HomeMy WebLinkAbout00-07532
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BARRY L PAGLIARO,
: IN THE COURT OF COMMON PLEAS
: CUMBERLAND COUNTY, PENNSYLVANIA
Plaintiff
v.
: NO. (}(). 'JS3:L ~ T~
YOUR GOLF SHOP, INe.,
Defendant
: CIVIL ACTION - LAW
: IN EJECTMENT
NOTICE UNDER RULE 2973.3 OF JUDGMENT AND EXECUTION THEREON
TO: YOUR GOLF SHOP, INe.
3401 Hartzdale Drive
Suite B
Camp Hill, P A 17011
A judgment for possession of real property and attorney's fees of $1 ,000.00 plus costs have
been entered against you and in favor of the Plaintiff without prior notice and hearing based on a
confession of judgment contained in a Lease or other document allegedly executed by you. The
court has issued and the sheriff has served a writ of possession which directs the sheriff to remove
you from the possession ofthe real property.
You may have legal rights to defeat the judgment or to prevent your being removed from the
property or to regain possession of the property if you have been removed, if you did not voluntarily,
intelligently and knowingly give up your constitutional right to notice and hearing prior to the entry
of judgment or if you have defenses or other valid objections to the judgment ANY PETITION
SEEKING RELIEF FROM THE JUDGMENT AND TO REGAIN POSSESSION MUST BE FILED
WITHIN THIRTY (30) DAYS AFTER THE DATE ON WHICH THIS NOTICE IS SERVED ON
YOU OR YOU MAY LOSE YOUR RIGHTS.
If you have been removed from the property without notice or the opportunity for a hearing,
you have a right to a prompt court hearing if you claim that you did not voluntarily, intelligently and
knowingly give up your rights to notice and hearing prior to entry of the judgment If you wish to
exercise this right, you must inunediately fill out and sign the request for hearing which accompanies
the writ of possession and deliver it to the Sheriff of Cumberland County at the Cumberland County
Courthouse, One Courthouse Square, Carlisle, Pennsylvania, 17013.
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YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT
HAVE A LAWYER, OR CANNOT AFFORD ONE, GO TO OR TELEPHONE THE
OFFICE SET FORTH BELOW TO FIND OUT WHERE YOU CAN GET LEGAL HELP.
CUMBERLAND COUNTY LAWYER REFERRAL SERVICE
Cumberland County Bar Association
2 Liberty Avenue
Carlisle, P A 17013
(717) 249-3166
Respectfully submitted,
CALDWELL & KEARNS
By:
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Charles J. DeHart, III, Esquire
Attorney ill No. 15617
3631 North Front Street
Harrisburg, Pennsylvania 17110-1533
(717) 232-7661
Attorney for Plaintiff, Barry Pagliaro
Date:
005236/16432
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BARRYL PAGLIARO,
: IN THE COURT OF COMMON PLEAS
: CUMBERLAND COUNTY, PENNSYL VANIA
Plaintiff
v.
: NO. 07)- ?S3J.., ~ T.........
YOUR GOLF SHOP, INe.,
Defendant
: CNIL ACTION. LAW
: IN EJECTMENT
NOTICE
TO: YOUR GOLF SHOP, INe.
A judgment by confession has been entered against you in Court. If you wish to open the
judgment or otherwise attach the claim set forth against you in the following pages, you must
take action as soon as possible after this Complaint and Notice are served, by entering a written
appearance personally or by an attorney, and filing in writing with the Court your defenses or
objections to the judgment entered against you. You are warned that if you fail to timely do so,
you may be foreclosed and not able to do so at some alternate date and execution may be issued
against you without further notice. You may lose money or property or other rights important to
you.
CALDWELL & KEARNS
By: fi)~
Charles J. eHart, Ill, EsqUire
Attorney for Plaintiff, Barry Pagliaro
YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT
HAVE A LAWYER OR CANNOT AFFORD ONE, GO TO OR TELEPHONE THE
OFFICE SET FORTH BELOW TO FIND OUT WHERE YOU CAN GET LEGAL HELP.
CUMBERLAND COUNTY LAWYER REFERRAL SERVICE
Cumberland County Bar Association
2 Liberty Avenue
Carlisle, PA 17013
(717) 249.3166
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BARRY L PAGLIARO,
: IN THE COURT OF COMMON PLEAS
: CUMBERLAND COUNTY, PENNSYLVANIA
Plaintiff
v.
: NO. tJ.1J. 7:532. ~ TL<-
YOUR GOLF SHOP, INC.,
Defendant
: CIVIL ACTION - LAW
: IN EJECTMENT
COMPLAINT
CONFESSION OF JUDGMENT FOR POSSESSION
OF REAL PROPERTY PURSUANT TO PA.R.C.P. 2970
AND NOW comes the Plaintiff, Barry L Pagliaro, by and through his attorneys, Caldwell
& Kearns, and does file the following Complaint against Defendant, Your Golf Shop, Inc.,
stating and in support thereof the following:
L Plaintiff, is a landlord, having sole proprietorship existing under the laws ofthe
Commonwealth of Pennsylvania with his principle place of business located at
101 Banbury Circle, Hummelstown, Pennsylvania.
2. Defendant, Your Golf Shop, Inc., is a company duly incorporated and existing
under the laws of the Commonwealth of Pennsylvania, with its principle place of
business located at 3401 Hartzdale Drive, Suite B, Camp Hill, Pennsylvania.
3. On or about March 30, 1998, Plaintiff, Barry L Pagliaro did enter into a lease
agreement with Defendant, Your Golf Shop, Inc. for the lease of property located
at Suite B, 3401 Hartzdale Drive, Cumberland County, Pennsylvania. A true and
correct copy of said lease agreement is attached hereto and marked Exhibit "A"
and incorporated in this Complaint by reference.
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4. The lease agreement was commenced on May 1,1998, and ran for a period offive
years, with the option to extend the lease for an additional five years.
5. The lease agreement did obligate the Defendant to pay the sum of Thirty. Two
Thousand One Hundred Forty-Nine Dollars and Thirteen Cents ($32,149.13) on
May 1, 2000, or Two Thousand Six Hundred Seventy-Nine Dollars and Nine
Cents ($2,679.09) every month starting on May 1, 2000 and continuing through
Apri130, 2001, at which time the amount ofthe rent owed under the lease
agreement would increase to Thirty-Two Thousand Nine Hundred Fifty-Two
Dollars and Eighty-Five Cents ($32,952.85) from May 1, 2001 through Apri130,
2002, and Thirty-Three Thousand Seven Hundred Seventy-Six Dollars and Sixty-
Seven Cents ($33,776,67) from May 1, 2002 through April 30, 2003.
6. The lease agreement has not been assigned.
7. Judgment for monetary damages or an ejectment has not been entered in this or
any other jurisdiction.
8. This judgment has not been entered against a natural person in connection with a
residential lease, but against a corporate defendant in connection with a
commerciallease.
9. The lease agreement stipulates that the Defendant shall incur a ten percent (10%)
late fee on the principle owed for any payment made after ten (10) days of the due
date.
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10. The Defendant did fail or refuse to tender the monthly payment on the aforesaid
obligation on September 1, 2000.
11. The Defendant has failed to make any further monthly payment since this date.
12. As provided in the lease agreement, Defendant is in default of said agreement ten
(10) days after September 1,2000.
13. Plaintiff provided Defendant notice of this default on September 21, 2000, a copy
of which is attached hereto and marked Exhibit "B", and incorporated in this
Complaint by reference.
14. A demand for possession of the lease of premises is made as authorized by the
warranty and confession as set forth in section 15.2(a) ofthe lease agreement.
15. A demand for judgment of ejectment is made as authorized by the lease and the
Pennsylvania Landlord and Tenant Act
16. A reasonable attorney fee is demanded as authorized by the warranty of
$1,000.00.
17. The said notice informed the Defendant of the amount in default and demanded
payment of this notice within ten (10) days.
18. The Defendant did fail or refused to comply with the notice of September 21,
2000.
19. Plaintiff has demanded, but Defendant has failed and/or refused to turn over
possession ofthe property to the Plaintiff.
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WHEREFORE, Plaintiff, Barry L Pagliaro, demands judgment by confession for
possession of the leased premises located at 3401 Hartzdale Drive, Suite B, Camp Hill,
Cumberland County, Pennsylvania.
Respectfully submitted,
Dated:
00536/] 6368
)01'1-';'"
By: C -d.'-~----
Charles J. DeH , III, EsqUIre
Attorney ID# 15617
3631 North Front Street
Harrisburg, PA 17110.1533
(717) 232-7661
Attorney for Plaintiff, Barry L Pagliaro
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BARRY L. PAGLIARO,
: IN THE COURT OF COMMON PLEAS
: CUMBERLAND COUNTY, PENNSYLVANIA
Plaintiff
v.
: NO. fHJ ~ 7!') 3.2.. CwJ. T..v-..
YOUR GOLF SHOP, INC.,
Defendant
: CNIL ACTION - LAW
: IN EJECTMENT
CONFESSION OF JUDGMENT FOR
POSSESSION OF REAL PROPERTY
Pursuant to the authority contained in the warrant of attorney as contained in the Lease
Agreement, I appear for the Defendant, Your Golf Shop, Inc., and confess Judgment in ejectment
in favor of the plaintiffs against the Defendant for possession of the real property described as
follows: Real estate located at 3401 Hartzdale Drive, Suite B, Camp Hill, Pennsylvania.
An attorney's fee of$I,OOO.OO is demanded as authorized.
Date:
2,)-ql/
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Charles J. D art, ill, EsqUire
Attorney for Defendant, Your Golf Shop, Inc.
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VERIFICATION
I, Barry L Pagliaro, verify that the averments in the foregoing Complaint are true and
correct. I understand that false statements herein are made subject to the penalties of 18 Pa. C.S.
4904, relating to unsworn falsification to authorities.
By:
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LEASE AGREEMENT
LANDLORD: BARRY L PAGLIARO
TENANT: YOUR GOLF SHOP INC.
C/O MARK PARTHEMER, ESQUIRE
2 N. 2ND STREET, 7TH FLOOR, HARRISBURG, PA 17101
BUILDING LOCATION: SUITE B, 3401 HARTZDALE DRIVE
CAMP HILL, PA 17011
DATE: APRIL 27, 1998 - OCCUPANCY
MAY 1, 1998 - RENT COMMENCEMENT
BUILDING FIT OUT:
LANDLORD SHALL PROVIDE THE FOLLOWING:
L Painted walls.
2. New carpet and tiled floors
3. Separate heating, ventilation and air conditioning with
individual metering.
4. New ceiling tile.
5. Adequate fluorescent, ceiling lighting.
6. Electrical outlets to building code.
NOTE:
LANDLORD SHALL APPLY FOR PERMIT NECESSARY TO
CHANGE USE OF PREMISES FROM RETAURANT TO
RETAIL. THIS LEASE NULL AND VOID IF USE IS NOT
GRANTED.
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LEASE AGREEMENT
This lease made on the 26th day of March, 1998, by and between Barry L. Pagiliaro herein called
"Landlord", and Your Golf Shop, Inc., herein called "Tenant".
SUMMARY OF LEASE PROVISION
L Notice Address:
Landlord:
BARRY L P AGILIARO
101 BANBURY COURT
HUMMELSTOWN, PA 17036
Tenant: Your Golf Shop, Inc.
C/O Mark Parthemer, Esq.
2 N. Second Street, 7th Floor,
Harrisburg, PA 17101
copies of all notices to be sent to:
ABOVE
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2. Tenant's Trade Name:YOUR GOLF SHOP, INC.
3.
Tenant's Building Name and Address:
3401 Hartzdale Dr., Suite B,
Camp Hill, PA 17011
4. Tenant's building Number: Suite B, 3401 Hartzdale
between Global Video and Enterprise Car Rental
5. Square Footage of Ten ant's store: 3,600
6. Lease Commencement Date: May 1, 1998
7. Initial Lease Term: Five (5) Years
Year 1
Year 2 '
Year 3
Year 4
Year 5
$30,600.00 or $2,550.00 per month + CAM
$31,365.00 or $2,613.75 per month + CAM
$32,149.13 or $2,679.09 per month + CAM
$32,952.85 or $2,746.07 per month + CAM
$33,776.67 or $2,814.72 per month + CAM
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Option to Extend Term:
Option to extend for five (5) years with same rental schedule.
Year 6
Year 7
Year 8
Year 9
Year 10
$34,621.09 plus CAM
$35,486.62 plus CAM
$36,373.79 plus CAM
$37,283.13 plus CAM
$38,215.21 plus CAM
8. Initial monthly tax payment:
Included in CAM
9. Initial monthly building operation costs:
Included in CAM
10.
Initial monthly insurance premium payment:
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Included in CAM
11. Security Deposit:
$2,550.00 - to be returned after initial one year period, or credited to rent
12. Use:
The use will be for retail/wholesale sale and repair of golf equipment an related
accessories, possibly golf travel packages.
13. Option to break lease (early out):
If for any reason the Tenant wishes to vacate at either the end of the first (1 "') or third (3rd) year of
this lease they may do so by giving written notice by registered mail, one hundred and eighty
(180) prior to the anniversary date (May 1) of their intention to do so. If they indeed vacate they
will pay the sum of the undepreciated (on a straight-line basis) amount of Tenant work as outlined
on page 1, of this document
Page 3 of 22
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f\RTICLE 1
GRANT AND TERM
PREMISES. Section L1
a. In consideration of the rents, covenants, and agreements herein reserved and contained on the
part of Tenant to be observed and performed, Landlord does hereby lease and demise unto
Tenant and Tenant rents from Landlord the portion of the building, which portion is hereafter
referred to as the "Premises", shown as the area crosshatched and.1abe1ed Premises on the site
plan labeled Exhibit "A", attached hereto and made a part hereof, containing the dimensions
and approximate square feet of floor area and known as the building and bay set forth in the
Summary. Floor area is measured from the exterior of the outside walls of the building to the
center of the intetior walls of the Premises.
b. The use and occupation by Tenant of the Premises shall include the use in common with
others entitled thereto of the common areas, parking areas, service roads, loading facilities
and sidewalks substantially as shown on Exhibit "A", and other facilities as may be designated
from time to time by Landlord, subject to the terms and conditions of this lease and to
reasonable rules and regulations for the use thereof as prescribed from time to time by $
Landlord.
c. The Premises are demised subject and subordinate to all encumbrances, easements, reciprocal
easement agreements, if any, restrictions, contractual obligations, covenants, zoning laws and
governmental or any other regulations, now or hereafter affecting or governing the building.
d. This Lease Agreement and all amendments thereto shall herein collectively be referred to as
the "Lease".
