HomeMy WebLinkAbout01-7089WINDSOR PARK SHOPPING
CENTERS PARTNERSHIP, LLP,
Plaintiff
RONALD J. HUNZIKER, DAVID S.
THOMAS AND MICHELLE A.
THOMAS, individually and t/a
CENTRAL PENN EYECARE,
Defendants
'NO.
:
:
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PENNSYLVANIA
CIVIL ACTION - LAW
JURY TRIAL DEMANDED
NOTICE
YOU HAVE BEEN SUED IN COURT. If you wish to defend against the
claims set forth in the following pages, you must take action within twenty (20) days
after this Complaint is served, by entering a written appearance personally or by
attorney and filing in writing with the Court your defenses or objections to the claims set
forth against you. You are warned that, if you fail to do so, the case may proceed
without you and a judgment may be entered against you by the Court without further
notice for any money claimed in the document 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.
As provided by Pennsylvania Rules of Civil Procedure No. 1018.1, the
following officer is designated to be named in the Notice to Defend in order to find out
where legal help can be obtained.
Cumberland County Bar Association
2 Liberty Avenue
Carlisle, PA 17013
(717) 249-3166
5. Defendant, Michelle A. Thomas, is an adult individual who resides at 730 Meadow
Drive, Camp Hill, PA 17011.
6. Defendants are partners of, and trade and do business as, Central Penn Eyecare
(herein, "Central Penn").
7. Jurisdiction is proper in this Court because Plaintiff's cause of action arose in
Cumberland County.
8. The amount in controversy in this case does not exceed $25,000 as required by the
Cumberland County local rules regarding compulsory arbitration.
9. On or about November 2, 1995, Central Penn entered into a commercial lease
agreement (herein, the "Lease") with Plaintiff. A true and correct copy of the Lease
is attached hereto as Exhibit A and is incorporated herein by reference as if fully set
forth.
10. Pursuant to the Lease, Central Penn leased from Plaintiff the premises known as
5244 Simpson Ferry Road located in the Shopping Center (herein, the "Premises").
11. The term of the Lease was three years, beginning on January 1, 1996 and ending
on December 31, 1998.
12. Prior to the expiration of the term of the Lease, Central Penn exercised its option to
renew the Lease for an additional three-year term, for the period January 1, 1999
through December 31,2P01. A true and correct copy of the option letter executed
by Central Penn is attached hereto as Exhibit B and is incorporated herein by
reference as if fully set forth.
13. On April 28, 2000, Plaintiff initiated an eviction action against Central Penn as a
result of Central Penn's failure to pay rent due under the Lease.
14. On May 10, 2000, judgment was entered against Central Penn for the amounts
owed as of May 2000 and for possession of the Premises (herein, the "Judgment").
15. Subsequent to the filing of the eviction action, Plaintiff and Central Penn entered
into an agreement whereby Central Penn would pay its outstanding arrearage and
Plaintiff would not evict Central Penn.
16. Notwithstanding the agreement, Central Penn did not pay its arrearages.
17. In addition, Central Penn did not pay its monthly rental obligations under the Lease
while it remained in the Premises.
18. In violation of the Lease, Central Penn vacated the Premises in or about
September 2000.
19. Plaintiff was able to re-rent the Premises as of November 1,2000 at a rental rate
less than Central Penn was obligated to pay under the Lease.
20. After Central Penn vacated the Premises, Plaintiff, through its counsel, made
several demands to Defendants for payment of the amounts due under the Lease
for the period July 2000 through and including October 2000.
21. Despite repeated demands, Defendants have failed and refused to pay the
amounts owed under the Lease.
22. Defendants are obligated to Plaintiff for rent for the months July 2000 through
October 2000 in the total amount of $5,147.40. (Plaintiff's claims set forth herein
are separate and distinct from Defendants' obligations under and pursuant to the
Judgment. Defendants are obligated for the amounts owed under the Judgment in
addition to the amounts sought herein.)
23. Pursuant to the Lease, Central Penn was obligated to pay, for each month of the
Lease and in addition to its base rent, its share of water and sewer charges and the
costs of common area maintenance (herein, "CAM").
24. Central Penn failed to pay its share of water, sewer and CAM charges for the
periods set forth below.
25. Pursuant to the Lease, Defendants are obligated to pay late charges on amounts
owed under to the Lease, but not paid.
26. Defendants are obligated to Plaintiff for water, sewer, CAM and late charges as
follows:
$147.72
25.48
172.72
415.95
$ 761.87
Water (12/99 - 10/00)
Sewer (7/00 - 10/00)
CAM (through 10/00
Late charges (5/00 - 10/00)
Total
27. In addition, as a result of Plaintiff's re-rental of the Premises at a lesser amount
than Central Penn was obligated to pay, Defendants are liable to Plaintiff for rent
loss for the period November 1,2000 through December 31,2001 in the total
amount of $8,133.54.
28. Defendants are entitled to a credit from Plaintiff in the total amount of $1,636.33, for
prepaid insurance costs and taxes and a security deposit.
29. Pursuant to paragraph 25 of the Lease, Defendants are liable for Plaintiff's
reasonable attorneys' fees.
30. In connection with Defendants' default of the Lease and their failure to cure said
defaults, Plaintiff has engaged the services of the undersigned attorneys.
31. Plaintiff is entitled to recover all reasonable attorneys' fees charged by the
undersigned, which amount will be proven at trial.
32. The total amount Defendants owe to Plaintiff is $12,406.48, plus the attorneys' fees
Plaintiff incurs in this case. (Plaintiff's claims set forth herein are separate and
distinct from Defendants' obligations under and pursuant to the Judgment.
Defendants are obligated for the amounts owed under the Judgment in addition to
the amounts sought herein.)
WHEREFORE, Plaintiff respectfully requests that this Honorable Court enter
judgment in its favor and against Defendants, jointly and severally, in the amount of
$12,406.48, together with the costs of this action, attorney's fees to be proven at trial
and interest, and grant such other relief as this Court deey just and appropriate.
Respectfully/y~ibrnitted,
WIX, WEN & WEIDNER
BY:( l~tev~ R. Williams, I.D.# 6205
'~508 North Second Street
P.O. Box 845
Harrisburg, PA 17108-0845
(717) 234-4182
Attorneys for Plaintiff
Date:
F:\srw\1742 (DAVID S BROWN)\10797 (WINDSOR PARK v. CENTRAL PENN EYECARE)\DOCUMENTS\COMPLAINT.doc
LEA E AGR EMENT
This LEASE, Made November ~// , 1995 by and between
WINDSOR PARK SHOPPING CENTERS PARTNERSHIP, hereinafter called
"Landlord", and CENTRAL PENN EYECARE, hereinafter called
"Tenant".
That in consideration of the mutual promises herein
contained, the Landlord hereby rents to the Tenant, and the
latter does hereby rent from the former, the premises described
as 5244 Simpson Ferry Road, Mechanicsburg, PA 17055 containing
approximately 1200 square feet, said premises being outlined in
red on the attached Plat marked Exhibit "A", and made a part
hereof, (and hereinafter called the "Leased Premises" or the
"Demised Premises" or the ,,premises") for the term of three (3)
years beginning on the commencement date as hereinafter defined.
The occupancy date, whenever used herein, shall be
November 1, 1995. The commencement date, whenever used herein,
shall be January 1, 1996. Basic annual rent only sahll abate
between the occupancy date and the commencement date.
1. Rent: .~ ·
The total annual rental for the first year of the term
shall be Thirteen Thousand Two Hundred Dollars ($13,200.00),
which the Tenant covenants to pay in advance in equal monthly
installments of One Thousand One Hundred Dollars ($1,100.00) , the.
first installment of which, pro rated if the commencement date is
other that the first day of a calendar month, is due and payable
on the commencement date, with subsequent installments due and
payable on the first day of each calendar month thereafter until
the total rent provided for is paid. The Tenant covenants to pay
concurrently with the signing hereof, the sum of One Thousand One
Hundred Dollars ($1,100.00), to be credited to the first month's
rent under this Lease as above provided.
The total annual rent in each subsequent year of this
lease shall be as follows:
Year An a_~
2 $13,728.00 $ 1,144.00 ~/?
3 $14,277.00 $ 1,189.75 i!~
2. payment, Late Charqe, Time of Essence:
The Tenant covenants to pay the rent as herein provided
without deduction whatsoever, and without any obligation on the
Landlord to make demand for it. To any installment of rent
accruing hereunder and any other sum payable hereunder, if not
paid when due, shall be added a late charge of five (5%) p~rcent
of the amount overdue, for each month-the payment is late on all :~"
amounts from the date said payment was due until paid. Time is
of the essence in this lease. Payments shall be made to Landlord
at the address set forth herein on the notice address.
3. eal state Taxes:
(a) Tenant covenants and agrees to pay Landlord
within fourteen (14) days of Landlord's notice to Tenant, as
additional rent, Tenant's proportionate share, being equal to
1.46% of such amount due of any real estate taxes assessed
against the land and/or building(s) in which the premises are
included. If this Lease shall be in effect for less than a full
fiscal year, Tenant shall pay a prorated share of the taxes,
based upon the n,l~her of months that this Lease is in effect.
