HomeMy WebLinkAbout07-0991
John W. Purcell, Jr.
I.D. 29955
Purcell, Krug & Haller
1719 North Front Street
Harrisburg, PA 17102
(717) 234-4178
jpurcell@Xkh.com
KSB ENTERPRISES, INC. T/A : IN THE COURT OF COMMON PLEAS
UNDERNEATH IT ALL, : CUMBERLAND COUNTY, PENNSYLVANIA
Plaintiff
VS.
STATE COLLEGE PREMIER RENTALS, : NO. 7 Gt ?? fe rti
L.P.,
Defendant : CIVIL ACTION - LAW
DECLARATORY JUDGMENT
NOTICE
You have been sued in court. If you wish to defend against the claims set forth in the following pages, you must
take action within twenty (20) days after this complaint and notice have been served. To defend against the
aforementioned claims, a written appearance stating your defenses and objections must be entered and filed in writing by
you, the defendant, or by an attorney. You are warned that if you fail to take action against these claims, the court may
proceed without you and a judgement for any money claimed in the complaint or for any other claim required by the
plaintiff may be entered against you by the court without further notice. You may lose money, property or other rights
important to you.
YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT
HAVE A LAWYER OR CANNOT AFFORD ONE, GO TO OR TELEPHONE THE OFFICE SET
FORTH BELOW TO FIND OUT WHERE YOU CAN GET LEGAL HELP.
Cumberland County Bar Association
32 S. Bedford Street
Carlisle, PA. 17013 -- (717) 249-3166 (800) 990-9108
NOTICIA
Le han demandado a usted en la corte. Si usted quiere defenderse de estas damandas expuastas en las paginas
siguientes, usted tiene viente (20) dias de plazo al partir de la fecha de la demanda y la notificacion. Usted debe presentar
una apariencia escrita o en persona o por abogado y archivar en la corte en forma escrita sus defensas o sus objeciones alas
demandas en contra de su persona. Sea avisado que si usted no se defiende, la corte tomara medidas y pue& entrar una
orden contra usted sin previo aviso o notificacion y por cualquier queja o alivio que es pedido en la peticion de demanda.
Usted puede perder dinero o sus propiedades o otros derechos importantes para usted.
LLEVE ESTA DEMANDA A UN ABODAGO IMMEDIATAMENTE. SI NO TIENNE
ABOGAD O SI NO TIENE EL DINERO SUFICIENTE DE PAGAR TAL SERVICIO, VAYA EN
PERSONA O LLAME POR TELEFONE A LA OFICINA CUYA DIRECCION SE ENCUENTRA
ESCRIDA ABAJO PARA AVERIGUAR DONDE SE PUEDE CONSEGUIR ASSISTENCIA
LEGAL:
Cumberland County Bar Association
32 S. Bedford Street
Carlisle, PA. 17013 -- (717) 249-3166 (800) 990-9108
KSB ENTERPRISES, INC. T/A : IN THE COURT OF COMMON PLEAS
UNDERNEATH IT ALL, : CUMBERLAND COUNTY, PENNSYLVANIA
Plaintiff
VS.
STATE COLLEGE PREMIER RENTALS, : NO. q q C);, I
L.P.,
Defendant : CIVIL ACTION - LAW
DECLARATORY JUDGMENT
COMPLAINT FOR DECLARATORY JUDGMENT
1. The Plaintiff is a corporation duly organized and existing under the laws of the
Commonwealth of Pennsylvania trading under the registered factious name of Underneath It all
with an address of 632 Devon Road, Camp Hill, Cumberland County, Pennsylvania 17011.
2. The Defendant is a limited partnership organized and existing under the laws of the
Commonwealth of Pennsylvania with an address of P.O. Box 409, State College, Pennsylvania
16801, with a street address of 127 Sowers Street, State College, Centre County PA 16804.
3. On or about August 1, 2005, Plaintiff and Defendant entered into a Lease for the rental
of commercial premises located at the Hoover Plaza at 829 State Street, Lemoyne, Cumberland
County, Pennsylvania. A copy of the lease is attached hereto as Exhibit "A".
4. Pursuant to the Lease, Plaintiff leased 1323 square feet of space in a commercial
shopping center, then known as Hoovers Plaza, since renamed, which Plaintiff was limited to
using for the purpose of selling retail items (clothing and accessories) only. (See ¶ 3 of the lease)
5. At the time of the execution of the Lease, all or most of the other commercial
properties located in the shopping center were leased to other businesses, as restaurants and other
retail establishments requiring a flow of customers..
6. Sometime after the execution of the Lease, Defendant commenced major exterior
renovations to the property which discouraged other businesses from renting space, and
discouraged foot traffic from entering the shopping center..
7. Plaintiff believes and therefore avers that Defendant has conducted the management of
the overall property in such a way as to drive out or discourage other businesses from renting
within the shopping center, thereby diminishing customer traffic to the Plaintiff's premises.
8. Foot and vehicle traffic is an essential component of the Plaintiff's business, and
Plaintiff relies on such traffic to bring in a substantial portion of its revenue.
9. By failing to ensure sufficient rentals withing the shopping center, and by failing to
manage the property in such a way as to ensure customer traffic, Defendant has seriously
undermined the Plaintiffs source of revenue.
10. Since August 1, 2005, most of the businesses in the shopping center have either left
or gone out of business, due to the actions or omissions of the Defendant.
11. Plaintiff's business has decreased by approximately 50 percent, making it impossible
for it to meet its obligations under the Lease.
12. Implicit in the lease arrangement between the parties, Defendant has an obligation to
ensure that it does not obstruct or hinder a tenant's ability to do business or generate income.
13. Subsequent to the execution of the Lease, when the Plaintiff complained about the
loss of business, Defendant agreed that it would make all efforts to increase traffic flow through
the shopping center, by filling up vacant tenancies in the shopping center.
14. Despite such subsequent promises, vacancy in the shopping center has continued
to decrease, to the point where the shopping center is only approximately 10 to 15 percent
occupied.
15. Defendant's actions or omissions makes the Plaintiff's performance impossible
and/or impracticable, thereby voiding the Lease Agreement between the parties.
16. Plaintiffs business has been at this location for more than 20 years, and was able to
generate sufficient revenue to maintain its existence prior to the acquisition of ownership and
subsequent management by the Defendant.
17. The provisions of the Lease Agreement are unconscionable in that the Lease provides
numerous remedies to the Landlord, while providing no remedies to the Tenant.
18. The Lease contained a Confession of Judgment clause enabling the Defendant to
enter Judgment by Confession.
WHEREFORE, Plaintiff requests this Honorable Court to enter an Order:
A. Declaring the Lease between the parties null and void; and
B. Enjoining the Defendant from any attempt to enforce any of the provisions of the
Agreement; and
C. Directing such other and further relief as may be appropriate.
Respectfully submitted,
KRUG &
BY
Jo . Purcell, Jr.
.D. 9955
Varr Nor th Front Street
sburg, PA 17102
(717) 234-4178
EXHIBIT "A"
LEA.
r?.
DATE: August 1, 2005
a' address of
"LANDLORD": STATE COLLEGE PREMIER RENTALS, 1--P-, with
Pennsylva to 16804-040
"LA
PO Box 409, State College
`y 1?? P
?• with an address of
"TENANT": Underneath It All c/o ??• t D ?)
a
Store/Office # N consisting of 1,323 square feet in the Shopping Center
"pRE-M1SES": ne, Pennsylvania, located at g29 State
known as Hoover's Plaza n Lx]7043 (the -Shopping Centex")
vanja Street, Lemoyne, Pemsy ove NOW, THEREFORE, for and in consideration othern a?? as follant., :et fca{h herein,
and intending to be legally bound, Landlord andTcnnn hereby 1. LEASE OF PREMISES; PARKING LOT: Landlord does hereby demise and
lease to Tenant, and Tenant does hereby lease and take from Landlord, the Premises. Tenant, its
employees, agents and invitees are also granted tl an,XCIUSr a ri employeesght, Mzruno andtinvitees,
Landlord and the outer tenants at the Shopping Center
eration to use the parking lot at the Shopping Center in cor s? wtith normal ? omodify the 1 arktng lot
busines4. Notwithstanding the foregoing. Landlord
from time to time as may be deemed desirable by Landlord.
2. TERM : The term of the Lease (the "Term") shall be five (5) years, conurcncing
on November 1, 2005 (the "Con1TAGncernoit Date") and expiring without further as or notice on Year er to
October 31,2010 (the "Termination Date"). As ncd nherennte t any annual anniveshall re ereof.
a period of one year commencing an the Comm
Tenant shall have the option (the "Renewal Option") to extend the Term two
times for an additional five (5) years each (the "Renewal Term"). commencing on the day
immediately following the Termination Dale. Tenant not shall ss exerciie than s x (6} months ppior to the
providing written notice of such exercise to Landlord
Termination Date.
3. USE: The Premises shall be used by Tenant solely as a retail items (clothing &ses the or any establishment and or for no other suff^r the use.
to occupied or lsedtfor ai yypurposes otlur than
or arty part thereof, nor peimt
herein limited, tt,or for any purpose deemed unlawful, disreputable, lwardous or a nuisance.