TERM Section 1.2
a. The term of this Lease shall commence when Tenant takes possession.
b. The term of this Lease shall expire on the date which is the number of years, months and days,
hereinafter referred to as the "Lease Term", subsequent to the Lease Commencement Date
as is set forth in the Summary. Said expiration date is hereinafter referred to as the "Lease
Expiration Date". This Lease Term shall include any extensions of same as may be provided
for herein.
LEASE YEAR
Section 1.3
a. The term "lease year" as used herein shall mean a period of twelve (12) consecutive full
calendar months. The first lease year shall commence on the Lease Commencement Date if
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the Lease Commencement Date shalt occur on the first day of a calendar month; if not, then
the first lease year shall commence on the first day of the calendar month next following the
Lease Commencement Date and the first lease year shall include the additional days from the
Lease Commencement Date through the first day of the first lease year. Each succeeding
lease year shall commence upon the anniversary date of the first lease year.
ARTICLE II
RENT
MINIMUM RENT Section 2.1
a. Tenant shall pay to Landlord fixed annual minimum rent hereinafter referred to as "Minimum
Rent", in equal monthly installments in advance, on the first day of each calendar month,
throughout the term of this Lease, without any prior demand and without any deduction or
set-off; at the office of Landlord or at such other place as Landlord may designate in writing.
Minimum Rent shall be as set forth in the Summary.
b. The first monthly installment of Minimum Rent shall be paid on the date of execution hereof .,
and shall be applied to the Minimum Rent due for the first full month of the lease term.
Landlord shall subsequently bill Tenant for the first partial month, if any, of the lease term (in
the event the Lease Commencement Date is not the first day of a month) such proportion of
the monthly installment as the number of days from the Lease Commencement Date through
the last day of said month bears to the total number of days in said month, and such monthly
installment shall be due on the first day of the next ensuing month, along with the next
monthly installment, and subsequent monthly installments shall be due in advance on the first
day of each ensuing calendar month of the Lease Term.
ADDITIONAL RENT
Section 2.2
a. Tenant shall pay as additional rent any money required to be paid pursuant to Tenant's
monetary obligations hereunder, including but not limited to real estate taxes, insurance and
Building Operating Costs as further defined herein, whether or not the same be designated
"additional rent". If such amounts or charges are not paid at the times provided in the Lease,
they shall nevertheless, if not paid when due, be collectible as additional rent with the next
installment of rent due hereunder, but nothing herein contained shall be deemed to suspend
or delay the payment of any amount of money or charge at the time the same becomes due
and payable hereunder, or limit any other remedy of Landlord. All obligations hereunder shall
survive the termination or expiration ofthe term of this lease.
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,LATE CHARGES Section 2.3
a. Tenant hereby acknowledges that late payment by Tenant to Landlord or rent and other sums
due hereunder will cause Landlord to incur costs not contemplated by this Lease, the exact
amount of which will be extremely difficult to ascertain. Such costs include but are not
limited to, processing and accounting charges, and late charges which may be imposed on
Landlord by the terms of any mortgage or Deed of Trust, covering the Premises.
Accordingly, ifany installment of rent or any other sum due from Tenant shall not be received
by Landlord or Landlord's designee within ten (10) days after such amount shall be due,
Tenant shall pay to Landlord a late charge equal to ten (10%) percent of such overdue
amount and thereafter such overdue amount shall accrue interest at the rate of fifteen percent
(15%) per annum until paid in full. The parties hereby agree that such late charge represents
a fair and resonable estimate of the costs Landlord will incur by reason oflate payment by
Tenant. A~tance of such late charge by Landlord shall in no event constitute a waiver of
Tenant's default with respect to such overdue amount, nor prevent Landlord from exercising
any of the other rights and remedies granted hereunder.
ARTICLE ill
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INITIAL CONSTRUCTION AND SUBSEOUENT ALTERATIONS
LANDLORD ALTERATIONS
Section 3.1
a. Notwithstanding anything set forth in this Lease to the contrary, Landlord reserves the right
any time either before, during or after the initial construction thereof, one or more times, for
itself and any owner or owners of the Building, to:
I. build additional building(s), parking facilities and other improvements and to change
the location or character of or reconfigure all building(s), improvements and parking
facilities;
2. make alterations, expansions or additions to the Building and common areas and/or
to build an additional story or stories on the building(s);
3. add additional entrances and exits from the building(s);
4. provide for additional landscaping;
5. add or change signs to the building(s) and/or facilities surrounding the building(s);
6. make changes required by state, federal or local authorities and;
7. make changes which upgrade or enhance the appearance of the building(s) or other
improvements.
TENANT ALTERATIONS Section 3.2
a. Tenant shall not make any alteration, addition, repair or improvement to the Premises, except
as otherwise permitted herein, without the prior written approval of Landlord. Any
equipment, machinery, or utilities required by Tenant in addition to those provided by
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Landlord shall be installed with the prior written approval of Landlord. All such alterations,
additions, repairs, improvements and installations if permitted, shall be at the sole cost and
expense of Tenant. Upon the Lease Expiration date, Tenant shall at Landlord's election,
restore the Premises to the condition existing prior to such alteration or improvements, at
Tenant's sole cost and expense, ordinary wear and tear excepted.
ARTICLE IV
CONDITIONS OF USE OCCUPANCY AND CONDUCT
OF BUSThffiSS BY TENANT
USE OF PREMISES Section 4.1
a. Tenant shall open for the full conduct of business and occupy Premises on or before the date
set forth in the Summary, solely for the purpose and use set forth in the Summary, and shall
conduct continuously in the Premises the business above stated under the trade name set forth
in the Summary. Tenant shall not use OF permit, or suffer the use ofthe Premises for any
other business or purposes.
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COMPLIANCE WITH LAWS AND REGULATIONS
Section 4.2
a. General Obligations. Tenant shall at all times maintain and conduct its business, at Tenant's
sole cost and expense, insofar as the same relates to Tenant's use and occupancy of the
Premises, in a lawful manner, and in strict compliance with all federal, state and local
governmental laws, rules, regulations, the Board of Health, and orders and provisions of
insurance underwriters applicable to the business of Tenant conducted in and upon the
Premises, now in force or which may hereafter be in force.
b. Compliance with Environmental Laws
I. Tenant shall comply with all applicable federal, state and local environmental laws,
ordinances, orders or regulations affecting the Premises, the environmental laws,
ordinances, orders or regulations affecting the Premises, the operation of Tenant's
business at the Premises, the use of the Premises, or the removal of any hazardous
substances or nonhazardous substances therefrom, as now or hereafter defined.
Notwithstanding anything in this Lease to the contrary, Tetmat shall not without
Landlord's prior written consent and subject to reasonable conditions imposed by
Landlord, place or permit on the Premises or otherwise use, store, manufacture,
process or dispose of any oil, grease or hazardous substances regulated by public
authority.
2. Tenant shall permit no on-site disposal of any oil, grease, or hazardous substances.
No hazardous or industrial wastes, contaminated substances or those resulting from
manufacturing or processing shall be deposited in containers provided for trash
removal. All waste material (including Tenant's construction or remodeling wastes)
other than ordinary sanitary commercial trash shall be removed from Premises and
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properly disposed ofin comj:1liance with all applicable laws at Tenant's sole cost and
expense.
3. Tenant does hereby agree to protect, defend, indemnifY and hold Landlord harmless
of, from and against all claims, actions, liens, demands, costs, expenses, fines,
judgements, legal costs and attorney's fees resulting from or arising by reason of the
following: (i) any spills or contamination of air, soil or water by oil, grease or
hazardous substances at or around the Premises, if caused by Tenant, Tenant's agents,
or Tenant's operation, or upon removal therefrom; (ii) the violation of any
environmental laws or regulations; or (iii) the violation of any provisions of Section
4.2.
4. Upon ten (10) days prior written request from Landlord, and upon surrender of the
Premises to Landlord, Tenant shall execute, acknowledge and deliver to Landlord a
written statement in form satisfactory to Landlord certifying that there are no
hazardous substances on the Premises, and that Tenant has not disposed of any oil,
grease or hazardous substance at the Premises and that any such substances used,
processed or generated at the Premises have been disposed of properly, and that there
exists no violations of any environmental laws or regulations.
ARTICLE V
MAINTENANCE REPAIRS AND SURRENDER
BY LANDLORD
Section 5.1
a. Subject to reimbursement as provided in Article 7.2 below, Landlord agrees to keep in good
order, condition, and repair the exterior, foundations, and structural portions of the building
of which the Premises is a part (except doors, glass, and glass windows), including heating
and ventilation systems, air conditioning, gutter, downspouts, and all services, pipes, lines,
and mains leading to and from the Premises, and to perform all roof reapirs and replacements
as the same may be required, from time to time. Notwithstanding the foregoing, Landlord
shall not be responsible for repair of any damage to the aforesaid caused by any acts or
negligence of Tenant, its employees, agents, licensees, or contractors. Landlord shall not be
responsible for making any plumbing, electrical, or mechanical repairs or replacements or
other repairs of any kind upon the Premises except as may be expressly set out in this lease.
BY TENANT Section 5.2
a. Tenant agrees from and after the date that possession of the Premises is delivered to Tenant,
and until the end of the Lease Term that it will be responsible for all repairs, maintenance, and
replacements to the Premises other than those specifically required to the performed by
Landlord in Section 5.1, including but not limited to the interior and exterior portions of all
doors, windows, plate glass, and show cases surrounding the Premises; the mechanical,
plumbing, electrical and systems, meters, partitions and all other fixtures, appliances, and
facilities furnished by Tenant or Landlord. Tenant shall not, however, be responsible for
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repair of any damage caused by any act or negligence of Landlord, its employees, contractors,
or agents. Tenant shall not be required to make structural repairs or alterations which may
be required by governmental rules, orders, or regulations or insurance companies unless
resulting from the business operations maintained by Tenant in the Premises. All such work
shall be performed by Tenant in a good and workmanlike manner in compliance with all
applicable laws, codes, and regulations and subject to such reasonable requirements as
Landlord may impose. Landlord shall have the right to post the Premises with a notice of a
non"liability in connection with any such work performed by or on behalf of Tenant.
b. Landlord shall acquire and maintain a service contract for the r~pair and maintenance of the
heating, ventilation and air conditioning systems. Landlord shall make all repairs required for
the heating, ventilation and air conditioning system. Tenant shall reimburse Landlord its
prorata share of the costs of said maintenance contract and repair and replacement which shall
be billed in Landlord's statement set forth in Section 7.3. Tenant shall acquire and maintain
a service contract for any ventilation hood and related ducts it may install throughout the
Lease Term.
c. The plumbing facilities shall not be used: for any other purpose than that for which they are
constructed, and no foreign substance of any kind shitll be thrown therein, and the expense
of any breakage, stoppage, or damage resulting from a violation of this provision shall be born $
of Tenant. .
d. In the event that any governmental regulations from time to time require emergency lighting
to be installed in the Premises, the installation and maintenance of same, including providing
of battery power, shall be the responsibility of Tenant.
e. If Tenant refuses or neglects to repair property as required hereunder and to the reasonable
satisfaction of Landlord, Landlord may make such repairs without liability to Tenant for any
loss or damage that may accrue to Tenant's merchandise, fixtures or other property or to
Tenant's business by reason thereof, and Tenant shall pay Landlord's costs for making such
repairs plus ten (10%) percent overhead, as additional rent. If Landlord fails to repair or
replace any items listed as Landlord's responsibility as set forth in this Lease within thirty (30)
days or commence to repair or replace within thirty (30) days, Tenant may cause such repairs
to be made and Landlord shall reimburse Tenant for said repairs. Tenant must first notifY
Landlord in writing of the need of repair and/or replacement.. In the event repairs and/or
replacement cannot be completed within thirty (30) days, then Landlord shall use its best
efforts in completing such repair and/or replacement in a reasonable amount oftime.
SURRENDER OF PREMISES
Section 5.3
a. At the expiration of the Lease Term, Tenant shall surrender the Premises in the same
condition as existed upon the completion of all Tenant's Work, ordinary wear and tear
excepted. All alterations, additions, improvements, and fixtures, including lighting fixtures,
ducts, controls, diffusers, filters or other equipment for distribution of heating and cooling,
and other personal property other than trade fixtures, which have been installed by, for and
Page 9 of22
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on behalf of Tenant, upon the Premises, and which in any manner are attached to the floors,
walls or ceilings, shall become property of Landlord upon the termination of the Lease, and
shall remain upon and be surrendered with the Premises as a part thereof without disturbance,
molestation or injury. Any tile, linoleum, carpet or floor covering of similar character shall
become property of Landlord upon the termination of the Lease. During the Lease Term,
Tenant shall not remove or damage the above described improvements and fixtures without
the prior written consent of Landlord. Tenant's obligation to observe or perform this
covenant shall survive the expiration or other termination of the Lease Term.
ARTICLE VI
TAXES
LANDLORD'S RESPONSffiILITY Section 6.1
a. Subject to reimbursement as hereinafter provided, Landlord shall be responsible for the
payment of all general and special taxes and assessments levied on the Building and all
improvements constructed thereon, including common areas located thereon, all assessments
for local improvements, water and sewer rents not based on consumption, and all impositions $
nonrecurring as well as recurring, special or extraordinary, foreseen and unforeseen, and any
new taxes which may be levied or assessed on Landlord or the Building based upon gross
rentals in lieu of or in addition to the current real property taxes (for the purposes of
determining such new tax and other taxes resulting from the alteration of the methods of
taxation, the Building shall be deemed to be Landlord's sole property), and other
governmental charges which may be lawfully charged, assessed, or imposed upon the real
property and improvements now or hereafter constructed thereon and upon the common area,
hereafter collectively referred to as "real estate taxes". However, if authorities having
jurisdiction assess real estate taxes which Landlord deems excessive, Landlord may defer
compliance therewith to the extent permitted by the state laws. Landlord may in good faith
contest all real estate tax assessments.
TENANT'S ADDITIONAL RENTIPRO RATA SHARE DEFThffiD
Section 6.2
a. Tenant shall pay during each lease year during the Lease Term, as additional rent, its pro rata
share, as hereafter defined, ofall of the above described real estate taxes. The term "pro rata"
when utilized with respect to Tenant's share of any monetary obligations hereunder shall be
computed by multiplying the total amount of such obligation by fraction, the numerator of
which shall be the square footage of the Premises and the denominator of which shall be the
total leasable square footage ofimprovements constructed on the Building. Tenant shall pay
such pro rata share of real estate taxes in the manner set forth in Sections 7.2 and 7.3 herein.
