HomeMy WebLinkAbout14-4900 i _ a
Supreme Coin o ennsylvania
Cou F bDAnlnlo leas For Prothonotary Use Only:
C >tbVe '' h'"t Docket No:
Cu erland 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 of pleadings or other papers as required by law or rules of court.
Commencement of Action:
Complaint 0 Writ of Summons Petition
Transfer from Another Jurisdiction Declaration of Taking
E
C Lead Plaintiff's Name: Lead Defendant's Name:
PR Real Estate LLC and Home Elite, Ltd. Keith Wilkes
T Dollar Amount Requested: Owithin arbitration limits
I Are money damages requested? El Yes 0 No
(check one) [R]outside arbitration limits
0
N Is this a Class Action Suit? 0 Yes El No Is this an MDJAppeal? CI Yes El No
A, Name of Plaintiff/Appellant's Attorney: Frank G. Murphy, Esquire
Check here if you have no attorney(are a Self-Represented (Pro Se! Litigant)
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.
TORT(do not include Mass Tort) CONTRACT(do not include Judgments) CIVIL APPEALS
u Intentional 0 Buyer Plaintiff Administrative Agencies
0 Malicious Prosecution 0 Debt Collection:Credit Card P Board of Assessment
Motor Vehicle E3 Debt Collection:Other D Board of Elections
Nuisance 0 Dept.of Transportation
0 Premises Liability Statutory Appeal:Other
S 0 Product Liability(does not include Employment Dispute:
E mass tort)
Slander/Libel/Defamation Discrimination
C Other: Employment Dispute:Other El Zoning Board
T 0 Other:
I Ox Other:
O MASS TORT Breach of Contract-Tenant
0 Asbestos Landlord
N Tobacco
0 Toxic Tort-DES
0 Toxic Tort-Implant REAL PROPERTY MISCELLANEOUS
Toxic Waste
E3 Other: 0 Ejectment 0 Common Law/Statutory Arbitration
13 0 Eminent Domain/Condemnation 0 Declaratory Judgment
0 Ground Rent 0 Mandamus
0 Landlord/Tenant Dispute 0 Non-Domestic Relations
(Q Mortgage Foreclosure:Residential Restraining Order
PROFESSIONAL LIABLITY 0 Mortgage Foreclosure:Commercial Quo Warranto
Dental 0 Partition Replevin
0 Legal 0 Quiet Title 0 Other:
Medical 0 Other:
® Other Professional:
Updated 1/1/2011
IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY,PENNSYLVANIA
PR Real Estate LLC and Home Elite, LTD.
Plaintiff (•V;
vs ,
August Term 2014; No. 1 Ll
Keith Wilkes
Defendant
NOTICE TO DEFEND v '
YOU HAVE BEEN SUED 1N 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
ztl s. 7s
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ANDERSON KILL P.C.
BY: Frank G. Murphy, Esquire
Arthur R. Armstrong, Esquire
PA I.D. Nos. 65886; 203816
1600 Market Street, Suite 2500
Philadelphia, PA 19103
(267) 216-2700
fmurphy@andersonkill.com
aarmstrong@andersonkill.com Attorneys for Plaintiff
COURT OF COMMON PLEAS
PR REAL ESTATE, LLC, AND HOME CUMBERLAND COUNTY
ELITE, LTD., AS TENANTS IN COMMON,
C/O PINTZUK BROWN REALTY GROUP AUGUST TERM 2014
491 Old York Road, Suite 200
Jenkintown, PA 19046 NO.
Plaintiff,
V.
KEITH WILKES
4700 Westport Dr.
Mechanicsburg, PA 17055
Defendant.
COMPLAINT
Plaintiffs, PR Real Estate, LLC, and Home Elite, Ltd., as Tenants in Common,
C/O Pintzuk Brown Realty Group, (collectively, "Plaintiff'), by and through its attorneys
Anderson Kill P.C., files this Complaint and, in support hereof, states as follows:
THE PARTIES
1. Plaintiff is the owner of the commercial realty located at and commonly
known as East Gate Shopping Center, Suites 15 and 16, Mechanicsburg, Cumberland
County, Pennsylvania (the "Premises").
2. Plaintiff has an office and place of business located at 491 Old York Road,
Suite 200, Jenkintown, Pennsylvania 19046.
3. Defendant, Keith Wilkes ("Defendant") is, upon information and belief, the
owner of Fear Knot, Inc., a Pennsylvania corporation, with a place of business located
at 4700 Westport Drive, Mechanicsburg, Pennsylvania 17055.
COUNT
(BREACH OF CONTRACT)
4. Plaintiff incorporates by reference the foregoing paragraphs as if fully set
forth herein at length.
5. In or around April 2007, Plaintiff entered into a Lease Agreement (the
"Lease") with Z's Karate Studio, LLC, for the Premises. A true and correct copy of the
Lease is attached hereto as Exhibit "A".
6. The term of the Lease was through June 30, 2012, with two (2) three-year
options to renew. See Exhibit "A."
7. On May 7, 2009, the Lease was assigned to Defendant's company, Fear
Knot, Inc. ("Tenant") pursuant to that certain Assignment and Assumption of Lease
Agreement dated May 7, 2009 (the "Assignment"). A true and correct copy of the
Assignment is attached hereto as Exhibit "B."
8. Under the Assignment, Tenant obtained all the rights and assumed all of
the obligations of Z's Karate Studio, LLC, under the Lease. See Assignment at¶ 2.
9. Defendant was a personal guarantor of Tenant's obligations under the
Lease. See Assignment at p. 5.
10. The Lease term was extended, and Tenant continued to occupy the
Property until December 2012, at which time Tenant abandoned and allegedly
surrendered the Premises.
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w
11. At the time Tenant surrendered the Premises, past rent in the amount of
$54,945.84 was due and owing on the Lease; however, Defendant failed to pay the
amount due. A true and correct copy of the Account History is attached hereto as
Exhibit "C."
12. Although the Lease contains "without demand" language, Plaintiff
demanded payment of the past rent and gave notice of default on several occasions.
True and correct copies of Demand Letters are attached hereto as Exhibit "D."
13. To date, Tenant and Defendant have continued its failure and refusal to
pay the rent due.
14. Under the terms of the Assignment and the Lease, if Plaintiff engages an
attorney to represent it, Tenant will pay such amounts incurred by Plaintiff, including
Plaintiff's attorneys' fees and legal expenses. See Assignment at ¶ 12; Lease at%¶47,
68.
15. Pursuant to the Lease, Tenant agreed to pay real estate taxes, water,
sewer, gas and electricity expenses, as well as common area maintenance charges.
See Lease at%T 4, 22, 40.
16. As of December, 2014, the amount due and owing by Tenant, and
therefore also due and owing from Defendant, for unpaid rent under the Lease is
$54,945.84. See Account History.
17. Plaintiff is the current holder of the Lease.
WHEREFORE, Plaintiff hereby demands judgment be entered in its favor and
against Defendant in the amount of $54,945.84, plus attorneys' fees, together with such
other and further relief as the Court may deem proper.
- 3 -
ANDERSON KILL P.C.
By: /A
Fr k G. Murphy, ffsquire
Arthur R. Armstrong, Esquire
PA I.D. Nos. 65886; 203816
1600 Market Street, Suite 2500
Philadelphia, PA 19103
(267) 216-2700
fmurphy@andersonkill.com
r/ aarmstrong@andersonkill.com
Dated: August �a, 2014
Attorneys for Plaintiff
- 4 -
VERIFICATION
I, Scott G. Homel, state that I am authorized to make this Verification on behalf of
Plaintiff, and that the facts set forth in the preceding Complaint are true and correct to
the best of my information and belief. This Verification is made with knowledge of the
penalties contained in 18 Pa.C.S.A. Section 4904, relating to unsworn verification to
authorities.
By:
Scott G. Porn;
J '
Title: �C
Dated:
9
BASIC LEASE PROVISIONS
The following Basic Lease Provisions embody the agreement of the parties hereto, subject to further
terms and conditions set forth elsewhere in this Lease. Should the terms set forth below differ from any
term or condition in the Lease,then the Lease shall be deemed controlling.
Parties: Landlord: PR REAL ESTATE,LLC&HOME ELITE,
LTD,AS TENANTS IN COMMON
Tenant: Z's Karate Studio,LLC
Leased Premises or Premises: EAST GATE SHOPPING CENTER
MECHANICSBURG,PA
SUITES 15 & 16
(1) Term approx.Five(5)Years-(plus-2 rent-free)
(2) Date for Delivery of Possession: ` Upon Execution(+/-April 26,2007)
(3) Rent Commencement Date: 60 days after Possession(+/-June 26,2007)
(4) Beginning of Term: . Upon Possession(+/-April 26,2007)
(5) Lease Expiration Date: June 30,2012
(6) Lease Year&Base Rent:
Lease Year 1 $22,000.00 per year ($1,833.33/mo.)
Lease Year 2 $22,660.00 per year ($1,888.33/mo.)
Lease Year 3 $23,339.80 per year ($1,944.98/mo.)
Lease Year 4 $24,039.99 per year ($2,003.33/mo.)
Lease Year 5 $24,761.19 per year ($2,063.43/mo.)
(7) Option Term: Two(2),Three(3)Year Options to renew with 90 Days prior
written notice•,Time is of the essence.
(8) Option Term Base Rent: No less than 3%annual increases over then prior years' base
rent subject to Section 71 contained herein. Base Rent to be
negotiated in good faith at time of notice.
(9) Gross Square Feet of
the Leased Premises: 4,000 f square feet
(10) Gross Square Feet of
Building(s)in the Center
(the"Rentable Area"): 36,000 square feet
(11) Tenant's Proportionate Share: 11.11%
Lcese Template PA
(12) Additional Rent: Tenants full Proportionate Share: CAM,Taxes,Insurance.
First Year CTI=$1,166.00 Per Month
(13) Tenant's Trade Name: Z's Karate Studio
(14) Security Deposit: $1,833.33
(15) Use: Karate Studio, including Karate Instruction,practice and
preparation,related administrative offices and sale of karate
gear.
(16) Execution Deadline: April 27,2007
(17) Delivery Condition: As-Is,Where-Is.
(18) Rent: The Base Rent plus any and all Additional Rent charges
under the Lease.
(19) Trash Removal: Tenant responsible for its own trash removal
(20) Percentage Rent: N/A
(21) Notices: If To Landlord:
PR Realty,LLC&Home Elite,Ltd
C/O Pintzuk Brown Realty Group,Inc.
491 Old York Rd, Suite 200
Jenkintown,PA 19046
If to Tenant:
Z's Karate Studio,LLC
907 Lancelot Avenue
Mechanicsburg,PA 17055
(22) Lease Exhibits: A,A-1,B,D,E,F,G,H
2
�L �
This Agreement is made on April 2007
BETWEEN
PR REAL ESTATE,LLC&HOME ELITE,LTD,AS TENANTS IN COMMON
residing or located at
c% Pintzuk Brown Realty Group,Inc, 491 Old York Rd,Suite 200,Jenkintown,PA 19046
herein designated as the"Landlord,,,
AND
Z's Karate Studio,LLC
With a registered address of
907 Lancelot Avenue,Mechanicsburg,PA 17055
herein designated as the`°Tenant.,,
1. Leased Premises. The Landlord does hereby lease to the Tenant and the Tenant does hereby rent from the
Landlord,the Leased Premises(also know n as the"Premises")as described in the Basic Lease Provisions,supra.
2. Term. The Landlord does hereby lease to the Tenant and the Tenant does hereby rent from the Landlord,the
Leased Premises for the Team as described in the Basic Lease Provisions,supra.
3. Use of Premises and Common Areas. Tenant shall in good faith continuously throughout the
Term of this Lease conduct and carry on in the entire Premises the type of business described in Article
15 of the Basic Lease Provisions using Tenant's trade name, and the Premises shall not be used for any
other purpose. Tenant specifically agrees that its use of the Premises shall never violate any of the
restrictions set forth on Exhibit "D" attached hereto. Tenant shall not sell, display or solicit sales in the
Common Areas.Tenant shall not use or permit the use of any vending machines or public telephones on,
at, or about the Premises without the prior written consent of Landlord. Tenant shall not commit waste,
perform any acts or cavy on any practices which may injure the Shopping Center or be a nuisance or
menace to other tenants in the Shopping Center. Tenant shall operate its business in a dignified manner
and in accordance with high standards of store operation so as to maintain a character in keeping with the
3
rest of the Shopping Center, and shall at all times when the Premises are open for business with the
public, keep the Premises properly equipped with fixtures, stocked with an adequate supply of
merchandise and attended by adequate personnel. In the use and occupancy of the Premises and with
respect to conditions created at Tenant's request,or as a result of Tenant's performance or breach of any of
its obligations hereunder or any fault of Tenant, Tenant shall, at Tenant's expense, comply with all laws
and ordinances and all valid rules and regulations and all directives, orders and citations of federal, state,
county and municipal authorities having jurisdiction over the Premises, including without limitation the
Americans with Disabilities Act and all requirements of any insurance company and any public or private
agency having authority over insurance rates. Notwithstanding the foregoing, Tenant shall not be
required to make structural alterations to the Premises or the Shopping Center, including but not limited
to widening or adding accessways or curb cuts, nor shall Tenant be required to add spinklers or upgrade
the electrical service to the Premises, it being agreed that the cost of said alterations if required by
governmental authority shall be completed at Landlord's expense. The previous sentence shall only apply
to items that are not required due to Tenant's unique Use of the premises.
4. Rent The Tenant agrees to pay Rent and Additional Rent to Landlord(payable to "PINTZUK-EAST
GATE"unless otherwise directed)per the schedule shown in Article 6 and 12 of the Basic Lease Provisions,supra.
Rent is due on the first day of each month. The first payment of Base Rent,Additional Rent,and Security Deposit are
due upon the signing of the Lease by the Tenant. The Tenant must pay a late charge of ten percent as additional rent
for each payment that is more than 10 days late. This late charge is due with the monthly rent payment. The Tenant
must also pay a fee of$25.00 as additional rent for any dishonored check
5. Late Charge. Other remedies for non-payment of Rent notwithstanding, if any payment due
Landlord by Tenant which does not have a scheduled due date is not received by Landlord on or before
the tenth(10th) day following the date Tenant's rent was due therefore,a late charge of ten percent(10%)
of such past due amount shall be immediately due and payable as Additional Rent hereunder and interest
shall accrue on all delinquent amounts from the date past due until paid at the lower of a rate of one and
one-half percent (1-1/2%) per month or fraction thereof from the date such payment is due until paid
(Annual Percentage Rate= 18%),or the highest rate permitted by applicable law.
6. Partial Payment. No payment by Tenant or acceptance by Landlord of an amount less than the
Rent herein stipulated shall be deemed a waiver of any other Rent due. No partial payment or
endorsement on any check or any letter accompanying such payment of Rent shall be deemed an accord
and satisfaction, but Landlord may accept such payment without prejudice to Landlord's right to collect
the balance of any Rent due under the terms of this Lease or any late charge assessed against Tenant
hereunder.
7. Repairs/Alterations.The Tenant has examined the Leased Prernises and has entered into this Lease
without any representation on the part of the Landlord as to the condition thereof.
(a) Repairs By Landlord. Landlord shall keep the foundation, the roof and the exterior
walls of the Premises (except plate glass, doors, door closures, door frames, store fronts, windows and
window frames located in exterior building walls)in good repair, and Tenant shall pay, as additional rent,
the cost of any such repairs occasioned by the act or neglect of Tenant, its assignees,sublessees, servants,
agents, employees, invitees, licensees, or concessionaires, or the servants,.agents, employees, invitees,
4
licensees, or concessionaires of Tenant's assignees or sublessees, and the cost to repair any damage
caused by or as a result of Tenant's occupancy of Premises, or any damage caused by break-in,burglary,
or other similar acts in or to the Premises, within ten(10)days after demand for payment by Landlord. In
the event that the Premises should become in need of repairs required to be made by Landlord hereunder,
Tenant shall give immediate written notice thereof to Landlord, and Landlord shall not be responsible in
any way for failure to make any such repairs until a reasonable time shall have elapsed after the giving of
such written notice. Landlord may elect by giving notice thereof to Tenant, to require Tenant within a
reasonable time and at Tenant's expense, to make any repairs that Landlord is required to make at
Tenant's expense under this Section,and in such event Tenant shall not be required to pay the cost thereof
to Landlord as additional rent.Notwithstanding the above, if Tenant keeps in full force and effect an
HVAC maintenance contract during the Term, Landlord shall pay for HVAC repairs/replacements over
$200.00. Tenant must notify Landlord in advance of any such qualifying repairs and obtain Landlord's
written approval in order for Landlord to be obligated.
