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Home My WebLink About01-4151 Johnson, Duffie, Stewart & Weidner By: David J. Lanza I.D. No. 55782 301 Market Street P. O. Box 109 Lemoyne, Pennsylvania 17043-0109 (717) 761-4540 Attorneys for Plaintiff LMRES REAL ESTATE ADVISERS, INC., tJa EASTERN RETAIL HOLDINGS, L.P., Plaintiff IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA 01- J. /~-} II.: f) NO. Lf ~ v. CIVIL ACTION - LAW IN EJECTMENT PORT DARE, individually and Va PETLAND, Defendants NOTICE UNDER RULE 2958.1 OF JUDGMENT AND EXECUTION THEREON TO: PORT DARE, individually and t/a PETLAND 6520 Carlisle Pike, Store 0-1 Mechanicsburg, Pennsylvania 17055 -- A judgment in the amount of $191,159.93 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. 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 YOUR OR YOU MAY LOSE YOUR RIGHTS. YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER OR CANNOT AFFORD ONE, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW TO FIND OUT WHERE YOU CAN GET LEGAL HELP. Court Administrator Cumberland County Courthouse One Courthouse Square Carlisle, Pennsylvania 17013 (717) 240-6200 :147686 JOHNSON. 91JFIE. STEWART & WEIDNER BY: jtcJ, L David J. Lanza r~.-: Johnson, Duffie, Stewart & Weidner By: David J. Lanza J.D. No. 55782 301 Market Street P. O. Box 109 Lemoyne, Pennsylvania 17043-0109 (717) 761-4540 Attorneys for Plaintiff Plaintiff IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 0, 4'/1)-/ (l ~ LMRES REAL ESTATE ADVISERS, INC., tJa EASTERN RETAIL HOLDINGS, L.P., v. CIVIL ACTION - LAW IN EJECTMENT PORT DARE, individually and tJa PETLAND, Defendants TO: PORT DARE, individually and Va PETLAND 6520 Carlisle Pike, Store 0-1 Mechanicsburg, Pennsylvania 17055 You are hereby notified that on . 2001, judgment by confession was entered against you in the sum of $191 ,159.93, and for possession of the real estate at 6520 Carlisle Pike, Store 0-1, Mechanicsburg, Pennsylvania 17055, in the above-captioned case. DATE: Prothonotary YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER OR CANNOT AFFORD ONE, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW TO FIND OUT WHERE YOU CAN GET LEGAL HELP. Court Administrator Cumberland County Courthouse One Courthouse Square Carlisle, Pennsylvania 17013 (717) 240-6200 I hereby certify that the following is the address of the Defendants stated in the certificate of residence: PORT DARE, individually and tla PETLAND 6520 Carlisle Pike, Store 0-1 Mechanicsburg, PA 17055 1 I rJd~ Attorney for Plaintiff :147686 Johnson, Duffie, Stewart & Weidner By: David J. Lanza I.D. No. 55782 301 Market Street P. O. Box 109 Lemoyne, Pennsylvania 17043-0109 (717) 761-4540 Attorneys for Plaintiff LMRES REAL ESTATE ADVISERS, INC., tJa EASTERN RETAIL HOLDINGS, L.P., Plaintiff IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNS'(LVANIA NO. 01 ~ 4i5"f (1u~ v. CIVIL ACTION - LAW IN EJECTMENT PORT DARE, individually and tJa PETLAND, Defendants NOTICE UNDER RULE 2973.2 OF JUDGMENT AND EXECUTION TO: PORT DARE, individually and Va PETLAND 6520 Carlisle Pike, Store 0-1 Mechanicsburg, Pennsylvania 17055 A judgment for possession of real property has been entered against you and in favor of the Plaintiff without prior notice and hearing based on a confession of judgment contained in a promissory note or other document allegedly executed by you. The Sheriff may remove you from the property 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 being removed from the property. ANY PETITION SEEKING RELIEF FROM THE JUDGMENT MUST BE FILED 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 OR CANNOT AFFORD ONE, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW TO FIND OUT WHERE YOU CAN GET LEGAL HELP. Court Administrator Cumberland County Courthouse One Courthouse Square Carlisle, Pennsylvania 17013 (717) 240-6200 :147686 JOHNSON, DU F."lo/STEWART & WEIDNER BY: .u/~ David J. Lanza 0> 8 c::3'" I-'^\ . . IV \)' ::> '> Johnson, Duffie, Stewart & Weidner By: David J. Lanza I.D. No. 55782 301 Market Street P. O. Box 109 Lemoyne, Pennsylvania 17043-0109 (717) 761-4540 Plaintiff IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA 4 '~ 1/- . - . .. NO. { (~ I (D -<4~ .. LMRES REAL ESTATE ADVISERS, INC., tJa EASTERN RETAIL HOLDINGS, L.P., v. CIVIL ACTION - LAW IN EJECTMENT PORT DARE, individually and tJa PETLAND, Defendants CONFESSION OF JUDGMENT FOR MONEY DAMAGES Pursuant to the Authority contained in the Warrant of Attorney, a copy of which is attached to the Complaint filed in this action, I appear for the Defendant and confess judgment in favor of Plaintiff and against the Defendant as follows: TOTAL $160,000.08 $ 226.50 $ 19,140.00 $ 2,690.50 $ 9.102.85 $191,159.93 Unpaid rent from June 2001 through June 2004 Past-due late fees Minimum additional charges pursuant to ~1.1 (H) from June 2001 through June 2004 Interest at 18% from July 1, 2001, through August 1, 2000 Five percent (5%) attorney fees Respectfully submitted, JOHNSON, DUFFIE, STEWART & WEIDNER By: ij/~ David J. Lanza Attorney 1.0. No. 55782 301 Market Street P.O. Box 109 Lemoyne, PA 17043-0109 Telephone (717) 761-4540 Dated: :147684 Johnson, Duffie, Stewart & Weidner By: David J. Lanza I.D. No. 55782 301 Market Street P. O. Box 109 Lemoyne, Pennsylvania 17043-0109 (717) 761-4540 LMRES REAL ESTATE ADVISERS, INC., tJa EASTERN RETAIL HOLDINGS, L.P., Plaintiff IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. v. CIVIL ACTION - LAW IN EJECTMENT PORT DARE, individually and tJa PETLAND, Defendants CONFESSION OF JUDGMENT IN EJECTMENT Pursuant to the authority contained in the warrant of attorney, a copy of which is attached to the Complaint filed in this action, I appear for the Defendant and confess Judgment in ejectment in favor of Plaintiff and against the Defendant for possession of the real property situate at 6520 Carlisle Pike, Store 0-1, Mechanicsburg, Silver Spring Township, Cumberland County, Pennsylvania 17055. Respectfully submitted, JOHNSON, DUFFIE, STEWART & WEIDNER ~ By: Dated: David J. Lanza Attorney 1.0. No. 55782 301 Market Street P.O. Box 109 Lemoyne, PA 17043-0109 Telephone (717) 761-4540 :147685 Johnson, Duffie, Stewart & Weidner By: David J. Lanza JD. No. 55782 301 Market Street P. O. Box 109 Lemoyne, Pennsylvania 17043-0109 (717) 761-4540 Attorneys for Plaintiff LMRES REAL ESTATE ADVISERS, INC., Va EASTERN RETAIL HOLDINGS, L.P., Plaintiff IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. v. CIVIL ACTION - LAW IN EJECTMENT PORT DARE, individually and tJa PETLAND, Defendants COMPLAINT PURSUANT TO Pa.R.C.P. 2951(b) and Pa.R.C.P. 2971(a) FOR CONFESSION OF JUDGMENT FOR MONEY DAMAGES AND POSSESSION AND NOW, this 5th day of July 2001, comes the Plaintiff, LMRES REAL ESTA TE ADVISERS, INC., t/a EASTERN RETAIL HOLDINGS, L.P., by and through its undersigned attorneys, Johnson, Duffie, Stewart & Weidner, and files this Complaint, and in support thereof avers as follows: 1. The Plaintiff, LMRES REAL ESTATE ADVISERS, INC., t/a EASTERN RETAIL HOLDINGS, L.P., is a Delaware limited partnership with offices and a principal place of business at 1735 Market Street, Philadelphia, Pennsylvania 19103. 2. The Defendant, PORT DARE, is an adult individual trading and doing business as PETLAND, with a place of business at 6520 Carlisle Pike, Store 0-1, Mechanicsburg, Cumberland County, Pennsylvania 17055. 3. On or about June 24, 1994, Plaintiff's predecessor and Defendant entered into an Indenture of Lease ("Lease") for the premises located at Silver Springs Commons, Store No.3, Mechanicsburg, Cumberland County, Pennsylvania, a true and correct copy of which is attached hereto as Exhibit "A." True and correct copies of assignments by which Plaintiff became entitled to enforce the Lease are attached hereto as Exhibits "B" and "C." 4. Said Lease has not been assigned by Plaintiff. ~ 5. No judgment on the Lease has been entered in any jurisdiction. COUNT I FAILURE TO PAY RENT 6. The allegations contained in paragraphs one through six above are incorporated herein by reference. 7. The aforesaid Lease requires Defendants to pay unto Plaintiff the sum of Four Thousand and 00/100 Dollars ($4,000.00) per month from 1996 through June 2002, with subsequent amounts due as set forth in S1.1 G of Exhibit "A." 8. Defendant has failed to make the required monthly rental payments from and after July 2001. 9. Defendants' June payment was late, thereby resulting in late charges pursuant to S2.1 0 in the amount of $226.50. 10. Defendant's rental payments have repeatedly been late throughout the term of this Lease. 11. Throughout the term of this Lease, Defendant has repeatedly attempted to pay his rent with checks which could not be honored by Defendant's bank. 12. As a result of Defendants' failure to make the monthly rental payments, the remaining monthly payments (through May 2004) have become immediately due and payable. 13. Pursuant to the aforesaid Lease, Defendants are required to reimburse Plaintiff for Plaintiff's "reasonable attorney fees." S14.2(A). 14. The attorney fees expected to be incurred by Plaintiff in this case amount to five percent (5%) of the balance due. 15. Pursuant to S14.2(A), Plaintiff is permitted to confess judgment for all additional charges and additional rent specified in the Lease. 16. Pursuant to S1.1(H) of the Lease, the minimum additional charges amount to Six Thousand Three Hundred Eighty and 00/100 Dollars ($6,380.00) per year. 17. Defendant, pursuant to S2.6 of the Lease, is required to provide to Plaintiff gross sales and business sales reports every month detailing Defendants' revenues from the operation of the leased premises. 18. Despite demand, Defendants have refused to provide Plaintiff with the aforesaid statements. 19. Such failure and refusal has resulted in loss of "percentage rent" to Plaintiff. 20. There is justly due and owing to the Plaintiff from the Defendants on account of the aforesaid breach the sum of One Hundred Ninety-one Thousand One Hundred Fifty-nine and 93/100 Dollars ($191,159.93), calculated as follows: TOTAL $160,000.08 $ 226.50 $ 19,140.00 $ 2,690.50 $ 9.102.85 $191,159.93 Unpaid rent from July 2001 through June 2004 Past-due late fees Minimum additional charges pursuant to S1.1 (H) from July 2001 through June 2004 Interest at 18% from July 1, 2001, through August 1, 2000 Five percent (5%) attorney fees 21. Plaintiff has demanded payment from the Defendants, but Defendants have neglected and refused, and continue to refuse, to pay the same or any part thereof. WHEREFORE, Plaintiff demands judgment against Defendants in the amount of One Hundred Ninety-one Thousand One Hundred Fifty-nine and 93/100 Dollars ($191,159.93), plus such additional sums as the Court determines are due and owing. COUNT II MISCELLANEOUS LEASE BREACHES 22. The allegations contained in paragraphs one through twenty-one above are incorporated herein by reference. 23. Plaintiff operates a family-oriented retail shopping center, leasing to a wide variety of retail tenants who provide such items as home furnishings, family-oriented merchandise, home entertainment products, banking services, restaurant facilities, and home repair products. 24. The continued viability of Plaintiff's shopping center is dependent upon the continued reputation of the shopping center as a family-friendly retail center. 25. Defendants' repeated violations of Pennsylvania's Criminal Code on the leased premises violates specific provisions of the Lease and damages the reputation of the shopping center. 26. Criminal activity on the leased premises is inconsistent with the operation of a family-friendly retail center. 27. Defendant Port Dare has violated 18 Pa.C.S.A. 95511 (a)(2.1 )(i)(A) of the Pennsylvania Criminal Code by freezing and then killing a kitten on the premises. 28. Defendant Dare has effectuated this violation of 18 Pa.C.S.A. 95511 (a)(2.1 )(i)(A) in a manner which was designed to inflict maximum suffering upon the animal and which is shocking to the sensibilities of the public and consumers in general. 29. Defendant Dare's violation of 18 Pa.C.S.A. 95511 (a)(2.1 )(i)(A) has generated a well- publicized criminal prosecution currently pending in the criminal court of Cumberland County. 30. Defendant Dare's criminal prosecution has generated widespread publicity which has damaged the reputation of the retail center. 31. Placing a live animal into a freezer for an extended period before smashing the animal's head in front of witnesses is inconsistent with the operation of a family-oriented retail center. 32. Prior to Defendant Dare's conduct in brutally killing an animal on the leased premises, Defendant conducted illegal drug trafficking activity in violation of 35 P.S. 9780-113(a)(30) and 18 Pa.C.S.A. 9903 of the Pennsylvania Criminal Code. 33. Defendant Dare arranged for deliveries of large quantities of marijuana to the leased premises so that said marijuana could be distributed throughout the Central Pennsylvania region. A true and correct copy of the grand jury presentment detailing Defendant's illegal drug trafficking activities and containing references to incidents in which Defendant used the leased premises as a drug trafficking distribution center is attached hereto as Exhibit "D." 34. Defendant's illegal trafficking activity has resulted in the execution of at least one search warrant on the leased premises by law enforcement authorities. 35. Illegal narcotics trafficking activity is inconsistent with the operation of a family-oriented retail center. 36. By virtue of Defendant Dare's illegal activity, Plaintiff is entitled to immediate possession of the aforesaid leased premises. 37. Defendant Dare's illegal activities violate SS6.2(C), 10.1, and 10.4 of the Lease. 38. Plaintiff is entitled to immediate possession of the leased premises at 6520 Carlisle Pike, Store D-1, Mechanicsburg, Silver Spring Township, Cumberland County, Pennsylvania 17055. WHEREFORE. Plaintiff demands judgment against Defendants for possession of the aforesaid leased premises. Respectfully submitted, JOHNSON, DUFFIE, STEWART & WEIDNER ~t~ By: :147556 David J. Lanza Attorney /.0. No. 55782 301 Market Street P.O. Box 109 Lemoyne, PA 17043-0109 Telephone (717) 761-4540 Attorneys for Plaintiff VERIFICATION I, JACKIE EAKIN, Regional Asset Manager of Crossgates Management, Inc., Managing Agent for LMRES Real Estate Advisers, Inc., verify that the statements made in this Complaint are true and correct to the best of my knowledge, information and belief. I understand that false statements made herein are made subject to the penalties of 18 Pa. C.S.A 94904, relating to unsworn falsification to authorities. CROSSGATES MANAGEMENT, INC., Managing Agent for LMRES REAL ESTATE ADVISERS, INC., t1a EASTERN RETAIL HOLDINGS, L.P. Date:~ By: eXhIbit A ARTICLE 21: SECTION I. Section ~.~ ~.2 1.3 ~.4 1.5 1.6 II. Section 2.1 2.2 2.3 2.4 2.5 2.6 2.7 2.8 2.9 2.10 2.11 III. Section 3.1 3.2 3.3 .- 3.4 3.5 3.6 IV. Section 4.1 4.2 4.3 V. Section 5.1 5.2 5.3 5.4 VI. Section 6.1 6.2 6.3 ) PA.~.~ SILVER SPRING COMMONS SHOPPING CENTER STORE LEASE - j.._;"-.....I"'" ....;.'_/_.l~ .~. "'~ ( '/../".' ::..... - .-- 7/1/) ;> y (7'7(..) sr~ ~A ~~~ INDEX TO LEASE PORT DARE CAPTIO -- <-6"l.0--/ /itl!../I--J-f GRANT AND BASIC TE~~................ ..... Ba sic Data................................ Construction of Demised Premises...,....... Demised Premises. . . . . . . . . . . . . . . . . . . . . . . . . . Acceptance of Demised Premises... .... ..... Term of Lease............................. Option to Extend.................. . . . . . . . . p~ . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .~ual Minimum Rent... ........ ....... ..... Commencement of Rent and Other Charges.... Taxe s ..... - . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Common Area Maintenance Charges........... Adjustment of Minimum Rent.... ... ... ...... Percentage Rent........................... Gross Sales............................... Record Keeping............................ Audi t . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . La t e Charge............................... Definition of Additional Rent. ... ......... USE OF DEMISED PREMISES....... ........ .... Tenant / s Use.............................. Continuous Operation...................... Radius of Operation....................... Ut i 1 i tie s . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Signs. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Sewer Discharge Limitation.. .............. COM:M:ON AREAS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Definition of Common Areas........ ........ Common ~xea Operating Costs... ............ Control of Common Area.................... CONSTRUCTION AND ALTERATIONS.............. Landlord's Construction... ................ Tenanr:' s F.l terations . . . . . . . . . . . . . . . . . . . . . . Builder's Risk............................ Tenant's Discharge of Liens............... MAINTENANCE AND REPAIRS................... Landlord's Obligations.................... Tenant's Obligations.. .................... Surrender of Demised Premises............. PAGE ~ 1 2 3 3 3 4 4 -4 5 5 7 7 7 8 9 10 10 10 11 11 12 12 12 13 14 14 '1 .1 ... - 14 , - ~.::;, , - -;:, ... - J,.;:' 15 15 17 17 27 17 19 ARTICLE Q;: SECTION VII. Section 7.1 7.2 7.3 7.4 7.5 7.6 7.7 7.8 VIII. Section 8.1 8.2 8.3 8.4 8.5 IX. Section 9.1 X. Section 10.1 10.2 10.3 10.~ 10.S XI. Section 11.1 XII. Section 12.1 12.2 12.3 12.4 XIII. Section 13.1 13.2 XIV. Section 14.1 14.2 14.3 14.4 14.5 14.6 XV. Section 15.1 XVI. Sect.ion 16.1 16.2 15.3 XVII. Section 17.1 '\ CAPTION PAGE INSURANCE AND INDEMNITY........... .... .... 19 Casual ty Insurance........................ 19 Waiver of Subrogation..................... 20 Increase in Fire Insurance Premiums... .... 20 Liabili ty Insurance........... . . . . . . . . . . . . 20 Business Interruption Insurance........ ...21 Indemnification of Landlord.... ........... 21 Plate Glass.................. . . . . . . . . . . . . . 21 Landlord I s Mortgagee...................... 21 SUBORDINATION, NOTICE, ESTOPPEL AND ATTORNMENT. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22 Subordination. . . . . . . . . . . . . . . . . . . . . . . . . . . .. 22 Notice to Landlord... ........... .......... 22 Estoppel Certificate...................... 23 At tornment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 23 Assignment of Rents................... . . .. 24 ASSIGNMENT AND SUBLETTING...... ........... 24 Consent Required.......................... 24 WASTE, GOVERNMENTAL AND INSURANCE REQUIREMENTS AND HAZARDOUS SUBSTANCES.. 26 Waste or Nuisance......................... 26 Insurance Requirements................ .... 26 Hazardous Substances...................... 26 Government Permits........................ 28 Survival. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 28 ADVERTISING AND PROMOTIONAL PROGRAM.... ... 28 Advertising and Promotional Program... .... 28 DESTRUCTION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29 Total or Partial Destruction.............. 29 Partial Destruction of Shopping Center.... 30 Tenant's Restoration.. ................. ... 31 Substantial Damage........................ 31 EMINENT DOMAIN... ..... .................... 31 Condemna t ion. . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 31 Restoration of Demised Premises........... 31 DEFAULT OF TENANT......................... 32 Defaul t . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32 Remedies. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 33 Additional and Percentage Rent............ 36 Guarantors. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 36 Bankruptcy or Other Default............... 36 Failure to Pay, Interest.................. 38 ACCESS BY ~LORD........................ 38 Right of Entry............................ 38 TENANT'S PROPERTY.................... . . . .. 39 Taxes on Leasehold.... .................... 39 Los s and Damage............ . . . . . . . . . . . . . .. 39 Not ice by Tenant........... . . . . . . . . . . . . . . .. 39 HOLDING OVER, SUCCESSORS.................. 39 Holding Over.. . . . . . . . . . . . . . . . . . . . . . . . . . . .. 39 ARTICLE ~ SECTION 17.2 VIII. Section 18.1 XIX Section 19.1 19.2 19.3 19.4 19.5 19.6 19.7 19.8 19.9 19.10 19.11 19.12 19.13 19.14 19.15 19.16 19.17 19.18 19.19 19.20 19.21 19.22 19.23 XX. Section 20.1 20.2 20.3 XXI Section 21.1 21.2 EXBIBITS: \ , , I CAPTION PAGE Successors and Assigns. . . . . . . . . . . . . . . . . . . . 40 QUIET ENJOYMENT........ . . . . . . . . . . . . . . . . . . . . 40 Landlord's Covenant....................... 40 MISCELLANEOUS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40 Waiver. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 40 Accord and Satisfaction............ . . . . . . . 41 No Partnership............................ 41 Force Majeure............................. 41. Landlord's Liabili ty. . . . . . . . . . . . . . . . . . . . .. 41 Notices and Payments............ . . . . . . . . . . 42 Financial Statements................ ...... 42 Guarantors. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42 Captions and Section Numbers..... ......... 42 Definitions.. . . . . . .. . . . . . . .. . . . . . . . . . . . . .. 43 Partial Invalidity........................ 43 Recording. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4: 3 Entire Agreement. .., ..... ................. 43 Survival. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 44 Applicable Law. . . . . . . . . . . . . . . . . . . . . . . . . . .. 44 Consents and Approvals.... ................ 44 . Authori ty. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 44 When Lease Becomes Effective....... .... ... 4S Interpretation. . . . . . . . . . . . . . . . . . . . . . . . . . . . 4S Brokers. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45 Landlord's Fees and Expenses....... ....... 46 Other Agreements...... ............... ..... 46 Shift Clause... . . . . . . . . . . . . . . . . . . . . . . . . . " 46 SECURITY AND RENT DEPOSITS.......... ...... 47 Amount of Security Deposit.......... ...... 47 Use and Return of Security Deposit........ 47 Ren t De po sit . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 4 8 TENANT COVENANTS, EASEMENTS.... ." ........ 48 Tenant Covenant..... ...... ........ ........ 48 Easements. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 48 A. Demised Premises B. Landlord's Work C. Percentage Rent Statement D. Rules and Regulations E. Sign Criteria F. Tenant's Work G. Guaranty Agreement . INDENTURE OF LEASE THIS nrnENTURE OF LEASE made as of the~~day Of~, 199J[, by and between the landlord named in Section 1.1( ) (hereinafter referred to as the nLandlordR) I and the tenant named in Section 1.1 (A) below (hereinafter referred to as the ("Tenant If) . WIT N E SSE T H: ARTICLE I: GRANT AND BASIC TERMS 1.1 BASIC DATA: The following sets forth basic data hereinafter referred to in this Lease, and, where appropriate, constitute def- initions of the terms hereinafter listed. A. TENANT: PORT DARE Address: 4290 WIMBLEDON DRIVE ~~ISBURGI FA 17112 B. T~~E NAME: PETLAND C. SHOPPING CENTER NAME: Silver Spring Commons D. DEMISED PREMISES: STORE#: D-1 WITH APPROX. 4,000 (501 X 80') SQ. FT. ORIGINAL TERM LENGTH: TEN (10) YRS ... ~. F. OPTION(S) & LENGTH: NONE G. MINIMUM RENT: y-~(S) 1-2 @ $3,333.33 PER MO., $40,000.00 ANNUALLY YEAR(S) 3-8 @ $4,000.00 PER MO., $48,000.00 ~~uALLY Y-~(S) 9-10 @$4,666.67 PER MO., $56,000.00 A-~ALLY H. ESTIMATED FIRST l.:.AR PROR.l\.TA CHARGES AT COMMENCEMENT OF L2ASE ( St.i"BJECT TO ADJUSTMENT OVER TERM OF THE LEASE) : (i) Taxes: $ 183.33 per mo. $2,220.00 ann. (ii) Insurance: $ 80.00 per mo. $ 960.00 aI'1-"-"1. (iii) Common Area: $ 266.67 per mo. $3,200.00 ann. Totals $ 530.00 per mo. $6,360.00 ann. Pe~centage of overall Taxes, Insurance and Common Area Maintenance Charges ("T.I.C.") payable by Tenant: * %. *~o 3E DETErtMINED IN ACCORDA-~C~ WITH SECTION 2.3 HEREOF T. PERCENTAGE RENT: '\ Years 1-2 3-8 9-10 5% over gross sales of $800,000.00 5% over gross sales of $960,000.00 5% over gross sales of $1,120,000.00 K. SECURITY DEPOSIT: $ 3,333.00 L. 1st MONTH RENT DEPOSIT: $ 3808.00 (INCLUDES T.I.C.) M. USE CLAUSE: To be used for the sale at retail of pets and related items and for no other purpose. N. GUARANTOR(S): N/A O. LANDLORD: Silver Spring Center Limited Partnership c/o ABS Development Company 333 North Main Street Hartford, CT 06117 With rent and other- payments to: Silver Spring Center Limited Partnership P.O. Box 40,000 - Dept. 660 Hartford, Connectic~t 06151-0660 P. REALTOR: N/A 1.2 CONSTRUCTION OF DEMISED PREMISES: Landlord agrees to deliver a substantially completed store space on or before July 1, 1994; provided, however that ~n the event La..TJ.dlord's 'Work is delayed or hindered by strike, casualty, fire, injunction, local governmental action, inability to secure materials, or restraint of law, unusual action of the elements, or any other cause beyond the control of Landlord, then said period shall be extended to the extent of such delays. Tenant shall have the option of cancelling and terminating this Lease by giving written notice to Landlord should Landlord fail to complete Landlord's work within the allotted time frame, including extensions. If terminated, Tenant shall have no liability to Landlord and any Security Deposit held by Landlord from Tenant shall be refunded. Tenant's sole remedy, at law or in equity, for Landlord's failure to deliver a substantially completed store space as set forth in this Section 1.2 shall be the te~ination of the Lease and Tenant hereby waives all claims for damages, including consequential and special damages, resulting from Landlord's failure to deliver the store space as aforesaid. 1.3 DEMISED PREMISES: The Landlord hereby leases to the Tenant and the Tenant hereby leases from the Landlord, upon and subject to the terms and orovisions of this Lease, the oremises (hereinafter referred to as.the "Demised Premises") descri-bed in Sect.ion 1.1(D) hereof, and as shown on Exhibit A, hereto annexed and made a part hereof, in the sho::piDg center commonly referred to as si1 ver Spring Commons (the "Shopping Center") located in the Township of Silver Spring, Cou~:y of Cumberland, Commonwealth of Pe~~sy1va~:a and more accurately described on Exhibit A-l attached hereto and made a part hereof. Excepting and reserving to the Landlord the roof and exterior walls of the building or buildings of which the Demised Premises are a part and further reserving to the Landlord the right. to place in the Demised Premises (in such manner as to reduce to a minimum the interference with t.he Tenant I s use of the Demised Premises) utility lines, pipes, and the like, to serve premises other than the Demised Premises, and to reolace and maintain and repair such utility lines, pipes and the lik~ in, over and upon the Demised Premises as may have been inst.alled in said building. 