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PR0PERTY MANAGEMENT, INC.
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PENNSYLVANIA
Plaintiff
v.
NO. 96-. J-4Lj.J' ~~~
RORY SMITH, individually and
trading as SMITH'S AUTO,
Defendant
CONFESSION OF JUDGMENT FOR MONEY
AND IN EJECTMENT
NOTICE OF JUDGMENT
To: RORY SMITH. individually and
trading as SMITH'S AUTO, Defendant
You are hereby notified that on {f(' h (1 {. l
the following Judgment was entered against you in
captioned case.
3 ,19$
the above
Judgment by Confession in the amount of S4.493.89 and in
ejectment for possession of all that certain 6,250 square feet of
real property located at and known as Suite 107~ 5215 Simpson
Ferry Road, Mechanicsburg, PA 17055.
Date: Ie. 3- tiC:. "it. A..,
, ,,~
I hereby certify that th~~~ and address of the oper
person to receive this notice is:~
Mr. Rory Smith
Smith'S Auto
5215 Simpson Ferry Road, Suite 107
Mechanicsburg, PA 17055
A: RORY SMITH. individually and
trading as SMITH'S AUTO, Defendido/a
Por este medio se Ie esta notificando que el de
del 19__, e1/1a siguiente Fa110 ha sido
anotado en contra suya en caso mencionado en e1 epigrafe.
Fecha:
prothonotario
Certifico que la siguiente direccion es la del defendido/a
segun indicada en el certificado de residencia:
Mr. Rory Smith
Smith's Auto
5215 Simpson Ferry Road. Suite 101
Mechanicsburg. PA l1055
Abuqado del Pt;>malldame
.
PROPERTY MANAGEMENT, INC.
Plaintiff
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PENNSYLVANIA
v.
NO.
RORY SMITH, individually and
trading as SMITH'S AUTO,
Defendant
CONFESSION OF JUDGMENT FOR MONEY
AND IN EJECTMENT
COMPLAINT IN CONFESSION OF JUDGMENT
AND NOW, comes Plaintiff, Property Management, Inc., by and
through its attorneys, the Law Offices of Stephen C. Nudel, and
respectfully files this Complaint for Judgment by Confession as
follows:
1. Plaintiff is Property Management, Inc., with a place of
business located at 1300 Market Street, Lemoyne, Cumberland
County, Pennsylvania 17043.
2. Pursuant to this Honorable Court's Order of Court dated
May 28. 1996, Plaintiff is the duly appointed Receiver for
premises located at 5215 Simpson Ferry Road, Mechanicsburg,
CUmberland County, Pennsylvania 17055. A true and correct copy
of the May 28, 1996, Order of Court is attached hereto and made a
part hereof as "Sxhibit A".
3. Defendant is Rory Smith, individually and trading as
Smith's Auto. with a place of business located at 5215 Simpson
Ferry Road. Mechanicaburg. cumberland County. Pennsylvania 17055.
4. Ward Group. Inc. ("WARD") is the record owner of the
premises located at 521~ Simpson Ferry Road. Mechanicsburg,
CUmberland County, Pennsylvania.
I
5. On or about June 3D, 1994, Defendant executed a Lease
Agreement ("LEASE") with Ward for 6,250 square feet of office and
warehouse space known as Suite 107, 5215 Simpson Ferry Road,
Mechanicsburg, CUmberland County, Pennsylvania ("PREMISES"). A
true and correct photostatic copy of the Lease is attached hereto
and made a part hereof as "Exhibit B".
6. The initial term of the Lease expires September 30,
1997. Defendant has defaulted under the terms of the Lease and
the Lease has been terminated.
7. RTC Mortgage Trust 1994-N2 ("RTC") is the record owner
of a mortgage secured by the Premises. RTC has initiated
foreclosure proceedings against the owner of the Premises.
8. On April 1, 1996, a hearing ("HEARING") was conducted
in the Court of Common Pleas of Cumberland County regarding RTC's
Petition for Appointment of Receiver.
9. Defendant was notified of and was present at the
Hearing.
10. At the close of the Hearing, Judge 01er entered an
Order directing the tenants of the Premises (including Defendant)
to pay rent to RTC's agent. AMRESCO Management. Inc. ("AMRESCO")
and directing RTC and Ward to appoint a property manager for the
Premises. A true and correct copy of the April 1. 1996. Order of
Court is attached hereto and made a part hereof as "Exhibit Co.
11. On or about May 23, 1996. Defendant was notified~y
Plaintiff that Plaintiff was the managing agent for the Premises.
A true and correct copy of the May 23, 1996, letter from
Plaintiff to Defendant is attached hereto and made a part hereof
as "Exhibit D".
12. On or about May 31, 1996, Defendant was notified by
Plaintiff that, pursuant to this Honorable Court's Order dated
May 28, 1996, ("Exhibit A") Plaintiff was appointed Receiver for
the Premises and had assumed all duties of managing the Premises
on behalf of RTC. A true and correct copy of the May 31, 1996,
letter from Plaintiff to Defendant is attached hereto and made a
part hereof as "Exhibit E".
13. The Lease has not been assigned except as stated
herein.
14. No judgment has been entered on the Lease in any
jurisdiction prior to this action.
15. Judgment is not being entered by confession against a
natural person in connection with a consumer credit transaction.
COUNT I: DAMAGES
16. The averments set forth in paragraphs 1 through 15 are
incorporated herein by reference as if set forth at length.
17. The Lease provides, inter alia, for the payment of
rent. late payment charges, common area maintenance charges,
prorata share of increase in real estate taxes and. in the event
of a default, costs of suit and attorneys fees in the amount of
ten percent fl0\} of Plaintiff's claim against Defendant.
18. Defendant has defaulted under the terms and conditions
of the Lease for failing to pay rent and other charges when due.
Defendant has failed to pay rent and other charges since before
April 1, 1996.
19. The May 28, 1996, Order of Court provides, inter alia,
that Plaintiff has the duty to collect all rents and payments due
for the property.
20. Pursuant to the Addendum to the Lease dated June 30,
1994, (attached hereto as part of "Exhibit B"), Defendant may be
entitled to a credit for refund of "Condo" deposit in the amount
of $8,000 plus 10.5 percent. The accrued interest is $2.210.08,
21. Defendant is liable to Plaintiff for the period of
April 1, 1996, through October 1, 1996, as follows:
Amount Past Due (Rent) $ 11,112.50
Amount Past Due (Late Charges) $ 2,460.00
Amount Past Due (CAM) $ 625.00
Amount Past Due (Taxes) $ 97.93
Less Credit for Condo Deposit/Interest ($ 10,210.08)
Attorneys Fees (10\) $ 408.54
TOTAL $ 4,493.89
22. Defendant was provided with written notice of default
on August 21, 1996, A true and correct copy of the August 21.
1996, default notice is attached hereto and made a part hereof as
"Exhibit F",
23. The Lease provides. inter alia that in the event of an
uncured default by Defendant. Plaintiff may confess judgment
against Defendant.
'"
29. The Lease provides, inter alia that in the event of an
uncured default by Defendant, Plaintiff may confess judgment
against Defendant.
WHEREFORE, Plaintiff demands judgment in the amount of
$15,779.97 in accordance with the terms of the Lease as
authorized by the Warrant appearing in the attached Lease plus
interest, costs of suit and attorneys fees.
COUNT III: ALTERNATIVE DAMAGES
30. The averments set forth in paragraphs 1 through 19 are
incorporated herein by reference as if set forth at length.
31. The Lease provides, inter alia, that in the event of a
default, Plaintiff may accelerate the monthly rent through the
end of the Lease term.
32. Defendant is liable to Plaintiff for the period of
April 1, 1996, through the end of the term as follows:
Amount Past Due (Rent)
Amount Past Due (Late Charges)
Amount Past Due (CAN)
Amount Past Due (Taxes)
Unpaid Balance of Instrument
Attorneys Pees (lOt)
$ 11.112.50
$ 2.460.00
$ 625.00
$ 97.93
$ 17,462.50
$ 3,175.79
TOTAL
$ 34.933.72
33. Defendant was provided with written notice of default
on August 21. 1996. A true and correct copy of the August 21.
1996. default notice is attached hereto and made a part hereof as
~Exhibit F".
~
34. The Lease provides, inter alia that in the event of an
uncured default by Defendant, Plaintiff may confess judgment
against Defendant.
WHEREFORE, Plaintiff demands judgment in the amount of
$34,988.72 in accordance with the terms of the Lease as
authorized by the Warrant appearing in the attached Lease plus
interest, costs of suit and attorneys fees.
COUNT IV: EJECTMENT
35. The averments set forth in paragraphs 1 through 34 are
incorporated herein by reference as if set forth at length.
36. Defendant has defaulted under the terms and conditions
of the Lease by failing to pay rent and other charges as set
forth in Count I of this Complaint.
37. Section 6.6 of the Lease provides, inter alia, that
storage of items is not permitted in any outside area or any
common area; a violation of section 6.6 constitutes an event of
default.
38. Defendant has defaulted under section 6.6 of the Lease
by storing vehicles and automobile parts in the parking lot and
on the grounds directly behind Defendant's shop.
39. Defendant was provided written notice of default on
August 27. 1996. A copy of the August 27, 1996. default notice
is attached hereto and made a part hereof as -Exhibit GO.
40. The Lease provides, ~nter alia. that in the event of an
uncured default by Defendant. Plaintiff may confess judgment in
ejectment against Defendant for possession of the Premises.
WHEREFORE, Plaintiff demands judgment in ejectment in
accordance with the terms of the Lease and Lease Addendum as
authorized by the Warrant appearing in the attached Lease plus
interest, costs of suit and attorneys fees.
Respectfully submitted,
,
Date: 10' r -q~
3FFIC. OF I;:BL
Stephen C. udel, Esquire
Attorney ID #41703
Tracy L. McNamara, Esquire
Attorney ID #72669
219 Pine Street
Harrisburg, PA 17101
(717) 236-5000
Attorneys for Plaintiff
". ." ...
.
RTC MORTGAGE TRUST 1994-N2, . IN THE COURT OF COMMON PLEAS
.
. CUMBERLAND COUNTY, PENNSYLVANIA
.
Plaintiff .
.
. NO. 3312 Civil 1991
.
v. .
.
:
WARD GROUP, INC., .
.
.
.
Defendant .
.
.
.
AND NOW,
ORDER OF COURT
t~
this z.'"b day of May, 1996,
upon consent of the
parties through their counsel, it is ORDERED AND DIRECTED that
this Court's Order dated April 1, 1996, is amended to desiqnate
Property Manaqement, Inc. as the Receiver and to specify the
duties of and compensation due Property Manaqement, Inc. as set
forth in the five numbered paragraphs in Schedule A attached
hereto.
EUGENE E. PIPINSltY, JR., ESQUIRE
210 Walnut street, P.O. Box 11963
Harriaburq, PA 17108-1963
For the Plaintiff
THEODORE A. ADLER, ESQUIRE
2331 Market Street
Caap H111, PA 1701l
For the Defandant
It'fftUUT A
SOIEOOLE A
1. Duti.s of property Management, Inc. ("pHI"). PHI shall
perform the following duties:
a. Collect and deposit all rents and payments due for
the property into a checking account established
at PNC Bank.
b. Approve and pay all "operating expenses" for the
Property.
c. Pay any other expenses of the Property as directed
by Plaintiff.
d. Submit complete monthly operating financial
statements to.Plaintiff.
e. Arrange for and supervise PHI employees or outside
contractors to perform regular maintenance work on
the Property.
f. Arrange for and supervise determination of major
repairs and, with Plaintiff's approval, proceed
with the work.
g. Negotiate and prepare all leases.
h. Arrange for advertising and promotion of rentals
as required.
2. compensation clue PKI.
rendered PMI is to be paid the
exp.nse:
As compensation for services
following as a priority operating
A. Management Fee. As compensation for ita continu-
ing management servic.s, PHI shall be paid a man-
agement fee of five perc.nt (5\) of the monthly
grass income collected of the property, p.yabl.
each month as collect.d or a minimum of $500.
B. t.easina co_ission. Th. fOllowing cODissions
shall be deemed earned by PHI upon deUvery of an
ex.cuted l.ase by a prosp.ctiv. tenant. Th.s.
cODi.sions shall be payable upon r.c.ipt from ·
tenant of the first month's rental. The C01IlIis-
sion schedule is as follows:
1. Five percent (5\) of l.a.. y.ars on.
through five.
2. TwO.nd one-h.lf perc.nt (2 1/2\) of the
sixth and any 1.... y..r thereafter.
3. "Op8l'aUD9 Expu..s" d.Uasd. Th. following shall be
included as operating expens.s of the Prop4lrty:
A. 'Ml cOIlp4lnsat1on. This shall be conaldered a
priority operating .lCp4lnse. and ah.ll be paid frolll
rents collected prior to payment of any other
operating expense or other expense or to payments
to Plaintiff.
B. All actual maintenance work (not to include main-
tenance coordination or supervision) performed on
the Property by PHI employees.
C. All costs of outside contractor work performed on
the Property at cost.
D. All purchases of equipment and parts for sole use
of the Property at cost.
E. Costs of utilities and services necessary to the
Property.
F. all real estate taxes, insurance premiums, assess-
ments for municipal improvements, and governmental
levies on the Property.
G. All purchase of supplies, materials, and advertis-
ing and promotion for the Property at cost.
4. owner Consent. PHI will first secure the consent of
plaintiff before making expenditures in excess of the sum of One
Thousand and 00/100 Dollars ($1,000) in connection with the costs
of outside contractor work, purchase of supplies and materials,
and the purchase of equipment and parts.
5. Rental collection and payments. PHI shall collect all
rents and payments due under the leases and shall pay all operat-
ing expenses and other expenses of the Property; provided,
however, that in the event rental collections are not SUfficient
to pay all such expenses, PHI shall promptly notify Plaintiff and
detail for Plaintiff the amount of such.shortage and the vendors
or other persons who cannot be paid by reason thereof. PHI shall
have no responsibility to fund such operating deficit in any way.
all vendors and other creditors of the Property shall bill
plaintiff, in care of PHI at such address as PHI shall designate.
.
,
. . .
LEASE AGREEMENl
This lease, entered into upon agreement of Landlord and Tenant
to be effective as herinafter set forth, by and between Ward Group
Inc. having their principal place of business at 1~51 Wallace St.
York, PA 17403.
(referred to herein as the "LANDLORD" OR "LESSOR"'.
AND
Smitb's Auto having their pr lnc ipal place .:.f b...Slness at
5215 Simpson ~erry Road, Mechanicsburg, PA 17055.
(referred to herein as the "TENANT" OR "LESSEE"'.
RECITALS
A. Ward Group Inc. is the owner of the property located on
5215 Simpson Ferry Road, Mechanicsburg, PA 17055
("The Property")
B. Constructed on said property is an office/lnd...strlall
warehouse/storage building, which has a mall1ng address of 5~15
Simpson Ferry Road, MechanlCsburg, PA 17055.
C. Landl.:.rd desires to lease to Tenant and Tenant deSires to
lease from Landlord,
D. Landlord and Tenant wish to herein set forth their entlre
agreement regarding the Leased Premises.
NOW, THEREFORE, in consideration of the premises, the mutual
terms, covenants and condition~ herein contained, and the rent
reserved to be paid by Tenant to Landlord, the parties hereto,
intending to be legally bound, do hereby agree and covenant as
followSI
.
1. PREMISES. Landlord lease5 to Twnant, and Tenant lea~es
from landlord, the L.ased Premi... upon all of the terms and
conditions s.t forth in this Lea.e.
Suite,,07
"arehouse
5q. rt. ottice
Tttal Sqy Ft.
. S7S0 $ 14)1.50
. bOO ~ IS0.00
b 0 R8! 11. 1S111.50
2. COMMON AREAS. The area. and facilltie. withln and around
the BUilding/PremiGe. .hall b. h.reinaft.r ref.rred t~ a. the
"Comm~n Ar.a~ and shall b. for the c~mmon and jOint use and b.nefit
of Landlord, Tenant and other tenants and occupant. of the &uilding,
and th.ir r..p.ctiv. e.ployee., agent., .ubtenantG, conc..sionair..,
lic.n....' custom.r. and oth.r invite...
IInIRI,. R
3. . TERM.
3.l Terms: The term of this Lease shall be for
2 years and ending Septemb.er 30, 1997 unless
sooner terminated pursuant to the terms of thlS Lease with at least
NINETY (90) DAYS prior written notice to Landlord. Tenant shall
have the option to renew this Lease in accordance with the
provisions of Paragraph 3.2 of this Lease. If Tenant does not
exercise renewal option, Tenant must give NINETY (90) DAYS written
notice prior to expiration of Lease of Landlord of Tenant's
intention to vacate property.
3.2 option to Renew: Landlord hereby grants Tenant the
right and privilege to renew this Lease for a period of ONE (1)
YEAR, such extended term to begin upon the expiration of the term
of this Lease, and all the terms, covenants and provisions of this
Lease (with the express exception of the rent and taxes) shall
apply to such extended term; provided, however, that if Tenant is
in default at anytime during the term of this Lease, any option to
extend the term of this Lease beyond the then-current term shall
become immediately null and void without notice to Tenant. If
Tenant shall elect to exercise the aforesaid option to extend.
Tenant shall do so by giving to Landlord notice in writing of
Tenant's intentions to do so not later than NINETY (90) DAYS prior
to the expiration of the term of this Lease. Tenant's right to
extend the term of this Lease is expressly conditioned upon
Landlord and Tenant agreeing to the rent and taxes for the extended
term; if such agreement is not reached within SIXTY (60) DAYS of
Tenant's electing to exercise Tenant's option to extend, Tenant's
right to the extended term shall become i~~ediately null and void
without notice to Tenant. Any agreement between the parties with
respect to the rent and taxes for the additional term shall be set
forth in writing, signed by the parties hereto, and said writing
shall be attached to this Lease and made a part thereof.
4. RENTAL.
4.1 Basic Monthly Rental: Tenant ,,*,rees to pay to
Landlord as a Basic Monthly Rental the sum of. S 1Stl7.S0
(yielding a one (1] year rent of $ 19.050.00 ), which rent
shall be payable in advance on the first (1st) day of each calendar
month be9inning October 1. 1995 upon 1\.greement between
Landlord and Tenant.
1\.11 payments of rent shall be made by Tenant to
Landlord without notice or demand. at sucb place as Landlord may
from time to time designate in writing. For the present, Landlord
dcsiqnates 5Zl5 Slap.on Ferry Road. Mechanic.burl. PA 170~5
as the place for the makin9 of the payment of rent. Checks must be
drawn on a Pennsylvania bank and are subject to collection. Any
extension of time for the pa}T.lent of any monthly instAllment of
rent shall not be a waiver of the rights of the Landlord to insist
on having all subsequent payments of rent made at the time herein
specified. If the rent is n~t paid by the tenth (lO) dayaftor its
. .
:!.'Je date, (determined by the post mark date), there siaal~ be
thereafter a $20.00 pe; day service charge to Tenant for each day
of delinquency, which service charge shall be deemed to be
additional rent.
4.2 Secur~ty Deposit: Tenantfa.sdf.~6d to Landlord with
the execution of th1s Lease the sum of 1".
which represents the Basic Monthly Rent in.! ~~. '" I. l' "~l"" I ~ amount
to be retained until the expiration of the current term.
4.3 Common Area Maintenance: Tenant agrees to pay to
Landlord a Co~~on Area Maintenance fee of ten (10) cents per square
foot leased per annum. This amount is due upon the execf~~~~f
this Agreement and upon each subsequent anniversary date .
5. TAXES AND UTILITIES.
S.l Payment of Real Estate Property Taxes: Landlord
shall pay all real estate property taxes applicable to the Lease
Premises during the term of this Lease. However. Tenant shall pay
to Landlord, the proportionate share of the amount, if any, by
which the real estate taxes for the total Premises increase over
those for the 1994 tax year. The amount to be paid by Tenant shall
be determined by the product of (al the amount of the increase of
real estate taxes assessed against the entire Premises over the
1994 tax year, and (b) a fraction, the numerator of which is the
square footage of the floor area of the Premises leased to Tenant
~nd the denominator of which is the total square footage of the
floor area of the total Premises. Any amounts due under this
provision will be billed to the Tenant by the Landlord when the
real estate property taxes are due, and are payable by the Tenant
to the Landlord with the next basic monthly rental payment.
5.2 Utilities - Landlord's Obligation: Landlord agrees
to pay for all initial water, fire hydrant, electric, sewer, and
septic service charges resulting from the provisions of such
services to the Leased Premises. However, Tenant agrees to
reimburse Landlord for Tenant's portion of said charges, upon
receiving notification from Landlord set fo~th in Paragraph 5.3
hereof. Landlord reserves the right to interrupt the supply of
water and also sewer/septic service when required by reason of
accident or of repairs, alterations or improvements until such have
been completed. Landlord shall not be liable in damages or
otherwise, for any failure to furnish or interruption of the
services of water and/or sewer/septic.
5.3 Utilities - Tenant's Obligation: Tenant shall pay
prior to delinquency all charges for air conditioning, beat, gas,
light. electricity, telephone or any other camrunic:ation or utility
services used in or rendered or supplied to the Leased Premises
throughout the term of this Lease and shall indemnify Landlord and
save Landlord harmless against any liability or dalll.a<<jles on sucb
account. Tenant also al]rees to pay the share of uwer, septic,
water. gas, .,'ect.r'~ And fire hydrant charges p"'~r""r"i.'r.ately
divided by Landlord. In addition, Tenant shall maintain and keep
in repair the heating and cooling units in said Premises. Landlord
reserves the right to interrupt the supply of such utilities when
required by reason of accident or of repairs, alterations or
improvements until such have been completed. Landlord shall not be
liable for damages or otherwise, for any failure to furnish or
interruption of such services. For utility breakdown payable by
Tenant refer to Exhibit liB" (attached) to this Lease Agreement.
