HomeMy WebLinkAbout97-04540
~
.l
~
~
~
It Ii
, "
"
I'd
"
I
,
Ij
1,'11'
II:
'iIIJ!
"
1.1
"
"
"
"
I'
"
"
, ,
"
,
,I I I
I,
I '
, ,
"'
~ I
, il
" ' '
. , "
,
Ii \"
,~\
, ,
"
,
, ,
I
,
., :
I
:l- I
"
"
II
,
"
"
"
ii,
, ,
,',I
\1
,
"
"
I
"
"
\ ;
"
"
'i
"
;t,! 'I,
"
"
',j
I '
, ,
"
;1
I'
"
, I
,
,
,I,
;1
;'
I'
"
II',
'.
"
II
"
"
I
,I
'I
i, n
,
,
.,
"
"
I,
'f,
1 '
" , "
,
, I
" " ,
I
,
I , I'
';/ I
I
:1
, "
"1
,"
i'
"
:1,
(]
'II
,
I.
I '!
, ,
"
,
,
"
"
1.,,'1
I '
Ji
,
"
,"
f,GObV'....rj
~,~rb(~'1 (\-".j ~
,\:t.c~lJ t.
.-.........".........."'rp"I'\.. ;)'1\\>" ,"
;llJ;\I~
.. .... .....,. """':~'~:ii?';~~::iii.;;f'
.. ~ ~:a...q\ ~~
',Il'h..'U''''l'J':d ,p
..._....-~~.,.~r.;';1.i[.~,~.7i~r ~j-.......
',;;iJf'. " .....----. ..... -..... .-fr,h.... ." ,,,.-:.
...............:;;;;,;:- ItH,. tI'L ",Vr,'h., C. :'J~t1:)~t- pm' Ulll~"..
._....._......._............-...........-........._..~.....-_._.-...........
Z Dc S
-...... n""'" - "'.(:ll)-~Z'" ....'
00'[
.. ....a.6.:tIHI~nS
^.HIl0U04 ~ O.Id
....--.. --9S'; a'i's' oo' -' .....,. .,... ... -... ........ .,....... ...--..--..i:-~;... .....,.. ....na6eplinod
z~.tZ IB~BO.:J B,JH.IBLIS OO'S[$ 6unsl(OOa
..........60'.. 0'0 Boo, -. '1'S1 BO:'Y' a;iU flAPij"""'" - -........ - ..... n n."" .. -'f Ii)"so;j' 6~nf :fa4 S
..... ..... ... ....... __..... ....... ......... J<l3*\idf.j.~eu-,Hl-l8i1'.9't."t"f:ito\. S-1'~._~11'~tl'...to\l!T'-O l
, 6uJP.Ioooe U.IOMB ^rnp 6uJsq 04M 'JJF.IS4S 'SUFr~ sewo4L 'H
..................................n.......................................... pur .~,)~ut"u.'l~lnddr "\I: q:!^" pa'l!.t.)Wp ":I,~w.lJC JtF ,II;,) uo.:n"H.OC ~:.'C.l!
1,,): ........... .................. ~....- ........................ .......... ......... ...................... ............--..-................................ ~...lrtU U!l!"3!M ='~ P-il5n'CJ
..........61 ,...........................-.......................-.............. .)(1 .\\:p..-.............-...................... "4: uo IJfJ.A\ 'ri:]'=' ~ntJ!... ^8
.'
,
,
M
'"
'"' .-<
'C: '"
I1J .b
,~ ~
.~ .. I
)l ~~
:- QJ E
1 If'. -
1'- ...._~
~I'~~
. >.
~f .. ~ ~g
:;;1' ;: .~
~fi ~n
l: ~ ,g .~!:
. i< N'"
, .-<
, N
1
..,
..:
'-~
--
wZ
tr.'"':
~ ~ .. .
~...-:
. -
;: 1 :ci;:: , . :z ..:
/;l I-<
,i: ~~ , .., : 1:
r- - .
~ . . ~ta
en ~
$ ~;;
~~ ~ .:.
:;1 '<-I ." ,. :'E .
'"' ~ IE !:~ t
.~ f.l.:2:i .~ ..
~ ~~ -
~ ~ ,
U - ..
, i E ,......
0 -"
.,. ;:;c; " .
IJ"l ::'-
~ w -
~ t..; ~ '"
'" -
- II:
,.. ..
~ :z ~
c: ~
;z - ....
0: 0'
...!!L....-9
M: '~ :
IJ"l' "
, "
, ,
, ,
'" *' .... ...
~3: t-~
~,! ! ~
" ~ 0
,.,...
m .-.: Tl
;l:~ -- '.-
, <.,oj .~ ('':'
~1" " '"
J "
OJ 'I
"" -=!
,- ~
. ~ 0
:r.. r' '"
-,-.. ;'. 5r:: '"
~. I'll
J;>. . , :~J
U:l < ~I
-./ ..
'I
,i!
I'
1'1
'I
,."
I I
"
,
,
',:-
;
{
c
"
,.
I"'~ '
I
I
1,)',1
(,I
,,'
. I I
c':
I,
,-
I,
I'
'I
\I
(.,
r"";'
',,\
',r
...,1
I.)
I'
I'
,
I
,-I
I
"
,
'I
,I
"
, "
',,
".1
, ,I.
, I
"
,
, ,
"- ..'S. ~
~~ It:
., ' ,
~~ .. ,
11J~ ('0' j . ,~
1." . ...: ,
; ( ~l .-
I., ~:~ :
VI '\ ~ j
( ~ . ...
'j'" N " ~, J
(;,1 : , I.;
fo.. '. I;Ll
. " .;.-:....
-
t r- '")
c/' 0
'" ...
~~ '" I
.... I
+>
.::
'...
~~ ~ d
0.
, , g~
. . a ~ 51
!i ~ ~
~!
g , " ' i111
:> ~
~ ~ H
c.. !!l~ 1111 [
s; . ~ ~~
u
~ ~ I ~
z ~ ~
H
"
i I' I \
, I
"
, '
i,'
)",., "
,'I ',' ',-"
"
"r:
,
"
I, ,
\
',d
. .
. .
16. Admitted.
17, Denied. Defendant was notified by the tenus of the Commercial Lease that a
Confession of Judgl11ent Clause was contained therein. The remainder of the allegation is a
conclusion ofincorrect law,
18. Admilled.
19. Denied. All necessary notices were served upon the Defendunt. It is denied that uny
right of Defendunt to a hearing or due process has been violated.
20. Denied. The Confession of Judgment Clause specifically pel111its acceleration of all
fees, expenses and costs.
21. Denied. The Confession of Judgment Clause specifically pennits the acceleration of
all fees, expenses and costs. Thc leusc statcs that its beginning date is April. Defendunt has admitted
occupying the premises ITom April I, 1997. Dcfcndant hus not paid his sccurity deposit, has not paid
his rent und has not provided the necessary documentation with regard to protection of the premises.
22. Admitted.
23. Admitted.
24. Denied. The Cumberlund County Prothonotary's Office hus a procedure whereby the
Plaintiff must provide self.addressed stamped envelopes to thc Dcfcndunt in cases of this sort, Sueh
selfaddrcssed stamped envelopcs werc providcd to thc Prothonotary. Thc Prothonotary's Clerk has
confinncd by telcphonic communication that writtcn notice of the entry of the judgment was
delivered to the Defendant in the ordinary course of the operation of the Prothonotary's Office on
August 20, 1997.
'I:
"
v.
: IN THE COURT OF COMMON PLEAS OF
: CUMBERLAND COUNTY, PENNSYL VANIA
: NO. '1'1- 1/-':; '+0
: IN LAW
: CONTRACT
ROBERT C. FITTING, JR"
Plalnllff
RODNEY LEE FAILOR. JR.,
Defendant
NOTICE UNDER RULE 2973.2 OF JUDGMENT A~D EXECUTION
NOTICE OF DEFEND..\NT'S RIGHTS
To: Rodney Lee Failor. Jr.
A judgment lor possession of real property has been entered Jgainst you and in favor of the
plaintiff without prior notice Jnu heuring bused on a confcssion ofJuJgment contained in a
promissory note or other document allegedly executed by you, The sheriff may remove you from
the property at uny time ufter thirty days after the Jatc on which this notice is served on you.
Youll1ay have legal rights to dc:t'eatthe Judgment or to prcvent your being removed from
the property. ANY PETITIO:-l SEEKI:\G RELIEF FROM THE Jl'DGl\IE:-IT :>'IL'ST BE FILED
WITHIN THIRTY 130) DA YS AFTER THE DATE ON WHICH THIS :\OTICE IS SERVED
ON YOU OR YOU :'vIA Y LOSE VOL'R RIGHTS,
YOU SHOULD TAKE THIS PAPER TO VOL'R LA WYER ,\ T O:\CE, IF YOC DO
NOT HAVE A LA WYER OR CANl':OT AFFORD ONE. GO TO OR TELEPHONE THE
OFFICE SET FORTH BELOW TO FIND OCT WHERE Val' CAN GET LEGAL HELP:
:-, V) r=
Lr.; N -..
;::: .. 5....
~~{' ~ .':)Ct~
- ,4.,
\~ .s: .... .~~~
" :\;:..!
(, -::l ~,' It)
., N )~
u:; ';'; ~ -;I:J.l
- .,j-
... ~' ..
,... ,... :J
u C". u
Cumberlund County Lawyer Referral Service
Court Administrator
Cumberland County Courthouse
Carlisle. P A 17013
( 717)240-6200
2.tJ
1
David T, Kluz. Esquire
[,0, Ii 18005
212 Locust Street. Suite 404
Harrisburg. PA 1710 I
1717) 2.18.8183
Attorney t'or Plaintiff
&~'I'o~t " ~.
~;; 0;" r~
...cJ
f', a!~J
III' , "
,
, ! j
".\,
I: , :
,.,f'
'f', I",'
I!'
II;' .
I, I
I "
" ('"., ,
, , I..~~ U
... ~
~~ ...
....
...,
I': ~ 0
~~ ....
III ~ ~
. ~ . ~
~~ . . 5 !
~ 1'3 ~ a ~ ~ ~
. . ~ i i w g
~ . ~ ~ . r
~~ > "'" ~ ~
~ i t~ ~[
H ~ ~
~~ ~ ~ ~ "
...i ,! ~ "
. < g ~
() g ~ m
i ~ N if
:<: ;; ~
:e 0
H I
~
..
~
.
\
~
'!i'! ,J ,I
;I,
'J
"
,
',1,
,I
I,
IV..,,,,,,,,"..,,.......,,...........,.........."..........'''.'''''''...........
ATTOIVlIY
D119ld T. K1uI"
ATTQIINIVAT I.AW
I -"
.,. LCOUIT ITI'lIKf, 1U1.... ~, ,
IoIAIl"IUUI'ICI. ~.VI.VNlIA ,.,'11'1' "
. mn ...,M :'i" ,
, ,- '-,'
~, . , . r ;
.,".-;.'j.....iI~_V
,
" 1'-'
Id! 1,'i,'_'L 'u I
-:,:,-,I:!,~{_f)~'~Wd/.t:-';.-,':"-I/J;I:_li:j;:L -:.'! ~':_: :!' 1.,:-,_: ~ _ _ _ r. ;.:.:.-; .i'.';y:i
,I, '! ,MDOHINII'...,...,ntAtTMIWl'ltlll."".., II :
.\\'--:I-__,~~OP1'HI~"'''-''! _~i.l:-1'
'j,_,:_~,'"I.-!,:'- -- - ":--II';,,..;,;_~__:,!
~,,{ "l'i,~t',i;'i.''';''''''''':~': ........ "-,i':,,":!;;,,", .~.i::~Jij)
,,'" ~~','" ~! 1,
,'J '/'" _' -
TO......"......'''.'''..''...''''........"......''''''..'''''....................
YOU />M HlNIV HOT1~IID TO I'lIAD TO THIIN>
CIJlIID WITHIN TWlNTY ~ DAve DI' 11-
_ O!I DEFAULT JUDQIMINT MAY IIINTIND
AOAINIT YOU.
...
,
"
I
I
~ , ,
" "
!' " .
.,
, " ,I,' "
, , 1 ~,
" " .
'.
,
" I
',I \
. \. "
"
" " '\
" , ,.
"
.
-
..;..'Co..,::-Jl,....,....
, .
,WI DO.....V CI/ITIN THATTHI WITHIN Ie A ~
Nto CllIlMar ~ ~ THI ClIIlIINAI.PIUlIIH n.-
~.
ty'r..'''...''....t-...............'.''.I..............''..............\...0.......
,,' A'rC~8_
','>I h-'h'; ,
.
,
,
I
,
,
i
,
\
.
I
,
'."
I
, ,
i!
,
"
,'I
",
.'
.
.,
,
,I
"
"
Da9id T, Kluz
, ATTOANBV AT LAW
.1. LOQUaT aTAallT. aUITa -
HMAII8UAO, paNN8VI.VANIA "'0'
ell7) .-,n
, '
~'Mi.Mimv..NOTiiiO.TO'N'Aii"TO:TJi.iH:
Cl.ClIID ymHlN lWINT'I PIOI DAn Of IlI/IVlCI
...., OI'IIlII'AULT olUOCIIMIN1 lAAV IIIHT1M11
,~'IOU. '
. ,
-,
IV..............................""......"'''..."........,......''.........''..'
ATTCIINI\' .
;."
...
.
.
.
--~.
:"::.,....-- -- ----" ,- ~.",-,- ..:.;.:.::;:;:-
\
n
6. Th~ Initial agr~~m~nt h~tw~~n th~ purtl~s Inelud~d monthly r~nt at On~ Thousund
Dolllll's and 00/100 ($1,000.00) p~r month alld u wuivcr of a s~eurlty deposit in exehung~ lor
D~lcndunt r~movlng lt~ms. gu.huge WId junk fhull th~ resid~nce and taking ~llorts to r~palr
walls, e~i1lngs WId certuin plumhing fixtures,
7, Upon Defcnduut ~Ilectuuting repuirs to the walls, ceilings WId certain plumbing
fixtures In th~ r~sid~ntial dwelling. Dclendunt discovered thatlhe heating sysl~m was still not in
working order, Upon further invcstigation Defendanland also discovered extensive dwnage und
d~teriorution to c~rtain primury utility systems which wus previously undisclosed to Delcndunt.
including a faulty WId deteriorating c1ectrical system. and a leaking roof
8. DclendlUll orally notified Plaintiff of such deficicncies in the electrical system und
roof and rcquested that such items be repaired in conjunction with the repair to the h~ating
system. to which Plaintiff responded hy agreeing to ellcctuatc thc neccssury rcpairs.