1.4 ACCEPTANCE OF DEMISED PREMISES: It is Landlord's int.ention t.o complete the Shopping Cent.er as plarll~ed. However, no rights or remedies shall accrue to Tenant from Landlord's failure to const=uct or lease any other parts of the Shopping Center or from changes in occupancy, actual or planned. Landlord reserves the right r wi thout Tenant's consent to (a) change the number, size, height (including additional stories) or locat.ion of buildings and common areas in the Shopping Center; (b) change or modify ingress and egress routes; and (cl add additional land or buildings or both to the Shopping Center. Tenant agrees t.o accept the Demised Premises "as is", without warranty or representation of any kind, express or implied, on the part of Landlord, provided Landlord substantially completes the Demised Premises substantially in conformity with the terms and conditions set for':n on Exhibit B attached hereto and made a part hereof ("Landlord's Work"). 1.5 TERM OF LEASE: TO P~VE A.~ TO HOLD the Demised Premises unto the Tenant for the term specified in Section 1.1 (E) hereof unless sooner terminated as provided herein,--ca~ng on the Commencement Date as set forth in Section 2.2 he:::eof. If the Commencement Date is other than the first - day--of the month, the first year of the lease term shall be extended to include such partial month such that the first year of the lease term shall end on the last day of the month in which the first anniversary date of the Commencement Date occurs. The parties hereto agree, upon demand made to the other, to execute a suoolemental instrument expressing the Commencement Date of the term hereof when the Commencement Date has been determined. " .\ .~ Wal-Mart St.ores, Inc. has the :::ight to expand into an area which includes the Demised P:=emises five (5) years after the opening of its store and at other times subsequent thereto. Should Wal-Mart Stores, Inc. exercise its right to expand, Landlord may terminate this lease upon six (5) months notice and Tenant. agrees to vacate the Demised Premised on or before the eXDiration of said six (6) months. All Minimum, ?ercentace and Addi~ional Rent and other charces due hereunder shall continue to accrue until such time and Tenant shall have delivered possession or the Demised -3- Premsies to Landlord in accordance with this paragraph and Section 6.3 of this Lease. 1.6 OPTION TO EXTEND: Intencionally Omitted. ARTICLE II: RENT 2.1 ANNUAL MINIMUM RENT: Tenant covenants and agrees to pay Minimum Rent in monthly installments on the first day of each month, in advance, throughout the lease term without notice, demand or offset to the Landlord at the address of Landlord as set forth in Section 1.1 (0) or at such place as the Landlord shall from time to time designate in writing. The first such payment is to be made on the Commencement Date, however, if the First Month Rent Deoosit set forth in Section 1.1 (L) hereof has been paid by Tenazit to Landlord as provided in Section 20.03 hereof, then such amount as Tenant shall have deposited will be credited by Landlord against any amouants due hereunder for Minimum Rent upon the Commencement Date. Any fractional part of a illonth shall be prorated and payable in advance. Minimum Rent is based upon store location in the Shopping Center and a general measurement of square foot.age as computed below: (A) END STORE SPACES: SIDE TO SIDE: Outside exterior wall to mid point of the adjoining neighbor~ng wall. FRONT TO REAR: From the front outside wall housing the glass store front to the rear outside wallar in the case where stores are back to back, to the mid-point of the rear wall. (B) INTERIOR STORE SPACES: SIDE TO SIDE: Interior mid-point of each side wall. FRONT TO REAR: From the front outside wall housing the glass store front to the rear outside wall or in the case where stores are back to back, to the mid-ooint of the rear wall. - Annual Minimum Rent during the original lease term is as set forth in Section 1.1 (G) and during any Option te~ as Section 1.1 (J). Tenant:' s cbl~gation to pay independent of all of the other covenants, obligations of either party to t~is Lease. set forth in Minimum Rene condit.ions is and -4- 2.2 COMMENCEMENT OF RENT AND OTHER CRA..~GES: The "Delivery of Possession" shall be the earlier of (a) the date that Tenant: obtains possession of the Demised Premises from Landlord, or (b) the date that Landlord notifies Tenant in writing that the space is substantially complete and Tenant may install his fixtures and equipment. The" Rent Commencement Date ", which establishes the date from which the term of the Lease is measured and u~on which Tenant is obligated to pay Minimum Rent and Percentage Rent, shall be ninety (90) days after Delivery of Possess~on. "Substantially complete" as used herein means the work performed by Landlord as described in Exhibit "B" has been completed with the exception of minor items which can be completed without material interference with Tenant's installation of fixtures or improvements. 2.3 TAXES: From and after the Rent Comme~cement Date, Tenant shall pay to Landlord as Additional Rent its proportionate share, expressed as a percentage as set forth in Sect~on 1.1 (H), of Real Estate Taxes, special taxes and assessmer.ts for the Shopping Center or any part thereof (as the same may be increased or diminished from time to time during the term of t~is Lease), excluding any taxes separately charged to or levied against Tenant (which Tenant shall pay 100%-) or any other tenant (whicb. Tenant shall not pay any proportion of) . Notwithstanding anything to the con=rary contained in Section 1.1(H) hereof, "Tenant's preport~onate share" is a fraction, the numerator of which is the gross leasable area of the Demised Premises and the denominator of ',.,hich :s the cross leasable area of the Shopping Center as of the =i=s~ day of e~ch applicable tax year during the term hereof, provided t~at if the taxes for the Shopping Center are increased materially because of assessment of Tenant's improvements at a higher rate than ether tenants, Tenant agrees to pay any such excess taxes as Additional Rent. Tenant shall pay such Additional Rent applicable to ~eal Estate Taxes on a monthly basis, along with the monthly Minimum Rent. Initially, such monthly payments shall be as set fort~ in Section 1.1 (H) . Tenant's proportionate share of Real Estate Taxes shall thereafter be estimated by Landlord on an ar~ual basis for each calendar year ending on December 31. Should the ac~ua~ costs of Real Estate Taxes be less than each tenant paid, the amount overpaid by the Tenant will be credited towards such ccs~s f~~ the first month of the next year or if the Tenant is term~na~i~q, a refund shall be made provided no other charges a=e outs~a~ci~g by Tenant. If Real Estate Taxes are more than Landlord's es~:ma~e, Tenant shall pay such excess within thirty (30) days 0:: :-eceiving a detailed statement from Landlord. In the event Tena~~ does not make said payment monthly, or reimburse Landlord at the e~d of any calendar year in the event of a deficiency, as afcresaid, Tenant shall be in default of this Lease. Landlord, at La~dlord' s option, may obtain separate taxable status for the ~em:5ed Premises, and in such event, Tenant shall pay 100% of s~~h ~:xes as Additional Rent. Additionally, with respect to taxes: -5- (A) RIGHT TO CONTEST ASSESSMENTS: Landlord may contest any and all Real Estate Taxes. The cost of any such contest shall be paid as Additional Rent in the same proportionate share as the Real Estate Taxes are paid and any refund or recovery shall be shared in the same proportionate manner. Tenant shall have no right to contest assessments without the orior written consent of Landlord. - (B) REAL ESTATE TAX: Real Estate Tax means: (i) any fee, license fee, license tax, business license fee, commercial rental tax levy, charge assessment, penalty or tax imposed by any taxing or judicial authority . against the Shopping Center or land upon which the Shopping Center -is located; (ii) any tax imposed upon' the Shopping Center by any state, county or local governmental authority including without limitation all school district taxes; (iii) any tax on the Landlord's right to receive, or the receipt of, rent or income from the Shopping Center or against Landlord's business of leasing the Shopping Center; (iv) any tax or charge for fire protection, st~eets, sidewalks, road maintenance, refuse or other se:rvices provided to the Shopping Center by any government agency; (v) any tax imposed upon this transaction, or based uoon a reassessment of the Shopping Center due to a-Change in ownership or transfer of all or part of Landlord's interest in the Shopping Center; and (vi) any charge or fee replacing, in whole or in part, any tax previously included within the definition of Real Estate Tax. 2 .4 COMMON AREA MAINTENANCE CRA..~GES: Commenc ing upon the Delivery of Possession and thereafter on the first of each month Tenant will pay Landlord, along with the monthly Minimum Rent payment, as Additional Rent, one-twelfth (1/12) of Tenant's proportionate share of the annual common area operating costs, as hereinafter defined. Initially, such monthly payment shall be as set forth in Section 1.1 (H) . However, if Tenant's use of the Demised Premises is directly responsible for a material increase in the Shopping Center charges for common area operating costs, Tenant shall be solely responsible for such excess cost. The common area operating costs shall thereafter be estimated by Landlord on an annual basis for each calendar year ending on December 31. Should the actual common area operating cost be less than each tenant paid, the amount overpaid by the Tenant will be credited towards common area operating costs for the first month of the next year or if the Tenant is termi~ating, a refund shall be made provided no other charges are outstanding by Tenant. If common area operating costs are more than Landlord's estimate I Te::ant shall pay such excess within thirty (30) days of receiving a detailed statement from Landlord. Failure to pay shall be a de:a~l: under this Lease. r -':)- . \ 2.5 ADJUSTMENT OF MINIMUM RENT: Intentionally Omitted 2.6 PERCENTAGE RENT: In addition to the payment of a fixed Minimum Rent, Tenant shall pay, as rent hereunder, a percentage (as set forth in Section 1.1(I) or 1.1(J) hereof, as the case may be) of Tenant's Gross Sales, as hereinafter defined, for each full or partial lease year (including any lease renewal periods) as Percentage Rent. In order to track Tenant's sales and monitor the health of the Shopping Center, Tenant shall supply Landlord, within ten (10) days after the close of each month either (1) a duplicate. of the business sales report sent to the State Tax Commission, if applicable or (2) a statement reciting Tenant's Gross Sales for such month, in the form of E)U~ibit C attached hereto, certified by Tenant or Tenant's agent as being correct. Such sales shall remain confidential to Landlord, Landlord's accountant/property manager, and Landlord's lenders and potential purchasers of the Shopping Center. The term "lease yearn as used herein, shall refer to each calendar year during the lease term, but for the first and last year of the term shall me~~ the partial year. For such partial year, the Percentage Rent breakpoint shall be computed on a pro rata basis. Should actual Gross Sales exceed the pro-rated Percentage Rent breakpoint, the difference shall be multiplied by the percent figure set forth in Section 1.1 (l), or Section 1.1(J), as the case may be, and paid to Landlord as Percentage Rent. The Tenant agrees, without notice or demand from the Landlord, within thirty (30) days after the end of each lease year or partial lease year, to cause a statement of the Gross Sales of the Tenant made at, in, on and/or from the Demised Premises for such lease year to be certified by an independent certified public accountant, or by the Chief .~inancial Officer of the Tenant and a copy of such statement certified by such accountant shall be delivered by the Tenant to the Landlord within such thirty-day period, and such statement shall be accompanied by a check of the Tenant for the Percentage Rent, if any, payable with respect to such prior lease year. Tenant's obligation to pay Percentage Rent is independent of all of the other covenants, condit.ions and obligations of either party to this Lease. All statements deliverable by the Tenant to the Landlord under this Lease shall be delivered to the place where rent is then payable, or to such other place or places as the Landlord may from time to time direct by notice to the Tenant. 2.7 GROSS SALES: As defined in this Lease, "Gross Sales" shall mean the aggregate of all gross receipts of Tenant, subtenancs or sublessees, concessionaires or licensees and any business conducted on or at the Demised Premises or through outside sales agents, regardless of whether such receipts be evidenced by check, credit, charge accounc, exchange or otherwise without reserve or deduction for '~ab,l '~'Y or fa'lurp to C011pC- (~u~ no~~;~c c~n~a;ne~ in ~his _ ...... .....__"- _ _ _ ___ l.. ~..... .........~..;._.. >...J.........,j",J, ...... _. \....- Section 2.7 shall be construed as granti::g Tenant. the right to -7- assign or sublet the Demised Premises or to utilize the Demised Premises for any use not otherwise allowable under other provisions of this Lease). Gross Sales shall include those amounts received from any transaction, including, but not limited to, the amounts received from the sale or rental of goods, wares, merchandise and shelf and/or floor space, gift certificates and for services and repairs performed on or from the Demised Premises, together with the amount of all orders taken or received at the Demised Premises, whether such orders be filled therefrom or elsewhere as well as all receipts which Tenant in the normal and customary course of its operations would credit or attribute to its business on the Demised Premises, and shall include sales made by or from vending devices in the Demised Premises (but nothing contained herein shall give Tenant the right to install mechanical or vending machines in the Demised Premises). Gross Sales shall also include, but not be limited to, all deposits not refunded to purchasers and all sales to employees or agents of Tenant. Gross Sales shall not include (or if included shall be deducted therefrom) cash or credit refunds upon gross receipts where the merchandise sold or some part of it is returned by the purchaser to the Tenant; and the amount of any sales, use, or gross receipts tax imposed by any Federal, state, municipal or other governmental authority directly on sales and collec~ed from customers, provided that the amount thereof is billed separately to the customer and is required to be paid by Tenant to such Govern- mental authority. The sales price of merchandise returned by customers for exchange shall be included in Gross Sales. No franchise or capital stock tax and no inheritance, income, occupation, or similar tax or license fee based upon income, sales or profits, as such, shall be deducted from Gross Sales. 2.8 RECORD KEEPING: For the purpose of ascertaining the amount payable as Percentage Rent, Tenant agrees to prepare, maintain, and preserve on the Demised Premises, for a period of not less than three (3) years following the end of each lease year or partial lease year; all pertinent original sales records showing inventories and receipts of merchandise at the Demised ?remises; and the gross income, sales and occupation tax returns with respect to said lease years and partial lease years for Tenant and all other persons or firms conducting any business upon the Demised Premises. Pertinent original sales records shall i:1clude: (a) cash register tapes, including tapes from temporary regiscers; (b) serially numbered sales slips; (c) the originals of all mail orders at and to the Demised Premises; (d) the oriainal records of all telephone orders at and to the Demised Premises; (e) settlement report sheets of transactions with subtenants, concessionaires and licensees; (f) the original records showing that mer:::hanc::!.se returned by customers was purchased at the Demised Premises by such customers; (g) memorandum receipts or other records of merc~a:1dise taken out on approval; (h) such other sales records, if a~v, which would normally be examined by an independent auditor p~r~ua~t to -8- - generally accepted auditing standards in performing an audit of Tenant's sales; and (i) the records soecified in (a) to (h) above from subtenants, assignees, concessi;naires or licenses. In the event of any dispute as to the amount of Percentage Rent due, Tenant agrees to keep all the foregoing records until such dispute is resolved. 2.9 AUDIT: The acceptance by Landlord of payments of Percentage Rent shall be without prejudice to Landlord's right to an examina- tion of Tenant's books and records of its Gross Sales and inventories of merchandise on the Demised Premises for the purpose of verification. Landlord, its accountants or other represent- atives, may at any reasonable time, upon ten (10) days prior written notice to Tenant, cause a comolete audit to be made of Tenant's entire business affairs, tax returns and records relating to the Demised Premises for the period covered by any statement issued by Tenant. If such audit shall disclose a liability for rent of two oercent (2%) or more in excess of the rentals heretofore computed and paid by Tenant for such period, or if Tenant's records are not adequate or the records are not made available within ten (10) days after written notice to Tenant to permit said accountants to dete:!.Uline Gross Sales, Tenant shall promptly pay to Landlord the reasonable cost of said audit in addition to the deficiency and Late Charge, which deficiency and Late Charge shall be payable in any event, and, in the event of willful underreporting, in addition to all other remedies available at law or in equity or pursuant to other provisions of this Lease, Landlord at Landlord's option may terminate this Lease upon five (5) days notice to Tenant of Landlord's election to do so. Any information obtained by Landlord as a result of such audit shall not be made public except to the extent necessary to enforce this Lease and to provide information .to Landlord's lender(s) or potential purchasers of the Shopping Cen~er. 2.10 LATE CHARGE: If Tenant fails to pay any Additional Rent, Minimum Rent, or Percentage Rent within ten (10) days of the due date, Tenant shall pay to Landlord a nLate Chargen of five cents ($0.05) for each dollar so overdue to defray the cost of collection and administration. 2.11 DEFINITION OF ADDITIONAL RENT: Without limiting any other provision of this Lease, it is expressly understood and agreed that all ?ercentage Rent, the Tenant's propor~ionate share of Taxes, Common Area Maintenance Charges and all other charges which the Tenant is required to pay hereunder, including, without limitation, the Promotional Charge, together with all interest and penalties that may accrue thereon, shall be deemed to be Additional (but not Minimum) Rent, and in the event of non-payment thereof by the Tenant, the Landlord shall have all of the richts and remedies with respect thereto as would accrue to the Landl~rd for non-payment of Minimum Rent. Tenant's obligation to pay Additional Rent is -9- independent of all of the other covenants, obligations of either party to this Lease. condit.ions and ARTICLE III: USE OF DEMISED PREMISES 3.1 TENANT'S USE: Tenant shall use the Demised Premises solely for the purposes set forth in Section 1.1 (M) and for no other business or purpose without prior consent from Landlord. (A) No auction, fire or bankr~ptcy sales may be conducted wi thin the Demised Premises without the previous consent of the Landlord. (B) The Tenant shall not use the malls or sidewalks adjacent to the Demised Premises or the recessed vestibules, if any, of the Demised Premises for business purposes (including, without limitation, the distribution of handbills or advertising of any type) without the previous consent of the Landlord. (C) The Tenant shall keep the display windows of the Demised Premises clean and shall keep the same electrically lighted during such periods of time as the Shopping Center shall be open and, in addition, during such other periods of time as shall be determined by the Landlord, provided windows throughout a major portion of the Shopping Center are kept lighted during such additional periods, and for this purpose shall install and maintain a mechanical time-clock. (D) The Tenant shall at all times keep the Demised Premises fully and adequately stocked and fixtured. The Tenant shall devote the maximum possible floor area of the Demised Premises to selling space (consistent with the permitted uses he:::-eunder), and shall not use any portion of the Demised Premises for storage or other serJices, exceot as is consistent with its ooerations in the Demised Premises. - (E) The Tenant shall at all times fully and adequately heat and/or air-condition (as the circumstances require) the Demised Premises. (F) The Tenant agrees that it and its employees and others connected with the Tenant's operations at the Demised Premises will abide by all reasonable rules and regulations f:::-om time to time established by the Landlord by written notice to the Tenant with respect tc such Shopping Cent.er, a current copy of which are attached hereto as Exhibit D, but which are subject to change at Landlord's discretion. 3.2 CONTINUOUS OPERATION: Tenant. shall continuously operate ane keep open to the public the entire Demised Premises in good fait~ fer t.he durat.ion 0: the lease ter~ from Monday through Sa:urda: -lO - ) during the hours of 10:00 AM to 6:00 PM, and such other hours as a majority of the other tenants of the Shopping Center shall remain open. Tenant will carry a complete stock of merchandise, maintain an adequate staff including a qualified store manager headquartered at the Demised Premises to accommodate customers and at all times promote the business through advertising and display of merchandise so as to produce the maximum Gross Sales possible. Tenant may open at earlier hours or close at a later time and open on Sunday, providing such opening is not in violation of any local govern- mental ordinance or law. Tenant may also close on maj or nationally recognized religious holidays and for periodic inventory. It is important to the success of a Shopping Center that all tenants have uniform days and hours of operation. Tenant acknowledges that this obligation is a material and significant inducement to the Landlord to enter into this Lease and Tenant agrees to abide by the hours and days of opening specified herein or be in violation of this Lease. 3.3 RADIUS OF OPERATION: If Tenant, or any other person, firm or corporation which controls or is controlled by Tenant, or any franchise or licensee of any of them, opens a competing or similar business, either directly or indirectly operating within a. radius of two (2) miles from the Shopping Center, during the term of this Lease, the competing or similar business's Gross Sales (as defined in this Lease) shall be included in the Gross Sales made from the Demised Premises for purposes of computing Percentage Rent due hereunder. This radius clause does not apply to businesses of Tenant currently open and in operation within said radius at the time this Lease is executed. 3.4 UTILITIES: Tenant agrees to pay for Tenant's use of all of its requirements for utilities, including but not limited to, electricity, gas, sewer, heat, water and all other utilities and taxes or charges for such utility services which are used by or attributable to Tenant's Demised Premises from the date of Delivery of Possession of the Demised Premises by Landlord to Tenant. Where Landlord furnishes one or more of the utility services, Tenant shall accept and use same, paying all reasonable charges therefor. Land:ord's charges shall not exceed the rates charged by local utili~y companies to retail customers for the same or similar ser~ices. !~ no event will Landlord be liable for an interruption or failure in the supply of any such utilities or services supplied by Landlord because of repairs or improvements or for any cause beyond Land:ord's control. 3.5 SIGNS: It is Landlord's desire to create a Shopping Center environment that is modern and upscale. Towards this end, Landlord has established a unifor7T1 tenant sign criteria, (see Exhibit "E"), that will c8m~liment and enhance the look of the Shopping Center. Tenant will not, without first obtaining Landlord's consent, place on any exterior door, wall, window, roof or fascia of the Demised -11- Premises, any sign, a""ning, canopy or advert.isement or other such matt.er including decorations and light attractions. Approved signs and approved advertisements shall be installed at Tenant's expense and maintained at all times in a good condition. If Tenant installs any sign not previously approved by Landlord that does not meet Landlord's sign criteria, Landlord shall have the au'thority, without liability, to remove and store the sign, at Tenant's sole exoense and at Tenant' 5 risk, if Tenant fails to voluntarily remo~e the sign within seven (7) days after receiving written not.ification from Landlord of the violation. Expenses incurred by Landlord for'removing and storing Tenant's sign shall be immediately paid by Te."1ant as Additional Rent. In addition. Landlord reserves the right at its expense to temporarily remove any or all of Tenant's signs during any period ",hen Landlord repairs, restores, constructs or renovates the Demised Premises or other premises within the Shopping Center which adjoin the Demised Premises, upon gi ving Tenant seven (7) days advance written notification. 