HomeMy WebLinkAbout14-4901 E D
ANDERSON KILL P.C. Y "` SIE PH HONG TAicl'
BY: Frank G. Murphy, Esquire 2014 AUG 19 AM 10: �
Arthur R. Armstrong, Esquire
PA I.D. Nos. 65886; 203816 CUM FRLAhD COUNTY
1600 Market Street, Suite 2500 PEfkPdSYLVANIA
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 p, Uv l
Jenkintown, PA 19046 NO. I ~ `-I -t C 1
Plaintiff,
V.
FEAR KNOT, INC.
4700 Westport Dr.
Mechanicsburg, PA 17055
Defendant.
CONFESSION OF JUDGMENT FOR MONEY
Pursuant to the authority contained in the warrant of attorney, the original or a
copy of which is attached to the Complaint filed in this action, I appear for the
Defendant, Fear Knot, Inc., and confess judgment in favor of the Plaintiff, PR Real
Estate, LLC, and Home Elite, Ltd., as Tenants in Common, C/O Pintzuk Brown Realty
Group, and against the Defendant, Fear Knot, Inc., and assess damages in the amount
of $54,945.84.
ANDERSO LL C.
By:
(L-NN,
Frank G. urphy, Esquire
Dated: August q, 2014 Arthur R. Armstrong, Esquire
Judgmen ntere s e
Office o the Prothonotary
a �
e IL l 0 yg
ANDERSON KILL P.C.
BY: Frank G. Murphy,
y ,squire AUG 9 AIj 1a. 4
Arthur R. Armstrong, Esquire
PA I.D. Nos. 65886; 203816 CU,'*1PERL,4N 1 COUNT,'
,3'
1600 Market Street, Suite 2500 PEWjs YUVA til A
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 n '
Jenkintown, PA 19046 NO.
Plaintiff,
V.
FEAR KNOT, INC.
4700 Westport Dr.
Mechanicsburg, PA 17055
Defendant.
COMPLAINT FOR CONFESSION OF JUDGMENT
UNDER PENNSYLVANIA RULES OF CIVIL PROCEDURE 2950, ET SEQ.
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 for Confession of Judgment pursuant to
Pennsylvania Rules of Civil Procedure 2950 et seq., 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, Fear Knot, Inc. ("Defendant") is, upon information and belief, a
Pennsylvania corporation, with a place of business located at 4700 Westport Drive,
Mechanicsburg, Pennsylvania 17055.
COUNT
FOR JUDGMENT OF MONEY (DEBT OWED)
Pa.R.C.P. 2950 et seq.
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 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
8. Under the Assignment, Defendant obtained all the rights and assumed all
of the obligations of Z's Karate Studio, LLC, under the Lease. See Assignment at¶ 2.
9. The Lease term was extended, and Defendant continued to occupy the
Property until December 2012, at which time Defendant abandoned and allegedly
surrendered the Premises.
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10. At the time Defendant 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."
11. 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."
12. To date, Defendant has continued its failure and refusal to pay the rent
due.
13. The Lease contains a Confession of Judgment clause and as a result of
Defendant's aforesaid default and breach under the Lease, Plaintiff is authorized to
Confess Judgment against Defendant for the total amount owed under the Lease.
14. The Assignment also contains a Confession of Judgment clause and as a
result of Defendant's aforesaid default and breach under the Lease, Plaintiff is
authorized to Confess Judgment against Defendant for the total amount owed under the
Lease.
15. Under the terms of the Assignment and the Lease, if Plaintiff engages an
attorney to represent it, Defendant will pay such amounts incurred by Plaintiff, including
Plaintiff's attorneys' fees and legal expenses. See Assignment at% 12; Lease at%T 47,
68.
16. Pursuant to the Lease, Defendant 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.
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17. As of December, 2014, the amount due and owing by Defendant for
unpaid rent under the Lease is $54,945.84. See Account History.
18. Judgment is not being entered by confession against a natural person in
connection with a consumer credit transaction.
19. No judgment has been entered against the Defendant on the Lease in any
jurisdiction.
20. Plaintiff is the current holder of the Lease.
21. The warrant of attorney is less than ten (10) years old.
WHEREFORE, Plaintiff hereby demands judgment by confession be entered in
its favor and against Defendant in the amount of$54,945.84, plus attorneys' fees, as
authorized by the confession of judgment/warrant of attorney clause appearing in the
attached Lease and Assignment, together with such other and further relief as the Court
may deem proper.
ANDERSON KILL B.C.
By: _ X�
Frank & Murphy, Esquire
Arthur R. Armstrong, Esquire
PA I.D. Nos. 65886; 203816
1600 Market Street, Suite 2500
Dated: August1�, 2014 Philadelphia, PA 19103
(267) 216-2700
fmurphy@andersonkill.com
aarmstrong@andersonkill.com
Attorneys for Plaintiff
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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 ) e
Title:
Dated:
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.
FEAR KNOT, INC.
4700 Westport Dr.
Mechanicsburg, PA 17055
Defendant.
PRAECIPE FOR ASSESSMENT OF DAMAGES AND JUDGMENT BY
CONFESSION FOR MONEY PURSUANT TO PA.R.C.P. 2951 ET SEQ.
TO THE OFFICE OF PROTHONOTARY:
Pursuant to the authority contained in the warrant of attorney, the original or a
copy of which is attached to the Complaint filed in this action, I appear for the
Defendant, Fear Knot, Inc., and confess judgment in favor of the Plaintiff, PR Real
Estate, LLC, and Home Elite, Ltd., as Tenants in Common, C/O Pintzuk Brown Realty
Group, and against the Defendant, Fear Knot, Inc., and assess damages in the amount
of $54,945.84.
ANDERSON LL .C.
By:
r/ Frank G. Murphy, Esquire
/dl
Dated: August , 2014 Arthur R. Armstrong, Esquire
Judgment Entered as Above
Office of the Prothonotary
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Ema. HIBIT A
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 months 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%
Lease 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
LL j
This Agreement is made on April",2007
BETWEEN
PR REAL ESTATE,LLC&HOME ELITE,LTD,AS TENANTS IN COMMON
residing or located at
C/o Pint aik 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 Term 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 carry 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 'TINTZUK-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 Premises 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 thereot 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 fire 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) In 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 Is."The Tenant has inspected the Leased Premises and agr=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 dest<uction 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 unproper 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 municipal 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-Liability 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 failure,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,intemrption of or failure,beyond the control of the Landlord,of
any services to be firmished 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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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 attomment
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) If 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 Teriant has this day deposited with the Landlord the sum as shown in Article 14 of the
Basic Lease Provisions as security for the payment of the rent hereunder and the full and faithful perfomiance 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
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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
thereafter,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 terrnimte. 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
perfommance of any conditions and covenants herein contained, or should the Tenant be evicted by summary
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,re-enter 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 rents 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 making 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 ancars 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 rents,if any,received by the
Landlord during the remainder of the unexpired tern 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 Default.If 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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the Landlord may,if the Landlord so elects,at any time thereafter,terminate this lease and the term hereof,upon giving
to the Tenant or to any trustee,receiver,assignee or other person in charge of or acting as custodian of the assets or
property of the Tenant, five days notice in writing, of the Landlord's intention so to do. Upon the giving of such
notice,this lease and the term hereof shall end on the date fixed in such notice as if the said date was the date originally
fixed in this lease for the expiration hereof,and the Landlord shall have the right to remove all persons,goods,fixtures
and chattels therefrom,by force or otherwise,without liability for damages.