S.4 Electr ical Service - Repair; Overload: Landlord
shall be responsible for the repair and maintenance of the
electrical system providing service to the Leased Premises;
provided, however, if Tenant installs any electrical equipment
which overloads the lines within the Leased Premises or the
Building, Tenant shall, at Tenant's own cost and expense, promptly
make whatever changes are necessary to remedy such condition and to
comply with all municipal requirements and all requirements of
Landlord.
5.5 Janitorial and Maintenance: Tenant shall provide and
pay for all janitorial, repair and maintenance expenses within the
Leased Premises, including the repair and maintenance of the door
or doors leading thereto and the cleaning of all carpets, rugs and
floorings.
5.6 Common Area Expenses: The Common Areas shall be
subject to the exclusive control of Landlord. Landlord shall
operate, manage, and maintain the Common Axeas, all in such manner
as Landlord may from time to time determine, after giving advance
notice to the Tenant (except in an emergency) and Landlord shall
pay all expenses resulting therefrom. Landlord hereby expressly
reserves the right from time to time, after giving advance notice
to the Tenant, to constrict, maintain and operate lighting and
other facilities, equipment and signs within the Common Areas; and
to allow others to use the Common Axeas for any purpose; to change
the size, area, level, location and arrangement of the Common
Areas; to landscape the CClIIllllon Area; to requlate parking by Tenants
and other occupants and their respective employees, agents, sub-
tenants, concessionaires, and licensees; to close temporarily all
or any portion of the COlmlon Areas for the purpose of making
repairs, changes or alternations thereto, or performing necessary
maintenance in connection with closings resulting from adverse
weather conditions or for any other purposes; to establish, modify
and enforce reasonable rules and regulations with respect to the
Common AreAS and the use to be made thereof. Tenant agrees that it
will abide by, keep and observe all reasonable rules and
regulations which Landlord may make from til'lle to time for the
management, safety, care, and cleanliness of the Leased Premiaes,
the Building and its CQIIIllon Areas and surrounding grol.lnds, the
parking of vehicles and the preservation of good order therein, aa
well as for the convenience of other occupants and tenants of the
Building.
.5.7 Snow Removal: Landlord will be responsible for snow
removal from the parking areas. Tenant will be responsible for the
snow removal from sidewalks or any other areas.
6. USE.
6.1 Use: The Premises shall be used and occupied by
Tenant exclusively as a business office/industrial/warehouse/
storage area. Tenant agrees that the premises shall be used for no
other purposes without obtaining the prior written consent of
Landlord.
6.2. Sui tabili ty: If the Premises are rentable as of the
date of execution hereof, then Tenant, by 'execution of this Lease,
shall be deemed to have' accepted the Premises in the condition
existing as of the date of execution and, in any event, this Lease
shall be subject to all applicable zoning ordinances and to any
municipal, county and state laws and regulations governing and
regulating the use of the Premises. Tenant acknowledges that
neither Landlord nor any agent of Landlord has made any
representation or warranty as to the suitability of the Premises
for the conduct of Tenant's business.
6.3 Uses Prohibited:
la) Tenant shall not do or permit anything to be
done in or about the Premises/Building which will increase the
existing rate of insurance upon the Premises or cause the
cancellation of any insurance policy covering said Premises or any
Building of which the Premises may be a part. Nor shall Tenant
sell or permit to be kept, used or sold in or about said Premises
any articles which may be prohibited by a standard form policy of
fire insurance.
Ib) Tenant shall not do Of permit anything to be
done in or about the Premises or the Cormlon Areas which will in any
way obstruct or interfere with the rights of other Tenants or
occupants of the Building or injury Of annoy them or use or allow
the Premises to be used for any unlawful or Objectionable purpose.
Nor shall Tenant cause, maintain or permit any nuisance in, on or
about the Premises, or commit or suffer to be committed any w.ste
in or upon the Premises or Common Are.s.
6.4 Sign: Tenant shall not display or erect any
lettering, sign, advertisement, awning or other projection in or
upon the Property or the exterior of the Building provided.
however. with the prior written consent of Landlord which shall not
be reasonably withheld. Tenant may erect on the entrance door to
the Y.eued Premis.a/Building an appropriate an4 tasteful sign
indicating the name and tra4emark of the business to be conducted
by Tenant within the Premis.s/Building.
. 5.5 Floor Load: Tenant shall not place a load upon any
floor within the Leased Premises exceeding the floor load per
square foot which s'.1ch floor was designed to carry and which is
allowed by law.
6.6 Outside Storage and Trash: No storable will be
allowed outside of the Building and on or in any Common Areas. All
trash must be placed in trash receptacles. A violation of this
paragraph shall constitute an event of default by Tenant.
7. MAINTENANCE AND REPAIRS; ALTERATIONS AND ADDITIONS.
7.l Landlord's Obligations: Subject to the provisions of
Paragraph 12 of this Lease, and except for damage caused by any
negligent or intentional. act or omission of Tenant or Tenant 's
agent, employees or invitees, Landlord, or Landlord's expense,
shall keep in good order, condition and repair the foundations,
exterior walls and the exterior roof of the Premises. Landlord
shall have no Obligation to make repairs under this Paragraph 7.1
until a reasona.l:lle time after receipt of written notice of the need
for such repairs; provided, however, except in emergency
situations, Landlord shall, at Tenant's request, perform all or any
portion of repairs, alterations or improvements which it is
obligated to perform pursuant to this Lease. In such event, Tenant
agrees to pay any additional expense incurred by Landlord for
performing the aforementioned work after Tenant's business hours,
if so requested, in any event, such work shall be performed in such
a fashion as to cause the least interference with Tenant's business
operations.
7.2 Tenant's Obligations:
(a) Subject to the provisions of Section 12 and 7.1,
Tenant, at Tenant's expense, shall make all necessary repairs and
all replacements to the Leased Premises' fixtures and all other
appliances and equipment used within the Premises. Such repairs
and replacements shall be made promptly as and when necessary. All
repairs and all replacements shall be in quality and class at least
equal to the original work.
(b) Upon the expiration or earlier termination of
thla Lease, Tenant shall surrender the Premises in a clean
condition, ordinary wear and tear, damage by fire, earthquake, act
of God or the elements alone excepted.
(c) Tenant shall at Tenant's sole cost and expense,
cOlllply with all of the requirements of all cOWlty, municipal,
state, federal and other applicable government authorities, now
enforced, which may hereafter be in force pertaining to its use of
said Premises, any structural changes required by such authorities
which are not caused by the act of neglect of Tenant shall be the
responsibility of the Landlord. Tenant, at its sole cost and.
expense, agrees to repair ~y damage to the Premises caused by or
in connection with the reJtOval of mAchinery or equipment,
=abinetwork, furniture and movable partition3, including without
limitation thereto, repairing the floor and patching and painting
the walls where required by Landlord to Landlord's reasonable
satisfaction. Tenant shall indemnify the Landlord against any loss
or liability resulting from delay by Tenant in so surrendering the
Premises, including without Limitation, any claims made by any
succeeding Tenant founded on such delay.
7.3 Landlord I & Rights: In the event Tenant fails to
perform Tenant's obligations under this Paragraph 7, Landlord shall
give Tenant notice to do such acts as are reasonably required to so
maintain the Premises. If Tenant shall fail to do such work and
diligently prosecute it to completion, Landlord shall have the
right but not the obligation to do such acts and expend such funds
3.t the expense of Tenant as are reasonable required to perform such
work. Any amount so expended by Landlord shall be paid by Tenant
promptly after demand with interest at twelve 112\) percent per
annum from the date of such work. Landlord shall have no liability
to Tenant for any damage, inconvenience or interference with the
use of the Premises by Tenant as a result of performing any such
work.
8. ENTRY BY L~LORD. Landlord and Landlord's agents shall
have the right at reasonable times to enter the Premises and/or
Building to inspect, to maintain, repair, make alterations or
additions to the same, or any portion thereof, or to show the
Premises and/or Building to prospective purchaser, Tenants or
lenders. Landlord may, at any time, place on or about the Premises
any ordinary "For Rent" signs. Tenant hereby waives any claim for
abatement of rent or for damages for any injury or inconvenience to
or interference with Tenant's business, any loss of occupancy or
quiet enjoyment of the Premises and any other loss occasioned
thereby.
9. LIENS. Tenant shall keep the Premises and the Building
free from Any liens arising out of work performed, materials
furnished or obligations incurred by Tenant and.shall indemnify,
hold harmless and defend Landlord from any liens and/or
encumbrances arising out of any work performed or materials that
are furnished by or at the direction of Tenant. In the event that
Tenant shall not, within twenty (20) days following the imposition
of any such lien, cause such lien to be released of record by
payment or posing of a proper bond, Landlord shall have, in
addition to All other remedies provided herein and by law, the
~ight. but not the obligations, to CAuse the same to be released by
such means as it shall ~eem proper, including payment of the claim
giving rise to such lien. All such sums paid by Landlord and all
expenses incurred in connection therewith, including attorney' 5
fees and cost shall be payable to Landlord by Tenant on demand with
interest at the rate of twelve 112\) percent per annum. Landlord
shall have the right at all times to post and keep posted on the
Premises any noUces permitted or required by law, or which
Landlord shall deem proper, for the protection of Landlord and the
:r>remises, ~nl\ ~..y other party having an intere1'l" th,.rnln. from
<' -....
mechan~cs and materialmen's liens. Tenant shall give to Landlord
written notice at least ten (lOI business days prior of the
expected date of commencement of any work relating to alterations
or additions to the Premises.
10. INDEMNITY'.
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I
10.l Indemnity: Tenant shall indemnify and hold Landlord
harmless from and against any and all claims of liability for any
injury or damage to any person or property arising from the willful
or negligent conduct, acts or omissions of Tenant, its agents or
employees. In no event shall Tenant be liable to Landlord for any
loss or damage (except as described in the prior sentence) caused
by fire or other casualties, or for any ordinary use, wear and
tear, acts of Gold or the" elements, the insurance for its recovery
of such losses.
10.2 Exemption of Landlord from Liability: Landlord
shall not be liable for injury to Tenant I s business or loss of
income therefrom or for damage which may be sustained by the
person, goods, wares, merchandise or property of Tenant, its
employees, invitees, customers, agents or contractors or any other
person in or about the Premises or the Building, caused by or
resulting from fire, steam, electricity, gas, water or rain, which
may leak or flow from or into any part of the Premises or the
Building, or from the breakage, leakage, obstruction or other
defects of the pipes, sprinklers, wires, appliances, plumbing, said
damage or injury results from conditions arising upon the sources
or places and regardless of whether the cause of sucb damage or
injury of the means of repairing the same is inaccessible to
Tenant. Landlord shall not be liable for any damages arising from
any acts or neglect of any other Tenant or Tenants of the Building.
Notwithstanding the foregoing, Landlord shall be liable to Tenant
for the conduct, acts or omissions of its agent, employees and
representatives which conduct, acts or omissions Landlord may
reasonably, by virt~a of its directions and supervision, exercise
control.
11. INSURANCE.
11.1 Liability Insurance: Tenant shall, at Tenant' s
expense, procure and maintain at all times during the term of this
Lease, or of this Lease as extended, a policy of comprehensive
public liability insurance insuring Tenant, with Landlord as an
additional insured, against any liability arising out of the use,
occupancy, or maintenance, of the premises and appurtenant area.
Such insurance shall at all times be in an amount of not less than
$100,000.00 combined single limit for the injury to or death of any
one person in anyone occurrence for Bodily Injury incll1~!ng death
and property damage and not less than $300,000.00 al for injuries
to more than one person. The limits of such insurance shall not
limit the liabl1ity of Tenant. Tenant shall promptly deliver to
Landlord certificates of insurance evidencing the existence and
M'.ounts of '''c" .I.n~\'ral'\ce. In the event Tenant fails to "focure
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3.nd maintain such insurance, Landlord may (but shall not be
required to) procure same at Tenant's expense after ten (10) days
prior written notice. No such policy shall be cancelable or
subject to reduction of coverage or other modification except after
thirty (30) days prior written notice to Landlord by the insurer.
All such policies shall be written as primary policies, not
contributing with and not in excess of coverage which the Landlord
may carry. Tenant shall, within twenty (20) days prior to the
expiration of such policies, furnish Landlord with renewals or
binders or Landlord may order such insurance and charge the cost to
Tenant, which amount shall be payable to Tenant upon demand.
Tenant shall have the right to provide such insurance coverage
pursuant to blanket policies obtained by Tenant provided such
blanket policies expressly afford coverage to the Premises and to
Landlord ilS required by this Lease. Landlord shall maintain a
policY of general liability insurance insuring Landlord for injury.
to persons and property occurring in the Common Area with policy
limits of at least $1,000,000.00. Upon Tenants' written request,
Landlord will deliver to Tenant written evidence of such coverage.
11.2 Property Insurance: Landlord shall obtain and keep
in force during the term of this Lease a policy or policies of
insurance covering loss or damage to the Premises, the Building and
the Common Areas, bu~ not Tenant's fixtures, equipment or Tenant
improvements, in such ~ount as Landlord shall determine, providing
protection against all perils included within the classification of
fire, extended coverage, vandalism, malicious mischief and special
extended perils (all risk).
11.3 Waiver of Subrogation: Each party hereto releases
the other party, its agents and employees to the extent of the
releasing party's actual recovery under its insurance policies,
from any and all liability for any loss or damage which may be
inflicted upon the property of such party, notwithstanding that
such loss or damage shall have arisen out of the negligent or
intentionally tortuous act or omission of the other party, its
agents or employees, provided, however, that this release shall be
effective only with respect to loss or damage occurring during such
time as the appropriate policy of insurance of the party so
releasing shall contain a clause to the effect that such release
shall not affect the said policy or the right of the insured to
recover thereunder I each party hereto shall use reasonable efforts
to have such a clause included in its said policies.
12. DMAGE OR DESTRUCTION.
If the Leased Premises or the Building should be damaged
or destroyed during the tem of this Lease by fire or other
insurable casualty without the fault of Tenant. Landlord shdl.
subject to the t1.Jlle that eiapsllS due to adjustJl1ent of fire
insurance, repair ana/or restore the s&IlIe to dAI\IAge or destruction,
except a.a otherwise prOVided in this Paragraph 12. lAndlord's
obligation under this Paragraph shall in no event exceed the scope
',: th. '.l;)rlt required to be dor.f! by t.;lndlor~ 1n the or1g1nal
:onst~uction of the Building. Landlord shall not be required to,
but Tenant shall with due dispatch, replace or restore forthwith
any trade fixtures, signs or other installations theretofore
installed by Tenant. Rent payable under this Lease shall be abated
proportionately according to the floor area of the Leased Premises
which is usable by Tenant, but if such damage was caused by the
~ault of Tenant, there shall be no abatement of rent. Such
abatement shall continue for the period commencing with such damage
or destruction and ending with the completion by Landlord of such
work of repair andlor reconstruction as Landlord is obligated to
do. If, however, the Leased Premises or the Building should be
damaged or destroyed by any cause so that Landlord shall decide to
demolish or to completely rebuild the Leased Premises or the
Building, Landlord may, wi thin sixty 160 I days after such damage or
destruction, give Tenant written notice of such decision and
thereupon this Lease shall be deemed to have terminated as of the
date of the damage or destruction and Tenant shall immediately quit
and surrender the Leased Premises to Landlord. Notwithstanding the
foregoing, should Landlord be unable to repair the Premises within
ninety (90) days from the happening of a fire or other casualty,
Tenant may terminate this Lease at any time thereafter.
l3. CONDEMNATION.
lal If the Premises or any portion thereof are taken
under the power of eminent domain, or sold by Landlord under the
threat of the exercise of said power all of which is herein
referred to as "condemnation," this Lease shall teminate as to the
part so taken as of the date the condemning authority takes title
or possession, whichever occurs first. If more than twenty (20\)
percent of the Building is taken by condemnation. either Landlord
or Tenant may terminate this Lease, as of the date the condemning
authority takes possession, by notice in writing of such election
within twenty (20) days after the condemning authority shall have
taken possession. However, Tenant shall not have the right to
terminate this Lease under this paragraph in the event Landlord
supplies Tenant with replacement Premises and facilities comparable
to the portion of the Premises condemned, and in such event this
Lease shall apply with equal effect to suc~ replacement Premises
and facilities.
(b) If this Lease is not terminated by either Landlord or
Tenant then it shall remain in full force and effect as to the
portion of the Premises remaining, provided the rent shall be
reduced proportionately. All awards for the taking of any part of
the Premises or any payment made under the threat of exercise of
power of l!lIIinent dOlllain shall be the property of Landlord, whether
made as compensation for diminution of value of Leasehold or for
the taking of the fee or as severance d~~agesl provided, however,
that Tenant shall be entitled to an award or loss or damage to
Tenant's trade fixtures and removable personal property. In the
event that this tease is not terminated by reuon of such
condemnation, Landlord shall, to the extent of severance d~~ges
r."~lv.d ~y ~ndlord 1n cornectirn with such condemnation, and as
::oon as reasonably possible, repair any damage to the Premises
caused by such condemnation except to the extent that Tenant has
been reimbursed the::efore by the condemning authority. Tenant
shall pay any amount in excess of such severance damages required
to complete such repair.
14. ASSIGNMENT AND SUBLETTING.
14.1 Landlord':; Consent Required: Tenant shall not
assign, transfer, mortgage, pledge, hypothecate or encumber this
Lease or any interest therein, and shall not sublet the Premises or
any part thereof, without the prior written consent of Landlord,
and any attempt to do so without such consent being firsthand and
obtained shall be wholly void and shall constitute a breach of this
Lease.
14.2 No Release of Tenant: No consent by Landlord to any
assignment or subletting by Tenant shall relieve Tenant of any
obligation to be performed by the Tenant under this Lease, whether
occurring before or after such consent, assignment or subletting.
The consent by Landlord to any assignment or subletting shall not
release Tenant from the obligation to obtain Landlord's express
written consent to any other assignment or subletting. The
acceptance of rent by Landlord from any other person shall not be
deemed to be a waive by Landlord of any provision of this Lease or
to be a consent to any assignment, subletting or other transfer.
Consent to one assignment, subletting or other transfer shall not
be deemed to constitute consent to any subsequent assignment,
subletting or other transfer.
l4.3 Attorney Fees: In the event Landlord shall consent
to a sublease or l1ssignment under this Section 14, Tenant shall pay
Landlord's reasonable attorney fees, not to exceed S500.00,
incurred with giving such consent.
15 . SUBORDINATION.
15.1 Subordination: This Lease is subject and
subordinate to the lien of all mortgages or deeds of trust now or
at any time hereinafter placed upon the Property of which the
Premises are a part of or on, or agalnst Landlord'. interest or
est at. thereln.
15.2 Subordination Agreements: Tenant covenants and
agrees to uecute and deliver upon demand without chuge, such
further instruments in recordable from evidencing such
subordination of thil Leas. to the lien of any mertgaves or deedl
of trust u may be required by Landlord during the tem of this
Lease, or of this L.... .s extended. Tenant hereby appoints
Landlord al Tenant's attorn.y-in-fact, irrevocably, to execute and
deliver any su~b agreements. lnst.r\lments, releu.. or other
documents.
. 15.3 Quiet Enjoyment: Landlord covenants and agrees with
Tenant that upon Tenant paying rent and the other monetary sums due
under this Lease, and performing its covenants and conditions,
Tenant shall and may peaceably and quietly have, hold of this Lease
and of any of the mortgages or deeds of trust described above.
lS.4 Atonement: In the event of foreclosure or the
exercise of the power of sale under any mortgage or deed of trust
made by the Landlord covering the Premises, Tenant shall atone to
the purchaser upon any such foreclosure or sale and recognize such
purchaser as the Landlord under this Lease, provided said purchaser
expressly agrees in writing to be bound by the terms of this Lease.
l6. DEFAULT AND REMEDIES.
16.1 Default: The occurrence of any of the following
shall constitute a material default and breach of this Lease by
Tenant:
la) Any failure by Tenant to pay the rent required to be
paid hereunder, where such failure continues for fifteen (lS) days
after written notice thereof by Landlord to Tenant.
Ib) Any failure by Tenant to pay any monetary sums
required to be paid hereunder other than rent where such failure
continues for fifteen IlS) days after written notice thereof by
Landlord to Tenant.
Ie) MY failure by Tenant to observe and perform any
other provision of this Lease to be observed or performed by
Tenant, where such failure continues for thirty (30) day period,
Tenant shall not be deemed to be in default if Tenant shall within
such period commence such cure and thereafter diligently prosecute
the same to completion.
Id) The makinq by Tenant of any general assignment or
general arrangement for the benefit of creditors; the filing by or
against Tenant of a petition to have Tenant adjudged a bankrupt or
of a petition for reorganization or arrangement under any law
relating to bankruptcy (unless, in the case of a petition filed
against Tenant), the same is dismissed within sixty (60) days the
appointment of a trustee or receiver to take possession of
substantially all of Tenant's assets located at the Premises or of
Tenant's interest in this Lease, where possession is not restored
to Tenant with thirty (30) days; or the attachment, execution or
other judicial aeiz'.:re of substantially all of Tenant's assets
located at the Prelllises or of Tenant' . interest in this Lease,
where such seizure is not dischArged \.ithin thirty (301 days.
(e) Any other action of Tenant referred to in this Lea.e
as constituting a material default or breach by Tenant.