9. Dcfendant has completcd significant rcpairs to the residcntial dwelling, including
repair and painting of walls. cciling, rcplaccm~nt of faulty bathroom and kitchcn fixtures and
replaccment of cxtcnsive faulty plumbing.
10. On or about Junc 23. 1997, thc parties m~t in Plaintiffs office to fonnaliz~ their
prior oral agrccmcnt in the 'orm of a writtcn Icase. At the mceting, the Plaintiff prescnted an
"Agrcement of Commcrcial Lease" (hcrcinal\er referred to as "Leasen) for Defcndant's signature.
A copy of the Lease is attached hereto as Exhibit" A" and incorporated herein by this reference.
II. Unreprcsented by counsel, and believing that the written Lease contained the
swne terms and conditions as the parties prior oral agreement, Detcmdant proceeded to sign said
Lease.
12. In contravention to the prior oral agreement between the parties, the written Lease
did not contain a waiver of a security deposit in exchange for certain improvements made by the
Defendant.
13. In IIddition, to date Plaintitl' has tillled to provide repair or replacemcntof uny of
the detective or absent utilities, including repair or replacement of the residential heating system,
electrical system and leuking ruof.
14. Plaintitl. has nHlterially breached Defendant's implicd warrunty of habitability by
tailing, after receiving notke from Detendant, to provide repair or replucement tor uny of the
detective or absent utilities, including tililure to repair or replace the residential heating system,
electrical system und leaking roof at the residential dwelling.
15. The written Lease, although entitled "Agreeml:nt of Conunerciul Lease," also
included not only u three.bay garage to be used tor commercial purposes, but also a two-story
frame residential dwelling in whkh Detendant und his family had been residing since
approximately April I, 1997, and continue to reside presently.
16. Contained in paragraph sixteen (16) of said Lease is a provision allowing PlaintitT
to confess judgment against Defendant by any attorney of record, which confession of judgment
is not limited to the three-bay garage und commercial buildings on the premises.
17. Plaintitl' gave no disclosure to Delcndant of the provision for confession of
judgment in the Lease und Detendant was not represented by counsel and did not understand the
nature and effect of contession of judgment provision. Ther.:fore, Defendant could not provide a
knowing and intelligent waiver of his due process rights.
18. On or about August 20, 1997, without prior notice, Plaintitl' filed in the Office of
the Prothonotary a Complaint for Confession of Judgment aguinst Defendant in the anlount of
Forty.Two Thousand Three Hundred and 00/100 ($42,300.00) Dollars hased upon the tenns of
the written Lease
19. By failing to disclose the provision for confession of judgment against Defendant,
and including und executing upon said confession of judgment relating in party to a residential
dwelling, Plaintitl' has unduly violated Defendant's right to a hearing and Due Process.
20. Plaintilf. In his Complaint li.Jr Conlesslon of Judgment against Delendunt,
Improperly calculatcd dwnages by Including the lillI value of the unused portion of the lellSe
without applying II fitlr rental value to Dctendunt's credit.
21. Plaintill; in his Complllint flJr Confession of Judgment against Dclendunt,
improperly calculated dunlages by applying intel'est from April I, 1997, on the entire wnountto
be paid over the tenn of the lease,
22. On or about August 20, 1997, Plaintitl'tiIcd in the Otlice of th., Prothonotary a
Conlession of Judgment against Dctendunt in the wnount of Forty-Two Thousund Three
Hundred IInd 00/ I 00 ($42,300.00) Dollars.
23. On or about August 20, 1997, Plaintill' tiled in the Otliee of the Prothonotary, a
Notice under Rule 2973,2 lJf Judgment and Execution, which notice WIIS directed to the attention
of the Defendant.
24. Plaintiff did not tile II Certificate of Service or WlY other certification documenting
service of said notice on the Defendunt.
25. At no time did Defendant receive service of said Notice under Rule: 2973.2 of
Judgment and Execution made upon the Defendant as required by Pa.R.C.P. 2973.2.
26. DefendWlt was first made aware of WlY pending legal action relating to the Lease
on or about October 17, 1997, when Plaintifl's attorney, David T. Kluz, personally served a
Notice to Vacate Premises, a copy of which is attached hereto as Exhibit "B" WId incorporated
herein by this reference.
27. On or about October 17, 1997, Plaintiff tilcd in the Office of the Prothonotary a
Praecipe for Write of Execution Confessed Judgment against Defendunt in the amount of Forty
Three ThousWld Three Hundred Eighty WId 00/100 ($43,380) Dollars.
28. On or about October 17, 1997, the Office of the Prothonotary issued a Writ of
Execution and/or Attachment.
29, On or ubout October 29, 1997, service of suld Writ of Execution and/or
Alluchment Willi mude upon Defimdunt ut 229 Mill Street, Mount Holly Springs, Pennsylvania by
the Cumberland County Sheri 11' Deportment.
30. On or ubout October 30,1997, Pluintifl'uniluterully secured the three-buy glll'age
building where Defendant WlIS operllting his uutomotivc business by use of padlocks, thereby
preventing uccess by Defenduntto his bw;iness and u portion of the leuscd premises.
31. Bused on the ubove, it uppeurs from the record thut Plulntifl's Notice under Rule
2973.2 of Judgment and Execution was not properly served as required Pu.R.C.P. 2973.2.
Accordingly, the Confession of Judgment against dcfendant WIIS entered impropcrly and must be
stricken.
WHEREFORE, Defendant Rodney Lee FlIilor respectfully rcquests that this Court strike
oft. the confessed judgment and issue u rule uguinstthe ubove-numcd pluintiffto show cause why
the judgmcnt entered in thc abovc.cntitlcd action should not be opened, and further stay the
current ull eurrcnt proceedings relating to this matter induding the Writ of Exccution issued
against Dcfendant.
Respectfully submittcd,
IRWIN, McKNIGHT & HUGHES
B~---~kL) )~
~cAnnent, EsqUire
60 West Pomfrct Street
ClII'lisle, Pennsylvaniu 17013
1.0. No. 77946
Attorney for Defendant,
Rodney L. Failor
November 14, 1997
e:Y
AGRBBMEN'l' OF COMMERCIAL LEASE
THIS AGREEMENT, made this 2. '7 day of :J;,,~ , 1997, by
and between ROBERT C, FITTING, JR., of 4530 Coventry Road,
Harrisburg, Dauphin County, Pennsylvania 17109, hereinafter called
Lessor,
tel'" and R r
J'y .>>j-/r.'" sr. #1.;;"11,,;;''5;
RODNEY LEE FAILOR, of R.D. ~ ~, C:lFlillle, Cumberland County,
Pennsylvania 1791s, hereinafter called Lessee.
/,)(1& ;>-
PREMISES and USE: WITNESSETH: That Lessor, in consideration of
the rents hereinafter cOlfenanted to be paid by the Lessee, and in
consideration of the covenants hereinafter stipulated to be
performed by the Lessee and in consideration of the mutual
covenants and agreements hereinafter mentioned, does hereby demise,
let and lease unto the Lessee, for the purpose of operating an auto
repair facility on Mill Street in Mt. Holly Springs. Pennsylvania,
described as follows:
BEGINNING at a point in the center line of the public road
leading from Boiling Springs to Mount Holly Springs (Route No.
21009) at line of land of Robert C. Fitting and Sidney Roth;
thence by said centerline, North 70 degrees 45 minutes East,
366.64 feet, more or less, to the line of land now or formerly
of A.S. Otto; thence by the same, South 17 degrees 45 minutes
West, 198 feet, more or less, to the westerly right-of-way of
the Gettysburg and Harrisburg Railway Company; thence along
said right-of-way line, South 26 degrees 30 minutes West 520
feet, more or less, to the line of land of Fitting and Roth
aforesaid; thence by the latter land, North 03 degrees 59
minutes East 533.16 feet, more or less, to the Place of
BEGINNING.
THE ABOVE described tract of land has thereon erected a two-
story frame dwelling house and a three-bay garage building and
a shed, and other improvements, all of which are known and
numbered 228 Mill Street, Mt. Holly Springs, pennsylvania
17065.
1, TE~ Said premises are leased for a term of three
(3) years beginning the first day of April 1997, and ending the
thirtieth day of April 2000, upon the covenants and conditions
hereinafter set forth.
2. RENT: The Lessee shall pay to the Lessor as rent for
the leased premises during the term of t~~ the total sum of
Thirty-Seven Thousand Eight Hundred ($ 3~,.00.~6) Dollars, payment
in monthly installmentB of one&Sand Dollars ($~~OOO.~on) for
the first year; One 'l'housand llars ($ 1,000. OQJ f\(or the
second year.; and One Thousand d Dollars ($ 1,~~00) for
the third year; with the first payment due on April 1, 1997, and
each successive payment due and payable the first day of each
calendar month during the term of this lease.
3. LATE AND SERVICE CHARGES: A late charge of ten
percent (10%) of the amount of rent due for the monthly rental
period shall be assessed for any payment not made within ten (10)
days after the date it is due and a service charge of Twenty-Five
Dollars ($ 25.00) will automatically be made for each instance in
which a check is returned unpaid by the Lessee's bank for any
reason whatsoever, I f Lessee pays by personal check and more than
one check is returned for insufficient funds or for any other
reason, Lessor has the right to demand cash, a certified check,
cashier's check or money order in payment of full future rents.
4, SECURITY DEPOSIT: Lessee has this date deposited with
Lessor the additional sum of Two Thousand Dollars ($ 2,000.00)
receipt of which is her.eby acknowledged by Lessor as security for
the full and faithful performance by Lessee of the aforementioned
terms, conditions and covenants of this lease on Lessee's part to
be performed and kept and for the cost of, inter alia, any trash
removal, house c leaning and repair or correction of damage in
excess of normal wear and tear,
This security deposit or any balance thereof shall be returned
without interest after the Lessee has vacated and left the premises
in an acceptable condition and surrendered all keys and if the
Lessee shall have made all payments due hereunder and performed all
such covenants and agreements contained herein. If Lessor
determines that any loss, damage or injury chargeable to the Lessee
hereunder exceeds the security deposit, the Lessor, at his option,
may retain the said sum as liquidated damages or may apply the sum
against actual loss, damage or injury and the balance thereof will
be the responsibility of Lessee. It is further understood and
agreed that the said security deposit is not to be considered as
the last payment under this Lease, but that should the Lessee be in
default in the payment of any rent herein reserved or any portion
thereof, Lessor may at Lessor's option appropriate and apply any
portion of the security deposit as may be necessary to the payment
of the overdue rent or other sums expressly constituting rent
hereunder.
2
5. ACCEPTANCE and DELIVERY: Lessee acknowledges that he
has examined the leased premises and his acceptance of this
agreement is conclusive evidence that said premises are in good and
satisfactory order and repair unless otherwise specified hereinl
and the Lessee agrees that no representations as to the condition
of the premises have been made and that no agreement has been made
to redecorate, repair or improve the premises unless hereinafter
set forth specifically in writing. The Lessor will deliver the
leased premises and all common areas in a clean, safe and sanitary
condition, free of rodents and vermin and in complete compliance
with all applicable laws.
6. SPECIAL PROVISIONS:
conducted on the premises except
of an auto repair facility.
No salvage operations are to be
those incidental to the operation
7, LESSEE'S DUTIES:
will, without demand:
a. REN~ Pay the rent and all other charges herein
reserved as rent, on the days and times that the same are made
payable, without fail, and if Lessor shall at any time or times
accept said rent or rent charges, or other required payments, after
the same shall become due and payable, such acceptance shall not
excuse delay upon subsequent occasions, or constitute or be
construed as a waiver of any of Lessor's rights, including Lessor's
right of distraint and other process.
Lessee covenants and agrees that he
b. GOOD ORDER and REPAIR: Keep the demised premises
in good repair during the term of this lease, reasonable wear and
tear and damage by accidental fire or other casualty not occurring
through negligence of Lessee or those employed by or acting for
Lessee alone excepted. The Lessee agrees to surrender the demised
premises in the same condition in which he has herein agreed to
keep the same during continuance of this lease.
c, SIDEWALKS and TRASH: Keep the demised premises,
including the sidewalk in a clean and orderly condition at all
times. In addition, Lessee shall be responsible for garbage or
trash removal, and for removal of snow and ice in accordance with
Borough and/or other applicable ordinances.
d. UTILITIES: Pay the following utilities as the
same become due and payable: The Lessee is responsible for the
payment of all utilities on the premises, including but not limited
to electric, oil and water and sewer.
3
e, GOOD ORDER and REPAIRI Lessee further agrees that
Lessee is responsible for all repairs of any type whatsoever to the
property, including mechanical malfunctions, changes or any other
condition which is of major consequence, and Lessor is relieved
from any obligation to perform any repairs on said property
whatsoever.
f. ORDINANCES and REGULATIONS!. Comply with any
requirements of any of the constituted public authorities, and with
the terms of any statute of the Commonwealth of pennsylvania or the
federal government or local ordinance or regulation applicable to
Lessee or the use of the demised premises and save Lessor harmless
from penalties, fines, costs or Jamages resulting from failure to
do so. Lessee shall be responsible for obtaining from the proper
municipal, county, state and other authorities such permits as may
be required for the operation and maintenance of an auto repair and
restoration facility, including all costs associated therewith,
including any zoning variances required. Lessee agrees to correct
any and all deficiencies found as a result of any inspections
performed by any of the constituted public authorities aforesaid
and agrees to pay the costs thereof.
g, TAXES: Pay any and all taxes due as a result of
the operation of said business. Lessee promptly will pay all local
property taxes upon presentation of said tax bill and will provide
proof of such payment to Lessor without demand.
h. CONDUCT OF BUSINESS: That it will not carry on
any unlawful or immoral business in or about the demised premises,
and will not carryon any business which will endanger the
buildings from fire or cause a forfeiture of any fire insurance
that the Lessor has or hereafter may have on the buildings.
