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HomeMy WebLinkAbout09-2082I .. Confession of Judgment Prepared By: Diane G. Radcliff, Esquire 3448 Trindle Road, Camp Hill, PA 17011 Supreme Court ID # 32112 Phone: 717-737-0100 9 Fax: 717-975-0697 • Email: dianeradcliff @comcast.net Attorney/Agent for Plaintiff IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA BARNETT PROPERTY MANAGEMENT, INC. Plaintiff NO. 01- 2082 CIVIL TERM V. CIVIL ACTION - LAW DAVID J. THOMAS and 6108 CARLISLE PIKE RESTAURANT COMPANY, LLC IN EJECTMENT Defendants CONFESSION OF JUDGMENT Pursuant to the authority contained in the warrant of attorney in the Lease dated February 1, 2005, the original or copy of which is attached to the Complaint filed in this action, I, Diane G. Radcliff, Esquire, an attorney duly authorized to practice law in the Commonwealth of Pennsylvania, appear for the Defendants and confess judgment in ejectment in favor of the Plaintiff and against the Defendants for possession of the real property described as follows: Suite 108-112,, Good Hope Plaza, 6108 Carlisle Pike, Mechanicsburg, Pennsylvania, 17050 containing 4,985 square feet, more or less, being part of the premises more fully bounded and described on Exhibit "A" attached hereto and made a part hereof. Respectfully submitted, FF, ESQU I RE Camp Hill, PA 17011 Phone: (717) 737-0100 Supreme Court ID # 32112 EXHIBIT "A" 6108 CARLISLE PIKE. MECHANICSBURG, PA ALL THAT CERTAIN tract or parcel of land and premises situate, lying and being in the Township of Hampden, County of Cumberland and Commonwealth of Pennsylvania, more particularly described as follows: BEGINNING at a point, said point being at the intersection of the north side of a 50.0 foot wide right of way and the east side of Gustin Drive; THENCE by the east side of Gustin Drive North 15° 02' 47" East 278.55 feet to a point at land of Wu Chon Ho; THENCE by same South 63° 41' 43" East 150.00 feet to a point; THENCE by same North 26' 37' 26" East 162.25 feet to a point on the south side of the Carlisle Pike; THENCE by same and a curve to the left having a radius of 11,409.19 feet, an arc length of 173.82 feet to a point at lands of the Pep Boys; THENCE by same South 26° 23' 48" West 432.45 feet to a point on the north side of a 50.00 foot wide right of way; THENCE by same North 64° 11' 00" West 269.65 feet to the PLACE OF BEGINNING CONTAINING 2.504 acres. BEING the same premises which Skyport Properties, a Pennsylvania Limited Partnership, by its Deed dated February 14, 2003 and recorded February 21, 2003 in the Office of the Recorder of Deeds in and for Cumberland County, Pennsylvania, in Deed Book 255, Page 4133, granted and conveyed unto Barnett Real Estate, LLC. Complaint Prepared By: Diane G. Radcliff, Esquire 3448 Trindle Road, Camp Hill, PA 17011 Supreme Court ID # 32112 Phone: 717-737-0100 • Fax: 717-975-0697 • Email: dianeradcliff @comcast.net Attorney for Plaintiff BARNETT PROPERTY MANAGEMENT, INC. IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff V. NO. 09- ar,?a -- DAVID J. THOMAS and 6108 CARLISLE PIKE RESTAURANT COMPANY, LLC, Defendants CIVIL ACTION - LAW ACTION IN EJECTMENT COMPLAINT CONFESSION OF JUDGMENT IN EJECTMENT AND NOW, this 2nd day of Aril, 2009, comes the Plaintiff, Barnett Property Management, Inc., by its attorney and duly authorized agent, Diane G. Radcliff, Esquire, and files this Complaint pursuant to Pa.R.C.P. No. 2971(a) for judgment in ejectment by confession and avers the following: 1. Plaintiff Barnett Property Management, is a Pennsylvania corporation whose principal place of business is 25 Shady Lane, Carlisle, PA 17013. 2. Defendant, David J. Thomas, is an adult individual whose address is 110 Walnut Street, Lemoyne, PA 17043. 3. Defendant, 6108 Carlisle Pike Restaurant Company, LLC is a limited liability company whose mailing address is 110 Walnut Street, Lemoyne, PA 17043. 4. 6108 Carlisle Pike Restaurant Company, LLC is solely owned by Defendant, David J. Thomas. 5. Plaintiff (hereinafter referred to as "Landlord") and Defendants (hereinafter referred to as "Tenants") entered into a Lease dated February 1, 2005 in which Landlord leased to Tenants and Tenants leased from Landlord the property known as Suites 108-112 of the 1 Good Hope Plaza, 6108 Carlisle Pike, Mechanicsburg, PA 17050. A true and correct copy of the Lease is attached hereto marked as Exhibit "A" and made a part hereof ("the Lease"). 6. The original Lease containing the authorization for Confession of Judgment in Ejectment was attached to the original Complaint for Confession of Judgment in Ejectment dated February 19, 2009 and filed in the case docketed to No. 09-1005. 7. On March 17, 2009, a phone conference was held by the Judge assigned to this case, Honorable J. Wesley Oler, Jr., ("Judge Oler") and the parties' respective attorneys as a result of which the parties agreed to the entry of the attached Order. 8. The Lease was negotiated by the parties and their then respective counsel, Diane G. Radcliff, Esquire for Landlord and Michael Solomon, Esquire for Tenants. 9. On or about January 4, 2008, as a result in Tenants failure to pay certain payments due under the Lease, Landlord and Tenants entered into a settlement agreement entitled "1 /4/08 Settlement Agreement" regarding the past amounts owed by Tenants to Landlord for rent, late charges and CAMS arising out of the Lease. A true and correct copy of the 1/4/08 Settlement Agreement is attached hereto marked as Exhibit "B" and made a part hereof ("the 1/4/08 Settlement Agreement"). 10. The 1/4/08 settlement agreement provided for the payment of those past due amounts, future CAMS and rental payment date , but did not modify, abrogate nor change any other terms of the Lease. 11. In accordance with the terms of the Lease as modified by the 1/14/08 Settlement Agreement, Tenants were to pay the monthly rent and CAMS by the 10th day of each month 10th of the month starting with the rent due for February, 2008 with the express provision that the rent was still due on the 11 of the month, but no late fees will be charged, and no default will be deemed to have occurred, if paid by the 10th. 12. Tenants defaulted in the timely payment of the required monthly rent by the 10th day of the month in that Tenants failed to make the December 2008 payment of the rent in the face amount of $3,738.75 and CAMS in the face amount of $2,000.00 by December 10, 2008. 13. As a result of Defendant's default in making the December, 2008 rental payment by December 10, 2008, and as required by paragraph 24(e) of the Lease attached hereto as Exhibit "A" and made a part hereof, on December 16, 2008, Landlord sent Defendants a Notice of Default and giving them fourteen days in which to cure that default (Paragraph 24e Default/Cure Notice"). A true and correct copy of the December 16, 2008 Default/Cure Notice is attached hereto, marked Exhibit "C" and made a part hereof. 2 14. After sending Tenants the December 16, 2008 Default/Cure Notice attached as Exhibit "C", Landlord by letter dated December 31, 2008, agreed to extend the time of payment of the December 2008 rent and CAMS to Monday, January 5, 2009 provided that Tenants paid Landlord $15,430.27 for the December 2008 rent, CAMs and late charges, the January 2009 rent and CAMS and the December 31, 2008 past due CAM payment. A true and correct copy of the December 31, 2008 extension letter is attached hereto, marked Exhibit "D" and made a part hereof. 15. Tenants did not make the payments required by the December 31, 2008 letter by the January 5, 2009 due date. 16. On or about January 5, 2009, Defendants paid the December 2008 rent, CAM payment and late fees in the amount of $5,738.75 by check no. 8170, which check was not honored by Defendants' bank and was returned to Landlord marked insufficient funds. A true and correct copy of the December Rent check No 8170 is attached hereto, marked Exhibit "E" and made a part hereof. 17. On or about January 14, 2009, Defendants paid the January 2009 rent and CAM payment in the amount of $6,122.22 by check no. 8207, which check was not honored by Defendants' bank and was returned to Landlord marked insufficient funds. A true and correct copy of the January 2009 Rent check No 8207 is attached hereto, marked Exhibit "F" and made a part hereof. 18. On January 20, 2009, having learned of the dishonored check # 8170 for the December 2008 rent, Landlord sent a letter to Defendants regarding the dishonored check giving the required 10 days to make the check good. A true and correct copy of the January 20, 2009 letter is attached hereto, marked Exhibit "G" and made a part hereof. 19. On January 23, 2009, having learned of the dishonored check # 8270 for the January 2009 rent, Landlord sent a letter to Defendants regarding the dishonored check giving the required 10 days to make the check good. A true and correct copy of the January 23, 2009 letter is attached hereto, marked Exhibit "H" and made a part hereof. 20. Tenants did not make the checks good within the required 10 day time period as a result of which criminal "bad check" charges were filed against Defendant, David J. Thomas. 21. While the criminal charges were pending, in February 2009, Tenant David J. Thomas came to the law office of Landlord's agent, Diane G. Radcliff, Esquire, and offered to pay the past due rent and CAMS then due December and January, however the offered amount was not enough to pay that past due rent, CAMS and late charges in full. Said tender was refused because of the inadequacy and because the criminal charges were pending. 3 22. Shortly after the offered inadequate tender of the past due rent, CAMS and late charges referenced in paragraph 21 above, and on the same date, Tenant, David J. Thomas, then tendered a check for the February rent and CAMS, again for an amount less than the full amount due under the Lease. When he tendered that rent payment he was specifically told that the tendering of the February rent and CAM Payment would not negate his prior default. 23. Because of the aforesaid default and pending criminal charges, the Tenants check for the February Rent and CAMS was not deposited nor cashed by Landlord. 24. As of the date of the filing of this Complaint, Landlord has not received payment of the rent, and CAMS for December 2008 nor January 2009, which Defendant supposedly paid into the Court as part of the bad check criminal proceedings. Nor has Tenants paid Landlord all of the late fees that have been assessed on those past due rental payments. 25. As a result of Tenants' default of the payment of the December and January rent, CAMS and late fees and failure to cure said default, in accordance with the terms of the Lease and the 1/4/07 Settlement Agreement, Landlord was and is entitled to possession of the Leased Premises and was and is entitled to evict the Tenants therefrom. 26. Because of Tenants prior default, Landlord filed a Complaint for Confession in Ejectment against Tenants in the Cumberland County action docketed to No. NO. 09-1005. 27. Based on the Defenses raid by Tenants in the action referenced in paragraph 26, and pursuant to the telephone conference with Judge Oler referenced in paragraph 7 herein, Landlord is filing an Amended Complaint in that action concurrently herewith. 28. Paragraph 7 of the 1/4/08 Settlement Agreement attached as Exhibit "B" provides that: If Lessee fails to make any payments due under the Lease as modified hereby, by the due dates provided in the Lease as may be modified herein, then in addition to any remedies provided in the Lease, Lessee shall owe Lessor the amounts specified in Schedule 11811, less any amounts paid by Lessee on or after the date hereof. For that purpose the amounts to be credited to Lessee shall not include any interest payments charged and paid in accordance with Schedule "A". 29. Defendants did not make the December 2008, and January 2009 Rent by the due date provided in the lease, as a result of which Defendants owe Landlord $22,303.72 calculated in accordance with 1/14/09 Settlement Agreement as follows: 4 SCHEDULE "B" Calculations Thomas Lease Good Hope Plaza • Past Due Amount s Description Subtotal Total 9.1.05-12.31.07 Rent One Time Late Fees $4,500.00 9.1.05-12.31.07 Daily Late Fee $1,410.00 9.1.05-12.31.07 Bank Charges for NSF 40.00 Subtotal 9.1.05-12.31.07 Rent Late Fees & Charges $5,950.00 $5,950.00 fffffffffffffffffffffffffffff fffffffffffffff ffffffffffffff 2005-2006 Past Due Cams $7,285.75 2005-2006 Cams Late Fees $2,896.26 Subtotal 2005-2006 Cams & Late Fees $10,182.71 $10,182.71 01 200715' Quarter Cams $10,593.17 2007 2nd Quarter Cams $6,987.03 2007 3'd Quarter Cams $2,428.93 2007 Cam Payment 10, 10,07 ($2,500.00) 2007 Cam Late Fees $1,059.32 2007 Cam Late Fees 98.70 Subtotal 2007 Cams through 3'd Quarter $18,568.45 $18,568.46 ZZ111t1 11111ZZ1L111Z11Z111Z1 ?111Z?1?11111Z 11Z1Z Z 1Z1 Total Past Due Amounts $34,701.16 Zlllll?Z?Z11ZZ1lZZZlZZZ11Z111 ZZ111ZZ1ZZ11Z1 ZZZIIZZZ1Z11ZZ 3.31.08 payment $3,099.36 6.30.08 payment $3,099.36 9.30.08 payment $3,099.36 12.31.08 payment $3,099.36 Total Payments $12,397.44 ($12,397.44) Zw IN IN I - -- I?NVM q0TAL AMOUNT NOW DUE TF $22,343.72 F 30. On February 18, 2009, Landlord sent Defendants a Paragraph 24e Default/Cure Notice regarding the payment of the past due rent, CAMS and late fees as calculated and due under the Lease and the 1/4/07 Settlement Agreement . A true and correct copy of the 5 2/18/09 letter is attached hereto, marked Exhibit "I" and made a part hereof. 31. Defendants did not cure their default in payment of the Schedule "B" past due CAMS, late fees and rent amounts by the end of the 14 cure period, said ending date being March 4, 2009. 32. As a result of Defendants default and failure to cure, in accordance with the terms of the Lease and the 1/4/07 Settlement Agreement, Landlord is entitled to possession of the Leased Premises and is entitled to evict the Tenants therefrom. 33. The Leased Premises are known as Suite 108-112, Good Hope Plaza, 6108 Carlisle Pike, Mechanicsburg, Pennsylvania, 17050 containing 4,985 square feet, more or less, being part of the premises more fully bounded and described as follows: ALL THAT CERTAIN tract or parcel of land and premises situate, lying and being in the Township of Hampden, County of Cumberland and Commonwealth of Pennsylvania, more particularly described as follows: BEGINNING at a point, said point being at the intersection of the north side of a 50.0 foot wide right of way and the east side of Gustin Drive; THENCE by the east side of Gustin Drive North 15° 02' 47" East 278.55 feet to a point at land of Wu Chon Ho; THENCE by same South 63° 41' 43" East 150.00 feet to a point; THENCE by same North 26° 37' 26" East 162.25 feet to a point on the south side of the Carlisle Pike; THENCE by same and a curve to the left having a radius of 11,409.19 feet, an arc length of 173.82 feet to a point at lands of the Pep Boys; THENCE by same South 26° 23' 48" West 432.45 feet to a point on the north side of a 50.00 foot wide right of way; THENCE by same North 64° 11' 00" West 269.65 feet to the PLACE OF BEGINNING CONTAINING 2.504 acres. BEING the same premises which Skyport Properties, a Pennsylvania Limited Partnership, by its Deed dated February 14, 2003 and recorded February 21, 2003 in the Office of the Recorder of Deeds in and for Cumberland County, Pennsylvania, in Deed Book 255, Page 4133, granted and conveyed unto Barnett Real Estate, LLC. 6 34.P aragraph 25(H) of the Lease attached as Exhibit "A" authorizes Landlord confess judgment in ejectment against Defendants-Tenants as follows: 25. LANDLORD'S REMEDIES. Upon the occurrence of Tenant's default of the terms of this Lease, Landlord shall have the following remedies, which shall be cumulative and not in the alternative: E. To confess judgment against Tenant in an amicable action in ejectment in which event Tenant hereby authorizes the Prothonotary or any attorney of record to appear for and to confess judgment in ejectment against Tenant and in favor of Landlord and to direct the immediate issuance of a writ of possession, all without notice or leave of Court and waiving all irregularities. 26. The attached Lease containing the Confession of Judgment in Ejectment clause has not been assigned. 27. A prior judgment in ejectment has been entered on the attached Lease in the Complaint in Confession of Judgment in Ejectment dated February 19, 2009 and filed on February 19, 2009 to docket number 09-1005. 28. The Lease and 1/4/07 Settlement Agreement involves a commercial lease of real property and Judgment is not being entered against a natural person in connection with a residential lease. WHEREFORE, Plaintiff-Landlord demands judgment in ejectment for possession of the above described premises as authorized by the warrant of attorney appearing in the attached Lease. RespectfVsubmitted, M*W-G. DCLIFF, ESQUIRE,. 3448 Trindle oad, Camp Hill, P 17011 r11011IM-. (?V) 737-0100 Supreme Court ID # 32112 Attorney for Plaintiff-Landlord 7 VERIFICATION I, Deborah L. Donley, Assistant Manager of Barnett Property Management, Inc., verify that the statements made in this Complaint are true and correct. I understands that false statements herein are made subject to the penalties of 18 Pa.C.S. Section 4904, relating to unsworn falsification to authorities. AAAW) oC DEBORAH L. DONLEY Dated: March 17, 2009 7 EXHIBIT "A" FEBRUARY 1, 2005 LEASE LEASE AGREEMENT BARNETT PROPERTY MANAGEMENT, INC. , Landlord and DAVID J. THOMAS and 6108 CARLISLE PIKE RESTAURANT CO. LLC, Tenants TABLE OF CONTENTS P:UZAGRAPII DESC'RIPTION PAG E I LI ASLD PREMISES 1 I_.EASF I ERNI 1 RL-Nk 'AI TLR_`I(S) 1 4 RENT 1 LARD' l I?RI?IIN.A'IION ? 6 HOLDING OVER 7 I-AXES, INSURANCE AND CAMS S EXPENSES BENEFIT] ING ONLYTI-IE LEASED PREMISES 6 9 SECURITY 7 10 FINISHING PLANS AND SPECIFICATIONS b II REPAIRS 9 12 USE OF PREMISES 9 13 SIGNS 11 1-1 PARKING LO 11. 15 INSURANCE 11 16 WAIVER OF SUBROGATION I2 17 FIRE AND OTHER CASUALTY 12 1$ LIABILITY I3 19 CONDEMNATION 1-1 20 SUBORDINATION 14 21 ASSIGNMENT AND SUBLEASES 14 22 REMOVAL OF PROPERTY IS 2; MISCELLANEOUS OBLIGATIONS OF TENANT 15 24 LANDLORD'S RIGHTS 17 LANDLORD'S REMEDIES 19 26 LITIGATION 20 27 NOTICES 21 2S CONSTRUCTION 21 2c1 IN I'll-,(* IZATION ,O SEVER,a13IL-ITY 1 ?? QUIET LN.IOI'?IL-NT ?' ' , CHANGES CO C"O1ItiLON :?R1:?;15 - I .. LEASE AGREEMENT THIS LEASE made this 1s' day of February, 2005, by and between BARNETT PROPERTY MANAGEMENT, INC. , with offices at 25 Shady Lane, Carlisle, Pennsylvania, 17013, as Landlord (hereinafter referred to as "Landlord") AND David J. Thomas and 6108 Carlisle Pike Restaurant Co., LLC, both of 212 Locust Street, Suite 500, Harrisburg, PA 17101, (hereinafter referred to as "Tenant") THE PARTIES AGREE AS FOLLOWS: 1. LEASED PREMISES. Landlord hereby agrees to lease to Tenant, and Tenant agrees to rent from Landlord the Leased Premises known and numbered as Suite 108-112, Good Hope Plaza, 6108 Carlisle Pike, Mechanicsburg, Pennsylvania, 17050 containing 4,985 square feet, more or less ("Leased Premises") (Good Hope Plaza is herein referred to as the "Shopping Center"). 2. LEASE TERM. The initial term of this Lease ("Initial Lease Term"), shall be for a period of ten (10) ms(s) seven (7) month(s) commencing on February 1, 2005, ("Commencement Date"), and expiring on ten (10) years and seven (7) months after the Commencement Date, (Ausust 31, 2015) (hereinafter referred to as the "Expiration Date"). 3. RENEWAL TERM US. Tenant shall have the option of renewing this Lease for two consecutive five (5) year Lease Terms, the first of which shall commence at the end of the Initial Lease Term ("Renewal Lease Term(s)"). As conditions precedent to the exercise of the renewal option, (1) Tenant must not have been in default of the terms and conditions of this Lease at any time within the one (1) year period prior to the expiration of the preceding Lease Term and (ii) Tenant must provide Landlord with written notice of its intent to renew the Lease at least ninety (90) days prior to the expiration of the preceding Lease Term. If exercised, each Renewal Lease Term shall be under and subject to the terms and conditions herein set forth. 