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HomeMy WebLinkAbout14-0212 Supreme Co ...Q }. Pennsylvania COU COI11nl-O� pleas For Prothonotary Use Only: K il'.�e�rhet lir. V Docket No: CU County The information collected on this form is used solely for court administration purposes. This form does not supplement or replace the filing and service ofpleadings or other papers as required by law or rules of court. Commencement of Action: I Complaint 0 Writ of Summons Petition S 0 Transfer from Another Jurisdiction 0 Declaration of Taking E C Lead Plaintiff's Name: Lead Defendant's Name: T PR STONEHEDGE SQUARE LP JACK R. GREENAWALT, JR. I Are move dam requested? Yes ®No Dollar Amount Requested: 17 within arbitration limits y g re 9 (check one) [@ outside arbitration limits 0 N Is this a Class Action Suit? M Yes El No Is this an MDJAppeal? 0 Yes 0 No A Name of Plaintiff /Appellant's Attorney: Dana S. Plon, Esquire 0 Check here if you have no attorney (are a Self- Represented (Pro Se] Litigant) r Y T Nature of the Case Place an "X" to the left of the ONE case category that most accurately describes your PRIMARY CASE. If you are making more than one type of claim, check the one that you consider most important. E TORT (do not include Mass Tort) CONTRACT (do not include Judgments) CIVIL APPEALS I 0 Intentional 0 Buyer Plaintiff Administrative Agencies 0 Malicious Prosecution 0 Debt Collection: Credit Card 0 Board of Assessment 0 Motor Vehicle 0 Debt Collection: Other 0 Board of Elections 0 Nuisance 0 Dept. of Transportation 0 Premises Liability EA Statutory Appeal: Other S 0 Product Liability (does not include G mass tort) • ® Employment Dispute: E Discrimination Slander/Libel /Defamation 0 t rI C 0 Other: Employment Dispute: Other 0 Zoning Board } . 0 Other: I 1 @ Other: k O MASS TORT Breach of Commercial I 0 Asbestos Lease and Guaranty N J Tobacco 0 Toxic Tort - DES 0 Toxic Tort - Implant REAL PROPERTY MISCELLANEOUS 0 Toxic Waste 0 Other: [I Ejectment 0 Common Law /Statutory Arbitration B ® Eminent Domain /Condemnation 0 Declaratory Judgment 0 Ground Rent 0 Mandamus 0 Landlord /Tenant Dispute 0 Non - Domestic Relations 0 Mortgage Foreclosure: Residential Restraining Order PROFESSIONAL LIABLITY 0 Mortgage Foreclosure: Commercial 0 Quo Warranto [ 0 Dental 0 Partition 0 Replevin Legal 0 Quiet Title ❑ Other: ® Medical 0 Other: 0 Other Professional: F Updated 1/1/2011 of IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA PR STONEHEDGE SQUARE LP, by and through Its General Partner: PR Stonehedge Square GP LLC Plaintiffs aC vs JACK R. GREENAWALT, JR., TINA' . , GREENAWALT, 'MATTHEW D. POPIK and,,"= DANIELLE POPIK r %' 1 Defendant3 c� f CCD � ; NOTICE TO DEFEND - < YOU HAVE BEEN SUED IN COURT. IF YOU WISH TO DEFEND AGAINST THE CLAIMS SET FORTH IN THE FOLLOWING PAGES, YOU MUST TAKE ACTION WITHIN TWENTY (20) DAYS AFTER THIS COMPLAINT AND NOTICE ARE SERVED, BY ENTERING A WRITTEN APPEARANCE PERSONALLY OR BY AN ATTORNEY AND FILING IN WRITING WITH THE COURT YOUR DEFENSES OR OBJECTIONS TO THE CLAIMS SET 4 FORTH AGAINST YOU. YOU ARE WARNED THAT IF YOU FAIL TO DO SO THE CASE MAY PROCEED WITHOUT YOU AND A JUDGMENT MAY BE ENTERED AGAINST YOU BY THE COURT WITHOUT FURTHER NOTICE FOR ANY MONEY CLAIMED IN THE COMPLAINT OR FOR ANY OTHER CLAIM OR RELIEF REQUESTED BY THE PLAINTIFF. YOU MAY LOSE MONEY OR PROPERTY OR OTHER RIGHTS IMPORTANT TO YOU. YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW. THIS OFFICE CAN PROVIDE YOU WITH HIRING A LAWYER. IF YOU CANNOT AFFORD TO HIRE A LAWYER, THIS OFFICE MAY BE ABLE TO PROVIDE YOU WITH INFORMATION ABOUT AGENCIES THAT MAY OFFER LEGAL SERVICES TO ELIGIBLE PERSONS AT A REDUECED FEE OR NO FEE. CUMBERLAND COUNTY BAR ASSOCIATION 32 SOUTH BEDFORD STREET CARLISLE, PA 17013 1 -800- 990 -9108 717 -249 -3166 Peter A. Lesser, Esquire Dana S. Plon, Esquire dplon @sirlinlaw.com .Identification No. 59433/80361 SIRLIN LESSER & BENSON, P.C. 123 South Broad.Street, Suite 2100 Philadelphia, PA 19109 (215) 864 -9700 Attorney for Plaintiff PR STONEHEDGE SQUARE LP, by and through: CUMBERLAND COUNTY its General Partner: PR Stonehedge COURT OF COMMON PLEAS Square GP LLC 44 South Bayles Avenue Port Washington, NY 11050 V. JACK R. GREENAWALT, JR. 2570 Waterford Camp Hill, PA 17011 and TINA GREENAWALT 2570 Waterford Camp Hill, PA 17011 and MATTHEW D. POPIK 1728 Creek Vista Drive New Cumberland, PA 17070 and DANIELLE POPIK 1728 Creek Vista Drive New Cumberland, PA 17070 CIVIL ACTION - COMPLAINT AND NOW COMES plaintiff, PR Stonehedge. Square LP, by and through its General Partner: PR Stonehedge Square GP LLC, by and through its attorneys, Sirlin Lesser & Benson, P.C., and avers as follows: 1. Plaintiff is PR Stonehedge Square LP, a Delaware limited partnership, through its General Partner, PR Stonehedge Square GP LLC, with a business address of 44 South Bayles Avenue, Port Washington, New York. 2. Defendant is Jack R. Greenawalt, Jr., an adult individual, who resides at 2570 Waterford, Camp Hill, Pennsylvania 17011. 3. Defendant is Tina Greenawalt, an adult individual, who resides at 2570 Waterford, Camp Hill, Pennsylvania 17011. 4. Defendant is Matthew D. Popik, an adult individual, who resides at 1728 Creek Vista Drive, New Cumberland, Pennsylvania 17070. 5. Defendant is Danielle Popik, an adult individual, who resides at 1728 Creek Vista Drive, New Cumberland, Pennsylvania 17070. 6. Plaintiff is the owner of commercial property known as Stonehedge Square, 950 Walnut Bottom Road, Carlisle, Pennsylvania 1.7013, as successor to Cedar - Stonehedge LP and Stonehedge Center LLC. 7. On or about April 8, 2004, Stonehedge Center LLC, plaintiff's predecessor, entered into a Shopping Center Lease (hereinafter the "Lease ") with Carlisle Coffee Company for approximately 2,000 sq. ft. of commercial space at the premises known as Stonehedge Square, 950 Walnut Bottom Road, Carlisle, Pennsylvania 17013 (hereinafter the "Leased Premises "). A true correct copy of the Lease is attached hereto, made a part hereof and marked Exhibit . . 8. On or about December 31, 2007, Carlisle Coffee Company assigned its rights, title and interest in, to and under the Lease to Bradley L. Eline and Susan P. Eline. A true and correct of the Assignment and Assumption of Lease and Security Deposit dated December 31, 2007 is attached hereto, made a part hereof and marked Exhibit 9. On or about May 8, 2009, Bradley L. Eline and Susan P. Eline assigned their rights, title and interest in, to and under the Lease to defendants, Jack R. Greenawalt, Jr. and Tina Greenawalt d /b /a Carlisle Coffee and Smoothie Cafe (hereinafter collectively referred to as "the Greenawalts "). A true and correct copy of the Assignment and Assumption to Lease and Security Deposit is attached hereto, made a part hereof and marked Exhibit "C ". 10. On or about June 16, 2009, Cedar- Stonehedge LP, successor to Stonehedge Center LLC, and the Greenawalts entered into a Lease Modification Agreement. A true and correct copy of the Lease Modification Agreement dated June 16, 2009 is attached hereto, made a part hereof and marked Exhibit "D ". 11. On or about May 16, 2012, the Greenawalts assigned their rights, title and interest in, to and under the Lease to Heckepop, Inc. (hereinafter "Tenant "). A true and correct copy of the Assignment and Assumption of Lease and Security Deposit dated May 16, 2012 is attached hereto, made a part hereof and marked Exhibit "E ". 12. Plaintiff consented to the Assignment on the condition, among other things, that the Greenawalts shall not be relieved of their obligations under the Lease. A true and correct copy of Consent to Assignment dated May 16, 2012 is attached hereto, made a part hereof and marked Exhibit "F ". 13. On or about May 16, 2012, defendants, Matthew D. Popik and Danielle Popik (hereinafter collectively referred to as "Guarantors ") , guaranteed the obligations of Tenant under the Lease. A true and correct copy of the Lease Guaranty dated May 16, 2012 is attached hereto, made a part hereof and marked Exhibit "G ". 14. Pursuant to the Lease, Tenant is responsible for the payment of monthly rent in the amount of $3,166.67 plus common area maintenance charges, taxes, management fees and utilities. See Exhibits "A ". 15. Tenant is in default of the terms of the Lease by virtue of its failure to pay rent and proper charges in the amount of $34,235.26 through December 2013. A copy of the accounts receivable ledger is attached hereto as Exhibit "H" and made a part hereof. 16. In addition, Tenant is in default for vacating the Leased Premises prematurely prior to the end of the lease term. 17. Pursuant to paragraph 15(b) of the Lease, Tenant is responsible for rent and accelerated rent through the end of the lease term as a result of its default as well as attorneys' fees and costs. See Exhibit "A ". 18. By letter dated September 4, 2013, plaintiff provided Tenant and Guarantors with a written notice of default in accordance with the terms of the Lease. A true and correct copy of said letter is attached hereto, marked as Exhibit "I" and made a part hereof. 19. On or about September 27, 2013, plaintiff provided the Greenawalts with written notice of default in accordance with the terms of the Lease. A true and correct copy of said letter is attached hereto, made a part hereof and marked Exhibit "J ". 20. Despite demand, Guarantors and the Greenawalts have refused and continue to refuse to cure the monetary default. 21. The balance due pursuant to the Lease as of the end of the lease term is $37,006.00 plus additional attorney's fees, interest and costs. 22. All sums paid by Tenant including the security deposit have been credited to Tenant's account. WHEREFORE, plaintiff demands judgment in its favor and against defendants, Jack R Greenawalt, Jr., Tina Greenawalt, Matthew D. Popik and Danielle Popik, jointly and severally, in the amount of $71,241.26 plus interest, attorneys' fees and costs. A. IT SER DANA S. PLON Attorneys for Plaintiff January 6, 2014 VERIFICATION I, Le J U11 ate being duly sworn according to law, QaafiaeR depose and say that I am the 501 MertbeR a� bDNDJ of PR Stonehedge Square LP, plaintiff in this action, and hereby verify that the statements set forth in the foregoing Complaint are true and correct to the best of my knowledge, information, and belief. I understand that the statements in the foregoing Complaint - Civil Action are made subject to the penalties of 18 Pa. CSA Section 4904 relating to unsworn falsification to authorities. Date: EXHIBIT �� p„ LEASING ` LEGAL CONST. REVISED 5/10/04 SHOPPING CENTER LEASE This lease ( "Lease "), dated as of April 8, 2004, by and between STONEHEDGE CENTER LLC ( "Landlord ") and CARLISLE COFFEE COMPANY, INC. ('Tenant'); WITNESSETH WHEREAS, Landlord and Tenant wish to enter into this Lease on the terms and conditions hereinafter set forth; NOW, THEREFORE, in consideration of the foregoing, and the mutual covenants and agreements contained in this Lease, Landlord and Tenant hereby agree as follows: Tenant hereby leases the Leased Premises (as hereinafter defined) from Landlord and Landlord hereby leases the Leased Premises to Tenant upon, and subject to, the terms and conditions hereinafter set forth in this Lease. 1. Basic Lease Provisions and Definitions In addition to other terms defined in this Lease, the following terms whenever used in this Lease with the first letter of each word capitalized shall have only the meanings set forth in this Article, unless such meanings are expressly modified, limited or expanded elsewhere herein. (A) Shopping Center Location Depicted on Exhibit "A " located in Stonehedge Square, Carlisle PA Site No.: SPAC.1075/ (B) Leased Premises The premises identified as Plot 31 shown hatched on Exhibit "A" (see Article 2). (C) Floor Area 2_,000 square feet (see Article 2). (D) Lease Commencement Date The date tha `�'.z,, S Leann k; fully Pnfeewted by beth L-andleFd and enest (see Article 2). bra (E) Rent Commencement Date 120 days after the Lease Commencement Date (see Article 2). (F) Lease Term Commencing on the Lease Commencement Date and ending at 12 noon on the Expiration Date (see Article 2). (G) Expiration Date The last day of the calendar month in which occurs the 3rd -5th anniversary of the day immediately preceding the Rent Commencement Date (see Article 2). (G -1) Additional Term: One, #wee-(3 ) five 5 year option'. See Rider "B" Article 34. (H) Base Rent Schedule — Original Term (see Article 3): LEASE YEAR ANNUAL BASE RENT MONTHLY INSTALLMENT 1 $27,000.00 $2,250.00 2 $27,810.00 $2,317.50 3 $28,644.30 $2,387.03 4 $29.500.00 $2,458.33 5 $30,385.00 $2,532.08 :ORIGINAL D'.00UMENT:. . DQ REMOVE ' FRO:M�'OFFICE . -. 1 C:\sea \client \TEMP \Carlisle Coffee Company 1 -4D7G9 Proj ID SPAC1075.doc - "' - -' KE 5/10/2004 (H)(i) Base Rent — Additional Term (see Articles 3 & 34): LEASE YEAR ANNUAL BASE RENT MONTHLY INSTALLMENT 1 $2800 0A _$31.296.55 $2 2 608.04 2 $30,385.9 $32.235.45 $2,532.08$2,686.29 3 $31 $33.202.51 $2 2 766.88 4 $34,198.59 $2,849.88 5 $35,224.54 $2,935.38 (1) Tax Rent As provided in Article 5(B). (J) Common Area Rent As provided in Article 8(D). (K) Percentage Rent Rate N/A (L) Security Deposit $5,646.68 (see Article 6). (M) Permitted Use The retail sale of prepared gourmet coffee products (special blends, latte, cappuccino, mocha, frappacino etc.), and ready -to -eat high end individual breakfast and lunch sandwiches, soups, pastries, desserts, beverages, chocolates, candies and ice cream products in an upscale environment. (1M-1) Exclusive Use: Landlord agrees that during the term of this Lease.. but only for so Iona as Tenant is open for business using the Leased Premises for the Exclusive Use (as hereinafter defined) and is not otherwise in default of any of the provisions of this Lease. Landlord will not hereafter enter into a new lease in the Shopping Center with a tenant whose principal permitted use is the retail sale of branded gourmet coffee (the "Exclusive Use") The aforementioned restriction shall not apply to: (1) any existing tenants at the Shopping Center or their successors, assigns or replacements• or (ii) any existing leases at the Shopping Center as same may be renewed extended modified or amended (except that no such modification shall grant a tenant the right to engage in the Exclusive Use where such tenant did not previously have that right): (iii) any store measuring 10.000 sq. ft. or more. (N) Landlord's Notice Address 3333 NEW HYDE PARK ROAD See Article 29 SUITE 100 P.O. BOX 5020 NEW HYDE PARK, NEW YORK 11042 -0020 (0) Tenant's Notice Address CARLISLE COFFEE COMPANY, INC. 17 EAST EPPLEY DR. CARLISLE, PA 17013 (0-1) Tenants Bank Account Name of Bank: See Article 3(A) Account Name: Account Number: Routing Number: Bank Address (P) Broker(s): BENNETT WILLIAMS REALTY, INC. 135 N. GEORGE ST., 4TH FLOOR YORK, PA 17401 ATTN: GARY RUSSELL 2 C:\sea \client \TEMP \Carlisle Coffee Company 1 -4DJG9 Pro) ID SPAC1075.doc KE 5/13/2004 FOR INFORMATION ONLY Tenant's Telephone No. Tenant's Fax No. Tenant's Email Address. Tenant's Business Name CARLISLE COFFEE COMPANY Tenant's Contact Person Guarantor(0 MARY GRACE ANDERS 17 E. EPPLEY DR. CARLISLE, PA 17013 PATRICK S. ANDERS 17 E. EPPLEY DR. CARLISLE, PA 17013 The following riders and exhibit(s) are hereby incorporated into this Lease and made a part of this Lease for all purposes: Riders Rider "A" General Lease Provisions (set forth In Articles 2 through 29). Rider "B" Specific Lease Provisions (beginning with Article 30). Exhibit(s): Exhibit "1 " — Authorization Agreement for Direct Debit Exhibit "A" -- Site Plan Exhibit "B" — Intentionally Omitted Exhibit "B -1" — Contractor's Indemnity Agreement IN WITNESS WHEREOF, the parties hereto have executed this Lease under their respective hands and seals as of the day and year first above written. , LANDLORD: STONEHEDGE CENTER L!_C By: MART Limited Partnership, Sole Memhrr WITNESSES TO LANDLORD: By: KimEast Real Estate Investment Trust, -'en artner By' j� all . ate seal) Print Name: t Title: ZV `L.. Date Signed: —U I-f WITNESSES TO TENANT: TENANT: CARLISLE CQFF�EE COMPANY, I1C. -l , //�� II1I V'4'&/ Q Y Z�JI t ( ��r< So �tfndGe�a — d�PN�li,ie (corporate eal) Print Name: Groff AYlcftifS Title: �� a2 cin Date Signed: Fed Tax ID #: aO _ 1ob39�3 3 C:\sea \client \TEMP \Carlisle Coffee Company 1 -4DJG9 Proj ID SPAC1075.doe KE 5/1012004 FOR TENANT (CORPORATION) : State of ?a ) r' )ss.: County of (KXAkAk<VJ ) On the _ 9 day of in the year 2004 before me, the undersigned, a Notary Public in and for said State, personally appeared personally known to me to be the individual whose name is subscribed to the within instru nt and acknowledged to me that he /she executed the same in his capacity, and that by his /her signature on the instrument, the individual or the person upon behalf of which the individual acted, executed the instrument. lOTARN►>L 191. ry Pub 'c Kiti►y,L.;f�umnw+t, Not�fl.Public B:ocough of cati6ie, Cumbetiand Co.; PA Icy Gcrumis;ion`Ezpires Aug. 11, 2007 4 CAsea \client \TEMP \Carlisle Coffee Company 1 -4DJG9 Proj ID SPAC1075.doc KE 5/10/2004 LEASING LEGAL CONST. 1 RIDER A 2 3 THIS RIDER A IS ATTACHED TO AND HEREBY MADE A PART OF THE LEASE 4 (SEE ALSO RIDER B . 5 6 2. Leased Premises. Term and Lease Year. The Leased Premises is deemed to contain an amount of 7 square feet of space equal to the Floor Area. The Lease Term shall commence on the Lease Commencement Date. 8 Tenant's duty to pay Rent shall commence on the Rent Commencement Date. Notwithstanding the foregoing, 9 Tenant shall pay the first month's installment of Rent on the execution hereof, which amount shall be applied as 10 a credit against such first monthly installment as and when due (and promptly refunded if, for any reason other 11 than Tenant's default, this Lease should be terminated by reason of non - occurrence of the Lease Commencement 12 Date). The Lease Term shall expire without notice on the Expiration Date. On request, Tenant shall promptly 13 deliver to Landlord a statement in recordable form specifying the Rent Commencement Date and the Expiration 14 Date. The first Lease Year shall commence on the Rent Commencement Date and end on the last day of the 15 calendar month in which occurs the first anniversary of the day immediately preceding the Rent Commencement 16 Date. Each succeeding Lease Year shall be each successive twelve (12) month period. 17 18 3. (A) Base Rent. Tenant shall pay Base Rent at the annual rates specified in the Base Rent 19 Schedules in monthly installments paid in advance on the first day of each calendar month in the amount 20 specified in the Base Rent Schedule. If the Rent Commencement Date is not the first of the month, the Base Rent 21 for that month shall be prorated. Should any Lease Year contain more or less than twelve (12) months, Base 22 Rent and other charges for such Lease Year shall be appropriately prorated. In addition, Tenant shall pay 23 Landlord as additional rent each month throughout Lease Term including renewal terms, on the same date that 24 monthly payments of Base Rent is due, an amount equal to four (4 %) percent of the Base Rent that is payable for 25 that month, as a management fee to Landlord. All other payments to be made by Tenant pursuant to this Lease 26 are in addition to Base Rent. Tenant shall pay Base Rent and other Rent to Landlord or its designated agent at 27 the address Landlord designates without Landlord making any demand. However. Tenant hereby authorizes 28 Landlord to debit Tenant's Bank Account as set forth in Article 1(0 -11 above on the first day of each month in 29 advance for the full amount of such monthly Rent Payment then due. Tenant shall maintain sufficient funds in 30 Tenant's Bank Account at all times during the Lease Term to enable Landlord to debit such account for the 31 monthly Rent then due, the failure of which shall constitute a default for the failure to pay Rent Simultaneously 32 with Tenant's execution of this Lease. Tenant shall complete and submit to Landlord the authorization form 33 attached hereto as Exhibit "1' together with a voided check from Tenant's Bank Account The obligation to pay 34 Base Rent and other Rent is an independent, unconditional covenant. 35 36 (B) Additional Rent. Base Rent and all other payments required to be made by Tenant 37 (including, but not limited to, Percentage Rent, Tax Rent and Common Area Rent) shall be deemed to be and are 38 included in the term "Rent ", which shall be due and payable on demand or together with the next installment of 39 Base Rent, whichever first occurs, unless another time is expressly provided for payment. Landlord shall have the 40 same rights and remedies for non - payment of any Rent or any Security Deposit as for a non - payment of Base 41 Rent. Tenant shall pay to Landlord any tax or license fee measured by Tenant's Rents receivable by Landlord; 42 these taxes shall be paid by Tenant each month with monthly payments of Rent. 43 44 (C) Late Rent. Any Rent or Security Deposit not paid when due shall bear interest on the payable 45 amount from the date when due until paid at the Default Interest Rate (see Article 24(B)); in addition, Tenant 46 shall pay Landlord a Fifty ($50.00) Dollar late charge for each overdue payment. 47 48 (D) Notwithstanding any alleged defense, counterclaim or offset against Rent, Tenant shall 49 continue to pay Landlord all Rent faithfully when due, including during the continuance of any dispute or legal 50 action, subject to reimbursement if directed by the Court. Tenant hereby consents to the entry in any court 51 action of an order requiring Tenant to make Rent payments during the pendency of the lawsuit. All Rent due to 52 Landlord under this Lease shall, unless and to the extent expressly otherwise provided herein, be due and 53 payable without any notice, demand, offset, credit, deduction or abatement. 54 55 4. Percentage Rent. 56 57 (A) i addit ta B Rent Tenant . ha4l p r an -d t he . ..,t,:. h ,,..al,...a_ shall be 58 d under this.... (herein _____ " Pe rc e ntage 59 60 61 62 63 1. 1. 1. T b the whet-her ..I.7 Ar leased an n e dit :.I b ..L. ..1 ee k barter er 64 65 ineluding sales or leasee aeress the eounter, er-ders WEein en the telepherie, mail eFders, sales er leases Win 66 meehanieal devises or. vending maelaines, depesits Fiat refunded te eastemere, and hPjaway salea; exeept Lhat the 67 foRewing shaR not he ineluded -a.s Gress Sales, or if previously ineluded in any Lease Weamr, may be dedueted 68 69 gnid at th Fk. X eared. Premises (blat net for- ret-%Fns ef merehandise sold at any e0her- rtere, by ea-taleg 9 70 aver the intemel; unless the internet order originated At the I eased -PFAm-ises -3- was previeasly 4­Wded in 71 Gress Oak— retail sales tWEes eha ed speeifleally asd aepamtely as s;aeh te eusteffiers and paid b3 72 TenaRtat t�_ Z-h. There shall net be any de"e-tien fram Qrens Sales b reason of TeaariVs bein 74 75 he inelu.ded-in Gress Sgleg sn dplivefy to, or the laying away of merehandise fer, the ­ ­ the- 76 ­ I i " ' ­ RAPP. frpaant shall bear the risk and expense 4 nen eal-lept-ion f�ar bad debts er fer gr-e g 77 eredit. 78 5 CAsea \clienATEMP \Carlisle Coffee Company 1 -4DJG9 Proj ID SPAC1075.doc KE 5/10/2004 I (GI Payment e€ P + ° The pereen •age Rent payable fermi Year-shal 2 3 daring that Lease enr expeek Gress ialer BRAP fer that Lease Year- The Qrnss Sales Base shall be red'aGed 4 pr9perganately for any Lease Year 5 Pent paid in that I -ease YpnF is Ips. affieunt speeified IB the Base Rent 6 7 tl;at menth whiZ' '--f-whieh Gress Sales exeeeds the Gress Sales Base ThereaAer-, Reat daring eaeh Lease Year an the fifteenth (15thl 8 9 10 Sal it Oa r 11 12 . bandlerd as the ease Enay re"ire, an that Tena-at shall pay Lhe egEaet amount of Pereentage Rent dae. Each - 13 Year shal he P separate eeinputati ' G . and Pereentage Rent for that year, and Gress Sal ^ any 14 Lease Year eqd the Pereentage Rent dae thereen shaN have ne bearing en Gress Sales of any other Lease Year-.- 15 16 (D) Statements. w (1 5 t h) Elay a w a o f eae sa mont 17 aer. th 18 °"° °'° 19 I 20 21 and k s sheA b s by Tenant's p Fineipal executive e° }eer Tenant -still 22 keep in its main 9Mee (Weated %ithia the sentinental United States) Lsae atad eemplete beeks and reeA�dr of all 23 Gress Sales made by Tenant er by any ether- persBn in aeeerdanee m4th genere4ly aeeepted pAneiples of retai 24 25 eheeks, eheele _' ' mente, semputer printeate, beeks EW aeeeuat, depesit slips, eater, slips, sale 26 reeeipts, r-eaerds 11 inventery records, and eash register- tapes. Landlord or its agents may audi 27 all Af!pennnt'n hm., a and reeerEls, whieh Teriant shell keep intaet fer at least feFty eight (48) menthr after the 28 Lease Year to whieh they pertain. T andlgFd'a fhil"rp tR R13dit rhRJ net b-An edmissign ef the rzerreetness ef 30 actually dae. if G from selleeting at any time the Pereentage Rent (2 pereent er mere of the true 31 arneurit Tenant shall pay to Lendlerd iri addkAeft to the additi n R ent d ue, the expienses e 32 33 w pay under pretest and, wigiia ninety (90) days aftei having Feeeived 4-andlerd's netise. ef the 34 35 in ... iti.. en he eheek, er- "re te sue witbAn ninety (90) days, shall be A ;va-ive;: At el_gi­i�. The burden of pr 36 te r13w l_AnZFd'm Gress Sales figures as being iBRRA43FRtP R14AII be-613 :PPMRJJ* 19 1 AlldlArd rO; AM.a. 1AF; An 37 39 fees and expenses regardless ef whether We e;;e*nin ig met tben beld er is hold at a, later dete. 40 41 S. Taxes 42 43 (A) "Taxes" shall mean and include: real estate taxes; special and general assessments; water and 44 sewer rents and charges including connection or hookup charges; governmental license and permit fees; charges 45 for public or private easements benefiting the Shopping Center; taxes on' other areas made available for the 46 common use or benefit of tenants; and all other governmental impositions and charges (extraordinary as well as 47 ordinary, foreseen and unforeseen) which are either a lien on the Shopping Center or which are charged, levied or 48 assessed on, or imposed in connection with, the use, occupancy or possession of the Shopping Center and /or 49 which appear as a charge on a tax bill given to Landlord by any official taxing authority; and also: taxes, license 50 fees or other charges. measured by the rents receivable by Landlord from the Shopping Center; occupancy taxes, 51 rent taxes or similar taxes; interest on Tax installment payments; and costs, expenses and fees (including 52 attorneys' and other experts' fees) incurred by Landlord in contesting and /or negotiating Taxes with the public 53 authorities (regardless of the outcome). If any method of taxation prevailing on the date of this Lease is altered, so 54 as a substitute for the whole or any part of real estate taxes there is levied or assessed a different kind of tax, the 55 different tax shall be deemed included in "faxes ". However, "Taxes" shall not include any inheritance, estate, 56 succession, transfer, gift, franchise or corporation tax, or any net income tax, profit tax or capital tax imposed on 57 Landlord. A copy of an official tax bill with respect to a governmental tax or assessment shall be conclusive 58 evidence of the amount of a Tax. If the Leased Premises is located in Indiana, Ohio, Illinois or other jurisdiction 59 wherein taxes are billed or are payable in arrears after they have accrued or become a lien, then the taxes that are 60 payable or become a lien during tine calendar year in which the Lease Term is in effect shall be included in the 61 definition of "Taxes" shared in or payable by Tenant according to the provisions of this Article even though the 62 payment thereof relates to a fiscal tax period in whole or in part occurring prior to the commencement of or after 63 the end of the Lease Term. 64 65 (B) Tax Rent. As additional Rent for each year of this Lease (herein called "Tax Rent "), Tenant 66 shall pay to Landlord, in the manner hereinafter described, the product obtained by multiplying the aggregate 67 amount of all Taxes payable by Landlord for the then- current calendar year (or other fiscal or accounting year 68 selected by Landlord) by a fraction ('Tenant's Fraction "), the numerator of which is the Floor Area of the Leased 69 Premises, and the denominator of which is the total square foot ground floor area which is leasable for space (on 70 the first day of the month in question) inside all the buildings of the Shopping Center. Notwithstanding the 71 foregoing, at Landlord's option Tenant's Fraction may be appropriately adjusted with regard to Tax Rent and /or 72 Common Area Rent to exclude from the denominator thereof any land and /or building(s) .in the Shopping Center 73 leased to or occupied by third parties with separate tax lots or parcels for which they directly or indirectly pay 74 taxes and /or who are responsible for maintenance of portions of the Common Areas; provided that in such event 75 the Taxes or Common Area expenses paid by such third parties shall also be excluded in the computation of 76 Taxes and /or Yearly Common Area Costs. On the first day of each month in advance, Tenant shall pay to 77 Landlord one - twelfth (I/ 12th) of Tenant's annual share of Tax Rent, based on Landlord's estimates. If after the 78 end of a calendar year (or other accounting period used by Landlord) the total of the monthly payments by Tenant 79 for the year has exceeded or is less than the annual Tax Rent actually due, then an adjustment shall be made 80 with appropriate payments to or repayment by Landlord. If the amount of any Taxes payable during the current 6 C:\sea \client \TEMP \Carlisle Coffee Company 1 -4DJG9 Proj ID SPAC1075.doc KE 5/10/2004 1 year shall not yet have been billed by the taxing authority, the monthly Tax Rent then payable shall be based on 2 the amount of the corresponding Taxes for the immediately preceding Tax year, subject to immediate adjustment 3 (and payment of the adjusted amount by Tenant) when such Taxes are billed or determined. 4 5 (C) Other Taxes. In addition to Tax Rent, Tenant shall pay in the entirety: all taxes attributable 6 to its signs, personal property and leasehold interests; all taxes allocable or attributable to any improvements 7 made by Tenant to the Leased Premises; all occupancy taxes or other taxes on its right to occupy the Leased 8 Premises; all taxes on its Rent (including sales taxes on rents if the Leased Premises is in Florida or in any other 10 Jurisdiction imposing a tax on rents); and other taxes imposed on tenants generally. 11 6. Security Deposit. On Tenant's execution of this Lease, Tenant shall pay the Security Deposit as 12 security for the payment of Rent and Tenant's performance and observance of this Lease. If Tenant defaults 13 under this Lease, or defaults under any other lease or agreement between Tenant and Landlord or an affiliate of 14 Landlord, Landlord may, without prejudice to any other available remedy, apply the Security Deposit towards 15 curing the default and compensating Landlord for loss or damage arising from the default. At the expiration of 16 this Lease, if Tenant is not in default or otherwise liable to Landlord, the unapplied balance of the Security 17 Deposit shall be returned to Tenant. Tenant expressly agrees that Tenant shall have no right to apply any portion 18 of the Security Deposit against any of Tenant's obligations to pay any Rent hereunder and, if Tenant shall seek to 19 so apply such Security Deposit, Tenant shall on demand pay liquidated damages to Landlord in a sum equal to 20 two (2) times the amount of any such unpaid' Rent. If at any time Landlord applies part or all of the Security 21 Deposit, Tenant shall pay to Landlord the amount so applied, thereby increasing the amount of the Security 22 Deposit, so Landlord shall have on hand the full original Security Deposit at all times. If Landlord transfers this 23 Lease and Security Deposit to a transferee, the transferor shall be released from liability with respect to the 24 Security Deposit or its return to Tenant; Tenant shall look only to such transferee with respect thereto. Tenant 25 shall not mortgage, assign (except in connection with an assignment of this Lease by Tenant which is otherwise 26 expressly permitted by the terms of this Lease) or encumber its interest in the Security Deposit, and any attempt 27 to do so shall be void. On any transfer by Tenant of its interest in this Lease, the Security Deposit shall be 28 deemed transferred to the assignee. In case of Tenant's bankruptcy, reorganization or other similar proceeding, 29 the Security Deposit shall be deemed applied first to payment of unpaid Rent for periods prior to institution of the 30 proceedings. 31 32 7. Construction: Condition of Premises: Ownership of Installations. if Tenant enters the Leased 33 Premises before the Lease Commencement Date (but Tenant shall have no such right except as may be expressly 34 provided herein or with Landlord's prior written consent), Tenant shall pay for all utilities used by it and defend, 35 indemnify and hold Landlord harmless from all liability which arises out of Tenant's possession, use or occupancy 36 during that period, and provide Landlord with the insurance referred to in Article 11(B), and the indemnity in 37 Article I I(A) shall apply and all other provisions of this Lease shall apply except (unless otherwise stated herein) 38 the obligation to pay Rent. Promptly following the Lease Commencement Date, Tenant shall (subject to the 39 provisions of Article 10(E) and all other relevant provisions of this Lease) fixture and do all other work, including 40 installation of an attractive exterior lighted sign above its entrance (see Article 10 (D)), in order to prepare the 41 Leased Premises for business operation, and complete its work, fully staff and stock its store, and open for 42 business promptly. Prior to operating its business, Tenant shall obtain a permanent certificate of occupancy (or 43 local equivalent) for the Leased Premises from the local government agency having jurisdiction, and obtain final 44 lien waivers for all work performed by or on behalf of Tenant and forward copies to Landlord. Tenant shall, at its 45 sole expense, in doing any work, making any installations, or in using, occupying or conducting business at the 46 Leased Premises, comply with all present and future laws, regulations, building codes and /or fire codes applicable 47 to the Leased Premises or to Tenant's use or occupancy or business operations, including those that relate to 48 installation, maintenance, upgrading, repair or replacement of sprinkler systems, and Tenant shall defend, 49 indemnify and hold Landlord harmless from all losses, damages, claims, liabilities, costs and expenses (including 50 legal fees) arising out of any failure to do so. Tenant acknowledges Landlord has made no representations, and 51 that Tenant has conducted all inspections it deems necessary (including environmental), and Tenant accepts the 52 Leased Premises and all the equipment, apparatus, plumbing, heating, air conditioning, electric, water, waste 53 disposal and other systems relating thereto and the parking lot and the other Common Area of the Shopping 54 Center "AS IS "• Landlord is not obligated with respect to either the Leased Premises or the Shopping Center to 55 make any improvements, changes, installations, do any work, make any alterations, repairs or replacements, 56 clean out the Leased Premises, obtain any permits, licenses or governmental approvals, or spend any money 57 either to put Tenant in possession or to permit Tenant to open for business, unless Landlord has so agreed 58 expressly in this Lease. All work other than that to be performed by Landlord, if any, shall be accomplished by 59 Tenant. Unless specifically stated otherwise in this Lease, it is deemed that Landlord shall have tendered 60 possession of the Leased Premises to Tenant immediately on the signing of this Lease by both Landlord and 61 Tenant. Except for signs, merchandise counters or other easily removable similar trade fixtures installed by 62 Tenant at Tenant's expense, all alterations, decorations, additions and improvements made by Tenant to the 63 Leased Premises and including all heating and air- conditioning units, equipment and apparatus at the Leased 64 Premises and other fixtures such as ceiling tiles and grids, lighting fixtures, electric panel boxes, plumbing, 65 boilers, floor and wall coverings, alarm systems, lights, toilet fixtures, partitions, doors and utilities shall be 66 deemed attached to the freehold and be Landlord's property. 67 68 a. Common Area. 6 0 (A) Subject to subparagraph (C) below, Tenant and its employees, agents, and customers shall 71 have the non - exclusive right to the use or benefit of the Common Area to the extent and in the manner reasonably 72 designated by Landlord. Except as otherwise specified in this Lease, Landlord agrees to make all necessary 73 repairs and maintenance to the Common Area to keep same in good condition, including without limitation 74 sweeping and removal of snow, ice and refuse, and landscaping maintenance. 75 76 (B) "Common Area" is hereby defined as the 'areas, equipment and facilities of the Shopping 77 Center or of any other land or property made available by Landlord for the safety, benefit or convenience of 78 tenants or their employees, subtenants, customers or invitees, including (as illustrations and not in limitation): 79 parking areas, driveways, truck serviceways, sidewalks and curbs; entrances and exits from the adjacent streets; 80 traffic lights, traffic islands, landscaped areas; meter rooms outside individual stores; fencing; lighting facilities; 7 CAsea \client \TEMP \Carlisle Coffee Company 1 -4DJG9 Proj ID SPAC1075.doc KE 5/10/2004 1 sprinkler system serving landscaped areas or buildings; sewage system outside tenants stores; roofs, gutters and 2 downspouts and the exterior of outside walls (excluding storefronts) of buildings (without implying Tenant may 3 use the roofs or outside walls); directional or safety signs; Landlord's pylon signs (but not individual tenant 4 panels) and sign panels which identify the Shopping Center. Tenant acknowledges that the Common Area may 5 also be used by occupants and /or invitees of properties adjoining the Shopping Center, whether or not owned, 6 leased or managed by Landlord. 7 8 (C) Landlord reserves the right at any time and from time to time to change or reduce or add to 9 the Common Area. Common Area shall be under the exclusive control and management of Landlord (including 10 the hours that parking area lights are kept on). Tenant and its employees shall park their vehicles only in areas 11 Landlord designates for employee parking; if after one (1) violation notice is given to Tenant a violation recurs by 12 Tenant or its employees parking vehicles in other than the employee parking areas, Landlord shall have the right 13 to tow such vehicle at Tenant's expense and /or levy an assessment against Tenant of Forty ($40.00) Dollars per 14 day for each vehicle. Tenant shall not permit trucks or delivery vehicles used by it to be parked in the Common 15 Area except where Landlord permits. Landlord may impose parking charges by meter or otherwise, and may close 16 parts of the Common Area for such time necessary in its opinion to prevent a dedication or accrual of rights in 17 other persons, or to discourage non - customer parking. Landlord shall not be obligated (although it may do so at 18 its option) to keep the Common Area illuminated to any extent after 10:00 P.M. or on any Sunday or legal holiday. 19 20 (D) Common Area Rent. In the manner hereinafter described, Tenant shall pay its share of 21 "Yearly Common Area Costs" (hereinafter defined). On the first day of each month in advance, Tenant shall pay to 22 Landlord, as additional Rent (herein called "Common Area Rent ") one - twelfth (1/ 12th) of Tenant's annual share of 23 Landlord's estimated Yearly Common Area Costs, based on Landlord's estimates. Tenant's annual share shall be 24 determined by multiplying the Yearly Common Area Costs by Tenant's Fraction (defined in Article 5(B)). For a 25 portion of a calendar month at the beginning of the Lease Term, Tenant's Common Area Rent shall be prorated for 26 that month. 27 28 (E) "Yearly Common Area Costs" shall mean and include all costs and expenses incurred by 29 Landlord during each twelve (12) month period selected by Landlord for repair, replacement, painting, 30 maintenance, protection and operation of the Common Area and for insurance carried by Landlord with respect 31 to the Shopping Center, and insurance - related costs and expenses, including (by way of examples and not in 32 limitation) costs or expenses relating to: parking areas, sidewalks and the like; storm water and sewage drainage 33 and sanitary control; removal of snow, ice and refuse (including use of trash compactors); gardening and 34 landscaping; roof repairs; insuring buildings and improvements and insuring for bodily injury and property 35 damage liability, including but not limited to insurance premiums, administrative costs, fees, losses within 36 deductibles and /or self - insured retentions for All-Risk Property Insurance including Flood and Earthquake, Boiler 37 & Machinery, Loss of Rents, Crime, General and Umbrella liability, Workers Compensation, Automobile, and such 38 other coverages and limits as Landlord in its sole discretion deems reasonable in the circumstances, all at the fair 39 premiums (which may be at the manual rates applicable to the Shopping Center), as if the Shopping Center was 40 the only property owned by Landlord (but notwithstanding the foregoing, such insurance may be obtained 41 through blanket policies as long as Landlord makes a reasonable allocation of premiums to the Shopping Center, 42 which allocation may be based, inter alia, upon a uniform per square foot rate for all or substantially all property 43 owned by Landlord and affiliates); controlling or eliminating puddling or flooding; lighting (including electric cost 44 and maintenance, repair or replacement of fixtures, poles and replacement of bulbs); depreciation of property 45 owned or rental paid for maintenance machinery and equipment; taxes or fees payable by Landlord for any 46 pylons, equipment or other facilities; costs of security patrols, directing parking and policing the Common Areas, 47 compensation to personnel engaged in managing the Common Areas and implementing services related thereto; 48 plus fifteen (15 %) percent of the Yearly Common Area Costs as a fixed administrative fee for Landlord. landlord 49 may cause any services such as sweeping, snow removal, repairs, etc. to be provided by independent contractors, 50 and the fees paid shall be part of Yearly Common Area Costs. 51 52 (F) After the end of each accounting period, Landlord shall furnish a statement of the actual 53 Yearly Common Area Costs. If the statement shows that the aggregate of Tenant's monthly estimates paid by 54 Tenant during such year was less than Tenant's Common Area Rent payable, Tenant shall pay the balance due to 55 Landlord within ten (10) days after receipt of the statement; and if the 'statement shows that the aggregate paid 56 exceeded the Common Area Rent payable, Landlord shall either refund the excess or credit Tenant's next accruing 57 Common Area Rent. Tenant's failure to give Landlord written notice of any objection to the statement within 58 ninety (90) days after the statement is sent shall constitute a waivei of any objection or inquiry Tenant may have 59 about the statement or for any examination of Landlord's records. Tenant acknowledges Landlord has not made 60 any warranty, agreement or representation of any kind as to the actual dollar amount of Yearly Common Area 61 Costs or Tenant's dollar share thereof. 62 63 9. Use of Premises. 64 65 (A) Tenant agrees that the Leased Premises will be used and occupied by Tenant and /or any 66 assignees, sublessees or other occupants (which reference to assignees, sublessees and other occupants shall not 67 be deemed to give Tenant any rights to assign or sublet not specifically set forth in this Lease), or permitted to be 68 used and occupied by Tenant or any other such parties only for the Permitted Use, and for no other use or 69 purpose. Without limitation of the foregoing, no sale or dispensing of lottery tickets, other gaming tickets, liquor, 70 wine or beer shall be permitted. 71 72 (B) Neither Tenant, nor any stockholder owning more than five (5 %) percent of Tenant if Tenant is 73 a corporation, nor any person, corporation, partnership, trust, other firm or entity which controls or is controlled 74 by Tenant or is under common control with Tenant, nor any subsidiary of Tenant, nor any business organization 75 affiliated with Tenant (including but not limited to any so -called "parent company" of Tenant), nor any guarantor 76 of this Lease, will, directly or indirectly, conduct business at, or sell from, any other place situated within a radius 77 of three (3) miles of the Leased Premises any merchandise or services which Tenant is permitted to sell or engage 78 in any business which Tenant is permitted to conduct in the Leased Premises. A Portable coffee cart shall not be 79 deemed a violation of this restriction. In addition to, and not in 'exclusion of, any remedy available to Landlord for 80 breach of the foregoing covenant, so long as this covenant is being breached, Tenant's annual Base Rent shall be 8 C:1sea \client \TEMP \Car1isle Coffee Company 1 -4DJG9 Proj ID SPAC1075.doc KE 5/10/2004 I increased by twenty-five (25 %) percent. and, in addition, ene helf (I j2) of all-eftho "ar-Ars Sales". (see Arfiele 4(B)) 2 realized in ef: ffem sueh other plape Ahall] he A-Fidpd to-the Qrnnn Ralpr ef the Leased premises fer the pufpese e 3 eamplating the Pereentage I�emt ander this Lease, with the same effieet as theugh sueh ether- GrRAF; Sales ha 4 5 7 8 (C) Tenant's Business Operations. Tenant shall keep the Leased Premises open and operated 9 continuously for business not less than from 10:00 A.M. to 9:00 P.M. each day for at least six (6) days a week. 10 Tenant will continuously operate its business therein with diligence and in a manner calculated to produce 11 maximum Gross Sale dr en sea pr e m i ses, a n ti mes f u l ly , h aA 12 Tenant agrees for its part: no auction, fire, bankruptcy, going out of business or similar 13 sale will be conducted or advertised; no merchandise will be kept, displayed or sold or business solicited in the 14 Shopping Center outside the Leased Premises; no nuisance will be permitted; nothing shall be done which is 15 unlawful, offensive or contrary to any law, ordinance, regulation or requirement of any public authority, or which 16 may be injurious to or adversely affect the quality of the Leased Premises or the Shopping Center; no part of the 17 Leased Premises (especially the electric and plumbing systems, the floor and walls) will be overloaded, damaged or 18 defaced; no holes will be drilled in the stone or brickwork or in concrete; no emission of any objectionable odors, 19 sounds or vibrations will be permitted. Tenant shall procure all licenses and permits required for the use or 20 occupancy of the Leased Premises and the business being conducted therein; the storefront, show windows and 21 signs will be repaired, kept clean, in good condition and lighted; all merchandise and other property will be 22 delivered to or removed from the Leased Premises only by the rear entrance; all garbage, waste and refuse will be 23 kept stored temporarily inside the Leased Premises and then regularly removed at Tenant's expense and, if 24 Landlord opts, only by a contractor designated by Landlord, provided its price is competitive. Tenant will comply 25 with the requirements of law and any requests of governmental agencies or Landlord in its recycling program, if 26 any. Tenant will cooperate with Landlord and other tenants of the Shopping Center in promotions and 27 advertising, and will become a dues - paying member of any merchants' association (or similar organization) of 28 which fifty (50 1 /6) percent or more of the tenants are members; or alternatively will become a participant of and 29 shall pay its prorata share (based on Tenant's relative store size) of any expenses incurred by a marketing or 30 promotion fund program now or hereafter established by Landlord, if any. Tenant shall comply with all 31 environmental statutes, regulations or ordinances now or hereinafter enacted by government authorities. Tenant 32 shall not permit the release, emission, disposal, dumping or storage of hazardous wastes (as defined in any such 33 laws) into the septic tanks, sewers, or other waste disposal facilities of the Shopping Center or anywhere in the 34 Shopping Center, or permit same to be brought into the Leased Premises at any time, and the provisions of this 35 sentence shall survive the expiration of the Lease Term. Tenant shall keep the Leased Premises free of rodents, 36 vermin, insects and other pests, and provide regular exterminator services at its own expense, and, if Landlord 37 opts, only by an exterminator designated by Landlord provided its price is competitive. Tenant agrees that 38 nothing will be done or omitted which may either prevent the obtaining by Landlord or other tenants of insurance 39 on any part of the Shopping Center or on any personal property thereon, or which may make void or voidable any 40 such insurance, or which may create any extra premiums for any insurance carried by Landlord or other tenants. 41 Tenant will comply with all requirements and recommendations of Landlord's and Tenant's insurance companies 42 and any rating bureau or similar organization, including maintaining and servicing fire extinguishers. 43 44 (D) Tenant agrees to: stock only merchandise Tenant intends to offer for sale at retail at the 45 Leased Premises; use for office or other non - selling purposes only incidental space required for Tenant's retail 46 business conducted at the Leased Premises; not sell goods, solicit business or distribute advertising matter in the 47 Common Areas; not permit pr-epe atie., of fe er - ,.691dn bak4n- °-a ny frying in the Leased Premises. 48 Tenant shall keep the sidewalks, curbs and ramps (if any) adjacent to the Leased Premises (and also all delivery 49 areas, ramps, loading areas and docks used exclusively by Tenant) in good and safe condition and free from snow, 50 ice, and rubbish. Tenant will not make or suffer any waste of the Leased Premises. Landlord shall not be liable 51 for the act of any other tenant or person who may cause damage to or who may interfere with Tenant's use or 52 occupancy of the Leased Premises or Tenant's business. 53 54 10. (A) Utilities. Tenant shall provide and pay for its own heat, air conditioning, water, gas, 55 electricity, sewer, sprinklers and other utilities, including application deposits and installation charges for meters 56 and for consumption or use of utilities. Tenant shall pay its share of sewer charges, if any, reasonably 57 determined by Landlord, Tenant shall keep sufficient heat to prevent the pipes from freezing. If Tenant receives 58 utilities through a meter,which supplies utilities to other tenants, Tenant will pay to Landlord Tenant's 59 proportionate share (based on relative square feet size of premises) of the total meter charges. If Tenant receives 60 water from Landlord's well or other sources made available by l.a^.dlord (instead of from ar independent water 61 company), Tenant shall pay for the water, and all costs and expenses for the maintenance, repair, replacement 62 and installation of tanks, electric costs, machinery, apparatus and facilities shall be included in Yearly Common 63 Area Costs. See Article 32 re Utility Deregulation. 64 65 (B) Landlord's Repairs. Weather permitting and subject to Article 25, Landlord shall, within 66 thirty (30) days after receiving written notice from Tenant, commence to make repairs, if necessary, to the 67 foundation, the roof, the exterior of the perimeter demising walls, and the load - bearing structural columns and 68 beams in the Leased Premises, except that if those repairs or replacements arise from (i) repairs, installations, 69 alterations, or improvements by or for Tenant or anyone claiming under Tenant, or (ii) the fault or misuse of 70 Tenant or anyone claiming under Tenant, or (iii) default under the Lease by Tenant, then Tenant shall make such 71 repairs or replacements or, if Landlord elects, Landlord may perform the work for Tenant's account and Tenant 72 shall reimburse Landlord for expenses incurred. in determining Landlord's repair obligations, the expression 73 "roof' does not include rooftop heating or air conditioning units or other structures or apparatus on the roof 74 serving the Leased Premises, and "exterior of walls" does not include the storefront, any glass, windows, window 75 sashes or frames, doors, door frames or hardware, trim or closure devices, or any part of the interior side of 76 perimeter walls, all of which shall be Tenant's duty to repair,. maintain, and replace. In any event, Landlord's 77 obligation shall be only to make the repairs for which it is hereby obligated, and Landlord shall not be liable for 78 loss of business, loss of sales, loss of profits or for any consequential damages or for damage to or loss of personal 79 property, fixtures or any interior elements of the Leased Premises which are Tenant's responsibility to maintain or 80 repair. 9 CAsea \client\TENV \Carlisle Coffee Company 1 -4DJG9 Proj ID SPAC1075.doc KE 5/10/2004 1 2 (C) Tenant's Repairs. Subject to Article 10(B), Tenant shall maintain and make all repairs and 3 alterations of every kind with respect to the Leased Premises (including necessary replacements) to keep it in good 4 condition (including the storefront, glass, signs, ceilings, interior walls, interior side of perimeter walls, floor, floor 5 coverings, plumbing, electric, heating and air conditioning, sprinklers and lighting fixtures), and do all required by 6 any laws, ordinances or requirements of public authorities. From the point they serve the Leased Premises 7 exclusively, whether located inside or outside, Tenant shall make all repairs, replacements and alterations 8 necessary to maintain in good condition all lines, apparatus, and equipment relating to utilities (including 9 heating, air conditioning, water, gas, electricity and sewerage). Tenant shall maintain a service contract for the 10 regular seasonal maintenance of the heating, ventilating and air conditioning ( "HVAC ") system servicing the 11 Leased Premises with a reputable HVAC contractor at all times during the Lease. Additionally, if any air 12 conditioning or heating equipment (or other utility equipment) is damaged by vandalism, fire, lightning or other 13 casualty, Tenant shall repair (and if necessary, replace) the equipment, notwithstanding Article 13. Tenant's sole 14 right of recovery shall be against Tenant's insurers for loss or damage to stock, furniture and fixtures, equipment, 15 improvements and betterments. 