1. INSURANCE: Carry publ ic liabil i ty insurance and
fire, extended coverage, vandalism and malicious mischief coverage
on the demised premises, for the mutual benef it of Lessor and
Lessee, such insurance to afford protection to the limit of
$ 300,000 in respect to the injury or death of a single person, and
$ 500,000 in respect to anyone accident, and to the limit of
$ 20,000 in respect to property damage. Lessee covenants and
agrees to pay the premium charged for such insurance coverage, and
Lessee shall furnish certificates of such insurance policy or
policies upon each purchase of such insurance, stating therein the
number of each policy, the name of the insurer, the amount of
insurance under each such policy, and the date of expiration of
each such policy, and shall from time to time, whenever required,
satisfy Lessor that such policy or policies is or are in full force
and effect. Such insurance shall be procured from a reasonable
insurance company or companies, reasonably satisfactory to Lessor,
and authorized to do business in the Commonwealth of Pennsylvania.
4
In case Lessee shall at any time fail, neglect or refuse to obtain
the insurance required by this insurance paragraph, and to keep the
same in force as provided therein, the Lessor may, at his option,
procure or renew such insurance, but such election by the Lessor
shall be at Lessee's expense and chargeable to the Lessee as
additional rent.
j. PLATE GLASS INSURANCE: Carry in a standard company
full coverage insurance on all plate glass in said premises and
cause same to be replaced if chipped, cracked or broken, said
insurance policy or certificate from Lessee's insurance company to
be deposited with Lessor and any such policy to provide that it
shall not be cancelled for any reason unless and until Lessor shall
be given fifteen (15) days' notice in writing by the insurance
company.
8. CONSEN'r: Lessee covenants and agrees that he will
do none of the following things without the consent, in writing, of
Lessor first had and obtained:
s. AFFECT LESSOR'S INSURANCE: Do or suffer to be
done any act, matter or thing objectionabl~ to the fire insurance
companies, whereby the fire insurance or any other insurance now in
force or hereafter to be placed on the demised premises, or any
part thereof, or on the buildings of which the demised premises may
be a part, shall bocome void or suspended, or whereby the same
shall be rated as a more hazardous risk than as at the date of the
execution of this lease, or employ any person or persons
objectionable to the fire insurance companies, or carry or have any
explosive matter of any kind in and about the demised premises, and
should any act or neglect of the Lessee or the nature of Lessee's
business cause an increase or increases in fire insurance premiums
upon the demised premises and/or the buildings of which the demised
premises are a part due to an increase in the rate of fire
insurance in excess of the rate on the demised premises at the time
of the making of this lease, Lessee agrees to pay to Lessor as
additional rent said increase or increases.
b, ASSIGNME~T: Except as otherwise specifically set
forth herein, assign this lease nor sublet the premises or any part
of the premises covered by this Lease without the prior written
consent of Lessor.
c. RENOVATIONS: Make any renovations or structural
changes, additions or improvements to the leased premises without
having first obtained Lessor's wri tten consent, which consent shall
not be unreasonably withheld. Such changes, additions or
improvements shall be made at Lessee's expense, and shall become
property of the Lessor upon termination of this lease.
5
!}. INSPECTI.QlU Lessee covenants and agrees that Lessor
shall have the right at all reasonable times by himself or his duly
authorized agents to go upon and inspect the demised premises and
every part thereof. ThJ.s provision shall authorize the Lessor to
post a "For Rent" sign and to show said premises at reasonable
hours to prospective tenants during the last ninety (90) days of
the term herein. This provision shall also authorize the Lessor to
post a for sale sign at any time during the term of this lease or
any renewal thereof and to show said premises at reasonable hours
to prospective purchasers.
10, PERSONAL PROPERTYI Lessor shall not be responsible for
damage from any cause to personal property of I,essee in the leased
premises, and Lessee shall be required to carry his own insurance
on such personal property.
11. INDEMNIFICA:J,'ION: Lessee will indemnify the Lessor from
all claims, demands and damages for injuries to person or property
arising from or in any manner connected with the occupancy or use
of the leased premises by Lessee, and from any and all other
claims, demands, liens, damages, fines or penalties of whatever
name, nature or kind, in any way or manner chargeable to or payable
for, or in respect to the use, occupancy or ownership of the leased
premises, or from any act or omission of the Lessee, his servants,
agents, representatives, tenants, guests, invitees, licensees,
customers, or any other person, firm or corporation in or about or
adjacent to the leased premises, except insofar as the negligence
of the Lessor is the proximate cause of such claims, demands,
liens, damages, fines or penalties. Lessee will pay all costs,
expenses and attorney's fees incurred by or imposed on the Lessor
in prosecution or defense of any suit, action or proceeding
predicated upon an alleged breach of any undertaking by the Lessee
under the terms of this Lease, or for or which the Lessee has
covenanted to indemnify the Lessor under the terms of this Lease,
or would be bound by law to indemnify the Lessor.
Lessee shall bear, pay and discharge, when and as the same
become due and payable, all judgments and lawful claims for damages
or otherwise against Lessor or his property arising from injury or
damage to the person or property of Lessee, or of any clerk, agent,
employee, servant, invitee, customer, licensee or visitor upon the
demised premises, or the sidewalks on or adjacent to said property,
including injury and damage caused by the operation of Lessee's
business or by fixtures, machinery, apparatus or appliances in or
upon the demised premises; and will assume the burden and expense
of this lease, and will protect, indemnify and save harmless
Lessor, his agents, servants, employees, and the public at large,
by reason of or on account of the use or misuse of the premises
hereby leased, or any sidewalk on or adjacent to the said premises
or any part thereof.
6
12, ADDITIONAL RENT. In the event of the failure of Lessee
to promptly perform any of the covenants and conditions of this
Lease, Lessor may go upon the demised premises and perform such
covenants, the costs thereof, at the sole option of Lessor, to be
charged to Lessee as additional and delinquent rent.
13, LESSOR'S OBLIgATIONS:
he willi
Lessor covenants and agrees that
a.
notification
Lessee.
REAl, ESTATE TAXES: Provide to Lessee any
of real estate tax due on the property for payment by
b, INSURANCE: At his own cost and expense, carry
fire and extended coverage insurance on the leased premises. All
proceeds from insurance for damage or destruction done to the
building will be paid to Lessor, and Lessee will have no claim for
said proceeds. Lessor is not requiI.ed, however, to carry or
maintain insurance on any of the personal property of Lessee, his
successors or assigns,
14.
premises
then:
FIRE: In the event of the destruction of the demised
bY-fire, water damage, governmental action or acts of God,
a, In the event that the demised premises are totally
destroyed or so damaged by fire or other casualty not occurring
through fault or negligence of the Lessee or those employed by or
acting for him, that the same cannot be repaired or restored within
a reasonable time, this lease shall absolutely cease and determine,
and the rent shall abate for the balance of the term.
b. If the damage caused as above be only partial and
such that the premises can be restored to the then condition within
a reasonable time, the Lessor may, at his option, restore the same
with reasonable promptness, reserving the right to enter upon the
demised premises for that purpose. The Lessor also reserves the
right to enter upon the demised premises for that purpose. The
Lessor also reserves the right to enter upon the demised premises
whenever necessary to repair damage caused by fire or other
casualty to the buildings of which the demised premises are a part,
even though the ef,fect of such entry be to render the demised
premises or a part thereof untenantable. In either event, the rent
shall be apportioned and suspended during the time the Lessor is in
possession, taking into account the proportion of the demised
premises rendered untenantable and the duration of the Lessor's
possession. If a dispute arises as to the amount of rent due under
this clause, Lessee agrees to pay the full amount claimed by
Lessor. Lessee shall, however, have the right to proceed by law to
recover the excess payment, if any.
7
c. Lessor shall make such election to repair the
premises or teL1ninate this lease by giving notice thereof to Lessee
at the leased premises within thirty (30) days from the day Lessor
rece1.ved notice that the demised premises had been destroyed or
damaged by fire or other casualty.
d. Lessor shall not be liable for any damage,
compensation or claim by reason of inconvenience or annoyance
arising from the necessity of repairing any portion of the
building, the interruption in the use of the premises, or the
termination of this lease by reason of destruction of the premises.
e. The Lessor has let the demised premises in its
present condition and without any representations on the part of
the Lessor. It is understood and agreed that Lessor is under no
duty to make repairs or alterations at the time of letting or at
any time thereafter, except as otherwise provided for in this
agreement.
15. DEFAULT: If the Lessee:
a, Does not pay in full within ten (10) days from the
date it is due any and all installments of rent, and/or does not
pay in full when due other charges or payments herein reserved,
included or agreed to be treated or collected as rent, and/or any
other charge, expense or cost herein agreed to be paid by the
Lessee, or
b. Vacates the demised premises, or removes or attempts
to remove, or mani fests as intention to remove any goods or
property therefrom otherwise than in the ordinary and usual course
of business, without having first paid and satisfied the Lessor in
full for all rent and other charges then due or that may thereafter
become due until. the expir.ation of the term above mentioned, or
c. Fails to observe or perform any of the other terms,
covenants or conditions of this lease on the part of Lessee to be
observed and performed, which failure persists after the expiration
of twenty (20) days from the date Lessor gives notice to Lessee
calling attention to the existence of such failure, provided
however that if the matter which is the subject of the notice is of
such a nature that the same cannot reasonably be corrected within
twenty (20) days, then no default shall be deemed to have occurred
if Lessee, before the exploration of the twenty-day period from the
date of giving of the aforesaid notice by Lessor, commences the
curing of the default and diligently prosecutes the same to
completion, or
B
d. Becomes insolvent or makes an assignment for the
benefit of creditors, or if a petition in bankruptcy is filed by or
against the Lessee, or a bill in equity or other proceeding for the
appointment of a receiver for the Lessee is filed, or if
proceedings for reorganization or for composition with creditors
under any state or federal law be instituted by or against Lessee,
or if the real or personal property of the Lessee shall be sold or
levied upon by any Sheriff,
Then and in any or either of said events, there shall be deemed to
be a breach of this lease, and thereupon and without entry or other
action by Lessor:
1, The rent for the entire unexpired balance of
the term of this lease, as well as all other charges, payments,
costs and expenses herein agreed to be paid by the Lessee,
including but not limited to legal expenses and attorney's fees,
including those incident to the recovery of possession, brokerage
and/or putting the demised premises in good order or for preparing
the same for re-rental, or at the option of Lessor any part
thereof, and all costs, shall, in addition to any and all
installments of rent already due and payable and in arrears, and/or
any other charge or payment herein reserved, included or agreed to
be treated or collected as rent, and/or any other charge, expense
or cost herein agreed to be paid by the Lessee which may be due and
payable and in arrears, be taken to be due and payable and in
arrears as if by the terms and provisions of this 18ase, the whole
unpaid balance of unpaid rent and other charges, payments, taxes,
costs and expenses were on that date payable in advance; and if the
lease or any part thereof is assigned, or if the premises or any
part thereof is sublet, Lessee hereby irrevocably constitutes and
appoints Lessor as Lessee's agent to collect the rents due by such
assignee or sublessee, and apply the same to the rent due
hereunder, without in any way affecting Lessee's obligation to pay
any unpaid balan~e of rent due hereunder, or in the event of any of
the foregoing at any time at the option of Lessor;
2. This lease and the terms hereby created shall
determine and become absolutely void without any right on the part
of the Lessee to save the forfeiture by payment of any sum due or
by other performance of any condition, term or covenant broken;
whereupon Lessor shall be entitled to recover damages for such
breach in an amount equal to the amount of rent reserved for the
balance of the term of this lease and other charges, payments,
CO&ts and expenses referred to in subparagraph 1 hereof.
9
16. RBMEDIBS I
forth in paragraph
behalf, at Lessor's
In
15, the
option I
the event of any default as above set
Lessor, or anyone acting on Lessor's
a. May without notice or demand enter the demised
premises for the purpose of distraining or levying on any goods or
ohattels therein.
b. May lease said premises or any part or parts thereof
to such person or persons as may, in Lessor's discretion, seem
best, and the Lessee shall be liable for any loss of rent for the
balance of the then current term.
c. If rent and/or any charges hereby reserved as rent
shall remain unpaid on any day when the same ought to be paid,
Lessee hereby empowers any Prothonotary or attorney of any court of
record to appear for Lessee in any and all actions which may be
brought for rent and/or the charges, payments, costs and expenses
reserved as rent, or agreed to be paid by the Lessee, and/or to
sign for Lessee an agreement for entering in any competent court an
amicable action or actions for the recovery of rent or other
charges or expense, and in said suit or in said amicable action or
actions, to confess judgment against Lessee for all or any part of
the rent specified in this lease and then unpaid, including, at
Lessor's option, the rent for the entire unexpired balance of the
term of this lease, and/or other charges, payments, costs and
expenses reserved as rent or agreed to be paid by the Lessee, and
for interest and costs together with attorney's commission of ten
percent (10%). Such authority shall not be exhausted by one
exercise thereof, but judgment may be confessed as aforesaid from
time to time as often as any of said rent and/or other charges
reserved as rent shall fall due or be in arrears, and such powers
may be exercised as well after the expiration of the original term
and/or during any extension or renewal of this lease.
d. When this lease shall be determined by a condition
broken, either during the original term of this lease or any
renewal or extension thereof, and also when and as soon as the term
hereby created or any extension thereof shall have expired, it
shall be lawful for any attorney, as attorney for Lessee, to file
an agreement for entering in any competent court an amicable action
in judgment and ejectment against Lessee, and all persons claiming
under Lessee for the recovery by Lessor of possession of the herein
demised premises, for which this lease shall be his sufficient
warrant, whereupon, if Lessor so desires, a Writ of Possession may
iSSue forthwith, without any prior proceedings whatsoever, and
provided that 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
10
shall have the right upon any subsequent default or defaults, or
upon the termination of this loase as hereinbefore set forth, to
bring one or more amicable action or actions, as hereinbefore set
forth, to recover possession of the said premisos.
