Loading...
HomeMy WebLinkAbout09-6533GUISEPPE BARONE and GIOVANNI BARONE, PLAINTIFFS VS. BRANDON C. POWERS, To: Brandon C. Powers : IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA NO. 09 X 533 ?'/U? / T. rl,"7 DEFENDANT ACTION IN EJECTMENT NOTICE UNDER RULE 2973.2 OF JUDGMENT AND EXECUTION NOTICE OF DEFENDANT'S RIGHTS A judgment for possession of real property has been entered against you and in favor of the plaintiffs without prior notice and hearing based on a confession of judgment contained in a promissory note or other document allegedly executed by you. The sheriff may remove you from the property at any time after thirty 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 being removed from the property. ANY PETITION SEEKING RELIEF FROM THE JUDGMENT MUST BE FILED 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, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW. THIS OFFICE CAN PROVIDE YOU WITH INFORMATION ABOUT HIRING A LAWYER. IF YOU CANNOT AFFORD TO HIRE A LAWYER, THIS OFFICE MAY BE ABLE TO PROVIDE YOU WITH INFORMATION ABOUT AGENCIES THAT MAY OFFER LEGAL SERVICES TO ELIGIBLE PERSONS AT A REDUCED FEE OR NO FEE. Cumberland County Bar Association 32 S. Bedford Street Carlisle, PA 17013 (717) 249-3166 ROBERT P. KLINE, ESQUIRE Attorney for Plaintiffs 714 Bridge Street Post Office Box 461 New Cumberland, PA 17070-0461 (717) 770-2540 GUISEPPE BARONE and GIOVANNI BARONE, PLAINTIFFS VS. IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA NO. 0 9_ S3 3 ?? T BRANDON C. POWERS, DEFENDANT ACTION IN EJECTMENT PRAECIPE FOR ENTRY OF CONFESSION OF JUDGMENT OF POSSESSION OF REAL PROPERTY TO THE PROTHONOTARY: Pursuant to the authority contained 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 Defendant and confess judgment in ejectment in favor of the Plaintiffs and against the Defendant for possession of 'the real property described as follows: 700 Valley Street, East Pennsboro Township, Cumberland County, Pennsylvania, Tax Parcel No. 09-12-2993-073. Respectfull bmitted, ?)?? Robert P. Kline, Esquire Attorney ID #58798 Kline Law Office 714 Bridge Street Post Office Box 461 New Cumberland, PA 17070 (717) 770-2540 GUISEPPE BARONE and GIOVANNI IN THE COURT OF COMMON PLEAS BARONE, CUMBERLAND COUNTY, PENNSYLVANIA PLAINTIFFS VS. NO. 0 5'- 3.3 C ( {e6 ivy BRANDON C. POWERS, DEFENDANT ACTION IN EJECTMENT COMPLAINT IN EJECTMENT AND NOW, come the Plaintiffs, Guiseppe Barone and Giovanni Barone, by their attorney, Robert P. Kline, Esquire, who state as follows: 1. Plaintiffs are Guiseppe Barone and Giovanni Barone, adult individuals who reside at 1400 Old Reliance Road, Middletown, Dauphin County, Pennsylvania 17057 2. Defendant is Brandon C. Powers, an adult individual who resides at 383 North 26'h Street, Camp Hill, Cumberland County, Pennsylvania 17011. 3. Plaintiffs are the owners of certain real property located at 700 Valley Street; East Pennsboro Township, Cumberland County, Pennsylvania, by virtue of a deed recorded September 8, 2005 in Cumberland County Deed Book 270 at page 4399, attached hereto as Exhibit "A". 4. On or about July 1, 2008, Plaintiffs and Defendant entered into a "Triple Net Commercial Lease" for the lease of the property at 700 Valley Street, East Pennsboro Township, Cumberland County, a copy of which is attached hereto as Exhibit "B". 5. Paragraph 2 of said Lease Agreement provides, in part, that rent is due on the first day of each month, that a late charge in the amount of $150.00 is due and payable when the rent is not paid by the fifth calendar day of the month, and failure to make the rental payment by the close of business on the fifteenth day of the month constitutes legal notice by the Tenant of intent to cease renting the premises effective at the end of the current month and also as a default by the Tenant under the terms of this Lease. 6. Paragraph 36 of the Lease Agreement provides, in part, that during the term of the Lease Tenant shall be responsible for and shall pay before delinquency all real estate taxes. 7. Throughout the term of the Lease, Defendant has, on numerous occasions, paid the monthly rent after the fifth day of the month, but, in each instance, has failed to include the required late fee in the amount of $150.00 for each such payment, despite the repeated request of Plaintiffs that it be included. As of the date of this Complaint, late fees in the amount of $1,350.00 have accrued and remain due and unpaid, thereby constituting a default under the Lease Agreement. 8. As of the 15th of September, 2009, Defendant has failed to pay the monthly rental payment in the amount of $3,000.00 for the month of September, 2009, thereby constituting a default under the Lease Agreement. 9. Despite repeated requests by Plaintiffs, Defendant has failed to provide proof to Plaintiffs that the 2009 real estate property taxes on the property have been paid, as required by the Lease, thereby constituting a default pursuant to the terms of the Lease. 10. As a result of the Defendant's default pursuant to the Lease Agreement as enumerated in the paragraphs above, Defendant is in default of the Lease Agreement and, therefore, has forfeited his right to possession of the subject premises. 11. Paragraph 21 of the Lease Agreement provides, in part, that Landlord may confess judgment for possession of the leased premises. 12. Plaintiffs' most recent letter to Defendant, dated September 11, 2009, along with a certified mail receipt dated September 12, 2009, is attached hereto as Exhibit "C", whereby Plaintiffs advised Defendant of Defendant's default and of Plaintiffs' intention to pursue any and all remedies available pursuant to the Lease Agreement. 13. The Lease Agreement has not been assigned by the Plaintiffs to any other party. 14. Judgment for possession has not been entered on this Lease in any jurisdiction. 15. The judgment requested herein is not being entered against a natural person in connection with a residential lease. WHEREFORE, Plaintiffs respectfully request that this Honorable Court enter judgment by confession for possession of the real property located at 700 Valley Street, East Pennsboro Township, Cumberland County, Pennsylvania, in their favor and against Defendant. Respectfully submitted, -2°t 5"T Z0v°1 DATE ROBERT P. KLINE, ESQUIRE 714 Bridge Street Post Office Box 461 New Cumberland, PA 17070-0461 (717) 770-2540 Attorney for Plaintiffs x::515 v w DEED THIS DEED is made the L day of August 2005 00 SEP 25 8 PM 321 BETWEEN CRL HOLDINGS, L.P.,-&Pennsylvania limited partnership ("Grantor"), AND GIUSEPPE BARONE and GIOVANNI BARONE, adult individuals (collectively, "Grantee"): WITNESETH That the Grantor in consideration of One Hundred Eighty-Five Thousand Dollars ($185,000) paid by the Grantee to the Grantor, the receipt whereof is hereby acknowledged, does hereby grant and convey unto the Grantee: Tract Number 1: ALL THAT CERTAIN tract or parcel of land, situate in East Pennsboro Township, Cumberland County, Pennsylvania, more particularly bounded and described according to a survey of D.P. Raft mperW Associates, Registered Surveyors, dated April 19, 1973, as follows: BEGINNING at a point at the southwest comer of Valley street (Legislative Route,21051) (50 foot right-of-way) and "g" Street (may identified as "D" Street in a prior deed) (50 foot right-of-way); thence along the western line or "B" Street (erroneously identified as "D" Street in a prior deed) the following couraes and distances; South 13' 01' East, 15.77 feet; a curve to the right having a radius of 245 feet, an arc dim of 93.13 feet, South 08' 45 43" West, 93.65 feet to a point in line of other lands now or formerly of Dale J. Hildebrandt; twice North 03° Oil West along said Hildebrandt lands, 105.12 feet to a point; thence North 05° 48' West along the eastern line of other lands raw or formerly of Dale J. Hildebrandt, 175.38 feet to a point in the southern line of Valley Street aforesaid, thence North 84.12 East along said line of Valley Street, 130 feet to a point in the western line of "B" Street (erroneously identified as "D" Street in a prior deed), the place of BEGINNING. BOOK 270 PACE4399 EXHIBIT "A" Tract Number 2: The above-described Tract Number 1 is also shown on the site plan dated September 15, 1993, attached as Exhibit "A" hereto (the "Plan"). BEING the same premises which CRL HokkW, L.P., a Pennsylvania limited partnership, by Corrective Deed dated July 30, 2003 and recorded in Cumberland County Deed Book 258, page 3551, granted and conveyed unto CRL Holdings, L.P., Grantor herein. UNDER AND SUBJECT, nevertheless, to all other easements, restrictions, encumbrances and other matters of record or that a physical inspection or survey of the premises would reveal. Attached as Exhibit "B" hereto and made an integral part hereof is a certain notice pursuant to the Pennsylvania Solid Waste Mai ogement Act and the Land Recycling and Environmental Remediation Standards Act (the "Notice"). All future deeds must contain the Notice unless written approval to remove the Notice is obtained from the Pennsylvania Department of EnvirorxnerhtaI Protection and evidence of such approval is placed of record with the Cumberland County Recorder of Deeds. Grintor hereby covenants and agrees that Grantor will wand SPECIALLY the property hereby conveyed described as Tract Number 1 above. To the extent that Tract Number 2 described in accordance with the Plan includes any addibonal land not included in the property described as Tract Number 1 above (the `Additional Property'), Grantor hereby covenants and agrees that Grantor does hereby rolease, rwifte and forever quitalainh to the Grant@* all of Grantor's' right, title and interest in and to the Additional Property. IN WITNESS WHEREOF, the Grantor has caused this Deed to be duly executed as of the day and year first written above. WITNESS: w-j 2r CRL Holdings, L.P. By its General Partner CRL GP, LLC:' ey Q - John Eyler, Co-Chai D B Y Patrick J. C , Co-C 2 BOOK 270 wfmo COMMONWEALTH OF PENNSYLVANIA COUNTY OF Lo,v\CD-SVe,9' SS: On this, the /o+h day of 2005, before me, a Notary Public, the undersigned officer, personally appeared John E. Byler who acknowiedged himself to be the CaChaimna? of CRL GP, LLC, which is the general parMer of CRL Holdings, L.P., a Pennsylvania limited partnership, and that he as such Co-Chainnan, being authorized to do so, executed the foregoing instrument for the purpose therein contained by signing the name of the limited partnership by himself as such Co- Chairman. IN WITNESS WHEREOF, I have hereunto set my hand and official seal. C 'Z, Notary NOTARIAL SEAL My Commission Expires: Jamb L La,wr. Notary Public Mwftkn Twp., county of UUXNBar My Oorrv aion Exorm April 8, 2007 i R ?. °r n?n;'?cWMN m 1Ow _ ao AP 1 "U 1 1 Tr .'f9 1? I _ _ 00 w g e a 01 --1 S Z --1 9 y r•a ILA '. 3 L.7 w?.., in G Ito ? 'z' r:n c? ? • -. F ? .o as r., . ~ ? w p4 0 O Q iK 44w 1 a• W M a-+ .Y ..1y •21 di 1? r t gri r, cn i tt `•• • 1? N bo0K IG 7V PAGE401 0O `Z'-208g opo`?o ?n 0 TIM COMMONWEALTH OF PENNSYLVANIA COUNTY OF L SS: On this, the 6 !'day of 2005, before me, a Notary Public, the undersigned officer, personally appeared Patrick J. Castagna who ac WvMedged himself to be the Co-Chairman of CRL GP, LLC, which is the general partner of CRL Holdings, L.P., a Pennsylvania limited partnership, and that he as such Co-Chairman, being authorized to do so, executed the foregoing instrument for the purpose therein contained by signing the name of the limited partnership by himself as such Co- Chairman. IN WITNESS WHEREOF, I have hereunto set my hand and official seal. Notary Public (SEAL) .. My Commission Expires: NOTARIAL SEAL JM@ L Law, Nd" public ;,:•,?.?•. ,??• Mwtwkn Up., county of Lmw=W ?,y`:.:.. L .. • Gwn*won apkn April a, 2007 4 966K 270 PACE4402 ..... . ANEW- ..0... . .., . . I hereby certify that the precise residence of the Grantee(s) in the within Deed is: 700 Valley Road Enola. PA 17011 0 for Grantee Q?) { Recorder of Deeds BOOK 270 PACE4403 TRIPLE NET COMMERCIAL LEASE ARTICLE OF AGREEMENT this / day of 2008, by and between GUISEPPE BARONE and GIOVANNI BARONE, 140 OLD RELIANCE ROAD, MIDDLETOWN, COUNTY OF DAUPHIN, PA, 17057 hereinafter referred to as the "LANDLORDS", A N D BRANDON C. POWERS, 383 N. 26TH STREET, CAMP HILL, COUNTY OF CUMBERLAND, PA 17011, hereinafter referred to as the "TENANT". WHEREAS, the LANDLORDS is the owner of certain premises situated at 700 VALLEY ROAD, ENOLA, Township of EAST PENNSBORO, County of Cumberland and Commonwealth of Pennsylvania, hereinafter referred to as the "Leasehold Premises"; and WHEREAS, the Tenant desires to rent and lease the Leasehold Premises from the LANDLORDS, and the LANDLORDS have agreed to lease the same to the Tenant upon the following terms and conditions. NOW, THEREFORE, the parties hereto, intending to be legally bound hereby, and in consideration of the rents and covenants of the Tenant to be paid and kept as herein contained, the LANDLORDS have agreed to lease unto the Tenant, and by these presents does hereby lease the Leasehold Premises unto the Tenant, and the Tenant hereby leases the Leasehold Premises from the LANDLORDS, and the parties do covenant and agree, as follows: 1. Term. This Lease shall be for a term of nine and one-half (9 1/2) years, commencing on the 1 st day "of July, 2008, and ending on the 31 st day of December, 2017. 2. Rent. Tenar't shall pay to LANDLORDS, without demand or deduction, at its offices or such other places as LANDLORDS may from time to time direct in writing, the minimum monthly rental as follows: Tenant shall pay a monthly rental of Three Thousand Dollars and 00/100 ($3,000.00) on the 1st day of July, 2008 and a like sum on the 1st day of each month thereafter up to and including the December 1, 2009. Tenant shall pay a monthly rental of Three Thousand One Hundred Twenty Dollars and 00/100 ($3,120.00) on the 1 st day of January, 2010 and a like sum on the 1 st day of each month thereafter up to and including December 1, 2010. Tenant shall pay a monthly rental of Three Thousand Two Hundred Forty-Four Dollars and 80/100 ($3,244.80) on the 1st day of January, 2011 and a like sum on the lst day of each month thereafter up to and including December 1, 2011. EXHIBIT "B" Page 1 Tenant shall pay a monthly rental of Three Thousand Three Hundred Seventy-Four Dollars and 59/100 ($3,374.59) on the 1st day of January, 2012 and a like sum on the 1st day of each month thereafter up to and including December 1, 2012. Tenant shall pay a monthly rental of Three Thousand Five Hundred Nine Dollars and 57/100 ($3,509.57) on the 1st day of January, 2013 and a like sum on the 1st day of each month thereafter up to and including December 1, 2013. Tenant shall pay a monthly rental of Three Thousand Six Hundred Forty Nine Dollars and 95/100 ($3,649.95) on the 1 st day of January, 2014 and a like sum on the 1 st day of each month thereafter up to and including December 1, 2014. Tenant shall pay a monthly rental of Three Thousand Seven Hundred Ninety-Five Dollars and 95/100 ($x,795.95) on the 1st day of January, 2015 and a like sum on the 1st day of each month thereafter up to and including December 1, 2015. Tenant shall pay a monthly rental of Three Thousand Nine Hundred Forty-Seven Dollars and 79/100 ($3,947.79) on the 1st day of January, 2016 and a like sum on the 1st day of each month thereafter up to and including December 1, 2016. Tenant shall pay a monthly rental of Four Thousand One Hundred Five Dollars and 70/100 ($4,105.70) on the 1st day of January, 2017 and a like sum on the 1st day of each month thereafter up to and including December 1, 2017. A late charge of One Hundred Fifty-five ($150.00) Dollars and 00/100 will be due and payable for each month owed when the rent is not paid by the fifth (5th) calendar day of the month. - Failure to make the aforementioned rental payment by the close of business on the fifteenth (15th) day of the calendar month will constitute legal notice by the Tenant of intent to cease=renting the premises effective after the end of the current month and also be treated as a default by the Tenant under the terms of the Lease. Renewal Option: Provided Tenant is not in default at the time it exercises its option to renew, Tenant shall have the option to renew this Lease for one (1) additional term of teti (10) years in succession immediately following the expiration of the first term. The option to renew shall be exercised by giving written notice to LANDLORDS, by certified mail, return receipt requested, of such intention to renew not less than ninety (90) days prior to the expiration of the existing term. Such renewal shall be at the terms, conditions and rents set forth herein. 3. SecuriDeposit. Tenant shall further pay to LANDLORDS, prior to any use or occupancy of the Leasehold Premises, a security deposit in the sum of Three Thousand Dollars ($3,000.00), to be held as security for any damages to the Leasehold Premises, or as payment, in;,whole or part, for any costs or expenses incurred by the LANDLORDS resulting from °the failure of Tenant to surrender the premises in the condition described in Paragraph 19 herein. Unless withheld by the LANDLORDS, in whole or in part, by reason of any damage to the Leasehold Premises, the security deposit shall be returned to the Tenant within thirty (30) days after the termination of this Lease, provided the Tenant Page 2 has delivered to the LANDLORDS a forwarding address, in writing, at or prior to the date the Tenant shall surrender the Leasehold Premises to the LANDLORDS. 4. Utilities. D? ring the term of this Lease, the Tenant shall be solely responsible for the payment of any and all utilities of the Leasehold Premises, including, but not limited to, gas, electric, telephone, cable and any service fees required for the installation of these utilities. The Tenant shall also be solely responsible for the payment of any and all water bills, sewer bills and garbage collection costs concerning the Leasehold Premises. 5. Clean and Sanitary Condition. During the term of the Lease, the Tenant shall keep apd maintain the Leasehold Premises and the surrounding area in a clean and sanitary condition at all times, free of all garbage and debris. All garbage and similar debris shalll be deposited by the Tenant in facilities specifically for garbage collection. Tenant shall be responsible fro placing the garbage bags and/or containers and recycling container(s) at the curb for pick-up and to return the containers to their appropriate place. Tenants shall further comply with all local ordinances and regulations imposed by the TOWNSHIP OF EAST PENNSBORO relating to maintaining the Leasehold Premises in a clean and sanitary condition and relating to the collection of garbage and similar debris. Tenant shall be solely liable for any action and/or fines that may be brought by the Township of East Pennsborp, or any other enforcement agency, as a result of the Leasehold Premises not being kept.in a clean and sanitary condition. 6. Repair and Maintenance. The LANDLORDS are ONLY responsible for all structural repairs including structural portions of the roof, foundation, exterior walls, structural floors and ceiling supports. It shall be the Tenant's sole responsibility to keep and maintain the entire Leasehold Premises, and every part thereof, in good condition and repair at all times during the term of the Lease. Tenant shall keep and maintain the Leasehold Premises in a clean, sanitary and safe condition, at all times during the term of the Lease, in accordance with the laws of the Commonwealth of Pennsylvania and in accordance with all directions, rules and regulations of the health officer, fire marshal, building inspector, or other proper officials of the governmental agencies having jurisdiction, at the sole cost and expense of Tenant, and Tenant shall comply with all requirements of law, ordinance and otherwise, affecting said premises. If Tenant refuses or neglects to commence and to complete repairs promptly and adequately, LANDLORDS may, but shall not be required to do so, make and complete said repairs, and Tenant shill pay the cost thereof to LANDLORDS upon demand. At the time of the expiration of the tenancy herein, Tenant shall surrender the premises in good condition, reasonable wear and tear excepted. 7. Liability Insurance. Tenant shall, during the entire term of this Lease, keep in full force and effect a policy of public liability and property damage insurance with respect to the' Leasehold Premises, in which the limits of public liability shall not be less than Five- Hundred Thousand Dollars ($500,000.00) for injury or death to one person in one accident, One Million Dollars ($1,000,000.00) for injury or death per occurrence and Five Hundred Thousand Dollars ($500,000.00) for property damage per occurrence. The policy shall name LANDLORDS, any other parties in interest designated by LANDLORDS, and Tenant as insured, and shall contain a clause that the insurer will not cancel or change the insurance without first giving LANDLORDS thirty (30) days prior Page 3 written notice. The insurance shall be with an insurance company approved by LANDLORDS, and a copy of the paid-up policy evidencing such insurance or a certificate of the insurer certifying the insurance of such policy shall be delivered to LANDLORDS prior to commencement of Tenant's Work and upon renewals not less than thirty (30) days prior to the expiration of such coverage. 8. Personal Property Insurance. Tenant agrees to carry, at its sole expense, insurance against all risks of physical loss, insuring Tenant's fixtures, furnishings, equipment and all other items of personal property of Tenant located on or within the Leasehold Premises, in an amount equal to not less than one hundred percent (100%) of the actual' replacement cost thereof and to furnish LANDLORDS with a certificate evidencing sudh coverage. 9. Tenant agrees that LANDLORDS shall not be liable to Tenant, and Tenant hereby releases LANDLORDS from liability for any personal injury or damage to or loss of personal property in or about the Leased Premises from any cause whatsoever, unless such damage or loss results solely from the gross negligence or willful misconduct of LANDLORDS. LANDLORDS shall not be liable to Tenant for: (i) any damage to property of Tenant or of others located on the Leased Premises, nor the loss of or damage to any property of Tenant or others by theft or otherwise, (ii) any such damage caused by other tenants or persons in the Leased Premises, occupants of adjacent property or the public, or caused by construction of any private, public or quasi-public work, (iii) any latent defect in the Leased Premises or in the building of which they form a part (iv) any consequential damage or lost profits, or (v) any damage or loss to the extent Tenant is compensated therefore by Tenant's insurance or to the extent Tenant could have obtained coverage against such damage or loss at regular rates under commonly available insurance coverage, whether or not any of the foregoing results from LANDLORDS' gross negligence or willful misconduct. All property of Tenant kept or stored on the leased premises shall be so kept or stored at the risk of Tenant only and Tenant shall hold LANDLORDS harmless from all claims arising out of damage to the same, including subrogation claims by Tenant's insurance carrier. 10. Tenant shall maintain insurance with respect to the Leased Premises against loss or damage by fire and all other casualties covered by the standard extended coverage endorsement of the full insurable value of the Improvements thereon, exclusive of foundations and excavations. Such insurance shall be procured from a responsible and financially sound insurance company or companies reasonably satisfactory to LANDLORDS, and, may, in whole or part, be carried as part of a blank policy or policies covering also other property insured by Tenant and shall contain a standard form co- insurance clause. Such insurance policy shall name LANDLORDS as an additional insured, and LANDLORDS' mortgagor as a secured interest. In the event of loss under any such policies, Tenant shall hold the insurance proceeds in trust for the reconstruction and repair of the Leased Premises in accordance with Paragraph 11 herein. 11. If the Leased Premises or any portion thereof shall be damaged or destroyed by fire or other insurable casualty, Tenant shall (except as provided below) promptly, at its sole cost and expense, remove any resulting debris and make such repairs, restoration or rebuilding to the extent that is necessary to provide the Tenant with equal utility, design Page 4 and construction to that which existed prior to such damage or destruction; and this Lease shall remain iim full force and effect and rent shall not abate. If during the lest two years of the Term or the last two years of the Renewal Period the. center on the ,eased Premises is damaged or destroyed to the extent of not less than fiy (50) percent of then current replacement cost thereof, Tenant shall have the right and option to terminate this Lease by giving LANDLORDS notice of such election within thirty (30) days after such damage or destruction shall have taken place, and if such notice is given then this Lease shall terminate as of the date Tenant vacates the Leased Premises, which date shall be no later than thirty (30) days after the giving of such noti ce. Upon the termination of the Lease by Tenant in accordance with the provisions of this Paragraph 11, all right, title and interest of Tenant in and to any insurance proceeds shall be promptly assigned by written instrument to LANDLORDS and any insurance proceeds, less and except insurance proceeds for Tenants personally, inventory or business interruption, shall be promptly paid to LANDLORDS. 12. Off-Set Statement. Tenant agrees within ten (10) days after request therefore by LANDLORDS to execute in recordable form and deliver to LANDLORDS a statement, in writing, certifying (a) that this Lease is in full force and effect, (b) the date of commencement of the term of this Lease, (c) that rent is paid currently without any offset or defense theieto, (d) the amount of rent, if any, paid in advance, (e) whether the Lease has been modified and, if so, identifying the modifications, and (f) that there be no uncured defaults by LANDLORDS or stating those claimed by Tenant, provided, that fact such facts are accurate and ascertainable. 13. Attornment. In the event any proceedings are brought for the foreclosure of, or in the event of the conveyance by deed in lieu of foreclosure of, or in the event of exercise of the power of sale under any mortgage made by LANDLORDS covering the Leasehold Premises, Tenant hereby attorns to, and covenants and agrees to execute an instrument in writing reasonably satisfactory to the new owner whereby Tenant attorns to such successor in interest and recognizes such successor as the LANDLORDS under this Lease. 14. Subordination. Tenant agrees that this Lease shall, at the request of the LANDLORDS, be subordinate to any mortgages or deeds of trust that may hereafter be placed upon said premises and to any and all advances to be made thereunder, and to the interest thereotm, and all renewals, replacements and extensions thereof, provided the mortgagee or trustee named in said mortgages or trust deeds shall agree to recognized tl}e Lease of Tenant in the event of foreclosure if Tenant is not in default. Tenant also agrees that any mortgagee or trustee may elect to have this Lease a prior lien to its mortgage or deed of trust, and in the event of such election, and upon notification by such mortgagee or trustee to Tenant to that effect, this Lease shall be deemed prior in lien to the said mortgage or deed of trust, whether this Lease is dated prior to or subsequent to the date of said mortgage or deed of trust. Tenant agrees that upon the request of LANDLORDS, any mortgagee or any trustee, it shall execute whatever instruments may be required to carry out the intent of this Section. 15. Assignment and Subletting. Tenant agrees not to assign or in any manner transfer this Page 5 Lease or any estate or interest therein by operation of law or otherwise without prior written consent of LANDLORDS, and not to sublet the leased premises or any part(s) thereof or allow anyone to come in with, through or under it without like consent. Consent by LANDLORDS to one or more assignments of this Lease or to one or more sublettings of the leased premises or the collection of rent by LANDLORDS from any assignee or sub-lessee shall not operate to exhaust LANDLORDS' rights under this Article. In the, event that Tenant, with or without the previous consent of LANDLORDS, does assign or in any manner transfer this Lease or any estate or interest therein, Tenant shall in no way be released from any of its obligations under this Lease. 16. Waste or 14uisance. Tenant shall not commit or suffer to be committed any waste upon the Leasehold Premises, and Tenant shall not place a load upon any floor of the Leasehold premises that exceeds the floor load per square foot area which such floor is designed to carry. Tenant shall not use or permit the use of any medium that might constitute a nuisance. 17. Reconstruction of Damaged Premises. In the event the Leasehold Premises shall be partially or totally destroyed by fire or other casualty as to become partially or totally untenantable, then the damage to the Leasehold Premises shall be promptly repaid, unless LANDLORDS shall elect not to rebuild as hereinafter provided, and the fixed minimum rental and other charges shall be abated in proportion to the amount of the Leasehold Premises rendered untenantable. In no event shall LANDLORDS be required to repair or replace Tenant's trade fixtures, furnishings or personal property. If more than Twenty- five percent (25%) of the leased premises or of floor area of the building in which the leased premisos are located shall be damaged or destroyed by fire or other casualty, then LANDLORDS may either elect that the Leasehold Premises be repaired or rebuilt or, at, its sole option; terminate this Lease by giving written notice to Tenant of its election to so terminate, such notice to be given within ninety (90) days after the occurrence of such damage or destruction. 18. Total Condemnation of Leased Premises. If the whole of the Leasehold Premises shall be taken by any public authority under the power of eminent domain, then the term of this Lease shall cease as of the day possession shall be taken by such public authority, and the rent shall be paid up to that day with a proportionate refund by LANDLORDS of such rent as may have been paid in advance for a period subsequent to the day of the taking. 19. Partial Condemnation. If less than the whole but more than Twenty-five percent (25%) of the Leasehold Premises shall be taken under eminent domain, LANDLORDS shall have the right either to terminate this Lease and declare the same null and void, or to restore the remaining portion of the leased premises or the building to a complete architectural uzait. In the event LANDLORDS elects to restore, all of the terms herein provided shall `continue in effect, except the fixed annual rental shall be reduced in proportion to the amount of the leased premise taken. If Twenty-five percent (25%) or less of the Leasehold Premises shall be so taken, the lease term shall cease only as to the part so taken s of the day possession shall be taken by such public. authority, and Tenant shall pay rent up to that date, with appropriate Page 6 refund by LANDLORDS of such rent as may have been paid in advance for a period subsequent to the date of the taking, and thereafter the fixed minimum annual rental shall be reduced in?proportion to the amount of the leased premises taken. In such event, or in the event that!Twenty-five percent (25%) or less of the Leasehold Premises shall be taken, LANDLORDS shall, at its expense, make all necessary repairs or alterations to the basic building; originally installed by LANDLORDS, so as to constitute the remaining leased premises a complete architectural unit. 20. LANDLORDS' and Tenant's Damages. All damages awarded for such taking under the power of eminent domain, whether for the whole or a part of the leased premises, shall belong to and be the property of LANDLORDS whether such damages shall be awarded as compensation for diminution in value to the leasehold or the fee of the premises, and Tenant shall have no claim against either LANDLORDS or the condemning authority with respect thereto; provided, however, that LANDLORDS shall not be entitled to the ward made for depreciation to, and cost of removal of Tenant's stock and fixtures. 