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Home My WebLink About09-4977REAGER & ADLER, P.C. BY:JOHN H. PIETRZAK, ESQUIRE Attorney I.D. No. 79538 Email: JJpietrzak(&ReagerAdlerPC.com BY: THOMAS O. WILLIAMS, ESQUIRE Attorney I.D. No. 67987 Email: Twilliams(&Reag_erAdlerPC.com 2331 Market Street Camp Hill, PA 17011 Telephone: (717) 763-1383 Facsimile: (717) 730-7366 Attorneys for Brandy Investors, LP BRANDY INVESTORS, LP, IN THE COURT OF COMMON PLEAS, Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA V. : CIVIL ACTION CALABRESE & SONS, INC. and, : NO. 09 - y q77 (2i vi L Ie ft JOSEPH CALABRESE, Defendants : CONFESSION OF JUDGMENT PRAECIPE FOR ENTRY OF JUDGMENT BY CONFESSION TO THE PROTHONOTARY: Kindly enter judgment by confession in the above-captioned matter against the Defendants, both jointly and severally, and assess damages in the amount of $74,955.14, plus interest from August 6, 2007, as follows: Principal: Late fees: Interest: Through 7/20/09; interest continues on all amounts at the rate of I% per month: Collection fees: Total: Date: July 22, 2009 $106,140.53 $ 2,452.34 $ 5,884.28 $ 11,447.71 $125,924.86 Respectfully submitted, REA R & ADLER, P -4 llx?l?l Jo H. Pietrzak, Esquire ttorney for Defendants F(LE[X,),- GE f ?..-W VIE MI-10i "NOTARY 2009 JUL 22 PM 3: 11 cu , r J uN tviBuN PENNiSAVAINIA REAGER & ADLER, P.C. BY:JOHN H. PIETRZAK, ESQUIRE Attorney I.D. No. 79538 Email: Jpietrzak(d,)ReagerAdlerPC.com BY: THOMAS O. WILLIAMS, ESQUIRE Attorney I.D. No. 67987 Email: Twilliams@Rea eg rAdlerPC.com 2331 Market Street Camp Hill, PA 17011 Telephone: (717) 763-1383 Facsimile: (717) 730-7366 Attorneys for Brandy Investors, LP BRANDY INVESTORS, LP, IN THE COURT OF COMMON PLEAS, Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA V. CIVIL ACTION CALABRESE & SONS, INC. and, : NO. Oq - 149'7? Cw'lTprM JOSEPH CALABRESE, Defendants : CONFESSION OF JUDGMENT CONFESSION OF JUDGMENT Pursuant to the authority in the Warrant of Attorney, the original or a copy of which is attached to the Complaint filed in this action, I appear for the Defendants and confess judgment in favor of the Plaintiff and against Defendants as follows: Principal: Late fees: Interest: Through 7/20/09; interest continues on all amounts at the rate of I% per month: Collection fees: Total: $106,140.53 $ 2,452.34 $ 5,884.28 $ 11,447.71 $125,924.86 Respectfully submitted, REAGER & ADLER, P.C. Date: July 22, 2009 0J,, Y A Z4r J H. Pietrzak, Esquire FILE D- i="iICE OF THE P} OTHI I IOTARY 2009 JUL 22 PM 3: 11 GjV,8 t.. ;w,tJJNTY PENNSYL'VA'',? A REAGER & ADLER, P.C. BY:JOHN H. PIETRZAK, ESQUIRE Attorney I.D. No. 79538 Email: JpietrzakaRea eg, rAdlerPC.com BY: THOMAS O. WILLIAMS, ESQUIRE Attorney I.D. No. 67987 Email: TwilliamsaReagerAdlerPC.com 2331 Market Street Camp Hill, PA 17011 Telephone: (717) 763-1383 Facsimile: (717) 730-7366 Attorneys for Brandy Investors, LP BRANDY INVESTORS, LP, IN THE COURT OF COMMON PLEAS, Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA V. CIVIL ACTION CALABRESE & SONS, INC. and, : NO. OR- 4917 JOSEPH CALABRESE, Defendants : CONFESSION OF JUDGMENT COMPLAINT IN CONFESSION OF JUDGMENT 1. Plaintiff, Brandy Investors, LP (hereinafter "Brandy") is a Pennsylvania limited partnership with a mailing address of c/o RSR Realtors, 3 Lemoyne Drive, Suite 100, Lemoyne, Pennsylvania 17043. 2. Defendant Calabrese & Sons, Inc. (hereinafter "C&S") is a Pennsylvania corporation, with a mailing address of 406 Brandy Lane, Mechanicsburg, Pennsylvania, 17055. b 3. Defendant Joseph Calabrese is an adult individual, with an address of 25 Devonshire Square, Mechanicsburg, PA 17055. 4. This is an action to confess judgment for damages arising out of C&S's default of a commercial lease entered into between Brandy and C&S on June 9, 2006. 5. Judgment is not being entered by confession of judgment against a natural person in connection with a consumer credit transaction. 6. On June 9, 2006, Brandy and C&S entered into a commercial lease agreement (hereinafter the "Lease") under which Brandy demised and let certain office and warehouse space located at 406 Brandy Lane, Mechanicsburg, Pennsylvania 17055 to C&S for a period of ten (10) years. 7. Joseph Calabrese (hereinafter "Calabrese") signed executed a Personal Guaranty of Lease, as an individual guarantor, obligating himself individually to all of the duties and obligations of C&S under the Lease. 8. C&S has defaulted under the terms of the Lease by failing to pay the rent due and owing for February 2009, in the amount of $24,523.34. The amount in arrears for February 2009 rent, including the 5% late penalty provided for in the Lease of $1,226.17, and 1% interest per month through July 20, 2009 of $1,387.37 is $27,136.88, plus $8.06 per day in interest. 9. C&S has further defaulted under the terms of the Lease by failing to pay the rent due and owing for June 2009, in the amount of $24,523.34. The amount in arrears for June 2009 rent, including the 5% late penalty provided for in the Lease of $1,226.17, and 1% interest per month through July 20, 2009 of $406.43 is $26,155.94, plus $8.06 per day in interest. 2 10. C&S has further defaulted under the terms of the Lease by failing to pay 2008 school taxes in the amount of $33,789.53. Brandy provided notice to C&S to pay the taxes as required by the Lease. When C&S did not take action to pay the taxes in the discount period, and based upon C&S' history of failing to pay taxes as required by the Lease, Brandy mitigated its damages by paying the 2008 school taxes on October 30, 2008. The amount C&S currently owes to Brandy for the 2008 school taxes, including 1% interest per month through July 20, 2009 in the amount of $2,925.12 is $36,714.65, plus $11.10 per day in interest. 11. C&S has further defaulted under the terms of the Lease by failing to pay 2009 county & boro taxes in the amount of $13,455.32. Brandy provided notice to C&S to pay the taxes as required by the Lease. When C&S did not take action to pay the taxes in the discount period, and based upon C&S' history of failing to pay taxes as required by the Lease, Brandy mitigated its damages by paying the 2009 county & boro taxes on March 31, 2009. The amount C&S currently owes to Brandy for the 2009 county & boro taxes, including 1% interest per month through July 20, 2009 in the amount of $492.05 is $13,947.37, plus $4.42 per day in interest. 12. C&S has further defaulted under the terms of the Lease by failing to insurance due to Erie Insurance for 2008 in the amount of $4,575.00, as required by the terms of the Lease. Brandy cured this default by paying the insurance premium on August 4, 2008. The amount C&S currently owes to Brandy for the 2008 Erie insurance premium, including 1% interest per month through July 20, 2009 in the amount of $533.23 is $5,108.23, plus $1.50 per day in interest. 13. C&S has further defaulted under the terms of the Lease by failing to insurance due to Erie Insurance for 2009 in the amount of $5,274.00, as required by the terms of the Lease. Brandy cured this default by paying the insurance premium on April 27, 2009. The amount C&S currently owes to Brandy for the 2009 Erie insurance premium, including I% interest per month through July 20, 2009 in the amount of $140.08 is $5,414.08, plus $1.73 per day in interest. 14. A true and correct copy of the Lease under which Plaintiff has confessed judgment is attached hereto and incorporated herein, as Exhibit "A". 15. The Lease under which judgment is being confessed has not been assigned. 16. Brandy sent a Notice of Default letter dated July 2, 2009 to C&S by certified mail, return receipt requested and by U.S. Mail. A true and correct copy of the July 2, 2009 Notice of Default letter, along with the signed return receipt is attached hereto as Exhibit "B". 17. C&S has not responded to the Notice of Default letter and the amounts in default listed above remain outstanding. 18. The principal balance due under the Lease is $106,140.53, plus $2,452.34 in late fees and $5,884.28 in interest at the rate of 1% per month through July 20, 2009, plus collection and attorney's fees of 10% as authorized by the Lease, in the amount of $11,447.71, for a total of $125,924.86, plus interest which continues to accrue in the amount of $34.89 per day. 19. Judgment has not been entered against C&S or Calabrese in any jurisdiction for the unpaid sum of $125,924.86 of the debt here demanded. 20. A confession of judgment for monetary damages was previously taken under this Lease for previous defaults by C&S, under Cumberland County Docket No. 07-4722. A confession of judgment in ejectment for possession of the leased property was previously taken under this Lease for previous defaults by C&S, under Cumberland County Docket No. 07-5152. C&S paid the judgment entered under Docket No. 07-4711 and the judgments entered under Docket numbers 07-4722 and 07-5152 were therefore satisfied. None of the defaults included in the confessed judgments entered in docket no. 07-4722 or 07-5152 are included in this Complaint for Confession of Judgment. 21. A confession of judgment for monetary damages was previously taken under this Lease for previous defaults by C&S, under Cumberland County Docket No. 08-2519. A confession of judgment in ejectment for possession of the leased property was previously taken under this Lease for previous defaults by C&S, under Cumberland County Docket No. 08-2522. Brandy withdrew these confessions of judgment on January 29, 2009. None of the defaults included in the confessed judgments entered in docket no. 08-2519 or 08-2522 are included in this Complaint for Confession of Judgment. 22. The terms of the Lease permit Brandy to confess judgment on more than one occasion. 23. A confession of judgment in ejectment for C&S's current defaults under the Lease has been entered at Cumberland County Docket No. , on July 22, 2009. 24. Judgment is demanded as authorized by the Warrant of Attorney contained in the Lease attached as Exhibit "A". 25. The Warrant appearing in the attached Lease is less than twenty (20) years old. WHEREFORE, Plaintiff, Brandy Investors, LP, demands judgment against Defendants, Calabrese & Sons, Inc. and Joseph Calabrese, in the sum of $125,924.86, plus interest which continues to accrue in the amount of $34.89 per day from July 21, 2009 forward, as authorized by the Warrant appearing in the attached Lease, together with interest from the date of judgment and costs. Respectfully submitted, REAGER & ADLER, P.C. Date: July 22, 2009 I)la- 1--7 oz? I- t ? - M I / J Loll H Pietrzak, Esq ey I.D. No. 7s9 8 Yor Thomas O. Williams, Esquire Attorney I.D. No. 67987 Attorneys for Plaintiff, Brandy Investors, LP \l ? (r ^ ". •shc\dlb'Wsr\biandy\gtabrese.lease June 9, 2006 COMMERCIAL LEASE AGREEMENT THIS LEASE AGREEMENT, made as of the 9th day of June, 2006, by and between BRANDY INVESTORS, L.P.,. a Pennsylvania limited partnership, with a mailing address of c/o RSR Realtors, 3 Lemoyne Drive, Suite 100, Lemoyne, PA 17043, hereinafter referred to as "Landlord", and CALABRESE &SONS, INC., a Pennsylvania business corporation, with a mailing address of P.O. Box 1667, Mechanicsburg, PA 17055, hereinafter referred to as "Tenant". WHEREAS,. Landlord desires to lease to Tenant the premises comprised of an office and warehouse located at 4b6 Brandy Lane, Borough of Mechanicsburg, Cumberland County, Pennsylvania (the "Building"), and the Tenant desires to lease the same upon the terms and conditions and for the good and valuable considerations described in this lease agreement, hereinafter sometimes referred to as the "Lease"; NOW THEREFORE, the parties hereto agree as follows: l.. LEASED PREMISES. Landlord leases, demises and lets to the Tenant, office and warehouse space identified as the Building, and hereinafter sometimes referred to as the "Premises", and Tenant hereby leases from Landlord the entire Premises known as 406 Brandy Lane, Mechanicsburg, Cumberland County, Pennsylvania 17055; consisting of an approximate 80`,000 square foot Building, together with all easement rights and appurtenances applicable thereto. 2. TERM. The term of this Lease is for a period of ten (10) years, commencing on the 9th day of June, 2006 (the commencement date), being the date of the real estate- settlement of the sale of the Premises from Tenant (Seller) to Landlord (Buyer), and ending at midnight on the 30th day of June, 2016. Landlord and Tenant acknowledge that Tenant is currently in possession of and occupies the Premises as of the commencement date. Provided this Lease is not in default, Tenant is granted an option to renew this Lease as follows: (1) at the option of Tenant, the term of the Lease may be extended for two (2) renewal periods of five (5) years each by written notice to the Landlord at least 180 days prior to the expiration of the term or any renewal term thereof, as the case may be; (2) upon any valid exercise of any such option to renew, terms of the Lease shall remain in full force and effect except that the minimum annual rent for each renewal period shall be adjusted as set forth in Paragraph 3 below. 3. RENTAL. Tenant shall pay to Landlord a total rent of $280,100.00 during the first (I"..) year. term of the Lease, payable in monthly installments of $23,341.67. In addition, Tenant shall pay sucl.Additional Rent, as set forth herein. The monthly rental shall be payable in advance of the first day of each month beginning as of the commencement date set forth in Para?:raph 2 above, at such address designated by Landlord in Paragraph ,? • shcldlblrsrlbrandylcalabrese.lease June,9, 2006 20. (entitled Notices) herein below, or. such other places as the Landlord may. designate, subject to the following: at the time of settlement on -the sale of the real estate from Tenant (Seller) to Landlord (Buyer), Tenant will provide Landlord with a credit of three (3) months base rent in the amount of $70,025.00 to be. held by. Landlord in escrow. Rent for the month of .tune '2006 will be prorated at settlement. Regular rental payments by Tenant, shall thereafter commence in advance on the first day of the -following.' month. The rent as set forth above shall remain constant for the fast (111). year of the lease term. Thereafter, on an annual basis rent shall increase by two and one-half percent (2:5%) above the prior lease year's rent as follows: Lease Year Year L emu- an M onthly Rent . Year 2:: $280,100.00 $23,341.67 Year 3 $287,102.50 $23,925.21 : i Year 4:" $294,280.06 $24,523.34 Year 5:' $301,637.06 $25,136.42 Year 6: ? $309,177.98 $25,764.83 Year 7: * $316,907.42• $26,408.95 Year 8: • $324,830.10 $27,069.18 F Year, 9:' ,t $332,950.85 $27,745.90 , Year 10: $341,274.62 $28,439.55 $349,806.48 $29,150.54 Any rental payment not received by the 5th of the month shall be subject to a 5%0 late fee. The rent'for the renewal terms set forth in Paragraph 2 above shad increase by two and one-half percent (2.5%0) above the prior lease year's. rent or prior renewal lease year's rent, as the case maybe. All amounts (other than Rental, which shall be payable as herein set forth) owed by the•Tenant to the Landlord hereunder shall be paid within five (5) days from the date that Landlord; renders statements of account therefore and all amounts (including Rental) not paid when due shall accrue and bear interest at the rate of one percent (1%) pet. month (twelve percent (11%) annually) until paid. 'Time is of the essence in Tenait's payment of Rental and Tenant's performance of each and every term, covenantand condition of this Lease incumbent an Tenant. 4. REAL ESTATE TABS. A. Real Estate Taxes. As Additional Rent, Tenant agrees to pay all real estate taxes levied. upon the subject property of any nature including future. assessments. Payments by Tenant of all real estate taxes shall commence simultaneously with the rentals hereunder. 2 + . sticldlEivsclbrandylcalabrese.lease / June 9, 2406 B. Personal Property Taxes. Tenant agrees to pay any and all taxes levied upon the personal property, including trade-fxtureg and inventory, kept on the premises, as well as all taxes levied against the -land and the building and improvements situated thereon or on the rents derived by Landlord therefrom during the term of the Lease after :presentation to Tenant by Landlord of statements from the taxing jurisdiction in which said property is located. Landlord may,,. however, direct the taxing authorities to send the statements directly to the Tenant. Landlord further agrees that Tenant, in the name of Landlord, but at Tenant's sole expense, may protest any assessment before any taxing authority or board or maintain any necessary legal action in reference to said assessment or for the recovery of any taxes paid thereon. Nothing herein contained shall require Tenant to pay any income or excess profit taxes assessed against Landlord or any corporation, capital stock or franchise tax imposed upon Landlord. C. Method of Payment. Landlord shall give written notice advising Tenant of the' amount of real estate taxes, together with a copy of the tax bill, and Tenant shall pay such amount to Landlord within the first thirty (30) days of the face amount period.. Landlord and Tenant acknowledge that at the real estate closing Landlord (Buffer) will not reimburse Tenant (Seller) for the current year real county/townslA and school real estate taxes that have been paid by Tenant, and Tenant will be considered paid-until the. next calendar or fiscal year tax billing period: as applicable. If this. Lease shall terminate during a tax year, Tenant shall p4y to Landlord a pro rata portion' of the amount that would have been due. for the full tax year based on the number of days of said tax year expired on the date of termination. 