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HomeMy WebLinkAbout01-6965O.D. POWELL, VS. Plaintiff THOMAS E. ROBEY and KAREN Do ROBEY, Defendants · IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA : CIVIL ACTION - LAW NOTICE YOU HAVE BEEN SUED IN COURT. If you wish to defend against the claims set forth in the followin9 pages, you must take action within twenty (20) days after this Complaint and Notice are served, by enterin9 a written appearance personally or by attorney and filin9 in writin9 with the Court your defenses or objections to the claims set forth against you. You are warned that if you fail to do so the case may proceed without you and a judgment ~y be entered against you by the Court without further notice for any money claimed in the Complaint or for any other claim or relief requested by the Plaintiff. You may lose money or property or other rights important to you. YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER OR CANNOT AFFORD ONE, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW TO FIND OUT WHERE YOU CAN GET LEGAL HELP. Cumberland County Bar Association 2 Liberty Avenue Carlisle, PA 17013 (717)249-3166 OR (800)990-9108 NOT I C IA Le hah demandado a usted en la corte. Si usted guiere defenderse de estas demandas expuestas en las paginas siguientes, usted tiene viente (20) dias de plazo al partir de la fecha de la demanda y la notificacion. Usted debe presenter una apariencia escrita o en persona o por abogado y archivar en la corte en forma escrita sus defenses o sus objeciones a las demandas en contra de su persona. Sea avisado gue si usted no se defiende, la corte tomara medidas y puede entrar una orden contra usted sin previo aviso o notificacion y por cualquier queja o alivio que es pedido en la peticion de demanda. Usted puede perder dinero o sus propiedades o otros derechos importantes para usted. LLEVE ESTA DEMANDA A UN ABODAGO INMEDIATAMENTE. SI NO TIENE ABOGADO O SI NO TIENE EL DINERO SUFICIENTE DE PAGAR TAL SERVICIO, VAYA EN PERSONA O LLAME FOR TELEFONO A LA OFICINA CUYA DIRECCION SE ENCUENTRA ESCRITA ABAJO PARA AVERIGUAR DONDE SE PUEDE CONSEGUIR ASISTENCIA LEGAL. Cumberland County Bar Association 2 Liberty Avenue Carlisle, PA 17013 (717)249-3166 OR (800)990-9108 powe 11 \magar o\ complaint O.D. POWELL, VS. Plaintiff THOMAS E. ROBEY and KAREN D. ROBEY, Defendants : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA COMPLAINT 1. Plaintiff is O.D. Powell (Powell), an adult individual who resides at 1611 Sycamore Street, Harrisburg, PA 17104. 2. Defendants are Thomas E. Robey and Karen D. Robey (Robey), husband and wife and adult individuals who reside at 322 Bonneybrook Road, Carlisle, PA 17013. 3. On January 10, 1995 Robey, as Lessee, entered into a written lease agreement with Charliene Magaro and S. Brian Magaro (Lessees) covering premises known as 413 Buckthorn Street and 412 S. 14th Street, both in the City of Harrisburg. A copy of said Agreement is attached hereto as Exhibit "A". 4. The aforesaid lease has a commencement date of February 1, 1995, and calls for a variable rent increasing each year of the term. The rent for the year ending January 31, 2002 is $1,046.83, all rent payable on the first day of each respective month. (See Article 1 of lease). 5. The lease provides for additional rent in the form of an obligation by Robey to pay all takes and City municipal utilities. See §2.02(a) of lease. 6. Robey has failed to pay taxes, municipal utilities and the rent for November and December 2001, in accordance with the scheduled attached hereto as Exhibit "B", in which event all future monthly rent, to wit, from January 2002, have become accelerated pursuant to §lT.01(e) (1) of the lease. 7. Powell notified Robey of the foregoing delinquencies even prior to December 7, 2001, but on that date he gave him telephone notice thereof with written confi~r~tion within 48 hours thereafter, all pursuant to §17.01(a) of the lease. 8. Robey has not paid the foregoing delinquency or any part thereof. WHEREFORE, Plaintiff demands judgment against Defendants in the sum of $14,767.06, being an amount requiring compulsory arbitration in Cumberland County. YOFFE & YOFFE, P.C. NORMAN M. YOFFE, ESQUIRE Attorney for Plaintiff 214 Senate Avenue, Suite 203 Camp Hill, PA 17011 (717) 975-1838 Attorney ID No. 07135 powel 1 \magaro\ complaint O.D. POWELL, VS. Plaintiff THOMAS E. ROBEY and KAREN D. ROBEY, Defendants : IN THE COURT OF COMMON PLEAS OF · CUMBERLAND COUNTY, PENNSYLVANIA · NO. : CIVIL ACTION - l_d~.W VERIFICATION I hereby state that I am an adult individual who is authorized to make this verification and that the facts set forth in the foregoing Complaint are true to the best of my knowledge, information, and belief. I understand that false statements herein are made subject to the penalties of 18 Pa. C.S. §4904 relating to unsworn falsification to authorities. Dated: O.D. POWELL LEASE AGREEMENT THIS AGREEMENT made this , between CHARLIENE MAGAR0 and S. BRIAN MAGARO (hereinafter called "Lessor) whose business address is 606 Magaro Road, Enola, 'Pa, 17025 and THOMAS E. ROBEY (hereinafter called "Lessee") whose present address is 332 Bonneybrook Road, Carlisle, Pa. IT IS HEREBY AGREED by and between Lessor and Lessee, intending to be legally bound for themselves and for their respective heirs, executors, administrators, successors and assigns in the manner following, it being understood that the premises are demised under and subject to these covenants, all of which are also to be regarded as strict legal conditions: ARTICLE 1 DEMISE,DESCRIPTION, USE, TERM, AND RENT Lessor hereby demises and lets unto Lessee and Lessee hereby leases from Lessor al~ that ~pproximate 2,900 sq. ft. space in the building located at 4~3BUCKTHORN STREET in the CITY OF HARRISBURG, Pennsylvania AND THE LOT WITH OUT-BUILDING located at 412 S. 14TH STREET. Such space is to be used only as a catering commisary and uses normally incident thereto and for no other purpose unless approye~ ~¥ Lessor, for the term of ! yearS beginning the ~'!