21. Default. ALL RIGHTS AND REMEDIES OF LANDLORDS HEREIN ENUMERATED SHALL BE CUMULATIVE AND NONE SHALL EXCLUDE ANY OTHER RIGHTS OR REMEDIES ALLOWED BY LAW. TENANT COVENANTS AND AGREBS THAT IF: 1. TENANT SHALL FAIL, NEGLECT OR REFUSE TO PAY ANY INSTALLMENT OF ALL RENT AT THE TIME AND IN THE AMOUNT AS HEREIN PROVIDED, OR TO PAY ANY OTHER MONIES AGREED BY IT TO BE PAID PROMPTLY WHEN AND AS THE SAME SHALL BECOME DUE AND PAYABLE UNDER THE TERMS HEREOF, AND IF ANY SUCH DEFAULT SHOULD CONTINUE FOR A PERIOD OF MORE THAN TEN (10) DAYS; 2. TENANT SHALL ABANDON OR VACATE THE LEASEHOLD PREMISES OR FAIL TO KEEP THE LEASED PREMISES CONTINUOUSLY AND UNINTERRUPTEDLY OPEN FOR BUSINESS EACH BUSINESS DAY OR SHALL FAIL, NEGLECT OR REFUSE TO KEEP AND PERFORM ANY OF THE OTHER COVENANTS, CONDITIONS, STIPULATIONS OR AGREEMENTS HEREIN CONTAINED AND COVEENANTED AND AGREED TO BE KEPT AND PERFORMED BY IT, AND IN THE EVENT ANY SUCH DEFAULT SHALL CONTINUE FOR A PERIOD OF MORE THAN TEN (10) DAYS AFTER NOTICE THEREOF GIVEN IN WRITING TO TENANT BY LANDLORDS PROVIDED HOWEVER THAT IF THE CAUSE FOR GIVING SUCH NOTICE INVOLVES THE, MAKING OF REPAIRS OR OTHER MATTERS REASONABLE REQUIRING A LONGER PERIOD OF TIME THAT THE PERIOD OF SUCH NOTICE. TENANT SHALL BE DEEMED TO HAVE COMPLIED WITH SUCH NOTICE SO LONG AS IT HAS COMMENCED TO COMPLY WITH SAID NOTICE WITHIN THE PERIOD SET FORTH IN THE NOTICE AND IS DILIGENTLY PROSECUTING COMPLIANCE OF SAID NOTICE OR HAS TAKEN PROPER STEPS OR PROCEEDING UNDER THE CIRCUMSTANCES TO PREVENT THE SEIZURE, DESTRUCTION, ALTERATION OR OTHER INTERFERENCE WITH SAID LEASED PREMISES BY REASON ON NON-COMPLIANCE WITH THE Page 7 REQUIREMENTS OF ANY LAW OR ORDINANCE OR WITH THE RULES, REGULAIONS, OR DIRECTIONS OF ANY GOVERNMENTAL AUTHORITY AS THE CASE MAY BE; THEN THE TENANT DOES HEREBY AUTHORIZE AND FULLY EMPOWER SAID LANDLORDS OR LANDLORDS' AGENT TO CANCEL OR ANNUL THIS LEASE AT ONCE AND TO RE-ENTER AND TAKE POSSESSION OF SAID PREMISES D v1EDIATELY, AND BY FORCE IF NECESSARY, WITHOUT ANY PREVIOUS NOTICE OF INTENTION TO RE- ENTER AND REMOVE ALL PERSONS AND THEIR PROPERTY THEREFROM, AND TO US§ SUCH FORCE AND ASSISTS IN EFFECTING AND PERFECTING SUCH REMOVAL OF SAID TENANT AS MAY BE NECESSARY AND ADVISABL#TO RECOVER AT ONCE FIRST AND EXCLUSIVE POSSESSION OF ALL SAID LEASED PREMISES WHETHER IN POSSESSION OF SAID TENANT OR OF THIRD PERSONS OR OTHERWISE, WITHOUT BEING DEEMED GUILTY OF ANY MANNER OF TRESPASS AND WITHOUT PREJUDICE TO ANY REMEDIES WITH MIGHT OTHERWISE BE USED BY LANDLORDS, IN WHICH EVENT THIS LEASE SHALL TERMINATE AND TENANT SHALL INDEMNIFY THE LANDLORDS AGAINST ALL UNAVOIDABLE LOSS OF RENT WHICH LANDLORDS MAY INCUR BY REASON OF SUCH TERMINATION DURING THE RESIDUE OF THE TERM HEREIN SPECIFIED. THE LANDLORDS MAY, HOWEVER, AT ITS OPTION, AT ANY TIME AFTER SUCH DEFAULT OR VIOLATION OF CONDITION OR COVENANT, RE-ENTER AND TAKE POSSESSION OF SAID PREMISES WITHOUT SUCH RE-ENTRY WORKING A.. FORFEITURE OF THE RENTS TO BE PAID AND THE COVENANTS, AGREEMENTS AND CONDITIONS TO BE KEPT AND PERFORMED BY TENANT FOR THE FULL TERM OF THIS LEASE. IN SUCH EVENT LANDLORDS SHALL HAVE THE RIGHT, BUT NOT THE OBLIGATION; TO DIVIDE OR SUBDIVIDE THE LEASEHOLD PREMISES IN ANY MANNER LANDLORDS MAY DETERMINE AND TO LEASE OR LET THE SAME OR PORTIONS HEREOF FOR SUCH PERIOD OF TIME AND AT SUCH RENTALS AND FOR SUCH USE AND UPON SUCH COVENANTS AND CONDITIONS AS LANDLORDS MAY ELECT, APPLYING THE NET RENTALS FROM SUCH LETTING FIRST TO THE PAYMENT OF LANDLORDS' EXPENSES INCURRED IS DISPOSSESSING TENANT AND THE COST AND EXPENSE OF MAKING SUCH IMPROVEMENTS IN THE LEASEHOLD PREMISES AS MAY BE NECESSARY IN ORDER TO ENABLE LANDLOR TO RE-LET THE SAME, AND TO THE PAYMENT OF BROKERAGE COMMISSIONS OR OTHER NECESSARY EXPENSES OF LANDLORDS IN CONNECTION WITH SUCH RE-LETTING. THE BALANCE, IF ANY, SHALL BE APPLIED BY LESSOR FROM TIME TO TIME ON ACCOUNT OF THE PAYMENTS DUE OR PAABLE BY TENANT HEREUNDER, WITH THE R GHT RESERVED TO LANDLORDS TO BRING SUCH ACTION OR PROCEEDIN S FOR THE RECOVERY OF ANY DEFICITS REMAINING UNPAID AS LANDLORDS MAY DEEM FAVORABLE FROM TIlvIE TO TIME, WITHOUT BEING OBLIGATED TO AWAIT THE END OF THE TERM HEREOF FOR THE FINAL DETERMINATION OF TENANTS ACCOUNT. ANY BALANCE REMAINING HOWEVER, AFTER FULL PAYMENT AND LIQUIDATION OF LANDLORDS' ACCOUNT AS AFORESAID SHALL BE PAID TO TENANT WITH Page 8 THE RIGHT RESERVED TO LANDLORDS AT ANY TIME TO GIVE NOTICE IN WRITING TO TENANT OF LANDLORDS' ELECTION TO CANCEL AND TERMINATE THIS LEASE AND UON GIVING OF SUCH NOTICE AND THE SIMULT OUS PAYMENTS BY LANDLORDS TO TENANT OF ANY CREDIT BALANCE TENANT'S FAVOR THAT MAY AT THE TIME BE OWING TO TENANT SHALL CONTTTUTE A FINAL AND EFFECTIVE CANCELLATION AND TERMINATION OF THIS LEASE AND THE OBLIGATIONS HEREUNDER ON THE PART OF EITHER PARTY TO THE OTHER. LANDLORDS MAY, AT ITS OPTION, WHILE SUCH DEFAULT OR VIOLATION OF COVENANT OR CONDITION CONTINUES, AND AFTER TEN (10) DAYS NOTICE OF ITS INTENTION SO TO DO, DECLARE ALL THE RENT RESERVED FOR THE FULL TERM OF THIS LEASE REMAINING UNPAID DUE AND PAYABLE AT ONCE; AND TENANT DOES HEREBY EMPOWER ANY ATTORNEY OF ANY COURT OF RECORD IN THE STATE OF PENNSYLVANIA OR ELSEWHERE TO APPEAR FOR IT AN WAIVE THE ISSUANCE AND SERVICE OF PROCESS AND CONFESS JUDGMENT AGAINST IT FOR THE WHOLE OR ANY PART OF SAID RENT AND THEREAFTER TO RELEASE ALL' ERRORS AND WARRANT ALL RIGHTS OF APPEAL AND STAY OF EXECUTION, THE INITIAL EXERCISE OR USE OF THIS WARRANT OF ATTORNEY tHALL NOT EXHAUST THE SAME, BUT THE SAME MAY BE USED AND EXERCISED WITHOUT LIMITATION AS OFTEN AS NECESSITYFOR THE USE OF THE SAME ARISE. THE EXERCISE OR USE OF THIS WARRANT OF ATTORNEY SHALL NOT PREVENT LANDLORDS FROM SUBSEQUENTLY TERMINATING THIS LEASE, BY GIVING NOTICE TO TENANT OF ITS ELECTION SO TO DO AND UPON ITS TENDER TO TENANT OF A SUM EQUAL TO THE AMOUNT, IF ANY, PAID BY THE TENANT FOR RENTS ACCRUING AFTER THE DATE OF SUCH TERMINATION. IN ADDITION TO THE OTHER RIGHTS GRANTE TO THE LANDLORDS HEREUNDER, LANDLORDS MAY, AT ITS OPTION, WHILE SUCH DEFAULT OR VIOLATIONS OF CONVENANTS OR CONDITION CONTINUE(S), AND AFTER TEN (10) DAYS' NOTICE OF ITS INTENTIONS TO DO SO, CONFESS JUDGMENT FOR POSSESSION OF THE LEASED PREMISE AND TENANT DOES HEREBY EMPOWER ANY ATTORNEY OF ANY COURT TO RECORD IN THE COMMONWEALTH OF PENNSYLVANIA OR ELSEWHERE TO APPEAR FOR IT AND WATVE'THE ISSUANCE AND SERVICE OF PROCESS AND CONFESS A JUDGMENT IN EJECTMENT. ALSO IN ADDITION TO THE OTHER RIGHTS GRANTED TO LANDLORDS UNDER THIS LEASE, TENANT AGREES THAT IN THE EVENT THAT THE AMOUNTS DUE LANDLORDS UNDER THIS LEASE ARE COLLECTED BY LAW OR THROUGH AN ATTORNEY AT LAW, AND JUDGMENT IS ENTERED IN FAVOR OF LANDLORDS AGAINST TENANT, WHETHER BY CONFESSION OR OTHERWISE, THEN TENANT AGREES TO PAY ALL COSTS OF COLLECTION, INCLUDING ATTORNEY'S FEES IN THE AMOUNT OF TEN PERCENT (10%) OF THE JUDGMENT OR FIVE HUNDRED DOLLARS ($500.00), WHICHEVER IS Page 9 GREATER. 22. Right of Entry. LANDLORDS or LANDLORDS' agent shall have the right to enter the Leasehold Premises at all reasonable times to examine the same, and to make such repairs, alterations, improvements or additions as LANDLORDS may deem necessary or desirable, and LANDLORDS shall be allowed to take all material into and upon said premises that may be required therefore without the same constituting an eviction of Tenant in whole or in part, and the rent reserved shall in now wise abate while said repairs, alterations, improvements or additions are being made, by reason of loss or interruption of business of Tenant, or otherwise. 23. Loss and Damage to Tenant's Property. The LANDLORDS shall not be responsible~ or liable to the Tenant for any loss or damage that may be occasioned by or through the' acts or omissions of persons occupying adjoining premises or any part of the premises adjacent to the Leasehold Premises or any part, or for any loss or damages resulting to the Tenant or its property from bursting, stoppage or leaking of water, gas, sewer or steam pipes or for any damage or loss of property within the Leasehold Premises from any cause whatsoever. 24. Notice by Tenant. Tenant shall give immediate notice to LANDLORDS in case of fire or accidents in the leased premises or in the building of which the premises are a part or of defects therein or in any fixtures or equipment. 25. Holding Over. Any holding over after the expiration of the term hereof with the consent of the.LANDLORDS, shall be construed to be a tenancy from month to month (at twice the monthly minimum rental herein specified). 26. Successors. All rights and liabilities herein given to, or imposed upon, the respective parties hereto shall extend to and bind the several respective heirs, executors, administrators, successors, and assigns of the said parties; and if there shall be more than one Tenant, they shall be bound jointly and severally by the terms, covenants and agreements herein. No rights, however, shall inure to the benefit of any assignee of Tenant unless the assignment to such assignee has been approved by LANDLORDS in writing as provided in Paragraph 15 herein. 27. LANDLORDS' Covenant. Upon payment by the Tenant of the rents herein provided, and upon the observance and performance of all the covenants, terms and conditions on Tenant's part to be observed and performed, Tenant shall peacefully and quietly hold and enjoy the leased premises for the term hereby demised without hindrance or interruption by LANDLORDS or any other person or persons lawfully or equitably claiming by, through or under the LANDLORDS, subject nevertheless to the terms and conditions of this Lease, anq any mortgages to which this Lease is subordinate. 28. Waiver. Ode or more waivers of any covenant or condition by LANDLORDS shall not be construed as a waiver of a subsequent breach of the same covenant or condition, and the consent or approval by LANDLORDS to or of any act by Tenant requiring LANDLORDS' consent or approval shall not be deemed to render unnecessary LANDLORDS' consent or approval to or of any subsequent similar act by Tenant. No Page 10 breach of a covenant or condition of this Lease shall be deemed to have been waived by LANDLORDIS, unless such waiver is in writing and signed by LANDLORDS. 29. Notices. Any notice, demand, request or other instrument which may be or is required to be?given under this Lease shall be sent by United States certified mail, return receipt requested, postage prepaid and shall be addressed (a) if to LANDLORDS, at the address first above stated, or at such other address as LANDLORDS shall designate by written notice, (b) if to Tenant, to the leased premises or at such other address as Tenant shall designate by written notice, and shall be effective upon deposit with the U.S. Postal Department. 30. Captions and Section Numbers. The captions, section numbers, and article numbers, appearing in this Lease are inserted only as a matter of convenience and in no way define, limit, construe or describe the scope or intent of such sections of this Lease nor in any way affect this Lease. 31. Recording. Tenant shall not record this Lease without the written consent of LANDLORD; however, upon the request of either party hereto, the other party shall join in the execution of a memorandum or so-called "short form" of this Lease for the purpose of recordation. Said memorandum or short form of this Lease shall describe the parties, the Leasehold Premises, the term of this Lease, and special provisions, and shall incorporate this Lease by reference. 32. Transfer of LANDLORDS' Interest. In the event of any transfer or transfers of LANDLORDS' interest in the Leasehold Premises, the transferor shall be automatically relieved of any and, all obligations on the part of LANDLORDS accruing from and after the date of such transfer, including, but not limited to, any obligation to Tenant with respect to the security deposit referred to in Paragraph 3 of this Lease upon assignment 'of the same to the transferee, provided that the interest of the transferor, as LANDLORDS, in any funds then in the hands of LANDLORDS in which Tenant has an interest shall be turned over, subject to such interest, to the ten transferee. No holder of a mortgage to which this Lease is or may be subordinate shall be responsible in connection with the security deposited hereunder, unless such mortgagee or hold of such deed of trust shall have actually teceived the security deposited hereunder. a 33. Accord and Satisfaction. No payment by Tenant or receipt by LANDLORDS of a lessor amount:Aan the monthly rent herein stipulated shall be deemed to be other than on account of the "earliest stipulated rent, nor shall any endorsement or statement of any check or any letter accompanying any check or any payment as rent be deemed an accord and satisfaction, and LANDLORDS shall accept such check or payment without prejudice to LANDLORDS' right to cover the balance of such rent or pursue any other remedy in this Lease provided. 34. Laws of the Commonwealth of Penns,, llvania. This Lease shall be governed by and construed in accordance with the laws of the Commonwealth of Pennsylvania. If any provision of this Lease or the application thereof to any person or circumstances shall, to any extent, be invalid or unenforceable, the remainder of this Lease shall not be affected thereby and each provision of the Lease shall be valid and enforceable to the fullest Page 11 extent permitted by law. 35. Entire Agreement. This Lease and the exhibits, if any, attached hereto and forming a part thereof, set forth all the covenants, promises, agreements, conditions and understandings between LANDLORDS and Tenant concerning the leased premises and their are not covenants, promises, agreements, conditions or understandings, either oral' or written, between them other than herein set forth. No alterations, amendment, change or addition to this Lease shall be binding upon LANDLORDS or Tenant unless reduced to writing and signed by each party. 36. Taxes. 'During the term of this Lease, Tenant shall be responsible for and shall pay before delinquency all municipal, county or state taxes of any kind, but not limited to, real estate taxes. 37. New Taxes. Should any governmental taxing authority acting under any present or future law, ordinance or regulation, levy, assess or impose a tax, excise, assessment and/or any business and/or occupation taxes (other than income or fianchise tax) upon or against the rentals payable by Tenant to LANDLORDS, either by way of substitution or in addition to any existing tax on land and buildings or otherwise, Tenant shall be responsible for and shall pay such tax, excise, assessment, and any business and occupation taxes levied directly against the Tenant, or shall reimburse LANDLORDS for the amount thereof, as the case may be, as additional rent, on or before the date that any fine, penalty or interest would be added thereto for non-payment. Tenant shall also pay its pro-rata share of any tax or charge levied in lieu of Real Estate taxes. r 38. Heirs and Successors. This agreement shall be binding on and shall inure to the benefit of the parties hereto, their respective heirs, successors, personal representatives and assigns. 39. Counterparts. This Lease may be signed in one or more counterparts, and all such counterparts shall form but one integrated agreement. This Lease may be executed by facsimile signatures. 40. Right of First Refusal: LANDLORDS agrees that LANDLORDS shall not, during the Term or any Renewal Period, sell or contract to sell the Leased Premises to any party without first offering to sell the Leased Premises to Tenant for a cash price equal to the price ultimately paid by such purchasing party. LANDLORDS shall make such offer by sending written notice thereof to Tenant. If accepted via written notice within fifteen (15) days, then Tenant has forty-five (45) days to settle. Failure to settle by that time releases LANDLORDS from any further or future obligation under this Paragraph 40. If Tenant shall not thereafter send written notice to LANDLORDS accepting LANDLORDS' offer within fifteen (15) days following Tenant's receipt of LANDLORDS offer, then LANDLORDS shall have one hundred eighty (180) days from the expiration of such fifteen (15) day period to enter into a contract to sell the Leased Premises to any party, and may thereafter sell the Leased Premises pursuant to such contract, free of the restrictions imposed hereby. If LANDLORDS shall not enter into a THE REMAINDER OF PAGE IS INTENTIONALLY BLANK Page 12 contract to se6 the Leased Premises within such one hundred eighty (180) day period, the Leased Premises shall again become subject to the provisions of this Paragraph 40. IN WITNESS WHEREOF, the parties hereto have each caused this Lease to be executed as of the day and year first above written. WITNESS LANDLORDS: WITNESS TENANT: BRANDON C. POWERS Page 13 Addendum to Triple Net lease LANDLORD(S): Guiseppe Barone and Giovanni Barone ADDRESS: 1400 Old Reliance Road, Middletown, County of Dauphin, PA, 17057 TENET: Brandon Powers ADDRESS: 383 N. 26a' Street, Camp Hill, County of Cumberland, PA, 17011 All terms and conditions from "Triple Net Lease" between above parties for this property are herein incorporated except where they conflict with following provision. Where there is a conflict between this "Addendum" and "Triple Net Lease", terms herein shall rule. 1) TERM: The term shall be 5 1/2 years, commencing on 1 July 2008 and ending on 31 December 2012. 2) RENEWAL OPTION: Provided the Tenant is not in default at the time it exercises its option to renew, Tenant shall have the option to renew this 1 lease for one (1) additional term of five (5) years in succession immediately following the expiration of the first term. All other terms of this section apply from original lease. 3) RENT: Minimum monthly rental payments for years 2013 through 2017 shall come into effect only if lease is renewed through the above mentioned renewal option. 4) HOLDING OVER: Any holding over after expiration of the term hereof with the consent of the LANDLORD(S), shall be construed to be tenancy from month to month at the last minimum payment stipulated in the LEASE. If holdover lasts more that 120 days, LANDLORD(S) shall have the right to increase the minimum monthly rental payment to one and one half (1 '/2) of minimum monthly rental payment herein specified. THE REMAINDER OF THIS PAGE IS INTENTIONALLY BLANK IN WITNESS WHEREOF, the parties hereto have each caused this ADDENDUM to be executed as of the day and year first above written. WITNESS WITNESS LANDLORD(S): G PPE BARONE IOVANNIBARONE TENANT: BRANDON C. POWERS Guiseppe Barone 1400 Old Reliance Road Middletown, PA 17057 (717) 514-5650 (cell) September 11, 2009 VIA CERTIFIED MAIL Brandon C. Powers cto Brother's Pizza 700 Valley Road Enola, PA 17025 RE: 700 Valley Road Enola, PA Dear Brandon: I have not yet received your rent payment for the month of September, 2009 relative to the above-referenced premise as of the date of this correspondence. Likewise, I did not receive the last eleven (11) months' rent until after the 5th of each month. In accordance with the terms of the Lease, I request that you immediately forward the amount of $3,150.00, which sum reflects this month's rent in the amount of $3,000.00, in addition to the applicable late fee for this month in the amount of $150.00. In addition, I indicated to you in my letter in August, 2009, that you have not yet paid the 2009 property taxes. According to the terms of the lease, you are responsible to pay all of the real and personal property taxes levied or assessed against said premise. I request that you immediately provide me with proof of payment of taxes for 2009. You continue to be in default of the Lease as set forth above. I expect full satisfaction of the above within ten (10) days of receipt of this correspondence. Otherwise, I will promptly move forward to take possession of the premise, as well as seek to collect judgment and pursue any and all legal remedies available, including attorney fees and costs. Sincerely, GUISEPPE BARONE EXHIBIT "C" V~ ?o F 0 _ CIAL USE rn 0025 ru c ra1w FM q, , $Q . ?N O t o tF ors "„cis. rw $2. At POW" ? O (Lnd D"P.'-qyuq dj i .:111 ` f l N Told posup d Fes $ ' i? ti ° -- o ......, or PO am Na 7 VERIFICATION We verify that the statements made in the foregoing Complaint in Ejectment are true and correct. We understand that false statements herein are made subject to the penalties of 18 Pa. C.S. Section 4904 relating to unsworn falsification to authorities. P -- Date Date ck,111w r.T p? e u n?. RL D ,,- iHE r ?y;Aply r 2909 SE- P 29 P G i fl ?W? 0 C#30IV p1# ?31dPO d(Ifia OW4,;/ Caul Ste lp c 914? t C c?M i cry c t ?, ?Z ? Cu?oV)444T 7'3 -V- E vS p4o, * ?6-33 '2a"Da"A r how elL CZ!(n)f)cAfic 6-P AVPz e'5seS Ad 7,/-w ?yuo ate 9Z LlA? ??? yiti??t? ?9 15 ;?NvQ T?4A-i I-tkc A.))-21-c55 sF 9t-*c,4'DAN" - 15: 318 3 ". Zlb-m 'Sr c%r(_j ? ,•? ti ?s PfTr?Clr 4Z.Zt FILE! _. 29 S'r`i Oc CUM ? 7 ?? Sheriffs Office of Cumberland County R Thomas Kline F~Lf=r~ , y;_,_,~.h Sheriff ..• Er t ~,~•_ o`''' ~; i'~rrrabr~rF~i ~~ T~~ }~ ~` ,b^,T~Y Ronny R Anderson ~ d ChiefDepury - Z~tu~~`t~`~ -3 ~i' i~~ ~~ .~ Jody S Smith Civil Process Sergeant o~ ~,r~~Fr-~ .:~~ {,'1~:~ ~ ,,;-~~, Y y Edward L Schorpp v Solicitor Guisepee Barone vs. Case Number Brandon C. Powers 2009-6533 SHERIFF'S RETURN OF SERVICE 10!23/2009 03:35 PM -Valerie Weary, Deputy Sheriff, who being duly sworn according to law, states that on October 23, 2009 at 1535 hours, she served a true copy of the within Complaint in Ejectment, upon the within named defendant, to wit: Brandon C. Powers, by making known unto himself personally, at 700 Valley Street Enola, Cumberland County, Pennsylvania 17025 its contents and at the same time handing to him personally the said true and correct copy of the same. SHERIFF COST: $109.44 SO ANSWERS, ~~~~~ October 30, 2009 R THOMAS KLINE, SHERIFF By '~ ~~ Depu y Sheriff GUISEPPE BARONE and GIOVANNI IN THE COURT OF COMMON PLEAS BARONE, CUMBERLAND COUNTY, PENNSYLVANIA PLAINTIFFS VS. NO. 09-6533 CIVIL TERM BRANDON C. POWERS, ,_? c r - M DEFENDANT ACTION IN EJECTMENT M w rn Y e rn ? t (/)r... .. -<> +.? CDD PRAECIPE FOR WRIT OF POSSESSION ? co M...;`' UPON A CONFESSED JUDGMENT ? TO THE PROTHONOTARY: Please issue a Writ of Possession upon the judgment in ejectment entered by confession in the above matter for the real property located at 700 Valley Street, East Pennsboro Township, Cumberland. County, Pennsylvania. I certify that: (1) this Praecipe is based upon a judgment entered by confession, and (2) notice pursuant to Rule 2973.2 has been served at least thirty (30) days prior to the filing of this Praecipe as evidenced by a return of service filed of record. Respectfully submitted, 1 Robert P. Kline, Esquire Attorney ID #58798 Kline Law Office Y 'ay, 00 714 Bridge Street P? Post Office Box 461 01A7 New Cumberland, PA 17070 'k k'4 0 h 5jd (717) 770-2540 cos-4--s Q F f 109. ya ,? o, y? P fat.o6,Due- Co CERTIFICATE OF SERVICE I hereby certify that I served a true and correct copy of the foregoing Praecipe for Writ of Possession Upon a Confessed Judgment upon Defendant, by depositing same in the United States Mail, first class, postage pre-paid on the 17th day of June, 2011, from New Cumberland, Pennsylvania, addressed as follows: Brandon C. Powers 700 Valley Road Enola, PA 17025 Brandon C. Powers 383 N. 26`" Street Camp Hill, PA 17011 Joseph N. Gothie, Esquire Gothie Van Allen, LLC 111 E. Market Street, Suite 101 York, PA 17401 r I W, 4 _-'- _?- ROBE T P. KLINE, ESQUIRE 714 Bridge Street Post Office Box 461 New Cumberland, PA 17070-0461 (717) 770-2540 Attorney for Plaintiffs I of 2 WRIT OF POSSESSION (Ejectment Proceedings PRCP3160-3165 etc.) IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA GUISEPPE BARONE and GIOVANNI BARONE VS. No. 09-6533 Civil Term_ BRANDON C. POWERS Costs Attorney's $ 160.94 Plaintiff's $ Prothonotary $ 2.00 COMMONWEALTH OF PENNSYLVANIA: COUNTY OF CUMBERLAND: To the Sheriff of Cumberland County, Pennsylvania (I) To satisfy the judgment for possession in the above matter you are directed to deliver possession of the following described property to: (Plaintiff (s)) GUISEPPE BARONE and GIOVANNI BARONE being: (Premises as follows): THE REAL PROPERTY LOCATED AT 700 VALLEY STREET, EAST PENNSBORO TOWNSHIP, CUMBERLAND COUNTY, PENNSYLVANIA (2) To satisfy the costs against the defendant (s) you are directed to levy upon any property of the defendant (s) and sell his/her (or their) interest therein. A tll_ David D. Buell, Prothonotary, Common Pleas Court of Cumberland County, PA Date JUNE 17, 2011 (Seal) 2 of 2 No 09-6533 Civil Term IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA GUISEPPE BARONE and GIOVANNI BARONE vs. BRANDON C. POWERS WRIT OF POSSESSION P.R.C.P. 3160-3165 ETC. Costs Att'y $ 160.94 Plff (sj $ Prothy $ 2.00 Sheriff $ Plaintiff (s) attorney name and address: ROBERT P. KLINE, ESQUIRE KLINE LAW OFFICE, 714 BRIDGE STREET, P.O. BOX 461, NEW CUMBERLAND, PA 17070 Attorney for Plaintiff (s) Where papers may be served By virtue of this writ, on the day of I caused the within named _ to have possession of the premises described with the appurtenances, and Sworn and subscribed to before me this Day of Prothonotary So Answers, Sheriff By Deputy . L,. Ronny R Anderson Sheriff Jody S Smith Chief Deputy Richard W Stewart Solicitor SHERIFF'S OFFICE OF CUMBERLAND COUNTY 1, 1 4:,IIf! 1q,t' ?. fiG FILJ !! %JUL 12 Ply 2: 0; G" 8EP% 'EtiNS )'L'IB Guisepee Barone vs Case Number . Brandon C. Powers 2009-6533 SHERIFF'S RETURN OF SERVICE 07107/2011 By virtue of this writ, Ronny R. Anderson, Sheriff caused the within named Plaintiff to have possession of the premises described as 700 Valley Street, Enola, PA 17025. SHERIFF COST: $90.00 SO ANSWERS, 4n?/r. July 08, 2011 RON W R ANDERSON, SHERIFF i SERRATELLI, SCHIFFMAN & BROWN, P. C. Paige Macdonald-Matthes, Esquire Supreme Court ID No. 66266 2080 Linglestown Road Harrisburg, PA 17110 (717) 540-9170 (717) 540-5481 facsimile Email: PMacdonald-Matthes2 be-law. com Attorneys for Defendant FILED-OFFICE- THE PROTHONOTAR ?QI I JUL 22 PM 3: 46 C UMBERLANO OOUJ I-?. PENNSYLVANIA GUISEPPF. BARONE AND GIOVANNI BARONE, PLAINTIFFS/RESPONDENTS V. BRANDON C. POWERS, DEFENDANT/PETITIONER : IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA : DOCKET No. 2009-6533 DEFENDANT. BRANDON C. POWERS'S PETITION TO STRIKE. OR ALTERNATIVELY OPEN CONFESSED JUDGMENT AND REQUEST FOR STAY OF EXECUTION AND NOW, comes Defendant/Petitioner, Brandon C. Powers, ("Petitioner") by and through his counsel, Serratelli, Schiffman & Brown, P.C., and files his Petition to Strike, or Alternatively Open Confessed Judgment and Request for Stay of Execution, and in support thereof avers as follows: Introduction On June 17, 2011, Plaintiffs/Respondents, Guiseppe Barone and Giovanni Barone (hereinafter collectively "Respondents") filed a Praecipe for Writ of Possession Upon a Confessed Judgment. The purported "confessed judgment" upon which the Respondents' June 17, 2011 Praecipe for Writ of Execution was issued is actually a confessed judgment that had been entered against Petitioner in September 2009 (hereinafter "September 2009 Confessed Judgment") and that was subsequently satisfied by the Petitioner in October 2009. Unbeknownst to Petitioner, Respondents never caused the September 2009 Judgment to be satisfied in direct contravention of Petitioner's agreement with Respondents. Between October 2009 and June 17, 2011, Petitioner continued to operate pursuant to the terms of the Parties' Lease Agreement. Upon information and belief, Respondents' June 17, 2011 filing of a Praecipe for Writ of Possession was not the result of Petitioner's non-payment of rent or any other event of default under the Lease Agreement, but rather was based on Respondents' apparent dissatisfaction with the fact that Petitioner determined to exercise his right under the Lease Agreement to assign the Lease Agreement to a third party. Rather than properly filing a new legal action against Petitioner (either in Ejectment or by way of attempting to Confess Judgment in Ejectment) Respondents, acting by and through their counsel, Robert P. Kline, Esquire improperly and unlawfully used the September 2009 Judgment (which should have been properly satisfied in October 2009) as their vehicle to eject Petitioner from the Lease Premises. On July 7, 2011, the Cumberland County Sheriff's Office executed upon Respondents' improperly filed Praecipe for Writ of Possession and ejected Petitioner from the Lease Premises. In their haste to confess judgment, Respondents, together with their counsel, have failed to abide by the strict statutory requirements for entering judgment by confession in the Commonwealth of Pennsylvania, and have taken further steps to remove Petitioner from the Lease Premises that are not authorized by the warrant of attorney. Because Respondents have 2 failed to abide by the strict requirements imposed for confessing judgment, as more fully discussed at length herein, the confessed judgment in ejectment must be stricken, or in the alternative opened and Petitioner permitted to re-enter the Lease Premises. Parties 1. Petitioner is Brandon C. Powers, an adult individual who resides at 851 Kiehl Drive, Lemoyne, Cumberland County, Pennsylvania, 17043. 2. Respondents are Guiseppe Barone and Giovanni Barone, adult individuals who reside at 1400 Old Reliance Road, Middletown, Dauphin County, Pennsylvania 17057. 3. Petitioner and Respondents are hereinafter referred to collectively as the "Parties". Background On The Judgment Previously Entered By Respondents In order to fully understand and appreciate the details that surround Respondents' June 17, 2011, "Praecipe for Writ of Possession Upon a Confessed Judgment" and subsequent July 7, 2011 ejectment of Petitioner from the Lease Premises, a brief background of the Parties' business relationship is in order. 4. On or about July 1, 2008, the Parties entered into a "Triple Net Commercial Lease" Agreement (hereinafter "Lease Agreement") for property located at 700 Valley Road, Enola, Cumberland County, Pennsylvania ("Lease Premises"). A true and correct copy of the Lease Agreement is attached hereto and is marked as Exhibit "A". 5. Between July 1, 2008 and July 7, 2011, Petitioner operated a pizzeria at the Lease Premises. 6. On or about September 29, 2009, Respondents determined to confess judgment against Petitioner by way of the filing of a Complaint in Ejectment based on Respondents' allegations of unpaid rent for September 2009 and further allegations of unpaid 2009 real estate taxes (which claims were false as the real estate taxes would not have even been technically past due as of the date of the date of the Complaint in Ejectment was filed by Respondents!). 7. On October 9, 2009, Respondents' counsel, Robert P. Kline, Esquire sent a letter to Petitioner's former counsel, Joseph N. Gothie, Esquire' in which Attorney Kline set forth his clients' demands for their agreement to forebear on executing on the September 2009 Judgment. Specifically, Respondents demanded that "on or before October 16, 2009, Petitioner pay Respondents the sum of $6,359.42 for October 2009 rent and 2009 taxes; court costs and sheriff's deposit in the sum of $128.00; and attorney's fees to date in the sum of $750.00. A true and correct copy of Attorney Kline's October 9, 2009, letter is attached hereto and is marked as Exhibit "B". 8. On November 2, 2009, Petitioner satisfied the Respondents' financial demands, as set forth in Attorney Kline's October 9, 2009 letter, as evidenced by copies of the cancelled check(s) attached hereto and collectively marked as Exhibit "C". ' Attorney Gothie is a member of the York County Bar Association and has offices located at 11 East Market Street, York, PA. 4 9. On October 22, 2009, Attorney Klein sent a second letter to Attorney Gothie in which he, inter alia, acknowledged his clients' receipt of all payments that were demanded in his October 9, 2009 letter. A true and correct copy of Attorney Kline's October 22, 2009 letter is attached hereto and is marked as Exhibit "D". 10. In addition to acknowledging his clients' receipt of all sums allegedly due and owing his clients and/or that were demanded by Attorney Kline in his October 9, 2009, letter, Attorney Kline further three (3) additional "conditions" for his clients' purported agreement to forebear on executing on the confessed judgment for possession, to wit: (a) timely payments of rent for the "next six (6) consecutive months"; (b) payment of 2009-10 school tax in the face amount of $3,053.45 prior to the expiration of the face period; (c) compliance with the Lease terms; and not "challenge in any manner the confession of judgment for possession."Z 11. In his October 22, 2009, letter Attorney Kline specifically stated as follows: "In the event that your client fails to meet these conditions, my client client [sic] will request that writ of execution be issued on the judgment for possession. However, if your client successfully meets the conditions outlined above, shortly after April 1 2009, the judgment for possession will be satisfied of record and withdrawn. (Emphasis added). 12. Petitioner complied with each and every one of the "conditions" set forth in Attorney Kline's October 22, 2009 letter. 2 Petitioner now believes and therefore avers that Attorney Kline included this additional "condition" as a direct and proximate result of Attorney Kline's understanding that the September 29, 2009 Confessed Judgment for Possession would not withstand a procedural challenge. Petitioner further believes and therefore avers that the imposition of this "condition" is legally impermissible. 5 13. Apparently, and unbeknownst to Petitioner, Attorney Kline failed to mark the judgment for possession entered against Petitioner at the above captioned docket number as satisfied, discontinued and/or withdrawn "shortly after April 1, 2009," in direct contravention to the terms set forth in Attorney Kline's October 22, 2009 letter. 14. Between November 2, 2009 and July 7, 2011, Petitioner complied with the terms set forth in the Lease Agreement, including but not limited to the timely payment of rent. 15. Beginning in March 4, 2011, Petitioner advised Respondents of his intention to sell his pizzeria business and assign the Lease Agreement. Respondents did not raise any objection to Petitioner's stated intentions. 16. On or about May 8, 2011, Petitioner sold his pizzeria business to Veronica Arevalo and Varonio Hernandez (hereinafter collectively "Buyers") and the terms of the sale were memorialized in a duly executed Asset Purchase Agreement, a copy of which is attached hereto and is marked as Exhibit "E". 17. On or about May 8, 2011, Petitioner also entered into an Agreement of Sublease with Buyers for the Lease Premises. A copy of the Agreement of Sublease is attached hereto and is marked as Exhibit "F" 18. On or about May 8, 2011, Petitioner personally delivered copies of the Asset Purchase Agreement and Agreement of Sublease to Respondent, Giuseppe Barone (hereinafter individually referred to as "Joe") at Joe's pizzeria located at Third and Riley Streets in Harrisburg, PA and requested that Joe sign the Sublease 6 Agreement. Joe refused Petitioner's request in direct contravention to the terms of the Lease Agreement and well-established Pennsylvania landlord-tenant law. 19. Notwithstanding the fact that Petitioner assigned the Lease Agreement to Buyers as of May 8, 2011, Petitioner paid Respondents rent for the Lease Premises in May 2011. Respondents cashed Petitioner's check. 3 20. In early June, 2011, the Buyers personally went to Joe and tried to pay him June 2011 rent for the Lease Premises. Joe refused to accept the Buyers' check. 21. As a direct and proximate result of Joe's refusal to accept Buyers' check, the Buyers' gave Petitioner a check for the rent and Petitioner in turn issued a check to Respondents' for the June 2011 rent. 22. On June 9, 2011, Joe sent Petitioner a text message stating that he "need[ed] a cashier's check from [Petitioner]" -this notwithstanding the fact that the Lease Agreement does not require Petitioner to make rent payments via cashier's check and further notwithstanding the fact that Respondents had previously accepted personal checks from Petitioner. A copy of the text message from Respondent is not attached hereto, but has been saved on Petitioner's cell phone and Petitioner's cell phone will be produced to the Court at the time of hearing. 23. On June 16, 2011, Petitioner obtained a certified check for the rent and mailed the same to Respondents via certified mail on June 16, 2011. As evidenced by the return receipt card, Joe received the check on June 18, 2011. True and correct copies of the certified check and certified mail receipt are attached hereto and collectively marked as Exhibit "H". s A copy of this check has been ordered from the Bank and will be supplemented when we receive same. 7 24. In early July, 2011, the Buyers once again attempted to pay Respondents the rent and Respondents refused Buyers rent payment. 