HomeMy WebLinkAbout07-4722REALER &ADLER, P.C.
BY:JOHN H. PIETRZAK, ESQUIRE
Attorney I.D. No. 79538
Email: ~ietrzak cr,Reag_erAdlerPC.com
BY: THOMAS O. WILLIAMS, ESQUIRE
Attorney LD. No. 67987
Email: Twilliams(a~,Rea~erAdlerPC.com
2331 Market Street
Camp Hill, PA 17011
Telephone: (717) 763-1383
Facsimile: (717) 730-7366
Attorneys for Brandy Investors, LP
BRANDY INVESTORS, LP, IN THE COURT OF COMMON PLEAS,
Plaintiff :CUMBERLAND COUNTY, PENNSYLVANIA
v. :CIVIL ACTION ~j--
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CALABRESE & SONS, INC. and, NO. C~? ~~~~ ~~v ~' v ~~1nr~
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JOSEPH CALABRESE,
Defendants :CONFESSION OF JUDGMENT
PRAECIPE FOR ENTRY OF JUDGMENT BY CONFESSION
TO THE PROTHONOTARY:
Kindly enter judgment by confession in the above-captioned matter against the
Defendants, both jointly and severally, and assess damages in the amount of $74,955.14, plus
interest from August 6, 2007, as follows:
Principal $67,839.61
Interest $ 301.43
Collection fees ,~~814.10
Total: $74,955.14
Respectfully submitted,
REALER &ADLER, P.C.
Date: August 8, 2007
Jo H. Pietrzak, Es uire
Attorney for Defendants
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REALER &ADLER, P.C.
BY:JOHN H. PIETRZAK, ESQUIRE
Attorney I.D. No. 79538
Email: ~ietrzak(a~ReagerAdlerPC com
BY: THOMAS O. WILLIAMS, ESQUIRE
Attorney I.D. No. 67987
Email: Twilliams(a,ReagerAdlerPC com
2331 Market Street
Camp Hill, PA 17011
Telephone: (717) 763-1383
Facsimile: (717) 730-7366
Attorneys for Brandy Investors, LP
BRANDY INVESTORS, LP, IN THE COURT OF COMMON PLEAS,
Plaintiff :CUMBERLAND COUNTY, PENNSYLVANIA
v• :CIVIL ACTION
CALABRESE & SONS, INC. and, NO. O?' - ~7~a, !v 1, ~.~
JOSEPH CALABRESE,
Defendants :CONFESSION OF JUDGMENT
CONFESSION OF JUDGMENT
Pursuant to the authority in the Warrant of Attorney, the original or a copy of which is
attached to the Complaint filed in this action, I appear for the Defendants and confess judgment
in favor of the Plaintiff and against Defendants as follows:
Principal $67,839.61
Interest $ 301.43
Collection fees 6 814.10
Total: $74,955.14
Respectfully submitted,
REALER &ADLER, P.C.
Date: August 6, 2007
J H. Pietrzak, Esq ire
Attorney for Defendants
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REAGER & ADLER, P.C.
BY:JOHN H. PIETRZAK, ESQUIRE
Attorney I.D. No. 79538
Email: Jpietrzak ,.ReagerAdlerPC.com
BY: THOMAS O. WILLIAMS, ESQUIRE
Attorney I.D. No. 67987
Email: Twilliams(cc~Rea~erAdlerPC.com.
2331 Market Street
Camp Hill, PA 17011
Telephone: (717) 763-1383
Facsimile: (717) 730-7366
Attorneys for Brandy Investors, LP
BRANDY INVESTORS, LP, IN THE COURT OF COMMON PLEAS,
Plaintiff :CUMBERLAND COUNTY, PENNSYLVANIA
v. :CIVIL ACTION
CALABRESE & SONS, INC. and, NO. ~'~' -. ,C.~ ~~, ~, ~ v i
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JOSEPH CALABRESE, .
Defendants :CONFESSION OF JUDGMENT
COMPLAINT IN CONFESSION OF JUDGMENT
1. Plaintiff, Brandy Investors, LP (hereinafter "Brandy") is a Pennsylvania limited
partnership with a mailing address of c/o RSR Realtors, 3 Lemoyne Drive, Suite 100, Lemoyne,
Pennsylvania 17043.
2. Defendant Calabrese & Sons, Inc. (hereinafter "C&S") is a Pennsylvania
corporation, with a mailing address of 406 Brandy Lane, Mechanicsburg, Pennsylvania, 17055.
3. Defendant Joseph Calabrese is an adult individual, with an address of 25
Devonshire Square, Mechanicsburg, PA 17055.
4. This is an action to confess judgment for damages arising out of C&S's default of
a commercial lease entered into between Brandy and C&S on June 9, 2006.
5. Judgment is not being entered by confession of judgment against a natural person
in connection with a consumer credit transaction.
6. On June 9, 2006, Brandy and C&S entered into a commercial lease agreement
(hereinafter the "Lease") under which Brandy demised and let certain office and warehouse space
located at 406 Brandy Lane, Mechanicsburg, Pennsylvania 17055 to C&S for a period often (10)
years.
7. Joseph Calabrese (hereinafter "Calabrese") signed executed a Personal Guaranty
of Lease, as an individual guarantor, obligating himself individually to all of the duties and
obligations of C&S under the Lease.
8. C&S has defaulted under the terms of the Lease by failing to pay the rent due and
owing for July 2007, in the amount of $23,925.21. The amount in arrears for July 2007 rent,
including the 5 % late penalty provided for in the Lease of $1,196.26, and 1 % interest per month
of $251.21 is $25,345.68.
9. C&S has further defaulted under the terms of the Lease by failing to pay the rent
due and owing for August 2007, in the amount of $23,925.21. The amount in arrears for August
2007 rent, including the 5% late penalty provided for in the lease, and 1% interest from August 1,
2007 of $50.22, is $25,171.69.
10. C&S has further defaulted under the terms of the Lease by failing to pay taxes due
and owing in the amount of $10,000 and current insurance premiums due and owing in the
amount of $7,596.67, plus $2.59 per day beyond August 6, 2007.
1 1. A true and correct copy of the Lease under which Plaintiff has confessed judgment
is attached hereto and incorporated herein, as Exhibit "A".
12. The Lease under which judgment is being confessed has not been assigned.
13. The principal balance due under the Lease is $67,839.61 plus interest at the rate of
1 % per month, in the current amount of $301.43, together with collection and attorney's fees of
10% as authorized by the Lease, in the amount of $6,814.10, for a total of $74,955.14.
14. Judgment has not been entered against C&S or Calabrese in any jurisdiction for
the unpaid sum of $74,955.14 of the debt here demanded.
15. Judgment is demanded as authorized by the Warrant of Attorney contained in the
Lease attached as Exhibit "A".
16. The Warrant appearing in the attached Lease is less than twenty (20) years old.
WHEREFORE, Plaintiff, Brandy Investors, LP, demands judgment against Defendants,
Calabrese & Sons, Inc. and Joseph Calabrese, in the sum of $74,955.14, plus interest, taxes and
insurance premiums, which continue to accrue, as authorized by the Warrant appearing in the
attached Lease, together with interest from the date of judgment and costs.
Respectfully submitted,
REAGER & ADLER, P.C.
Date: August 8, 2007
J~Iin H. Pietrzak, Esq~re
Attorney I.D. No. 79538
Thomas O. Williams, Esquire
Attorney I.D. No. 67987
2331 Market Street
Camp Hill, PA 17011-464
Telephone: (717) 763-1383
Attorneys for Plaintiff, Brandy Investors, LP
• ' , shcldlbtrsrlbrandy~calabrese.lease
June 9, 2006
COMMERCIAL LEASE AGREEMENT
THIS LEASE AGREEMENT, made as of the 9th day of June, 2006, by and between
BRANDY INVESTORS, L.P., a Pennsylvania limited partnership, with a mailing address of c/o
RSR Realtors, 3 Lemoyne I3rive, Suite 100, Lemoyne, PA 17043, hereinafter referred to as
"Landlord", and CALABRESE & SONS, INC., a Pennsylvania business corporation, with a
mailing address of P.O. Box 1667, Mechanicsburg, PA 17055, hereinafter referred to as
"Tenant".
WHEREAS, Landlord desires to lease to Tenant the premises comprised of an office
and warehouse located at 4U6 Brandy Lane, Borough of Mechanicsburg, Cumberland
County, Pennsylvania (the "Building"), and the Tenant desires to lease the same upon the terms
and conditions and for the good and valuable considerations described in this lease agreement,
hereinafter sometimes referred to as the "Lease";
NOW THEREFORE, the parties hereto agree as follows:
1. LEASED PREMISES. Landlord leases, demises and lets to the Tenant, office and
warehouse space identified as the Building, and hereinafter sometimes referred to as the
"Premises", and Tenant hereby leases from Landlord the entire Premises known as 406
Brandy Lane, Mechanicsburg, Cumberland County, Pennsylvania 17055, consisting
of an approximate 80,000 square foot Building, together with all easement rights and
appurtenances applicable thereto.
2. TERM. The term of this Lease is for a period of ten (10) years, commencing on the 9th
day of June, 2006 (the commencement date), being the date of the real estate settlement
of the sale of the Premises from Tenant (Seller) to Landlord (Buyer), and ending at
midnight on the 30th day of June, 2016. Landlord and Tenant acknowledge that Tenant is
currently in possession of and occupies the Premises as of the commencement date.
Provided this Lease is not in default, Tenant is granted an option to renew this Lease as
follows: (1) at the option of Tenant, the term of the Lease may be extended for two (2)
renewal periods of five (5) years each by written notice to the Landlord at least 180 days
prior to the expiration of the term or any renewal term thereof, as the case may be; (2)
upon any valid exercise of any such option to renew, terms of the Lease shall remain in
full force and effect except that the minimum annual rent for each renewal period shall be
adjusted as set forth in Paragraph 3 below.
3. RENTAL. Tenant shall pay to Landlord a total rent of $280,100.00 during the first (1St)
year. term of the Lease, payable in monthly installments of $23,341.67. In addition,
Tenant shall pay such Additional Rent, as set forth herein. The monthly rental shall be
payable in advance on the first day of each month beginning as of the commencement
date set forth in Paragraph 2 above, at such address designated by Landlord in Paragraph
she\diblrsr\brandy\calabrese.lease
June 9, 2006
20 (entitled Notices) herein below, or such other places as the Land
subject to the following: at the time of settlement on the sale of lord may designate,
Tenant (Seller) to Landlord (Buyer), Tenant will provide Land the real estate from
(3) months base rent in the amount of $70,025.00 to be held b .Land i~ a credit of three
for the month of June 2006 will be prorated at settlement. Re 1 lord in escrow. Rent
Tenant, shall thereafter commence in advance on the first gn ar rental payments by
The rent as set forth above shall remain constant for the firsts 1 Sof the following month.
ove ther, °n an annual basis rent shall increase by tvvo and )year °f the lease term.
pnor lease year s rent as follows: one half percent (2.5%)
Lease Year
year 1: Annual Rent
Monthl Rent
Year 2: $280,100.00
$287
102
50 $23,341.67
Year 3: ,
.
$294
280
06 $23,92.5.21
Year 4: ,
.
$301
637
06 $24,523.34
Year 5:. ,
.
$309
177
98 $25,136.42
Year 6:
Year 7: ,
.
$316,907.42 $25,764.83
$26,408.95
Year 8: ; $324,830.10
$332
950
85 $27,069.18
Year 9: '
~ ,
.
$341
274
62 $27,745.90
Year 1Q
: ,
.
$349
806
48 $28,439.55
,
. $29,150.54
Any rental payment not received by the 5`h of the month shall b
e su °
b~ ect to a 5 /o late fee
The rent for the renewal t .
erms set forth in Paragraph 2 above sha
Tlrncrease by two and
one-half percent (2.5%°) above the prior lease year's
re
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, as the case maybe. .
n or rio
P enewal lease year's
All amounts (other than Rental, which shall be payable as her
the ~ Tenant to the Landlord hereunder shall be paid within f m set forth) owed by
date that Landlord; renders statements of account therefoVe (5) days from the
(including Rental) not paid when due shall accrue and bear ire and all amounts
one percent 1 % ~ nterest at the rate of
( )per month (twelve percent (12%) annually) until aid.
the essence in Tenanet's payment of Rental and Tenant's erf p Time is of
every term, covenant and condition of this Lease incumbentan T naance of each and
nt.
4• REAL ESTATE TAXES,
A• Real Estate Taxes. As Additional Rent, Tenant a ees
levied. upon the subject pro e ~ tO pay all real estate taxes
P rty of any nature including future assessments.
Payments by Tenant of all real estate taxes shall commence simul
the rentals hereunder. taneously with
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June 9, 2006
B. Personal Property Taxes. Tenant. agrees to pay any and all taxes levied upon the
personal property, including trade fixtures and inventory, kept on the premises, as
well as all taxes levied against the land and the building and improvements
situated thereon or on the rents derived by Landlord therefrom during the term of
the Lease after~presentation to Tenant by Landlord of statements from the taxing
jurisdiction m wluch said property is located.
Landlord may, ,, however, direct the taxing authorities to send the statements
directly to the :.Tenant. Landlord further agrees that Tenant, in the name of
Landlord, but ~.t Tenant's sole expense, may protest any assessment before any
taxing authority or board or maintain any necessary legal action in reference to
said assessment or for the recovery of any taxes paid thereon. Nothing herein
contained shall require Tenant to pay any income or excess profit taxes assessed
against Landlord or any corporation, capital stock or franchise tax imposed upon
Landlord.
C. Method of Payment. Landlord shall give written notice advising Tenant of the
amount of real estate taxes, together with a copy of the tax bill, and Tenant shall
pay such amount to Landlord within the first thirty (30) days of the face amount
period.. Landlord and Tenant acknowledge that at the real estate closing
Landlord (Buffer) will not reimburse Tenant (Seller) for the current year real
county/township and school real estate taxes that have been paid by Tenant,
and Tenant w$ll be considered paid until the next calendar or fiscal year tax
billing periody as applicable. If this. Lease shall terminate during a tax year,
Tenant shall ply to Landlord a pro rata portion of the amount that would have
been due for the full tax year based on the number of days of said tax year expired
on the date of termination.
5. UTILITIES AND SERVICES. Tenant shall contxact in its own name for and promptly
pay all charges for electricity, gas, water, sewer, telephone and any other utility used or
consumed in the Premises to the concern furnishing the same.
Landlord shall not be .liable in any way to Tenant for any failure or defect in or of any
utility service furnished to the Premises by reason of any requirement, act or omission of
the public utility company serving the Premises with electricity, water or other utility
service, or because of necessary repairs or improvements. Tenant's use of electric energy
in the Premises shall not at any time exceed the capacity of any of the electrical
conductors and equipment in or otherwise serving the Premises. To insure that such
capacity is not exceeded and to avert possible adverse effect upon the Building electric
service, Tenant shall Ys~t, without Landlord's prior written consent in each instance (which
shall not be unreaso~iably withheld) connect any additional fixtures, appliances or
t.
equipment (other than lamps, typewriters and similar small office machines) to the
Building electric distribution systems or make any alteration or addition to the electric
system of the Premises existing on the commencement date of this Lease.
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June 9, 2006
6. MAINTENANCE OF LEASED PREMISES.
A. Maintenance by Tenant. Tenant shall, at its sole cost, keep and maintain the
interior Leased :Premises [together with exterior (i) windows,. including sashes, (ii)
heating, ventilating and air .conditioning equipment and sewer and other lines
serving the Leased Premises], including without limitation, the partitions, ceiling,
interior portions of exterior walls, floor covering therein, and the fixtures,
equipment, machinery, appliances and utility lines therein and appurtenances
thereof [such as, but not limited to, lighting fixtures and lenses and such fixtures,
equipment, machinery controls, appliances and utility- lines and appurtenances
thereof, as are ~~used for, in connection with or which are a part of the electrical,
plumbing, heating, air conditioning, ventilating„ or any other mechanical systems
in or serving t~:e Leased Premises], in conformity with Landlord's hazard insurer,
neat and clean end in good order, condition, maintenance and repair. Tenant shall
also at its cost 'procure and maintain in the Leased premises all safety appliances
required by Landlord's hazard insurer to be maintained therein. Tenant .shall be
responsible for the cost of replacement of any and all plate; window and other
glass (structural or otherwise) in, on or about the Leased Premises, which may be
broken or destroyed. Before undertaking repairs to the Leased Premises (other
than minor interior non-structural repairs), Tenant shall first obtain Landlord's
approval of the plans and specifications therefore, which approval is not to be
unreasonably withheld. Tenant shall contract with a heating and air conditioning
contractor, approved by Landlord, who shall provide a complete service and
maintenance contract to Tenant at least annually, the inspection of the HVAC
equipment serving the Leased Premises, including a written report of the
condition there of to be provided to Landlord and Tenant, the periodic oiling of
the equipment where required, the tightening of belts, the filling of pitch pans and
the sealing of .water leaks, among other things. The service and maintenance
contract and itg related costs shall be the sole cost and expense of the Tenant. The
existence of a service contract with a Landlord approved vendor shall not relieve
Tenant of its ~`: obligations to maintain and repair such equipment as above
provided. t
i
B. Roof Repair and Replacement. The current condition of the roof requires repair
the cost of which has been provided for through the escrow of funds by Tenant
(Seller) at the time of closing on the sale of the real estate to Landlord (Buyer).
Landlord shall `make such required repairs and use said escrow funds. In addition,
to the extent that the existing roof requires replacement during the term of this
lease, or any renewal terms, Landlord's cost of the roof replacement shall be
amortized over the remaining lease term, including any renewal terms, and
Tenant's rent shall be increase by said amount. Landlord shall give Tenant thirty
(30) days advance notice of any increase in rent.
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sNcldibtrsrlbrandylcalabrese.lease
June 9, 2006
C. Maintenance by Landlord. Subject to the obligations of Tenant under the
provisions of B above, the foundations, roof (excluding interior ceilings) and
,.
except as specifically provided in B above, and exterior portions of the exterior
walls of the Lased Premises shall be maintained by Landlord at its expense ~ in
good order, condition, maintenance and repair.. Landlord shall not be deemed to
have breached its obligation to make the repairs.required of Landlord as set forth
in this Section, or to be liable for any damages resulting therefrom, unless
Landlord fails F to make the same within a reasonable period (taking into
consideration tY~e type of repair involved) after receiving notice from Tenant of the
need therefor.
7. SECURITY. The three (3) month base rent balance in the. amount of $70,025.00 set
forth in Paragraph 3 above shall serve as Landlord's deposit the receipt of which is hereby
acknowledged as security for the full and faithful performance by Tenant of each and
every term, covenant, and condition of this Lease. In the event.that Tenant defaults in any
of the terms, provisions, covenants, and conditions of this Lease, including but not
limited to payment of :any rental or additional rental, Landlord may use, apply, or retain
the whole or any part' of the security so deposited for the payment of any such sum in
default, or for any other sum which Landlord may expend or be required to expend by
reason of Tenant's deult, including any damages or deficiencies in the reletting of the
premises, whether s~,ch damage or deficiency may occur before or after -some .
repossession proceeding or other reentry by Landlord. In the even that Tenant shall fully
and faithfully comply with all the terms and conditions of this Lease, the security or any
balance thereof, shall be returned to Tenant after expiration of the lease term. The Tenant
shall not be entitled to any interest on the aforesaid security. If the Landlord utilizes any
of the security deposit;in curing a default on the part of Tenant, Tenant shall immediately
pay Landlord the amount necessary to restore the security deposit to its original amount.
8. PERMITTED USES BY TENANT. Tenant represents, covenants and warrants that the
Premises will be used lawfully for the following purposes:
A machine shop operation
9. OTHER IMPOSITIONS. In addition to the Rental provided hereunder, Tenant agrees to
pay each and all licenses and permit fees and all taxes and increase in taxes levied and
assessed by any governmental body by virtue of any special leasehold improvements or
by virtue of Tenant conducting its described use, business or operation on the Premises,
the employment of agents, servants, or other third parties, the bringing, keeping or selling
of personal property or.chattels of whatsoever nature from the Premises. The foregoing is
intended to bind Tenant to pay, and promptly discharge, all taxes and/or levies, together
with related interest and penalties, whether assessed by Federal, or State authority or any
political subdivision thereof, directly or indirectly related to its business, improvements,
functioning, employri`ent, assets, existence, sales entertainment or the like. Tenant
specifically agrees to reimburse Landlord for any increase in ad valorem taxes resulting
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• ' . si~cldib\rsrlbrandylcalabrese.lease
June 9, 2006 .
from use of fixtures or improvements by Tenant which Landlord becomes obligated to
PaY•
10. ASSIGNMENT AND SUBLEASE. Tenant shall not make or permit any assignment
(by operation of law or otherwise) of this Lease without the prior express written consent
of Landlord.. Tenant shall make no sublease or mortgage of this Lease, in whole or in
part, without the prior express written consent of Landlord. Tenant shall not permit the
use or occupancy of the Premises, or any portion thereof, by anyone other than Tenant
and shall not make an~ transfer of any nature whatsoever of its right under this Lease or
of Tenant's interests sit forth in this Lease without. the prior written consent of Landlord
first had and obtained,~~ Any such assignment or any such subletting, whether approve by
Landlord or not, shall not relieve the Tenant of any liability for the total agreed rentals
due hereunder nor from Tenant's obligation to perform all the covenants herein contained.