17. ~LATIVB EFFBCT~ All the remedies hereinbefore given
to Lessor and all. rIghts and remedies given to him by law and
equity shall be cumulative and concurrent. No determination of
this lease or the taking or recovery of the premises shall deprive
Lessor of any of his remedies or actions against the Lessee for
rent due at the time, or which, under the terms hereof, would in
the future become due, as if there has been no determination, or
for sums due at the time of which, under the terms hereof, would in
the future become due as if there has been no determination, nor
shall the bringing of any action for rent or breach of covenants,
or the resort to any other remedy herein provided for the recovery
of rent, be construed as a waiver of the right to obtain possession
of the premises. Similarly, no exercise of any of Lessor's right
given to him by law and equity, or exercisable in accordance with
the terms and provisions of this lease agreement, shall deprive
Lessor of any of his remedies or actions against th~ Lessee under
the terms of the Agreement of Sale referred to hereinabove.
18. SUBORDINATION: This lease is subject and subordinate
to the lien of all mortgages now or at any time hereinafter placed
upon any part of Lessor's property, to extensions or renewals
thereof, and to all advances now or hereafter made on the security
thereof. Lessee agrees, on request, to execute such further
instruments evidencing such subordination as Lessor may request,
and if Lessee fails to do so, Lessor is empowered to do so in the
name of Lessee.
19. MECHANICS' LIENS: The Lessee shall have no right to
encumber or subject the interest. of the Lessor in the demised
premises to any mechanics, materialmens or other liens of any
nature whatsoever, and upon the filing of any such lien, the
failure of the Lessee to have the same removed from record promptly
shall constitute a violation of this agreement and entitle Lessor
at this opt.ion to taken any legal action elsewhere in this
agreement reserved to said Lessor.
20. FIRE EXTINGUISHERS: Lessee agrees to supply and
maintain at his own expense any fire extinguishers or other fire
prevention equipment required by law, rules, orders, ordinances and
regulations of any city, county or state in which the demised
premises are located, and/or required by any underwriters
association, bureau or any other similar body having jurisdiction
involving said premises.
11
21. SIGNSI Lessee will place no signs, awnings or curtains
on any part of the exterior of said premises or on any show window,
nor paint any brick or stone work, cornice work, mill work or iron
work on the front of said premises without the written consent of
Lessor or its agent first had and obtained. Such consent shall not
be unreasonably withheld.
22. QUIET POSSF.SSION: It is further understood and agreed,
that subject to the terms of this lease, Lessee, paying the rent
hereby re6erved, and performing and observing the several covenants
hereof, may peacefully hold and enjoy the said premises throughout
the duration of this lease without any interruptions by the Lessor,
his heirs or. assigns or any person lawfully claiming through him.
23. LESSOR NOT A PARTNER: It is expressly understood that
the Lessor shall not be construed or held to be a partner or
associate of the Lessee in the conduct of his business; it being
expressly understood that the relationship between the parties
hereto is and shall remain at all times that of Lessor and Lessee.
24. APPLICATION OF PAYMENTS RECEIVED FROM LESSEE: lessor
shall havu the right to apply any payments made by Lessee to the
satisfaction of any debt or obligation of Lessee to Lessor
according to Lessor's sole discretion and regardless of the
instructions of Lessee as to the application of any such sum,
whether such instructions be endorsed upon Lessee's check or
otherwise, unless otherwise agreed upon by both parties in writing.
The acceptance by Lessor of a check or checks drawn by others than
Lessee shall in no wise affect Lessee's liability hereunder nor
shall it be deemed an approval of any assignment of this lease by
Lessee.
25. HOLDOVER: Should Lessee continue in possession after
the end of the term herein without renewal as provided for in
Paragraph 3 hereof, but with the pennission of Lessor, it is agreed
that the tenancy thus created can be terminated by either party
giving to the other party not less than thirty (30) days' written
notice to expire on the day of the month from which the tenancy
commenced to run. In so continuing, Lessee agrees to pay the
monthly rental provided for herein and to keep and fulfill all
other covenants, conditions and agreements.
12
26. LESSOR'S ENTRY AT BND OP LEASE! If during the last
month of the term of this lease or any renewal or extension of the
said term Lessee shall have removed all or substantially all of the
Lessee's property from the premises, Lessor may, prior to the
expiration or termination of the term of the lease without
releasing Lessee from any obligations to repair or restore the
demised premises or to pay the rent in full, and without any
elimination or abatement thereof, immediately enter upon and alter
renovate and redecorate the premises.
27. NOTICE I All notices which are required or are permitted
to be given hereunder shall be in writing and shall be deemed to
have been duly given if personally delivered or sent by United
States certified mail, prepaid I
(a) If to Lessor, addressed tOI
Robert C. Fitting, Jr.
4530 Coventry Road
Harrisburg, PA 17109
(b) If to Lessee, addressed tOI
Rodney Lee Failor
R.D. # 5
Carlisle, PA 17013
Such addresses may be changed at any time and from time to time by
like written notice given by either party to the other.
28. OTHER PROVISIONS: The paragraph titles appearing in
this lease are for purposes of each reference and shall not be
considered a part of this lease or in any way to modify, amend, or
affect the provisions thereof.
29. BINDING EFFECT: All rights and liabilities herein
given to or imposed upon the respective parties hereto shall extend
to and bind the several and respective heirs, executors,
administrators, successors and assigns of said parties. No rights,
however, shall inure to the benefit of any assignee of Lessee
unless the assignment of such assignee has been approved by Lessor
in writing as aforesaid.
13
"
, ,
, I
"
,
fj~ F':' "
_0 ,
o~ c:: ~~
I" .. "'."1
lU~;) .:1 t',) '~~
C)".' ". !~) :~. ,
f ,( ,j-,.. ,.'
t--'J ~J... 11i:;J
~t _7 . 'r.)
,. "- "
'..-,I. {,j~l
rh, :;.,J .J(e
i.- F' ~d
1'- ~ ~
U.. r0-
O (J"
"
"
,
"
,
"
"
,I "I
t ,I
,
it: ..:I' ~ %
" - -g" ("'()
i"
II I~") M ."'~..( (Y) ..3
,-:)1:.... 8
t;!(-,; :x: ,. ,,,-, .9 ()o
,~'"
.1..-, n.. l'.)~i - 1.0
lljl, "j< ~
1 (-, 0::> ;',1ii 0- "'It
~:> - .ld) 1
j,.:t;_; :~.. :!II:\J II: j
0 ',f ~t.::. U
i" z
I!J ~ ~
I,
,
",
"
"
,
,
"
, I
..,
,
"
"
in
.,:
1-"
n
1.\,1 ~
(~. ,
l....".
, ,
(.1." ~
lL'l r
" ~ t
l,_
I
I'
o
-
.n'
-
/!)
>.
f,~,:
.:,
~:fJ;;;
.... ~i:
::.<
~ ;;!
1/.)
.\,1....
,',~ ;(..
I'll....
,iJI.l..
0'
'5
.U
:r.:
CJ,...
<'::)
-
~-
L,~
:;.1:;
~
.:{
a
-s..
o
o
\i>
-
,
Qt
~~
:;~
3~
"
, ,
"
~ Ii
.
8
8 ~
.
0 ~
~ '11\I ~
~ i
"2
U ~
I'
'r'
" Ii
ij
"
"
I,
ROBERT C. FITTING. JR,.
Plaintiff
: IN THE COURT OF COMMON PLEAS OF
: CUMBERLAND COUNTY. PENNSYL VANIA
v.
: NO. 97-4540
RODNEY LEE FAILOR. JR,.
Defendant
; IN LAW
: CONTRACT
PRAECIPE FOR WRIT OF EXECUTION
CONFESSED JUDGMENT
TO THE PROTHONOTARY:
Issue a Writ of Execution in the above maller, directed to the Sheriff of Cumberland County.
against Rodney Lee Failor. Jr,. Defendant. )2'1 /Gi, " ,~, IJ{ 4(ly 0H 0'\05
fit 1'/06r
REAl. DEBT: {~t'>'V\t( (.
Principal sum $ 36.000.00
Interest from April 1, 1997 $ 3.780.00 p~l,ru(O'
Attomey's fees $ 3.600.00 (Dl'('J, ~'Ln(,U.J
TOTAL DEBT: $ 43,380,00 C~? . NI"''-O
I (lJ.<; t(
COSTS PAID: r-< d,,~k Y".
Prothonotary $
Sheriff $--
Statutory $
TOTAL COSTS: $
AMOUNT DUE: $
It is hereby certified that: , ,
1) This praecipe is based upon a confessed judgment; and
2) The Prothonotary is authorized to issue this praecipe because notice will be served
with the Writ pursuant to Rule 2873,2.
All mey for Defendant
)f) t,'ill('j/
{-lfJ'1 /U
1I'I.)jJ
t.
,
//{Ol
51 J j
Jfr
4(Jq
#
.f:> .!
,f "
10 '-
'..
i'r~ .,.:;
i ..
t:1l I;'.;
" '~ l
I" ',"
t..!; 1"1' )
r.J , I
(.i-l "
I I
u <. ,
,c..; ~:.:J
L: r- V
t.:.) <J'
~ .~
~~.....r-
'1......,.1'\
"
:t:
.,
N
V)
tV')
-...s
~
~,C;
,~ ,""-"
'- ........
\~z. ',..\,
~ ~~3
.~ ~
'-
.,
~~~
,,,
"
i
:"1
, '
.,
, '\
"
"I
:'
"
, I
,
I'
'."
TO I I, ,
vou'....~..NOTiPiO..fO.;;:UO'fO.THi.it
Cl.ClIIO WITHItl 'I'NItlTV~ DAve Of IIlWlCI
_ 011 WAULT.It IlT MAY III1N11111l1
,."".., YOU,
IY.".",.............."...."..."..................,....'........"...,"~".....
ATTOIIHIIY
"
~ T. KluI',
A1"fOIlINI'V'j\T V,W I
." l.ClCuwr 1ffJ'III1'I!. "'lT1IlI04
HAIllllllllUlICI, .....NavLV~1A ,,\1,.,
(711') -*'11' " I
I '/;,,',', ,',_I;' ),',t/!\~I'[,.i,:~,;:.',~,. ,;.;~!,; \1,' '0,':<1:_.' I., ,'" "-~,,
Ii' ',;_\,I.,'djf.\~".-.I""';- -I,., '~d; Akf""I-! U,'\.-.:.__J,.:;.,~..,/"!:'Ij -IL',""';';' ~;,I.-.-" 'j ",
'" ,..; '_ ',',' ;i;t~r:f/ ,<',[/;; . ,.1:' 7' l'}I"""'-'," _ ,'to, J,.'> 'H ~. U . ""'1':..' II,' . ~".
", ('-';):"':;-'~\f."" : ',...\,..'-.".;..11.....1 ,,,',1,.'1'" ,t, ""'t"_.!.I."",;:q"I1/
. . .' ." "*'~ ",,<
1,,)I"','iJ' . _' ,.i)"1
",J"Ui\'''ii\"' ' _,', . ",,., ,'-... ,.'__1/"
,_,\' '.".'_,' :, I,.",-,'{;" ,. . :'.. .!",-,.('J!." ~,,!-:"l,.,i\-~~!"
,j_. t". ".'H, ~ ,,',.<'L. 'c'.'.:' i'" ',',-' ,1-..",'.'1' ;!.>....li{'.I!~'" :'1';.>1
I, ~1.....IIIH~"......,,..m~....,.~;'".:...'hH_h'rt " ~';~"
" 'If:~r; /i' /',1, IJ ' , AnaJU,~'f,I:~,lfl~?!Z "fi'(~I~:~1
J Ii, \ '. . t'" I ,J,' \ f 'r! ~.I1WtJ,f;l, fJf{J, < i,
",' 'lll-.- d ;',' .t".,!",.]."H\< ,...,'\ '
,,,,~'''"I,..,.-il~'~''
...
.
..
\
..
I,
Ij
.F',
,,.
,
,
I"
~,jj
,
I'
,;
.,'k,
i ;<~
: ~,
i,'
.
;1
"
I;
,li.1
I
lit
:~':' c~~ .'~''T
(
\
,I
I'
,;
\';'
',-~
I .
,
\
i'
I
!
I
I
I ,
" ,,'
.,
..
" ,
,
" , I,"
" :11
I' I'
\
~
.
"~I
~
q
I I'
'I"
1,/
, ~ I
...
,..;''1-.1
'~ .'
.
-"j
II
\
.'
,f
'I';
; "
~'AM'HiMiY"NOTiiDT(r~';:o"'- '
(:l.OIIIl WIlHIII 'lWI/lTY 11IOI DAVI Of iIII'/ICI
HIMOI' DR DlJAAT IJDCII""llT t/AV.iNJIIlID
~VOU., "
.'1...............................................1....1..........,.....:...........
AT'rDI\IIIY
DO'fid T. lUua
ATTOI'NI'" "T V.W
, '
. '1' LOOU.T wr"''''' 'UI~ - ,
HAA"IUU"D. 'INN....L\lANI" 17101
(717) -'IP
,
" .. "-".. '. ,- """""".,;,:'
.Q;r~~~r..;~
" ,
t"'1.I+I,,..If..'.,."tjl..I".t.'.I'~..~iV.toIlj..........,,,,..1...,..,..
f, ,~ "
, . .
,I
'" 'I
ji
"
,j;~JJ~'tHNk-M~l!tW~~L..,dJ'.. .r-
...
.
I
.
,I",
"
(
;
,
..
I Ii I"
"
"
,\ ~
II ;-1
\
"
,
I:
,
,~
'_.f,;.:~__
";,~"
r'......-:.,:.~~';-..:;.. ,
ty
AGREEMENT OF COMMERCIAL LBASB
THIS AGREEMENT, made this 22-- day of :J;,,~ , 1997, by
and between ROBERT C. FITTING, JR., of 4530 Coventry Road,
Harrisburg, Dauphin County, Pennsylvania 17109, hereinafter called
Lessor,
/e.1' and Ii r
,fY >>rlr.'" Jr. It'f./fr//"y",;
RODNEY LEE FAILOR, of ~ # S, ('U'li~le, Cumberland County,
pennsylvania 1781J, hereinafter called Lessee.
