HomeMy WebLinkAbout00-05134
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LANCASTER DEVELOPMENT
COMPANY
COURT OF COMMON PLEAS
CUMBERLAND COUNTY
NORRIS EDUCATIONAL SERVICES,
INC.
No. 66 - $"/2'1
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Plaintiff
v.
Defendant.
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NOTICE
€6IfftAElB..:.....:~b.atlJr ~. Co. ~~A.sOCJla:./.,"~
4th Flam, C1fI'tlb""Iau.d COtlfity Celirlhouse.:J... i.., ;!,c:..J.., /Joe.
Carlisle, P A 17013 -i
(717) 218 662Q ~ 49 -J II. ~
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You are hereby notified that on July 21, 2000, judgment by confession was entered
against you in the above-captioned case.
YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU
DO NOT HA VEA LAWYER OR CANNOT AFFORD ONE, GO TO OR TELEPHONE
THE OFFICE SET FORTH BELOW TO FIND OUT WHERE YOU CAN GET LEGAL
HELP.
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A VISO
Por este medio sea avisado que en el July 21, 2000, un fallo por admision fue
registrado contra usted del caso antes escrito.
LLEVE ESTA DEMANDA A UN ABODAGO IMMEDIATAMENTE. SI NO
TffiNE ABOGADO 0 SI NO TIENE EL DINERO SUFICENTE DE PAGAR TAL
SERVICIO, VAYA EN PERSONA 0 LLAME POR TELEFONO A LA OFICINA CUYA
DIRECCION SE ENCUENTRA ESCRITA ABAJO PARA AVERIGUAR DONDE SE
PUEDE CONSEGUIR ASISTENCIA LEGAL.
Court Administrator
4th Floor, Cumberland County Courthouse
Carlisle, P A 17013
(717) 240-6620
Date:
Prothonotary
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LANCASTER DEVELOPMENT
COMPANY
COURT OF COMMON PLEAS
CUMBERLAND COUNTY
Plaintiff
v.
NORRIS EDUCATIONAL SERVICES, No.
INC.
Defendant.
ENTRY OF APPEARANCE
TO THE PROTHONOTARY:
Enter my appearance for the Plaintiff, Lancaster Development Company, in the above-
captioned matter.
Respectfully submitted,
Dated: 7/7-0/00
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Allen C. Warshaw, Esquire
Attorney Id No. 17145
Duane, Morris & Heckscher LLP
305 North Front Street, 5th Floor
P.O. Box 1003
Harrisburg, P A 17108-1003
(717) 237-5500
Attorneys for Lancaster Development
Company
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LANCASlER DEVELOPMENT
COMPANY
COURT OF COMMON PLEAS
CUMBERLAND COUNTY
Plaintiff
v.
NORRIS EDUCATIONAL SERVICES,
INC.
No.
Defendant.
ENTRY OF APPEARANCE AND CONFESSION OF JUDGMENT FOR MONEY
TO THE PROTHONOTARY:
Kindly enter my appearance for and on behalf of the Defendant, Norris Educational
Services, hlC.
Pursuant to the warrant of attorney contained in the Office Lease Agreement, a true and
correct copy of which is attached as Plaintiff's Exhibit A to the Complaint in Confession of
Judgment for Money filed in this action, I appear for the above named Defendants and confess
judgment in favor of the Plaintiffs and against the Defendants as follows:
Office Lease Agreement:
$852,669.63
Attorney's Fees:
To Be Determined
Costs of Suit:
To Be Determined
Total:
$852,669.63
Plus Attorney's Fees and
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Allen C. Warshaw
Attorney for Plaintiff
Date: 7/10JOO
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LANCASTER DEVELOPMENT
COMPANY
COURT OF COMMON PLEAS
CUMBERLAND COUNTY
Plaintiff
v.
NORRIS EDUCATIONAL SERVICES,
INC.
No.
Defendant.
COMPLAINT FOR CONFESSION OF JUDGMENT
FOR MONEY JUDGMENT
This Complaint is filed pursuant to Pennsylvania Rules of Civil Procedure 2950, et sea.
1. Plaintiff is Lancaster Development Company ("Lancaster Development"), a
Pennsylvania partnership having its principal place of business at 1853 William Penn Way, P.O.
Box 1008, Lancaster, Pennsylvania 17605-0008.
2. Defendant is Norris Educational Services, Inc. ("Norris"), a Pennsylvania
corporation with its principal place of business at 4909 Louise Drive, Mechanicsburg, P A 17055.
3. On September 28, 1989, plaintiff Lancaster Development entered into an Office
Lease Agreement (hereinafter the "Lease") with Norris. Subsequently, Lancaster Development
and Norris entered into several amendments to the Office Lease Agreement. A true and correct
copy of that Lease Agreement and the amendments thereto is attached hereto as Exhibit "A."
4. The Office Lease Agreement contains a warrant of attorney to confess judgment.
5. The Office Lease Agreement requires that rent be paid in equal monthly
installments.
6. The Office Lease Agreement provides for late charges in the event that rent is not
paid in a timely fashion.
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7. As of June 28, 2000, Norris had failed to make payment of rent and late charges
in the amountof$1l4,669.63.
8. On June 28, 2000, Lancaster Development made written demand upon Norris that
it make full payment of all rent due under the Office Lease Agreement within ten (10) days of
the date of the letter.
9. As of this date, Norris has failed to make payment of $114,669 .63 due under the
Office Lease Agreement.
10. Defendant Norris is in default under the Office Lease Agreement by reason of the
failure to pay rent for a period of more than ten (10) days.
11. Upon Defendant Norris' default under the Office Lease Agreement by reason of
the failure to pay rent for a period of more than ten (10) days, Lancaster Development is entitled
to and hereby does declare the entire rent for the balance of the term immediately due and
payable.
12. The amount due under the full term of the lease is $720,000.00.
13. As of July 20, 2000, the following amounts are due under the Office Lease
Agreement as amended:
Past due Rent and Late Charges:
$132,669.63
Future Rents
$720,000.00
Attorney's Fees:
To Be Determined
Costs of Suit:
To Be Determined
Total Due:
$852,669.63
Plus Attorney's Fees
and Costs of Suit
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14. The Office Lease Agreement has not been assigned.
15. Judgment for Money has not been previously entered on the Office Lease
Agreement.
16. The Office Lease Agreement is less than twenty years old.
17. The Office Lease Agreement represents part of a business transaction and not a
loan for personal, household, or conswner purposes. '
18. Judgment is demanded as authorized in the warrant of attorney contained in the
Office Lease Agreement.
19. Judgment is not being entered against a natural person in connection with a
residential lease.
WHEREFORE, Lancaster Development demands judgment in its favor and against
Norris in the swn of $852,669.63 plus attorneys fees and costs as authorized by the warrant of
attorney appearing in the Office Lease Agreement, together with such other relief as this Court
deems appropriate.
Respectfully submitted,
Date: 7/20(00
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Allen C. Warshaw, Esquire
Attorney Id No. 17145
Duane, Morris & Heckscher LLP
305 North Front Street, 5th Floor
P.O. Box 1003
Harrisburg, PA 17108-1003
(717) 237-5500
Attorneys for Lancaster Development
Company
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SOL000807892
OFF ICE / F LEX B U I L DIN G
LEA S E
A G R E E MEN T
Dated ~je..,-,,~)er 25:), rqffr
Between
"Landlord"
LANCASTER DEVELOPMENT COMPANY
and
NORRIS EDUCATIONAL SERVICES, INC.
"Tenant"
Relating to
4909 Louise Drive
Suites ~08, ~09, 110, 111, 112, 113
Mechanicsburg, pennsylvania 17055
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OFF ICE
LEASE
A G R E E MEN T
Part I
MADE and executed this .28.(1.. day Of~~lW , 1989.
By and between LANCASTER DEVELOPMENT COMPANY, a partnership
having its principal place of business at 1853 William Penn Way,
P.O. Box 10008, Lancaster, Pennsylvania 17605-0008, herein called
"Landlord"; and NORRIS EDUCATIONAL SERVICES, INC., a Pennsylvania
corporation, having its principal place of business at 206 Bridge
Street, P.O. Box P, New Cumberland, pennsylvania 17070, herein
called "Tenant".
Landlord does hereby lease unto Tenant the "Premises" at the
"Rent" for the "Term" for the "Permitted Use" upon and under the
Terms and Conditions set forth in this Part I and Part II
(collectively the "Lease") all as follows:
1. Premises:
1.1 Location: 4909 Louise Drive, suites 108, 109, 110,
Ill, 112, 113, (Front door at suite 110), Lower Allen
Township, County of Cumberland, Mechanicsburg,
Pennsylvania 17055
1.2 Tenant's Rentable Square Footage: 6,000 sq. ft.
(This figure includes Tenant's pro-rata share of
common area, is more or less accurate and based on
the attached Exhibit "A", and is not subject to final
meaurement), plus the exclusive use of the outside
play area as shown on Exhibit "A".
1.3 Building Rentable Square Footage: 35,900 sq. ft.
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2. Improvements:
2.1 ( Premises leased with existing improvements.
2.2 (X) Improvements by Landlord to be completed
occupancy by Auaust 1. 1990
3. Term:
3.1 Number of Years: Twenty (20) Years
3.2 Term Begins: August 1, 1990
3.3 Term Ends: July 31, 2010
4; Rent:
4.1 Minimum Rent: $1,360,680.00
4.2 Monthly Installment:
August 1, 1990 through January 31, 1991 - $2,200.00
February 1, 1991 through July 31, 1995 - $4,620.00
August 1, 1995 through July 31, 2000 - $5,150.00
August 1, 2000 through July 31, 2005 - $6,050.00
August 1, 2005 through July 31, 2010 - $7,100.00
4.3 Additional Rent: All annual operating costs over
$0.00 per square foot as more fully described in
section 4.2 of Part II
4.4 Security Deposit: $4,375.00
5. Permitted Use: Day care center, and other educational and
ancillary activities to be operated during business
hours to be determined at the discretion of the
Tenant.
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IN WITNESS WHEREOF, the Landlord and Tenant have caused this
Part I presents to be signed by their duly authorized officers or
and year first above written.
affixed,
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the day
agents and their appropriate seals to be hereunto
S~tt.-lt;d 28,l9ffi
LANCASTER DEVELOPMEN COMPANY,
II I
IlLand:ordll '0/
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Ed~ . Hoover
Aitorney-in-Fact
NORRIS EDUCATIONAL SERVICES, INC.,
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Title
Officer/partner
Title
Officer/Partner
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Attest
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PART II
LEASE DATED
OF
5>c-p/w.W 28 / /CJ69
between
LANCASTER DEVELOPMENT COMPANY, "Landlord" and
NORRIS EDUCATIONAL SERVICES, INC., "Tenant"
1. PREMISES.
The Landlord does hereby lease unto the Tenant and the
Tenant does hereby lease from the Landlord the Premises with
the improvements erected or to be erected thereon, which is
outlined in red on Exhibit "A", attached hereto and made a part
hereof, on the terms and conditions set forth in Parts I and
II.
specific use
area
building, the term "rentable area", as used herein,
to (i) in the case of a single tenancy floor,
measured from the inside surface of the outer
or finished
column wall of the Building to the
opposite outer wall excluding only
areas ("service area")
within the outside walls used
fire towers,
elevator shafts, flues,
, stacks, pipe shafts and vertical
areas which are for the
such as special stairs or
elevators
allocation of the square footage of the
elevator and main mechanical rooms and ground floor
applicable) lobbies, and (ii) in the case of a
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mid-point of the walls separating areas leased by or hel
lease to other tenants or from areas devoted to corrid
walls enclosing the leased premises and measured to the
elevator foyers, rest rooms, mechanical rooms, closets,
vending areas and other similar facilities for of all
tenants on the particular floor (hereinafter called
floor bears to the aggregate area (excluding common
"common areas"), but including a proportio part of the
common areas located
the tenant's rentable area (excludin common areas) on such
areas) on such floor plus an the square footage
of the Building's elevator a rooms and ground
floor and basement (if
icable) lobbies. No deductions from
rentable area shall be
for columns or projections
necessary to the
The rentable area in the leased
premises has
the basis of the foregoing
hereby stipulated for all purposeS hereof as
stated
I, Section 1.2 of this Lease, whether the same
should
or less as a result of minor variations
from actual construction and completion of the leased
for occupancy so long as such work is done in
(X) In the event the Demised Premises are part of a flex
building or business center, defined herein as a building where
Tenant's are provided with their own. private entrances, private
restrooms and without any interior common areap shared by
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Tenant's, the "rentable area" shall refer to all floor area
measured from the outside surface of any exterior walls to the
middle of any demising walls.
2. IMPROVEMENTS.
If Eeotien 2.1 of Part I is ohecJecd, then Tenant aeceptc
the P:r.-emiceG n::lS ien, If section 2.2 of Part I is checked,
then Landlord shall construct improvements on the Premises in
accordance with plans and specifications which have been
prepared by Landlord and approved by Tenant prior to the
execution of this Lease. For purposes of identification, two
sets of the plans and specifications have been signed by an
authorized agent of each of the parties hereto. Access roads,
and driveways shall be for the joint use of Tenant and Landlord
and other tenants of Landlord. If the parties cannot agree
that Landlord has completed the construction of improvements in
accordance with the plans and specifications, the matter shall
be settled by arbitration in accordance with the rules of the
American Arbitration Association then in effect. Landlord
shall begin erection of the improvements upon the execution of
this Lease, and thereafter ,shall proceed with all reasonable
speed to the end that the improvements shall be completed for
occupancy by the date set forth in section 2.2 of Part I if
possible. If, because of Acts of God or of the public enemy or
because of civil commotion, riots, strikes or inability to
obtain materials or any other unavoidable event, construction
is delayed, Landlord may have a reasonable ext70sion of the
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completion date by giving Tenant notice of the delay and the
reason therefor.
3. TERM.
Tenant is to have and to hold the Premises for the Term
set forth in section 3.1 of Part I and beginning and ending as
set forth in Sections 3.2 and 3.3 of Part I. In the event that
Landlord is constructing improvements under Paragraph 2 of this
Part II, and if completion of the improvements is not completed
by the date set in section 2.2 of Part I, then the Term of this
Lease shall begin on the first day of the month fallowing the
date of actual completion and shall continue thereafter the
full Term specified in Section 3.1 of Part I. If the Term
shall begin on a date other than set forth in Section 3.2 of
Part I, the parties shall by stipulation certify the date on
which the Term has begun and in the absence of such stipulation
the Term shall conclusively presume to begin on the date set
forth in section 3.2 of Part I. If the Premises are ready for
occupancy on a day other than the first day of this month and
if Tenant accepts occupancy, Tenant may have such occupancy,
without change to the Term, by paying a pro-rata portion of the
Rent based on a thirty (30) day month.
4 . RENT.
4.1 Minimum Rent: The parties agree that the Minimum
Rent (the "Rent") for the Premises shall be as set forth in
Section 4.1 of Part I, and so long as Tenant is not in default
Tenant shall pay such rent in the equal monthly installments as
set forth in Section 4.2 of Part I, in advance, on the first
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day of each calendar month during the Term; provided, however,
that the rent for the first month of the Term shall be paid
upon the signing of this Lease. In addition, Tenant shall pay
Landlord, without setoff, the Additional Rent (as hereinafter
set forth).
4.2 Additional Rent: Tenant shall pay as additional
rent, the amount by which its pro-rata share of expenses (as
hereinafter defined) for the operation and maintenance of or
with respect to the building of which the Premises are a part,
exceeds the cost per square foot of square footage in the
Premises as stipulated in section 4.3 of Part I. The Tenant's
pro-rata share is based on the square footage as set forth in
section 1.2 and 1.3 of Part I of this Lease. "Expenses" are
defined as real estate taxes and assessments; insurance
premiums; costs for common area repairs and maintenance; snow
removal and lawn maintenance; costs of furnishing water, sewer,
gas, fuel, electricity and other utility services to the extent
not provided for in section 5.1.1; common area janitorial
service and trash removal; property management personnel; and
the cost of any other items attributable to operating or
maintaining any or all of the Premises or building or property
of which the Premises are a part.
The items of additional rent as provided in this section
4.2 shall be billed to Tenant by Landlord (whether or not such
items have been incurred by the time of billing) each month or
at such intervals as Landlord shall, in its sole discretion
deem appropriate. In the event total billings with respect to
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an item of such additional rent shall exceed, or be less than,
the actual charge incurred for which Tenant is responsible,
excess payments received from Tenant shall be credited toward
subsequent billing (with any net excess at the end of the Lease
term being repaid to Tenant) and deficits shall be included
with the next (or any subsequent) billing or billings. Tenant
shall pay all such billings for additional rent no later than
thirty (30) days after the date of each such billing.
4.3 Security Deposit: Tenant shall pay to Landlord upon
the signing of the Lease the Security Deposit set fOrth in
Section 4.4 of Part I which shall be held by Landlord as
security for the performance by Tenant of its obligations under
this Lease and if Tenant is not in default at the termination
of this Lease, then the security Deposit shall be returned to
Tenant.
5. UTILITIES AND SERVICES.
5.1 Utilities: Landlord shall furnish the Premises with
electricity, heating and air conditioning for the normal use
and occupancy of the Premises as general offices. If Tenant
shall require electricity or install electrical equipment,
including but not limited to electrical heating, refrigeration
equipment, electronic data processing machines, or other
machines or equipment which will in any way increase the amount
of the electricity usually furnished for use as general office
space, or if Tenant shall attempt to use the Premises in such a
manner that the services to be furnished by Landlord would be
required during periods other than or in addition to normal
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business hours, which are 7:30 a.m. to 6:00 p.m., Monday
through Friday, excluding holidays, Tenant will obtain prior
written approval therefor from Landlord (and Landlord may
require the installation of a separate sub-meter) and Tenant
will pay for the resulting additional direct expense, including
the expense resulting from the installation of such equipment
and meters as Additional Rent promptly upon being billed
therefor. Landlord shall not be liable for any damages to
Tenant resulting from Landlord's failure to deliver services as
stated herein.
5.1.1 If utility services supplied to the property
are separately metered for the Premises, the cost of such
separately metered utility service shall be paid by Tenant
promptly upon being billed therefor, whether such billing
be by Landlord or the utility company. The charge to
Tenant by Landlord for electricity consumption shall be
the same retail rate which would be payable if Tenant
purchased electricity directly from the utility company
(but not less than that rate actually payable by Landlord)
including applicable taxes and fuel adjustment charges.
5.1.2 Landlord reserves the right, without any
liability to Tenant, and without being in breach of any
covenant of this Lease, to interrupt or suspend service of
any of the heating, ventilating, air-conditioning,
electric, sanitary, or other Building systems serving the
Premises or Building, or the rendition of any of the other
services required by Landlord under this Lease, whenever
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and for so long as may be necessary by reason of accident
,
emergencies, strikes or the making of repairs or changes
which Landlord is required by this Lease or by law to make
or in good faith deems advisable, or by reason of
difficulty in securing proper supplies of fuel, steam,
water, electricity, labor or supplies, or by reason of any
other cause beyond Landlord's reasonable control,
including without limitation mechanical failure and
governmental restrictions on the use of materials or the
use of any of the Building systems. In each instance,
however, Landlord shall exercise reasonable diligence to
eliminate the cause of interruption and to effect
restoration of service, and shall give Tenant reasonable
notice, when practicable, of the commencement and
anticipated duration of such interruption. Tenant shall
not be entitled to any diminution or abatement of rent or
other compensation or damages nor shall this Lease or any
of the obligations of the Tenant be affected or reduced by
reason of the interruption, stoppage or suspension of any
of the Building systems or services arising out of the
causes set forth in this paragraph.
5.2 Water Service: Landlord shall provide water for
lavatory purposes drawn through fixtures installed by
Landlord. For water furnished for any other purpose, Tenant
shall pay Landlord therefore at the same rates as would have
been charged Tenant by the city in which the Premises are
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located, plus 10%. Tenant shall not waste or permit the waste
of water.
5.3 Common Area Maintenance: The Landlord shall cause
the common areas of the Building in which the Premises are
located to be cleaned at reasonable intervals. If the rest
rooms are in a common area, then the Landlord shall maintain
same in good and clean cOndition, and the tenant and employees
and invitees shall have access to toilet facilities in common
with others having a right thereto.
5.4 Repairs: The Tenant shall at its sole cost and
expense maintain in good repair the Premises and every part
thereof, including waste disposal systems, dedicated heating
and air conditioning systems, and doors, excluding only the
following which Landlord shall maintain in good repair: roof,
foundation, exterior walls, downspouts and gutters, provided,
however, that Tenant shall be required to make repairs to the
roof, foundation, exterior walls, downspouts and gutters if
such repairs are occasioned by any act of negligence by Tenant,
its officers, employees, agents, customers or invitees. If
Tenant requests Landlord to perform repairs or maintenance in
Tenant's Demised Premises (i.e. change light bulb~, clogged
sinks, leaking faucets! ballasts for lights, etc.) and such
repairs are not specified in section 4.2 Additional Rent,
Tenant shall pay the costs associated with such as repairs and
maintenance. Tenant shall return the Premises in good
condition, repair and in a broom-clean condition. In the event
that Tenant fails to comply with any terms of this paragraph
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then Landlord shall undertake such repairs and cleaning with
Tenant being liable for all costs thereof, including any
expenses incurred by Landlord to enforce this provision,
whether court costs, attorneys' fees or any other cost of
collection and enforcement.
