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HomeMy WebLinkAbout97-04452 ~ ) ~ ~ .\l ~ { I :1 . rot 'c'\ ~ ~' KI' 0". ~I I The restaurant known as La Fontana, known as 420 Market street, Lemoyne, PA, which is a rental property located on the following described premises: ALL TBAT'~AIB lot or piece of ground with the buildings and improvements thereon erected, situate in the Borough of Lemoyne, Cumberland County, pennsylvania, bounded and described in accordance with a Final Subdivision Plan prepared by Robert J. Fisher, Registered professional Engineer, dated september 1, 1993 and recorded in the Office of the Recorder of Deeds of Cumberland County, Pennsylvania, at Plan Book 67, page 10. BEGIBBIBG at the northern most point of the boundary line dividing Lot 11 from adjoining lands now or formerly of Thomas and Elena D'Agostino to the East, proceeding along said boundary line South 24 degrees 40 minutes 00 seconds East 135 feet to a point on the northern side of the right-of-way for Oak Street, thence along the northern side of the right-of-way for Oak Street South 65 degrees 20 minutes 00 seconds West 157.50 feet to a point, thence along the line dividing Lot 11 and land now or formerly of Lawrence ~. and Candace N. Dipietro North 24 degrees 40 minutes 00 seconds West 135 feet to a point on the southern line of the right-of-way for Market Street, thence along the southern line of the right-of- way for Market Street North 65 degrees 20 minutes 00 seconds East 151.50 feet to the place of BEGIBBIBG. Containing .49 acres, more or less. IZIBG Lot 11 on said Final Subdivision Plan. !06UAAA WID a ten foot strip of land adjoining Lot 11 to the South, .hown on the Final Subdivision Plan as part of a ten-foot addition to the dedicated right-of-way, and bounded and de.cribed in accordance with the Final subdivi.ion plan a. followsl IIZODllfIJIG at the southern most point of the boundary line dividing Lot 11 from lands now or formerly of Lawrence E. and Candace N. Dipietro to the West, and proceeding along the southern boundary of Lot t1 Horth 65 degrees 20 minutes 00 seconds East 151.50 feet to the southern IDOst point of the boundary line dividing Lot t1 from lands nOW or formerly of ThOlllls and Ilena D' Agostino to the Ea.t, thence proceeding South 24 degrees 40 minutls 00 seconds last 10 feet to a point within the dedicated right-of-wey, thence proceeding South 65 deqrees 20 minute. 00 ..cond8 West 157.50 feet to . point within the dedicated right-of- way, thence proceeding North 24 deqree. 40 Idnute. 00 ..conds "..t 10 feet to the place of alGl"1IG. EXIUBtT A ~ p ~ ~ ,.. ..., '""Cu~; ,... C!:'f~' c:: ~ .j.':>", ~ -, . .. ,j - ::';1 w'/ ..... ~ ".~. Ul n - re' '~ ., ?l) .$:. ~\-... ..~~ ~ ~ ,.,C' ~ It. . or"",! -. -~ t;. t9 r.~ fr.>> ~.. (,) ~ .~ 6"' l) --J ':) ~ ~ - "'t -.; - !; 00 ~ ~ ~ 0\ , ~ PAUL L, KOSTICK t/a PLK PROPERTIES, Plaintiff IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA v. . . No. <77 - '1.i/.5J.. VINCENZO MARCHIANO and GUISEPPE RUSSO, Defendants . . COMPLAINT IN CONFESSION OF JUDGMENT FOR EJECTMENT 1. plaintiff is Paul L. Kostick, an adult individual, trading as PLK Properties (hereinafter "PLK"), with an office address of 418R Market Street, Lemoyne, Cumberland County, Pennsylvania. 2. Defendant, Vincenzo Marchiano (hereinafter "Marchiano"), is an adult individual, former owner/operator of La Fontana, Inc., a Pennsylvania Corporation doing business at 420 Market street, Lemoyn., Cumberland County, Pennsylvania. 3. Defendant, Guiseppe Russo (hereinafter "Russo"), is an adult individual, and current owner/operator of La Fontana, Inc., a P.nn.Ylvania corporation doing business at 420 Market Street, Lemoyn., CUmberland County, PennRylvania. 4. At all time. her.in mentioned, plaintiff wa., and now i., the owner in f.. simpl., and entitled to the pos....ion of, c.rtain real property located at 420 Market Street, Lemoyne, cumberland county, Penn.ylvania, and IIOre fully described in Exhibit A attached hereto. 5. on or about NOveaber 19. 1993, plaintiff entered into a written Lea.e with Francesco Failla (the "Lea.e"), a true and .. '."'f'f'1l''J;\ _ '~\mD.t"n.Kll'lI!to""~ ..-". ......." .. , > .. ~ Jli. correct copy of which is attached hereto as Exhibit B, for the Lease of Plaintiff's property located at 420 Market street, Lemoyne, Cumberland County, Pennsylvania. 6. On or about September 14, 1995, pursuant to a Lease Addendum, a true and correct copy of which is attached hereto as Exhibit C, Marchiano, assumed full responsibility for the obligations of the said Lease. 7. On or about April 19, 1996, pursuant to an agreement between Marchiano, Russo and PLl<, a true and correct copy of which is attached hereto as Exhibit 0, Russo assumed possession of the premises and the responsibility for the obligations of the Lease. Marchiano also remained responsible for the Lease obligations. 8. Judgment on the Agreement has not been entered in any jurisdiction. 9. Pursuant to the terllls of the Lease, Plaintiff is authorized to enter judgment by confession for ejectment after default by Defendants. 10. Defendants are in default of the terms of the Lease hereinabove described, by failing and refusing to make the monthly payaents in a ti.ely manner. 11. This judqment is not being entered by confesslon aqalnst a natural person in cOMection with a consWler credit transaction. 12. JudClMnt has not been entered on the inatruHnt in any jurisdiction. 1). Defendants have f"Uad and refuaed to surrender .. '. "'f1o'tt'.A\I".lITll:1 \ '.1'\.Kllt -", "" The restaurant known as La Fontana, known as 420 Market Street, Lemoyne, PA, which is a rental property located on the following described premises: ALL TBA~~AI. lot or piece of ground with the buildings and improvements thereon erected, situate in the Borough of Lemoyne, Cumberland County, Pennsylvania, bounded and descritled in accordance with a Final Subdivision Plan prepared by Robert J. Fisher, Registered Professional Engineer, dated September 1, 1993 and recorded in the Office of the Recorder of Deeds of Cumberland County, Pennsylvania, at Plan Book 67, Page 10. 8EOI&I80 at the northern most point of the boundary line dividing Lot '1 from adjoining lands now or formerly of Thomas and Elena D'Agostino to the East, proceeding along said boundary line South 24 degrees 40 minutes 00 seconds East 135 feet to a point on the northern side of the right-of-way for Oak Street, thence along the northern side of the right-of-way for Oak Street South 65 degrees 20 minutes 00 seconds West 151.50 feet to a point, thence along the line dividing Lot 11 and land now or formerly of Lawrence a. and Candace N. Dipietro North 24 degrees 40 minutes 00 seconds West 135 feet to a point on the southern line of the right-of-way for Market Street, thence along the southern line of the right-of- way for Market Street North 65 degrees 20 minutes 00 seconds East 157.50 feet to the place of BEOIRRIIO. Containing .49 acres, more or less. BEllO Lot .1 on said Final Subdivision Plan. TOG~~II&K 111ft a ten foot strip of land adjoining Lot 11 to the South, shown on the Final Subdivision Plan as part of a ten-foot addition to ths dedicated ri9ht-of-war' and bounded and described in accordance with the Final Subdivis on Plan as follows: IBGIDIIIO at the southern most point of the boundary line dividing Lot 11 from lands now or formerly of Lawrence E. and Candace N. Dipietro to the West, and proceeding along the southern boundary of Lot 11 North 65 degrees 20 minutes 00 seconds East 151.50 feet to the southern most point of the boundary line dividing Lot 11 from lands now or formerly of Thomas and Elena D' Aqo.tino to the Ealt, thence proceeding South 24 degree. 40 minutes 00 second. East 10 feet to a point within the dedicated right-of-way, thence proceeding South 65 degrees 20 IIinute. 00 .econd. We.t 157.50 feet to a point within the dedicated right-of- way, thence proceeding North 24 degree. 40 IIinute. 00 seconds West 10 feet to the place of IIOI..IIIO. URflllT A KOSTICK/FRANCESCO FAILLA LEASE TABLE OF CONTENTS ARTICLE 1. TERM . . . . . . . . . . . . . . . . . 1 ARTICLE 2. RENT . . . . . . . . . . . . . . . . 2 ARTICLE 3. USE OF PREMISES. . . . . . . . . . . . 3 ARTICLE 4. REPAIRS AND MAINTENANCE. . . . . . . . 4 ARTICLE 5. UTILITIES AND TAXES. . . . . . . . . 5 ARTICLE 6. ALTERATIONS, ADDITIONS, AND IMPROVEMENTS . . . . . . . . . . . . 6 ARTICLE 7. TRADE FIXTURES AND SIGNS . . . . . . . 7 ARTICLE 8. MECHANICS I LIENS . . . . . . . . . . . 8 ARTICLE 9. INSURANCE AND INDEMNITY. . . . . . . . 8 ARTICLE 10. DAMAGE OR DESTRUCTION OF PREMISES. . . 10 ARTICLE 11. CONDEMNATION . . . . . . . . . . . . . 12 ARTICLE 12. EVENTS OF DEFAULT. . . . . . . . . . . 13 ARTICLE 13. INSPECTION BY LESSOR . . . . . . . . . 17 ARTICLE 14. ASSIGNMENT AND SUBLEASE. . . . . . . . 18 ARTICLE 15. ENVIROJlKENTAL COMPLIANCE . . . . . . . 18 ARTICLE 16. RULES AND REGULATIONS. . . . . . . . . 21 ARTICLE 17. CONDmOll PRECZDENT. . . . . . . . . . 21 ARTICLE 18. MISCELLAHJ:OUI. . . . . . . . . . . . . 21 nM181t 8 LEASE This Lease is made and entered this 19th day of November, 1993, between Paul L. Kostick, referred to in thiu Lease as Lessor, and Francesco Failla, referred to in this Lease as Lessee. In consideration of the mutual covenants and agreements set forth in this Lease, and other good and valuable consideration, Lessor leases to Lessee, and Lessee leases from Lessor, retail space at the west end of 420 Market Street, Borough of Lemoyne, Cumberland County, Pennsylvania, and more particularly described on Exhibit A attached to this Lease, and referred to herein as the Premises. AR'1'ICLE 1. '1'ERM '1'e1'lll of Leas. 1.01 The "Commencement Date" of the term of this Lease shall be the later of December 1, 1993 or the date when the Premises and the improvements required to be constructed by Lessor under Paragraph 6.01 hereof shall have been substantially completed; provided that if Lessee shall take possession of the Premises or any portion thereof prior to either of the foregoing dates, then the Commencement Date shall be the date on which Lessee takes such possession. Unless sooner terminated in accordance with the terms hereof, the term of this Lease shall end without the necessity for notice from either party to the other at 12:01 a.m. local time on the third (3rd) anniversary of the first day of the first full calendar month during the term (herein called the "Expiration Date"). When the date of commencement of the term of this lease is establi.hed, Lessor and Lessee shall promptly execute a memorandum acknowl.dging sam.. Option to btlU14 '1'.J:II 1.02 Le.... has the right to .xtend this Lea.. beyond the .xpiration date provided in S.ction 1.01 on the following t.ras and conditions: (a) Should Le.... fully perf ora all of the t.ras and condition. of this Le.... Le.... may extend the t.ra of this Le... for a period of three (3) years, with the .xtended t.ra to beqin on the day following the .xpiration d.t. of the Leas. t.ra .pecified in S.ction 1.01. However, if at the date of expiration of the oriVinal tera IA.... ia in default beyoncl .ny vrace period provided 1n this Le... for the performance of any of 1 the terms or provisions of this Lease, or any event has occurred which with the giving of notice or passage of time or both could constitute a default under this Lease, Lessee's exercise of any option exercised and shall be null and void. All of the terms, covenants, and provisions of this Lease shall apply to all extended Lease terms except that the rent for each such extended term shall be adjusted as set forth in section 2.01 hereof. (b) Lessee may exercise each option to extend this Lease by giving to Lessor notice of its intention to do so not later than six (6) months prior to the expiration of the initial Lease term. To constitute effective notice of an intention of exercise an option under this Lease, the notice must be sent by certified or registered mail or nationally recognized overnight courier to Lessor at the address and in accordance with the procedures provided in section 16.01 of this Lease and must be postmarked no later than the date provided in this Article for Lessee'. exercise of the option. Holdover 1.03 If Lessee hold. over and wrongfully continues in posse..ion of the Premi.e. after expiration of the term of this Lease or any extension of that term, Lessee will be deemed to be occupying the Premi.es at sufferance from month-to-month tenancy, without limitation on any of Les.or'. right. or remedies hereunder and subject to all of the terms and conditions of this Lease, except that the fixed rent shall be increased to twice the fixed rent payable for the last month of the term of this Lease prior to the holdover. Delivery of po.....iOD 1.04 If Les.or i. unable to deliver actual posses.ion of the leased Premise. on the commencement date of the term for any rea.on beyond Lessor'. control, including without limitation, because the building has not been sufficiently completed to make the Premise. ready tor occupancy, or if repairs or improvement. to be perform.d by l.s.or, are not compl.ted because of the holding ov.r ot a pr.vious occupant, the Le..or .hall not be liable in damag.. to the Le...., and during the period that the l...or i. unable to give po.....ion, no rent .hall accru.. No .uch tailure to give po.....ion shall in any oth.r re.pect att.ct the validity ot this l.as. or any obligation ot Lesse. her.under. U'fICLJI I. aarr Pia" aut 2.01 Letls_ aqr._ to pay to Lessor the sua of on. Thousand on. Hundred rifty ($1,150.00) Dollars per IIOnth in 2 advance on or before the first day of each month, throughout the term of this Lease as the fixed rent. The first and last monthly rent installments shall be paid at the signing of this Lease. Rent for any fractional month at the beginning of the Lease term shall be prorated on a per diem basis. At the conclusion of the third full Lease year and every Lease year thereafter, should the Lease term be extended, the fixed rent for the Premises shall be adjusted annually, provided that the fixed rent shall never be less than One Thousand One Hundred Fifty ($1,150.00) Dollars per month, by applying fluctuations in the Consumer Price Index as follows: (a) The Consumer Price Index for the purposes of this Lease shall be the Consumer Price Index for All Items for All Urban Consumers (unadjusted), published by the Bureau of Labor Statistics of the United States Department of Labor. For All Items, 1982-100. If the Consumer Price Index ceases to be published by the United States Department of Labor, Bureau of Statistics, then the calculation shall be based on the closest successor index as identified by the United States Department of Labor. If no such successor exists, the calculation shall be based on an index that is mutually agreed between Lessor and Lessee. (b) The Base Date shall be the month of October, 1993. (c) The adjusted rent shall be determined by multiplying the fixed rent by a fraction, the numerator of which shall be the Consumer Price Index for October of the third full Lease year and of each Lease year thereafter (the "Comparison Date"), as the case may be, and the denominator of which shall be the Consumer Price Index for the Base Date. The resulting sum, if greater than the fixed rent, shall be the adjusted rent payable monthly for the following Lease year. U'l'ICLB 3. USI or PJlIKISU perait:te" U.e 3.01 Les.e. may use th. Premis.s to op.rate and conduct a r.staurant and take-out busines., and tor no other purpoee, but in any event only in complianc. with any applicable laws, rule., regulations, statutes and applicable ordinances new or hereafter in ettect. Les.ee i. re.ponsible to procure all license., perait. and approval. required to conduct it. bu.ine.. on the Pr..i.... Le.... may not u.e the Pr..ia.. for any other purpo.e without the prior writt.n cons.nt of Le..or Which cons.nt may be withheld tor any reason or no reason, in the sole di.cretion ot Le..or. ) Waste, Nuisance, or Illegal Uses 3.02 Lessee shall not use or permit the use of the Premises in any manner that results in waste of the Premises or constitutes a nuisance or violates any statute, ordinance, rule, or regulation applicable to the Premises or for any illegal purpose. Lessee, at its sole cost, shall comply, and cause its officers, employees, agents and invitees to comply with all applicable laws, ordinances, rules or regulations or any other requirement of any duly constituted public authority having jurisdiction over the Premises or the use of the Premises, including, without limitation, the provisions of the Americans with Disabilities Act. ARTICLE 4. REPAIRS AND MAINTENANCE Repair. and Kaintenance by Les.ee 4.01 Lessee acknowledges and agrees that Lessee is familiar with and has inspected the Premises, and has apprised itself about the surrounding properties and neighborhood, the availability or unavailability of public water and sewer or other utility service to the Premises, and the zoning and other requirements applicable to the Premises, and that, except for the structural improvements identified in Section 6.01 to made by Lessor, the Premises is being leased in its "as is" "where is" condition without any representation by or on behalf of Lessor concerning the Premises. 4.02 Lessee shall, throughout the term of this Lease and any extensions of that term, at its own expense and risk, maintain the leased Premises in good order and condition, including but not limited to, making all repairs and replacements, renewals and additions, interior and exterior, ordinary and extraordinary, foreseen and unforeseen, necessary to keep and maintain the Premises and all syste.., equipment and apparatus appurtenant thereto or used in connection therewith and improvements (inClUding HVAC and glass) in good order and condition. All maintenance, repairs, and replacements required by this Article must be performed promptly when required and in a manner that will not cause depreciation in the value of the Prai.es. Lassee shall return the Premises to Lessor in such good order and condition at the expiration of the term hereof, ordinary wear and tear excepted. Any repairs, replacement., renewals and additions and any labor performed or material. furnished in, on or about the Premise. shall be performed and furnished in strict compliance with all applicable lava, regulation., ordinances and requirement. ot all duly constituted municipal authorities or other governmental bodies having 4 jurisdiction over the Premises. PROVIDED, NEVERTHELESS, that Lessor shall make all necessary structural and roof repairs required during the term of this Lease, and shall maintain the parking lot and sidewalk. 