HomeMy WebLinkAbout09-3189Cohen Seglias Pallas Greenhall & Furman, PC
Jason A. Copley, PA I.D. #72774
jcopley@cohenseglias.com
Michael L. Solomon, PA I.D. # 36031
msolomon@cohenseglias.com
240 N. Third Street, 7d' Floor
Harrisburg, PA 17101
Attorneys for Plaintiff
COMMERCIAL/INDUSTRIAL REALTY IN THE COURT OF COMMON PLEAS OF
COMPANY d/b/a NAI/CIR CUMBERLAND COUNTY, PENNSYLVANIA
1015 Mumma Road, 2°d Floor
Wormleysburg, PA 17043
Plaintiff
TOD G. SHEDLOSKY and
LISA T. SHEDLOSKY,
6346 N. Powderhorn Road
Mechanicsburg, PA 17055
Defendants
NOTICE
YOU HAVE BEEN SUED IN COURT. If you wish to defend against the claims set forth in the
following pages, you must take action within twenty (20) days after this Complaint and Notice
are served, by entering a written appearance personally or by attorney and filing in writing with
the Court your defenses or objections to the claims set forth against you. You are warned that if
you fail to do so the case may proceed without you and a judgment may be entered against you by
the Court without further notice for any money claimed in the Complaint or for any other claim
or relief requested by the Plaintiff. You may lose money or property or other rights important to
you.
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 S. Bedford Street
Carlisle, PA 17013
1-800-990-9108
717-249-3166
AVISO
USTED HA SIDO DEMANDADO/A EN CORTE. Si usted desea defenderse de las demandas
que se presentan mas adelante en las siguientes paginas, debe tomar acci6n dentro de los
pr6ximos veinte (20) dias despues de la notificaci6n de esta Demanda y Aviso radicando
personalmente o por medio de un abogado una comparecencia escrita y radicando en la Corte por
escrito sus defensas de, y objecciones a, las demandas presentadas aqui en contra suya. Se le
advierte de que si usted falla de tomar acci6n como se describe anteriormente, el caso puede
proceder sin usted y un fallo por cualquier suma de dinero reclamada en la demanda o cualquier
otra reclamaci6n o remedio solicitado por el demandante puede ser dictado en contra suya por la
Corte sin mas aviso adicional. Usted puede perder dinero o propiedad u otros derechos
importantes para usted.
USTED DEBE LLEVAR ESTE DOCUMENTO A SU ABOGADO INMEDIATAMENTE. SI
USTED NO TIENE UN ABOGADO, LLAME O VAYA A LA SIGUIENTE OFICINA. ESTA
OFICINA PUEDE PROVEERLE INFORMACION A CERCA DE COMO CONSEGUIR UN
ABOGADO.
SI USTED NO PUEDE PAGAR POR LOS SERVICIOS DE UN ABOGADO, ES POSIBLE
QUE ESTA OFICINA LE PUEDA PROVEER INFORMACION SOBRE AGENCIES QUE
OFREZCAN SERVICIOS LEGALES SIN CARGO O BAJO COSTO A PERSONAS QUE
CUALIFICAN.
Cumberland County Bar Association
32 S. Bedford Street
Carlisle, PA 17013
1-800-990-9108
717-249-3166
Cohen Seglias Pallas Greenhall & Furman, PC
Jason A. Copley, PA I.D. #72774
jcopley@cohenseglias.com
Michael L. Solomon, PA I.D. # 36031
msolomon@cohenseglias.com
240 N. Third Street, 76'Floor
Harrisburg, PA 17101
Attorneys for Plaintiff
COMMERCIAL/INDUSTRIAL REALTY
COMPANY d/b/a NAUCIR
1015 Mumma Road, 2nd Floor
Wormleysburg, PA 17043
Plaintiff
V.
TOD G. SHEDLOSKY and
LISA T. SHEDLOSKY,
6346 N. Powderhorn Road
Mechanicsburg, PA 17055
Defendants
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
NO.: Og- 3191 C?d- T
COMPLAINT
Plaintiff, Commercial/Industrial Realty d/b/a NAUCIR ("NAUCIR") by and through its
undersigned counsel, hereby files this Complaint against Defendants, Tod G. Shedlosky and Lisa
T. Shedlosky ("Defendants"), and in support thereof avers the following:
1. NAUCIR, is a corporation organized and existing under the laws of the Commonwealth
of Pennsylvania, with its principal place of business located at 1015 Mumma Road, 2nd
Floor, Wormleysburg, Cumberland County, Pennsylvania.
2. Defendants are husband and wife, who reside at 6345 N. Powderhorn Road,
Mechanicsburg, Hampden Township, Cumberland County, Pennsylvania.
3. On or about April 2007, Defendants entered into a "One-Party Listing Contract-Leases"
with NAUCIR pursuant to which the Defendants retained NAI/CIR to provide certain real
estate brokerage services (the "Listing Contract"). A true and correct copy of the Listing
Contract is attached hereto as "Exhibit A."
4. Within the Listing Contract, the Defendants acknowledged that NAUCIR had "produced
prospective Lessee for the property situate in the Township of Shippensburg".
5. The Listing Contract included a commission formula which was "due and payable at
commencement of the lease and payment of first month's rent with Kazi Foods of New
Jersey, Inc./KFC and/or other Yum Brand Restaurants."
6. Upon information and belief, on or about October 19, 2007, Defendants entered into a
Ground Lease with Kazi Foods of New Jersey, Inc.
7. Addendum No. 1 to the aforesaid Ground Lease contains terms that establish the date
upon which rent payments shall commence and imposes a requirement for payment of
first month's rent within forty-eight (48) hours of September 3, 2008. A true and correct
copy of Addendum No. 1 is attached hereto as "Exhibit B".
8. NAUCIR has placed demand upon the Defendants for payment of its real estate
commission, which demand has not been honored by the Defendants. A true and correct
copy of NAI/CIR's demand letter is attached hereto as "Exhibit C".
9. NAUCIR has performed its responsibilities pursuant to the Listing Contract to the benefit
of and acceptance by the Defendants, but the Defendants have failed to pay for the
services rendered by NAUCIR.
COUNT I - BREACH OF CONTRACT
10. NAI/CIR incorporates Paragraphs 1 through 9 as though more fully set forth at length
herein.
11. The Defendants are obligated to make payment to NAUCIR for the services rendered
pursuant to the Listing Contract.
12. Despite demand, the Defendants materially breached their obligations under the Listing
Contract by failing and refusing to make payments that are due and owing to NAUCIR.
13. As a direct and proximate result of the Defendants' material breach, NAUCIR has
suffered, and continues to suffer damages in the amount of $69,615, not including
interest.
WHEREFORE, Plaintiff, Commercial/Industrial Realty, Inc. d/b/a NAUCIR, demands
judgment in its favor and against Defendants, Tod G. Shedlosky and Lisa T. Shedlosky, in the
amount of $69,615, plus interest, costs due to suit and all other relief that the Court deems just
and proper.
COUNT II - UNJUST ENRICHMENT
14. NAUCIR incorporates Paragraphs 1 through 13 as though more fully set forth at length
herein.
15. NAUCIR supplied valuable services to the Defendants for their use and benefit in
procuring a tenant for the Defendants' real property.
16. NAUCIR expected to be compensated for the services it provided to the Defendants.
17. Upon information and belief, the Defendants have received and enjoy the benefits of
NAI/CIR's services supplied to it, without compensating NAUCIR for its work.
18. The value of the services supplied by NAUCIR and received and retained by the
Defendants is $69,615.
19. The Defendants have not paid any money for the services supplied by NAUCIR, and the
Listing Contract balance of $69,615 remains unpaid.
20. NAUCIR has conferred a benefit upon the Defendants at a value of $69,615 without being
adequately compensated for such benefit.
21. The Defendants' retention of the benefit upon them by NAUCIR without paying NAUCIR
for the outstanding balance is unjust.
WHEREFORE, Plaintiff, Commercial/Industrial Realty, Inc. d/b/a NAUCIR, demands
judgment in its favor and against the Defendants in the amount of $69,615, plus interest, costs
due to suit and all other relief that the Court deems just and appropriate.
Respectfully submitted,
Cohen Seglias Pallas
Greenhall & Furman, PC
Date: 5k `)+{ By: ?i J?"-a G Z ,
Jason V. Copley, PA # 72774
Michael L. Solomon, PA ID # 36031
240 North Third Street, 7t' Floor
Harrisburg, PA 17101
(717) 234-5530
Attorneys for Plaintiff
VERIFICATION
I, Robin Zellers, COO, of Commercial Industrial Realty, Inc. d/b/a NAUCIR, have read
the foregoing Complaint and hereby affirm and verify that it is true and correct to the best of my
knowledge, information and belief. I verify that all of the statements made in the foregoing
Complaint are true and correct and that false statements made therein may subject me to the
penalties of 18 Pa.C.S.A. Section 4904, relating to unsworn falsification to authorities.
t?
Date:
o in Zellers
EXHIBIT A
cI R
P. O. BOX 8910, CAMP HILL, PA 17001-8910,761-5070
ONE PARTY LISTING CONTRACT - LEASES
THIS AGREEMENT, made this day of April , 2007, between NAI/CIR, hereinafter
referred to as "BROKER", and _ Tod Shedlosky hereinafter referred to as "LESSOR".
WITNESSETH that said BROKER has produced prospective Lessee for the property situate in
the Township of Shippensburg, described as follows to wit:
NOW, in consideration thereof, LESSOR agrees to pay BROKER a commission of
four(4%) percent of the net lease, due and payable at commencement of the lease and payment of
the first month's rent'with Kazi Foods of New Jersey, Inc /KFC and/or other Yum Brand
Ract?nrari+a
If, during the term hereof, the property is sold, exchanged, or otherwise transferred to
the Lessee, the BROKER shall be entitled to a commission of N/A (0%) percent.
No commissions due on options exercised by Kazi Foods.
THIS AGREEMENT shall be binding upon the undersigned LESSOR, its heirs, executors,
administrators, successors, and assigns.
THE LESSOR, having carefully read and considered this Agreement, hereby acknowledges
receipt of a copy of this Agreement.
IN WITNESS WHEREOF, intending to be legally bound, the BROKER and LESSOR have caused
this Agreement to be executed and delivered the day and year first written above.
BROKER: NAI/CIR
WITNESS
By : !? J Cs?-
LESSOR:
(SEAL)
By:
Title: 6' A.&-
Shedlosky, Tod One Party List Contract-WMG-sem-4-24-07; R5-7-07
EXHIBIT B
U7/ Lei/ GPJCIti lµ: 54 !1IJtbb/5'L B GLADSTONE PAGE 02/05
LEASE ADDENDUM NO. 1
This Addendum No. 1 is made as of this 3rd day of September, 2008, by and
between Tod G. Shedlosky and Lisa T. Shedlosky ("Landlord") and Kazi Foods of
New Jersey, Inc. ("Tenant") and modifies that certain Ground Lease between the
parties dated October 19, 2007, for Premises constituting Lot 4 as shown on the "Land
Subdivision/Development for T/L Shedlosky" as recorded April 4, 2006, in Cumberland
County Plan Book 92, Page 46.
1. Notwithstanding Article 2 of the said Ground Lease, the initial twenty (20) year
term and the payment of rent shall commence the earlier of (i)'the date. Tenant-opens.
for business, or (ii) as of February 1, 2009, provided that Tenant shall, within forty-eight
(48) hours of full execution of this Addendum, pay Landlord Ten Thousand ($10,000.00)
Dollars advance and nonrefundable rent, constituting the monthly rent installment of
$6,250.00 due for February, 2009, and a $3,750.00 partial rent payment for the month
of March, 2009. The remainder of the March, 2009, monthly rent installment shall be
paid on or before March 1, 2009.
2. Except as expressly modified by this Addendum, all terms and provisions of
the said Ground Lease remain in full force and effect.
Signed with intent to be legally bound.
LANDLORD:
Tod G. Shedlosky
TENANT:
Kazi Foods of New Jersey, Inc.
By:
Name:
Title: C.??Q•,c:a
Lisa T. Shedlosky
EXHIBIT C
COHEN SEGLIAS PALI-IS GREENHAI..L&FURMAN PC
May 8, 2009
Tod G. Shedlosky
Lisa T. Shedlosky
6346 N. Powderhom Road
Mechanicsburg, PA 17055
Re: NIA/CIR v. Shedlosky
Dear Mr. and Mrs. Shedlosky:
Jason A. Copley
Attorney At Law
240 North Third Steet, 7th Floor
Harrisburg, PA 17101
T: 717.234.5530 F: 717.213.0731
icopley@cohenseglias.com
www.cohenseglias.com
This office has been retained by NAUCIR with respect to the funds that are due and
owing under the attached "One Party Listing Contract - Leases" executed by both parties in
April 2007 (the "Listing Contract").
In connection with the Listing Contract, NAUCIR hereby demands payment of the stated
"commission of Four (4%) percent of the net lease, due and payable at commencement of the
lease and payment of the first month's rent with Kazi Foods of New Jersey, Inc./KFC and/or
other Yum Brand Restaurants." The amount due and owing since September 2008, is
$69,615.00
Please contact me immediately to make payment arrangements. If we do not hear from
you by Wednesday, May 13, 2009, we will file an action against you both immediately to collect
the amount due and owing together with interest.
If you have any questions, please do not hesitate to contact me.
Very truly yours,
Jason X.Copy
/aaz
VIA CERTIFIED MAIL & 1St CLASS MAIL
cc: William Gladstone
Robin Zellers
Philadelphia i Pittsburgh I Wilmington I Harrisburg
New Jersey I West Virginia
T THE
2009 VA 19 Fill l2. 4,. 0
# ?'?
Sheriffs Office of Cumberland County
R Thomas Kline qtr of cumbrr T7 Edward L Schorpp
Sheri' t Solicitor
.' Jody S Smith
Ronny R Anderson
Chief Deputy OFFCE OF 'r HE SKERIFF Civil Process Sergeant
SHERIFF'S RETURN OF SERVICE
05/18/2009 06:50
18, 2(
6346 N
the san
05/18/2009 06:50 F
18,20(
time
- Shawn Harrison, Deputy Sheriff, who being duly sworn according to law, states that on May
at 1850 hours, he served a true copy of the within Complaint and Notice, upon the within named
t, to wit: Lisa T. Shedlosky, by making known unto Tod G. Shedlosky, husband of defendant at
'owderhorn Road Mechanicsburg, Cumberland County, Pennsylvania 17055 its contents and at
time handing to him personally the said true and correct copy of the same.
I - Shawn Harrison, Deputy Sheriff, who being duly sworn according to law, states that on May
at 1850 hours, he served a true copy of the within Complaint and Notice, upon the within named
t, to wit: Tod G. Shedlosky, by making known unto himself personally, defendant at 6346 N.
orn Road Mechanicsburg, Cumberland County, Pennsylvania 17055 its contents and at the same
ding to him personally the said true and correct copy of the same.
SHERIFF COST: $54.80
May 20, 2009
2009-3189
/Industrial Realty Co. v Lisa Shedlosky
SO ANSWERS
Y
R THOMAS KLINE, SHERIFF
DeuyS i
G T,
LAW OFFICES STEPHEN C. NUDEL, PC
Stephen C. Nudel, Esquire
Attorney ID #41703
Bret Keisling, Esquire
Attorney ID #201352
219 Pine Street
Harrisburg, PA 17101
(717) 236-5000
COMMERCIAL/INDUSTRIAL
REALTY COMPANY
d/b/a NAI/CIR,
Plaintiff
V.