Any written consent Qvhich may in any specific instance or circumstance be given by
Landlord shall not imply or be deemed to be consent in any other instance or
circumstance.
11. SUBORDINATION, ATTORNMENT AND NON-DISTURBANCE. The parties
acknowledge and agree that this Lease Agreement is under, subject, and subordinate to
any and all mortgages and security interests that presently encumber the property or that
in the future may encumber the property of which the leased premises is a part without
the necessity of any further instrument or act on the part of the Tenant to effectuate such
subordination. Tenant agrees, at the election of Landlord, to attorn to any holder of any
mortgage to which this lease is subordinate. Tenant shall execute and deliver upon
demand such further .instrument or instruments confirming such subordination of this
Lease to all underlying leases and to the lien of any such mortgage and/or other
encumbrance as shall :be desired by any such mortgage or proposed mortgage or by any
other person. Tenant ~fereby appoints Landlord the attorney-in-fact of Tenant irrevocably
to execute and delivery any such instrument or instruments for and in the name of Tenant.
If Landlord shall mortgage the real property of which the leased premises is a part,
Landlord shall obtain from the lienholder aNon-Disturbance Agreement for the benefit of
Tenant. Any Non-Disturbance Agreement is subject to the requirement that Tenant shall
not have been in default under the terms, covenants and conditions of this lease or any
time during the lease term.
12. COMPLIANCE WITH LAWS AND INDEMNIFICATION. Tenant agrees to strictly
comply with all pertinent laws, ordinances, statutes and regulations whatsoever, of any
governmental body or subdivision, incident to its occupancy of the Premises and its use
thereof. Tenant further covenants and agrees to indemnify and hold Landlord harmless
from any loss, cost or expense whatsoever, directly or indirectly resulting or occasioned
to, or imposed. upon, Landlord (1) by injury to or destruction of life or property resulting
from the use and occupancy by Tenant (including, but not limited to any such injury or
destruction caused, in whole or in part, by its agents, servants, employees, independent
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' ~ . sFic~diblrsrlbrandy\calabrese.lease
June 9, 2006
contractors, invitees o~ licensees), or (2) by damage to or destruction of the Building
structure, or any part thereof, or of any abutting real property caused by or attributable to
the negligent act or arts or omission or omissions to act of Tenant (including but .not
limited to, any such damage or destruction caused, in whole or in part, by its agents,
servants, employees, contractors, invitees, or~licensees) or caused by or attributable to the
Tenant's failure to perform its obligations under this lease. As used in this Paragraph 12
the term "Landlord" `'.shall be deemed to include any agent, employee or servant of
Landlord.
13. QUIET ENJOYMENT UNTENANTABILITY. Landlord hereby warrants that Tenant
upon payment of the rent and performing the provisions of this Lease on its part- to be
paid and performed shall have .peaceful and quiet possession of the Premises against all
parties claiming adversely thereto by or under Landlord. If, during the term of this Lease,
the Building or building equipment or Premises be destroyed by fire or any other cause
whatsoever, or .partially destroyed so as to render the Premises wholly unfit for
occupancy, and Landlord shall conclude that they cannot be repaired for occupancy
within 120 days from the happening of the loss of damage, then this Lease shall, at
Landlord's option, i~rnediately terminate in which case Tenant shall surrender the
Premises and all intexest therein and Tenant shall pay rent only to the time of such
surrender. In case of total or partial damage or destruction to the Premises, Landlord may
re-enter and repossess. the same or any part thereof for the purpose of removing or
repairing the loss or damage and shall proceed with reasonable dispatch to the repair of
same unless, under the foregoing clause of this paragraph, the Lease shall have
terminated. The rent wring the period of such repairs shall be wholly abated if all of the
Premises have been thus repossessed by Landlord for the purpose of repair for the period
that Tenant has been thus dispossessed; and if only a portion of the Premises are thus
repossessed, the rent shall be abated for the period of such dispossession ratably, based on
the portion of the Premises thus repossessed.
Should the Building or Premises be destroyed or damaged by fire or other cause, due to
the fault or neglect of'Tenant or its agents, servants, employees, independent contractors,
invitees, or licenses, the Landlord may repair such damage without prejudice to any rights
of subrogation of Landlord's insurer and there shall be no apportionment or abatement of
rent.
14. SIGNS. Tenant shall ,not erect or install any sign or other type display whatsoever, either
upon the exterior of t~.~e Building, upon or in any window, or door therein located, or the
Premises, without theprior express written consent of Landlord. Any free-standing sign
to be situate on the Premises shall be approved in writing by Landlord and comply with
all applicable Township signage requirements. It is the responsibility of the Tenant to
investigate all appropriate governmental authorities governing sign size and location and
to optain approval.. ;
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.sheldlbtrsr\brandylcalabrese.tease
June 9, 2006
15. TENANT'S CARE OF PREMISES. Tenant shall not make alterations in, or additions
or improvements to the Premises without the prior express written consent of Landlord.
Landlord's refusal to grant such consent shall be inclusive. In addition:
A. .Tenant shall commit no waste with respect to the Premises and shall take good
care of and keep in good repair the Premises and .fixtures therein and, at the
expiration or e~.rlier termination or cancellation of this Lease, shall surrender the
Premises and Ffxtures therein in the same condition as when initially received by
Tenant, subject only to reasonable wear-and tear resulting from normal use, and
shall surrender:all keys for the Premises to Landlord at the place then fixed for-the
payment of rent and shall remove all Tenant's property before surrendering the
Premises. All '~njuries to the Building or fixtures caused by moving the property
of Tenant in Qr out of the Premises, and any and all breakage or other injury
whatsoever done by Tenant, its agents, servants, employees, independent
contractors, licenses, invitees, or visitors, as well as any damage done by water,
steam, electricity, fire or other substance due to the neglect of the aforesaid
parties, may be repaired by Landlord, at the expense of Tenant, and shall become
due and payable upon delivery of a statement of such charges by Landlord to
Tenant or mailing the same postage prepaid, to Tenant at his last known address.
B. All alterations, additions or improvements upon or affixed to or in the Premises
(including, but not limited to carpets, drapes and anything bolted, nailed, plumbed
or otherwise secured in a manner customarily deemed to be permanent) shall be
deemed to be :. a fixture inuring to the Building, and. shall not be subject to
attachment of a mechanic's, materialman's or similar lien, and shall in any event
be and become. the property of Landlord and remain upon the Premises and be
surrendered at ~he end of this Lease, Business machines and such equipment are
excluded from plus section.
~:
C. Tenant shall ndt use or permit to be brought into the Premises or the Building any
flammable or explosive material or other articles deemed hazardous to persons or
property. Teri~ant shall not occupy the Premises in any manner which shall
invalidate or tie in conflict with fire or other insurance policies covering the
Building or its operation or the Premises, or increase the rate of fire or other
insurance in the Building or its operation or the Premises, over that in effect prior
to this Lease. If, by any reason of failure of Tenant to comply with provisions of
this paragraph, any insurance premium shall be at the beginning of this Lease or
any time thereafter be higher than it otherwise would be, the Tenant shall
reimburse the Landlord as additional rent hereunder for that part of all insurance
premiums thereafter paid by Landlord, which shall have been charged because of
such failure by Tenant and shall make such reimbursement upon the first day of
the month following such payment by Landlord.
8
' ~ • stic\dlb~rsrlbrandylcalabrese.lease
June S, 2006-
;,
D. Tenant shall nol permit any obnoxious odors, chemicals or other substances to be
produced, manufactured or stored in the demised premises. A breach of the
provision shall be deemed a material breach of this Lease entitling the Landlord to
exercise. any remedies available to it hereunder or at law.
:,:
16. WAIVER OF CLAIMS. To the extent permitted by law, the Landlord shall not be
liable for and the Tenant releases the Landlord and Landlord's agents, contractors and
servants from, and waives all claims for damage to person or property sustained by the
Tenant or any occupant of the Building or Premises resulting from the use and condition
of the Premises or any;part or any equipment or appurtenance becoming out of repair, or
resulting from any accident in or about the Premises, or resulting directly or indirectly
from any act or neglect of any tenant or occupant of the Premises or of any other person,
including Landlord, its agents or employees. This section shall apply especially, but not
exclusively, to the flooding of basement or other subsurface areas, and to damage caused
by refrigerators, sprinkling devices, air-conditioning apparatus, water, snow, frost, steam,
excessive heat or colds falling plaster, broken glass, sewage, gas, odors or noise, or the
bursting or leaking of'~pipes or plumbing fixtures, and shall apply equally whether any
such damage results from the act or neglect of the Landlord or of any other persons, and
whether such damage be caused or result from any thing or circumstance above
mentioned or referred ~~o, or any other thing or circumstance whether of a like nature or of
a wholly different nature. If any such damage, whether to the Premises or the Building,
result from any act or ;neglect of the Tenant, the Landlord may, at the Landlord's option,
repair such damage and the Tenant shall, upon demand by the Landlord, reimburse the
Landlord forthwith for the total cost of such repairs. Tenant covenants to indemnify and
save Landlord harmless against and from any and, all loss, cost, damage, claim, liability or
expense including, but not limited to,.reasonable attorney's fees, arising out of or resulting
from any injury or claim of injury of any nature of sort whatsoever to any person or
property suffered or received in or about the Premises at any time during the term hereof,
or arising out of any failure of Tenant in any respect to comply with any of the
requirements or provisions of this Lease. Tenant hereby releases Landlord and Landlord's
officers, agents, employees and servants, from any and all claims or demands for
damages, loss, expense or injury to the Premises, or to the furnishings and fixtures and
equipment, or inventory or other property of Tenant in, about or upon the Premises, as the
case may be, which n~`ay be caused by or result from perils, events or happenings which
are the subject of insurance carried by the Tenant and in force at the time of any such loss.
All property of any Find belonging to the Tenant or any other person that is in the
Building or the Premises shall be there at the sole risk of the Tenant or other person only,
and the Landlord shall not be liable for damage thereto or theft or misappropriation
thereof. Landlord or its agents, servants or employees, shall not be liable .for any injury,
loss or damage to any;persons or property on or about the premises from any other cause
of whatsoever nature;: unless the same is directly caused by gross negligence of the
Landlord and there i~ no fault or negligence of the Tenant, and Tenant shall save
Landlord. harmless and indemnified against such injury, loss or damage, or liability or
claim thereof arising from any act, omission or negligence of Tenant.
9
• sheldlblrsrlbrandylcalabrese.lease
June 9, 2008
17. TENANT'S INSURANCE. Tenant shall, during the entire term hereof, at its sole cost
and expense, obtain, maintain -and keep in full force and effect the following policies of
insurance:
~,:.
A. All risk insurance including fire insurance (with extended coverage and vandalism.
and malicious z~ischief coverage), water damage, sprinkler leakage and plate glass
insurance, on t~e standard forms, insuring all of Tenant's property. in the Premises,
and all betterments, additions, repairs, improvements and alterations made to the
Premises by Tenant, and all plate glass windows, plate glass doors and other plate
glass in the Premises, in an amount equal to 100% of the replacement cost thereof.
}
B. A combination of comprehensive general liability insurance and excess (umbrella)
coverage to include personal injury, bodily injury, broad-form property damage,
operation's hazard, independent contractor's coverage,. blanket contractual liability
(including insuring contractual liability under the indemnifications of Landlord by
Tenant set forth in this Lease), premises operations liability and in limits approved
by Landlord in writing which approval shall not be unreasonably withheld. Said
policies shall name Landlord as an additional insured.
C. Worker's compensation and employer's liability insurance in a form and amount
required by law.
D. Any, other form or forms of insurance standard to the industry as Landlord may
reasonably require from time to time in form, in amounts and for insurance risks
against which a~ prudent Tenant would protect itself.
1,
All policies shill be taken out with insurers that are reasonably acceptable to the
Landlord and which are. licensed to do business. in the Commonwealth of
Pennsylvania arld certificates showing that such coverages to be in effect shall be
furnished to Landlord upon request. In addition to Tenant, all policies shall also
name Landlord and any other person, -firm or corporation designated by Landlord
and in privity ~ with it, as an additional insured. Each insurer shall agree, by
endorsement upon the certificate issued by it or by independent instrument issued
to Landlord, that it will give ,Landlord thirty (30) days' written notice before the
policy in question shall be altered or canceled. Tenant shall be entitled to provide
the insurance coverage required hereby through the use of blanket insurance
policies covering the Premises. Tenant agrees that certificates of insurance shall
be delivered to Landlord as soon as practicable after the placing of the required
insurance and that renewal certificate shall be delivered not less than ten (10) days
prior to the expiration of such policies.
E. Insurance on Buildings and Improvements. As additional rent, in each calendar
year during the term, Tenant shall pay to Landlord, Landlord's total cost of
10
>.
she\dlb\rsrlbrandylcalabrese.lease
June 9, 2006
€:.
insuring the Premises and improvements thereon, including public liability,
(including "um'brella coverage"), workmen's compensation and hazard insurance
(including rental value insurance, fire and extended coverage [with vandalism and
malicious mischief endorsement]; boiler and machinery, and all-risk policies).
Tenant's insurance payment shall be paid in monthly installments on the first day
of each calendar month during the term in advance, in an amount reasonably
estimated by Landlord. Within 90 days after the end of each calendar year during
the term, Landlord shall furnish Tenant with a statement summarizing the actual
insurance cost for such calendar year.
F. Business Liability Insurance. Tenant shall keep in force with insurers that are
reasonably acceptable to the Landlord and which are licensed to do business in the
Commonwealth of Pennsylvania, a policy to cover business liability, including
premises operations liability and business interruption liability, in which the limits
of coverage shall not be less than $1,000;000.00, single limit. In addition to
Tenant, the po'iicy shall name Landlord as an additional insured. Tenant shall
continually provide Landlord with a certificate of such insurance, which shall
provide that the insurer will give the Landlord at least 30 days' written notice prior
to any cancellai:ion of, lapse or material change in the insurance.
G. Indemnification. Tenant will, subject to the provisions of paragraph H below,
indemnify, save harmless and defend Landlord and its officers, agents and
servants, from and against any and all claims, actions, liability and expense in
connection with loss of life, bodily injury and/or damage to property arising from
or out of any occurrence in, upon or at the Premises, or the occupancy or use by
Tenant, its agents, employees, servants, subtenants, licensees or concessionaires,
of the Premises or any part thereof, or outside the Premises which is occasioned
wholly or in part by any willful or negligent act or omission of Tenant, its agents,
employees, servants, subtenants, licensees or concessionaires, unless the same be
caused by the willful or negligent act or omission of Landlord, its agents,
employees or servants.
:;.
H. Waiver of Sub~,o ation. Anything in this Lease to the contrary notwithstanding, it
is agreed thateach party (the "Releasing Party") hereby releases the other (the
"Released Party") from any liability which the Released Party would, but for this
paragraph H, have had to the Releasing Parry during the term of this Lease,
resulting from the occurrence of any accident or occurrence or casualty (i) which
is or would b`e covered by an "all-risk" policy (irrespective of whether .such
coverage is being carried by the Releasing Party), or (ii) covered by any other
casualty or property damage insurance being carried by the Releasing Party at the
time of such occurrence, which accident, occurrence or casualty may have resulted
in whole or in part from any act or neglect of the Released Party, its officers,
agents or employees; PROVIDED, HOWEVER, the release hereinabove set forth
11
• sFic\dlb\rsr\brandy\calab~ese.lease
June 9, 2006
shall become inoperative and null and void if the Releasing, Party wishes to place
the appropriate;insurance with an insurance company which (a) takes the position
that the existence of such release vitiates or would adversely affect any policy so
insuring the Releasing Party in a substantial manner and notice thereof is given to
the Released P'` , or (b) requires the payment of a higher premium by reason of
the existence o :such release, unless in the latter case the Released Party within 10
days after notice thereof from the Releasing Party pays such increase in premium.
18. EMINENT DOMAIN. If the whole of the Premises shall be taken or condemned, or
r
purchased in lieu thereof, by any government authority for any public or quasi-public use
or purpose, then, in that event, the term of this Lease shall cease and terminate from the
time when the possession shall be required for such.use or purpose. The rent shall in such
case be apportioned to the date of such taking or purchase, as the case may be. In the
event of a partial taking only of the Premises, the Landlord shall so notify the Tenant in
writing and the Tenant shall have the option to cancel this Lease, giving the Landlord
written notice within twenty (20) days after receipt of such notice from the Landlord;
provided the balance of the Premises remaining cannot be suitably used by the Tenant for
its purposes heretofore stated. If the Tenant is entitled to exercise said option to cancel
and does so, then such canceling shall be effective and the rent shall in such case be
apportioned to the date of such taking or purchase, as the case may be. In the event the
Tenant is not entitled do cancel the Lease or, if it is entitled to do so, it does not exercise
its option, said Tenant`~vill be responsible for the rent as heretofore set forth, apportioned
to the date of such tak~rig or purchase; i.e. after the taking, or purchase in lieu thereof, the
rent herein reserved shall be reduced and the Tenant shall be ~ required to pay that
.proportion of rent herein reserved as the net rentable square feet contained in the
remaining leased space bears to the net rentable square feet contained in the leased space
before such taking or purchase.
The Landlord and the,~Tenant hereby agree that any award of proceeds resulting from a
condemnation or salein lieu thereof of the whole or part of the Premises shall belong
solely to the Landlord and the Tenant hereby waives any right to make any claim
therefore as the result of this Lease.
19. ACCESS TO PREMISES Landlord or Landlord's agents shall have the right to enter the
Premises at all reasonable times to examine the same and to show them to prospective
purchasers, mortgagees, lessees or tenants of the Landlord, or to public officials lawfully
having an interest therein, or to make such repairs, alterations, improvements or additions
as the Landlord may deem necessary or desirable. Landlord shall not be liable to Tenant
for any inconvenience, interferences, annoyance, loss or damage resulting from work
done in or upon the Premises or any portion of the Building or adjacent grounds.
Landlord will make- tall attempts to provide 24 hour advance notice of any entry,
emergencies excepted;
i+:
~.
t'
r
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' •she\dibirsrlbrandy\calabrese.lease
June 9, 2006 '~
20. NOTICES. Any notice which the Landlord may desire or be required to give the Tenant
shall be deemed sufficiently given or rendered, if in writing, delivered to the Tenant by
certified or registered mail, return receipt requested, addressed to the Tenant, at the
address first above written or at .the Premises, as appropriate, and any notice which
Tenant may desire or be required to give the Landlord shall be deemed sufficiently given
or rendered, if in writing, delivered to Landlord by certified or registered mail, return
receipt requested, addressed to its business office at: c/o RSR Realtors, 3 Lemoyne
Drive, Suite 100, Lemoyne, ~PA 17043, or such other places as Tenant or Landlord may
from time to time designate in writing. Any notice given hereunder shall be deemed
delivered when the return receipt is signed or refusal to accept the notice is noted thereon.
21. TENANT'S DEFAUTIT. If the Annual Minimum Rent, additional rent, or any other
charge payable by Tenant under this Lease shall be unpaid on the date payment is
required by the terms l~~ereof and shall remain so for a period of 5 days, or if Tenant fails
to perform any of the pother terms, conditions, covenants and obligations of this Lease to
be observed and performed by Tenant for more-than 15 days after Landlord gives Tenant
notice of such default ~it being agreed that a default, other than the failure to pay money,
which is of such a character that rectification thereof reasonably requires longer than said
15 day period and completes the same with due diligence), or if Tenant shall vacate or
abandon the Leased Premises or suffer this Lease to be taken under any writ of execution,
attachment or other process of law, or if this Lease shall by opeiration of law devolve
upon or pass to any other party, or if an "Act of Bankruptcy" (as defined in Section 18.02)
shall occur, or if Landlord shall have notified Tenant of Tenant's default three (3) or more
times in any twelve calendar month .period, then, in any of such events, Landlord shall
have, besides its other rights or remedies, the following immediate rights:
A. At its option, to terminate this Lease and the term hereby created without any right
on the part of Tenant to waive the forfeiture by payment of any sum due or by
other performance of any condition, term or covenant broken, whereupon
Landlord shall be entitled to recover, in addition to any and all sums and damages
for violation o~ Tenant's .obligations hereunder in existence at the time of such
termination, damages for Tenant's. default in an amount equal to the amount of the
rent reserved for the balance of the term of this Lease, as well as all other charges,
payments, costs and expenses herein agreed to be paid by Tenant, all of which
amount shall be immediately due and payable from Tenant to Landlord.
B. At its option, ~y notice to Tenant, to re-enter and take possession. of the Leased
Premises with~9ut terminating this Lease. No re-entry or taking possession of the.