(b) Repairs By Tenant Tenant shall, at its sole cost and expense, keep the Premises in a
safe, sightly, and serviceable condition; Tenant shall at its sole cost and expense supply a dumpster for
Tenants Trash if needed; Tenant shall keep the premises free from any infestation by insects, rodents, or
other pests, and, except as provided in this Section , make all needed maintenance, repairs, and
replacements for the proper operation of Tenant's business within the Premises, including all
maintenance, repairs, and replacements to: (i) the heating, ventilating, and air conditioning systems
serving the Premises; (ii) the exterior and interior portion of all doors, windows, window frames, plate
glass, door closures, door frames and store fronts including exterior signage; (iii) all plumbing and
sewage facilities within the Premises, including free flow up to the connection to the main sewer line,;
(iv) all fixtures within the Premises; (v)all electrical systems serving the Premises(whether or not located
within the Premises);(vi)DELETED; (vii)all interior walls,floors,and ceilings;(viii)any of the Tenant's
Work; (ix) DELETED and (x) all necessary repairs and replacements of Tenant's trade fixtures required
for the proper conduct and operation of Tenant's business.If at any time and from time to time during the
Term, and any extensions and renewals thereof, Tenant shall fail to make any maintenance, repairs, or
replacements in and to the Premises as required in this Lease, Landlord shall have the right,but not the
obligation, to enter the Premises and to make such maintenance, repairs, and replacements for and on
behalf of Tenant, and all sums expended by Landlord for such maintenance, repairs, and replacements
shall be deemed to be additional rent hereunder and shall be payable to Landlord upon demand. At the
termination of this Lease,Tenant shall surrender the Premises in good condition,reasonable wear and tear
and loss by fire or other casualty alone excepted. Tenant shall keep in force a standard maintenance
agreement on all heating,ventilating, and air conditioning systems serving the Premises with a reputable
heating and air conditioning service organization which shall be subject to Landlord's approval and shall
provide a copy of said maintenance agreement to Landlord for its approval. Notwithstanding the above,
Tenant shall be responsible for maintaining at all times during the Term an HVAC Maintenance contract
and shall be responsible in any event for HVAC repairs under$200.00.
8. Compliance with Laws etc. The Tenant shall promptly comply with all laws,
ordinances, rules, regulations, requirements and directives of the Federal, State and Municipal
Governments or Public Authorities and of all their departments, bureaus and subdivisions, applicable to
and affecting the said premises, their use and occupancy, (including, without limitation, the Americans
with Disabilities Act) for the correction, prevention and abatement of nuisances, violations or other
5
grievances in, upon or connected with the said premises, during the term hereof, and shall promptly
comply with all orders, regulations, requirements and directives of the Board of Fire Underwriters or
similar authority and of any insurance companies which have issued or are about to issue policies of
insurance covering the said premises and its contents,for the prevention of fire or other casualty, damage
or injury, at the Tenant's own cost and expense. Notwithstanding the foregoing, Tenant shall not be
required to make structural alterations to the Premises or the Shopping Center, including but not limited
to widening or or adding accessways or curb cuts, nor shall Tenant be required to add spinklers or
upgrade the electrical service to the Premises, it being agreed that the cost of said alterations if required
by governmental authority shall be completed at Landlord's expense. The previous sentence shall only
apply to items that are not required due to Tenant's unique Use of the premises.
9. Assignment The Tenant shall not assign,mortgage or hypothecate this Lease,nor sublet or sublease the
Leased Premises or any part thereof;nor occupy or use the Leased Premises or any part thereof,nor permit or suffer
the same to be occupied or used for any purposes other than as herein limited,nor for any purpose deemed unlawful,
disreputable,or extra hazardous,on account of fixe or other casualty.
10. Destruction or Damage by Casualty. (a) Tenant shall give immediate written notice
to Landlord of any damage to the Premises caused by fire or other casualty,and if Landlord does not elect
to terminate this Lease as hereinafter provided, Landlord shall proceed with reasonable diligence and at
its sole cost and expense to rebuild and repair the Premises. Notwithstanding the foregoing, in the event
that: (i) the insurance proceeds payable in connection with such damage and destruction shall be
insufficient to make such restoration; (ii)the building in which the Premises are located shall be destroyed
or substantially damaged by casualty not covered by standard fire or extended coverage insurance; (iii)
such building shall be destroyed or rendered untenantable by any casualty to the extent of at least fifty
percent (50%) of the Rentable Area of such building; (iv) Landlord shall not have actual and
unconditional receipt of the insurance proceeds payable in connection with such damage and destruction;
(v)the holder of any mortgage,deed to secure debt,deed of trust,or other instrument in the nature thereof
which encumbers Landlord's interest hereunder or in the Premises shall require that such proceeds shall
be applied against any indebtedness owed to such holder; or (vi) there shall be less than two (2) years
remaining in the Term, or any extension or renewal thereof, then, in any of such events, Landlord may
elect either to terminate this Lease or to proceed to rebuild and repair the Premises. Landlord shall give
written notice to Tenant of such election within ninety(90)days after the occurrence of such casualty.
(b) Landlord's obligation to rebuild and repair the Premises under this Section shall in any event be
limited to restoring Landlord's work to substantially the condition in which the same existed prior to the
casualty, modified, to the extent necessary, to comply with current law or regulation, and Tenant agrees
that promptly after the completion of such work by Landlord, Tenant will proceed with reasonable
diligence and at Tenant's sole cost and expense to restore Tenant's work and all alterations, additions and
improvements done by Tenant within the Premises to substantially the condition in which the same
existed prior to the casualty.
(c) Tenant agrees that during any period of reconstruction or repair of the Premises, it will continue
the operation of its business within the Premises to the extent practicable. During the period from the
occurrence of a casualty until Landlord's repairs are completed, the Rent shall be reduced and abated in
proportion to the amount of Rentable Area of the Premises which is rendered untenantable as a result of
such casualty; provided, however, that if such damage or destruction is caused by the intentional or
6
negligent acts or omissions of Tenant, its assignees, sublessees, servants, agents, employees, invitees,
licensees, or concessionaires,or the servants,agents,employees,invitees,licensees, or concessionaires of
Tenant's assignees or sublessees, then, and in that event,the Minimum Rent shall not abate. Tenant shall
not be entitled to and hereby waives, releases, and relinquishes any and all claims against Landlord for
any compensation or damage for loss of use of all or any part of the Premises or for any inconvenience or
annoyance occasioned by any such damage,destruction,repair,or restoration of the Premises.
(d) Tenant agrees at all times at its expense to keep its merchandise, fixtures, Tenant's Work, all
alterations, additions and improvements done by Tenant within the Premises and Tenant's other property
situated within its Premises insured by "All Risk" insurance in an amount equal to its full replacement
value. Such insurance shall be carried with companies reasonably satisfactory to Landlord. Such
insurance shall be non-cancelable and non-amendable except after ten (10) days written notice to
Landlord. Such policies or duly executed certificates of insurance with respect thereto shall be delivered
to Landlord, together with evidence of payment of the premium therefore, prior to the Rent
Commencement-Date and renewals thereof as required shall be delivered to Landlord at least-thirty (30)
days prior to the expiration of the respective policy terms. The proceeds of such insurance shall be
payable to Landlord and Tenant,jointly, for use by Tenant only,except with the consent of Landlord, for
the repair or replacement of merchandise, fixtures,Tenant's Work, or other property which was situated
within the Premises.
(e) 1n the event that fifty percent(50%)or more of the Rentable Area of the Shopping Center shall be
destroyed or substantially damaged by any casualty,notwithstanding that the Premises may be unaffected
by such casualty, Landlord may terminate this Lease by giving the Tenant thirty (30) days prior written
notice of Landlord's election to do so, which notice shall be given, if at all, within ninety (90) days
following the date of such occurrence.Rent shall be adjusted as of the date of such termination.
11. Damage or Theft of Personal Property. All personal property brought into the Premises shall
be at the risk of the Tenant only and Landlord shall not be liable for theft thereof or any damage thereto
occasioned by any acts of co-tenants,or other occupants of the Building,or any other person,except,with
respect to damage to the Premises, as may be occasioned by the grossly negligent or willful act of the
Landlord,its employees and agents.
12. "As Ls."The Tenant has inspected the Leased Premises and agrees that the Leased Premises is in satisfactory
condition. The Tenant accepts the Leased Premises"as is."
13. Alterations and/or Improvements. No alterations,additions or improvements shall be made,and no
climate regulating, air conditioning, cooling, heating or sprinkler systems, television or radio antennas, heavy
equipment,apparatus and fixtures,shall be installed in or attached to the Leased Premises,without the written consent
of the Landlord.Unless otherwise provided herein,all such alterations,additions or improvements and systems,when
made,installed in or attached to the said premises,shall belong to and become the property of the Landlord and shall be
surrendered with the Leased Premises and as part thereof upon the expiration or sooner termination of this lease,
without hindrance,molestation or injury. If Landlord gives its written consent to any such alterations,additions or
improvements and systems,all work and improvements shall be performed by Tenant in accordance with applicable
local,state and federal laws,including obtaining permits and a certificate of occupancy for the work and improvements.
7
14. Inspection and Repair. The Tenant agrees that the Landlord and the Landlord's agents, employees or
other representatives,shall have the right to enter into and upon the said premises or any part thereof,at all reasonable
hours,for the purpose of examining the same or making such repairs or alterations therein as may be necessary for the
safety and preservation thereof. This clause shall not be deemed to be a covenant by the Landlord nor be construed to
create an obligation on the part of the Landlord to make such inspection or repairs.
15. Right to Exhibit. The Tenant agrees to permit the Landlord and the Landlord's agents, employees or
other representatives to show the Leased Premises to persons wishing to rent or purchase the same,and Tenant agrees
that on and after 90 days next preceding the expiration of the term hereof; the Landlord or the Landlord's agents,
employees or other representatives shall have the right to place notices on the front of said premises or any part
thereof,offering the Leased Premises for rent or for sale;and the Tenant hereby agrees to permit the same to remain
thereon without hindrance or molestation.Nothwithstanding the above,if no Option Terms remain, Landlord may
exhibit the premises on and after 180 days next preceeding the expiration of the Term
16. Glass,etc.Damage,Repairs. In case of the destruction of or any damage to the glass in the Leased
Premises, or the destruction of or damage of any kind whatsoever to the said premises,caused by the carelessness,
negligence or improper conduct on the part of the Tenant or the Tenant's agents,employees,guests,licensees,invitees,
subtenants,assignees or successors,the Tenant shall repair the said damage or replace or restore any destroyed parts of
the Leased Premises,as speedily as possible,at the Tenant's own cost and expense.
17. Signs. The Tenant shall not place nor allow to be placed any signs of any kind whatsoever, upon, in or
about the said premises or any part thereof;except of a design and structure and in or at such places as may be indicated
and consented to by the Landlord in writing. In case the Landlord or the Landlord's agents, employees or
representatives shall deem it necessary to remove any such signs in order to paint or make any repairs,alterations or
improvements in or upon said premises or any part thereof;they may be so removed,but shall be replaced at the
Landlord's expense when the said repairs, alterations or improvements shall have been completed. Any signs
permitted by the Landlord shall at all times conform with all mumicipal ordinances or other laws and regulations
applicable thereto. Landlord hereby approves Tenant's installation and use of a sign similar to that which Tenant is
currently utilizing at its previous location.
18. Non-LiabrTity of Landlord. The Landlord shall not be liable for any damages or injury which may be
sustained by the Tenant or any other person,as a consequence of the fail=,breakage,leakage or obstruction of the
water,plumbing,steam,sewer,waste or soil pipes,roof,drains,leaders,gutters,valleys,down-spouts or the like or of
the electrical, gas,power,conveyor,refrigeration,sprinkler,air-conditioning or heating systems, elevators or hoisting
equipment;or by reason of the elements;or resulting from the carelessness,negligence or improper conduct on the part
of any other Tenant or this or any other Tenant's agents,employees,guests,licensees,invitees,subtenants,assignees or
successors;or attributable to any-interference with,interruption of or failure,beyond the control of the Landlord,of
any services to be furnished or supplied by the Landlord
19. Mortgage Priority. (a) Tenant agrees that this Lease shall be subject and subordinate:
(i)to any mortgage, deed of trust or other security interest now encumbering the Shopping Center and to
all advances which may be hereafter made,to the full extent of all debts and charges secured thereby and
to all renewals or extensions of any part thereof, and to any mortgage, deed of trust or other security
interest which any owner of the Shopping Center may hereafter, at any time, elect to place on the
Shopping Center; (ii) to any assignment of Landlord's interest in the leases and rents from the Shopping
Center which includes the Lease which now exists or which any owner of the Shopping Center may
hereafter, at any time,elect to place on the Shopping Center; and(iii)to any Uniform Commercial Code
Financing Statement covering the personal property rights of Landlord or any owner of the Shopping
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+ a
Center which now exists or any owner of the Shopping Center may hereafter, at any time, elect to place
on the foregoing personal property (all of the foregoing instruments set forth in (i), (ii) and (iii) above
being hereafter collectively referred to as "Security Documents"). Tenant agrees upon request of the
holder of any Security Documents ("Holder") to hereafter execute any documents which the counsel for
Landlord or Holder may reasonably deem necessary to evidence the subordination of the Lease to the
Security Documents. Within ten (10) days after request therefore, if Tenant fails to execute any such
requested documents,Landlord or Holder is hereby empowered to execute such documents in the name of
Tenant evidencing such subordination,as the act and deed of Tenant,and this authority is hereby declared
to be coupled with an interest and not revocable.
(b) In the event of a foreclosure pursuant to any Security Documents,Tenant shall at the election of
the Landlord, thereafter remain bound pursuant to the terms of this Lease as if a new and identical Lease
between the purchaser at such foreclosure ("Purchaser"), as landlord, and Tenant, as tenant, had been
entered into for the remainder of the Term hereof and Tenant shall attorn to the Purchaser upon such
.foreclosure sale and shall recognize such Purchaser as the Landlord under the Lease. Such attornment
shall be effective and self-operative without the execution of any further instrument on the part of any of
the parties hereto.Tenant agrees,however,to execute and deliver at any time and from time to time,upon
the request of Landlord or of Holder,any instrument or certificate that may be necessary or appropriate in
any such foreclosure proceeding or otherwise to evidence such attornment.
(c) 1f the Holder of any Security Document or the Purchaser upon the foreclosure of any of the
Security Documents shall succeed to the interest of Landlord under the Lease, such Holder or Purchaser
shall have the same remedies, by entry, action or otherwise for the non-performance of any agreement
contained in the Lease,for the recovery of Rent or for any other default or event of default hereunder that
Landlord had or would have had if any such Holder or Purchaser had not succeeded to the interest of
Landlord. Any such Holder or Purchaser which succeeds to the interest of Landlord hereunder, shall not
be: (a) liable for any act or omission of any prior Landlord (including Landlord) unless such act or
omission is of a continuing nature; or (b) subject to any offsets or defenses which Tenant might have
against any prior Landlord(including Landlord); or(c)bound by any Rent which Tenant might have paid
for more than the current month to any prior Landlord (including Landlord); or (d) bound by any
amendment or modification of the Lease made without its consent.
(d) Notwithstanding anything to the contrary set forth in this Section, the Holder of any Security
Documents shall have the right, at any time, to elect to make this Lease superior and prior to its Security
Document.No documentation, other than written notice to Tenant, shall be required to evidence that the
Lease has been made superior and prior to such Security Documents,but Tenant hereby agrees to execute
any documents reasonably requested by Landlord or Holder to acknowledge that the Lease has been made
superior and prior to the Security Documents.
