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did require total replacement in June 1991, then the subject roof contained numerous latent
defects which were unknown and unknowable to Defendant at the time of entering this Lease.
10. Denied as pleaded. Admitted, however, that Plaintiff requested that Defendant
effect necessary roof repairs, and Defendant complied with such request. The area of the roof
which was causing problems from leaks due to dented decking and storm damage was replaced
in the summer of 1994.
II. Denied. Defendant retained the services of a roofing consultant in 1994, and such
consultant did not recommend that the entire high roof be replaced.
12. Denied. In further answer, Paragraphs 10 and II, above, are incorporated by
reference. In further answer, Defendant agreed to move forward with roof repairs in 1994, with
the result that the center section of the roof, from which leaks were apparently emanating, was
appropriately repaired.
13. Denied. Paragraphs 10, II, and 12, above, are incorporated by reference. After
the center section of the roof was repaired it did not appear that any additional repairs were
needed, except for a few minor leaks which were remedied in the autumn of 1994.
14. Denied as pleaded. It is admitted, however, that a substantial amount of roof
replacement materials were delivered to the premises at Defendant's request, because at the time
of such delivery, neither Defendant, nor the roofing contractor, were aware of precisely the
amount of roof repairs that would be necessary.
15. Denied as pleaded. Defendant, acting in good faith, and with the actual or
constructive knowledge of Plaintiff, determined that only a portion of the high roof required
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replacement in 1994, which was accomplished, as aforesaid. Excess roofing materials which
had been delivered to the site at a time when the extent of the repairs was not precisely known,
were removed by the contractor from the premises at no cost or expense to the Plaintiff.
16. Denied as stated. Even though the subject roof was structurally sound, and was
not leaking, Defendant, in good faith. initiated work, with a competent and reliable building
contractor, in 1995 to complete the replacement of the high roof, but because of unforeseen and
extremely severe weather conditions. the contractor was unable to complete the necessary work
until 1996. This project was done voluntarily by Defendant in the interest of maintaining a
business-like relationship with Plaintiff, but was not required under the lease terms.
17. Denied. Paragraph 17 pleads a conclusion of law, to which no response is
required. In the alternative, if response is necessary. Defendant caused roof replacement and
repairs as necessary, and also replacement and repairs which were not necessitated by the lease
agreement, and did not in any way breach the lease agreement.
18. Denied. Paragraph 18 pleads conclusions of law to which no response is required.
In the alterative, if response is required, it is denied that Plaintiff is entitled to receive any
additional rental monies from Defendant under any applicable section of the Lease.
19. Admitted.
20. Denied as stated. It is admitted that Defendant claims proper reduction in the
amount of 1995 overage rent by reason of roof repairs which were made in 1995. It is denied
that Defendant contracted for total roof repairs in 1994, or that more roof repairs should have
been made in 1994 than those repairs which were actually made. Defendant's claim for
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reduction of the amount of 1995 overage rent is totally appropriate and should be honored by
the Plaintiff.
21. Denied. In answer, the averments of Paragraphs 9, 10, 11, 12, 13, 15, 16, 17,
and 20, above, are incorporated by reference. It is specifically denied that Defendant's claim
for offset against 1995 overage rent is improper or inappropriate and it is specifically denied that
Defendant was under any duty to perform an entire high roof replacement in 1994 and it is
specifically denied that Defendant contracted for such work in 1994, and it is specifically denied
that Defendant was obligated under any applicable term of the Lease to effect a total roof
replacement in 1994.
22. Denied. Paragraph 22 pleads a conclusion of law to which no response is
required. In the alternative, it is denied that Defendant has failed to pay appropriate overage
rent for 1995, and it is denied that any conduct on the part of Defendant has constituted a breach
of the Lease.
23. Denied. Defendant has no obligation whatsoever to Plaintiff for overage rent for
1995.
WHEREFORE, Defendant demands that Plaintiffs Complaint be dismissed at Plaintiffs
costs.
NEW MA TIER
24. Paragraphs I through 23, above, are incorporated by reference.
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25. Plaintiffs claim for overage rent for 1995 in the amount demanded is unjust,
inequitable, and unfair, and further, is in breach of the lease agreement because Plaintiff is
claiming that Defendant was required to provide a roof that was better than the roof in place
when the lease commenced.
26. Plaintiff, by this action, is attempting to interpret and adjust the overage rent
clause, and the appropriate basis for deductions therefrom, so as to improperly benefit the
Plaintiff and unduly prejudice the Defendant.
27. Plaintiffs claim totally disregards the prior condition of the subject roof, and the
fact that Defendant's repairs of the roof were appropriate and in the exercisl' of good faith at the
time the various repairs and/or replacements of portions of the roof were made.
28. The entire high roof did not require replacement in 1994,
29. The high roof contained latent defects which exited prior to Defendant's occupancy,
the existence of which was known, or reasonably should have been known, to Plaintiff. but as
to which Plaintifffailed to notify Defendant at time of inception of the lease.
30. Defendant did not know, or have reason to know, of the latent defects in the roof
which existed at inception of this lease, and prior thereto.
31. Plaintiff improperly sought to have Defendant provide a roof that was better in
quality and durability than the roof which existed at inception of the lease.
32. Defendant acted at all times in good faith in the perfonnance of roof repairs and
in compliance with what it reasonably understood to be the applicable tenns of the lease.
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the subject roof, and the fact that Defendant's repairs to the
roof were appropriate and in the exercise of good faith at the
time the various repairs and/or replacements of portions of the
roof were made. To the contrary, the repairs to the roof were
not appropriate and the Defendant did not exercise good faith.
28. Denied. It is specifically denied that the entire high
roof did not require replacement in 1994. To the contrary, the
entire high roof did need replacement in 1994. By way of further
answer, the Defendant's roof consultant bid manual required that
the entire roof be replaced.
29. Denied. The averments of paragraph 29 are conclusions
of law to which no responsive pleading is required.
To the
extent a response is deemed required, it is specifically denied
that the high roof contained latent defects which existed prior
to Defendant's occupancy, the existence of which was known, or
reasonably should have been known to Plaintiff, but as to which
Plaintiff failed to notify Defendant at the time of inception of
the lease.
To the contrary, on July 1, 1989 Defendant was
assigned the lease of P. A. &S. Small Company and agreed to be
bound by all of the signor's obligations under the lease and
assignment. Moreover, Defendant agreed to accept the premises in
the condition existing at the commencement of the term, to take
SAlOIS, GUIDO,
SHUFF & good care of the premises during the term and, at its expense,
MASLAND
26W, HighS''''''1 make all repairs necessary to preserve and maintain the premises
Carlisle. PA
in good order and condition. (Section 603 of the lease).
2
SAlOIS, GUIDO,
SHUFF &
MASLAND
26 W, High SU<e1
Carli.le. PA
30. Denied. The averments of paragraph 30 are conclusions
of law to which no responsive pleading is required.
To the
extent a response is deemed required, it is specifically denied
that Defendant did not know, or have reason to know, of the
latent defects of the roof which existed at the inception of this
lease, and prior thereto. To the contrary, by its assignment,
Defendant accepted the premises as is.
31. Denied. The averments of paragraph 31 are conclusions
of law to which no responsive pleading is required.
To the
extent a response is deemed required, it is specifically denied
Plaintiff improperly sought to have Defendant provide a roof
which was better in quality and durability than the roof which
existed at inception of the lease. To the contrary, plaintiff
has continually sought Defendant to repair the roof as required
by the lease.
By way of further answer, Defendant's roof
consultant designed the specifications and required that the
entire roof be replaced.
32. Denied. The averments of paragraph 32 are conclusions
of law to which no responsive pleading is required.
To the
extent a response is deemed required, it is specifically denied
that Defendant acted at all times in good faith in the
performance of roof repairs and in compliance with what it
reasonably understood to be the applicable terms of the lease.
To the contrary, Defendant acted to delay necessary roof repairs
in order to stretch the cost over as many years as possible.
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33. Denied.
It is specifically denied that the subject
roof, after the 1994 repairs, did not leak and was structurally
sound. To the contrary, the subject roof after the 1994 repairs
did leak and was not structurally sound.
It is specifically
denied that the 1995 repairs were not necessary in 1994. To the
contrary, the roof needed repair in 1994 and, when not completed
as required, complete repair was needed in 1995.
It is
specifically denied that Defendant's deduction for the 1995
repairs against rental overage for 1995 was appropriate and
justifiable under the lease terms. To the contrary, all repairs
should have been completed in 1994 as originally planned.
34. Denied. The averments of paragraph 34 are conclusions
of law to which no responsive pleading is required.
To the
extent a response is deemed required, it is specifically denied
that Defendant's only duty under the lease is to provide and
maintain a roof that is as good in quality and durability as that
of the roof at the time of lease commencement. To the contrary,
the lease provision speaks for itself. By way of further answer,
Defendant is required to maintain the roof in good order and
condition. In addition, it is specifically denied that Plaintiff
seeks to impose upon Defendant a higher duty regarding roof
maintenance that is required by the lease terms.
To the
SAIDIS, GUIDO,
SHUFF & contrary, Plaintiff seeks to enforce the lease terms as written
MASLAND
26 w, Hiah SU<<I
Car1i5Je. PA
and intended. Finally, Defendant.s roof consultant designed the
roof specifications and required that the entire roof be
replaced.
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VERIFICATION
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I verify that the statements made in this Reply to New
Matter are true and correct. I understand that false statements
herein are made subject to the penalties of 18 Pa.C.S.A. S 4904
relating to unsworn falsification to authorities.
Dated:
William A. Burdick, KBD&A Partnership
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KBD&A PARTNERSHIP,
Plaintiff
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PENNSYLVANIA
v.
KARNS PRIME & FANCY
FOOD, LTD.,
NO. 97- /D3'/ CIVIL TERM
Defendant
CIVIL ACTION - LAW
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 are served,
by entering a written appearance personally or by attorney and
filing in writing with the court your defenses or objections to the
claims set forth against you. You are warned that if you fail to
do so, the case may proceed without you and a judgment may be
entered against you by the court without further notice for any
other claim or relief requested by the Plaintiff. You may lose
money or property or other rights important to you
YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO
NOT HAVE A LAWYER OR CANNOT AFFORD ONE, GO TO OR TELEPHONE THE
OFFICE SET FORTH BELOW TO FIND OUT WHERE YOU CAN GET LEGAL HELP.
Cumberland County Court Administrator
Cumberland County Courthouse
One Courthouse Square
4th Floor
Carlisle, PA 17013
(717) 240-6200
Date: 2- 7-7-'17
UFF & MASLAND
8?
$ ~---c'
cott D. Moore, Esquire
Supreme Ct. I.D. # 55694
26 West High Street
Carlisle, PA 17013
(717) 243-6222
Attorney for Plaintiff
prior to that date, to Defendant, and Defendant agreed to assume
and be bound by P.A. & S. Small Company's obligations under the
Lease and such amendments. A copy of the Assignment, the Lease
and the amendments to the Lease are attached hereto as Exhibit
"A" and incorporated by reference as though fully set forth
herein.
7. Under the Lease, Defendant is responsible for all
maintenance, repairs and improvements to the Premises and to all
tenant improvements thereto.