5.5 Heatinq Ventilation and Air Conditioninq Maintenance
In the event the Demised Premises have specifically dedicated
heating and air conditioning equipment for the Tenant's
premises, Landlord shall provide for standard preventative
maintenance, (see Exhibit "C"), on all heating and air
conditioning equipment and bill Tenant for this work as
performed.
5.6 Clean Condition: The Tenant shall keep the Premises
in a clean, sanitary and safe condition to the satisfaction of
the Landlord and in accordance with the laws, ordinances and
regulations of the Federal Government, Commonwealth of
Pennsylvania, and of the Township in which the Premises is
situated. Tenant shall comply with all requirements of law,
ordinances and regulations, including those rules and
regulations attached hereto and referred to as Exhibit "B" and
including those relating to occupational safety and health.
There shall be no outside storage, including above-ground
storage tanks.
5.7 Snow Removal and Lawn Maintenance: Landlord shall
mow lawns, trim shrubbery, weed where appropriate and remove
snow from walkways, roadways, and parking areas.
5.8 Janitorial service: (Check applicable paragraph):
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5.8.1 (X) TENANT'S OBLIGATION: Tenant is
responsible for janitorial services and trash removal from the
Premises to the common area dumpster.
additional rent as descr'
attached
provide Tenant with trash removal and janitorial
accordance with "Exhibit D Cleaning Specif'
hereto. Such janitorial service
included in the
janitorial serv
Part II, 4.2. Any supplemental
by Tenant shall be arranged for
either with Landlord's janitorial
6. LIABILITY INSURANCE.
Tenant further covenants that it will at all times during
the Term at its own expense, maintain and keep in force for the
mutual benefit of Landlord and Tenant, general pUblic liability
insurance against claims for personal injury, death, or
property damage occurring in, on or about the Premises to
afford protection to the limit of not less than One Million
($1,000,000.00) Dollars combined for both bodily injury and
physical damage as the result of anyone occurrence. Tenant
shall deliver to Landlord a certificate of said insurance or
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renewals therefor from time to timo during the Term of the
Lease.
7. FIRE INSURANCE.
Landlord shall procure and maintain in full force and
effect non-assessable fire insurance policies, which insurance
"hall 'nclude protectlo:5a:ainst those ,~ence" covered by
* at the commencement of this lease an~VannuallY thereafter,
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standard "extended coverage" clause. Such policies, shall name
Landlord as the insured. In the event of loss, insurance
proceeds shall be held in escrow by Landlord's mortgagee, if
any, and otherwise by an escrow agent selected by Landlord
pending repair of the damages by Landlord, and upon completion
the proceeds shall be paid to Landlord or paid to Landlord's
mortgagee if required by it. In the event Landlord or Tenant
elects to terminate the Lease as hereinafter provided,
insurance proceeds shall be paid immediately to Landlord or its
mortgagee if required by it.
8. USE OF BUILDING.
The parties hereto agree that the Premises may be used for
the permitted use set forth in section 5 of Part I and uses
incidental thereto. Tenant shall not permit the Premises to be
vacant.
9. ALTERATIONS.
No alterations shall be made in or to the Premises without
the prior written consent of the Landlord. Lighting fixtures
shall remain on the Premises at the termination of the Lease
and shall become the property of the Landlord. All machines,
equipment, fixtures and supplies to be placed upon the premises
by the Tenant and not included on the plans and specifications
for the building shall remain the property of the Tenant and
shall be removed if so directed by Landlord at the termination
of the Lease; but the Tenant agrees to repair any damage to the
Premises caused by the removal of such machines, equipment,
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fixtures or supplies, provided any air conditioners shall
remain even if supplied by Tenant.
10. SIGNS AND EXTERIOR ATTACHMENTS.
No signs, lights, or other attachments or fixtures shall
be placed on the exterior of the improv~nents, in the windows,
or otherwise placed on the Premises. Tenant acknowledges the
appearance of the Premises affects the value of other nearby
real estate owned by Landlord and that Landlord has a direct
economic interest in the appearance of the Premises. The
appropriateness of such items, being a matter of esthetic
judgment, shall be entirely within the discretion of the
Landlord and there shall not be any standard or requirement of
equality between these Premises and other real estate owned by
Landlord.
11. FIRE AND OTHER DAMAGE.
In case of damage to the Premises by a risk insured
against under Paragraph 7 of this Part II, Landlord, unless it
shall otherwise elect as hereinafter provided, shall repair or
cause to be repaired such damages with reasonable dispatch
after receiving from the Tenant written notice of the damage.
If the damages are such as to render the Premises untenantable,
the rent shall be abated to an extent corresponding with the
period during which and the extent to which the Premises have
become untenantable; provided, however, if such damages are
caused by the carelessness or negligence or improper conduct of
Tenant or of a subtenant, or the agents, employees, visitors,
invitees or licensees of Tenant or of a Subtenant, then
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notwithstanding such damages and untenantability, Tenant shall
be liable for rent without abatement. In the event of damage
to the Premises to the extent of more than fifty (50%) percent
of the value of such Premises, Tenant shall give Landlord
written notice of the damage, (but failure to give ,notice shall
not be binding upon Landlord) after which either party may
determine with reasonable dispatch, that the Lease shall be
terminated, in which event all rent shall abate and the Lease
terminate as of the date of the occurrences of the event
causing such damage.
12. CONDEMNATION.
The Tenant may at its option terminate this ~ease if any
portion of the Premises is condemned by any governmental body
or by any other body or organization possessing the power of
condemnation provided such condemnation substantially impairs
the use or enjoyment by Tenant o~the Premises. In case of the
taking through eminent domain of all, or any portion, of the
premises, the Landlord shall notify the Tenant in writing of
such taking. Within sixty (60) days after receipt of such
written notice, the Tenant shall notify the Landlord, in
writing, whether such taking through eminent domain in the
opinion of the Tenant SUbstantially impairs its use or
enjoyment of the Premises. If the Tenant's decision on this
matter is in the affirmative, then it shall also include in
said notice the time when it desires to terminate the Lease,
which time shall not be earlier than physical work (other than
surveying and staking out) shall be instituted on the Premises
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by the condemning authority, nor later than sixty (60) days
after the same time. The failure of the Tenant to give notice
set forth above as required and within the time limit set forth
above, shall be conclusively construed as a decision on the
Tenant's part that such taking does not substantially impair
its use or enjoyment of the Premises. On the other hand, the
giving of such notice by the Tenant does not bind the Landlord
as to the correctness of the Tenant's decision that its use or
enjoyment of the Premises is SUbstantially impaired by the
taking.
13. TOXIC WASTES, ETC.
13.1 Tenant shall not use any portion of the Leased
Premises for the production, storage, deposit or disposal of
toxic, dangerous or hazardous substances or pollutants,
including nuclear fuel or wastes, and no substances or
pollutants shall ever be placed or located upon the Leased
Premises by the Tenant, which substances or pollutants, if
found upon the Leased Premises or if found elsewhere and
determined to have come from the Leased Premises, would subject
Landlord to any damages, penalties or liabilities under any
applicable federal, state or local law, or under any civil
action.
13.2 Tenant shall not bury or place any underground
storage tanks on the Leased Premises whether or not such
storage tanks would be subject to the jurisdiction of the
Environmental Protection Agency under the Comprehensive
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Environmental Response, Compensation, and Liability Act of 1980
and the Resource Conservation and Recovery Act, as amended.
13.3 Tenant shall not place on or within the Leased
Premises any hazardous material including, but not limited to,
unreaformaldehyde foam insulation, polychlorinated biphenyls
and asbestos.
14. NON-LIABILITY OF LANDLORD.
(a) The Landlord shall not be liable to the Tenant, any
officer, emp1oyee, agent, invitee, licensee or visitor of the
Tenant, or any other person, for damage or injury to any person
or property caused in whole or in part, by any act, omission or
neglect of the Tenant, its contractor, employees or agents,
invitee, licensee, or visitor, or any happening in any manner
on the Premises and Tenant shall indemnify, defend and hold
harmless Landlord from any claim, loss or liability therefor
provided, however, Landlord shall be liable for its own
affirmative negligence.
(b) All property kept, stored or maintained on the
Premises shall be so kept, stored or maintained at the risk of
the Tenant only, and the Landlord shall not be liable for any
loss or damage to the Tenant or his property.
15. SUBLEASE.
The Tenant shall not have the right to sell, assign,
transfer, mortgage, pledge, sublease or sublet the Premises
without the Landlord's prior written consent. In the event
that the Tenant proposes to sublease or sublet the Premises or
any portion thereof, Tenant shall give to Landlord its written
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notice which notice shall set forth (i) the identity, business
and financial condition of the proposed sub-tenant, (ii) the
terms and conditions of the proposed sublease, (iii) any other
relevant information requested by Landlord and (iv) an offer by
Tenant and proposed sub-tenant for the release of Tenant from
this Lease and the establishment of the Landlord-tenant
relationship between Landlord and proposed sub-tenant under the
terms and conditions of the proposed sublease. Landlord shall
have the right to (a) withhold consent, if reasonable, (b) to
grant consent (in which case Tenant and Landlord shall divide
equally any increase in rent), or (c) to release Tenant from
this Lease and accept the offer of the proposed sub-tenant to
establish the Landlord-tenant relationship between Landlord and
proposed sub-tenant under the terms and conditions of the
proposed sublease. In the event that the proposed sublease is
of a portion of the Leased Premises, and Landlord consents to
the sublease, the rent in this Lease shall be prorated between
the portion proposed to be subleased and the balance of the
premises on a square foot basis.
16. VOLUNTARY OR INVOLUNTARY ASSIGNMENT.
Neither this Lease nor any interest therein shall be
assignable or otherwise transferable by operation of law or by
voluntary assignment or for the benefit of creditors without
the written consent of the Landlord, and such inhibition
against voluntary assignment includes and comprehends any and
every assignment which might otherwise be affected or
accomplished by bankruptcy, receivership, attachment, execution
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or other judicial process or proceeding. If any assignment for
the benefit of its creditors should be made by the Tenant, or
if a voluntary or involuntary petition in bankruptcy, or for
reorganization, or for an arrangement should be filed by or
against the Tenant, or if the Tenant should be adjudicated a
bankrupt or insolvent, or if a receiver is appointed of or for
the Tenant, or for all or a substantial part of its property,
or if any such assignment or transfer by operation of law
should occur, then and in any such event, the Landlord may at
its option, terminate this Lease by notice to the Tenant. The
provisions of this paragraph shall not apply to any of the
rights, titles and interest of the Landlord in, to or under
this lease.
17. SURRENDER AT LEASE TERMINATION.
The Tenant shall, upon the termination of the Term of this
Lease, surrender to the Landlord the Premises and all building
apparatus, machinery, equipment and fixtures situated thereon
except items which may be removed under Section 9 of Part II.
All alterations, improvements, and other additions which may be
made or installed by either party to, in, upon, or about the
Premises shall either be removed by Tenant under Section 9 of
Part II or become the property of the Landlord as the Landlord
may elect and if Landlord elects to keep the same they shall be
surrendered to the Landlord by the Tenant without any damage,
injury or disturbance thereto, or payment therefor, and
otherwise Tenant shall repair any damage caused by removal.
18. EVENTS OF DEFAULT.
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If Tenant fails to pay any installment of rent promptly on
the day when due and payable hereunder, and shall continue in
default for a period of ten (10) days, or if Tenant shall fail
to promptly keep and perform any other affirmative, covenant or
agreement of this Lease, strictly in accordance with the terms
thereof and shall continue in default for a period of ten (10)
days after written notice thereof by Landlord of default and
demand of performance or compliance, then such shall be an
Event of Default. If any default shall occur, other than in
the payment of money, which cannot with due diligence be cured
within such period of ten (10) days from and after the giving
of notice as aforesaid, commence to cure such default and
proceeds diligently and with reasonable dispatch to take all
steps and do all work required to continue to cure such default
and does so cure such default, then Landlord shall not have the
right to declare an Event of Default. Any of the following
shall also constitute an Event of Default: Tenant is
adjudicated a bankrupt, institutes proceedings for a
reorganization or for an arrangement under the Bankruptcy Act,
or an involuntary petition in bankruptcy is filed against
Tenant, which is not dismissed within ninety (90) days.
19. LANDLORD RIGHTS.
Upon an Event of Default, Landlord may, without notice,
declare a Default, and upon a Default, Landlord may:
19.1 Rent for Term: Declare the entire rent for the
balance of the Term immediately due and payable. The Landlord
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shall have the immediate right to enforce collection of these
payments against the Tenant.
19.2 Warrant of Attornev to Confess Judqement and
Eiectment: Any attorney (including the Landlord's attorney)
may immediately at the request of the Landlord and based on an
affidavit of default by the Landlord, sign an agreement for the
entering in any competent court an amicable action and
confession of judgment in ejectment against the Tenant, and all
persons claiming under the Tenant, for the recovery by Landlord
of possession of the Premises, for which this provision shall
be a sufficient warrant. Thereupon a Writ of Possession may
issue forthwith for possession of the Premises. If for any
reason after such amicable action and confession of judgment in
ejection has been commenced, the same shall be terminated by
way of compromise, settlement or jUdgment of the court leaving
the Tenant and those claiming under the Tenant in possession of
the Premises under the Lease, Landlord shall have the right in
the event of any subsequent default or defaults to bring one or
more future amicable actions and confessions of judgment in
ejectment to recover possession of the Premises for such
subsequent default. This remedy for possession shall be in
addition to any other .remedy herein provided and specifically
shall be in addition to the right of the Landlord to repossess
the Premises peaceably in the event of default or abandonment
of the Premises by the Tenant.
19.3 Warrant of Attornev to Confess Judqement for MoneV
Damaqes Aqainst Tenant: Upon Default the Tenant hereby
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empowers any Prothonotary or any Attorney of any Court of
Record in Pennsylvania to appear and confess judgement for any
and all such rental, damages, additional rental or charges
together with reasonable attorney's fees. The authority
granted by the Tenant to Confess Judgement shall not be
exhausted by one exercise thereof, but the power granted may be
exercised in any subsequent action against the Tenant. The
authority to confess judgement shall continue through the
original term of this Lease and for any renewals, and following
termination of the Lease, for any period for which the tenant
has possession of the Demised Premises.
20. HOLDING OVER.
In the event Tenant shall continue to occupy the Premises
after the expiration or any renewal thereof, such occupancy
shall be deemed to be under a tenancy at sufferance and under
the same terms and conditions set forth in this Lease; except,
that the monthly Rent during such continued occupancy shall be
double the amount in effect immediately prior to expiration,
and if Landlord elects to accept monthly Rent therefor, a
tenancy from month-to-month only shall be created and not for
any longer period.
21. INTEREST AND COLLECTION EXPENSES.
Interest shall accrue on any monies due from Tenant to
Landlord from the date the same are due (including rent and
money advanced by Landlord to others on account of the failure
of Tenant to perform hereunder) at the rate of one and one-half
(1-1/2%) percent per month until the same is paid and Tenant
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shall pay the interest upon demand. If Landlord consults any
attorney for the collection of any sums due from Tenant or
otherwise in connection with Tenant's performance hereunder,
Tenant shall, whether or not proceedings are instituted,
reimburse Landlord the reasonable attorney fees and court
costs, if any.
22. SUBORDINATION.
Tenant shall subordinate its interest in the Premises to
the lien, operation and effect of mortgages as requested by
Landlord from time to time, provided that such subordination
shall permit Tenant to occupy the Premises under the terms of
the Lease so long as Tenant is not in default.
23. ADDITIONAL INSTRUMENTS.
Tenant shall, at the request of Landlord, execute such
additional instruments Landlord's mortgagee may request from
time to time or as may be required or convenient hereunder not
inconsistent herewith.
24. LANDLORD'S COVENANT OF TITLE AND QUIET ENJOYMENT.
Landlord covenants and warrants that upon the term of the
Lease commencing, it shall have full right and lawful authority
to enter into this Lease for the full Term hereof, and that
Landlord will be lawf~lly seized of the entire Premises and
will have good title thereto and that at all times when Tenant
is not in default under the Terms and during the Term of this
Lease, Tenant's quiet and peaceable enjoyment of the Premises
shall not be disturbed or interfered with by anyone. Landlord
in person or by agent shall be permitted to enter upon the
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Premises at reasonable times to examine the same or to make
such repairs as are required hereunder.
25. SUCCESSORS AND ASSIGNS.
This Lease shall inure to the benefit of and shall bind
the heirs, successors and assigns of the parties to the extent
that the parties' rights hereunder may succeed and be assigned
*
according to the terms hereof.
26. DESCRIPTIVE HEADINGS.
The descriptive headings of the several paragraphs hereof
are inserted for convenience only and shall not control or
affect the meaning or construction of any of its provisions.
27. SERVICE OF NOTICE.
If at any time after the execution of this Lease it shall
become necessary or convenient for one of the parties hereto to
serve any notice, demand or communication upon the other party,
such notice, demand or communication shall be in writing signed
by the parties serving the same, sent by United States mail, to
the respective addresses set forth in the preamble of Part I,
or at such other address as either party may have furnished to
the other in writing as a place for the service of notice. Any
notice so mailed shall be deemed to have been given as of the
time it is deposited in the united States mail.
28. WAIVER OF SUBROGATION.
Each party waives rights of subrogation against the other
with respect to any insured risks to the extent such waiver
does not invalidate such insurance or reduce the proceeds.
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* A transfer of shares of the Tenant cor 0 ion shall not be
construed to be an. impermissable assignme~t under this Lease.
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29. CONSOLIDATION.
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This Part II and the accompanying Part I constitute one
agreement and may be signed in any number of counter parts and
shall be construed under the laws of the Commonwealth of
Pennsylvania.
IN WITNESS WHEREOF, the Landlord and Tenant have caused this
Part II presents to be signed by their duly authorized officers or
agents and their appropriate seals to be hereunto affixed, the day
and year first above written.
LANCASTER DEVELOPMENT COMPANY,
J
"Landlord If / /
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~p~bul~) JQ8C/
By
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. Hoover
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Attorney-in-Fact
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NORRIS EDUCATIONAL SERVICES, INC.,
"Tenant"
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By
Officer/Partner
Attest
Title
Officer/Partner
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.... 7 ._ T~{tS ~UA.R.(WTY A,s given ,jo~nj;.ly by, Timotj;l.y R. Norrs, ,
c/.-O '...llu lorK ~b J jVeA-./ li..A"1..k{c.-..cR /4 /?o?c) /TZ-tV
4 Nottingham Road, Camp nill, renn3ylvania 17011" (the
GUARANTY
"Guarantor"), to LANCASTER DEVELOPMENT COMPANY, 1853 William
Penn Way, P.O. Box 10008, Lancaster, Pennsylvania 17605-0008
(the "Landlord").
RECITALS
At the request of the Guarantor, the Landlord has
entered into a lease with Norris Educational Services, Inc.,
(the "Tenant"), for premises at 4909 Louise Drive, suites
108-113, Mechanicsburg, pennsylvania 17055, which is dated the
date of this Guaranty (the "Lease"), and
The Landlord would not have entered into the Lease
except for the request of the Guarantor and execution and
delivery of this Guaranty; and
In consideration of the Landlord entering into the
Lease with Tenant;
The Guarantor agrees as follows:
1. Guarantv. The Guarantor, for itself and its
successors and assigns, guaranties the prompt payment when due,
or whenever payment may become due under the terms of the Lease,
of all payments of rent, additional rent, and all other charges,
expenses and costs of every kind and nature, which are or may be
due now or in the future under the terms of the Lease, any
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agreements or documents related to the Lease, or any other
transaction between the Landlord and the Tenant directly or
indirectly related to the Lease; and the complete and timely
performance, satisfaction and observation of the terms and
conditions of the Lease, and related obligations arising by
reason of the Lease, required to be performed, satisfied or
observed by the Tenant.
2. Coveraqe of Guarantv. This Guaranty extends to
any and all liability which the Tenant has or may have to the
Landlord by reason of matters occurring before the signing of
the Lease by the parties or commencement of the term of the
Lease or by matters occurring after the expiration of the term
of the lease by reason of removal of Tenant property, surrender
of possession or other matters. This Guaranty extends to any
successor of the Lessee, any assignee or sublessee of the
Lessee, to any extensions or renewals of the Lease, and to any
term established by reason of the holdover of the Tenant, an
assignee or sublessee.
3. Performance Guarantv. In the event that the
Tenant fails to perform, satisfy or observe the terms and
conditions of the Lease, and related Lease obligations required
to be performed, satisfied or observed by the Tenant, the
Guarantor will promptly and fully perform, satisfy and observe
the obligation or obligations in the place of the Tenant. The
Guarantor shall pay, reimburse and indemnify the Landlord for
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any and all damages, costs, expenses, losses and other
liabilities arising or resulting from the failure of the Tenant
to perform, satisfy or observe any of the terms and conditions
of the Lease, and related obligations.
4. waiver of Notices. without notice to or further
assent from the Guarantor, the Landlord may waive or modify any
of the terms,. conditions of the Lease, or related Tenant
obligations; or compromise, settle or extend the time of payment
of any amount due from the Tenant or the time of performance of
any obligation of the Tenant. These actions may be 'taken by the
Landlord without discharging or otherwise affecting the
obligations of the Guarantor.