20. Security. The Tenant has this day deposited with the Landlord the sum as shown in Article 14 of the
Banc Lease Provisions as security for the payment of the rent hereunder and the full and faithful performance by the
Tenant of the covenants and conditions on the part of the Tenant to be performed Said sum shall be returned to the
Tenant, without interest, after the expiration of the term hereof, provided that the Tenant has fully and faithfully
performed all such covenants and conditions and is not in arrears in rent. During the term hereof,the Landlord may,if
the Landlord so elects, have recourse to such security, to make good any default by the Tenant,in which event the
9
Tenant shall,on demand,promptly restore said security to its original amount. Liability to repay said security to the
Tenant shall run with the reversion and title to said premises,whether any change in ownership thereof be by voluntary
alienation or as the result of judicial sale,foreclosure or other proceedings,or the exercise of a right of taking or entry
by any mortgagee.The Landlord shall assign or transfer said security,for the benefit of the Tenant,to any subsequent
owner or holder of the reversion or title to said premises, in which case the assignee shall become liable for the
repayment thereof as herein provided,and the assignor shall be deemed to be released by the Tenant from all liability to
return such security. This provision shall be applicable to every alienation or change in title and shall in no wise be
deemed to permit the Landlord to retain the security after termination of the Landlord's ownership of the reversion or
title. The Tenant shall not mortgage,encumber or assign said security without the written consent of the Landlord.
21. Increase of Insurance Rates. If for any reason it shall be impossible to obtain fire and other hazard
insurance on the buildings and improvements on the Leased Premises, at standard rates and in the form and in
insurance companies reasonably acceptable to the Landlord,the Landlord may, if the Landlord so elects at any time
thawfler,terminate this lease and the term hereof,upon giving to the Tenant sixty(60)days notice in writing of the
Landlord's intention so to-do,and upon the giving of such notice,this lease and-the term thereof shall terminate. If by
any reason of the use to which the Leased Premises are put by the Tenant or character of or the manner in which
the Tenant's business is carried on,the insurance rates for fire and other hazards shall be increased,the Tenant shall
upon demand,pay to the Landlord, as rent, the amounts by which the premiums for such insurance are increased.
Such payment shall be paid with the next installment of rent but in no case later than one month after such demand,
whichever occurs sooner.
22- Utilities.The Tenant shall pay when due all the rents or charges for water,sewer,gas and electricity used by
the Tenant;which are or may be assessed or imposed upon the Leased Premises or which are or may be charged to the
Landlord by the suppliers thereof during the term hereof,and if not paid,such rents or charges shall be added to
and become payable as additional rent with the installment of rent next due or within 30 days of demand therefor,
whichever occurs sooner,Tenant shall contract Directly with the electrical and gas supplier for these utililities.
Tenant shall arrange and pay for all utilities and services required in the Leased Premises,
including but not limited to, (a)electric,(b)heat,(c)gas,(d)water and(e)sewer services. Landlord shall
not be responsible for interruption or impairment of service or utility.
23. Condemnation & Eminent Domain. In the event the entire Premises shall be taken by
condemnation or right of eminent domain, this Lease shall terminate as of the day possession shall be
taken by the taking authority and Landlord and Tenant shall be released from any further liability
hereunder.In the event only a portion of the Premises shall be taken by condemnation or right of eminent
domain and the portion so taken renders the balance unsuitable for the purpose of this Lease, either
Landlord or Tenant shall be entitled to terminate this Lease, such termination to become effective as of
the day possession of the Premises shall be taken, provided notice of such termination is given within
thirty (30) days after the date of notice of such taking. If, in such case, this Lease is not terminated,
Landlord agrees to restore the Premises with reasonable speed to an architectural unit as nearly like its
condition prior to such taking as shall be practicable.If during and/or after the work of restoration, Tenant
shall be deprived of the use of all or any portion of the Premises, a proportionate adjustment in the Base
Rent and Additional Rent shall be made corresponding to the time during which and the portion of the
Premises of which Tenant is so deprived. All damages awarded in connection with the taking of the
Premises,whether allowed as compensation for diminution in value to the leasehold,to the reversion and
fee of the Premises, to Tenant's leasehold improvements or otherwise, shall belong"to Landlord.
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Notwithstanding the foregoing, Tenant shall be entitled to make a separate claim" to the condemning
authority for damage to merchandise and fixtures,removal and reinstallation costs,and moving expenses.
24. Abandonment of Premises_ Tenant agrees not to abandon or vacate the Premises during the
Term of this Lease. If Tenant does abandon or vacate the Premises for more than ninety (90) days,
Landlord may terminate this Lease, by written notice to Tenant at any time prior to Tenant reoccupying
the Premises,but such termination shall not entitle Landlord to pursue any other remedies unless an Event
of Default then exists,in which case Landlord may pursue any and all remedies provided by this Lease,at
law or in equity,
25. Default. If Tenant shall default in the .payment of Rent, Additional Rent, or any Sum herein
reserved when due and fails to cure such default within ten(10)days after written notice of such default is
given to Tenant by Landlord; or if Tenant shall be in default in performing any of the terms or provisions
of this Lease other than:the_provisions:requiring the payment of Rent,and fails to cure such non-monetary
default within thirty (30) days after written notice of such default is given to Tenant by,Landlord,
provided however that if such non-monetary default is of such a nature that it cannot through the exercise
of diligent and reasonable efforts be cured within thirty(30) days, then Tenant shall not be in default in
such instance if Tenant promptly commences and diligently pursues the cure of such non-monetary
default to completion as soon as possible or if Tenant is adjudicated a bankrupt; or if a permanent receiver
is appointed for Tenant's property and such receiver is not removed within sixty (60) days after
appointment thereof; or if, whether voluntarily or involuntarily, Tenant takes advantage of any debtor
relief proceedings under any present or future laws, whereby the Rent or any part thereof, is, or is
proposed to be, reduced or.payment thereof deferred; or if Tenant's effects should be levied upon or
attached and such levy or attachment is not satisfied or dissolved within thirty(30)days after such levy or
attachment;or,if Tenant is an individual,in the event of the death of the individual and the failure of the
executor,administrator or personal representative of the estate of the deceased individual to have assigned
the Lease within three(3)months after such death to an assignee approved by Landlord;then,an Event of
Default has occurred, and Landlord, at its option,may exercise any or all of the remedies set forth in this
Lease.
26. Remedies Upon Tenant's Default.If there should occur any Event of Default on the part of the Tenant in the
performance of any conditions and covenants herein contained, or should the Tenant be evicted by srunrnary
proceedings or otherwise;the Landlord,in addition to any other remedies herein contained or as may be permitted by
law,may either by force or otherwise,without being liable for prosecution therefor,or for damages,renter the said
premises and the same have and again possess and enjoy-,and as agent for the Tenant or otherwise re let the
!� Leased
Premises and receive the reacts therefor and apply the same,first to the payment of such expenses,reasonable attorney
fees and costs,as the Landlord may have been put to in re-entering and repossessing the same and in malting such
repairs and alterations as may be necessary,and second to the payment of the rents due hereunder. The Tenant shall
remain liable for such rents as may be in arrears and also the rents as may accrue subsequent to the re-entry by the
Landlord,to the extent of the difference between the rents reserved hereunder and the ants,if any,received by the
Landlord during the remainder of the unexpired term hereof after deducting the aforementioned expenses,fees and
costs;the same to be paid as such deficiencies arise and are ascertained each month
27. Termination on DefaultIf an Event of Default has occurred or if this lease or'the estate of the Tenant
hereunder shall pass to another by virtue of any court proceedings,writ of execution,levy,sale,or by operation of law,
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I
34. Title and Quiet Enjoyment. The Landlord covenants and represents that the Landlord is the owner of
the Leased Prem=herein leased and has the right and authority to enter into,execute and deliver this Ie t e;and does
further covenant that the Tenant on paying the rent and performing the conditions and covenants herein contained,shall
and may peaceably and quietly have, hold and enjoy the Leased Premises for the term aforementioned Landlord
shall not be responsible for the acts or omissions of any other tenant or third party that may interfere with
Tenant's use and enjoyment of the Premises.
35. Force Majeure. In the event of a strike, lockout, labor trouble, civil commotion, an act of God,
or any other event beyond Landlord's control (a "force majeure event") which results in the Landlord
being unable to timely perform its obligations hereunder to repair the Premises, provide services, or
complete Work (as provided inExhi_ b_ it �_'B"), so long as Landlord diligently proceeds to perform such
obligations after the end of such force majeure event, Landlord shall not be in breach hereunder, this
Lease shall not terminate,and Tenant's obligation to pay any Minimum Rent, additional rent, or any other
charges and sums due and payable shall not be excused.
36. Entire Contract.This lease contains the entire contract between the parties No representative, agent or
employee of the Landlord has been authorized to make any representations or promises with reference to the within
letting or to vary,alter or modify the teams hereof. No additions,changes or modifications,renewals or extensions
hereof;shall be binding unless reduced to writing and signed by the Landlord and the Tenant.
37. Conformity with Laws and Regulations. The Landlord may pursue the relief or
remedy SWO invalid clause,by conforming the said clause with the provisions of the statutes or therem any
agency in such case made and provided as if the particular regulations o r any governmental
forth herein at length provisions of the applicable statutes or regulations were set
38. Number and Gender. In all references herein to an
der or the plural or sin Y parties,persons,entities or corporations the
use of any particular gen
as the text of the within instrument the singular number is intended to include the appropriate gender or number
Y require. All the terms,covenants and conditions herein contained shall be for
and shall inure to the benefit of and shall bind the respective parties hereto,and their heirs,executors,administrators,
personal or legal representatives,successors and assigns.
39. Brokers. Tenant warrants that it has had no dealings with any real estate broker or agents
other than RSR Realtors, LLC, NAI-CIR and Pintzuk Brown Realty Group in connection with the
negotiation of this Lease, and it knows of no other real estate broker or agent who is entitled to a
commission in connection with this Lease. Tenant shall indemnify and defend Landlord against any costs,
claims and expenses, including reasonable attorneys' fees,arising out of Tenant's breach of any representa-
tion or agreement contained in this paragraph.
40. Additional Rent. Tenant agrees to pay as further additional rent, as hereinafter provided,
Tenant's Share of expenses incurred by Landlord at its discretion for the operation, management and
maintenance of the Common Areas of the Shopping Center as constituted from time to time (hereinafter
called the"Common Area Expenses"). Tenant's share of Commona Area Expenses,Taxes and Insurance
for the first year shall be the amount set forth in Article 12 of the Basic Lease Provisions.As used herein,
the term "Common Areas" shall mean those areas of the Shopping Center, including all parking areas,
including driveways, truckways, delivery passages, walkways, concourses, malls, planted arwhich are from time to time open for joint use by the tenants of Shopping Center or by the public,
eas,
13
landscaped areas, and public restrooms and common truck loading and receiving areas which are not
leased to or reserved for individual tenants. Common Area Expenses shall include without limitation
management fees paid to a third party management company,expenses reimbursable to such management
company, costs incurred for lighting, heating, air conditioning, painting, cleaning, removal of trash,
garbage, debris and other refuse, central trash disposal (if Landlord elects to provide same), traffic
control, fire protection, sewer, or septic system, compliance with governmental and other regulatory
authority applicable to the Shopping Center,policing,inspecting, landscaping and repairing and replacing
the Common Areas, or any part thereof, Landlord's share of costs incurred in the maintenance and repair
of any offsite retention/detention facilities serving the Shopping Center and any offsite accessways
burdened by an easement benefiting the Shopping Center, depreciation of maintenance equipment, costs
of all insurance, including any hazard, public liability and property damage insurance, and business
interruption or rent insurance, as Landlord shall reasonably deem appropriate with respect to the
Shopping Center, including appraisals and consultants' fees and premiums in connection with such
insurance and deductible amounts paid in connection with any insurance claim, costs of all water
consumed in the Shopping-Center which is not separately metered to tenants-or payable by other tenants
(single or multiple), but excluding depreciation of Landlord's original investment in the Shopping Center.
All capital expenditures included in operating costs (including,but not limited to, the replacement of the
roof and resurfacing the parking areas) shall be treated as if said expenditures have been capitalized over
their useful life per the federal tax code, and Tenant's Share shall in no event include the cost of initial
construction or expansion of the Shopping Center and the common areas. Tenant's Share to be paid by
Tenant with respect to Common Area Expenses shall be that percentage of the cost of operation and
maintenance of the Common Areas which the Rentable Area of the Premises bears to the Rentable Area
of the Shopping Center, unless the Shopping Center or any facility serving the Shopping
operated, managed or maintained in common with other propertyona Center is
propert3% ch
event Tenant's Share may be that percentage of a common coshich theeRentable Area of the Premises
in whi
bears to the Rentable Area of the property under common operation,management,maintenance or served
by the facility. Landlord may at its option make monthly or other periodic charges based upon the
estimated annual cost of operation and maintenance of the Common Areas, payable in advance but
subject to adjustment after the end of each calendar year on the basis of the actual costs for such year.
Within ninety (90) days after the close of each calendar year, Landlord will furnish to Tenant a detailed
statement of the expenses relating to the Common Areas for such year, such statement to be prepared in
accordance with generally accepted accounting practices and to include Tenant's proportionate share of
the expenses relating to the Common Areas computed as herein provided.
Tenant further agrees to pay as additional rent, Tenant's Share of the general real estate taxes,
Real Estate tax consultant fees, assessments, and governmental charges levied against Shopping Center
for each calendar year beginning with the Rent Commencement Date and during the Lease Term and any
renewals or extensions thereof,together with Tenant's Share of the reasonable cost of any contest of such
taxes, assessments and charges or the assessed valuation of the Shopping Center that Landlord may
pursue in its reasonable discretion, including fees and disbursements of attorneys, Real Estate tax
consultants, arbitrators, appraisers, experts and other witnesses (hereinafter called the "Taxes"). The
Taxes shall be appropriately prorated during the first and last years of the Lease Term if such years are
less than full calendar years. "Tenant's Share" shall be that percentage which the Rentable Area of the
Premises bears to the Rentable Area of the Shopping Center. Landlord may at its option make monthly or
other periodic charges based upon the estimated annual taxes, payable in advance but subject to
14
adjustment after receipt of the tax statement by Landlord. Tenant agrees to pay as additional rent any rent
tax or other tax imposed upon rent payments or imposed upon Landlord based upon rent payments b
Tenant to Landlord, however Tenant shall not be required to pay any income tax of Landlord.
Notwithstanding the foregoing, Landlord agrees that the calculation of the amount of real estate taxes
hereunder shall include only those levied or charged on parcel #10-23-0561-053 (5211 Simpson Ferry
Road -- 4.05 acres), and shall not include those levied or charged for parcel # 10-23-0561-062 (5201
Simpson Ferry Road—0.56 acres).
In the event that a merchants association is formed for the Shopping Center, Tenant agrees that it
will join and maintain membership in such association. The objectives of such association shall be to
advance the civic, social,commercial and economic welfare of its members and the general interest of the
Shopping Center and its trade area. Tenant will pay such reasonable dues and assessments as may be
fixed and determined from time to time by such association. Tenant shall also comply with such other
by-laws, rules, and regulations as may be adopted from time to time by such association, and shall take
such actions as may be necessary to remain in good standing in such association:and:shall cooperate-in all
of the activities of such association.