3.6 SEWER Dl:SCX1.RGE LDUTA'I'ION: Tenant shall be entitled to discharge sewage f~om the Demised Premises into the sanitary sewer system to be construc:.ed by Landlord for the benefit of the Shopping Center within which the Demised Premises are located, but Tenant covenants and ag:-ees that such discharge (whether by Tenant or any other pe~son or entity possessing or using the Demised Premises) shall not exceed an average of 650 gallons per day (the "Reserved Capacity"). The average number of gallons per day of sewage discharged f:-om the Demised Premises for each calendar year will be based on the average daily flow during the three (3) consecutive mont~s in any calendar year with the highest volume or sewage flow from the Demised Premises. "Average daily flowft shall be determined from the water consumption of the Demised Premises as evidenced by met~r readings taken from the water meter monitoring water service to the Demised Premises, but excluding any meter readings for water used in fire sprinkler syst.ems, fi=e hydrants, and/or site la!:.dscapi:lg irrigation provided that the aforesaid excluded uses are separately metered or aubmetered. One gallon of water consumption shall equal one gallon of sewage discharge. The discharge of se....age f:-om the Demised Premises in excess of the Reserveci Capa~i~; a~~ll cC~6titute a default by Tenant hereunder. In the event of a default, Landlord shall have the right to pursue all remedies at law and/or in equity, including the right t~ obtain an injunction enjoining Tenant from discharging sewage from the Demiaed Premises in excess of che Reserved Capacity. Tenant shall indemnify and hold Lar.dlord harmless from any and all claims, liabilities and costs (i~cluding reasonable attorneys fe~6) made against or incurred by Landlord as a result. directly or indirect.ly, of the disc::arge of a quantit.y of se....age from the Demi~ed ?remises in excess of the Reserved Capacity. ART!: Cr.E IV: COMMON ARJ:.AS ~.l PEYINIT!ON OF COMMON ARXAS: Common areas are all areas, space, equipment, and special ser.ices provided by Landlord fer -12- common or joint use and benefit of the Tenant and other tenants of the Shopping Center, their customers, employees, agents and invitees. This includes without limitation: roofs I walls I parking areas, access roads, driveways, sidewalks, ramps, stairways, wash rooms, fountains, public phones, pylon and/or other common area signs, shelters, lighting fixtures and equipment, security facilities, and the cost of maintaining these areas for the benefit of the Shopping Center. 4.2 COMMON AREA OPERATING COST: Common area operating costs include all costs and expenses of every kind and nature paid or incurred by the Landlord (including reasonable and appropriate reserves) in operating, managing, equipping, policing (if and to the extent provided by the Landlord), lighting, repairing, replacing and maintaining all parking facilities (including any parking structure subsequently installed in the Shopping Center for the common use of customers andlor employees of the Shopping Center), enclosed malls (including the heating and air conditioning thereof), utilities and facilities serving the Shopping Center (including off -site utilities and facilities such as retention areas and drainage facilities, all taxes, assessments, costs and other exoenses related thereto), and all other common areas of the Shopping Center (including, but without limitation, all landscaping and gardening), and the fees, costs or expenses, ~~ any, required for the maintenance and preservation of any rights -arising under any reciprocal easement agreement ("REAli) affecting the Shopping Center, or to fulfill any obligations arising under such an REA. Such costs and expenses shall likewise include (but shall not be limited to) water and sewer charges; utility system installation charges and assessments; costs of all roof and other maintenance, repairs and replacements performed by the Landlord; costs of the installation, operation, maintenance, repair and replacement of any energy management system; costs of the operation, maintenance, repair and replacement of any escalators and elevators; workers' compensation, public liability, rent interruption, f ire insurance, extended coverage and all other perils coverage, plus all endorsements and other insurance coverages deemed reasonable and necessary by Landlord i wages, unemployment taxes, social security taxes, and personal property taxes and assessments; fees for required licenses and permits; supplies; operation of loudspeakers and any other equipment supplying music to the common areas; reasonable depreciation of equipment used in the operation or maintenance of the common areas; and an administrative fee equal to the fifteen percent (15%) of the total costs and expenses of operating, managing and maintaining the Shopping Center. 4.3 CONTROL OF COMMON AREA: The common areas as defined In this Lease shall be under the exclusive control and management of the Landlord who shall have the exclusive right to es:ablish, revoke, modify and enforce :r'...lles and regulat.ior.s gover:1ing the common areas. Tenant shall make no use of the Common Area except tor non- -13- exclusive parking in designated areas and for ingress and egress without the prior consent of Landlord. ARTICLE v: CONSTRUCTION AND ALTER..~TIONS 5.1 LANDLORD'S CONSTRUCTION: The construction work required to be done on the Demised Premises by Landlord prior to the Delivery of Possession shall be as set forth in Exhibit "Bn. 5 .2 TENANT'S ALTERATIONS: Tenant agrees, upon Delivery of Possession of the Demised Premises, that it will with due diligence proceed to obtain a building permit and undertake such construction and renovation work, install such stock, fixtures and equipment and to perform such other work as shall be necessary or appropriate in order to prepare the Demised Premises for the opening of business as soon thereafter as possible but in no event later than ninety (90) days after Delivery of Possession of the Demised Premises. In the event that Tenant does not open the Demised Premises for the conduct of its business within sixty (60) days after the Commencement Date, Landlord shall have, in addition to any and all remedies herein provided, the right to collect not only the Minimum Rent herein provided, but supplementary rent at the rate of one-fifteenth (l/lSth) of the monthly Minimum Rent per day for each and every day that Tenant shall fail to commence to do business as herein provided. Said Additional Rent shall be Gaemed to be in lieu of any Percentage Rent that might have been earned during such period of Tenant's failure to open. A.."lY period of time during which said supplementary rent is due and payable in lieu of Percentage Rent shall be excluded from the applicable lease year and said lease year shall be treated as a partial lease year for purposes of the computation of the Percentage Rent breakpoint and Percentage Rent. Further, in the event Tenant d02s not open the Demised Premises for the conduct of its business within sixty (60) days after the Commencement Date Landlord shall have the right at any time thereafter to terminate this Lease by giving Tenant written notice of such termination, whereupon this Lease shall be terminated, except for Landlord's rights and remedies upon termination as herein provided. In addition, Tenant shall not, without Landlord's prior consent, either at the inception or later in the lease term, commence any alterations or modifications without first complying with E~~ibit F attached hereto and without first providing Landlord a copy of Tenant's plans, and copies of any and all governmental permits, approvals and authorizations required in connection with such work. In matters concerning changes to the external appearance of the Demised Premises or that would alter the design and/or the structural integrity of the Shopping Center, or changes to the -14- interior structural soundness of the Demised Premises, consent shall.be at Landlord's sole discretion. Alterations and construction plans consented to by Landlord shall be completed at Tenant's sole expense and shall be performed in a good workmanlike manner in compliance with all governmental requirements, and with all of the terms of this Lease, at such times as to cause a minimum of interference with other construction of Landlord or ongoing I operating businesses in the Shopping Center. Tenant agrees to indemnify and hold Landlord harmless against any loss, liability or damage resulting from such work. Tenant shall nrovide its own trash containers for construction debris and us; side/service entrances where possible. 5.3 BUILDERS RISK: Tenant shall also maintain builders "all risk", fire and comprehensive general liability, workman's compensation and employer liability insurance with respect to any and all of Tenant's construction and alteration activities, naming Landlord and Landlord's mortgagees as additional insureds, in such amounts and on such terms as are satisfactory to Landlord and customary for like construction. Prior to commencing any construction work, Tenant shall provide Landlord with copies of certificate(s) reflecting such insurance coverage. 5.4 TENANT'S DISCHARGE OF LIENS: Tenant shall promptly pay its contractor and materialmen for all work done upon the Demised Premises. Nothing in this Lease shall be constr~ed to authorize Tenant or others dealing with Tenant, to charge the rents of the Demised Premises or the interest of Landlord in the estate of the Demised Premises with a mechanic's lien or encumbrance of any kind, and under no circumstance shall Tenant be construed to be the agent, employee or representative of Landlord in completing Tenant's work. All such work shall be for the immediate use and benefit of Tenant and not Landlord. Tenant shall, upon request, provide Landlord lien waivers, and should any such lien be asserted or filed, Tenant shall immediately discharge of record (either by payment or by filing of the necessary bond, or otherNise) the same within ten (10) days. If Tenant fails to remove said lien within ten (10) days, Landlord may at its option, remove the lien by paying the claim, without investigating the validity thereof, and Tenant shall pay Landlord upon demand the amount paid by Landlord to remove the lien, including Landlord's c:::::sts and expenses. Tenant's failure to cause the lien to be released of record or to reimburse Landlord within five (5) days of Landlord's request for reimbursement shall be a default of Tenant's Lease. Landlord shall have the right, in its sole discretion, to require Tenant, or its contractor, to obtain a performance and payment bond in an amount and with a surety company satisfactory to Landlord. If the laws of the state orovide for filina a statutorv bond to eliminate attachment or mech~nic's or materialmen'S liens~ -15- Tenant. shall require that its contractor (or Tenant shall itself) file a statutory bond prior to initiation of construction. ARTICLE VI: MAINTENANCE AND REF AIRS 6.1 LANDLORD'S OBLIGATIONS: Except as provided for in Article XII, Destruction, and Article XIII, Eminent Domain, Landlord shall keep and maintain the foundation and exterior walls, the cost of which shall be included in common area operating costs, except when such repairs were necessitated from Tenant's actions or that of its officers, agents, customers or employees. 6.2 TENANT'S OBLIGATIONS: A. Tenant shall be responsible at its own expense for keeping the Demised Premises neat and clean and in good order, condi tion and repair at all times from the date of Deli very of Possession of the Demised Premises, and continuously thereafter until the end of the term hereof, including, but without limitation, replacement and restoration as required of the following: 1. The exterior and interior portion of all doors and door checks, door locks, emergency hardware openers, and door handles; 2. Windows, window molding, plate glass, store fronts, glass door panels, an~ showcases surrounding the Demised Premises; 3. All plumbing and sewage facilities within the Demised Premises, including free flow to the utility owned sewer line, including water meters; 4. Heating and air conditioning systems and equipment, sprinkler systems and electrical systems (after Landlord's Certificate of Occupancy has stated such systems are properly functioning) including electrical meters and wiring; 5. Floors and floor covering, walls and wall covering, ceiling tiles and ceili~g lights (including bulbs and coverings) ; 6. Tenant fixtures and all installations made by Tenant; 7. Repairs to the Demised Premises due to illegal entry; and 8. Maintain Tenant's sign(s} ~~ good repa~r as required ~n Section 3.5. 3. Tenant shall contract wi:h a qualified se~;lce company for reasonable maintenance of the heati~g, ventilation and air conditioning equipment and fu~~ish Landl~~d a copy of :~e co~:~act -16- --- within ten (10) days after opening and any subsequent contracts upon cancellation or expiration of the original contract. C. Cleanliness is important in Shopping Centers as it encourages repeat customers. Tenant shall therefore keep and maintain the Demised Premises in a clean, safe, sanitary and offensive-odor free condition and shall abide by all rules and regulations of governmental agencies and operate in compliance with all requirements of law, statute, ordinance, regulation, rule or other governmental authority affecting the Demised Premises and all aoourtenances thereto. Tenant shall be resoonsible for trash storage and removal through rental of comme~cial dumpsters. Landlord will provide locations in the Shopping Center for placement of these dumpsters. D. If Tenant refuses or neglects to commence and to complete repairs, Landlord may, at Landlord's option, place Tenant in default of the Lease and make said repairs and Tenant shall pay the cost thereof plus any administrative charges, as Additional Rent upon demand. 6.3 SURRENDER OF DEMISED PREMISES: At the exoiration of the tenancy, Tenant shall peaceably surrender the Demised Premises in the same condition as received by it on the Delivery of Possession, reasonable wear and tear expected. All keys to the Demised Premises and lock combinations to any safes or vaults which may be in the Demised Premises shall also be turned over to Landlord at the same address used for rent payment. Any and all alterations, additions, improvements, and fixtures which may be made or installed bv either the Landlord or the Tenant upon the Demised Premises and which in any manner are attached to the floors, walls or ceilings (including, without limitation, any linoleum or other floor covering of similar character which may be cemented or otherwise adhesively affixed to the floor, and any heating, ventilating and/or air-conditioning equipment) shall remain upon the Demised Premises, and at the termination of this lease shall be surrendered with the Demised Premises as a nart thereof without disturbance, molestation or inj ury. Howeve-r, the usual trade fixtures and furniture which may be installed in the Demised Premises prior to or during the term hereof at the cost of the Tenant may be removed by the Tenant from the Demised Premises upon the termination or this Lease if, but only if, the Tenant is not then in default hereunder. Further, Landlord may require Tenant to remove trade fixtures and any other alterations, installations or improvements during the last thirty (30) days of its tenancy by giving sixty (60) days written notice to Tenant. Tenant shall repair any and all damage caused to the Demised Premises resulting from or caused by removal of Tenant's fixtures and for any of Tenant's alt.erations, installations or imorovements. Tenant's obliaation to oerform this covenant shall survive the exoiration or this Lease. -In no event shall the Te~ant be entitled to remove any heating, ventilating or air-conditioning equipment. Any items remaining in the Demised Premises on the termination date shall be deemed abandoned and shall become the property or Landlord and Landlord may dispose of same without lia~ili~y. ~~y cost to -17- remove fixtures or repair damage caused by Tenant's vacating shall be Tenant's expense and Landlord may use Tenant's Security Deposit to help defray such expenses but the Security Deposit shall not constitute satisfaction of the cost, should such cost exceed the amount of the Security Deposit. ARTICLE VII: INSURANCE AND INDEMNITY 7.1 CASUALTY INSURANCE: The Tenant also agrees that it shall continuously keep its fixtures, merchandise, equipment and other personal property from time to time located in, on or about the Demised Premises, and all leasehold improvements to the Demised Premises insured by reputable, duly licensed insurance companies against loss or damage by fire with the usual extended coverage endorsements in amounts at least equal to the full replacement cost thereof. During the term of this Lease, the proceeds from any such policy of insurance shall be used for the repair or replacement of the fixtures and equipment so insured. Prior to the Commencement Date, and no less often than annually thereafter, and at any other time uoon the reauest of the Landlord, the Tenant shall furnish to the Landlord evidence of such continuous insurance coverage satisfactory to the Landlord. It is understood and agreed that the Tenant assumes all risk of damage to its own property arising from any cause whatsoever, including, without limitation, loss by theft or otherwise. 7.2 WAIVER OF SUBROGATION: Insofar as and to the extent that the following provision may be effective without invalidating or maki~g it impossible to secure insurance coverage obtainable from resoonsible i~surance comoanies doina business in the Commonwealth of Pennsylvania (even though extra premium may result therefrom), the Landlord and the Tenant mutually agree that with respect to any loss which is covered by insurance then being carried by them, respectively, the one carrying such insurance and suffering said loss releases the other of and from any and all claims with respect to such loss to the full extent, but only to the extent, of such insurance coverage; and they further mutually agree that their respective insurance companies shall have no right of subrogation against the other on account thereof. In the event that any additional premium is payable by either party as a result of this provision, the other party shall reimburse the party paying such premium the amount of such extra premium. The releases herein contained shall not apply to any loss or damage occasioned by the willful ac~s of either of the parties hereto. 7.3 INCREASE IN FIRE INSURANCE PREMIUMS: Tenant agrees not to keep, use, sell or offer for sale, in or upon the Demised P~emises, any articles or goods which may be prohibited by the standard form of fire i~surance policy or will othe~Nise increase the rate of fire or other insurance on the Demised Premises. Tenant agrees to pay upon demand any such increase in premium for any insurance whic~ may be car~ied by Landlord on said Demised ?remises, or che -18- Shopping Center of which the same are a part, resulting from the use of the Demised Premises by Tenant, whether or not Landlord has consented to such use. 7.4 LIABILITY INSURANCE: Tenant shall, during the entire term hereof, keep in full force and effect a policy of public liability and property damage insurance with respect to the Demised Premises and the business operated by Tenant and permitted subtenants of Tenant in the Demised Premises in which the combined single limits of coverage shall not be less than $1,000,000.00 per occurrence. The limits of coverage shall be increased from time to time upon Landlord's request, in accordance with shopping center management practices then prevailing in the area of the Shopping Center. The policy shall be in form approved by Landlord, shall name Landlord (and such other persons as are in privity of estate with the Landlord as may be set out in notice from time to time) and Tenant as the insureds, and shall contain a clause that the L~surer will not cancel, materially modify or fail to renew the insurance without first giving Landlord thirty (30) days prior written notice. The insurance policy shall be written by an insurance company approved by Landlord, authorized to do business in the Commonwealth of Pennsylvania and having a policyholders' rating of no less than "A" in the most current edition of Best's Insurance Reports. A copy of the policy or a certificate of insurance shall be delivered to Landlord. The policy shall insure Tenant's performance of the indemnity provisions of this Lease. 7.5 RENTAL INTER.RUPTION INSURANCE: Landlord may, in Landlord's sole discretion, maintain a policy of rental interruption insurance, the cost of which shall be part of common area operating costs. 7.5 INDEMNIFICATION OF LANDLORD: Tenant will protect, indemnify, defend and save harmless Landlord, its agents and servants, from and against any and all claims, actions, damages, suits, judgements, decrees, orders, liability and expense (including all costs, expenses and liabilities incurred in or in connection with any such claim or proceeding, and attorney fees) in connection with loss of life, bodily injury, personal injury and/or damage to property of whatever kind or character, howsoever caused, arising from or out of any occurrence in, upon or about the Demised Premises, or in the occupancy or use by Tenant. of the Demised Premises or any part thereof, or occasioned wholly or in part by any act or omission of Tenant, its agents, contractors, licensees, employees, servants, sublessees, or concessionaires, notwithstand- ing any possible negligence (whether sole, concurrent or otherwise) on the part of Lar:c.lord, its agents, cont::-actors, employees or servants. 7.7 PLATE GLASS: Tenant shall ::-eplace at its own expense any and all plate and other glass in and about the Demised Premises damaged or broken =rom any cause whatsoever. 7.8 LANDLORD'S MORTGAGEE: Wherever he~ein Tenant is reGui~ed to add Landlord as a~ i~su~ed to any ?clicy 0: l~s~~a~cel to i~sG~e -19- - Landlord, or to provide a certificate or other proof of insurance or a notice to Landlord, Tenant must treat any mortgagee of Landlord that Landlord has notified Tenant of in a like manner. ARTICLE VIII: SUBORDINATION, NOTICE, ESTOPPEL AND ATTORNMENT 8.1 SUBORDINATION: Landlord shall have the right to transfer, mortgage, assign, pledge, sell and leaseback, conveyor otherwise encumber in whole or in part, the Demised Premises, the Shopping Center, this Lease and all rights of Landlord existing and to exist, and rents and amounts payable to it under the provisions hereof; and nothing herein contained shall limit or restrict any such right, and the rights of the Tenant under this Lease shall be subj ect and subordinate to all instruments executed and to be executed in connection with the exercise of any such right of the Landlord, including, but not limited to, any REA affecting the Demised Premises and the Shopping Center and the lien of any mortgage, deed of trust or security agreement now or hereafter placed upon the Demised Premises and the Shopping Center and to all renewals, modifications, consolidations, participants, replace- ments and extensions thereof. Said subordination shall not require the agreement or consent of Tenant, but Tenant covenants and agrees, if requested, to execute and deliver upon demand such further instruments subordinating this Lease to the lien of any such mortgage, deed of tr~st, security agreement or sale and leaseback as shall be requested by the Landlord and/or any mortgagee, proposed mortgagee, holder of any security agreement, or purchaser or such other party and Tenant hereby irrevocably appoints the Landlord as its attorney-in-fact to execute and deliver any such instrument for and in the name of the Tenant. Notwithstanding anything set out in this Lease to the contrary, in the event the holder of any mortgage or deed of trust elects to have this Lease superior to its mortgage or deed of trust, then, upon Tenant being notified to that effect by such encumbrance holder, this Lease shall be deemed prior to the lien of said mortgage or deed of trust, whether this Lease is adopted prior to or subsequent to the date of said mortgage or deed of trust. 8.2 NOTICE TO LANDLORD: The Landlord shall in no event be in default in the performance of any of the Landlord's obligations hereunder unless and until the Landlord shall have failed to perform such obligations within thirty (30) days, or such additional time as is reasonably required to correct any such defaul t, after notice by the Tenant to the Landlord properly specifying wherein the Landlord has failed to perform such obligation. Further, if the holder of a mortgage wn~cn includes the Demised Premises notifies the Tenant chat such holder has taken over the Landlord's rights under this Lease, the Tenant shall not -20- assert any right to deduct the cost of repairs or any monetary claim against the Landlord from rent thereafter due and payable, but shall look solely to the Landlord for satisfaction of such claim. Nothing herein contained shall be deemed to create any rights in Tenant not specifically granted in this Lease or under applicable provisions of law. 8.3 ESTOPPEL CERTIFICATE: Tenant agrees, at any time, and from time to time, upon not less than ten (10) days' prior notice by Landlord, to execute, acknowledge and deliver to Landlord, a state- ment in writing addressed to Landlord or other party designated by Landlord certifying that this Lease is in full force and effect (or, if there have been modifications, that the same is in full force and effect as modified and stating the modifications) i stating the actual commencement and expiration dates of the Lease; stating the dates to which rent, and other charges, if any, have been paid, stating the history of the Percentage Rent which has become due over the term of the Lease, if any; that the Demised Premises have been completed on or before the date of such cert- ificate and that all conditions precedent to the Lease taking effect have been carried out or fulfilled; that Tenant has accepted possession; that the lease term has commenced; Tenant is occupying the Demised Premises and is open for business; and stating whether or not there exists any default by either party in the performance of any covenant, agreement, term, provision or condition contain~d in this Lease, and, if so, specifying each such default of whi~h the signer may have knowledge and the claims or offsets, if any, claimed by the Tenant; it being intended that any such statement deli vered pursuant hereto may be relied upon by Landlord or a purchaser of Landlord's interest and by any mortgagee or prospect- ive mortgagee of any mortgage affecting the Demised Premises or the Shopping Center. If Tenant does not deliver such statement to Land- lord within such ten (10) day period, Landlord, and any prospective purchaser or encumbrancer, may conclusively presume and rely upon the following facts: (i) that the terms and provisions of this Lease have not been changed except as other....ise represented by Landlord; (ii) that this Lease has not been cancelled or terminated except as otherwise represe~ted by Landlord; (iii) that not more than one month's Minimum Rent or other charaes have been naid in advance; and (iv) that Landlord is not then in default under this Lease. In such event, Tenant shall be estonped from denying the truth of such facts. Tenant shall also, on ten (10) days written notice, provide an agreement ~n favor of and in the form customarily used by such encumbrance holder, by the terms of which Tenant will agree to give prompt '....ritten notice to any such encumbrance holder in the event of any casualty damage to the Demised Premises or in the event of any default on the part of Landlord under this Lease, and will agree to allow such encumbrance holder a reasonable length of time after notice to cure or cause the curing of such default before exercising Tenant's right of self-help under this Lease, if any, or terminating or declaring a default under this Lease. 