4. RENT : The Tenant covenants and agrees to pay to Landlord annual b3-;e rent
("Base Rent") in the following amounts:
NJ-7111 :1V:,AG
A.
$1,047.00 per month;
b.
$1,068.00 per month;
during the first Lra?e Year. $12,569, payablc in monthly installments of
during the second Luse year. 512 920. Payable in monthly installments of
during the third Lease Year. $13,077, payable in monthly in..sWiments of
c.
$1,090.00 per month;
d.
$1,112.00 per month;
e.
during the fourth Lease Year. $13,339, payable in monthly installments of
during the fifth Lease Year, $13,606, payable in monthly installraetus of
red' Shall
$1.134.00 per month. Renewal Terrn, Base Rent during each Lease Year T ? e nRenl applica is during the
be equal to One Hundred Two percent
immediately preceding Lease Year.
In addition to the Base Rent. Tenant shall pay landlord as "Additional Rent" all
. costs. fear., other paymcnt4, impositions,arge-i to diord under hL, reimbursements Lease, whether specifically stated
Lan
shall become due and payable by Tenant
flrst day specifically provided herein to the
calendar monk of the Term- ?' any
to be treated as Additional shall be Rent or
Additional Rent due paid on
5. RENT; NVHEN DUE; WI-]ERE PADS: All Base Rent and Additional Rent
payable by Tenant to Landlord under this Lease shall be deemed to be rent and shall be payable
and recoverable as rent in the manner herein provided, and Landlord shall have all rights set forth
herein against Tenant for default in any such payment. Base Rent shall be paid to Landlord in
advance, on the first day of each calendar month, during, the entire Term, without deduction or
set-off, in legal tender of the United States of America, at the address of Landlord as ,at forth
above, or to such other person of entity or to such other address as landlord may desigrutte in
writing. Tenant's obligation to pay all rent due under this Lease shall survive the expiration or
earlier termination of this Lease.
6. LATE PAYMENT CHARGE; INTEREST RATE ON DELINQUENCIES: If
Tenant shall fail to pay any rent within five (5) clays of when the same shall be due, Tenant shall
pay to Landlord a late payment charge of $50.00 for each occurrence, as Additional Rent,
intended to partially compensate Landlord for its administrative costs. Tenant acknowledges that
such late fee is a reasonable estimate of such costs and does not constitute a penalty. In addition,
any amounts not paid when due shall bear interest at the greater of one and one half percent
(1.5%) per month and the maximum interest rate legally permitted, front the date such payment
was due until paid. Li no event shall the interest rate hereunder exceed the interest rate legally
pennitted.
po.7141.7 K121105
7, UTILITILS=Tenant shall contract directly with setVing utility co mph e ndueor the inetere provision of. all separately z d es, and
all charges for such services and Landlord shall have no
nent e, rsuch ent next rges d?shall be added to and
directly to such utility compan cha liability for any interruption thereof. If notePaid when
become payable as Additional Rent with of .
g. COND'I'J70N OF PRLMISES: unions or warranties Pconcerni ng the Shopp g on
and agrees that Landlord has made no represe.rt
Center or Premises, except as expressly set forth in this Lease.
g, TITLE AND QDIET ENJOYMENT: Landlord covenants and represents that
Landlord is the owner of the Premises herein cfurrhe? ]eased
covenant tha?Tenant aO paY ng therentteand tn,
execute and deliver this Lease; and do eaceably and gt?tetly
performing the conditions and covenants herein contained, shall and may peaceably
have. hold and enjoy the Premises during the Term.
heating or
10. ALTL-RA?'?ON?aIMPR`O a? regulating, Sair ctondiuoning cooons, or
improvements shall be made,
sprinkler systems, plumbing systems, television or radio antennas, heavy equipment. apparatus
additions sent of
and fixtures, shrill be installed in or anacl ano t Landlord, 1? mu'ch alterations, without the written
Landlord. Unless otherwise indicated by and improvements, when made, installed in or artached to the
surrendered +u th th Premises and l-. belongaft ther of upon the
the property of Landlord and shall be surr without hindrance, molestation or injury If
expiration or earlier termination of this Lease. w
any such
landlord shall require Tenant to remove
?shall do so adtrTenant's rexpen se, such at the
expiration or earlier temination of the Le
obligation to survive expiration or earlier termination of the Lease.
11, . SIGNS: Except for signs which are located wholly within the interior of the
in
premises, no signs shall be placed, erected, maintained or painted on the Premises o or
any by l at tistaed the Shopping Center without the prior written consent of Ladllord. till signns the Term, and
the request of Tenant sharp be maintained by Tenant in g, conditio
Tenant Shall remove all signs at the termination of this lease and shall repair and restore an
damage caused by the installation or removal thereof. Iii the event Landlord elects to Landlord
a
uniform sign package on all. or a portion of the Shopping Center, Tenant shall P 2y
the cost of replacing its existing Tenant signage with siFpnagc consistent with any future Landlord
imposed specifications. Should Tenant fail to perform any of its obligations under this
Section 11, Landlord may perform such obligations on behalf of Tenant, and the cost and
expense thereof, together with interest from the date such costs and expenses were
after by
Landlord, shall be paid by Tenant to Landlord as Additional Rent within ten (10) days
delivery of a statement from Landlord identifying the amount duc.
12. MAINTENANCE AND CARE: JANITORIAL SERVICES: Tenant shall, at
Tenant's own cost and expense, take good care of the Premises and make all repairs and
replacements, including painting and decorating, necessary to maintain the Premises in good
condition and state of repair. At the expiration or earlier termination of this Lease, Tenant shall
Aua11l2liCI46
rrcntder and deliver up the Premises in goad order and condition. reasonable wear turd tear and
su neglect or fault of Tenant excepted. Tenant shall not
damage by the eletncM not resulting from arils. entrances, hallways and stairs adjacent to
? encumber nor obsuvct the sndewalks, dnVC1`?ays' y
the Premises, and shall keep and maintain the sane in a clean condition, tree from debris. trash,
refuse, snow and ice.
Tenant shall, at Tenant's own cost and expense, maintain, repair and, if necessary; plumbing replace all systems servicing the Premises, inc$nd l allbbe ?a?po??? {o?ltlite maintenance and
conditioning. heating and electrical systems, facilities repair of all other interior portions of the Premises. All y oudition.d ALxcept for repairs ?nde be
kept in constant working order and in a clean nests, Iicxnsee5. invitees, subtenants, nssignees, or
necessary by Tenant, its agents, employ, gt
successors (for which Tenant shall be responsible), Lcordlmaod dtaallle a rel p risible for structure
repairs to, and exterior maintenance of, the building Preises.
All interior janitorial services within the Premises of any nature whatsoever are to
be performed by Tenant at Tenant's expense ge to 13. GLASS, DAMAGE?RI?PWIRtsoeve or the destruction of or dank sed o aanY kind
the glass in the Premises from any the carelessness,
whatsoever to the Premises or any other part of the Shopping Center caused by guests,
negligeace or improper conduct an the part of Tenant or'f enant's agents, employe a said
licensees, invitees, subtenants, assignees, or successors, Tenant shall promptly cpair, h the case
damage or replace or mstorc any destroyed parts of the Premises or Shopping
may be. at Tenant's own cost and expense.
14. COMPLIANCE WITH LAWS: Tenant shall, at Tenant's cost rid expense,
promptly comply with all federal, state and local laws, ordinances pie?? or their, including,
requirements and directives ("Laws') applicable to ;?nd affecting
without limitation, all Laws concerning the presence, use and disposal of hazardous substances.
and shall promptly comply with all orders, regulations, requirements and directives of the Board
of Firc Undctwriters or similar authority and of any insurance companies which have iss ed of
about to i.ssue policies of insurance covering the. remises or its contents. for the prevention fire or other casualty, damage or injury.
15, INSPECTION AND REPAIR: Tenant agrees that Landlord and Landlord's agents,
employees or other representatives shall have the right to enter into and upon the Premises or any
part thereof, at all reasonable houts, for tltc purpose of examining the same or making such
repairs or alterations therein as may be necessary for the safety and preservation thereof. This
Section shall not be deemed to he a covenant by Landlord nor be construed to create an
obligation on the part of Landlord to make such im.pection or repairs.
16. SERVICES: The following services have been installed within the Premises: (i)
electrical service; (ii) water service; and (iii) sewer connection. Landlord makes no warranty or
representation concerning the condition of such services or the adequacy of the same to serve
?. Tenant's use of the Premises.
w=i iu = or JIM
17. INSURANCE : Tenant shall, at Tenant's sole cost and expense, carry at all times
shall have insuracombince with respect to
dg the Term comprehensive general
single limit for any one of the
Premises under a policy or policies which jury occurrence of not less than Two Million Dollars ($2.000,000) for personal
bobodily injuryes
death and damage or injury to or desuuction of property occurring t the Pre pol.ic and for broad form contractual liab?tyblc to 1 this
8Lease. ?onx?11 to do vusit esslin the
provided by insurers reasonably acceptable
of Pennsylvania, shall name Landlord as &dditior insured dlor3nd d. Prior to vide
the
that they may not be cancelled without thirty (30) days prior s prior to the expiration the
Commcncemenr Date. and thereafter not less than thirty (30) day p
insurance policies theretofore fornished, evtd shall provide
the existence ancVo renewal of such
insurance in a form satisfactory to Landlord
policies. Tenant shall also maintain all risk fire and extended coverage on a repair and tra replacement basis on all improvements to the
located Premises, at the Preen an Teraantt s all al. TUres, amintain such
furnishings, equipment and personality other insurance in effect as may be reasonably required by LMtdlord from time to tune.