41. Insurance. (a) Tenant shall keep in force throughout the Term: (a) a Commercial General
Liability insurance policy or policies to protect Landlord against any liability to the public or to any
invitee of Tenant incidental to the use of or resulting from any accident occurring in or upon the Leased
Premises with a limit of not less than$1,000,000.00 per occurrence and not less than$2,000,000.00 in the
annual aggregate, or such larger amount as Landlord may prudently require from time to time, covering
bodily injury and property damage liability and$1,000,000.00 products/completed operations a
(b) Deleted (c) If applicable, insurance protecting against liability under Worker's Compensation Laws
with limits at Ieast as required by statute; (d) Deleted (e) All Risk or Special Form coverage protecting
Tenant against loss of or damage to Tenant's alterations, additions, improvements, carpeting, floor
coverings, panelings, decorations, fixtures, inventory and other business personal property situated in or
about the Leased Premises to the full replacement value of the property so insured;and, (f)Deleted
(b) Each of the aforesaid policies shall (i) be provided at Tenants expense; it name the Landlord
and Landlord's mortgagee as additional insureds; (iii) be issued by an insurance company with a
minimum Best's rating of"A+'; (iv) be with companies authorized to do business in the state where the
Property is located and(v)provide that said insurance shall not be cancelled unless thirty(30)days prior
written notice(ten days for non-payment of premium)shall have been given to Landlord, and said policy
or policies or certificates thereof, together with proof of payment, shall be delivered to Landlord by
Tenant not less.than fifteen (15) days prior to the commencement of the term hereof or the date when
Tenant shall enter into possession, whichever is sooner and at least thirty(30) days prior to each renewal
of said insurance.
(c) So long as their respective insurers so permit, Tenant and Landlord hereby mutually waive their
respective rights of recovery against each other for any loss insured by fire, extended coverage,All Risks
or other insurance now or hereafter existing for the benefit of the respective party but only to the extent of
the net insurance proceeds payable under such policies. Each party shall obtain any special endorsements
required by their insurer to evidence compliance with the aforementioned waiver.
15
42. Indemnification. Landlord shall not be liable and Tenant hereby waives all claims against
Landlord for any damage to any property or any injury to any person in or about the Leased Premises or
the Shopping Center by or from any cause whatsoever,except to the extent caused by or arising from the
gross negligence or willful misconduct of Landlord or its agents, employees or contractors. Tenant shall
protect, indemnify and hold the Landlord entities harmless from and against any and all loss, claims,
liability or costs (including court costs and attorney's fees) from
by reason of(a)any damage to any
property or any injury to any person occurring in, on or about the Leased Premises or the Shopping
Center to the extent that such injury or damage shall be caused by or arise from any actual or alleged act,
neglect, fault, or omission by or of Tenant, its agents, servants, employees, invitees, or visitors to meet
any standards imposed by any duty with respect to the injury or damage; (b)the conduct or management
of any work or thing whatsoever done by the Tenant in or about the Leased Premises or from transactions
of the Tenant concerning the Leased Premises; (c) Tenant's failure to comply with any and all
governmental laws, ordinances and regulations applicable to the condition or use of the Leased Premises
or its occupancy; (d) any breach or default on the part of Tenant in the performance of any covenant or
agreement on the part of the Tenant to be performed pursuant to this Lease; m nc or for any cause.or
reason whatsoever arising out of or by reason of the occupancy or business ei Tenant. The provisions of
this Article shall survive the termination of this Lease with respect to any claim or liability accruing prior
to such termination.
43. Construction and Acceptance of Premises. (a) Landlord agrees that Landlord will complete
Landlord's Work as defined in Exhibit"B",with such minor variations as Landlord may deem advisable.
Tenant acknowledges that neither Landlord nor any of Landlord's agents, employees, representatives,
legal representatives or brokers has made any representations or warranties whatsoever as to the
suitability of the Premises for the conduct of Tenant's business or for any other purpose, and that neither
Landlord nor any of Landlord's agents,employees,representatives,legal representatives or brokers agreed
to undertake or cause to be undertaken any alterations or to construct any improvements to the Premises
or the Shopping Center except as expressly provided in this Lease.If Landlord shall for any reason fail to
complete that part of Landlord's Work which is required in the Premises prior to Landlord's Work
Scheduled Completion Date, Landlord shall not be deemed to be in default hereunder or otherwise liable
in damages to Tenant nor shall the Term or any provision of this Lease be affected.
(b) Tenant has submitted to Landlord plans and specifications covering Tenant's Work as
specified in Exhibit"B",and any other work which Tenant proposes to do in the Premises.Such plans and
specifications shall comply with all requirements set forth in Exhibit "B". Landlord has approved the
plans and specifications therefor.
(c) Upon the Date for Delivery of Possession,Tenant agrees to accept possession thereof and
to proceed with due diligence to perform the work described in such plans and specifications which have
been approved by Landlord, and to install its fixtures,furniture,and equipment in the Premises.Any work
Tenant does in the Premises causing venting, opening, sealing, waterproofing or any altering of the roof
shall be performed by Landlord's roofing contractor at Tenant's expense. By occupying the Premises,
Tenant shall be deemed to have acknowledged that the Landlord has complied with all of its covenants
and obligations with respect to the construction of the Premises, except for defects in Landlord's Work
which are latent at the time the Premises are occupied, which shall in any event be deemed waived by
Tenant upon the expiration of one (1) year after the date the Premises are occupied by Tenant. In the
event of any dispute concerning work performed or required to be performed in the Premises by Landlord
16
or Tenant, the matter in dispute shall be submitted to Landlord's architect for determination and his
certificate with respect thereto shall be binding on Landlord and Tenant.
(d) Unless delayed in accordance with the provisions of Section 3(a)above, Tenant agrees to
open the Premises to the public for business fully fixtured, stocked and staffed for the Permitted Use
described in Article 15 of the Basic Lease Provisions no later than sixty(60) days after (i) the Date for
Delivery of Possession or(ii)the actual date possession is given under Paragraph 46 herein.
44. Mechanic's Liens. If any mechanic's, construction or other liens shall.be created or filed
against the Leased Premises by reason of labor performed or materials furnished for Tenant in the
erection, construction, completion, alteration, repair or addition to any building or improvement, Tenant
shall upon demand, at Tenant's own cost and expense, cause such lien ding
to be satisfied and
discharged of record together with any lien claims that may have been filed. or Failure to do so shall entitle
Landlord to resort to such remedies as are provided herein in the case of any default of this Lease, in
addition to such as are permitted by law.
45. Remedies. In case of any Event of Default, re-entry, expiration and/or dispossession by
summary proceedings or otherwise, (a) all rent and additional rent shall be accelerated and shall become
due thereupon and be paid up to the time of such re-entry, dispossession and/or expiration; and/or (b)
Landlord may re-let the Leased Premises or any part or parts thereof, either in the name of Landlord or
otherwise, for a tern or terms, which may at Landlord's option be less than or exceed the period which
would otherwise have constituted the balance of the term of this Lease and may grant concessions or free
rent or charge a higher rental than that in this Lease, in which case Tenant or the legal representatives of
Tenant shall be responsible for any deficiency between the rent hereby reserved and/or covenanted to be
paid and the net amount, if any, of the rents collected on account of the subsequent lease or leases of the
Leased Premises for each month of the period which would otherwise have constituted the balance of the
term of this Lease, payable in monthly installments by Tenant on the rent day specified in this Lease.
Landlord shall use commercially reasonable efforts to re-let the Premises hereunder. In computing such
damages there shall be added to the said deficiency such expenses as Landlord may incur in connection
with re-letting, such as legal expenses,reasonable attorneys' fees,brokerage, advertising and for keeping
the Leased Premises in good order or for preparing the same for re-letting. Landlord, in putting the
Leased Premises in good order or preparing the same for re-rental may, at Landlord's option, make such
alterations, repairs, replacements, and/or decorations in the Leased Premises as Landlord, in Landlord's
sole judgment, considers advisable and necessary for the.purpose of re-letting the Leased Premises, and
the making of such alterations,repairs,replacements,and/or decorations shall not operate or be construed
to release Tenant from liability. In no event shall Tenant be entitled to receive any excess, if any, of such
net rent collected over the sums payable by Tenant to Landlord hereunder.
46. Delay in Giving Possession. DELETED
47. Attorney Fees. In the event that Landlord must retain an attorney to collect rent, enforce any
provision of this Lease, defend any action brought by or on behalf of Tenant, or regain possession of the
Leased Premises, Tenant shall be liable to Landlord for all reasonable costs and attorney fees associated
therewith. In case Landlord shall, without fault on its part,be made a party to any litigation commenced
by or against Tenant, then Tenant shall pay all costs, expenses and reasonable attorneys' fees incurred or
paid by Landlord in connection with such litigation. In the event of any action, suit or proceeding brought
17
by Landlord to enforce any of the covenants and agreements in this Lease,the Landlord shall be entitled to
recover from the Tenant of any costs, expenses and reasonable attorneys'fees incurred in connection with
such action,suit or proceeding.
48. Waiver. Landlord's failure to enforce any provision in this Lease shall not prevent
Landlord from enforcing any provision at a later time.
49. Rules and Regulations.Tenant shall comply with, and cause its employees, agents and invitees
to comply with all Rules and Regulations set forth in Exhibit E attached hereto and all reasonable rules
and regulations adopted by Landlord in connection with the use of the Leased Premises and the common
areas of the property thereafter.
50. Hours of Operation/Tenant Retail Operating Covenants. (a) Tenant shall not, nor shall
Tenant at any time permit any occupant of the Premises to: (i)conduct or permit any fire, bankruptcy or
auction sale(whether real or fictitious)unless directed by order of a court of bankruptcy or of competent
jurisdiction, or conduct or permit any fictitious "Going Out of Business" sale; (ii) use, or permit to be
used,the malls or sidewalks adjacent to such Premises, or any other area outside the Premises for the sale
or display of any merchandise or for any other business, occupation or undertaking, or for outdoor public
meetings, circus or other entertainment (except for promotional activities in cooperation with the
management of the Shopping Center or an association of merchants within the Shopping Center); (iii)use
or permit to be used, any sound broadcasting or amplifying device which can be heard outside of the
Premises; (iv) use or permit to be used any portion of the Premises for any unlawful purpose or use or
permit the use of any portion of the Premises as regular living quarters sleeping
ng
rooms or for the conduct of any manufacturing business; (v) use the Pre misesfr apartments onductlthegrein
activities, the purpose for which is not included within the purpose for which the Premises may be used
according to Article 15 of the Basic Provisions of this Lease; or(vi)use,operate or maintain the Premises
in such manner that any of the rates for any insurance carried by Landlord, or the occupant of any
premises within the Shopping Center, shall thereby be increased, unless Tenant shall pay to Landlord or
such occupant within the Shopping Center, as the case may be, an amount equal to any such increase in
rates, such payment to be made promptly on demand as each premium which shall include such increase
shall become due and payable.
(b) Tenant: (i) will not represent or advertise that it regularly or customarily sells
merchandise at "manufacturers", "distributor's", or "wholesale", "warehouse", "fire sale", "bankruptcy
sale", or similar prices or other than at retail rices (ii) will keep all mechanical apparatus free of
vibration or noise which may be transmitted beyond the confines of the Premises; (iii) will not cause or
permit odors to emanate from the Premises; (iv) will not load or unload or permit the loading or
unloading of merchandise,supplies or other property except within the area designated by Landlord from
time to time; and (v) will not permit the parldng or standing, outside of such designated area, of trucks,
trailers or other vehicles or equipment engaged in such loading or unloading.
(c) Tenant: (i)will keep clean the inside and outside of all glass in the doors and windows of
the Premises; (ii)will replace promptly at its own expense with glass of like kind and quality any plate or
window glass;(iii)will replace doors or door hardware of the Premises which may for any reason become
cracked or broken; (iv) will maintain the Premises in a clean, orderly and sanitary condition and free of
insects, rodents, vermin, and other,pests; (v) will not permit undue accumulation of garbage, trash,
18
c
rubbish or other refuse in the Premises; and (vi) will keep such refuse in proper containers inside the
Premises until such time as same is called for to be removed. Tenant will maintain plate glass insurance
reasonably satisfactory to Landlord if any plate glass is contained in the store front of the Premises.
(d) Due to the nature of Tenant's business, Tenant's hours of operation will vary depending
upon class enrollment and private appointment scheduling. Tenant will endeavor to be open to the public
at least three(3)evenings per week. Tenant shall post such schedule,as it may change from time to time,
where it is visible to window-shoppers and shall not allow the Premises to appear to have been vacated or
abandoned.
(e) Deleted.
51. Nondisclosure of Lease Terms. Tenant acknowledges and agrees that with the exception
of attorneys, accountants, insurance agents, business advisors and potential partners or purchasers of its
business, it will maintain the confidentiality of the essential business terns of this Lease, and in
particular,the financial terms. In no event will Tenant disclose such terns to other tenants or prospective
tenants of the center.
52. Waiver of Jury Trial. Landlord and Tenant hereby mutually waive trial by jury in any
proceeding concerning this Lease or arising therefrom.
53. Full Execution.This Lease shall not be binding on either party until it is executed by all parties
and delivered to all parties.
54. Parking. Landlord represents and warrants unto Tenant that Tenant and Tenant's invitees,
guests,and employees shall at,all times during the term of the Lease have access for ingress and egress to
and from the Premises,and shall have the right to park automobiles in all parking areas on the property at
no charge, and that Landlord shall maintain adequate lighted, drained and signed parking for the Leased
Premises at all times during the term of this Lease, and such parking areas shall comply with all
applicable laws, regulations, and ordinances. If, at any time during the term of the Lease, access for
ingress or egress to and from the Premises is lost or materially interfered with, or the parking areas are
lost by condemnation, or are otherwise materially obstructed, thereby limiting Tenant's use thereof,
Landlord agrees to work with Tenant in good faith to relocate such access; provided, however,
relocation cannot be accomplished to the sole, yet reasonable satisfaction of Tenant wiif such
thin thirty (30)
days,Tenant shall have the right to terminate this Lease.
55. Tenant Estoppel Certificate.Tenant agrees to at any time and from time to time,within ten(10)
days after Landlord's written request, execute, acknowledge and deliver to Landlord a written instrument
certifying the Commencement Date, that Tenant has accepted possession of the Leased Premises and is
open for business, that this Lease is unmodified and in full force and effect (or if there have been
modifications, that it is in full force and effect as modified and stating the modifications), the dates to
which Base Rent, Additional Rent and other charges have been paid in advance, if any, and stating
whether or not to the best knowledge of the signer of such certificate, Landlord is in default in the
performance of any covenant, agreement or condition contained in this Lease and, if so, specifying in
19
detail each such default of which the signer may or should have knowledge; and certifying such other
matters as may be reasonably requested by Landlord.
56. Right to Relocate. As a material inducement for Landlord to enter into this Lease with Tenant,
Landlord shall, throughout the Term of this Lease and any renewals thereof,have the right at Landlord's
expense to relocate Tenant to other premises (the "New Premises") within the property to space finished
in a similar manner to the previously Leased Premises as it exists at the time of the relocation.. In the
event Landlord elects to exercise the right of relocation, Landlord shall deliver written notice
("Landlord's Notice") to Tenant identifying the location of the New Premises and the date on which the
Tenant shall be moved to the New Premises, which date shall not be less than 30 days from Tenant's
receipt of Landlord's Notice. The square footage and frontage of the New Premises shall not be any
larger nor more than fifteen percent (15%) smaller than the Leased Premises. In the event that the New
Premises do not consist of the identical number of square feet as the Leased Premises, the parties shall
execute an instrument specifying the new number of square feet in the New Premises, and the new
number of square feet shall be deemed-effective as of the date on which the New Premises is delivered to
Tenant. All rent shall be adjusted accordingly.
57. Cleaning Premises. Upon vacating the Premises, Tenant agrees to return the Premises to
Landlord broom clean and in the same condition when Tenant's possession commenced,natural wear and
tear excepted, regardless of whether any Security Deposit has been forfeited. Notwithstanding the
forgoing,Tenant shall not be obligated to remove or rebuild the walls altered or added pursuant to Exhibit
B.
58. Removal of Fixtures. If Tenant is not in default hereunder, Tenant may, prior to the expiration
of the Term of this Lease,or any extension thereof,remove any fixtures and equipment which Tenant has
placed in the Premises which can be removed without significant damage to the Premises, provided
Tenant promptly repairs all damages to the Premises caused by such removal. However, if Tenant shall
be found in Monetary default of this Lease more than two times during the Term herein, the Fixtures
present at the time of the execution of this Lease shall be deemed to be the property of Landlord.
