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Home My WebLink About02-0139Johnson, Duffle, Stewart & Weidner By: David J. Lanza I.D. No. 55782 301 Market Street P. O. Box 109 Lemoyne, Pennsylvania 17043 -0109 (717) 761-4540 Attomeys for Plaintiff HARRY L. STEPHENSON, II, Plaintiff V. GERALD STEVENS PITTSBURGH, INC. and THOMAS ROYER, Defendants IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. CIVIL ACTION - LAW NOTICE TO DEFEND To the Defendant: 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 and notice are served, by entering a written appearance personally or by attorney and filing in writing with the court your defense 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 complaint or for any other claim or relief requested by the Plaintiff. You may lose money or property or other rights important to you. YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER OR CANNOT AFFORD ONE, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW TO FIND OUT WHERE YOU CAN GET LEGAL HELP. Cumberland County Bar Association 2 Liberty A venue Carlisle, Pennsylvania 17013 Telephone: (717) 249-3166 Johnson, Duffle, Stewart & Weidner By: David J. Lanza I.D. No. 55782 301 Market Street P. O. Box 109 Lemoyne, Pennsylvania 17043-0109 (717) 761-4540 Attorneys for Plaintiff HARRY L. STEPHENSON, II, Plaintiff V. GERALD STEVENS PITTSBURGH, INC. and THOMAS ROYER, Defendants IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA No. CIVIL ACTION - LAW AND NOW, this ~r{'~- day of January 2002, comes the Plaintiff, HARRY L. STEPHENSON, II, by and through his undersigned attorneys, Johnson, Duffle, Stewart & Weidner, and files this Complaint, and in support thereof avers as follows: 1. The Plaintiff, HARRY L. STEPHENSON, II, is an adult individual with an address at 1477 Hillcrest Court, Camp Hill, Cumberland County, Pennsylvania 17011. 2. The Defendant, GERALD STEVENS PITTSBURGH, INC., is a Pennsylvania corporation conducting business in Cumberland County, Pennsylvania, with an address at 1800 Eller Drive, Suite 300, Fort Lauderdale, Florida 33316. 3. The Defendant, THOMAS ROYER, is an adult individual with an address cio 810 S. 12th Street, Lebanon, Lebanon County, Pennsylvania 17042. 4. On or about December 9, 1999, Plaintiff and Defendant Gerald Stevens Pittsburgh, Inc. ("Gerald Stevens"), entered into a Lease whereby Defendant agreed to lease from Plaintiff real property situate in Washington Township, York County. A true and correct copy of the Lease (including a description of the premises) is attached hereto as Exhibit "A." 5. Plaintiff is the Assignee of the Lease in question, as set forth in the Assignment attached hereto as Exhibit "B." 6. Defendant Gerald Stevens is in breach of its obligations under the aforesaid Lease by virtue of Defendant's conduct in damaging the premises upon termination of the Lease. 7. Defendant Gerald Stevens is in breach of its obligations under the aforesaid Lease by virtue of Defendant's improper removal and conversion of fixtures situate on the aforesaid premises. 8. Defendant Gerald Stevens is in breach of its obligations under the aforesaid Lease by virtue of its removal and conversion of nine (9) benches affixed to the leased premises and the heating system and related materials. 9. The aforesaid benches and heating system constituted unique items necessary for the operation of the greenhouses situate on the aforesaid premises. 10. Plaintiff has been damaged in the amount of $13,670.00, calculated as follows: Bench Replacement Materials Heating System Replacement Materials Labor to Replace and Repair Converted Items Total Costs: $ 9,870.00 $ 2,300.00 $ 1.500.00 $13,670.00 11. All such conduct on the part of Defendant has occurred after the filing of Defendant's bankruptcy petition, thus removing from Defendant the protection of the bankruptcy laws. COUNT I BREACH OF CONTRACT Stephenson v. Gerald Stevens Pittsburgh, Inc. 12. Paragraphs one (1) through eleven (11) are hereby incorporated as if fully set forth herein. 13. The aforesaid conduct on the part of Defendant constitutes breach of contract, thus entitling Plaintiff to damages as set forth above. WHEREFORE, Plaintiff demands judgment against Defendant Gerald Stevens in the amount of Thirteen Thousand Six Hundred Seventy and 00/100 Dollars ($13,670.00). COUNT II CONVERSION Stephenson v. Gerald Stevens Pittsburgh, Inc., and Thomas Royer 14. Paragraphs one (1) through thirteen (13) are hereby incorporated as if fully set forth herein. 15. The aforesaid conduct on the part of Defendants constitute conversion of Plaintiff's real property and fixtures, thus entitling Plaintiff to damages as set forth above. 