ARTICLE VII
Page 10 of 22
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BUILDIN6 OPERATING COSTS
BUILDING OPERATING COSTS DEFThffiD
Section 7.1
a. "Building Operating Costs" as used herein, shall mean all costs and expenses of any kind or
nature which are necessary, and are customarily incurred in operating and maintaining the
Building as determined by Landlord and which are, as determined by Landlord, reasonable
and appropriate for the best interest of the Building, including, without limitations: all costs
and expenses of operating, maintaining, repairing, replacing, lighting, cleaning, painting,
stripping, and policing all common areas and all improvements thereto (including cost of
uniforms, equipment, and all employment taxes); costs of utilities for the common areas; costs
of all roof repairs; costs of all supplies; insurance premiums for liability insurance for personal .
injury, death, and property damage; costs of workmen's compensation insurance covering
personnel and fidelity bonds for personnel; costs of insurance against liability for defamation
and claims of false arrest occurring in and about the common areas; costs for removal of
snow, ice, garbage, and debris; monitoring offire and security systems for common areas;
costs for regulation oftraffic; costs and expenses of replacement of paving, curbs, walkways,
landscaping, drainage and lighting facilities for the common areas; costs and expenses of
planting, replanting, and replacing flowers and shrubbery and planters; all costs of labor,
including wages and other payments including disability insurance, payroll taxes, welfare, and $
all legal fees and other costs or expenses incurred in resolving any labor disputes; cost and
expenses for the rental of music program services and loudspeaker systems, including
fumishing electricity therefore; sprinkler maintenance costs; costs for repair and replacements
and costs of service contracts for the heating, ventilation and air-conditioning systems as set
forth in Section 5.2(b), depreciation of equipment used in operating and maintaining the
common areas and rent paid for leasing any such equipment; depreciation of non-structural
capital improvements; and administrative costs equal to ten (10%) percent of the Building
Operating Costs. Building Costs shall not include: real estate taxes as defined in Section 7.1;
insurance as described in Section 8.2; costs of work performed exclusively for any other
tenant in the Building other than work of a kind and scope which Landlord would be
obligated to provide to all tenants; leasing commissions and other expenses attributable solely
to leasing of space in the Building; costs of repairs or rebuilding necessitated by
condemnation; or costs of capital improvements except as provided above.
TENANT'S PRO RATA SHARE OF BUILDING OPERATING COSTS Section 7.2
a. During each lease year of the Lease T errn, including the first lease year, Tenant shall pay
Landlord as additional rent its pro rata share of Building Operating Costs which shall be
computed as set forth in Section 6.2 herein. Tenant shall make the first monthly installment
of its pro rata share of Building Costs on the date execution hereof, to be applied to said
amount due for the first full month of the term. The amount due for the first partial month,
if any, shall be billed in accordance with Section 2.1.
Page 11 of22
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,PLACE AND MANNER OF PAYMENT' OF TENANT'S PRO RAT A SHARE OF BUILDING
OPERATING COSTS, REAL ESTATE TAXES, AND INSURANCE PREMIUMS
Section 7.3
a. Except for the first full month and partial month, if any, provided for in Section 7.2 herein,
on the first of each month during the Lease Term, Tenant shall pay one-twelfth (1/12) of its
estimated annual pro rata share of real estate taxes, as described in Section 6.2 herein (based
upon the actual real estate taxes for the prior tax year, ifany, otherwise based on Landlord's
estimate thereof), one-twelfth (1/12) of its estimated annual pro rata share of Building
Operating Costs as described in Section 7.1 herein and one-twelfth (1/12) of its estimated
annual pro rata share of insurance premiums described in Section 8.2 herein, hereafter
collectively referred to as "Tenant's Aggregate Pro Rata Share", in advance in equal monthly
installments. The initial estimated annual pro rata share costs of real estate taxes, insurance
premiums and Building Operating Costs is set forth in the Summary.
b. Within ninety (90) days after the end of each calendar year and within ninety (90) days after
the termination of this Lease, Landlord shall submit a statement to Tenant itemizing the actual
amount of Tenant's Aggregate Pro Rata Share and the difference between said actual amount
and the estimated amounts paid by Tenant during the prior calendar year, if any. Within thirty
(30) days after receipt of said statement, Tenant shall remit to Landlord the difference if any, $
or Landlord shall credit Tenant for the overpayment if any, provided that in the event such
statement is the final statement subsequent to the termination of the Lease, Landlord shall
refund said overpayment, if any, to Tenant. Landlord shall also indicate in said statement any
increases, for the current calendar year. Commencing with the next month following such
statement, Tenant shall pay Landlord a lump sum equal to one-twelfth (1/12) of the annual
increase, if any, for each month of the current calendar year which has passed. With the same
payment, Tenant shall commence payment to Landlord of one-twelfth (1/12) of the annual
increase by adding that amount to the regular monthly additional rent installments. The
increased monthly additional rent installments shall continue until Landlord shall give Tenant
the next written notice calculating any additional rent increases for further calendar years
upon which the same procedures for payment shall apply.
ARTICLE VIII
INSURANCE
PUBLIC LIABILITY INSURANCE/INDEMNITY Section 8.1
a. Tenant's Liability Insurance. Tenant shall, during the entire term hereof, keep in full force
and effect a policy of comprehensive general public liability insurance with personal injury and
property damage liability limits in an amount not less than One Million Dollars ($1,000,000).
The policy shall name Landlord and Tenant as insured and shall comply with Section 8.3
herein. Said policy shall insure any and all claims for injury or damage to persons or property
or for the loss of life or of property occurring upon, in or about the Premises and the public
Page 12 of 22
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portions of the Building arising out of or in connection with any act or omission of Tenant,
its employees, agents, contractors, customers, and invitees.
b. Tenant shall indemnity, defend and save harmless Landlord from any and all liabilities,
damages, fees (including without limitation reasonable attorney's fees), costs, claims, suits
or actions growing out of: (i) any breach, violation or nonperformance of any covenant,
obligation, agreement, term or condition in this Lease set forth and contained on the part of
the Tenant to be fulfilled, kept, observed and performed; (ii) any damage to property and any
~ury to any person or persons including death resulting at any time therefrom, occasioned IJp
by any act or omission of the Tenant, its officers, agents, servants, employees, co. ntractors, P.il
or licensees, or occumng in or on the Premises or any part thereof' . .. U ...., "'1 -'R ~
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injury is due to the act, default or negligence of Landlord, its officers, agents, servants,
employees, contractors, customers, invitees or licensees, (Hi) any contract, lien, privilege,
mortgage, charge or encumbrance of the Building arising from or occasioned by the act,
default or negligence of the Tenant, its officers, agent, servants, employees, contractors or
licensee (iv) any proceeding or claim, whether of a criminal or civil nature, commenced
against Landlord in connection with any restriction of the use of other premises in the
Building contained in the Lease.
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c. Indemnification of Ten ant. Landlord will indemnity Tenant and save it harmless from and
against any and all claims, actions, damages, liability fee, and expense, including without
limitations, reasonable attorney fees in connection with loss oflife or personal injury, arising
from or out of any occurrence in, upon, or at the common areas which is occasioned by any
act or negligence of Landlord, its agents, or employees, except if caused by the act or
negligence of Tenant, its agents or employees.
CASUALTY Section 8.2
a. Subject to reimbursement as provided in Section 7.3 and Section 8.2 below, Landlord shall
keep all improvements constructed on the Building, from time to time, excluding Tenant's
improvements and property, insured against loss or damage by fire, with all risk and loss of
rent endorsements, in amounts not less than eighty (80%) percent of the full insurable value
thereof above foundation walls.
b. Tenant's Additional Rent. Tenant shall pay during each lease year during the Lease Term as
additional rent, its pro rata share, of the insurance premiums set forth in Section 8.1.
Tenant's pro rata share of insurance premiums shall be computed as set forth in Section 6.2
herein and paid in the manner set forth in Section 7.3 herein.
c. Casualty Insurance Coverage by Tenant. Tenant agrees that it shall keep its improvements,
fixtures, merchandise, inventory, floor coverings, and equipment insured again loss, loss of
business or damage by fire or other casualty with all risk endorsements including without
limitation, sprinkler leakage and flood damage (if flood exposure exists). It is understood and
agreed that Tenant assumes all risk of damage to its own property arising from any cause
Page 13 of 22
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whatsoever, including without limitation; loss by theft or otherwise. Evidence of said
insurance shall be delivered to Landlord prior to Lease Commencement Date. Tenant
covenants to comply with any and all rules and regulations applicable to the Premises issued
by the Board of Fire Underwriters or by any other body hereinafter constituted as exercising
similar functions, and insurance companies writing policies covering the Premises.
d. Protection From Subrogation. Anything in this Lease to the contrary notwithstanding, neither
Landlord nor Tenant shall be liable to the other for any business interruption or any loss or
damage to property occurring on the Premises or the adjoining properties, sidewalks, streets,
or alleys, or in any manner growing out of or connected with Tenant's use and occupation
of the Premises, or the condition thereof, or of sidewalks, streets, or alleys adjoining, caused
by the negligence or fault of Landlord or Tenant or of their respective agents, employees,
subtenants, licensees, or assignees, to the extent that such business interruption or loss or
damage to property is required to be covered by a standard all-risk policy, regardless of
whether such insurance is camed or not, or if so carried, regardless of whether such insurance
is payable to or protects Landlord or Tenant or both or regardless of which party is
reimbursed; and Landlord and Tenant each hereby respectively waive all right of recovery
against the other, its agents, employees, subtenants, licensees, and assignees, for any such loss
or for damage to the property. Nothing contained in this Section shall be construed to impose
any other or greater liability upon either Landlord or Tenant than would have existed in the I
absence of this Section 8.2(d). Each of the parties shall notifY their respective insurance
carrier that the foregoing waiver is contained in this Lease and shall require such carrier to
include an appropriate waiver of subrogation provision in its policies.
e. Additional Hazards. Tenant covenants and agrees that it will not do or permit anything to be
done in or upon the Premises or bring in anything or keep anything therein which shall
increase the rate of insurance on the Premises or on the other buildings above the standard
rate on said Premises and buildings, with a store of the type described in Section 6.1 located
in the Premises; and Tenant further agrees that in the event it shall do any of the foregoing,
it will promptly pay to Landlord on demand any such increase resulting therefrom which shall
be due and payable as additional rent hereunder.
TENANT'S INSURANCE POLICIES
Section 8.3
a. All insurance policies required of Ten ant pursuant to tlte terms of this Lease shall be written
in form and substance reasonable and satisfactory to Landlord by reputable insurance
companies licensed and authorized to do business in the state in which the building is located
and shall contain a provision or endorsement that (i).no act or omission of Ten ant shall affect
or limit the obligation of the insurer to pay the amount ofloss sustained, (ii) all of Tenant's
indemnity obligations under this Lease are insured, (iii) Tenant shall be solely responsible for
the payment of all premiums and that Landlord shall have no obligation to pay same
notwithstanding that Landlord is or may be named as insured, and (iv) that the policy cannot
be canceled or amended except upon thirty (30) days prior written notice to Landlord.
Tenant shall deliver to Landlord a copy of the policy or certificate of insurance prior to
Tenant receiving possession of the Premises hereunder and shall provide Landlord with thirty
Page 14 of 22
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(30) days notice, as such policies are'amended or new policies are issued and Tenant's failure
to provide Landlord with the certificates and policies set forth herein shall not relieve Tenant
of its obligations hereunder.
b. Tenant's failure to provide and keep in force the insurance required herein shall be regarded
as a material default entitling Landlord to exercise any or all of the remedies in the event of
a default under this Lease. Carrying the prescribed insurance shall in no way be construed as
either a limitation or satisfaction of the hold hannless or indemnity provisions contained in this
Lease. In the event Tenant shall not obtain any of the insurance required to be obtained
hereunder, Landlord shall have the right to obtain such insuf{lllce on Tenant's behalf and
Tenant shall pay to Landlord the cost thereof upon right to review annually the form,
substance and limits of all Tenant's insurance required hereunder and Tenant shall adjust its
insurance required hereunder and/or increase the limits thereof as Landlord shall deem
reasonably necessary.
ARTICLE IX
UTILITIES
CHARGES Section 9.1
a. Beginning on the Lease Commencement Date, or earlier, herein if applicable, Tenant shall
promptly pay for all utility services, including gas, electricity, water, sewer and all other utility
services furnished to Tenant for use in the Premises. If any such services are not separately
metered, Tenant shall pay its proportionate share thereof, as reasonably determined by
Landlord based upon the number of Ten ants who use such services and the type of business
in which each such Tenant is engaged. Tenant shall pay such amounts promptly as and when
billed for the same by Landlord. In no event shall Landlord be liable for an interruption or
failure in the supply of any such utilities to the Premises.
ARTICLE X
DAMAGE BY FIRE OR OTHER CASUALTY
NOTICE
Section 10.1
a. Tenant shall give immediate written notice to Landlord of any damage caused to the Premises
by fire or other casualty.
PARTIAL DAMAGE
Section 10.2
a. In the event that during the term hereof the Premises shall be partially damaged (as
distinguished from "substantially damaged" as that term is hereinafter defined) by fire or other
Page IS of 22
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casualty, Landlord shall, not later 'than siXty (60) days after the date of such fire or ~ther
casualty, proceed to commence repair of such damage and restore the Premises to
substantially its condition at the time of such damage subject to zoning laws and building
codes then in existence. Landlord shall complete such repairs subject to any delay which may
result from any cause beyond Landlord's reasonable controL Tenant agrees that, promptly
after completion of such work by Landlord, it will proceed with reasonable diligence at its
sole cost and expense to restore its fixtures, equipment and improvements and re-inventory
the Premises for reopening. This lease shall continue in full force and effect during any such
period of repair and restoration.
SUBSTANTIAL DAMAGE Section 10.3
a. In the event that during the term hereof the Premises or Building shall be substantially
damaged or destroyed by fire or other casualty, Landlord shall have the right, to be exercised
by written notice to such effect delivered to Tenant within sixty (60) days after the occurrence
of such event, to terminate this lease. So long as said damage does not interfere with
Tenant's ability to conduct business, Tenant shall have the right to continue or terminate this
lease. If Landlord fails to timely give such notice of its election to terminate, this Lease shall,
except as hereinafter provided remain in full force and effect, and Landlord shall, not later
$
than sixty (60) days after the date of such fire or other casualty, proceed to commence repair
or re-building of the Premises (or if the damage relates to other portions of the Building, such
portions thereof as Landlord reasonably determines are necessary to be repaired) to
substantially restore their condition to that condition at the time of such damage or
destruction subject to zoning laws and building codes then in existence, but Landlord shall not
be responsible for any delay which may result from any cause beyond Landlord's reasonable
controL Tenant shall restore pursuant to Section 10.2 (a) herein. This Lease shall continue
in full force and effect during any such period of repair and restoration.
ABATEMENT
Section lOA
a. Tenant agrees that during any period of reconstruction or repair of the Premises, it will
continue the operation of its business within the Premises to the extent practicable. During
the period from the occurrence of the casualty until Landlord's repairs are completed, the
Minimum Rent shall be reduced to such extent as may be fair and reasonable under the
circumstance. If the Premises are untenantable during such period of repair or restoration,
Tenant's Minimum Rent shall abate in its entirety during such period.