59. Holding Over. If Tenant shall be in possession of the Leased Premises after the termination date
of the Lease or any validly exercised Option Term, and in the absence of any agreement extending the
Term hereof or,after an Event of Default,upon Landlord's demand to Tenant to sooner vacate the Leased
Premises, the tenancy under this Lease shall become one from month to month terminable by either party
on thirty(30) days prior written notice, at a monthly rental equal to one and one-half times the sum of(i)
the monthly installment of Base Rent payable during the last month of the Term and (ii) the monthly
installment of Additional Rent payable during the last month of the Term. Tenant shall also pay all other
charges payable under the terms of the Lease, prorated for the period during which Tenant remains in
possession. Such tenancy shall also be subject to all other conditions,provisions, and obligations of this
Lease. Tenant shall not interpose any counterclaim or counterclaims in a summary proceeding or other
action based on holdover. The provisions of this Section shall be in addition to any liability Tenant may
have to Landlord in respect of its holdover.
60. Demolition. As a material inducement for Landlord to enter into this Lease with Tenant and to
afford Landlord the opportunity to redevelop the Shopping Center in order to maximize its economic
potential throughout the Term of this Lease, should Landlord decide to demolish no less than fifty (50)
20
percent of the total gross square footage of all buildings in the Shopping Center, exclusive of space
occupied by Anchor Tenants (which term for the purposes if this Paragraph shall mean any tenant(s) in
the Shopping Center leasing 15,000 or greater gross square feet), Landlord shall have the absolute right
after the second year of this Lease to terminate this Lease upon the giving of six(6)months prior written
notice ("Demolition Notice") to Tenant. Should Landlord give the Demolition Notice, the Term of this
Lease shall expire and terminate on the date set forth in said Notice as if said date were the expiration date
of the Term of this Lease originally provided for in this Lease.
61. Liability Of Landlord If Landlord is found to have failed to perform any covenant, term or
condition of this Lease, and if Tenant shall recover a money judgment against Landlord for such failure,
the judgment shall be satisfied only out of the proceeds of sale received upon execution of the judgment
and levy against the right, title and interest of Landlord in the Shopping Center as the same may then be
encumbered, and neither Landlord nor any of its partners shall be liable for any deficiency. It is
understood that in no event shall Tenant have the right to levy execution against any property of Landlord
other than its interest in the Shopping Center.The right of execution shall be subordinate and subject to
any mortgage or other encumbrance upon the Shopping Center.No trustee, shareholder, officer,member,
director, employee,parent or subsidiary company, Landlord affiliate or partner of Landlord shall in any
event or at any time be personally liable for the payment of performance of any obligation required or
permitted of Landlord under this Lease or under any document executed in connection herewith. No
attachment, execution,writ or other process shall be sought or obtained, and no judicial proceeding shall
be initiated by or on behalf of Tenant, against Landlord personally or Landlord's assets (other than
Landlord's interest in the Shopping Center) as a result of any such failure, breach or default under this
Lease,and neither they,nor Landlord nor any Landlord affiliate,shall be liable for any deficiency.
62. Hazardous Materials/Indemnification. (a) Tenant shall not cause or permit the receipt,
storage, use, location or handling in the Shopping Center (including the Premises) of any product,
material or merchandise which is explosive, highly inflammable, or a "hazardous or toxic material," as
that term is hereafter defined. "Hazardous or toxic material" shall include all materials or substances
which have been determined to be hazardous to health or the environment and are regulated or subject to
all applicable laws,rules and regulations from time to time,including,without limitation hazardous waste
(as defined in the Resource Conservation and Recovery Act); hazardous substances (as defined in the
Comprehensive Emergency Response, Compensation and Liability Act, as amended by the Superfund
Amendments and Reauthorization Act); gasoline or any other petroleum product or by-product or other
hydrocarbon derivative; toxic substances, (as defined by the Toxic Substances Control Act); insecticides,
fungicides or rodenticide, (as defined in the Federal Insecticide, Fungicide, and Rodenticide Act);
asbestos and radon and substances determined to be hazardous under the Occupational Safety and Health
Act or regulations promulgated thereunder.Notwithstanding the foregoing,Tenant shall not be in breach
of this provision as a result of the presence in the Premises of minor amounts of hazardous or toxic
materials which are in compliance with all applicable laws, ordinances and regulations and are
customarily present in a general retail use(e.g.,computer chemicals,and janitorial supplies).
(b) Without limiting in any way Tenant's obligations under any other provision of this Lease,Tenant
and its successors and assigns shall indemnify, protect, defend(with counsel approved by Landlord) and
hold Landlord, its partners, officers, directors, shareholders, employees, agents, lenders, contractors and
each of their respective successors and assigns (the "Indemnified Parties") harmless from any and all
claims, damages, liabilities, losses, costs and expenses of any nature whatsoever, known or unknown,
21
contingent or otherwise (including, without limitation, attorneys' fees, litigation, arbitration and
administrative proceedings costs, expert and consultant fees and laboratory costs, as well as damages
arising out of the diminution in the value of the Premises or any portion thereof, damages for the loss of
the Premises, damages arising from any adverse impact on the marketing of space in the Premises and
sums paid in settlement of claims), which arise during or after the Term in whole or in part as a result of
the presence or suspected presence of any hazardous or toxic materials, in, on, under, from or about the
Premises due to Tenant's acts or omissions, on or about the Premises, unless such claims, damages,
liabilities,losses, costs and expenses arise out of or are caused by the negligence or willful misconduct of
any of the Indemnified Parties. Landlord and its successors and assigns shall indemnify and hold Tenant
and its successors and assigns harmless against all such claims or damages if arising out of or caused by
the negligence or willful misconduct of Landlord, its agents or employees. The indemnities contained
herein shall survive the expiration or earlier termination of this Lease.
63. Authority. If Tenant executes this Lease as a corporation, limited partnership, limited liability
company-or-:any.other type of entity, each of the persons executing this Lease on behalf of Tenant does
hereby personally represent and warrant that Tenant is a duly organized and validly existing corporation,
limited partnership, limited liability company or other type of entity, that Tenant is qualified to do
business in the state where the Building is located,that Tenant has full right,power and authority to enter
into this Lease, and that each person signing on behalf of Tenant is authorized to do so. In the event any
such representation and warranty is false,all persons who execute this Lease shall be individually,jointly
and severally, liable as Tenant. Upon Landlord's request, Tenant shall provide Landlord with evidence
reasonably satisfactory to Landlord confirming the foregoing representations and warranties.
64. Miscellaneous.No agreement to accept a surrender of the Leased Premises shall be valid unless
in writing signed by Landlord. The delivery of keys to any employee of Landlord or of Landlord's agents
shall not operate as a termination of this Lease or a surrender of the Leased Premises. The failure of
Landlord to seek redress for violation of, or to insist upon the strict performance of, any covenant or
condition of this Lease,or of any rule or regulation,shall not prevent a subsequent act,which would have
originally constituted a violation,from having all the force and effect of an original violation. The receipt
by Landlord of rent with knowledge of the breach of any covenant of this Lease shall not be deemed a
waiver of such breach. No provision of this Lease shall be deemed to have been waived by Landlord,
unless such waiver be in writing and signed by Landlord. No payment by Tenant or receipt by Landlord
of a lesser amount than the rent herein stipulated shall be deemed to be other than on account of the
earliest stipulated rent,nor shall any endorsement or statement on any check nor any letter accompanying
any check or payment as rent be deemed an accord and satisfaction,and Landlord may accept such check
or payment without prejudice to Landlord's right to recover the balance of such rent or pursue any other
remedy provided in this Lease. This Lease contains the entire agreement between the parties, and any
agreement hereafter made shall be ineffective to change,modify or discharge it in whole or in part,unless
such agreement is in writing and signed by the party against whom enforcement of the change,
modification or discharge is sought.
65. Governing Law The laws of the State in which the Leased Premises is located shall
govern the interpretation, validity,performance and enforcement of this Lease. If any provision of this
Lease should be held to be invalid or unenforceable, the validity and enforceability of the remaining
provisions of this Lease shall not be affected hereby.
22
66. Sale. In the event the original Landlord hereunder, or any successor owner of the Shopping
Center, shall sell or convey the Shopping Center, all liabilities and obligations on the part of the original
Landlord,or such successor owner,under this Lease accruing thereafter shall terminate,and thereupon all
such liabilities and obligations shall be binding upon the new owner.Tenant agrees to attom to such new
owner.
67. Limitation of Liability. Landlord's obligations and liability with respect to this Lease shall be
limited solely to Landlord's interest in the Shopping Center, as such interest is constituted from time to
time,and neither Landlord nor any partner of Landlord, or any officer,director, shareholder,or partner or
member of any partner or member of Landlord,shall have any individual or personal liability whatsoever
with respect to this Lease.
68. CONFESSION OF JUDGMENT (A)ANY PROTHONOTARY OR ATTORNEY OF ANY
COURT OF RECORD IS HEREBY IRREVOCABLY AUTHORIZED AND EMPOWERED TO
APPEAR FOR TENANT IN ANY ACTION TO CONFESS JUDGMENT AGAINST TENANT,
AND MAY SIGN FOR TENANT AN AGREEMENT, FOR WHICH THIS LEASE SHALL BE
HIS SUFFICIENT WARRANT,FOR ENTERING IN ANY COMPETENT COURT AN ACTION
OR ACTIONS'IN EJECTMENT,AND IN ANY SUITS OR IN SAID ACTIONS TO CONFESS
JUDGMENT AGAINST TENANT AS WELL AS ALL PERSONS CLAIMING BY, THROUGH
OR UNDER TENANT FOR THE RECOVERY BY LANDLORD OF POSSESSION OF THE
PREMISES. SUCH AUTHORITY SHALL NOT BE EXHAUSTED BY ANY ONE OR MORE
EXERCISES THEREOF,BUT JUDGMENT MAY BE CONFESSED FROM TIlVIE TO TIME AS
OFTEN AS ANY EVENT SET FORTH IN THIS LEASE SHALL HAVE OCCURRED OR BE
CONTINUING. SUCH POWERS MAY BE EXERCISED DURING AS WELL AS AFTER THE
EXPIRATION OR TERMINATION OF THE ORIGINAL TERM AND DURING AND AT ANY
TIME AFTER ANY EXTENSION OR RENEWAL OF THE TERM,AND/OR
(B) IF TENANT SHALL DEFAULT IN THE PAYMENT OF RENT RESERVED OR
PAYABLE HEREUNDER OR IN THE PAYMENT OF ANY OTHER SUMS DUE HEREUNDER
BY TENANT, TENANT HEREBY AUTHORIZES AND EMPOWERS ANY PROTHONOTARY
OR ATTORNEY OF ANY COURT OF RECORD TO APPEAR FOR TENANT IN ANY AND
ALL ACTIONS WffiCH MAY BE BROUGHT FOR SAID RENT AND SAID OTHER SUMS;
AND TO SIGN FOR TENANT AN AGREEMENT FOR ENTERING IN ANY COMPETENT
COURT AN ACTION OR ACTIONS FOR THE RECOVERY OF SAID RENT AND OTHER
SUMS, AND IN SAID SUITS OR IN SAID ACTION OR ACTIONS TO CONFESS JUDGMENT
AGAINST TENANT FOR ALL OR ANY PART OF SAID RENT AND SAID OTHER SUMS,
INCLUDING, BUT NOT LIMITED TO, THE AMOUNTS DUE FROM TENANT TO
LANDLORD UNDER EACH OF THE SUBSECTIONS OF THIS SECTION AND FOR
INTEREST AND COSTS, TOGETHER WITH A REASONABLE ATTORNEY'S COMMISSION
FOR COLLECTION OF NOT LESS THAN TWO THOUSAND DOLLARS ($2,000). SUCH
AUTHORITY SHALL NOT BE EXHAUSTED BY ONE EXERCISE THEREOF, BUT
JUDGMENT MAY BE CONFESSED AS AFORESAID FROM TIME TO TIME AS OFTEN AS
ANY OF SAID RENT AND OTHER SUMS SHALL FALL DUE OR BE IN ARREARS AND
SUCH POWERS MAY BE EXERCISED AS WELL AFTER THE EXPIRATION OF THE TERM
OF THIS LEASE,
23
THIS LEASE PROVIDES FOR THE CONFESSION OF JUDGMENT AGAINST TENANT FOR
MONEY AND FOR EJECTMENT. IN CONNECTION THEREWITH, TENANT,
KNOWINGLY, VOLUNTARILY, INTENTIONALLY AND UPON ADVICE OF SEPARATE
COUNSEL, UNCONDITIONALLY WAIVES ANY AND ALL RIGHTS IT MAY HAVE TO
PRIOR NOTICE AND AN OPPORTUNITY FOR HEARING UNDER THE RESPECTIVE
CONSTITUTIONS AND LAWS OF THE UNITED STATES AND THE COMMONWEALTH OF
PENNSYLVANIA. WITHOUT LDHTATION OF THE FOREGOING, TENANT HEREBY
SPECIFICALLY WAIVES ALL RIGHTS TENANT HAS OR MAY HAVE TO NOTICE AND
OPPORTUNITY FOR A HEARING PRIOR TO EXECUTION UPON ANY JUDGMENT
CONFESSED AGAINST TENANT BY LANDLORD HEREUNDER. LANDLORD SHALL BE
REQUIRED TO GIVE TENANT A TEN DAY NOTICE PERIOD AND AN OPPURTUNITY TO
CURE ANY DEFAULT BEFORE EXERCISING ITS RIGHTS UNDER THIS SECTION.
TENANT (1) CERTIFIES THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF
LANDLORD HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT LANDLORD
WILL NOT SEEK TO EXERCISE OR ENFORCE ITS RIGHTS TO CONFESS JUDGMENT
HEREUNDER, AND (II) ACKNOWLEDGES THAT THE EXECUTION OF THIS LEASE BY
LANDLORD HAS BEEN MATERIALLY INDUCED BY, AMONG OTHER THINGS, THE
INCLUSION IN THIS LEASE OF SAID RIGHTS TO CONFESS JUDGMENT AGAINST
TENANT. TENANT FURTHER ACKNOWLEDGES THAT IT HAS HAD THE OPPORTUNITY
TO DISCUSS SAID PROVISIONS WITH TENANT'S INDEPENDENT LEGAL COUNSEL AND
THAT THE MEANING AND EFFECT OF SUCH PROVISIONS HAVE BEEN FULLY
EXPLAINED TO TENANT BY SUCH COUNSEL, AND AS EVIDENCE OF SUCH FACT AN
AUTHORIZED OFFICER OF TENANT SIGNS HIS OR HER INITIALS IN THE SPACE
PROVIDED BELOW. lc�
(Initials)
69. Tenant's Gross Sales/Sales Reports and Records. Deleted
70. Percentage Rent. Intentionally Left Blank
71. Exercise of Option(s) to Extend. Tenant shall have two (2) Options to Extend the Lease for a
term of three (3) years each. Tenant may exercise its Option(s)to extend the Lease by providing written
Notice to Landlord of its intention to do so at least ninety (90) days prior to the end of the then-current
term of the Lease. Landlord shall, within twenty (20) days thereafter, notify Tenant in writing of the
applicable Base Rent for each year of the Extension,as well as its good-faith calculation of the Additional
Rent (Common Area Expenses, Taxes and Insurance) which will be applicable to the first year of such
Option term (the "Extension Term Rent Notice"). In the event that Landlord does not provide an
Extension Term Rent Notice during the twenty (20) day period, the Base Rent and Additional Rent
chargeable during each year of such Option term shall be no more than 103% of the Base Rent and
Additional Rent charged during each Lease year then ending. In the event that Landlord's Extension
Term Rent Notice sets a rate higher than 103%of the Base Rent and Additional Rent charged during the
Lease year then ending, or increases the Base Rent by more than 3%year over year during the Extension
Term, Tenant shall have ten (10) days after receipt of such Extension Term Rent Notice to determine
24
whether or not it still desires to extend the Lease. If Tenant notifies Landlord in writing during such ten
(10)day period of its desire to not extend the Lease,the Lease will terminate at the end of the then-current
term as though such Option to Extend was not exercised.