"Taxes" as used herein shall include, but not by way of
limitation, all paving taxes, special paving taxes, Metropolitan
District Charges, personal property taxes, sewer rents and any
and all other benefits or assessments which may be levied on the
premises or the land or building(s) in which the same are
situate, but shall not include any income tax on the income or
rent payable hereunder. Any reasonable expense incurred by
Landlord in contesting any real estate tax shall be included as
an item of taxes for the purpose of computing additional rent due
the Landlord. In the event the "Real Property" is not separately
assessed the parties hereto shall agree on an assessment figure
which shall become the figure for the Base Year. Notwithstanding
the above, at no time shall the total of the tax bill and the
expense incurred by Landlord in contesting any tax bill exceed
the initial tax bill amount. In the event the parties hereto
cannot agree, the questions shall be submitted to arbitration
pursuant to Article 7 of the Annotated Code of Maryland.
(b) Landlord shall have the option, upon written
notice to Tenant to collect, together with the monthly payment of
rent hereunder, an amount equal to one-twelfth (1/12) of Tenant's
proportionate share of the estimated real estate taxes due for
the next succeeding fiscal year so that Landlord shall have an
amount sufficient to pay such taxes when due. Appropriate
adjustments shall be made between Landlord and Tenant upon the
determination of the actual amount of such taxes.
(c) The first "Lease Year" is defined as the
first twelve (12) full calendar months of the term; subsequent
Lease Years are subsequent twelve (12) month periods.
4. Ca eo P ises:
(a) The Tenant agrees that he will take good care
of the Leased Premises, fixtures, and appurtenances, including
exterior doors and windows, window frames, hardware and the like,
and electric meters, plumbing, heating and air conditioning
equipment (including that on the exterior of the Demised
Premises), and keep same in good order and repair throughout the
term of this Lease, and suffer or permit no waste or injury;
Landlord shall assign to Tenant, for the benefit of the Tenant,
to the extent they are assignable, any warranties on such
equipment furnished Landlord by the Seller and/or provider
thereof; that Tenant will conform to all laws, orders, and
regulations of the Federal, State, County and City authorities,
or any of their departments, and will not, through its own act or
neglect, cause any situation to exist in or about the Leased
Premises which would constitute a violation of any applicable
Federal, State, County, or city Code Regnlation or Ordinance
governing use, occupancy, health, sanitation, or fire; that he
will not do, or permit anything to be. done, in the premises which
will in any way increase the rate of fire insurance on the
building, or conflict with the fire insurance policies on the
building; that he will save harmless the Landlord from any
liability arising from injury to person or property caused by any
act or omission of Tenant, his agents, employees or guests; that
he will repair at or before the end of the term, or sooner if so
requested by the Landlord, all injury done by the installation or
removal of furniture or other property, and will surrender the
Leased Premises at the end of the term broom cleaned in as good
condition as they were at the beginning of the term, ordinary
wear and tear and casualties by fire and element~ excepted. In
the event of any increase in insurance as a result of the failure
of the Tenant to comply with the provisions of this Paragraph,
the Tenant will pay the amount of such increase as additional
rent within thirty (30) days after the Landlord's written demand.
Nothing in this Paragraph shall be deemed to ~lace upon the
Tenant any obligation to make structural repalrs, improvements or
changes which may be required by any governmental body, provided
the same are not required by the Tenant's use of the premises.
The Landlord shall be under no liability to the Tenant
for any discontinuance of heat, air conditioning, and hot water
.unless due to Landlord's negligence. The Landlord shall not be
liable for any loss or damage to the Tenant caused by rain, snow,
water or storms that may leak into or flow from any part of the
premises through any defects in the roof or plumbing or from any
other source.
(b) Notwithstanding anything contained herein to
the contrary, Landlord shall have no obligation whatsoever to
make any repairs to the Demised Premises or to the building other
than to make repairs resulting from damage caused by negligence,
if any, of Landlord or its agents or employees or contractors
except as otherwise provided in this Agreement. Landlord agrees
to maintain and will keep in good repair the exterior of the
building and parking areas, unless such repairs are necessitated
by the fault of the Tenant, its agents, employees, business
invitees or guests.
(c) Business machines and mechanical equipment
shall be placed and maintained by Tenant, at Tenant's expense, in
settings sufficient in Landlord's reasonable judgement to absorb
and prevent vibration, noise and annoyance.
(d) There shall be no allowance to Tenant for any
diminution of rental value and no liability on the part of the
Landlord by reason of inconvenience, annoyance or injury to
business arising from the making by Landlord, Tenant or others of
any repairs in or to the Building or the Demised Premises, or in
or to the fixtures, appurtenances or equipment thereof.
(e) Whether or not such HVAC Maintenance
Contracts are in force, Tenant shall be responsible for the cost
of all needed repairs to each and every component of each and
every said system except as otherwise set forth herein.
(f) In the event Tenant shall not proceed to
commence promptly and diligently to make any repairs or perform
any obligation imposed upon it by this Section within ten (10)
days after receiving written notice from Landlord to make such
repairs or perform such obligation, then and in such event,
Landlord, may, at its option, enter the premises and do and
perform the things specified in said notice, without liability on
the part of Landlord for any loss or damage resulting from any
such action by Landlord and Tenant agrees to pay promptly upon
demand any cost or expense (including Landlord's administrative
expenses of ten percent (10%) of direct costs) incurred by
Landlord in taking such action, together with interest on such
amounts at two (2) points over the prime rate of interest
announced and in effect from time to time at the First National
Bank of Maryland.
(g) Notwithstanding anything to the contrary
herein, Landlord shall warrant its work within the premises and
the systems serving the premises for a period of one (1) year
from the occupancy date hereunder provided, however, such defect
is not the result of Tenant's negligence or misconduct.
Notwithstanding anything to the contrary contained herein,
Landlord shall be responsible for the cost of repairs above
$350.00 per service call to said unit, (not including any.costs
associated with the service contract), provided gaid repairs are
not required due to Tenant negligence or misconduct.
Tenant shall, at its own cost and expense, pay all
charges when due for water, ga~, electricity, heat, sewer charges
and any other utility charges incurred in the use of the Leased
Premises. Landlord shall, at Landlord's cost and expense,
install separate electric meters for each Tenant.
6. Use and OccuDancv:
The Premises are to be used only for the purpose of
optical services and for no other purpose. Tenant will not use
the Premises for any unlawful purpose.;.Tenant covenants not to
conduct nor permit to be conducted on the Premises any business
in violation of any law of the city and/or County in which the
Premises are located or State or Federal law, ordinance or
regulation.
7. e itted Name:
Tenant shall conduct business on the Demised Premises
only in the name of Central Penn Eyecare and under no other name
or trade name unless and until the use of some other name is
approved in writing by Landlord which approval shall not be
unreasonably withheld or delayed.
8. Access bY Landlord:
The Landlord shall retain duplicate keys to all of the
doors of the Leased Premises, and the Landlord or his agents
shall have access to the Leased Premises at all reasonable hours
in order to inspect same, to clean or to make necessary repairs
within the Leased Premises or on said building with 24 hours
prior notice except in a bona fide emergency situation in which
notice is not required. The Landlord shall have the right to
show the Leased Premises to prospective tenants at any time
during the final year of the lease term or any extension or
renewal thereof, providing it does not unduly interfere with the
Tenant's use of the Premises.
This Lease shall be subject'to and subordinate at all
times only to the lien of any first mortgage and/or deed of trust
and to all advances made or hereafter to be made thereunder.
This subordination provision shall be self-operative and no
further instrument of subordination shall be required.
10. Assianment or Sublettina:
Tenant shall not assign, mortgage or encumber this
Lease, nor sublet the premises or any part thereof without the
prior written consent of Landlord which consent shall not be
unreasonably withheld or delayed. Said consent to assignment or
sublease may be withheld in the sole and absolute subjective
discretion of the Landlord if the subleasee's use conflicts with
any existing Tenant in the center. In the event of the
insolvency or bankruptcy of Tenant, this Lease shall, at the
option of the Landlord, terminate forthwith, and this Lease shall
not, by operation of law or otherwise, be considered a part of
the Tenant's estate. Tenant may assign this Lease without
Landlord's consent (but with notice to Landlord) to another
optical services company provided said sublessee has the
financial capability to pay the rent under this Lease.
The Tenant covenants not to make or permit any
alterations, additions or improvements to said pr~mises without
the prior written consent of the Landlord, and all additions and
improvements made by Tenant, except only moveable office
furniture, and equipment, shall becomethe property of the
Landlord at the termination of this Lease or the vacating of this
premises.
12. Increased Fire Insurance Rate:
Tenant shall not do, suffer to be done or keep or
suffer to be kept anything in, upon or about the Demised PremiseS
· which will contravene Landlord's policies insuring against loss
or damage by fire or other hazards, including but not limited to
public liability or which will prevent Landlord from procuring
such policies in companies acceptable to Landlord. If anything
be done, omitted to be done or suffered to be done by Tenant or
kept or suffered by Tenant to be kept in, upon or about the
Premises that shall cause the rate of fire or other insurance on
the Premises or other property of Landlord in companies
acceptable to Landlord to be increased beyond the minimum rate
from time to time applicable to the Demised Premises for use for
the purposes permitted under this Lease, Tenant will pay the
amount of such increase promptly upon Landlord's demand as
additional rent.