8. The Lease contains a provision which states in
pertinent part:
Sec. 603. Repairs and Alterations. Tenant agrees
to accept the premises in the condition existing at the
commencement of the term, to take good care of the
premises during the term and, at its expense, to make
all repairs necessary to preserve and maintain the
premises in good order and condition. . .
9. As early as June, 1991, Defendant was aware of the need
to replace the high roof on the building covered by the Lease.
10. Plaintiff demanded that the Defendant replace the roof
as required by Section 603 of the Lease.
11. In 1994, Defendant engaged a consultant to examine the
condition of the high roof, who recommended that the entire high
roof be replaced in 1994 due to its poor condition.
12. Defendant agreed to replace the entire high roof in
1994.
13. The Defendant entered into a 1994 contract with a
roofing contractor to replace the entire high roof in 1994.
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14. The materials for replacement of th~ entire high roof
in 1994 were delivered to the Premises by or on behalf of
Defendant.
15. Subsequently, unknown to Plaintiff, Defendant
unilaterally directed the roofing contractor to replace only one-
third of the high roof in 1994, and the unused roofing materials
were removed from the Premises.
16. Defendant made a further partial replacement of the
high roof in 1995, and did not make the final replacement of the
high roof until 1996.
17. By failing to replace the entire high roof in 1994,
Defendant breached the Lease.
18. Under the Lease, Plaintiff is entitled to additional
rent based on a formula set forth in Section 301 of the Lease, as
amended ("Overage Rent").
19. The Defendant is permitted to reduce annual Overage
Rent for maintenance, repairs and improvements to the Premises
and the tenant improvements thereto in the respective year for
which the Overage Rent is due.
20. Defendant has attempted to reduce the amount of 1995
Overage Rent paid by claiming that a portion of the high roof
replacement costs which were contracted for by Defendant in 1994
and which should have been completed by Defendant in 1994 should
be deducted from the 1995 Overage Rent.
21. In addition, Defendant has attempted to offset 1995
Overage Rent with expenses for maintenance, repairs and
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Llnglestown ST '760
ASSIGNMENT AND ASSUMPTION AGREEMENT
THIS AGREeMENT, made and entered Into this J if day of
:Tu L t
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1989, by and between P. A. & S. SMALL COMPANY, a Pennsylvania corporation, wIth
Its principal place of business at 1100 North Brentnel1, York, Pennsylvania
(hereinafter called "Assignor"), and KARN'S PRIME AND FANCY FOODS, LTD., a
Pennsylvania Limited Partnership with Its principal place of business at 675
Silver Springs Road, Mechanlcsburg, Pennsylvania 17055 (hereinafter called
"Assignee"),
WIT N E SSE T H:
WHEREAS, Assignor and Samuel Kushner, W~lllam A BurdIck, William Davis and
Luther N. Amos, Jr. doing business as KBD&A PARTNERSHIP, a Partnership ("Prime
Lessor") entered Into that certain Agreement of Lease dated December 24, 1964,
(hereinafter called the "Lease") recorded In Dauphin County In Book T Volume II
Page 543, covering certain premises located at 600 North ~Juntaln Road,
Llnglestown, Pennsylvania, as more particularly described In the Lease, a copy
of which Is attached hereto and made a part hereof as ExhIbit "A"; and
WHEREAS, Assignor now desires to assign all of Its rIght, title and Interest
to said Lease to Assignee upon the same tenns and conditIons as are set forth In
the Lease; and
WHEREAS, ASSignee has agreed to assume and be bound by all of Assignor's
obligations under the Lease and AssIgnment.
NOW, THEREFORE. In consideration of the foregoing and the mutual covenants
and agreements contained In this Agreement, the parties agree as follows:
1. Assignor does hereby sell, convey, transfer and assIgn unto said
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Exhibit A-I
//
Assignee all of Assignor's leasehold estate and right, title and Interest In and
to the Lease, Including any renewal or extended term or terms thereof subject to
the terms of the Lease.
2. The effective date of this Assignment ~hall be
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I , 1989
(the "Effective Date"). Assignor represents and warrants that as of the
Effective Date, the Lease will be In full force and effect and that all rental
payments and other charges due under the Lease will be current.
3. Assignee hereby accepts the foregoing assignment and assumes and agrees
to perform and observe all of Assignor's obligations and covenants to be per-
formed or observed under the Lease and this Assignment from and after the
Effective Date, Including, but not limited to, the payment of all rentals or
other charges accruing from and after the Effective Date. Further, Assignee
agrees to defend, 1ndemn1fy and hold Ass1gnor harmless with respect to any and
all cla1ms, 11abl11ty, costs or expenses arls1ng under the Lease.
4. Upon the Effective Date, all rental payments and other sums due under
the Lease shall be pa1d by Ass1gnee d1rectly to the Pr1me Landlord and Ass1gnor
shall have no 11ablllty therefore.
IN WITNESS WHEREOF, the part1es hereto have hereunto set their hands and
seals, the day and year f1rst above wr1tten.
"ASSIGNOR"
P. A. & S. SMALL COMPANY
A Pennsylvan1a Corporat10n
ATTEST:
By:
Jerry
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Ccr.~ai~ns 3.247
8.C:'e s 091 t~ata i: Lo.....e:' Pa._tcn ~o"'T'..sl::.P. ,!;a~;:l:in Countj. ?er~"1s..
and bei:g'tbl ::ortl:. Ea.:!tern portion of l.::.:::c 11011 c;.,"t:ed by
KED & A ?artr.ersC!p reoorced in Deed Eoc~ B Vo1~ 50 page ;~5.
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P,A, and S, SMAr J / KARN'S rFASR
R..ie r ~... . 15 years, December I, 1965 thmNovembcr 30, 1980
with Tbrec: 5 Year Options.
A~WMt I
(1) ExlcDaioaofBuio 15 YW'Lcaso4 months, thruMarcb 31,1981.
(2) &tabliabcd DOW 1DIlua1 reDIal ofS I 9,884 ($1657 per 1I1OIIlb) for
foar IIIOIdb ClX1eDslon and lbc 1brcc 5 Year Oplioos.
(3) Added DCW rental ($19,884) to Tenants cost items for calcu1atlq
ovmae.
Am~2
(1) C~ TCIlaDt& Audit and Gross Sales reporting date from 25th of
March to OIl or about Scptcmbcr I.
A............... 3
(1) CombiDodBui1diJlsf#2 (3,6000 sq. ll)withBuildiDs #1 (15,400 sq. ft.)
.
IIId ClClb1illlccl $32,016 II IlCW basic lII.Ilual reotal for 19,000 aq.ft.
area for 10 yean, tbrougb 1993 and for 2 succ:csaiYc reDeWIl periods
of 5 yean.
(2) Pa)'lllCllt of additional rent c:haoged fiom Mard12Sth to on or before
ScptaDber 1st. (Owngc)
A""'""'-4
(1) COIIeCIII Section 1001 as staled in AmendmcDt #3 to read "Section
1002".
(2) To comet TCIIlIDt's authoriutioD to expand facility from 18,200
sq. tl II stated in Section 1002, page 26 to be 28,800 sq.ft.
Am....A........ S
(1) Add 4800 sq. ft. outside Ilon8c area.
(2) Include lottery uIca in IDDual sroa sales rqJOI't and ADllual Overqc Paymcut
I
f: I h~/ !'6 I !'!; 1 "}IIJ~ng "1 ~ loJ(l;.j oj
IOl.-j~c;'?; L661-1O: 1-7
Exhibit A-2
BASIC T -"ME And AMRNnMENT n1ERETO
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Amendment 6
(1) Added 5576 sq. ft. Building area (Old Homing Hardware) and 2745 sq.ft.
outside m......f.... storage area. Established New Base Rent:
Monthly: $6,134.41 Annual: $73,612.92
Amendment 7
(1) Tenant paid $2,200 for eleven new parlcing spaces.
(2) Landlord autborizcd Tenant to add 2625 sq. ft. of additional
buildins areas (Tenant's Improvemem).
(3) Outside Tcnaut storagc area ~AII<:J'd to 4920 sq. ft.
^ merulrnent 8
(1) LaIId10rd assumed respoasibility for purchasing building's Fire
lIIId Extended Coverage InsIlfllllCC. Landlord's cost approximately 55%
ofTenanfs Cosl which was an allowable item of cost Tenant previously
ded.JCted from Amwal Overage Rent.
Amendment 9
(1) Extends lease term through May 31, 1998.
Amendment 10
(I) Mortgage BalloonccJ September I, 1993, New Mortgage, New Monthly Payment.
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E 161:L1'611'61 ){Jla~n8 v y, I-m:!:!
1'ldIS'~ L661-EI-;>
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AMENDMENT TO AGREEMENT OF LEASE
This Amendment Number One (I), made on the 30th day of
July 1980, by and between KBD&A partnership and P. A.. & S. Small
Company, amends and modifies the Agreement of Lease made the
22nd day of December 1964 by and between the above named Parties.
WITNESSETH
PURPOSE
1. Four month extension to the basic fifteen year Lease at
a monthly rental of $1,657.00.
(a) P. A. & S. Small Company letter of July l~, 1980
requested an extension for additional time required
to nail down a deal with a prospective subtenant.
KBD&A Partnership letter of July 2l, 1980 offered
P. A. & S. Small Company a four month extension to
the basic lease at a monthly rental of $1,657 per
month. P. A. & S. Small Company July 30, 1980 Mail-
gram and letter accepted the four month extension.
Pages 4, 5, 6, 7 and 8 of this Amendment are the
referenced letters incorporated herein.
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2. Establish $19,884.00 as the basic,annual rental for the
five (5) year renewal option(s) .
(a) P. A. '& S. SmaIl company requested ,and KBD&A Partner-
ship offered various rental periods and rates for the
extension of the basic fifteen year Lease. Page 8
of this Amendment is KBD&A Partnership's April 24, 1980
letter that offered $19,884.00 as the basic rental
for the five (5) year renewal optionCs).
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DESCRIPTION OF MODIFICATIONS
1. Section 201~. Add to the first sentence, fifth line,
after the word "years" and before the word "from":
"and four (4) calendar months."
Exhibit A-3
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2. SECTION 301 ~:
a. Delete: "term" from the first paragraph, fifth line,
and add, "Fifteen year basic lease period."
b. Add the following sentence to the end of the first
paragraph: "The basic rental for the four (4)
calendar month extension and all renewal options
shall be $1,657 per month.
c. Add to the first sentence of the second paragraph
after the word thereto and before Tenant: "for
the Fifteen years of the basic lease,".
d. Add the following after subpara~raph F, page 5:
"In addition thereto for the four (4) month extension,
December 1980 through March 1981, and for the five(5)
year renewal option(s), Tenant shall pay to Landlord
as additional rent 'for the premises ~ver and above the
aforesaid annual rental of $19,884, a sum calculated
on gross sales made in, upon or from said premises for
each annual period of said lease as follows:
One percent (1%) of the amount of said gross sales in
excess of the sum of:
(1) Said annual $19,884 rental.
(2) The real estate taxes payable to Landlord under
the terms of this Lease in the respective year,
(3) Costs incurred by Tenant pursuant to this Lease
in connection with maintenance and repair of the
demised premises and improvements thereto in
the respective year,
(4) Costs incurred by Tenant pursuant to this Lease
in connection with the mpintenance of all
insurance coverages required under the terms of
this Lease in the respective year.