5. Lease Securitv. This Guaranty shall remain in
full force and effect, and the Guarantor fully responsible for
the performance of the terms and conditions of the Lease.
6. Unconditional Obliqations. The liability of the
Guarantor is direct, immediate, absolute, continuing,
unconditional and unlimited. The Landlord shall not be required
to pursue any remedies it may have against the Tenant as a
condition to enforcement of this Guaranty. Nor shall the
Guarantor be discharged or released by reason of the discharge
or release of the Tenant for any reason, including a discharge
in Bankruptcy, receivership or other proceedings, a
disaffirmation or rejection of the Lease by a trustee,
custodian, or other representative in Bankruptcy, a stay or
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other enforcement restriction, or any other reduction,
modification, impairment or limitations of the liability of the
Tenant or any remedy of the Landlord.
7. Subordination of Subroqation Riqhts. The
Guarantor subordinates any and all claims which the Guarantor
has or may have against the Tenant by reason of subrogation for
payments or performances under this Guaranty or claims for any
other reasons or cause. The Guarantor agrees not to assert any
claim which it has or may have against the Tenant, including
claims by reason of subordination under this Guaranty, until
such time as the payment and other obligations of the Tenant to
the Landlord are fully satisfied and discharged.
8. Bindinq Effect. This Guaranty is binding upon the
Guarantor, its successor and assigns, and is binding upon and
shall inure to the benefit of the Landlord, its successors and
assigns. No assignment or delegation by the Guarantor shall
release the Guarantor of its obligations under this Guaranty.
The term "Tenant" used in this Guaranty includes also the first
and any successive assignee or sublessee of the Tenant or any
assignee or sublessee of the Tenant.
9. MOdifications. The Guaranty may not be modified
orally, but only by a writing signed by both the Guarantor and
the Landlord. Modifications include any waiver, change,
discharge, modification, or termination.
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. In witness whereof intending to be
Guarantor has duly signed this Guaranty this
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WITNESS:
, 1989.
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bound, the
day of
GUARANTOR: TIMOTHY R. NORRIS
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EXHIBIT "B"
RULES AND REGULATIONS
1. No part or the whole of the sidewalks, plaza areas,
entrances, passages, courts, stairways, corridors or
halls of the building or the real property shall be
obstructed or encumbered by any Tenant or used for any
purpose other than ingress and egress to and from the
space demised to such Tenant.
2. No awnings or other projections shall be attached to the
outside walls or windows of the building. No curtains
blinds, shades, or screens shall be attached to or hung
in, or used in connection with, any window or door of
the space demised to any Tenant other than those
specified or supplied by Landlord. In the event such
shades or screens are specified or supplied by Landlord,
removal of same at any time will be prohibited.
3. No sign, advertisement, object, notice or other
lettering shall be exhibited, inscribed, painted, or
affixed on any part of the outside or inside of Tenant's
premises, so as to be visible from the exterior, without
prior written consent of Landlord.
4. No show cases or other articles shall be put in front of
or affixed to any part of the exterior of the building.
5. The water and wash closets and other plumbing fixtures
shall not be used for any purposes other than those for
which they were constructed, and no sweepings, rubbish,
rags, or other substances (including, without
limitation, coffee grounds) shall be thrown therein.
All damage resulting from any misuse of the plumbing
fixtures shall be borne by the Tenant who, or whose
agents, employees, visitors, licensees, contractors or
suppliers, shall have caused such damage.
6. No Tenant, nor any of its agents, employees, visitors,
licensees, contractors or suppliers at any time bring or
keep upon the leased premises any flammable, combustible
or explosive fluid, chemical or substance without
Landlord's prior approval, and Tenant shall obey fire
regulations and procedures governing said leased space
and building.
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EXHIBIT "B"
RULES AND REGULATIONS
Page Two
7. No Tenant shall mark, paper, paint, bore into, make any
alterations or additions to, or in any way deface any
part, including equipment and fixtures, of the leased
space or the building of which it forms a part, without
the prior written consent of Landlord. No wires shall
be installed except in conduits, ducts or outlets
established for that purpose, unless prior written
consent of Landlord has been obtained. No Tenant shall
lay carpeting, so that the same shall come in direct
contact with the floor of the leased space, and, if
Tenant desires to install carpeting, an underlayment
shall be first laid, without the use of cement or other
similar adhesive material. If any Tenant desires to
install any floor covering other than carpeting, subject
to the prior consent of Landlord, such floor covering
shall be installed in accordance with the manufacturer's
specifications.
8.
the leased space, without the prior written c of
Landlord, provided, however, that the ng,
refrigerating and preparing of ages and light
snacks for employees sha permitted if there are
appropriate facili' and equipment for such purposes.
No Tenant s cause to permit any unusual or
obje able odors to be produced upon or emanate from
9. Neither the whole nor any part of the space demised to
any Tenant shall be used for manufacturing, without
prior written approval from the Landlord, or for the
sale at auction of merchandise, goods, or property.
10. No Tenant shall make, or permit to be made, any unseemly
or disturbing noises or disturb or interfere with other
Tenants or occupants of the building or neighboring
buildings or premises. ~lhcthcr' by the. U.3e. of all:,!
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'mua~eal ~n3trUll\e:l,t, Xll. ~o, t;e....e.vL5~Ol, se , 0 "el. a.U ~o
dcviec, unmu3ical nei3c, ,.hiatling, ain~in~, or in any
other 'lay_ Nothing shall be thrown out of any doors,
windows, or down any passageways or stairs.
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EXHIBIT "B"
RULES AND REGULATIONS
Page Three
11. All moving of safes, freight, furniture or bulky matter
of any description to and from the leased space, shall
only take place within the confines of specified
passageways or stairs, and during the hours designated
by Landlord. There shall not be used in any space, or
in the public walkways of the building, either by the
Tenant or by jobbers or others, in the delivery or
receipt of merchandise, any hand trucks, except those
equipped with rubber tires.
12. No Tenant shall use or occupy or permit any portion of
the space demised to such Tenant to be used or Dccupied
as an employment bureau or for the storage, manufacture
or sale of liquor, narcotics or illegal drugs, except
those used in their normal course of business.
13. Landlord shall have the right to prohibit any
advertising by any Tenant which, in Landlord's opinion,
tends to impair the reputation of the Building, and upon
notice from Landlord, such Tenant shall refrain from or
discontinue such advertising.
14. No space demised to any Tenant shall be used, or
permitted to be used, for lodging ex ~lccpin~ or for any
immoral or illegal purpose.
15. The requirements of Tenants will be attended to only
upon application at the office of Landlord. Building
employees shall not be required to perform, and shall
not be requested by any Tenant. to perform, any work
outside of their regular duties, unless under specific
instructions from the office of Landlord or the building
management.
16. canvassing, soliciting, and peddling in the buildings
are prohibited, and each Tenant shall cooperate to
prevent the same..
17.
cats.and dogs shall not be
Animals shall be permitted
integral part of the edu
basis.
kept about the Premises.
to the extent they are an
ional program on a temporary
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EXHIBIT "B"
RULES AND REGULATIONS
Page Four
18. No Tenant shall install or permit or allow installation
of a television, radio, or two-way radio antenna, or any
other similar antenna, on the roof, in the windows or
upon the exterior of the leased space of the building,
without the prior written consent of Landlord.
19. No Tenant shall tie in, or permit others to tie in to
the water supply on the premises without prior written
consent of the building management.
20. No Tenant shall remove, alter or replace the building
standard ceiling light diffusers in any portion of the
leased space without the prior written consent of
Landlord.
21. Except for purposes of emergency, notices, posters, or
advertising media will not be permitted to be affixed on
the exterior of the building.
22. Business machines and mechanical equipment belonging to
Tenant which cause noise or vibration that may be
transmitted to the structure of the building or to any
space therein to such a degree to be objectionable to
Landlord or to any Tenant in the building shall be
installed and maintained by Tenant, at Tenant's expense,
on vibration eliminators or other devices sufficient to
eliminate such noise and vibration.
23. Tenant shall immediately notify the building management
of any serious breakage, or fire or disorder, which
comes to its attention in its premises or any of the
common areas of the building.
24. Tenant shall apply, at Tenant's cost, such reasonable
pest extermination measures as Tenant deems reasonably
necessary.
25. Tenant shall not burn any trash or garbage of any kind
in or about the demised premises.
26. Leasee shall not permit the use or placement of door
mats or the like on the exterior of any entrance door to
the demised premises.
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EXHIBIT "E"
RULES AND REGULATIONS
Page Five
27. For purposes of these Rules and Regulations, the
"building management" shall mean the duly designated
representative of Landlord to manage the building.
28. Landlord reserves the right to rescind, amend, alter or
waive any of the foregoing Rules-and RegUlations at any
time when, in its judgment, it deems it necessary,
desirable or proper for its best interest and for the
best interests of the Tenants, and no such rescission,
amendment, alteration or waiver of any rule or
regulation in favor of one Tenant shall operate as an
alteration or waiver in favor of any other Tenant.
Landlord shall not be responsible to any Tenant for the
non-observance or violation by any other Tenant of any
of these Rules and RegUlations at any time.
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AMENDMENT
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THE
LEASE
ADDITIONAL SPACE
AGREEMENT made this I <t" day of ~ OJ~ ,
between LANCASTER DEVELOPMENT COMPANY ("Landlord"), and NORRIS
EDUCATIONAL SERVICES, ("Tenant").
1991,
BACKGROUND
A. Tenant and Landlord entered into a Lease dated
September 28, 1989, wherein Tenant leased 6,000 square feet of 4909
Louise Drive (Suites 108-113), (the "Building"), Mechanicsburg,
Pennsylvania 17055. The aforesaid Lease is herein referred to as the
"Lease".
B. Tenant desires to lease additional space in the
Building as set forth herein.
NOW, THEREFORE, the parties hereto, intending to be
legally bound, agree as follows:
1. Effe~tive for the period August 1, 1991 to July 31,
2010 (July 31, 2010 being the expiration date of the term of the Lease),
the premises,leased under the lease (the "Premises") shall be expanded
to include the additional space, suite l14, in the Building consisting
of 815 square feet as shown on Exhibit "A-2" hereto (the Expansion
Premises"). The Expansion Premises are contiguous to the Premises.
2. During the above-stated period applicable to the
Expansion Premises, all the terms and conditions of the Lease shall
apply to the Expansion Premises as if it were an original part of the
premises, subject to the following:
The parties to the above referenced Lease amend Part I,
Sections 1, 2, and 4 by replacing those sections with the following:
1. premises:
1.1 Location: 4909 Louise Drive, suites 108, 109,
110, 111, 112, 113, and 114 (front door at suite
110), Lower Allen Township, County of
Cumberland, Mechanicsburg, Pennsylvania 17055
1.2 Tenant's Rentable square Footage: 6,815 square
feet (Includes Tenant's Pro~rata share of common
area)
1.3 Building Rentable Square Footage: 35,746
square feet
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2. Improvements:
2.1 () Premises leased with existing improvements.
2.2 (X) Improvements by Landlord to be completed
in Expansion Premises for occupancy on or before
August 1, 1991.
4. Rent:
4.1 Minimum Rent: $1,536,870.00
4.2 Monthly Installment:
August 1, 1990 through January 3l, 1991 -$2,200
February 1, 1991 through December 31, 1991-$4,620
January 1, 1992 through July 31, ~5 - $5,250
August 1, 1995 through July 31, 2000 - $5,850
August 1, 2000 through July 31, 2005 - $6,870
August 1, 2005 through July 31, 2010 - $8,065
4.3 Additional Rent: All annual operating costs
over $0.00 per square foot as more fully describe
in section 4.2 of Part II
4.2 Security Deposit: $4,375.00
IN WITNESS WHEREOF the parties, inten~~ to be legally bo
this Amendment as of the I~ day of -\-ebru[l~
, 1991.
LANCASTER DEVELOPMENT
By:
NORRIS EDUCAT ONAL SERVICES,
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"Tenant"
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A " END " E N T
#2 TO
THE
LEASE
Relating to:
AGREEMENT made this dLI~ day of Ql..clLY .1991, between
LANCASTER DEVELOPMENT COMPANY. ("Landlord").. and NORRIS ED~ION S~RVICES.. ('Tenant").
BAC~GROUND
A. Tenant and landlord entered into a lease dated September 28, 1989, wherein Tenant
leased 6,000 square feet and an Additional Space Amendment dated February 18, 1991. wherein Tenant Leased
815 additional square feet of 4909 Louise Drive, Suites 108 - 114, (the -Building-), Mechanicsburg,
Pennsylvania 17055. The aforesaid lease is herein referred to as the -lease-.
~i$ MUtually agreed between Lancaster Development Company, -Landlord- and Norris Education
Services, ,-Tenant-, that Tenant will cont:inue to lease the above referenced Premises under tne same terms
and conditions of the original lease between Landlord and Tenant.
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The parties to the above referenced lease amend Part I. by replacing those sections witn the following:
"
4. Rent:
4.1 Minimum Rent: $1,506.114.00
4.2 Honthly Installment: June 17, 1991 through June 3D, 1991 - $4,914.00 - prorated*
July 1, 1991 through November 3D, 1991 - $4.620.00*
*(No Base Rent due on the additional 815 square feet.)
December 1. 1991 through July 31, 1995 - $5,250.00
August 1. 1995 through July 31, 2000 - $5.850.00
August 1, 2000 through July 31. 2005 - $6,870.00
August 1, 2005 through July 31, 2010 - $8.06~
IN WITNESS WHEREOF, the Landlord and, Ae:' en~~~\; intending to hegal~'y bound, have si~ned this
Amendment to Part I of the Lease as of;;;l::i day of \.. ~) w 0- _. > .1991.
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LANCASTER DEVELOPMENT COM
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AMENDMENT 113 TO THE LEASE
Relating to: 4909 Louise Drive, Suites 108-114
Mechanicsburg, Pennsylvania 17055
AGREEllENT made thiS~ay of ~'\, 1992, between LAHCASTER DEVELOPMENT COIlPANY,
("landlord"), and NORRIS EDUCATIONAL SERVICES, INC., (1ITenant").
BACKGROUIID
A. Tenant and landlord entered into a Lease dated September 28, 1989 wherein Tenant leased 6,000
square feet ,at 4909 Louise Drive, sui'tes 108-'13, Mechanicsburg, Pennsylvania.
B. Tenant and landtOf"o ente~ into a Lease Amendment on February 18, 1991 for the purpose of adding
an additTonal 815 square feet (Suite 114) to said space, such that Premises total 6,815 square feet.
C. Tenant and landlord entered into a Lease Amendment #2 on July 24, 1991 for the purpose of giving
Tenant access to the additional space approximately six weeks earlier than agreed previously.
D. At this date, Tenant isi602~, 32l.f... 3( in arrears on his account, with said amOunt inclusive
of past due rent, additional rent and late fees.
E. In consideration of the revisions to the rental payments as expressed herein in the amended
Section 4 below, which is expected to result in greater rental income to Landlord in the future than
previously bargained for under the lease as previously amended, Landlord hereby forgives_and exonerates
Tenant from responsibility to pay the amount referenced in Paragraph 0 above as an.arrearage in Tenant's
account.
It is mutually agreed by Landlord and Tenant that Tenant will continue to lease the above referenced
space uoder the same terms and conditions of the original lease as amended except for as further amended
below.
The parties to the above referenced lease do hereby amend Part I, Section 4 by replacing those
section$ with the following:
4. Rent:
4.1 Minimum Rent: $1,144,000
4.2 Monthly Installment: April 1, 1992 to July 31, 2010
The monthly rent installment shall be determined as the greater of Five Thousand Two Hundred
Dollars ($5,200.00) or twenty-one 'and one.half percent (21.57.) of the revenue generated from
activities on the Premises for the month ending approximately thirty (30) days before the due
date of the mont~ly rent ;nstaltment~ Each said monthly rent installment shall be accompanied
by a detailed revenue report which shall provide a basis for computation of the monthly rent
installment on a percentage ~sis.
4.3 Additional Rent: None dUe. Additional rent otherwise due is now considered to be included
in the monthly rent installment.
4.4 Security Deposit: $4,375 (previously paid by Tenant)
4.5 Audit: landlord hereby receives the right to audit Tenant's financial and enrollment
records for the purpose of verifying the accuracy of Tenant's clailDS concerning revenue, which
materially affect Landlord because rent is due as a percentage or revenue. Landlord's right
of inspection is not intended to relieve Tenant of the duty to maintain accurate records and
report accurate revenue receipts monthly to Landlord with the submission of the monthly rent
installment. landlord shall pay for the cost of said audit unless audit reveals that Tenant
has erred or otherwise understated actual revenues by more than one-half of one percent (.5'/')
in which case Tenant shall pay for the reasonable costs associated with said audit.
Additionally, Tenant shall be responsible to pay forty-three (43~) of the understated revenue
as past due rent; said amount to be due immediately upon delll80d by landlord.
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IN WITNESS WHEREOF, the LandLord and Tenant, intending to' be Legally bound, have signed this Amendment
to Part I of the Lease as of the l~rday of f'fo,-c"'- ,1992.
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TO
THE
LEASE
AGREEIIENT made this /3 ~ day of (\ / tJ, , /
DEVELOPMENT COMPANY, (lILandlord"), and NORRIS EDUCATIO~ INC.,
, 1994, between LANCASTER
(IITenantll) .
BACKGROUND
A. Tenant and Landlord entered into a lease dated September 20, 1989 wherein Tenant leased 6,000
square feet of 4909 Louise Drive, Suites 108.113, Hechanicsburg, Pennsylvania. The aforesaid lease is
herein referred to as the "Lease".
B. Tenant and landlord entered into a Lease Amendment o~ February 18, 1991 for the purpose of
adding an additional 815 square feet (Suite 114) to said space, such that Premises total 6,815 square
feet.
c. Tenant and Landlord entered into a Lease Amendment #2 on July 24, 1991 for the purpose of giVing
Tenant access to the additional space approximately six weeKs earlier than agreed previously.
D. Tenant and Landlord entered into a Lease Amendment #3 on March 18, 1992 for the purpose of
forgiving past debt of Tenant and converting to a percentage lease with a minimum monthly payment.
E. In consideration of Landlord's accommodations including forgiveness of debt, Tenant is Willing
to increase the minimum monthly payment from $5,200.00 to $6,000.00.
It is mutually agreed by Landlord and Tenant that Tenant will continue to lease the above
referenced space under the same terms and conditions of the original Lease as amended except for as
further amended below.
The parties to the above referenced Lease do hereby amend Part I, Section 4 by repLacing those
sections with the following:
4. Rent:
4.1 Minimum Rent: $1,146,000.00
4.2 Monthly Installment: September 11 1994 through July 101 2010
The monthLy rent installment shall be determined as the greater of Six Thoosand dolLars
($6,000.00) or twenty-one and one~half percent (21.~1.) of the revenue generated from
activities on the Premises for the month ending approximately thirty (30) days before the
due date of the monthly rent installment. Each said monthLy rent installment shall be
accompanied by a detailed revenue report which shall provide a basis for computation of the
monthly rent installment on a percentage basis.
LANCASTER DEVELOPHE
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IN WITNESS WHEREOF, the ~andlord and Tenant, intm to be lega
Amendment to Part I of the Lease as of this J..1 day of
By:
Title
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NORRIS EDUCATIONAL SERVICES, INC., lITenant"
By: ~~",-:/
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LANCASTER DEVELOPMENT
COMPANY
COURT OF COMMON PLEAS
CUMBERLAND COUNTY
Plaintiff
v.
NORRIS EDUCATIONAL SERVICES,
INC.
No,
Defendant.
AFFIDAVIT
COMMONWEALTH OF PENNSYLVANIA: SS,
COUNTY OF LANCASTER
Robin Zellers, being duly sworn according to law, deposes and says that he is a Regional
r I-IIC:tA J>t.F.oe..\.\."'~ tl..,.o. J ""ie,,~~1"' 1Z2:
Manager ofPlaintiff,tancaster Development Company, that he is authorized to make this
affidavit on behalf of Plaintiff; that the facts set forth in the foregoing Complaint for Confession
of Judgment are true and correct to the best of his knowledge, information and belief; and that
the Exhibits attached to the Complaint are true and correct copies of the originals.
LANCASTER DEVELOPMENT
COMPANY
fL~
Sworn to audsubscribed
before me this.o?O r:i day
Robin Zellers
Regional Manager
\oIIGo"- A>S<C>C.IA."e:>. \..'"f'i), Qsel\+ ~t
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Notary Public
My Commission Expires: N Notarial Seal
ora A Stames, Notary Public
Derry Twp., Dauphin County
My Commission Expires Aug. 14,2000
HBG\40359.1 Member, Pennsylvania Association of Notaries
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LANCASTER DEVELOPMENT
COMPANY
COURT OF COMMON PLEAS
CUMBERLAND COUNTY
Plaintiff
v.
NORRIS EDUCATIONAL SERVICES,
INC.
No,
Defendant.