5. UTILITIES AND SERVICES. Tenant-shall contract in its own name for and promptly pay all charges for electricity, gas, water, sewer, telephone and any other utility used or consumed in the Premises to the concern furnishing the same. Landlord shall not be .liable. in any way to Tenant for any failure or defect in or of any utility service furnished to the Premises by reason of any requirement, act or omission of the public utility company serving the Premises with electricity, water or other utility service, or because of necessary repairs or improvements. Tenant's use of electric energy in' the Premises shall not at. any time exceed the capacity of any of the electrical conductors and equipment in or otherwise serving the Premises. To insure that such capacity is not exceeded and to avert possible adverse effect upon the Building electric service, Tenant shall nbt, without Landlord's prior written consent in each instance (which shall. not be unreasditably withheld) connect any additional fixtures, appliances or equipment (other thal lamps, typewriters and similar small office machines) to the Building electric distribution systems or make any alteration or addition to the electric system of the Premises existing on the commencement date of this Lease. 3 r ; st cldlevsMrandylcafabrese.lease. June 9, 2006 6. MAINTENANCE OF LEASED PREMISES. A. Maintenance by Tenant. Tenant shall, at its sole cost, keep and maintain the interior Leased Premises [together with exterior (i) windows,. including sashes, (ii) heating, ventilating and air . conditioning` equipment and sewer and other lines. serving the Leased Premises], including without limitation, the partitions, ceiling, interior portions of exterior walls, floor covering therein, and the fixtures, equipment, machinery, appliances and utility lines therein and appurtenances thereof [such as, but not limited to, lighting fixtures and. lenses and such fixtures, equipment, machinery controls; appliances and • utility. lines and appurtenances thereof, as areused for, in connection with or which are a part of the electrical, plumbing, heating, air conditioning, ventilating„ or any other mechanical systems in or serving the Leased Premises], in conformity with Landlord's hazard insurer, neat and clean and in good order, condition, maintenance and repair. Tenant shall also at its cost 'procure and maintain in the Leased premises all safety appliances required by Landlord's hazard insurer to be maintained therein. Tenant.shall be responsible for the cost of replacement of any and all plate, window and other glass (structural or otherwise) in, on or about the Leased Premises., which may be broken or destroyed. Before undertaking repairs to the Leased Premises (other than minor interior non-structural repairs), Tenant shall first obtain Landlord's approval of the plans and specifications therefore, which approval is not to be unreasonably withheld. Tenant shall contract with a heating' and air conditioning contractor, approved by Landlord, who shall provide a complete service and maintenance contract to Tenant at least annually, the inspection of the HVAC equipment serving the Leased Premises, including a written report of the condition there of to be provided to Landlord and Tenant, the periodic oiling of the equipment Lvhere required, the tightening of belts, the filling of pitch pans and the sealing of'.water leaks, among other things. The -service and maintenance contract and its related costs shall- be the sole cost and expense of the Tenant. The existence of a service contract with a Landlord approved vendor shall not relieve Tenant of its ` obligations to maintain and repair such equipment as. above provided. f I: • B. Roof Repair and Replacement. The current condition of the roof requires repair the cost of which has been provided for through the escrow of funds by' Tenant (Seller) at the time of closing on the sale of the real estate to Landlord (Buyer), Landlord shall 'Make such required repairs and use said escrow funds, In addition, to the extent that the existing roof requires replacement during the term of this lease, or any renewal terms, Landlord's cost of the roof replacement shall be amortized over the remaining' lease term, including any renewal terms, and Tenant's rent shall be increase by said amount. Landlord shall give Tenant thirty (30) days advance notice of any increase in rent. 4 i 5 c\dl6'Tsr\brandy\caiabro-se.lease } June 9, 2006 C. 'Maintenance by Landlord. Subject ,to the obligations of.Tenant under the. provisions of B above, the foundations, ' roof (excluding interior ceilings) and except as specifically provided in B above, and'exterior portions of the exterior' walls of the Uased Premises shall be maintained by Landlord at its expense in good order, condition, maintenance and repair.. Landlord shall not be deemed to have breached its obligation to make the repairs. required of Landlord as set forth in this Section; 'or to be liable for. any damages resulting therefrom, unless Landlord fails? to make the same within 'a reasonable period (taking into consideration the type of repair involved). after receiving notice from Tenanf of the need therefor. 7. SECURITY. The three (3) month base rent balance in the. amount of $70,025.00 set forth in Paragraph 3 alcove shall serve as Landlord's deposit the receipt of which is hereby acknowledged as security for the full and faithful performance by Tenant of each and every term, covenant, and condition of this Lease. In the event.that Tenant defaults in any of the terms, provisions, covenants, and conditions of this Lease, including but not limited to payment of.any rental or additional rental, Landlord may use, apply, or retain the whole or any part: of the security so deposited for the payment of any such sum in default, or for any other sum which Landlord may expend or be required to expend by reason of Tenant's dekult, including any damages or deficiencies in the reletting of the premises, whether svlch damage or deficiency may occur before or after -some. repossession proceeding or other reentry by Landlord. In the even that Tenant shall fully. and faithfully comply ;with all the terms. and conditions of this Lease, the security or any balance thereof, shall be returned to Tenant after expiration of the lease term. The Tenant shall not be entitled to any interest on the aforesaid security. If the Landlord utilizes any of the security deposit?in curing a default on the part of Tenant, Tenant shall immediately pay Landlord the amodnt necessary to restore the security deposit to its original amount. S. PERMITTED USES BY TENANT. Tenant represents, covenants and warrants that the Premises will be used lawfully for the following purposes: A machine shop operation 9. OTHER LWOSITIONS. In addition to the Rental provided hereunder, Tenant agrees to -pay each and all licenses and permit fees and all taxes and increase in taxes levied and assessed by any governmental body by virtue of any special leasehold improvements or by virtue of Tenant conducting its described use, business or operation on the Premises, the employment of agents, servants, or other third parties, the bringing, keeping or selling of personal properly or .chattels of whatsoever nature from the Premises. The foregoing is intended to bind Tenatit to pay, and promptly discharge, all taxes and/or levies, together with related interest aid penalties, whether assessed by Federal. or State authority or any political subdivision thereof, directly-or indirectly related to its business, improvements, functioning, employment, assets, existence, sales entertainment or the like. Tenant specifically agrees to reimburse Landlord for any increase in ad valorem taxes resulting i r 's{ cUbNrsrtbrandykca1a6me.tease June 9, 2006 from use of fixtures or improvements by Tenant which Landlord becomes obligated to Pay 10. ASSIGNMENT AND SUBLEASE.- Tenant shall not make or permit any assignment (by operation of law or otherwise) of this Lease without the prior express written consent of Landlord.. Tenant-shall make no sublease or mortgage of this Lease, in whole or- in part, without the prior express written, consent of Landlord. • Tenant shall not permit the use or occupancy of the Premises, or any portion thereof, by anyone other than Tenant and shall not make an. transfer of any nature whatsoever of its- right-under this Lease or of Tenant's interests set forth in this Lease without. the prior written consent of Landlord first had and obtained, Any such assignment or any such subletting, whether approve by Landlord -or not, shallxnot relieve the Tenant of any liability for the total agreed rentals due hereunder nor frork Tenant's obligation to perform all the covenants herein contained. Any written consent *hich may in any specific instance or circumstance be given by Landlord shall not imply or be deemed to be consent in any other instance or circumstance. 11. SUBORDINATION, A.TTORNIMENT AND NON-DISTURBANCE. The parties acknowledge and agree that this Lease Agreement is under, subject, and subordinate to any and all mortgages and security interests that presently encumber the property or that in the future may encumber the property of which the leased premises is a partwithout ' the necessity of any further instrument or act on the part of the Tenant to effectuate such subordination. Tenant agrees, at the election of Landlord, to attorn to any holder of any mortgage to which this lease is subordinate. Tenant shall execute and deliver upon demand such further instrument or instruments confirming such subordination of this Lease to all underlying leases and to the lien of any such mortgage and/or other encumbrance as shall be desired by any such mortgage or proposed mortgage or by any other person. Tenant hereby appoints Landlord the attorney-in-fact of Tenant Irrevocably to execute and delivery any such instrument or instruments for and in the name of Tenant. • ,7 i. If Landlord shall molgage the real property of which the leased premises is -a part, Landlord shall obtain 6m the lienholder a Non-Disturbance Agreement for the benefit of Tenant. Any Non-Disturbance Agreement is subject to the requirement that Tenant shall not have been.in• default under the terms, covenants and conditions of this lease or any time during the lease tzrm. 12. COMPLIANCE WITH LAWS AND INDEMNIFICATION. Tenant agrees to strictly comply with all pertinent laws, ordinances, statutes and regulations whatsoever, of any governmental body or subdivision, incident to its occupancy of the Premises and its use thereof. Tenant further covenants and agrees to indemnify and hold Landlord harmless from any loss, cost or expense whatsoever, directly or indirectly resulting or occasioned to, or imposed upon, Landlord (1) by injury to or destruction of life or property resulting from the use and occupancy by Tenant (including, but not limited to any such injury or destruction caused, in whole or in part, by its agents, servants, employees, independent 6 ?tickdtbVsAbr•and&afabcese.1ease ? Il j} tune 9, 2006 contractors, invitees or licensees), or (2) by damage to or destruction of the Building structure, or any part tkaereof, or of any abutting real property caused by or attri butabie to the negligent act or alts or omission or omissions to- act of Tenant (including but not limited to, any such damage or destruction caused, in whole or in part,' by its agents} servants, employees, contractors, invitees, or-licensees) or caused by or attributable to the Tenant's failure to perirm its obligations under this lease. As used in this Paragraph 12. the term "Landlord" 'shall be deemed to include any agent, employee or servant of Landlord. 13. QUIET ENJOYMENT UNTENANTABILITY. Landlord hereby warrants that Tenant upon payment of the Tent and performing the provisions of this Lease on its part to be paid and performed shall have.peaceful and quiet possession of the Premises against all parties claiming adversely thereto by or under Landlord. If, during the term of this Lease, the Building or building equipment or Premises be destroyed by fire or any other cause whatsoever, or •parti4y destroyed so as to render the Premises wholly unfit for occupancy, and Landlord shall conclude that they cannot be repaired for occupancy within 120 days from the happening of the loss of damage, then this Lease shall, at Landlord's option, immediately terminate in which case Tenant shall surrender the Premises and all interest therein - and Tenant shall pay rent only to the time of such surrender. In case of total or partial damage or destruction to the-Premises, Landlord may re-enter and repossess the same or any part thereof for the purpose of removing or repairing the loss or d3.mage 'and shall proceed with reasonable dispatch to the repair of same unless, under the foregoing clause of this paragraph, the Lease shall - have terminated. The rent during the period of such repairs shall be.wholly abated if all of the. Premises have been thus repossessed by Landlord for the purpose of repair for the period that Tenant has been ':thus. dispossessed; and if only a portion of the Premises are thus repossessed, the rent shall,be abated for the period of such dispossession ratably, based on the portion of the Premises thus repossessed. Should the Building or Premises be destroyed or damaged by fire or other cause, due to the fault or neglect of'Tenant or its agents, servants, employees, independent. contractors, invitees, or licenses, the Landlord may repair such damage without prejudice to any rights of subrogation of Landlord's insurer and there shall be no apportionment or abatement of rent: 14. SIGNS.. Tenant shall hot erect or install any sign or other type display whatsoever, either upon the exterior of the. Building, upon or in any window, or door therein located, or the Premises, without the.jpHor express written consent of Landlord. Any free-standing sign to be situate on the Pitemises shall be approved in writing by Landlord and comply with all applicable Township signage requirements. It is the responsibility of the Tenant to investigate all appropriate governmental authorities governing sign size and location and to optain approval.. 7 it cldlbksrlbrandylcalabrese.lease June 9, 2006 15. TENANT'S CARE OF PREMISES.. Tenant shall not make. alterations in, or additions or improvements to the Premises without the prior express written consent of Landlord. Landlord's refusal to. grant such consent shall be inclusive. In addition: A. Tenant shall commit no waste with respect to the Premises and shall take good care of and keep in good repair the 'Premises and fixtures .therein and,. at'the expiration or e#her termination or cancellation of this Lease, shall surrender the Premises and factures therein in. the same condition as when initially received by Tenant, subjec only to reasonable wear'and tear resulting from normal use, and shall surrenderall keys for the Premises to Landlord at the place then fixed for'the payment of resit and shall remove all Tenant's property before surrendering the Premises. All injuries to the Building or fixtures caused by moving the property of Tenant in a out of the-Premises, and any and all breakage or other injury whatsoever 'done by Tenant, its agents, servants, employees, independent contractors, licenses, invitees, or visitors, as well as any damage done by' water, steam, electricity, fire or other substance due to the neglect of the aforesaid parties, may be repaired by Landlord, at the expense of Tenant, and shall become due and payable upon delivery of a statement of such charges by Landlord to Tenant or mailing the same postage prepaid, to Tenant at his last known address. B. All alterations,. additions or improvements upon or affixed to or in the Premises (including, but.-not limited to carpets; drapes and anything bolted, nailed, plumbed or otherwise secured in a manner customarily deemed to be permanent) shall be deemed to be' a fixture inuring to the Building, and. shall not be subject to attachment of a mechanic's, materialman's or- similar lien, and shall in any event be and becom4'the property of Landlord and remain upon the Premises and be surrendered at lthe end of this Lease, Business machines and such equipment are excluded from,.Ls section. C. Tenant shall nO't use or permit to be brought into the Premises or the Building any flammable or explosive material or other articles deemed hazardous to persons or property. Tenant shall not occupy the Premises. in any manner which shall invalidate or 5e . in conflict with fire or other insurance ''policies covering the Building or itg operation or- the Premises, or increase the rate of fire or other insurance in the Building or its operation.or the Premises, over that in effect prior to this Lease. If, by any reason of failure of Tenant to comply with provisions of this paragraph, any insurance premium shall be at the beginning of this Lease or any time thereafter be higher than it otherwise would be, the Tenant shall reimburse the Landlord as additional.rent hereunder for that part of all insurance premiums thereafter paid by Landlord, which shall have been charged because of such failure by Tenant and shall make such reimbursement upon the first day of the month following such payment by Landlord.. 