4.03 In the event Lessee fails to perform its obligation to repair, replace, or maintain as set forth in Section 4.02, after a reasonable time after notice from Lessor of the need for such repair, replacement, or maintenance, Lessor may enter the Premises and make such repairs or replacements, or perform such maintenance or cause such repairs or replacements to be made or maintenance to be performed, at its own expense. Upon Lessor's notice to Lessee of the performance and cost of any maintenance, repairs, or replacements, Lessee shall immediately reimburse Lessor for any reasonable costs incurred by Lessor, together with interest on any such sum at 1 1/2\ per month from the date of the notice until the date paid by Lessee to Lessor. ARTICLE 5. UTILITIES AND TAXES Utility Charg.. 5.01 Lesse. shall pay all utility charges for water, electricity, heat, gas, steam, telephone and all other services or utilities used in and about the leased Premises during the term of the Lea.e. The Lessee shall pay all such charges directly to the utility company or municipality furnishing the service, before the charges shall become delinquent, or shall reimburse Lessor the cost thereof, in the event Lessor chooses to furnish same, as Lessor may direct. aarbag. ...oval 5.02 Le.... .hall be re.pon.ibl. for and .hall pay for the removal of all garbage and rubbi.h from the lea.ed Premi.es dur inl,1 the t.rm of the Lea... per.oll&l Property Tu.. 5.0J Le.... .hall be liable for .11 tax.. l.vied or a......d al,1ain.t per.onal property, furnitur., or fixtur.. placed by Le.... in or on the Pr..ia... If .ny .uch t.x.. for which Le.... i. liable ar. l.vied or .......d .gain.t Les.or or Le..or'. property, and if Le..or el.ct. to pay them, or if the a.....ed value of Le..or'. property i. incr.ased by inclusion of per.onal property, furnitur., or fixtur.. placed by 1..... in the Pr.mi.... and Le..or .l.ct. to pay tha tax.. ba..d on .uch incr...., Le.... shall pay to Le..or on d.lI&nd th.t part of the taxe. for which 1..... i. prill&rily li.bl. under this Articl.. 5 Real property Taxes and Assessments 5.04 Lessor shall pay and fully discharge all real property taxes andl assessments imposed on the leased Premises during the term of this Lease. Rent Tax; Us. and occupancy Tax 5.05 If, during the term of this Lease or any renewal or extension thereof, any tax is imposed upon the privilege of renting or occupying the Premises or upon the amount of rentals collected therefore, Lessee will pay each month, as additional rent, a sum equal to such tax or charge that is imposed for such month, but nothing herein shall be taken to require Lessee to pay any income, estate, inheritance or franchise tax imposed upon Lessor. ARTICLE 6. ALTERATIONS, ADDITIONS, AND IHPROVEHEHTS Improvem.nt of premis.. 6.01 Lessor shall make the following improvements to the Premises: Vanilla box only. Consent of L.ssor 6.02 Lessee shall not make any alterations, additions or improvements to the leased Premises without the prior written consent of Lessor. Consent for nonstructural alterations, additions, or improvements shall not be unreasonably withheld by Lessor, provided such non-structural alterations, additions or improvement. .hall not adversely affect the .tructural soundness of the Premises or reduce the value of any existing structure or improvement. prop.rty of L...or 6.03 All alterations, additions, or improvements mad. by Lesse. shall b.com. the property of Lessor at the termination of this Leas.. Lessor may, how.v.r, require that Le.... remove any or all alterations, addition., and improvements in.talled or mad. by Le.... on termination of the La.... In the .v.nt that Le..or r.quir.. Le.... to remove .uch alt.ration., additions, or improvement., Le..e. ahall repair any damage or in::lury to the Premiaes caused by such removal. 6.04 Le..or, at it. option, may in any ca.. in which it. con..nt i. r.quired pursuant to S.ction 6.02 h.r.of r.quir. Le.... to furnlah it with copies of the applicabl. plan. and .pecification. and any r.l.vant contract betwe.n Le.... and any 6 contractor or supplier. Lessor may also require, at its option and as a condition precedent to giving any approval, (i) a performance bond and a labor and material payment bond, both in form and substance satisfactory to Lessor, given by an independent financially responsible corporate surety, to assure completion of the work in accordance with the plans and specifications, free of liens, and (ii) evidence that each contractor has adequate workmen's compensation insurance and general liability insurance with unimpaired limits of at least $1,000,000 for injury to anyone person or injuries in anyone occurrence and property damage of $500,000, together with a certificate from the insurer to the effect that such insurance may not be canceled or substantially modified without at least 30 days prior written notice to Lessor. ARTICLE 7. TRADE FIXTURES AND SIaHS Trad. Fiztur.. 7.01 Lessee has the right at all times to erect or install shelves, bins, machinery, equipment, or other trade fixtures in, on, or about the leased Premises, provided that Lessee complies with all applicable governmental laws, ordinances, and regulations regarding such fixtures. Lessee has the right to remove all trade fixtures at the termination of this Lease, provided Lessee is not in default under the Lease and that the fixtures can be removed without structural damage to the building. Lessee must repair and restore any damage or injury to the building, structures and improvements now or hereafter erected on the Premises caused by installation or removal of trade fixtures, and all such repairs must be completed prior to the termination of the LeaBe. Any trade fixtures that have not been removed by LesB.e at the termination of this Leas. .hall be deemed abandoned by the Le..ee and .hall automatically become the prop.rty of Lessor. In the event any trade fixture in.tall.d by Lesse. is abandoned at the termination of the Leas., Le.... mu.t pay Les.or any r.a.onabl. .xpens. actually incurred by Le..or to remove the fixture from the Premises, provid.d the fixture is remov.d prior to the entrance of any sub..quent Lessee onto the Pr.mi.... 8iqn. 7.02 Le.... may not in.tall any .ign or about the lea..d premi... without fir.t obtaining the writt.n approval of Le.sor with regard to the .ile, type, .hap., d..ign, color, mat.rial, cont.nt, and ..thod of attachm.nt of the .ign. Les.or'. approval shall not be unrea.onably withh.ld. Le.... au.t, at its sol. .xpen.., remove any signs installed on or about 7 the leased Premises by Lessee and repair any damage done to the leased Premises or the building in which the leased Premises are located or the land surrounding the leased Premises by the installation or removal of the signs. This removal and repair must be completed not later than the termination date of this Lease. ARTICLB 8. HECRANICS' LIENS B.01 Lessee shall promptly pay any contractors and materialmen who supply labor, work or materials to Lessee at the Premises or the Building so as to avoid the possibility of a lien attaching to the Premises. Lessee will not permit any mechanic's lien or liens to be placed on the Premises or improvements on the Premises. If a mechanic's lien is filed on the Premises or on improvements on the leased Premises, Lessee will promptly cause it to be discharged of record by payment, deposit, bond, order of court or otherwise or will pay the lien. If default in payment of the lien continues of record for twenty days after written notice from Lessor to Lessee, Lessor may, at its option, pay the lien or any portion of it without inquiry as to its validity. Any amounts paid by the Lessor to remove a mechanic's lien caused to be filed against the Premises or improvements on the Premises by Lessee, including expenses and interest, shall be due from Lessee to Lessor and shall be repaid to Lessor immediately on receipt of notice, together with interest at the rate of 18l per annum from the date Lessor paid to remove such lien until the date Lessee repays Lessor. Nothing in this Lease is intended to authorize Lessee to do or cause any work or labor to be done or any materials to be supplied for the account of Lessor, all of the sam. to be solely for Lessee's account and at Lessee's risk and expens.. Throughout this Lease the term "mechanic's lien" is u.ed to include any lien, encumbrance or charg. levied or imposed upon the Premise. or any interest therein or income therefrom on account of any mechanic's, laborer. or materialman'. lien or claia or arising out of any debt or liability to or any claim or demand of any contractor, mechanic, supplier, materialman or laborer. U'fICU ,. DflUJIAHCB AHD IHDBJDrIT1' Li&bi1itJ ID.uraDO. 9.01 Le...., at its own expen.e, .hall provide and maintain in force during the t.ra of this Leas., compreh.n.ive 98"eral liability insurance prot.cting Le.sor and Le.... again.t injury or daug. to any person or property occurring in, on or aboUt the Preais.. or any sidewalks, driveways, perki"9 lot. or other area. appurtenant to the Pr..i.... SUch insurance ahall be in the aaount of at le.at $1.000,000 .ingle li.it for injury to . anyone person or injuries in anyone occurrence, and $500,000 for property damage, unimpaired. Such policies shall name Lessor and Lessee as insureds. This insurance is to be carried by one or more insurance companies authorized to do business in Pennsylvania. Rem.dy for Failur. to Provide Insuranc. 9.02 Lessee shall furnish Lessor with certificates of all insurance required by this Article. If Lessee does not provide such certificates on Lessor's delivery of possession to Lessee or if Lessee allows any insurance required under this Article to lapse, Lessor may, at its option, take out and pay the premiums on the necessary insurance to comply with Lessee's obligations under the provisions of this Article. Lessor is entitled to reimbursement from Lessee for all amounts spent by it to procure and maintain such insurance, with interest at the rate of lB' per annum from the date of receipt of Lessor's notice of payment until reimbursement by Lessee. Bold-Barml... Clau.. 9.03 Lessor shall not be responsible for and is hereby relieved from all liability for any damage, expense, cause of action, suits, demands, judgments, and claims of any nature whatsoever, arising from or by reason of any injury to any person or persons or any damage to any property which may arise from any caus. (including, without limitation, n.gligence of L.ssor or its agent., servants or employees), or from present or future structural defects or other conditions in, on or about the Premi.e. or any part thereof or any sid.walk., streets, driveway., rights-of-way or roadways adjacent thereto, or in any manner growing out ot or conn.cted with the use and occupancy of the Premi.e. or any part th.reof by Le.... or any other party during the term of this Leas. or any renewal or .xt.nsion ther.of. Le.... acc.pts and as.um.s such liability and agr... to prot.ct, indemnity and hold Lessor harml.s. against any and all liability, claims, demands, damages, costs, and expenses, including rea.onable attorney.' fee. for the defense of such clai.. and demand., arising froa the conduct or managem.nt of Le....'. bu.in.s. on the pr.mi.e., or it. u.e of the Pr.mi.e. or froa any br.ach on the part of L..... of any condition. of this Lea.., or from any act or n.glig.nc. of Le...., it. ag.nts, contractors, employe.., suble....., conc.ssionaire., or license.. in or about the Premis... In ca.. of any action or proce.ding brought against Le.sor by r.a.on of any .uch claim, Le...., on notice froa Le..or, agr... to defend the action or proc.eding. Thi. .hall not be con. trued a. in any way limiting Le....'. obligation. under Articl. 9. 9 9.04 The insurance policies referred to above shall be underwritten by insut'ance companies with Best's "A" rating or better. Lessee shall deliver to Lessor certificates of all insurance policies on or before the first day of the term hereof and thereafter ten days prior to the execution of any such pOlicy. Lessee shall also deliver to Lessor receipts evidencing payment of all insurance premiums, which delivery shall be at least ten days prior to the date such premiums are due. ARTICLE 10. DAMAGE OR DESTRUCTION OF PREMISES 10.01 If the Premises should be damaged or destroyed by fire, flood, or other casualty, Lessee shall give immediate written notice of the damage or destruction to Lessor, including a description of the damage and, as far as known to Lessee, the cause of the damage. Total Destruction 10.02 If the Premises are totally destroyed by fire, flood, or other casualty not the fault of Lessee or any person in or about the Premises with the express or implied consent of Lessee, or if the Premises should be so damages by such a cause that rebuilding or repairs cannot, in Lessor's reasonable judgment, be completed within ninety (90) calendar days and at a cost not to exceed available insurance proceeds, this Lease shall terminate, and rent shall be abated for the unexpired portion of this Lease, effective as of the date of written notification as provided in section 10.01. partial Destruction 10.03 If the Premises are damaged by fire, flood, or other casualty not the fault of Lessee or any person in or about the Premises with the express or implied consent of Lessee, but not to such an extent that rebuilding or repairs cannot reasonably be completed within ninety (90) calendar days and at a cost not to exceed available insurance proceeds, this Lease shall not be terminated except as provided in Subparagraphs (a) and (b). (a) If the partial destru~tion of the Premises occurs prior to the final six (6) months of the then current Lease term, Lessor shall, at its .ole cost and ri.k, proceed immediately to rebuild or repair the damaged buildings and improvements to substantially the condition in which they existed prior to such dUlllqe; provided, however, that Lessor shall not be required to expend monies in exce.. of insurance proceeds made available to Les.or for such purpose. If the premi.e. are untenantable in whole or 1n part followih9 such damage, the rent payable dur1h9 10 the period in which they are untenantable shall be adjusted equitably. In the event that Lessor should fail to complete such rebuilding or repairs with ninety (90) calendar days from the date of written notification by Lessee to Lessor of the occurrence of the damage, Lessee may terminate this Lease by written notification to Lessor. On such notification, all rights and obligations under this Lease shall cease. (b) If partial destruction of the Premises occurs in the final six (6) months of the then current Lease term, or if any mortgagee holding a lien on the premises refuses to permit insurance proceeds to be applied to the restoration of the Premises, or if the insurance proceeds available for restoration are not sufficient to restore the Premises to substantially its condition prior to the casualty, Lessor need not rebuild or repair the premises and shall notify Lessee in writing of its intention not to rebuild or repair. If Lessor elects not to rebuild or repair the Premises and the Premises are untenantable in whole or in part following such damage, Lessee may elect to terminate the Lease as of the date of Lessee's notice described in Section 10.01 above or to continue the Lease with the rent for the remainder of the Lease period adjusted equitably. Lessee shall notify Lessor of such election within ten (10) days after receipt of Lessor's notice described above. ARTICLE 11. CONDEH!iATIOB Total condemnation 11.01 If the whole of the Premises shall be taken by any public or quasi-public authority under the power of eminent domain, condemnation, or expropriation, or, in the event of a conveyance in lieu thereof, then this Lease shall terminate on the date when title vesta in the condemning authority. Rent shall abate and Lessee shall have no claim against Lessor or the condemning authority for the value of the unexpired term of this Lease. Partial condemnation 11.02 If any part of the Premise. shall be .0 taken or convey.d and if such partial taking or conv.yanc. .hall r.nder the Premi... unsuitable for the busin.ss of the Le...., or if in Les.or'. 801. opinion, it would be impractical or the condeanation proceeds are insufficient to r.store the remaind.r of the Preai.e., th.n the t.t'll of this Lea.. shall cea.. and tet'llinate a. of the date on which title to the Preai... veat. in the condemning authority. Le.... .hall have no claia against Les.or or the cond.aninq authority for the value of any unexpired 11 portion of this lease. In the event such partial taking or conveyance is not extensive enough to rend.r the pr.mis.. unsuitable for the business of Lessee, this Leas. shall continu. in full force and effect except that the r.nt shall b. adjust.d equitably during the unexpired portion of the Lease. L.ssor'. Damag.a 11.03 In the event of any condemnation or taking, whether whole or partial, the Lessee shall not be .ntitl.d to any part of ~l. award. Lesse. hereby .xpressly waiv.. any right or claim to any part of such amount and assign. to Les.or any .uch right or claim to which Lesse. might become .ntitl.d. L.....'. Damag.. 11.04 Although all damag.. in the .v.nt of any condemnation are to belong to the Les.or, Le.... .hall have the right, to the .xtent that it .hall not dimini.h the Le..or'. award, to claim and r.cover from the cond.mning authority, .uch compensation as may be separat.ly award.d or r.cov.rabl. by Less.. und.r the Emin.nt Domain Cod. in Le....'. own right for or on account of, and li.ited .ol.ly to, any co.t to which Le.... might be put in removing Le....'. ..rchandi.., furnitur., fixtures, leasehold improv...nt., and .quip..nt. Teaporarr Taking 11.05 If the cond.anor .hould take only the right to posae.sion for a fixed p.riod of ti.. or for the duration of an ..erqency or other t..porary condition, th.n notwith.tanding anything h.r.inabov. provid.d, thi. Lea.. .hall continue in full force and .ffect without any abete..nt of r.nt, but the amount. payable by the condemnor with r..pact to any p.riod of ti.. prior to the expiration or .oon.r t.rmination of this Le.a. .hall be paid by the cond.mnor to Le.sor and the cond.anor shall be con.idered . .ubt.nant of Le..... Le.sor .hall apply the amount r.ceived trom the condeanor applicabl. to the r.nt due hereund.r n.t at cost. to La.sor for the coll.ction th.reof, or a. much ther.ot a. .ay be n.c...ary tor .uch purpo.., toward the amount due troa Le.... .. r.nt tor the pariod: and, La.... .hall p.y to Lassor any d.tici.ncy betwe.n the a.ount thua paid by the condemnor and the amount of the rent, or La..or .hall pay to Le.... any .xc... of the a.ount of the Avard ov.r the amount of the r.nt. UTtc:tA 11. n...rr. or DII'J.Ut.t' 12.01 The followi", .venta or anyone or eor. of thea .hall be .venta of d.fault unet... t.M. La.... 12 (a) Lessee shall fail to pay any fixed rent, additional rent or other sum payable hereunder; or (b) Lessee shall fail to perform or comply with any of the other terms, covenants, agreements or conditions hereof (and such failure shall continue for more than five (5) days after written notice thereof from Lessor) or (provided, if the default cannot be cured within five (5) days), Lessee shall not be considered in default if Lessee shall, within such period, have commenced with due diligence and dispatch to cure such default, and shall thereafter complete with due diligence the curing of such default; or (c) Lessee shall make a general assignment for the - benefit of creditors, or shall admit in writing its inability to pay its debts as they become due, or shall file a pgtition in bankruptcy, or shall be adjudicated a bankrupt or insolvent, or shall file a petition seeking any reorganization, arrangements, composition readjustment, liquidation, dissolution or similar relief under any present or future statute, law or regulation, or shall file an answer admitting or not contesting the material allegations of a petition against it in any such proceeding, or shall seek or consent to or acquiesce in the appointment of any trustee, receiver or liquidator of Lessee or any material part of its properties; or (d) If within 60 days after the commencement of any proceeding against Lessee seeking any reorganization, arrangement, composition, readjustment, liquidation or dissolution or similar relief under any present or future statute, law or regulation, such proceeding shall not have been dismissed, or if, within 60 days after the appointment without the consent or acquiescence of Lessee, of any trustee, receiver or liquidator of Lessee, or of any material part of its properties, such appointment shall not have been vacated. 