28. Removal of Tenant's Property. Any equipment; fixtures, goods or other property of the Tenant, not
removed by the Tenant upon the termination of this lease,or upon any quitting,vacating or abandonment of the Leased
Premises by the Tenant,or upon the Tenant's eviction,shall be considered as abandoned and the Landlord shall have
the right,without any notice to the Tenant,to sell or otherwise dispose of the same,at the expense of the Tenant
29. Reimbursement of Landlord. If the Tenant shall fail or refirse to comply with and pefarm any
conditions and covenants of the within lease,the Landlord may,if the Landlord so elects,carry out and perform such
conditions and covenants,at the cost and expense of the Tenant, and the said cost and expense shall be payable on
demand,or at the option of the Landlord shall be added to the installment of rent due immediately thereafter but in no
case later than one month after such demand,whichever occurs sooner,and shall be due and payable as such. This
remedy shall be in addition to such other remedies as the Landlord may have hereunder by reason of the breach by the
Tenant of any of the covenants and conditions in this lease contained
30. Non-Performance by Landlord. This lease and the obligation of the Tenant to pay the rent hereunder and to
comply with time covenants and conditions hereof,shall not be affected,curtailed,impaired or excused because of the
Landlord's inability to supply any service or material called for herein, by reason of any rule, order,regulation or
preemption by any governmental entity,authority,department,agency or subdivision or for any delay which may arise
by reason of negotiations for the adjustment of any fire or other casualty loss or because of stakes or other labor trouble
or for any cause beyond the control of the Landlord unless such causes the constructive eviction of Tenant,lasting more
than two(2)weeks,in which case the Rent shall abate proportionally..
31. Validity of Lease.The terns,conditions,covenants and provisions of this lease shall be deemed to be severable.
If any clause or provision herein contained shall be adjudged to be invalid or unenforceable by a court of competent
jurisdiction or by operation of any applicable law,it shall not affect the validity of any other clause or provision herein,
but such other clauses or provision shall remain in full force and effect
32. Non-Waiver by Landlord. The various rights, remedies, options and elections of the Landlord,
expressed herein,are cumulative,and the failure of the Landlord to enforce strict performance by the Tenant of the
conditions and covenants of this lease or to exercise any election or option or to resort or have recourse to any remedy
herein conferred or the acceptance by the Landlord of any installment of rent after any breach by the Tenant,in any one
or more instances,shall not be construed or deemed to be a waiver or a relinquishment for the future by the Landlord of
any such conditions and covenants,options,elections or remedies,but he same shall continue in full force and effect
33. Notices. All notices required under the terms of this lease shall be given and shall be deemed delivered 2 days
after mailing such notices by certified or registered mail,return receipt requested, to the address of the parties as
shown at the head of this lease,or to such other address as may be designated in writing,which notice of change of
address shall be given in the same manner,one day after sending by overnight courier,or upon hand delivery in each
case that the recipient or recipients'agent has signed for such
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34. Title and Quiet Enjoyment. The Landlord covenants and represents that the Landlord is the owner of
the Leased Premises herein leased and has the right and authority to enter into,execute and deliver this lease;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 in Exhibit "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 ContractThis 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 tears 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 sought in any
invalid clause,by conforming the said clause with the provisions of the statutes or the regulations of any governmental
agency in such case made and provided as if the particular provisions of the applicable statutes or regulations were set
forth herein at length.
38. Number and Gender. In all references herein to any parties,persons,entities or corporations the
use of any particular gender or the plural or singular number is intended to include the appropriate gender or number
as the text of the within instrument may 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,
which are from time to time open for joint use by the tenants of Shopping Center or by the public,
including driveways, truckways, delivery passages, walkways, concourses, malls, planted areas,
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 Center is
operated, managed or maintained in common with other property or serves additional property, in which
event Tenant's Share may be that percentage of a common cost which the Rentable Area of the Premises
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 by
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 aggregate;
(b) Deleted (c) If applicable, insurance protecting against liability under Worker's Compensation Laws
with limits at least 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 Tenant's expense; (ii) 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.
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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) incurred 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, or (e) or for any cause or
reason whatsoever arising out of or by reason of the occupancy or business of 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 or liens to be satisfied and
discharged of record together with any lien claims that may have been filed. 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 term 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 apartments or lodging
rooms or for the conduct of any manufacturing business; (v) use the Premises for or conduct therein
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 prices; (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 parking 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
i
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 terms of this Lease, and in
particular,the financial terms. In no event will Tenant disclose such terms 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, if such
relocation cannot be accomplished to the sole, yet reasonable satisfaction of Tenant within 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 Iess 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 orwillful 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 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 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 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 1XMTED 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 WANES 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 LE IITATION 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(I) 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. )&
(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: t
Title:
H0
By:
Name:
Title:
Tenant:
Z's Karate Studio,LLC
By: --
Name: Micheal Zm c
Title: Member
r
By.—/)"' r I,, • .
Name Catherine
Title: Member
25
EXHIBIT"A"
PROPERTY
[ATTACH SHOPPING CENTER SITE PLAN]
26
Exhibit
9 10 11 12.13 14 15.16 17 18 1'9•.2D 21.22
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EXHIBIT"A-T"
PREMISES
[ATTACH PLAN SHOWING
PREMISES BY DIAGONAL LINES)
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Exhibit A-1
U 501 011
Suite 1546
4,000 SF o
a
CD
EXHIBIT"B°
Landlord's Work
Space to be delivered in AS-IS,WHERE-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
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EXHIBIT"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 borne 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 pennit, 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
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EXHIBIT"F"
ITTU TTIES
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-z
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EXHIBIT"G"
SIGN CRITERIA
INTENTIONALLY LEFT BLANK
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EXHIBIT"H"
FORM OF GUARANTY
Michael D.and Catherine M.Zrncic
SHALL GUARANTEE THE OBLIGATIONS CONTEMPLATED IN THE LEASE OF WHICH
THIS EXHIBIT H IS A PART. ANY FINANCIAL OBLIGATIONS WITH RESPECT TO THIS
LEASE SHALL BE THE FINANCIAL OBLIGATIONS OF MICHAEL D AND CATHERINE M
ZRNCIC.
Michael D d C therine .Zmcic
I-2
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EXHIBIT B
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 legally 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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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 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 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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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(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 TRIS 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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05/07/2009 13:02 7175919822
PAGE 06
R4
k'71 '.NESS WHEREOF, the parties)lave caused thisAsci
Lease Agreement as of the da y gnr:zent and A.s3utnptrgn of
} and year set forth above.
ASSIGNORS:
•f
Michael Zmci uarantor
C herine Zrncic, antor
Z's Kara a Studio,LLC
$Y.
Me: C:a`f1�e n W1. 2nn a c-
Ale: 0c,--nee
ASSIGN
K Wilkes,Guazancor c
Fear knot, C.
By:
N ue:
Title:
LANDLORD:
FR REAL ESTATE, LLC ANIS HOME
ELITE, LTD, AS TENANT'S IN
COMMON
eY ----�--
Naztae: S c,.-� 61 M,-L `7'c t C
Title:
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EXHIBIT C
Unpaid Charges Page 1 of 2
PM 1anayemer7t
Date: 4/18/2014
Tenant Unpaid Charges
Code t0000238 Property ceast Lease From 7/1/2007
Name Z'a Karate Studlo, 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 Chargel 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) 1,166.00 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
1Q/11/2011 Late Fees, 10%of$14851.64 1,485.161 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 1,754.021 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) 1,166.001 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,t:22031621
9/11/2012 Late Fees, 10% of$22846.79 2,284.68 45,022.28204051
https://www.yardiaspla5.com/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
2,607.62 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 51,925.66Ej2EO9028
1/11/2013 Late Fees, 10%of$30201.84 3,020.18
54,945.842476
https://www.yardiaspIa5.com/20220pintzuk/reports/Unpaid_Charges.asp?hTent--2052&Re... 4/18/2014
EXHIBIT D
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 MAILIRRR 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.