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PA
NO. 2009-3189
TOD G. SHEDLOSKY and
LISA T. SHEDLOSKY,
Defendants
CIVIL ACTION
JURY TRIAL DEMANDED
DEFENDANTS' PRELIMINARY OBJECTIONS
TO PLAINTIFF'S COMPLAINT
1. Procedural and Factual History
1. Plaintiff filed a Complaint in the above captioned action on or about May
19, 2009.
2. Defendants are Tod G. Shedlosky and Lisa T. Shedlosky, husband and
wife.
3. This action arises from Plaintiff's contention that it is owed commissions
by Defendants regarding the lease of real estate.
4. Plaintiff's action is predicated upon a "One Party Listing Contract -
Leases" ("Listing Contract") executed between Plaintiff and Defendant Tod G.
Shedlosky. See Plaintiff's Complaint, Exhibit A.
a. Preliminary Objection Pursuant to Pa.R.C.P.1028(a)(4) for le al
insufficiency of a pleading (Demurrer) in the Form of A Motion to Strike Lisa
T. Shedlosky as a Defendant.
5. Paragraphs 1-4 above are incorporated herein as if set forth at length.
6. A preliminary objection is appropriate where a party fails to state a claim
upon which relief can be granted. Pa.R.C.P. 1028(a)(4).
7. The Listing Contract is executed by Plaintiff and Defendant Tod G.
Shedlosky.
8. Defendant Lisa G. Shedlosky is not a party to the Listing Contract.
9. Defendant Lisa G. Shedlosky did not execute the Listing Contract.
10. Defendant Lisa G. Shedlosky is a lessor, along with her husband, Tod, of
the premises at the heart of this dispute. However, Defendant Lisa Shedlosky's role as
Lessor does not create any contractual relationship between her and Plaintiff.
11. Plaintiff does not offer any proof, other than Plaintiff s bald assertion that
she is liable for obligations arising under a Listing Contract to which she is not a party
that supports Lisa Shedlosky's inclusion as a Defendant.
12. Plaintiff cannot offer any proof that supports Lisa Shedlosky's inclusion as
a Defendant, because none exists.
13. Because there is no proof of a contractual relationship between Defendant
Lisa Shedlosky and Plaintiff, Defendant Lisa Shedlosky should be stricken as a
Defendant with prejudice.
2
Wherefore, Defendant Lisa T. Shedlosky respectfully requests this Honorable
Court Grant her preliminary objection and dismiss her as a Defendant with prejudice, and
order Plaintiff to pay her costs including attorney's fees to compensate her for her
expenses related to this action.
b. Preliminary Obiection Pursuant to Pa.R.C.P.1028(a)(4) for legal
insufficiency of a pleading (Demurrer) in the Form of a Motion to Dismiss
Plaintiffs Com Taint with Prejudice.
14. Paragraphs 1-13 above are incorporated herein as if set forth at length.
15. A preliminary objection is appropriate where a party fails to state a claim
upon which relief can be granted. Pa.R.C.P. 1028(a)(4).
16. Plaintiff asserts a claim for commission based upon its services as a real
estate broker.
17. As a real estate broker, Plaintiff is subject to the Pennsylvania Real Estate
Licensing and Registration Act ("Act"). 63 P.S. § 455.101 et. seq.
18. The Act provides that:
(b) (1) A licensee may not perform a service for a consumer of real estate
services for a fee, commission or other valuable consideration paid by or on
behalf of the consumer unless the nature of the service and the fee to be
charged are set forth in a written agreement between the broker and the
consumer that is signed by the consumer. This paragraph shall not prohibit
a licensee from performing services before such an agreement is signed,
but the licensee is not entitled to recover a fee, commission or other
valuable consideration in the absence of such a sinned agreement.
63 P.S. § 455.606a (emphasis added).
19. The Act further specifies what must be contained in an Agreement between
a broker and a consumer including:
(1) A statement that the broker's fee and the duration of the contract have
been determined as a result of negotiations between the broker and the
seller/landlord or buyer/tenant.
(2) A statement describing the nature and extent of the broker's services to
be provided to the seller/landlord or buyer/tenant and the fees that will be
charged.
(3) A statement identifying any possibility that the broker, or any licensee
employed by the broker, may provide services to more than one consumer
in a single transaction and if so, an explanation of the duties that may be
owed the other party and whether the broker may accept a fee for those
services.
(6) A statement describing the purpose of the Real Estate Recovery Fund
established under section 801 and the telephone number of the commission
at which the seller can receive further information about the fund.
(7) A statement regarding any possible conflicts of interest and informing
the consumer of the licensee's continuing duty to timely disclose any
conflicts of interest.
63 P.S. § 455.608a.
20. The Listing Contract attached to the Complaint as Exhibit A fails to include
any of the language required by statute as stated more fully above.
21. As stated above, a broker, here the Plaintiff, is precluded by the Act from
recovering a "fee, commission, or other valuable consideration" because the information
4
required by 63 P.S. § 455.608a was not a part of the Listing Contract. See 63 P.S. §
455.606a.
22. Because Plaintiff is unable to show that the statutory language is present in
its Listing Contract, its Cause of Action for Count I - Breach of Contract must be
dismissed with prejudice.
23. In addition, Count II for Unjust Enrichment must be dismissed with
prejudice because, if the absence of the statutory language causes Count I - Breach of
Contract to be dismissed, Plaintiff cannot maintain an action for unjust enrichment based
upon the absence of a contract, because to do so would render the Act a nullity.
Wherefore, Defendants Tod G. Shedlosky and Lisa T. Shedlosky respectfully
request this Honorable Court Grant their preliminary objection and dismiss with
prejudice Plaintiff's Complaint in its entirety pursuant to Pa.R.C.P. 1028(a)(4) for legal
insufficiency of a pleading (Demurrer).
c. Preliminary Obeection Pursuant to Pa.R.C.P. 1028(a)(4) for legal
insufficiency of a Pleading Demurrer in the Form of a Motion to Strike
Count II - Unjust Enrichment.
24. Paragraphs 1-23 above are incorporated herein as if set forth at length.
25. A preliminary objection is appropriate where a party fails to state a claim
upon which relief can be granted. Pa.R.C.P. 1028(a)(4).
26. Count I of Plaintiff's Complaint is for Breach of Contract.
27. Count 11 of Plaintiff's Complaint is for Unjust Enrichment.
28. In Pennsylvania, it is clear that "the doctrine of quasi-contract, or unjust
enrichment, is inapplicable where a written or express contract exists." Northeast Fence
& Iron Works, Inc. v. Murphy Quigley Co., 933 A.2d 664, 669 (Pa. Super. 2007).
29. Plaintiff cannot plead both the existence of a contract and a cause of action
for unjust enrichment.
30. Plaintiff cannot argue that the causes of action are in the alternative,
because Paragraph 19 of the Complaint states that "the Listing Contract balance of
$69,615 remains unpaid." See Complaint, at ¶ 19.
31. Because Plaintiff expressly references a written contract, and predicates its
claim for damages upon said contract, there cannot, as a matter of law, be a concurrent
claim for unjust enrichment.
32. Further, Plaintiff, having pled that its claim for relief for unjust enrichment
is predicated upon a contract, should not be allowed to simply re-plead its cause of action
for unjust enrichment absent reference to the Listing Contract as a basis for its claim for
damages.
33. Accordingly, Plaintiff's Count II for Unjust Enrichment must be dismissed
with prejudice.
Wherefore, Defendants Tod G. Shedlosky and Lisa T. Shedlosky respectfully
request this Honorable Court Grant their preliminary objection and dismiss Count II of
6
the Complaint with prejudice or, in the alternative, to Order Plaintiff to re-plead Count II
so that it conforms with Pennsylvania law.
d. Preliminary Obiections pursuant to Rule 1028 (a)(2) in the form of a Motion
to Strike for inclusion of impertinent matter in Defendants' Prayer for Relief.
34. Paragraphs 1-33 above are incorporated herein as if set forth at length.
35. A preliminary objection in the nature of a motion to strike off impertinent
matter is an appropriate means by which a party can attack an erroneous prayer for
damages. Hudock v. Donegal Mut. Ins. Co., 264 A.2d 668, 672 fn. 2 (Pa. 1970).
36. Plaintiff's prayers for relief request inter alia that the Court grant "all other
relief that the Court deems just and equitable." See Prayers for Relief, Complaint, pp. 3-4.
37. An open-ended and unjustified request for relief that is not supported with
any averments or with the law is inappropriate and not permitted.
38. Defendants are prejudiced because the effect of such a broad prayer for
relief is to subject them to unknown and potentially unlimited relief with no effective way
to prepare.
39. If Plaintiff seeks a certain relief, it must articulate it in an appropriate
manner so that the Defendants may respond in kind.
Wherefore, Defendants Tod G. Shedlosky and Lisa T. Shedlosky respectfully
request this Honorable Court Grant their preliminary objection and Strike the phrase "all
other relief that the Court deems just and equitable" from Plaintiff s prayers for relief.
7
e. Preliminary Obiection Pursuant to Pa.R.C.P.1028(a)(4) for legal
insufficiency of a pleading (Demurrer) in the Form of A Motion to Strike
prayer for relief requesting Interest.
40. Paragraphs 1-39 above are incorporated herein as if set forth at length.
41. Plaintiff includes a request for "interest" in its prayer for relief.
42. The Listing Contract does not contemplate that interest will be paid as a
result of the contract.
43. If Plaintiff asserts some other basis for interest, it has not identified said
basis.
44. Defendants are prejudiced because they are unable to prepare a defense to
the imposition of interest if they cannot be certain on what basis Plaintiff seeks to impose
interest.
Wherefore, Defendants Tod G. Shedlosky and Lisa T. Shedlosky respectfully
request this Honorable Court Grant their preliminary objection and Strike the request for
"interest" from Plaintiff s prayers for relief.
f. Preliminary Obeection Pursuant to Pa.R.C.P. 1028(a)(2) and Pa.R.C.P.
1019(h) & (i) for failure to include a written agreement upon which a claim
for damages is predicated.
45. Paragraphs 1-44 above are incorporated herein as if set forth at length.
46. A preliminary objection is proper based upon the "failure of a pleading to
conform to law or rule of court...." See Pa.R.C.P. 1028(a)(2).
8
47. Pa.R.C.P. No. 1019(h) states that "[w]hen any claim or defense is based
upon an agreement, the pleading shall state specifically if the agreement is oral or
written."
48. In $$ 6-7 of the Complaint, Plaintiff alleges that Defendant entered into a
"Ground Lease" with Kazi Foods of New Jersey, Inc., as a basis for Plaintiff's claim that
it is entitled to a commission.
49. Plaintiff attached a purported copy of an Addendum to the Ground Lease as
Exhibit B of the Complaint.
50. Plaintiff did not attach a copy of the Ground Lease itself.
51. Plaintiff's request for damages in the form of real estate commission is
predicated upon the purported Ground Lease between the lessor and lessee.
52. Plaintiff's failure to attach a copy of the Ground Lease while including just
an addendum violates Pa.R.C.P. No. 1019(h).
53. Accordingly, the Addendum attached to the Complaint as Exhibit B should
be stricken.
54. In the alternative, Plaintiff should be Ordered to re-plead its complaint and
attach a copy of the Ground Lease to its Amended Complaint.
9
Wherefore, Defendants Tod G. Shedlosky and Lisa T. Shedlosky respectfully
request this Honorable Court Grant their preliminary objection and Strike Exhibit B to
the Complaint or, alternatively, re-plead its Complaint by attaching a copy of the
purported Ground Lease.
Respectfully submitted,
LAW OFFICES STEPHEN C. NUDEL, PC
Date: W, ZCCI
Ste13 Nude'1, Esquire
Attorney ID #41703
Bret Keisling, Esquire
Attorney ID #201352
219 Pine Street
Harrisburg, PA 17101
(717) 236-5000
Attorneys for Defendant
10
CERTIFICATE OF SERVICE
I hereby certify that a copy of the foregoing has been duly served upon the
following, by depositing a copy of the same in the United States Mail, first-class, postage
prepaid, at Harrisburg, Pennsylvania, as follows:
Michael L. Solomon, Esquire
240 North Third Street, 7t' Floor
Harrisburg, PA 17101
Date:
Bre Keisli g, Esquire
(}'''` e' L ppp???
t. )? ?1 lG. 1 J"sa i t
2?0? ,?L'? l 9 ? ? l?? ? ?`
????,?
V ?i?r ?F ?
COMMERCIAL/INDUSTRIAL REALTY
COMPANY d/b/a NAI/CIR
1015 Mumma Road, 2°d Floor
Wormleysburg, PA 17043
V.
Plaintiff
TOD G. SHEDLOSKY and
LISA T. SHEDLOSKY,
6346 N. Powderhorn Road
Mechanicsburg, PA 17055
Defendants
To the Prothonotary:
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
NO.: 09-3189 Civil
PRAECIPE
Please enter judgment in favor of Plaintiff, Commercial/Industrial Realty Company d/b/a
NAI/CIR, and against Defendants, Tod G. Shedlosky and Lisa T. Shedlosky, in the amount of
$69,615.00 plus costs and interest.
Respectfully submitted,
Cohen Seglias Pallas
Greenhall & Furman, PC
Date: (or2?Iv ? g
I y: ' .
Jason . Copley, PA III) # 72774
Michael L. Solomon, PA ID # 36031
240 North Third Street, 7d' Floor
Harrisburg, PA 17101
(717) 234-5530
Attorneys for Plaintiff
# 725 806-v 1 02656-0001
Cohen Seghas Pallas Greenhall & Furman, PC
Jason A. Copley, PA I.D. #72774
jcopley@cohenseglias.com
Michael L. Solomon, PA I.D, # 36031
msolomon@cohenseglias.com
240 N. Third Street, 7`s Floor
Harrisburg, PA 17101
Attorneys for Plaintiff
COMMERCIAL/INDUSTRYAL REALTY IN THE COURT OF COMMON PLEAS OF
COMPANY d/b/a NAVCIR : CUMBERLAND COUNTY, PENNSYLVANIA
1015 Mumma Road, 2nd Floor
Wormleysburg, PA 17043
Plaintiff
V.
NO,: 09-3189 Civil
TOD G. SHEDLOSKY and
LISA T. SHEDLOSKY,
6346 N. Powderhorn Road
Mechanicsburg, PA 17055
Defendants
TO: Tod G. Shedlosky and Lisa T. Shedlosky
DATE OF NOTICE: June 9, 2009
IMPORTANT NOTICE
YOU ARE IN DEFAULT BECAUSE YOU HAVE FAILED TO ENTER A WRITTEN
APPEARANCE PERSONALLY OR BY ATTORNEY AND FILE IN WRITING WITH THE
COURT YOUR DEFENSES OR OBJECTIONS TO THE CLAIMS SET FORTH AGAINST
YOU. UNLESS YOU ACT WITHIN TEN DAYS FROM THE DATE OF THIS NOTICE, A
JUDGMENT MAY BE ENTERED AGAINST YOU WITHOUT A HEARING AND YOU
MAY LOSE YOUR PROPERTY OR OTHER IMPORTANT RIGHTS.