AFFIDAVIT OF NON-RETAIL TRANSACTION
COMMONWEALTH OF PENNSYLVANIA: SS,
COUNTY OF LANCASTER
Allen C. Warshaw, Esquire, being duly sworn according to law, deposes and says he is
counsel for the Plaintiff, Lancaster Development Company, that he is duly authorized to make
this Affidavit; and that the transaction upon which this judgment is being entered did not arise
out of a retail installment sale contract or account.
t&- ( c; ---
Allen C. Warshaw, Esquire
Sworn to and subscribed
before me thisJOH day
of Jut l ,2000.
l;;A,;;t~
otary Public ~
My Commission Expires:
Notarial Seal
Nora A. Starnes, Notary Public
Derry Twp.. Dauphin County
:! ~,fl" r:""""'T1io::;sion F)(o;rI3S Aug. 14,2000
HBGl40359.1
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LANCASTER DEVELOPMENT
COMPANY
COURT OF COMMON PLEAS
CUMBERLAND COUNTY
Plaintiff
v.
NORRIS EDUCATIONAL SERVICES,
INC.
No.
Defendant.
CERTIFICATE OF RESIDENCE
I hereby certifY that the following is the address of the Defendant, Norris Educational
Services, Inc.:
206 Bridge Street
New Cumberland, P A 17070
Respectfully submitted,
Dated: 1/20/00
~(v-
Allen C. Warshaw, Esquire
AttorneyldNo,17145
Duane, Morris & Heckscher LLP
305 North Front Street, 5th Floor
P.O. Box 1003
Harrlsburg,PA 17108-1003
(717) 237-5500
Attorneys for Plaintiff Lancaster
Development Company
Sworn to and subscribed
before me thisot4 ft. day
of JULY , 2000.
~~~
otary Public
My Commission Expires:
Notarial Seal
Nora A. Starnes, Notary Public
Derry Twp., Dauphin County
My Commission Expires Aug. 14, 2000
Member, Pennsylvania Association of Notc":ries
HBG\40359.1
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LANCASTER DEVELOPMENT
COMPANY
COURT OF COMMON PLEAS
CUMBERLAND COUNTY
Plaintiff
v.
NORRIS EDUCATIONAL SERVICES,
INC.
No.
Defendant.
AFFIDAVIT OF BUSINESS TRANSACTION
COMMONWEALTH OF PENNSYLVANIA: SS.
COUNTY OF LANCASTER
Allen C. Warshaw, Esquire, being duly sworn according to law, deposes and says he is
counsel for the Plaintiff, Lancaster Development Company, that he is duly authorized to make
this Affidavit; and that the transaction upon which this judgment is being entered is a business
transaction and not a consumer transaction.
{}~~
Allen C. Warshaw, Esquire
Sworn to and subscribed
before me thi~+i, day
of JV'L~( ,2000.
~J'~~
N tary Public
My Commission Expires:
Notarial Seal
Nora A. Starnes, Notary Public
Derry Twp., Dauphin County
My Commission Expires Aug. 14,2000
Member, Pennsylvama Association of Notaries
HBG\40359.1
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LANCASTER DEVELOPMENT
COMPANY
COURT OF CONrnJON PLEAS
CUMBERLAND COUNTY
Plaintiff
v,
NORRIS EDUCATIONAL SERVICES,
INe.
No.
Defendant.
AFFIDAVIT OF NON-MILITARY SERVICE
CONrnJONWEALTH OF PENNSYLVANIA: SS.
COUNTY OF LANCASTER
Allen C. Warshaw, Esquire, being duly sworn according to law, deposes and says he is
counsel for High Properties, and that to the best of his knowledge, information, and belief,
Defendant is not a member of the Armed Forces of the United States nor any of its allies or
auxiliaries thereof, and is not entitled to the benefits of the Soldiers' and Sailors' Relief Act.
()~~~
Allen C. Warshaw, Esquire
Sworn to and subscribed
before me this02I1+A day
of eJ I/L-y ,2000.
~e~
My Commission Expires:
Notarial Seai
Nora A. Starnes. Notary PubHc
Derry Twp., Dauphin County
My Commission Expires Aug. 14, 2000
Member, Pennsylvania Association of Notaries
HBG140359.1
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LANCASTER DEVELOPMENT
COMPANY,
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYL VANIA
Plaintiff
v.
: No. 00-5134
NORRIS EDUCATIONAL SERVICES,
INC.,
Defendant
PROPOSED ORDER
AND NOW, this
day of
, 2000, upon consideration of the Petition to Strike
Off or in the Alternative Open Confessed Judgment, IT IS HEREBY ORDERED THAT:
(1) a rule is entered upon Respondent/Plaintiff, Lancaster Development Company, to
show cause why the judgment by confession entered in the above-captioned matter should not be
stricken or in the alternative opened;
(2) the Respondent/Plaintiff shall file an answer to the Petition within twenty (20) days
after service;
(3) all proceedings in the above-captioned matter are stayed pending final disposition of
the Petition to Strike Off or in the Alternative Open Confessed Judgment.
BY THE COURT:
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LANCASTER DEVELOPMENT
COMPANY,
: IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
Plaintiff
v,
: No. 00-5134
NORRIS EDUCATIONAL SERVICES,
INC.,
Defendant
PETITION TO STRIKE OFF OR IN THE ALTERNATIVE
OPEN CONFESSED JUDGMENT
AND NOW comes Petitioner/Defendant, Norris Educational Services, Inc., by and through
its attorneys, Shumaker Williams, P ,C., and files this Petition to Strike Off or in the alternative Open
Confessed Judgment pursuant to Pa.R.Civ.P. 2959 and in support thereof avers the following:
1. PetitionerlDefendant, Norris Educational Services, Inc, (hereinafter "Norris"), is a
Pennsylvania corporation with its principal place of business at P.O. Box P, New Cumberland,
Pennsylvania 17070.
2, Respondent/Plaintiff, Lancaster Development Company (hereinafter "Lancaster
Development"), is a Pennsylvania partnership having its principal place of business at 1853
William Penn Way, P,O, Box 1008, Lancaster, Pennsylvania 17605-0008,
3. On July 21,2000, Lancaster Development filed a Notice, Confession of Judgment
for Money in the amount of$852,669,63 plus attorney fees and costs, and Complaint for
Confession of Judgment for Money Judgment (hereinafter "Complaint") in the above-captioned
case. A true and correct copy of the Notice, Confession of Judgment, and Complaint are attached
hereto, respectively, as Exhibit 1, 2, and 3.
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4. On or about September 28, 1989, Lancaster Development entered into an
Office/Flex Building Lease Agreement (hereinafter "Lease") with Norris whereby Norris leased
the premises known as 4909 Louise Drive, Suites 108, 109, 110, III, 112, and 113 from
Lancaster Development to operate a day care facility. A true and correct copy of the Lease is
attached to the Complaint as Exhibit A.
5. The term of the Lease was twenty years beginning August I, 1990 and ending July
31,2010, See Exhibit A of the Complaint, p, 3.
6. On or about February 18, 1991, Lancaster Development and Norris entered into a
Lease Amendment whereby Norris agreed to rent additional space known as 4909 Louise Drive,
Suite 114 from Lancaster Development See Exhibit A of the Complaint, Amendment to the
Lease.
7. On or about July 24,1991, Lancaster Development and Norris entered into a
second Lease Amendment whereby Norris was able to access additional space earlier than
previously agreed, See Exhibit A of the Complaint, Amendment #2 to the Lease.
8, On or about March 18, 1992, Lancaster Development and Norris entered into a
third Lease Amendment whereby Lancaster Development adjusted the amount of monthly rent
due under the Lease to "the greater of Five Thousand Two Hundred Dollars ($5,200.00) or
twenty-one and one-half percent (21.5%) of the revenue generated from activities on the Premise
for the month ending approximately thirty (30) days before the due date of the monthly rent
installment" See Exhibit A of the Complaint, Amendment #3 to the Lease.
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9. On or about July 13, 1994, Lancaster Development and Norris entered into a
fourth Lease Amendment whereby Norris agreed to increase the monthly rent to "the greater of
Six Thousand Dollars ($6,000,00) or twenty-one and one-half percent (21.5%) of the revenue
generated from activities on the Premise for the month ending approximately thirty (30) days
before the due date of the monthly rent installment." See Exhibit A of the Complaint,
Amendment #4 to the Lease.
1. PETITION TO STRIKE OFF CONFESSED JUDGMENT
10. The Lease contains a warrant of attorney to confess judgment for money damages
provision, which provides that "[u]pon Default the Tenant hereby empowers any Prothonotary or
any Attorney of any Court of Record in Pennsylvania to appear and confess judgment for any and
all such rental, damages, additional rental or charges together with reasonable attorney's fees."
See Exhibit A ofthe Complaint, pp. 24-25.
11. The terms "rental" and "damages" are not defmed in the Lease. See Exhibit A of
the Complaint.
12. The term "additional rent" is defmed as "the amonnt by which its pro-rata share of
expenses (as hereinafter defined) for the operation and maintenance of or with respect to the
building of which the Premises are a part." "Expenses" are defined as "real estate taxes and
assessments; insurance premiums; costs for common area repairs and maintenance; snow
removal and law maintenance; costs of furnishing water, sewer, gas, fuel, electricity and other
utility services. . . ." See Exhibit A of the Complaint, p. 9.
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13. A warrant of attorney authorizing the confession and entry of judgment must be
strictly construed and exercised in strict accordance with its terms. Co1onv Fed. Say. & Loan
Ass'n v. Beaver Valley Eng'g SUDD1ies Co., 238 Pa, Super. 540, _,361 A,2d 343,346-47
(1976),
14.
The power to confess judgment contained in a lease must be construed most
strictly against the landlord. Park-Main Co. of Penn., rnc, v. Favette Nan Bank & Trust Co, of
Uniontown, 397 Pa, 75, _,152 A.2d 714, 716 (1959).
15. If a confessed judgment includes an item not authorized by the warrant, the
judgment is void in its entirety and must be stricken. Dollar Bank. Fed. Say, Bank v. Northwood
Cheese Co.. Inc., 431 Pa, Super. 541, _, 637 A,2d 309,314, aDDea1 denied, 539 Pa, 692, 653
A,2d 1231 (1994); Co1onv Fed. Say, & Loan Ass'n v. Beaver Valley Eng'g SUDDlies Co., 238 Pa.
Super. 540, _, 361 A,2d 343,346-47 (1976).
16. Lancaster Development has confessed judgment for the following items: past due
rent and late charges, future rents, attorney fees, and costs of the suit. See Exhibit 3, ~ 13.
17, Norris did not authorize Lancaster Development to confess judgment against it for
interest and/or late charges, future rents, and costs of the suit in the Lease's warrant of attorney to
confess judgment for money damages provision, See Exhibit A of the Complaint, pp, 24-25,
4
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18. The Lease's warrant of attorney to confess judgment for money damages
provision only allows Lancaster Development to confess judgment for "rental, damages,
additional rental or charges together with reasonable attorney's fees." See Exhibit A of the
Complaint, pp, 24-25.
19. Therefore, Lancaster Development abused its authority to confess judgment
against Norris by including items in the total amount of the confessed judgment which were not
included in the Lease's warrant of attorney to confess judgment for money damages provision.
See Exhibit A of the Complaint, pp. 24-25,
20. In addition, ifthe judgment amount is grossly excessive, the judgment must be
stricken in its entirety. Dollar Bank. Fed. Sav. Bank v. Northwood Cheese Co.. Inc., 431 Pa.
Super. 541, _, 637 A.2d 309, 314, appeal denied, 539 Pa. 692, 653 A.2d 1231 (1994); Colonv
Fed, Sav. & Loan Ass'n v, Beaver Vallev Eng'g Supplies Co., 238 Pa. Super. 540,_, 361 A.2d
343,346-47 (1976),
21. The total amount of the confessed judgment in the above-captioned matter is
grossly excessive because the judgment includes items not authorized by the Lease's warrant of
attorney to confess judgment for money damages provision.
5
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22, For instance, the following unauthorized amounts are included in the total amount
of the confessed judgment in the above-captioned matter: interest and/or late charges in the
amount of $132,669.631, future rents in the amount of $720,000.00, and costs of the suit, which
amount has not been determined by Lancaster Development. See Exhibit 2 and Exhibit 3, ~ 13.
23. Therefore, Lancaster Development does not have the authority to confess
judgment in the excessive amount of $852,669,63 plus attorney fees and costs ofthe suit as
required by Pa.R.Civ.P. 2952(a)(8), and the confession judgment in the above-captioned matter is
invalid and should be stricken, See Exhibit A of the Complaint, pp. 24-25.
24, Neither the Complaint nor the Confession of Judgment contains an itemized
computation of the amount due at the time of filing the Complaint as required by Pa.R.Civ.P.
2955(a) and Pa,R.Civ.P. 2962.
25. Pa.R.Civ.P. 2955(a) provides that the plaintiff must file a confession of judgment
substantially in the form provided by Pa.R.Civ,P, 2962. Pa.R.Civ.P, 2955(a),
26, Pa.R.Civ,P, 2962 provides that items authorized by the warrant are to be listed
with amounts incurred as of the date of filing the Complaint. Pa.R.Civ,P. 2962,
27. Lancaster Development did not state the amount of reasonable attorney fees or
costs of the suit incurred as of the date of filing the Complaint as required by Pa,R.Civ,P, 2962.
See Exhibit 2 and Exhibit 3, ~ 13.
1 The total amount of $132,669.63 includes past due rent and late charges, Lancaster Development did not
separate the amount of past due rent from late charges; therefore, one cannot ascertained from the Complaint or
Confession of Judgment the amount oflate charges and the amount of past due rent.
6
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28, In fact, on the face of the Confession of Judgment or Complaint the total amount
of the confessed judgment is unknown and one cannot determine how Lancaster Development
arrived at the total amount of $852,669.63 as the amount to confess judgment against Norris,
See Exhibit 2 and Exhibit 3, ~ 13.
29. Moreover, Lancaster Development included items in the Confession of Judgment
that it was not authorized to confess judgment upon, such as interest and/or late charges, future
rents, and costs of the suit. See Exhibit A of the Complaint, pp, 24-25, Exhibit 2, and Exhibit 3,
~ 13,
30. Therefore, the judgment by confession entered in the above-captioned matter in
the amount of $852,669.63 plus attorney's fees and costs should be stricken by reason of defects
appearing on the face of the record.
WHEREFORE, the Petitioner/Defendant, Norris Educational Services, Inc., respectfully
requests that this Court strike off or in the alternative open the judgment of confession filed by
Respondent/Plaintiff, Lancaster Development Company, in the above-captioned matter; issue a
rule against Respondent/Plaintiff, Lancaster Development Company, to show cause why the
judgment entered in the above-captioned matter should not be struck off or in the alternative
opened; and stay all proceedings pending the final disposition of the striking and/or opening of
the judgment by confession.
7
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II. PETITION TO OPEN CONFESSED JUDGMENT
31, A judgment entered in confession will only be opened when the person seeking to
have it opened acts promptly, alleges a meritorious defense, and presents sufficient evidence of
that defense to require submission of the issues to the jury. Dollar Bank. Fed. Sav, Bank v.
Northwood Cheese Co.. Inc" 431 Pa. Super, 541, _,637 A.2d 309,314, appeal denied, 539 Pa.
692,653 A.2d 1231 (1994).
32. The standard of sufficiency of the evidence which a court must employ to open a
confessed judgment "is that of the directed verdict-viewing all the evidence in the light most
favorable to the petitioner and accepting as true all evidence and proper inferences therefrom
supporting the defense while rejecting adverse allegations of the party obtaining the judgment."
Weitzman v. Ulan. 304 Pa, Super. 204, 209, 450 A.2d 173, 176 (1982),
33. This Petition has been promptly filed after service of the Complaint and
Confession of Judgment.
34. Norris' fust meritorious defense is that the Lease was orally modified and
terminated by both Lancaster Development and Norris.
35. A written contract may be orally modified despite a "no oral modification"
provision in the contract. See Carlos R. Leffler. Inc. v. Hutter, 696 A.2d 157, 161 (Pa. Super.
1997) .
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36. A subsequent oral modification of a contract must be supported by additional
consideration or reliance, See Barnhart. v. Dollar Rent A Car Svs.. Inc., 595 F.2d 914 (3d,
Cir.l979),
37. On November 19, 1996, Norris filed a voluntary petition in the United States
Bankruptcy Court in the Middle District of Pennsylvania.
38. Under the Lease, instituting a proceeding under the Bankruptcy Act is an event of
default. See Exhibit A of the Complaint, p. 23.
39, Lancaster Development did not terminate the Lease based on Norris' bankruptcy
filing.
40. Norris owed Lancaster Development past due rent.
41. A dispute originated between Lancaster Development and Norris regarding the
amount of rent and late charges due under the Lease.
42, On or about January 10, 2000, Timothy Norris, James E. Reid, Esq., Robin
Zellers, and Allen C. Warsaw, Esq, met to discuss the amount of rent and late charges due under
the Lease.
9
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40, At this meeting, Lancaster Development informed Norris that it did not want to
continue the Lease and an oral agreement was reached between Lancaster Development and
Norris whereby the Lease would be terminated effective immediately and Norris would be
obligated to vacate the leased premise on or before June 30, 2000, allow Lancaster Development
to show the leased premise to potential tenants, not speak with potential tenants about why it was
leaving the leased premise, and pay monthly rent in the amount of $4,500.00 per month,
41. Both Lancaster Development and Norris tried to negotiate a Settlement and
Mutual Release Agreement whereby Norris would pay Lancaster Development a lump sum
payment as full satisfaction of all claims Lancaster Development had against Norris under the
Lease,
42, Negotiations between Lancaster Development and Norris ended because neither
party could agree on the amount of money Norris owed Lancaster Development for rent and late
charges due under the Lease,
43. Both parties relied upon the oral agreement and acted as if the Lease was
terminated,
44, For instance, Lancaster Development showed the leased premise to potential new
tenants throughout May and June, 2000.
45. Norris did not speak to potential new tenants about why it was vacating the leased
prermse,
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46. Also, in accordance with state mandated notification requirements of the
Department of Public Welfare (hereinafter "Department"), Norris notified the Department on or
about May _, 2000, that it would vacate the leased premise no later than June 30, 2000,
47. Norris vacated the leased premise on June 30, 2000, because the Lease was
terminated and it was only authorized by Lancaster Development to occupy the leased premise
until June 30, 2000,
48, Norris fulfilled its obligations under the oral agreement to amicably terminate the
Lease by vacating the leased premise on June 30, 2000, allowing Lancaster Development to show
the leased premise to potential new tenants, and not speaking to potential new tenants about why
it was vacating the leased premise.
49. Consequently, the Lease was orally modified and terminated by both Lancaster
Development and Norris.
50, Upon termination of the Lease, the interest provision in the Lease, which
provides that interest accrues from the date the money is due at the rate of one and one-half
percent (1 Y2 %) per month until paid is not enforceable and Lancaster Development is not
entitled to collect late fees pursuant to the Lease. See Exhibit A of the Complaint, p, 25.
51, In contract matters where the parties have not specified another rate, the legal rate
of interest is simple interest and may not be compounded, Carroll v, City of Philadelphia, Bd, of
Pensions and Retirement MuniciDal Pension Fund, 735 A.2d 141,146-47 (Pa. Commw. 1999).
52, The legal rate of interest is six percent (6%) per annum. 41 P.S. ~ 201.
11
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53, The law does not favor compound interest and the general rule is that in absence
of contract or statute authorizing it, compound interest is not allowed to be computed on a debt
Murrav v, Prudential Ins. Co, of America, 144 Pa. Super. 178, 18 A.2d 820 (1941).
54. As a result, Lancaster Development is only entitled to collect simple interest at the
legal interest rate of six percent (6%) per annum,
55. Norris' second meritorious defense is that the warrant of attorney to confess
judgment for money damages provision in the Lease does not authorize Lancaster Development
to confess judgment in the amount of $852,669.63 plus attorney fees and costs of the suit for
several reasons. See Exhibit A of the Complaint, pp, 24-25.
56. First, the Lease contains a warrant of attorney to confess judgment for money
damages provision, which provides that "[u]pon Default the Tenant hereby empowers any
Prothonotary or any Attorney of any Court of Record in Pennsylvania to appear and confess
judgment for any and all such rental, damages, additional rental or charges together with
reasonable attorney's fees," See Exhibit A of the Complaint, pp. 24-25.
57. The right to confess judgment is limited by the warrant of attorney to confess
judgment for money damages provision contained in the Lease, which must be strictly construed
against the landlord. Park-Main Co. of Penn.. Inc, v. Favette Nan Bank & Trust Co. of
Uniontown, 397 Pa. 75, _,152 A.2d 714, 716 (1959),
58. Lancaster Development has confessed judgment for the following items: past due
rent and late charges, future rents, attorney fees, and costs of the suit. See Exhibit 3, '\\ 13.
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59, Norris did not authorize Lancaster Development to confess judgment against it for
interest and/or late charges, future rents, and costs of the suit in the Lease's warrant of attorney to
confess judgment for money damages provision, See Exhibit A of the Complaint, pp. 24-25.
60, The Lease's warrant of attorney to confess judgment for money damages
provision only allows Lancaster Development to confess judgment for "rental, damages,
additional rental or charges together with reasonable attorney's fees." See Exhibit A ofthe
Complaint, pp. 24-25,
61. Therefore, Lancaster Development abused its authority to confess judgment as
provided in the Lease and the judgment in the amount of $852,669.63 plus attorney fees and
costs of the suit under the warrant of attorney to confess judgment for money damages provision
in the Lease is invalid. See Exhibit A of the Complaint, pp. 24-25,
62. Second, Lancaster Development's authority to confess judgment continues
"through the original term of this Lease and for any renewals, and following termination of the
Lease, for any period for which the tenant has possession of the Demised Premise," See Exhibit
A of the Complaint, p, 25,
63. On or about January 10,2000, Lancaster Development and Norris entered into an
oral agreement to terminate the Lease.