Verly y r
Frank G. Murphy
Enclosure
cc: Landlord
New York, NY 0 Ventura, CA ■ Stamford, CT ■Washington, DC IN Newark, NJ 0 Philadelphia, PA
Unpaid Charges
Page 1 of 2
PM�anagemen(
Date:4/18/2014
• Tenant Unpaid Charges
Code t00 0238 Property ceast Lease From 7/1/2007
Name Z'a 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)8029600 Phvne(H)-
Date Des....;.— n Charge Payment Balance Chg 0
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) 1,166,00 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 161296,23 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 18188fi02
1/11/2012 Late Fees, 109'a 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 Pees, 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 1 5118
5/1/2012 CAM (05/2012) 1,166,00 33,676.43 196023
6/1/2012 CAM (06/2012) 1,166,00 34,842.43 192_648
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 2,19S.061 41,571,60 2012251
9/1/2012 CAN(09/2012) 1,166.00 42,737.60 Nall 2
9/11/2012 Late Fees, 10%of$22846.79 2,284.68 45,022.28 204251
https://www.yardiuspia5.com/20220pintzuk/reports/Unpaid_ChargCs.aSp?hTent--2052&Re.,, 4/18/2014
Unpaid Charges
Page 2 of 2
10/1/2012 CAM (10/2012) 1,166.00
10/11/2012 Late Fees, 10%of$26076.22 2 507 fit 46,188.28 205158
48,795.90
11/1/2012 CAM (11/2012) 1,165.00 E
12/1/2012 CAM (12/2012) 49,961.90,12 7257
1,165.00 517.90209027
12/1/2012 RENT(12/2012). 2,053.4311,265,67 51,925.552Q 028
1/11/2013 Late Fees, 10%of$30201.84 3 020
54,945-841212476
https://www.yardiaspla5.com/20220pintzuk/reports/Unpaid—Charges,asp?bTent=2052&Re... 4/18/2014
ANDERSON KILL P.C.
1600 MARKET STREET, SUITE 2500m PHILADELPHIA, PA 19103 Attorneys and Counselors at Law
TELEPHONE:267-216-2700■FAX: 215-568-4573
www.andersonkfil.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
4 South Market Street Keith Wilkes
Suite 101 4 South Market Street
Elizabethtown, PA 17022 Suite 101
Attn: Keith Wilkes Elizabethtown, PA 17022
RE: Assignment and Assumption of Lease Agreement("Lease" date
2009, property located at East Gate Sho ) d May 7,
Mechanicsburg, PA (°Premises") ppmg Center, Suites 15 and 16,'
Dear Mr. Wilkes:
Thank you for your letter of May 16, 2014 responding to Landlord's De
The Spreadsheet 1 provided to you is Landlord's normal and customaryme Demand for Rent.
track of individual Lessee's credits and debits concerning a leased property.
method for keeping
Spreadsheet was prepared in the normal course of business. Accordingly, its ofclear
The
YOU mean by "no credible evidence" was presented concerning the amounts Landlord
due. With all due respect, not clear what
p , you are capable of confirming almost all the data Landlord
presented in the Spreadsheet. Since you have not disputed any of the balances show
Presenting me with any evidence that you did in fact pay rent or other charges that wee by
properly credited on the Spreadsheet, I reject your contention that any further supporta not
necessary to establish Landlord's claim. is
Accordingly, please remit fulla
to
specifically what charges you dispute accompanied iLadlord immediately and/or explainy payment for the undisputed charges.
Your failure to do,so may result in the Landlord pursuing any and all remedies .
Landlord under the Lease, as amended, and Pennsylvania law. available to
Please be guided accordingly,
Very truly yo rs
rank G. Murphy
cc: Landlord
New York, NY ■ Ventura, CA ■ Stamford, CT ■Washington, DC ■ Newark, NJ ■ Philadelphia, PA
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, / y
V.
FEAR KNOT, INC.
4700 Westport Dr.
Mechanicsburg, PA 17055
Defendant.
CERTIFICATION OF ADDRESSES
Frank G. Murphy, Esquire, certifies, to the best of his knowledge, information,
and belief, that the address of Plaintiff is 491 Old York Road, Suite 200, Jenkintown, PA
19046; and the last known address of Fear Knot, Inc., is 4700 Westport Drive,
Mechanicsburg, PA 17055.
ANDERSON I P.C.
By:
Frank G. Murphy, squire
Dated: August , 2014 Arthur R. Armstrong, Esquire
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
V.
FEAR KNOT, INC.
4700 Westport Dr.
Mechanicsburg, PA 17055
Defendant.
AFFIDAVIT
STATE OF PENNSYLVANIA
ss.
COUNTY OF MONTGOMERY
I, Scott G. Homel, being duly sworn according to law, depose and state that I am
2of 2 �, ���7 ; that I am authorized to make this affidavit
on behalf of Plaintiff; that the facts set forth in the Complaint in Confession of Judgment
are true and correct to the best of my knowledge, information, and belief; and, that the
Exhibits attached to the Complaint in Confession of Judgment are true and correct
copies of the originals.
f Scott G. HM
l
Title:
Sworn to and subscribed before
me this 1 (-ON day of August, 2014
Notary Public
NOTARIAL SEAL
Elizabeth N Tellado
NOTARY PUBLIC
Twp of Montgomery,Montgomery County
My Commission Expires 04115/2015
2
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.
/V-
���/ �`I--�/U
Plaintiff,
V.
FEAR KNOT, INC.
4700 Westport Dr.
Mechanicsburg, PA 17055
Defendant.
AFFIDAVIT OF NONAPPLICABILITY OF GOODS AND SERVICES INSTALLMENT
SALES ACT AND AFFIDAVIT OF NON-CONSUMER CREDIT TRANSACTION AND
NON-RESIDENTIAL LEASE
STATE OF PENNSYLVANIA
ss.
COUNTY OF MONTGOMERY
I, Scott G. Homel, being duly sworn according to law, depose and state that I am
�rs�c/r0/ of ; that I am authorized to make this affidavit
on behalf of Plaintiffs; that the Confession of Judgment does not arise out of a retail
installment sale, contract or account, as defined under the Goods and Services
Installment Sales Act, 69 P.S. §1101, et seg.; that the Confession of Judgment is not
being entered against natural person(s) in connection with a "consumer credit
transaction" as that term is defined in Pa.R.C.P. 2950 (as amended); that the
Confession of Judgment is not being entered in connection with a residential lease; and,
that the foregoing facts are true and correct to the best of my knowledge, information,
and belief. -�
Sm.
Title:
Sworn to and subscribed before
me this t 1'�" day of August, 2014
'Notary Public
=Montgom",
SEAL
Tellado
UBLIC
ontgomery Countyires 0411512015
- 2 -
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.
FEAR KNOT, INC.
4700 Westport Dr.
Mechanicsburg, PA 17055
Defendant.
AFFIDAVIT OF DEFAULT
STATE OF PENNSYLVANIA
SS.