4,
YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE, rF 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 rNFORMATION ABOUT AGENCIES TI-LAT MAY OFFER LEGAL
SERVICES TO ELIGIBLE PERSONS AT A REDUCED FEE OR NO FEE.
Cumberland County Bar Association
32 S. Bedford Street
Carlisle, PA 17013
1-800-990-9108
717-249-3166
AVISO IM PORTANTE
USTED ESTA EN REBELDIA PORQUE HA FALLADO DE REGISTRAR
COMPARECENCIA ESCRITA POR SI MISMO 0 A TRAVES DE UN ABOGADO Y
SOMETER CON LA CORTE SUS DEFENSAS U OBJECCIONES A LOS CARGOS QUE SE
HAN PRESENTADO CONTRA USTED. A MENOS QUE USTED ACTUE DENTRO DE
DIEZ DIAS DE HABER RECIBIDO ESTE AVISO, LA CORTE PUEDE TOMAR UNA
DECISION EN CONTRA SUYA SIN TENER DERECHOS A UNA VISTA Y USTED PUEDE
PERDER SU PR.OPIEDAD U OTROS DERECHOS IMPORTANTES.
USTED DEBE LLEVAR ESTE DOCUMENTO A SU ABOGADO RTNEDIATAMENTE. SI
LISTED NO TIENE UN ABOGADO, LLAME 0 VAYA A LA SIGUIENTE OFICINA. ESTA
OFICINA PUEDE PROVEERLE INFORMACION A CERCA DE COMO CONSEGUIR UN
ABOGADO.
ST USTED NO PUEDE PAGAR POR LOS SERVICIOS DE UN ABOGADO, ES POSIBLE
QUE ESTA OFICINA LE PUEDA PROVEER INFORMACION SOBRE AGENCIAS QUE
OFREZCAN SERVICIOS LEGALES SIN CARGO 0 BAJO COSTO A PERSONAS QUE
CUALIFICAN.
Cumberland County Bar Association
32 S. Bedford Street
Carlisle, PA 17013
1-800-990-9108
717249-3166
- !J
Respectfully submitted,
Cohen Seglias
Furman, PC
Date: f f By:
on A. Copley, PA ID # 72774
ichael F. Solomon, PA ID # 36031
240 North Third Street, 7?' Floor
Harrisburg, PA 17101
(717) 234-5530
Attorneys for Plaintiff
' r
.. ?? . L
COMMERCIAL/INDUSTRIAL REALTY IN THE COURT OF COMMON PLEAS OF
COMPANY d/b/a NAI/CIR CUMBERLAND COUNTY, PENNSYLVANIA
1015 Mumma Road, 2nd Floor
Wormleysburg, PA 17043
Plaintiff
V.
TOD G. SHEDLOSKY and
LISA T. SHEDLOSKY,
6346 N. Powderhom Road
Mechanicsburg, PA 17055
Defendants
NO.: 09-3489 Civil
CERTIFICATE OF SERVICE
I hereby certify that the foregoing Notice was sent by first class, postage prepaid mail this
day to the following:
Tod G. Shedlosky
Lisa T. Shedlosky
6346 N. Powderhorn Road
Mechanicsburg, PA 17055
Respectfully submitted,
Cohen SegIias Pallas
Greenhall & Furman, PC
Date: p/qla9' gy;
( i..
Alison A. Zortman, L 1 Assistant
240 North Third Stree , 7" Floor
Hanisburg, PA 17101
(717)234-5530
#92106-v1 02656.0001
CL
3 Z?
En (j)
cr o m iv
cICL CL
FD7
-uo
-?
o?
°'
a, a
Z ,Np
? O
C
,a
p
v
g z
8.00
UN%
AC7N
O
m to
Um)
?W
o t L v 4?
mc°o0
N ' m
o O
?D O
r
; / -3v
Cohen Seglias Pallas Greenhall & Furman, PC
Jason A. Copley, PA I.D. #72774
jcopley@cohenseglias.com
Michael L. Solomon, PA I.D. # 36031
msolomon@cohenseglias.com
240 N. Third Street, 7 h Floor
Harrisburg, PA 17101
Attorneys for Plaintiff
COMMERCIAL/INDUSTRIAL REALTY IN THE COURT OF COMMON PLEAS OF
COMPANY d/b/a NAI/CIR CUMBERLAND COUNTY, PENNSYLVANIA
1015 Mumma Road, 2nd Floor
Wormleysburg, PA 17043
Plaintiff
V.
TOD G. SHEDLOSKY and
LISA T. SHEDLOSKY,
6346 N. Powderhorn Road
Mechanicsburg, PA 17055
NO.: 09-3189 Civil
Defendants
To: Tod G. Shedlosky and Lisa T. Shedlosky, Defendants
You are hereby notified that on _ -) , 2009, the following (Ordef)
(Deeree) (Judgment) has been entered against you in the above-captioned case.
$69,615.00 plus costs and interest.
Date: 51 /. la-t2
Prothonotary CA V
I hereby certify that the name and address of the proper person(s) to receive this notice is:
Tod G. Shedlosky
Lisa T. Shedlosky
6346 N. Powderhorn Road
Mechanicsburg, PA 17055
A: Tod G. Shedlosky and Lisa T. Shedlosky, Defendidos/as
Por este medio se le esta notificando que el de del 2009, el/la
siguiente (Alen), (fie), (Pallo) ha sido anotado en contra suya en el caso mencionado en el
epigrafe.
Fecha:
Prothonotario
Certifico que la siguiente direccion es la del defendido/a segun indicada en el certificado
de residencia:
Tod G. Shedlosky
Lisa T. Shedlosky
6346 N. Powderhorn Road
Mechanicsburg, PA 17055
Cohen Seglias Pallas Greenhall & Furman, PC
Jason A. Copley, PA I.D. #72774
jcopley@cohenseglias.com
Michael L. Solomon, PA I.D. # 36031
msolomon@cohenseglias.com
240 N. Third Street, 7t` Floor
Harrisburg, PA 17101
Attorneys for Plaintiff
COMMERCIAL/INDUSTRIAL REALTY : IN THE COURT OF COMMON PLEAS OF
COMPANY d/b/a NAI/CIR
1015 Mumma Road, 2nd Floor
Wormleysburg, PA 17043
Plaintiff
v.
TOD G. SHEDLOSKY and
LISA T. SHEDLOSKY,
6346 N. Powderhorn Road
Mechanicsburg, PA 17055
Defendants
: CUMBERLAND COUNTY, PENNSYLVANIA
NO.: 09-3189 Civil
NOTICE
YOU HAVE BEEN SUED IN COURT. If you wish to defend against the claims set forth in the
following pages, you must take action within twenty (20) days after this Complaint and Notice
are served, by entering a written appearance personally or by attorney and filing in writing with
the Court your defenses or objections to the claims set forth against you. You are warned that if
you fail to do so the case may proceed without you and a judgment may be entered against you by
the Court without further notice for any money claimed in the Complaint or for any other claim
or relief requested by the Plaintiff. You may lose money or property or other rights important to
you.
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 S. Bedford Street
Carlisle, PA 17013
1-800-990-9108
717-249-3166
AVISO
USTED HA SIDO DEMANDADO/A EN CORTE. Si usted desea defenderse de las demandas
que se presentan mas adelante en las siguientes paginas, debe tomar acci6n dentro de los
pr6ximos veinte (20) dias despues de la notificaci6n de esta Demanda y Aviso radicando
personalmente o por medio de un abogado una comparecencia escrita y radicando en la Corte por
escrito sus defensas de, y objecciones a, las demandas presentadas aqui en contra suya. Se le
advierte de que si usted falla de tomar acci6n como se describe anteriormente, el caso puede
proceder sin usted y un fallo por cualquier suma de dinero reclamada en la demanda o cualquier
otra reclamaci6n o remedio solicitado por el demandante puede ser dictado en contra suya por la
Corte sin mas aviso adicional. Usted puede perder dinero o propiedad u otros derechos
importantes para usted.
USTED DEBE LLEVAR ESTE DOCUMENTO A SU ABOGADO INMEDIATAMENTE. SI
USTED NO TIENE UN ABOGADO, LLAME O VAYA A LA SIGUIENTE OFICINA. ESTA
OFICINA PUEDE PROVEERLE INFORMACION A CERCA DE COMO CONSEGUIR UN
ABOGADO.
SI USTED NO PUEDE PAGAR POR LOS SERVICIOS DE UN ABOGADO, ES POSIBLE
QUE ESTA OFICINA LE PUEDA PROVEER INFORMACION SOBRE AGENCIAS QUE
OFREZCAN SERVICIOS LEGALES SIN CARGO O BAJO COSTO A PERSONAS QUE
CUALIFICAN.
Cumberland County Bar Association
32 S. Bedford Street
Carlisle, PA 17013
1-800-990-9108
717-249-3166
Cohen Seglias Pallas Greenhall & Furman, PC
Jason A. Copley, PA I.D. #72774
jcopley@cohenseglias.com
Michael L. Solomon, PA I.D. # 36031
msolomon@cohenseglias.com
240 N. Third Street, 7'h Floor
Harrisburg, PA 17101
Attorneys for Plaintiff
COMMERCIAL/INDUSTRIAL REALTY IN THE COURT OF COMMON PLEAS OF
COMPANY d/b/a NAI/CIR CUMBERLAND COUNTY, PENNSYLVANIA
1015 Mumma Road, 2nd Floor
Wormleysburg, PA 17043
Plaintiff
V.
TOD G. SHEDLOSKY and
LISA T. SHEDLOSKY,
6346 N. Powderhorn Road
Mechanicsburg, PA 17055
Defendants
: NO.: 09-3189 Civil
AMENDED COMPLAINT
Plaintiff, Commercial/Industrial Realty d/b/a NAI/CIR ("NAI/CIR") by and through its
undersigned counsel, hereby files this Amended Complaint against Defendants, Tod G.
Shedlosky and Lisa T. Shedlosky ("Defendants"), and in support thereof avers the following:
NAI/CIR, is a corporation organized and existing under the laws of the Commonwealth
of Pennsylvania, with its principal place of business located at 1015 Mumma Road, 2"a
Floor, Wormleysburg, Cumberland County, Pennsylvania.
2. Defendants are husband and wife, who reside at 6345 N. Powderhorn Road,
Mechanicsburg, Hampden Township, Cumberland County, Pennsylvania.
Defendants are owners, as tenants by the entireties of real property situate in
Shippensburg Township, Cumberland County, PA, which real property is also identified
as Tax Parcel 36-12-0320-052 (the "Real Estate")
4. Defendant, Tod G. Shedlosky, is the holder of active Real Estate Salesperson-Standard
License RS284883 issued by the Pennsylvania Real Estate Commission, and upon
information and belief was so licensed at all times relevant hereto.
5. On or about April 2007, Defendant, Tod G. Shedlosky, acting on his own behalf and
acting with actual authority, or, in the alternative, with apparent authority for his spouse,
Defendant, Lisa T. Shedlosky, entered into a "One-Party Listing Contract Leases" with
NAUCIR pursuant to which the Defendants retained NAI/CIR to provide certain real
estate brokerage services (the "Listing Contract") with regard to the Real Estate. A true
and correct copy of the Listing Contract is attached hereto as "Exhibit A".
6. Within the Listing Contract, the Defendants acknowledged that NAUCIR had "produced
prospective Lessee for the property situate in the Township of Shippensburg".
7. The Listing Contract included a commission formula which was "due and payable at
commencement of the lease and payment of first month's rent with Kazi Foods of New
Jersey, Inc./KFC and/or other Yum Brand Restaurants."
8. On or about October 19, 2007, Defendants, signing as Landlord, entered into a Ground
Lease with Kazi Foods of New Jersey, Inc. A true and correct copy of the Ground Lease
is attached hereto as Exhibit B.
9. Regarding the subject of this Amended Complaint, the Ground Lease provides as follows:
"Article 37. Broker's Commission:
Landlord and Tenant represent to one another that no broker has been engaged by
either or is entitled to a commission in connection with the negotiation of this Lease
EXCEPT William M. Gladstone of NAI-CIR, to whom Landlord has agreed to pay a
commission under separate agreement." (Emphasis provided in original)
10. Addendum No. 1 to the aforesaid Ground Lease, signed by the Defendants in their
capacity as Landlord, contains terms that establish the date upon which rent payments
shall commence and imposes a requirement for payment of first month's rent within
forty-eight (48) hours of September 3, 2008. A true and correct copy of Addendum No. 1
is attached hereto as "Exhibit C".
11. Defendant, Lisa T. Shedlosky, signed both the Ground Lease and Addendum No. 1
thereto as "Landlord", and in so acting confirmed her status as a "Lessor" of the Real
Estate and thereby knew, should have known and/or ratified by her subsequent action,
that Defendant, Tod G. Shedlosky, acted with actual and/or apparent authority to bind her
to the Listing Contract.
12. NAI/CIR has placed demand upon the Defendants for payment of its real estate
commission, which demand has not been honored by the Defendants. A true and correct
copy of NAI/CIR's demand letter is attached hereto as "Exhibit D".
13. NAUCIR has performed its responsibilities pursuant to the Listing Contract to the benefit
of and acceptance by the Defendants, but the Defendants have failed to pay for the
services rendered by NAUCIR.
COUNT I - BREACH OF CONTRACT
14. NAUCIR incorporates Paragraphs 1 through 9 as though more fully set forth at length
herein.
15. The Defendants are obligated to make payment to NAI/CIR for the services rendered
pursuant to the Listing Contract.
16. Despite demand, the Defendants materially breached their obligations under the Listing
Contract by failing and refusing to make payments that are due and owing to NAI/CIR.
17. As a direct and proximate result of the Defendants' material breach, NAI/CIR has
suffered, and continues to suffer damages in the amount of $69,615, not including
interest.
WHEREFORE, Plaintiff, Commercial/Industrial Realty, Inc. d/b/a NAI/CIR, demands
judgment in its favor and against Defendants, Tod G. Shedlosky and Lisa T. Shedlosky, in the
amount of $69,615, plus interest, costs due to suit and all other relief that the Court deems just
and proper.
COUNT II - UNJUST ENRICHMENT
18. NAI/CIR incorporates Paragraphs 1 through 13 as though more fully set forth at length
herein.
19. NAUCIR supplied valuable services to the Defendants for their use and benefit in
procuring a tenant for the Defendants' real property.
20. NAI/CIR expected to be compensated for the services it provided to the Defendants.
21. Upon information and belief, the Defendants have received and enjoy the benefits of
NAI/CIR's services supplied to it, without compensating NAI/CIR for its work.
22. The value of the services supplied by NAUCIR and received and retained by the
Defendants is $69,615.
23. The Defendants have not paid any money for the services supplied by NAUCIR.
24. NAUCIR has conferred a benefit upon the Defendants at a value of $69,615 without being
adequately compensated for such benefit.
25. The Defendants' retention of the benefit upon them by NAI/CIR without paying NAUCIR
for the outstanding balance is unjust.
WHEREFORE, Plaintiff, Commercial/Industrial Realty, Inc. d/b/a NAUCIR, demands
judgment in its favor and against the Defendants in the amount of $69,615, plus interest, costs
due to suit and all other relief that the Court deems just and appropriate.