~ and ending the ~7/~,~ The first year's rent being a fixed annual rent in the sum of $6,000~.00, the second year's rent being a fixed annual sum of $7,800.00, with an annual increase of 10% for the next 5 years; lawful money of-the United States of America, payable as specified in Article II. ARTICLE 2 RENT Minimum Rent 2.01 Lessee agrees to and shall pay Lessor at 606 Magaro Road, Enola, Pennsylvania 17025, or at such other place as Lessor shall designate from time to time in writing, as minimum rent for the leased premises, the FIRST YEAR minimum annual sum of $6,000. payable without demand and without setoff or deduction, except as expressly provided herein, in equal monthly installments of $500.00 each in advance on the fifteenth day of each calendar month, commencing on ~ and continuing thereafter until said total shall be paid. ADDITIONAL RENT 2.02 Lessee agrees to pay as rent to Lessor, setoff or deduction, in addition to the hereinbefore provided, the following: without demand, minimum rental a) Ail real estate taxes, water and sewer rent, garbage trash collection charges assessed or imposed on the premises by the City during the term of this lease. and/or leased b) Ail insurances premiums; fire and otherwise, matching present coverage on the leased premises. c) Any and all other costs incurred by Lessor in the operatio~ and maintenance of the building. Such costs shall include repairs; maintenance or mechanical systems and service contracts; and all items properly constituting direct operation costs, which items are or may be deducted (and not capitalized) for Federal income tax purposes, according to standard accounting practices as determined by the Lessor accountant. SECTION 3 TERMINATION BY NOTICE OR CONTINUATION 3.01 Either party hereto may terminate this lease at the end of the term by giving to the other party written notice of termination at least ninety (90) days prior to the end of the term. At the end of the term OR before, the Lessee may opt to purchase the properties and building at a price determined by the Lessors. If this option is NOT taken, the rent for the properties and building will be increased to a fair market price upon the same covenants and conditions in force immediately prior to the expiration of the term hereof for a further term of one (1) year and so on from year to year unless or until terminated by either party hereto giving to the other at least ninety (90) days written notice of termination previous to the expiration of the then current term; provided, however, that if neither party hereto shall have elected to terminate this lease as aforesaid and Lessor, on or prior to the last day permitted as aforesaid for giving notice of termination at the end of the then current term, shall have given Lessee, instead of a termination notice, a written notice setting forth proposed changes to the covenants or conditions of this lease, and if lessee shall not within ten (10) days from the giving of Lessor's notice, notify Lessor of Lessee's intention to vacate the demised premises at the end of the then current term, Lessee shall be considered as having accepted the changes and as electing to continue as Lessee under this lease as changed by such notice from Lessor, for a further term as above provided or for such other term as may be stated in Lessor's notice. Upon receipt of notice of termination as pro- vided above, Lessee agrees to vacate the leased premises within sixty (60) days of the end of the then current term and expressly waives the benefits of all laws, statutes or ordinances, now or hereafter enforced, providing for additional notice. Lessee expressly agrees to pay Lessor the amount due and payable under this Agreement for any extension granted under the sixty (60) day provision of this Section. Lessee agrees to pay one full month's charges for any extension that amounts to less than one (1) full month. SECTION 4 COVENANT TO PAY RENT AND ADDITIONAL RENT; LATE CHARGE Lessee shall, without any demand therefore and without setoff, pay the said specified rent, at the time, at the place and in the manner herein provided, and also all other sums which may become due by Lessee under this lease. All such other sums shall b~ payable as rent for all purposes whether or not they would other- wise be considered rent. If any payment or any part thereof to be made by Lessee to Lessor pursuant to the terms hereof is not received by Lessor on or before the tenth (10th) day of any calendar month, a "late charge" of five cents ($.05), or such lesser amount as represents the maximum amount Lessor lawfully may charge in respect of Lessee, for each dollar so overdue ,may be charged by Lessor for the purpose of defraying the expense incident to handling such deliquent payment, together with interest from the date when such payment or part thereof was due at the rate which is the lesser of fifteen percent (15%) per annum or the highest rate per annum permitted in respect of Lessee under applicable law. Nothing herein shall be construed as waiving any rights of Lessor. arising out of any defaults of Lessee by reason of Lessor's assessing or accepting any such late payment or interest; the right to collect the late charge and interest assessed herein is separate and apart from any rights relating to remedies of the Lessor after default by Lessee in the performance or observance of the terms of this lease. Without limiting the generality of the foregoing, if Lessee shall be in default in the performance of any of its obligations hereunder, Lessor 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 Lessee, and Lessee shall reimburse Lessor for any sums paid or costs incurred by Lessor in curing such default, including reasonable attorney's fees and other legal expenses, including also the said late charge and interest at the rate which is the lessor of fifteen percent (15%) per annum or the highest rate per annum permitted in respect of Lessee under applicable law on all sums paid and costs incurred by Lessor as aforesaid, which sums and costs together with late charges and interest thereon shall be deemed additional rent hereunder. SECTION 5 USE 5.01 Lessee shall not use or occupy, or permit to be used or occupied, the demised premises or any part thereof, other than as hereinbefore specified, nor shall Lessee use in connection, with the demised premises any name other than the name used in signing this lease. Lessee shall not do or commit, or suffer to be done or committed, any act or thing whereby, or in consequence whereof, the rights of other occupants of the building will be obstructed or interfered with or whereby the other occupants of the building will in any way be injured or annoyed or whereby the building will be damaged. 