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Except as provided herein, all terms and conditions of
Agreement of Lease made the 22nd day of December 1964 remain
unchangeu and in full force and effect.
This Amendment Number One (I) constitutes the complete and
full agreement of the parties.
Secretary
P. A. & S. Small Company
DATE 9r/ Cl,/l'tJ
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W. A. BURDICK
Senior Partner
KBD&A Partnership
(C;l)J> L:rD
WIT#€',ss
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P"qe 3 "f e
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Eslablished 1809
R A.&S.~ ;
r:::::J MALL Company
A SUBSIDIARY OF 5. M. FLICKIHGeR, CO.. IHC.
July 16, 1980
Mr. W. A. Burdick
KBD&A Partnership
1101 Valley Stream Lane
New Port Richey, Florida 33553
Re: Linglestown, Pa.
Leased Premises
Dear Mr. Burdick:
On July 30, 1980, pursuant to the terms of our lease, we are required
to advise you on whether we would like to exercise our first five-year
option in accordance with the rental terms stipulated in your letter
of April 24, 1980.
We are trying very hard to secure a subtenant for the premises who
would operate the store as an independent Super Thrift Market. Te
date, we have not solidified this deal. I would appreciate your
prompt advisal on whether you would entertain a 60-day extension for
the required 120 day notice stipulation in the lease agreement. On
our end, we will work as quickly as possible to nail down the deal
with our prospective subtenant.
Very truly yours,
I \', (Jill
~ro~\
William C. Stoll
Controller
WCS:pf
CERTIFIED MAIL 0979816
RETURN RECEIPT REQUESTED
cc: R. Comchoc
J. Flinchbaugh
C. Hibner
W. Olney
D. Reinbolt
Page 4 0 f e
General Offices
t100 Nortlt Sherman Streer. - DOl 589 - York.. Peflllsylv.llli.l 17405
PllulI.: 717,755.1976
"
..'
"
July H, 19UU
1101 Vall~y Btr~~m Lun~
New Vort nich~y, Fla. 3355]
Mr. William C. Stoll
.Controller
P. A. & S. Small Company
00>: 509
~ork, P~nna. 17405
l(c:: Linyluu tOI'lil, l'a.
Leusetl Premhies
Dl~ar ::'r. Stoll:
l'le ute in ro:=ceipt of your letter of July J G, l~flO, ~Ihl)rcill Ytlll
requl.:z ted that l<llO&A Partner!:h ip ell te r tain a (ill-<!ay C!xtcm; iOIl
ior the required 120 day notice utirulatiu~ tu exe:rciue YOllr
[ir!:t rive-year option in acc()rdallce l-lith ';l1l> i:elll,aj, tcrm:;
utipuluteu ill my Apr il 24, 19UO lutter.
:jhC{1I1d you not desire to excrcise your [ir:;t 5-ye"r oi>tion,
we: Lelimve a reductioll of GO days for uu tu uhtain D new tUIlDllt
Houlci II0t be: in our bu!:t interest / therefor!:, the GO-d.,y
extenuion for the 120 day notice sti~ulutiun in the leDUl.:
ugruDment cannot be approved.
In order to assist you in achiC!ving yuur objective to secure"
subtenallt to oper;1te the store as all indel""lldellt Super 'rhr i[t
l,larke:t, lie offer the following lease change:; for your conuid,:r-
.:It!on .:.n<l acceptallce by July 3l, 1900:
,
u. Dao:ic lL",se to Llll extended [our 1;"lulIl!;;!r munth:; _
Uc~ulII~e:r 19UO through March 1901.
.
.
b. 'l'he rental for the period cOllllnencing llecember I, 19uU
shull be $1,G57 per' month.
\\'ith the exception of the above chang::!!:, all terms and conditions
of thl.: e>:isting lea'se shall remain in effect dur jng the four lliunth
lJ"uic le"s~ cxtens ion and uur ing allY option,;.
Sincerely,
CU: I\OLe,\ Partners
...- \ \ \1' n. . \: Q f\
(,d\:::\J ~\-V~.... <.;'(.v-y\."
\L fl. IJUlmrCI(
Sen lor P,H tner
KIJD&^ Partner~hir
Page 5 of 8
\,j;\U/ll;
Established J809
A IUBI/DIARY OF I. M. FLICKIHorR. co.. IHC.
July 30, 1980
Mr. W. A. Burdick
KBD&A Partnership
1101 Valley Stream Lane
New Port Richey, Florida 33553
Re: Lease dated May 7, 1965
Linglestown, Pa.
Dear Mr. Burdick:
Your proposal to extend the prime term of the above-referenced lease
as outlined in your letter dated July 21, 1980 (a copy of which is
attached) is acceptable to us upon the express understanding that we
can extend the term of the lease if we elect to exercise our first
five-year option, and that we can do so by giving you written notice
on November 30, 1980 or 120 days prior to the expiration of the
extended term ef the lease.
Very truly yours,
() /J d. .', /: //
!;LLdI().~/1., 0- &,,(o&t{cr~C./
Rudolpn A. Comchoc
Vice President-General Manager
Enclosure
cc: W. Olney
W. Stoll
CERTIFIED MAIL 0979818
RETURN RECEIPT REQUESTED
Page 7 of S-
General Offices
1100 North Sherman Street, - Bo. 589 - York, PennsylviJ'lIa r7J05
Pho"e: 717,755-1976
Al-lEUDIIJ::NT TO AGRl::El-illNT OF LEASE
This Amendment Number TWO (2), m4de on the 21et day of
Meeoh 19U1, by'and between KIlD'^ partnecship anll P. A. , S. Small
Company, amends and l1lOdifies the ^yruel~ent of Lease made the
22nd day of Deoember 1964 by and bstwesn ths abovs named Parties.
HlTIIESSE'fll
.- -
PUllPOSE
1. TO avoid P. A. , S. Small Company incurring a larger
invoice from 'l'ouche ROSS for retrospective audit work durillY
P. A. , 5. Small Company's current ysar audit and to change the
Audit Statement due date required by Section 301 of Lease.
a. P. A. , S. Small Company letter of Maroh 6, 1901
acknowledyed its 5eotion 301 Lease responsibility for
furnishing a Certified Public Accountant statement
ahowing total groas saleH for the precediny calendar
years by March 25, 19a1 but requestell the requirement
be waived because given the disparity between the base
sales level and the actual sales level, l&ttle would
be accomplished beyond P. ^. , S. 5mal,l.c;:S',"pany incurring
a larger invoice for retrospective audit work during
the ourrent year audit. . KBD'A Partnership letter of
March 20, 1931 advieed P. A. , S. Small Company that
its Maroh 6, 1981 request was acceptable. Pages 3 and
4 of thia Amendment are the referenced letters incorpor-
ated herein.
.
.
. lJl::SCRIPTION OF ~IODIFICJ\TIONS
1. 5ection 301~. Second subparu9raph of'parayraph (J),
PAge 7.
a. Delete the following I
I..'.....:' ,.Tenant ahall on the twenty-fifth .{2li.thl day of March"
b. Substitute the followin91
"Tenant ahall on or ebout September 1st"
Page 1 of 4
R A.& S.r:::J
Jt:::.J MALL
Company
.
A SUSS/DIARY OF S. M. FUCKIHCCR. CO.. IHC,
Harch 6, 1981
Hr. William A. Burdick
K.B.D.&A. Partnership
1101 Vallp.y Stream Lane
Ne~ Port Richey, Florida 33553
Subject: Lease 0760 - Linglesto~n, Pa.
Request for CPA sales certifications
Dear Hr. Burdick:
Esfabllshed J809
We ~ill be happy to accommodate your March 2, 1981 request for Certified
Public Accountant statements sho~ing gross sales for the preceding year and
for all future years. "
With regard ,to your request for prior year certifications, I ask thot you
revie~ the following table of costs that are to be used in determining the
base sales level over ~hich percentage rentals would opply. My point will
be that, given the disparity between the base sales level and our actual
sales level, little w1l1 be accomplished beyond Super Thrift Markets' incurring
a larger invoice from Touche Ross for retrospective audit work during our
current year'audit.
Cost Description .ill! .!W..
Hortgage Payments 13 ,164 13,164
Rents 6,000 6,000
Snow Removal 724 568
R.E. Tax 1,311 1,535
School Tax 2,953 3,028
Parking Lot Repairs 0 0
Rs-roofing Expense 0 15,876
Insurance Costs 11,240 13 , 000
Total Costs (Sec. 301) 35,392 53,171
1100 Ho,lh Sh.,man 51'.."
Bo. 589
Yo,/(. P.nn.yl.ania 170WS
~ <.. v-.. ~.-{ '\-
Phon.: 7I7-7SS-1976
..
!2!!.Q
13 ,164
6,000
1,682
3,215
14,787
o
13,250
S2,098
General Offices
"
Letter to William A. Burdick
-2-
William C. Stoll
Description
.!.ill.
35,392
68,062
1979
53 ,171
102,252
1980
fotal Costs (Sec.301)
7 .01 (rate) ~ 52 wks.
.
52,098
100,188 Avg. weekly
sales necessary
before percen-
tage rentals appl:
Actual Avg Wkly Sales
33,807
37,664
40,893 See Exhibit A
D iff erence
34.255
64,588
59,295
The difference row quantifies the dollar amount by which the average weekly
sales would have to have grown before our liability for percentage rentals
would have become applicable for the calendar years cited in the foregoing table.
We do recognize thst it is our responsibility to provide Certified Public
Accountant statements pUISuant to the terms of our lease, and we will do as you
request if you feel that it is absolutely necessary; however, we ask that you
reconsider'your request tor a 1978 and 1979 certification letter, in light of
this presentation.
As a footnote to this issue, please be advised that our accountants, Touche
Ross, are headquartered in Buffalo, New York. They will not be in town until
July and August of this year to sudit our accounts through our fiscal year end,
namely July 25, 1981. Would you be agreeable to receiving their annual
certifications on or about September 1 of each year? Please so advise me.
Sincerely yours,
~~
Controller
WCS:pf
Attachments
cc: R. A. Comchoc
W. C. Hamlin
C. J. Hibner
W. G. Olney
D. J. Reinbolt
..
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.
March 20, 1961
IIOl Valley Stream Lane
New Port Richey, Fla. J355J
Mr. William C. Stoll
Controller
~. A. & S. Small & Company
1100 9. Sherman Street
York, Penna.
Re: Lease 1760, Linglestown, Pa.
CPA Sales Certifications
Dear Mr. Stoll:
!
Reference your March 6, 1961 letter requesting that the Tenant
Certified Public Accountant's statement due date required by
Section 301 ~f our Lease be changed from March 25 to September
to coincide with your scheduled fiscal year audit. We do not
want you to incur a larger invoice from Touche Ross for retro-
spective audit work during your current year audits. Enclosed
you will f~nd the original and two (2) copies of Amendment
Number Two (2) that incorporates the change you requested.
Please sign, retain one for your records, and return the original
and one copy by return mail.