DEFINITION OF SUBSTANTIAL DAMAGE
Section 10.5
a. The term "substantial damage" shall mean forty (40%) percent or more of damage to the
Premises.
ARTICLE XI
EMINENT DOMAIN
Page 16 of22
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PARTIAL OR TOTAL CONDEMNATION
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Section 11.1
a. lfthe whole or any part of the Premises shall be taken by any eminent domain (which shall
include a voluntary sale or transfer under threat of condemnation), Tenant shall have no claim
against Landlord nor shall it be entitled to any portion of any award for damages or otherwise.
In the event only a portion of the Premises are taken, the Lease shall cease as to the part taken
and the Minimum Rent, additional rent, and other charges due herein, shall be adjusted so that
Tenant shall be required to pay for the balance of the term that portion of the rent and other
amounts herein reserved which the value of the part of the Premises remaining after
condemnation bears to the value of the Premises immediately prior to the date of
condenmation. The rental and other charges shall be apportioned as aforesaid by agreement
between the parties or by legal proceedings, but pending such determination, Tenant shall pay
at the time and in the manner above provided the rental herein reserved, and all other charges
herein required to be paid by Tenant, with deduction. Upon such determination, Tenant shall
be entitled to credit for any excess rentals paid.
b. If, however, by reason of the condemnation there is not sufficient space left in the Premises
for Tenant to conduct business in substantially the manner in which it was being conducted
immediately prior to such taking, or the taking of parking and common area is so substantial
as to render the Premises unsuitable and unfit for which they were rented, then and in such .,
events the Lease shall terminate as of the date of title vesting in such proceeding. Although
all damages in the event of condemnation belong to Landlord whether awarded as
compensation for diminution in value of the leasehold or to the fee of the Premises, nothing
herein shall be construed to prevent Tenant from claiming and recovering from the
condemning authority such compensation as may be separately awarded or recoverable by
Tenant in Tenant's own right so long as any such award in no way reduces Landlord's award.
ARTICLE XII
ASSIGNMENT AND SUBLETTING
CONSENT REQUIRED
Section 12.1
a. Tenant may not assign this Lease and/or sublet the Premises, or any part thereof, without in
each instance obtaining the written consent of Landlord, which will not be unreasonably
withheld. The consent of Landlord to any assignment or subletting shall not constitute a
waiver of the necessity for such consent to any subsequent assignment or subletting. If any
subtenant or assignee, pursuant to any subletting or assignment in accordance with the
provisions hereof is obligated to pay any amount in excess of the Minimum Rent and all
additional rent required to be paid hereunder by Tenant (hereafter "excess rent"), Landlord
shall be entitled to receive all excess rent. Further, in the event any consented to assignee or
subtenant intends to use the Premises for any purpose other than that set forth in Section 4.1
and Landlord consents to such use which shall be in Landlord's sole discretion.
Page 170f22
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b. If Tenant assigns or sublets without Landlord's consent, in addition to its other rights and
remedies, Landlord shall have the option, in its sole discretion of terminating the Lease. In
the event that Tenant shall seek Landlord's permission to assign or sublet, Tenant shall
provide to Landlord the name, address and financial statement of the proposed assignee or
sublessee and such other information as Landlord may require. It shall be a condition to any
consent by Landlord that Tenant shall accompany such request with a check in the amount
of not less than Three Hundred and 00/100 Dollars ($300) to reimburse Landlord for
administrative and legal expenses for the review and preparation of necessary documents.
ARTICLE XIII
SUBORDINATION
LEASE SUBORDINATION TO MORTGAGES AND DEEDS TO TRUST
Section 13.1
a. It is agreed that this Lease shall be subject and subordinate to any mortgages or trust deeds
that may hereafter be placed on the building, and the leased premises and to any and all
advances to be made thereunder, and to the interest thereon, and all renewals, replacements,
$
modifications, consolidations and extensions thereof, provided the mortgagee or trustee
named in said mortgages or trust deeds shall agree to recognize the said Lease of Lessee in
the event of foreclosure if Lessee is not then in default.
ARTICLE XIV
RIGHT OF ENTRY
RIGHT OF ENTRY Section 14.1
a. Landlord or Landlord's agents shall have the right to enter the Premises at all reasonable
times to examine the same, including immediate entry in the event of an emergency, and to
make such repairs, alterations, improvements or additions as Landlord may deem necessary.
Landlord may interrupt or suspend the supply to the Premises of any services of utilities
where necessary until such repairs, alterations, improvements or additions shall have been
completed.
b. During the six (6) months prior to the expiration of the Lease Term, Landlord may exhibit the
Premises to prospective tenants or purchasers, and place upon the Premises the usual notices
"To Let" or "For Sale" which notices Tenant shall permit to remain thereon without
molestation.
ARTICLE XV
Page 18 of22
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EVENTS OF TENANT DEFAULT Section 15.1
a. The occurrence of any of the following shall constitute an event of default hereunder:
I. The filing of a petition by or against Tenant for adjudication as a bankrupt or
insolvent, or for its reorganization or for the appointment of a receiver or trustee of
Tenant's property; an assignment by Tenant for the benefit of creditors; or the taking
possession of the property of Tenant by any governmental officer or agency pursuant
to statutory authority for the dissolution or liquidation of Tenant; or a filing by Tenant
for relief under the Bankruptcy Code.
2. Failure of Tenant to pay when due any installment of rent hereunder or any other sum
herein to be paid by Tenant. Tenant shall have ten (10) days to cure said default upon
written notice by Landlord to Tenant. In the event Tenant is in default for failure to
timely pay said sums, in excess of two (2) times in any lease year, written notice shall
not be required by Landlord in order to pursue any of Landlord's rights and remedies
herein.
3. Vacating or deserting the Premises or permitting the same to be empty and
unoccupied.
4. Tenant's removal or attempt to remove, or manifesting an intention to remove $
Tenant's goods or property from or out of the Premises otherwise than in the ordinary
and usual course of business without having first paid and satisfied Landlord for all
rent which may become due during the entire term of this lease.
5. Tenant's failure to perform any other covenant or condition of the Lease within thirty
(30) days after notice.
LANDLORD'S REMEDIES Section 15.2
a. In the event Lessee defaults as hereinabove provided, in addition to all other rights and
remedies available in law or equity or granted elsewhere in this Lease, Lessor shall also have
the right to do once or more often anyone or more of the following: sf
I. declare due and payable and sue to recover unpaid rent and all other char~es due and.tfl
payable by Lessee to lessor including rent [ II .." 1. ,..,of' rn and all
costs and commissions provided or permitted by law;
2. enter the leased premises and distrain upon and sell any property therein which may
be lawfully subject to distraint; .
;3. lease all or any part of the leased premises to any other person with or without first
altering the same;
4. enter an amicable action and judgment in ejectment against Lessee, using this Lease
or a copy hereof as authority and causing a writ of possession to be issued.
Lessee hereby empowers any attorney of any court of record to appear for it one or more
times and to take on its behalf any or all of the actions described in this section including the
entry of judgment of confession, agreement or otherwise.
Page 19 of 22
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AR TICi-E XVI
MISCELLANEOUS PROVISIONS
HOLDING OVER Section 16.1
a. In the event that Tenant shall continue to occupy the Premises after the expiration of the term
of this lease, said tenancy shall be construed to be a tenancy from month to month at a rental
equal to one hundred fifty (150%) percent of the Minimum Rent herein specified then being
paid by Tenant, whichever is greater, plus all additional rent and upon all of the other terms
and conditions herein contained except where same are not applicable.
ENTIRE AGREEMENT
Section 16.2
a. This lease constitutes the sole understanding of the parties hereto and any amendments or
additions shall be effective only when reduced to writing and signed by the parties hereto.
NOTICES
Section 16.3
a. Legal notice wherever provided in this Agreement, by statute or common law shall be ten (10) $
days in advance of any proceedings and shall be given to Lessee by mailing a copy of said
notice by certified mail (as set forth in the Summary).
RECORDING
Section 16.4
a. LeSsee may, at its option, record this Lease or a short form lease executed by all parties with
the costs of said recording to be paid by the Lessee. Lessor covenants and agrees
immediately after receipt of the short form lease and other documents and agreements as may
be required, to have the same properly executed and acknowledged and return the same to
the Lessee.
SECURITY DEPOSIT
Section 16.5
a. Tenant, contemporaneously with the execution of this Lease, has deposited with Landlord to
Landlord's agent, the security deposit set forth in the Summary, receipt of which is hereby
acknowledged by Landlord. Said deposit shall be held by Landlord, without liability for
interest, as security for the faithful performance by Tenant of all the terms, covenants, and
conditions of this Lease by said Tenant to be kept and performed during the term hereof
b. In the event of the failure of Tenant to keep and perform any of the terms, covenants, and
conditions of this Lease to be kept and performed by Tenant, then Landlord at its option may
appropriate and apply said entire deposit, or so much thereof as may be necessary, to
compensate Landlord for loss or damage sustained or suffered by Landlord due to such
breach on the part of Ten ant. Should Tenant comply with all of said terms, covenants and
conditions and promptly pay all of the rental herein provided for as it falls due, and all other
Page 20 of 22
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sum payable by Tenant to Landlord herelinder, the said deposit shall be refunded in roll to '
Tenant at the end of the term of this Lease, or upon the earlier termination of this Lease.
OPTION TO EXTEND LEASE TERM
Section 16.6
a. Tenant shall have the right to extend the Lease Term for the consecutive periods of years set
forth in the Summary upon the same terms and conditions as contained in this lease, at the
Minimum Rent set forth in the Summary provided: (i) this lease has not been previously
terminated pursuant to its terms, and (ii)Tenant is not and has not at any time been in default
under any ofits covenants, obligations and agreements under this .Lease, and (iii) Tenant gives
to Landlord written notice of its intention to renew this Lease not more than one hundred
eighty (180) days nor less than one hundred twenty (120) days prior to the expiration of the
Lease Term or the prior option period whichever the case may be.
$
Page 21 of22
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IN WITNESS WHEREOF THE RESPECTIVE'PARTIES HERETO HAVE CAUSED TIIESE .
.
PRESENTS TO BE SIGNED, SEALED AND DELIVERED ON THE DATE FIRST ABOVE
WRITTEN.
THIS LEASE MUST BE EXECUTED FOR TENANT, IF A CORPORATION, BY THE
PRESIDENT OR VICE-PRESIDENT AND ATTESTED BY THE SECRETARY OR ASSISTANT
SECRETARY, UNLESS THE BY-LAWS OR A RESOLUTION OF THE BOARD OF
DIRECTORS SHALL OTHERWISE PROVIDE, IN WHICH EVENT A CERTIFIED COpy OF
THE BY-LAWS OR RESOLUTION, AS THE CASE MAY BE, MUST BE FURNISHED TO
LANDLORD.
THIS LEASE MUST BE EXECUTED FOR TENANT, IF AN INDIVIDUAL(S), BY EACH
INDIVIDUAL(S) AND EACH SIGNATURE MUST BE WITNESSED.
THIS LEASE MUST BE EXECUTED FOR TENANT, IF A PARTNERSHIP, BY A GENERAL
PARTNER AND EACH SIGNATURE MUST BE WITNESSED.
Attest/Witness
TENANT:
Byr~~" /r.Q
Print or TYPe/Name: /J
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By ~^~~~~
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Title: G&D
Date: 312~h~
LANDLORD:
Barry L. Pagliaro
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Title:
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Date:
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P AGUARO.LSE;VBIkes;l/30!97
Page 22 of22
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September 21, 2000
Your Golf Shop, Inc.
Mr. Mark ParthelTIer, Esquire
100 Pine Street
P~ O. Box 1166
Harrisburg, Pa. 17108
RE: Delinquent Rent
Dear Mr. Parthenl.er,
This is to give notice that Your Golf Shop, Inc. Suite B, 340 I Hartzdale Drive, Camp
Hill, Pa. is delinquent on their September rent In accordance with Article II, Section 2.1
of your lease Agreement, rents are due and payable on the first day of each calendar
month.
Also in accordance with Article II, Section 23 of your Lease, the landlord is entitled to
charge a 10% late charge on all overdue amounts.
The total delinquency for the month of September is $3,234.09. The total delinquency,
plus 10% late charge amounts to a total due and owning of $3,557.50.
In accordance with Article XV, you are hereby given notice that the sum of $3,557.50 is
payable within ten (10) days from the date of this notice. Failure to pay the delinquent
amount in full will result in the landlord declaring you in default under the terms of the
Lease Agreement and thereby permitting the landlord to enter an amicable action and
judgement In ejectment to recover the property, as well as Initiate legal proceedings for
the collection of all amount due and owning under the Lease Agreement.
If there are any questions, please contact me.
Very truly yours,
Barry P~o
Cct-tharles DeHart, Esquire
Bill Rothman
George Sheleman
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CERTIFICATE OF SERVICE
AND NOW, this Ji'2&L day of October, 2000, I hereby certify that I have served a copy of
the within document on the following by depositing a true and correct copy of the same in the
U.S. Mail at Harrisburg, Pennsylvania, postage prepaid, addressed to:
Mark Parthemer, Esquire
100 Pine Street
P.O. Box1166
Harrisburg, P A 17108
Attorney for Defendant, Your Golf Shop, Inc.
CALDWELL & KEARNS
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BARRY L. PAGLIARO,
: IN THE COURT OF COMMON PLEAS
: CUMBERLAND COUNTY, PENNSYLVANIA
Plaintiff
v.
: NO. 00- ?~3:l ~ TL..-,.
YOUR GOLF SHOP, INC.,
Defendant
: CIVIL ACTION - LAW
: IN EJECTMENT
PRAECIPE FOR WRIT OF POSSESSION UPON A CONFESSED JUDGMENT
TO THE PROTHONOTARY:
Issue a writ of possession upon the judgment in ejectment entered by confession in the above
matter, to wit: 3401 Hartzdale Drive, Suite B, Camp Hill, PA 17011.
I hereby certify that this Praecipe is based upon a judgment entered by confession, and Notice
pursuant to Rule 2973.3 will be served with the Writ of Possession.
Respectfully submitted,
CALDWELL & KEARNS
By:
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Charles J. eHart, III, Esquire
AttorneyIDNo.15617
Attorney for Plaintiff
Date: / () (-z... 1/.-"
00-536/16602-1
3631 North Front Street
Harrisburg, Pennsylvania 17110-1533
(717) 232-7661
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WRIT OF POSSESSION (Ejectment Proceedings PRep 3160 - 3165 etc.)