8.4 ATTORN~ENT: At the option of the holder of any mortgage - 21- - affecting the Demised Premises, Tenant acrrees that no foreclosure of a mortgage affecting the Demised Premises, nor the institution of any suit, action, summary or other proceeding against the Landlord herein, or any successor Landlord, or any foreclosure .proceeding brought by the holder of any such mortgage to recover possession of such property, shall by operation of law or otherwise result in cancellation or termination of this Lease or the obligations of the Tenant hereunder, and upon the request of the holder of any such mortgage, Tenant covenants and agrees to execute an instrument in writing satisfactory to such party or parties or to the purchaser of the mortgaged premises in foreclosure whereby Tenant attorns to such successor in interest. 8.5 ASSIGNMENT OF RENTS: With reference to any assignment by the Landlord of the Landlord's interest in this Lease, or the rents payable hereunder, conditional in nature or otherwise, which assignment is made to the holder of any mortgage on the Demised Premises, the Tenant agrees: (A) that the execution thereof by the Landlord, and the acceptance thereof by such holder, shall never be deemed an assumption by such holder of any of the obligations of the Landlord hereunder, unless such holder shall, by written notice sent to the ~enant, specifically other- wise electi and (B) that, except as aforesaid, such holder shall be treated as having assumed the Landlord's obligations hereunder only upon foreclosure of such holder'S mortgage and the taking of possession of the Demised Premises by such holder. ARTICLE IX: ASSIGNMENT AND SUBLETTING 9.1 CONSENT REQUIRED: Tenant shall not voluntarily or involun- tarily assign this Lease in whole or part, nor sublet (which term, without limitation, shall include the arantincr of concessions, licenses, and the like) all or any par~ of th~ Demised Premises without following the procedures detailed herein and obtaining the prior express consent of Landlord in each instance, which consent may be granted or withheld in Landlord's sole discretion. In the event the Tenant seeks the Landlord's consent oursuant to this Section 9.1, the Tenant shall furnish the Landiord with a Confes- sion of Judgment instrument containing provisions substantially similar to those contained in Section 14.2 hereof, executed by the proposed assignee or sublessee, as the case may be, as well as such information regarding the prospective assignee or sublessee as the Landlord may require, including without limitation information regarding financial ability and business experience relating to the uses permitted hereunder. The consent by ~andlord to any assign- ment or sublettincr shall not constitute a waive~ of t~e necessity for such consent in any subsequent assignment or subletting. The -22- - foregoing shall be construed to include a prohibition against any voluntary or involuntary assignment or subletting arising by operation of law. For the purposes of this Lease, the entering into of any management agreement or any agreement in the nature thereof transferring control of any substantial percentage of the profits and losses from the business operations of the Tenant in the Demised Premises to a person or entity other than the Tenant, or otherwise having substantially the same effect, shall be treated for all purposes as an assignment of this Lease and shall be governed by the provisions of this Section 9.1. In the event that Tenant receives a bona fide written offer from a third party for the sublease or assignment of the Demised Premises, Tenant shall forthwith notify Landlord in writing, attaching a copy of said offer, of Tenant's desire to sublet or assign this Lease upon terms of said offer, whereupon Landlord shall have thirty (30) days to accept or reject said assignment or sublease, or at Landlord's sole option, cancel and terminate this Lease, in which case Landlord may elect to enter into a direct lease with the proposed assignee or subtenant. The failure of Landlord to either accept or reject said assignment or sublease within the said thirty (30) days period shall be deemed a rejection of said assignment or sublease. Notwithstanding anything contained herein to the contrary, Tenant shall be entitled, in connection with the sale of Tenant's business, to assign or sublet the Demised Premises to the buyer of said business, subject to Landlord's reasonable consent, which shall be based upon said proposed buyer's financial ability and business experie~ce in running such a business, which assignment or sublet shall not, however, relieve Tenant of its obligations hereunder. If Tenant shall purport to assign this Lease, or sublet all or any portion of the Demised Premises, or permit any person or persons other than Tenant to occupy the Demised Premises, Landlord may collect rent from the person or persons then or thereafter occupying the Demised Premises and apply the net amount collected to the rent reserved herein, but no such collection shall be deemed a waiver of this Article IX, or the acceptance as tenant of any such purported assignee, subtenant or occupant, or a release of Tenant from the further performance by Tenant of covenants on the part of Tenant herein contained. Notwithstanding any assignment or sublease, Tenant shall remain fully liable for the obligations of the Tenant hereunder, including, without limitation, the obligation to pay the rents and other amounts provided for under this Lease, and shall not be released from performing any of the terms, covenants or conditions hereof. If Tenant is a corporation or partnership, any sale, transfer, pledge, leveraged buyout or o~her disposition of twenty-five percent (25~) or more or the corporate stock or the stock of any corporate guarantor of the Tenant specified ~n Section 1.1 (N) hereof, or the stock of the pare~: corporation of the -23- Tenant, ,or twenty-five percent (25%) or more of partnership ownershl.p (or any general partner interest in the case of a limited partnership) (whether such sales, transfer or other dispositions occur at one time or at intervals so that in the" aggregate, over the term of this Lease, such transfers of stock or partnership interests shall have occurred), or any reorganization or restructuring which results in the net worth of Tenant decreasing by more than ten percent (10%), shall be deemed to be an assignment. Landlord shall be entitled to, and Tenant shall remit to Landlord, any profit or consideration which may inure to Tenant as a result of any assignment or subletting. If Tenant assigns or sublets the Demised Premises, the Minimum Rent shall thereafter be adjusted for the balance of the term of this Lease such that the Minimum Rent payable hereunder shall thereafter be equal to the sum of (i) the greater of (a) the annual Minimum Rent specified in Section 1.1 (G) or 1.1 (J) (whichever is applicable) of this Lease or (b) the annual Minimum Rent payable pursuant to such assignment or sublease, plus (ii) the highest of the amounts of the annual Percentage Rent payable hereunder for and with respect to any of the then last three (3) full lease years preceding the assignment or subletting. At Landlord's request, Tenant shall assign to Landlord the right to collect rent (including any Additional Rent) from any subtenant of Tenant and to apply such proceeds to Tenant's obligations under this Lease. Landlord shall have the right to sell, convey, transfer or assign all or part of its interest in the real property and the buildings of which the Demised Premises are a part or its interest in this Lease. All covenants and obligations of Landlord under this Lease shall cease upon the execution of such conveyance, transfer or assignment, but such covenants and obligations shall run with the land and shall be binding upon the subsequent owner or owners thereof or of this Lease. ARTICLE X: WASTE, GOVER.~AL AND INSURANCE REQUIREMENrS AND HAZARDOUS SUBSTANCES 10.1 WASTE OR NUISANCE: Tenant shall not commit or suffer to be committed any waste upon the Demised Premises or any nuisance, offensive odor or loud noise (including but without limitation, the use of loudspeakers) or other act or thing which may disturb the quiet enjoyment of any other tenant in the building in which the Demised Premises may be located or in the Shopping Center, or which may disturb the quiet enjoyment of occupants of adjoining proper- ties. ~0.2 INSURANCE REQUIREMENTS: Tenant shall, expense, comply with all or the requireme~ts carrier for the Shopping Cente!', now in hereafter become applicable. at its sole cost and of any insu!'ance force or which may -24- '\ 10.3 HAZARDOUS SUBSTANCES: Tenant covenants and warrants that Tenant, Tenant's Work, as set forth in Exhibit F attached hereto and made a part hereof, and any alterations thereto and Tenant's use of Demised Premises and performance of its obligations hereunder will at all times comply with and conform to all present and future laws, statutes, ordinances, rules and regulations of ~~y federal, state or local governmental, quasi-governmental or regulatory authorities (the "Laws"), including, but not limited to, environmental laws, rules and regulations which relate to the transportation, storage, placement, handling, treatment, discharge, generation, production or disposal (collectively "Treatment") of any liquid, solid or gaseous waste, petroleum product, waste products , radioactive waste, poly- chlorinated biphenyls, asbestos, hazardous materials of any kind, and any substance which is or becomes regulated by any Law, statute, ordinance, rule or regulation (collectively "Waste"). Tenant further covenants and warrants that it will not engage in or permit any person or entity to engage in any Treatment of any Waste on or which affects the Demised Premises. Immediately upon receipt of any Notice (as hereinafter defined) from any person or entity, Tenant shall deliver to Landlord a true, correct and complete copy of any written Notice. "Notice" shall mean any note, notice, or report of any suit, pro.ceeding, investigation, order, consent order, injunction, writ, award, or action related to or affecting or indicating the Treatment of any Waste in or affecting the Demised Premises. Tenant hereby agrees, in addition to and not in lieu of any other indemnities contained in this Lease or otherwise provided by law, that it will indemnify, defend, save and hold harmless the Landlord and Landlord's officers, directors, shareholders, employees, agents, partners., and their respective heirs, successors and assigns (collectively "Indemnified Parties") against and f=om, and to reimburse the Indemnified Parties with respect to, any and all damages, claims, judgments, penalties, fines, liabilities, loss, costs and expense (including, without limitation, all attorney's fees and expenses, court costs, administrative costs, costs of appeals, consultant's and expert.' s fees and expe:'.ses, damages arising from any adverse impact on marketing of space or diminution in value of the Demised Premises or the Shopping Center and damages for the loss or restriction of use of rentable or usable space or of any amenity at the Demised Premises or the Shopping Center), incurred by or asserted against the Indemr.ified Part:.ies by reason of or arising out of; (a) the breach of any representation or undertaking of Tenant under this Section 10.3 or (b) arising out of the Treatment of any Waste by Tenant or a~y licensee, concessionaire, manager or other party occupying or using the Demised Premises, or in or affecting the Demised Premises. This indemnification or Landlord by Tenant a:so includes, but is not limited to, costs incurred in connecti~~ with any investigation by Landlord of site conditions from time to time or of any cleanup, remedial, removal, or restoration work =e~~i~~d -25- - by any federal, state or local government agency or political subdivision because of any release of Waste or breach of this Section 10.3. Landlord is given the right, but not the obligation, to inspect and monitor the Demised Premises and Tenant's use of the Demised Premises in order to confirm Tenant's compliance with the terms and the representations set forth in this Section 10.3. Landlord may require that Tenant deliver to Landlord concur~ent with Tenant's vacating the Demised Premises at Tenant's expense, a certified statement by licensed engineers, in form and substance satisfactory to Landlord, stating that Tenant, Tenant's Work and any alterations thereto and Tenant's use of the Demised Premises comolied and conformed to all Laws which relate to the Treatment of any-waste in or affecting the Demised Premises. The Tenant agrees to deliver upon request from Landlord estoppel certificates to Landlord expressly stipulating whethe= Tenant is engaged in or has engaged in the Treatment of any Waste in or affecting the Demised Premises, and whether the Tenant has caused any spill, contamination, discharge, leakage, release or escape of any Waste in or affecting the Demised Premises, whether sudden or gradual,. accidental or anticipated, or of any other nature, at or affecting the Demised Premises and whether, to the best of Tenant's knowledge, such an occurrence has other.....ise occurred at or affected the Demised Premises. 10.4 GOVERNMENT PERMITS: Tenant shall, in performing its ob- ligations hereunder and at its own expense, comply with all ap- plicable present and future laws, ordinances, rules, and regul- ations of all federal, state and local authorities f=om time to time apolicable to the Demiseu Premises and the business conducted therein- by Tenant, including, without limitation, obtainins and maintaining any and all permits, licenses, certificates or other authorizations now or hereafter necessary, lawful and proper in order to permit Tenant to use the Demised Premises for the purposes set forth in Section 1.1 (M). Copies of all such per:r.its, licenses, certificates and authorizations shall be delivered to Landlord on a timely basis. 10.5 SURVIVAL: All of the terms, covenants, warranties anc in- demnifications contained in this Section shall survive the :erm- inatian of this Lease. ARTICLE XI: ADVERTISING AND PROMOTIONAL PROGRAM 11.1 ADVERTISING AND PROMOTIONAL PROGRAM: The Landlord may establish an Advertising and Promotional Program (hereafter refer=ed to as the ltprogram") to furnish and maintain adver~~sing and sales promotions which will benefit the Shopping Cente~. The p~omotions director staff and any consultants hired by Land:crd to direc: and perform the activities of the P~ogram shall be under the -25- \ direction and supervision of Landlord. A representative of each business occupying the Shopping Center will review the advertising and other promotional activities provided by the Program. All monies received under t.his Section shall be used solely for advertising, public relations, promotional services and administ- rative expenses relating to the promotion of the Shopping Center. During each lease year, Tenant shall pay to Landlord in monthly installments in advance, its share of the cost of the Procrram, an amount herein called the I1Promotional Charge", based o-n total square footage of the Demised Premises. For any fraction of a month at the commencement or expiration of the term, t.he monthly payment of the Tenant's Promotional Charge shall be prorated. The Tenant agrees, upon request from the Landlord, t.o furnish suitable advertising material for such purposes. Any advertisements, circulars or other promotions need not make specific reference to anyone or more occupants of the Shopping Center, but. may advertise the Shopping Cent.e= generally or specific portions therein or occupants of such portions. It is unde=stood and agreed that. if the Landlord shall elect., the Landlord may replace t.he Program with an association (the "Association") in order to carry out the activities formerly carried out by the Program. Upon the creation of such Association, the Tenant shall immediately join such Association and maintain membership therein. In addition thereto, the Tenant shall pay to the Association a sum equal to that which the Tenant would have paid to the Landlord for the Tenant's Promotional Charge if the Program had remained in existence. If the Landlord shall create such Association to replace the Program or if the Prog=am shall be an independent entity, it is understood and agreed that, if the Tenant shall :ail to pay the dues and assessments to the Association or if thA Tenant shall fail to pay t.he Promotional Charge to such an independent Program, as above provided, the Landlord shall have the same rights granted to the Landlord under this Lease for the non-payment of rent or other charges, even though such dues or assessments may be payable to such Association or the Tenant's Promotional Charge may be payable to another entity. Although neither a Program nor an Association is currently planned, :..andlord, at a future date reserv'es the right I but undertakes no obligation, to establish such a Program or Associat.ion should Tenant's sales or Shopping Center business require such a promotional fund. ARTICLE XII: DESTRUCTION 12.1 TOTAL OR PARTIAL DESTRUCTION: If the Demised Premises shall be partially or totally destroyed by fire or ocher casualt.y insurable under full standard fire and extended risk insurance, so as t.o bec~me part.ially or totally u~~enantable, the same (unless Landlord shall elect not to rebuild as hereinafter provided) shall be repaired and restored by and at the cost of Landl~rd, to ~he -27- extent originally constructed by Landlord (consistent, however, with zoning laws and building codes then in existence), and to substantially the condition in which such portion of the Demised Premises was in at the time of such damage. If (i) more than one-third (1/3) of the building in which the Demised Premises are located shall be substantially destroyed or damaged (as that term is hereinafter defined) by fire or other casualty (whether or not the Demised Premises are damaged or destroyed), or (ii) any lender of Landlord does not permit use of insurance proceeds to repair and restore the building, or (iii) the unexpired portion of the term of this Lease shall be two (2) years or less at the date of the damage, then Landlord may elect not to repair or rebuild the Demised Premises, or so much thereof as was originally constructed by Landlord, by giving written notice within sixty (60) days after such occurrence of its election to terminate this Lease i otherwise, Landlord shall proceed with such recon- struction with reasonable speed after such occurrence (but the Landlord shall not be responsible for any delay which may result from any cause beyond the Landlord's reasonable control), and this Lease shall remain in full force and effect. Notwithstanding anything to the contrary contained herein, Landlord shall not be obligated to commence reconstruction or repairs until Landlord has received the proceeds of any applicable insurance claim and Landlord's obligation to restore and repair is limited to the proceeds of such insurance. In the eve~t that Landlord shall exercise the right given heretofore to terminate, then this Lease and the terms hereof shall cease as of the date of such damage or destruction, and all rent or other charges payable by Tenant shall be prorated to the date of such damage or destruction. In the eve~t that this Lease is not canceled, then Minimum Rent only shall be abated or reduced proportionately during the period in which the Demised Premises are rendered wholly or partially untenantable to the extent such damage or destruction shall interfere with the operation of Tenant's business in the Demised Premises and to the extent that Landlord is paid the equivalent of such Minimum Rent by rent loss insurance proceeds. Such abatement or reduction shall continue for the period commencing with such destruction or damage and ending with Landlord's substantial completion of such work or repair or restoration as Landlord is obligated or elects to do, as the case may be, and as provided in this Article XII. Nothing in this Section shall be construed to abate or reduce Percentage or Additional Rent. 12.2 PARTIAL DESTRUCTION OF SHOPPING CENTER: In the event that 50% or more of the Shopping Center shall be substantially damaged or destroyed by f ire or other cause, notwithstanding that the Demised Premises may be unaffected by such fire or other cause, Landlord shall ~ave t~e right, to be exercised by notice in writing delivered to Te:-:.ant within sixty (60) days after said occurrenc,e, -28- to cancel and terminate this Lease. Upon the giving of such notice to Tenant, the term of this Lease shall eXDire bv laDse of time 30 days after such notice is given, and Tenant. shail vacate the Demised Premises and surrender the same to Landlord pursuant to the terms of this Lease. 12.3 TENANT'S RESTORATION: Unless this Lease is terminated as provided in Section 12.1 or Section 12.2 of this ARTICLE XII, if the Demised Premises shall be damaged or destroyed by fire or other casualty, then the Tenant shall: (i) repair and restore all portions of the Demised Premises not required to be restored by the Landlord pursuant to this ARTICLE XII to substantially the condition which such portions of the Demised Premises were in at the time of such casualty; (ii) equip the Demised Premises with trade fixtures and all personal property necessary or proper for the operation of the Tenant's business; and (iii) open for business in the Demised Premises as soon thereafter as possible. 12.4 SUBSTANTIAL DAMAGE: The term "substantially damaged or destroyed", as used in this ARTICLE XII, shall have reference to damage of such a character as cannot reasonably be expected to be repaired, or the premises restored, within sixty (50) days from the time that such repair or restoration work would be commenced. ARTICLE XIII: EMINENT DOMAIN 13.1 CONDEMNATION: In the event of any condemnation or conveyance in lieu thereof of the Demised Premises or the Shopping Center, or both, whether whole or partial, Landlord may terminate this Lease, and in any event, Tenan= shall have no claim against Landlord or the condemning authority for the value of the unexpired term, and Tenant shall not be entitled to any part of the compensation or award, whether paid as compensation for diminution in value to the leasehold or to the fee of the Demised Premises, and Landlord shall receive the full amount thereof, Tenant hereby waiving any right to any part thereof and assigning to Landlord its interest therein; provided, however, to the extent the amount recoverable by Landlord, as hereinabove set forth, is not diminished thereby, Tenant shall have the right to claim and recover from the condemning authority (but not from Landlord) such compensation as may be separately awarded to Tenant in Tenant's own name and right on account of all damage to Tenant's business by reason of the condemnation, any cost which Tenant may incur in removing Tenant's property from the Demised Premises and any costs of relocating Tenant's business. Further, Tenant's rights to recover under this paragraph shall be subordinate to the rights of Landlord's first mortgagee. 13.2 RESTORATION OF DEMISED PREMISES: In the event that any part of the Demised Premises shall be taken or condemned, and should this Lease not be terminated i:l accordance with the foregoing provision, the Landlord will, withi:l a reasonable time after such -29- ) taking or condemnation, restore the Demised Premises to an architectural unit as nearly like its condition prior to such taking as shall be practicable. The Minimum Rent or a fair and just proportion thereof, according to the nature and extent of the damage sustained, shall be suspended or abated until such restoration is substantially complete. ARTICLE XIV: DEFAULT OF TENANT ~4.1 DEFAULT: Anyone or more of the following shall constitute an nEvent of Defaultll under this Lease: (A) failure of Tenant to make, within ten (10) days after the date when duet any payment of Minimum Rent, Percentage Rent, Additional Rent or other monetary amo~~c payable by Tenant hereunder or to timely discharge any other monetary obligation (it being understood that Tenant's obligation to pay any rental herein is an independent covenant and that Tenanc will pay such rental without offset or deduction) ; (B) Tenant's failure to perform any other of the te~s, conditions or covenants of this Lease to be observed or performed by Tenant, which failure continues for ten (10) days after written notice thereof, provided, however that such right to written notice sh~ll be limited to two (2) times during each calendar year of the term of this Lease; (e) if Tenant shall become bankYUpt or insolvent, or file or have filed against it any bankruptcy proceedings, or take or have taken against it in any court pursuanc to any statute, either of the United States or of any state, a pe=ition of bankruptcy or insol veney, or for reorganization or for the appointment of a receiver or trustee of all or a portion of Tenant's property, or if Tenant makes an assignment for the benefit of creditors, or petitions for or enters into such an arrangement; (D) if Tenant fails, after the te~ of this Lease commences, to be open for business to the p~blic for more than two (2) days when required by this Lease to be so open in anyone lease year, or for more than an aggregate of any five (5) such days during the term hereof, or if the Tenant shall otherwise abandon or vacate the Demised Premises, or suffer this Lease to be taken under any writ of executioni (E) if Tenant shall default in the timely payment of Minimum Rent, Percentage Rent, Additional Rent, or other charge payable by Tenant hereunder or to timely discharge any other monetarf obligation three times in any twelve month period, notwithstanding the fact that any such c.efault shall have been cured; (F) the falsification by Te~ant any agent of Tenant. 