Leased Premiss by Landlord pursuant to this clause B. shall be construed as an
election on its part to terminate this Lease unless a notice of such intention is
given to Tenant (all other demands and notices of forfeiture or other similar
notices being hereby expressly waived by Tenant).
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-sheldlblrsrlbrandylcalabrese.lease
June 9, 2006
C. At its option, tQ require that upon (i) any termination of this Lease, whether by
lapse of time oir by the exercise of any option by Landlord to terminate the same
or in any other manner whatsoever, or (ii) any termination of Tenant's right to
possession wit~.out termination of this Lease, Tenant shall immediately surrender
possession of tine Leased Premises to Landlord and imrriediately vacate the same,
and remove all ;effects therefrom, except such as may not be removed under other
provisions of this Lease.
D. At its option, ~o make such alterations and repairs as Landlord shall determine
maybe reasonably necessary to relet the Leased Premises, and to relet the same or
any part thereof for such term or terms (which may be for a term extending
beyond the term of this Lease} and upon such terms and conditions as Landlord in
its sole discretion may deem advisable. Upon each reletting, all rentals received
by Landlord from such reletting shall be applied as follows: first, to the payment
of any indebtedness other than rent or other charges due under this Lease from
Tenant to Landlord; second to the payment of any reasonable costs and expenses
of such reletting, including brokerage fees and attorneys' fees and costs of such
alterations and repairs, each of which fees and costs shall be reasonable in
amount; and third, to the payment of rent and other charges due and unpaid
hereunder. In rio event shall Tenant be entitled to receive any surplus of any sums
received, by Landlord on a reletting in excess of the rental and other charges
payable hereunder. If such rentals and other charges received from such reletting
during any month are less than those to be paid during that month by Tenant
hereunder, Tenant shall pay any such deficiency to Landlord (notwithstanding the
fact that Landlord may have received rental in excess of the rental and other
charges payable hereunder in previous or subsequent months), such deficiency to
be calculated Wand payable monthly. Notwithstanding any reletting without
termination, Landlord may at any time thereafter elect to terminate this Lease for
such previous breach in the manner provided in this Section.
E. CONFESSION OF JUDGMENT: If Tenant shall default in the payment of
the rent herein reserved or in the payment of any other sums due hereunder
by Tenant, Tenant hereby authorizes and empowers any Prothonotary or
attorney of any court of record to appear for Tenant in any and all actions
which may be brought for said rent and/or said other sums; and/or to sign
for Teaant an agreement for entering in any competent court an amicable
action or actions for the recovery of said rental and/or other sums; and in
said suits or in said amicable action or actions to confess judgment against
Tenant for al,~ or any part of said rental and/or said other sums, including
but not limited to the amounts due from Tenant to Landlord under
subparagrap>~s A, B, C and/or D of this paragraph; and for interest and
costs, together with any attorneys' commission for collection of ten percent
(10%). Such authority shall not be exhausted by one exercise thereof, but
judgment mad be confessed as aforesaid from time to time as often as any of
14
' •she\dib'lrsrlbrandylcalabrese.lease
June 9, 2006
said rental and/or other sums shall fall due or be in arrears, and such powers
may be exercised as well after the expiration of the initial term of this Lease
and/or during. any extended or ,renewal term of this Lease and/or after the
expiration of any extended or renewal term of ~hi~ I:eas~. ,, ~
.r f/
j, I (Tenant)
. tf
F. When this Lease and the term of any extension or renewal thereof shall have
been terminated on account of any default by Tenant hereunder, and also
when the terin;hereby created or any extension or renewal thereof shall have
expired, it shad be lawful for any attorney of any court of record to appear
as attorney. fotr Tenant as well as for all persons claiming by, through or
under Tenants and to sign an agreement for entering in any competent court
an amicable action in ejectment against Tenant and all persons claiming by,
through or under Tenant and therein confess judgment for the recovery by
Landlord of possession of the Premises, for which this Lease shall be his
sufficient warrant; thereupon, if Landlord so desires, an appropriate writ of
possession may issue forthwith, without any -prior writ or proceeding
whatsoever, and provided that if for any reason after. such action shall have
been commenced it shall be determined that possession of the Premises
remain in or be restored to Tenant, Landlord shall have the right for the
same default and upon any subsequent default or defaults, or upon the
termination of this Lease or. Tenant's right of possession as hereinbefore set
forth, to bring one or more further amicable action or actions as
hereinbefore set forth to recover possession of the Premises and confess
judgment -for,. the recovery of possession of the PXemise~ as hereinbefore
provided.
(Tenant)
~F
G. In any amicable action of ejectment and/or for rent and/or other sums
brought herein, Landlord shall first cause to be filed in such action an
affidavit mad. by Landlord or someone acting for Landlord, setting forth the
facts necessat~y to authorize the entry of judgment, of which facts such
affidavit shalf: be prima facie evidence, and if a true copy of this Lease (and
of the truth df the copy such affidavit shall be sufficient evidence) shall be
filed in such shit, action or actions, it shall not be necessary to file the original
as a warrant of attorney, any rule or Court, custom or practice to the
contrary notwithstanding. ~"~]
(Tenant)
H. At its option, to collect from Tenant any other loss or damage which Landlord
may sustain by reason of any breach and any diminished value of the Leased
Premises resulting from said breach.
~, 15
is
4'
%.
. shcldlti\rsrlbrandy\calabrese.lease
June 9, 200fi
I. Landlord's Right to Cure Defaults. If Tenant fails to perform any agreement or
obligation on i;~s part to be performed under this Lease, Landlord shall have the
right (i) if no ~nergency exists, to perform the same after giving 15 days' notice.
to Tenant; and`(iij in any emergency situation; to perform the same immediately
without notice; or delay. .For the purpose of rectifying Tenant's defaults as
aforesaid, Lan~lord shall have the right to enter the Leased Premises.. Tenant
shall, on dem~:nd, reimburse Landlord for the costs and expenses incurred by
Landlord in rectifying Tenant's defaults as aforesaid, including reasonable
attorneys' fees. Landlord shall not be liable or in any way responsible for any
loss, inconvenience, annoyance, or damage resulting to Tenant or anyone holding
under Tenant for any action taken by Landlord pursuant to this Section.
Tenant hereby waives and releases all errors and defects which may intervene in the
Landlord's exercise ~ of any of its remedies hereunder, including the summary
remedies; Tenant further waives the right of inquisition oa any real estate levied on
and Tenant voluntarily consents to an immediate execution upon any judgment
obtained by Landlord; Tenant also waives and releases all relief from any and all
appraisement, stay oir exemption law of any state now in force or hereafter enacted;
Tenant waives any a~otice to quit required by any law win force f he ter;
enacted. ~ ,
(Tenant)
h _
~~
Nothing in this Section shall be deemed to limit Landlord's rights and remedies in the
event of a default by'Tenant, and the Landlord's rights and remedies set forth in this
Lease shall be in addition to those available to Landlord at law or in equity.
22. BANKRUPTCY. If at any time prior to or after the commencement of the term of this
Lease there shall be filed by Tenant or Guarantor, in any court pursuant to any statute
either of the United States or of any State, a petition in banl~-uptcy (including, without
limitation, a petition for liquidation, reorganization or for- adjustment of debts of an
individual with regular income), or if any case, proceeding or other action shall be
commenced seeking to have an order for relief entered against Tenant or Guarantor as a
debtor in bankruptcy proceedings or to adjudicate Tenant or Guarantor a bankrupt or
insolvent, or seeking reorganization, arrangement, adjustment, liquidation, dissolution or
composition of it or' its debts under any law relating to bankruptcy, insolvency,
reorganization or relief of debtors, or seeking appointment of a receiver, trustee,
custodian or other similar official for it or for all or any substantial part of its property,
and such case, proceeding or other action results in the entry of an order for relief or is
not dismissed within X30 days of the filing thereof, or if Tenant or Guarantor becomes
insolvent or is generally not paying or admits in writing its inability to pay its debts as
they mature, or makes an assignment for the benefit of creditors or petitions for or enters
into an arrangement ,with its creditors or a custodian is appointed or takes possession of
Tenant's or Guarantor's property (whether or not a judicial proceeding is instituted in
16
' . snc\dib~rsr\brandylcalabrese.lease
June 9, 2006
connection with such arrangement or in connection with the appointment of such
custodian), or if Tenant or Guarantor shall take any action to authorize or in
contemplation of any of the events set forth above (each of the foregoing events to be
hereinafter referred to as an "Act of Bankruptcy"), then, in addition to Landlord's other
rights and remedies under this Lease and applicable Iaw, this Lease shall, at Landlord's
option (and. if permitted by law), be terminated, in which event neither Tenant nor
Guarantor, nor any person claiming through or under Tenant or Guarantor or by virtue of
any statute or of an order of any court, shall be entitled to possession of the Premises, and
;.:
Landlord, in addition to the other rights and remedies given by this Lease, or by virtue of
any statute or rule of iw, may retain as liquidated damages any rent, Security Deposit or
moneys received by ~andlorcl from Tenant or others in behalf of Tenant. All rent,
additional rent and other charges payable by Tenant under this Lease shall constitute rent
for the purpose of app~yirig the provisions of Section 502(b)(7) of the Federal Banl~uptcy
Code.
7
In the event an act of bankruptcy shall occur and this Lease is not terminated pursuant to
the provisions of Paragraph A, the parties agree that:
A. If there shall be a default in the payment of Annual Minimum Rent or any
additional rent, or a default in the observance or performance of any other
provision of this Lease binding on Tenant, Landlord shall be entitled to
immediately discontinue furnishing any utilities and other services it has been
providing to the Premises, until such time as such defaults have been fully cured,
it being agreed that the foregoing action by Landlord shall in no way cause or
result in any abatement of Annual Minimum Rent or any other charge payable by
Tenant during the continuance of the teen of this Lease.
~.
',, .
B. If the Lease is i^issumed by a trustee in bankruptcy, and assigned by the trustee to a
third party, they such party shall (a} execute and deliver to Landlord an agreement
in recordable firm whereby such party confirms that it has assumed and agrees
with Landlord to discharge all obligations binding on Tenant under this Lease, (b)
represent and warrant in writing to Landlord that such party has a net worth and
operating experience at least comparable to that .possessed by Tenant named
herein and Guarantor as of the execution of this Lease, (c) deposit with Landlord a
Security Deposit and advance rent equal to that initially deposited by Tenant
named herein, 'and (d) grant Landlord, to secure the performance of such party's
obligations under this Lease, a security interest in such party's merchandise,
inventory, personal property, fixtures, furnishings, and all accounts receivable
(and in the proceeds of all of the foregoing) with respect to its operations in the
Leased Premises, and in connection therewith, such party shall execute such
security agreements, financing statements and other documents (the forms of
which are to be designated by Landlord) as are necessary to perfect such lien.
17
t
K
x
' , shcldlb\rsr\brandy\calabrese.lease
June 9, 2006
C.
,''
`;~.
Any person or :yntity to which this Lease is assigned pursuant to the provisions of
the Bankruptcy Code, 11 U.S.C. Section 101, et se~cr (the "Bankruptcy Code")
shall be deeme3 without further act or deed to have assumed all of the obligations
arising under tl?is Lease on and after the date of such assignment. If this Lease is
assigned to any person or .entity pursuant to the provisions of the Bankruptcy
Code, any and all monies or other considerations payable or otherwise to be
delivered in connection with such assignment shall be paid or delivered to
Bankrupt, shall be and remain the exclusive property of Bankrupt and shall not
constitute property of Tenant or of the estate of Tenant within the meaning of the
Bankruptcy Code. Any and all monies or other considerations constituting
Landlord's property under the preceding sentence not paid or delivered to
Landlord shall be held in trust for the benefit of Landlord and be promptly paid or
delivered to Landlord.
23. CONDITION OF PREMISES. It is agreed that, by occupying the Premises, Tenant
acl~owledges that it; has had full opportunity to examine the Building, including
Premises, and is fully informed, independently of Landlord, as to the character,
construction and struc'ure of the Building and land within the Premises. It is agreed that
by occupying the Premises the Tenant formally accepts the same and acknowledges that
Landlord has complied with all requirements imposed upon it under the terms of this
Lease.
.,
24. HAZARDOUS WAS`7CE.
A. Tenant hereby` covenants, represents and warrants that it shall not generate,
transport, handle, store or otherwise encounter in, on or about the Premises, any
hazardous waste or substance (for purposes of this Section herein called
"hazardous waste") as defined by the applicable federal, state or local
environmental or occupational standards, including but not limited to material
defined as such in, or for purposes of, the Comprehensive Environmental
Response, Compensation and. Liability Act of 1980 ("CERCLA"), as amended by
the Superfund Hazardous Materials Transportation Act (49 U.S.C. § 1802 et seq.),
the Resource Conservation and Recovery Act ("RCRA") (42 U.S.C. §1802, et
sew.), the Federal Water Pollution Control Act (33 U.S:C. §1251, et se .), the Safe
Drinking Water Act (42 U.S:C. §300(f), et seg.), the Toxic Substance Control Act
(15 U.S.C. §2601, et sew.), the Clean Air Act (42 U.S.C §7401, et sue.), or any
other federal, ;state or local statute, ordinance, code, rule, regulation, order or
decree regulating, relating to or imposing liability or standards of conduct
concerning arxy hazardous, toxic or dangerous waste, substance, element or
material as now or at any time hereafter in effect or amended (for purposes of this
Section herein collectively called the. "Laws"). Tenant further covenants,
represents and~;~warrants that there will be no underground storage tanks in, on,
under, within or about the Premises.
18
' ~ ~ shcldiblrsrlbrandylcalabrese.lease
June 9, 2006
B. Tenant shall not use, store or permit to be stored on the Leased Premises any
asbestos in any form, urea formaldehyde foam insulation, transformers or other
equipment which contains ,dielectric fluid or other fluids containing levels of
polychlorinated biphenyls in excess of fifty (50) parts per million:
C. Tenant covenants, represents and warrants that it will indemnify .and hold
Landlord harmless. from and against any and all liability, actions, claims, losses,
damages and .e~Cpenses arising out of, or in any way relating to, a breach of the
representationsy warranties, covenants and agreements set forth in this Section,
including: (a) claims of third parties (including governmental agencies) for
damages, including personal injury or property damages, penalties, response costs,
injunctive or other relief; (b) costs or removal and restoration, including fees of
attorneys and experts, costs of reporting to any governmental agency the existence
of hazardous substances, hazardous waste, pollutants and/or contaminants and
costs of preparing or causing to be prepared any and all studies, tests, analyses or
reports in connection with any environmental matter; (c) all expenses or
obligations, including attorneys' fees, incurred at, before and after any trial or
appeal therefrom whether or not taxable as costs, including attorneys' fees, witness
fees, deposition costs and other expenses; (d) all other costs, expenses and
liabilities arising from Tenant's violation of the laws or any other environmental
regulation now in force or hereafter enacted; and (e) Tenant's disposal of medical
waste as set forth in Paragraph A above. The obligations of Tenant as contained
in this Section shall survive the termination of the Lease.
25. LANDLORD'S TITI:E. Tenant recognizes and agrees that Landlord's title is and always
will be paramount to t~e title of Tenant and ,under no circumstances shall Tenant do or be
empowered to do any pct which can, shall or may encumber Landlord's title or subject the
Premises or Building ~r any part of either to any lien or encumbrance.
26. HOLDING OVER. ~f for any reason Tenant retains possession of the Premises or any
part thereof after the termination of the term of .this Lease or any extension of the teen,
.unless other written arrangements are made with Landlord, such holding over shall
constitute a tenancy from month-to-month and Tenant shall pay Landlord monthly rental
during the month-to-month tenancy computed at double the rate of rent payable hereunder
for the final month of the last year of the term prior to such holding over.
27. NO ACCORD AND SATISFACTION. No payment by Tenant or receipt by Landlord
of a lesser amount than the monthly rent and other charges, nor shall any endorsement or
statement on any check or on any letter accompanying any check be deemed an accord
and satisfaction.
28. SUCCESSORS AND ASSIGNS. This Agreement shall be binding upon and inure to
the respective partiesherein, their heirs, executors, administrators, devisees, successor
and permitted assigns ro~rhomever. Any reference to Tenant he rein shall, for the purposes
r~
~~
~~ 19
,,
. ~:~
~• sheldlb\rsrlbrandy\calabrese.lease '~
June 9, 2006
;.
•a..
}.
of determining liability for property damage and the like, be deemed to include. Tenant,
his or its agents, officers; employees, servants, partners, independent contractors,
licensees, invitees or visitors whomever.
r
29. RESERVATIONS BY LANDLORD. In addition to other rights conferred by this
Agreement or by law, the Landlord reserves the right, to be exercised in Landlord's sole
discretion, to: (a) take all measures as may be necessary or desirable for .the safety,
protection of the Premises or of the Building; (b) sell or mortgage the Building; (c) repair,
alter, add to, improve, build additional stories on, or build adjacent to said building; (d)
run necessary pipes, conduits and ducts through the Premises; and (e) carry on any work,
repairs, alterations or improvements. in, on, or about the Building or in the vicinity
thereof. Tenant hereby waives any claim to damage or inconvenience causes by such
work. This paragraph shall not be construed to diminish the obligations of Tenant with
respect to repairs or improvements or other obligations of Tenant provided herein, nor
shall it be construed too create or increase any obligation on the part of Landlord with
respect to repairs or improvements.
30. ESTOPPEL CERTIFICATE. At any time, and form time to time, the parties agree
that within ten (10} days following request in writing from the other party, to execute,
acknowledge and deliver to the requesting parry a statement in writing certifying that this
Lease is unmodified acid in full force and effect (or if there have been modifications that
the same is full force ;and effect as modified and stating the modification), the dates to
which the rent and other charges have been paid, and any other financial data relating to
this Lease or the Leased Premises which such party may reasonably request:
31. FORCE MAJEURE. In the event either party hereto shall be delayed or hindered in or
prevented from the performance of any act required under this Lease by reason of strikes,
lockouts, labor troubles, inability to procure materials, failure of power, restrictive
governmental law or regulations, riots, insurrection, war or other reason of a like nature
not the fault of the party delayed in performing work or doing acts required under the
terms of this Lease, then performance of any such act shall be extended for a period
equivalent to the period of such delay. The provisions of this Section shall not (a) operate
to excuse Tenant from prompt payment of Annual Minimum Rent or any other payment
required by the terms Hof this Lease, and (b} be applicable to delays resulting from the
inability of a parry to ~~btain financing or to proceed with its obligations under this Lease
because of a lack of funds.
r
32. ARBITRATION/WAIVER OF JURY TRIAL. Any disagreement between Landlord
and Tenant with respect to the interpretation or application of this Lease, or the obligation
of the parties hereunder, shall be determined by arbitration unless the parties otherwise
mutually agree in writing. Landlord and Tenant shall agree upon one arbitrator, otherwise
there shall be three (33, one named in writing by the Landlord and one named in writing
by the Tenant within ten (10) days after notice of arbitration is served by either upon the
other, and a third arbitrator selected by those two arbitrators within ten (10) days
20
~• she\dlb~rsrlbrandylcalabrese.lease
June 9, 2006
thereafter. No one shall serve as an arbitrator who is in any way financially interested in
this Lease or in the affairs of either party hereto. This agreement to arbitrate shall be
specifically enforceable under the prevailing arbitration laws. The arbitrator or arbitrators
shall have the power to award to either party to the dispute such sums, costs, expenses,
and attorney's fees as ~he arbitrator or arbitrators may deem proper. The award rendered
by the arbitrator or ar~iitrators shall be appealable to a court of competent jurisdiction
~:
within thirty (30) daysof notice of the arbitrators' award. Such appeal shall be prosecuted
without delay and as rabidly as possible. .
33. GUARANTY. At the. -time of executing this Lease, Tenant shall provided to Landlord a
signed Guaranty of Lease including the signature of the spouse, if any, in form and
substance as set forth in Exhibit B hereto. Each Guarantor shall provide Landlord with a~n
r
annual financial statement upon request.
34. BUSINESS INTERRUPTION. Tenant acknowledges that the nature of Tenant's
business involves government contracting work to which . Tenant relies on such
contracting work as a substantial source of Tenant's business income. Said contracting
work requires that certain qualifications. and terms be met by Tenant in order to obtain
and keep said work. In light of this fact, Tenant agrees to provide Landlord written notice
within fifteen {15) days of any substantial decrease in Tenant's government contracting
work or the change or termination of Tenant's qualifications to the extent that said change
or termination will result in loss of said contracting business to Tenant.
35. NON-WAIVER. °Th~ failure of the Landlord to seek redress for violation of, or to insist
upon the strict perforn~~ance of, any covenant or condition of the Lease, shall not prevent a
subsequent act, which':would have originally constituted a violation, from having all the
force and effect of an original violation. The receipt by Landlord of rent with knowledge
of the breach of any covenant of this Lease shall not be deemed a waiver of such breach.
36. SHORT FORM LEASE. Tenant agrees that, upon the written request of Landlord,
Tenant will, at any time, join in the execution of a Memorandum of Lease in proper form
for recording or filing yin the appropriate office of the County of Cumberland setting forth
the existence and term of this Lease; and Tenant shall take such action as may be
necessary to permit such recording or filing.