Banv -L. Paaliaro
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
No. 00-7532 Civil Tenn Term
No. Term
vs. Costs
Your Golf Shop, Inc. Att'y. $ 29.50
3401 Hartzdale Drive, Suite B Pl'ff(s) $
Camp Hill. Pa. 17011 Prothy. $ 1.00
COMMONWEALTH OF PENNSYLYANIA:
COUNTY OF CUMBERLAND:
To the Sheriff of r.llmhPrl "Inn
County, Pennsylvania
(I) To satisfy the judgment for possession in the above matter you are directed to deliver possession of the
following described property to:
Caldwel] ;;, KAi'lrn<; r.hi'lrl A<; ", I1ARArt- TTT )<,,'1
<6<1 Marth Front Str~@t
Harrisburg, Pa. 17110-1533 for, Barry L. Pagliaro
being: (Premises as follows):
Plaintiff (s)
3401 Hartzdale Drive, Suite B
Camp Hill, Pa. 17011
'.
(2) To satisfy the costs against the defendant (s) you are directed to levy upon any property of the defen-
dant (s) and sell his/her (or their) interest therein.
'Curtis R. Lonq
Prothonotary, Common Pleas Court of Cumberland County, Pennsylvania
Daw October 25. 2000
By: qUf-L./ a ~
(SEAL)
Deputy
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So Answers,
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BARRY 1. PAGLIARO,
: IN THE COURT OF COMMON PLEAS
: CUMBERLAND COUNTY, PENNSYL VANIA
Plaintiff
v.
: NO. IJO- "7632 ~ r P-
YOUR GOLF SHOP, INe.,
Defendant
: CIVIL ACTION - LAW
: IN EJECTMENT
NOTICE
TO: YOUR GOLF SHOP, INC.
A judgment by confession has been entered against you in Court. If you wish to open the
judgment or otherwise attach the claim set forth against you in the following pages, you must
take action as soon as possible after this Complaint and Notice are served, by entering a written
appearance personally or by an attorney, and filing in writing with the Court your defenses or
objections to the judgment entered against you. You are warned that if you fail to timely do so,
you may be foreclosed and not able to do so at some alternate date and execution may be issued
against you without further notice. You may lose money or property or other rights important to
you.
CALDWELL & KEARNS
By:
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Charles. e)'fart, III, Esquire
Attorney for Plaintiff, Barry Pagliaro
YOU SHOULD TAKE THIS PAPER TO YOUR LA WYER AT ONCE. IF YOU DO NOT
HAVE A LAWYER OR CANNOT AFFORD ONE, GO TO OR TELEPHONE THE
OFFICE SET FORTH BELOW TO FIND OUT WHERE YOU CAN GET LEGAL HELP.
CUMBERLAND COUNTY LAWYER REFERRAL SERVICE
Cumberland County Bar Association
2 Liberty A venue
Carlisle, PAl 7013
(717) 249-3166
TRUE COpy FROM RECORD
In Testimonywheioof.! herll unto set my h<'ll1d
and tile sllal of said c~ at Cilrlisla, Pa.
This J~<t}- day t!l~~;__~ ~
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BARRY L. PAGLIARO,
: IN THE COURT OF COMMON PLEAS
: CUMBERLAND COUNTY, PENNSYLVANIA
Plaintiff
v.
: NO. iHJ- 7j-3:L.
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YOUR GOLF SHOP, INC.,
Defendant
: CIVIL ACTION - LAW
: IN EJECTMENT
COMPLAINT
CONFESSION OF JUDGMENT FOR POSSESSION
OF REAL PROPERTY PURSUANT TO PA.R.C.P. 2970
AND NOW comes the Plaintiff, Barry L. Pagliaro, by and through his attorneys, Caldwell
& Kearns, and does file the following Complaint against Defendant, Your Golf Shop, Inc.,
stating and in support thereof the following:
I. Plaintiff, is a landlord, having sole proprietorship existing under the laws of the
Commonwealth of Pennsylvania with his principle place of business located at
101 Banbury Circle, Hummelstown, Pennsylvania.
2. Defendant, Your Golf Shop, Inc., is a company duly incorporated and existing
under the laws of the Commonwealth of Pennsylvania, with its principle place of
business located at 3401 Hartzdale Drive, Suite B, Camp Hill, Pennsylvania.
3. On or about March 30, 1998, Plaintiff, Barry L. Pagliaro did enter into a lease
agreement with Defendant, Your Golf Shop, Inc. for the lease of property located
at Suite B, 3401 Hartzdale Drive, Cumberland County, Pennsylvania. A true and
correct copy of said lease agreement is attached hereto and marked Exhibit "A"
and incorporated in this Complaint by reference.
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4. The lease agreement was commenced on May I, 1998, and ran for a period of five
years, with the option to extend the lease for an additional five years.
5. The lease agreement did obligate the Defendant to pay the sum of Thirty-Two
Thousand One Hundred Forty-Nine Dollars and Thirteen Cents ($32,149.13) on
May I, 2000, or Two Thousand Six Hundred Seventy-Nine Dollars and Nine
Cents ($2,679.09) every month starting on May 1,2000 and continuing through
April 30, 2001, at which time the amount ofthe rent owed under the lease
agreement would increase to Thirty-Two Thousand Nine Hundred Fifty-Two
Dollars and Eighty-Five Cents ($32,952.85) from May 1,2001 through April 30,
2002, and Thirty-Three Thousand Seven Hundred Seventy-Six Dollars and Sixty-
Seven Cents ($33,776,67) from May I, 2002 through April 30, 2003.
6. The lease agreement has not been assigned.
7. Judgment for monetary damages or an ejectment has not been entered in this or
any other jurisdiction.
8. This judgment has not been entered against a natural person in connection with a
residential lease, but against a corporate defendant in connection with a
commercial lease.
9. The lease agreement stipulates that the Defendant shall incur a ten percent (10%)
late fee on the principle owed for any payment made after ten (10) days of the due
date.
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I o. The Defendant did fail or refuse to tender the monthly payment on the aforesaid
obligation on September 1,2000.
11. The Defendant has failed to make any further monthly payment since this date.
12. As provided in the lease agreement, Defendant is in default of said agreement ten
(10) days after September 1, 2000.
13. Plaintiff provided Defendant notice of this default on September 21,2000, a copy
of which is attached hereto and marked Exhibit "B", and incorporated in this
Complaint by reference.
14. A demand for possession of the lease of premises is made as authorized by the
warranty and confession as set forth in section 15.2(a) ofthe lease agreement.
15. A demand for judgment of ejectment is made as authorized by the lease and the
Pennsylvania Landlord and Tenant Act.
16. A reasonable attorney fee is demanded as authorized by the warranty of
$1,000.00.
17. The said notice informed the Defendant of the amount in default and demanded
payment of this notice within ten (10) days.
18. The Defendant did fail or refused to comply with the notice of September 21,
2000.
19. Plaintiff has demanded, but Defendant has failed and/or refused to turn over
possession of the property to the Plaintiff.
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WHEREFORE, Plaintiff, Barry L. Pagliaro, demands judgment by confession for
possession of the leased premises located at 3401 Hartzdale Drive, Suite B, Camp Hill,
Cumberland County, Pennsylvania.
Respectfully submitted,
By:
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Charles J. DeH , III, EsqUlre
Attorney ID# 15617
3631 North Front Street
Harrisburg, PA 17110-1533
(717) 232-7661
Attorney for Plaintiff, Barry L. Pagliaro
Dated:
00536iJ 6368
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BARRY L. PAGLIARO,
: IN THE COURT OF COMMON PLEAS
: CUMBERLAND COUNTY, PENNSYLVANIA
Plaintiff
v.
: NO.
YOUR GOLF SHOP, lNe.,
Defendant
: CIVIL ACTION - LAW
: IN EJECTMENT
CONFESSION OF JUDGMENT FOR
POSSESSION OF REAL PROPERTY
Pursuant to the authority contained in the warrant of attorney as contained in the Lease
Agreement, I appear for the Defendant, Your Golf Shop, Inc., and confess Judgment in ejectment
in favor of the plaintiffs against the Defendant for possession ofthe real property described as
follows: Real estate located at 3401 Hartzdale Drive, Suite B, Camp Hill, Pennsylvania.
An attorney's fee of$I,OOO.OO is demanded as authorized.
Date: 10/'- j/,,u
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Charles J. DeJt"art, 1II, Esquire
Attorney for Defendant, Your Golf Shop, Inc.
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VERIFICATION
I, Barry L. Pagliaro, verify that the averments in the foregoing Complaint are true and
correct. I understand that false statements herein are made subject to the penalties of 18 Pa. C.S.
4904, relating to unsworn falsification to authorities.
By B~7~.
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LEASE AGREEMENT
, ,
LANDLORD:
BARRY L. PAGLIARO
TENANT:
YOUR GOLF SHOP INC.
C/O MARK PARTHEMER, ESQUIRE
2 N. 2ND STREET, 7TH FLOOR, HARRISBURG, PA 17101
BUll..DING LOCATION: SUITE B, 3401 HARTZDALE DRIVE
CAMP HILL, P A 17011
DATE: APRIL 27, 1998 - OCCUPANCY
MAY 1,1998 - RENT COMMENCEMENT
$
BUll..DING FIT OUT:
LANDLORD SHALL PROVIDE THE FOLLOWING:
I. Painted walls.
2. New carpet and tiled floors
3. Separate heating, ventilation and air conditioning with
individual metering.
4. New ceiling tile.
5. Adequate fluorescent, ceiling lighting.
6. Electrical outlets to building code.
NOTE:
LANDLORD SHALL APPLY FOR PERMIT NECESSARY TO
CHANGE USE OF PREMISES FROM RETAURANT TO
RETAIL. THIS LEASE NULL AND VOID IF USE IS NOT
GRANTED.
Page I of22
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LEASE' AGREEMENT
This lease made on the 26llt day of March, 1998, by and between Barry L. Pagiliaro herein called
"Landlord", and Your Golf Shop, Inc., herein called "Tenant".
SUMMARY OF LEASE PROVISION
I. Notice Address:
Landlord:
BARRY L. P AGILIARO
101 BANBURY COURT
HUMMELSTOWN, PA 17036
Tenant: Your Golf Shop, Inc.
C/O Mark Parthemer, Esq.
2 N. Second Street, 7llt Floor,
Harrisburg, P A 17101
copies of all notices to be sent to:
ABOVE
.,
2. Tenant's Trade Name:YOUR GOLF SHOP, INC.
3.
Tenant's Building Name and Address:
3401 Hartzdale Dr., Suite B,
Camp Hill, PA 17011
4.. Tenant's building Number: Suite B, 3401 Hartzdale
between Global Video and Enterprise Car Rental
5. Square Footage of Tenant's store: 3,600
6. Lease Commencement Date: May I, 1998
7. Initial Lease Term: Five (5) Years
Year 1
Year 2
Year 3
Year 4
Year 5
$30,600.00 or $2,550.00 per month + CAM
$31,365.00 or $2,613.75 per month + CAM
$32,149.13 or $2,679.09 per month + CAM
$32,952.85 or $2,746.07 per month + CAM
$33,776.67 or $2,814.72 per month + CAM
Page 2 of22
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Option to Extend Term:
Option to extend for five (5) years with same rental schedule.
Year 6
Year 7
Year 8
Year 9
Year 10
$34,621.09 plus CAM
$35,486.62 plus CAM
$36,373.79 plus CAM
$37,283.13 plus CAM
$38,215.21 plus CAM
8. Initial monthly tax payment:
Included in CAM
9. Initial monthly building operation costs:
Included in CAM
10.
Initial monthly insurance premium payment:
.'
Included in CAM
II. Security Deposit:
$2,550.00 - to be returned after initial one year period, or credited to rent.
12. Use:
The use will be for retail/wholesale sale and repair of golf equipment an related
accessories, possibly golf travel packages.
13. Option to break lease (early out):
If for any reason the Tenant wishes to vacate at either the end of the first (I sl) or third (3'd) year of
this lease they may do so by giving written notice by registered mail, one hundred and eighty
(180) prior to the anniversary date (May 1) of their intention to do so. If they indeed vacate they
will pay the sum of the undepreciated (on a straight-line basis) amount of Ten ant work as outlined
on page 1, of this document.
Page 3 of22
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ARTICLE r
GRANT AND TERM
PREMISES. Section 11
a. In consideration of the rents, covenants, and agreements herein reserved and contained on the
part of Tenant to be observed and performed, Landlord does hereby lease and demise unto
Tenant and Tenant rents from Landlord the portion of the building, which portion is hereafter
referred to as the "Premises", shown as the area crosshatched and.labeled Premises on the site
plan labeled Exhibit "A", attached hereto and made a part hereof, containing the dimensions
and approximate square feet of floor area and known as the building and bay set forth in the
Summary. Floor area is measured from the exterior of the outside walls of the building to the
center of the interior walls of the Premises.
b. The use and occupation by Tenant of the Premises shall include the use in common with
others entitled thereto of the common areas, parking areas, service roads, loading facilities
and sidewalks substantially as shown on Exhibit "A", and other facilities as may be designated
from time to time by Landlord, subject to the terms and conditions of this lease and to
reasonable rules and regulations for the use thereof as prescribed from time to time by .,
Landlord.
c. The Premises are demised subject and subordinate to all encumbrances, easements, reciprocal
easement agreements, if any, restrictions, contractual obligations, covenants, zoning laws and
governmental or any other regulations, now or hereafter affecting or governing the building.
d. This Lease Agreement and all amendments thereto shall herein collectively be referred to as
the "Lease".
TERM Section 1.2
a. The term of this Lease shall commence when Tenant takes possession.
b. The term of this Lease shall expire on the date which is the number of years, months and days,
hereinafter referred to as the "Lease Term", subsequent to the Lease Commencement Date
as is set forth in the Summary. Said expiration date is hereinafter referred to as the "Lease
Expiration Date". This Lease Term shall include any extensions of same as may be provided
for herein.
LEASE YEAR
Section 1.3
a. The term "lease year" as used herein shall mean a period of twelve (12) consecutive full
calendar months. The first lease year shall commence on the Lease Commencement Date if
Page 4 of 22
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the Lease Commencement Date shall occur on the first day of a calendar month; if not, then
the first lease year shall commence on.the first day of the calendar month next following the
Lease Commencement Date and the first lease year shall include the additional days from the
Lease Commencement Date through the first day of the first lease year. Each succeeding
lease year shall commence upon the anniversary date of the first lease year.
ARTICLE II
RENT
MINIMUM RENT Section 2.1
a. Tenant shall pay to Landlord fixed annual minimum rent hereinafter referred to as "Minimum
Rent", in equal monthly installments in advance, on the first day of each calendar month,
throughout the term of this Lease, without any prior demand and without any deduction or
set-off; at the office of Landlord or at such other place as Landlord may designate in writing.
Minimum Rent shall be as set forth in the Summary.
b. The first monthly installment of Minimum Rent shall be paid on the date of execution hereof '
and shall be applied to the Minimum Rent due for the first full month of the lease term.