18. INCREASE OF INSURANCE RATES: If by reason of the use to which the t's business Premises are put by Tenant or character oil-tar haiards shall be grcatertthnn normally ?rg?, or the mm-in in which on, Landlord's insurance talcs for fire
such additional payment Shall be the obligation of Tenant, and Tenant shall, upon demand, pay to
Landlord, as Additional Rent, the additional premium for such increased insurance.
19. INDEMNIFICATION: Tenant shall indehnnify and hold harmless Landlord from
and against any and all damages, liabilities, claims, losses, payments, expenses,judgments
costs (including attorney's fees) for damage to property or injuries to persons occasioned wholly
or in part by or resulting from any act or omission of Tenant or Tenant's agents, emp ym
guests, licensees, invitees, subtenants, assignees or suca:ssors; or arising by reason of a breach by
Tenant of any obligation of Tenant under this Leassc; or attributable in whole or in part to
Tenant's use of the Premises or the conduct of Tenant's business therein.
20. FIRE AND OTHER CASUALTY: lit case of fire or other casualty. Tenant shall
give immediate notice to Landlord. If the Premises shall be partially damaged by fire, the
elements or other casualty, Landlord shall repair the same as speedily as practical, but Tenant's
obligation to pay the rent hereunder shall not cease. If, in the opinion of. Landlord, the Premises
are so extensively and substantially damaged as to rend-x tbcin untenantable, then the rent shall
cease untilsuch time at the Premises shall be made tenantable by Landlord. However, if, in the
opinion of Landlord, the Premises are totally destroyed of so extensively and substantially
damaged as to require practically a rebuilding thereof, then the rent shall be paid up to the time of
such destruction and this Lease shall then come to an end. In no event, however, shall the
provisions of this Section become effective or be applicable if the fire or other casualty and
damage shall be the result of the carelessness, negligence or improper conduct of Tenant or
Tenant's agents, employees, guests, licensee, invitees, subtenants, assignees or successors. In
such case, the performance of all covenants, condition:: and terms hereof on Tenant's pan to be
performed shall continue and Tenant shall be liable to Landlord for the damage and loss suffered
.{.710101AK
by Landlord. If Tenant shall have been insured against any of the risks herein cAVered, then the
ord's costs and
tent of proceeds of such insurance shall be paid anover d such ch Landlord it came` 5 311 hhav no resource:
expenses to make the repairs he
against landlord for reimbmscrnent.
21. RELEASE AND WAWER OF SUDROOATION: Tenant releases Landlord and
Lsndlord's agents, employees and other representatives from 31ty and all liabiliry or responsibilky
to Tenant or anyone claiming through or under Tenant. by way of subrogatiart of otherwise for
to be nsauttained under
any loss or damage to property of Tenant covered by insurance: requires Trn?tain insurance
dris Least; (whether or not acraally maintained.) The Tenon shall obt whicfrom h T insurers might
carriers and will deliver to Landlord waivers of the subrogation
otherwise have under such policies.
22. CONDEMNATION: EMINENT DOMADI: If the land and Premises leased
herein, or of which the Premises are a part, or any portion thereof, hould be taken under the
eminent domain or condemnation proceedings, or if Bait or Other action shall be initiated for the
taking or condemnation thereof, or if in lieu of any formal condemnation pro dings or actions,
Landlord shall grant an option to purchase aril or shall cell and convey tl*ie premueS or any
body or public utility,
portion thereof, to the govcntrnerttal or other public authority, agency, 11
seeLing to take said land and Premises or any portion thereof, the this tease' at shall fix fix of
f
Landlord, shall terminate, and the term hereof shall end as Of such dart 'S L dlord the option
to any portion of
notice in writing; and Tenant shall have no claim or right to claijD or be rld to any on
any amount which may be awarded as damages or paid a--. the result of such conderri
are hereby moo' formal gnm to
proceedings or paid as the purchase price for such opdon. sale or conveyance
condemnation proceedings; and all rights of Tenant 10 damages, if any,
the cr by a of nee t aid,
Landlord. The Tenant agrees to execute and deliver any instrtunems, p
as may be deemed necessary or required to expedite condemnation proceedings or to effectuate a
proper rrausfer of title to such governmental or othe+: public authority. agency, body or public
utility • seeking to take or acquire the said lands and ]),rernises or any portion thereof. The Tenant covenants and agrees to vacate the said Premise3, remove all Tcrrnnt.'s personal property
aced
therefrom and deliver up peaceable possession tberc:of to Landlord or sLich Other P? delisioi g a
by Landlord in the aforementioned notice. Failure by Tenant to comp Y with any this clause shall subject Tenant to such costs, expenses, damages and losses as Landlord may
incur by reason of Tenants breach liereof.
23. ML-CHANICS* LIENS: Tenant shall provide Landlord with a COPY of a Waiver of
Mechanics Liens validly filed in Cumberland County prior to undertakin g arty construction
authorized by Landlord. if any mechanics' Or other lien; shall be created or filed against the
Premises by reason of labor performed or materials funtished for Tenant in tli ?teuctioon, errant
constriction, completion, alteration, repair or acidu.ioa to any building or imp
shall within fifteen days thereafter, at Tenant's own cosc and expense, cause such lien or liens to cise be satisfied and discharged or record. Failure so to do shall entitle landlord Lo exerci xuclu h are
remedies as arc- provided herein in the case of any default of this Lease, in addition pennitted by law.
C
24. ESTOPPEL CERTIF1bu Ines days nt?tice execute and deliver to Landlord east
the request of Landlord, upon ten (10)
certificate in the form of Exhibit "A" attached hereto or any other reasonable form supplied by
Landlord, it being intended dial any such ccrtiftcate dclivered pursuant hereto LQ?Iord a Tenlrtt upon
by others with whom Landlord may be dealing. Tenant hereby app
vew. Tenant does not execute and return
attorney-in-fact to execute any such u tt5 fm-,11 to ) th above.
such certificates within the tone p n
25. MORTGAGE PRIORITY; ATT'ORNMEN'f: This Lease shall be subject and
subordinate to any mortgage, and all rehcwafce b dpl$ ctd upon the paemiaes,or replacementsn pan thereof.
cxtenstotts thereof, which may now o the foregoing, Tenant agrees to
without requirement of further documentation- Notwidtsunding r desirable, to further
execute any instruments, without cost, which may be deemed necessary
effect the subordination of thii Rase to any such mortgage or mortgages. A refusal by Tenant to the execute such instruments shall entitle Landlord to the option of cancelling s all this Leas
to all and
part of
Term hereof is hereby expressly limited accordingly. If arty pets succeed or
Landlord's interest in the Premise, whether by purchase, foreclosure, deed in lieu of foreclosure
or otherwise, and if suan dby such xuccessor iu ithout cosL, interest,
may be deemed necessary or
successor and shill execute y instruments, w
desirable to confirm %uch anntmment.
26. NOTICES: All notices required under the terms of this Lease shall be given and
shall be deemed complete by mailing such notices by een ified or registered mail, return receipt
requested or by reputable overnight delivery service, to the address of the parties as shown at the
head of Ibis Lease, or to such other address as may be designated in writing, which notice of
change of address shall be given in the same manner.
27. ASSIGNMENT: The Tenant shall not, w ahout the written consent of Landlord,
assign, mortgage or hypothecate this Lease, nor sublease the Premises or any part thereof. If
Tenant requests Landlord's consent to an assignment or anblease of all or pact of the Premises,
Landlord shall have the right m recapture the Premises. If Landlord consents to an assignment of
the Lease or a sublease of all or part of the Premises, one: half of any profit or
consideration or rent in excess of the rent payable by Tenant hereunder shall be paid by Tenant to
Landlord as Additional Rent when received by Tenant. In the event of any assignment or
subleasing of the Premises, Tenant shall remain primarily liable tinder this Lease. Landlord's
consent to any assignment or subleasing of the Premises shall not be deemed to constitute
consent to any subsequent assignment or subleasing.
26. SALE OF PROPERTY: In the event of u sale of the property, this Lease shall be
assigned to the new owner and remain in full force and effect. The assigning Lmdlord shall not
be liable for any obligations under the Lease from and after the date of such assignment.