During my review of your store costs included in your March 6, 1981
letter, one item of cost - your insurance costs, appear to be
greatly out of line. Based on the annual per thousand rate of
S7.67 for Fire and Extended Coverage for our adjoining stores and
S260 for liability, your insurance cost should b. approximately
S2,6661 S2,608 for S340,000 fire insurance and extended coverage
and S260 for the Sl,000,000/S500,000 liability. It appears that
the insurance cost of S13,250 for 1960 listed in your March 6, 1ge1
letter is for coverage over and above that required by Section
303, Property Insurance and Section 304, Liability Insurance,
and hence is not a valid insurance cost under our Lease.
Would you please review your insurance coverage and advise what
your insurance cost should have been for the lease insurance
coverage required by Section 303 and Section 304 and adjust your
cost records accordingly.
Sincerely,
Enclosure
Lease Amendment #2
(triplicate)
~~
W. A. BURDICK
Senior Partner,
KBD&A Partnership
~.. \___ '\- '-\ l\
.
!
. .
AMENDMENT TO AGREEMENT OF LEASE
This Amendment Number Three (3), made on the 1st day of
June 1983, by and between KBD&A Partnership and P. A. & S. Small
Company, amends and modifies the Agreement of Lease made the
22nd day of December 1964 with two Amendments by and between
the above named Parties.
WITNESSETH
PURPOSE
1. To combine Building D2, (3,600 square feet), with
Building II (15,400 square feet), and establish $32,016 as the
basic annual rental for the 19,000 square foot area for the
ten year period from June 1, 1983 through' May 31, 1993 and for
two (2) successive renewal periods of five (5) years each there-
after. Remove the undated Schedule A attached and made a part
of Agreement of Lease made the 22nd day of December 1964 and
substitute Schedule A dated April 29, 1983.
2. Amendment Number Two (2), at the request of the Tenant,
changed the submission of its audit report required by Section
301 from March 25th to September 1st. The payment of additional
rent as required by Section 301 was left unchanged at March 25th
and hence, does not coincide with the date for submission of
the Tenant's audit report. Because it was the intent of both
parties that the submission of the Tenant's certified audit
statement and the payment of additional rent required by Section
301 shall occur on the same date, the date of payment of additional
rent required must be changed from March 25th to on or before
September 1st.
Page I of 5 ~
DESCRIPTION OF MODIFICATION
1. Section 101. The Leased Premiseo.
a. Add to first sentence, first line, after the word
"premises" and before the word "hereby":
"Building II and Duilding 12,"
b. Add to third line fOllowing "Schedule A,":
"dated April 29, 1983,"
2. Section 201. Term - Possession.
Delete paragraphs 1 and 2 and substitute the following:
"Tenant shall continue to occupy Building II as described
in Schedule A hereof through May 31, 1983. Building 12 as des-
cribed in Schedule A hereof shall be combined with Building II
June 1, 1983. The term of the lease for the combined building
area of 19,000 square feet shall be ten (10) years from June 1, 1983
through May 31, 1993."
3. Sedtion 301. Rent.
Delete first and second paragraph, Section 301, page 4
and 5 in their entirety and 'substitute the following:
"Tenant shall continue to pay to Landlord through
May 31, 19B3 a monthly rental of Sixteen Hundred and Fifty Seven
Dollars ($1,657.00) for Building 1. Tenant shall pay to Landlord
commencing June 1, 1983 through May 31, 1993 for the combined area
of Building II and Building 12 and any renewal(s) an annual rental
of Thirty Two Thousand and Sixteen Dollars ($32,016) payable in
monthly installments of Two Thousand Six Hundred and Sixty Eight
Dollars ($2,668.00), in advance, commencing on June I, 1983, and
continuing monthly throughout the term of the lease.
Page 2 of 5
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I
.
In addition thereto, Tenant shall pay to Landlord as
additional rent for the premises over and above the aforesaid
,.
annual rental of Thirty Two Thousand and Sixteen Dollars ($32,016)
a sum calculated on gross sales made in, upon or from said premises
for each annual period of said lease as follows:
One percent (ll) of the amount of said gross sales in
excess of the Bum of:
A. Said annual Thirty Two Thousand and Sixteen Dollars
($32,016.00) ,
B. The real estate taxes payable to Landlord under the
terms of this lease in the respective year,
C. Costs incurred by Tenant pursuant to this lease in
connection with maintenance and repair of the demised
premises and improvements thereto in the respective
year,
D. Costs incurred by Tenant pursuant to this lease in
connection with the maintenance of all insurance
coverages required under the terms of this lease in
the respective year,
E. The amount of interest and principal payable annually
by Tenant as may be agreed to between Landlord and. '
Tenant under the provisions of Section 1001 hereof.
The method and manner of payment by Tenant to Landlord of such
additional rental based upon said gross sales shall be as follows:
During the term of this lease, Tenant shall pay to Landlord
such additional rent on or before September 1st in each year for
the preceding calendar year. The additional rent on gross sales
for the fractional part, if any, of a yearly period as occurs at
the beginning and expiration of this lease shall be. computed on
a pro rata basis, and any additional rent as to such fractional
part of said year, over and above said minimum rent, shall be
Page 3 of 5 ~
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AMENDMENT TO AGREEMENT OF LEASE
This Amendment Number Four (4), made on the 2nd day of
June 1983, by and between KBD&A Partnership and P. A. & S. Small
Company, amends and modifies the Agreement of Lease made the
22nd day of December 1964 with three Amendments by and between
the above named Parties.
WITNESSETH
PURPOSE
1. Paragraph 3 E., Page 3'of Amendment 3, dated June 1, 1983
was to grant the Tenant the right to expand the size of building
improvements, however, the wrong Section was referenced. Section
1001 should read "Section 1002. Expansion of Facilities."
2. First sentence, page 26 of Basic Lease restricts total
area of building improvements to 18,200 square feet. The 18,200
square feet restriction should have been changed to 23,800 square
'feetwhen Building 2 was added to the Basic Lease by Amendment 3,
dated June 1, 1983. The 18,200 restriction must be changed to
23,800 so that the Tenant shall have the right to expand the size
of Building 1 and Building 2.
3. Schedule A must be changed to outline store expansion
area of an additional 4,800 square feet.
DESCRIPTION OF MODIFICATION
1. Amendment 3, dated June 1, 1983, Page 3, Paragraph 3, E.:
a. Last sentence, delete "Section 1001" and substitute
"Section 1002. Expansion of Facilities."
Page I of 3
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..
AMENDMENT TO AGREEMENT OF LEASE
, ~~
This Amendment Number Five (5), made on this~q-- day of
~~'~~~b~~, 1987, by and between KBD&A Partnership and P. A. & S
Small Company, amends and modifies the Agreement of Lease made
the 22nd day of December, 1964, with four Amendments by and
between the above-named parties.
WITNESSETH:
PURPOSE
This Amendment to the Lease Agreement is being entered into
as full settlement of the outstanding dispute between the Land-
lord, the Tenant and P. A. & S. Small Company relating to whether
the gross Lottery sales from the sale of Lottery tickets by Karns
at the leased premises are to be included in gross sales for pur-
poses of computing the percentage rent under Section 301 of the
Lease Agreement. Upon execution of this Agreement, the action
now pending in the Court of Common Pleas of Dauphin County to No.
2974 S 1985 will be discontinued with prejudice as to both
parties. As stated in paragraph 3 hereof, only gross Lottery
sales, if any, generated by Karns at the leased premises on or
after January 1, 1987, will be included in the gross sales.
Gross Lottery sales arising before that date are excluded from
the definition of gross sales under the Lease.
The Tenant requested and the ,Landlord agreed to add 4800
square feet of macadam outside storage area to the leased
building premises. The 4800-square foot area shall be for out-
side storage and location of:
1. Relocation by the Tenant of Landlord's roof HVAC
units.
2. Tenant's portable chill box(es) and roof to cover
the box(es).
3. Tenant's refrigerator and freezer compressor
unites) and a structure to house same.
4. Tenant's returnable container and recoverable
storage areas.
The total additional rent the Tenant shall pay to the Land-
lord for the 4800 square feet outside storage area during the
lease and options thereto shall be determined by the inclusion of
gross Lottery sales in gross sales under Section 301 of the Lease
beginning January 1, 1987. It is understood and agreed that only
KARNS PRIME & FANCY FOOD, LTD.
Date:
.A j ,
~ .,./,,4... -r. ( s~i/---L./
secruary
57 ~, 1987
By /~dc
D. Scott Karns ~
Chief Executive Officer
fr~d
- 4 -
a. Tenant sha II continue to occupy Building H,
and Building .2 together with the 4,800 square
feet outside storage area.
b. Tenant sha 11 become the Tenant of Building .3,
5,576 square foot building and the 2,745 square
foot macadam area the first calendar day following
"
Hornung Home Center scheduled departure from
the premises on or before October 2, 1989, in
~
no event lat~ than October 6, 1989. Tenant
"
shall pay to Landlord a pro rata share of th
monthly base rent set forth in Section 301.I.b.
c. The term of the lease for the combined building
~
area of 2~, 576 square feet and combined macadam
outside storage area of 7,545 square feet is
ten (10) years from June 1, 1983
through May
31, 1993".
3. Section 301. Rent.
Delete in their entirety the following:
1. The two Section 301, paragraphs added by Amendment
Three dated lst day of June 1983, beginning with
"Tenant" and ending with "lease".
2. The addition of section 301 added by Amendment
5, dated 29th day of September 1987, beginning
with, "The" and ending with "1987".
3. Delete Paragraph 4, Section 301, original leases
,EV & BESS. P,C.
f'O.~[YS AT lAW
.... 'Wu...r[. lA!'$[
'.0 111'11'
lUIl"C." "'"
-3-
said lease as follows:
One percent (l %) of the amount of said gross sales
in excess of:
. a. Said annual Thirty Two Thousand and Sixteen Dollars
($32,016.00).
b. The real estate taxes payable to Landlord under
,
the terms of this Lease in the respective year.
c. Costs incurred by Tenant pursuant to this Lease
,
in connection with maintenance and repair of the
demised premises and improvements thereto in the
respective year.
d. Costs incurred by Tenant pursuant to this Lease
in connection with the maintenance of all insurance
cov~rages required under the terms of this Lease
in the resepective year.
e. The amount of interest and principal payable annually
by Tenant as may be agreed to between Landlord
and Tenant under the provisions of Section 1001
hereof.
The term "gross sales" as herein used, shall be held
to include the sales price of all merchandise of every
sort whatsoever sold, and the charges for all services
performed for which charge is made by Tenant or by other
person,
persons or corporation selling merchandise or
performing service of any sort in, upon and from any pa rt
\EY & BESS. P.C.
TU''Il;r.'' o\T LAW
,U \4 l'''U U' t "..[
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and extended."
6. Section 607. Seniority of Lease and Tenants Financinq
Delete Section 607, original Lease in its entirety
and add the following:
,
,
"Section 607. Landlords Financinq and Tenants Responsibility
1. The Landlord mortgaged the leased premises October
1,1988 to combine three (3) old mortgages with the cost
of upgrading the leased premises.
Building 13 old mortgage
for building and improvements, together with its upgrading
cost totaled $168,972.00.
The October 1, 1988 mortgage
balloon date is September 1, 1993.