16. Defendant Royer authorized and committed such conduct as the local manager of Defendant Gerald Stevens Pittsburgh, Inc. WHEREFORE, Plaintiff demands judgment against Defendants Gerald Stevens and Royer in the amount of Thirteen Thousand Six Hundred Seventy and 00/100 Dollars ($13,670.00). :151941 Respectfully submitted, JOHNSON, DUFFLE, STEWART & WEIDNER David J. Lanza Attorney I.D. No. 55782 301 Market Street P.O. Box 109 Lemoyne, PA 17043-0109 Telephone (717) 761-4540 Attorneys for Plaintiff I, HARRY L. STEPHENSON, II, verify that the statements made in this Complaint are true and correct to the best of my knowledge, information and belief. I understand that false statements made herein are made subject to the penalties of 18 Pa. C.S.^. §4904, relating to unsworn falsification to authorities. Date: // Han3~L.-Stephens~n, II Exhibit A GERA_._L_.D. ~TANDARD LEASE AGREEMENT THIS LEASE AGREE~NT (the '`Lease'~ is made this q)~day o~ December, 1999, by and between HAEKY L. STEPHENSON, H and ~ANET L STEPHENSON ('~.mndlord"), and GERALD STEVENS P1TrSBLrKGH, INC., a Pennsylvania corporation, and/or its assigns ('~ren.~'). RECITAI~S: w~qEREAS, Landlord is the owner of certain real property which is more particularly descn'bed on Exlu~it "A' attached hereto and made a part hereof (the '~Property"); and W~q~.REAS, Landlord has agreed to lease to Tenant the Property, together with all buildings and improvements located thereon and all rights appurtenant thereto (collectively, the "Premises"); end W~qqr~REAS, Tenant has agreed to lease the Premises from Landlord upon the terms and conditions as stated in this Lease. NOW Tlq'EREFORE, fOr end in consideration of the mutual covenants and agreements herein contained, and for other good and valuable consideration exchanged between the part/es, the receipt and sufficiency of which is acknowledged by each, the parties hereby agree as follows: SECTION 1 1.1 Landlord Landlord warrants that it owns the Premises and has full right and power to execute and deliver this Lease without the co,~sent or agreement of any other person, and that those persons executing this Lease on behalf of Landlord have the right and power to execute and deliver this Lease. 1.2 Te~t Tens,at warrants that Ten.,,t has full fight and power to execute and deliver ,h~ Lease without the consent or agreement of any other person, and that those persons who have executed and delivered th~.~ Lease have the authority end power to execute ~ Lease on Tenant's behalf and deliver this Lease to Landlord. SECTION 2 2.1 Pre, es. Landlord leases to Tenant and Tenant hereby rents from Landlord the Premises. 2.2 ~. Landlord alFees to warrant and defend Tenant in the quiet enjoyment, possession and occupancy of the Premises during the term of this Lease so long as Tenant complies with the provisions hereof. SECTION 3 TERM: OPTION TO EXTEND 3.1 Term. The initial term of this Lease shall be as set.foxth in the Addendum to Standard Lease Agreement of even dated herewith, annexed hereto and made a part hereof (the "Addendum"). The date of commencement of thi~ Lease shall hereinafter be referred to as the "Lease Commencement Date", and the date of temaination of thi~ Lease shall hereinafter be referred to as the "Lease Termination Date". The in/tial term, together with any extension(s) thereof, including any applicable Extension Term(s) (as defined in the Addendum) shall hare~na~ter be collectively refer~ed to as the "Term". Landlord shall deliver to Tenant possession of the Premises on the Lease Commencement Date. 3.2 ~ Tenant shah have the right to extend the Term of th{~ Lease as more specifically set forth in the Addendum. 3.3 ~. Te~,~t shall have the absolute right to ten~inate this Lease at any time during the lease upon nine (9) months prior written notice sent to Landlord in accord,ncc with Section 12.3 hereof. 3.4 ~. If any payments, fights or obligations hereunder (whether relating to payment of rent, taxes, insurance, other impositions, or to any other provision of this Lease) relate to any period in part either before the Lease Commencement Date or after the date of expiration or termination of the Term, appropriate adjustments and prorations shall be made. 3 5 Surre~e.r at Rnd'of Ten~ Upon the expiration date of the Term or upon the earlier termination of this Lease p. ur~.~t ' . . ~ ...... ~ _ _ ~ .~: .... ~ T o,,~r~ the Prem~es all bu0dines and improvements thereon, other than to the provisions nereoI~ lenalll ~ ~llrel~uca m. ru ~v~.