16 17 (D) Signs: Painting: Displays. No sign, other advertising or any other thing may be placed by 18 Tenant or anyone claiming under Tenant on the exterior of the Leased Premises or on the interior part of either 19 windows or doors without Landlord's prior written approval, which shall not be unreasonably withheld. Tenant 20 shall not utilize flashing, painted, neon or moving signs or lights. Tenant shall not paint, decorate or mark any 21 part of the exterior. Tenant shall install an exterior lighted sign or signs in compliance with Landlord's 22 specifications and keep the sign(s) (which must first be approved by Landlord in writing) lit to at least 10:00 P.M. 23 or to such later hour as requested by Landlord, on all days of the year. 24 25 (E) Alterations. No alterations, installations, additions or improvements will be made to the 26 Leased Premises by Tenant without Landlord's prior written approval. All installations, alterations, additions and 27 improvements, whether by Landlord, Tenant or any other person (except only sign panels and movable trade 28 fixtures installed at Tenant's cost) shall become, when made, a part of Landlord's real estate, and on termination 29 of the Lease Term shall be surrendered with the Leased Premises in good condition. Tenant shall not have the 30 right to remove sign boxes. Tenant shall defend, indemnify and save Landlord harmless from and against all 31 claims for injury, loss or damage to person or property caused by or resulting from doing any work. For any work 32 that involves penetration of the roof surface or alterations to the sprinkler system, Tenant shall employ Landlord's 33 contractor. The maintenance of any portion of the roof affected by Tenant's work will be Tenant's responsibility, 34 including repair of areas of the Shopping Center that might be affected due to water penetration through Tenant's 35 roof work. 36 37 (F) Permits: Liens. All repairs, installations, alterations, improvements and removals by Tenant 38 will be done in a good and workmanlike manner, only after Tenant has procured all permits. Tenant shall comply 39 with all laws, ordinances and regulations of public authorities and with all Landlord's and Tenant's insurance 40 requirements and with insurance inspection or rating bureaus; and the work shall not adversely affect the 41 structure of the building. Tenant shall pay promptly when due all charges for labor and materials in connection 42 with any work done by or for Tenant or anyone claiming under Tenant. Tenant shall remove, by payment, 43 bonding or otherwise, within ten (10) days after notice, all liens placed on the public record or in any way against 44 Landlord's interest or the Shopping Center resulting from any act of Tenant or from labor or materials being 45 alleged to have been supplied at the request of Tenant or anyone claiming under Tenant, failing which Landlord 46 may remove such lien and collect all expenses incurred from Tenant as additional Rent. Tenant shall protect, 47 defend, save harmless and indemnify Landlord and any fee owner of the Shopping Center from and against all 48 losses, claims, liabilities, injuries, expenses' (including Iegal fees), lawsuits and damages arising out of any lien 49 described above. 50 51 11. Indemnity: Insurance 52 53 (A) Tenant shall protect, defend, save harmless and indemnify Landlord and any fee owner of the 54 Shopping Center from and against all losses, claims, liabilities, injuries, expenses (including legal fees), lawsuits 55 and damages of whatever nature either (i) claimed to have been caused by or resulted from any act, omission or 56 negligence of Tenant or its subtenants, concessionaires, employees, contractors and invitees no matter where 57 occurring, or (ii) occurring in the Leased Premises except if caused by Landlord's negligence. Landlord shall not be 58 liable under any circumstances for any injury or any loss or damage to or interference with any merchandise, 59 equipment, fixtures, furniture, furnishings or other personal property or the business operations of Tenant or 60 anyone in the Leased Premises occasioned by (i) the act or omission of persons occupying other premises, or (ii) 61 any defect, latent or otherwise, in any building or the equipment, machinery, utilities, or apparatus, or (iii) any 62 breakage or leakage of the roof, walls, floor, pipes or equipment, or (iv) any backing up, seepage or overflow of 63 water or sewerage, or (v) flood, rain, snowfall or other elements or Acts of God. If Tenant makes shopping carts 64 available, the foregoing indemnity provisions shall apply to claims relating to the shopping carts; and Tenant shall 65 remove all shopping carts from the Common Area, as often as necessary, so that the Common Area shall remain 66 reasonably free of carts. All shopping carts shall be stored inside the Leased Premises. 68 (B) Tenant's Insurance. Tenant shall maintain with financially responsible insurance companies 69 with a Best Rating of not less than A -VIII licensed to do business in the state where the Leased Premises is 70 located: (i) a commercial general liability insurance policy with respect to the Leased Premises and its 71 appurtenances (including signs) naming Landlord as an additional insured with a limit of not less than One 72 Million ($1,000,000) Dollars; (ii) an umbrella liability insurance policy with a limit of not less than Five Million 73 ($5,000,000) Dollars, naming Landlord as an additional insured; (iii) an insurance policy to cover heating and 74 air - conditioning units against damage for one hundred (100 1 /6) percent replacement cost; (iv) an all-risk property 75 insurance policy insuring all merchandise, leasehold improvements, furniture, fixtures and other personal 76 property, all at their replacement cost; and (v) business interruption insurance. Tenant shall deliver these 77 insurance policies or certificates thereof, satisfactory to Landlord, issued by the insurance company to Landlord 78 with premiums prepaid on the signing of this Lease and thereafter at least thirty (30) days prior to each expiring 79 policy. Tenant's failure to deliver the policies or certificates shall constitute a default. All policies of insurance 80 required of Tenant shall have terms of not less than one (1) year. 10 C:\sea \client \TEMP \Carlisle Coffee Company 1 -4DJG9 Proj ID SPAC1075.doc KE 5/10/2004 1 2 12. Access to Premises. Landlord shall have the right (but shall not be obligated) to enter the Leased 3 Premises upon reasonable notice (and in case of emergency without notice) to inspect or to show the Leased 4 Premises to prospective'purchasers, mortgagees or tenants, or to make any repairs, alterations, or improvements, 5 including the installation or removal of pipes, wires and other conduits serving other parts of the Shopping 6 Center. Commencing six (6) months prior to expiration of the Lease Term, Landlord may maintain "For Rent" 7 signs on the front or any other part of the exterior of the Leased Premises. Landlord further reserves to itself the 8 exclusive right at any time to use the roof, foundation or exterior walls (other than Tenant's storefront) for placing 9 of signs or equipment or for purpose of additional construction. 10 11 13. Fire or Other Casualty. 12 13 (A) Tenant shall give prompt notice to Landlord in case of fire or other damage to the Leased 14 Premises. 15 16 (B) If (i) the Shopping Center buildings are damaged to the extent of more than twenty -five (25 %) 17 percent of the replacement cost, or (ii) the Leased Premises are damaged to the extent of more than fifty (50 %) 18 percent of the replacement cost, or (iii) the Leased Premises are damaged and Tenant is not operating for business 19 as required by Article 9(C) at the time the darnage.occurs, or (iv) the Leased Premises are damaged and less than 20 one (1) year of the Lease Term remains unexpired at the time of the fire or other casualty; then in any of such 21 events, Landlord may terminate this Lease by notice to Tenant within ninety (90) days after such event, and on 22 the date specified in the notice this Lease shall terminate. If the damage renders the Leased Premises wholly or 23 partially untenantable, there shall be a fair and equitable proportionate abatement of all Rent during that period. 24 Unless this Lease is terminated as aforesaid, this Lease shall remain in effect. 25 26 (C) If this Lease is not terminated by Landlord, this Lease shall continue in full force and effect 27 (Tenant waives any right conferred by any applicable law to terminate this Lease based on the damage), and 28 Tenant shall, immediately on notice from Landlord, remove its fixtures, other property and debris as required by 29 Landlord, and then Landlord shall rebuild the Leased Premises to the condition existing when the Leased 30 Premises was originally delivered to Tenant; and on completion thereof Tenant shall restore Tenant's property and 31 promptly reopen for business. Tenant shall use the proceeds of any recovery on Tenant's insurance policies for 32 restoration of improvements made by Tenant to the Leased Premises, and for restoration and /or replacement of 33 Tenant's equipment, trade fixtures and inventory, and to cover any business interruption loss. 34 35 (D) The "replacement cost" as used in (B) above shall be determined by a reputable contractor 36 selected by Landlord. 37 38 14. Eminent Domain. 39 40 (A) If the whole of the Leased Premises are taken in connection with eminent domain, the Lease 41 Term shall expire when Landlord shall be divested of its title, and Rent shall be apportioned as of that date. 42 43 (B) If only part of the Leased Premises is taken in connection with eminent domain, and the 44 ground floor area of the Leased Premises is reduced by more than twenty (20 %) percent and the part remaining 45 shall not be reasonably adequate for the operation of Tenant's business, Landlord or Tenant may terminate this 46 Lease by giving the other notice within thirty (30) days after such taking, effective as of the date possession of the 47 taken part shall be required for public use; and Rent shall be apportioned as of that date. 48 49 (C) Tenant shall not have any claim for an award based on the loss of its leasehold estate. 50 Landlord shall be entitled to all damages in connection with eminent domain. Tenant shall execute any 51 instrument required by Landlord for the recovery of damages and to remit to Landlord any damage proceeds 52 recovered, except, however, Tenant may recover for itself damages for movable trade fixtures which were installed 53 by Tenant, provided Landlord's award is not reduced thereby. 54 55 15. Defaults and Remedies. 56 57 (A) Any one of the following shall be a default by Tenant: (1) if Tenant fails to pay Rent, Security 58 Deposit or other money, or to provide a certificate of insurance or to provide an estoppel certificate as required by 59 Article 27 when due, or (2) if Tenant fails to perform or observe any agreement or condition on its part to be 6v peilormed or observed, other than the defaults meratior,ed in the preceding clause (i) or in clauses (3) thwirgli (8) 61 below, or if Tenant defaults under any other lease or agreement between Tenant and Landlord or an affiliate of 62 Landlord, or (3) if Tenant's leasehold interest is levied on, attached or taken by any process of law, or (4) if Tenant 63 makes an assignment of its property for the benefit of creditors, or (5) if any bankruptcy, insolvency or 64 reorganization proceeding or arrangement with creditors (whether through court or by proposed composition with 65 creditors) is commenced by or against Tenant, or (6) if a receiver or trustee is appointed for any of Tenant's 66 property, or (7) if this Lease is transferred to or devolves on, or the Leased Premises is occupied by, anyone other 67 than Tenant except if specifically permitted by this Lease, or (8) if Tenant closes the Leased Premises or ceases 68 doing business at the Leased Premises. 69 70 (B) If (i) a default described in subsection 15(A)(1) or in subsections 15(A)(3) through (7) inclusive 71 occurs, or (ii) a default described in subsections 15(A)(2) or 15(A)(8) occurs and continues for more than fifteen 72 (15) days after written notice from Landlord, then in any of such cases Landlord or its agent shall have the right 73 to enter the Leased Premises and dispossess Tenant and all other occupants and their property by legal 74 proceedings, use of reasonable force (under the conditions allowed in Article 15(F) hereof) or otherwise. Tenant 75 hereby waives any claim it might have for trespass or conversion or other damages if Landlord exercises such 76 remedies. Landlord may exercise the remedies just mentioned without terminating this Lease. As an 77 independent cumulative right to obtaining possession without terminating this Lease, Landlord shall have the 78 right to terminate this Lease by giving Tenant written notice specifying the day of termination (which shall be not 79 less than five (5) days from the date of the notice), on which date this Lease and all of Tenant's rights will cease as 11 C:\sea \client \TEMP \Carlisle Coffee Company 1 -4DJG9 Proj ID SPAC1075.doc KE 5/10/2004 1 a conditional limitation, as if that date specified in Landlord's notice was the original date for expiration of this 2 Lease; but in all cases Tenant shall remain liable as hereinafter provided. 3 4 (C) Notwithstanding any re -entry, dispossession or termination of the Lease by Landlord, Tenant 5 will remain liable for damages to Landlord in an amount equal to the aggregate of all Rents and other charges 6 required to be paid up to the time of such re -entry, dispossession or termination, and for Landlord's damages 7 arising out of the failure of Tenant to observe and perform Tenant's covenants and, in addition, for each month of 8 the period which would otherwise have constituted the balance of the Lease Term, Tenant shall pay any deficiency 9 between the monthly installment of Base Rent plus the Tax Rent, Common Area Rent and all other Rent that 10 would have been payable, less the net amount of the rents actually collected. by Landlord from a new tenant, if 11 any. Tenant will not be entitled to any surplus. Furthermore, Tenant will be liable to Landlord for all the 12 expenses Landlord incurs for: legal fees related to obtaining possession and making a new lease with another 13 tenant; brokerage commissions in obtaining another tenant; and expenses incurred in putting the Leased 14 Premises in good order and preparing for re- rental (together herein referred to as "Reletting Costs "). In addition, 15 Landlord may relet the Leased Premises, or any part thereof, for a term, which may be less or more than the 16 period which would have constituted the balance of the Lease Term and may grant reasonable concessions or free 17 rent to a new tenant. Landlord's refusal or failure to relet the Leased Premises to a new tenant shall not release 18 or affect Tenant's liability; and Landlord shall not be liable for failure or refusal to relet, or for failure to collect 19 rent under such reletting. For the par-pose of Geraputing Landlord's damages d1ae to less ef Pereentage Rents 2 0 subsequent to teFminatien, the Gr-ess Sales ef the - r- e—ea—h —le—a-se Yes* eammeneing with the 22 duxiag the highe o f th th (43) L ease Y effs pr t temainatien. 23 24 (D) In any case where Landlord shall have the'right to hold Tenant liable monthly, Landlord may 25 elect to declare all the aggregate Rent for the remaining balance of the Lease Term, as well as all accrued Rent, to 26 be immediately due and payable, and to recover immediately against Tenant all such Rent (for loss of a bargain 27 and not as a penalty). 28 29 (E) In the event of a breach or threatened breach of the Lease by Tenant, Landlord shall have the 30 right of injunction and the right to invoke any remedy allowed at law or in equity. Remedies of landlord provided 31 in this Lease are cumulative and not exclusive, and may be exercised (at the option of Landlord) concurrently or 32 otherwise. Remedies provided in this Lease are in addition to, and not in lieu of, any other remedies Landlord 33 may have in law or in equity. 34 35 (F) Tenant waives service of notice of intention to re -enter or institute legal proceedings to that 36 end. Tenant waives any rights of redemption as to the Leased Premises granted by any present or future laws. 37 The words "re- enter" and "re- entry" are not restricted to their technical legal meaning. Notwithstanding the 38 foregoing, Landlord may use force to dispossess Tenant only in the following situations: (i) it is pursuant to law or 39 a court order, judgment or decree; or (ii) Tenant has not been operating its business at the Leased Premises open 40 to the public as required by Article 9(C) of this Lease for more than seven (7) business days. 41 42 (G) Landlord and Tenant mutually agree that they hereby waive trial by jury in any action, 43 proceeding or counterclaim brought by either against the other as to any matters arising out of or in any way 44 connected with this Lease, or their relationship as Landlord and Tenant, or Tenant's use or occupancy. Tenant 45 agrees that no counterclaim or setoff will be interposed in any action by Landlord based on non - payment of Rent, 46 even if such counterclaim or setoff is based on Landlord's alleged breach of a duty to repair or alleged breach of 47 quiet enjoyment, or any other allegation. 48 49 16. Subordination. 50 51 (A) This Lease is and shall be subject and subordinate to (i) all ground or underlying leases and 52 all mortgages or other security instruments now or hereafter affecting such leases, and (ii) all mortgages or other 53 security instruments now or hereafter affecting the fee title of the Shopping Center, and (iii) all renewals, 54 modifications, consolidations, replacements and extensions of any such ground or underlying leases and 55 mortgages. This clause shall be self - operative and no further instrument of subordination shall be required by 56 any ground or underlying lessee or by any mortgagee. In confirmation of such subordination, Tenant agrees to 57 execute promptly any instrument that Landlord may request. However, at the option of Landlord or such 58 mortgagee or ground lessor or secured party, this Lease shall be paramount to such mortgage or ground or 59 underlying lease or other security instrument. 60 61 (8) If Landlord transfers its interest in the Leased Premises, or proceedings are brought for 62 foreclosure of any such mortgage or in case of sale in lieu thereof, or termination of any such ground or 63 underlying lease, Tenant shall, if requested, attom to the transferee, mortgagee, ground or underlying lessor and 64 deliver, without charge, instruments acknowledging the attotnment.. 65 66 (C) Provided Tenant was given notice in writing of the names and addresses to which the notices 67 should be sent, Tenant shall give prompt written notice of any default by Landlord to the holder of all mortgages, 68 ground or underlying leases and security holders if the default is such as to give Tenant a right to (i) terminate 69 this Lease, or (ii) reduce the Rents or any other sums reserved, or (iii) credit or offset any amounts against Rents. 70 Any mortgagee, ground lessor or security holder shall have the right to cure Landlord's default within sixty (60) 71 days after receipt of Tenant's notice; and no such rights or remedies shall be exercised by Tenant until the 72 expiration of said sixty (60) days (or such additional time reasonably required to cure such default). 73 74 17. Waiver of Subroeation. Landlord and Tenant hereby release the other and all other persons 75 claiming under it from any and all liability for loss or damage caused by any casualty, even if the casualty is 76 brought about by the fault or negligence of the other or of any persons claiming under the other. Tenant and 77 Landlord will cause their respective insurance companies to endorse their respective insurance policies to permit 78 a waiver of subrogation. 79 12 C:\sea \client \TEMP \Carlisle Coffee Company 1 -4DJG9 Proj ID SPAC1075.doc KE 5/10/2004 1 18. ASSIGNMENT OR SUBLETTING. Tenant shall not assign, mortgage, pledge, or otherwise transfer or 2 encumber this Lease or any interest therein, either voluntarily or by operation of law or otherwise, or sublet the 3 whole or any part of the Leased Premises, or permit occupancy by anyone .else, without obtaining on each 4 occasion Landlord's prior written consent, which consent Landlord may deny, regardless of commercial 5 reasonableness. In any assignment the assignee must assume this Lease in writing on Landlord's form. Any 6 request for Landlord's consent to assignment or subletting shall be accompanied by payment of Landlord's 7 reasonable administrative and attorneys' fees relating thereto. Notwithstanding an assignment or subletting or 8 occupancy of the Leased Premises by anyone other than Tenant, Tenant shall not be released (nor shall any of 9 Tenant's constituents, partners, or members be released) from any obligations, liabilities or covenants under this 10 Lease and shall continue to remain responsible. Landlord shall have the right to collect Rent from any assignee, 11 subtenant or other occupant without releasing Tenant or waiving any right against Tenant for its default under 12 this Article and without accepting the payor as a permitted tenant Any transfer of (i) any corporate stock of; (ii) 13 any partnership interest in; or (iii) any membership interest in Tenant, or a merger, consolidation or liquidation of 14 or by Tenant, either voluntarily or by operation of law, shall be deemed an assignment and require Landlord's 15 consent as stated above. Under any circumstances, Landlord shall not be liable for any money damages to 16 Tenant or Tenant's proposed assignee, transferee or subtenant for refusal to consent to any assignment or 17 transfer of this Lease or transfer of Tenant's corporate stock or sale of Tenant's business or for refusal to consent 1S to any subletting; Tenant's sole remedy shall be specific performance. in any araignment of t 19 P _ _ assignmenh any Per-eentage Rent due 21 22 the Leave Y-e&F bears to thFee hundred siiay fiw 13651). Th eemputatien ef 9-ry Pereentage Rent payable to 23 Lanellerd for- the unelapsed pert-ion ef that Lease Year Rhall he hesed en a "Gmss Sales Bass" redured in thp 24 2 27 Notwithstanding the foregoing if Tenant requests Landlord's consent to assign this Lease and Tenant has not 28 been in monetary or other material default under the Lease at any time Landlord shall not unreasonablv 29 withhold its consent to an assignment of the Lease to a new occupant of the Leased Premises who would use the 30 Leased Premises for the purpose described in Article 1(_M). If Tenant requests Landlord's consent to sublease the 31 Leased Premises, and Tenant has not been in monetary or other material default under the Lease at any time 32 Landlord shall not unreasonably withhold its consent provided: (iltthe sublessee uses the Leased Premises for the 33 purpose described in Article 1(M), and (ill Tenant derives substantially all of its income with respect to the Leased 34 Premises from subleasing substantially all of the Leased Premises. and (iii) the Sub Rent (as defined below) or 35 other amounts received or accrued by Tenant from subleasing the Leased Premises is not based on the income or 36 profits of the subtenant. excluding for this purpose the portion of Sub Rent if any, based on a fixed percentage or 37 percentages of gross receipts or gross sales of the subtenant. In the event Tenant obtains Landlord's consent to 38 sublet the Leased Premises. and the amount of minimum rent and additional rent payable by the sublessee to 39 Tenant under the sublease Ithe "Sub Renee exceeds the aggregate of all Base Rent, Percentage Rent Tax Rent 40 and Common Area Rent payable by Tenant to Landlord under this Lease for such period ( "Lease Rent") the 41 Tenant shall promptly remit to Landlord each month. due and navable as additional Rent the difference between 42 the amount of Sub Rent and the amount of Lease Rent. In no event shall Tenant assign convey, sell pledge 43 mortgage, hypothecate or otherwise encumber, transfer or dispose of all or any part of this Lease or Tenants 44 leasehold estate hereunder (collectively referred to as a `Transfer"I with or to any person, or in any manner. which 45 could cause any portion of the Rent received by Landlord pursuant to this Lease to fail to qualify as "rents from 46 real property" within the meaning of section 856fdl of the Internal Revenue Code of 1986, as amended (the 47 "Code "), or any similar or successor provision thereto or which would cause any other income of Landlord to fail to 48 qualify as income described in section 856(x112) of the Code, and any such Transfer shall be void. 49 50 19. Surrender and Holding Over. 51 52 (A) At the expiration or sooner termination of the tenancy hereby created, Tenant shall surrender 53 the Leased Premises in the same condition as the Leased Premises were in upon delivery of possession thereof to 54 Tenant, reasonable wear and tear excepted, and damage by unavoidable casualty excepted to the extent that the 55 same is covered by Landlord's Property insurance policy, and Tenant shall surrender all keys for the Leased 56 Premises to Landlord and shall inform Landlord of all combinations on locks, safes and vaults, if any, in the 57 Leased Premises. Prior to the expiration or sooner termination of this Lease, Tenant shall remove any and all 58 trade fixtures, equipment and other unattached items which Tenant may have installed, stored or left in the 59 Leased Premises or elsewhere in the Shopping Center, and Tenant shall not remove any plumbing or electrical 60 fixttire5 or equipment, heating or air conditioning equipment, floor coverings (including but not limited to wail -to- 61 wall carpeting), walls or ceilings, all of which shall be deemed to constitute a part of the freehold and /or leasehold 62 interest of Landlord, nor shall Tenant remove any fixtures or machinery that were furnished or paid for by 63 Landlord (whether initially installed or replaced). The Leased Premises shall be left in a broom -clean condition. If 64 Tenant shall fail to remove its trade fixtures or other property as provided in this Article 19, such fixtures and 65 other property not removed by Tenant shall be deemed abandoned by Tenant and at the option of Landlord shall 66 become the property of Landlord, or at Landlord's option may be removed by Landlord at Tenant's expense, or 67 placed in storage at Tenant's expense, or sold or otherwise disposed of, in which event the proceeds of such sale 68 or other disposition shall belong to Landlord. In the event Tenant does not make any repairs as required by this 69 Article 19(A), Tenant shall be liable for and agrees to pay Landlord's costs and expenses in making such repairs. 70 Tenant's obligations and covenants under this Article 19(A) shall survive the expiration or termination of this 71 Lease. 72 73 (B) If Tenant or anyone claiming finder Tenant remains in possession of the Leased Premises after 74 the expiration of the Lease Term, that person shall be a tenant at sufferance; and during such holding over, Base 75 Rent shall be twice the rate which was in effect immediately prior to the Lease Term expiration, which Landlord 76 may collect without admission that Tenant's estate is more than a tenancy at sufferance, and all the other 77 provisions of this Lease shall apply insofar as the same are applicable to a tenancy at sufferance. 78 79 20. No Waivers by Landlord. No waiver by Landlord of any breach by Tenant or requirement of 80 obtaining Landlord's consent shall be deemed a waiver of any other provision of this Lease or any subsequent 13 C:\sea \client \TEMP \Carlisle Coffee Company 1 -4DJG9 Proj ID SPAC1075.doc KE 5/10/2004 I breach of the same provision or a waiver of any necessity for further consent. No payment by Tenant or 2 acceptance by Landlord of a lesser amount than due from Tenant shall be deemed to be anything but payment on 3 account, and Tenant's payment of a lesser amount with a statement that the lesser amount is payment in full 4 shall not be deemed an accord and satisfaction. Landlord may accept the payment without prejudice to recover 5 the balance due or pursue any other -remedy. Landlord may accept payments even after default by Tenant 6 without prejudice to subsequent or concurrent rights or remedies available to Landlord under this Lease, at law or 7 in equity. Any acceptance by Landlord of any payment by Tenant after termination or expiration of the Lease 8 Term shall not constitute an acceptance of Rent but rather a payment to Landlord on account of Tenant's use and 9 occupancy of the Leased Premises. All rights and remedies which Landlord may have under this Lease, at law or 10 in equity shall be distinct, separate and cumulative and shall not be deemed inconsistent with each other, and 11 any or all of such rights and remedies may be exercised at the same time. 12 13 21. Rules and Regulations. Tenant shall observe and comply with, and cause its employees, agents, 14 subtenants and concessionaires, and their employees and agents, to observe and comply with all reasonable rules 15 and regulations promulgated by Landlord by notice to Tenant; and such rules and regulations shall have the 16 same force and effect as if originally contained in this Lease. 17 18 22. Failure of Performance by Tenant. If Tenant shall default under this Lease, Landlord may, at its 19 election, immediately or at any time thereafter, without waiving any claim for breach of agreement, and without 20 notice to Tenant, cure such default or defaults for the account of Tenant, and the cost to Landlord thereof plus 21 interest at the Default Interest Rate shall be deemed to be additional Rent and payable on demand. Tenant shall 22 pay all reasonable attorneys' fees, costs and expenses incurred by Landlord in enforcing the provisions of this 23 Lease, suing to collect Rent or to recover possession of the Leased Premises, whether the lawsuit or other action 24 was commenced by Landlord or by Tenant. 25 26 23. Limitations on Landlord's Liability. 27 28 (A) "Tenant" includes the persons named expressly as Tenant and its transferees, successors and 29 assigns. Except as otherwise provided in the next sentence, the agreements and conditions contained in this 30 Lease shall be binding on and inure to the benefit of the parties hereto and their transferees, legal representatives, 31 successors and assigns. "Landlord" means only the then -owner of the lessor's interest in this Lease, and in the 32 event of a transfer by Landlord of its interest in this Lease, the transferor shall be automatically released from all 33 liability and obligations as Landlord subsequent to the transfer. 34 35 (B) Notwithstanding anything to the contrary, Tenant agrees it will look solely to Landlord's 36 estate in the Shopping Center as the sole asset for collection of any claim, judgment or damages or enforcement of 37 any other judicial process requiring payment of money. Tenant agrees that no other assets of Landlord shall be 38 subject to levy, execution or other procedures to satisfy Tenant's rights or remedies. 39 40 24. Miscellaneous Provisions. 41 42 (A) This Lease contains the entire agreement between the parties. No oral statements or 43 representations or written matter not contained in this Lease shall have any force or effect. This Lease cannot be 44 modified or terminated orally, but only by a writing signed by Landlord and Tenant, except for a termination 45 expressly permitted by this Lease. If more than one party executes this Lease as "Tenant ", the liability of all such 46 signatories shall be joint and several. Neither this Lease nor any memorandum, assignment or memorandum of 47 assignment thereof shall be recorded in any public records without Landlord's prior written consent. Any 48 obligation of any person shall be performed at its sole cost and expense unless a contrary intent is expressly 49 stated herein. Each provision of this Lease shall be valid and enforced to the fullest extent permitted by law. 50 However, if any provision or the application thereof to any person or circumstance shall to any extent be declared 51 by a court to be invalid, the remainder of this Lease shall not be affected. If Tenant is not an individual, the 52 person signing this document on behalf of Tenant represents (by such signature) that he or she has been duly 53 authorized by Tenant to execute this document and that such signature creates a binding obligation of Tenant. 54 55 (B) The term "Default Interest Rate" as used in this Lease shall mean Fifteen (15 %) Percent per 56 annum or the maximum interest rate permitted by law, whichever is lower. 57 58 (C) Notwithstanding any other provision in this Lease, Landlord in its absolute discretion shall 59 have the option at any time to relocate Tenant from the Leased Premises (the "Present Premises ") into other `vv premises in the Shopping Center (the "New Premises "). Landlord shall give Tenant at least for y -free (45) days 61 notice of the approximate date Tenant is to to the'New Premises. Landlord shall prepare the New Premises 62 to the same extent that Landlord prepared the Present Premises. The New Premises will have at least the same 63 amount of square foot area as the Present Premises. Landlord shall pay for moving Tenant's inventory, fixtures, 64 equipment and storefront sign to the New Premises. Tenant shall cooperate with Landlord. Tenant will move its 65 business operations to the New Premises within forty -eight (48) hours after Landlord notifies Tenant that it has 66 substantially completed its preparation of the New Premises. The New Premises will become the Leased Premises 67 (instead of the Present Premises) and the Rent (including all of Tenant's other monetary obligations to Landlord 68 under the Lease) and all the other terms and provisions of this Lease shall be transferred to and continue to 69 apply, without interruption, to the New Premises from and after the date Tenant is required to move pursuant to 70 this Article. 72 Notwithstanding the rovisions of Article 24(CI to the contrary , in the event that in Tenant's reasonable opinion. 73 the space to which Landlord intends to relocate Tenant is not comparable to the Present Premises, then Tenant 74 shall have the right as its sole and exclusive remedy, to terminate the Lease on sixty (601 days prior written notice 75 to Landlord within thirty (30) days after the date Tenant receives notice from Landlord that it m ust relocate. 1f 76 Tenant does not provide this notice timely then Tenant shall be required to relocate in accordance with _L 77 no tice In the event Tenant elects to terminate the Lease pursuant to this Article Landlord sh h ave the option, 78 within thirty (30) days of receipt of Tenant's notice to terminate to rescind its request to relocate, If Landlord 79 rescin this request Tenant's notice to terminate shall be deemed a nullity and the Lea shall continue in full 80 force and effect., If Landlord does not rescind its request to relocate within thirty (301 days of receipt of Tenant's 14 C:\sea \client \TEMP \Carlisle Coffee Company 14DJG9 Proj ID SPAC1075.doc KE 5/10/2004 1 notice to terminate. the Lease shall terminate on the sixtieth (601 day after Landlord's receipt of Tenants notice of 2 termination referred to above. 4 If Landlord requires Tenant to relocate pursuant to this Article then in addition to the work described in Article 5 24(C1. Landlord also shall 1) prepare Tenant's walls and floors in a manner similar to how the walls and floors of 6 the Present Premises are finished as of the date Landlord advises Tenant that it will be required to relocate: and 7 2) not only move Tenant's trade fixtures canopy sign inventory , and equipment but also install these items in the 8 New Premises. 9 10 (D) The submission of this Lease to Tenant for review or Tenant's signature does not constitute a 11 reservation of, or option for, the Leased Premises or a representation that the business terms have been approved 12 by executive officers of Landlord or Landlord's Board of Directors. This Lease shall become effective as a lease or 13 agreement only upon mutual execution and delivery. A lease which is not fully executed and delivered cannot be 14 enforced in any manner and cannot give rise to any rights or remedies. 15 16 (E) The provisions of this Lease shall be construed, in all respects, without reference to any rule or 17 canon requiring or permitting the construction of provisions of documents against the interest of the party 18 responsible for the drafting of the same, it being the intention and agreement of the parties that this Lease be 19 conclusively deemed to be the joint product of both parties and their counsel. Furthermore, the parties agree that 20 this Lease may be executed with revision markings (so -called "blacklining ") appearing in the execution copy (ie., 21 deleted text is overstricken and newly - inserted text is underscored or in boldface); such 'blacklining" shall not be 22 accorded any significance or taken into account in any way; this Lease shall be construed for all purposes as if all 23 overstricken text were deleted and never included in this Lease and all bold or underscored text were not bold or 24 underscored. 25 26 (F) Quiet Enfovment Landlord covenants that, upon Tenant's payment of the Rent required 27 hereunder and its performance of all of the terms and conditions of the Lease, Tenant's peaceful and quiet 28 enjoyment of the Leased Premises shall not be disturbed by Landlord or anyone properly claiming by, through or 29 under Landlord. Notwithstanding the foregoing, this provision is subject to all mortgages, encumbrances, 30 easements and underlying leases to which this Lease may be or become subordinate. 31 32 25. Unavoidable Delays. Where either party hereto is required to do any act but is untimely in 33 completing the act, the time attributable directly to delays caused by an Act of God, hurricane, tornado, rain, 34 snow, cold or other weather, war, civil commotion, fire or other casualty, labor difficulties, or shortages of labor, 35 materials or equipment, government regulations or other causes beyond such party's reasonable control shall not 36 be counted in determining the time during which such act is to be completed. In any case where work is to be 37 paid for out of insurance proceeds or condemnation awards, due allowance shall be made for delays in the 38 collection of such proceeds and awards. The provisions of this Article shall not be applicable at all to excuse or 39 permit delay of the time for Tenant to pay Rent or other money or to obtain and maintain insurance policies. If 40 Landlord is unable to deliver the Leased Premises by the end of one (1) year after Landlord's execution of this 41 Lease, then either party may terminate this Lease by giving thirty (30) days written notice to the other at any time 42 prior to tender. 43 44 26. Sole Broker. Tenant represents that no broker, finder, or other person entitled to compensation 45 (other than the Broker identified in Article 1) was involved in this Lease, and that no conversations or prior 46 negotiations were had with any broker, finder or other possible claimant other than the Broker concerning the 47 renting of the Leased Premises. Tenant shall defend, indemnify and hold Landlord harmless against any claims 48 for compensation (including legal fees incurred by Landlord) arising out of any conversations or negotiations had 49 by Tenant with anyone other than the Broker. 50 51 27. Estoppel Certificates From time to time, within ten (10) days following written notice, Tenant shall 52 deliver to Landlord a signed and acknowledged written statement certifying: the date of this Lease and that this 53 Lease is in full force and effect and unmodified except as stated; the monthly Base Rent payable during the Lease 54 Term; and the n.._,.,....age Rent Ratei the date to which the Rent and other payments have been paid; whether 55 Landlord is in default, or if there are any offsets, defenses, or counterclaims claimed by Tenant, and if a default, 56 offset, defense, or counterclaim is claimed, specifying the specific nature and default; and stating any additional 57 matters requested by Landlord or a mortgagee. 58 59 28. Shopping Center Changes. Neither Exhibit A nor. this Lease is a warranty by Landlord that the 60 Shopping Center will remain as shown. Landlord may relocate, increase, reduce or otherwise change the number, 61 dimensions, or locations of the parking areas, drive's; exits, entrances, walks and other Common Areas or 62 buildings. If Landlord desires to modernize the facade of the Shopping Center, Tenant shall, upon request of 63 Landlord, install a new exterior sign and improve its storefront, following the design of Landlord's architect. 64 Landlord reserves the. right to use .portions of the Common Area.for construction- related activities and to erect 65 temporary scaffolding in front of the Leased Premises. Tenant waives any. claim for rent abatement, loss of 66 business or damages arising out of any reasonable and temporary inconvenience allegedly experienced by Tenant 67 during the course of any alteration, improvement or modernization, or during any repair activities in which 68 Landlord is engaged. 69 70 29. Notices. All notices intended to impose liability on the other party or exercise a right ( "Notice ") shall 71 be in writing and sent by certified or registered mail, return receipt requested, or delivered by a nationally 72 recognized overnight courier (such as Federal Express or UPS) and in order to be effective a copy of any notice of 73 Landlord's default must be sent by Tenant to the holders of any mortgages, ground leases or security interests as 74 per Article 16(C). Notices shall be sent to the address set forth in Article 1 or to such other address as may be 75 designated by notice. Notices shall be effective the day after the notice was sent, or if by courier delivery, the day 76 delivered. The purported giving of notice or exercise by Tenant of any right, option or privilege by any means 77 other than written notice given in strict compliance with this Article shall be null, void and of no force or effect, 78 even if any such other means of communication succeeds in conveying actual notice. If courier delivery is refused 79 or not able to be made, the day delivery was first attempted shall be deemed the delivery date. 80 15 C:\sea \client \TEMP \Carlisle Coffee Company 1 -4D7G9 Proj 1D SPAC1075.doc KE 5/10/2004 1 (END OF RIDER A) 2 3 SEE RIDER B ATTACHED HERETO AND HEREBY MADE A PART OF THIS LEASE. 16 C:\sea \client \TEMP \Carlisle Coffee Company 1 -4DJG9 Proj ID SPAC1075.doc KE 5/10/2004 RIDER B 30. Notwithstanding anything provided herein, if there is any discrepancy between Rider "A" and Rider "B ", Rider "B" shall prevail. 31. Sion Criteria - Reference to Article 10(D) (A) Tenant shall be tequired.to design and install at its sole cost and expense an illuminated individual channel letter sign on the exterior face of the Tenant's storefront. Tenant must obtain Landlord's written approval of its sign design drawings prior to the fabrication and installation of Tenant's sign. The drawings must include the dimensions, color, style and types of materials to be used. The sign shall be placed in the designated area in such a manner that it does not extend above the parapet or facade and does not exceed 2/3 of Tenant's storefront. The plans and permits for, and the installation of, Tenant's sign shall all be at Tenant's sole cost and expense. The sign shall be governed by all applicable provisions of this Lease, including, but not limited to, Tenant's duty to repair (Article 10) and insure (Article 11) the sign. The sign shall be subject to all governmental authorities' codes and restrictions. (B) Upon the expiration or sooner termination of this Lease, Tenant shall remove its sign and restore the sign band /fascia to its original condition. 32. Utility Deregulation. (A) Landlord Controls Selection Landlord and Tenant acknowledge that new utility deregulation may allow Landlord to change electric service providers in the future. If such deregulation goes into effect, Landlord shall have the right at any time and from time to time during the Lease Term to either (i) contract for service from a different company or companies providing electricity service (each such company shall hereinafter be referred to as an "Alternate Service Provider") or (ii) continue to contract for service from the present electric utility company (the "Electric Service Provider"). In the event that the entire Shopping Center is required to be serviced by the Alternate Service Provider, Tenant .agrees to contract for service from the Alternate Service Provider. (B) Tenant Shall Give Landlord Access Tenant shall cooperate with Landlord, the Electric Service Provider, and any Alternate Service Provider, at all times as reasonably necessary, and allow the foregoing to have reasonable access to any and all electric lines, feeders, risers, wiring, and any other machinery within the Leased Premises. (C) Landlord Not Responsible for Interruption of Service Landlord shall not be liable or responsible for any loss, damage, or expense that Tenant may sustain or incur by reason of any change, failure, interference, disruption, or defect in the supply or character of the electric energy furnished to the Leased Premises, or if the quantity or character of the electric energy supplied by the Electric Service Provider or any Alternate Service Provider is no longer available or suitable for Tenant's requirements, and no such change, failure, defect, unavailability, or unsuitability shall constitute an actual or constructive eviction, in whole or in part, or entitle Tenant to any abatement or diminution of rent, or relieve Tenant from any of its obligations under the Lease. 33. PLANS AND SPECIFICATIONS. (A) In the event Tenant desires to perform any work, or make any alterations or modifications in and to the Leased Premises (other than installation of shelves, painting and carpeting, and other similar interior non - structural minor cosmetic changes), or in the event Tenant desires to perform any work in the Leased Premises which requires the submittal of plans to the municipality and /or requires municipal permits and approvals, Tenant shall submit to Landlord, for Landlord's written approval the following items (hereinafter collectively referred to as `'Required Items''): 1. Complete detailed drawings and specifications in sufficient detail for Tenant to obtain all necessary building permits (hereinafter collectively referred to as "Plans ") for all the work to be done by Tenant to the Leased Premises. Each of Tenant's Plans submissions shall include two sets of full -size construction drawings and specifications, as well as one set of computerized construction drawings saved on 3.5" diskettes in .DWG or. DXF file format. 17 C:\sea \client \TEMP \Carlisle Coffee Company 1- 4DJG9. Proj ID SPAC1075.doc KE 5/10/2004 2. A contractor's "Payment and Performance Bond" in favor of Landlord as • obligee, in form approved by Landlord, issued by a surety company satisfactory to Landlord, guaranteeing completion of Tenant's work in accordance with the Plans free of liens and security agreements. 3. A comprehensive general liability insurance policy from Tenant's contractor's insurer (with a rating of not less than A -8) naming Landlord as additional insured for at least $3,000,000 combined single limit for bodily injury and property damage and contractor's Workers' Compensation and Occupational Disease insurance with statutory limits and employer's liability with a limit of at least $1,000,000. 4. The general contractor's written indemnity agreement in the form attached hereto as Exhibit "B -1" that the contractor shall indemnify, defend, save and hold harmless Landlord, its mortgagee, agents, employees and .assigns,. from all liabilities, claims, losses, liens, damages and suits of whatsoever nature for personal injury, death or property damage alleged to arise out of the work performed under the contract, whether by contractor or by any subcontractor, and whether asserted against Landlord or contractor. (B) Landlord shall inform Tenant of any objections to the Required Items within thirty (30) days after receipt of all such items. If - Tenant fails to deliver any of the Required Items timely, then Landlord shall have the right to terminate this Lease and retain the Tenant's entire security deposit as liquidated damages. Furthermore, Landlord shall have no obligation to review Tenant's Plans unless and until Landlord is in receipt of all Required Items. Tenant, within fifteen (15) days of receiving Landlord's objections to the Required Items, shall deliver to Landlord corrected Required Items, which Landlord shall accept or reject within the next fifteen (15) days. (C) Tenant must obtain Landlord's written approval of all Required Items prior to commencing any of its work at the Leased Premises. Landlord's approval of Tenant's Plans shall not constitute an affirmation by Landlord that they conform to law or impose any liability on Landlord. Upon Landlord's approval of the Required Items Tenant shall immediately apply for all permits necessary for its work. After the permits are issued and Landlord has completed the work, if any, that it has specifically agreed in this Lease to do, Tenant shall promptly commence and complete Tenant's work in conformity with the Plans, building department requirements and all relevant laws and regulations. (D) Tenant shall comply with all legal requirements during its work and, when completed, Tenant's work must comply with all laws, ordinances, regulations or orders of public authority, and with the requirements of the appropriate Fire Insurance Rating Organization and Landlord's insurance company. Prior to opening for business, Tenant shall obtain and deliver to Landlord: (a) Tenant's affidavit that all work, labor and materials have been paid for, (b) final lien waivers, as well as paid invoices or statements, from all contractors and subcontractors who performed work at the Leased Premises and all materialmen and suppliers who provided materials and /or equipment used in connection With Tenant's work at'the Leased Premises, and (c) a copy of the certificate 'of occupancy (or its local equivalent) for the Leased Premises. If a temporary Certificate of Occupancy is issued, Tenant shall deliver a copy of that document to Landlord and then, upon issuance of a permanent Certificate of Occupancy, immediately forward a copy of it to Landlord. (E) If Landlord or its representative inspects the Leased Premises and determines that Tenant's work is not being done in accordance with the approved Plans, Tenant shall correct any deficiencies or omissions immediately. (F) Tenant shall not permit any mechanic's or other lien to be filed either against the Leased Premises or the Shopping Center or Tenant's leasehold interest by reason of work, labor,. services or materials supplied. If any lien is fled, Tenant shall, within ten (10) days after notice of the filing, cause it to be discharged of record, failing which Landlord, in addition to any other right or remedy, may (but shall not be obligated to) discharge such lien by deposit, bonding proceedings. or by payment of the claimed amount for Tenant's account. Any amounts so paid, together with interest at the Default Interest Rate from the date of payment, shall be paid by Tenant to Landlord on demand as additional Rent. Nothing herein shall be construed as the consent or request of Landlord to 18 C:\sea \client \TEMP \Carlisle Coffee Company 1 -4DJG9 Proj ID SPAC1075.doc KE 5/10/2004 any contractor, subcontractor, laborer or materialman to perform work or furnish materials. Furthermore,. nothing herein shall give Tenant the authority to contract for or permit the rendering of any service or furnishing of any material that could give rise to the filing of any lien. (G) Tenant shall require its contractor to furnish to both Tenant and Landlord on completion of the work a guaranty, for a period of one (1) year from final completion of all work, that all work and materials will be free from all defects and that all apparatus (e.g., air- conditioning equipment) will develop capacities and characteristics specified in the approved Plans upon use, and that whenever within one (1) year of the final acceptance of the work, contractor is notified in writing by either Landlord or Tenant that any equipment, material or workmanship is defective or in some way does not meet specifications, contractor shall immediately replace, repair or otherwise correct the defect or deficiency without cost to Landlord. Additionally, the following items shall be guaranteed for periods in excess of the one (1) year: Motor Compressor Units - five (5) years; Exterior Walls - two (2).years (guaranteed against air and moisture Leakage); Roofing - two (2) years. (H) In the event Tenant's work involves the construction of a- demising wall, Tenant shall physically indicate the proposed location of the demising wall on the floor of the Leased Premises, notify Landlord's architect that the location has been marked and that construction of the wall is about to begin, and give Landlord's architect a reasonable opportunity to come to the Leased Premises and inspect the proposed placement of the wall. (1) For any Tenant work that involves penetration of the roof surface, Tenant shall employ Landlord's roofing contractor, thereby ensuring that the roofing bond and /or warranty will remain in full force and effect. The maintenance of Tenant's roof work will be the sole responsibility of Tenant and shall include the repair of adjoining areas that might have been affected due to water penetration through Tenant's roof work. (J) In the event Tenant must obtain a zoning variance, waiver or other change in order to use the Leased Premises for the purposes described in Article 1(M), or for any work Tenant desires to perform at the Leased Premises, Tenant shall first obtain Landlord's written approval, not be unreasonably withheld or delayed, prior to seeking such a change. If Landlord's consent is given, Landlord agrees to cooperate with Tenant in such application and Tenant agrees to: (1) keep Landlord advised of all developments as they occur, (ii) provide Landlord with an opportunity to review all documents before they are filed, and (iii) give Landlord a reasonable amount of notice before any hearings are held so that Landlord's representative shall have an opportunity to attend. Tenant shall not be permitted to enter into any agreements that affect the use, access, or condition of the Shopping Center without first obtaining Landlord's written consent, and any attempt to do so shall constitute a default under the Lease. 