The remaining balance
of Building 13 and improvements thereto pro rata share
of the total mortgage shall be $138,649.50; $137,532.05
principal ~nd $1,117.45 interest.
Should the Landlord
be required by Commonwealth National Bank or any other
financial organization to refinance the remaining balance
of the S137,532.05 mortgage for Building 13 and improvements,
the
Tenant
shall
pay
refinancing
charges
(Placement
Fee/Points) not to exceed 2% of the $137,532.05, $2,750.64
together with any decrease or increase in the monthly
mortgage payment resulting from the S137,532.05 mortgage
refinancing. Upon the Tenant's renewa 1, exercise of
;Y & BESS. P.C.
rUIl:o.r.u AT LAW
... loIl'\"'. I ...[
,n. I.n IU
1,"IL'lll;,'''' non
option(s), should the Landlord's mortgagor require the
Landlord to refinance the remaining balance of Building
13 pro rata share of the October 1, 1993 mortgage of
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-.......................................
CUSTOM DA~A ~ERVXCES
.......................-................
.,
P. 0, BOX ~34~ HUDSO~. FL. 34674
913-8t8-4063
AMORT! ZATIOtl R.EPORT FO;;:
AMOUNT OF MORTGAGE
INTEREST RATE
MmlTHLY PA,(MEI~T
FIRST FAYMENT DUE
I:6Dl.A / I('ARI'lS
168.972.00
9.750%
1.7S0.34
10/01/1968
"
,
INTEREST PRINCIPAL BALANCE
PAY'T 1 DUE 10/ 1996 1.372.90 417.44 168.554.56
PAY'T 2 DUE 11/ 1988 1.369.51 420,83 168.133.72
PAY'T 3 DUE 12/ .1988 1.366.09 424.25 167.709.47
. THIS YEARS TOTALS iI 4.109.49 1.262.53 167.709.47
. TOTAL PAID TO oA.TE . 4.108.49 1.262.53 167.709.47
INTEREST PRINCIPAL BALAtlCE
PAY'T 4 DUE 1/ 1999 1. :;62.64 427.70 167.281.77
PAY'T 5 DUE 2/ 1989 1. S5S.1 G 431.18 166.950.59
PAY'T 6 DUE 3/ 1989 1.355.G6 434.68 166.415.91
PAY'T 7 DUE 4/ 1989 1.352.13 438.21 165.977.70
PAY'T 8 DUE 5/ 1989 1.348.~7 441.77 165.~35.S3
PAY'T 9 DUE 6/ 1989 1.344.99 445.36 165.090.57
PAY'T 10 DUE 7/ 19t9 1.341 .36 448.98 164 .G41 .~9
PAY'T 11 DUE 8/ 1989 1.337.71 452.63 164.198.96
FAY'T 12 D'JE 9/ 1989 1.334.04 4'56,30 163,73Z,66
PAY'T 13 DUE 10/ 1989 1.330.33 4EO,Ol 163.272.65
PAY'T 14 DUE 11/ 1989 1.32G.5S 4G3.75 162.808.90
PAY'T 15 OUE 12/ 1989 1.322,82 4t7.52 162.341.38
. THIS YEARS TOTALS . lG.116,OO :>,368,09 162.341.38
. TOT AL PAID TO DATE . 20.224.48 t.630,62 162.341.36
Sc.\\ f. t\VI....'C. .. '0" 'Ur.....H.'U ~'" '{ \~,
Pag!' 8 of 10 \ '\ 'au" f'oN\'" N '" \.l\~\.1\ S\ y.. ,,~
.. . ' . ,
INTEREST - PR I HC I PAL BALAtlC E.
PAylT 16 DUE 1/ 1990 1 .3'19.02 471 .32 161.870.06
PAY'T 17 DUE Z/ 1990 1 .315.19 47:1.15 161.394.92
PAY'T 18 DUE 3/ 1990 1 t 31 t .33 479.01 160,91:1.91
PAY'T 19 DUE 41 1990 1.307.44 462.90 160,433,01
PA'(' T 20 DUE :II 1990 1.303,S2 466.82 lS9,946.19
PAY'T 21 DUE 61 1990 1.299.S6 490,76 IS9.4SS,41
PAY'T 22 DUE 7/, 1990 1.29S,S9 494.76 lSe.960.65
PAY'T 23 DUE 8/ 1990 1.291.S6 499.78 156.461.fc6
PAY'T 24 DUE 9/ 1990 1.287.S0 SOz.e4 157.5S9.03
PAY'T 25 DUE 10/ 1990 1.2e-:3.42 506.92 157.4::2.10
PAY'T 26 DUE 11/ 1990 1.279.30 511 . D4 156,941.06
PAY'T 27 DUE 1 Z/ 1990 1.275.15 515.15 156,42S.'37
. THIS YEARS TOT AL S . 15.S69.60 S. 91 5.51 156,42S.87
, , . TOTAL PAID TO DATE . S5.7~3.05 12.546.13 156,425.67
INTEREST PRINCIPAL BALANCE
PAY'T 26 DUE 11 1991 i .270.96 519.39 155,906.49
PAY'T 29 DUE 2/ 1991 1.266.74 523.60 155.3B2.B9
PAY'T 30 DUE 3/ 1991 1.262.45 527.B5 154.8S5.03
PAY'T 31 DUE 4/ 1991 1.25B.20 532.14 ' 154.322.B9
PAY'T 32 DUE 5/ 1991 1.253.67 536.47 153.7B6.42
PA'('T 33 DUE 6/ 1991 1.249.51 540.B3 153.245.60
PAY'T 34 DUE 7/ 1991 1,245.12 545.22 152.700.36
PAY'T 35 DUE B/ 1991 1.240.69 549.65 152.150.73
PAY'T 36 DUE 9/ 1991 1.236.22 554.12 151.596.61
PAY'T 37 DUE 10/ 1991 1.231.72 5S8.62 151.03B.00
PAY'T 3B DUE 11/ 1991 1.227.18 563.16 150.474.64
PAY'T 39 DUE 12/ 1991 1.222.61 567.73 H9.907.11
. THIS YEARS TOTALS . 14.965.30 6.51B.76 H9.907.11
. TOTAL PAID TO DATE . 50,75B.37 19.064.B9 149.907.11
INTEREST PRINCIPAL BALANCE
PAY'T 40 DUE 11 1992 l,:nB,OO 572.34 149.334.76
PAY'T 41 DUE 2/ 1992 1.213.34 577.00 14B.757.77
PAY'T 42 DUE 31 1992 1.20B.66 561. GB 148.176.09
PAY'T 43 DUE 41 1992 1.203.93 5EG.41 147,589.67
PAY'T 44 DUE 5/ 1992 1 ,199.17 591.17 146.998.50
PAY'T 4S DUE 6/ 1992 1,194.36 595.96 146.402.52
PAY'T 46 DUE 7/ 1992 1,lB9.52 GOO.B2 14S.B01.70
PAY'T 47 DUE BI 1992 1 ,1 B4, 64 6QS.70 145.196.00
PAY'T 48 DUE 9/ 1992 1.179.72 610.62 144.58S.38
PAY'T 49 DUE 10/ 1992 1.174.76 61S.5a 143.969.80
PAY'T SO DUE 11/ 1992 1.169.75 620.59 143.349.21
PAY'T 51 DUE 12/. 1992 1 ,164.71 G2:1.G3 142.723.:18
. THIS YEARS TOTALS . 14.300.60 7.183. :12 142.74:3.5B
. TOTAL PAID TO OATE . GS.OSe,9~ 26.24B.42 142.723.:18
Page 9 of 10
, " . ,
1 tITEI~ES,!, ' PR 1 tIC 1 PAL 8ALAtlCe;
PAY'.T 52 CUE 11 1993 1. 1 ~9., 63, 630.71 1~2.09Z.87
PAY'T 53 CUE ZI 1993 1.15~.50 635.84 141.4:57.0'4 .,
PAY'T 5~ CUE 31 1993 1.1~9.34 641. 00 140.816.03
PAY'T 55 CUE ~I 1993 1.144.1::: 646.21 140.169.82
PAY'T 5G CUE 51 1993 1.138.0e 651 .46 139.516.36
PAY'T 57 CUE 61 1993 1.133.59 656.7'5 138.861.61
PAY'T 58 CUE 71 199~ 1.128.25 662.09 1 38 , 1 99.5.2
PAY'T 59 CUE 8,1. 1993 1.122.87 667.47 137.532.05
PAY'T 60 CUE , 91 1993
15 YOUR BALLOON PA YMEtlT OF 1.117.45 137.532.05 138.649.50
. THIS YEARS TOTALS . 10.248.60 142.723.58 0.00
. THE F UIAL TOTALS ARE . 75.307.'57 168.972.00 0.00
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Page 10 of 10
~~~,r~
AMENDMENT TO AGREEMENT OF LEASE
This Amendment Number Eight (8), made on the 12th day of
March ,1991, by and between KBD&A Partnership and KBrns' Prime and
Fancy Food, Ltd., Bmends and modifies the Agreement of Lease made the 22nd
day of December 1964 with seven (7) Amendments by and between KBD&A Part-
nership and P.A. & S. Small Company.
WITNESSETII
PURPOSE:
Delete the responsibility of the Tensnt to obtain fire insurance
with extended coversge on the demised premises.
DESCRIPTION OF MODIFICATION
1. Effective April 9. 1991
Delete, Sec. #303. Property Insurance,
Lease Agreement made 22nd day of
December 1964 between KBD&A Partnership
and P.A. & S. Small Company.
Page 1 of 2
Except as provided herein, all terms and conditions of Agree-
ment of Leaae made the 22nd of December 1964 and seven (7) Amendments
thereto remain unchanged and in full force and effect.
This Amendment eight (8) constitutes the complete and full
agreement of the parties.
Sols
~".
~!s LJp.. B
Scott Korns
Vice President - Manager
Korns' Prime & Fancy Food, Ltd.
W.A. Burdick
Senior PBrtner
KBD&A Partnership
Dote "3 ( I S I "( I
Dote March 12. 1991
s/s ~~~. ~~
Secretary
Karns' Prime & Fancy Food, Ltd.
Page 2 of 2
.::--13- 1997 2, 53PI.l
FRO!,' 'Ii A BU"llIO. 1 'JJ 19<172913
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January 27, 1993
Cot)lOfWt. om.
'llSs.tv.t~RoId
"''''C''4ncabu''O. PA 11066
Dnon. {7t717......n
'a. (717)715-"41
.
Mr, William Burdick
2500 North East 48th Lane .303
Fort Lauderdale, Florida 33308
Dear Mr, Burdick.
Store No. 1
U l~ AOId
... Cumben.nd, PA 17070
P"o~ (71T]71C-ZS30
Please accept this letter as our option to renew out'
original lease dated May 7, 1965, Linglestown, Pa.
110,. No. a
600 N N(kjnllln Road
l"'Oj..towl'l.PA '7'12
r"o"_17In,4".'31
Our present lease is set
Food, Ltd, is exerc1sing
options.
to expire Mav 31. 1993, Karns
the first of the two 5 year
I would 1 ike to keep open communicat ions on insurancoO
expenses, building repairs and lease terms,
Very truly yours,
!ION No. ~
.. ~ ~ 511....' 5gt\nQ Rotd
"-~""IC'bl.lf9, PA 170U
r.,~,,~ :1171168'35"
Store No.4
';'00 ""'k,, S,'..,
WUI Snore PIa,.