8 fl l • she1d1b1rsftrandylcalabrese.lease y. June 8; 200.6 D. Tenant shall not permit any obnoxious odors, chemicals or other substances to be produced, manufactured or stored in the demised premises. A breach of the provision shall pe deemed a material breach of this Lease entitling the Landlord to exercise. any rer?edies available to it hereunder or at law. x 16. WAIVER OF CLAIkS. To the extent permitted by law, the Landlord shall not be liable for and the Tenant releases the Landlord and Landlord's agents, contractors and servants from, and waives all claims for damage to person' or property sustained by the Tenant or any occupant of the Building or Premises resulting from the use and condition of the Premises or any,..part or any equipment or appurtenance becoming out of repair, or resulting from any accident in or about the Premises, or resulting .directly or indirectly from any act or neglect of any tenant or occupant of the Premises or of any other person, including Landlord, its. agents or employees. This section shall apply especially, but not exclusively, to the flooding of basement or other subsurface areas, and to damage caused by refrigerators, sprinkling devices, air-conditioning apparatus; water, snow, frost, steam, excessive heat or cold; falling plaster, broken glass, sewage, gas, odors or noise, or the bursting or leaking ofpipes or plumbing fixtures, and shall apply equally whether any such damage results from the act or neglect of the Landlord or of any other persons, and whether such damagd be caused or result from any thing or circumstance above mentioned or referred io, or any other thing or circumstance whether of a like nature or of a wholly different nature. - If any such damage, whether to the Premises or the Building, result from any act or :neglect of the Tenant, the Landlord may,. at the Landlord's option,, repair such damage and the Tenant shall, upon demand by the Landlord; reimburse the Landlord forthwith for' the total cost of such repairs. Tenant covenants to indemnify and save Landlord harmless against and from any and. all loss, cost, damage, claim, liability or expense including, but. not limited to,. reasonable attorney's fees, arising out of or resulting from any injury or claim of injury of any nature of sort whatsoever to any person or property suffered or received in or about the Premises at any time during the term hereof, or arising out of any failure of Tenant in any respect to: comply with any of the requirements or provisions of this Lease. Tenant hereby releases Landlord and Landlord's officers, agents, employees and servants, from any and all claims or demands. for damages, loss, expense or injury to the Premises, or to the furnishings and fixtures. and equipment, or inventory or other property of Tenant in, about or upon the Premises, as the case may be, which nay be caused by or result from perils, events or. happenings which are the subject of insurance carried by the Tenant and in force at the time -of any such loss. All property of any 14ind belonging to the Tenant or any other person that is in the Building or the Premises shall be there at the sole risk of the Tenant or other person only, and the Landlord shall not be liable for damage thereto or theft or misappropriation thereof. Landlord or its agents, servants or employees, shall not be liable for any injury, loss or damage to any persons or property on or about the premises from any other cause. of whatsoever nature unless the same is directly caused by gross negligence of the Landlord and 'there is no fault or negligence of the Tenant, and Tenant shall save Landlord. harmless an'd indemnified against such injury, loss or damage, or liability or claim thereof arising from any act, omission or negligence of Tenant. 9 1 stiw\dfb?sMrandy\calabcese.tease June 9, 2006 17. TENANT'S INSURANCE. Tenant shall, durng the entire term hereof, at its sole cost and expense, obtain, Maintain'and keep in full force and*effect the following policies, of insurance: A. All risk insurance including fire insurance (with extended coverage and vandalism and malicious s?ischief coverage), water damage, sprinkler leakage and..piate glass insurance, on thestandatd forms, insuring all of Tenant's prop.erty.in the Premises, and all betterments, additions, repairs, improvements and alterations made to the Premises by Tekant, and all plate glass windows, plate glass doors and other plate glass in the Premises, in an amount equal-to 100% of the replacement cost thereof. B. A combination of comprehensive general liability insurance'and excess (umbrella) coverage to include personal injury, bodily injury, broad-form. property damage, operation's hazard, independent contractor's coverage, blanket contractual liability (including insuring contractual liability under the inden uifications of Landlord by Tenant set forth in this Lease), premises operations liability and in limits approved by Landlord inwriting which approval shall not be unreasonably withheld. Said policies shall name Landlord as an additional insured. C. Worker's compensation and etnployer's liability insurance in a form and amount required by law. - D. Any, other forty or forms of insurance standard to the industry as Landlord may reasonably req? ire from time to time in form, in amounts and for insurance risks against which`4.prudent Tenant would protect itself. All policies shhll.be taken out with insurers that are reasonably acceptable to the Landlord and Which are, licensed to do business. in the Commonwealth of Pennsylvania atld certificates showing that such coverages to be in effect shall be furnished to Landlord upon request. In addition to Tenant, all policies shall also name Landlord'and.any other person,'firm or corporation designated by Landlord and in privity: with it, as an additional insured. Each insurer -shall agree, by endorsement upon the certificate issued by it or by independent instrument issued to Landlord, that it will give.Landlord thirty (30) days' written notice before the policy in question shall be altered- or canceled. Tenant shall be entitled to provide the insurance coverage required hereby through the use of blanket insurance policies covering the Premises. Tenant agrees that certificates of insurance shall be delivered to Landlord as soon as practicable 'after the placing of the required insurance and that renewal certificate shall be delivered not less than ten (10) days prior to the expiration of such policies. E. Insurance on B-iHldin s and Improvements. As additional rent, in each calendar year during tLe term, Tenant shall pay to Landlord, Landlord's total cost of 10 ! .n stoldlb\rsftrandykmIabrweJease g June 8, 21006 insuring the P-remises and improvements thereon,. including public liability; (including "umbrella coverage"), workmen's compensation and hazard insurance (including rental value insurance, fire and extended coverage [with vandalism and malicious mischief endorsement]; boiler and machinery, and all-risk policies). Tenant's insurance payment shall be paid in monthly installments on the first day of each calendar month during the term in advance, in an amount reasonably estimated by Landlord. • Within 90 days after the end of each calendar year during the term, Landlord shall furnish Tenant with a statement summarizing the actual insurance cost for such calendar year. F. Business Liability Insurance. Tenant shall keep in force with insurers that are reasonably acceptable to the Landlord and which are licensed to do business-in the Commonwealt4 of Pennsylvania, a policy to cover business liability, including premises operations liability and business interruption liability, in which the limits . of coverage shall not .be less than $1,000;000.00, single limit. In addition to Tenant, the policy shall name Landlord as an additional insured. Tenant shall continually provide. Landlord with a certificate of such insurance, which shall provide that the insurer will give the Landlord at least 30' days' written notice prior to any cancellation of, lapse or material change in the insurance. 3 G. Indemnificatiot. Tenant will, subject to the provisions of paragraph H below, indemnify, save harmless and defend -Landlord and its officers, agents and servants, from and against any and all claims, actions, liability and expense in connection with loss of life, bodily injury and/or damage to property arising from, or out of any occurrence in, upon or at the Premises, or the occupancy or use by Tenant, its. agents, employees, servants, subtenants, licensees or concessionaires, of the Premises onany partthereof, or outside the Premises which is occasioned wholly or in part by any willful or negligent act or omission of Tenant, its agents, employees, servants, subtenants, licensees or concessionaires, unless the same be caused by the willful or negligent act or omission of Landlord, its agents, employees or servants. H. Waiver of Subrogation. Anything in this Lease to the contrary notwithstanding, it is agreed that :each party (the "Releasing Party") hereby releases the other (the "Released Party") from any liability which the Released Party would, but for this paragraph H, have had to the Releasing Party during the term of this Lease, resulting from-the occurrence of any accident or occurrence or casualty (i) which' is or would be covered by an "all-risk" policy (irrespective of whether ,such coverage is being carried by the Releasing Party), or (ii) covered by any other casualty or pragerty damage insurance being carried by the Releasing Party at the time of such occurrence, which accident, occurrence or casualty may have resulted in whole or in part from any act or neglect of the Released Party, its officers, agents or employees; PROVIDED, HOWEVER, the release hereinabove set forth 11 sh Ghd}b\rsr\brandy\calabrese.lease June 9, 2006 Shall become inoperative and null and void if the Releasing. Party wishes to place the appropriate;insurance with an insurance company which (a) takes the position that the existence of such release vitiates or would adversely affect any policy so insuring the Releasing Party in a substantial manmer and notice thereof is given to the Released Party, or (b) requires the payment of a higher premium by reason of the existence o such release, unless in the latter case the Released Party-within 10 days after notip thereof from the Releasing Party pays such increase in premium. 18. EMINENT. DOMAIN.'' If the whole of the Premises shall be. taken or condemned, or purchased in lieu thereof, by any government authority for any public or quasi-public use or purpose, then, in thit event, the term of this Lease shall cease and terminate from the time when the possession shall be required for such. use or purpose. ' The rent shall in such case be apportioned to the date of•such taking or purchase, as the case may be. In the event of a partial taking only of the Premises, the Landlord shall so notify the Tenant in writing and the Tenant shall have the option to cancel this Lease, giving the Landlord written notice within twenty (20) days after receipt of such notice from the Landlord; provided the balance of the Premises remaining cannot be suitably used by the Tenant for its purposes heretofore stated. If the. Tenant is entitled to exercise said option to cancel and does so, then such canceling shall be effective and the rent shall in such case be apportioned to the date of such taking or purchase, as the case may be. In the event the Tenant is not entitled to cancel the Lease or, if it is entitled to do so, it does not exercise its option, said TenantAwill be responsible for the rent as heretofore set forth, apportioned to the date of such taking or purchase; i.e. after the taking, or purchase in lieu thereof, the rent herein reserved shall be reduced and the Tenant shall be ' required to pay that proportion of rent herein reserved • as the net rentable square feet contained in the remaining leased space bears to the net rentable square feet'contained in the leased space before such taking or purchase. The Landlord and theTenant hereby agree that any award of proceeds -resulting from a condemnation or sale`in lieu thereof of the whole or part of the Premises shall belong solely to the Landlord and the Tenant hereby waives any right to make any claim therefore as the result of this Lease. 19. ACCESS TO PREMISES Landlord, or Landlord's agents shall have the right to enter the Premises at all reasonable times to examine the same and to show them 'to prospective purchasers, mortgagees, lessees or tenants of the Landlord, or to public officials lawfully having an interest therein, or to make such repairs, alterations,- improvements or additions as the Landlord may deem necessary or desirable. Landlord shall not be liable to Tenant for any inconvenience, interferences, annoyance, loss or damage resulting from work done iii or upon the. Premises or any portion of the Building or adjacent grounds. Landlord will make•.4a11 attempts to provide 24 'hour advance notice of any entry, emergencies excepted. ui 12 siyc\dtb'trstlbrandyAcalabrese.lease June J, .2006' 20. NOTICES. Any notice which the Landlord may desire or be required to give the Tenant shall be deemed sufficiently given or. rendered, if in writing, delivered to the Tenant by certified or registered mail, return receipt requested, addressed to the Tenant, at the address first above written or at the Premises, as appropriate, and any notice which Tenant may desire or be required to give the Landlord shall be deemed sufficiently given or rendered, if in writing, delivered to'Landlord by certified or registered mail, return receipt requested, addressed to its business office at: c/o RSR Realtors, 3. Lemoyne Drive, Suite 100, Lemoyne, PA 17043, or such other places as Tenant or Landlord may from time to time designate in writing. Any notice given hereunder shall- be deemed delivered when the return receipt is signed or refusal to accept the notice is noted thereon. 21. TENANT'S DEFAITLJ. If the Annual Minimum Rent, additional rent, or any other charge payable by Tenant under this Lease shall be unpaid on the date payment is required by the terms hereof and shall remain so for a period of 5 days, or if Tenant fails to perform any of the other terms, conditions, covenants and obligations of this Lease to -be observed and performed by Tenant for more-than 15 days after Landlord gives Tenant notice of such default ?it being agreed that a default, other than the failure to pay money, which is of such a character that rectification thereof reasonably requires longer than said 15 day period and corilpletes the same with due diligence), or if Tenant shall vacate or abandon the Leased Premises or suffer this Lease to be taken under any writ of execution, attachment or other process of law, or if this Lease shall by operation of law devolve upon or pass to any other party, or if an "Act. of Bankruptcy" (as defined in Section 18.02) shall occur, or if Landlord shall have notified Tenant of Tenant's default three (3), or more times in any twelve calendar month .period, then, in any of such events, Landlord shall have, besides its other rights or remedies, the following immediate rights: A. At its option, to terminate this Lease and the term hereby created without any right on the part of Tenant to waive the forfeiture by payment of any sum due or by other performance of any condition, term or covenant broken, whereupon Landlord shall be entitled to recover, in addition to any and all sums and damages for violation of Tenant's obligations hereunder in existence at the time of such termination, damages for Tenant's. default in an amount equal to the amount of the rent reserved for the balance of the term of this Lease, as well as all other charges, payments, cost=`s and expenses herein agreed to be paid by Tenant, ail .of which amount shall be' immediately due and payable from Tenant to Landlord: B. . At its option, t'y notice to Tenant, to re-enter and take possession. of the Leased Premises without terminating this Lease. No re-entry or taking possession of the Leased Premises by Landlord pursuant to this clause B. shall be construed as an election on its- part to terminate this Lease unless a notice of such intention is given to Tenant (all other demands and notices of forfeiture or other similar notices being hereby expressly waived by Tenant). ' 13 shy\d{b\csribrandylcalabrese.lease June 9, 2006 C. At its option, to require that upon (i) any termination of this Lease, whether by lapse of time of by the exercise of any option by Landlord to terminate the same or in any othet'-mariner whatsoever, or (ii) any termination of Tenant's right to possession without termination of this Lease, Tenant shall immediately surrender' possession of the Leased Premises to Landlord and immediately vacate the same, and remove all 'effects therefrom, except such as may not be removed under other provisions of tYus Lease. D. At its option, jo make such alterations and repairs as Landlord shall determine may be reasonably necessary to relet the Leased Premises, and'to relet the same or any part thereof for such term or terms (which may be 'for a term extending beyond the term of this Lease) and upon such terms and conditions as Landlord in its sole discretion may deem advisable. Upon each reletting, all rentals received by Landlord from such reletting shall be applied as follows: first, to the payment of any indebtedness other than rent or other charges due under this Lease from Tenant to Landlord; second to the payment of any reasonable costs and expenses of such reletting, including brokerage fees and attorneys' fees and costs of such alterations and repairs, each of which fees and costs shall be reasonable in amount; and third, to the payment- of rent and other charges due and unpaid hereunder. In iio event shall Tenant be entitled to receive any surplus of any sums received. by Landlord on a reletting in excess of the rental and other charges payable hereunder. If such.rentals and other charges received from such reletting during any month are less than those to be paid during that month by Tenant hereunder, Tenant shall pay any such deficiency to Landlord (notwithstanding the fact that Landlord may have received rental in excess of the rental and other charges payable hereunder in previous or subsequent months), such deficiency to be calculated Wand payable monthly. Notwithstanding any reletting without termination, Landlord may at any time thereaft er elect to terminate this Lease for such previous breach in the manner provided in this Section. E. CONFESSION OF JUDGMENT: If Tenant shall default in the payment of . the rent herein reserved or in the payment'of any other sums due hereunder. by Tenant, Tenant hereby authorizes and empowers any Prothonotary or attorney of any court of record.to appear for Tenant in any and all actions which may be brought for said rent and/or said other sums; and/or to sign for Tenant an agreement for entering in any competent court an amicable action or actions for the recovery of said rental and/or other sums; and in said suits or in said amicable action or actions to confess judgment against Tenant for all or any part of said rental and/or said other sums, including but not limited to the amounts due from Tenant to Landlord under subparagraphs A, B, C and/or D of this paragraph; and for interest and .costs,'togeth4 with any attorneys' commission for collection of ten percent (10%). Such authority shall not be exhausted by one exercise thereof, but' judgment mak be confessed as aforesaid from time to time as often as any of 14 shbidlblrsrlbrandyAcalebrese.lease ? } June 9, 2006 said rental and/or other sums shall fall due or- be in arrears, and such powers may he exercised as well after the expiration of the initial term of this Lease and/or during, any extended or renewal term of this Lease and/or after the expiration of any extended or renewal term of thiRLeas? f (Tenant)' F. When this Lease and the term of any extension or renewal thereof shall-have been terminated on account 'of any default by Tenant hereunder, and also when the ter "hereby created or any extension or renewal thereof shall have expired, it shall be lawful for any attorney of any court of record to appear as attorney. frig Tenant as well as for all persons claiming by, through or under Tenahq-and to sign an agreement for entering in any competent court an amicable action in ejectment against Tenant and all persons claiming by, through or under Tenant and therein confess judgment for the recovery by Landlord of possession of the Premises, for which this Lease shall be his sufficient wariant; thereupon, if Landlord so desires; an appropriate writ of possession may issue forthwith, without any -prior writ or proceeding whatsoever, and provided that if for any reason after. such action shall have been commenced it shall be determined that possession of the Premises remain in or be restored to Tenant, Landlord shall have the right for the same default ;and upon any subsequent default. or defaults, or upon the termination of this Lease or. Tenant's right of possession as.hereinbefore set forth, to bring one or more further amicable action or actions as hereinbefore set forth to recover possession of the Premises and confess judgment. for. the recovery of possession of the,Pyemise, as hereinbefore provided. % / (Tenant) G. In any. amicable action of ejectment and/or for rent and/or other sums brought hereon, Landlord shall first cause to be filed in such action an affidavit made by Landlord or someone acting for Landlord, setting forth the facts necessa?y to authorize the entry of judgment, of which facts such affidavit shall. be prima facie evidence, and if a true copy of this Lease (and of the truth oi£ the copy such affidavit. shall-be- sufficient evidence) shall be filed in such shit, action or actions, it shall not be necessary to file the original as a warrant of attorney, any rule or Court; custom or practice to the contrary notwithstanding. ' (Tenant) H. At its option, :to collect from Tenant any other loss or damage which Landlord may sustain by reason of any breach and any diminished value of the Leased Premises resulting from said breach. 