29. DEFAULT: Any other provisions in this: Lease notwithstanding. it shall b?nt of
event of default ("Event of Default") under this Lei4sc if': (i) Tenant fails to pay any
Base Rent, Additional Rent or other sum payable by Tenant hereunder when due, or (ii) Tenant
fails to observe or perform any other covenant or agreement of Tenant herein contained and such
we:nn 1 di-,tom
failure continues after written notice given by or on b6alf of Landlord to Tenant for morc dean
fifteen (15) days, or (iii) Tenant uecs or occupies the premises other than as permittedhe tcul of
or (iv) Tenant assigns or sublets, or purports to assign or sublet, the Premises or any p
other than in the mailer and upon the conditions set forth herein, or (v) Tenant abandons or s or vacates the Premises or, without Landlord's
e any or of Tenanti propety froneihe Prcrrntmaes
remove s to
or manifests an intention to m y o
other than in the ordinary and usual course of Tenant's business, or (vi) Tenant files a petition
commencing a voluntnty case, or has filed agaitut it a petition commencing an involuntary caws-,
under the Federal Bankruptcy Code (Title I 1 of the 'United Smtes Code), as now or hereafter in
effect, or under any similar law, or files or has filed against, it ? eetitioonn o ? w law o any is rupt y
or for reorganization or for an atTangement put?suanctm action, action shall not be dismissed,
state law, and, in the case of any such involuntary Tenant con enta is
dischargcd or denied within sixty (60) days after the filing there, or ena Tenant ides an
acquiesces in the filing thcreof, or (vii) if Tenant is a banking organization,
application for protection, voluntruy liquidation or dissolution applicable w banking
organizations, or (viii) a custodian, receiver, trustee or liquidator of Tenant or of all c
substantially all of Tenant's property or of the Premises shall be appointed in any proceedings
brought by or against Tenant and, in the latter case, sushi entity shall not be discharged within
sixty (60) days after such appointment or Tenant consent:; to or acquiesces in such appointment,
or (ix) Tenant shall generally not pay Tenam's debts as such debts becorne due, or shall make an
assignment for the bcnefic of creditors, or shall admit in writing its inability to pdebtery of
generally as they become due, or (x) any of the foregoing, occurs as to any guarantor
Tenant's performance under this Lease, or such guarantor or surety defaults on any provision
under its guaranty or suretyship agrcement The notice and grace period provision in clause (ii)
above shall have no application to the Events of Default referred to in clauses (iii) througb (ix)
above or, to the extent applicable, (x).
30. LANDLORD'S REMEDIES: Upon the occurrence of any Event of Default,
Landlord at any time thereafter may at its option exercise any one or more of the following
remedies:
a. Landlord may Lerminate this Lease, by written notice to Tenant, without
any right by Te=it to reinstate its rights by payment of rent due or other performance of the
terms and conditions hereof. Upon such termination Tenant shall immediately surrender
possession of the Premises to Landlord, and Landlord shall immediately bco of all Base to
rercive from Tenant an amount equal to the difference between the agg f;
and Additional Rent reserved under this Lease for the balartce of the Term, and the fair rental
value of the Premises for that period, determined as of the date of such termination.
b. Landlord may. 2t Landlord's option, with or without terminating this
Lease, enter upon the Premiscs and remove any and alp persons therefrom and take and retain
possession thereof by any means available to Landlord, including summary dispossess
proceedings. If Landlord elects to terminate Tenant's right to possession only, without
tenninating the Lease, Landlord may, at Landlord's option, enter into the Pierniset, remove
Tenant's signs and other evidences of tenancy, and take. and hold possession thereof as
hereinabove provided, without such entry and possession terminating the Lease or releasing
1,0!11 1,1 xr,Ad
Tenant, in whole or in part, from Tenant's obltg etioL andloor l may bu twill not be under e t and
or for any other of its obligation under this manner, for any tetirt, for such rent and
J obligation to, relet all or any part of the Premises in any ? aira, changes, alterations
upon terms satisfactory to Landlord and may decorate or make any rap
or additions in or to the Premises that mgY be race d all amounts due from Tenant to )..andlordmlCt
the Premises. Tenant will pay Landlord on demast
including repairs are
releL under this .Lease for the remainder offs o?-tcltt ?iu, pee of all a penses,t shat pay ? it
excess of the rent over the actual pro ;ha or construction costs and leasing conimissions. under tlzislras ntIf the Prerru?d? at the
have no obligation to mitigate Landlord damages
time of any Event of Default sublet or leased by Tenant to others, Landlord ord nay, the rent s
agent, collect rents due from any subtenant or other tenant and apply and
other amounts due hereunder without in any way affecting, Tenant's obligation to Landlord
hereunder. Such agency, being given for security, is hereby declared to be irrevocable
C. Landlord may declare Base pent and all items of Additional Rent (the
amount thereof to be based on historical amounts and Landlord's estimates for future ether wrath all) due and for the entire balance of the then current Term immediately ? n n as though such amounts were
other charges, paymerim, costs, and expenses pay Y
payable in advance on the date the Event of Default occurred-
d. Landlord may mmove all persons and property from the Premises, and
store such property in a public warehouse or elsewhere at the cost of and for the account of
Tenant, without service of notice or resorto legal t
or becamin! 5lia(all of ble forhany loss or damage whi waives)
and without being deemed guilty of tr p
may be occasioned thereby.
C. No right or remedy herein conferred upon or reserved to Landlord is
intended to be exclusive of any other right or remedy, and every
hereunder and medy hshall ereafter
cumulative and in addition to any offiLrr right or remedy given existing at law or equity. Without limitation of the foregoing. Landlord shall be entitled to
injunctive relief in case of the violation, or attempted or threatened violation, of any covenant,
agreement, condition or provision of this Lmse, or to a decree compelling performance of n law
covenant, agreement, condition or provision of this Lease, or to any remedy allowed by
or equity.
f. If proceedings shall be comtn=ed by Landlord to recover possession of
the Premises, either at the end of the Term or upon the earlier termination of this Lease, or for
non-payment of rent or any other reason, Tenant specifically waives the right to any notices now
or hereafter required by law, and agrees that no notices other than those ter, fonh in this lase
shall be required.
g- No expiration or termination of this Term by operation of law or otherwise (except as expressly provided herein), and no repossession of the Premises or any part thereof
shall relieve'fenant of its liabilities and obligations hereunder, all of which shall survive such
U11 tu.. VIV AI}
nd hen %ucoh chanrges aeon?d collect all
pti expiration, termination of rcpossessio t and Landlord
rent and other charges due hereunder any
h. Tenant hereby expressly waives any and all rights of redemption granted
Off
by or under any prescur or future law in the event this T.L-&.• event Tenant inated
evicted or event possessed is di-s
Landlord obtaining possession of the Premises, or to othe f the provisions at this I„eace.
for any cause, by reason of violation by Tenant of any P
i. The receipt by Landlord of any rent or other sum payable hereunder, with
uch
breach prior
knowledge of the breach of any eo 1Le atwaiver ?or cure of (oiher than the
rent or other sum) shall not constitute
exercising any of its rights or remedies hereunder an account of Tenant's breach.
j. In the event that Landlord commences suit for the repossession of the
Premises, for the recovery of rent or any other amount due under the provisions of this base, or
because of the breach of any other covenant herein contained on the part of Tenant to be kept or
performed, and a breach shall be established, Tenant shall pay to Landlord all expenses incurred
in connection therewith, including reasonable anomeys' fees.
31. CONFESSION OF JUDGMENTS-
u. cONYESSION or JUDGM???'?' FOR RI=Nw TENANT
IRREVOCABLY AUTHORIZES AND EMPOWERS THE PROTHONOTARY AND
CLtiRK OR ANY ATTORNEY OF ANY COURT OF RECORD TO APPEAR FOR AND
CONFESS JUDGMENT AGAINST TENANT FOR OUCH RENT AND OTHER SUNIS
AS ARE DUE AND1Olk MAY BECOME DUE UNDER THIS LEASE, WITHOUT STAY
OF EXECUTION AND WITH AN ATTORNEY'S COLLECTION F OF FIVE
PERCENT 15 %) OF THE AMOUNT DUE (BUT NOT LESS THAN $1,000.00), WHICH
IS REASONABLE AS AN ATTORNEY'S FEE. TO THE EXTENT PERMITTED BY
LAW, TENANT RELEASES ALL ERRORS IN SUCK PROCEEDINGS. IF A
VERIFIED COPY OF THIS LEASE IS FILED, IT SHALL NOT BE NECESSARY TO
FILE THE ORIGINAL LEASE. THE. AUTHORITY AND POWER TO APPEAR FOR
AND CONFESS JUDGMENT AGAINST TENANT SHALL NOT BE EXHAUSTED BY
THE INITIAL EXERCISE THEREOF AND MAY BE CONFESSED AS OFTEN AS ANY
EVENT OF DEFAULT OCCURS. SUCH AUTHORITY MAY BE EXERCISED
DURING R OR AF TER THE, THE EXPIRA IO OF ANY EXTENDED OR RENEW AND/OR LNG
OR AFTER
b. CONII'F.SSION OF 'DG r!T rOR POSSESSION. TENANT
IRREVOCABLY AUTHORIZES AND ENIPOWEItS THE PROTHONOTARY AND
CLERK OR ANY ATTORNEY OF ANY COURT OF RECORD TO APPEAR FOR AND
CONFESS JUDGMENT AGAINST TENANT FOR POSSESSION OT THE PREMISES,
WITHOUT STAY OF EXECUTION. TO TuE EXTENT PERMITTED BY LAW,
TENANT RELEASES ALL ERRORS IN SUCH PitOCE, EDINGS. IF A VERIFIED
COPY OF THIS LEASE IS FILED, IT SHALL. NOT BE NECESSARY TO FILE THE
ORIGINAL LEASE. THE AUTHORITY AND POWER TO APPEAR FOR AND
04,27 Ill-, 413 INS 10
CONFESS JUDGMENT AGAINST'1'ENA.NE COL NOSED AS EXHAUSTED BY TIC,
INITIAL. EXERCISE THLREOF AND MAY B OF-fEN AS ANY
_ EVENT OF DEFAULT OCCURS. SUCH OF E 'A ANI) OR DURING OR
DURING OR AFTER THE E
AFTER THE EXPIRATION OFA ? POSSESS OOlt RE, !4 OF NE
LHE PREMISES REMAINS
PROCEEDING IS TERMINATE
IN OR IS RESTORED TO TEXAN 1 ??? MANY SHALL HAVE SUBSEQUENT EVENT RIGHT F R
EVEN OR
THE SAME EVENT OF DEFAUL
EVENTS OF DEFAULT, OR UPON THE TO BAG ONE OR MORE FUR THERER ION Or, THIS LEASE ANY OF THE TF-RNIS OF THIS LE AS
ACTION OR ACTIONS TO O REIC?O ?COO? 0? POSSESSION OF THE
REMSFS
CONFESS JYJDGMI?.NT FOR
AS IIEREINABOVE PROVIDED.