64. Norris fulfilled its obligations under the oral agreement to amicably terminate the
Lease by vacating the leased premise on June 30, 2000,
13
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65. Lancaster Development did not confess judgment against Norris until July 21,
2000,
66. Therefore, Lancaster Development did not have the authority to confess judgment
against Norris on July 21, 2000 under the Lease because the Lease was terminated and Norris
was not in possession of the leased premise.
67, As a result, Lancaster Development lacks authority to confess judgment against
Norris based on the Lease's warrant of attorney to confess judgment for money damages
provision.
68. Norris' third meritorious defense is that the entry of judgment in the amount of
$132,669.63 for past due rent and late charges and $720,000.00 for future rents is a gross
overstatement ofthe amount due under the Lease.
69. When judgment as entered is excessive in amount, the court must modify the
judgment and cause proper judgment to be entered, Dollar Bank. Fed. Sav. Bank v. Nocthwood
Cheese Co.. Inc., 431 Pa. Super. 541, _,637 A.2d 309, 314, appeal denied, 539 Pa, 692,653
A.2d 1231 (1994); Colonv Fed. Sav. & Loan Ass'n v. Beaver Valley Eng'g Supplies Co" 238 Pa.
Super. 540, _, 361 A.2d 343, 347 (1976),
70. Where a dispute as to how much money is due under a Lease, it is appropriate to
open the judgment to determine the amount of rent that is actually due under the Lease. See Fox
v. Seigel, 73 Pa, D, & C.2d 623 (York Cty. 1975),
14
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71. The following amounts are disputed by Norris: $132,669,63 for past due rent and
late charges, $720,000.00 for future rents, and the undetermined amount of costs of the suit.
72. The amount of rent due under the Lease and late charges cannot be calculated
based on the information contained in the Complaint or Confession of Judgment See Exhibit 2
and Exhibit 3, ~ 13.
73. For example, Lancaster Development claims Norris has failed to make payment of
rent and late charges in the amount of$114,669.93. See Exhibit 3, ~ 7.
74, However, Lancaster Development has failed to allege in the Complaint when
Norris stopped making monthly payments under the Lease and how it calculated late charges.
75. Therefore, this Court must open the confessed judgment filed in the above-
captioned matter to determine the amount due for past rent and reasonable attorney fees.
76. Norris' fourth meritorious defense is that Lancaster Development's confessed
judgment in the amount of $720,000,00 for future rent is a penalty damage that is unlawful and
unreasonable because Lancaster Development possesses the leased premise not Norris.
77, The Lease contained an acceleration of rent provision, which states that upon a
default, Lancaster Development may "[d]eclare the entire rent for the balance of the Term
immediately due and payable." See Exhibit A of the Complaint, p. 23.
15
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78, A tenant "is not liable for rent after termination, even though prior to termination
the lessee had been in default, even though prior to termination the lessee had been in default,
even though the lease contained an acceleration clause and even though the lessor had taken
advantage of the acceleration clause and taken action to collect the rent for the entire term." R.
Whitson Carter. Ltd. v, Mored. Inc., 12 Pa. D. & C.3d 569 (Berks Cty. 1979).
79, A landlord can either accelerate for future rent accruing under the lease or eject
the tenant, but not both. Pierce v. Hoffstot, 211 Pa, Super. 380, _, 236 A.2d 828, 830 (1967).
80. "It is a basic tenet of our system of civil justice that a plaintiff may not obtain a
double recovery for a single wrong," Homart Dev. Co. v. Sgrenci, 443 Pa. Super. 538, _,662
A.2d 1092, 11 00 (1995).
81. Yet, double recovery is precisely what Lancaster Development is attempting to do
in the above-captioned case by entering confessed judgment in the amount of $720,000.00 for
future rents, which includes rent due from July 2000 until July 31, 2010, and remaining in
possession ofthe leased premise.
82, Lancaster Development cannot terminate the Lease and hold Norris responsible
for rent accruing under the Lease as if the Lease was in full force and effect to the end of the
term. See Greco v. Woodlawn Furniture Co" 99 Pa, Super. 290, 291-93 (1930),
83, Lancaster Development cannot collect double remedies insofar as they are
conflicting or antagonistic, ie, recover both possession of the leased premise and rent for the
balance of the lease. See id.
16
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84. In Park-Main Co. of Penn.. Inc. v. Favette Nat'l Bank & Trust Co, of Union town,
the court held that a long term lease that provides for acceleration of rent for the entire term of
default, and where the landlord nevertheless retains the right of re-entry, the sum to be realized
by the acceleration clause is so disproportionate to actual damages as to amount to a "penalty"
that the courts must refuse to give binding force and effect. 397 Pa. 75, _,152 A.2d 714, 717
(1959),
85,
As a result, Lancaster Development's confessed judgment in the amount of
$720,000,00 for future rents is a double recovery award that this Court must not enforce.
86. Norris' fifth meritorious defense is that Lancaster Development misrepresented
several facts in order to encourage Norris to sign the Lease,
87. First, Lancaster Development promised Norris that it would be the only day care
facility located in the Rossmoyne Center.
88, However, Norris is not the only day care facility operating at the Rossmoyne
Center.
89. Second, in 1988, Lancaster Development promised Norris that approximately
5,000 employees would occupy the Rossmoyne Center within three years.
90. Since 1988, there has never been 5,000 employees located at the Rossmoyne
Center,
17
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91. Therefore, the judgment by confession entered in the above-captioned matter in
the amount of $852,669.63 plus attorney's fees and costs should be opened because Norris
promptly filed this Petition, alleged several meritorious defenses, and provided sufficient
evidence of such defenses.
WHEREFORE, the Petitioner/Defendant, Norris Educational Services, Inc., respectfully
requests that this Court strike off or in the alternative open the judgment of confession filed by
Respondent/Plaintiff, Lancaster Development Company, in the above-captioned matter; issue a
rule against Respondent/Plaintiff, Lancaster Development Company, to show cause why the
judgment entered in the above-captioned matter should not be struck off or in the alternative
opened; and stay all proceedings pending the final disposition of the striking and/or opening of
the judgment by confession,
SHUMAKER WILLIAMS, P.C.
Dated: ?/f~
By
~O,~
Laurence W, Dague LD, #19715
Melissa A. Swauger, LD. #82382
P.O. Box 88
Harrisburg, PA 17108
(717) 763-1121
Attorneys for Defendant Norris Educational
Services, Inc.
:121709
18
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LANCASTER DEVELOPMENT
COMPANY
COURT OF COMMON PLEAS
CUMBERLAND COUNTY
Plaintiff
v.
NORRIS EDUCATIONAL SERVICES,
INC.
No. OC> - $'IJ'I
G()~(l~
Defendant.
NOTICE
You are hereby notified that on July 21, 2000, judgment by confession was entered
against you in the above-captioned case.
YOU SHOULD TAKE TIllS PAPER TO YOUR LAWYER AT ONCE. IF YOU
DO NOT HAVE A LAWYER OR CANNOT AFFORD ONE, GO TO OR TELEPHONE
THE OFFICE SET FORTH BELOW TO FIND OUT WHERE YOU CAN GET LEGAL
HELP.
.cu......l ,\d.nillillti:atef ~b . C::.. ~';vLl)ssoa~:t~
4th FluuL, CWllbt:dand Loumy Cowd>uu~" c:2. J..ib~ ~c..
Carlisle, P A 17013
.(717) 219 662Q .:1.49 ~J I!-!(. C'-.
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A VISO
Por este medio sea avisado que en el July 21,2000, un fallo por admision fue
registrado contra usted del caso antes escrito.
LLEVE ESTA DEMANDA A UN ABODAGO IMMEDIATAMENTE. SI NO
TIENE ABOGADO 0 SI NO TIENE EL DINERO SUFICENTE DE PAGAR TAL
SERVICIO, VA Y A EN PERSONA 0 LLAME POR TELEFONO A LA OFICINA CUY A
DIRECCION SE ENCUENTRA ESCRlTA ABAJO PARA AVERlGUAR DONDE SE
PUEDE CONSEGUIR ASISTENCIA LEGAL.
Court Administrator
4th Floor, Cumberland County Courthouse
Carlisle, PA 17013
(717) 240-6620
Date:
Prothonotary
HBGI40359.1
."
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LANCASTER DEVELOPMENT
COMPANY
COURT OF COMMON PLEAS
CUMBERLAND COUNTY
Plaintiff
v.
NORRIS EDUCATIONAL SERVICES,
INC,
No.
Defendant.
~NTRY OF APPEARANCE AND CONFESSION OF JUDGMENT FOR MONEY
TO TIIE PROTHONOTARY:
Kindly enter my appearance for and on behalf of the Defendant, Norris Educational
Services, Inc.
Pursuant to the warrant of attorney contained in the Office Lease Agreement, a true and
correct copy of which is attached as Plaintiffs Exhibit A to the Complaint in Confession of
Judgment for Money filed in this action, I appear for the above named Defendants and confess
judgment in favor of the Plaintiffs and against the Defendants as follows:
Office Lease Agreement:
$852,669.63
Attorney's Fees:
To Be Determined
Costs of Suit:
To Be Determined
Total:
$852,669,63
Plus Attorney's Fees and
Costs of Suit
~vIL-- ( 1/
Allen C. Warshaw
Attorney for Plaintiff
Date: 7/20Joo
HBG\40359.1
,
<-~
LANCASTER DEVELOPMENT
COMPANY
COURT OF COMMON PLEAS
CUMBERLAND COUNTY
Plaintiff
v,
NORRIS EDUCATIONAL SERVICES,
INC,
No.
Defendant.
COMPLAINT FOR CONFESSION OF JUDGMENT
FOR MONEY JUDGMENT
This Complaint is filed pursuant to Pennsylvania Rules of Civil Procedure 2950, et sea.
1, , Plaintiff is Lancaster Development Company ("Lancaster Development"), a
Pennsylvania partnership having its principal place of business at 1853 William Penn Way, P,O,
Box 1008, Lancaster, Pennsylvania 17605-0008.
2. Defendant is Norris Educational Services, mc, ("Norris"), a Pennsylvania
corporation with its principal place of business at 4909 Louise Drive, Mechanicsburg, P A 17055,
3. On September 28, 1989, plaintiff Lancaster Development entered into an Office
Lease Agreement (hereinafter the "Lease") with N:orris. Subsequently, Lancaster Development
and Norris entered into several amendments to the Office Lease Agreement. A true and correct
copy of that Lease Agreement and the amendments thereto is attached hereto as Exhibit "A."
4. The Office Lease Agreement contains a warrant of attorney to confess judgment.
5, The Office Lease Agreement requires that rent be paid in equal monthly
installments,
6, The Office Lease Agreement provides for late charges in the event that rent is not
paid in a timely fashion.
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7, As of June 28, 2000, Norris had failed to make payment of rent and late charges
in the amount of$114,669,63,
'.
8. On June 28, 2000, Lancaster Development made written demand upon Norris that
it make full payment of all rent due under the Office Lease Agreement within ten (10) days of
the date of the letter,
9. As of this date, Norris has failed to make payment of$114,669,63 due under the
Office Lease Agreement.
10, Defendant Norris is in default under the Office Lease Agreement by reason of the
failure to pay rent for a period of more than ten (10) days.
II. Upon Defendant Norris' default under the Office Lease Agreement by reason of
the failure to pay rent for a period of more than ten (10) days, Lancaster Development is entitled
to and hereby does declare the entire rent for the balance of the term immediately due and
payable,
12. The amount due under the full term of the lease is $720,000.00.
13. As of July 20, 2000, the following amounts are due under the Office Lease
Agreement as amended:
Past due Rent and Late Charges:
$132,669.63
Future Rents
$720,000.00
Attorney's Fees:
To Be Determined
Costs of Suit:
To Be Determined
Total Due:
$852,669,63
Plus Attorney's Fees
and Costs of Suit
HBG\40359.1
. ,
14, The Office Lease Agreement has not been assigned.
15. Judgment for Money has not been previously entered on the Office Lease
Agreement.
16. The Office Lease Agreement is less than twenty years old.
17, The Office Lease Agreement represents part of a business transaction and not a
loan for personal, household, or consumer purposes,-
18. Judgment is demanded as authorized in the warrant of attorney contained in the
Office Lease Agreement,
19, Judgment is not being entered against a natural person in connection with a
residential lease,
WHEREFORE, Lancaster Development demands judgment in its favor and against
Norris in the sum of $852,669.63 plus attorneys fees and costs as authorized by the warrant of
attorney appearing in the Office Lease Agreement, together with such other relief as this Court
deems appropriate.
Respectfully submitted,
Date: 1/20100
()J~ ( j/
Allen C, Warshaw, Esquire
Attorney Id No. 17145
Duane, Morris & Heckscher LLP
305 North Front Street, 5th Floor
P.O. Box 1003
Harrisburg, P A 171 08-1 003
(717) 237-5500
Attorneys for Lancaster Development
Company
HBG140359.1
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SOL000807892
OFF ICE / F LEX B U I L DIN G
LEA S E
AGREEMENT
Dated <Ser.f4",iJe; 2.B 1/189
Between
LANCASTER DEVELOPMENT COMPANY
"Landlord"
and
NORRIS EDUCATIONAL SERVICES, INC.
"Tenant"
Relating to
4909 Louise Drive
suites 108, 109, 110, 111, 112, 113
Mecha~icsburg, Pennsylvania 17055
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OFF ICE
LEASE
AGREEMENT
Part I
MADE and executed this ;28f-. day Of~~W , ~989.
By and between LANCASTER DEVELOPMENT COMPANY, a partnership
having its principal place of business at ~853 William Penn Way,
P.O. Box ~0008, Lancaster, Pennsylvania ~7605-0008, herein called
"Landlord"; and NORRIS EDUCATIONAL SERVICES, INC., a Pennsylvania
corporation, having its principal place of business at 206 Bridge
Street, P.O. Box P, New cumberland, Pennsylvania 17070, herein
called "Tenant".
Landlord does hereby lease unto Tenant the "Premises" at the
"Rent" for the "Term" for the "Permitted Use" upon and under the
Terms and Conditions set forth in this Part I and Part II
(collectively the "Lease") all as follows:
L Premises:
1.~ Location: 4909 Louise Drive, suites ~08, 109, 1~0,
~11, ~~2, ~~3, (Front door at suite l~OJ, Lower Allen
Township, County of Cumberland, Mechanicsburg,
Pennsylvania 17055
1.2 Tenant's Rentable Square Footage: 6,000 sq. ft.
(This figure includes Tenant's pro-rata share of
common area, is more or less accurate and based on
the attached Exhibit "A", and is not subject to final
meaurement), plus the exclusive use of the outside
play area. as shown on Exhibit "A".
1.3 Building Rentable Square Footage: 35,900 sq. ft.
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2. Improvements:
2.1 ( ) Premises leased with existing improvements.
2.2 (X Improvements by Landlord to be completed
occupancy by Auqust 1. 1990
3.
Term:
3.1
3.2
3.3
Number of Years: Twenty (20) Years
Term Begins: A~gust 1, 1990
Term Ends: July 31, 2010
4: Rent:
4.1 Minimum Rent: $1,360,680.00
4.2 Monthly Installment:
August 1, 1990 through January 31, 1991 - $2,200.00
February 1, 1991 through July 31, 1995 - $4,620.00
August 1, 1995 through July 31, 2000 - $5,150.00
August 1, 2000 through July 31, 2005 - $6,050.00
August 1, 2005 through July 31, 2010 - $7,100.00
4.3 Additional Rent: All annual operating costs over
$0.00 per square foot as more fully described in
section 4.2 of Part II
4.4 Security Deposit: $4,375.00
5. Permitted Use: Day care center, and other educational and
ancillary activities to be operated during business
hours to be determined at the discretion of the
Tenant.
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IN WITNESS WHEREOF, the Landlord and Tenant have caused this
Part I presents to be signed by their duly authorized officers or
agents and their appropriate seals to be hereunto affixed, the day
!
and year first above written.
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S~tMl;d 28j/9df
LANCASTER DEVELOPMEN COMPANY,
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"Landlord" /@/
By ,. .
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Date
EdZ . Hoover
A torney-in-Fact
NORRIS EDUCATIONAL SERVICES, INC.,
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Title
"T~
By ~~ >;'1 w
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Officer/Partner
Title
Officer/Partner
{
Attest
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PART II
LEASE DATED
OF
':Xp/w.ku 28 I filM
between
LANCASTER DEVELOPMENT COMPANY, "I.a,ndlord" and
NORRIS EDUCATIONAL SERVICES, INC., "Tenant"
1. PREMISES.
The Landlord does hereby lease unto the Tenant and the
Tenant does hereby lease from the Landlord the Premises with
the improvements erected or to be erected thereon, which is
outlined in red on Exhibit "A", attached hereto and made a part
hereof, on the terms and conditions set forth in Parts I and
II.
elevators
area
building, the term "rentable area", as used herein,
to (i) in the case of a single tenancy floor,
measured from the inside surface of the outer
or finished
column wall of the Building to the
opposite outer wall excluding only
areas ("service area")
within the outside walls used
fire towers,
elevator shafts, flues,
, stacks, pipe shafts and vertical
areas which are for the
specific use
such as special stairs or
allocation of the square footage of the
mechanical rooms and ground floor
applicable) lobbies, and (ii) in the case of a
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elevator foyers, rest rooms, mechanical rooms, closets,
vending areas and other similar facilities for of all
walls enclosing the leased premises and measured to the
mid-point of the walls separating areas leased by or hel
lease to other tenants or from areas devoted to corrid
tenants on the particular floor (hereinafter called
common areas located
"common areas"), but including a proportio part of the
the tenant's rentable area (excludin common areas) --on such
floor bears to the aggregate area (excluding common
areas) on such floor plus an the square footage
of the Building's elevator a G main mechanical rooms and ground
floor and basement (if
icable) lobbies. No deductions from
for columns or projections
necessary to the
The rentable area in the leased
premises has
the basis of the foregoing
hereby stipulated for all purposeS hereof as
stated
I, section 1.2 of this Lease, whether the same
or less as a result of minor variations
from actual construction and completion of the leased
for occupancy so long as such work is done in
(X) In the event the Demised Premises are part of a flex
building or business center, defined herein as a building where
Tenant's are provided with their own-private entrances, private
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interior common area~
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shared by
restrooms and without any
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Tenant's, the "rentable area" shall refer to all floor area
measured from the outside surface of any exterior walls to the
middle of any demising walls.
2. IMPROVEMENTS.
If E:estion 2.1 of rart I io chcelrea, then 'Penal'lt aeeE!jiltE:
the rremiGcs "as iE;". If Section 2.2 of Part I is checked,
then Landlord shall construct improvements on the Premises in
accordance with plans and specifications which have been
prepared by Landlord and approved by Tenant prior to the
execution of this Lease. For purposes of identification, two
sets of the plans and specifications have been signed by an
authorized agent of each of the parties hereto. Access roads,
and driveways shall be for the joint use of Tenant and Landlord
and other tenants of Landlord. If the parties cannot agree
that Landlord has completed the construction of improvements in
accordance with the plans and specifications, the matter shall
be settled by arbitration in accordance with the rules of the
American Arbitration Association then in effect. Landlord
shall begin erection of the improvements upon the execution of
this Lease, and thereafter .shall proceed with all reasonable
speed to the end that the improvements shall be completed for
occupancy by the date set forth in section 2.2 of Part I if
possible. If, because of Acts of God or of the public enemy or
because of civil commotion, riots, strikes or inability to
obtain materials or any other unavoidable event, construction
is delayed, Landlord may .have a reasonable ext7llsion of the
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completion date by giving Tenant notice of the delay and the
reason therefor.
3. TERM.
Tenant is to have and to hold the Premises for the Term
set forth in section 3.1 of Part I and beginning and ending as
set forth in sections 3.2 and 3.3 of Part I. In the event t~at
Landlord is constructing improvements under Paragraph 2 of this
Part II, and if completion of the improvements is not completed
by the date set in section 2.2 of Part I, then the Term of this
Lease shall begin on the first day of the month fo~lbwing the
date of actual completion and shall continue thereafter the
full Term specified in Section 3.1 of Part I. If the Term
shall begin on a date other than set forth in section 3.2 of
Part I, the parties shall by stipulation certify the date on
which the Term has begun and in the absence of such stipulation
the Term shall conclusively presume to begin on the date set
forth in section 3.2 of Part I. If the Premises are ready for
occupancy on a day other than the first day of this month and
if Tenant accepts occupancy, Tenant may have such occupancy,
without change to the Term, by paying a pro-rata portion of the
Rent based on a thirty (30) day month.
4. RENT.
4.1 Minimum Rent: The parties agree that the Minimum
Rent (the "Rent") for the Premises shall be as set forth in
Section 4.1 of Part I, and so long as Tenant is not in default
Tenant shall pay such rent in the equal monthly installments as
set forth in section 4.2 of Part I, in advance, on the first
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day of each calendar month during the Term; provided, however,
that the rent for the first month of the Term shall be paid
upon the signing of this Lease. In addition, Tenant shall pay
Landlord, without setoff, the Additional Rent (as hereinafter
set forth).