37. MISCELLANEOUS PROVISIONS. No act or thing done or omitted to be done by
Landlord or Landlord's agents during the term of the Lease, which is necessary to enforce
the terms of this Lease shall constitute an eviction by Landlord nor shall it be deemed an
acceptance or surrender of said Premises, and no agreement to accept such surrender shall
be valid unless in writing signed by Landlord. No employee of Landlord or Landlord's
agent shall have any power. to accept the keys of said Premises prior to the termination of
the Lease. The delivery of keys to any employee of Landlord or Landlord's agent shall
not operate as a termination of the Lease or a surrender of the Premises.
E.
i
1
" 21
i
~~
' ~- sheldlb\rsrlbrandy\calabrese.lease ~~
June 9, 2006
Tenant represents and.: warrants to Landlord that Tenant has not incurred and will not
incur any liability for brokerage fees, finder's fees, agents commissions or similar
compensation to third parties in connection with this lease transaction. In the event
Tenant has incurred any such fees, commissions or compensation, said fees, commissions
and compensations incurred shall be charges solely against Tenant. Tenant agrees to
indemnify Landlord against and hold Landlord harmless from any and all liabilities
arising from any claims for such fee; commissions or compensation, including, without
limitations the cost of counsel fees in connection therewith.
The words "Landlord" and "Tenant", wherever used in this Lease, shall be construed to
mean Landlords and Tenants in all cases where there is more than one landlord or tenant,
and the necessary grammatical changes required to make the provisions hereof apply
either to corporations ~.or individuals, men or women, shall in all cases be assumed as
though in each case fully expressed.
The invalidity or uner~forceability of any provision hereof shall not affect or impair any
other provision. Where Tenant hereunder- consists of more than one party, the obligations
of each such parry will'be joint and several hereunder.
Provisions inserted herein or affixed hereto shall not be valid unless appearing in the
duplicate original hereof held by the Landlord. In the event of variation or discrepancy,
the Landlord's duplicate shall control.
The headings of the several articles, paragraphs and sections contained herein are for
convenience .only and do not define, limit or construe 'the contents of -such articles,
paragraphs and sections. All negotiations, considerations, representations and
understandings between the parties are incorporated herein and are superseded hereby,
and the provisions hereof may be modified or altered only by agreement in writing
between the parties. There are no terms, obligations, covenants, statements,
representations, warranties or conditions relating to the subject matters hereof other than
those specifically contained herein. This Lease may not be amended or modified by any
act or conduct of the parties or by oral agreements unless reduced and agreed to in writing
signed by both Landlord and Tenant. No waiver of any of the terms of this Lease by
Landlord shall be binding on Landlord unless reduced to writing and signed by Landlord.
Nothing contained in this Lease shall be construed to be or to create a partnership or j oint
,,
venture between the parties hereto.
This Lease shall be .::governed by and enforced in accordance with the laws of the
Commonwealth of Pennsylvania.
This Lease represents the entire understanding and agreement of the parties and the terms
and provisions of this Lease shall only be modified or amended in writing signed by all
parties hereto.
22
' ~~ sheldib\rsr\brandy\calabrese.{ease
June 9, 2006
IN WITNESS WHEREOF, the parties intending to be legally bound have set their
hands and seals the day and ye~.r first above written.
WITNESS: LANDLORD:
BRANDY INVESTOR, L.P.
y
By:. Bra y Mechanicsburg, LLC
~ Ge erg-Parer
By: --`
William F. othm n, Managing Member
ATTEST:
TENANT:
CALABRESE & SONS, INC.
r~
By:,, , ~ , ~ ~r
' ,President
23
EXHIBIT A
ALL~THAT CERTAIN piece or parcel of land, situate, lying and being in Mechanicsburg
Borough, Cumberland County shown as New Lot 2 on the Calabrese & Sons, Inc.
Preliminary/Final Subdivision/Lot Consolidation Plan Recorded Apri13, 2006 in the Cumberland
County Recorder of Deeds Office in Plan Book 92 Page 44 to wit:
BEGINNING at a point on the southern side of Brandy Lane at a 5/8 inch rebar with cap
thence South 27 degrees 04 minutes 00 seconds East a distance of 376.89 feet to a point thence
North 37 degrees 14 minutes 52 seconds East a distance of 509.19 feet to a point thence North 37
degrees OS minutes Ol seconds East. a distance of 66.58 feet to a point thence South 42 degrees
OS minutes 07 seconds East a distance of 179.93 feet to a point thence South 24 degrees 27
minutes 41 seconds East a distannce of 490.52 feet to a point thence South 65 .degrees 27 minutes
00 seconds West a distance of 593.70 feet to a point thence North 27 degrees 04 minutes 00
seconds West a distance of 744:.09 feet to a point thence North 40 degrees 20 minutes 30 seconds
East a distance of 54.16 feet to a point and place of BEGINNING.
she\dlb\rsrlbrandy\calabrese.lease
June 9, 2006
EXHIBIT B
PERSONAL GUARANTY OF LEASE
In consideration of the making of the above Lease, dated June 9, 2006, by the Tenant with
the Landlord at the request of the undersigned, and in reliance of this Guaranty, the undersigned
hereby unconditionally and irrevocably guarantees the payment of the rent to be paid by the
Tenant and the performance by the Tenant of all the terms, conditions, covenants and agreements
of the Lease, and the undersigned promises to pay all the Landlord's expenses, including
reasonable attorney's fees, incurred by the Landlord in enforcing this Guaranty. The Landlord's
consent to any assignment or assignments, and successive assignments by the Tenant and
Tenant's assigns, of this. Lease, made either with or without notice to the undersigned, or a
changed or different use of the demised premises, or Landlord's forbearance delays, extensions of
time or any other reason whether similar to or different from the foregoing, shall in no way or
manner release the undersigned from liability as Guarantor. Where the undersigned include more
than one parry, the obligation of each such party hereunder will be joint and several. It will not
be necessary for Landlord to proceed first against Tenant in invoking any of Landlord's lease
remedies before proceeding to enforce this Guaranty of Lease.
WITNESS the hand and seal of the undersigned at the date of the above Lease.
GUARANTOR:
o eph Calabrese
25
VERIFICATION
I, William Rothman, hereby verify that I am a Partner in Brandy Investors, LP, and, as
such, I am authorized to verify the averments of the foregoing document are true and correct to
my personal knowledge, information and belief. I understand that false statements herein are
made subject to the penalties of 18 Pa. C.S. §4904, relating to unsworn falsification to authori-
ties.
:f
Date: ~/ ~ By:
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REAGER & ADLER, P.C.
BY:JOHN H. PIETRZAK, ESQUIRE
Attorney I.D. No. 79538
Email: ~ietrzak cr,ReagerAdlerPC.com
BY: THOMAS O. WILLIAMS, ESQUIRE
Attorney I.D. No. 67987
Email: Twilliams~a Rea~erAdlerPC.coni
2331 Market Street
Camp Hill, PA 17011
Telephone: (717) 763-1383
Facsimile: (717) 730-7366
Attorneys for Brandy Investors, LP
BRANDY INVESTORS, LP, IN THE COURT OF COMMON PLEAS,
Plaintiff :CUMBERLAND COUNTY, PENNSYLVANIA
v. :CIVIL ACTION
CALABRESE & SONS, INC. and, NO. O ~'-~ ~ 7 ~ ~ l CJ c
JOSEPH CALABRESE, .
Defendants :CONFESSION OF JUDGMENT
AFFIDAVIT OF NON-MILITARY SERVICE
Commonwealth of Pennsylvania )
ss:
County of Cumberland )
The undersigned, being duly sworn according to law, deposes and says that the
Defendant(s) is/are not in the Military or Naval Service of the United States or Allies, or
otherwise within the provisions of the Soldiers' and Sailors' Civil Relief Act of Congress of
1940, as amended:
Jo H. Pietrzak, squire
Sworn to and subscribed
Before me this ~`~' day of
~ ~ , 2007.
otary Public
COMMONWEALTH OF PENNSYLVANIA
Notarial Seal public
QebOrah L B ~n~~ ~ry
Camp Hilo Boro, res June 1 S, 2010
My Commission FBI
Mornber, Pennsylvanle Adsoclsllan of Nat+rrlbs
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REAGER & ADLER, P.C.
BY:JOHN H. PIETRZAK, ESQUIRE
Attorney I.D. No. 79538
Email: Jpietrzak ,ReagerAdlerPC.com
BY: THOMAS O. WILLIAMS, ESQUIRE
Attorney I.D. No. 67987
Email: Twilliams(c~Rea~erAdlerPC.com
2331 Market Street
Camp Hill, PA 17011
Telephone: (717) 763-1383
Facsimile: (717) 730-7366
Attorneys for Brandy Investors, LP
BRANDY INVESTORS, LP, : IN THE COURT OF COMMON PLEAS,
CUMBERLAND COUNTY, PENNSYLVANIA
Plaintiff
CIVIL ACTION
v.
CALABRESE & SONS, INC., NO. d ~ ^ '~~a, ~ /v c ~~
Defendant :CONFESSION OF JUDGMENT
AFFIDAVIT THAT JUDGMENT IS NOT BEING ENTERED
BY CONFESSION OF JUDGMENT AGAINST A NATURAL PERSON
IN CONNECTION WITH A CONSUMER CREDIT TRANSACTION
Commonwealth of Pennsylvania )
ss:
County of Cumberland )
I, John H. Pietrzak, being duly sworn according to law, hereby state that the judgment
being entered by confession is not being entered against a natural person in connection with a
consumer credit transaction.
Sworn to and subrscribed
Before me this ~`- day of
~y'Gt~S~- , 2007.
otary Public
Jo H. Pietrzak, Esqui
COMMONWEALTH_OF PENNSYLVANIA
Notarial Seal
Deborah L Brermerrian, Notary Public
Camp Hill Born, Cumbeiiartd County
My Commission Expires Jur>e 18, 2010
Member, Pennsylvania Assnclatinn of Nntaris~
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REAGER & ADLER, P.C.
BY:JOHN H. PIETRZAK, ESQUIRE
Attorney I.D. No. 79538
Email: Jpietrzak(cc~ReagerAdlerPC.com
BY: THOMAS O. WILLIAMS, ESQUIRE
Attorney LD. No. 67987
Email: Twilliams(cr~,RcagerAdlerPC.com
2331 Market Street
Camp Hill, PA 17011
Telephone: (717) 763-1383
Facsimile: (717) 730-7366
Attorneys for Brandy Investors, LP
BRANDY INVESTORS, LP, IN THE COURT OF COMMON PLEAS,
Plaintiff :CUMBERLAND COUNTY, PENNSYLVANIA
v. :CIVIL ACTION
CALABRESE & SONS, INC. and, NO. U'7' .. l~'l-~ ~Lv~ L
~~
JOSEPH CALABRESE, :
Defendants :CONFESSION OF JUDGMENT
ENTRY OF APPEARANCE
TO THE PROTHONOTARY:
Enter my appearance for the above-named Defendants pursuant to the Warrant of
Attorney contained in the Lease agreement between the parties, attached hereto.
Respectfully submitted,
REAGER & ADLER, P.C.
Date: August 8, 2007 ~
Jo . Pietrz squire
' " . shcldit5trsrlbrandylplabrese.lease
June 9, 2006
COMMERCIAL LEASE AGREEMENT
THIS LEASE AGREEMENT, made as of the 9~' day of June, 2006, by and between
BRANDY INVESTORS, L.P., a Pennsylvania limited partnership, with a mailing address of c/o
RSR Realtors, 3 Lemoyne Ilrive, Suite 100, Lemoyne, PA 17043, hereinafter referred to as
"Landlord", and CALABRESE & SONS, INC., a Pennsylvaaia business corporation, with a
mailing address of P.O. Box 1667, Mechanicsburg, PA 17055, hereinafter referred to as
"Tenant".
WHEREAS, Landlord desires to lease to Tenant the premises comprised of an office
and warehouse located at r406 Brandy Lane, Borough of Mechanicsburg, Cumberland
County, Pennsylvania-(the Building ), and the Tenant desires to lease the same upon the terms
and conditions and for the good and valuable considerations described in this lease agreement,
hereinafter sometimes referred to as the "Lease";
NOW THEREFORE, the parties hereto agree as follows:
1. LEASED PREMISES. Landlord leases, demises and lets to the Tenant, office and
warehouse space identified as the Building, and hereinafter sometimes referred to as the
"Premises", and Tenant hereby leases from Landlord the entire Premises known as 406
Brandy Lane, Mechanicsburg, Cumberland County, Pennsylvania 17055, consisting
of an approximate 80,000 square foot Building, together with all easement rights and
appurtenances applicable thereto.
~.
2. TERM. The term of this Lease is for a period of tea (10) years, commencing on the Stn
day of June, 2006 (the commencement date), being the date of the real estate- settlement
of the sale of the Premises from Tenant (Seller) to Landlord (Buyer), and ending at
midnight on the 30`~ day of June, 2016. Landlord and Tenant acknowledge that Tenant is
currently in possession of and occupies the Premises as of the commencement date. ,
Provided this Lease is not in default, Tenant is granted an option to renew this Lease as
follows: (1) at the option of Tenant, the term of the Lease may be extended for two (2)
renewal periods of five (5) years each by written notice to the Landlord at least 180 days
prior to the expiration of the term or any renewal term thereof, as the case may be; (2)
upon any valid exercise of any such option to renew, terms of the Lease shall remain in
full force and effect except that the minimum annual rent for each renewal period shall be
adjusted as set forth in Paragraph 3 below.
3. RENTAL. Tenant shall pay to Landlord a total, rent of $280,100.00 during the first (1St)
year. term of the Lease, payable in monthly installments of $23,341.67. In addition,
Tenant shall pay such Additional Rent, as set forth herein. The monthly rental shall be
payable in advance on the first day of each month beginning as of the commencement
date set forth in Paragraph 2 above, at such address designated by Landlord in Paragraph
1
- shcldiblrsrlbrandylcalabrese.lease
• June ~, 2006
20 (entitled Notices) herein below, or such other places as
subject to the following: at the time of settlement on the ae Landlord may designate,
Tenant (Seller) to Landlord (Buyer), Tenant will rovide le of the real estate from
(3) months base rent in the amount of $70,025.00 to be held dlord with a credit of three
for the month of June 2006 will be prorated at settlement. by Landlord in escrow. Rent
Tenant, shall thereafter commence in advance on the Regular rental payments by
The rent as set forth above shall remain constant for the rfirst~y ~f ,the f°llowing month.
above there on an annual basis rent shall increase b two (lsc) year of the lease term.
pnor lease year s rent as follows: y and one half percent (2.5%)
Lease Year
yew 1: Annual Rent
Monthl Rent
Year 2: ~ $280,1 OO.QO
$287
102
50 $23,341.67
Year 3: ,
.
$294
280
06 $23,92,5.21
Year 4: ,
.
$301
637
06 $24,523.34
Year S: ~ ,
.
$309
177
98 $25,136.42
Year 6: ,
.
$316
907
42 $25,764.83
Year 7: ,
.
$324
830
10 $26,408.95
Year 8:: ,
.
$332
950
85 $27,069.18
Year 9: ~ ,
.
$341
274
62 $27,745.90
year 10~: ,
.
$349
806
48 $28,439.55
,
. $29,150.54
Any rental payment not received by the 5th of the month shall
b
The rent- for the renewal t e subs ect to a S % late fee.
erms set forth in paragraph 2 ab
one-half percent (2.5%°) above the prior lease year's
rent ov
all increase by two and
e
, as the case maybe. . rent or
ri
p or renewal lease year's
All amounts (other than Rental, which shall be payable as he '
the ~ Tenant to the Landlord hereunder shall be paid withi rein set forth) owed by
date that Landlord; renders statements of account then five (5) days from the
(including Rental) not paid when due shall accrue and be efore and all amounts
one percent 1 % ~ ar interest at the rate of
( )per month (twelve percent (12%) annually) until a'
the essence in Tenant's a p id. Time is of
p yment of Rental and Tenant's performance of each and
every term, covenant and condition of this Lease incumbent on T
errant.
4• REAL ESTATE TABS,
A• Real Estate Taxes. As Additional Rent, Tenant a e
levied upon the subject property o f an ~' es to pay all real estate taxes
Payments by Tenant of all real estate taxes sha 1 comrn.~ng ~~e ~sessments.
the rentals hereunder. nce simultaneously with
2
• ~ . shckllb~rsrlbrandylcalabrese.lease
June 9, 2006
B. Personal Property Taxes. Tenant. agrees to pay any and all taxes levied upon the
personal property, including trade fixtures and inventory, kept on the premises, as
well as all taxes levied against the land and the building and improvements
situated thereon or on the rents derived by Landlord therefrom during the term of
the Lease after~presentation to Tenant by Landlord of statements from the taxing
jurisdiction m which said property is located.
Landlord may,,: however, direct the taxing authorities to send the statements
directly to the Tenant. Landlord further agrees that Tenant, in the name of
Landlord, but at Tenant's sole expense, may protest any assessment before any
taxing authority or board or maintain any necessary legal action in reference to
said assessment or for the recovery of any taxes paid thereon. Nothing herein
contained shall require Tenant to pay any income or excess profit taxes assessed
against Landlord or any corporation, capital stock or franchise tax imposed upon
. Landlord.
C. Method of Payment. Landlord shall give written notice advising Tenant of the
amount of real estate taxes, together with a copy of the tax bill, and Tenant shall
pay such amount to Landlord- within the first thirty (30) days of the face amount
period.. Landlord and Teaant acknowledge that at the real estate closing
Landlord (Buyer) will not reimburse Tenant (Seller) for the current year real
county/towashp and school real estate taxes that have been paid by Tenant,
and Tenant will be considered paid until the next calendar or fiscal year tax
billing periods ~ as applicable. If this. Lease shall terminate during a tax year,
Tenant shall p~.y to Landlord a pro rata portiori of the amount that would have
been due for the full tax year based on the number of days of said tax year expired
on the date of termination.
5. UTILITIES AND SERVICES. Tenant-shall contract in its own name for and promptly
pay all charges for electricity, gas, water, sewer, telephone and any other utility used or
consumed in the Premises to the concern furnishing the same.
Landlord shall not be .liable. in any way to Tenant for any failure or defect in or of any
utility service furnished to the Premises by reason of any requirement, act or omission of
the public utility company serving the Premises with electricity, water or other utility
service, or because of necessary repairs or improvements. Tenant's use of electric energy
in the Premises shall not at any time exceed the capacity of any of the electrical
conductors and equipment in or otherwise serving the Premises. To insure that such
capacity is not exceeded and to avert possible adverse effect upon the Building electric
service, Tenant shall nit, without Landlord's prior written consent in each instance (which
shall not be unreasonably withheld) connect any additional fixtures, appliances or
equipment (other tha~i lamps, typewriters and similar small office machines) to the
Building electric distribution systems or make any alteration or addition to the electric
system of the Premises existing on the commencement date of this Lease.
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June 9, 2006
6. MAINTENANCE OF LEASED PREMISES.
A. Maintenance by Teaant. Tenant shall, at its sole cost, keep and maintain the
interior Leased Premises [together with exterior (i) windows, including sashes, (ii)
heating, ventilating and air conditioning' equipment and sewer and other lines
serving the Leased Premises], including without limitation, the partitions, ceiling,
interior portions of exterior walls, floor covering therein, and the fixtures,
equipment, machinery, appliances and utility lines therein and appurtenances
thereof [such as, but not limited to, lighting fixtures and- lenses and such fixtures,
equipment, machinery controls, appliances and utility lines and appurtenances
thereof, as are used for, in connection with or which are a part of the electrical,
plumbing, heat~~g, air conditioning, ventilating„ or any other mechanical systems
in or serving t~:e Leased Premises], in conformity with Landlord's hazard insurer,
neat and clean and in good order, condition, maintenance and repair. Tenant shall
also at its cost 'procure and maintain in the Leased premises all safety appliances
required by Landlord's hazard insurer to be maintained therein. Tenant .shall be
responsible for' the cost of replacement of any and all plate; window and other
glass (structural or otherwise) in, on or about the Leased Premises, which may be
broken or destroyed. Before undertaking repairs to the Leased Premises (other
than minor interior non-structural repairs), Tenant shall first obtain Landlord's
approval of the plans and specifications therefore, which approval is not to be
unreasonably withheld. Tenant shall contract with a heating and air conditioning
contractor, approved by Landlord, who shall provide a complete service and
maintenance contract to Tenant at least annually, the inspection of the HVAC
equipment serving the Leased Premises, including a written report of the
condition there of to be provided to Landlord and Tenant, the periodic oiling of
the equipment where required, the tightening of belts, the filling of pitch pans and
the sealing of :water leaks, among other things. The service and maintenance
contract and it~~ related costs shall be the sole cost and expense of the Tenant. The
existence of a service contract with a Landlord approved vendor shall not relieve
Tenant of its r obligations to maintain and repair such equipment as above
provided. r
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B. Roof Repair and Replacement. The current condition of the roof requires repair
the cost of which has been provided for through the escrow of funds by Tenant
(Seller) at the time of closing on the sale of the real estate to Landlord (Buyer).