12.02 In the event of any such event of default (regardless of the pendency of any proceeding which has or might have the effect of preventing Lessee from complying with the terms of this Lease), Lessor at any time thereafter may exercise anyone or more of the following remedies: (e) Termination of Lease. Lessor may terminate this Lease, without any right by Lessee to reinstate its rights by payment of rent due or other performance of the terms and conditions hereof. Upon such termination Lessee shall immediately surrender posse..ion of the Premi..s to Lessor and Lessor shall immediately become entitled to receive froa Le.... damage. equal to the difference between the a99Teqate rentals 13 reserved for the balance of the term and the tair rental value of the Premises for that period, determined as ot the date ot such termination. (b) Reletting. With or without terminating this Lease, as Lessor may elect, Lessor may re-enter and repossess the Premises, or any part thereof, and lease them to any other person or entity upon such terms as Lessor shall d.em reasonable, tor a term within or beyond the term ot this Lease; provided, that any such reletting prior to termination shall be tor the account ot Lessee, and Lessee shall remain liable tor (a) all minimum rent, additional rent and other sums which would be payable under this Lease by Lessee in the absence ot .uch expiration, termination or repossession, less (b) the net proceed., it any, ot any reletting (including, without limitation, all ropo.....ion co.t., brokerage commissions, legal expenses, attorney.' t.e. and exp.n.es, employees' expenses, reasonable alt.ration co.t., and .xpenses of preparation for such reletting). It the Premise. are at the time ot detault sublet or leased by Lessee to others, Les.or may, a. L.....'. agent, collect rents due tram any .ubtenant or oth.r tenant and apply such rents to the rent and other amount. due h.r.under without in any way affecting Lessee'. obligation to Le..or h.r.under. Such agency, being given for .ecurity, i. her.by d.clared to b. irrevocable. (c) Acceleration of R.nt. Le..or may d.clare rent and all items of additional rent for the .ntir. balanc. ot the then current term immediat.ly due and payabl., tog.th.r with all other charges, payment., costs, and .xp.n... payable by L....e a. though .uch amounts w.r. payable in advanc. on the date the event of default occurr.d. (i) No expiration or t.rmination at thi. Leas. term pursuant to Section 12.02(a) hereot or by operation ot law or otherwise (except a. .xpre..ly provided h.rein), and no reposses.ion of the Premi... or any part ther.ot pur.uant to Section 12.02(b) her.ot or otherwi.. .hall r.lieve Lesse. of its liabiliti.s and obliqation. hereund.r, all of which shall .urvive such .xpiration, termination or r.po.....ion, and Lessor may, at its option, .u. tor and coll.ct rent and oth.r charge. due h.r.under at any ti.. and troa tim. to time a. and when .uch charq.. accrue. 12.03 With re.p.ct to any portion ot the Premise. which i. vacant or Which i. phy.ically occupied by L....., Le..or ..y reaove all per.ons and property th.r.tro., and .tore .uch property 1n a public warehoue. or el.ewhere at the co.t ot and 14 for the account of Lessee, without service of notice or resort to legal process (all of which Lessee expressly waives) and without being deemed guilty of trespass or becoming liable for any loss or damage which may be occasioned thereby. Lessor shall have a lien for the payment of all sums agreed to be paid by Lessee herein upon all Lessee's property, which lien is to be in addition to any Lessor's lien now or hereafter provided by law. 12.04 The parties hereby waive trial by jury in any action, proceeding, or counterclaim brought by either of them against the other on any matters arising out of or in any way connected with this Lease, the relationship of Lessor and Lessee, Lessee's use or occupancy of the Premises, and/or any claim or injury or damage. In the event Lessor commences any proceedings for non-payment of rent or additional rent, Lessee will not interpose any counterclaim of any nature or description in any such proceedings. This shall not be construed, however, as a waiver of Lesseels right to assert any such claims in any separate action brought by Lessee. 12.05 Lessee hereby expressly waives any and all rights of redemption granted by or under any present or future law in the event this Lease is terminated or Lessee is evicted or dispossessed by reason of violation by Lessee of any of the provisions of this Lease. 12.06 In the event of breach or threatened breach by Lesse. of any provision of this Lease, Lessor shall have the right of injunction as if other remedies were not provided for herein. 12.07 No right or remedy herein conferred upon or reserv.d to Lessor is intended to be .xclusiv. of any other right or rem.dy h.rein or by law provid.d, but .ach .hall be cumulativ. and in addition to ev.ry other right or remedy given h.rein or now or her.after .xisting at law or in equity or by statut.. 12.08 Any rent (including charges collectible a. additional r.nt) overdue for a period of aor. than five (5) day. .hall bear inter..t at the rat. of 18' p.r annum until paid. 12.09 If Le.... .hall d.fault in the performance of any covenant required to be performed by it under thia Leas., Les.or ..y perfon the .aII. for the account and at the expan.. of Le...., after fir.t giving notic. to Le.... of it. int.ntion to do so. If Le..or at any tia. i. comp.ll.d to pay, or .l.cta to pay, any .U11 of aon.y' by r.a.on of the faUur. of Le.... to coaply with any proy .ions h.r.of, or if Le.sor i. compelled to incur any .xpen.., includinq r.a.onabl. counsel f..., in 15 instituting, prosecuting or defending against any action or proceeding instituted by reason of any default of Lessee hereunder, the amount of such payments or expenses shall be paid by Lessee to Lessor as additional rent on the next day following such payment or the incurring of such expense upon which a regular monthly rental payment is due, together with interest thereon at the rate of 1B' per annum. 12.10 No waiver by Lessor of any breach by Lessee of any of its obligations, agreements or covenants hereunder shall be a waiver of any subsequent breach or of any other Obligation, agreement or covenant, nor shall any forbearance by Lessor to seek a remedy for any breach by Lessee be a waiver by Lessor of its rights and remedies with respect to such or any subsequent breach. 12.11 Lessee expressly waives any right of defense which it may have based on any purported merger of any cause of action, and neither the commencement of any action or proceeding nor the settlement thereof or entering of judgment therein shall bar Lessor from bringing subsequent actions or proceedings from time to time. THE FOLLOWING SECTIONS SET FORTH WARRANTS OF AUTHORITY FOR AN ATTORNEY TO CONFESS JUDGMENT AGAINST KAKER. IN GRANTING THIS RIGHT TO CONFESS JUDGMENT AGAINST LESSEE, LESSEE HEREBY KNOWINGLY, INTENTIONALLY AND VOLUNTARILY, AND, ON THE ADVICE OF THE SEPARATE COUNSEL OF LESSEE, UNCONDITIONALLY WAIVES ANY AND ALL RIGHTS LESSEE HAD OR MAY HAVE TO PRIOR NOTICE AND AN OPPORTUNITY FOR HEARING UNDER THE RESPECTIVE CONSTITUTIONS AND LAWS OF THE UNITED STATES AND THE COMMONWEALTH OF PENNSYLVANIA. 12.12 LESSEE HEREBY EMPOWERS ANY PROTHONOTARY OR ATTORNEY OF ANY COURT OF RECORD TO APPEAR FOR LESSEE IN ANY AND ALL ACTIONS WHICH KAY BE BROUGHT FOR RENT AND/OR THE CHARGES, PAYMENTS, COSTS AND EXPENSES HEREIN RESERVED AS RENT, OR HEREIN AGREED TO BE PAID BY LESSEE AND/OR TO SIGN FOR LESSEE AN AGREEHENT FOR ENTERING IN ANY COMPETENT COURT AN AMICABLE ACTION OR ACTIONS FOR THE RECOVERY OF SUCH RENT OR OTHER CHARGES OR EXPENSES, AND IN SAID SUITS OR IN SAID AMICABLE ACTION OR ACTIONS TO CONFESS .:rtlDGHENT AGAINST LESSEE FOR ALL OR ANY PART OF THE RENT SPECIFIED IN THIS LEASE AND THEN DUE AND UNPAID, AND OTHER CHARGES, PAYMENTS, COSTS AND EXPENSES RESERVED AS RENT OR AGREED TO BI PAID BY LESSEE AND THEN DUE AND UNPAID, AND FOR INTEREST AND COSTS TOGETHER WITH A REASONABLE ATTORNEY' S COMMISSION or 15'. SUCH AUTHORITY IOHALL NOT BE EXHAUSTED BY ONE EXERCISE THEREOr, BUT .:rtlDGHENT KAY BE CONFESSED AS AFORESAID FROM TIME TO TIME AS OFTEN AS ANY or SAID RENT AND/OR OTHER CHARGES RESERVED AS RENT OR AGREED TO Bl PAID BY LESSEE SHALL FALL out 0. 81 IN ARUARS . l' 12.13 UPON THE EXPIRATION OF THE THEN CURRENT TERM OF THIS LEASE OR THE EARLIER TERMINATION OR SURRENDER HEREOF AS PROVIDED IN THIS LEASE, IT SHALL BE LAWFUL FOR ANY ATTORNEY TO APPEAR AS ATTORNEY FOR LESSEE AS WELL AS FOR ALL PERSONS CLAIMING BY, THROUGH OR UNDER LESSEE AND TO SIGN AN AGREEMENT FOR ENTERING IN ANY COMPETENT COURT AN AMICABLE ACTION IN EJECTMENT AGAINST LESSEE AND ALL PERSONS CLAIMING BY, THROUGH OR UNDER LESSEE AND THEREIN CONFESS JUDGMENT FOR THE RECOVERY BY LESSOR OF POSSESSION THE HEREIN PREMISES, FOR WHICH THIS LEASE SHALL BE ITS SUFFICIENT WARRANT, WHEREUPON, IF LESSOR SO DESIRES, A WRIT OF POSSESSION OR OTHER APPROPRIATE WRIT UNDER THE RULES OF CIVIL PROCEDURE THEN IN EFFECT MAY ISSUE FORTHWITH, WITHOUT ANY PRIOR WRIT OR PROCEEDINGS; PROVIDED, HOWEVER, IF FOR ANY REASON AFTER SUCH ACTION SHALL HAVE BEEN COMMENCED, THE SAME SHALL BE DETERMINED AND THE POSSESSION OF THE PREMISES HEREBY DEMISED REMAIN IN OR BE RESTORED TO LESSEE, LESSOR SHALL HAVE THE RIGHT FOR THE SAME DEFAULT AND UPON ANY SUBSEQUENT DEFAULT OR DEFAULTS, OR UPON THE TERMINATION OF THIS LEASE UNDER ANY OF THE TERMS OF THIS LEASE TO BRING ONE OR MORE FURTHER AMICABLE ACTION OR ACTIONS AS HEREINBEFORE SET FORTH TO RECOVER POSSESSION OF THE SAID PREMISES AND CONFESS JUDGMENT FOR THE RECOVERY OF POSSESSION OF THE PREMISES AS HEREINABOVE PROVIDED. 12.14 IN ANY AMICABLE ACTION OF EJECTMENT AND/OR FOR RENT IN ARREARS, LESSOR SHALL FIRST CAUSE TO BE FILED IN SUCH ACTION AN AFFIDAVIT MADE BY IT OR SOMEONE ACTING FOR IT, SETTING FORTH THE FACTS NECESSARY TO AUTHORIZE THE ENTRY OF JUDGMENT, AND, IF A TRUE ::OPY OF THIS LEASE (AND OF THE TRUTH OF THE COpy SUCH AFFIDAVIT SHALL BE SUFFICIENT EVIDENCE) BE FILED IN SUCH ACTION, IT SHALL NOT BE NECESSARY TO FILE THE ORIGINAL AS A WAR- RANT OF A'l"l'ORNEY. ANY RULE OF COURT, CUSTOM OR PRACTICE TO THE CONTRARY NOTWITHSTANDING. LESSEE HEREBY RELEASES TO LESSOR AND TO ANY AND ALL ATTORNEYS WHO MAY APPEAR FOR LESSEE ALL ERRORS IN SAID PROCEEDINGS AND ALL LIABILITY THEREOF. IF PROCEEDINGS SHALL BE COKKENCED BY LESSOR TO RECOVER POSSESSION UNDER THE ACTS OF ASSEKBLY AND RULES OF CIVIL PROCEDURE, EITHER AT THE END OF THE TERM OR EARLIER TERMINATION OF THIS LEASE, OR FOR NON-PAYMENT OF RENT OR ANY OTHER REASON, LESSEE SPECIFICALLY WAIVES THE RIGHT TO THE J MONTHS' NOTICE AND TO THE 15 OR 30 DAYS' NOTICE REQUIRED BY THE LANDLORD AND TENANT ACT OF 1951, AND AGREES THAT 5 DAYS' NOTICE SHALL BE SUFFICIENT IN EITHER OR ANY SUCH CASE. ARTICLI 13. I.I'ICTI05 BY LEIIOR 13.01 Le.... shall p.rmit Les.or and Les.or'. ag.nt., r.pr...ntatives, and e.ploy... to .nt.r the Premi.e. at all r.asonable ti... tor the purpo.. at inspection, repair or any other purpo.. nece..ary to prot.ct Lea.or'. intere.t in the Preai... or to perform Le..or'. duti.. under this Le.... 11 MTICLB U. ASSIGNMENT AND SUBLEASB Assignm.nt and Subletting by Lesse. 14.01 Lessee may not sublet, assign, encumber, or otherwise transfer this Lease, or any right or interest in this Lease or in the Premises or the improvements on the Premises, without the prior written consent of Lessor, which consent may be withheld in Lessor's sole discretion. If Lessee sublets, assigns, encumbers, or otherwise transfers its rights or interest. in this Lease or in the Premises or the improvements on the Premises without the written consent of Lessor, Lessor may, at its option, declare this Lease terminated. In the event Lessor consents in writing _0 an assignment, sublease, or other transfer of all or any of Lessee's rights under this Lease, the assignee or sublessee must assume all of Lesseels obligations under this Lease, and Lessee shall remain liable for every obligation under the Lease. Aa.iqnaent by L.s.or 14.02. Lessor may assign or transfer any or all of its interests under the terms of this Lease. AJlTICLB 15. _Y.l.~OIlKD'l'AL COHPLIAJlCB 15.01 Without limiting the generality of any provisions set forth .lsewhere in this Leas., Lessee agree. as follow.: (a) Les.e. .hall not (either with or without neglig.nc.) cau.. or permit the escap., dispo.al or r.lea.. of any Hazardous Substanc.., as hereinafter defin.d, on, in or und.r the Premi.... Les... .hall not allow the storag. or u.. of .uch .Ub.tanc.. in any manner not .anction.d by law or by the high..t .tandards pr.vailing in the industry for the .torag. and u.. of .uch .ub.tanc.s, nor allow to be brought onto the Premi... any .uch .Ub.tanc.s exc.pt to u.. in the ordinary cou=s. of Le....'. bU.in..., and th.n only aft.r writt.n notic. i. giv.n to Le..or of (1) the id.ntity of .uch .ub.tanc.., and (2) the ..thod for pr.v.nting the .scape of any .uch .ubstanc.., and Las.or'. prior writt.n approval i. grant.d. Le.... cov.nants and agr... that the Premis.. will, at all ti... durinq its u.. or occupancy ther.of, be k.pt and maintained .0 a. to comply with all nov exi.ting or h.r.att.r .nacted or i..ued .tatut.., lava, rul.., ordinanc.., order., pe1"1lits and r.qulations ot all stat., f.d.ral, local, and oth.r governm.ntal and requlatory authoriti.., agenci.. and bodi.. applicabl. to the Pr..i..., pertaini"9 to environaental ..Uers, or requlat1nv, probibit11\9 11 or otherwise having to do with Hazardous Substances and all other toxic, or hazardous wastes (collectively called "Environmental Laws"). Lessee shall execute affidavits, representations and the like from time to time a~ Lessor's request concerning Lessee's best knowledge and belief without limiting any of the obligations of Lessee under the provisions set forth in this Lease. Lessee agrees to clean up all spills and discharges of Hazardous Substances on the Premises in a manner which shall comply with all applicable environmental laws. Lessee shall notify Lessor in writing of all such incidents. (b) Lessee shall immediately deliver to Lessor a copy of any summons, citation, directive, notice, complaint, letter or other communication from any federal, state or local environmental agency, concerning any alleged violations of any environmental laws or regulations on the Premises, or concerning any investigation or request for information relating to the use, generation, handling, treatment, storage or disposal of Hazardous Substances in connection with the Premises. , (c) Upon request, Lessee shall cooperate in obtaining evidence of compliance with any environmental law, regulation, order of any governmental authority, which cooperation may includ., without limitation, providing affidavits, reports or response. to questions. Lessee shall provide access to the premise., upon r.que.t, for inspections and testing of the Premises regarding the presence of Hazardou. Substances. (d) Lessor and its engineers, technicians, and consul- tants (collectively the "Auditors") may, from time to time a. Lessor d.ems appropriat., conduct periodic t.sts and examinations ("Audits") of the Premises to confirm and monitor Lesse.'