4.2 Additional Rent: Tenant shall pay as additional
rent, the amount by which its pro-rata share of expenses (as
hereinafter defined) for the operation and maintenance of or
with respect to the building of which the Premises are a part,
exceeds the cost per square foot of square footage in the
Premises as stipulated in section 4.3 of Part I. The Tenant's
pro-rata share is based on the square footage as set forth in
section 1.2 and 1.3 of Part I of this Lease. "Expenses" are
defined as real estate taxes and assessments; insurance
premiums; costs for common area repairs and maintenance; snow
removal and lawn maintenance; costs of furnishing water, sewer,
gas, fuel, electricity and other utility services to the extent
not provided for in Section 5.1.1; common area janitorial
service and trash removal; property management personnel; and
the cost of any other items attributable to operating or
maintaining any or all of the Premises or building or property
of which the Premises are a part.
The items of additional rent as provided in this section
4.2 shall be billed to Tenant by Landlord (whether or not such
items have been incurred by the time of billing) each month or
at such intervals as Landlord shall, in its sole discretion
deem appropriate. In the event total billings with respect to
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an item of such additional rent shall exceed, or be less than,
the actual charge incurred for which Tenant is responsible,
excess payments received from Tenant shall be credited toward
subsequent billing (with any net excess at the end of the Lease
term being repaid to Tenant) and deficits shall be included
with the next (or any subsequent) billing or billings. Tenant
shall pay all such billings for additional rent no later than
thirty (30) days after the date of each such billing.
4.3 Securitv Deposit: Tenant shall pay to Landlord upon
the signing of the Lease the Security Deposit set forth in
section 4.4 of Part I which shall be held by Landlord as
security for the performance by Tenant of its obligations under
this Lease and if Tenant is not in default at the termination
of this Lease, then the Security Deposit shall be returned to
Tenant.
5. UTILITIES AND SERVICES.
5.1 Utilities: Landlord shall furnish the Premises with
electricity, heating and air conditioning for the normal use
and occupancy of the Premises as general offices. If Tenant
shall require electricity or install electrical equipment,
including but not limited to electrical heating, refrigeration
equipment, electronic data processing machines, or other
machines or equipment which will in any way increase the amount
of the electricity usually furnished for use as general office
space, or if Tenant shall attempt to use the Premises in such a
manner that the services to be furnished by Landlord would be
required during periods other than or in addition to normal
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At,
business hours, which are 7:30 a.m. to 6:00 p.m., Monday
through Friday, excluding holidays, Tenant will obtain prior
written approval therefor from Landlord (and Landlord may
require the installation of a separate sUb-meter) and Tenant
will pay for the resulting additional direct expense, including
the expense resulting from the installation of such equipment
and meters as Additional Rent promptly upon being billed
therefor. Landlord shall not be liable for any damages to
Tenant resulting from Landlord's failure to deliver services as
stated herein.
5.1.1 If utility services supplied to the Property
are separately metered for the Premises, the cost of such
separately metered utility service shall be paid by Tenant
promptly upon being billed therefor, whether such billing
be by Landlord or the utility company. The charge to
Tenant by Landlord for electricity consumption shall be
the same retail rate which would be payable if Tenant
purchased electricity directly from the utility company
(but not less than that rate actually payable by Landlord)
including applicable taxes and fuel adjustment charges.
5.1.2 Landlord reserves the right, without any
liability to Tenant, and without being in breach of any
covenant of this Lease, to interrupt or suspend service of
any of the heating, ventilating, air-conditioning,
electric, sanitary, or other Building systems serving the
Premises or Building, or the rendition of any of the other
services required by Landlord under this Lease, whenever
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and for so long as may be necessary by reason of accident
,
emergencies, strikes or the making of repairs or changes
which Landlord is required by this Lease or by law to make
or in good faith deems advisable, or by reason of
difficulty in securing proper supplies of fuel, steam,
water, electricity, labor or supplies, or by reason of any
other cause beyond Landlord's reasonable control,
including without limitation mechanical failure and
governmental restrictions on the use of materials or the
use of any of the Building systems. In each iristance,
however, Landlord shall exercise reasonable diligence to
eliminate the cause of interruption and to effect
restoration of service, and shall give Tenant re~sonable
notice, when practicable, of the commencement and
anticipated duration of such interruption. Tenant shall
not be entitled to any diminution or abatement of rent or
other compensation or damages nor shall this Lease or any
of the obligations of the Tenant be affected or reduced by
reason of the interruption, stoppage or suspension of any
of the Building systems or services arising out of the
causes set forth in this paragraph.
5.2 Water service: Landlord shall provide water for
lavatory purposes drawn through fixtures installed by
Landlord. For water furnished for any other purpose, Tenant
shall pay Landlord therefore at the same rates as would have
been charged Tenant by the city in which the Premises are
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located, plus 10%. Tenant shall not waste or permit the waste
of water.
5.3 Common Area Maintenance: The Landlord shall cause
the common areas of the Building in which the Premises are
located to be cleaned at reasonable intervals. If the rest
rooms are in a common area, then the Landlord shall maintain
same in good and clean cOndition, and the tenant and employees
and invitees shall have access to toilet facilities in common
with others having a right thereto.
5.4 Repairs: The Tenant shall at its sole cost and
expense maintain in good repair the Premises and every part
thereof, including waste disposal systems, dedicated heating
and air conditioning systems, and doors, excluding only the
following which Landlord shall maintain in good repair: roof,
foundation, exterior walls, downspouts and gutters, provided,
however, that Tenant shall be required to make repairs to the
roof, foundation, exterior walls, downspouts and gutters if
such repairs are occasioned by any act of negligence by Tenant,
its officers, employees, agents, customers or invitees. If
Tenant requests Landlord to perform repairs or maintenance in
Tenant's Demised Premises (i.e. change light bulb~, clogged
sinks, leaking faucets! ballasts for lights, etc.) and such
repairs are not specified in section 4.2 Additional Rent,
Tenant shall pay the costs associated with such as repairs and
maintenance. Tenant shall return the Premises in good
condition, repair and in a broom-clean condition. In the event
that Tenant fails to comply with any terms of this paragraph
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then Landlord shall undertake such repairs and cleaning with
Tenant being liable for all costs thereof, including any
expenses incurred by Landlord to enforce this provision,
whether court costs, attorneys' fees or any other cost of
collection and enforcement.
5.5 Heatinq Ventilation and Air Conditioninq Maintenance
In the event the Demised Premises have specifically dedicated
heating and air condi~ioning equipment for the Tenant's
Premises, Landlord shall provide for standard preventative
maintenance, (see Exhibit "C"), on all heating and air
conditioning equipment and bill Tenant for this work as
performed.
5.6 Clean Condition: The Tenant shall keep the Premises
in a clean, sanitary and safe condition to the satisfaction of
the Landlord and in accordance with the laws, ordinances and
regulations of the Federal Government, Commonwealth of
Pennsylvania, and of the Township in which the Premises is
situated. Tenant shall comply with all requirements of law,
ordinances and regulations, including those rules and
regulations attached hereto and referred to as Exhibit "B" and
including those relating to occupational safety and health.
There shall be no outside storage, including above-ground
storage tanks.
5.7 Snow Removal and Lawn Maintenance: Landlord shall
mow lawns, trim shrubbery, weed where appropriate and remove
snow from walkways, roadways, and parking areas.
5.8 Janitorial service: (Check applicable paragraph):
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5.8.1 (X) TENANT'S OBLIGATION: Tenant is
responsible for janitorial services and trash removal from the
Premises to the common area dumpster.
additional rent as descr'
attached
provide Tenant with trash removal and janitorial
accordance with "Exhibit D Cleaning specif'
hereto. Such janitorial
included in the
4.2. Any supplemental
janitorial
by Tenant shall be arranged for
either with Landlord's janitorial
6. LIABILITY INSURANCE.
Tenant further covenants that it will at all times during
the Term at its own expense, maintain and keep in force for the
mutual benefit of Landlord and Tenant, general public liability
insurance against claims for personal injury, death, or
property damage occurring in, on or about the Premises to
afford protection to the limit of not less than One Million
($1,000,000.00) Dollars combined for both bodily injury and
physical damage as the result of anyone occurrence. Tenant
shall deliver to Landlord a certificate of said insurance or
*
renewals therefor from timo te time during the Term of the
Lease.
7. FIRE INSURANCE.
Landlord shall procure and maintain in full force and
effect non-assessable fire insurance policies, which insurance
shall 'nclude protection against those ~ences covered by
* at the commencement ;~ this lease a~~annUallY thereafter,
J
'---pt
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standard "extended coverage" clause. Such policies, shall name
Landlord as the insured. In the event of loss, insurance
proceeds shall be held in escrow by Landlord's mortgagee, if
any, and otherwise by an escrow agent selected by Landlord
pending repair of the damages by Landlord, and upon completion
the proceeds shall be paid to Landlord or paid to Landlord's
mortgagee if required by it. In the event Landlord or Tenant
elects to terminate the Lease as hereinafter provided,
insurance proceeds shall be paid immediately to Landlord or its
mortgagee if required by it.
a. USE OF BUILDING.
The parties hereto agree that the Premises may be used for
the permitted use set forth in Section 5 of Part I and uses
incidental thereto. Tenant shall not permit the Premises to be
vacant.
9. ALTERATIONS.
No alterations shall be made in or to the Premises without
the prior written consent of the Landlord. Lighting fixtures
shall remain on the Premises at the termination of the Lease
and shall become the property of the Landlord. All machines,
equipment, fixtures and supplies to be placed upon the Premises
by the Tenant and not ~ncluded on the plans and specifications
for the building shall remain the property of the Tenant and
shall be removed if so directed by Landlord at the termination
of the Lease; but the Tenant agrees to repair any damage to the
Premises caused by the removal of such machines, equipment,
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fixtures or supplies, provided any air conditioners shall
remain even if supplied by Tenant.
10. SlGNS AND EXTERIOR ATTACHMENTS.
No signs, lights, or other attachments or fixtures shall
be placed on the exterior of the improvements, in the windows,
or otherwise placed on the Premises. Tenant acknowledges the
appearance of the Premises affects the value of other nearby
real estate owned by Landlord and that Landlord has a direct
economic interest in the appearance of the Premises. The
appropriateness of such items, being a matter of esthetic
judgment, shall be entirely within the discretion of the
Landlord and there shall not be any standard or requirement of
equality between these Premises and other real estate owned by
Landlord.
11. FIRE AND OTHER DAMAGE.
In case of damage to the Premises by a risk insured
against under paragraph 7 of this Part II, Landlord, unless it
shall otherwise elect as hereinafter provided, shall repair or
cause to be repaired such damages with reasonable dispatch
after receiving from the Tenant written notice of the damage.
If the damages are such as to render the Premises untenantable,
the rent shall be abated to an extent corresponding with the
period during which and the extent to which the Premises have
become untenantable; provided, however, if such damages are
caused by the carelessness or negligence or improper conduct of
Tenant or of a Subtenant, or the agents, employees, visitors,
invitees or licensees of Tenant or of a Subtenant, then
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notwithstanding such damages and untenantability, Tenant shall
be liable for rent without abatement. In the event of damage
to the Premises to the extent of more than fifty (50%) percent
of the value of such Premises, Tenant shall give Landlord
written notice of the damage, (but failure to give,notice shall
not be binding upon Landlord) after which either party may
determine with reasonable dispatch, that the Lease shall be
terminated, in which event all rent shall abate and the Lease
terminate as of the date of the occurrences of the event
causing such damage.
12. CONDEMNATION.
The Tenant may at its option terminate this Lease if any
portion of the Premises is condemned by any governmental body
or by any other body or organization possessing the power of
condemnation provided such condemnation substantially impairs
the use or enjoyment by Tenant ox the Premises. In case of the
taking through eminent domain of all, or any portion, of the
Premises, the Landlord shall notify the Tenant in writing of
such taking. Within sixty (60) days after receipt of such
written notice, the Tenant shall notify the Landlord, in
writing, whether such taking through eminent domain in the
opinion of the Tenant substantially impairs its use or
enjoyment of the Premises. If the Tenant's decision on this
matter is in the affirmative, then it shall also include in
said notice the time when it desires to terminate the Lease,
which time shall not be earlier than physical work (other than
surveying and staking out) shall be instituted on the Premises
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Environmental Response, Compensation, and Liability Act of 1980
and the Resource Conservation and Recovery Act, as amended.
13.3 Tenant shall not place on or within the Leased
Premises any hazardous material including, but not limited to,
unreaformaldehyde foam insulation, polychlorinated biphenyls
and asbestos.
14. NON-LIABILITY OF LANDLORD.
(a) The Landlord shall not be liable to the Tenant, any
officer, employee, agent, invitee, licensee or visitor of the
Tenant, or any other person, for damage or injury to any person
or property caused in whole or in part, by any act, omission or
neglect of the Tenant, its contractor, employees or agents,
invitee, licensee, or visitor, or any happening in any manner
on the Premises and Tenant shall indemnify, defend and hold
harmless Landlord from any claim, loss or liability therefor
provided, however, Landlord shall be liable for its own
affirmative negligence.
(b) All property kept, stored or maintained on the
Premises shall be so kept, stored or maintained at the risk of
the Tenant only, and the Landlord shall not be liable for ariy
loss or damage to the Tenant or his property.
15. SUBLEASE.
The Tenant shall not have the right to sell, assign,
transfer, mortgage, pledge, sublease or sublet the Premises
without the Landlord's prior written consent. In the event
that the Tenant proposes to sublease or sublet the Premises or
any portion thereof, Tenant shall give to Landlord its written
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notice which notice shall set forth (i) the identity, business
and financial condition of the proposed sub-tenant, (ii) the
terms and conditions of the proposed sublease, (iii) any other
relevant information requested by Landlord and (iv) an offer by
Tenant. and proposed sub-tenant for the release of Tenant from
this Lease and the establishment of the Landlord-tenant
relationship between Landlord and proposed sub-tenant under the
terms and conditions of the proposed sublease. Landlord shall
have the right to (a) withhold consent, if reasonable, (b) to
grant consent (in which case Tenant and Landlord shall divide
equally any increase in rent), or (c) to release Tenant from
this Lease and accept the offer of the proposed sub-tenant to
establish the Landlord-tenant relationship between Landlord and
proposed sub-tenant under the terms and conditions of the
proposed sublease. In the event that the proposed sublease is
of a portion of the Leased Premises, and Landlord consents to
the sublease, the rent in this Lease shall be prorated between
the portion proposed to be subleased and the balance of the
Premises on a square foot basis.
16. VOLUNTARY OR INVOLUNTARY ASSIGNMENT.
Neither this Lease nor any interest therein shall be
assignable or otherwise transferable by operation of law or by
VOluntary assignment or for the benefit of creditors without
the written consent of the Landlord, and such inhibition
against voluntary assignment includes and comprehends any and
every assignment which might otherwise be affected or
accomplished by bankruptcy, receivership, attachment, execution
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or other judicial process or proceeding. If any assignment for
the benefit of its creditors should be made by the Tenant, or
if a voluntary or involuntary petition in bankruptcy, or for
reorganization, or for an arrangement should be filed by or
against the Tenant, or if the Tenant should be adjudicated a
bankrupt or insolvent, or if a receiver is appointed of or for
the Tenant, or for all or a substantial part of its property,
or if any such assignment or transfer by operation of law
should occur, then and in any such event, the Landlord may at
its option, terminate this Lease by notice to the Tenant. The
provisions of this paragraph shall not apply to any of the
rights, titles and interest of the Landlord in, to or under
this lease..
17. SURRENDER AT LEASE TERMINATION.
The Tenant shall, upon the termination of the Term of this
Lease, surrender to the Landlord the Premises and all building
apparatus, machinery, equipment and fixtures situated thereon
except items which may be removed under section 9 of Part II.
All alterations, improvements, and other additions which may be
made or installed by either party to, in, upon, or about the
Premises shall either be removed by Tenant under section 9 of
Part II or become the property of the Landlord as the Landlord
may elect and if Landlord elects to keep the same they shall be
surrendered to the Landlord by the Tenant without any damage,
injury or disturbance thereto, or payment therefor, and
otherwise Tenant shall repair any damage caused by removal.
18. EVENTS OF DEFAULT.
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If Tenant fails to pay any installment of rent promptly on
the day when due and payable hereunder, and shall continue in
default for a period of ten (10) days, or if Tenant shall fail
to promptly keep and perform any other affirmative, covenant or
agreement of this Lease, strictly in accordance with the terms
thereof and shall continue in default for a period of ten (10)
days after written notice thereof by Landlord of default and
demand of performance or compliance, then such shall be an
Event of Default. If any default shall occur, other than in
the payment of money, which cannot with due diligence be cured
within such period of ten (10) days from and after the giving
of notice as aforesaid, commence to cure such default and
proceeds diligently and with reasonable dispatch to take all
steps and do all work required to continue to cure such default
and does so cure such default, then Landlord shall not have the
right to declare an..Event of Default. Any of the following
shall also constitute an Event of Default: Tenant is
adjudicated a bankrupt, institutes proceedings for a
reorganization or for an arrangement under the Bankruptcy Act,
or an involuntary petition in bankruptcy is filed against
Tenant, which is not dismissed within ninety (90) days.
19. LANDLORD RIGHTS.
Upon an Event of Default, Landlord may, without notice,
declare a Default, and upon a Default, Landlord may:
19.1 Rent for Term: Declare the entire rent for the
balance of the Term immediately due and payable. The Landlord
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shall have the immediate right to enforce collection of these
payments against the Tenant.
19.2 Warrant of Attornev to Confess Judqement and
Eiectment: Any attorney (including the Landlord's attorney)
may immediately at the request of the Landlord and based on an
affidavit of default by the Landlord, sign an agreement for the
entering in any competent court an amicable action and
confession of judgment in ejectment against the Tenant, and all
persons claiming under the Tenant, for the recovery by Landlord
of possession of the Premises, for which this provision shall
be a sufficient warrant. Thereupon a Writ of Possession may
issue forthwith for possession of the Premises. If for any
reason after such amicable action and confession of judgment in
ejection has been commenced, the same shall be terminated by
way of compromise, settlement or judgment of the court leaving
the Tenant and those claiming under the Tenant in possession of
the Premises under the Lease, LandLord shall have the right in
the event of any subsequent default or defaults to bring one or
more future amicable actions and confessions of judgment in
ejectment to recover possession of the Premises for such
subsequent default. This remedy for possession shall be in
addition to any other .remedy herein provided and specifically
shall be in addition to the right of the Landlord to repossess
the Premises peaceably in the event of default or abandonment
of the Premises by the Tenant.
19.3 Warrant of Attornev to Confess Judqement for Monev
Damaqes Aqainst Tenant: Upon Default the Tenant hereby
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empowers any Prothonotary or any Attorney of any Court of
Record in Pennsylvania to appear and confess judgement for any
and all such rental, damages, additional rental or charges
together with reasonable attorney's fees. The authority
granted by the Tenant to Confess Judgement shall not be
exhausted by one exercise thereof, but the power granted may be
exercised in any subsequent action against the Tenant. The
authority to confess judgement shall continue through the
original term of this Lease and for any renewals, and following
termination of the Lease, for any period for which the tenant
has possession of the Demised Premises.
20. HOLDING OVER.
In the event Tenant shall continue to occupy the Premises
after the expiration or any renewal thereof, such occupancy
shall be deemed to be under a tenancy at sufferance and under
the same terms and conditions set forth in this Lease; except,
that the monthly Rent during such continued occupancy shall be
double the amount in effect immediately prior to expiration,
and if Landlord elects to accept monthly Rent therefor, a
tenancy from month-to-month only shall be created and not for
any longer period.
21. INTEREST AND COLLECTION EXPENSES.
Interest shall accrue on any monies due from Tenant to
Landlord from the date the same are due (including rent and
money advanced by Landlord to others on account of the failure
of Tenant to perform hereunder) at the rate of one and one-half
(1-1/2%) percent per month until the same is paid and Tenant
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shall pay the interest upon demand. If Landlord consults any
attorney for the collection of any sums due from Tenant or
otherwise in connection with Tenant's performance hereunder,
Tenant shall, whether or not proceedings are instituted,
reimburse Landlord the reasonable attorney fees and court
costs, if any.
22. SUBORDINATION.
Tenant shall subordinate its interest in the Premises to
the lien, operation and effect of mortgages as requested by
Landlord from time to time, provided that such subordination
shall permit Tenant to occupy the Premises under the terms of
the Lease so long as Tenant is not in default.
23. ADDITIONAL INSTRUMENTS.
Tenant shall, at the request of Landlord, execute such
additional instruments Landlord's mortgagee may request from
time to time or as may be required or convenient hereunder not
inconsistent herewith.
24. LANDLORD'S COVENANT OF TITLE AND QUIET ENJOYMENT.
Landlord covenants and warrants that upon the term of the
Lease commencing, it shall have full right and lawful authority
to enter into this Lease for the full Term hereof, and that
Landlord will be lawfully seized of the entire Premises and
will have good title thereto and that at all times when Tenant
is not in default under the Terms and during the Term of this
Lease, Tenant's quiet and peaceable enjoyment of the premises
shall not be disturbed or interfered with by anyone. Landlord
in person or by agent shall be permitted to enter upon the
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Premises at reasonable times to examine the same or to make
such repairs as are required hereunder.