4. RENT. The rent and the late charges assessable upon late payment of rent shall be under and subject to the following terms and conditions: -2- A. Rent Amount: The rent for the Initial Lease Term and the Renewal Lease Term(s)shalt be paid in the monthly installments ("Monthly Rent")in accordance with the schedule set forth in the following Table #1: TABLE #1 - RENT AND LATE CHARGES Term No. Of Months $/Sq. Ft. Total Rent Monthly Rent One Time Late Fee Daily Late Fee Initial? months 7 $0.0000 $0.00 $0.00 $0.00 $0.00 Year1 12 $8.0000 $39,880.00 $3,323.33 $250.00 $10.00 Year2 12 $8.0000 $39,880.00 $3,323.33 $250.00 $10.00 Year3 12 $9.0000 $44,865.00 $3,738.75 $250.00 $10.00 Year4 12 $9.2250 $45,986.63 $3,832.22 $250.00 $10.00 Year5 12 $9.4556 $47,136.29 $3,928.02 $250.00 $10.00 Year6 12 $9.6920 $48,314.70 $4,026.22 $250.00 $10.00 Year7 12 $9.9343 $49,522.57 $4,126.88 $250.00 $10.00 Year8 12 $10.1827 $50,760.63 $4,230.05 $250.00 $10.00 Year9 12 $10.4372 $52,029.65 $4,335.80 $250.00 $10.00 Year 10 12 $10.6982 $53,330.39 $4,444.20 $250.00 $10.00 Year 11 12 $11.6982 $58,315.53 $4,859.63 $250.00 $10.00 Year 12 12 $11.9907 $59,773.42 $4,981.12 $250.00 $10.00 Year 13 12 $12.2904 $61,267.75 $5,105.65 $250.00 $10.00 Year 14 12 $12.5977 $62,799.44 $5,233.29 $250.00 $10.00 Year 15 12 $12.9126 $64,369.43 $5,364.12 $250.00 $10.00 Year 16 12 $13.9126 $69,354.31 $5,779.53 $250.00 $10.00 Year 17 12 $14.2604 $71,088.17 $5,924.01 $250.00 $10.00 Year 18 12 $14.6169 $72,865.37 $6,072.11 $250.00 $10.00 Year 19 12 $14.9823 $74,687.01 56,223.92 $250.00 $10.00 Year 20 12 $15.3569 576,554.18 $6,379.52 $250.00 $10.00 B. 15` Seven Months: There shall be no Monthly Rent due and owing for the first seven (7) months of the Initial Lease Term, provided, however, that during said -3- seven (7) month, period, Tenant shall be obligated to comply with all other Lease terms including but not limited to payment of Tenant's share of the taxes, insurance and CAMS . C. Payment of Monthly Rent: The first Monthly Rent shall be due and payable on the first day of the eight (8th) month of this Lease, and except as otherwise herein provided, must be paid before Tenant has the right to occupy the Leased Premises. If that rent is not paid by this date, this Lease shall be terminated. If said day is other than the first of the month, the rent for that month shall be prorated so that all future rent payments shall be due and payable on the first day of each month thereafter during the term of this Lease or any renewal thereof. D. Late Charge: If the Monthly Rent has not been received by Landlord within five (5) days of each monthly due date, Tenant shall be charged a one time late fee of $250.00 as set forth in the foregoing Table #1. In addition, if the Monthly Rent has not been received by Landlord within fifteen (15) days of each monthly due date, Tenant shall be charged a daily late charge at the rate of $10.00 per day starting on the 16th day after the rent due date and daily thereafter until the Monthly rent is paid in full. The late charges shall be immediately due and payable by Tenant. E. Tenant's Failure to Move Into Property: If Tenant does commence Tenant's renovations within thirty (30) days of the date of Notice of Intent to Occupy the Premises set forth in Paragraph 2 above or does not commence the operation of Tenant's business by the date falling eight (8) months after the Commencement Date, then this Lease may be terminated by Landlord unless the parties otherwise agree in writing. F. Place of Payment: The rent shall be paid by Tenant to Landlord at 25 Shady Lane, Carlisle, PA 17013, or such other place as Landlord may hereafter designate. G. Method Of Payment/Returned Checks: The rent may be paid by personal or business check. In the event, however, that any rental check is returned by Tenant's bank for insufficient funds, that check must be made good within forty- eight (48) hours after Tenant is notified of the return, and Tenant shall pay to Landlord a service fee of $20.00 for each returned check. Further, after such return, Tenant shall pay all future rent by certified check, cashier's check or money order. -4- H. No Rent Proration or Reduction: The rent set forth above shall not be reduced or prorated if Tenant vacates (leaves) the Leased Premises prior to the end of the then existing Lease Term, or if Tenant leaves on any date other that the end of any Lease month occurring after termination of this Lease. 5. EARLY TERMINATION. Tenant shall have the right to terminate this lease prior to the expiration of the Lease Term or any renewal term thereof, by paying Landlord an amount equal to twelve (12) months of rent and cams based on the monthly rent and cams that would have been due and payable had such termination not occurred. Said termination rent is due and payable upon the termination and return of possession of the Leased Premises to Landlord. At Landlord's sole option the rent and cams may be paid in monthly installments. There shall be no offset against the termination rent and Tenant shall not be entitled to any rebate thereof in the event Landlord is able to rent the Leased Premises during the twelve (12) month period. Tenant's exercise of this right shall not be considered a default within the meaning of Paragraph 24 hereof. 6. HOLDING OVER. If Tenant continues to occupy the Leased Premises beyond the Expiration Date or any earlier termination of this Lease, such occupancy shall be subject to all of the same terms and conditions as are contained in this Lease, except that the rent payable during the period of such occupancy shall be equal to one and one-quarter (1.25) times the amount of the rent which was last in effect during immediately preceding Lease Term or Renewal Lease Term thereof. Neither the assessment of the holdover rent nor Landlord's acceptance of the payment of the holdover rent shall be deemed in any way to limit or impair Landlord's right to immediately evict Tenant or exercise Landlord's other rights and remedies under the provisions of this Lease or applicable law, including collection of consequential damages, on account of Tenant's occupancy of the Leased Premises without Landlord's prior written consent. 7. TAXES, INSURANCE, UTILITIES AND CAMS. In addition to the payment of the Rent, within thirty (30) days of billing, Tenant shall pay Landlord Tenant's proportionate share [twenty-six and twenty four hundredths (26.24%) percent] of the taxes, insurance, utilities (not separately metered to Tenant) and common area maintenance charges (CAMS) as additional rent. Tenant's proportionate share shall be determined by multiplying the costs of such expenses by a fraction the numerator of which is the gross square footage of the Leased Premises and the denominator of which is the total gross square footage of leasable space in Good Hope Plaza. Annual costs shall be prorated for any partial Lease Year. Capital Improvements shall be amortized over the life of the improvement as determined un the sole discretion of Landlord or Landlord's engineer. -5- The items payable as additional rent in accordance with the foregoing shall include, but not be limited to by way of specification, the following: A. Exterior Lighting: Operation, maintenance, repair and replacement of any exterior lights or lighting; B. Snow and Ice Removal: Snow and ice removal from the common areas, walkways, parking lot and driveways C. Parking Lot and Driveways: Repairs, maintenance and resurfacing of the walkways, parking lot and driveways and the regulation of traffic thereon; D. Landscaping: Landscaping, planting, replanting and removal of flowers, shrubbery, trees and planters; E. Utilities: Electricity; water, sewer and the like not separately billed to Tenant by the utility provider for utility service to the Leased Premises. Any other utility charges incurred by Tenant in the use of the Leased Premises that are directly billed to Tenant by the utility provider shall be paid by Tenant in a timely manner to that utility provider. F. Insurance: Landlord's insurance, subject to the provisions for increased insurance costs set forth in Paragraph 12 herein. G. Real Estate Taxes: The real estate taxes (County, municipal, school or other taxes payable or for any time during any Lease Year). H. Administrative Costs: An administrative fee shall be charged for managing, operating and maintaining Good Hope Plaza which shall be fifteen (15%) of the amount of the foregoing expenses 1. Service Charge: If Tenant fails to pay any of the foregoing charges and administrative costs within thirty (30) days of billing, there shall be a ten (10%) percent service charge added to those charges and costs, the calculation of which shall include the charge for administrative costs. 8. EXPENSES BENEFITTING ONLY THE LEASED PREMISES. In addition to the payment of the Rent, Tenant shall pay one hundred (100%) percent of the expenses for the Leased Premises that benefit only Tenant's Leased Premises. Annual costs shall be prorated for -6- any partial Lease Year. Capital Improvements and/or replacement of the same shall be amortized over the life of the improvement as determined in the sole discretion of Landlord or Landlord's engineer. The items payable as additional rent in accordance with the foregoing shall include, but not be limited to by way of specification, the following: A. HVAC: The costs of inspection, maintenance, repair and/or replacement of the HVAC system for Tenant's unit only. This service may be provided directly by Tenant in which event no service charge or late fee shalt apply, provided, however, if Tenant fails to provide the said services, Landlord may furnish said services and bill Tenant therefor, in which event the provisions regarding administrative costs and late fees shall apply. B. Exterior Doors: The cost of maintenance, repair and/or replacement of the exterior doors to the leased premises; C. Plate Glass: The cost of repair and/or replacement of all broken or damaged plate glass D. Cleaning: General cleaning, painting and stripping including, but not limited to, the cleaning of exterior windows. E. Refuse and Recycling Removal: Refuse, trash and recycling collection and removal for Tenant's unit only and from the parking lot and common areas. This service may be provided directly by Tenant in which event no service charge or late fee shall apply, provided, however, if Tenant fails to provide the said services, Landlord may furnish said services and bill Tenant therefor, in which event the provisions regarding administrative costs and late fees shalt apply. F. Utilities. Electricity; water, sewer and the like charges incurred by Tenant in the use of the Leased Premises that are directly billed to Tenant by the utility provider shall be paid by Tenant directly to the utility provider. G. Administrative Costs: An administrative fee shall be charged for managing, operating and maintaining Good Hope Plaza which shall be fifteen (15°x) percent of the amount of the foregoing expenses, if and only to the extent that such services are provided by Landlord and billed to Tenant. H. Service Charge: If Tenant fails to pay any of the foregoing charges and -7- administrative costs within thirty (30) days of Landlord's billing, there shall be a ten (10°x) percent service charge added to those charges and costs, the calculation of which shall include the charge of administrative costs. 9. SECURITY. The terms regarding the security deposit are as follows: A. Amount of Security Deposit: Upon the execution of this Lease Tenant shall pay Landlord a Security Deposit of $3,323.33 ("Security Deposit)". Within five (5) days of the date of any Monthly Rent increase, Tenant shall pay additional funds to Landlord to be held as a security deposit equal to the difference between the Monthly Rent amount then existing minus the Security Deposit then held by Landlord so that Landlord always has a Security Deposit equal to one month's as that Monthly Rent shall exist from time to time. B. Purpose of Security Deposit: The Security Deposit is to cover cleaning of the Leased Premises upon termination of this Lease and the costs of the repair and/or replacement of any damages to the Leased Premises occurring during Tenant's occupancy. The Security Deposit is not to be used by Tenant as a payment of any rent. C. Interest on Security Deposit: There shall be no interest payable on the Security Deposit. Tenant hereby waives any right to require Landlord to deposit the funds into an interest-bearing account. D. Transfer of Security Deposit to New Owner or Lessee: In the event of the sale or lease of the land of which Leased Premises is a part, Landlord shall have the right to transfer the Security Deposit to the vendee or lessee, and upon such transfer Landlord shall be considered released by Tenant from all liability regarding or relating to the Security Deposit including, but not limited to, the return of the Security Deposit , and Tenant shall look to the new Landlord solely for the return of the Security Deposit. It is agreed that this shall apply to every transfer or assignment made of the Security Deposit to a new landlord. E. Assignment: In the event of any rightful and permitted assignment of this Lease, the Security Deposit shall be deemed to be held by Landlord as a deposit made by the assignee, and Landlord shall have no further liability for any matters regarding or relating to the Security Deposit including, but not limited to. the return of the Security Deposit to the assignor. -8- F. No Encumbrance of Security Deposit: The Security Deposit shall not be mortgaged, assigned, nor encumbered by Tenant without the written consent of Landlord, and any attempt to do so shall be void. 10. FINISHING/PLANS AND SPECIFICATIONS. Except as hereinafter provided, Tenant, shall be solely responsible to finish, fixture, remodel, and improve the Leased Premises at Tenant's sole cost and expense under the following conditions: A. Stipulation Against Liens: For Landlord's protection, Tenant shall file appropriate stipulation(s) against mechanic's liens and obtain full and adequate liability and workmen's compensation insurance policies and provide Landlord with proof thereof, all of which shall be done prior to the commencement of the work or delivery of materials for the said finishings, fixtures, remodeling and improvements. B. Permits and Government Approvals: All finishing, fixturing, remodeling, improvements and construction shall be done in accordance with state and local laws and ordinances after the appropriate permits have been obtained by the Lessee at Lessee's sole expense. With respect to the foregoing, Tenant shall provide Landlord with written certification that Tenant's ovens and stoves to be utilized on the Premises are to Code and are installed in accordance with all applicable Codes. C. Landlord Approval of Plans and Specifications: No finishing, fixturing, remodeling, improvements and construction shall be done unless and until Landlord has given Tenant written approved Tenant's Plans and Specifications and proposed contractors, which approval shall not be unreasonably withheld. All plans and specifications must meet all requirement of Landlord's insurance carrier including , but not limited to any requirements for Safety for Cooking Equipment Standards. D. No Structural Alterations: There shall be structural alterations to the Leased Premises nor penetrations made in the roof unless approved by the Landlord, consent to which shall not be unreasonable withheld. E. Gas line: Landlord shall supply a gas line to the Premises. The costs that landlord incurs therefor shall be paid by Landlord, provided however, that Tenant shall be liable for twenty-six and twenty-four hundredths (26.24%) percent of said costs, which shall be amortized over a period of twenty four (24) months and billed to Tenant accordingly. -9- F. Devising Walls: Landlord shall remove the devising wall currently located in the central part of the Leased Premises. Tenant shall be responsible for the construction of the devising wall located on the right side of the Leased Premises and the upgrade of the devising wall located on the right side of the Leased Premises. Tenant's construction and upgrades of the devising walls aforesaid shall be in compliance with all applicable codes. 11. REPAIRS. The following shall apply regarding repairs to the Leased Premises: A. Tenant's Repairs: Except as otherwise herein provided, Tenant shall be responsible for all nonstructural maintenance, repairs, improvements and alterations to the interior of the Leased Premises. B. Landlord's Repairs: Except as otherwise herein provided, Landlord shall keep the exterior and structural portions of the Leased Premises, including roof and roof support, gutters, down spouts, foundation, and structural supports, structural portions of the floors and bearing walls in good order and repair, and shall also keep all plumbing pipes, tubes, and wiring outside of, but leading to or from, the Leased Premises in good order and repair. C. Paragraph 8 Repairs: The terms of subparagraphs A. and B. above foregoing notwithstanding, if any of the foregoing is governed by the provisions of Paragraph 6 herein, such as the inspection, repair, replacement and/or maintenance of (1) the heating, ventilating and cooling equipment installed on the Leased Premises, (2) the exterior doors and (3) all broken or damaged plate glass, then the inspection, repair, replacement and/or maintenance shall be performed by Landlord and billed to and paid by Tenant pursuant to the terms of Paragraph 8 herein. 12. USE OF THE PREMISES. The following shall apply regarding Tenant's use of the Leased Premises: A. Permitted Use: Tenant, upon receipt of proper governmental approvals, shall use the Leased Premises for the lirnited purpose of a restaurant. B. Future Use upon Consent: Any other use of the Leased Premises shall be permitted only with the written consent of the Landlord, which consent shall not be unreasonably withheld -10- C. Non Permitted Uses: Tenant shall not use nor permit the Leased Premises to be used for any immoral purposes such as a head shop, an adult bookstore or for prostitution of any nature to be determined in the Landlord's sole judgment. Tenant shall not use nor permit the Leased Premises to be used in violation of any ordinance, statute, rule or regulation concerning the manner of occupation of the Leased Premises under the jurisdiction of any lawful authority. D. Fire and Casualty Insurance Restrictions: Tenant shall not do, suffer to be done, or keep or suffer to be kept, anything in, upon, or about the Leased Premises which will contravene Landlord's insurance policies, including but not limited to public liability , fire and casualty insurance, or which will prevent Landlord from procuring such policies in companies acceptable to Landlord and at a rate consistent with the premiums paid on similar stores or premises in Good Hope Plaza. E. Payment of Increased Insurance Costs: In the event that Tenant's conduct and use of the Leased Premises shall cause the rate of fire or other insurance on the Leased Premises, or other stores or premises in Good Hope Plaza to be increased beyond the rates applicable for similar premises in Good Hope Plaza which do not engage in a similar activity, Tenant will pay the amount of such increase costs as they are finally determined by Landlord's insurance carrier within thirty (30) days of written notice and proof thereof. F. Maintenance: Tenant shall maintain its Leased Premises and its show windows in a neat and clean condition, and shall store all trash and garbage within the Leased Premises or in proper receptacles provided by Tenant. G. Operation of Business: Tenant shall continuously operate its business at usual and regular hours, a minimum of six (6) days a week, and shall at no time create or tend to create the impressions of permanent closing or non-use. 13. SIGNS. Tenant shall be permitted to place an appropriate business sign under the following conditions: A. Design: The size, design, and placement of the sign shall be done only with the written consent of Landlord, within specification to be provided by Landlord. B. Regulations and Laws: All sign design, construction and installation shall be -11- done in accordance with state and local laws and ordinances after the appropriate permits have been obtained by the Lessee at Lessee's sole expense. C. Costs: Tenant shall be solely responsible for the cost and payment of the sign and installation thereof. D. Installation: The cost of that installation shall be paid by Tenant. 