I'>(J(,:J-
PREMISES and USE: WITNESSETH: That Lessor, in consideration of
the rents hereinafter covenanted to be paid by the Lessee, and in
consideration of the covenants hereinafter stipulated to be
performed by the Lessee and in consideration of the mutual
covenants and agreements hereinafter mentioned, does hereby demise,
let and lease unto the Lessee, for the purpose of operating an auto
repair facility on Mill Street in Mt. Holly Springs, Pennsylvania,
described as follows:
BEGINNING at a point in the center line of the public road
leading from Boiling Springs to Mount Holly Springs (Route No.
21008) at line of land of Robert C. Fitting and Sidney Roth;
thence by said centerline, North 70 degrees 45 minutes East,
366.64 feet, more or less, to the line of land now or formerly
of A.S. Otto; thence by the same, South 17 degrees 45 minutes
West, 198 feet, more or less, to the westerly right-of-way of
the Gettysburg and Harrisburg Railway Company; thence along
said right-of-way line, South 26 degrees 30 minutes West 520
feet, more or less, to the line of land of Fitting and Roth
aforesaid; thence by the latter land, North 03 degrees 59
minutes East 533.16 feet, more or less, to the Place of
BEGINNING.
THE ABOVE described tract of land has thereon erected a two-
story frame dwelling house and a three-bay garage building and
a shed, and other improvements, all of which are known and
numbered 228 Mill Street, Mt. Holly Springs, pennsylvania
17065.
1. TERM: Said premises are leased for a term of three
(3) years beginning the first day of April 1997, and ending the
thirtieth day of April 2000, upon the covenants and conditions
hereinafter set forth.
2. RENT I The Lessee shall pay to the Lessor as rent for
the leased premises during the term of thJ~ the total sum of
Thirty-Seven Thousand Eight Hundred ($ 3~,.OO.~O) Dollars, payment
in monthly installments of one~sand Dollars ($~OOO~on) for
the first year; One Thousand llars ($ 1,0"0. OCU 1\ tor the
second year; and One Thousand d Dollars ($ 1,~t.OO) for
the third year; with the first payment due on April 1, 1997, and
each successive payment due and payable the first day of each
calendar month during the term of this lease.
3. LATE AND SERVICE CHARGES: A late charge of ten
percent (10%) of the amount of rent due for the monthly rental
period shall be assessed for any payment not made within ten (10)
days after the date it is due and a service charge of Twenty-Five
Dollars ($ 25.00) will automatically be made for each instance in
which a check is returned unpaid by the Lessee's bank for any
reason whatsoever. If Lessee pays by personal check and more than
one check is returned for insufficient funds or for any other
reason, Lessor has the right to demand cash, a certified check,
cashier's check or money order in payment of full future rents.
4. SECURITY DEPOSIT: Lessee has this date deposited with
Lessor the additional sum of Two Thousand Dollars ($ 2,000.00)
receipt of which is hereby acknowledged by Lessor as security for
the full and faithful performance by Lessee of the aforementioned
terms, conditions and covenants of this lease on Lessee's part to
be performed and kept and for the cost of, inter alia, any trash
removal, house c leaning and repair or correction of damage in
excess of normal wear and tear.
This security deposit or any balance thereof shall be returned
without interest after the Lessee has vacated and left the premises
in an acceptable condition and surrendered all keys and if the
Lessee shall have made all payments due hereunder and performed all
such covenants and agreements contained herein. If Lessor
determines that any loss, damage or injury chargeable to the Lessee
hereunder exceeds the security deposit, the Lessor, at his option,
may retain the said sum as li.quidated damages or may apply the sum
against actual loss, damage or injury and the balance thereof will
be the responsibil i ty of Lessee. It is further understood and
agreed that the said security deposit is not to be considered as
the last payment under this Lease, but that should the Lessee be in
default in the payment of any rent herein reserved or any portion
thereof, Lessor may at Lessor's option appropriate and apply any
portion of the security deposit as may be necessary to the payment
of the overdue rent or other sums expressly constituting rent
hereunder.
2
5. ACCEPTANCE and DBLIVBRYI Lessee acknowledges that he
has examined the leased premises and his acceptance of this
agreement is conclusive evidence that said premises are in good and
satisfactory order and repair unless otherwise specJ.fied herein;
and the Lessee agrees that no representations as to the condition
of the premises have been made and that no agreement has been made
to redecorate, repair or improve the premises unless hereinafter
set forth specifically in writing. The Lessor will deliver the
leased premises and all common areas in a clean, safe and sanitary
condition, free of rodents and vermin and in complete compliance
with all applicable laws.
6. SPECIAL PROVISIONS:
conducted on the premises except
of an auto repair facility.
No salvage operationb are to be
those incidental to the operation
7. LESSEE'S DUTIES:
will, without demand:
a. RENT: Pay the rent and all other charges herein
reserved as rent, on the days and times that the same are made
payable, without fail, and if Lessor shall at any time or times
accept said rent or rent charges, or other required payments, after
the same shall become due and payable, such acceptance shall not
excuse delay upon subsequent occasions, or constitute or be
construed as a waiver of any of Lessor's rights, including Lessor's
r.ight of distraint and other process.
Lessee covenants and agrees that he
b. GOOD ORDER and REPAIR: Keep the demised premises
in good repair during the term of this lease, reasonable wear and
tear and damage by accidental fire or other casualty not occurring
through negligence of Lessee or those employed by or acting for
Lessee alone excepted. The Lessee agrees to surrender the demised
premises in the same condition in which he has herein agreed to
keep the same during continuance of this lease.
c. SIDEWALKS and TRASH: Keep the demised premises,
including the sidewalk in a clean and orderly condition at all
times. In addition, Lessee shall be responsible for garbage or
trash removal, and for removal of snow and ice in accordance with
Borough and/or other applicable ordinances.
d. UTILITIES:
same become due and payable:
payment of all utilities on the
t.o electric, oil and water and
Pay the following utilities as the
The Lessee is responsible for the
premises, including but not limited
sewer.
3
e. GOOD ORDER and REPAIRI Lessee further agrees that
Lessee is responsible for all repairs of any type whatsoever to the
property, including mechanical malfunctions, changes or any other
conditioll which is of major consequence, and Lessor is relieved
from any obligation to perform any repairs on said property
whatsoever.
f. ORDINANCES and REGULATIONS: Comply wi th any
requirements of any of the constituted public authorities, and with
the terms of any statute of the Commonwealth of Pennsylvania or the
federal government or local ordinance or regulation applicable to
Lessee or the use of the demised premises and save Lessor harmless
from penalties, fines, costs or damagea resulting from failure to
do so. Lessee shall be responsible for obtaining from the proper
municipal, county, state and othel' authoritles such permits as may
be required for the operation and maintenance of an auto repair and
restoration facility, inciuding all cost.s associated therewith,
including any zoning variances required. Lessee agrees to correct
any and all deficiencies found as a result of any inspections
performed by any of the constituted public authorities aforesaid
and agrees to pay the costs thereof.
g. TAXES: Pay any and all taxes due as a result of
the operation of said business. Lessee promptly will pay all local
property taxes upon presentation of said tax bill and will provide
proof of such payment to Lessor without demand.
h. CONDUCT OF BUS~NESS: That it will not carry on
any unlawful or immoral business in or about the demised premises,
and will not carryon any business which will endanger the
buildings from fire or cause a forfeiture of any fire insurance
that the Lessor has or hereafter may have on the buildings.
1. INSURANCE: Carry public liability insurance and
fire, extended coverage, vandalism and malicious mischief coverage
on the demised premises, for the mutual benefit of Lessor and
Lessee, such insurance to afford protection to the limit of
$ 300,000 in respect to the injury or death of a single person, and
$ 500,000 in respect to anyone accident, and to the limit of
$ 20,000 in respect to property damage. Lessee covenants and
agrees to pay the premium charged for such insurance coverage, and
Lessee shall furnish certificates of such insurance policy or
policies upon each purchase of such lnsurance, stating therein the
number of each policy, the name of the insurer, the amount of
insurance under each such policy, and the date of expiration of
each such policy, and shall from time to time, whenever required,
satisfy Lessor that such policy or policies is or are in full force
and effect. Such insurance shall be procured from a reasonable
insurance company or companies, reasonably satisfactory to Lessor,
and authorized to do business in the Commonwealth of Pennsylvania.
4
In case Lessee shall at any time fail, neglect or refuse to obtain
the insurance required by this insurance paragraph, and to keep the
same in force as provided therein, the Lessor may, at his option,
procure or renew such insurance, but such election by the Lessor
shall be at Lessee's expense and chargeable to the Lessee as
additional rent.
j. PLATE GLASS INSURANCE: Carry in d standard company
full coverage insurance on all plate glass in said premises and
cause same to be replaced if chipped, cracked or broken, said
insurance policy or certificate from Lessee's insurance company to
be deposited with Lessor and any such policy to provide that it
shall not be cancelled for any reason unless and until Lessor shall
be given fifteen (15) days' notice in writing by the insurance
company.
8. CONSENT: Lessee covenants and agrees that he will
do none of the following things without the consent, in writing, of
Lessor first had and obtained:
a. AFFECT LESSOR'S INSURANCE: Do or suffer to be
done any act, matter or thing objectionable to the fire insurance
companies, whereby the fire insurance or any other insurance now in
force or hereafter to be placed on the demised premises, or any
part thereof, or on the buildings of which the demised premises may
be a part, shall become void or suspended, or whereby the same
shall be rated as a more hazardolls risk than as at the date of the
execution of this lease, or employ any person or persons
objectionable to the fire insurance companies, or carry or have any
explosive matter of any kind in and about the demised premises, and
should any act or neglect of the Lessee or the nature of Lessee's
business cause an increase or increases in fire insurance premiums
upon the demised premises and/or the buildings of which the demised
premises are a part due to an increase in the rate of fire
insurance in excess of the rate on the demised premises at the time
of the making of this lease, Lessee agrees to pay to Lessor as
additional rent said increase or increases.
b. ASSIGNMENT: Except as otherwise specifically set
forth herein, assign this lease nor sublet the premises or any part
of the premises covered by this Lp.ase without the prior written
consent of Lessor.
c. RENOVATIONS: Make any renovations or structural
changes, additions or improvements to the leased premises without
having first obtained Lessor's written consent, which consent shall
not be unreasonably withheld. Such changes, additions or
improvements shall be made at Lessee's expense, and shall become
property of the Lessor upon termination of this lease.
5
9. INSPECTION I Lessee covenants and agrees that Lessor
shall have the right at all reasonable times by himself or his duly
authorized agents to go upon and inspect the demised premiseu and
every part th6reof. This provision shall authorize the Lessor to
post a "For Rent" sign and to show said premises at reasonable
hours to prospective tenants during the last ninety (90) days of
the term herein. This provision shall also authorize the Lessor to
post a for sale sign at any time during the term of this lease or
any renewal thereof and to show said premises at reasonable hours
to prospective purchasers.
10. PERSONAL PROPERTY: Lessor shall not be responsible for
damage from any cause to personal property of Lessee in the leased
premises, and Lessee shall be required to carry his own insurance
on such personal property.
11. INDEMNIFICATION: Lessee will indemnify the Lessor from
all claims, demands and damages for injuries to person or property
arising from or in any manner connected with the occupancy or use
of the leased premises by Lessee, and from any and all other
claims, demands, liens, damage3, fines or penalties of whatever
name, nature or kind, in any way or manner chargeable to or payable
for, or in respect to the use, occupancy or ownership of the leased
premises, or from any act or omission of the Lessee, his servants,
agents, representatives, tenants, guests, invitees, licensees,
customers, or any other person, firm or corporation in or about or
adjacent to the leased premises, except insofar as the negligence
of the Lessor is the proximate cause of such claims, demands,
liens, damages, fines or penalties. Lessee will pay all costs,
expenses and attorney's fees incurred by or imposed on the Lessor
in prosecution or defense of any suit, action or proceeding
predicated upon an alleged breach of any undertaking by the Lessee
under the terms of this Lease, or for or which the Lessee has
covenanted to indemnify the Lessor under the terms of this Lease,
or would be bound by law to indemnify the Lessor.
Lessee shall bear, pay and discharge, when and as the same
become due and payable, all judgments and lawful claims for damages
or otherwise against Lessor or his property arising from injury or
damage to the person or property of Lessee, or of any clerk, agent,
employee, servant, invitee, customer, licensee or visitor upon the
demised premises, or the sidewalks 011 or adjacent to said property,
including injury and damage caused by the operation of Lessee's
business or by fixtures, machinery, apparatus or appliances in or
upon the demised premises; and will assume the burden and expense
of this lease, and will protect, indemnify and save harmless
Lessor, his agents, servants, employees, and the public at large,
by reason of or on account of the use or misuse of the premises
hereby leased, or any sJ.dewalk on or adjacent to the said premises
or any part thereof.
6
12. ADDITIONAL RENTI In the event of the failure of Lessee
to promptly perform any of the covenants and conditions of this
Lease, Lessor may go upon the demised premises and perform such
covenants, the costs thereof, at the sole option of Lessor, to be
charged to Lessee as additional and delinquent rent.
13. LESSOR'S OBLIGATIONSI
he willI
Lessor covenants and agrees that
4.
notification
Lessee.
REAL ESTATE TAXBSI Provide to Lessee any
of real estate tax due on the property for payment by
b. INSURANCE I At his own cost and expense, carry
fire and extended coverage insurance on the leased premises. All
proceeds from insurance for damage or destruction done to the
building will be paid to Lessor, and Lessee will have no claim for
said proceede. Lessor is not required, however, to carry or
maintain insurance on any of the personal property of Lessee, his
successors or assigns.