5.02 Lessee shall provide to Lessor, at least ten (10) days prior to the beginning of the term of this Agreement, a comprehensive listing of all materials used or stored by Lessee at the demised premises that are explosive, highly flammable, noxious in odor, or that may be otherwise dangerous in order that Lessor can insure that such materials are properly stored and/or used by Lessee. Lessor retains the right to require Lessee to move~ remove, or otherwise alter the storage of the materials contem- plated by this Section due to concerns regarding safety and health of other building tenants and occupants and the surrounding neighborhood. 5.03 No animals, including without limitation, dogs, cats, mon- keys, rats, mice, birds and fish, shall be brought into or kept in or about the demised premises. SECTION 6 ASSIGNMENT AND SUBLETTING Lessee .shall not assign, mortgage, or pledge this lease, or sublet the demised premises or~ any part thereof, without the prior written consent of Lessor, such consent not to be unreasonably withheld. An assignment within the meaning of this lease is intended to comprehend not only the voluntary action of Lessee, but also the assignment by any receiver, trustee, or other person appointed by any court and also any levy or sale on execution or other legal process against Lessee's goods or other property or the leasehold, and every assignment of assets for the benefit of creditors, and the filing of any petition or order or any adjudication in bankruptcy or under any insolvency, reorgan- ization or other voluntary or compulsory procedure, and the calling of a meeting of creditors, and the filing by or against Lessee of any petition or notice for a composition with credi- tors. No assignment or subletting shall in any way ~lieve or release Lessee from liability upon any of the covenan! ,r condi- tions of this lease until such time as Lessee is able to cause the sublessee or assignee to execute and deliver to the Lessor, as assumption of liability agreement in form satisfactory to Lessor, including an assumption by the Assignee of all the obli- gations of Lessee and the assignee's ratification of and agree- ment to be bound be all the terms and conditions of this Lease. SECTION 7 ALTERATIONS 7.01 No alterations, additions or improvements to the demised premises shall be made without first submitting a detailed des- cription thereof to Lessor and obtaining Lessor's written approval, such approval not ~, be unr,. ~onably withheld. All alterations, n~tditions or im~ ement ~ade by Lessee and all fixtures atta, ~d to the dem~ed premises shall become the property of L~sor and remain at the demised premises unless otherwise agreed in writing. Lessee shall not erect or place, or cause or allow to be erected or placed, any si~u, advertising matter, lettering, stand, booth, showcase or other article or matter in or upon the demised premises and/or the premises of which the demised premises are a part, without the prior written consent of Lessor, wall dividing leased premises will be put in at landlord's sole expense if upon landlord leasing the remained of warehouse space to other tenants,~ such consent not to be unreasonably withheld. Any sign or related item under this section must be in conformance with existing ordinances of th~ City of Harrisburg or other ordinances or regulations, as applicable. 7.02 Lessee shall not place weights anywhere beyond the safe carrying capacity of the structure. 7.03 The fixtures and other alterations which are made on the demised premises on behalf of Lessee which are capable of removal must be removed at the option of the Lessor at the termination of this lease. Lessee shall remove the fixtures and repair the damage to the premises, if any, caused by such removal at Lessee's expense. Lessor shall notify Lessee of its desire regarding removal within sixty (60) days from the expiration of the then current term. 7.04 Renovations undertaken for and on behalf of the Lessee by the Lessor shall be undertaken in accordance with the approved plans. SECTION 8 RULES AND REGULATIONS Any rules and regulations attached to this lease and such addi- tions or modifications thereof as may from time to time be made by Lessor, upon written notice to Lessor, shall be deemed a part of this lease, as conditions, with the same effect as though written herein, and Lessee also covenants that said rules and regulations will be faithfully observed by Lessee, Lessee's em- ployees, and all persons visiting the demised premises or claiming under Lessee. SECTION 9 FIRE OR OTHER CASUALTY 9.01 If, during the term of this lease, or any renewal or exten- sion thereof, the building is so damaged by fire or other casualty that the demised premises cannot be used for the purposes for which the premises were leased, as described in Article 1 (whether or not the demised premises are damaged), then, at Lessor's option, the term of.this lease upon written notice from Lessor, given within thirty (30) days after the occurrence of such damage, shall terminate as of the date of the occurrence of such damage. In such case, Lessee shall pay the rent to the time of such termination and Lessor may enter upon and repossess the demised premises without further notice and with the right to break in forcibly to take possession. 9.02 If Lessor does not. elect to terminate the term of this lease, Lessor will repair the building and Lessor may enter and possess the demised premises for that purpose, and the rent shall be apportioned and suspended while Lessee is deprived of the demised premises; provided, however,, that if Lessee is only deprived of a portion of the demised premises only an equitable portion of the rent shall be suspended. ~ 9.03 If the demised premises shall be only slightly damaged so that such damage or the damage to the building does not render the demised premises unfit for the purposes for which the premises were leased, as described in Article 1, Lessor will repair whatever portion, if any, of the demised premises which may have been damaged and Lessee will continue in possession and no rent will be apportioned or suspended. 