COUNTY OF MONTGOMERY
I, Scott G. Homel, being duly sworn according to law, depose and state that I am
W,,jl�4/ of ez X70 ; that I am authorized to make this affidavit on
behalf of Plaintiff; that Defendant entered into the Assignment and Assumption of Lease
Agreement (as defined in the Complaint for Confession of Judgment filed in the within
action), a true and correct copy of which is attached to the Complaint; and, that
Defendant is in default under the Lease.
Sco4omTitl
Sworn to and subscribed before
me this d( ► day of August, 2014
otary Public
NOTARIAL SEAL
Elizabeth N Teilado
NOTARY PUBLIC
T"Of Mentpomery,Montgomery County
��1 Expires 04/15/201b
2
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.
FEAR KNOT, INC.
4700 Westport Dr.
Mechanicsburg, PA 17055
Defendant.
AFFIDAVIT OF BUSINESS TRANSACTION
STATE OF PENNSYLVANIA
SS.
COUNTY OF MONTGOMERY
I, Scott G. Homel, being duly sworn according to law, depose and state that I am
elf ,71 of Zlh I-IV ; that I am authorized to make this affidavit
on behalf of Plaintiff; and, that the transaction upon which Judgment is being entered by
Confession was a business and commercial transaction.
Scott G. omel
Title:
Sworn to and subscribed before
me this A day of August, 2014
(-'� -
Notary Public
E
=SEAL
2
--OF#ryI
ANDERSON KILL P.C. ~' i hE 1' tO T HOW0 Tyr y
BY: Frank G. Murphy, Esquire 20,14 AUG 19 Apt 10. 1.,
Arthur R. Armstrong, Esquire
PA I.D. Nos. 65886; 203816 CO NERD' U COMT,�
1600 Market Street, Suite 2500 PENtiSYLVANIA
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 1 `�
Jenkintown, PA 19046 NO.
Plaintiff,
V.
FEAR KNOT, INC.
4700 Westport Dr.
Mechanicsburg, PA 17055
Defendant.
NOTICE UNDER RULE 2958.1
OF JUDGMENT AND EXECUTION THEREON
---------------
NOTICE OF DEFENDANTS' RIGHTS
To Defendant: Fear Knot, Inc.
4700 Westport Drive
Mechanicsburg, PA 17055
A judgment in the amount of $54,945.84, together with interest accruing after the
date of judgment, until the date the judgment is paid, and costs, has been entered
against you and in favor of Plaintiff, without any prior notice or hearing based on a
confession of judgment contained in a written agreement or other paper allegedly
signed by you. The sheriff may take your money or other property to pay the judgment
at any time after thirty (30) days after the date on which this notice is served on you.
You may have legal rights to defeat the judgment or to prevent your money or
property from being taken. YOU MUST FILE A PETITION SEEKING RELIEF FROM
THE JUDGMENT AND PRESENT IT TO A JUDGE WITHIN THIRTY (30) DAYS
AFTER THE DATE ON WHICH THIS NOTICE IS SERVED ON YOU OR YOU MAY
LOSE YOUR RIGHTS.
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 INFORMATION ABOUT 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 REDUCED FEE OR NO FEE.
Lawyers' Referral Service
32 South Bedford Street
Carlisle, PA 17013
Telephone (717) 249-3166
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
Dated: August ' 2014
Attorneys for Plaintiff
- 2 -
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.
FEAR KNOT, INC.
4700 Westport Dr.
Mechanicsburg, PA 17055
Defendant.
NOTICE UNDER 42 PA. C.S.A. 4 2737.1
To: Fear Knot, Inc.
4700 Westport Drive
Mechanicsburg, PA 17055
A judgment in the amount of $54,945.84 has been entered against you and in
favor of the Plaintiff without any prior notice or hearing based on a confession of
judgment contained in a written agreement or other paper allegedly signed by you for
the leased premises:
East Gate Shopping Center, Suites 15 and 16, Mechanicsburg,
Cumberland County, Pennsylvania
42 Pa. C.S.A. § 2737 states in part as follows:
A debtor who has been incorrectly identified and had a
confession or judgment entered against him may petition the
1
court for costs and reasonable attorney fees as determined by
the court.
The written instructions regarding the procedure to follow to strike the judgments are not
prescribed in detail. For this reason, you should contact an attorney for assistance.
However, you are advised that Pa. R.C.P. 2959, provides as follows:
Striking Off or Opening Judgment; Pleadings; Procedure
(a)(1) Relief from a judgment by confession shall be sought by
petition. Except as provided in subparagraph (2), all grounds for relief
whether to strike off the judgment or to open it must be asserted in a
single petition. The petition may be filed in the county in which the
judgment was originally entered, in any county which the judgment has
been transferred or in any other county in which the sheriff has
received a writ of execution directed to the sheriff to enforce the
judgment
(2) The ground that the waiver of the due process rights of
notice and hearing was not voluntary, intelligent and knowing shall be
raised only
(i) in support of a further request for a stay of execution
where the court has been stayed execution despite
the timely filing of a petition for relief from the
judgment and the presentation of prima facie
evidence of a defense; and
(ii) as provided by Rule [of Civil Procedure] 2958.3 or
Rule 2973.3.
(3) If written notice is served upon the petitioner pursuant to
Rule [of Civil Procedure] 2956.1(c)(2)or Rule [of Civil Procedure]
2973.1(c), the petition shall be filed within thirty days after such
service. Unless the Defendant can demonstrate that there were
compelling reasons for the delay, a petition not timely filed shall be
denied.
(b) If the petition states prima facie grounds for relief the court shall
issue a rule to show cause and may grant a stay of proceedings. After
being served with a copy of the petition the Plaintiff shall file an answer
on or before the return day of the rule. The return day of the rule shall
be fixed by the court by local rule or special order.
(c) A party waives all defenses and objections which are not included
in the petition or answer.
2
(d) The petition and the rule to show cause and the answer shall be
served as provided in Rule [of Civil Procedure] 440.
(e) The Court shall dispose of the rule on petition and answer, and on
any testimony, depositions, admissions and other evidence. The court
for cause shown may stay proceedings on the petition insofar as it
seeks to open the judgment pending disposition of the application to
strike off the judgment. If evidence is produced which in a jury trial
would require the issues to be submitted to the jury the court shall
open judgment.
(f) The lien of the judgment or of any levy or attachment shall be
preserved while the proceedings to strike off or open the judgment are
pending.
(g)(1) A judgment shall not be stricken or opened because of a
creditor's failure to provide a debtor with instructions imposed by an
existing statute, if any, regarding procedures to follow to strike a
judgment or regarding any rights available to an incorrectly identified
debtor.
(2) Subdivision (g)(1) shall apply to (1) judgments entered prior to
the effective date of subdivision (g) which have not been stricken or
opened as of the effective date and (2) judgments entered on or after
the effective date.
YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IT YOU DO
NOT HAVE A LAWYER OR CANNOT AFFORD ONE, GO TO OR TELEPHONE THE
OFFICE SET FORTH BELOW. THIS OFFICE CAN PROVIDE YOU WITH
INFORMATION 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 REDUCED FEE OR NO FEE.
Lawyers' Referral Service
32 South Bedford Street
Carlisle, PA 17013
Telephone (717) 249-3166
ANDERSON KI L P.C.
By:
Frank G. Murph , Esquire
Dated: Auguste, 2014 Arthur R. Armstrong, Esquire
Attorneys for Plaintiff
3
ANDERSON KILL P.C. "; Fcrt7TP0 '
BY: Frank G. Murphy, Esquire Z619
� t' t a
Arthur R. Armstrong, EsquireF
PA I.D. Nos. 65886; 203816 CUMBERLAND
1600 Market Street, Suite 2500 PE'VPiS 1'LV4NIAt' �
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 1 D l
Jenkintown, PA 19046 NO. I
Plaintiff,
V.