13. Co on Faci it'es:
The Co~mon Facilities which may be furnished by
Landlord in or near the office Building area/building for the
general common use of Tenants, their officers, agents, employees
and customers, including, without limitation, all parking areas,
access roads, employee parking areas, driveways, loading docks
and areas, delivery passages, sidewalks, malls, courts and ramps,
landscaped and planted area, repalnting walls, stairways, bus
stops, lighting facilities, comfort stations, elevators and other
areas and improvements, shall at all times be subject to the
exclusive control and management of Landlord. Landlord reserves
the right, in its sole discretion, to change, rearrange, alter,
modify, reduce or supplement any or all of the common facilities
so long as adequate facilities in common are made available to
Tenant herein.
14. Appearance Outside:
Tenant shall maintain its show windows in a neat and
clean condition, shall keep the sidewalks adjoining the Demised
Premises clean and free from rubbish, and shall store all trash
and garbage in the dumpsters provided by Tenant. Tenant shall
not burn any trash of any kind in or about the building, nor
shall Tenant permit rubbish, refuse or garbage to accumulate or
fire hazard to exist about the Demised Premises. Landlord agrees
that Landlord shall maintain the common areas of the shopping
center in a commercially reasonable manner in order to attract
customers.
15. Sians:
The Tenant shall not display any sign, picture,
advertisement, awning, merchandise, or notice on the outside or
roof of the building of which the Demised Premises are a part,
nor on the exterior of the Demised Premises unless approved by
the Landlord in writing. Said sign shall be in conformity, as to
size, style and location, with the signage scheme established by
the Landlord for the Building. Tenant shall, within a reasonable
time, submit to Landlord for Landlord's approval, a sketch of the
sign. Tenant shall have no right to correct the style or size of
the sign or lettering thereon, providing same conform with the
scheme mentioned above, but the corrections shal~ be only with
respect to the spelling of the names to be displayed thereon.
Landlord, at Tenant's cost, shall have the right to require ,
Tenant to place signage on the exterior of the building, in
accordance with the approved signage scheme, at any time during
the term of this Lease.
16. DisPlaY:
The Tenant shall not display any merchandise, place
vending machines or show cases or other obstructions on the
outside of the building, or the Demised Premises, or in any lobby
or passageway adjoining the same.
17. Layout of Buildina:
The purpose of the site pith'attached hereto as
Schedule "A" is to show the approximate location of the Demised
Premises. Landlord reserves the right at any time to relocate
the various buildings, automobile parking areas and other common
areas shown on the site plan. Landlord hereby reserves the righ~
at any time to make alterations or additions to and to build
additional stories on the buildings in which the Demised Premises
are contained and to build additions adjoining the same or
elsewhere in the Building. Landlord also reserves the right to
construct other buildings or improvements in the area of the
Building from time to time and to make alterations thereof or
additions thereto on any such building or buildings and to build
adjoining same. Notwithstanding anything to the contrary
contained herein, no alterations, improvements or additions to
the shopping center shall materially adversely interfere with the
visibility or access to the Tenant for a period of time in excess
of one (1) week. If such interference does occur, basic annual
rent shall abate for the time period when the interference
exists.
18. ~osit:
Tenant, contemporaneously with the execution of this
Lease, has deposited with Landlord, the sum of One Thousand One
Hundred Dollars ($1,100.00), receipt whereof is hereby
acknowledged. Said deposit shall be held by Landlord, without
liability for interest, as security for the faithful performance
by Tenant of all of the terms, covenants, and conditions of this
Lease by said Tenant to be kept and performed during the term
hereof. If at any time during the term of this Lease any of the
rent herein reserved shall be overdue and unpaid, or any other
sum payable by Tenant to Landlord hereunder shall be overdue and
unpaid, then Landlord may, at the option of Landlord, (but
Landlord shall not be required to), appropriate and apply any
portion of said deposit to the payment of such overdue rent or ,
other sum. Should the entire deposit, or any portion thereof, be
appropriated and applied by Landlord for the payment of overdue
rent or other sums due and payable to Landlord by Tenant
hereunder, then Tenant shall, upon the written demand of
Landlord, forthwith remit to Landlord a sufficient amount in cash
to restore said security to the original sum deposited, and
Tenant's failure to do so within five (5) days after receipt of
such demand shall constitute a breach of this Lease. Should
Tenant comply with all of said terms, covenants, and conditions
and promptly pay all of the rental herein provided for as it
falls due, and all other sums payable by Tenant in full at the
end of the term of this Lease, or upon the earlier termination of
this Lease, the said Security Deposit shall be returned to
Tenant; no interest thereon shall accrue nor shall any interest
be paid to Tenant. Landlord may deliver the funds deposited
hereunder by Tenant to the purchaser of Landlord's interest in
the Demised Premises, in the event that such interest be sold and
thereupon Landlord shall be discharged from any further liability
with respect to such deposit. Tenant agrees, however, that in
the event the first mortgagee (or trustee under the first deed of
trust) encumbering the building takes possession of the Premises
through foreclosure or otherwise, the said first mortgagee (or_
trustees under the first deed of trust) shall not be accountable
for any payments made pursuant to the first sentence of this
Paragraph, unless the first mortgagee~ (or trustees under the
first deed of trust) have acknowledged receipt, in writing, of
the said payments. If Tenant is never in default during the
original term of this Lease, even if Tenant renews, Landlord will
return said security deposit to Tenant at the end of the original
lease term.
19. pamaqe to Premises:
If the Premises are partially damaged by fire or other
casualty, not the fault of the Tenant, Landlord shall make
repairs as speedily as conveniently possible. If the damage is
so extreme as to render the Premises wholly unfit for occupancy,
the rent shall cease until the Premises are put into repair by
the Landlord. In the event of total destruction of the building
of which the Demised Premises form a part, or if in the judgement
of the Landlord the damage to the Demised Premises cannot be
repaired within one hundred twenty (120) day~, and if the
Landlord shall decide not to restore or repair the same, or shall
decide to demolish the building, the Landlord may, within sixty
(60) days after such fire or other casualty, by notification to
the Tenant, terminate this Lease. In the event the Premises are
only partially damaged and fit for occupancy, Tenant shall
continue to pay rent, which rent shall be equitably adjusted. In
no event shall Landlord be liable fo~..any loss or damage
sustained by Tenant by reason of fire or other accidental
casualty. In the event more than fifty (50%) percent of the
building is destroyed and the Leased Premises are unfit for
occupancy, the Tenant may terminate this Lease upon thirty (30)
days prior written notice to the Landlord. .
20. Waiver or Breach:
No waiver of any breach of the covenants, provisions or
conditions contained in this Lease shall be construed as a waiver
of the covenant itself or any subsequent breach itself; and if
any breach shall occur and afterwards be comprOmised, settled or
adjusted, this Lease shall continue in full force and effect as
if no breach had occurred.
21. Rules and Reaulations:
Tenant shall comply with all rules and regulations of
the Windsor Park Shopping Center which rules and regulations are
attached hereto and are hereby made a part of this Agreement.
Any violation of said rules shall be a violation of this Lease,
which shall, subject to the notice provisions of Paragraph 28(b),
at the sole option of the Landlord, thereupon cease and
terminate, and Tenant shall be liable for all rent (past and
future) and other damages to Landlord as provided in Paragraph
28(b) and/or Landlord shall be entitled to any other remedy which
it may have at law or in equity and/or otherwise provided for in
this Lease. Landlord shall have the right to make additions and
amendments to the Rules and Regulations, which shall be as
binding on Tenant as if set forth herein, provided such additions
and amendments do not materially and adversely affect the
Tenant's use of the Demised Premises, and provided that they are
not inconsistent with the terms of this Lease.
22. Insurance:
The Tenant agrees to procure and maintain in force
public liability insurance in a company or companies acceptable
to Landlord for the 'leased premises which policies shall be
written to protect the Tenant and the Landlord in the amount of
One Million Dollars ($1,000,000) combined single limit per
occurrence with at least an aggregate of Two Million Dollars
($2,000,000) excess coverage and with Fire Legal Liability
coverage in the amount of Five Hundred Thousand Dollars
($500,000). Tenant also agrees to furnish to Landlord
certificates of the issuance and maintenance of such policies of
insurance, all of which shall be paid for by the Tenant.
23. Indemnity:
Tenant will indemnify Landlord and save it harmless
from and against any and all claims, actions, damages,
liabilities and expenses (including reasonable attorneys fees) in
connection with loss of life, personal injury and/or damage to
property (including environmental and hazardous waste damages)
arising from or out of any occurrence in, upon or at the Leased
Premises, or the occupancy or use by Tenant of the Leased
Premises or any part hereof, or occasioned wholly in part, by act
or omission of Tenant, its agents, contractors, or employees,
servants, lessees or invitees. In case Landlord shall, without
fault on its part, be made a party to any litigation commenced by
or against Tenant, then Tenant shall protect and hold Landlord
harmless and shall pay all costs, expenses and reasonable
attorneys'fees incurred by Landlord in connection with such
litigation. Tenant shall indemnify L~ndlord for any damage to
any property of Landlord caused by or arising out of or in
connection with any act or omission of Tenant, its employees,
servants, agents, contractors, or invitees, or Tenant's occupancy
or use of the premises or common areas, or anything, matter or
condition of, on or pertaining to the premises, or any breach by
Tenant of any term, covenant or condition of this Lease to be
performed or observed by Tenant.