9.04 If a dispute arises as to the amount of rent due under Section 9, Lessee agrees to pay the full amount claimed by Les- sor. Lessee shall, however, have the right to proceed by law to recover the excess payment, if any. 9.05 In no event shall Lessor be obligated to repair, restore or replace any fixtures, improvements, alterations or other property for or on which Lessee carries or should have carried appropriate insurances, regardless of whether or not Lessee receives any insurance settlement on its claim or claims thereunder. SECTION 10 LESSOR'S RIGHT TO ENTER Lessee will permit Lessor, Lessor's agent or employees or any other person or persons authorized by Lessor, in writing, to inspect the demised premises at any time, and to enter the de- mised premises if Lessor shall so elect, for the purpose of making alterations, improvements or repairs to the building or for any purpose in connection with the operation or maintenance of the building, without depriving Lessee .of the use of the demised premises' unreasonably. SECTION 11 INSURANCE AND INDEMNITY 11.01 Lessee agrees, at lessee's own cost and expense, Lessee will procure and continue in force the following insurance coverage during the terms of this lease: general liability insurance on an occurrence basis covering any and all claims for injuries to persons occurring in, upon, or about the premises, including any period during which Lessee is engaged in making any repairs or alterations to the premises and including 211 damage to or from signs, glass awnings, fixtures, or other appurtenances now or hereafter erected by, on or about the premises during the term of this lease, with minimum limits of $250,000 for personal and bodily injury to, or death of, any one person; $250,000 for property damage; $500,000 for personal and bodily injury as an aggregate amount for any incident; and such insurance shall also include contractual liability coverage. Such insurance shall be written with a company or companies of recognized responsibility authorized to~ engage in the business of general liability insurance in the Commonwealth of Pennsylvania. There shall be delivered to Lessor: (i) at least twenty (20~ days prior to the day upon which this lease shall commence, a certif~icate of such insurance, and (ii) at least twenty (20) days prior to the expiration of any policy, a renewal or replacement of such insurance, with proof satisfactory to Lessor of the payment of premiums therefore. All such policies shall name Lessor (and any other party designated by Lessor) as an additional insured, and shall contain a provision that such policies may not be canceled or changed without at least ten (10) days prior written notice to Lessor. In the event Lessee fails to furnish such policies, Lessor may obtain such insurance, and the premiums on such insurance shall be deemed additional rent to be paid by Lessee to Lessor upon demand. 11.02 Lessee will not do or commit, or suffer or permit to be done or committed, any act or thing whereby, or in consequence whereof, the policy or policies of insurance of any kind on or in connection with the building shall become void or suspended, or in consequence whereof the insurance risk on the building according to the insuring companies shall be rendered more hazardous, and Lessee shall pay as additional rent any increase of premiums for the entire building payable to any insurers, whether the same or substituted insurers, caused by reason of the breach of this covenant. 11.03 Lessor hereby agrees to carry appropriate insurance on the demised premises and property, but shall not insure any property (either real or personal) or improvements to the demised premises that are to be insured by the Lessee under this section. SECTION 12 REPAIRS AND CONDITION OF PREMISES 12.01 At the expiration or other determination of this lease, Lessee shall leave the demised premises, and during the term will keep the same, in good order and condition, ordinary wear and tear and damage by fire or other casualty alone excepted; and for that purpose and except as stated, Lessee will make all necessary repairs and replacements. Lessee will use every reasonable pre- caution against fire and will give Lessor prompt notice of any damage to or accident upon the demised premises. Lessee will also at all times remove all dirt, rubbish, waste and refuse from the demised premises and at the termination of the term will also have had removed all its property therefrom, to the end that Lessor may again have and repossess the demised premises. Lessee acknowledges that the demised premises are now in good order and condition. Except as expressly otherwise provided in this lease, Lessor shall have no obligation to make any repairs, improvements or alterations to the demised premises at any time. 12.02 Lessee shall be responsible for the costs of repairs or maintenance to all integral components of the premises, including but not limited to; the building roof, gutters, downspouts, plumbing, heating and electrical system, restroom facilities~ structural defects or repairs, and all common building areas, unless such repairs are necessitated by the actions or negligence of Lessor, its agents, employees, or invitees. 12.03 Lessee shall pay all ordinary repair and maintenance costs to the grounds and the premises not covered elsewhere in this Agreement, including but not limited to; snow removal,. maintenance of sidewalk and parkinglot areas, grass cutting security and cleaning contracts. 12.04 Lessee shall be responsible for paying all utilities. SECTION 13 COMPLIANCE WITH LAW Lessee agrees to comply promptly with all laws and ordinances and other notices, requirements, orders, regulations and recommenda- tions (whatever the nature thereof may be) of any and all the Federal, State, County or Municipal authorities or the Board of Fire Underwriters or any insurance organizations, association or companies, with respect to the demised premises and any property appurtenant thereto. SECTION 14 SERVICES Lessee will keep in operation in the building for the use of tenants, as the same may in Lessor's judgment be necessary, elevator, heating apparatus between the first day of October of each year and the first day of May next succeeding and furnish a reasonable amount of electricity, as 'Lessor may determine necessary for lighting said premises and operating customary small business machines during ordinary business hours, reserving the right, however, in case Lessee in the judgment of Lessor, shall use electricit'~ in an extravagant or unreasonable manner, or in such volume as to be disproportionate to the use of other tenants in the demised premises, of requiring Lessee to put in meters and pay for the amount used according to the utility company's appropriate rate schedule, or in default thereof, or any non-payment, the supply to be cut off. Lessee shall keep the windows and doors of the demised premises, including those opening on corridor~;, closed during the times that the heating system is operatinu. Lessee shall comply with all reasonable rules and regulations from time to time promulgated by