IN WITNESS WHEREOF, the parties hereto are executing this Lease on the date first written
above. By signing below, all parties agree to be bound by all terms and conditions set forth in the lease
form to which this Addendum is attached.
Landlord:
Witnessed or Attested By: PR REAL ES TE,LLC
By:
Name:
Title-
HO n
By: _ �---x A
Name:
Title: �n�Tenant
Z's Karate Studio,LLC
By:
Name: Micheal Zm c
Title: Member
By.
Name Catherine
Title: Member
25
0MIT"A"
PROPERTY
[ATTACH SHOPPING CENTER SITE PLAN]
26
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EXHIBrr"A-I"
PREMISES
[ATTACH PLAN SHOWING
PREMISES BY DIAGONAL LINES]
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Exhibit A-1
501 011
suite 15-16
41000 SF. 0
CD
'CVT]'1'i]7T IID11
Landlord's Work
Space to be delivered in AS-IS,WIMRE-IS Condition.Landlord makes no representations or warranties
with respect to the operability or inoperability of any equipment found in the Premises at the time of
execution of this Lease.
Tenant's Work
Tenant shall make the alterations and improvements shown on the attached sketch(the measurements and
locations of walls on which are approximations only);which has been approved by Landlord.
The parties agree that Tenant shall be entitled to remove its trade fixtures and,specifically,any mirrors,
locker and display racks and cases,and any bag holders at the expiration or sooner termination of the Lease,
provided that Tenant patches the walls/floors to which such fixtures were attached.
B-1
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EXHIBIT"D"
USE RESTRICTIONS
Notwithstanding any other provision of this Lease,and without in any way expanding the use of
the Premises permitted hereunder,Tenant acknowledges and agrees that its use of the Premises is subject
to and will not violate the restrictions and exclusives set forth hereinbelow:
Intentionally Left Blank
D-1
Error?Unknown document property name:
EYMIT"E"
RULES AND REGULATIONS
Rules and Regulations
1, No radio or television antenna or cable connection or other similar devices shall be installed.
without first obtaining in each instance Landlord's consent in writing. No aerial shall be erected on the roof
or exterior walls of the Leased Premises,or on the grounds,without in each instance,the written consent of
Landlord. Any aerial so installed without such written consent shall be subject to removal without notice at
any time at Tenant's expense.
2. No loud speakers, televisions, phonographs, radios or other devices shall be used in a
manner so as to be heard or seen outside of the Leased Premises without the prior written consent of
Landlord.
3. If the Leased Premises are equipped with heating facilities separate from those in the
remainder of the Shopping Center,Tenant shall keep the Leased Premises at a temperature sufficiently high
to prevent freezing of water in pipes and fixtures.
4. The sidewalk areas immediately adjoining the Leased Premises shall be kept clean and free
from snow,ice,dirt and rubbish by Tenant to the satisfaction of the Landlord, and Tenant shall not place or
permit any obstructions or merchandise in such areas.
5. The plumbing facilities shall not be used for any other purpose than that for which they are
constructed,and no foreign substance of any kind shall be thrown therein,and the expense of any breakage,
stoppage,or damage resulting from a violation of this provision shall be bome by Tenant.
6. Tenant shall not burn any trash or garbage of any kind in or about the Leased Premises, the
Shopping Center,or within one mile of the outside property lines of the Shopping Center.
7. All deliveries or shipments of any kind to and from the Leased Premises,including loading
of goods, shall be made only by way of the rear of the Leased Premises or at any other location designated
by Landlord,and only at such reasonable time designated for such purpose by Landlord.
8. Tenant shall not use the public or common areas in the Shopping Center for business
purposes or special events unless prior approval in writing has been granted by the Landlord.
9. Tenant shall use, at Tenant's cost, a pest extermination contractor at,such intervals as
Landlord may require,but no less often than once annually.
10. Tenant shall not place, or permit, displays, decoration or shopping carts on the sidewalk in
front of the Leased Premises or upon any of the common areas of the Shopping Center.
11. Tenant shall not cause or permit any unusual or objectionable odors to be produced upon or
within,or released from,the Leased Premises.
F-1
Error!Unknown document property name.
EXHIBIT"F$
UTILITIES
A) Tenant shall be responsible for their share of water sewer usage.billed
B) Tenant shall contract directly with the local provider of gas and electric service to the leased
premises.
F-2
Error!Unknown document property name.
EXHIBIT"G"
SIGN CRITERIA
INTENTIONALLY LEFT BLANK
Error!Unlrnown document property name. G-1
1
EXHIBIT"H"
FORM OF GUARANTY
Michael D.and Catherine M.Zrncic
SHALL GUARANTEE THE OBLIGATIONS CONTEMPLATED IN THE LEASE OF WHICH
THIS EXFIIBIT H IS A PART. ANY FINANCIAL OBLIGATIONS V;rM RESPECT TO THIS
LEASE SHALL BE THE FINANCIAL OBLIGATIONS OF MICHAEL D AND CATHERINE M
ZRNCIC.
�L
Michael D d C therine .Zmcic
1-2
Error!Unknown document property name.
h
ASSIGNMENT AND ASSUMPTION OF LEASE AGREEMENT
This Assignment and Assumption of Lease Agreement (the "Assignment") is
made the Z day of May, 2009, by and between Z's Karate Studio, LLC, a Pennsylvania
limited liability company, Michael Zmcic Member and Guarantor and Catherine Zmcic
Member and Guarantor (collectively the "Assignors") and Fear Knot, Inc, Keith Wilkes
Guarantor (collectively the"Assignee") and PR Real Estate, LLC and Home Elite, Ltd as
tenants in common(collectively, "Landlord").
BACKGROUND
A. Pursuant to an Agreement of Sale of the Assets of Z's Karate Studio, LLC
(the "Agreement") by and among the Assignors and Assignee, the
Assignee-agreed to purchase, on_a.going-concern-basis,-substantially all of
the assets associated with the Assignors' karate studio business located at
East Gate Shopping Center in Mechanicsburg, Pennsylvania (the
"Facility").
B. Landlord and the Assignors predecessor in interest entered into that certain
Lease Agreement for the Facility dated April, 2007 and a Guaranty of the
Lease Agreement (together, the "Lease"), a copy of which is attached
hereto as "Exhibit A" and made part hereof.
C. Pursuant to the Agreement, the Assignors have agreed to assign the
Assignee all of the Assignors rights in the Lease and the Assignee have
agreed to accept such assignment and to assume the obligations of the
Assignors as Tenant thereunder.
AGREEMENT
NOW, THEREFORE, acknowledging the receipt of adequate consideration and intending
to be Iegally bound, the parties hereby agree as follows:
1. Assignment. The Assignors hereby assign, transfer, grant, bargain,
deliver, convey and set over to the Assignee as of the date of this
Assignment, subject to the terms and conditions of this Assignment, all of
the Assignors' right, benefit, privilege, title, interest, and obligations and
in and under the Lease or are to be fulfilled by the tenant under the Lease
on and after the date of this Agreement.
2. Acceptance and Assumption. The Assignee, jointly and severally,
hereby assume, accept, and receive the foregoing assignment and
delegation of all the Assignors' right, title and interest in and to the
obligations under the Lease. Landlord agrees not to Lease any space in
the Shopping Center to any other tenant who's primary business is Martial
Arts instruction or self-defense training.
3. Landlord's Consent. The Landlord acknowledges receipt of a payment
in an amount equal to Seventeen Hundred Dollars ($1,700) from the
Assignor as consideration for the grant by Landlord contained herein of
it's consent to the assignment of the Lease from the Assignors to the
Assignee and to cover Landlord's costs, and Landlord does hereby consent
to the assignment of the Lease from the Assignors to the Assignee.
4. Further Assurances. Each of the parties hereto agrees to execute and
deliver any and all further agreements, documents or instruments
necessary to effectuate.this assignment and the transactions referred to
herein or contemplated hereby or reasonably requested by the other hereto
5. Absolute. This Assignment is absolute. It is not for collateral purposes.
This Assignment shall be binding upon and inure to the benefit of
Assignors and Assignee and their respective successors and assigns.
6. Defaults. The Landlord hereby acknowledges that there are no defaults
under the Lease, and that all rents related charges to and through April,
2009 have been paid and $3,054.33 is owed for May 2009 rent. Assignors
and Assignee hereby acknowledge-that there are presently no defaults by
the Landlord existing under the Lease.
7. Waivers and Amendments. This Assignment may be amended,
modified, superseded, canceled, renewed or extended, and the terms and
conditions hereof may be waived, only by a written instrument signed by
the parties or, in the case of a waiver, by the party waiving compliance.
The rights and remedies herein provided are cumulative and are not
exclusive of any rights or remedies which any party may otherwise have at
law or in equity.
8. Counterparts. This Assignment may be executed in two or more
counterparts, each of which shall be deemed an original and all of which
taken together shall constitute a single instrument.
9. Governing Law. This Assignment shall be governed and construed in
accordance with the laws of the Commonwealth of Pennsylvania, without
regard to its conflicts of law and principles.
10. Savings Clause. If any provision of this Assignment, or the application of
any provision hereof to any person or circumstances, is held to be legally
invalid, inoperative or unenforceable, then the remainder of this
Assignment shall not be affected.
11. Headings. The headings in this Assignment are for reference purposes
only and shall not in any way affect the meaning or interpretation of this
Agreement.
12.
CONFESSION OF JUDGMENT(A)ANY PROTHONOTARY OR
ATTORNEY OF ANY COURT OF RECORD IS HEREBY
IRREVOCABLY AUTHORIZED AND EMPOWERED TO APPEAR
FOR TENANT IN ANY ACTION TO CONFESS JUDGMENT
AGAINST TENANT, AND MAY SIGN FOR TENANT AN
AGREEMENT,FOR WHICH THIS LEASE SHALL BE HIS
SUFFICIENT WARRANT,FOR ENTERING IN ANY COMPETENT
COURT AN ACTION OR ACTIONS IN EJECTMENT,AND IN ANY
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ASSUMPTION OF LEASE AGREEMENT Zs Karate to Fear Knot FINAL.doc
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SUITS OR IN SAID ACTIONS TO CONFESS JUDGMENT AGAINST
TENANT AS WELL AS ALL PERSONS CLAIMING BY,THROUGH
OR UNDER TENANT FOR THE RECOVERY BY LANDLORD OF
POSSESSION OF THE PREMISES. SUCH AUTHORITY SHALL
NOT BE EXHAUSTED BY ANY ONE OR MORE EXERCISES
THEREOF,BUT JUDGMENT MAY BE CONFESSED FROM TIME
TO TIME AS OFTEN AS ANY EVENT SET FORTH IN THIS LEASE
SHALL HAVE OCCURRED OR BE CONTINUING. SUCH POWERS
MAY BE EXERCISED DURING AS WELL AS AFTER THE
EXPIRATION OR TERMINATION OF THE ORIGINAL TERM AND
DURING AND AT ANY TIME AFTER ANY EXTENSION OR
RENEWAL OF THE TERM,AND/OR
(B) IF TENANT SHALL DEFAULT IN THE PAYMENT OF
RENT RESERVED OR PAYABLE HEREUNDER OR IN THE
PAYMENT OF ANY OTHER SUMS DUE HEREUNDERBY
TENANT,TENANT HEREBY AUTHORIZES AND EMPOWERS ANY
PROTHONOTARY OR ATTORNEY OF ANY COURT OF RECORD
TO APPEAR FOR TENANT IN ANY AND ALL ACTIONS WHICH
MAY BE BROUGHT FOR SAID RENT AND SAID OTHER SUMS;
AND TO SIGN FOR TENANT AN AGREEMENT FOR ENTERING IN
ANY COMPETENT COURT AN ACTION OR ACTIONS FOR THE
RECOVERY OF SAID RENT AND OTHER SUMS,AND IN SAID
SUITS OR IN SAID ACTION OR ACTIONS TO CONFESS
JUDGMENT AGAINST TENANT FOR ALL OR ANY PART OF SAID
RENT AND SAID OTHER SUMS,INCLUDING,BUT NOT LIMITED
TO,THE AMOUNTS DUE FROM TENANT TO LANDLORD UNDER
EACH OF THE SUBSECTIONS OF THIS SECTION AND FOR
INTEREST AND COSTS,TOGETHER WITH A REASONABLE
ATTORNEY'S COMMISSION FOR COLLECTION OF NOT LESS
THAN FIVE THOUSAND DOLLARS ($5,000). SUCH AUTHORITY
SHALL NOT BE EXHAUSTED BY ONE EXERCISE THEREOF,BUT
JUDGMENT MAY BE CONFESSED AS AFORESAID FROM TIME
TO TIME AS OFTEN AS ANY OF SAID RENT AND OTHER SUMS
SHALL FALL DUE OR BE IN ARREARS AND SUCH POWERS MAY
BE EXERCISED AS WELL AFTER THE EXPIRATION OF THE
TERM OF THIS LEASE,
THIS LEASE PROVIDES FOR THE CONFESSION OF JUDGMENT
AGAINST TENANT FOR MONEY AND FOR EJECTMENT. IN
CONNECTION THEREWITH,TENANT,KNOWINGLY,
VOLUNTARILY,INTENTIONALLY AND UPON ADVICE OF
SEPARATE COUNSEL,UNCONDITIONALLY WAIVES ANY AND
ALL RIGHTS IT MAY HAVE TO PRIOR NOTICE AND AN
OPPORTUNITY FOR HEARING UNDER THE RESPECTIVE
CONSTITUTIONS AND LAWS OF THE UNITED STATES AND THE
COMMONWEALTH OF PENNSYLVANIA.WITHOUT
LIMITATION OF THE FOREGOING,TENANT HEREBY
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5/7/2009 12:40 PM
SPECIFICALLY WAIVES ALL RIGHTS TENANT HAS OR MAY
HAVE TO NOTICE AND OPPORTUNITY FOR A HEARING PRIOR
TO EXECUTION UPON ANY JUDGMENT CONFESSED AGAINST
TENANT BY LANDLORD HEREUNDER.
TENANT(n CERTIFIES THAT NO REPRESENTATIVE,AGENT
OR ATTORNEY OF LANDLORD HAS REPRESENTED,
EXPRESSLY OR OTHERWISE,THAT LANDLORD WILL NOT
SEEK TO EXERCISE OR ENFORCE ITS RIGHTS TO CONFESS
JUDGMENT HEREUNDER,AND (II)ACKNOWLEDGES THAT
THE EXECUTION OF THIS LEASE BY LANDLORD HAS BEEN
MATERIALLY INDUCED BY,AMONG OTHER THINGS,THE
INCLUSION IN THIS LEASE OF SAID RIGHTS TO CONFESS
JUDGMENT AGAINST TENANT. TENANT FURTHER
ACKNOWLEDGES THAT IT HAS HAD THE OPPORTUNITY TO
DISCUSS-SAID PROVISIONS WITH TENANT'S INDEPENDENT
LEGAL COUNSEL AND THAT THE MEANING AND EFFECT OF
SUCH PROVISIONS HAVE BEEN FULLY EXPLAINED TO
TENANT BY SUCH COUNSEL,AND AS EVIDENCE OF SUCH
FACT AN AUTHORIZED OFFICER OF TENANT SIGNS HIS OR
HER IN TIALS IN THE SPACE PROVIDED BELOW.
(Initials)
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5/7/2009 12:40 PM
05/07/7d09 13:02 7175919822 PAGE 06
iii 1 WITNFSS WHEREOF, the parties Jjavc caused this Assignment and Assumption of
Lease Agreement as of the day and year set forth above.