. 15.2 Remedies: In the event of any such material default
or preach Py Tenant, Landlord may at any time thereafter, with or
without notice and demand, and without limiting Landlord in the
exercise of any rights or remedy at law or in the equity whicb
Landlord may have by reason of such default or breach:
(a) To accelerate the whole or any part of the rent for
the entire unexpired balance of the current term of this Lease, as
well as all other charges, payments, costs and expenses herein
agreed to be paid (or already due and payable) by Tenant, and any
rent or other charges, payment costs and expenses if so accelerated
shall be deemed due and payable as if, by the terms and provisions
of this Lease, such accelerated rent and other charges, payments,
costs and expenses were on that date payable in advance.
(b) If Tenant shall default in the payment of the rent
herein reserved or in the payment of any other sums due hereunder
by Tenant as defined in Paragraph 16.2 (a) of this Lease, Tenant
hereby'authorizes and empowers any Prothonotary or attorney of any
court of records to appear for Tenant in any and all actions which
may be brought for said rent and said other sums; and to sign for
Tenant an agreement for entering in any competent court an amicable
action or actions for the recovery of said rental and said other
sums and in said suits or in said amicable action or actions to
confess judgment against Tenant for all or any part of said rental
and said other sums, and for interest and cost, together with an
attorney's commission for collection of ten (10\) percent. 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 rental and said other sums shall fall due or be in
arrears, and such powers may be exercised as well after the
expiration of the term or other termination of the Lease.
(c) If Tenant shall default in the payment of the rent
herein reserved or in the payment of any other sums due hereunder
by Tenant, this Lease may, at the option of the Landlord, be
terminated and, in such event, any attorney may irnmediately
thereafter, as attorney for the Tenant, at the sole request of
Landlord, sign an agreement for entering in any competent court an
amicable action and judqment in ejectment (without any stay of
execution or appeal) against Tenant and all persons cla~ng under
Tenant, for the recovery by Landlord of possession of the Premises
without any liability on the part of the said attorney, for which
this shall be a sufficient warrant, and thereupon a writ of
possession may issue forthwith without any prior proceedings
whatsoever. Also, Tenant hereby releases Landlord of all errors
and defects whatever in entering such action or judgment, errors,
or causing such writ of possession to be issued, and hereby agrees
that no writ or error or objection or exception shall be made or
taken thereto, and \lith a copy of this Leue, verified by
affidavit, being filed in such action, it shall not be necessary to
file the original as a warrant of attorney, any law or rule of
court to the contrary notwithstanding. No such determination of
this ~~e, not takin9 or re~nvaring possession of the Premisps,
shall deprive Landlord of any action against Tenant for possession
and for the rents, charges, payment, cost, and expenses referred to
in subparagraph (a) of the paragraph l6.2.
(d) Landlord shall have a lien on all trade fixtures,
furnishings, equipment and other personal property of Tenant which
are placed in or become a part of, the Premises, as security for
the rents, charges, payments, cost and expenses referred to in
subparagraph (a) of this Paragraph 16.2, which lien shall not be in
lieu of or in any way affect the statutory Landlord's lien given by
law, but shall be cumulative thereto. Te~ant hereby grants to
Landlord a security interest in all such personal property above
enumerated for such purposes.
(e) Re-enter upon the Premise with or without process of
law and take possession of the same and of all trade fixtures,
furnishings and equipment of Tenant inclUding the right to change
door locks and suspend utilities and serves and expel or remove
Tenant and all other parties occupying the Premises, using such
force as may reasonably be necessary to do without being liable to
Tenant for any loss or damage occasioned thereby. Such personal
property of Tenant may be removed by Landlord frOlll the Premises and
stored for the account of and at the expenses and risk of Tenant;
or Landlord may, at its option, and after giving Tenant five (S)
days prior written notice thereof, sell said personal property at
public or private sale for such price and upon such terms as
Landlord may determ.ine, applying the proceeds of such sale against
the balance owing by Tenant to Landlord under this Lease, inClUding
the expense of such removal and sale.
(f) Terminate this Lease, or from time to time, without
terminating this Lease, relet the Premises or any part thereof on
such terms and conditions as Landlord, in its sole discretion,
shall determine with the right to make alterations and repairs to
said Premise., provided, however, that Landlord shall in no way be
responsible or liable for any failure to relet the Premises or any
part thereof or for any failuxe to collect any rent due upon any
such reletting. In the event Landlord relets the Premises from
time to time, the rentals so received shall be applied first to the
payment of any obligation other than rent due hereunder frall Tenant
to Landlord, then to the payment of the cost of such reletting,
including attorneys, fees and broker's commission which Landlord
may have paid or incurred in connection with such repossession and
reletting, then to the payment of the costs of any alteration or
repair to the Premises to make them tenantable or acceptable to a
new Tenant, then to the payment of rent and other charges,
payments, coats and expenses referred to in subparagraph (a) of
this Paragraph 16.2 due and unpaid hereunder and the residue, if
nay, after p&y&llent of the foregoing expense..
(g) Landlord shall not by such re-entry or any other act
be deemelS to have terminated this Leue or the UahiUty of Tenant
for the total rent reserved hereunder \lnlus Landlcrd ah&ll vive to
Tenant v..\tten notice .of Landlord'. election to uI'IIllnne this
Lease. . In the event that Landlord shall give to Tenant written
notice of Landlord's election to terminate this Lease as provided
herein, Landlord shall thereupon be entitled to recover from Tenant
the worth, at the time of such termination, or the excess, if any,
of the rent and other charges required to be paid by Tenant
hereunder for the balance of the term (if this Lease had not been
so terminated) over the then reasonable rental value of the
Premises for such period.
(h) No rignt or remedy herein conferred upon or reserved
to Landlord is intended to be exclusive of any other right to
remedy herein or by law provided but each shall be cumulative and
in addition to every other right or remedy given herein or now or
hereafter existing at law or in equity or by stature.
16.3 Default by Landlord: Except as otherwise
specifically set forth in this Lease Agreement, Landlord shall not
be in default unless Landlord fails to perform obligations required
of Landlord within a reasonable time, but in no event later than
thirty. (30) days after written notice by Tenant to Landlord
specifying wherein Landlord has failed to perform such obligation
is such that more than thirty (30 days are required for
performance, then Landlord shall not be in default if Landlord
commences performance within such thirty (30) day period and
thereafter diligently prosecutes the same to completion.
17. MISCELLANEOUS.
17.1 Vacating Premises: Landlord covenants that if
Tenant shall at any time during the continuance of this Lease
remove or attempt to remove Tenant's goods or property out of or
from the said Premises, except in the ordinary course of business,
without first having paid and satisfied Landlord in full for all
rent or other said sums which may become due during the entire term
of this Lease, then and in such case, such removal or attempt at
removal shall be considered as fraudulent, and the whole rent of
this Lease or any part thereof, at the option .of the Landlord,
shall be taken to be thereupon due and payable in arrears, and the
Landlord may proceed to collect or sue or enter a judgment for the
whole or said part of moneys due.
17.2 Estoppel Certificate:
(a) Tenant shall at any time upon not less than ten (10)
days proper written notice from Landlord execute, acknowledge and
deliver to Landlord a statement in writing (1) certifying that this
Lease is unmodified and in full force and effect (or, if modified,
stating the nature of such modification and certifying that this
Lease, as so modified, is in full force and effect) and the date t~
which the rent and other charges are paid in advance, ~f any, and
(2) acknowledging that there are not, to Tenant'. knowledge, any
uncured defaults on the part of Landlord hereunder, or specifying
such defaults if nay are cla.imed.. Any purchaser or enC"I"'brancer of
the Premises.
. (b) Tenant's failure to deliver such statement within
such time shall be conclusive upon Tenant (1) that this Lease is in
full force and effect, without modification except as may be
represented by Landlord, (2) that there are no uncured defaults in
Landlord's performance, and (3) that not more than one month's rent
has been paid in advance.
(c) If Landlord desires to finance or refinance said
Premises, or any part thereof, Tenant hereby agrees to deliver to
any lender designated by Landlord such financial statements of
Tenant as may be reasonably required by such lender. Such
statements shall include the past three (3) years financial
statements of Tenant. All such financial statements shall be
received by Landlord in confidence and shall be used only for the
purposes herein set forth.
17.3 Transfer of Landlord's Interest: In the event of a
sale or conveyance by Landlord or Landlord's interest in the
Premises other than a transfer for security purposes only, Landlord
shall be relieved from and after the date specific in such notice
of transfer of all obligations and liabilities accruing thereafter
on the part of the Landlord, provided that any funds in the hands
of Landlord at the transfer in which Tenant has an interest, shall
be delivered to the successor of Landlord. This Lease shall not be
affected by any such sale and Tenant agrees to attorn to the
purchaser or assignee provided all Landlord's obligations hereunder
are assumed in writing by the transferee.
17.4 Captions, Attachments and Defined Terms:
(a) The captions of the paragraphs of this Lease are for
convenience only and shall be deemed to be relevant in resolving
any questions of interpretation or construction of any section of
this Lease.
Cb) Exhibits attached hereto, and addendum and schedules
initiated by the parties, are deemed by attachment to constitute
part of this Leaae and are incorporated herein.
,
(c) The word "Landlord" and "Tenant," as used herein,
shall include the plural aa well as the singular. Words used in
neuter gender include the ~sculine and feminine and worda in the
masculine or feminine gender include the neuter. If there be lIlOre
than one Landlord or Tenant, the obligations hereunder imposed Upoll
Landlord or Tenant shall extend individually to their sole and
separate property as well as to their entireties property. The
term "Landlord" shall mean only the owner or owners at. the t1llle 1n
question of the fee title. The obligations contained in this L....
to be performed by the Landlord shall be b1ncUng on Landlord t.
successors and asaivos ouy durinq their respective peri. of
ownership.
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, l7.S Entire Agreement: This instrument along with any
exhibits and attachments hereto constitutes the entire agreement
between Landlord and Tenant relative to the Premises and this
Agreement and the exhibits and attachments may be altered, amended
or revoked only by an instrument in writing signed by both Landlord
and Tenant. Landlord and Tenant agree hereby that all prior to
contemporaneous oral agreements between and among themselves and
their agents or representatives relative to the Leasing of the
Premises are merged in or revoked by this Agreement.
17.6 Severability: If any term or provision of this
Lease shall, to any extent, be determined by a court of competent
jurisdiction to be invalid or unenforceable, the remainder of this
Lease shall not be affected thereby, and each term and provision of
this Lease shall be valid and be enforceable to the fullest extent
permitted by law.
17.7 Cost of Suit:
(a) If Tenant or Landlord shall bring any action for any
relief against the other, declaratory or otherwise, arising out of
this Lease, including any suit by Landlord for the recovery rent or
possession of the Premises, the losing party shall pay the
successful party's attorney's fees whether or not such action is
prosecuted to judgment.
(bl Should Landlord, without fault on Landlord's part, be
made a part to any litigation insti~uted by Tenant or by any third
party against Tenant, or by or against any person holding under or
using the Premises by license of Tenant, or for the foreclosure of
dny lien for labor or material furnished to or for Tenant or any
such other person otherwise arising out of or resulting from any
act or transaction of Tenant or of any such other person, Tenant
covenants to save and hold Landlord harmless from any judqment
rendered against Landlord, the Premises, the Building or any part
thereof, and all costs and expenses, including reasonable
attorneys' fees, incurred by Landlord in or in connection with
litigations.
,
17.8 Time, Joint and Several LiabilitYI Time is of the
essence of this Lease and each and every provision hereof, except
as to the conditions and relating to the delivery of possession of
the Premises to Tenant. All the terms, covenants and conditions
contained in this Lease to be performed by either party, if such
party shall consist of more than one person or organization, shall
be deemed to be joint and several, and all rights and remedies of
the parti.. shall be eumulative and not exclusive of any other
remedy at law or in equit.y.
17.9 Bindinljl Effectl Choice of La'll The parties hereto
agree that all the provisions hereof are to be construed .s both
covenants and conditions .. though the words importinljl such
covenants and conditions were used in each sepuate paragraph
her."'-: sl\b~.('t to any proYilions hereof rertrictinq usic;nraent or
:ubletting by Tenant Olnd subject to Section 17.2, all of the
provisions hereof shall bind and insure to the benefit of the
parties hereto and their respective heirs, legal representative,
successors and assigns. This Lease shall be governed by the laws
of the Commonwealth of Pennsylvania.
17.10 Wai ver: No covenant, term or condition or the
breach thereof shall be deemed waived; except by written consent of
the party against whom the waiver is claimed, and any waiver or
breach of any covenant, term or condition shall not be deemed a
waiver of any preceding or succeeding breach of the same or any
other covenant, term or condition. Acceptance by Landlord of any
performance by Tenant after the time the same shall have become due
shall not constitute a waiver by Landlord of the breach or default
of any covenant, term or condition unless otherwise expressly
agreed to by Landlord in writing.
17.11 Surrender of Premises: ':'he voluntary or other
surrender of this Lease by Tenant, or a mutual cancellation
thereof, shall not work a merger, and shall, at the option of the
Landlord, terminate all or any existing sublease or subtenancies,
or may, at the option of Landlord, operate as an assignment to it
if any or all such sub-leases or sub-tenancies.
17.12 HOlding Over: If Tenant remains in possession of
all or any part of ~e Premises after the expiration of the term
hereof, land without having exercised any option to Lease) with or
without the express or implied consent of Landlord, such hereof or
an extension for any further term, and in such case, rent and other
monetary sums due hereunder shall be payable in the amount and at
the time specified in this Lease and such month to month tenancy
shall be subjected to every other tem, covenant and agreement
contained herein.
17.13 Interest on Past Due Obligation: E.xcept a.
expressly herein provided, any amount due to Landlord not paid when
due shall bear interest at twelve (12\) percent per annum frOlll the
due date. Payment of such interest shall not excuse or cure any
default by '.ren&Dt under thi. Leue. '
17.14 Recording I Tenant shall not record thia L....
without Landlord'. prior written consent, and such recordation
shall, at the option of Landl.ord, constitute a non-curable default
of Tenant hereunder.
17.n Notices I Any notice in thia Le..e required or
perJdtted to be .,iven by either party to the other muat be in
writing and .ball be deemed received when .ent by United State.
lII&il, peatap prepai4 and r..,iatered or certified, with return
receipt reque.ted, at the addre.. .et forth below or by d.Uvering
the ..... 11\ person to .uch party. For purposes of notice the
addr..... of the partie. shall, until changed .a her.inafter.
.
EXHIBIT "A"
~LL THAT CERTAIN tract ~f land, ~ith buildings and improvements
thereon, situated in HAMPDEN TOWNSHIP, Cumberland County,
Pennsylvania, more particularly bounded and described as follows,
to witl
BEGINNING at a point in the Northern line of Simpson Ferry Road,
said point being located and referenced the following courses and
distances from the center line of Legislative Route No. 2l069; (1)
Westwardly a distance of six hundred (600) feet: (2) South fourteen
(14) degrees forty-five (45) minutes East, a distance of seventeen
and fifty-five (17.55) feet; (3) South seventy-nine (79) degrees
forty-five (45) minutes West, a distance of nine hundred fifteen
and fifteen hundredths (915.15) feet to a point; thence North
fourteen (14) degrees forty-five (45) minutes West, a distance of
two hundred forty-eight and three hundredths (248.03) feet to a
point; thence along the right-of-way now or late of Pennsylvania
Railroad, North seventy-seven (77) degrees zero (00) minutes
eighteen (18) seconds East, a distance of two hundred ninety-seven
and ninety hundredths (297.90) feet to . point; thence South
fourteen (14) degrees forty-five (45) minutes East, a distance of
three hundred thirty and ninety-two hundredths (330.92) feet to a
point; thence along lands now or late of Southland Corp., South
seventy-nine (79) degrees forty-five (45) minutes West, a distance
of one hundred fifteen and fifteen hundredths (115.15) feet to a
point; thence along the said lands, South fourteen (l4) degrees
fortY-five (45) minutes East, a distance of one hundred eighty and
fifty-five hundredths U80.55) feet to a point, the place of
BEGINNING.
CONTAINING 2.092 acres of land in accordance with a survey dated
August 18, 1969, prepared by William B. Whittock, Registered
Professional Engineer, .s well as in accordance with a Plan dated
March 30, 1977, prepared by Gerrit J. !letz Associates, Inc.,
Engineers and surveyors, and being Parcell-!l on Resubdiviaion Plan
for Herbert Benner, which waa approved by tile Hampden Township
commissioners on September 2, 1969.
HAVING thereon erected brick And block offices and warehouse, 8&1d
premisea being known and nWl\bered as 5215 simpson Ferry Road,
Keclwllcsburg, pennsylvania.
1l'S'C KOIlfIAOI taWt' "14-111, I III ftIJI COUlt' o. colOlOll ILIA' or
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DlfeD4lnt. I ~21J CIVIL 1"~
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AID ~, thl. lit. 41Y of APril, "",, upon
conel~a\Lon of the .lalnt1','_ .etltlon for appalnta.nt of I
MOll 1.,.., 11IO pun\llln1: \0 an &9I'...-t 1'...... 1" .... .cnan in
the pnQlloa of tha partla. and tII.1r ClOWI.al., 1t 111 0JID1IlQ &nil
Dtl-w~1D I. tol1GV11
1. '1'11. tnalltl of the prw... arl notUied tUt
,. 11ft""" IXUICO MlII8f_t, 1M., and 111'4 ~D\1P, 1110., III
relit, ll1Glll4J.ftf Ill)' put dlla nnt, Mould 1M ,114 dlrlCl1:1y to
...,-UCO ~_, In-.
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effort to 'tn' on I JII'OPtrty "MIll' ror ue pl'a1... no .U1
h."., PO'HI., an'." aM uy ..uol., ,U riptl artd ra'"'IU..
of till nollWI' of till prOJlUty.
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VERIFICATION
I, James P. Stephens, Jr., as President of Property
Management, Inc., being authorized to do so. verify that the
statements in the foregoing document are true and correct to the
best of my knowledge, information and belief.
I understand that any false statements herein are made
subject to the penalties of 18 Pa.C.S.A. Section 4904. relating
to unsworn falsification to authorities.
PROPERTY MANAGEMENT I INC.
Date: ,of, /t;(p
S008C
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PROPERTY MANAGEMENT, INC.
Plaintiff
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PENNSYLVANIA
v.
NO.
RORY SMITH, individually and
trading as SMITH'S AUTO,
Defendant
CONFESSION OF JUDGMENT FOR MONEY
AND IN EJECTMENT
CONFESSION OF JUDGMENT
Pursuant to the authority contained in the Warrant of
Attorney. the original or a copy of which is attached to the
Complaint filed in this action, I appear for the Defendant and
confess judgment in favor of Plaintiff and against Defendant as
follows:
Amount Past Due (Rent) $ 11.112.50
Amount Past Due (Late Charges) $ 2.460.00
Amount Past Due (CAN) $ 625.00
Amount Past Due (Taxes) $ 97.93
Less Credit for -CondoR Deposit ($ 10.210.08)
Attorneys Fees (lOt) $ 408.54
TOTAL
~CLUj~iJ~
Tracy L. McNamara, Esquire
Attorney ID '72669
219 Pine Street
Harrisburg, PA 17101
(717) 236-5000
Attorney for Defendant
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PROPERTY MANAGEMENT, INC.
plaintiff
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PENNSYLVANIA
v.
NO.
RORY SMITH, individually and
trading as SMITH'S AUTO,
Defendant
CONPESSION OF JUDGMENT FOR MONEY
AND IN EJECTMENT
CONFESSION OF JUDGMENT
Pursuant to the authority contained in the Warrant of
Attorney, the original or a copy of which is attached to the
Complaint filed in this action, I appear for the Defendant and
confess judgment in ejectment in favor of plaintiff and against
Defendant for possession of the real property described as
follows:
6.250 square feet of office and warehouse space known as
Suite 107
5215 Simpson Ferry Road
MeebaniC'bu~OL"OSS
Tracy L. McNamara. re
Attorney ID '72669
219 Pine Street
Harrisburg, PA 17101
(717) 236-5000
Attorney for Defendant
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PROPERTY MANAGEMENT, INC.,
plaintiff
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
vs.
No. 96-5445 CIVIL
RORY SMITH, individually and
trading as SMITH'S AUTO,
Defendant
.
.
CONFESSION OF JUDGMENT FOR
MONEY AND IN EJECTMENT
ORDBR OF COURT AND RULB TO SHOW CAUSB
AND NOW this
,/
\,,7 -/
,)
day of
No V i",Ylb vC.
,
1996,
upon presentation and consideration of Defendant's Petition to
strike Off or Open a Confessed Judgment, it is hereby ORDERED
that:
1. A Rule is issued upon Petitioner, Property Management,
Inc., to show cause why Defendant is not entitled to the
relief:
requested
\ .
2.
Plaintiff shall file an Answer to the
Petition within
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days of this date:
3. The Petition shall be decided under Pa.R.C.P. No. 206.7:
- t I
4. Depositions shall be completed within ~ days of
this date: and
Qlw.r\.,I.Il Ihlllll.r
shall be held on the ~-tI1 day of
, 1991 wt '1'~lv~k ~.... 1"
t't11 6 L SLT D 'II",..;::T RJ,',,;.r/;&,fti<
of the Cumberland county(!o~ous . .
5. Argument
FZhItlM't1L V
All proceedings to stay until detormination of the Rule.
Notice of the entry of this Order shall be provided to all
parties by Defendant,
* ?,(o~""fM.Y h ,I,'J f.
BY THE COURT,
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VS.