15 shb\d 6\rsftrandy\calabrese.lease June 9, 2006 I. Landlord's Ri:kht to Cure Defaults: If Tenant fails to perform any agreement or obligation oni part to be performed under this Lease, Landlord shall have the right W. if no emergency exists, to perform the same after giving 15 days' notice. to Tenant; aad.kii) in any emergency situation,' to perform the same immediately without notice: or delay. For the purpose of rectifying Tenant's defaults as aforesaid, Landlord shall have the right to enter the Leased Premises.. Tenant shall, on demgnd, reimburse Landlord for the costs and expenses incurred by Landlord in rectifying Tenant's defaults .as aforesaid, including reasonable attorneys' fees: Landlord shall not be' liable or in any way responsible for any loss, inconvenience, annoyance, or damage resulting to Tenant or anyone holding under Tenant for any action taken by Landlord pursuant to this Section. Tenant hereby waives and releases all errors and defects which may intervene in the Landlord's. exercise : of any , of its remedies hereunder, including the summary remedies; Tenant further waives the right of inquisition.oft any real estate levied on and Tenant voluntarily consents to an immediate execution upon any judgment obtained by Landlord; Tenant also waives and releases all relief from any and all appraisement, stay or exemption law. of any state now in force or hereafter enacted; Tenant waives any aaotice to quit required by any lawn-ow in force f he fter; enacted. (Tenant) Nothing in this Section shall be deemed to"limit Landlord's rights and remedies in the .event of a default by-YTenant, and the Landlord's rights and remedies set forth in this Lease shall be in addition to those available to Landlord at law or in equity.' 22. BANKRUPTCY. If at any time prior to or after the commencement of the term of this Lease there shall be Bled by Tenant or Guarantor, in any court pursuant to any statute either of the United States or of any State,.a petition in bankruptcy (including, without limitation, a petition -for liquidation, reorganization or for. adjustment of debts of an individual with regular income), or if any case, proceeding . or other action shall be commenced seeking to have an order for relief entered against Tenant or Guarantor as a debtor in bankruptcy :proceedings or to adjudicate Tenant or Guarantor a bankrupt or insolvent, or seeking reorganization, arrangement, adjustment, liquidation, dissolution or composition of it- or its debts under any law. relating to bankruptcy,. insolvency, reorganization or relief of debtors, or seeking appointment of a receiver, trustee, custodian or other similar official for it or for all or any substantial part of its property, and such case, proceeding or other action results in the entry of an order for relief or is not dismissed within X30 days of the filing thereof, or if Tenant or Guarantor becomes insolvent or is generally not paying or admits in- writing its inability to pay its debts as they mature, or makes:' an assignment for the benefit of creditors or petitions for or enters into an arrangement. with its creditors or a custodian is appointed or takes possession of Tenant's or Guarantor's property .(whether or not a judicial proceeding is instituted in 16 i 3 si,c dibirsr?brandylcalabrese.lease June 8, 2006 connection with such arrangement or in connection with the appointment . of such custodian}, or if 'Tenant or Guarantor shall take any action to authorize or in contemplation of any of the events set forth above (each of the foregoing events to be hereinafter referred to - as an "Act of Bankruptcy"), then, in addition to Landlord's other- rights and remedies. under this Lease and applicable law, this Lease-shall, at Landlord's option (and. if permitted by law), be terminated, in which. event neither Tenant nor Guarantor, nor any person claiming through or under Tenant or Guarantor or by virtue of any statute or of an order of any court, shall be entitled to possession of the Premises, and Landlord, in.addition to the other rights and remedies given by this Lease, or by virtue of any statute or rule of lAw, may retain as liquidated damages. any rent, Security Deposit or moneys received by Landlord from Tenant or others in behalf of Tenant. All rent, additional rent and otter charges payable by Tenant under this Lease shall constitute rent for the purpose of applying the provisions of Section 502(b)(7) of the Federal Bankruptcy Code. ; In the event an act of bankruptcy shall occur and this Lease is not terminated pursuant to the provisions of Paragraph A, the parties agree that: A. If there shall be a default in the payment of. Annual Minimum Rent or any additional rent, or a default in the observance or performance of any other provision of this Lease. binding on Tenant, Landlord shall be entitled to immediately discontinue furnishing any utilities and other services it has. been providing to the Premises, until such time as such* defaults have been fully cured, it being agreed that the foregoing action by Landlord shall a_no way cause or result in any abatement of Annual Minimum Rent or any other charge payable by Tenant during the continuance of the term of this Lease. B. If the Lease is ssumed by a trustee in bankruptcy, and assigned by the trustee to a third party , the such party shall (a) execute and deliver to Landlord an agreement in recordable form whereby such party confirms that it has assumed and agrees with Landlord to discharge all obligations binding on Tenant under this Lease, (b) represent and warrant in writing to Landlord that such party has a net worth and operating experience at least comparable to that possessed by Tenant named herein and Guarantor as of the execution of this Lease, (c) deposit with Landlord a Security Deposit and advance rent equal to that initially deposited by Tenant named herein, Nand (d) grant Landlord, to secure the performance of such party's obligations under this Lease, a security interest in such party's merchandise, inventory, personal property,- fixtures, furnishings, and all accounts receivable (and in the proceeds of all of the foregoing) with respect to its operations in the Leased Premises, and in connection therewith, such party shall execute such security agreements, financing statements and other documents (the forms of which are to be designated by Landlord) as are necessary to perfect such lien. } r. l1. a h,6adlblrsMrandy\calabrese.lease June 9, 2006 .C fi Any person or ntity to which this Lease is assigned pursuant to the provisions of the Bankruptc € Code,11 U.S.C. Section 101, et sec.. (the "Bankruu -Code") shall be deerne? without further act or deed to have assumed all of the obligations arising under_tWs Lease on and after the date of such assignment. If this Lease. is. assigned to any-person or.entity pursuant to the provisions of the Bankruptcy Code, any and all monies or other considerations payable or otherwise to be delivered' in connection with such assignment shall be paid or delivered to Bankrupt; shall- be and remain the exclusive property of Bankrupt and shall not constitute property of Tenant or of the estate of Tenant within the meaning of the Bankruptcy Code. Any- and all monies or other considerations constituting Landlord's property under the preceding sentence' not paid or delivered to Landlord shall be held in trust for the benefit of Landlord and be promptly paid or delivered to Landlord. 23. CONDITION OF PREMISES. It is agreed that, by occupying the Premises, Tenant acknowledges that it; has had full opportunity to examine the Building, including Premises, and is fuEy informed, independently of Landlord, • as to the character, construction and structure of the Building and land within the Premises. It is agreed.that by occupying the Premises the Tenant formally accepts the same and acknowledges that Landlord has complied with all requirements imposed. upon it under the terms of this Lease. 24. HAZARDOUS WASTE. A. Tenant hereby' covenants, represents and warrants that. it shall. not generate, transport, handle, store or otherwise encounter in, on or about the Premises, any hazardous waste or substance (for purposes of this Section herein called "hazardous waste") as defined by the applicable federal, state or local environmental r or occupational standards, including but not limited to material defined. as such in, or for purposes of, the Comprehensive Environmental Response, Compensation and Liability Act of 1980 ("CERCLA"), as amended by the Superfund Hazardous Materials Transportation Act (49 U.S.C. §1802'et seq.), the Resource Conservation and Recovery Act ("RCRA"). (42 U.S.C. §1802, et se q.), the Federal Water Pollution Control Act (33 U.S:C. §1251, et.sea.), the Safe Drinking Water Act (42 U.S-.C. §300(f), et M.), the Toxic Substance. Control Act (15 U.S.C. §2601, et se .), the Clean Air Act (42 U.S.C §7401, et seq.), or any other federal, istate or local statute, ordinance, code, rule, regulation, order or decree regulating, relating to or imposing liability or standards-- of conduct concerning • arty hazardous, toxic or dangerous waste, substance, element or material as no* or at any time hereafter in effect or amended (for purposes of this Section herein collectively called the. "Laws"). Tenant further covenants, represents and-,'.warrants that there will be no underground storage tanks in, on, under, within or about the Premises. 18 shtldlb\rsc brandy?calabrese.lease June 9. 2006 B. Tenant shall not use, store or permit to be stored on the Leased Premises any asbestos in any form, urea formaldehyde foam insulation, transformers or other equipment which contains. dielectric fluid or- other fluids containing levels of polychlorinated biphenyls in excess of fifty (50) parts per million: C. Tenant covenaaAits, represents and. warrants that it willindemnify.: and hold Landlord harmtess. from and against any and all liability, actions, claims, losses, damages and expenses arising out of, or.in any way relating to, a breach of the representations` warranties, covenants and- agreements. set forth in this Section, including: (a) claims of third parties. (including governmental agencies) for damages, including personal injury or property damages., penalties, response costs, injunctive or other relief; (b) costs or removal and restoration, including fees of attorneys and experts, costs of reporting to any governmental agency the existence of hazardous gubstances, hazardous waste, pollutants and/or contaminants and costs of preparing or causing to be prepared any and all studies; tests, analyses or reports • in connection with any environmental matter; (c) all expenses or obligations, including attorneys' fees, incurred at, before and after any trial or appeal therefrom whether or not taxable as costs; including attorneys' fees, witness fees,. deposition costs and other expenses; (d) all other costs, expenses and liabilities arising from Tenant's violation .-of the laws or any other environmental regulation now: in force or hereafter enacted; and (e) Tenant's disposal of medical waste as set forth in Paragraph A above. The obligations of Tenant as contained in this Section shall survive the termination of the Lease. 25. LANDLORD'S TITI;E. Tenant recognizes and agrees that-Landlord's title is and always will be paramount to tie title of Tenant and under no circumstances shall Tenant do or be empowered to do any dct which can, shall or may encumber Landlord's title or subject the Premises or Building '?r any part of either to any lien or encumbrance. 26. HOLDING OVER. if for any reason Tenant retains possession of the Premises or any part thereof after the termination of the term of.this Lease or any extension of the term, .unless other written arrangements are made with Landlord, such holding over shall constitute a tenancy from month-to-month and Tenant shall pay Landlord monthly rental during the month-to-month tenancy computed at double the rate of 'rent payable hereunder for the final month of the last year of the term prior to such holding over.. -27. NO ACCORD AND SA'TISFACT'ION. No payment by Tenant or receipt by Landlord of a lesser amount than the monthly rent and other charges, nor shall any endorsement or statement on any check or on any letter accompanying any .check be deemed an accord and satisfaction. 29. SUCCESSORS AND ASSIGNS. This Agreement shall be binding upon and inure to the respective parties herein, their heirs, executors, administrators, devisees, successor and permitted assigns Fvhomever. Any reference to Tenant he rein shall, for the purposes l: 19 7 T s?cldlba mr\brandy\Calabrese.lease June 9, 2006 of determining liabilit} for property damage and the like, be deemed to include. Tenant, his or its. agents, :officers; employees, servants, partners, independent contractors, licensees, invitees or vifsitors whomever. RESERVATIONS B i' LANDLORD. In addition to other rights conferred by this 29. Agreement or by law, the Landlord reserves the right, to be exercised in Landlord's sole discretion, to: (a) take all measures as may be necessary or desirable for the safety, protection of the Premises or of the Building; (b) sell or mortgage the Building; (c) repair, alter, add to, improve,:. build additional stones on, or build adjacent to said building; (d) run necessary pipes, conduits and ducts through the Premises; and (e) carry any work, repairs, alterations or dmprovements in, 'on, or about the Building or in the vicinity thereof. Tenant hereby waives any claim-to damage or inconvenience causes by such .work. This paragraph, shall not be construed to diminish the obligations of Tenant with respect to repairs or improvements or.other obligations of Tenant provided herein, nor shall it be construed to create or increase any obligation on the part of Landlord with mprovements. respect to repairs or' 30. ESTOPPEL CERTIFICATE. At any time, and form time to time, the parties agree that within ten (10) days following request in writing from the other party, to execute, a statement in writing certifying that this acknowledge and deliver to the requesting party Lease is unmodified acid in full force and effect (or if there have been modifications that the same is full force, and effect as modified and stating the modification), the dates to which the rent and otlk`er charges have been paid, and any other financial data relating to this Lease or the Leased Premises which such party may reasonably request: 31. FORCE MA.JEURE. In the event either party hereto shall be delayed or hindered in or prevented from the performance of any act required under this Lease by reason of strikes, lockouts, labor troubles, inability to procure materials, failure of power, restrictive governmental law or regulations, riots, insurrection, war or other reason of a like nature not the fault of the party delayed in performing work or doing acts required under the terms of this Lease, then performance of any such act shall be extended for a period equivalent to the period of such delay. The provisions of this Section shall not (a) operate to excuse Tenant from; prompt payment of Annual Minimum Rent or any other payment required by the terms *of this Lease, and (b) be applicable to delays *resulting from the inability of a.party to -obtain financing or to proceed with its obligations under. this Lease because of a lack of faiids. .t 32. ARBITRATION/WAIVER OF JURY TRIAL. Any disagreement between Landlord and Tenant with respect to the interpretation or. application of this Lease, or the obligation of the parties hereunder, shall be determined by arbitration unless the parties otherwise mutually agree in writing. Landlord and Tenant shall agree upon one arbitrator, otherwise there shall be three (3), one named in writing by the Landlord and one named in writing by the Tenant within ten (10) days after notice of arbitration is served by either upon the other, and a third arbitrator selected by those two arbitrators -within ten (10) days 20 s.'il:Adib mrkbrandy\calabrese.le;ise June 9. 