34. Option to Extend Lease. (A) Provided Tenant is not in default under any provision of the Lease and has faithfutly.performed the terms or conditions of the Lease and Tenant is in actual physical possession of all of the Leased Premises (and operating and open for business as contemplated by this Lease, in all of the Leased Premises), Tenant shall have the right to extend the term of this Lease as set forth in Article 1 (the "Original Term ") for one additional period of tEee {five 5 _LJ years (the "Additional Term ") commencing upon the expiration of the Original Term, provided that Tenant shall give Landlord written notice of such election at least one (1) year prior to the expiration of the Original Term, TIME IS OF THE ESSENCE WITH RESPECT TO THIS ARTICLE. Such notice of election to extend the term of the Lease shall be irrevocable. Except as expressly otherwise provided herein, the Additional Term shall be upon all of the terms and conditions of the Lease except that any articles which were intended to be one time, initial provisions or concessions (such as free Rent, Landlord Work, or a Tenant improvement allowance) shall be deemed to have been satisfied and shall not apply to the Additional Term. Also, there is no option to further extend the Term of the Lease beyond the expiration date of the Additional Term. (B) 02tion Base Rent. In the event Tenant exercises its option to extend the Term of the Lease as provided above, the annual Base Rent during each. Lease Year of the Additional Term shall be as set forth in Article 1(H)(1). 19 C:\sea \client \TEMP \Carlisle Coffee Company 1 -4DJG9 Proj ID SPAC1075.doc KE 5/10/2004 35. (A) POWER TO CONFESS JUDGMENT TENANT HEREBY AUTHORIZES AND EMPOWERS THE PROTHONOTARY OR ANY ATTORNEY OF ANY COURT OF RECORD WITHIN THE COMMONWEALTH OF PENNSYLVANIA OR ELSEWHERE TO APPEAR FOR TENANT, AND, WITH OR WITHOUT DECLARATION FILED, CONFESS JUDGMENT AGAINST TENANT AND IN FAVOR OF LANDLORD, AS OF ANY TERM, FOR THE UNPAID OBLIGATIONS HEREUNDER, INCLUDING WITHOUT LIMITATION ALL ACCRUED AND UNPAID INTEREST CHARGES, RENTS OR OTHER CHARGES PAYABLE HEREUNDER, WHETHER BY ACCELERATION OR OTHERWISE, WITH COSTS OF SUIT AND A REASONABLE ATTORNEY'S COMMISSION OF FIFTEEN (15 %) PERCENT,. WITH RELEASE OF ALL ERRORS, WAIVING ALL LAWS EXEMPTING REAL OR PERSONAL PROPERTY FROM EXECUTION, TO THE EXTENT THAT SUCH LAWS MAY LAWFULLY BE WAIVED. NO SINGLE EXERCISE OF THE FOREGOING POWER TO CONFESS JUDGMENT SHALL BE DEEMED TO EXHAUST THE POWER, WHETHER OR NOT ANY SUCH EXERCISE SHALL BE HELD BY ANY COURT TO BE VALID, VOIDABLE, OR VOID, BUT THE POWER SHALL CONTINUE UNDIMINISHED AND IT MAY BE EXERCISED FROM TIME TG "TIME AND AS OFTEN AS LANDLORD SHALL ELECT, UNTIL SUCH TIME AS ALL OBLIGATIONS HEREUNDER SHALL HAVE BEEN SATISFIED. WHEN THIS LEASE SHALL HAVE EXPIRED OR BE TERMINATED BY REASON OF THE BREACH OF ANY PROVISION HEREOF, IT SHALL BE LAWFUL FOR ANY PROTHONOTARY OR ANY ATTORNEY OF ANY COURT OF RECORD WITHIN THE COMMONWEALTH OF PENNSYLVANIA TO APPEAR FOR TENANT TO FILE AN AGREEMENT FOR ENTERING IN ANY COURT OF COMPETENT JURISDICTION AN AMICABLE ACTION FOR CONFESSION OF JUDGMENT IN EJECTMENT AGAINST TENANT AND ALL PERSONS CLAIMING UNDER TENANT FOR THE RECOVERY BY LANDLORD OF POSSESSION OF THE LEASED PREMISES, FOR WHICH THIS LEASE OR A'TRUE AND' CORRECT COPY THEREOF SHALL BE A SUFFICIENT WARRANT, WHEREUPON, IF LANDLORD SO DESIRES, A WRIT OF POSSESSION MAY ISSUE FORTHWITH, WITHOUT ANY PRIOR WRIT OR PROCEEDINGS WHATSOEVER, AND PROVIDED THAT IF FOR ANY REASON AFTER SUCH ACTION SHALL HAVE BEEN COMMENCED THE SAME SHALL BE TERMINATED AND POSSESSION REMAIN IN OR BE RESTORED TO TENANT, LANDLORD SHALL HAVE THE RIGHT UPON ANY SUBSEQUENT DEFAULT OR DEFAULTS, OR UPON THE TERMINATION OR EXPIRATION OF THIS LEASE AS HEREINBEFORE SET FORTH, TO BRING ONE OR MORE AMICABLE ACTION OR ACTIONS AS HEREINBEFORE SET FORTH TO RECOVER POSSESSION BY CONFESSION OF JUDGMENT AS AFORESAID. NO ' SINGLE EXERCISE OF THE FOREGOING POWER TO CONFESS JUDGMENT SHALL BE DEEMED TO EXHAUST THAT POWER, WHETHER OR NOT ANY SUCH EXERCISE.SHALL BE HELD BY ANY COURT TO BE VALID, VOIDABLE OR VOID, BUT THE POWER SHALL CONTINUE UNDIMINISHED AND IT MAY BE EXERCISED) FROM TIME TO TIME AND AS OFTEN AS LANDLORD SHALL ELECT. BY SIGNING THIS INSTRUMENT, TENANT HEREBY ACKNOWLEDGES THAT TENANT HAS READ THIS LEASE (INCLUDING WITHOUT LIMITATION THE CONFESSIONS SET FORTH HEREIN), HAS HAD THE OPPORTUNITY TO HAVE THE SAME REVIEWED BY LEGAL COUNSEL, UNDERSTANDS THE SAME, AND AGREES TO THE PROVISIONS CONTAINED HEREIN, INCLUDING WITHOUT LIMITATION THE CONFESSION OF JUDGMENT PROVISIONS AND UNDERSTANDS THAT A CONFESSION OF JUDGMENT CONSTITUTES A WAIVER OF RIGHTS TENANT OTHERWISE WOULD HAVE TO PRIOR NOTICE AND A HEARING BEFORE A JUDGMENT IS ENTERED AGAINST TENANT AND WHICH MAY RESULT IN A COURT JUDGMENT AGAINST TENANT WITHOUT PRIOR NOTICE OR HEARING AND 20 C:\sea \client\TEhg \Carlisle Coffee Company 14DJG9 Proj M SPAC1075.doc KE 5/10/2004 THAT THE OBLIGATIONS MAY BE COLLECTED FROM TENANT REGARDLESS OF ANY CLAIM TENANT MAY HAVE AGAINST LANDLORD OR OTHERWISE. Initial Here Tenant '(B) POWER TO EXECUTE ON A JUDGMENT WITHOUT HEARING TENANT HEREBY AUTHORIZES AND EMPOWERS THE PROTHONOTARY OR ANY ATTORNEY OF ANY COURT OF RECORD OR THE SHERIFF (OR THE LAWFUL DESIGNEE OF THE SHERIFF) WITHIN ANY COUNTY OF THE COMMONWEALTH OF PENNSYLVANIA OR ELSEWHERE, TO TAKE ALL ACTION ALLOWED BY OR PROVIDED FOR IN THE PENNSYLVANIA RULES OF CIVIL PROCEDURE OR OTHER APPLICABLE RULES OF CIVIL PROCEDURE TO EXECUTE ON ANY JUDGMENT ENTERED AGAINST TENANT PURSUANT TO ONE OR BOTH CONFESSIONS OF JUDGMENT SET FORTH ABOVE WITHOUT PRIOR NOTICE OR HEARING OF ANY NATURE WHATSOEVER, WAIVING ALL LAWS' EXEMPTING REAL OR PERSONAL PROPERTY FROM EXECUTION TO THE EXTENT THAT SUCH LAWS MAY LAWFULLY BE WAIVED. NO SINGLE EXERCISE OF THE FOREGOING POWER TO EXECUTE ON JUDGMENTS WITHOUT A HEARING SHALL BE DEEMED TO EXHAUST THE POWER, WHETHER OR NOT ANY SUCH EXERCISE SHALL BE HELD BY ANY COURT TO BE VALID, VOIDABLE OR VOID, BUT THE POWER SHALL CONTINUE UNDIMINISHED AND IT MAY BE EXERCISED FROM TIME TO TIME AS OFTEN AS LANDLORD MAY ELECT. 36. Waiver of Statutory Notice to Quit. In addition to all other waivers provided in this Lease, Tenant hereby waives any and all benefits provided to tenants, to the fullest extent provided by law, conferred on tenants pursuant to the Pennsylvania Landlord and Tenant Act of 1951 (68 P.S. §250.501) as the same may be amended or supplemented from time to time including, without limitation, the statutory right to receive notices to quit in the case of default by Tenant under this Lease. See Article 15 of the Lease. 37. HVAC Notwithstanding anything contained in Articles 7 and 10, if: i) the HVAC system fails to operate during the ten (10) days following the date Landlord tenders the Leased Premises to Tenant; ii) the failure is not due to an act or omission of Tenant or its agents, employees or contractors; and iii) Landlord receives written notice from Tenant within three days of the failure, Landlord shall restore the system to operating condition. After the ten (10) day period, Tenant shall have full responsibility with respect to the HVAC system. END OF RIDER B 21 C:\sea \client \TEMP \Carlisle Coffee Company 1 -4DJG9 Proj ID SPAC1075.doc KE 5/1012004 EXHIBIT "1" Authorization Agreement for Direct Debit CHASE AUTHORIZATION AGREEMENT FOR DIRECT DEBIT COMPANY NAME COMPANY ID NUMBER 7 . I (We) authorize above named company to initiate debit entries to my (our) account with the depository named below. If the company erroneously debited funds from my (our) account I (we) authorize the company to initiate the necessary credit entries not to exceed the total of the original amount debited for the entry in question. DEPOSITORY NAME (FINANCIAL BANK SAVINGS & LOAN CITY STATE ZIP INSTITUTION) M °t 1 ¢xi ? C6Gli3h PA 1 7 0 13 TRANSIT /ABA NUMBER CHECKING SAVINGS ACCOUNT NUMBER ACCOUNT ACCOUNT X31 �d a��� ✓ q$ This authorization will remain in effect until the company has received written notification from me (or either of us) at the address listed below /above that is to be terminated in such time and manner for the company to act on it. I (or either of us) have the right to stop payment of a debit entry by notification to my Depository 3 business days before my account is charged. After account has been charged, I have the right to have the amount of an erroneous debit immediately credited to my account by depository, provided I (we) send written notice of such debit entry in error to depository within fifteen days following issuance of the account statement or 60 days after posting whichever occurs first. NAME(S) nn G�aC�C. 7tn���S ADDRESS CITY STATE ZIP TELEPHONE CODE i3 P�{ l v �� - d`ld SIGNATURE DATE 295/313 9 (1, 'M a r acs ETC � * f X / \� ,�. ' .i Date GNED a l h a T i Aj, N , $ a °t ti I - c-` fiA t:b3131D 29551: 9836719907 U: \sea\cnentVI hMY\Uar11s1e Come Company 1 -4DJG9 Proj ID SPACI075.doc KE 5/10/2004 EXHIBIT A plan is intended to be an approximate depiction of the Shopping Center. No This site representation or warranty is made with respect to the aetua4 location, number or configquration of Buddi Curb Cuts, Abutting Thoroughfares,.Parlang Areas, Traffic Patterns, or of tfie Tenants intended to be within the Shopping Center. The Landlord specifically reserves the right to change the content and configuration of the 5hopping Center from time to time and at any time the landlord desires in its sole and absolute discretion, or as is required.to conform to Local Governing Agencies. The leased premises shall be the area identified below. r I r I r p N N a � co I V I( to W � A N W ' A a N r W to 0 I tD 01 3 <' CD ° m CL Stonehedge Drive West a m . 1 EXHIBIT A PD: 4/9104 (n�Cimc ration Bite # 1075 Corporation 23 CAsea \client \TEMP \Carlisle Coffee Company 1 -4DJG9 Proj ID SPAC1075.doc ICE 5/10/2004 EXHIBIT "13-1" INDEMNITY AGREEMENT This INDEMNITY AGREEMENT pertains to work to be performed at the Stonehedge Square and located in Carlisle, PA, herein referred to as "Shopping Center" ( Kimco Project ID No. SPAC1075) By (herein referred to as "Contractor "), having an address at: and is part of the Contract with (herein referred to as "Tenant"), having an address at which Contract is dated , for work to be done at the Shopping Center from approximately through Contractor acknowledges that Tenant is contractually obligated to obtain this Agreement under a lease for its store at the Shopping Center. Contractor has entered into this Agreement in order to induce Tenant to retain Contractor to perform certain work at its store. Contractor hereby agrees to INDEMNIFY, SAVE & HOLD HARMLESS Stonehedge Center LLC, and Kimco Realty Corporation, hereinafter collectively referred to as Landlord, its respective agents and employees, assigns, and architects of and from all liabilities, claims, losses, damages, injury, causes of actions and.suits of whatever nature for personal injury, including death, and for property damage, arising out of or alleged to arise out of, or any conditions of, the work performed under this Contract, whether by Contractor or by any sub - contractor, and whether any claim, cause of action, or suit is asserted against Landlord or its agents and employees, assigns, and architects, or Contractor, severally, jointly, or jointly and severally. Contractor hereby agrees to INDEMNIFY, SAVE & HOLD HARMLESS Landlord, its agents and employees, assigns, and architects of and from any and all costs of any nature, including without limitation investigation, adjustment, attorney's fees, expert's fees, court costs, administrative costs, and other items of expense arising out of any claim, cause of action or suit of the kind and nature herein set forth. Neither Contractor nor any sub - contractor shall file any mechanic's, materialmen's, or other liens either against the Leased Premises or the Shopping Center from any work, labor, services or materials supplied or performed by Contractor or by any sub - contractor. Contractor hereby agrees to INDEMNIFY, SAVE & HOLD HARMLESS Landlord, its agents and employees, assigns, and architects of and from any and all costs of any nature, including without limitation investigation, adjustment, attorney's fees, expert's fees, court costs, administrative costs, and other items of expense arising out of any mechanic's, materialmen's, or other liens filed against the either against the Leased Premises or the Shopping Center by Contractor or by any sub - contractor. Contractor hereby agrees that it will obtain Comprehensive General Liability insurance including Blanket Contractual Liability with minimum amount of $3,000,000.00 Combined Single Limit for bodily injury and property damage. Additionally, Contractor must also obtain Workers Compensation and Occupational Disease insurance with statutory limits and form as required by the State in which the work is to be performed, and Employer's Liability with a limit of not less than $1,000,000.00 for all damage. Certificates for all insurance will be submitted to Landlord before commencement of any work. The Certificates must indicate that the "HOLD HARMLESS AGREEMENT" 24 CAsea \client \TEMP \Carlisle Coffee Company Proj ID SPAC1075.doc KE 5/10/2004 contractual indemnity as set forth in this agreement is insured. Landlord must be named as an additional insured and the policy must provide that no less than 15 days advance written notice will be given to both the party to whom such Certificates are issued and the additional insured in the event of cancellation of the policies or a reduction in the limits of liabilities set forth above. At Landlord's request, Contractor will immediately furnish Landlord with a true and complete copy of any insurance policy Landlord wants to renew. No invoices for payments will be honored unless such Certificates of Insurance (or the policy, if requested) had been filed timely with Landlord at 3333 New Hyde Park Road, Suite 100, New Hyde Park, NY 11042 -0020. Contractor acknowledges that Landlord did not retain Contractor to perform any work at the Shopping Center and agrees that Contractor will not look to Landlord for any compensation whatsoever for any work it performs at the Shopping Center. IN WITNESS HEREOF, this Contractor has executed this Agreement this day of 200_ CONTRACTOR: By: Name: Title: 25 C:\sea \client \TEMP \Carlisle Coffee Company 1 -4DJG9 Proj M SPAC1075.doe KE 5/10/2004 EXN 1g1 � ..s., goo Assignment and Assumption of Lease and Security Deposit ASSIGNMENT AND ASSUMPTION AGREEMENT ( " Assignment Agreement made this 31st day of December , 200 7 , between CARLISLE COFFEE COMPANY, INC. (the " Assignor "), a corporation, and BRADLEY L. ELINE and SUSAN P. ELINE, jointly and severally (the "Assignee "), adult individuals with an address of 225 Penn Street, Hanover, Pennsylvania 173 31. WITNESSETH: WHEREAS, Assignor is the tenant under that certain lease dated April 8, 2004 by and between Stonehedge Center LLC, as landlord, predecessor in interest to Cedar - Stonehedge, LLC (the "Landlord "), and Assignor, as tenant (said lease agreement is hereinafter referred to as the " Lease ") for certain premises located at Stonehedge Square, 950 Walnut Bottom Road, Carlisle, Pennsylvania 17013 (the "Shopping Center ") all as more particularly described in the Lease (the " Premises "); and WHEREAS, pursuant to the Lease, Landlord is presently holding a security deposit in the amount of $5,646.68 (" Securit y y posit' ); and WHEREAS, pursuant to a purchase and sale agreement ( " Agreement "), dated 12/31/07 _, between Assignor, as seller, and Assignee, as purchaser, Assignor agreed inter alia to assign the Lease and Security Deposit to Assignee on the closing date ( " Closing Date set forth in the Agreement, and Assignee agreed to assume the obligations of Assignor thereafter under the Lease, according to the terms hereinafter set forth; NOW, THEREFORE, it is agreed: 1. Assignor hereby assigns, transfers, releases and sets over unto Assignee without recourse, except as expressly set forth in the Agreement, the estate of Assignor as tenant created by the Lease, together with all of Assignor's right, title and interest in, to and under the Lease and the Security Deposit; and TO HAVEAND TO HOLD the same unto Assignee, its successors and assigns, from and after the date hereof and for all the remainder of the respective terms of the Lease and any renewals or extensions thereof, subject to the rents, covenants, terms and conditions contained therein. The foregoing assignments are expressly made without representation or warranty (either expressed or implied) of any nature or kind, or recourse against Assignor in any event, unless expressly set forth herein or in the Agreement. 2. Assignee hereby accepts the assignment from Assignor of the Lease and the Security Deposit and hereby assumes the obligation to observe and perform all of the terms, covenants and conditions thereof to be observed or performed by Assignor as tenant thereunder from and after the date hereof, with the same force and effect as if Assignee had executed the Lease originally as an original signatory. Assignee hereby acknowledges receipt of a copy of the Lease and 1 S: \Legal\ Leases \Pennsylvania\stonehedge \Carlisle Coffee\LEASEassignment.doc agrees to seek recovery of the Security Deposit solely from Landlord in accordance with the terms of the Lease and waives any claims against Assignor therefor. Assignor represents and warrants to Assignee that the amount of the Security Deposit is $5,646.68. 3. Assignee shall indemnify, hold harmless and defend Assignor and Cedar - Stonehedge, LLC from and against any and all indemnified liabilities (as may be defined in the Agreement) asserted against, imposed upon or incurred by Assignor or Cedar - Stonehedge, LLC, directly or indirectly, by reason of or arising from claims by the Landlord under the Lease with respect to events occurring or matters arising after the Closing Date (as such term is defined in the Agreement) or otherwise due to Assignee's breach of any term of this Assignment Agreement. 4. This Assignment Agreement may not be amended, modified or terminated except by an instrument in writing executed by the parties hereto. 5. This Assignment Agreement shall be binding upon and shall inure to the benefit of the parties hereto and their respective heirs, successors and assigns. IN WITNESS WHEREOF, the parties hereto have executed this agreement as of the day and year first above written. Assignor CARLISLE COFFEE COMPANY, INC. By: -1� hart- 4yyjA/U-- Name: 6 ra. C� n f.r-�> Title: Assignee BRADLEY L. ELINE 9 J U SAN P. ELINE 2 S: \Legal \Leases \Pennsylvania \stonehedge \Carlisle Coffee\LEASEassigiunent.doc CONSENT AND RATIFICATION In conjunction with the Assignment of Lease from Carlisle Coffee Company, Inc. to Bradley L. Eline and Susan P. Eline, jointly and severally, the undersigned, as Guarantors of the Lease under the terms and conditions set forth in that certain Guaranty dated April 8, 2004, hereby consent to the foregoing assignment of the Lease on the terms and conditions hereinabove set forth and agree that their guarantee of payment and performance by Tenant under the Lease shall remain in full force and effect in accordance with its terms, and shall encompass all of Tenant's obligations under the Lease. In addition, Guarantors acknowledge that Cedar - Stonehedge, LLC has assumed ownership of the Shopping Center and the Lease and as such, the undersigned ratify and confirm the Guaranty with respect to Cedar - Stonehedge, LLC, as Landlord. Dated: h -G�,M y , 200 By: m t—L GRACE ANDERS PATRICK S. ANDERS 3 S: \Legal\ Leases \Penn.sylvania \stonehedge \Carlisle Coffee \LEASEassignment.doc EX NIB� •• � „ Assignment and Assumption of Lease and Security .Deposit ASSIGNMENT AND ASSUMPTION AGREEMENT ( " Assignment Agreement made this day of r C) t�, 2009, between BRADLEY L. ELINE and SUSAN P. ELINE d/b /a Carlisle Coffee Coinpany (the " Assignor "), jointly and. severally adult individuals with an address of 639 Frederick Street, Hanover, PA.17331, and JACK R. GREENAWALT, JR. and TINA GREENAWALT d /b /a Carlisle Coffee and Smoothie Cafe (.the "Assignee "), jointly and severally adult individuals with , an address of 2570 Waterford, Camp Hill, PA 1701.1. WITNESSETH: WHEREAS, Assignor is the tenant under that certain lease dated as ofApril 8, 2004 by and between Stonehedge Center LLC, as landlord, predecessor in interest to Cedar= Stonehedge, LP (the "Landlord"), and Carlisle Coffee Company, Inc., as tenant, predecessor in interest to Bradley L. Eline and Susan P. Eline (the "Tenant"), as.modified by that certain Assignment and.Assumption Agreement from Carlisle Coffee Company, .Inc. to Bradley L. Eline and Susan P. Eline dated December.31, 2007 (the "Lease ") for those certain premises described therein (the "Premises") in the shopping center known as Stonehedge Square, 950 Walnut Bottom Road, Carlisle, PA 17013 (the "Shopping Center "); and WHEREAS, pursuant to the Lease, Landlord is presently holding a security deposit in the amount of $5,646.68 ( " Security Deposit' and WHEREAS, pursuant to a purchase and sale agreement ( " Agreement '), dated between Assignor, as seller, and Assignee, as purchaser, Assignor agreed inter alia to assign the Lease and Security Deposit to Assignee on the closing date ( " Closing Date. ") set forth in. the Agreement, and Assignee agreed to assume the obligations of Assignor thereafter under the Lease, according to the terms hereinafter set forth; NOW, THEREr it is agreed: L Assignor hereby assigns, transfers, releases and sets over unto Assignee Without recourse, except as expressly set forth in .the .Agreement, the estate of Assignor as tenant created by the Lease, together with all ofAssignor's right, title and interest in, to and under the Lease and the Security Deposit; and TO 144 VEAND TO HOLD the same untoAssignee, its successors and assigns, from and after the date hereof and for all the remainder of the respective terms of the Lease and any renewals or extensions thereof, subject to the rents, covenants, terms and conditions contained therein. The foregoing assignments are expressly made without representation or warranty (either expressed or implied) of any Nature or kind, or recourse against Assignor in any event, unless expressly set forth herein or in the Agreement. 2. Assignee hereby accepts the assignment from Assignor of the Lease and the Security. Deposit and hereby assumes the .obligation to observe and perform all of the terms, C:Tmuments and Segings\FCC User1[ ocal Settingffemporary Internet FileslContenL1E51W5V6ZY7SlLEASEass .ignment.doc covenants and conditions thereof to be observed or performed by Assignor as tenant thereunder from and after the date hereof, with, the same force and effect as if Assignee had executed the Lease originally as an original signatory. Assignee hereby acknowledges receipt of a copy ofthe Lease and agrees to seek recovery of the Security Deposit solely from Landlord in accordance with the terms of the Lease and waives any claims against Assignor therefor. Assignor represents and warrants to .Assignee that the amount of the . Seecurity Deposit is $5,646.68.. 3. Assignee shall indemnify, hold harmless and defend Assignor and Landlord .from and against any and all indemnified liabilities (as may be defined in the Agreement) asserted against, imposed upon or. incurred. by Assignor or Landlord, directly or indirectly, by reason of or arising from claims by the Landlord under the Lease with respect to events occurring or matters arising after the Closing Date (as such term is defined in. the Agreement) or otherwise due to Assignee's breach of any term of this. Assignment. Agreement. 4. This Assignment Agreement may:not be amended, modified or terminated except by an instrument in writing executed by the parties hereto. 5. This Assignment Agreement shall be binding upon and shall inure to the benefit of the parties hereto and their respective heirs, successors and assigns. IN WITNESS WHEREOF, the parties hereto have executed this agreement as of the day and year first above written. Assignor BRADLEY L. ELINE " SUSAN P. ELINE Assignee JA E AWALT, JR. TINA GREENAWALT C:\ooeuments and SettingsTCC User \Local SettingsU mporary Intemet Files\ Content: lE5 \W5V6ZY7S\LEASEas &ignment.doe. `` �/� �B�T EXH LEASE MODIFICATION AGREEMENT LEASE MODIFICATION AGREEMENT (this " Agreement ") dated as of the �. day of 2009 between CEDAR- STONEHEDGE, LP, a Delaware limited liability company having an. office c/o Cedar Shopping Centers, Inc., 44 .South. Bayles Avenue, Suite 304 Port Washington New York 11050 (hereinafter referred to as " Landlord ') and JACK R. GREENAWALT, JR. and TINA GREENAWALT d/b /a Carlisle Coffee ,and Smoothie Cafe (the "Tenant"); jointly and severally adult individuals with an address of 2570 Waterford, Camp Hill, PA 1701 l (hereinafter referred to as " Tenant '). WITNESSETH: WHEREAS, Landlord's predecessor in interest, Stonehedge Center LLC, as landlord, and Tenant's predecessor in interest Carlisle Coffee Company, Inc., as tenant, entered into that certain lease agreement dated as of April 8. 2004 covering certain retail space as more particularly described in the. lease agreement (the "Premises'), in the shopping center known as Stonehedge Square 950 Walnut .Bottom Road, Carlisle, PA 17013 (the " Shopping Center "), which Tease agreement was thereafter modified by that certain: (i) Assignment and Assumption Agreement from Carlisle Coffee Company, Inc. to Bradley L. Eline and Susan P. Eline dated December 31, 2007;_ and (ii) Assignment and Assumption Agreement from Bradley L. Eline and Susan. P. Eline to Jack R. Greenawalt Jr. and Tina. Greenawalt dated .S ` — 6 9 ; (said lease agreement; as so modified and assigned; is hereinafter referred to as the " and WHEREAS, the Lease, as extended_, is currently scheduled to expire on October 31, 2009 (the " Current Expiration Date "); and WHEREAS, Tenant wishes to extend the term of the Lease, as modified by this Agreement, for the Premises,. for an. additional term of five (5) Lease Years (the " Extended Term to commence as of November 1, 2009 (the " Extended Term Commencement Date ") and to expire on October 31, 2014 (the " Extended Term Expiration Date "); and WHEREAS, subject to and in accordance with the terms, covenants and conditions of this Agreement,. Landlord has agreed to pennit Tenant to extend the term of the Lease for the period of the Extended Term; and WHEREAS, Tenant and. Landlord wish to modify the Lease as set forth below.. NOW, THEREFORE, in consideration of the mutual agreements herein contained and other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties hereby agree as follows: 1: Term C:\Documents and Settings\FCC User\Local Settings \Temporary Internet Fi les \Content.E5 \W5V6ZY7S\Renewal Agreement 00Ldoc (a) The term of the Lease shall be extended under the same terms, covenants and conditions contained in the Lease, except to the extent specifically modified by this Agreement, for the period of the Extended Term so that the term of the Lease shall expire on the Extended Term Expiration Date or on such earlier date upon which the term of the Lease shall expire, be canceled or terminated pursuant to any of the conditions or covenants of the Lease or pursuant to law. (b) Tenant shall have no further .right to extend the term of this Lease. except as may be expressly 'set forth herein. 2. Annual Base Rent:and Additional Rent (a) Prior to the Extended. Term. Commencement Date, Tenant shall pay all .Annual Base Rent, Additional Rent and other charges accruing under the Lease as originally provided for therein. (b) Effective as of the Extended Term Commencement Date, in addition to all Additional Rent and other charges accruing under the Lease, the Tenant .shall pay Annual Base Rent for the Premises, during the Extended Term, at the following: rates: Period Annual `Base Rent Monthly Minimum Rent 11/01/2009 — 10/31%2610 :$ 26;500.00 $ 2,20833 11/01/20M— 10/31/2011 $: 29,000.00 $ 2,4;16.67 11/01/.2011 - 10/31/2012 $ 32,500.00 $ 2,708.33 11/01/2012 — 10/31/2013 $ 35,000;00 $ 2,016:67 1.1/01/2.0 —10/31 /2014 $ 3.8,000.00 $ 3,166.67 3. Miscellaneous Lease Modifications: (i) Article 3(A)` .of the Lease ( "Base Rent ") is hereby modified by requiring that Tenant forward all payments of Annual Base Rent, Additional Rent, and all other charges made payable to "Cedar- Stonehedge, LP" and same shall be remitted to the following address in lieu of the address as set forth in the Lease: Cedar - Stonehedge, LP c/o Cedar Shopping Centers, Inc. 44 South Bayles Avenue Suite 304 Port Washington, New York 11050 (ii) Article 29 of the Lease ( "Notices ") is hereby modified by adding, the requirement that all -legal .notices to Landlord be sent to the following address in lieu of the. address as set forth in the Lease: Cedar- Stonehedge, LP 2 a a c/o Cedar Shopping Centers, Inc. 44 South Bayles Avenue Suite 304 Port Washington, New York 11050 Attention: Brenda J. Walker With an additional copy sent to: Cedar= Stonchedge, LP c/o Cedar Shopping Centers, Inc. 44 South Bayles Avenue Suite 304 Port Washington, New York 11050 Attention: Stuart Widowski, Esq. (iii) Article 10(D) of the Lease ( ". Signs; Painting ;..Displays) is hereby modified by adding the following. language: Upon the execution and delivery of this Agreement, Tenant shall have the right to install, at Tenant's 'sole cost and expense, signage on any existing pylon sign, subject to availability and. Landlord's (and any required governmental) prior approval of such sign, and provided Tenant agrees to pay its proportionate share of the repair, maintenance and xitilities for:such pylon and the entire cost of the manufacture and installation of Tenant's . sign panel. Tenant shall °utilize a. signage vendor previously approved by Landlord and shall minimize, in a commercially .:reasonable manner; gall work at. or upon the pylon so as to .limit obstruction of other signage,. Tenant shall not damage, mar, obstruct or otherwise :interfere with the visibility of .o. ther tenant's signage panels in the pylon. ` Tenant's signage vendor shall provide Landlord with proof of insurance in a form and in amounts reasonably acceptable to Landlord prior to commencing any work or installations at the Shopping Center. Tenant covenants and agrees to indemnify, save and hold `harmless Landlord from and against any and all claims or demands for damages or injury to..persons or property or for loss . of life including but not limited to any and all :claims .or demands of Tenant, its agents; employees; licensees, customers and assigns and including but not limited to any and all claims arising from or related to any violation by Tenant of any law, ordinance or statue; any action or other occurrence due directly or indirectly to the use of the pylon sign by Tenant, its agents, employees, licensee, invitees and, assigns; and/or Tenant's failure to comply with the terms and conditions. of this Agreement. (iv) Landlord acknowledges and agrees that Ten. ant may elect to operate under the trade name of "Carlisle Coffee.& Smoothie. Cafe" (the "'Trade Name ",). 3 During the Term of the Lease or any extensions or modifications thereto, upon prior written notice to Landlord, Tenant shall be permitted to amend or modify its Trade Name provided however that (i) Landlord receive Tenant's prior written notice of such modifications; and (ii) Tenant's modified or amended Trade Name shall not, in Landlord's sole reasonable .opinion and discretion, be confusingly similar to that of any other tenant or occupant then operating in the Shopping Center; (iii) Tenant shall have the legal right to use such name. 4. Successors and Assigns This Agreement shall be binding upon and inure to the benefit of the ,parties and their respective successors and permitted assigns. 5: Entire Agreement: The Lease, as modified by this Agreement,. represents the entire understanding between the parties with regard to the .matters addressed herein and may only be modified by written. agreement executed by all parties hereto. All prior understandings or representations. between the parties hereto, oral or written, with regard to the matters addressed herein, other than the Lease, are hereby .merged herein: Tenant acknowledges that. neither Landlord. nor any representative or agent of Landlord has made any representation or warranty, express or implied, as to the physical condition, state of repair, layout, footage or use of the Premises or any matter or thing. affecting, or relating to the Premises except : as specifically set forth in this Agreement. Tenant has not been induced by and has not relied upon. any statement, representation or agreement, whether express or implied, not specifically set forth in this Agreement.. Landlord shall not be liable or bound in any manner by any oral or written statement, broker's "set =up ". :representation, agreement or information pertaining to: the Premises or this Agreement; furnished by any real estate broker, agent, servant., employee or other person, unless specifically set forth, herein, and no rights are or shall be acquired by Tenant by implication or otherwise unless :expressly set forth herein. 6. Effectiveness This agreement shall not. be binding upon Landlord and Tenant until executed and delivered by both Landlord. and. Tenant: 7. Ratification. Except. as specifically :modified herein, 411 other terms, covenants and. conditions of the: Lease are. and shall remain in full force and effect and are .hereby ratified and confirmed. Tenant acknowledges that Landlord is not in breach of the Lease and Tenant has no claim for any failure of Landlord to perform its obligations under the Lease. In accordance with the foregoing,. Tenant is hereby estopped from raising any claim. pertaining to a default. by Landlord prior to the date hereof. 4 Notwithstanding the amendments to the Lease as contemplated in this Agreement and notwithstanding. anything to the contrary contained in this Agreement 'Tenant shall remain liable. for any unpaid Minimum Annual Rent, Additional Rent and other charges accruing under the Lease through and including the Extended Term Commencement Date. 8..., No Brokers/Indemnification.. Tenant covenants, represents and warrants that Tenant has had: no dealings or negotiations with any broker or' agent in connection with the consummation of this agreement other than Cedar Shopping Centers : Partnership, L.P. and Tenant covenants and agrees to defend hold. harmless and indemnify Landlord from and against: any and all cost, expense (including reasonable attorneys' fees) or liability for any compensation, commissions or charges. claimed by any:other broker or agent with respect to. this Agreement or the negotiation thereof. 9.. Miscellaneous (a) The captions in this Agreement are for convenience only and are not to be considered in construing this Agreement. (b) This Agreement shall be construed without regard to any presumption or other rule .requiring construction against the party causing this agreement to be drafted. (c) Terms used in this Agreement and not otherwise: defined herein shall have the respective meanings ascribed thereto in the Lease . (rBE BALANCE OF THIS PAGE IS INTENTIONALLY LEFT BLANK) 5 (d) If any provision of this Agreement or its application to any person or circumstances is invalid or unenforceable to any extent, the remainder of this agreement, or the applicability of such provision to other persons or circumstances; shall be. valid and enforceable to the fullest extent permitted by law and shall be deemed to be separate from such invalid or unenforceable provisions and shall continue in full force and effect. IN WITNESS WHEREOF, Landlord and Tenant Have duly executed this Agreement.as of the day and year above written. WITNESS: LANDLORD: CEDAR- STONHEDGE, LP By: Cedar Stonehedge Square GP,.LLC its General Partner By; Cedar Shopping Centers Partnership, L.P. `its Sole Member By: Cedar Shopping Centers, Ine. its General Partner kil 161 { B t r Na e: N me: Lodnda J. Walker Tit : Title: Mee President WITNESS: ANT= 7T— _ G AWALT, J.R. TINA GREENAWALT 6 EXHIBIT E" Assignment and Assumption of Lease and Security Deposit 9 ASSIGNMENT AND ASSUMPTION AGREEMENT ( " Assignment Agreement ") made this day of , 2012, between JACK R. GREENAWALT, JR. and TINA GREENAWALT d /b /a :irlisle Coffee and Smoothie Cafe (the " Assi nor "), jointly and severally adult individuals with an address of 2570 Waterford, Camp Hill, PA 17011, and HECKEPOP, INC. (the "Assignee "), a Pennsylvania corporation with an address of 950 Walnut Bottom Rd., #24, Carlisle, PA 17015. WITNESSETH: WHEREAS, Assignor is the tenant under that certain lease dated April 8, 2004 by and between Stonehedge Center LLC, as landlord, predecessor in interest to Cedar - Stonehedge, LP (the "Landlord "), and Carlisle Coffee Company, Inc., as tenant, predecessor in interest to Assignor, as modified by that certain: (i) Assignment and Assumption Agreement from Carlisle Coffee Company, Inc. to Bradley L. Eline and Susan P. Eline dated December 31, 2007; (ii) Assignment and Assumption Agreement from Bradley L. Eline and Susan P. Eline to Jack R. Greenawalt, Jr. and Tina Greenawalt dated May 8, 2009; and (iii) Lease Modification Agreement dated June 16, 2009 (said lease agreement, as so amended, is hereinafter referred to as the " Lease ") for certain premises all as more particularly described in the Lease (the " Premises ") and located in the shopping center known as Stonehedge Square, 950 Walnut Bottom Road, Carlisle, PA 17013 (the "Shopping Center "); and WHEREAS, pursuant to the Lease, Landlord is presently holding a security deposit in the amount of $5,646.68 ( " Security Deposit " ); and WHEREAS, pursuant to a purchase and sale agreement ( " Agreement "), dated M 4 �1 /Z Assignor, as seller, and Assignee, as purchaser, Assignor agreed inter alia to sign the Lease and Security Deposit to Assignee on the closing date ( " Closing Date " ) set forth in the Agreement, and Assignee agreed to assume the obligations of Assignor thereafter under the Lease, according to the terms hereinafter set forth; NOW, THEREFORE, it is agreed: 1. Assignor hereby assigns, transfers, releases and sets over unto Assignee without recourse, except as expressly set forth in the Agreement, the estate of Assignor as tenant created by the Lease, together with all of Assignor's right, title and interest in, to and under the Lease and the Security Deposit; and TO HAVEAND TO HOLD the same unto Assignee, its successors and assigns, from and after the date hereof and for all the remainder of the respective terms of the Lease and any renewals or extensions thereof, subject to the rents, covenants, terms and conditions contained therein. The foregoing assignments are expressly made without representation or warranty (either expressed or implied) of any nature or kind, or recourse against Assignor in any event, unless S:\ Legal\ Leases\ Pennsylvania \sionehedge \Cariisle Coffee\Assignment 201MEASEassignment.doc expressly set forth herein or in the Agreement. 2. Assignee hereby accepts the assignment from Assignor of the Lease and the Security Deposit and hereby assumes the obligation to observe and perform all of the terms, covenants and conditions thereof to be observed or performed by Assignor as tenant thereunder from and after the date hereof, with the same force and effect as if Assignee had executed the Lease originally as an original signatory. Assignee hereby acknowledges receipt of a copy of the Lease and agrees to seek recovery of the Security Deposit solely from Landlord in accordance with the terms of the Lease and waives any claims against Assignor therefor. Assignor represents and warrants to Assignee that the amount of the Security Deposit is $5,646.68. 3. Assignee shall indemnify, hold harmless and defend Assignor and Landlord from and against any and all indemnified liabilities (as may be defined in the Agreement) asserted against, imposed upon or incurred by Assignor or Landlord, directly or indirectly, by reason of or arising from claims by the Landlord under the Lease with respect to events occurring or matters arising after the Closing Date (as such term is defined in the Agreement) or otherwise due to Assignee's breach of any term of this Assignment Agreement. 4. This Assignment Agreement may not be amended, modified or terminated except by an instrument in writing executed by the parties hereto. 5. This Assignment Agreement shall be binding upon and shall inure to the benefit of the parties hereto and their respective heirs, successors and assigns. IN WITNESS WHEREOF, the parties hereto have executed this agreement as of the day and year first above written. or: JA CE AWALT, JR. TINA GREENAWALT l Assignee HECKEPOP, IN By: Name: Title: Pre ti j c vt4' S:\Legal\ Leases \Pennsylvania \stonehedge \Carlisle CoffeMssignment 201MEASEassignment.doc ����� EXHIBIT Cedar - Stonehedge, LP c/o Cedar Shopping Centers, Inc. 44 South Bayles Avenue Port Washington, New York 11050 OL 2012 Mr. Jack. R. Greenawalt, Jr. (gpimarketing @comeast.net) Ms. Tina Greenawalt d/b /a Carlisle Coffee & Smoothie Cafe 2570 Waterford Camp Hill, PA 17011 Mr. Matthew Popik (mpopik@verizon.net) Ms. Danielle Popik 1728 Creek Vista Drive New Cumberland, PA 17070 Re: (i) That certain lease agreement dated as of April 8, 2004 by and between Stonehedge Center LLC, as landlord, predecessor in interest to Cedar - Stonehedge, LP (the "Landlord "), and Carlisle Coffee Company, Inc., as tenant, predecessor in interest to Jack R. Greenawalt, Jr. and Tina Greenawalt d /b /a Carlisle Coffee and Smoothie Cafe (the "Tenant "), as modified by that certain: (i) Assignment and Assumption Agreement from Carlisle Coffee Company, Inc. to Bradley I,. Eline and Susan P. Eline dated December 31, 2007; (ii) Assignment and Assumption Agreement from Bradley L. Mine and Susan P. Eline to Jack R. Greenawalt, Jr. and Tina Greenawalt dated May 8, 2009; and (iii) Lease Modification Agreement dated June 16, 2009 (the "Lease ") for a certain premises described therein. (the "Premises ") in the shopping center known as Stonehedge Square, 950 Walnut Bottom Road, Carlisle, PA 17013 (the "Shopping Center "); and (ii) Pro sed assignment and assumption of Lease dated as of 1 { _ —_ 201.2 (the "Assignment and Assumption Agreeme it ") between Tenant, as assignor, (the "Assignor ") and Heckepop, Inc., as assignee (the "Assignee''), relating to the Lease. Dear Sir or Madaln: Reference is made to the above captioned Lease and Assignment: and Assumption Agreement. You have requested the consent of the Landlord to the Assignment and Assumption Agreement pursuant to the terms of the Lease. Terrns used in this Agreement and not otherwise defined herein shall have the respective meanings ascribed thereto in the Lease. S I cga! Lcases \PennsyivanialstonchedgciCar ?isle Coffcc' 2CMConsent to Assign 01 doc Landlord hereby consents to the Assignment and Assumption Agreement upon the following terms and conditions: . I . Assignor and Assignee represent and warrant to Landlord that a true and complete copy of the Assignment and Assumption Agreement is annexed hereto as Exhibit A. Neither the giving of this Consent nor anything contained herein or in the Assignment and Assumption Agreement shall be construed to modify, waive, impair or affect any of the covenants, agreements, terms, provisions, obligations or conditions contained in the Lease, or to waive any breach thereof, or any rights Landlord may have against either the Assignor or Assignee, as the case may be, or any person and/or entity liable or responsible for the performance thereof, or to increase the obligations or diminish the rights of Landlord under the Lease, or to increase the rights or diminish the obligations of Tenant thereunder, or to, in any way, be construed as giving Assignee any greater rights than the original Tenant named in the Lease would be entitled to, and all covenants, agreements, terms, provisions and conditions of the Lease are hereby mutually declared to be in full. force and effect. 2. This Consent is given in consideration of the covenants and agreements of the Assignor and Assignee contained in the Assignment and Assumption Agreement and upon the condition that all Minimum Rent, Additional Rent and all other charges (the "Rentals") which have arisen prior. to the date hereof shall be conclusive and binding upon both the Assignor and Assignee and shall be paid. without offset or deduction of any kind. Tenant acknowledges and agrees that the Lease has not been modified and remains in full force and effect, Landlord has not waived any requirement of the Lease and Landlord is not in breach of the Lease and Tenant has no claim for any failure of Landlord to perform its obligations under the Lease. It is a further condition to this consent that (i) Assignor shall not be released from any of its obligations under the Lease; (ii) Assignor shall upon execution hereof pay all items of Rentals due and owing through the date hereof (exclusive of any item not yet billed to date); and (iii) that all of the rights and remedies of the undersigned, as Landlord, contained in the Lease shall remain unmodified and in frill force and effect. 3. Assignor hereby agrees that the obligations of Assignor under the Lease and this Consent shall not be discharged or otherwise affected by reason of the giving or withholding of any consent or approval for which provision is made in the Lease, by reason of any amendment or modification of the Lease hereafter entered into by Landlord ana Assignee, or by reason of any other act or omission of Landlord. The giving of this Consent shall not be deemed or serve to release Tenant named in the Lease or any successor in. interest to said Tenant from any liability, obligation or duty which such 'Tenant or such successor in interest may have. 4. As of the date of the Assignment and Assumption Agreement the ( "Effective Date "), Assignee, for Assignee and its successors and permitted assigns, hereby (a) accepts the assignment, by Assignor, of Tenant's interest in and to the Lease, (b) recognizes all of the covenants, agreements, terms, provisions, obligations and conditions contained in the Lease accruing frorn and after the Effective Date and assumes all of said terms, provisions, agreements, covenants, obligations and conditions of the Lease on the part of Tenant to be kept, observed and performed accruing from and after the Effective Date, (c) assumes and agrees to pay the .Rentals, 2 damages and all other sums payable by Tenant under the Lease accruing from and after the Effective Date, expressly including as such (but not limited to) adjustments of rent, and any and all charges for any additional electric energy, property, material, labor, utility or other similar or dissimilar services or materials rendered or supplied or furnished by Landlord in, to, or in connection with the Premises or any part thereof, and (d) agrees to keep and perform, and to permit no violation of, each and every covenant, agreement, term, provision, obligation and condition therein set forth on the part of Tenant to be kept, observed and performed. 5. The giving of this Consent shall not result in any liability on the part of Landlord for the payment of any commissions or fees in connection with the proposed assignment transaction herein contemplated by Assignor and Assignee; Assignor and Assignee hereby covenant and agree the Landlord is not and will not be responsible for the payment of any commissions or fees in connection with the aforesaid assignment transaction and agree to indemnify and hold Landlord harmless from and against any claims, liability, losses or expenses, including attorneys' fees and court costs, incurred by Landlord in connection with any claims for a commission or fee by any broker, agent or finder in connection with said assignment transaction. Assignor and Assignee warrant and represent to Landlord that they have not dealt with any broker, agent or finder in connection with the Assignment and Assumption Agreement. 6. Assignor and Assignee hereby represent, covenant and warrant to Landlord that no compensation or other consideration of any kind has been or will be paid by Assignee to Assignor in connection with the aforesaid assignment. Assignor shall pay to .Landlord promptly on demand therefor as additional rent, all costs and expenses (including, without limitation, reasonable attorneys' fees and. disbursements) incurred by Landlord in connection with its review of the Assignment and Assumption Agreement, all related documentation and the negotiation and preparation of this Consent. 7. Landlord shall be under no obligation to commence proceedings or exhaust any of its remedies against Assignee before proceeding against Assignor, or against Assignor before proceeding against Assignee, for any redress provided for in the Lease or this Consent, or at law or equity, and Assignor and Assignees acknowledge and agree that they shall remain jointly and severally liable at all times for all obligations of the tenant accruing under or with respect to the Lease. 8. Assignor and Assignee hereby agree that (a) Landlord is not a party to the Assignment and Assumption Agreement and is not bound by the provisions thereof, and recognize that accordingly Landlord has not, and will not, review or pass upon any of the provisions of the Assignment and Assumption Agreement; and (b) the Assignment and Assumption Agreement shall not be modified or amended in any way without the prior written consent of Landlord. 4. This consent shall not be deemed to constitute a waiver of the requirement contained in the Lease that the prior written consent of the Landlord be obtained in each instance to any other or further assignment of the Lease or subletting of all or any portion of the Premises. With respect to any permitted assignment or subletting, any right of leaseback or recapture of the Premises, or portion thereof, shall be for the benefit of Landlord and not the Assignor, and any 3 profit received by Assignor and /or Assignee .in connection with any permitted assignment or subletting shall be paid to Landlord. 10. In the event of any conflict between the provisions of (i) the Lease or this Consent and (ii) the Assignment and Assumption Agreement, the provisions of the Lease or this Consent shall prevail unaffected by the provisions of the Assignment and Assumption Agreement. (TIDE BALANCE OF THIS PAGE TS INTENTIONALLY LEFT BLANK) 4 1 1. 1 - his Consent shall not be.binding upon Landlord unless. and until it is signed and delivered by Landlord. Landlord: CEDAR- S�TONEHEDGE, LP N£U7lc: ii (IQu . Walker Title: Vice President Assignor and .assignee jointly and severally agree to the foregoing terms and conditions of this Consent as of the date set forth above. Tenant- Assignor - - -- 9h. ,I1 'REENANVALI,JI't. /// TINA GREENAWALT Assignee: HECKEPOP, INC. Name: A Title: { 5 EXHIBIT A (to be attached) 6 Assignment and Assumption of Lease and Security Deposit ASSIGNMENT AND ASSUMPTION AGREEMENT ( " Assignment Agreement made this day of 2012, between JACK R. GREENAWALT, JR. and TINA GREENAWALT d2a. Carli 51e Coffee and Smoothie Cafe (the "Assi or "), jointly and severally adult individuals with an address of 2570 Waterford, Camp Hill, PA 17011, and HECKEPOP, INC. (the "Assignee "), a Pennsylvania corporation with an address of 950 Walnut Bottom Rd., #24, Carlisle, PA 17015. WITNESSETH: WHEREAS, Assignor is the tenant under that. certain lease dated April 8, 2004 by and between. Stonehedge Center LLC, as landlord, predecessor in interest to Cedar - Stonehedge, LP (the "Landlord "), and Carlisle Coffee Company, Inc., as tenant, predecessor in interest to Assignor, as modified by that certain: (i) Assignment and Assumption Agreement from Carlisle Coffee Company, Inc. to Bradley L. Eline and Susan P. Eline dated December 31, 2007; (ii) Assignment and Assumption Agreement from Bradley L. Eline and Susan P. Eline to Jack R. Greenawalt, Jr. and Tina Greenawalt dated May 8, 2009; and (iii) Lease Modification Agreement dated June 16, 2009 (said lease agreement, as so amended, is hereinafter referred to as the " Lease ") for certain premises all as more particularly described in the Lease (the " Premises ") and located in the shopping center known as Stonehedge Square, 950 Walnut Bottom Road, Carlisle, PA 17013 (the "Shopping Center "); and WHEREAS, pursuant to the Lease, Landlord is presently holding a security deposit in the amount of $5,646.68 ( " Security Deposit " ); and WHEREAS, pursuant to a purchase and sale agreement ( "Agre "), dated Al - � "7 ( v,_ W 14- between Assignor, as seller, and Assignee, as purchaser, Assignor agreed inter alia to ssia� gn the Lease and Security Deposit to Assignee on the closing date ( " Closing Date set forth in the Agreement, and Assignee agreed to assume the obligations of Assignor thereafter under the Lease, according to the terms hereinafter set forth; NOW, THEREFORE, it is agreed: 1. Assignor hereby assigns, transfers, releases and sets over unto Assignee without recourse, except as expressly set forth in the Agreement, the estate of Assignor as tenant created by the Lease, together with all of Assignor's right, title and interest in, to and under the Lease and the Security Deposit; and TO HA.VEAND TO HOLD the same unto Assignee, its successors and assigns, from and after the date hereof and for all the remainder of the respective terms of the Lease and any rene or extensions thereof, subject to the rents, covenants, terms and conditions contained therein. The foregoing assignments are expressly made without representation or warranty (either expressed or implied) of any nature or kind, or recourse against Assignor in any event, unless S: l- egalkL tiasesTennsylvanialstonehedge \Carlisle Coffee'slssignment 20121LE.4SEassignment.doc expressly set forth herein or in the Agreement. 2. Assignee hereby accepts the assignment from Assignor of the Lease and the Security Deposit and hereby assumes the obligation to observe and perform all of the terms, covenants and conditions thereof to be observed or performed by Assignor as tenant thereunder from and after the date hereof, with the same force and effect as if Assignee had executed the Lease originally as an original signatory. Assignee hereby acknowledges receipt of a copy of the Lease and agrees to seek recovery of the Security Deposit solely from Landlord in accordance with the terms of the Lease and waives any claims against Assignor therefor. Assignor represents and warrants to Assignee that the amount of the Security Deposit is $5,646.68. 3. Assignee shall indemnify, hold harmless and defend Assignor and Landlord from and against any and all indemnified liabilities (as may be defined in the Agreement) asserted against, imposed upon or incurred by Assignor or Landlord, directly or indirectly, by reason of or arising from claims by the Landlord under the Lease with respect to events occurring or matters arising after the Closing Date (as such term is defined in the Agreement) or otherwise due to Assignee's breach of any term of this Assignment Agreement. 