Landlord shall subsequently bill Tenant for the first partial month, ifany, of the lease term (in
the event the Lease Commencement Date is not the first day of a month) such proportion of
the monthly installment as the number of days from the Lease Commencement Date through
the last day of said month bears to the total number of days in said month, and such monthly
installment shall be due on the first day of the next ensuing month, along with the next
monthly installment, and subsequent monthly installments shall be due in advance on the first
day of each ensuing calendar month of the Lease Term.
ADDITIONAL RENT
Section 2.2
a. Tenant shall pay as additional rent any money required to be paid pursuant to Tenant's
monetary obligations hereunder, including but not limited to real estate taxes, insurance and
Building Operating Costs as further defined herein, whether or not the same be designated
"additional rent". If such amounts or charges are not paid at the times provided in the Lease,
they shall nevertheless, if not paid when due, be collectible as additional rent with the next
installment of rent due hereunder, but nothing herein contained shall be deemed to suspend
or delay the payment of any amount of money or charge at the time the same becomes due
and payable hereunder, or limit any other remedy of Landlord. All obligations hereunder shall
survive the termination or expiration of the term of this lease.
Page 5 of22
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LATE CHARGES Section 2.3
a. Tenant hereby acknowledges that late payment by Tenant to Landlord or rent and other sums
due hereunder will cause Landlord to incur costs not contemplated by this Lease, the exact
amount of which will be extremely difficult to ascertain. Such costs include but are not
limited to, processing and accounting charges, and late charges which may be imposed on
Landlord by the terms of any mortgage or Deed of Trust, covering the Premises.
Accordingly, if any installment of rent or any other sum due from Tenant shall not be received
by Landlord or Landlord's designee within ten (10) days after such amount shall be due,
Tenant shall pay to Landlord a late charge equal to ten (10%) percent of such overdue
amount and thereafter such overdue amount shall accrue interest at the rate of fifteen percent
(15%) per annum until paid in full. The parties hereby agree that such late charge represents
a fair and resonable estimate of the costs Landlord will incur by reason oflate payment by
Tenant. Acceptance of such late charge by Landlord shall in no event constitute a waiver of
Tenant's default with respect to such overdue amount, nor prevent Landlord from exercising
any of the other rights and remedies granted hereunder.
ARTICLE III
.,
INITIAL CONSTRUCTION AND SUBSEOUENT ALTERATIONS
LANDLORD ALTERATIONS
Section 3.1
a. Notwithstanding anything set forth in this Lease to the contrary, Landlord reserves the right
any time either before, during or after the initial construction thereof, one or more times, for
itself and any owner or owners of the Building, to:
I. build additional building(s), parking facilities and other improvements and to change
the location or character of or reconfigure all building(s), improvements and parking
facilities;
2. make alterations, expansions or additions to the Building and common areas and/or
to build an additional story or stories on the building(s);
3. add additional entrances and exits from the building(s);
4. provide for additional landscaping;
5. add or change signs to the building(s) and/or facilities surrounding the building(s);
6. make changes required by state, federal or local authorities and;
7. make changes which upgrade or enhance the appearance of the building(s) or other
improvements.
TENANT ALTERATIONS Section 3.2
a. Tenant shall not make any alteration, addition, repair or improvement to the Premises, except
as otherwise permitted herein, without the prior written approval of Landlord. Any
equipment, machinery, or utilities required by Tenant in addition to those provided by
Page 6 of22
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Landlord shall be installed with the prior written approval of Landlord. All such alterations,
additions, repairs, improvements and,installa.tions if permitted, shall be at the sole cos~ and
expense of Tenant. Upon the Lease Expiration date, Tenant shall at Landlord's election,
restore the Premises to the condition existing prior to such alteration or improvements, at
Tenant's sole cost and expense, ordinary wear and tear excepted.
ARTICLE IV
CONDITIONS OF USE OCCUPANCY AND CONDUCT
OF BUSINESS BY TENANT
USE OF PREMISES Section 4.1
a.
Tenant shall open for the full conduct of business and occupy Premises on or before the date
set forth in the Summary, solely for the purpose and use set forth in the Summary, and shall
conduct continuously in the Premises the business above stated under the trade name set forth
in the Summary. Tenant shall not use or permit, or suffer the use of the Premises for any
other business or purposes.
COMPLIANCE WITH LAWS AND REGULATIONS
Section 4.2
a.
General Obligations. Tenant shall at all times maintain and conduct its business, at Tenant's
sole cost and expense, insofar as the same relates to Tenant's use and occupancy of the
Premises, in a lawful manner, and in strict compliance with all federal, state and local
governmental laws, rules, regulations, the Board of Health, and orders and provisions of
insurance underwriters applicable to the business of Tenant conducted in and upon the
Premises, now in force or which may hereafter be in force.
b. Compliance with Environmental Laws
1. Tenant shall comply with all applicable federal, state and local environmental laws,
ordinances, orders or regulations affecting the Premises, the environmental laws,
ordinances, orders or regulations affecting the Premises, the operation of Tenant's
business at the Premises, the use of the Premises, or the removal of any hazardous
substances or nonhazardous substances therefrom, as now or hereafter defined.
Notwithstanding anything in this Lease to the contrary, Tennat shall not without
Landlord's prior written consent and subject to reasonable conditions imposed by
Landlord, place or permit on the Premises or otherwise use, store, manufacture,
process or dispose of any oil, grease or hazardous substances regulated by public
authority.
2. Tenant shall permit no on-site disposal of any oil, grease, or hazardous substances.
No hazardous or industrial wastes, contaminated substances or those resulting from
manufacturing or processing shall be deposited in containers provided for trash
removal. All waste material (including Tenant's construction or remodeling wastes)
other than ordinary sanitary commercial trash shall be removed from Premises and
Page 7 of22
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properly disposed ofin compliance with all applicable laws at Tenant's sole cost and
expense.
3. Tenant does hereby agree to protect, defend, indemnity and hold Landlord harmless
of, from and against all claims, actions, liens, demands, costs, expenses, tines,
judgements, legal costs and attorney's fees resulting from or arising by reason of the
following: (i) any spills or contamination of air, soil or water by oil, grease or
hazardous substances at or around the Premises, if caused by Tenant, Tenant's agents,
or Tenant's operation, or upon removal therefrom; (ii) the violation of any
environmental laws or regulations; or (iii) the violation of any provisions of Section
4.2 .
4. Upon ten (10) days prior written request from Landlord, and upon surrender of the
Premises to Landlord, Tenant shall execute, acknowledge and deliver to Landlord a
written statement in form satisfactory to Landlord certifying that there are no
hazardous substances on the Premises, and that Tenant has not disposed of any oil,
grease or hazardous substance at the Premises and that any such substances used,
processed or generated at the Premises have been disposed of properly, and that there
exists no violations of any environmental laws or regulations.
ARTICLE V
.,
MAINTENANCE REPAIRS AND SlJRRENDER
BY LANDLORD
Section 5.1
a. Subject to reimbursement as provided in Article 7.2 below, Landlord agrees to keep in good
order, condition, and repair the exterior, foundations, and structural portions of the building
of which the Premises is a part (except doors, glass, and glass windows), including heating
and ventilation systems, air conditioning, gutter, downspouts, and all services, pipes, lines,
and mains leading to and from the Premises, and to perform all roof reapirs and replacements
as the same may be required, from time to time. Notwithstanding the foregoing, Landlord
shall not be responsible for repair of any damage to the aforesaid caused by any acts or
negligence of Tenant, its employees, agents, licensees, or contractors. Landlord shall not be
responsible for making any plumbing, electrical, or mechanical repairs or replacements or
other repairs of any kind upon the Premises except as may be expressly set out in this lease.
BY TENANT Section 5.2
a. Tenant agrees from and after the date'that possession of the Premises is delivered to Tenant,
and until the end of the Lease Term that it will be responsible for all repairs, maintenance, and
replacements to the Premises other than those specifically required to the performed by
Landlord in Section 5.1, including but not limited to the interior and exterior portions of all
doors, windows, plate glass, and show cases surrounding the Premises; the mechanical,
plumbing, electrical and systems, meters, partitions and all other fixtures, appliances, and
facilities furnished by Tenant or Landlord. Tenant shall not, however, be responsible for
Page 8 of22
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repair of any damage caused by any act or negligence of Landlord, its employees, contractors,
or agents. Tenant shall not be required to make structural repairs or alterations which may
be required by governmental rules, orders, or regulations or insurance companies unless
resulting from the business operations maintained by Tenant in the Premises. All such work
shall be performed by Tenant in a good and workmanlike manner in compliance with all
applicable laws, codes, and regulations and subject to such reasonable requirements as
Landlord may impose. Landlord shall have the right to post the Premises with a notice of a
non-liability in connection with any such work performed by or on behalf of Tenant.
b. Landlord shall acquire and maintain a service contract for the r\)pair and maintenance of the
heating, ventilation and air conditioning systems. Landlord shall make all repairs required for
the heating, ventilation and air conditioning system. Tenant shall reimburse Landlord its
prorata share of the costs of said maintenance contract and repair and replacement which shall
be billed in Landlord's statement set forth in Section 7.3. Tenant shall acquire and maintain
a service contract for any ventilation hood and related ducts it may install throughout the
Lease Term.
c. The plumbing facilities shall not be used for any other purpose than that for which they are
constructed, and no foreign substance of any kind shall be thrown therein, and the expense
of any breakage, stoppage, or damage resulting from a violation of this provision shall be born .,
of Tenant.
d. In the event that any governmental regulations from time to time require emergency lighting
to be installed in the Premises, the installation and maintenance of same, including providing
of battery power, shall be the responsibility of Tenant.
e. If Tenant refuses or neglects to repair property as required hereunder and to the reasonable
satisfaction of Landlord, Landlord may make such repairs without liability to Tenant for any
loss or damage that may accrue to Tenant's merchandise, fixtures or other property or to
Tenant's business by reason thereof, and Tenant shall pay Landlord's costs for making such
repairs plus ten (10%) percent overhead, as additional rent. If Landlord fails to repair or
replace any items listed as Landlord's responsibility asset forth in this Lease within thirty (30)
days or commence to repair or replace within thirty (30) days, Tenant may cause such repairs
to be made and Landlord shall reimburse Tenant for said repairs. Tenant must first notify
Landlord in writing of the need of repair and/or replacement.. In the event repairs and/or
replacement cannot be completed within thirty (30) days, then Landlord shall use its best
efforts in completing such repair and/or replacement in a reasonable amount of time.
SURRENDER OF PREMISES
Section 5.3
a. At the expiration of the Lease Term, Tenant shall surrender the Premises in the same
condition as existed upon the completion of all Tenant's Work, ordinary wear and tear
excepted. All alterations, additions, improvements, and fixtures, including lighting fixtures,
ducts, controls, diffusers, filters or other equipment for distribution of heating and cooling,
and other personal property other than trade fixtures, which have been installed by, for and
Page 9 of22
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on behalf of Tenant, upon the Premises, and which in any manner are attached to the floors,
walls or ceilings, shall become property of Landlord upon the termination of the Lease; and
shall remain upon and be surrendered with the Premises as a part thereof without disturbance,
molestation or injury. Any tile, linoleum, carpet or floor covering of similar character shall
become property of Landlord upon the termination of the Lease. During the Lease Term,
Tenant shall not remove or damage the above described improvements and fixtures without
the prior written consent of Landlord. Tenant's obligation to observe or perform this
covenant shall survive the expiration or other termination of the Lease Term.
ARTICLE VI
TAXES
LANDLORD'S RESPONSffilLITY Section 6.1
a. Subject to reimbursement as hereinafter provided, Landlord shall be responsible for the
payment of all general and special taxes and assessments levied on the Building and all
improvements constructed thereon, including common areas located thereon, all assessments
for local improvements, water and sewer rents not based on consumption, and all impositions .,
nonrecurring as well as recurring, special or extraordinary, foreseen and unforeseen, and any
new taxes which may be levied or assessed on Landlord or the Building based upon gross
rentals in lieu of or in addition to the current real property taxes (for the purposes of
determining such new tax and other taxes resulting from the alteration of the methods of
taxation, the Building shall be deemed to be Landlord's sole property), and other
governmental charges which may be lawfully charged, assessed, or imposed upon the real
property and improvements now or hereafter constructed thereon and upon the common area,
hereafter collectively referred to as "real estate taxes". However, if authorities having
jurisdiction assess real estate taxes which Landlord deems excessive, Landlord may defer
compliance therewith to the extent permitted by the state laws. Landlord may in good faith
contest all real estate tax assessments.
TENANT'S ADDITIONAL RENTIPRO RAT A SHARE DEFThffiD
Section 6.2
a. Tenant shall pay during each lease year during the Lease Term, as additional rent, its pro rata
share, as hereafter defined, of all of the above described real estate taxes. The term "pro rata"
when utilized with respect to Tenant's share of any monetary obligations hereunder shall be
computed by multiplying the total amount of such obligation by fraction, the numerator of
which shall be the square footage of the Premises and the denominator of which shall be the
total leasable square footage of improvements constructed on the Building. Tenant shall pay
such pro rata share of real estate taxes in the manner set forth in Sections 7.2 and 7.3 herein.
ARTICLE VII
Page 10 of22
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BUILDING OPERATING COSTS
BUILDING OPERATING COSTS DEFThffiD
Section 7. ]
a. "Building Operating Costs" as used herein, shall mean all costs and expenses of any kind or
nature which are necessary, and are customarily incurred in operating and maintaining the
Building as determined by Landlord and which are, as determined by Landlord, reasonable
and appropriate for the best interest of the Building, including, without limitations: all costs
and expenses of operating, maintaining, repairing, replacing, lighting, cleaning, painting,
stripping, and policing all common areas and all improvements thereto (including cost of
uniforms, equipment, and all employment taxes); costs ofuti\ities for the common areas; costs
of all roof repairs; costs of all supplies; insurance premiums for liability insurance for personal
injury, death, and property damage; costs of workmen's compensation insurance covering
personnel and fidelity bonds for personnel; costs of insurance against liability for defamation
and claims of false arrest occurring in and about the common areas; costs for removal of
snow, ice, garbage, and debris; monitoring offire and security systems for common areas;
costs for regulation of traffic; costs and expenses of replacement of paving, curbs, walkways,
landscaping, drainage and lighting facilities for the common areas; costs and expenses of
planting, replanting, and replacing flowers and shrubbery and planters; all costs of labor,
including wages and other payments including disability insurance, payroll taxes, welfare, and '
all legal fees and other costs or expenses incurred in resolving any labor disputes; cost and
expenses for the rental of musif:: program services and loudspeaker systems, including
fumishing electricity therefore; sprinkler maintenance costs; costs for repair and replacements
and costs of service contracts for the heating, ventilation and air -conditioning systems as set
forth in Section 5 .2(b), depreciation of equipment used in operating and maintaining the
common areas and rent paid for leasing any such equipment; depreciation of non-structural
capital improvements; and administrative costs equal to ten (10%) percent of the Building
Operating Costs. Building Costs shall not include: real estate taxes as defined in Section 7.1;
insurance as described in Section 8.2; costs of work performed exclusively for any other
tenant in the Building other than work of a kind and scope which Landlord would be
obligated to provide to all tenants; leasing commissions and other expenses attributable solely
to leasing of space in the Building; costs of repairs or rebuilding necessitated by
condemnation; or costs of capital improvements except as provided above.