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
No. 96-5445 CIVIL
PROPERTY MANAGEMENT, INC.,
Plaintiff
RORY SMITH, individually and
trading as SMITH'S AUTO,
Defendant
CONFESSION OF JUDGMENT FOR
MONEY AND IN EJECTMENT
DIFIHDAHT'8 PITITIO. TO 8TRIKB OPF
OR OPI. COHFI881D JUDOMIHT
AND NOW comes Defendant, Rory Smith, individually and
trading as Smith's Auto, by and through his attorney, Michelle R.
Calvert, Esquire, and respectfully petitions this Court to strike
off or open the confessed judgment as follows:
I. PBTITIOll TO 8'1'RIKB on JtJDOMBHT
1. plaintiff, Property Management, Inc., commenced this
action on October 3, 1996, by filing a Complaint in Confession of
Judgment upon a commercial lease agreement ("Lease") containing a
warrant of attorney. A true and correct copy of the Complaint is
attached hereto and incorporated by reference as Exhibit "A".
2. On october 3, 1996, judgment by confession was entered
against Defendant in the amount of Four Thousand Pour Hundred
Ninety-Three COllars and 89/100 ($4,493.89), and in ejectment for
possession of real property consisting of six thousand two
hundred fifty square feet (6,250 sq.ft) located at and known as
suite 107, 5215 Simpson Ferry Road, Mechanicaburq, Pennsylvania.
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3. Plaintiff fails to aver in its complaint that the
judgment is not being entered against a natural person in
connection with a residential lease, as required by Pa.R.C.P.
2971(a) (1).
4. Plaintiff fails to aver in its Complaint the method by
which the amount of rent, late payment charges, common area
maintenance charges and the pro rata share of increase of real
estate taxes claimed to be due from Defendant under the lease was
determined, as required by Pa.R.C.P. 2952(a)(7).
5. The judgment by confession entered in this action on
October 3, 1996 is irregular by reason of the above stated
defects appearing on the face of the record.
WHEREFORE, Defendant, Rory Smith, individually and tradinq
as Smith's Auto, respectfully requests that this Court .trike off
the judgment by confession of October 3, 1996 in the above-
captioned matter.
II. 'DITIO. '1'0 0.1. JUDGIIIIl'1'
6. The averments set forth in Paragraphs 1 through 5 are
incorporated herein by reference as if .et forth at length.
A. ABSENCE OF AUTHORITY '1'0 CONnsS JUDGMEHT
IN AMOUNT CLAIMED
7. Plaintiff has confessed judgment for an aaount Which
include. Ileven Thou.and One Hundred Twelve Dollars and 50/100
($11,112.50) alleged to be owed a. of the date of entry of
judqaent for past due rent for the period of April 1, Itt6
through OCtober 1, 1996.
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8. Under the terms of the Lease, which is attached hereto
as part of Exhibit "A", the monthly rental amount is One Thousand
Five Hundred Eighty-Seven Dollars ($1,587.00).
9. The Lease provides that monthly rental amounts are due
on the first day of each month, with a ten (10) day grace period
thereafter.
10. Plaintiff lacks authority pursuant to the warrant of
attorney contained in the Lease to confess judgment in the amount
claimed, which includes Eleven Thousand One Hundred Twelve
Dollars and 50/100 ($11,112.50) from past due rent for a seven
month period, since Defendant was not liable for rent for
October, 1996 as of October 3, 1996, the date that judgment was
entered.
8. ABSENCE OF WARRANT OF ATTORNEY
TO CONFESS JUDGMENT
11. Pursuant to an Addendum to the Lease ("Addendum"),
Defendant had the option to re-neqotiate the Lease if the
proposed sale of the building containing the leased premises was
not finalized.
A copy of the Addendum is attached hereto and
incorporated by reference as Exhibit "8".
12. The Addendum was executed contemporaneously with the
Lease on June 30, 1994.
13. The sale of the building referred to in the Addendum
was never finalized.
14. Defendant exercised his option to re-neqotiate the
Lease by enterinq into a new ac;Jnellent ("Aqn..ent") in AU9Ust
1995 with Ward Group, Inc., the record owner of the lea-.d
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premises, which Agreement did not incorporate the warrant of
attorney to confess judgment. A copy of this Agreement is
attached hereto and incorporated by reference as Exhibit "C".
15. Plaintiff lacks authority to confess judgment pursuant
to the warrant of attorney in the original Lease as a result of
the subsequent Agreement.
c. ABSENCE OF DEFAULT - LIMITATION
BY CONTEMPORANEOUS WRITTEN AGREEMENT
16. Pursuant to the Agreement entered into in August 1995,
Defendant was authorized to offset his monthly rent with amounts
owed to him for his performance of management services in
connection with the building containing the leased premises.
17. Under the terms of the Agreement, management services
performed by Defendant were to be compensated at the rate of ten
(10\) percent of gross rental receipts for the building.
18.
Defendant performed management services for
the
building from July 1. 1994 through June 30, 1996.
19. The compensation due Defendant for such service.
exceeds the amount claimed to be owed by Defendant in Plaintiff'.
Complaint.
20. As a result of the authorized .etott, Defendant i. not
in default of the terms of his Lease.
D. ABSENCE OF DEFAULT - OUTSIDE STORAGE
21. Section 6.6 ot the Lea.e provide., inter AliI, that
stora9. of ite_ is not perllitted in any outside area or any
co_on are..
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22. Defendant does periodically place scrap metal from his
auto repair business outside of his shop for regular pickup by a
scrap metal dealer.
23. Defendant also currently maintains a customer vehicle
which is beinq restored outside of his shop.
24. Defendant does not store automobile parts and vehicle.
on the qrounds behind his shop, in violation of section 6.6 of
the Lease, as alleqed.
E. BREACH OF CONTRACT BY LANDLORD
AND PLAINTIFF
25. Pursuant to the Lease, the record owner of the
property, Ward Group, Inc. ("Landlord") is obliqated to provide,
inter AliA, initial water, fire hydrant, electric, .ewer and
.eptic .ervice., repair and maintenance of electrical ..ervice,
and .now reaoval to the entire preai.e., includinq that portion
lea.ed to Defendant, at 5215 Simp.on Ferry Road, Mechanic.burg.
26. plaintiff, as Receiver of the property appointed by
this Court on May 28, 1996, is alao respon.ible to provide the.e
.ervice., a. well a. to approve and pay all operatinq expen.e.
for the property. A true and correct copy of the May 28, 1996
Order of COurt i. attached hereto and incorporated by reference
a. Exhibit "D".
21. loth the Landlord and Plaintiff have breached their
obU9ation. Ilnder the Lease and the Order of court by ta11il\9 to
provide and pay for the.e .ervice..
5
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28. This breach by Landlord and Plaintiff occurred prior to
Defendant's alleged breach by failure to pay rent and other
charges when due for the period of April 1, 1996 through October
1, 1996.
29. As a result of the prior breach by Landlord and
Plaintiff, the rent and other charges alleged to be due from
Defendant are not legally due and payable.
WHEREFORE, Defendant, Rory Smith, individually and trading
as Smith's Auto, respectfully requests that this Court open the
judgment by confession of October 3, 1996 in the above-captioned
matter.
III. DIFEHDANT'S COUNTER-CLAIM AGAINST
PLAI1I'l'II'I' . PROPIRTY MANAGDlB1I'l'. INC.
30. The averments set forth in Paragraphs 1 through 29 are
incorporated herein by reference as if set forth at length.
31. Defendant provided property management services to the
property, and pursuant to his Agreement wi th Landlord dated
August, 1995. was to be compensated for such services at the rate
of ten (lOt) percent of gross rental receipts, from July 1, 1994
through June 30, 1996.
32. As. result of the failure of Landlord and Plaintiff to
provide water, fire hydrant, electric, repair and maintenance of
electrical service, and snow removal for the property, Defendant
wa. forced to provide and pay for such necessary .ervice. in
order to maintaln the building.
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33. Defendant provided and paid for such services accordinq
to the following schedule.
Copies of the billinqs which
Defendant paid for the services are attached hereto and
incorporated by reference as Exhibits "E" through "H".
TOTAL
$2,050.00
$ 143.63
$1,208.23
$1.041.00
$4,442.86
Electrical contractor
Electrical box and breakers
Water/hydrant
Snow removal
34. Gross rental receipts for the period of July 1, 1994,
throuqh June 30, 1996 are as follows:
GROSS RENTAL RECEIPTS
7/1/94 to 11/1/95 to
SUITE LESSEE 10/31/95 6/30/96
101 Star Auto $25,600.00 $12,800.00
102 RRIC $13,225.28 $ 6,612.64
103 RRIC $ 5,836.05 $ 5,187.60
(rented to 1/95
104 ,
105 Rock Solid $22,320.00 $11,160.00
106 ,
107 Smith's Auto $41,880.98 $12,700.00
(rented suite 106
on 10/1/94 , vacated
on 9/30/95)
108 Interpac $ 1,260.00 $ 5,040.00
(rented 9/1/95)
109 RRIC $ ],120.88
(rented 10/1/95)
'l'O'l'AL 'l11,aU.lt 'U,IOO.U
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35. The Lease provides, inter AliA, that Landlord is
responsible for initial water, fire hydrant, electric, repair and
maintenance of electrical service and snow removal.
36. Pursuant to the Agreement dated August, 1995, Landlord
is also liable to plaintiff for ten (10\) percent of the gross
rental receipts, in the amount of Sixteen Thousand Four Hundred
Seventy-Four Dollars and 32/100 ($16,464.32). 37. Pursuant
to the Addendum to the Lease dated June 30, 1994, Defendant is
also entitled to a refund of a "condo" deposit in the amount of
Eight Thousand Dollars ($8,000.00) plus ten and half (10.5\)
percent interest. The accrued interest is Two Thousand Two
Hundred Ten Dollars and 08/100 ($2,210.08) in the event that a
proposed sale of the building is not finalized.
38. The sale projected by the Addendum was never finalized.
39. As Receiver for the property appointed by this Court,
plaintiff i. al.o respon.ible to provide for these .ervice., a.
well as. to approve and pay all operating expenses for the
property pursuant to the Court's Order of May 28, 1996.
40. Defendant has not been compensated by either Landlord
or Plaintiff for his payments for service. on their behalf or for
his service. as property manaqer.
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AWFIDAVIT
I verify that any facts not of record set forth in the
foreqoinq document are true and correct to the best of my
knowledqe, information, and belief. I acknowledqe that any
false statements herein are made subject to the penalties of 18
Pa.e.s. Section 4904
authorities.
relatinq to unsworn falsification to
Date
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PROPERTY MANAGEMENT, INC,
Plaintiff
IN THE COURT OF COMMON PLEAS
CUMBER~~ CO~{, PENNS1LV~.rA
v.
NO.
RORY SMITH, individually and
trading as SMITH'S AUTO,
Defendant
CONFESSION OF JUDGMENT FOR MONEY
AND IN EJECTMENT
COMPLAINT IN CONFESSION OF JUDGMENT
AND NOW, comes Plaintiff, Property Management, Inc., by and
through its attorneys, the Law Offices of Stephen C. Nudel, and
respectfully files this Complaint for Judgment by Confession as
follows:
1, Plaintiff is Property Management, Inc., with a place of
business located at 1300 Market Street. Lemoyne, CUmberland
County. Pennsylvania 17043.
2, Pursuant to this Honorable Court's Order of Court dated
May 28, 1996, Plaintiff is the duly appointed Receiver for
premises located at 5215 Simpson Ferry Road, Mechanicsburg,
CUmberland County, Pennsylvania 17055. A true and correct copy
of the May 28, 1996, Order of Court is attached hereto and made a
part hereof as "Exhibit A",
3. Defendant is Rory Smith, individually and trading ..
Smith'. Auto, with a place of business located at 5215 Simpson
Ferry Road, Mechanic.burg. cumberland County. Pennaylvania 17055.
4, Ward Group, Inc. ("WARD") is the record owner of the
premises loc~ted at 5215 Simpson Ferry Road. Mechanicsbut!.
CUmberland county, Pennsylvania.
1""'\
~
5. On or about June 30, 1994, Defendant executed a Lease
Agreement ("LEASE") with Ward for 6,250 square feet of office and
warehouse space known as Suite 107, 5215 Simpson Ferry Road,
Mechanicsburg, cumberland County, Pennsyh'ania (" PREMISES"). A
true and correct photostatic copy of the Lease is attached hereto
and made a part hereof as "Exhibit B",
6. The initial term of the Lease expires September 30.
1997. Defendant has defaulted under the terms of the Lease and
the Lease has been terminated.
7. RTC Mortgage Trust 1994-N2 ("RTC") is the record owner
of a mortgage secured by the Premises, RTC has initiated
foreclosure proceedings against the owner of the Premises.
8. On April 1. 1996. a hearing ("HEARING") was conducted
in the Court of Common Pleas of Cumberland County regarding RTC's
Petition for Appoint~ent of Receiver.
9. Defendant was notified of and was present at the
Hearing.
10. At the close of the Hearing, Judge Oler entered an
Order directing the tenants of the Premises (including Defendant)
to pay rent to RTC's agent. AMRESCO Management, Inc, ("AMRBSCO")
and directing ate and Ward to appoint a property manager for the
Premises. A true and correct copy of the April 1. 1996. Order of
Court is attached hereto and made a part hereof as "Exhibit C..
U. On or about MAy 23. 1996. Otlfendant was notified 'by
Plaintiff that Plaintiff was the managing agent for the Premises.
,,---..
.......
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. '
A true and correct copy of the May 23, 1996, letter from
Plaintiff to Defendant is attached hereto and made a part hereof
as "Exhibit D".
12. On or about May 31, 1996, Defendant was notified by
plaintiff that, pursuant to this Honorable Court's Order dated
May 28, 1996, ("Exhibit A") Plaintiff was appointed Receiver for
the Premises and had assumed all duties of managing the Premises
on behalf of RTC. A true and correct copy of the May 31, 1996,
letter from plaintiff to Defendant is attached hereto and made a
part hereof as "Exhibit E",
13. The Lease has not been assigned except as stated
herein.
14. No judgment has been entered on the Lease in any
jurisdiction prior to this action.
15. Judgment is not being entered by confession against a
natural person in connection with a consumer credit transaction.
COUNT I: DAMAGES
16. The averments set forth in paragraphs 1 through 15 are
incorporated herein by reference as if set forth at length.
17. The Lease provides, inter alia. for the payment of
rene. late payment charges, common area maintenance charges.
prorata ahare of increase in real estate taxes and, in the event
of a default, costs of suit and attorney. fees in the amount of
ten percent (10\1 of Plaintiff's claim against Oefendant.
.........
1"'..
"
18. Defendant has defaulted under the terms and condicions
of the Lease for failing to pay rent and ocher charges when due.
Defendant has failed to pay rent and other charges since before
April 1, 1996.
19. The May 28. 1996, Order of Court provides, inter alia,
that plaintiff has the duty to collece all rents and payments due
for the properey.
20. Pursuant to the Addendum to the Lease dated June 30,
1994. (attached hereto as part of "Exhibit a-), Defendant may be
eneitled to a credit for refund of "Condo' deposie in the amounc
of $8,000 plus 10.5 percent, The accrued interese is $2,210.08.
21, Defendant is liable to Plaintif~ for the period of
April 1, 1996. ehrough October 1, 1996, as follows:
Amount Past Due (Rent) $
Amoune Past Due (Late Charges) $
Amount Past Due (CAN) $
Amount Past Due (Taxes) $
Less Credit for Condo Deposit/Interest ($
Attorneys Fees (lOt) $
11,112. SO
2,460.00
625.00
97.93
10,210.08)
408.54
TOTAL
$ 4.493.89
22. Defendant was provided with written notice of default
on August 21, 1996. A true and correct copy Of the August 21.
1996, default notice is attached hereto and made a part hereof a.
'lxhibit r.,
23. The Leue provides, inter alia tb&t in the event of an
uncured default by Defendant, Plaintiff may confe,. judgment
again't Defendant.
~
~
WHEREFORE, Plaintiff demands judgment in the amount of
$4,548.89 in accordance with the terms of the Lease as authori:ed
by the Warrant appearing in the attached Lease plus interest,
costs of suit and attorneys fees.
COUNT II: ALTERNATIVE DAMAGES
24. The averments set forth in paragraphs 1 through 19 are
incorporated herein by reference as if set forth at length.
25. Pursuant to the Addendum to the Lease dated June 30,
1994, (attached hereto as part of "Exhibit B"), Defendant may be
entitled to a credit for refund of "Condo" deposit in the amount
of $8.000 plus interest.
26. It is believed and therefore averred that no credit is
due,
27. Defendant is liable to Plaintiff for the period of
April 1, 1996, through October 1, 1996, as follows:
Amount Past Due (Rent)
Amount Past Due (Late Charges)
Amount Past Due (OM)
Amount Past Due (Taxes)
Attorneys Fees (10')
$ ll,1l2.50
$ 2,460.00
$ 625.00
$ 97.93
$ 1,429.54
TOTAL
$ 15,724.97
28, Defendant was provided with written nOtice of defsult
on AuglotSt 21. 1996. A true and correct copy of the August 21.
199', default notice is actached hereto and made a part hereof as
"Exhibit '-.
"'""
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"
34. The Lease provides. inter alia that in the event of an
uncured default by Defendant, Plaintiff may confess judgment
against Defendant.
WHEREFORE. Plaintiff demands judgment in the amount of
$34,988,72 in accordance with the terms of the Lease as
authorized by the Warrant appearing in the attached Lease plus
interest, costs of suit and attorneys fees.
COUNT IV, EJECTMENT
35. The averments set forth in paragraphs 1 through 34 are
incorporated herein by reference as if set forth at length.
36. De~endant has defaulted under the terms and conditions
of the Lease by ~ailing to pay rent and other charges as set
forth in Count I of this Complaint.
37. Section 6,6 of the Lease provides, inter alia, that
storage o~ items is not permitted in any outside area or any
common area; a violation of section 6.6 constitutes an event o~
de~ault.
38. Defendant has defaulted under section 6.6 o~ the Lease
by storing vehicles and automobile parts in the parking lot and
on the grounds directly behind De~endant's shop.
39. Defendant vas provided written notice o~ default on
August 27. 1996. A copy of the Augu.t 27, 1996, default notice
is attached hereto and made a part hereof a. -Exhibit G".
40. The Lease provide.. inter alia. that in the event of an
uncured de~ault by Defendant, Plaintiff may confe.. judgment in
eJectment against Defendant for po.s...lon of the Prem1....
.......,
-..
RTC MORTGAGE TROST 1994-N2, . IN THE COURT OF COMMON PLEAS
.
: CUMBERLAND COUNTY, PENNSYLVANIA
plaintiff .
.
. NO. 3312 civil 1991
.
v. :
:
WARD GROUP, INC.,
.
.
Defendant .
.
.
.
ORDER OF COURT
AND NOW, this 2.<z>t~ day of Kay, 1996, upon consent of the
parties through their counsel, it is ORDERED AND DIRECTED that
this Court's Order dated April 1, 1996, is amended to designate
Property Management, Inc. as the Receiver and to specifY the
duties of and compensation due Property Management, Inc. as set
forth in the five numbered paragraphs in Schedule A attached
hereto.
By the
EUGENE E. PEPINSltY, JR., ESQUIRE
210 Walnut Stre.t, P.O. Box 11963
Harriaburq, PA 17101-1963
For the plaintiff
THEOOORE A. ADLER. ESQUIRE
2331 Market Street
caap Hl11, 'A 11011
For the Defendant
~
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s::-m:ou: A
1. Duties of Property Hanaqel:lent, Inc. ("PHI"). PMI shall
perform the following duties:
a. Collect and deposit all rents and payments due for
the property into a checking account established
at PNC Bank.
b. Approve and pay all "operating expenses" for the
Property.
c. Pay any other expenses of the Property as directed
by Plaintiff.
d. Submit complete monthly operating financial
statements to.Plaintiff.
e. Arrange for and supervise PHI employees or outside
contractors to perform regular maintenance work on
the Property.
f. Arrange for and supervise determination of major
repairs and, with Plaintiff's approval, proceed
with the work.
q. Negotiate and prepare all leases.
h. Arrange for advertising and promotion of rentals
as required.
Comp.nsation due PHI. As compensation for services
PMI is to be paid the fOllowing as a priority operating
2.
r.ndered
expense:
A. Manaaement Fee. As compensation for its continu-
inq manaqement services, PMI shall be paid a man-
agem.nt fee of five percent (5\) of the monthly
qross income collected Of the Property, payable
each month as collected or a minimum of $500.
B. Leasina Commission. The following commissions
shall be deemed earned by PMI upon delivery of an
executed lease by a prospective tenant. These
commi..ions shall be payable upon receipt from a
tenant of the first month's rental. The commis-
sion .chedule is as follows:
1. Five perc.nt (5') of lease y.ars one
through five.
~. Two and on.-halt percent (~ 1/2\1 of the
.ixth and any lea.e year thereafter.
:s. "OpuatbV Exp.n..... derin.d. The tollovil\9 shall be
included es operating expen.es or the Property:
A. PMI Compensation. This shall be considered a
priority operatinq eXpenses and shall be paid from
~
~
rents collected prior to pay:ent of any other
operating expense or other expense or to pay:ents
to Plaintiff.
B. All actual maintenance work (not to include main-
tenance coordination or supe~,ision) perfo~ed on
the Property by PMI e:ployees.
C. All costs of outside contractor work perfo~ed on
the Property at cost.
D. All purchases of equipment and parts for sole use
of the Property at cost.
E. Costs of utilities and services necessary to the
Property.
F. all real estate taxes, insurance premiums, assess-
ments for municipal improvements. and qovernmental
levies on the Property.
G. All purchase of supplies, materials, and advertis-
ing and promotion for the Property at cost.