Respectfully submitted,
Cohen Seglias Pallas
Greenhall & Furman, PC
Date: ?o/ 5?vy By:
I
Jaso . Copley, PA ID # 72774
Michael L. Solomon, PA ID # 36031
240 North Third Street, 7th Floor
Harrisburg, PA 17101
(717) 234-5530
Attorneys for Plaintiff
r4Ai C I R
P. O. BOX 8910, CAMP HILL, PA 17001-8910, 761-5070
ONE PARTY LISTING CONTRACT - LEASES
THIS AGREEMENT, made this day of April , 2007, between NAI/CIR, hereinafter
referred to as "BROKER", and Tod Shedlosky hereinafter referred to as "LESSOR".
WITNESSETH that said BROKER has produced prospective Lessee for the property situate in
the Township of Shippensburg, described as follows to wit:
NOW, in consideration thereof, LESSOR agrees to pay BROKER a commission of
four(4%) percent of the net lease, due and payable at commencement of the lease and payment of
the first month's rent with Kazi Foods of New Jersey, Inc /KFC and/or other Yum Brand
Restaurants.
If, during the term hereof, the property is sold, exchanged, or otherwise transferred to
the Lessee, the BROKER shall be entitled to a commission of N/A (0%) percent.
No commissions due on options exercised by Kazi Foods.
THIS AGREEMENT shall be binding upon the undersigned LESSOR, its heirs, executors,
administrators, successors, and assigns.
THE LESSOR, having carefully read and considered this Agreement, hereby acknowledges
receipt of a copy of this Agreement.
IN WITNESS WHEREOF, intending to be legally bound, the BROKER and LESSOR have caused
this Agreement to be executed and delivered the day and year first written above.
BROKER: NAI/CIR _
WITNESS
By: 6'3---W Cc,? (SEAL)
LESSOR:
By:
Title : 6U A&-
Shedlosky, Tod One Party List Contract-WMG-sew-4-24-07; R5-7-07
TABLE OF CONTENTS
Landlord: Tod G. and Lisa T. Shedlosky
Tenant: Kazi Foods of New Jersey, Inc.
Premises: Lot 4, "Land Subdivision/Development for T/L Shedlosky", recorded in
Cumberland County Plan Book 92, Page 46
Initial Monthly Rental Installment: $6,250
TABLE OF CONTENTS
.....................................
1. Premises ...............................................................................
2. Term ........................................................................................................................ ... 1
3. Rent ........................................................................................................................ ... 1
4. Option to Renew ...................................................................................................... ... 2
5. Use of Premises ...................................................................................................... ... 2
6. Due Diligence ........................................................................................................... ... 3
7. Covenant of Title and Quiet Enjoyment .................................................................... ... 3
8. Survey and Evidence of Title ...................................................................................... 3
9. Construction of Improvements .................................................................................... 4
10. Repairs ..................................................................................................................... 5
11. Taxes ....................................................................................................................... 6
12. Utilities ................................................................................................................... .. 8
13. Signage .................................................................................................................. .. 8
14. Stormwater Pond Maintenance .............................................................................. .. 8
15. Option to Purchase ................................................................................................ .. 8
16. Reserved ................................................................................................................ .. 9
17. Insurance and Indemnification ............................................................................... 10
18. Damage to or Destruction of Improvements ........................................................... 11
19. Eminent Domain ..................................................................................................... 11
20. Compliance with Laws ........................................................................................... 12
21. Mechanics Liens .................................................................................................... 12
22. Reserved ................................................................................................................. 12
23. Trade Fixtures, Machinery and Equipment ............................................................ 12
24. Alterations, Title to and Removal of Improvements ................................................ 13
25. Assignment and Subletting .................................................................................... 13
26. Leasehold Mortgages ............................................................................................. 14
27. Events of Default and Landlord's Remedies .......................................................... 15
28. Landlord's Access to Premises ............................................................................... 16
29. Invalidity of Provisions ............................................................................................ 17
30. Captions ................................................................................................................. 17
31. Surrender of Premises ........................................................................................... 17
32. Holding Over .......................................................................................................... 17
33. Covenant not to Compete ...................................................................................... 17
34. Service of Notice .................................................................................................... 17
35. Successors and Assigns ..................................... .
.................................................. 18
36. Recording ............................................................................................................... 18
37. Broker's Commission ............................................................................................. 19
38. Amendments .......................................................
39. Estoppel Certificate ................................................................................................ 19
40. Relationship of Parties ........................................................................................... 19
41. Entire Agreement ................................................................................................... 19
42. Time Shall be of the Essence ................................................................................ 20
GROUND LEASE
This round lease ("Lease") is made and entered into this day of
QC??S9- , 2007, by and between Ted G. Shedlosky and Lisa T.
Shedlosky, of 6346 N. Powderhorn Rd., Mechanicsburg, PA, hereinafter referred to as
"Landlord" and Kazi Foods of New Jersey, Inc., a New Jersey corporation with offices
at 134 W. Chocolate Ave., Hershey, Pennsylvania, hereinafter referred to as "Tenant".
ARTICLE 1. PREMISES:
Landlord for and in consideration of the covenants hereinafter contained
and made on the part of the Tenant, does hereby demise and lease to Tenant the
following described Premises in the Township of Shippensburg, County of Cumberland
and State of Pennsylvania, constituting Lot 4 as shown on the "Land
Subdivision/Development for T/L Shedlosky" as recorded April 4, 2006, in Cumberland
County Plan Book 92, Page 46.
Together with all Landlord's rights, easements and appurtenances in
adjoining and adjacent land, highways, roads, streets, lanes, whether public or private,
reasonably required for the construction, installation, maintenance, operation and
service of buildings, improvements, sewer, water, gas, power and other utility lines or
driveways to the above described parcel of real estate, including "Tenant's
Improvements" hereinafter described. Said real estate being hereinafter referred to as
the "Premises".
ARTICLE 2. TERM:
The term of this Lease shall be twenty (20) years. The term and payment
of rent shall commence on (a) the date Tenant's restaurant to be constructed on the
Premises opens for business or (b) one hundred eighty (180) days after Tenant's
receipt of final non-appealable land development plan approval for Tenant's
Improvements, whichever date is prior in time. Either party may terminate this Lease if
approvals for Tenant's improvements are not received by August 1, 2008.
The parties hereto agree that when the commencement and expiration
dates of the term of the Lease become certain, they will complete and execute an
addendum hereto to reflect said dates.
ARTICLE 3. RENT:
The rent for the initial term of this lease shall be One Million Seven
Hundred Forty Thousand Three Hundred Seventy-five and 00/100 ($1,740,375.00)
Dollars, payable in monthly installments, in advance, on or before the first day of each
month, throughout the term of this Lease as follows:
Years 1 through 5: $6,250/month
Years 6 through 10: $6,875/month
Years 11 through 15: $7,562.50/month
Years 16 through 20: $8,318.75/month
The accrual of rent hereunder shall begin with the commencement of the
term of this Lease, but in the event that the commencement date shall occur on a day of
the month other than the first day of the month, the first rental payment (and the last
rental payment) shall be adjusted for the proportionate fraction of the whole month, so
that all rental payments other than the first shall be made and become due and payable
on the first day of each month. Any payment of rent or other amount due Landlord past
due by more than ten (10) days shall accrue a late fee of 5% of the amount past due.
ARTICLE 4. OPTION TO RENEW:
Tenant has the right to extend this Lease beyond the expiration date on
the following terms and conditions:
(a) Tenant may extend the term of this Lease for two additional
terms: one additional period of five (5) years and one additional period of four (4) years
and nine (9) months, with the extended term to begin on the day following the expiration
date of the Lease term, or the extended term as the case may be. All of the terms,
covenants, and provisions of the Lease shall apply to any extended Lease term(s)
except that the rent for such extended term shall be adjusted as set forth below.
(b) Tenant may exercise its option to extend this Lease by giving to
Landlord notice of its intention to do so not later than nine (9) months prior to the
expiration of the initial Lease term or the extended term, as the case may be. To
constitute effective notice of an intention of exercise the option under this Lease, the
notice must be sent by certified mail or nationally recognized overnight courier to
Landlord and must be postmarked no later than the date provided in this Section for
Tenant's exercise of the option.
(c) In the event that this Lease is extended pursuant to this section,
the rent for the renewal term(s) shall be payable in monthly installments, in advance, on
or before the first day of each month, throughout the extended term(s) as follows:
1st Extended Term: Years 21-25: $9,150.63/month
2nd Extended Term: Years 26 -29, 9 mos: $10,065.69/month
ARTICLE 5. USE OF PREMISES:
Subject to restrictions of record it is contemplated by Tenant hereunder
that the Premises will initially be used for the operation of a Yum Brands restaurant, e.g.
Kentucky Fried Chicken, Taco Bell and/or Long John Silvers, etc. by Tenant as a
franchisee. However, nothing herein contained shall be construed to prevent Tenant or
its permitted assignee or subtenants from using the Premises for any lawful purpose
after obtaining Landlord's written consent which consent shall not be unreasonably
withheld, or to require continuous business operations upon the Premises throughout
the term of this Lease, provided that if no operation occurs for more than six (6) months,
upon thirty (30) days notice, Landlord may recapture the Premises and this Lease shall
be null and void.
-2-
ARTICLE 6. DUE DILIGENCE.
Tenant shall have a period of two hundred forty (240) days from the date
of Landlord's execution of this Lease (the "Due Diligence Period") for the performance
of any and all due diligence and the preparation, submission and acquisition of all
governmental and any other necessary permits and approvals, including but not limited
to land development plan approval, application for which may be in Landlord's name as
reasonably required. Tenant may extend this period an additional ninety (90) days, in
thirty (30) day increments by written notice to Landlord in advance, accompanied by
payment of Two Thousand ($2,000.00) Dollars for each such thirty (30)-day increment,
which payment(s) are nonrefundable in the event of termination of this Lease, but shall
otherwise be applied to rent due upon commencement thereof.
Landlord agrees to assist and cooperate reasonably with Tenant at no out
of pocket cost to Landlord, including applying for and obtaining any and all permits and
approvals necessary for Tenant's use, occupancy and construction of improvements
upon the Premises. The term "permits and approvals" is intended to be interpreted
broadly, so as to include, e.g. zoning changes, variances, and other private and public
authorizations which may not expressly be denominated as a "permit" or "approval".
Tenant may enter upon the Premises and any adjoining property of Landlord for the
purpose of making such tests, inspections and examinations as Tenant may desire,
provided that Tenant shall repair any damage caused thereby.
During the Due Diligence Period, as may be extended, should any
condition (whether of the Premises, title, Landlord's real property, or otherwise) render
the Premises unsuitable for Tenant's intended use, including but not limited to the
inability to timely obtain all permits and approvals, in Tenant's sole judgment, Tenant
may terminate this Lease upon written notice to Landlord. Upon any such termination,
the parties shall have no further liability to one another, and Tenant shall provide copies
of its engineering, title and other due diligence work product to Landlord.
ARTICLE 7. COVENANT OF TITLE AND QUIET ENJOYMENT:
Landlord covenants that Landlord is well seized of and has good title to
the Premises, does warrant and will defend the title thereto and will indemnify Tenant
against any damage or expense which Tenant may suffer during the term of this Lease
by reason of any lien, encumbrance, restriction or defect in the title or the description
herein of the Premises. If, at any time, Landlord's title or right to receive rent hereunder
is disputed or there is a change of ownership of Landlord, by act of the parties or
operation of law, Tenant may withhold rent thereafter accruing until Tenant has been
furnished proof satisfactory to it as to the party entitled thereto.
ARTICLE 8. SURVEY AND EVIDENCE OF TITLE:
Within fifteen (15) days of the execution of this Lease, Landlord shall pay
for and deliver to Tenant, both a copy of the subdivision plan of the Premises and
evidence of Landlord's title to the Premises. Said Evidence of Title shall be in the form
-3-
of either an Attorney's Certificate of Title based upon an examination of an Abstract of
Title or public records in the County in which the Premises is located or a title insurance
policy.
Said Evidence of title shall show:
(a) That Landlord is vested with fee simple title and unrestricted
public access to the Premises free and clear of all liens and encumbrances and of any
defects which would affect the peaceful enjoyment of the Premises by Tenant for and
during the full term of the Lease and any extension thereof for Tenant's intended use
thereof.
(b) The legal description of the entirety of Landlord's real property
covered thereby.
If such Evidence of Title shall show defects in Landlord's title to the
Premises or that Landlord's title is subject to any matters as aforesaid, Tenant may, at
Tenant's sole and exclusive remedy, within thirty (30) days after receipt of such
Evidence of Title, by notice in writing given to Landlord, elect to terminate this Lease
and declare the same null and void and of no further force and effect, providing
Landlord has not eliminated those items objected to by Tenant, within fifteen (15) days
from the date of receiving such notice.
In the event that the Evidence of Title does not cover a current date, the
same shall be accompanied by a Certificate of No Change stating that the title has not
changed since the date of such Evidence of Title or, if changed, in what particulars. The
election herein conferred upon Tenant to terminate this Lease in case of defects in title
shall apply with equal force and effect to any defects disclosed by any such Certificate
of No Change. However, nothing herein contained shall be construed as limiting the
effect of Landlord's covenants and warranties contained herein, nor shall it be construed
as being a substitute thereof or as a lack of reliance by Tenant on said covenants and
warranties.
ARTICLE 9. CONSTRUCTION OF IMPROVEMENTS:
Within thirty (30) days of receipt of final unappealable land development
plan approval, Landlord agrees to complete the following improvements to/for the
Premises: pad ready within six (6") inches of final grade, with public sewer, public water
and natural gas lines available for Tenant's use within five (6) feet of the Premises.
Tenant shall, however, be responsible for the cost of any connection fees assessed by
any such utility, subject to its right to lawfully challenge same.
Tenant has the right to construct and agrees to construct, at its sole cost
and expense, improvements upon the Premises to include, but not limited to, a building,
driveways, parking area and hookup to Landlord provided utilities, (hereinafter referred
to as "Tenant's Improvements") in accordance with the final plans, specifications and
plot plan provided by Tenant, and such further improvements as may be required by
-4-
any law, ordinance, rule or regulation. Tenant, at its own cost and expense, shall
procure all necessary licenses and permits for the erection of the building(s), any on-
Premises signs and other improvements. All of Tenant's plans with respect to building
size, footprint and height are subject to Landlord's prior approval which approval shall
not be unreasonably withheld.
The building aforesaid, together with all other improvements, shall be
erected at such place on the Premises as designated upon Tenant's approved land
development plan.
ARTICLE 10. REPAIRS:
Tenant shall, at all times during the term of this Lease, at its own cost and
expense, keep and maintain or cause to be kept and maintained in good repair and
condition, ordinary wear and tear and the provisions of Article 18 hereof excepted, all
buildings, improvements and parking areas at any time constructed on the Premises
and shall use all reasonable precautions to prevent waste, damage or injury thereto.
Landlord shall not be required to furnish any services or facilities or to make any
improvements, repairs or alterations in or to the Premises during the term of this Lease
or any extensions thereof. Maintenance responsibilities for access drives and storm
water management facilities, among other matters, are set forth in the Declaration of
Cross Easement and Restriction recorded in Cumberland County Miscellaneous Book
726, Page 969 ("Declaration"). Landlord agrees to use commercially reasonable efforts
to enforce the provisions of that Declaration. With respect to the Declaration, as
between Landlord and Tenant: (1) Landlord hereby assigns to Tenant its rights and
privileges arising out of its status as owner of Lot 4, and (2) Tenant hereby agrees to
perform the obligations of Landlord arising out of its status as owner of Lot 4 modified
as follows:
(a) With respect to subparagraph 3(c), Tenant shall have no obligations to
maintain, repair or replace any unfinished portion of Easement 4A-2;
(b) With respect to subparagraph 4(c), Landlord, as Declarant, shall be
solely responsible for the proper completion of all improvements remaining to be
constructed over and across Easement 4A-2, with the timing of same to be at
Landlord's discretion.