14. PARKING LOT. In addition to the Leased Premises, Tenant shall have the right of nonexclusive use in common with others of parking areas, driveways, footways, and of such other facilities as may be designated from time-to-time by the Landlord, and shall abide by Rules and regulations concerning use of thereof as Landlord may make from time-to-time, provided that Landlord shall not make any designation nor rules which unreasonably interfere with Tenant's ability to operate a restaurant in the Leased Premises. 15. INSURANCE. The following shall apply regarding insurance requirements under this Lease: A. Tenant's Insurance: Tenant shalt procure, provide and pay for public liability insurance with an insurance company acceptable to Landlord and for the benefit of Tenant and Landlord to cover personal injury, property damage, or death in or about the Leased Premises and/or parking lot, to be in the amount of Five Hundred Thousand ($500,000.00) Dollars single injury or death; One Million Dollars ($1,000,000.00) total single occurrence; and Two Hundred Fifty Thousand Dollars ($250,000.00) property damage. Tenant shall also provide and pay for plate glass insurance on the Leased Premises. Tenant shall supply the Landlord with certificates evidencing that such coverages are in full force and effect with the Landlord being named as a party insured and/or loss payee therein and providing for a least ten (10) days advance written notice to Landlord of any alteration or termination thereof. B. Landlord's Insurance: Landlord shall procure fire and extended coverage insurance to a minimum of eight (80%) percent (but not more than one hundred (100%) percent of the replacement value of the Leased Premises. Landlord shall furnish a copy of the insurance statement each year to Tenant as soon as possible after receipt thereof. 16 WAIVER OF SUBROGATION. Each policy of fire insurance with extended coverage -12- carried by Tenant shall provide that the insurer waives any right of subrogation against the Landlord in connection with or arising out of any damage to such property contained in the Leased Premises caused by fire or other risks or casualty covered by such insurance. In no event shall Tenant or any person or corporation claiming an interest in the Leased Premises by, through or under Tenant claim, maintain or prosecute any action or suit at law or in equity against the Landlord for any loss, cost or damage caused by or resulting from fire or other risk or casualty in the Leased Premises or any part thereof, for which Tenant is or may be insured under a standard fire insurance policy with extended coverage whether or not carried by Tenant, and whether or not cause by the negligence of Landlord, or the agents, or servants, or employees of Landlord. 17. FIRE AND OTHER CASUALTY. The following shall apply to damage to the Leased Premises from fire or other casualty: A. Damages Landlord Repairs: If the Leased Premises are (1) damaged by fire or other casualty not occurring through any act on the part of Tenant, its agents, servants, or employees, and (ii) such damage is in an amount less than fifty (50%) percent of its fire market value, and (iii) can be repaired within one hundred twenty (120) days of the date of such occurrence, this Lease shall remain in full force and effect, and the Landlord shall promptly repair such damage at its expense and, in that event there shall be a proportionate abatement of rent for so much of the Leased Premises as may be untenantable during the period of repair or restoration. B. Damages/No Landlord Repair: If, in the opinion of a registered architect or engineer appointed by Landlord, (1) the Leased Premises are damaged by fire or other casualty to such an extent that the damage cannot be repaired or restored within one hundred twenty (120) days from the date of such occurrence or (ii) the Leased Premises are damaged in an amount over fifty (50%) percent of its fair market value or (iii) such damage is due to any act or failure to act on the part of Tenant, its agents, servants or employees, this Lease shall terminate at the option of the Landlord upon written notice given within forty-five (45) days after such occurrence. If such option is exercised, rent shall abate hereunder as of the date of such destruction or damage. If this option is not exercised by Landlord, then this Lease shall continue in full force and effect. C. Damages to Good Hope Plaza: If twenty-five (25°?1) percent or more of the buildings of which the Leased Premises form a part are damaged by fire or other casualty to such an extent that the same cannot be restored within one hundred -13- twenty (120) days of the date of such occurrence, this Lease may be canceled at the option of Landlord upon thirty (30) days written notice from the date of such occurrence, even though the Leased Premises occupied by Tenant have not become untenantable, and there shall be an adjustment to the rent to the date of termination. D. Damaiges During Last Three Years of Term: The foregoing notwithstanding, there shall be no obligation upon the part of Landlord to repair or rebuild during the last three (3) years of the term of this Lease unless Tenant shall, within fifteen (15) days after such occurrence, exercise any option to extend the term of this Lease that may be afforded to Tenant under the terms hereof. E. Limitation on Repairs: Landlord's obligation to repair or rebuild pursuant to this Paragraph shall be limited to a basic building and the replacement of any interior work which may have originally been installed at Landlord's cost. Except as herein provided, there shall be no obligation to repair or rebuild in the case of fire or other casualty. 18. LIABILITY. Landlord shall not be liable for any damage, loss or claim to person or property arising out of any of the following matters, unless as a result of Landlord's own negligence, and Tenant shall save Landlord harmless therefrom: A. Property Damage: Any damage to property on the Leased Premises belonging to Tenant, its employees, assignees, subtenants, concessionaires, licensees, or customers. B. Personal Injury: Any personal injuries which they may incur or sustain while on the Leased Premises. C. Service Interruption: The quality, quantity, impairment, interruption, stoppage, or other interference with service involving water, heat, gas, electric current for light and power and telephone or any other service. D. Business Interruption: Arising out of any interruption in Tenant's business operated in, from or out of the Leased Premises. 19. CONDEMNATION. In the event of condemnation or other taking by eminent domain of so much of the Leased Premises or of Good Hope Plaza as to render in the opinion of Landlord the Leased Premises untenantable, Tenant waives all claims or rights it might -14- have to or in any condemnation award and assigns the same to Landlord, other than such business disruption or relocation award that may be made in addition to any award for the taking. In such event, this Lease shall at the option of Landlord terminate as of the date Tenant is required to vacate the Leased Premises, or the Leased Premises are rendered untenantable as aforesaid. 20. SUBORDINATION. Tenant hereby agrees that its leasehold interest hereunder shall be subordinate to any mortgage now on or hereafter to be placed on the Leased Premises; provided, as a condition precedent to such subordination, each such mortgagee shall expressly covenant or each such mortgage shall expressly provide that so long as Tenant is not in default under this Lease, Tenant's quiet possession of the portion of the Leased Premises shall remain undisturbed, on the terms and conditions stated herein, whether or not the mortgage is in default and notwithstanding any foreclosure or other action brought by the holder of the mortgage in connection therewith. This subordination agreement shall be self-operative and no further instrument or certificate of subordination shall be required from Tenant, but Tenant shall provide such further instruments as may reasonable be requested by any mortgagee of Landlord. 21. ASSIGNMENT AND SUBLEASES. Tenant shall not assign Tenant's interest in this Lease nor sublet the Leased Premises without the prior written consent of Landlord, which consent shall not be unreasonably withheld. If an assignment or sublease is requested to be approved by Landlord, at Landlord's election and option, Landlord may require: A. Tenant and Guarantor to Remain Liable: Tenant and its guarantor, if any, shall remain liable for the balance of the Initial Lease Term or any renewal option elected; or B. Instrument: The assignee or subtenant shall deliver to Landlord an instrument wherein the assignee or subtenant assumes all of the obligations as a Tenant under the Lease, and G. Same Use: The use of the Leased Premises shall be the same as that permitted by the terms of this Lease. 22. REMOVAL OF PROPERTY. The following shall apply to removal of equipment, machinery, inventory (other than in the ordinary course of business), and fixtures: A. Direct Business Use: All machinery, equipment, inventory, and fixtures used directly in Tenant's business may be freely removed by Tenant at any time prior 15- to or subsequent to the expiration of this Lease, provided Tenant is not in default hereunder, and provided that if such removal shall cause any damage to the Leased Premises, Tenant will repair such damage at Tenant's expense. B. Other Moveable Trade Fixtures: All other trade fixtures which are movable and do not comprise part of the real estate may be removed by Tenant so long as Tenant restores the Leased Premises to its original condition at Tenant's expense. C. Non-Moveable Fixtures: At the termination of this Lease or any renewals thereof, all machinery, equipment, inventory and fixtures not used directly in Tenant's business and forming part of the real estate shalt become the property of Landlord, or at the option of Landlord, Tenant may remove said items so tong as prior to the expiration of any Lease Term Tenant restores the Leased Premises to its original condition at Tenant's expense. 23. MISCELLANEOUS OBLIGATIONS OF TENANT. During the term of this Lease Tenant shall: A. Payment of Rent: Pay all rent and all other charges herein provided when due. Acceptance of any late payments by Landlord shall not excuse Tenant from being required to make future payments on time and shalt not be a waiver of Landlord's rights and remedies; B. General Maintenance and Repair: Keep the Leased Premises clean and free from dirt or other refuse; replace all broken glass windows or doors; keep all drain pipes open; and otherwise keep the Leased Premises in good maintenance and repair, in the same condition it was at the beginning of this Lease, ordinary wear and tear and damage by accidental fire or other casualty not occurring through Tenant's negligence, excepted; C. Surrender: Promptly surrender the Leased Premises and all keys to Landlord upon the termination of the Lease; D. Fire Precautions: Use every reasonable precaution against fire; E. Governmental Regulations: Comply with the requirements of all public and governmental authorities and with the term of all Federal, state and local governmental law, regulations and ordinances applicable to Tenant's use of the Leased Premises and to pay all penalties, fines, costs or damages resulting from Tenant's failure to comply with these laws, regulations and ordinances; 16- .,";,?;,," F. Indemnification and Release _of_Liability: Be responsible and to relieve Landlord from any liability for any injury or damage to any person(s) or property on or in the Leased Premises, except for injury or damage resulting from Landlord's negligence. The foregoing shall include, but not be limited to, injury and damage resulting from any fire or other casualty, breakage or leakage from plumbing, water, rain, ice or snow; the accumulation of water, snow or ice whether said damage or injury is caused by the negligence of Landlord or Tenant or any other person whomsoever; G. Notice of Damage or Injury: Give Landlord immediate notice of any damage or injury to property or persons to or on the Leased Premises; H. Cleaning, upon Termination: Have the Leased Premises cleaned upon the termination of this Lease, or reimburse Landlord for the costs of that cleaning; I. Drain Lines: Keep all drain pipes within Leased Premises open and to pay the costs of cleaning waste from them; J. Water Lines: Keep all water supply lines within Leased Premises from freezing and to pay all costs arising out of any frozen pipes, including but not limited to damages resulting from frozen pipe breakage; K. Heatin : During the months of December 1 through March 30 to set all heat to no less than 60 degrees and to utilize the heating system in the Leased Premises and not to attempt to heat the Leased Premises with any alternative heating system; L. Renter's Insurance: Provide renter's insurance on Tenant's property and trade fixtures, Tenant understanding that Landlord's insurance does not cover any damages to Tenant's belongings; M. Damages and Cleaning: Pay for any damages, general cleaning and all other obligations under this Lease not covered by the Security Deposit; N. No Removal of Property: Not remove, or attempt to remove or indicate an intention to remove Tenant's goods or property from or out of the Premise, without having first paid and satisfied Landlord for all rent and other sums which may become due during the entire term of this Lease; -17- 0. No Vacating of Leased Premises: Except as may be permitted by law or in this Lease, not vacate or desert the Leased Premises during any term of this Lease or permit the same to be empty or unoccupied. If Tenant vacates or leaves the Leased Premises prior to the end of any applicable Lease Term, then Tenant forfeits and right, title, interest and claim in and to the Security Deposit, and in such event Landlord shall be entitled to retain the Security Deposit and shall not be required to apply the Security Deposit to the costs of the repair/ replacement of damages nor to any rent that remains outstanding. P. No Disturbing Noises: Within the context of a family oriented business, not make or permit any disturbing noises nor do or permit anything to be done that would disturb or interfere with the rights and convenience of other Tenants or neighbors to the Leased Premises; Q. Occupancy Limitations: Not occupy the Leased Premises for any other purpose than is permitted in the Lease; R. Fire Insurance: Not do or allow to be done, any act, matter or thing objectionable to the fire insurance company whereby the fire insurance or any other insurance shall become void or suspended, or the rate increased; S. Compliance with Landlord's Rules and Regulations: Comply with all further reasonable rules and regulations which Landlord may hereafter institute, provided, however, that such rules and regulations shall be reasonable and shall not discriminate amongst or between the various Tenants in the Shopping Center, and further shall not unreasonably interfere with the operation of Tenant's business. 24. LANDLORD'S RIGHTS. Landlord shall have the following rights: A. For Rent and Sale Signs: To display a "For Rent" or "For Sale" sign or both at any time, which signs may be placed on any part of the Leased Premises and made contain such information as Landlord may require; B. Showing to Purchasers or Tenants: To show the Lease Premises to prospective purchasers or Tenants at reasonable times upon 48 hours advance notification (oral) to Tenant; C. As is Condition/Defects: To deliver the Leased Premises to Tenant in its present -18- condition, Landlord being under no duty to make improvements or alterations hereafter. By signing this Lease Tenant acknowledges that Tenant has made an inspection of the Leased Premises, is renting it in "as is" condition, and finds the Leased Premises to be free from defects or damage; D. Inspection: To inspect the Leased Premises at reasonable hours upon forty-eight (48) hour advance notification (oral} to Tenant. E. Declaration of Default: To declare Tenant to be in default of this Lease upon the occurrence of any of the following events: 1. Failure to Pay Rent: Tenant's failure to pay the rent, additional rent or any other sums due hereunder within fifteen (15) days of its due date; 2. Failure to Vacate: Tenant's failure to vacate the Leased Premises at the end of any applicable Lease Term; 3. Failure to Comply with Other Terms: Tenant's failure to comply with any other of Tenant's obligations under this Lease, which default remains unremedied within fifteen (15) days of its occurrence; 4. Insolvency and Bankruptcy: Tenant become insolvent making an assignment for the benefit of creditors; becoming the debtor on any bankruptcy proceeding, voluntarily or involuntarily; having a judgment entered against Tenant which remains unpaid for a period in excess of thirty (30) days. The foregoing notwithstanding, upon the occurrence of a default, no right or option herein conferred on Landlord shall be exercised unless: (1) Landlord shall have given written notice thereof to Tenants specifying the nature of the default; and (2) in the event of the non-payment of rent Tenant within fourteen (14) days after receipt of such notice shall have failed to submit payment, or in the event of non-performance of any of its obligations under this Lease, Tenant shall have failed to commence remedy of the default specified in the Landlord's notice within thirty (30) days of receipt of such notice and thereafter complete such remedy with due diligence. 25. LANDLORD'S REMEDIES. Upon the occurrence of Tenant's default of the terms of this Lease, Landlord shall have the following remedies, which shall be cumulative and not in -19- the alternative: A. Claim Entire Rent Due: To declare the entire rent reserved for the full term of this Lease or any Renewal Term to become immediately due and payable and collectible; B. Termination of Lease: To terminate the Lease and to enter upon and repossess the Leased Premises without being considered a trespasser; C. Eviction and Notice to Vacate: To evict Tenant from the Leased Premises without providing Tenant with any notice, Tenant herewith waiving all notices or any notification period that may otherwise be required by virtue of any law; D. Disposal of Tenant's Property: To dispose of all of Tenant's property remaining on the Leased Premises after Tenant has vacated the Leased Premises and to charge Tenant for such removal cost and without any liability to account to Tenant for the value received for the items disposed; E. Collection of All Sums Due: To collect all sums due Landlord under this Lease in any manner provided for by law; F. Offset and Judgment: To offset against Tenant's Security Deposit and amounts due Landlord under this Lease and the amount of any damages that Landlord suffers as the result of Tenant's breach of this Lease and to secure judgment against Tenant for any excess damages not covered by said Security Deposit; G. Confession of Judgment for Amount's Due: To confess judgment against Tenant for any amounts owed by Tenant to Landlord under this Lease in which event Tenant authorizes the Prothonotary or any attorney to appear for and confess judgment against Tenant and in favor of Landlord for the whole amount of the rent and other sums that are due, together with an attorney's commission which shall be no less than the greater of $500.00 or twenty (20°n) percent of the amount found to be due and payable and costs of suit; H. Confession of Judgment for Possession: To confess judgment against Tenant in an amicable action in ejectment in which event Tenant hereby authorizes the Prothonotary or any attorney of record to appear for and to confess judgment in ejectment against Tenant and in favor of Landlord and to direct the immediate issuance of a writ of possession, all without notice or leave of Court and waiving -20- all irregularities; I. Assessment of Attorney's Fees and Costs: To assess Tenant all reasonable attorneys fees and costs incurred by Landlord in enforcing Landlord's rights under this Lease, including but not limited to all attorney's fees and costs incurred by Landlord in securing Tenant's removal from the Leased Premises and in securing payment of all sums due Landlord under this Lease, in which event Tenant specifically agrees to pay such attorneys fees and costs, which shall be no less than the greater of $500.00 or twenty (20%) percent of the amount found to be due and payable. J. Reletting Best Efforts: If the premises become vacant as a result of a default on Tenant's part, Landlord shall use its best efforts to relet the Premises in order to mitigate damages. 