TENANT'S PRO RATA SHARE OF BUILDING OPERATING COSTS Section 7.2
a. During each lease year of the Lease Term, including the first lease year, Tenant shall pay
Landlord as additional rent its pro rata share of Building Operating Costs which shall be
computed as set forth in Section 6.2 herein. Tenant shall make the first monthly installment
of its prorata share of Building Costs on the date execution hereof, to be applied to said
amount due for the first full month of the term. The amount due for the first partial month,
if any, shall be billed in accordance with Section 2.1.
Page 11 of 22
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PLACE AND MANNER OF PAYMENT OF TENANT'S PRO RATA SHARE OF BUILDING
OPERATING COSTS, REAL ESTATE TAXES, AND INSURANCE PREMIUMS
Section 7.3
a. Except for the first full month and partial month, if any, provided for in Section 7.2 herein,
on the first of each month during the Lease Term, Tenant shall pay one-twelfth (1/12) of its
estimated annual pro rata share of real estate taxes, as described in Section 6.2 herein (based
upon the actual real estate taxes for the prior tax year, if any, otherwise based on Landlord's
estimate thereof), one-twelfth (1/12) of its estimated annual pro rata share of Building
Operating Costs as described in Section 7.1 herein and one-twelfth (1112) of its estimated
annual pro rata share of insurance premiums described in Section 8.2 herein, hereafter
collectively referred to as "Tenant's Aggregate Pro Rata Share", in advance in equal monthly
insta1lments. The initial estimated annual pro rata share costs of real estate taxes, insurance
premiums and Building Operating Costs is set forth in the Summary.
b. Within ninety (90) days after the end of each calendar year and within ninety (90) days after
the termination of this Lease, Landlord shall submit a statement to Tenant itemizing the actual
amount of Tenant's Aggregate Pro Rata Share and the difference between said actual amount
and the estimated amounts paid by Tenant during the prior calendar year, if any. Within thirty
(30) days after receipt of said statement, Tenant shall remit to Landlord the difference if any, $
or Landlord shall credit Tenant for the overpayment if any, provided that in the event such
statement is the final statement subsequent to the termination of the Lease, Landlord shall
refund said overpayment, if any, to Tenant. Landlord shall also indicate in said statement any
increases, for the current calendar year. Commencing with the next month following such
statement, Tenant shall pay Landlord a lump sum equal to one-twelfth (1112) of the annual
increase, if any, for each month of the current calendar year which has passed. With the same
payment, Tenant shall commence payment to Landlord of one-twelfth (1112) of the annual
increase by adding that amount to the regular monthly additional rent installments. The
increased monthly additional rent installments shall continue until Landlord shall give Tenant
the next written notice calculating any additional rent increases for further calendar years
upon which the same procedures for payment shall apply.
ARTICLE VIII
INSURANCE
PUBLIC LIABILITY INSURANCElINDEMNITY Section 8.1
a. Tenant's Liability Insurance. Tenant shall, during the entire term hereof, keep in full force
and effect a policy of comprehensive general public liability insurance with personal injury and
property damage liability limits in an amount not less than One Million Dollars ($1,000,000).
The policy shall name Landlord and Tenant as insured and shall comply with Section 8.3
herein. Said policy shall insure any and all claims for injury or damage to persons or property
or for the loss of life or of property occurring upon, in or about the Premises and the public
Page 12 of22
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portions of the Building arising out of or in connection with any act or omission of Tenant,
its employees, agents, contractors, cl!lstomers, and invitees.
b. Tenant shall indemnify, defend and save harmless Landlord from any and all liabilities,
damages, fees (including without limitation reasonable attorney's fees), costs, claims, suits
or actions growing out of: (i) any breach, violation or nonperformance of any covenant,
obligation, agreement, term or condition in this Lease set forth and contained on the part of
the Tenant to be fulfilled, kept, observed and performed; (ii) any damage to property and any
injury to any person or persons including death resulting at any time therefrom, occasioned Ilf
by ~ny act or omission.of~he Tenant, its o~cers, agents, servants, e~p.lo~ees, contractors, PJJ
or licensees, or occurnng III or on the Prenuses or any part thereof .. U .L_ r"'_~-1ItI fft
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injury is due to the act, default or negligence of Landlord, its officers, agents, servants,
employees, contractors, customers, invitees or licensees, (iii) any contract, lien, privilege,
mortgage, charge or encumbrance of the Building arising from or occasioned by the act,
default or negligence of the Tenant, its officers, agent, servants, employees, contractors or
licensee (iv) any proceeding or claim, whether of a criminal or civil nature, commenced
against Landlord in connection with any restriction of the use of other premises in the
Building contained in the Lease.
.,
c. Indemnification of Ten ant. Landlord will indemnify Tenant and save it harmless from and
against any and all claims, actions, damages, liability fee, and expense, including without
limitations, reasonable attorney fees in connection with loss oflife or personal injury, arising
from or out of any occurrence in, upon, or at the common areas which is occasioned by any
act or negligence of Landlord, its agents, or employees, except if caused by the act or
negligence of Ten ant, its agents or employees.
CASUALTY Section 8.2
a. Subject to reimbursement as provided in Section 7.3 and Section 8.2 below, Landlord shall
keep all improvements constructed on the Building, from time to time, excluding Tenant's
improvements and property, insured against loss or damage by fire, with all risk and loss of
rent endorsements, in amounts not less than eighty (80%) percent of the full insurable value
thereof above foundation walls.
b. Tenant's Additional Rent. Tenant shall pay during each lease year during the Lease Term as
additional rent, its pro rata share, of the insurance premiums set forth in Section 8.1.
Tenant's pro rata share ofinsurance premiums shall be computed as set forth in Section 6.2
herein and paid in the manner set forth in Section 7.3 herein.
c. Casualty Insurance Coverage by Tenant. Tenant agrees that it shall keep its improvements,
fixtures, merchandise, inventory, floor coverings, and equipment insured again loss, loss of
business or damage by fire or other casualty with all risk endorsements including without
limitation, sprinkler leakage and flood damage (if flood exposure exists). It is understood and
agreed that Tenant assumes all risk of damage to its own property arising from any cause
Page 13 of 22
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whatsoever, including without limitation, loss by theft or otherwise. Evidence of said
insurance shall be delivered to Laadlord prior to Lease Commencement Date. renant
covenants to comply with any and all rules and regulations applicable to the Premises issued
by the Board of Fire Underwriters or by any other body hereinafter constituted as exercising
similar functions, and insurance companies writing policies covering the Premises.
d. Protection From Subrogation. Anything in this Lease to the contrary notwithstanding, neither
Landlord nor Tenant shall be liable to the other for any business interruption or any loss or
damage to property occurring on the Premises or the adjoining properties, sidewalks, streets,
or alleys, or in any manner growing out of or connected with Tenant's use and occupation
of the Premises, or the condition thereof, or of sidewalks, streets, or alleys adjoining, caused
by the negligence or fault of Landlord or Tenant or of their respective agents, employees,
subtenants, licensees, or assignees, to the extent that such business interruption or loss or
damage to property is required to be covered by a standard all-risk policy, regardless of
whether such insurance is carried or not, or if so carried, regardless of whether such insurance
is payable to or protects Landlord or Tenant or both or regardless of which party is
reimbursed; and Landlord and Tenant each hereby respectively waive all right of recovery
against the other, its agents, employees, subtenants, licensees, and assignees, for any such loss
or for damage to the property. Nothing contained in this Section shall be construed to impose
any other or greater liability upon either Landlord or Tenant than would have existed in the .,
absence of this Section 8.2(d). Each of the parties shall notifY their respective insurance
carrier that the foregoing waiver is contained in this Lease and shall require such carrier to
include an appropriate waiver of subrogation provision in its policies.
e. Additional Hazards. Tenant covenants and agrees that it will not do or permit anything to be
done in or upon the Premises or bring in anything or keep anything therein which shall
increase the rate of insurance on the Premises or on the other buildings above the standard
rate on said Premises and buildings, with a store of the type described in Section 6.1 located
in the Premises; and Tenant further agrees that in the event it shall do any of the foregoing,
it will promptly pay to Landlord on demand any such increase resulting therefrom which shall
be due and payable as additional rent hereunder.
TENANT'S INSURANCE POLICIES
Section 83
a. All insurance policies required of Ten ant pursuant to the terms of this Lease shall be written
in form and substance reasonable and satisfactory to Landlord by reputable insurance
companies licensed and authorized to do business in the state in which the building is located
and shall contain a provision or endorsement that ( ilno act or omission of Ten ant shall affect
or limit the obligation of the insurer to pay the amount ofloss sustained, (ii) all of Tenant's
indemnity obligations under this Lease are insured, (iii) Tenant shall be solely responsible for
the payment of all premiums and that Landlord shall have no obligation to pay same
notwithstanding that Landlord is or may be named as insured, and (iv) that the policy cannot
be canceled or amended except upon thirty (30) days prior written notice to Landlord.
Tenant shall deliver to Landlord a copy of the policy or certificate of insurance prior to
Tenant receiving possession of the Premises hereunder and shall provide Landlord with thirty
Page 14of22
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(30) days notice, as such policies are amended or new policies are issued and Tenant's failure
to provide Landlord with the certificates and policies set forth herein shall not relieve Tenant
of its obligations hereunder.
b. Tenant's failure to provide and keep in force the insurance required herein shall be regarded
as a material default entitling Landlord to exercise any or all of the remedies in the event of
a default under this Lease. Carrying the prescribed insurance shall in no way be construed as
either a limitation or satisfaction of the hold harmless or indemnity provisions contained in this
Lease. In the event Tenant shall not obtain any of the insurance required to be obtained
hereunder, Landlord shall have the right to obtain such insur~nce on Tenant's behalf and
Tenant shall pay to Landlord the cost thereof upon right to review annually the form,
substance and limits of all Tenant's insurance required hereunder and Tenant shall adjust its
insurance required hereunder and/or increase the limits thereof as Landlord shall deem
reasonably necessary.
ARTICLE IX
UTILITIES
CHARGES Section 9.1
a. Beginning on the Lease Commencement Date, or earlier, herein if applicable, Tenant shall
promptly pay for all utility services, including gas, electricity, water, sewer and all other utility
services furnished to Tenant for use in the Premises. If any such services are not separately
metered, Tenant shall pay its proportionate share thereof, as reasonably determined by
Landlord based upon the number of Tenants who use such services and the type of business
in which each such Tenant is engaged. Tenant shall pay such amounts promptly as and when
billed for the same by Landlord. In no event shall Landlord be liable for an interruption or
failure in the supply of any such utilities to the Premises.
ARTICLE X
DAMAGE BY FIRE OR OTHER CASUALTY
NOTICE
Section 10.1
a. Tenant shall give immediate written notice to Landlord of any damage caused to the Premises
by fire or other casualty.
PARTIAL DAMAGE
Section 10.2
a. In the event that during the term hereof the Premises shall be partially damaged (as
distinguished from "substantially damaged" as that term is hereinafter defined) by fire or other
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casualty, Landlord shall, not later than sixty (60) days after the date of such fire or other
casualty, proceed to commence repair of such damage and restore the Premises to
substantially its condition at the time of such damage subject to zoning laws and building
codes then in existence. Landlord shall complete such repairs subject to any delay which may
result from any cause beyond Landlord's reasonable control. Tenant agrees that, promptly
after completion of such work by Landlord, it will proceed with reasonable diligence at its
sole cost and expense to restore its fixtures, equipment and improvements and re-inventory
the Premises for reopening. This lease shall continue in full force and effect during any such
period of repair and restoration_
SUBSTANTIAL DAMAGE Section 10.3
a. In the event that during the term hereof the Premises or Building shall be substantially
damaged or destroyed by fire or other casualty, Landlord shall have the right, to be exercised
by written notice to such effect delivered to Tenant within sixty (60) days after the occurrence
of such event, to terminate this lease. So long as said damage does not interfere with
Tenant's ability to conduct business, Tenant shall have the right to continue or terminate this
lease. If Landlord fails to timely give such notice of its election to terminate, this Lease shall,
except as hereinafter provided remain in full force and effect, and Landlord shall, not later
.,
than sixty (60) days after the date of such fire or other casualty, proceed to commence repair
or re-building of the Premises (or if the damage relates to other portions of the Building, such
portions thereof as Landlord reasonably determines are necessary to be repaired) to
substantially restore their condition to that condition at the time of such damage or
destruction subject to zoning laws and building codes then in existence, but Landlord shall not
be responsible for any delay which may result from any cause beyond Landlord's reasonable
control. Tenant shall restore pursuant to Section 1O.2-(a) herein. This Lease shall continue
in full force and effect during any such period of repair and restoration.
ABATEMENT
Section 10.4
a. Tenant agrees that during any period of reconstruction or repair of the Premises, it will
continue the operation of its business within the Premises to the extent practicable. During
the period from the occurrence of the casualty until Landlord's repairs are completed, the
Minimum Rent shall be reduced to such extent as may be fair and reasonable under the
circumstance. If the Premises are untenantable during such period of repair or restoration,
Tenant's Minimum Rent shall abate in its entirety during such period.
DEFINITION OF SUBSTANTIAL DAMAGE
Section 10.5
a. The term "substantial damage" shall mean forty (40%) percent or more of damage to the
Premises.
ARTICLE XI
EMINENT DOMAIN
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PARTIAL OR TOTAL CONDEMNATION
Section 11.1
a. If the whole or any part of the Premises shall be taken by any eminent domain (which shall
include a voluntary sale or transfer under threat of condemnation), Tenant shall have no claim
against Landlord nor shall it be entitled to any portion of any award for damages or otherwise.