. complianc. with the Leas.. Such Audit. shall be conducted in .uch a manner a. to minimize the interference with Le.....s permitted activiti.. on the premi.es; how.v.r, in all cas.s, the Audit. .hall be of .uch nature and .cop. a. shall be r.a.onably r.quired by th.n .xi.ting t.chnology to confirm Le...... complianc. with this Leas.. Less.. .hall fully coop.rate with Le..or and ita Auditor. in the conduct of .uch Audit.. (.) Le...e .hall indemnify, d.fend and hold Lessor, ita partn.r., affiliat.., parent., officer., dir.ctor. and em- ploy..., and other occupant. of the Premi... (coll.ctiv.ly, the .Indemnit....), fr.., harmle.. and indemnified from any .xpen.... penalti.., fin.., claias, demand.. liabiliti.., co.t.. per.onal injuri.., property daaag.. action. and cau... of action, .uit., deba. judg1aent., demands or charq.. What.oev.r which the Indemnit... .hall or ..y incur. or which any such party would oth.rwis. incur, by rea.on of Le...... failur. to coap y with l' this Lease including, but not limited to: (i) the cost of bringing the Premises into compliance with all laws; (ii) the reasonable cost of all appropriate tests and examinations of the Premises to confirm that the Premises has been brought into compliance with all laws; and (iii) the reasonable fees and expenses of the Indemnitees' attorneys, engineers, and consultants incurred by the Indemnitees in enforcing and confirming compliance with this Lease. (f) The covenants contained in this Article shall survive the expiration or termination of this Lease, and shall continue for so long as Lessor and its successors and assigns, and the Indemnitees, may be subject to any expenses, obligations, penalties, fines, claims, demands, liabilities, costs, personal injuries, property damage, actions and causes of action, suits, debts, judgments, demands or charges whatsoever against which Lessee has agreed to indemnity the Indemnitees under this Lease. (g) All terms, except as otherwise defined herein, shall have the meanings as set forth in the Lease. For purposes hereof, Hazardous Substances shall mean (i) any "Hazardous Substance", "Pollutant" or "Contaminant" (as defined in Section 101(14) and (33) of the Comprehensive Environmental Response and Compensation and Liability Act ("CERCLA"), 42 U.S.C.A. section 9601(14) and (33)) or 40 C.F.R. Part 302; (ii) any hazardous substance, hazardous waste or solid waste, as those terms are defined in applicable state or local law; (iii) any substances containing petroleum as that term is defined in Section 9001(8) of the Resource Conservation and Recovery Act, as amended, 42 U.S.C.A. Section 6991(8) or 40 C.F.R. 280.1; or (iv) any other substance for which any governmental entity requires special handling in its collection, storage, treatment or disposal. (h) Le.sor represents and warrants that, to the best Of Le..or'. Itnowledgel (1) No notice has been given to Lessor, by any governmental authority or any person claiming any violation of, or requiring compliance with, any federal, stata or local statute, ordinance, regulation or other raquir_ent of an Itnvironaental LaV, or d...ndinq r_ediation ot or payment of contribution tor any environaantal contamination or any damaga. attributable thereto; (2) There are no underground storage tanks or saptic srst..., located at the Preais..; (3) No inveatiqation, adainistrative ordar, con.ent order, lien, superlien or .gr....nt, litigation or .ettl...nt with rulMlCt to any Ilalardoua SUbstance of anI kind located on, &beNt or under .U or any portion of the Prell ... exists, 18 pend1l'lCJ. pcopotled, tbrutened or atltic1p.ted. n (i) Lessor shall defend, indemnify and hold Lessee harmless from and against any liability, loss, damage, costs and expense suffered, incurred or threatened as a result of any breach of any representation or warranty hereunder or as a result of notice, complaint, claim, demand, suit, order, judgment or any legal requirement, including without limitation of the generality of the foregoing, court costs, attorney's and consultant's fees, environmental clean-up costs, natural resources damages, fines, penalties and damages to persons, personal property, real property and business enterprises, arising out of or relating to an environmental condition on the Premises caused by Lessor. ARTICLB 16. RULES AND REGULATIONS 16.01 Lessor shall have the right to make reasonable rules and regulations for the purpose of ensuring or enhancing the safety, care, cleanliness, maintenance, or preservation of the Premises and common areas, as well as for the purpose of preserving good order in and on the Premises and common areas. (specifically including but not limited to the allocation and identification of parking spaces among tenants.) Lessee and its officers, employees, agents, and invitees agree to be bound by any such rules and regulations on receipt by lessee of written notice from Lessor setting forth same, and any changes, additions and/or deletions. Lessee shall be responsible for the compliance of its officer., employees, and invitee. with all such rules and regulations. ARTICLB 17. CONJ)I'l'IOB PUCEDEN'1' 17.01 This Lease is expressly conditioned upon the acquisition of fee simple title to the premises by Lessor. Should such settlement not occur for any reason, Lessor shall return all said rent payments to Lessee, and neither party shall have any liability to the other hereunder. AR'l'ICLB 18. Ja8('ft.T.~U8 18.01 All notices required under this Lease shall be effectively given only if by certified mail, registered mail, or nationally recognized overniqht courier service, addre.sed to the proper party, .t the followinq .ddre....: Lessor Paul L. Ito.tick 41 C.orqe Circle M.cbanIcaburq, PA 17055 W. Scott Staruch, Esquire 20 Irfotd Road. SuIte 21. ~yn.. PA 1704' with. copy tOI, 21 Lessee Francesco Failla 663 wyndamere Road Lewisberry, PA 17339 with a copy to: Either party may change the address to which notices are to be sent by giving the other party notice of the new address in the manner provided in this Section. parti.s Bound 18.02. This Leas. shall be binding on, and inure to the benefit of, the parties to the Lease and their respective heirs, .xecutors, administrators, legal representatives, successors, and assigns when permitted by this Lease. PelUl8Y1VlUlia Law to Apply 18.03 This agreement shall be governed by and construed under the laws of the Commonwealth of Pennsylvania. Legal construction 18.04 In the event anyone or more of the provisions contained in this agre..ent ahall tor any reason be held by a court ot comp.tent jurisdiction to be invalid, illeqal, or un.ntorc.abl. in any respect, such invalidity, ill.gality, or unentorcubllity shall not attect any other provision ot the agr.ement, .nd thb agr....nt shall be constru.d .s it the invalid, ill.qal, or un.ntorc.abl. provision had n.ver be.n included in this .gr....nt. Prior &gr...enu SUpers.eld 18.05 Thi. Laas. constitut.s the only .gr....nt between the Le.sor .nd Leas.. and super.edes any prior understandin9s or writt.n or oral agr....nu betwe.n the partie. r.spectin9 the subject aatt.r of this Leas.. Menaent 18.06 No aaendaent, aodification, or alteration of the teraa of thb Lees. shall be bindi", un1... it 18 in writin9, dated .ubII.ent to the dau of thia Lus., and duly lIftC\Ited bf the Leaaor and Le..... 2J Attorneys' Pees and Costs 18.07 In the event that at any time during the term of this Lease either Lessor or Lessee shall institute any action or proceeding against the other relating to the provisions of this Lease or any default of this Lease, then the unsuccessful party shall reimburse the successful party for reasonable attorneys' fees and expenses incurred to enforce the Lease, Unavoidable Delay 18.08 Except for the payment of rent, utility charges, and other sums of money to be paid under this Lease, neither Lessor nor Lessee shall be required to perform any term, condition, or covenant in this Lease so long as such performance is hindered or prevented by unavoidable delays. For purposes of this Section, unavoidable delays shall be defined as natural disasters; strikes, lockouts, or labor disputes; governmental regulations, restrictions, or controls; enemy or hostile government action; civil riots; fire, floods, or nuclear accident; or any other cause not reasonably within the control of Lessor or Lessee and that by the exercise of due diligence Lessor or Lessee is unable, wholly or in part, to prevent or overcome. Time of Bssence 18.09 Time is of the essence of this agreement. QUiet EnjoJllent 18.10 Lessee, upon paying the rent and upon ob.erving and keeping the covenants, agreements and conditions of this Lea.a on it. part to be performed, shall quietly have and enjoy the Premi.e. during the tera of this Lease without hindrance or mola.tation by Lessor or by anyone claiming through or under Lessor, subject to the terms, covenant., conditions and excaption. herain contained, and subject a180 to any restric- tions, easements or other agreement. of record. This covenant i. given in lieu of any implied covenant of quiet enjoyment. .alation.hip of Parties 18.11 Tha relationship between the parties hereto shall be that of Laasor and La.... and nothiJ1C) contained herein shall be construed to changa or BOdify that relationship so a. to make Les.or and Les.ee partner., joint venturers, or debtor and creditor. :n Requirements of Public Authoritie. 18.12 Lessee will promptly and faithfully comply with, conform to, and obey all present and future laws, ordinances, rules, regulations and requirements of every duly constituted governmental authority or agency having jurisdiction over Lessee and/or the Premises or any part thereof. B.toppel certificate 18.13 Lessee agrees to execute and deliver to any mortgagee or purchaser of the Premises, immediately upon request, an "estoppel certificate" stating the amount of rent due from Lessee hereunder, that this Lease remains in full force and effect without modification, and that Lessee has no set-offs against rent; or, if this Lease has been modified, or if Lessee has any set-offs against rent, the exact nature of the modifications and the precise amount of the set-offs. Ro Brokers 18.14 Lessee represents and warrants to Lessor that Lessee has had no dealings, negotiations or consultations with respect to the Premises or this transaction with any broker or intermediary and that no broker or intermediary called the Premises to Lessee'. attention for lease or took any part in any dealing., negotiations or consultation. with respect to the Premises or this Lease. In the event that any broker or intermediary claims to have subaitted the Premises to Lessee, to have induced Lessee to lease the Pr8lllise. or to have taken part in any dealings, negotiations or consultations with respect to the Premis.. or this Leas., Lessee will be responsible for and will indemnifY, defend and save Lessor harmless from and against any co.t., fe.. (inclUding without limitation, attorney'. fees), expenses, liabilitie., and claims incurred or suffered by Lessor as a result thereof. JIortVaq.. 18.15 Le.... accepts this Leas. subject to any deed. of tru.t, .ecurity inter..ts. or mortgage. that might now or later constitute a li811 on the Premi.... Le.... sust. on d8lUlnd. execute any inst:ruaents, rel...... or other docuaents that are required by any aortgagee for the purpo.e ot subjecting and 8Ullordinatlng thi. lAaH to the Uen ot any such deed of trust, .ecurity intere.t, or IIOrtga98 constituting a lien on the Preai.... )4 . . Parties Bound 18.16 Subject to the provisions of Article 14 hereof, this Lease shall be binding upon the parties hereto and shall be binding upon the inure to the benefit of and be enforceable by their respective successors and assigns. This Lease is expressly conditioned upon the approval of its terms and conditions by Lessor's mortgagee, Dauphin Deposit Bank and Trust company, of Harrisburg, Pennsylvania. Lessee agrees to execute a consent to the Assignment of Leases executed between Lessor and its said mortgagee. waiver of custom 18.17 Lessor shall have the right at all times, any law, usage or custom notwithstanding, to enforce strictly the provisions of this Lease, and the failure of Lessor at any time or times strictly to enforce any provision hereof shall not be construed as having created a custom or waiver in any way contrary to the specific provisions of this Lease or as having in any way or manner modified this Lease. certain H.anings; Liaitation of Liuility 18.18 (a) The word "Lessee" as used in this Leas. shall be construed to mean tenants in all cases where there i. more than on. tenant (and in .uch case the liuility of such tenanta .hall be joint and several), and the necessary grammatical change. required to make the provision. hereof apply to corporation, partnerShip. or individuals, men or women, shall in all ca.e. be assumed as though in each case fully expressed. Each provi.ion hereof shall extend to and shall, a. the ca.e may require, bind and inure to the benefit of Le..ee and ita .ucc..sors and as.igns, provided that this Lea.. shall not inure to the benefit of any assigne. or successor of Les.e. except upon the express written consent of Lessor a. herein provid.d. (b) Th. term "Les.or" a. used in this Leas. means the fe. owner of the Premis... In the event of the voluntary or involuntary tran.fer of .uch own.rship or right to a .ucces.or in interest of Les.or, Les.or .hall be freed and r.li.v.d of all liability and obligation hereunder which shall thereafter accru. and Le.... .hall look .olely to such .ucce..or in intere.t for the performance of the covenant. and obligations of the Le..or her.under which .hall ther.after accrue. Th. liability of Les.or and ita .ucc...or. in inter..t, under or with r..pect to thi. Lea.e, .hall be strictly liaited to and enforceable only out of ita or th.ir inter..t in the Pruise. and th. tract of real e.tate of which the Preais.. are a part. and shall not be 25 enforceable out of any other assets. No mortgagee or ground lessor which shall succeed to the interest of Lessor hereunder (either in terms of ownership or possessory rights) shall: (1) be liable for any previous act or omission of a prior Lessor, (2) be subject to any rental offsets or defenses against a prior Lessor, (3) be bound by any amendment of this Lease made without its written consent, or by payment by Lessee of rent in advance in excess of one (1) month's rent, (4) be liable for any security not actually received by it, or (5) be liable for any initial construction of the improvements to be made to the Premises or for any allowance or credit to Lessee for rent, construction costa or other expenses. Subject to the foregoing, the provisions bereof sball be binding upon and inure to the benefit of the successors and assigns of Lessor. captiou 18.19 The captions contained berein ere for the conve- nience of the parties only. They do not in any way modify, amplify, alter or give full notice of the provisions hereof. ~_~ck vsrV; .~ v-- /<; a ~: // .,/ t,..... Francesco f:\wpwin\kostiCk2 26 .1 .. _.:.- ~ ~ ,~ .~ 19 F:' C>>~ ~io ,yII e ,.. ~: 0 ~ " . , 'I Q. ;) III M... 0... .... 4111I -.."" SOCl\ -u;, oil... ",J ..:llll_ .... 0... C.! ... c ... Co i :: 'C -' Do .. 1II U C .... III .. ....to ... ... ... o. 1II (II CD _ _ II a. ... _. III u: a .!.!~ y o . Go I %, II U ., g I Go , . III " ~ t I ~ . 0 ... I il I I t (") .D ,-, ( -.I II ... .. ,- ... ,: ; ,.,. r - :.1 .;~ +- ~. .j ~. 0-" ~ t:. .... ., -', [ ! J - :<.) ~ ., , ..... CV . . o- J ';po ~ , .n . ~ , ::J :..J ~ ...;. 'f\ ~~ ~. (1 ) PAUL L. KOSTICK t/a PLK PROPERTIES, Plaintiff IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA v. : . . No. . . : VINCENZO MARCHIANO and GUISEPPE RUSSO, Defendants Notice under Rule 2913.3 of Judgment and Execution Thereon Notice of Defendants' Rights To: Vincenzo Marchiano and Guiseppe Russo A judgment for possession of real property has been entered against you and in favor of the plaintiff without prior notice and hearing based on a confession of judgment contained in a lease allegedly executed by you. The court has issued and the sheriff has served a writ of possession which directs the sheriff to remove you from possession of the real property. You may have legal rights to defeat the judgment or to prevent your being relloved from the property or to regain possession of the property if you have been removed, if you cSid not voluntarily, intelligently and knowingly give up your constitutional right to notice and hearing prior to the entry of judqwent or if you have defenses or other valid objections to the judqllent. ANY PETITION SEEXINC RELIEF FROM THE JUDGMENT AND TO REGAIN POSSESSION MUST BE FILED WITHIN THIRTY (30) DAYS AFTIR THE DAT! ON WHICH THIS NOTICE IS SERVED ON YOU OR YOU MAY LOSI YOUR RIGHTS. F \1\Fl11'1t\~1'1nl'i,m':I."\"Ji.1I1.lII'lI \" 1M PAUL L. KOSTICK t/a PLK PROPERTIES, plaintiff IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA . . . . . . v. : No. VINCENZO MARCHIANO and GUISEPPE RUSSO, Defendants . . PETITION TO STRIKE JUDGMENT REQUEST FOR PROMPT HEARING I hereby certify that I did not voluntarily, intelligently and knowingly give up my right to notice and hearing prior to the entry of judqment. I petition the court to strike the judgment on this ground and request a prompt hearing on this issue. I verify that the statements made in this Request for Hearing are true and correct. I understand that false statements herein are made subject to the penalties of 18 Pa.C.S. S 4904 relating to unsworn falsification to authorities. Notice of the hearing should be given to me at street Addre.. City, State Telephone Nuaber Dauch Defendant (e) f' \(""'~ \1lw>>."-!I'f'If:l.''''lUJlt'!l!tll " 1M D i tll (? "t1 A.l (") U,J c Q - n ,:- _J - ..0 -f:- :h -~..'"" r- oo $= {I' C - . ..-. '.01 . ~ ",.' - - 8 ~ ti .:'.:'" ~ ~g8 Ul ~ - !1,~,' - (; L'\ Ol ;:",;: u, '11 s.J ..-" . . () -a. :( B ' ~..., ...... .h 1/).... -a. rl ..,... ~...' ~~.~ 0 U\ .. ~ _ I J- 00 .-~. '.. :J uM ' . j- -a. .J .. \.1\ ~~'. ':::I ...:i Q... -' ~ . '0 c 1 ~ ~ PETER J. RUSSO, ESQUIRE PA Supreme Court ID: 72897 61 West louther Street Carlisle, PA 17013 (717) 249-2721 Attorney for Defendant Russo PAUL L KOSTICK tie PLK PROPERTIES, PlaIntiff IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA . . . . v. NO. 97-4452 . . V1NCENZO MARCHIANO and GUISEPPE RUSSO, o.randanta . . . . Al'ID NEW _lTER AND NOW, COMES o.t.ldant, Gulseppe Russo, by and through his atIomey, PM J. Russo and answers Plaintifr's Complaint In ConfeIsion of Judgmft for Ejectment and avers the following In support ~ t. kll\6ld. 2. Admitted. 3. MwtlhcL 4. Denied. Defendant lacks sufficient knowledge or information so as to form a belief as to the truth or falsity of the averment in paragraph number four. By way of further response, Defendant admits that attached to Plaintiff's complaint was a property description and avers that said description is a written document which speaks for itself. 5. Denied as stated. Defendant lacks sufficient knowledge or information so as to form a belief as to the truth or falsity of the averment in paragraph number five. By way of further response. Exhibit B of Plaintiff's complaint appears to be a copy of a lease executed by Francesco Failla but as a written document. said exhibit speaks for itself. 6. Denied as stated. Defendant lacks sufficient knowtedge or information so as to form a belief as to the truth or falsity of the averments in paragraph number six. By way of further response, Exhibit B of Plaintiff's complaint appears to be a copy of a lease executed by Francesco Failla but as a written document, said exhibit speaks for itself. 7. Denied as stated. The contents of the averments In paragraph number ....... are related to a written document which speaks for Itself and any lnterprWdional gloss placed on said documant by PlaIntiff is denied. 8. DanIed. The ....-mants set forth in paragraph eight contain Itatements which do not r.quire a response. In the evw1t any portion of the averm<<1ts in par1lgraph eight .. dllfMd faetua~ 0 _blldant Ruuo IlIc:kI adllciellt ~ or lnformdcn 10 IS to farm a beW IS to the tnJth or falsity 01 the awrmant In pIlfIQfaph eIgtd. 9. Denied as stated. The averments set forth In paragraph nine contain conclusions of law to which a response is not required. Additionally, the Lease Is a written document which speaks for itself and any interpretational gloss placed on said Lease by Plaintiff is denied. 10. Denied. The averments set forth in paragraph ten contain conclusions of law to which a response is not required. In the event any portion of the averments in paragraph ten are deemed factual. Defendant Russo denillS the allegation that he was in default of the terms of the Lease by failing and refusing to make the monthly rent payment in a timely manner as Plaintiff granted Defendant Russo an extension of time in order to submit August's rent payment which extended beyond August 15, 1997, the date which Defendant Russo attempted to remit the required rent payment to Plaintifl's agwd. Seid paymn wu rejected by Plaintlfts agent prior to the initiation of any suit 11. DenIed. The averments set forth in paragreph eleven contain statements which do not require a respclnSe. 12. Denied. The averments HI forth in peragraph tnt.. contain ....Tlenta Whidt do not require a response. 