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HomeMy WebLinkAbout04-2638David J. Lanza I.D. No. 55782 2157 Market Street Camp Hill, Pennsylvania 17011 (717) 737-3775 Attorneys for Plaintiffs HARRY AND SUZY GROSSMAN, Plaintiffs VOODOO PARK, INC., MICHAEL DeCAVALCANTE and ERIC MONTGOMERY, Defendants TO: Voodoo Park, Inc., 6~ and Water Streets, New Cumberland, PA, 17070 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. O~/- 2' C 5~ CIVIL ACTION - LAW IN EJECTMENT NOTICE UNDER RULE 2973.2 OF JUDGMENT AND EXECUTION A judgment for possession of real property has been entered against you and in favor of the Plaintiff without prior notice and hearing based on a confession of judgment contained in a promissory note or other document allegedly executed by you. The Sheriff may remove you from the property at any time after thirty (30) days after the date on which this Notice is served on you. You may have legal rights to defeat the judgment or to prevent your 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 OR CANNOT AFFORD ONE, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW TO FIND OUT WHERE YOU CAN GET LEGAL HELP. Court Administrator Cumberland County Courthouse One Courthouse Square Carlisle, Pennsylvania 17013 (717) 240-6200 David J. Lanza D~'vid J. Lanza I.D. No. 55782 2157 Market Street Camp Hill, Pennsylvania 17011 (717) 730-3775 Attomey for Plaintiffs HARRY AND SUZY GROSSMAN, : : Plaintiffs : VOODOO PARK, INC., : Defendant : IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 0.,o;Ct CIVIL ACTION LAW IN EJECTMENT CONFESSION OF JUDGMENT IN EJECTMENT Pursuant to the authority contained in the warrant of attorney, 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 Plaintiffs and against the Defendants for possession of the real property situate at 6th and Water Streets, New Cumberland, Cumberland County, Pennsylvania 17070. Respectfully submitted, By: David J. Lanza Attorney I.D. No. 55782 2157 Market Street Camp Hill, PA 17011 Telephone (717) 730-3775 Attorney for Plaintiffs 56-1 D~vid J. Lanza I.D. No. 55782 - 2157 Market Street Camp Hill, Pennsylvania 17011 (717) 730-3775 Attorney for Plaintiffs HARRY AND SUZY GROSSMAN, Plaintiffs VOODOO PARK, INC., Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 0~. CIVIL ACTION - LAW IN EJECTMENT COMPLAINT PURSUANT TO Pa.R.C.P. 2971(a) FOR CONFESSION OF JUDGMENT FOR POSSESSION AND NOW, this day of June 2004, comes the Plaintiff, HARRY AND SUZY GROSSMAN, by and through its undersigned attorney, David J. Lanza, and files this Complaint, and in support thereof avers as follows: 1. The Plaintiffs, HARRY AND SUZY GROSSMAN, are adult individuals with an address at 275 Hillside Drive, New Cumberland, Pennsylvania 17070. 2. The Defendant, VOODOO PARK, INC., is a business entity of undetermined nature with a place of business at 6th and Water Streets, New Cumberland, Cumberland County, Pennsylvania 17070. 3. The Defendant, MICHAEL DeCAVALCANTE, is an adult individual with an address at 2926 Lincoln Street, Camp Hill, Cumberland County, Pennsylvania 17011. 4. The Defendant, ERIC MONTGOMERY, is an adult individual with an address at 625 Allen Street, Camp Hill, Cumberland County, Pennsylvania 17011. 5. On or about November 6, 2002, Plaintiffs and Defendant entered into an Agreement of Lease ("Lease") for the 11,480 square feet of the premises (including sections B, D and E) located at 6th and Water Streets, New Cumberland, Cumberland County, Pennsylvania 17070, a true and correct copy of which is attached hereto as Exhibit "A." 7. 8. 9. Said Lease has not been assigned by Plaintiffs. No judgment on the Lease has been entered in any jurisdiction. Defendants have failed to pay rent in a timely manner since the inception of the Lease, The aforesaid Lease requires Defendants to pay unto Plaintiff the sum of Two Thousand Eight Hundred Forty-One and 30/100 Dollars ($2,841.30) per month from November 6, 2002 through November 6, 2003, with subsequent amounts due as set forth in §2 of Exhibit "A." 10. Defendants have failed to pay any rent at all since March, 2004. 11. Defendant's rental payments have repeatedly been late throughout the term of this Lease. 12. As a result of Defendants' failure to make the monthly rental payments, the remaining monthly payments (through November 2007) have become immediately due and payable. 13. Pursuant to §13 of the aforesaid Lease, Defendants are required to reimburse Plaintiff for Plaintiff's attorney fees in the amount of 15% of the balance due. 14. There is justly due and owing to the Plaintiff from the Defendants on account of the aforesaid breach the sum of One Hundred Ninety-one Thousand One Hundred Fifty-nine and 93/100 Dollars ($161,387.36), calculated as follows: Unpaid rent from through November 6, 2007 Fifteen percent (15%) attorney fees TOTAL 15. $140,336.84 $ 21,050.53 $161,387.36 Plaintiff has demanded payment from the Defendants, but Defendants have neglected and refused, and continue to refuse, to pay the same or any part thereof. 