ASSIGNORS:
Michael Zraci arantor O
r
C herine Zrncic, antor
Z's Karate Studio,LLC
By
rite: C;x*he_ W1. ern ca L
ASSIGN
�e i Wilkes,Guarantor
Fear Knot,I c. j
By:
N' e:
Title:
LANDLORD:
PR REAL ESTATE, LLC AND HOME
ELITE, LTD, AS TENANTS IN
COMMON
BY- c
br
Name: S a.�, G 1'Iv r...z T<c. CM
Title:
i';W'nilIt"A(;RF,k;jYTE•'W.6oc 5
Unpaid Charges Page 1 of 2
PM 1%anagemer7t
Date: 4/18/2014
Tenant Unpaid Charges
Code t0000238 Property teas Lease From 7/1/2007
Name Ta Karate Studio, LLC Unit 15-16 Lease To 6/30/2012
Address 907 Lancelot Ave. Status Past Move In 4/26/2007
Rent 2063.43 Move Out 11/30/2012
City St. Zip Mechanicsburg, PA 17050 Phone(0)- (717)802-9600 Phone(H)-
Date Description Charge Payment Balance Chg#
1/11/2010 Late Fees, 10%of$777.73 77.77 77.77 135888
9/1/2010 CAM (09/2010) 1,166.00 743.02 500.75 152015
10/1/2010 CAM (10/2010) 1,166.00 1,666.75 154184
11/1/2010 CAM (11/2010) 1,166.00 2,832.75 156315
12/1/2010 CAM (12/2010) 1,166.00 3,998.75 159168
1/1/2011 CAM (01/2011) 1,166.00 5,164.75 161534
3/1/2011 CAM (03/2011) 1,166.00 6,330.75 165619
4/1/2011 CAM (04/2011) 1,166.001 7,496.75 167491
6/11/2011 Late Fees, 10% of$11266.92 1,126.69 8,623.44 174269
7/11/2011 Late Fees, 10%of$12163.10 1,216.31 9,839.75 175985
8/1/2011 CAM (08/2011) 1,166.00 11,005.75 176689
9/1/2011 CAM (09/2011) 1,166.00 12,171.75 180696
9/11/2011 Late Fees, 10%of$14733.21 1,473.32 13,645.07 182227
10/1/2011 CAM (10/2011) 1,166.00 14,811.07 183017
10/11/2011 Late Fees, 10%of$14851.64 1,485.16 16,296.23 184552
11/1/2011 CAM (11/2011) 1,166.00 17,462.23 185085
12/1/2011 CAM (12/2011) 1,166.00 18,628.23 186733
12/11/2011 Late Fees, 10% of$16644.00 1,664.40 20,292.63 187817
1/1/2012 CAM (01/2012) 1,166.00 21,458.63 188602
1/11/2012 Late Fees, 10%of$17540.19 1,754.02 23,212.65 189684
2/1/2012 CAM (02/2012) 1,166.00 24,378.65 190396
2/11/2012 Late Fees, 10%of$18436.38 1,843.64 26,222.29 191580
3/1/2012 CAM (03/2012) 1,166.00 27,388.29 192283
3/11/2012 Late Fees, 10%of$19332.57 1,933.26 29,321.55 193338
4/1/2012 CAM (04/2012) 1,166.00 30,487.55 194052
4/11/2012 Late Fees, 10% of$20228.76 2,022.88 32,510.43 195118
5/1/2012 CAM (05/2012) 1,166.00 33,676.43 196023
6/1/2012 CAM (06/2012) 1,166.00 34,842.43 197648
6/11/2012 Late Fees, 10%of$22021.14 2,202.11 37,044.54 198739
7/1/2012 CAM (07/2012) 1,166.00 38,210.54 199646
8/1/2012 CAM (08/2012) 1,166.00 39,376.54 201171
8/11/2012 Late Fees, 10% of$21950.60 2,195.06 41,571.60 202251
9/1/2012 CAM (09/2012) 1,166.00 42,737.60 203162
9/11/2012 Late Fees, 10% of$22846.79 2,284.68 45,022.28 204051
hos://www.yardiaspla5.con/20220pintzuk/reports/Jnpaid_Charges.asp?hTent=2052&Re... 4/18/2014
Unpaid Charges Page 2 of 2
10/1/2012 CAM (10/2012) 1 166.00 46,188.28 205158
10/11/2012 Late Fees, 10%of$26076.22 2,607.621 48,795.90 206552
11/1/2012 CAM (11/2012) 1,166.00 49,961.90 207257
12/1/2012 CAM (12/2012) 1,166.00 51,127.90 209027
12/1/2012 RENT(12/2012) 2,063.43 1,265.67 51,925.66 209028
1/11/2013 Late Fees, 10%of$30201.84 1 3,020.181 54,945.84 212476
https://www.yardiaspIa5.com/20220pintzuk/reports/Unpaid_Charges.asp?hTent--2052&Re... 4/18/2014
i
I
ANDERSON KILL P.C.
Attorneys and Counselors at Law
1600 MARKET STREET, SUITE 2500■ PHILADELPHIA, PA 19103
TELEPHONE: 267-216-2700 ■ FAX: 215-568-4573
www.andersonkill.com
Frank G.Murphy,Esq.
fmurphy@andersonkill.com
267-765-8237
VIA REGULAR MAIL AND CERTIFIED MAIURRR May 8, 2014
FEAR KNOT Martial Arts Keith Wilkes
4 South Market Street 4 South Market Street
Suite 101 Suite 101
Elizabethtown, PA 17022 Elizabethtown, PA 17022
Attn: Keith Wilkes
RE: Assignment and Assumption of Lease Agreement("Lease") dated May 7,
2009, property located at East Gate Shopping Center, Suites 15 and 16,
Mechanicsburg, PA ("Premises")
FORMAL DEMAND FOR PAYMENT OF RENT AND NOTICE OF DEFAULT
Dear Mr. Wilkes:
We represent the Landlord for the above referenced Premises. Notice is hereby given
that You are in default of your obligations under the Assignment and Assumption of Lease
Agreement referenced above by Your failure to pay CAM and other charges when due. As of
December 2013, CAM and other charges in the amount of$54,945.84 is past due and owing.
Pursuant to the terms of the Lease, You have ten (10) days to cure this default. Landlord
formally demands payment owed by Tenant to Landlord according to the ledger of Unpaid
Charges attached hereto.
Please be advised that Landlord must have your full payment within ten (10) days.
Should you fail to make full payment, Landlord reserves its right to exercise all rights and
seek all remedies pursuant to the Lease and the law. These rights include, without limitation,
commencing litigation, seeking confessed judgment against each of You, seeking eviction,
accelerating all rent due until the end of the Lease term, and recovering late fees, attorneys'
fees, court costs, other collection costs, and interest as applicable.
Thank you for your attention and anticipated cooperation.
Ve ly y r
Frank G. Murphy
Enclosure
cc: Landlord
New York, NY ■ Ventura, CA ■ Stamford, CT ■Washington, DC 0 Newark, NJ a Philadelphia, PA
Unpaid Charges Page 1 of 2
PM Management
Date:4/18/2014
Tenant Unpaid Charges
Code t0_ 000238 Property ceast Lease From 7/1/2007
Name Ta Karate Studio,LLC Unit 15-16 Lease To 6/30/2012
Address 907 Lancelot Ave. Status Past Move In 4/26/2007
Rent 2063.43 Move Out 11/30/2012
City St. Zip Mechanicsburg, PA 17050 Phone(0)- (717)802-9600 Phone(H)-
Date Description Charge Payment Balance Chg#
1/11/2010.. Late-Fees,-10%of$777.73 77.77 77.77 _135888
9/1/2010 CAM(09/2010) 1,166.00 743.02 500.75 152015
10/1/2010 CAM(10/2010) 1,166.00 1,666,75 154184
11/1/2010 CAM (11/2010) 1,166.00 2,832.75 156315
12/1/2010 CAM(12/2010) 1,166.00 3,998.75 159168
1/1/2011 CAM(01/2011) 1,166.00 5,164.75 1k1534
3/1/2011 CAM(03/2011) 1,166.00 6,330.75 165619
4/1/2011 CAM (04/2011) 1,166.00 7,496.75 167491
6/11/2011 Late Fees, 10%of$11266.92 1,126.69 8,623.44 17 269
7/11/2011 Late Fees, 10%of$12163.10 1,216.31 9,839.75 175985
8/1/2011 CAM(08/2011) 1,166.00 11,005.75 176689
9/1/2011 CAM(09/2011) 1,166.00 12,171.75 180696
9/11/2011 Late Fees, 10%of$14733.21 1,473.32 13,645.07 182227
10/1/2011 CAM(10/2011) 1,166.00 14,811.07 183017
10/11/2011 Late Fees, 10%of$14851.64 1,485.16 16,296.23 184552
11/1/2011 CAM(11/2011) 1,166.00 17,462.23 185085
12/1/2011 CAM(12/2011) 1,166.00 18,628.23 186733
12/11/2011 Late Fees, 10%of$16644.00 1,664.40 20,292.63 187617
1/1/2012 CAM (01/2012) 1,166.00 21,458.63 188602
1/11/2012 Late Fees, 10%of$17540.19 1,754.02 23,212.65 189684
2/1/2012 CAM (02/2012) 1,166.00 24,378.65 190396
2/11/2012 Late Fees, 10%of$18436.38 1,843.64 26,222.29 1 158
3/1/2012 CAM(03/2012) 1,166.00 27,386.29 192283
3/11/2012 Late Fees, 10%of$19332.57 1,933.26 29,321.55 193338
4/1/2012 CAM (04/2012) 1,166.00 30,487.55 194052
4/11/2012 Late Fees,'10%of$20228.76 2,022.88 32,510.43 125118
5/1/2012 CAM(05/2012) 1,166.00 33,676.43 196023
6/1/2012 CAM (06/2012) 1,166.00 34,842.43 197648
6/11/2012 Late Fees, 10%of$22021.14 2,202.11 37,044.54 198739
7/1/2012 CAM (07/2012) 1,166.00 38,210.54 1 64
8/1/2012 CAM (08/2012) 1,166.00 39,376.54201171
8/11/2012 Late Fees,10%of$21950.60 2,195.06 41,571.60 202251
9/1/2012 CAM(09/2012) 1,166.00 42,737.60 203162
9/11/2012 Late Fees, 10%of$22846.79 2,284.68 45,022.28 204051
https://www.yardiaspla5.com/20220pintzuk/reports/Unpaid_Charges.asp?hTent=2052&Re.., 4/18/2014
Unpaid Charges Page 2 of 2
10/1/2012 CAM(10/2012) 1,166.00 46,188.28 205158
10/11/2012 Late Fees, 10%of$26076.22 2,607.62 48,795.90206552
11/1/2012 CAM (11/2012) 1,166,00 49,961.90 2g7257
12/1/2012 CAM (12/2012) 1,166.00 51,127.90 Z09027
12/1/2012 RENT(12/2012). 2,063,43 T265.671 51,925.66 Z 028
1/11/2013 Late Fees, to%of$30201.84 .3,020.181 54,945.84 212476
https://www.yardiaspla5.com/20220pintzuk/reports/Unpaid Charges.asp?hTent--2052&Re... 4/18/2014
ANDERSON KILL P.C.
Attorneys and Counselors at Law
1600 MARKET STREET,SUITE 2500n PHILADELPHIA, PA 19103
TELEPHONE:267-21'6-2700■ PAX: 215-568-4573
www.andersonkill.com
Frank G.Murphy,Esq.
fmurphy@andersonkill.com
267-765-8237
VIA REGULAR MAIL AND CERTIFIED MAIL/RRR June 10, 2014
FEAR KNOT Martial Arts Keith Wilkes
4 South Market Street 4 South Market Street
Suite 101 Suite 101
Elizabethtown, PA 17022 Elizabethtown, PA 17022
Attn: Keith Wilkes
RE: Assignment and Assumption of Lease Agreement("Lease") dated May 7,
2009, property located at East Gate Shopping Center, Suites 15 and /6,'
Mechanicsburg, PA("Premises")
Dear Mr. Wilkes:
Thank you for your letter of May 16, 2014 responding to Landlord's Demand for Rent.
The Spreadsheet I provided to you is Landlord's normal and customary method for keeping
track of individual Lessee's credits and debits concerning a leased property. The
Spreadsheet was prepared in the normal course of business. Accordingly, it is not clear what
you mean by "no credible evidence" was presented concerning the amounts Landlord claims
due. With all due respect, you are capable of confirming almost all the data Landlord
presented in the Spreadsheet. Since you have not disputed any of the balances shown by
presenting me with any evidence that you did in fact pay rent or other charges that were not
properly credited on the Spreadsheet, I reject your contention that any further support is
necessary to establish Landlord's claim.
Accordingly, please remit full payment to Landlord immediately and/or explain
specifically what charges you dispute accompanied by payment for the undisputed charges.
Your failure to do-so may result in the Landlord pursuing any and all remedies available to
Landlord under the Lease, as amended, and Pennsylvania law.
Please be guided accordingly.
Very trul yo rs,
rank G. Murphy
cc: Landlord
New York, NY■Ventura, CA ■ Stamford, CT ■Washington, DC ■ Newark, NJ ■ Philadelphia, PA
Ronny R Anderson
Sheriff
Jody S Smith
Chief Deputy
Richard W Stewart
Solicitor
SHERIFF'S OFFICE OF CUMBERLAND COUNTY
THE PFW T HONQ AR
2.0iti SEP -2 PM 3: 55
rUPESYLVCOUNTY
N AN
QmFmCc QF THE $NaRIFF
PR Real Estate LLC (et al.)
vs. Case Number
Keith Wilkes 2014-4900
SHERIFF'S RETURN OF SERVICE
08/22/2014 03:36 PM - Deputy Shawn Harrison, being duly sworn according to law, served the requested Complaint
& Notice by handing a true copy to a person representing themselves to be Chris Ke -r Business
Associate, who accepted as "Adult Person in Charge" for Keith Wilkes a We po Drive, Suite 900,
Lower Allen, Mechanicsburg, PA 17055.
SHERIFF COST: $39.30 SO ANSWERS,
August 25, 2014
(c) CountvSuito Sharia, Teleosoft, Inc.
RONNY R ANDERSON, SHERIFF
IN THE COURT OF COMMON PLEAS OF THE 9TH JUDICIAL DISTRICT
CUMBERLAND COUNTY, PENNSYLVANIA
PR REAL ESTATE LLC AND : No. 14 — 4900 Civil
HOME ELITE, LTD., AS TENANTS :
IN COMMON, C/O PINTZUK :
REALTY GROUP :
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Defendant : CIVIL ACTION — LAW
PRAECIPE FOR ENTRY OF APPEARANCE
TO THE PROTHONTARY:
Kindly enter the appearance of Keith E. Kendall, Esq., and Scaringi & Scaringi,
P.C. as attorney representing the Defendant in the above matter, Keith Wilkes.
Date:
A a(
Keith E. Kendall, Esq.
Attorney for Defendant
PA Attorney ID No. 42910
SCARINGI & SCARINGI, P.C.
2000 Linglestown Road
Suite 106
Harrisburg, PA 17110
(717) 657-7770
(717) 657-7797 (FAX)
keith@scaringdamcorn
CERTIFICATE OF SERVICE
I Keith E. Kendall, attorney for Defendant, hereby certify that I have
this date caused the foregoing Defendant's Praecipe for Entry of Appearance
to be served upon counsel for the parties or the parties to this action, by
mailing true and correct copies of same, by First Class, U.S. Mail; addressed to
the following persons at the following addresses:
Date:
Frank G. Murphy, Esq.
Arthur R. Armstrong, Esq.
Anderson Kill, P.C.
1600 Market Street, Suite 2500
Philadelphia, PA 19103
Keith E. Kendall, Esq.
Attorney for Defendant
Brian C. Caffrey, Esq.
PA ID # 42667
Attorney for Petitioner/Defendant
Scaringi & Scaringi, P.C.
2000 Linglestown Road, Suite 106
Harrisburg, PA 1711
717-657-7770 (phone)
717-657-7797 (fax)
brian scaringilaw.com
r:LF,D-OFFICE
"OE PROTH UN() TAR
Th OCT -I PH 1:51
CUMBERLAND COUNTY
PENNSYLVANIA
IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PA
PR REAL ESTATE, LLC, AND
HOME ELITE, LTD., AS
TENANTS IN COMMON,
Plaintiffs,
VS.