25. As a direct and proximate result of Respondent's refusal to accept Buyers' check, the Buyers' gave Petitioner a check for the rent and Petitioner in turn went to Metro Bank to obtain a certified check to pay Respondents. A true and correct copy of the Buyer's check made payable to Petitioner, certified check made payable to Respondents, and the certified mail receipts are attached hereto and collectively marked as "Exhibit I". 26. Shortly after Petitioner went to the Post Office on July 7, 2011, the Cumberland County Sheriff s office arrived at the Lease Premises to take possession pursuant to a Praecipe for Writ of Execution that had been filed by Respondents on June 17, 2011. See Exhibit "J". 27. Upon learning of the sheriffs actions, Petitioner retrieved the July 7, 2011 certified check back from the post office. 1. Petition to Strike Confessed Judgment 28. The averments set forth in paragraphs 1 through 27 are incorporated by reference as if more fully set forth at length herein. 29. On June 17, 2011, Respondents' counsel apparently filed a Praecipe for Writ of Execution to the above captioned docket notwithstanding the fact that the above 8 captioned docket number was to have been marked satisfied and discontinued by Respondent's counsel "shortly after April 1 2009", see Exhibit "E". 30. Petitioner was not properly served with a "Notice Under Rule 2973.2 of Judgment and Execution" in direct contravention to the Rules of Civil Procedure. 31. The Cumberland County Sheriff executed on the Praecipe for Writ of Execution on July 7, 2011. 32. Petitioner's Petition to Strike is timely filed. See Magee v. 1G. Wentworth & Co. Inc., 2000 Pa. Super. 300, 761 A.2d 159,161 (2000). 33. A review of the Complaint in Confession of Judgment and corresponding confession of judgment documents filed by Respondents' counsel Plaintiff reveal that there are fatal defects and/or irregularities which appear on the record, to wit: a. Respondents failed to mark the above captioned docket number satisfied and discontinued shortly after April 1, 2009, pursuant to the Agreement reached between the Parties and instead improperly and/or unlawfully utilized that existing judgment docket to file a "Praecipe for Writ of Possession" on June 17, 2009. See Exhibit "J"; b. The underlying Complaint in Confession of Judgment in Execution that filed on September 29, 2009, contained a claim for taxes that were not past due as of the date the Complaint was filed. See Exhibit "K" attached hereto. c. 42 Pa. C.S. §2737.1, which was enacted on December 20, 2000, and became effective February 2001, provides in relevant part that: At the time that a creditor files for a judgment by confession under Section 2737(3) 9 (relating to powers and duties of the office of the Prothonotary), the creditor filing the judgment shall provide the Debtor with the written instructions regarding the procedure to follow to strike the judgment... The instructions provided to the Debtor shall explain to the Debtor that under this Section he is entitled to costs and reasonable attorney's fees as determined by the Court if he was incorrectly identified. Pursuant to Pa.R.C.P. 2959, a defendant must also be provided with written instructions regarding the procedure to follow to strike the judgment, and an explanation that a defendant that was incorrectly notified and had a confession of judgment entered against it, is entitled to costs and reasonable attorney's fees as determined by the Court. A review of the Notice provided by Respondent to Petitioner on or about September 29, 2009, attached hereto as Exhibit "K" reveals that Respondents and/or Respondents' counsel failed to comply with the statutorily required Notice provision, as set forth in 42 Pa. C.S. §2737.1 and the applicable rule of civil procedure, Pa. R.Civ. P. 2959, and thus there is a fatal defect on the face of the record. See First Union National Bank et al. v. Portside Refrigerated Services Inc., 2003 Pa. Super. 244 (2003); d. Pursuant to the terms of the Lease Agreement, Petitioner was not in default as that term is defined by Paragraph 21 of the Lease Agreement as of the date the Respondents' authorized their counsel to file the Praecipe for Writ of Possession Upon Confessed Judgment"; 10 e. Assuming arguendo that there was any default (which Petitioner does not concede), pursuant to the terms of Paragraph 21 of the Lease Agreement, in the event of default Respondents were required to provide written notice to Petitioner of such alleged default and provide Petitioner with ten (10) days to cure. No such written notice was provided by Respondents; f. It is evident from the face of the record instrument upon which Respondents have both confessed judgment and recently executed upon said confessed judgment that the ejectment of Petitioner from the Lease Premises is not authorized by the warrant to confess judgment; g. The documents that have been served on Petitioner in general, and specifically Exhibit "K" attached hereto do not provide Respondents with the authority to file a Praecipe for Writ of Possession on June 17, 2011, for a judgment was satisfied as of October 22, 2009; and h. Pennsylvania law is clear that the court may grant a petition to strike off a judgment if a fatal defect or irregularity appears on the record. See e.g., First Union National Bank et.al. v. Portside Refrigerated Services, Inc., 2003 Pa. Super. 244 (2003); Resolution Trust Corp. v. Copley Qu-Wayne Associates, 546 Pa. 98, 683 A.2d 269, 273 (1996). 34. Petitioner has been and will continue to be prejudiced unless Respondents' confessed judgment and corresponding improperly filed Praecipe for Writ of Possession is stricken. 11 WHEREFORE, Petitioner, Brandon C. Powers, respectfully requests that this Honorable Court grant his Petition to Strike, strike off the confessed judgment by Respondents against Petitioner and the corresponding Praecipe for Writ of Possession, immediately reinstate Petitioner in the Lease Premises, and further award Petitioner all such other relief as is proper and just, included but not limited to counsel fees and costs incurred in the filing of this Petition. II. In the Alternative, Petition to Open Confessed Judement 35. The averments set forth in paragraphs 1 through 34 are incorporated by reference as if more fully set forth at length herein. 36. In the alternative, the Petitioner has good and meritorious defenses that warrant the opening of the confessed judgment to wit: a. The underlying Complaint in Confession of Judgment in Execution that filed on September 29, 2009, contained a claim for taxes that were not past due as of the date the Complaint was filed; b. 42 Pa. C.S. §2737.1, which was enacted on December 20, 2000, and became effective February 2001, provides that: At the time that a creditor files for a judgment by confession under Section 2737(3) (relating to powers and duties of the office of the Prothonotary), the creditor filing the judgment shall provide the Debtor with the written instructions regarding the procedure to follow to strike the judgment. A Debtor who has been incorrectly identified and had a confession of judgment entered against him shall be entitled to costs and reasonable attorney's fees as determined by the Court. The instructions 12 provided to the Debtor shall explain to the Debtor that under this Section he is entitled to costs and reasonable attorney's fees as determined by the Court if he was incorrectly identified. Pursuant to Pa. R.Civ.P 2959, a defendant must also be provided with written instructions regarding the procedure to follow to strike the judgment, and an explanation that a defendant that was incorrectly notified and had a confession of judgment entered against it, is entitled to costs and reasonable attorney's fees as determined by the Court. A review of the Notice provided by Respondent to Petitioner on or about September 29, 2009, attached hereto as Exhibit "K" reveals that Respondents and/or Respondents' counsel failed to comply with the statutorily required Notice provision, as set forth in 42 Pa. C.S. §2737.1 and Pa. R.Civ. P. 2959, and thus there is a fatal defect on the face of the record. See First Union National Bank et al. v. Portside Refrigerated Services, Inc., 2003 Pa. Super. 244 (2003); c. Notwithstanding the fact that the September 29, 2009 Complaint in Confession of Judgment raised claims that were not ripe as of the date the Respondents filed their Complaint, the judgment that was entered by Confession by Respondents against Petitioner on September 29, 2009, was satisfied by Petitioner by October 22, 2009 as evidenced by Exhibit "D" attached hereto; d. Respondents' counsel failed to mark the above captioned docket number satisfied and discontinued shortly after April 1, 2009, pursuant to the 13 Agreement reached between the Parties and instead improperly and/or unlawfully utilized that existing judgment docket to file a "Praecipe for Writ of Possession" on June 17, 2009. See Exhibit "J"; e. Pursuant to the terms of Paragraph 21 of the Lease Agreement, Petitioner was not in default as that term is defined as of the date the Respondents' authorized their counsel to file the Praecipe for Writ of Possession Upon Confessed Judgment" as evidenced by Exhibits "J" attached hereto; f. Pursuant to the terms of Paragraph 21 of the Lease Agreement, in the event of default Respondents were required to provide written notice to Petitioner of such alleged default and provide Petitioner with ten (10) days to cure. No such written notice was provided by Respondents; g. As the averments in Respondents' originally filed Complaint for Confession of Judgment filed September 29, 2009 have been moot since October 22, 2009, and further in light of the fact that Respondents failed to properly file a new Complaint for Confession of Judgment for Real Property (which Respondents were required to do no later than April 1, 2009, following the satisfaction of the confessed judgment entered in the above captioned matter prior to October 22, 2009, see Exhibit "E" attached hereto), Petitioner is unable to provide an Answer to a non-existent pleading and thus no such Answer is attached hereto. WHEREFORE, Petitioner, Brandon C. Powers, respectfully requests that this Honorable Court grant his Petition to Strike, or in the alternative open the confessed judgment by 14 Respondents against Petitioner and corresponding Praecipe for Writ of Possession, reinstate Petitioner in the Lease Premises and permit Petitioner to proceed with his defenses and counterclaims against Respondents, and further award Petitioner all such other relief as is proper and just, included but not limited to counsel fees and costs incurred in the filing of this Petition. III. Request for Stay of Execution 37. The averments set forth in paragraphs 1 through 36 are incorporated by reference as if more fully set forth at length herein. 38. The law does not favor judgments entered by confession. See e.g., Beckett v. Laux, 577 A.2d 1341 (Pa. Super. 1990). 39. Respondents and/or Respondents' counsel, in filing its Complaint in Confession of Judgment and subsequently executing upon said confessed judgment, failed to adhere to strict statutory requirements as well as the requirements set forth in the Pennsylvania Rules of Civil Procedure. 40. Petitioner has good and meritorious defenses to the judgment entered by confession, and the recently filed Praecipe for Writ of Possession and resulting execution which have been timely filed. 15 41. Petitioner has suffered and will continue to suffer prejudice unless this Honorable Court enters an Order reversing the Writ of Execution for Possession that was executed on July 7, 2011 and further staying any further execution on the confessed judgment. WHEREFORE, Petitioner, Brandon C. Powers, respectfully requests that this Honorable Court (a) grant his Petition to Strike off the confessed judgment, or in the alternative (b) open the confessed judgment by Respondents and permit Petitioner to proceed with his defenses against Respondent's claims; (c) Order the reversal of the execution that took place on July 7, 2011 and further stay all proceedings herein; and (d) further award Petitioner all such other relief as is proper and just, including but not limited to counsel fees and costs incurred in the filing of this Petition. Respectfully Submitted, e?-h r,.o 3.A.1?. ?,?,??r--..(?5?1?(Nvj Paige Macdonald-Matthes, Esquire SERRATELLI, SCHIFFMAN, & BROWN, P.C. 2080 Linglestown Road Suite 201 Harrisburg, PA 17110 (717) 540-9170 Attorney for Defendant Date: July 22, 2011 16 VERIFICATION I, Brandon C. Powers, verify that the statements made in the foregoing Defendant's Petition to Strike, or Alternatively Open Confessed Judgment and Request for Stay of Execution are true and correct. I understand that false statements herein are made subject to the penalties of 18 Pa. C.S. Section 4904, relating to unsworn falsification to authorities. _ Date: k? 2 2011 Brandon C. Powers 17 CERTIFICATE OF SERVICE I, Paige Macdonald-Matthes, Esquire, hereby certify that I have served a true and correct copy of the foregoing document on the following persons by placing same in the United States mail, postage prepaid, on the 22nd day of July, 2011: ROBERT P. KLINE, ESQUIRE KLINE LAW OFFICE 714 BRIDGE STREET P O Box 461 NEW CUMBERLAND, PA 17070 COUNSEL FOR PLA/NTIFFS/RESPONDENTS SERRATELLI, SCHIFFMAN & BROWN, P.C. Z??? -r R3. uai tn'e:l Paige Macdonald-Matthes, Esquire 18 E--- x 0 \ ?) ?-I' TRIPLE NET COMMERCIAL LEASE -I MoW ARTICLE Ol AGREEMENT- this I day of - 2008, by and between GUYSBPPB BARONE and GI0 VANM BARONE, 1400 O RELIANCE ROAD, MIDDLETO' .. ( ,COUNTY OF DAUPHIN, PA,. 17057 herchudter referred to as the "LANDLORDS", A N D BRANDON C. POWERS, 383. N. 26TH STREET, CAMP HILL, COUNTY OF CUM BERLLAND, PA 17011, hereinafter refereed to as the '"TENANT". W EREAS, the LANDLORDS is the owner of certain promises situated at 700 VALLEY ROAD, ENOLA, Township of EAST PENNSBORO, County of Cumberland and Commonwealth of Pennsylvania, hereinafter inferred to as the "Leasehold Premises' and r W>:I AE,A.S, the Tenant desires to rent and lease the Leasehold Premises from the LANDLORDS. and the LANDLORDS have agreed to lease the same to the Tenant upon the following terms aad conditions. NOW, THEREFORE, the parties hereto, 'intmding to be legally bound hereby, and in considerations of the rents and covepants of the Tenant to be paid and kept as herein contained, the LANDLORDS have agreed to lease unto the Tenant, and by these presents does hereby lease the Leasehold Premises unto the Tenant, and the Tenant hereby leases the Leasehold.Premises from the LANDLORDS, and the parties do covenant and agree as follows: . 1. Tm.* This Least shall be for a term of nine and one-half (9 IQ years, commencing on the 1 st day of July, 2008, and ending on the 31 st day of December, 2017. 2. Rent. Tenant shall pay to LANDLORDS, without demand or deduction, at its offices or such other places as LANDLORDS may-from time to time direct in writing, the nxinirmuu monthly rental as follows: Tenant shall pay a monthly rental of Three Thousand Dollars and 00/100 ($3,000.00) on the Ist day of July, 2008 and a like sum on the 1 st day of each month thereafter up to and including the I)ecember 1, 2009. Tenant shall pay a monthly rental of Three Thousand One Hundred Twenty Dollars. and. ar 00/100 (53,120.00) on the 1st day of January, 2010 and a like sum on the 1st day of each month thereafter up to and including December 1, 2010. Tenant shall pay a monthly rental of Three Thousand Two Hundred Forty-Four Dollars and'80/100 ($3,244.80} on the 1st day of January, 2011 and a like sum on the 1st day of each month thereafter up to and including December 1, 2011. EXHIBIT "B" Page 1 GT/t0 39Hd ?MdIW NMO88 IH 9Z8L8E8LTL 90 Tenant shall pay a monthly rental of Three Thousand Three Hundred Seventy-Four Dollars and 591100 ($3,374.59) on the Ist'day of January, 2012 and a like sum on the 1st day of each month thereafter up to and including December 1, 2012. Tenant shall pay a monthly rental of Three Thousand Five Hundred Nine Dollars and "`57/100 ($3,509.57) oft the fist day of January, 2013 and a like sum on the 1st day of each month thereafter up to and including December 1, 2013. . Tenant shall pay a monthly rental of Three Thousand Six Hundred Forty Nine Dollars and 951100 ($3;649.95) on the 1 st day of January, 2014 and a like sum on die 1 st day of each month thereafter up to and including December 1, 2014. Tenant shall pay a monthly rental of Three Thousand Seven Hundred Ninety-Five Dollars and 95/100 (S?.795.95) on the Ist.day of January, 2015 and a like sum on the 1st day of each month thereafter up to and including December 1, 2015. Tenant shall pay a monthly rental of Three Thousand Nine Hundred Forty-Seven Dollars and 79/100 ($3,947.79) on, the 1st day of January, 2016 and a like sum on the 1st day of each month thereafter up to and including December 1, 2016. Tenant shall pay a.monthly rental of Four. Thousand One Hundred Five Dollars and 70/10004,105.70) on the 1 at day of January, 2017 and a like sum on the 1 st day of each month thereafter up to and including December 1, 2017. A late charge of One Hundred Fifty-five (5150.00) Dollars and 00/100 will be due and payable for each month owed when the rent is not paid by the fifth (Sth) calendar day of the month. Failure to matte-the aforementioned rental payment by the-close of business on the fifteenth (15th} day of the calendar ii oath will constitute legal notice by the Tenant of intent to ceaseienting the premises effective after the end of the-current amortth and also batroatod as a default by the Tenant wader the terms of the Lease. Renewal Option., Provided Tenant is not in default at the time it exercises its option to renew, Tenant shall have the option to renew this Lease for one (1) additional term of ten (10) years in succession immediately following the expiration of the fast term. The option to renew shall be exercised by giving written notice to LANDLORDS, by certified mail, return receipt requested, of such intention to renew not less than ninety (90) days prior to the expiration of the existing term.. Such renewal shall be at the terms, conditions and rents set forth herein. 3. Se p't. Tenant shall further pay to LANDLORDS, prior to any use or occupancy of the Leasehold Premises, a security deposit in the sum of Three Thousand Dollars ($3,000.00), to be held as security for any damages to the Leasehold Premises, or as payment, in:,whole or part, for any costs or expenses incurred by the LANDLORDS resulting from !the failure of Tenant to surrender the premises in the condition described in Psragraph.l9 herein. Unless withheld by the LANDLORDS, in whole or in part, by reason of any damage to the Leasehold Premises, the security deposit shall be returned to the Tenant within thirty (30) days after the termination of this Lease, provided the Tenant Page 2 St/Z0 39Vd 806dIW NMO89 IH WeLBEBLIL 90:9T 0I0Z/ZZ/it has delivered to the LANDLORDS a forwarding address. in writing. at or prior to the date the Tena? t shall surrender the Leasehold Premises-to the LANDLORDS. 4. Utilities. D? ring the terns of this tease, the Tenant shall be solely responsible for the payment of any and all utilities of the Leasehold Premises, including, but not limited to, s gas, electric, telephone, cable and any service fees required far the installation of these utilities. The Tenant shall also be solely responsible for the payment of any and all water" bills, sewer bills end garbage collection costs concerning the Leasehold-Premises. 5. Clean and Sanitary Qndition, During the term of the Lease, the Tenant shall keep and maintain the Leasehold Premises and the surrounding area in a clean and sanitary condition at all times, $ee of all garbage and debris. All garbage and similar debris shall be deposited by the Tenant in facilities specifically for garbage collection. Tenant shall be responsible fro placing the garbage bags and/or containers and recycling container(s) at the curb for pick-up and to return the containers to their appropriate place. Tenants shall further comply with all local ordinances and regulations imposed by the TOWNSHIP OF EAST PENNSBORO relating to maintaining the Leasehold Premises in a clean and sanitary coption and relating to the collection of garbage and similar debris. Tenant shall be solely. liable for any action and/or fines that may be brought by the Township of Fast Pennsboip, or any other enforcement agency, as a result of the Leasehold Premises not being kepf.in a clean and sanitary condition. 6. Reoair and aintcnange The LANDLORDS are ONLY responsible for all structural repairs including structural portions of the roof, foundation, exterior walls, structwal Boors and'eeiling supports. It shall be the Tenant's sole responsibility to keep and maintain the entire Leasehold Premises, and every part thereof, in good condition and repair at all times during the term of the Lease. Tenant shall keep and maintain the Leasehold Premises in a clean, sanitary and safe condition, at all times during the term of the Lease, in accordance with the laws of the Commonwealth of Pennsylvania and in accordance with all directions, rules and regulations of the health officer, fire marshal, building inspeptor, or other proper officials of the governmental agencies having jurisdiction, at the sole cost and expense of Tenant, and Tenant shall comply with all requirements of law, ordinance and otherwise, affecting said premises. If Tenant refuses or neglects to commence and to complete repairs promptly and adequately, LANDLORD may, but shall not be required to do so, make and complete said repairs, and Tenant shill pay the cost thereof to LANDLORDS upon demand. At the time of the expiration of the tenancy herein, Tenant shall srurcndor the premises in good condition, reasonable wear and tear excepted. 7. Liability Insurance. Tenant shall, during the entire team of this Lease, keep in full force and effect a policy of public liability and property damage insurance with respect to the Leasehold Premises, in which the limits of public liability shall not'be less than ]Five. Hundred Thousand Dollars ($500,000.00) for injury or death-to one person in one accident, One Million Dollars ($1,000,000.00) for injury or death.per.occurrence and Five Hundred Thousand Dollars ($500,000.00) for property damage per occurrence. The policy shall name LANDLORDS; any other parties in interest designated by LANDLORDS, and Tenant as insured, and shall contain a clause that the insurer will not cancel or change the insurance without first giving LANDLORDS thirty (30) days prior Page 3 9 I/E0 39Vd dOddIW WOW IH 9ZBLBEBLIL 98:5I 0I0Z/ZZ/11 written notice. The insurance shall be with an insurance company approved by LANDLORDS, and a copy of the paid-up policy evidencing such insurance or a eertiScate of the insurer certifying the insurance of such policy shalt be delivered to LANDLORDS prior to commencement of Tenant's Work and upon renewals not less am thirty (30) days prior to the expiratigp of such coverage. 8. Personal Proacrtv Insurance. Tenant agrees to. carry, at its sole expense, insurance against all risks of physical loss, insuring Tenant's fixtures, furnishings, egopment and all other items of personal property of Tenant locate; on or-within the Loasehold Premises, in an amount equal to not less than one hundred percent (100°1o) of the actual replacement cpst thereof and to ihrnish LANDLORDS with a certificate evidencing such coverage. ' 4. Tenant agrseerthat LANDLORDS shall not be liable to Tenant, and Test hereby releases LANDLORDS from liability for any personal injury or da=go to or loss of personal. property in or about the Leased. Premises from any cause whatsoevi'er, unless such damage err loss results,solely from the gross negligence or willful miti6nduct of LANDLORDS.' LANDLORDS shall not be liable to Tenant for: • (i) any damage to property of Tenant or- of others located on the Leased Premises, nor the loss of or damage to any property of Tenant or others by theft or othetwise, (ii) any such damage caused by other tenants or persons in the Leased Premises, occupants of adjacent property or the public, or caused by construction of any private, public or quasi-public work, (iii) any latent defect in the Leasod Premises or in the building of *hich they form a part (iv) any consequential damage or lost profits, or (v) any damage or loss to the extent Tenant is compensated therefore by Tenant's insurance or to tho extent Tenant could have obtained coverage agaid'st such damage or loss at regular rates under commonly available insurance aoviraga, whether or not any of the foregoing results from LANTLORDS' gross negligence or willful misconduct. All property of Tenant kept or stored on the lemcd promises-shall be so kept or stored at the risk of Tenant only and Tentmt shall hold LANDLORDS harmless from 0 claims arising out of damage to the same, including subrogation claims by Tenant's insurance carrier. 10. Tenant shall maintain insurance with respect to the Leased Premises against loss or damage by fire and all other casualties covered by the standard extended coverage endorsement of the full insurable value of the Improvements thereon,, exclusive of foundations and excavations. Such insurance shall be procured from a responsible and financially sound insurance company or companies reasonably satisfactory to LANDLORDS, and, may, In wholo or part, be carried as part of a blank policy or policies . covering also other property, insured by Tenant and shall contain a standard form co- insurance clause. Such insurance policy shall name LANDLORDS as an additional insured, and L?NDLORDS' mortgagor as a secured interest. In the event of loss under any such policies, Tarrant shall hold the insurance proceeds intrust for the reconstruction and repair of 'die Leased Premises in accordance with Paragraph 11 herein. 11. If the Leased Premises or any portion thereof shall be damaged or destroyed by fire or other insurable casualty, Tenant shall (except as provided below) promptly, at its sole cost and expense, remove any resulting debris and make such repairs, restoration or rebuilding to the extent that is necessary to provide the Tenant with equal utility, design page 4 91/00 39Vd 8088IW NMO89 IH 9Zaiecol.tt 90:St 0I0Z/ZZ/TT and construction to that which existed prior to such damage or destruction; and this Lease shall remain ih full force and effect and rent shall not abate. If during the lost two years of the Term or the last two years of the Renewal Pcriod the touter on the l cased Premises is damaged or destroyed to the extent of not less than Bsy (50) percent of then current replacement cost thereof; Tenant shall have the right and option to terminate this Lease by giving LANDLORDS notice of such election within thirty (30) days after such damage or destruction shall have taken place, aitd if such notcc is given then this Lease. shall terminate as of the date Tenant vacatetea the Lea ed Premises, which date "I be no later than thirty (30) days after the giving. of such notice.. Upon the termination of the Lease by Tenant in accordance with the provisions of this Paragraph 11, all right, title and interest of Tenant in and to any insurance proceeds shall be promptly assigned by written instrument to LANDLORDS and any insurance proceeds, less and except insurance proceeds for Tenants personally, inventory or business interraption, shall be promptly paid to LANDLORDS. 12.Off-Set Statement. Tenant-agrees within ten (10) days after request therefore by LANDLORDS.to execute in recordable form and deliver to LANDLORDS a statement, in writing, certifying (a) that this Lease is in full force and effect, (b) the date of commenceme it of the term. of this Lease, (c) that rent is paid currently without. any offset or defenso thereto, -(d) the amount of rent, if any, paid in advance, (c). whether the Lease has been modified and, if so, identifying the modifications, and (f) that there be no uncured defaults by LANDLORDS or stating, those claimed by Tenant, provided, that in fact such facts are accurate and ascertainable. 13. Attorninent. In the event any proceedings are brought for the foreclosure of, or in the event of the conveyance by deed in Iieu of foreclosure of? or in the event of exercise of the power of sale under any mortgage made by LANDLORDS covering the leasehold Premises, Tenant hereby attorns to, and covenants and agrees to execute an instrument in writing reasonably satisfactory to the new owner whereby Tenant attorns to such successor in interest and recognizes such successor as the LANDLORDS under this Lease. 14. Subordination. Tenant agrees that this Lease shall, at the request of the LANDLORDS, be subordinate to any mortgages or deeds of trust that may;hereafter be placed upon sod.premisos and to any and all advances to be made thereunder, and to the interest theroott and all renewals, rcplaccments and extensions thereof, provided-the mortgagee or trustee named in said mortgages or trust deeds shall agree to recognized the Lease of Tenant in the event of foreclosure if Tenant is not in default, Tenant also agrees that any mortgagee or trustee may elect to have this Lease a prior lien to its mortgage or deed of trust, and in the event of such elation, and.upon notification by such mortgagee or trustee to Tenant to that effect, this Lease shall be deemed prior in lien to the said mortgage or deed of trust, whether this Lease is dated prior to or subsequent to the darn of said mortgage or deed of trust. Tenant agrees that upon the request of LANDLORDS, any mortgagee or any trustee, it shall execute whatever instruments may be required.to carry out the intent of this Section, 1 S. Aasignment and Subletting. Tenant agrees not to assign or in any manner transfer this Page 5 i 5T/90 39Vd a0881W WME IH 9ZBLBEBLTL 90:9T 0T0Z/ZZ/TT Lease or any estate a interest therein by operation of law or otherwise without prior written consent of LANDLORDS, and not to sublet the leased premises or any part(s) thereof or allow anyone to come in with, through or under it without like consent. Consent by.LANDLORDS to one or more assignments of this Lease or to one or more sublettings of the leased premises or thccollection of rent by LANDLORDS f1rom any assignee -or sub-lessee shall not operate to exhaust LANDLORDS' rights trader this Article. In the, event that Tenant, with or without the previous consent of LANDLORDS, does assign oii in anymanner transfer this Lease or any estate or interest therein, Tenant shall in.no. wa be released from any of its obligations under this Lease. 16. Waste or *uisance. Tenant shall not commit or suffer to be committed any waste upon the Leasehold Premises, and Tenant shall not place a load upon any floor of the Leasehold premises that exceeds the floor load per square foot area which such floor is designed to carry. Tenant shall not use or permit the-use of any medium that might constitute a nuisance. 17. Reconstruction of Damaged Premises. In the event the Leasehold Premises shall be p artially or totally destroyed by fire or other casualty as to become partially or totally untet=table, then the damage to the Leasehold Premises shall be promptly repaid, unless LANDLORDS shall elect not to rebuild as hereinafter provided, and the fixed minimum rental and other charges shall be abated in proportion to the amount of the Leasehold Premises rendered untenantable. In no event shall LANDLORDS be rtquired to repair or replace Tenant's trade fixtures, furnishings or personal property. If more than Twenty- five percent (2;S%) of the leased premises or of floor area of the building in which the leased premises are located shall be damaged or destroyed by fire or other casualty, then LANDLORDS may either elect that the Leasehold Premises be repaired or rebuilt or, at its sole optioniY=xinato this Lease by giving written notice to Tenant of its-eloction to so terminate, such notice to be given within ninety (90) days after the occurrence of such damage or destruction. 18. Total Condemnation of L ugd Premises If the whole of the Leasehold Premises shall be taken by any public authority under the power of eminent domain, then the term of this Lease shall cease as of the day possession shall be taken by such public authority and the rent shall be paid up io that day with a proportionate refund by LANDLORDS of such rent as may have been paid in advance for a period subsequent to the day of the taking.' 19. Partial Condemnation. If less than the whole but more than Twenty-five percent (25%) of the Leasehold Premises shall be taken under eminent domain, LANDLORDS shall have the right either to terminate this, Lease and declare the same null and void, or to restore the rienjAining portion of the leased premises or the building to a complete architectural *. In the event LANDLORDS elects to restore, all of 'the terms herein provided shall Continue in effect, oxcept the fixed annual rental shall be reduced in proportion to-the amount of the leased premise.taken. If Twenty-five percent (25%) or less of the Leasehold Premises shall be so taken, the lease term shall cease only as to the part so taken s of the day possession shall be taken by such public. authority, and Tenant shall pay rent up to that date, with appropriate Page 6 5T/90 3VVd H0881W NM0dH IH 9ZOLOEBLTL 90:9T 0TOZ/ZZ/IT reiltnd by.LANDLORDS of such rent as may have been paid in advance for -a period subsequent to the date of the taking, and thereafter the fixed minimum annual rental shall be reduced inq).roportion to the amount of the leased premises taken. In such event, or in the event that!rwenty--five percent (25%) or less of the Leasehold Premises shall be taken. LANDLORDS, shall, at its expense, make all necessary repairs or alterations to the basic bt ildini originally installod by LANDLORDS, so as to-constitute the remaining leased premises a complete architectural unit s 20. L.4NDI:ORDS_' ¢ Tenant's Damu . All damages awarded for such taldng wider tho power of eininmit domain, whether for the whole or a part of the leased premises, shall belong to and be the property of LANDLORDS whether- such damages shall be awarded as compensation foF:diminution in value to the leasehold or the fee of the premises, and Tenant shall have no claim against either LANDLORDS or.the condemning authority with respect thereto; provided, however, that LANDLORDS shall not be entitled to the ward made for depreciation to, and cost of removal of Tenant's stock and fixtures. 