4. OVUer Consent. PMI will first secure the consent of
Plaintiff before making expenditures in excess of the sum of One
Thousand and 00/100 Dollars ($1,000) in connection with the costs
of outside contractor work, purchase of supplies and materials,
and the purchase of equipment and parts.
5. Rental Collection and Payments. PMI shall collect all
rents and payments due under the leases and shall pay all operat-
ing expenses and other expenses of the Property; provided,
however, that in the event rental collections are not sufficient
to pay all such expenses, PMI shall promptly notify Plaintiff and
detail for Plaintiff the amount of suchshortaqe and the vendors
or other persons who cannot be paid by reason thereof. PHI shall
have no responsibility to fund such operatinq deficit in any way.
all vendors and other creditors of the Property shall bill
Plaintiff, in care of PHI at such address as PHI shall de.iqnate.
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.
'.
LEASE AGREEMENi
This lease, entered into upon agreement of Landlord and Tenant
to be effectlve as herinafter set forth, by and between Ward ureup
Inc. having their principal pla~e of business at 1=51 Wallace St.
York, FA 170+03.
(referred to herein as the "LANDLORD" OR "LESSOR").
AND
Sl"i';::'s Auto
S:!l~ Simpson
having their prln~ipal place ef CuSlness at
terry Road, Mechanicsburg, FA 170SS.
(referred to herein as the "TENANT" OR "LESSEE").
RECITALS
A. Ward Group Inc. is the owner of the property lo~ated en
~21S Simpson Ferry Road, M.~hani~sburg, FA 170S5
("The Frcp.rty~)
B. Constructed on sald property is an cffi~e/lndustrlall
warehouse/~torage building, which has a mal1lng address of S:lS
Simpson Ferry Road, M.chanlCsburg, FA 170S5.
C. Landlord desires to lease to Tenant and Tenant deSlres te
leas. from Landlord.
D. Landlord and T.nant wish to h.rein set forth their entlre
agreement regarding the L.a..O Pr.mises.
NOW, THEREFORE, in consideration of the premises, the mutual
terms, covenants and conditions herein contained, and the rent
reserved te be paid by Tenant to Landlord, the partles hereto,
lnt.nding to be legally bound, dO hereby agree and covenant as
follows&
.
1. PREMISES. Landlord lea..s to Ten"nt, and Tenant lea~..
from landlord, the Le"..d Premi... upon all of the terms "nd
condition. .et fortn in this Lea...
Suite , 107
...are!loue
Sq. F't. ottic.
t,W S~ Ft.
. 5750 $ lh37.S0
. r ~ 150.00
II 0 a 11 $ lSlIl.SO
2. COMMON AREAS. The area. and fa~ilitie. within and around
the Building/Pre.iGe. .hall be hereinafter ref.rred t~ a. the
"C.:lmm.:>n Ar.a- and .hAll tI. for the ~~,mAlQn anO ,).nnt u.. and b.nefit
of Landl~rO. T.nant and ~th.r t.nant. and o~cupant. of the Building,
AnO thear re.p.ctive ..ploy.... ag.nt., .ubt.n.nt~, conc...ionAire.,
llc.n...., cu.tOAl.r. and oth.r 'nvit....
.~
~
3. . ':S';l,.,!.
2 3.1 Terms: The term of this Lease shall =e :0:
years and ending Sep~em::.er 30. 1997 unless
sconer terminated pursuant to the terms of ~h~s Lease wi~n at least
N!NETY (90) DAYS prior written notice to La~dlord. Tenant shall
nave the option to renew this Lease in accordance wi:h the
provisions of Paragraph 3.2 of this Lease. If Tenant does not
exercise renewal option, Tenant must give NINETY (90) DA1S written
not.ice prior to e~iration of Lease of :'and1ord of Tenant.' s
intention to vacate property.
3.2 option to Renew: Landlord hereby grants Tenant the
right and privilege to renew this Lease for a period of ONE (1)
YEAR. such extended term to begin upon the expiration of the term
of this Lease, and all the terms, covenants and provisions of this
Lease (with the express exception of the rent and taxes) shall
apply to such extended term; provided, however. that if Tenant is
in default at anytime during the term of this Lease. any option to
extend the term of this Lease beyond the then-current term shall
become i=ediately null and void without notice to Tenant. If
Tenant shall elect to exercise the aforesaid option to extend.
Tenant shall do so by giving to Landlord notice in writing of
Tenant's intentions to do so not later than N!NE~ (90) DAYS prior
to the expiration of the term of this Lease. Tenant's right to
extend the term of this Lease is expressly conditioned upon
Landlord and Tenant agreeing to the rent and taxes for the extended
term; if such agre~~ent is not reached within SIXTY (60) DAYS of
Tenant's electing to exercise Tenant's option to extend, Tenant's
right to the extended term shall become i~~ediately null and void
without notice to Tenant. Any agreement between the parties with
respect to the rent and taxes for the additicnal term shall be set
forth in writing, signed by the parties hereto, and said writing
shall be attached to this Lease and made a part thereof.
4 . R!.'fl'AL.
4.1 Basic Monthly Rental: Tenant ~rees to pay to
Landlord as a Basic Monthly Rental the su,'lI of. S 15117.50
(yielding a one (1] year rent of $ 19,050.00 ). whiCh rent
shall be payable in advance on the first (1st) day of each calendar
month beqinning October 1, 1995 upon >.qre~'llent between
Landlord and TenAn~.
"a payme:1ts of rent shall be made by Tenant to
Landlo:d without notice or demand, at such place as Landlord may
from time to time designate in writinq. For the p:esent, Landlord
designates 5215 S1:pacft FuT)' ll.oa<<. Mec!lan1callO.&:-I. PI. .1.70)5
as the place far t.'le 1lIAking Of the payment of nn~. Checks must be
drawn on a Pennsylvania bank and are subject to collection. Any
extension of time for the payment of any monthly instalL~ent of
rent s~al1 not be a waiver af the r19hts of the Landlord to insist
on havin9 all subsequent payments of rent made at the ti=e herein
specified. If the rent 1s "~t paid by the tenth (10) day after lts
-..
,-..,
~'~e da~e, (ceter=:\i~ed by the post :na=k ca~e). t~e=e s;la.!.~
t~e=eafte= a $20.00 pe: day se=vice c~a=ge ~= Te~a~~ !o: ea=h
& d ,. . . . h .
o. e_~n~~ency, WnlC. serVlce cha:ge shall be de~~ec to
additional rent.
::e
ca.::.
be
4.2 Securi:y Deposit: Tena~~~as;aic ~o ~a~dlorc wi~h
the execution of this Lease the S\:.':l of ~ 1::, .:..;
which represents the Basic Monthly Rent r' .- .. - a:::::U:1t
to be retained until the expiration of the current te~.
. 4.3 Common ~rea Maintenance: Te~ant a;rees te pay to
ta~dlord a Co~~on ~rea Maintenance fee 0: ten (:0) cents ~er S~4a=e
feot leased per annum. This amount is due upcn the e:<ec~~; ot"-c?:
this )..greement and upon each subsequent anniversary date ~ ~~, "..
5 . T}J(ES AND UTILITIES.
5.1 Payment of Real Estate Property Taxes: Landlord
shall pay all real estate property taxes applicable to the Lease
Premises during the te~ of this Lease. Ho~ever. Tenant shall pay
to Landlord, the proportionate share of the amount, if any. by
which the real estate taxes for the total Premises increase over
these for the 1994 tax year. The ~~ount to be paid by Tenant shall
be determined by the product of (a) the ~~ount of the increase of
real estate taxes assessed against the entire Premises over the
1994 tax year. and (b) a fraction, the nu=.erator of which is the
square footage of the floor area of the Premises leased to Tenant
and the denominator of which is the total Sq'4are footage of the
floor area of the total Premises. ;.......y a:::ol:......ts due ur.der this
provision will be billed to the Tenant by the Landlorci when the
real estAte property taxes are due, And are payable by the Tenant
to the Landlord with the next basic monthly rental pai~ent.
5.2 Utilities - Landlord's Obligation: Landlord agrees
to pay for all initial water, fire hyd=~nt. electric, sewer, and
sept.lc service charges resulting from the provisions of such
services to the Leased Pre.mises. However, Tenant agrees to
rei:rJ:Jurse Landlord for Tenant' s portion of said charges, upon
receiving notification from Landlord set fotlth in Paragraph 5.3
hereof. Landlord reserves the right to inter:-upt the supply of
water and also sewer/septic service when required by reason of
accident or of repairs. alterations or L':Tprove.':lents until such have
been completed. Landlord shall not be liable in da:naqes or
otherwise, for any failure to furnish or interruption of the
services of water and/or sewer/septic.
5.3 Utilities - Tenant's Obligation: Tenant shall pay
prior to delinquency all charges for air conditioning. heat, gas,
light. electricity, telephone or any other cC:::1l'..nication or utility
services used in or renderl!<i or supplied to the Leased Prel:lises
throughout the term of this Lease and shall ir.de.':lnify Landlord and
uve Lu:dlord ha~l.ss against &.....y liability or da:naljjes on such
acc~unt. Tenant also agrees to pay the share of sewer, septic,
""ater. ;~S, .,'eer-.r'~ ~nd !ire hz.d.:ant char;es p"'~;-'"'r"i"~.:lly
-
,-..,
divided by La~dlord. In adCltion, Tena~t shall mai~~ain and keep
in repair the heating and cooling u~its in said ?=~ises. La~dlord
reserveS the right to interrupt the supply of suc= utilities when
required by reason of accident or of repairs, alterations or
improvements until such have been completed. Landlord shall not be
liable for darnages or other...ise, for any failure to furnish or
interruption of such services. For utility break~ow~ payable by
Tenant refer to Exhibit "B" {attached} to this Lease ;\greement.
5." Electrical Service - Repair; Overload: La~dlord
shall be responsible for the repair and ruaintena:lce of the
electrical system providing service to the Leased Premises;
provided, however, if Tenant installs any electrical equip::lent
which overl.cads the lines within the Leased ?re.:nises or the
Euilding, Tenant shall, at Tenant's own cost and ex?ense, prcmptly
make whatever changes are necessary to re."l1edy such condition and to
comply with all municipal require."l1ents and all require.'llents of
Landlord.
5.S Janitorial and Maintenance: Tenant shall provide and
pay for all janitorial, repair and maintenance ex?enses within the
Leased Pre.~ses, including the repair and maintenance of the door
or doors leading thereto and the cleaning of all carpets, rugs and
floorings.
5 . 6 Common Area Expenses: The CClmIon Areas shall be
subject to the exclusive control of Landlord. Landlord shall
operate, manage, and ruaintai::. the Co=on Areas, all in such ma.:1ner
as Landlord may from time to time determine, after giving advance
notice to the Tenant (except in an e."l1ergency) and Landlord shall
pay all expenses resulting t.~erefrcm. L~~dlord hereby expressly
reserves the right from time to time, after giving advance notice
to the Tenant, to constrict, maintain and operate lighting and
other facilities, equiplllent and signs within the C=on Areas; and
to allow others to use the Common Areas for any pu-~sel to change
the si:e, area, level, location and arr~"lgeme.~t of the COlmlon
Areas; to lazliscape the Cc::mon Area; to requlate parking by Tenants
and other occupants and their respective e.~ployees, agents, sub-
tenants, concessionaires, and licensees; to close temporarily all
or any portion of the CCl!:':\on Areas for the pu-~ose of making
repairs, changes or alternations thereto, or perfor.ning necessary
maintenance in con.~ec:tion with closings resulting frOlll adverse
weather conditions or for any other purposes: to establish, codify
and enforce reasonable rules and requlatic:1S with respect to the
cClmIon Areas and the use to be made thereof. '!'ena..~t agrees that it
will abide by, keep and observe all reasc.cable nlles and
requlaticns which LAndlord may malce from tillle to time for the
mana9~~ent, safety. care, and cleanliness of the Leased Pre~ses,
the Building and its Cc:muon AreAS and surrou.:'ld.1.:1g c;;rollr.d.s, the
parlcing of vehicles and the preservation of good order therein. as
well as for the convenience of other occupants and tenants of the
Buildinc;;.
~ -.--
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-.
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.5.7 Snow Removal: Landlord will be respensible for snow
removal ~rom the par~in9 areas. Tenant will be respensible for the
snow r~~oval from sidewal~s or any other areas.
6. USE.
6.1 ~se: The Premises shall be used and occupied by
Tenant exclusively as a business office/industrial/warehouse'
storage area. Tena.nt agrees that the pre.':Ii.ses shall be used for no
other purposes without obtaining the prior w:-itten consent of
Landlord.
6.2. suitability: If the Premises are rentable as of the
date of execution hereof, then Tenant, by execution of this Lease,
shall be deemed to have accepted the Premises in the condition
existing as of the date of execution and, in any event, thil Leale
shall be subject to all applicable :onin; ordinances and to any
municipal, county and state laws and requ1&tions governinq and
regulating the use of the Premises. Tenant acknowledges that
neither Landlord nor any agent of Landlord has made any
representation or warranty as to the suitability of the Premise.
for the conduct of Tenant's businels.
6.3 Uses Prohibited I
(a) 'l'enant shall not do or PI::l\it anything to be
done in or about the Premises/Building which will lncreue tI'le
existing rate of insurance upon the Premi.es or CAuse the
cancellation of any insurance policy covering .aid Premise, er any
Building of which the Premises may be a part. Nor shall TenAnt
sell or permit to be kept, used or sold in or about said Premises
any articles which may be prohibited by a standard form policy of
fire insur&nCe.
(b) Tenant shall not do cr pe::l\it anything to be
done in or about the Premises or the COllDOn )..rus which w111 in any
way cestruct or interfere with the rightl of ether Ten&ZlU ar
occupants of the Building or injury cr annoy them or use or allow
the Premises to );)e used for any unlawful or objlctionabla purpose.
Nor shall Tenant cause, maintain or permit any nuisance in, on ar
about the Premises, or comm1t or s~ffer to be c~tted L'Y waste
in or upon the 'remises ar common Areaa.
6." Sign: Tenant shall not display or erect any
lettlrin;, .ign, advertiaement, awnino or other pro,ection in or
upon the Property or the exterior of the llolllding provid.14,
hOlo/ever, with the prior written conlent of L&n4lor4 which shAll not
be reasonably withheld, Tenant may erect on the entrance d.oor to
the Leased PrenU.s../auildln; an &fproprtatt and tuteful a19ft
indic&tinCJ the n.va. and trad-.ark 0 the bua1n..s to be CCMUCte4
by Tenant with1D the Prem1...,lu1141n;.
-
-
. 5.5 Fleor Lead: Tenant shall not ~:ace a load upon any
floor within the Leased pre.'llises exceeding t:,e fleor load per
square foot which s~ch floor was designed to carry and which is
allowed by law.
6.6 Outside Storage and Trash: So storable will Oe
allowed outside of the Building and on or in any Co~on ~reas. All
trash must be placed in trash receptacles. A violation of this
paragraph shall constitute an event of default by Tenant.
7. MAIN'l'E.'li\NCE AND REPAIRS; ALTEAAT:ONS ).h"I) ADDITIONS.
7.1 Landlord I s Obligations: Subject to the provisions of
Paragraph 12 of this Lease, and except for damage caused by any
negligent or intentional act or emission of Tenant or Tenant's
agent, employees or invitees, Landlord, or Landlord's expense,
shall keep in good order, condi tion and repair the founda dons,
exterior walls and the exterior roof of the Premises. Landlord
shall have no obligation to make repairs under this Paragraph 7.1
until a reasonable time after receipt of written notice of the need
for such repairs; provided, however, except in emergency
situations, Landlord shall, at Tenant's request, perform all or any
portion of repairs, alterations or improvements which it is
obligated to perform pursuant to this Lease. :n such event, Tenant
agrees to pay any additional expense io.cu=:ed by Landlord for
performing the aforementioned work after Tenant's business hours,
if so requested, in any event, such work shall be performed in such
a fashion as to cause the least interference with Tena.at' s business
operations.
7.2 Tenant's Obligations:
la) Subject to the provisions 0: Section 12 and 7.1,
Tenant, at Tenant's expense, shall make all necessary repairs and
all replacements to the Leased Pr~~ises' fixtures and all other
appliances and equipment used within the Pre~ses. Such repairs
and replacements shall be made promptly as and when necessary. All
repairs and all replacements shall be in quality and class at least
equal to the ori;inAl work.
Ibl Upon the expiration or earlier termination of
this Lease, Tenant shall surrender the Premises in a clean
condition, ordinary wear and tear, da.r.l.iloe by fire, ea.rt.."lc;u.a.ke, act
of God or the elements alone excepted.
Ic) Tenant shall at Tenant's sole cost and expense,
comply with all of the requiremenu of all county, municipal,
state, federal and other applicable gov.r~~.nt authorities, now
enforced, which may hereafter be in force pertainin; to its Use of
said Premises, any structural changes required by such autr~:ities
which are not caused by the act of neolect of Tenant shall be the
resFonsibility of the Landlord. Tenant, At its sole cost and
expense, agrees to repair 4nY da=age to the Pr~~ses caused by or
in corw~.ction with the r~val of mac~inery or equipment,
........
,~
- "" ~e.OJo-k ~.._.,l""re a~" mova'-le "'a".; "ie~- ; ~-l""l ~- w' -...-....
_a........ _"... , .......--... ..~ H i.J r ........ ...., ..._ -..\,,0,...., .................
1, ,-.-Ion -"'e-e-o "epa''''ng "he ~loor and -'-ch'.,~ .~.. -01'--:--
.:...":\__~..._ .........,.. --- ... - ,. ,..w....,. _.~" ""..~ ". ."--.t":t
the walls where re~ired by Landlord to Landlord's reasQr-a:le
satisfaction. Tenant shall inde:n.'1ify the Lanc.lord olga ins: any loss
or liability resulting frcm delay by Tenant in so surrendering the
Premises, including without Limi ta tion, 01:-::; claims :nac.!;! by any
succeeding Tenant founded on s~ch delay.
7.3 :.andlord' s Rights: !n the e'/ent ':'enant fails to
perform Tenant's obligations unc.er this Paragraph 7, Landlerd shall
give Tenant notice to do such acts as are reasonably required to so
maintain the Pre.~ises. :f Tenant shall fail to do such work and
diligently prosecute it to cempletion, Lar.dlord shall have the
right but not the obligation to do such acts and expend such funds
at the expense of Tenant as are reasonable re~Jired to perform such
work. Any amount 50 expended by Landlord shall be paid by Tenant
tlromptly after demand with interest at twelve (12\) percent per
annum from the date of such work. Landlord shall have no liability
to Tenant for any damage, inconvenience or interference with the
use of the Premises by Tenant as a result of performing any such
work.
8. E.~Y BY LANDLORD. Landlord and Landlord's agents shall
have the right at reasonable times to enter the Premises and/or
Building to ins;:ect, to maintain, repair, make alterations or
additions to the same, or any portion thereof, or to show the
Premises and/or Buildin9 to prospective purchaser, Tenants or
lenders. Landlord may, at any time, place on or about the Pr~~i5es
any ordinary "For Rent" signs. Tenant hereby waives any claim for
abat~~ent of rent or for d~~ages for any injury or inconvenience to
or interference with Tenant'. business, any loss of occupancy or
quiet enjo:illlent of the Premises Ind any other loss occasioned
there~y.
9. L:~S. Tenant Shall keep the Pr~~ises and the Building
free from any Uens arisin9 out of work performed, materials
furnished or obligations incurred by Tenant and shall ind~~ify.
hold harmless and defend :'andlorc1 from any liens and/or
enc~~ranc.s ariSing out of any work perfQ~e4 or materials ~~at
are furnished. by or at the direction of Tenant. In the event that
~enant shall not, within twenty (20) days followin; the imposition
of any such lien, cause such lien to be released of record by
pai'l1\ent or posing of a proper bond, La..-:dlord shall have, in
addi tion to aU other re:nedies provided herein and by la...., the
:i9ht, but not the ob119attons, to CAuse the S~~. to be released by
such ~eanl IS it shall ~eem proper, lncludin; pai~ent of the claim
;1v1n; rise to luch 11en. ~ll such s~~s paid by Landlord and all
O!x;:enses incurred in contlect10n therewith, includin9 attorney's
flel and cost shall be payable to Landlord by Tenant on de~nd ....ith
intere.t It the rate of twelve (12\1 percent per annum. Landlord
shall have the rlqht At all time. to post and keep posted on the
?re:nlles Any notices pemitted or required by law, or which
ta~dlcrd shill deem proper, for the protection of Landlord Ind ~~e
?rl:nisel, .:'lli ,~.y nther party havin; an intere"," th..r"\n. from
~ ~.....
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~echanics and mate=iaL~en's liens. :enant shall give te :a~clcrd
written notice at least ten (10) business days pri:::r 0: ~he
ex~ected date of cc~ence.~ent of any work relating to alte:a:icns
or additions to the Pre.~ises.
10. INDE."lNIT"l.
10.1 Inde.-;mi ty: Tenant shall inde:,::.nify and hold Landlord
harmless frem and against any and all claL~s of liability for any
injury or d~~ge to any person or property a:ising fre~ the willful
er negligent ccnduct, acts or omissions of Tenant, its agents or
employees. In no event shall Tenant be li~le to Landlord for any
loss or d~~aqe (except as described in the prior sentence] caused
by fire or other casualties, or for any ordina::-i use, wear and
tear, acts of Gold or the. elements, the insu:ance for its recovery
of such losses.