16. Plaintiffs are entitled to judgment against Defendant Voodoo Park, Inc. in the amount of $148,654.57. 17. Plaintiffs are entitled to immediate possession of the leased premises at 6th and Water Streets, New Cumberland Borough, Cumberland County, Pennsylvania 17070. Wherefore, Plaintiffs demand judgment against Voodoo Park, Inc. for possession of the premises at 6t~ and Water Streets, New Cumberland Borough, Cumberland County, Pennsylvania 17070. Respectfully submitted, By: David J, Lanza Attorney I.D. No. 55782 2157 Market Street Camp Hill, PA 17011 Telephone (717) 730-3775 Attorneys for Plaintiffs 56-1 VERIFICATION I, HARRY GROSSMAN, vedfy that the statements made in this Complaint are true and correct to the Pest of my knowledge, information and belief. I understand that false statements made herein are made subject to the penalties of 18 Pa. C.S.A {4904, relating to unswom falsification to authorities. Date: :~ Grossman - COMMERCIAL LEASE THIS COMMERCIAL LEASE, made this/ 'Y/'/~¢~*=''''- day of~'l/'~/c~l/ , 2002, between Harry and Suzy Grossman, (hereinafter sometimes referred to as "Lessor") and Voodoo Park, Inc., a registered Pennsylvania Corporation (hereinafter sometimes referred to as "Lessee"). 1. PREMISES. WITNESSETH: The Lessor hereby leases to the Lessee 11,480 square feet of the first floor of the building depicted on Exhibit "A", which portion comprises sections B, D, and E, together with a proportionate amount of parking spaces, owned by Lessor and situate at 6u~ and Water Streets, Borough of New Cumberland, Cumberland County, Pennsylvania. To have and to hold the same for a five (5) year term commencing on November '~ 2002, and ending ~, ...... '., 2007, with rent being payable during such five (5) year term as follows: /VoV C, ~ Monthly Year1 $ 2,841.30 ~/-~-°~ _ /t-~_o, Year2 $ 2,927.40 ,' ~ ~ '° ~ r ,.- ~-~-~ Year 3 $ 3,013.50 Year 4 $ 3,099.60 Year 5 $ 3,195.27 The rent due hereunder shall be due and payable in advance with the first month's rent being due as of October 30th, 2002, and each monthly installment thereafter being due in advance on the first day of each calendar month of the term. For any installment not received by Lessor by the rdth day of the calendar month, Lessee shall pay a late charge of five (5%) percent of the amount due. Lessee shall have the option to renew'this Lease for an additional five (5) year term provided that Lessee provides written notice no less than one (1) year prior to the expiration of this Lease. The rent shall increase three percent (3%) per year during the option period with the initial option year's rent equalings,S3,290.93 per month. Lessee also maintains the option to expand into sections C and E at the rate 3.15 per square foot dudng the initial term of this Lease. Lessee agrees to reimburse landlord for any marginal increase in Lessor's insurance premiums due to Lessee's use of the premises. 3. PLACE OF PAYMENT. The rent payable by Lessee hereunder shall be paid to Lessor at 275 Hillside Drive, New Cumberland, Pennsylvania 17070, or at such other address as the Lessor may request in writing. All payments shall be effective when actually received by Lessor. 4. TAXES, UTILITIES, MAINTENANCE, AND INSURANCE. The Lessee shall pay for the cost of sewer rent, telephone, electricity, water, trash removal, janitorial services, HVAC repairs and interior repairs for the Leased Premises. The Lessee shall pay for the cost and fines for not performing snow removal and lawn or grounds maintenance excluding costs and/or fines associated with tree trimming or removal. All payments to be made by the Lessee under this Paragraph 4 shall be in addition to the rental called for above. Lessor will pay for real estate taxes and structural repairs. 5. USE OF LEASED PREMISES. The Leased Premises shall be used for a recreation/sports center and for no other purposes withoQt the express wdtten consent of Lessor in Lessor's sole discretion. 6. MAINTENANCE AND REPAIR. Lessee shall maintain the Leased Premises in a state of good repair at its own expense consistent with and as limited by Paragraph 4 and shall surrender the Leased Premises in as good condition as they shall be in as of the commencement of the term of this lease, except for ordinary wear and tear and damages caused by tire, storm, or other natural disasters. All damages done to the Leased Premises other than damage caused by ordinary wear and tear, tire, storm, or other natural disaster shall be repaired at the cost of the Lessee. 2 7. CONDITION OF PREMISES ON SURRENDER. The Leased Premises shall be surrendered in a clean condition by the Lessee at the termination of the lease. 