(c) With respect to paragraph 5, Landlord represents and warrants that, in
the language of the Declaration: "said requirements are located within Lot No. 1 ";
(d) With respect to paragraph 10, Landlord alone shall be responsible for
the initial construction of any sidewalk(s) desired by Landlord or as may be required by
any governmental entity (whether in connection with Tenant's initial land development
plan or building permit approval(s) or otherwise) along Walnut Bottom Road; and
(e) With respect to paragraph 11, Tenant shall have the option, which
must be exercised during the Due Diligence Period, either to (a) share equally with
-5-
Landlord both the cost of erecting, maintaining, repairing and replacing a pylon sign on
Lot 4, and also the maximum square footage of signage allowable under Shippensburg
Township ordinances, or (2) elect not to participate in or pay for any portion of the
erecting, maintaining, etc. of such a sign, in which event Tenant shall at no time have
any liability therefor, nor shall Tenant have any right to utilize the said sign for any
purpose. In the latter event (which shall include Tenant's failure to timely elect either
option), the Landlord as Declarant shall have the absolute right and sole liability to
erect, maintain, repair and replace such pylon sign in reasonable proximity to the
location shown on Exhibit D of the Declaration, provided that such pylon sign and
attached signage shall not obstruct in a material way Tenant's access or the view of
Tenant's signage from Walnut Bottom Road; further, in such event, Landlord and
Tenant shall execute an amendment to this Lease providing commercially reasonable
terms for the benefit of both parties, e.g., reasonable access by Landlord,
indemnification and insurance provided by Landlord to Tenant, etc.; this provision shall
be specifically enforceable by both parties, by injunctive relief if necessary.
ARTICLE 11. TAXES:
Subject to the provisions of other paragraphs of this Article 11, Tenant
shall:
(a) As to the term of this Lease in addition to the rent provided
herein, pay and discharge punctually, all real estate taxes, special and general
assessments attributable to the Premises including water rents, rates and charges,
sewer rents and other governmental impositions and charges of every kind and nature
whatsoever, extraordinary as well as ordinary (hereinafter referred to as "taxes"), and
each and every installment thereof which shall or may for and during the term of this
Lease be charged, levied, laid, assessed, imposed upon or for or with respect to the
Premises or any part thereof, together with all interest and penalties thereon, under or
by virtue of all present or future laws, ordinances, requirements, orders, directives, rules
or regulations, of Federal, State, County, Town and City governments and of all other
governmental authorities whatsoever (all of which shall also be included in the term
"taxes" as heretofore defined).
(b) To the extent that the same may be permitted by law, Tenant,
its assignee or subtenant shall have the right to apply for the conversion of any
assessment for local improvements assessed during the term of this Lease for which
Tenant shall be responsible for the payment in order to cause the same to be payable in
annual installments, and upon such conversion, Tenant shall pay and discharge punctu-
ally said installments as they shall become due and payable throughout the term of this
Lease. Landlord agrees to permit the application for the foregoing conversion to be filed
in Landlord's name, if necessary, and shall execute any and all reasonable documents
requested by Tenant to accomplish the foregoing result. However, Tenant hereby
agrees that it shall not convert any assessment into an installment period which shall be
in excess of fifteen (15) years.
-6-
(c) Tenant shall be deemed to have complied with the covenants of
subparagraph (a) of this Article if payment of such taxes shall have been made either
within any period allowed by law or by the governmental authority imposing the same,
during which payment is permitted without penalty or interest or before the same shall
become a lien upon the Premises or, if Tenant is contesting such tax as permitted under
subparagraph (e) hereof, Tenant shall escrow the amount of such tax with Landlord.
(d) All such taxes, including assessments which have been
converted into installments as set forth in sub-paragraph (b) of this Article, which shall
become payable during each of the calendar or fiscal tax years, as the case may be, in
which the term of this Lease terminates, shall be apportioned and prorated between
Landlord and Tenant in accordance with the respective portions of such tax year during
which such lease term shall be in effect.
(e) Tenant, its assignee or subtenant shall have the right to contest
or review all such taxes by legal proceedings, or in such other manner as it may deem
suitable (which, if instituted, Tenant or its assignee or subtenant shall conduct promptly
at its own cost or expense, and free of any expense to Landlord and, if necessary, in the
name of and with the cooperation of Landlord, and Landlord shall execute all
documents necessary to accomplish the foregoing). Notwithstanding the foregoing,
Tenant shall promptly pay all such taxes if at any time the Premises or any part thereof
shall than be immediately subject to forfeiture, or if Landlord shall be subject to any
criminal liability, arising out of the non-payment thereof. The legal proceedings referred
to herein shall include appropriate certiorari proceedings and appeals from orders
therein and appeals from any judgments, decrees or orders. In the event of any
reduction, cancellation or discharge, Tenant shall pay the amount finally levied or
assessed against the Premises or adjudicated to be due or payable on any such
contested taxes.
(f) Landlord covenants and agrees that if there shall be any
refunds or rebates on account of the taxes paid by Tenant under the provisions of this
Lease, such refund or rebate shall belong to Tenant. Any such refunds received by
Landlord shall be deemed trust funds and as such are to be received by Landlord in
trust and paid to Tenant forthwith. Landlord will, upon the request of Tenant, sign any
receipts which may be necessary to secure the payment of any such refund or rebate,
and will pay over to Tenant such refund or rebate received by Landlord. Landlord further
covenants and agrees on request of Tenant at any time and from time to time, without
cost to Landlord, to make application individually (if legally required) or to join in
Tenant's application, (if legally required) for separate tax assessments for such portion
of the Premises as Tenant shall at any time and from time to time, designate. Landlord
hereby agrees upon request of Tenant to execute such instruments and to give Tenant
such assistance in connection with such application as shall be required by Tenant.
Nothing herein or in this Lease otherwise contained shall require or
be construed to require Tenant to pay any inheritance, estate, succession, transfer, gift,
franchise, income, rental or profit taxes, that are or may be imposed upon Landlord, its
heirs, successors or assigns.
-7-
(g) At Landlord's request, Tenant shall pay monthly along with
Rent the amount required to enable Landlord to pay Tenant's taxes as they come due
and Landlord shall reconcile the amount within 90 days after the end of each calendar
year.
(h) If the Premises leased by Tenant hereunder shall be part of a
larger tax parcel, then, and in that event, Tenant shall pay those real estate taxes which
shall be assessed against the building constructed upon the Premises and Tenant shall
pay a portion of the real estate taxes and assessments levied against the land in
proportion to the square footage of the Premises as compared to the square footage of
the entire tax parcel.
ARTICLE 12. UTILITIES:
Tenant agrees that it will pay all costs for water, sewer, gas, electricity and
other utilities used, consumed or wasted upon or in connection with the Premises during
the term hereof and of any renewals thereof, as and when the charges for the same
shall become due and payable.
ARTICLE 13. SIGNAGE:
Landlord will allow Tenant to utilize Landlord's existing, as well as any
additional or replacement, signage for Tenant's business, at no additional cost to
Tenant, provided that: (a) all costs of any signs and the installation and maintenance
thereof shall be paid solely by Tenant, the number, (b) size and location shall be subject
to the reasonable approval of Landlord, and (c) any such signs shall comply with
applicable ordinances.
ARTICLE 14. STORMWATER POND MAINTENANCE:
During the term of this Lease, Tenant shall comply with the terms of the
Declaration withy respect to storm water pond maintenance.
ARTICLE 15. OPTION TO PURCHASE:
Landlord does hereby grant and convey unto Tenant, during the first three
(3) years of this Lease upon commencement of the Lease term, an option to purchase
the Premises at a price of Nine Hundred Seventy-Five Thousand ($975,000.00) Dollars
during the first lease year, One Million Twenty-Three Thousand Seven Hundred Fifty
($1,023,750.00) Dollars during the second lease year, and One Million Seventy-Four
Thousand Nine Hundred Thirty-Seven and 50/100 ($1,074,937.50) Dollars during the
third lease year (the "Option Price"), based upon the date of Tenant's written notice of
exercise of its option. Tenant shall exercise its option to purchase by delivering to
Landlord written notice at any time during the first three (3) years of this Lease, along
with a good faith deposit of Five Thousand ($5,000.00) Dollars, which together with this
Lease shall constitute a binding agreement between the parties.
-8-
In the event that Landlord has properly installed and paid for sidewalk
along the entirety of the Premises abutting Walnut Bottom Road prior to settlement
upon exercise of the option, then the Option Price shall be increased by Five Thousand
($5,000.00) Dollars, payable in full at settlement.
Settlement on such purchase shall be held within ninety (90) days from
the date of Tenant's notice of election to exercise its option, at which time Tenant shall
pay the full purchase price, provided that credit shall be given against the purchase
price for the deposit.
At settlement, all real estate transfer taxes shall be paid in equal shares by
Landlord and Tenant. The deed shall be special warranty to Tenant or Tenant's
nominee.
Tenant's failure to exercise the option during the specified three (3) year
term thereof, or the failure of Tenant to pay the purchase price within the time specified
after exercise of said option, shall constitute either an automatic expiration of the option
or a default under the option whereby Landlord shall retain the deposit as liquidated
damages as Landlord's sole and exclusive remedy. If the Lease term is still in effect,
the Tenant shall continue under the terms of the Lease until expiration thereof.
In the event Landlord is unable to deliver such unencumbered title as will
be insured by an approved Pennsylvania title insurance company at regular rates
without exceptions, the Tenant shall have the option to be repaid its deposit in full and
to terminate this Lease anytime within the next six (6) months after the contemplated
settlement date, as long as three-months' notice of an intent to terminate is given and all
rental is paid for such remaining balance of the Lease period as terminated by the
Tenant; alternatively, Tenant shall have the option to cure any such encumbrances
and/or title objections and to deduct the expense of curing same from the option price.
ARTICLE 16. RIGHT OF FIRST REFUSAL:
In the event Landlord receives a bona fide third party offer to purchase the
Premises or Landlord's leasehold interest created herein at any time prior to the
expiration of the three (3) year term of the option to purchase granted Tenant in Article
15 above, and Landlord desires to accept said offer, Tenant shall have the right of first
refusal and option to purchase the same at the same price and upon the same terms
and conditions as offered by any such prospective buyer, whether such price is more or
less than the Option Price in Article 15. Before acceptance of any such offer to
purchase, Landlord shall notify Tenant in writing, as provided in Article 34 hereof,
setting forth in such notice the full details of such offer and offeror. Tenant shall have a
period of thirty (30) days after receipt of such notice in which to notify Landlord of its
election to purchase, under the terms of said offer, as set forth in said notice. In the
event of the exercise of the aforesaid right of first refusal by Tenant, the transaction and
purchase of the Premises by Tenant shall close, in accordance with the provisions of
said offer. At the closing, Landlord shall convey to Tenant good and merchantable title,
-9-
in fee simple, to the Premises, except any permitted mortgages and any encumbrances
created by Tenant, which conveyance shall be by special warranty deed.
In the event Tenant does not timely exercise its right of first refusal, and
Landlord proceeds to settlement on the said third party offer, then Tenant's Option to
Purchase granted in Article 15 above shall be void, provided that, should such
settlement not occur for any reason, then Tenant's said Option to Purchase under
Article 15 and Right of First Refusal under this Article 16 shall both continue in full force
and effect for the remainder of their three (3) year terms.
ARTICLE 17. INSURANCE AND INDEMNIFICATION:
Tenant shall, at its own cost and expense, prior to the commencement of
the term of this Lease secure from good and responsible company or companies doing
insurance business in the Commonwealth of Pennsylvania and maintain during the
entire term of this Lease and any extension thereof, the following insurance coverage:
(a) Comprehensive general liability insurance protecting Landlord
and Tenant against injury or damage to any person or property occurring in, on or about
the Premises in the amount of at least $3,000,000 combined single limit for injury to any
one person, injuries in any one occurrence, and property damage, upon which
policy(ies) Landlord shall be named as an additional insured; and
(b) Fire and extended coverage insurance on all buildings and
fixtures located on the Premises in an amount equal to at least eighty percent (80%) of
the full insurable value thereof, excluding excavating costs.
On securing the foregoing coverages, Tenant shall give Landlord written
notice thereof together with a certified copy of the appropriate policies.
All said insurance policies shall provide for notice to Landlord by the
insurance company in the event of default by Tenant in the payment of any premiums or
the performance of any other obligation of Tenant under said Policies. Should Tenant
fail to secure or maintain the foregoing insurance, Landlord shall be permitted to obtain
such insurance in the Tenant's name or as agent of Tenant and shall be compensated
by Tenant for the cost of the insurance premiums, which cost of paid premiums shall in-
clude interest on the same at the rate of ten percent (10%) per annum, compounded
daily, computed from the date Tenant receives written notice that the premiums have
been paid.
The foregoing insurance may be provided by Tenant under a so-called
blanket policy or policies, subject to all provisions of this Article 17.
Tenant shall defend, indemnify and save Landlord harmless against and
from any and all liabilities, losses, damages, costs and expenses (including reasonable
attorney's fees and disbursements) to the extent caused by : (a) any failure by Tenant to
make any payment to be made by it hereunder, (b) any failure by Tenant to fully perform
-10-
or observe any obligation or condition to be performed or observed by Tenant
hereunder, and/or (c) any negligent act or omission of Tenant, its agents, employees,
business invitees and/or guests upon the Premises.
ARTICLE 18. DAMAGE TO OR DESTRUCTION OF IMPROVEMENTS:
If the improvements on said Premises shall be damaged or rendered
untenantable by fire or other casualty, Tenant shall, within sixty (60) days from the date
of such damage or destruction, commence to repair or replace said improvements, and
the same shall be completed within a reasonable time thereafter. Tenant covenants and
agrees that, in the event of destruction or damage of the buildings or improvements or
any part thereof, and as often as any building or improvement on said Premises shall be
destroyed or damaged by fire, windstorm or other casualty, Tenant shall rebuild and
repair the same in such manner that the buildings or improvements so rebuilt and
repaired shall be of the same value as the building or buildings or improvements upon
the Premises prior to such damage or destruction. Provided, however, nothing in this
Article to the contrary, in the case of any damage or destruction occurring in the last five
(5) years of the original term of this Lease or during any extension of the term, to the
extent of fifty percent (50%) or more of the insurable value of the building, Tenant may,
at Tenant's option, to be evidenced by notice in writing given to Landlord within sixty
(60) days after the occurrence of such damage or destruction, in lieu of repairing or
replacing such building, elect to terminate this Lease, as of the date of said damage or
destruction. If Tenant should elect to terminate this Lease under the provisions of this
Article, then Tenant, at Landlord's option, shall either (a) assign to Landlord all
insurance proceeds available by reason of such damage or destruction of the building,
or (b) lawfully demolish and remove the building and all improvements above the level
of the pad and paving. In the event of such termination, Tenant shall pay the rental
required hereunder up to the date of the notice of termination.