4. This Assignment Agreement may not be amended, modified or terminated except by an instrument in writing executed by the parties hereto. 5. This Assignment Agreement shall be binding upon and shall inure to the benefit of the parties .hereto and their respective heirs, successors and assigns. IN WITNESS WHEREOF, the parties hereto have executed this agreement as of the day and year first above written. �s or: JAS � El A WALT, JR. C I TINA GREENAWALT Assignee HECKEPOP, INC.. BY:�"� Name: A(-/P it Title:� S:\ l. egaltiLeases lPennsylvanialstoneltedge \Carlisle CoMel.Assignment 2012',LEASEassignment.doc .. �� EXt►I G LEASE GUARANTY In consideration of, and as an inducement for the granting, execUU011 and delivery of that certain Landlord's Consent to that certain assigrunent of lease, dated as of I 1 G , 2012 from JACK R. GREENAWALT, JR.. and TINA GREENAWALT d /b /a Carlisle and Smoothie Cafe as assignor to HECKEPOP, INC. as assignee pertaining to that certain lease, by Stonehedge Center LLC, predecessor in interest to Cedar - Stonehedge, LP, as landlord ( "Landlord," which term shall, for the purposes of this Agreement, include the .named Landlord and its successors and assigns), to Carlisle Coffee Company, .Inc., as tenant, predecessor in interest to JACK R. GREENAWALT, JR. and TINA GREENAWALT d/b /a Carlisle Coffee and Smoothie Cafe ( "Tenant," which term shall be deemed to include the named tenant and its successors and assigns), and in further consideration of the sum of One ($1.00) Dollar and other good and valuable consideration paid by Landlord to the undersigned, the receipt and sufficiency of which are hereby acknowledged, the undersigned MATTHEW D. POPIK AND DANIELLE POPIK, jointly and severally, ( "Guarantor," which term shall be deemed to include the named Guarantors and their successors and assigns), hereby guarantees, absolutely and unconditionally, to Landlord the full and prompt payment of rent, additional rent and all other charges and sums (including, without limitation, Landlord's legal expense and attorneys' fees and disbursements) payable by Tenant under the Lease, and hereby further guarantees the full and timely performance and observance of all the covenants, terms, conditions and agreements therein provided to be performed and observed by Tenant and Guarantor hereby covenants and agrees to and with Landlord that if default shall at any time be made by Tenant in the payment of any rent, additional rent or any other charges and sums, or if Tenant shall default in the performance and observance of any of the terms, covenants and conditions contained in the Lease, Guarantor shall and will forthwith. pay rent, additional rent and all other charges and sums, to Landlord and any arrears thereof, and shall and will forthwith faithfully perform and fulfill all of such terms, covenants and conditions and will forthwith pay to Landlord all damages that may arise in consequence of any default by "Tenant under the Lease, including, without limitation, all reasonable attorneys' fees and disbursements. incurred by Landlord or caused by any such default or the enforcement of this Guaranty. This Guaranty is an absolute and unconditional guaranty of payment (as opposed to merely a guaranty of collection) and of performance. The liability of Guarantor is co- extensive with that of Tenant and also joint and several and this Guaranty shall be enforceable against Guarantor without the necessity of any notice of non- payment, non- performance or non- observance or any notice of acceptance of this Guaranty or of any other notice or demand to which Guarantor might otherwise be entitled, all of which Guarantor hereby expressly waives. Guarantor hereby expressly agrees that the validity of the Guaranty and the obligations of Guarantor Hereunder shall in no way be terminated, affected, diminished or impaired by reason of (a) assertion or the failure to assert by Landlord against Tenant of any of the rights or remedies reserved to Landlord pursuant to the terms, covenants and conditions of the Lease, or (b) any non - liability of Tenant under the Lease, whether by insolvency, discharge in bankruptcy, or any other defect or defense which may now or hereafter exist in favor of Tenant. This Guaranty shall be a continuing guaranty, and the liability of Guarantor hereunder shall in no way be affected, modified or diminished by reason of (a) any assignment, renewal, modification, amendment or extension of Lease, or (b) any modification or waiver of or change in any of the terms, covenants and conditions of the Lease by Landlord and Tenant, or (c) any extension of time that may be granted by Landlord to Tenant, (d) any consent, .release indulgence or other action, inaction or omission 1. S:tI veal\ L.eases\Pennsylvania \stonehedge \Carlisle Coffee \Assigmnent 201 2%Guaranty j and sdoc IN WITNESS WHEREOF, the undersigned has duly executed the Guaranty as of this I�= day ' of _ _, 2012. GU;ARA OR: / Z L % 1 t ! % Z MAT HEW D. VQPIK DANIELLE POPI,K Soc Sec. No.: _ ,� " S `�(a7 Soc See. No:: Address: 1728 Creek Vista Drive New Cumberland, PA 17070 State of 4> ) SS: County of O (A" o tt Lti ) On the day of I\kA in the year 2012 before me, the undersigned, personally appeared I b f ., personally known tome or proved tome on the basis of satisfactory evidence to be the individual(s) whose name(s) is (axe) subscribed to the within instrument and acknowledged to me that he /site /they executed the same in his /lrer4their capacity(ies), and that by his /hcrhheir signatures) on the instrument, the individual(s) or the person upon behalf of which the individual(s) acted executed the instrument, and. that such individual made such appearance before the undersigned in the (insert the City or other political subdivision) in V a"i \ (insert the State or Count y or other place the acknowledgement was taken). \ Name: Tit] e:'JU\ Seal: (insert signature, name and Office of individual taking acknowledgement) COM MONWEALTH OF PENNSYLVANIA NOTARIAL SEAL CHRISTINA L. NICHOLAS, Notary Public { Lower Paxton Twp., Dauphin County My Commission Expires June 20, 2013 � 3 S:\ Leg ai`. Leases•.Pennsylvania \stonehedge \Carlisle Coffee\Assignment 2012\Guaranty j and s.doc State of } SS: County of On the ` day of ;L• �- - -_ in the year 2012 be fore me, the undersigned, personally appeared { ii i� _, prsolial ly known to me or proved to me on the basis of satisfactory evidence to be the individual(s) whose name(s) is (arej subscribed to the within instrument and acknowledged to me that he /sheithey executed the same in his /her /their capacity(ies), and that by his/her /their signaturc(s) on the instrument, the individual(s) or the person upon behalf of which the individual(s) acted, executed the instfunient, and that such individual made such appearance before the undersigned in the l { N( ' o\ � ' , _ (insert the City or other political subdivision) in ___(insert the State or County or other place the acknowledgement was taken) . Name: Title: N U C) A Seal: (insert signature, name and Office of individual taking acknowledgement) COMMONWEALTH OF PENNSYLVANIA NOTARIAL SEAL CHRISTINA L. NICHOLAS, Notary Public Lower Paxton Twp., Dauphin County My Commission Expires June 20, 2013 4 S: \Legal\L eases\}' ennsylvania \stenehedge'tcarlisle Coffee \Assi;nmcnt 2012\Guarwity j and s.doc EXHIBIT "H„ Report Id: PRU_CMAGEDLN Aged Delinquencies Page: 1 Database: PREI Prudential Real Estate Investment Date: 12/17/2013 BLDG: 439706 Stonehedge Square Time: 09:52 AM Period: 12/13 Invoice Date Category Source Amount Current 1 Month 2 Months 3 Months 4 Months 439706- EL6783 Carlisle Coffee & Smoothie Caf Master Occupant Id: Carlisle -1 Day Due: 1 Delq Day: Matthew & Danielle Popik 31 Current Last Payment: 121212013 147.38 (717) 5714680 111112012 EEC Estimated CAM Recovery CH 208.34 0.00 0.00 0.00 0.00 208.34 12/1/2012 EEC Estimated CAM Recovery CH 208.34 0.00 0.00 0.00 0.00 208.34 1/1/2013 EEC Estimated CAM Recovery CH 208.34 0.00 0.00 0.00 0.00 208.34 2/1/2013 EEC Estimated CAM Recovery CH 208.34 0.00 0.00 0.00 0.00 208.34 3/1/2013 EEC Estimated CAM Recovery CH 208.34 0.00 0.00 0.00 0.00 208.34 4/1/2013 EEC Estimated CAM Recovery CH 234.82 0.00 0.00 0.00 0.00 234.82 4/1/2013 EET Estimated Recovery of Taxes CH 197.83 0.00 0.00 0.00 0.00 197.83 4/1/2013 MFR Mgmnt Fee Reimbursement CH 17.95 0.00 0.00 0.00 0.00 17.95 4/11/2013 WTR Direct Water Billings to CH 77.92 0.00 0.00 0.00 0.00 77.92 4/11/2013 WTR Direct Water Billings to CH 75.94 0.00 0.00 0.00 0.00 75.94 4/11/2013 WrR Direct Water Billings to CH 81.88 0.00 0.00 0.00 0.00 81.88 5/112013 EEC Estimated CAM Recovery CH 234.82 0.00 0.00 0.00 0.00 234.82 511/2013 EET Estimated Recovery of Taxes CH 197.83 0.00 0.00 0.00 0.00 197.83 5/1/2013 MFR Mgmnt Fee Reimbursement CH 101.28 0.00 0.00 0.00 0.00 101.28 5/1/2013 RTL Rent -Base Retail CH 2,916.67 0.00 0.00 0.00 0.00 2,916.67 5/7/2013 WrR Direct Water Billings to CH 82.87 0.00 0.00 0.00 0.00 82.87 5/13/2013 ARA Due Previous Owner CH 272.28 0.00 0.00 0.00 0.00 272.28 5/13/2013 EAT Recovery Taxes, Actual CH 76.99 0.00 0.00 0.00 0.00 76.99 5/14/2013 ARA Due Previous Owner NC - 351.91 0.00 0.00 0.00 0.00 - 351.91 5/14/2013 CA1 Common Area Maintenance -i NC - 129.54 0.00 0.00 0.00 0.00 - 129.54 5/24/2013 WTR Direct Water Billings to CH 76.70 0.00 0.00 0.00 0.00 76.70 6/1/2013 EEC Estimated CAM Recovey CH 234.82 0.00 0.00 0.00 0.00 234.82 6/1/2013 EET Estimated Recovery of Taxes CH 197.83 0.00 0.00 0.00 0.00 197.83 6/1/2013 MFR Mgmnt Fee Reimbursement CH 101.28 0.00 0.00 0.00 0.00 101.28 6/1/2013 RTL Rent -Base Retail CH 2,916.67 0.00 0.00 0.00 0.00 2,916.67 7/1/2013 EEC Estimated CAM Recovery CH 234.82 0.00 0.00 0.00 0.00 234.82 7/112013 EET Estimated Recovery of Taxes CH 197.83 0.00 0.00 0.00 0.00 197.83 7/1/2013 MFR Mgmnt Fee Reimbursement CH 101.28 0.00 0.00 0.00 0.00 101.28 7/1/2013 RTL Rent -Base Retail CH 2,916.67 0.00 0.00 0.00 0.00 2,916.67 7/8/2013 WTR Direct Water Billings to CH 70.75 0.00 0.00 0.00 0.00 70.75 8/1/2013 EEC Estimated CAM Recovery CH 234.82 0.00 0.00 0.00 0.00 234.82 8/1/2013 EET Estimated Recovery of Taxes CH 197.83 0.00 0.00 0.00 0.00 197.83 8/1/2013 MFR Mgmnt Fee Reimbursement CH 101.28 0.00 0.00 0.00 0.00 101.28 8/1/2013 RTL Rent -Base Retail CH 2,916.67 0.00 0.00 0.00 0.00 2,916.67 8/13/2013 WTR Direct Water Billings to CH 68.51 0.00 0.00 0.00 0.00 68.51 9/1/2013 EEC Estimated CAM Recovery CH 234.82 0.00 0.00 0.00 234.82 0.00 9/1/2013 EET Estimated Recovery of Taxes CH 197.83 0.00 0.00 0.00 197.83 0.00 911/2013 MFR Mgmnt Fee Reimbursement CH 101.28 0.00 0.00 0.00 101.28 0.00 9/1/2013 RTL Rent -Base Retail CH 2,916.67 0.00 0.00 0.00 2,916.67 0.00 9/11/2013 WTR Direct Water Billings to CH 71.81 0.00 0.00 0.00 71.81 0.00 9/13/2013 WTR Direct Water Billings to CH 69.10 0.00 0.00 0.00 69.10 0.00 10/1/2013 EEC Estimated CAM Recovery CH 234.82 0.00 0.00 234.82 0.00 0.00 1011/2013 EET Estimated Recovery of Taxes CH 197.83 0.00 0.00 197.83 0.00 0.00 10/1/2013 MFR Mgmnt Fee Reimbursement CH 101.28 0.00 0.00 101.28 0.00 0.00 10/1/2013 RTL Rent -Base Retail CH 2,916.67 0.00 0.00 2,916.67 0.00 0.00 10/16/2013 WTR Direct Water Billings to CH 55.61 0.00 0.00 55.61 0.00 0.00 10/25/2013 LFE Legal Fees CH 909.07 0.00 909.07 0.00 0.00 0.00 11/1/2013 EEC Estimated CAM Recovery CH 234.82 0.00 234.82 0.00 0.00 0.00 11/1/2013 EET Estimated Recovery of Taxes CH 197.83 0.00 197.83 0.00 0.00 0.00 11/1/2013 MFR Mgmnt Fee Reimbursement CH 101.28 0.00 101.28 0.00 0.00 0.00 11/1/2013 RTL Rent -Base Retail CH 3,166.67 0.00 3,166.67 0.00 0.00 0.00 11/20/2013 WTR Direct Water Billings to CH 54.23 0.00 54.23 0.00 0.00 0.00 12/1/2013 EEC Estimated CAM Recovery CH 234.82 234.82 0.00 0.00 0.00 0.00 12/112013 EET Estimated Recovery of Taxes CH 197.83 197.83 0.00 0.00 0.00 0.00 Report Id: PRU_CMAGEDLN Aged Delinquencies Page: 2 Database: PREI Prudential Real Estate Investment Date: 12117/2013 BLDG: 439706 Stonehedge Square Time: 09:52 AM Period: 12/13 Invoice Date Category Source Amount Current 1 Month 2 Months 3 Months 4 Months 12/1/2013 MFR Mgmnt Fee Reimbursement CH 101.28 101.28 0.00 0.00 0.00 0.00 12/1/2013 RTL Rent -Base Retail CH 3,166.67 3,166.67 0.00 0.00 0.00 0.00 12/5/2013 LFE Legal Fees CH 1,105.00 1,105.00 0.00 0.00 0.00 0.00 12/5/2013 LFE Legal Fees CH 1,970.95 1,970.95 0.00 0.00 0.00 0.00 ARA Due Previous Owner -79.63 0.00 0.00 0.00 0.00 -79.63 CAI Common Area Maintenance - Actual - 129.54 0.00 0.00 0.00 0.00 - 129.54 EAT Recovery Taxes, Actual 76.99 0.00 0.00 0.00 0.00 76.99 EEC Estimated CAM Recovery 3,155.08 234.82 234.82 234.82 234.82 2,215.80 EET Estimated Recovery of Taxes 1,780.47 197.83 197.83 197.83 197.83 989.15 LFE Legai Fees 3,985.02 3,075.95 909.07 0.00 0.00 0.00 MFR Mgmnt Fee Reimbursement 828.19 101.28 101.28 101.28 101.28 423.07 RTL Rent -Base Retail 23,833.36 3,166.67 3,166.67 2,916.67 2,916.67 11,666.68 WTR Direct Water Billings to 785.32 0.00 54.23 55.61 140.91 534.57 Carlisle Coffee & Smoothle Caf Total: 34,235.26 6,776.55 4,663.90 3,506.21 3,591.51 15,697.09 ARA Due Previous Owner -79.63 0.00 0.00 0.00 0.00 -79.63 CAI Common Area Maintenance - Actual - 129.54 0.00 0.00 0.00 0.00 - 129.54 1 EAT Recovery Taxes, Actual 76.99 0.00 0.00 0.00 0.00 76.99 EEC Estimated CAM Recovery 3,155.08 234.82 234.82 234.82 234.82 2,215.80 EET Estimated Recovery of Taxes 1,780.47 197.83 197.83 197.83 197.83 989.15 LFE Legal Fees 3,985.02 3,075.95 909.07 0.00 0.00 0.00 MFR Mgmnt Fee Reimbursement 828.19 101.28 101.28 101.28 101.28 423.07 RTL Rent -Base Retail 23,833.36 3,166.67 3,166.67 2,916.67 2,916.67 11,666.68 WTR Di rect Water Bi llings to 785. 0.00 54.2 55.61 140.91 534.57 BLDG 439706 Total: 34,235.26 6,776.55 4,663.90 3,506.21 3,591.51 15,697.09 ARA Due Previous Owner -79.63 0.00 0.00 0.00 0.00 -79.63 CAI Common Area Maintenance - Actual - 129.54 0.00 0.00 0.00 0.00 - 129.54 EAT Recovery Taxes, Actual 76.99 0.00 0.00 0.00 0.00 76.99 EEC Estimated CAM Recovery 3,155.08 234.82 234.82 234.82 234.82 2,215.80 i EET Estimated Recovery of Taxes 1,780.47 197.83 197.83 197.83 197.83 989.15 LFE Legal Fees 3,985.02 3,075.95 909.07 0.00 0.00 0.00 MFR Mgmnt Fee Reimbursement 828.19 101.28 101.28 101.28 101.28 423.07 RTL Rent -Base Retail 23,833.36 3,166.67 3,166.67 2,916.67 2,916.67 11,666.68 j WTR Direct W ater B illings to 785.32 0.00 54.23 55.61 1 40.91 534.57 Grand Total: 34,235.26 6,776.55 4,663.90 3,506.21 3,591.51 15,697.09 e EXH I BIT "I" SIRLIN LESSER & BENSON, P.C. a A PROFESSIONAL CORPORATION ATTORNEYS AT LAW i ]ON C. SIRLIN PENNSYLVANIA OFFICE PETER A LESSER* 123 SOUTH BROAD STREET JOHN D. BENSON* SUITE 2100 SUSAN J. KUPERSMITH ** PHILADELPHIA, PA 19109 DANA S. PLON* (215) 864 -9700 DOROTHYANNE HAMILL* FAX (215) 864 -9669 LISA M. RUTENBERG ** JERRY 1. DREW NEW JERSEY OFFICE PATRICK J. TROY 102 BROWNING LANE KIERSTIN M. LANGE* BUILDING C ADAM NACHMANI* CHERRY HILL, NJ 08003 NICHOLAS C. CAMPELLONE* September 4, 2013 (856) 616 -1900 FAX (856) 216 -7459 -COU NSEL -PA & NJ BAR ­PA. NJ&MD 91 7199 9991 7 033 4905 7239 Matthew and Danielle Popik Heckepop Inc. t/a Carlisle Coffee 950 Walnut Bottom road Carlisle, PA 17015 Re: PR Stonehedge Square LP — Heckepop Inc. t/a Carlisle Coffee, Matthew Popik and Danielle Popik DEFAULT NOTICE — Stonehedge Shopping Center Our File No. 19869 Dear Mr. & Mrs. Popik: Please be advised of our representation of the Landlord at the Stonehedge Shopping Center. I have been advised by my client that Heckepop Inc. t/a Carlisle Coffee ("Tenant") and you as Guarantors are in default of the Lease dated April 8, 2004 as assigned on May 16, 2012 for failing to pay rent and proper charges through August 31, 2013 in the amount of $16,594.47 which includes legal fees in the current amount of $750.00. As you know, September rent and charges are now due as well. This letter will serve as formal notice of default pursuant to Section 15A(1) of the Lease. Unless the arrearage as well as September rent is paid in full within five (5) days from the date of this letter, I have been instructed to commence appropriate legal action against all responsible parties for past due charges, possession of the premises, additional attorney's fees, late fees, interest and accelerated rent through the remainder of the lease term without further notice or delay. S 1 R L I N LESSER & BENSON, P. C. Please avoid the expense and inconvenience of litigation and execution by making immediate payment and by contacting me to discuss this matter. Sincerely, PETER A. LESSER PAL /dp Via Certified and Regular Mail cc: Alexis H. Goodyear 4 , EXHIBIT ���" SIRLIN LESSER & BENSON, P.C. Y A PROFESSIONAL CORPORATION ATTORNEYS AT LAW i JON C. SIRLIN PENNSYLVANIA OFFICE PETER A LESSER* 123 SOUTH BROAD STREET JOHN D. BENSON* SUITE 2100 SUSAN J. KUPERSMITH ** PHILADELPHIA, PA 19109 DANA S. PLON* (215) 864 -9700 DOROTHYANNE HAMILL* FAX (215) 864 -9669 LISA M. RUTENBERG ** JERRY I. DREW NEW JERSEY OFFICE PATRICK J. TROY 102 BROWNING LANE KIERSTIN M. LANGE* BUILDING C ADAM NACHMANI* CHERRY HILL, NJ 08003 NICHOLAS C. CAMPELLONE* September 27, 2013 (856) 616 -1900 FAX (856) 216 -7459 -COUN -PA & NJ BAR • PA. NJ & MD 91 7199 9991 7033 0739 9005 Jack R. Greenwalt, Jr. Tina Greenwalt 2570 Waterford Camp Hill, PA 17011 Re: PR Stonehedge Square LP — Heckepop Inc. t/a Carlisle Coffee, Matthew Popik and Danielle Popik, Jack R. Greenwalt Jr. and Tina Greenwalt DEFAULT NOTICE — Stonehedge Shopping Center Our File No. 19869 Dear Mr. & Mrs. Greenwalt: Please be advised of our representation of the Landlord at the Stonehedge Shopping Center. I have been advised by my client that Heckepop Inc. t/a Carlisle Coffee ( "Tenant"), Matthew and Danielle Popik as Guarantors and you as Assignors are in default of the Lease dated April 8, 2004 as assigned on May 16, 2012 for failing to pay rent and proper charges through the date hereof in the amount of $20,185.98 which includes legal fees in the current amount of $750.00 (the "Arrearage "). This letter will serve as formal notice of default pursuant to Section 15A(1) of the Lease. Please note that October rent in the amount of $3,450.60 is due on October 1, 2013. Any payment received after October 1, 2013 will first be applied to October rent and the remaining part to the Arrearage. Unless the Arrearage is paid in full within five (5) days from the date of this letter, I have been instructed to commence appropriate legal action against you for past due charges, additional attorney's fees, late fees, interest and accelerated rent through the remainder of the lease term without further notice or delay. S I R L I N LESSER & BENSON, P. C. i" Please avoid the expense and inconvenience of litigation and execution by making immediate payment and by contacting me to discuss this matter. Sincerely, PETER A. LESSER PAL /dp Via Certified and Regular Mail cc: Alexis H. Goodyear SHERIFF'S OFFICE OF CUMBERLAND COUNTY Ronny R Anderson :- j Sheriff _ , , ° Q tl 6 i ,. Jody S Smith ro. Chief Deputy Richard W Stewart Solicitor .1;\.. T'1 Solicitor PENNSY BE LV N A AI PR Stondehedge Square LP vs. Case Number Jack R Greenawalt, Jr. (et al.) 2014-212 SHERIFF'S RETURN OF SERVICE 01/28/2014 Ronny R Anderson, Sheriff, being duly sworn according to law, states he made diligent search and inquiry for the within named Defendant to wit: Tina Greenawalt, but was unable to locate the Defendant in his bailiwick. The Sheriff therefore returns the within requested Complaint& Notice as"Not Found"at 2570 Waterford, Wormleysburg Borough, Wormleysburg, PA 17011. Deputies were advised that the defendant's moved out a year ago and a post office check was returned by the Wormleysburg Postmaster was returned unable to forward. 01/28/2014 Ronny R Anderson, Sheriff, being duly sworn according to law, states he made diligent search and inquiry for the within named Defendant to wit: Jack R Greenawalt, Jr., but was unable to locate the Defendant in his bailiwick. The Sheriff therefore returns the within requested Complaint& Notice as"Not Found"at 2570 Waterford, Wormleysburg Borough, Wormleysburg, PA 17011. Deputies were advised that the defendant's moved out a year ago and a post office check was returned by the Wormleysburg Postmaster was returned unable to forward. 01/31/2014 07:09 PM - Deputy Dennis Fry, being duly sworn according to law, served the requested Complaint& Notice by handing a true copy to a person representing themselves to be Matthew D Popik, husband, who accepted as"Adult Person in Charge"for Danielle Popik at 1728 Creek Vista Drive, Lower Allen, New Cumberland, PA 17070. DEN FRY, D TY 01/31/2014 07:09 PM - Deputy Dennis Fry, being duly sworn according to law, served the requested Complaint& Notice by"personally" handing a true copy to a person representing themselves to be the Defendant, to wit: Matthew D Popik at 1728 Creek Vista Drive, Lower Allen, New Cumberland, PA 17070. ,, yam-4-- DE IS FRY, P" 'UTY SHERIFF COST: $160.58 SO ANSWERS, 9-.. . Xig." February 12, 2014 RONIR ANDERSON, SHERIFF Peter A. Lesser, Esquire Dana S. Plon, Esquire dplon@sirlinlaw.com Identification No. 59433/80361 SIRLIN LESSER & BENSON, P.C. 123 South Broad Street, Suite 2100 Philadelphia, PA 19109 (215) 864-9700 PR STONEHEDGE SQUARE LP, by and through: its General Partner: PR Stonehedge Square GP LLC V. JACK R. GREENAWALT, JR. and TINA GREENAWALT and MATTHEW D. POPIK and DANIELLE POPIK J--otze M-hoile- 0,2otq Moir 091 FMjt att-efrat(d PA Attorney for Plaintiff CUMBERLAND COUNTY COURT OF COMMON PLEAS No. 14-212 - Civil PRAECIPE TO REINSTATE COMPLAINT TO THE PROTHONOTARY: Kindly reinstate the Complaint in the above-captioned action for an additional thirty (30) days. Attorney March 11, 2014 or Plaintiff -Pct. ig cyjt hflociAtE3 R-11-3032.K3 Ronny R Anderson Sheriff Jody S Smith Chief Deputy Richard W Stewart Solicitor SHERIFF'S OFFICE OF CUMBERLAND COUNTY 7 21)14 APR -2 P11 Li; 1t CUMBERLAND COUNTY OFFIGE OF $1.4",RIFF PENNSYLVANIA PR Stondehedge Square LP vs. Jack R Greenawalt, Jr. (et al.) Case Number 2014-212 SHERIFF'S RETURN OF SERVICE 03/24/2014 04:08 PM - Deputy Dawn Kell, being duly sworn according to law, served the requested Complaint & Notice by handing a true copy to a person representing themselves to be Joann Pickel, Office Manager, who accepted as "Adult Person in Charge for Jack R Greenawalt, Jr. at 765 Poplar Church Road, East Pennsboro, Camp Hill, PA 17011. cu_4.5y■ DAWN KELL, DEPUTY 03/24/2014 04:08 PM - Deputy Dawn Kell, being duly sworn according to law, served the requested Complaint & Notice by handing a true copy to a person representing themselves to be Joann Pickel, Office Manager, who accepted as "Adult Person in Charge" for Tina Greenawalt at 765 Poplar Church Road, East Pennsboro, Camp Hill, PA 17011. 0,, J 16m.._ DAWN KELL, DEPUTY SHERIFF COST: $60.95 SO ANSWERS, March 25, 2014 RONNY R ANDERSON, SHERIFF (c) CountySuina Sherif!, To!enscft. inc. LAW OFFICES OF PETER J. RUSSO, P.C. Peter J. Russo, Esquire PA Supreme Court ID: 72897 Email: prusso @pjrlaw.com 5006 East Trindle Road, Suite 203 Mechanicsburg, PA 17050 Telephone: (717) 591 -1755 Facsimile: (717) 591 -1756 Attorneys for Defendants PR STONEHEDGE SQUARE LP, by And through its General Partner PR Stonehedge Square GP, LLC, Plaintiffs vs. JACK R. GREENAWALT, Jr. and TINA GREENAWALT and MATTHEW D. POPIK and DANIELLE POPIK Defendants Li -I THt, PROTHONOTARY 2014 APR 22 PSI 3: 54. CUMBERLAND COUNTY PENNSYLVANIA : COURT OF COMMON PLEAS : CUMBERLAND COUNTY, PENNSYLVANIA • NO. 14- 212 -CIVIL NOTICE TO DEFEND AND CLAIM RIGHTS YOU HAVE BEEN SUED IN COURT. If you wish to defend against the claims set forth in the following pages, you must take action within twenty (20) days after this Complaint and Notice are served, by entering a written appearance personally or by attorney and filing in writing with the Court your defenses or objections to the claims set forth against you. You are warned that if you fail to do so the case may proceed without you and a judgment may be entered against you by the Court without further notice for any money claimed in the Complaint or for any other claim or relief requested by the Plaintiff. You may lose money or property or other rights important to you. YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER OR CANNOT AFFORD ONE, GO TO OR 'TELEPHONE THE OFFICE SET FORTH BELOW TO FIND OUT WHERE YOU CAN GET LEGAL HELP. CUMBERLAND COUNTY LAWYER REFERRAL SERVICE 32 South Bedford Street Carlisle, PA 17013 (800) 990 -9108 (717) 249 -3166 LAW OFFICES OF PETER J. RUSSO, P.C. Peter J. Russo, Esquire PA Supreme Court ID: 72897 Email: prusso @pjrlaw.com 5006 East Trindle Road, Suite 203 Mechanicsburg, PA 17050 Telephone: (717) 591 -1755 Facsimile: (717) 591 -1756 Attorneys for Defendants PR STONEHEDGE SQUARE LP, by And through its General Partner : COURT OF COMMON PLEAS PR Stonehedge Square GP, LLC, : CUMBERLAND COUNTY, PENNSYLVANIA Plaintiffs vs. JACK R. GREENAWALT, Jr. • and NO. 14-212-CIVIL TINA GREENAWALT and MATTHEW D. POPIK and DANIELLE POPIK Defendants NOTICE TO PLEAD TO: PR STONEHEDGE SQUARE LP, by and through it's General Partner PR STONEHEDGE SQUARE GP, LLC c/o Peter A. Lesser, Esq. Dana S. Plon, Esq. Sirlin Lesser & Benson, P.C. 123 South Broad Street, Suite 2100 Philadelphia, PA 19109 You are hereby notified to file a written response to the enclosed New Matter and Counterclaims within twenty (20) days from service hereof or a judgment may be entered against you. April 21, 2014 espect mitted Law Offices off e . Russo, P.C. Peter J. Russo, Esquire PA Supreme Court ID 72897 5006 E. Trindle Road, Suite 203 Mechanicsburg, PA 17050 LAW OFFICES OF PETER J. RUSSO, P.C. Peter J. Russo, Esquire PA Supreme Court ID: 72897 Email: prusso @pjrlaw.com 5006 East Trindle Road, Suite 203 Mechanicsburg, PA 17050 Telephone: (717) 591 -1755 Facsimile: (717) 591 -1756 Attorneys for Defendants PR STONEHEDGE SQUARE LP, by And through its General Partner : COURT OF COMMON PLEAS PR Stonehedge Square GP, LLC, : CUMBERLAND COUNTY, PENNSYLVANIA Plaintiffs vs. JACK R. GREENAWALT, Jr. and TINA GREENAWALT and MATTHEW D. POPIK and DANIELLE POPIK Defendants NO. 14- 212 -CIVIL DEFENDNANT'S ANSWER TO COMPLAINT AND NEW MATTER and AFFIRMATIVE DEFENSES AND NOW COMES Jack R. Greenawalt, Jr. and Tina Greenawalt ( "Answering Defendants "), by its attorneys, Law Offices of Peter J. Russo, P.C., files its responses to Plaintiff's Complaint and in support thereof, avers as follows: 1. Admitted. 2. Denied. Answering Defendant does not reside at 2570 Waterford, Camp Hill, PA. 3. Denied. Answering Defendant, does not reside at 2570 Waterford, Camp Hill, PA 4. Admitted. 5. Admitted. 6. Admitted. 7. Admitted in part and denied in part. While it is admitted the parties have a written lease, the document speaks for itself, therefore any averments in paragraph 7 ,relating to the terms of the lease are denied. 8. Admitted in part and denied in part. While it is admitted the parties have a written lease which may have had an assignment, the document speaks for itself, therefore any averments in paragraph 8 relating to the terms of the lease or assignment are denied. 9. Admitted in part and denied in part. While it is admitted the parties have a written lease which may have had an assignment, the document speaks for itself, therefore any averments in paragraph 9 relating to the terms of the lease or assignment are denied. 10. Admitted in part and denied in part. While it is admitted the parties have a written lease, the document speaks for itself, therefore any averments in paragraph 10 relating to the terms of the lease are denied. 11. Admitted in part and denied in part. While it is admitted the parties have a written lease which may have had an assignment, the document speaks for itself, therefore any averments in paragraph 11 relating to the terms of the lease or assignment are denied. 12. Admitted in part and denied in part. While it is admitted the parties have a written lease which may have had an assignment, the document speaks for itself, therefore any averments in paragraph 12 relating to the terms of the lease or assignment are denied. 13. Admitted in part and denied in part. While it is admitted the parties have a written lease which may have had an assignment, the document speaks for itself, therefore any averments in paragraph 13 relating to the terms of the lease or assignment are denied. 14. Admitted in part and denied in part. While it is admitted the parties have a written lease, the document speaks for itself, therefore any averments in paragraph 14 relating to the terms of the lease are denied. 15. Admitted in part and denied in part. While it is admitted the parties have a written lease, the document speaks for itself, therefore any averments in paragraph 15 relating to the terms of the lease are denied. By way of further response, the averments in paragraph 15 are conclusions of law to which no response is required. 16. Admitted in part and denied in part. While it is admitted the parties have a written lease, the document speaks for itself, therefore any averments in paragraph 16 relating to the terms of the lease are denied. By way of further response, the averments in paragraph 16 are conclusions of law to which no response is required. 17. Admitted in part and denied in part. While it is admitted the parties have a written lease, the document speaks for itself, therefore any averments in paragraph 17 relating to the terms of the lease are denied. By way of further response, the averments in paragraph 17 are conclusions of law to which no response is required. 18. Admitted in part and denied in part. While it is admitted the parties have a written lease, the document speaks for itself, therefore any averments in paragraph 18 relating to the terms of the lease are denied. By way of further response, the averments in paragraph 18 are conclusions of law to which no response is required. 19. Admitted in part and denied in part. While it is admitted the parties have a written lease, the document speaks for itself, therefore any averments in paragraph 19 relating to the terms of the lease are denied. By way of further response, the averments in paragraph 19 are conclusions of law to which no response is required. 20. Admitted in part and denied in part. While it is admitted the parties have a written lease, the document speaks for itself, therefore any averments in paragraph 20 relating to the terms of the lease are denied. By way of further response, the averments in paragraph 20 are conclusions of law to which no response is required. 21. Admitted in part and denied in part. While it is admitted the parties have a written lease, the document speaks for itself, therefore any averments in paragraph 21 relating to the terms of the lease are denied. By way of further response, the averments in paragraph 21 are conclusions of law to which no response is required. 22. Admitted in part and denied in part. While it is admitted the parties have a written lease, the document speaks for itself, therefore any averments in paragraph 22 relating to the terms of the lease are denied. By way of further response, the averments in paragraph 22 are conclusions of law to which no response is required. NEW MATTER and AFFIRMATIVE DEFENSES 23. Defendant incorporates paragraphs 1 — 22 as thought each was set forth herein in their entirety. 24. Plaintiff has failed to set a claim upon which relief may be granted. 25. The lease which is the subject of Plaintiffs Complaint is voidable. 26. Plaintiff has failed to mitigate its damages, if any. 27. Plaintiffs claim for recoverable damages is contrary to the law of the Commonwealth of Pennsylvania. 28. Plaintiffs claim(s) may be barred by the doctrine of estoppel, waiver and/or laches. 29. Plaintiffs claim(s) may be barred by the doctrine of payment/release. 30. Plaintiffs claim(s) may be barred in whole or in part by the doctrine of economic loss. 31. Plaintiff voluntarily assumed the risk of the facts set forth in his Complaint and accordingly its claim(s) is barred. 32. No conduct of the Answering Defendants or agent of the Answering Defendants resulted in or is the proximate cause of any injury or damage sustained by the Plaintiff. 33. Any injuries and/or damages claimed by the Plaintiff, if proven, were caused by persons other than Answering Defendants and not within the control of Answering Defendants. 34. At all material times hereto Answering Defendants acted reasonably, appropriately and caused no injuries or damage to Plaintiff. 35. Any harm suffered by the Plaintiff arose out of Plaintiffs own non - performance of its essential obligations. 36. At all material times hereto, Answering Defendants' actions were proper and reasonable under the circumstances. 37. Defendants Matthew and Danielle Popik have filed a Chapter 7 Bankruptcy dockets at 1:14:bk- 00881 -MDF in the Middle District of Pennsylvania. 38. Plaintiffs action is in direct violation of the automatic stay as provided by the Bankruptcy Code. 39. Plaintiff failed to give Answering Defendants timely notice of the defaults in payment by Defendants Matthew and Danielle Popik. 40. Plaintiff failed to give Answering Defendants timely notice of the fact that Defendants Matthew and Danielle Popik vacated the leasehold property. Respectfully submitted, OFFICE F-PETE "J. RUSSO, P.C. BY �` �� Peter T. ' usso, Es. I re- - - - PA Supreme Court ID: 72897 5006 East Trindle Road, Suite 203 Mechanicsburg, PA 17050 Telephone: (717) 591 -1755 Facsimile: (717) 591 -1756 Attorneys for Defendants VERIFICATION I, Jack R. Greenawalt, Jr., verify that the statements made in the foregoing document(s) are true and correct. I understand that false statements made herein are subject to the penalties of 18 Pa.C.S. § 4904 relating to unsworn falsification to authorities. Date: Vi VERIFICATION I, Tina Greenawalt, verify that the statements made in the foregoing document(s) are true and correct. I understand that false statements made herein are subject to the penalties of 18 Pa.C.S. § 4904 relating to unsworn falsification to authorities. Date: * /a% /� Tina Greenawalt PR STONEHEDGE SQUARE LP, by And through its General Partner : COURT OF COMMON PLEAS PR Stonehedge Square GP, LLC, : CUMBERLAND COUNTY, PENNSYLVANIA Plaintiffs • vs. JACK R. GREENAWALT, Jr. and TINA GREENAWALT and MATTHEW D. POPIK and DANIELLE POPIK Defendants NO. 14- 212 -CIVIL CERTIFICATE OF SERVICE I, Ashley R. Malcolm, Paralegal, hereby certify that I am on this day serving a copy of the Defendant's Answer to Plaintiff's Complaint and New Matter and Affirmative Defenses upon the person(s) and in the manner indicated below as follows: United States Regular Mail Peter A. Lesser, Esq. Dana S. Plon, Esq. Sirlin Lesser & Benson, P.C. 123 South Broad Street, Suite 2100 Philadelphia, PA 19109 Matthew D. Popik and Danielle Popik 1728 Creek Vista Drive New Cumberland, PA 17070 Date: u - aa-tLt Ashley R. Mal lm, Paralegal Peter A. Lesser, Esquire Dana S. Pion, Esquire dplon@sirlinlaw.com Identification No. 59433/80361 SIRLIN LESSER & BENSON, P.C. 123 South Broad Street, Suite 2100 Philadelphia, PA 19109 (215) 864-9700 FILEC-OFFICE fJ THE PROTHONDIA`M 2514 PR 3.0 PM CUMBERLAND COUNTY PENNSYLVANIA Attorney for Plaintiff PR STONEHEDGE SQUARE LP, by and through: CUMBERLAND COUNTY its General Partner: PR Stonehedge COURT OF COMMON PLEAS Square GP LLC v. No. 14-212 - Civil JACK R. GREENAWALT, JR. and TINA GREENAWALT and MATTHEW D. POPIK and DANIELLE POPIK PLAINTIFF'S REPLY TO NEW MATTER AND AFFIRMATIVE DEFENSES OF DEFENDANTS, JACK R. GREENAWALT AND TINA GREENAWALT 23. Plaintiff incorporates paragraphs 1 through 22 of its Complaint as though fully set forth at length herein. 24. Denied. The allegations contained in this paragraph are conclusions of law to which no response is required. 25. Denied. The allegations contained in this paragraph are conclusions of law to which no response is required. 26. Denied. The allegations contained in this paragraph are conclusions of law to which no response is required. 27. Denied. The allegations contained in this paragraph are conclusions of law to which no response is required. 28. Denied. The allegations contained in this paragraph are conclusions of law to which no response is required. 29. Denied. The allegations contained in this paragraph are conclusions of law to which no response is required. 30. Denied. The allegations contained in this paragraph are conclusions of law to which no response is required. 31. Denied. The allegations contained in this paragraph are conclusions of law to which no response is required. 32. Denied. The allegations contained in this paragraph are conclusions of law to which no response is required. 33. Denied. The allegations contained in this paragraph are conclusions of law to which no response is required. 34. Denied. The allegations contained in this paragraph are conclusions of law to which no response is required. 35. Denied. The allegations contained in this paragraph are conclusions of law to which no response is required. 36. Denied. The allegations contained in this paragraph are conclusions of law to which no response is required. 37. Admitted. 38. Denied. Defendants Greenawalt have not filed for bankruptcy protection and there is no automatic stay against defendants Greenawalt. 39. Denied. Defendants Greenwalt were given all proper notices in accordance with the terms of the Lease. WHEREFORE, plaintiff requests judgment in its favor and against defendants, Jack R. Greenawalt, Jr. and Tina Greenawalt, jointly and severally, as demanded in its Complaint. PLOW Attorney for Plaintiff April 28, 2014 VERIFICATION I, Dana S. Pion, state that I am counsel for plaintiff, and am authorized to make this verification on its behalf. I further state that the statements made in the foregoing Reply to New Matter are true and correct to the best of my knowledge, information and belief. I understand that false statements herein are subject to the penalties of 18 Pa.C.S. §4904 relating to unsworn falsification to authorities. April 28, 2014 Peter A. Lesser, Esquire Dana S. Plon, Esquire dplon@sirlinlaw.com Identification No. 59433/80361 SIRLIN LESSER & BENSON, P.C. 123 South Broad Street, Suite 2100 Philadelphia, PA 19109 (215) 864-9700 PR STONEHEDGE SQUARE LP, by and through: its General Partner: PR Stonehedge Square GP LLC v. JACK R. GREENAWALT, JR. and TINA GREENAWALT and MATTHEW D. POPIK and DANIELLE POPIK Attorney for Plaintiff CUMBERLAND COUNTY COURT OF COMMON PLEAS No. 14-212 - Civil CERTIFICATE OF SERVICE I, Dana S. Plon, do certify that a true and correct copy of plaintiff's Reply to New Matter was served upon the following parties and/or counsel of record by U.S. Mail, postage prepaid, on this 28th day of April 2014 as follows: Peter J. Russo, Esquire Law Offices of Peter J. Russo, P.C. 5006 East Trindle Road, Suite 203 Mechanicsburg, PA 17050 S. P •N Attorney for Plaintiff Peter A. Lesser, Esquire Dana S. Plon, Esquire dplon@sirlinlaw.com Identification No. 59433/80361 SIRLIN LESSER & BENSON, P.C. 123 South Broad Street, Suite 2100 Philadelphia, PA 19109 (215) 864-9700 PR STONEHEDGE SQUARE LP, by and through: its General Partner: PR Stonehedge Square GP LLC v. JACK R. GREENAWALT, JR. and TINA GREENAWALT and MATTHEW D. POPIK and DANIELLE POPIK Jr `~ ? J r is .: ( a JUL I 4111: 57 CUMBERLAND COW, PENNSYLVANIA Attorney for Plaintiff CUMBERLAND COUNTY COURT OF COMMON PLEAS No. 14-212 - Civil PLAINTIFF' S MOTION FOR SUMMARY JUDGMENT AGAINST DEFENDANTS, JACK R. GREENAWALT, JR.. AND TINA GREENAWALT AND NOW, plaintiff moves this Court for Summary Judgment against defendants, Jack R. Greenawalt, Jr. and Tina Greenawalt, in accordance with Pennsylvania Rule of Civil Procedure No. 1035.1 et seq. for the following reasons: 1. There is no genuine issue of material fact requiring any issue to be submitted to a jury and plaintiff is entitled to judgment as a matter of law. 2. On or about January 8, 2014, plaintiff filed a Complaint, a true and correct copy of which is attached hereto, made a part hereof and marked Exhibit "A". 3. On or about April 22, 2014, defendants filed an Answer and New Matter, a true and correct copy of which is attached hereto, made a part hereof and marked Exhibit "B". 4. On or about April 30, 2014, plaintiff replied to the New Matter. A true and correct copy of plaintiff's Reply to New Matter is attached hereto, made a part hereof and marked Exhibit "C". 5. Plaintiff is PR Stonehedge Square LP, a Delaware limited partnership, through its General Partner, PR Stonehedge Square GP LLC, with a business address of 44 South Bayles Avenue, Port Washington, New York. 6. Defendant is Jack R. Greenawalt, Jr., an adult individual, who resides at 2570 Waterford, Camp Hill, Pennsylvania 17011. 7. Defendant is Tina Greenawalt, an adult individual, who resides at 2570 Waterford, Camp Hill, Pennsylvania 17011. 8. Plaintiff is the owner of commercial property known as Stonehedge Square, 950 Walnut Bottom Road, Carlisle, Pennsylvania 17013, as successor to Cedar-Stonehedge LP and Stonehedge Center LLC. 9. On or about April 8, 2004, Stonehedge Center LLC, plaintiff's predecessor, entered into a Shopping Center Lease (hereinafter the "Lease") with Carlisle Coffee Company for approximately 2,000 sq. ft. of commercial space at the premises known as Stonehedge Square, 950 Walnut Bottom Road, Carlisle, Pennsylvania 17013 (hereinafter the "Leased Premises"). A true and correct copy of the Lease is attached to plaintiff's Complaint as Exhibit "A". See Exhibit "A". 10. On or about December 31, 2007, Carlisle Coffee Company assigned its rights, title and interest in, to and under the Lease to Bradley L. Eline and Susan P. Eline. A true and correct of the Assignment and Assumption of Lease and Security Deposit dated December 31, 2007 is attached to plaintiff's Complaint as Exhibit "B". See Exhibit "A". 11. On or about May 8, 2009, Bradley L. Eline and Susan P. Eline assigned their rights, title and interest in, to and under the Lease to defendants, Jack R. Greenawalt, Jr. and Tina Greenawalt d/b/a Carlisle Coffee and Smoothie Cafe (hereinafter collectively referred to as "the Greenawalts"). A true and correct copy of the Assignment and Assumption to Lease and Security Deposit is attached to plaintiff's Complaint as Exhibit "C". See Exhibit "A". 12. On or about June 16, 2009, Cedar-Stonehedge LP, successor to Stonehedge Center LLC, and the Greenawalts entered into a Lease Modification Agreement. A true and correct copy of the Lease Modification Agreement dated June 16, 2009 is attached to plaintiff's Complaint as Exhibit "D". See Exhibit "A". 13. On or about May 16, 2012, the Greenawalts assigned their rights, title and interest in, to and under the Lease to Heckepop, Inc. (hereinafter "Tenant"). A true and correct copy of the Assignment and Assumption of Lease and Security Deposit dated May 16, 2012 is attached to plaintiff's Complaint as Exhibit "E". See Exhibit "A" 14. Plaintiff consented to the Assignment on the condition, among other things, that the Greenawalts shall not be relieved of their obligations under the Lease. A true and correct copy of Consent to Assignment dated May 16, 2012 is attached to plaintiff's Complaint as Exhibit "F". See Exhibit "A". 15. Pursuant to the Lease, Tenant is responsible for the payment of monthly rent in the amount of $3,166.67 plus common area maintenance charges, taxes, management fees and utilities. See Exhibit "A" to Exhibit "A". 16. Tenant defaulted under the terms of the Lease by virtue of its failure to pay rent and proper charges in the amount of $34,235.26 through December 2013. A copy of the accounts receivable ledger is attached to plaintiff's Complaint as Exhibit "H". See Exhibit "A., 17. Pursuant to paragraph 15(b) of the Lease, Tenant is responsible for rent and accelerated rent through the end of the lease term as a result of its default as well as attorneys' fees and costs. See Exhibit "A" to Exhibit "A". 18. Defendants Greenawalt are responsible for all sums due by Tenant under the Lease pursuant to the Lease and the Consent to Assignment. 19. On or about September 27, 2013, plaintiff provided defendants Greenawalt with written notice of default in accordance with the terms of the Lease. A true and correct copy of said letter is attached to plaintiff's Complaint as Exhibit "J". See Exhibit "A". 20. The balance due pursuant to the Lease as of the end of the lease term is $37,006.00 plus additional attorney's fees, interest and costs. 21. All sums paid on account of the Lease, including the security deposit, have been credited to defendants' account. 22. The total amount due from defendants is $71,241.26 representing rent through December 2013 in the amount of $34,235.26 and accelerated rent through the end of the lease term in the amount of $37,006.00 plus attorneys' fees and costs. WHEREFORE, plaintiff moves for summary judgment in its favor and against defendants, Jack R. Greenawalt, Jr. and Tina Greenawalt, in the amount of $71,241.26 plus attorneys' fees and costs. July 16, 2013 . PLON torney for Plaintiff Peter A. Lesser, Esquire Dana S. Plon, Esquire dplon@sirlinlaw.com Identification No. 59433/80361 SIRLIN LESSER & BENSON, P.C. 123 South Broad Street, Suite 2100 Philadelphia, PA 19109 (215) 864-9700 PR STONEHEDGE SQUARE LP, by and through: its General Partner: PR Stonehedge Square GP LLC V. JACK R. GREENAWALT, JR. and TINA GREENAWALT and MATTHEW D. POPIK and DANIELLE POPIK and says: Attorney for Plaintiff CUMBERLAND COUNTY COURT OF COMMON PLEAS No. 14-212 - Civil AFFIDAVIT OF LEO S. ULLMAN IN SUPPORT OF PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT Leo S. Ullman, being duly sworn according to law, deposes 1. I am the sole member of the Managing Partner of PR Stonehedge Square, LP, plaintiff in the above matter. The facts set forth in the foregoing Motion for Summary Judgment and Memorandum of Law in support that Motion are true and correct to the best of my knowledge, information and belief. 2. I have personal knowledge of the matters referred to in plaintiff's Motion for Summary Judgment and Memorandum of Law in support of that Motion and, as set forth below, I make this Affidavit in support of plaintiff's Motion for Summary Judgment. 3. On or about January 8, 2014, plaintiff filed a Complaint. See Exhibit "A". 4. On or about April 22, 2014, defendants filed an Answer and New Matter. See Exhibit "B". 5. On or about April 30, 2014, plaintiff replied to the New Matter. See Exhibit "C". 6. Plaintiff is PR Stonehedge Square LP, a Delaware limited partnership, through its General Partner, PR Stonehedge Square GP LLC, with a business address of 44 South Bayles Avenue, Port Washington, New York. 7. Defendant is Jack R. Greenawalt, Jr., an adult individual, who resides at 2570 Waterford, Camp Hill, Pennsylvania 17011. 8. Defendant is Tina Greenawalt, an adult individual, who resides at 2570 Waterford, Camp Hill, Pennsylvania 17011. 9. Plaintiff is the owner of commercial property known as Stonehedge Square, 950 Walnut Bottom Road, Carlisle, Pennsylvania 17013, as successor to Cedar-Stonehedge LP and Stonehedge Center LLC. 10. On or about April 8, 2004, Stonehedge Center LLC, plaintiff's predecessor, entered into a Shopping Center Lease (hereinafter the "Lease") with Carlisle Coffee Company for approximately 2,000 sq. ft. of commercial space at the premises known as Stonehedge Square, 950 Walnut Bottom Road, Carlisle, Pennsylvania 17013 (hereinafter the "Leased Premises"). A true and correct copy of the Lease is attached to plaintiff's Complaint as Exhibit "A". See Exhibit "A". 11. On or about December 31, 2007, Carlisle Coffee Company assigned its rights, title and interest in, to and under the Lease to Bradley L. Eline and Susan P. Eline. A true and correct of the Assignment and Assumption of Lease and Security Deposit dated December 31, 2007 is attached to plaintiff's Complaint as Exhibit "B". See Exhibit "A". 12. On or about May 8, 2009, Bradley L. Eline and Susan P. Eline assigned their rights, title and interest in, to and under the Lease to defendants, Jack R. Greenawalt, Jr. and Tina Greenawalt d/b/a Carlisle Coffee and Smoothie Cafe (hereinafter collectively referred to as "the Greenawalts"). A true and correct copy of the Assignment and Assumption to Lease and Security Deposit is attached to plaintiff's Complaint as Exhibit "C". See Exhibit "A". 13. On or about June 16, 2009, Cedar-Stonehedge LP, successor to Stonehedge Center LLC, and the Greenawalts entered into a Lease Modification Agreement. A true and correct copy of the Lease Modification Agreement dated June 16, 2009 is attached to plaintiff's Complaint as Exhibit "D". See Exhibit "A". 14. On or about May 16, 2012, the Greenawalts assigned their rights, title and interest in, to and under the Lease to Heckepop, Inc. (hereinafter "Tenant"). A true and correct copy of the Assignment and Assumption of Lease and Security Deposit dated May 16, 2012 is attached to plaintiff's Complaint as Exhibit "E". See Exhibit "A". 15. Plaintiff consented to the Assignment on the condition, among other things, that the Greenawalts shall not be relieved of their obligations under the Lease. A true and correct copy of Consent to Assignment dated May 16, 2012 is attached to plaintiff's Complaint as Exhibit "F". See Exhibit "A". 16. Pursuant to the Lease, Tenant is responsible for the payment of monthly rent in the amount of $3,166.67 plus common area maintenance charges, taxes, management fees and utilities. See Exhibit "A" to Exhibit "A". 17. Tenant defaulted under the terms of the Lease by virtue of its failure to pay rent and proper charges in the amount of $34,235.26 through December 2013. A copy of the accounts receivable ledger is attached to plaintiff's Complaint as Exhibit "H". See Exhibit "A" 18. Pursuant to paragraph 15(b) of the Lease, Tenant is responsible for rent and accelerated rent through the end of the lease term as a result of its default as well as attorneys' fees and costs. See Exhibit "A" to Exhibit "A". 19. Defendants Greenawalt are responsible for all sums due by Tenant under the Lease pursuant to the Lease and the Consent to Assignment. 20. On or about September 27, 2013, plaintiff provided defendants Greenawalt with written notice of default in accordance with the terms of the Lease. A true and correct copy of said letter is attached to plaintiff's Complaint as Exhibit "J". See Exhibit "A". 21. The balance due pursuant to the Lease as of the end of the lease term is $37,006.00 plus additional attorney's fees, interest and costs. 22. All sums paid on account of the Lease, including the security deposit, have been credited to defendants' account. 23. The total amount due from defendants is $71,241.26 representing rent through December 2013 in the amount of $34,235.26 and accelerated rent through the end of the lease term in the amount of $37,006.00 plus attorneys' fees and costs. I hereby verify that all papers or parts thereof attached to this Affidavit are true and correct copies of the original documents. I declare the foregoing to be true and correct. Sworn to and subscribed before me this 97N day °f Notary Public , 2014. qoAter E •f M:"YQir.. No t► Public, Sate of . • -_ Ibrk in *mak A:WV 6 LEO S. ULLMAN IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA PR STONEHEDGE SQUARE LP, by and through Its General Partner: PR Stonehedge Square GP LLC Plaintiff vs JACK R. GREENAWALT, JR., TINA GREENAWALT, MATTHEW D. POPIK and DANIELLE POPIK Defendant 44- ha (ti)� NOTICE TO DEFEND ect,) .74 Cv Com,r- r_. cz ;$ —"1-17) Z:=5c " 4t."" YOU HAVE BEEN SUED IN COURT, IF YOU WISH TO DEFEND AGAINST THE CLAIMS SET FORTH IN THE FOLLOWING PAGES, YOU MUST TAKE ACTION WITHIN TWENTY (20) DAYS AFTER THIS COMPLAINT AND NOTICE ARE SERVED, BY ENTERING A WRITTEN APPEARANCE PERSONALLY OR BY AN ATTORNEY AND FILING IN WRITING WITH THE COURT YOUR DEFENSES OR OBJECTIONS TO THE CLAIMS SET FORTH AGAINST YOU. YOU ARE WARNED THAT IF YOU FAIL TO DO SO THE CASE MAY PROCEED WITHOUT YOU AND A JUDGMENT MAY BE ENTERED AGAINST YOU BY THE COURT WITHOUT FURTHER NOTICE FOR ANY MONEY CLAIMED IN THE COMPLAINT OR FOR ANY OTHER CLAIM OR RELIEF REQUESTED BY THE PLAINTIFF. YOU MAY LOSE MONEY OR PROPERTY OR OTHER RIGHTS IMPORTANT TO YOU. YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW. THIS OFFICE CAN PROVIDE YOU WITH HIRING A LAWYER. IF YOU CANNOT AFFORD TO HIRE A LAWYER, THIS OFFICE MAY BE ABLE TO PROVIDE YOU WITH INFORMATION ABOUT AGENCIES THAT MAY OFFER LEGAL SERVICES TO ELIGIBLE PERSONS AT A REDUECED FEE OR NO FEE. CUMBERLAND COUNTY BAR ASSOCIATION 32 SOUTH BEDFORD STREET CARLISLE, PA 17013 1-800-990-9108 717-249-3166 Peter A. Lesser, Esquire Dana S. Plon, Esquire dplon@sirlinlaw.com .Identification No. 59433/80361 SIRLIN LESSER & BENSON, P.C. 123 South Broad Street, Suite 2100 Philadelphia, PA 19109 (215) 864-9700 PR STONEHEDGE SQUARE LP, by and through: its General Partner: PR Stonehedge Square GP LLC 44 South Bayles Avenue Port Washington, NY 11050 JACK R. GREENAWALT, JR. 2570 Waterford Camp Hill, PA 17011 and TINA GREENAWALT 2570 Waterford Camp Hill, PA 17011 and MATTHEW D. POPIK 1728 Creek Vista Drive New Cumberland, PA 17070 and DANIELLE POPIK 1728 Creek Vista Drive New Cumberland, PA 17070 Attorney for Plaintiff CUMBERLAND COUNTY COURT OF COMMON PLEAS CIVIL ACTION - COMPLAINT AND NOW COMES plaintiff, PR Stonehedge Square LP, by and through its General Partner: PR Stonehedge Square GP LLC, by and through its attorneys, Sirlin Lesser & Benson, P.C.., and avers as follows: 1. Plaintiff is PR Stonehedge Square LP, a Delaware limited partnership, through its General Partner, PR Stonehedge Square GP LLC, with a business address of 44 South Bayles Avenue, Port Washington, New York. 2. Defendant is Jack Q. Greenawalt, Jr., an adult individual, who resides at 2570 Waterford, Camp Hill, Pennsylvania 17011. 3. Defendant is Tina Greenawalt, an adult individual, who resides at 2570 Waterford, Camp Hill, Pennsylvania I70II. 4. Defendant is Matthew D. Popik, an adult individual, who resides at 1728 Creek Vista Drive, New Cumberland, Pennsylvania 17070. 5. Defendant is Danielle Popik, an adult individual, who resides at 1728 Creek Vista Drive, New Cumberland, Pennsylvania 17070. 6. Plaintiff is the owner of commercial property known as ,�___`_�__ 950 Walnut Bottom Pennsylvania Stonehedge Square, Road, Carlisle, 17013, as successor to Cedar-Stonehedge LP and Stonehedge Center LLC, 7. On or about April 8, 2004, Stonehedge Center LLC, plaintiff's predecessor, entered into a Shopping Center Lease (hereinafter the "Lease") with Carlisle Coffee Company for approximately 2,000 sq. ft. of commercial space at the premises known as Stonehedge Square, 950 Walnut Bottom Road, Carlisle, Pennsylvania 17013 (hereinafter the "Leased Premises"). A true and correct copy of the Lease is attached hereto, made a part hereof and marked Exhibit "Aff- 8. On or about December 31, 2007, Carlisle Coffee Company assigned its rights, title and interest in, to and under the Lease to Bradley L. Eline and Susan P. Bline. A true and correct of the 31, 2007 is attached hereto, made a part hereof and marked Exhibit 9. On or about May 8, 2009, Bradley L. Eline and Susan P. Eline assigned their rights, title and interest in, to and under the Lease to defendants, Jack R. Greenawalt, Jr. and Tina Greenawalt d/b/a Carlisle Coffee and Smoothie Cafe (hereinafter collectively referred to as "the Greenawalts"). A true and correct copy of the Assignment and Assumption to Lease and Security Deposit is attached hereto, made a part hereof and marked Exhibit "C". 