C. pgESENTA. O S. TENANT HEREBY REPRESENTS TKAT
(A) TENANT IS KNOWLEDGE IN BUSINESS ATZ?ERNOT FOR PERSONAL
FOR BUSINESS OR cot?u?ER THE
OR RESIDENTIAL PUltl'OSESAATTNORNEY TO CONFESS JUDGMCN W DH
A .ORESAID tivARRAN 1 s of
OWN COUNSEL.
d, WAIVER OF RIGHTS. SUBSECTIONS 24.6.1 AND 24.61 ABOVE
SET FORTIS GRANTING T F?SE O WARRANTS Ol,' ATTORNEY ORNEY O CONFESS ST
TENANT. IN
JUDGMENTS AGAINST TENANT, TENANT [ERIEDY KNOWINGLY,
INTENTIONALLY, VOLUNTARILY AND UNCONDITIONALLY WAVES ANY AND
ALL RIGHTS TENANT HAS OR MAY HAVE TO PRIOR NOTICES AND AN
OPPORTUNITY FOI2 II>?ARINES ANDTHE COMMONWEALTH CONSTITUTIONS AND UNDER TI
LAWS OF THE UNITED S
pENNSYLVANIA.
Underneath It All ("TENANT")
B
Print N
Title:
32. CURE BY LANDLORD. If- Tenant shalt fail or reface to comply with and
perform any conditions and covenants of the within Lease, Landlord may, if Landlord so elects,
carry out and perform such conditioms and covenants, at the cost and expense of Tenant and the
said cost and expense shall be considered Additional RBnt_ Such Additional Rent shall be
payable on demand or, at the option of Landlord, shall be added to the installment of Base Rent
of Tenant'sb each of the to such
due e 1 Landlord's ave undeerrtth this L:nae this
other rern cctnedieF as Landlord may
covenants and conditions in this Lease contained,
4421 ia ! wr IM
33. REMOVAL OF TENANT'S PROPERTY: Any equipment, fixtures, goods or
other property of Tenant not removed by Tenant upon the tcnnination Tenants eve torn s hall any
quitting, vacating or abandonment of the premises by Tenant, or upon
to Teriant. to sell 01* without considered abandoned'and Landlord shall hae the right. and shall n not once accountable to Tenant
otherwise dispose of the same, 2t the p
for any part of the proceeds of such sale, if any. L'andlord's rights set forth in this Section ?hat
be in addition to such other remedies as landlord may have under this Lease by reason of
Tenant's breach of the covenants and conditions in this Lease contained.
34. NON-WAIVER BY LANDLORD: The various rights, remedies, options and
elections of Landlord, expressed herein are cumulative, and the failure of Landlord to enforce
strict performance by Tenant of any of the conditions and covenants of this Lease or to exercise
any elections or option, or to resort or have •recourse to any remedy herein conferred or the
acceptance by Landlord of any installment of rent after any breach by Tenant, in any one or more
instances, shall not be construed aan nd covenants, eoptionselections orr re lmedies, but the same hall
Landlord of any such conditions continue in full force aid effect.
35. LIABILITY Of LANDLORD: Tenant shrill loots solely to the Shopping Conter
And the rents derived therefrom for enforcement of any obligation hereunder or by law assumed
or enforceable against Landlord, and no other property or assets of Landlord shall be subject to
levy, execution or other enforcement proceeding for the satisfaction of Tenant's remedies or with
respect to This Lease. Landlord shall not be liable for any damage or injury which may be
sustained by Tenant or any other person, a.c a consequence: of the failure, breakage, leakage or
obstruction of the water, plumbing, steam, sewer, waste or soil pipes, roof drains, leaders,
gutterz, valleys, down spouts or the like or of the electrical, gas power, conveyer, refrigeration,
Sprinkler, air-conditioning or heating systems, elevators rr hoisting equipment; or by reason of
the elements.; or resulting from the carelessnuis, negligence or improper conduct on the part of
any other Tenant or of Landlord (except for intentional acts of Landlord) or Landlord's invitees,
to be furrnishd or control of Landloo with, imertuption of failure, rd, of
assignees subtenallLS, th ontrol of Landlord, of ay attributable
failure, beyond yo
any services to be furnished or supplied by Landlord.
36. NON-PERFORMANCE OF LANDLORD: This Lease and the obligation of
Tenant to pay the rent hereunder and to comply with the covenants and conditions hereof shall
not be affected, curtailed, impaired or excused, nor shall landlord be liable for any cost or
damages incurred by Tenant, as a result of Landlord's failure to supply any service or material
called for herein by reason of any rile, order, regulation or preemption by any governmental
entity. authority, department, agency or subdivision: or during any period of repairs or alterations
u the Shopping Center; or by reason of negotiations for the adjustment of any fire or other
casualty loss; or because of strikes or other labor trouble; or for any other cause beyond the
rcasorutble control of landlord.
37. RULES AND REGULATIONS: Landlord expressly reserves the right now and in
the future to promulgate reasonable rules and regulations relating to the use of the Premises and
M?:1111.: M_ IIU! 12
and eltions shall be deemed a pal't
all common areas of the Shopping Center, Whito exe cise the re n dies set forth in this of
this Lease and breach of which shall entitle Landlord
Lease or otherwise available to Landlord at law or in equity.
38. LANDLORD'S LIEN: hi a&ition to the statutory Landlord's lien, Tenant hereby
eat of all rent or other sums of money due
grants to Landlord a security interest to secure paytn uffer b reason
from Tenant, and to secure payment of any damage or loss,which Landlord mays •
Tenant of any covenant, agreement, or condition contained herein. upon
of the breach by all
ptvv err of Tenant presently
goods, wares, fuaures, furniture, improvements and other personal
removed From the Premises
or hereafter siwared on the Premises. Such property °?? stuns a miser
without the consent of Landlord until all arrearages in rent as well as any
due Landlord hereunder shall first have been paid, and all the covenants, agreemeniso, and to any conditions hereof have been fulfilled and performed by. Truant. In deitio Premises and tnlce
Landlord racy the
remedies provided herein, upon an event of default,
possession of any and all goods, wares. eqipment, the Premises without liability fortrep?_ ornd oth?`r
personal property of Tenant Srttrrrt? upon
Aaving ND such
conversion. Landlord may sell the same at a public or private pCgT TO or without
property at the sale. TENANT HEREBY WAIVES NOTICE,
HEARING PRIOR TO THE LANDS RD 50 30 ORCISE OF R OTHERWISE. RIGHT O h D le TRESS,
EITI-TER PURSUANT TO 68 PA.C
Landlord or its assigns may purchase the property unless `.uch purchase is othawise prohibited
by law. UWCNS otherwise provided by law, the requirement of reasonable notice shall be set if
such notice is given to Tenant at t eaat 1c3&T as a f credit gainstt the indebtedness secured by
'['}1e proceeds of such disposition shall be applied
the security interest granted in this paragraph, plus all expenses connected with the taking of
possession and sale of the property, including a rea_aonable attorney's fee. Any surplus shall be
paid to Tenant and Tenant shall pay any deficiencies upon demand. Tenant hereby authorizes
Landlord to file a financing statement in a manner sufficient to perfect the security interest of
Landlord is the aforementioned property and the proceeds thereof.