ARTICLE 19. EMINENT DOMAIN:
If the whole or any part of the Premises shall be taken for any public or
quasi-public use under any statute or by right of eminent domain or by private purchase
in lieu thereof, in addition to such rights as may be afforded Tenant by law, Tenant
reserves unto itself the right to prosecute its claim for an award based upon injury
caused to its leasehold interest by such taking, without impairing any rights of Landlord
for the taking of or injury to the reversion.
In the event a part of the Premises shall be taken and that (a) the part so
taken includes the building on the Premises or any material Part thereof, or (b) the part
so taken shall consist of twenty-five percent (25%) or more of the total parking area or
(c) such part so taken shall result in cutting off access from the Premises to all adjacent
public streets and highways, then, and in any such event, Tenant may, at any time
either prior to or within a period of sixty (60) days after the date when possession of the
Premises shall be required by the taking authority, elect to terminate this Lease as of a
date no earlier than thirty (30) days after written notice of such election to terminate is
- 11 -
mailed to Landlord. In the event that Tenant shall fail to exercise any such option to
terminate this Lease or in the event that a part of the Premises shall be taken under
circumstances under which the Tenant will have no such option, then the Tenant shall,
at its own cost and expense and with reasonable promptness, restore the remaining
portion of the Premises to the extent necessary to reconstitute the improvements
thereon as a complete architectural unit, susceptible to the same use as that which was
in effect immediately prior to such taking, and the rent payable under the provisions of
this Lease shall be equitably reduced according to the decrease in the utility of the
Premises for Tenant's intended use and the effect thereof upon the business of Tenant.
ARTICLE 20. COMPLIANCE WITH LAWS:
Tenant shall comply with all Federal, State and local laws and ordinances
and all rules and regulations of any duly constituted authority, present and future,
affecting or respecting the use or occupancy of the Premises by Tenant or the business
at any time thereon transacted by Tenant or any subtenant of Tenant, after the
commencement of the term of this Lease ("Legal Requirements").
Tenant shall have the right, after prior written notice to Landlord to contest
the validity of any Legal Requirements by appropriate legal proceedings, provided
Landlord shall not be subject to any criminal or civil liability as a result of any legal
contest. Tenant shall indemnify and hold Landlord harmless from all loss, claims, and
expenses, including reasonable attorneys' fees, as a result of Tenant's failure to comply
with Legal Requirements or any contest relating to Legal Requirements.
ARTICLE 21. MECHANICS LIENS:
Tenant shall not suffer or permit any mechanic's liens or other liens to be
filed against the fee of the Premises nor against Tenant's leasehold interest in the land
nor any buildings or improvements on the Premises by reason of any work, labor,
services, or materials supplied or claimed to have been supplied to Tenant or anyone
holding the Premises or any part thereof through or under Tenant. If any such
mechanic's liens or materialman's lien shall be recorded against the Premises, or any
improvements thereof, Tenant shall cause the same to be removed or, in the
alternative, if Tenant in good faith desires to contest the same, Tenant shall be
privileged to do so but in such case Tenant hereby agrees to indemnify and save
Landlord harmless from all liability for damages occasioned thereby and shall, in the
event of a judgment of foreclosure upon said mechanic's lien, cause the same to be
discharged and removed prior to the execution of such judgment.
ARTICLE 22. RESERVED.
ARTICLE 23. TRADE FIXTURES MACHINERY AND EQUIPMENT:
Landlord agrees that all trade fixtures, machinery, equipment, furniture or
other personal property of whatever kind and nature kept or installed on the Premises
by Tenant or by Tenant's assignees or subtenants shall not become the property of the
-12-
Landlord or a part of the realty, no matter how affixed to the Premises and may be
removed by Tenant or its assignees or subtenants, in their discretion, at any time, and
from time to time, during the entire term of this Lease and any renewals. Upon request
of Tenant or Tenant's assignees or subtenants, Landlord shall execute and deliver
any Real Estate Consent or Waiver forms submitted by any Vendors, Landlords,
Chattel Mortgagees, or holders or owners of any trade fixtures, machinery, equipment,
furniture or other personal property of any kind and description kept or installed on the
Premises by Tenant or any subtenant setting forth the fact that the Landlord waives, in
favor of such Vendor, Landlord, Chattel Mortgagee or any holder or owner thereof,
any lien, claim, interest or other right therein superior to that of such Vendor, Landlord,
Chattel Mortgagee, owner or holder. Landlord shall further acknowledge that the
property covered by such Consent or Waiver forms is personal property and is not to
become a part of the realty, no matter how affixed thereto and that such property may
be removed from the Premises by the Vendor, Landlord, Chattel Mortgagee, owner or
holder at any time upon default by Tenant or its assignees or subtenants in the terms
of such Chattel Mortgage or other similar documents, free and clear of any claim or
lien of the Landlord.
ARTICLE 24. ALTERATIONS TITLE TO AND REMOVAL OF IMPROVEMENTS:
Tenant may make or permit any assignee or subtenant to make
alterations, additions and improvements to the interior of the Premises from time to
time, and, after obtaining Landlord's prior written consent which consent shall not be
unreasonably withheld, to the exterior of the Premises, and all such alterations,
additions and improvements, including those which may be constructed by Tenant in
accordance with Article 9 hereof, shall be and remain the property of Tenant, its
assignee or subtenant, as the case may be, at all times during the term of this Lease
and any extensions or renewals thereof.
Except for permitted mortgages as provided in Article 26 below, Tenant
shall have no authority to create or place any lien or encumbrance of any kind
whatsoever upon or in any manner to bind the interest of the Landlord in the
Premises, and Tenant covenants and agrees promptly to pay all sums legally due and
payable by it on account of any labor performed on the Premises upon which any lien
is or can be asserted upon the Premises or the improvements thereon.
ARTICLE 25. ASSIGNMENT AND SUBLETTING:
Tenant may assign this Lease, or sublet all or any part of the Premises,
at any time, with the prior written consent of Landlord, which consent will not be
unreasonably withheld. The assignee shall confirm in a writing acceptable to Landlord
its assumption of the obligations.
-13-
ARTICLE 26. LEASEHOLD MORTGAGES:
(a) Except as specifically provided otherwise in this Lease, Tenant shall
be permitted to mortgage Tenant's leasehold interest in the Premises without Landlord's
consent or approval.
(b) Landlord agrees that the provisions set forth in this Article 26 shall
apply to, and be for the benefit of, any mortgagee of Tenant's leasehold interest in the
Premises, whose mortgage is a first lien or second lien on Tenant's leasehold interest
("Leasehold Mortgagee"). Landlord shall be served with a copy of the mortgage
("Leasehold Mortgage") certified to be true by the Leasehold Mortgagee and a certified
true copy of the title insurance policy insuring the Leasehold Mortgage to be a first or
second lien on Tenant's leasehold interest in the Premises, or Landlord shall be
provided with other proof reasonably satisfactory to Landlord of the priority of the
Leasehold Mortgage.
(c) No notice of default, as provided in Article 27 of this Lease, shall be
valid, binding, and effective until notice is served on all Leasehold Mortgagees in the
manner set forth in this Lease, at the address set forth in the Leasehold Mortgage or the
address the Leasehold Mortgagee provides to Landlord according to the provisions set
forth in this Lease.
(d) If there is a default due to nonpayment of monetary obligations
payable directly by Tenant to Landlord ("Monetary Default"), Landlord shall not exercise
any of the rights and remedies provided in Article 27 or elsewhere in this Lease, or any
remedies provided by law, unless the Monetary Default shall have continued for at least
fifteen (15) days after notice to all Leasehold Mortgagees.
(e) If there is a curable default other than a Monetary Default ("Curable
Nonmonetary Default"), Landlord shall not exercise any of the rights and remedies
provided in Article 27 or elsewhere in this Lease, or any remedies provided by law,
unless the Curable Nonmonetary Default shall have continued for at least thirty (30)
days after notice to all Leasehold Mortgagees. However, if it is not reasonably possible
to cure the default within thirty (30) days, then the time period for curing the Curable
Nonmonetary Default shall be extended, provided that the default is cured as
expeditiously as practicable by actions undertaken diligently and in good faith.
(f) If there is a default due to bankruptcy, insolvency, or any other
noncurable default ("Noncurable Default"), Landlord shall not exercise any of the rights
and remedies provided in Article 27 or elsewhere in this Lease, or any remedies
provided by law, if within thirty (30) days after notice of default a Leasehold Mortgagee
notified Landlord that it will foreclose its Leasehold Mortgage, and that Leasehold
Mortgagee diligently and continuously commences and prosecutes to completion
foreclosure proceedings and sale of Tenant's leasehold interest in the Premises, or
causes that leasehold interest to be conveyed and assigned in lieu of foreclosure.
However, nothing contained in this Article 26(f) shall prohibit Landlord from exercising
its rights and remedies pursuant to Article 27 or other parts of this Lease (subject to the
-14-
other paragraphs of this Article 26), or any remedies provided by law, should there
occur a Monetary Default or Curable Nonmonetary Default after the occurrence of a
Noncurable Default.
(g) This Lease shall not be modified or amended, nor shall it be
voluntarily terminated by Landlord and Tenant, without the prior written consent of all
Leasehold Mortgagees.
(h) If the Evidence of Title required under Article 8 hereof disclosed any
defects in title which shall be objected to by Tenant's mortgage lender, Landlord shall,
upon written notice of such objection being given to Landlord by Tenant, have thirty (30)
days from the receipt of such notice to cure such defects and obtain Evidence of Title,
as defined in Article 8 hereof, certifying that such defects have been cured. If such
defects in title are not so cured within said thirty (30) day period, Tenant may, at its
option, as Tenant's sole and exclusive remedy, terminate this Lease. In the event this
Lease is so terminated, all monies, deposits and instruments shall be returned to the
respective parties.
ARTICLE 27. EVENTS OF DEFAULT AND LANDLORD'S REMEDIES:
(a) Any one or more of the following events shall constitute a default
under this Lease:
Tenant's failure to pay any installment of rent promptly on the day
when the same shall be due and payable and shall continue in such default for a period
of five (5) days after written notice thereof by Landlord;
Tenant's failure to observe or perform or cause to be observed or
performed any other term, covenant, or agreement under this Lease, and continuation
of this failure for a period of thirty (30) days after Landlord's written notice to Tenant
specifying the nature of Tenant's failure shall constitute an default under this Lease.
However, a failure as described in Subparagraph (c) shall not constitute a default if it is
curable but cannot with reasonable diligence be cured by Tenant within a period of thirty
(30) days, and if Tenant proceeds to cure the failure with reasonable diligence and in
good faith;
Filing of a petition in bankruptcy or insolvency, for reorganization or
the appointment of a receiver or trustee of all or a portion of Tenant's property, by
Tenant in any court pursuant to any statute either of the United States or of any state;
Filing of a petition in bankruptcy or insolvency, for reorganization or
the appointment of a receiver or trustee of all or a portion of Tenant's property, against
Tenant in any court pursuant to any statute either of the United States or of any state,
which is not dismissed within ninety (90) days of its filing; or
Tenant's assignment of the leasehold interest under this Lease for
the benefit of its creditors.
-15-
(b) Subject to the provisions of Article 26, if any event creating default
occurs, Landlord may elect to terminate Tenant's right of possession under this Lease
after thirty (30) days from the date of service of notice of the election. If this notice is
given, then at the expiration of the thirty (30) days all Tenant's rights, title, and interest
in the Premises shall expire completely, and Tenant shall quit and surrender the
Premises to Landlord. For purposes of this Article the term "Premises" shall include any
and all improvements erected thereon.
(c) At any time after the termination of Tenant's right of possession under
this Lease pursuant to paragraph (b) above, Landlord may enter and possess the
Premises by ejectment or otherwise, and Landlord may remove Tenant and all other
persons and property from the Premises. If Landlord takes the actions described in this
paragraph (c), Landlord may then possess the Premises and assume the right to
receive all rents, income, and profits from the Premises, and Landlord may also sell any
of the improvements.
(d) The expiration of this Lease or termination of Tenant's right of
possession pursuant to this Article shall not relieve Tenant of its liability and obligation
to pay the rent and any other charges accrued prior to these events, or relieve Tenant of
liability for damages for breach, including without limitation, rent due through the
balance of the term. These liabilities and obligations of Tenant shall survive any
expiration or termination of the Lease or any entry and possession by Landlord.
(e) After the expiration of this Lease or termination of Tenant's right of
possession under this Lease, Landlord shall use commercially reasonable efforts to
mitigate damages to relet the Premises, in whole or in part, either in its own name or as
agent of Tenant, for a term or terms that, at Landlord's option, may be for the remainder
of the then-current term of this Lease or for any longer or shorter period.
(f) Tenant shall be entitled to a credit if the rent received on reletting
together with the proceeds of the sale of any improvements exceeds the rent required
pursuant to this Lease. Tenant shall remain liable for the difference between the rent
reserved under this Lease, and the rent collected and received, if any, by Landlord
during the remainder of the unexpired term, which Tenant shall pay in monthly
payments as these payments become due and payable.
(g) Tenant expressly agrees to pay all expenses that Landlord may incur
for reasonable attorneys' fees or brokerage commissions, and all other costs paid or
incurred by Landlord for enforcing the terms and provisions of this Lease, reletting the
Premises, restoring the Premises to good order and condition and maintaining same.
ARTICLE 28. LANDLORD'S ACCESS TO PREMISES:
Landlord shall have reasonable rights of access to the Premises for the
purpose of inspecting the condition thereof from time to time throughout the term of this
Lease and any renewals thereof. Landlord shall also have the right during the last three
-16-
(3) months of the Lease term or any renewal thereof to show the Premises to any
prospective tenant at reasonable times during business hours.
ARTICLE 29. INVALIDITY OF PROVISIONS:
If any If any term, covenant, condition or provision of this Lease or the
application thereof to any person or circumstance shall, at any time, or to any extent, be
invalid or unenforceable, the remainder of this Lease or the application of such term or
provision to persons or circumstances other than those as to which it is held invalid or
unenforceable, shall not be affected thereby, and each term, covenant, condition and
provision of this Lease shall be valid and enforceable to the fullest extent permitted by
law.
ARTICLE 30. CAPTIONS:
The captions appearing in this Lease are inserted only as a matter of
convenience and in no way define, limit, construe or describe the scope or intent of
such Articles of this Lease or in any way affect this Lease.
ARTICLE 31. SURRENDER OF PREMISES:
Tenant shall, after the last day of the term or any extension thereof or
upon any earlier termination of such term, surrender and yield up to Landlord all of
Tenant's Improvements on such Premises in good order, condition and state of repair,
reasonable wear and tear and the provisions of Article 18 hereof excepted.
ARTICLE 32. HOLDING OVER:
In the event Tenant continues to occupy the Premises after the last day of
the term hereby created or after the last day of any extension of said term, and the
Landlord elects to accept rent thereafter, a tenancy from month to month with rent at
150% of the prior month's rent only shall be created under and subject to all other
provisions contained herein.
ARTICLE 33. COVENANT NOT TO COMPETE:
Subject to the pre-existing lease rights of the owner of the adjacent Lot
No. 1 as shown on the Declaration, Landlord agrees that, during the term hereof, it shall
not, except with the written consent of Tenant first had and obtained, use, sell or lease
any portion of the Property identified in the Declaration for or to any restaurant or other
business wherein the sale of chicken products comprises twenty-five (25%) percent or
more of its gross sales.