8. INSURANCE. Lessee hereby covenants and agrees at all times during the term of this lease to obtain, maintain, and keep in force general public liability insurance against claims for personal injury, death, or property damage occurring in, on, or about the premises or adjacent to the premises in the following amounts: (a) (b) Bodily Injury (including completed operations and products liability)... $1,000,000.00 each occurrence. Property Damage ·.. $1,000,000.00 each occurrence and $1,000,000.00 annual aggregate or a combined single limit of $1,000,000.00. Liability policy will include personal injury protection. Lessee agrees that all of the above noted insurance shall be non-cancelable without ten (10) days written notice to Lessor. Lessee further covenants and agrees that the insurance required to be carded herein shall be placed with insurance companies licensed to do business in Pennsylvania as shall be approved by Lessor and that Lessee shall deliver certificates of such insurance to Lessor and all renewals thereof throughout the term of this lease if so requested by Lessor. Lessee shall deliver to Lessor a copy Of the paid receipt for each insurance premium paid within one week of payment throughout the term of this lease. Lessee shall name Lessor as an additional insured on each of the above referenced policies. shall maintain hazard insurance on the contents of the premises. .~..~ ..Z.~'~ 9. LIABILITY TO THIRD PARTIES. Lessee agrees to be responsible for and to relieve or indemnify Lessor from all liability by reason of any damage or injury to any person or thing which may arise on the Leased Premises whether such damage or injury be caused by or result from the negligence of the Lessee, its servants or agents. 3 Lessee agrees to indemnify and hold harmless Lessor,~rom all liability resulting from any environmental issue, including dumping of hazardous materials and~or waste to the extent Lessee and not Lessor is responsible for the problem. Lessee war~ants that Lessee shall comply fully with all federal, state and local environmental laws and regulations. Lessee hereby warrants that Lessee shall defend against and reimburse Lessor for any claim, by whomever asserted, related to any.:l~mvironmental issue, whether or not such issue adses from the intentional or negligent actions of Lessee. Failure by Lessee to comply with any federal, state or local law and/or regulation, including pe/mit requirements, shall constitute grounds for immediate eviction from the premises. The remedies and provisions contained in this section shall be in addition to, and shall not be limited by, the provisions of §27. 10. DAMAGE TO OR DESTRUCTION OF LEASED PREMISES. If the Leased Premises shall be damaged or rendered untenable as determined by Lessor, in whole or in part, through no fault of Lessee, the Lessor shall have the dght to retain any insurance proceeds payable to Lessor and terminate this lease or, within forty-five (45) days after the date of said damage or destruction, at the election of Lessor, in Lessor's sole discretion, to commence to repair or replace the Leased Premises, so that the same shall be completed within six (6) months thereafter. The obligation of Lessee to make rental payments for that podion of the Leased Premises which are untenable dudng the repair period by Lessor, shall be discontinued until repairs are completed. Lessor shall have no dght to terminate this lease in the event the damage or destruction to the Leased Premises is de minimis. 11. UNLAWFUL ACTIVITIES. Lessee shall not carry on any unlawful or immoral activity in or about the Leased Premises, and shall not carry on any activity which will endanger the building from fire or cause a forfeiture of any fire insurance that the Lessor has or may hereafter have on said building. 12. DEFAULT; REMEDIES. (a) If Lessee shall fail to pay any installment of rent promptly on the day when the same shall become due and payable hereunder, (b) if Lessee shall fail to promptly keep and perform any other affirmative covenants of this lease, stdctly in accordance with the terms of this lease; (c) if Lessee fails to take possession of the Leased Premises within ten (10) days after possession is tendered; (d) if Lessee 4 discontinues its business in the Leased Premises; or if an action for appointment of a receiver or trustee of Lessee's property is filed against Lessee, or Lessee executes an ,~signment for the benefit of creditors or any govemmental officer or agency pursuant to statutory authority for the dissolution or liquidation of the Lessee takes possession of Lessee's property; or (e) if Lessor detern3ines Lessee is removing, attempting to remove, or manifesting an intention to remove Lessee's goods or property from the Leased Premises (except in the ordinary and usual course of business) without having first paid Lessor all the rent for the balance of the lease term; then. and in any such event, and as often as any such event shall occur, Lessor may (i) declare the lease in default and the said term ended, and enter into said Leased Premises, using such force as m_ay be nec~ ssary, and to repossess and enj(~y said Leased Premises as in the Lessor's former estate; (ii) accelerate the payment of all rent due hereunder for the balance of the term of the lease as liquidated damages for Lessee's default and not as a penalty; and (iii) exercise any and all other fights available to Lessor hereunder or otherwise available at law or in equity. Time shall be deemed to be of the essence for the fulfillment of Lessee's covenants and duties in this lease. 