25. SUCCESSORS AND ASSIGNS.
This,Lease shall inure to the benefit of and shall bind
the heirs, successors and assigns of the parties to the extent
that the parties' rights hereunder may succeed and be assigned
*
according to the terms hereof.
26. DESCRIPTIVE HEADINGS.
The descriptive headings of the several paragraphs hereof
are inserted for convenience only and shall not control or
affect the meaning or construction of any of its provisions.
27. SERVICE OF NOTICE.
If at any time after the execution of this Lease it shall
become necessary or convenient for one of the parties hereto to
serve any notice, demand or communication upon the other party,
such notice, demand or communication shall be in writing signed
by the parties serving the same, sent by united States mail, to
the respective addresses set forth in the preamble of Part I,
or at such other address as either party may have furnished to
the other in writing as a place for the service of notice. Any
notice so mailed shall be deemed to have been given as of the
time it is deposited i~ the United States mail.
28. WAIVER OF SUBROGATION.
Each party waives rights of subrogation against the other
with respect to any insured risks to the extent such waiver
does not invalidate such insurance or reduce the proceeds.
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* A transfer of shares of the Tenant cor 0 ion shall not be
construed to be aI:!,impermissable assignme~t under this Lease.
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29. CONSOLIDATION.
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This Part II and the accompanying Part I constitute one
agreement and may be signed in any number of counter parts and
shall be construed under the laws of the Commonwealth of
Pennsylvania.
IN WITNESS WHEREOF, the Landlord and Tenant have caused this
Part II presents to be signed by their duly authorized officers or
agents and their appropriate seals to be hereunto affixed, the day
and year first above written.
~fbv,jp l~'J /Ieq
LANCASTER DEVELOPMENT COMPANY,
J
"Landlord" / :
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By
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Date
. Hoover
;
Attorney-in-Fact
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NORRIS EDUCATIONAL SERVICES, INC.,
"Tenant"
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Title
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By
Officer/Partner
Attest
Title
Officer/Partner
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..... 7 Th,4.s GU~TY J..p given j.o~nj;..ly by, Timotl1Y R. Norrs.
0/-0 .:::dd '/o-rK ~l::> / jVe).J L<..A<-\.6:.r(""cR ~ /7070 '~
4. N-:-ttinghnlR Read, c/u"P Hill, Fel,n3ylva"ia 170],]", (the
GUARANTY
"Guarantor"), to LANCASTER DEVELOPMENT COMPANY, 1.853 William
Penn Way, P.O. Box 10008, Lancaster, Pennsylvania 17605-0008
(the "Landlord").
RECITALS
At the request of the Guarantor, the Landlord has
entered into a lease with Norris Educational Services, Inc.,
(the "Tenant"), for premises at 4909 Louise Drive, suites
108-113, Mechanicsburg, Pennsylvania 17055, which is dated the
date of this Guaranty (the "Lease"); and
The Landlord would not have entered into the Lease
except for the request of the Guarantor and execution and
delivery of this Guaranty; and
In consideration of the Landlord entering into the
Lease with Tenant;
The Guarantor agrees as follows:
1. Guarantv. The Guarantor, for itself and its
successors and assigns, guaranties the prompt payment when due,
or whenever payment may become due under the terms of the Lease,
of all payments of rent, additional rent, and all other charges,
expenses and costs of every kind and nature, which are or may bE
due now or in the future under the terms of the Lease, any
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agreements or documents relate? to the Lease, or any other
transaction between the Landlord and the Tenant directly or
indirectly related to the Lease; and the complete and timely
performance, satisfaction and observation of the terms and
conditions of the Lease, and related obligations arising by
reason of the Lease, required to be performed, satisfied or
observed by the Tenant.
2. Coveraqe of Guarantv. This Guaranty extends to
any and all liability which the Tenant has or may have to the
Landlord by reason of matters occurring before the signing of
the Lease by the parties or commencement of the term of the
Lease or by matters occurring after the expiration of the term
of the lease by reason of removal of Tenant property, surrender
of possession or other matters. This Guaranty extends to any
successor of the Lessee, any assignee or sublessee of the
Lessee, to any extensions or renewals of the Lease, and to any
term established by reason of the holdover of the Tenant, an
assignee or sublessee.
3. Performance Guarantv.' In the event that the
Tenant fails to perform, satisfy or observe the terms and
conditions of the Lease, and related Lease obligations required
to be performed, satisfied or observed by the Tenant, the
Guarantor will promptly and fully perform, satisfy and observe
the obligation or obligations in the place of the Tenant. The
Guarantor shall pay, reimburse and indemnify the Landlord for
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any and all damages, costs, expenses, losses and other
liabilities arising or resulting from the failure of the Tenant
to perform, satisfy or observe any of the terms and conditions
of the Lease, and related obligations.
4. waiver of Notices. without notice to or further
assent from the Guarantor, the Landlord may waive or modify any
of the terms, conditions of the Lease, or related Tenant
obligations; or compromise, settle or extend the time of payment
of any amount due from the Tenant or the time of performance of
any obligation of the Tenant. These actions may be taken by the
Landlord without discharging or otherwise affecting the
obligations of the Guarantor.
5. Lease Security. This Guaranty shall remain in
full force and effect, and the Guarantor fully responsible for
the performance of the terms and conditions of the Lease.
6. Unconditional Oblioations. The liability of the
Guarantor is direct, immediate, absolute, continuing,
unconditional and unlimited. The Landlord shall not be required
to pursue any remedies it may have against the Tenant as a
condition to enforcement of this Guaranty. Nor shall the
Guarantor be discharged or released by reason of the discharge
or release of the Tenant for any reason, including a discharge
in Bankruptcy, receivership or other proceedings, a
disaffirmation or rejection of the Lease by a trustee,
custodian, or other representative in Bankruptcy, a stay or
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other enforcement restriction, or any other reduction,
modification, impairment or limitations of the liability of the
Tenant or any remedy of the Landlord.
7. Subordination of Subroqation Riqhts. The
Guarantor subordinates any and all claims which the Guarantor
has or may have against the Tenant by reason of subrogation for
payments or performances under this Guaranty or claims for any
other reasons or cause. The Guarantor agrees not to assert any
claim which it has or may have against the Tenant, including
claims by reason of subordination under this Guaranty, until
such time as the payment and other obligations of the Tenant to
the Landlord are fully satisfied and discharged.
8. Bindinq Effect. This Guaranty is binding upon the
Guarantor, its successor and assigns, and is binding upon and
shall inure to the benefit of the Landlord, its successors and
assigns. No assignment or delegation by the Guarantor shall
release the Guarantor of its obligations under this Guaranty.
The term "Tenant" used in this Guaranty includes also the first
and any successive assignee or sublessee of the Tenant or any
assignee or sublessee of the Tenant.
9. Modifications. The Guaranty may not be modified
orally, but only by a writing signed by both the Guarantor and
the Landlord. Modifications include any waiver, change,
discharge, modification, or termination.
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. In witness whereof intending to be
~uarantor has duly signed this Guaranty this
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WITNESS:
legally
;;8.f1--
bound, the
, 1989.
day of
GUARANTOR: TIMOTHY R. NORRIS
~~BY'~~
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EXHIBIT "B"
RULES AND REGULATIONS
1. No part or the whole of the sidewalks, plaza areas,
entrances, pas pages , courts, stairways, corridors or
halls of the building or the real property shall be
obstructed or encumbered by any Tenant or used for any
purpose other than ingress and egress to and from the
space demised to such Tenant.
2. No awnings or other projections shall be attached to the
ou~side walls or windows of the building. No curtains,
bl~nds, shades, or screens shall be attached to or hung
in, or used in connection with, any window or door of
the space demised to any Tenant other than those
specified or supplied by Landlord. In the event such
shades or screens are specified or supplied by Landlord,
removal of same at any time will be prohibited.
3. No sign, advertisement, object, notice or other
lettering shall be exhibited, inscribed, painted, or
affixed on any part of the outside or inside of Tenant's
premises, so as to be visible from the exterior, without
prior written consent of Landlord.
4. No show cases or other articles shall be put in front of
or affixed to any part of the exterior of the building.
5. The water and wash closets and other plumbing fixtures
shall not be used for any purposes other than those for
which they were constructed, and no sweepings, rubbish,
rags, or other substances (including, without
limitation, coffee grounds) shall be thrown therein.
All damage resulting from any misuse of the plumbing
fixtures shall be borne by the Tenant who, or whose
agents, employees, visitors, licensees, contractors or
suppliers, shall have caused such damage.
6. No Tenant, nor any of its agents, employees, visitors,
licensees, contractors or suppliers at any time hring or
keep upon the leased premises any flammable, combustible
or explosive fluid, chemical or suhstance without
Landlord's prior approval, and Tenant shall obey fire
regulations and procedures governing said leased space
and building.
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EXHIBIT "B"
RULES AND REGULATIONS
Page Two
7.
No Tenant shall mark, paper, paint, bore into, make any
alterations or additions to, or in any way deface any
part, including equipment and fixtures, of the leased
space or the building of which it forms a part, without
the prior written consent of Landlord. No wires shall
be installed except in conduits, ducts or outlets
established for that purpose, unless prior written
consent of Landlord has been obtained. No Tenant shall
lay carpeting, so that the same shall come in direct
contact with the floor of the leased space, and, if
Tenant desires to install carpeting, an underlayment
shall be first laid, without the uSe of cement or other
similar adhesive material. If any Tenant desires to
install any floor covering other than carpeting, subject
to the prior consent of Landlord, such floor covering
shall be installed in accordance with the manufacturer's
specifications.
8.
...
the leased space, without the prior written c of
Landlord, provided, however, that the ng,
refrigerating and preparing of ages and light
snacks for employees sha permitted if there are
appropriate facilO 0 and equipment for such purposes.
No Tenant s cause to permit any unusual or
obje able odors to be produced upon or emanate from
9. Neither the whole nor any part of the space demised to
any Tenant shall be used for manufacturing, without
prior written approvalirom the Landlord, or for the
sale at auction of merchandise, goods, or property.
10. No Tenant shall make, or permit to be made, any unseemly
or disturbing noises or disturb or interfere with other
Tenants or occupants of the building or neighboring
buildings or premises. Hhcthcr' by the. t13C- of d14J
'musical in;:;strulllcnt, J:adio, tele..isiol, ",,,,t, otl,er l>11J.io
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dcvJ.cc, anlllusJ.ca~ l'l.EaSe, W'..~3~~U'l;<J, B~n<JJ.ng', ,er J... ..~
otnel< ~fay, Nothing shall be thrown out of any doors,
windows, or down any passageways or stairs.
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EXHIBIT liB"
RULES AND REGULATIONS
Page Three
11. All moving of safes, freight, furniture or bulky matter
of any description to and from the leased space, shall
only take place within the confines of specified
passageways or stairs, and during the hours designated
by Landlord. There shall not be used in any space, or
in the public walkways of the building, either by the
Tenant or by jobbers or others, in the delivery or
receipt of merchandise, any hand trucks, except those
equipped with rubber tires.
l2. No Tenant shall use or occupy or permit any portion of
the space demised to such Tenant to be used or Dccupied
as an employment bureau or for the storage, manufacture
or sale of liquor, narcotics or illegal drugs, except
those used in their normal course of business.
13. Landlord shall have the right to prohibit any
advertising by any Tenant which, in Landlord's op~n~on,
tends to impair the reputation of the Building, and upon
notice from Landlord, such Tenant shall refrain from or
discontinue such advertising.
14. No space demised to any Tenant shall be used, or
permitted to be used, for lodging O~ 5lecpiR~ or for any
immoral or illegal purpose.
15. The requirements of Tenants will be attended to only
upon application at the office of Landlord. Building
employees shall not be required to perform, and shall
not be requested by any Tenant, to perform, any work
outside of their regular duties, unless under specific
instructions from the office of Landlord or the building
management.
16. canvassing, soliciting, and peddling in the buildings
are prohibited, and each Tenant shall cooperate to
prevent the same..
17.
cats and dogs shall not be
Animals shall be permitted
integral part of the edu
basis.
kept about the premises.
to the extent they are an
ional program on a temporary
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EXHIBIT "B"
RULES AND REGULATIONS
Page Four
18. No Tenant shall install or permit or allow installation
of a television, radio, or two-way radio antenna, or any
other similar antenna, on the roof, in the windows or
upon the exterior of the leased space of the building,
without the prior written consent of Landlord.
19. No Tenant shall tie in, or permit others to tie in to
the water supply on the premises without prior written
consent of the building management.
20. No Tenant shall remove, alter or replace the building
standard ceiling light diffusers in any portion of the
leased space without the prior written consent of
Landlord.
21. Except for purposes of emergency, notices, posters, or
advertising media will not be permitted to be affixed on
the exterior of the building.
22. Business machines and mechanical equipment be10nging to
Tenant which cause noise or vibration that may be
transmitted to the structure of the building or to any
space therein to such a degree to be objectionable to
Landlord or to any Tenant in the building shall be
installed and maintained by Tenant, at Tenant's expense,
on vibration eliminators or other devices sufficient to
eliminate such noise and vibration.
23. Tenant shall immediately notify the building management
of any serious breakage, or fire or disorder, which
comes to its attention in its premises or any of the
common areas of the building.
24. Tenant shall apply, at Tenant's cost, such reasonable
pest extermination measures as Tenant deems reasonably
necessary.
25. Tenant shall not burn any trash or garbage of any kind
in or about the demised premises.
26. Leasee shall not permit the use or placement of door
mats or the like on the exterior of any entrance door to
the demised premises.
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EXHIBIT "B"
RULES AND REGULATIONS
Page Five
27. For purposes of these Rules and Regulations, the
"building management" shall mean the duly designated
representative of Landlord to manage the building.
28. Landlord reserves the right to rescind, amend, alter or
waive any of the foregoing Rules and Regulations at any
time when, in its judgment, it deems it necessary,
desirable or proper for its best interest and for the
best interests of the Tenants, and no such rescission,
amendment, alteration or waiver of any rule or
regulation in favor of one Tenant shall operate as an
alteration or waiver in favor of any other Tenant.
Landlord shall not be responsible to any Tenant for the
non-observance or violation by any other Tenant of any
of these Rules and Regulations at any time.
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Landlor
Initials
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Initials
Date
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AMENDMENT
T 0
THE
LEA S E
ADDITIONAL SPACE
AGREEMENT made this I r day of ~~ ,
between LANCASTER DEVELOPMENT COMPANY ("Landlord"), and NORRIS
EDUCATIONAL SERVICES, ("Tenant").
1991,
BACKGROUND
A. Tenant and Landlord entered into a Lease dated
September 28, 1989, wherein Tenant leased 6,000 square feet of 4909
Louise Drive (suites 108-113), (the "Building"), Mechanicsburg,
Pennsylvania 17055. The aforesaid Lease is herein referred tD as the
"Lease".
B. Tenant desires to lease additional space in the
Building as set forth herein.
NOW, THEREFORE, the parties hereto, intending to be
legally bound, agree as follows:
I. Effective for the period August 1, 1991 to July 31,
2010 (July 3l, 2010 being the expiration date of the term of the Lease),
the premises leased under the lease (the "Premises") shall be expanded
to include the additional space, suite ll4, in the Building consisting
of 815 square feet as shown on Exhibit "A-2" hereto (the Expansion
Premises"). The Expansion Premises are contiguous to the Premises.
2. During the above-stated period applicable to the
Expansion Premises, all the terms and conditions of the Lease shall
apply to the Expansion Premises as if it were an original part of the
Premises, subject to the following:
The parties to the above referenced Lease amend Part I,
sections 1, 2, and 4 by replacing those sections with the following:
1. Premises:
1.1 Location: 4909 Louise Drive, Suites l08, l09,
110, 1ll, 1l2, ll3, and 114 (front door at suite
llO), Lower Allen Township, County of
Cumberland, Mechanicsburg, Pennsylvania 17055
1.2 Tenant's Rentable Square Footage: 6,815 square
feet (Includes Tenant's Pro~rata share of common
area)
1.3 Building Rentable Square Footage: 35,746
square feet
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2. Improvements:
2.1 (l Premises leased with existing improvements.
2.2 (Xl Improvements by Landlord to be completed
in Expansion Premises for occupancy on or before
August l, 1991.
4. Rent:
4.1 Minimum Rent: $1,536,870.00
4.2 Monthly Installment:
August 1, 1990 through January 3l, 1991 -$2,200
February 1, 1991 through December 3l, 1991-$4,620
January 1, 1992 through July 3l, 199~ - $5[250
August 1, 1995 through July 31, 2000 - $5[850
August l, 2000 through July 3l, 2005 - $6,870
August l, 2005 through July 3l, 2010 - $8,065
4.3 Additional Rent: All annual operating costs
over $0.00 per square foot as more fully describe
in Section 4.2 of Part II
4.2 Security Deposit: $4,375.00
IN WITNESS WHEREOF the parties, inten~~ to be legally bo
have signed this Amendment as of the I~ day of -\-e...bruR~
, 1991.
LANCASTER DEVELOPMENT
By:
Edw S.
f~
Title
NORRIS EDUCAT ONAL SERVICES,
'-.~~?> "
Offlcer/Partner
"Tenant"
. By:
By:
Officer/Partner
T~tle
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AMENDMENT
'2 TO
TNE
LEASe
Relating to:
AGREEMENT made this dLI~ day of 0., u~
LANCASTER DEVELOPMENT COMPANY, ("Landlord'), and NORRIS EO~ S\lRVICES"
. 1991, bet\J~n
(-Tenant.) 4
BACKGROUND
A. Tenahe and Landlord entered into a Lease dated September 28, 1989. wherein Tenant
leased 6,lXJO square feet and an Add; cional Space Amendment dated FebM.lary 18, 1991, wherein Tenant leued
815 additional square feet of 4909 Louise Drive, Suites 108 - 114, (the -Building-), Mechanicsburg,
Pennsylvania 17055. The aforesaid Lease is herein referred to as the -Lease-,
Ui$ GlUtually agreed between Lancaster OeveloplDent Company. -Landlord- and Norris Education
Services. -Tenant-, that Tenant will continue to lease the above referenced Premiscs under toe same terms
and conditions of the original lease between Landlord and Tenant.
--
The parties to the above referenced lease a=end Part I. by replacing those sections with the following:
4. Rent:
4.1 Hinimum Rent: $1.506.114400
4.2 Honthly Installment: June 17. 1991 through June 30. 1991 - $4.914.00 - Prorated-
July 1. 1991 through November 30, 1991 - $4.620.00"
-(No Sase Rent due on the additional 815 square feet.)
December 1. 1991 through July 31. 1995 - S5.250.00
August 1. 1995 through July 31, 2000 - '5,850.00
August 1. 2000 through July 31, 200S - $6,870.00
August 1, 200S through July 31, 2010 - '8'06~
IN WITNESS WHEREOF. the Landlord and ~~~~~ intending to ~e-\egalhY bound. have si~ned this
AmEendlDeflt to Part I of the Lease as of:;;;f:;::J. day of '- _) LJ 0 .' ..1991.
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AllENDKENT If3 TO THE LEASE
Relating to: 4909 Louise Drive, Suites 108-114
Kechanicsburg, ~lvania 17055
AGREEMENT made this ,f'day of \Y'CJiliI\, 1992, between LANCASTER OEVELOPKEHT COKPANY,
("Landlord"), and NORRIS EDUCATIONAL SERVICES, INC., ("Tenant").
BACJ:GROUHD
A. Tenant and Landlord entered into a Lease dated Septead>er 28, 1989 wherein Tenant leased 6,000
square feet at 4909 Louise Drive, Suites 108-113, Mechanicsburg, Pennsylvania.
B. Tenant and Landlord entered into a Lease AmendllOnt on February 18, 1991 for the purpose of adding
an additional 815 squa~ feet (Suite 114) to said space, such that PremiSes tcrtal 6,815 square feet.
c. Tenan1: and landlord en1:ered ;n1:o a Lease AmendlDent IIZ on July 24, 1991 for the purpose of giving
Tenant access to the additionaltlpace approximately six weeks earlier than agreed previously; -
D. At this date, Tenant is 2"C "32~. '3 ( in arrears on his account, with said arDOUnt inclusive
of past due rent, additional rent and late fees..
E. In consideration of the revisions to the rental payments as expressed herein in the amended
Section 4 below, which is expected to result in greater rental income to Landlord in the future than
previously bargained for under the lease as previously amended, Landlord hereby Torgives:and exonerates
Tenant from responsibility to pay the amount referenced in Paragraph D above as an,arrearage in Tenant's
account.
It is mutually agreed by landlord and Tenant that Tenant will continue to lease the above referenced
space under the same terms and conditions of the original lease as amended excep-c for as further amended
below.
The parties to the above referenced lease do hereby amend Part I, Section 4 by replacing those
sections with the following:
4. Rent:
4.1 Kinimum Rent: $1,144,000
4.2 Konthly Installment: April 1, 1992 to July 31, 2010
The IIOnthly rent installment shall be deter.ined as the greater of Five Thousand Two Hundred
DoLlars ($5,200.00) or twentywone and one-half percent (21..5%) of the revenue generated from
activities on the Premises for the month ending approximately thirty (30) days before the due
date of the IIIOnthly rent installllOnt. Each said IIIOI1thly rent installllOnt shall be acco~ied
by a detailed revenue report which shall provide a basis for computation of the monthly rent
installment on a percentage ~sis.