0: -30- any report or statement required to be furnished to Landlord pursuant to the terms of this Lease; the falsification of any such document shall be deemed an incurable, material breach of this Lease and, at Landlord's option, constitute an immediate termination of Tenant's right to possession of the Demised Premises; or (G) at the option of Landlord, if Tenant or any affiliate of Tenant shall default with respect to any other lease or agreement between it and Landlord or any affiliate of Landlord. The notice and grace period provisions in subparagraphs (A) and (B) above shall have no application to the defaults referred to in subparagraphs (C), (D), (E), (F) and (G) above. If any Event of Default occurs, the Landlord, besides all- such other rights or remedies it may have under this Lease or in law or in equity, shall have the right, without demand or notice (and Tenant hereby expressly waives any notice to quit possession of the Demised Premises) to enter the Demised Premises and take possession thereof and of all permanent improvements thereon and may remove all persons and property from the Demised Premises by force, summary action, or otherwise, and such property may be removed and stored in a public warehouse or elsewhere at the cost of and for the account of Tenant, all without se=vice of nctice or resort to legal process, and without being deemed guilty of trespass or becoming liable for any loss or damage which may be occasioned thereby and without prejudice to any remedies which might otherwise be used for arrears of rent or preceding breach of covenant. Tenant agrees that Tenant shall have no further claim under this Lease and shall quit and deliver up the possession of the Demised Premises, including permanent improvements to the Demised Premises, when this 'Lease terminates by limitation or in any other manner provided for herein. 14.2 REMEDIES: If an Event of Default occurs, the Landlord may elect to re-enter or take possession as provided for herein, and it may either terminate this Lease, or it may f::::-om time to time without terminating this Lease make such alte::::-ations and repairs as may be necessary in order to relet the Demised Premises or any part thereof for such term or terms (which may be for a term extending beyond the term of this Lease) and at such ::::-er.:al or rentals and upon such other terms and conditions as Lanc.lord in its sole discretion may deem advisable. Any reletting shall be done in such a manner as Landlord may deem prope::::-. It is specifically understood and agreed that the Landlord shall be entitled to take into account in connection with any reletting of the Demised P::::-emises all relevant factors which would be taken into account by a sophisticated developer in securing a replacement tenant for the Demised Premises, suc~ as, but not limite~ to, t~e type of shopping cent.er t.hen being operated on the Shopping Center, matters of tenant mix, the type of operation proposed tJ ~e conducted by any -31- such replacement tenant, and the financial responsibility of any such replacement tenant; and the Tenant hereby waives, to the extent permitted by applicable law, any obligation the Landlord may have to mitigate the Tenant's damages. Further, if no such waiver of any duty that may be imposed upon Landlord to mitigate Tenant's damages is effective, then at no time shall Landlord's decision to lease or let other available space in the Shopping Center be deemed to be a failure to mitigate said damages. Upon each such reletting all rentals received by Landlord shall be applied first to the payment of any indebtedness other than rent due hereunder from Tenant to Landlord; second to the payment of any costs and expenses of such reletting including brokerage fees and attorneys' fees, costs of collecting the rent in cor~ection with such relet, and the costs of any necessary or desirable alterations and repairs; third to the payment of the most overdue rent owed at that time; and the residue, if any, shall be held by Landlord and applied in payment of future rent as the same may become due and payable hereunder from Tenant. If such rentals received from such reletting during any month be less than that to be paid during that month by Tenant hereunder, Tenant shall be liable for the payment of such deficiency to Landlord. Such deficiency shall be calculated and become payable monthly in the same manner as Minimum Rent, as specified in Section 2.1 hereof. No such re-entry or the taking of possession of the Demised Premises by Landlord shall be construed as an election on its part to terminate this Lease or to accept a surrender thereof unless a written notice of such intention be given to Tenant. Notwithstanding any such reletting wit.hout termination, Landlord may at any time thereafter elect. to terminate this Lease for such previous breach. Should Landlord at any time terminate this Lease for any Event of Default, in addit.ion to any other remedies it may have, it may recover from Tena~t. all damages it may occur by reason of such breach, including the cost of recovering the Demised Premises, and the amount of rent and charges equivalenc to rent reserved in this Lease for the remainder of the stated term, all of which amounts shall be immediately due and payable from Tenant to Landlord. In determining the rent which would be payable by Tenant hereunder subsequent to default, the annual rent for each year of the unexpired term shall be equal to the Minimum Rent set forth in Section 1.lG (or if defaul: occurs during any option period hereto, as set forth in Section 1.1(J)), and the Additional and Percentage Rents specified in Secticn 14.3. TO INDUCE THE L..WDLORD TO ENTER INTO THIS LV.S=:, (I) TE=: TENANT CONFIR~S AND AGREES TEAT THIS TRANSACTION IS A COMMERCI~L AND NOT A CONSUMER TR~SACTION, (II) TEE TEN~~T HEREBY WA:v~S, TO THE FULL EXTENT PERMITTED BY LAW, ANY RIGHT TO TRIAL BY JU""RY IN ANY ACTION, PROCEEDING OR COu~TERC~.IM BROUGHT BY THE ~_NDLOR~ AGAINST THE TENfu~T ON ANY MATTERS ~tL~TSOEVER &~ISING OUT OF OR IN ~~r WAY COt-l'"NECTED WITH THIS LEASE, TEE RELATIONSEIP OF TEE LJ...NDLOR:J M"TI TEE TENANT, THE TEN~~T'S USE OR OCCUPfu~CY OF TEE DEMISE~ P~EM:SES, NOT TO INTERPOSE, TO THE FULL EXTENT ?ER~ITTED BY LAW, L~~ESS TEN~~T WOULD LOSE ITS CAUSE OF ACTION BY NOT DOING SO, ~~y COu~TE~C~.IM OF -32- .. WP~TEVER NATURE OR DESCRIPTION IN ANY PROCEEDING COMMENCED BY THE LANDLORD FOR NONPAYMENT OF MINIUM RENT, PERCENTAGE RENT, ADDITIONAL RENT OR ANY OTHER AMOUNT DUE HEREUNDER, PROVIDED THE FOREGOING SHALL NOT BE CONSTRUED AS A WAIVER OF THE RIGHT OF THE TEN~~ TO ASSERT SUCH CLAIMS IN ANY SEPARATE ACTION BROUGHT BY THE TEN~~. THE FOLLOWING THREE P~~GRAPHS SET FORTH WAEL~S OF AUTH- ORITY FOR AN ATTORNEY TO CONFESS JUDGMENT AGAINST TENANT. IN G~~ING THESE WARRANTS OF ATTORNEY TO CONFESS JUDGMENTS AGAINST TENANT, TENANT HEREBY KNOWINGLY, INTENTIONALLY AND VOLtJNTA.~ILY, AND, ON THE ADVICE OF THE SEPARATE COUNSEL OF TENANT, UNCONDITION- ALLY WAIVES ANY AND ALL RIGHTS TENANT HAS OR MAY HAVE TO PRIOR NOTICE AND AN OPPORTUNITY FOR HEARING ONDER THE RESPECT::VE CON- sTITUTIoNs AND LAWS OF THE UNITED STATES AND THE COMMONw-'1:.ALT:.-I OF PENNSYLVANIA. (A) Tenant hereby empowers any prothonotary or attorney of any Court of Record to appear for Tenant in any and all actions which may be brought for Minimum Rent, Percentage Rent, Additional Rent and/or any other charges, payments, costs and expenses herein reserved as rent, or herein agreed to be paid by Tenant and/or to sign for Tenant an agreement for entering in any competent Court an amicable action or actions for the recovery of such rent or ether charges or expenses, and in said suits or in said amicable action or actions to confess judgment against Tenant for all or any part of the Minimum Rent, Percentage Rent, Additional Rent and other charges specified in this Lease and then due and unpaid, and for interest and costs together with reasonable attorney's fees. 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/or other charges shall fall due or be in arrears. (3) Upon the expiration of the then current term of this Lease or the earlier termination or surrender hereof as provided in this Lease, it shall be lawful for any attorney for Tenant, as well as for all persons claiming by, through or under Tenant, to sign an agreement for entering in any competent Court an amicable action in ejectment against Tenant and all persons claiming by, through or under Tenant and therein confess judgment of the recovery by ~and- lord of possession of the Demised Premises, for which tt~s ~ease shall be its sufficient warrant, whereupon, if Landlord so desires, a writ of possession or other appropriate writ under t~e ~u:es of Civil Procedure then in effect may issue forthwith, wit~o~t any prior writ or proceedings, provided, however, if this ~ease is terminated and the possession of the Demised Premises remain in or be restored to Tenant, Landlord shall have the right for the same default and upon any subsequent default or defaults, o~ upon the teymination of this Lease under any of the terms of ttis ~ease to brin.g one or more further amicable actions as he:::-e:.:::::e:e::-e set forth to recover possession of t~e Demised Premises a::= c~~fess -3:3- judgment for the recovery of possession of the Demised Premises as hereinabove provided. (C) In any amicable action of ejectment and/or rent, Landlord shall first cause to be filed in such action an affidavit made by him or someone acting for him, setting forth the facts necessary to authorize the entry of judgment, and, if a true copy of this Lease (and of the truth of the copy such affidavit shall be sufficient evidence) be filed in such action, it shall not be necessary to file the original as a warrant of attorney, and Tenant hereby releases to Landlord and to any and all attorneys who may appear for Tenant all errors in said proceedings and all liability thereof. If proceedings shall be commenced by Landlord to recover possession under the Acts of Assembly and Rules of Civil Procedure, either at the end of the term or upon the earlier termination of this Lease, or for non-payment of rent or any other reason, Tenant specifically waives the right to any notice to quit which may be required by the Landlord and Tenant Act of 1951 or any other statute or law. ~4.3 ADDITIONAL AND PERCENTAGE RENT: For the purposes of this ARTICLE XIV, it shall be deemed that Additional and Percentage Rent, if provision for either or both is made in this Lease, for any period after any default and entry by the Landlord would have been at a monthly rate thereafter equal to the average monthly Additional and Percentage Rent which the Tenant was obligated to pay to the Landlord under this Lease either: (i) from the Commencement Date hereof to the date of such default; or (ii) during the last three (3) years prior to the date of such default - whichever is greater. ~4.4 GUARANTORS: If this Lease shall be guaranteed on behalf of the Tenant, all of the provisions of this ?~TICLE XIV with respect to bankruptcy of the Tenant, etc., shall be deemed to read lithe Tenant or the Guarantor hereof. II ~4.5 BANKRUPTCY OR OTHER-DEFAULT: Tenant agrees that this Lease is a lease of II real property in a shopping center" and that a debtor in possession and/or trustee in bankruptcy acting pursuant to the provisions of the revised bankruptcy code, may assume this Lease only if, in addition to such other conditions of this Lease and of applicable law, said debtor in possession/trust.ee shall pr::vide Landlord with such written assurances of future performance as are acceptable to Landlord. Any closing of Tenant's business, change in product or service mix, alteration in the size of the Demised Premises, change in advertising program, change in method of operat.ion or change of Tenant's trade name by said debtor in possession/trustee shall be deemed to be a material disruption in the tenant mix and balance of the ShoDDinc Center. Landlord shall have at all times a valid lien from ~il ;entals and other sums of money becoming due hereunder from Tenant, UDon all goods, wares, - 34- equipment, fixtures, furniture and other personal property of Tenant situated on the Demised Premises, and such property shall not be removed therefrom without the consent of Landlord until all arrearages in rent as well as any and all other sums of money then due to Landlord hereunder shall first have been oaid and discharged. Upon the occurrence of any Event of Default by Tenant / Landlord may, in addition to any other remedies provided herein or by law or equity I enter upon the Demised Premises and take possession of any and all goods I wares I equipment, fixtures, furniture and other personal property of Tenant situated on the Demised Premises without liability for trespass or conversion, and sell the same with or without notice at public or private sale, with or without having such property at the sale, at which Landlord or its assigns may purchase, and apply the proceeds thereof less any and all expenses connected with the taking of possession and sale of the property, as a credit against any sums due by Tenant to Landlord. A-~y surplus shall be paid to Tenant, and Tenant agrees to pay any deficiency forthwith. Alternatively, the lien hereby granted may be foreclosed in the manner and form provided by law for foreclosure of security interest or in any other form provided by law. Any statutory lien for rent is not hereby waived, the express cont.ractual lien herein granted being in addition and supplementa:=y t.hereto. Tenant will execute upon Landlord I s request a financing statement and security agreement evidencing Landlord's security interest in Tenant's personal property and warrants to Landlord that there are no prior liens or security interests on said personal properties. In addition to other remedies available under this Lease, in the event of an occurrence of an Event of Default or, in the event of a threatened breach by Tenant of any of the covenants or provisions hereof, Landlord shall have the right of injunction and the right to in~oke any remedy allowed by law or in equity as if re-entry, summary proceedings and other remedies were not herein provided for. Mention in this Lease of any particular remedy shall not preclude Landlord from any other remedy, at law or in equity. Tenant hereby expressly waives any and all rights of redemption granted by or under any present or future laws, including possession pursuant to 5504 of the Landlord and Tenant Act of 1951, in the event Tenant is evicted or dispossessed for any cause, or in the event Landlord obtains possession of the Demised Premises. No receipt of monies by Landlord from or for the accou::t of Tenant, or from anyone in possession or occupancy of ~he Demised Premises, after the termination of this Lease shall affect any notice given Tenant prior to the receipt of such money, it being agreed that af~er (i) Landlord has repossessed the Demisec Premises, (ii) the service of notice of ~ermination, (iii) ehe commencement of a suit, or (iv) final judgement for possession of the Demised Premises, Landlord may receive and collect any rent or other amounts due Landlord and such payment shall not in a::y respect reinstate this Lease and shall not waive, affect or i~?air said possession, no~ice, suit or judgement without the express written consent of Landlord. No delay or omission of Landlord to exercise any right or remedy under this Lease, or at -35- law or in equity shall be construed as a waiver of any Event of Default. When, pursuant to the Bankruptcy Code, the Trustee or Tenant and Debtor-In-Possession shall be obligated to pay reasonable use and occupancy charges for the use of the Demised Premises or any portion thereof, such charges shall not be less than the Minimum Rent, Percentage Rent, Additional Rent and all other charges accruing hereunder. 14.6 FAILURE TO PAY, INTEREST: If at any time Tenant shall fail to pay any taxes, assessments, or liens, provide insurance or perform any act required by this Lease to be made or performed by it, or fail to pay any charge payable by Tenant or to timely discharge any other monetary obligation of Tenant required by this Lease, Landlord, without waiving or releasing Tenant from any obligation or default under this Lease, may (but shall be under no obligation to) at any time thereafter make such payment or perform such act for the account and at the exoense of Tenant. Tenant shall pay to Landlord a "late charge" of-five cents ($.05) for each dollar paid or each dollar of expense so incurred by Landlord and all sums payable by Tenant to Landlord under this Lease. All sums so paid by Landlord, all costs and expenses so incurred and all sums payable by Tenant to Landlord under this Lease shall accrue interest at a rate equal to the lesser of one and one-half (1.5%) per month or the maximum rate permitted by law, from the date of payment or incurring thereof by Landlord and shall constitute Additional Rent payable by Te~ant w~der this Lease and shall be paid by Tenant to Landlord upon demand. ._--- A.~TICLE X:V: ACCESS BY LANDLORD 15.1 RIGHT OF ENTRY: Landlord or Landlord's agents shall have the right to enter the Demised Premises at all times as may be required by an emergency situation and at all reasonable times to examine the same and to shew it to prospective purchasers or lenders and to make such inspections, repairs, alterations, improvements or additions as Landlord may deem necessary or desirable, and Landlord shall be allowed to take all material into and upon said Demised ?::-emises that may be :::-equired therefor without the same constituting an eviction of Tenant in whole or part. If repairs are required to be made by the Tenant pursuant to the terms he:::-eof or if the Tenant is required to perform a~y other obligation under this Lease, the Landlord may demand that the Tenant make such repairs or perform such obligation forthwith, and if the Tenant refuses or :leglects to c~mmence such repairs or pe:::-:ormance and complete the same with reasonable dispatch, after such demand, the Landlord may (but shall not be required so to) make or cause such repairs or performance to be done and shall not be responsible :0 the Tenan: :~r any loss or damage that may accrue to its stock or business by reason thereof. == the Landlord makes C~ causes suc~ =e?ai~s O~ pe=:cr~ance to be dc~e, oy endeavc~s 50 to CO, the Te~a~t as=e~s ~~a: :: will fo=:~w::~, on de~a~c, pay co -36- the Landlord the cost thus incurred as Additional Rent, and if it shall default in such payment, the Landlord shall have the remedies provided in ARTICLE XIV hereof. During the six (6) months prior to the expiration of the term of this Lease or any renewal term, Landlord may exhibit the Demised Premises to prospective tenants or purchasers and place upon the Demised Premises the usual signage for space rental. Nothing herein contained, however, shall be deemed or con- strued to impose upon Landlord any obligation, responsibility or liability whatsoever for the care, maintenance or repair of the building or any part thereof, except as otherwise herein specifically provided. ARTICLE XVI: TENANT'S PROPERTY 16.1 TAXES ON LEASEHOLD: Tenant shall be responsible for, and shall pay before delinquency, all municipal, county, or state taxes assessed during the term of this Lease against any leasehold in- terest or personal property of any kind owned by or placed in, upon, or about the Demised Premises by Tenant, and the Tenant shall pay all license fees and other charges which may lawfully be imposed upon the business of the Tenant. 16.2 LOSS AND DAMAGE: The Tenant agrees to use and occupy the Demised Premises and to use such other portions of the Shopping Center as it is herein given the right to use at its own risk; and that the Landlord shall have no responsibility or liability for any loss of or damage ~o the Tenant's leasehold improvements or to fixtures or other personal property of the Tenant or those claiming by, through or under the Tenant. The provisions of this Section shall apply during the whole of the term hereof, and any earlier period that Tenant may enter the Demised Premises after receiving written permission therefor from Landlord. The Tenant agrees that the Landlord shall not be responsible or liable to the Tenant, or to those claiming by, through or under the Tenant, for any loss or damage that may be occasioned by or through the acts or omissions of persons occupying adjoining premises or any part of the premises adjacent to or connecting with the Demised Premises or any of the buildings on the Shopping Center, or otherwise, or for any loss or damage resulting to the Tenant to those claiming by, through or under the Tenant, or its or their property, from the bursting, stopping or leaking of water, gas, sprinkler, sewer or steam pipes. 16.3 NOTICE BY TENANT: Tenant shall give immediate notice to Landlord in case of fire or accidents, or damage to or of defe~ts in the Demised Premises or in the building of which the Demised Premises are a part. ARTICLE XVII: HOLDING OVER, SUCCESSORS -37- - 17.1 HOLDING OVER: Any holding over by the Tenant after the expiration of the term of this Lease shall be treated as a tenancy at sufferance at one and one-half times the Minimum Rent payable immediately before said expiration of the Lease (and if varying rates are specified herein, at one and one-half times the highest such rate) plus the Percentage and Additional Rent and other charges specified herein, prorated on a daily basis, and shall otherwise be on the terms and conditions set forth in this Lease, so far as applicable. 17.2 SUCCESSORS AND ASSIGNS: Except as otherwise herein expressly provided, this Lease and all the covenants, terms, provisions and conditions herein contained shall inure to the benefit of and be binding upon the heirs, representatives, successors and assigns of each party hereto, and all covenants herein contained shall run with the land and bind any and all successors in title to Landlord. The reference contained herein to successors and assigns of the Tenant is not intended to constitute a consent to assignment by the Tenant, but has reference only to those instances in which the Landlord may lacer give consent to a particular assignment as required by the provisions of ARTICLE IX =-..hereof. ~ ARTICLE XVIII: QUIET ENJOYMENT 18.1 LANDLORD'S COVENANT: The Tenant, subject to the terms and provisions of this Lease, on payment of the rent and observing, keeping and performing all of the terms and provisions of this Lease on its part to be observed, kept" and performed, shall lawfully, peaceably and quietly have, hold, occupy and enjoy the Demised Premises during the term hereof wi :.hout hindrance or ejection by any persons lawfully claiming under the Landlord; but it is underscood and agreed that this covenant and any and all other covenants of the Landlord contained in this Lease shall be binding upon the Landlord and the Landlord's successors only with respect to breaches occurring during the Landlord's and the Landlord's successors' resnecti ve ownerSn.lD of the Landlord's interest hereunder. It is further understood and agreed that the Landlord shall in no event be liable for failure to perform any obligation under this Lease in the event the Landlord is prevented from so performing by strike, lockout, breakdown, accident, order or regulation of or by any governmental au:hcricy, or failure or supply, or inability by the exercise or r=asonable diligence to obtain supplies, parts, or employees necessa~ to furnish such ser~ices, or because of war or other emergency, or for any cause beyond the Landlord's reasonable control, or for any cause due to any act or neglect of the Tenant or its servants, agents, employees, licensees, or any person claiming ~y, through or under the Tenant, or any termination for any reasc~ of the Landlord's occupancy or the p=emises from which any se~Jice or work is being supplied by the Landlord, and in no even: sha:l the Landlord ever be liable to the Tenant for any indirect or csnsequencial damages. XIX: MISCELLk~OUS -35- 19.1 WAIVER: The waiver by Landlord of any breach of any term, covenant or condition herein contained shall not be deemed to be a waiver of any subsequent breach of the same or any other term, covenant or condition herein contained. No covenant, te=m or condition of this Lease shall be deemed to have been waived by Landlord unless such waiver shall be in writing. 1.9.2 ACCORD AND SATISFACTION: No payment by Tenant or receipt by Landlord of a lesser amount than shall be due hereunder, shall be deemed to be other than a payment on account nor shall any endorse- ment or statement on any check or any letter accompanying any check or payment as rent be given any effect" or be deemed an accord and satisfaction, and Landlord may accept such checks without prejudice to any other rights or remedies which the Landlord may have. 19.3 NO PARTNERSHIP: Landlord does not, in any way or for any purpose, become a partner of Tenant in the conduct of its business or otherwise, or j oint adventurer or a member of a j oint enterprise with Tenant. 19.4 FORCE MAJEURE: In the event that either party hereto shall be delayed or hindered in or prevented from the performance of any act required hereunder by reason of strikes, lockouts, labor troubles, inability to procure materials, failure of power, restrictive governmental laws or regulations, riots, insurrection, war, or other reason of a like nature not the fault or the party delayed in performing work or doing acts required under the terms of this Lease, then the time allowed for performance of such act shall be extended by a period equivalent to the period of such delay. The provisions of this Section 19.4 shall not operate to excuse T~nant from the prompt payment of Minimum ~ent, Percentage Rent, Additional Rent, or any other payments required by the terms of this Lease. 