10. On or about June 16, 2009, Cedar-Stonehedge LP, successor to Stonehedge Center LLC, and the Greenawalts entered into a Lease Modification Agreement. A true and correct copy of the Lease Modification Agreement dated June 16, 2009 is attached hereto, made a part hereof and marked Exhibit "D". 11. On or about May 16, 2012, the Greenawalts assigned their rights, title and interest in, to and under the Lease to Heckepop, Inc. (hereinafter "Tenant"). A true and correct copy of the Assignment and Assumption of Lease and Security Deposit dated May 16, 2012 is attached hereto, made a part hereof and marked Exhibit "E". 12. Plaintiff consented to the Assignment on the condition, among other things, that the Greenawalts shall not be relieved of their obligations under the Lease. A true and correct copy of Consent to Assignment dated May 16, 2012 is attached hereto, made a part hereof and marked Exhibit "F". 13. On or about May 16, 2012, defendants, Matthew D. Popik and Danielle Popik (hereinafter collectively referred to as 4 • "Guarantors"), guaranteed the obligations of Tenant under the Lease. A true and correct copy of the Lease Guaranty dated May 16, 2012 is attached hereto, made a part hereof and marked Exhibit "G". 14. Pursuant to the Lease, Tenant is responsible for the payment of monthly rent in the amount of $3,166.67 plus common area maintenance charges, taxes, management fees and utilities. See Exhibits "A". 15. Tenant is in default of the terms of the Lease by virtue of its failure to pay rent and proper charges in the amount of $34,235.26 through December 2013. A copy of the accounts receivable ledger is attached hereto as Exhibit "H" and made a part hereof. 16. In addition, Tenant is in default for vacating the Leased Premises prematurely prior to the end of the lease term. 17. Pursuant to paragraph 15(b) of the Lease, Tenant is responsible for rent and accelerated rent through the end of the lease term as a result of its default as well as attorneys' fees and costs. See Exhibit "A". 18. By letter dated September 4, 2013, plaintiff provided Tenant and Guarantors with a written notice of default in accordance with the terms of the Lease. A true and correct copy of said letter is attached hereto, marked as Exhibit "I" and made a part hereof. 19. On or about September 27, 2013, plaintiff provided the Greenawalts with written notice of default in accordance with the terms of the Lease. A true and correct copy of said letter is attached hereto, made a part hereof and marked Exhibit "J". 20. Despite demand, Guarantors and the Greenawalts have refused and continue to refuse to cure the monetary default. 21. The balance due pursuant to the Lease as of the end of the lease term is $37,006'00 plus additional attorney's fees, interest and costs. 22. All sums paid by Tenant including the security deposit have been credited to Tenant's account. WHEREFORE, plaintiff demands judgment in its favor and against defendants, Jack B. Greenawalt, Jr., Tina Greenawalt, Matthew D. Popik and Danielle Popik, jointly and severally, in the amount of ¢71,24I.26 plus interest, attorneys' fees and costs. L SER S. PLON Attorneys for Plaintiff January 6, 2014 VERIFICATION 1, Ullnav4 , being duly sworn accordingto law, panTNe depose and say that I am the 501e ticilteR 6f* kADND of PR Stonehedge Square LP, plaintiff in this action, and hereby verify that the statements set forth in the foregoing Complaint are true and correct to the best of my knowledge, information, and belief. I understand that the statements in the foregoing Complaint - Civil Action are made subject to the penalties of 18 Pa. CSA Section 4904 relating to unsworn falsification to authorities. Date: lq EXHIBIT"A" REVISED5/10/04 SHOPPING CENTER LEASE This lease ("Lease"), dated as of April 8, 2004, by and between STONEHEDGE CENTER LLC ("Landlord") and CARLISLE COFFEE COMPANY, INC. ("Tenant"); WITNESSETH: WHEREAS, Landlord and Tenant wish to enter into this Lease on the terms and conditions hereinafter set forth; NOW, THEREFORE, In consideration of the foregoing, and the mutual covenants and agreements contained In this Lease, Landlord and Tenant hereby agree as follows: Tenant hereby leases the Leased Premises (as hereinafter defined) from Landlord and Landlord hereby teases the Leased Premises to Tenant upon, and subject to, the terms and conditions hereinafter set forth in this Lease. 1. Basic Lease Provisions and Definitions. in addition to other terms defined In this Lease, the following terms whenever used in this Lease with the first letter of each word capitalized shall have only the meanings set forth in this Article, unless such meanings are expressly modified, limited or expanded elsewhere herein. (A) Shoopinn Center Location: (B) Leased Premises: (C) Floor Area: (D) Lease Commencement Date: (E) Rent Commencement Date: (F) Lease Term: (G) Expiration Date: (0-1) Additional Term: Depicted on Exhibit "A", located In Stonehedge Square, Carlisle, pg Site No.: SPAC1075f The premises identified as Plot 31 shown hatched on Exhibit "A" (see Article 2). 2000 square feet (see Article 2). 9413te-that-ttiis- ase c4ti ed by nd)ei Coit -' anent (see Article 2). 4/a l /�yaw 120 days after the Lease Commencement Date (see Article 2). Commencing on the Lease Commencement Date and ending at 12 noon on the Expiration Date (see Article 2). The last day of the calendar month in which occurs the 3rd -51 r anniversary of the day immediately preceding the Rent Commencement Date (see Article 2). One, throc (3)flve (5) year option: See Rider 93' Article 34. (H) Base Rent Schedule — Original Term (see Article 3): LEASE YEAR 1 2 3 4 5 ANNUAL BASE RENT $27,000.00 $27,810.00 $28,644.30 $29,500.00 $30.385.00 MONTHLY INSTALLMENT $2,250.00 $2,317.50 $2,387.03 $2,458.33 X2.532.08 C:\sea\client\TEMP\Carlisle Coffee Company 1-4DJG9 Proj ID SPAC1075.doc KE 5/10/2004 (H)(I) Base Rent 7 Additional Term (see Articles 3 & 34): LEASE YEAR 2 3 4 ANNUAL BASE RENT $28;590:00 $31,296.55 $30385,96 $32,235.45 $347296-55 $33,202.51 $34,198 59 $35.224 54 MONTHLY INSTALLMENT $2,158.33 $2,608.04 $2,532-98 $2.686.29 $2,698.94 $2,766.88 $2,849.88 $2,935.38 a (I) Tax Rent: As provided in Article 5(B). (J) Common Area Rent: As provided In Article 6(D). (K) Percentage Rent Rate: N/A (L) Security Deposit: $5,646.68 (see Article 6). . (M) Permitted Use: Tice rdteli Sale• of prepared ;gourmet'coffee products (spedat'blends, lalte, cappuccino, mocha, In pec t o etc.);. end ready -to -eat high end Individual breakfast and lunch sandwiches soups pastries, desserts, beverages, cheopteles ;candles and It e,cream products In an: upScaleegvironment, • (M-1) Exclusive Use: Landlord surgesthat durinu the term of ibis Lease. but:onh'/cr.'so teng'as Tenant is open forbuslnees;..usino the L¢.a5ed. Premises far -the gxclusive Use .(es herefnafler defined) rind le not otherwise In :default.of -any oI The • tirovislons 61,th1s d.ease. Landlord Wilt hot hereafter, enter Info a new, lease In tho Shopoina Center with a tenant whose principal permitted use isalie retell .sale .of branded"gourmet coffeelthr`, "EkeltJsfve_t.Js61.. Tho aidiernen'tlened restrIctipn eh 11 not.epply 10: D)anv existing tenants et:the:B.11o1iplr1g Center or their.SUccessors; aastglle Or] tp!pCernents::or (now eXlatinp leasesatthe Shopptrld Center as earl*movbe.fenewed,extendedi r©odlfed br amended `text eel 11iat no:suChrrnodlficatlon shall greltt'a tenant! le-rleht te!engage :in lite Eiscluslve; Uce Where:.suoh tenant.dld:.net oreviousltr.have that ririhtt: `Jill),anv"stere'rneasurinu:10;000"ea:ft: or more: (N) Landlord's Notice Address: See Article 29 (0) Tenant's Notice Address: (0-1) Tenants Bank Account: See Article 3(A) (P) Broker(s): 3333 NEW HYDE PARK ROAD SUITE 100 P.O. BOX 5020 NEW HYDE PARK, NEW YORK 11042-0020 CARLISLE COFFEE COMPANY, INC. 17 EAST EPPLEY DR. CARLISLE, PA 17013 Name of Bank : Account Name: Account Number : Routing Number : ..BankAddress; BENNETT WILLIAMS REALTY, INC. 135 N. GEORGE ST., 4TH FLOOR YORK, PA 17401 ATTN: GARY RUSSELL 2 C:\sea\client\TEMP\Carlisle Coffee Company 1-41)109 Proj ID SPAC1075.doc ICE 5/13/2004 FOR INFORMATION ONLY Tenant% Telephone- 0,*. Tenaries Fax 'Tenant's Email Address.: Tenant's Business Name: CARLISLE COFFEE COMPANY Tenant's Contact Person: Guarantor(s): MARY GRACE ANDERS 17 E. EPPLEY DR. CARLISLE, PA 17013 PATRICK S. ANDERS 17 E. EPPLEY DR. CARLISLE, PA 17013 The following riders and exhibit(s) are hereby Incorporated Into this Lease and made a part of this Lease for at purposes: Riders: Rider "A" General Lease Provisions (set forth In Articles 2 through 29). Hider "13" Specific Lease Provisions (beginning with Article 30). Exhibit(s): Exhibit '1"— Authorization Agreement for Direct Debit Exhibit "A"— Site Plan Exhibit "S"— Intentionally Omitted Exhibit "13-1" — Contractor's Indemnity Agreement IN WITNESS WHEREOF, the parties hereto have executed this Lease under their respective hands and seals as of the day end year first above written. WITNESSES TO LANDLORD: WITNESSES TO TENANT: LANDLORD: STONEHEDGE CENTER LLC Ar By: MART Limited Partnership. Sole Memhn, By: Kim East Real Estate Investment Trust, Gen Print Name: Title: Date Signed: TENANT: CARLISI P CMEE COMPANY, 'flijBy: 7C1/41 -40x. 4.4-414141 T1-4- epttlf fr1A (orpi Print Name: to Andier-5 Title: FrlAir.k47-1- Date Signed: 0.41,611 Fed Tax ID #i 4.0 - ,4,3 3 C:\sea \client\TEMP \Carlisle Coffee Company 1-4D.M9 Proj ID SPAC1075.doe KE 5/10/2004 FOR TENANT (CORPORATION) : State of ?0, )ss.: County of CLueibt&Ad ) On the g day of AtAP In the year 2004 before me, the undersigned, a Notary Public in and for sald State, personally appeared c(NO„A4 Cir xe (NAIAD personally known to me to be the individual whose name Is subscribed to the within Instrumeint and acknowledged to me that he/she executed the same In his capacity, and that by his/her signature on the instrument, the individual or the person upon behalf of which the Individual acted, executed the instrument. 140:Act1oxif.m. Xiii4j..10111)111rilt liqbny Public ffP,tokiati of Catpilpit ulubitiund Co ,piv My **111100XPIrott Aug, t 2007 4 CAseMelient\TEMP \Carlisle Coffee Company 1-4DJG9 Proj ID SPAC1075.doe KE 5/10/2004 1RIDER A 2 3 4 5 THIS RIDER A IS ATTACHED TO AND HEREBY MADE A PART OF THE LEASE (SEE ALSO RIDER B). '6 2. Leased Premises. Term and Lease Year, The Leased Premises is deemed to contain an amount of 7 square feet of space equal to the Floor Area. The Lease Term shall commence on the Lease Commencement Date. 8 Tenant's duty to pay Rent shall continence on the Rent Commencement Date. Notwithstanding the foregoing, 9 Tenant shell pay theilrst month's installment of Rent on the execution hereof, which amount shall be applied as 10 a credit:egainst such first monthly installment as and: when due (and promptly refunded if, for any reason other 11 than Tenant's default, this Lease should be terminated by reason of non-occurrence of the Lease Commencement 12 Date). The Lease Term shall expire without notice on the Expiration Date. On request, Tenant Shall promptly 13 deliver to Landlord a statement in tecordable form specifying the Rent Commencement Date andthe llxpiration` 14 .Date: The first Lease Year shall Commence on the Rent Commencement Date and end on the fust day of the 15 calendarmonth in which occurs the first anniversary of the day immediately preceding the Rent Commencement 16 Date. Each succeeding Lease Year shall be each successive twelve (12) month period. 17 18 3. IA) . .Base: Rent. 'Tenant shall pay Base Rent at the annual ratesspecified in the 'Base Rent 19 Schedules in monthly installments paid in advance on the first day of each ealandar .month in the amount 20 specified in the Base Rent Schedule, If the Rent Commencement Date is not the first of the month, the Base Rent 21 for that month shall. he prorated. Should any Lease • Year contain moreless than twelve (lel months, Base. 22 Rent and other charges for such Lease; Year shall be. Appropriately pri ated. In addition, Tenant :shall. pay. 23 Landlord as additional rent: each month throughout Lease Term including. renewal :teerms, on thesame date that 24 monthly' payments of Base Rent is due, an amount equal:. to four (4%) percent of the Base Rent that is payable for 25 that month, as a Management fee to; Landlord. All other payments to be made by Tenant pursuant to this Lease 26 are in addition to Baum Runt:. 'Tenant shall pay Base Rent and other Rent; to Landlord orits designated agent at. 27 the address Landlord dealgnatea without Landlord making any demand. }lowever: Tenant hereby enthoriscs 28 Landlord to det2it Tenant's. Baehr Account as opt_ forth in _Article 110-11 above on the first &v of each month. in 29 ;.vs,.eit 1 ::s : •r d Ar+� z i z +ar3e -t en ,;r =r .ma£nta£,i: f1 30 Tenants Bank Account as air times during ,the Incase Term to enable. Landlord to debit such aceoun w 31 monthly Rent then Ana; thei{aitutc.of which shall constitute a default fpr thefailure to pay Rent. "Simultaneoud y` 32 with .Tenant's engen: offtltis _:lase. Tenant shall complete_ and submittql andlor.S1 the ::authorl cion fpjip 33 Attached hereto as Exhibit `I' together with a, voidpdshecll from T ant's Hanle Account, The obligation to pay 34 Base Rent and other Rent is an•independent, unconditional covenant. 35 36 (0) p4ditional Rent. Base Rent and all other payments required to be made by Tenant 37 (including, but not limited to, Pei' rttage Tax Rent and Common Area Rent) shall be deemed to be and are 38 included in the term "Rent°, which shall be due and payable on demand or together with the next installment of 39 Base Rent, whichever first occurs, unless another time is expressly provided for payment. Landlord shall have the 40 same rights and remedies for non-payment of any Rent or any Security Deposit as for a non-payment of Base 41 Rent. Tenant shall pay to Landlord any tax or license fee measured by Tenant's Rents receivable by Landlord; 42 these taxes shall be paid by Tenant each month with monthly payments of Rent. 43 44 (C) Late Rent. Any Rent or Security Deposit not paid when due shall bear interest on the payable 45 amount from the date when due until paid at the Default Interest Rate (see Article 24(B)); in addition, Tenant 46 shall pay Landlord a. Fifty ($50.00) Dollar late charge for each overdue payment. 47 48 (8) Notwithstanding any alleged defense, counterclaim or offset against Rent, Tenant shall 49 continue to pay Landlord all Rent faithhilly when due, including during the continuance of any dispute or legal 50 action, subject to reimbursement if directed by the Court. Tenant hereby consents to the entry in any court 51 action of an order requiring Tenant to make Rent payments during the pendency of the lawsuit. All Rent due to 52 Landlord under this Lease shall, unless and to the extent expressly otherwise provided herein, be due and 53 payable without any notice, demand, offset, credit, deduction or abatement. 54 55 56 57 58 59 60 (B)--GRii3&f3-8AL i4ias ales ttt3et a ate aggrsgate-ot-the-prices-charged-fer-all>ta ecclti sse 61 and-sesi a Ps Q iffier-oeigirtatetl-at 62 63 win - . ld-or-leased-ort credit -ate paid-hy reheclt 6tirter-or sFltcfivi ar;yla :: : > , elsewhetis; 4. Percentage Rent, it'el i tidier d cha11 be 64 he t le oe ertna 6678 iaeulbtas:xegigteitxtiiiya-# frataets aie-viati€liporter ler inial -Lege-ratitn-d-t-i-ireefrode- eiss-estot 4ite-a-ritreit-esruoert-Oomeasra-a-feab-r-eerceidaturnirsem 66 meehatiieeidevisng-saohiae4rdepos(ta-isted-iseusdaie-an -aRiiYeW n - eeiaetedf-prea1of 69 criers trtrtslies-aald-at-th ot-for-r-etirrri sf etrereiiattdlAe sold 3t Any o<lierst9re b5 eatrilog a4 • •: -wa tsro nevietslyrp--i neleded-n 7710 eaer-the isteearge geelfle ly-,antl-sepeeately-meettet-€o-ewatsmess-aai-pa-1€1-y 72 ca1elosej�hatie=shaltret=bet y-dettetian4fern-t l'� n Slaby reade•ef4enantto.being 7734 grass-elipsgracer-tsai7P.it au1F{ta sr lreefrte rte pt s-rihnrfed-for a a}e a n fo :hire 75 be-inalusiecl,-in-Groes e--laysitg-away a f-ar teha 34iee-fore dti t eatamo,ts en t1ip 76 renderiete of the seta+iee: Tenanttclttl tsar' tYte €iglt=s iti< eine-ef-toad-eagle a-.for-ani#-debtee r -fel -granting 77 credit. 78 5 C:\sea\client\TEMP\Carlisle Coffee Company 1-40109 Proj ID SPAC1075.doc KE 5/10/2004 1 f Pnvmaut-of-kereektat*Rang-he.Aee nge-Reot-pays le -tar e#teat }sa• Y �; ,)till i x 2 rte n-o14Se"to The predttet-af-the peieen4ege-hent•-brute-inultinli e utrtettt3t•-by.4 eh. Gress Salee-realised 3 during-tkitt l:eatr Year setiede Etre Cross Salus a far thr& Leat star. The 4iroas-Saler ase shitll-bcedtti ed 4prrpartiana€eiy7fOrrm Lease•,Year•hirli4o-ieo-blast-twolae-14-2}-ealenilar,roonl}ts-arinabioh-ihr(aggraga l3sse 5 R. mid in tlmt-laeee-1' -i< •.: uel-aritount-sneti#ierl itt re•gent-solieritiie4rla*t4or-t*in. 6 Aftiala.44..10,Terasnt-shtimoammexta pay Feracttta ett# lttring-aaeli-,Lease• eztw 441w•fif ntls-(15il+da544 7 thetamonth-whiahammediata:iy afarlarva-t nsi}th4u-whisk lteaal.Sales spieeediAla ap;o-Selea, ase Theretiaez; 8 far seal14,4: �neding-tnonth4e.tneirtitit-�it,thtat i=a�te�fc+ar,-baaut}-ori-otltiitii�itul-Araso-,'3ale t larfil-pay4n 9 addition to 8tevaerttltly-Bass• Rerit}tithe-adtiitkkitd-Peroet tage-Rex*ahier. cit -the sna:tutte,ae Tenant -.furnishes easlt-tueattltly ties ales-e##tteen+enk--4Tti-reeuiptaliywtuitiliarei of iwrtt'd-it atita6-4iross 'Sc les-apztement,: t#tere i h311 344int in de, 'if w a teaur•..-o ljtietment iretweeiard aiaoliartl a id4etiontr-wltb-•lyayment-too or rs} ayment• Srdl -k4lhc caeeairsy-regt}imreo-that-Tatterlt hall-ffaj-tlte-ejrt4et-e eunz•itf.Pereeatitge-t?ent: lue-Ptni4.Leaers ,Year= -shall -lam eepiarataaiiar pttfaden far 6rees,Salea- ind-Percentage-Rent-ter-thar-year,-eAd kai Sttleo aC ori ,hews t -date ereon all, leafs- sabearit3&naGressSoleo ctf-ony ti3a I,Qaa4-Y t 10 11 12 14 13: 15 16 17 18' 19 20 21 22 23 24 25.. 26ofaoeer•astti-invetitot3r 27 28 29. 30 35231.. 35 36 37 38. 39 40 41. 5. Taxes. 42. ( slt Atatem.onts-, Deft ihe• eentle-{ thl-trey after-tlie-sad-afaeSeb-nalandea-month rt.. s- salsa tar-tftatamanil-in+adt1ttiorkr efere t}+e 13itll iurriiat# Itastdleid-err-atxtttal-atimulatiyu araSalea-foi:•ttiat Lease-Yeaa,-tinti-Ot4be read se,Yetis-eavered-lay-the-onautil neipat-exesutive effie;era- eaant.eliali, a .:: _ . • ;tete-books tend-reeerde-of=all arise-with-generellarasaePteil•-pr rAPies-of-reta4 same tax.mtu paled © r-depeslt-abpe lee-aGperSalea state 14 0 starei#lt*.23i--lt�leA l 3d Hftl-8tat8R18tit h .. 00ass-Stilet-txttitin` stomaiceatt eheein r -e ntentdrearaputer al elaaasbaregistett-tepee,--Laudiar4.or Its ugento-ra y* audit sll hall-keep-•1ntas--hu=ott=kat eglit-(4:8}.iniintlttaaker=#ite' e-an-aiituisSien of ills-earreatneoa of #y t -bar -ba lardainset-eeallacting-at. any:time-lite-Peroetttage-Heist' meat -et -mere of the trite additiOnal-Peteentetge-Rent•-drops-the- ;^ipeasea-ef B slsldi far er entage` nt based-sst-euamistitlon 3 g€t} a> %ptutest suede witiiln-ninety-{AA}daye stet alit ' rise-nottce•af-tlse POiri ?ti4o4ta44gu =d-44! n are te-etatc�pay*ment-tan iti-writing-ett-t3 e•s a .. sill e-a-waiver-of_elaim-he-burl e on `enact; il_Ieridiertl-sebadulea'-tai eras-4.tpanie4o-eoadn i a Atte ttr-Tenon s 1 feeardo-sr-fallu reeg the app ditionalrReat-ttse• rn i merit 4.0e0-00+140tp0060041W41e0e44041e al aran4reld-at0-ister-di e 43 (A) 'Taxes" shall mean and include: real estate taxes; special and general assessments; water and 44 sewer rents and charges including connection or hookup charges; governmental license and permit fees; charges 45 fdr public or private easements benefiting the Shopping 'Center; taxes on' other areas made available for the common use or benefit of tenants; and all other governmental impositions and charges (extraordinary as well as 47 ordinary, foreseen and unforeseen) which are either a lien on the Shopping Center or which are charged, levied or 48 assessed on, or imposed in connectionwith, the use, occupancy or possession of the Shopping Center, and/or 49 which appear as a charge on a tax bill given to Landlord by any official taxing authority; and also: taxes, license 50 fees or other charges, measured by the rents receivable by Landlord from the Shopping Center; occupancy taxes, Si rent taxes or similar taxes; interest on Tax installment payments; and costs, expenses and fees (including 52 attorneys' and other experts' fees) incurred by Landlord in contesting and/or negotiating Taxes with the public 53- authorities (regardless of the outcome). If any method of taxation prevailing on the date of this Lease is altered, so 54 as a substitute for the whole or any part of real estate taxes there is levied or assessed a different kind of tax, the 55. different tax shall be deemed included in "Taxes". However, "Taxes" shell not include any inheritance, estate, 56 succession, transfer, gift, franchise or corporation tax, or any net income tax, profit tax or capital tax imposed on 57 Landlord. A copy of an official tax bill with respect to a governmental tax or assessment shall be conclusive 58 evidence of the amount of a Tax. If the Leased Premises is located in Indiana, Ohio, Illinois or other jurisdiction 59; wherein taxes are billed or are payable in arrears after they have accrued or become a lien, then the taxes that are 60 payable or become a lien during the calendar year m which the Lease Term is in effect shall be included in the 61 definition of "Taxes" shared in or payable by Tenant according to the provisions of this Article even though the 62'; payment thereof relates to a fiscal tax period in whole or in part occurring prior to the commencement of or after 63 the end of the Lease Term. 64. 65' (8) Tax Rent, As additional Rent for each year of this Lease (herein called 'Tax Rent"), Tenant shall pay to Landlord, in the manner hereinafter described, the product obtained by multiplying the aggregate amount of all Taxes payable by Landlord for the then -current calendar year (or other fiscal or accounting year 68 selected by Landlord) by a fraction ("Tenant's Fraction"), the numerator of which is the Floor Area of the Leased 69 Premises, and the denominator of which is the total square foot ground floor area which is leasable for space (on 70 the first day of the month in question) inside all the buildings of the Shopping Center. Notwithstanding the 71 foregoing, at Landlord's option Tenant's Fraction may be appropriately adjusted with regard to Tax Rent and/or 72 Common Arca Rent to exclude from the denominator thereof any land and/or building(s).in the Shopping Center 73 leased to or occupied by third parties with separate tax iota or pa els::fot' which they directly or indireetly pay 74 taxes and/or who are responsible for maintenance of portions of the Common provided that in such event. 75 the Taxes or Common Area expenses paid by such thirdparties gnarl also be excluded in the computation of 76 Taxes and/or Yearly Common Area Costs. On the first day of eadh month in advance, Tenant shill pay; to 77 Landlord one -twelfth (1/12th) of Tenant's annual share of Tax Rent, based on Landlord's estimates. If after the 78 end of a calendar year (or other accounting period used by Landlord) the total of the monthly payments by Tenant 79 for the year has exceeded or is less than the annual Tax Rent actually due, then an adjustment shall be made 80 with appropriate payments to or repayment by Landlord. If the amount of any Taxes payable during the current 6 C:\sea\clicnt\TEMP\Carlisle Coffee Company 1-4DJG9 Proj ID SPAC1075,doc KE 5/10/2004 66 67 1 year shall not yet have been billed by the taxing authority, the monthly Tax Rent then payable shall be based on 2 the amount of the corresponding Taxes for the immediately preceding Tax year, subject to immediate adjustment 3i. (and payment of the adjusted amount by Tenant) when such Taxes are billed or determined. 4 5 (C) Other Taxes. In addition to Tax Rent, Tenant shall pay in the entirety: all taxes attributable 6 to its signs, personal property and leasehold interests; all taxes allocable or attributable to any improvements 7 made by Tenant to the Leased Premises; all occupancy taxes or other taxes on its right to occupy the Leased 8 Premises; all taxes on its Rent (including sales taxes on rents if the Leased Premises is in Florida or in any other 9 jurisdiction imposing a tax on rents); and other taxes imposed on•tenants generally. 10: 11 6. Security Deposit. On Tenant's execution of this Lease, Tenant shall pay the Security Deposit as 12 security for the payment of Rent and Tenant's performance and observance of this Lease. If Tenant defaults 13 under this Lease, or defaults under any other lease or agreement between Tenant end Landlord or an affiliate of 14 Landlord, Landlord may, without prejudice to any other available remedy, apply the Security Deposit towards 15 outing the default and compensating Landlord for loss or damage arising; from the default, At the. expiretion of 16 this .lease, if Tenant la not in default or otherwise liable to Landlord, the unapplied balance of. the Security 17 Depo i1t;Shall be: returned to, Tenant. Tenant expressly agrees that Tenant shall have no right toapplyy any portion 18` of the Security Deposit against Shy of Tenant's obligations to pay any Rent hereunder and, if Tenant shall seek to 19 so apply such Security Deposit; Tenant shall on demand pay liquidated damages to Landlord in a sum equal to 20 two (2) times the amount of any such unpaid Rent if at any time Landlord applies part or all of the Security 21 Deposit, Tenant shall, pay to Landlord tato amount so applied, thereby increasing the amount of the Security 22 Deposit, so Landlord shall have on hand the full original Security Deposit at all times. If Landlord transfers this 23 Lease and Security Deposit to a transferee; the transferor shall be released from liability with respect to the 24 Security Deposit or its return to Tenant; Tenant shall look only to such transferee with respect thereto. Tenant 25 shall not mortgage, assign (except in connection with an assignment of this Lease by Tenant which is otherwise 26expressly permitted by the terms of this Lease) or encumber its interest in the Security Deposit, and any attempt 27 ' to do so shall be void. On any transfer by Tenant of its interest in this Lease, the Security Deposit shall be 28' deemed transferred to the assignee. In case of Tenant's bankruptcy, reorganization or other similar proceeding, 29. the Security Deposit shall be deemed applied first to payment of unpaid Rent for periods prior to institution of the 30 proceedings. 31 32 7. Constenetfont Condition of Premleest-Ownership of Installations. If Tenant enters the Leased 33' Premises before the Lease Commencement Date (but Tenant shall have no such right except as may be expressly 34: provided herein or with Landlord's prior written consent), Tenant shall pay for all utilities used by it and defend, 335 Indemnify and hold Landlord harmless from all liability which arises out of Tenant's possession, use or occupancy 36 during that period, and provide Landlord with the insurance referred to in Article 11(B), and the indemnity in 37 Article 11(A) shall apply and all other provisions of this Lease shall apply except (unless otherwise stated herein) 38 the obligation to pay Rent. Promptly following the Lease Commencement Date, Tenant shall (subject to the 39 provisions of Article 10(E) and all other relevant provisions of this Lease) fixture and do all other work, including 40 installation of an attractive exterior lighted sign above its entrance (see Article 10 (D)), in order to prepare the 41 Leased Premises for business operation, and complete its work, fully staff and stock its store, and open for 42 business promptly. Prior to operating its business, Tenant shall obtain a permanent certificate of occupancy (or 43 . local equivalent) for the Leased Premises from the local government agency having jurisdiction, and obtain final 44' lien waivers for all work performed by or on behalf of Tenant and forward copies to Landlord. Tenant shall, at its 45: sole expense, in doing any work, Making any installations, or in using, occupying or conducting business at the 46 Leased Premises, comply with all present and future laws, regulations, building codes and/or fire codes applicable 47 to the Leased Premises or to Tenant's use or occupancy or business operations, including those that relate to 48 installation, maintenance, upgrading, repair or replacement of sprinkler systems, and Tenant shall defend, 49 indemnify and hold Landlord harmless from all losses, damages, claims, liabilities, costa and expenses (including 50 legal fees) arising out of any failure to do so. Tenant acknowledges Landlord has made no representations, and 51 that Tenant has conducted all inspections it deems necessary (including environmental), and Tenant accepts the 52' Leased Premises and all the equipment, apparatus, plumbing, heating, air conditioning, electric, water, waste 53 disposal and other systems relating thereto and the parking lot and the other Common Area of the Shopping 64 Center "AS IS". Landlord is not obligated with respect to either the Leased Premises or the Shopping Center to 55 make any improvements, changes, installations, do any work, make any alterations,.repairs or replacements, 56 clean out the Leased Premises, obtain any permits, licenses or governmental approvals, or spend any money 57 either to put Tenant in possession or to permit Tenant to open for business, unless Landlord has so agreed 58 expressly in this Lease.. All work other than that to be performed by Landlord, if any, shall be accomplished by 59 Tenant. Unless specifically stated otherwise in this Lease, it is deemed that landlord shall have tendered 60 possession of the Leased Premises to Tenant immediately on the signing ,of tins Lease by both Landlord and 61 - Tenant Except for signs, merchandise counters or other easily removable similar trade fixtures installed by 62 Tenant at Tenant's expense, all alterations, decorations, additions and improvements made by Tenant to the 63 Leased Premises and including all heating and air-conditioning units, equipment and apparatus at the Leased 64 Premises and other fixtures such as ceiling tiles and grids, lighting fixtures, electric panel boxes, plumbing, 65 boilers, floor and wall coverings, alarm systems, lights, toilet fixtures, partitions, doors and utilities shall be 66'. deemed attached to the freehold and be Landlord's property. 67` 68' 8. Common Area. '69 70 (A) Subject to subparagraph (C) below, Tenant and its employees, agents, and customers shall 71 have the non-exclusive right to the use or benefit of the Common Area to the extent and in the mariner reasonably 72 designated by Landlord. Except as otherwise specified in this Lease, Landlord agrees to make all necessary 73 repairs and maintenance to the Common Area to keep same in good condition, including without limitation 74 sweeping and removal of snow, ice and refuse, and landscaping maintenance. 75 - 76 (5) "Common Area" is hereby 'defined as` the areas,' equipment and facilities of the Shopping 77 Center or of any other land or property made available by Landlord for the safety, benefit or convenience of 78 tenants or their employees, subtenants, customers or invitees, including (as illustrations and not in limitation): 79 parking areas, driveways, truck serviceways, sidewalks and curbs; entrances and exits from the adjacent streets; 80 traffic lights, traffic islands, landscaped areas; meter rooms outside individual stores; fencing; lighting facilities; 7 C:\vea\client\TEMPlCsrlisle Coffee Company 1-4DJG9 Proj ID SPAC1075.doc KB 5/10/2004 1. sprinkler system servingdundacaped arena or buildings;' sewage system outside tenants'. stores; roofs, gutters and 2 'downspouts and the exterior of outside walls (excluding storefronts) of buildings (without implying Tenant only 3 use the roofs or outside walla); directional or safety signs; Landlord's pylon algae: (but not individual tenant 4. panels) und sign panels which identify the Shopping Center. Tenant acknowledges that die Coltman Area may 5 also be used by occupants and/or invitees of propertiesadjoining the Shopping Center, whether or not. owned; 6 lensed or managed by Landlord. 8 (C) Landlord reserves the right at any time and from time to time to change or reduce or add to 9 the Common Area. Common Area shall be under the exclusive control and management of Landlord (including 10 the hours that parking area lights arc kept on). Tenant and its employees shell park their vehicles only in areas 11 Landlord designates for employee parking; if after one (1) Violation. notice is given to Tenant g violation reeurs;by 12 Tenant or its employees parking vehicles in other than the employee parking areas, Landlord shoji have the right 13: to tow such vehicle at Tenants expense and/or levy an, assessment against:Tenant of Forty ($40.00) Dollara;per 14 day for each vehicle. Tenant shall not permit trucks or delivery vehicles used by it to be parked in the Common 15 Area except where Landlord permits. Landlord may, impose parking charges by meter or otherwise, and nigydor 16 parts of the Common Area for such time necessary in its opinion to prevent a :dedication. or accrual or rights in. 17 other persons, or to discourage non -customer parking. Landlord shall not be obligated (although. it cna.y do so at 18 its option) to keep the Common Area illuminated to any extent after 10:00 P.M. or on any Sunday or legal holiday. 1.9 20 (D) Common Area Rent. In the manner hereinafter described, Tenant shall pay its share of 21 "Yearly Common Area Costa* thereinafter defined); Dn the first, day of each 'moat/tin adyance, Tenant shall pay to 22 Landlord, as additional Relit (herein called "Common Area Rent') one -twelfth (1/12th)-ofTenands annual share of 23 Landlord's. estimated Yearly Common Area Cost, based on Landlords estimates. Tenants annual share shall be 24 determined by multiplying the Yearly Common Area Costs by Tenants Fraction (defined in Article 5(B)). For a 25. portion of a calendar month at the beginning of the Lease Term, Tenant's Common Area Rent shall be prorated for 26 that month. 27 28. (E) 'Yearly Common Area Costs" shall mean and *Judo an costs 'anal asperses incurred by 29` Landlord during each twelve (12) month period selected by.:l andlord for repair;. ,replacement, psdntiag,, 30 maintenance, protection and operation of the Common Area and for Msuranee carried by Landlord. with respect 31 to the Shopping Center, and insurance -related costa and expenses', including (by. way of meampies and not in 32 limitation) costs or expenses relating to: parking areas, sidewalks and the like; storm water and sewage drainage 33 and sanitary control; removal of snow, ice and refuso (including use of trash compactors); gardening end 34. landscaping, roof repairs; insuring buildings and improvements 'and insuring for bodily .injury and property 3S' damage liability, including but not limited to insurance premiums admInlstrative costs, fees, losses within 36 deduetildeti and/or self insured intentions for Ali=Risk Property insurance including Blood and fiarthquake, Boller 37 fls MArhinery, Loss of Rerits,.Eiime, General anti Umbrella liability, Workers Compensation, Automobile, and such 38 other coverages and iimite sis t ndiord in its epic discretion deems reasonable in the cit cnmatancee, all at the fair 39 premlup s•(whieh maybe at the manual rates.appilcable to the Shopping Center), as if the Shopping Center was 40the only property owned by Landlord (but notwithstanding the foregoing, such insurance may be obtained 41 through blanket policies as long as Landlord makes a reasonable allocation of premiums to the Shopping Center, 42 which allocation may be based, inter and, , upon a uniform per square foot rate for all or substantially all property 43 owned by Landlord and affiliates); controlling or eliminating :puddling or flooding; lighting (Including electric cost 44 and maintenance, repair or replacement of fixtures, poles and replacement of bulbs); depredation or property 45• owned or rental paid for maintenance machinery and equipment; tares or fees payable by Landlord. for any 46 pylons, equipment or other facilities; costs of security patrols, dfreotingpat-king'and policing the°Common Areas, 47 compensation to personnel engaged in managing the Common Areas and implementing services related thereto; 48 plus fifteen (15%) percent of the Yearly Common Area Costs as a fixed administrative fee for Landlord. Landlord 49 may cause any services such as sweeping, snow removal, repairs, etc. to be provided by independent contractors, 50 and the fees paid shall be part of Yearly Common Area Costa. 51 $2 (F) After the end of each accounting period, Landlord shall furnish a statement of the actual 53 Yearly Common Area Costs. If the statement shows that the aggregate of Tenant's monthly estimates paid by $4 Tenant during such year was less than Tenant's Common Area Rent payable, Tenant shall pay the balance'due to $5 Landlord within ten (10) days after receipt of the statement; and if the' statement shows that the aggregate paid 56 exceeded the Common Area Rent payable, Landlord shall either refund the excess or credit Tenant's next accruing 57 Common Area Rent. Tenant's failure to give Landlord written notice of any objection to the statement Within 58 ninety (90) days after the statement is sent shall constitute a waiver of any objection or inquiry Tenant may have 59 about the statement or for any examination of Landlord's records. Tenant acknowledges Landlord has not made 613 any warranty, agreement or representation of any kind as to the actual dollar amount of Yearly Common Area 61 Costs or Tenant's dollar share thereof. 62 9. Ilse of Premises. 64 -6$ (A) Tenant agrees that the Leased Premises will be used and occupied by Tenant and/or any 66 assignees, sublessees or other occupants (which reference to assignees, sublessees and other occupants shall not 67 be deemed to give Tenant any rights to assign or sublet not specifically set forth in this Lease), or permitted to be 68 used and occupied by Tenant or any other such parties only for the Permitted Use, and for no other use or 69 purpose. Without limitation of the foregoing, no sale or dispensing of lottery tickets, other gaming tickets, liquor, 70 wine or beer shall be permitted. 71 72 • (B) Neither Tenant, nor any stockholder owning more than five (5%) percent of Tenant if Tenant is 73 a corporation, nor any person, corporation, partnership, trust, other firm or entity which controls or is controlled 74 by Tenant or is under common control with Tenant, nor any subsidiary of Tenant, nor any business organization 7$ affiliated with Tenant (including but not limited to any so-called "parent -company" of Tenant), nor any guarantor 76 of this Lease, will, directly or indirectly, conduct business at,'or sell from, any other place situated within a radius 77 of three (3) miles of the Leased Premises' any merchandise or services which Tenant is permitted to sell or engage 78 in any Madness which Tenant is permitted to conduct in the Leased Premises. 4, ,r x a le , e cert hal notbe fleemod violati a n of this restriction. in addition to, and not in .exclusion of, any remedy available to Landlord for 80 breach of the foregoing covenant, so long as this covenant is being breached, Tenant's annual Base Rent shall be 8 C:\sea\client\TEMP\Carlisle Coffee Company 1-4DJG9 Proj ID SPAC1075.doc Kb 5/10/2004 1 increased by twenty-five (25%) percent. aridran,aclditient-ane-teeetf4l- )-ef-a =gf-t A-=Urusp,,SuieE=(sea ale.4(Ci}) 2 ree}ised-lit-or-from-lush-other--pleeo-aholl-be-added-ts ►o4rosa-Sales-of-iiia aood }demises-frit-tlic=p f 3 computing-ti3e-PeFoentute-{rent-tinder-l:hsa-i;erase,-wlth-the-soinc;-ef%etlt»uglrsiren-otliar-Groct3-,Saleo-1;qd. 4 aentally4sees-realized-frcita lte-beaocd-Premise'oriiat if-TifannOin-seoised-Oandiwting-basins wat:the-imooed 5 Premises-theririri4fdditieti-ta_i}Se-Eiveiit�r y,):rereent-Aisle-Rent-inereaner zl!-the•=43reasSa9est-realized-from . euala-outer-pineeohelihe•attibuted-ta he teased-Psemisea.7. 8 (C) Tenant's Business dporations. 'Tenant shall:keep the Leased. Premises open and opetattd 9 continuously for. business not lass than from: 10:00A,M..to.9:0a P.M. each day far. at least six (6) days a week. 10 Tenant will continuously. operate its business therein with diligence and in a:manner calculated to.Meduca 11 maximum Gross Salest-fktlly-otriffed-with-personnel-•at-the-tseased-Premieesr annr3-at-sil-tirneo-rially-otauked-i ,ih 12 seaeonel-merehaxdise. Tenant agrees for iia part mo auction, fire, bankruptcy going out of business or:similar 13 sale will be conducted or advertised; no merchandise will be kept, displayed or sold. or business solieitc i in;the 14 Shopping Center outside MC Leased Premises; no nuisance will be Permitted;'MOW be •done_tnldch'is 15 unlawful, offensive or contrary to any .law, ordinanee, rcgulatuln or.'requireaiient of public authority;' of which 16 fray be injurious to ar adversely' affect the quality of 'the i cased i't'emises or the Shopping Center, no part of the 17 Leased,Preraises (especially the electric and plumbing systems, the floor,and walls) will be. overloaded,. damaged or 18 defaced, no holes will be in the stone or:brfckwork or in concrete) no emission of any objectionable. odors, 19 sounds or Vibrations will- be permitted; Tenant shall procure all licenses and permits required for the use or 20 occupancy of the Leased Premises and the business being conducted therein; the storefront, show windows and 21 signs will be repaired, kept clean, in good condition and lighted; all merchandise and other property will be 22 delivered to or removed from the Leased Premises only by the rear entrance; all garbage, waste and refuse will be 23 kept stored temporarily inside the Leased Premises and then rdgulariy 'rttnoved at•Tenant's"'expense and, if 24 Landlord opts, only by a emitractor designated by Landlord, provided its prime is competitive, Tontwt'yrlll comply 25 with` the requirements of law and' any.requests of governmental ageneies" or Landlord'in its recycling proginuri If 26 any: Tenant will cooperate with Landlord and. other tenants of the Shopping Center: in ; promotions ,and 27 itdvertIsing, ani) will bileotae,ri dose paying niembear.of any merchants' association (or similar organization) of 28 which fifty (50%) percent or more of the tenants are members; or alternatively will become a participant of and 29 shall pay its prorate. share (based ori Tentxnt's:relative store size) of any expenses incurred by a marketing or 30 promotion fund program now or :hereafter . eeitabliahcd by Landlord, if any. Tenant shall comply with all . 31 environmental statutes, regulations or ordinances' now or hereinafter enacted by government authorities. Tenant 32 shall not permit the release, emission, disposal, dumping or storage of hazardous wastes (as defined in any such 33 laws) into the septic tanks, sewers, or other waste disposal facilities of the Shopping Center or anywhere in the 34 Shopping Center, or permit same to be brought into the Leased Premises at any time, and the provisions of this 35 sentence shall survive the expiration of the Lease Term. Tenant shall keep the Leased Premises free of rodents, 36 vermin, insects and other pests, and provide regular exterminator services at its own expense, and, if Landlord 37 opts, only by an exterminator designated by Landlord provided Its price is competitive. Tenant agrees that 38 nothing will be done or omitted which may either prevent the obtaining by Landlord or other tenants of insurance 39. on any part of the Shopping Center or on any personal property thereon, or which may make void or voidable any 40 such insurance, or which may create any extra premiums for any insurance carried by Landlord or other tenants. 41 Tenant will comply with all requirements and recommendations of Landlord's and Tenant's insurance companies 42 and any rating bureau or similar organization, including maintaining and servicing fire extinguishers, .44 (D) Tenant agrees to: stock only merchandise Tenant intends to offer for sale at retail at the '45Leased Premises; use for office or other non -selling purposes only incidental space required for Tenant's retail :46 business conducted at the Leased Premises; not sell goods, sollelt bustaeas or distribute advertising matter in the :47 Common Areas; not permit preparsitson-tif-food-or=any-sea ' ,frying in the Leased Premises. 48 Tenant shall keep the siders lka, curbs acrd ramps :Of any) adjacent to the Leased Premises (and also all delivery 49 areas, ramps, loading areas and docks used exclusively by Tenant) in good and safe condition and free from snow, 50 ice, and rubbish. Tenant will not make or suffer any waste of the Leased Premises- Landlord shall not be liable 51 for the act of any other tenant or person who may cause damage to or who may interfere with Tenant's use or • 52 occupancy of the Leased Premises yr Tenant's business. 53 .54 10. (A) Utilities. Tenant shall provide and pay for its own heat, air conditioning, water, gas, 55 electricity, sewer, sprinklers and other utilities, including application deposits and installation charges for meters .56 and for consumption or use of utilities. Tenant shall pay its share of sewer charges, if any, reasonably 57 determined by Landlord. Tenant shall keep sufficient heat to prevent the pipes from freezing. If Tenant receives 58 utilities through a meter,which supplies utilities to other tenants, Tenant will pay to Landlord Tenant's • 59 proportionate share (based on relative square feet size of premises) of the total meter charges. If Tenant receives 60. water from Landlord's well or other sources made available by Landlord (instead of from an independent water .61'. company), Tenant shall pay for the water, and all costs and expenses for the maintenance, repair, replacement 62. and installation of tanks, electric costs, machinery, apparatus and facilities shall be included In Yearly Common 63 Area Costs. See Article 32 re Utility Deregulation, 64 .65 (B) Landlord's Repairs. Weather permitting and subject to Article 25, Landlord shall, within 66 thirty (30) days alter receiving written notice from Tenant, commence to make repairs, if necessary, to the 67 foundation, the roof, the exterior of the perimeter demising walls, and the load-bearing structural columns and .68 beams in the Leased Premises, except that if those repairs or replacements arise from (i) repairs, installations, 09. alterations, or improvements by or for Tenant or anyone claiming under Tenant, or (ii) the fault or misuse of 70. Tenant or anyone claiming under Tenant, or (iii) default under the Lease by Tenant, then Tenant shall make such :71 repairs or replacements or, if Landlord elects, Landlord may perform the work for Tenant's account and Tenant 72 shall reimburse Landlord for expenses incurred. In determining Landlord's repair obligations, the expression 73 "roof' does not include rooftop heating or air conditioning units or other structures or apparatus on the roof 74 serving the Leased Premises, and "exterior of walls° does not include the storefront, any glass, windows, window 75 sashes or frames, doors, door frames or hardware, trim or closure devices, or any part of the interior side of 76 perimeter walls, all of which shall be Tenant's duty to repair,, maintain, and replace. In any event, Landlord's 77 obligation .shall be only to make the repairs for which it is hereby obligated, and Landlord shall not be liable for 78 loss of business, loss of sales, loss of profits or for any consequential damages or for damage to or loss of personal 79 property, fixtures or any interior elements of the Leased Premises which are Tenant's responsibility to maintain or SO repair. 9 C:\sea\client\TEMP\Carlisle Coffee Company 1-4DI09 Proj ]D SPAC1075.doc KE 5/10/2004 1 2 (C) Tenures' Repairs: subject to Article 10($) Teagnt ahtill maintain and make' alt repairs and 3 alterations"ofevery kind with respect to ilia Leased Prernisea (including necessary replacements) tc keep itirt good 4 Conditiepr-iineludirigi the storefront,. glass, signs, ceilings, interior walls; interior'side of pertmetertvalls, floor, floor 5 coverings plumbing, electric heating and air conditioning sprite dere sad lighting failures) and do al! required by . 6 any laws ordinances or requirements of pubbc authorities. "i Pipet "the parrrt thsy. serve tile Leased Premises 7 exclusively, .whether locatedinside: or autaide, Tenant shall make all repairs, replacements and alterations 8 necessary to maintain in good condition all lines, apparatus, and equipment relating to utilities (including 9 heating, air conditioning, water, gas, electricity and sewerage). Tenant shall maintain a service contract for the 10 regular seasonal,,niairttenivace of the heating ventilating aand air conditioning (''IiVAC") ; aysceut ;se vicing the 11 Leased Preadaca-with'a reputable TlVAC Contractor itt all timesduringcthe genie; Additionally, if any, air 12 conditioning or heating equipment. (Or other'utility equipment) is'damaged,by "vandalism, firelightrring or otli'er 13 casualty, Tenant shall repair (and if necessary, replace) the eq>,tipnsent, notwithstandingArdele 13. Tentint's'sole 14 tight of recovery shall be against Tenant's insurers far: lone or,damav to stock, furniture and fixtures; equiptncnt, 15. improvements and betterments. 16 17 (D) Signs; Palating; Distrlaysi No. sign, other advertising or tory otlaEer thing may be plated; ley 1$; Tenant or anyone claiming, under Tenant on file exterior of the Leased, Premises or an the interior part of either: 19 windows'or doors without -Landlord's prier written approval, which shall not be unreasonably,, withheld. Tenant•. 20 shall net utilize flashing, painted neon "or..moving signs or lights,, Tenant shall not;paint; decotets or mark;any part of the exterior, Tctrant shall install au 0000 :14.4*. or signs iii" Compliance with. Landlord's 22specifications and keep the ,sign(s) .(which must first be approved by Landlord in writing)' lit to at least 10:00 P.M. 23; or to such later hour as requested by Landlord, on all days of the year. ,24 25 (E) Alterations. No'.alterations, installations, additions or improvements will be made to the 26; Leased Premises by Tenant without Landlords prior.wr€tten approval. All installations, alterations, additions and .27 improvements, whether by Landlord, Tenant:or any other person (except only sign panels and movable trade 28 fixtures installed at Tenant's coat) ahall become, -when made, a part of Landlord's real estate, and on termination 29' of the Lease Term shell be surrendered with the Leased Premises in good condition. Tenant shall not have the 30: right to remove sign boxes: Tenant 'shad defend, indemnifysave iandlorl:iiarinless"-ft to and against all. 3) etairns for injury;;loss or damage to person er property caused by `lir resrilting from doing atiSt*tic:;1 For any work 32 that €nvolves penetration of the roof surface or alteratiotls to the sprir elder system Tenant shall employ Landlord'a 33 contractor. The tirdittetaitee-ct any portion of the roof affected: by Tenant's work will be Tenants responsibility 34< including repair of areas of ties Shoppfrrg Center that riiight tie affected COMIC. water penetration through Tenant's 35- roof work; 3t5 37 (P) Permita; Liens,, All r'cpafrs,.installations, alterations; improvements and removals by Tenant 38 will he -thine in a:good and workmanlike mariner, only afterTenant,baa procured all permits. Tenant shall comply 39 with ail laws, ordinances "arid regulations of public authorities linty** all Landlord's and Tenant's insurance 0 requirements end with insurance inspection. or rat€ng bureaus; and the work shall not adversely affect the 41 structure of the building. Tenant shall pay promptly when due all charges for labor and materials in connection 42 with any work done key oir tor:Tenaint ar anyone Claiming•under Tenant. Tenant shall remove, by payment, 43 bonding or otherwise; within ten•(101 clays after notice, all iicna placed on the public record or in any way against 44. Landlord's interest or the Shopping:centnr resulting from any act of Tenant or from labor or materials being 45 < alleged to have been supplied at the request of Tenant or anyone claiming under Tenant, failing which Landlord 46 may remove such lien and collect all expenses incurred from Tenant as additional Rent. Tenant shall protect, 47` defend, save harmless and indemnify Landlord and any fee owner of the Shopping. Center from and against all losses, claims, liabilities, -injuries, expenses` (including legal fees), lawsuits and damages arising out of any lien 49 described above. S0` 51 ii. Indemnity; Insurance. 52 53' (A) Tenant shall protect, defend, save harmless and indemnify Landlord and any fee owner of the 54 Shopping Center from and against all losses, claims, liabilities, injuries, expenses (including legal fees), lawsuits 55 and damages of whatever nature either (i) claimed to have been caused by or resulted from any act, omission or 56 negligence of Tenant or its subtenants, concessionaires, employees, contractors and invitees no matter where 57 occurring, or (iI) occurring in the Leased Premises except if caused by Landlord's negligence. Landlord shall not be 58;. liable under any circumstances for any injury or any loss or damage to or interference with any merchandise, 59 equipment, fixtures, furniture, furnishings or other personal property or the business operations of Tenant or 60. anyone in the Leased Premises occasioned by (1) the act or omission of persons occupying other premises, or (ii) 61 any defect, latent or otherwise, in any building or the equipment, machinery, utilities, or apparatus, or (iii) any 62 breakage or leakage of the roof, walls, floor, pipes or equipment, or (iv) any backing up, seepage or overflow of 63 water or sewerage, or (v) flood, rain, snowfall or other elements or Acts of God. If Tenant makes shopping carts 64 'available, the foregoing indemnity provisions shall apply to claims relating to the shopping carts; and Tenant shall 66:' remove all shopping Cartafrom the Common Area, as often as necessary, so that the Common Area shall remain 66: reasonably free of carts. All shopping carts shall be stored inside the Leased Premises. 