13. CONFESSION OF JUDGMENT FOR MONEY DAMAGES. In addition to the remedies provided for in paragraph 12, if Lessee defaults hereunder, the Le~'~ee hereby empowers the Prothonotary or any attorney of any court of record within the Commonwealth of Pennsylvania or elsewhere to appear for the Lessee, and with or without complaint filed, to confess judgment against the Lessee and in favor of the Lessor, or any other holder of this lease, for the sums owed by the Lessee or for any default on the part of the Lessee, pursuant to the terms of this lease, with unpaid interest thereon, costs of suit and attomey's fe~';~m~-~ing~to fifteen (15%~_?'.~_~_.,'~rcent of the amount owed by Lessee, upon which judgment or judgments one or more executions may issue forthwith, upon failure to comply with any of the terms or conditions of this lease. Lessee hereby forever waives and releases all errors in said proceedings, waives stay of execution, the right of inquisition and the extension of time of payment. An affidavit filed by any authorized representative of Lessor Shall be conclusive evidence by Lessee's default hereunder. No single exercise of the foregoing power to confess judgment shall be deemed to exhaust, the power whether or not such exercise shall be held by any court to be invalid, voidable or void, but judgment may be confessed as aforesaid from time to time as often as any of said rent or other charges shall fall due or be in arrears, and such powers may be exercised as well after the expiration of the original term and dudng any extension or renewal of this lease. 5 Lessee hereby warrants that its annual income exceeds $10,089.00. 14. CONFESSION OF JUDGMENT FOR POSSESSION. If Lessee violates any terms in this lease, either dudng the original term of this lease or any renewal or extension thereof, and also when, and as soon as the term hereby created or any extension thereof shall have expired, it shall be lawful for any attomey, as attorney for Lessee, to'sign an agreement and file and enter in any competent court an amicable action for judgment in ejectment against Lessee and, for and against all persons claiming under Leased Premises for which this lease shall be sufficient warranty. whereupon, if Lessor so desires a writ of possession and, provided that if for any reason after such action~':' shall have been commenced, and same shal be determ ned and possess on of the Leased Pram sas hereby~!~i: demised remains in or thereby be restored to Lessee. Lessor shall have the right upon any future default or defaults or upon the termination of this lease as herein set forth, to bring one or more amicable action or actions as herein set forth, to recover possession of said Leased Premises or any part thereof. In any amicable action of ejectment, Lessor shall first cause to be filed an affidavit made by it or by someone for it and on its behalf, setting forth the facts necessary to authorize the entry of judgment, of which facts such affidavit shall be conclusive evidence, and if a true copy of this lease is filed in such action, it shall not be necessary to file the original, as a warranty of attorney, notwithstanding any rule of court, custom or practice to the contrary. The remedies of Lessor set forth herein shall be cumulative of all rights and remedies available hereunder or otherwise available at law or equity. No waiver by either party at any time, express or implied, of any breach of any provisions of this lease shall be deemed a waiver of a breach of any other provision of this lease or a con~ent to any subsequent breach of the same or any other provision. Lessee hereby warrants that its annual income exceeds $10,000.00. 6 15. FIXTURES AND ALTERATIONS. All alterations, improvements, additions or fixtures, whether installed before or after the execution of the Leased Premises at the expiration or'-~°°ner~jl~ermination of this Lease this Lease shall remain upon and become the property of the Lessor, unless the Lessor, prior to the termination of the Lease, gives written notice to the Lessee to remove the same in which eVent the Lessee will remove such alterations, improvements and additions and restore the Leased Premises to the same good order and condition in which they now are in. Should the Lessee fail to do so, the Lessor may do so, and collect the cost and expense thereof from the Lessee as additional rent. 16. INSPECTION AND ACCESS. Lessor shall have the right at all reasonable times to go upon and inspect the Leased Premises and every part thereof. Lessor shall also have the right during the last six (6) months of the lease term to show the Leased Premises to any prospective tenant at reasonable times during office business hours. 