21. Default, ALL RIGHTS AND REMEDIES OF LANDLORDS HEREIN ENUM ERAT) D SHALL BE CUMULATIVE AND NONE SHALL EXCLUDE ANY OTHER RIGHTS OR REMEDIES ALLOWED BY LAW: TENANT COVENANTS AND AGREE'S THAT I1~, i, 1. TENANT SHALL FAIL, NEGLECT OR REFUSE TO PAY ANY INSTALLMENT OF ALL RENT AT THE TIME AND IN THE AMOUNT AS HEREIN PROVIDED, OR TO PAY ANY OTHBR MONIES AGREED BY IT TO BE PAID PROMPTLY WHEN AND AS THE SAME SHALL BECOME DUE AND PAYABLE UNDER THE TERMS HEREOF, AND IF ANY SUCH DEFAULT SHOULD CONTINUE FOR A PERIOD OF MORE THAN TEN (10) DAYS; 2. TENANT SHALL ABANDON OR VACATB THE LEASEHOLD PREMISES OR FAIL TO KEEP THE LEASED PREMISES CONTINUOUSLY AND UNINTERRUPTEDLY OPEN FOR BUSINESS EACH BUSINESS DAY OR SHALL FAIL, NEGLECT OR REFUSE TO KEEP AND PERFORM ANY OF THE. OTHER COVENANTS, CONDITIONS, STIPULATIONS OR AGREEMENTS HEREIN CONTAWAAND.COVEENANTED AND AGREED TO BE KEPT AND P ORmEa BY.rr, AND IN TPIE EVENT ANY SUCH DEFAULT SHALL CONTINUE qOR A PERIOD OF MORE THAN TEN (10) DAYS AXTPR NOTICE TIMRBOF. GEVEN IN WRI71NG TO TENANT BY-LANDLORDS PROVIDED HOWEVER THAT IF THE CAUSE FOR GIVING SUCH NOTICE INVOLVES THE MAKING OF REPAIRS OR OTHER MATTERS REASONABLE REQUDWG A LONGER PERIOD OF TIME THAT THE PERIOD OF SUCH NOTICE. TENANT SHALL BE DEEMED TO HAVE COMPLIED WITH SUCH NOTICE SO LONG AS IT HAS COMMENCED TO COMPLY WITH SAID NOTICE wnu N THE PERIOD SET FORTH IN THE NOTICE AND IS DILIGENTLY PROSECUTING COMPLIANCE OF SAID NOTICE OR HAS TAKEN-PROPER STEPS OR PROCEEDING UNDER THE CIRCUMSTANCES TO PREVENT THE SEIZURE, DESTRUCTION, ALTERATION OR OTHER INTERFERENCE-WITH SAID LEASED PREMISES BY REASON ON NON-COMPLIANCE-WITH THE Page 7 f 3 4 M 511L0 39Vd dC)88IW NMO88 IH 9ZBLeCeLTL 90:ST 0TOZ/ZZ/TT REQUIREMENTS OF ANY LAW OR ORDINANCE OR WITH THE RULES, REGULAIONS, OR DIRECTIONS OF ANY GOVERNMENTAL, AUTHORITY AS THE CASE-MAY BE; THEN THE TENANT DOES HEREBY AUTHORIZE AND FULLY EMPOWER SAID LANDLORDS OR LANDLORDS' AGENT TO CANCEL QR.ANNUL THIS LEASE AT ONCE AND TO RE-ENTER AND TAKE -,; POSSESSION'OF SAID.PREMISES 3III0DIATELY, AND BY FORCE IF NECESSARY, W rMOUT ANY PREVIOUS NOTICE OF INTENTION TO RE- ENTER AND REMOVE ALL PERSONS AND THEIR PROPERTY nMEFROM, AND TO US? SUCH FORCE AND ASSISTS IN EFFECTING AND PLILI7'13CTINO SUCH REM VAL OF SAID TBNANT AS MAY BE NECESSARY AND ADVISABLE} TO RECOVER AT ONCE FIRST AND EXCLUSIVE POSSESSION OF ALL SAID LEASED PREMISES WHETHER IN POSSESSION OF SAID TENANT OR OF THIRD PERSONS -OR OTHERWISE, WITHOUT BEING DEEMED GUILTY OF ANY MANNER OF TRESPASS AND WTrHOYTT PRETUDICE TO ANY REMEDIES WITH MIGHT OTHERWISE BE USED BY LANDLORDS, IN WHICH EVENT THIS LEASE SHALL. TERMINATE AND TENANT SHALL INDEMNIFY THE LANDLORDS AGAINST ALL UNAVOIDABLE LOSS OF RENT WHICH LANDLORDS MAY INCUR BY REASON OF SUCH TERMINATION DURING THE RESIDUE OF THE TERM HEREIN SPECIFIED. THE LANDLORDS MAY, HOWEVER., AT ITS OPTION, AT ANY TIME AFTER SUCH DEFAULT OR VIOLATION OF CONDITION OR COVENANT, RE-ENTER AND TAKE POSSESSION OF SAID PREMISES WITHOUT SUCH RE-ENTP-y WORKING Aa FORFEITURE OF THE RENTS TO BE PAM AND THE COVENANTS, AGREEIETTTS AND CONDITIONS TO BE KEPT AND PERFORMBT) BY TENANT FOR TILE FULL TERM OF THIS LEASE. IN SUCH EVENT LANDLORDS SHALT, HAVE THE RIGHT, BUT NOT THE OBLIGATION, TO DIVIDE OR SUBDIVIDE THE LEASEHOLD PREMISES IN ANY MANNER LANDLORDS MAY DETERM[ E AND TO LEASE OR LET THE SAME OIL PORTIONS HEREOF FOR SUCH PERIOD OF TIME AND AT SUCH RENTALS AND FOR SUCH USE AND UPON SUCH COVENANTS AND CONDITIONS AS LANDLORDS MAY ELECT, APPLYING THE NET RENTALS FROM SUCH LETTING FIRST TO THE PAYMENT OF LANDLORDS' EXPENSES INCURRED IS DISPOSSESSING TENANT AND THE COST AND EXPENSE 01: MAKING SUCH IMPROVEMENTS IN THE LEASEHOLD PREMISES AS MAY BB NECESSARY IN ORDER TO ENABLE LANDLOR TO RE-LBT THE SAME, AND TO THE PAYMENT OF BROKERAGE COMMISSIONS OR OTHER NECESSARY- EXPENSES OF LANDLORDS IN CONNECTION WITH SUCH RB-LETTING. THE BALANCE, IF ANY, SHALL BE APPLIED BY LESSOR FROM TIME TO T&M ON ACCOUNT OF THE PAYMENTS DUE OR PAABLE BY TENANT HEREUNDER, WTM THE 0HT. RESERVED TO LANDLORDS TO BRING SUCH ACTION OR PROCEEDINrS FOR THE RECOVERY OF ANY DEFICITS REMAINING UNPAID AS LANDLORDS -MAY DEEM FAVORABLE FROM T BM TO TIME, WITHOUT BEING OBLIGATED TO AWAIT THE END OF THE TERM HEREOF FOR TICE FINAL DETERMINATION OF TENANTS ACCOUNT. ANY BALANCE . REMAINING HOWEVER, AFTER FULL PAYMENT AND LIQUIDATION OF LANDLORDS' ACCOUNT AS AFORESAID SHALL BE PAID TO TENANT WITH Page 8 ST/80 39Vd 2WdlW NM08S IH 9Z8L8£8LTL 90:51 0TOZ/ZZ/TT -THE RIGHT RESERVED TO LANDLORDS AT ANY TIME TO GIVE NOTICE IN 'W'RITING TO TENANT OF LANDLORDS' ELECTION TO CANCEL AND TERMINATE THIS LEASE AND UON GIVING OF SUCH NOTICE AND THE SIMULTAIOUS PAYMENTS BY LANDLORDS TO TENANT OF ANY CREDIT BALANCE TENANT'S FAVOR THAT MAY AT THE TINM HE OWING TO TENANT SHALL CONTINUEE A FINAL AND EFFECTIVE CANCELLATION AND TERMINATION OF THIS LEASE AND THE OBLIGATIONS HEREUNDER ON THE PART OF ETilM PARTY TO THE OTHER LANDLORDS MAY, AT ITS OPTION, WHILE SUCH DEFAULT OR VIOLATION OF COVENANT OR CONDITION CONTINUES, AND AFTER TEN (10) DAYS NOTICE OF ITS INTENTION SO TO DO, DECLARE ALL THE RENT RESERVED FOR THE FULL TERM-OF THIS LEASE REMAINING UNPAID DUE AND PAYABLE AT ONCE; AND TENANT DOES HEREBY EMPOWER-ANY ATTORNEY OF ANY COURT OF RECORD IN THE STATE OF PENNSYLVANIA OR ELSEWHERE TO APPEAR FOR IT AN WAIVE THE ISSUANCE AND SERVICE OFTROCESS AND CONFESS JUDGMENT AGAINST IT FOR THE WHOLE OR ANY PART OF SAID RENT AND THfiREAFTER TO RELEASE ALL ERRORS. AND WARRANT ALL RIGHTS OF APPEAL AND STAY OF EXECUTI014 THE INITIAL EXERCISE OR USE OF THIS WARRANT OF ATTORNEY SHALL NOT EXHAUST THE SAME, BUT THE SAME MAY BE USED AND EXERMED WITHOUTLIMITATIONAS•OFTEN A.S-NECESSTTYFORTHE USE OF THE*SAME ARISE. THE EXERCISE OR USE OF THIS WARRANT OF ATTORNEY SMALL NOT PREVENT LANDLORDS FROM SUBSEQUENTLY TERMINATING THIS LEASE, IJY GIVWG NOTICE TO TENANT OF ITS ELECTION SO TO DO AND UPON ITS TENDER TO TENANT OF A SUM EQUAL TO THE AMOUNT, IF ANY, PAID BY THE TENANT FOR RENTS ACCRUING AFTER THE DATE OF SUCH TERMINATION. IN ADDITION TO THE OTIMR RIGHTS GRANTE TO THE LANDLORDS HEREUNDER, LANDLORDS MAY, AT ITS OPTION, WHILE SUCH DEFAULT OR VIOLATIONS OF CONVENANTS OR CONDITION CONTINUE(S), AND AFTER TEN (I0) DAYS' NOTICE OF ITS INTENTIONS TO DO SO, CONFESS JUDGMENT FOR POSSESSION OF THE LEASED PREMISE AND TENANT DOES HEREBY EMPOWER ANY ATTORNEY OF ANY COURT TO RECORD IN THE COMMO TH OF PENNSYLVANIA OR (ELSEWHERE TO APPEAR FOR IT AND W ISSUANCE AND SERVICE OF PROCESS AND CONFESS A JUDGMENT EJECTMENT. ALSO IN ADDITION TO THE OTHER RIGHTS GRANTED TO LANDLORDS UNDER THIS LEASE, TENANT AGREES THAT IN THE EVENT THAT THE AMOUNTS DUE LANDLORDS UNDER THfS LEASE ARE COLLECTkD BY LAW OR THROUGH AN ATTORNEY AT LAW, AND JUDGMENT IS EN'T'ERED IN FAVOR OF LANDLORDS AGAINST TENANT, WHETHER BY CONFESSION OR OTHERWISE, THEN TENANT AGREES TO PAY ALL COSTS OF COLLECTION, INCLUDING ATTORNEY'S FEES IN THE AMOUNT OF TEN PERCENT (100/6) OF THE JUDGMENT OR FIVE HUNDRED DOLLARS (SS.00.00), WHICHEVER IS Page 9 ST/60 39Vd dOddIW NINE IH 903LBEBL1G 90:9T 0T0L/ZZ/TT GREATER. 22. Right of Entry. LANDLORDS or LANDLORDS' agent shall have the right to eater the Leasehold Premises at all reasonable times to examine the same, and to make such repairs, alterations, improvements, desbib, and LANDLORDS shall be additiQns , LANDLORDS may deem necessary or owed o; take all material into and upon said premises that may be required tharcfore without the same constituting an eviction of Tenant in whole or in part, and the rent reserved shall in now wise abate while said repairs, alterations, ir:.pmvemcnts or additions are being made, by reason of loss or interruption otbusiness of Tenant, or otherwise. t 23. Los and 1-w-me to Tenant'sp '''•, The LANDLORDS shall not be responsible or liable to the Tenant for any loss or damage that may be occasioned by'Or through the acts or omissions of persons occupying adjoining premises or any part of the premises adjacent to the Leasehold-Premises or any part, or for any loss or damages resulting to the Tenant or its property from'bursting, stoppage or leaking of water, gas; sewer or steam pipes of for gay damage or loss of property within the Leasehold Premises from any cause whatsoever. 24. Notice by Tenant Tenant shall give immediate notice to LANDLORDS in 0290 of fire or accidents in the leased premises .or in the building of which the-premises are a part or of defects therein or in any fixtures or equipment. 25. Holding Over, Any holding over after the expiration of the term hereof with the consent of thelANDLORDS, shall be construed to be a tenancy from month to month (at twice the n"Ontbly minimum rental hereon specified). 26. uccesso s. All rights and liabilities herein given to, or imposed upon, the respective parties hereto shall extend to and bind the several respective heirs, executors, administrators, successors, and assigns of the said parties; and if there shall be more than one Tenant, they shall be bound jointly and severally by the terms, covenants and agreements herein. No rights, however, shall inure to the benefit of any assignee of Tenant unless the assignment to such assignee has been approved by LANDLORDS in writing as provided in Paragraph 15 herein. 27. LANDLO1DS" Covenant. Upon payment by the Tenant of the rents hcrein.provided, and upon the observance and performance of all the covenants, terms and conditions on Tenants part io be observed and performed; Tenant shall peacefully and quietly hold and enjoy the leased premises for the term hereby demised 'wit'hotut hindrance or intemrption by LANDLORDS or any other person or persons lawfully or equitably claiming by, through or under the LANDLORDS, subject nevertheless to the terms and conditions of this Lease, and any mortgages to which thii Lease is subordinate. c, 2S. Wes. 04e or more waiver of any-covenant or condition byLANDLORAS shall not be construed as a waiver of a subsequent breach of the same covenant orcondition, and the consent or approval by LANDLORDS to or of any act by Tenant requiring LANDLORDS' consent or approval-shall not be deemed to render unnecessary LANDLORDS' consent or approval to or of any subsequent similar act by Tenaat. No Page 10 9t/81 3008 d0dN1W NMO2G IH 9MBEeZU 90:Si 0t8Z/ZZ/it breach of a covenant or condition of this Lease shall be deemed to have been waived by LANDLORD, unless such waiver is in writing and siVW by LANDLORDS. 29. N'o. _ tices. Any notice, demand, request or other instrument which may be or is required to "given undaAWs Lease shalt be sent by United States certified mail, return receipt requested, postage prepaid and shall be addressed (a) if to LANDLORDS, at the address first above stated, or at such other address as LANDLORDS shall designate by written notice, (b) if to Tenant, to the leased premises or at such other'address as Tenant shall designate by written notice, and shall be effective upon; do-posit with ;o U.S. Postal Department. 30. Captions and Section Nwhcrs The captions, section numbers, and article numbers, appearing in this Lease are inserted only as a matter of convenience and in no way define, limit, construe or describe the scope or intent of such sections of this Lease nor in any way affect this Lease. 31. 9gogAiM : Tenant shall not record this Lease without the written consent of LANDLORDS; however, upon the request -of either party hereto, the other party shall j oil in tho cx4ution of a memorandum or so-called "short form" of this Lease for the purpose. of recvrdadoa. Said memorandum or short form of this Lease shall describe the parties, the Leeasehold Premises, the term of this Lease, and special provisions, and shall incorporate this Lease by reference. 32. Transfer of LANDLORDS' Intuest. In the event of any transfer or trausfcrs of LANDLORDS' interest in the Leasehold Premises, the transferor shall be automatically relieved of any and, all obligations on the part of LANDLORDS accruing From and after the date of such transfer, including, but not limited to, any obligation to Tenant with respect to the security deposit referred to in Paragraph 3 of this Lease upon assignment of the same to the transferee, provided that the interest of the transferor, as LANDLORDS, in any funds then in the hands of LANDLORDS in which Tenant has an interest shall be trued over, subject to such interest, to the ten transferee. No holder of a mortgage to which this Lease is or may be subordinate shall be responsible in connection with the security deposited hereunder, unless such mortgagee or hold of such deed of trust shall have actually feceived the security depositM hereunder, a 33. Accord and Satisfaetiots. No payment by Tenant or receipt by LANDLORDS of a lessor amount pan the monthly rent hcrcin stipulated shall be deemed to be other than on account of the'carliest stipulated rent, nor shall any endorsement or statement of any check or any letter accompanying any check or any payment as resit be deemed an accord and satisfaction, and LANDLORDS shall accept such check or payment without prejudice to LANDLORDS' right to cover the balance of such rent or pursue any other remedy in this Lease provided. . 34. Laws of the Commonwealth o0musytvania. This Lease shall be governed by and construed in accordance with the laws of the Commonwealth of Pennsylvania. If any provision of this Lease or the application thereof to any person or circumstances shall, to any extent, be invalid or unenforceable, the remainder of this Lease shall not be affected thereby and each provision of the Lease shall be valid and enforceable to the fullest Page I 1 i i i, 91/11 39Vd SOMIW NM088 IH 9Z8L8£6LLL 90:9i 0i0Z/ZZ/11 extent permitted by law. 35. Ent'' This Lease and the exhibits, if any, attached hereto and forming a Affmcrit part thereof, set forth all the covenants, promises, agreements, conditions and . understandings between.LANDLORDS and Tenant concerning the leased premises and A-a their are not covenants, promises; agreements; conditions or understandings, either oral or written, between them other than herein set forth No alterations, amendment, change or addition to this Lease shall be- binding upon LANDLORDS or Tenant unless reduced to writing and siped by each party. 36. Taxes. 4 During the term of ibis Lease, Tenant shall be responsible for and shall pay before delinquency all municipal, county or state taxes of any kind, but not limited to, real estate taxes. ' 37. NM Taxes. Should any governmental taxing authority acting under any present or future law, ordinance or regulation, levy, assess or impose a tax, excise, assessment and/or any business and/or occupation taxes'(other than income or franchise tax) upon or against the rentals payable by Tenant to LANDLORDS, Bather by way of substitution or in addition to any existing tax on land and buildings or otherwise, Tenant shall be responsible for and shall pay such talc, excise, assessment, and any business and occupation taxes levied directly against the Tenant, or shall reimburse LANDLORDS for .the amount thereof, as the case maybe, as additional rent, on or before the date that any fine, penalty or interest would be added thereto.for non-payment. Tenant shall also pay its pro-rata share of any tax or chargelevied in lieu ofReal Estate taxes. 3$. Heirs and 6,.Mss016, This agreement shall be binding on and shall inure to the benefit of the urines hereto, their respective heirs, successors, personal representatives and assigns. r; 39. Counterparts, This Lease may be signed in one or more counterparts, and all such counterparts shall form but one integrated agreement. This Lease may bo executed by facsimile signatures. 40. Right of First Refusal; LANDLORDS agms that LANDLORDS "I not, during the Tenn or any Renewal Period, sell or contract to sell the Leased Premises to any party without first offering to sell the Lessod Premises to Tenant for a cash price equal to the price ultimately paid by such-purchasing party. LANDLORDS shall make such offer by sending written notice thereof to Tenant. If accepted via written notice within fifteen (15) days, then Tenant has forty-five (45) days to settle. Failure .to settle by that time releases LANDLORDS from any further or futurc obligation under this Paragraph 40. If Tenant shall not thereafter send written notice. to LANDLORDS accepting - LANDLOMI' offer within fifteen (15) days following Tenant's receipt of LANDLORD-9 offer, then LANDLORDS shall have one hundred eighty (180) days from the expiration bf such fifteen (IS) day period to eater into a contraet'to sell the Teased Premises to any' party, and ma'y thereafter sell the Leased Premises pursuant to such contract, free of the restrictions imposed hereby. If LANDLORDS shall not enter into a THE REMAINDER OF PAGE IS IN 'ENTIUNA??LY BLANK Page 12 9 1/ZI 39vd NO MIW WME IH 9UL8£BLTL 99.91 9T9Z/ZZ/T1 the Lased Premises within such ono hundred eighty (180) day period, the contract to sAt Leased Prems s hall again become subject to the provisions of this Paragraph 40.. IN VVMESS WBFJWF, the parties hereto have each caused this Lease to be executed as of the day and year fht above written.. `4 ; WITNESS t 3.: LANDLOA.OS: GIOVANNI BARONE c? l Page 13 BRANDON C. POWERS SI/ET 30Vd d0881W NMONG IH 900L8EOLTL 90'ST 0TBZ/ZZ/ii WITNESS TENANT;. Addendum to Triple Net lease LANDLORD(S): Guiseppe Barone and Giovanni Barone ADDRESS: 1400 Old Reliance Road, Middletown, county oflaauphin. PA. 17057 TENET: Brandon Powers ADDRESS; .383 N. 26* Street, Camp an, County of Cumberland, pA, 17011 All terms and conditions from "Triple'Net Lease" between above parties for this property are herein incorporated except where they conflict with following provision. Where there is a conflict between this "Addendum" and "Triple Net Lease", terms herein shall rule. 1) TERM: The term shall be S 1/2 years, commencing on.1 July 2008 and ending on 31 December 2012. -2) RENEWAL OPTION: Provided-the Tenant is not in default at the time it exercises its option to renew, Tenant shall have the option to renew this 1 lease for one (1) additionatterm of five (5) years in-succession immediately following the expiration ofthe first term. All other terms of this section apply from original lease. 3) RENT: Mnimum monthly rental payments for years 2013 through 2017 shall come into effect only if lease is renewed through the above mentioned renewal option. 4) HOLDING OVLR: Any holding over after expiratiop of the term hereof with the . consent of the LANDLORD(S), shall be construed to be tenancy from month to month at the last minimum payment stipulated in the LEASE. If holdover lasts more that 120 days, LANDLORD(S) shalt have the right to increase the minimum monthly renW.payment to one and one*lWf (i %) of rainimum monthly rental payment herein specified. TIHE.RMvMMER OF THIS PAGE IS DrTIEN71ONALLY BLANK 5t/01 39Vd d0ddIW WME IH 9ZBLBE81IL 90:5t 0t8Z/ZZ/I1 IN WITNESS WHEREOF, the parties hereto have each caused this ADDENDUM to be executed as of the day and year first above written. WITNESS WITNESS LANDLORD(S): PE BAItONE IOVANNISAXONE TENANT: BRANDON C. POWERS ST/ST 39Vd 21)88IW NMON9 IH 9zetecaLTL 90:ST 010Z/LZ/TT XI-I ? 5 I-r ROBERT P. KLINE, ESQ. VIA FACSIMILE AND :....- FIRST CLASS MAIL October 9, 2009 Joseph N. Gothie, Esquire 11 E. Market Street York, PA 17401 Re: 700 Valley Street Dear Joe: This letter will serve as confirmation of our telephone conversation of earlier today whereby I advised you that the following payment is required to be received in my office on or before October 16, 2009, or paid directly to my client, in the amount of $6,359.42, broken down as follows: October rent $3,000.00; accumulated late fees $1,500; 2009 county/township tax (at penalty) $981.42; court costs and sheriff deposit $128.00; attorneys fees to date $750.00. Upon receipt of this payment, my client will agree to forbear any further action on the confession of judgment for possession that has been entered for so long as your client continues to make timely payments of his rent and meets his other obligations under the Lease Agreement, with each and every rent payment being paid on time and with the next such lease payment in the amount of $3,000.00 due on or before November 1, 2009. Nothing herein shall preclude my client from enforcing the Judgment by Confession for Possession of Real Property upon the occurrence of any additional default on the part of your client. ours, Robert P. Kline, Esquire RPKJsrf cc: Guiseppe Barone Giovanni Barone 714 Bridge Street P.O. Box 461 New Cumberland, PA 17070 (717) 770-2540 (717) 243-5940 Fax (717) 770-2553 ?x??e?T C ,___„?__ ??? r `i`K Afdkfng lhinp hope vjbr.you.* W. w.. yam,, M.r ,a.,++????asMM ,? ?ooo oe op%b "unwed #Ma a 96. 4 awl volsomm" in c .+.,*• t ?s liTle?tllneea ?* a tros ` ?itseae0a4 ye0 Dl?T • 0?i? o?T WID .?h 1?lIS r' f4obAYD4 ooso 50000 to-, ,rurwpl womw quo- o" OF?Ii • ? 0?1 iselp RMit?5 - Mro ?, .ww?e N w11?.r I.I.r ?, ? yo:o2?a4 C5b , {,77 Yf 4111111M M"Aff *Ilm- mm ? ieee ? mer f• ao?i?a?rosr?eeao-r? ?Qte EEC" T Lose "::? lose ?ep1o6 "' --r6L%2w7 071- -A j W& -IL- ---W- ?OeLeoieDlCit?e{,Or?i, lOS4 '? 10e0 KOete0ia0lCt4uoetA?.{w LpeO ROBERT P. KLINE, ESQ. y October 22, 2009 Joseph N. Gothie, Esquire Gothie Van Allen, LLC 111 E. Market Street, Suite 101 York, PA 17401 Re: 700 Valley Street Dear Joe: This letter will serve as a follow-up to our telephone conversation of earlier today whereby we discussed the terms under which my client will forbear further action on the Judgment of Possession that had been entered by Confession of Judgment, docketed as Guiseppe Barone and Giovanni Barone v. Brandon C. Powers, Cumberland County No. 09-6533 Civil Term. This letter will confirm that your client has presently brought up-to-date the rent payments, late fees, 2009 county/township tax, court costs and attorneys fees that were requested in my letter of October 9, 2009. As a result of your client's compliance with this request, my client will forbear the taking of any action to evict your client pursuant to the judgment of possession entered by confession on September 29, 2009, on the following conditions: 1. Your client will make timely payment of his monthly rent to my client on or before the 1" of each month, without exception, and with the next such payment due on or before November 1, 2009, and your client will do so for six (6) consecutive months to and including the rent payment due on or before April 1, 2010; 2. Your client will pay directly to Deborah A. Lupold, Treasurer for East Pennsboro Township, the 2009-10 school tax in the face amount of $3,053.45 prior to the expiration of the face period and before the imposition of further penalty, which date is October 31, 2009, and will provide my office with proof that such payment has been made; and 3. Your client will remain in compliance with each and every other term of the Lease Agreement between the parties. 714 Bridge slreei P.O. Box 461 New Cumberland, PA 17070 (717) 770-2540 (717) 243-5940 Fax (717) 770-2553 Joseph N. Gothie, Esquire October 22, 2009 Page Two As a further condition of my client's forbearance, your client will not challenge in any manner whatsoever the entry of the Confession of Judgment for Possession referred to above. In the event that your client fails to meet these conditions, my client will request that writ of execution be issued on~the judgment for possession. However, if your client successfully meets the conditions outlined above, shortly after April 1, 2009, the judgment for possession will be satisfied of record and withdrawn. I ask that you please confirm, in writing, by letter from your office, that your client is aware of, and is in agreement with, these conditions. ry Ve yours, Robert P. Kline, Esquire RPK/srf cc: Guiseppe Barone i ASSET PURCHASE AGREEMENT THIS ASSET PURCHASE AGREEMENT made this g day of May 2011, between: Valley Road Restaurant, Inc., a Pwsylvania corporation with a mailing address of 383 North 26"' Street, Camp ffll, PA 17011-(661lectively, "Seller"} Veronica G. Arevalo and Varomo D. Hernandez, adult individuals with a mailing address of 640 Lopax Road, Harrisburg, PA 17112 (collectively, "Buyer"). BACKGROUND 3 Seller is engaged in the restaurant business at a facility located in Enola, Pennsylvania ("Business"). Buyer has negotiated contemporaneously with Brandon C. Powers for a sublease of real estate associated with the business. Seller is interesting in selling and Buyer is interested in purchasing all other assets of the Business. THE PARTIES HERETO, INTENDING TO BE LEGALLY BOUND HEREBY, AGREE, AS FOLLOWS: SALE, PURCHASE AND ASSUMPTION. Seller agrees to sell and Buyer agrees to purchase all assets of the Business as more fully described and set forth in Exhibit "A", attached hereto and made a part hereof. It is hereby expressly understood and agreed that the Assets are to be transferred and conveyed to Buyer as above specified, in the condition existing at the time of this Agreement, by good and sufficient bill of sale, and other necessary documents of transfer, free and clear of all liens, charges, encumbrances, debts, liabilities and obligations whatsoever, except for those which are or arise out of obligations which are expressly assumed by Buyer hereunder, and that such transfer of title shall occur upon the payment by Buyer of the complete purchase price by cash or certified funds payable to Seller on or before May 15, 2017, so long as Buyer has not defaulted on the terms of the Sublease Agreement with Brandon C. Powers executed contemporaneously with this document. Buyer is aware of liens on personal property to be transferred upon final payment to Seller and that Seller will satisfy those liens contemporaneously with final payment to Seller by Buyer. 2. PURCHASE PRICE. The total purchase price for the Assets shall be ONE HUNDRED FORTY THOUSAND AND 00/100 ($140,000.00) U.S. DOLLARS ("Purchase Price"). Buyer shall pay to Seller a down payment FIFTEEN THOUSAND AND 00/100 ($15,000.00) U. S. DOLLARS in cash or certified funds at Closing ("Down Payment") and monthly payments thereafter in the amount of $1,650.00 due on or before the first day of each month until the balance of the Purchase Price is paid in full.. CLOSING. "Closing" shall mean the meeting of the parties or other occurrence at which the sale, assignment, transfer and delivery of the Assets by Seller to Buyer, the payment of the Down Payment (as defined above). The Closing shall take place on or before May 15, 2011. a. CONDITIONS TO CLOSING. This Agreement is subject to the satisfaction of Buyer. Buyer will receive upon final payment to Seller a duly executed Bill of Sale; 4. REPRESENTATIONS AND WARRANTIES. As a material inducement to the parties to enter into this Agreement and to close hereunder, the parties make the following representations and warranties as of the date hereof and as of the date of Closing. a. Authority. Buy_Qrz Seller each have full power, right and authority to enter into and perform their respective obligations under this Agreement. b. Good Title. Seller owns outright and has good, indefeasible and marketable title to all the Assets which will be able to delivered contemporaneously with final payment from Buyer, all property free and clear of all liens, security interests, mortgages, pledges, restrictions, prior assignments, encumbrances and claims of any kind, unless otherwise stated in this Agreement. c. No Litigation, Transaction Not a Breach. There is no litigation, proceedings, demands, letters, claurrs or investigation pending or threatened against the parties or relating to or affecting the Business or any of the Assets to be purchased by Buyer hereunder. There is no litigation pending, or to the knowledge of the Seller, threatened, between or among Seller against it by its employees. d. Assumption of risk of Loss. Seller assumes the risk of loss, damage or destruction resulting from fire or other casualty of the Business or assets thereof, to the time of Closing, and Buyer shall have the right to terminate this Agreement if the Business is interrupted prior to Closing because of loss, destruction or damage due to fire or other casualty. If loss, destruction or damage due to fire or other casualty occurs prior to Closing, the purchase price shall be adjusted to reflect the loss. 5. INDEMNIFICATION. Subject to the limitations in this section, from and after the closing, the parties shall hold harmless, indemnify and defend each other, and their respective officers, directors, employees, stockholders, agents and affiliates, from and against any and all damages, claims, losses, liabilities and expenses (including without limitation costs of investigation and reasonable attorneys' fees and expenses) or diminution of value, whether or not involving a third-party clairn, which may arise out of any breach by the other party of any representation or warranty in this Agreement or in any certificate or documents delivered pursuant to this Agreement, and any other breach or violation by the other party of any covenants of this Agreement. 6. DEFAULT. ALL RIGHTS AND REMEDIES OF SELLER INCLUDED IN THIS AGREEMENT ARE BE CUMULATIVE AND DO NOT EXCLUDE ANY OTHER RIGHTS OR REMEDIES ALLOWED BY LAW. BUYER COVENANTS AND AGREES THAT: IF BUYER FAILS, NEGLECTS OR REFUSES TO PAY ANY INSTALLMENT OF AT THE TIME AND IN THE AMOUNT AS HEREIN PROVIDED, OR TO PAY ANY OTHER MONIES AGREED BY IT TO BE PAID PROMPTLY WHEN AND AS THE SAME SHALL BECOME DUE AND PAYABLE UNDER THE TERMS HEREOF, AND IF ANY SUCH DEFAULT SHOULD CONTINUE FOR A PERIOD OF MORE THAN TEN (10) DAYS; 2 2. IF BUYER SHALL ABANDON OR VACATE THE PROPERTY OR FAIL TO KEEP THE PROPERTY CONTINUOUSLY AND UNITERRUPTEDLY OPEN FOR BUSINESS EACH BUSINESS DAY FOR AT LEAST 5 DAYS A WEEK OR SHALL FAIL, NEGLECT OR REFUSE TO KEEP AND PERFORM ANY OF THE OTHER COVENANTS, CONDITIONS, STIPULATIONS OR AGREEMENTS HEREIN CONTAINED AND COVEENANTED AND AGREED TO BE KEPT AND r PERFORMED BY IT, AND IN THE EVENT ANY SUCH DEFAULT-SHALL CONTINUE FOR A PERIOD OF MORE THAN TEN (10) DAYS AFTER NOTICE THEREOF GIVEN IN WRITING TO BUYER BY SELLER PROVIDED HOWEVER THAT IF THE CAUSE FOR GIVING SUCH NOTICE INVOLVES THE MAKING OF REPAIRS OR OTHER MATTERS REASONABLE REQUIRING A LONGER PERIOD OF TIME THAN THE PERIOD OF SUCH NOTICE. BUYER SHALL BE DEEMED TO HAVE COMPLIED WITH SUCH NOTICE WITHIN THE PERIOD SET FORTH IN THE NOTICE AND IS DILIGENTLY PROSECUTING COMPLIANCE OF SAID NOTICE OR HAS TAKEN PROPER STEPS OF PROCEEDING UNDER THE CIRCUMSTANCES TO PREVENT THE SEIZURE, DESTRUCTION, ALTERATION OR OTHER INTERFERENCE WITH SAID PROPERTY BY REASON OF NON- COMPLIANCE WITH THE REQUIREMENTS OF ANY LAW OR ORDINANCE OR WITH THE RULES, REGULATIONS, OR DIRECTIONS OF ANY GOVERNMENTAL AUTHORITY AS THE CASE MAY BE; THEN THE BUYER DOES HEREBY AUTHORIZE AND FULLY EMPOWER SAID SELLER OR SELLER'S AGENT TO CANCEL OR ANNUL THIS AGREEMENT AT ONCE AND TO RE-ENTER AND TAKE POSSESSION OF SAID PREMISES IMMEDIATELY, AND BY FORCE IF NECESSARY, WITHOUT ANY PREVIOUS NOTICE OR INTENTION TO RE-ENTER AND REMOVE ALL PERSONS AND THEIR PROPERTY THEREFROM, AND TO USE SUCH FORCE AND ASSISTANCE IN EFFECTING AND PERFECTING SUCH REMOVAL OF SAID BUYER AS MAY BE NECESSARY AND ADVISABLE TO RECOVER AT ONCE FIRST AND EXCLUSIVE POSSESSION OF ALL SAID LEASED PREMISES WHETHER IN POSSESSION OF SAID BUYER OR OF THIRD PERSONS OR OTHERWISE, WITHOUT BEING DEEMED GUILTY OF ANY MANNER OF TRESPASS AND WITHOUT PREJUDICE TO ANY EVENT THS AGREEMENT SHALL TERMINATE AND BUYER SHALL INDEMNIFY THE SELLERAGAINST ALL UNAVOIDABLE LOSS OF PAYMENTS OR INCOME WHICH SELLER MAY INCUR BY REASON OF SUCH TERMINATION DURING THE RESIDUE OF THE TERM HEREIN SPECIFIED. THE SELLER MAY, HOWEVER AT ITS OPTION, AT ANY TIME AFTER SUCH DEFAULT OR VIOLATION OF CONDITION OR COVENANT, RE-ENTER AND TAKE POSSESSION OF SAID PREMISES WITHOUT SUCH RE-ENTRY WORKING A FORFEITURE OF THE PAYMENTS TO BE PAID AND THE COVENANTS, AGREEMENTS AND CONDITIONS TO BE KEPT AND PERFORMED BY BUYER FOR THE FULL TERM OF THIS AGREEMENT. IN SUCH EVENT SELLER SHALL HAVE THE RIGHT BUT NOT THE OBLIGATION, TO DIVIDE OR SUBDIVIDE THE SUBJECT PREMISES IN ANY MANNER SELLER MAY DETERMINE AND TO SELL, LEASE OR LET THE SAME OR PORTIONS HEREOF FOR SUCH PERIOD OF TIME AND AT SUCH PRICES OR RENTALS AND FOR SUCH USE AND UPON SUCH COVENANTS AND CONDITIONS AS SELLER MAY ELECT, APPLYING THE NET PROCEEDS FROM SUCH SALES OR RENTALS FIRST TO THE PAYMENT OR SELLER'S EXPENSES OF MAKING SUCH IMPROVEMENTS IN THE SUBJECT PROPERTY AS MAY BE NECESSARY IN ORDER TO ENABLE SELLER TO SELL OR RENT THE SAME, AND TO THE PAYMENT OF BROKERAGE COMMISSIONS OR OTHER NECESSARY IN EXPENSES OF SELLER IN CONNECTION WITH SUCH RE-SALE OR RENTAL THE BALANCE, IF ANY, SHALL BE APPLIED BY SELLER FROM TIME TO TIME ON ACCOUNT OF THE PAYMENTS DUE OR PAYABLE TBY BUYER HEREUNDER, WITH THE RIGHT RESERVED TO SELLER TO BRING SUCH ACTION OR PROCEEDINGS FOR THE REVOCERY OF ANY DEFICITS REMANING UNPAID AS SELLER MAY DEEM FAVORABLE FROM TIME TO TIME, WITHOUT BEING OBLIGATED TO AWAIT THE END OF THE TERM HEREOF FOR THE FINAL DETERMINATION OF BUYER'S ACCOUNT. ANY BALANCE REMAINING HOWEVER, AFTER FULL PAYMENT AND LIQUIDATION OF SELLER'S ACCOUNT AS AFORESAID SHALL BE PAID TO BUYER WITH THE RIGHT RESERVED TO SELLER AT ANY TIME TO GIVE NOTICE IN WRITING TO BUYER OF SELLER'S ELECTION TO CANCEL AND TERMINATE THIS AGREEMENT UPON GIVING OF SUCH NOTICE AND THE SIMULTANEOUS PAYMENTS BY SELLER TO BUYER OF ANY CREDIT BALANCE IN BUYER'S FAVOR THAT MAY AT THE TIME BE OWING TO BUYER SHALL CONSTITUE A FINAL AND EFFECTIVE CANCELLATION AND TERMINATION OF THIS AGREEMENT AND THE OBLIGATIONS HEREUNDER ON THE PART OF EITHER PARTY TO THE OTHER. SELLER MAY, AT ITS OPTION, WHILE SUCH DEFAULT OR VIOLATION OR COVENANT OR CONDITION CONTINUES, AND AFTER TEN (10) DAYS NOTICE OF ITS INTENTION SO TO DO, DECLARE ALL THE PAYMENTS RESERVED FOR THE FULL TERM OF THIS LEASE REMAINING UNPAID DUE AND PAYABLE AT ONCE; AND BUYER DOES HEREBY EMPOWER ANY ATTORNEY OF ANY COURT OF RECORD IN THE STATE OF PENNSYLVANIA OR ELSEWHERE TO APPEAR FOR IT AND WAIVE THE ISSUANCE AND SERVICE OF PROCESS AND CONFESS.IUDGMENT AGAINST IT FOR THE WHOLE OF ANY PART OF SAID RENT AND THEREAFTER TO RELEASE ALL ERRORS AND WARRANT ALL RIGHTS OF APPEAL AND STAY OF EXECUTION THE INITIAL EXERCISE OR USE OF THIS WARRANT OF ATTORNEY SHALL NOT EXHAUST THE SAME, BUT THE SAME MAY BE USED AND EXERCISED WTHOUT LIMITATION AS OFTEN AS NECESSITY FOR THE USE OF THE SAME ARISE, THE EXERCISE OR USE OF THIS WARRANT OF ATTORNEY SHALL NOT PREVENT SELLER FROM S (i 13SEQUENTLY TERMINATING THIS AGREEMENT, BY GIVING NOTICE TO BU V 'R OF ITS ELECTION SO TO DO AND UPON ITS TENDER TO BUYER OF A SUM EQUAL TO THE AMOUNT, IF ANY, PAID BY THE BUYER FOR SALE PAI i) AFTER THE DATE OF SUCH TERMINATION. 