26. LITIGATION. In the event the Landlord or its agents, without fault on Landlord's part, becomes involved, through or on account of the terms of this Lease, or through or on account of the occupancy of the Leased Premises by Tenant, or the conduct of Tenant's business upon said Leased Premises, in any controversy or litigation or if such controversy or litigation throws any cloud or encumbrance upon the title of said Landlord to its property, Tenant shall, upon notice from Landlord, immediately take all necessary steps to remove Landlord and its property from any and at( connection with, or liability arising out of said controversy or litigation; Provided, however, that if Tenant believes it has a valid defense or claim in such controversy or litigation which Tenant desires to set up and maintain by and throughout Court procedure and litigation, Tenant shall have the right to do so, provided it first executes and delivers to Landlord an indemnifying bond with surety satisfactory to Landlord, and discharges any and all final judgments, liens, costs, damages, expenses and obligations of Landlord whatsoever, in or arising out of the controversy or litigation involving the Landlord or its agents, including all costs, expenses and attorney's fees incurred by Landlord or its agents in protecting their interest or defending themselves in such controversy or litigation. Tenant hereby waives and agrees that it will waive all rights to trial by jury in any and all legal proceedings arising under this Lease, out of the termination of this Lease, or with respect to the Leased Premises or Good Hope Plaza or the use thereof. 27. NOTICES. All notices or other communications pursuant hereto to any party shall be deemed given when deposited in the United States Mail, postage prepaid, certified or registered mail return receipt requested, addressed to the parties at the addresses set out below. -21- A. If to Landlord: Barnett Property Management, Inc. 25 Shady Lane Carlisle, PA 17013 B. If to Tenant: David J. Thomas 212 Locust Street, Suite 500 Harrisburg, PA 17101 6108 Carlisle Pike Restaurant Co. LLC 212 Locust Street, Suite 500 Harrisburg, PA 17101 28. CONSTRUCTION. Whenever the context so requires, the feminine gender shall be substituted for the masculine, the masculine for the feminine vice versa. Paragraph headings are for convenience only and do not constitute a part of this Agreement.. The following words shall be the meaning indicated unless clearly indicated otherwise by the context: (1) "Term" shall include the original term and all renewals thereof; (2) "Good Hope Plaza" shall be all of the parcel upon which the Leased Premises are located, and all stores therein. 29. INTEGRATION. This Lease contains the entire understanding between the parties hereto, and supersedes any prior written or oral agreements between them respecting the within subject matter. There are no representations, agreements, or understandings, oral or written, between and among the parties hereto relating to the subject matter of this Agreement, which are not fully expressed herein. 30. SEVERABILITY. If any term, condition, clause or provision of this Agreement shall be determined or declared to be void or invalid in law or otherwise, then only that term, condition clause or provision shall be stricken from this Agreement and in all other respects this Agreement shall remain valid and continue in full force, effect and operation. Likewise, the failure of either party to meet his or her obligations under this Agreement under any one or more of the paragraphs hereunder, with the exception of the satisfaction of a condition precedent, shall in no way avoid or alter the remaining obligations of the parties. 31. GOVERNING LAW. This Agreement shall be construed in accordance with the laws of the Commonwealth of Pennsylvania. 32. QUIET ENJOYMENT. Tenant shalt and may peacefully and quietly have, hold and enjoy -22- the Leased Premises for the intended purposes hereinbefore described. Landlord will use its best efforts to ensure that the actions of other Tenants do not interfere with Tenant's right of quiet enjoyment. 33. CHANGES TO THE COMMON AREAS: Wherever in this Lease Landlord is granted the right to make changes to the common areas, Landlord shall not exercise those rights if such action would adversely affect Tenant nor change and affect the nature and quality of its tenancy, including, but not limited to, services or access to the building on the Leased Premises, access to or availability of parking, driveways, walkways, landscaping, restroom facilities, or the like. Further, Landlord will not take any action that would further impair the visibility of the Leased Premises from the Carlisle Pike. IN WITNESS WHEREOF, the parties hereto, intending to be legally bound, place their hands and seats this day of 200y Witness/Attest I ? - BARNETT PROPERTY MANAGEMENT, INC. By: CURTIS M. BARNETT, PRES. Witness/Attest 6108 CARLISLE PIKE RESTAURANT CO., LLC (SEAL) (SEAL) By: DAVID J. THOMAS (SEAL) DAVID J. (THOMAS -23- EXHIBIT "B" 1/4/08 SETTLEMENT AGREEMENT ORIGINAL Lessor: Barnett Property Management, LLC Lessee: David J. Thomas and 6108 Carlisle Pike Restaurant Company, LLC Leased Property: Suite 108-112 Good Hope Plaza, Mechanicsburg, PA 114/08 SETTLEMENT AGREEMENT The following are the terms agreed upon by Curtis Barnett on behalf of Barnett Property Management, LLC and David J. Thomas, individually and on behalf of 6108 Carlisle Pike Restaurant Company, LLC on January 4, 2008 regarding the past due amounts owed by Lessee to Lessor for the lease of Suite 108-112 Good Hope Plaza: 1. By 5pm on January 10, 2008, Lessee will pay to Lessor's agent the amount of $6,466.75. This amount represents: 2. a. $2,000.00 towards the 2007 CAMS (4th quarter 2006 CAMS and 1St - 3rd quarter 2007 CAMs; b. $3,738.33 for rent due for January 2008; C. $728.42 in past due rent and rent late charges for period 2005-2007. 3. Lessee will pay Lessor's Agent the required monthly rent (currently $3,738.75) by the 10th of the month starting with the rent due for February, 2008. The rent is still due on the 1St of the month, but no late fees will be charged, and no default wilt be deemed to have occurred, if paid by the 10th 4. Lessee will pay Lessor's agent $2,000.00 per month by the 10th day of the month starting in February 2008, to be applied towards the CAMs due for the year (4th quarter CAMS from prior year and 1st - 3rd quarter CAMs for current year). The Cam Payment is due on the 1st of the month, but no late fees will be charged, and no default will be deemed to have occurred, if paid by the 10th 5. If Lessee pays the amounts due under paragraphs 3 and 4 above in a single check, and such payment is less than the total amount then due, the payment so made shalt be applied 1 st to rent, next to late charges and penalties, and last to CAMs. 6. Lessee will pay Lessor's agent $24,794.88 for past due CAMs and CAM late Charges (incurred for 2007 3rd quarter CAMs or prior thereto) together with 8% interest thereon in quarterly installments in accordance with the calculations set forth on Schedule "A" attached hereto and made a part hereof. Any payment not paid by the due date reflected on Schedule "A" will be considered to be a default of the Lease and this Compromise Settlement. Payments shall be applied 1St to interest, next to late fees and penalties and last to principal. 7. If Lessee fails to make any payments due under the Lease as modified hereby, by the due dates provided in the Lease as may be modified herein, then in addition to any remedies provided in the Lease, Lessee shall owe Lessor the amounts specified in Schedule "B", less any amounts paid by Lessee on or after the date hereof. For that purpose the amounts to be credited to Lessee shall not include any interest payments charged and paid in accordance with Schedule "A". 8. Acceptance of any payment after its due date shall not excuse, nor be a waiver of, Lessee's default and shall not be deemed to be a waiver of any of the rights and remedies provided in the Lease or as herein provided. 9. All Payments herein provided or provided by the Lease shall be made payable to Barnett Property Management, LLC, and detivered to Lessor's Agent, Diane G. Radcliff, Esquire, at 3448 Trindle Road, Camp Hill, PA 17011. 10. Time is and shall be of the essence for all payment herein provided. IN WITNESS WHEREOF, the parties hereto, intending to be legally bound hereby, and acknowledging that they have read, approved and agreed to the above referenced terms, have set their hands and seals the day and year below written. WITNESS: (SEAL) t3rane G. dcliff, Esquire, Ae t F©.c$arnet rope ty Manageme t, LLC Dated: J4 d (SEAL) David . as, in u nd on behalf of 6108 Carlisle Pike Restaurant Company, LLC Dated: °a 1,5 6 ° 6 SCHEDULE "A" Dave Thomas - Amortization of Back Cams (Compromise Amount) Date Interest @ 8% Principal Payment Balance Beginning Balance 24,794.88 3.31.08 495.90 3,099.36 3,595.26 21,695.52 6.30.08 433.91 3,099.36 3,533.27 18, 596.16 9.30.08 371.92 3,099.36 3,471.28 15,496.80 12.31.08 309.94 31099.36 3,409.30 12,397.44 3.31.09 247.95 3,099.36 3,347.31 9,298.08 6.30.09 185.96 3,099.36 3,285.32 6,198.72 9.30.09 123.97 3,099.36 3,223.33 3,099.36 12.31.09 61.99 3,099.36 3,161.35 0.00 Thomas Lease Good Hope Plaza - Past Due Amounts Description Subtotal Total Water Pit $2,985.85 11/07 Rent $3,323.33 12/07 Rent $3,323.33 1/08 Rent $3,738.75 Less 2006 Food Charges ($463.22) Less 2007 Food Charges ($5,117.96) November Rent Payment ($3,323.33) Subtotal Past Due Rent $4,466.75 To be paid today ?Z1Z1Z11Z1ZZ1Z111Z11111Z1Z1ZZ 1ZZZ11ZZ11ZZZZ ZZl1Z1Z11Z1ZZZ 9.1.05-12.31.07 Rent One Time Late Fees $4,500.00 9.1.05-12.31.07 Daily Late Fee $1,410.00 9.1.05-12.31.07 Bank Charges for NSF 40.00 Subtotal 9.1.05-12.31.07 Rent Late Fees Et Charges $5,950.00 $5,950.00 2005-2006 Past Due Cams $7,285.75 2005-2006 Cams Late Fees 2,896.96 Subtotal 2005-2006 Cams 8t Late Fees $10,182.71 $10,182.71 2007 15` Quarter Cams $101593.17 20072 nd Quarter Cams $6,987.03 20073 rd Quarter Cams $2,428.93 2007 Cam Payment 10.10.07 ($2,500.00) 2007 Cam Late Fees $1,059.32 2007 Cam Late Fees $698.70 Subtotal 2007 Cams through 3rd Quarter $18,568.45 $18,568.45 Total Past Due Amounts $34,701.16 EXHIBIT "C" DECEMBER 16, 2008 DEFAULT/CURE NOTICE DIANE G. RADCLIFF, ESQUIRE 3448 Trindle Road, Camp Hill, PA 17011 Phone: 717-737-0100 Fax: 717-975-0697 E-mail: dianeradcliff@comcast.net December 16, 2008 Mr. David J. Thomas 110 Walnut Street Lemoyne, PA 17043 Re: Lease for Suite 108-112 Good Hope Plaza Default Notice Dear Dave: I am most disappointed to once again to have to contact you regarding your default in your Lease obligations. I thought that we had finally come to an understanding of the need to pay on time and that you should contact me should matters arise that prevented a timely payment. Most recently I have been advised that you contacted my paralegal and asked to be able to pay your December rent on December 12, 2008 instead of December 10, 2008 because of a change in banks. That 2 day extension was granted for that purpose only. In spite of our cooperation, and phone calls made to you on Friday, December 12, 2008 and Monday, December 15, 2008, we have yet to receive your December rental payment. This is unacceptable. This letter is, therefore, to advise you that pursuant to the provisions of paragraph 24E of your Lease with Barnett Property Management for the lease of Suite 108-112, Good Hope Plaza, 6108 Carlisle Pike, Mechanicsburg, Pennsylvania, 17050 the Landlord elects to declare, and does hereby declares, you to be in default of the Lease in that you have failed to your rent for the month of December, due on December 1, 2008. Pursuant to other terms of the Lease you are hereby given this written notice of your default and are advised that you have 14 days from today's date, December 15, 2008, to cure your default by submitting and paying to this office the following amounts: December 2009 Rent $5,738.75 One Time Late Fee for rent not paid by 12/10/08 $250.00 Daily Late Fees @ $10/day starting as of 12/16/08 $10.00 Total Due as of 12/16/08 $5,998.75 If you fail to make the above calculated payment of $5,998.75 together with the daily late fee arising Page 2 David J Thomas December 16, 2008 for every day after 12/16/08, the Landlord will, without further notice, exercise all rights and remedies provided in paragraph 25 of the Lease, including but not limited to declaring all rent for the remaining term to be due and payable, collecting the same by any means and evicting you from the premises. Since you have made a substantial investment in this leased property, I trust that you will govern your self appropriately. Very truly yours, DIANE G. RADCLIFF, ESQUIRE DGR/dr Enclosure(s): Transmitted by Regular & Certified Mail to David J. Thomas, 110 Walnut Street, Lemoyne, Pennsylvania, 17043 cc: Barnett Property Management, Inc. by mail File EXHIBIT "D" DECEMBER 31, 2008 LETTER DIANE G. RADCLIFF, ESQUIRE 3448 Trindle Road, Camp Hill, PA 17011 Phone: 717-737-0100 Fax: 717-975-0697 E-mail: dianeradcliffCcomcast.net December 31, 2008 Mr. David J. Thomas 110 Walnut Street Lemoyne, PA 17043 Re: 108-112 Good Hope Plaza Lease Dear Dave: You have failed to make your December 2008 lease payment by December 30, 2008, the last day of the 14 day cure period. As a result, I will be proceeding with filing the eviction documents with the court on Monday, January 5, 2008. I would be willing to extend your cure payment date to noon on Monday, January 5, 2009 provided that you also pay January's rent @ 5,823.22 and the past due cam payment of $3,409.30 due on December 31, 2008 by noon on Monday, January 5, 2009. Thus with all late charges in order to extend the cure period $15,430.27 must be paid by noon on January 5, 2009, calculated as follows: December base rent $5,738.75 December Rent one time late charge $250.00 December Rent daily late fee C 10/day 12/16-1 /4/09 (20 days) $200.00 December 31, 2008 past Due Cam Payment $3,409.30 January Rent $5,832.22 Total due as of 1/4/08 $15,430.27 Should you have any questions or comments regarding this letter, do not hesitate to Page 2 Dave Thomas December 31, 2008 contact me. My office will be open on Friday January 2, 2009 to receive your calls. Very truly yours, DIANE G. RADCLIFF, ESQUIRE DGR/dr cc: Curtis M. Barnett, DVM, BPM Fi Le TRANSMITTED BY MAIL EXHIBIT "E" BAD CHECK #8170 ?ul U; E%.- cc rn N Ln O 0 O O N IL LD .a ti s. N N o- 1 ti ti rm .m rm ti J O cl- O 0 EXHIBIT "F" BAD CHECK #8270 rti I Fa o ru m ruC7 1 -0 Pru i Lo C? r o ?m 5569 N K'g w a t 9Q?5Q>9E05TE'CEQ< 4 P r_?Lff77 O N Ip Yn 1 i r'u S rV r1'1 n, r J o rn °- rv NG Q ? N ¦? O O ru '` ?, W M Q O.tll? !6 t1J -2 0 Zcf cc 1 j.!5w oqqQ 09ZE90050605569 ',? g Lf b00215q!10 [9EOS2E2E0] = -- O ._ ru - Np a F CQ * tr 'n >- ror- ZW O A C7 ?3U ° 5 C3 a- 0 H v=oR Q" _ 9 h 6 E 6 *QhpOQQ'CEQ pNIr oY ?v> ??? 6Q02JE65 OqE*O GQQQgEQ* 0Nr- -jY3y zM 60 0 2/R21R QQQQOQQQ T E 2 m`rq M 4)0 =0 95OLhgRa? 4h2 oDE r4 ? N= 6 Q'CE O ooa y3ad ?Z a062LLE09T*GppQQ * /91110 EXHIBIT "G" JANUARY 20, 2009 LETTER DIANE G. RADCLIFF, ESQUIRE 3448 Trindle Road, Camp Hill, PA 17011 Phone: 717-737-0100 Fax: 717-975-0697 E-mail: dianeradcliffCcomcast.net January 20, 2009 Mr. David J. Thomas 110 Walnut Street Lemoyne, PA 17043 Re: Good Hope Lease Barnett Property Management LLC, Landlord Bad Check Amount: $5,738.75 Dear Mr. Thomas: Our records indicate as payment for rent for the month of December 2008, you provided us with your check in the amount of $5,738.75 . This check was returned by your bank, marked "NSF" or "insufficient funds". Because this check was dishonored by the bank against which it was drawn, a service charge of $20.00 is now due. Therefore as of the date of this letter the following amounts are now due for the December rent: December Base Rent $5,738.75 December Rent daily late fee @ $10/day 1/5/09 to 1/20/09 (16 days) $160.00 Bank Service Charge $20.00 Total due as of 1/20/08 $5,918.75 Daily Fee starting on 1 /21 /09 until above is paid in full $10.00 Under Section 4105 of the Pennsylvania Crimes Code a person commits the criminal offense of "Bad Checks" if he issues or passes a check knowing that it will not be honored by his bank. Under Section b of that Statute, the person writing the check is presumed to know the check will not be paid if the payment is refused by his bank or financial institution within thirty days after issuance and the person fails to make the check good within ten days after receipt of notice of the refusal to make payment. Page 2 David Thomas Re: December 2009 Rent January 20, 2009 This letter is, therefore, to provide you with notice under 18 Pa.C.S.A. Section 4105(b) that your check has been dishonored and advise you that you have 10 days from the date of this letter to make that check good by paying the amount of $5,918.75. If you fail to make this payment by January 31, 2009, the following are the consequences that can and will result: 1. You will be charged with the offense of issuing a bad check under Section 4105; 2. You will have to hire an attorney and pay the fees charged by that attorney to represent you in that criminal action; 3. You may be convicted of the offense under Section 4105; 4. If convicted, you will forever have a criminal record. This criminal record can affect your ability to obtain future employment and will adversely affect your credit. 5. Whether convicted or not, you will you be required to pay the above claimed amount of $5,918.75 to my client. 6. If convicted, you will be required to pay court costs and a fine. You may also be sentences to a term of imprisonment. You can see from reviewing the above consequences, it is to your advantage to pay this $5,918.75 on or before January 31, 2008. 1 am, therefore, providing you with the following instructions regarding this payment: Payment should be in the form of cash, bank check, cashier's check or other certified funds. Personal checks will not be accepted. ,k Any payment other than in cash should be made payable "Barnett Property Management". Payment should be sent to this office at the address listed above. ,k Payment must be received by this office on or before January 31, 2009. If Page 3 David Thomas Re: December 2009 Rent January 20, 2009 you are going to mail your payment, please allow enough time so that it is received by this office no later than January 31, 2009. No further time extensions for payment will be granted. You must strictly comply with all terms set forth in this letter if you expect to avoid the above stated consequences. Very truly yours, DIANE G. RADCLIFF, ESQUIRE DGR/dr Transmitted to Addressee by regular mail and certified mail #7005 3110 0004 2994 4498 cc: Barnett Property Management, LLC Wencl File EXHIBIT "H" JANUARY 23, 2009 LETTER DIANE G. RADCLIFF, ESQUIRE 3448 Trindle Road, Camp Hill, PA 17011 Phone: 717-737-0100 Fax: 717-975-0697 E-mail: dianeradcliffCcomcast.net January 23, 2009 Mr. David J. Thomas 110 Walnut Street Lemoyne, PA 17043 Re: Good Hope Lease Barnett Property Management LLC, Landlord Bad Check No.: 8207 Bad Check Amount: $6,122.22 Dear Mr. Thomas: Our records indicate as payment for rent for the month of January 2009, plus all applicable late Fees, you provided this office with your check No. 8207 in the amount of $6,122.22. This check was returned by your bank, marked "NSF" or "insufficient funds". Because this check was dishonored by the bank against which it was drawn, a service charge of $20.00 is now due. Therefore as of the date of this letter the following amounts are now due for the January rent: January Base Rent $5,823.22 January One Time Late Fee $250.00 January Rent Daily Late Fee @ $10/day 1/11/09 to 1/23/09 (16 days) $130.00 Bank Service Charge $20.00 Total due as of 1/23/09 $6,223.22 Daily Fee starting on 1 /21 /09 until above is paid in full $10.00 Under Section 4105 of the Pennsylvania Crimes Code a person commits the criminal offense of "Bad Checks" if he issues or passes a check knowing that it will not be honored by his bank. Under Section b of that Statute, the person writing the check ?46 Page 2 David Thomas Re: January 2009 Rent January 23, 2009 is presumed to know the check will not be paid if the payment is refused by his bank or financial institution within thirty days after issuance and the person fails to make the check good within ten days after receipt of notice of the refusal to make payment. This letter is, therefore, to provide you with notice under 18 Pa.C.S.A. Section 4105(b) that your check has been dishonored and advise you that you have 10 days from the date of this letter to make that check good by paying the amount of $5,918.75. If you fail to make this payment by February 2, 2009, the following are the consequences that can and will result: 1. You will be charged with the offense of issuing a bad check under Section 4105; 2. You will have to hire an attorney and pay the fees charged by that attorney to represent you in that criminal action; 3. You may be convicted of the offense under Section 4105; 4. If convicted, you will forever have a criminal record. This criminal record can affect your ability to obtain future employment and will adversely affect your credit. 