20015 thereafter. No one shall serve as an arbitrator who is in any way financially interested in this Lease or in the affairs of either party hereto. This agreement to arbitrate shall be specifically enforceable under.the prevailing arbitration laws.* The arbitrator or arbitrators shall have the power to award to either party to. the dispute such sums, costs, expenses, and attorney's fees as lie arbitrator or arbitrators may deem proper. The award rendered by the arbitrator or arbitrators shall be appealable to a court of competent jurisdiction within thirty (30) days of notice of the arbitrators' award. Such appeal shall be prosecuted without delay and as rapidly as possible. 33. GUARANTY. At the time of executing this Lease, Tenant shall provided to-Landlord a signed Guaranty of Lase including the signature of the spouse, if any, in form and substance as set forth in Exhibit B hereto. Each Guarantor shall provide. Landlord with an annual financial statement upon request. 34. BUSINESS INTERRUPTION. Tenant acknowledges that the nature of Tenant's business involves government .contracting work to which. Tenant relies on. such contracting work as asubstantial source of Tenant's business income: Said contracting work requires that certain qualifications. and terms be met by Tenant in order to obtain and keep said work. In light of this fact, Tenant agrees to provide Landlord written notice within fifteen (15) days of any substantial decrease in Tenant's government contracting work or the change or termination of Tenant's qualifications to the extent that said change or termination will result in loss of said contracting business to Tenant. 35. NON-WAIVER. Thq failure of the Landlord to seek redress for violation of, or to insist upon the strict performance of, any covenant or condition of the Lease, shall not prevent a subsequent act, whichwould have originally constituted a violation, from having all the force and effect of an original violation. The receipt by Landlord of rent with knowledge of the breach of any covenant of this Lease shall not be deemed a waiver of such breach. 36. SHORT FORM LEASE. Tenant agrees that, upon the written request of Landlord, Tenant will, at any tinie, join in the execution of a Memorandum of Lease in proper form for recording or filing in the appropriate office of the County of Cumberland setting forth the existence and term of this Lease; and Tenant shall take such action as may be necessary to permit such recording or filing. 37. MISCELLANEOUS. PROVISIONS.. No act or thing done or omitted to be done by Landlord or Landlord's agents. during the term of the Lease, which is necessary to enforce the terms of this Lease shall constitute an eviction by Landlord nor shall it be deemed an acceptance or surrender of said Premises, and no agreement to accept such surrender shall be valid unless in writing signed by Landlord. No employee of Landlord or Landlord's agent shall. have any power.to accept the keys of said Premises prior to the termination of the Lease. 'The deliv:ry of keys to any employee of Landlord or Landlord's agent shall not operate as a termination of the Lease or a surrender of the Premises. 21 s*\d{b?rsr\brandy\calabrese.lease June 9, 2006 Tenant represents and warrants to Landlord that Tenant has not incurred and will not incur any liability fof brokerage fees, 'finder's fees, agents commissions or • similar compensation to third! parties in connection with this lease transaction. In the event Tenant has incurred any such fees, commissions or compensation, said fees, commissions and compensations incurred shall be charges solely against Tenant. Tenant agrees to indemnify Landlord against and hold Landlord harmless from any and all liabilities arising from any claims for such fee; commissions or compensation, including, without limitations the cost of counsel fees in connection therewith. The words "Landlord". and "Tenant",. wherever used in this Lease; shall be 'construed to mean Landlords and Tenants in allcases where there is more than one landlord or tenant, and the necessary. grammatical changes required to make the provisions hereof apply either to corporations ;.or individuals, men or women, shall in all cases.be assumed as though in each case fully expressed. The invalidity or unerifforceability of any provision hereof shall not affect or impair. any other provision. Wherb Tenant hereunder consists of more than one party, the obligations of each such party willbe joint and several hereunder. Provisions inserted herein or affixed hereto shall not be valid unless appearing in the duplicate original hereof held by the Landlord: In the event of variation or discrepancy, the Landlord's duplicate shall control. The headings of the several articles, paragraphs and sections contained herein are for convenience. only and do not define, limit or construe 'the contents of ' such articles, paragraphs .and sections. All negotiations; considerations, representations and understandings between the parties are incorporated herein and are superseded hereby, and the provisions hereof may be modified or altered only by agreement in writing between the parties.. There are no terms, obligations, covenants, statements, representations, warranties or conditions relating to the subject matters hereof other than those specifically contained herein. This Lease may not be amended or modified by any act or conduct of the parties or by oral agreements unless reduced and agreed to in writing signed by both Landlord and Tenant. No waiver of any of the terms of this Lease by Landlord shall be binding on Landlord unless reduced to. writing and signed by Landlord. Nothing contained-in this Lease shallbe construed to be or to create a partnership or joint venture between the parties hereto. This Lease shall be .;governed by and enforced in accordance with the laws of the Cbmmonwealth of Pennsylvania. This Lease represents the entire understanding and agreement of the parties and the terms and provisions of this Lease shall only be modified or amended in writing signed by all parties hereto. 22 it edit6rkbrandy\calabrese.lease June 9. 2006 IN WITNESS WHEREOF, the parties intending to be legally • bound have set their hands and seals the day and year first above written. WITNESS: LANDLORD : r BRANDY INVESTOR, L.P. By:.Bra y Mechanicsburg, LLC Ge ri e aOer By. -t William F. othm n, Managing Member ATTEST: TENANT: CALABRESE & SONS, INC. By:? ;J r President 23 y EXHIBIT A ALL-THAT CERTAIN piece or parcel of land, situate, lying and being in Mechanicsburg Borough, Cumberland County shown as New Lot 2 on the Calabrese & Sons, Inc. Preliminary/Final Subdivision/Lot Consolidation Plan Recorded-April 3, 2006 in the Cumberland County. Recorder of Deeds Office in Plan Book 92 Page 44 to wit: BEGINNING at a point:on the southern side of Brandy Lane at.a 518 inch rebar with cap thence South 27 degrees 04 minutes 00 seconds East a distance of 376.89 feet to a point thence North 37 degrees 14 minutes 52 seconds East a distance of 509.19 feet to a point thence North 37 degrees 05 minutes 01 seconds East. a distance of 66.58 feet to a point thence South 42 degrees '05 minutes 07 seconds East a distance of 179.93 feet to a point thence South 24 degrees 27 minutes 41 seconds East a distance of 490.52 feet to a point thence South 65.degrees 27 minutes 00 seconds West a distance of 593.70 feet to a point thence North 27 degrees 04 minutes 00 seconds West a distance of 744,09 feet to a point thence North 40 degrees 20 minutes 30 seconds East a distance of 54.16 feet to a point and place of BEGINNING. ii4l blrsrlbrandylcatabrese.lease Jane 9, 2006 EXHIBIT B PERSONAL GUARANTY OF LEASE . In consideration of the 'making of the above Lease, dated June 9, 2006, by the Tenant with the Landlord at the request of the undersigned, and in reliance of this Guaranty, the undersigned hereby unconditionally and irrevocably guarantees- the payment of the rent to. be paid by the Tenant and the performance by the Tenant of all the terms, conditions, covenants and agreements of the Lease, and the undersigned promises to .pay all the Landlord's expenses, including reasonable attorney's fees, incurred by the -Landlord in enforcing this Guaranty. The Landlord's consent -to any assignment or assignments, and successive assignments by the Tenant and Tenant's assigns, of this Lease, made either with or without notice to -the undersigned, or a changed or different use of the' demised premises, or Landlord's forbearance delays, ektensions of time or any other reason whether similar to 'or different' from the foregoing, shall in no way or manner release the undersigned from liability as Guarantor. Where the undersigned include more than one party, the obligation of each such party hereunder will be joint and several. It will not be necessary for Landlord to-proceed first against Tenant in invoking any of Landlord's lease remedies before proceeding to. enforce this Guaranty of Lease. WITNESS the hand and seal of the undersigned at the date of the above Lease. GUARANTOR: o eph Calabrese ' 25 U I` Theodore A. Adler' Susan H. Confair U 3 David W. Reager Linus E. Fenicle John H. Pietrzak Wayne S. Martin, P.E." . ATTORNEYS AND COUNSELORS AT LAW YEARS Thomas O. Williams Neely E. Meals Peter R. Wilson Richard J. Joyce"" 'Certified Civil Trial Specialist ..Licensed to Pracdoe in N.J. -Of Counsel 2009 41 July 2 writer's Email address: Adl com PC , e JPietrzak@Reager . r Via Certified Mail, Return Receipt Req. Via Certified Mail; Return Receipt Reg- Joseph Calabrese David A. Fitzsimons, Esq. Calabrese & Sons, Inc. AND Manson Law Offices 406 Brandv Lane Ten East HighStreet Mechanicsburg, PA 17055 Carlisle, PA 11013 Re: Notice of Default of Lease dated June 9, 2006 Our file No. 07-554.000 Dear Mr. Calabrese: This letter shall constitute formal Notice that Calabrese & Sons, Inc. is in violation of its Lease Agreement with Brandy Investors, LP dated June 9, 2006 for the leased premises located at 406 Brandy Lane, Mechanicsburg, PA 17055, for failure to pay rent in the amount of $24,523.34 for both February and June 2000. Late fees of 5% have been assessed in the amount of $1,226.17 per month. Calabrese is also in continuing violation of the Lease Agreement for failure to pay taxes and insurance as follows: 2008 School Taxes: $33,789.53 2009 County & Boro taxes: $13,455.32 2008 Erie Insurance: $4,575.00 .2009 Erie Insurance: $5,274.00 The total principal amount of the above-listed amounts is $106,140.53, plus $2,452.34 in late fees. Interesi has accrued at the annual rate of 12% on the principal amounts, which totals $5,186.88 as of July 1, 2009, and continues to accrue in the amount of $34.89 per day. The amounts listed above are in addition to other past defaults, which remain uncured. In compliance with its duties under the Lease Agreement, Brandy Investors hereby provides notice that it intends to pursue any and all remedies under the Lease Agreement, without further notice, if Calabrese & Sons, Inc. doestot pay the above amounts within fifteen days of receipt of this letter. Please contact me to make payment arrangements. Thank you. V Truly. Yours, John H. Pietrzak JHP/j is cc: Brandy Investors, LP A N E N D U R I N G P A R T N E R S H I P 2331 Market Street, Camp Hill, Pennsylvania 17011-4642 T: 717 763-1383 F: 717 730-7366 www.reageradierpc.com Postal CERTIFIED MAIL, RECEIPT m •Wornestic Mail Only; No Insurance Coverage Provided) a ? •ii ]? ?+ 4 ^:. A I tT' - p Postage S I rl , CenRWFee K ,`amy:y SCi S }, `'? estACtedoiPoeryFeep (Endorsement RegWred) i o ? • ' OY-0212009 ru p Total Postage 8 Fees I $ 'S '6Y S E3r --Ccs? ab??, o ....._..__ Qi11L?? ---- r- orFO,BcxtVo. to Bran .?- Iro55 N DELIVERY r`leerfvi B. Date of Delivery item ,4 rr atu ¦ Print your name and address on the Q Agent reverse dressee -so lbat.We can return the card to you. Ad ` i Attach this card to the back of the madpiece, Yes or on the front if space permits. D s delivery address different from item 1? No ? ? If YES, enter delivery addressbeiow.' i 1. Art idle Addressed to: PG PA 1 TO J seph Ca?abres? Flo 80ic %6? 7m? ss I ? Sons?lr,t. ? q r n "{ 3. Service Type Certified aii Q Ex a. M J n ?( A ti11 CS b UrC r Q Registered Q Retum-Receipt for Met ise ? Insured Mail [3 C.O.D. 4. Restricted Delivery? ptra Fee) ? Yes Y O'n - _ - -` p?01 1092 4293 I ^ 2. Art ` ° ?013? 3 0t a Domestic Return Receipt 102595-00-M-0952 PS Form 3811, July 1999 + A. J VERIFICATION I, Jack Jurasits, hereby verify that I am a Partner in Brandy Investors, LP, and, as such, I am authorized to verify the averments of the foregoing document are true and correct to my personal knowledge, information and belief. I understand that false statements herein are made subject to the penalties of 18 Pa. C.S. §4904, relating to unworn falsification to authorities. Date: 200 By: 01?01/ J c its ra 6. VERIFICATION I, William Rothman, hereby verify that I am a Partner in Brandy Investors, LP, and, as such, I am authorized to verify the averments of the foregoing document are true and correct to my personal knowledge, information and belief. I understand that false statements herein are made subject to the penalties of 18 Pa. C. S. §4904, relating to unsworn falsification to authorities. Date: By: William othman OF T 2pul ,pia? L? T 1 $al , 50 PQ ATrl CO aiA 9.2 pa+olas335 REAGER & ADLER, P.C. BY:JOHN H. PIETRZAK, ESQUIRE Attorney I.D. No. 79538 Email: Jpietrzak(a),ReagerAdlerPC.com BY: THOMAS O. WILLIAMS, ESQUIRE Attorney I.D. No. 67987 Email: TwilliamsgReagerAdlerPC.com 2331 Market Street Camp Hill, PA 17011 Telephone: (717) 763-1383 Facsimile: (717) 730-7366 Attorneys for Brandy Investors, LP BRANDY INVESTORS, LP, IN THE COURT OF COMMON PLEAS, Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA V. : CIVIL ACTION CALABRESE & SONS, INC. and, : NO. OH -'4qq q JOSEPH CALABRESE, Defendants : CONFESSION OF JUDGMENT ENTRY OF APPEARANCE TO THE PROTHONOTARY: Enter my appearance for the above-named Defendants pursuant to the Warrant of Attorney contained in the Lease agreement between the parties, attached hereto. Respectfully submitted, REAGER & ADLER, P.C. Date: July 22, 2009 H. Pietrzak, E ire 0 A ?2 E1kED--&? `E OF THE ' 0j7 '' ;NJIOTARY 2009 JUL 22 Pty 3: 11 CUME, NSYLVANIV, BRANDY INVESTORS, LP, Plaintiff V. CALABRESE & SONS, INC. and, JOSEPH CALABRESE, Defendants IN THE COURT OF COMMON PLEAS, CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION NO. CA - HQ77 C Y-t l -et % : CONFESSION OF JUDGMENT NOTICE UNDER RULE 2958.1 OF JUDGMENT AND EXECUTION THEREON NOTICE OF DEFENDANTS' RIGHTS TO: Calabrese & Sons, Inc. A judgment in the amount of $125,924.86 has been entered against you and in favor of the Plaintiff without any prior notice or hearing based on a confession of judgment contained in a written agreement or other paper already signed by you. The Sheriff may take your money or other property to pay the judgment at any time after thirty (30) days after the date on which this notice is served on you. You may have legal rights to defeat the judgment or to prevent your money or property from being taken. YOU MUST FILE A PETITION SEEKING RELIEF FROM THE JUDGMENT AND PRESENT IT TO A JUDGE WITHIN THIRTY (30) DAYS AFTER THE DATE ON WHICH THIS NOTICE IS SERVED ON YOU OR YOU MAY LOSE YOUR RIGHTS. YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER OR CANNOT AFFORD ONE, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW TO FIND OUT WHERE YOU CAN GET LEGAL HELP. Lawyer Referral Service Cumberland County Courthouse, 0 Floor Carlisle, PA 17013 (717) 240-6200 Date: July 22, 2009 ohn H. Pizz ak, E uire REAGER ADL R , P.C. 2331 Market Street Camp Hill, PA 17011 (717) 763-1383 Attorneys for Plaintiff, Brandy Investors, LP FILET , HON OTARY OF THE P, , 2009 JUL 22 PM 3. 12 } t 4p i OIJINTY PEN'-iV& UA';\l, BRANDY INVESTORS, LP, Plaintiff V. CALABRESE & SONS, INC. and, JOSEPH CALABRESE, Defendants IN THE COURT OF COMMON PLEAS, CUMBERLAND COUNTY, PENNSYLVANIA : CIVIL ACTION . NO. CR - y9 77 Cwt' t-Fuw : CONFESSION OF JUDGMENT NOTICE UNDER RULE 2958.1 OF JUDGMENT AND EXECUTION THEREON NOTICE OF DEFENDANTS' RIGHTS TO: Joseph Calabrese A judgment in the amount of $125,924.86 has been entered against you and in favor of the Plaintiff without any prior notice or hearing based on a confession of judgment contained in a written agreement or other paper already signed by you. The Sheriff may take your money or other property to pay the judgment at any time after thirty (30) days after the date on which this notice is served on you. You may have legal rights to defeat the judgment or to prevent your money or property from being taken. YOU MUST FILE A PETITION SEEKING RELIEF FROM THE JUDGMENT AND PRESENT IT TO A JUDGE WITHIN THIRTY (30) DAYS AFTER THE DATE ON WHICH THIS NOTICE IS SERVED ON YOU OR YOU MAY LOSE YOUR RIGHTS. YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER OR CANNOT AFFORD ONE, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW TO FIND OUT WHERE YOU CAN GET LEGAL HELP. Lawyer Referral Service Cumberland County Courthouse, 4`h Floor Carlisle, PA 17013 (717) 240-6200 Date: July 22, 2009 H. Pietrzak, E uire AGER & ADLER, P.C. 2331 Market Street Camp Hill, PA 17011 (717) 763-1383 Attorneys for Plaintiff, Brandy Investors, LP OF 74S ;,r:-;'-NOTARY 2009 JUL 22 PH 3: ? Z CUP,4 LJ?>>,Jfl - . REAGER & ADLER, P.C. BY:JOHN H. PIETRZAK, ESQUIRE Attorney I.D. No. 79538 Email: Jpietrzak@ReagerAdlerPC.com BY: THOMAS O. WILLIAMS, ESQUIRE Attorney I.D. No. 67987 Email: TwilliamskReagerAdlerPC.com 2331 Market Street Camp Hill, PA 17011 Telephone: (717) 763-1383 Facsimile: (717) 730-7366 Attorneys for Brandy Investors, LP BRANDY INVESTORS, LP, Plaintiff V. CALABRESE & SONS, INC. and, JOSEPH CALABRESE, Defendants IN THE COURT OF COMMON PLEAS, CUMBERLAND COUNTY, PENNSYLVANIA : CIVIL ACTION NO. Cq- yg17 (.?vit?Fe'% CONFESSION OF JUDGMENT NOTICE UNDER RULE 2737.1 OF RIGHT TO RECOVER ATTORNEY FEES AND COSTS AND PROCEDURE TO FOLLOW TO STRICK OFF OR OPEN A CONFESSED JUDGMENT TO: Calabrese & Sons, Inc. Pursuant to 42 Pa.C.S.A. 2737.1, you are hereby notified that a debtor who has been incorrectly identified and had a confession of judgment entered against him shall be entitled to costs and reasonable attorney fees as determined by the court. Pursuant to 42 Pa.C.S.A. § 2737.1, you are hereby notified of the instructions regarding the procedure to follow to strike off or open a confessed judgment under Pennsylvania Rule of Civil Procedure 2959, which is reproduced in full, on the following page. REAGER & ADLER, P.C. Date: July 22, 2009 /?? 