FEAR KNOT, INC.
4700 Westport Dr.
Mechanicsburg, PA 17055
Defendant.
ENTRY OF APPEARANCE
TO THE OFFICE OF THE PROTHONOTARY:
Kindly enter our appearance as attorney for the Plaintiff, PR Real Estate, LLC,
and Home Elite, Ltd., as Tenants in Common, C/O Pintzuk Brown Realty Group, in the
above-entitled matter.
ANDERSO IL P.C.
By:
Frank G. Murphy, Esquire
Dated: August �T, 2014 Arthur R. Armstrong, Esquire
ANDERSON KILL P.C. � � r ' 6
BY: Frank G. Murphy, Esquire AUG
Arthur R. Armstrong, Esquire 9 ' �/0: .
G,9
PA I.D. Nos. 65886; 203816 E RI ,�, , ��ldq Cp�f.l`
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. 1q, VqL01
Plaintiff,
V.
FEAR KNOT, INC.
4700 Westport Dr.
Mechanicsburg, PA 17055
Defendant.
ENTRY OF APPEARANCE
TO THE OFFICE OF THE PROTHONOTARY:
Kindly enter our appearance for the Defendant, Fear Knot, Inc., on whose behalf
I confess judgment for money in the sum of$54,945.84.
ANDERSON KIL P.C.
By:
` Frank G. Murphy, Esquire
Dated: August`, 2014 Arthur R. Armstrong, Esquire
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.
FEAR KNOT, INC.
4700 Westport Dr.
Mechanicsburg, PA 17055
Defendant.
RULE 236 NOTICE
NOTICE IS GIVEN THAT A JUDGMENT IN THE ABOVE CAPTIONED MATT R
HAS BEEN ENTERED AGAINST YOU. j
tA .
PROTHONOTARY blictI14
IF YOU HAVE ANY QUESTIONS CONCERNING THE ABOVE, PLEASE
CONTACT:
7ank
ON ILL P.C.
BY:
. Murphy, E .
Arthur R. Armstrong, Esq.
Attorney ID Nos. 65886; 203816
1600 Market Street, Suite 2500
Philadelphia, PA 19103
267-216-2700
fmurphy@andersonkill.com
aarmstrong@andersonkill.com
Attorneys for Plaintiffs
Ronny R Anderson
Sheriff
Jody S Smith
Chief Deputy
Richard W Stewart
Solicitor
SHERIFF'S OFFICE OF CUMBERLAND COUNTY
t.
r i H':: t'Rt) T I'1ONO al
2011i SEP -2 PM 3:56
CUMBERLAND COUNTY
PENNSYLVANIA
PR Real Estate LLC
vs.
Fear Knot, Inc.
Case Number
2014-4901
SHERIFF'S RETURN OF SERVICE
08/22/2014 03:36 PM - Deputy Shawn Harrison, being duly sworn according to law, served the re :uested Complaint
in Confession of Judgment by handing a true copy to a person representin• thems- v s to be Chris
Keller, Assistant Instructor, who accepted as "Adult Person in Charge" fo;� K� ot, II c. at 4700
Westport Drive, Suite 900, Lower Allen, Mechanicsburg, PA 17055.
N HAR SON, DEPUTY
SHERIFF COST: $39.30 SO ANSWERS,
August 25, 2014
(c) CoumvSuite Sheriff, 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 — 4901 Civil
HOME ELITE, LTD., AS TENANTS :
IN COMMON, C/O PINTZUK :
BROWN REALTY GROUP :
491 Old York Road, Suite 200 •
. c-)
Jenkintown, PA 19046 .• -0 --
M C°
Plaintiffs : r-rl
-,,-n-
r-=
v. <cj
(2)
FEAR KNOT, INC.
4700 Westport Drive •
Mechanicsburg, PA 17055
Defendant CIVIL ACTION — LAW
cf)
rn
co
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, Fear Knot, Inc.
Date:
Keith E. Kendall, Esq.
Attorney for Defendant
PA Attorney ID No. 42910
SCARING' & SCARING', P.C.
2000 Linglestown Road
Suite 106
Harrisburg, PA 17110
(717) 657-7770
(717) 657-7797 (FAX)
keith@scaringilaw.corn
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
ij
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 •."
PRO I
13 1-1 SEP 22 AM 11
UMBERL AND 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.
FEAR KNOT, INC.,
Defendant
No. 14 -4901 -CIVIL
JURY TRIAL DEMANDED
PETITION TO OPEN JUDGMENT BY CONFESSION
COMES NOW Petitioner, Defendant Fear Knot, Inc., through its attorneys, Scaringi &
Scaringi, P.C., pursuant to Rule 2959 of the Pennsylvania Rules of Civil Procedure, and
respectfully represents:
1. Plaintiffs, PR Real Estate, LLC and Home Elite, Ltd., tenants in common
(hereinafter "Landlord") are landlords under a lease (hereinafter the "Lease"), dated April, 2007,
attached hereto as Exhibit "A," originally with Z's Karate Studio, LLC ("Z's Karate Studio") as
lessee; and an assignment and assumption of lease dated May 7, 2009 with Z's Karate Studio,
1
Michael Zrncic and Catherine Zmcic, Assignors, and Fear Knot, Inc. ("Fear Knot") and Keith
Wilkes, Assignees, attached hereto as Exhibit "B," hereinafter the "Assumption."
2. The leasehold premises were Suites 15 and 16 in a commercial plaza known as
East Gate Shopping Center, formerly located at the intersection of Simpson Ferry Road and
Sheely Lane in Mechanicsburg, Cumberland County, PA. See Shopping Center site plan,
attached hereto as Exhibit "C."
3. Defendant and Petitioner, Fear Knot is a Pennsylvania corporation having its
office and principal place of business at 4 South Market Street, Suite 101, Elizabethtown,
Lancaster County, PA 17022.
4. On or about May 7, 2009 Fear Knot bought the assets of Z's Karate Studio and
assumed the obligations of Z's Karate Studio under the Lease dated April, 2007 between
Landlord and Z's Karate Studio.
Agreement for reduced rent
5. By December, 2009 Fear Knot's business had been suffering because of the
economic downturn in the United States.
6. On December 7, 2009 Fear Knot president Keith Wilkes addressed a letter to the
Landlord, 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 "D."
7. 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 hereto as Exhibit "E."
2
8. 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.
9. 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 "F."
10. Fear Knot paid thrice -monthly installments of $775.75 from February, 2010
through December, 2011, without objection or complaint by the Landlord.
11. On July 15, 2010 Mr. Wilkes again addressed a letter to the Landlord, attached
hereto as Exhibit "G," requesting a six-month extension of the parties' rent reduction
arrangement.
12. After Mr. Wilkes's July 15, 2010 letter, the Landlord expressed no objection or
complaint regarding continuation of the rent reduction arrangement.
13. 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.
14. The Landlord made no complaint or objection to the payments made by Fear Knot
between January, 2012 and September, 2012 and in November, 2012.
15. 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,
and as further demonstrated by the Landlord's chart of Tenant Unpaid Charges. See Exhibit "E"
hereto.
3
16. 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
17. 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.
18. 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.
19. 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.
20. 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" hereto, at page 13, paragraph 34.
21. 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.
22. 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.
4
23. On Many occasions when Mr. Wilkes's wife came into work in the afternoon
there were children sleeping in the van.