Lessor to conserve such service. In case of accident, strikes, inability to obtain supplies, breakdowns, repairs, renewals or improvements to the building or replacement of machinery therein, or for other cause pertaining to the building deemed sufficient by Lessor, the operation of the elevator or other machinery or apparatus may be changed or suspended. As to heat, electricity and elevator service, and any other services, Lessor. shall not be responsible or liable in any way for any failure, interruption or inadequacy in the quantity or quality or the same where caused by war, civi~ commotion, governmental restrictions, prohibitions or other regu- lations, strikes, labor disturbances, inability to obtain ade- quate supplies or materials, casualties, repairs, replacements, elevator conversion or other causes beyond Lessor's reasonable control whether similar or dissimilar to the foregoing. Lessor may discontinue all facilities, utilities and services furnished by Lessor not expressly covenanted for herein, it being under- stood that they constitute no part of the consideration for this lease. Lessor shall not, in any event, be responsible for furnishing any facility, utility, or service beyond the then safe capacity, as determined by Lessor, of the equipment or structure now in use. It is understood that Lessor shall have no obliga- tion to make any repairs except within a reasonable time after written notice to Lessor by Lessee respecting such repairs and under the terms set herebefore by this lease. SECTION 15 NOTICE OF ACCIDENT, ETC. Lessee shall give Lessor prompt written notice of any accident or breakage or defects in the wires, plumbing or heating, elevators or other apparatus. SECTION 16 RELEASE OF LESSOR Lessor shall not be held responsible for, and is hereby expressly relieved from, any and all liability by reason of any injury, loss or damage to any person or property in or about the demised premises or the building whether the same be due to fire, breakage, leakage, water flow, steam, gas, use, misuse, abuse of elevators or defects therein, hatches, openings, defective con- struction or condition anywhere in the building, failure of water supply, or light or power defects in electric wiring, plumbing or other equipment or mechanism, wind, lighting storm or any other cause whatever whether the loss, injury or damage be to the person or property of Lessee or any other person, and whether or not due to any oversight, neglect or negligence of Lessor, occurring before or after the execution of this lease. Lessee further agrees to indemnify, defend and save Lessor harmless from and against all claims by any employ~ .~r invite of Lessee made on account of such injury~ loss or ~: ~ge, including but not limited to reasonable attorney's fees ~Lnd other legal expenses. This section shall not be construed to release Lessor from any damages resulting' to Lessee caused by gross intentional acts, or willful misconduct of the building manager, officers, agents or employees. negligence, Lessor, its SECTION 17 REMEDIES LESSOR 17.01 If lessee does any of the following, which shall constitute an event of default under this Agreement: a) Shall be in default in the payment of any installment of rent for a period of ten (10) days and the Lessor has provided to Lessee by telephone, with written confirmation thereof, at least forty-eight (48) hours notice that its payment has not been received, and if Lessee does not make prompt and complete payments as are required, upon receipt of such notice; or b) Defaults in any of the covenants or conditions herein contained for ten (10) days following written notice to the Lessee of the default, and if Lessee does not remedy the default within thirty (30) days of notification of such default or diligently pursue remedy of the default; or c) Fails to maintain building up to standards which existed upon the signing of this lease. d) Abandons the demised premises or removes or attempts to remove Lessee's goods or Property therefrom other than in the ordinary course of business without having first paid to Lessor in full all rent and charges that may have become due as well as all which will become due thereafter; or e) Becomes insolvent in any sense or makes an assignment for the benefit of creditors or offers a composition or settle- ment to creditors or calls a meeting of creditors for any such purpose, or if a petition in bankruptcy or for reorganization or for an arrangement with creditors under any Federal or State act is filed by or against Lessee, or if a bill in equity or other proceeding is filed by any court for the appointment of a receiv- er, trustee, liquidator, custodian, conservator or similar offi- cial for any of Lessee's assets, or if any of the real or person- al property of Lessee shall be levied upon by any sheriff, mar- shal, or constable, provided, that any such proceeding shall not have been dismissed within sixty days (60) after the commencement of any such actions. then, and in any such event, at the sole option of Lessor; (1) The whole balance of rent and charges, whether or not payable as rent, for the entire balance of the term herein reserved and any renewal or extension thereof, or any part of such rent and charges, and also all or any costs and sheriff's, marshall's or constable's commissions, whether chargeable to Lessor or Lessee, including watchman's wages, shall be taken to be due and payable and in arrears as if by the terms of this lease said balance of rent and such other charges and expenses were on that day payable in advance; and/or (2) The term created by this lease shall terminate and become absolutely void, without notice and without any right on the part of Lessee to save the forfeiture by payment of an~ sum due or by other performance of an~ condition, term or covenant broken, and upon such termination, or also if there be no termination, a) Lessor may, without notice or demand, enter the demised premises breaking open locked doors, if necessary, to effect entrance, without liability for damages for such entry or for the manner thereof, for the purpose of distraint or execution or to take possession of the demised premises to minimize the loss by reason of Lessee's default, and to take possession of and sell under distraint the goods or chattels found upon said premises. Whether or not any rent be due or unpaid, should Lessee at any time remove, or attempt or indicate an intention to remove, the goods or chattels from the premises other than in the ordinary course of business, Lessee authorizes Lessor to follow the same for a period of ninety days after such removal or attempted or intended removal and to take possession of and cause to be sold sufficient of such goods and chattels to meet the rent and charges in arrears, as well as payable for the balance of the full term then remaining or any part thereof; and in addition to the above remedies or in connection therewith, b) Any prothonotary or attorney of any court of record may appear for Lessee in amicable actions for rent in arrears or treated as if in arrears and charges, whether or not payable as rent, and to sign for Lessee an agreement 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 Lessee 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 five percent (5%). Such authority shall not be exhausted by one 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. 