17. FAILURE TO GIVE POSSESSION. The Lessor shall not be liable to the Lessee for any damage which may be caused to the Lessee by the failure of the Lessor to give possession of the Leased Premises at the time agreed upon, if said failure is not due to any fault on the Lessor's port. 18. ASSIGNMENT AND SUBLET. This agreement may not be assigned without the written consent of the Lessor in Lessor's sole discretion. 19. SUBORDINATION. This lease is and shall be subject and subordinate to the lien of any mortgage which Lessor has placed or may place upon the Leased Premises and to all terms, conditions, and previsions thereof, to all advances made, and to any renewals, extensions, modifications, or replacements thereof. The Lessee 7 agrees to execute such reasonable documents as be necessary to insure compliance with the subordination and further agrees to execute upon request of the Lessor an estoppeheertificate certifying that this lease is in full force and effect, the date to which rent and other charges hereunder have been paid and other factual matters reasonably required by Lessor. 20. EMINENT DOMAIN. ..~' If the whole or any part of the Leased Premises shall be taken for any public or quasi-public use under any statute or by dght of eminent domain or by pdvate purchase in lieu thereof, Lessor shall have the right to cause the rental payments to abate proportionately, or to terminate the lease in its entirety, at the sole discretion of Lessor. In either such event, Lessee hereby assigns, transfers, and releases unto Lessor all damages, rights or claims of Lessee excepting only tenant's improvements, trade fixtures, additions, moving expenses and Lessee's actual relocation expenses. Except as aforesaid, all such condemnation proceeds shall be the property of Lessor. Lessor shall have no right to terminate the within lease in the event the condemnation of the Leased Premises is de minimis. 21. ALTERATIONS. No alterations shall be made in or to the Leased Premises without the prior wdtten consent of the Lessor, in Lessor's sole discretion, which shall not be unreasonably withheld: No alterations shall be made except those agreed upon in the August 15~h, 2002 lease proposal attached hereto as Exhibit "B" 22. SIGNS. No signs, lights, or other attachments or fixtures shall be placed on the extedor of the Leased Premises, or in the intedor of the Leased Premises and visible from outside the Leased Premises, unless all such items comply with all New Cumberland ordinances and Lessor provides prior written approval. 23. HOLDING OVER. In the event Lessee continues to occupy the Leased Premises after the last day of the term, and Lessor elects to accept monthly rent therefor, a tenancy from month to month shall be created and not for any longer pedod. If Lessee continues to occupy the Leased Premises after the last day of the term and Lessor does not elect to accept monthly rent hereunder, Lessor shall be entitled to charge Lessee 150% of 8 the most recent monthly rent due hereunder until such time as Lessee shall surrender the Leased Premises to Lessor. 24. SUCCESSORS AND ASSIGNS. This lease agreement shall be binding on and insure to the bene~t of the successors and assigns of the parties hereof. 25. NOTICES. All notices, approvals, and other communications required by this lease shall be in writing and not be effective unless hand delivered or sent postage prepaid by United States registered or certified mail, return receipt requested to the following address: Harry Grossman 275 Hillside Ddve New Cumbedand, PA 17070 Voodoo Park, inc. 6~h and Water Streets New Cumberland, PA 17070 or to such other address as either party may designate by notice given from time to time. Notices, approvals and other communications shall be effective upon receipt or refusal by the party to which such notice, approval or other communication is intended. 26. BROKERAGE. Lessor and Lessee warrant to each other that no broker was instrumental or involved in any way in negotiating this transaction except CIR. Any fees or commissions to be paid to CIR shall be paid by Seller. 27. HAZARDOUS SUBSTANCES. (A) Lessee shall not use the Demised Premises to treat, produce, store, handle, transfer, process,., transport, dispose of or otherwise release any Hazardous Substances (hereinafter defined) on, from or affecting the Demised Premises which has caused, is causing or could cause Contamination (hereinafter defined). Lessee has not received any summons, citation, notice of violation, administrative order, directive, letter or other communication, wdtten or oral, from an~ governmental or quasi-governmental authority concerning any intentional or unintentional action or omission on the part of Lessee with regard to Hazardous Substances on, from or affecting the Demised Premises. (B) Lessee covenants that the Demised