4.3 Additional Rent: None due. Additional rent otherwise due is now considered to be included
in the monthly rent installment.
4.4 Security Oeposit: $4,375 (previously paid by Tenant)
4.5 Audit: Landlord hereby receives the right to audi.t Tenant's financial and enroLtlDent
records for the purpose of verifying the accuracy of Tenant's claillS concerning revenue, which
Ill8terially affect landlord because ~nt is due as a percentage of revenue.. Landlord's right
of inspection is not intended to relieve Tenant of the duty to maintain accurate records and
report accurate revenue receipts monthly to Landlord with the submission of the monthly rent
installment. Landlord shall pay for the cost of said audit unless audit reveals that Tenant
has arred or otherwise understated actual revenues by IIIOra than one'half of one percent (.Sh)
in which case Tenant shall pay for the reasonable costs associated with said audit.
Additionally, Tenant shall be responsible to pay forty-three (~) of the understated revenue
as past due rent; said alllOUl1t to be due i_iately upon demend by Landlord.
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IN VITNESS VHEREOF, the Landlord and Tenant, intending to' be legally bound, have signed this Amendment
to Part I of the Lease as of the {<(rdaY of i'j'Ot-c'<--, 1992.
~~'\ocV\ \ ~ 1170-
Date
By
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NORRIS EOUCAT1ONAL SERVICES, INC., "Tenant"
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A" END" EN T 64 TO TN E LEA S E
AGREENENT made this /3 ~ day of (\ / p, . /
DEVELOP"ENT COMPANY, ('Landlord'), and NORRIS EDUCATlO~ INC.,
, 1994, between LANCASTER
("Tenantlt)4
BACI(GROUND
A. Tenant and landlord entered into a lease dated September 20, 1989 wherein Tenant leased 6,000
square feet of 4909 Louise Drive, Suites 108-113, Kechanicsburg, Pennsylvania. The aforesaid lease is
herein referred to as the "Lease".
B. Tenant: and Landlord entered into a Lease AlDendlllent 0". February 18, 1991 for the purpose of
adding an additional 815 square feet (Suite 114) to said space, such that Premises total 6,815 square
feet..
c. Tenant and Landlord entered into a lease Aalendment 1/2 on JUly 24, 1991 for the purpose of giVing
Tenant access to the addi'tional space approximately six weelcs earlier than agreed previously.
D. Tenant and Landlord entered into a Lease AIIlendment 113 on I1arch 1S, 1m for the purpose of
forgiving past debt of Tenant and converting to 8 percentage Lease with a .inimum monthLy payment.
E. In consideration of LandLord's accommodations incLuding forgiveness of debt, Tenant is willing
to increase the minimum monthly paYDent from $5,200.00 to $6,000.00.
It is mutuaLly agreed by landlord and Tenant that Tenant wilL continue to lease the above
referenced space under the same terms and conditions of the originaL Lease as amended except for as
further amended beLow.
The parties to the above referenced Lea~e do hereby amend Part I, Section 4 by replacing those
sections with the following:
4. Rent:
4.1 Minimum Rent: $1,146,000.00
4.2 MonthLy Installment: September 1, 1994 through July 10, 2010
The monthly rent installment shall be determined as the greater of Six Thousand doLLars
($6,000.00) or twenty-one and one-haLf percent (21.SY.) of the revenu~ generated from
activities on the Premises for the month ending approximateLy thirty (30) days before the
due date of the monthLy rent installment. Each said monthLy rent installment shall be
accompanied by a detailed revenue report which shall provide a basis for comput:ation of the
mOnthly rent installment on a percentage basis.
LANCASTER DEVELOP"
, have signed this /
, 1994/
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IN \lITNESS \lHEREOF, the ~andlord and Tenant, int~ to be lega
Amendment to Part I of the Lease as of this J.. =? day of
By:
Title
Edward S. H
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NORRIS EDUCATIONAL SERVICES, INC., UTenantl1
By: ~ /~. ,:/
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LANCASTER DEVELOPMENT
COMPANY
COURT OF COMMON PLEAS
CUMBERLAND COUNTY
Plaintiff
v.
NORRIS EDUCATIONAL SERVICES,
INC.
No.
Defendant.
AFFIDAVIT
COMMONWEALTII OF PENNSYLVANIA: SS.
COUNTY OF LANCASTER
Robin Zellers, being duly sworn according to law, deposes and says that he is a Regional
1;" \.\~ )>s",,>oc:.\A.~ I,-,.t>. )""ie,,;-~"1iZ.
Manager ofPlaintitt,'Lancaster Development Company, that he is authorized to make this
affidavit on behalf of Plaintiff; that the facts set forth in the foregoing Complaint for Confession
of Judgment are true and correct to the best of his knowledge, information and belief; and that
the Exhibits attached to the Complaint are true and correct copies of the originals.
LANCASTER DEVELOPMENT
COMPANY
fL~
Sworn to aud subscribed
before me thiso?O d day
Robin Zellers
Regional Manager
I-\\~~ A.>s.oC.\A.",E>.l.."~' ""'S<2.,,-+ {."..
I../>.~c.lo.>\a~ ~I{'-\.di't\u.r.- CD.
?t:~ ~2000
k ,.t:.2 <2-/
Notary Public
My Commission Expires:
Notarial Seal
Nora A. Starnes. NolaIy Public
Derry Twp., Dauphin County
My Commission Expires Aug. 14, 2000
Member, Pennsylvania Association of Notaries
lIBGI40359,1
.
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LANCASTER DEVELOPMENT
COMPANY
COURT OF COMMON PLEAS
CUMBERLAND COUNTY
Plaintiff
v.
NORRIS EDUCATIONAL SERVICES,
INC.
No.
Defendant.
AFFIDAVIT OF NON-RETAll.. TRANSACTION
COMMONWEALTH OF PENNSYLVANIA: SS.
COUNTY OF LANCASTER
Allen C. Warshaw, Esquire, being duly sworn according to law, deposes and says he is
counsel for the Plaintiff, Lancaster Development Company, that he is duly authorized to make
this Affidavit; and that the transaction upon which this judgment is being entered did not arise
out of a retail installment sale contract or account.
W?-(? --
Allen C. Warshaw, Esquire
Sworn to and subscribed
before me thisoX'fi day
of Jut t ,2000.
~A/~~
otary Public ___
My Commission Expires:
Notarial Seal
Nora A. Starnes. Notary Public
, Deny Twp.. Dauphin County
'[ "'1<" Cn""rr";~sion F'lI.'oires Aug...1~~2000
HBGI40359,(
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LANCASTER DEVELOPMENT
COMPANY
COURT OF COMMON PLEAS
CUMBERLAND COUNTY
Plaintiff
v.
NORRIS EDUCATIONAL SERVICES,
INC.
No.
'Defendant.
CERTIFICATE OF RESIDENCE
I hereby certify that the following is the address of the Defendant, Norris Educational
Services, Inc.:
206 Bridge Street
New Cumberland, P A 17070
Respectfully submitted,
Dated: 7/'20/00
~(v--
Allen C. Warshaw, Esquire
Attorney Id No. 17145
Duane, Morris & Heckscher LLP
305 North Front Street, 5th Floor
P.O. Box 1003
Harrisburg,PA 17108-1003
(717) 237-5500
Attorneys for Plaintiff Lancaster
Development Company
Sworn to !IIld subscribed
before me thisJcJ tA day
of JULY. .2000.
~~~
otaryPublic
My Commission Expires:
Notarial Seal
Nora A Starnes, Notary Public
Derry Twp.. Dauphin County
My Commission Expires Aug. 14, 2000
Member, Pennsylvania Ai>soclation of Not[;ries
1IBG140359.1
,
,
LANCASTER DEVELOPMENT
COMPANY
COURT OF COMMON PLEAS
CUMBERLAND COUNTY
Plaintiff
v.
NORRIS EDUCATIONAL SERVICES,
INC.
No.
Defendant.
AFFIDAVIT OF BUSINESS TRANSACTION
COMMONWEALTH OF PENNSYLVANIA: SS.
COUNTY OF LANCASTER
Allen C. Warshaw, Esquire, being duly sworn according to law, deposes and says he is
counsel for the Plaintiff, Lancaster Development Company, that he is duly authorized to make
this Affidavit; and that the transaction upon which this judgment is being entered is a business
transaction and not a consumer transaction.
(V,? b
Allen C. Warshaw, Esquire
Sworn to and subscribed
before me thi~+I, day
ofJ",L>' ,2000.
~d'~~
N tary Public
My Commission Expires:
Notarial Seal
Nora A. Starnes. Notary Public
Derry Twp" Dauphin County
My Commission Expires Aug. 14, 2000
Member, Pennsylvania AssociatiOn of Now."e,
1IBG1403S9J
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VERIFICATION
The undersigned, Timothy R. Norris, hereby verifies and states that:
1. He is the CEO of Norris Educational Services, Inc.;
2. The facts set forth in the foregoing pleading are true and correct to the best of his
knowledge, information, and belief; and
3. He is aware that false statements herein are made subject to the penalties of 18
Pa.C.S. 94904, relating to unsworn falsification to authorities.
Timothy R. Norris
Dated: ~ /1I ( () 0
#121716
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CERTIFICATE OF SERVICE
I, Melissa A. Swauger, Esquire, of the law firm of Shumaker Williams, P .C., hereby certify
that I served a true and correct copy of the foregoing Petition to Strike Off or in the Alternative Open
Confessed Judgment on this date by depositing a copy of the same in the possession of the United
States Mail, first-class, postage prepaid, addressed as follows:
Allen C. Warshaw, Esquire
DUANE, MORRIS & HECKSCHER LLP
305 North Front Street, 5th Floor
P.O. Box 1003
Harrisburg, PA 17108-1003
SHUMAKER WILLIAMS, P.C.
Dated: ct! It I (jJ
By ~t> a~d?v~
Melissa A. Swauger
P.O. Box 88
Harrisburg, PA 17108
(717) 763-1121
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LANCASTER DEVELOPMENT
COMPANY,
: IN THE COURT OF COMMON PLEAS OF
: CUMBERLAND COUNTY, PENNSYLVANIA
Plaintiff
v.
: No. 00-5134
NORRIS EDUCATIONAL SERVICES,
INC.,
Defendant
PRAECIPE FOR ENTRY OF APPEARANCE
TO THE PROTHONOTARY:
PLEASE enter the appearance of Laurence W. Dague, Esquire, MelissaA. Swauger, Esquire
and the law firm of Shumaker Williams, P.C. on behalf of Defendant, Norris Educational Services,
Inc., in the above-captioned matter.
SHUMAKER WILLIAMS, P.C.
Dated: f l ~ lal
By ~o. U<-Sv.JJJJe"M(
Laurence W. Dague LD. #19715
Melissa A. Swauger, LD. #82382
P.O. Box 88
Harrisburg, PA 17108
(717) 763-1121
Attorneys for Defendant Norris Educational
Services, Inc.
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CERTIFICATE OF SERVICE
I, Melissa A. Swauger, Esquire, of the law firm of Shumaker Williams, P. C., hereby certify
that I served a true and correct copy of the foregoing Praecipe for Entry of Appearance on this date
by depositing a copy of the same in the possession of the United States Mail, first-class, postage
prepaid, addressed as follows:
Allen C. Warshaw, Esquire
DUANE, MORRIS & HECKSCHER LLP
305 North Front Street, 5th Floor
P.O. Box 1003
Harrisburg, P A 17108-1003
SHUMAKER WILLIAMS, P.C.
Dated: IS'I d-.j<.l'C!
By ~~ u. S vJ(JJJJU.-
Melissa A. Swauger
P.O. Box 88
Harrisburg, PA 17108
(717)763-1121
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PRAECIPE FOR LISTING CASE FOR ARGUMENT
llt.lst be ~__x:ltten and subni1:ted in mlp]''''lte)
TO TilE PROTHONOTARY OF CUHBERLAND COUNTY:
Please list the within matter far the next Arganent: Court.
---------------------------------------------------------------------------------------
CAt>TI()N OF CASE
I entire caption llI.ISt be stated in full)
LANCASTER DEVELOPMENT CXJMPANY,
( Plaintiff)
vs.
NORRIS EDUCATIONAL SERVICES, INC.,
(Defemant)
. No_
00
Civil.
5134
2000
1. State matter to be argued (i.e., plaintiff's IIDtion for neIf trial. defendant's
dEm1t:rer to CQlpJaint. etc.):
Defendant's Petition to Strike Off or in the Alternatiive Open Confessed
Judgment
2. Identify CQUIJSel. who will argue case:
la) fur plaintiff:
ilddress:
Allen C. Warshaw, Esquire
DUANE, MORRIS & HECKSCHER
P.O. Box 1003
Harrisburg, PA 17108-1003
lb) for defendant:
AddJ:ess:
Melissa A. Swauger, Esquire
SHUMAKER WILLIAMS, P.C.
P.O. Box 88
Harrisburg, PA 171 08
3. I will notify all parties in writing Iri.ttIin bio days that this c:ase has
been listed far argmEnt.
4. ArgUnent COUrt Date:
October 11, 2000
DBtea:August 29, 2000
",~(.I. Q~S~ON~
Attorney for Defendant
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LANCASTER DEVELOPMENT
COMPANY,
: IN THE COURT OF COMMON PLEAS OF
: CUMBERLAND COUNTY, PENNSYLVANIA
Plaintiff
v.
: No. 00-5134
NORRIS EDUCATIONAL SERVICES,
INC.,
Defendant
JURY TRIAL DEMAND
NOW COMES Defendant Norris Educational Services, Inc., by its attorneys, Shumaker
Williams, P.C., and hereby demand a trial by jury in the above-captioned matter, pursuant to
Pa.R.Civ.P.2960.
SHUMAKER WILLIAMS, P.C.
Dated: 7\ \<6'(at
By\'\U~G,~~
Laurence W. Dague LD. #1 715
Melissa A. Swauger, LD. #82382
P.O. Box 88
Harrisburg, PA 17108
(717)763-1121
Attorneys for Defendant Norris Educational
Services, Inc.
: 133395
/
"
,
CERTIFICATE OF SERVICE
I, Melissa A. Swauger, Esquire, of the law firm of Shumaker Williams, P.C., hereby certifY
that I served a true and correct copy of the foregoing Jury Trial Demand on this date by depositing
a copy ofthe same in the possession ofthe United States Mail, first-class, postage prepaid, addressed
as follows:
Allen C. Warshaw, Esquire
DUANE, MORRIS & HECKSCHER LLP
305 North Front Street, 5th Floor
P.O. Box 1003
Harrisburg, PA 17108-1003
SHUMAKER WILLIAMS, P.C.
Dated:
1\~~\
By ~~ (i,&W+
Melissa A. Swauger
P.O. Box 88
Harrisburg, P A 171 08
(717) 763-1121
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LANCASTER DEVELOPMENT: IN THE COURT OF COMMON PLEAS OF
COMPANY, : CUMBERLAND COUNTY, PENNSYLVANIA
Plaintiff
No. 00-5134 CIVIL TERM
V.
NORRIS EDUCATIONAL
SERVICES INC,
Defendant
IN RE: DEFENDANT'S PETITION TO STRIKE OFF OR. IN THE
ALTERNATIVE. OPEN CONFESSED JUDGMENT
AND NOW, ~ 2- ~ ,2001, upon careful consideration of the
briefs submitted by both parties, Defendant's Petition to Open Confessed
Judgment is hereby granted.
By the Court,
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Allen C. Warshaw, Esquire
Jeffrey p, Ouellet, Esquire
DUANE, MORRIS & HECKSCHER LLP
305 North Front Street, 5th Floor
Harrisburg, PA 17108
Attorneys for Plaintiff
Laurence W. Dague, Esquire
Melissa A. Swauger, Esquire
SHUMAKER & WILLIAMS
P.O. Box 88
Harrisburg, PA 17108
Attorneys for Defendant
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LANCASTER DEVELOPMENT
COMPANY,
Plaintiff
: IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
No. 00-5134 CIVIL TERM
V.
NORRIS EDUCATIONAL
SERVICES INC,
Defendant
IN RE: DEFENDANT'S PEnnON TOSJRIKE OFF OR. IN THE
ALTERNATIVE. OPEN GONFESi5ED JUDGMENT
OPINION
HOFFER. P,J.:
In this opinion, the Court addresses Norris Educational Services, Inc.'s,
Petition to Strike Off or, in the alternative, Open Confessed Judgment. On or
about September 28, 1989, Lancaster Development Company (hereinafter
"Lancaster Development") entered into an office lease agreement (hereinafter
"Lease") with Norris Educational Services "hereinafter Norris", whereby Norris
leased the premises known as 4909 Louise Drive, Suites 108-113 from
Lancaster Development. The term of the lease was for twenty (20) years
beginning August 1, 1990 and ending July 31,2010.
From February 18, 1989 through July 13, 1994, a series of four lease
amendments were executed between Lancaster Development and Norris. Of
particular interest is the fourth lease amendment executed on July 13, 1994,
which increased the monthly rent to six-thousand dollars or 21.5% of the revenue
~
generated from the activities on the premises for the month ending thirty (30)
days before the due date of the monthly rent installment.
On July 21, 2000, Lancaster Development filed a Notice, Confession of
Judgment for Money in the amount of $852,669.63 plus attorney fees and costs.
Norris subsequently filed a Petition to Strike Off or, in the alternative, Open
Confessed Judgment, pursuant to Pa. R. Civ. P. 2959.
The standard of ascertaining whether a confessed judgment should be
opened is when the entity seeking to have it opened acts promptly, alleges a
meritorious defense, and presents sufficient evidence of that defense to require
submission of the issues to the jury. See Dollar Bank. Fed. Sav. Bank v.
Northwood Cheese Co.. Inc.. 431 Pa. Super 541,546,637 A.2d 309, 311 illm:.
den., 539 Pa. 692, 653 A.2d 1231 (1994). Another well-established principle in
Pennsylvania jurisprudence is that the standard of sufficiency of the evidence
which a court must employ to open a confessed judgment "is that of the directed
verdict viewing all the evidence in the light most favorable to the petitioner and
accepting as true all evidence and proper inferences therefrom supporting the
defense while rejecting adverse allegations of the party obtaining the judgment."
Weitzman v. Ulan, 304 Pa. Super 204,209,450 A.2d 173, 176 (1982).
Pursuant to Pennsylvania Rule of Civil Procedure 2959, a petition to open
judgment must be filed within thirty (30) days after written notice is served upon
the petitioner. In the instant case, Norris's petition was promptly filed on August
14,2000, after service of Lancaster Development's complaint and confession of
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judgment for money. Lancaster Development filed their notice, confession for
judgment for money on July 21,2000.
In order to meet the standard established in Dollar Bank, a party seeking to
open a confessed judgment must allege a meritorious defense. While Norris
alleged five separate defenses, we need only determine if Norris alleged one
meritorious defense. One defense Norris raised was that Lancaster
Development's confessed judgment in the amount of $720,000.00 for future rents
is a penalty damage that is unlawful and unreasonable because Lancaster
Development possesses the leased premises, and not Norris.
Pennsylvania caselaw provides that a landlord cannot forfeit a lease for
default by the tenant, and at the same time enter judgment against the tenant for
the rent accruing after the eviction as if the lease were in full force and effect to
the end of the term. See Homart Development Co. v. Sarenci, 443 Pa.Super
538, 662 A.2d 1092 (1995). A landlord "cannot eject the tenant and hold him
responsible for rent accruing under the lease after the tenant has been evicted."
ld. at 556, 662 A.2d at 1100. As such, a landlord is permitted to eject a tenant,
and at the same time enter judgment for the rent accrued when the tenant was
evicted, but the landlord cannot recover both the possession and the rent for the
balance of the term. Id. at 556, 662 A.2d at 1100, citing Grakelow v. Kidder, 95
Pa.Super 250 (1928). Moreover, a landlord can either accelerate for future rent
accruing under the lease or eject the tenant, but not both. Pierce v. Hoffstot, 211
Pa. Super 380,384,236 A.2d 828, 830 (1967).
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On November 19, 1996, Norris filed a voluntary petition in the United
States Bankruptcy Court in the Middle District of Pennsylvania. Under the lease,
instituting a proceeding under the Bankruptcy Act is an event of default.
However, according to Norris, Lancaster Development did not terminate the
lease based on the bankruptcy filing. Because Norris owed Lancaster
Development past due rent, a dispute originated between Lancaster
Development and Norris regarding the amount of late charges due under the
lease. As such, counsel for Norris and counsel for Lancaster Development met
to discuss the amount of rent and late charges due under the lease. Lancaster
Development informed Norris that it did not want to continue the lease and an
oral agreement was reached between the two parties. According to Norris, the
lease would be terminated effective immediately and Norris would be obligated to
leave the premise on or before June 30, 2000. Norris vacated the premises on
June 30, 2000.
Pursuant to Weitzman, in viewing all the evidence in the light most
favorable to the defendant and accepting as true all the evidence and proper
inferences therefrom supporting the defense, while rejecting adverse allegations
of the party obtaining judgment, the court agrees that Norris has alleged a
meritorious defense, and has presented sufficient evidence of that defense to
require submission of the issues to the jury.
Because this Court has granted Norris's petition to open confessed
judgment. we need not address the petition to strike confessed judgment.
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