19.5 LANDLORD'S LIABILITY: If Landlord shall rail to perform any covenant, term or condition of this Lease upon Landlord's part to be performed, Tenant may not terminate the Lease, and Tenant's sole remedies shall be money damages (except as set forch in Section 19.16), and further, Tenant hereby waives any and all rights or claims to consequential or special damages. If Tenant shall recover a money judgement against Landlord, such judgement shall be satisfied only out or the proceeds of sale received upon execution of such judgement and levy thereon against. the right, title and interest or Landlord in the Shopping Center as the same may then be encumbered and neither Landlord nor if Landlord be a partnership, any or the part.ners comprising such partnership shall be liable for any deficiency. Notwithstanding anything herein contained to the contrary, it is specifically understood and agreed that there shall be no personal liability for any deficiency or otherwise on the part of the Landlord, its agents, representatives, employees, or any of its -39- - constituent members, partners or shareholders, or their resnective legal representatives, heirs, successors and assigns as the case may be, with respect to any of the terms, provisions, covenants and conditions of this Lease or otherwise, and that Tenant shall look solely to the estate, property and equity of Landlord (or such successor in interest) in the Shopping Center and subject to the prior rights of any mortgagees for the satisfaction of each ~~d every remedy of Tenant in the event of any breach of any of the terms, provisions, covenants and conditions of this Lease to be performed by Landlord, or in the event of any other claim which Tenant may allege against Landlord, its agents, representatives, employees, constituent members, partners or shareholders, or their respective legal representatives, heirs, successors and assigns, which exculpation of personal liability shall be absolute and without exception. In the event of the sale or other transfer of Landlord's right, title and interest in the Demised Premises or the Shopping Center, Landlord shall be released from all liability and obligations hereunder. 19.6 NOTICES AND PAYMENTS: Any notice by Tenant to Landlord must be served by certified mail, postage prepaid, addressed to Landlord at the place designated for the payment of rent, with copies to: Slater, Sandler & Shulman, P.C., One Hartford Scruare West, P.O. 30x 23l336, Hartford, CT, 06106, Attention: James H. Shulman, Es~~ire, or at such other address or addresses as Landlord may designate from time to time by written notice. Any notice by Landlord (which may be given by Landlord or Landlord's attorney or management company) to Tenant must be served by certified mail, postage oreoaid, addressed to Tenant at the Demised Premises, or at such ~ther address or addresses as Tenant may designate frcm time to time by written notice to Landlord. All notices shall be effec,::i7e upon delivery or attempted delivery in accordance with this Section 19.6. Until other~ise notified in writing, Tenant shall pay all rent reserved herein and all other sums required under this Lease by check payable to the order of Landlord, and shall for~ard the same to Landlord as herein provided. 19.7 FINANCIAL STATEMENTS: The persons signing this Lease on behalf of Tenant hereby personally represent and warrant to Landlord that the financial statements delivered to Landlord prior to the execution of this Lease properly reflect the true and cor- rect value of all the assets and liabili:ies of Tenant and Guar- antors. Tenant acknowledges that in enter~~g into this Lease, Land- lord is relying upon such statements and Tenant shall supply Land- lord updated financial statements of Te~ant and Guaran:crs each lease year and from time to time as requested by Landlord. 19.8 GUARANTORS: This Lease shall not be effective unless the persons listed in Section 1.1 (N) hereof shall execute the Guaran:y attached as Exhibit "G" of this Lease. -40- 19.9 CAPTIONS AND SECTION NUMBERS: The captions, section numbers, article numbers, and headings appearing in this Lease are inserted only as a matter of convenience, and in no way define, limit, construe, or describe the scope or intent of such sections or articles of this Lease. 19.10 DEFINITIONS: The word "Tenant" shall mean each and every person, firm or corporation mentioned as a Tenant herein, be the same one or more; and if there shall be more than one Tenant, any notice required or permitted by the terms of this Lease may be given by or to anyone thereof, and it shall have the same force and effect as if given by or to all thereof. If there shall be more than one Tenant, they shall all be bound jointly and severally. 19.11 PARTIAL INVALIDITY: If any term, covenant, or condition of this Lease or the application thereof to any person or circum- stance, shall to any extent be invalid or unenforceable, the remainder of this Lease or the application of such term, covenant, or condition of this Lease shall be valid and enforceable to the fullest extent permitted by law. 19.12 RECORDING: The Tenant agrees not to record the within Lease, but each party hereto agrees, on request of the other, to execute a Notice of Lease in recordable form, complying with anolicable Commonwealth of Pennsylvania laws, and reasonably satisfactory to Landlord's attorneys. In no event shall such document set forth the rental or other charges payable by the Tenant under this Lease; and any such document shall expressly state that it is executed pursuant to the provisions contained in this Lease, and is not intended to vary the terms and conditions of this Lease. 19.13 ENTIRE AGREEMENT: The Lease and the exhibits and riders, if any, set forth all the covenants, promises, agreements, conditions and understandings between Landlord and Tenant concerning the Demised Premises and there are no covenants, promises, agreements, conditions or understandings, either oral or written, between them other than as herein set forth. All prior communications, negot.ia- tions, arrangements, representations, agreements and understandings, whether oral, written or both, between the parties hereto, and their reoresentatives, are meroed herein and extinguished, this Leas-e superseding and cance-lling the same. Except. as herein otherwise provided, no subsequent alteration, amendment, change or addition to this Lease shall be binding upon Landlord or Tenant unless reduced to writing and executed by the party against which such subsequent alteration, amendment, change or modification is to be enforced. If any provision contained in any rider hereto is inconsistent with any printed provisions of this Lease the provision contained in such rider shall supersede said printed provision. Tenant hereby acknowledges that (a) this Lease contains no restrictive covenanes or excl~sives in ravor of Terrane; (b) this Lease shall not be deemed or ineerpreted to - 41- contain, by implication or otherwise, any warranty, representation or agreement on the part of Landlord that any department store or regional or national chain store or any other merchant shall open for business or occupy or continue to occupy any premises in or adjoining the Shopping Center during the term of this Lease or any part thereof; (c) before entering into this Lease the Tenant has made its own observations, studies, determinations and projections with respect to the Tenant's business in the Demised Premises and all other factors relevant to the Tenant's decision to enter into this Lease, including, without limitation, competition, market size, sales volume, profitability and general, so-called "demographics" -- both present and prospective; and (d) neither the Tenant nor any representative of the Tenant has relied upon any representation by (or any "conversation" with) the Landlord or any representative of the Landlord with respect to any of said factors, and Tenant hereby expressly waives all claims with respect thereto and acknowledges that Tenant is not relying on any such warranty, representation or agreement by Landlord either as a matter of inducement in entering into this Lease or as a condition of this Lease or as a covenant by Landlord. ~9.~4 SURVIVAL: Notwithstanding anything in this Lease to the cont.rary I the represent.ations and undertakings of Tenant under this Lease shall survive the expirat.ion or termination of t.his Lease regardless of the means of such expiration or termination. 19.15 APPLICABLE LAW: This Lease and the rights and obligat.ions of the parties arising hereunder shall be construed exclusively by the provisions hereof and in accordance wit.h the laws of the Commonwealt.h of Pennsylvania. 19.16 CONSENTS AND APPROVALS: Whenever Landlord's consent. or approval is required herein, such consent or approval shall not. be deemed given until Landlord has provided such consent or approval in writing. Tenant shall pay Landlord's reasonable out-of-pocket. costs, including, but not limit.ed to, at.torneys' fees incurred in connection with Tenant's request for Landlord's consent or approval, provided, however, that. Tenant shall not. be responsible for such costs t.o obtain Landlord's consent. or approval of anything relat.ed to Tenant's initial opening for business in the Demised Premises. Where the consent or approval of Landlord shall be required, such consent or aDoroval shall be aranted in Landlord's sole discretion, unles~- otherwise expr;ssly provided. With respect to any provision of ~his Lease which either expressly provides or is held to provide that Landlord shall not. unreasonably wi~hhcld or unreasonably delay any consent or approval, Tenant shall no~ be entitled to make claim for, and Tenant expressly waives claim for, damages incurred by Tenant by reason of Landlord's failure to comply, i~ being understood and agreed t~at Tenant's sole remedy shall be an action for specific performa~ce. -42- 19.17 AUTHORITY: In the event Tenant and/or the Guarantor of the Tenant's obligations hereunder shall be a corporation, the persons executing. this Lease on behalf of Tenant hereby individually 'covenant and warrant that: Tenant is a duly qualified corporation; all steps have been taken prior to the date hereof to qualify Tenant to do business in the Commonwealth of Pennsylvania; all franchise and corporate taxes have been paid to date; all future forms, reports, fees and other documents necessari to comply with applicable laws will be filed when due; and those persons executing this Lease on behalf of Tenant are duly qualified and authorized to bind, and in fact do bind, the corporation. The Tenant and/or the Guarantor shall deliver to. the Landlord, upon the execution of this Lease, a Clerk's Certificate or Secretary's Certificate in form reasonably satisfactory to the Landlord, confirming that the execution of this Lease and/or the Guarantee, as applicable, has been duly authorized. In the event Tenant hereunder shall be a partnership, either general or limited, the persons or entities executing this Lease on behalf of Tenant hereby individually covenant and warrant that: Tenant is a duly qualified partnership; all steps have been taken prior to the date hereof to qualify Tenant to do business in the Commonwealth of Pennsylvania, if required by law; all franchise and partnership taxes have been paid to date i all future forms, reports, fees and other documents necessary- to comply with applicable law will be filed when due; and those entities executing this Lease on behalf of the partnership are duly qualified to bind, and in fact do bind, the partnership. 19.18 WHEN LEASE BECOMES EFFECTIVE: This Lease shall be effective only when it is signed and delivered by both Landlord and Tenant. The Tenant's submission of a signed lease for review by the Landlord does not give the Tenant any interest, right or option in the Demised Premises. Upon such full execution and delivery, all terms, provisions, covenants and obligations of the parties hereto shall be immediately in full force and effecc, and enforceable in accordance with the terms hereof. 19.19 INTERPRETATION: Both parties have read this Lease and had the opportunity to employ legal counsel and negotiate changes to the Lease. The Lease is the joint product of the parties and, in the event of any ambiguity herein, no infe:-ence shall be crawn against a pa:-ty by reason of document p:-eparation. 19.20 BROKERS: Tenant represents and warrants to Landlord that no broker or agent negotiated or was instrumental in negotiating or consummati~g this Lease excepting only Realtor, as set foyth in Section 1.1 (P). Realtor is representing Landlord on this Lease, and Realtor's commission shall be oaid bv Landlord. Tenant knows of no other real estate brokey or a~ent w~o is or might be entitled to a commission or compensation in connection with this Lease. All fees, commissions or other compensation payable to any broker oy -43- -- . ' agent. of Tenant shall be paid by Tenant. Tenant shall hold Landlord harmless from all damages and shall indemnify Landlord for all damages paid or incurred by'Landlord resulting from any claims asserted against Landlord by broke=s or agents claiming through Tenant. Tenant acknowledges that Tenant has been informed that pe=son(s) associated with Realtor may have or may acquire an ownership interest in the Shopping Center, and Tenant acknowledges by signing this Lease that such ownership interest shall not affect the terms, conditions or validity of this Lease. 19.21 LANDLORD'S FEES AND EXPENSES: Unless prohibited by applic- able law, the Tenant agrees to pay to the Landlord the amount of all legal fees and expenses incurred by the Landlord arising out of or resulting f=om any act or omission by the Tenant with respect to this Lease or the Demised Premises, including without limitation, any breach by the Tenant of its obligations hereunder. Further, if Tenant shall request the Landlord's consent or joinder in any instrument pertaining to this Lease, the Tenant agrees promptly to reimburse the Landlord for the legal fees incurred by the Landlord in processing such request, whether or not the Landlord complies therewith; and if the Tenant shall fail promptly so to reimburse the Landlord, same shall be deemed to be a default in the Tenant's monetary obligations unde~ this Lease. 19.22 OTHER AGREEMENTS: The Tenant hereby warrants and represents that neither this Lease nor the cperation of the Demised Premises hereunder violates the provisions of any inst::-ument heretofore executed by the Tenant or any affiliate or the Tenant, including, without limitation, any so-called radius r~striction contained in any such instrument. 19.23 SHIFT CLAUSE: Intentionally Omitted. ARTICLE XX: SECURITY AND RENT DEPOSITS 20.01 AMOUNT OF SECURITY DEPOSIT: Tenant, contemporaneously with the execution of this Lease, has deposited with Landlord the sum set forth in Section 1.1 (K) as the Security Deposit, the receipt of which is hereby acknowledged by Landlord. The Security Deposit shall be held by Landlo:::-d for the du=ation of the t.erm hereof, without liability for i~terest, as security for the faithful performance by Tenan~ of all the terms, covenants, conditions and obligations of this Lease by said Tenant to be kept and performed during the term hereof. Tenant specifically agrees that any deposit held hereunder by Landlord may be commingled with any othe= funds of Landlord. 20.02 USE AND RETURN OF SECURITY DEPOSIT: Should Tenant fail to keep or perform any of t~e terms, covenants, and conditions of this Lease to be kept and performed by Tenant, Landlord may appropriate and apply the entire Ses~rity Deposit, or so much thereof as may be necessary, to compensa:e Landlord for loss or damage susta ned by La::clG:-d. due ta s~c::. b::-eac::, w:. thOL:t. p~ej~J.dij=e to its u:r~he::-- -~4- rights 'and remedies. Should the entire Security Deposit, or any portion thereof, be appropriated and applied by Landlord in accordance with the provisions hereof, then Tenant shall, upon the written demand of Landlord, forthwith remit to Landlord a sufficient amount in cash to restore said de'Dosit to the original sum deposited. - Landlord shall have the same rights and remedies for the non- payment by Tenant of any amounts due on account of the Security Deposit as Landlord has hereunder for the failure of Tenant to pay the Minimum Rent. Provided Tenant shall not then be in default, Landlord shall return the Security Deposit, without interest, or so much thereof as shall not have theretofore been applied in accord- ance with the terms of this Article XX, to Tenant within 30 days after the last to occur of: (i) the exoiration or earlier termina- tion of the term hereof or (ii) the surrender of possession of the Demised Premises by Tenant to Landlord. Notwithstanding the fore- going, if the amounts to be paid by Tenant to Landlord, such as Percentage Rent for the last lease year, Tenant's pro rata share of Real Estate Taxes, or the like, have not been determined as of the expiration or earlier termination of this Lease, then Landlord may retain such portion or the Security Deposit as Landlord be- lieves in the exercise of Landlord's good faith judgment is an appropriate reserve against such future liability of Tenant and return only the balance of the Security Deposit pending the final determination and payment of all such amounts by Tenant to Landlord. If Lanclord conveys Landlord's interest under this Lease, the Security Deposit (or any part thereof not previously applied in accordance with this Article XX) may be turned over by Landlord to Landlord's grantee, and, if so turned over, Tenant agrees to look solely to such grantee for proper application of the Security Deposit in accordance with the terms of this ~~ticle XX, and the return thereof in accordance therewith. The holder of a mortgage on property which includes the Demised Premises shall not be responsible to Tenant for the return or application of any such Security Deposit, whether or not it succeeds to the posicion of Landlord hereunder, unless such Security Deposit shall actually have been received by such holder. 20.03 RENT DEPOSIT: Te~ant, contemporaneously with the execution of this Lease has deposited with Landlord the sum set forth in Section 1.1 (L) to be held and applied to the fi=st month's rent due under this Lease. ARTICLE XXI: TENANT COVENANTS, EASEMENTS 21.01 TENANT COVENANTS: Notwithstanding any~hing to the contra=y contained herein, this ~ease is subject to and made on the underscanding that ~and:ord has granted and/c~ will grant ce=tain restrictions and exclusive use covenants to cthe= tenants of the -~5- . ' Shopping Center (herein the "Tenant Covenants") . Tenant acknowledges that Tenant's use and/or occupancy of the Demised Premises in violation of any current or future Tenant Covenants would subject Landlord to substantial damages and as such Tenant acknowledges and agrees that any such violation by Tenant of any such Tenant Covenants shall constitute a default hereunder entitling Landlord to cancel this Lease or enjoin Tenant from violating such Tenant Covenants, or exercise any of the remedies stated in Article XIV hereof and any other remedies available under the law of the Commonweal th of Pennsylvania. . Nothing contained in this Section 21.01 shall be construed to permit Tenant to exoand the use restrictions set forth in Section 1.1 (M) hereof. Landlord hereby states that Tenant's use clause as defined in Section 1.1 (M) does not and will not violate any Tenant covenants granted to other Tenants of the Shopping Center. 21.02 EASEMENTS: The Shopping Center is and/or may be encumbered and/or benefitted from time to time by certain easements, development and operating covenants, and similar agreements. Tenant agrees that it shall abide by any such agreement, including any such agreement as may be amended from time to time in Landlord's sole discretion. Landlord shall have the right to enter into and/or terminate any such agreement in Landlord's sole disc::-etion. IN WITNESS Wh~REOF, Landlord and Tenant have executed this Lease as of the day and year first above written. Signed, Sealed and Delivered in the presence of: ~ I LANDLORD: SILVER SPRING CENTER LIMITED P.~TNERSHIP By: ABS Development Company, its General Partne::- ~ President /J,rt U I ' :/ Q , I /, . vI'!) , /. /. -,- t / : .:. ~ ,.-' , ,/- . ",,' . . ~ TENANT: / ,/ . / , ;' / ~~' /:2-'/' , ~.-/ ",." .(:/ . --:;-,' ,/-' '/ - - :..------ " .' .~" "--.' ,.., / ,/- .. '....~..r ~/. . _" ...~_ U" .' I / / ./ ,! (;' ('\ .. \ -f j! - ;..--- P~rt Da::-e -46- - (Sa/24-?ETRD.LS~1 4/22/94 (3 :20pml -47- -------- S:\.rH'B 11' 1\ 1, " \ l() ~. . ' EXHIBIT ~-1 ~L~GAL DESCRIPTION , A.B.S. - 53.2436 AC?~S BEGINNING at a point on the Northern right-oi-way line of U.S. Route '#11 (Carlisle Pike) at the intersection of the Northern right-of-way line of U.S.Route #11 (Carlisle Pike) and the Eastern right-of-.ay line of Traffic Route #114 (Hogesto1J'n Road); thence along the Eastern right-of-way line of Traffic Route 111~ (Hogestown Road) on a curve, curving to the left having a radius of 928.51 feet, an arc length of 226.65 feet to a point; thence along same, North 19 degrees 17 minutes 30 seconds West, a distance of 142.76 feet to a point; thence along same North 10 degrees 45 minutes 39 seconds West, a distance of 202.24 feet to a point; .thence along same North 19 degrees 17 minutes 30 seconds West, a distance of 245.00 feet to a point on the Southern right-of-~ay line of Sporting Green Drive; thence along the Southern right-of- way line of Sporting Green Drive, North 70 degrees 42 minutes 30 seconds East, a distance of 116.56 feet to a point; thence along same on a curve, curving to the left, having a radius of 330.00 feet, an arc length of 204.31 feet to a point on the Southern and Eastern right-oi-way line of Sporting Green Drive; thence along the Easter~ right-oi-way line of Sporting Green Drive, North 35 degrees 14 minutes 10 seconds East, a distance of 225.06 feet to a point; thence along same, North 29 degrees 31 minutes 32 seconds East, a distance of 50.25 feet to a point; thence along same on a curve, curving to the left, having a radius of 325.00 feet, an arc lensth of 217.34 feet to a point; thence along same, North 03 degrees O~ minutes 45 seconds West, a distance of 404.46 feet to a point; thence along same on a curve, curving to the right, having a radius of 275.00 feet, an arc length of 236.97 feet to a point; thence along same, North 46 degrees 17 minutes 35 seconds East, a distance of 25.94 feet to a point on the Western line of lands of Sporting Green Associates; thence along lands of Sporting Green Associates, SOUth 43 degrees 42 ~inutes 25 seconds East, a distance of 463.00 feet to a point on the Southern line of lands of Sporting Gree~ Associates; thence along the Southern line of lands of Sporting Green Associates, North 70 degrees 59 minutes 50 seconds East, ~ distance of 327.60 feet to a point on the lo~ water mark of the Conodoguinet Creek; thence along the lo~ water mark of the Conodoguinet Creek, South 60 degrees 02 minutes 02 seconds East, ~ distance of 86.53 feet to a point on the Western line of la~ds no~ or late of Christian E. and Sarah Eo Thomas; thence along thE Western line of lands no~ or late of Christian E. and Sarah E. Thomas, South 00 degrees 59 minutes 04 seconds West, a distance o~ 338.50 feet to a point on the Southern right-or-way line of Cree~ Road; thence along the Southern right-oi-way line of Creek Road, North 83 degrees 35 minutes 39 seconds East, a di&tance of J6~.lc feet to a point; thence along same, North 78 degrees ~J minutes 51 seconds East, D distance of 31.~0 feet t~ 4 point on the Weste! right-of-way line of Silver Drive; thence along the ~estern righ1 Of-way line of silver Drive, South 13 degrees 33 minutes 05 seconc East, a di&tance of 864..75 feet to a point on the Northern righ1 of-way line of Circle Drive; thence along the Northern right-of-w; line of Circle Drive, South 86 degrees 18 minutes 57 .econds Wes' . distance of 210.58 feet to a point on the Western line of Ianl now or late of James Pagliaro extended; thence along the Weste line of lands now or late of James Pagliaro, South 00 degrees minutes 57 seconds West, a distance of 382.87 feet to a point the Northern line of lands n01J or late of the Silver Spri Community Fire Company; thence along the Northern line of lands n or late of the Silver Spring Community Fire Company and t Northern line of lands now or late of Richard L. Radabaugh, Sou 88 degrees 31 minutes 30 seconds West, a distance of ~00.74 feet a point on the Western line of lands now or late of Richard Radabaugh; thence along the Western line of lands now or late Richard L. Radabaugh, South 00 degrees 59 minutes 04 seconds ~es a distance of 157.69 feet to a point on the Northern right-of-_ line of D.S.Route #11 (Carlisle Pike); thence along the NorthE right-of-way line of D.S.Route #11 (Carlisle Pike) on a cur' curving to the left, having a radius of 5,779.65 feet, an ~ length of 252.33 feet to a point; thence along same, South degrees 30 minutes 30 seconds West, a distance of 227.77 feet tl point; thence along same, North 84 degrees 29 minutes 30 seC01 West, a distance of 30.00 feet to a point; thence along same, So' 85 degrees 30 ~inutes 30 seconds West, a distance of 547.64 feet a point, said point being the place of beginning. CONT~INING 53.2436 acres. Excepti."l.g the1-e....-=ra:J the pa=c el of land desc:dbeo he:-eaft:er: 11:1:)00'1:)1(;; a~ . pol."~ .n t.h. )ror-J'lu'T'\ r1Vl'll:-of~r l11'la or O.J.J.o~~a 1.1 ..14 ,oLI'Il: ),oai.n.q t.he ICN~""'t.a.n'l COr.'lar .r O\It '~c.l Ie; Cjunc. &10''''. UlI 'or-~.rn ri",t-or___r or O.I."oU':1 11 by . GY--v,/ ~rv1nq ~o ~~e lar~, ~.y~ . ~'41~ ot I,''''.'S t.a' Ln4 an are l.~~ ot 10'.14 t..t to . po1n~1 ~~.nce oontlnainq 1101'11 aLae. .OU~ I' 6~'" '0 &inuta. '0 .~=~ w..~, .. ~l.~nel. ".1' ta.t tD the lo~~e&.tern oornar or OYt 'er:a1 '" th.n~. alOnt ~t 'Lorea1 " ~ a ~, CPI.l..r'V1.l'lq ~ Ua lart. ~.....1.nq . ncUl.I.a or .p. co rut. and IU\ aro h"crt-"'- .t 11.14 r..t t.= a poU,t, tllln~1 oonti.nl.4.inq &101'11 lLae, JrortJ'l 04 ~.q-:-." 17 .11r\.lt.. )0 .a.e.ol"ldl ...t. a 4.i.~C1' et 110.00 r,.t to . p.o1.I'I':; the/'I,CI -.ol'\~il'lutr.q alone; .~, J~~ .. d~... '0 ai..I'l",tu '0 ..~NU W"t. .. Ci.unoe or 2'11." r...t t4 t..::.': I"J I ""',"e. alQl'\q t..ot '1 tJ'\. toUo-ri~ C'OIJ.:"'" u-.6 ii.t.uOJeH I 1.) '0 rt~ 04 ~e<rr-' H a11T\lt.. 20 'Icend. '.It. .. ..iIUnel ot JlLI7 t..t, 1) )ror-~ ., d~... 20 .ir=t.. )C 'toQ~. 1.&1'. . th~c. .r 10'.11 t,.t, :n Iou t.."\ 00 ~~... 00 ILi 1'noI t..a I to I.eo~ W..t.. . a.t n..a..ne a .c 4' .11 t..t, C) . 0\.1 t..... '0 ( 60fT' .. 00 al~t.. to . ,oem" U.t. . ci.~.' ct 12\1,,: t..t, J) lifort..'\ 00 .~... 00 ai.mlt.. .0 l-.coPl4. ...t. . t1.t.&..Me of '1'. " ~..tl . ') . 0 Q t.."\ . , 0 ~ 00 . t nvt: &Jl 00 ..c:ond I La.t, a c.!.u~ ot 1. H..' t..-t. 7 ) 'OI,J~ 00 C~,.. CO al1"lU~.. '0 .,c:ol"ldl ".It., , 41.t.A.../'lc:. or '7'7. H t..t, . ) .ou':..... tc (.~... 00 ...:. ~,..,Jt ~ . OC '.O:.l"Idl L"~. a 4u~ tiC l".U t...t ~o . ,oint ." u-.. W..tarl"l ri9!'1t~C-""'T line e! Ill..,... :- tn'iv,/ , thenc. alenq ~. .a.t.r~ rlfht-or-..y l1n_ ot 111v.t Orlv., .OU~ 1,) d-.qT." ]J al,,"tu 05 '.C:~1'\4. Zutr . Ch':.