Landlord will indemnify Tenant and save it harmless
from and against any and all claims, actions, damages,
liabilities and expenses (including reasonable attorney's fees)
in. connection with loss of life, personal injury and/or damage to
property (including environmental and hazardous waste damages)'
arising from or out of any occurrence in, upon or at the Leased
Premises and occasioned wholly or in part, by act or omission of
Landlord, its agents or employees. In case Tenant shall, without
fault on its part, be made a party to any litigation commenced by
or against Landlord, then Landlord shall protect and hold Tenant
harmless and shall pay all costs, expenses and reasonable
attorney's fees incurred by Tenant in connection with such
litigation. Landlord shall indemnify Tenant for any damage to
any property of Tenant caused by or arising out of or in
connection with any act or omission of Landlord, its employees,
servants, agents, contractors, or invitees, or Landlord's
occupancy or use of the premises or common areas, or anything,
matter of condition of, on or pertaining to the premises, or any
breach by Landlord of any term, covenant or condition of this
Lease to be performed or observed by Landlord.
24. Condemnation: ~.'
In the event the whole or any part of the Leased
Premises shall be taken under the power of eminent domain, or
sold under threat thereof, or taken in any manner for public use,
the Landlord, at its option, may terminate this Lease, which
Lease shall then terminate on the effective date of the
condemnation or sale. The compensation awarded or paid for such
taking, both as to Landlord's reversionary interest and Tenant's
interest under this Lease, shall belong to and be the sole
property of the Landlord. Tenant shall have no claim against the
Landlord or be entitled to any award or damages other than an
abatement of the rent beyond the period of termination date and
compensation paid for moving expenses and/or cost of removal of
stock and/or trade fixtures, if allowable by the %ondemnor.
25. Additional Rent and Attorney's Fees:
Whenever, under the terms of this Lease, any sum of
money is required to be paid by Tenant in addit%on to the rental
herein reserved, whether or not such sum is herein designated as
"additional rental", or provision is made for the collection of
such sum as ,,additional rental", said sum shall, nevertheless, at
Landlord's option, if not paid when due, be deemed additional
rent, and shall be collectable as such. In the event of
employment of an attorney by the Landlord because of the
violation of any term or provision of this Lease, the Tenant
shall pay reasonable attorney's fees.
26. Covpnant to Surrender:
This Lease and the tenancy hereby created shall cease
and terminate at the end of the original term hereof, without the
necessity of any notioe of termination from either Landlord or
Tenant, and Tenant hereby waives notice to remove and agrees that
Landlord shall be entitled to the benefit of law respecting
s~mmary recovery of possession of the premises from a Tenant
holding over to the same extent as if statutory notice was
given, provided, however, that this Lease and-the tenancy hereby
created shall not so cease and terminate at the end of the
original term if the Tenant shall have been granted an option or
options to renew and shall have exercised said option or options
in accordance with the terms thereof and shall be entitled to
remain in possession under said option and/or options. In said
event, this Lease and the tenancy hereby created shall cease and
terminate at the end of the last option period exercised under
the terms of this Lease without the necessity of any notice of
termination from either Landlord or Tenant, and the Tenant hereby
waives notice to remove and agrees that Landlord shall be
entitled to the benefit of law respecting summary recovery of
possession of premises from the Tenant holding over to the same
extent as if statutory notice were given. If Tenant shall occupy
the premises after such expiration or termination, it is
understood that Tenant shall hold the premises as a tenant from
month to month, subject to all the other terms and conditions of
this Lease, at an amount equal to double the highest monthly
rental installment reserved in this Lease.
27. Ouiet EnPovment:
Landlord covenants that, upon the payment of the rent
herein provided, and the performance by the Tenant of all
covenants herein, Tenant shall have and hold the premises, free
from any interference from the Landlord, except as otherwise
provided for herein.
28. Tenant Default:
(a) In case of the non-payment of rent within five
(5) days after written notice is mailed to Tenant, or in case the
said Leased Premises shall appear to be deserted, or vacated, the
Landlord shall have the right to enter the same and distrain for
any amount of money that may be due under this Lease, either by
force or otherwise, without being liable to any prosecution
therefor, and to apply any proceeds to the payment of the rent
due or to be due, holding the Tenant liable for any deficiency.
(b) It is agreed that upon any default on the
part of the Tenant of any provision or covenant of this Lease
other than the non-payment of rent, the Landlord shall have the
right, after ten (10) days notice to the Tenant, to perform
therefore on behalf of the Tenant at the risk and expense of the
Tenant and to render a bill for the cost thereof to the Tenant,
which shall be payable as rent. Upon failure of the Tenant to
pay such bill within ten (10) days after sending ~uch bill to the
Tenant at the Leased Premises, the Landlord shall have the same
rights against the Tenant (and with reference to the leased
premises) as it has in the event of non-payment of rent.
(c) The Landlord shall have the right after ten
(10) days' written notice of a violation by the Tenant of any of
the covenants or provisions on the part of the Tenant contained
in this Lease, to re-enter and take possession of the Leased
Premises without formal notice if the violation has not been
corrected within said ten (10) days after notice (provided that
if the Tenant has commenced to repair the Premises within said
ten (10) days and proceeds, with due diligence to complete same,
it shall not constitute a default), and it is further agreed that
notwithstanding such re-entry, the Tenant .shall remain liable for
all rent and other damages and losses as of the date of re-entry,
and shall further be liable, at the option of the Landlord, for
the amount of rent reserved under the Lease for the balance of
the term, less any amount of rent received by the Landlord during
such period from others to whom the Premises may be rented on
such terms and conditions and at such rentals as Landlord, in its
sole discretion, shall deem proper, all of which shall be at the
risk and expense of the Tenant. In addition, Landlord, at its
option, shall have the right to repossess the Leased Premises and
terminate this Lease.
(d) In the event Landlord terminates this Lease, ,
the Landlord may, without further notice, re-enter the Leased
Premises and dispossess Tenant, the legal representatives of
Tenant, or other occupant of the Leased Premises, and remove
their effects and hold the Premises as if this Lease has not been
made. The Landlord shall also be entitled to the benefit of all
provisions of law for the recovery of land and tenements held
over by Tenant in Cumberland County, Pennsylvania, or the
Township in which the Premises are located, including the benefit
of any public, general or local laws relating to the speedy
recovery of possession of lands and tenements held over by
lessees in said County in which the Premises are located, that
not or may hereafter be enacted.
(e) It is expressly agreed a~d understood that
the exercise of any one or more of said rights shall not be
construed as a waiver of any other rights, it being understood
that all of said rights shall be cumulative and may be exercised
simultaneously.
(f) The Tenant does hereby, upon breach of any of
the conditions or covenants of this lease during the original
term or any renewal, and also when and as soon as the term hereby
created or any extension or renewal thereof shall have expired
agrees that an amicable action of ejectment may be entered by the
Protho-notary of the Court of Common ~leas of the County of
Cumberland as if a complaint in ejectment has been filed by the
Landlord as Plaintiff against the Tenant as defendant for all and
singular the property herein described and as if said complaint
in ejectment had been duly served personally upon the Tenant by
the Sheriff of said County within said County and had been duly ~
returned by said Sheriff served personally upon said Tenant, and
the said Tenant hereby authorizes and empowers any attorney of
any court of record to appear for the Tenant in said amicable
action of ejectment of confess judgment therein in favor of the
Landlord and against the Tenant for said premises and said Tenant
further authorizes the immediate issuance of a writ of possession
upon a praecipe therefor by the plaintiff's attorney and the
Tenant hereby waives any and all right of stay of execution and
releases to the Landlord all errors and defects whatsoever in
entering said action or judgment or in causing said writ to issue
or in any proceeding thereon or concerning the same and agrees
that no writ or error, objection or exception shall be made or
taken thereto, and if after execution and return of the writ the
defendant shall re-enter into possession, the prothonotary, upon
praecipe and affidavit setting forth the facts, filed within
three (3) years after the return of the writ upon which execution
was completed shall issue a new writ of possession.
29. Notice:
Ail notices from Tenant to Landlord shall be sent by
Registered or Certified Mail, Return Receipt Requested, and
addressed to Landlord at 9183 Reisterstown Road, Owings Mills,
Maryland 21117. After occupancy of the demised premises, all
notices from Landlord to Tenant shall be sent by Registered or '
Certified Mail, Return Receipt Requested, Hand Delivery, or
nationally recognized overnight Delivery Service and addressed to
Tenant at the premises. Either party may from time to time,
designate, in writing, by Registered or Certified Mail, Return
Receipt Requested, a substitute address, and thereafter all
notices shall be sent to such substitute address.