39. HOLDING OVER: If Tcnant shall continue to Occupy the Premises affterfor each
expiration or sooner termination of this Lease, Tenant shall pay, aq liquidated damag b
month of continued occupancy an amount equal to two times the monthly rent being paid by
Tenant hereunder for the month immediately prior to such holdover. Acceptance of such rent by
Landlord from Tenant after P trao notice given by Lsr?d rd to Tenant.not sFrve to restate or
extend this Le se or affect any Pr
40. RIGHT TO EXHIBIT: Tenant agrees to petmt Landlord and Landlord's agents,
employees or other representatives to show the Premises to persons wishing to rent or purchase
die same, and Tenant agrees chat during the final six (6) months of the Term, Landlord or
Landlord's agents, employees or ? co?off ntagtt?e p?cml sehave a for rent got for s?ce,notices on the
front of the Premise, or any p
41. RENTAL TAX: Tenant shall pay I andlord upon demand as Additional Rent the
amount of any rental excise, transaction, sales, busincs:i or privilege tax (except income tax)
w,:,,n? ntn??s 13
attributed to or measured by rental which is now or subscquen[ly imposed upon Landlord by any
government or unit thereof.
used in this Lease, the term
42. TENANT'S PROPORTIONATE SHARE- : rator
which "Tenant's Proportionate Share" shall refs to'lk tinator of hich is the ground floorgsquare round
floor square footage of the Premises and the denom
footage of all rentable buildings in Erie Shopping Center, which shall be subject to adjustment for
increases and decreases in the square footage of the the comm Plcmiscs encemert[ of this LpSe]ngtv''o and
Shopping Center. Tenant's Proportionate Share
sixth tenth.q of one percent, rounded to nearest tenth of one percent (2.6%).
AND ASSESSMENTS: Upon die Tenant's exercise of any Renewal
43. TAXES
Term, Tenant shall pay to Landlord in each calendar r, Tenant's proportionaw
nears all tax s and of alt
"faxes (as defined hereafter). As used herein, t?enU:r, including general real property taxes
assessment,, levied or assessed against the Shopping Addi and assessments for public improvements. •oad's? imae of t°t l T es foriona
thel
neat in monthly installsnznES in advance, based upon Lan wit calendar year. Following the end of oeunt of Taxes fo t he calcr?dar year and the Taxesi if any, to
statement setting forth the actual m
statements bi the ev nt bat thet be due within thirty
paid Tenant to Layidlord for such
(30) a cull am um of Taxes
clays s after receipt by Tenant of cess for a calendar year are less than total tax payments by Tenant for suchperria•T of thexl ease,
shall be applied to Tenant's next succeeding Tax PayrnenE.. During
Tenant shall pay to Landlord in each calendar ?? ? aa?t Proportionate e Shopp ng Centel fr m the
additional Taxes (as defined herein) g
Taxes paid by Landlord for fiscal year 2004-2005, such amount to be evidenced to Tenant if such
assessment occurs.
Should this Lease commence or terminatc on a day other than the first day of the
pro-rated based on the
calendar year, Tenant's shae of which Taxes ffor such such calendar year sr all year.
number of days of the Term
44. COMMON AREA SERVICES: Landlord shall Furnish Tenant those services
hereafter described which shall be included in CAM (defined hereafter):
a. Illuminate parking area until 12:00 PM
b. Refuse container or containers
c. Exterior lighting on or around building
45. COMMON AREA MAINTENANCE: Tenant shall pay to Landlord Tenant's
Proponionate Share of the cost incurred by landlord, not to exceed $0.50 cents per square foot,
in operating, maintaining, repairing, and replacing the controon areas and facilities of the
Shopping Center (,,CAM',), including, but not limited to. Landlord's costs of painting, signing,
lighting, cleaning, striping. policing and security and snow opremiums for liability,
casualty and other insurance maintained by Landlord, yeprs o and replacements
roofing, curbs, walkways, landscaping, drainage. pipes, ducts, conduits lighting and ocher
m rlm, nr_UM 14
include rental agency and man genneni fees and common sewer, water,
common facilities and structures, garbage collection
. electric and other utilities, but CAM
? that Landlord may incur.
each calendar year, Landlord shuts provide Tenant with
At the commencement of an estimate of the total projected costs of CAM for such calendar year- During such calendar
year, of
Tenant shall pay, in advance, each month, Foone llowingt he end of t each proportionate Share
year,
projected CAM cost, as Additional Rent. actual
amounE Landlord shall provide Tenant with a s tc ofuudh costs, lar'd the amount of CAM, i?tnY?or
the calendar year, Tenant's Proportionate Share Which amount shall be due within
still to be paid by "Tenant to Landlord for such calendar year, thirty (30) clays after receipt by Tenant of such sratemcnt. In the event that the actual amount on yme Tenant's Proportionate Share of CAM costs
shall be year are less
Tc:nant'stn xt>uccec?g C M
by Tenant for such period, then .
payment.
during a calendar year, make
Landlord may, from time to time
differences betweenracbmal CAM
adjustments to Tenant`s monthly CAM payment
costs and Landlords projection of CAM costs for such calendar year.
if any repair or replacement shall be a capital expenditure, CAM cosu shall
include the amortized cost of pro provided and [Here shall be ?no charge for such service, then idshall
_ municipal refuse disposal be p
be Tenant's responsibility toe sQ n r arrange
eontainen; smell be placed at a location selee?itedebYr
collection and disposal of th
te sit redam shall be the Premises-removed by Tenant not
Landlord not sooner than II 5:00 p-m• fur°?d before shall pickup
later than 5:00 p.m. h y of Lhe P
Should this Lease commence or terminau: on a day other than the first day of the
calendar year, Tenant's share of CAM cosu for such partial year shall be pro-rated based on the
number of days of the Term which falls within such cakutdar year.
46. ROOF: Landlord shall have the exclusive right to use and install equipment on
the roof of the building in which the Premises is located, provided that such use, and the
installation of such equipment, shall not interfere ? Tenant's use of t) Frernises. -7
4iE he e of it. bligations heretrtder, upon
Up(
47. SECURITY: As Iscauril. performanc
execution of this Lease, Tenant ndlor d, aril agre t,o maintain thereafter, a security
deposit of One Thousand and Dollars( ). Up n the occurrence of any
event of default hereunder, Landlord may, from time to time, withollE
good any arice to any ohc Pat or
remedy, use the securiLy depoit to the extent necessary. to make
Additional Rent, or any other loss or damage of Landlord, and Tenant shall thereafter
immediately replenish the all or such portion of the security deposit so used by L=dlord. The
remaining balance of the security deposit shall be returned by Landlord to Tenant within a
reasonable time after termination of this Lease: provided, however, that Landlord shalt not be
?• obligated to return the remaining balance of such security deposit until all payments due from
No"Ia 2 on '46 15
been Ynadc in full' The
Tenant to Landlord under this Lease shall or a me
of Landlord's damages incase of default
be considered and aclvaacc payment of teat
by Tenant. Tenant shall Teceiyetof Ltndlo dSeln (her event of aj1sttl Orr transfcf of
commingle the same with other monies
Landlord's interest in the Premises,Landlord shall have the right to transfer the security deposit new
lan to the purchaser or transferee and upon such s err Tenant , ihcr up nlbe keleased om a 11 ab?ity to
for the return of the security depo9ic and Landlord
Tenant for the return of or accounting for such security deposit.
contained shall bef this
48. VA1..IDIIY OF LEASE: f he tarns, clause conditions,
Lease shall be deemed to be severable I any diction
raLion adjudged to be invalid or unenforceable ? validity ro? ? competent ?au esor p oviciob=4 but such
-,my applicable law, it shall not affect
other clauses or provisions shall remain in full force and effect.
49. 'ENTIRE CONTRACT: This Lease contains the entire contract between the
parties. No representative, agent or employee of Landlord has been autho iced to make any
the. or modify representations or promises with reference W the widiin letting or to very,
term. hereof. No additions, changes or modification::, renewals or extensions hereof, shall be
binding unless reduced to Wring and signed by landlord and Tenant.
50. GENDER ARID BINDTNL G EFFECT: In all references herein to any parties,
persons. entities or corporations acid the use of any particular gendor or the plural or singular
number is intended to include the appropriate gender or number as the text of the within
'J instrument may require. All the terms, covcuants and conditions herein contained shall be for
and shall inure to the benefit of and shall bind the respective parties hereto, and their heirs,
executors, administrators, personal or legal n-presentatives, successors and assigns.
51. . FORCE MA]EURE: This Lease and the time of performance of the obligations
of both Landlord and Tenant hereunder shall be extended to the extent reasonably
al entity, authority
governmental
accommodate any rule, order, regulation or preemption by any
department agency or subdivision promulgated subsequcnt to the date of this Lease.
52, JOINT AND SEVERAL LLa BILITY: If two or more individuals, corporations.
partnerships or other business associations (or any combination of the aabbove) hall all sign this
Lease as Tenant, the liability of each such executing party pay rent obligations of Tenant horeunder shall be joint and scvuol.
53 APPLICABLE LAW: This Lease :hall be construed in accordance with the laws
of the Commonwealth of Pennsylvania.
ec-r1fl.7nr M 16
54. WAI'VER OF JURY TRIAL.
-J TENANT HEREBY WAIVEST RIAL BY JURY IN ANY ACTION,
OF OR ANY WAY
PROCEEDING OR COUNTERCLAfM ARISING RELATIONS OUT
i3II' OFTLANDLORn AND
CONNECTED WITH 1I LEASE TI
TTIKRE TO.