&nc:a .t 1.1"19 t..t t:>> ~e .o~.~ l1nl of 1.nd. n~ or lata or J~.a "vll&r~l ~'ftel alo"', landa ftOW or latl .t ..,11aro, .~~ II d.qr... 11 .1ftv~.. I' ..corwb ...~. . 4l11t:1P'le1 or 110.S1 t..t to . poolntl U.....la co,,~.L"\JJ.nq alone; ...., ,o"t.h 00 4~a&. ,U alnuta. " ..ea~ ....t, . '1.~anc. ." H 2." r.at to ~. Mor-:herTl 111\. or hNS.. ft~ tr- tn.. 0: the .Uver I,d"" ~oW'l'\.hlp rua O:ra.p_nYl UlII'\CI al.1\.f ~ ~ortb.~ 111'\' ot la~.. .r the .11..r ',r~q ~o~.~i, rlr_ C"'lnT .1'\4 a1chard L. ..4.b.~,h. 50ath II ~~... '1 alnut.a '0 ....ftd.. W..t., . cUltanca' of '00.1. r..t ~ ~. llor-...hN.tarn a'n'\.r .t Ol.at .&%'oe1 Ie; tha.nc. alon, CNt hrvll ,e, JroTUl '2 dafr'" 22 .1lt.~ 1.0 ..eoNS. w..t. . C1at..&1'lce at '..10 '.Iut t. & poLntl ~&1\oe oent.i1\v.1n9 e.lOI'l'll IU' loeth IS deoq":'.'. ')0 airNt.. '0 "COI'\U ...t, . ~u.nc. of US.~l tutl ~coe c=ntiM.ll"f .l.cl~ I&.~. lo\lU. 04. d..-p.... at a..i.n~tH ~Cl .ee.ond. I.&rt, & .Cat&1\e. .f 110.97 r..t t.a k pci1'l~, Ulenc. by . INn-.,. C'C..r'T~ ~ ~ 1Att, ~vi!k . r-a.41lo&.a e.t to.oo het aM LI'\ -.r: 1.~..h trt.l1Ln !-..., ~ .& ...~tj ..ku po1:rt "'1..nf tu ,laDe ,'t ~wl",., . ". . '.. . .'. ~J..b' tlIa. ~,1 f ~,r: 12 ~ 1'e~t~ ~ .~ . .0~ I~ ~ Y! .'- xnrr3IT B LANDLORD' S WO~ Landlord's Work is limited to the work desc=ibed herein. All work not classified as Landlord's Work is Tenant's Work. 1. Landlord shall install a minimum of lS tons of HVAC, including ducting and distribution, in the Demised Premises. 2. Landlord shall install one 2200 CFM roof mounted exhause fan with duc:work to ceiling and two 12 x 12 eggcrate ceiling grills. 3. Other than Landlord's Work as set forth above, Tenant agrees to take Delivery of Possession of the Demised Premises in its present "as-is" condition. M~sce11an~ous~ Landlord shall pay to Tenant a tenant improvement allowance of $10,000 upon the later of: (a) completion of Tenant's Work, or (0) Tenant commencing to actually pay rent h~reunder, and provided that Tenant shall have certified to Landlord that Tenant has expended at least $10,000 on its Tenant Work in an Application for Payment. Such Application for Payment 3hall be accompanied by waivers of liens and other documentation from Tenant's Contractor, and all Subcontractors and Sub- subcontractors as may be reasonably required by the Owner. In addition, such Application for Payment shall contain a certification by the TenL~t that all Contractors, Subcontractors and Sub-subcontrac~ora have been oaid in full for their ~ork and no written claims of me~hanics' or materialmens' liens have been submitted to the Tenant as of the date of such Application for Payment, that the ConCractor has no knowledge of any filed mechanics' or materialmens' lien 'With respect to Tenant's Work, and that there is no known basis for the filing of any mechanical or materialmens' liens on Tenant's Work. . . EXHIBIT C PERCENTAGE RENT STATEMENT [Date] Silver Spring Center Limited Partnership c/o ABS Development Company 410 Asylum Street, Suite 215 Hartford, CT 06103 RE: Percentage Rent Statement for month of , 19 Gentlemen: Reference is made to our lease dated , 1991 for certain premises located in the shopping ce~ter ~10wn as Silver Spring Commons, Silver Spring, Pennsylvania (the RLease"). This statement is being provided to you pursuant to Section 2.6 of the Lease. Terms utilized as defined terms herein shall have the meanings as defined in the Lease. For the calendar month ending , 199__, total Gross Sales from the Demised Premises equa:led $ Therefore, total Gross Sales from the Demisec Premises for the current calendar year total $ through said date. I hereby certify that I have carefully reviewed the books and records of Tenant relating to the Gross Sales figures set forth above, and that the same are true and correc~ to the best of my knowledge and belief. Very truly yours, [Tenant] . EXHIBIT D RULES AND REGULATIONS Tenant agrees as follows: ~) All loading and unloading shall be through the rear entrance service door or other designated entry specified by Landlord. 2) All garbage and refuse shall be kept in a container that has a lid capable of totally fitting over the opening and shall be kept in such a sanitary condition as to prevent vermin, insec'Cs and offensive odors. 3) Tenant shall not burn trash or garbage of any kind in or about the Demised Premises. 4) No radio, television or other communication or electronic device shall be installed by Tenant on the roof, any exterior wall or common area of the Shopping Center without Landlord's consent thereto in writing, which consent shall be in Landlord's sole and subjective discretion. 5) No loud speakers, television, phonograph, radio or other noise making device may be used in such a manner as to be heard outside the Demised Premises without Landlord's consent thereto in writing, which consent shall be in Landlord's sole and subjective discretion. 6) Tenant shall maintain a temperature sufficiently high to prevent freezing of water in pipes and fixtures. 7) Tenant and Tenant's employees shall park their cars and other vehicles only in those areas designated for that pu=pose by the Landlord, and Landlord shall have the right, at all times, t.o impose fines upon Tenant or to tow such cars or other vehicles that fail to comply with this regulation at Tenant's sole expense. 8) Tenant shall install and maintain fire extinguishers per local and st.ate codes. I 03-11-1~~~ l~'-~ EXHIBIT E SIGN CRITERIA PRIMARY TENANT SIGN A. The Primary Tenant Sign shall consist of individual internally illuminated channel letters mounted to the face of the canopy and secured to the plywood sheathing as provided in the. different canopy conditions. The letters shall be wired through the canopy (provide watertight seals at each penetration of the canopy surface) to an enclosed transformer box mounted above the canopy soffit. The sign unit shall be complete and tested prior to installation of the canopy. B. The Primary Tenant Sign unit shall be comprised of all individual letters, within the signage Space above the Oemised Premises. C. All individual letters shall be fabricated with. 063" aluminum returns, 4 If deep minimum, welded to a .090" back. Provide a routed exterior finished edge. Interior seam shall be filled and caulked to seal from wat~r penetration. The 4" aluminum returns of the channel letters shall be painted Grip-Guard paint by Wyandotte products. Wing: holes shall be 7/811 opening and mounting holes shall be 1/4" opening. Channe.l letter faces shall be fabricated from 3/16" translucent ~olored Plexiglas. Provide a one 1 'f high plastic (nj ewelite") triln edge band all around. Screws shall be painted to match the trim edge band. D. All signs shall have concealed aluminum attachment devices, concealed electrical wiring and shall be designed aru fabricated in accordance with the local siqn ordinances and U: construction requirements. Each letter of the sign unit shall be internally illuminated with 15mm double stroke neo tubing wired through watertight flex material conduit to transformer box. A transformer box enclosure shall be .06 gauge aluminum,mounted inside the canopy. A junction box 'ofiJ be supplied at each Demised Premises by Landlord and aJ wiring to junction boxes shall be concealed and enclosed metal conduit. E. Tenant shall install, at its own expense, one under canopy sign in accordance with .the attached drawing labeled "Unde Canopy Sign." " EXHIBIT F TENANT'S WORK APPROVAL PROCEDURE: The Landlord will provide Tenant with scale drawings showing the general features of the Demised Premises and locations of toilet room, air ducts, electrical outlets, and sprinkler system (if instal'led) . Tenant shall supply Landlord with Tenant's interior working draw- ings and plans prior to making any alterations or improvements to the Demised Premises. The Landlord reserves the right to approve such plans for the purpose of insuring such planned changes will not overload the existing electrical system, degrade the air flow, sprinkler system, 'or weaken the structural integrity of the Demised Premises or otherwise be detrimental to the Demised Premises or the adjoining stores in the Shopping Center, and to make sure that such plans conform to the architectural design standards of the project. Such approval shall not be unreasonably withheld and shall be promptly responded to by Landlord, Landlord's contractor and/or architect. CONSTRUCTION: All Tenant's work shall be at Tenant's expense. Work ~~dertaken by Tenant shall be handled in the following manner: a. Structural alterations such as plumbing, elect=ical work, additional walls or bathrooms, vents, grease traps etc., may be awarded to any operating licensed contractor approved by state or local authority and whose livelihood is derived primarily from such work. b. Construction personnel hired by Landlord may be used by Tenant, at Tenant's expense, to complete some or all of Tenant's interior upfit, providing such additional employment will not conflict with the Landlord's completion of the Shopping Center and Tenant enters a separate agreement with the contractor. Landlord will not be resoonsible for or oblicrated to Tenant or contractor to intercede on either parties behalf, should disputes arise over work or payment thereof. TENANT ~nDITIONS: The following work, should Tenant desire, shall be done at Tenant's expense. 1. :nstallation and service cost of telephone. 2. Installation of a intercom, radio or T.V. and associated wiring. 3. Ceiling light covers not standard to project. 4. Display'window platforms, elevated floors, room partitions or special rooms. 5. Store signs. 6. Automatic doors. 7. If approved, any special exterior fascia treatment, and any stained, etched or covered glass or doors. 8. Complete plans showing all details of interior design, electrical and mechanical items which affect Landlord's work, if required by Landlord in order to prepare preliminary plans, including special venting or air handling equipment necessary for tenants occupancy and use. 9. All interior walls and curtain wall within the Demised Premises except as provided by Landlord's work. 10. All signs ir. or on the Demised Premises including construction, furnishing and installation. No sign shall be erected without prior written approval of the Landlord or Landlord's architect. OTHER: Tenant may add to this list at Tenant's discretion, so long as any such improvements are coordinated with the Landlord beforehand. (58/24 -pet) , . t~xh', bi-t 13 J,: \' ~' - -" " ". PURClIASE AND SAT.E..AGREEMENT THIS PURCHASE AND SALE AGREEMENT (the "Agreement") is made and executed this 28th day of Junet 1996. by and between the Silver Spring Center .. Limited Partnership, a Connecticut limited partnership ~itb offices at Suite 2575, One Atlanta PlaZa, 950 East Paccs Ferry Road, Atlanta, Georgia 30326 (the "Seller") and Silver Spring Commons Holdings, Inc., a Pennsylvania corporation with offices nt Sui~ 200, 259 'R::!.dnor-Chester Road, Radnor. Pennsylvania 19087 (the "Buyer"). WHEREAS, Seller is the owner in fee simple of the real estate m.ore particularly described on Exhibit "An attacbed hereLo and incorporo.ted herein by reference, the buildings, improvements and structures thereon (except for . the buildings, improvem~nts and atructures locatGsl 0%1 that part of the Real Property which is subject to ground; leases) and the. easements, access rights, and appurtenances and hereditaments thereto (all being hereinafter collectively referred to as the "Real Property")j and WHEREAS. Seller is the owner of the personal properly lnore porticularly describEd on Exhibit "B" attached hereto and ineorpora~ herein by referenee, located on and used in connec~on with the Real Property (sucb personal property being hereinafter collectively referred to ~ the tePersonal Propert~);and WHEREAS, the Real Properly and the Personal. Property comprise a two hundred sixty nine thouSand tbl'ee hundred two (269,302) net rentable square "foot shopping center on thirty-seven and nine hundred four thousandtb:5 (87.904). acres more OT less wbich are located on the Northeast comer of United States Route 11 and Pennsylvama Route 114 in Silver Spring Township, Cumberland County, ." Pennsylvania and known as Silver Spring Commons; and WHEREAS, Seller is the landlord under the tenant leases and ground leases affecting the Property, which 2l"ound leases and tenant leases (there are no subleases known to 01' approved by Seller except as permitted in the Amendment afLease ~ated July 14, 1994 between Seller as Landlord and M.J. Todd) Inc. as Tenant) are listed and described on Exhibit "C" attacbed heretoa:nd iricorporaud herQin by Teference (the "Leases"); and WHEREAS~ Sener has entered into and is the obligee under certain service; '~upply, Jnainte~ce, leasing and management agreements if any affecting the Personal Property and the. Real Property which semce, supp~y, maintenance. lea5ing and management agreements are listed and described on Exhibit illY' attached hereto and iuco1"P9rated herein by referen ee (the "CoJlf.,ract.s~; and , . . ., . WHEREAS, Seller is the owner of certain rights and be'nefili relatirig to the Property, including all development rights, permits, licenses. wananties (including but not limited to tlu~ Toofwarranties contained on Exhibit "L" attached hereto and . incorporated herein by reference), guarantees, indemnities and deposits} (these tights / . . of SeUer's c:oUI13el required by Section 6.5(a)(viii) hereof may be rendered under Connecticut law. ,I 11.6 ~me is of the Essence. Time is of the essence with respect to each and every provision of this Agreemeni::--. 11. 7 Performance on Business Days. If any date for the oCCUXTence of any event. or act under Lhi.s Agreement falls on n Saturday or Sunday or legal holiday in " the Commonwealth of Pennsylvania, then the time for the occurrence of such event or net sball be ~xtended to the next succeeding buSiness day. 11.8 Entire ~eement. This Agreement, together with all the Exbibits attached hereto and incorporated by reference herein., constitutes the entire undertaking between the parties hereto, and supersedes any and all prior agreements, arrangements and \1Ildertaki~ between the parties. 11.9 Counterparts. 'I'his Agrep.mp.nt may be executed in any number of identical coJ.1I1terparts by the parties hereto, each of which shall collectively constitute one agreement. but in making proof of this 'Agreemen~ it shall not be necessary to produce or account ~or more than one such counterpart. IN Wl'l'NESS WHEREOF, the parlies hereto have caused tbis Agreement U:I be executed the day mid year above first written, intending to be legally bound hereby. . SELLER: SILVER SPRING CENTER LIMITED PARTNERSHIP By: AHOLD REAL ESTATE COMPANY Its' only gener partner and its dulyautho . gent BUYER: ~ILVER SPRING COMMONS HOLDINGS, INC. ftM~ Q7J;"'" - -/~ . . ~'. By:" 4tZ~. .. Name: bV/tka.-F: /"1~-Yl.' . Title: M?c ;ff~F1>:.t/'~ . . AlL-STATE'~ LEGAL 800-222-0510 ED11 RECYCLED C>\h'lblt C . ... . ,.u . , 'APR-28-1999 10: 46 .~ -.- MJRG,=lN LEW I 5 PH I L'IDELPi-I I A 215 963 5293 P.02/12 ASSIGNl\tENT AND ASSUl\1PTION OF LEASES OJ, This Assignment and Assumption of Leases ("Assiinment") is entered into as of this.().....:t:Ja.. day of January, 1999. by SILVER SPRING COMMONS HOLDINGS. IXC., n Pen..'1Sylvania cOlporation, with an address clo 259 Radnor-Chester Road, Suite 200. Radnor, P A 19087, Attn: Kathleen Hands (" Assii"orlt), and EASTERN RETAIL HOLDIXGS LIMITED P..\RTNERSHIP, a Delaware limiled plU"tnership. with an address of LMRES Real Estate Advisers. Inc.. clo Legg Mason Real Estate Services, Inc., 1735 Market Street, 12th Floor, Philadelphia, PA 19103 (" Assignee'I). For valuable consideration, the parties h.ereto. each intending to be legally bound and to bind their respective successors and assigns, helCb)' covenant and agree as follows. Back21'Ound - A. Assignor is the o"mer of that certain real property knoVvn as Silver Spring Commons Shopping Center situated in the Township of Silver Spring, County of Cumberland, Pennsylvania (the '~ea1 Property''). The Real Property is more particularly described on Exhibit CIA'" attached hereto and made a parthereof. B. In ccnneetion with the contribution of the leasehold estate in the Real Property pursuant to that certain Contribution Agreement, dated as of December 30. 1998 (the "Agreement"). by and among Assignor. 2S contributor. and Assignee, as acquiror~ Assignor has agreed to assign its interest in the leases pertaining to the Real Property to Assignee. arid Assignee has agreed to assume and accept the same. ." NOW, THEREFORE, in consideration of the premises. the promises and conditions contained herem and in the Agreement, and other good and valuable consideration in hand paid by Assignee, to Assignor, the receipt and sufficiency of which arc hereby acknowledged, the parties agree as follows: , ". ~-~.. ~ 1. Assignor hereby assigns. transfers and sets over unto Assignee, and Assignee hereby accepts. all Assignor's rights. title and interest in and to those certiin leases. which are listed in Exhibit WB" attached hereto and made a part hereOf ("Leases "), which Leases pertain to various portions of that certain Real Property which Assignor has contemporaneously herewith conveyed unto Assignee. This Assignment includes (i) all sureties and guaranties of the Leases. (ii) the right to collect from all tenants under the Leases (collectively. .'Tenants') all tents 2nd other payments whether heretofore or hereafter pa.yab1e (to be applied as set forth in the Agreement). (Hi) the right to enforce all obligations of the rn=i,v254J8 .1 ., '; PPR-28-1993 10:47 !>IORG.q.~ LE1.dIS PHILClDELPnIA 215 963 5299 p.a3/12 ... Tenants under the Leases and all sureties and guaranties, and (iv) all security deposits paid by the tenants under the Leases. 2. Assignee hereby assumes and agrees to perfonn all agreements and obligations of the 'landlord with respect to the Leases arising on and after the date hereof. However. Assignor, and not Assignee, shall be responsible for the observance and performance of all agreements and obligations of the landlord with respect to the Leases arising prior to the date hercbf. 3. Nothing herein contained is intended to create agreements or obligations of the landlord to any Tenant under any Lease. 4. Assignor shall defend, protect, indemnify and save harmless. Assignee from and agalnst any and a111iabilities, suits, actions, losses, danJ.3ges. costs a.T1d expenses. including without limitation counsel fees. suffered or incurred by Assignee resulting from or relating to any failure by Assignor to observe or perform any of itS agreements or obligations under the Leases prior to the date hereof. Assignee shall defend. protect, indemnify and save harmless Assignor from and against any and an liabilities. suits, actions, losses. damages, costs and expenses. including, without limitation counsel fees, suffered or incurred by Assignor resulting from or relating to any failure by Assignee to observe or perfo"rm any of its agreements or obligations under the Leases on or after the date hereof. [Execution Page FoUows] PIlO,.v254:lU APR-29-1993 10:47 MORGAN LEWI S PHI LADELPHI A 215 963 5299 ?04/12 , .. IN WITNESS WHEREOF. Assignor and Assignee have executed this Assignment as of the date first above written. sn. VER SPRING COMMONS HOLDINGS. INC., a Pennsylvania corporation By: Mj(~ Name: fJ1<J\lIA V. ~o,:o Title: Vie!!.. I"lf:.f.5IDZ-"";T" EASTE~'f RETAIL HOLDINGS LOOTED PARTNERSHIP, a Delaware limited partnership By: UI.s.RES Real Estate Advisers. Inc., its general partner Br-~~ Name: j),a"'6 1/. ~Q Title: \l1C.e.. ~It't:J 11Jt.Nr flllV.n54JU . -3~ . - APR-ZS-19'39 1e: 49 ~ LE.VllS PHl\.P.~tA \'llCv..~~_1 ~ '215 SS3 5'293 p.05/12 ,. -4- - 0- .- APR-28-1999 10:49 MORGAI:-l LEW I S p~ I LP.DELPH I A 215 953 5299 P.06/12 ;' .... ,.. -. . SCDDULB A Legal Description Lot No.2 Silver- Spring CommonJ All tha.t certain 10-:', uac:t: cr parcel ot land situated. in S1lver ~pring ~c~h1p, ~Q~land COQn~y, >>.nnsy~vania; ~ounaed and c!$$C1:'U:led as.%ollows: . Jeg1%U1ug at eo point on 'the eastern right-Q!-way J.ine of S.R. 011.4, said point' be1nC] loea'ted en. hundred eighty and fif~y"six bundr~d"t:h~ :!ae't: north of the nOl".thern ~i9'ht.-ct-way lina elf the Car:lisle Pike ((S.R. 001.:1); thence rro~ salcl point: ot lJeg!nu:Ln9'1 ~1 the eastern rigbt-ct-way line elf S.~. 0114, the fQ110wing :tour (4) co\U:se:$ :.). ~y ." Q\U:V. t:o tho 1,Qt1:., havi:1g.a radius of nine hu-ndred 't~enty-ei9~t-and tifty..one hun~edths feet (A = .'28.51' ), an arc distance elf forty-six an4 nine hundredths r.et C1/~ = ~'.C9') 2) North nineteen de~e.s, seventeen Jl\1nut,s, thirty Clee~na:s Wes~ eN ~9' ~'71 30" W) a distance at one hundred tQ1"ty-twc and sevent;y-.six hui1dradths feet U.,U.. '1 G') 3) No:ri:h ten degrees,. forty-f i ve t11.nut:es, 'thirty-nine seeonds West. eN 1.0' 45' 39" W) a distance of two hundt"ed 'two and twentY-four hUharedt.h.s fee~ (202 .2.~) 4] Nor~ hineteen deg:'eo::J I aeven't$en ~nut:ec, 'th~y cocon<:ls. li1c~le. (X j.1- 1 "1 ~ :3 011 W) a distance of two hunarecl fotty feat: (2"0400') t:o 8. point,thence. 1>y 'the soutbet'n rig-ht-of-way . line o~ SpQrting. GreenDr~ve, 'the ~ollowing five (5) courses ~) North sixty-eight d~~esJ f1f~.e~ ~tnut.("S, sevell sec:on<ls Ea.st (~ 68~ 1$' 01" 11) a dis"eanee of one hundred sixteeh an4 sixty-seven hundredths fe~t (~:L6.~"') 2) by a e'Urve 1:0 the 3.e~t.,h~vin9" a ~aelius of three bun~ed thirty feet (R = 330.0Cl'), an arc distance Qf two hundred to\1r and 'thirty-one hun~ed~s fe.~ (2Q4.3~') 3) Nc~h ~h!~-fiv~ d.grees~ fourteen minutes, tan seconds East (:tl 35" 3..' 10'~ 11) a aiatanee of two hundred t.vent.y-five and six hundredths feet. (225 .06') 4) North tW6hty-nine ~e~ees, thi:rty-one min~1:es, 't:hirty-~wo $ec~nds 1:a.~t. eN '2P" 31' 32" E) .a'distance of fifty ana t.""'en~y-five hunc1redths feet. (50.:5') 5) by a curve to the left, havineJ a radius of -ehree. hundrec:l tweni:;y...f1ve feet (It ::; 325.00')3 an arc distance of two hundred seventeen . and thirty-tour hundredths teet (AIL = %17.34')to a point; then~e by the ~ou~he~ righe-Qf-~ay line-~f Sporting Green D~ive and by Lot No. i ~or~h three de~reas, four 1l1inut:.es, fo~t.y-:!ive seconds West (ll 0.311 04 t 4~" W) a d.istance of four hundred fol.U: and rot't.y-six hundre4ths ,.-teet C,,04.4S')' -to a point; thence. by Lot No.1 the following five (5) courses.l) by a e~rva 1:e !:he :right, havihg a radius of two hundred, seventy-five feet (~ ~ 275.0QI) an a~c distance of seventy-nine and fifty-two hundredths teet (Alii = 79.3.21) ~) Due East eN '0' 00' CQ" E) a distance elt two h~na~e~fo~ty-one.~d ninc~y-ninG hundredths tQa~ (241.99') ~} South fo~~y.threa degrees, forty-two ~inut:esl twenty- five seconds East. (S 0&3- U,I ~Sn E) a dist:a.nc.e of one hundred twenty and ten hundr~dths feet (.12 0 .10') 4) Sou~h eighty-six degrees I twenty-tQur "tlIinutesl forty-five seconds East (S SS' 2.( r ",Sir E) a d;i,$~ance of o'l'\e-hundrad seventy-foul:' ~nd ni~e~y-two -hundred1:'hs ~ee't EXHZ!IT "A14 5001. .143 P,\Ge 654 APR-28-1999 10:49 . MORGAN LEWIS PHILADELPHIA 215 963 5299 P.07/12 ~I . , . If ,. sca'!J)OI.B A CONn.RtrED (3.7"..'Z'), (erroneously shown on Plan as North ei9'ht:y..six c1e~ees,. ~~y~t1ve m1nu~~, ~orty~~iqh~.sacQn4s E~st a distance of qn~- hundred seventy-tour and runet.y-one hundredths feet) 5) ltorth eighty-four 4Q~e&s, t.went.y-two minutes,. seven 36c:on48 EAat: eN 8.f'. 2%' 01" E) a cU,s'bmc::e of "CWo hund=,ed 'twant.y,,~.ven anel. t:hil:'t.y-seven hundredths teet (22'1.37')to it paint at or nea.r the 'top 'Of J2nk of t:he Conoc1cgui:\et c::reeJc; "thence dovn ealc3. creek south sirty degraes, two ~J.nu~es, t.vc seconds Eas~ (8 '0' OZ' 02'1 2l) IS. diGt:a.n:o of eic;hty"'six and fifty-'tbrse hundJ:o.dths teet (16.53') to a point;' thence by 1;md. tlc'U' cr late of: du:istian and Sara Thomas S01,1'!:h .zero degrees, :ifty-nine ~inutes, four s.conds West (8 00. .591 Q4" If) a. distanoe of three hundred thirty-eight and fifty hundred~s. feet (338.50') ~a a point en ~he ~eu~~~h ~igh~-of-way line of C=eek Drive; 'thence by said rigbt-of-vay the ~ollovi1\9' two (2) courses 1) No~h eighty-three d~ees, thirty-rive mlnu~es, thirty-nine seconds Eas~ (11 83' 35' 3tl' :1:) a.. ~ista.nce. or 'three. hun<h'ed sd.xi:.y- four and niJie~een hundrecl1:hs feet (364.19') 2) North se"enty..eiC]ht Clegroes, ~O%'t:i"'~4. minutes, fi:!'ty-onia seconOs East: (N' 80 "'3' $1" 1:) .. distance caf thirty-one al\d ~orty hundredths ~eet: (~J..40') to a >>o1nt;~Qnce ~y the western right-of-way line 0: silver Drlve SQuth th.1rteen dSg'.;'eee, i:hi~1:y-'t~oe minutes, fi V€t seconds East. C S 13. 33' OS" JS) a distance of s1:IC hundratS seven.ty and ninety-six hUhd'redths feet (G70."') to a po 1nt. i 'thence :by Lot No. '7 the. follo~il1CJ' e..ight. (8) CQut'ses 1) Due. Wut (Il 9Q- 00' 00" W) ~ c:ii$i:al\ee. Qt one hun~ed ninety-nine and eighteen hundre4ths feet (~"~~8') 2) Due: N'crtb, ell 00' 00. qo" E) a distance of seventy-seven and . ., seventy-nine hundredths feet (77.""') 3) -Due W$St eN '.9..ti'.cbT~"D~""1f) c!.. ~i.s"tance of on. hunared sevent.y-five ana sixty-saven hundredths ~eet: (~"'5. 6'7') 4) Due SQU,th (8 00. CO' 0'0" J:) a di.st.a:\ee of se.venty- seven and se.ven~y-nine hundredths feet (7'7.'S') 5) t)ue West. eN' to. QO' 00" tIl) a cu.st~u\ee c~ two h\U'lel~ed 1:w~nty and sl)Cty...two hundredths fe.et (220. G2') 6) D.ue North (N 00. 00' 00" Z) a (l!..'tan~e of fort:y-si~ and sixt.een hU1'ldredt:hs fea-e (46.1") 7) South eiihty- rive Q.g..e.~1 't:hirt.y ~ih\1t.QS, t:hi,..t:.y seconds West (S es. 40' ~O" W) a distan.ce of six hundred six and eigh-ey-one nunclreaths feeT:: (G 0 6 _ B11 ) e) South tour degrees I blenty-nine 1nin\1tes, thirty. seconds Ea.st (S 04- 29' 30" E) a distanee of ~ivehwtdre.d eighty-two and sixty-seven hundredths :tee.~ (5 B3. 67') to a point on 'the line. of Le~ Ne. 5; ~hQnce by Lot No. 5 ana Lot No. 3 South eighty-five deqrse$,thirty ~inutes, thirty se'conds We'st: (S 8fJ'..30' -30" ,It) a distance of two h~ndred thirty-four and tWenty~s8ven hundredths feet (23'.~7') ~o ~ ~ein~; thQ~ce by Lot No. 3 south eightY-fiye degrees, eighteGn Jl1inut:es, forty-five seconds 'West (S SSG 181 -45" 19') a distance of t\lO hundre.d forty-seven and seven hundl:'edths fee~ (247.07') t.o a point on 'the eas'tet:l'l, ~j,9'ht:.-of'-way line of S.'R.. 0114, th~ place of J3eginning. saidt.:raet contains 1,469,627.64. squa.re fGet. Ol: 33.j4.acres. .. " . Being Lot No, 2 on a Final Limited Resubdivisio #~ and #~ tQ~ silve~ spring CO~Qr.s ~s re~crded the Recorder of Oeed of and for ClJmberland <:OUr.t Plan Book -!2- Vol~ma ___ Page -A- EJOnBI! ".A" . ::-...,# .