4 IN ADDITION TO THE OTHER RIGHTS GRANTED TO THE SELLER HERUNDER, SELLER MAY, AT ITS OPTION, WHILE SUCH DEFAULT OR VIOLATIONS OF COVENANTS OR CONDITION CONTINUE(S), AND AFTER TEN (10) DAYS' NOTICE OF'TS INTENTIONS TO DO SO, CONFESS JUDGMENT FOR POSSESSION AND EJECTMENT OF THE BUYER FROM THE SUBJECT PROPERTY AND BUYER DOES HEREBY EMPOWER ANY ATTORNEY OF ANY COURT TO RECORD IN THE COMMONWEALTH OF PENNSYLVANIA OR ELSEWHERE TO APPEAR FOR IT AND WAIVE THE ISSUANCE AND SERVICE OF PROCESS AND CONFESS A JUDGMENT IN EJECTMENT. ALSO IN ADDITION TO TH-r, 0 TIER RIGHTS GRANTED TO THE SELLER UNDER THIS AGREEMENT. ;DYER AGRESS THAT IN THE EVENT THAT THE AMOUNTS DUE SELLER Ui ;DER THIS AGREEMENT ARE COLLECTED BY LAW OR THROUGH AN ATTORNEY AT LAW, AND JUDGMENT IS ENTERED IN FAVOR OF SELLER AGAANST BUYER WHETHER BY CONFESSION OR OTHERWISE, THEN BUYEl AGREES TO PAY ALL COSTS OF COLLECTION, INCLUDING ATTORNEY'S FEES Ill THE AMOUNT OF TEN PERCENT OF THE JUDGMENT OR ONE THOL'.'.':TJL DOLLARS ($1,000.00), WHICHEVER IS GREATER. 7. MISCELLANEOUS. a. Notices. All notices under this /greenlent shall be in writing, delivered by confirmed telefax, certified m«: return receipt requested or by hand, and shall be deemed to have been given wi,: r(-.,eived by the intended recipient at the following address (or at such other addre... _is the intended recipient shall have specified in a written notice given to the othc arties): i) If to Seller: 383 North 26`x' "treet, Camp Hill, PA 17011 ii) If to Buyer: 640 Lopax Ro- ?, Murisburg, PA 17112 8. AMENDMENTS. This Agreement i , r-. , be amended or supplemented except by means of a written agreement executed on behai. '_uch of the parties to this Agreement. 9. SEVERABILITY. Whenever posy . ole, each provision of this Agreement shall be interpreted in such manners to be effec 've and valid under applicable law, but if any one or more of the provisions or a portion of any pre,,, ' sions of this Agreement shall be deemed to be contrary to law, invalid, illegal, unenforceable o rea:: enable uz any respect by any governmental authority, court of law or arbitrator having co: "f- Jurisdiction over the subject matter of and over the parties to this Agreement, the remai r:: sions, portions of such provisions or reasonable scope of such provisions shall be severable. ;ilorceable uz accordance with their terms. 10. WAIVER. No failure on the part of! ,v party to this Agreement to exercise any right or remedy under this Agreement, and no delay c_ he part of any party to this Agreement in exercising any right or remedy under this Agreement, sha'. » ute a waiver of such right or remedy, and no single or partial exercise of any such right or r 'd-v shall preclude any other or further exercise of such right or remedy or of any other right: or rep 5 11. SUCCESSORS AND ASSIGNS. F obligations under this Agreement by consent of Seller. This Agreement sK Agreement, shall inure to the benefit permitted successors and assigns, if 12. DISPUTE RESOLUTION. Any brought before the Court ofCormnoi Courts for the Middle District of Peen those Courts. The prevailing party s] reasonable attorney's fees. Peinisyl in accordance with the laws of the conflicts of laws provisions. 13. ENTIRE AGREEMENT. All E:,: agreements shall be considered inco:, terms used iil such Exhibits shall have Agreement:. This Agreement and the delivered pursuant hereto or thereto Agreement and supersede all other aL subject matter of this Agreement. 14. COUNTERPARTS. This Agreci . telefaxed signature pages, each of wl.: together, shall constitute the Agrecl: IN WITNESS W IEREOF, Seller, lay not assign any of its rights or delegate any of its operation of law or otherwise without the written binding upon and, except as otherwise provided in the ie parties to this Agreement and their respective u' es arising pursuanUo this Agreement shall be f Cumberland County, Pennsylvania, or the Federal i.a and the parties submit to exclusive jurisdiction of .titled to recover all costs incurred, including shall govern. This Agreement shall be construed c ; awealth of Pennsylvania without regard to its taus Agreement and the ancillary written nto and a part of this Agreement, and all capitalized xncanings as similarly capitalized terms used in this y,mitten agreements and other written instnunents ute the entire understanding of the parties to this ,nts and understandings between them relating to the y be executed in counterparts, including by means of constitute an original and all of which, when taken ryer have executed this Agreement as of the date set 05- D ate ? a 1) Date 6 EXHIBIT A Assets I . All equipment, inventory and fit? 2. All intellectual property 3. All telephone numbers. 4. All Trade Names 5. All customer records and lists 6. All goodwill associated with the 1 ess 7 1?? Aereement of Sublease THIS AGREEMENT OF SUBLEASE (this "Sublease") is made as of the 49 day of May, 2011 between Brandon C. Powers, with an address at 383 N. 26'h Street, Camp Hill, PA 17011 ("Sublandlord"), and Veronica G. Arevalo and Varonio D. Hernandez, adult individuals, with an address at 640 Lopax Road, Harrisburg, PA 17112 (collectively, "Subtenant"). Background: A. Sublandlord has entered into a lease with Giuseppe Barone and Giovanni Barone (collectively, "Landlord") dated July 1, 2008 (herein referred to as the "Lease") for certain commercial space consisting of 700 Valley Road, Enola, PA 17025 (collectively the "Demised Premises") within Landlord's building (the "Building"). A true and correct copy of the Lease, from which certain business terms irrelevant to this Sublease have been excised, is attached hereto as Exhibit A and hereby made a part hereof. B. Subtenant desires to sublease from Sublandlord all of the Demised Premises and Sublandlord is agreeable to the making of such sublease on the terms and conditions hereinafter set forth. Agreement NOW, THEREFORE, in consideration of the rents herein reserved and the covenants hereinafter expressed, and intending to be legally bound, Sublandlord and Subtenant agree as follows: 1. Sublease; Term. Sublandlord hereby demises and sublets to Subtenant, who hereby subleases and takes from Sublandlord, the Sublet Premises for a term (the "Term") beginning on the Lease Commencement Date (as defined in the Lease) and ending on December 31, 2012, unless sooner terminated in accordance with the terms of this Sublease or the Lease. 2. Rentable Area. The rentable area of the Sublet Premises herein stated is based upon the determination by Landlord's space planner, and Sublandlord shall not be liable to Subtenant for any representations related to the actual number of rentable square feet available. In addition, Subtenant has inspected the Sublet Premises and is thoroughly familiar with it. 3. Use. Subtenant shall not use the Sublet Premises for any purpose other than as a restaurant, including such purposes as ordinarily and customarily are required for the use of the Sublet Premises as a restaurant. 4. Rent. Subtenant shall pay to Sublandlord during the Term an annual rental (collectively "Rent") equal to rent pursuant to the primary Lease for the Sublet Premises, including any added rent or rental increases or utilities and insurance that may be required, and in all other ways satisfying all obligations of the primary Lease. If any insurance policy required to be maintained by Subtenant under this Sublease is in default for any reason, Sublandlord may purchase insurance or make payments or otherwise take any steps needed to correct the default and charge it to Subtenant as added rent, which shall immediately be due to Sublandlord. All payments of Rent shall be paid without demand, offset or deduction at the office of Sublandlord or at such other place as Sublandlord may designate, and otherwise in the same manner and in accordance with the same terms and conditions as are set forth in the Lease. Subtenant shall maintain and fully pay all utilities at the Sublet Premises. If any utilities are unpaid by Subtenant, Sublandlord may pay the utilities and the cost of paying the utilities shall be added rent immediately payable to Sublandlord by Subtenant. 5. Subleasehold Improvements. 5.1 All improvements to the Sublet Premises shall be made by Subtenant at the Subtenant's expense and in accordance with all requirements of the Lease. Subtenant shall not install, construct, demolish, or alter in any fashion any part of the Sublet Premises or any part thereof without Sublandlord's and Landlord's prior written approval. 5.2 Subtenant may improve the Sublet Premises only at Subtenant's sole cost and expense. All provisions the Lease governing construction matters, including preparation and approval of design documents and hiring of contractors, shall be fully applicable to Subtenant's improvement of the Sublet Premises as if the terms "Landlord," "Tenant" and "Premises," wherever appearing therein, were amended to read, respectively, "Sublandlord," "Subtenant" and "Sublet Premises." 5.3 Subtenant shall provide to Sublandlord its proposal with respect to any signage for the Sublet Premises, and no such signage shall be installed by Subtenant without Sublandlord's prior written approval, which approval shall not be unreasonably withheld or delayed. 5.4 All fixtures attached to the Sublet Premises (other than Subtenant's trade and business fixtures and equipment) shall, unless Sublandlord gives Subtenant notice to remove them at the time Sublandlord approves Subtenant's installation thereof, remain at the Sublet Premises at the expiration or sooner termination of this Sublease and become the property of Sublandlord without payment therefor. With respect to those fixtures which Sublandlord gives Subtenant notice to remove at the time Sublandlord approves Subtenant's installation thereof, such fixtures shall be removed at the sole cost of Subtenant before the expiration or sooner termination of this Sublease, and in such event, Subtenant shall repair all damage to the Sublet Premises caused by the installation or removal thereof and shall restore the Sublet Premises to its original improved condition (ordinary wear and tear excepted), on or before the expiration or termination of this Sublease. Should Subtenant fail to remove the same or to restore the Sublet Premises as aforesaid, Sublandlord may cause same to be removed and/or the Sublet Premises to be restored at Subtenant's expense, and Subtenant hereby agrees to pay Sublandlord the actual cost of such removal and/or restoration, together with any and all damages which Sublandlord may suffer and sustain by reason of the failure of Subtenant to remove the same and/or restore the Sublet Premises as herein provided, on demand as Additional Rent. 6. Terms of Lease Incorporated. This Sublease is subject and subordinate to all of the terms and 2 conditions of the Lease, each of which is hereby incorporated herein by reference and made a part hereof. The parties agree, with respect to the Lease, as follows: 6.1 The terms, covenants and conditions contained in the Lease shall, as between Sublandlord and Subtenant, constitute the terms, covenants and conditions of this Sublease, except to the extent that they are inapplicable hereto or inconsistent herewith. The parties hereto specifically agree that in no event shall Subtenant be entitled to, or claim, any of the rights conferred upon Sublandlord under the Lease, including without limitation: the right to any alteration or redecoration allowances, or allowances of any other nature whatsoever, or any right or claim to any insurance proceeds, condemnation awards, rights to non-disturbance agreements, options to renew, options to expand or the like, any right of early termination, or any right similar or dissimilar to any of the foregoing. 6.2 Subtenant shall not do or permit to be done, with respect to the Sublet Premises or Subtenant's interest in this Sublease, any act or thing which will constitute a breach or violation of any of the terms, covenants or conditions of the Lease. 6.3 Subtenant shall fully and faithfully observe and perform, with regard to the Sublet Premises and Subtenant's interest in this Sublease, all of the duties and obligations contained in the terms, covenants and conditions of the Lease to be observed or performed by Sublandlord as tenant under the Lease. 6.4 Sublandlord, in its relations with Subtenant hereunder, shall have all of the rights and remedies afforded to Landlord in its relations with Sublandlord as tenant as set forth in the Lease. Without limiting the generality of the foregoing, (i) the consent of Sublandlord shall be required for any action of Subtenant which, pursuant to the Lease, would require the consent of Landlord as to the tenant, and (ii) Sublandlord shall have the same right to prescribe regulations as to Subtenant's use and occupancy of the Sublet Premises as is afforded Landlord in the Lease. 6.5 Sublandlord is hereby released and relieved of (i) all of the obligations of Landlord as set forth in the Lease, and (ii) any liability to Subtenant for any default by Landlord under the Lease or any failure by Landlord to perform any of its obligations thereunder. Subtenant agrees and acknowledges that Sublandlord is not in control of the Building or of any of the services or facilities that may be appurtenant to or supplied at the Building or by Landlord under the Lease. Sublandlord shall not be responsible for any failure or interruption, for any reason whatsoever, of any such services or facilities; and Subtenant agrees that no failure to furnish, or interruption of, any such services of facilities shall give rise to (i) any abatement, diminution or reduction of Subtenant's obligations hereunder, except to the extent that Sublandlord's obligations under the Lease are abated, diminished or reduced thereby, (ii) any constructive eviction, whether in whole or in part, or (iii) any liability on the part of Sublandlord. If there shall be any failure to furnish, or interruption of any of, such services or facilities and Subtenant gives notice thereof to Sublandlord, Sublandlord shall, to the extent permitted under the Lease, make reasonable and diligent efforts to cause Landlord under the Lease to furnish the same, but Sublandlord need not bring any action or proceeding against the Landlord under the Lease in connection therewith. In any event, Subtenant shall not request Sublandlord or Landlord to furnish any additional services, and Sublandlord shall have no obligation to request Landlord to do so, unless Subtenant agrees to pay for such services. 3 6.6 Subtenant acknowledges that the rights granted to it under this Sublease are not in any sense greater or broader than the rights granted to Sublandlord as tenant under the Lease. 7. Insurance. 7.1 Subtenant's Insurance. Subtenant shall maintain, with Sublandlord, Valley View Restaurant, Inc., Landlord and "Agent" (as such term is defined in the Lease) named as additional insureds, such liability and other insurance as is required to be maintained by the tenant under the Lease, with such limits and otherwise in accordance with such requirements as are set forth in the Lease. Such insurance also shall name as additional insureds such other parties as Landlord shall specify. 7.2 Waiver of Subrogation. Sublandlord and Subtenant hereby release each other from any and all liability or responsibility to each other or anyone claiming through or under them by way of subrogation or otherwise for any loss or damage to property covered by any fire and extended coverage insurance then in force, even if such fire or other casualty shall have been caused by the fault or negligence of the other party, or anyone for whom such party may be responsible, provided, however, that this release shall be applicable and in force and effect only to the extent of and with respect to any loss or damage occurring during such time as the policy or policies of insurance covering said loss shall contain a provision to the effect that this release shall not adversely affect or impair said insurance or prejudice the right of the insured to recover thereunder. Sublandlord and Subtenant shall each cause their respective insurers to include such a provision in their respective policies, subject, however, to the following provisions: If at any time the fire insurance carriers issuing fire insurance policies to Sublandlord or Subtenant shall exact an additional premium for the inclusion of such or similar provisions, the party whose insurance carrier has demanded the premium (the "Notifying Party") shall give the other party hereto notice thereof. In such event, if the other party requests, the Notifying Party shall require the inclusion of such or similar provisions by its fire insurance carrier, and the requesting other party shall reimburse the Notifying Party for any such additional premiums for the remainder of the term of this Lease. If at any time any such insurance carrier shall not include such or similar provisions in any fire or extended coverage insurance policy, then, as to loss covered by that policy, the release set forth in this Section 7.2 shall be deemed of no further force or effect. The party whose policy no longer contains such provision shall notify the other party that the provision is no longer included in the policy, but a failure or delay in giving such notice shall not affect such termination of the release set forth in this Section. During any period while the foregoing waivers of right of recovery are in effect, the party hereto as to whom such waivers are in effect shall look solely to the proceeds of such policies to compensate itself for any loss occasioned by fire or other casualty which is an insured risk under such policies. 8. Subtenant's Defaults; Sublandlord's Remedies. 8.1 Defaults. If any of the following shall occur: 8. 1.1 Subtenant does not pay in full when due any installment of rent or any other charge or payment whether or not herein included as rent; or 8.1.2 Subtenant violates or fails to perform or otherwise breaks any covenant, agreement or condition 4 herein contained or any other obligation of Subtenant to Sublandlord; or 8.1.3 Subtenant does not occupy the Sublet premises within sixty (60) days after the Lease Commencement Date; or 8.1.4. Subtenant removes or attempts to remove Subtenant's property or property of Valley View Restaurant, Inc., from the Sublet Premises other than (i) in the ordinary course of business or (ii) to replace the subject furniture or equipment, in either case without having first paid to Sublandlord in full all Rent and any other charges that may be due during the entirety of the Term; or 8.1.5 Subtenant becomes the subject of commencement of an involuntary case under the federal bankruptcy law as now or hereafter constituted, or there is filed a petition against Subtenant seeking reorganization, arrangement, adjustment or composition of or in respect of Subtenant under the federal bankruptcy law as now or hereafter constituted, or under any other applicable federal or state bankruptcy, insolvency, reorganization or other similar law, or seeking the appointment of a receiver, liquidator or assignee, custodian, trustee, sequestrator (or other similar official) of Subtenant or any substantial part of its property, or seeking the winding-up or liquidation of its affairs and such involuntary case or petition is not dismissed within sixty (60) days after the filing thereof, or if Subtenant commences a voluntary case or institutes proceedings to be adjudicated a bankrupt or insolvent, or consents to the institution of bankruptcy or insolvency proceedings against it, under the federal bankruptcy laws as now or hereafter constituted, or any other applicable federal or state bankruptcy, reorganization or insolvency or other similar law, or consents to the appointment of or taking possession by a receiver or liquidator or assignee, trustee, custodian, sequestrator (or other similar official) of Subtenant or of any substantial part of its property, or makes any assignment for the benefit of creditors, or admits in writing its inability to pay its debts generally as they become due, or fails to generally pay its debts as they become due, or if Subtenant, its partners, shareholders, or any committee thereof takes any action in contemplation of any of the foregoing, then: 8.2 Sublandlord's Remedies. In any such event set forth above, and at the sole option of Sublandlord: 8.2.1 The whole balance of Rent and any other charges, whether or not payable as Rent, for the entire balance of the Term and any renewal or extension thereof for which Subtenant has become bound, or any part of such Rent and charges, and also all or any costs and sheriffs, marshall's, constable's or other official's commissions, whether chargeable to Sublandlord or tenant, including watchman's wages, shall be taken to be due and payable and in arrears as if by the terms of this Sublease said balance of Rent and such other charges and expenses were on that date payable in advance (and Sublandlord hereby agrees that it shall endeavor, in good faith, to mitigate its damages, provided that (i) Sublandlord shall not be obligated to sublease less than all of the Sublet premises or accept economic terms which would yield less actual rentals to Sublandlord than would have accrued in the aggregate under this Sublease on a per annum basis, and (ii) Sublandlord shall not be prohibited or prevented from exercising all remedies available against Subtenant during the pendency of any mitigation efforts); and/or 8.2.2 The Term of this Sublease shall terminate and become absolutely void, without notice and without any right on the part of Subtenant to save the forfeiture by payment of any sum due or by other 5 performance of any condition, term, agreement or covenant broker; and/or 8.2.3 Any prothonotary or attorney of any court of record may appear for Subtenant in any and all actions for Rent in arrears or treated as if in arrears, and for charges, whether or not payable as Rent, and may sign for Subtenant an agreement, for which this Sublease shall be his sufficient warrant, for entering in any competent court an amicable action or actions in assumpsit for the recovery of arrears of Rent and Rent treated as if in arrears, and the said charges, and in any suits or in said amicable actions to confess judgment against Subtenant for all arrears of Rent and Rent treated as if in arrears and the said charges, and for interest and costs, together with an attorney's commission of ten percent (10%) thereof. Such authority shall not be exhausted by any one or more exercise thereof, but judgment may be confessed from time to time as often as any Rent in arrears or Rent treated as if in arrears or charges fall due and are not paid. Such powers may be exercised during as well as after the expiration or termination of the original Term and during and at any time after any extension or renewal of the Term; and/or 8.2.4 When this Sublease shall be terminated by covenant or condition broken, either during the original Term or any renewal or extension thereof, and, also when and after the Term hereby created or any renewal or extension thereof shall have expired, it shall be lawful for any attorney as attorney for Subtenant to file an agreement for entering any competent court an action for judgment in ejectment against Subtenant and all persons claiming under Subtenant for the recovery by Sublandlord of possession of the Sublet Premises, for which this Sublease shall be his sufficient warrant, whereupon if Sublandlord so desires, a Writ of Possession may issue forthwith, without any prior writ or proceedings whatsoever, and if for any reason after such action shall have been commenced, it shall be cancelled or suspended and possession of the Sublet Premises remains in or is restored to Subtenant, Sublandlord shall have the right upon any subsequent default or upon the expiration or termination of this Sublease, or any renewal or extension hereof, to bring one or more actions in ejectment as hereinbefore set forth to recover possession of the Sublet Premises; and/or 8.2.5 In any action in ejectment, or in assumpsit for Rent or charges, Sublandlord shall cause to be filed in such action an affidavit setting forth the facts necessary to authorize the entry of judgment and if a true copy of this Sublease (and of the truth of the copy, such affidavit shall be sufficient proof) be filed in such action, it shall not be necessary to file the original as a warrant of attorney, notwithstanding any law, rule of court, custom or practice to the contrary. Subtenant releases to Sublandlord, and to any and all attorneys who may appear for Subtenant, all procedural errors in any proceedings taken by Sublandlord, whether by virtue of the powers of attorney contained in this Sublease or not, and all liability therefor. Subtenant expressly waives the benefits of all laws, now or hereafter in force, exempting any property within the premises or elsewhere from distraint, levy or sale. Subtenant further waives the right to any notice to remove as may be specified in the Pennsylvania Landlord and Tenant Act of April 6, 1951, as amended, or any similar or successor provision of law, and agrees that zero (0) days notice shall be sufficient in any case where a longer period may be statutorily specified; and/or 8.2.6 After reentry or retaking or recovering of the Sublet Premises, whether by way of termination of this 6 Sublease or not, Sublandlord may lease the Sublet Premises or any part or parts thereof to such person or persons upon such terms as may in Sublandlord's discretion seem best for a term within or beyond the Term of this Sublease, and Subtenant shall be liable for any loss of Rent for the balance of the Term and any renewal or extension for which Subtenant has become bound, plus the reasonable costs and expenses of reletting and of making repairs and alterations to the Sublet Premises. Further, Subtenant, for itself and its successors and assigns, hereby irrevocably constitutes and appoints Sublandlord as Subtenant's agent to collect the rents due and to become due from all subleases and apply the same to the Rent due hereunder without in any way affecting Subtenant's obligation to pay any unpaid balance of Rent due or to become due hereunder; and/or 8.2.7 Sublandlord may (but shall not be obligated to do so), in addition to any other rights it may have in law or equity, cure such default on behalf of Subtenant, and Subtenant shall reimburse Sublandlord upon demand for all costs incurred by Sublandlord in curing such default. 8.3 Notice of Default. Except as to defaults under Sections 8.1.3, 8.1.4, or 8.1.5, Sublandlord shall not exercise any right or remedy provided for in this Sublease or allowed by law because of any default of Subtenant, unless Sublandlord shall have first given written notice of such default of Subtenant, and Subtenant, and within a period of ten (10) days thereafter, Subtenant shall have failed to pay the sum or sums due if such default consists of the failure to pay money, or, if such default consists of something other than the failure to pay money, Subtenant shall have failed within thirty (30) days after such notice from Sublandlord to correct such default, or if such default is not susceptible of being corrected within the aforesaid thirty (30) days, after such timely commencement Subtenant fails actively and diligently in good faith to proceed with and continue to the correction of the default until it shall be fully corrected; provided, however, that Sublandlord shall not be required to give, and Subtenant shall not be entitled to the benefit of, any such notice or grace period (A) more than two (2) times in any twelve (12) month period for any monetary defaults, or (B) for multiple non-monetary defaults which are in nature similar, where Sublandlord has given Subtenant notice of the first such default and the grace period respecting same is unexpired and the default remains uncured, or (C) if in Sublandlord's reasonable judgment, Subtenant's delay in curing such default would materially jeopardize the Sublet premises, the Demised Premises, or any occupants thereof. 9. Notices. Any notices given or required to be given by either party to the other, shall be in writing and shall be deemed given if delivered personally underwritten acknowledgment of receipt (or, if either party shall have vacated their respective space in the Building, when mailed by United States certified mail, return receipt requested), to the respective addresses set forth at the outset. The address to which all notices are to be sent may be changed by the parties from time to time by giving notice of such change in writing by certified mail delivered to all parties to this document.. 10. Indemnification. Subtenant hereby agrees to indemnify and save Sublandlord and its constituent partners harmless against and from any or on all claims by or on behalf of any person or persons, firm or firms, corporation or corporations, or other entity, arising from: (a) any negligent act, error, or omission of Subtenant or of any of Subtenant's servants, employees, contractors, agents, or invitees in or about the Building or the Sublet Premises; (b) any damage or injury to persons or property occurring upon or in connection with the use or occupancy of the Sublet Premises; and (c) such indemnity shall extend against and include all costs, counsel fees and expenses and liabilities reasonably incurred in connection with any such claim or action or proceeding brought with respect thereto; and in case any action or proceeding is brought against Sublandlord by reason of any such claim, Subtenant, upon notice from Sublandlord, covenants to resist and/or defend at Subtenant's expense such action, claim, or proceeding. In no event shall the foregoing obligation to indemnify extend to claims arising out of the negligent acts, errors or omissions of Sublandlord or its servants, employees, contractors or agents. 11. Assumption of Risk; Release. Subtenant, as a material part of the consideration to Sublandlord, hereby assumes all risk of damage to property or loss of property in, from, upon, or about the Sublet Premises from any source and to whomsoever belonging, and Subtenant hereby waives all claims in respect thereof against Sublandlord except claims based upon the gross negligence or willful misconduct of Sublandlord, its servants, agents or employees, and Subtenant agrees to indemnify, defend, and save Sublandlord harmless from and against any such claims by any other party. Without limiting the foregoing, neither Sublandlord nor its agents or employees shall be liable for and Subtenant hereby releases them from (a) any damage to property of Subtenant or of others entrusted to employees of Landlord, (b) the loss or damage to any property of Subtenant by theft or otherwise, (c) any injury or damage to persons or property resulting from fire, explosion, falling plaster, steam, gas, electricity, electrical disturbance, water, rain or snow or leaks from any part of the Building or from the pipes, appliances or plumbing works or from the roof, street, or sub-surface or from any other place or by dampness or by any other cause of whatsoever nature (whether similar or dissimilar to those above specified), unless caused by or due to the gross negligence of Sublandlord, its agents, servants or employees, or (d) any such damage caused by other tenants or persons in the Building or caused by operations in construction of any private, public or quasi-public work. 12. Mortgage; Assignment. Subtenant shall not sell, mortgage or assign this Sublease, or sublease any part or all of the Sublet Premises, without prior written consent of both Landlord and Sublandlord; such consent shall be at the sole discretion of Landlord and Sublandlord. Any attempt by Subtenant to mortgage, assign or sublease, where such consent is required, without the prior written consents of Landlord and Sublandlord, shall be void and of no effect. 13. Termination. This Sublease shall terminate and expire at midnight at the close of the last day of December 31, 2012 without the requirement of any further notice by either party to the other, and without any right on the part of Subtenant to renew or extend the Term. The parties may agree in writing to extend the Sublease term prior to that occasion only in a writing signed by Subtenant, Sublandlord and Landlord. 14. Landlord Approval. This Sublease shall not be effective until (i) executed by Sublandlord and Subtenant, and (ii) approved by Landlord and the holder of any mortgage encumbering the Building. If the Landlord or such mortgagee shall refuse to consent to this Sublease, Sublandlord shall not be obligated to take any action to obtain such consent, and this Sublease shall thereupon be void and of no effect. 15. Miscellaneous. 15.1 Time is of the essence of this Sublease and of the performance by Subtenant and Sublandlord of each 8 and every term and condition of this Sublease and of each and every term and condition of the Lease which the Subtenant and Sublandlord have herein agreed to keep and perform. 15.2 This Sublease contains all of the agreements between Sublandlord and Subtenant and may not be modified except by a written instrument duly executed by the parties. 15.3 Subject to the provision of Section 14, the terms and conditions of this Sublease shall extend to and be binding upon the heirs, successors and assigns of the respective parties. 15.4 Failure on the part of either party to complain of any act or failure of the other party, or to declare the other party in default, irrespective of how long such failure continues, shall not constitute a waiver by either Sublandlord or Subtenant of its respective rights hereunder. A giving of consent by Sublandlord or Subtenant in any one instance shall not limit or waive the necessity of obtaining such consent in the future. 15.5 The captions contained in this Sublease are for convenience of reference only, and shall not be deemed a part of the text of this Sublease, or to provide any interpretation thereof. 15.6 If any term or provision of this Sublease or of the Lease, as the same applies to Sublandlord and Subtenant, shall be held invalid or unenforceable, the remainder of the Sublease and the Lease, as applicable, shall not be affected thereby, and each term and provision of this Sublease and the Lease, as applicable, shall be valid and enforceable to the full extent permitted by law. 15.7 The word "person" as used herein shall mean any natural person, partnership, corporation, or any other form of business or legal entity. 15.8 All words or terms used in this Sublease, regardless of the number or gender in which they are used, shall be deemed to include any other number and any other gender as the context may require. 15.9 Each party represents and warrants to the other that it has dealt with no broker, agent, or other intermediary who might be entitled to receive a commission in connection with the existence, execution or delivery of this Sublease, and each shall indemnify, defend and hold the other harmless from and against any breach of such respective representations and warranties. 