67: 68' (B) Tenant's Insurance. Tenant shall maintain with financially responsible insurance companies 69 with a Best Rating of not less than A -VIII licensed to do business in the state where the Leased Premises is 70 located: (i) a commercial general liability insurance policy with respect to the Leased Premises and its 71 appurtenances (including signs) naming Landlord- as an additional insured with a limit of not less than One 72 Million ($1,000,000) Dollars; (ii) an umbrella liability insurance policy with a limit of not less than Five Million 73, ($5,000,000) Dollars, naming Landlord as an additional insured; (iii) an insurance policy to cover heating and 74 air-conditioning units against damage for one hundred (100%) percent replacement cost; (iv) an all-risk property 75; insurance policy insuring all merchandise, leasehold improvements, furniture, fixtures end other personal 76` property, all at their replacement cost; and (v) business interruption insurance. Tenant shall deliver these 77 insurance policies or certificates thereof, satisfactory to Landlord, issued by the insurance company to Landlord 78'with premiums prepaid on the signing of this Lease and thereafter at least thirty (30) days prior to each expiring 79 policy. Tenant's failure to deliver the policies or certificates shall constitute a default. All policies of insurance 80 required of Tenant shall have terms of not less than one (1) year. '- 10 C:\sea\client\TEMP\Carlisle Coffee Company I-4DJG9 Proj ID SPAC1075.dac KE 5/10/2004 1 2 12. Access to Premises. Landlord shall have the ri at(but shall net.be obligated);: to enter the Lasser! 3' Premises upon', reasonable notice (and ni'cane •of emergency without notice) to inspect or _to, show :the Leased 4, Premises to prospective' purchasers 'mortgagees or telt ants; or; to make„any repairs 'i%iterations or improvcaiextts, 5• indtirilag the installation or removal`at pipes, wires and otherrcondtiite serving otherpart's of the Shopping, 6' Center:” Coi inencing alit (6) months poor"to expiration•of the --Lease Terhr, Lnndiord may maintain `'Por Banc 7 signs;an the:front or any other part of the exterior of the Leased Premises.. Laridhard'furihcr reserves to itself the $ exclusive right at any time to use the roof, foundation':or aateriorwai(s,•(aiher fh iii:'(e*it'S stprctriintj`for fslseing., 9 of signs or equipment or for purpose of additional construndoir: 1. 11 13. Fire or Other Casualty. 12. 13 (A) Tenant shall give prompt notice to Landlord in case of fire or other damage to the Leased 14 Premises. 15 16 (B) If (i) the Shopping Center buildings are datnageda tie.extent"af.rimore thea twonty-fivc. (25%). 17 percent of the replacement cost, or (ii) the Leased Prermsea are'damaged,to tlo extent of more than "fifty"(50%) 18 percent of the replacement cost, or (iii) the Leased premises are dammed and Tenaat is not operadng Far bvglness 19 as required by Article 9(C) at the time the damage oeeurs, at (iv) ,;the Leased Premtses'are dame ged endsless than 20 one (1) year of the Lease Term remains unexpired at;the time of the fire or other cesuelt; ricrac rn any of such 21 events, Landlord may terminate this Lease by notice• to Tcttant_vrithin tilnely (90) dags;after`such event;,and'on 22 the date specified in the notice this Lease shall terminate 1fthc:damsgevenders tiib"l;eaaed,pra nines. holly or 23 partially untenantable, there shall be a fair and equitable pxoportionato, abatement of all Rent during that period: 24 Unless this Lease is terminated as aforesaid, this Lcase'shallremain uneffeet, ' 25 26 (C) If this Lease is not rrn••j••••••is oisesnail.continuo In,fitil force'and allect 27 (Tenant waives any right conferred by orgy applleablc' law to ;tannin-nate::tiils Leese basad `ort the damage) `snd 28 Tenant shall, immediately on notice froiit;Landlord, rezitove pita fiatEurea, other property and deisfis xui'r'egpared'by 29 Landlord, and then Landlord shall rebuild the Leased Preni"ises Yo t>re` condition eaisting•`tvhen the Leesed: 30' Premises was originally delivered to Tenant; and on eompletfon.thereofTona it short"reatate Tenanei prii aerty bird 31 promptly reopen for business. Tenant shall use the proceeds".of any recovery on Tenants insurance policies',far, 32 restoration of improvements made by Tenant to the Leased Premises and:'for restoration atiti/ar`r`eplacemeiitof 33` Tenant's equipment, trade fixtures and inventory, and to caner any business h'ttcrtup`t(on lose; 3+�5 (D) The "replacement cost" as used in (S) above shall be determined by a reputable contractor 36 selected by Landlord. 7 388 14. Eminent Domain. 40. (A) If the whole of the Leased Premises are taken in connection with eminent domain, the Lease 41. Term shall expire when Landlord shall be divested of its title, and Rent shall be apportioned as of that date, 43 onlY part ofneLeased,PrenisesnirrconncctlenWill.t.i cneminentilamalle and the". groindsfioat ara:of the.Laased premiseslsreducedya itvratty-sire) pet and the part iemaftiing, 45; shall not be reasonably adequate for We operation of Teitant`a lbuisinesa„Landlard arTenant Wray terminate this 46 Lease by giving the other notice within thirty' (31)) days after such tralting effective as pi the date possestdott of the". 47 taken part shall #ie required toy public uta aril RsnY areal! be"appartronad a®':cf that iritic, 4$ 49 (C) Tenant shall not have any claim for an award based on the loss of its leasehold estate. 550 Landlord shall he autitleti': t0 all damages in connection with eminent domain. Tenant shall execute any 51 tnstrtinient rrquir`ed by Lantlitrd for the• recovery of damages and to remit to Landlord any damage proceeds 52 cccovered, except;; however,`Tt iiant may recover for itself damages for movable trade fixtures which were installed 53 by Tenant, provided Landlord's award is not reduced thereby. 16. Defaults and Remedies. 5`6 57 `(A} Any one ,ot the "following sliafl"bs a defaulk" by:Tenant: (1) if Tcrxint,"fails.to pay'Rent, Security $8 Deposit or other money; orae provide'a corOtiiii to of insurance or to "provide sn estoppel ecriificate as required by 59 Article>,27 when due, or .(2) of Telt falls to perform or obserte' any agreement or. condition ori its part to be 60 performed o- obser•-ed :other than the defaults metztione;i m the preceding ciauae'(1);.or in clauses' (3) through (8) 61 below,; or, if Tenant defaults utider airy other:]ease;ar` agreement between Tenant and Landlord or an affiliate of 62. Landlord, or (3) if Tenant's leasehold interest is levied on, attached or taken by any process of law, or (4) if Tenant 63: a makes an assignment of its property for the benefit of creditors, or (5) if any bankruptcy, insolvency or 64... reorganization proceeding or arrangement with creditors (whether through court or by proposed composition with 65 creditors) is commenced by or against Tenant, or (6) if a receiver or trustee is appointed for any of Tenant's 66 property, or (7) if this Lease is transferred to or devolves on, or the Leased Premises is occupied by, anyone other 67 than Tenant except if specifically permitted by this Lease, or (8) if Tenant closes the Leased Premises or ceases 68 doing business at the Leased Premises. 69 7.0 (B) If (i) a default described in subsection 15(A)(1) or in subsections 15(A)(3) through (7) inclusive 71 occurs, or (ii) a default described in subsections 15(A)(2) or 15(A)(8) occurs and continues for more than fifteen "72 (15) days after written notice from Landlord, then in any of such cases Landlord or its agent shall have the right 73 to enter the Leased Premises and dispossess Tenant and all other occupants and their property by legal 74. proceedings, use of reasonable force (under the conditions allowed in Article 15(F) hereof) or otherwise. Tenant 75 hereby waives any claim it might have for trespass or conversion or other damages if Landlord exercises such '76 remedies. Landlord may exercise the remedies just mentioned without terminating this Lease. As an independent cumulative right to obtaining possession without terminating this Lease, Landlord shall have the `78 right to terminate this Lease by giving Tenant written notice specifying the day of termination (which shall be not 79 less than five (5) days from the date of the notice), on which date this Lease and all of Tenant's rights will cease as 11 C:\sealclient\TEMP1Carlisle Coffee Company 1-4DJG9 Proj ID SPAC1075.doc KE 5/10/2004 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 27 28 29 30 333 334 35 36 37 38 39 41400 42 43 44 46 47 48 49 50 51 52 53 54 55 56 57 58 59 60 61 62 63 64 65 66 67 68 69 70 71 72 73 74 75 76 77 78 79 a conditional limitation, as if that date specified in Landlord's notice was the original date for expiration of this Lease; but in all cases Tenant shall remain liable as hereinafter provided. (C) Notwithstanding any re-entry, dispossessioii;gr tarnivaeuon of: the Lease: by Lan{llotd, Tenant' will remain liable for damages to Landlord in an amount equal to.the.;dggregata:otall Rents,and otheethargea requited to be 'pald up to'.the tstnc•of such; rc-entry, : iispt)ssesston: or termination, <and forLandlords damages; ansiug out, of the failureofTenanil observe and prctform`Tenanescovenants end,';in addition, for each month of the` period which` would. otherwise %have constituted the balance of the Lease Term, Tenant shall `pay any between the monthly installment of Base Rent plus the Tax'Rent, Cotnznon Area::Rant and 'en Other 'Rent' thait would have been payable, less the net amount of therrenta actually collected. by Landlord from, a netw;-.tenant, if any. Tenant will not be entitled to any surplus. `Furthermore, Tenant. will be liable -to Landlord;' for,, all .the" expenses Landlord incurs for legal fees related to obtaining 'po se'lston and Making a tiewlease with another tenant; brokerage •conuniastons in obtaining another tenant and eitpenses inet rred:in :putting:the Lea;4 dd Preeniaaain'good order acid preparing for r xetttal (together Lterein referq'eii to as "Relening .Ccistalt additieni, Landlord may-relet the Leased • Premises car -any pan thetrief `for a`term; Which mayrbe less or more.then the period'which would have constituted the balance of kite'f ease' Term and "may grant reseonable` Y necesians Or free rent to a new tenant. Landlord's refusal or failure to relet the: Leased Pretassea to A new tattant shalt a ntreleaae or affect Tenant's liability; and Landlord shall not be liable for -6,11;6 or'ieieal to -slat, or .for failure ta collect rent under such ;reletting i'as-tie-pp ttrpoee of -co pr ing-%a ziilor rs dtiiisge siii to lase=o£ rifuge Renta nutlet;, 1. In any case *bore Landlord shall have the right to hold Tenant liable monthly, Landlord may elect to declare all the aggragate Raittfor the remaining balance of the Lease Term, as well as all accrued Rent, to be itmn dlately clue and;p;tyablc,'Itnel to recover immediately against Tenant all such Rent (for loss of a bargain' and; not as;_a penalty). (E) In'the''cvent of a.breach orthreatened breach of the -4..0, by Tenant, Landlord shall; have e th. right of injunction and the right to -invoke any, remedy:allowa d at law or, in equity Remedies of:Landlori€ prrovidtd in this Lease are cutnukiitive andmit exchteive, and may be feiteMliedfitt3tlinoatiertjnILandlianil Paitentraittly ar; Otherwise.. -Remediies:providedin this Lease`ara lri additidri to, and not;tti`liettol anyother remed€es,Landlorcl may have in law or fn () iersar t walvos' a end, :Tenant waives artynights of it Tile wards "rb'enter" anti : "tc enirj+ foregoing Landlord maty use fare a cbtu-t order; j iclgrrsent or"decree or;( , tau the jitiblipPereqUired:10'/CrtialaS(Cjof ' 163 iandlrird Tertant,;i proceeding oricouuterola(m broughtby; either COMteetect with this Lease, or theirmiatlonshif;. agrees `that no countercirs€tn or' etoff Will. be'fri even,if such°eatin erctairri,orcetofffa kxzserl en quiet'eajoymant� ar any"o lier,nlldg it%i .:. hnstitite galproceedingsto that ad by tiny;present or. future laws., :meaning: Notwithstanding the' ►tions; p) iris pursuant to law or at this Lrased Premises ,opeii ass days: by jinJ #rt any action, g:°1# of or' In, any way or'rieettparicy, Tenant,. non-payment of Rent, alleged breach of 16. Subordination. (A) Thts;I ase is and shall bb: subject' and subotdinate to ff) all ground; or underlyingleases and,. or:ether aeettrity.tnatruments.iigw or' hereafter affecting such' leasee; and (L) all mortgages"or other ate iofv.or.hereafter affecting the `fee title the 8tioppsng t enter, and. (d$ ail renowaia, cans+5llitiitions,',replacenneats.. tadcaters onsa°oi. any'pitch ground or utiderly g g lekeea` and rue. This. clause' s1iail.be:aself•operative aadno further instrument of subordination shall be required by any ground or underlying'lessee or by any mortgagee. In confirmation of such subordination, Tenant agrees to execute promptly any instrument that Landlord may request However, at the option of Landlord or such mortgagee or ground lessor or secured party, this Lease shall be paramount to such mortgage or ground or underlying lease or other security instrument. (B) If Landlord transfers its interest in the Leased Premises, or proceedings are brought for foreclosure of any such mortgage or in case of sale In lieu thereof, or termination of any such ground or underlying lease, Tenant shall, if requested, attom to the transferee, mortgagee, ground or underlying lessor and deliver, without charge, instruments acknowledging the attarnment.; (C) Provided Tenant was given notice in writing of the names and addresses to which the notices should be sent, Tenant shall give prompt written notice of any default by Landlord to the holderof all mortgages, ground -or underlying leases and security holders if that default is such as to give Tenant a right to (i) terminate this Lease, or (ii) reduce the Rents or any other sums reserved, or (iii) credit or offset any amounts against Rents. Any mortgagee, ground lessor or security holder shall have the right to cure Landlord's default within sixty (60) clays after receipt of Tenant's notice; and no such rights or remedies shall be exercised by Tenant until the expiration of sold sixty (60) days (or such additional time reasonably required to cure such default). 17. Waiver of Subrogation. Landlord and Tenant hereby release the other and all other persons claiming under it from any and all liability for loss or damage caused .by any casualty, even if the casualty is brought about by the fault or negligence of the other or of any persons claiming under the other. Tenant and Landlord will cause their respective insurance companies to endorse their respective insurance policies to permit a waiver of subrogation. 12 C:\sea\client\TEMP\Carlisle Coffee Company 1-4DJG9 Proj ID SPAC1075.doe KE 5/10/2004 1 :18. pSSIGNWENT OR 6'tJBLETTJNG. Tenant shall not anaifn, mortgage, pledge, or otherwise transfer or 2 encumber this Lease or any interest therein, either voluntarily or by operation of: law or otherwise, or sublet the 3 whole or any part of the Leased Premises, or permit occupancy by anyone else, withoutobtaining or each 4 occasion Latidlord's prior written consent,, which consent Landlord may deny,regardless of eommeacial 5 roasonnbleness. ;In any ossignrrient the assignee must assume this Lease in writing on landlord' fonti. Any 6 request for Landlord a consent to assignment or subletting shall be accompaniedby payment of Landlord's 7 reasonable adrnlntatraiive and attorneys' fees relating, thereto: Notwithstanding an assignment or subletting or 8 occupancy of the Leased Premises by anyone other:then Tenant, Tenant shah not be released: (nor shall any. of I Tehant's constituents, partners, or members be released) from any obligations, liabilities or vov stints under this 10 Lease and shag continue to remain responsible. Landlord alien have the right to collect Pent:from any assignee; 11 subtenant or other occupant .without releasing Tenant or waiving any right. against Tenant far its default under 12 this Article and without accepting the payer as a permitted tenant. Any transfer: of (i) any.corpbt'ste stock.of; (ii) 13 any partnership Interest in; or Will any membership interest in Tenant, or a merger, consolidation or liquidation of 14 or by Tenant,, either voluntarily or by operation of law, shall be deemed an assignment and require Landlord's 15 consent as stated above. Under any. circumstances, Landlord shall not he liable for any money damages to 16 Tenant or Tenant's proposed assigned transferee or subtenant for refusal to,consent to anyassignment or 17 transfer of;this Lease ortransfer of Tenant's corporate stock or sate of Tenant's business or for refusal'to. consent. 18 to .any subletting; Tenant's sole remedy shallbe specific performance. fir-.iny-aseignment.-f-thin e 19 cassignmentrshall=be-invalid-artless-the-assigner roya7landlerc3 for-to-the-assignment,-osy enses-Rsat4ue 20 tet a elaptre pari 21- 'caree( 22 ntage-Rent—poyabte•to 23 on t ie urtefapsetl; year oft sf friar betas 'Feat ail beaat�oeti�lrt tt "4srrtss 4iales iNse=sedueed_utthe-cants 24u I days ink vlatelags d?ertlart t# L rasa �Fsat baso v to-t}rsoe 3tandr 26 27 lt'ptivthsa: th 28 been sn:.rt'to 29 30 32 33 34 35 36 t e f e subtenant. a tchtditta%rtJtis purpose plc portion 4f flub Rent if any. based on a il*ed percentage nr 37 pe.reentagea of gross receipts .or arose a ]tt es. of the subtenant In`the.even Tema obtains Landlord's concent to 38 sublet the Leased Premises. and the amount of minimum rent and additional rent payable by the aublescee to 39 Tenant under the sublease hire °Sub Rent) exceeds the 5vgtepate of all Bay Rent, Percentage Rent. 'f.tx Reny Mi ommon Area Rea ,,. ;tG 1e b t a t t l .anti+r so , r s c r_ i °L R; e Ran 41 iscnartt obeli ororptly.remit'to Lan eatili month, due fix} _savable tis addit€otja 42 the eirnovnt of sub Rent and the. stno]lns of Losse Rent: in to event alian'rattan 43 inttrtaasie, hypothecate or otherwise eacumbei. tranysfer or tlisisosa of nil or any -sort nC rhis Vase or T tz}sits 44 leasehold astpte hereunder fcolleydjv•,)vreferred 'to as a n ter"j'with of tet ariv person or in any rse or r,•which 45 could cause apt' pertlon of the Rent elved by Land aid mrrattant to J,ease tr fail :to qualify as "rents_ftony 46 re property" within the meaning of aectlop- 856(d). of the .. .. `ev.a de of 'a. end 47 Code') or any similar or successor.. provision thereto or which would cause any oilier Income of Landlord to fail to 48 a ify'as income dcacrii ed in section '856(c1121 of the Codecand`any cinch Transfer shall be `veld.. con "T'. sant •te her _material default i n . .:nm .tt .fth. , d nuraose desnrllted:-in A Leased Premises 'for the Leased Prcutises..and Ten Landlord obeli not inrcast a. d' . er the Ltase .at ww :drag I jdlor4 shalt apt .unset na •: iii m aw ,w,uld le) fM1. If Tenant reets Landlord's consent to sublease the 1t tsrsr or :other material default un4ee the ranee at any time, nt PlOvide It 1(1 the.sgblessee uses the Leased Premises or the i s.a_• tai •all crista received orsect-ued lty Tet ssrsl ftp ttsubleasinX th Leasted..P emises isnot b 49 50 19. Surren,dergnd Holding Over. 51 52 (A) At the expiration or sooner termination of the tenancy hereby created, Tenant shall surrender 53 the Leased Premises in the same condition as the Leased Premises were in upon delivery of possession thereof to 54. Tenant, reasonable wear and tear excepted, and damage by unavoidable casualty excepted to the extent that the 55. same iii covered by Landlord's Property fnauranee polity, and Tenant shall surrender all keysfor the Leased 56 Premises to Landlord and shall Infbr'm Landlord of all combinations on locks, safes and vaults, if any, in the 57' Leased =Premises. '.Prior to the expiration, or sooner termination of this Lease, Tenant shah -remove any and all S8' traria fixtures, equipment and other unattached Renin which Tenant'rmey have Installed, stored or lest in the 59 Leased Premises or elsewhere in the Shopping Center, and Tenant shall not remove any plumbing or electrical 60 fixtures or equipment, heating or air conditioning equipment, floor coverings (including but not limited to wall -to - 61 wall carpeting), walls or ceilings, all of which shall be deemed to constitute a part of the freehold and/or leasehold 62 interest of Landlord, nor shall Tenant remove any fixtures or machinery that were furnished or paid for by 63' Landlord (whether initially installed or replaced). The Leased Premises shall be left in a broom -clean condition. If 64 Tenant shall fail to remove its trade fixtures or other property as provided in this Article 19, such fixtures and 65 other property not removed by Tenant shall be deemed abandoned by Tenant and at the option of Landlord shall 66 become the property of Landlord, or at Landlord's option may be removed by Landlord at Tenant's expense, or 67 placed in storage at Tenant's expense, or sold or otherwise disposed of, in which event the proceeds of such sale 68 or other disposition shall belong to Landlord. In the.event Tenant does not make any repairs as required by this 69 Article 19(A), Tenant shall be liable for and agrees to pay Landlord's costs and expenses in making such repairs. 70 Tenant's obligations and covenants under this Article 19(A) shall survive the expiration or termination of this 71 Lease. 72 '73 (B) If Tenant or anyone claiming under Tenant remains in possession of the Leased Premises after' 74 the expiration of the Lease Term, that person shall be a tenant at sufferance; and during such holding over, Base 75 Rent shall be twice the rate which was in effect immediately prior to the Lease Term expiration, which Landlord 76 may collect without admission that Tenant's estate is more than a tenancy at sufferance, and all the other 77 provisions of this Lease shall apply insofar as the same are applicable to a tenancy at sufferance. 7$. 79 20. No Waivers by Landlord. No waiver by Landlord of any breach by Tenant or requirement of 80 obtaining Landlord's consent shall be deemed a waiver of any other provision of this Lease or any subsequent 13 C:'sea\client\TEMP\Carlisle Coffee Company 1-4DJG9 Proj ID SPACI075.doc KE 5/10/2004 1 breach of the same provision or a waiver of any necessity for further consent. No payment by Tenant or 2. acceptance by Landlord of a lesser amount than due from Tenant shall be deemed to 'be anything but payment on 3 account, and Tenants payment of a lesser amount with a statement: that the lesser amount is payment in full 4 shall not be deemed an accord and satisfaction. Landlord may aecept;.the payment without prejudice to recover 55'- the balance due or pursue any other•remedy. Landlord may accept payments even after default by Tenant 6 without prejudice to subsequent or concurrent rights orremedies available to Landlord under. this Lease, at law or 7 in equity. Any acceptance by Landlord of any payment by Tenant after termination or expiration of the Lease 8 Term shall not constitute an acceptance of Rent but rather a payment to Landlord on account of Tenant's use and occupancy of the Leased Premises. All rights and remedies which Landlord may have under this Lease, at law or 10 in equity shall be distinct,•. separate and eurnnulativc and shall not be deemed inconsistent with each other, and 11 any or all of such rights and remedies maybe exercised at the same time. 12. 11 21. Rules -and .Regulations,. Tenant shall observe and comply with, and cause its employees, agents, 14 subtenants and coneeasionaires, and their employees and agents, to observe and comply with all reasonable rules 15: and regulations promulgated by Landlord by notice to Tenant; and such rules and regulations shall have the 16 same force and effect as if originally contained in this Lease. 17' 18 22. Failure of Performance by Tenant. If Tenant shall default under this Lease, Landlord may, at its 19 election, immediately or at any time thereafter, without waiving any claim for breath of agreement, and without 20 notice to Tenant cure ,such default or defaults for the account of Tenant, and the cost to Landlord thereof plus 21 interest at the Default Interest -Rate shall be deemed to be additional Rent and payable on demand. Tenant shall 22 : pay all reasonable attorneys' tees, costs and expenses incurred by Landlord in enforcing the provisions of this 23 Lease, suing to collect Rent or to recover possession of the Leased Premises, whether the lawsuit or other action 24 was commenced by Landlord or by Tenant. 25 26 23. Limitations on Landlord's Liability. 27 28 (A) "Tenant" includes the persons named expressly as Tenant and its transferees, successors and 29 assigns. Except as otherwise provided in the next sentence, the agreements and conditions contained in this 30 Lease shall be binding on and inure to the betle$t of.iile parties hereto and their transferees, legal representatives, 31 successors and assigns. "Landlord" means only the then -owner of the lessor's interest in this Lease, and in the 32 event of a transfer by Landlord of Its interest in this -Lease, the transferor shall be automatically released from all 33 liability and obligations as Landlord subsequent to the transfer. 35 (B) Notwithstanding anything to the contrary, Tenant agrees it will look solely to Landlord's 36 estate in the Shopping Center as the sole asset for collection of any claim, judgment or damages or enforcement of 37 any other judicial process requiring payment of money. Tenant agrees that no other assets of Landlord shall be 38 subject to levy, execution or other procedures to satisfy Tenant's rights or remedies. 39 40 24. • Miscellaneous Provisions. 4.1 42 (A) This Lease contains the entire agreement between the parties. No oral statements or 43 representations or written matter not contained in this Lease shall have any force or effect. This Lease cannot be 44modified or terminated orally, but only •by a writing signed by Landlord and Tenant, except for a termination 45 expressly permitted by this Lease. U more than one party executes this Lease as "Tenant", the liability of all such 46 signatories shall be joint and several. Neither this Lease nor any memorandum, assignment or memorandum of 47 -.mel i ntentthereof shall be recorded in: any public records without Landlord's prior written consent. Any 48 obligation of any prrraon:l9l;iall be performed at its sole cost and expense 'unless a contrary intent is expressly 49 stated herein, Each provision of this Lead shall be valid and enforced to the fullest extent permitted by law. 50 However, if any provision or the application thereof to any person or circumstance shall to any extent be declared 51 by a court to be invalid, the remainder of this Lease shall not be affected. If Tenant is not an individual, the 52 person signing this document on behalf of Tenant represents (by such signature) that he or she has been duly 53 authorized by Tenant to execute this document and that such signature creates a binding obligation of Tenant -54 55 (0) The term `Default Interest Rate" as used in this Lease shall mean Fifteen (15%) Percent per 56 annum or the maximum interest rate permitted by law, whichever is lower. 57 58 59 (C) Notwithstanding any other provision in this Lease, Landlord in its absolute discretion shall have the option at any time to relocate Tenant from the Leased Premises (the `Present Premises") into other 60 premises in the Shopping Center (the 'New Premises"). Landlord shall give Tenant at least forty-five (45) days 61 notice of the approximate date Tenant is to- move to the 'New Premises. Landlord shall prepare the New Premises 62 to the same extent that Landlord prepared the Present Premises. The New Premises will have at least the same 63, amount of square foot area as the Present Premises. Landlord shall pay for moving Tenant's inventory, fixtures, 64 equipment and storefront sign to the New Premises. Tenant shall cooperate with Landlord. Tenant will move its 65 business operations to the New Premises within forty-eight (48) hours alter Landlord notifies Tenant that it has 66 substantially completed its preparation of the New Premises. The New Premises will become the Leased Premises 67 (instead 'of the Present Premises) and the Rent (including all of Tenant's other monetary obligations to Landlord 68 under the Lease) and all the other terms and provisions of this Lease shall be transferred to and continue to 69 apply, without interruption, to the New Premises from and after the date Tenant is required to move pursuant to 70 this Article. 71 72 No ortnohla onnioti 73 the space to which Landlord itttejtds to relocate Tenant is pot comparable to the Present Premises, then Tenon 74 shalt hayei hea'ieht. As its sole and exclusive rcrnedv, to'teCttirlate the Leese on sixtv160) days prior writtennotice 75 to Landlord within thirty (30) days after: the data Tenant receives notice from Landlord that it must relocate. If 76 Tenant doesnot p•v'de i• . le. sen �.t.',,ax11be tri lo ei o9ace ..I dnrd'.' 77 notice, In the event Tenant elects to terminate the Lea. num this Article; Lan Qrd vieali have the option, 78 within thirty 130l days of receint:of (rl}: x r+tic V. an ate. in: its ice e' fix r orate. f. dlor�i 79 rescinds this re•Lc -t -.tai 's o ' c , erin', . t, a t :e n ifs 'and _ :e shall continue in ft;lj 80 girpc -orand effect. If Landlord does pot rescindits repo t to, reto vi'thin thirty (30). days of receipt of Tenngt 14 C:1sealciient\TEMPICarlisle Coffee Company 1-4DJG9 Proj II) SPAC1075.doc KE 5/10/2004 $ n«tl trrni 2 teritiiriiiuon rcfct d tb abi 4 g J:azidlard r '. " i 5: 24(C1.: Land/of-4, of alail l' tDvetirire lei sitzts'alls' zgpd'fi 6 the Present Premises are finished an of a datewI aizilhird i Vow Premisesova Te»aiit'a„trade tortures, carton,/sirri�'ityvantand ad .":i 'n •biat:nfs« . -tall ase itc;is ia;'the 9. 1:0 tietb (hdi 4ev nfter.•Latedlord's receitst'of Ten iiait s tt'otice of #D} T#te`sub nissioti. of dna Lea tir Tenant for• revises or xenant s slgn ettzro does not constitute a 11 reservation of, or option far: the Leased Promises or a' representation that the businesa terms have been approved 1'2 by "cxecutive'offic`era Of Landlord or:Landiord'a Boarii of- Directors:: This Lease shalt become effective as a lease or 1,3tigreemeent only upon matt nl ext cti ion and ;delivery, A lease:iahich:is.nor hilly' excottterl"and delivered cannot be 1; R enforced*any Mariner and •catirtot . C rise: to any'rights or remedies. 16 (E) The provisions of this Lease shall be construed; itiall reapccts, without refiicnce.to any rale or,. 17 czizton requirin Sr permitting the conatrttction of provisions of docitrztsnts against •the siiteressrsf the party 1s responsible for"tile drafting of the same It lasing the intention and agreement of the parties that this ;Lease 19, conoluefvely deemed to be the joint,product of;both parties and their counsel; frttrilierneore, the pariiea agree that:. 20 this Lease may be exeeutt d with revision markings #so, edified "l%lacklftttrig 1 appearing ut the t)itcuttori appy #te-, 21- deleteitlext is overses' nand newly inserted:iextis underscored or.in. boldfaee)t"stuc "birfeldhiI» shell oat tie 22 accorded any sigsaifioance ;o talrcii;into ace t in•atay way :this.Lease shall be oonstrued far all"purposes'aa ifnll 23`csverstricken text'wcre deleted and never:ineltutfcd in' this'Lease and all bou ld'or ndcrsebre i tett were natbold'er 24 underscored. 25 26' ' (F) Quiet Ealovment Landlord covenants 044. upon Tenant's,pggrncrit of she Eent"rsqudri zl 27 hereunder and its performance of all of;the ;tetras anti conditi s of'the ..caae,.Tetisrttts peicefttl iiiz`el quiet 28 enjoyment of the Leased Premises shall trot he disturbcri by Landlord tar:anyone properly claiming by,;.ti)rough- or 29 under Landlord. Notwithstanding the foregoing, this; pmvfcfon as subject to•:all mortgegir s,, •encumbranees; 30 easements and underlying leases to which this Lease tray be ar becomsu e bordinate. 31 32 25' t7navoldablo Delays Where either party,heret•o"is requirek,to do, any set. but Il untimely• • 33 completing the act„ (ha tune attributable directly to delays caused by, an Act of God, hurncatee tornado, r 1n,. 34 snow, cold or ether weather, •war, civil cotrtmotion „Ore ar other eastfalty,.labor dillicultiea or;tihortages 35znatFrlala or equj inotit,.govetritrtentzeguiatdona nr other causeaiieyond aitch partysreasonable control shall. not 36 be counted ha determining''khe tirixe�during,which such act is=to be completed: In any case ;where workcta ta'6e 37 paid for'out of meurance praceede.,or.condemnation.awards, due allowance shall be made, for delays in the 38. collection of sucli=.proceeds-and ateaids, The :provislonscof this Article,ahall not be applicable at all to:exctxse or 3 perrztit delay of:the time :for Tenant;to Qty Rent or otllar'moncy isr to obtain and maintain insurance policies. if • 40•, Landlord is unable to deliver the,J.cased Pretsilses try'the cud of'one (ij year alter lsndkirdd's.execution of this 41 Lease, {.hen either party ,y terminate this lease try givii g thirty'f30) days. written notice to"the.other at any time :-42 42 prior.to tender 44 2G: • 13ofez'Ittratceyy leastit represents;t at rico broker, IIudero ,,r other person entit• ied.to.compensation 45 #ether than the Broker idciatifiai as?1tr#lela 1).*aa. irzvtiilved in this Lcase,vand th>zt.no conversations or prior 46 negotlat ons were had with any broker under or it'titer jadstdble;claimantiritic,tiian the Broker concerning the: 47 refit* `Of the Leased liretilisra Tenant shall:defend, 9iideaitilfjratnd bold,,Landlord harmless`agaittst any:claims 48, tar•compansatian (includltag Legalfeats. frieurred by te: d erd) arislsig out of any conveeiations or negotiatiuias li• ed Sit #y.`l eriarit`wlEh' anpime cortico thaxi tide Broker. 51 .27. Estoppel Certificates. From time to time, within ted (10) day f llowing iyritteri notirxe, Tenant shall. 52 deliver to Landlord a signed and acknowledged written statamentcertifying: the date'of this Lease and•that:this 53 Lease is in full force and effect and unmgdified'except tie stated .tile iaonthty Base Reii't payable'during the Lease `54 Term;the date `to whish •the Rent` and other,payoietns have :ber11 paid; :.whether 55 Landlord is in default, or if there areeay offsets, defenses or couiiterelainta claimed by Tenants, and'if a default; 56 offset, defense, or counterclaim is tlaimod,,sl eeriying the spcellic natured d default;: and stating•any, additional 57 matters requested by Landlord or a mortgagee. S$ 19. 28. 8$opplatt Center Cheju es.• Neither Exhibit A nor. this Lease is a warranty by Landlord that the 611 Shopping Center Wilt remand•as shown: Landlord may relocate, increase, reduce or otherwise change the number, 61;: dimensions, or locations of :the' parking<aueas,• drivel; exits, entrances, walks and other Common Areas or 62 buildings. If Landlord desires to modernize the facade of the Shopping Center, Tenant shall, upon request of 63' Landlord, install a new exterior sign and improve its storefront, following the design of Landlord's architect. 4 Landlord reserves the:right to use. portions of the Common Area.for construction -related activities and to erect ,65: temporary scaffolding in, front of the Leased Premises. Tenant waivea any. claim for rent abatement, loss of :66 business or damages arising out of any reasonable and temporary inconvenience allegedly experienced by Tenant 67 during the course of any alteration, improvement or modernization, or during any repair activities in which ;68 Landlord Is engaged, #): 29. Notices. All notices intended to impose liability on the other party or exercise a right ("Notice") shall 71> be in writing and sent by certified or registered mail, return receipt requested, or delivered by a nationally 72 recognized overnight courier (such as Federal Express or UPS) and in order to be effective a copy of any notice of 13' Landlord's default must be sent by Tenant to the holders of any mortgages, ground leases or security interests as 74, per Article 16(C). Notices shall be sent to the address set forth in Article 1 or to such other address as may be 75' designated by notice. Notices shall be effective the day after the notice was sent, or if by courier delivery, the day 76' delivered. The purported giving of notice or exercise by Tenant of any right, option or privilege by any means 7.7,; other than written notice given in strict compliance with this Article shall be null, void and of no force or effect, even if any such other means of communication succeeds in conveying actual notice, If courier delivery is refused 79 or not able to be made, the day delivery was first attempted shall be deemed the delivery date. 60. 15 C:\sea\client\TEMP\Carlisle Coffee Company 1-4D1G9 Proj ED SPAC1075.doe KE 5/10/2004 (END OF RIDER A) SEE RIDER B ATTACHED HERETO AND HEREBY MADE A PART OF THIS LEASE. 16 C:).sea \client\TEMP \Carlisle Coffee Company 1-4D109 Proj ID SPAC1075.doc KE 5/10/2004 RIDER B 30. Notwithstanding anything provided herein, if there is any discrepancy between Rider "A" and Rider "B", Rider "B" shall prevail. 31. Sign Criteria - Reference to Article 10(D) (A) Tenant shall be rtequired.to design and install et its sole cost and expense an illuminated individual channel letter sign on the exterior face of the Tenant's storefront. Tenant must obtain Landlord's written approval of Its sign design drawings prior to the fabrication and Installation of Tenant's sign, The drawings must: include the dimensions, color, style and types of materials to be used. The sign shall be placed in the area in such a manner that It does not extend above the parapet or facade and does not exceed 2/3 of Tenant's storefront. The plans and permits for, and the installation of, Tenant's sign shall all be at Tenant's solo cost and expense. The sign shall be governed by all applicable provisions of this Lease, including, but not limited to, Tenant's duty to repair (Article 10) and insure. (Article 11);the sign,: The sign shell be:subject to all; governmental authorities' codes and restrictions;. (B) Upon the expiration or sooner termination of this Lease, Tenant shall remove its sign and restore the sign band/fascia to Its original condition, 32. Utility Deregulation. (A)'Laridlord Coptrols Selsctlon. Landlord end Tenant acknowiedge.that new utility deregulation may allow- Landlord to change electric service providers tribe futons. If such - deregulation goes Into effect, Landlord shaft have the right at any time and from time to lime: ::during the Lease `Term. to either (I) ,contract for service from e. different: company or companies providing electricity service (each such company shell heretnafler be r iferredto as an Altornate Service Provider") or (U) continue to contract for service from the :present: electric utility company (the "Electric•Seivlce Provider'). in the event that the entire 4116.0410'r.Center is required; to. be serviced by the -Alternate Service- Provider,• 'Tenant =agrees to contract for• service from the Alternate -Service. Provider.: • (B)Tenant'Shall Give.Lapdiord Access, Tenant shall cooperate•tvlth•Landlord, the Electric Service Provider, and any. Alternate. Service: Provider, at all times as reasonably necessary, and allow the foregoing to have. reasonable:access to any and all electric linea, - feeders,;risers, wiring, and any:ottier machinery within the Leased Premises,. -,(C)'t:andlord`Net Responsible for interruntion of Service. Landlordshall net be• liableer responsible for any toss,. -damage, or expense -that Tenant may sustain or Incur; by mason of any change; failure, Interference, disruption, ordefect'In the. supply or character Of the electric energy furnished to the Leased Premises,;or if the.quantity or character cif the electric.. energy supplied- by the Electric Service Provider or any Alternate Service Provider is• no tonger available: orsuitable-for Tenants requirements, andno•such change, failure, defe0, unavailability, ;or unsuitability shall constitute .an actual or constructive eviction, in whole or in part, or entitle Tenant to any abatement or diminution of rent, or relieve Tenant from any of its obligations under the Lease. 33. PLANS AND SPECIFICATIONS. (A) in the event Tenant desires to perform any work, or make any alterations or modifications in and to the Leased Premises (other than installation of shelves, painting and carpeting, and other similar interior non-structural minor cosmetic changes), or in the event Tenant desires to perform any work in the Leased Premises which requires the submittal of plans to the municipality and/or requires municipal permits and approvals, Tenant shall submit to Landlord, for Landlord's. written approval the following Items (hereinafter collectively referred to as "Required'Items'): 1. Complete detailed drawings, and speclfications in sufficient detail for Tenant to obtain all necessary building permits (hereinafter collectively referred to as "Plans") for all the work to be done by Tenant to the Leased Premises. Each of Tenant's Plans submissions shall include two sets of full-size construction drawings and specifications, as well as one set of computerized construction drawings saved on 3.5" diskettes in .DWG or .DXF file format. 17 Cavea\client\TEMP\Carlisle Coffee Company 1-4DIG9 Proj ID SPAC1075.doc KB 5/10/2004 2. A contractors "Payment and Performance Bond" in favor of Landlord as obligee, in form approved by Landlord, issued by a surety company satisfactory to Landlord, guaranteeing completion of Tenant's work in accordance with the Plans free of liens and security agreements. 3. A comprehensive general liability insurance policy from Tenant's contractor's Insurer (with a rating of not less than A-8)naming Landlord' as additional insured for at least $3,000,000 combined single limit far bodily Injury and. property damage and contractor's Workers' Compensation and Occupational Disease insurance with statutory limits end employer's liability with a limit of at least. $1,000,000. 4. The general contractors written indemnity agreement in the form attached hereto as Exhibit "B-1" that the contractor shall Indemnify, defend, save end hold harmless Landlord, its mortgagee, agents, employees and .assigns, from all liabilities, claims, losses, liens, damages and sults of whatsoever nature for personal injury, death or property damage alleged to arise out of the work performed under the contract, whether by contractor or by any subcontractor, and whether asserted against Landlord or contractor. (B) Landlord shall inform Tenant of any objections to the Required Items within thirty (30) days after receipt of all such items. If•Tenant falls to deliver any of the Required items timely, then Landlord shall have the right to terminate this Lease and retain the Tenant's entire security deposit as liquidated damages. Furthermore, Landlord shall have no obligation to review Tenant's Plans unless and until Landlord is In receipt of all Required Items. Tenant, within fifteen (15) days of receiving Landlord's objections to the Required Items, shall deliver to Landlord corrected Required items, which Landlord shall accept or reject within the next fifteen (15) days. (C) Tenant must obtain. Landlord's written approval of all Required Items prior to Commencing any of its work at the Leased Premises. Landlord's approval of Tenant's Plans shall not constitute an affirmation by Landlord that they conform to law or Impose any liability on Landlord. Upon Landlord's approval of the Required Items Tenant shall immediately apply for all permits necessary for its work. After the permits are issued and Landlord has completed the work, If any, that It has specifically agreed In this Leese to do, Tenant shall promptly commence and complete Tenant's work In conformity with the Plans, building department requirements end all relevant laws and regulations. (D) Tenant shall comply with all legal requirements during its work and, when completed, Tenant's work must comply with all laws, ordinances, regulations or orders of public authority, and with the requirements of the appropriate Fire Insurance Rating Organization and Landlord's Insurance company. Prior to opening:: for business, Tenant shag obtain and deliver to Landlord: (a) Tenant's affidavit that all work, labor and materials have been paid for, (b) final lien waivers, as well as paid Invoices or statements, from ell contractors and subcontractors who performed work at the Leased Premises and all materiaimen and suppliers who provided materials and/or equipment used in connection with Tenant's work at'the Leased Premises, and (c) a copy of the certificate of occupancy (or its local equivalent) for the Leased Premises. If a temporary Certificate of Occupancy is issued; Tenant shall deliver a copy of that document to Landlord and then, upon issuance of a:perrn.anent Certificate of Occupancy, Immediately forward a copy of itto Landlord. (E) If Landlord or Its representative inspects the Leased Premises and determines that Tenant's work is not being done in accordance with the approved Plans, Tenant shall correct any deficiencies or omissions immediately. (F) Tenant shall not permit any mechanic's or other lien to be fiied either against the Leased Premises or the Shopping Center or Tenant's leasehold Interest by reason of .work, labor,: services or materials supplied. If any lien is filed, Tenant shall, within ten (10) days after notice of the filing; cause it to be discharged of record, failing which Landlord, in addition to any other right or remedy, may. (but shall not be obligated to) discharge such lienby deposit, bonding proceedings; or by; payment of the claimed amount for Tenant's account. Any amounts so paid, together with interest at the Default Interest Rate from the date of payment, shall be paid by Tenant to Landlord on demand as additional Rent. Nothing herein shall be construed as the consent or request of Landlord to 18 C:\sea\client\TEMP\Carlisle Coffcc Compauy 1-4DIG9 Proj ID SPAC1075.doc ICE 5/10/2004 any contractor, subcontractor, laborer or materialman to perform work or furnish materials. Furthermore,.nothing herein shall give Tenant the authority to contract for•or permit the rendering of any service or furnishing of any material that could give rise to the filing of any lien. (G) Tenant shall require Its contractor to furnish to both Tenant and Landlord on completion of the work a guaranty, for.a period done (1) year from final coinpletion of all work, that all Work and materials MI be free from all defects and that all apparatus (e.g., air-conditioning equipment) will develop capacities and characteristics specified in the approved Plans upon use, and that whenever within one (1) year of the final acceptance of the work, contractor Is notified In writing by either Landlord or Tenant that any equipment, material or workmanship is defective or in some way does not meet specifications, contractor shell inimediately replace, repair or, otherwise Correct the defect or deficiency without cost to Landlord. Additionally, the following items shall be guaranteed for periods In excess of the one (1) year: Motor Compressor Units - five (5) years; Exterior Walls - two (2),years (guaranteed against air and moisture teakege); .R.eOfing - two (2) years. (H) In the. event Tenant's work Invoives the construction of a demising wall; Tenant dhoti physically Indicate the proposed location of the demising wall on the floor of the Leased Premises, notify Landlord's architect that the iodation has been marked and that construction of the wall is about to begin, and give Landlord's 'architect a reasonable opportunity to come to the Leased Premises and inspect the proposed placement of the wall. (I) For any Tenant Work that involves penetration of the robf surface, Tenant shall employ Landlord's roofing contractor, thereby ensuring that the roofing bond and/or warranty will remain in full force and effect The maintenance of Tenant's roof work will be the sole responsibility of Tenant and shall Include the repair of adjoining areas' that might have been affected due to water penetration through Tenanes roof work. (.1) In the event Tenant must obtain a zoning variance, Waiver or other change In order to use the Leased Premises for the purposes described in Article 1(M), or for any Work Tenant desires to perform at the Leased Premises, Tenant shall first obtain Landlord's written approval, not be Un'reasonablyWithhiald'er'delayed, prior to seeking such a Change. If Landlord's consent is given, Landlord agrees to cooperate with Tenant in suck 'application and Tenant agrees to: (I) keep Landlord advised of all developments is 'they occur, (II) provide Landlord with an opportunity to review all documents before they are filed, and (ill) give Landlord a reasonable amount of mike before any hearings are held so that Landlord's representative shell have an opportunity to attend. Tenant shall not be permitted to enter Into any agreements that affect the use, access, or condition of the Shopping Center without first obtaining Landlord's written consent, and any attempt to do so shall constitute a default under the Lease, 34, Option to Extend Lease. (A) Provided Tenant' is not In default under any"provision of the Lease and has faithfully.perfomwd the terms or conditions Of the Lease and Tenant Is In actual physical possession of all of the Leased Premises (and operating and open for business as contemplated by this Lease, in all of the Leased Premises) Tenant shall have the right to extend the term of this Lease as set forth in Article 1 (the lOriginal Term") for one additional period of three-(3)flve (§) years Oho "Additional Temr) commencing uPdn the expiration of the Original Term, provided that Tenant shall. give- Landlord written notice of such election at (east one (1) year prior to the expiration of Original Tenn. TIME IS OF 1-1E ESSENCE WITH RESPECT TO THIS ARTICLE. Such notice of election 'to extend the term of the Lease shall be Irrevocable. Except as expressly otherwise provided herein, the Additional Term hall be upon all of the territs and conditions of the Lease except that any articles which were Intended to be one time, initial provisions or concessions (such as free Rent, Landlord Work, or a Tenant improvement allowance) shall be deemed to have been satisfied and shall not apply to the Additional Term. Also, there Is no option to further extend the Term of the Lease beyond the. expiration date of -the Additional Term, (B) Option Base Rent. In the event Tenant exercises its option to extend the, Term of the Lease as provided abeve, the annual Base Rent during each 'Lease Year of the Additional Term shall be as set forth In Article 1(H)(1). 19 CAsca \client\TEMP \Carlisle Coffin Company 1-4E409 Proj ID SPAC1075.doc KB 5/10/2004 35, (A) POWER TO. CONFESS JUDGMENT: TENANT HEREBY AUTHORIZES AND EMPOWERS THE PROTHONOTARY OR ANY ATTORNEY OF ANY COURT OF RECORD WITHIN THE COMMONWEALTH OF PENNSYLVANIA OR ELSEWHERE TO. APPEAR FOR TENANT, AND, WITH OR WITHOUT DECLARATION FILED, CONFESS JUDGMENT AGAINST TENANT AND IN FAVOR OF LANDLORD, AS OF ANY TERM, FOR THE UNPAID OBLIGATIONS HEREUNDER, INCLUDING. WITHOUT LIMITATION ALL ACCRUED AND UNPAID INTEREST CHARGES, RENTS OR OTHER CHARGES PAYABLE HEREUNDER, WHETHER BY ACCELERATION OR OTHERWISE, WITH COSTS OF SUIT AND A REASONABLE ATTORNEY'S COMMISSION OF FIFTEEN (15%) PERCENT,, WITH RELEASE OF ALL ERRORS, WAIVING ALL LAWS EXEMPTING REAL OR PERSONAL PROPERTY FROM EXECUTION, TO THE EXTENT THAT SUCH LAWS MAY LAWFULLY BE WAIVED. NO SINGLE EXERCISE OF THE FOREGOING POWER TO CONFESS JUDGMENT SHALL BE DEEMED TO EXHAUST THE -POWER, WHETHER OR NOT ANY SUCH EXERCISE SHALL BE HELD 13Y ANY COURT TO BE VALID, VOIDABLE, OR VOID, BUT THE POWER SHALL CONTINUE UNDIMINISHED AND IT MAY BE EXERCISED FROM TIME TO -TIME AND AS. OFTEN AS LANDLORD SHALL ELECT, UNTIL SUCH TIME. AS ALL OBLIGATIONS HEREUNDER SHALL HAVE BEEN SATISFIED. WHEN THIS LEASE SHALL HAVE EXPIRED OR BE TERMINATED BY REASON OF THE BREACH OF ANY PROVISION HEREOF, IT SHALL BE LAWFUL FOR ANY PROTHONOTARY OR ANY ATTORNEY OF ANY COURT OF RECORD WITHIN THE COMMONWEALTH OF PENNSYLVANIA TO APPEAR FOR TENANT TO FILE AN AGREEMENT FOR ENTERING IN ANY COURT OF COMPETENT JURISDICTION AN AMICABLE ACTION FOR CONFESSION OF JUDGMENT IN EJECTMENT AGAINST TENANT AND ALL PERSONS CLAIMING UNDER TENANT FOR THE RECOVERY BY LANDLORD OF POSSESSION OF THE LEASED PREMISES, FOR WHICH THIS LEASE OR A 'TRUE AND CORRECT COPY THEREOF SHALL BE A SUFFICIENT WARRANT, WHEREUPON, IF LANDLORD SO DESIRES, A WRIT OF POSSESSION MAY ISSUE FORTHWITH, WITHOUT ANY PRIOR WRIT OR PROCEEDINGS WHATSOEVER, 'AND PROVIDED THAT IF FOR ANY REASON AFTER SUCH ACTION SHALL HAVE BEEN COMMENCED THE SAME SHALL BE TERMINATED AND POSSESSION REMAIN IN OR BE RESTORED TO TENANT, LANDLORD SHALL HAVE THE RIGHT UPON ANY SUBSEQUENT DEFAULT. OR DEFAULTS, OR UPON THE TERMINATION OR EXPIRATION OF THIS LEASE AS HEREINBEFORE SET FORTH, TO BRING ONE OR MORE AMICABLE ACTION OR ACTIONS AS HEREINBEFORE SET FORTH TO RECOVER POSSESSION BY CONFESSION OF JUDGMENT AS AFORESAID. - NO 'SINGLE EXERCISE OF THE FOREGOING POWER TO CONFESS JUDGMENT SHALL BE DEEMED TO EXHAUST THAT POWER, WHETHER OR NOT ANY SUCH EXERCISE.SHALL BE HELD BY ANY COURT TO BE VALID, VOIDABLE OR VOID, BUT THE POWER SHALL CONTINUE UNDIMINISHED AND IT MAY BE EXERCISED FROM TIME TO TIME AND AS OFTEN AS LANDLORD SHALL ELECT. . ' " ' ' BY SIGNING THIS INSTRUMENT, TENANT HEREBY ACKNOWLEDGES THAT TENANT HAS READ THIS LEASE (INCLUDING WITHOUT LIMITATION THE CONFESSIONS SET FORTH HEREIN), HAS HAD THE OPPORTUNITY TO HAVE THE SAME REVIEWED BY LEGAL COUNSEL, UNDERSTANDS THE SAME, AND AGREES TO THE PROVISIONS CONTAINED HEREIN, INCLUDING WITHOUT LIMITATION THE CONFESSION OF JUDGMENT PROVISIONS AND UNDERSTANDS THAT A CONFESSION OF JUDGMENT CONSTITUTES A WAIVER OF RIGHTS TENANT OTHERWISE WOULD HAVE TO PRIOR NOTICE AND A HEARING BEFORE A JUDGMENT IS ENTERED AGAINST TENANT AND WHICH MAY RESULT IN A COURT JUDGMENT AGAINST TENANT WITHOUT PRIOR NOTICE OR HEARING AND 20 CKsea\client\TEMP\Carlisle Coffee Company 1-4DJG9 Proj ID SPAC1075.doc KE 5/I0/2004 THAT THE OBLIGATIONS MAY BE COLLECTED FROM TENANT REGARDLESS OF ANY CLAIM TENANT MAY HAVE AGAINST LANDLORD OR OTHERWISE. Initial Here Tenant 111#14. (B) POWER TO.. EXECUTE ON A JUDGMENT WITHOUT HEARING: TENANT HEREBY AUTHORIZES AND EMPOWERS THE PROTHONOTARY OR ANY ATTORNEY OF ANY COURT OF RECORD OR THE SHERIFF (OR THE LAWFUL DESIGNEE OF THE SHERIFF) WITHIN ANY COUNTY OF THE COMMONWEALTH OF PENNSYLVANIA OR ELSEWHERE, TO TAKE ALL ACTION ALLOWED BY OR PROVIDED FOR IN THE PENNSYLVANIA RULES OF CML PROCEDURE OR OTHER APPLICABLE RULES OF CIVIL PROCEDURE TO EXECUTE ON ANY JUDGMENT ENTERED AGAINST TENANT PURSUANT TO ONE OR BOTH CONFESSIONS OF JUDGMENT SET FORTH ABOVE WITHOUT PRIOR NOTICE OR HEARING OF ANY NATURE WHATSOEVER, WAIVING ALL LAWS • EXEMPTING REAL OR PERSONAL PROPERTY FROM EXECUTION TO THE EXTENT THAT SUCH LAWS MAY LAWFULLY BE WAIVED. NO SINGLE EXERCISE OF THE FOREGOING POWER TO EXECUTE ON JUDGMENTS WITHOUT A HEARING SHALL BE DEEMED TO EXHAUST THE POWER, WHETHER OR NOT ANY SUCH EXERCISE SHALL BE HELD BY ANY COURT TO BE VALID, VOIDABLE OR VOID, BUT THE POWER SHALL CONTINUE UNDIMINISHED AND IT MAY BE EXERCISED FROM TIME TO TIME AS OFTEN AS LANDLORD MAY ELECT. 36. Waiirer`df:Stattitor' Notice to Quit: In addition to all other waivers provided in this Lease; Tenant herebywatves ary'and all benefits provided to tenants, to the fullest extent provided by law, conferred on tenants pursuant to the Pennsylvania Landlord and Tenant Act of 1951 (68 P.S. §250.501) as the same may be amended or supplemented from time to time Including, without limitation, the statutory right to receive notices to quit In the case of default by Tenant under this Lease. See Article 15 of the Lease. 