5. Whether convicted or not, you will you be required to pay the above claimed amount of $6,223.22 to my client plus $10.00 per day for every day after 1/23/09 until the amount due is paid in full. 6. If convicted, you will be required to pay court costs and a fine. You may also be sentences to a term of imprisonment. You can see from reviewing the above consequences, it is to your advantage to pay this $6,223.22 plus $10.00 per day for everyday after 1/23/09 on or before February 2, 2009. 1 am providing you with the following instructions regarding this payment: ?r Payment should be in the form of cash, bank check, cashier's check or other certified funds. Personal checks will not be accepted. Any payment other than in cash should be made payable "Barnett Property Page 3 David Thomas Re: January 2009 Rent January 23, 2009 Management". Payment should be sent to this office at the address listed above. ?t Payment must be received by this office on or before February 2, 2009. If you are going to mail your payment, please allow enough time so that it is received by this office no later than February 2, 2009. No further time extensions for payment will be granted. You must strictly comply with all terms set forth in this letter if you expect to avoid the above stated consequences. Very truly yours, DIANE G. RADCLIFF, ESQUIRE DGR/dr Transmitted to Addressee by regular mail and certified mail cc: Barnett Property Management, LLC w/encl File t 46 EXHIBIT "I" FEBRUARY 18, 2009 LETTER . ? J DIANE G. RADCLIFF, ESQUIRE 3448 Trindle Road, Camp Hill, PA 17011 Phone: 717-737-0100 Fax: 717-975-0697 E-mail: dianeradcliff@comcast.net February.18, 2009 Mr. David J. Thomas 6108 Carlisle Pike Restaurant Company, LLC 110 Walnut Street c/o David J. Thomas Lemoyne, PA 17043 110 Walnut Street Lemoyne, PA 17043 Mr. David J. Thomas 6108 Carlisle Pike Restaurant Company, LLC Suite 108-112 Good Hope Plaza Suite 108-112 Good Hope Plaza 6108 Carlisle Pike 6108 Carlisle Pike Mechanicsburg, PA 17050 Mechanicsburg, PA 17050 Re: Lease of Suite 108-112 Good Hope Plaza Default Notice Gentlemen: Pursuant to the terms of the January 4, 2008 Settlement Agreement, if you as tenants failed to make any payments due under the 2/1 /20058 Lease by the due dates as modified in the 1/4/2008 settlement agreement (rent to be paid by the 10th of the month), then you owe your landlord all amounts calculated in accordance with Schedule B of the 1/4/2008 Settlement Agreement. As you are aware you failed to make the rental and cam. payments due on December 1, 2008 and January 1, 2009. Therefore in addition to any past due rental amounts, you now owe the amount of $22,303.72 as calculated on the attachment for late fees and past due cam charges calculated in accordance with the 1/4/08 Agreement, particularly schedule B of that Agreement. This letter is, therefore, to advise you that pursuant to the provisions of paragraph 24E of your Lease with Barnett Property Management for the lease of Suite 108-112, Good Hope Plaza, 6108 Carlisle Pike, Mechanicsburg, Pennsylvania, 17050, the Landlord elects to declare, and does hereby declare, you to be in default of the Lease for your failure to make the payment of the amounts due as described on the attachment. Pursuant to Page 2 Dave Thomas February 18, 2009 other terms of the Lease, you are hereby given this written notice of your default and are advised that you have 14 days from today's date, being on or before March 4, 2009, to cure your default by submitting and paying to this office the amount of $22,303.72. This payment must be made in certified check or other guaranteed funds. Personal or business checks will not be accepted. This default notice is not intend to be a waiver of any prior default nor a waiver of landlord's rights under the lease for such prior default including, but not limited to your default arising out of the non-payment of the rent late fees and cams due for the months of December 2008 and January 2009. On the contrary, Landlord specifically retains all rights and remedies provided in the lease arising out of that prior default including but not limited to the right to evict you from the premises, by confession of judgment or otherwise, and to cotlect all sums due and owing. Should you want to discuss the terms of this letter do not hesitate to schedule a meeting with me. Such discussions will not, however, include any reduction of the sums now due and-owing the Landlord or any installment payment of said sums. Therefore, unless you have the financial ability to make full payment of all sums, do not waste my time. Very truly yours, DIANE G. RADCLIFF, ESQUIRE DGR/dr cc: Barnett Property Management, Inc. Fi le TRANSMITTED BY REGULAR MAIL AND CERTIFIED MAIL ' f ..1 Page 3 Dave Thomas February 18, 2009 SCHEDULE "B" Calculations Thomas Lease Good Hope Plaza - Past Due Amounts Description Subtotal Total 9.1.05-12.31.07 Rent One Time Late Fees $4,500.00 9.1.05-12.31.07 Daily Late Fee $1,410.00 9.1.05-12.31.07 Bank Charges for NSF 40.00 Subtotal 9.1.05-12.31.07 Rent Late Fees & Charges $5,950.00 $5,950.00 ZZ1111Z11ZX11Z11ZZZ11ZZ11111Z ZZZZZZZIIZZZ?11 1ZZZ11Z11Z1ZZZZ 2005-2006 Past Due Cams $7,285.75 2005-2006 Cams Late Fees 2 896.96 Subtotal 2005-2006 Cams & Late Fees $10,182.71 $10,182.71 fffffffffffffffffffffffffffff fffffffffffffff ffffffffffffff 2007151 Quarter Cams $10,593.17 2007 2" Quarter Cams $6,987.03 2007 V Quarter.Cams $2,428.93 2007 Cam Payment 10.10.07 ($2,500,00) 2007 Cam Late Fees $1,059.32 2007 Cam Late Fees. 698.70 Subtotal 2007 Cams through 3' Quarter $18,568.45 $18,568.45 fffffffffffffffffffffffffffff fffffffffffffff ffffffffffffff Total Past Due Amounts $34,701.16 fffffffffffffffffffffffffffff fffffffffffffff ffffffffffffff 3.31.08 payment $3,099.36 6.30.08 payment $3,099.36 9.30.08 payment $3,099.36 12.31,08 payment $3,099.36 Total Payments $12,397.44 ($12,397.44) TOTAL AMOUNT NOW DUE $22,303.72 A O a- m ti rU rU P~ s . g tT' Certified Fee a • ?0 m Postmark C3 Retum Receipt Fee (E ant Require(f) Here C3 Restricted =silvery Fee ?[ 1 D (Endorsement Required) O F rr%_ ees Total Postage & C3 `' 0 ?• 'fir / / I /m7Q,6 r ................................ _.°- °-- I? C3 - - -_ . .......... Street ;dpt 170:; or PO Box No. ..°_..._..°_ .. (/t?CZ ! /LC t cn, scare, ziP*4 e. ,q_ 7 , 3 ¦ Complete Items 1, 2, and 3. Also complete Item 4 If Restricted Delivery is desired. m Print your name and address on-the reverse so that we can return the card to you. ¦ Attach this card to the back of the mailpiece; or on the front if space permits. 1. Article Addressed to: Mr. David J. Thomas 110 Walnut Street Lemoyne, PA 17043 2. Art)cle Number MwIsfer bom servloe !a6 PS Form 3811, February 2004 A. Signature X p ZOA dresses B. R"ed nfed Name) C. D b of ivery 1113 FV P7 D. Is delivery address different from Item 1? ? Y If YES, enter delivery address below. ? No 3. Service Type ? Certmed mail ? Express mail ? Registered ? Return Receiptfor Merchandise ? Insured Mall ? C.O.D. 4. Restricted Delivery? (Extra Fee) ? Yes 7007 0710 0003 9222 4390 Domestic Return Receipt '. s O N N $ - 7a IU postage Er Certified Fee pS • ?0 m postrnark p 0 Retum Recelpt.Fee (Endorsement Required) Here', ^ ` / 1 0 Restrkted Delivery Fee uired) (Endorsement Req o ,F O C3 & Fees t P 1 13 ? r. os age Total. ?.J - O q /??y / Q I/S/ ?L? C /??? C3 _ (!_ t.t-FY ?` IU ?1?r!(li .. 1 ?fiiWEApr NF. /, J~ ---- trYY? S- 171- orPOBoxNo. ---L!_L2_. .? . ... --- -------------------------- - - A+a r city siege:z ?t.r77o-y,?e_ 7 043 ¦ Complete Items 1, 2, and 3. Also complete Item 4 if Restricted Delivery Is desired. ¦ Print your name and address on the reverse so that we can return the card to you. ¦ Attach this card to the hack of the malipiece, or on the front if space permits. A. Signature x ? Agent Addressee I ( Name) ?°? a o?Sj Delivery 41 B 1 =` 4 D. Is delivery address dHfereat from Rom 1? ? Yes If YES, eriter delivery address below: ? No 110 Walnut Street 3. Service TW9 Lemoyne,. PA 17043 ? certwed men ? Express mail ? Registered ? Retum Recelpt'for Merchandise ? Insured mail ? C.O.D. 4. Restricted Dellvetyl (Extra Fee) ? Yes 2` ArtkdeNumber rrmnslbr from servbe 7007 0710 0003 9222 4406 1. Article Addressed to. 6108 Carlisle Pike Restaurant Company, L•LC c/o David J. Thomas Ps Form 3811, February 2004 Domestic Return Receipt 102595-02-M-l W t OF THE orrto VARY ZDD APR -2 PIS 2- 45 .Qa &7-1? Certification of Address Prepared By: Diane G. Radcliff, Esquire 3448 Trindle Road, Camp Hill, PA 17011 Supreme Court ID # 32112 Phone: 717-737-0100 • Fax: 717-975-0697 • Email: dianeradcliff @comcast.net Attorney for Plaintiff IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA BARNETT PROPERTY MANAGEMENT, INC. . Plaintiff NO. CIVIL TERM V. CIVIL ACTION - LAW DAVID J. THOMAS and 6108 CARLISLE PIKE RESTAURANT COMPANY, LLC IN EJECTMENT Defendants CERTIFICATION OF ADDRESSES I, Diane G. Radcliff, Esquire, attorney for the Plaintiff, hereby certify that the addresses of the Defendants in the above captioned matter are as follows: David J. Thomas 6108 Carlisle Restaurant Company, LLC 110 Walnut Street 110 Walnut Street Lemoyne, PA 17043 Lemoyne, PA 17043 DIAN . RA CLIFF, ESQUIRE oad Camp Hill, PA 17011 Phone: (717) 737-0100 Supreme Court ID # 32112 Attorney for Plaintiff ?f 6 M-ARY ZON APR -2 PM -3: 11 COUNTY PPM0. Notice of Judgment Prepared By: Diane G. Radcliff, Esquire 3448 Trindle Road, Camp Hill, PA 17011 Supreme Court ID # 32112 Phone: 717-737-0100 • Fax: 717-975-0697 • Email: dianeradcliff ®comcast.net Attorney for Plaintiff IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA BARNETT PROPERTY MANAGEMENT, INC. Plaintiff NO. o q - --10 9? CIVIL TERM V. CIVIL ACTION - LAW DAVID J. THOMAS and 6108 CARLISLE PIKE RESTAURANT COMPANY, LLC IN EJECTMENT Defendants NOTICE UNDER RULE 2973.3 OF JUDGMENT AND EXECUTION THEREON NOTICE OF DEFENDANT'S RIGHTS To: 6108 CARLISLE PIKE RESTAURANT COMPANY, LLC c/o David J. Thomas 110 Walnut Street Lemoyne, PA 17043 A judgment for possession of real property has been entered against you and in favor of the Plaintiff without prior notice and hearing based on a confession of judgment contained in a promissory note or other document allegedly executed by you. The court has issued and the Sheriff has served a writ of possession which directs the Sheriff to remove you from possession of the real property. You may have legal rights to defeat the judgment or to prevent your being removed from the property or to regain possession of the property if you have been removed, if you did not voluntarily, intelligently and knowingly give up your constitutional right to notice and hearing prior to the entry of judgment or if you have defenses or other valid objections to the judgment. ANY PETITION SEEKING RELIEF FROM THE JUDGMENT AND TO REGAIN POSSESSION MUST BE FILED WITHIN THIRTY (30) DAYS AFTER THE DATE ON WHICH THIS NOTICE IS SERVED ON YOU OR YOU MAY LOSE YOUR RIGHTS. If you have been removed from the property without notice or the opportunity for a hearing, you have a right to a prompt court hearing if you claim that you did not voluntarily, intelligently and knowingly give up your rights to notice and hearing prior to the entry of the judgment. If you wish to exercise this right, you must immediately fill out and sign the request for hearing which accompanies the writ of possession and deliver it to the Sheriff of Cumberland County at the Cumberland County Courthouse, One Courthouse Square, Carlisle, PA 17013. YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW. THIS OFFICE CAN PROVIDE YOU WITH INFORMATION ABOUT HIRING A LAWYER. IF YOU CANNOT AFFORD TO HIRE A LAWYER, THIS OFFICE MAY BE ABLE TO PROVIDE YOU WITH INFORMATION ABOUT AGENCIES THAT MAY OFFER LEGAL SERVICES TO ELIGIBLE PERSONS AT A REDUCED FEE OR NO FEE. Cumberland County Bar Association 32 South Bedford Street Carlisle, PA 17013 Telephone No. (717) 249-3166 E G. D IFF, ESQUIRE Tri n ad Camp Hill, PA 17011 Phone: (717) 737-0100 Supreme Court ID # 32112 Attorney for Plaintiff Petition to Strike Judgment Prepared Sy: Diane G. Radcliff, Esquire 3448 Trindle Road, Camp Hill, PA 17011 Supreme Court ID # 32112 Phone: 717-737-0100 • Fax: 717-975-0697 • Email: dianeradcliff @comcast.net Attorney for Plaintiff IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA BARNETT PROPERTY MANAGEMENT, INC. Plaintiff NO. 09-1005 CIVIL TERM V. DAVID J. THOMAS and CIVIL ACTION - LAW 6108 CARLISLE PIKE RESTAURANT COMPANY, LLC IN EJECTMENT Defendants : PETITION TO STIKE JUDGMENT REQUEST FOR PROMPT HEARING 1, David J. Thomas, sole owner of and duly authorized to act on behalf of 6108 Carlisle Pike Restaurant Company, LLC, do hereby certify that I did not voluntarily, intelligently and knowingly give up my right to notice and hearing prior to the entry of judgment. I petition the Court to strike the judgment on this ground and request a prompt hearing on this issue. I verify that the statements made in this Request for Hearing are true and correct. I understand that false statements herein are made subject to the penalties of 18 Pa. C.S. S 4904 relating to unsworn falsification to authorities. Notice of the hearing should be given to me at: Dated: 6108 Carlisle Restaurant Company, LLC 110 Walnut Street Lemoyne, PA 17043 Telephone: (717) 215-6689 David J. Thomas on behalf of 6108 Carlisle Restaurant Company, LLC ,. i.J ?;z C t?7 ?; .. CJ7 • Notice of Judgment Prepared By: Diane G. Radcliff, Esquire 3448 Trindle Road, Camp Hill, PA 17011 Supreme Court ID # 32112 Phone: 717-737-0100 • Fax: 717-975-0697 • Email: dianeradcliff @comcast.net Attorney for Plaintiff IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA BARNETT PROPERTY MANAGEMENT, INC. Plaintiff NO. 09- -20p -z-- CIVIL TERM V. CIVIL ACTION - LAW DAVID J. THOMAS and 6108 CARLISLE PIKE RESTAURANT COMPANY, LLC IN EJECTMENT Defendants : NOTICE UNDER RULE 2973.3 OF JUDGMENT AND EXECUTION THEREON NOTICE OF DEFENDANT'S RIGHTS To: David J. Thomas 110 Walnut Street Lemoyne, PA 17043 A judgment for possession of real property has been entered against you and in favor of the Plaintiff without prior notice and hearing based on a confession of judgment contained in a promissory note or other document allegedly executed by you. The court has issued and the Sheriff has served a writ of possession which directs the Sheriff to remove you from possession of the real property. You may have legal rights to defeat the judgment or to prevent your being removed from the property or to regain possession of the property if you have been removed, if you did not voluntarily, intelligently and knowingly give up your constitutional right to notice and hearing prior to the entry of judgment or if you have defenses or other valid objections to the judgment. ANY PETITION SEEKING RELIEF FROM THE JUDGMENT AND TO REGAIN POSSESSION MUST BE FILED WITHIN THIRTY (30) DAYS AFTER THE DATE ON WHICH THIS NOTICE IS SERVED ON YOU OR YOU MAY LOSE YOUR RIGHTS. _J If you have been removed from the property without notice or the opportunity for a hearing, you have a right to a prompt court hearing if you claim that you did not voluntarily, intelligently and knowingly give up your rights to notice and hearing prior to the entry of the judgment. If you wish to exercise this right, you must immediately fill out and sign the request for hearing which accompanies the writ of possession and deliver it to the Sheriff of Cumberland County at the Cumberland County Courthouse, One Courthouse Square, Carlisle, PA 17013. YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW. THIS OFFICE CAN PROVIDE YOU WITH INFORMATION ABOUT HIRING A LAWYER. IF YOU CANNOT AFFORD TO HIRE A LAWYER, THIS OFFICE MAY BE ABLE TO PROVIDE YOU WITH INFORMATION ABOUT AGENCIES THAT MAY OFFER LEGAL SERVICES TO ELIGIBLE PERSONS AT A REDUCED FEE OR NO FEE. Cumberland County Bar Association 32 South Bedford Street Carlisle, PA 17013 Telephone No. (717) 249-3166 LIFF, ESQUIRE DIAN=Road Camp Hill, PA 17011 Phone: (717) 737-0100 Supreme Court ID # 32112 Attorney for Plaintiff Petition to Strike Judgment Prepared By: Diane G. Radcliff, Esquire 3448 Trindle Road, Camp Hill, PA 17011 Supreme Court ID # 32112 Phone: 717-737-0100 • Fax: 717-975-0697 • Email: dianeradcliff @comcast.net Attorney for Plaintiff IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA BARNETT PROPERTY MANAGEMENT, INC. Plaintiff NO. 09-1005 CIVIL TERM V. DAVID J. THOMAS and CIVIL ACTION - LAW 6108 CARLISLE PIKE RESTAURANT COMPANY, LLC IN EJECTMENT Defendants : PETITION TO STIKE JUDGMENT REQUEST FOR PROMPT HEARING I hereby certify that I did not voluntarily, intelligently and knowingly give up my right to notice and hearing prior to the entry of judgment. I petition the Court to strike the judgment on this ground and request a prompt hearing on this issue. I verify that the statements made in this Request for Hearing are true and correct. I understand that false statements herein are made subject to the penalties of 18 Pa. C.S. S 4904 relating to unsworn falsification to authorities. Notice of the hearing should be given to me at: David J. Thomas 110 Walnut Street Lemoyne, PA 17043 Telephone: (717) 215-6689 Dated: David J. Thomas f ig ?. t V f ? -. s Praecipe for Writ of Possession Prepared By: Diane G. Radcliff, Esquire 3448 Trindle Road, Camp Hill, PA 17011 Supreme Court 1D # 32112 Phone: 717-737-0100 • Fax: 717-975-0697 • Email: dianeradcliff @comcast.net Attorney for Plaintiff IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA BARNETT PROPERTY MANAGEMENT, INC. V. Plaintiff NO. 0'? - 2° p z CIVIL TERM CIVIL ACTION - LAW DAVID J. THOMAS and . 