KEITH WILKES,
Defendant
NOTICE TO PLEAD
TO: PR REAL ESTATE, LLC, AND
HOME ELITE, LTD.
c/o Frank G. Murphy, Esq.
Arthur R. Armstrong, Esq.
Anderson Kill P.C.
1600 Market Street, Suite 2500
Philadelphia, PA 19103
No. 14 -4900 -CIVIL
JURY TRIAL DEMANDED
You are hereby notified to plead to the within New Matter within twenty (20) days after
service hereof or the alleged facts may be deemed and/or a judgment may be taken against you.
1
October 1, 2014
nan C. Caffrey, Esq.
PA ID # 42667
Attorney for Defendant
Scaringi & Scaringi, P.C.
2000 Linglestown Road, Suite 106
Harrisburg, PA 1711
717-657-7770 (phone)
717-657-7797 (fax)
brian@scaringilaw.com
Brian C. Caffrey, Esq.
PA ID # 42667
Attorney for Petitioner/Defendant
Scaringi & Scaringi, P.C.
2000 Linglestown Road, Suite 106
Harrisburg, PA 1711
717-657-7770 (phone)
717-657-7797 (fax)
brian scaringilaw.com
IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PA
PR REAL ESTATE, LLC, AND
HOME ELITE, LTD., AS
TENANTS IN COMMON,
Plaintiffs,
vs.
KEITH WILKES,
Defendant
No. 14 -4900 -CIVIL
JURY TRIAL DEMANDED
DEFENDANT'S ANSWER AND NEW MATTER
1 Admitted, upon information and belief. By way of further answer, the shopping
plaza known as East Gate Shopping Center was demolished and no longer exists as such.
2. Admitted.
3 Admitted.
4. No answer required.
5. Admitted.
6. Admitted.
7. Admitted.
8. Admitted.
9. Paragraph 9 sets forth a legal conclusion to which no response is required. To the
extent any answer is required, Defendant's signature appears under the word "Guarantor" on the
last page of the Assignment and Assumption of Lease Agreement dated May 7, 2009.
10. Admitted that the lease term was extended and that the Tenant, Fear Knot, Inc.
("Fear Knot") continued to occupy the Property until December, 2012. Denied that Fear Knot
then "abandoned and allegedly surrendered the Premises." On the contrary, Fear Knot removed
itself from the premises upon notification from the Plaintiffs representative that the lease term
was terminating. Fear Knot removed itself from the premises in accordance with the Plaintiff's
notice.
11. Denied that at the time Fear Knot surrendered the premises, past rent in the
amount of $54,945.84 was due and owing on the Lease. Defendant further denies that the
"Account History" attached to the Complaint as Exhibit "C" is either "true" or "correct."
Admitted that Fear Knot has not paid the Plaintiff $54,945.84, which it does not owe to Plaintiff.
12. Defendant denies the characterization of the Lease alleged by Plaintiff by
reference to the two words "without demand" contained in a voluminous document. The Lease
will speak for itself. It is admitted only that Plaintiff sent to Fear Knot and Mr. Wilkes the
letters, copies of which are attached as Exhibit "D" to the Complaint.
13. Denied that the amount alleged in paragraph 11 of the Complaint is due. It is
admitted that Mr. Wilkes and Fear Knot have refused, and continue to refuse, to pay that amount
to the Plaintiff, which neither owes to the Plaintiff
14. Defendant denies Plaintiff's characterization of paragraph 12 of the Assignment
and paragraph 47 of the Lease, which speak for themselves. By way of further answer,
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paragraph 12 of the Assignment applies, by its terms, only to confession of judgment, which is
not involved in the instant action.
15. It is admitted that pursuant to the Lease, Fear Knot agreed to pay real estate taxes,
water, sewer, gas and electricity expenses, and common area maintenance charges. By way of
further answer, Fear Knot was required to, and did contract directly with the suppliers of gas and
electricity. Additionally, the parties amended the Lease, as fully set forth in Defendant's new
matter, below.
16. It is denied that as of December, 2014 the amount due and owing by Fear Knot or
Keith Wilkes for unpaid rent under the Lease is $54,945.84. By way of further answer,
December, 2014 has not yet occurred. Paragraph 11 set forth above is incorporated herein by
reference. Additionally, the parties amended the Lease, as fully set forth in Defendants new
matter, below.
17. Admitted, upon information and belief.
WHEREFORE, Defendant demands judgment in his favor and against Plaintiff.
NEW MATTER
18. Paragraphs 1-17 set forth above are incorporated herein by reference.
19. On December 7, 2009 Fear Knot president Keith Wilkes addressed a letter to the
Plaintiff (hereinafter "Landlord" or "Plaintiff'), requesting, because of Fear Knot's cash flow
difficulties, that the Landlord accept three installments of the rent, spread out over each month.
See letter of December 7, 2009, attached hereto as Exhibit "A."
5
• 20. Landlord accepted rent payments in three installments for the month of
December, 2009, without objection or complaint. See Landlord's chart of "Tenant Unpaid
Charges," dated April 18, 2014 and attached as part of Exhibit "C" to the Complaint."
21. By January, 2010 Fear Knot could not continue to pay rent to all of the landlords
for its five locations without going out of business.
22. Consequently, on January 4, 2010 Fear Knot president Keith Wilkes addressed a
letter to the Landlord, requesting a rent reduction of 25 % for a six-month period, and a
continuation of payment of rent over the course of each month in three installments. See letter of
January 4, 2010, attached hereto as Exhibit "B."
23. Fear Knot paid thrice -monthly installments of $775.75 from February, 2010
through December, 2011, without objection or complaint by the Landlord.
24. On July 15, 2010 Mr. Wilkes again addressed a letter to the Landlord, attached
hereto as Exhibit "C," requesting a six-month extension of the parties' rent reduction
arrangement.
25. After Mr. Wilkes's July 15, 2010 letter, the Landlord expressed no objection or
complaint regarding continuation of the rent reduction arrangement.
26. From January, 2012 through September, 2012, and in November, 2012, Fear Knot
paid the entire amount of rent due, in addition to partial payments of the "additional rent"
required under the Lease.
27. The Landlord made no complaint or objection to the payments made by Fear Knot
between January, 2012 and September, 2012 and in November, 2012.
28. The Landlord accepted the modification of Fear Knot's rent obligation, as
demonstrated by its acceptance of and concurrence in the modifications proposed by Fear Knot,
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and as further demonstrated by the Landlord's chart of Tenant Unpaid Charges. See Exhibit "C"
to the Complaint.
29. The parties' concurrence in the modified rent arrangements proposed by Fear
Knot is further demonstrated by both parties' adherence to the terms as modified for the
remainder of Fear Knot's tenancy.
Deprivation of Fear Knot's peaceful and quiet enjoyment
of the leasehold premises
30. Throughout Fear Knot's tenancy, a neighboring Somalian restaurant, also a tenant
of Landlord's, presented a constant problem to Fear Knot and interfered with Fear Knot's
peaceful and quiet enjoyment of its leasehold premises.
31. Patrons of the restaurant would park vehicles in the fire lane immediately in front
of Fear Knot's premises, interfering with ingress to and egress from the premises and creating a
dangerous condition, in violation of paragraph 54 of the Lease.
32. Within the first year of Fear Knot's tenancy, an Islamic Learning Center opened
next door to Fear Knot's school, on the opposite side from where the Somalian restaurant was
located.
33. The Islamic Center would be a nuisance to Fear Knot, its customers and guests for
the remainder of Fear Knot's tenancy, which constituted a violation of paragraph 34 of the
Lease. See Exhibit "A" to the Complaint, at page 13, paragraph 34.
34. On one occasion, Mrs. Wilkes observed, through the undraped front window, that
six boys were sleeping on the floor of the Islamic Center. This was clearly visible to Fear Knot's
customers and guests and very embarrassing to Mr. and Mrs. Wilkes.
7
35. From May, 2011 to December, 2012 there was a broken-down dark -green mini-
van parked in the prime parking space in front of Fear Knot's premises, with curtains in the
windows, several broken windows, and flat tires.
36. On Many occasions when Mr. Wilkes's wife came into work in the afternoon
there were children sleeping in the van.
37. The van gave the plaza premises an unsafe and run-down appearance, creating an
unsafe condition, disturbing Fear Knot's customers, and causing Fear Knot to lose valuable
customers and business, all in violation of paragraphs 34 and 54 of the Lease. See Exhibit "A" to
the Complaint, at page 13, paragraph 34; p. 19, paragraph 54.
38. Mrs. Wilkes complained to the Landlord's maintenance manager, asking to have
the van removed from the parking lot; however, the Landlord never removed the van.
39. Landlord's refusal to remove the nuisance conditions about which Fear Knot
complained constitutes a breach of the Landlord -Plaintiff's duties and obligations under the
Lease, which resulted in interference with and damage to Fear Knot's business..
40. During the last two -and -a half years of Fear Knot's tenancy, a number of vehicles
with out-of-state license plates from states such as North Carolina, New York and Virginia, as
well as the District of Columbia, were left in the parking lot for a week to two weeks at a time,
depriving Fear Knot of much-needed parking spaces, interfering with Fear Knot's customers'
ability to park on the premises, contributing to Fear Knot's loss of business, and constituting
violations of paragraphs 34 and 54 of the Lease.
41. On Friday nights and Saturdays, men and boys from the Islamic Learning Center,
often numbering 50-100, would roam through and loiter in the plaza parking lot.
8
42. The men and boys loitering in the parking lot would inconvenience, accost, and
intimidate Fear Knot's customers and guests, in some instances causing them to never return to
the school.
43. On a Saturday when a customer was carrying a birthday cake from the parking lot
to the school, a group of boys swarmed the customer, asking if they could have some cake.
44. Because of these conditions and conduct, guests of Fear Knot's school, especially
mothers, felt uneasy coming to the school. A number of parents who were interested in enrolling
their children in classes did not return after their initial visit, resulting in lost business for Fear
Knot.
45. There were instances when young men from the Islamic school would follow
women into the parking lot after a fitness class and photograph them. This caused Fear Knot to
cancel that fitness program, resulting in loss of revenue.
46. One of Fear Knot's customers, who was planning to have a birthday party at the
school, told Mrs. Wilkes that she was afraid of what her friends and family might think because
of the roaming about of men from the Islamic Center, the trash strewn everywhere, and the
broken-down vehicles in the parking lot.
47. Fear Knot representatives had to call the police several times because young men
from the Islamic center would park their vehicles in front of the school, three or four deep, and
sit on the trunks of the vehicles and loiter when the school's students would be arriving for class.
48. At times, kids from the Islamic center would enter the school during classes,
disturbing the classes.
49. During one summer during Fear Knot's tenancy, three men set up a table in front
of Fear Knot's school and would sit there, drinking tea. These men would sit on the ledge of
9
Fear Knot's window, lean against the window, and place their hands on the window, leaving
hand prints that Fear Knot personnel had to wash off.
50. Mrs. Wilkes complained to the Landlord about these conditions; however, the
Landlord never took effective action to eliminate these conditions so as to restore to Fear Knot
the peaceable and quiet enjoyment of its leasehold premises or to allow Fear Knot to have
meaningful use of spaces in the parking area, in violation of paragraphs 34 and 54 of the Lease.
51. The persistence of these conditions caused Fear Knot to lose customers and
income.
52. By failing and refusing to remedy the intolerable conditions described above, the
Landlord allowed a nuisance to persist at the leasehold premises, which deprived Fear Knot of
the peaceful and quiet enjoyment of its leasehold premises, deprived it of parking spaces which it
needed to conduct its business and accommodate its customers, and cost it valuable customers
and income, all in violation of paragraphs 34 and 54 of the Lease. See Exhibit "A" to the
Complaint, paragraphs 34 and 54.
53. Mrs. Wilkes called the property manager to complain about the trash dumpster,
which contained a couch and other large items and was overflowing onto the ground.
54. It appeared to Mrs. Wilkes that the dumpster had not been emptied in months.
55. Trash was also strewn in front of and in the back area of the Plaza.
56. Mrs. Wilkes later discovered that the trash collector had stopped removing the
trash from the plaza because the Landlord had stopped paying its bills.
57. Allowing this condition to persist constituted a violation of the Lease on the
Landlord's part.
10
58. When Fear Knot had first assumed the Lease, there were two or three businesses
in the front of the plaza, along Simpson Ferry Road, and three or four on the Sheely Lane side of
the plaza.
59. The woman who owned the Merle Norman store in the front of the plaza told Mrs.
Wilkes that she was afraid to be open past 5:00 p.m. because of the number of men lurking
around the premises in the evening. This owner closed her shop and relocated to the shopping
center across the street.
60. A State Farm Insurance agency also closed during Fear Knot's tenancy.
61. Representatives of an Army recruiting center, located two doors down from Fear
Knot's premises, often complained to Fear Knot's representatives about the conditions at the
plaza. The recruiting center also closed and re -opened in the shopping center across the street.
62. By the summer of 2011, the only tenants remaining in the plaza were Fear Knot,
the Somalian restaurant, the Islamic Learning Center, and an electrical supply company.
63. in November, 2011, the president of the Landlord, Scott Homel, visited each of
the business owners who, remained in the plaza. At that time, Mrs. Wilkes told Homel that Fear
Knot's business had been hurt by conditions at the plaza, and that Fear Knot appreciated the
continued decrease in Fear Knot's rent. Homel replied, "Sure."
Dispute as to amount owing to Landlord
64. The Landlord's allowance of the nuisance conditions described above to persist
on the plaza premises, and its violations of the Lease entitle Fear Knot to an abatement of the
rent which Fear Knot paid or was responsible for paying.
11
65. Fear Knot is further entitled to an abatement of additional rent under the Lease,
which was used to pay real estate taxes, insurance, and common area expenses (referred to as
CAM charges by Landlord), because the Landlord was not maintaining the common areas of the
premises. Specifically, the Landlord was not having the garbage collected, was not maintaining
the grounds around the plaza, and was allowing broken-down and unauthorized vehicles to
remain in the parking lot for weeks at a time, all in violation of the Landlord's obligations under
the Lease.
66. Fear Knot does not owe anything to Plaintiff beyond what it has already paid the
Plaintiff.
67. The late charges which Plaintiff purports to assess are grossly inflated and in
violation of paragraphs 4 and 5 of the Lease, and further are unwarranted in view of the
Landlord's violations of the Lease detailed above. See Exhibit "A" to Complaint.
68. The Landlord never returned Fear Knot's security deposit in the amount of
$1,833.33, even though Fear Knot surrendered the premises at the termination of the Lease in a
clean and orderly condition.
WHEREFORE, Defendant demands judgment in his favor and against Plaintiff
October 1, 2014
nan C. Caffrey, Esq.
PA ID # 42667
Attorney for Defendant
Scaringi & Scaringi, P.C.
2000 Linglestown Road, Suite 106
Harrisburg, PA 1711
717-657-7770 (phone)
717-657-7797 (fax)
brian@scaringilaw.com
12
10/01/2014 11: AM FAX 7174920224 THE UPS STORE
It 0001/0001
VERIFICATION
I hereby verify that the facts set forth in the foregoing Answer and New Matter are true
and correct to the best of my knowledge, information and belief. 1 understand false statements
herein arc made subject to the penalties of 18 Pa.C.S. 4904, relating to unsworn falsification to
authorities.
September 30, 2014
13
IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PA
PR REAL ESTATE, LLC, AND
HOME ELITE, LTD., AS
TENANTS IN COMMON,
Plaintiffs,
vs.
KEITH WILKES,
Defendant
No. 14 -4900 -CIVIL
JURY TRIAL DEMANDED
CERTIFICATE OF SERVICE
I, Sherry A. Clark, Paralegal, do hereby certify that on this, the day of October,
2014, I served the foregoing Defendant's Answer and New Matter in the above -captioned matter
upon the following individuals by first class mail, postage prepaid, addressed as follows:
Date
Frank G. Murphy, Esquire
Arthur R. Armstrong, Esquire
Anderson Kill, P.C.
1600 Market Street, Suite 2500
Philadelphia, PA 19103