17.02 After reentry or retaking or recovering of the demised premises, whether by way of termination of this lease or not, Lessor may lease said premises or any part or parts thereof to such person or persons upon such terms as may in Lessor's discre- tion seem best for a term within or beyond the term of this lease, and Lessee shall be liable for any loss of rent for the balance of the term plus the costs and expenses of reletting and balance of the term plus the costs and expenses of reletting and of making repairs and alterations to the demised premises. Fur- ther, Lessee, for itself and its successors and assigns, hereby irrevocably constitutes and appoints Lessor as Lessee'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 Lessee's obligation to pay any unpaid balance of rent due or to become due hereunder. SECTION 18 REMEDIES CUMULATIVE Ail remedies available to Lessor hereunder and.at law and in equity shall be cumulative and concurrent. No determination of this lease nor taking or recovering possession of the demised premises shall deprive Lessor of any remedies or actions against Lessee for rent, for charges or for damages for the breach of any covenant or condition herein contained, nor shall the bringing of any such action for rent, charges or breach of covenant or condi- tion, nor the resort to any other remedy or right for the recovery of rent, charges or demands for such breach be construed as a waiver of release of the right to insist upon the forfeiture and to obtain possession. No reentering or taking possession of the demised premises, or making of repairs, alterations or im- provements thereto, or reletting thereof, shall be construed as an election on the part of Lessor to terminate this lease unless written notice of such intention be given by Lessor to Lessee. The failure of Lessor to insist upon strict and/or prompt per- formance of the term, agreements, covenants and conditions of this lease or any of them, and/or the acceptance of such perform- ance thereafter shall not constitute or be construed as a waiver of Lessor's right to thereafter enforce the same strictly ac- cording to the tenor thereof in the event of a continuing or subsequent default. SECTION 19 INABILITY OF LESSOR TO DELIVER POSSESSION Lessor shall not under any circumstances be liable to Lessee for its inability to deliver possession of the demised premises to Lessee at any time either at or after the beginning of the term hereof by reason of (a) the retention of the demised premises or any part thereof by any other person; (b) the fact that the renovation of the building is not complete and ready for 'occu- pancy; or (c) any cause beyond Lessor's immediate control. The term hereof shall not be affected by Lessor's inability to deliver possession at the time fixed as the beginning of the term, but the rental shall abate until such time as the said premises are thereafter available for Lessee. SECTION 20 EXCEPTED FROM PREMISES 20.01 The space.occupied by all hallways, passageways, elevators' and other means of access and the public washrooms, although within the demised premises as described hereinabove, shall be taken to be exempted from this lease and reserved to Lessor or to the other tenants of the building and the same shall not be considered a portion of the demised premises. 20.02 Ail ducts, pipes, wires or other equipment now used in the operation of the building, or any part thereof, and any space occupied thereby, whether or not within the demised premises as described hereinabove, shell likewise be excepted and reserved from the demised premises, and Lessee shall not remove or tamper with or use the same and will permit Lessor to enter the demised premises to service, replace, remove or repair the same. SECTION 21 LEASE SUBORDINATED This lease shall be subject and subordinate to the lien of any mortgages and ground rents and other encumbrances now existing or hereafter created on or against the demised premises and/or the building of which the demised premises form a part without the necessity of any further instrument or act on the part of Lessee, provided mortgagee agrees to recognize the lease of Lessee in the event of foreclosure, but Lessee agrees upon demand of Lessor to execute, acknowledge and deliver such instruments confirming that the lease is subordinate as shall be desired by any mortgagee or proposed mortgagee or by any person holding or about to acquire a ground rent or other encumbrance. Lessee hereby appoints Lessor attorney-in-fact of Lessee irrevocably to execute, acknowledge and deliver any such instrument or instruments for and in the name of Lessee and to record the same. Notwithstanding the foregoing, the holder of any mortgage may at any time subordinate its mortgage to this lease, without Lessee's consent, by notice in writing to Lessee. SECTION 22 CONDEMNATION In the event that the building or any part thereof is'taken or condemned for a public or quasi-public use, this lease shall terminate as of the date when possession is surrendered to the condemner, and the rent reserved hereunder shall abate and cease proportionately for the balance of the term. In any such event, Lessee waives all claims for leasehold damages against Lessor and against the condemning authority or party and assigns the same, if any, to Lessor. SECTION 23 ZONING Anything herein contained to the contrary notwithstanding, this lease and all the terms, covenants and conditions hereof are in all respects subject and subordinate, to all zoning laws and ordinances affecting the demised premises and/or the building and Lessee agrees to be bound by the