~ ...,.uyn.. PA 17043
~'(""("n7e30Ia'
KARNS PRIME & FAN~Y FOOD. LTD,
j ~ K ~-?,/~, ,,):-
D,SCOTT KARNS
CHIEF EXECUTIVE OFFICER
DSK I Jbs
Slorw No.5
10' 525thSl,",
I(Ior,eVIIl'V.
".'''Ib>'''''i.P417'04
. ...'....11In~]:H'el
SIOf. No. .
41] '01"" AOId
"..,,',"'.1 Sp,If'lO' Plau
"f :Jpm'91 PA 17007
'''''rl717t2S''''''U
r!lIrOe'3U4
Page 3 of 3
.~ORII~nON SCHEDULE
PRINCIPAL
STATED INTEREST
DAYS IN \'EAR
TERM
PAYMENT
S62,~O,26
/'\\'C.\H"'"'I "'W\~\..lIH^,'i.Ni
n~(\O\ \,)1lI~t\') , O~~. \'1.'\'
~~~'"-l~
.
916,118
942,21
GOa,Q2
1l31.ll5
026,71
632.37
01S,T.1
1101,12
IlOS,OI
670,&7
694,14
1lO6,7!j
~,62
677.ll6
044,02
_42
660,63
772,CS
646,1l6
618,Ql
637,35
604,74
625,!l6
6111,70
767.54
6l17,&7
115,62
795,40
789,41
7rn,~
116,Q2
745.55
784,00
733:0
751.21
744,llC
714.00
731.79
70l,llII
718.56
711.98
ClSO.61
6116.31
eGll.2ll
llB4,II3
ClSS,D3
670,76
683.113
635,&7
849.69
621.llII
635,34
626,17
560,65
613,26
566,311
51l3.42
571.93
S63.3l
575,65
4S,~2,03
1137,532,05 After 60
8,o00ooo00 PERCENT
360
120 MCtffiiS
11,676,73
o.\YMENT PA''MENT DAYS
'lUMBER Due PAYMENT INTEREST PRINCIPAL llALANCE
DATE
750,llS 136,n2,20
734,52 136.OO7.llB
760,61 135,2117.67
744.110 134,522.Dll
7SO.02 153,nU7
844,38 132,928,81
761,00 132,1&7.01
705,61 131,372.00
111,72 lSO,600.2lI
aoo,Ql 1211,194.22
762.Sll 1211,011.83
7B7.118 128,223.115
621,01 127,401.74.
7D9,rn 12t1,602.1I7
632.71 125,m,Il6'
BIO.31. 124.ll6i,&5c;:-'- _
615,llO 124,1""',75 ~ I~~~
G04.2ll 1211,23DA7
627,75 122.411,72
66O,1l5 121.551.07
B39.3S 12O,711.6ll
67l.llll 1111,lI3O,70
B51,17 118.llll8.53
657,00 116,131.50
llBO,lO 117,24231
660,Ql I UI,373.25 .
000,91 115,472.34
661.25 114,1ll1,l)Q
667,32" 113,703:71 .- \ '\"c.
ll6D.24 112.754.53
900,11 111,11"4.42
931.17 110,903.25
912.78 I011.llllO.52
043,411 1011,047.oe
925,52 loe,121.54
931,69 107,lllD.65
982,13 loe,2Z7,52
1144,04 IOS,IlIl2.58
974,llS 104,S07.73
f1~4JLW~:r '" a '"
llll4,n 1~,7lI .....' ,
1.016.02 101.367.ll7
076,42 100,llllll,45
1,007,47 Dll.3S1.oe
992,10 911.389.68
1,020.60 07,369.08
1.005.97 lICI.3ll3.11
1,012.00 95.350,21
1 ,04 t.oe 04,3Oll, 15
1,027,04 93,2112.11
1,054.85 02,227,26
1,04 qq--.lll J WI.
',',043.50 90,137.31 't' \<<\., '"
1.115.llB 6ll,021.43
1,063.47 67,057,ge
1.090.34 6e,e&7,62
1,076.31 ClS,7llll..11
1,104,60 84,6llC.51
1,093,35 B3,501. 1 II
l.100.611 62.41lO,28
~ ,.....!.
N
t..
".l; " ~..
ta-UG- \<<\~t'
55,041.77
E 16<':Lt'611'61 ~::1I0<ln8 '<j M 1,0<1.:1
~ld9S:C: L661-E 1-2:
1 93,10 30 1876.7"
2 93,11 31 1676.73
3 93,12 30 1876.73
4 .94,(11 31 1876.73
5 114,02 31 1878,73
8 94.03 28 1&76.73
7 94,04 31 1675.73
6 04,05 30 1876.78
o 114M 31 1670.73
10 94,rn SO 1678.73
\. n . It 04,oa 31 U17e.73
~!!: 12 lM.l!i- 31 1678.73
13 ouo- lID 1670.73
14 04,11 SI 11I70.73
IS 114.12 30 1ll78.73
16 OS.oI 31 1ll78.73
17 93.02 31 1870.73
16 IIS'O:I 28 187e.73
19 06.04 31 I 678.7S
20 OSM 30 11I70.73
21 05,06 31 1 ll78.73
I 22 O!5,rn 30 1676.73
'"<\ 23 95,oe 31 1878.73
~"'\t 24 05.qp 31 187e.73
25 05.10 30 11I78.78
26 05,11 31 167e.75
27 85,12 30 1878.73
26 lICI.OI 51 1 1I78.73
20 ' 06;02'-" 31 167ll.73
30 95m 28 1678.73
31 oa.04 51 11l78.7"
32 lICI,05 SO 11178.73
33 1lll.Oe 31 187ll.73
34 95,07 SO 1&711.73
I 35 lICI.06 31 1&78.73
"^ 36 95.Oll 51 1670.75
.~I~~ 37 95,10 30 1670.75
311 lICI,lt 51 1117ll.73
39 95,12 30 1ll78.73
:~ ..,- ~:;:..- ;; ;:;;:
42 117.OS 20 1ll78.73
43 07,04 31 11l7ll.73
44 97.OS 30 1ll78.73
45 97,oe 31 1670.73
46 117.07 30 1117ll.73
.N 47 07,06 31 1ll78.73
,fll Q. 46 117,011 SI 11I7ll.73
49 ..'.1U .,0 1a7tl73
50 97.11 31 11I78.73
51 97,12 30 1870.73
52 lICI,OI 31 1676.13
'~VB,oz''''' "'-'-31' - 1117il.7S"
54 oa,03 28 1670.73
55 ge,04 31 167e.73
56 ge,OS 30 1670.73
57 9II,oe 31 1676.73
58 ge,rn 30 1678.73
59 93,08 31 1676.73
;0,1\ ~o 96.09 31 1676.73
...
TOTAL
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of adjacent areas, their employees and business invitees to enter and
depart through, over and across the demised premises of Tenant in such
locations aB from time to time shall be reasonably agreed upon between
Landlord and Tenant, subject to arbitration (pursuant to the same proce-
dures of arbitration as provided for condemnation award under Section 703)
if the parties cannot mutually agree.
Sec. 102. Fixtures. Hachinerv and Equipment. All fixtures,
machinery and equipment I~hich arc nec~ssary to the general operation
and maintenance of the leased premises, shall be the property of Land-
lord whether owned by Landlord at the commencement of the term, subse-
quently purchased by Landlord, or purchased by Tenant in accordance with
the provision of this lease. All lighting fixtures, heating equipment
and air-conditioning equipment shall be considered necessary to the
general operation and maintenance of the premises. Trade fixtures,
machinery and other equipment,which are supplied and used by Tenant
in the conduct of the business and which are not necessary for the
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general operation and maintenance of the leased premises, shall be the
property of Tenant and may be removed by Tenant at any time prior to
termination of the lease. If required by Landlord, Tenant shall at
its expense remove promptly, and not later than thirty (30) days after
the expiration of the term of the lease or any renewal thereof, such
trade fixtures and repair any damage caused by su~h removal.
Sec. 103. "Premises" and "Improvements" Defined. As used in this
Agreement, "premises" means the premises described in Section 101 above
and includes all improvements now or hereafter located or constructed on
the premises, including the fixtures and equipment therein which arc the
property of Landlord as above described. "Improvements" means all build-
in~s and other improvements nO\~ or hereafter located or constructed on
the prer.liscs.
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payable hereunder and otherwise upon the terms and conditions of this
lease, and eicher Landlord or Tenant may terminate such tenancy at the
end of any such year upon not less than one hundred tllenty (120) days'
notice of termination; provided, hOllever. Chat, upon notice to Tenant
within sixty (60) days after such holding over. Landlord may elect that
the hold-over cenancy shall be from month to month and terminable by
Landlord or Tenant at the end of any month on thirty (30) days' notice.
Article 3
RENT - TAYillS - INsur~CE
Sec. 301. Rent. Tenant shall pay to Landlord as rent during the
term of this lease an annual rental of Six Thousand Dollars ($6,000.00),
payable in monthly installments of Five Hundred Dollars ($500.00) in
advance, commencing on the first day of the first calendar month of
"VI\:,r.E.1J '/I': "" (). ll.1\S1<:.. \.€....Sf- pEf.IOb ,
the ~ and continuing monthly throlJghout the balance of the term;
provided, however, that if the first day of the term is not the first
1 day of a calendar month, Tenant shall, as an addition to the firs t
rent payment, pay to Landlord as rent for the portion of the term
prior th~reto a pro rata part of such monthly ~nst~llment of re~t,. . '~/" ''\
tU,.... ~.,...,_ t-v-I:-J.. "" .u.. ~~(..., .....1.......1..... --..J.LA., ,.}- '. "" ...It,M>-..L....u:..J.l...,... I
In addition theretovTenant shall pay to Landlord as additional
~ J:l,.. ~b..,... '~I.."" -i .v.....lI-.\,.... ~ _ ___
rent for the premises over and above the aforesaid annual rental of",., ___
Six Thousand Dollars ($6,000.00) a sum calculated on gross sales made
in, upon or from said premises for each annual period of said lease as
.~
be necessary to enable Landlord to make a full and proper audit of
the gross income of all business done in, upon or from the leased ~
"',,^(.NIl'~-~
premises. ~ J-..ll 0--. ~ ~"'-l..~~J l" \,!,"t
"(-Tenan. .hol 1 on-thC-tW~fihh-(25tlV'day- of'-Harc~Jin each
year during the term of this lease, and upon ~he~entY-fifth (25th)
day of the third month following the e:;piration of such fractional
part of a yearly period as occurs at the beginning and eKpiration of
this lease, render to Landlord a certified public accountant's state-
ment showing the total gross sales of all business done in, upon or
from said leased premises for the preceding calendar year or for such
fractional part, if any, of a yearly period as occurs at the beginning
and eKpiration or termination of the lease. Final adjustment shall be
made on the basis of such statement. If Landlord is not satisfied
with any annual or other statement thus submitted, then Landlord shall
give notice to Tenant of such dissatisfaction within siKty (60) days
after receipt of the statement complained of. Unless within ten (10)
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days of such notice of dissatisfaction, Tenant shall satisfy Landlord
with respect to such statement thus complained of, then Landlord shall
have ,the privilege of having an audit made of the account books and
records pertaining to the aforesaid business of Tenant. Such audit
shall be made by certified public accountants in good standing to be
selected by Landlord, which accountants shall work in conjunction I~ith
like accountants selected by Tenant. Accountants employed for such
audit by Landlord shall be paid by Landlord and accountants employed
therefor by Tenant shall be paid by Tenant. Tenant shall render all
possible assistance to such accountants and shall give them access to
all books of account and other records that Clay be necessary to enable
.7-
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such accountants to mal~e full and complete audit of all gross income
of all business done in, upon and from said leased premises.