14.
premises
thenl
PIREI In the event of the destruction of the demised
by fire, water damage, governmental action or acts of God,
a. In the event that the demised premises are totally
destroyed or so damaged by fire or other casualty not occurring
through fault or negligence of the Lessee or those employed by or
acting for him, that the same cannot be repaired or restored within
a reasonable time, this lease shall absolutely cease and determine,
and the rent shall abate for the balance of the term.
b. If the damage caused as above be only partial and
such that the premises can be restored to the then condition within
a reasonable time, the Lessor may, at his option, restore the same
with reasonable promptness, reserving the right to enter upon the
demised premises for that purpose. The Lessor also reserves the
right to enter upon the demised premises for that purpose. The
Lessor also reserves the right to enter upon the demised premises
whenever necessary to repair damage caused by fire or other
casualty to the buildings of which the demised premises are a part,
even though the e(fect of such entry be to render the demised
premises or a part thereof untenantable. In either event, the rent
shall be apportioned and suspended during the time the Lessor is in
possession, taking into account the proportion of the demised
premises rendered untenantable and the duration of the Lessor's
possession. If a dispute arises as to the amount of rent due under
this clause, Lessee agrees to pay the full amount claimed by
Lessor. Lessee shall, however, have the right to proceed by law to
recover the excess payment, if any.
7
c. Lessor shall mllke such election to repair the
premises or terminate this lease by giving notice thereof to Lessee
at the leased premises within thirty (30) days from the day Lessor
received notice that the demised premises had been destroyed or
damaged by fire or other casualty.
d. Lessor shall not be liable for any damage,
compensation or claim by reason of inconvenience or annoyance
arising from the necessity of repairing any portion of the
building, the interruption in the use of the premises, or the
termination of this lease by rellson of destruction of the premiseo.
e. The Lessor has let the demised premises in its
Pl'esent condition and without any representations on the part of
the Lessor. It is understood and agreed that Lessor is under no
duty to make repairs or alterations lit the time of letting or at
any time thereafter, except as ,)therwise provided for in this
agreement.
15. DEPAULT. if the Lesseel
A. Does not pay in full within ten (10) days from the
date it is due any and all installments of rent, and/or does not
pay in full when due other charges or payments herein reserved,
included or agreed to be treated or collected as rent, and/or any
other charge, expense or cost herein Agreed to be paid by the
Lessee, or
b. Vacates the demised premises, or removes or attempts
to remove, or manifests as intention to remove any goods or
property therefrom otherwise than in the ordinary and usual course
of business, without having first paid and satisfied the Lessor in
full for all rent and other charges then due or that may thereafter
become due until the expiration of the term above mentioned, or
c. Fails to observe or perform any of the other terms,
covenants or conditions of this lease on the part of Lessee to be
observed and performed, which failure persists after the expiration
of twenty (20) days from the date Lessor gives notice to Lessee
calling attention to the existence of such failure, provided
however that if the matter which is the subject of the notice is of
such a nature that the same cannot reasonably be corrected within
twenty (20) days, then no default shall be deemed to have occurred
if Lessee, before the expiration of the twenty-day period from the
date of giving of the aforesaid notice by Lessor, commences the
curing of the default and diligently prosecutes the same to
completion, or
B
d. Becomes insolvent or makes an assignment for the
benefit of creditors, or if a petition in bankruptcy is filed by or
against the I.essee, or a bill in equity or other proceeding for the
appointmont of a receiver for the Lessee is filed, or if
proceedings for reorganization or for composition with creditors
under any state or federal law be instituted by o~ against Lessee,
or if the real or personal property of the Lessee shall be sold or
levied upon by any Sheriff,
Then and in any or either of said events, there shall be deemed to
be a breach of this lease, and thereupon and without entry or other
action by Lessor:
1. The rent for the entire unexpired balance of
the term of this lease, as well as all other charges, payments,
costs and expenses herein agreed to be paid by the Lessee,
including but not limited to legal expenses and attorney's fees,
including those i.ncident to the recovery of possession, brokerage
and/or putting the demised premises in good order or for preparing
the same for re-rental, or at the opt ion of Lessor any part
thereof, and all costs, shall, in addition to any and all
installments of rent already due and payable and in arrears, and/or
any other charge or payment herein reserved, included or agreed to
be treated or collected as rent, and/or any other charge, expense
or cost herein agreed to be paid by the Lessee which may be due and
payable and in arrears, be taken to be due and payable and in
arrears as if by the terms and provisions of this lease, the whole
unpaid balance of unpaid rent and other charges, payments, taxes,
costs and expenses were on that date payable in advance; and if the
lease or any part thereof is assigned, or if the premises or any
part thereof is sublet, Lessee hereby irrevocably constitutes and
appoints Lessor as Lessee's agent to collect the rents due by such
assignee or sublessee, and apply the same to the rent due
hereunder, without in any way affecting Lessee's obligation to pay
any unpaid balance of rent due hereunder, or in the event of any of
the foregoing at any time at tho option of Lessor;
2. This lease and the terms hereby created shall
determine and become absolutely void without any right on the part
of the Lessee to save the forfeiture by payment of any sum due or
by other performance of any conditioll, term or covenant broken;
whereupon Lessor shall be entitled to recover damages for such
breach in an amount equal to the amount of rent reserved for the
balance of the term of this lease and other charges, payments,
costs and expenses referred to in subparagraph 1 hereof.
9
16. REMEDIES:
forth in paragraph
behalf, at Lessor's
In
15, the
option I
the event of any default as above set
Lessor, or anyone acting on Lessor / s
a. May without notice or demand enter the demised
premises for the purpose of distraining or levying on any goods or
chattels therein.
b. May lease said premises or any part or parts thereof
to such person or persons as may, in Lessor's discretion, seem
best, and the Lessee shall be liable for any loss of rent for the
balance of the then current term.
c. If relit and/or any charges hereby reserved as rent
shall remain unpaid on any day when the same ought to be paid,
Lessee hereby empowers any Prothonotary or attorney of any court of
record to appear for Lessee in any and all actions which may be
brought for rent and/or the charges, payments, costs and expenses
reserved as rent, or agreed to be paid by the Lessee, and/or to
sign for Lessee an agreement for entering in any competent court an
amicable action or actions for the recovery of rent or other
charges or expense, and in said suit or in said amicable action or
actions, to confess judgment against Lessee for all or any part of
the rent specified in this lease and thon unpaid, including, at
Lessor's option, the rent for the entire unexpired balance of the
term of thi'l lease, and/or other charges, payments, costs and
expenses reserved as rent or agreed to be paid by the Lessee, and
for interest and costs together with attorney's commission of ten
percent (10%). Such authority shall not be exhausted by one
exercise thereof, but judgment may be confessed as aforesaid from
time to time as often as any of said rent and/or other charges
reserved as rent shall fall due or be in arrears, and such powers
may be exercised as well after the expirat.ion of the original term
and/or during any extension or renewal of this lease.
d. When this lease shall be determined by a condition
broken, either during the original term of this lease or any
renewal or extension thereof, and also when and as soon as the term
hereby created or any extension thereof shall have explred, it
shall be lawful for any attorney, as attorney for Lessee, to file
an agreement for entering in any competent court an amicable action
in judgment and ejectment against Lessee, and all persons claimlng
under Lessee for the recovery by Lessor of possession of the herein
demised premises, for which this lease shall be his suff icient
warrant, whereupon, if Lessor so desires, a Writ of Possession may
issue forthwith, without any prior proceedings whatsoever, and
provided that if, for any reason, after sllch 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
10
shall have the right upon any subsequent default or defaults, or
upon the termination of this lease as hereinbefore set forth, to
bring one or more amicable action or actions, as hereinbefore set
forth, to recover possession of the said premises.
17. CUMULA'rIVE EFFECT: All the remedies hereinbefore given
to Lessor and all rights and remedies given to him by law and
equity shall be cumulative and concurrent. No dete:rmination of
this lease or the taking or recovery of the premises shall deprive
Lessor of any of his remedies or actions against the Lessee for
rent due at the time, or which, under the terms hereof, would in
the future become due, as if there has been no determination, or
for sums due at the time of which, under the terms hereof, would in
the future become due as if there has been no determination, nor
shall the bringing of any action for rent or breach of covenants,
or the resort to any other remedy herein provided for the recovery
of rent, be construed as a waiver of the right to obtain possession
of the premises. Similarly, no exercise of any of Lessor's right
given to him by law and equity, or exercisable in accordance with
the terms and provisions of this lease agreement, shall deprive
Lessor of any of his remedies or actions against the Lessee under
the terms of the Agreement of Sale referred to hereinabove.
18. SUBORDINATION: This lease is subject and subordinate
to the lien of all mortgages now or at any time hereinafter placed
upon any part of Lessor' 8 property, to extensions or renewals
thereof, and to all advances now or hereafter made on the security
thereof. Lessee agrees, on request, to execute such further
instruments evidencing such subordination as Lessor may request,
and if Lessee fails to do so, Lossor is empowered to do so in the
name of Lessee.
19. MECHANICS' LIENS: The Lessee shall have no right to
encumber or subject the interest of the Lessor in the demised
premises to any mechanics, materialmens or other lienEl of any
nature whatsoever, and upon the filing of any such lien, the
failure of the Lessee to have the same removed from record promptly
shall constitute a violation of this agreement and entitle Lessor
at this option to taken any legal action elsewhere in this
agreement reserved to said Lessor.
20. FIRE EXTINGUISHERS: Lessee agrees to supply and
maintain at his own expense any fire extinguishers or other fire
prevention equipment required by law, rules, orders, ordinances and
regulations of any city, county or state in which the demised
premises are located, and/or required by any underwriters
association, bureau or any other similar body having jurisdiction
involving said premises.
11
21. SIGNS! Lessee will place no signs, awnings or curtains
on any part of the exterior of said premises or on any show window,
nor paint any brick or stone work, cornice work, mill work or iron
work on the front of said premises without the written consent of
Lessor or its agent first had and obtained. Such consent shall not
be unreasonably withheld.
22. QUIET POSSESSION: It is further understood and agreed,
that subject to the terms of this lease, Lessee, paying the rent
hereby reserved, and performing and observing the several covenants
hereof, may peacefully hold and enjoy the said premises throughout
the duration of this lease w~thout any interruptions by the Lessor.,
his heirs or assigns or any person lawfully claiming through him.
23. LESSOR NOT A PARTNER: It is expressly understood that
the Lessor shall not be construed or held to be a partner or
associate of the Lessee in the conduct of his business; it being
expressly understood that the relationship between the parties
hereto is and shall remain at all times that of Lessor and Lessee.
24. APPLICATION OF PAYMENTS RECEIVED FROM LESSEE: I.es60r
shall have the right to apply any payments made by Lessee to the
satisfaction of any debt or obligation of Lessee to Lessor
according to Lessor's sole discretion and regardless of the
instructions of Lessee as to the application of any such sum,
whether such instructions be endorsed upon Lessee's check or
otherwise, unless otherwise agreed upon by both parties in writing.
The acceptance by Lessor of a check or checks drawn by others than
Lessee shall in no wise affect Lessee's liability hereunder nor
shall it be deemed an approval of any assignment of this lease by
Lessee.
25. HOLDOVER: Should Lessee continue in possession after
the end of the term herein without renewal as provided for in
Paragraph 3 hereof, but with the permission of Lessor, it is agreed
that the tenancy thus created can be terminated by either party
giving to the other party not less than thirty (30) days' written
notice to expire on the day of the month from which the tenancy
commenced to run. In so continuing, r.essee agrees to pay the
monthly rental provided for herein and to keep and fulfill all
other covenants, conditions and agreements.
12
26. LESSOR'S BNTRY AT BND or r.RUiBI If during the last
month of the term of this lease or any renewal or extension of the
said term Lessee shall have removed all or substantially all of the
Lessee's property from the premises, Lessor may, prior to the
expiration or ternlination of the term of the lease without
releasing Lessee from any obligations to repair or restore the
demised premises or to pay the rent in full, and without any
elimination or abatement thereof, immediately enter upon and alter
renovate dnd redecorate the premises.
~7. NOTICEr All notices which are required or are permitted
to be given hereunder shall be in writing and shall be deemed to
have been duly given if personally delivered or sent by United
States certified mail, prepaid:
(a) If to Lessor, addressed tal
Robert C. Fitting, Jr.
4530 Coventry Road
Harrisburg, PA 17109
(b) If to Lessee, addressed to:
Rodney Lee Failor
R.D. * 5
Carlisle, PA 17013
Such addresses may be changed at any time and from time to time by
like written notice given by either party to the other.
28. OTHER PROVISIONS: The paragraph titles appeoaring in
this lease are for purposes of each reference and shall not be
considered a part of this lease or in any way to modify, amend, or
affect the provisions thereof.
29. BINDING EPFECTr All rights and liabilities herein
given to or imposed upon the respective parties hereto shall extend
to and bind the several and respective heirs, executors,
administrators, successors and assigns of said parties. No rights,
however, shall inure to the benefit of any assignee of Lessee
unless the assignment of such assignee has been approved by Lessor
in writing as aforesaid.
",'
13
I I
,I'
F ii"
,
"
Ii
I"
i!1
I
"
,
"
'I
I
I
"
TO.,."....."..,....'......"..~.','...'..,..,....".,"'I'".....,.,'"....,......
YOU AlII Hl/lDV NOTlflll) TO NAIl TO THIl IN.
CLOIlIlD WITHIN 'IWIlNTY (Ill) ilAVIl Of =" CIl
IIIIlIlOI' OR DIlI'AAT JUI)llIMIHI WoV.
~VOU, ' '
~:.td T., IOu.,
A"O/lNa" AT LAW
. ,,'I.\XIU.,. .TRallT. alJlTII -
HAllAII.VAlI. 'aNN.Y~\lANIA t7lql'
1717) ....Hllt
wi DO ....., c.Rm iW\T THI, WITHIN 18 A ~
NIO Cl)l\lWCT 00f't Of THI CJMIIW. f1LID If TIll
AOT1ON: ' ,
';.t',~"I',II>.....'..I.......~...."..........................."....,.......,..........
ATTOI\HIY
..,
1V....................................,...""....."............."'"i".........