ARTICLE 34. SERVICE OF NOTICE:
Every notice, approval, consent or other communication authorized or
required by this Lease shall not be effective unless the same shall be in writing and sent
-17-
postage prepaid by United States registered or certified mail, return receipt requested
and (a) if intended for Landlord shall be addressed to:
6346 North Powderhorn Road
Mechanicsburg, PA 17050
with a copy to: Stephen C. Nudel, Esq.
219 Pine Street
Harrisburg, PA 17101
(which copy may be by facsimile to: (717)236-5080)
and (b) if intended for Tenant shall be addressed to:
Kazi Foods of New Jersey, Inc.
134 W. Chocolate Ave.
Hershey, PA 17033
Attn: Lee M. Dicely
with a copy to: W. Scott Staruch, Esq.
Laws, Staruch & Pisarcik
20 Erford Rd., Ste 305
Lemoyne, PA 17043
(which copy may be by facsimile to: (717)975-3871)
with a copy to: Tenant's Mortgagee who has
served notice of its existence to Landlord,
or to such other address as either party may designate by notice given from time to time
in accordance with this Article. Any notice given in accordance with the provisions of
this Article shall be deemed to have been given as of the date such notice shall have
been placed in the United States Postal Service. The rent payable by Tenant hereunder
shall be paid to Landlord at the same place where a notice to Landlord is herein
required to be directed.
ARTICLE 35. SUCCESSORS AND ASSIGNS:
The terms, conditions and covenants of this Lease shall be binding upon
and shall inure to the benefit of each of the parties hereto, their heirs, personal
representatives, successors or assigns and shall run with the land; and where more
than one party shall be Landlord under this Lease, the word "Landlord", whenever used
in this Lease, shall be deemed to include all Landlords, jointly and severally.
ARTICLE 36. RECORDING:
This Lease shall not be recorded. However, if either of the parties hereto
desires to record a statutory memorandum of this Lease, Landlord and Tenant agree to
execute and deliver to the other a Memorandum of this Lease containing only minimum
-18-
statutory requirements, which Memorandum of Lease may then be recorded in the
appropriate office of the County within which the Premises is located.
ARTICLE 37. BROKER'S COMMISSION:
Landlord and Tenant represent to one another that no other broker has
been engaged by either or is entitled to a commission in connection with the negotiation
of this Lease EXCEPT for William M. Gladstone of NAI-CIR, to whom Landlord has
agreed to pay a commission under separate agreement.
ARTICLE 38. AMENDMENTS:
No waivers, alterations or modifications of this Lease or any agreements
in connection therewith shall be valid, unless in writing duly executed by both Landlord
and Tenant herein.
ARTICLE 39. ESTOPPEL CERTIFICATE:
Either party to this Lease shall from time to time during the term of this
Lease, immediately upon the request of the other party, execute and deliver to the other
party a statement certifying that this Lease is in full force and effect, the date through
the rent and other charges hereunder have been paid and any other factual matters
reasonably requested by the other party.
ARTICLE 40. RELATIONSHIP OF PARTIES:
Nothing contained in this Lease shall he deemed or construed by the
parties or by any third person to create the relationship of principal and agent or of
partnership or of joint venture or of any association between Landlord and Tenant, and
neither the method of computation or rent nor any other provisions contained in this
Lease nor any acts of the parties shall be deemed to create any relationship between
Landlord and Tenant, other than the relationship of Landlord and Tenant.
ARTICLE 41. ENTIRE AGREEMENT:
This Lease supersedes any and all other agreements, either oral or in
writing, between the parties hereto with respect to the Premises and contains all of the
covenants, agreements and other obligations between the said parties in respect to said
Premises.
-19-
ARTICLE 42. TIME SHALL BE OF THE ESSENCE:
Time shall be of the essence with respect to all obligation of the parties
hereunder.
IN WITNESS WHEREOF the parties hereto have set their hands to duplicates
hereof, this !91 day of GCTe6l.?. , 2007
Si ned and acknowledged LANDLORD:
in he presence of. J-^
Tod G. Slhedlosky
p
Lisa T. Shedlosky
TENANT:
Kazi Foods of New Jersey, Inc.
do-t& aC? By:
Lee is
Kazi Foods - Shipp. Lease\KFC - Shedlosky Ground Lease 9-11-07.doc
-20-
J
UW Y4/ 1d1J8 14:54 7179750752 B GLADSTONE PAGE 02/05
LEASE ADDENDUM NO. 1
This Addendum No. 1 is made as of this 3rd day of September, 2008, by and
between Tod G. Shedlosky and Lisa T. Shedlosky ("Landlord") and Kazi Foods of
New Jersey, Inc. ("Tenant") and modifies that certain Ground Lease between the
parties dated October 19, 2007, for Premises constituting Lot 4 as shown on the "Land
Subdivision/Development for T/L Shedlosky" as recorded April 4, 2006, in Cumberland
County Plan Book 92, Page 46.
1. Notwithstanding Article 2 of the said Ground Lease, the initial twenty (20) year
term and the payment of rent shall commence the earlier of (i) the date Tenant_opens.
for business, or (ii) as of February 1, 2009, provided that Tenant shall, within forty-eight
(48) hours of full execution of this Addendum, pay Landlord Ten Thousand ($10,000.00)
Dollars advance and nonrefundable rent, constituting the monthly rent installment of
$6,250.00 due for February, 2009, and a $3,750.00 partial rent payment for the month
of March, 2009. The remainder of the March, 2009, monthly rent installment shall be
paid on or before March 1, 2009.
2. Except as expressly modified by this Addendum, all terms and provisions of
the said Ground Lease remain in full force and effect.
Signed with intent to be legally bound.
LANDL
Tod G.
TENANT:
Kazi Foods of New Jersey, Inc.
Y.
Name:
Lisa T. Shedlosky
177/ L4/ Lt]tJtl 14:b4 /179750752 B GLADSTONE PAGE 03/05
LEASE ADDENDUM NO.2
This Addendum No. 2 is made as of this PJ day of September, 2008, by and between Tod G.
Shedlosky and Lisa T. Shedlosky ("Landlord") and Kazi Foods of New Jersey, Inc.
('Tenant') and modifies that certain Ground Lease between the parties dated October 19, 2007,
for Premises constituting Lot 4 as shown on the "Land Subdivision/Development for TIL
Shedlosky" as recorded April 4, 2006, In Cumberland County Plan Book 92, Page 46, more
particularly described on Exhibit A attached hereto.
WHEREAS, Landlord and Tenant desire to incorporate the following terms into the body
of the Lease;
NOW, THEREFORE, in consideration of the covenants herein and therein, the parties
hereto agree as follows:
1. If the franchise agreement ("Franchise Agreement") between Taco Bell Corp., a
California corporation ("Taco Bell"), as franchisor, and Tenant, as franchisee, is terminated prior
to expiration of the Lease, Taco Bell, or any affiliate thereof, shall have the right, but not the
obligation, to assume those rights and obligations of Tenant under the Lease coming due on or
after the date Tenant vacates the Premises, including taking possession of the Premises, all
fixtures. and leasehold improvements. Taco Bell, or any affiliate thereof, may exercise such
right at any time after the termination of the Franchise Agreement by written notice to Landlord
and Tenant. Within thirty (30) days after receipt of such notice, Tenant shall vacate the
Premises and turn possession of same over to Taco Bell or its affiliate, as the case may be.
The assumption of Tenant's obligations under the Lease by Taco Bell or arraffiliate thareof-shall
in no way relieve Tenant from any obligations, expenses, charges or liabilities of Tenant to Taco
Bell under the terms of the Franchise Agreement or from any obligations, expenses, charges or
liabilities of Tenant to Landlord under the Lease. For purposes of this Addendum, "affiliate"
shall mean any entity controlling, controlled by or under common control with Taco Bell. Taco
Bell must take possession, if at all, within thirty (30) days after Landlord defaults Tenant under
the Lease.
2. Landlord hereby grants Tenant the right to assign the Lease or sublet the Premises to
Taco Bell, an affiliate of Taco Bell or another franchisee of Taco Bell or any affiliate thereof after
obtaining Landlord's prior written consent which consent shall not be unreasonably withheld.
Upon assignment the Right of First Refusal and Option to Purchase shall be null and void.
3. Landlord shall give Taco Bell a copy of any and all notices of default given to Tenant, as
required to be given by Landlord to Tenant under the terms of the Lease, at the same time such
notice is given to Tenant. During the fifteen (15) days after Tenant's right to cure expires, Taco
Bell or any affiliate thereof shall have the right but not the obligation, to cure any such default,
4. Upon the expiration or earlier termination of the Lease or Franchise Agreement-for any
reason, Tenant shall, upon written demand by Taco Bell, remove all Taco Bell trademarks from
all buildings, signs, fixtures and furnishings, and alter to and paint all buildings and other
improvements maintained pursuant to the Lease a design and color which is basically different
from Taco Bell's authorized building design and painting schedule. If Tenant shall fail to make
or cause to be made any such removal, alteration or repainting within thirty (30) days after
written notice. Taco Bell or any affiliate thereof shall have the right to enter upon the Premises,
without being deemed guilty of trespass or any other tort, and make or cause to be made such
removal, alterations and repainting at the reasonable expense of Tenant, which expense Tenant
-1-
Franchise Addendum-Jan 2008
YJ7/ L4/ L?7k?ti 14:54 /179750752 B GLADSTONE PAGE 04/05
shall pay Taco Bell or its designated affiliate on demand. All damage caused thereby shall be
repaired by Taco Bell.
5. Landlord and Tenant agree to record a Memorandum of Lease containing substantially
the following language:
"Landlord and Tenant have granted Taco Bell Corp., a California corporation, and
its affiliates certain conditional rights, including possession, in and to the
Premises...
6, All notices which Landlord may serve on Taco Bell hereunder shall be made in
accordance with the Lease to:
Taco Bell Corp.
17901 Von Karman
Irvine, CA 92614
Attn: Vice President - General Counsel
7. Notwithstanding anything to the contrary elsewhere in the Lease or any addendum or
amendment thereto, Landlord and Tenant agree that the terms and provisions set forth in this
Addendum shall control and shall not be superseded, terminated or modified without the prior
written consent of Taco Bell, a third party beneficiary to the Lease and this Addendum.
IN WITNESS WHEREOF, the parties have executed this Addendum as of the date
herein above set forth.
LANDLORD:
-2-
TENANT:
Kazi Foods of New Jersey, Inc.
By.
Name: C,.L
Title: F ' l
Franchise Addendum--Jan 2006
--' l
Lisa T. Shedlosky
U7/ Z4I letMb 14; 04 11 (y/5b/5Y B GLADSTONE PAGE 05/05
EXHIBIT "A'
CESCRIZTION OF THE PR:kI15ES
LEGAL DESCRIPTION
TIL SHEDLOSKY
LOT 4
AU. of ttw Wmklg desuibed too;, otits:e ryfng a rd bsiig vlxdo along dt c ua ti -ly alrr: of Walnut
Eodorn Roa,i (SR 0170), ;n laftiprcrsburg Tm totp, Cwhl:sttand Ccu*, Com ncrwcatth of
Penn /lvanis, more pwflculadr bounded crud desribec as fa owvv
BEGINNING r i Mag Nal aii a n-Ir on rumor At e,rf : as vtwrxr, o-r tho "Land Sutx0vWw
Ccveicprrimm b: T1 ShadlorAy ! _.-I N r's. '-f:' ;m rra: nrIM. in runt?r+rtand 07un7't Plan Roc„ e2, Pogo
43.
THENCE ak va kind no%%or lunrxrrly o. t%rtndun Indushml Dmimpment Aullichty K-A't;3 dQor;»s 32
rltinufos Ca rwolwls W.-M. a rAatxtre of 4"0197 febt * 9 corerve imurrmart
THENCE along Lot 5 of the bekn MMI M04 plan N•.rrt.4 U deo?rs 03 t?1 ntiDas as slactattds GaaL a
4191sttur of 259.47 tee; to a point;
THENCE alprf Mnd M. v or folmery.Of RrS NC. 31 - Sh arnburg Lt.C Saun 46 9pgtvee rrmvttrs Og
SP.",0Nn East o disono, of ea.6a' at lo a Drill Hcla:
I HENCE aklrtg land m%, sr forZtaly - Ri'S Ne ?' • Rr:It?burg LLC South 93 decrccs 52 tr'nuta_a vU
secx rx East, a dist3nm of 1 jUb tat 0 0 ,?toll Mole.
THDICE along land new or W. ra ly cY Rn No, 31 - S.hippen%tl rg LLt on a ctuve to ttt left It<vlnq hp,,
UVI/uig t hattrxstr*k= sn xe IF'VIh o" i7.LCa102r, a fW;A cf 112.50 fee:, rr e1701`1 tcvring Cf Z%LM 10
dogreas E8 rrllrutpts bt a r, •ds Et sl. vivi u zhow•kargill of 77.23 fry, Ina CNN Hole,
THENCE-slang land now •x •tmneryor nt•C No. 31 • Gmp=r-s" L.C Strwi 18 dsgrarrs a9 rrllnutcs ?>
..aconda emit a dkstanoo of :29.68 sawt to a WI I-a;e,
THENCEdung Lot 2 of 1tir br:flAre rrwMonod p'Fn Gout. 71 drgMp%54 •niruttx 30 accrA,& West, a
doe--ncv 0 70.43 'act to a Dr;l -Iola;
THENCEnaleng Lote of dte term men ietaee par, on aww lathe rigtt Yov,ng the Aolovving
reAVV4Mde lIM an an_ 1vAgth 0182.21 feet, a rzfw s of 312 50 taeL A there bwhg of Scutt 70 cegmrA
23 tioluto 4S Wcwds ViFid. a,4 a rhord k h'plt rf !M 97 =ecL to a Dill Holt;
THENCE aCng Ur, 2 at ttte before tr+eraliofted plan South 06 dnpioote 5R m mates Fib wcancu'Nest, a
d'.3tL•111C9 a Ee.08 led to a filag N8+ Mtlch Ill that POINT OF BEGINNING
CONTAINM a total wee eg_M Sai;we burl or 2.1:911.: ?., ms as dosvlM a4 I,ot Nm a ca the
2nd %tdhftbn? Dft-'.apntpnllbr-k Shedlost.e tae tec: tded H Cumbr99a-d County Plan So:* 92.
Page 40,
BEING part of t1e reed crAte that Mickey IV. N7o, a.c.a-mirkey i lade Nye 9A a. IN. Mickey Nye, ax a
Wads mcs" Nyr, J. Heratd Kahl, on. &La J. Harold Kvdman wv Franz C. (lye as Administrnn
c T A., v m. a, Cc-t xr-c0om of the Estate of Frank E Fie 'Sr, J-. ty iced dated N'nvember A. 281E 9nd
I73zMed it Cumtwlnnd l.:ount/ axed Voolt 2/1, Vnao A224 corvtryarl b Tad G. Shedloskv C-.d Lisa T.
Shr.:loo". Gr0?ters h00,.