15.10 The parties hereto acknowledge and agree that nothing contained in this Sublease is intended to create between them a joint venture or a partnership of any kind, and the relationship between them evidenced by this Sublease is as sublandlord and subtenant only. 15.11 This Sublease and its terms and conditions shall be governed by the laws of the Commonwealth of Pennsylvania. 15.12 Sublandlord shall be given keys (or equivalent) to all locks on doors within or to the Sublet premises. 9 IN WrTNESS WHEREOF, this Sublease has been duly executed by Sublandlord and SubWm as o date first above written. t, of the By: ? ?` I." XA\b? 0 w 0x D z W 10AETRO 1 NWW BANK U W J w w 903 E. MAIN STREET W 0 PALMYRA PA 17078 - o O°zo V ? w ?n g r? PAY 1 G S•i3 U E Lu Wi TO THE ORDER OF W 2oma Z J N = Lu Z rj) - (n HW wx o V O¢c)Ln ? ZxLo 0wz a W M 0 I w m .?y=...i d j-F"an i RE: oN xo8 Od Jo o 4fd 1-?( ----- f oN -? Y yaaJ7S ---?.?,.,1 -------- ------ -- T'aL? 7 - o JUas W $ seaj *d 96E1sod IElo1 ' Z7 Si IiC?Zl9il4?? 65 Ln (pannbea luawas)Wu3) CI _ aaj /uanl180 P8l0!J;S9 j C1 (Winbou tuaw9sJ0pu3) p 918H (j^L'Zf eaj tdiaoau wntau O >tJZWy50Ci 98=1 pegpJaO RJ gt? S8' ?f 0 $ efizisod L-j stbtl S3'?1# _ -J IF W A Ln , unsul ON • ' V&IW r . r r -?] u G Ln 'Q- to II Lf) ¢ t{' `* I±) oo v ?+ a .-+ ? its u C C CD n CV CV rGL!7 a Lo Z LL 0- Y. t O Lo C'J G I C O + a) C •--? O tQ O) 0 Y U \ ;-D 231 -? c- 7 n Lr' to >.Ob 1 t` U O d. r 7 m wrn m tO m m G.- 43 .-- >. .t U O d?O!V m (6Y cry O _ nc r, ? a r oo ?r CD n Z) ea m ,2C C-3 0 Q i L O ¢ I Y m+.O C-_ CD -1 U> LD ON CL C'i 5 h--I C > Z L- - 7 s7C m • - L- O U !t-. E L a D N 1 Y Q. O Q rte-. r Y C `r =-__ n m \ 4 ?y U) ,--? fG > U O C Y - X m 3 CD GWLl'U ?U I-'-'I CD C -1: 1--1 0 Y CC: )LLi NV 3?tiJ CD 1? G C'7 to G m D 13-..0.9.4 3 4 NON-NEGOTIABLE L a# x Y `4-- x x Cf) x ac -.- x ? • O ? x r? ±r it I is -% +-? J x x 3 mY x x C x x ,E U [6 < x m? 3: 0-1 C x ?c US x Y - x K o-, ao x x ay x + - 00 x is >. - X x is a O L 1 xc x X O x ? x LCG O x ? .n r1 3- x x L y\ x x In ft1 Dx x 3U E:x -X U m x x-23 'Y U x x O x :? (Q G In x J O _ ,=Ex x ?2Yx x j; N -.- ? x rc - ' 9 x it r6 rQ y K y rr -;c y y - r •n L7 ? < i n .n G < =F _O O < < >. X y G 2 ±c .; r O<< v C? L yc i? Y Y .sue >; +' L I 00 x x a) -- J< '-' Ll * x G 3 :L' tl5 7.C C i t11 ? co C C. U U ?? x x t6 x 'X y l x x 0 x x y n +? LC U y x x L11 > -- x H m U) _t-t y 3 x x M U. +A x G x O D K r. m11) Y 71 O J1 i a x 'F ill x x .7 00 O 00 iQ 4-- x x U) f` ."77 0 x -?c l!J r? ci _ o C) A C x x LJ..I C) w tr R) 3e = CD 7 L x Cl) n ?~ * Y ? ^ ,_ m x yc x Y x x :n G E O U N iJ r v L y fl N 2 if. r a) a) m (D m > Q E m o E U VjL Ta) of -a a O Y- Q N N'2 w V Y E m L o m c ?ct.o O_ Co m lz - 0) 79 5Z0 o (D N . N E EEm m`c m N EN U U 0 m¢myw a .? EEcwc?oo O m i O y U._a cnQ `o a) N N O z V W m N E 3 E a a m r @ a al U ??? ' - - m m m a v L ? al z N r? L ? ?} C? y= m ??? o v; i? .a v N ID ., Q i? D 7 I R rl u'1 f?- ru C3 0 O C3 L1 m O M h -m _U G N a u7 N Off N O m c U .y a) O 0 0 0 Z co m T LL 0) a -91 I• I• Y W o? W °? y 11 j1h&ITR0 BANK W W 9 M E. MAIN MEET P A 17 ix p AAL MYPJ, P 0 8 0 $ U -Z y p ? UISSEP'E AND GIOVANNI BAROf4E PAY V = O 5 TO THE ORDER OF W HzmN Th;. m* f h {u iand rv,,o Hundred Forty #?If hooftrs a Eig fi Ceint' S w gm - --- St 1 3-2 4 4, &0 DOLLARS 3450 0002 0176 4928 w F U1 - 0 11 V z$°C N U = ~ -.- aW = o: 0 7? r: E M N0 1"NEGOTIABLE RE: -I MM M c L a° m ? on °S r r?r eae• 4 tom"'" c„ 1cm A A La A, s 3. -7hiee /l?ou 5a h J ?o Agp? ? 8ft on ;• =J-V 60-1205/31: ? ?AL`EtQ° ? -EIVOLA,sFA`t78?5 . ?atc ®? - Q?- 1 Jonestown Bonk,& Trust a. ® 1 town, Pennsylvania 17038 1:03 L3 L 20551: 831"7 L6rrl Lna JUSTeeACHY 11 6;a- Qu ? i< r'. 0" -'x 3D CY) ic N 00 a O. O L Oi ? ? ? X O i?c ? m r-10 @ L. @ O U @ i< is -0;;: U i< is ix <1 00 r- a » CEtc icLO it N 41 Q 0 O d ? V C` 9 O D Q, fI> O N N OD n lS) W) to O it d is ++ Y- i< is .C co N i< •r # ? N L y} (flfAN n FA 49 FAd! @ O i< ? Q is i< l0 ?C O]C O # is V 47Ua3NK i< a3C . # L 0 O CD is i< 3 to N 9c is C O ++ @ G\D O > O h O h U ? a \ O h W) t it # L -M O i< i< W Cn 3 .--. i< # @ Q # ? i I >.OD ?• ? 0 'qr #3U£%? CO fW? ? _? C7 L t0 O O ?- U i? i< O is # ? e L U O ?BN a7? w - OMC i< i< C? - K i< Cn ++ ? O ? X 4f O e) x i< _ ?OnDO a3 N0 LO @ Am ? O^++ 0.1 i?c !=i-I ma ? ? ? C' U .r 33 ? ? ? ? Q 0-41 @ Y - c ?- ® Q CL*- N i c i N N .-- C i< is .? L @ O_ C Ul p Q -- - CL 0__r_- ic ic @ 7 C is # ra O Z != U? H @ E N K i< E U -- i< N ? •-+ O ?- ++ 3 - O U 10M @ • • } N @ M @ Lis i< @ ?- ? K N Y Q - F- -.- it O_ O ++ C `F - • O ++.++ ++ @ i< i< L w E Ic # V) N C .C i< i< O O k i< \ h U ?- 7L ' W .-? L J ? @ O@U1-?@ ? -0 @ O ? -.-- i< O n6 LOLOic is ?. Xie ie O O U p @ ++ In Q i•+ L ? @ aS ? .C C W C3 Q i< i< L O is i< \ ' h O@ L@ OCY X@@@ @ ++ @a am Lic i[Y++m ic it O M Cl H O @ M N J O WdUJ H O Q @S 1- Q U U L? 0 0 is i< @?- is K O +-•4 ++ Li_ is I. G7 3 0 x .# 13-09483 0505 _L u: ;c ? ++ z ?W Z % E N < (D c 0 41C NI ca co c cli I- >1 -x C, C) v-o w ?a m a oi< ? CD (A = 4, 319 N N - m ¢Q # # C.OJ ? ? N N N i< +? O i< do E i< i< 'O V C ? # ? U W ? N I.C C >.-?- i< i< 1-- C U Cn # is c i N ?c ? ? ? # m L ? UW 2 i? Z O ? x O. K It :D @ fL W O is i< [ g •a c- ?% i? 0 Q O H U is i< < +?+mOd icy m ?I?j,? Z? ? 4L l0 CO L5 L O i i< % i< W W O H '% N ? N? C ? N I?11 Q J ? O @ @ 0: i< S i-' W is is @ iC iC Y iC i[ ' O U is is '. X0 b? J GUISEPPE BARONE and GIOVANNI IN THE COURT OF COMMON PLEAS BARONE, CUMBERLAND COUNTY, PENNSYLVANIA PLAINTIFFS g: VS. NO. 09-6533 CIVIL TERM BRANDON C. POWERS, DEFENDANT ACTION IN EJECTMENT PRAECIPE FOR WRIT OF POSSESSION UPON A CONFESSED JUDGMENT TO THE PROTHONOTARY: -. C a "7 " ,_ M? , Please issue a Writ of Possession upon the judgment in ejectment entered by confession in the above matter for the real property located at 700 Valley Street, East Pennsboro Township, Cumberland County, Pennsylvania. I certify that: (1) this Praecipe is based upon a judgment entered by confession, and (2) notice pursuant to Rule 2973.2 has been served at least thirty (30) days prior to the filing of this Praecipe as evidenced by a return of service filed of record. Respectfully submitted, Robert P. Kline, Esquire Attorney ID #58798 Kline Law Office 714 Bridge Street Post Office Box 461 New Ciumberland PA 17070 (717) 770-2540 CERTIFICATE OF:SERVICE I hereby certify that I served a true and correct copy of the foregoing Praecipe for Writ of Possession Upon a Confessed Judgment upon Defendant, by depositing same in the United States Mail, first class, postage pre-paid on the 17th day of June, 2011, from New Cumberland, Pennsylvania, addressed as follows: Brandon C. Powers 700 Valley Road Enola, PA 17025 Brandon C. Powers 383 N. 26'r' Street Camp Hill, PA 17011 Joseph N. Gothie, Esquire Gothie Van Allen, LLC 111 E. Market Street, Suite 101 York, PA 17401 ROBE T P. KLINE, ESQUIRE 714 Bridge Street Post Office Box 461 New Cumberland, PA 17070-0461 (717) 770-2540 Attorney for Plaintiffs of 1111 C) F POSSESSION (Ejectment Proceedings PRCP3160-3165 etc.) 'H E COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA I:,PPE BARONE and kNNI BARONE VS. No. 09-6533 Civil Term 11~1DON C. POWERS Costs k )rn .y's $ 160.94 1 iintilrs $ 1 :,-honotary $ 2.00 ( ()MMONWEALTH OF PENNSYLVANIA: ( (. , (_1NTY OF CUMBERLAND: :, the Sheriff of Cumberland County, Pennsylvania (1) To satisfy the judgment for possession in the above matter you are directed to deliver [)!.;;session of the following described property to: (Plaintiff (s)) (.tLlISEPPE BARONE and GIOVANNI BARONE I ,iing: (Premises as follows): F=1E REAL PROPERTY LOCATED AT 700 VALLEY STREET, EAST PENNSBORO -OWNSHIP, CUMBERLAND COUNTY, PENNSYLVANIA (2) To satisfy the costs against the defendant (s) you are directed to levy upon any r -operty of the defendant (s) and sell his/her (or their) interest therein. David D. Buell, Prothonotary, Common Pleas Court of Cumberland County, PA ::)ate JUNE 17. 2011 (Seal) G 2 of 2 No 09-6533 Civil Term IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA ... GUISEPPE BARONE and GIOVANNI BARONE vs. BRANDON C. POWERS WRIT OF POSSESSION P.R.C.P. 3160-3165 ETC. Costs Atf y $ 160.94 Plff (s) $ Prothy $ 2.00 Sheriff $ Plaintiff (s) attorney name and address: ROBERT P. KLINE, ESQUIRE KLINE LAW OFFICE, 714 BRIDGE STREET, P.O. BOX 461, NEW CUMBERLAND, PA 17070 Attorney for Plaintiff (s) By virtue of this writ, on the named appurtenances, and Where papers may be served day of , . I caused the within to have possession of the premises described with the Sworn and subscribed to before me this Day of Prothonotary So Answers, Sheriff By Deputy _ i, • . ' Ronny R Anderson Sheriff Jody S Smith Chief Deputy Richard W Stewart Solicitor Guisepee Barone vs. Brandon C. Powers SHERIFF'S OFFICE OF CUMBERLAND COUNTY 4a?intt, nt ?utuGrr?,r1 re P P, 0!1!i?j 7-A 2011 AL 12 P11 2: 02 CUMBERLAN.0 (-OUN; - 'ENNSYL'!kL'IA Case Number 2009-6533 SHERIFF'S RETURN OF SERVICE 07/07/2011 By virtue of this writ, Ronny R. Anderson, Sheriff caused the within named Plaintiff to have possession of the premises described as 700 Valley Street, Enola, PA 17025. SHERIFF COST: $90.00 SO ANSWERS, July 08, 2011 RbNWY- R ANDERSON, SHERIFF ?x?i???? GUISEPPE BARONE and GIOVANNI IN THE COURT OF COMMON PLEAS BARONE, CUMBERLAND COUNTY, PENNSYLVANIA PLAINTIFFS VS. G'l l in L N0. BRANDON C. POWERS, DEFENDANT ACTION IN EJECTMENT NOTICE UNDER RULE 2973.2 OF JUDGMENT AND EXECUTION NOTICE OF DEFENDANT'S RIGHTS To: Brandon C. Powers A judgment for possession of real property has been entered against you and in favor of the plaintiffs without prior notice and hearing based on a confession of judgment contained in a promissory note or other document allegedly executed by you. The sheriff may remove you from the property at any time after thirty 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 being removed from the property. ANY PETITION SEEKING RELIEF FROM THE JUDGMENT MUST BE FILED 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, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW. THIS OFFICE CAN PROVIDE YOU WITH INFORMATION ABOUT HIRING A LAWYER. IF YOU CANNOT AFFORD TO HIRE A LAWYER, THIS OFFICE MAY BE ABLE TO PROVIDE YOU WITH INFORMATION ABOUT AGENCIES THAT MAY OFFER LEGAL SERVICES TO ELIGIBLE PERSONS AT A REDUCED FEE OR NO FEE. Cumberland County Bar Association 32 S. Bedford Street Carlisle, PA 17013 (717) 249-3166 ROBERT P. KLINE, ESQUIRE Attorney for Plaintiffs 714 Bridge Street Post Office Box 461 New Cumberland, PA 17070-0461 (717) 770-2540 GUISEPPE BARONE and GIOVANNI BARONE, PLAINTIFFS VS. BRANDON C. POWERS, DEFENDANT To: Brandon C. Powers 383 N. 26`x' Street Camp Hill, PA 17011 IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA NO. : ACTION IN EJECTMENT Pursuant to Pa.R.C.P. 236, you are hereby notified that a Judgment By Confession has been entered against you in the above proceeding for the possession of 700 Valley Street, East Pennsboro Township, Cumberland County, Pennsylvania, on r-1 LW A copy of all documents filed with the Prothonotary in support of the within judgment are enclosed. Date: A ?i4f Pro notary Civ' i isi If you have any questions regarding this Notice, please contact the filing parry: Robert P. Kline, Esquire Kline Law Office 714 Bridge Street P.O. Box 461 New Cumberland, PA 17070 (717) 770-2540 GUISEPPE BARONE and GIOVANNI IN THE COURT OF COMMON PLEAS BARONE, CUMBERLAND COUNTY, PENNSYLVANIA PLAINTIFFS VS. NO. BRANDON C. POWERS, DEFENDANT ACTION IN EJECTMENT PRAECIPE FOR ENTRY OF CONFESSION OF JUDGMENT OF POSSESSION OF REAL PROPERTY TO THE PROTHONOTARY: Pursuant to the authority contained 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 Defendant and confess judgment in ejectment in favor of the Plaintiffs and against the Defendant for possession of the real property described as follows: 700 Valley Street, East Pennsboro Township, Cumberland County, Pennsylvania, Tax Parcel No. 09-12-2993-073. Respectfull ubmitted, Robert P. Kline, Esquire Attorney ID #58798 Kline Law Office 714 Bridge Street Post Office Box 461 New Cumberland, PA 17070 (717) 770-2540 GUISEPPE BARONE and GIOVANNI IN THE COURT OF COMMON PLEAS BARO_NE, CUMBERLAND COUNTY, PENNSYLVANIA PLAINTIFFS %7 NO. BRANDON C. POWERS, DEFENDANT ACTION IN EJECTMENT COMPLAINT IN EJECTMENT AND NOW, come the Plaintiffs, Guiseppe Barone and Giovanni Barone, by their attorney, Robert P. Kline, Esquire, who state as follows: Plaintiffs are Guiseppe Barone and Giovanni Barone, adult individuals who reside at 1400 Old Reliance Road, Middletown, Dauphin County, Pennsylvania 17057. 2. Defendant is Brandon C. Powers, an adult individual who resides at 3 83 North 26'' Street, Camp Hill, Cumberland County, Pennsylvania 17011. Plaintiffs are the owners of certain real property located at 700 Valley Street, East Pennsboro Township, Cumberland County, Pennsylvania, by virtue of a deed recorded September 8, 2005 in Cumberland County Deed Book 270 at page 4399, attached hereto as Exhibit "A". 4. On or about July 1, 2008, Plaintiffs and Defendant entered into a "Triple Net Commercial Lease" for the lease of the property at 700 Valley Street, East Pennsboro Township, Cumberland County, a copy of which is attached hereto as Exhibit "B". 5. Paragraph 2 of said Lease Agreement provides, in part, that rent is due on the first day of each month, that a late charge in the amount of $150.00 is due and payable when the rent is not paid by the fifth calendar day of the month, and failure to make the rental payment by the close of business on the fifteenth day of the month constitutes legal notice by the Tenant of intent to cease renting the premises effective at the end of the current month and also as a default by the Tenant under the terms of this Lease. 6. Paragraph 36 of the Lease Agreement provides, in part, that during the term of the Lease Tenant shall be responsible for and shall pay before delinquency all real estate taxes. Throughout the term of the Lease, Defendant has, on numerous occasions, paid the monthly rent after the fifth day of the month, but, in each instance, has failed to include the required late fee in the amount of $150.00 for each such payment, despite the repeated request of Plaintiffs that it be included. As of the date of this Complaint, late fees in the amount of $1,350.00 have accrued and remain due and unpaid, thereby constituting a default under the Lease Agreement. As of the 15th of September, 2009, Defendant has failed to pay the monthly rental payment in the amount of $3,000.00 for the month of September, 2009, thereby constituting a default under the Lease Agreement. Despite repeated requests by Plaintiffs, Defendant has failed to provide proof to Plaintiffs that the 2009 real estate property taxes on the property have been paid, as required by the Lease, thereby constituting a default pursuant to the terms of the Lease. 10. As a result of the Defendant's default pursuant to the Lease Agreement as enumerated in the paragraphs above, Defendant is in default of the Lease Agreement and, therefore, has forfeited his right to possession of the subject premises. 11. Paragraph 21 of the Lease Agreement provides, in part, that Landlord may confess judgment for possession of the leased premises. 12. Plaintiffs' most recent letter to Defendant, dated September 11, 2009, along with a certified mail receipt dated September 12, 2009, is attached hereto as Exhibit "C", whereby Plaintiffs advised Defendant of Defendant's default and of Plaintiffs' intention to pursue any and all remedies available pursuant to the Lease Agreement. 13. The Lease Agreement has not been assigned by the Plaintiffs to any other parry. 14. Judgment for possession has not been entered on this Lease in any jurisdiction. 15. The judgment requested herein is not being entered against a natural person in connection with a residential lease. -- WHEREFORE, Plaintiffs respectfully request that this Honorable Court eater judgment by confession for possession of the real property located at 700 Valley Street, East Pennsboro Township, Cumberland County, Pennsylvania, in their favor and against Defendant. Respectfully submitted, 2 Ot 5cfT ZO&I DATE ROBERT P. KLINE, ESQUIRE 714 Bridge Street Post Office Box 461 New Cumberland, PA 17070-0461 (717) 770-2540 Attorney for Plaintiffs DEED r 4.. ... t, .., L, v THIS DEED is made the day of August 2005?005 SEP 8 PM 3 21 ?--,.;,... BETWEEN_ CRL HOLDINGS, L.P.,-,.a- Pennsylvania limited partnership ("Grantor"), AND GIUSEPPE BARONE and GiOVANNI BARONE, adult individuals (collectively, "Grantee"): WITNESETH That the Grantor in consideration of One Hundred Eighty-Five Thousand Dollars ($185,000) paid by the Grantee to the Grantor, the receipt whereof is hereby acknowledged, does hereby grant and convey unto the Grantee: Traci Number 1: ALL THAT CERTAIN tract or parcel of land, situate in East Pennsboro Township, Cumberland County, Pennsylvania, more particularly bounded and described according to a survey of D.P. Raffensperger Associates, Registered Surveyors, dated April 19, 1973, as follows: BEGINNING at a point at the southwest comer of Valley street (Legislative Route.21051) (50 foot right-of-way) and "B" Street (erroneously identified as "D" Street in a prior deed) (50 foot right-ofway); thence along the western line of "B" Street (erroneously identified as "D" Street in a prior deed) the following courses and distances; South 13° 01' East, 15.77 feet; a Curve to the right having a radius of 245 feet, an arc distance of 93.13 feet, South 08° 45143" West, 93.65 feet to a point in line of other lands now or formerly of Dale J. Hildebrandt; thence North 03° 00' West along said Hildebrandt lands, 105.12 feet to a point; thence North 05° 48' West along the eastern line of other lands now or fonnerly of Dale J. Hildebrandt, 175.38 feet to a point in the southern line of Valley Street aforesaid, thence North 84" 12' East along said tine of Valley Street, 130 feet to a point in the westem line of "B" Street (erroneously identified as "D" Street in a prior deed), the place of BEGINNING. BOOK 270 PAU4399 EXHIBIT "A" Tract Number 2: The above-described Tract Number 1 is also shown on the site plan dated September 15, 1993, attached as Exhibit "A" hereto (the "Plan"). u BEING the same premises which CRL Holdings, L.P., a Pennsylvania limited partnership, by Corrective Deed dated July 30, 2003 and recorded in Cumberland County Deed Book 256, page 3551, granted and conveyed unto CRL Holdings, L.P., Grantor herein. UNDER AND SUBJECT, nevertheless, to all other easements, restrictions, encumbrances and other matters of record or that a physical inspection or survey of the premises would reveal. Attached as Exhibit "B" hereto and made an integral part hereof is a certain notice pursuant to the Pennsylvania Solid Waste Management Act and the Land Recycling and Environmental Remediation Standards Act (the "Notice"). All future deeds must contain the Notice unless written approval to remove the Notice is obtained from the Pennsylvania Department of Environmental Protection and evidence of such approval is placed of record with the Cumberland County Recorder of Deeds. Grantor hereby covenants and agrees that Grantor will warrant SPECIALLY the property hereby conveyed described as Tract Number 1 above. To the extent that Tract Number 2 described in accordance with the Plan includes any additional land not included in the property described as Tract Number 1 above (the 'Additional Property"), Grantor hereby covenants and agrees that Grantor does hereby release, remise and forever quitclaim to the Grantee all of Grantor's right, title and interest in and to the Additional Property. IN Wrl-NESS WHEREOF, the Grantor has caused this Deed to be duly executed as of the day and year first written above. WITNESS: ewe 2i CRL Holdings, L.P. By its General Partner CRL GP, LLC: By (2 John Byler, Co-Chairm ND By LIL Patrick J. C gna, Co-Cha' an 73 2 Gov 270 PACE4400 Will COMMONWEALTH OF PENNSYLVANIA COU NTY OF Lo.y\C-c?S \-e-? SS: On this, the %o+tii=day of , 2005, before me, a Notary Public, the undersigned officer, personally appeared John E. Byler who acknowledged himself to be the Co-Chairman of CRL GP, LLC, which is the general partner of CRL Holdings, L.P., a Pennsylvania limited partnership, and that he as such Co-Chairman, being authorized to do so, executed the foregoing instrument for the purpose therein contained by signing the name of the limited partnership by himself as such Co- Chairman. IN WITNESS WHEREOF, I have hereunto set my hand and official seal. Notary Public My Commission Expires; NOTARIAL SEAL EAL) Joneile L Lauver, Notary Public Mantolm Twp., County of Lancaster My Commission Expires April B, 2007 ^i C-] C'•) C7 C7 4-2 t7 117 ('77 -V b l'= I-r) 1? , ro ro '- L?7 m cn rr, m m m .-f• ii IN 01 , n r1 r-1 cy •--t •--t r ^ rJ W .-t m aa?? ncj+ 1 t i1i as M m .fi '9 G `? 3+ x_ SIC .?T C .. r.s ~ m m .? wcm axcn cn 11-. C r.0 --4 W x - T C'] t11 C Ll p ? E -+ ( C f••.J -1 CA - _ t.l. v7 IT. T7 --? +.•-, L'? 1 .'i .iY .± ?"i + .-•1 ITi Y r'-' fT7 fr7 I.d Y n :a ?1 a o ^Y' 7 e_i ?_' ? 7Y ,ti 1 rt Tri ^-r .in TT - { 7n 14 -{ r- o T i 2 C,r, 2 1'.7 ...?=' .73 LT. /n Z C? -41 O? =3 l0 O a? ' 9 ri 1 1 tr. +a r ro 1 r.. ID ..? •. Zo cn ? cn r_..a r.a o .-.n c c-,f c> C.., ^I BOOK 270 WEQ40i l?1 C'1 4,_ G.n te=a t"'7 O Y n c--, <> •7 Gn cn ^ t? COMMONWEALTH OF PENNSYLVANIA SS: COUNTY OF LCnQ_a,_, 4x - Qn this, the /Q +14day of Q,k , 2005, before me, a Notary Public; the undersigned officer, personally appeared Patrick J. Castagna who acknowledged himself to be the Co-Chairman of CRL GP, LLC, which is the general partner of CRL Holdings, L.P., a Pennsylvania limited partnership, and that he as such Co-Chairman, being authorized to do so, executed the foregoing instrument for the purpose therein contained by signing the name of the limited partnership by himself as such Co- Chairman. IN WITNESS WHEREOF, I have hereunto set my hand and official seal. Z-9- Notary Public My Commission Expires: (SEAL) NOTARIAL SEAL Jonelle L Lauver, Notary Public Mar"Im Twp., County of Lancaster My Commission Expires April 8, 2007 Let .. ft P+ , I?*,r",• .F• a t..V! •.i, . ; ' '? 4 Rob* 270 WE4402 CERTIFICATION of ADDRESS I hereby certify that the precise residence of the Grantee(s) in the within Deed is: 700 Valley Road ter. Enola_ PA 17011 1, ? I o errt for Grantee Recorder of Deeds BOOK 270 PACE4403 TRIPLE NET COMMERCIAL LEASE ARTICLE OF AGREEMENT this day of 2008, by and between GUISEPPE BARONE and GIOVANNI BARONE, 140 OLD RELIANCE ROAD, MIDDLETOWN, COUNTY OF DAUPHIN, PA, 17057 hereinafter referred to as the "LANDLORDS", . A N D BRANDON C. POWERS, 383 N. 26TH STREET, CAMP HILL, COUNTY OF CUMBERLAND, PA 17011, hereinafter referred to as the "TENANT". WHEREAS, the LANDLORDS is the owner of certain premises situated at 700 VALLEY ROAD, ENOLA, Township of EAST PENNSBORO, County of Cumberland and Commonwealth of Pennsylvania, hereinafter referred to as the "Leasehold Premises"; and WHEREAS, the Tenant desires to rent and lease the Leasehold Premises from the LANDLORDS, and the LANDLORDS have agreed to lease the same to the Tenant upon the following terms and conditions. NOW, THEREFORE, the parties hereto, intending to be legally bound hereby, and in consideration of the rents and covenants of the Tenant to be paid and kept as herein contained, the LANDLORDS have agreed to lease unto the Tenant, and by these presents does hereby lease the Leasehold Premises unto the Tenant, and the Tenant hereby leases the Leasehold Premises from the LANDLORDS, and the parties do covenant and agree as follows: 1. Term. This Lease shall be for a term of nine and one-half (9 1/2) years, commencing on the 1 st day `of July, 2008, and ending on the 31 st day of December, 2017. 2. Rent. Tenant shall pay to LANDLORDS, without demand or deduction, at its offices or such other places as LANDLORDS may from time to time direct in writing, the minimum monthly rental as follows: Tenant shall pay a monthly rental of Three Thousand Dollars and 00/100 ($3,000.00) on the 1st day of July, 2008 and a like sum on the 1st day of each month thereafter up to and including the December 1, 2009. Tenant shall pay a monthly rental of Three Thousand One Hundred Twenty Dollars and 00/100 ($3,120.00) on the 1 st day of January, 2010 and a like sum on the 1 st day of each month thereafter up to and including December 1, 2010. Tenant shall pay a monthly rental of Three Thousand Two Hundred Forty-Four Dollars and 80/100 ($3,244.80) on. the 1st day of January, 2011 and a like sum on the l st day of each month thereafter up to and including December 1, 2011. EXHIBIT "B" Page 1 Tenant shall pay a monthly rental of Three Thousand Three Hundred Seventy-Four Dollars and 59/100 ($3,374.59) on the 1st day of January, 2012 and a like sum on the 1 st day of each month thereafter up to and including December 1, 2012. Tenant shall pay a monthly rental of Three Thousand Five Hundred Nine Dollars and 57/100 ($3,509.57) on the 1st day of January, 2013 and a like sum on the 1st day of each month thereafter up to and including December 1, 2013. Tenant shall pay a monthly rental of Three Thousand Six Hundred Forty Nine DoLars and 95/100 ($3,649.95) on the 1st day of January, 2014 and a like sum on the 1st day of each month thereafter up to and including December 1, 2014. Tenant shall pay a monthly rental of Three Thousand Seven Hundred Ninety-Five Dollars and 95/100 ($3,795.95) on the 1st day of January, 2015 and a like sum on the 1 st day of each month thereafter up to and including December 1, 2015. Tenant shall pay a monthly rental of Three Thousand Nine Hundred Forty-Seven Dollars and 79/100 ($3,947.79) on the 1 st day of January, 2016 and a like sum on the 1 st day of each month thereafter up to and including December 1, 2016. Tenant shall pay a monthly rental of Four Thousand One Hundred Five Dollars and 70/100 ($4,105.70) on the 1 st day of January, 2017 and a like sum on the 1 st day of each month thereafter up to and including December 1, 2017. A late charge of One Hundred Fifty-five ($150.00) Dollars and 00/100 will be due and payable for each month owed when the rent is not paid by the fifth (5th) calendar day of the month. Failure to make the aforementioned rental payment by the close of business on the fifteenth. (15th) day of the calendar month will constitute legal notice by the Tenant of intent to cease=renting the premises effective after the end of the current month and also be treated as a default by the Tenant under the terms of the Lease. Renewal Option: Provided Tenant is not in default at the time it exercises its option to renew, Tenant shall have the option to renew this Lease for one (1) additional term of ten (10) years in succession immediately following the expiration of the first term. The option to renew shall be exercised by giving written notice to LANDLORDS, by certified mail, return receipt requested, of such intention to renew not less than ninety (90) days prior to the expiration of the existing term. Such renewal shall be at the terms, conditions and rents set forth herein. 3. Security Deposit. Tenant shall further pay to LANDLORDS, prior to any use or occupancy of the Leasehold Premises, a security deposit in the sum of Three Thousand Dollars ($3,000.00), to be held as security for any damages to the Leasehold Premises, or as payment, in, whole or part, for any costs or expenses incurred by the LANDLORDS resulting from;the failure of Tenant to surrender the premises in the condition described in Paragraph 19 herein. Unless withheld by the LANDLORDS, in whole or in part, by reason of any damage to the Leasehold Premises, the security deposit shall be returned to the Tenant within thirty (30) days after the termination of this Lease, provided the Tenant Page 2 has delivered to the LANDLORDS a forwarding address, in writing, at or prior to the date the Tenant shall surrender the Leasehold Premises to the LANDLORDS. 4. Utilities. During the term of this Lease, the Tenant shall be solely responsible for the payment of an y and all utilities of the Leasehold Premises, including, but not limited to, gas, electric, telephone, cable and any service fees required for the installation of these utilities. The Tenant shall also be solely responsible for the payment of any and all water' bills, sewer bills and garbage collection costs concerning the Leasehold Premises. 5. Clean and Sanitary Condition. During the term of the Lease, the Tenant shall keep and maintain the Leasehold Premises and the surrounding area in a clean and sanitary condition at all times, free of all garbage and debris. All garbage and similar debris shall be deposited by the Tenant in facilities specifically for garbage collection. Tenant shall be responsible fro placing the garbage bags and/or containers and recycling container(s) at the curb for pick-up and to return the containers to their appropriate place. Tenants shall further comply with all local ordinances and regulations imposed by the TOWNSHIP OF EAST PENNSBORO relating to maintaining the Leasehold Premises in a clean and sanitary condition and relating to the collection of garbage and similar debris. Tenant shall be solely liable for any action and/or fines that may be brought by the Township of East Pennsborp, or any other enforcement agency, as a result of the Leasehold Premises not being keptin a clean and sanitary condition. 6. Repair and Maintenance. The LANDLORDS are ONLY responsible for all structural repairs including structural portions of the roof, foundation, exterior walls, structural floors and ceiling supports. It shall be the Tenant's sole responsibility to keep and maintain the entire Leasehold Premises, and every part thereof, in good condition and repair at all times during the term of the Lease. Tenant shall keep and maintain the Leasehold Premises in a clean, sanitary and safe condition, at all times during the term of the Lease, in accordance with the laws of the Commonwealth of Pennsylvania and in accordance with all directions, rules and regulations of the health officer, fire marshal, building inspector, or other proper officials of the governmental agencies having jurisdiction, at the sole cost and expense of Tenant, and Tenant shall comply with all requirements of law, ordinance and otherwise, affecting said premises. If Tenant refuses or neglects to commence and to complete repairs promptly and adequately, LANDLORDS may, but shall not be required to do so, make and complete said repairs, and Tenant shill pay the cost thereof to LANDLORDS upon demand. At the time of the expiration of the tenancy herein, Tenant shall surrender the premises in good condition, reasonable wear and tear excepted. 7. Liability Insurance. Tenant shall, during the entire term of this Lease, keep in full force and effect a policy of public liability and property damage insurance with respect to the Leasehold Premises, in which the limits of public liability shall not be less than Five- Hundred Thousand Dollars ($500,000.00) for injury or death to one person in one accident, One Million Dollars ($1,000,000.00) for injury or death per occurrence and Five Hundred Thousand Dollars ($500,000.00) for property damage per occurrence. The policy shall name LANDLORDS, any other parties in interest designated by LANDLORDS, and Tenant as insured, and shall contain a clause that the insurer will not cancel or change the insurance without first giving LANDLORDS thirty (30) days prior Page 3 written notice. The insurance shall be with an insurance company approved by LANDLORDS, and a copy of the paid-up policy evidencing such insurance or a certificate of the insurer certifying the insurance of such policy shall be delivered to LANDLORDS prior to commencement of Tenant's Work and upon renewals not less than thirty (30) days prior to the expiration of such coverage. 8. Personal Property Insurance.- Tenant agrees to carry, at its sole expense, insurance against all risks of physical loss, insuring Tenant's fixtures, furnishings, equipment and iii other. ,. C..M-11 ,tn1 ?..??..? _PT ?.-.- 1 ...t .7 .,. L:- L_ T 7_ 11 ..L-1 .C...aaJ Cii ti u1 i Fl?y "vi 1elldllt lOl:4CeLL Vll or Wltlull U1G IT U11 lu Premises, in an amount equal to not less than one hundred percent (100%) of the actual replacement cost thereof and to furnish LANDLORDS with a certificate evidencing such coverage. 9. Tenant agrees that LANDLORDS shall not be liable to Tenant, and Tenant hereby releases LANDLORDS from liability for any personal injury or damage to or loss of personal property in or about the Leased Premises from any cause whatsoever, unless such damage or loss results solely from the gross negligence or willful misconduct of LANDLORDS. LANDLORDS shall not be liable to Tenant for: (i) any damage to property of Tenant or of others located on the Leased Premises, nor the loss of or damage to any property of Tenant or others by theft or otherwise, (ii) any such damage caused by other tenants or persons in the Leased Premises, occupants of adjacent property or the public, or caused by construction of any private, public or quasi-public work, (iii) any latent defect in the Leased Premises or in the building of which they form a part (iv) any consequential damage or lost profits, or (v) any damage or loss to the extent Tenant is compensated therefore by Tenant's insurance or to the extent Tenant could have obtained coverage against such damage or loss at regular rates under commonly available insurance coverage, whether or not any of the foregoing results from LANDLORDS' gross negligence or willful misconduct. All property of Tenant kept or stored on the leased premises shall be so kept or stored at the risk of Tenant only and Tenant shall hold LANDLORDS harmless from all claims arising out of damage to the same, including subrogation claims by Tenant's insurance carrier. 10. Tenant shall maintain insurance with respect to the Leased Premises against loss or damage by fire and all other casualties covered by the standard extended coverage endorsement of the full insurable value of the Improvements thereon, exclusive of foundations and excavations. Such insurance shall be procured from a responsible and financially sound insurance company or companies reasonably satisfactory to LANDLORDS, and, may, in whole or part, be carried as part of a blank policy or policies covering also other property insured by Tenant and shall contain a standard form co- insurance clause. Such insurance policy shall name LANDLORDS as an additional insured, and LANDLORDS' mortgagor as a secured interest. In the event of loss under any such policies, Tenant shall hold the insurance proceeds in trust for the reconstruction and repair of the Leased Premises in accordance with Paragraph 11 herein. 