, ATTORNI'I
..
.
.
:...X,!:
~.~~-:<:._-.,..
F~::':"':"'-:;;"'''
G~'~
v
AGRBBMBNT OF COMMERCIAL LEASH
THIS AGREEMENT, made this ~ '7 day of :J;"t!!- , 1997, by
and between ROBBRT C. FITTING, JR., of 4530 Coventry Road,
Harrisburg, Dauphin County, Pennsylvania 17109, hereinafter called
Lessor,
,(er and Ii r
.JY ;>>Ylt." ST. ~r.lh/,,~"';
RODNBY I.EE FAILOR, of R.D. >> 5. C;ulillle, Cumberland County,
Pennsylvania ~791J, hereinafter called Lessee.
/,)()(. ,-
PREMISES and USE: WITNESSETH: That Lessor, in consideration of
the rents hereinafter covenanted to be paid by the Lessee, and in
consideration of the covenants hereinafter stipulated to be
performed by the Lessee and in consideration of the mutual
covenants and agreements hereinafter mentioned, does hereby demise,
let and lease unto the Lessee, for the purpose of operating an auto
repair facility on Mill Street in Mt. Holly Springs, Pennsylvania,
described as follows:
BEGINNING at a point in the center line of the public road
leading from Boiling Springs to Mount Holly Springs (Route No.
21009) at line of land of Robert C. Fitting and Sidney Roth;
thence by said centerline, North 70 degrees 45 minutes East,
366.64 feet, more or less, to the line of land now or formerly
of A.S. Otto; thence by the same, South 17 degrees 45 minutes
West, 198 feet, more or less, to the westerly right-of-way of
the Gettysburg and Harrisburg Railway Company; thence along
said right-of-way line, South 26 degrees 30 minutes West 520
feet, more or less, to the line of land of Fitting and Roth
aforesaid; thence by the latter land, North 03 degrees 59
minutes East 533.16 feet, more or less, to the place of
BEGINNING.
THE ABOVE described tract of land has thereon erected a two-
story frame dwelling house and a three-bay garage building and
a shed, and other improvements, all of which are known and
numbered 228 Mill Street, Mt. Holly Springs, Pennsylvania
17065.
1. TERM: Said premises are leased for a term of three
(3) years beginning the firRt day of April 1997, and ending the
thirtieth day of April 2000, upon the covenants and conditions
hereinafter set forth.
2. RENT! The Lessee shall pay to the Lessor as rent for
the leased premises during the term of t~~ the total sum of
Thirty-Seven Thousand Eight Hundred ($ 3~,.00.~O) Dollars, payment
in monthly installments of onS!usand Dollars ($~OOO~Qn) for
the first year; One Thousand llars ($ 1,0110. OQj "tor the
second year; and One Thousand d Dollars ($ 1,<fIto.OO) for
the third year; with the first payment due on April 1, 1997, and
each successive payment due and payable the first day of each
calendar month during the term of this lease.
3. LATE AND SERVICE CHARGESI A late charge of ten
percent (10%) of the amount of rent due for the monthly rental
period shall be assessed for any payment not made within ten (10)
days after the date it is due and a service charge of Twenty-Five
Dollars ($ 25.00) will automatically be made for each instance in
which a check is returned unpaid by the Lessee's bank for any
reason whatsoever. If Lessee pays by personal check and more than
one check is returned for insufficient funds or for any other
reason, Lessor has the right to demand cash, a certified check,
cashier's check or money order in payment of full future rents.
4. SECURITY DEPOSIT I Lessee has this date deposited with
I.essor the additional sum of Two Thousand Dollars ($ 2,000.00)
receipt of which is hereby acknowledged by Lessor as security for
the full and faithful performance by Lessee of the aforementioned
terms, conditions and covenants of this lease on Lessee's part to
be performed and kept and for the cost of, inter alia, any trash
removal, house cleaning and repair or correction of damage in
excess of normal wear and tear.
This security deposit or any balance thereof shall be returned
without interest after the Lessee has vacated and left the premises
in an acceptable condition and surrendered all keys and if the
Lessee shall have made all payments due hereunder and performed all
such covenants and agreements contained herein. If Lessor
determines that any loss, damage or injury chargeable to the Lessee
hereunder exceeds the security deposit, the Lessor, at his option,
may retain the said sum as liquidated damages or may apply the sum
against actual loss, damage or injury and the balance thereof will
be the responsibility of Lessee. It is further understood and
agreed that the said security deposit is not to be considered aa
the last payment under this Lease, but that should the Lessee be in
default in the payment of any rent herein reserved or any portion
thereof, Lessor may at Lessor's option appropriate and apply any
portion of the security deposit as may be necessary to the payment
of the overdue rent or other sums expressly constituting rent
hereunder.
2
5. ACCBPTANCE and DBLIVERY: Lessee acknowledges that he
hall examined the leased premises and his acceptance of this
agreement is conclusive evidence that said premises are in good and
satisfactory order and repair unless otherwise specified herein;
and the Lessee agrees that no representations as to the condition
of the premises have been made and that no agreement has been made
to redecorate, repair or improve the premises unless hereinafter
set forth specifically in writing. The Lessor will deliver the
leased premises and all common areas in a clean, safe and sanitary
condition, free of rodents and vermin and in complete compliance
with all applicable laws.
6. SPECIAL PROVISIONS:
conducted on the premises except
of an auto repair facility.
No salvage operations are to be
those incidental to the operation
7. LESSEE'S DUTIES:
will, without demand:
a. RENT: Pay the rent and all other charges herein
reserved as rent, on the days ar.d times that the same are made
payable, without fail, and if Lessor shall at any time or times
accept said rent or rent charges, or other required payments, after
the same shall become due and payable, such acceptance shall not
excuse delay ~pon subsequent occasions, or constitute or be
construed as a waiver of any of Lessor's rights, including Lessor's
right of distraint and other process.
Lessee covenants and agrees that he
b. ~~D ORDER and REPAIR: Keep the demised premises
in good repair during the term of this lease, reasonable wear and
tear and damage by accidental fire or other casualty not occurring
through negligence of Lessee or those employed by or acting for
Lessee alone excepted. The Lessee agrees to surrender the demised
premises in the same condition in which he has herein agreed to
keep tho same during continuance of this lease.
c. SIDEWALKS and TRASH: Keep the demised premises,
including the sidewalk in a clean and orderly condition at all
times. In addition, Lessee shall be responsible for garbage or
trash removal, and for removal of snow and ice in accordance with
Borough and/or other applicable ordinances.
d. UTILITIES: Pay the following utilities as the
same become due and payable: The Lessee is responsible for the
payment of all utilities on the premises, including but not limited
to electric, oil and water and sewer.
3
e. GOOD ORDER and REPAIRI Lessee further agrees that
Lessee is responsible for all repairs of any type whatsoever to the
property, including mechanical malfunctions, changes or any other
condition which is of major consequence, and Lessor is relieved
from any obligation to perform any repairs on said property
whatsoever.
f. ORDINANCES and REGULATIONS: Comply with any
requirements of any of the constituted public authorities, and with
the te~~IS of any statute of the Commonwealth of pennsylvania or the
federal government or local ordinance or regulation appllcable to
Lessee or the use of the demised premises and save Lessor harmless
from penalties, fines, costs or damages resulting from failure to
do so. Lessee shall be responsible for obtaining from the proper
municipal, county, state and other authorities such permits as may
be required for the operation and maintenance of an auto repair and
r.estoration facility, including all costs associated therewith,
including any zoning variances required. Lessee agrees to correct
any and all deficiencies found as a result of any inspections
performed by any of the consti tuted public authorities aforesaid
and agrees to pay the costs thereof.
g. TAXES: Pay any and all taxes due as a result of
the operation of said business. Lessee promptly will pay all local
property taxes upon presentation of said tax bill and will provide
proof of such payment to Lessor without demand.
h. CONDUCT OF BUSINESS: That it will not carry on
any unlawful or immoral business in or about the demised premises,
and will not carryon any business which will endanger the
buildings from fire or cause a forfeiture of any fire insurance
that the Lessor has o~ hereafter may have on the buildings.
i. INSURANCE: Carry public liability insurance and
fire, extended coverage, vandalism and malicious mischief coverage
on the demised premises, for the mutual benefit of Lessor and
Lessee, such insurance to afford protection to the limit of
$ 300,000 in respect to the injury or death of a single person, and
$ 500,000 in respect to anyone accident, and to the limit of
$ 20,000 in respect to property damage. Lessee covenants and
agrees to pay the premium charged for such insurance coverage, and
Lessee shall furnish certificates of such insurance policy or
policies upon each purchase of such insurance, stating therein the
number of each policy, the name of the insurer, the amount of
insurance under each such policy, and the date of expiration of
each such policy, and shall from time to time, whenever required,
satisfy Lessor that such policy or policies is or are in full force
and effect. Such insurance shall be procured from a reasonable
insurance company or companies, reasonably satisfactory to Lessor,
and authorized to do business in the Commonwealth of Pennsylvania.
4
In case Lessee shall at any time fail, neglect or refuse to obtain
the insurance required by this insurance paragraph, and to keep the
same in force as provided therein, the Lessor may, at his option,
procure or renew such insurance, but such election by the Lessor
shall be at Lessee's expense and chargeable to the Lessee as
additional rent.
j. PLATB roT.ASS INSURANCB: Carry in a standard company
full coverage insurance on all plate glass in said premises and
cause same to be replaced if chipped, cracked or broken, said
insurance policy or certificate from Lessee's insurance company to
be deposited with Lessor and any such policy to provide that it
shall not be cancelled for any reason unless and until Lessor shall
be given fifteen (15) days' not.ice in writing by the insurance
company.
8. CONSENT: Lessee covenants and agrees that he will
do none of the following things without the consent, in writing, of
Lessor first had and obtainedl
a. AFFECT LESSOR'S INSURANCE: Do or suffer to be
done any act, matter or thing objectionable to the fire insurance
companies, whereby the fire insurance or any other insurance now in
force or hereafter to be placed on the demi3ed premises, or any
part thereof, or on the buildings of which the demised premises may
be a part, shall become void or suspended, or whereby the same
shall be rated as a more hazardous risk than as at the date of the
execution of this lease, or employ any person or persons
objectionable to the fire insurance companies, or carry or have any
explosive matter of any kind in and about the demised premises, and
should any act or neglect of the Lessee or the nature of Lessee's
business cause an increase or increases in fire insurance premiums
upon the demised premises and/or the buildings of which the demised
premises are a part due to an increase in the rate of fire
insurance in excess of the rate on the demised premises at the time
of the making of this lease, Lessee agrees to pay to Lessor as
additional rent said increase or increases.
b. ASSIGNMENT: Except as otherwise specifically set
forth herein, assign this lease nor sublet the premises or any part
of the premises covered by this Lease without the prior written
consent of Lessor.
c. RENOVATIONS: Make any renovations or structural
changes, additions or improvements to the leased premises without
having first obtained Lessor's written consent, which consent shall
not be unreasonably withheld. Such changes, additions or
improvements shall be made at I.essee's expense, and shall become
property of the Lessor upon termination of this lease.
5
9. INSPECTION I Lessee covenants and agrees that Lessor
shall have the right at all reasonable times by himself or his duly
authorized agents to go upon and inspect the demised premises and
every part thereof. This provision shall authorize the Lessor to
post a "For Rent" sign and to show said premises at reasonable
hours to prospective tenants during the last ninety (90) days of
the term herein. This provision shall also authorize the Lessor to
post a for sale sign at any time during the term of this lease or
any renewal thereof and to show said premises at reasonable hours
to prospective purchasers.
10. PERSONAL PROPERTY: Lessor shall not be responsible for
damage from any cause to personal property of Lessee in the leased
premises, and Lessee shall be required to carry his own insurance
on such personal property.
11. INDEMNIFICATION: Lessee will indemn.ify the Lessor from
all claims, demands and damages for injuries to person or property
arising from or in any manner connected with the occupancy or use
of the leased premises by Lessee, and from any and all other
claims, demands, liens, damages, fines or penalties of whatever
name, nature or kind, in any way or manner chargeable to or payable
for, or in respect to the use, occupancy or ownership of the leased
premises, or from any act or omission of the Lessee, his servants,
agents, representatives, tenants, guests, invitees, licensees,
customers, or any other person, firm or corporation in or about or
adjacent to the leased premises, except insofar as the negligence
of the Lessor is the proximate cause of such claims, demands,
liens, damages, fines or penalties. Lessee will pay all costs,
expenses and attorney's fees incurred by or imposed on the Lessor
in prosecution or defense of any suit, action or proceeding
predicated upon an alleged breach of any undertaking by the Lessee
under the terms of this Lease, or for or which the Lessee has
covenanted to indemnify the Lessor under the terms of this Lease,
or would be bound by law to indemnify the Lessor.
Lessee shall bear, pay and discharge, when and as the same
become due and payable, all judgments and lawful claims for damages
or otherwise against Lessor or his property arising from injury or
damage to the person or property of Lessee, or of any clerk, agent,
employee, servant, invitee, customer, licensee or visitor upon the
demised premises, or the sidewalks on or adjacent to said property,
including injury and damage caused by the operation of Lessee's
business or by fixtures, machinery, apparatus or appliances in or
upon the demised premises; and will assume the burden and expense
of this lease, and will protect, .indemnify and save harmless
Lessor, his agents, servants, employees, and the public at large,
by reason of or on account of the use or misuse of the premises
hereby leased, or any sidewalk on or adjacent to the said premises
or any part thereof.
6
12. ADDITIONAL RBNT' In the event of the failure of Lessee
to promptly perform any of the covenants and conditions of this
Lease, Lessor may go upon the demised premises and perform such
covenants, the costs thereof, at the sole option of Lessor, to be
charged to Lessee as additional and delinquent rent.
13. LBSSOR'S OBLIGATIONS,
he willi
Lessor covenants and agrees that
a.
notification
Lessee.