'T'ENANT, TENANT'S USE SE OR OCCUPANCY RE,ME?Y V?VITHSR?Sl OR ANY
OF INJURY OR DAMAGE. OR ANY OTCR
IN WITNESS HEREOF, the part'c5 hereto have hereunto set their hands and
seals, or caused these presents to be signed by their proper and corporate ofCieerS and their proper
corporate seal to be hereto affixed, the day and year flot above Written.
ST ATE COLLEGE PREMWIR RLNTALS, L.P-a
.11
ZM5-
III,"- In! 01.11 All
17
Exhibit "A"
ESTOP'P , LHE .1C6-1'E
("Tenant"), hereby certifies that:
The undersigned,
k a true and coirect copy of t1le lease ("Lease")'.
h o as Exhibit A j: as Tenant, and
1. Atexed 200
_5, by and between the widersigned,
dated as of the day of as Landlord ("Landlord"), covering certain Spce
State College Premicr Rcntals, P.
("Premises") identified a. Store in the Shopping Center known as Hoover's Plaza to
Lemoyne, Pennsylvania,.
The Leuse is valid and in full force and effect on the data hereof. The termination
date of the present tern of the Lease, excluding renewal is W'301 J D
3, There are no other agreements between Landlord and Tenant with respect to the
Premises.
4. To Tenant's knowledge, there are no uncured defaults on die pai*E of Tenant or oil occurred the pan of Landlord under the L-ea•Se, and no evcnr
both Sw•11 constitute a default under'the Lease,
with du giving of notice or the lapse o time,
5. Fixed Rent payable by Tenant presently is $-------- -- per month. Additional
Rent (including Tenant's share of taxes and common area maintenance costs) Payable by Tenant
presently is X1- per month. No rent has been paid by Tenant more than thirty (30)
days in advance of its due date. Tenant's security deposit is
6. Tenant claims no present charge, lien or claim of offset under the Lease or
otherwise, against rents or other charges due or to become due thereunder.
7. Tenant has accepted possession of the Premises and any improvements required
by the teruts of the Leases to be made by Landlord thereunder have been completed to the
satisfaction of Tenant
8, The address far notices to be sent to Tenant is as set forth in Lbe l--P-' Me.
Any amendments or modiftcationg to the Lease should be li,=d here:
riM 111.: 142141
enant has no tight of Cirst refusal. option or other right to purchase the Premises
9. T
or the Building. dlord and
f el Certificate may be relied upon by Lan
is E4topp
and their successors and assignees.
ted and delivered this E.$toPPel
c undersigt? has ex?
IN WrrNESS.4HERE , 20
Certificate on the day of
enact)
By:
Title:
2
3
VERIFICATION
I verify that the statements made in the foregoing complaint for
Declaratory Judgment are true and correct.
I understand that false statements herein are made subject to the penalties of
18 Pa. C. S. §4904 relating to unworn falsification to authorities.
Date: February 19 2007 ?3'1l V ' 1?
Kimberly S. .11anzhoff '?
n
(a
a ?
IN THE COURT OF COMMON PLEAS FOR CUMBERLAND COUNTY, PA
CIVIL ACTION - LAW
KSB ENTERPRISES, INC. tIa
UNDERNEATH IT ALL, Civil Action No. 07-991
Plaintiff,
vs.
STATE COLLEGE PREMIER DECLARATORY JUDGMENT
RENTALS, L.P.,
Defendant.
PRAECIPE FOR ENTRY OF APPEARANCE
TO THE PROTHONOTARY:
Kindly enter the appearance of the undersigned counsel on behalf of
Defendant, State College Premier Rentals, L.P.
Respectfully submitted,
MILLER, KISTLER, CAMPBELL,
MILLER, WILLIAMS & BENSON, INC.
By:
Date: March 6, 2007
David B. ?!bnsiglio, Esquire
I.D.# 72772
720 South Atherton Street
State College, PA 16801
(814) 234-1500
.
IN THE COURT OF COMMON PLEAS FOR CUMBERLAND COUNTY, PA
CIVIL ACTION - LAW
KSB ENTERPRISES, INC. t/a
UNDERNEATH IT ALL,
Plaintiff,
vs.
STATE COLLEGE PREMIER
RENTALS, L.P.,
Defendant.
Civil Action No. 07-991
DECLARATORY JUDGMENT
CERTIFICATE OF SERVICE
I, David B. Consiglio, Esquire, of Miller, Kistler, Campbell, Miller, Williams &
Benson, Inc., do hereby certify that on this 6th day of March, 2007, a true and correct copy
of the foregoing document was served on the following person by depositing the same in the
United States Mail, postage prepaid, addressed as follows:
John W. Purcell, Jr.
Purcell, Krug & Haller
1719 North Front Street
Harrisburg, PA 17102
MILLER, KISTLER, CAMPBELL,
MILLER, WILLIAMS & BENSON, INC.
By:
David B(. gonsiglio, Esquire
tnc
Yf?
? l.N
IN THE COURT OF COMMON PLEAS FOR CUMBERLAND COUNTY, PA
CIVIL ACTION - LAW
KSB ENTERPRISES, INC. t/a
UNDERNEATH IT ALL,
Civil Action No. 07-991
Plaintiff,
VS.
STATE COLLEGE PREMIER
RENTALS, L.P.,
DECLARATORY JUDGMENT
Defendant.
PRELIMINARY OBJECTIONS
AND NOW comes Defendant, State College Premier Rentals, L.P., by and through
its undersigned counsel, and files these Preliminary Objections to the Complaint pursuant to
Pa.R.C.P. 1028(a) and states in support thereof as follows:
PRELIMINARY OBJECTION I - (DEMURRER)
1. The Complaint fails to state a claim upon which relief can be granted inasmuch
as it fails to identify even a single provision of the Lease which Plaintiff
contends has been violated by Defendant Landlord.
2. The Complaint avers that Defendant "commenced major exterior renovations
to the property"; however, the Complaint contains no provision which states
that the Landlord is precluded from making such renovations and indeed said
renovations, to the extent they exist, demonstrate the good faith of the
Landlord in improving the property notwithstanding the lack of Landlord's
obligation to do so.
3. The Lease is a commercial lease and was negotiated at arms' length by
commercial parties; the Complaint itself demonstrates that Plaintiff is a
business person inasmuch as it avers that she has been in business for "more
than twenty years." (See, Complaint ¶ 16).
4. The utter absence of any provision under which relief could be granted is
demonstrated by the Complaint's attempt to manufacture a basis for the action
by referring to unspecified and non-existing "implicit" agreements. (See,
Complaint ¶ 12).
5. As a matter of law, courts have refused to hold contracts unconscionable
simply because of an alleged disparity in bargaining power. Witmer v. Exxon
Corporation, 434 A.2d 1222, 1228 (Pa. 1981).
6. As a matter of law, a confession of judgment clause is legitimate and
enforceable under longstanding Pennsylvania law so long as it is in writing and
signed by the person to be bound by it. Frantz Tractor Company. Inc. v.
Wyoming Valley Nursery, 120 A.2d 303, 306-307 (Pa. 1956); Heeren v.
Remington, 47 Pa.Super. 437 (1911).
7. The theory of legal impossibility or impracticability is based on an objective
standard and does not apply merely because performance is beyond a
particular party's capacity to render it. Luber v. Luber, 614 A.2d 771, 774
(Pa.Super. 1992); In Re: Busik, 759 A.2d 417, 423, n. 9 (Pa.Cmwlth. 2000).
-2-
8. Moreover, the express language of the Lease provides for no exceptions to the
Tenant's absolute obligation to pay rent.
WHEREFORE, Defendant respectfully requests judgment in its favor, the granting
of its Preliminary Objections, and the dismissal with prejudice of the Complaint.
PRELIMINARY OBJECTION II - (FAILURE TO CONFORM TO LAW)
9. The party to the Lease as identified in the Lease is Kimberly S. Banzhoff as set
forth on Page 1 of the Lease, Page 11 of the Lease, Page 17 of the Lease, and
the Estoppel Certificate.
10. Pennsylvania Rule of Civil Procedure 2002 states that all actions shall be
prosecuted by and in the name of the real party in interest.
11. The real party in interest is Kimberly S. Banzhoff and not the nominal plaintiff
in this matter, identified as KSB Enterprises, Inc.
WHEREFORE, Defendant respectfully requests the dismissal of the Complaint with
prejudice.
PRELIMINARY OBJECTION III - (DEMURRER)
12. The Complaint seeks, in part, to "enjoin the Defendant from any attempt to
enforce any of the provisions of the Agreement." (See, WHEREFORE clause
of Complaint).
-3-
13. The Complaint fails to allege any theory of law or any provision of the Lease
which could possibly entitle even a proper plaintiff to such relief.
WHEREFORE, Defendant respectfully requests the dismissal of the Complaint with
prejudice.
Respectfully submitted,
MILLER, HIS
MILLER, WIL:
By: '-.
Date: March 15, 2007
CAMPBELL,
& BENSON, INC.