Landlord shall `make such required repairs and use said escrow funds. In addition,
to the extent that the existing roof requires replacement during the term of this
lease, or any renewal terms, Landlord's cost of the roof replacement shall be
amortized over the remaining lease term, including any renewal terms, and
Tenant's rent shall be increase by said amount. Landlord shall give Tenant thirty
(30) days advance notice of any increase in rent.
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June 9, 2006
C. Maintenance by Landlord. Subject to the obligations of .Tenant under the
provisions of I3 above, the foundations, ~ roof (excluding interior ceilings) and
except as specifically provided in B above, and exterior portions of the exterior
walls of the Lased Premises shall be maintained by Landlord at its expense ~ in
good order, condition, maintenance and repair. Landlord shall not be deemed to
have breached its obligation to make the repairs required of Landlord as set forth
in this Section; or to be liable for any damages resulting therefrom, unless
Landlord fails F to make the same within a reasonable period (taking into
consideration tl:Ie type of repair involved) after receiving notice from Tenant of the
need therefor.
7. SECURITY. The three (3) month base rent balance in the. amount of $70,025.00 set
forth in Paragraph 3 above shall serve as Landlord's deposit the receipt of which is hereby
acknowledged as security for the full and faithful performance by Tenant of each and
every term, covenant, and condition of this Lease. In the event that Tenant defaults in any
of the terms, provisions, covenants, and conditions of this Lease, including but not
limited to payment of :any rental or additional rental, Landlord may use, apply, or retain
the whole or any part' of the security so deposited for the payment of any such sum in
default, or for any other sum which Landlord may expend or be required to expend by
reason of Tenant's deult, including any damages or deficiencies in the reletting of the
premises, whether st~,ch damage or deficiency may occur before or after -some .
repossession proceeding or other reentry by Landlord. In the even that Tenant shall fully
and faithfully comply with all the terms and conditions of this Lease, the security or any
balance thereof, shall be returned to Tenant after expiration of the lease term. The Tenant
shall not be entitled to any interest on the aforesaid security. If the Landlord utilizes any
of the security depositin curing a default on the part of Tenant, Tenant shall immediately
pay Landlord the amount necessary to restore the security deposit to its original amount.
8. PERMITTED USES BY TENANT. Tenant represents, covenants and warrants that ,the
Premises will be used lawfully for the following purposes:
A machine shop operation
9. OTHER IMPOSITIONS. In addition to the Rental provided hereunder, Tenant agrees to
pay each and all licenses and permit fees and all taxes and increase in taxes levied and
assessed by any governmental body by virtue of any special leasehold improvements or
by virtue of Tenant conducting its described use, business or operation on the Premises,
the employment of agents, servants, or other third parties, the bringing, keeping or selling .
of personal property or .chattels of whatsoever nature from the Premises. The foregoing is
intended to bind Tenant to pay, and promptly discharge, all taxes and/or levies, together
with related interest acid penalties, whether assessed by Federal. or State authority or any
political subdivision thereof, directly or indirectly related to its business, improvements,
functioning, employment, assets, existence, sales entertainment or the like. Tenant
specifically agrees to reimburse Landlord for any increase in ad valorem taxes resulting
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June 9, 2006
from use of fixtures or improvements by Tenant which Landlord becomes obligated to
PaY•
10. ASSIGNMENT AND SUBLEASE. Tenant shall not make or permit any assignment
(by operation of law or otherwise) of this Lease without the prior express written consent
of Landlord.. Tenant- shall make no sublease or mortgage of this Lease, in whole or in.
part, without the prior express written, consent of Landlord. Tenant shall not permit the
use or occupancy of the Premises, or any portion thereof, by anyone other than Tenant
and shall not make an~r transfer of any nature whatsoever of its-right under this Lease or
of Tenant's interests set forth in this Lease without. the prior written consent of Landlord
~:
first had and obtained., Any such assignment or any such subletting, whether approve by
Landlord or not, shallFnot relieve the Tenant of any liability for the total agreed rentals
due hereunder nor frorn Tenant's obligation to perform all the covenants herein contained.
Any written consent which may in any specific instance or circumstance be given by
Landlord shall not imply or be deemed to be consent in any other instance or
circumstance. r
11. SUBORDINATION, ATTORNMENT AND NON-DISTURBANCE. The parties
acknowledge and agree that this Lease Agreement is under, subject, and subordinate to
any and all mortgages and security interests that presently encumber the property or that
in the future may encumber the property of which the leased premises is a part without
the necessity of any further instrument or act on the part of the Tenant to effectuate such
subordination. Tenant agrees, at the election of Landlord, to attorn to any holder of any
mortgage to which this lease is subordinate. Tenant shall execute and deliver upon
demand such further .instrument or instruments confirnung such subordination of this
Lease to all underlying leases and to the lien of any such mortgage and/or other
encumbrance as shall 'be desired by any such mortgage or proposed mortgage or by any
other person. Tenant ~iereby appoints Landlord the attorney-in-fact of Tenant irrevocably
to execute and delivery any such instrument or instruments for and in the name of Tenant.
If Landlord shall mortgage the real property of which the leased premises is a part,
Landlord shall obtain ~rom the lienholder aNon-Disturbance Agreement for the benefit of
Tenant. Any Non-Disturbance Agreement is subject to the requirement that Tenant shall
not have been . in default under the terms, covenants and conditions of this lease or any
time during the Lease tzrm.
12. COMPLIANCE WITH LAWS AND INDEMNIFICATION. Tenant agrees to strictly
comply with all pertinent laws, ordinances, statutes and regulations whatsoever, of any
governmental body or subdivision, incident to its occupancy of the Premises and its use
thereof. Tenant further covenants and agrees to indemnify and hold Landlord harmless
from any loss, cost or expense whatsoever, directly or indirectly resulting or occasioned
to, or imposed upon, Landlord (1) by injury to or destruction of life or property resulting
from the use and occupancy by Tenant (including, but not limited to any such injury or
destruction caused, in whole or in part, by its agents, servants, employees, independent
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June 9, 2006
contractors, invitees a~ licensees), or (2) by damage to or destruction of the Building
structure, or any part hereof, or of any abutting real property caused by or attributable to
the negligent act or alts or omission or omissions to act of Tenant (including but .not
r
limited to, any such damage or destruction caused, in whole or in part, by its agents,.
servants, employees, cbntractors, invitees, or licensees) or caused by or attributable to the
Tenant's failure to perdrm its obligations under this lease. As used in this Paragraph 12
the term "Landlord" shall be deemed to include any agent, employee or servant of
Landlord.
13. QI7IET ENJOYMENT UNTENANTABILITY. Landlord hereby warrants that Tenant
upon payment of the rent and performing the provisions of this Lease on its part to be
paid and performed shall have .peaceful and quiet possession of the Premises against all
parties claiming adversely thereto by or under Landlord. If, during the term of this Lease,
the Building or building equipment or Premises be destroyed by fire or any other cause
whatsoever, or partially destroyed so as to render the Premises wholly unfit for
occupancy, and Landlord shall conclude that they cannot be repaired for occupancy
within 120 days from the happening of the loss of damage, then this Lease shall, at
Landlord's option, irritmediately terminate in which case Tenant shall surrender the
Premises and all intezest therein and Tenant shall pay rent only to the time of such
surrender. In case of total or partial damage or destruction to the Premises, Landlord rriay
re-enter and repossess the same or any part thereof for the purpose of removing or
repairing the loss or damage and shall proceed with reasonable dispatch to the repair of
same unless, under the foregoing clause of this paragraph, the Lease shall have
terminated. The rent during the period of such repairs shall be wholly abated if all of the
Premises have been thus repossessed by Landlord for the purpose of repair for the period
that Tenant has been thus dispossessed; and if only a portion of the Premises are thus
repossessed, the rent shall be abated for the period of such dispossession ratably, based on
the portion of the Premises thus repossessed.
Should the Building or Premises be destroyed or damaged by fire or other cause, due to
the fault or neglect of'Tenant or its agents, servants, employees, independent. contractors,
invitees, or licenses, the Landlord may repair such damage without prejudice to any rights
of subrogation of Landlord's insurer and there shall be no apportionment or abatement of
rent.
14. SIGNS.. Tenant shall ,not erect or install any sign or other type display whatsoever, either
upon the exterior of t1:e Building, upon or in any window, or door therein located, or the
Premises, without the~prior express written consent of Landlord. Any free-standing sign
to be situate on the Premises shall be approved in writing by Landlord and comply with
all applicable Township signage requirements. It is the responsibility of the Tenant to
investigate all appropriate governmental authorities governing sign size and location and
to optain approval.. ;
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June 9, 2006
15. TENANT'S CARE OF PREMISES. Tenant shall not make alterations in, or additions
or improvements to the Premises without the prior express written consent of Landlord.
Landlord's refusal to grant such consent shall be inclusive. In addition:
A. .Tenant shall commit no waste with respect to the Premises and shall take good
care of and keep in good repair the Premises and .fixtures therein and,- at the
expiration or earlier termination or cancellation of this Lease, shall surrender the
Premises and ~t~res therein in the same condition as when initially received by
Tenant, subject only to reasonable wear and tear resulting from normal use, and
shall surrenderfall keys for the Premises to Landlord at the place then fixed for-the
payment of rent and shall remove all Tenant's property before surrendering the
Premises. All (injuries to the Building or fixtures caused by moving the property
of Tenant in qr out of the Premises, and any and all breakage or other injury
whatsoever done by Tenant, its agents, servants, employees, independent
contractors, licenses, invitees, or visitors, as well as any damage done by water,
steam, electricity, fire or other substance due to the neglect of the aforesaid
parties, may be repaired by Landlord, at the expense of Tenant, and shall become
due and payable upon delivery of a statement of such charges by Landlord to
Tenant or mailing the same postage prepaid, to Tenant at his last known address.
B. All alterations,, additions or improvements upon or affixed to or in the Premises
(including, but not limited to carpets, drapes and anything bolted, nailed, plumbed
or otherwise secured in a manner customarily deemed to be permanent) shall be
deemed to be : a fixture inuring to the Building, and. shall not be subject to
attachment of a mechanic's, materialman's or similar lien, and shall in any event
be and become the property of Landlord and remain upon the Premises and be
surrendered at fthhe end of this Lease, Business machines and such equipment axe
excluded from his section.
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C. Tenant shall ndt use or permit to be brought into the Premises or the Building any
J~
flammable or explosive material or other articles deemed hazardous to persons or
property. Tenant shall not occupy the Premises in any manner which shall
invalidate or tie . in conflict with fire or other insurance policies covering the
Building or its operation or the Premises, or increase the rate of fire or other
insurance in the Building or its operation or the Premises, over that in effect prior
to this Lease. If, by any reason of failure of Tenant to comply with provisions of
this paragraph, any insurance premium shall be at the beginning of this Lease or
any time thereafter be higher than it otherwise would be, the Tenant shall
reimburse the ~,andlord as additional rent hereunder for that part of all insurance
premiums thereafter paid by Landlord, which shall have been charged because of
such failure by Tenant and shall make such reimbursement upon the first day of
the month following such payment by Landlord.
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June 9, 2Q06
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D. Tenant shall not permit any obnoxious odors, chemicals or othex substances to be
produced, manufactured or stored in the demised premises. A breach of the
provision shall ~e deemed a material breach of this Lease entitling the Landlord to
exercise. any remedies available to it hereunder or at law.
i
16. WAIVER OF CLAIMS. To the extent permitted by law, the Landlord shall not be
liable for and the Tenant releases the Landlord and Landlord's agents, contractors and
servants from, and waives all claims for damage to person or property sustained by the
Tenant or any occupant of the Building or Premises resulting from the use and condition
of the Premises or anypart or any equipment or appurtenance becoming out of repair, or
resulting from any accident in or about the Premises, or resulting directly or indirectly
from any act or neglect of any tenant or occupant of the Premises or of any other person,
including Landlord, its' agents or employees. This section shall apply especially, but not
exclusively, to the flooding of basement or other subsurface areas, and to damage caused
by refrigerators, sprinkling devices, air-conditioning apparatus, water, snow, frost, steam,
excessive heat or colds falling plaster, broken glass, sewage, gas, odors or noise, or the
bursting or leaking of pipes or plumbing fixtures, and shall apply equally whether any
such damage results fr'4m the act or neglect of the Landlord or of any other persons, and
whether such damage be caused or result from any thing or circumstance above
mentioned or referred , or any other thing or circumstance whether of a like nature or of
a wholly different nature. If any such damage, whether to the Premises or the Building,
i.
result from any act or :neglect of the Tenant, the Landlord may, at the Landlord's option,
repair such damage acid the Tenant shall, upon demand by the Landlord, reimburse the
Landlord forthwith for•' the total cost of such repairs. Tenant covenants to indemnify and
save Landlord harmless against and from any and. all loss, cost, damage, claim, liability or
expense including, but not limited to,.reasonable attorney's fees, arising out of or resulting
from any injury or claim of injury of any nature of sort whatsoever to any person or
property suffered or received in or about the Premises at any time during the term hereof,
or arising out of any failure of Tenant in any respect to: comply with any of the
requirements or provisions of this Lease. Tenant hereby releases Landlord and Landlord's
officers, agents, employees and servants, from any and all claims or demands for
damages, loss, expense or injury to the Premises, or to the furnishings and fixtures and
equipment, or inventory or other property of Tenant in, about or upon the Premises, as the
case may be, which nay be caused by or result from perils, events or happenings which
are the subject of insurance carried by the Tenant and in force at the time of any such loss.
All property of any bind belonging to the Tenant or any other person that is in the
Building or the Premises shall be there at the sole risk of the Tenant or other person only,
and the Landlord shall not be liable for damage thereto or theft or misappropriation
thereof. Landlord or its agents, servants or employees, shall not be liable .for any injury,
loss or damage to any;persons or property on or about the premises from any other cause
of whatsoever natures unless the same is directly caused by gross negligence of the
Landlord and there is no fault or negligence of the Tenant, and Tenant shall save
Landlord harmless and indemnified against such injury, loss or damage, or liability or
claim thereof arising from any act, omission or negligence of Tenant.
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June 9, 2006
17. TENANT'S INSURANCE. Tenant shall, during the entire term hereof, at its sole cost
and expense, obtain, maintain and keep in full force and effect the following policies of
insurance:
;,.
A. All risk insurance including fire insurance (with extended coverage and vandalism.
and malicious r~.ischief coverage), water damage, sprinkler leakage and plate glass
insurance, on the standard forms, insuring all of Tenant's property in the Premises,
and all betterments, additions, repairs, improvements and alterations made to the
Premises by Tenant, and all plate glass windows, plate glass doors and other plate
glass in the Premises, in an amount equal• to 100% of the replacement cost thereof.
B. A combination ~f comprehensive general liability insurance -and excess (umbrella)
coverage to include personal injury, bodily injury, broad-form property damage,
operation's hazard, independent contractor's coverage, blanket contractual liability
(including insuring contractual liability under the indemnifications of Landlord by
Tenant set forth in this Lease), premises operations liability and in limits approved
by Landlord in~writing which approval shall not be unreasonably withheld. Said
policies shall name Landlord as an additional insured.
C. Worker's compensation and employer's liability insurance in a form and amount
required by law.
D. Any, other form or forms of insurance standard to the industry as Landlord may
reasonably regti~ire from time to time in form, in amounts and for insurance risks
against which i~ prudent Tenant would protect 'itself.
~~- .
All policies sh~.ll be taken out with insurers that are reasonably acceptable to the
Landlord and which are. licensed to do business. in the Commonwealth of
Pennsylvania and certificates showing that such coverages to be in effect shall be
furnished to Landlord upon request. In addition to Tenant, all policies shall also
name Landlord and .any other person, firm or corporation designated by Landlord
and in privity :with it, as an additional insured. Each insurer -shall agree, by
endorsement upon the certificate issued by it or by independent instrument issued
to Landlord, that it will give .Landlord thirty (30) days' written notice before the
policy in question shall be altered or canceled. Tenant shall be entitled to provide
the insurance :coverage required hereby through the use of blanket insurance
policies covering the Premises. Tenant agrees that certificates of insurance shall
be delivered to Landlord as soon as practicable after the placing of the required
insurance and that renewal certificate shall be delivered not less than ten (10) days
prior to the expiration of such policies.
E. Insurance on Buildings and Improvements. As additional rent, in each calendar
year during the term, Tenant shall pay to Landlord, Landlord's total cost of
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June 9, 2006
#:.
insuring the Premises and improvements thereon, including public liability,
(including "umbrella coverage"), workmen's compensation and hazard insurance
(including rental value insurance, fire and extended coverage [with vandalism and
malicious mischief endorsement]; boiler and machinery, and all-risk policies).
Tenant's insurance payment shall be paid in monthly installments on the first day
of each calendar month during the term in advance, in an amount reasonably
estimated by Landlord. Within 90 days after the end of each calendar year during
the term, Landlord shall furnish Tenant with a statement summarizing the actual
insurance cost for such calendar year.
F. Business Liability Insurance. Tenant shall keep in force with insurers that are
reasonably acceptable to the Landlord and which are licensed to do business in the
Commonwealth of Pennsylvania, a policy to cover business liability, including
premises operaEions liability and business interruption liability, in which the limits
of coverage shall not be less than $1,000;000.00, single limit. In addition to
Tenant, the policy shall name Landlord as an additional insured. Tenant shall
continually provide. Landlord with a certificate of such insurance, which shall
provide that the insurer will give the Landlord at least 30 days' written notice prior
to any cancellation of, lapse or material change in the insurance.
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G. Indemnification. Tenant will, subject to the provisions of paragraph H below,
indemnify, save harmless and defend Landlord and its officers, agents and
servants, from and against any and all claims, actions, liability and expense in
connection with loss of life, bodily injury and/or damage to property arising from
or out of any occurrence in, upon or at the Premises, or the occupancy or use by
Tenant, its .agents, employees, servants, subtenants, licensees or concessionaires,
of the Premises or any part thereof, or outside the Premises which is occasioned
wholly or in part by any willful or negligent act or omission of Tenant, its agents,
employees, servants, subtenants, licensees or concessionaires, unless the same be
caused by the willful or negligent act or omission of Landlord, its agents,
employees or servants.
:;.
H. Waiver of Sub.o;;ation. Anything in this Lease to the contrary notwithstanding, it
is agreed that ;each party (the "Releasing Party") hereby releases the other (the
"Released Party") from any liability which the Released Party would, but for this
paragraph H, !nave had to the Releasing Party during the term of this Lease,
resulting from the occurrence of any accident or occurrence or casualty (i) which
is or would be covered by an "all-risk" policy (irrespective of whether .such
coverage is being carried by the Releasing Party), or (ii) covered by any other
casualty or property damage insurance being carried by the Releasing Party at the
time of such occurrence, which accident, occurrence or casualty may have resulted
in whole or in part from any act or neglect of the Released Party, its officers,
agents or employees; PROVIDED, HOWEVER, the release hereinabove set forth
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•she\dlblrsrlbrandylcalabrese.lease
June 9, 2006
shall become inoperative and null and void if the Releasing, Party wishes to place
the appropriate;insurance with an insurance company which (a) takes the position
that the existence of such release vitiates or would adversely affect any policy so ,
insuring the Re'~easing Party in a substantial manner and notice thereof is given to
the Released Party, or (b) requires the payment of a higher premium by reason of
the existence o :such release, unless in the latter case the Released Party within 10
days after notice thereof from the Releasing Party pays such increase in premium.
18. EMINENT, DOMAIl~. If the whole of the Premises shall be taken or condemned, or
purchased in lieu thereof, by any government authority for any public or quasi-public use
or purpose, then, in that event, the term of this Lease shall cease and terminate from the
time when the possession shall be required for such. use or purpose. The rent shall in such
case be apportioned to the date of such taking or purchase, as the case may be. In the
event of a partial taking only of the Premises, the Landlord shall so notify the Tenant in
writing and the Tenant shall have the option to cancel this Lease, giving the Landlord
written notice within twenty (20) days after receipt of such notice from the Landlord;
provided the balance of the Premises remaining cannot be suitably used by the Tenant for
its purposes heretofore stated. If the Tenant is entitled to exercise said option to cancel
and does so, then such canceling shall be effective and the rent shall in such case be
apportioned to the date of such taking or purchase, as the case maybe. In the event the
Tenant is not entitled do cancel the Lease or, if it is entitled to do so, it does not exercise
its option, said Tenant'will be responsible for the rent as heretofore set forth, apportioned
to the date of such tak~rig or purchase; i.e. after the taking, or purchase in lieu thereof, the
rent herein reserved shall be reduced and the Tenant shall be ~ required to pay that
,proportion of rent herein reserved as the net rentable square feet contained in the
remaining leased space bears to the net rentable square feet contained in the leased space
before such taking or purchase.