24. 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 paragraph 34 of the Lease. See Exhibit "A" hereto, at
page 13, paragraph 34.
25. 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.
26. 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, and contributing to Fear Knot's loss of business.
27. 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.
28. 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.
29. 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.
30. 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.
5
31. 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.
32. 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.
33. 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.
34. At times, kids from the Islamic center would enter the school during classes,
disturbing the classes.
35. 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
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
36. 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.
37. The persistence of these conditions caused Fear Knot to lose customers and
income.
38. 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
6
the peaceful and quiet enjoyment of its leasehold premises and cost it valuable customers and
income, all in violation of paragraph 34 of the Lease. See Exhibit "A" hereto, at page 13,
paragraph 34.
39. 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.
40. It appeared to Mrs. Wilkes that the dumpster had not been emptied in months.
41. Trash was also strewn in front of and in the back area of the Plaza.
42. Mrs. Wilkes later discovered that the trash collector had stopped removing the
trash from the plaza because the Landlord had stopped paying its bills.
43. Allowing this condition to persist constituted a violation of the Lease on the
Landlord's part.
44. 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.
45. 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.
46. A State Farm Insurance agency also closed during Fear Knot's tenancy.
47. 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.
7
48. 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.
49. 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."
50. As of December 1, 2012, Fear Knot had vacated the leasehold premises in the
plaza, as its lease had terminated.
Dispute as to amount owing to Landlord
51. The Landlord claims that Fear Knot owes the amounts listed on the Landlord's
chart of Tenant Unpaid Charges," attached Exhibit "E" hereto.
52. Fear Knot contends that the Landlord's allowance of the nuisance conditions
described above to persist on the plaza premises entitles Fear Knot to an abatement of the rent
which Fear Knot paid.
53. Fear Knot further contends that it is 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.
8
54. 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
clean and orderly condition.
Justification for opening judgment by confession
55. Fear Knot submits that the facts outlined above would require the issues in this
case to be submitted to a jury under Rule 2959(e). Consequently, the Court should open the
judgment which the Landlord entered by confession in this action.
56. Fear Knot further submits that, inasmuch as the within Petition states prima facie
grounds for relief under Rule 2959(b), the Court should enter a Rule to Show Cause and stay the
proceedings in this action.
WHEREFORE, Defendant -Petitioner Fear Knot, Inc. respectfully requests the Court to
enter a Rule to Show Cause why the judgment by confession entered by the Landlord in this
action should not be opened; to enter a stay of proceedings in this action, pending disposition of
Fear Knot's Petition to Open the Judgment by Confession; and to enter an order that the
judgment by confession be opened.
September 22, 2014
Respectfully submitted,
C. Caffrey, Esq.
PA ID # 42667
Attorney for Petitioner
Scaringi & Scaringi, P.C.
2000 Linglestown Road, Suite 106
Harrisburg, PA 1711
717-657-7770 (phone)
717-657-7797 (fax)
brian@scaringilaw.com
9
VERIFICATION
I hereby verify that the facts set forth are true and correct to the best of my knowledge,
information and belief, and that as President of Petitioner, Fear Knot, Inc. I am authorized to
make this verification on its behalf. I understand that false statements herein are subject to the
penalties of 18 Pa.C.S. Section 4904 relating to unsworn falsification to authorities.
,2 2_,DP(
IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PA
PR REAL ESTATE, LLC, AND
HOME ELITE, LTD., AS
TENANTS IN COMMON,
Plaintiffs,
vs.
FEAR KNOT, INC.,
Defendant
No. 14 -4901 -CIVIL
JURY TRIAL DEMANDED
CERTIFICATE OF SERVICE
nd
I, Sherry A. Clark, Paralegal, do hereby certify that on this, the day of September,
2014, I served the foregoing Petition To Open Judgment By Confession in the above -captioned
matter upon the following individuals by first class mail, postage prepaid, addressed as follows:
glad
Dat
Frank G. Murphy, Esquire
Arthur R. Armstrong, Esquire
Anderson Kill, P.C.
1600 Market Street, Suite 2500
Philadelphia, PA 19103
EXHIBIT A
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
Leased Premises or Premises:
(1) Term:
(2)
(3)
(4)
(5)
(6)
Tenant: Z's Karate Studio, LLC
EAST GATE SHOPPING CENTER
MECHANICSBURG, PA
SUITES 15 & 16
approx. Five (5) Years (plus.2 months rent-free)
Date for Delivery of Possession: Upon Execution (+/-'April 26, 2007)
Rent Commencement Date:
Beginning of Term:
Lease Expiration Date:
Lease Year & Base Rent:
Lease Year 1
Lease Year 2
Lease Year 3
Lease Year 4
Lease Year 5
(7) Option Term:
$22,000.00
$22,660.00
$23,339.80
$24,039.99
$24,761.19
(8) Option Term Base Rent:
(9) Gross Square Feet of
the Leased Premises:
(10) Gross Square Feet of
Building(s) in the Center
(the "Rentable Area"):
Tenant's Proportionate Share:
Lease Template PA
60 days after Possession (+/- June 26, 2007)
Upon Possession (+/- April 26, 2007)
June 30, 2012
per year
per year
per year
per year
per year
($1,833.33/mo.)
($1,888.33/mo.)
($1,944.98/mo.)
($2,003.33/mo.)
($2,063 .43/mo.)
Two (2), Three (3)Year Options to renew with 90 Days prior
written notice; Time is of the essence.
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.
4,000 square feet
36,000 square feet
(12) Additional Rent:
(13) Tenant's Trade Name:
(14) Security Deposit:
(15) Use:
Tenants full Proportionate Share: CAM, Taxes, Insurance.
First Year CTI = $1,166.00 Per Month
Z's Karate Studio
$1,833.33
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
LL.
This Agreement is made on April_, 2007
BETWEEN
PR REAL ESTATE, LLC & HOME ELITE, LTD, AS TENANTS IN COMMON
residing or located at
c/o Pintzuk Brown Realty Group, Inc, 49101d 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 known 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 Term 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 carry 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 Artide 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 checic
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. Repaixs/Alterations.The Tenant has examined the Leased Premises 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. Atthe
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 proauptly 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 policiesof
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 accesswaysor 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 fire 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 shallproceed 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 renewalsthereof 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) In 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 Is." 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 nnt,luvements 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 Lent 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; ofte,'ng 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 .destmction-of.or.damage of any kind whatsoever to the said premises, caused by the carelessness,
negligence or unproper 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
uvements 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 municipal 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 -1" labially 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 failure, 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, sprinlder, 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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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 attomment.
(c) If 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
Basic 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 hereo 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
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Tenant shall, on demand, promptly leslore said security to its original amount Liability to repay said security to the
Tenant shall nm 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 tine form and in
insurance companies reasonably acceptable to the Landlord, the Landlord may, if the Landlord so elects at any time
thereafter, terminate this lease and the term hereof•; upon giving to the Tenant sixty (60) days notice in writing of the
Landlord's intentionso tn: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 summary
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, re-enter 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 rents 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 making 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 rents, 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 Default.If an Event of Default has occurred or if this Iease 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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the Landlord may, if the Landlord so elects, at any time thereafter, terminate this lease and the term hereof; upon giving
to the Tenant or to any trustee, receiver, assignee or other person in charge of or acting as custodian of the assets or
property of the Tenant, five days notice in writing, of the Landlord's intention so to do. Upon the giving of such
notice, this lease and the term hereof shall end on the date fixed in such notice as if the said date was the date originally
fixed in this lease for the expiration hereof and the Landlord shall have the right to remove all persons, goods, fixtures
and chattels therefrom, by force or otherwise, without liability for damages.