PIUBJLCT is al t;rrbl6 noEr s ee>:rrprt%; rlah+E O' .py9 ar.J suppormg t'rac't: ionls as f o#i crt ±o
'tared 2vuNNlolon! L`oi-Altrwit Icx 77L 3- rLdknkr : Lot. '40R 1.6" a5 M-corded 1 t:l1mG]rhaad CDtrfty
Pt.-n 13cok 92, Page: 4'3
-3-
Franchise Addendum-Jan 2008
EXHIBIT C
4
07/ L4/ Zrit3 S 14: 54 (1 /y/5b/51 B GLADSTONE PAGE 02/05
LEASE ADDENDUM NO. 1
This Addendum No. 1 is made as of this 3rd day of September, 2008, by and
between Tod G. Shedlosky and Lisa T. Shedlosky ("Landlord") and Kazi Foods of
New Jersey, Inc. ("Tenant") and modifies that certain Ground Lease between the
parties dated October 19, 2007, for Premises constituting Lot 4 as shown on the "Land
Subdivision/Development for T/L Shedlosky" as recorded April 4, 2006, in Cumberiand
County Plan Book 92, Page 46.
1. Notwithstanding Article 2 of the said Ground Lease, the initial twenty (20) year
terns and the payment of rent shall commence the earlier of (i) the date. Tenant_ opens.
for business, or (ii) as of February 1, 2009, provided that Tenant shall, within forty-eight
(48) hours of full execution of this Addendum, pay Landlord Ten Thousand ($10,000.00)
Dollars advance and nonrefundable rent, constituting the monthly rent installment of
$6,250.00 due for February, 2009, and a $3,750.00 partial rent payment for the month
of March, 2009. The remainder of the March, 2009, monthly rent installment shall be
paid on or before March 1, 2009.
2. Except as expressly modified by this Addendum, all terms and provisions of
the said Ground Lease remain in full force and effect.
Signed with intent to be legally bound.
TENANT:
Kazi Foods of New .Jersey, Inc.
gy:
Name:
Title:
Lisa T. Shedlosky
EXHIBIT D
#730327-v l 02656-0001
Jason A. Copley
Attorney At Law
May 8, 2009
Tod G. Shedlosky
Lisa T. Shedlosky
6346 N. Powderhorn Road
Mechanicsburg, PA 17055
Re: NIA/CIR v. Shedlosky
Dear Mr. and Mrs. Shedlosky:
240 North Third Steet, 7th Floor
Harrisburg, PA 17101
T: 717.234.5530 F: 717.213.0731
icopley@cohenseglias.com
www.cohenseglias.com
This office has been retained by NAUCIR with respect to the funds that are due and
owing under the attached "One Party Listing Contract - Leases" executed by both parties in
April 2007 (the "Listing Contract").
In connection with the Listing Contract, NAUCIR hereby demands payment of the stated
"commission of Four (4%) percent of the net lease, due and payable at commencement of the
lease and payment of the first month's rent with Kazi Foods of New Jersey, Inc./KFC and/or
other Yum Brand Restaurants." The amount due and owing since September 2008, is
$69,615.00
Please contact me immediately to make payment arrangements. If we do not hear from
you by Wednesday, May 13, 2009, we will file an action against you both immediately to collect
the amount due and owing together with interest.
If you have any questions, please do not hesitate to contact me.
Very truly yours,
Jason. Cop ey
/aaz
VIA CERTIFIED MAIL & 1St CLASS MAIL
cc: William Gladstone
Robin Zellers
Philadelphia i Pittsburgh I Wilmington I Harrisburg
New Jersey I West Virginia
s
VERIFICATION
I, Robin Zellers, COO, of Commercial Industrial Realty, Inc. d/b/a NAI/CIR, have read
the foregoing Complaint and hereby affirm and verify that it is true and correct to the best of my
knowledge, information and belief. I verify that all of the statements made in the foregoing
Complaint are true and correct and that false statements made therein may subject me to the
penalties of 18 Pa.C.S.A. Section 4904, relating to unswom falsification to authorities.
Date: ?0
Robin Zellers
t
CERTIFICATE OF SERVICE
I hereby certify that the foregoing Amended Complaint was sent by first class mail, postage
prepaid this day to the following:
Bret Keisling, Esquire
Law Office of Stephen C. Nudel, P.C.
219 Pine Street
Harrisburg, PA 17101
Respectfully submitted,
Cohen Seglias Pallas
Greenhall & Furman, P.C.
Date: By: -
Alison A. ortman, Lega sistant
240 North Third Street, loor
Harrisburg, PA 17101
(717) 234-5530
Attorneys for Plaintiff
FILED i(j"E
OF THE Prt^T?rf-t ,". Yl .Y
2009 JUN 25 AM 11: G 0;
'NTY
PENPISYOVANIA
CUMBERLAND COUNTY
OFFICE OF THE PROTHONOTARY
ESCROW ACCOUNT
CUMBERLAND COUNTY COURT HOUSE
1873
CARLISLE, PA 17013
'' I `/ n 100 60-1503/313
PAY DATE
TO THE /// """ ??T
ORDER OF__ Mi chaPl T ?nl rmnn 14.00
P
CUM/ERLAND CO.
PROTHONOTA.AY 14dof s00ots a
DOLLARS
O - BANK
09-3189 - Carmercial Realty vs Shedlosky - Refund Default---- ---
_-_-.-------------
II'001873ol 1:03 L3 L5036i: ---
108 11117
4
C-)
c= -n
r Fri
ri
11403707072009 Cumberland County Prothonotary's Office
PYS405 Manual Release Check Register q
7/07%2009
Distribution Case No Accountin Escrow Tran Date
g Amount Date Release
___
3963 SOLOMON MICHAEL L ------------
Check Date: 07/07/2009 Check No.: 1873
OVERPYMNT/RFND 2009- 03189 REFUND - ADJ.
14.00 7/07/2009
Payee total: 14.00
--------------------------
Grand total: 14.00
RECEIPT FOR REFUND
Cumberland County Prothonotary's Office
Carlisle, Pa 17013
COMMERCIAL/INDUSTRIAL REALTY
1015 MUMMA ROAD 2ND FLOOR
WORMLEYSBURG, PA 17043
Case Number 2009-03189
Remarks REFUND SHOULD HAVE BEEN TAKEN
Receipt Date 7/07/2009
Receipt No. 227671
-------------------- Distribution Of Adjustment
---------------
------------
Transaction Description Beg. Bal.
Disbursed This Adj
COMPLAINT 55.00 55.00
TAX ON CMPLT .50
SETTLEMENT .50
AUTOMATION 8.00 8.00
FEE 5.00 5.00
JCP
JDMT 10.00 10.00
OVERPYMNT/RFND 14.00 14.00 14.00-
14.00
92.50 92.50
Cohen Seglias Pallas Greenhall & Furman, PC
Jason A. Copley, PA I.D. #72774
jcopley@cohenseglias.com
Michael L. Solomon, PA I.D. # 36031
msolomon@cohenseglias.com
240 N. Third Street, 7 h Floor
Harrisburg, PA 17101
Attorneys for Plaintiff
COMMERCIAL/INDUSTRIAL REALTY IN THE COURT OF COMMON PLEAS OF
COMPANY d/b/a NAI/CIR CUMBERLAND COUNTY, PENNSYLVANIA
1015 Mumma Road, 2nd Floor
Wormleysburg, PA 17043
Plaintiff
V.
TOD G. SHEDLOSKY and
LISA T. SHEDLOSKY,
6346 N. Powderhorn Road
Mechanicsburg, PA 17055
Defendants
To the Prothonotary:
: NO.: 09-3189 Civil
PRAECIPE
Please strike the within Default Judgment requested by this office on June 22, 2009,
without prejudice.
Respectfully submitted,
Cohen Seglias Pallas
Greenhall & Furman, PC
Date: "{ u ? B
Jason . Copley, PA ID # 2774
Michael L. Solomon, PA ID # 36031
240 North Third Street, 7`h Floor
Harrisburg, PA 17101
(717) 234-5530
Attorneys for Plaintiff
CERTIFIATE OF SERVICE
I hereby certify that the foregoing Praecipe was sent by first class mail, postage
prepaid this day to the following:
Bret Keisling
Law Office of Stephen C. Nude[, PC
219 Pine Street
Harrisburg, PA 17101
Date:
Respectfully submitted,
Cohen Seglias Pallas
Greenhall & Furman, PC
By:' -
Alison A. Zortman, al Assistant
240 North Third Str , 7th Floor
Harrisburg, PA 17101
(717) 234-5530
Attorneys for Plaintiff
#729122-v l 02656-0001
P, Li { r r
2 'j
Michael L. Solomon
Attorney At Law
COHEN S1G1AS PALLAS GRI ENHALL&F AN MC
240 North Third Steet, 7th Floor
Harrisburg, PA 17101
T. 717.234.5530 F: 717.307.3537
msolomon@cohenseglias.com
June 23, 2009 www.cohenseglias.com
Cumberland County Prothonotary
Cumberland County Courthouse
One Courthouse Square
Carlisle, PA 17031
Re: Commercial/Industrial Realty Company v. Shedlosky
No.: 09-3189
Our File No.: 02656-0001
Dear Prothonotary:
As a result of a built-in, one-day lag in your docketing of filed pleadings, our office
entered a Default Judgment in the above-captioned case on Monday, June 22, 2009. Unknown to
your office and to us at the time, your office had received a timely filed response to our
Complaint on Friday, June 19, 2009. I have worked this out with opposing counsel, so that the
enclosed Praecipe will be filed to strike the judgment. Please enter our Praecipe and return time-
stamped copies to me in the enclosed envelope.
At this time, however, I make a formal request to you to refund the $14.00 fee imposed to
file our original Praecipe. I do not believe that it is fair to charge a party when every prudent
measure was taken to determine if the filing was timely and appropriately placed in your hands.
In this situation, we checked out computer and physically arrived in your office to conduct a
further inquiry as to whether there had been a response filed. Lastly, at the time that we filed our
Praecipe to Enter Judgment and because of the lag I mentioned above, it was impossible to
determine that the opposing party had filed its response. Upon discovering later in the day on
June 22, 2009 that a response was filed, we proceeded with the enclosed.
We look forward to your reply.
Sincerely yours,
Cohen Seglias Pallas
Greenhalll & Fu an, PC
I> -,
Michael L. Solomon
/aaz
Enclosure
Philadelphia I Pittsburgh I Wilmington I Harrisburg
#729182-v1 02656-0001 New Jersey I West Virginia
Cohen Seglias Pallas Greenhall & Furman, PC
Jason A. Copley, PA I.D. #72774
jcopley@cohenseglias.com
Michael L. Solomon, PA I.D. # 36031
msolomon@cohenseglias.com
240 N. Third Screet, 7`h Floor
Harrisburg, PA 17101
Attorneys for Plaintiff
COMMERCIAL/INDUSTRIAL REALTY IN THE COURT OF COMMON PLEAS OF
COMPANY d/b/a NAI/CIR CUMBERLAND COUNTY, PENNSYLVANIA
1015 Mumma Road, 2na Floor
Wormleysburg, PA 17043
Plaintiff
V. : NO.: 09-3189 Civil
TOD G. SHEDLOSKY and
LISA T. SHEDLOSKY,
6346 N. Powderhorn Road
Mechanicsburg, PA 17055
Defendants
PRAECIPE
To the Prothonotary:
Please strike the within Default Judgment requested by this office on June 22, 2009,
without prejudice.
Respectfully submitted,
Cohen Seglias Pallas
Greenhall & Furman, PC
Date:
BY:
Jason )6. Copley, PA I # 72774
Michael L. Solomon, PA ID # 36031
240 North Third Street, 7`h Floor
Harrisburg, PA 17101
(717) 234-5530
Attorneys for Plaintiff
CERTIFIATE OF SERVICE
I hereby certify that the foregoing Praecipe was sent by first class mail, postage
prepaid this day to the following:
Bret Keisling
Law Office of Stephen C. Nudel, PC
219 Pine Street
Harrisburg, PA 17101
Respectfully submitted,
Cohen Seglias Pallas
Greenhall & Furman, PC
Date:
-?
t By. - ?.-
Alison A. Zortman, Leg ssistant
240 North Third Street, Floor
Harrisburg, PA 17101
(717) 234-5530
Attorneys for Plaintiff
#729122-v1 02656-0001
~1~-
.. -
TO THE
Please
PRAECIPE FOR LISTING CASE FOR TRIAL
(Must be typewritten and submitted in triplicate)
~TARY OF CUMBERLAND COUNTY
the following case:
XQ for JURY trial at the next term of civil court.
^ for trial without a jury.
nJ
O
l
!?ri Cw'
= ~ T4
~. r.- .. r
~;~
'
~- rv 1.
~<
c-
CAPTION OF CASE
(entire caption must a stated in full)
Commercial/Indus rial
Realty Company b/a
NAI/CIR
vs.
Tod G. Shedlosky
Lisa T. Shedlosky
vs.
Indicate the attorney
Jason A. Copley
(Plaintiff)
and
(Defendant)
(check -one)
X^ Civil Action -Law
^ Appeal from arbitration
(other)
8/31 /10
The trial list will be called on
and
Trials commence on 9/20/10
Pretrials will be held on 9/8110
(Briefs are due 5 days before pretrials
No. 09-3189 ~ Civil
will try case for the party who files this praecipe:
Term
Indicate trial course for other parties if known:
Stephen C. Nudel a d Joseph A. Ricci
This case is ready fo~ trial.
Signed:
Print N
son A. Copley
Plaintiff
Attorney for:
~c'15. ro P p ATT'~I
C~ N~51
~" a~ s4~
CERTIFICATE OF SERVICE
I hereby certify
this day to the
the foregoing Praecipe was sent by first class mail, postage prepaid
Joseph A. Ricci, Esquire
Law Office of Stephen C. Nudel, P.C.
219 Pine Street
Harrisburg, PA 17101
Attorneys for Defendants
Respectfully submitted,
Cohen Seglias Pallas
Greenhall & Furman, P.C.
Date: ~ ~~~ 1 ~o
V~
By:
Alis A. Zortman, Legal As tant
240 North Third Street, 7~' Fl or
Harrisburg, PA 17101
(717) 234-5530
Attorneys for Plaintiff
#969893-v1 02656-0001
P O?HbNOF TI&E PROTHONOTARY
2010 DEC -3 AM 11:23
CUMBERLAND COUNTY
Cohen Seglias Pallas Greenhall & Furman, PC PENNSYLVANIA
Jason A. Copley, PA I.D. #72774
jcopley@cohenseglias.com
Michael L. Solomon, PA I.D. # 36031
msolomon@cohenseglias.com
240 N. Third Street, 7t' Floor
Harrisburg, PA 17101
Attorneys for Plaintiff
COMMERCIAL/INDUSTRIAL REALTY : IN THE COURT OF COMMON PLEAS OF
COMPANY d/b/a NAI/CIR CUMBERLAND COUNTY, PENNSYLVANIA
1015 Mumma Road, 2°d Floor
Wormleysburg, PA 17043
Plaintiff
V.
TOD G. SHEDLOSKY and
LISA T. SHEDLOSKY,
6346 N. Powderhorn Road
Mechanicsburg, PA 17055
Defendants
To the Prothonotary:
NO.: 09-3189 Civil
PRAECIPE
Please mark the docket in this case settled, discontinued, and ended with prejudice.
Respectfully submitted,
Cohen Seglias Pallas
Greenhall & Furman, PC
Date: 1 212110 By: V ?X
Jason k Copley, PA I.D. #72774
Michael L. Solomon, PA I.D. #36031
240 North Third Street, 7`" Floor
Harrisburg, PA 17101
(717) 234-5530
Attorneys for Plaintiff
#1149439-v1 02656-0001