11. If the Leased Premises or any portion thereof shall be damaged or destroyed by fire or other insurable casualty, Tenant shall (except as provided below) promptly, at its sole rnCt and PxpPnsPYP,mnve. anvrP_.Clllting dPhric anti make Fll('h rPrn,air.- rPCtoration nr ------------ -- rebuilding to the extent that is necessary to provide the Tenant with equal utility, design Page 4 and construction to that which existed prior to such damage or destruction; and this Lease shall remain in full force and effect and rent shall not abate. If during the lost two years of the Term or the last two years of the Renewal Period the center on the Leased Premises is damaged or destroyed to the extent of not less than fifty (50) percent of then current replacement cost thereof, Tenant shall have the right and - option to terminate this Lease by giving LANDLORDZ notice of such election within thirty (30) days after such damage or destruction shall have taken place, and if such ..+: .. LL LL: T _ _ L..11 t .? .-.. b. .'e eu uns Lase shall Laminate as of the uatc T Gllallt V UUX6 UIU LC3Seu Premises, which date shall be no later than thirty (30) days after the giving of such notice. Upon the termination of the Lease by Tenant in accordance with the provisions of this Paragraph 11, all right, title and interest of Tenant in and to any insurance proceeds shall be promptly assigned by written instrument to LANDLORDS and any insurance proceeds, less and except insurance proceeds for Tenants personally, inventory or business interruption, shall be promptly paid to LANDLORDS. 12. Off-Set Statement. Tenant agrees within ten (10) days after request therefore by LANDLORDS to execute in recordable form and deliver to LANDLORDS a statement, in writing, certifying (a) that this Lease is in full force and effect, (b) the date of commencement of the term of this Lease, (c) that rent is paid currently without any offset or defense thereto, (d) the amount of rent, if any, paid in advance, (e) whether the Lease has been modified and, if so, identifying the modifications, and (f) that there be no uncured defaults by LANDLORDS or stating those claimed by Tenant, provided, that in fact such facts are accurate and ascertainable. 13. Attornment. in the event any proceedings are brought for the foreclosure of, or in the event of the conveyance by deed in lieu of foreclosure of, or in the event of exercise of the power of sale under any mortgage made by LANDLORDS covering the Leasehold Premises, Tenant hereby attorns to, and covenants and agrees to execute an instrument in writing reasonably satisfactory to the new owner whereby Tenant attorns to such successor in interest and recognizes such successor as the LANDLORDS under this Lease. 14. Subordination. Tenant agrees that this Lease shall, at the request of the LANDLORDS, be subordinate to any mortgages or deeds of trust that may hereafter be placed upon skid premises and to any and all advances to be made thereunder, and to the interest thereof., and all renewals, replacements and extensions thereof, provided the mortgagee or trustee named in said mortgages or trust deeds shall agree to recognized the Lease of Tenant in the event of foreclosure if Tenant is not in default. Tenant also agrees that any mortgagee or trustee may elect to have this Lease a prior lien to its mortgage or deed of trust, and in the event of such election, and upon notification by such mortgagee or trustee to Tenant to that effect, this Lease shall be deemed prior in lien to the said mortgage or deed of trust, whether this Lease is dated prior to or subsequent to the date of said mortgage or deed of trust. Tenant agrees that upon the request of LANDLORDS, any mortgagee or any trustee, it shall execute whatever instruments may be required to carry out the intent of this Section. 15. Assignment and Subletting. Tenant agrees not to assign or in any manner transfer this Page 5 Lease or any estate or interest therein by operation of law or otherwise without prior written consent of LANDLORDS, and not to sublet the leased premises or any part(s) thereof or allow anyone to come in with, through or under it without like consent. Consent by LANDLORDS to one or more assignments of this Lease or to one or more sublettings of the leased premises or the collection of rent by LANDLORDS from any assignee or sub-lessee shall not operate to exhaust LANDLORDS' rights under this Article. In the, event that Tenant, with or without the previous consent of LANDLORDS, does assign or in any manner transfer this Lease or any estate or interest therein, Tenant shall in. no way be released from any of its obligations under this Lease. 16. Waste or Vuisance. Tenant shall not commit or suffer to be committed any waste upon the Leasehold Premises, and Tenant shall not place a load upon any floor of the Leasehold premises that exceeds the floor load per square foot area which such floor is designed to carry. Tenant shall not use or permit the use of any medium that might constitute a nuisance. 17. Reconstruction of Damaged Premises. In the event the Leasehold Premises shall be partially or totally destroyed by fire or other casualty as to become partially or totally untenantable, then the damage to the Leasehold Premises shall be promptly repaid, unless LANDLORDS shall elect not to rebuild as hereinafter provided, and the fixed minimum rental and other charges shall be abated in proportion to the amount of the Leasehold Premises rendered untenantable. In no event shall LANDLORDS be required to repair or replace Tenant's trade fixtures, furnishings or personal property. If more than Twenty- five percent (25%) of the leased premises or of floor area of the building in which the leased premises are located shall be damaged or destroyed by fire or other casualty, then LANDLORDS may either elect that the Leasehold Premises be repaired or rebuilt or, at its sole option; terminate this Lease by giving written notice to Tenant of its election to so terminate, such notice to be given within ninety (90) days after the occurrence of such damage or destruction. 18. Total Condemnation of Leased Premises. If the whole of the Leasehold Premises shall be taken by any public authority under the power of eminent domain, then the term of this Lease shall cease as of the day possession shall be taken by such public authority and the rent shall be paid up to that day with a proportionate refund by LANDLORDS of such rent as may have been paid in advance for a period subsequent to the day of the taking. 19. Partial Condemnation. If less than the whole but more than Twenty-five percent (25%) of the Leasehold Premises shall be taken under eminent domain, LANDLORDS shall have the right either to terminate this Lease and declare the same null and void, or to restore the ren airing portion of the leased premises or the building to a complete architectural unit. In the event LANDLORDS elects to restore, all of the terms herein provided shall 'continue in effect, except the fixed annual rental shall be reduced in proportion to the amount of the leased premise taken. If Twenty-five percent (25%) or less of the Leasehold Premises shall be so taken, the lease term shall cease only as to the part so taken s of the day possession shall be taken by such public. authority, and Tenant shall pay rent up to that date, with appropriate Page 6 refund by LANDLORDS of such rent as may have been paid in advance for a period subsequent to the date of the taking, and thereafter the fixed minimum annual rental shall be reduced in?proportion to the amount of the leased premises taken. In such event, or in the event that-,Twenty-five percent (25%) or less of the Leasehold Premises shall be taken, LANDLORDS shall, at its expense, make all necessary repairs or alterations to the basic building; orig4ially installed by LANDLORDS, so as to constitute the remaining leased premises a complete architectural unit. ^A T A l.\TT\T l1Tl T\Cl7 LL lUl .1 fS .l T_,,g i?7, T>_ All ucut ?_'_'ta?._geS aVVardGJ _ JL17_411 tatClll?' 7____ LlII 1_ fil C .::. UnU 1 ME L LLUilar'yi S. viCL the power of eminent domain, whether for the whole or a part of the leased premises, shall belong to and be the property of LANDLORDS whether such damages shall be awarded as compensation for diminution in value to the leasehold or the fee of the premises, and Tenant shall have no claim against either LANDLORDS or the condemning authority with respect thereto; provided, however, that LANDLORDS shall not be entitled to the ward made for depreciation to, and cost of removal of Tenant's stock and fixtures. 21. Default. ALL RIGHTS AND REMEDIES OF LANDLORDS HEREIN ENUMERATED SHALL BE CUMULATIVE AND NONE SHALL EXCLUDE ANY OTHER RIGHTS OR REMEDIES ALLOWED BY LAW. TENANT COVENANTS AND AGREES THAT IF: 1. TENANT SHALL FAIL, NEGLECT OR REFUSE TO PAY ANY INSTALLMENT OF ALL RENT AT THE TIME AND IN THE AMOUNT AS HEREIN PROVIDED, OR TO PAY ANY OTHER MONIES AGREED BY IT TO BE PAID PROMPTLY WHEN AND AS THE SAME SHALL BECOME DUE AND PAYABLE UNDER THE TERMS HEREOF, AND IF ANY SUCH DEFAULT SHOULD CONTINUE FOR A PERIOD OF MORE THAN TEN (10) DAYS; 2. TENANT SHALL ABANDON OR VACATE THE LEASEHOLD PREMISES OR FAIL TO KEEP THE LEASED PREMISES CONTINUOUSLY AND UNINTERRUPTEDLY OPEN FOR BUSINESS EACH BUSINESS DAY OR SHALL FAIL, NEGLECT OR REFUSE TO KEEP AND PERFORM ANY OF THE OTHER COVENANTS, CONDITIONS, STIPULATIONS OR AGREEMENTS HEREIN CONTAINED, AND COVEENANTED AND AGREED TO BE KEPT AND PERFORMED BY IT, AND IN THE EVENT ANY SUCH DEFAULT SHALL CONTINUE FOR A PERIOD OF MORE THAN TEN (10) DAYS AFTER NOTICE THEREOF GIVEN IN WRITING TO TENANT BY LANDLORDS PROVIDED HOWEVER THAT IF THE CAUSE FOR GIVING SUCH NOTICE INVOLVES THE MAKING OF REPAIRS OR OTHER MATTERS REASONABLE REQUIRING A LONGER PERIOD OF TIME THAT THE PERIOD OF SUCH NOTICE. TENANT SHALL BE DEEMED TO HAVE COMPLIED WITH SUCH NOTICE SO LONG AS IT HAS COMMENCED TO COMPLY WITH SAID NOTICE WITHIN THE PERIOD SET FORTH IN THE NOTICE AND IS DILIGENTLY PROSECUTING COMPLIANCE OF SAID NOTICE OR HAS TAKEN PROPER STEPS OR PROCEEDING UNDER THE CIRCUMSTANCES TO PREVENT THE SEIZURE, T?FCTp T T( TT(1T.T AT TEP A Trn)r nR nT7-TFI? I1?TTER FER FNr'F WTTN C A Tn 11LU 11\\1?11V1\, 1 LEASED PREMISES BY REASON ON NON-COMPLIANCE WITH THE Page 7 REQUIREMENTS OF ANY LAW OR ORDINANCE OR WITH THE RULES, REGULAIONS, OR DIRECTIONS OF ANY GOVERNMENTAL AUTHORITY AS THE CASE MAY BE; THEN THE TENANT DOES HEREBY AUTHORIZE AND FULLY EMPOWER SAID LANDLORDS OR LANDLORDS' AGENT TO CANCEL OR ANNUL THIS LEASE AT ONCE AND TO RE-ENTER AND TAKE P.O,,SSESSION OF SAID PREMISES IMMEDIATELY, AND BY FORCE IF NECESSARY, WITHOUT ANY PREVIOUS NOTICE OF INTENTION TO RE- ENTER AND REMOVE ALL PERSONS AND THEIR PROPERTY THEREFROM, AND TO uSE SUCH FORCE AND ASSISTS IN EFFECTING AND PERFECTING J SUCH REMOVAL OF SAID TENANT AS MAY BE NECESSARY AND ADVISABLE''.TO RECOVER AT ONCE FIRST AND EXCLUSIVE POSSESSION OF ALL SAID LEASED PREMISES WHETHER IN POSSESSION OF SAID TENANT OR OF THIRD PERSONS OR OTHERWISE, WITHOUT BEING DEEMED GUILTY OF ANY MANNER OF TRESPASS AND WITHOUT PREJUDICE TO ANY REMEDIES WITH MIGHT OTHERWISE BE USED BY LANDLORDS, IN WHICH EVENT THIS LEASE SHALL TERMINATE AND TENANT SHALL INDEMNIFY THE LANDLORDS AGAINST ALL UNAVOIDABLE LOSS OF RENT WHICH LANDLORDS MAY INCUR BY REASON OF SUCH TERMINATION DURING THE RESIDUE OF THE TERM HEREIN SPECIFIED. THE LANDLORDS MAY, HOWEVER, AT ITS OPTION, AT ANY TIME AFTER SUCH DEFAULT OR VIOLATION OF CONDITION OR COVENANT, RE-ENTER AND TAKE POSSESSION OF SAID PREMISES WITHOUT SUCH RE-ENTRY WORKING A.. FORFEITURE OF THE RENTS TO BE PAID AND THE A COVENANTS, AGREEMENTS AND CONDITIONS TO BE KEPT AND PERFORMED BY TENANT FOR THE FULL TERM OF THIS LEASE. IN SUCH EVENT LANDLORDS SHALL HAVE THE RIGHT, BUT NOT THE OBLIGATION, TO DIVIDE OR SUBDIVIDE THE LEASEHOLD PREMISES IN ANY MANNER LANDLORDS MAY DETERMINE AND TO LEASE OR LET THE SAME OR PORTIONS HEREOF FOR SUCH PERIOD OF TIME AND AT SUCH RENTALS AND FOR SUCH USE AND UPON SUCH COVENANTS AND CONDITIONS AS LANDLORDS MAY ELECT, APPLYING THE NET RENTALS FROM SUCH LETTING FIRST TO THE PAYMENT OF LANDLORDS' EXPENSES INCURRED IS DISPOSSESSING TENANT AND THE COST AND EXPENSE OF MAKING SUCH IMPROVEMENTS IN THE LEASEHOLD PREMISES AS MAY BE NECESSARY IN ORDER TO ENABLE LANDLOR TO RE-LET THE SAME, AND TO THE PAYMENT OF BROKERAGE COMMISSIONS OR OTHER NECESSARY EXPENSES OF LANDLORDS IN CONNECTION WITH SUCH RE-LETTING. THE BALANCE, IF ANY, SHALL BE APPLIED BY LESSOR FROM TIME TO TIME ON ACCOUNT OF THE PAYMENTS DUE OR PAABLE BY TENANT HEREUNDER, WITH THE RIGHT RESERVED TO LANDLORDS TO BRING SUCH ACTION OR PROCEEDINGS FOR THE RECOVERY OF ANY DEFICITS REMAINING UNPAID AS LANDLORDS MAY DEEM FAVORABLE FROM TIME TO TIME, WITHOUT BEING OBLIGATED TO AWAIT THE END OF THE TERM HEREOF FOR THE FINAL DETERMINATION OF TENANTS ACCOUNT. ANY BALANCE REMAINING HOWEVER, AFTER FULL PAYMENT AND LIQUIDATION OF LANDLORDS' ACCOUNT AS AFORESAID SHALL BE PAID TO TENANT WITH Page 8 THE RIGHT RESERVED TO LANDLORDS AT ANY TIME TO GIVE NOTICE IN WRITING TO TENANT OF LANDLORDS' ELECTION TO CANCEL AND TERMINATE THIS LEASE AND UON GIVING OF SUCH NOTICE AND THE SIMULTANEOUS PAYMENTS BY LANDLORDS TO TENANT OF ANY CREDIT BALANCE IN TENANT'S FAVOR THAT MAY AT THE TIME BE OWING TO TENANT SHALL CONTITUTE A FINAL AND EFFECTIN?E.CANCELLATION AND TERMINATION OF THIS LEASE AND THE OBLIGATIONS HEREUNDER ON THE PART OF EITHER PARTY TO THE OTHER. LANDLORDS MAY, AT ITS OPTION, WHILE SUCH DEFAULT OR VIOLATION OF COVENANT OR CONDITION CONTINUES, AND AFTER TEN (10) DAYS NOTICE OF ITS INTENTION SO TO DO, DECLARE ALL THE RENT RESERVED FOR THE FULL TERM OF THIS LEASE REMAINING UNPAID DUE AND PAYABLE AT ONCE; AND TENANT DOES HEREBY EMPOWER ANY ATTORNEY OF ANY COURT OF RECORD IN THE STATE OF PENNSYLVANIA OR ELSEWHERE TO APPEAR FOR IT AN WANE THE ISSUANCE AND SERVICE OF PROCESS AND CONFESS JUDGMENT AGAINST IT FOR THE WHOLE OR ANY PART OF SAID RENT AND THEREAFTER TO RELEASE ALL ERRORS AND WARRANT ALL RIGHTS OF APPEAL AND STAY OF EXECUTIONt THE INITIAL EXERCISE OR USE OF THIS WARRANT OF ATTORNEY SHALL NOT EXHAUST THE SAME, BUT THE SAME MAY BE USED AND EXERC?,SED WITHOUT LIMITATION AS OFTEN AS NECESSITYFOR THE USE OF THE SAME ARISE. THE EXERCISE OR USE OF THIS WARRANT OF ATTORNEY SHALL NOT PREVENT LANDLORDS FROM SUBSEQUENTLY TERMINATING THIS LEASE, BY GIVING NOTICE TO TENANT OF ITS ELECTION SO TO DO AND UPON ITS TENDER TO TENANT OF A SUM EQUAL TO THE AMOUNT, IF ANY, PAID BY THE TENANT FOR RENTS ACCRUING AFTER THE DATE OF SUCH TERMINATION. IN ADDITION TO THE OTHER RIGHTS GRANTE TO THE LANDLORDS HEREUNDER, LANDLORDS MAY, AT ITS OPTION, WHILE SUCH DEFAULT OR VIOLATIONS OF CONVENANTS OR CONDITION CONTINUE(S), AND AFTER TEN (10) DAYS' NOTICE OF ITS INTENTIONS TO DO SO, CONFESS JUDGMENT FOR POSSESSION OF THE LEASED PREMISE AND TENANT DOES HEREBY EMPOWER ANY ATTORNEY OF ANY COURT TO RECORD IN THE COMMONWkALTH OF PENNSYLVANIA OR ELSEWHERE TO APPEAR FOR IT AND WANE`THE ISSUANCE AND SERVICE OF PROCESS AND CONFESS A JUDGMENT IN EJECTMENT. ALSO IN ADDITION TO THE OTHER RIGHTS GRANTED TO LANDLORDS UNDER THIS LEASE, TENANT AGREES THAT IN THE EVENT THAT THE AMOUNTS DUE LANDLORDS UNDER THIS LEASE ARE COLLECTED BY LAW OR THROUGH AN ATTORNEY AT LAW, AND JUDGMENT IS ENTERED IN FAVOR OF LANDLORDS AGAINST TENANT, WHETHER BY CONFESSION OR OTHERWISE, THEN TENANT AGREES TO PAY ALL COSTS OF COLLECTION, INCLUDING ATTORNEY'S FEES IN THE AMOUNT OF TEN PERCENT (10%) OF 1TT' M\' ^T -v'E T1U'INMIlED l-)OLL T • RS !(P 00. h V/1\ T'rili TlEVER T i1r, RUM.) 1S!-1V1ElV 1 V1L Fl 1 V C ri -U 'IN LJ1CDiJ 1J V L-?iC ?? J? V V V ), WTrill.ri V L1C 13' Page 9 GREATER. 22. Right of Entry. LANDLORDS or LANDLORDS' agent shall have the right to enter the Leasehold Premises at all reasonable times to examine the same, and to make such repairs, alterations, improvements or additions as LANDLORDS may deem necessary or desirable, and LANDLORDS shall be allowed to take all material into and upon said premises that may be required therefore witE6 u*t the same constituting an eviction of Tenant in whole or in part, and the rent reserved shall in now wise abate while said rari?Lir?, ?Ttoro£i nrY? lli Mmlnrne»Z ori4n nr additiVll are V °re Lj a t, lu a .ter 1r, LLI:Ll ?:1 :.ill:., lii J i'L'?LLiiW Vi LV111 CJ 111 CLLLN, V?' 11.+O.JVll V.L l LVJJ Vl. interruption of business of Tenant, or otherwise. 23. Loss and Damage to Tenant's Property. The LANDLORDS shall not be responsible or liable to the Tenant for any loss or damage that may be occasioned by or through the acts or omissions of persons occupying adjoining premises or any part of the premises adjacent to the Leasehold Premises or any part, or for any loss or damages resulting to the Tenant or its property from bursting, stoppage or leaking of water, gas, sewer or steam pipes or for any damage or loss of property within the Leasehold Premises from any cause whatsoever. 24. Notice by Tenant. Tenant shall give immediate notice to LANDLORDS in case of fire or accidents in the leased premises or in the building of which the premises are a part or of defects therein or in any fixtures or equipment. 25. Holding Over. Any holding over after the expiration of the term hereof with the consent of theLANDLORDS, shall be construed to be a tenancy from month to month (at twice the nr onthly minimum rental herein specified). 26. Successors;. All rights and liabilities herein given to, or imposed upon, the respective parties hereto shall extend to and bind the several respective heirs, executors, administrators, successors, and assigns of the said parties; and if there shall be more than one Tenant, they shall be bound jointly and severally by the terms, covenants and agreements herein. No rights, however, shall inure to the benefit of any assignee of Tenant unless the assignment to such assignee has been approved by LANDLORDS in writing as provided in Paragraph 15 herein. 27. LANDLORDS' Covenant. Upon payment by the Tenant of the rents herein provided, and upon the observance and performance of all the covenants, terms and conditions on Tenant's part to be observed and performed, Tenant shall peacefully and quietly hold and enjoy the leased premises for the term hereby demised without hindrance or interruption by LANDLORDS or any other person or persons lawfully or equitably claiming by, through or under the LANDLORDS, subject nevertheless to the terms and conditions of this Lease, and any mortgages to which this Lease is subordinate. 28. Waiver. Obe or more waivers of any covenant or condition by LANDLORDS shall not be construed as a waiver of a subsequent breach of the same covenant or condition, and the consent or approval by LANDLORDS to or of any act by Tenant requiring LANDLORDS' consent or approval shall not be deemed to render unnecessary L A't,TT1T nT?nQ' l n-c,L.-f n, ?-proV I to ..ff any bsequen" ' •iar LL + 1- Tor,.,.,+ 1.7„ 1,LLL.1 V./lJ VV11J- Vl -1 '. Y- LV or Vl ilY JU VJN4- lJ1LL J11111141 VL V.Y l V11CLlll. 1YV Page 10 breach of a covenant or condition of this Lease shall be deemed to have been waived by LANDLORDS, unless such waiver is in writing and signed by LANDLORDS. 29. Notices. Any notice, demand, request or other instrument which may be or is required to be*given under this Lease shall be sent by United States certified mail, return receipt requested, postage prepaid and shall be addressed (a) if to LANDLORDS, at the R: address first above stater, or at such other address as LANDLORDS shall designate-by written notice, (b) if to Tenant, to the leased premises or at such other address as Tenant ..1..,11 av..: LI :.: 11= a t ? v L ii ry v,•" iiLGLL ii Lia,v t tai InOt,i a' a ri d s ll L.. d 11 L e li rr Ct-1 v ,.. G L1 a.... .. ...4 ....LL 4L .. S PC)st 1 JliG. Jr l VllGliL1pVn UGJ.RIJ1L W1L11 L11G U. F Lai Department. 30. Captions and Section Numbers. The captions, section numbers, and article numbers, appearing in this Lease are inserted only as a matter of convenience and in no way define, limit, construe or describe the scope or intent of such sections of this Lease nor in any way affect this Lease. 31. Recording. Tenant shall not record this Lease without the written consent of LANDLORD; however, upon the request of either party hereto, the other party shall join in the execution of a memorandum or so-called "short form" of this Lease for the purpose of recordation. Said memorandum or short form of this Lease shall describe the parties, the Lei ehold Premises, the term of this Lease, and special provisions, and shall incorporate this Lease by reference. 32. Transfer of LANDLORDS' Interest. In the event of any transfer or transfers of LANDLORDS' interest in the Leasehold Premises, the transferor shall be automatically relieved of any and, all obligations on the part of LANDLORDS accruing from and after the date of such transfer, including, but not limited to, any obligation to Tenant with respect to the security deposit referred to in Paragraph 3 of this Lease upon assignment of the same to the transferee, provided that the interest of the transferor, as LANDLORDS, in any funds then in the hands of LANDLORDS in which Tenant has an interest shall be turned over, subject to such interest, to the ten transferee. No holder of a mortgage to which this Lease is or may be subordinate shall be responsible in connection with the security deposited hereunder, unless such mortgagee or hold of such deed of trust shall have actually received the security deposited hereunder. 33. Accord and Satisfaction. No payment by Tenant or receipt by LANDLORDS of a lessor amount_?han the monthly rent herein stipulated shall be deemed to be other than on account of the'earliest stipulated rent, nor shall any endorsement or statement of any check or any letter accompanying any check or any payment as rent be deemed an accord and satisfaction, and LANDLORDS shall accept such check or payment without prejudice to LANDLORDS' right to cover the balance of such rent or pursue any other remedy in this Lease provided. 34. Laws of the Commonwealth of Pennsylvania. This Lease shall be governed by and construed in accordance with the laws of the Commonwealth of Pennsylvania. If any provision of this Lease or the application thereof to any person or circumstances shall, to any extent, be invalid or unenforceable, the remainder of this Lease shall not be affected thereby and each provision of the Lease shall be valid and enforceable to the fullest Page 11 extent permitted by law. 3 5. Entire Agreement. This Lease and the exhibits, if any, attached hereto and forming a part thereof, set forth all the covenants, promises, agreements, conditions and understandings between LANDLORDS and Tenant concerning the leased premises and their are.Rpt covenants, promises, agreements, conditions or understandings, either oral or written, between them other than herein'set-forth. No alterations, amendment, change or addition to this Lease shall be binding upon LANDLORDS or Tenant unless reduced to vv •iuu? ;...u ?f?ued b j% e$cli palCy. i 36. Taxes. "During the term of this Lease, Tenant shall be responsible for and shall pay before delinquency all municipal, county or state taxes of any kind, but not limited to, real estate taxes. 37. New Taxes. Should any governmental taxing authority acting under any present or future law, ordinance or regulation, levy, assess or impose a tax, excise, assessment and/or any business and/or occupation taxes (other than income or franchise tax) upon or against the rentals payable by Tenant to LANDLORDS, either by way of substitution or in addition to any existing tax on land and buildings or otherwise, Tenant shall be responsible for and shall pay such tax, excise, assessment, and any business and occupation taxes levied directly against the Tenant, or shall reimburse LANDLORDS for the amount thereof, as the case may be, as additional rent, on or before the date that any fine, penalty or interest would be added thereto for non-payment. Tenant shall also pay its pro-rata share of any tax or charge levied in lieu of Real Estate taxes. 38. Heirs and Successors. This agreement shall be binding on and shall inure to the benefit of the parties hereto, their respective heirs, successors, personal representatives and assigns. 39. Counterparts. This Lease may be signed in one or more counterparts, and all such counterparts shall form but one integrated agreement. This Lease may be executed by facsimile signatures. 40. Right of First Refusal: LANDLORDS agrees that LANDLORDS shall not, during the Term or any Renewal Period, sell or contract to sell the Leased Premises to any party without first offering to sell the Leased Premises to Tenant for a cash price equal to the price ultimately paid by such purchasing party. LANDLORDS shall make such offer by sending written notice thereof to Tenant. If accepted via written notice within fifteen (15) days, then Tenant has forty-five (45) days to settle. Failure to settle by that time releases LANDLORDS from any further or future obligation under this Paragraph 40. If Tenant shall not thereafter send written notice to LANDLORDS accepting LANDLORD' offer within fifteen (15) days following Tenant's receipt of LANDLORDS offer, then LANDLORDS shall have one hundred eighty (180) days from the expiration of such fifteen (15) day period to enter into a contract to sell the Leased Premises to any party, and may thereafter sell the Leased Premises pursuant to such contract, free of the restrictions imposed hereby. If LANDLORDS shall not enter into a THE REIiALN-ER OF PAGES IS 11?1LT.1( 11V1?ALL DLrurii Page 12 contract to seh the Leased Premises within such one hundred eighty (180) day period, the Leased Premises shall again become subject to the provisions of this Paragraph 40. i IN WITNESS WHEREOF, the parties hereto have each caused this Lease to be executed as of the day and year first above written. WTTNFCC T _ANr.ORn.c: WITNESS TENANT: BRANDON C. POWERS v. - A4ac Lc?- Page 13 V1V Y 111\1\1 LL]1\Vl\L Addendum to Triple Net lease LANDLORD(S): Guiseppe Barone and Giovanni Barone ADDRESS: 1400 Old Reliance Road, Middletown,-County of Dauphin, PA, 17057 TENET: Brandon Powers ADDRESS: 383N _ 26`" Street, Camp Hill, County of Cumberland, PA, 17011 All terms and conditions from "Triple Net Lease" between above parties for this property are herein incorporated except where they conflict with following provision. Where there is a conflict between this "Addendum" and "Triple Net Lease", terms herein shall rule. 1) TERM: The term shall be 5 1/2 years, commencing on 1 July 2008 and ending on 31 December 2012. 2) RENEWAL OPTION: Provided the Tenant is not in default at the time it exercises its option to renew, Tenant shall have the option to renew this 1 lease for one (1) additional term of five (5) years in succession immediately following the expiration of the first term. All other terms of this section apply from original lease. 3) RENT: Minimum monthly rental payments for years 2013 through 2017 shall come into effect only if lease is renewed through the above mentioned renewal option. 4) HOLDING OVER: Any holding over after expiration of the term hereof with the consent of the LANDLORD(S), shall be construed to be tenancy from month to month at the last minimum payment stipulated in the LEASE. If holdover lasts more that 120 days, LANDLORD(S) shall have the right to increase the minimum monthly rental payment to one and one half (1 '/2) of minimum monthly rental payment herein specified. THE REMAINDER OF THIS PAGE IS INTENTIONALLY BLANK IN WITNESS WHEREOF, the parties hereto have each caused this ADDENDUM to be executed as of the day and year first above written. WITNESS WITNESS ?z LANDLORD(S): G PPE BARONS i IOVANNI BARONE TENANT: BRANDON C. POWERS Guiseppe Barone 1400 Old Reliance Road Middletown, PA 17057 (717) 514-5650 (cell) September 11, 2009 VIA CERTIFIED 9AIL Brandon C. Powers ch-1 BFr0th er'c D T' •l C.l C V i : ... C 700 Valley Road Enola, PA 17025 RE: 700 Valley Road Enola, PA Dear Brandon: I have not yet received your rent payment for the month of September, 2009 relative to the above-referenced premise as of the date of this correspondence. Likewise, I did not receive the last eleven (11) months' rent until after the 5th of each month. In accordance with the terms of the Lease, I request that you immediately forward the amount of $3,150.00, which sum reflects this month's rent in the amount of $3,000.00, in addition to the applicable late fee for this month in the amount of $150.00. In addition, I indicated to you in my letter in August, 2009, that you have not yet paid the 2009 property taxes. According to the terms of the lease, you are responsible to pay all of the real and personal property taxes levied or assessed against said premise. I request that you immediately provide me with proof of payment of taxes for 2009. You continue to be in default of the Lease as set forth above. I expect full satisfaction of the above within ten (10) days of receipt of this correspondence. Otherwise, I will promptly move forward to take possession of the premise, as well as seek to collect judgment and pursue any and all legal remedies available, including attorney fees and costs. Sincerely, GUISEPPE BARONE EXHIBIT "C" t? D' • r r r f`- rO ' ` 01 F -1 .3 M ,, Postage $•_1,4t (1f1?= ? _ wt Certified Fee ?..IJ Postmark Retum Receipt Fee r3' (Endorsement Raquired) w)1 Hoop, M Restricted baWety' Fee # ti llil S ?' Y? ?? 1-3 (Endorsement Required) r l JC ?v N Total Postage Fees if?. u?tieee _ M (ti orPO Box No. x VERIFICATION We verify that the statements made in the foregoing Complaint in Ejectment are true and correct. We understand that false statements herein are made subject to the penalties of 18 Pa. C.S. Section 4904 relating to unworn falsification to authorities. y' - 2a 2V I' Date Date nrrfr•e n? R n u nr. GUISEPPE BARONE and GIOVANNI IN THE COURT OF COMMON PLEAS BARONE, CUMBERLAND COUNTY, PENNSYLVANIA PLAINTIFFS/RESPONDENTS/RESPON : DENTS : NO. 2009-6533 CIVIL TERM VS. BRANDON C. POWERS, DEFENDANT/PETITIONER _YJ -- w M c rT -v ANSWER TO DEFENDANT'S PETITION TO STRIKE, rl OR ALTERNATIVELY OPEN CONFESSED JUDGMENT ANDS-- -' C-4 REQUEST FOR STAY OF EXECUTION -7 D 7 a AND NOW, come the Plaintiffs/Respondents, Guiseppe Barone and Giovanni Baron, by' and through their counsel, Kline Law Office, and files this Answer to Defendant's Petition to Strike, or Alternatively Open Confessed Judgment and Request for Stay of Execution, as follows: 1. Admitted. However, as of the date of the filing of the Praecipe for Writ of Execution, Plaintiffs/Respondents were not aware that Defendant/Petitioner had moved to the address stated. 2. Admitted. 3. Admitted. 4. Admitted. 5. Admitted. 6. Admitted in part; denied in part. It is admitted that judgment for possession was confessed by Plaintiffs/Respondents against Defendant/Petitioner on September 29, 2009, by the filing of a Complaint in Ejectment. Said Complaint was based upon Defendant/Petitioner's consistent practice of making late payments of rent, failure and/or refusal to pay the late fees required by the lease resulting in an accumulation of late fees, Defendant/Petitioner's failure as of the 291" of the month to pay the rent for that month of September, 2009, and failure to pay the 2009 real estate taxes which, at that time, were past due in the penalty phase. 7. Admitted in part; denied in part. It is admitted that the letter of October 9, 2009, set forth the Plaintiff/Respondents' terms and conditions for forbearance on executing on the September 2009 judgment. The letter speaks for itself and was in response to Attorney Gothie's request on behalf of his client that his client have the opportunity to remain in the premises in spite of his default. By way of further answer, the letter also specifically states that "nothing herein shall preclude my client from enforcing the judgment by confession for possession of real property upon the occurrence of any additional default on the part of your client", which term was understood by both Plaintiffs/Respondents' counsel and Attorney Gothie as being indefinite in term. 8. Denied. Byway of further answer, Defendant/Petitioner paid $6,350.00 of the $6,359.42 that was requested on or about October 17, 2009. The cancelled checks attached to Defendant/Petitioner's Petition as Exhibit "C" are the late November rent check and a check for the 2009-10 school tax. A decision was made by Plaintiffs/Respondents at that time not to make an issue of the additional $9.42 that the Defendant/Petitioner had failed to pay. 9. Admitted, subject to the Plaintiffs/Respondents' decision not to make issue of the $9.42 that the Defendant/Petitioner had failed to pay. 10. Denied as stated by the Defendant/Petitioner. The letter attached to the Defendant/Petitioner's Petition as Exhibit "D" speaks for itself. By way of further answer, however, the letter was a follow-up to a telephone conversation initiated by Attorney Gothie and the additional conditions were negotiated between Attorney Kline and Attorney Gothie as a result of Attorney Gothie's concern regarding the indefinite nature of the terms set forth in the October 9, 2009, letter. In response to Defendant/Petitioner's counsel's footnote, the condition concerning Defendant/Petitioner's agreement that he would not challenge the entry of confession of judgment for possession was agreed upon by Attorney Gothie and was borrowed directly from forbearance agreements regularly used by lending institutions and credit unions in similar situations. 11. Admitted. The letter attached to Defendant/Petitioner's Petition as Exhibit "D" speaks for itself By way of further answer, however, as the letter was dated October 22, 2009, it would be an impossibility for the Defendant/Petitioner to meet the conditions by April 1, 2009, and, therefore such date is obviously a typographical area and was intended to be and was, in fact, understood by the parties to be April 1, 2010. 12. Denied. Defendant/Petitioner failed to comply with each and every one of the conditions set forth in the October 22, 2009, letter in that: (1) not one single rent payment was received on or before the 1St of the month; (2) instead of making the school tax payment directly to Deborah A. Lupold, Treasurer for East Pennsboro Township, on or before October 31, 2009, which would have avoided the imposition of further penalty, Defendant/Petitioner instead made payment by check dated November 2, 2009, and delivered to Plaintiffs/Respondents on November 4, 2009, a check in the amount of $3,053.45, the tax due for the face period (as a result of the late payment, Plaintiffs/Respondents paid the tax on behalf of the Defendant/Petitioner at the penalty amount of $3,358.80); and (3) Defendant/Petitioner failed to remain in compliance with each and every other term of the Lease Agreement in that during the proposed forbearance period, Defendant/Petitioner failed to make payments to East Pennsboro Township for the trash service to the property as set forth in Exhibit "A" of this Answer, which is a printout from East Pennsboro Township as to the outstanding sewer rents due on this property and indicates that the last payment was received by East Pennsboro Township on January 5, 2009. 