In the event only a portion ofthe Premises are taken, the Lease shall cease as to the part taken
and the Minimum Rent, additional rent, and other charges due herein, shall be adjusted so that
Tenant shall be required to pay for the balance of the term that portion of the rent and other
amounts herein reserved which the value of the part of the Premises remaining after
condemnation bears to the value of the Premises immediately prior to the date of
condemnation. The rental and other charges shall be apportioned as aforesaid by agreement
between the parties or by legal proceedings, but pending such determination, Tenant shall pay
at the time and in the manner above provided the rental herein reserved, and all other charges
herein required to be paid by Tenant, with deduction. Upon such determination, Tenant shall
be entitled to credit for any excess rentals paid.
b. If, however, by reason of the condemnation there is not sufficient space left in the Premises
for Tenant to conduct business in substantially the manner in which it was being conducted
immediately prior to such taking, or the taking of parking and common area is so substantial .
as to render the Premises unsuitable and unfit for which they were rented, then and in such .,
events the Lease shall terminate as of the date of title vesting in such proceeding. Although
all damages in the event of condemnation belong to Landlord whether awarded as
compensation for diminution in value of the leasehold or to the fee of the Premises, nothing
herein shall be construed to prevent Tenant from claiming and recovering from the
condemning authority such compensation as may be separately awarded or recoverable by
Tenant in Tenant's own right so long as any such award in no way reduces Landlord's award.
ARTICLE XII
ASSIGNMENT AND SUBLETTING
CONSENT REQUIRED
Section 12.1
a. Tenant may not assign this Lease and/or sublet the Premises, or any part thereof, without in
each instance obtaining the written consent of Landlord, which will not be unreasonably
withheld. The consent of Landlord to any assignment or subletting shall not constitute a
waiver of the necessity for such consent to any subsequent assignment or subletting. If any
subtenant or assignee, pursuant to any subletting or assignment in accordance with the
provisions hereof is obligated to pay any amount in excess of the Minimum Rent and all
additional rent required to be paid hereunder by Tenant (hereafter "excess rent"), Landlord
shall be entitled to receive all excess rent. Further, in the event any consented to assignee or
subtenant intends to use the Premises for any purpose other than that set forth in Section 4.1
and Landlord consents to such use which shall be in Landlord's sole discretion.
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b. If Tenant assigns or sublets without Landlord's consent, in addition to its other rights and
remedies, Landlord shall have the option, in its sole discretion of terminating the Lease. In
the event that Tenant shall seek Landlord's permission to assign or sublet, Tenant shall
provide to Landlord the name, address and financial statement of the proposed assignee or
sublessee and such other information as Landlord may require. It shall be a condition to any
consent by Landlord that Tenant shall accompany such request with a check in the amount
of not less than Three Hundred and 00/100 Dollars ($300) to reimburse Landlord for
administrative and legal expenses for the review and preparation of necessary documents.
ARTICLE XIII
SUBORDINATION
LEASE SUBORDINATION TO MORTGAGES AND DEEDS TO TRUST
Section 13.1
a. It is agreed that this Lease shall be subject and subordinate to any mortgages or trust deeds
that may hereafter be placed on the building, and the leased premises and to any and all
advances to be made thereunder, and to the interest thereon, and all renewals, replacements,
,
modifications, consolidations and extensions thereof, provided the mortgagee or trustee
named in said mortgages or trust deeds shall agree to recognize the said Lease of Lessee in
the event offorec1osure if Lessee is not then in default.
ARTICLE XIV
RIGHT OF ENTRY
RIGHTOFENTRY Sectionl4.1
a. Landlord or Landlord's agents shall have the right to enter the Premises at all reasonable
times to examine the same, including immediate entry in the event of an emergency, and to
make such repairs, alterations, improvements or additions as Landlord may deem necessary.
Landlord may interrupt or suspend the supply to the Premises of any services of utilities
where necessary until such repairs, alterations, improvements or additions shall have been
completed.
b. During the six (6) months prior to the expiration of the Lease Term, Landlord may exhibit the
Premises to prospective tenants or purchasers, and place upon the Premises the usual notices
"To Let" or "For Sale" which notices Tenant shall permit to remain thereon without
molestation.
ARTICLE XV
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DEFAULT
EVENTS OF TENANT DEFAULT Section 15.1
a. The occurrence of any of the following shall constitute an event of default hereunder:
1. The filing of a petition by or against Tenant for adjudication as a bankrupt or
insolvent, or for its reorganization or for the appointment of a receiver or trustee of
Tenant's property; an assignment by Tenant for the benefit of creditors; or the taking
possession of the property of Tenant by any governmental officer or agency pursuant
to statutory authority for the dissolution or liquidation of r enant; or a filing by Tenant
for relief under the Bankruptcy Code.
2. Failure of Tenant to pay when due any installment of rent hereunder or any other sum
herein to be paid by Tenant. Tenant shall have ten (10) days to cure said default upon
written notice by Landlord to Tenant. In the event Tenant is in default for failure to
timely pay said sums, in excess of two (2) times in any lease year, written notice shall
not be required by Landlord in order to pursue any of Landlord's rights and remedies
herein.
3. Vacating or deserting the Premises or permitting the same to be empty and
unoccupied.
.,
4. Tenant's removal or attempt to remove, or manifesting an intention to remove
Tenant's goods or property from or out of the Premises otherwise than in the ordinary
and usual course of business without having first paid and satisfied Landlord for all
rent which may become due during the entire term oftIDs lease.
5. Tenant's failure to perform any other covenant or condition of the Lease within thirty
(30) days after notice.
LANDLORD'S REMEDIES Section 15.2
a. In the event Lessee defaults as hereinabove provided, in addition to all other rights and
remedies available in law or equity or granted elsewhere in this Lease, Lessor shall also have
the right to do once or more often anyone or more of the following: ~f
L declare due and payable and sue to recover unpaid rent and all other charges due and Ii
payable by Lessee to lessor including rent f II ." , 'r., . r T ~ r II and all
costs and commissions provided or permitted by law;
2. enter the leased premises and distrain upon and sell any property therein which may
be lawfully subject to distraint;
~. lease all or any part of the leased premises to any other person with or without first
altering the same;
4. enter an amicable action and judgment in ejectment against Lessee, using this Lease
or a copy hereofas authority and causing a writ of possession to be issued.
Lessee hereby empowers any attorney of any court of record to appear for it one or more
times and to take on its behalf any or all of the actions described in this section including the
entry of judgment of confession, agreement or otherwise.
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ARTICLE XVI
MISCELLANEOUS PROVISIONS
HOLDING OVER Section 16.]
a. In the event that Tenant shall continue to occupy the Premises after the expiration of the term
of this lease, said tenancy sha1l be construed to be a tenancy from month to month at a rental
equal to one hundred fifty (150%) percent of the Minimum Rent herein specified then being
paid by Tenant, whichever is greater, plus all additional rent and upon all of the other terms
and conditions herein contained except where same are not applicable.
ENTIRE AGREEMENT
Section 16.2
a. This lease constitutes the sole understanding ofthe parties hereto and any amendments or
additions shall be effective only when reduced to writing and signed by the parties hereto.
NOTICES
Section 16.3
a. Legal notice wherever provided in this Agreement, by statute or common law shall be ten (10) ,
days in advance of any proceedings and shall be given to Lessee by mailing a copy of said
notice by certified mail (as set forth in the Summary).
RECORDING
Section 16.4
a. Lessee may, at its option, record this Lease or a short form lease executed by all parties with
the costs of said recording to be paid by the Lessee. Lessor covenants and agrees
immediately after receipt of the short form lease and other documents and agreements as may
be required, to have the same properly executed and acknowledged and return the same to
the Lessee.
SECURITY DEPOSIT
Section 16.5
a. Tenant, contemporaneously with the execution of this Lease, has deposited with Landlord to
Landlord's agent, the security deposit set forth in the Summary, receipt of which is hereby
acknowledged by Landlord. Said deposit shall be held by Landlord, without liability for
interest, as security for the faithful performance by Tenant of all the terms, covenants, and
conditions of this Lease by said Tenant to be kept and performed during the term hereof.
b. In the event of the failure of Ten ant to keep and perform any of the terms, covenants, and
conditions of this Lease to be kept and performed by Tenant, then Landlord at its option may
appropriate and apply said entire deposit, or so much thereof as may be necessary, to
compensate Landlord for loss or damage sustained or suffered by Landlord due to such
breach on the part of Tenant. Should Tenant comply with all of said terms, covenants and
conditions and promptly pay all of the rental herein provided for as it falls due, and all other
Page 20 of 22
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sum payable by Tenant to Landlord hereunder, the said deposit shall be refunded in full to
Tenant at the end of the term of this 'Lease,' or upon the earlier termination of this Lease.
OPTION TO EXTEND LEASE TERM
Section 16.6
a. Tenant shall have the right to extend the Lease Term for the consecutive periods of years set
forth in the Summary upon the same terms and conditions as contained in this lease, at the
Minimum Rent set forth in the Summary provided: (i) this lease has not been previously
terminated pursuant to its terms, and (ii)Tenant is not and has not at any time been in default
under any of its covenants, obligations and agreements under this ):.ease, and (iii) Tenant gives
to Landlord written notice of its intention to renew this Lease not more than one hundred
eighty (180) days nor less than one hundred twenty (120) days prior to the expiration of the
Lease Term or the prior option period whichever the case may be.
Page 21 of22
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IN WITNESS WHEREOF THE RESPECTIVE PARTIES HERETO HAVE CAUSED THESE
PRESENTS TO BE SIGNED, SEALED AND DELIVERED ON THE DATE FIRST ABOVE .
WRITTEN.
THIS LEASE MUST BE EXECUTED FOR TENANT, IF A CORPORATION, BY THE
PRESIDENT OR VICE-PRESIDENT AND ATTESTED BY THE SECRETARY OR ASSISTANT
SECRETARY, UNLESS THE BY-LAWS OR A RESOLUTION OF THE BOARD OF
DIRECTORS SHALL OTHERWISE PROVIDE, IN WHICH EVENT A CERTIFIED COPY OF
THE BY-LAWS OR RESOLUTION, AS THE CASE MAY BE, MUST BE FURNISHED TO
LANDLORD.
THIS LEASE MUST BE EXECUTED FOR TENANT, IF AN INDIVIDUAL(S), BY EACH
INDIVIDUAL(S) AND EACH SIGNATURE MUST BE WITNESSED.
THIS LEASE MUST BE EXECUTED FOR TENANT, IF A PARTNERSHIP, BY A GENERAL
PARTNER AND EACH SIGNATURE MUST BE WITNESSED.
Attest/Witness
TENANT:
By ~7~U~J
Title: ;
By:
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Print or Type INam~
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Title: c::.<>
Date: J/;l.~h~
LANDLORD:
Barry L. Pagliaro
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Name: ~R,ey ~r.; L/~"e6
Title:
By:
Date:
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September 21, 2000
Your Golf Shop, Inc.
Mr. Mark Parthemer, Esquire
100 Pine Street
P. 0. Box 1166
Harrisburg, Pa. 17108
RE: Delinquent Rent
Dear Mr. Parthemer,
This is to give notice that Your Golf Shop, Inc. Suite B, 340 I Hartzdale Drive, Camp
Hill, Pa. is delinquent on their September rent. In accordance with Article II, Section 2.1
of your lease Agreement, rents are due and payable on the first day of each calendar
month.
Also in accordance with Article II, Section 2.3 of your Lease, the landlord is entitled to
charge a 10% late charge on all overdue amounts.
The total delinquency tor the month of September is $3,234.09. The total delinquency,
plus 10% late charge amounts to a total due and owning of $3,557.50.
In accordance with Article XV, you are hereby given notice that the sum of$3,557.50 is
payable within ten (10) days from the date of this notice. Failure to pay the delinquent
amount in full will result in the landlord declaring you in default under the terms of the
Lease Agreement and thereby permitting the landlord to enter an amicable action and
judgement in ejectment to recover the property, as well as initiate legal proceedings for
the collection of all amount due and owning under the Lease Agreement.
If there are any questions, please contact me.
Very truly yours,
Barry P~o
Cct-tharles DeHart, Esquire
Bill Rothman
George Sheleman
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CERTIFICATE OF SERVICE
AND NOW, this o13IU/. day of October, 2000, I hereby certify that I have served a copy of
the within document on the following by depositing a true and correct copy ofthe same in the
U.s. Mail at Harrisburg, Pennsylvania, postage prepaid, addressed to:
Mark Parthemer, Esquire
100 Pine Street
P.O. Box 1166
Harrisburg, P A 17108
Attorney for Defendant, Your Golf Shop, Inc.
CALDWELL & KEARNS
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BARRYL. PAGLIARO,
: IN THE COURT OF COMMON PLEAS
: CUMBERLAND COUNTY, PENNSYLVANIA
Plaintiff
v.
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: NO. fJO- 753.2.-
YOUR GOLF SHOP, INe.,
Defendant
: CIVIL ACTION - LAW
: IN EJECTMENT
NOTICE UNDER RULE 2973.3 OF JUDGMENT AND EXECUTION THEREON
TO: YOUR GOLF SHOP, INC.
3401 Hartzdale Drive
SuiteB
Camp Hill, PA 17011
Ajudgment for possession of real property and attorney's fees of$l ,000.00 plus costs have
been entered against you and in favor of the Plaintiff without prior notice and hearing based on a
confession of judgment contained in a Lease or other document allegedly executed by you. The
court has issued and the sheriff has served a writ of possession which directs the sheriff to remove
you from the possession of the real property.
You may have legal rights to defeat the judgment or to prevent your being removed from the
property or to regain possession of the property if you have been removed, if you did not voluntarily,
intelligently and knowingly give up your constitutional right to notice and hearing prior to the entry
of judgment or if you have defenses or other valid objections to the judgment. ANY PETITION
SEEKING RELIEF FROM THE JUDGMENT AND TO REGAIN POSSESSION MUST BE FILED
WITHIN THIRTY (30) DAYS AFTER THE DATE ON WHICH THIS NOTICE IS SERVED ON
YOU OR YOU MAY LOSE YOUR RIGHTS.
If you have been removed from the property without notice or the opportunity for a hearing,
you have a right to a prompt court hearing if you claim that you did not voluntarily, intelligently and
knowingly give up your rights to notice and hearing prior to entry of the judgment. If you wish to
exercise this right, you must immediately fill out and sign the request for hearing which accompanies
the writ of possession and deliver it to the Sheriff of Cumberland County at the Cumberland County
Courthouse, One Courthouse Square, Carlisle, Pennsylvania, 17013.
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YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT
HAVE A LAWYER, OR CANNOT AFFORD ONE, GO TO OR TELEPHONE THE
OFFICE SET FORTH BELOW TO FIND OUT WHERE YOU CAN GET LEGAL HELP.
CUMBERLAND COUNTY LAWYER REFERRAL SERVICE
Cumberland County Bar Association
2 Liberty Avenue
Carlisle, PAl 70 13
(717) 249-3166
Respectfully submitted,
CALDWELL & KEARNS
By:
C- ) --~~
Charles J. DeHart, III, Esquire
Attorney ID No. 15617
3631 North Front Street
Harrisburg, Pennsylvania 17110-1533
(717) 232-7661
Attorney for Plaintiff, Barry Pagliaro
Date: lor 'L;/ou
005236/1 6432