Premises shall be kept frae of any Hazardous SubStance which is causing or could cause contamination and shall not be used to generate, manufacture, refine, ,~tr. ansport, treat, store, handle, dispose of, transfer, produce' or process any Hazardous Substance which is -~causing or could cause contamination. Lessee shall not cause or permit as a result of intentional or unintentional act or omission on the part of Lessee or any subtenant the installation of any Hazardous Substance in or on the Demised Premises or a release of any Hazardc~us Substance onto or from the Demised Premises or suffer the presence of any Hazardous Substance on the Demised Premises which, in any such case, is causing or could cause contamination. The temporary storage of waste oil, in compliance with DEP and EPA regulations, shall be permitted under this lease. Lessee may use motor oils provided the same are propedy removed by licensed haulers. (C) Lessee shall comply with and ensure compliance with all applicable federal, state and local laws, ordinances, rules and regulations with respect to Hazardous Substances and shall keep the Demised Premises free and clear of any liens imposed pursuant to such laws, ordinances, rules and regulations. If Lessee receives any notice from any governmental authority with regard to Hazardous Substances on, from or affecting the Demised Premises, Lessee shall (i) immediately notify Lessor and any other person or governmental or quasi-govemmental authority that Lessee is required to notify pursuant to any applicable law at such time as Lessee is aware of a release or a threatened release of a Hazardous Substance on, from or affecting the Demised Promises; (ii) immediately notify the Lessor at such time as an environmental investigation or dean-up proceeding is instituted by any person in connection with the Demised Premises; (iii) fully comply with and assist such environmental investigation and dean-up proceeding; (iv) promptly execute and complete any Remedial (hereinafter defined) actions necessary to ensure that no environmental liens or encumbrances are levied against or exist with respect to the Demised Premises; and (v) promptly, upon written request of Lessor, provide Lessor from time to time with an environmental site assessment or report, in form and substance satisfactory to Lessor. Lessee shall conduct and complete all investigations, studies, sampling and testing and all Remedial, romoval or other actions necessary to clean up and remove all Hazardous Substances on, from or'affecting the Demised Premises in accordance with all applicable federal, state and local laws, ordinances, rules, rogulations and policies, to the satisfaction of Lessor. -If Lessee shall fail to take such action, Lessor may make advances or payments towards 10 performance or satisfaction of the same, but shall be under no obligation to do so; and all sums so advanced or paid, including all sums advanced or paid in connection with any ju~iicial or administrative investigation or proceeding relating thereto, including, without limitation, reasonable attorney's fees, fines or penalty payments, shall be immediately repayable by Lessee to Lessor and shall bear interest at the Prime Rate hereinbefore established from the date advanced or paid by Lessor, until the date paid by Lessee to Lessor, and all sums so advanced shall be considered rent. .., (D) For the purpose of this Addendum, "HazardOUs Substances" shall include,, without limitation, any flammable explosives; radioactive materials; hazardous materials; hazardous wastes; hazardous or toxic substances; hazardous or toxic pollutant or related materials; asbestos or any matedal containing asbestos; or any other substance, mixture, waste, compound, matedal,.element, product or matter as defined by any federal, state or local environmental law, ordinance, rule or regulation, including, without limitation, the Comprehensive Environmental Response, Compensation and Liability Act of 1980, as amended (49 U.S.C. Sections 1801, et seq.), the Resource Conservation and Recovery Act (42 U.S.C. Sections 9601, et see.), the Clean Streams Law, as amended (35 P.S. Sections 691.101 et seo.), the Solid Waste Management Act, as amended (35 P.S. Sections 6801.101, et see.), and in the regulations adopted and publications promulgated pursuant thereto at any time. (E) Lessee agrees to defend, indemnify and hold Lessor harmless from and against any losses, expenses, liabilities and claims adsing from any breach or default by Lessee of the representations or obligations under this lease, including, without limitation, reasonable attorney's fees. Nothing herein shall create liability on the part of Lessee for any conditions or contamination that Lessee did not cause and to which Lessee did not contribute. (F) The obligations and liabilities under this section shall survive the termination of this lease. (G) For the purposes of this section, the term "contamination" shall mean the uncontained presence of Hazardous Substances on the Demised Premises or adsing from the Demised Premises which may require Remedial action under applicable law. (H) The term "Remedial" shall mean, without limitation, (i) clean-up or removal of Hazardous Substances; (ii) such actions as may be necessary to monitor, assess or evaluate the release or threatened release of Hazardous Substances; (iii) the proper disposal or release of Hazardous Substances; (iv) the 11 taking of such other actions as may be necessary to prevent, minimize or mitigate the damages caused by a release or threatened release of hazardous substances to the public health or welfare or to the environment. 