13. AdI. dth.d. 14. Denied. The averments set forth in paragraph fourteen contain conclusions of law to which a response is not required. By way of further response, Plaintiff failed to comply with the provisions of the warrant of attorney as set forth in the lease agreement. Additionally, the Lease is a written document which speaks for itself and any interpretational gloss placed on said Lease by Plaintiff is denied. WHEREFORE, Defendant demands a judgment dismissing this suit in his favor and against Plaintiff. NEW MAma ,. Defendant, Guiseppe Russo never signed a lease agreement with the Plaintiff which contained a confession of judgment clause or warrant of attorney. 2. Defendant, Guiseppe Russo was, at an times relevant hereto, without benefit of advice and direction from legal counsel. 3. At various times, including, but not timited to, August of 1997, Plaintiff waived the rights provided in Article 2 of the subject Ieaae agreement by granting Defendant Russo an extension of time in order to rwnit rent payments. 4. On August 15, 1997 at 1 :00 p.m. o.t.ndant remitted to the PIaintItf the sum of One Thousand Two Hundred Fifty ($1,250.00) 00llIn, in lawful money of the UnIttd StabII. which is the amcult d<<nanded in his ~ 5. The remitted ~ on August 15. 1997 at 1:00 p.m. WIll ~ by Pl.iltMr. agert HMn Wood AFFIDAVIT OF GUISEP~I; RUSSO The undersigned Affiant, being duly sworn according to law and possessed with personal knowledge, information. and belief as to the matters set forth herein, hereby deposes and says as follows: 1. I am a named defendant in Kostick v. Russo. et ai, 2. I operate La Fontana Restaurant in Lemoyne, Pennsylvania 3. My rent is generally due on the first of the month. 4. In past months, Paul Kostick has granted me more time to pay the rent if I cannot on the first of the month. 5. In August of 1997. Paul Kostick agreed to give me additional time so that I could pay August's rent. 6. Sometime at the end of the first week of August, Paul Kostick agreed that I could pay the rent by the 20th of August. 7. At 1:00 p.m. on Monday, August 15. 1997. I tried to pay my rent to Helen Wood. S. She would not take the rent and told me that PIUI'I tawyer said she (;Q iJdn't take the rtnl 9. I askad her to gIw me a note to show that I tried to pay the rW'It. I gave that note to fff'/ Iaw/W '0 Later I found out I was belrlQ sued bee... I dldr11 pay the rtnl 11. I came to this country from Italy several years ago and I started a family and a business. 12. I have never been to school in the United States. 13. At times, I have difficulty with English, especially with large words and legal tanns. 14. When I agreed to operate La Fontana I did not have a lawyer to represent me. Everyone told me that I didn't need a lawyer. 15. I never knew that I gave up any rights when I took over the business. 16. No one ever explained to me that I gave up any rights when I took OYW the business. 17. The foregoing statement, consisting of sixteen (16) numbered paragraphs, having been made under penalty of law, is true and correct to the best of my knowledge. information an belief. This Aflidavit is made subject to the penalties of 18 Pa. C.S. S4904 relating to unsworn falsification to authorities. - oc.: 'l....... 1av. &.~... 27. '997 ..JJ l_ _c ~......'-& ClII.., .. 1. ' ""0 III .. ..~ ~ONIft.'a_ ,- .!' ,- . , c -. ." " ~ "_J I .. -'~ -, GLLIHpfL ~t..loS 0 ~ .).. () J?2 ad~.. ct- S"'-I R.I f -J-. J..t_rnoYAJ (, PA l?dlJ 0 \0 0 <:: .... " ? -Ct":' !: --I r..,--: :i \::'l ,;:. ~ :-... ... ~. ~ t N -j~ (: -, N -, r;; :;-.. ..^.." .,: ) ,~" (: --, ,", g;; 'm ~:" ~ -J ~ ~ -. (l) , " . . ~:: i ;; :j,;;; ,........' , 3. The lease agreement which is the document which contains the warrant of attorney was not executed by either Defendant in this matter. 4. The relevant lease agreement was executed by the Plaintiff and Francesco Failla and Vincenzo Mazzamuto on or about November 19, 1993. A true and correct copy of said lease agreement is attached hereto as Exhibit A. 5. Said lease agreement provides that Lessee shall pay Lessor One Thousand One Hundred Fifty ($1.150.00) Dollars per month as rent. 6. On or about April 19, 1996. Defendants Russo and Marchiano signed a Ietler which purported to allow Defendants Russo and Marchiano to assume the lease signed by Francesco Failla and Vincenzo Mazzamuto. A true and correct copy of said letter is attached hereto as Exhibit B. 7. At the time Defendant Russo assumed said lease agreement. he was urnpresented by counsel. A true and correct copy of Defwldant Russo's Alfidavit is attached heleto as Exhibit C. 8. 0tMndant Russo, a resident of the United States who was born In Italy and who has nevw had any formal educ:ation within the United States, did not and could not ~ mq of the provisions of the subject lease agrMmeld, 1nc:Iuding, but not Iirnited to the COt ,1..11on of judgmIIlll and WlImIf1t of ettor'n4ty tlel..... A true and correct c::opy of Oetw ldflnt Rusao't M4hIt it atIaC:tIed ... eta as EJttWbIt C. 9. At 1:00 p.m. on August 15, 1997, Defendant Russo attempted to pay Helen Wood, General Manager of PLK Properties, the rent which was due pursuant to the subject lease agreement. 10. Said rental payment was refused by Plaintiff's agent. A true and correct copy of a letter from Ms. Wood is attached hereto as Exhibit D. 11. Plaintiff filed the confession of judgment after Defendant Russo's attempt to make the required rent payment. 12. Defendant, Guiseppe Russo did not voluntarily, intelligently and knowingly give up his rights to notice and hearing prior to the entry of a judgment against him. 13. Defendant Russo's petition is timely, he has averred and produceclevidence that would support a meritorious defense to the allegations raiSed by Plaintiff complaint In Defendanrs Answer to Plaintiff's Complaint in Confession of Judgment for Ejection. A true and correct copy of said pleading is attached hereto as Exhibit E. 14. Defendant Russo has been Informed by counsel and beUeves. and theJ8fore lMI1l that the said warrant of attorney ia not sutficIent In law to II.lthorize the prothonotary to enter the said judgment, ~. IS8 no judgment was COl'lfesMd In h said warrant and b--IMIt contains no warrant tot an atlooney at law or other 1*10I. to confesa judgment IUI'IIcHlnt In law. K08TICX/I'RUCZSCO J'AILU LEUZ TULZ 01' CCDlTD'l'S ARTICLE 1. TERM . . . . . . . . . . . . . . . . . 1 ARTICLE 2. REH'l' . . . . . . . . . . . . . . . . . 2 ARTICLE 3. USE OF PREMISES. . . . . . . . . . . . 3 ARTICLE 4. REPAIRS AND MAINTENANCE. . . . . . . . 4 ARTICLE 5. tJ'l'ILI'l'J:ES AND TAXES. . . . . . . . . . 5 ARTICLE 6. AL'l'ERA'l'J:ONS, ADDITIONS, AND IMPROVEMENTS . . . . . . . . . . . . 6 ARTICLE 7. TRADE FIXTtJRES AND SIGNS . . . . . . 7 ARTICLE B. HECBANJ:CS' LIENS . . . . . . . . . . . a ARTICLE 9. INSURANCE AND INDEMNITY. . . . . . . . a ARTICLE 10. DAKAGE OR DESTRUCTION OF PREMISES. . . 10 ARTICLE 11. CONDEKNA'l'J:ON . . . . . . . . . . . . . 12 ARTICLE 12. EVEN"1'S OF DEFAULT. . . . . . . . . . . 13 ARTICLE 13. INSPECTION BY LESSOR . . . . . . . . . 17 ARTICLE 14. ASSIGHHENT AND SUBLEASE. . . . . . . . 11 ARTICLE 15. ENVDlORHEHTAL COHPLIAHCZ . . . . . . . 11 ARTICLE 16. RULES AND R!GULA'l'J:ONS. . . . . . . . . 21 ARTICLE 17. CONDITION PRECEDZIIT. . . . . . . . . . 21 ARTICLE 11. IIISCIIUHIOOS. . . . . . . . . . . . . 21 LEASE This Lease is made and entered this 19th day of November, 1993, between Paul L. Kostick, referred to in this Lease as Lessor, and Francesco Failla, referred to in this Lease as Lesse.. In consideration of the mutual covenants and agreements set forth in this Lease, and other good and valuable consideration, Lessor leases to Lessee, and Lessee leases from Lessor, retail space at the west end of 420 Market Street, Borough of Lemoyne, cumberland County, Pennsylvania, and more particularly described on Exhibit A attached to this Lease, and referred to herein as the Premises. ARTICLE 1. 'l'DH Term of L.... 1.01 'I'he "Commencement Date" of the term of this Lease shall be the later of DeCember 1, 1993 or the date when the Premises and the improvements required to be constructed by Lessor under Paragraph 6.01 hereof shall have been Substantially completed; provided that if Lessee shall take possession of the Premises or any portion thereof prior to either of the foregoing dates, then the COlIIlDencement Date shall be the date on which Le.see takes such possession. Unless sooner terminated in accordance with the terms hereof, the term of this Lea.e shall end without the necessity for notice frOlll either party to the other at 12:01 a.m. local time on the third (3rd) anniversary of the first day of the first full calendar month during the term (her.in called the "Expiration Date"). When the date of commenc8Jllent of the term of this l.a.. i. establish.d, Le..or and Lea.ee shall prOlllptly ex.cute a lIemorandua acknowledqinq aUle. OptiOD to ~8D4 'fUa 1.02 Le.... ha. the riqht to ext.nd this Lea.e beyond the expiration date provided in Section 1.01 on the followinq teras and conditions: (a) Should Le.... fully perform all of the teras and conditions of this Lea.., Le.... may .xt.nd the tera of thia Lea.. for a period of three (3) y.ar., with the extend.d tera to be9in on the day following the expiration date of the Leu. tera .pecified in Section 1.01. However, if at the date of expiration of the Oriqlnsl ten Le.... i. in d.fault beyond any qrac. period provided in thi. Lea.. for the performance of any of 1 the terms or provisions of this Lease, or any event has occurred which with the giving of notice or passage of time or both could constitute a default under this Lease, Lessee's exercise of any option exercised and shall b. null and void. All of the terms, covenant., and provision. of this Lease shall apply to all ext.nd.d Leas. tarma except that the rent for each such extended term shall be adjUsted as set forth in Section 2.01 hereof. (b) Le.... may exerci.. each option to extend this Leas. by giving to Lessor notic. of its intention to do so not later than six (6) months prior to the expiration of the initial Leas. term. To constitut. .ff.ctiv. notic. of an intention of .xercis. an option under this Laas., the notic. must be s.nt by certifi.d or r.gister.d mail or nationally recognized overnight courier to Lessor at the addres. and in accordance with the procedures provided in S.ction 16.01 of this Lease and must be postmark.d no later than the date provided in thi. Articl. for Le....'. exerci.. of the option. Holdover 1.03 If Le.... holds over and wrongtully continue. in Pos....ion ot the Prud..s atter expiration ot the term of this Lea.. or any extension ot that term, Les... will be d....d to be occupyinq the Prud... at .utteranc. frOll month-to-month t.nancy, without limitation on any of Le.sor's rights or remedies her.under and .ubj.ct to all of the t.rms and conditions of this Leas., except that the fixed rent .hall be incr.as.d to twice the fixed rent paYable for the last month of the term of this Laase prior to the holdover. DellVV7 of PO....sioa 1.04 If Le..or i. unabl. to deliVer actual po.....ion of the l....d Preai... on the commencem.nt date of the t.rm for any r.a.on beyond Las.or'. control, inClUding without limitation, becau.. the building has not be.n .Ufficiently complet.d to make the Preai... r.ady tor occupancy, or if r.pair. or improvement. to be perfOrmed by 1...01', are not COllpl.t.d becau.. of the hold1nq over of . pr.vioW! occupant, the Le.sor sball not be liable in daaag.. to the Le...., and during the period that the l...or i. unable to give po.....ion, no rent .hall accru.. No .uch failure to give po.....ion lIball in any other r..pect aff.ct the validity of thia 1.... or any Obligation of Le.... ber.under. AaUCLI I. Uft rUed aut :1.01 Las... avreu to pay to Le..or the .U11 of One '1'bousand One RundrecI rifty ($1,150.00) Dollars per aonth in :I advance on or before the first day of each month, throughout the term of this Lease as the fixed rent. The first llnd last monthly rent installments shall be paid at the signing of this Lease. Rent for any fractional month at the beginning of the Lease term shall be prorat.d on a per diem basis. At the conclusion of the third full Lease year and every Lea.. y.ar th.reafter, should the Lease term be extended, the fix.d rent for the Premises shall be adjusted annually, provid.d that the fixed rent shall never be less than One Thousand One Hundred Fifty ($1,150.00) Dollars per month, by applying fluctuations in the Consumer Price Index as follows: (a) 'l'b. Consumer Pric. Index for the purposes of this Leas. shall be the Consumer Price Index for All Items for All Urban Consumers (unadjusted), published by the Bureau of Labor statistics of the Unit.d States Department of Labor. For All Items, 1982-100. If the Consumer Price Index ceases to be published by the United States Department of Labor, Bureau of Stati.tics, then the calculation shall be baaed on the closest .ucce.sor index aa identified by the United States Department of Labor. If no such succes.or exists, the calculation shall be based on an index that is mutually aqre.d betw.en Lessor and Lea.... (b) 'l'b. Bas. Oat. shall be the month of october, 1993. (e) 'l'be adjust.d rent shall be determin.d by multiplying the fix.d rent by a fraction, the num.rator of which ahall be the Consumer Pric. Index for October of the third full Leas. y.ar and of each Leas. y.ar th.r.after (th. "Comparison Date"), u the case may be, and the denominator of which shall be the COn&wlar Price Index for the Bas. Date. The resulting sum, it qr.ater than the fixed rent, shall be the adjust.d rent payable monthly for the following Leu. year. MrlCU 3. VII 01' HIla... ,ami 1:t:lId V.. 3.01 La.... may us. the Premis.s to operate and conduct a rutllurant and taIt.-out busin.s., and tor no other purpos., but in any event only in complianc. with any applicabl. law., rul.., requlatlons, statut.. and applicabl. ordinanc.. now or hereafter in .ffect. Le.... is responsible to procur. all licena.., peraita and approvala required to conduct ita bwline.. on the Prai.... Le.......y not us. the Preai... for any other purpoae without the prior written consent of Les.or which consent uy be vl\:bbeld tor eny rea.on or no reason, in the sol. di.cret1on of T ",,,or. 3 ...t., Hui.ano., or Ill.gal D... 3.02 Le..e. shall not use or permit the us. of the Premises in any manner that results in waste of the Premises or constitute. a nuisance or violate. any statute, ordinance, rule, or regulation applicable to the Premises or for any illegal purpoae. Laaase, at its aole cost, shall comply, and causs ita Officers, employ.e., agents and invitees to comply with all applicable laws, Ordinances, rules or regulations or any other requiremant of any duly constituted public authority having juriSdiction over the Premis.. or the use of the Premises, inclUding, without limitation, the provisions of the Americans with Diaabilities Act. UTICLJ: .. 1lBP,UJlB un KAIH'l'DUlCB a.pair. aDd JlaiAt8D&Jlo. by Le.... ..01 Le.a.. acknowledges and agrees that Lea see is familiar with and has inspected the Premiaes, and has apprised it.elf about the surrounding properties and neighborhood, the availability or unavailability of public water and sewer or other utility .ervice to the Premises, and the zoning and other requiremen1:ll applicable to the Premises, and that, except for the atructural improv8II\8n1:ll idantified in Section 6.01 to made by Le..or, the Premi.e. i. being leased in it. "a. is" .wher. i.. condition without any r.pr.s.ntation by or on behalt ot Les.or Concarning the Premi._. · .02 Le.s.. shall, throughout the term ot this Leas. and any extensions of that t.rm, at its own expense and ri.k, maintain the lea..d Premi... in good order and condition, inclUding but not limit.d to, making all r.pairs and replacement., ren.wal. and addition., interior and exterior, ordinary and extraordinary, toreseen and untoreseen, nece..ary to ke.p and maintain the Premises and all syste.., equip..nt and apparatus appurtenant thereto or u.ed in connection ther.with and improvements (inclUding HVAC and glass) in good order and condition. All maintenance, repairs, and replace.ents required by this Article must be performed pro.ptly when required and in a manner that will not CAuse depreciation in the value of the Preai.... La.a.e shall return the Premises to Le.sor in .uch good order and condition at the expiration ot the term hereot, ordinary wear and t.ar exc.pted. Any repair., replacements, renewal. and additions and any labor performed or materials turniabed in, on or about the Premises shall be perforaed and turniabed in .trict coapliance with all applicable lava, regulations, ordinanc_ and requiraaenta of all duly constituted aunicipal authoritie. or other 90vernaental bodi_ havinv 4 jurisdiction over the Premises. PROVIDED, NEVERTHELESS, that Lessor shall make all necessary structural and roof repairs required during the term of this Lease, and shall maintain the parking lot and sidewalk. 4.03 In the event Lessee fails to perform its Obligation to repair, replace, or maintain as set forth in S.ction 4.02, after a reasonable time after notice from Lessor of the need for such repair, replacement, or maintenance, Lessor may enter the Premises and make such repairs or replacements, or p.rform such maintenance or cause such repairs or replacements to be made or maintenance to be performed, at its own expense. Upon Lessor's notice to Lessee of the performance ~nd cost of any maintenanc., repairs, or replacements, Lessee shall immediately reimburse Lessor for any reasonable costs incurred by Lessor, together with interest on any such sum at 1 1/2' per month from the date of the notice until the date paid by Lessee to Lessor. AR'1'ICLE 5. UTILI'1'IES AHJ) '1'AUS Utility Charg.. 5.01 Less.e shall pay all utility charqes for water, electricity, heat, gas, steam, telephone and all other services or utilities uS.d in and about the l.ased Premises during the term of the Lea... '1'he Les.ee shall pay all such charge. dir.ctly to the utility company or municipality furnishing the .ervic., before the charges shall become d.linquent, or shall r.imburse Le.sor the cost thereof, in the event Lessor chooses to furni.h .ame, a. Lessor may direct. caarbeq. Raoval 5.02 Lease. shall be responsible for and shall pay for the r..oval of all garbage and rubbish from the l.as.d Premise. during the term of the Lea... Per.oual proparty '1'as.. 5.03 Le.... shall be liable for all taxes l.vi.d or ......ed again.t personal property, furnitur., or fixture. placed by Le.... in or on the Premi.... If any .uch tax.s for which Le.... i. liable are l.vi.d or ......ed again.t Le..or or Le..or'. property, and if Le..or el.cts to pay the., or if the ......ed value Of Le..or'. property is incr.a.ed by inclusion of personal property, furniture, or fixture. plac.d by 1..... in the Praai..., and Le..or .l.ct. to pay the tax.. ba..d on .uch increa.., Le.... shall pay to Le..or on demand that part of the tax.. for ~1ch 1..... is priaarlly liable Under this Articl.. 