Sec. .302. Taxes and Assessments. Tenant shall pay all taxes,
assessments and othel: public charges levied upon or assessed agai!lst
the premises, or arising by l:eason of the occupancy, use or possession
of the premises, which arc Ol: may become a lien during the term of this
lease, all of 14hich al:e hereinafter collectively referred to as "taxes".
So long as the demised premises shall be separately assessed and taxed,
Landlord shall upon receipt of bills for such taxes levied upon or
assessed against the leased premises, immediately cause said ta~ bills
to be delivered to said Tenant, who shall, Ilithin the discount period
of the respective ta:~ bills, pay said bills and furnish to Landlord
evidence of the payment thereof or the receipted tax bills which would
evidence their payment. All ta~es fOl: the year in which this lease
begins as well as for the year in which this lease is terminated shall
be prorated between Landlol:d and Tenant on a calendar-year basis.
Landlord shall furnish Tenant immediately upon receipt by Landlord of
the tax bills and assessment notices for the leased premises, copies
of such bills and assessments and Tenant shall have the right, in
Tenant's sole discretion, to prosecute in the name of Landlord, at
Tenant's expense, any contest whether before the taxing authorities
or the court of such ta:~ bills and assessments as Tenant sees fit to
prosecute, Landlord hereby undertalting and agl:eeing to coopel:ate and
give all reasonable assistance to Tenant but lIithout eKpense to the
Landlord in its filing of such Pl:otests and its prosecution of such
proceedings. Tenant shall furnish Landlol:d satisfactol:Y indemnity
against any loss that it .::15 the at-mer rony sustain by reason of such
contest or proceedings instituted iJy Tenant as aforesaid set forth.
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Sec. 304. Liabilitv Insurance. Tenant, at itB expenBe, Bhall
provide and keep in force for the benefit of Landlord and Tenant com-
prehensive general liability insurance in which Landlord shall be
named as an additional assured with minimum limits of liability in
respect of bodily injury of Five Hundred Thousand Dollars ($500,000.00)
for each person and One Hillion Dollars ($1,000,000.00) for each acci-
I
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dent and in respect of property damage of Fifty Thousand Dollars
($50,000.00) for each accident. Such policies shall cover the demisp.d
premise~, including but not limited to parking facilities,' sHe\~all(s,
streets and ways adjoining the premises; provided, however, that from
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and after such time as additional building improvements are constructed
on the property of Landlord adjacent to the demised premises' and said
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adjacent property and the demised premises shall be used jointly for
parking facilities, sidewalks, streets, access ways and other joint
facilities, Landlord shall carry public liability insurance covering
said parking facilities, sidewalks, streets, access ways and other
joint facilities in limits of at least ~~o Hundred Thousand Dollars
($200,000.00) in respect of bodily injury for each person and Five
Hundred Thousand Dollars ($500,000.00) in respect of bodily injury
for each accident, and such insurance shall be carried in favor of
Landlord and Tenant, as their, interests may appear.
All of such policies shall be issued by insurance companies
and in form reasonably satisfactory to Landlord; and shall provide
for at least fifteen (15) days' written notice to Landlord by the
insurance carrier before cancellation shall be effective. Such
policies or certificates thereof shall be delivered to Landlord by
"
Tenant.
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Sec. 305. Waiver of Right of SubroRation. Landlord hereby
..
releases Tenant to the extent of Landlord's policies of insurance
from any loss or damage caused by casualty covered by such insurance
, '
policies, even if said casualty shall be brought about by fault or
negligence, and Ten&nt hereby releases Landlord to the extent of
Tenant's policies of insurance, from any loss or damage caused by
casualty covered by such insurance l'oli~ies, even if said casualty
shall be brought about by fault or ne31iGencej Provided, however,
this release shall be in full force and effect only with respect to
loss or damage occurring during such time as Landlord's or Tenant's,
as the case may be (to wit, the party releasing such claims), policies
of insurance shall contain a clause to the effect that this release
shall not affect said policies or the right of Landlord or Tenant, as
the case may be, to recover thereunder. If, at any time, Landlord's
or Tenant's insurance carrier refuses to \~ite insurance which con-
tains the consent to the foregoing release, then within ten (10) days
after such refusal, Landlord or Tenmt, as the case may be, Bhall
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notify the other party thereof in IJriting, and upon the giving of
such notice, this paragraph shall be null and void and of no effect
as to any casualty suffered after such notice.
Sec. 306. Uti1itv Char~es. Tenant shall pay all charges for
water, electricity, gas, telephone and all other utility services
furnished to the leased premises.
Sec. 307. Rent on Net r.eturn Basis. It is intended that the
rent provided for in this lease shall be an absolutely net return to
Landlord for the term or this lease, free of all expenses or charges
with respect to the pre~ises. including taxes and assessments now
-11-
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unless and until Tenant shall, at least one hundred twenty (120) days
prior to the expiration of the term or any of said renewal terms, have
given Landlord written' notice of Tenant's intention to so renew and
extend this lease for said renel~al term or terms. All of such renel~ed
and extended terms shall be subject to all of the rents and additional
rents and all of the conditions, covenants, limitations and warrants
set forth in thi s lease. If such notices as set forth above are not
given, Section 203, Hold-Over Tenancv, shall apply.
Article 6
TITLE, CONDITION AND USE OF PREMISES
Sec. 601. Use - Compliance ~nth Laws and Restrictions. Tenant
shall have the peaceful and quiet use of the premises for any lawful ., ~
purpose I~ithout hindrance on the part of Landlord or on the part(;;"f'" r.'."-
other tenants of Landlord on property adjacent to the demised premises,
to which tenants Landlord shall have given the right to use jointly
with Tenant parking facilities, sidewalks, streets, access ways and
other joint facilities, and Landlord shall warrant and defend Tenant
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in such peaceful and quiet use against the lawful claims of all per-
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sons claiming by, through or under Landlord or such other tenants of
Landlord. Tenant shall not breach or suffer the breach of any of the
conditions, easements, agreements and restrictions affecting the prem-
ises and shall hold Landlord harmless against any such breach. Tenant
shall comply with all laws, ordinances and regulations of duly con-
stituted public authorities nOl~ or hereafter in any manner affecting
the premises, the adjacent sidewalks or any improvements thereof or
the use thereof. Tenant shall have the right to contest the validity
of any laws, ordinances or re~ulations adversely affecting its use of,
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initially contemplated herein shall be constructed on the demised
premises.
Sec. 605. Landlord's Ri~ht to Inspect and Ueoair. Landlord
shall have the right at recsonable times to inspect the premises.
,
Landlord may make any repairs which Landlord determines are reasonably
necessary for the protection and maintenance of the premises if Tenant
fails to commence such repairs for which it is liable within thirty
(30) days after notice from Landlord, unless emergency conditions
require immediate comnencement, and Tenant shall pay Landlord promptly
for any and/or all expenditures made by Landlord for such work.
Sec, 606. Mechanics' Liens. From and after date of possession,
Tenant shall not permit any mechanics' or similar liens to remain upon
the premises for labor or material claimed to have been furnished to
Tenant in connection with work of any character performed or claimed
to have been performed on the premises or at the direction or with the
consent of Tenant, from and after date of possession, performed or
.:
furnished after the commencement of the term of this lease. Tenant
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may contest the validity of any such lien or claim; provided, Tenant,
;
if required by Landlord, shall give to Landlord reasonable security
to insure payment and to prevent any sale, foreclosure or forfeiture
of the premises by reason of such non-payment. Upon a final determina-
tion of the validity of any such lien or claim, Tenant shall immediately
pay any judgment or decree rendered against Tenant or Landlord with all
proper costs and char8es and shall cause such lien to be released of
record without cost to Landlord.
Sec. 607. Seniority of Lease and Tenant's Financing. Landlord
agrees that during the tet>n of this lease and all renewals thereof,
-16-
Landlord will not encumber the prcmises by mortgage, pledge or other
assignment of its interest in such a way as to adversely affect Tenant
or Tenant's mortgagee or pledgee or its or their investment therein.
Landlord further I~arrants and represents, as nn inducement to Tenant
to enter into this ^greement, that Landlord has fee simple title to
thc demised premises, unencwnbered by an~' mortgage, pledze or assign-
ment and has full and unrestricted pOller and authority to entet" into
this Lease Agreement. Landlord shall upon demand execute, acknoNledue
and deliver to Tenant any and all instruments necessary to assure that
the mortgage financing by Tenant shall be a first lien on the demised
premises.7<~Anything herein contained to the contrary notwithstanding,
in the event that Landlord shall be the mortgagor on Tenant's financin:;
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j,I~;1:"...J".\ ~ ,q.NO 'oN""n- ,.." :;'/i',ut;. _'~\eJ~ J.4Ni)LI>,ziJ -.'
tHen Landlord"shall execute the mortgage as mortgagor but"shall not be
required to eltecute the mol:t:;age bond for which the mortgage shall be
security.
Anything herein contained to the contrary notwithstandinh-lt 'is ,'~~.
agreed, however, that Landlord shall have the right to mortgage or pledge
the demised premises so long as said mortgage or pledge shall be limited
in its encumbrance to the land and shall not encumber thereby the build-
ing improvements thereon erected and so long as the lien of said mort-
gage or pledge of the Landlord shall not affect the lien of any mortgage
by Tenant on or upon the building improvements thereon, to the end that
,
the building improvements thereon erected shall be available at all
tL~es for first mortgage financing by Tenant during the initial term of
this lease; provided further that Landlord shall have the right, subject
only to the pt"epayment privileges and penalties of the first mort:p:;e
placed by Tenant on the buildin:; improvements, to mortgage or pledge
the demised premises in ccmbination \-lith such i.r.tprovcmcnts so long as
Tenant's mortgage cebt service cltaJ:!jes shall not be thet"eby increased
-, 7-
durin:; the term or any rene\1111 tenn thereof, The exact manner of such
refinancing as above provided shall be subject, hOI~ever, to the mutual
a[lreemcmt of Lllndlord and Tenant.
Section 600. Ten~nt to Indemnifv Landlord. Tenant shall indemnify
Landlord against all liability and e::pense arisin:; fl'om injury to per-
sons or property in any manner arisins from Tenant's use and occupanc~
of the demised premises or the condition thereof, and Landlord shall
indemnify Tenant against all liubility and el<pense arising from injury
to persons or property in any manner arising from the use and occupancy
of parlting areas, side\1alks, streets and \,;ays from and after such time
as said parking areas, sidel/allts, streets and Hays shall be used jointly
by Tenant and the occupants of Landlord's property adjoining the demised
pre~ises. From and after the besinning of such joint use and occupancy,
Tcnant's indemnification of Landlord hereunder shall be limited e::clu-
sively to the building and building improvements (exclusive of parlting
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areas) on the demised premises.