28. CAPTIONS. -.C' The captions appearing on the lease are inserted 0nly as a matter of convenience and in no way define, limit, construe, or describe the scope of such articles of this lease or in any way effect this lease. 29. PENNSYLVANIA LAW. The terms of this lease shall be interpreted in accordance with Pennsylvania law and shall be litigated in Cumberland County, Pennsylvania. 30. JOINT AND SEVERAL LIABILITY. Each individual signing this lease shall bear joint and several liability for all sums due, including all · rental payments, interest, attomey fees and damages, if any. 31. FULL POWER AND AUTHORITY. The undersigned represent and warrant that they have full power and authority to execute this lease on behalf of Lessor and Lessee and to legally bind Lessor and Lessee to the terms thereof. 32. INSPECTION. It is understood that Lessee has inspected the property or hereby waives the right to do so, and has agreed to lease it as a result of such inspection and because of or reliance upon any representation made by the Lessor or any partner or employee of Lessor. Lessee has agreed to lease it in its present condition unless otherwise specified herein. IN WITNESS WHEREOF, the parties have caused this lease to be executed the day and year first above whetteR. 12 LESSOR: BY:,~'~an - ~zy Grossman LESSEE: Voodo~ n~c~~''~;- /162895 13 GUARANTY AGREEMENT November _o 2002 The Undersigned, Michael DeCavaleantc and Eric Montgomery individually and jointly, hereby unconditionally agree to make prompt payment of all obligations, indebtedness and liabilities (as limited hereunder) due Harry and Suzy Grossman hereinafter called "Lessor", of any kind, whether now existing or hereafter arising, due or which may become due, whether by ascelera~tn or otherwise, absolute or contingent, joint or several, direct or indirect, secured or unsecured by Voodoo Park, Inc. ("Lessee") a registered Pennsylvania Corporation, hereinafter called "Lessee", in connection with the Lease for real estate situate at 6m and Water Streets, New Cumberland, PA, ~ill such obligations being~hereinat~r further described and collechvely called the "Liabilities", and the Undersigned agree(s) to pay all reasonable expenses (including reasonable attorney's fees and legal expenses) paid or incurred by thc Lessor in endeavoring to collect the Liabilities, or any part hereof, whether or not bankruptcy has been declared, and in enforcing this Guaranty Agreement. The Liabilities shall be limited to no more than six (6) months rent as defined in the Lease agreement between Voodoo Park, Inc. and Lessor. The Undersigned hereby represent that the Lessee has the ability to make the monthly rental payments as defined in the Lease as well as comply with all other obligations. The Undersigned hereby waive all notices of any character whatsoever with respect to this Guaranty Agreement and the Liabilities of the Lessee for which the Guaranty Agreement has been executed, including but not limited to notice of the acceptance hereof and reliance hereon except notice of default by the Lessee. This Guaranty Agreement shall in all respects be a continuing, absolute and unconditional one, and shall remain in full force and effect (notwithstanding without further limitation, the death, incompetency or dissolution of any of the Undersigned or that at any time or from time to time all Liabilities may have been paid in full). Lessor may recover the entire amount of the obligations from the Undersigned, or any of them. Lessor has no obligation to pursue the Lessee or to pursue all of the Undersigned. Lessor may release any of the Undersigned or the Lessee while still pursuing recovery against the remaining Undersigned party or parties for the full amount. Upon default of the Borrower, atter notice to the Undersigned and failure to cure, the Undersigned, individually and jointly, do hereby authorize and empower any prothonotary or clerk or attorney of any court of record of Pennsylvania or elsewhere, to appear for and confess judgment against any or alt of the Undersigned and in favor of Lessor for the total liability of the Undersigned as set forth herein together with interest thereon, with or without declaration, with costs of suit, release of errors, without stay of execution and