5 '. a..l Property Tax.. IlDd A.......lSt. 5.04 Le..or shall pay and tully di.charg. all r.al property tax.. andl a.....m.nt. impo..d on the lea.ed Premi... during the term ot this Lea... aut Tax; 0.. aDd OOOUPIlDO}' Tax 5.05 It, during the term ot this Lea.. or any r.n.wal or ext.nsion ther.ot, any tax i. impo.ed upon the privilege ot r.nting or occupying the Premi.e. or upon the amount ot rental. coll.ct.d ther.tore, Le.... will pay each month, a. additional r.nt, a .um equal to .uch tax or charg. that i. impo..d tor such month, but nothing her. in .hall be taken to require Le.... to pay any incOJll., ..tate, inheritance or tranchise tax imposed upon Le..or . UTICLZ I. AL~TIOIfS, ADDITIOIfS, AIm IJaIaOVZImJr.rs ~t ot Prea.f.... 6.01 Les.or .hall lIl8ke the following improvement. to the Prai...: Vanilla box only. Couut of Lea.or 6.02 Le.... shall not 1Il8k. any alteration., adc1itions or iaprovuent. to the l.a..d Prais.. without the prior written consent of Leasor. Cons.nt for nonstructural alteration., additiona, or improv..enta shall not be unreasonably withheld by Le..or, provid.d .uch non-.tructural alt.rations, addition. or ~ta ahall not adv.r..ly aff.ct the .tructural .oundn... of the Prai... or reduce the value of any exi.ting .tructur. or iaprovuent. >>ro~ of La..or 6.03 All alterations, addition., or ilIprovuenta llacla by Le.... &hall beCOll8 the property ot Leasor at the terain&tion of this Lea... Le..or IlaY, how.ver, require that Leaa.. rSllOV. any or all alterations, additions, and ilIprov...nta installed or llad. by Le.... on termination of the Lea... In tha eVent that Leasor requir.. Le.... to reao~ .uch .lterationa, adc1it.lona, or iaprovuenta, Lea... .hall repair any daaag. or injury to the Prai... cauaed by .uch raaoval. 6.04 Lea.or, at ita option, IlaY in any ce.. in Which ita con.aent i. required punuant to Section 6.02 hereot requ1n Lea... to turni&h it with capi.. ot the applicabl. Plana and llpeCj.ticationa and any releVant contract betvun Lea... and any , contractor or supplier. Lessor may also require, at its option and as a condition precedent to qiving any approval, (i) a performance bond and a labor and material payment bond, both in form and .Ub.tance satisfactory to Le..or, given by an independent financially re.ponsibl. corporat. .urety, to as.ur. compl.tion of the work in accordance with the plana and .p.cifications, free of lien., and (ii) evidence that each contractor has adequate workmen's compen.ation insuranc. and general liability insurance with unimpaired limits of at least $1,000,000 for injury to anyone person or injuries in anyone occurrence and property damage of $500,000, together with a certificate from the in.urer to the effect that such insurance may not be canceled or sUbstantially modified without at least 30 clay. prior written notic. to Len.or. UTICWI 7. 'nW)J: J'IrJ.'URU ~ 8Ial 'l'rad. I'~ur.s 7.01 Le.... has the riqht at all tim.s to erect or install &b.lv.., bins, machinery, equipment, or other trade fixtures in, on, or about the l.as.d Premis.., provided that Le.... complies with all applicabl. governmental laws, ordinances, and regulations regardinq .uch fixtures. Lessee has the right to remove all trade fixtures at the termination of this Leu., provided Le.... is not in default under the Lease and that the fixtur.. can be removed without structural damage to the building. Le.... must r.pair and r..tore any damage or injury to the builcUng, .tructures and improvem.nts now or her.after er.cted on the Premi... cau..d by in.tallation or removal of trade fixtur.., and all .uch r.pair. must be compl.t.d prior to the termination of the Leas.. Any trade fixture. that have not been removed by Le.... at the termination of this Lea.. .hall be d.eaed abandon.d by the Le.... and .hall automatically beco.. the property of Le..or. In the .vent any trade f ixtur. in.tall.d by Le.... i. abandon.d at the termination of the Lea.., Lea... must pay Le..or any r.a.Onabl. expena. actually incurred by Le..or to remOVe the fixture from the Premis.., provid.d the fixture is remov.d prior to the entrance of any .ubsequ.nt Le.... onto the Preabes. .igu 7.02 Le.... aay not inatall any .i9l1 or about the lea.ed Prai.es without first obtainill9 the written approval of Laasor vith Z'89ard to the .ia., type, &bape, desi9l1, color, uterial, content, and aathod of attacbaent of the a1qn. Luaor '. approval aball not be unreaaonably vi thhelcl. IA.... 1Wat, at ita sol. upenae, ruova any aiqna inatalled on or about , the leased Premises by Lessee and repair any damage done to the leased Premises or the building in which the leased Premises are located or the land surrounding the leased Premises by the installation or removal of the signs. This removal and repair must be completed not later than the termination date of this Lease. U~ICI.I 8. HJ:CDHIC8' LIBIIS 8.01 Lessee shall promptly pay any contractors and materialmen who supply labor, work or materials to Lessee at the Premis_ or the BUilding ao aa to avoid the possibility of a lien attaching to the Premises. Lessee will not permit any mechanic's lien or liens to be placed on the Premises or improvements on the Premises. If a mechanic's lien is filed on the Premises or on improvements on the leased Premises, Lessee will promptly cause it to be discharged of record by payment, deposit, bond, order of court or otherwise or will pay the lien. If default in payment of the lien continues of record for twenty days after written notice from Lessor to Lessee, Lessor may, at its option, pay the lien or any portion of it without inquiry as to its validity. Any amounts paid by the Lessor to remove a mechanic's lien caused to be filed against the Premises or improvements on the Premises by Less.., including exp.ns.s and int.rest, shall be due from Le.... to Le..or and shall be repaid to Lessor immediately on r.ceipt ot notice, together with interest at the rate of 18' per annwa from the date Le..or paid to remove such li.n until the date Le..e. repays Les.or. Nothing in this Lease i. intend.d to authorize Les.ee to do or cause any work or labor to be done or any materials to be supplied for the account of Lessor, all of the .... to be solely for Le..ee's account and at Le...... ri.k and expens.. Throughout this Lease the term "mechanic'a lien" is used to include any li.n, encumbrance or charge l.vied or impos.d upon the Premis.. or any inter.st th.r.in or income th.r.trom on account ot any mechanic'., labor.rs or mat.rialman'. lien or claim or ari.ing out of any debt or liability to or any claim or deaand ot any contractor, .echanic, .upplier, materialJDan or laborer . U'l'ICLJI ,. IDUJtUCJ: UID D1DDDII'1'Y L.t.U1l1 tJ IlUIuraaae t.Ol Lu..., at ita OVll expen.., lIbaU provide and IlAintain in force during the tera of this Leas., comprehensive general Uahil! ty inaurance protecting L...or and Leas.. against injury or :;=ye to any person or property occurring in, on or about the ... or any .id.walks, drivevaya, parkiftCJ lot. or othar aru. appurt.nant to the Prube.. Such in.urance lIball be ill the aaount of at lean $1,000,000 aiftCJle liait for injury to . anyone person or injuries in anyone occurrence, and $500,000 for property damage, unimpaired. Such policies shall name Lessor and Lessee a. insureds. Thi. insurance is to be carried by one or more insurance companies authorized to do business in P.nnsylvania. R...dy for Failure to Provide %nsuraDoe 9.02 Les.ee shall furnish Lessor with certificate. of all in.uranc. required by thi. Article. If Lessee does not provide such certificates on Lessor's delivery of possession to Less.. or if Lessee allow. any insurance required under this ArtiCle to lap.e, Le..or may, at its option, take out and pay the premiums on the neces.ary insurance to comply with Lessee's obligations under the provisions of this Article. Lessor is entitled to reimbursement from Les.ee for all amounts spent by it to pro cur. and maintain such insurance, with interest at the rate of 18' per annum from the date of receipt of Lessor's notice of payment until r.imbursement by Le.see. Bold-Baral... Claus. 9.03 Lessor shall not be responsible for and is h.reby r.li.Ved from all liability for any damage, expens., cau.e of action, .uits, d.mand., judgment., and claim. of any nature what.o.ver, eri.ing from or by rea. on of any injury to any person or per.ons or any damage to any property which may arise from any caus. (inClUding, without limitation, negligence of Le..or or its agents, servants or employees), or from pre.ent or future Structural dst.cts or other conditions in, on or about the Premi... or any part ther.of or any sidewalk., str..ts, driv.way., rights-ot-way or roadways adjacent th.reto, or in any manner qrowing out of or connected with the u.e and occupancy of the Pr8llli... or any part thereof by Lessee or any other party during the term of this Lease or any renewal or exten.ion ther.of. Less.. acc.pts and assumes such liability and agre.. to prot.ct, indemnify and hold Le.sor harmless against any and all liability, claims, demands, damages, costs, and expense., inclUding r.asonabl. attorney.' f... tor the d.fense of such claw and demand., arising frOJl\ the conduct or manag8lllant of Le..ee '. buaine.s on the Premi.es, or ita use ot the Pr8llli.e. or from any br.ach on the part of Le.... of any condition. of this Lea... or frOJl\ any act or negligence of Le...., its ag.nts, contractor., amploy.... .Ubl......, conce..ionair... or lic.nse.. in or &})out the Premis... In ca.e of any action or proc..ding brought again.t Le..or by reason of any .uch cla1&, Le..... on notic. froa Le..or, aqr... to defend the action or proceeding. This aball not be construed .. in any way liaiting Lea...'. obligaUona under ArUch ,. t 9.04 The insurance policies referred to above shall be underwritten by insurance companies with Best's "A" rating or better. Lessee shall deliver to Lessor certificates of all insurance policies on or before the first day of the term hereof and thereafter ten days prior to the execution of any such policy. Lessee shall also deliver to Lessor receipts evidencing payment of all insurance premiums, which delivery shall be at least ten days prior to the date such premiums are due. UTICIoI: 10. nlt.""GJ: OR DUTJlUCTIOII OJ' PREH%SES 10.01 If the Premi.e. .hould be damaged or destroyed by fire, flood, or other casualty, Lessee shall give immediate written notice of the damage or destruction to Lessor, including a description of the damage and, as far as known to Lessee, the cauae of the damage. Total Destruction 10.02 If the Premises are totally destroyed by fire, flood, or other casualty not the fault of Lessee or any person in or about the Premi.es with the express or implied consent of Les.ee, or if the Premises should be so damages by such a cause that rebuilding or repairs cannot, in Lessor's reasonable jud91llent, be completed within ninety (90) calendar days and at a co.t not to exc.ed available insurance proceeds, this Lease shall terminat., and rent shall be abated for the unexpired portion of this Leas., eff.ctiv. as of the date of written notification as provided in S.ction 10.01. 1I~ia1 DeetruotiOIl 10.03 If the Premis.s are damaged by tire, flood, or other casualty not the fault of Les.ee or any person in or about the Premi... with the expr.ss or implied con..nt of Le...., but not to such an ext.nt that rebuilding or r.pairs cannot r.asonably be compl.ted within ninety (90) calendar days and at a cost not to exc.ed available insurance proceeds, this Lease shall not be terminated exc.pt .. provided in Subparagraph. (a) and (b) . (a) It the partial de.truction of the Premi..s occurs prior to the final six (6) months of the then current Le..e tera, Lessor ahall, at ita .ole cost and ri.k, proceed imm.diately to relNild or repair the dauged buildings and improv._nt. to substantially the condition in which they existed prior to such daaag.; provided, how.ver, that Le.sor ahall not be required to expend monie. in exc... of insurance proceed. _de available to lAaaor for .uch purpo... It the Praia.. are untenantable in Wbol. or in part fol1owinv such ctauge, the rent payable durinv 10 the period in which they are untenantable shall be adjusted equitably. In the event that Lessor should fail to complete such rebuilding or repairs with ninety (90) calendar days from the date of written notification by Lessee to Lessor of the occurrence of the damage, Lessee may terminate this Lease by written notification to Lessor. On such notification, all rights and obligations under this Lease shall cease. (b) If partial destruction of the Premises occurs in the final six (6) months of the then current Lease term, or if any mortgagee holding a lien on the Premises refuses to permit insurance proceeds to be applied to the restoration of the Premises, or if the insurance proceeds available for restoration are not sufficient to restore the Premises to substantially its condition prior to the casualty, Lessor n.ed not rebuild or r.pair the Premises and shall notify Lessee in writing of its intention not to rebuild or repair. If Lessor elects not to rebuild or repair the Premises and the Premises are untenantable in whole or in part following such damage, Lessee may elect to terminate the Lease as of the date of Lessee's notice described in S.ction 10.01 above or to continue the Lease with the rent for the rlllll8inder of the Lease period adjusted .quitably. Lessee ahall notify Lessor of such .lection within ten (10) days after r.c.ipt of Lessor's notice described above. unCLI 11. cOJmEHHJ.nOJl ~otal COndaDaUon 11.01 If the whole of the Premises shall be taken by any public or quasi-public authority under the power of eminent dOll&in, condemnation, or expropriation, or, in the .vent of a conv.yance in lieu thereof, then this Lease shall terminate on the date when title vests in the condemning authority. Rent shall abate and Le.... shall have no claim against Lessor or the COndemning authority for the value of the unexpir.d t.rm of this Lea.. . Partial COndaDatioD 11.02 If any part of the Premi... shall be ao tak.n or conveyed and if auch partial taking or conveyance shall render the Praia.. unsuitable for the busine.s of the Les..e, or it in Lasaor'. sol. opinion, it would be impractical or the condemnation proceeda are insufficient to restore the rlllll8inder of the Praiae., thtUI the tara of thb Leu. ahall cu.. and tenUnate .. of the date on which title to the Preai.e. ve.ts in the COndUlning authority. Leas.. shall have no claill allainat Lauor Ol' the Condemning authority for the value of any unexpired 11 portion of this lease. In the event such partial taking or conveyance is not extensive enough to render the Premises unsuitable for the business of Lessee, this Lease shall continue in full force and effect except that the rent shall be adjusted equitably during the unexpir.d portion of the Lease. Le..or'. Daaaq.. 11.03 In the event of any condemnation or taking, whether whole or partial, the Lesse. shall not be entitl.d to any part of the award. Le.se. hereby expressly waives any right or claim to any part of such amount and assiqns to Lessor any such right or claim to which Less.e might become entitled. Le...... Daaaq.. 11.04 Although all damages in the event of any condemnation are to belong to the Lessor, Lessee shall have the right, to the ext.nt that it shall not diminish the Lessor'. . , award, to claim and r.cover from the condemning authority, such compenaation a. may be separately award.d or r.cov.rable by Le.... under the Emin.nt DOlIIAin Cod. in Le....' s own right for or on account of, and limited .ol.ly to, any co.t to which Le.... might be put in removing La.S..' s merchancUse, furniture, fixtur.., lea.ehold improv_enta, and equipment. ~~&rJ ~.ktftq 11.05 If the condaanor .hould take only the right to po.s.ssion for a fixed period of time or for the duration of an _erqency or other temporary condition, then notwi th.tandift9 anything her.inabov. provided, this Leas. shall continu. in full force and .ff.ct without any abat...nt of r.nt, but the amounts p.yabl. by the condemnor with r..pect to any period of time prior to the expiration or sooner termination of this Lea.. .hall be paid by the condemnor to Lassor and the condemnor shall be considered a .ubtenant of Le..... Le..or .hall apply the lUIOWlt r.c.ived from the condemnor applicabl. to the r.nt due h.r.under net of Cotlta to Le..or f.or the coll.ction ther.of, or as much thereof.. may be n.cessary for such purpo.., toward the IUIOWlt d.ue froa Le.... a. rent for the period: and, Le.... shall pay to Lea.or any d.ficiency betw..n the ..ount thus paid by the condanor and the lUIOunt of the rent, or Le..or shall pay to Le.... any exce.. ot the lUIOunt ot the award over the eaount of the rent. ~CLI u. .._... 01' DlI'a:G1.~ 12 . 01 'l"ba follovinv .vents or any one or IIOrtl of tba eh&ll !Ie 8"...1:8 of default \!Mer this Lea..: 12 (a) Lessee shall fail to pay any fixed rent, additional rent or other sum payable hereunder; or (b) Lessee shall fail to perform or comply with any of the other terms, covenants, agreements or conditions hereof (and such failure shall continue for more than five (5) days after written notice thereof from Lessor) or (provided, if the default cannot be cured within five (5) days), Lessee shall not be considered in default if Lessee shall, within such period, have comm.nced with due diligence and dispatch to cur. such default, and shall thereafter complete with due dilig.nce the curing of .uch d.fault; or (c) Le.se. shall make a general assignment for the ben.fit of creditors, or shall admit in writing ita inability to pay its debts aa th.y become due, or shall file a p.tition in bankruptcy, or shall be adjudicated a bankrupt or insolvent, or .hall file a petition seeking any reorganization, arrangement., composition readjustment, liquidation, dissolution or similar relief under any present or future statute, law or regulation, or shall file an answer admitting or not contesting the material allegations of a petition against it in any such proceeding, or shall seek or consent to or acquiesce in the appointment of any trust.e, receiver or liquidator of Lesse. or any material part of ita properti..; or (d) If within 60 days after the commencement of any proc..ding against Le.... .eeking any reorganization, arrangement, compo.ition, readjustm.nt, liquidation or di..olution or .imilar r.lief under any pre..nt or future .tatute, law or regulation, such proce.ding .hall not have been dismi...d, or if, within 60 days after the appointm.nt without the ccn..nt or acqui..c.nc. of Le...., of any trust.., r.ceiver or liquidator of Le.s.., or of any mat.rial part of ita properti.., .uch appointm.nt shall not have been vacat.d. 12.02 In the .v.nt ot any .uch .v.nt of default (r.gardl... of the pend.ncy ot any proc.eding which has or might have the .ff.ct ot pr.venting Le.... from complying with the teras ot this Lea.e), Le..or at any time ther.after may exercise any one or aore ot the following remedi..: (a) 'l'enination of Lea... Le.sor uy terminate this Lea.., without any right by Le.... to r.instat. ita rights by pe~t ot rant due or other performance ot the terms and conditione hereof. Upon .uch tenination Le.... shall i--.di.tely .urr.nder po.....ion ot the Pr..i... to Le..or and Leasor ahall t-..diat.ly becoaa .ntitled to rec.ive troa Le.... d.