30. Other Taxes:
Tenant shall assume and pay to Landlord, as additional
rent, prior to the imposition of any fine, penalty, interest or
costs for the non-payment thereof, all excise, sales, gross
receipts, or other tax (other than a net income or excess profits
tax) which may be (i) assessed or imposed on or be measured by
such rent or other charge which may be treated as rent, or (ii)
which may be imposed on the letting or other transaction for
which such tax is payable and which Landlord may be required to
pay or collect under any law now in effect or hereafter enacted
by any governmental authority. In the event any tax is imposed
pursuant to this Paragraph in place of the real property tax,
then Tenant shall receive credit for an amount equal to its
proportionate share of the Base Year tax which would have been
paid pursuant to Paragraph 3 hereof.
31. Representations:
Landlord or Landlord,s agents have made no
representations or promises with respect to the said building or
Demised Premises except as herein expressly set forth.
32. Trial by Jury:
Landlord and Tenant do hereby waive trial by jury in
any action, proceeding or counter claim brought by either of the
parties hereto against the other on any matters whatsoever
arising out of or in any way connected with this Lease, the
relationship of Landlord and Tenant, Tenant's use or occupancy of
the demised premises, and/or any claim of injury or damage, and
any emergency statutory or any other statutory remedy.
33. Parking:
During the term of this Lease, customers of Tenant will
be entitled to the non-exclusive use, free of charge but in
common with others, of the driveways, footways, and parking areas
provided that such use shall be subject to such rules and
regulations as Landlord may, from time to time, prescribe
governing the same; and provided further that Landlord shall at
all times have full and exclusive control, management and
direction of said driveways, footways and parking areas.
Landlord shall further have the right to police the same; to
restrict parking by Tenant, their agents and employees; to
designate employee parking areas; to establish and enforce
parking charges (by meters or otherwise) with appropriate
provisions for free parking ticket validation by Tenants; to
close temporarily all or any portion of the parking areas or
facilities as may be required for proper maintenance and/or
repairs; to discourage non-customer parking; and to do and
perform such other acts in and to such areas in the use of its
business judgement, the Landlord shall determine to be advisable
in order to improve or make more convenient use thereof by
Tenant, their officers, agents, employees and customers. The
Landlord may, from time to time, change the location, layout and
arrangement of the parking areas, driveways and footways and
reduce the same by erecting therein store buildings and other
structure or improvements of any kind.
11
34. Gender:
Reference to masculine, feminine or neuter shall
include proper gender as the case may be. If more than one
Tenant is named herein, the obligations of the person so named
shall be joint and several.
35. Construction of Premises:
To the extent possible, Landlord shall make available
to Tenant the benefits of all warranties and guarantees obtained
from contractors, subcontractors, suppliers and manufacturers in
connection with the original construction and subsequent
alteration and repair of the premises and appurtenances.
36. ccess b ant:
Prior to the commencement date, Landlord shall allow
the Tenant and their agents or employees to enter upon the
premises for the purpose of erecting .~ixtures and improvements
not provided by the Landlord. The Tenant covenants that they and
their agents or employees shall enter on the premises and do
their work at such times and in a manner which will not interfere
with the work being performed by the Landlord. The Tenant
further covenants that all work done by them or on their behalf
shall be done in a good and workmanlike manner. The entry upon '
the premises by the Tenant or their agents or employees pursuant
to this Paragraph shall not be deemed to be occupancy of the
premises for the purpose of Paragraph 1 hereof.
37. EStODDel Certificates:
Tenant agrees that at any time, and from time to time,
upon not less than five (5) days prior notice by Landlord, it
will execute, acknowledge, and deliver to Landlord a statement in
writing certifying that this Lease is unmodified and in full
force and effect (or if there have been modifications, that the
same is in full force and effect as modified, and stating the
modifications) and the dates to which the rent and other charges
have been paid in advance, if any, and stating whether or not, to
the best knowledge of the signer of such certificate, Landlord is
in default in the performance of any covenant, agreement or
condition contained in this Lease and, if so, specifying each
such default of which the signer may have knowledge, it being
intended that any such statement delivered hereunder may be
relied upon by any third party not a party to this Lease.
38. Landlord's Liability:
It is understood that Landlord is a Maryland General
Partnership, and it is agreed, that in the event of the entry of
any judgment against the partners of said partnership, as it is
now or may hereafter be constituted, arising out of or by virtue
of any obligation required of Landlord pursuant to this Lease, no
assets of any partner shall be liable to levy and/or execution
and/or sale for satisfaction of said judgement except for the
partner,s interest in the partnership property of said
partnership.
39. Landlord,s Insurance Premi~m~:
¢
Tenant agrees to pay, as additional rent, within thirty
(30) days after being billed therefor by Landlord, 1.46% of any
and all insurance premiums charged Landlord for Landlord,s fire,
extended coverage and liability insurances, including umbrella
coverage with respect_to the Building. Such additional rent
shall be pro-rated for the last lease year.
12
40. Possession:
The parties hereto anticipate that the Leased Premises
will be ready for occupancy on or about the first day of
November, 1995. In the event the premises is not ready for
occupancy on the date stipulated, the Lease shall nevertheless
continue in full force and effect and Tenant shall have no right
to rescind, cancel or terminate the same, nor shall the Landlord
be liable for damages, if any, sustained by Tenant's inability to
obtain possession on such date, except that the commencement date
shall be moved forward to the date on which possession is made
available.
41. Landlord's Work
Landlord agrees, at its co~'and expense, to do the
following work within the premises:
1. Add wood sign over door.
2. Restore premises to clean vanilla shell
including clean ceiling tiles..
3. Remove trash from premises.
4. Clean front windows and doors.
Upon payment of $2500 to Landlord by Tenant, Landlord
will perform the work set forth in Exhibit B attached hereto.
42. OPtion to Renew:
Landlord covenants and agrees that if Tenant shall not
be in default in the performance of any of the covenants,
conditions and agreements of this Lease, Tenant shall have the
right and privilege, at its election, to renew this Lease for a
further ter~ of three (3) years by signifying its intention to
renew, in writing, to the Landlord no later than six (6) months
preceding the termination date of the original term of this
Lease, time being of the essence. This renewal term shall be
upon the same terms, covenants and conditions as are set forth
herein for the original term, saving that the annual rent (as set
forth in Paragraph 1 of this Lease) for the renewal term shall be
as follows:
4
5
6
employees shall be responsible for the maintenance of landscaping
around the building(s) (lawncutting, snow removal, trash removal,
etc.) in which the premises are located, as well as all the cost
and expense of repainting and general exterior maintenance and
other maintenance of the common area, parking area, driveways and
alleys. Landlord or its affiliates, subsidiaries, agents or
employees shall also be responsible for the cost and expense of
maintaining and illuminating the common areas around the
buildings(s).
Annual Rent Monthly Rent
$14,848.20 $ 1,237.35
$15,442.20 ,.. $ 1,286.85 ,f(. , ~ .~.~..
$16,059.84 $1,338.32 ::~ i
43. Common Area MaintenanGe
Landlord or its affiliates, subsidiaries, agents or
Tenant shall reimburse Landlord for Terfant's
proportionate share of such costs within fourteen (14) days after
Landlord's request therefor. At Landlord's option, Tenant shall
pay Landlord one twelfth (1/12) of Landlord's reasonable estimate
of such costs on an annual basis, which payment shall be included
with Tenant's monthly payment of base rental. Appropriate
adjustments shall be made between Landlord and Tenant upon the
determination of the actual amount of such costs by Landlord.
Landlord shall provide Tenant with written notice (the
"Adjustment Notice") of the actual adjustment to be made by and
13
between Landlord and Tenant. Upon ten (10) dyas advance written
notice received by Landlord no later than thirty (30) days after
the Adjustment Notice is sent, Tenant may inspect Landlord's
books and records pertaining to such costs for the immediately
preceding lease year at a location and date reasonably acceptable
to Landlord but no later than ninety (90) days after the
Adjustment Notice is sent. Tenant shall have no additional right
to inspect Landlord's books and records unless specifically
stated otherwise in this Lease.
Provided Tenant is not in default and no condition
exists which will result in the default with the mere passage of
time, Landlord agrees that it will lease no space in the Windsor'
Park Shopping Center from the day of this Lease forward to an
optical services company. Nothing in this Exclusive shall
restrict any Lease which is in existence prior to the date of
this Lease. Furthermore, nothing in this Exclusive shall limit
the occasional sales of sunglasses, reading glasses or the like
by any of the tenants in The Windsor Park Shopping Center.
45. Occupancy:
Provided Tenant is not in default and no condition
exists which will result in the default with the mere passage of
time, if at any time more than fifty percent (50%) of the
Tenant,s spaces (actual addresses not square footage) are
unoccupied and not open for business during the Lease term,
Tenant shall have the right to terminate this Lease upon thirty
(30) days advance written notice to Landlord. If Landlord can
evidence cure this default within the thirty (30) day period,
Tenant shall have no right to terminate this Lease.