6108 CARLISLE PIKE RESTAURANT COMPANY, LLC IN EJECTMENT Defendants PRAECIPE FOR WRIT OF POSSESSION UPON A CONFESSED JUDGMENT TO THE PROTHONOTARY: Issue writ of possession upon the judgment in ejectment entered by confession in the above matter against the Defendants for possession of the real property described as follows: Suite 108-112, Good Hope Plaza, 6108 Carlisle Pike, Mechanicsburg, Pennsylvania, 17050 containing 4,985 square feet, more or less, being part of the premises more fully bounded and described on Exhibit "A" attached hereto and made a part hereof. CERTIFICATION I, Diane G. Radcliff, Esquire, certify that: 1. This Praecipe is based upon a judgment entered by confession, and 2. Notice pursuant to Rule 2973.3 will be served with the Writ of Possession. itted, DIANM RA LIFF, ESQUIRE had, Camp Hill, PA 17011 CJV Trindl Phone: (717) 737-0100 Supreme Court ID # 32112 Attorney for Plaintiff 4 -_.O EXHIBIT "A" 6108 CARLISLE PIKE. MECHANICSBURG, PA ALL THAT CERTAIN tract or parcel of land and premises situate, lying and being in the Township of Hampden, County of Cumberland and Commonwealth of Pennsylvania, more particularly described as follows: BEGINNING at a point, said point being at the intersection of the north side of a 50.0 foot wide right of way and the east side of Gustin Drive; THENCE by the east side of Gustin Drive North 15° 02' 47" East 278.55 feet to a point at land of Wu Chon Ho; THENCE by same South 63° 41' 43" East 150.00 feet to a point; THENCE by same North 26° 37' 26" East 162.25 feet to a point on the south side of the Carlisle Pike; THENCE by same and a curve to the left having a radius of 11,409.19 feet, an arc length of 173.82 feet to a point at lands of the Pep Boys; THENCE by same South 26° 23' 48" West 432.45 feet to a point on the north side of a 50.00 foot wide right of way; THENCE by same North 64° 11' 00" West 269.65 feet to the PLACE OF BEGINNING CONTAINING 2.504 acres. BEING the same premises which Skyport Properties, a Pennsylvania Limited Partnership, by its Deed dated February 14, 2003 and recorded February 21, 2003 in the Office of the Recorder of Deeds in and for Cumberland County, Pennsylvania, in Deed Book 255, Page 4133, granted and conveyed unto Barnett Real Estate, LLC. cume `fSt p -P4 t%^1 Cjj_ ?d W2 WRIT OF POSSESSION (Ejectment Proceedings PRCP3160-3165 etc.) IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA BARNETT PROPERTY MANAGEMENT, INC. VS. No. 09-2082 Civil Term DAVID J THOMAS AND 6108 CARLISLE PIKE RESTAURANT COMPANY LLC Costs Attorney's $ 51.50 Plaintiff's $ Prothonotary $ 2.00 COMMONWEALTH OF PENNSYLVANIA: COUNTY OF CUMBERLAND: To the Sheriff of Cumberland County, Pennsylvania (1) To satisfy the judgment for possession in the above matter you are directed to deliver possession of the following described property to: (Plaintiff (s)) BARNETT PROPERTY MANAGEMENT, INC. being: (Premises as follows): SUITE 108-112 GOOD HOPE PLAZA 6108 CARLISLE PIKE MECHANICSBURG, PENNSYLVANIA 17050 CONTAINING 4,985 SQUARE FEET MORE OR LESS BEING PART OF THE PREMISES MORE FULLY BOUNDED AND DESCRIBED ON EXHIBIT "A" ATTACHED HERETO AND MADE A PART HEREOF. (2) To satisfy the costs against the defendant (s) you are directed to levy upon any property of the defendant (s) and sell his/her (or their) interest therein. 409 Epp s R. Lon o o , Common P as Court of C Berland County, PA 9 Date 'V/0 310 (Seal) 2of2 No 09-2082 Civil Term IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA BARNETT PROPERTY MANAGEMENT, INC. VS. DAIVD J THOMAS AND 6108 CARLISLE PIKE RESTAURANT COMPANY LLC WRIT OF POSSESSION P.R.C.P. 3160-3165 ETC. Costs Att'y $ 51.50 Plff (s) $ Prothy $ 2.00 Sheriff $ Plaintiff (s) attorney name and address: DIANE G RADCLIFF ESQUIRE 3448 TRINDLE ROAD, CAMP HILL, PA 17011 (717) 737-0100 Attorney for Plaintiff (s) Where papers may be served By virtue of this writ, on the day of , . I caused the within named , to have possession of the premises described with the appurtenances, and Sworn and subscribed to before me this Day of , Prothonotary So Answers, Sheriff By Deputy Sheriffs Office of Cumberland County R Thomas Kline r 01 Citsubtr 7d Edward L schorpp Sheriff Solicitor Ronny R Anderson Jody S Smith Chief Deputy ( OFPCE OF Tf4E y "ERIrr Civil Process Sergeant SHERIFF'S RETURN OF SERVICE 04/09/2009 12:26 PM - R. Thomas Klin 1 , Sheriff, who being duly sworn according to law, states that on April 9, 2009 at 1226 hours this Complain and Notice upon defendant David J. Thomas is returned not served per request from attorney Diane G. Radcliff, Esquire and Court Order. 04/09/2009 12:26 PM - R. Thomas Klin , Sheriff, who being duly sworn according to law, states that on April 9, 2009 at 1226 hours this Complai t and Notice upon defendant 6108 Carlisle Pike Restaurant Company, LLC is returned not served per req est from attorney Diane G. Radcliff, Esquire and Court Order. SHERIFF COST: $54.42 SO ANSWERS, April 09, 2009 R THOMAS KLINE, SHERIFF 2009-2082 BARNETT PROPER MGMT. VS DAVID J. THOMAS } ORIGINAL I APR 0 6 200 BARNETT PROPERTY MANAGEMENT, INC. Plaintiff V. DAVID J. THOMAS and 6108 CARLISLE PIKE RESTAURANT COMPANY, LLC, Defendants IN THE COURT OF COMMON PLEAS OF CUMBERLAND CO NTY, PENNSYLVANIA - a ©8 e c.Z,?J Tili NO. Oct CIVIL ACTION - ACTION IN EJECT ENT ORDER _ I AND NOW, this 14 1 day of , 2009 upon consideration of th attached Complaint for Confession of Judgment in Eje tment, and the Prior Petition to Strik , it is hereby ordered that: 1. A rule is issued upon the Respondent/ Plaintiff to sh?w cause why the Petitioner/ Defendant is not entitled to the relief requested; 2. The Respondent/ Plaintiff shall file an answer to the Petition wi hin _4 days of this date; 3. The Petition shall be decided under Pa. R. C. P, . No. 206.7; 4. Depositions will be completed within -lq days of this da 5. Argument shall be held on June 10, 2009 at 1:30 p.m. in Cou troom 1, Cumberland County Courthouse, Carlisle, PA and if not completed on that da , then on July 9, 2009 at 1:30 p.m. in Courtroom 1, Cumberland County Courthouse, arlisle, PA. 6. In the event subsequent or amended confessions of judgment are filed against Defendants, this same procedure shall be followed; 7. Pending the decision by this Court, all action or proceedings on any judgment entered in this matter shall be stayed; i 8. Pending the decision by this Court, Plaintiff shall be entitled o accept and cash the check for February 2009 rent and cam payments and any pay ents received frm the Court for the December 2008 and January 2009 rent and cam charges; 9. Pending the decision of the Court on this matter, Defendants hall pay rent and cam payments monthly, beginning with the March 2009 payment in t4 amount of $5,876.81 which shall be made to Plaintiff through Plaintiff's Agent, Dia a G. Radcliff, Esquire, i within 10 days of the date of this signed Order. 10. On or before th 10`h of each month beginning April 10, 2009, D fendants shall make monthly rental and cam payments to Plaintiff through his Ag nt in the amount of $5,876.81 until this matter is decided by the Court. 11. Plaintiff's receipt of the rent and cams shall not be deemed t be a waiver of any default on the part of Defendants as raised in these or any othe proceedings against Defendants by Plaintiff. 12. Notice of the entry of this Order shall be provided to all parties BY THE COURT: Distribution to: OKa'ne G. Radcliff, Esquire, 3448 Trindle Road, Camp Hill, PA 17011, Attorn( VWilliam L. Adler, Esquire, 125 Locust Street, Harrisburg, PA 17101 Attorney by the Petitioner. JUDGE for Petitioner )r Respondent -1- 8 9 =8 WV E I tidy 60oz Al GAII.O 3HI JO Barnett Property Management, Inc., Plaintiff (Respondent) V. David Thomas and 6108 Carlisle Pike Restaurant, LLC, Defendants (Petitioner) IN THE COURT OF COMMON PLEAS Cumberland COUNTY, PENNSYLVANIA CIVIL ACTION - LAW :NO. 09-2082 Civil DEFENDANT'S PETITION TO STRIKE AND/OR OPEN CONFESSED JUDGMENT AND FOR A STAY OF PROCEEDINGS IN RESPONSE TO COMPLAINT FILED APRIL 2 ,2009 AND NOW COME the Defendants, David Thomas and 6108 Carlisle Pike Restaurant, LLC, through their attorneys, Adler & Adler, and respectfully represents the following: 1. By way of confession, Barnett Property Management, Inc. is seeking possession of Suite 108- 112, Good Hope Plaza, 6108 Carlisle Pike, Mechanicsburg, PA, from David Thomas and 6108 Carlisle Pike Restaurant, LLC as the tenant in such space. 2. On February 19, 2009, plaintiff filed a confession of judgment in ejectment against defendant to the above number together with a complaint. 3. Notice of defendant's rights under said judgment was delivered with the confession and complaint. 4. Plaintiff filed for a writ of possession on February 19, 2009. 5. On April 2, 2009, plaintiff filed an amended complaint for confession of judgment in ejectment. 6. On April 2, 2009, plaintiff filed a second complaint on a confession of judgment in ejectment filed to the above number. 7. On April 7, 2009 and April 14, 2009, the Hon. Judge Oler issued Orders setting meeting deadlines and hearing schedules. He further ordered that all actions or proceedings on any judgment entered in this matter shall be stayed. COUNT I - PETITION TO STRIKE OFF JUDGMENT Violation of PaRCP 2951 8. Paragraphs 1-7 are incorporated herein by reference. 9. PaRCP 2951 (a)(2)(i) requires that plaintiff file the instrument in support of the entry of judgment. 10. Plaintiff, in his initial filing of February 19, 2009, failed to file the entire instrument which includes an addendum to the Lease agreement that changes the payment terms. 11. Plaintiff failed to comply with PaRCP 2951 (a)(2)(i). 12. A copy of that addendum was attached to Defendant's petition to strike filed March 10, 2009. 13. Plaintiff attached said that addendum to the amended complaint. 14. The filing of this complaint continues to allege default in payment for December's and January's rent. 15. This same rent was the subject of the February 2009 complaint as well as the April 2009 amended complaint. 16. Upon the entry of a judgment by confession under a warrant of attorney, the warrant is exhausted. 17. The exhaustion of the warrant precludes the plaintiff from amending the complaint or filing a new complaint on the same default. 18. This warrant was exhausted with the filing of the February 2009 complaint. Failure to Comely with Condition Precedent Prior to Entrv of Judgment 19. Paragraph 24 of the Lease attached as Exhibit "A" to plaintiff's complaint states: The foregoing notwithstanding, upon the occurrence of a default, no right or option herein conferred on Landlord shall be exercised unless: (1) Landlord shall have given written notice thereof to Tenants specifying the nature of the default; and (2) in the event of the non-payment of rent Tenant within fourteen (14) days after receipt of such notice shall have failed to submit payment... 20. The giving of notice and an opportunity to cure the default are conditions precedent to the entry of judgment by confession. 21. Plaintiff failed to allege the provision of the notice of default in the complaint of February 19, 2009. 22. Plaintiff has not alleged any new default in the complaint of April 2, 2009. 23. Upon the entry of a judgment by confession under a warrant of attorney, the warrant is exhausted. 24. The exhaustion of the warrant precludes the plaintiff from amending the complaint. Accord and Satisfaction 25. Plaintiff claims the defense of accord and satisfaction. 26. Plaintiff has paid all delinquent rent due for December, 2008 and January 2009 into Court in that Plaintiff refused to accept the same. 27. Plaintiff accepted rent for February, 2009. 28. Plaintiff has also paid rent for March and April, 2009. 29. Defendant cured the default by paying rent due for December, 2008 and January, 2009, into Court in that Plaintiff would not accept said rent. Violation of PaRCP 2971 30. The complaint for confession of February 19, 2009 was defective in that PaRCP 2971(a)(1) requires an averment that judgment is not being entered against a natural person in connection with a residential lease, which averment was missing from plaintiff's February complaint. 31. Upon the entry of a judgment by confession under a warrant of attorney, the warrant is exhausted. 32. The exhaustion of the warrant precludes the plaintiff from amending the complaint or filing a new complaint based on the same default. Violation of PaRCP 2952(6) 33. The complaint is defective in that PaRCP 2952 (6) requires a statement that judgment may be entered only after a default or the occurrence of a condition precedent, an averment of the default or of the occurrence of the condition precedent. 34. Plaintiff alleged a default in paragraph 6 of the complaint, but failed to allege the fulfillment of the condition precedent as required by paragraph 24 of the Lease. 35. Upon the entry of a judgment by confession under a warrant of attorney, the warrant is exhausted. 36. The exhaustion of the warrant precludes the plaintiff from amending the complaint or from filing a new complaint based on the same default. Failure to Reaffirm Confession of Judgment in Addendum to Lease 37. On January 4, 2008, plaintiff and defendant entered into a modification of the Lease terms. 38. Defendant sent a signed copy to plaintiff, but plaintiff never returned a fully executed copy to defendant. 39. A copy of said modification is attached as Exhibit "A." 40. The January 4, 2008 modification made no reference to the warrants of attorney in the 2005 Lease. 41. The warrant of attorney was not incorporated by reference in the January 2008 amendment. 42. The January 2008 amendment did not reaffirm the warrant of attorney in the 2005 Lease. 43. Due to the lack of confirmation or reaffirmation, the judgment should be stricken. Lack of Knowing Waiver of Rights 44. The Tenant did not voluntarily, intelligently and knowingly waive his/its right to notice and hearing prior to entry of the judgment. 45. The confession of judgment clause was buried in page 20 of the Lease. 46. No distinctive fonts distinguished the confession clauses. 47. There is no separate affirmation in the Lease for Tenant to acknowledge that he/it has waived its right to notice in such a manner. 48. No separate explanation of the confession of judgment clauses was given to Tenant. Improper Verification 49. PaRCP 2952(10) requires verification in accordance with the rules relating to a civil action. 50. The attorney for the plaintiff verified the February 2009 complaint, even though averments of fact were included. 51. The rules relating to a civil action require that the plaintiff verify the complaint. 52. The complaint was improperly verified. 53. Upon the entry of a judgment by confession under a warrant of attorney, the warrant is exhausted. 54. The exhaustion of the warrant precludes the plaintiff from amending the complaint or from filing a new complaint based on the same default. WHEREFORE, Petitioner respectfully requests that the judgment in ejectment be stricken for all of the aforedescribed reasons. COUNT II - PETITION TO OPEN JUDGMENT 55. Petitioners hereby incorporate by reference the allegations set forth in paragraphs 1-54. 56. In the alternative, to the extent that the judgment entered by confession is not stricken, the judgment must be opened. A Petition to Open Confessed Judgment must be granted if the Petition: (a) is timely filed; (b) alleges a meritorious defense; and (c) presents sufficient evidence to require submission of the case to a jury. 57. This case is timely filed. 58. Numerous factors have been raised above manifesting a meritorious defense which is sufficient to require submission to a jury. COUNT III - REQUEST FOR STAY OF PROCEEDINGS 59. Paragraphs 1-58 are incorporated herein by reference. 60. Pennsylvania Rule of Civil Procedure 2959(b) authorizes a stay of proceedings on a judgment of confession as long as the Petition to Open "states prima facie grounds for relief..." 61. This Court has stayed all execution proceedings pending trial. WHEREFORE, Defendants respectfully request that the judgment of confession entered in the above-captioned matter be stricken, or, in the alternative, opened. ADLVa & ABLER by; "William L. Adler, Esquire- Attorney for Defendants ADLER & ADLER 125 Locust St. Harrisburg, PA 17101 717-234-3289 Supreme Court ID Number 39844 Wmadler@adlerandadler.net May 4, 2009 VERIFICATION I VERIFY THAT THE STATEMENTS MADE IN THE FOREGOING PLEADING ARE TRUE AND CORRECT. I UNDERSTAND THAT FALSE STATEMENTS HEREIN ARE MADE SUBJECT TO THE PENALTIES OF 18 Pa.C.S.A. Section 4904 RELATING TO UNSWORN FALSIFICATION TO AUTHORITIES. DATE: 0 p S 0 David Thom for Petitioners CERTIFICATE OF SERVICE I, William L. Adler, Esquire, Attorney for Defendants, hereby certify on the S day of M , 2009, I served a copy of the within Petition upon the following person by first class mail, postage prepaid, addressed as follows: Diane G. Radcliff, Esquire 3448 Trindle Road Camp Hill, PA 17011 d lue? William L. Adler, Esquire OF Tft PRO'FM-,+0"ARY 209 MAY -6 AM 11 * 42 PENt\VLV,A. A MAY v / ?UUj William L. Adler, Esquire ADLER & ADLER 125 Locust St. Harrisburg, PA 17101 Phone: 717-234-3289 Fax: 717-234-1670 Email: wmadlerna adlerandadler net Supreme CourtID: 39844 Barnett Property Management, Inc., Plaintiff (Respondent) V. IN THE COURT OF COMMON PLEAS Cumberland COUNTY, PENNSYLVANIA : CIVIL ACTION - LAW David Thomas and 6108 Carlisle Pike Restaurant, LLC, :NO. 09-2082 Civil Defendants (Petitioner) ORDER AND NOW, THIS -i?L day of 2009, upon consideration of the Petition to Strike Off and/or Open Confessed Judgment and For a Stay of Proceedings, it is hereby ORDERED that: The procedure outlined in the Order of April 1005, Civil, shall be followed. 14, 2009 in the case entered to number 09- IT IS FURTHER ORDERED that, except as otherwise stated, all other proceedings herein, including execution, are STAYED until further Order of this Court. tribution: Diane G. Radcliff, Esquire,, 3448 Trindle Road, Camp Hill, PA dianeradcliff@comcast.net 17011, William L. Adler, ADLER & ADLER, 125 Locust St. Harrisburg, wmadler@adlerandadler.net PA 17101, 1 E.S /r1aLl s/-"f l ec) ;4-/l 6 C' I I A I I OW 60OZ ! )1 ;: r', - cl-1IA RE: Answer Past Due Cam Confession of Judgment Prepared by: Diane G. Radcliff, Esquire 3448 Trindle Road, Camp Hill, PA 17011 Supreme Court ID # 32112 Phone: 717-737-0100 • Fax: 717-975-0697 • Email: dianeradcliff@comcast.net Attorney for Plaintiff IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA BARNETT PROPERTY MANAGEMENT, INC., Plaintiff NO. 09-2082 CIVIL TERM V. DAVID J. THOMAS and CIVIL ACTION - LAW ACTION IN EJECTMENT 6108 Carlisle Pike Restaurant, LLC, Defendants ANSWER TO DEFENDANTS' PETITION TO STRIKE AND/OR OPEN CONFESSED JUDGMENT AND FOR A STAY OF PROCEEDINGS AND NOW, this 2"d day of June, 2009, comes the Plaintiff, Barnett Property Management, Inc., by its attorney, Diane G. Radcliff, Esquire, and files this Answer to Defendant's Petition as follows: ANSWER 1. Admitted. 2. Denied. It is denied that the complaint was filed on February 19, 2009. On the contrary it is averred that the complaint was filed on April 2, 2009. 3. Admitted. 4. Denied. It is denied that Plaintiff filed for a writ of possession on February 19, 2009. On the contrary, it is averred that Plaintiff filed for a Writ of Possession on April 2, 2009. 5. Denied. It is denied that Plaintiff filed an amended Complaint on April 2, 20098. On the contrary it is averred that the complaint filed on April 2, 2009 was the original - 1 - complaint. 6. Admitted. 7. Admitted. ANSWER TO COUNT I - PETITION TO STRIKE OFF JUDGMENT Violation of PA.R.C.P. 2951 8. The Plaintiff incorporates by reference the answers and averments set forth in paragraphs 1 through 6 inclusive herein the same as if fully set forth at length. 9. Admitted with the clarification that it is believed and averred that the term "instrument" referenced in Pa.R,C.P. (a)(2)(i) refers to the instrument containing the right to confession of judgment and not to any collateral documents which have no bearing on the confession. 10. Denied. It is denied that Plaintiff failed to file the instrument as required by Pa.R.C.P. (a)(2)(i) in that Plaintiff filed both the Lease Agreement and the 1/14/08 Settlement Agreement as part of the Complaint filed on 4/2/09. 11. The averment of paragraph 11 is a conclusion of law to which no response is required. To the extent it may be determined that a response to said averment is required, then it is denied that Plaintiff failed to comply with Pa.R,C.P. (a)(2)(i) for the reasons set forth in paragraphs 9 and 10 herein incorporated by reference hereto. 12. Admitted with the clarification that the filing was in the case docketed to No. 09-1005 Civil Term. 13. Admitted with the clarification that the attachment was in the case docketed to No. 09-1005 Civil Term. 14. Admitted with the clarification that the allegation of the default of the payment of the December 2008 and January 2009 rent was made for the purposes that: a. It was a matter of historical background; b. A default in the terms of the lease was a condition precedent for all past due rents and late fees set forth in Schedule "B" of the 1/4/08 Settlement Agreement becoming due and payable. 15. Admitted with the clarification that the default in the payment of the December 2008 rent and the January 2009 rent, and the failure to cure said default after notice was -2- the default that triggered the applicability of the confessed judgment in the action docketed to No. 09-1005, while the default in the payment of the past due cams set forth on Schedule "B" of the 1 /4/08 Settlement Agreement, and the failure to cure said default after notice was the default that triggered the applicability of the confessed judgment in the above captioned action docketed to No 09-2082. 