-i..i oj ~ll!~ ~.~'i . , . - , APR-28-1999 HI: sa 215 963 5299 P.09/12 . . . . .' . .. .. I . MORGA."i LEW I S PHI L.ADELPHI A SCHBD'OLE A c:omll'aSD I.:EGAL DESCRIPIION OUVE GAWEN . Lor #3. 8U,"1'''BR SPltma COMMONS SILVER SPlUNG TOWNSBlP. CUMBERLAND COUNXY . P~"'SYLV~ .. . :Bl!G1NNING at a point, said point being the intersection of the Northem :1i.'1e of the Carlisle Fike (S.ltOOll) with tl-..e Eastern Une of S.:R.0114j th~ec in a~ottherly direction along she wtem line of S.P..0114, by a curv~~ curving to tllo l~ ~v1ng a radiu$ ol 928.51 feet and an ~ leqth of 180.56 feel to a point.:aid poim being theintus=cl1ot\ of the Southern line ofa50'lUgb.t~"Way and tho Eutam line of S~. 0114; thenee alani the Southern line of th= SO' Right--ot-Way the following two (2) c~ur= and distances: 1. North as de&~ 18 minute.s 45 seconds East. a c:tistaJ:!ce orz47.07 feet to 2. point, 2. North as de8t~ 30 minutes SO second! East, a distance 0(228.78 feet .to a point; . . : The~ along the We.stem line of l.ot lIS, South 04 degrees 29 minutes 30 aecClnas ~.t. a. dbtanee of 180.00 ;feet to a point on ~e Northern line of 'the . CatlUle ~ then= along the Northern line. of the Ca:1ble Pike, South 8S. degree! 30 minute3 30 ~on& West, 1. c1i$taice of 45S.80 El:et to a polat" :.aid point being the place of beginning. CONTAINING 83,'2.24.3737 squue feet OR 1.911 Acres. . .' .. 'EXRIBll' If AU .. .... J' APR-28-1999 10:50 MORGq~ LEWIS PnILADEUPHIA. 215 .963 5299 P.23/12 ." . . : . . . . . S~ A con:nrom . . LEGAL D:ESCPJPTION . .. ' . . . .'TACO!ELL I BOT 'NNOW , LOT ~ OF SILVER SPPJNG COlrtMONS SIL V:E1t SPlUNG TO\VNSRlP J CU'MBEPJ..AND CO"ONrY . JlENNSYL V ANlA . . , JJ.:C nIA'I' cimTAIN tract or parcel of land' situate on the Northea:st Corner at :acute . . 1 L4 (5 .'R.O 114) tnd the Carlisle })ike .(S IltOOll) in che ~O\1in.s!'Jp or Silver Spring. Count). of Cumberland, Commonwealth of Penns,lvWa, more p3!tl:utarly boundd:l. and descdb~ as follows to wit: , . .. . BEGINNING .AT .A point on the Ndnh~m PJgrtc-ot.Way Jlne of lhc CarJi.$1c Pikes uld polD.t b~i 510.00 teet ~t ot the intetsecticn of Route 114 and the Cull!1e Pike; thenc.e,~ol1$ . lands cl Lot 1i3 01 Silve: S;rin; CommoM, North 04 c!egrw 29 mi.nU~ 30 ~nds Yes:' a distance ot 180.00 feet to ;, poInt, S2ld point b~ing on the SO-foot wide access easement benve.en . :Lot 'S and Lot n ot Silva: Spring Commons; then~ alana the UQfCmentioned ~ easement, . North 85 degre.e$ SO minutes SO seconds East" a dlsWtc:e of2S-4.06 feet to a point; ~ence along a 92.00 fool aeces! easement for the entrance to Silver Spring Commons flom the Cu1i.$1c Pjke~ South 04 dcgtccs 29 mInutes :;0 secoads ~t, a. dis!an~ or 100.00 f~ ~ a ~1nt; thence on . ,2. curve, cutmg to the right, having a nd~ or ~o.oo feet ~d an 'ucle::tgt..h or 38.S4 feet to' a ~t go. the Nonh-...m lUght:of.Way line of the Cullile Pike; th~ aloft; the Nortbem.1Ug'ht- . of...Way line of the ,Carlisle Pi1ce, South 8S degre~ gO minutes .30 s~nd1 W~t; a cnsWtce of 142.22 feet to a. point; thence along same, North 04 d~rees 29 minutes 30 seeends W~tl a &tanc:e of 30.00 feet to a point; th~nce along $anie, South 85 degrees SO mIau~ SO ~~ond$ Wen, ~ Clistance of 91.84 feet to a pointJ s~d point beIng the PLACE OF BzGINNING. . . .. . , ., B:EING mowN AS Lot #5" ~. ~hoVJn or. th~ Final ResubdivmocPlar. of u~ ;3, #4 and 15 I SUver ~'prlng Commons. "" ~ . -- .' .. CON'I'AlNtN:G 501361:31 ~~UU& feet OR 1.'294 1a!:1'e$.. .. . ' . , . . . . .. '. . :t."QIl:str "A'l ." . , ~m( i43 PACE 657 APR-28-1993 10:51 MO~GAN LEWIS PHILADELPHIA 215 963 5299 P.10/12 . . . . .:. . , . : . SaIBOUIJi: J.. CO~ LEGAL DESCP.IP'rION ocrr PMCEL #6 1!EGDlNIllG at a !=,oint en tho Northern right-of-way linQ o~ tJ'.S. Rout.e 11 and the West.a:r:n line of land now or la. te of Ric:h~d L. P.adaj,..ugh; thence along the liQrthe.rn ri9hi:.-of-way line ot. 'U.s. Rout:e J.l by a curva, eu,rving to t:be left, having a ra41us of 5/715.~5 feet and an arc length ot 146.79 feet to ~& line of land ot Lot 17; then~o aJ.ong Lot #' by. a CUX'VCI, curvinQ' to the right, ba.ving a radiu5of-SO.OO feet and an arc leng1:h of 77..63 ~.et 'to a point; 'thence continuing along. same, North 04 d~ees 29 nitlutes 30 se.<;onds 'West.,. a distanc:. .ot 160.9'7 teet t.o a })<:d~t.; 1:hQt\co continuing alonq s~mel North as d~ee.s 30 ~inutes 30 seconas i:as~, a aic'(:ar.~e of 1.65.31. feet to a'point; . thence continlling along- same sou~ 42 degrees 22" zinutes 10 seconds East, a distanea or 74.10 feet to the Northwest corner or la~ds now or late of Richa~d L. ~d~~~u~h; then~e ~LC"g l~ds 01 ~a4abaugh. South 00 degrees 59 minutes 04 seconds lles't., a dist.ance of 157.69 feet t:o a Foint, said l)oint bei.n9' 'the place of BEGINNING. CONTAINING 41,797..~3 Square J'eet or 0.959 Aeres , ' EXRIlSlt "A" BOOK i43 PAtE 658 . . . 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P,12 , ' ALL-STAn;" ,-cGAL gOO-222-0SI0 REcvCLECl [x h'( b'\ -t 1) Exhibit D INTRODUCTION We, the members of the Eleventh Statewide Investigating Grand Jury, having received evidence pertaining to allegations regarding violations of the Crimes Code and of the Controlled Substance, Drug, Device and Cosmetic Act, occurring in and around Cumberland and Dauphin Counties, Pennsylvania, pursuant to Notice of Submission of Investigation No. 17, do hereby make the following findings of fact and recommendation of charges: FINDINGS OF FACT This Grand Jury heard evidence concerning an investigation being conducted by the Office of Attorney General, Bureau of Narcotics Investigation and Drug Control into marijuana trafficking in Cumberland and Dauphin Counties centered around a George Dare. Agent Ronald Diller of the Office of Attorney General, Bureau of Narcotics Investigation and Drug Control, testified that on September 18, 1996, he debriefed a cooperating individual (hereinafter "CI") concerning the marijuana distribution of Paul Brad!. Agent Diller provided the name of the CI to the Eleventh Statewide Investigating Grand Jury and indicated that the CI would be available _ for testimony at trial if necessary. The CI has purchased marijuana from Bradt sporadically for fifteen years. The CI stated that Bradl runs a parking lot located at 218 North Second Street in Harrisburg, Dauphin County, Pennsylvania, and that Bradt's office is located directly across from the parking lot at 217 North Second Street. Agent Diller testified that he utilized the CI to make numerous controll~d purchases of marijuana from Paul Bradl at both the parking lot located at 218 North Second Street and Bradl's office located at 217 North Second Street, Harrisburg, Dauphin County, Pennsylvania. In each instance, the CI was searched prior to the transaction. provided with official funds in order to make the transaction, and observed by surveillance traveling to the loc~tion at 217 North Second Street or 218 North Second Street. After each transaction, the CI gave the quantity of suspected marijuana to Agent Diller. Agent Diller debriefed the CI about the transaction itself. On March 13, 1997, Paul Bradl testified before the Grand Jury pursuant to a order of immunity entered by G. Thomas Gates, Supervising Judge of the Eleventh Statewide Investigating Grand Jury. Bradl testified concerning a search warrant which had been executed on his office on January 31, 1997, and said that the police seized seven pounds of marijuana which he had received from George Dare the previous day, January 30, 1997. Dare had met Bradl at the McDonald's Restaurant on North Front Street in Harrisburg and fronted the marijuana to him. Bradl was then to pay Dare-from the money he received by selling it. Dare told Bradl that Bradl owed him $13,650 for this marijuana. Bradl testified that he received quantities of marijuana from George Dare on four previous occasions: May, July, September and November, 1996. Bradl testified that all of these transactions occurred at the McDonald's Restaurant on North Front Street in Harrisburg and that the weight ranged from three pounds to seven pounds. Bradl testified that Dare fronted the marijuana to him each time. Bradl would meet Dare from time to time at McDonald's or at the Tavern on the Hill Restaurant in -2- Enola, Cumberland County, Pennsylvania, where he would make payments to Dare for the marijuana previously received. Paul Bradl testified concerning his marijuana involvement with a John Velj~sic. Bradl testified that he obtained quarter pound quantities of marijuana from John Veljasic up until Veljasic's arrest on unrelated charges in Dauphin County in April, 1996. After Veljasic's arrest on these un'related charges Veljasic was placed in the Dauphin County Prison. Bradl testified that Veljasic called Bradl while Veljasic was in the Dauphin County Prison and asked Bradl to retrieve a quantity of marijuana from Veljasic's residence in Harrisburg, Dauphin County, Pennsylvania. Bradl testified that he subsequently traveled to Veljasic's residence, entered the residence with the key he had and removed the marijuana which was located in a navy blue Rubbermaid storage container. Bradl testified that the storage container contained multiple pounds of marijuana. Bradl removed this from Veljasic's residence, and after Veljasic's release on bail from Dauphin County Prison, Bradl provided this quantity of marijuana to Veljasic. Agent Diller testified that on February 18, 1997, he provided $3,000 to Paul Bradl for delivery to George Dare which represented partial payment for the marijuana received on January 3D, 1997. Bradl met Dare at the Wendy's Restaurant on North Front Street in Harrisburg. Surveillance subsequently followed both of them to the store of Port Dare, the son of George Dare, located at a shopping center in Silver Springs Township, Cumberland County, Pennsylvania. Surveillance then followed Bradl and George Dare back to Harrisburg. Bradl subsequently gave 6~ pounds of marijuana to Agent Diller. He said that he received this marijuana from George Dare and Port Dare -3- . while in Port Dare's store. Bradl also gave Agent Diller a slip of paper whi,ch had the figure $18,460 in Dare's handwriting. Bradl advised Agent Diller that this ,was the current balance Bradl owed to Dare. Agent Diller subsequently field tested. the suspected marijuana which tested positive for the presence of marijuana. Agent Diller testified that on April 24, 1997, he executed a sealed search warrant on the residence of George Dare at 4290 Wimbledon Drive, Harrisburg, Dauphin County, Pennsylvania. Agent Diller seized approximately eighteen pounds of marijuana and approximately $52,000. Agent Diller obtained a statement from George Dare concerning Dare's marijuana distribution. Dare advised that there was approximately 18 pounds of marijuana in the basement of the residence. Dare also said that there was approximately $53,000 located in a briefcase upstairs in a closet. Dare stated that just prior to Easter he received approximately 75 pounds of marijuana from Jeremy Green at a motel located in Valley Forge, Pennsylvania. Dare said that Port Dare accompanied him on this trip. Dare advised that he paid Jeremy $71,250 for this 75 pounds of marijuana. Dare stated he brought this marijuana to his Wimbledon Drive address. Dare advised that of the 75 pounds of marijuana received from Jeremy, 18 pounds were of a lesser quality then the remaining 57 pounds. Dare told Diller that he supplied Kim Millar with 20 pounds of this marijuana and Raymond Miller with 37 - pounds of this marijuana. Dare also told Agent Diller that he had received 60 pounds of marijuana from Jeremy Green around the first of the year (1997) and that Green brought this marijuana to Dare's residence. -4- On May 15, 1997, George Dare testified before the Grand Jury pursuant to~ an Order of Immunity entered by G. Thomas Gates, Supervising Judge of the f::leventh Statewide Investigating Grand Jury. George Dare testified concerning the execution of a search warrant at a residence he shared with his son, Port Dare, at 4290 Wimbledon Drive, Harrisburg, Pennsylvania, on April 24, 1997. Dare testified that approximately 18 . pounds of marijuana and $53,000 in United States Currency were seized from this residence, and both the marijuana and money belonged to him. Dare testified that this 18 pounds of marijuana was part of 75 pounds of marijuana which he received from Jeremy Green on Easter Sunday (March 30, 1997) at the Comfort Inn located near King of Prussia off of the Pennsylvania Turnpike. George Dare and his son, Port Dare, traveled to this Comfort Inn where they met with Jeremy Green who provided them with. 75 pounds of marijuana. Jeremy Green charged George Dare $950 per pound. Dare paid Green $71,250 for the 75 pounds of marijuana. George Dare testified that 37 pounds of this marijuana was distributed to Raymond Miller who resides in Northern Dauphin County. Miller received this 37 pounds of marijuana the Monday or Tuesday after Easter Sunday at Dare's residence. Dare testified that Miller gave him $20,000 towards this 37 pounds of marijuana. Dare charged Miller $1,500 per pound of marijuana. George Dare testified that he distributed fifteen pounds to Kim Millar from Durham, North Carolina. This transaction occurred a week and a half to two weeks after Easter Sunday at Exit 126 of Interstate 95 in Fredericksburg, Virginia. Dare. testified that Millar paid him $10,000 to $15,000 towards this marijuana. Dare charged Millar $1,600.00 per pound. George Dare testified that he provided 5 pounds of -5- marijuana to Dan Deichmiller who resides in Perry County. This transaction occurred.at Dare's residence approximately one week after Easter Sunday. Dare, charged Deichmiller $1.600 per pound of marijuana. George Dare testified that in January of 1997 he received fifty-eight pounds of marijuana from Jeremy Green at George Dare's residence on Wimbledon Drive in Harrisburg. Green charged Dare $900 to $950 per pound and Dare paid cash for all 58 pounds of marijuana. George Dare testified concerning the distribution of this 58 pounds of marijuana received in January, 1997. Dare sent 15 pounds to Kim Millar in Durham, North Carolina by UPS courier service. Dare gave 13 or 14 pounds of marijuana to Raymond Miller behind Port Dare's Pet Shop in Silver Springs Township, Cumberland County. Approximately 12 pounds of this marijuana was delivered by Port Dare to Richard Bair. Daniel Deichmiller received 4 pounds of this marijuana. George Dare testified that in September or October of 1996 Jeremy Green delivered 22 pounds of marijuana to him. Jeremy Green took the train to Harrisburg and George Dare picked him up at the train station and transported him to Dare's residence, where the transaction took place. Jeremy Green charged George Dare $850 per pound for this 22 pounds. George Dare testified that this entire 22 pounds was distributed to Raymond Miller at George Dare's residence on Wimbledon Drive in Harrisburg. George Dare testified that he had a separate source of marijuana in Tucson, Arizona, arranged through his son, Mark Dare. George Dare testified that in the -6- beginning of 1995 he began obtaining quantities of marijuana in Arizona. Dare testified on six separate occasions he received quantities of marijuana from Arizona" the first transaction was 60 pounds and the other 5 transactions were 100 pounds each. George Dare would fly to Arizona, obtain the marijuana in Tucson, Arizona, rent a vehicle and then transport the marijuana back to Pennsylvania by the rental vehicle. Dare was charged $850 per pound of marijuana received. Dare testified that the last shipment of marijuana which reached Pennsylvania occurred in October of 1996. Port Dare transported the marijuana back to Pennsylvania on one of the trips. George Dare testified he initially distributed these shipments of marijuana received from Tucson, Arizona, to four separate customers: Daniel Deichmiller, Raymond Miller, Kim Millar and John Veljasic. George Dare testified that following each shipment of marijuana transported from Arizona to Pennsylvania, all four of these individuals would receive at least 10 pounds of marijuana. In April, 1996, John Veljasic was arrested and after Veljasic's arrest Dare started dealing directly with Paul Brad!. Dare testified that Paul Bradl was Veljasic's customer prior to Veljasic's arrest. George Dare testified that in the Spring of 1996 he or his son, Port Dare, started dealing -directly with Rick Bair. Prior to this Rick Bair was a customer of Daniel Deichmiller. Dare testified that he paid Deichmiller $10,000 in order to deal directly with Rick Bair. Dare testified that the transactions with Deichmiller and Raymond Miller all occurred within Dauphin County. Dare testified that the transactions with Kim Millar would occur either in Durham, North Carolina, or Millar would meet Dare half way between' North Carolina and Pennsylvania. -7- Agent Jeffrey Mohn testified concerning a statement he took from Port Dare on April 24, 1997, the date of the execution of search warrants on the residence of George and Port Dare and the business of Port Dare. Agent Mohn testified that Port Dare was advised of his Miranda rights prior to making a statement, waived these rights and spoke with Agent Mohn and Agent Guy Petrillo of the Internal Revenue Service.' Port Dare advised Agent Mohn that the second time his father, George Dare, obtained marijuana from Jeremy Green, this transaction occurred at a Comfort Inn on Route 202 near the King of Prussia Mall. Port Dare stated that he and his father traveled to this location where they met with Jeremy Green at which time Jeremy Green provided them with 60 pounds of marijuana. Jeremy Green charged George Dare $900 per pound and George Dare paid cash for all 60 pounds of marijuana. Port Dare advised Agent Mohn that the 60 pounds of marijuana was transported to their residence at 4290 . Wimbledon Drive in Harrisburg. Port Dare advised Agent Mohn that he himself provided marijuana, which he received from his father, to Rick Bair, who lived in Lebanon. Port Dare stated that of the first shipment of marijuana that his father received from Jeremy Green, Port Dare gave 10 pounds of this marijuana to Rick Bair and that at the time of this delivery Rick Bair owed $15,000. Port Dare advised that Rick Bair payed $13,000 approximately a month ago and still owed him $12,000. Port Dare stated that he provided quantities of marijuana to Rick Bair prior to January of 1997. Agent Diller testified concerning the execution of a search warrant on April 24, 1997, at the residence of Raymond Miller in Millersburg,. Dauphin County, -8- Pennsylvania. Agent Diller testified that the residence had been "sanitized" and speculated that somebody had contacted Raymond Miller prior to the execution of the search warrant. Agent Diller found empty gallon size bags containing marijuana residue in a trash container outside of the residence. Agent Diller also located an item in Raymond Miller's wallet which contained a phone number for George Dare and the figures 37 by 2200, which Agent Diller testified was consistent with the amount of marijuana which George Dare provided to Raymond Miller several days after Easter Sunday (March 30, 1997). Agent Diller testified concerning the subsequent cooperation of George Dare and Port Dare in this investigation. Specifically, on April 24, 1997, George Dare agreed to have conversations recorded with other targets of this investigation following his interview by a Deputy Attorney General. Agent Diller then utilized George Dare and made a recorded telephone call to Jeremy Green. During this recorded conversation Jeremy Green advised that he was putting things together and that he would know something by Saturday, April 26, 1997 (referring to a subsequent shipment of marijuana). George Dare told Jeremy Green that he didn't have to worry about the 18 pounds, that Dare got rid of them. Jeremy asked how many Dare wanted and Dare advised Jeremy that he wanted 75 of them (referring to 75 pounds of marijuana). Agent Diller testified that on April 29, 1997, George Dare advised him that he had contact with Jeremy Green on April 26 and 27, 1997. Green advised George Dare that he would be ready to obtain 75 pounds of marijuana real soon and that the price would be $1,025 per pound. On April 30, 1997, Agent Diller utilized George Dare and made a recorded -9- telephone call to Jeremy Green. During this conversation Green told Dare he didn't think that anything would happen now or in the future, because Green didn't want to be a part of it any longer. On May 1, 1997, Agent Diller utilized Port Dare in a cooperating capacity and recorded a conversation between Port Dare and Raymond Miller which occurred in Harrisburg, Dauphin County, Pennsylvania. Miller advised that the police came to see him that same night (referring to April 24, 1997) but they didn't find anything. Miller said they just got some empty bags and some records. Miller said he can explain the records away by being thirty-seven acres of property that he was paying $2,200 for. Port Dare asked Miller about the $25,000 owed to his father. Miller said the money is . hidden and he can't get to it right now but that Danny Deichmiller had $12,000 of cash that Miller had given Deichmiller for the purchase of property and Port Dare should go to Deichmiller and collect the $12,000. Miller advised that he would get the remainder of the money to the Dares by the end of the month. Miller said after Port Dare collects the $12,000 from Danny the balance would be $13,125. Miller advised Port Dare that he wasn't "real anxious to do anything right now" (referring to obtaining additional quantities of marijuana) but he had called his "man" and told him he'd see him in about six months or a year. On May 2, 1997, Agent Diller utilized Port Dare in a cooperating capacity and directed Port Dare to meet with Richard Bair at a truck stop located off of Interstate 81 at Route 39 in Dauphin County. Port Dare met with Richard Bair atwhich time Richard Bair gave Port Dare $11,000 in United States currency which was money owed towards -10- - ,. :1 AI Bair's $13,750 drug debt. Bair advised Port Dare that Bair only has one customer, 'his son-in-law, his son-in-law has two customers, and that he'll have the remainder of the money within a few weeks. Bair also expressed a desire to have Dare deliver an additional 5 to 10 pounds of marijuana to him. On May 2, 1997, Agent Diller utilized Port Dare in a cooperating capacity and sent him to the residence of Dan Deichmiller to attempt to obtain money from Deichmiller for previous marijuana debts. Port Dare went to Deichmiller's residence, which is in Perry County, Pennsylvania, at which time Deichmiller said he couldn't get all of the l1Joney right now and that he would meet the Dare's the next morning (May 3, 1997). On May 3,1997, Agent Diller observed Dan Deichmi/ler meet with George and Port Dare at Deichmiller's residence at which time Deichmiller gave them $7,000 in United States currency. George Dare and Port Dare told Agent Diller that Deichmiller would be in touch in the near future with the remaining $5,000. Deichmiller advised them that he wasn't worried about the drug charges and was more concerned about a financial investigation which would show that he had more property and money than income. -11- ~~ '-~) \' - -- -r ~\ -5 ,~~ I; i~r $-~ l r- " ~ ~ ( ~\ \ I r,." 0)/ ~o ~) r ~.~ J~.- . , o _c:--.. r-J . ). .J ~ ,- J (J'o. -<:s c! ']. J? r -S) t .------ ---- SHERIFF'S RETURN - REGULAR C~SE'NO: 2001-04151 P COMMONWEALTH OF PENNSYLVANIA: COUNTY OF CUMBERLAND LMRES REAL ESTATE ADVISERS INC VS PORT DARE ETC ET AL ROBERT FINK , Sheriff or Deputy Sheriff of Cumberland County, Pennsylvania, who being duly sworn according to law, says, the within CONFESSION OF JUDGMENT was served upon DARE PORT the DEFENDANT , at 1125:00 HOURS, on the 9th day of July 2001 STORE D-1 at 6520 CARLISLE PIKE MECHANICSBURG, PA 17055 by handing to MATT RUBLE, EMPLOYEE a true and attested copy of CONFESSION OF JUDGMENT together with and at the same time directing His attention to the contents thereof. Sheriff's Costs: Docketing Service Affidavit Surcharge 18.00 5.85 .00 10.00 .00 33.85 So Answers: r~<~ R. Thomas Kline Sworn and Subscribed to before 07/10/2001 JOHNSON DUFFIE STEWART & WEIDN BY'~~~~'4~ Deput Sherlff me this ~ 3/Ut day of ~ .2~~ A.~. _ ~.. -'- ~0/7 Pro notary C~SE'Nu: 2001-04151 P SHERIFF'S RETURN - REGULAR COMMONWEALTH OF PENNSYLVANIA: COUNTY OF CUMBERLAND LMRES REAL ESTATE ADVISERS INC VS PORT DARE ETC ET AL ROBERT FINK Cumberland County, Pennsylvania, who being duly sworn according to law, , Sheriff or Deputy Sheriff of DARE PORT T/A PETLAND says, the within CONFESSION OF JUDGMENT was served upon the DEFENDANT at 6520 CARLISLE PIKE , at 1125:00 HOURS, on the 9th day of July MECHANICSBURG, PA 17055 , 2001 STORE D-1 by handing to MATT RUBLE, EMPLOYEE a true and attested copy of CONFESSION OF JUDGMENT together with and at the same time directing His attention to the contents thereof. Sheriff's Costs: Docketing Service Affidavit Surcharge 6.00 .00 .00 10.00 .00 16.00 Sworn and Subscribed to before me this .< 3 ~ day of Q-'.PJ ,,2cv I A. D . g/~o1:;~~1 A~ So Answers: .~~<~J R. Thomas Kline 07/10/2001 JOHNSON DUFFIE STEWART & WEIDN BY~x?~S Deputy Sheriff ~ Johnson, Duffie, Stewart & Weidner By: David J. Lanza 1.0. No. 55782 301 Market Street P. O. Box 109 Lemoyne, Pennsylvania 17043-0109 (717) 761-4540 Attorneys for Plaintiff LMRES REAL ESTATE ADVISERS, INC., Va EASTERN RETAIL HOLDINGS, L.P., IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff NO. 01-4151 Civil v. CIVIL ACTION - LAW PORT DARE, individually and Va PETLAND, IN EJECTMENT Defendants PRAECIPE TO SA TISFY, SETTLE AND DISCONTINUE TO THE PROTHONOTARY: Please mark the above-captioned action satisfied, settled and discontinued. Respectfully submitted, JOHNSON, DUFFIE, STEWART & WEIDNER t.( I ') ( 03 Dated: By: ~ David J. Lanza Attorney 1.0. No. 55782 301 Market Street P.O. Box 109 Lemoyne, PA 17043-0109 Telephone (717) 761-4540 Attorneys for Plaintiff :214735 CERTIFICA TE OF SERVICE AND NOvv, this 13th day of June, 2003, the undersigned does hereby certify that she did this date seNe a copy of the foregoing document upon the other parties of record by causing same to be deposited in the United States Mail, first class postage prepaid, at Lemoyne, Pennsylvania, addressed as follows: John R. Beinhaur, Esquire Beinhaur & Curcillo 3964 Lexington Street Harrisburg, PA 17109-2813 JOHNSON, DUFFIE, STEWART & WEIDNER BY:~iP, &40 D II) :.Jennifer t. Bixler 0 ~.. a f-~ l~...) (f0 --- ;; (...\ <;: ~ I'" .......'" ..J --, :.....) ...\) (l\ ~ 'l:. S.