same. Further, Lessee does not agree or represent that any licenses or permits which may be required for the business to be carried on by Lessee in the demised premises will be granted, or if granted will be continued in effect or renewed. Any failure tb obtain such licenses or permits, or any revocation thereof, or failure to continue or renew the same, shall not release Lessee from any obligations of this lease or reduce the same, and nothing shall obligate Lessor to assist in obtaining any such permit or license. SECTION 24 BROKERS The parties represent and warrant that this lease was negotiated directly and not through or with any broker or other intermediary purporting to act either for either party. The parties agree to indemnify, protect, defend and save each other harmless from and against any and all claims, costs, damages or expenses to which each may be subjected as the result of any broker or other inter- mediary claiming to have negotiated or brought about this lease. SECTION 25 CONVEYANCE BY LESSOR Lessee agrees that on the occasion of each sale or exchange of Lessor's estate in the building, Lessee will look to each respec- tive succeeding grantee or assignee for the performance of the obligations of Lessor hereunder. Lessee further agrees that each respective grantor and assignor so selling or exchanging shall be and is hereby released and discharged from any and all liability and obligation under this lease as Lessor or otherwise, except liabilities in respect to the period up to the date of such sale or exchange. Lessee further agrees that Lessor's liability under this lease shall be limited to and include only the interests of Lessor in the building of which the demised premises are a part. SECTION 26 NOTICES Ail notices required to be given under this Agreement shall be given by registered mail, sent to the place specified below. R: LESSEE: Charliene and S.~Brian Magar_o 60~ Magaro Road Enola, Pennsylvania 17025 Thomas E. Robey 332 Bonneybrook Road Carlisle, Pennsylvania Harrisburg, PA 17103 As against Lessor the only admis~{ble evidence that notice has been given shall be a registered ~eturn receipt signed by Lessor. SECTION 27 SUCCESSORS AND ASSIGNS Ail rights and liabilities herein given to, or imposed upon, the respective parties hereto shall extend to and bind the several and respective heirs, executors, administrators, successors and assigns of said parties; and if there shall be more than one Lessee, they shall be bound jointly and severally by the terms~ covenants and agreements herein, and the word "Lessee" shall be deemed and taken to mean each and every person or party mentioned as a Lessee herein, be the same one or more; and if there shall be more than one Lessee, any notice required or permitted by the terms of this lease may be given by or to any one thereof, and shall have the same force and effect as if given by or to all thereof. No rights, however, shall inure to the benefit of any assignee of Lessee unless the assignment to such assignee has been approved by Lessor in writing as aforesaid. SECTION 28 LESSOR'S WAIVER Lessor shall, upon written request from Lessee, execute a waiver of its right to distrain upon or secure a lien against any equip- ment, machinery or other personal property acquired or leased by Lessee, if such property becomes subject to a perfected security interest by any lending institution or equipment lessor. Lesse~ shall, in its written request for this waiver, specifically enumerate the equipment, machinery or other personal property for which the waiver is requested as well as the length of time for which the perfected security interest shall be in full force a~d effect. SECTION 29 TITLES The titles appearing in connection with various sections herein are for convenience only. They are not intended to indicate all of the subject matter in the text and they are not to be used in interpreting this lease nor for any other purpose in the event of any controversy. SECTION 30 WHOLE AGREEMENT It is expressly understood and agreed by and between all the parties hereto that this lease and the riders attached hereto and forming a part hereof set forth all the promises, agreements, conditions, warranties, representations and understandings be- tween Lessor and Lessee relative to the demised premises and this leasehold, and that there are no promises, agreements, condi- tions, warranties, representations on understandings, either oral or written, between them other than as herein set forth. It is further understood and agreed that, except as herein otherwise provided, no subsequent alteration, amendment, understanding or addition to this lease shall be binding upon Lessor or Lessee unless reduced to writing and signed by them. In Witness Whereof, the parties hereto have executed this lease the day and year aforesaid. Lessor: Lessee: Charl_ie~e-~agaro (Names) Attest ~_ g.~, _ (Name/Title) Thomas E. Robey (Name/Title)- DELINQUENT TAXES AND UTILITIES FOR 413 BUCKTHORN 2000 taxes ........................................ $3,992.24 2001 County taxes .................................... 587.28 2001 City taxes ...................................... 673.94 2001 School taxes .................................. 2,435.17 Utilities owing ........................................ 0.00 TOTAL ...................... $7,688.63 DELINQUENT TAXES AND UTILITIES FOR 412 S. 14TM 2000 taxes .......................................... $193.55 2001 County taxes ..................................... 22.64 2001 City taxes ....................................... 68.77 2001 School taxes ..................................... 93.83 Utilities owing ....................................... 15.02 TOTAL ...................... $3,938.00 November 2001 rent ................................ $1,046.83 December 2001 rent ................................. 1,046.83 January 2002 rent .................................. 