Article 7
DESTRUCTION OR CONOmfilATIotl OF PREHISES
Sec. 701. Damage and Restoration of the Premises. If the said
buildings upon the demised prc",lses shall be dama:;ed by fire or other
casualty so that they cannot be repaired or restored to their fonner
condition within a period of six (6) months, then this lease shall at
Tenant's option absolutely cease and detel-mine and, in such event, no
further rent shall be payable from the date of said fire or other
casualty, and all insurance proceeds shull be applied first to the
discharse of any and all indebtedness incurred by Tenant in connection
\1ith Tenant I s Invcstment and the balance thereof shall be paid to
Landlord, If, hO\1ever, the pre:nises can be restored to thei!' former
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(a) Tenant shall default in payment, when due or within
, thirty (30) days thereafter. of any installment of
rent or other sum required to be paid by Tenant under
,this lease; or in the observance or performance of any
other covenant or provision of this lease and such
de~ault in the observance or performance of any such
covenant as aforesaid continues for thirty (30) days
after written notice of such default from the Landlord
to the Tenant; or
(b) Tenant shall make an assignment for the benefit of
creditors; or
(c) A voluntary petition is filed by Tenant under any law
for the purpose of adjudication of Tenant as a bank-
rupt. or the extension of the time of payment, com-
position, arrangement. adjustment. modification,
settlement or satisfaction of the liabilities of
Tenant, or the reorganization of Tenant under the
Bankruptcy Act of the United States or any future
law of the United States having the same general
purpose; or Tenant shall on involuntary petition
therefor be adjudged a bankrupt; or a receiver is
appointed for Tenant for reason of insolvency or
alleged insolvency of Tenant;
the occurrence of any such events shall be a breach of this lease, and
Landlord may at its option elect to terminate this lease and upon
notice to Tenant of such election this lease shall terminate to the
same effect as if the date of notice were the date of expiration of
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the stated term or any extensions thereof and Tenant shall surrender
the premises to Landlord but shall remain liable as hereafter provided.
In the event that the term of this lease or any extensions
thereof shall terminate as'provided in this Article before the expira-
tion date originally fixed, or if Landlord exercised a right to re-enter
and repossess the premises, or if Tenant is dispossessed or removed
therefrom by summary proceedings or otherwise, Landlord, at its option,
may elect from time to time to rent the premises or any part thereof
in its own name or for the account o~ Tenant, for the residue of the
term of this lease or for a longer period of which the said residue is
-22"
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a part, or for a shorter period or periods, at such rental and upon
such terms as Landlord deems best, and may receive the rents therefor,
applying Bny moneys collected for the residue of the term of this
lease, first, to the payment of such reasonable e~pense, including
attorney's fees, to which Landlord may have been put to obtain posses.
sion; second, to the restoration of the premises to a rentable condi-
tion; and third, the balance of the net amount of the rents to the
performance of Tenant's obligations, under this lease. Any surplus
shall belong to Landlord, but Tenant sl~ll remain liable for any defi-
ciency. In the event of a reletting of the premises, Tenant agrees
to pay to Landlord as damages for such breach, notwithstanding any
entry or re-entry by Landlord, whether by summary proceedings, termina-
tion or othen.ise, any e~cess of the amount of rent and all amounts
payable as rent I;hich under the ter.lS of this lease would become due
if this lease had not been terminated over the net amount of the rents
which shall be collected and received by Landlord as provided above
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for the premises during the residue of the term. Such damages shall
be paid in equal monthly payments on the rent payment dates provided
.'.
by this lease as the amount of such e~cess shall from time to time be
ascertained.
Sec. 902. Rent Acceleration if Tenant Adiudged Bankrupt or
Insolvent. A.,ything herein contained to the contrary notl.ithstanding,
if at any time after the date of this lease Tenant shall be adjudged
insolvent or bankrupt, rent covering a twelve (12) month period at the
rate hereby provided shall become immediately due and payable.
Sec. 903. Cumulative Rights. No right or remedy herein conferred
upon or reserved to Landlord is intended to be e~clusive of any other
right or re:nedy herein or by 181. provided, but each shall be cumulative
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shall not exceed eighteen thousand two hundred (18,200) square feet
and.that plans for such expansion shall be approved by the Landlord
in writing, which approval shall not be unreasonably withheld. In the
event of such expansion, Tenant shall have the right to increase its
first mortgage financing to cover the increase in Tenant's Investment
incurred as a result of such expansion; provided, however, that Tenant
shall coincidentally therewith e::ercise such available renel~al options
as shall extend the ternl of the lease as is required for a period to
fully amortize the amount of such additional financing, and for pur-
poses of Section 1001, the I~ords "basic term" shall be construed to
mean basic term as extended by such exercise of renel~al options; and,
provided further that, if Landlord has exercised Landlord's reserved
right under Section 1001 to finance the demised premises with buildin3
improvements thereon, LandlorJ will further refinance to the extent
reasonably possible to place a first mortgage on the demised premises
with building improvements thereon, as so expanded.
,Sec. 1003. General Provisions Relative to Use of Premises. Tenant
shall have the right to the use and access to existing streams on or in
the vicinity of the demised premises for the dumping of effluent: sub-
ject, however, to all municipal and health ~uthority and regulations.
Landlord and Tenant shall cooperate in the further development of Land-
lord's property adjacent to the demised premises in connection with lay-
out, design, construction and maintenance of cornmon facilities for the
owners and occupiers thereof in connection with sanitary sewer, water
service, electricity service, gas service and telephone service, subject
to co~pliance by Tenant I~ith applicable health re3ulations.
Sec. 1004. Other Leases, Landlord agrees that it will not lease
any other Bpace on Landlord's property adjacent to the demised premises,
"~,(, .
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nor permit any other space thereon to be'uood'by any other tenant for a
food supermarket. baltery, meat ohop or any othol' liko store or estab-
lishment which has as a substllntilll portion of ita business ~to wit I
thirty percent (307.) or mal'o of its SIlIOll volnlllo) that of solling
unprepared food for consumption off of till! promilll!s [or 00 long as
there shall be less than one hnndl'ed thouoand (100,000) oquare feet
of space constructed on sold adjacent property of Landlord in addition
to the square footage of Tenllnt. In the event that the total building
square feet, other than that constructed by Tenant, Bhall exceed one
hundred thousand (100,000) square fco t, thon Landlord shall have the
right to lease on the property of Landlord adjacant to the demised
premises area for or a structure for use aD a food oupermarket so Ions
as said area or building ohall not be of size above ground in excess
of that then used by Tenant for ,1 food onpol'111arl<ot.
Sec. 1005. Park in~ Fad lit leu. In tho event that Landlord
develops the property adjacent to the domisod premioos. the Landlord
~'
shall at all timos provido Cor parldng facilitieo for the joint use
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of Tenant and of other tenanta of tho adjacent property at least equal
to three (3) square feot of parking for oaeh oquare foot of total
:
building improvemento.
Sec. 1006. M:llntml<II"''' of l'ar1<in~ Al'ons, Streets and Hays.
Until Landlord develops th" property adjacent to the demised premises,
Tenant at its nolo cant shall maintain parking facilities, streets
and ways on the demined promison. inc luding but not limited to (1)
snow removal within a l'eallonablo period after each snowfall, and (2)
maintenance of lighting fixture!; and !iupply of electricity therefor,
parkinG o'luJ fthld ~lIr Lh~l'~i. ~lI\d ~ilr iping for traffic control and park-
Lng. From ,111<1 ..iter I.:", dolte Lhat any tonant of Landlord shall
occupy .1 portion o!' chI' pI','.1i ,;,'~ ildj,lcellt to the de:nised premises
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CONMON\~EALTH ,.OF PENNSYLVANIA
,) ,
COUNTY OF ~;-o/~.
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On this, the,..,'!.,.?,~ day of k1:,c<,~,,,,,(,'" ,196;1, before me, the
undersigned officer, personally appeared Samuel Kushner, knot~ to me
(or satisfactorily proven) to be the person Hhose name is subscribed
to the within instrument, and acknowledged that he executed the same
for the purposes therein contained.
In Witness Whereof, I hereunto set my hand and official seal.
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/ide' ""Vt.:d;',(/ (,-(" :.-;61-:',":::/
'i Notary Public ::/ .,-::/'
NOTARY PUBLIC
U, c,:mh\inion [lp\lct July it. lSS3,
I r, DIU""" I;t,
lOAU pultlll .p." r-'
COHHONWEALTH OF PENNSYLVANIA
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COm~TY OF ;Y A.M/,/'<~
On this, the<-1'l.</tJday of ~<,~'?'.'~h-... , 196j(before me, the
undersigned officer, personally appeared William A. Burdick, known
to me (or satisfactorily proven) to be the person Hhose name is sub-
scribed to the within instrument, and acknowledged that he executed
the same for the purposes therein contained.
~
In Witness \~ereof, I hereunto set my hand and official seal.
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'( Notary Public /// ,//
NOTAm~. P.lJBUC:
L"t C,ml.l~~:n "i,r.il'.'. JIl!"J ,lS.:, \~ja
I Qt.:1 ,"Ulc,n l_;.. .'~. lilupnin Ce.
CONMON',IEALTH OF PENNSYLVANIA
(.J SS:
COUNTY OF )&?.<-y:L~
On this, the .<..?"..../ day of J)..:t'..,,,,.t.~v , 196 'if before me, the
undersigned officer, personally appeared William Davis, knot~ to me
(or satisfactorily proven) to be the person whose name is subscribed
to the within instrument, and acknoHledged that he executed the same
for the purposes therein contained.
In Hitness Whereof,
I hereunto set my hapd and official seal.
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!<Am:> Pe i&le , l"anCY rood I Ltd..
Defendant
OATH
W. tlo 101-'-1 ",ur (Dr If Un) tllat VI! will lupport, obey and 4d.u
the CoIiItlt\ltioD of the Vu1ted Suta ,JIlI the Coutlt\1tiOQ of tld. Co=lon-
wealth c4 that we wiU 4hch.rle the dllti~ o~~~. witb Udellty.
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v., the UlSdndp.d arbltntou, !>avilll b.1tl dilly appolZlted cd .worD
(or 'affUMd), .-It. the f"Uov1UC nud:
(1(ote: If .s-Ie. foe dd., ar' avard.d, they ,ball be
.epanre1y lUted.)
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applle&tlle. )
Arb1trat;~ d
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(Ins. n tI.U>e if
Date of lIuring:
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1l0TICE or mTRY .,r AIlAJU)
IlCIV, tbt /t)fII,.day of ~ ' 1997 , at I/O, fJ .M., the .bov",
....rd vu entered upolI rh. docl<et '00 notice 'tile'reot 1l1Veii by IIl&U to the
p.rtl.. or their areoraeys.
Pan of .....nd:
Arbitraton' cCl1:Iptu.aatloo to b.
paid upon appaal:
$ dllJ. OJ
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