28. Removal of Tenant's Property. Any equipment, fixtures, goods or other property of the Tenant, not
removed by the Tenant upon the termination of this lease, or upon any quitting vacating or abandonment of the Leased
Premises by the Tenant, or upon the Tenant's eviction, shall be considered as abandoned and the Landlord shall have
the right, without any notice to the Tenant, to sell or otherwise dispose of the same, at the expense of the Tenant
29. Reimbursement of Landlord. If the Tenant shall fail or refuse to comply with and perform any
conditions and covenants of the within lease, the Landlord may, if the Landlord so elects, carry out and perform such
conditions and covenants, at the cost and expense of the Tenant, and the said cost and expense shall .be payable_ on
demand, or at the option -of the Landlord shall be added to the installment of rcrut due immediately thereafter but in no
case later than one month after such demand, whichever occurs sooner, and shall be due and payable as such. This
remedy shall be in addition to such other remedies as the Landlord may have hereunder by reason of the breach by the
Tenant of any of the covenants and conditions in this lease contained.
30. Non -Performance by Landlord. This lease and the obligation of the Tenant to pay the rent hereunder and to
comply with the covenants and conditions hereof, shall not be affected, curtailed, impaired or excused because of the
Landlord's inability to supply any service or material called for herein, by reason of any rule, order, regulation or
preemption by any governmental entity, authority, department; agency or subdivision or for any delay which may arise
by reason of negotiations for the adjustment of any fa a or other casualty loss or because of strikes or other labor trouble
or for any cause beyond the control of the Landlord unless such causes the constructive eviction of Tenant, lasting more
than two (2) weeks, in which case the Rent shall abate proportionally..
31. Validity of Lease.The terms, conditions, covenants and provisions of this lease shall be deemed to be severable.
If any clause or provision herein contained shall be adjudged to be invalid or unenforceable by a court of competent
jurisdiction or by operation of any applicable law, it shall not affect the validity of any other clan use or provision herein,
but such other clauses or provision shall remain in full force and effect
32. Non -Waiver by Landlord. The various rights, remedies, options and elections of the Landlord,
expressed herein, are cumulative, and the failure of the Landlord to enforce strict performance by the Tenant of the
conditions and covenants of this lease or to exercise any election or option or to resort or have recourse to any remedy
herein conferred or the acceptance by the Landlord of any installment of rent after any breach by the Tenant, in any one
or more instances, shall not be construed or deemed to be a waiver or a relinquishment for the future by the Landlord of
any such conditions and covenants, options, elections or remedies, but he same shall continue in full force and effect
33. Notices. All notices required under the terms of this lease shall be given and shall be deemed delivered 2 days
after mailing such notices by certified or registered mail, return receipt requested, to the address of the parties as
shown at the head of this lmse, or to such other address as may be designated in writing, which notice of change of
address shall be given in the same manner, one day after sending by overnight courier, or upon hand delivery in each
case that the recipient or recipients' agent has signed for such.
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34. Title and Quiet Enjoyment The Landlord covenants and represents that the Landlord is the owner of
the Leased Premises herein leased and has the right and authority to enter into, execute and deliver this lease; 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 in Exhibit "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 ContractThis 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 terms 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 sought in any
invalid clause, by conforming the said clause with the provisions of the statutes or the regulations of any governmental
agency in such case made and provided as if the particular provisions of the applicable statutes or regulations were set
foLth herein at length.
38. Number and Gender. In all references herein to any parties, persons, entities or corporations the
use of any particular gender or the plural or singular number is intended to include the appropriate gender or number
as the text of the within instrument may 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,
which are from time to time open for joint use . by the tenants of Shopping Center or by the public,
including driveways, truckways, delivery passages, walkways, concourses, malls, planted areas,
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 notseparatelymetered 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 Center is
operated, managed or maintained in common with other property or serves additional property, in which
event Tenant's Share may be that percentage of a common cost which the Rentable Area of the Premises
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 by
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 aggregate;
(b) Deleted (c) If applicable, insurance protecting against liability under Worker's Compensation Laws
with limits at least 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 Tenant's expense; (ii) 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.
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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) incurred 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, or (e) or for any cause or
reason whatsoever arising out of or by reason of the occupancy or business of 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) • UnIess 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 or liens to be satisfied and
discharged of record together with any Iien claims that may have been filed. 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
additionto 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 term 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 forany 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. hi 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 bankruptcyorof 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 Plcurisesas regular living quarters, sleeping apartments or lodging
rooms or for the conduct of any manufacturing business; (v) use the Premises for or conduct therein
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 prices; (ii) will keep all mechanical apparatus free of
vibration �r 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 parking 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
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 terms of this Lease, and in
particular, the financial terms. In no event will Tenant disclose such terms 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, if such
relocation cannot be accomplished to the sole, yet reasonable satisfaction of Tenant within 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 ofentity, 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 inteLpietation, 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.
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 attorn to such new
owner.
67. Limitation of Liability_ Landlord's obligations and Iiability 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 1111
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 1'Ht•; PAYMENT OF RENT RESERVED OR
PAYABLE HEREUNDER OR IN 1'HE PAYMENT OF ANY O TILER 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 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 1'HE 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, 'nu 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 LIMITATION 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 (I) 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, EHL
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.
69. Tenant's Gross Sales/ Sales Reports and Records. Deleted
70. Percentage Rent. Intentionally Left Blank
(Initials)
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 WITEREOF, 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.
Witnessed or Attested By:
25
Landlord:
PR REAL ESTE, LLC
By:
Name: ,i-'4'
Title:
By:
Name:
Title:
Tenant
Z's Karate Studio, LLC
By:
Name: Micheal an
Title: Member
By:
Name Catherine
Title. Member
EXHIBIT B
ASSIGNMENT AND ASSUMPTION OF LEASE AGREEMENT
This Assignment and Assumption of Lease Agreement (the "Assignment") is
made the -7 day of May, 2009, by and between Z's Karate Studio, LLC, a Pennsylvania
limited liability company, Michael Zrncic Member and Guarantor and Catherine Zrncic
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 legally 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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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 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 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 THF 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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ASSUMPTION OF LEASE AGREEMENT Zs Karate to Fear Knot FINAL.doc
5/7/2009 12:40 PMD:Wear Knot on Server\FearKnot Biz and
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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 (I) 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
TEE 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 TIALS IN THE SPACE PROVIDED BELOW.
(Initials)
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legal\Expansion\Mechanicsburg\ASSIGNMENT AND ASSUMPTION OF LEASE AGREEMENT Zs
Karate to Fear Knot FINAL.doc
5/7/2009 12:40 PM
05/07/2069 13:02 7175919822
PAGE 66
IN WITNESS WHEREOF, the parties have caused this Assignment and Assumption of
Lease Agreement as of the day and year set forth above.
ASSIGNORS:
Z's Kara e Studio, LLC
By
We: oc,,,:ler
Fear Kno
By: ,
Nike:
Title:
LANDLORD:
PR REAL ESTA'1.Z, LLC AND HOME
ELITE, LTD, AS TENANTS IN
COMMON
Title: 4,1,71,1,E
i';;K:;de\A[3( riv.AirtN f.60,: 5
5/7!2.OVY 1,2:53 PM( :11+iu.,te0.s(i};[si1MENT she
;7/7/2x9 1'1:51; Pk1
EXHIBIT C
9
10
11
12.13
14
17
98
19.20
21.22
7
<:....
f£AR KNOT `�1.