&aa".. ~l to the cUtterence betw.an the alJ9reqat. rantala 13 reserved ror the balance or the term and the rair rental value or the Premise. ror that period, determined a. or the date or such termination. (b) Ral.tting. With or without terminating this Lea.e, a. Le..or may .l.ct, Le.sor may re-ent.r and reposse.s the Premises, or any part thereor, and lease them to any other person or .ntity upon such t.rm. as Lessor shall deam reasonable, ror a term within or beyond the term or this Leas.; provid.d, that any .uch r.l.tting prior to t.rmination shall be ror the account or Le...., and Les... shall remain liable ror (a) all minimum rent, additional rent and other sums which would be payable under this Lea.. by Les.e. in the absence or such expiration, termination or repos....ion, l.s. (b) the n.t proceed., if any, of any r.letting (inClUding, without limitation, all repos.e.sion costs, brokerage commis.ions, legal expens.., attorney.' ree. and expen.es, amploy.... exp.ns.., r.a.onabl. alt.ration coats, and expenses at pr.paration for such r.l.ttinq). It the Premi... are at the time at derault subl.t or l.a..d by Le.... to other., Le..or may, a. Le...... ag.nt, coll.ct rents due trom any subtenant or other tenant and apply .uch rents to the r.nt and other amounts due hereund.r without in any way affecting Less.e'. obligation to Le..or hereunder. Such ag.ncy, being given for ..curity, is hereby d.clar.d to be irr.vocaQl.. (c) Acc.leration of Rant. Le..or may d.clar. rant and all it... of additional r.nt tor the entire balanc. of the th.n currant term imm.diately due and payabl., tog.ther with all other charg.., payments, co.ts, and expen... payable by Le.... a. though .uch lUIIOunts war. payable in advanc. on the date the .vant of d.fault occurred. (i) No expiration or termination at this Lea.. tara pur.uant to S.ction 12.02 (a) hereot or by operation at law or otherwi.. (exc.pt a. expr...ly provided h.r.in), and no r.po.....ion ot the Preai... or any part th.r.ot pur.uant to S.ction 12. 02 (b) her.ot or otherv is. shall r.lieve Le.... of ita liabiliti.. and obligations her.und.r, all at which .hall .urviv. .uch expiration, termination or r.po.....ion, and Le..or aay, at its option, .u. tor and coll.ct rent and other charg.. due ber.Under .t any tiae and troll tiae to tin a. and wh.n .uch ch&rqea accru.. 12.03 With re.pect to any portion of the Prai... VI1ich is vacant or wnich is pbyai,*lly occupied by Lea..., Le..or ..y reaove all persona and property ther.troa, and .tore .uch property in a public varaboun or .l.aw.re at the coat ot and 1C for the account of Lessee, without service of notice or resort to legal process (all of which Lessee expressly waives) and without being d.em.d guilty of trespass or becoming liable for any loss or damage which may be occasioned thereby. Lessor shall have a li.n for the payment of all sums agreed to be paid by Less.. herein upon all Lessee's property, which lien is to b. in addition to any Lessor's lien now or hereafter provided by law. 12.04 The parties hereby waive trial by jury in any action, proc..ding, or counterclaim brought by either of them again.t the other on any matters arising out of or in any way conn.cted with this Lea.e, the relationship of Lessor and Lesse., Lesse.'. us. or occupancy of the Premises, and/or any claim or injury or damage. In the event Lessor commences any proceedings for non-payment of r.nt or additional rent, Lessee will not interpo.. any count.rclaim of any nature or description in any .uch proce.dings. This shall not be construed, howev.r, as a waiver of Lessee's right to assert any such claims in any s.parat. action brOUght by Les.... 12.05 Le.... h.r.by expressly waives any and all rights of r.demption grant.d by or under any pres.nt or future law in the .vent this Lease i. t.rminated or Lessee i. evicted or d.ispo.....ed. by reason of violation by Less.e of any of th. provi.ions of thi. Lea... 12.06 In the .v.nt of breach or thr.at.n.d br.ach by Le.... of any provi.ion of this Lea.., Lessor shall have th. right of injunction a. if other rem.di.. were not provided for her.in. 12.07 No right or rem.dy herein conf.rred. upon or r..erv.d to Le..or i. int.nd.d to be exclusive of any other right or remedy herein or by law provided, but each .hall be cumulative and in addition to .very other right or rem.dy given h.r.in or now or hereafter .xi.tit\9 at law or in equity or by .tatute. 12.08 Any rent (includit\9 charges coll.ctible .. additional rent) overdue for a period of more than five (5) clay. .hall bear intere.t at the rat. of 18' per annua until paid. 12.0' If Le.... shall d.fault in the perforaanoe at any covenant required to be perforud by it under this Lea.., Les.or aay perforll the .... for the account and at the expens. ot Les..., atter tirat givit\9 notice to Le.... of ita intention to do .0. It Lessor at any t1ae is coapelled to pay, or el.eta to pay, any sua of IIOMr' by reason of the failure ot Leas.. to COIIply with any prav dona hereof, or if Lessor is capelled to incur any upanae, includin9 reasonable counael f..., in 1$ instituting, prosecuting or defending against any action or proceeding instituted by reason of any default of Lessee hereunder, the amount of such payments or expenses shall be paid by Lessee to Lessor as additional rent on the next day following such payment or the incurring of such expense upon which a regular monthly rental payment is due, together with interest thereon at the rate of 18' per annum. 12.10 No waiver by Lessor of any breach by Lessee of any of its Obligations, agreements or covenants hereunder shall be a waiver of any subsequent breach or of any other obligation, agreement or covenant, nor shall any forbearance by Lessor to seek a. remedy for eny breach by Lessee be a waiver by Lessor of its rights and remedies with respect to such or any subsequent breach. 12.11 Lessee expressly waives any right of defense which it may have based on any purported merger of any cause of action, and neither the commencement of any action or proceeding nor the settlement thereof or entering of judgment therein shall bar Leasor from bringing subsequent actions or proceedings from time to time. THE FOLLOWING SECTIONS SET FORTH WARRANTS OF AUTHORITY FOR AN ATTORNEY TO CONFESS JUDGMENT AGAINST MAKER. IN GRANTING THIS RIGHT TO CONFESS Jt1DGKENT AGAINST LESSEE, LESSEE HEREl'V KNOWINGLY, INTENTIONALLY AND VOLUNTARILY, AND, ON THE ADVICE OF THE SEPAllATE COtmsEL OF LE~SE!:.. UNCONDITIONALLY WAIVES ANY AND ALL RIGHTS LESSEE HAD OR MAY HAVE TO PRIOR NOTICE AND AN OPPORTUNITY FOR HEARING UNDER THE RESPECTIVE CONSTITtl'l'IONS AND LAWS OF THE UNITED STATES AND THE COMMONWEALTH OF PENNSYLVANIA. 12.12 LESSEE HEREBY EKPOWERS ANY PROTHONOTARY OR A'l'TORNEY OF ANY COURT OF RECORD TO APPEAR FOR LESSEE IN ANY AND ALL ACTIONS WHICH MAY BE BROUGHT FOR RENT AND/OR THE CHARGES, PAYHIHTs, COSTS AND EXPENSES HEREIN RESERVED AS RENT, OR HEREIN AGREED TO BE PAID BY LESSEE AND/OR TO SIGN FOR LESSEE AN AGREEMENT FOR EHTElUNG IN ANY COMPETENT COURT AN AMICABLE ACTION OR ACTIONS FOR THE RECOVERY OF SUCH RENT OR OTHER CHARGES OR EXPENSES, AND IN SAID SUITS OR IN SAID AMICABLE ACTION OR ACTIONS TO COHFE$S JODGHENT AGAINST LESSEE FOR ALL OR ANY PART or THE lU:Il't SPECIFIED IN THIS LEASE AND THEN DUE AND UNPAID, AND OTHER CHARCO, PAYHENTS, COSTS AND EXPENSES RESERVED AS RENT OR AGREED TO BE PAID BY LESSEE AND THEN DUE AND UNPAID, AND FOR INTEREST AND COSTS TOGETHER WITH A REASONABLE ATTORNEY'S COHHISSION or 15'. SUCH AUTHORITY SHALL NOT BE EXHAUSTED BY ON!: EXERCISE THIREOF. BUT J't1DGM:!NT MAY BE CONFUSE%) AS AFORESAID FROM TIME TO TDCZ AS OPTEN AS ANY OF SAID RENT AND/OR OTHER CHARCES RESERVED AS RIHT OR AGREED TO BE PAID BY LESSEE SDu.r FALL DUE OR BE IN AJtRlU.,. 11 12.13 uPON THE EXPIRATION OF THE THEN Ct1RREN'1' TERM OF THIS LEAsE OR THE EARLIER TERMINATION OR SURRENDER HEREOF AS PROVIDED IN THIS LEASE, IT SHALL BE LAWFUL FOR ANY A'l"l'ORNEY TO APPEAR AS ATTORNEY FOR LESSEE AS WELL AS FOR ALL PERSONS CLAIMING BY, THROUGH OR UNDER LESSEE AND TO SIGN AN AGREEMENT FOR ENTERING IN ANY COMPETENT COURT AN AMICABLE ACTION IN EJECTMENT AGAINST LESSEE AND ALL PERSONS CLAIMING BY, THROUGH OR UNDER LESSEE AND THEREIN CONFESS JUDGMENT FOR THE RECOVERY BY LESSOR OF POSSESSION THE HEREIN PREMISES, FOR WHICH THIS LEASE SHALL BE ITS SUFFICIENT WARRANT, WHEREoPON, IF LESSOR SO DESIRES, A WRIT OF POSSESSION OR OTHER APPROPRIATE WRIT UNDER THE RULES OF CIVIL PROCEDURE THEN IN EFFECT MAY ISSUE FORTHWITH, WITHOUT ANY PRIOR WRIT OR PROCEEDINGS; PROVIDED, HOWEVER, IF FOR ANY REASON AFTER SUCH ACTION SHALL HAVE BEEN COMMENCED, THE SAME SHALL BE DETERMINED AND THE POSSESSION OF THE PREMISES HEREBY DEMISED REMAIN IN OR BE RESTORED TO LESSEE, LESSOR SHALL HAVE THE RIGHT FOR THE SAME DEFAULT AND uPON ANY SUBSEQUENT DEFAULT OR DEFAULTS, OR UPON THE TERMINATION OF THIS LEAsE UNDER ANY OF THE TERMS OF THIS LEAsE TO BRING ONE OR MORE FURTHER AMICABLE ACTION OR ACTIONS AS HEREINBEFORE SET FORTH TO RECOVER POSSESSION OF THE SAID PREMISES AND CONFESS JtlOGMENT FOR THE RECOVERY OF POSSESSION OF THE PREKISES AS HEREINABoVE PROVIDED. 12.14 IN ANY AMICABLE ACTION OF EJECTMENT AND/OR FOR RENT IN ARREARs, LESSOR SHALL FIRST CAUSE TO BE FILED IN SUCH ACTION AN AFFIDAVIT MADE BY IT OR SOMEONE ACTING FOR IT, SETTING FORTH THE FACTS NECESSARY TO AOTHORIZE THE ENTRY OF Jt1DGHENT, AND, IF A TRUE COpy OF THIS LEASE (AND OF THE TRUTH OF THE COpy SOCII AFFIDAVIT SHALL BE SUFFICIENT EVIDENCE) BE FILED IN SUCH ACTION, IT SHALL NOT BE NECESSARY TO FILE THE ORIGINAL AS A WAR- RANT OF ATTORNEY, ANY RULE OF COURT, CUSTOM OR PRACTICE TO THE CONTRARy NOTWITHSTANDING. LESSEE HEREBy RELEAsES TO LESSOR AND TO ANY AND ALL ATTORNEYS WHO MAY APPEAR FOR LESSEE ALL ERRORS IN SAID PROCEEDINGS AND ALL LIABILITY THEREOF. IF PROCEEDINGS SHALL BE COHHENCED BY LESSOR TO RECOVER POSSESSION UNDER THE ACTS OF ASSEMBLy AND RULES OF CIVIL PROCEDURE, EITHER AT THE END OF THE TERM OR EARLIER TERMINATION OF THIS LEASE, OR FOR NON-PAYMENT OF RENT OR ANY OTHER REASON, LESSEE SPECIFICALLY WAIVES THE RIGHT TO THE 3 MONTHs' NOTICE AND TO THE 15 OR 30 DAYS' NOTICE REQUIRED BY THE LANDLORD AND TENANT ACT OF 1951, AND AGREES THAT 5 DAYS' NOTICZ SVTT. BE SUFFICIENT IN EITHJ:R OR ANY SOCH CASE. U'l'ICLa 13. nr".WIOII 8f LUaoa 13.01 lA.... ll!uall peraJ.t lA8aor and lAJI.or'. aq.nu, repreaenutiva., and eaplo)'ee8 to enter the !>real... at all re&aonabl. ti... tor the P\U'pO.. ot inapection, repeir or any other P\IZ'POH neceaaary to prat~ lAuor'. interut in the Prai... or to perfon lA..or'. c1IlUu WlCler thia lAu.. 11 U'lICLI: 16. USICUIHEIIT AIm SUBLlmSB a..igDaaDt aDd Subl.ttiDq by L..... 16.01 Leaae. may not sublet, assign, encumber, or otherwia. tranater thLa Leaae, or any right or interest in this Leaae or in t.b. Premiaea or the improvements on the Premises, without the prior written consent of Le.sor, which consent may be withh.ld in Le..or'. sole discretion. It Lessee sublet., a.signs, encumber., or oth.rwis. transfera it. rights or inter..ts in this Lease or in the Premises or the improvements on th. Premi... without the written con..nt of Lessor, Leasor may, at its option, d.clar. thi. Leas. terminated. In the ev.nt Le..or consents in writing to an assignment, sublease, or other tran.fer of all or any of Le....'. rights under this Lea.., the a.sign.. or .ubl..... must a.sume all of Lessee's obligations under this Lease, and Leas.. shall remain liable for every obliqation under the Lea.e. a..igDaeDt bJ Lee.or 16.02. Le..or may as.ign or transter any or all of ita inter..ts under the terms of this Lea.e. U1'%CLI u. a.-..J.l'n_......u. CODLIUCI: 15.01 Without liaitinq the gen.rality of any provi.ions ..t forth el..where in this Leas., Le.... agr... a. tOllow., (a) Lea... aball not (either with or without negligenc.) caus. or permit the ..cape, dispo.al or relea.. of any HaZardous Substanc.., a. hereinatter defin.d, on, in or under th. Premi.... Le.... ahall not allow the .torage or us. ot .uch .ubstanc.. in any manner not sanction.d by law or by the high..t .tandarda pr.vailinq in the indu.try for the storage and u.. ot such .ubstanc.., nor allow to be brought onto the Premi... any .uch .ubstanc.. except to u.. in the ordinary cour.. of Le....'s busin..., and then only atter written notice i. given to Le..or ot (1) th. identity ot .uch substanc.s, and (2) the .ethod for pr.venting th. ..cape of any .uch substances, and Leasor's prior written approval is grantaci. Le.... covenants and agr.e. that th. Preai... vill, at all time. during its us. or occupancy ther.of, be kept and maintained so a. to cOllply vith all now axi.tineJ or her_tter enactaci or i.sued .tatut.., laWII, rul.., ordJ.nancaa, orders, peraita and requlations of all .tata, tacieral, local, and other 9oVU1lllent&1 and regulatory authoriti.., aqanci.. and bodi.. applicable to the Pnai..., per1:&inJ.ncJ to environaental ..tters, or regulatinq, prohibiting 11 ,..... -,'. or otherwise having to do with Hazardous Substances and all other toxic, or hazardous wastes (collectively callea "Environmental Laws"). Lessee shall execute affidavits, representations and the like trom time to time at Lessor's request concerning Lessee's be.t knowl.dg. and beliet without limiting any of the obligations ot Le.s.. under the provisions set torth in this Lea.e. Lessee agree. to clean up all spills and discharges ot Hazardou. Sub.tanc.. on the Premises in a manner which shall comply with all applicabl. environmental laws. Lessee .hall notity Lessor in vritilU1 ot all .ucb incidenta. (b) Le.... shall immediately deliver to Les.or a copy ot any .ummons, citation, directive, notice, complaint, lett.r or other communication trom any tederal, state or local environm.ntal ag.ncy, conc.rning any alleged violation. of any environm.ntal lava or regulations on the Premi.e., or concerning any inv..tigation or request tor intormation relating to the use, generation, handling, treatment, storage or disposal of Hazardous Sub.tanc.. in conn.ction with the Premises. Cc) Upon reque.t, Le.se. shall cooperate in Obtaining .videnc. of complianc. with any environmental law, regulation, order of any governmental authority, which cooperation may inclucl., without limitation, providing affidavit., reports or r..pons.. to qu..tion.. Le.... .hall provide acc.s. to the Premi..., upon request, tor inspections and testing of the Premi... r.garding the pr..ence of Hazardous Substanc... Cd) Le..or and ita engin..r., t.chnicians, and consul- tanta Ccoll.ctiv.ly the "Auditors") may, from tim. to tim. a. Lea.or d.... appropriat., conduct periodic te.t. and examinations ("AUdita.) of the Premi.e. to confirm and monitor Les...'a complianc. with the Lea... Such Audit. shall be conducted in auch a lIIUUler a. to llinimize the interference with Le.s.e'. permitted activiti.s on the Premise.; howev.r, in all ca..., the Audita .hall be of .uch nature and scope .. .hall be r.a.onably required by then existing technology to contirm Le..ee'. compliance with thb Leu.. Les.e. shall fully cooperate with Lea.or and ita Auditors in the conduct of .uch Audit.. (.) Le.... .hall indemnifY, d.fend and hold Le..or, ita partners, affiliat.., par.nt., offic.r., dir.ctor. and em- ploy..., and other occupant. of the Premi... C collect! v.ly , the .lndeanit....), fr.., harml... and indemnifi.d froa any expens.., penalti.., fin.., claiaa, deaand., liabiliti.., co.t., per.onal injuri.., property d...g., action. and cau.e. of action, .uita, dGta. judqaenta, deaancta or c:barc;.. vbataoaver Which the Indeanit... .ball or uy incur, or whicb any .uch party would otharvi.. incur, by r...on of Le...... failure to coaply with 1t this Lease including, but not limited to: (i) the cost of bringing the Premises into compliance with all laws; (ii) the reasonable cost of all appropriate tests and examinations of the Premises to confirm that the Premises has been brought into compliance with all laws; and (iii) the reasonable fees and expenses of the Indemnitees' attorneys, engineers, and consultants incurred by the Indemnitees in enforcing and confirming compliance with this Lease. (f) The covenants contained in this Article shall survive the expiration or termination of this Lease, and shall continue for so long as Lessor and its successors and assigns, and the Indemnitees, may be subject to any expenses, obligations, penalties, fines, claims, demands, liabilities, costs, personal injuries, property damage, actions and causes of action, suits, debts, judgments, demands or charges whatsoever against which Lessee has agreed to indemnity the Indemnitees under this Lease. (g) All terms, except as otherwise defined herein, shall have the meanings as set forth in the Lease. For purposes hereof, Hazardous Substances shall mean (i) any "Hazardous Substance", "Pollutant" or "Contaminant" (as defined in Section 101(14) and (33) of the Comprehensive Environmental Response and Compensation and Liability Act ("CERCLA"), 42 U.S.C.A. Section 9601(14) and (33)) or 40 C.F.R. Part 302; (ii) any hazardous substance, hazardous waste or solid waste, as those terms are defined in applicable state or local law; (iii) any substances containing petroleum as that term is defined in Section 9001(8) of the Resource Conservation and Recovery Act, as amended, 42 U.S.C.A. Section 6991(8) or 40 C.F.R. 280.1; or (iv) any other substance for which any governmental entity requires special handling in ita collection, storage, treatment or disposal. (h) Lessor represents and warrants that, to the best of Lessor'a knowledge: (1) No notice has been given to Lessor, by any governmental authority or any person claiming any violation of, or requiring compliance with, any federal, state or local statute, ordinance, regulation or other requirement of an Environmental Law, or deunding remediation of or paym.nt of contribution for any environm.ntal contamination or any damag.s attributa.bl. ther.to; (2) There are no underground storag. tanks or s.ptic systems, located at the Preaues; (3) No invaatiqation, ac1ainistrati ve order, con.ent order, lien, auperlien or .gr....nt, litigation or settlement vith respect to any Hazardous Subat.nce of .ny kind located on, about or under all or .ny portiOll of the Pr_b.. uiata. is pending. ~ed. thnatened or antiCipated. 