37. HVAC. Notwithstanding anything contained in Articles 7 and 10, if: I) the HVAC system fails to operate during the ten (10) days following the date Landlord tenders the Leased Premises to Tenant; Ii) the failure is not due to an act or omission of Tenant or Its agents, employees or contractors; and Ili) Landlord receives written notice from Tenant within three days of the failure, Landlord shall restore the system to operating condition. After the ten (10) day period, Tenant shall have full responsibility with respect to the HVAC system. END OF RIDER B 21 C:\sea\client\TEMP\Carlisle Coffee Company 1-4D3G9 Proj ID SPAC1075.doc KE 5/10/2004 do Cedar Shopping Centers, Inc. 44 South Bayles Avenue Suite 304 Port Washington, New York 11050 Attention: Brenda J. Walker With an additional copy sent to: Cedar-Stonehedge, LP c/O Cedar Shopping Centers; inc. 44 South Bayles Avenue Suite -304 Port Washington; New Y1:4.11050 Attention: Stuart Widowski, Esq. (iii) Article 10(D) of the Lease ("Signs; Painting; Displays) is hereby modified by adding the following language: Upon the execution and delivery of this Agreement, Tenant shall have the right to install, at Tenant's sole cost and expense, signage on any existing pylon sign, subject to availability and Landlord's (and any required governmental) prior approval of such sign, and provided Tenant agrees to pay its proportionate -share of the repair, maintenance and utilities for such pylon and the entire cost of the manufacture and installation of Tomas sign panel. Tenant shall utilize a signage vendor previously approved by Landlord and shall minimize, in a commercially reasonable manner, all work at or upon the pylon so as to limit obstruction of other signage. Tenant shall not damage, mar, obstruct or otherwise interfere with the visibility of other tenant's signage panels in the pylon. Tenant's signage Vendor shall provide Landlord with proof of insurance in a form and in amounts reasonably acceptable to Landlord pilot to commencing any work or installations at the Shopping Center. Tenant covenants and agrees to indemnit save and hold harmless Landlord from and against any and all claims or demands for damages or injury to persons or property or for loss of life including but not limited to any and all claims or demands of Tenant, its agents; employees, licensees, customers and assigns and including but not limited to any and all claims arising from or related to' any violation by Tenant of any law, ordinance or statue; any action or other occurrencedue directly or indirectly to the use of the pylon sign by Tenant, its agents, employees, licensee, invitees and assigns; and/or Tenant's failure to comply with the terms and conditions of this Agreement. (iv) Landlord acknowledges and agrees that Tenant may elect to operate wider the trade name of "Carlisle Coffee & Smoothie Cafe" (the "Trade Name"). 3 EXHIBIT "1" Authorization Agreement for Direct Debit CHASE AUTHORIZATION AGREEMENT FOR DIRECT DEBIT COWANYNAMB • COMPANY ID NUMBER I (We) authorize above named company to initiate debit entries to my (our) account with the depository named below. If the company erroneously debited funds from my (our) account I (we) authorize the company to initiate the necessary credit entries not to exceed the total of the original amount debited for the entry in question. DEPOSITORY NAME (PENTANCIAL(13—AN_R.) INSTITUTION) Ma &Nig SAVINGS & LOAN CITY STATE ZIP, ea/13k PA /rog TRANSIT/ABA NUMBER O S I 36 a95.3 CHECKINGSAVINGS ACCOUNT ACCOUNT K ACCOUNT NUMBER clt s61- 19 This authorization authorization will remain in effect until the company has received written notification from me (or either of us) at the address listed below/above that is to be terminated in such time and manner for the company to act on it. I (or either of us) have thriaight to atop payment•of a debit entry by /unification to my Depository 3 business days before my ameba is charged. After account haa been charged, I have The right to have the amours of an erroneouc debit immediately credited to my accrue by depository, provided I (we) send written notice of such debit entry in error to depository within Mean days rolloreing issuance of the account statement or 60 days after posting whichever occurs firSt. NAME(S) tn. gratt A41-rs , . . ADDRESSCITY COD i -I apt"' cArlisk teply bar, STATE PA ZIP le)/3 TELEPHONE V -7 --ago --6 36q SIGNATURE It A'Ac4c-Anki,_ DATE 6AI /0z/ .5„ .5/* 93 k_hdfdP. Dire: :03110 29551r 'go nit 98367lic190711•009 3 rseawnentu bmmarlisie Coffee company 1-4D.109 Proj ID SPAC1075.doc KR 5/10/2004 GNED PD: 4/9/04) EXHIBIT A Thu site 099 19 intended to be an ap roinmate deepp et on di the Shoppnrn Center. No enita4ch or wbrrartty o made -r , respect tbthc 2cDut loeabon, number or cons9uratroii 4Qf tknrdm4n Curb Cu s within ng Thorougntares, J ai1sng.Mea i d s e tticaarns. or of the rightto Ionian change to be the Shopping Ce It he 9h a Landlords hm a to timeee the : any tune Lan ord desiresnd.conhyyurand of the 9hbppin Cen irony time to and at arty, unto the. m rd enoe s m"its 9oie and *solute dseretron; or is is re V Ped_to conform" taloa! l GoUermng nrjerro , The leased premises shall be the area identified below. IRON wouog )nulem 0 0)a) 0 CO Stonehedge Drive West RIM NAM 0111 S. L(V,Cbtpaut[vn Site N 1075 EXhIBIT A 23 C:\sea\clicnt\TEMP1Carlisle Coffee Company 1-4DJG9 Proj ID SPAC1075.doc KE 5/10/2004 EXHIBIT "B-1" INDEMNITY AGREEMENT This INDEMNITY AGREEMENT pertains to work to be performed at the Stonehedge Square and located in Carlisle, PA, herein referred to as "Shopping Center (Kimco Project ID No. SPAC1075) By (herein referred to as "Contractor"). having an address at: and is part of the Contract with address at (herein referred to as 'Tenant"), having an which Contract is dated' Center from approximately , for work to be done at the Shopping through Contractor acknowledges that Tenant Is contractually obligated to Obtain this Agreenient under a lease for its store at the Shopping Center. 'Contractor has entered into this. Agreement In order to induce Tenant to retain .Contractor to perform certain work at its store. :Conte -der hereby agrees to INDEMNIFYSAVE& HOLD HARMLESS Stonehedge Center and Kimco Realty Corporation, hereinafter collectively 'referred to as LandlOrd, reap/active agents and eMployeeS, aSsigns, end architects of .and from ail liabilities,clalms - tosses; ilemage.S,-Irthiry, causes of actions and.sults of whatever nature for personal Injury, including death, and. kr property damage, arising out ofor alleged to arise out of, or arty conditions of, the work performed under this Contract,- whether by Contractor or by Or sub -contractor, and whether any claim, cause of action, or suit Is asserted against Landlord amts agents and"emPloyees, assigns, and architects, or Contractor, severally, Jointly; or Jointly and, severally. Contractor hereby agrees to INDEMNIFY, SAVE & HOLD HARMLESSLandlOrd„ Its agents and employees, assigns, .and architects of and: from any and all costs of any nature, including without limitation inveStigation, adjustment; 'attorney% fees,:expert's fees, court costs, administrative costa, and other items of expense arising out of any claim, Cause of action oreOlt of the kind and natirrefterein set forth, Neither Contractor nor any sub-contractorshall file any. mechanic's; Materialmen's,- or other liens. dither against the Leased Premises or thirShopping Center from. any Work, labor,, services or materials- Supplied or performed by Contractor or by any subcontractor. COrittactornereby agrees to INDEMNIFY,SAVE& HOLO HARMLESS Landlord. Rsagents and employees, atsigns, and .archIteCts of and from any and alt caste of any nature; .inCluding without limitation investigation, adjustment, attorney's fees, experts fees; court costs, administrative costs', and other Roma of expense arising out of any mechanic's, materialmen's, 'or other flens filed against the either againstthe Leased Promises Or the- ShOpplrig 'Centerby COntractor Or by any sub-contractOr. Contractor hereby agrees that It will obtain Comprehensive General Liability Insurance including Blanket Contractual Liability with minimum amount of $3,000,000.00 Combined Single Limit for bodily injury and property damage. Additionally, Contriclor rtitist ,:also 'obtain Workers Compensation and Occupational Disease insurance with:statutory IlMite'and form es required by the State In which the work Is to be performed, and Employer's: Llability.with a limit of not less than $1,000,000.00 for all damage. Certificates for all insurance will be submitted to Landlord before commencement of any work. The Certificates must Indicate that the "HOLD HARMLESS AGREEMENT' 24 C:\cadlient\TEMP\Calis1e Cottee Compaoy.1-4D309 Proj ID SPACI075.doc KB 5/10/2004 • contractual indemnity. as set forth in this agreementisinsured. Landlord must be named ai*f,additidnii insured aidthe pollqy IT1.4.privicip)1)ting*4417iOril§Ay0 004ijoi 10i;*Ij0t*tu:6Wtettfiogtet .**1000d.pott, the the event ,ot,Ceocettaft00,0 the poflcles or 8 to,040.0901*1.1*tittfit$,O, 1100110e$,:pat'f0f6i,a6Mik,-, .„A7t odidtd411.h a-tit4i'ap-domp1ete copy tAonylnsuran ceHpotroy ,La 416id4ititi'f&*fieVik, NOirtypio*I000yty.**Nap*:110nOt.0.-tilet..!st.W.Cpttjf1:0#0s of InOtaocelor (h0, ijOS,r1frociOtt,4)titid teen Pled giMetYftiiittv;44.0dtord t3'33 Ne Hyd Park Road, 4010,140iHsittpRiotki,NY .110424,no201: ContMctor0,1.01040-CfevAtit LandltiftldidoptretwhcCartt -tp perform any work at the ShOppingOaater and fagreaS that Contractcwwiltnot took tattillord for any compensation wt0.0.0P. vOrt„QT On,,Y*401 performs at.th0 th0-001376-04: IN WITNESS HEREOF, this Contractor has executed this Agreement this day of 260_. CONTRACTOR: Name: 25 C: \sea \client \TEMP \Carlisle Coffee Company 1-4D1G9 Proj ID SPACI075.doc KE 5/10/2004 Assignment and Assumption of Lease and Security Deposit ASSIGNMENT AND ASSUMPTION AGREEMENT ("Assignment Agreement") made this 31st day of December , 200. 7, between CARLISLE COFFEE COMPANY, INC. (the "Assignor"), a corporation, and BRADLEY L. ELINE and SUSAN P. ELINE, jointly and severally (the "Assignee"), adult individuals with an address of 225 Penn Street, Hanover, Pennsylvania 17331. WITNESSETH: WHEREAS, Assignor is the tenant under that certain lease dated April 8, 2004 by and between Stonehedge Center LLC, as landlord, predecessor in interest to Cedar-Stonehedge, LLC (the "Landlord"), and Assignor, as tenant (said lease agreement is hereinafter referred to as the "Lease") for certain premises located at Stonehedge Square, 950 Walnut Bottom Road, Carlisle, Pennsylvania 17013 (the "Shopping Center") all as more particularly described in the Lease (the "Premises"); and WHEREAS, pursuant to the Lease, Landlord is presently holding a security deposit in the amount of $5,646.68 ("Security Deposit"); and WHEREAS, pursuant to a purchase and sale agreement ("Agreement"), dated 12/31/07 . between Assignor, as seller, and Assignee, as purchaser, Assignor agreed inter glia to assign the Lease and Security Deposit to Assignee on the closing date ("Closing, Date") set forth in the Agreement, and Assignee agreed to assume the obligations of Assignor thereafter under the Lease, according to the terms hereinafter set forth; NOW, THEREFORE, it is agreed: 1. Assignor hereby assigns, transfers, releases and sets over unto Assignee without recourse, except as expressly set forth in the Agreement, the estate of Assignor as tenant created by the Lease, together with all of Assignor's right, title and interest in, to and under the Lease and the Security Deposit; and TO HAVEAND TO HOLD the same unto Assignee, its successors and assigns, from and after the date hereof and for all the remainder of the respective terms of the Lease and any renewals or extensions thereof, subject to the rents, covenants, terms and conditions contained therein. The foregoing assignments are expressly made without representation or warranty (either expressed or implied) of any nature or kind, or recourse against Assignor in any event, unless expressly set forth herein or in the Agreement. 2. Assignee hereby accepts the assignment from Assignor of the Lease and the Security Deposit and hereby assumes the obligation to observe and perform all of the terms, covenants and conditions thereof to be observed or performed by Assignor as tenant thereunder from and after the date hereof, with the same force and effect as if Assignee had executed the Lease originally as an original signatory. Assignee hereby acknowledges receipt of a copy of the Lease and 1 S:\Legal\Leases\Pennsylvania\stonehedge\Carlisle Coffee\LEASEassigmnent.doc agrees to seek recovery of the Security Deposit solely from Landlord in accordance with the terms of the Lease and waives any claims against Assignor therefor. Assignor represents and warrants to Assignee that the amount of the Security Deposit is $5,646.68. 3. Assignee shall indemnify, hold harmless and defend Assignor and Cedar- Stonehedge, LLC from and against any and all indemnified liabilities (as may be defined in the Agreement) asserted against, imposed upon or incurred by Assignor or Cedar-Stonehedge, LLC, directly or indirectly, by reason of or arising from claims by the Landlord under the Lease with respect to events occurring or matters arising after the Closing Date (as such term is defined in the Agreement) or otherwise due to Assignee's breach of any term of this Assignment Agreement. 4. This Assignment Agreement may not be amended, modified or terminated except by an instrument in writing executed by the parties hereto. 5. This Assignment Agreement shall be binding upon and shall inure to the benefit of the parties hereto and their respective heirs, successors and assigns. IN WITNESS WHEREOF, the parties hereto have executed this agreement as of the day and year first above written. Assignor: CARLISLE COFFEE COMPANY, INC. BRADLEY L. ELINE 2 S:\Legal\Leases\Pennsylvania\stonehedge\Carlisle Coffee\LEASEassignment.doc CONSENT AND RATIFICATION In conjunction with the Assignment of Lease from Carlisle Coffee Company, Inc. to Bradley L. Eline and Susan P. Eline, jointly and severally, the undersigned, as Guarantors of the Lease under the terms and conditions set forth in that certain Guaranty dated April 8, 2004, hereby consent to the foregoing assignment of the Lease on the terms and conditions hereinabove set forth and agree that their guarantee of payment and performance by Tenant under the Lease shall remain in full force and effect in accordance with its terms, and shall encompass all of Tenant's obligations under the Lease. In addition, Guarantors acknowledge that Cedar-Stonehedge, LLC has assumed ownership of the Shopping Center' and the Lease and as such, the undersigned ratify and confirm the Guaranty with respect to Cedar-Stonehedge, LLC, as Landlord. Dated:11A-C.4.1Y14,17- ?J , 200* 3 sALegal\Leases\Pennsylvania1sionehedge\Carlisle Coffee\LEASEassignmentdoc EXHIBIT "C" Assignment and Assumption of Lease and Security Deposit SSIGNMENT AND ASSUMPTION AGREEMENT ("Assignment Agreement") made this `lday of , 2009, between BRADLEY L. ELINE and SUSAN P: ELINE d/b/a CarlisleCoffeeCo piny (the "Assignor"), jointly and severally adult individuals with an address of 639 Frederick Street, Hanover, PA 17331, and JACK R GREENAWALT, JR. and TINA GREENAWALT d/b/a Carlisle Coffee and Smoothie Cafe (the "Assignee"), jointly and severally adult individuals with an address of 2570 Waterford, Camp Hill, PA 17011. WITNESSETH: WHEREAS, Assignor is the tenant under that certain lease dated as of April 8, 2004 by and between Stonehedge Center LLC, as landlord, predecessor in; interest to Cedar-Stonehedge, LP -(the "Landlord"), and Carlisle Coffee Company, Inc., es tenant, predecessor in interest to Bradley L. Eline and Susan P. Eline (the "Tenant"), as.modi!ied by that certain Assignment and.Assumption Agreement 'from Carlisle Coffee Company, Inc. to Bradley L. Eline and Susan P. Eline dated December 31,2007 (the "Lease") for. those certain premises described therein (the "Premises") in the 'shopping center known as Stonehedge Square, 950 Walnut Bottom Road, Carlisle, PA 1.7013 (the "Shopping Center"); and WHEREAS, pursuant to the Lease, Landlord is presently holding a security deposit in the amount of $5,646.68 ("Security Deposit"); and WHEREAS, pursuant to a purchase and sale agreement ("Agreement"), dated S _ - 8-©.r2 , between Assignor, as seller, and Assignee, as purchaser, Assignor agreed inter alis to assign the Lease and Security Deposit to Assignee on the closing. date ("Closing Date") set forth in the Agreement, and Assignee agreed to assume the obligations of Assignor thereafter under the Lease, according to the terms hereinafter set forth; NOW, THEREFORE, it is agreed: 1. Assignor hereby assigns, transfers, releases and sets over unto Assignee without recourse, except as expressly set forth in ,the Agreement, the estate of Assignor as tenant created by the Lease, together with all ofAssignor's right, title and interest in, to and under the Lease and the Security Deposit; and TO IHA VEAND TO HOLD the same unto Assignee, its successors and assigns, from and after:the date hereof and for all the remainder of the respective terms of the Lease and any renewals or extensions thereof, subject to the rents, covenants, termsand conditions contained therein. The foregoing assignments are expressly made without representation or warranty (either expressed or implied) of any nature or kind, or recourse against Assignor in any event, unless expressly set forth herein or` in the Agreement. 2. Assignee hereby accepts. the assignment from Assignor of the.Lease and the Security. Deposit and hereby assumes the obligation to observe and perform all of the terms, C.:1Documents andSeltings\FCC User\Local SettingslTemponiry. intcriret Files'ConienLlE51W5 V6ZY7SILEASEass.ignmcni.doc covenants and conditions thereof to be observed or performed by Assignor as tenant thereunder from and after the date hereof, with the same force and. effect as if Assignee had executed the Lease originally as an original signatory. Assignee hereby acknowledges receipt of a copy of the -Lease and agrees to seek recovery ofthe Security Deposit solely from Landlord in accordance with theterms of the Lease and waives any claims against Assignor therefor. Assignor represents and warrants to Assignee that the amount of the Security Deposit. is $5,646.68. 3. Assignee shall indemnify; hold, harmless and defend Assignor and Landlord .from and against any and all indemnified liabilities (as may be defined in the Agreement) asserted against, imposed upon.or incurred. by. Assignor or Landlord, directly or indirectly, 'by reason of or arising from claims by the Landlord under the Lease with respect to events occurring or matters arising after the Closing Date (as such term 'is defined in the Agreement) or otherwise due to Assignee's breach of any terra of this. Assignment. Agreement. 4. This Assignment Agreement mar -not be amended, modified or terminated except by an instrument in. writing executed by the parties hereto. 5. This Assignment Agreement shall be binding upon and shall inure to the benefit of the parties hereto and their respective heirs, successors and assigns. IN WITNESS WHEREOF, the parties hereto have executed this agreement as ofthe day and year first above written. V A v P. ELINE Assignee: C;\Uocuments end SettingsWFCC UsciiLocal Settings\Temporary Internet FileslContent.EE51W5V6ZY7S\ EASFassignnrent,d EXHIBIT "D" LEASE MODIFICATION AGREEMENT , LEASE MODIFICATION AGREEMENT (this "Agreement") dated as of the day of jam , 2009 between CEDAR-STONEIIEDGE; LP, a Delaware limited liability company having an office do Cedar Shopping Centers, inc., 44 South Bayles Avenue, Suite 304, Port Washington, New York 11050 (hereinafter referred to as "Landlord") and JACK R. GREENAWALT; JR. and TINA GREENAWALT d/b/a. Carlisle Coffee and Smoothie Cafe (the "Tenant"), jointly and severally adult individuals with an address of 2570 Waterford,. Camp Hill, PA 17011 (hereina.fter referred to as "Tenant"): WITNESSETH: WHEREAS, Landlord's predecessor in interest, Stonehedge' Center LLC, as landlord, and Tenant's :predecessor in interest Carlisle Coffee Company, Inc, as tenant: entered into that certain lease agreement dated as of April 8, 2004 covering certain retail space as more particularly described in the lease agreement (the "Premises"), in the shopping center known as Stonehedge Square, 950 Walnut Bottom Road, Carlisle, PA 17013 (the "Shopping Center:"), which lease agreement was thereafter modified by that certain': (i) Assignment and. Assumption Agreement from Carlisle Coffee Company; Inc. to Bradley L. Eline and Susan P. Eline dated December 31, 2007; and (ii) Assignment and Assumption Agreement from Bradley L. Eline and Susan P. Eline to Jack R. Greenawalt, jr. and Tina Greenawalt dated — ; (said lease agreement, as so modified and. assigned; is hereinafter referred to as the "Lease'),. and WHEREAS, the Lease, as extended; is currently scheduled to. expire oil October 31, 2009 (the "Current Expiration Date"); and WHEREAS, Tenant wishes:to :extend the term of the r-,PAS.P, AS modified by this Agreement, for the Premiso, for an. additional term of five (5) Lease Yeas (the "Extended Tenn") to continence AS of November' 1,. 2009 (the "Extended Tenn Commencement Date") and to expire on October. 31, 2014 (the "ExtendedTerm Expiration Date"); and WHEREAS, subject to and in accordance with the terms, covenants and conditions of this Agreement, Landlord has agreed to permit Tenant to extend the term of the Lease for the period of the Extended Term; and WHEREAS, Tenant and, Landlord wish to modify the Lease as set forth below. NOW, THEREFORE, in consideration of the mutual agreements herein contained and other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties hereby agree as follows: 1. Term. CADocurnents and Settings \FCC User\Local Setting,MTempnrary Internet Files \Content.lE51W5V6ZY7S \Renewal Agreement 001.doe (a) The term of the Lease shall be extended under the same terms, covenants and conditions contained in the Lease, except to the extent specifically modified by this Agreement, for the period of the Extended -Tenn so that the term ,.of the Lease shallexpire on the Extended Term Expiration Date. or on sudh earlier date upon which the term of the Lease. shall expire, be canceled or terminated pursuant to any of the conditions or covenants of the Lease or pursuant to law. (b) Tenant shall have no further right to extend the term of this Lease. except as -may be expressly set forth herein. 2. Annual Base Rent and Additional Rent (a) Prior to the Extended Term Commencement Date, Tenant shall pay all Annual Base Rent, Additional Rent and other ,chargeS accruing under the Lease as originally provided for therein. (b) Effective as of the 'Extended Term Commencement Date, in addition to all Additional Rent and other charges accruing under the Lease, the Tenant :shalt pay Annual Base Rent fertile Premises; during 'the Extended Term, at the followirigIates: Period 11/01/2009 — 10/31/2010 11/01/2010 — 10/31/2011 11/01/2011— 10/31/2012 11/01/2012 — 10/31/2013 11/01/2013 — 10/31/2014 Annual Base Rent $26,500.00 $ 29,000.00 $ 34500.00 '$ 35,000.00 $ 38,000.00 Monthly Minimum Rent $ 2,208433 $ 2,416.67 $ 2,708.33 $ 2,916.67 $ 3,166.67 3. Miscellaneous Lease Modifications. (i) Article 3(A) of the Lease ("Base Rent") is hereby modified by requiring that Tenant forward all payments of Annual Base Rent, Additional Rent, and all other charges made payable to "Cedar-Stonehedge,-Lf" and same shall be remitted to the fellow -ins address, in lieu of the address as set iorth in the Lease; Cedar-Stonehedge, LP do Cedar Shopping Centers, Inc. 44 South Bayles Avenue Suite 304 Port Washington, New York 1.1050 (ii) Article 29 of the:. Lease ("Notices") is hereby modified by 'adding: the requirement: that all 'legal notices to LandlOrd be sent to the -folio** addreSa lieu: of the address as set -forthin the Lease: Cedar-Stonehedge, LP 2 During the Term of the Lease or any extensions or modifications thereto, upon prior written notice to Landlord, Tenant shall be permitted to amend or modify its Trade Name provided however that (i) Landlord receive Tenant's prior written. notice of such modifications; and (ii) Tenant's modified or amended Trade Name shall not, in Landlord's sole reasonable opinion and discretion, be: confusingly similar to that of any other tenant or occupant then operating in the Shopping Center; (iii) Tenant shall have the legal right to use such name, 4. Successors and Assigns. This Agreement shall be binding upon, and inure to the benefit of the parties and their respective successors and permitted assigns. .5, Entire Agreement The Lease, as modified by this Ageernent, represents the entire understanding between the parties with regard to the matters addressed herein and may only be Modified by written agreement executed by all parties hereto. All prior understandings or representations between the parties hereto, oral or written, with regard to the matters addressed herein, other than the Lease, are hereby merged herein. Tenant acknowledges that neither Landlord ° nor any representative or agent of Landlord has made any representation or Warta*, express or implied, as to the physical condition, state of repair, layout, footage or use of the Premises or any matter or thing affecting or relating to the Premises except as specifically set forth in this Agreement. Tenant has not been induced by and has not relied upon any atatemein, representation or agreement, whether express or implied, not specifically set forth in,this Agreement, Landlord shall not be liable or bound in any manner by any oral or written statement, broker's "set4tp", representation, agreement or informatianpertaining to the Premises or this Agreement furnished by any real estate broker, agent, servant, employee or other person, tin ess specifically set forth, herein, and no rights are or shall be acqUired by Tenant by implication or otherwise unless expressly set forth herein. 6. Effectiveness. This agreement shall not be binding upon Landlord and Tenant until excepted and delivered by both Landlord and Tenant 7. Ratification. Except as specifically modified herein, all other terms, covenants and conditions of the Lease are and shall remain in full force and effect and are hereby ratified and continued. Tenant acknowledges that Landlord is not in breach of the Lease and Tenant has no claim for any failure of Landlord to perform its obligations under the Lease. In accordance with the foregoing, Tenant is hereby estopped from raising any claim pertaining to a default by Landlord prior to the date hereof. 4 Notwithstanding the amendments to the Lease a,Toontemplated in this Agreement and notwithstanding.: anything to the contrary contained, in this Agreement, Tenant shall remain liable fOuany unpaid Minimum Annual Rent, Additional Rent and other charges accruing under the Lease through and including the Extended Term Commencement Date. $. No Brokers/Indemnification.. Tenant covenants, represents and warrants that. Tenant has had no dealings or negotiations with any broker or agent in Connection with the consummation of this agreement other than Cedar Shopping Center Partnership, L.P. and Tenant covenants and agrees to defend, hold harmless and indemnify Landlord from and 'against any and all cost, expense (including reasonable attorneys' fees) or liability for any compensation, commissions or charges claimed by any other broker or agent with respect to this Agreement or the negotiation thereof 9. Miscellaneous. (a) The captions in this Agreement are for convenience only and are not to be considered in construing this Agreement. (b) This. Agreement shall be construed without regard to any presumption or other rule requiring construction against the party causing this agreement to be :drafted. (c) Terms used in this Agreement and not otherwise defined herein shall have the respective meanings ascribed thereto in the Lease, (THE BALANCE OF THIS PAGE IS IN- ALLY LEFTSLANIO (d) If any provision of this Agreement or its ..application 'to any person or circumstances is invalid or unenforceable to any extent, the remainder of this agreement, 'or the -applicability-of such provision to Other persons or circumstances; shall be valid and ,enfOreeable to the fullest extent permitted by law and shall be deemed to be•separate from such invalid or unenforceable provisions and shall continue in full force and effect. IN WITNESS WHEREOF, Landlord and. Tenant have duly executed this Agreement as of the day and yeat trgt above written: WITNESS: WITNESS: -LANDLORD: CEDAR-STONHED GE, LP By: Cedar Stonehedge Square GP, LLC its General Partner By: Cedar Shopping Centers'Partnership, L.P. its Solt Member By: Cedar Shopping Centers, Inc, its General Partner By: N Title: a 4:Walker Vice President 6 EXHIBIT "E" Assignment and Assumption of Lease and Security Deposit ,ASSIC NT ASSUMPTION AGREEMENT ("Assignment Agreement") made this day of , 2012, between JACK R. GREENAWALT, JR. and TINA GREENAWALT d/b/a Orlislc Coffee and Smoothie Cafe (the "Assignor"), jointly and severally adult individuals with an address of 2570 Waterford, Camp Hill, PA 17011, and HECKEPOP, INC. (the "Assignee"), a Pennsylvania corporation with an address of 950 Walnut Bottom Rd., #24, Carlisle, PA 17015. WITNESSETH: WHEREAS, Assignor is the tenant under that certain lease dated April 8, 2004 by and between Stonehedge Center LLC, as landlord, predecessor in interest to Cedar-Stonehedge, LP (the "Landlord"), and Carlisle Coffee Company, Inc., as tenant, predecessor in interest to Assignor, as modified by that certain: (i) Assignment and Assumption Agreement from Carlisle Coffee Company, Inc. to Bradley L. Eline and Susan P. Eline dated December 31, 2007; (ii) Assignment and Assumption Agreement from Bradley L. Eline and Susan P. Eline to Jack R. Greenawalt, Jr. and Tina Greenawalt dated May 8, 2009; and (iii) Lease Modification Agreement dated June 16, 2009 (said lease agreement, as so amended, is hereinafter referred to as the "Lease") for certain premises all as more particularly described in the Lease (the "Premises") and located in the shopping center known as Stonehedge Square, 950 Walnut Bottom Road, Carlisle, PA 17013 (the "Shopping Center"); and WHEREAS, pursuant to the Lease, Landlord is presently holding a security deposit in the amount of $5,646.68 ("Security Deposit"); and WHEREAS, pursuant to a purchase and sale agreement ("Agreemenr),. dated 41 (4i 0fZ- etween Assignors as seller, and Assignee, as purchaser, Assignor agreed utter alia.to .assign the Lease and Security Deposit to Assignee on the closing: date ("Closing Date") set forth in the Agreement, and Assignee agreed to assume the obligations of Assignor thereafter under the Lease, according to the terms hereinafter set forth; NOW, THEREFORE, it is agreed: 1. Assignor hereby assigns, transfers, releases and sets over unto Assignee without recourse, except as expressly set forth in the Agreement, the estate of Assignor as tenant created by the Lease, together with all of Assignor's right, title and interest in, to and under the Lease and the Security Deposit; and TO HAVE AND TO HOLD the same unto Assignee, its successors and assigns, from and after the date hereof and for all the remainder of the respective terms of the Lease and any renewals or extensions thereof, subject to the rents, covenants, terms and conditions contained therein. The foregoing assignments are expressly made without representation or warranty (either expressed or implied) of any nature or kind, or recourse against Assignor in any event, unless S:\LegallLeases\Pennsylvanialstonehedge\Carlisle Coffee\Assignment 2012\LEASEassignment,doc expressly set forth herein or in the Agreement. 2. Assignee hereby accepts the assignment from Assignor of the Lease and the Security Deposit and hereby assumes the obligation to observe and perform all of the terms, covenants and conditions thereof to be observed or performed by Assignor as tenant thereunder from and after the date hereof, with the same force and effect as if Assignee had executed the Lease originally as an original signatory. Assignee hereby acknowledges receipt of a copy of the Lease and agrees to seek recovery of the Security Deposit solely from Landlord in accordance with the terms of the Lease and waives any claims against Assignor therefor. Assignor represents and warrants to Assignee that the amount of the Security Deposit is $5,646.68. 3. Assignee shall indemnify, hold harmless and defend Assignor and Landlord from and against any and all indemnified liabilities (as may be defined in the Agreement) asserted against, imposed upon or incurred by Assignor or Landlord, directly or indirectly, by reason of or arising from claims by the Landlord under the Lease with respect to events occurring or matters arising after the Closing Date (as such term is defined in the Agreement) or otherwise due to Assignee's breach of any term of this Assignment Agreement. 4. This Assignment Agreement may not be amended, modified or terminated except by an instrument in writing executed by the parties hereto. 5. This Assignment Agreement shall be binding upon and shall inure to the benefit of the parties hereto and their respective heirs, successors and assigns. IN WITNESS WHEREOF, the parties hereto have executed this agreement as of the day and year first above written. 'a for, igor • .e 4 AWALT, JR. TINA GREENAWALT Assignee: HECKEPOP, INC; J ! r?f Name: Title: I I es, ��► S:\Legal\Leases\Pennsylvania\stonelhedge\Carlisle CoffeeAssignment 2012\LEASEass lgnment. doc EXHIBIT"F" Cedar-Stoneh edge, LI' do Cedar Shopping Centers, Inc. 44 South Bayles Avenue Port Washington, New York 11050 Mr. Jack R. Greenawalt, Jr. (gpimarketing@comcast.net) Ms. Tina Greenawalt d/b/a Carlisle Coffee & Smoothie Cafe 2570 Waterford Camp Hill, PA 17011 Mr. Matthew Popik (mpopik@verizon.net) Ms. Danielle Popik 1728 Creek Vista Drive New Cumberland, PA 17070 Re: (i) 2012 That certain lease agreement dated as of April 8, 2004 by and between Stonehedge Center LLC, as landlord, predecessor in interest to Cedar- Stonehedge, LP (the "Landlord"), and Carlisle Coffee Company, Inc., as tenant, predecessor in interest to Jack R. Greenawalt, Jr. and Tina Greenawalt d/b/a Carlisle Coffee and Smoothie Cafe (the "Tenant"), as modified by that certain: (i) Assignment and Assumption Agreement from Carlisle Coffee Company, Inc. to Bradley L. Eline and Susan P. Eline dated December 31, 2007; (ii) Assignment and Assumption Agreement from Bradley L. Eline and Susan P. Eline to Jack R. Greenawalt, Jr. and Tina Greenawalt dated May 8, 2009; and (iii) Lease Modification Agreement dated June 16, 2009 (the "Lease") for a certain premises described therein (the "Premises") in the shopping center known as Stonehedge Square, 950 Walnut Bottom Road, Carlisle, PA 17013 (the "Shopping Center"); and (ii) Proed assignment and assumption of Lease dated as of c 2012 (the "Assignment and Assumption Agreemeht".) between Tenant, as assignor, (the "Assignor") and Heckepop, Inc., as assignee (the "Assignee"), relating to the Lease. Dear Sir or Madam: Reference is made to the above captioned Lease and Assignment and Assumption Agreement. You have requested the consent of the Landlordto the Assignment and Assumption Agreement pursuant to the terms of the Lease. Terms used in this Agreement and not otherwise defined herein shall have the respective meanings ascribed thereto in the Lease. SAI cgal\Ulises \Pcnnsylvania\stoncbcdgc\Carlisle Cof ee\Assignment 2012\Consent to Assign 01 doc Landlord hereby consents to the Assignment and Assumption Agreement upon the following terms and conditions: 1. Assignor and Assignee represent and warrant to Landlord that a true and complete copy of the Assignment and Assumption Agreement is annexed hereto as Exhibit A. Neither the giving of this Consent nor anything contained herein or in the Assignment and Assumption Agreement shall be construed to modify, waive, impair or affect any of the covenants, agreements, terms, provisions, obligations or conditions contained in the Lease, or to waive any breach thereof, or any rights Landlord may have against either the Assignor or Assignee, as the case may be, or any person and/or entity liable or responsible for the performance thereof, or to increase the obligations or diminish the rights of Landlord under the Lease, or to increase the rights or diminish the obligations of Tenant thereunder, or to, in any way, be construed as giving Assignee any greater rights than the original Tenant named in the Lease would be entitled to, and all covenants, agreements, terms, provisions and conditions of the Lease are hereby mutually declared to be in full force and effect. 2. This Consent is given in consideration of the covenants and agreements of the Assignor and Assignee contained in the Assignment and Assumption Agreement and upon the condition that all Minimum Rent, Additional Rent and all other charges (the "Rentals") which have arisen prior to the date hereof shall be conclusive and binding upon both the Assignor and Assignee and shall be paid, without offset or deduction of any kind. Tenant acknowledges and agrees that the Lease has not been modified and remains in full force and effect, Landlord has not waived any requirement of the I..ease and Landlord is not in breach of the Lease and Tenant has no claim for any failure of Landlord t� perform its obligations under the Lease. It is a further condition to this consent that (i) Assignor shall not be released from any of its obligations under the Lease; (ii) Assignor shall upon execution hereof pay all items of Rentals due and owing through the date hereof (exclusive of any item not yet billed to date); and (iii) that all of the rights and remedies of the undersigned, as Landlord, contained in the Lease shall remain unmodified and in full force and effect. 3. Assignor hereby agrees that the obligations of Assignor under the Lease and this Consent shall not be discharged or otherwise affected by reason of the giving or withholding of any consentor approval for which provision is made in the Lease, by reason of any amendment or modification of the Lease hereafter entered into by Landlord and Assignee, or by reason of any other act or omission of Landlord. The giving of this Consent shall not be deemed or serve to release Tenant named in the Lease or any successor ininterest to said Tenant from any liability, obligation or duty which such Tenant or such successor in interest may have. 4. As of the date of the Assignment and Assumption Agreement the ("Effective Date"), Assignee, for Assignee and its successors and permitted assigns, hereby (a) accepts the assignment, by Assignor, of Tenant's interest in and to the Lease, (b) recognizes all of the covenants, agreements, terms, provisions, obligations and conditions contained in the Lease accruing from and after the Effective Date and assumes all of said terms, provisions, agreements, covenants, obligations and conditions of the Lease on the part of Tenant to be kept, observed and performed accruing from and after the Effective Date, (c) assumes and agrees to pay the Rentals, 2 damages and all other sums payable by Tenant under the Lease accruing from and after the Effective Date, expressly including as such (but not limited to) adjustments of rent, and any and all charges for any additional electric energy, property, material, labor, utility or other similar or dissimilar services or materials rendered or supplied or furnished by Landlord in, to, or in connection with the Premises or any part thereof; and (d) agrees to keep and perform, and to permit no violation of, each and every covenant, agreement, term, provision, obligation and condition therein set forth on the part of Tenant to be kept, observed and performed. 5. The giving of this Consent shall not result in any liability on the part of Landlord for the payment of any commissions or fees in connection with the proposed assignment transaction herein contemplated by Assignor and Assignee; Assignor and Assignee hereby covenant and agree the Landlord is not and will not be responsible for the payment of any commissions or fees in connection with the aforesaid assignment transaction and agree to indemnify and hold Landlord harmless from and against any claims, liability, losses or expenses, including attorneys' fees and court costs, incurred by Landlord in connection with any claims for a commission or fee by any broker, agent or finder in connection with said assignment transaction. Assignor and Assignee warrant and represent to Landlord that they have not dealt with any broker, agent or finder in connection with the Assignment and Assumption Agreement. 6. Assignor and Assignee hereby represent, covenant and warrant to Landlord that no compensation or other consideration of any kind has been or will be paid by Assignee to Assignor in connection with the aforesaid assignment. Assignor shall pay to Landlord promptly on demand therefor as additional rent, all costs and expenses (including, without limitation, reasonable attorneys' fees and, disbursements) incurred by Landlord in connection with its review of the Assignment and Assumption Agreement, all related documentation and the negotiation and preparation of this Consent. 7. Landlord shall be under no obligation to commence proceedings or exhaust any of its remedies against Assignee before proceeding against Assignor, or against Assignor before proceeding against Assignee, for any redress provided for in the Lease or this Consent, or at law or equity, and Assignor and Assignees acknowledge and agree that they shall remain jointly and severally liable at all times for all obligations of the tenant accruing under or with respect to the Lease. 8. Assignor and Assignee hereby agree that (a) Landlord is not a party to the Assignment and Assumption Agreement and is not bound by the provisions thereof; and recognize that accordingly Landlord has not, and will not, review or pass upon any of the provisions of the Assignment and Assumption Agreement; and (b) the Assignment and Assumption Agreement shall not be modified or amended in any way without the prior written consent of Landlord. 9. This consent shall not be deemed to constitute a waiver of the requirement contained in the Lease that the prior written consent of the Landlord be obtained in each instance to any other or further assignment of the Lease or subletting of all or any portion of the Premises. With respect to any permitted assignment or subletting, any right of leaseback or recapture of the Premises, or portion thereof, shall be for the benefit of Landlord and not the Assignor, and any 3 profit received by Assignor and/or Assigneein connection with any peril -lifted assignment or subletting shall be paid to Landlord. 10. In the event of any conflict between the provisions of (i) the Lease or this Consent and (ii) the Assignment and Assumption Agreement, the provisions of the Lease or this Consent shall prevail unaffected by the provisions of the Assignment and Assumption Agreement. (THE BALANCE OF THIS PAGE TS INTENTIONALLY LEFT BLANK) 4 11. 'This Consent shall not" be binding upon Landlord unless and until it is signed and delivered by Landlord. Landlord: CEDAR-STONEHEDGE, LP 'Bvt 'Title: lUu.. Walke! '/ice: Pt'eslcJCftit Assignor and Assignee jointly and' severally agree to the foregoing terms and conditions of this Consent as of the date set forth above. Tenant -Assignor. I EENAWALT, Jttj TINA GREEN A"ALT Assignee: RECKEPOP, TNC. By:.. Name:. 'rl*'lla'th/ %°' Title: 1--)��5 c(ev14' 5 EXHIBIT A (to be attached) 6 Assignment and Assumption of Lease and Security Deposit ASSIGN < N' AND ASSUMPTION AGREEMENT ("Assignment Agreement") made this& day of , 2012, between JACK R. GREENAWALT, JR. and TINA GR i ENAWALT d/b/a Carlisle Coffee and Smoothie Cafe (the "Assignor"), jointly and severally adult individuals with an address of 2570 Waterford, Camp Hill, PA 17011, and HECKEPOP, INC. (the "Assignee"), a Pennsylvania corporation with an address of 950 Walnut Bottom Rd., 424, Carlisle, PA 17015. WITNESSETH. WHEREAS, Assignor is the tenant under that certain lease dated April 8, 2004 by and between, Stonehedge Center LLC, as landlord, predecessor in interest to Cedar-Stonehedge, LP (the "Landlord"), and Carlisle Coffee Company, Inc., as tenant, predecessor in interest to Assignor, as modified by that certain: (i) Assignment and Assumption Agreement from Carlisle Coffee Company, Inc. to Bradley L. Eline and Susan P. Eline dated December 31, 2007; (ii) Assignment and Assumption Agreement from Bradley L. Eline and Susan P. Eline to Jack R. Greenawalt, Jr. and Tina Greenawalt dated May 8, 2009; and (iii) Lease Modification Agreement dated June 16, 2009 (said lease agreement, as so amended, is hereinafter referred to as the "Lease") for certain premises all as more particularly described in the Lease (the "Premises") and located in the shopping center known as Stonehedge Square, 950 Walnut Bottom Road, Carlisle, PA 17013 (the "Shopping Center"); and WHEREAS, pursuant to the Lease, Landlord is presently holding a security deposit in the amount of $5,646.68 ("Security Deposit"); and WHEREAS, pursuant to a purchase and sale agreement ("Agreement"), dated M4 It"i ?IZr etweenAssignor, as seller, and Assignee, as purchaser, Assignor agreed inter alfa to sign the Lease and Security Deposit to Assignee on the closing date ("Closing Date") set forth in the Agreement, and Assignee agreed to assume the obligations of Assignor thereafter under the Lease, according to the terms hereinafter set forth; NOW, THEREFORE, it is agreed: 1. Assignor hereby assigns, transfers, releases and sets over unto Assignee without recourse, except as expressly set forth in the Agreement, the estate of Assignor as tenant created by the Lease, together with all of Assignor's right, title and interest in, to and under the Lease and the Security Deposit; and TO H4 VEAND TO HOLD the same unto Assignee, its successors and assigns, from and after the date hereof and for all the remainder of the respective terms of the Lease and any renewals or extensions thereof, subject to the rents, covenants, terms and conditions contained therein. The foregoing assignments are expressly made without representation or warranty (either expressed or implied) of any nature or kind, or recourse against Assignor in any event, unless S: \LegaICLeases\Pennsylvan ialstonehedge\Carl isle Coffee\Assignment 2012\LEASEassignment.doc expressly set forth herein or in the Agreement. 2. Assignee hereby accepts the assignment from Assignor of the Lease and the Security Deposit and hereby assumes the obligation to observe and perform all of the terms, covenants and conditions thereof to be observed or performed by Assignor as tenant thereunder from and after the date hereof, with the same force and effect as if Assignee had executed the Lease originally as an original signatory. Assignee hereby acknowledges receipt of a copy of the Lease and agrees to seek recovery of the Security Deposit solely from Landlord in accordance with the terms of the Lease and waives any claims against Assignor therefor. Assignor represents and warrants to Assignee that the amount of the Security Deposit is $5,646.68. 3. Assignee shall indemnify, hold harmless and defend Assignor and Landlord from and against any and all indemnified liabilities (as may be defined in the Agreement) asserted against, imposed upon or incurred by Assignor or Landlord, directly or indirectly, by reason of or arising from claims by the Landlord under the Lease with respect to events occurring or matters arising after the Closing Date (as such term is defined in the Agreement) or otherwise due to Assignee's breach of any term of this Assignment Agreement. 4. This Assignment Agreement may not be amended, modified or terminated except by an instrument in writing executed by the parties hereto. 5. This Assignment Agreement shall be binding upon and shall inure to the benefit of the parties hereto and their respective heirs, successors and assigns. IN WITNESS WHEREOF, the parties hereto have executed this agreement as of the day and year first above written. TINA GRE.ENAWALT Assignee: HECICEPOP, INC. By: Name: Title: S:\I.egal \Leases Pennsylvania \stonehedge1Carlisle CoffeeNAssignment 2012kLEASEassignment.doe EXHIBIT "G" LEASE GUARANTY In consideration of, and as an inducement for the wanting, execul on and delivery of that certain "07 Landlord's Consent to that certain assigiunent oflease, dated as of I , 20] 2 from JACK R. GREENAWALT, JR. and TINA GREENAWALT d/b/a Carlisle Coffee and Smoothie Cafe as assignor to HECKEPOP, INC. as assignee pertaining to that certain lease, by Stonehedge Center LLC, predecessor in interest to Cedar-Stonehedge, LP, as landlord ("Landlord," which term shall, for the purposes of this Agreement, include the named Landlord and its successors and assigns), to Carlisle Coffee Company, Inc., as tenant, predecessor in interest to JACK R. GREENAWALT, JR. and TINA GREENAWALT d/b/a Carlisle Coffee and Smoothie Cafe ("Tenant," which term shall be deemed to include the named tenant and its successors and assigns), and in further consideration of the sum of One ($1.00) Dollar and other good and valuable, consideration paid by Landlord to the undersigned, the receipt and sufficiency of which are hereby acknowledged, the undersigned MATTHEW D. POPIK AND DANIELLE MIK, jointly and severally, ("Guarantor," which term shall be deemed to include the named Guarantors and their successors and assigns), hereby guarantees, absolutely and unconditionally, to Landlord the full and prompt payment of rent, additional rent and‘ all other charges and sums (itioluding, without limitation, Landlord's legal expense and attorney? fees and disbursements)payable by Tenant under the Lease, and hereby further guarantees the full and timely performance and observance of all the covenants, terms, conditions and agreements therein provided to be performed and observed by Tenant and Guarantor hereby covenants and agrees to and with Landlord that if default shall at any tirne be made by Tenant in the payment of any rent, additional rent or any other charges and sums, or if Tenant shall default in the performance and observance of any of the terms, covenants and conditions contained in the .Lease, Guarantor shall and will forthwith pay rent, additional rent and all other charges and sums, to Landlord and any arrears thereof, and shall and will forthwith faithfully perform and fulfill all of such terms, covenants and conditions and will forthwith pay to Landlord all damages that may arise in consequence of any default by Tenant under the 'Lease, including, without limitation, all reasonable attorneys' fees and disbursements incurred by Landlord or caused by any such default or the enforcement of this Guaranty. This Guaranty is an absolute and unconditional guaranty of payment (as opposed to merely a guaranty of collection) and of performance. The liability of Guarantor is co -extensive with that of Tenant and also joint and several and this Guaranty shall be enforceable against Guarantor without the necessity of any notice of non-payment, non-performance or non -observance or any notice of acceptance of this Guaranty or of any other notice or demand to which Guarantor might otherwise be entitled, all of Which Guarantor hereby expressly waives. Guarantor hereby expressly agrees that the validity of the Guaranty and the obligations of Guarantor hereunder shall in no way be terminated, 'affected, diminished or impaired by reason of (a) assertion or the failure to assert by Landlord 'against Tenant of any of the rights or remedies reserved to Landlord pursuant to the terms; covenants and conditions of the Lease, or (b) any non -liability of Tenant under the Lease, whether by insolvency, discharge in bankruptcy, or any other defect or defense which may now or hereafter exist in favor of Tenant. This Guaranty shall be a continuing guaranty, and the liability of Guarantor hereunder shall in no way be affected, modified or diminished by reason of (a) any assignment, renewal, modification, amendment or extension of Lease, or (b) any modification or waiver of or change in any of the terms, covenants and conditions of the Lease by Landlord and Tenant, or (c) any extension of time that may be granted by Landlord to Tenant, (d) any consent, release indulgence or other action, inaction or omission SAI.cgal\Leases\ Pennsylvania \stoneliedge \Carlisle CoffeeAssigninent 20 12\011aranty j and s.doc of IN WITNESS WHEREOF, the undersigned has duly executed the Guaranty as of this 6 day , 2012. GOA) mAr IIEW D. POPII< DANIELL:1 POP Soc SecNoC?" 4°7 Soc Sec. No . .: / Address: 1728 Creek Vista Drive New Cumberland, PA 17070 State of ' County of 64'4' r On the 1 day:of in the year 2012 before ine, the undersigned, personally appeared )\/ir -csotii,,; personally known to me or proved to me on the basis of satisfactory evidence \ Pi/ l to be the individual(s) whose name(s) is (-are-) subscribed to the within instrument and acknowledged to me that he/she/they executed the saine in his/herIttheir capacity(ies), and that by his/her/their signature(s) on the instrument, the individual(s) or the person upon behalf of which the individual(s) acted, executed the instrument, and that such individual made- such appearance before the undersigned in the (insert the City or other political subdivision) in j)p0)4 111 ,(insert the State or Counly or other place the acknowledgement was taken). C.JL Name: Title: Lty? P k.;13 LA C._ Seal: (insert signature, name and Office of individual taking acknowledgement) ) ) SS: COMMONWEALTH OF PENNSYLVANIA NOTARIAL SEAL CHRISTINA 1. NICHOLAS, Notary Public Lower Paxton Twp., Dauphin County My Commission Expires June 20, 2013 3 SALegaMeases \ Pennsylvania\ stonehedge,Carl isle CoffeeAssignment 20 I21Guaranty j and s,duc State of -P f\) ) SS: County of b(A-L., P \ ) On the ' day of ,qp.,1 in the year 2012 be fore me, the undersigned, personally appeared :DNA \ L(1. no 04, p&sonally known to me or proved to me on the basis of satisfactory evidence to be the individual(s) whose name(s) is (are) subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their capacity(ies), and that by his/her/their signature(s) on the instrument, the individual(s) or the person upon behalf of which the individual(s) acted, executed the instrument, and that such individual made such appearance before the undersigned in the 6 RgS01(14-A.