Martial Arts �-
4 South Market Street, Suite 101
•
Elizabethtown, Pennsylvania 1702217171361-97813
iearknotiearthlink.nel www.fearknot-martialarls.com
Member, Notional Association of Professional Marital Artists
12:'7/09
PintzukBrown
491 Old York Road,
Suite200
Jenkintown, PA 19046
As with manyother industries and businesses, we have come under financial stress during this economic climate. Recently
the National Association ofProfessional'Martial Artists saw more than 25% of a mailing returned as undeliverable. Most
of those were likely martial arts schools that closed. Our situation, while not yet dire, is worrying and we are attempting to
keep ourselves out ofa serious financial situation while weatheringthis downturn. We feel confident that we will survive this
situation but must ask for yourhelp.
The main issue that we are currently faced with is a lack of new enrollments. This accounts for significant cash -Sow in our
company. Despite aggressive marketing new enrollments are down almost 75% from two years ago and we have been
enrolling fewer new members this year with 5 locations than we did last year with 3 locations. Additionally, the growth of
our two new schools has been far below ourprevious openings. Mechanicsburg and Lititz havetaken 4 months to achieve
the student level that our other three schools achieved in less than 6 weeks. The majority ofprospective members that we
speak with cite the uncertainty of the economy as their main reason for not enrolling at this time.
During the last few months, wehavereducedourexpenses as much as possible including payroll. Our stafflevel is currently
at the minimum to service our members and teach classes. At this time we are forced to focus on our last possible expense,
rent on our locations. We are currently unable to make the full, lump -sum lease payments on our
locations. In light of our situation, we request that you please accept 3 equal payments. We have enclosed postdated
checks to cover our obligation. At this time we feel that spreading out this expense is necessary to continuing to meet our
other operating expenses and to stay afloat. We will keep you apprised ofour situation as necessary.
Please feel free to contact us ifyou have any questions or would like to offer us any other options regarding this matter.
Sincerely,
Keith Wilkes
President
EXHIBIT E
Unpaid Charges
PM aanagement
Date: 4/10/2014
Tenant Unpaid Charges
Page 1 of 2
Code t0000238 Property _cajl Lease From 7/1/2007
Name Z'a Karate Studio, LLC Unit 15-16 Lease To 6/30/2012
Address 907 Lancelot Ave. Status Past Move In 4/26/2007
City St. Zip
Mechanicsburg, PA 17050
Rent 2063.43 Move Out 11/30/2012
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)
r
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)
1,166.00
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
t
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
1Q/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
CAM (03/2012)
1,843.64,
1,166.00
26,222.29
27,388.29
191580
3/1/2012
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
19764-8-
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
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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
48,795.90
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
3,020.18
54,945.84
212476
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EXHIB
TF.
l EAR KNOT
Martial Arts
4 South Market Street, Suite 101
Elizabethtown, Pennsylvania 17022 (717) 361-9788
fearknot®earthlink.rel www.feorknot-martialarts.com
Member, National Assoclaf on of Professlortai Martial Artists
1/4/10
Pintzuk Brown
491 Old York Road,
Suite 200
Jenkintown, PA 19046
This letter is to update you on our current situation in regard to our letter dated December 7, 2009. Attached is a copyof
that letter for you to reference.
As stated in the previous letter, our current financial situation has been caused bya dramatic drop in new enrollments. Our
Mechanicsburg and Lititz schools each have fewer than 40 students since opening in May and July respectively. Each of'
our other three schools achieved that munber within two months ofopening. We had a total of 8 new enrollments between
all five schools in December. This equates to a drop of several thousand dollars in revenue.
At this time we must take another step to renin solvent We are currently unable to make the frill leasepayments on all our
locations. In light of our situation, we request that you please accept a temporary (6 -month) 25% reduction in our lease
payments. At this time we see lowering this expense as a necessary move to stay afloat We also ask that you continue to
accept the rent in three post-dated installments.
Again, it is with deep regret that Imust ask this of you. The alternative is that we default on one or two of our leases. That
would not benefit any ofus. FEAR KNOT is our livelyhood and sole source of income. Failure ofthe company is not an
option for us.
Please feel free to contact us ifyou have any questions or would like to offer us any other options regarding this matter. We
will keep you apprised of= situation as necessary.
Sinoerely,
KeithWilkes
President
EXHIBIT G
f£AR KNOTco"t ,d1.
Martial Arts `E
4 South Market Street, Suite 101
Elizabethtown, Pennsylvania 17022 (717)361-9788
feurknoteearthilnk.ne1 www,feorknot-marllalarts.com
Member, Notional Association of Profession! Martial Artists
7/15/10
Pintuk Brown
49; Old York Road,
Suite 200
Jenkintown, PA 19046
As promised in my letter to you in January, I am sending you this update on the current status of our business.
While we have maintained our position in regard to the overall number of members throughout our locations, our new
enrollment situation has not improved. For example, we had a total of 6 enrollments in May for all five schools. Most
people are still unsure of the economic outlook and are not yet comfortable in spending their money. What has kept us
afloat to this point is our ability to retain our current members at a much higher rate than the industry standard.
To put our situation in perspective, our total new students enrolled the second halfof 2009 was 104 company wide. Our
new students for the first halfof this year was 99. In light of the continued poor numbers for the first half ofthe year, I am
asinng for an additional 6 month extension ofour current react reduction arrangement. Again, please feel free to contact us
if you have any questions or would like to offer us any other options regarding this matter. We will also keep you apprised
ofour situation as necessary.
Sincerely,
Keith Wakes
President
PR REAL ESTATE, LLC, AND
HOME ELITE, LTD., AS
TENANTS IN COMMON,
PLAINTIFF
V.
FEAR KNOT, INC.,
DEFENDANT
: IN THE COURT OF COMMON PLEAS OF
: CUMBERLAND COUNTY, PENNSYLVANIA
: NO. 14-4901 CIVIL
IN RE: PETITION TO OPEN JUDGMENT BY CONFESSION
ORDER OF COURT
AND NOW, this 25th day of September, 2014, upon consideration of Fear Knot,
Inc.'s Petition to Open Judgment by Confession,
IT IS HEREBY ORDERED AND DIRECTED that:
1. A Rule is issued upon the Plaintiff to show cause why the relief requested by
the Defendant should not be granted.
2. Plaintiff shall file an Answer to the Petition on or before October 24, 2014.
3. If no answer to the Rule to show cause is filed by the required date, the relief
requested by Defendant shall be granted upon the Court's receipt of a Motion
requesting that the Rule be made absolute. If the Plaintiff files an Answer to
this Rule to show cause, the Court will determine if a hearing on the any
disputed facts and/or argument is required.
4. The Prothonotary is directed to forward Plaintiff's Answer to this Court.
5. Notice of the entry of this Order shall be provided to the Plaintiff by the
Defendant, Fear Knot, Inc.
IT IS FURTHER ORDERED AND DIRECTED that all other proceedings in this
action are hereby stayed pending disposition of the Petition to Open Judgment by
Confession.
By the Court,
M. L. Ebert, Jr., 1 J.
c-)
—Frank G. Murphy, Esquire
.--Arthur R. Armstrong, Esquire
..-Anderson Kill, P.C.
1600 Market Street, Suite 2500
Philadelphia, PA 19103
Counsel for Plaintiffs
Brian C. Caffrey, Esquire
Scaringi & Scaringi, P.C.
2000 Linglestown Road, Suite 106
Harrisburg, PA 17110
Counsel for Defendants
bas e,01) 14,14 1,74