David B. Vonsiglio, Esquire
I.D.# 72772
720 South Atherton Street
State College, PA 16801
(814) 234-1500
IN THE COURT OF COMMON PLEAS FOR CUMBERLAND COUNTY, PA
CIVIL ACTION - LAW
KSB ENTERPRISES, INC. t/a
UNDERNEATH IT ALL,
Plaintiff,
vs.
STATE COLLEGE PREMIER
RENTALS, L.P.,
Defendant.
Civil Action No. 07-991
DECLARATORY JUDGMENT
CERTIFICATE OF SERVICE
I, David B. Consiglio, Esquire, of Miller, Kistler, Campbell, Miller, Williams &
Benson, Inc., do hereby certify that on this 15th day of March, 2007, a true and correct copy
of the foregoing document was served on the following person by depositing the same in the
United States Mail, postage prepaid, addressed as follows:
John W. Purcell, Jr.
Purcell, Krug & Haller
1719 North Front Street
Harrisburg, PA 17102
MILLER, KISTLER, CAMPBELL,
MILLER, WILLIAMS & BENSON, INC.
By:
Davi ".Onsiglio, Esquire
p..r,
rTj
c
?7-- C- r.il C)
PRAECIPE FOR LISTMG CASE FOR ARGUMENT
(Must be typewritten and submitted in duplicate)
TO THE PROTHONOTARY OF CUMBERLAND COUNTY:
Please list the within matter for the next Argument Court.
---------------------------------------------------------------------
CAPTION OF CASE
(entire caption must be stated in full)
KSB ENTERPRISES, INC. t/a
UNDERNEATH IT ALL, (Plaintiff)
vs.
STATE COLLEGE PREMIER
RENTALS, L.P.,
(Defendant)
No. 991 , 2007 Term
1. State matter to be argued (i.e., plaintiff's motion for new trial, defendant's demurrer to
complaint, etc.):
Defendant's Preliminary Objections/Demurrer to Complaint and
failure to conform to law.
2. Identify counsel who will argue cases:
(a) for plaintiff:
John W. Purcell, Jr., Esquire Purcell, Krug & Haller
(Name and Address)
1719 North Front Street, Harrisburg, Pa 17102
(b) for defendant:
David B. Consiglio, Esquire - Miller, Kistler, Campbell
(Name and Address)
720 South Atherton Street, State College, PA 16801
3. I will notify all parties in writing within two days that this case has been listed for argument.
4. Argument Court Date:
May 16, 2007
Signature
David B. Consiglio, Esquire
Print your name
Defendant State College Premier Rentals, L.P.
Date: March 21, 2007 Attorney for
^? r
ti-
F V
"'""111
SHERIFF'S RETURN - OUT OF COUNTY
CASE NO: 2007-00991 P
COMMONWEALTH OF PENNSYLVANIA:
-"COUNTY OF CUMBERLAND
i
KSB ENTERPRISES INC T/A UNDERN
VS
STATE COLLEGE PREMIER RENTALS
R. Thomas Kline
, Sheriff or Deputy Sheriff who being
duly sworn according to law, says, that he made a diligent search and
and inquiry for the within named DEFENDANT , to wit:
STATE COLLEGE PREMIER RENTALS LP
but was unable to locate Them
deputized the sheriff of CENTRE
in his bailiwick. He therefore
serve the within COMPLAINT & NOTICE
County, Pennsylvania, to
On March 9th , 2007 , this office was in receipt of the
attached return from CENTRE
Sheriff's Costs: So answer
Docketing 18.00 --?? -
Out of County 9.00 ,
Surcharge 10.00 R' Thomas Kli e
Dep Centre County 36.50 Sheriff of Cumberland County
Postage 2.22
75.72 ? 3? dt.?b1 ?,,
03/09/2007
OURCELL KRUG HALLER
Sworn and subscribe to before me
this day of
A. D.
In The Court of Common Pleas of Cumberland County, Pennsylvania
KSB Enterprises Inc etc
vs.
State College Premier Rentals LP No. 07-991 civil
Now, February 22, 2007 , I, SHERIFF OF CUMBERLAND COUNTY, PA, do
hereby deputize the Sheriff of
County to execute this Writ, this
Centre
deputation being made at the request and risk of the Plaintiff.
Sheriff of Cumberland County, PA
Affidavit of Service
Now, , 20 , at
within
upon
at
by handing to
o'clock M. served the
a copy of the original
and made known to
So answers,
the contents thereof.
Sheriff of
Sworn and subscribed before
me this day of , 20
COSTS
SERVICE _
MILEAGE _
AFFIDAVIT
County, PA
SHERIFF'S OFFICE CUMBERLAND COUNTY SHE
CENTRE COUNTY
Rm 101 Court House, Bellefonte, Pennsylvania, 16823 (814) 355-6803
SHERIFF SERVICE INSTRUCTIONS FOR SERVICE OF PROCESS: You must file one
instruction sheet for each defendant. please type or print legibly. Do
PROCESS RECEIPT, AND AFFIDAVIT OF RETURN Not detach any copies.
1, Plaintiff(s)
KSB Enterprises, Inc.
2. Case Number
07-991
3. Defendant(s) 4. Type of Writ or Complaint:
State College Premier Rentals L. P. Complaint 101817
SERVE 5. Name of Individual. Comoany, Corporation, Etc., to Serve or Description of Properly to ne L8vleo, Attacnea or bola.
State College Premier Rentals L P
AT ? 6. Address (Street or RFD, Apartment No., City, Boro, Two., State and Zip Code)
127 Sowers Street, State College, PA 16804
7. Indicate unusual service: r ,1. Reg Mall [. Certified Mai! I Deputize 137. Post r Other
Now, 20 1 SHERIFF OF CENTRE COUNTY, PA., do hereby deputize the Sheriff of
County to execute this Writ and make return thereof according to law. This deputation
being made at the request and risk of the plaintiff.
en en Countv
8. SPECIAL INSTRUCTIONS OR OTHER INFORMATION THAT WILL ASSIST IN EXPEDITING SERVICE
NOTE ONLY APPLICABLE ON WRIT OF EXECUTION: N.B. WAIVER OF WATCHMAN -Any deputy sheriff levying upon or attaching any property under within writ may leave
same without a watchman, in custody of whomever is found in possession, after notifying person of levy or attachment, without liability on the part of such deputy or the sheriff to
any plaintiff herein for any loss, destruction or removal of any such property before sheriff's sate thereof.
9. Print/Type Name and Address of ttorney/Originator 10. Telephone Number 11. Date
CUMBERLAND COUNTY SHERIFF (717) 240-6390
ONE COURTHOUSE SQUARE
12. Signature
CARLISLE, PA. 17013
SPACE BELOW FOR USE OF StJERIFF ONLY E BEL 4"JS LINE
13. la d nowledae receipt of the writ SIGNATURE of Authorized CCSD Deputy of Clerk and Title 14. Date Filed 15. Expiration/Hearing Date
or cornptam as indicated above.
16. Served and made known to Sherry Moore 28
?.._?....__._.. , on the ..._. _. February
__._._...?day of __....._ ,
2007 2:40 PM 127 Sowers Street, State College, PA 16804
20 ?___,__ , at o'clock, m., at
County of Centre
Commonwealth of Pennsylvania, in the manner described below:
r Defendant(s) personally served. office manager
r Adult family member with whom said Defendant(s) resides(s). Relationship is
r Adult in charge of Defendant's residence.
177 Manager/Clerk of place of lodging in which Defendant(s) resides(s).
Agent or person in charge of Defendant's office or usual place of business.
and officer of said Defendant company.
Other
On the day of 20 , at o'clock, M.
Defendant not found because:
177 Moved (- Unknown 177 No Answer 177 Vacant Other
Remarks:
Advance Costs Docket Service Sur Charge Affidavit Mileage Postage Misc. Total Costs Costs Due or Refund
75.00 9.00 9.00 0.00 2.50 15.00 1.00 36.50 (38.50)
17. AFFIRMED and subscribed to before me this So Answer.
18
Ign tur e eri 19. D
20. day of /
-10 4l lo
21. ign re of She ' 22. Dat
23.
Notary Public
SHERIFF OF CENTRE COUNTY
Amount Pd. Page
My Commission Expires
24. 1 ACKNOWLEDGE RECEIPT OF THE SHERIFF'S RETURN SIGNATURE
e
ceived
OF AUTHORIZED AUTHORITY AND TITLE. 77
#4
KSB ENTERPRISES, INC. T/A
UNDERNEATH IT ALL,
Plaintiff
V.
STATE COLLEGE PREMIER
RENTALS, L.P.,
Defendant
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
NO. 2007 - 0991 CIVIL TERM
IN RE: DEFENDANT'S PRELIMINARY OBJECTIONS
BEFORE OLER, GUIDO, EBERT, JJ.
ORDER OF COURT
AND NOW, this 27TH day of JULY, 2007, after review of the parties' briefs and
having heard argument thereon, the Defendant's Preliminary Objections in the nature of a
demurrer and the failure to comply with Pa. R.C.P. 2002 are SUSTAINED and the
complaint is DISMISSED.
Edward E. Guido, J.
o4i W. Purcell, Jr., Esquire
,Bra'vid B. Consiglio, Esquire
Court Administrator
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