13. Denied as stated. As stated in the Plaintiffs/Respondents' response to Paragraph 12 above, Defendant/Petitioner was not entitled to satisfaction of the judgment for possession. Furthermore, neither Defendant/Petitioner nor Defendant/Petitioner's counsel ever requested satisfaction of said judgment or inquired as to the status of such satisfaction. 14. Denied. On the contrary, Defendant/Petitioner has consistently failed to follow the terms of the Lease Agreement as follows: A. Each and every one of his rent payments for the period therein stated has been late in that not one single payment has been received by the first of the month; B. A number of his checks have not been honored by the bank for insufficient funds (see Exhibit "B", representing an email and printout from Integrity Bank); C. He has failed to and/or refused to make any payments of any of the late fees that have accrued (Exhibit "C-1 through C-4" represents an incomplete sampling of correspondence sent to Defendant/Petitioner during the period in question in regard to his failure to pay to timely rent and failure to pay late payment fees); D. He failed to pay the 2010 county/township taxes requiring Plaintiffs/Respondents to make payment to the Cumberland County Tax Claim Bureau in the amount of $1,036.92 (a copy of the receipt from the Tax Claim Bureau is attached as Exhibit "D"; E. He has failed to make any payments to East Pennsboro Township in regard to the outstanding trash invoices, resulting in a balance of July 27, 2011, in the amount of $3,708.84 (Exhibit "A"); F. He has failed to make any sewer payments to East Pennsboro Township for a period in excess of one year, resulting in an outstanding balance in the amount of $1,213.05 as of July 27, 2011 (Exhibit "E") G. He has filed to consistently maintain the required insurance as evidenced by the cancellation notice effective August 29, 2010 (Exhibit "F") 15. Denied as stated. It is believed that Defendant/Petitioner has made numerous attempts to sell his pizzeria business throughout the term of the Lease. At no time did Plaintiffs/Respondents agree to or acknowledge approval of any of Defendant/Petitioner's proposed sale transactions. 16. Admitted. Upon information and belief, the terms of Exhibit "E" speak for themselves. 17. Admitted. Upon information and belief, the terms of Exhibit "F" speak for themselves. By way of further answer, at no time did Plaintiffs/Respondents approve of said sublease arrangement. Furthermore, such sublease was in direct violation of Paragraph 15 of the Lease Agreement. 18. Admitted in part; denied in part. Admitted that at some point Defendant/Petitioner did deliver copies of the Asset Purchase Agreement and Agreement of Sublease to Plaintiffs/Respondents, although the specific date is neither admitted nor denied. It is specifically denied that Plaintiffs/Respondents were under any obligation whatsoever to consent to such sublease inasmuch as the Lease Agreement specifically prohibits such sublease. By way of further answer, Plaintiffs/Respondents were certainly under no obligation to agree to a sublease of the Lease Agreement when the underlying lease was in default. 19. Admitted in part, denied as stated. It is admitted that a late rent payment for the month of May was made on or about May 8, 2011, without the required late fee. 20. Admitted. Plaintiffs/Respondents were under no obligation to accept the rental payment from someone other than the Defendant/Petitioner, his tenant. 21. Denied as stated. Plaintiffs/Respondents have no knowledge whatsoever of Defendant/Petitioner's interactions with his purported buyers, or of the issuance of a check for the June, 2011, rent. 22. Admitted in part; denied as stated. It is admitted that Plaintiff/Respondent Guiseppe Barone reminded Defendant/Petitioner of the requirement for a cashier's check, of which the Defendant/Petitioner was notified by letter dated April 12, 2011, as a result of numerous checks that had not been honored due to insufficient funds. A copy of said letter is attached hereto as Exhibit "C-4". 23. Admitted. However, it is also noted that the late rent payment did not include the late fee as required by the Lease Agreement. 24. Admitted. Plaintiffs/Respondents were under no obligation to accept the rental payment from someone other than Defendant/Petitioner, his tenant, and at this stage, Plaintiffs/Respondents were aware of the impending execution of the Writ of Possession by the Cumberland County Sheriff's Department. 25. Plaintiffs/Respondents are without any specific knowledge as to the allegations of this paragraph and, therefore, they are denied. Furthermore, the allegations in this paragraph are irrelevant to the disposition of Defendant/Petitioner's Petition. 26. Plaintiffs/Respondents are without any specific knowledge as to the allegations of this paragraph and, therefore, they are denied. Furthermore, the allegations in this paragraph are irrelevant to the disposition of Defendant/Petitioner's Petition. 27. Plaintiffs/Respondents are without any specific knowledge as to the allegations of this paragraph and, therefore, they are denied. Furthermore, the allegations in this paragraph are irrelevant to the disposition of Defendant/Petitioner's Petition. 1. PETITION TO STRIKE CONFESSED JUDGMENT 28. No. response required. 29. Admitted in part; denied in part. Admitted that a Praecipe for Writ of Execution was, in fact, filed. As set forth in Paragraph 12 of this Answer, it is specifically denied that the Defendant/Petitioner was entitled to have the underlying judgment satisfied and discontinued. 30. Denied. On the contrary, Notice under Rule 2973.2 was attached and served with the original Complaint and receipt thereof is acknowledged by Defendant/Petitioner by inclusion of said notice as the first page of Defendant/Petitioner's Exhibit "K" to his Petition. Furthermore, pursuant to Rule 2973.4, no additional notice was required to be provided to Defendant/Petitioner. 31. Admitted. 32. Denied. On the contrary, inasmuch as the Praecipe for Writ of Possession upon Confessed Judgment was served upon Defendant/Petitioner and his counsel on June 17, 2011, this Petition to Strike is not timely filed inasmuch as that it was not filed on or before July 18, 2011. 33. Denied. By way of further answer, Plaintiffs/Respondents respond as follows: A. As previously stated in Paragraph 12 of this Answer, Defendant/Petitioner was not entitled to the satisfaction of the underlying judgment; B. Denied. As of September 29, 2009, the 2009 county/township taxes were in the penalty phase and, therefore, were past due. Furthermore, there were more than sufficient other instances of default on the part of Defendant/Petitioner as set forth in said Complaint. C. Denied as stated. Defendant/Petitioner misstates the language of 42 Pa.C.S. §2737.1, a true and correct copy of which from Lexus is attached hereto as Exhibit "G". By way of further answer, Subsection (b) of that Section states "A judgment shall not be stricken or open because of a creditor's failure to provide a correctly identified debtor with instructions pursuant to this section regarding procedures to follow to strike a judgment or regarding any rights available to an incorrectly identified debtor." At no time has Defendant/Petitioner alleged that he is not the Brandon C. Powers that is subject to the Lease Agreement and the Plaintiffs/Respondents' efforts to enforce that Lease Agreement. D. Denied. On the contrary, Paragraph 14 of this Answer sets forth the Defendant/Petitioner's various instances of default as of the date of the Praecipe for Writ of Possession. E. Denied. Inasmuch as the execution was upon a valid judgment, the allegation of this paragraph is irrelevant and, therefore, denied. F. Denied. On the contrary, the Lease Agreement specifically permits the landlord to confess judgment for possession. G. Denied. Plaintiffs/Respondents were well within their right to file a writ of possession at any time after 30 days had elapsed following the entry of the judgment in possession. H. Denied. It is specifically denied that there is any defect or irregularity on the record in this matter. 34. Denied. On the contrary, Plaintiffs/Respondents have been prejudiced by Defendant/Petitioner's consistent failure to abide by the terms of the Lease and the terms of the Forbearance Agreement between the parties. WHEREFORE, Plaintiffs/Respondents Guiseppe Barone and Giovanni Barone respectfully request this Honorable Court to deny the Petition to Strike Confessed Judgment and further award Plaintiffs/Respondents all such relief as is proper and just, including, but not limited to, counsel fees and costs incurred in defending this Petition. II. IN THE ALTERNATIVE, PETITION TO OPEN CONFESSED JUDGMENT 35. No response required. 36. Denied. By way of further answer, Plaintiffs/Respondents respond as follows: A. Denied. As of September 29, 2009, the 2009 county/township taxes were in the penalty phase and, therefore, were past due. Furthermore, there were more than sufficient other instances of default on the part of Defendant/Petitioner as set forth in said Complaint. B. Denied as stated. Defendant/Petitioner misstates the language of 42 Pa.C.S. §2737.1, a true and correct copy of which from Lexus is attached hereto as Exhibit "G". By way of further answer, Subsection (b) of that Section states "A judgment shall not be stricken or open because of a creditor's failure to provide a correctly identified debtor with instructions pursuant to this section regarding procedures to follow to strike a judgment or regarding any rights available to an incorrectly identified debtor." At no time has Defendant/Petitioner alleged that he is not the Brandon C. Powers that is subject to the Lease Agreement and the Plaintiffs/Respondents' efforts to enforce that Lease Agreement. C. Denied. The responses to Paragraph 7 and Paragraph 10 are incorporated herein. The original Agreement for Forbearance contained in the October 9, 2009 letter included an indefinite ongoing obligation of the Defendant/Petitioner to abide by the terms of the lease which was modified at the request of Defendant/Petitioner's counsel to the terms as set forth in the October 22, 2009 letter. D. As previously stated in Paragraph 12 of this Answer, Defendant/Petitioner was not entitled to the satisfaction of the underlying judgment. E. Denied. On the contrary, Paragraph 14 of this Answer sets forth the Defendant/Petitioner's various instances of default as of the date of the Praecipe for Writ of Possession. F. Denied. Inasmuch as the Praecipe for Writ of Execution was filed upon a valid judgment that remained in effect, no additional notice to Defendant/Petitioner, other than notice of the filing of the Praecipe for Writ of Execution, was required. G. Denied. The responses to Paragraph 7 and Paragraph 10 are incorporated herein. The original Agreement for Forbearance contained in the October 9, 2009 letter included an indefinite ongoing obligation of the Defendant/Petitioner to abide by the terms of the lease which was modified at the request of Defendant/Petitioner's counsel to the terms as set forth in the October 22, 2009 letter. WHEREFORE, Plaintiffs/Respondents Guiseppe Barone and Giovanni Barone respectfully request this Honorable Court to deny the Petition to Open Confessed Judgment and further award Plaintiffs/Respondents all such relief as is proper and just, including, but not limited to, counsel fees and costs incurred in defending this Petition. III. REQUEST FOR STAY OF EXECUTION 37. No response required. 38. This allegation is a legal conclusion to which no response is required. 39. Denied. The strict statutory requirements and the requirements set forth in the Pennsylvania Rules of Civil Procedure were followed in the filing of the Judgment by Confession and in executing thereon. 40. Denied. In fact, no good or meritorious defenses have been raised in this Petition which are based in fact. 41. Denied. On the contrary, Plaintiffs/Respondents have been prejudiced by Defendant/Petitioner's consistent failure to abide by the terms of the Lease and the terms of the Forbearance Agreement between the parties. WHEREFORE, Plaintiffs/Respondents Guiseppe Barone and Giovanni Barone respectfully request that the prayers of the Defendant/Petitioner be denied and that they be awarded all such other relief as is proper and just, including but not limited to counsel fees and costs incurred in defending this Petition. Respectfully submitted, Robert P. Kline, Esquire Attorney ID #58798 Kline Law Office 714 Bridge Street Post Office Box 461 New Cumberland, PA 17070 (717) 770-2540 ` Print Key Output Pa e I ' 722SSI V5R3MO 040528 S1 OSS9 E 07/27/11 10:18:22 Display Device DSP04 User . . . . . . . SUSAN INQUIRY UTILITY CUSTOMER ACCOUNTING 07/27/2011 UE C511S-2 Customer Balance Inquiry 10:18:21 Cust ID.. ... BROTHERS02 Cust tame. . . : BRISSEYS PIZZA Serv Loc: ID.: VAL.LE.YST.. 00700 Serv L.oc.. . . . 700 VALLEY STREET Screen... . . . : A Since Last Bill pet'' iod--ta---Date Previous Balance 2718.99 Last Bill Amount 3708.84 Pats, Ap p I i. ed Dep . f::{:- .00 Adjustments .00 .00 Penalty/Discount . 003 - 6 . 36 Current Charges 0th 927.99 Current Balance 3708.8 Balance Record Status A Last Payment Amt 3C?.'73 Budget Billing Last Payment Date 01/05/200, Late Payment - l? Last Bill ID Last Bill Date 07/01/2011 Delinquent Notice ^ t Payment Cutoff Date 08/05/2011 -iELP F3=Exit F6=Switch F20=Notepad Exhibit "A" Print Key Output 5722SS1 V5R 3M0 040528 S1OSS97E Page #. 07/27/ 11 10:18:27 Display Dev ice DSR04 User . . . . . . . . . SUSAN INQUIRY UT ILITY CUSTOMER ACCOUNTING UC511S_3 Open Accounts R eceivable Inquir y 07/27 /2011 ti?ti : 1 0 1 8 Cust ID..... : BRO THE RS02 Cust Name. , . : BRISS YS PIZZA Serv Lac ID-: Scre VAL LEY ST. . 00700 Serv Loc . 70 VAL LEY STREET en. . . . . . : U Serv No. . , , . ; Date Srv CD CL/RT Bill ID Bill Amount smt Applied Balance Due 01 /01 /2006 02 BL TR02 20060101 2S495 59 04/01/2006 02 TEL TR02 20060402 2'= T 95 . 9w 07/01/2006 02 BL TROD' 20060702 259 X59 9` ? 2. S 00 . 0 10/01/2006 02 BL. TR02 20061001 , . 259 r S S .; 2 599,9! 259 0 .0 01/01/2007 02 BL TR02 20070101 . 259 9S n . ?' 259 .00 04/01/2007 02 BL TR02 20070401 . 309.33 .?7 !S 309 33 00 05.: 04/01/2008 02 ESL. TR02 20080402 309.3 , 309 33 .00 07/01/2008 02 BL TR02 20080702 30 9.:33 . ;'309 3w . 0 10/01/2008 02 L TR02 20081233 30 9. 33 . 309 33 ??0 01/01/2009 02 TEL TR02 20090102 309 33 . 7 . C0 04/01/2009 02 BL TR02 20090402 . 309.3 30. 93 278.40 07/01/2009 02 BL TR02 20090701 309 33 0 `? ;309. . 309.23 Total 897.06 H ELF F3=Exit F6=Switch ROLL S722SS1 vSR3MO Print Key Output 040528 5 1058 7E P 07/27/11 O , 1t?::1 ?.8: 29 Display Device . . . . DSP04 User . . . . . . . . : SUSAN INGrUIRY UCS11S-3 UTILITY CUSTOMER ACCOUNTING Open Accounts Receivable inquiry 11 U? 10:18:29 Cust ID. ... . . Serve Loc, ID.: BRO VAL THE LSY RS02 ST Gust Name.9. BRISSEYS PIZZA Screen... . : U .. 00 700 Seri . - S 700 VALLEY STREET .. Serve No . . . . . Date Srw? CI". CLrRT Bill ID 33 Arncsun,.?-...-^. A?,?_.._._ Applied Balance Duce 10/01/2009 02 BL TR02 20091001 30433 01/01/2010 02 BL. TR02 20100 .01 °(,9 ? t 3'' . 00 9.3 3 3 04/01/2010 02 B L TR02 20100401 . ' 304 33 . G'0 ;.?-`c,??. 3.::? 0 07/01/2010 02 BL TR02 20100701 33 3 9 . 00 033 10/01/2010 02 BL. TR02 20101001 30 9 33 a0 309. 33 01/01/2011 02 BL TR02 201 10101 . . 300 3 . 00 309, 33 04/01/2011 02 BL TR02 201 10402 309 . 33 ' Ott 309. 33 07/01/2011 02 ?" 3 L. ?! T'R 02 20110701 . }: ?9 33 . 00 309.33 O S/11/200 ?' .32 s? BI n TR O 2 ,, 20000701 , . . 72 0 . as 309-33 09/ 12/2002 02 BI TR02 20021002 . 0 1000 72,00 . 00 04/10/2007 02 BI TR 02 20070401 49 35 0 00 1 a. .00 03/28/2008 02 BI TR 02 20080403 . 3 249.30 38 0 . OCR 7 Total 2474.64 iELP F3=Exit Fir=Switch ROLL Print Key Output iS 1 VSR31k10 040526 I OS8 97q P0: 1 J. 07/,27/11 :1 1 f3: 32 Display Device . . . . . . DSP04 User . . . . . . . . SUSAN INQUIRY UT ILITY CUSTOMER 4CC3UNTINO 0 UC511S-3 Open Accounts Rece ivable Inquiry Cust ID.. ... : BRQ THE RSOt::_' Cust Name, .. BRISS1 YS PIZ ZA Serv Lac ID.: S VALLEY ST.. 00 700 aerv Lac. . .. 700 Vsk i_.L.'V STREET ; creen... . .. U Serv No. . . . . Date S r v CD C L/ R T Bill ID a ?_...a..... ? I ,, aunt Amt ..: .- Applied O8'/07/2 008 99 LC PNI02 20081233 .;0: 93 30 93 9 11/12/2008 99 LC PN02 20090102 31110, 9 ILI - 00 02/10/2009 99 !_C PN02 20090402 F,r kx . 05/06/2009 99 LC PN02 20090701 30.93 .00 00 1 08/ 12/2009 99 LC PN02 20091001 30.93 00 11/12/2009 99 LC PN02 20100101 30,93 . 07 02/12/2010 99 LC PN02 20100401 30.93 0 9 05/12/2010 99 LC PN02 20100701 30-93 08/10/2010 99 LC PN02 20101001 30.93 00 11/10/2010 99 LC PN02 20110141 30.93 . 00 1 02/09/2011 99 LC PN02 20110402 30.93 00 OS/10/2011 99 LC Ph102 20110701 30.93 .00 .T:ota3 HELP F3=Exit r "•-6=Switch ROLL. 07/2 7/Z2011 UE 10:10:32 Balance Due . 00 30.93 27. 84 ;:30. 93 30. 93 30.93 30.93 30.93 30. 9:3 30. 9.:3 30. 93 30. 93 w 37 14 I Page 1 of 1 Ronak Patel From: Shannon Aylesworth [saylesworth@integritybankonline.com] Sent: Thursday, July 28, 2011 11:30 AM To: Ronak Patel Subject: Redeposited checks Hi Ronak, The checks I found written by Valley Road Restaurant to J. Barone that were re-cleared are: 8/16/10 $3140.00 Ck #1473 9/17/10 $3140.00 Ck #1511 10/14/10 $3140.00 Ck #1515 None of these checks came back a second time, so his account would not have been charged for the items or the RDI fees. Shannon Aylesworth AVP Financial Integrity Department Integrity Bank 3345 Market Street Camp Hill, PA 17011 Phone: (717) 920-3691 Fax: (717) 920-2277 Email: sylesworth@integritybankonline.com Exhibit "B" 7/28/2011 1878 INTEGRITY BANK TRANSACTION PROCESSING SYSTEM TODAYS DATE 08/16/10 PAGE 1 RETURNED DEPOSITS TRANSACTION RELEASE AS OF DATE 08/16/10 TPD0410 06.25 RUN DATE 08/16/10 TIME 22.32.46 APPL ACCOUNT BATCH CUSTOMER NAME CHECK AMOUNT RETURN RETURN CHRG -----------TRANSACTION----------- CODE NUMBER TYPE MAKER NAME/ DRAWN ON REASON DISPOSITION TC DEBIT DESCRIPTION AMOUNT 02 0204008604 GIUSEPPE BARONE FED VALLEY ROAD RESTAURANT 3,140.00 INSUFFICIENT RE-CLEAR NO 62 GL OUTGOING FED 3,140.00 1878 INTEGRITY BANK TRANSACTION PROCESSING SYSTEM TODAYS DATE 09/17/10 PAGE 1 RETURNED DEPOSITS TRANSACTION RELEASE AS OF DATE 09/19/10 TPD0410 06.25 RUN DATE 09/17/10 TIME 21.40.01 APPL ACCOUNT BATCH CUSTOMER NAME CHECK AMOUNT RETURN RETURN CHRG -----------TRANSACTION----------- CODE NUMBER TYPE MAKER NAME / DRAWN ON REASON DISPOSITION TC DEBIT DESCRIPTION AMOUNT 02 0204008604 GIUSEPPE BARONE FED VALLEY ROAD RESTAURANT 3,140.00 INSUFFICIENT RE-CLEAR NO 62 GL OUTGOING FED 3,140.00 1878 INTEGRITY BANK TRANSACTION PROCESSING SYSTEM TODAYS DATE 10/14/10 PAGE 1 RETURNED DEPOSITS TRANSACTION RELEASE AS OF DATE 10/14/10 TPD0410 06.25 RUN DATE 10/14/10 TIME 21.29.01 APPL ACCOUNT BATCH CUSTOMER NAME CHECK AMOUNT RETURN RETURN CHRG -----------TRANSACTION----------- CODE NUMBER TYPE MAKER NAME / DRAWN ON REASON DISPOSITION TC DEBIT DESCRIPTION AMOUNT 02 0204008604 GIUSEPPE BARONE FED VALLEY ROAD RESTAURANT 3,140.00 INSUFFICIENT RE-CLEAR NO 62 GL OUTGOING FED 3,140.00 Guiseppe Barone 1400 Old Reliance Road Middletown, PA 17057 (717) 514-5650 (cell) August 10, 2010 VIA HAND DELIVERY & CERTIFIED MAIL Brandon C. Powers c/o Brother's Pizza 700 Valley Road Enola, PA 17025 RE: '700 Valley Road Enola, PA 17025 Dear Brandon: As of the date of this letter, I have not yet received your rent payment for the month of August, 2010 relative to the above-referenced premise. In accordance with the terms of the Lease, I request that you immediately forward the amount of $3,290.00, which sum reflects this month's rent in the amount of $3,140.00, in addition to the applicable late fee for this month in the amount of $150.00. In addition, please allow this correspondence to confirm that you have not yet: paid the 2010 property taxes. According to the terms of the Lease, you are responsible to pay all of the real and personal property taxes levied or assessed against said premise. I request that you immediately provide me with proof of payment of taxes for 2010. You continue to be in default of the Lease as set forth above. I expect full satisfaction of the above within ten (10) days of receipt of this correspondence. Otherwise, I will promptly move forward to take possession of the premise, as well as seek to collect judgment and pursue any and all legal remedies available, including attorney fees and costs. Sincerely, GUISEPPE BARONE Exhibit "C-1" February 8, 2011 VIA HAND DELIVERY & CERTIFIED MAIL Brandon C. Powers c/o Brother's Pizza 700 Valley Road Enola, PA 17025 RE: 700 Valley Road Enola, PA 17025 Dear Brandon: Guiseppe Barone 1400 Old Reliance Road Middletown, PA 17057 (717) 514-5650 (cell) As of the date of this letter, I have neither received partial rent payment for the month of January, 2011 in the amount of $1,250.00 nor have I received the rent for February in the amount of $3,250.00 relative to the above-referenced premise. In accordance with the terms of the Lease, I request that you immediately forward the amount of $4,800.00, which sum reflects the amount past due, in addition to the applicable late fees of $300.00. In addition, please provide me with proof of payment of the 2010 real estate taxes. According to the terms of the Lease, you are responsible to pay all of the real and personal property taxes levied or assessed against said premise. You continue to be in default of the Lease as set forth above. I expect full satisfaction of the above within ten (10) days of receipt of this correspondence. Otherwise, I will promptly move forward to take possession of the premise, a's well as seek to collect judgment and pursue any and all legal remedies available, including attorney fees and costs. Sincerely, GUISEPPE BARONE Exhibit "C-2" Guiseppe Barone 1400 Old Reliance Road ' Middletown, PA 17057 (717) 514-5650 (cell) March 11, 2011 VIA HAND DELIVERY & CERTIFIED MAIL Brandon C. Powers c/o Brother's Pizza 700 Valley Road Enola, PA 17025 RE: 700 Valley Road Enola, PA 17025 Dear Brandon: As of the date of this letter, I have not received this month's rent in the amount of $3,244.80 relative to the above-referenced premise. In addition, I still have not received payment in the amount of $300.00, which sum reflects the late fee charges for the months of January and February, 2011. In accordance with the terms of the Lease, I request that you immediately forward the amount of $3,244.80, in addition to the applicable late fees of $450.00. In addition, I am enclosing a copy of an invoice of my attorney, Robert Kline, Esquire, in the amount of $160.60, which I incurred in an effort to collect the past due rent from you. Likewise, I request that you immediately forward payment of this invoice to me. You repeatedly continue to be in default of the Lease as set forth above. I expect full satisfaction of the above within ten (10) days of receipt of this correspondence. Otherwise, I will promptly move forward to take possession of the premise, as well as seek to collect judgment and pursue any and all legal remedies available, including attorney fees and costs. Sincerely, GUISEPPE BARONE Enclosure Exhibit "C-3" Guiseppe Barone 1400 Old Reliance Road Middletown, PA 17057 (717) 514-5650 (cell) April :12, 2011 VIA HAND DELIVERY & CERTIFIED MAIL Brandon C. Powers c/o Brother's Pizza 700 Valley Road Enola, PA 17025 RE: 700 Valley Road Enola, PA 17025 Dear Brandon: As you know, in March, you assured me that this month the rent payment would be made in a timely fashion. As of the date of this letter, I have not received this month's rent in the amount of $3,244.80 relative to the above-referenced premise. In addition, I still have not received payment. in the amount of $450.00, which sum reflects the late fee charges for the months of January, February and March, 2011. In accordance with the terms of the Lease, I request that you immediately forward the amount of $3,244.80, in addition to the applicable late fees of $600.00. As you know, your rent check for the month of March was not "cleared" by your bank as you have, yet again, paid the rent without sufficient funds in your account. Accordingly, I will no longer accept any personal or business check from you; I will only accept a cashier's check I request that you immediately make full satisfaction of the above by issuance of a cashier's check in the amount of $3,844.80. You repeatedly continue to be in default of the Lease as set forth above. I expect full satisfaction of the above within ten (10) days of receipt of this correspondence. Otherwise, I will promptly move forward to take possession of the premise, as well as seek to collect judgment and pursue any and all legal remedies available, including attorney fees and costs. Lastly, I will no longer be sending "reminder" letters to you each month. I expect payment of rent next month no later than the 5th of the month. Otherwise, I will proceed to take possession of the premise without further notice. Sincerely, Exhibit 11C-4" GARY EICHELBERGER CHAIRMAN RICHARD ROVEGNO VICE CHAIRMAN DENNIS MARION CHIEF OPERATIONS OFFICER EDWARD SCHORPP SOLICITOR BARBARA B. CROSS TAX CLAIM BUREAU OF CUMBERLAND COUNTY STEPHEN D. TILEY- SECRETARY One Courthouse Square, Room 106, Carlisle, PA 17013-3389 ASSISTANT SOLICITOR Printed: 6/21/11 C (717)240-6366 Receipt No.: 82204 11:11:33 Receipt Date: 6/21/2011 Control Number: 9-000909 **** RECEIPT **** Page: 1 Property Description: BARONE, GIUSEPPE & GIOVANNI 700 VALLEY STREET ENOLA PA 17025 Map No: 09-12-2993-073 Tax Year Description 2009 CTY-E PENNSBORO TWP 2009 LIB-E PENNSBORO TWP 2009 MUN-E PENNSBORO TWP 2009 BUREAU COSTS 2010 CTY-E PENNSBORO TWP 2010 LIB-E PENNSBORO TWP 2010 MUN-E PENNSBORO TWP 2010 BUREAU COSTS Tendered > CHECK Received By > JC Paid By > BARONE, GIUSEPPE & GIOVANNI Remarks > 63937 Commercial - Restaurant Situs Information: 700 VALLEY STREET EAST PENNSBORO TOWNSHIP Penalty & Face Interest Costs 567.89 129.21 42.61 9.70 281.70 64.04 42.55 Received For Year Of 2009 567.89 78.09 42.61 5.86 281.70 38.72 22.05 Received For Year Of 2010 Total Received * Continued * Total 697.10 52.31 345.74 42 -55 $1137.70 645.98 48.47 320.42 22.05 $1036.92 $2174.62 Exhibit "D" Print Key Output Page 5722SSI V5R3M03 03403526 SIO SS 7E 07/27/11 10:100c Display Device . . . . . DSP034 User . . . . . . . . . SUSAN INQUIRY UTI LITY CUSTOMER A CCOUNTING 07/z`2.7/2011 l UC511S-2 Cu stomer Balance Inquiry 10:17:57 Cust ID.. . .. : BROTHERS031 Gust Name- : BRI SSEYS PIZ?A Serv Loc. ID.: VALLEY:ST.. W037 030} Serv Loa. ... : 00 VALLEY STREET Screen. .. . .. : A _..._.. .._..._..._._..._......?...?_.._ Since Last Bill Period-to-Date ..._ Previous Balance S44. 15 Last Bill Amount 1213.05 Pmts, Applied Dep t3 ; 0303 Adjustments .00 .003 Penalty/Discount .00 4143 Current Charges .00 627.47 Current Balance 1213.05 Balance Record Status A Last Payment A?m?t 9183 Q : : Budget Billing Last Payment Date 22 /1 011206109 Late Payment N Last, Bill ID 2031 ?1 Last Bill Date 037/031/2011 Delinquent Notice ? N Payment Cutoff Date 08/35/2011 HELD' 1-3-Exit T-6-Switch F20=Notepad Exhibit "E" Print Key Output 5722SS1 V5R3M0 040528 S10SS97E 07127/ Page 1 F 11 10:18:09 Display Device . . . . . : DSP04 _ User . . . . . . : SUSAN INQUIRY UTILITY CUSTOMER ACCOUNTING 037/27/2011 UE UCS11S°3 Open Accounts Rece ivable Inquiry; 10:1009 Cust ID... BRO THERS01 Cust Name. ..; BRISSEYS PI ZZA ' Serv Loc ID.: VAL LEYST.. W0700 Serv Lot:.. . .. : 700 VAi.,..s._E Y STREET Screen......: U Serv No.... .. Date Srv C CL/RT Bill ID Bi ll Amount Amt Applied Balance Due 01/01/2009 01 BL SW03 20090102 119.4? 119. 49 .00 04/01/2009 01 BL SW03 200^?0402 i4`, 61 14 . 61 C}C? 07/01/2009 01 BL SW03 20090701 119-S6 135. 5 00 10/01/2009 01 BL SW03 20091001 131.54 131-54 .00 1 '01/01/2010 01 BL SW03 20100101 11449 .00 1 19. 49 04/01/2010 01 BL SW03 20100401 107.94 .00 107. 9q, 07/01/2010 01 BL SW03 20100701 10 S: 93 00 10S. 9:3 , 1 10/01/2010 01 BL SW03 20101001 134. OE- 00 134.05 01 /01/2011 01 BL SW03 20110101 ,W u W 211,84 04/01/2011 01 BL SW03 20110402 2004S .00 202.45 1 07/01/2011 01 BL SW03 201 10701 21718 . 00 213,10 02/29/2000 99 LC PN01 20000401 16, S 16. SCID . 00; Total 1094.88 1 HELP F3=Exit F6=Switch ROLL 1 1 i 1 1 I 1 5722SS1 V5R3M0 04052Print fey Output 8 ' S 1OS r r7Et Page 1 Display Device User - - DSPC34• . . . . . . . . . SUSAN !NG0IFt4` ?1CG11`aM UTILITY CUSTOMER ACC OUlt#T I N Q Open Accounts Receiv able In quir 07/27:2011 l1? ?=ust .?D. Na 1Q: 2R; 1 +.'J e r v L 1? ? I D . ? me... ? I`1 L E ? C ?„ L YST.. W0..? .00 Serv Lo - .E.: i'i ,d-,.? _;7 . Y ?! ? i .°. Z., t?=; Screen . ', c , 700 ,,-,. Date Srv CD CL/RT Iai.1I ID ._,_..?._._,._m.._..... Dill ..._._...__._._.__ Amount ._......._.......,.n.._._...._.......?._.. A " 11/12/2008 99 LC PN01 20090102 mt Applied Balance Due 02/10/2009 99 LC Ph101 200904.02 12 S? 10. ,,..? 1. ?, G?. ' 00 t 05/06/2009 99 :- L . P€ 01 20090701 ? 1 " . . 08/12/2009 9 LC PN01. 20091001 14-96 96 1.3. 0Q 1. 1/12/2009 99 LC PN01 20100101 26, 1 ` . 1 i. Ss 0C) :.72/12/2010 99 t' i C PNOI 201004.01 i s 1S. ,E 1.'3, t . 0Q OS/12/2010 99 LC PN01 20100701 9S 10.• . 11 95 08/10/2010 99 LC PN01 20101001 w 1.,?. i 0 . 0 79 11/10/2010 ' 99 LC P1?101 20110101 10 ? 0 . 1010 54 12x 16/2010 99 LI MS01 20110101 13.41 00 =Tl'? . , 13 4# 02/09/.2011 99 LC PN01 .2'01 10402 X60. F~5?'? ? `;?? . . 3 Qt, '05/10/2011 99 LC PN01 20110701 1S r3;,?, 1 . ? ? 1 1 S 20-2S GO . 20.25 HELP F3=Exit F6= S it . .".'- t a t 118.17 w ch ROLL ti _ ? ?„ mar n ,ran n , .,,.•n 1 ,? ,,. psh 4 MMG Date 9/08/2010 INSURANCE Agent - DON JACOAS INSUPJIXCE SERVICES INC 006 37 Insvred - VALLEY ROAD RESTAURANT INC 383 N 26TH ST CAMP HILL PA 17011-3620 Policy Numbe (s) - HP10969723 e above po lby,,(g) ?} ve been cancelled for non-payment of premium ae of 9/29/2010, f RAND PrWaketing your plat of tht world" P.O. Box 729, Presque Tole, ME 04769-0729 = {T) i-800.343-0533 • (FJ 207 7e4-4622 www.mmglns.com A Moine Mutual Group Company exhibit "p" ".ex;s-\'ex s'TVj'1 D- asic rase Law & Statutes j Search - 8 Results - 42 & 2737 Page 1 of 1 Source: All Sources > Find Statutes, Regulations Administrative Materials & Court Rules > PA - Pennsylvania Statutes Terms: 42 & 27,37 (Edit Search) 42 Pa.C.S. § 2737.1 Preview Annotated Version Preview Shepard's?p) Report 42 Pa. C.S. § 2737.1 PENNSYLVANIA STATUTES, ANNOTATED BY LEXISNEXIS (R) Copyright © 2011 by Matthew Bender & Company, Inc., a member of the LexisNexis Group. *** Pa.C.S. documents are current through 2011 Reg. Sess. Act 75, July 7, 2011 *** *** P.S. documents are current through 2011 Reg. Sess. Act 3, May 16, 2011 *** *** June 23, 2011 Annotation Service *** PENNSYLVANIA CONSOLIDATED STATUTES TITLE 42. JUDICIARY AND JUDICIAL PROCEDURE PART II. ORGANIZATION SUBPART B. OTHER STRUCTURAL PROVISIONS CHAPTER 27. OFFICE OF THE CLERK OF THE COURT OF COMMON PLEAS SUBCHAPTER B. PROTHONOTARIES 42 Pa.C.S. § 2737.1 (2011) § 2737.1. Incorrect debtor identified. (a) Procedure. --A creditor that files for a judgment by confession under section 2737(3) (relating to powers and duties of the office of the prothonotary) shall comply with the Pennsylvania Rules of Civil Procedure regarding confession of judgment, including any notice provisions. A debtor who has been incorrectly identified and had a confession or judgment entered against him may petition the court for costs and reasonable attorney fees as determined by the court. (b) Effect on judgment. --A judgment shall not be stricken or opened because of a creditor's failure to provide a correctly identified debtor with instructions pursuant to this section regarding procedures to follow to strike a judgment or regarding any rights available to an incorrectly identified debtor. Source: All Sources > Find Statutes Regulations, Administrative Materials & Court Rules > PA - Pennsylvania Statutes Terms: 42 & 2737 (Edit Search) View: Full Date/Time: Tuesday, August 2, 201.1 - 2:31:57 PM EDT Products & Services i LexisNexis Bookstore LexisNexis by Credit Card I Feedback I Sign Oft I Help LEXtiI XIS About LexisNexis I Terms and Conditions I Privacy Statement j Support Identifier Copyright 0 2011 LexisNexis. All rights reserved. Exhibit "G" https://www3.lexisnexis.com/bcls/auth?cacheKey=Tl82487120&srv=ols BooleanRetrieve... 8/2/2011 VERIFICATION I verify that the statements made in the foregoing Answer to Defendant's Petition to Strike, or Alternatively Open Confessed Judgment and Request for Stay of Execution are true and correct. I understand that false statements herein are made subject to the penalties of 18 Pa. C.S. Section 4904 relating to unsworn falsification to authorities. 14 1( Date Fis?.!q?{2?? , ' F' 1-2 " 7702552 ',,LINE LAW OFFICE ? PAGE 13!13 VER>[k'ICATTON I verify that the statements made in. the foregoing Answer to Defendant's Petition to Strike, or Alternatively Open Confessed judgment and Request for Stay of Execution are true and correct. I understand that Use statements herein are made su.kiect to the penalties of 18 Pa. C.S. Section 4904 relating to unsworn falsification to authorities. a()(A Date 9WIA NE CERTIFICATE OF SERVICE I hereby certify that I served a true and correct copy of the foregoing Answer to Defendant's Petition to Strike, or Alternatively Open Confessed Judgment and Request for Stay of Execution upon Defendant, by depositing same in the United States Mail, first class, postage pre- Paid on the T" day of August, 2011, from New Cumberland, Pennsylvania, addressed as follows: Paige Macdonald-Matthes, Esquire Serratelli, Schiffinan & Brown, PC 2080 Linglestown Road Harrisburg, PA 17110 Attorney for Defendant ROBERT P. KLINE, ESQUIRE 714 Bridge Street Post Office Box 461 New Cumberland, PA 17070-0461 (717) 770-2540 Attorney for Plaintiffs GUISEPPE BARONE AND GIOVANNI BARONE, PLAINTIFFS/RESPONDENTS V. BRANDON C. POWERS, DEFENDANT/PETITIONER IN THE COURT OF COMMON I?L E& O-' CUMBERLAND COUNTY, Pg9SYJ;YAi A xtY c I- FT1 d -G o u -4 . 09-6533 CIVIL TERM, ORDER OF COURT AND NOW, this day of August, 2011, upon consideration of the Defendant's petition to strike or, alternatively, open confessed judgment, and for stay of execution, and the answer filed thereto, argument shall commence at 3:30 p.m., Tuesday, August 16, 2011, in Courtroom Number 5, Cumberland County Courthouse, Carlisle, Pennsylvania. By the Court, O'er. Albert H. Maslan , J. Robert P. Kline, Esquire .Iv For Plaintiffs/Respondents Oqle-s, M Paige Macdonald-Matthes, Esquire p For Defend ant/Petitioner saa