10.2 Exemption of Landlord fro::! Liability: Landlord
shall not be liable for injury to Tenant's business or loss of
income therefrom or for damage which may be sustained by the
person, goodS, wares, merchandise or preperty of Tenant, its
~ployees, invitees, customers, agents or contractors or any other
person in or about the Premises or the Building, ca'.lSed by or
resulting from fire, steam, electricity, gas, water or rain, which
may leak or flow from or into any part of the Pre::lises or the
Building, or fro/ll the breakage, leakage, obst.:uction or other
defects of the pipes, sprinklers, wires, appliances, pl~~ing, said
d~~ge or injury results from conditions arising upon the sources
or places and regardless of whether the cause of sucb damage or
injury of the means of repairing the sa.'ne is inaccessible to
Tenant. Landlord shall not be liable for any d~~aqes arising from
any acts or neglect of any other Tenant or '=enants of t.~e Building.
Notwithstanding the foregoing, Landlord shall be liable to Tenant
for the conduct, acts or omissions of its agent, employees and
representatives which conduct, acts or cmissions La.'ldlord cay
reasonably, by virtue of its directions and supervision, exercise
control.
11. INSURANCE.
11.1 Liability Insurance: Tena:\t shall, at Te:\ant'a
expense, procure and maintain at all times duri:\; the term of this
tease, or of this Lease as extended, a policy of cecpre.iensive
public liability insurance insurinq Tenant, with Landlord as an
additional insured, aqainst any liability arising out of the use,
cccupancy, or maintenance, of the Pr~~ises and appurteo.ant area.
Such insurance shall at all times be in an ~~ount of not less than
$100,000.00 combined single li.'lIit for the injury to or death of any
ene person in anyone occurrence for Bodily Inju..z' ino1""""9 death
and property damage and not lesl than S300,000.00 as for injuries
to more than one person. The limits of such insur~'lc' shall not
lL~t the 1i,hl1ity of Tenant. Tenant s~~ prc=ptly deliver to
Landlord certificates of insurance eviden::ing the existe:.::. and
~"ounts ot F"C~ .I.n':\'.ral\ce. In the event ':'e:lAnt hils to T"tccure
......
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1r.~ ~aJ.' ~~ain su~'" l ~s"~a~~e Laft~' ~~.. ~ay I"'... s....a' ~ ~~. "',.
.OIl ,I;.;" .,1 ...... -.. _.1 .....- .i""", ..~-""-.... I.t -.......oO -- ..-.. --
required to) procure s~~e at Tenant's ex~ense a::e: ten (~J) :ays
prior 'flrit~en no':ice. No such poli:y sha:l te ca~=e:3.~:e c:
subject to reduction 0: coverage or other :::::di::.::atic:-: except a:te:
thirty (30) days prior written notice to Land!o:d b,/ the insurer.
All such policies shall l:le ....ritten as pri::lar-; ~olicies, not
cont:ibuting with and not in ex:ess of c=~e=a;e whi=~ t~ :~~Clo=d
may carry. Tenant shall, within t....enty (20) days pr:.or to the
expiration of such policies, furnish Landlord ....i th renewals or
binders or Landlord may order such insu=ance and charge t.!':e cost tc
Tenant, which amount shall be pa,/able to Tenant upon de::land.
Tenant shall have the right to provide such :.ns~rance co...e:age
pursuant to blanket policies obtained by ':'enant pro'..:.:ed such
blanKet policies expressly afford coverage to the Pre.~ses and to
Landlord as required by this Lease. Landlord shall ma:':'ltain a
policY of general liability insu=ance i:-:su=:.."lc; Lanci!.ord :0: inju..--y
to persons and property occurring in the Co~on Area with policy
limits of at least $1,000,000.00. Upon Tenants' written request,
Landlord will deliver to Tenant written ev:.dence of such coverage.
11.2 Property Insurance: Landlord shall obtain and keep
in force during the term of this Lease a policy or policies of
insurance covering loss or da:nage to the ?re::ises, the Buildi::.C; and
the Common AreaS, but not Tenant's fixtures, equi~ent or Tenant
improv~'llents, in such ~ount as Landlord shall determine, providing
protection against all perils included within the classifica~on of
fire, extended coverage, vandalism, malicious mischief And speoial
extended perils Call risk).
11.3 Waiver of Subrogation: Each party hereto releases
the other party, its agents and employees to the extent of the
releasinc; party's actual recovery under its insurance policies,
from any and all liability for any loss or d~ge which ~y be
inflioted upon the property of such party, notwithstandinc; t.'lat
such loss or da:nage shall have arisen out of the nec;lic;ent or
intentionally tortuous act or omission of the other party. its
agents or employees, provided, however, that this release Shall be
effeotive only with respect to loss or da.:u;e oc:,.u-ring ~~ing such
time as the appropriate policy of insura:loll of t."1e party so
releasing shall contain a clause to the e~~ect that s~ch release
shall not affect the said policy or the ri;ht of the insured to
recover thereunder: each party hereto shall ~se reasen~l. efforts
to have suoh a clause inclUded in its said policies.
12. OA."lAGt OR DESTRUCTION.
If the Leased premi.es or t~e Buil~ln; should :e dL~c;ed
or destroye4 durin; the tem of this Leue by tire or other
insurable casualty without the fault of Tenant, :Andlord shall,
subject to the t1.'H that elapses due to adjust:lIent of fue
insurance, repair an<i/or restore the lJ::le to dL~ge or dutNction,
eJCcept AI otherwise provided in thl.1 Paragraph 12. ~ndlord'.
obligation under this paragraph shAll in no event exe..4 U-.. Icope
',: t!lI '.l:)rlt required to be dor.e 1::y t...ndlort4 in the original
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construction of the Bu:lc:ing. Lanc:lord shall not be re~ired to,
'-ut Te~ant sha'l ul ~h -'''e -'. s-a"-'- "e-~ a-e e- -..-..0.... ~--~'_..' ~'-
aJ .... .. _ ...--. "-- "--:" --.;.., .. ,..-... .. ....... -. ..............-...
ani' trade fix'tu:-es, si;:1s cr ot-he: ins:.a:':.a:.i:::1s t:.e:e::::c:e
installed by Tenant. Rent payable under this Lease shall :e abated
propor~iona:ely according to the floor area of the Leased P:~~ises
which is usable by Tenant, but if such da.':Iage '.leU caused by the
fault of ':'enant, there shall be no abate:::ent of rent. Such
abatement shall con~inue for the pericd ccr.-.:::encing with s-:..:ch da.::!age
or destruction and ending with the ccmplet:on by Landlord of such
'.lork of repair and/or reconstruction as Landlord is obligated to
do. If, however, the Leased Premises or the Building should be
da.':Iaged or destroyed by any cause so that Landlord shall decide to
demolish or to completely rebuild the Leased ?re:nises or the
Building, Landlord may, within six~y ISO) days after such da.':Iage or
destruction, give Tenant written notice of such decision and
thereupon this Lease shall be deemed to have te~inated as of the
date of the damage or destruction and Tenant shall L':'.lIlediately quit
and surrender the Leased Premises to Landlord. Notwithstanding the
foregoing, should Landlord be unable to repair the Premises within
ninety (90) days from the happening of a fire or other casualty,
Tenant may terminate this Lease at any tL':Ie thereafter.
13 . CONDE:iNA'l'ION.
(a) If the ?re.-:uses or any pcrticn thereof are taken
under the power of eminent d~ain, or sold by Landlord under the
threat of the exercise of said power all of which is herein
referred to as "conde=ation," this Lease shall ter::inate as to the
part so taken as of the date the conde.~~ing authority takes title
or possession, whichever occurs first. If more than twenty (20\)
percent of the Buildi:; is taken by cor.d~~ation. either Landlord
or Tenant may terminate this Lease, as of the date the cond~~~ing
authority taxes possession, by notice in writing of such election
within twenty (20) days after the cond~~inq authority shall have
taXen possession. Hewever, Tenant shall not have the right to
terminate this Lease urAer this paragraph in the event Landlord
supplies Tenant with replacement Premises cd facilities cccparable
to the portion of the Pre=ises cond~~ed. and in such event this
Lease shall apply wi~ equal effect to suc~ replac~ent Pr~~ises
and facilities.
(b) If this tease is not te~nated by either Landlord or
'l'en~~t then it shall remain in full force and effect as to the
portion of the Premises remainin;, provi~ed the rent shall be
reduced proportionately. All awards fer t~e tak~ng of any part of
the Premises or any ~aY=8nt made under the threAt of exercise of
power of ~nent domain shall be the prope~ of Landlord, whether
made as compensation for dL~inutlon of value of Leller-old or for
the taking of the fee or as severance d~~;es; provided. however,
that Tenant shall be entitled to an award or loss or dLou;e to
Tenant's trade fixtures and removable personal property. In the
event that this LeIse is not te~nated by relson of such
cond~~ation. Landlord shall, to the ex~ent of severance dL~;as
r,--lv,1 ~y ~ndlord in cornectl~n with r~ch cend~~ltion, and as
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:;oon as reaso:lably pcssible, repair a:lY da::lage :0 :he ?:e:::ises
ca~sed by s~=h cc~de=*~~icn except to the ex~e~~ t~a: ~e~a~~ has
been rei::ll::ursed the:-efore by the conde.'ll:l.ing aut::.or.ity. '!ena:1~
shall pay any ar..cunt in excess of such severance d~~ages re,~ire~
to complete such repair.
14. ASS:GNME...,--r A.'lD SilllLETT:NG.
14.1 Landlord' s C::msent Required: 'l'ena:1t shall not
assign, transfer, mor:gage, pledge, hypothecate or enc~~er this
Lease or any interest :herein, and shall not sublet the Pre.~ses or
any part thereof, without the prior written consent of Landlord,
and any attempt to do so without such consent being firsthand and
obtained shall be ~holly void and shall constitute a breach of this
Lease. .
14.2 No Release of Tenant: No consent by Landlord to any
assignment or subletting by Tenant shall relieve Tenant of any
obligation to be performed by the Tenant under this Lease, whether
occurring before or after such consent, assignment or subletting.
The consent by Landlord to any assigr~ent or sublet:ing shall not
release Tenant frolll the obligation to obtain Lal".dlord' s express
writteJJ. consent to any other assigruuent or subletting. The
acceptance of rent by Landlord from any other person shall not be
de~~ed to be a waive by Landlord of any provision of this Lease or
to be a consent to any assigr~ent, subletting or other transfer.
Consent to one assigruuent, subletting or other transfer shall not
be dee."lled to constitute consent to any subsequent assigr_':Ient,
subletting or o~~er transfer.
14.3 ~ttorney Fees: In the event Landlord shall consent
to a sublease or Ol.ssiqrJ'llent under this Section 14, Tenant shall pay
Landlord's reasonable attorney fees, not to exceed ISOO.OO,
incurred with giving such consent.
15. SUBORDIN~TICN.
15.1 Subordination: Thi. Lease is subject and
.ubordinate to the lien of all mortgages or deeds of trust now or
at any ti:1\1 hereinafter placed upon thl Property of 1Jhich the
Premises arl a part of or on, or against LAndlord'. in:erest or
estate therein.
15. ~ Subordination Agre~"llents I Tenant covenants and
ague. to execute and deliver upon dellla.n4 without ch&:ge, su~
further inatru."llent& in recordAble frcm evidencing such
subordination of this Least to the lien of any mortgages or deeds
of trun u lIIAY b4a U<;\lired by Landlord du=inIJ tha tam of tl:lis
tease, or of this tease ..s extended. Tenant herel:ly appoints
Landlord a. Tlnant's attorn_y-in-fact, irrevocably, to execute and
deli ver any such a9re~"lle.nta, inst.rulllenta, releaaes or ether
docu."lIents.
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. :!oS. 3 Quiet Enj oyrnent: Landlord covenan:s and agrees with
':enan~ that Ul=on 'renar.~ pay:.ng rent and t.'le o,;~er monetary su.-::s due
~::der this Lease, and perfc~ng its covenants and conditions,
':enant shall and may peaceably and quietly have, ho:!.d of this Lease
and of any of the mortgages or deeds of trust described above.
15.4 Atone:::ent: In the event of foreclosure or the
exercise of the power of sale under any mortgage or deed of trust
made by the Landlord covering the ?re.~ses, Ten~~t shall atcne to
the purchaser upon any such foreclosure or sale ~~d recognize such
purchaser as the Landlord under this Lease, provided said purchaser
expressly agrees in writinq to be bound by the ter::s of t.'lis Lease.
16. DEfAULT AND REMEDIES.
16.1 Default: The occurrence of any of the following
shall constitute a material default and breacll of this Lease by
Tenant:
(al MY failure by Tenant to pay the rent required to be
paid hereunder, where such failure continues for fifteen (151 days
after written notice thereof by Landlord to Tenant.
(b) MY failure by Tenant to pay any monetary SUO"llS
required to be paid hereunder other than rent where such failure
continues for fifteen (15) days after written no:ice thereof by
Landlord to Tenant.
Icl MY failure by Tenant to observe and perform any
other provision of this Leue to be observed or performed by
Tenant, where such failure continues for thirty (30) day periOd,
Tenant shall not be de~"l1ed to be in default if Te.c.a.nt shall within
such period c~ence such cure and thereafter diligently prosecute
the same to completion.
(d) The ma1rlT\9 by Tenant of any general. assig=ent or
general arrangelllent for the benefit of creditors; the filing by or
against Tenant of a petition to have Tenant adjudged a bankrupt or
of a petition for reorganization or arra::gement under any law
relating to bAnkruptcy (unless, in the case of a petition filed
against Tenant), the S~"l1e is dismissed within sixty (60) days the
appoin~~ent of & trustee or receiver t~ t~~e possession of
substantially all of Tenant's assets located at the Pr~~ses or of
TenL~t's interest 1n this Lease, where possession is not restored
to Tenant with thirty (30) days I or the attach=ent, execution or
other judicial .ei:'~re of Substantially all of Tenant'. as.ets
located at the pre::lises or of TenAnt'. interest in this Leas.,
where sua sei:ure is not discharged within thirty 1301 daya.
leI Any other action of Tenant re!erred to in this Lea..
as constitutinq & material default or breach by Tenant.
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. lS.2 ~e~ec.:.es: !:1 ~~e e'lent of a:.~. s\.:ch :-::ate=:.al de~au~t
0: ~~each by Tenant, ta~~:o=d ~ay a~ any ti~e the=ea:~e=, with 0:
."':. thou't notice and c.e:nanc., and wi thou't 1i::\:.::.i:1; :'a:lc.lo:d in t~e
exercise of any ::ights or re:::edy at law or in the e~.1ity whicl:l
Landlord may have by reason of such default or breach:
(al To accelerate the whole or any par~ of ~he rent for
the entire ~'expired bala:.ce of the current te~ of this Lease, as
well as all other charges, payments, costs and elC?enses herein
agreed to be paid (or already due and payable) by Tenant, and any
rent or other cha=;es, pay:nent costs and expenses if so accelerated
shall be deemed due a.,d payable as if, by the te~s and provisions
of this Lease, such accelerated rent and other charges, payments,
costs and expenses were on that date payable in advance.
(bl If Tenant shall default in the paj~ent of the rent
herein reserved or in the payment of any other s~~s due hereunder
by Tenant as defined in Paraqraph 16.2 (al of this Lease, Tenant
hereby'authorizes and empowers any Prothonotary or attorney of any
court of records to appear for Tenant in any and all actions which
~y be brought for said rent and said other s~s; and to sign for
Tenant an agreement for entering in any cOlllpetent court an amicable
action or ac~ions for the recovery of said rental and said other
SUo'";!s and in said sui ~s or in said a.~ica.ble ac~i=n or ac~ions to
confess jud~ent against Tenant for all or any part of said rental
and said other suo'";ls, and for interest and cost, together with an
attorney's =c~~ssion for collection of ten (10\) percent. Such
authority shall not be exhausted by one exercise thereof, but
judgment may be confessed as aforesaid from ti~e to tL~ as often
as any of said rental and said other s~~ shall fall due or De in
an'ears, and such pOIolers may be exercised as well after the
expiration of the term or other termination of the Lease.
(c) If 7enant shall default in the payment of the rent
herein reserved or in the payment of any other s~~ due hereu.~der
by Tenant, this Lease may, at the option of the La."l.dlord, be
terminAted ...,.4, in such event, any atterney may i=ediately
thereafter, as attorney for the Tenant, at the sole request of
Landlord, sign an a9re~'";lent for entering in any competent court an
a..~ica.ble action and jud<;llent in ejectment (wit.;out any stay of
execution or appeal) against Tenant and all persons clai.'Ui.ng under
Tenant, for the recovery by Landlord of possession of the Premises
without any liability on the part of the said attorney, for which
this shall be a sufficient warrant, and thereupon a \irlt of
~ossessicn may issue forthwith without a.~y prior proceedinqs
whatsoever. Also, Te~~t hareby releases L&:dlord of all errors
and defects whatever in entering such action or judgment, errors,
or causing such writ of possession to be lss~ed, and hereby agrees
that no writ or error or Objection or exception shall be made or
tuen thereto, and with a copy of this Lease, verified by
affidavit, being filed in such action, it shall not be necessary to
file the original as l warrant of attorney, any law or rule of
court to the contrary notwithstanding. No such determination of
t~is ~e, r~t takln~ or Te~nverinq posl.sslo~ of the Premi.~.,
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s~all ceprive Landlor~ of any ac~ion a;ains~ :e~~: for pcssessic~
a~c for the ren~s, charges, pa~ent, cost, a~: ex-~~ses :e:e:=ed to
in subparagraph lal of the paragraph 16.2.
Idl Landlord shall have a lien on all t:ade fixt~res,
:~rnishings, equip~ent and other personal prcperty of Ten~~t which
are placed in or beccme a part of, the Pre~~ses, as security for
tl':e rents, charges, payments, cost and expe:lSes referred to in
subparagraph lal of t.~is Paragraph 16.2, which lien shall not be in
lieu of or in any way affect the statutory La:.dlord's lien given by
law, but shall be cumulative thereto. Tena:1t herehy gra.cts to
~andlord a secur~ty interest in all sucb personal property above
enumerated for such purposes.
Ie) Re-enter upon the ~remise with or without process of
law and take possession of the same and of all trade fixtures,
furnishings and equipment of Tenant including the right to change
door locks and suspend utilities and serves and expel or remove
Tenant and all other parties occupying the Premises, using such
force as may reasonably be necessary to do without being liable to
Tenant for any loss or damage occasioned therehy. Such personal
property of Tenant may be removed by Landlord fr= the pre..:ti.ses and
stored for the account of and at the expenses and risk of Tenant;
or Landlord may, at its option, and after giving Tenant five (5)
days prior written notice thereof, sell said personal property at
pulllic or private sale for such price and upon such terms as
Landlord may dete...'"'lnine, applying the proceeds of such sale against
the balance owing by Tenant to Landlord under t.,is Lease, inCluding
the expense of such removal and sale.
If) Terminate this Lease, or froe t~e to t~~e, without
terminating this Lease, relet the Premises or any part thereof on
such terms and conditions as Landlord, in its sole discredon,
shall determine with the right to make alterations and repairs to
said Premises; provided, however, that Landlord shall in no way be
responsible or liable for any failure to relet the Premises or any
part thereof or for any fail~e to collect any rent due upon any
such reletting. In the event Landlord relets the Premises frOlll
ti~e to time, the rentals so received shall be applied first to the
payment of UJ.Y obligation other than rent due herel:.:lCe.r UClI Tenant
to Landlord, then to the payment of the cost of such reletting,
including attorneys; fees and broker's c~~~sslon which Landlord
may have paid or incurred in COMection with suc.~ repossessicn and
relettinq, then to the payment of the costs of any alteration or
repair to the Pr~~ses to make them tenanta:le or ac=ept~le to a
new Tenant, then to the payment of rent and othu charges,
payments, coats and expenses referred to in subparaq1:'a;:h I a) of
this Paragraph 16.2 due and unpaid hereunde: and the residue, if
nay, after payment of the foregoing expanses.
(9) 1..andlord shall not by such re-ent.."Y or any other act
be de~~ed to have terminated this Lease or ~~. li~ility of TenAnt
for the total rent reserved hereunder unless La:.d.lcrcl sh.a.ll give to
.en&."lt 'f.'.tten notice of LAndlord' a election to terminate this
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!.ease. . In the event tnat La~clord shall c;i.,e to ':'e:la~: w:.:.~~e:l
no~ice of L~~dlord's election to te~ina~e ~-~s Lease as prc~i~e~
herein, Landlord shall thereupon be entitled ~o reCO'Jer :rcm ':enant
the worth, at the tL~e of such termination, or the excess, i! any,
of the rent and other charges required to be paid by ':er,~~t
hereunder for the balance of the te~ (if this Lease had net been
so terminated) over the then reasonable rental value 0: the
Premises for such period.
(h) No rignt or remedy herein cenferred ~pcn or reser~ed
to Landlord is intended to be exclusive of any other right to
remedy herein or by law provided but each shall be cu:::ulative and
in addition to every other right or r~~edy gi~en herein or n~~ or
hereafter existing at law or in equity or by stature.
16.3 Default by Landlord: Except as other~ise
specifically set forth in this Lease Agreement, Landlord shall not
be in default unless Landlord fails to perfor::l obligations required
of Landlord within a reasonable time, but io. 0.0 event later than
thirty. (30) days after written notice by Tenant to Landlord
specifying wherein Landlord has failed to per!or::l such obligation
is such that more than thirty (30 days are required for
performance, then Landlord shall not be in default if Landlord
cern.~ences performance within such thirty (30) day peried and
thereafter diligently prosecutes the sa=e to c~pletion.