4i?s H. Pietrzak, Esquire 2131 Market Street Camp Hill, PA 17011 (717) 763-1383 .7 PENNSYLVANIA RULE OF CIVIL PROCEDURE 2959 STRIKING OFF OR OPENING JUDGMENT; PLEADINGS AND PROCEDURE (a)(1) Relief from a judgment by confession shall be sought by petition. Except as provided in subparagraph (2), all grounds for relief whether to strike off the judgment or to open it must be asserted in a single petition. The petition may be filed in the county in which the judgment was originally entered, in any county to which the judgment has been transferred or in any other county in which the sheriff has received a writ of execution directed to the sheriff to enforce the judgment. (2) The ground that the waiver of the due process rights of notice and hearing was not voluntary, intelligent and knowing shall be raised only (i) in support of a further request for a stay of execution where the court has not stayed execution despite the timely filing of a petition for relief from the judgment and the presentation of prima facie evidence of a defense; and (ii) as provided by Rule 2958.3 or Rule 2973.3. (3) If a written notice is served upon the petitioner pursuant to Rule 2959.1(c)(2) or Rule 2973.1(c), then petition shall be filed within thirty days after such service. Unless the defendant can demonstrate that there were compelling reasons for the delay, a petition not timely filed shall be denied. (b) If the petition states prima facie grounds for relief, the court shall issue a rule to show cause and may grant a stay of proceedings. After being served with a copy of the petition the plaintiff shall file an answer on or before the return day of the rule. The return day of the rule shall be fixed by the court by local rule or special order. (c) A party waives all defenses and objections which are not included in the petition or answer. (d) The petition and the rule to show cause and the answer shall be served as provided in Rule 440. (e) the court shall dispose of the rule on petition and answer, and on any testimony, depositions, admissions and other evidence. The court for cause shown may stay proceedings on the petition insofar as it seeks to open the judgment pending disposition of the application to strike off the judgment. If evidence is produced which in a jury trial would require the issues to be submitted to the jury, the court shall open the judgment. (f) The lien of the judgment of or any levy or attachment shall be preserved while the proceedings to strike off or open the judgment are pending. FILE'' OF THE "C"""OTARY 2009 All 22 PH 3: 12 REAGER & ADLER, P.C. BY:JOHN H. PIETRZAK, ESQUIRE Attorney I.D. No. 79538 Email: Jpietrzakaa ReagerAdlerPC.com BY: THOMAS O. WILLIAMS, ESQUIRE Attorney I.D. No. 67987 Email: Twilliams@ReagerAdlerPC.com 2331 Market Street Camp Hill, PA 17011 Telephone: (717) 763-1383 Facsimile: (717) 730-7366 Attorneys for Brandy Investors, LP BRANDY INVESTORS, LP, IN THE COURT OF COMMON PLEAS, Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA V. CIVIL ACTION CALABRESE & SONS, INC. and, NO. CA - L1g77 Civ i t Teo t-w,? JOSEPH CALABRESE, Defendants : CONFESSION OF JUDGMENT NOTICE UNDER RULE 2737.1 OF RIGHT TO RECOVER ATTORNEY FEES AND COSTS AND PROCEDURE TO FOLLOW TO STRICK OFF OR OPEN A CONFESSED JUDGMENT TO: Joseph Calabrese Pursuant to 42 Pa.C.S.A. 2737. 1, you are hereby notified that a debtor who has been incorrectly identified and had a confession of judgment entered against him shall be entitled to costs and reasonable attorney fees as determined by the court. Pursuant to 42 Pa.C.S.A. § 2737.1, you are hereby notified of the instructions regarding the procedure to follow to strike off or open a confessed judgment under Pennsylvania Rule of Civil Procedure 2959, which is reproduced in full, on the following page. Date: July 22, 2009 REAGER & ADLER, P.C. J H. Pietrzak, Esquire 331 Market Street Camp Hill, PA 17011 (717) 763-1383 PENNSYLVANIA RULE OF CIVIL PROCEDURE 2959 STRIKING OFF OR OPENING JUDGMENT; PLEADINGS AND PROCEDURE (a)(1) Relief from a judgment by confession shall be sought by petition. Except as provided in subparagraph (2), all grounds for relief whether to strike off the judgment or to open it must be asserted in a single petition. The petition may be filed in the county in which the judgment was originally entered, in any county to which the judgment has been transferred or in any other county in which the sheriff has received a writ of execution directed to the sheriff to enforce the judgment. (2) The ground that the waiver of the due process rights of notice and hearing was not voluntary, intelligent and knowing shall be raised only (i) in support of a further request for a stay of execution where the court has not stayed execution despite the timely filing of a petition for relief from the judgment and the presentation of prima facie evidence of a defense; and (ii) as provided by Rule 2958.3 or Rule 2973.3. (3) If a written notice is served upon the petitioner pursuant to Rule 2959.1(c)(2) or Rule 2973.1(c), then petition shall be filed within thirty days after such service. Unless the defendant can demonstrate that there were compelling reasons for the delay, a petition not timely filed shall be denied. (b) If the petition states prima facie grounds for relief, the court shall issue a rule to show cause and may grant a stay of proceedings. After being served with a copy of the petition the plaintiff shall file an answer on or before the return day of the rule. The return day of the rule shall be fixed by the court by local rule or special order. (c) A party waives all defenses and objections which are not included in the petition or answer. (d) The petition and the rule to show cause and the answer shall be served as provided in Rule 440. (e) the court shall dispose of the rule on petition and answer, and on any testimony, depositions, admissions and other evidence. The court for cause shown may stay proceedings on the petition insofar as it seeks to open the judgment pending disposition of the application to strike off the judgment. If evidence is produced which in a jury trial would require the issues to be submitted to the jury, the court shall open the judgment. (f) The lien of the judgment of or any levy or attachment shall be preserved while the proceedings to strike off or open the judgment are pending. FIILEU_."-' OF THE FrKir`?^ ?OTAgy 2009 JUL 22 PM 3: 12 'd CUMB, PENNSYLVANIA REAGER & ADLER, P.C. BY:JOHN H. PIETRZAK, ESQUIRE Attorney I.D. No. 79538 Email: Jj2ietrzakaa,ReagerAdlerPC.com BY: THOMAS O. WILLIAMS, ESQUIRE Attorney I.D. No. 67987 Email: Twilliams@ReagerAdlerPC.com 2331 Market Street Camp Hill, PA 17011 Telephone: (717) 763-1383 Facsimile: (717) 730-7366 Attorneys for Brandy Investors, LP BRANDY INVESTORS, LP, IN THE COURT OF COMMON PLEAS, Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA V. : CIVIL ACTION CALABRESE & SONS, INC. and, NO. 09- L4g77 0'i"a (pr"M, JOSEPH CALABRESE, Defendants : CONFESSION OF JUDGMENT AFFIDAVIT OF NON-MILITARY SERVICE Commonwealth of Pennsylvania ) ) ss: County of Cumberland ) The undersigned, being duly sworn according to law, deposes and says that the Defendant(s) is/are not in the Military or Naval Service of the United States or Allies, or otherwise within the provisions of the Soldiers' and Sailors' Civil Relief Act of Congress of 1940, as amended: Sworn to and subscribed ore me this al -7 day of 2009. Notary Public COMMONWEALTH OF PENNSYLVANIA Notarial Seal Susanne K. Sather, Notary Public Camp Hill Boro, Cumberland County [My Commission Expires Aug. 25, 2009 hn H. Pietrzak, Esquire Member, Pennsylvania Association of Notaries FILED--01-Fl: E OF THE RPO ?a IONOTNRY 2009 JUL 22 P J' 12 CUft "S t a SUE 1 4 PE???'tiSY%V?;tfIA REAGER & ADLER, P.C. BY:JOHN H. PIETRZAK, ESQUIRE Attorney I.D. No. 79538 Email: Jpietrzak ,ReajerAdlerPC.com BY: THOMAS O. WILLIAMS, ESQUIRE Attorney I.D. No. 67987 Email: Twilliams(cbReagerAdlerPC.com 2331 Market Street Camp Hill, PA 17011 Telephone: (717) 763-1383 Facsimile: (717) 730-7366 Attorneys for Brandy Investors, LP BRANDY INVESTORS, LP, Plaintiff IN THE COURT OF COMMON PLEAS, CUMBERLAND COUNTY, PENNSYLVANIA : CIVIL ACTION V. CALABRESE & SONS, INC., and JOSEPH CALABRESE, NO. 09 -4g77 0 *iv'lTem Defendants : CONFESSION OF JUDGMENT AFFIDAVIT THAT JUDGMENT IS NOT BEING ENTERED BY CONFESSION OF JUDGMENT AGAINST A NATURAL PERSON IN CONNECTION WITH A CONSUMER CREDIT TRANSACTION Commonwealth of Pennsylvania ) ) ss: County of Cumberland ) I, John H. Pietrzak, being duly sworn according to law, hereby state that the judgment being entered by confession is not being entered against a natural person in connection with a consumer credit transaction. ;on H. Pietrzak, Esquire Sworn to and subscgribed efore me this 6PI day of ----92009. -c.Q Cc?lt?ic.? Notary Public COMfdIONWEAL H OF PENNSYLVANIA Notarial Seal Susanne K. Sather, Notary Public Camp Hill Boro, Cumberland County My Commission Expires Aug. 25, oma Member, Pennsylvania Association of Notaries FILED--O''Fil"E OF R ;E PRO ? r;""!,? ??TARY 2009 ,JUL 22 PM 3: {2 PEN SYLV' NIA REAGER & ADLER, P.C. BY:JOHN H. PIETRZAK, ESQUIRE Attorney I.D. No. 79538 Email: Jpietrzak6EWeagerAdlerPC.com BY: THOMAS O. WILLIAMS, ESQUIRE Attorney I.D. No. 67987 Email: Twilliams(&Rea>?erAdlerPC.co_m_ 2331 Market Street Camp Hill, PA 17011 Telephone: (717) 763-1383 Facsimile: (717) 730-7366 Attorneys for Brand?Investors LP BRANDY INVESTORS, LP, IN THE COURT OF COMMON PLEAS, Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA V. : CIVIL ACTION CALABRESE & SONS, INC. and, : NO. Cq - Ln11 C(,jicTerv, JOSEPH CALABRESE, Defendants : CONFESSION OF JUDGMENT CERTIFICATION OF ADDRESSES I, John H. Pietrzak, Esquire of Reager & Adler PC, Attorney for Plaintiff Brandy Investors, LP hereby certify that Plaintiff Brandy Investors, LP's correct address is c/o RSR Realtors, 3 Lemoyne Drive, Suite 100, Lemoyne, Pennsylvania 17043 and that the correct address for Defendant Calabrese & Sons, Inc. is 406 Brandy Lane, Mechanicsburg, Pennsylvania, 17055.1 also hereby certify that the correct address for Defendant Joseph Calabrese is also 406 Brandy Lane, Mechanicsburg, Pennsylvania, 17055. I certify that the foregoing information is true and correct to the best of my knowledge, information, and belief. REAGER & ADLER, PC Sworn to and Subscribed before me this "day of 2009. No Public By: H. Pietrz COMMONWEALTH OF PENNSYLVANIA Notaria Seal Linda H. Miller, Notary Public Camp Hill Bon), Cumberland County My Commission Expires May 9, 2013 Member, Pennsylvania Association of Notaries OF THE P T?'?n!?^,TARY 2009 JUL 22 PM 3: 12 cum PE, L N', PC ,l vS''LVANEA REAGER & ADLER, P.C. BY:JOHN H. PIETRZAK, ESQUIRE Attorney I.D. No. 79538 Email: Jnietrzaka.ReagerAdlerPC com BY: THOMAS O. WILLIAMS, ESQUIRE Attorney I.D. No. 67987 Email: TwilliamsAReagerAdlerPC com 2331 Market Street Camp Hill, PA 17011 Telephone: (717) 763-1383 Facsimile: (717) 730-7366 Attorneys for Brandy Investors LP BRANDY INVESTORS, LP, IN THE COURT OF COMMON PLEAS, Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA V. CIVIL ACTION CALABRESE & SONS, INC. and, : NO. CYO - 4q-n JOSEPH CALABRESE, Defendants : CONFESSION OF JUDGMENT NOTICE Pursuant to Rule 236 of the Supreme Court of Pennsylvania, you are hereby notified that a JUDGMENT BY CONFESSION has been entered against you in the above proceeding and that enclosed herewith is a copy of all of the documents filed in support of said judgment. If you have any questions concerning this notice, please call John H. Pietrzak at (717) 763-1383. s r thonotary o?g 7/44/07 Sheriffs Office of Cumberland County R Thomas Kline Sheri Ronny R Anderson Chief Deputy Jody S Smith Civil Process Sergeant Edward L Schorpp Solicitor ?$?ntr of ?[ud?bPr???? OFF,cE OF 'HE S"ERIFF f=1CFE- 1-i = C= OFTH 2009 JUL 30 AN 10* 32 CLi1 t 1.!`ti tY Brandy Investors, LP vs. Calabrese & Sons, Inc. Case Number 2009-4977 SHERIFF'S RETURN OF SERVICE 07/28/2009 10:40 AM - Jody Smith, Sergeant, who being duly sworn according to law, states that on July 27, 2009 at 1040 hours, she served a true copy of the within Confession of Judgment and Complaint in Confession of Judgment, upon the within named defendant, to wit: Calabrese & Sons, Inc., by making known unto Joseph Calabrese, President at 1 Courthouse Square Room 303 Carlisle, Cumberland County, Pennsylvania 17013 its contents and at the same time handing to him personally the said true and correct copy of the same. 07/28/2009 10:40 AM - Jody Smith, Sergeant, who being duly sworn according to law, states that on July 27, 2009 at 1040 hours, she served a true copy of the within Confession of Judgment and Complaint in Confession of Judgment, upon the within named defendant, to wit: Joseph Calabrese, by making known unto himself personally, defendant at 1 Courthouse Square Room 303 Carlisle, Cumberland County, Pennsylvania 17013 its contents and at the same time handing to him personally the said true and correct copy of the same. SHERIFF COST: $44.44 July 28, 2009 SO ANSWERS, R THOMAS KLINE, SHERIFF \Ja Deputy S -riff F:\ FILES\Clients\l t093 Calabrese\l 1093.2.pet5.wpd Seth T. Mosebey, Esquire I.D. No. 203046 David A. Fitzsimons, Esquire I.D. No. 41722 MARTSON DEARDORFF WILLIAMS OTTO GILROY & FALLER MARTSON LAW OFFICES 10 East High Street Carlisle, PA 17013 (717) 243-3341 Attorneys for Defendants BRANDY INVESTORS, LP, Respondent/Plaintiff V. CALABRESE & SONS, INC., and JOSEPH CALABRESE, P etitioners/Defendants IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA : NO. 09-4977 : CIVIL ACTION - LAW PETITION FOR RELIEF FROM CONFESSION OF JUDGMENT AND NOW, come the Defendants, Calabrese & Sons, Inc. and Joseph Calabrese, by and through their attorneys, MARTSON DEARDORFF WILLIAMS OTTO GILROY & FALLER, and file the following Petition for Relief from Confession of Judgment: 1. Petitioner Calabrese & Sons, Inc. is a Pennsylvania corporation located at 406 Brandy Lane, Mechanicsburg, Cumberland County, Pennsylvania. 2. Petitioner Joseph Calabrese is an adult individual residing at 25 Devonshire Square, Mechanicsburg, Cumberland County, Pennsylvania. 3. Respondent Brandy Investors, LP is a Pennsylvania limited partnership with a mailing address of c/o RSR Realtors, 3 Lemoyne Drive, Suite 100, Lemoyne, Pennsylvania. 4. On July 22, 2009, Respondent filed a Confession of Judgment in the amount of $125,924.86 against Petitioners. On June 9, 2006, the parties entered into a Commercial Lease Agreement ("Lease"), a copy of which is attached to Respondent's Complaint. 6. Pursuant to Paragraph 3 of the Lease, Petitioners were required to provide Respondent with a credit of three months base rent in the amount of $70,025.00 to be held by Respondent in escrow. 7. Petitioners provided Respondent with a credit of $70,025.00 to be held in escrow. 8. Pursuant to Paragraph 7 of the Lease, if Petitioners failed to make any payments due under the Lease, then Respondent was permitted to use the credit paid by Petitioners for the payment of any sum in default. 9. Respondent has failed to utilize the credit to satisfy Petitioners' default. 10. Pursuant to Paragraph 4 of the Lease, Respondent is required to provide Petitioners with written notice of the amount of the real estate taxes, together with a copy of the tax bill, and Petitioners are required to pay the amount of the real estate taxes to Respondent within thirty (30) days of the face amount period. 11. The discount period for the county/borough taxes runs from March 1 S` through April 30'. 12. By Respondent's own admission, Respondent paid the 2009 county/borough taxes on March 31, 2009. 13. Respondent failed to adhere by the terms of the Lease by paying the 2009 county/borough taxes in the discount period. 14. Pennsylvania Rule of Civil Procedure 2959 authorizes Petitioners to either strike or open the confession of judgment. 15. "A petition to strike a judgment may be granted only for a fatal defect or irregularity appearing on the face of the record." Resolution Trust Corp. v Copley Qu-Wayne Associates, 683 A.2d 269, 273 (Pa. 1996). 16. "Generally, such clearly established defects justifying a motion to strike arise when the judgment entered is for a grossly excessive amount or includes recovery for items that were not permitted in the contract authorizing a confession of judgment." J.F. Realty Co. v Yerkes, 398 A.2d 215, 217 (Pa. Super. 1979). 17. A court acting in equity should open a confessed judgment "only when the petitioner `acts promptly, alleges a meritorious defense and presents sufficient evidence of that defense to require submission of the issues to the jury."' Id. (quoting First Seneca Bank & Trust Co. v. Laurel Mountain Development Corte , 485 A.2d 1086, 1088 (Pa. 1984).) 18. In this case, the confession of judgment should be stricken because Respondent failed to follow the procedure outlined in the Lease for the payment of the 2009 county and borough taxes. 19. The 2009 countylborough taxes were not yet due and in fact, were in the discount period when Respondent paid them. 20. Because the real estate taxes were not yet due, Respondent violated the terms of the Lease. 21. Because Respondent entered a confession of judgment without complying with the terms of the Lease, the confession of judgment contains a fatal defect, and the judgment should be stricken. 22. In the alternative, the confession of judgment should be opened because Respondent included improper amounts in the confession of judgment. 23. Respondent included the discount rate for the county and borough taxes even though the Lease does not provide for the payment of the discount rate. 24. Respondent's confession of judgment also fails to credit Petitioners for their security payment of $70,025.00 which Respondent is currently holding in escrow. 