The Landlord and the: Tenant hereby agree that any award of proceeds resulting from a
condemnation or sale in lieu thereof of the whole or part of the Premises shall belong
solely to the Landlord and the Tenant hereby waives any right to make any claim
therefore as the result of this Lease.
19. ACCESS TO PREMISES Landlord or Landlord's agents shall have the right to enter the
Premises at all reasonable times to examine the same and to show them to prospective
purchasers, mortgagees, lessees or tenants of the Landlord, or to public officials lawfully
having an interest therein, or to make such repairs, alterations, improvements or additions
as the Landlord may deem necessary or desirable. Landlord shall not be liable to Tenant
for any inconvenience, interferences, annoyance, loss or damage resulting from work
done in or upon they Premises or any portion of the Building or adjacent grounds.
Landlord will make ,all attempts to provide 24 hour advance notice of any entry,
emergencies excepted;
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20. NOTICES. Any notice which the Landlord may desire or be required to give the Tenant
shall be deemed sufficiently given or rendered, if in writing, delivered to the Tenant by
certified or registered mail, return receipt requested, addressed to the Tenant, at the
address first above written or at .the Premises, as appropriate, and any notice which
Tenant may desire or be required to give the Landlord shall be deemed sufficiently given
or rendered, if in writing, delivered to Landlord by certified or registered mail, return
receipt requested, addressed to 'its business office at: c/o RSR Realtors, 3 Lemoyne
Drive, Suite 100, Lemoyne, PA 17043, or such other places as Tenant or Landlord may
from time to time designate in writing. Any notice given hereunder shall be deemed
delivered when the return receipt is signed or refusal to accept the notice is noted thereon.
21. TENANT'S DEFAUTIT. If the Annual Minimum Rent, additional rent, or any other
charge payable by Tenant under this Lease shall be unpaid on the date payment is
required by the terms Y~~ereof and shall remain so for a period of S days, or if Tenant fails
to perform any of the ether terms, conditions, covenants and obligations of this Lease to
be observed and performed by Tenant for more than 15 days after Landlord gives Tenant
notice of such default ~(it being agreed that a default, other than the failure to pay money,
which is of such a character that rectification thereof reasonably requires longer than said
15 day period and corrlpletes the same with due diligence), or if Tenant shall vacate or
abandon the Leased Premises or suffer this Lease to be taken under any writ of execution,
attachment or other process of law, or if this Lease shall by operation of law devolve
upon or pass to any other party, or if an "Act of Bankruptcy" (as defined in Section 18.02)
shall occur, or if Landlord shall have notified Tenant of Tenant's default three (3) or more
times in any twelve calendar month .period, then, in any of such events, Landlord shall
have, besides its other rights or remedies, the following immediate rights:
A. At its option, to terminate this Lease and the term hereby created without any right
on the part of .Tenant to waive the forfeiture by payment of any sum due or by
other performance of any condition, term or covenant broken, whereupon
Landlord shall be entitled to recover, in addition to any and all sums and damages
for violation o~ Tenant's .obligations hereunder in existence at the time of such
termination, damages for Tenant's default in an amount equal to the amount of the
rent reserved fir the balance of the term of this Lease, as well as all other charges,
payments, costs and expenses herein agreed to be paid by Tenant, all of which
amount shall be immediately due and payable from Tenant to Landlord.
B. At its option, ~y notice to Tenant, to re-enter and take possession. of the Leased
Premises with~3ut terminating this Lease. No re-entry or taking possession of the.
Leased Premises by Landlord pursuant to this clause B. shall be construed as an
election on its part to terminate this Lease unless a notice of such intention is
given to Tenant (all other demands and notices of forfeiture or other similar
notices being hereby expressly waived by Tenant).
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June 9, 2006
C. At its option, t~ require that upon (i) any termination of this Lease, whether by
lapse of time o~ by the exercise of any option by Landlord to terminate the same
or in any other manner whatsoever, or (ii) any termination of Tenant's right to
possession witl#out termination of this Lease, Tenant shall immediately surrender
possession of tie Leased Premises to Landlord and immediately vacate the same,
and remove all effects therefrom, except such as may not be removed under other
provisions of this Lease.
D. At its option, ~o make such alterations and repairs as Landlord shall determine
maybe reasonably necessary to relet the Leased Premises, and to relet the same or
any part thereof for such term or terms (which may be for a term extending
beyond the term of this Lease) and upon such terms and conditions as Landlord in
its sole discretion may deem advisable. Upon each reletting, all rentals received
by Landlord from such reletting shall be applied as follows: first, to the payment
of any indebtedness other than rent or other charges due under this Lease from
Tenant to Landlord; second to the payment of any reasonable costs and expenses
of such reletting, including brokerage fees and attorneys' fees and costs of such
alterations and repairs, each of which fees and costs shall be reasonable in
amount; and third,. to the payment of rent and other charges due and unpaid
hereunder. In r~o event shall Tenant be entitled to receive any surplus of any sums
received, by Landlord on a reletting in excess of the rental and other charges
payable hereu~ler. If such rentals and other charges received from such reletting
during any month are less than those to be paid during that month by Tenant
hereunder, Tenant shall pay any such deficiency to Landlord (notwithstanding the
fact that Landlord may have received rental in excess of the rental and other
charges payable hereunder in previous or subsequent months), such deficiency to
be calculated ~~and payable monthly. Notwithstanding any reletting without
termination, Landlord may at any time thereafter elect to terminate this Lease for
such previous breach in the manner provided in this Section.
E. CONFESSION OF JUDGMENT: If Tenant shall default in the payment of
the rent herein reserved or in the payment of any other sums due hereunder
by Tenant, Tenant hereby authorizes and empowers any Prothonotary or
attorney of any court of record to appear for Tenant in any and all actions
which may be brought for said rent and/or said other sums; and/or to sign
for Tenant an agreement for entering in any competent court an amicable
action or actions for the recovery of said rental and/or other sums; and in
said suits or in said amicable action or actions to confess judgment against
Tenant for a1~ or any part of said rental and/or said other sums, including
but not limned to the amounts due from Tenant to Landlord under
subparagraphs A, B, C and/or D of this paragraph; and for interest and
costs, together with any attorneys' commission for collection of ten percent
(10%). Such authority shall not be exhausted by one exercise thereof, but
judgment mad be confessed as aforesaid from time to time as often as any of
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June 9, 2006
said rental and/or other sums shall fall due or be in arrears, and such powers
may be exercised. as well after the expiration of the initial term of this Lease
and/or during. any extended or .renewal term of this Lease and/or after the
expiration of any extended or renewal term of thi Leas f'
% (Tenant)
F. When this Lease and the term of any extension or renewal thereof shall have
been terminated on account of aay default by Tenant .hereunder, and also
when the tern hereby created or any extension or renewal thereof shall have
expired, it shad be lawful for any attorney of any court of record to appear
as attorney, fair Tenant as well as for all persons claiming by, through or
under Tenants and to sign an agreement for entering in any competeat court
an amicable action in ejectment against Tenant and all persons claiming by,
through or u~gder Tenant and therein confess judgment for the recovery by
Landlord of possession of the Premises, for which this Lease shall be his
sufficient warrant; thereupon, if Landlord so desires, an appropriate writ of
possession may issue forthwith, without any prior writ or proceeding
whatsoever, and provided that if for any reason after, such action shall have
been commenced it shall be determined that possession of the Premises
remain in or be restored to Tenant, Landlord shall have the right for the
same default and upon any subsequent default or defaults, or upon the
termination of this Lease or Tenant's right of possession as hereinbefore set
forth, to bring one or more further amicable action or actions as
hereinbefore set forth to recover possession of the Premises and confess
judgment for,, the recovery of possession of the ~ emise~ as hereinbefore
provided.
(Tenant)
+t .
G. In any amicable action of ejectment and/or for rent and/or other sums
brought here~n, Landlord shall first cause to be filed in such action an
affidavit mad, by Landlord or someone acting for Landlord, setting forth the
facts necessary to authorize the entry of judgment, of which facts such
,.
affidavit shalf: be prima facie evidence, and if a true copy of this Lease (and
of the truth o'f the copy such affidavit shall be sufficient evidence) shall be
filed in such shit, action or actions, it shall not be necessary to file the original
as a warrant of attorney, any rule or Court, custom or practice to the
contrary notwithstanding.
(Tenant)
H. At its option, to collect from Tenant any other loss or damage which Landlord
may sustain by reason of any breach and any diminished value of the Leased
Premises resulting from said breach.
15
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June 9, 2006
I. Landlord's Right to Cure Defaults. If Tenant fails to perform any agreement or
obligation on ids part to be performed under this Lease, Landlord shall have the
right (i) if no e~m.ergency exists, to perform the same after giving 15 days' notice.
to Tenant; and= (u) m any emergency situation; to perform the same immediately
without notice; or delay. .For the purpose of rectifying Tenant's defaults as
aforesaid, Lan~lord shall have the right to enter the Leased Premises.. Tenant
shall, on demand, reimburse Landlord for the costs and expenses incurred by
Landlord in rectifying Tenant's defaults as aforesaid, including reasonable
attorneys' fees. Landlord shall not be liable or in any way responsible for any
loss, inconvenience, annoyance, or damage resulting to Tenant or anyone holding
under Tenant for any action taken by Landlord pursuant to this Section.
Tenant hereby waives and releases all errors and defects which may intervene in the
Landlord's exercise ~ of any of its remedies hereunder, including the summary
remedies; Tenant further waives the right of inquisition on any real estate levied on
and Tenant voluntarily consents to an immediate execution upon any judgment
obtained by Landlord; Tenant also waives and releases all relief from any and all
appraisement, stay or exemption law of any state now in force or hereafter enacted;
Tenant waives any a`~otice to quit required by any law win force f he ter;
enacted. ~ ,
~h (Tenant)
;;.
--
Nothing in this Section shall be deemed to limit Landlord's rights and remedies in the
event of a default by~Tenant, and the Landlord's rights and remedies set forth in this
:~
Lease shall be in addition to those available to Landlord at law or in equity.
22. BANKRUPTCY. If at any time prior to or after the commencement of the term of this
Lease there shall be filed by Tenant or Guarantor, in any court pursuant to any statute
either of the United States or of any State, a petition in banla-uptcy (including, without
limitation, a petition for liquidation, reorganization or for. adjustment of debts of an
individual with regular income), or if any case, proceeding or other action shall be
commenced seeking to have an order for relief entered against Tenant or Guarantor as a
debtor in bankruptcy :proceedings or to adjudicate Tenant or Guarantor a bankrupt _or
insolvent, or seeking reorganization, arrangement, adjustment, liquidation, dissolution or
composition of it or' its debts under any law relating to bankruptcy, insolvency,
reorganization or relaef of debtors, or seeking appointment of a receiver, trustee,
custodian or other sirriilar official for it or for all or any substantial part of its property,
and such case, procee,~ing or other action results in the entry of an order for relief or is
not dismissed within ?30 days of the filing thereof, or if Tenant or Guarantor becomes
insolvent or is genera~ly not paying or admits in writing its inability to pay its debts as
they mature, or makes an assignment for the- benefit of creditors or petitions for or enters
into an arrangement with its creditors or a custodian is appointed or takes possession of
Tenant's or Guarantor's property (whether or not a judicial proceeding is instituted in
16
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June 9, 2006
connection with such arrangement or in connection with the appointment of such
custodian}, or if Tenant or Guarantor shall take any action to authorize or in
contemplation of any of the events set forth above (each of the foregoing events to be
hereinafter referred to as an "Act of Bankruptcy"), then, in addition to Landlord's other
rights and remedies under this Lease and applicable law, this Lease shall, at Landlord's
option (and. if permitted by law), be terminated, in which event neither Tenant nor
Guarantor, nor any person claiming through or under Tenant or Guarantor or by virtue of
any statute or of an order of any court, shall be entitled to possession of the Premises, and
,,:
Landlord, in.addition to the other rights and remedies given by this Lease, or by virtue of
any statute or rule of ~~w, may retain as liquidated damages any rent, Security Deposit or
moneys received by ]~andlorci from Tenant or others in behalf of Tenant. All rent,
additional rent and other charges payable by Tenant under this Lease shall constitute rent
for the purpose of applying the provisions of Section 502(b)(7} of the Federal Bankruptcy
Code.
~~
In the event an act of bankruptcy shall occur and this Lease is not terminated pursuant to
the provisions of Paragraph A, the parties agree that:
A. If there shall be a default in the payment of Annual Minimum Rent or any
additional rent, or a default in the observance or performance of any other
provision of this Lease. binding on Tenant, Landlord shall be entitled to
immediately discontinue furnishing any utilities and other services it has been
providing to the Premises, until such time as such defaults have been fully cured,
it being agreed that the foregoing action by Landlord shall in no way cause or
result in any abatement of Annual Minimum Rent or any other charge payable by
Tenant during the continuance of the term of this Lease.
4i`
4
B. If the Lease is i'~ssumed by a trustee in bankruptcy, and assigned by the trustee to a
third party, they such party shall (a) execute and deliver to Landlord an agreement
in recordable form whereby such party confirms that it has assumed and agrees
with Landlord to discharge all obligations binding on Tenant-under this Lease, (b)
represent and warrant in writing to Landlord that such party has a net worth and
operating experience at least comparable to that possessed by Tenant named
herein and Guarantor as of the execution of this Lease, (c) deposit with Landlord a
Security Deposit and advance rent equal to that initially deposited by Tenant
named herein, Viand (d} grant Landlord, to secure the performance of such party's
obligations under this Lease, a security interest in such party's merchandise,
inventory, personal property, fixtures, furnishings, and all accounts receivable
(and in the proceeds of all of the foregoing) with respect to its operations in the
Leased Premises, and in connection therewith, such party shall execute such
security agreements, financing statements and other documents (the forms of
which are to be designated by Landlord) as are necessary to perfect such lien.
;,.
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June 9, 2006
C
~.
Any person or entity to which this Lease is assigned pursuant to the provisions of
the Bankruptcy Code, 11 U.S.C. Section 101, et s~ (the "Bankruptcy Code")
shall be deemed without further act or deed to have assumed all of the obligations
arising under this Lease on and after the date of such assignment. If this Lease. is
assigned to any person or .entity pursuant to the provisions of the Bankruptcy
Code, any an~ all monies or other considerations payable or otherwise to be
delivered in connection with such assignment shall be paid or delivered to
Bankrupt, shall be and remain the exclusive property of Bankrupt and shall not
constitute property of Tenant or of the estate of Tenant within the meaning of the
Bankruptcy Code. Any and all monies or other considerations constituting
Landlord's property under the preceding sentence not paid or delivered to
Landlord shall be held in trust for the benefit of Landlord and be promptly paid or
delivered to Landlord.
23. CONDITION OF PREMISES. It is agreed that, by occupying the Premises, Tenant
acknowledges that it; has had full opportunity to examine the Building, including
Premises, and is fuT;iy informed, independently of Landlord, as to the character,
construction and structure of the Building and land within the Premises. It is agreed- that
4~
by occupying the Prei~uses the Tenant formally accepts the same and acknowledges that
Landlord has complieRi with all requirements imposed upon it under the terms of this
Lease. ?
y.
24. HAZARDOUS WASTE.
A. Tenant hereby' covenants, represents and warrants that it shall not generate,
transport, handle, store or otherwise encounter in, on or about the Premises, any
hazardous waste or substance (for purposes of this Section herein called
"hazardous waste") as defined by the applicable federal, state or local
environmental or occupational standards, including but not limited to material
defined as such in, or for purposes of, the Comprehensive Environmental
Response, Compensation and. Liability Act of 1980 ("CERCLA"), as amended by
the Superfund :Hazardous Materials Transportation Act (49 U.S.C. § 1802 et seq.),
the Resource Conservation and Recovery Act ("RCRA") (42 U.S.C. § 1802, et
seg.), the Federal Water Pollution Control Act (33 U.S.C. § 1251, et seg.), the Safe
Drinking Water Act (42 U.S.C. §300(f), et sue.), the Toxic Substance Control Act
(15 U.S.C. §2601, et sec,.), the Clean Air Act (42 U.S.C §7401, et s~ce ,.), or any
other federal, ;state or local statute, ordinance, code, rule, regulation, order or
decree regulating, relating to or imposing liability or standards of conduct
concerning ar%y hazardous, toxic or dangerous waste, substance, element or
material as no~v or at any time hereafter in effect or amended (for purposes of this
Section herein collectively called the. "Laws"). Tenant further covenants,
represents and warrants that there will- be no underground storage tanks in, on,
under, within car about the Premises.
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June 9, 2006
B. Tenant shall not use, store or permit to .be stored on the Leased Premises any
asbestos in any form, urea formaldehyde foam insulation, transformers or other
equipment which contains, dielectric fluid or other fluids containing levels of
polychlorinated biphenyls in excess of fifty (50) parts per million:
C. Tenant covenants, represents and warrants that it will indemnify .and hold
Landlord harm~,ess from and against any and all liability, actions, claims, losses,
damages and expenses .arising out of, or in any way relating to, a breach of the
representations'? warranties, covenants and agreements set forth in this Section,
including: (a)claims of third parties (including governmental agencies) for
damages, including personal injury or property damages, penalties, response costs,
injunctive or other relief; (b) costs or removal and restoration, including fees of
attorneys and experts, costs of reporting to any governmental agency the existence
of hazardous substances, hazardous waste, pollutants and/or contaminants and
costs of preparing or causing to be prepared any and all studies, tests, analyses or
reports in connection with any environmental matter; (c) all expenses or
obligations, including attorneys' fees, incurred at, before and after any trial or
appeal therefrom whether or not taxable as costs, including attorneys' fees, witness
fees, deposition costs and other expenses; (d) all other costs, expenses and
liabilities arising from Tenant's violation . of the laws or any other environmental
regulation now in force or hereafter enacted; and (e) Tenant's disposal of medical
waste as set forth in Paragraph A above. The obligations of Tenant as contained
in this Section shall survive the termination of the Lease.
25. LANDLORD'S TITL:~E. Tenant recognizes and agrees that Landlord's title is and always
will be paramount to tie title of Tenant and under no circumstances shall Tenant do or be
empowered to do any dct which can, shall or may encumber Landlord's title or subject the
Premises or Building ~r any part of either to any lien or encumbrance.
26. HOLDING OVER. ~ for any reason Tenant retains possession of the Premises or any
part thereof after the termination of the term of .this Lease or any extension of the term,
.unless other written arrangements are made with Landlord, such holding over shall
constitute a tenancy from month-to-month and Tenant shall pay Landlord monthly rental
during the month-to-month tenancy computed at double the rate of rent payable hereunder
for the final month of the last year of the term prior to such holding over.
27. NO ACCORD AND SATISFACTION. No payment by Tenant or receipt by Landlord
of a lesser amount than the monthly rent and other charges, nor shall any endorsement or
statement on any check or on any letter accompanying any .check be deemed an accord
and satisfaction.
28. SUCCESSORS AND! ASSIGNS. This Agreement shall be binding upon and inure to
the respective partiesherein, their heirs, executors, administrators, devisees, successor
and permitted assignswhomever. Any reference to Tenant he rein shall, for the purposes
i{'
F. '
} 19
~~
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June 9, 2006 '
,~:
a.
of determining liability for property damage and the like, be deemed to include. Tenant,
his or its agents, of,~cers, employees, servants, partners, independent contractors,
licensees, invitees or visitors whomever.
29. RESERVATIONS BY LANDLORD. In addition to other rights conferred by this
Agreement or by law, the Landlord reserves the right, to be exercised in Landlord's sole
discretion, to: (a) take all measures as may be necessary or desirable for the safety,
protection of the Premises or of the Building; (b) sell or mortgage the Building; (c) repair,
alter, add to, improve, :build additional stories on, or build adjacent to said building; (d)
run necessary pipes, conduits and ducts through the Premises; and (e) carry on any work,
repairs, alterations or ~ improvements in, on, or about the Building or in the vicinity
thereof. Tenant hereby waives any claim to damage or inconvenience causes by such
work. This paragraph shall not be construed to diminish the obligations of Tenant with
respect to repairs or improvements or other obligations of Tenant provided herein, nor
shall it be construed to create or increase any obligation on the part of Landlord with
respect to repairs or improvements.
a'.
30. ESTOPPEL CERTIFICATE. At any time, and form time to time, the parties agree
that within ten (10) days following request in writing from the other party, to execute,
acknowledge and deliver to the requesting party a statement in writing certifying that this
Lease is unmodified and in full force and effect (or if there have been modifications that
the same is full force and effect as modified and stating the modification), the dates to
which the rent and other charges have been paid, and any other financial data relating to
this Lease or the Leased Premises which such party may reasonably request:
31. FORCE MAJEURE. In the event either party hereto shall be delayed or hindered in or
prevented from the performance of any act required under this Lease by reason of strikes,
lockouts, labor troubles, inability to procure materials, failure of power, restrictive
governmental law or regulations, riots, insurrection, war or other reason of a like nature
not the fault of the party delayed in performing work or doing acts required under the
terms of this Lease, then performance of any such act shall be extended for a period
equivalent to the period of such delay. The provisions ofthis Section shall not (a) operate
to excuse Tenant from prompt payment of Annual Minimum Rent or any other payment
required by the terms'.Kof this Lease, and (b) be applicable to delays resulting from the
inability of a party to ~~btain financing or to proceed with its obligations under this Lease
because of a lack of funds.
r.