46. CADS:
Notwithstanding anything to the contrary contained
herein, there shall be a cap on any passthroughs incurred by
Tenant for real estate taxes (Paragraph 3), insurance costs
(Paragraph 39) and common area maintenance charges (Paragraph 43)
under this Lease. Under any circumstances, the common area
maintenance, real estate tax and insurance costs shall not exceed
$1.40 per square foot in Year I of the Lease and this cap shall
increase by an additional five percent (5%) each lease year (i.e.
in Year 3, the cap rate on the expenses shall be $1.55 which is ~
five percent (5%) increase on $1.40 over two (2) years).
47. Death of Guarantor:
If one of the two (2) individual guarantors of this
Lease dies during the term of the Lease, provided no default
exists under this Lease, said guarantor who is dead shall be
released of its liability under the Lease and the Guaranty. Upon
such release of liability, the remaining guarantor shall be fully
liable under the terms of this Lease and their Guaranty.
48. M'scellan o s:
This Lease and the covenants, terms and conditions
contained herein shall inure to the benefit of and be binding on
Landlord, provided that if Landlord sells or otherwise transfers
title to building or Real Property, the Landlord shall be
relieved of all covenants and obligations hereunder upon
completion of such sale or transfer, and it shall be considered
that the transferee has assumed and agreed to carry out all of
the obligations of the Landlord hereunder. This Lease and the
covenants, terms and conditions contained herein shall be binding
on and inure to the benefit of the Tenant, its heirs,
14
distributees, executors, administrators, successors, and, except
as otherwise provided in this Lease, its assigns.
IN WITNESS WHEREOF, the parties hereto,, by the properly,
authorized persons and with their respective seals attached, have
duly executed this Lease the day and year first above written.
files\leases
centrlpe
10/20/95
15
ADDENDUM #1
GUARANTY OF LEASE
This Guaranty of Lease (hereinafter referred to as
"this Guaranty,,), made this ~.wf day of November, 1995, by and
between RONALD HUNZIKER, a resident of Pennsylvania, having an
address at 901 Hawthorn Avenue, Mechanicsburg, PA 17055
hereinafter referred to as "the Guarantor,,) and WINDSOR PARK
SHOPPING CENTERS PARTNERsHIp, a partnership organized and
existing under the law of Maryland having an address at c/o 9183
Reisterstown Road, Owings Mills, Maryland 21117.
Witnesseth, that to induce the Landlord to enter into a
Lease (hereinafter referred to as "the Lease,,) by and between the
Landlord, as landlord, and Central Penn Eyecare (hereinafter
referred to as "the Tenant"), as tenant, covering all of that
real property, situate and lying in Cumberland County,
Pennsylvania, which consists of space having approximately 1200
square feet of floor area located at 5244 Simpson Ferry Road
(hereinafter referred to as "the Premises.), the Guarantor hereby
unconditionally and irrevocably guarantees to the Landlord (1)
the Tenant's due and punctual payment in full (and not merely the
collectibility) of any and all rent and other sums required to be
paid by the Tenant under the provisions of the Lease, (2) the due
and punctual performance (and not merely the enforceability) of
all of the Tenant's other obligations thereunder; and (3) the due
and punctual payment in full (and not merely the collectibility)
of any and all loss, damages or expenses incurred by the Landlord
and arising out of any default by the Tenant in performing any of
its obligations thereunder. The Landlord may, in /ts sole
discretion, and without in any way releasing, altering, impairing
or discharging the Guarantor,s obligations and liability
hereunder, from time to time (1) waive compliance with or any
default under the provisions of the Lease; or (2) modify or
supplement any of the provisions of the Lease; or (3) grant any
extension or renewal of the terms of the Lease or any period
referred to therein; or (4) effect any release, compromise or
settlement in connection therewith; or (5) assign or otherwise
transfer any or all of the Landlord,s interest in the Lease, or
(6) accept or discharge any other person as a guarantor of any or
all of the Tenant's obligations under the provisions of the Lease
or (7) accept or permit any proposed assignment or subletting
under the provisions of the Lease. The Guarantor,s obligations
hereunder (1) shall be unconditional, irrespective of the
enforceability of the Lease, the adequacy of any consideration
given therefor, or any other circumstance which might otherwise
constitute a legal or equitable discharge of a guarantor under
applicable law (provided, however, that no determination by any
court, governmental body or otherwise that any provision of this
Guaranty or of the Lease is invalid or unenforceable in any
instance shall affect the validity or enforceability of (a) any
other provision, or (b) such provision in any circumstances not
controlled by such determination, it being the express intention
of the parties that each such provision shall be valid and
enforceable to the fullest extent allowed by, and shall be
construed wherever possible as being consistent with, applicable
law; (2) shall be primary; and (3) shall not be conditioned upon
the Landlord,s pursuit of any remedy which it has against the
Tenant or any other person with respect to the Lease. It shall
be an event of default under this Gu&~anty permitting the
Landlord to declare a default under the Lease and~pursue all
remedies therefor if the Guarantor (1) applies for or consents to
the appointment of a receiver, liquidator or trustee of the
Guarantor or of all or a substantial part of its assets, (2)
files a voluntary petition in bankruptcy or is generally unable
to pay its debts as they become due, (3) makes an assignment for
the benefit of creditors, (4) files a petition or an answer
seeking a reorganization or an arrangement with creditors or
seeking to take advantage of an insolvency law, (5) performs or
suffers any other act of bankruptcy, reorganizalton or insolvency
16
proceeding or if such petition is not dismissed within sixty (60)
days.
In witness whereof, the Guarantor has executed and
ensealed this Guaranty, the day and ~ar first above written.
STATE OF COUNTY OF TO WIT
I hereby certify that on this __ day of November, 1995,
before me, a Notary Public for the State and County aforesaid,
personally appeared RONALD HUNZIKER, known to me or
satisfactorily proven to be the person whose name is subscribed
to the foregoing instrument, who acknowledged that he is a
resident of the State of Pennsylvania, that he has executed the
foregoing instrument on his behalf for the purposes therein set
forth, and that the same is its act and deed.
In witness whereof, I have set my hand and Notarial Seal,
the day and year first above written.
Notary Public
My commission expires on
17
ADDENDUM #2
GUARANTY OF LEASE
This Guaranty of Lease (hereinafter referred to as
"this Guaranty,,), made this ~n~ day of November, 1995, by and
between DAVID THOMAS, a resident of Pennsylvania, having an
address at 730 Meadow Drive, Camp Hill, PA 17011, hereinafter
referred to as "the Guarantor,,) and WINDSOR PARK SHOPPING CENTERS
PARTNERSHIP, a partnership organized ,and existing under the law
of Maryland having an address at c/o 9183 Reistersto~rn Road,
Owings Mills, Maryland 21117.
Witnesseth, that to induce the Landlord to enter into a
Lease (hereinafter referred to as "the Lease") by and between the
Landlord, as landlord, and Central Penn Eyecare (hereinafter
referred to as "the Tenant"), as tenant, covering all of that
real property, situate and lying in Cumberland County,
Pennsylvania, which consists of space having approximately 1200
sq,/are feet of floor area located at 5244 Simpson Ferry Road
(hereinafter referred to as "the Premises,,), the Guarantor hereby
unconditionally and irrevocably guarantees to the Landlord (1)
the Tenant,s due and punctual payment in full (and not merely the
collectibility) of any and all rent and other sums required to be
paid by the Tenant under the provisions of the Lease, (2). the due
and punctual performance (and not merely the enforceability) of
all of the Tenant,s other obligations thereunder; and (3) the due
and punctual payment in full (and not merely the collectibility)
of any and all loss, damages or expenses incurred by the Landlord
and arising out of any default by the Tenant in performing any of
its obligations thereunder. The Landlord may, in its sole
discretion, and without in any way releasing, altering, impairing
or discharging the Guarantor,s obligations and liability
hereunder, from time to time (1) waive compliance with or any
default under the provisions of the Lease; or (2) modify or
supplement any of the provisions of the Lease; or (3) grant any
extension or renewal of the terms of the Lease or any period
referred to therein; or (4) effect any release, compromise or
settlement in connection therewith; or (5) assign or otherwise
transfer any or all of the Landlord's'interest in the Lease, or
(6) accept or discharge any other person as a guarantor of any or
all of the Tenant,s obligations under the provisions of the Lease
or (7) accept or permit any proposed assignment or subletting
under the provisions of the Lease. The Guarantor,s obligations
hereunder (1) shall be unconditional, irrespective of the ,
enforceability of the Lease, the adequacy of any consideration
given therefor, or any other circumstance which might otherwise
constitute a legal or equitable discharge of a guarantor under
applicable law (provided, however, that no determination by any
court, governmental body or otherwise that any provision of this
Guaranty or of the Lease is invalid or unenforceable in any
instance shall affect the validity or enforceability of (a) any
other provision, or (b) such provision in any circumstances not
controlled by such determination, it being the express intention
of the parties that each such provision shall be valid and
enforceable to the fullest extent allowed by, and shall be
construed wherever possible as being consistent with, applicable
law; (2) shall be primary; and (3) shall not be conditioned upon
the Landlord,s pursuit of any remedy which it has against the
Tenant or any other person with respect to the Lease. It shall
be an event of default under this Guaranty permitting the
Landlord to declare a default under the Lsase and~pursue all
remedies therefor if the Guarantor (1) applies for or consents to
the appointment of a receiver, liquidator or trustee of the
Guarantor or of all or a substantial part of its assets, (2)
files a voluntary petition in bankruptcy or is generally unable
to pay its debts as they become due, (3) makes an assignment for
the benefit of creditors, (4) files a petition or an answer
seeking a reorganization or an arrangement with creditors or
seeking to take advantage of an insoI~ency law, (5) performs or
suffers any other act of bankruptcy, reorganizaiton or insolvency
18
proceeding or if such petition is not dismissed within sixty (60)
days.