25. Respondent's failure to use the escrowed funds to reduce the Petitioner's alleged default is particularly curious in light of the fact that its legal counsel has previously utilized Petitioner's escrowed funds from an unrelated transaction to satisfy costs in Respondent's previous suit against Petitioner. 26. No judge has ruled on an issue in this matter. WHEREFORE, Petitioners respectfully request that this Honorable Court issue a stay of the proceedings in this matter and issue a Rule to Show Cause why the judgment in this matter should not be stricken, or in the alternative, opened. MARTSON LAW OFFICES By ?, c J Seth T. Mosebey, Esq ' e I.D. No. 203046 David A. Fitzsimons, Esquire I.D. No. 41722 10 East High Street Carlisle, PA 17013 (717) 243-3341 Attorneys for Defendants Date: August 20, 2009 VERIFICATION I, Joseph Calabrese, President of Calabrese & Sons, Inc., hereby verify that I am authorized to sign this Verification and have reviewed the foregoing document and to the extent that the foregoing document contains facts supplied by or known to me, they are true and correct to the best of my knowledge, information and belief. I understand that false statements made herein are subject to the penalties of 18 Pa.C.S.A. ~4904, relating to u.ilsworn falsification to authorities. Calabrese & Sons, Inc. Jn eph C?labrese f:`.FILFS-,Cheav?.I Iw)! C"Ll6rr;c'.f 1493 ' i r16.W:pxj CERTIFICATE OF SERVICE I, Mary M. Price, an authorized agent for Martson Law Offices, hereby certify that a copy of the foregoing Defendants' Petition for Relief from Confession of Judgment was served this date by depositing same in the Post Office at Carlisle, PA, first class mail, postage prepaid, addressed as follows: John H. Pietrzak, Esquire Reager & Adler, P.C. 2331 Market Street Camp Hill, PA 17011 (717) 763-1383 Attorney for Plaintiff MARTSON LAW OFFICES By: a . Price Ten ast High Street Carlisle, PA 17013 (717) 243-3341 Dated: /Zz/()? Y a F LET! Z?u? AUJ c'!? } ' t: J ^f ' t BRANDY INVESTORS, LP, IN THE COURT OF COMMON PLEAS OF Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA V. CIVIL ACTION - LAW CALABRESE & SONS, INC., and JOSEPH CALABRESE, Defendants NO. 09-4977 CIVIL TERM IN RE: DEFENDANTS' PETITION FOR RELIEF FROM CONFESSION OF JUDGMENT ORDER OF COURT AND NOW, this 24 h day of August, 2009, upon consideration of Defendants' Petition for Relief from Confession of Judgment, it is ordered that: 1. A Rule is issued upon Plaintiff to show cause why Defendants are not entitled to the relief requested; 2. Defendant shall file an answer to the motion within 21 days of the date of this order; 3. The petition shall be decided under Pa. R.C.P. 206.7; 4. Depositions shall be completed within 49 days of the date of this order; 5. Argument shall be held on Wednesday, November 4, 2009, at 1:30 p.m., in Courtroom No. 1, Cumberland County Courthouse, Carlisle, Pennsylvania. 6. Briefs shall be submitted at least seven days prior to argument. 7. Defendant's request for a supersedeas is granted, conditioned upon Defendants' posting of a bond with corporate security acceptable to the court, or cash, in the amount of $75,000.00 within 20 days of the date of this order. -I' John H. Pietrzak, Esq. 2331 Market Street Camp Hill, PA 17011 Attorney for Plaintiff ,/Seth T. Mosebey, Esq. David A. Fitzsimons, Esq. 10 East High Street Carlisle, PA 17013 Attorneys for Defendants cop L£S ? l?l. I BY THE COURT, FILf0-s 3 F i( E OF THE P,=<t', !C NOTARY 2009 AUG 24 Phi 1:57 FAFILESTlients\11093 Calabrese\l l093.2.mot2.wpd Seth T. Mosebey, Esquire I.D. No. 203046 David A. Fitzsimons, Esquire I.D. No. 41722 MARTSON DEARDORFF WILLIAMS OTTO GILROY & FALLER MARTSON LAW OFFICES 10 East High Street Carlisle, PA 17013 (717) 243-3341 Attorneys for Defendants BRANDY INVESTORS, LP, Respondent/Plaintiff V. CALABRESE & SONS, INC., and JOSEPH CALABRESE, Movants/Defendants IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA : NO. 09-4977 : CIVIL ACTION - LAW MOTION FOR RECONSIDERATION OR CLARIFICATION OF SECURITY AND NOW, come the Defendants, Calabrese & Sons, Inc., and Joseph Calabrese, by and through their attorneys, MARTSON DEARDORFF WILLIAMS OTTO GILROY & FALLER, and file the following Motion for Reconsideration or Clarification of Security: 1. Movant Calabrese & Sons, Inc. is a Pennsylvania corporation located at 406 Brandy Lane, Mechanicsburg, Cumberland County, Pennsylvania. 2. Movant Joseph Calabrese is an adult individual residing at 25 Devonshire Square, Mechanicsburg, Cumberland County, Pennsylvania. 3. On August 20, 2009, Movants filed a Petition for Relief from Confession of Judgment. 4. On August 24, 2009, The Honorable J. Wesley Oler, Jr., issued an Order of Court granting Movants' request for a supersedeas, conditioned upon their posting of a bond with "corporate security acceptable to the court, or cash, in the amount of $75,000.00" within twenty (20) days of the date of the Order. 5. Movant Calabrese & Sons, Inc., does not own any real property. 6. As set forth in Movants' Petition for Relief from Confession of Judgment, Brandy Investors, LP, is currently holding $70,025.00 of Movants' funds in escrow. 7. Brandy Investors, LP had the ability and discretion to apply the escrowed funds to avoid the bulk of its claim but has failed and refused to utilize the funds to reduce its claim, resulting in an inflated claim. Movant Calabrese & Sons, Inc., is currently experiencing financial difficulties and does not have the financial capability to both post an additional $75,000.00 corporate security and continue operating. 9. Furthermore, it is unclear to Movants whether the Court is requiring an additional $75,000.00 over and above the amount currently held in escrow by Brandy Investors, LP, or whether Calabrese is entitled to a credit for the amount currently held in escrow by Brandy Investors, LP. 10. Movants have sought the services of a bond agent for Penn National Insurance, but the bond agent advises that he is unable to determine precisely what the Court seeks as security/bond in this matter. 11. Because Brandy Investors, LP, is currently secured by the funds that it is holding in escrow, Movants request that the Court grant Movants' request for a supersedeas without the requirement of posting bond. 12. The Honorable J. Wesley Oler, Jr., was previously assigned to this matter. WHEREFORE, Calabrese & Sons, Inc., and Joe Calabrese respectfully request that its Motion for Reconsideration be granted and that their request for a supersedeas be granted without the posting of bond. Date: September l 1 2009 MARTSON LAW OFFICES By Seth T. Mosebey, Esquir I.D. No. 203046 David A. Fitzsimons, Esquire I.D. No. 41722 10 East High Street Carlisle, PA 17013 (717) 243-3341 Attorneys for Defendants CERTIFICATE OF SERVICE I, Mary M. Price, an authorized agent for Martson Law Offices, hereby certify that a copy of the foregoing Motion for Reconsideration or Clarification of Security was served this date by depositing the same in the Post Office at Carlisle, PA, first class mail, postage prepaid, addressed as follows: John H. Pietrzak, Esquire Reager & Adler, P.C. 2331 Market Street Camp Hill, PA 17011 (717) 763-1383 Attorney for Brandy Investors, LP MARTSON LAW OFFICES By: 1 M Price Ten st High Street Carlisle, PA 17013 (717) 243-3341 Dated: I/ p/ 07 1 16 RLED-OFFICE ©F THc oT,?,IONOTARY 2009 SEP 11 PM 2'. 31 PENNSYLVANM, REAGER & ADLER, P.C. BY:JOHN H. PIETRZAK, ESQUIRE Attorney I.D. No. 79538 Email: Jpietrzakna ReagerAdlerPC com BY: THOMAS O. WILLIAMS, ESQUIRE Attorney I.D. No. 67987 Email: Twilliams6WeagerAdlerPC com 2331 Market Street Camp Hill, PA 17011 Telephone: (717) 763-1383 Facsimile: (717) 730-7366 Attorneys for Brandy Investors LP BRANDY INVESTORS, LP, Respondent/Plaintiff IN THE COURT OF COMMON PLEAS, CUMBERLAND COUNTY, PENNSYLVANIA V. CALABRESE & SONS, INC., and JOSEPH CALABRESE, Petitioner/Defendants : CIVIL ACTION : NO. 09-4977 : CONFESSION OF JUDGMENT RESPONDENT BRANDY INVESTORS LP'S ANSWER TO PETITIONERS' PETITION FOR RELIEF FROM CONFESSION OF JUDGMENT AND NOW, comes the Respondent, Brandy Investors, LP, by and through its attorneys, Reager & Adler, P.C., and files the following Answer to Petitioner's Petition for Relief from Confession of Judgment, and in support thereof, avers the following: 1. Admitted. 2. Admitted. 3. Admitted. 4. Admitted. 5. Admitted. 6. Admitted with clarification. This credit required under Paragraph 3 of the Lease is a security deposit. 7. Admitted. 8. Denied. The lease is a written document that speaks for itself. Any characterization of the Lease is therefore denied. By way of further answer, Paragraph 7 of the Lease requires that if Respondents uses any amount of the security deposit as payment for rent that Petitioner failed to pay, then Petitioner is required to immediately repay that portion of the security deposit to Respondents to bring it back up to the required level of $70,025.00. 9. Denied as stated. Respondents are under no obligation to use the security deposit as a substitute for Petitioner's rent. Even if Respondents did use the security deposit as payment of rent that Petitioner has otherwise defaulted on, paragraph 7 of the Lease would require Petitioner to immediately repay the security deposit to Respondents. 10. Denied. The lease is a written document that speaks for itself. Any characterization of the Lease is therefore denied. 11. Admitted. 12. Admitted. 13. Denied. There is nothing in the Lease requiring Respondents to wait until the face period to pay the taxes. The Lease requires Petitioner to pay the amount due for the taxes to the Respondent within 30 days of the face period. Petitioner failed to do so and to date has not paid Respondents any amount for these taxes. By way of further answer, Petitioner has a long history of failing to pay the amount due for taxes. Therefore, when Petitioner did not take action to pay the taxes in the discount period, and based upon C&S' history of failing to pay taxes as required by the Lease, Respondent mitigated its damages by paying the 2009 county & borough taxes on March 31, 2009. 2 14. This paragraph contains a legal conclusion to which no response is required. 15. This paragraph contains a legal conclusion to which no response is required. 16. This paragraph contains a legal conclusion to which no response is required. 17. This paragraph contains a legal conclusion to which no response is required. 18. Denied. There is no basis to strike the confessed judgment. The Lease puts no restriction whatsoever upon Respondent as to when it may pay the taxes. The Lease expressly requires Petitioner to pay the amount due for the taxes to the Respondent within 30 days of the face period, as Petitioner admits in Paragraph 10 of its Petition. Petitioner has to date not paid Respondent any amount for the 2009 county & borough taxes. 19. Denied. Petitioner's averment is irrelevant. The Lease puts no restriction whatsoever upon Respondent as to when it may pay the taxes. The fact that Respondent chose to pay the taxes in the discount period did not relieve Petitioner of its obligation under the Lease to pay the amount due to the Respondent within 30 days of the face period on the tax notice. Petitioner failed to pay any amount to Respondent for the 2009 county & borough taxes within 30 days of the face period or at any other time, in clear violation of the Lease. 20. Denied. Petitioner is stating facts that are irrelevant to the question of whether Respondent included "grossly excessive amounts" in the confessed judgment or whether the confessed judgment included items that were not permitted in the contract authorizing confession of judgment, which are the only bases for striking the confessed judgment. The only relevant fact is that Petitioner defaulted on its obligation to pay the amount due for the 2009 county & borough taxes to Respondent within 30 days of the face period. Respondent's action in paying the taxes during the discount period is irrelevant and does not relieve Petitioner of its obligations under the Lease. 21. Denied. Petitioner's argument in this paragraph does not comply with the standard for striking a confessed judgment that the Petitioner itself set forth in Paragraph 16 of its Petition. Respondent complied with its obligation under the Lease when it provided Petitioner with notice of the taxes due. Petitioner failed to pay the amount due to Respondent, which constituted a default of the Lease for which Respondent was permitted to confess judgment. Petitioner has not alleged any facts that would satisfy the standard required to strike a confessed judgment. Petitioner must allege facts suggesting that Respondent included "grossly excessive amounts" in the confessed judgment or that the confessed judgment included items that were not permitted in the contract authorizing confession of judgment. Petitioner's Petition does not even allege facts that would satisfy this standard. The Petition does not, therefore, provide the Court with a basis to strike the confessed judgment. 22. Denied. The confessed judgment did not include any improper amounts. There is therefore no basis to open the confessed judgment. 23. Denied. Petitioner is alleging facts that are irrelevant to the question of whether Petitioner has a "meritorious defense" to the confessed judgment. The Lease requires Petitioner to pay the amount due for taxes to Respondent within 30 days of the face period. Petitioner failed to do so. The timing of when Respondent paid the tax does not change Petitioner's obligation under the lease. Petitioner's argument that the confessed judgment includes improper amounts because the amount included in the confessed judgment for the taxes paid during the discount period is less than what would be included if Respondent paid the face period amount is a novel argument, but it does not provide Petitioner with a "meritorious defense" to the confessed judgment. This argument, therefore, does not provide any basis to open the confessed judgment. 24. Denied. The averment contained in this paragraph does not provide the Petitioner with a "meritorious defense" to the confessed judgment and therefore does not provide any basis to open the confessed judgment. The Respondent is not required to use the $70,025.00 security deposit as credit for unpaid rent. Petitioner owes more than $70,025.00 to Respondents for prior unpaid rent and taxes that are not included in this confessed judgment. So even if Respondent chose to use the security deposit as credit for unpaid rent, it would be credited to previous defaults that are not included in this confessed judgment. 25. Denied. Petitioner's allegation is factually incorrect, grossly misleading and irrelevant in any case. Neither Respondent nor its legal counsel used Petitioner's escrowed funds to satisfy costs in any previous suit between Respondent and Petitioner. Unfortunately, Respondent must now set forth an explanation of the accurate facts, although they bear no relevance to the current matter, in order to counter Petitioner's counsel's misleading accusation of impropriety against Respondent and its counsel. In June 2006, Respondent purchased the property located at 406 Brandy Lane from Petitioner. This is the same property that Petitioner now leases from Respondent. In order to complete the transaction, outstanding judgments against Petitioner had to be satisfied and marked as such with the Cumberland County Prothonotary. Prior to entering the praecipe to satisfy one such judgment, the Sheriff's poundage in the net amount of $718.08 had to be paid. Respondent's counsel paid this poundage out of funds the Petitioner had escrowed specifically for the satisfaction of the judgments. Respondent's Counsel notified Petitioner's counsel, David A. Fitzsimons that it intended to pay the poundage out of the escrowed funds prior to doing so. See Exhibit A, July 18, 2006 letter from David W. Reager, to David A. Fitzsimons. See Exhibit B, Ledger report showing escrow of funds for payment of judgments and payment of poundage on July 19, 2006. Petitioner's counsel voiced no objection to this use of the escrowed funds at any time prior to its filing the instant Petition for Relief. Once Petitioner resolved the final judgment affecting the escrowed funds, Respondent's counsel disbursed the remaining escrow to Petitioner's counsel, who, again, voiced no objection to the use of any escrowed funds throughout the entire transaction. See Exhibit C, October 28, 2008 letter from David W. Reager to David A. Fitzsimons. It is clear that Respondent's counsel's use of the escrowed funds was completely appropriate, was done with complete prior disclosure to Petitioner's counsel and that the escrowed funds were directly related to the transaction for which they were utilized. None of these facts bear any relevance to the instant matter, nor do they provide Petitioner with any basis for relief against the confessed judgment entered in this matter. 