}
32. ARBITRATION/WA;IVER OF JURY TRIAL. Any disagreement between Landlord
and Tenant with respect to the interpretation or application of this Lease, or the obligation
of the parties hereunder, shall be determined by arbitration unless the parties otherwise
mutually agree in writing. Landlord and Tenant shall agree upon one arbitrator, otherwise
there shall be three (3~; one named in writing by the Landlord and one named in writing
by the Tenant within ten (10) days after notice of arbitration is served by either upon the
other, and a third arbitrator selected by those two arbitrators within ten (10) days
20
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June 9, 2006
thereafter. No one shall serve as an arbitrator who is in any way financially interested in
this Lease or in the affairs of either party hereto. This agreement to arbitrate shall be
specifically enforceable under the prevailing arbitration laws. The arbitrator or arbitrators
shall have the power tQ award to either party to the dispute such sums, costs, expenses,
and attorney's fees as ~.ie arbitrator or arbitrators may deem proper. The award rendered
by the arbitrator or arbitrators shall be appealable to a court of competent jurisdiction
within thirty (30) days Hof notice of the arbitrators' award. Such appeal shall be prosecuted
without delay and as rabidly as possible.
~:
33. GUARANTY. At the. time of executing this Lease, Tenant shall provided to Landlord a
signed Guaranty of Lease including the signature of the spouse, if any, in form and
substance as set forth in Exhibit B hereto. Each Guarantor shall provide Landlord with an
annual financial statement upon request.
34. BUSINESS INTERRUPTION. Tenant acknowledges that the nature of Tenant's
business involves government contracting work to which . Tenant relies on such
contracting work as a substantial source of Tenant's business income. Said contracting
work requires that certain qualifications. and terms be met by Tenant in order to obtain
and keep said work. In light of this fact, Tenant agrees to provide Landlord written notice
within fifteen (15) days of any substantial decrease in Tenant's government contracting
work or the change or termination of Tenant's qualifications to the extent that said change
or termination will result in loss of said contracting business to Tenant.
35. NON-WAIVER. Thy failure of the Landlord to seek redress for violation of, or to insist
upon the strict performance of, any covenant or condition of the Lease, shall not prevent a
subsequent act, which;:would have originally constituted aviolation, -from having all the
force and effect of an original violation. The receipt by Landlord of rent with knowledge
of the breach of any covenant of this Lease shall not be deemed a waiver of such breach.
36. SHORT FORM LEASE. Tenant agrees that, upon the written request of Landlord,
Tenant will, at any time, join in the execution of a Memorandum of Lease in proper form
for recording or filing yin the appropriate office of the County of Cumberland setting forth
the existence and term of this Lease; and Tenant shall take such action as may be
necessary to permit such recording or filing.
37. MISCELLANEOUS .PROVISIONS. No act or thing done or omitted to be done by
Landlord or Landlord's agents during the term of the Lease, which is necessary to enforce
the terms of this Lease shall constitute an eviction by Landlord nor shall it be deemed an
acceptance or surrender of said Premises, and no agreement to accept such surrender shall
be valid unless in writing signed by Landlord. No employee of Landlord or Landlord's
agent shall have any power. to accept the keys of said Premises prior to the termination of
the Lease. The delivery of keys to any employee of Landlord or Landlord's agent shall
not operate as a termination of the Lease or a surrender of the Premises.
~:.
21
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• shcldlb\rsrlbrandy\calabrese.lease ~=
June 9, 2006
Tenant represents and:: warrants to Landlord that Tenant has not incurred and will not
incur any liability for brokerage fees, finder's fees, agents commissions or similar
compensation to third parties in connection with this lease transaction. In the event
Tenant has incurred any such fees, commissions or compensation, said fees, commissions
and compensations incurred shall be charges solely against Tenant. Tenant agrees to
indemnify Landlord against and hold Landlord harmless from any and all liabilities
arising from any claims for such fee; commissions or compensation, including, without
limitations the cost of counsel fees in connection therewith.
The words "Landlord" and "Tenant",. wherever used in this Lease, shall be construed to
mean Landlords and Tenants in all cases where there is more than one landlord or tenant,
and the necessary grammatical changes required to make the provisions hereof apply
either to corporations ;.or individuals, men or women, shall in all cases be assumed as
though in each case fully expressed.
The invalidity or unennforceability of any provision hereof shall not affect or impair any
other provision. Where Tenant hereunder- consists of more than one party, the obligations
of each such party will'be joint and several hereunder.
Provisions inserted herein or affixed hereto shall not be valid unless appearing in the
duplicate original hereof held by the Landlord. In the event of variation or discrepancy,
the Landlord's duplicate shall control.
The headings of the several articles, paragraphs and sections contained herein are for
convenience .only and do not define, limit or construe 'the contents of such articles,
paragraphs and sections. All negotiations, considerations, representations and
understandings between the parties are incorporated herein and are superseded hereby,
and the provisions hereof may be modified or altered only by agreement in writing
between the parties,. There are no terms, obligations, covenants, statements,
representations, warranties or conditions relating to the subject matters hereof other than
those specifically contained herein. This Lease may not be amended or modified by any
act or conduct of the parties or by oral agreements unless reduced and agreed to in writing
signed by both Landlord and Tenant. No waiver of any of the terms of this Lease by
Landlord shall be binding on Landlord unless reduced to writing and signed by Landlord.
Nothing contained in his Lease shall be construed to be or to create a partnership or joint
venture between the parties hereto.
This Lease shall be .;governed by and enforced in accordance with the laws of the
Commonwealth of Peruisylvania.
This Lease represents the entire understanding and agreement of the parties and the terms
and provisions of this Lease shall only be modified or amended in writing signed by all
parties hereto.
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June 9, 2006
IN WITNESS WHEREOF, the parties intending to be legally bound have set their
hands and seals the day and year first above written.
M.
WITNESS: LANDLORD:
BRANDY INVESTOR, L.P.
~.
By:. Bra y Mechanicsburg, LLC
~ G~e~ier~-Parer
By:
William F. othm n, Managing Member
ATTEST:
TENANT:
CALABRESE & SONS, INC.
J
,f /~
By; _/~Lr t
,President
23
+ ~ ~ '.
EXHIBIT A
ALL~THAT CERTAIN piece or parcel of land, situate, lying and being in Mechanicsburg
Borough, Cumberland County shown as New Lot 2 on the Calabrese & Sons, Inc.
Preliminary/Final Subdivision/Lot Consolidation Plan Recorded Apri13, 2006 in the Cumberland
County.Recorder ofDeeds Office in Plan Book 92 Page 44 to wit:
BEGINNING at a point ~on the southern side of Brandy Lane at a 5/8 inch rebar with cap
thence South 27 degrees 04 minutes 00 seconds East a distance of 376.89 feet to a point thence
North 37 degrees 14 minutes 52 seconds East a distance of 509.19 feet to a point thence North 37
degrees OS minutes Ol seconds East. a distance of 66.58 feet to a point thence South 42 degrees
OS minutes 07 seconds East a distance of 179.93 feet to a point thence South 24 degrees 27
minutes 41 seconds East a dist~ce of 490.52 feet to a point thence South 65 degrees 27 minutes
00 seconds West a distance of 593.70 feet to a point thence North 27 degrees 04 minutes 00
seconds West a distance of 744:.09 feet to a point thence North 40 degrees 20 minutes 30 seconds
East a distance of 54.16 feet to a point and place of BEGINNING.
she\dib\rsrlbrandy\calabrese.lease
June 9, 2006
EXHIBIT B
PERSONAL GUARANTY OF LEASE
In consideration of the making of the above Lease, dated June 9, 2006, by the Tenant with
the Landlord at the request of the undersigned, and in reliance of this Guaranty, the undersigned
hereby unconditionally and irrevocably guarantees the payment of the rent to be paid by the
Tenant and the performance b~ the Tenant of all the terms, conditions, covenants and agreements
of the Lease, and the undersigned promises to pay all the Landlord's expenses, including
reasonable attorney's fees, incurred by the Landlord in enforcing this Guaranty. The Landlord's
consent to any assignment or assignments, and successive assignments by the Tenant and
Tenant's assigns, of this. Lease, made either with or without notice to the undersigned, or a
changed or different use of the demised premises, or Landlord's forbearance delays, extensions of
time or any other reason whether similar to 'or different from the foregoing, shall in no way or
manner release the undersigned from liability as Guarantor. Where the undersigned include more
than one party, the obligation of each such party hereunder will be joint and several. It will not
be necessary for Landlord to proceed first against Tenant in invoking any of Landlord's lease
remedies before proceeding to enforce this Guaranty of Lease.
WITNESS the hand and seal of the undersigned at the date of the above Lease.
GUARANTOR:
o eph Ealabrese
25
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REAGER & ADLER, P.C.
BY:JOHN H. PIETRZAK, ESQUIRE
Attorney I.D. No. 79538
Email: ~ietrzak~a,ReagerAdlerPC.com
BY: THOMAS O. WILLIAMS, ESQUIRE
Attorney I.D. No. 67987
Email: Twilliams~a ReagerAdlerPC.com
2331 Market Street
Camp Hill, PA 17011
Telephone: (717) 763-1383
Facsimile: (717) 730-7366
Attorneys for Brandy Investors, LP
BRANDY INVESTORS, LP,
Plaintiff
v.
IN THE COURT OF COMMON PLEAS,
CUMBERLAND COUNTY, PENNSYLVANIA
CIVIL ACTION
CALABRESE & SONS, INC. and, NO. d ~' -. y 7oZ ~ ~v ` ~-
JOSEPH CALABRESE,
Defendants :CONFESSION OF JUDGMENT
NOTICE
Pursuant to Rule 236 of the Supreme Court of Pennsylvania, you are hereby notified that
a JUDGMENT BY CONFESSION has been entered against you in the above proceeding and
that enclosed herewith is a copy of all of the documents filed in support of said judgment. If you
have any questions concerning this notice, please call John J. Pietrzak at (717) 763-1383.
r thonotary ~~
SHERIFF'S RETURN - REGULAR
,.`CASE NO: 2007-04722 P
COMMONWEALTH OF PENNSYLVANIA:
COUNTY OF CUMBERLAND
BRANDY INVESTORS LP
VS
CALABRESE & SONS INC ET AL
MARK CONKLIN
Sheriff or Deputy Sheriff of
Cumberland County,Pennsylvania, who being duly sworn according to law,
says, the within COMPLAINT IN CONFESSION was served upon
CALABRESE & SONS INC the
DEFENDANT
at 1615:00 HOURS, on the 13th day of August 2007
at 406 BRANDY LANE
MECHANICSBURG, PA 17055
JOSEPH CALABRESE, OWNER
by handing to
a true and attested copy of COMPLAINT IN CONFESSION
OF JUDGMENT, RULE 236 NOTICE,
ENTRY OF APPEARANCE
together with
and at the same time directing His attention to the contents thereof.
Sheriff's Costs:
Docketing 18.00
Service 10.56
Affidavit .00
Surcharge 10.00
.00
gJaa~n? ~ 38.56
Sworn and Subscibed to
before me this _ day
So Answers:
R. Thomas Kline
08/14/2007
REAGER & ADLER
By:
Deputy Sheriff
of A.D.
SHERIFF'S RETURN - REGULAR
,.'CASE NO: 2007-04722 P
COMMONWEALTH OF PENNSYLVANIA:
COUNTY OF CUMBERLAND
BRANDY INVESTORS LP
VS
CALABRESE & SONS INC ET AL
MARK CONKLIN
Sheriff or Deputy Sheriff of
Cumberland County,Pennsylvania, who being duly sworn according to law,
says, the within COMPLAINT IN CONFESSION was served upon
CALABRESE JOSEPH the
DEFENDANT
at 1615:00 HOURS, on the 13th day of August 2007
at 406 BRANDY LANE
MECHANICSBURG, PA 17055
JOSEPH CALABRESE
by handing to
a true and attested copy of COMPLAINT IN CONFESSION
OF JUDGMENT, RULE 236 NOTICE
ENTRY OF APPEARANCE
together with
and at the same time directing His attention to the contents thereof.
Sheriff's Costs:
Docketing 6.00
Service .00
Affidavit .00
Surcharge 10.00
.00
~~a~ ~b7 ~^ / 16.00
Sworn and Subscibed to
before me this day
So Answers:
R. Thomas Kline
08/14/2007
REAGER & ADLER
By.
De uty Sheriff
of A.D.
~; 0;,~4-20pT 04:50P1~ FROIA-Gin~rich,Smith,Klin~snc~aith,i Dolan
BRANDY INVESTORS, I,1',
Piairriff
vs.
CALAl3RESE & SONS, Ir1C. and.
JOSEPH CAJrAB~LESE, ..
Def~x-dants
T1T36T321li T-438 P.002/002 F-41T
IN THE COURT.OF CO~+lMON PLEAS
OF C[JbIBF.ItLAND COUNTY,
PENNSYLVANIA
No. 4722 CIVII, 2007
CxVIL ACTION - X.AW
JUDGMENT RELEASE
In relation to the ab~ ve referenced Judgment, for value received, the undersigned, with the
Iegal authority to do so, herby releases from the lien, eft and operation of the above judgment:
Ai,L THAT CERT.~.~T tract of land known as Lot No. 1, Brandy Lane, partly:n. the
Township of Hampden and partly in the $orough of Mechanicsburg, Cvuxxty of Cumberland axxd
Commonwealth ofPeansy.~-arua, known as Tax Parcel No. 10-22-0521-015. Provided,
however, that nothing herei~i contained shall affect such Judgment or the lien thereof or-its legal
validity upon or against and; other property of Defendants or either of them in Cumberland County,
Pennsylvania or elsewhere.
'This Judgnamt Reie:cise is being executedpursuant to an Order ofthe Court of Conunon Pleas
ofCutzxberland County, Peralsylvania, dated August 28, 2007.
witness my hand ar.d seal this ~~ day of B/Y~'2007.
BRANDY INVESTORS, LP
/~
ohn H. Pietrzak, Esq.
Reager & Adler, P.C.
Attorneys for Brandy Investors, LP
(717) 763-1383
.' ~.
ALL T~iAT CERTAIN tract of laud with improvcnsents thereon erected situate
partly in Hampden Township and partly in the Borough of Mechanicsburg,
Cumberland County, Pennsylvania, bounded and described according to the
Calabrese & Sons, Inc., Preliminary/Final Subdivision/Lot Consolidation Plan
prepared by Penn Terra Engineering, Inc., dated November 16, 20Q5, and recorded
in Cumbcrlat-d County, Pennsylvania Plan Book,92, Page 44, as follows:
BEGINNING at as iron pin found onthededicatedright-of--way line of Brandy Lane
(SO' row) at the northwestern corner of land now or formerly of Mary Frances &
Floyd E. Weaver, thence along said Land of Weaver and Land now or fotxnerly of
William L, Jr. And bcborah S. Shipman, South 50 degrees 34 minutes 52 seconds
East 244.48 feet to an iron pin found; thence along said land of Shipman, an
unapencd street, and laud now or formerly of Stephen F. & Laura E. Sinkonis, North
38 degrees 35 minutes 08 seconds East 435.00 feetto a~nironpin found; thence alo~ag
. an uaopcaed street, land now or formerly of Roy E. & Carol P. Mason, Bay Street
(private), and land now or formerly of Jeffrey T. & Loaaime R. Flemimg, North 38
degrees, 40 minutes 48 seconds East 332.11 feet to a ~/:" pipe found; thence along
land now or formerly of the United States of .America, South 31 degrees 45 minutes
O1 second East 1,080.42 feet to a 1"pipe filled with concrete; thence along same,
South 65 degrees 41 minutes 40 seconds West 658.31 feet to an iron pin found;
thence along Ncw Lot 2 as set forth ontheabove-zefereaced Plan the following three
courses and distances: (1) North 24 degrees 27 minutes 41 seconds West 490.52 feet
to an iron pia found; (2) North 42 degrees OS minutes 07 seconds West 179.93 feet
to an imnpin found; and (3) South 37 degrees OS minutes Ol second West 66.58 feet
to an iron pin found; thence along laced now or formerly of Michael S. Nailor, North
50 degrees 34 minutes 52 s®conds West 325.26 feet to an iron pin found; thence
along said Brandy Lace, North 38 degrees 53 minutes 34 seconds East 55.03 feet to
an iron pin found, the point and place of Beginning.
BF.JrTGNew Lot 1 onthe Calabrese 8c Sons,Inc.,PreliminarylFix~al SubdivisionlLot
Consolidation Plan containing 14.953 acres.
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BRANDY INVESTORS, LP,
Plaintiff
v.
CALABRESE & SONS, INC. and,
JOSEPH CALABRESE,
Defendants
IN THE COURT OF COMMON PLEAS,
CUMBERLAND COUNTY, PENNSYLVANIA
CIVIL ACTION
NO. 07-4722
CONFESSION OF JUDGMENTI
NOTICE UNDER RULE 2958.1 OF JUDGMENT AND EXECUTION~I THEREON
NOTICE OF DEFENDANTS' RIGHTS ~I
TO: Joseph Calabrese
A judgment in the amount of $74,955.14 has been entered against you and in fa~6or of the
Plaintiff without any prior notice or hearing based on a confession of judgment contained in a
written agreement or other paper already signed by you. The Sheriff may take your money or
other property to pay the judgment at any time after thirty (30) days after the date on which this
notice is served on you.
You may have legal rights to defeat the judgment or to prevent your money or property from
being taken. ~,
YOU MUST FILE A PETITION SEEKING RELIEF FROM THE 3UDGMENTI AND
PRESENT IT TO A JUDGE WITHIN THIRTY (30) DAYS AFTER THE DAT~ ON WHICH
THIS NOTICE IS SERVED ON YOU OR YOU MAY LOSE YOUR RIGHTS. ~~
YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YO~J DO NOT
HAVE A LAWYER OR CANNOT AFFORD ONE, GO TO OR TELEPHONE1THE OFFICE
SET FORTH BELOW TO FIND OUT WHERE YOU CAN GET LEGAL HELD.
Lawyer Referral Service
Cumberland County Courthouse, 4~' Floor
Carlisle, PA 17013 ~~
(717) 240-6200
Date: October 17, 2007
Joh~'/H. Pietrzak, Esquire
REAGER & ADLER, P.C.
2331 Market Street
Camp Hill, PA 17011
(717) 763-1383
Attorneys for Plaintiff, Bra
Investors, LP
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BRANDY INVESTORS, LP, IN THE COURT OF COMMO PLEAS,
Plaintiff :CUMBERLAND COUNTY, P NNSYLVANIA
~,
v. :CIVIL ACTION
CALABRESE & SONS, INC. and, NO. 07-4722 ~~
JOSEPH CALABRESE, ~'
Defendants :CONFESSION OF JUDGMENT
~,
NOTICE UNDER RULE 2958.1 OF JUDGMENT AND EXECUTIONI THEREON
NOTICE OF DEFENDANTS' RIGHTS
TO: Calabrese & Sons, Inc.
A judgment in the amount of $74,955.14 has been entered against you and in favor of the
Plaintiff without any prior notice or hearing based on a confession of judgment contained in a
written agreement or other paper already signed by you. The Sheriff may take y~ur money or
other property to pay the judgment at any time after thirty (30) days after the dat~ on which this
notice is served on you.
You may have legal rights to defeat the judgment or to prevent your money or property from
being taken.
YOU MUST FILE A PETITION SEEKING RELIEF FROM THE JUDGMEN'11 AND
PRESENT IT TO A JUDGE WITHIN THIRTY (30) DAYS AFTER THE DAT~ ON WHICH
THIS NOTICE IS SERVED ON YOU OR YOU MAY LOSE YOUR RIGHTS.
YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YO~ DO NOT
HAVE A LAWYER OR CANNOT AFFORD ONE, GO TO OR TELEPHONE HE OFFICE
SET FORTH BELOW TO FIND OUT WHERE YOU CAN GET LEGAL HELD.
Lawyer Referral Service ~,
Cumberland County Courthouse, 4`t' Floor
Carlisle, PA 17013
(717)240-6200
Date: October 17, 2007
J~In H. Pietrzak, Esquire
REAGER & ADLER, P.C.
2331 Market Street
Camp Hill, PA 17011
(717)763-1383
Attorneys for Plaintiff, Bran y Investors, LP
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REAGER &ADLER, P.C.
BY:JOHN H. PIETRZAK, ESQUIRE
Attorney I.D. No. 79538
Email: Jpietrzak(cr~ReagerAdlerPC.com
BY: THOMAS O. WILLIAMS, ESQUIRE
Attorney I.D. No. 67987
Email: TwilliamsnRea€>,erAdlerPC.com
2331 Market Street
Camp Hill, PA 17011
Telephone: (717) 763-1383
Facsimile: (717) 730-7366
Attorneys for Brandy Investors, LP
BRANDY INVESTORS, LP,
Plaintiff
v.