In witness whereof, the Guarantor has executed and
ensealed this Guaranty, the day and year first above written.
W~ or A~mEST:
/
STATE OF
COUNTY OF
TO WIT
I hereby certify that on this ~ day of November, 1995,
before me, a Notary Public for the State and County aforesaid, ,
personally appeared DAVID THOMAS, known to me or satisfactorily
proven to be the person whose name is subscribed to the foregoing
instrument, who acknowledged that he is a resident of the State
of Pennsylvania, that he has executed the foregoing instrument on
his behalf for the purposes therein set forth, and that the same
is its act and deed.
In witness whereof, I have set my hand and Notarial Seal,
the day and year first above written.
Notary Public
My commission expires on
19
RULES AND REGULATIONS
1. The sidewalks, halls passages, elevators and
stairways shall not be obstructed by any of the tenants, or used
by them for any other purpose than for ingress and egress to and
from their respective leased premises.
2. Tenants, their clerks or servants, shall not make
or commit any improper noises or disturbances of any kind in the
building, or mark or defile the waterclosets, toilet rooms,
walls, windows, elevators or doors of the building, or interfere
in any way with other tenants or those having business with them.
3. No carpet, rug or other article shall be hung or
shaken out any window or placed in corridors as a door mat, and
nothing shall be thrown or allowed to drop by the tenants, their
clerks or employees, out of the windows or doors, or down
passages or shafts of the building, and no tenants shall sweep or
throw, or permit to be thrown from the leased premises, or any
dirt or other substance into any of the corridors or halls,
elevators, shafts or stairways of said building.
4. The toiletrooms, waterclosets, and other water
apparatus shall not be used for any purpose other than those for
which they were constructed, and no sweeping, rubbish, rags, ,
ashes, chemicals, or the refuse from electric batteries, or other
unsuitable substances, shall be thrown therein. Any damage
resulting from such misuse or abuse shall be borne by tenant by
whom or by whose employees or visitors it shall be caused.
5. No sign, advertisement, or notice shall be
inscribed, painted or affixed on any part of the outside or
inside of said building unless of such color, size, and style,
and in such places upon or in said building as shall be first
designated by Landlord. Signs on doors and windows, where
permitted or required, will be affixed for the tenants by a
contractor approved by Landlord, the cost of the sign and of the
affixing to be paid by tenant.
6. After permission to install telephones, call
boxes, telegraph wires, or other electrical wires has been
granted, Landlord will direct where and how same are to be
placed. No wires shall be run in any part of the building
outside of the leased premises excepting by or under the
direction of Landlord. The attaching of wires to the outside of
the building is absolutely prohibited. No boring or cutting of
floors or partitions for wires is permitted except with prior
written consent of Landlord.
7. Tenants may use their '~wn safes, but Landlord
shall the right to prescribe the weight and proper position of
safes, and no safe shall be hoisted or placed in any part of the
building excepting under the direction of Landlord,s agents. All
damage to the building caused by installing, maintaining or
removing safe, furniture, equipment or other property shall be '
repaired at expense of tenant.
8. Each tenant must, upon termination of his Lease,
surrender all keys delivered to said tenant.
9. Any and all damage to floors, wall~ or ceilings or
to personal property due to tenant or tenant's employees, failure
to shut off running water in any piece of equipment shall be paid
by tenant.
10. Landlord shall have the right to prohibit any
advertising by any tenant which/in Landlord,s opinion, tends to
impair the reputation of the building or its desirability as a
building for offices, and upon written notice from Landlord, such
tenant shall refrain from or discontinue such advertising.
20
11. Landlord assumes no responsibility and shall not
be liable for any damage resulting from the admission of any
unauthorized person to the building.
Wpsopatn
~o/s/gs
21
EXHIBIT
Tud~r Dri~.e ·
To:
10-24-95 0?:2?AM P001 ~23
EXHIBIT B
12,'07/98 )IOY 1~:39 FAI 410 363 675~
DAVID S, BR(m'.k' ENTERPISE
E$¥ABLISHED 193.:
100 Fainters Mill Rozd, Suite 900
P, O. Box 548
Owings MiI13, MD 21117
410-363-3434 / FAX: 410-363-6758
Mr. Ron Hunziker
Mr. Dave Thomas
Central Penn Eyecare
5244 Simpson Ferry Road
Mechanicsburg, PA 17055
RE: Lease
Dear Ron and Dave:
,Iu:I 2~. !998
As amazing as it seems, your inihial three (3) year lease term
shall expire on December 31, 1998. As you know, in Section 42 of
YOUr· Lease, yCZl have a renewal option which musk g~ exercised no
later than six,(6) months prior to the end of your lease term.
That six (6) month period will expire on June 30, 1998. A~ a
courtesy, we are reminding you of this deadline and ~ivin~ you the
option to sign below to exercise the renewal option set forth in
the Lease, If you so choose, please execute a copy of this letter
and return it to us. If you have any questions, please do not
hesitate to contac~ me. We certainly look forward to continuin~
the relation.hip between Windsor Park Shcp~in~ Center and Central
Penn Eyecare.
, , /
~ery u~u !.ySyours'
;:' I/>/'V'L .
The ~ene-¢:al option s~t forth in
November 2, 199~ ~_ __~ , '1' ~ 7~-~-, _z o~ ~ne ~ease date
Partnership -' ~' ~% =~u De~,=en Wlnd~o.~- Oark Shonnln~ P .... d
-.. day of June, 1998 -~ ~ x~ nS~eDy exercised as of thi~
Ro~ Hun?ik, er
,, DEC 0-2
Sent by: WZX WENGER WEZDNER- 7172344224; 12/05/01
9:44AM;Jet'~-.~t,#359;Page 8/8
VERIFICATION
1, Elena Roberts, Commercial Lease Administrator for Plaintiff in the foregoing
Complaint, have read the foregoing Complaint and hereby affirm and verify that it is true
and correct to the best of my personal knowledge, information and belief. I verify that all
ot the statements made in the foregoing Complaint are true and correct and that false
statements made therein may subject me to the penalties of 18 Pa.C.S.A. Section 4904,
relating to unsworn falsification to authorities.
WINDSOR PARK SHOPPING CENTERS
PARTNERSHIP, LLP
Elena Roberts
SHERIFF'S RETURN - REGULAR
CAJE NO: 2001-07089 P
COMMONWEALTH OF PENNSYLVANIA:
COUNTY OF CUMBERLAND
WINDSOR PARK SHOPPING CENTERS
VS
HUNKIZIKER RONALD ET AL
BRYAN WARD , Sheriff or Deputy Sheriff of
Cumberland County, Pennsylvania, who being duly sworn according to law,
says, the within COMPLAINT & NOTICE was served upon
THOMAS DAVID S the
DEFENDANT at
at 730 MEADOW DRIVE
1450:00 HOURS,
on the 20th day of December , 2001
CAMP HILL, PA 17011 by handing to
DAVID S. THOMAS
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 9.75
Affidavit .00
Surcharge 10.00
.00
25.75
Sworn and Subscribed to before
me this ~ ~' day of
~ ...... ~2~ A.D.
! ;Protllonot~ry ' ~
So Answers:
R. Thomas Kline
12/26/2001
WIX WENGER & WEIDNER
De~-~Sh~riff
SHERIFF'S RETURN
CA~E NO: 2001-07089 P
COMMONWEALTH OF PENNSYLVA~NIA:
COUNTY OF CUMBERLA/qD
WINDSOR PARK SHOPPING CENTERS
VS
HUNKIZIKER RONALD ET AL
- REGULAR
BRYAN WARD , Sheriff or Deputy Sheriff of
Cumberland County, Pennsylvania, who being duly sworn according to law,
says, the within COMPLAINT & NOTICE was served upon
HUNZIKER RONALD J the
DEFENDANT at 0930:00 HOURS, on the 20th day of December , 2001
at 5250 SIMPSON FERRY ROAD
MECHANICSBURG, PA 17055 by handing to
RONALD HUNZIKER
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 18.00
Service 7.15
Affidavit .00
Surcharge 10.00
.00
35.15
Sworn and Subscribed to before
me this ~ day of
Z~ j~2~ A.D.