REAL BSTATB TAXES, Provide to Lessee any
of real estate tax due on the property for payment by
b. INSURANCE, At his own cost and expense, carry
fire and extended coverage insurance on the leased premises. All
proceeds from insurance for damage or destruction done to the
building will be paid to Lessor, and Lessee will have no claim for
said proceeds. Lessor is not required, however, to carry or
maintain insurance on any of the personal property of Lessee, his
successors or assigns.
14.
premises
thenl
FIRE' In the event of the destruction of the demised
by fire, water damage, governmental action or acts of God,
a. In the event that the demised premises are totally
destroyed or so damaged by fire or other casualty not occurring
through fault or negligence of the Lessee or those employed by or
acting for him, that the same cannot be repaired or restored within
a reasonable time, this lease shall absolutely cease and determine,
and the rent shall abate for the balance of the term.
b. If the damage caused as above be only partial and
such that the premises can be restored to the then condition within
a reasonable time, the Lessor may, at his option, restore the same
with reasonable promptness, reserving the right to enter upon the
demised premises for that purpose. The Lessor also reserves the
right to enter upon the demised premises for that purpose. The
Lessor also reserves the right to entez upon the demised premiees
whenever necessary to repair damage caused by fire or other
casualty to the buildings of which the demised premises are a part,
even though the e(fect of such entry be to render the demised
premisee or a part thereof untenantable. In either event, the rent
shall be apportioned and suspended during the time the Lessor is in
possession, taking into account the proportion of the demised
premises rendered untenantable and the duration of the Lessor's
possession. If a dispute arises as to the amount of rent due under
this clause, Lessee agrees to pay the full amount claimed by
Lessor. Lessee shall, however, have the right to proceed by law to
recover the excess payment, if any.
7
c. Lessor shall make such election to repair the
premises or terminate this lease by giving notice thereof to Lessee
at the leased premises within thirty (30) days from the day Leasor
received notice that the demised premises had been destroyed or
damaged by fire or other casualty.
d. Lessor shall not be liable for any damage,
compensation or claim by reason of inconvenience or annoyance
arising from the necessity of repairing any portion of the
building, the interruption in the use of the premises, or the
termination of this lease by reason of destruction of the premises.
e. The Lessor has let the demised premises in its
present condition and without any representations on the part of
the Lessor. It is understood and agreed that Lessor is under no
duty to make repairs or alterations at the time of letting or at
any time thereafter, except as otherwise provided for in this
agreement.
15. DEFAUJ,T: If the Lessee:
a. Does not pay in full within ten (10) days from the
date it is due any and all installments of rent, and/or does not
pay in full when due other charges or payments herein reserved,
included or agreed to be treated or collected as rent, and/or any
other charge, expense or cost herein agreed to be paid by the
Lessee, or
b. Vacates the demised premises, or removes or attempts
to remove, or manifests as intention to remove any goods or
property therefrom otherwise than in the ordinary and usual course
of business, without having first paid and satisfied the Lessor in
full for all rent and other charges then due or that may thereafter
become due until the expiration of the term above mentioned, or
c. Fails to observe or perform any of the other terms,
covenants or conditions of this lease on the part of Lessee to be
observed and performed, which failure persists after the expiration
of twenty (20) days from the date Lessor gives notice to Lessee
calling attention to the existence of such failure, provided
however that if the matter which is the subject of the notice is of
such a nature that the same cannot reasonably be corrected within
twenty (20) days, then no default shall be deemed to have occurred
if Lessee, before the expiration of the twenty-day period from the
date of giving of the aforesaid notice by Lessor, commences the
curing of the default and diligently prosecutes the same to
completion, or
8
d. Becomes insolvent or makes an assignment for the
benefit of creditors, or if a petition in bankruptcy is filed by or
against the Lessee, or a bill in equity or other proceeding for the
appointment of a receiver for the Lessee iR filed, or if
proceedings for reorganization or for composition with creditors
under any state or federal law be instituted by or against Lessee,
or if the real or personal property of the Lessee shall be sold or
levied upon by any Sheriff,
Then and in any or either of said events, there shall be deemed to
be a breach of this lease, and thereupon and without entry or other
action by Lessor:
1. The rent for the entire unexpired balance of
the term of this lease, dS well as all other charges, payments,
costs and expenses herein agreed to be paid by the Lessee,
including but not limited to legal expenses and attorney's fees,
including those incident to the recovery of possession, brokerage
and/or putting the demised premises in good order or for preparing
the same for re-rental, or at the option of Lessor any part
thereof, and all costs. shall, in addition to any and all
installments of rent already due and payable and in arrears, and/or
any ot.her charge or payment herein reserved, included or agreed to
be treated or collected as rent, and/or any other charge, expense
or cost herein agreed to be paid by the Lessee which may be due and
paYClble and in arrears, be taken to be due and payable and in
arrears as if by the terms and provisions of this lease, the whole
unpaid balance of unpaid rent and other charges, payments, taxes,
costs and expenses were on that date payable in advance; and if the
lease or any part thereof is assigned, or if the premises or any
part thereof is sublet, Lessee hereby irrevocably constitutes and
appoints Lessor as Lessee's agent to collect the rents due by such
assignee or sublessee, and apply the same to the rent due
hereunder, without in any way affecting Lessee's obligation to pay
any unpaid balance of rent due hereunder, or in the event of any of
the foregoing at any time at the option of Lessor;
2. This lease and the terms hereby created shall
determine and become absolutely void without any right on the part
of the Lessee to save the forfeiture by payment of any sum due or
by other performance of any condition, term or covenant broken;
whereupon Lessor shall be entitled to recover damages for such
breach in an amount equal to the amount of rent reserved for the
balance of the term of this lease and other charges, payments,
costs and expenses referred to in subparagraph 1 hereof.
9
16. REMEDIES I
forth in paragraph
behalf, at Lessor's
In
15, the
option I
the event of any default as above set
Lessor, or anyone acting on Lessor's
a. May without notice or demand enter the demised
premises for the purpose of distraining or levying on any goods or
chattels therein.
b. May lease said premises or any part or parts thereof
to such person or persons as may, in Lessor's discretion, seem
best, and the Lessee shall be liable for any loss of rent for the
balance of the then current term.
c. If rent and/or any charges hereby reserved as rent
shall remain unpaid on any day when the same ought to be paid,
Lessee hereby empowers any Prothonotary or attorney of any court of
record to appear for Lessee in any and all actions which may be
brought for rent and/or the charges, payments, costs and expenses
reserved as rent, or agreed to be paid by the Lessee, and/or to
sign for Lessee an agreement for entering in any competent court an
amicable action or actions for the recovery of rent or other
charges or expense, and in said suit or in said amicable action or
actions, to confess judgment against Lessee for all or any part of
the rent specified in this lease and then unpaid, including, at
Lessor's option, the rent for the entire unexpired balance of the
term of this lease, and/or other charges, payments, costs and
expenses reserved as rent or agreed to be paid by the Lessee, and
for interest and costs together with attorney's commission of ten
percent (10%). Such authority shall not be exhausted by one
exercise thereof, but judgment may be confessed as aforesaid from
time to time as often as any of said rent and/or other char.ges
reserved as rent shall fall due ~r be in arrears, and such powers
may be exercised as well after the expiration of the original term
and/or during any extension or renewal of this lease.
d. When this lease shall be detprmined by a condition
broken, either during the original term of this lease or any
renewal or extension thereof, and also when and as soon as the term
hereby created or any ext.ension thereof shall have expired, it
shall be lawful for any attorney, as attorney for Lessee, to file
an agreement for entering in any competent court an amicable action
in judgment and ejectment against Lessee, and all persons claiming
under Lessee for the recovery by Lessor of possession of the herein
demised premises, for which this lease shall be his sufficient
warrant, whereupon, if Lessor so desires, a Writ of Possession may
issue forthwith, without any prior proceedings whatsoever, and
provided that 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
10
shall have the right upon any subsequent default or defaults, or
upon the termination of this lease as hereinbefore set forth, to
bring one or more amicable action or actions, as hereinbefore set
forth, to recover possession of the said premises.
17. CUMULATIVE EFFECT: All the remedies hereinbefore given
to Lessor and all rights and remedies given to him by law and
equity shall be cumulative and concurrent. No determination of
this lease or the taking or recovery of the premises shall deprive
Lessor of any of his remedies or actions against the Lessee for
rent due at the time, or which, under the terms hereof, would in
the future become due, as if there has been no determination, or
for sums due at the time of which, under the terms hereof, would in
the future become due as if there has been no determination, nor
shall the bringing of any action for rent or breach of covenants,
or the resort to any other remedy herein provided for the recovery
of rent, be construed as a waiver of the right to obtain possession
of the premises. Similarly, no oxercise of any of Lessor's right
given to him by law and equity, or exercisable in accordance with
the terms and provis.ions of this lease agreement, shall deprive
Lessor of any of his remedies or actions against the Lessee under
the terms of the Agreement of Sale referred to hereinabove.
18. SUBORDINATION: This lease is subject and subordinate
to the lien of all mortgages now or at any time hereinafter placed
upon any part of Lessor's property, to extensions or r.enewals
thereof, and to all advances now or hereafter made on the security
thereof. Lessee agrees, on request, to execute such further
instruments evidencing such subordination as Lessor may request,
and if Lessee fails to do so, Lessor is empower.ed to do so in the
name of Lessee.
19. MECHANICS' LIENS: The Lessee shall have no right to
encumber or subject the interest of the Lessor in the demised
premises to any mechanics, materialmens or other liens of any
nature whatsoever, and upon the filing of any such lien, the
failure of the Lessee to have the same removed from record promptly
shall constitute a violation of this agreement and entitle Lessor
at this option to taken any legal action elsewhere in this
agreement reserved to said Lessor.
20. FIRE EXTINGUISHERS: Lessee agrees to supply and
maintain at his own expense any fire extinguishers or other fire
prevention equipment required by law, rules, orders, ordinances and
regulations of any city, county or state in which the demised
premises are located, and/or required by any underwriters
association, bureau or any other similar body having jurisdiction
involving said premises.
11
21. SIGNS. Lessee will place no signs, awningll or curtainll
on any part of the exterior of Ilaid premisell or on any show window,
nor paint any brick or Iltono work, cornice work, mill work or iron
work on the front of said premilles without the written consent of
Lessor or its agent first had and obtained. Such consent shall not
be unreasonably withheld.
22. QUIET POSSESSION I It is further understood and agreed,
that subject to the terms of this lease, Lessee, paying tho rent
hereby reserved, and performing and observing the several covenantll
hereof, may peacefully hold and enjoy the Ilaid premises throughout
the duration of this lease without any interruptions by the Lessor,
his heirs or assigns or any person lawfully claiming through him.
23. LESSOR NOT A PARTNER: It is expressly underatood that
the Lessor shall not be construed or held to be a partner or
associate of the Lessee in the conduct of his business; it being
expressly understood that the relationship between the parties
hereto is and shall remain at all times that of Lessor and Lessee.
24. /oPPLICATION OF PAYMENTS RECEIVED FRQM LESSEE: Lessor
shall have the ri.ght to apply any payments made by Lessee to the
satis faction of any debt or obligation of Lessee to Lessor
according to Lessor's sole discretion and regardless of the
instructions of Lessee as to the application of any such sum,
whether such instructions be endorsed upon Lessee's check or
otherwi.se, unleos otherwise agreed upon by both parties in writing.
The acceptance by Lessor of a check or checks drawn by others than
Lessee shall in no wise af fect Lessee's 1 iabil i ty hereunder nor
shall it be deemed an approval of any assignment of this lease by
Lessee.
25. HOLDOVER: Should Lessee continue in possession after
the end of the term herein without renewal as provided for in
Paragraph 3 hereof, but with the permission of Lessor, it is agreed
that the tenancy thus created can be terminated by either party
giving to the other party not less than thirty (30) days' written
notice to expire on the day of the month from which the tenancy
commenced to run. In so continuing, Lessee agrees to pay the
monthly rental provided for herein and to keep and fulfill all
other covenants, conditions and agreements.
12
26. LBSSOR' S BNTRY AT BND or LEASB! If during the last
month of the term of thiB lease or any renewal or extension of the
said term Lessee shall have removed all or substantially all of the
Leuee's property from the premises, Lessor may, prior to the
expiration or termination of the term of the lease without
releasing Lessee from any obligations to repair or restore the
demised premises or to pay the rent in full, and without any
elimination or abatement thereof, immediately enter upon and alter
renovate and redecorate the premises.
27. NOTICE! All notices which are required or are permitted
to be given hereunder shall be in writing and shall be deemed to
have been duly given if personally delivered or sent by United
States certified mail, prepaidl
(a) If to Lessor, addressed tOI
Robert C. Fitting, Jr.
4530 Coventry Road
Harrisburg, PA 17109
If to Lessee, addressed tal
Rodney Lee Failor
R.D. * 5
Carlisle, PA 17013
Such addresses may be changed at any time and from time to time by
like written notice given by either party to the other.
(b)
28. OTHER PROVISIONS! The paragraph titles appearing in
this lease are for purposes of each reference and shall not be
considered a part of this lease or in any way to modify, amend, or
affect the provisions thereof.
29. BINDING BFFECT! All rights and liabilities herein
given to or imposed upon the respective parties hereto shall extend
to and bind the several and respective heirs, executors,
administrators, successors and assigns of said parties. No rights,
however, shall inure to the benefit of any assignee of Lessee
unless the assignment of such assignee has been approved by Lessor
in writing as aforesaid.
13
I I
II
I
?i 0\ ~ I
~~ .-
't,\9 & d~
(~ I ~f~ 'h) .~
~\!. 0- (:);::)
n '1 --
I' >:;t 'tfJ
tD~l: Cool ()t.;J
rEI:' l_~ "lw
~:. . ::'J I.J:~ q
....
~ ~ B
.,
,!
j!'
,I
, ,
,
, '
d
"
"
,
..
,,1
tr:
~:lIf'fl r,", ';I"i'
I't..,_
~ f
0.1 r\tf'
,
".
,.
'il{, q
'. '""
I'
0.,1/,;,
F,
"
<"
ifr!','
"
".',1'
,
,I
j'
'e?
~' '
~~,
~-~~
"
, ,
I ,
, I
"
'I'
, I I'
I I
"
,
~
"