CALABRESE & SONS, INC. and,
JOSEPH CALABRESE,
Defendants
III
IN THE COURT OF COMMO PLEAS,
CUMBERLAND COUNTY, PE SYLVANIA
CIVIL ACTION
N0.07-4722 '.
CONFESSION OF JUDGMENT',
JUDGMENT
~I
TO: Joseph Calabrese
Pursuant to 42 Pa.C.S.A. 2737.1, you are hereby notified that a debtor who has lbeen incorrectly
identified and had a confession of judgment entered against him shall be entitled to costs and
reasonable attorney fees as determined by the court. ~',
Pursuant to 42 Pa.C.S.A. § 2737.1, you are hereby notified of the instructions re arding the
procedure to follow to strike off or open a confessed judgment under Pennsylva is Rule of Civil
Procedure 2959, which is reproduced in full, on the following page.
~I
REAGER &ADLER, P.C. ~I
Date: October 17, 2007
Jo~i H. Pietrzak, Esquire
2331 Market Street
Camp Hill, PA 17011
(717)763-1383
~ -ti
PENNSYLVANIA RULE OF CIVIL PROCEDURE
(a)(1) Relief from a judgment by confession shall be sought by petitio .Except as
provided in subparagraph (2), all grounds for relief whether to strike off the jud ment or to open
it must be asserted in a single petition. The petition may be filed in the county n which the
judgment was originally entered, in any county to which the judgment has been transferred or in
any other county in which the sheriff has received a writ of execution directed t{~ the sheriff to
enforce the judgment. ~I
2 The ground that the waiver of the due process rights of notice and hearing was not
O
voluntary, intelligent and knowing shall be raised only '
(i) in support of a further request for a stay of execution wh~re the court has
not stayed execution despite the timely filing of a petitio for relief from
the judgment and the presentation of prima facie evidenc~ of a defense;
and ~,
(ii) as provided by Rule 2958.3 or Rule 2973.3. II
(3) If a written notice is served upon the petitioner pursuant to Rule ~959.1(c)(2) or
Rule 2973.1(c), then petition shall be filed within thirty days after such service. I Unless the
defendant can demonstrate that there were compelling reasons for the delay, a p~tition not timely
filed shall be denied.
(b) If the petition states prima facie grounds for relief, the court shah issue a rule to
show cause and may grant a stay of proceedings. After being served with a cop of the petition
the plaintiff shall file an answer on or before the return day of the rule. The return day of the rule
shall be fixed by the court by local rule or special order. ~~,
(c) A party waives all defenses and objections which are not included in the petition
or answer.
(d) The petition and the rule to show cause and the answer shall be s~rved as provided
in Rule 440. ~~
(e} the court shall dispose of the rule on petition and answer, and on any testimony,
depositions, admissions and other evidence. The court for cause shown may sta proceedings on
the petition insofar as it seeks to open the judgment pending disposition of the a plication to
strike off the judgment. If evidence is produced which in a jury trial would req ire the issues to
be submitted to the jury, the court shall open the judgment. Iii
(f) The lien of the judgment of or any levy or attachment shall be pr~served while the
proceedings to strike off or open the judgment are pending.
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REAGER &ADLER, P.C.
BY:JOHN H. PIETRZAK, ESQUIRE
Attorney LD. No. 79538
Email: ~ietrzak~Rea~erAdlerPC.com
BY: THOMAS O. WILLIAMS, ESQUIRE
Attorney I.D. No. 67987
Email: Twilliams(a~Rea~erAdlerPC.com
2331 Market Street
Camp Hill, PA 17011
Telephone: (717) 763-1383
Facsimile: (717) 730-7366
Attorneys for Brandy Investors, LP
BRANDY INVESTORS, LP,
Plaintiff
v.
CALABRESE & SONS, INC. and,
JOSEPH CALABRESE,
Defendants
IN THE COURT OF COMM01~7 PLEAS,
CUMBERLAND COUNTY, PEINNSYLVANIA
CIVIL ACTION ~I',
NO. 07-4722
'.
CONFESSION OF JUDGMENT',
JUDGMENT
TO: Calabrese & Sons, Inc.
Pursuant to 42 Pa.C.S.A. 2737.1, you are hereby notified that a debtor who has een incorrectly
identified and had a confession of judgment entered against him shall be entitle to costs and
reasonable attorney fees as determined by the court.
~I
Pursuant to 42 Pa.C.S.A. § 2737.1, you are hereby notified of the instructions re arding the
procedure to follow to strike off or open a confessed judgment under Pennsylva is Rule of Civil
Procedure 2959, which is reproduced in full, on the following page. !,
REAGER &ADLER, P.C. I~
I
Date: October 17, 2007
J~Iin H. Pietrzak, Es(~
2331 Market Street
Camp Hill, PA 17011
(717) 763-1383
r~
PENNSYLVANIA RULE OF CIVIL PROCEDURE
G
AND
(a)(1) Relief from a judgment by confession shall be sought by petitio .Except as
provided in subparagraph (2), all grounds for relief whether to strike off the jud ment or to open
it must be asserted in a single petition. The petition may be filed in the county n which the
judgment was originally entered, in any county to which the judgment has been transferred or in
any other county in which the sheriff has received a writ of execution directed t the sheriff to
enforce the judgment.
(2) The ground that the waiver of the due process rights of notice ar~d hearing was not
voluntary, intelligent and knowing shall be raised only ~,
(i) in support of a further request for a stay of execution wh~re the court has
not stayed execution despite the timely filing of a petitio for relief from
the judgment and the presentation of prima facie evidencee of a defense;
and ~
ii as rovided b Rule 2958.3 or Rule 2973.3. IIII
O p Y
~i
(3) If a written notice is served upon the petitioner pursuant to Rule ~959.1(c)(2) or
Rule 2973.1(c), then petition shall be filed within thirty days after such service. I Unless the
defendant can demonstrate that there were compelling reasons for the delay, a p~tition not timely
filed shall be denied. ~,
(b) If the petition states prima facie grounds for relief, the court shali11 issue a rule to
t
show cause and may grant a stay of proceedings. After being served with a cop of the petition
the plaintiff shall file an answer on or before the return day of the rule. The ret rn day of the rule
shall be fixed by the court by local rule or special order. ~,
(c) A party waives all defenses and objections which are not includell in the petition
or answer. !~
(d) The petition and the rule to show cause and the answer shall be seerved as provided
m Rule 440.
(e) the court shall dispose of the rule on petition and answer, and on any testimony,
depositions, admissions and other evidence. The court for cause shown may sta proceedings on
the petition insofar as it seeks to open the judgment pending disposition of the a plication to
strike off the judgment. If evidence is produced which in a jury trial would req ire the issues to
be submitted to the jury, the court shall open the judgment.
(f) The lien of the judgment of or any levy or attachment shall be pr~served while the
proceedings to strike off or open the judgment are pending.
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SHERIFF'S RETURN - REGULAR
'iCASE N0: 2007-04722 P
COMMONWEALTH OF PENNSYLVANIA:
COUNTY OF CUMBERLAND
BRANDY INVESTORS LP
VS
CALABRESE & SONS INC ET AL
SHARON LANTZ Sheriff or Deputy Sheriff of
Cumberland County,Pennsylvania, who being duly sworn according to law,
says, the within NOTICE-2958.1&2737.1 was served upon
CALABRESE & SONS INC the
DEFENDANT at 0945:00 HOURS, on the 22nd day of October
at 406 BRANDY LANE
MECHANICSBURG, PA 17055 by handing to
JOSEPH CALABRESE ADULT IN CHARGE
a true and attested copy of NOTICE-2958.1&2737.1 together with
and at the same time directing His attention to the contents thereof.
Sheriff's Costs:
Docketing 18.00
Service 10.56
Affidavit .00
Surcharge 10.00
n_
fG~~bf U 7 .00
/
`~ 38.56
Sworn and Subscibed to
before me this day
of ,
So Answers:
R. Thomas Kline
10/23/2007
REAGER - -----
B
A.D
2007
SHERIFF'S RETURN - REGULAR
'`CASE N0: 2007-04722 P
COMMONWEALTH OF PENNSYLVANIA:
COUNTY OF CUMBERLAND
BRANDY INVESTORS LP
VS
CALABRESE & SONS INC ET AL
SHARON LANTZ Sheriff or Deputy Sheriff of
Cumberland County,Pennsylvania, who being duly sworn according to law,
says, the within NOTICE ag58.1 -+- a--3~.- was served upon
nTT TDDL~CL' .Tr1QT:'DU the
DEFENDANT at 0945:00 HOURS, on the 22nd day of October 2007
at 406 BRANDY LANE
MECHANICSBURG, PA 17055 by handing to
a true and attested copy of NOTICE
together with
and at the same time directing His attention to the contents thereof.
Sheriff's Costs: So Answers:
Docketing 6.00
Service .00 -~'~
Affidavit .00
Surcharge 10.00 R. Thomas Kline
.00
sv'~eto7 `~ X6.00 10/23/2007
REAGER & ADLER
Sworn and Subscibed to B~
before me this day
of A.D.
BRANDY INVESTORS, LP,
Plaintiff
v.
CALABRESE & SONS, INC. and,
JOSEPH CALABRESE,
Defendants
IN THE COURT OF COMMON PLEAS,
CUMBERLAND COUNTY, PENNSYLVANIA
CIVIL ACTION
NO.07-4722
CONFESSION OF JUDGMENT
PRAECIPE FOR WRIT OF EXECUTION
CONFESSED JUDGMENT
TO: The Prothonotary:
Issue a Writ of Execution upon a judgment entered by confession in the above matter,
(1) directed to the sheriff of Cumberland County;
(2) against Calabrese & Sons, Inc. and Joseph Calabrese; and
(3) against Integrity Bank garnishee;
(4) and index this writ
(a) against Calabrese & Sons, inc., and Joseph Calabrese, defendants, and
(b) against IntegrityBank, as garnishee, as a lis pendens against real property
of the defendant in the name of garnishee as follows: N/A
(specifically describe the property)
(5) Amount due: $ 67,831.59
Interest from: July 2007 $ 3,349.51
Attorney's fees $ 7,118.86
Prothonotary Filing Fee $ 24.50
Sheriff's Service $ 200.00
Certification
I certify that
(a) This praecipe is based upon a judgment entered by confession and
(b) The Prothonotary is authorized to issue the writ of execution because notice has been
served pursuant to Rule 2958.1 at least thirty days prior to the filing of this praecipe
as evidenced by a return of service filed of record.
Date: January 17, 2008
J H. Pietrzak, Esquire
31 Market Street
Camp Hill, PA 17011
(717)763-1383
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REAGER &ADLER, PC
ATTORNEYS AND COUNSELORS AT LAW
2331 MARKET STREET
CAMP HILL, PENNSYLVANIA 17011-4642
717-763-1383
TELEFAX 717-730-7366
WEBSITE: ReagerAdlerPC.com
THEODORE A. ADLER +
DAVID W. REAGER
LINUS E. FENICLE
THOMAS O. WILLIAMS
PETER R. WILSON
Writer's E-Mail Address: JPietrzak@ReaoerAdlerPC.com
January 17, 2008
via hand delivery
Office of the Sheriff
Cumberland County Court of Common Pleas
Courthouse
One Courthouse Squaze
Carlisle, PA 17013
SUSAN H. CONFAIR
JOHN H. PIETRZAK
RICHARD J. JOYCE
+Certified Civil Trial Specialist
Re: Brandy Investors, LP v. Calabrese & Sons, Inc., and Joseph Calabrese
Civil Action No. 07-4722
Our file no.: 07-554.000
Dear Sir:
Enclosed please find the following in connection with the above-referenced matter:
1. Three time-stamped copies of a Praecipe and Writ of Execution;
2. Our check payable to the Sheriff in the amount of $200; and
3. A stamped, self-addressed return envelope.
Please serve the respective time-stamped copies of both the Praecipe and Writ on the two
Defendants, Calabrese & Sons, Inc., and Joseph Calabrese. The address for both Defendants is
as follows:
Joseph Calabrese
406 Brandy Lane
Mechanicsburg, PA 17055
Calabrese & Sons, Inc.
406 Brandy Lane
Mechanicsburg, PA 17055
In addition, please file the third time-stamped copy of both the Praecipe and Writ on
Integrity Bank, as Garnishee, along with the attached Interrogatories. The address for the
Garnishee is as follows:
1 ,,,~
Office of the Sheriff
January 17, 2008
Page 2
Integrity Bank
3345 Market Street
Camp Hill, PA 17011
In addition, please send a return of service for each defendant to us in the stamped, self-
addressed envelope we have enclosed.
If you have any questions, or require anything additional, please do not hesitate to contact
us.
Thank you for your assistance.
Very truly yours,
r-
John H. Pietrzak
JHP/seh
Enclosures
WRIT OF EXECUTION and/or ATTACHMENT
COMMONWEALTH OF PENNSYLVANIA)
COUNTY OF CUMBERLAND)
NO 07-4722 Civil
CIVIL ACTION -LAW
TO THE SHERIFF OF CUMBERLAND COUNTY:
To satisfy the debt, interest and costs due BRANDY INVESTORS, LP, Plaintiff (s)
From CALABRESE & SONS, INC. AND JOSEPH CALABRESE, 406 BRANDY LANE,
MECHANICSBURG, PA 17055
(1) You are directed to levy upon the property of the defendant (s)and to sell
(2) You are also directed to attach the property of the defendant(s) not levied upon in the possession
of INTEGRITY BANK, 3345 MARKET STREET, CAMP HILL, PA 17011
GARNISHEE(S) as follows:
and to notify the garnishee(s) that: (a) an attachment has been issued; (b) the garnishee(s) is enjoined from
paying any debt to or for the account of the defendant (s) and from delivering any property of the defendant
(s) or otherwise disposing thereof;
(3) If property of the defendant(s) not levied upon an subject to attachment is found in the possession
of anyone other than a named garnishee, you are directed to notify him/her that he/she has been added as a
garnishee and is enjoined as above stated.
Amount Due $67,831.59
Interest FROM JULY 2007 - $3,349.51
Atty's Conan
Atty Paid $171.62
Plaintiff Paid
Date: JANUARY 17, 2008
(Seal)
L.L. $.50
Due Prothy $2.00
Other Costs ATTORNEY'S FEES - $7,111.86
Curti R. Long, Pr notary
By:
Deputy
REQUESTING PARTY:
Name JOHN H. PIETRZAK, ESQUIRE
Address: 2331 MARKET STREET
CAMP HILL, PA 17011
Attorney for: PLAINTIFF
Telephone: 717-763-1383
Supreme Court ID No.
. ~.,, .,
SHERIFF'S RETURN - GARNISHEE
CASE NO: 2007-04722 P
COMMONWEALTH OF PENNSLYVANIA
COUNTY OF CUMBERLAND
BRANDY INVESTORS LP
VS
CALABRESE & SONS INC ET AL
And now MICHAEL BARRICK ,Sheriff or deputy Sheriff of
Cumberland County of Pennsylvania, who being duly sworn according
to law, at 0015:23 Hours, on the 29th day of Janua~ 2008, attached
as herein commanded all goods, chattels, rights, debts, credits, and
moneys of the within named DEFENDANT ,
CALABRESE & SONS INC in the
hands, possession, or control of the within named garnishee
INTEGRITY BANK 3345 MARKET ST
CAMP HILL, PA 17011
Cumberland County, Pennsylvania, by handing to
JEIAN RAUCHOT (BANK MANAGER)
personally three copies of interogatories together) with 3 true
and attested copies of the within WRIT OF EXECUION and made
the contents there of known to His .
Sheriff's Costs: So ans~~ ~~
Docketing . 0 0 ~'.'" „~~~,.,~-~-~ ~ ~~,.~%..:~.~~`
Service .00
Affidavit .00 R. Thomas Kline
Surcharge .00 Sheriff of Cumberland County
. 0 0 0 0 / i/.~ i~0 P c~
01/30/2008
Sworn and Subscribed to
before me this day of By f
Deputy She iff
A.D
.:.. "~
SHERIFF'S RETURN - GARNISHEE
CASE NO: 2007-04722 P
COMMONWEALTH OF PENNSLYVANIA
COUNTY OF CUMBERLAND
BRANDY INVESTORS LP
VS
CALABRESE & SONS INC ET AL
And now MICHAEL BARRICK
,Sheriff or l3eputy Sheriff of
Cumberland County of Pennsylvania, who being duly sworn according
to law, at 0015:23 Hours, on the 29th day of January 2008, attached
as herein commanded all goods, chattels, rights, debts, credits, and
moneys of the within named DEFENDANT ,
CALABRESE JOSEPH
in the
hands, possession, or control of the within named Garnishee
INTEGRITY BANK 3345 MARKET ST
CAMP HILL, PA 17011
Cumberland County, Pennsylvania, by handing to
JEIAN RAUCHOT (BANK MANAGER)
personally three copies of interogatories together with 3 true
and attested copies of the within WRIT OF EXECUTION and made
the contents there of known to His
Sheriff's Costs: So answers /
Docketing .00 '~'
Service • 00 ~`"
Affidavit .00 R. Thomas Kline
Surcharge .00 Sheriff of Cumberland County
.00
. 0 0 / ~~3/~D ~
01/30/2008
Sworn and Subscribed to
before me this day of By
eputy her ff
A.D
1 __"
R. Thomas Kline, Sheriff, who being duly sworn according to law, states
this writ is returned SATISFIED.
Sheriff s Costs:
Docketing
Poundage
Advertising
Law Library
Prothonotary
Mileage
Misc.
Surcharge
Levy
Post Pone Sale
Garnishee
Bad Check Charge
Postage
TOTAL $
18.00
1356.64
.50
2.00
13.44
40.00
20.00
9.00
1459.58 / -~~~°~~°p
Pd by Defendant
So Answers;
r^ L
.~+..~j~"r~
R. Thomas Kline, Sheriff
w
au is A. rew
~ o~ d z z ~nr sooz ~=
_ .~~12~3HS 3H1 .~0 331.~~0
J :,,y -;
.~ oG / ~/
r,
z
J
Y
WRIT OF EXECUTION and/or ATTACHMENT
COMMONWEALTH OF PENNSYLVANIA)
COUNTY OF CUMBERLAND)
NO 07-4722 Civil
CIVIL ACTION -LAW
TO THE SHERIFF OF CUMBERLAND COUNTY:
To satisfy the debt, interest and costs due BRANDY INVESTORS, LP, Plaintiff (s)
From CALABRESE & SONS, INC. AND JOSEPH CALABRESE, 406 BRANDY LANE,
MECHANICSBURG, PA 17055
(1) You are directed to levy upon the property of the defendant (s)and to sell
(2) You are also directed to attach the property of the defendant(s) not levied upon in the possession
of INTEGRITY BANK, 3345 MARKET STREET, CAMP HILL, PA 17011
GARNISHEE(S) as follows:
and to notify the garnishee(s) that: (a) an attachment has been issued; (b) the garnishee(s) is enjoined from
paying any debt to or for the account of the defendant (s) and from delivering any property of the defendant
(s) or otherwise disposing thereof;
(3) If property of the defendant(s) not levied upon an subject to attachment is found in the possession
of anyone other than a named garnishee, you are directed to notify him/her that he/she has been added as a
garnishee and is enjoined as above stated.
Amount Due $67,831.59
Interest FROM JULY 2007 - $3,349.51
Atty's Comm
L.L. $.50
Due Prothy $2.00
Atty Paid $171.62
Plaintiff Paid
Date: JANUARY 17, 2008
(Seal)
REQUESTING PARTY:
Name JOHN H. PIETRZAK, ESQUIRE
Address: 2331 MARKET STREET
CAMP HILL, PA 17011
Attorney for: PLAINTIFF
Telephone: 717-763-1383
Supreme Court ID No.
Other Costs ATTORNEY'S FEES - $7,111.86
Curtis .Long, Proth ry
By:
Deputy
DISTRIBUTION
ATTY FOR PLTFF: John Pietrzak
WRIT NO. 2007- 4722 Civil
Brandy Investors, L.P.
-vs-
Calabrese & Sons, Inc., & Joseph Calabrese
Real Debt $ 67,831.59
Interest 3349.51
Attorney's Comm.
Writ Costs, Atty 171.62
Writ Costs, Pltff.
Miscellaneous 7111.86
Attorneys Fees
$ 78,464.58
Sheriff s Costs:
Docketing $ 18.00
Poundage 1356.64
Posting Sale Bills
Law Library .50
Prothonotary 2.00
Service 13.44
Postage
Advertising
Postpone Sale
Bad Check Charge
Surcharge 40.00
Garnishee 9.00
Levy 20.00
TOTAL $ 1459.58
Defendant Paid to Sheriff $ 79,924.16
Advance Costs 200.00
Total Collected $ 80,124.16
2604.68 DISTRIBUTION
Pd. To Pltff. $ 78,464.58
Refund of Adv. Costs 200.00
Pd. To Prothonotary 2.50
R. Thomas Kline,
Sheriff
By