/ /Prothonotary' ~ ~
So Answers:
R. Thomas Kline
12/26/2001
WIX WENGER & W/~NER ff~-~
SHERIFF'S RETURN
CA~E NO: 2001-07089 P
COMMONWEALTH OF PENNSYLVANIA:
COUNTY OF CUMBERLAND
WINDSOR PARK SHOPPING CENTERS
VS
HUNKIZIKER RONALD ET AL
- REGULAR
BRYAN WARD , Sheriff or Deputy Sheriff of
Cumberland County, Pennsylvania, who being duly sworn according to law,
says, the within COMPLAINT & NOTICE was served upon
THOMAS MICHELLE A IND AND T/A CENTRAL PENN EYECARE the
DEFENDANT , at 1450:00 HOURS, on the 20th day of December
at 730 MEADOW DRIVE
2001
CA/~P HILL, PA 17011 by handing to
DAVID S. THOMAS, ADULT IN CHARGE
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 10.00
.00
16.00
Sworn and Subscribed to before
me this ~-- day of
~l~o2-~ A.D.
t t Pr6th~n6i~
So Answers:
R. Thomas Kline
12/26/2001
WIX WENGER & WEIDNER
Dep~y ShAri'~f
WINDSOR PARK SHOPPING
CENTERS PARTNERSHIP, LLP,
Plaintiff
RONALD J. HUNZlKER, DAVID S.
THOMAS AND MICHELLE A.
THOMAS, individually and tJa
CENTRAL PENN EYECARE,
Defendants
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PENNSYLVANIA
NO. 01-7089
CIVIL ACTION - LAW
JURY TRIAL DEMANDED
PRAECIPE FOR ENTRY OF JUDGMENT BY DEFAULT
TO THE PROTHONOTARY:
Please enter judgment by default in favor of Plaintiff and against Defendant,
Roneld J. Hunziker only, for his failure to plead to the Complaint in this action within the
required time. The Complaint, which was filed on December 18, 2001, contained a Notice
to Defend the action within 20 days from the date of service thereof. Defendant was
served with the Complaint on December 20, 2001, and his answer was due to be filed on
January 9, 2001.
Attached as Exhibit A is a copy of Plaintiff's written Notice of Default in accordance
with Pa.R.C.P. 237.1, which I certify was mailed by regular mail to the Defendant at his
last known address on January 14, 2002, which is at least ten days prior to the filing of this
Praecipe. Defendants have failed to appear or take any action.
Please assess damages in the amount of $12,406.48, being the amount demanded
in the Complaint, plus costs, attorney's fees and interest./
/
Respecffull~bmitted,
w,x,w
508 ~rth Second Street
P.O. Box 846
Harrisburg, PA 17108-0845
(717) 234-4182
Attorneys for Plaintiff
DATE: January 25, 2002
EXHIBIT"A"
WINDSOR PARK SHOPPING
CENTERS PARTNERSHIP, LLP,
Plaintiff
Vo
RONALD J. HUNZIKER, DAVID S.
THOMAS AND MICHELLE A.
THOMAS, individually and
CENTRAL PENN EYECARE,
Defendants
: IN THE COURT OF COMMON PLEAS
: CUMBERLAND COUNTY, PENNSYLVANIA
: NO. 01-7089
: CIVIL ACTION - LAW
: JURY TRIAL DEMANDED
TO:
Defendants, David S. and Michelle A. Thomas, individually and t/a Central
Penn Eyecare, and their attorney, Joseph A. Hitchings, Esquire, Saidis,
Shuff, Flower & Lindsay, and Defendant, Ronald J. Hunziker, individually
and t/a Central Penn Eyecare
IMPORTANT NOTICE
YOU ARE iN DEFAULT BECAUSE YOU HAVE FAILED TO TAKE
ACTION REQUIRED OF YOU IN THIS CASE. 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 WHETHER YOU CAN
GET LEGAL HELP:
DATE: January 14, 2002
Cumberland County Lawyer Referral Service
Court Administrator
Cumberland County Courthouse
One Courthouse Square
Carlisle, PA 17013
/
(717) 240-6200
////
WIX, ~,L;~-~E ~h,VVEIDNER
Y5S~o ~R~ ~jIIjoanmdS~lt'rDe ;)t~ 62051
P,O. Box 845
Harrisburg, PA 17108-0845
(717) 234-4182
Attorneys for Plaintiff
WINDSOR PARK SHOPPING
CENTERS PARTNERSHIP, LLP,
Plaintiff
RONALD J. HUNZIKER, DAVID S.
THOMAS AND MICHELLE A.
THOMAS, individually and t/a
CENTRAL PENN EYECARE,
Defendants
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PENNSYLVANIA
NO. 01-7089
CIVIL ACTION - LAW
JURY TRIAL DEMANDED
NOTIClA IMPORTANTE
USTED HA NO 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 QUE UN FALLO SERIA REGISTRADO CONTRA USTED SIN
UNA AUDIENCIA Y USTED PODRIA PERDER SU PROPIEDAD O OTROS
DERECHOS IMPORTANTES. USTED DEBE LLEVAR ESTA NOTICIA A SU
ABOGADO EN SEGUIDA. SI USTED NO TIENE ABOGADO O NO TIENE CON QUE
PAGAR LOS SERVICIOS DE UN ABOGADO, VAYA O LLAME A LA OFIClNA
ESCRITA ABA JO PARA AVERIGUAR A DONDE USTED PUEDE OBTENER LA
AYUDA LEGAL:
Cumberland County Lawyer Referral Service
Court Administrator
Cumberland County Courthouse
One Courthouse Square
Carlisle, PA 17013
(717) 240-6200
WINDSOR PARK SHOPPING
CENTERS PARTNERSHIP, LLP,
Plaintiff
RONALD J. HUNZIKER, DAVID S.
THOMAS AND MICHELLE A.
THOMAS, individually and Fa
CENTRAL PENN EYECARE,
Defendants
iN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PENNSYLVANIA
NO. 01-7089
CIVIL ACTION - LAW
JURY TRIAL DEMANDED
CERTIFICATE OF SERVlCF
I hereby certify that the foregoing Notice was sent by first class, postage
prepaid mail this day to the following:
David Si & Michelle A. Thomas, individually and
t/a Central Penn Eyecare
730 Meadow Drive
Camp Hill, PA 17011.
Joseph A. Hitchings, Esquire
Saidis, Shuff, Flower & Lindsay, P.C.
26 West High Street
Carlisle, PA 17013
Ronald J. Hunziker, individually and
t/a Central Penn Eyecare
c/o Post Masters
5250 Simpson Ferry Road
Mechanicsburg, PA 17055
WiX, WEI~GER & WEIDNER
' ? /"~! ~ ,~-¥ t
Lea"/(nn ~Crider, Paralegal
508 North Second Street
P.O. Box 845
Harrisburg, PA 17108~0845
(717) 234-4182
DATE: January 14, 2002
F:~srv,&1742 (DAVID S BROWN)\10797 (WINDSOR PARK v. CENTRAL PENN EYECARE)\DOCUMENTS\DEFAULT NOTICE1-
14.02.doc
~ ~0 ~ ~
WINDSOR PARK SHOPPING
CENTERS PARTNERSHIP, LLP,
Plaintiff
V,
RONALD J. HUNZIKER, DAVID S.
THOMAS AND MICHELLE A.
THOMAS, individually and t/a
CENTRAL PENN EYECARE,
Defendants
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PENNSYLVANIA
NO. 01-7089
CIVIL ACTION ~ LAW
JURY TRIAL DEMANDED
To: Ronald J. Hunziker, Defendant
You are hereby notified that one, 2002, the following ~grder--~ {Beeree~
(Judgment) has been entered against you in the above-captioned case.
$12,406.48 plus costs, attorney's fees and interest
Prothonotary ~" /
I hereby certify that the name and address of the proper person(s) to receive this notice is:
Ronald J. Hunziker
C/o Post Masters
5250 Simpson Ferry Road
Mechanicsburg, PA 17055
A: Ronald J. Hunziker, Defendido/a
Defendidos/as
Por este medio se le esta notificando que el de del 2002, el/la siguiente
(E)rde~), (E)eerete), (Pallo) ha sido anotado en contra suya en el caso mencionado en el epigrafe.
FECHA:
Prothonotario
Certifico que la siguiente direccion es la del defendido/a segun indicada en el certificado de
residencia:
Ronald J. Hunziker
C/o Post Masters
5250 Simpson Ferry Road
Mechanicsburg, PA 17055
Abogado del Demandante
WINDSOR PARK SHOPPING
CENTERS PARTNERSHIP, LLP,
Plaintiff
RONALD J. HUNZIKER, DAVID S.
THOMAS AND MICHELLE A.
THOMAS, individually and t/a
CENTRAL PENN EYECARE,
Defendants
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PENNSYLVANIA
NO. 01-7089
CIVIL ACTION - LAW
JURY TRIAL DEMANDED
PRAECIPE
TO THE PROTHONOTARY:
Please note in the docket of this case that Plaintiff has withdrawn this Complaint as
to Michelle A. Thomas, only.
Respectfully S~ted,
~'tev~ R. Williams, I.D. #62051 ~'
508 ~rth Second Street
P.O. Box 845
Harrisburg, PA 17108-0845
(717) 234-4182
Attorneys for Plaintiff
DATE: January 29, 2002
F:~srw~1742 (DAVID S BROWN)\10797 (WINDSOR PARK v. CENTRAL PENN EYECARE)\DOCUMENTS\REMOVAL OF
DEFENDANT, MICHELLE THOMAS1-29.02.doc
~ ..,<