20 (i) Lessor shall defend, indemnify and hold Lessee harmless from and against any liability, loss, damage, costs and expense suffered, incurred or threatened as a result of any breach of any representation or warranty hereunder or as a result of notice, complaint, claim, demand, suit, order, judgment or any legal requirement, including without limitation of the generality of the foregoing, court costs, attorney's and consultant's fees, environmental Clean-up costs, natural resources damages, fines, penalties and damage. to person., personal property, real property and busines. enterprises, arising out of or relating to an environmental condition on the Premises caused by Lessor. ART%CLK 11. RULlI AIm UQtlUT%0If8 16.01 Les.or shall have the right to make reasonable rul.s and r.gulation. for the purpose of en.uring or enhancing the safety, car., cleanline.s, maintenanc., or preservation of the Premi.e. and common areas, as well as for the purpose of preserving good order in and on the Premises and common areas. (specifically including but not limited to the allocation and id.ntification at parking .paces among tenants.) Lesse. and ita ofticer., employe.., agent., and invitees agree to be bound by any such rules and regulations on receipt by 1..... of written notic. from Les.or s.tting forth same, and any change., additions and/or deletions. Le..ee .hall be responsible for the complianc. at its officers, employe.., and invitees with ell .uch rule. and r.gulations. ARUCLK 17. CClIIJ)n'%OIf PUCBDIft 17.01 Thi. Lea.e is expres.ly condition.d upon the acqui.ition at f.. .impl. title to the premi.e. by Le..or. Should such ..ttlement not occur for any rea.on, Le.sor shall return all said rent payments to Lessee, and neither party shall have any liability to the other her.under. ARUCLK 11. Ja,/,!lPu.1lVWOV8 18.01 All notices requir.d under this Lea.. ahall be effectively given only if by certified mail, registered ..il, or nationally recognized overnight courier service, addr....d to tbe proper party. at the followinv addres...: Le..or Paul L. Kostick 41 Georve Circle Hecbanicabu.r9, PA 17055 W. Scott Stu'uch, Eaquin 20 Irlord Road, Suite 215 LelIoyne, PA 17043 with a copy to: 21 Lessee Francesco Failla 663 Wyndamere Road Lewisberry, PA 17339 with a copy to: Either party IIllY change the address to which notice. are to be sent by gi vinq the other party notice of the new addr... in th. manner provided in this S.ction. Put1.. BoWUS 18.02. This Leas. shall be binding on, and inure to th. benefit of, th. partie. to the Lease and their respective heir., executors, administrators, legal representatives, .uccea.or., and a.signa when permitted by this Lease. PelluJ'lVUia loa. to app11 18. 03 '1'hJ.s agreaaent shall be governed by and construed under the lava of the ColIIlIIonwaalth of Pennsylvania. Legal Coutzuotiu 18.0C In the event anyone or IlOre of the previsiona contained in thi. agr._ent ahall for any re..on be held by a court of COIIpatent jurisdiction to be invalid, illegal, or unenforceable in any r..pact, such invalidity, illegality, or unanforceability shall not affect any other provision of the .gr.......t, and this aqreaaent ahall be conatrued as if the invalid, illeqal, or unenforceable provision had n.ver been included in thia agr.8MDt. Pl:i~ ,a,p-..au luper.adad 11.05 Thi. Lea.. con.titut.. the only agre8MDt between th. Lea.or and Lea... and supersed.. any prior undera1:ancUnqa or written or oral agre_enu between the parti.. r..JI8Ctinv the .ubject utter of this Lea.e. .-~""'-.Ilt 11.06 No aaandaant, lIOClification, or alteration of the t:eraa of tbia Leue &ball be bindineJ unle.. it i. in writinq, dated .1I~equent to the date of this Leue, and duly executed by tbe ,.....car aDd 7....... 22 Attorneys' ~ees aDd Costs 18.07 In the event that at any time during the term of this Lease either Lessor or Lessee shall institute any action or proceeding against the other relatinq to the provisions of this Lease or any default of this Lease, then the unsuccessful party shall reimburse the successful party for reasonable attorneys' fe.. and axpena.. incurred to enforce the Lea.e, VDavoida!lle ~lay 18.08 Except for the payment of rant, utility charqes, and other SW118 of mon.y to be paid under this 'Leas., n.i ther Lessor nor Less.e shall be r.quired to perform any term, condition, or covenant in this Lea.e so lonq as such performance i. hinder.d or prevented by unavoidable delay.. For purpos.s of this Section, unavoidable delays shall be defined as natural di.aster.; strik.., lockouts, or labor disput.s; qovernmental requlations, r.strictions, or controls; enemy or hostile qovernment action; civil riots; fire, flood., or nuclear accident; or any other cause not reasonably within the control of Las.or or Las.e. and that by the &xercis. of due diliq.nce Les.or or Le.... i. unable, wholly or in part, to prevant or overcOJlle. !'iae at "SU08 18.0' Time is of the e.senc. of this agr.eaent. Quiet IDjOJlWlt 18.10 Le...., upon paying the r.nt and upon observing and k.epinq the covenants, agreement. and conditions of this Lea.. on ita part to be perform.d, .hall quietly have and enjoy the Prai... durinq the tarm of this Lease without hindrance or mol..tation by Les.or or by anyone claiming through or under Les.or, .ubject to the terms, covenants, conditions and exceptions herein contained, and su!lject also to any r..tric- tions, ".eaenta or other agreeaents ot record. '!'hi. covenant is given in lieu of any t.plied covenant ot quiet enjoyment. blaUOIUIllip ot Parti.. 11.11 The relationship betwe.n the parti.. hereto lIball be that of Las.or end Lea... and nothing contained herein shell be construed to change or aodity that relationsbip ao .. to ulte Lessor end te.... partnera, joint venturera, or debtor end cnd1tor . u Requir8aaDta of Publio Authoriti.. 18.12 Less.. will promptly and faithfully comply with, confora to, and obey all pre.ent and future laws, ordinanc.., rule., regulations and r.quirement. of every duly constituted governm.ntal authority or agency having jurisdiction over Le.... anc1/or the Premi... or any part thereof. ..tappal Certifiaaa 18.13 LeII... agr... to ex.cut. and deliver to any mortgag.. or purcha.er of the Premi..., imm.diat.ly upon r.quest, an -..toppel certificat.- stating the amount -of r.nt due frOll Lease. hereunder, that this Leas. remain. in full force and .ff.ct without lIIodification, and that Less.e has no s.t-off. against rent; or, if this Lease hu be.n lIIodified, or if Le.... haa any ..t-offa against r.nt, the exact nature of the modifications and the pr.ci.e amount of the s.t-offs. 110 ~oker. 18.14 Lea... r.pr..enta and warranta to Lessor that Lea... baa had no dealing., negotiations or consultations with r..pect to the Premi... or this transaction with any broker or intermediary and that no broker or interm.diary called the Prai... to LeII..e'. attention for l.a.. ur took any part in any dealing., negotiations or consultation. with respect to the Prai... or this Lea... In the .v.nt that any broker or interaediary claw to have sublllitted the Premis.. to Le.s.e, to have induced LeII... to l.a.. the Premise. or to have taken part in any dealing., n.gotiations or consultations with resp.ct to the Premi... or this Lea.., Le.... will be re.pon.ibl. for and will ind8lllnify, d.f.nd and .av. Leeeor harml... from and against any costa, f... (inClUding without lilllitation, attorney's f...), expena.., liabilities, and claillla incurred or suffered by Le..or as a reault ther.of. lIort9a9.s 18.15 LeII... acc.pta this Lease subj.ct to any deeds of trust, ..curity inter..ta, or mortgage. that lIIight now or later constitute a lien on the Prai.... LeII... lIIust, on deaand, execute any instruaenta, r.I....., or other dOCWIaDta that are required by eny mortgag.. tor the purpos. ot .ubj.cting and .Ubordinatinq thi. Leaa. to the lien of any sucb deed of trWI1:, .ecurity inter1ult, or lIort9ave constituting a lien on the pz-..t.... 24 Parti.. BoUDIS 18.16 Subject to the provisions of Article 14 hereof, thia Lea.e .ball be binding upon the parties hereto and Shall be binding upon the inure to the benefit of and be enforceable by their reapective succeasors and assigns. Thia Lease is expressly conditioned upon the approval of ita terms and conditions by Lesaor's mortgagee, Dauphin Deposit Bank and Trust Company, of Harrisburg, Pennsylvania. Lessee agrees to execute a consent to the Aaaiqlllllent of Leaa.s executed between Le.sor and its aaid mortgag... W.i ver of CUatoa 18.17 Laaaor shall have the right at all tim.s, any law, usag. or custom notwithstanding. to enforce strictly the provisiona of this Lea.e, and the failure of Lessor at any time or tim.. strictly to enforce any provision her.of sball not be construed as having cr.at.d a cuatom or waiver in any way contrary to the specific provisions of this Lease or a. having in any WilY or l18Mer IIlCIdiried this Laas.. cartaiJa II-Jlhllq.; LiaitatiOJl of L1abiliq- 18.18 Ca> '!'be word .La..... a. used in thia Lea.. lIball be construed to m.an tenanta in all ca..a where there i. more than on. tenant C and in such ca.. the liability of such tenanta shall be joint an4 .everal), and the n.c...ary CjJrlUllll8tical chang.. required to lIII1ke the provisiona hereof apply to corporation, partnerahips or individuals, men or WOllen, shall in all case. be assumed as though in .ach ca.. fully expressed. Each provi.ion hereof lIball extend to and shall, a. the ca.. I114Y requir., bind and inure to the benetit of Lea..e and ita succe..ors and a..igna, provided that this Lea.e shall not inure to the benefit of any a.signee or succe.sor of Les... except upon the expre.. written COMent of Lea.or as herein provided. Cb) 'l'he term "Lessor. a. used in this Laa.. aeaM the f.. owner of the Premi.... In the .vent of the voluntary or inVOluntary transfer of .uch owner.bip or rigbt to a .ucce.sor in inter..t of Leaaor, Le.sor shall be fr.ed and relieved of all liability and obligation hereunder which shall thereafter accru. and ~..ee .hall look 801ely to .uch succes.or in int.r..t for the pertOl'llaJ\c. of the cov.nants and obligations of the Le.sor ber.under which lIball ther.after accrue. 'l'he liability of Lessor and ita .uce..sora in interut, under or with respect to this Lease, aball be .trictly l1aitlld to and enforceable only out of ita or th.u inter..t in the Praai... and the trsct ot real ..tate ot which the Preal... are a part, and shall not be 25 enforc.abl. out of any other assets. No mortgagee or ground lessor which shall succeed to the interest of Lessor hereunder (either in terms of ownership or possessory rights) shall: (1) be liable for any previous act or omission of a prior Lessor, (2) be .ubject to any rental offset. or defen.es against a prior Le..or, (3) be bound by any amendment of this Lea.e made without its written consent, or by payment by Lessee of rent in advance in axe... of one (1) month'. r.nt, (4) be liable for any s.curity not actually received by it, or (5) be liable for any initial construction of the improvements to be made to the Preai... or for any allowance or credit to Le.... for rent, construction costs or other expenses. Subject to the for.going, the provisions hereof shall be binding upon and inure to the ben.fit of the succeasors and assigns of Lessor. captiollUl 18.19 The captions contained herein are for the conv.- nience of the parti.. only. They do not in any way modify, amplify, alter or give full notice of the provisions her.of. ~Ko.~ck \~ <;-/, . I c.-- I rS- a I.giiE: .,. ",," L..."; rranceaco fa \vpvin\k08tict2 21 . EXHIBIT B AFFIDAVIT OF GUI$EPPE RUSSQ The undersigned Affiant, being duly swom according to law and possessed with personal knowledge, information, and belief as to the matters set forth herein, hereby deposes and says as follows: 1. I am a named defendant in Kostick v. Russo. et al. 2. I operate La Fontana Restaurant in Lemoyne, Pennsylvania 3. My rent is generally due on the first of the month. 4. In past months, Paul Kostick has granted me more time to pay the rent if I cannot on the first of the month. 5. In August of 1997, Paul Kostick agreed to give me additional time so that I could pay August's rent 6. Sometime at the end of the first week of August, Paul Kostick agreed that I could pay the rant by the 20th of August 7. At ':00 p.m. on Monday, August 15,1997, I tried to pay my rent to Helen Wood. 8. She would not take the rent and told me that Pau/'s Iawyw said she COl tIc:/n't taIat the f1II'It. 9. I asked her to give me a nobt to show that I tried to pay the f1II'It. I gaw that nca to my Iawyw. 10. Later I found out I was being sued ~..I didn't pay the f1II'It. PETER J. RUSSO, ESQUIRE PA Supreme Court ID: 72897 61 West Louther Street Carlisle, PA 17013 (717) 249-2721 Attomey for Defendant Russo PAUL L KOSTICK tie . IN THE COURT OF COMMON PLEAS . PLK PROPERTIES, . CUMBERLAND COUNTY, PENNSYLVANIA . Plaintiff . . . . Y. . NO. 97-4452 . . . V1NCENZO MARCHIANO and . . GU/SEPPE RUSSO, . . DefIIndants . . Atm..HEYl..MmE8 AND NOW, COMES Defendant. Gulseppe Ruao, by and thraugh his IIIo.ney, PttIIr J. Ruuo and 8nS\1.I11 Plaintlfrs Complairlt In Confeulon of Judgment for Ej.,h._1t and lMl'S the fallowing in support thlleof. 1. Adlllltted. 2. Adtultbod. 3. Aclrr6o.d. 4. Denied. Defendant lacks sufficient knowledge or information so as to form a belief as to the truth or falsity of the averment in paragraph number four. By way of further response, Defendant admits that attached to Plaintiff's complaint was a property description and avers that said description is a written document Which speaks for itself. 5. Denied as stated. Defendant lacks sufficient knowledge or information so as to form a betief as to the truth or falsity of the averment in paragraph number five. By way of further response, Exhibit B of Plaintlfl's complaint appears to be a copy of a lease 8llecllt8d by Francesco Failla but as a written document, said exhibit speaks for itself. 6. Denied as stated. Defendant lacks sufficient knowledge or infonnation so as to form a belief as to the truth or falsity of the averments in paragraph number six. By way of fLI'ther response, Exhibit B of Plaintifl's complaint appears to be a copy of a lease executed by Francesco Failla but as a Writt8n document. said exhibit speaks for itself. 7. Denied as stahod. The co.lbo. a. of the IMlr'IlW1tS in paragraph number lIMn are ~ to a writtan document which speaks for itself and any intwp.~ gloa placed on said document by Plaintlff Ia denied. 8. 0eniec1 The lIYWm4lf\ta SlIt farth in pII'agI'aph eight COl ~, 1ItlIltWl..... wtlic:h do not r'IIqIJQ . response. In the lMnt any portiCll. at the a\WTl1o.1tlo In ~ eight.. dllllltodt.l"'ftlA\, O"1dw1t f\.-o lIlc:Ica tutIIciellt Icnonttdg. or if~ 10 as to form . belli as to the truth or WiIity at the ~ in I*lQlaph tigtlt. 9. Denied as stated. The averments set forth in paragraph nine contain conclusions of law to which a response is not required. Additionally, the Lease is a written document which speaks for Itself and any interpratatlonal gloss placed on said Lease by Plaintiff is denied. 10. Denied. The averments set forth in paragraph ten contain conclusions of law to which a response is not required. In the event any portion of the averments in paragraph ten are deemed factual, Defendant Russo denies the allegation that he was in defau/t of the terms of the Lease by faiting and refusing to make the monthly rent payment in a timely manner as Plaintiff granted Defendant Russo an extension of time in order to submit Augusts rent payment which extended beyond August 15, 1W1, the datil which Defendant Russo attempted to remit the required rent payment to PIaintifrs agent. Said payment was rejected by Plaintifl's agent prior to the Initiation of any suit 11. Denied. The averments set forth in paragraph eleven contain statMlents which do not require a response. 12. Denied. The averments set forth in paragraph t'ftlve cantain ~lla which do not r.quinI.response. 13. AdmIbd. 14. Denied. The averments set forth in paragraph fourteen contain conclusions of law to which a response is not required. By way of further response, Plaintiff failed to comply with the provisions of the warrant of attorney as set forth in the lease agreement. Additionally, the Lease is a written document which speaks for itself and any interpretational gloss placed on said Lease by Plaintiff is denied. WHEREFORE, Defendant demands a judgment dismissing this suit in his favor and against Plaintiff. tfm.MA1IER 1. Defendant. Guiseppe Russo never signed a lease agreement with the PlaintIff which COlitained a COtlfession of judgment clause or warrant of attorney. 2. Defendant. Guiseppe Russo was, at all times relevant hel eta, without ben8IIt of 8dvlc:a and direction from legal counsel. 3. At various times, Including, but not Imlted to, August of 1997, PIalnlIf l..wMd the rights pnMded in Article 2 of the subject lease Bgl ~ by gi" dIllg DafJndant Rullo an tllCtIInIicn of time In ordw to remit t8I1t paymecD. 4. On AuglIIt 15. 1887 at 1 :00 p.m. 0IIfendant rwnltI.s to the PIIIntitf the UTI of One ~ Two Hu'.cIlwd Fifty ($1,2!50.00) oc...... in lawful money of the UnIId 9t -. I. wI'Iic:h Is ... ImClLI'll cMnw lded in I'lia COlI~"1l 5. lhe ~ ~lt QI'I ....9.. 15. 1917 .. 1:00 p.rn. .. refund by Pl.iQlIIf. .... Helen Wood. .-- .;;1 ~ ~~'.-:-' ~....~.:. :~;~~~. -;:.:.::.,.........{lO: :-.~-.....:~.. '::A/~;:'~ ,'~. ,,~~:.:: -_.7"'-:-~' -~~: ~ .;"'":. .:'7:3', .... '",- ........... .' .. ~. -. .~..: ,,' ",:- -'~" ,; _..~. - .. ~ . ~ :~"'~'"7 -. . ~.. . . ~---. ,-"t.. . ~_ .. .t..... -~~...~.. ':.~-::- " .... ?;' , ."-'.-.. . - - - .. - - .. . ~ , .-,-. '-, ~ . _. .:- ".. .-.,....-r. .: _. ..... 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"ji. i_ .. ." . - ~ - - .- .. .... --=- EXHIBIT A The undersigned Affiant, being duly sworn according to law and possessed with personal knowledge, information, and belief as to the matters set forth herain, hereby deposes and says as follows: 1. I am a named defendant in Kostick v. 8usso. et al. 2. I operate La Fontana Restaurant in Lemoyne, Pennsylvania. 3. My rent is generally due on the first of the month. 4. In past months, Paul Kostick has granted me mora time to pay the rent if I cannot on the first of the month. 5. In August of 1997, Paul Kostick agreed to give me additional time so that I could pay August's rent. 6. Sometime at the end of the first week of August. Paul Kostick agreed that I could pay the rent by the 20th of August 7. At 1:00 p.m. on Monday, August 15,1997, I tried to pay my rent to HelIn Wood. S. She wauId not take the fW1t and told me that PauI's Iawyw Slid she ccuIdn't take tM rft. 9. I asked her to giw me a nobt to show that I tried to pay the ttnt. I;IM that nobt to my taw,..,.. 10. Later I found cut I wa *"g ..-1 ~_I didn't pay tM lW'lt. 11. I came to this country from Italy several years ago and I started a family and a business. 12. I have never been to school in the United States. 13. At times, I have difficulty with English, especially with large words and legal terms. 14. When I agreed to operate La Fontana I did not have a lawyer to represent me. Everyone told me that I didn't need a lawyer. 15. I never knew that I gave up any rights when I took over the business. 16. No one ever explained to me that I gave up any rights when I took over the business. 17. The foregoing statement, consisting of sixteen (16) numbered paragraphs, having been made under penalty of law, is true and correct to the best of my knowledge, information an belief. This AtIIdavit is made subject to the penalties of 18 Pa. c.S. S4904 relating to unsworn faIsiftcation to authorities. Data: V.... -'tv Ai...... 27 111I7 ('.... ~ ',:.' 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