26. Admitted. WHEREFORE, Respondent, Brandy Investors, LP, requests this Honorable Court to deny Petitioners' Petition for Relief from Confessed Judgment in Ejectment. Respectfully submitted, REAGER & ADLER, P.C. Date: September 11, 2009 (U-. J H. Pietrzak, Esq ire Attorney I.D. No. 79538 Thomas O. Williams, Esquire Attorney I.D. No. 67987 Attorneys for Plaintiff, Brandy Investors, LP READER &ADLER, PC ATTORNEYS AND COUNSELORS AT LAW - - 2331 MARKET STREET CAMP HILL, PENNSYLVANIA 17011-4642 717-763-1383 TELEFAX 717-730-7366 WEBSITE: ReagerAdlerPC.com THEODORE A. ADLER + DAVID W. REAGER CHARLES E. ZALESKI LINUS E. FENICLE THOMAS O. WILLIAMS SUSAN J. SMITH Writer's E-Mail Address: DWReager@ReagerAdlerPC.com July 18, 2006 VIA E-MAIL AND FIRST CLASS MAIL DFitzslmons@MDWO.com David A. Fitzsimons, Esquire Martson Deardorff Williams & Otto 10 East High Street Carlisle, PA 17013 RE: CALABRESE & SONS, INC. Dear David: "4 SUSAN H. CONFAIR TIFFANY M. CARTWRIGHT PETER R. WILSON JOHN H. PIETRZAK RICHARD J. JOYCE +Certified Civil Trial Specialist The purpose of this letter is two-fold. One, as a response to your letter to me dated July 13, 2006, and also as further advice regarding our activities in having the Judgments at the county marked satisfied. First, with regard to your letter, as you may expect, I find it to be incredulous, given the fact that your client sat in our offices at the closing and failed to mention that a Judgment was entered against him in the amount of $34,937.45, in spite of the fact that the court records indicate that he was provided with written notice of that entry of Judgment several days prior to closing. Nonetheless, he signed and provided us with an Owner's Affidavit, which indicates, among other things, that he has no knowledge of such Judgments entered of record. I believe that our action in stopping payment on the funds disbursed, as well as my efforts in contacting you prior to stopping any of your major creditor payments, was appropriate and courteous. Accordingly, please be advised that we decline to provide any form of reimbursement to Mr. Calabrese. Additionally, while we have endeavored to move through all of these matters relating to his lawsuits and credit difficulties, in retrospect, my preference would have been to simply postpone scheduling closing until he was able to deliver to us all of the documentation required in connection with his cleared title. Instead, in order to accommodate the parties, which resulted in our rescheduling settlement several times over a period of more than a week, we put forth extra efforts in assisting and coordinating all of these various outstanding issues. David A. Fitzsimons, Esquire July 18, 2006 Page 2 My second reason in writing to you is, as we have continued to resolve your client's outstanding issues, we have been advised by the Prothonotary's Office that they are unable to enter the Praecipe relating to the Dyson Corporation Judgment without first paying the 2% poundage to the Sheriff's Office in the net amount of $718.08, which represents the balance due after the total of $868.09, less the credit of $150.00 already posted for the various filing fees. Again, it would have been our preference to have had this resolved by your client so that it would not be necessary for us to continue processing these matters. Accordingly, I am suggesting that we simply disburse the $718.08 and apply it against the escrow balance we are maintaining ($13,182.44) pending the final outcome of the Judgment held by Turri Associates, Inc. Also, in this regard, it would be unnecessary for us to continue to monitor this file for your client to work through matters on the Judgment if we had simply required total payment at the time of closing; another extended courtesy. Very truly yours, David W. Reager DWR/sam cc: William F. Rothman Date: 09/09/2009 . TAS Client Trust Ledger Reager & Adler, PC Attorney: 1 David W. Reager 6283.000-5 ROttlrraMAMIliarn R 406 Brandy Lane Date Check # Description 06123/2006 Deposit MIDSTATE CK# 22176 -FOR Amount Balance Payee JUDGEMENT SATISFACTION 40,000.00CR 40,000.00 06/23/2006 Deposit MIDSTATE CK# 120523 - FOR JUDGEMENT SATISFACTION 13,182.44CR 53,182.44 06/29/2006 6227 Reimbursement for ck# 22178 06/29/2006 6225 109.81DB 53,072.63 MIDSTATE SETTLEMENT ACCT 06/29/2006 34,937.45DB 18,135.18 TurriAssociates 6226 Turn Payoff remainder 06/2912006 5,062.55DB 13,072.63 Calbrese & Sons, Inc 8228 07/19/2006 127.OODB 12,945.63 Recorder of Deeds 6237 10/28/2008 6763 Disbursement 718.08DB 12,227.55 SHERIFF OF CUMBERLAND COUNTY 12,227.55DB 0.00 Martson Deardorff Williams Otto Total Deposits: Total Checks: 53,182.44CR Closing Balance: 53,182.44DB $0.00 Page: 1 9P Wednesday 09/0912009 2:57 pm REAGER & ADLER, PC ATTORNEYS AND COUNSELORS AT LAW 2331 MARKET STREET CAMP HILL, PENNSYLVANIA 17011-4642 717-763-1383 TELEFAX 717-730-7366 WEBSITE: ReagerAdlerPC.com THEODORE A. ADLER + DAVID W. REAGER LINUS E. FENICLE THOMAS O. WILLIAMS PETER R. WILSON Writers E-Mail Address: DWReager@ReagerAdlerPC.com October 28, 2008 David A. Fitzsimons, Esquire Martson Deardorff Williams & Otto Ten East High Street Carlisle, PA 17013 RE: CALABRESE & SONS, INC. Our File No. 06-283 Dear David: SUSAN H. CONFAIR JOHN H. PIETRZAK RICHARD J. JOYCE NEELY E. MEALS WAYNE S. MARTIN, P.E. +Certified Civil Trial Specialist This letter is a follow-up to your letter dated October 22, 2008, as well as our telephone conversation on Monday, October 27, 2008, regarding the escrow amount and the referenced matter. As we discussed, at the time of closing on June 15, 2006, we retained in escrow $13,182.44 to be made available for payment of a judgment against Calabrese & Sons, Inc., by Danko Arlington governed by the provisions of the Escrow Agreement dated June 15, 2006, executed by the parties. By your letter dated October 22, 2008, you have provided me a letter from James J. Woodworth, Esquire, dated October 16, 2008, advising their client, Danko Arlington, has accepted your offer to settle this matter for $6,591.22 in total. As I indicated to you when we spoke, the escrow balance is presently $12,227.55 which reflects certain disbursements as follows: Beginning Balance $13,182.44 Reimbursement to Midstate Abstract settlement account for Check No. 22178 payable to Freidman & King, PC $109.81 Recorder of Deeds $127.00 Sheriff of Cumberland County $718.08 Subtotal $ 854.89 Ending Balance $12,227.55 David A. Fitzsimons, Esquire 'Page 2 October 28, 2008 I have reviewed our statements in detail and determined that these charges were not added to any of the claims against Calabrese & Sons, Inc., in connection with any litigation. Accordingly, please find enclosed our escrow check made payable to Martson Deardorff Williams Otto Gilroy & Faller for $12,227.55 which is provided to you upon the understanding that you will make payment directly to James J. Woodworth, Esquire, on behalf of his client, Danko Arlington, Inc., and that you provide me with a time-stamped copy of the satisfaction of the judgment of record. Very truly yo , Davi . Reager DWR/dlb Enclosure FAX: Bill Rothman .,u ... 6763 REALER, ADLER, P.C. ..s..*? ESCROW ACCOUNT 2331 MARKET STREET 60-1841,313 CAMP HILL, PENNSYLVANIA 17011 DATE NUMBER AMOUNT - I 10128/2008 6763 *$IZ227.55 PAY ***TWELVE THOUSAND TWO HUNDRED TWENTY-SEVEN &.55/100 DOLLARS TO THE Manson Deardorff Williams Otto ORDER OF Gilroy & Faller ? SF ..: AUTHOR.aZEA $IQNATl112k Flo William F. Rothman, n'006?6311' 1:0 3 1 30 18461: S3 ?0SIB11 511' iEAGER & ADLER, P.C. PAY TO 6763 DATE TRUST NAME Mastw4 4 _T fAS E)ft AMOUNT 10/28/2008 William F. Rothman Disbursement 12227.55 Account: 6283.000-5 VERMCATION I, William Rothman, hereby verify that I am a partner in Brandy Investors, LP, and, as such, I am authorized to verify the averments of the foregoing document are true and correct to my personal knowledge, information and belief. I understand that false statements herein are made subject to the penalties of 18 Pa. C. S. §4904, relating to unsworn falsification to authorities. Date: B i .._...._ Y• William Rothman BRANDY INVESTORS, LP, Respondent/Plaintiff V. CALABRESE & SONS, INC., and JOSEPH CALABRESE, Petitioner/Defendants IN THE COURT OF COMMON PLEAS, CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION NO. 09-4977 : CONFESSION OF JUDGMENT CERTIFICATE OF SERVICE I hereby certify that on the date set forth below a true and correct copy of the foregoing Respondent's Answer to Petitioners' Petition for Relief From Confession of Judgment was served via first class U.S. mail, postage prepaid, to the following: David A. Fitzsimons, Esquire Martson, Deardorff, Williams Otto Gilroy & Faller, P.C. Ten East High Street Carlisle, PA 17013 Dated: September 11, 2009 l.1 ?. J ica Shull F 2 009 SE P 14 F1 2: # BRANDY INVESTORS, LP, IN THE COURT OF COMMON PLEAS OF Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA V. CIVIL ACTION - LAW CALABRESE & SONS, INC., and JOSEPH CALABRESE, Defendants NO. 09-4977 CIVIL TERM IN RE: DEFENDANTS' MOTION FOR RECONSIDERATION OR CLARIFICATION OF SECURITY ORDER OF COURT AND NOW, this 15`h day of September, 2009, upon consideration of Defendants' Motion for Reconsideration or Clarification of Security, a Rule is hereby issued upon Plaintiff to show cause why the relief requested should not be granted. RULE RETURNABLE with in 20 days from service. BY THE COURT, John H. Pietrzak Esq. 2331 Market Street Camp Hill, PA 17011 Attorney for Plaintiff ?/ Seth T. Mosebey, Esq. David A. Fitzsimons, Esq. 10 East High Street Carlisle, PA 17013 Attorneys for Defendants FILEO ICE OF THE OtK)TARY 2009 SEP 10- PA ;): e 5 ye? REAGER & ADLER, P.C. BY:JOHN H. PIETRZAK, ESQUIRE Attorney I.D. No. 79538 Email: Jpietrzak(&ReagerAdlerPC.com BY: THOMAS O. WILLIAMS, ESQUIRE Attorney I.D. No. 67987 Email: TwilliamsaRea eg rAdlerPC.com 2331 Market Street Camp Hill, PA 17011 Telephone: (717) 763-1383 Facsimile: (717) 730-7366 Attorneys for Brandy Investors, LP BRANDY INVESTORS, LP, Respondent/Plaintiff V. CALABRESE & SONS, INC., and JOSEPH CALABRESE, Petitioner/Defendants IN THE COURT OF COMMON PLEAS, CUMBERLAND COUNTY, PENNSYLVANIA : CIVIL ACTION NO. 09-4977 CONFESSION OF JUDGMENT RESPONDENT BRANDY INVESTORS, LP'S ANSWER TO PETITIONERS' MOTION FOR RECONSIDERATION OR CLARIFICATION OF SECURITY AND NOW, comes the Respondent, Brandy Investors, LP, by and through its attorneys, Reager & Adler, P.C., and files the following Answer to Defendants' Motion for Reconsideration or Clarification of Security, and in support thereof, avers the following: 1. Admitted. 2. Admitted. 3. Admitted. 4. Admitted. 5. Admitted, upon information and belief. 6. Admitted with clarification. This credit required under Paragraph 3 of the Lease is a security deposit. 7. Denied. Defendants refer to Plaintiff Brandy Investors' (hereinafter "Plaintiffs") rights under a written Lease agreement. This paragraph therefore contains a legal conclusion to which no response is required. Further, the Lease is a written document that speaks for itself and Plaintiff's deny any characterization of the Lease. By way of further answer, Plaintiff was under no obligation to use Defendants' security deposit as a credit against the rent and taxes that Defendants have failed to pay. Even if Plaintiff did use the security deposit in such a manner, Defendants already owe Plaintiff more than $70,025.00 in back rent and taxes that occurred prior to the defaults included in the current confession of judgment. As such, if Plaintiffs had used the security deposit as a credit against prior defaults under the lease, the security deposit would be exhausted prior to reaching the amounts included under the current confessed judgment. Plaintiff's claim in this matter is not inflated in any matter whatsoever. 8. Denied. Plaintiff possesses insufficient information to either admit or deny the factual allegations of this paragraph; the factual allegations of this paragraph are therefore denied and strict proof thereof is demanded. 9. Denied. The Court's August 24, 2009 Order is quite clear and unambiguous in that it requires posting of a bond or cash in the amount of $75,000.00. The Court's Order does not refer in any way to the use of the security deposit as a substitute for an acceptable bond. Further, the Lease agreement between the parties does not anticipate or allow for the security deposit to be used in place of a court-ordered bond where Plaintiffs are forced to resort to legal action to collect delinquent rent and other amounts due under the Lease. 10. Denied. Plaintiff possesses insufficient information to either admit or deny the factual allegations of this paragraph; the factual allegations of this paragraph are therefore denied and strict proof thereof is demanded. 11. Denied. Plaintiff is not "secured" by the funds that it is holding in escrow. As stated above, Defendants already owe Plaintiffs more than the amount held in escrow for prior defaults under the Lease that are not included in the current confessed judgment. In addition, Defendant has defaulted on all rent owed since the confession of judgment was filed in July 2009. Defendant has defaulted on its rent payments for August 2009 in the amount of $25,136.42 and September 2009 in the amount of $25,136.42. One can only conclude that Defendant intends to continue to default on all of its obligations under the Lease. For that reason, this Honorable Court should not grant Defendant's request to reconsider the bond requirement. Indeed, the Court would be warranted should it choose to increase the bond requirement to account for the additional defaults committed by Defendant. 12. Admitted. WHEREFORE, Plaintiff, Brandy Investors, LP, requests this Honorable Court to deny Defendants' Motion for Reconsideration and requests the Court to deny Defendant's request for supersedeas without the requirement of posting a bond. Respectfully submitted, REAGER & ADLER, P.C. Date: September 16, 2009 Jo H. Pietrzak, Esq re Attorney I.D. No. 79538 Thomas O. Williams, Esquire Attorney I.D. No. 67987 Attorneys for Plaintiff, Brandy Investors, LP VERIFICATION I, William Rothman, hereby verify that I am a Partner in Brandy Investors, LP, and, as such, I am authorized to verify the averments of the foregoing document are true and correct to my personal knowledge, information and belief. I understand that false statements herein are made subject to the penalties of 18 Pa. C. S. §4904, relating to unworn falsification to authorities. Date: 1 © By. William Rot an BRANDY INVESTORS, LP, IN THE COURT OF COMMON PLEAS, Respondent/Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA V. CIVIL ACTION CALABRESE & SONS, INC., NO. 09-4977 Petitioner/Defendants CONFESSION OF JUDGMENT CERTIFICATE OF SERVICE I hereby certify that on the date set forth below a true and correct copy of the foregoing Respondent's Answer to Petitioners' Motion for Reconsideration or Clarification of Security was served via first class U.S. mail, postage prepaid, to the following: David A. Fitzsimons, Esquire Martson, Deardorff, Williams Otto Gilroy & Faller, P.C. Ten East High Street Carlisle, PA 17013 Dated: September 18, 2009 Ga 1/ A J ica Shull 7_? 1...1 I-; \.l1. BRANDY INVESTORS, LP, IN THE COURT OF COMMON PLEAS OF Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA V. CIVIL ACTION - LAW CALABRESE & SONS, INC., and JOSEPH CALABRESE, Defendants NO. 09-4977 CIVIL TERM IN RE: DEFENDANTS' MOTION FOR RECONSIDERATION OR CLARIFICATION OF SECURITY ORDER OF COURT AND NOW, this 2°d day of October, 2009, upon consideration of Defendants' Motion for Reconsideration or Clarification of Security, and of Respondent Brandy Investors LP's Answer to Petitioners' Motion for Reconsideration or Clarification of Security, it is ordered and directed as follows: 1. The motion for reconsideration is granted; 2. The order of court dated August 24, 2009, is amended to reduce the amount of security provided for therein from $75,000 to $7,500; and 3. The said order is clarified, to the extent that Defendant perceives it to be ambiguous, to provide that the said security is in addition to any funds being held in escrow by Plaintiff. John ZH. Pietrzak Esq. 2331 Market Street Camp Hill, PA 17011 Attorney for Plaintiff BY THE COURT, ./ Seth T. Mosebey, Esq. David A. Fitzsimons, Esq. 10 East High Street Carlisle, PA 17013 Attorneys for Defendants Gof t Q' /'n a`T I' tcj, lo?SlOQ OF THE P OTH??'DTARY 2009 OCT -2 PM 4: 2 7 PENNSYLVANIA BRANDY INVESTORS, LP, Plaintiff V. CALABRESE & SONS, INC., and JOSEPH CALABRESE, Defendants IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA : CIVIL ACTION - LAW : NO. 09-4977 CIVIL TERM IN RE: DEFENDANTS' PETITION FOR RELIEF FROM CONFESSION OF JUDGMENT BEFORE OLER, J. ORDER OF COURT AND NOW, this 6`h day of November, 2009, upon consideration of Defendants' Petition for Relief from Confession of Judgment, and following oral argument held on November 4, 2009, the petition is denied. NOTHING in this order is intended to represent a ruling that Defendants are not entitled to a return of all or part of the security deposit in this case. John H. Pietrzak, Esq. 2331 Market Street Camp Hill, PA 17011 Attorney for Plaintiff ? David A. Fitzsimons Esq. 10 East High Street Carlisle, PA 17013 Attorneys for Defendants BY THE COUR, J. esley Oler, r., J. ?r? RLED--C) rFl"',E- OF THE PP j i HONOTARY 2009 NOV -6 PM 3., 08 A . ' ~ SHERIFF'S OFFICE OF CUMBERLAND COUNTY Ronny R Anderson Sheriff ~ ~+ Jody S Smith Chief Deputy - , Richard W Stewart Solicitor ~~~` C~1~ ; ~~, ~,ti~Y Brandy Investors, LP Case Number vs. Calabrese & Sons, Inc. (et al.) 2009-4977 SHERIFF'S RETURN OF SERVICE 12/02/2009 10:41 AM -Shawn Harrison, Deputy Sheriff, who being duly sworn according to law, states that on December 2, 2009 at 1054 hours, attached as herein commanded all goods, chattels, rights, debts, credits, and monies of the within named defendant, to wit: Calabrese & Sons, Inc. and Joseph Calabrese, in the hands, possession, or control of the within named garnishee, Integrity Bank, 3345 Market Street, Camp Hill, Cumberland County, Pennsylvania 17011, by handing to Melissa Humer, Assistant Manager, personally three copies of interrogatories together with three true and attested copies of the writ of execution and made the contents there of known to her. The writ of execution and notice to defendant was mailed on December 4, 2009 to Joseph Calabrese c/o Calabrese & Sons, Inc. 406 Brandy Lane, Mechanicsburg, PA 17055; and to Calabrese & Sons, Inc. 406 Brandy Lane, Mechanicsburg, PA 17055. 12/02/2009 10:53 AM -Shawn Harrison, Deputy Sheriff, who being duly sworn according to law, states that on December 2, 2009 at 1054 hours, attached as herein commanded all goods, chattels, rights, debts, credits, and monies of the within named defendant, to wit: Calabrese & Sons, Inc. and Joseph Calabrese, in the hands, possession, or control of the within named garnishee, Greystone Bank, 3599 Gettysburg Road, Camp Hill, Cumberland County, Pennsylvania 17011, by handing to Micah Davis, Customer Service Representative personally three copies of interrogatories together with three true and attested copies of the writ of execution and made the contents there of known to her. 06/30/2010 Ronny R. Anderson, Sheriff, who being duly sworn according to law, states this writ of execution is returned as ABANDONED. No action on writ in over 6 months. SHERIFF COST: $161.04 SO ANSWERS, --~._ June 30, 2010 RON R ANDERSON, SHERIFF ;~ , -, 8 jam; Sharon R. Lantz 1. ~^ L~ /~C- ~~~', ~ ~ 7G ~7~~