16. The averment of paragraph 16 is a conclusion of law to which no response is required. To the extent it may be determined that a response to said averment is required, then Plaintiff Specifically denies the averments of paragraph 16 of Defendants' Petition to Strike and/or Open Confessed Judgment (hereafter " Defendant's Petition"), incorporated by reference hereto. 17. The averment of paragraph 17 is a conclusion of law to which no response is required. To the extent it may be determined that a response to said averment is required, then Plaintiff specifically denies the averments of paragraph 17 of Defendant's Petition, incorporated by reference hereto. By way of further answer it is averred that the complaint filed in this action was not filed on the same default as the complaint filed in the action docketed to No 09-1005 as averred in paragraph 15 herein, incorporated by reference hereto. 18. The averment of paragraph 18 is a conclusion of law to which no response is required. To the extent it may be determined that a response to said averment is required, then Plaintiff specifically denies the averments of paragraph 18 of Defendant's Petition, incorporated by reference hereto. Failure to Comply with Condition Precedent Prior to Entry of Judgment 19. Admitted. 20. The averment of paragraph 20 is a legal conclusion to which no response is required. If it is determined that a response is required, Plaintiff denies the averments of paragraph 20 of Defendants' Petition. 21. Admitted. It is admitted that Plaintiff did not allege the provision of the notice of default in the Complaint of February 19, 2009 filed in the action docketed to No. 09- 1005, with the clarification, however, that: a. In paragraphs 11 through 25 of the Amended Complaint filed in the action docketed to No. 09-1005, incorporated by reference hereto, Plaintiff did allege the fulfilment of the condition precedent as provided in paragraph 24 of the Lease in that Plaintiff alleged that Plaintiff provided Defendant with notice of default and opportunity to cure prior to the entry of judgment by confession. -3- b. The failure to allege the Notice of Default in the action docketed to No 09-1005 is irrelevant to this case which is based on a different default in the Lease terms. C. Plaintiff did allege the provision of Notice of Default and opportunity to cure in the Complaint filed in this case. 22. Denied. It is denied that Plaintiff did not allege a new default in the Complaint filed in this action on April 2, 2009. On the contrary, Plaintiff incorporated by reference the averments set forth in paragraph 28-32 of the April 2, 2009 Complaint filed in this case in which a default in the payment of the 1/4/2008 settlement Agreement Schedule "B" past due late fees and cams is averred. 23. The averment of paragraph 23 is a conclusion of law to which no response is required. To the extent it may be determined that a response to said averment is required, then Plaintiff specifically denies the averments of paragraph 23 of Defendant's Petition, incorporated by reference hereto. 24. The averment of paragraph 24 is a conclusion of law to which no response is required. To the extent it may be determined that a response to said averment is required, then Plaintiff specifically denies the averments of paragraph 24 of Defendant's Petition, incorporated by reference hereto. By way of further answer it is averred that the complaint filed in this action has not been amended so the Defendant's averment that the exhaustion of the warrant of Attorney precludes the filing of an amended complaint is irrelevant. Accord and Satisfaction 25. The averment of Paragraph 25 is a conclusion of law to which no response is required. If it is determined that a response is required, Plaintiff denies the averments of paragraph 25 of Defendant's Petition. 26. Denied. It is denied that Defendant [sic Plaintiff] paid all delinquent rent for December 2008 and January 2009 into Court and that Plaintiff refused to accept the same. By way of further answer it is believed and therefore averred that: a. As indicated on the "Past Due Rent and Cam Calculations", attached hereto, marked Exhibit "A" and made a part hereof, Defendant did not pay into court not all of the delinquent rent and cams for December 2008 and January 2009 as there was no authority of the court to collect additional late charges in the bad check criminal matter. -4- b. Payment into court to reduce changes from a misdemeanor to a summary offense in a bad check criminal matter, which payment had not been received by the time the confession of judgment was filed does not constitute a waiver of the default nor serve as a basis for the denial of the entry of judgment by confession or grounds to set aside nor open that judgment. 27. Denied. It is denied that Plaintiff accepted the rent for February 2009. On the contrary, and as averred in paragraph 22 and 23 of the Amended Complaint filed in the action docketed to No. 09-1005, incorporated by reference hereto, when Defendant tendered the February 2009 rent payment he was specifically told that the payment would not be cashed and that his delivery of the payment would not negate his prior default. By way of further answer it is averred that: a. As per the calculations set forth on Exhibit "A", incorporated by reference hereto, the rent paid for February 2009 was $93.89 less than the amount due. b. The acceptance of the rent and cams due for February 2009 was made after and pursuant to the Court's Order dated April 14, 2009, which authorized Plaintiff to accept said payment without being deemed a waiver of default. 28. Admitted with the clarification that: a. As per the calculations set forth on Exhibit "A", incorporated by reference hereto, the rent paid for April was $93.47 less than the amount due. b. The acceptance of the rent and cams due for March and April 2009 was made after and pursuant to the Court's Order dated April 14, 2009, which authorized Plaintiff to accept said payment without being deemed a waiver of default. 29. The averment of paragraph 29 is a conclusion of law to which no response is required. To the extent it may be determined that a response to said averment is required, then it is denied that Defendants cured the default by paying only part of the sums due for December 2008 and January 2009 into court in that the default alleged in the Complaint was for the failure to pay the 1/4/08 Settlement Agreement Schedule "B" rent, late fees and cams, none of which has been paid by Defendant. Violation of PaRCP 2971 30. Admitted with the clarification that: a. This requirement was corrected in the Amended Complaint, specifically paragraph 28 thereof, incorporated by reference hereto, which provides that the Lease and 1/4/08 Settlement Agreement involves a commercial lease of real - 5 - property and judgment is not being entered against a natural person in connection with a residential lease. b. In paragraph 28 of the complaint filed in this action on April 2, 2009P1 does allege that: "The Lease and 1/4/07 Settlement Agreement involves a commercial lease of real property and Judgment is not being entered against a natural person in connection with a residential lease." 31. The averment of paragraph 31 is a conclusion of law to which no response is required. To the extent it may be determined that a response to said averment is required, then Plaintiff specifically denies the averments of paragraph 31 of Defendant's Petition, incorporated by reference hereto. 32. The averment of paragraph 32 is a conclusion of law to which no response is required. To the extent it may be determined that a response to said averment is required, then Plaintiff specifically denies the averments of paragraph 32 of Defendant's Petition, incorporated by reference hereto. By way of further answer it is averred that the complaint filed in this action was not filed on the same default as the complaint filed in the action docketed to No 09-1005 as averred in paragraph 15 and 29 herein, incorporated by reference hereto. Violation of PaRCP 2952(6) 33. The averment of 33 is a legal conclusion to which no response is required. If it is determined that a response is required, Plaintiff denies the averments of paragraph 33 of Defendant's Petition. 34. Denied. It is denied that Plaintiff failed to allege the fulfilment of the condition precedent as provided in paragraph 24 of the Lease. By way of further answer, Plaintiff incorporates by reference the averments set forth in paragraph 28 through 32 of the April 2, 2009 Complaint filed in this action, in which Plaintiff alleged the fulfilment of the condition precedent as provided in paragraph 24 of the Lease in that Plaintiff alleged that Plaintiff provided Defendant with notice of default and opportunity to cure prior to the entry of judgment by confession. 35. The averment of paragraph 35 is a conclusion of law to which no response is required. To the extent it may be determined that a response to said averment is required, then Plaintiff specifically denies the averments of paragraph 35 of Defendant's Petition, incorporated by reference hereto. 36. The averment of paragraph 36 is a conclusion of law to which no response is required. To the extent it may be determined that a response to said averment is required, then -6- Plaintiff specifically denies the averments of paragraph 36 of Defendant's Petition, incorporated by reference hereto. By way of further answer it is averred that the complaint filed in this action was not filed on the same default as the complaint filed in the action docketed to No 09-1005 as averred in paragraph 15 and 29 herein, incorporated by reference hereto. Failure to Reaffirm Confession of Judgment in Addendum to Lease 37. Admitted. 38. Denied. It is denied that Defendant sent a signed copy to Plaintiff and Plaintiff never returned a fully executed copy to Defendant. On the contrary, it is averred that the 1/4/08 Settlement Agreement was signed by Plaintiff's agent and attorney first, and that Defendant signed it in the Agent's office and was provided with a copy upon his signing. 39. Denied. It is denied that a copy of the 1/4/08 Settlement Agreement was attached to Defendant's Petition. 40. Admitted with the clarification that there is no requirement for the 1/4/08 Settlement Agreement to reference the warrant of attorney in that the 1/4/08 Settlement agreement only changed the date of payment of the rent and provided Defendant with a reduction on past due amounts provided that Defendants complied with the terms of the Lease and the 1/4/08 Settlement Agreement. 41. Denied. It is denied that warrant of attorney was not incorporated by reference in the 1/4/08 Settlement agreement. On the contrary, it is averred that paragraph 8 of the 1/4/08 Settlement Agreement specifically provided that acceptance of payment after its due date will not be considered to be a waiver of any of the rights and remedies provided in the Lease, which by reference and inference would include the warrant of attorney, a remedy included in the Lease. 42. Admitted with the clarification that there is no requirement for the 1/4/08 Settlement Agreement to reaffirm the Warrant of Attorney in the 2005 Lease in that the 1/4/08 Settlement agreement only changed the date of payment of the rent and provided Defendant with a reduction on past due amounts provided that Defendants complied with the terms of the Lease and the 1/4/08 Settlement Agreement. 43. The averment of 43 is a legal conclusion to which no response is required. If it is determined that a response is required, Plaintiff denies the averments of paragraph 43 of Defendant's Petition. -7- Lack of Knowing Waiver of Rights 44. The averment of 44 is a legal conclusion to which no response is required. If it is determined that a response is required, Plaintiff denies the averments of paragraph 44. By way of further answer, it is averred that Defendants were at all times represented by legal counsel in the negotiation and execution of the Lease and therefore were fully aware of all of his and its legal rights and obligations arising out of the Lease. 45. Denied. It is denied that the confession of judgment was "buried" in paragraph 20 of the Lease, but rather it is averred that it is plainly set forth in paragraph 20 of the Lease. 46. Admitted with the clarification that distinctive fonts for confession of judgment clause are not required for the clause to be valid. 47. Admitted with clarification that there is no requirement for Tenant to acknowledge that he has waived his right to notice in such manner for the clause to be valid. 48. Denied. It is denied that no separate explanation of confession of judgment clause was given to Tenant. By way of further answer, it is averred that Tenant was at all times represented by legal counsel in the negotiation and execution of the Lease and therefore was fully aware of all of his legal rights and obligations arising out of the lease. Improper Verification 49. Admitted. 50. Admitted with clarification that: a. The complaint referenced in paragraph 50 is the one filed in the action docketed to No 09-1005, not the present case. b. Attorney for Plaintiff verified the Complaint filed in the case docketed to No 09- 1005 as Property Management Agent for the Plaintiff and not as its Attorney. C. The alleged error in the verification in the Complaint filed in the action docketed to No 09-1005 was corrected by the filing of the Amended Complaint which was verified by Plaintiff's Assistant Property Management Agent, which verification is incorporated by reference hereto. d. The verification attached to the within Complaint was signed by Deborah -8- Donley, not Plaintiff's counsel, in her capacity as assistant property manager. 51. The averment of 51 is a legal conclusion to which no response is required. If it is determined that a response is required, Plaintiff incorporated by reference the averments set forth in paragraph 51 herein. 52. The averment of 52 is a legal conclusion to which no response is required. If it is determined that a response is required, Plaintiff incorporated by reference the averments set forth in paragraph 52 herein. 53. The averment of paragraph 53 is a conclusion of law to which no response is required. To the extent it may be determined that a response to said averment is required, then Plaintiff specifically denies the averments of paragraph 53 of Defendant's Petition, incorporated by reference hereto. 54. The averment of paragraph 54 is a conclusion of law to which no response is required. To the extent it may be determined that a response to said averment is required, then Plaintiff specifically denies the averments of paragraph 54 of Defendant's Petition, incorporated by reference hereto. By way of further answer it is averred that the complaint filed in this action was not filed on the same default as the complaint filed in the action docketed to No 09-1005 as averred in paragraph 15 and 29 herein, incorporated by reference hereto. COUNT 11 - PETITION TO OPEN JUDGMENT 55. The Plaintiff incorporates by reference the answers and averments set forth in paragraphs 1 through 54 inclusive herein the same as if fully set forth at length. 56. The averment of 56 is a legal conclusion to which no response is required. If it is determined that a response is required, Plaintiff denies the averments of paragraph 56 of Defendant's Petition. 57. The averment of 57 is a legal conclusion to which no response is required. If it is determined that a response is required, Plaintiff denies the averments of paragraph 57 of Defendant's Petition. 58. The averment of 58 is a legal conclusion to which no response is required. If it is determined that a response is required, Plaintiff denies the averments of paragraph 58 of Defendant's Petition. -9- COUNT III - REQUEST FOR STAY OF PROCEEDINGS 59. The Plaintiff incorporates by reference the answers and averments set forth in paragraphs 1 through 58 inclusive herein the same as if fully set forth at length. 60. The averment of 59 is a legal conclusion to which no response is required. If it is determined that a response is required, Plaintiff denies the averments of paragraph 59 of Defendant's Petition. 61. Admitted. WHEREFORE the Plaintiff requests this Honorable Court to dismiss Defendants' Petition to Strike and/or Judgment. Respectfully submitted, D NE G. RA CLIFF, ESQUIRE 3448 ' oad Camp Hill, PA 17011 Phone: (717) 737-0100 Supreme Court ID # 32112 Attorney for Plaintiff -10- VERIFICATION I, Deborah L. Donley, Assistant Property Manager for Plaintiff, being duly authorized to act on behalf of Plaintiff, and being personally familiar with all of the facts alleged herein, verify that the statements made in this Answer are true and correct. I understands that false statements herein are made subject to the penalties of 18 Pa.C.S. Section 4904, relating to unsworn falsification to authorities. DEBORAH L. DONLEY 61 - 11 - CERTIFICATE OF SERVICE I, DIANE G. RADCLIFF, ESQUIRE, hereby certify that on June 2. 2009, 1 served a true and correct copy of the Plaintiff's Answer upon Defendant's Attorney, by mailing same by first class mail, postage prepaid, addressed as follows: William J. Adler, Esquire ADLER & ADLER 125 Locust Street Harrisburg, PA 17101 PMRr G. DCLIFF, ESQUIRE Me Road Camp Hill, PA 17011 Phone: (717) 737-0100 Fax: (717) 975-0697 Supreme Court ID # 32112 Dave Thomas - Good Hope Plaza - Past Due Rent and Cam Calculations Description Amount Due Total Amount December Base Rent $3,738.75 December Cams $2,000.00 Bank Service Charge $20.00 December 1 time late fee $250.00 December Rent daily late fee $10/day 12/11/08 to 3/16/09 (96 days) $960.00 Payment from Court Check Date 3/26/09 ($5,758.U5 Total due For December Rent, CAMS and Late Charges as of 3/17/09 $1,210.00 $1,210.00 January Base Rent $3,832.22 January Current Cam Charges $2,000.00 January Late Fees $290.00 Bank Service Charge $20.00 January One Time Late Fee $250.00 January Dail late fee 1/11/09 to 3/16/09 (65 days) $650.00 Payment from Court Check Date 3/26/09 ($6,142.2J2 Total due for January Rent, CAMS and Late Charges as of 3/17/09 $900.00 $900.00 February Rent $3,832.22 February Current Cams $2,000.00 February Payment # 406166 ($5,738.33 Total Due for February Rent & CAMS as of 3117/09 $93.89 $93.89 March Rent $3,832.22 March Current Cams $2,000.00 One Time Late Fee $250.00 March Payment 6 082.2 Total Due for March Rent & CAMS $0.00 $0.00 April Rent $3,832.22 April Current Cams $2,000.00 One time late Fee $250.00 April rent payment 6 082.22 Total Due for April Rent & CAMS $0.00 $0.00 May Rent $3,832.22 May Current Cams $2,000.00 One time late Fee $250.00 Daily Late Fee $10.00 May rent payment ($5,738.75) May Late Fee Payment ($260.001 Total Due for May Rent and CAMS $93.47 $93.47 Cam Payment Due 3/31/09 $3,347.31 $3,347.31 Total Due $5,644.67 C--/- ,Oot 4 ('A - 13 - THE IT-J9, .: ?j+ 1 -2 Id i ::' 5-o' IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA BARNETT PROPERTY MANAGEMENT, INC., Plaintiff NO. 09-1005 V. DAVID J. THOMAS and 6108 Carlisle Pike Restaurant, LLC, Defendants and CIVIL ACTION - LAW ACTION IN EJECTMENT IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA BARNETT PROPERTY MANAGEMENT, INC., Plaintiff NO. 09-2082 CIVIL TERM `S V. DAVID J. THOMAS and 6108 Carlisle Pike Restaurant, LLC, Defendants CIVIL ACTION - LAW ACTION IN EJECTMENT STIPULATED AGREEMENT THIS AGREEMENT is entered into this 5th day of June, 2009 between Barnett Property Management Inc. (hereinafter referred to as "Barnett") and David J. Thomas (hereinafter referred to as "Thomas") and 6108 Carlisle Pike Restaurant Co., LLC (hereinafter referred to as "LLC"). WHEREAS, Barnett, Thomas and LLC entered into a lease agreement dated October 29, 2004 (hereinafter referred to as the "Lease"); and WHEREAS, on January 4, 2008, Barnett, Thomas and LLC entered into a settlement agreement which amended the Lease (hereinafter referred to as the "Settlement Agreement"); and WHEREAS, Barnett has alleged that Thomas and LLC have violated terms of the Lease by failing to make timely payment of rent and CAMS; and WHEREAS, On February 19, 2009, Barnett filed a complaint in an action for ejectment by confession of judgment in the Court of Common Pleas of Cumberland County, PA, docketed -1- to Number 01 - 1005; and WHEREAS, on April 2, 2009, Barnett filed an amended complaint in the action for ejectment by confession in the aforementioned case docketed to No 09-1005; and WHEREAS, On April 2, 2009, Barnett filed a complaint in a second action for ejectment by confession of judgment in the Court of Common Pleas of Cumberland County, PA, docketed to Number 09 - 2082; and WHEREAS, Thomas and LLC filed Petitions to Strike/Open in response to all three complaints; and WHEREAS, a hearing is scheduled on this matter for June 10, 2009; and WHEREAS, the parties have reached an agreement of settlement in these matters. NOW THEREFORE, the parties hereto, each of them intending to be legally bound hereby, stipulate and agree as follows: 1. BACK RENT AND LATE CHARGES. Upon the signing of this Agreement Thomas and LLC shall pay Barnett the amount of $1,577.36 representing rent, interest and late charges, accruing during the period from December 1, 2008 through May 31, 2009. This will bring all rent payments current as of the date of this Agreement (exclusive of the June rent and cams due on June 10, 2009). 