17. MISCELLANEOUS.
17.1 Vacating Pr~~ises: Landlord covenants that if
Tenant shall at any time during the continuance of this t.ease
remove or atte.~pt to remove Tenant's goods or property out of or
from the said Pr~~ises, except in the ordinary course of business,
without first having paid and satisfied Landlord in full for all
rent or other said sums which may become due during the entire term
of this Lease, then and in such case, such r~~oval or atte~t at
removal shall be considered as fraudulent, and the whole rent of
this Lease or any part thereof, at the opticl1of the Landlord,
shall be taken to be thereupon due and payable in arrears, and the
Landlord may proceed to colll!ct or sue or enter a jud;ment for the
whole or said part of moneys due.
17.2 Estoppel Certlficatl!1
ta) Tenant shall at any time upon not less than Un nO)
days proper written notice frCM Landlord execute, acknowledge and
deliver to x..ndlord a statement in writing (1) certifying that this
Lease is ur~fi.d and in full force and effect (or, if modified,
stating the nature of such modification and certifying that this
tease, as so modified, is in full force and effect) and the date to
which the rent and other charges are paid in advcce, if any, anc!
(2) acknowledging that there are not, to Tenant's knowledge, any
uncured defaults on the part of Landlord hereunder, or specifying
such defaults if n&y are cl&ir::ed... MY pu=c:.ut.r cr e."lC"-!-."""~e:: of
the Pre::li sel.
--
--
. (b) ~enan:' s failure to celiver s~ch s:a:e:nent within
such tL~e shall be conclusive uron ~e~ant (11 that t~is Lease is in
full force and effect, without :ncCificati:n except as :nay be
represented by Landlord, (2) that there are no uncured defaults in
Landlord's perfor.nance, 3.nd (:3) that not more t.;a.~ one n:ont.;' s rent
has been paid in advance.
(c) If Landlord desires to finance or refinance said
Premises, or any part thereof, Tenant her~y agrees to deliver to
any lender designated by Landlord such fir.a.~cial state.'::ents of
Tenant as may be reasonably required by such lender. Such
statements shall include the past three (31 years fio.ar.cial
statements of Tenant. All such financial state.'nents shall be
received by Landlord in confidence and shall be used only for the
purposes herein set forth.
17.3 Transfer of Landlord's Interest: In the event of a
sale or coiweyance by Landlord or Landlord's interest in the
Premises other than a transfer for security purposes only, Landlord
shall be relieved from and after the date specific in such notice
of transfer of all obligations and liabilities accruing thereafter
on the part of the La..:1dlord, provided that a.~y funds in the hands
of Landlord at the transfer in which Tenant has an interest, shall
be delivered to the successor of Landlord. This Lease shall not be
affected by any such sale and Tenant agrees to attorn to the
purchaser or assignee provided all Landlord's obligations hereunder
are assumed in writing by the transferee.
17.4 Captions, Attachments and Defined Ter=s:
(a) The captions of the paragraphs of this Lease are for
convenience only and shall be deemed to be relevant in resolving
any questions of interpretation or cocstructio: of any section of
this Lease.
(b) Exhibits attached hereto, and adde.~dum and schedules
initiated by the pa::ties, a::e deemed by atu.cl::::ent to ccnstitute
part of this Lease and are incorporated herein.
(c) The word "Landlord" and "Tenant," as used herein,
shall include the plural as well as the ain;ul.&:. Words used in
neuter gender include the ~sculine and fL~nine and words in the
masculine or feminine gender include the neuter. If there be more
than one Landlord or Tenant, the obligations hereu.'1der 1mp<:lse4 upon
Landlord or TenAnt shall extend individually to their sole and
separate property as well as to their entireties property. The
term "L.a:\<uord" shAll mean only the owner or owners at. the t.1.me in
question of the he title. The obligations contained in this Le..e
to be performed by the t.&ndlord shall be binding on Landlord'.
succesaora and. assiq:.a only during thai%: resilCtcUve pe:iods of
ownership.
"'""
-.
. 17.5 En:ire ~g=eernen~: This i~str~~ent along ~i:h a~y
~x~ibits and attac~~ents hereto cor~~i~u~es t~e en:i=e a;:e~~e~~
between Lanclord and Tenant relative to the i're.":\ises and this
Agreement and the exhibits and attac~~ents may be altered, ~~endec
or revoked only by an instrument in writing si~ed by beth Lc~:..erd
and Tenant. Landlord and Tenant agree hereby that all prior to
contemporaneous oral agreements between and ~~ong th~~selves and
their agents or representatives relative to the Leasing 0: the
Premises are merged in or revoked by this Agreement.
17.6 Severability: If any term or provision 0: this
Lease shall, to any extent, be determined by a cou:t of C~'ll?ete~t
jurisdiction to be invalid or unenforceable, the re.~inder of this
Lease shall not be affected thereby, and each term and provision of
this Lease shall be valid. and be enforceable to the fullest extent
permitted by law.
17.7 Cost of Suit:
(a) If Tenant or Landlord shall bring any action for any
relief against the other, declaratory or otherwise, arising out of
this Lease, including any suit by Landlord for the recovery rent or
possession of the Pre..nises, the losing party shall pay the
successful party's attorney's fees whether or not such action is
prosecuted to judgment.
(b) Should Landlord, without fault on Landlord's part, be
made a part to any litigation instituted by Tenant or by any third
party against Tenant, or by or against any person holding under or
using the Pr~~ses by license of Tenant, or for the foreclosure of
any lien for labor or material furnished to or for Tenant or any
such other person otherwise arising out of or resulting from any
act or transaction of Tenant or of any such other person, Tenant
covenants to save and hold Landlord harmless frem any jud9lllent
rendered against Landlord, the Pre.~ses, the Building or any part
thereof, and all costs and expenses, inclu~g reasonable
attorneys' fees, incurred by Landlord in or in con."1ection with
litigations.
,
17.1 Time, Joint and Several LiabilitYl T~e il of the
essence of thil Lease anJ each and every provision hereat, except
as to the conditions and relating to the delivery of pOlsession of
the Premises to Tenant. All the terms, covenantl and conditions
contained in this Lease to be performed by either party, if such
party shall consist of mere than one person or organi:ation, shall
be d.~ed to be joint and leveral, and all riqhts and r~edi.s o~
the parties Ihall be c'ulNlative and not excll.1S1ve of any other
r~'l\edy at law or in e<;\lity.
17.' Binding Iffect: Choice of LaWl The parties hereto
aque th&t all the provisions hereof are to be consU\le'l1 as both
covenants and conditions as though the vorda iJllpor'tinv luch
covenants and conditions ~n used 1n each ..parae.. pu&vuph
hueI" 1 st\b~.et to any prC'lJlIicl'Il hereof restricting udqr.....nt or
~
~
::ubletting by Te~ant Olnd subject to Section 17.2, all 0: the
provisions hereof shall bind a."ld insu.re t:l the benefit 0: the
parties hereto and their respective heirs, 1e;al representative,
successors and assigns. This Lease shall be governed by the laws
of the Co~onwealth of Pe:msylva."1.ia.
17 .10 Waiver: No covenant, te:7ll or co:-.di ti:ln or the
breach thereof shall be deemed waived; except by written conse~t 0:
the party against whOlll the waiver is clai:ued, and any waiver or
breach of any covenant, term or c:lndition shall not be de~~ed a
waiver of any preceding or succeeding breach of the sa.~e or any
other covenant, term or condition. ~cceptance by Landlord 0: any
performance by Tenant after the time the Sa.:le shall have become due
shall not constitute a waiver by Landlord of the breach or default
of any covenant, term or condition unless other",ise expressly
agreed to by Landlord in writing.
17.11 Surrender of Premise:>: ':'he voluntary or other
surrender of this Lease by Tenant, or a ::lutual cancellation
thereof, shall not work a merger, and shall, at the option of the
Landlord, terminate all or any existing sublease or subtenancies,
or may, at the option of Landlord, operate as an assiqr~~ent to it
if any or all such sub-leases or sub-tenancies.
17.12 Holding Over: If Tenant remair~ in possession of
all or any part of the Premises after the expiration of the term
hereof, land without having exercised any option to Lease) with or
without the express or implied consent of Landlord, such hereof or
an extension for any further term, and in such case, rent and other
monetary SWIIS due hereunder shall be payable in the a.~ount and at
the time specified in this Lease and such ~~~th to month tenancy
shall be subjected to every other te:::1, covenant and agreement
contained herein.
17.13 Interest on Put Cue Obligation: Except as
expressly herein provided, any amount due to LA:1dlord not paid whan
due shall bear interest at twelve (12\) percent per annum frOlll the
due date. Payment of such interest shall not excuse or cure any
default by Tenant under this LeASe.
17.14 Recording: Tenant shall not record this Leas.
without Landlord'. prior written consent, and such recordation
shall, at the option of L&ncUord, constitute a non-curable default
of Tenant hereund.r.
1'7.15 Notices 1 MY notice in this Leue required or
permitted to be given by either party to the other IIlUSt be in
writing and .b&ll be deemed receiv.d wh.n .ent by United Stat..
mail, postage prep&1d aM registered or certified, with nt~
receipt reque.ted, at the addr... s.t forth below or by d.livering
the sue in penon to .uch pany. Fer t:U:;o... of noUc. the
addr..... of the parti.. shall, until ch&:;e4 as hereinafter.
~ .--- ----
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EXHIBI'J:' "),"
>.L:' ':H>''l' C::RTAIN tract :If land, ',lith buildin;s and irnprc'/ernents
thereon, situated in HAMPDEN TCw~SF..r, c~~erland County,
pennsylvania, more particularly bounded and described as follows,
to wit:
SEG:NNING at a point in the Northern line of SL~pson Ferry Road.
said point being located and referenced the following courses and
distances from the center line of Legislative Route No. 21069; (1)
Westwardly a distance of six hundred (600) feet: (2) South fourteen
(14) degrees forty-five (45) minutes East, a distance of seventeen
and fifty-five (17.55) feet; (3) South seventy-nine (79) degrees
forty-five (45) minutes West, a distance of nine hundred fifteen
and fifteen hundredths (915.15) feet to a point; thence North
fourteen (14) degrees forty-five (45) minutes west, a distance of
two hundred forty-eight and three hundredths (2U. 03) feet to a
point; thence along the right-of-way now or late of Pennsylvania
Railroad, North seventy-seven (77) degrees zero (00) minutes
eighteen (18) seconds East, a distance of two hundred ninety-seven
and ninety hundredths (297.90) feet to a point; thence South
fourteen (14) degrees forty-five (45) minutes East, a distance of
three hundred thirty and ninety-two hundredths (330.92) feet to a
point; thence along lands new or late of Southland Corp., South
seventy-nine (19) degrees forty-five (45) minutes West, a distance
of one hundred fifteen and fifteen hundredths (115.15) feet to a
point; thence along the said lands, South fourteen (14) degrees
forty-five (45) minutes East, a distance of one hundred eighty and
fifty-five hundredths (lBO. 5S) feet to a point, the place of
BEGINNING.
COh7AINING 2.092 acres of land in accordance with a survey dated
Auyust lB. 1969. prepared by William B. Whittock, Registered
Professional Engineer, as well as in accordance with a Plan dated
March 30,1977, prepared by Gerrit J. Betz AssociateS. Inc.,
Engineers and surveyors. and being Parcell-B on Resubdivision Plan
for Herbert Benner, which was approved by tli. Ha:t1pden TownShip
c~ssioner. on September 2, 1969.
AAVING thereon erected bdck and block offices and warehouse, sud
premises !:lein; known and numbered u S21S Simpson Ferry Road,
Mechanic.bur;, ,ennaylvan1a.
... --...~
.-
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-
, .
Il':C MOR'tOMI ~VI~ UU-1I2, I :Elf 'l'IIZ CCUM' or CCIIHDII ft.1A. or
P1.1n~~U I CUXlDLAMD CCtlIftY, PDJlmvlUlU
I
II. I
I
1fAJm GICOP, lllc., I
D.fendant I ))13 C:VI~ 1"1
~_ 0' ~!'
AID wo., thl. lit 'ay of APr11, 1"', upon
conaLdc:atLOIl of the 'lai.ndff'. .ttlt.l.OIl tor lppalftt:zaClt ot a
....1YG, INS punuaftt: 1:0 1&1I .~___t 1'-__ 1ft .... ~ in
the pl'ldlllCla of thl pet1a. aNI th.!:' COIUI.')., 11: 1. oaoan ancl
~au u foU,GVlI
:.. fta taunt. ot the prw... In notified that
I' ~ ~IICO XlnafulIlt, IftCl., Ind IlZ'd ~p, Inc., aU
I'pt, 11101ulUtl; a~ put 4111 I'8IIt, Mould be p&14 411'101:11 to
>>--UCO lCf.nA4aen.., lna.
I. ft. panl.. ...u. _" w1'-1Wl fi_ .aya la aft
dfort \0 atn. on a POPIl:ty "MIIU' for tile pm... wo ,,111
have, po....., .a,oy, and..y ...roi.. all r1vht. .nd rIaI41..
of tIl. recelwr of t!lI pnputy.
,. '1'ha ",oputy -MfU w111 be llItharL'. 1M
cU.rea\" ,. n~' .-..- "...-nt, %rIO., tor: ~ p&U
for: 0. pra1a...
.. 'I'M '1'OJlU1:)' HM'Ju "U1 4ftU111- VI\&_
CNlTUt 11I*I'" or th pai... tMt an tal ruponlLbU1C1 of
\be laMl.... In to .. pe14 aM ... to \tWIll' ,.,...,,'t t~ .-1..
1'...1....
I, \'be JlC,Ll<ly IIIMfU will rr.. aOlll..
~1-- ..." "III. .... .,,1.1,..1 .1..... .f th ....-tY.
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. .
PROPERTl MANAGEMENT, INC.
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PE:mS'{::;~;:';
plaint:iff
v.
NO.
RORY SMITH, individually and
trading as SMITH'S AUTO,
Defendant:
CONFESSION OF ~~GMENT FOR MONEY
AND IN E';;;;CTMEN'!'
CONFESSION OF JUDGMENT
Pursuant: t:o t:he aut:hority contained i~ t:he Warrant of
At: torney , the original or a copy of which ~s att:ached to the
Complaint filed in this action, I appear for the Defendant and
confess judgment: in favor of Plaintiff and against Defendant: as
follows:
Amount: Past Due (Rent) $ 11,112.50
Amount Past Due (Lat:e Charges) $ 2,460.00
Amount: Past Due (<:AM) $ 625.00
Amount: Past: Due (Taxes) $ 97.93
Less Credit for .Condo. Deposit ($ 10,210.08)
Attorneys Fees (10\) $ 408.54
TOTAL
$ 4,-193.89
jCL4/~i
Tracy L. McNamara, Esquire
At:orney IO .72669
219 Pine Street
Harrisburg. PA 17101
(717) 236-5000
AttOrney for Defendant
~
I!!"'\
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ADDENDUM
1. I~ SALE O~ 5UILDING IS NOT FINALIZED, SMITH'S AUTO
HAS OPTION TO RENEGOTIATE LEASE.
Z. UPON ENFORCEMENT O~ LEASE SMITH'S AUTO FCCEIVES
RErUND Or DEPOSIT: 58,000.00 AND WTEF:EST \a lO.:iX 0,..
DErUNCT CONDO SALE.
W11~
DATE I ~/1~tej
WlTfE~~
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~RD/Art.TI f)
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DATE:
DATE:
;!.k'
i~/ft:/
EXHIBIT "8"
. ~
-"""
f""tI
TOIBarry Rauhauser
F"rom:Rory Smith
1)1 have managed the building for the last two y.ars and
wa. not paid.
2)1 have the following bills in my name and have taken care
of repairs and maintenance on these items.
Electric meters
Hydrant
Water
Sew.r
Roof
Lot r.pair
Snow r.moval
Building repairs
Plumbing repairs
3)1 have written leases on all current tenant. and have
serviced all curr.nt tenants.
4)1 have run ads for all of the following:
Rental property
Bailer.
Carts
Scallts
~)1 have committed my rent passed any possible rltd.eming
date, th.refore it is nec.ssary to pull som. of the
other tenants rents to keep currltnt with thes. exp.n.lts.
6)1 have no authority to maklt decisions or r.pair. on
anything. (Nothing in writing) But havl! tried to d.al
with all problems that arose.
7)1 have sp.nt countl.ss hours ~l.aning, r.pairing,
and maintaining this building, a. well a. m..ting with
r..l ..tat. and r.nt.l ag.nts, pltrspRctive nltw ten.nt.,
and th.ir attorn.ys.
8)Cost incurr.d for p.ying my .ecretary to do all the
c.lcul.tions for water, s.w.r, hydrant and .l.ctric
p.r l....d .quare fc~t. Doing the ten.nt billing.
coll.cting and paying these accounts.
"e"
EXHIBIT C
. .
"'""'"
I'"'..
S'::-$:(,"u: ^
l. Duties of i::ope::ty Ma:lage:1ent, Inc. ("P!oa:"). ?~! shall
per!or: t.~e followi~g cuties:
2.
renc1ue4
expense:
a. collect and deoosit all ::ents and pay:ents due for
the prope::ty into a c~ecking accou~t established
at P~C 3ank.
b. ^pprove and pay all "operating expenses" for the
Prope~y.
c. Pay any other expenses of the Property as directed
by Plaintiff.
d. Submit complete monthly operatinq financial
state:ents to.Plaintiff. .
e. Arrange for and supe~/ise PM: e~ployees or outs ice
contractors to perf or: requla: ~aintenance work on
the Property.
f. ArrL~ge for and supervise deter:ination of major
repairs and, with Plaintiff's approval, proceed
wit.~ t."!e work.
g. Negotiate and prepare all leases.
h. Arrange for advertising L~d promotion of rentals
as required.
Compensation due P~. As comoensation for services
PHI is to be paid the followinq as a priority operatinq
A. Manaae~.nt Fee. As compensaticn for its continu-
ing :anagement service., PHI shall be paid a man-
agement fee of five percent (5%) of the monthly
gross L~come collected of tr.e Property, payable
each :onth as collected or a :ini:~ of $500.
B. Leasina Commission. The followinq com:issions
shall be deemed earned by PM! upon delivery of an
executed lease by a prospective tenant. The.e
co::issions shall be payable upon receipt from a
tenant of the first month's ::ental. The com:is-
sion schedule is as follows:
l. Five percent (5%) of lease years one
throuqh five.
2. Two and one-half p.rcent (2 l/2\) of the
sixth and any leas. y.ar thereaft.r.
3. "Op.ratll:1q Exp.n..... defined. The followinq shall be
includ.d as operatine; .xpens.s of the Property:
A. PMt Compensation. This shall be considered a
priority op.rating .xpenses and shall be paid from
, -- ........
....
""""
,......
. .
rents collecte~ prior to ?ay:e~t o~ any o~er
operatinq expense or o~.r ex;e~se or to pa~ents
to Plai."\':i~f.
B. All actual maintenance ....o::k (not to inclu~e main-
tenance coordination or sup~/ision) perfo~ed on
the Prope::ty by PM! e:ployees.
C. All costs of outsi~e contractor ....ork per!or:ed on
the Property at cost.
D. All purc.i.ases of e'iUipment and parts for sole use
of the Property at cost.
E. Costs of utilities and se:vices necessary to the
Property.
F. all real estate taxes, insurance pr8llliUlllS, assess-
ments for municipal uprovuents, and qove::nlllental
levies on the Property.
G. All purQase of supplies, matcials, and advertis-
inq and promotion for the Prop8-00ty at cost.
4. ovuer COZlStut. PIiI will first sec:u=e the consent of
Plaintiff before makinq expen~itures in excess of the SUl:l of On.
Thousand and 00/100 Dollars ($1,000) in connection with the costs
of outside contractor ....ork, purChase of supplies and materials,
and the purchas. of equipm.nt and parts.
5. ..ntal Collection and Payments. PM! shall collect all
rent. and payment. ~ue under the leas.s and shall pay all operat-
inc; expense. and other expenses of the Property; provi~ed.,
how.ver, that in the ....ent rental collections are not suffici.nt
to pay all such expenses, PIiI shall promptly notify Plaintiff and
detail for Plaintiff t.i.e amount of suchshor""..&qe and the vendors
or other persons who c:&nnot be paid by reason thereof. PIiI shall
have no responsibility to fund such operatinq deficit in any way.
all vendors and other c:'editora of the Proper:y shall bill
Plaintiff, in care of PMI at such a~dress as PM! shall desiqnate.
ci1l~:,-CONTRACTOR
.. 118.N. 27th ST, -.
CMtP HILL. PA 170'"
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DESCRIPTION
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PA YIIEN1' DUE UPON RECEI'1'
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EXHIBIT "E"
EXHIBIT E
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_001"'''110.
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AMOUNT
I
1
<aL.1 cy,." .
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.
.,
..
';"4
~~
.
,.
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IULlIlll PUIOD
Sep-30 TO Oct-3l ( ~y.)
Billing data 10-3l-9~
Naxt r.ading on/about Noy-30
IlETIIl IHFCIIUIA TlOll
Mat.r nu.b.r Mat.r .iz.
IlaTU RIAIIIN8 IIlFCllUlATlOH
~~*~
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AMOUNT OF LAST IILL
~
You p.id (Thank You)
Prior balanc.
CURRENT WATU CHARGIS
Cla... Priyat.-hydrant
0THIIt QWlGlS
Stat. Tax Surcharg.