attorney's fees in the amount of 20% of the unpaid balance, and waive the right of inquisition, and the benefit of all exemption laws nol,wor hereafter enacted, and agree to condernn~fion and the sale of real estate or personal , or a writ f,~ecution.: ,., Witness . ~ / Mic~e[De~va~)~ Witness -- Eric ~[oOry If a photostatic copy hereof shall have been filed in any of sa'~ proceedings, it shall not be necessary to file the original as a warrant of attorney. The foregoing warran! and power to confess judgment shall not be deemed to have been exhausted by any single exercise thereof, whether or not any such exemise shall be held by any court to be invalid, voidable or void, but may be exerdsed from time to time, as often as the Lessor shall elect, until all sums payable or that may become payable by each of the Undersigned have been paid in full .~. This Guaranty Agreement shall be binding upon the Undersigned, and upon the heirs, legal representatives, successors and assigns of the Undersigned. If more than one party shall execute this Guaranty Agreement the term "Undersigned" as used herein shall mean all parties execliting the Guaranty Agreement and each of them, and all such parties shall be jointly and severally obligated hereunder. This Guaranty Agreement shall be construed in accordance with and governed by the laws of the Commonwealth of Pennsylvania. Wherever possible each prov/sion of this Guaranty Agreement shall be interpreted in such manner as to be effective and valid under applicable laws bfit if any provision of this Guaranty Agreement shall be prohibited by or invalid under such law, such provision shall be ineffective to the extent of such prohibition or invalidity, without invalidating the remainder of such provision or the remaining pmvisious of this Guaranty Agreement. INTENDING TO BE LEGALLY BOUND HEREBY, the Undersigned have set their respective hands and seals the day and year first above written. Sil,ned, Sealed and Delivered_/] ~itness Wilnexs Michaet DeCavttlcante (SEAL) : { 62934 2 SHERIFF'S CASE NO: 2004-02638 P COMMONWEALTH OF PENNSYLVA/qIA: COUNTY OF CUMBERLAND GROSSMAN HARRY ET AL VS VOODOO PARK INC ET AL RETURN - REGULAR ROBERT BITNER , Sheriff or Deputy Sheriff of Cumberland County, Pennsylvania, who being duly sworn according to law, says, the within CONFESSION OF JUDGE was served upon VOODOO PARK INC the DEFENDANT , at 1500:00 HOURS, on the 28th day of June , 2004 at 6TH AND WATER STREETS NEW CUMBERLJtND, PA 17070 by handing to KEVIN CASSAR, ADULT IN CHARGE a true and attested copy of CONFESSION OF JUDGE together with NOTICE UNDER RULE 2973.2 JUDGE/EXEC COMPLAINT FOR CONFESSION - POSESSION and at the same time directing His attention to the contents thereof. Sheriff's Costs: Docketing 18.00 Service 11.73 Affidavit .00 Surcharge 10.00 .00 39.73 Sworn and Subscribed to before me this ~ day of ~~o t~~ ~ A.D. honot ary ' So Answers: R. Thomas Kline 06/30/2004 DAVID LANZA Deputy Sherzff David J. Lanza I.D. No. 55782 2157 Market Street Camp Hill, Pennsylvania 17011 (717) 730-3775 Attorney fbr Plaintiffs ~ARRY AND SUZY GROSSMAN, Plaintiffs VOODOO PARK, INC., : Defendant : IN THE COURT OF COMMON PLEAS OF CUMBERLAND cOUNTY, PENNSYLVANIA NO. 04 - 2638 CIVIL ACT1ON - LAW IN EJECTMENT PRAECIPE FOR WRIT OF POSSESSION To the Prothonotary: Please issue a writ of possession directed to the Sheriff of Cumberland County for the real property situate at 6th and Water Streets, New Cumberland, Cumberland County, Pennsylvania 17070. Respectfully submitted, By: David J Lanza Attorney I.D. No. 55782 2157 Market Street Camp Hill, PA 17011 Telephone (717) 730-3775 Attorney for Plaintiffs 56-1 HARRY AND SUZY GROSSMAN WRIT OF POSSESSION (Ejectment Proceedings PRCP 3160 - 3165 etc.) IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA VS. No. 04-2638 Civil Term No. Term Costs Att'y. $ 89.23 Pl'ff (s) $ Prothy. $ 1.00 COMMONWEALTH OF PENNSYLVANIA: COUNTY OF CUMBERLAND: To the Sheriff of Ctanberland County, Pennsylvania (1) To satisfy the judgment for possession in the above matter you are directed to deliver possession of the following described property to: Har~y and Suzy Grossman being:(Premises as follows): 6th and Water Streets New Ctraberland, PA 17070 Plaintiff (s) (2) To satisfy the costs against the defendant (s) you are directed to levy upon any property of the defen- dant (s) and sell his/her (or their) interest therein. Pro n~o~of Cumberland County, Pennsylvania Date Julv 26, 2004 BY: (SEAL) Deputy By virtue of this writ, on the 12th day of August I caused the within named Harry and Suzy Grossman have possession of the pretnises described ~X{~I~Y~i~y~9~y~y,J~ 6 th & Wa ter Streets, New Cumberland, PA 17070 2004 ....... to Sheriff's Return Docketing Poundage Prothy Milage Possession Surcharge 18.00 1.64 1.OO 12.58 30.00 20.00 ~3.22 .... Advance Costs: I00.O0 She~cr% Costf 83.22 16.78 Refunded to Atty 8/16/04 Sworn and subscribed to before me this ,~o -' day of ~.,_~w ,-, ,