1,046.83 TOTAL ...................... $3,140.49 $14,767.06 EXHIBIT "B" SHERIFF'S RETURN - REGULAR .CASE NO: 2001-06965 P COMMONWEALTH OF PENNSYLVANIA: COUNTY OF CUMBERLAND POWELL O D VS ROBEY THOMAS E ET AL JASON VIORAL , Sheriff or Deputy Sheriff of Cumberland County, Pennsylvania, who being duly sworn according to law, says, the within COMPLAINT & NOTICE was served upon ROBEY THOMAS E the DEFENDANT , at 2034:00 HOURS, on the 18th day of December at 322 BONNYBROOK ROAD 2001 CARLISLE, PA 17013 THOMAS ROBEY a true and attested copy of COMPLAINT by handing to & NOTICE together with and at the same time directing His attention to the contents thereof. Sheriff's Costs: Docketing 18.00 Service 3.25 Affidavit .00 Surcharge .00 .00 21.25 Sworn and Subscribed to before me this ~['~ day of PJot/ior~ot ary /~' So Answers: R. Thomas Kline 12/19/2001 OVID INC /~eputy Sheriff SHERIFF'S ~CASE NO: 2001-06965 P COMMONWEALTH OF PENNSYLVANIA: COUNTY OF CUMBERLAND POWELL 0 D VS ROBEY THOMAS E ET AL RETURN - REGULAR JASON VIORAL Sheriff or Deputy Sheriff of Cumberland County,Pennsylvania, who being duly sworn according to law, says, the within COMPLAINT & NOTICE was served upon ROBEY KAREN D the DEFENDANT , at 2034:00 HOURS, at 322 BONNYBROOK ROAD CARLISLE, PA 17013 on the 18th day of December , 2001 by handing to THOMAS ROBEY (HUSBAND) a true and attested copy of COMPLAINT & NOTICE together with and at the same time directing His attention to the contents thereof. Sheriff,s Costs: Docketing 6.00 Service .00 Affidavit .00 Surcharge .00 .00 6.00 Sworn and Subscribed to before me this ~ d~y of .D. So Answers: R. Thomas Kline i2/i9/200i OVID INC ty- Sheriff O.D. POWELL, VS. Plaintiff THOMAS E. ROBEY and KAREN D. ROBEY, Defendants IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA : NO. 01-6965 : CIVIL ACTION - LAW PKAECIPE To the Prothonotary of Cumberland County: Please enter judgment, by default, in favor of Plaintiff, O.D. Powell, and against Defendants Thomas E. Robey and Karen D. Robey, in the amount of $14,767.06 for their failure to file an Answer or otherwise plead to the Complaint in this case within the time allowed by law. A copy of the notice required by Pa. R.C.P. 237 is attached hereto and it is hereby certified that said notice was mailed to Thomas E. Robey and Karen D. Robey on January 28, 2002. DATED: YOFFE & YOFFE, P.C. NORMAN M. YOFFE, ESQUIRE Attorney for Plaintiff 214 Senate Avenue, Suite 203 Camp Hill, PA 17011 (717) 975-1838 Attorney ID NO. 07135 powel 1 \magaro\de fault \praecipe O.D. POWELL, Plaintiff THOMAS E. ROBEY and KAREN D. ROBEY, Defendants IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 01-6965 CIVIL ACTION - LAW NOTICE TO: Thomas E. Robey, 322 Bonneybrook Road, Carlisle, PA 17013 DATE: January 28, 2002 IMPORTANT NOTICE YOU ARE IN DEFAULT BECAUSE YOU HAVE FAILED TO ENTER A WRITTEN APPEARANCE PERSONALLY OR BY ATTORNEY AND FILE IN WRITING WITH THE COURT YOUR DEFENSES OR OBJECTIONS TO THE CL~%IMS SET FORTH AGAINST YOU. UNLESS YOU ACT WITHIN TEN (10) DAYS FROM THE DATE OF THIS NOTICE, A JLrDGMENT MAY BE ENTERED AGAINST YOU WITHOUT A HEARING AND YOU MAY LOSE YOUR PROPERTY OR OTHER IMPORTANT RIGHTS. YOU SHOULD TAKE THIS NOTICE TO A LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER OR CAAYNOT AFFORD ONE, GO TO OR TELEPHONE THE FOLLOWING OFFICE TO FIND OUT WHERE YOU CAN GET LEGAL HELP: Cumberland County Bar Association 2 Liberty Avenue Carlisle, PA 17013 (717)249-3166 OR (800)990-9108 NOTICIA IMPORTANTE TO: Thomas E. Robey, 322 Bonneybrook Road, Carlisle, PA 17013 FECHA DE NOTICIA: January 28, 2002 USTED NO HA COMPLIDO CON EL AVISO ANTERIOR PORQUE HA FALTADO EN TOMAR MEDIDAS REQUERIDAS RESPECTO A ESTE CAS0. SI USTED NO ACTUA DENTRO DE DIEZ (10) DIAS DESDE LA FECHA DE ESTA NOTICIA, ES POSIBLE QUE UN FALLO SERIA REGISTKADO CONTRA USTED S~IN UNA AUDIENCIA Y USTED PODRIA PERDER SU PROPIEDAD O OSTROS DERECHOS IMPORTANTES. USTED DEBE LLEVAR ESTA NOTICIA A SU ABOGADO EN SEGUIDA. SI USTED NO TIENE ABOGADA O NO TIENE CON QUE PAGAR LOS SERVICIOS DE UN ABOGADO, VAYA O LLAME A LA OFICINA ESCRITA ABAJO PARA AVERIGUAR A DONDE USTED PUEDE OBTEMBER LA AYUDA LEGAL. Cumberland County Bar Association 2 Liberty Avenue Carlisle, PA 17013 (717)249-3166 OR (800)990-9108 YOFFE &~x~FFE, P.~ Attorney for Plaintiff 214 Senate Avenue, Suite 203 Camp Hill, PA 17011 (717) 975-1838 Attorney ID No. 07135 This communication is from a debt collector and is an attempt to debt. Any information obtained from you will be used for debt purposes. powell\magaro~10day collect a collection O.D. POWELL, VS. Plaintiff THOMAS E. ROBEY and KAREN D. ROBEY~ Defendants IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 01-6965 CIVIL ACTION - LAW NOTICE TO: Karen D. Robey, 322 Bonneybrook Road, Carlisle, PA 17013 DATE: January 28, 2002 IMPORTANT NOTICE YOU ARE IN DEFAULT BECAUSE YOU HAVE FAILED TO ENTER A WRITTEN APPEARANCE PERSONALLy OR BY ATTORNEY AND FILE IN WRITING WITH THE COURT YOUR DEFENSES OR OBJECTIONS TO THE CLAIMS SET FORTH AGAINST YOU. UNLESS YOU ACT WITHIN TEN (10) DAYS FROM THE DATE OF THIS NOTICE, A JUDGMENT MAY BE ENTERED AGAINST YOU WITHOUT A HEARING AND YOU MAy LOSE YOUR PROPERTY OR OTHER IMPORTANT RIGHTS. YOU SHOULD TAKE THIS NOTICE TO A LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER OR CANNOT AFFORD ONE, GO TO OR TELEPHONE THE FOLLOWING OFFICE TO FIND OUT WHERE YOU CAN GET LEGAL HELP: Cumberland County Bar Association 2 Liberty Avenue Carlisle, PA 17013 (717)249-3166 OR (800)990-9108 NOTICIA IMPORTANTE TO: Karen D. Robey, 322 Bonneybrook Road, Carlisle, PA 17013 FECHA DE NOTICIA: January 28, 2002 USTED NO MA COMPLIDO CON EL AVISO ANTERIOR PORQUE HA FALTADO EN TOMAR MEDIDAS REQUERIDAS RESPECTO A ESTE CASO. SI USTED NO ACTUA DENTRO DE DIEZ (10) DIAS DESDE LA FECHA DE ESTA NOTICIA, ES POSIBLE QUR UN FALLO SERIA REGISTRADO CONTRA USTED SIN UNA AUDIENCIA Y USTED PODRIA PERDER SU PROPIEDAD 0 OSTROS DERECHOS IMPORTANTES. USTED DEBE LLEVAN ESTA NOTICIA A SU ABOGADO EN SEGUIDA. SI USTED NO TIENE ABOGADA 0 NO TIENE CON QUE PAGAR LOS SERVICIOS DE UN ABOGADO, VAYA 0 LLAME ,A LA OFICINA ESCRITA ABAJO PARA AVERIGUAR A DONDE USTED PUEDE OBTEMBER LA AyLrDA LEGAL. Cumberland County Bar Association 2 Liberty Avenue Carlisle, PA 17013 (717)249-3166 OR (800)990-9108 This communication is from a debt. Any information purposes. powell\magaro\10day2 YOFFE~ P.C. ~NO~M7 YOFFE, E~QUIRE - Attorney for Plaintiff 214 Senate Avenue, Suite 203 Camp Hill, PA 17011 (717) 979-1838 Attorney ID No, 07135 debt collector and is an attempt to collect a obtained from you will be used for debt collection © O.D. POWELL, Plaintiff THOMAS E. ROBEY and KAREN D. ROBEY, Defendants IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 01-6965 CIVIL ACTION - LAW AFFIDAVIT OF NONMILIT~RY SERVICE To the best of the plaintiff's and the undersigned's knowledge information and belief, defendants are not in the military service as defined and covered by 50 U.S.C.A. Section 501 et seq. YOFFE & YOFFE, P.C. Norn~A~. Yoffe, Esquire Attorney for Plaintiff 214 Senate Avenue, Suite 203 Camp Hill, PA 17011 (717) 975-1838 Attorney ID No. 07135 powel 1 ~magaro\de fault \nonmilitary