TOTAL CURRENT CHARSES
Your prior balonc. was
TOTAL AMOUNT DUE
/
tlZ7.50
'. tlZ1.50-
..00
t63.99
..Z4-
.63.15
..00
.63.75
PII...LVAIIlA . AIIIIllCAN IlATa CQlllAII't
8SZ WESLEY DRIVE
IlECHANICSIUll9, PA. 17055
IudMu Te18llhallel 1-800-717-7292
, _~>> T~_"I 717-774-24Z1
Servic. to. lIAlD &ROUP INC
5215 E SIMPSON FERIV ID
Acc.unt nu.bar, "1-11951756-05
MaSIA811 TO YOU FROM PENNSYLVANIA - AMERICAN
!
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11.
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Mnrs AUTO 800Y _
.".,,. ICN_IID
\lICIUUICIIlI'lG. "'" 1_
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~AIWfi<XXJNIY
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':0 11l0qqa. 5.:
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6350
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IUUNQ P!IlIOD
Nov-13 .'0 D.c-12 ( 29 d.y.)
li11ing d.t. 12-18-95
N.xt r.ading on/.bout J.n-ll
AMOUNT OF LAST BILL
c
U 06 . 36
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5303 1
KITIR alAI I" INFORMATION
Pr.sent-Actual 610900
Lest 574800
CURRENT VAT!Il CHARGES
Cl.... Co.....ci.l
SERVICE CHARGE
16000 g.l X .003932
20100 g.l X .002549
36100 gal
'21.93
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U36.07
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TOTAL CURRENT CHARGES
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TOTAL AMOUNT DUE
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U37.17
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PUllSYLVAIIIA - AIIIRICAJl UTa COMPANY
852 WESLEY DRIVE
MECHAMICSIURG, PA. 17055
lusiMa T.~": 717-795-9801
- F,.1ll1 T.1.,..I.o...: 717-774-2420
Servic. tOI WARD GROUP lHe
Av....... ...ter u.ed fo.. this 5215 E 5I""SON FERRY RD
pe..iod was 1245 g.llon. . doy. Account nu.b.... 660-11431210-06
MlSSAGES TO YOU FROM PlHNSYLVANIA - AMERICAN
NEW OFFICE HOUIS. As of 11/20/95 PAWC ha. chang.d its offic. hour. to
bett... ....v. YOU. Tho new hour. .... 7.45 .... to 7.00 p... and S.tu..d.y
9.15 .... to 5.30 P...
To P..ot.ct you.. inaido w.t... ..t... and pipes froe f....zing du..ing cold
....tho.. eonth., you should.
- SEAL doo.... vents and crawl ...c.. wh....v.r cold .i.. ..y .nt."1
- PIOTECT tho ..t... with. fo.. bex filled with crueolod new.........
- DIAIN ...t... line. t. outside f.uc.t..
- WRAP in.ul.ting ..t...i.l ar.und pipe. in unhe.ted ...... .f your hoeol
- IMOW who... y.ur ind.... ..t... shut"off v.lue i. l.c.ted in tho .vent
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,
NW
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OCT-30-9~ WED 02:23 PM SMITHS AUTO
-..
DAVID L. HOCKER & SON
COlflll~& ~~lAlmMltk:tmw.
5218 Eton PllloII .
Meoh.nlcaburg, ~A f TOe5
117 -lIG1.alG5 or 717-697 .2V23
Plow lot
~ at MIIIIdd.... (2llln)
BllI To:
Smith'. Auto
5215 ~ Filly ROIId
~,PA 17066
Alk Rory 8mfth
~8PM8OH' P,O,NUM8ER.~ .DATI!
D4
12.20-85
7176976938.._._._.
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INVOIce NO: 1llOU'
DATI!: OtcIntber 28, 1995
Job location:
IPPED. 'aHlPPEOVlA . ~ F.O.B"POINT _...:.!~MS
· See below
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_. &.,--- ---.- ... -
.UNIT~lCE ._~!.~
. I S19500
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lIRM&: "DAYS FROM ~ DATE.
MASTER CAAO & VISA ~'H)
A NWtCl ~ Of' ONI! AND ONI! tWJI liMl' AICllJJf .., ...... C#-~ ....nr QIJ ''''' _
........Illf.l1..ntt II .....'1 "'~1 tn........"lIlI"tMTYf1OtOlY....
.. .... ..... '...... II ..,. II u .ltUf.
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aJlIBIT R
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DAVID L. HOCKER & SON
C~I:II. R_MhnIMIL..." M~fNm.
5210 Elan PIKe
Med..mc.buIg, PA 110M
117.0ll7.0ll55 01' 717 .eG1.2923
HI f' ",', I .J!.i . ! I' :
INVOICe NO; 8IOOU
DATE: J..nu.ry 20, fl"
8lII To:
SmlIh', AIllO
5216 SImpson Filly Road
MecIIInlcMlurg, PA 17055
AIIn: Rocy Smllll
Job LoclIIIon:
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a....IOVlAj_!":9Jt~ -f' ~..R~a..
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01.18-110
OfacRIPTION
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$111'000
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SIJ8101At
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TOTAL DUE
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'f1ltMS: to DAYI FROIIIIN\'OICE DATI.
A ANf.HCli CIW10ll or ONR ANDONR-MAIJ' (t-. fl8CaNT ... ....I~ '...l RATE Of Ift)_
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OCT-~0-96 WED 02:26 PH 9HITH9 AUTO
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DAVID L. HOCKER & SON
c_~. RtltlJdMtItIIL-.MMnttII-.
11218 Elon Place
Mechan~bufll. P^ 17055
717 6V7 0Il55 Of 717-007.2923
II ~ r ,.:, 111.. '.I! i:
INVOIC!! NO: .'0032
OATE; January 26. 111116
8lII To;
SmIIh'. AIAo
11215 SimpIon Fetty RllIId
Mldlanlcsbutll. PA 17065
Aan: Roly Smllll
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TERMS I
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0umflInD Fee . 10 ItMld5I11 $15 ~
~"'T ~ ~CXI"T
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lie....... _leU IlIlt.".-ca'" r -1'lf1T1U. ..... _..... tt."y ,.. DAYS__
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tlWlK YOU"", TOUR III I.'"
..._......._--~ -----..-
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DAVID L. HOCKER & SON
C~IiII" RH/r1entiiti L4tm ..1lItICe
5216 Etan Place
Mechlnlcsburg, PA 17055
717-697-0055 or 717-897-2923
f".
. .
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,,.VOICE NO, ll6Cl05S
DATE; Febrvary..,1896
BI8To:
SrnIUI'sAutD
5215 SimllSOl'l Ferry Road
Mec:IMInic:sburg, PA 17055
AlIlt Rory Smllh
Job lOcdOn:
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,..... DATE OE8CRJPTION UNIT PRICE ~Ut;T
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02-03-116 PIowllllrkinglol 6,,1-1(' ! . t~ \iC
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PROPERTY MANAGEMENT, INC.,
PlAINTIFF
V.
RORY SMITH, IndMdually and
trading as SMITH'S AUTO,
DEFENDANT
: IN THE COURT OF COMMON PLEAS OF
: CUMBERLAND COUNTY, PENNSYLVANIA
: CIVIL ACTlON.LAW
.
: 96-5445 CIVIL TERM
~OFFER. J. A~I) BAYLEY. J.
~
AND NOW, this 21st day of March, 1997, the petition of defendant to strike or
open the judgment entered against him on October 3, 1996, IS DISMISSED.
B~ the CoUo//
( ,. I
Stephen C. Nudel, Esquire
For PlaIntiff
- c..r-- ~J.. 3bJ/f'l.
~~
MIchelle R. Calvert, Esquire
For Defendant
:ua
PROPERTY MANAGEMENT, INC.
Plaintiff
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PENNSYLVANIA
v.
NO. 96-5445 CIVIL
RORY SMITH, individually and
trading as SMITH'S AUTO,
Defendant
CONFESSION OF JUDGMENT FOR MONEY
AND IN EJECTMENT
RESPONSE TO DEFENDANT'S PETITION
TO STRIKE OFF OR OPEN CONFESSED JUDGMENT
AND NOW, comes Plaintiff, Property Management, Inc., by and
through its attorneys, the Law Offices of Stephen C. Nude I , and
respectfully responds to Defendant's Petition To Strike Off Or
Open Confessed Judgment as follows:
I PETITION TO STRIKE OFF JUDGMENT
1. Admitted.
2, Admitted.
J. Denied. It is apparent on the face of Plaintiff's
Complaint that judgment was not entered against a natural person
in connection with a residential Lease. The Defendant is Rory
Smith, i/t/a Smith's Auto. Paragraph 5 of Plaintiff's Complaint
sets forth that Defendant entered into a Lease Agreement for
"6,250 square feet of office and warehouse space", By way of
further response, the Lease Agreement, incorporated into
plaintiff's Complaint as "Exhibit S", clearly identifies the
Lea.. Premis.. a. offic. and warehouse space.
.. Denied. p.A.R.C.p 2952(a) (7) requires "an itemized
computation of the amount then due
" plaintiff sets forth an
itemized computation in paragraph 21 of Plaintiff's Complaint.
5. Denied. Paragraph 5 contains a conclusion of law to
which no responsive pleading is required. By way of further
response, the judgment is proper and valid.
WHEREFORE, Plaintiff, Property Management, Inc.,
respectfully requests your Honorable Court to deny Defendant's
petition To Strike Off the Judgment by Confession, to affirm the
Judgment entered against Defendant and to permit Plaintiff to
pursue its legal remedies against Defendant. including
enforcement of the Judgment.
II PETITION TO OPEN .JUDGMENT
6. The averments in Plaintiff's Complaint and Plaintiff's
responses to paragraphs 1 through 5 of Defendant's Petition are
incorporated herein by reference as if set forth at length.
A. ABSENCE OF AUTHORITY TO CONFESS JUDGMENT
IN AMOUNT CLAIMED
7. Admitted.
8. Admitted.
9. Admitted in part and denied in part. Pursuant to the
teIiDS of the Lease, tnonthly rental payments are due "in advance
on the first 11st) day of each calendar month." The grace period
applies only to accrual of late charge..
10. paragraph 10 contains a conclusion of law to which no
respondve pleading 18 required. By way of further response.
under the terms of the Lease, October, 1996, rent was due October
1. 1996.
B. ABSENCE OF WARRANT OF ATTORNEY
TO CONFESS JUDGMENT
11. Denied. The Addendum to the Lease speaks for itself.
12. Denied. The Addendum to the Lease speaks for itself.
13. Denied. After reasonable investigation. Plaintiff is
without knowledge or information sufficient to form a belief as
to the truth or falsity of the averment contained in paragraph
13. To the extent relevant, proof thereof is demanded.
14. Denied. After reasonable investigation, Plaintiff is
without knowledge or information sufficient to form a belief as
to the truth or falsity of the averment contained in paragraph
14. To the extent relevant, proof thereof is demanded. By way
of further response. Defendant's "Exhibit C" does not nullify or
terminate Lease provisions. The document purportedly provides
interim management responsibilities which were ultimately
abrogated by the April 1. 1996, Order of Court.
15. Denied. Paragraph 15 contains a conclusion of law to
which no responsive pleading is required.
C. ABSENCE OF DEFAULT - LIMITATION
BY CONTEMPORANEOUS WRITTEN AGREEMENT
16. Denied. After reasonable investigation, Plaintiff is
without knowledge or information sufficient to form a belief as
to the truth or falsity of the averment contained in paragraph
16. To the extent relevant, proof thereof is demanded. By way
of further response, to the extent the Agreement is valid and
relevant, it terminated when the mortgage holder initiated
foreclosure proceedings and assumed control of the premises on
April 1. 1996.
17. Denied. After reasonable investigation, Plaintiff is
without knowledge or information sufficient to form a belief as
to the truth or falsity of the averment contained in paragraph
17. To the extent relevant, proof thereof is demanded. By way
of further response. to the extent the Agreement is valid and
relevant, it speaks for itself.
18. Denied. With reference to the period of July 1, 1994.
to March 31, 1996, Plaintiff is without knowledge or information
sufficient to form a belief as to the truth or falsity of the
averment contained in paragraph 18. To the extent relevant,
proof thereof is demanded. By way of further response, it is
specifically denied that any compensation is due Defendant for
the period of April 1. 1996, and thereafter. as Defendant had no
authority to manage the Premises after April 1, 1996.
19. Denied. After reasonable investigation, Plaintiff is
without knowledge or information sufficient to form a belief as
to the truth or falsity of the averment contained in paragraph
19. To the extent relevant, proof thereof is demanded.
20. Denied. Paragraph 20 contains a conclusion of law to
which no responsive pleading is required. By way of further
response, it is denied that there is any set off.
D. ABSENCE OF DEFAULT - OUTSIDE STORAGE
21. Admitted.
22. Denied. After reasonable investigation, Plaintiff is
without knowledge or information sufficient to form a belief as
to the truth or falsity of the averment contained in paragraph
22. To the extent relevant, proof is demanded.
23. Denied. After reasonable investigation, Plaintiff is
without knowledge or information sufficient to form a belief as
to the truth or falsity of the averment contained in paragraph
23. To the extent relevant, proof is demanded.
24. Denied. Plaintiff has observed on several occasions
that, in violation of the Lease, Defendant stores ar.d has stored
numerous auto parts and vehicles on the premises on a continuing
basis.
E. BREACH OF CONTRACT BY LANDLORD AND PLAINTIFF
25. Denied. The Lease speaks for itself.
26. Denied. The Order speaks for itself.
27. Denied. Paragraph 27 contains a conclusion of law to
which no responsive pleading is required. By way of further
response, with reference to the Ward Group, Plaintiff is without
knowledge or information sufficient to form a belief as to the
truth or falsity of the averment contained in paragraph 27. To
the extent relevant, proof thereof is demanded. By way of
further response. plaintiff has performed all obligations under
the Lease and the May 28. 1996, Order of Court.
28. Denied. Paragraph 28 contains a conclusion of law to
which no responsive pleading is required. By way of further
response, Plaintiff is without knowledge or information
sufficient to form a belief as to the truth or falsity of the
averment regarding the alleged breach by the Ward Group. By way
of further response. there has been no breach by Plaintiff.
29. Denied. Paragraph 29 contains a conclusion of law to
which no responsive pleading is required.
WHEREFORE, Plaintiff, Property Management. Inc. respectfully
requests your Honorable Court to deny Defendant's Petition To
Open Judgment By Confession, to affirm the Judgment entered
against Defendant and to permit Plaintiff to pursue its remedies
against Defendant, including enforcement of the Judgment.
III. DEFENDANT'S COUNTER-CLAIM AGAINST
PLAINTI FF. PROPERTY MANAGEMENT. INC.
30. The averments set forth in Plaintiff's Complaint and
the responses to paragraphs 1 through 29 of Defendant's Petition
are incorporated herein by reference as if set forth at length.
31. Denied. After reasonable investigation. Plaintiff is
without knowledge or information sufficient to form a belief as
to the truth or falsity of the averment contained in paragraph
31. By way of further response. to the extent there was an
agreement between Defendant and the Ward Group, it terminated
when the Ward Group's mortgagee assumed control of the Premises
on April 1, 1996.
32. Denied. After reasonable investigation, Plaintiff is
without knowledge or information sufficient to form a belief as
to the truth or falsity of the averment contained in paragraph
32. To the extent relevant, proof thereof is demanded.
33. Denied. After reasonable investigation, Plaintiff is
without knowledge or information sufficient to form a belief as
to the truth or falsity of the averment contained in paragraph
33. By way of further response, to the extent Defendant paid for
the services, it was prior to Plaintiff assuming management of
the property and is not relevant to Plaintiff's claim against
Defendant.
34. Denied. After reasonable investigation, Plaintiff is
without knowledge or information sufficient to form a belief as
to the truth or falsity of the averment contained in paragraph
34. By way of further response, to the extent Defendant would be
entitled to any compensation, it would be prior to April 1, 1996.
Defendant's management duties, if any, ceased as of April 1,
1996. Judgment was confessed only for debt owed subsequent to
April 1, 1996, as more fully set forth in Plaintiff's Complaint
for Confession of Judgment.
35. Denied. The Lease speaks for itself.
36. Denied. After reasonable investigation, Plaintiff is
without knowledge or information sufficient to form a belief as
to the truth or falsity of the averment contained in paragraph
36. By way of further response, Defendant would not be entitled
to any compensation subsequent to April 1, 1996.
37. Denied. The Addendum speaks for itself. By way of
further response, Defendant was given credit for the deposit plus
interest.
38. Denied. After reasonable investigation, Plaintiff is
without knowledge or information sufficient to form a belief as
to the truth or falsity of the averment contained in paragraph
38. To the extent relevant, proof thereof is demanded.
39. Denied. Paragraph 39 contains a conclusion of law to
which no responsive pleading is required. By way of further
response. Plaintiff has performed all obligations under the Lease
and the May 28, 1996, Order of Court.
40. Denied. After reasonable investigation. Plaintiff is
without knowledge or information sufficient to form a belief as
to the truth or falsity of the averment contained in paragraph
40. To the extent relevant. proof thereof is demanded. By way
of further response. it is specifically denied that Plaintiff is
liable to Defendant.
WHBRBFORE. Plaintiff, Property Management. Inc.,
respectfully requests your Honorable Court to dismiss Defendant's
Q
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(2) Notice is not required under Rule 2956.1(C) because a
pecition to open or strike the judgment was previously tiled.
Date: ~fdCP fen
LAW OFPIOB~~~L
Stephen C. Nudel, Esquire
Attorney 10 #41703
Tracy L. McNamara. Esquire
Attorney 10 #72669
219 pine Street
Harrisburg, PA 17101
(717) 236-5000
Attorneys for Plainciff
(2) Notice is not required under Rule 2956.1(c) because a
petition to open or strike the judgment was previously filed.
Date: ~fdVlcn
LAW OFFICES OF STEPH N C. NUDEL
,"A
Stephen C. Nudel, Esquire
Attorney ID #41703
Tracy L. McNamara, Esquire
Attorney ID #72669
219 Pine Street
Harrisburg, PA 17101
(717) 236-5000
Attorneys for plaintiff
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PROPERTY MANAGEMENT, INC.
Plaintiff
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PENNSYLVANIA
v.
NO. 96-5445 Civil
RORY SMITH, individually and
trading as SMITH'S AUTO,
Defendant
CONFESSION OF JUDGMENT FOR MONEY
AND IN EJECTMENT
PRAECIPE TO SATISFY JUDGMENT
TO THE PROTHONOTARY:
Kindly satisfy the Judgment entered in the above-captioned
matter.
Date: 4{q jq,
LAW OFFICES OF STEPHEN C. NUDEL
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Stephen C. Nudel, Esquire
Attorney ID #41703
Tracy L. McNamara, Esquire
Attorney ID #72669
219 Pine Street
Harrisburg, PA 17101
(717) 236-5000
Attorneys for Plaintiff
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WRIT OF EXECUTION and/or ATTACHMENT
COMMONWEAlTH OF PENNSYLVANIA)
COUNTY OF CUMBERLAND)
TO THE SHERIFF OF CllmOOrland
To satlsly the deb!. Interest and costs due
NO. 96-5445 CIVIL ~
CIVIL ACTION - LAW
COUNTY:
Prrvrt-y ~n"<;p"",nt", Tn".
PlAINTIFF(S)
lrom
!lory Smith, individually and trading as Smith's Auto
5215 Sirrpson Ferry Road, SUite 107
Mechanicsburg, PA 17055
(1) You are directed to levy upon the property 01 the delendant(s) and 10 seU
All p",...,."",1 prrvrt-y ;ndncHnq. but not limited to inventory. furniture. fixtures
10M "<;";pIPnt 1"",,,t-Prl <'It 5215 S~ Ferry Road. SUite 107. Mechanicsburq. PA 17055
DEFENDANT(S)
(2) You are also directed to attach the property 01 the delendanl(s) not levied upon in the possession 01
GARNISHEE(S) as IoIIows:
and to Rolly the gamishee(s) that: (a) an attachment has been issued; (b) the garnishee(S) &'are tfP1ed hom payilg any
deb! to or lor the account 01 the delendant(s) and from delivering any property 01 the defendant(s) or oltlerwise disposing
thereof;
(3) tt propertyolthedelendant(s) not levied upon an subject to attachment is Iound intheposstssion 01 anyone other
thana named garnishee, you are dirededto ROlly hirrVherthat helshe has been added as a garnishee and Is enjolnedas above
stated
Amount Due $4.493.89
Ifllerest frail date of Jud<lment 10/3/96
Atty's Convn %
Ally Paid $41. 00
PlalOlilt Paid
L.L. S .0;0
Due Prothy $1. 00
Othef Costs
Date
Im'c:h 26, 1997
t.Mlll"Pf'Il"'IlIl Ea ~lbr
PMI...IllbIy, CM1 DMIot
by
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REQUeSTING PARTY:
Name. Tracy 1... I'lctWI&ra
M<nss lAW Of'f'tOS Of' S't"fl'Hm C t<<..ltlEL
if9Prne St. -
A .6J'rrisoorg, P>\ 17101 ---
f Itomty I~-rty "'~1-;lnc-:-"._~-"-
.Il!ph)ne .4-Jl'~-41' \000..-.------......___
Supreme Cour1lDNo _J?f~?
R. Thomas Kline, Sheriff who being duly sworn according to law.
says this writ is returned ABANDONDED.
Sheriff's Costs:
Docketing
Law Library
Prothonotary
Surcharge
Levy
Poundage
Mileage
$
18.00
.50
1.00
4.00
20.00
.87
6.32
50.69
Advance costs 150.00
Sheriff's Costs 50.69
$99.31
refund to atty 10-7-97
So answers:
i~~~-~~~
R. Thomas Kline,Sher~~
Sworn and Subscribed To Before Me
By4-t~~_ dkLt"
Deputy Sheriff
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CViJ
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This
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Day of ()~
1997. A.D. l 1__. (J 'ht.JI. _ ~.
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Prothonotary
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