2. BACK CAMS. The following shall apply to the payment of the Back Cams: a. The parties agree that under the Settlement Agreement, as of March 31, 2009 the balance due for back cams is $12,397.44 (hereinafter referred to as "Back Cams"). b. Thomas and LLC did not pay Barnett the installment payment of Back Cams in the amount of $3,347.31 ($3,099.36 principal and 247.65 interest) due on March 31, 2009. C. Upon the signing of this Agreement, Thomas and LLC shall pay Barnett the amount of $3,347.31 in full satisfaction of the amounts due as referenced in paragraph 2(b) above. This will bring all CAM payments current as of the date of this Agreement. d. Additional payments of Back Cams shall be paid by Thomas/LLC as follows: .2- Due Date Payment Balance 6/30/09 3285.32 6198.72 9/30/09 3223.33 3099.36 12/30/09 3166.35 0 ($3,099.66 of each payment is principal) e. In the event the Back Cam payments are not made by the 15th day of the month following the Due Date, Thomas/LLC shall pay a one time $250.00 late fee together with a $10.00/day penalty. The $10.00/day penalty shall accrue until the default is cured or until the expiration of the 30 day default notice period (see paragraph 2 (h)), whichever is earlier. f. In the event that Thomas and LLC sell the restaurant business at 6108 Carlisle Pike, the remaining balance of the Back Cams shall be paid in full within seven days of the date of settlement. g. Upon payment of the amounts set forth in this paragraph 2(d) of this Agreement prior to expiration of the 30 day notice of default, if any, Barnett agrees that all cams predating the date of the Settlement Agreement are paid in full. h. In the event, (i) Thomas and/or LLC default in the payment of Back Cams and (ii) after Thomas and LLC have been given 30 days written notice to cure said default in the payment of Back Cams, and (iii) Thomas and/or LLC fail to cure the default in the payment of Back Cams within the 30 day notice period, then in addition to the Back Cams owed as set forth in paragraph 4 (d) herein, Thomas and LLC shall owe Barnett the difference between $19,204.36 minus $3,099.36 times the number of Back Cam payments made after the date of this Agreement. This 30 day notice of default shall only apply to overdue CAMS, and not overdue rent. 3. ADJOINING LOT. The following shall apply to paragraph 33 of the Lease and the ability of Landlord to build on the lot between the Carlisle Pike and the strip mall: -3- a. The last sentence of paragraph 33 of the Lease states, "Further, Landlord will not take any action that would further impair the visibility of the Leased Premises from the Carlisle Pike." b. Thomas and LLC agree to delete from the Lease this last sentence of paragraph 33 of the Lease as set forth in subparagraph 3 (a) above. C. Barnett agrees that in the event any structure is built or erected upon the lot between the Carlisle Pike and the restaurant operated in the Leased Premises that Barnett will use his best efforts not to interfere with the existing parking that is used for the restaurant and the rest of the strip mall. d. Barnett agrees to give Thomas and LLC the lesser of $5,000.00 or 20% of the cost of a sign as credit against cams or rent at the time a building is commenced on the lot between the restaurant and the Carlisle Pike for the erection of a new sign to advertise the restaurant. If no sign is erected, no credit shall be given. e. Thomas and LLC may erect a separate sign on the Carlisle Pike which may be a digital sign, at tenant's expense (minus the above credit), to provide the restaurant with more visibility, provided the sign complies with Township requirements. 4. POST SETTLEMENT AGREEMENT RENT AND CAMS. The following applies to the rent and cams accruing after the date of the Settlement Agreement: a. But for the Back Cams and after the payment is made as set forth in paragraphs 1 and 2 herein, Thomas and LLC are current with the payment of rent and have a credit towards the cams that have not yet been billed. b. Barnett will provide Thomas's counsel with the bills for the past 12 months that support the cam payments. C. The parties agree that Thomas will be able to review the bills in support of the CAMS and Barnett will be open to adjusting the CAM charges in the event inconsistencies are determined. 5. SALE OF RESTAURANT. In the event Thomas and LLC find an able and willing buyer for the restaurant, and provided that Thomas and LLC are not in default under any terms of the Lease or any modifications thereto, Barnett will release Thomas and LLC from any and all obligations under the Lease and any modifications thereto, making the new tenant solely responsible for said charges. Barnett will not unreasonably withhold approval of the assignment of the Lease as amended to a new tenant. -4- 6. VALIDITY OF CONFESSION OF JUDGMENT CLAUSE. The validity of the confession of judgment clause (including the voluntary and knowing of waiver of rights thereunder) is acknowledged by Thomas and LLC and shall apply to the Lease and any modifications thereto, including this Agreement. 7. RATIFICATION. In all other respects, the terms of the Lease and Settlement Agreement are hereby ratified and confirmed, except as modified by this Agreement. 8. FILING. A copy of this Agreement shall be filed of record in each of the above referenced actions. 9. DISCONTINUANCE. Barnett agrees to mark both actions in ejectment by confession referenced above settled and discontinued. 10. BINDING EFFECT. This Agreement shall be binding on the heirs, successors, personal representative and assigns of the parties hereto. 11. COUNTERPARTS. This Agreement may be executed in counterparts, each of which shall be deemed to be an original, but all of which shall constitute one and the same agreement upon the execution by all parties. Witness: Barnett Property Management Inc., By: David J. Thomas 6108 Carlisle Pike Restaurant Co., LLC by: -5- 6. VALIDITY OF CONFESSION OF JUDGMENT CLAUSE. The validity of the confession of judgment clause (including the voluntary and knowing of waiver of rights thereunder) is acknowledged by Thomas and LLC and shall apply to the Lease and any modifications thereto, including this Agreement. 7. RATIFICATION. In all other respects, the terms of the Lease and Settlement Agreement are hereby ratified and confirmed, except as modified by this Agreement. 8. FILING. A copy of this Agreement shall be filed of record in each of the above referenced actions. 9. DISCONTINUANCE. Barnett agrees to mark both actions in ejectment by confession referenced above settled and discontinued. 10. BINDING EFFECT. This Agreement shall be binding on the heirs, successors, personal representative and assigns of the parties hereto. 11. COUNTERPARTS. This Agreement may be executed in counterparts, each of which shall be deemed to be an original, but all of which shall constitute one and the same agreement upon the execution by all parties. Witness: Barnett Property Management Inc., By: ry- ?h 24? David J. Thomas 6108 Carlisle Pike Restaurant Co., LLC by: -5- ALEDwr 1C OF THE PH O i F-'ONDWY 2009 JU14 - 9 PH 12: 4 2 P41?J N3YLVA NIA IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA BARNETT PROPERTY MANAGEMENT, INC., Plaintiff V. DAVID J. THOMAS and 6108 Carlisle Pike Restaurant, LLC, Defendants NO. 09-2082 CIVIL ACTION - LAW ACTION IN EJECTMENT PRAECIPE TO THE PROTHONOTARY OF THE SAID COURT: Please mark the above captioned action settled and discontinued. Respectfully Submitted, DIANE DCLIFF, ESQUIRE Registration No 32112) 3448 Trindle Road, Camp Hill, PA 17011 Email: dianeradcliffCcomcast.net Phone: (717) 737-0100 • Fax: (717) 975-0697 Counsel for Plaintiff Dated: June 8, 2009 RLEQ--tai icc- OF THE PPop4[-?.NARY 2009 JUN -9 Pry 12 41 UNTY IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA BARNETT PROPERTY MANAGEMENT, INC., Plaintiff V. DAVID J. THOMAS and 6108 Carlisle Pike Restaurant, LLC, Defendants and NO. 09-1005 CIVIL ACTION - LAW ACTION IN EJECTMENT IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA BARNETT PROPERTY MANAGEMENT, INC., Plaintiff V. DAVID J. THOMAS and 6108 Carlisle Pike Restaurant, LLC, Defendants NO. 09-2082 CIVIL TERM CIVIL ACTION - LAW ACTION IN EJECTMENT STIPULATED AGREEMENT THIS AGREEMENT is entered into this 5th day of June, 2009 between Barnett Property Management Inc. (hereinafter referred to as "Barnett") and David J. Thomas (hereinafter referred to as "Thomas") and 6108 Carlisle Pike Restaurant Co., LLC (hereinafter referred to as "LLC"). WHEREAS, Barnett, Thomas and LLC entered into a lease agreement dated October 29, 2004 (hereinafter referred to as the "Lease"); and WHEREAS, on January 4, 2008, Barnett, Thomas and LLC entered into a settlement agreement which amended the Lease (hereinafter referred to as the "Settlement Agreement"); and WHEREAS, Barnett has alleged that Thomas and LLC have violated terms of the Lease by failing to make timely payment of rent and CAMS; and WHEREAS, On February 19, 2009, Barnett filed a complaint in an action for ejectment by confession of judgment in the Court of Common Pleas of Cumberland County, PA, docketed -1- to Number 01 - 1005; and WHEREAS, on April 2, 2009, Barnett filed an amended complaint in the action for ejectment by confession in the aforementioned case docketed to No 09-1005; and WHEREAS, On April 2, 2009, Barnett filed a complaint in a second action for ejectment by confession of judgment in the Court of Common Pleas of Cumberland County, PA, docketed to Number 09 - 2082; and WHEREAS, Thomas and LLC filed Petitions to Strike/Open in response to all three complaints; and WHEREAS, a hearing is scheduled on this matter for June 10, 2009; and WHEREAS, the parties have reached an agreement of settlement in these matters. NOW THEREFORE, the parties hereto, each of them intending to be legally bound hereby, stipulate and agree as follows: 1. BACK RENT AND LATE CHARGES. Upon the signing of this Agreement Thomas and LLC shall pay Barnett the amount of $1,577.36 representing rent, interest and late charges, accruing during the period from December 1, 2008 through May 31, 2009. This will bring all rent payments current as of the date of this Agreement (exclusive of the June rent and cams due on June 10, 2009). 2. BACK CAMS. The following shall apply to the payment of the Back Cams: a. The parties agree that under the Settlement Agreement, as of March 31, 2009 the balance due for back cams is $12,397.44 (hereinafter referred to as "Back Cams"). b. Thomas and LLC did not pay Barnett the installment payment of Back Cams in the amount of $3,347.31 ($3,099.36 principal and 247.65 interest) due on March 31, 2009. C. Upon the signing of this Agreement, Thomas and LLC shall pay Barnett the amount of $3,347.31 in full satisfaction of the amounts due as referenced in paragraph 2(b) above. This will bring all CAM payments current as of the date of this Agreement. d. Additional payments of Back Cams shall be paid by Thomas/LLC as follows: -2- Due Date Payment Balance 6/30/09 3285.32 6198.72 9/30/09 3223.33 3099.36 12/30/09 3166.35 0 ($3,099.66 of each payment is principal) e. In the event the Back Cam payments are not made by the 15th day of the month following the Due Date, Thomas/LLC shalt pay a one time $250.00 late fee together with a $10.00/day penalty. The $10.00/day penalty shall accrue until the default is cured or until the expiration of the 30 day default notice period (see paragraph 2 (h)), whichever is earlier. f. In the event that Thomas and LLC sell the restaurant business at 6108 Carlisle Pike, the remaining balance of the Back Cams shall be paid in full within seven days of the date of settlement. g. Upon payment of the amounts set forth in this paragraph 2(d) of this Agreement prior to expiration of the 30 day notice of default, if any, Barnett agrees that all cams predating the date of the Settlement Agreement are paid in full. h. In the event, (i) Thomas and/or LLC default in the payment of Back Cams and (ii) after Thomas and LLC have been given 30 days written notice to cure said default in the payment of Back Cams, and (iii) Thomas and/or LLC fail to cure the default in the payment of Back Cams within the 30 day notice period, then in addition to the Back Cams owed as set forth in paragraph 4 (d) herein, Thomas and LLC shalt owe Barnett the difference between $19,204.36 minus $3,099.36 times the number of Back Cam payments made after the date of this Agreement. This 30 day notice of default shall only apply to overdue CAMS, and not overdue rent. 3. ADJOINING LOT. The following shalt apply to paragraph 33 of the Lease and the ability of Landlord to build on the tot between the Carlisle Pike and the strip mall: -3- a. The last sentence of paragraph 33 of the Lease states, "Further, Landlord will not take any action that would further impair the visibility of the Leased Premises from the Carlisle Pike." b. Thomas and LLC agree to delete from the Lease this last sentence of paragraph 33 of the Lease as set forth in subparagraph 3 (a) above. C. Barnett agrees that in the event any structure is built or erected upon the lot between the Carlisle Pike and the restaurant operated in the Leased Premises that Barnett will use his best efforts not to interfere with the existing parking that is used for the restaurant and the rest of the strip mall. d. Barnett agrees to give Thomas and LLC the lesser of $5,000.00 or 20% of the cost of a sign as credit against cams or rent at the time a building is commenced on the lot between the restaurant and the Carlisle Pike for the erection of a new sign to advertise the restaurant. If no sign is erected, no credit shall be given. e. Thomas and LLC may erect a separate sign on the Carlisle Pike which may be a digital sign, at tenant's expense (minus the above credit), to provide the restaurant with more visibility, provided the sign complies with Township requirements. 4. POST SETTLEMENT AGREEMENT RENT AND CAMS. The following applies to the rent and cams accruing after the date of the Settlement Agreement: a. But for the Back Cams and after the payment is made as set forth in paragraphs 1 and 2 herein, Thomas and LLC are current with the payment of rent and have a credit towards the cams that have not yet been billed. b. Barnett will provide Thomas's counsel with the bills for the past 12 months that support the cam payments. C. The parties agree that Thomas will be able to review the bills in support of the CAMS and Barnett will be open to adjusting the CAM charges in the event inconsistencies are determined. 5. SALE OF RESTAURANT. In the event Thomas and LLC find an able and willing buyer for the restaurant, and provided that Thomas and LLC are not in default under any terms of the Lease or any modifications thereto, Barnett will release Thomas and LLC from any and all obligations under the Lease and any modifications thereto, making the new tenant solely responsible for said charges. Barnett will not unreasonably withhold approval of the assignment of the Lease as amended to a new tenant. -4- 6. VALIDITY OF CONFESSION OF JUDGMENT CLAUSE. The validity of the confession of judgment clause (including the voluntary and knowing of waiver of rights thereunder) is acknowledged by Thomas and LLC and shall apply to the Lease and any modifications thereto, including this Agreement. 7. RATIFICATION. In all other respects, the terms of the Lease and Settlement Agreement are hereby ratified and confirmed, except as modified by this Agreement. 8. FILING. A copy of this Agreement shall be filed of record in each of the above referenced actions. 9. DISCONTINUANCE. Barnett agrees to mark both actions in ejectment by confession referenced above settled and discontinued. 10. BINDING EFFECT. This Agreement shall be binding on the heirs, successors, personal representative and assigns of the parties hereto. 11. COUNTERPARTS. This Agreement may be executed in counterparts, each of which shall be deemed to be an original, but all of which shall constitute one and the same agreement upon the execution by all parties. Witness: Barnett Property Management Inc., By: David J. Thomas 6108 Carlisle Pike Restaurant Co., LLC by: -5- 6. VALIDITY OF CONFESSION OF JUDGMENT CLAUSE. The validity of the confession of judgment clause (including the voluntary and knowing of waiver of rights thereunder) is acknowledged by Thomas and LLC and shall apply to the Lease and any modifications thereto, including this Agreement. 7. RATIFICATION. In all other respects, the terms of the Lease and Settlement Agreement are hereby ratified and confirmed, except as modified by this Agreement. 8. FILING. A copy of this Agreement shall be filed of record in each of the above referenced actions. 9. DISCONTINUANCE. Barnett agrees to mark both actions in ejectment by confession referenced above settled and discontinued. 10. BINDING EFFECT. This Agreement shall be binding on the heirs, successors, personal representative and assigns of the parties hereto. 11. COUNTERPARTS. This Agreement may be executed in counterparts, each of which shall be deemed to be an original, but all of which shall constitute one and the same agreement upon the execution by all parties. Witness: Barnett Property Management Inc., By: David J. Thomas 6108 Carlisle Pike Restaurant Co., LLC by: -5- RLED-C f=fuP OF THE PR O T F,')N )?- c?Y 2009 JUN - 9 PM 12: 4 2 Pi INNSJXt \rAfNIA BARNETT PROPERTY MANAGEMENT, INC., Plaintiff V. DAVID J. THOMAS and 6108 CARLISLE PIKE RESTAURANT COMPANY, LLC, Defendant IN THE COURT OF COMMON PLEAS ( CUMBERLAND COUNTY, PENNSYLV. CIVIL ACTION - LAW NO. 09-1005 CIVIL TERM / NO. 09-2082 CIVIL TERM ? ORDER OF COURT AND NOW, this 10th day of June, 2009, upon consideration of the from Diane G. Radcliff, Esq., attorney for Barnett Property Managen argument scheduled for June 10, 2009, is cancelled and all outstanding motions are deemed moot. BY THE COURT, /? esley Oler, Jr., ?Diane G. Radcliff, Esq. 3448 Trindle Road Camp Hill, PA 17011 Attorney for Plaintiff William L. Adler, Esq. 125 Locust Street Harrisburg, PA 17101 Attorney for Defendant :rc1 `-O t DES ?ri.at.ll?-? L it/of ?,rYl letter Inc., the and DIANE G. RADCLIFF, ESQUIRE 3448 Trindle Road, Camp Hill, PA 17011 Phone: 717-737-0100 Fax: 717-975-0697 E-mail: dianeradcliff@comcast.net June 8, 2009 The Honorable J. Wesley Oler, Jr. Cumberland County Courthouse One Courthouse Square Carlisle, PA 17013 Re: BPM vs. David Thomas and 6108 Carlisle Pike Restaurant Company Cumberland County Confession of Judgment No. 09-1005 Cumberland County Confession of Judgment No. 09-2082 Dear Judge Oler: I am pleased to advise you that the parties resolved their differences in t e above referenced cases and executed the attached Stipulated Agreement which I will be filing of record. I am, therefore, requesting that you cancel the hearing scheduled in these cases for June 10, 2009 commencing at 1:30 p.m. Very truly yours, DIA , ESQUIRE DGR/dr Enclosure(s): StIoulated Agreement Transmitted to Addressee by mail and email cc: Barnett Property Management, Inc. w/encl by mail William L. Adler, Esquire w/encl by-maii and email File RLED-OFF fCE OF THEE °c'C:T-?`C)NOTARY 2009 JUN I 1 AM 9: 27 '' P ; E.VANIA