(., (insert the City or other political subdivision) in m (insert the State or County or other place the acknowledgement was taken) L:3 Name: Title: NI 3 f (*Lc( 6LA Seal: (insert signature, name and Office of individual taking acknowledgement) COMMONWEALTH OF PENNSYLVANIA „ NOTARIAL SEAL CHRISTINA L. NICHOLAS, Notary Public LtiwerFaxtonTwp., Dauphili County My Co/tin:114km Expires June 20, 2013 4 SALegal1/4Leases\l'ennsylvanialstonelledge\Carlislc Coffec\Assignmcnt 2017 \Guarainy j and &doc EXHIBIT "H" Report Id: PRU CMAGEDLN Aged Delinquencies Page: 1 Database: PREI Prudential Real Estate Investment Date: 12/17/2013 BLDG: 439706 Stonehedge Square Time: 09:52 AM Period: 12/13 Invoice Date Category Source Amount Current 1 Month 2 Months 3 Months 4 Months 439706-EL6783 Carlisle Coffee & Smoothie Caf Matthew & Danielle Popik (717) 571-4680 Master Occupant Id: Carlisle -1 31 Currant Day Due: 1 Delq Day: Last Payment: 12/2/2013 147.38 11/1/2012 EEC Estimated CAM Recovery CH 208.34 0.00 0.00 0.00 0.00 208.34 12/1/2012 EEC Estimated CAM Recovery CH 208,34 0.00 0.00 0,00 0.00 208.34 1/1/2013 EEC Estimated CAM Recovery CH 208.34 0.00 0,00 0,00 0.00 208.34 2/1/2013 EEC Estimated CAM Recovery CH 208.34 0.00 0.00 0.00 0.00 208.34 3/1/2013 EEC Estimated CAM Recovery CH 208.34 0.00 0.00 0.00 0.00 208.34 4/1/2013 EEC Estimated CAM Recovery CH 234.82 0.00 0.00 0.00 0.00 234.82 4/1/2013 EET Estimated Recovery of Taxes CH 197.83 0.00 0.00 0,00 0.00 197.83 4/1/2013 MFR Mgmnt Fee Reimbursement CH 17.95 0.00 0.00 0.00 0.00 17.95 4/11/2013 WTR Direct Water Billings to CH 77.92 0.00 0.00 0.00 0.00 77.92 4/11/2013 WTR Direct Water Billings to CH 75.94 0.00 0,00 0.00 0.00 75.94 4/11/2013 WTR Direct Water Billings to CH 81.88 0.00 0.00 0,00 0.00 81.88 5/1/2013 EEC Estimated CAM Recovery CH 234.82 0.00 0.00 0.00 0.00 234.82 5/1/2013 EET Estimated Recovery of Taxes CH 197.83 0,00 0.00 0.00 0.00 197.83 5/1/2013 MFR Mgmnt Fee Reimbursement CH 101.28 0.00 0.00 0.00 0.00 101.28 5/1/2013 RTL Rent -Base Retail CH 2,916.67 0.00 0.00 0.00 0.00 2,916.67 5/7/2013 WTR Direct Water Billings to CH 82.87 0.00 0.00 0.00 0.00 82.87 5/13/2013 ARA Due Previous Owner CH 272.28 0.00 0.00 0,00 0.00 272.28 5/13/2013 EAT Recovery Taxes, Actual CH 78.99 0.00 0.00 0.00 0.00 76.99 5/14/2013 ARA Due Previous Owner NC -351.91 0.00 0.00 0.00 0.00 -351.91 5/14/2013 CA1 Common Area Maintenance-, NC -129.54 0,00 0.00 0.00 0.00 -129.54 5/24/2013 WTR Direct Water Billings to CH 78.70 0.00 0.00 0.00 0.00 76.70 6/1/2013 EEC Estimated CAM Recovey CH 234.82 0.00 0.00 0.00 0.00 234.82 8/1/2013 EET Estimated Recovery of Taxes CH 197.83 0.00 0,00 0.00 0.00 197.83 6/1/2013 MFR Mgmnt Fee Reimbursement CH 101.28 0.00 0.00 0.00 0.00 101.28 6/1/2013 RTL Rent -Base Retail CH 2,916.67 0.00 0.00 0.00 0.00 2,916,67 7/1/2013 EEC EsUmated CAM Recovery CH 234.82 0,00 0,00 0.00 0.00 234.82 7/1/2013 EET Estimated Recovery of Taxes CH 197.83 0.00 0,00 0.00 0.00 197.83 7/1/2013 MFR Mgmnt Fee Reimbursement CH 101.28 0.00 0.00 0.00 0.00 101.28 7/1/2013 RTL Rent -Base Retail CH 2,916.67 0.00 0,00 0.00 0.00 2,916.67 7/8/2013 WTR Direct Water Billings to CH 70.75 0.00 0.00 0.00 0.00 70.75 8/1/2013 EEC Estimated CAM Recovery CH 234.82 0.00 0.00 0.00 0.00 234.82 8/1/2013 EET Estimated Recovery of Taxes CH 197.83 0.00 0.00 0.00 0.00 197.83 8/1/2013 MFR Mgmnt Fee Reimbursement CH 101.28 0.00 0.00 0.00 0.00 101.28 8/1/2013 RTL Rent -Base Retail CH 2,916.67 0,00 0.00 0.00 0.00 2,916.67 8/13/2013 WTR Direct Water Billings to CH 68.51 0.00 0.00 0.00 0.00 6B.51 9/1/2013 EEC Estimated CAM Recovery CH 234.82 0.00 0.00 0.00 234.82 0.00 9/1/2013 EET Estimated Recovery of Taxes CH 197.83 0.00 0.00 0.00 197.83 0.00 9!1/2013 MFR Mgmnt Fee Reimbursement CH 101.28 0.00 0.00 0.00 101.28 0.00 9/1/2013 RTL Rent -Base Retail CH 2,916.87 0.00 0.00 0.00 2,916.67 0.00 9/11/2013 WTR Direct Water Billings to CH 71.81 0,00 0.00 0.00 71.81 0.00 9/13/2013 WTR Direct Water Billings to CH 69.10 0.00 0.00 0.00 69.10 0,00 1011/2013 EEC Estimated CAM Recovery CH 234.82 0.00 0.00 234.82 0.00 0.00 10/1/2013 EET Estimated Recovery of Taxes CH 197.83 0.00 0.00 197.83 0.00 0.00 10/1/2013 MFR Mgmnt Fee Reimbursement CH 101.28 0.00 0.00 101.28 0.00 0.00 10/1/2013 RTL Rent -Base Retail CH 2,916.67 0.00 0.00 2,916.67 0.00 0.00 10/16/2013 WTR Direct Water Billings to CH 55.61 0.00 0.00 55.61 0.00 0.00 10/25/2013 LFE Legal Fees CH 909.07 0.00 909.07 0.00 0.00 0.00 11/1/2013 EEC Estimated CAM Recovery CH 234.82 0.00 234.82 0.00 0.00 0.00 11/112013 EET Estimated Recovery of Taxes CH 197.83 0.00 197.83 0.00 0.00 0.00 11/1/2013 MFR Mgmnt Fee Reimbursement CH 101.28 0.00 101,28 0.00 0.00 0.00 11/1/2013 RTL Rent -Base Retail CH 3,166.67 0.00 3,166.67 0.00 0.00 0.00 11120/2013 WTR Direct Water Billings to CH 54.23 0.00 54.23 0.00 0.00 0.00 12/1/2013 EEC Estimated CAM Recovery CH 234.82 234.82 0.00 0.00 0.00 0.00 12/1/2013 EET Estimated Recovery of Taxes CH 197.83 197.83 0.00 0.00 0.00 0.00 Report Id: PRU_CMAGEDLN Database: PREI BLDG: 439706 Aged Delinquencies Prudential Real Estate Investment Stonehedge Square Period: 12/13 Page: 2 Date: 12/17/2013 Time: 09:52 AM Invoice Date Categ ry Source Amount Current 1 Month 2 Months 3 Months 4 Months 12/1/2013 MFR Mgmnt Fee Reimbursement CH 12/1/2013 RTL Rent -Base Retail CH 12/5/2013 LFE Legal Fees CH 12/5/2013 LFE Legal Fees CH 101.28 3,166.67 1,105.00 1,970.95 101.28 3,166,67 1,105.00 1,970.95 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0,00 0.00 0.00 0.00 0.00 0.00 0.00 ARA Due Previous Owner -79.63 0.00 0.00 0.00 0.00 -79.63 CA1 . Common Area Maintenance -Actual -129.54 0.00 0.00 0.00 0.00 -129.54 EAT Recovery Taxes, Actual 78.99 0.00 0.00 0.00 0.00 76.99 EEC Estimated CAM Recovery 3,155.08 234,82 234.82 234.82 234.82 2,215.80 EET Estimated Recovery of Taxes 1,780.47 197.83 197.83 197.83 197.83 989.15 LFE Legal Fees 3,985.02 3,075.95 909.07 0.00 0.00 0.00 MFR Mgmnt Fee Reimbursement 828.19 101.28 101.28 101.28 101.28 423.07 RTL Rent -Base Retail 23,833.38 3,166.67 3,166.67 2,916.67 2,916.67 11,686.68 WTR Direct Water Billings to 785.32 0.00 54.23 55.61 140.91 534.57 Carlisle Coffee & Smoothie Caf Total: 34,235.26 ARA Due Previous Owner CA1 Common Area IVlaIntenance-Actual EAT Recovery Taxes, Actual EEC Estimated CAM Recovery EET Estimated Recovery of Taxes LFE Legal Fees MFR Mgmnt Fee Reimbursement RTL Rent -Base Retail WTR Direct Water Billings to BLDG 439706 Total: 8,776.55 4,663.90 3,506.21 3,591.51 15,697.09 . . -79.63 0.00 0.00 0.00 0.00 -79.83 -129.54 0.00 0.00 0.00 0.00 -129.54 i 76.99 0.00 0.00 0.00 0.00 76.99 I 3,155.08 234.82 234.62 234.82 234.82 2,215.80 i 1,780.47 197.83 197.83 197.83 197.83 989.15 ! 3,985.02 3,075.95 909.07 0.00 0.00 0,00; 826.19 828.19 101.28 101.28 101.28 101.28 423.07 1 23,833.36 3,188.67 3,168.67 2,916.67 2,916.67 41,666.68j 785.32 0.00 54.23 55.61 140.91 534.57 I 8,.55 34 776 ,23526 4,683.90 3,506.21 3,591.51 15.697.09 ARA Due Previous Owner CA1 Common Area Maintenance -Actual EAT Recovery Taxes, Actual EEC Estimated CAM Recovery EET Estimated Recovery of Taxes LFE Legal Fees -79.63 0.00 0.00 0.00 0.00 -79.83 -129.54 0.00 0.00 0.00 0.00 -129.54 76.99 0.00 0.00 0.00 0.00 78.99 3,155.08 234.82 234.82 234.82 234.82 2,215.80 1,780.47 197.83 197.83 197.83 197.83 989.15 3,985.02 3,075.95 909.07 0.00 0.00 0.00 MFR Mgmnt Fee Reimbursement 828.19 101.28 101.28 101.28 101.28 423.07 RTL Rent -Base Retail 23,833.38 3,168.67 3,166.67 2.916.67 2,918.67 11,666.68 WTR Direct Water Billings to .... 785.32 0,00 54.23 55.61 140.91 534.57 Grand Total: 34.23526 6,776.55 4,663.90 3,506.21 3,591.51 15,697.09 SIRLIN LESSER & BENSON, RC. A PROFESSIONAL CORPORATION • ATTORNEYS AT LAW JON C. SIRLIN PETER A LESSER* JOHN D. BENSON* SUSAN J. KUPERSMITH" DANA S. PLON' DOROTHYANNE HAMILL' LISA M. RUTENBERG•• JERRY 1 DREW PATRICK J. TROY KIERSTIN M. LANGE' ADAM NACHMANI* NICHOLAS C. CAMPELLONE• .COLIASEL, .PA 6, NJ DAR ••PA, NJ 6. MD September 4, 2013 91 7199 9991 7033 4905 7239 Matthew and Danielle Popik Heckepop Inc. t/a Carlisle Coffee 950 Walnut Bottom road Carlisle, PA 17015 PENNSYLVANIA OFFICE 123 SOUTH BROAD STREET SUITE 2100 PHILADELPHIA, PA 19109 (215) 864-9700 FAX (215) 864-9669 NEW JERSEY OFFICE 102 BROWNING LANE BUILDING C CHERRY HILL NJ 08003 (856) 616-1900 FAX (856) 216-7459 Re: PR Stonehedge Square LP — Heckepop Inc. t/a Carlisle Coffee, Matthew Popik and Danielle Popik DEFAULT NOTICE — Stonehedge Shopping Center Our File No. 19869 Dear Mr. & Mrs. Popik: Pi -ease be advised of our representation of the:Landlord elite Stonehedge Shopping Center. have been advised by my client that Heckepop Inc. tla Carlisle Coffee ("Tenant") and you as. Guarantors are in default of the Lease dated April 8, 2904 as assigned on May 16, 2012 for failing. to pay rent and proper charges through August 31, 2013 in the amount of $16,594.47- which includes legal fees in the current amount of $750.00. As you know. September rent and charges are now due as well. This letter will serve as formal notice of default pursuant to Section 15A(1) of the Lease. Unless the arrearage as well as September rent is paid in full within five (5) days from the date of this letter, I have been instructed to commence appropriate legal action against all responsible parties for past due charges, possession of the premises, additional attorney's fees, late fees, interest and accelerated rent through the remainder of the lease term without further notice or delay. SI R LI N LESSER 8 BENSON, P. C. Please avoid the expense and inconvenience of litigation and execution by making immediate payment and by contacting me to discuss this matter. Sincerely, PAL/dp Via Certified and Regular Mail cc: Alexis H. Goodyear 5 EXHIBIT "3" SIRLIN LESSER & BENSON, P.C. A PROFESSIONAL CORPORATION ATTORNEYS AT LAW JON C. SIRLIN PETER A LESSER* JOHN D. BENSON• SUSAN J. KUPERSMITH*+ DANA S. PLON* DOROTHYANNE HAMILL* LISA M. RUTENBERG** JERRY I. DREW PATRICK J. TROY KIERSTIN M. LANGE' ADAM NACHMANI• NICHOLAS C. CAMPELLONE* *COUNSEL VA 4 NI BAR **PA, NJ &MI, September 27, 2013 91 7199 9991 7033 0739 9005 Jack R. Greenwalt, Jr. Tina Greenwalt 2570 Waterford Camp Hill, PA 17011 PENNSYLVANIA OFFICE 123 SOUTH BROAD STREET SUITE 2100 PHILADELPHIA, PA 19109 (215) 864-9700 FAX (215) 864-9669 NEW JERSEY OFFICE 102 BROWNING LANE BUILDING C CHERRY HILL, NJ 08003 (856) 616-1900 FAX (856) 216-7459 Re: PR Stonehedge Square LP — Heckepop Inc. t/a Carlisle Coffee, Matthew Popik and Danielle Popik, Jack R. Greenwalt Jr. and Tina Greenwalt DEFAULT NOTICE — Stonehedge Shopping Center Our File No. 19869 Dear Mr. & Mrs. Greenwalt: Please be advised of our representation of the Landlord at the Stonehedge Shopping Center. 1 have been advised by my client that Heckepop Inc. tia Carlisle Coffee ("Tenant"), Matthew and Danielle Popik as Guarantors and you as Assignors are m default of the Lease dated April 8, 2004 as assigned on May 16, 2012 for failing to pay rent and proper charges through the date hereof in the amount of $20,185.98 which includes legal fees in the current amount of $750.00 (the "Arrearage"). This letter will serve as formal notice of default pursuant to Section 15A(1) of the Lease. Please note that October rent in the amount of $3,450.60 is due on October 1, 2013. Any payment received after October 1, 2013 will first be applied to October rent and the remaining part to the Arrearage. Unless the Arrearage is paid in hill within five (5) days from the date of this letter, I have been instructed to commence appropriate legal action against you for past due charges, additional attorney's fees, late fees, interest and accelerated rent through the remainder of the lease term without further notice or delay. SI RLI N LESSER Eh BENSON, P.C. Please avoid the expense and inconvenience of litigation and execution by making immediate payment and by contacting me to discuss this matter. PETER A. LESSER PAL/dp Via Certified and Regular Mail cc: Alexis H. Goodyear EXHIBIT "B" LAW OFFICES OF PETER J. RUSSO, P.C. Peter J. Russo, Esquire PA Supreme Court ID: 72897 Email: prusso@pjrlaw.com 5006 East Trindle Road, Suite 203 Mechanicsburg, PA 17050 Telephone: (717) 591-1755 Facsimile: (717) 591-1756 Attorneys for Defendants PR STONEHEDGE SQUARE LP, by And through its General Partner : COURT OF COMMON PLEAS PR Stonehedge Square GP, LLC, : CUMBERLAND COUNTY, PENNSYLVANIA Plaintiffs vs. JACK R. GREENAWALT, Jr. and NO. 14 -212 -CIVIL TINA GREENAWALT and MATTHEW D. POPIK and DANIELLE POPIK Defendants NOTICE TO PLEAD TO: PR STONEHEDGE SQUARE LP, by and through it's General Partner PR STONEHEDGE SQUARE GP, LLC c/o Peter A. Lesser, Esq. Dana S. Plon, Esq. Sirlin Lesser & Benson, P.C. 123 South Broad Street, Suite 2100 Philadelphia, PA 19109 You are hereby notified to file a written response to the enclosed New Matter and Counterclaims within twenty (20) days from service hereof or a judgment may be entered against you. April 21, 2014 aw Offices o Peter J. Russo, Esquire PA Supreme Court ID 72897 5006 E. Trindle Road, Suite 203 Mechanicsburg, PA 17050 LAW OFFICES OF PETER J. RUSSO, P.C. Peter J. Russo, Esquire PA Supreme Court ID: 72897 Email: prusso@pjrlaw.com 5006 East Trindle Road, Suite 203 Mechanicsburg, PA 17050 Telephone: (717) 591-1755 Facsimile: (717) 591-1756 Attorneys for Defendants PR STONEHEDGE SQUARE LP, by And through its General Partner : COURT OF COMMON PLEAS PR Stonehedge Square GP, LLC, : CUMBERLAND COUNTY, PENNSYLVANIA Plaintiffs vs. JACK R. GREENAWALT, Jr. and NO. 14 -212 -CIVIL TINA GREENAWALT and MATTHEW D. POPIK and DANIELLE POPIK Defendants DEFENDNANT'S ANSWER TO COMPLAINT AND NEW MATTER and AFFIRMATIVE DEFENSES AND NOW COMES Jack R. Greenawalt, Jr, and Tina Greenawalt ("Answering Defendants"), by its attorneys, Law Offices of Peter J. Russo, P.C., files its responses to Plaintiff's Complaint and in support thereof, avers as follows: 1. Admitted. 2. Denied. Answering Defendant does not reside at 2570 Waterford, Camp Hill, PA. 3. Denied. Answering Defendant does not reside at 2570 Waterford, Camp Hill, PA 4. Admitted. 5. Admitted. 6. Admitted. 7. Admitted in part and denied in part. While it is admitted the parties have a written lease, the document speaks for itself, therefore any averments in paragraph 7 ,relating to the terms of the lease are denied. 8. Admitted in part and denied in part. While it is admitted the parties have a written lease which may have had an assignment, the document speaks for itself, therefore any averments in paragraph 8 relating to the terms of the lease or assignment are denied. 9. Admitted in part and denied in part. While it is admitted the parties have a written lease which may have had an assignment, the document speaks for itself, therefore any averments in paragraph 9 relating to the terms of the lease or assignment are denied. 10. Admitted in part and denied in part. While it is admitted the parties have a written lease, the document speaks for itself, therefore any averments in paragraph 10 relating to the terms of the lease are denied. 11. Admitted in part and denied in part. While it is admitted the parties have a written lease which may have had an assignment, the document speaks for itself, therefore any averments in paragraph 11 relating to the terms of the lease or assignment are denied. 12. Admitted in part and denied in part. While it is admitted the parties have a written lease which may have had an assignment, the document speaks for itself, therefore any averments in paragraph 12 relating to the terms of the lease or assignment are denied. 13. Admitted in part and denied in part. While it is admitted the parties have a written lease which may have had an assignment, the document speaks for itself, therefore any averments in paragraph 13 relating to the terms of the lease or assignment are denied. 14. Admitted in part and denied in part. While it is admitted the parties have a written lease, the document speaks for itself, therefore any averments in paragraph 14 relating to the terms of the lease are denied. 15. Admitted in part and denied in part. While it is admitted the parties have a written lease, the document speaks for itself, therefore any averments in paragraph 15 relating to the terms of the lease are denied. By way of further response, the averments in paragraph 15 are conclusions of law to which no response is required. 16. Admitted in part and denied in part. While it is admitted the parties have a written lease, the document speaks for itself, therefore any averments in paragraph 16 relating to the terms of the lease are denied. By way of further response, the averments in paragraph 16 are conclusions of law to which no response is required. 17. Admitted in part and denied in part. While it is admitted the parties have a written lease, the document speaks for itself, therefore any averments in paragraph 17 relating to the terms of the lease are denied. By way of further response, the averments in paragraph 17 are conclusions of law to which no response is required. 18. Admitted in part and denied in part. While it is admitted the parties have a written lease, the document speaks for itself, therefore any averments in paragraph 18 relating to the terms of the lease are denied. By way of further response, the averments in paragraph 18 are conclusions of law to which no response is required. 19. Admitted in part and denied in part. While it is admitted the parties have a written lease, the document speaks for itself, therefore any averments in paragraph 19 relating to the terms of the lease are denied. By way of further response, the averments in paragraph 19 are conclusions of law to which no response is required. 20. Admitted in part and denied in part. While it is admitted the parties have a written lease, the document speaks for itself, therefore any averments in paragraph 20 relating to the terms of the lease are denied. By way of further response, the averments in paragraph 20 are conclusions of law to which no response is required. 21. Admitted in part and denied in part. While it is admitted the parties have a written lease, the document speaks for itself, therefore any averments in paragraph 21 relating to the terms of the lease are denied. By way of further response, the averments in paragraph 21 are conclusions of law to which no response is required. 22. Admitted in part and denied in part. While it is admitted the parties have a written lease, the document speaks for itself, therefore any averments in paragraph 22 relating to the terms of the lease are denied. By way of further response, the averments in paragraph 22 are conclusions of law to which no response is required. NEW MATTER and AFFIRMATIVE DEFENSES 23. Defendant incorporates paragraphs 1 — 22 as thought each was set forth herein in their entirety. 24. Plaintiff has failed to set a claim upon which relief may be granted. 25. The lease which is the subject of Plaintiffs Complaint is voidable. 26. Plaintiff has failed to mitigate its damages, if any. 27. Plaintiffs claim for recoverable damages is contrary to the law of the Commonwealth of Pennsylvania. 28. Plaintiffs claim(s) may be barred by the doctrine of estoppel, waiver and/or laches. 29. Plaintiff's claim(s) may be barred by the doctrine of payment/release. 30. Plaintiffs claim(s) may be barred in whole or in part by the doctrine of economic loss. 31. Plaintiff voluntarily assumed the risk of the facts set forth in his Complaint and accordingly its claim(s) is barred. 32. No conduct of the Answering Defendants or agent of the Answering Defendants resulted in or is the proximate cause of any injury or damage sustained by the Plaintiff. 33. Any injuries and/or damages claimed by the Plaintiff, if proven, were caused by persons other than Answering Defendants and not within the control of Answering Defendants. 34. At all material times hereto Answering Defendants acted reasonably, appropriately and caused no injuries or damage to Plaintiff. 35. Any harm suffered by the Plaintiff arose out of Plaintiffs own non-performance of its essential obligations. 36. At all material times hereto, Answering Defendants' actions were proper and reasonable under the circumstances. 37. Defendants Matthew and Danielle Popik have filed a Chapter 7 Bankruptcy dockets at 1:14:bk-00881-MDF in the Middle District of Pennsylvania. 38. Plaintiffs action is in direct violation of the automatic stay as provided by the Bankruptcy Code. 39. Plaintiff failed to give Answering Defendants timely notice of the defaults in payment by Defendants Matthew and Danielle Popik. 40. Plaintiff failed to give Answering Defendants timely notice of the fact that Defendants Matthew and Danielle Popik vacated the leasehold property. By: Date: -ail -1 y Respectfully submitted, w -OFFICE . G F PEfiE :'J. RUSSO, P.C. ..moi Peter • sso, Es • • re----- - - _ PA Supreme Court ID: 72897 5006 East Trindle Road, Suite 203 Mechanicsburg, PA 17050 Telephone: (717) 591-1755 Facsimile: (717) 591-1756 Attorneys for Defendants VERIFICATION 1, Jack R. Greenawalt, Jr., verify that the statements made in the foregoing document(s) are true and correct. I understand that false statements made herein are subject to the penalties of 18 Pa.C.S. § 4904 relating to unsworn falsification to authorities. Date: ViX VERIFICATION I, Tina Greenawalt, verify that the statements made in the foregoing document(s) are true and correct. I understand that false statements made herein are subject to the penalties of 18 Pa.C.S. § 4904 relating to unsworn falsification to authorities. Date: Tina Greenawalt PR STONEHEDGE SQUARE LP, by And through its General Partner PR Stonehedge Square GP, LLC, Plaintiffs vs. : COURT OF COMMON PLEAS : CUMBERLAND COUNTY, PENNSYLVANIA JACK R. GREENAWALT, Jr. and TINA GREENAWALT and MATTHEW D. POPIK and • DANIELLE POPIK Defendants NO. 14 -212 -CIVIL CERTIFICATE OF SERVICE I, Ashley R. Malcolm, Paralegal, hereby certify that I am on this day serving a copy of the Defendant's Answer to Plaintiffs Complaint and New Matter and Affirmative Defenses upon the person(s) and in the manner indicated below as follows: United States Regular Mail Peter A. Lesser, Esq. Dana S. Plon, Esq. Sirlin Lesser & Benson, P.C. 123 South Broad Street, Suite 2100 Philadelphia, PA 19109 Matthew D. Popik and Danielle Popik 1728 Creek Vista Drive New Cumberland, PA 17070 Date: u _aa''Lk lm, Paralegal EXHIBIT "C" Peter A. Lesser, Esquire Dana S. Plon, Esquire dplon@sirlinlaw.com Identification No. 59433/80361 SIRLIN LESSER & BENSON, P.C. 123 South Broad Street, Suite 2100 Philadelphia, PA 19109 (215) 864-9700 PR STONEHEDGE SQUARE LP, by and through: its General Partner: PR Stonehedge Square GP LLC v. JACK R. GREENAWALT, JR. and TINA GREENAWALT and MATTHEW D. POPIK and DANIELLE POPIK FILED -OFFICE. ,OF THE pZOTHON CTAR I 2014 APR 30 PPS 2: G'S CU pE NNSYLVACOUNTY A TY Attorney for Plaintiff CUMBERLAND COUNTY COURT OF COMMON PLEAS No. 14-212 - Civil PLAINTIFF'S REPLY TO NEW MATTER AND AFFIRMATIVE DEFENSES OF DEFENDANTS, JACK.R. GREENAWALT AND TINA GREENAWALT 23. Plaintiff incorporates paragraphs 1 through 22 of its Complaint as though fully set forth at length herein. 24. Denied. The allegations contained in this paragraph are conclusions of law to which no response is required. 25. Denied. The allegations contained in this paragraph are conclusions of law to which no response is required. 26. Denied. The allegations contained in this paragraph are conclusions of law to which no response is required. 27. Denied. The allegations contained in this paragraph are conclusions of law to which no response is required. 28. Denied. The allegations contained in this paragraph are conclusions of law to which no response is required. 29. Denied. The allegations contained in this paragraph are conclusions of law to which no response is required. 30. Denied. The allegations contained in this paragraph are conclusions of law to which no response is required. 31. Denied. The allegations contained in this paragraph are conclusions of law to which no response is. required. 32. Denied. The allegations contained in this paragraph are conclusions of law to which no response is required. 33. Denied. Theallegations contained in this paragraph are conclusions of law to which no response is required. 34. Denied. The allegations contained in this paragraph are conclusions of law to which no response is required. 35. Denied. The allegations contained in this paragraph are conclusions of law to which no response is required. 36. Denied. The allegations contained in this paragraph are conclusions of law to which no response is required. 37. Admitted. 38. Denied. Defendants Greenawalt have not filed for bankruptcy protection and there is no automatic stay against defendants Greenawalt. 39. Denied. Defendants Greenwalt were given all proper notices in accordance with the terms of the Lease. WHEREFORE, plaintiff requests judgment in its favor and against defendants, Jack R. Greenawalt, Jr. and Tina Greenawalt, jointly and severally, as demanded in its Complaint. r . PLON Attorney for Plaintiff April 28, 2014 \11 VERIFICATION I, Dana S. Plon, state that I am counsel for plaintiff, and am authorized to make this verification on its behalf. I further state that the statements made in the foregoing Reply to New Matter are true and correct to the best of my knowledge, information and belief. I understand that false statements herein are subject to the penalties of 18 Pa.C.S. 54904 relating to unsworn falsification to authorities. D April 28, 2014 aNA PLON Peter A. Lesser, Esquire Dana S. Plon, Esquire dplon@sirlinlaw.com Identification No. 59433/80361 SIRLIN LESSER & BENSON, P.C. 123 South Broad Street, Suite 2100 Philadelphia, PA 19109 (215) 864-9700 PR STONEHEDGE SQUARE LP, by and through: its General Partner: PR Stonehedge Square GP LLC v. JACK R. GREENAWALT, JR. and TINA GREENAWALT and MATTHEW D. POPIK and DANIELLE POPIK Attorney for Plaintiff CUMBERLAND COUNTY COURT OF COMMON PLEAS No. 14-212 - Civil CERTIFICATE OF SERVICE I, Dana S. Plon, do certify that a true and correct copy of plaintiff's Reply to New Matter was served upon the following parties and/or counsel of record by U.S. Mail, postage prepaid, on this of April 2014 as follows: Peter J. Russo, Esquire Law Offices of Peter J. Russo, P.C. 5006 East Trindle Road, Suite 203 Mechanicsburg, PA 17050 DANA S. P •N Attorney for Plaintiff 28th day Peter A. Lesser, Esquire Dana S. Plon, Esquire dplon@sirlinlaw.com Identification No. 59433/80361 SIRLIN LESSER & BENSON, P.C. 123 South Broad Street, Suite 2100 Philadelphia, PA 19109 (215) 864-9700 PR STONEHEDGE SQUARE LP, by and through: its General Partner: PR Stonehedge Square GP LLC v. JACK R. GREENAWALT, JR. and TINA GREENAWALT and MATTHEW D. POPIK and DANIELLE POPIK Attorney for Plaintiff CUMBERLAND COUNTY COURT OF COMMON PLEAS No. 14-212 - Civil CERTIFICATE OF SERVICE I certify that a copy of plaintiff's Motion for Summary Judgment was served on the person listed below by First Class U.S. Mail, Postage Prepaid on July 16, 2014: Peter J. Russo, Esquire Law Offices of Peter J. Russo, P.C. 5006 East Trindle Road, Suite 203 Mechanicsburg, PA 17050 Attorney for Plaintiff PRAECIPE FOR LISTING CASE FOR ARGUMENT TO THE PROTHONTOARY OF CUMBERLAND COUNTY: Kindly list the within matter for the next Argument Court. PR STONEHEDGE SQUARE LP, by and through: its General Partner: PR Stonehedge Square GP LLC v. JACK R. GREENAWALT, JR. and TINA GREENAWALT and MATTHEW D. POPIK and DANIELLE POPIK 1. No. 14-212 - Civil Matter to be argued: Plaintiff's Motion for Summary Judgment 2. Counsel: (a) Counsel for Plaintiff Dana S. Plon, Esquire Sirlin Lesser & Benson, 123 South Broad Street, Philadelphia, PA 19109 (b) Counsel for Defendants, Peter J. Russo, Esquire Law Offices of Peter J. 5006 East Trindle Road., Mechanicsburg, PA 17050 P.C. Suite 2100 Greenawalt Russo, P.C. Suite 203 3. I will notify all parties in writing within two (2) days that this case has been listed for argument. 4. Argument Cqurt Date: Date: July 16, 2014 August 15, 2014 for Plaintiff .4. rrt r . r 419.2S ?ciAlikf cite All,1,,S11. j� ,208 `-7 LAW OFFICES OF PETER J. RUSSO, P.C. Peter J. Russo, Esquire PA Supreme Court ID: 72897 Email: prusso@pjrlaw.com 5006 East Trindle Road, Suite 203 Mechanicsburg, PA 17050 Telephone: (717) 591-1755 Facsimile: (717) 591-1756 Attorneys for Defendants PR STONEHEDGE SQUARE LP, by And through its General Partner PR Stonehedge Square GP, LLC, Plaintiffs vs. JACK R. GREENAWALT, Jr. and TINA GREENAWALT and MATTHEW D. POPIK and DANIELLE POPIK Defendants 'ILEA) -OFFICE tir THE PROTHONOTARY 20I4 AUG -4 AM IJ: 53 CUMBERLAND COUNTY PENNSYLVANIA COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA NO. 14 -212 -CIVIL DEFENDANTS' JACK R. GREENAWALT and TINA GREENAWALT RESPONSE TO PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT AND NOW COMES Jack R. Greenawalt, Jr. and Tina Greenawalt ("Answering Defendants"), by its attorneys, Law Offices of Peter J. Russo, P.C., files its responses to Plaintiffs Motion for Summary Judgment and in support thereof, avers as follows: 1. Denied. Answering Defendants believe there are material facts which are in dispute which require additional discovery. Including, but not limited to: a) the extent of damages incurred by Plaintiff; b) whether Plaintiff properly mitigated its damages; c) whether Plaintiff provided Answering Defendants notice as required by the written agreements of the parties; d) whether Plaintiff has or will receive any funds for this obligation from the other defendants, Matthew D. and Danielle Popik; and e) whether all payments made by the Popiks were properly applied to the account ledger. 2. Admitted. 3. Admitted. 4. Admitted. 5. Admitted. 6. Admitted with qualification. Jack R. Greenawalt is one of the named defendants. There are two additional defendants who are named in this suit who have filed a petition for bankruptcy. To date, Plaintiff has not sought leave of the bankruptcy court to proceed with this litigation. 7. Admitted with qualification. Tina Greenawalt is one of the named defendants. There are two additional defendants who are named in this suit who have filed a petition for bankruptcy. To date, Plaintiff has not sought leave of the bankruptcy court to proceed with this litigation 8. Admitted. 9. Admitted. 10. Admitted in part and denied in part. While it is admitted there was a document executed between the parties noted in this paragraph, as a written document it speaks for itself, therefore any averments in paragraph 10 relating to the terms of the document are denied. 11. Admitted in part and denied in part. While it is admitted there was a document executed between the parties noted in this paragraph, as a written document it speaks for itself, therefore any averments in paragraph 11 relating to the terms of the document are denied. 12. Admitted in part and denied in part. While it is admitted there was a document executed between the parties noted in this paragraph, as a written document it speaks for itself, therefore any averments in paragraph 12 relating to the terms of the document are denied. 13. Admitted in part and denied in part. While it is admitted there was a document executed between the parties noted in this paragraph, as a written document it speaks for itself, therefore any averments in paragraph 13 relating to the terms of the document are denied. 14. Admitted in part and denied in part. While it is admitted there was a document executed between the parties noted in this paragraph, as a written document it speaks for itself, therefore any averments in paragraph 14 relating to the terms of the document are denied. 15. Admitted in part and denied in part. While it is admitted there was a document executed between the parties noted in this paragraph, as a written document it speaks for itself, therefore any averments in paragraph 15 relating to the terms of the document are denied. 16. Denied. The averments contained in paragraph 16 present an averment which is the ultimate issues in the proceeding and it is therefore denied pursuant to Rohrer v. Pope, 918 A.2d 122 (Pa. Super. 2007). By way of further response, Answering Defendants were in no position to know whether Matthew D. and Danielle Popik were in default unless Plaintiff notified the Answering Defendants. 17. Denied. The averments contained in paragraph 17 present an averment which is the ultimate issues in the proceeding and it is therefore denied pursuant to Rohrer v. Pope, 918 A.2d 122 (Pa. Super. 2007). By way of further response, while it is admitted there was a document executed between the parties noted in this paragraph, as a written document it speaks for itself, therefore any averments in paragraph 17 relating to the terms of the document are denied. 18. Denied. The averments contained in paragraph 18 present an averment which is the ultimate issues in the proceeding and it is therefore denied pursuant to Rohrer v. Pope, 918 A.2d 122 (Pa. Super. 2007). By way of further response, while it is admitted there was a document executed between the parties noted in this paragraph, as a written document it speaks for itself, therefore any averments in paragraph 18 relating to the terms of the document are denied. 19. Admitted in part and denied in part. While it is admitted that Answering Defendants were notified on September 27, 2013 of the Popik default, it should be noted that: a) This was the first time that the Plaintiff notified the Answering Defendants that the Popik's had not complied with the terms of the Lease; b) By this time, the Popik's had not paid rent for nearly five (5) months; and c) The Letter of Default only provided five (5) days to cure the default rather than fifteen (15) as provided for in the Lease therefore making the notice of default invalid. All of which raise addition concerns of whether there are genuine issues of material facts in this matter. 20. Denied. The averments contained in paragraph 20 present an averment which is the ultimate issues in the proceeding and it is therefore denied pursuant to Rohrer v. Pope, 918 A.2d 122 (Pa. Super. 2007). By way of further response, while it is admitted there was a document executed between the parties noted in this paragraph, as a written document it speaks for itself, therefore any averments in paragraph 20 relating to the terms of the document are denied. 21. Denied. Answering Defendants have no idea, given the fact that the leasehold property was in the possession of Matthew D. and Danielle Popik since May of 2012 and the first time Plaintiff provided any type of information that the Popik's were not in complete compliance with the terms of the Lease was September of 2013, what amounts have been paid and/or credited, therefore Answering Defendants are without sufficient information or knowledge to form an answer to the averments contained in paragraph 21. 22. Denied. The averments contained in paragraph 22 are a conclusion of law with which no response is required. By way of further response, if any portion of this averment is deemed factual, Answering Defendants admitted there was a document executed between the parties noted in this paragraph, as a written document it speaks for itself, therefore any averments in paragraph 22 relating to the terms of the document are denied. Additionally, Answering Defendants deny the amounts due as set forth by Plaintiff as a proper accounting of the Popiks' payments has not been provided nor has Plaintiff mitigated its damages. Finally, since the filing of Answering Defendants' Answer and New Matter, Answering Defendants have been led to believe, through Plaintiffs counsel that Plaintiff may have re -let the leasehold property therefore seeking damages though the term of the lease would be inequitable. WHEREFORE, this Honorable Court should deny the relief sought by the Plaintiff. B Date: g-q-ILI Respectfully submitted, LAW OFFICES OF PETER J. RUSSO, P.C. Peter J. Russo, s uire PA Supreme Court ID: 72897 5006 East Trindle Road, Suite 203 Mechanicsburg, PA 17050 Telephone: (717) 591-1755 Facsimile: (717) 591-1756 Attorneys for Answering Defendants PR STONEIIEDGE SQUARE LP, by . And through its General Partner : COURT OF COMMON PLEAS PR Stonehedge Square GP, LLC, CUMBERLAND COUNTY, PENNSYLVANIA Plaintiffs ; vs. JACK R. GREENAWALT, Jr. and ; NO.14-212-CIVIL TINA GREENAWALT and MATTHEW D. POPIK and DANIELLE POPIK Defendants VERIFICATION We, Jack R. Greenawalt, Jr. and Tina Greenawalt, verify that the statements made in the foregoing document(s) are true and correct. We understand that false statements made herein are subject to the penalties of 18 Pa.C.S. § 4904 relating to unsworn falsification to authorities. Date: Date: Tina Greenawalt PR STONEHEDGE SQUARE LP, by And through its General Partner PR Stonehedge Square GP, LLC, Plaintiffs vs. JACK R. GREENAWALT, Jr. and TINA GREENAWALT and MATTHEW D. POPIK and DANIELLE POPIK Defendants COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA NO. 14 -212 -CIVIL CERTIFICATE OF SERVICE I, Ashley R. Malcolm, Paralegal, hereby certify that I am on this day serving a copy of the foregoing document upon the person(s) and in the manner indicated below as follows: United States Regular Mail Peter A. Lesser, Esq. Dana S. Plon, Esq. Sirlin Lesser & Benson, P.C. 123 South Broad Street, Suite 2100 Philadelphia, PA 19109 Matthew D. Popik and Danielle Popik 1728 Creek Vista Drive New Cumberland, PA 17070 Ashley R. co m, Paralegal Date: 8 -q I LA PR STONEHEDGE SQUARE LP, by and through its General Partner: PR Stonehedge Square GP LLC, Plaintiff : IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA v. : CIVIL ACTION — LAW m JACK R. GREENAWALT, JR. and "' TINA GREENAWALT <, and > c) MATTHEW D. POPIK z>. and -c. DANIELLE POPIK, Defendants : NO. 14-212 CIVIL TERM IN RE: PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT AGAINST DEFENDANTS, JACK R. GREENAWALT, JR. AND TINA GREENAWALT /N7 Q C) N w BEFORE HESS, P.J., EBERT, AND PECK, JJ. ORDER OF COURT AND NOW, this 29th day of October, 2014, upon consideration of Plaintiff's Motion for Summary Judgment, the briefs filed by the parties, and oral argument, IT IS HEREBY ORDERED AND DIRECTED that Plaintiff's Motion for Summary Judgment is partially GRANTED as to Defendant Jack R. Greenawalt, Jr. and Tina Greenawalt and liability for Tenant Heckepop, Inc.'s breach of the Shopping Center Lease. The parties are further directed to conduct discovery regarding the amount of damages, if any, resulting from Tenant Heckepop, Inc.'s breach for which Defendants Jack R. Greenawalt, Jr. and Tina Greenawalt are liable. See Pa.R.C.P. 1035.3(c). BY THE COURT, Christylee L. Peck, J. ana S. Pion, Esq. Sirlin Lesser & Benson, P.C. 123 South Broad Street, #2100 Philadelphia, PA 19109 Attorney for Plaintiff J. Russo, Esq. Law Offices of Peter J. Russo 5006 East Trindle Road, Suite 203 Mechanicsburg, PA 17050 Attorney for Defendants Jack R. Greenawalt and Tina Greenawalt Corw'es 14A9/ PR STONEHEDGE SQUARE LP, : IN THE COURT OF COMMON PLEAS OF by and through its General Partner: : CUMBERLAND COUNTY, PENNSYLVANIA PR Stonehedge Square GP LLC, Plaintiff v. : CIVIL ACTION — LAW JACK R. GREENAWALT, JR. and TINA GREENAWALT and MATTHEW D. POPIK and DANIELLE POPIK, Defendants : NO. 14-212 CIVIL TERM IN RE: PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT AGAINST DEFENDANTS, JACK R. GREENAWALT, JR. AND TINA GREENAWALT BEFORE HESS, P.J., EBERT and PECK, JJ. OPINION and ORDER OF COURT Peck, J., October 29, 2014, Before this Court is Plaintiff's Motion for Summary Judgment Against Defendants, Jack R. Greenawalt, Jr. and Tina Greenawalt. Plaintiff's motion seeks judgment in its favor in the amount of $71,241.26 plus attorneys' fees and costs. For the reasons set forth below, this Court grants Plaintiff's motion as to liability. Procedural History On January 8, 2014,.Plaintiff filed a Complaint for breach of a commercial lease and guaranty. The Complaint alleges that Heckepop, Inc. ("Tenant") breached the Shopping Center Lease ("Lease"), see Complaint, Exhibit A, by failing to pay rent. The Complaint also alleges that Defendants Jack R. Greenawalt, Jr. and Tina Greenawalt ("Defendants"), who had assigned their rights, title and interest in, to and under the Lease to Tenant, are jointly and severally liable to Plaintiff for Tenant's alleged breach. On April 22, 2014, Defendants filed an Answer with New Matter and Affirmative Defenses. On April 30, 2014, Plaintiff filed a Reply to New Matter and Affirmative Defenses of Defendants, Jack R. Greenawalt and Tina Greenawalt. On July 18, 2014, Plaintiff filed a Motion for Summary Judgment Against Defendants, Jack R. Greenawalt and Tina Greenawalt. On August 4, 2014, Defendants filed a Response to Plaintiff's Motion for Summary Judgment. Argument was heard on Plaintiff's Motion for Summary Judgment on August 15, 2014. DISCUSSION Pennsylvania Rule of Civil Procedure 1035.2 provides: After the relevant pleadings are closed, but within such time as not to unreasonably delay trial, any party may move for summary judgment in whole or in part as a matter of law (1) whenever there is no genuine issue of any material fact as to a necessary element of the cause of action or defense which could be established by additional discovery or expert report, or (2) if, after the completion of discovery relevant to the motion, including the production of expert reports, an adverse party who will bear the burden of proof at trial has failed to produce evidence of facts essential to the cause of action or defense which in a jury trial would require the issues to be submitted to a jury.' Additionally, "[p]artial summary judgment ... may be rendered on one or more issues of liability, defense or damages."2 Where judgment is not rendered upon the whole case, a court may direct "such further proceedings in the action as are just."3 Once a motion for summary judgment has been filed, an "adverse party may not rest upon the mere allegations or denials of the pleadings ...."4 Rather, an adverse party has thirty days to file a response identifying: 1 Pa.R.C.P. 1035.2. 2 Pa.R.C.P. 1035.2, Note. 3 Pa. R.C.P. 1035.5. 2 (1) one or more issues of fact arising from the evidence in the record controverting the evidence cited in support of the motion or from a challenge to the credibility of one or more witnesses testing in support of the motion, or (2) evidence in the record establishing the facts essential to the cause of action or defense which the motion cites as not having been produced.5 With respect to pleadings, "[a] responsive pleading shall admit or deny each averment of fact in the preceding pleading or any part thereof to which it is responsive."6 However, "[a] general denial or demand for proof . . shall have the effect of an admission."' Liability In the present matter, paragraphs 10 through 15 of the Complaint allege the following: 10. On or about June 16, 2009, Cedar-Stonehedge LP, successor to Stonehedge Center LLC, and the Greenawalts entered into a Lease Modification Agreement 11. On or about May 16, 2012, the Greenawalts assigned their rights, title and interest in, to and under the Lease to Heckepop, Inc. (hereinafter "Tenant") 12. Plaintiff consented to the Assignment on the condition, among other things, that the Greenawalts shall not be relieved of their obligations under the Lease 13. On or about May 16, 2012, defendants, Matthew D. Popik and Danielle Popik ... , guaranteed the obligations of Tenant under the Lease 14. Pursuant to the Lease, Tenant is responsible for the payment of monthly rent in the amount of $3,166.67 plus common area maintenance charges, taxes, management fees and utilities 4 Pa. R.C.P. 1035.3. 5 Pa.R.C.P. 1035.3(a)(1) and (2). 6 Pa.R.C.P. 1029(a). Pa.R.C.P. 1029(b). 3 14 15. Tenant is in default of the terms of the Lease by virtue of its failure to pay rent and proper charges in the amount of $34,235.26 through December 2013 8 Defendants answered the above averments as follows: 10. Admitted in part and denied in part. While it is admitted the parties have a written lease, the document speaks for itself, therefore any averments in paragraph 10 relating to the terms of the lease are denied. 11. Admitted in part and denied in part. While it is admitted the parties have a written lease which may have had an assignment, the document speaks for itself, therefore any averments in paragraph 11 relating to the terms of the lease or assignment are denied. 12. Admitted in part and denied in part. While it is admitted the parties have a written lease which may have had an assignment, the document speaks for itself, therefore any averments in paragraph 12 relating to the terms of the lease or assignment are denied. 13. Admitted in part and denied in part. While it is admitted the parties have a written lease which may have had an assignment,the document speaks for itself, therefore any averments in paragraph 13 relating to the terms of the lease or assignment are denied. 14. Admitted in part and denied in part. While it is admitted the parties have a written lease, the document speaks for itself, therefore any averments in paragraph 14 relating to the terms of the lease are denied. 15. Admitted in part and denied in part. While it is admitted the parties have a written lease, the document speaks for itself, therefore any averments in paragraph 15 relating to the terms of the lease are denied. By way of further response, the averments in paragraph 15 are conclusions of law to which no response is required.9 Focusing on Defendants' answer to paragraph 15 of the Complaint, we find two denials: first, Defendants deny any averments relating to the terms of the Lease and second, Defendants deny the averments of paragraph 15 as conclusions of law. However, 8 Complaint, ¶1110-15. 9 Defendants' Answer to Complaint and New Matter and Affirmative Defenses, ¶¶ 10-15. 4 paragraph 15 of the Complaint clearly contains the factual averment that Tenant failed to pay rent through December of 2013. As this factual averment is neither a term of the lease nor a conclusions of law, and as it was neither generally nor specifically denied by Defendants, as required by Pa.R.C.P. 1029(b), it is deemed admitted.10 Having established that Tenant's failure to pay rent was admitted by Defendants, and thus no genuine issue of material fact exists in that regard, we now turn to whether Tenants failure to pay rent was a breach of the Lease and whether Defendants are liable if such breach occurred. For the following reasons, we find that Tenant did breach the Lease and that Defendants are liable to Plaintiff for that breach. In a letter dated May .16, 2012, Plaintiff consents to the assignment of the Lease from Defendants to Heckepop, Inc., upon certain terms and conditions contained in that letter. In particular, paragraph 7 of the letter of consent states: Landlord shall be under no obligation to commence proceedings or exhaust any of its remedies against Assignee before proceeding against Assignor, or against Assignor before proceeding against Assignee, for any redress provided for in the Lease or this Consent, or at law or equity, and Assignor and Assignees acknowledge and agree that they shall remain jointly and severally liable at all times for all obligations of the tenant accruing under or with respect to the Lease." As Defendants are jointly and severally liable for "all obligations of the tenant," Defendants are liable to Plaintiff for any default of Tenant. 10 See Pa.R.C.P. 1029(b). While subsection (c) of Rule 1029 provides an exception to the requirements of subsection (b), allowing a party to state that "after reasonable investigation the party is without knowledge or information sufficient to form a belief as to the truth of an averment," Defendants chose not to avail themselves of that exception. Additionally, Defendants, in their Response to Plaintiff's Motion for Summary Judgment, stated that, by the time they were notified of Tenant's default, Tenant had not paid rent for nearly five (5) months. Defendants' Jack R. Greenawalt and Tina Greenawalt Response to Plaintiff's Motion for Summary Judgment, ¶ 19(b). This response is further admission by Defendants that Tenant had not paid rent. 11 Plaintiffs Motion for Summary Judgment Against Defendants, Jack R. Greenawalt, Jr. and Tina Greenawalt, Exhibit F, 117 (emphasis added). 5 With regards to Tenant's failure to pay rent, paragraph 15, subsection (A)(1), of the Lease states: "(A) Any one of the following shall be a default by Tenant: (1) if Tenant fails to pay Rent, Security Deposit or other money, or to provide a certificate of insurance or to provide an estoppel certificate as required by Article 27 when due ...."12 As Tenant did fail to pay rent, Tenant has defaulted under the terms of the Lease. Although we find that Defendants are liable, we will briefly address two defenses raised by Defendants. First, Defendants argue that, pursuant to paragraph 15 of the Lease, "Plaintiff must provide written notice of a default and then the condition of default must last fifteen (15) days thereafter."13 Citing the Default Notice sent to Defendants by Plaintiff on September 27, 2013, Defendants contend that the Notice gave "the Answering Defendants five (5) days rather than the fifteen (15) days required under the terms of the lease to correct the default otherwise litigation is threatened."14 Defendants, however, misconstrue paragraph 15 of the Lease. Subsection (B) of paragraph 15 reads in pertinent part: If (i) a default described in subsection 15(A)(1) or in subsections 15(A)(3) through (7) inclusive occurs, or (ii) a default described in subsections 15(A)(2) or 15(A)(8) occurs and continues for more than fifteen (15) days after written notice from Landlord, then in any of such cases Landlord or its agent shall have the right to enter the Leased Premises and dispossess Tenant and all other occupants and their property by legal proceedings, use of reasonable force (under the conditions allowed in Article 15(F) hereof) or otherwise.15 12 Plaintiff's Motion for Summary Judgment Against Defendants, Jack R. Greenawalt, Jr. and Tina Greenawalt, Exhibit A, ¶ 15(A)(1). 13 Defendants' Jack R. Greenawalt and Tina Greenawalt Brief in Opposition to Plaintiff's Motion for Summary Judgment, p. 4. 14 Defendants' Jack R. Greenawalt and Tina Greenawalt Brief in Opposition to Plaintiff's Motion for Summary Judgment, p. 4. 15 Plaintiff's Motion for Summary Judgment Against Defendants, Jack R. Greenawalt, Jr. and Tina Greenawalt, Exhibit A, ¶ 15(B). 6 The above conditional's antecedent, the 'if' clause, consists of a disjunction with two alternatives separated by 'or'. The first alternative is labeled (i) and the second alternative is labeled (ii) and follows the disjunction 'or'. Separating the two alternatives gives: (i) a default described in subsection 15(A)(1) or in subsections 15(A)(3) through (7) inclusive occurs, or (ii) a default described in subsections 15(A)(2) or 15(A)(8) occurs and continues for more than fifteen (15) days after written notice from Landlord. . . . With the antecedent dissected, it is clear that the fifteen (15) day requirement only applies to default under subsections 15(A)(2) and 15(A)(8), not to defaults, as here, under subsection 15(A)(1). Any other reading of subsection (B) would render its division of 15(A)'s subsections into two groups – (i) includes 15(A)(1) and 15(A)(3) through 15(A)(7) while (ii) includes 15(A)(2) and 15(A)(8) - superfluous. If the fifteen (15) day period were meant to apply to all defaults under subsection (A)(1), it would simply read: if a default described in subsection (A) occurs and continues for more than fifteen (15) days after written notice from Landlord, and so on. Thus, contrary to Defendants' claim, the Default Notice sent to Defendants on September 27, 2013, is not invalid. Plaintiff was under no obligation to provide Defendants with fifteen (15) days from the date of the Notice to cure Tenant's default under subsection 15(A)(1). Second, Defendants allege that the automatic stay afforded to the Popiks pursuant to 11 U.S.C. § 362(a) as a result of their filing for Chapter 7 Bankruptcy should also automatically stay the instant proceedings against Defendants. We disagree. Section 362(a) of Title 11 states: (a) Except as provided in subsection (b) of this section, a petition filed under section 301, 302, or 303 of this title [11 USCS § 301, 302, or 303], or an application filed under section 5(a)(3) of the Securities Investor Protection Act of 1970 [15 USCS § 78eee(a)(3)], operates as a stay, applicable to all entities, of— (1) the commencement or continuation, including the issuance or employment of process, of a judicial, administrative, or other action or proceeding against the debtor that was or could have been commenced 7 before the commencement of the case under this title, or to recover a claim against the debtor that arose before the commencement of the case under this title[.]16 While the plain language of section 362 applies only to actions or proceedings against the debtor, the Popiks in the present matter, Defendants cite case law for the proposition that such a stay can be extended "to nonbankrupt codefendants in `unusual circumstances' ."17 However, Defendants have provided no case law, and this Court is aware of none, holding that section 362 stays proceedings against a debtor's codefendant(s) automatically without a court first finding that "unusual circumstances" exist and then granting a stay.18 As no order staying the present proceeding has as of yet been issued by the bankruptcy court, Plaintiff's suit may proceed against Defendants. Accordingly, Plaintiff's motion for summary judgment against Defendants Jack R. Greenawalt, Jr. and Tina Greenawalt is partially granted as to the fact of liability. The parties are directed to conduct discovery and further litigate the damages, if any, due to Plaintiff as a result. ORDER OF COURT AND NOW, this 29th day of October, 2014, upon consideration of Plaintiffs Motion for Summary Judgment, the briefs filed by the parties, and oral argument, IT IS HEREBY ORDERED AND DIRECTED that Plaintiff's Motion for Summary Judgment is partially GRANTED as to Defendant Jack R. Greenawalt, Jr. and Tina Greenawalt and liability for Tenant Heckepop, Inc.'s breach of the Shopping Center Lease. 16 11 U.S.C.§ 362. 17 Defendants' Jack R. Greenawalt and Tina Greenawalt Brief in Opposition to Plaintiff's Motion for Summary Judgment, p. 6. 18 "Unusual circumstances" arise "when there is such identity between the debtor and the third -party defendant that the debtor may be said to be the real party defendant and that a judgment against the third - party defendant will in effect be a judgment or finding against the debtor." A.H. Robins Co. v. Piccinin, 788 F.2d 994, 999 (4th Cir. 1986). 8 The parties are further directed to conduct discovery regarding the amount of damages, if any, resulting from Tenant Heckepop, Inc.'s breach for which Defendants Jack R. Greenawalt, Jr. and Tina Greenawalt are liable. See Pa.R.C.P. 1035.3(c). BY THE COURT, s/ Christylee L. Peck Christylee L. Peck, J. 9 Peter A. Lesser, Esquire Dana S. Plan, Esquire dplon@sirlinlaw.com Identification No. 59433/80361 SIRLIN LESSER & BENSON, P.C. 123 South Broad Street, Suite 2100 f41 Philadelphia, PA 191.09 (215) 864-9700 Attorney for Plaintiff PR STONEHEDGE SQUARE LP, by -and through: its General Partner: PR Stonehedge Square GP LLC, CUMBERLAND COUNTY COURT OF COMMON PLEAS v. No. 14-212 - Civil• JACK R.:GREENAWALT, JR. and TINA GREENAWALT and MATTHEW D. POPIK and DANIELLE POPIK ORDER TO SETTLE, DISCONTINUE AND END TO THE PROTHONOTARY: Kindly mark the above -captioned action settled, discontinued and ended as to defendants, Jack R. Greenawalt and Tina Greenawalt ONLY. A o net"'or Plaintiff' January 14, 2015