~ ~, ~. ..... , · Tenant's Property (as hereinafter defined), without delay, broom clean and in good order, condition and repair, reasonable wear and tear .and dsmsge due to casualty excepted, whereupon Tenant shall have no further right, title or interest in and t9 said premises. SECTION 4 4.1 Rent. Commencing on the Lease Commencement Date, Te,~snt covenants and agrees to pay to Landlord in lawful money of the United States of America, during each Lease Year (as defined herein), an ~ntml rental in the amount as set forth in the Addendum (the '~'nt'3. The Rent shall be payable in equal monthly instn!lments, in advance, on or before the first day of each and every calendar month of the Term of this Lease. The Rent shall be paid in addition to and over and above all other payme, nts to be made by Tenant herein. The first lease year shall be a full year commencing on the Lease Commencement Date and each following lease year shall be au annual period commencing on the nnnlversary date of the Lease Commencement Date (each such snnual period during the Term referred to herein as a "Lease Year"). Appwpriate proration shall be ma& if the Lease Commencement Date is not on the first day of a calendar mouth, or if the date of termi-ntlon of the Lease is not on the last day of a calendar month. 4.2 Taxes. (1) Tenant shall be respous~le for the payment, prior to delinquency, of all Real Estate Taxes (as defined herein) with respect to the Premises. Except as otherwise provided herein, "Real Estate Taxes" shall include real property taxes and assessments levied against the Premises by any govermnental or quasi-governmental authority with jurisdiction, which are due and payable during tbe Term hereof, together with any other taxes, assessmen~ and surcharges of a nature not presently in effect which sh~ll hereinafter be levied on the Premises Coy any governmental or quasi-governmental authority with jurisdiction) as a result of the use, ownership or operation of the Premises, whether in lieu of or in addition to any ctm-ent real estate taxes and assessments. As to any special assessments which shall become due during the Term hereof, the same shall be amortized over the maximum period allowed by law or applicable tax rules, whichever is longer, and Real Estate Taxes shall include only the prorated and amortized amount of such special assessroents; provided however, if any special assessment for a public improvement is assessed against the Premises during the Term hereof, Tenant shall be responsible for only that portion of the assessment allocable to the Tenant based on the length of time that a benefit Ls derived by the Tenant during the Term of the Lease calculated agsln~t the useful life of the improvement Real Estate Taxes shall not include (i) any income, excess profit, single business, inheritance, succession, transfer, gift, franchise, capital or other tax assessments upon Landlord or Landlord's interest in the Premises, or (ii) any assessments for improvements which are levied prior to the Lease Commencement Date. (2) Tenant shall remit all payments for Real Estate Taxes directly to the taxing or assessing authority. Upon receipt of any tax bill and/or assessment bill attributed to any calendar year during the Term hereof, Landlord shall furnish Tenant with a · copy thereof in such time so as to allow Tenant to take advantage of the maximum payment discount available, if Tenant so desires. (3) .Tenant shall have the right to contest the amount or validity, in whole or in part, of any tax that Tenant is required to pay, in whole or in part, by appropriate proceedings diligently conducted in good faith, only after paying such tax or posting such seCUn'ty that Landlord reasonably requires in order to protect the Premises against loss or forfeiture. Upon the conclusion of any such protest proceedings, Tenant will pay its share of the tax, as finally determined, in accordance with this Lease, the payment of which tax may have been deferred ditring the prosecution of the proceedings, together with any costs, fees, interest, penalties, or other related liabilities. Landlord will not be required to join in any contest or proceedings unless the provisions of any law or regulations then in effect require that Landlorcl initiate or otherwise join in such proceedings. In that event, Landlord willjoinin the proceeSings or permit them to be brought in its name and shall take such action as m~y be reasonably necessary to effectuate the same; however, Landlord will not be subjected to any liability for the payment of any costs or expenses in connection with any such contest or proceedings, and Tenant will indemnify Landlord against and save Landlord harmless from any costs and expenses in this regard. (1) Tenant agrees that Landlord shall not be liable for failure to supply any heating, ak conditioning, electrical, janitorial, lighting or other services. In the event of auy interruption, reduction or discontinuance of services (either temporarily .or permanently), Landlord shall not be liable for tlzmages to persons or property as a result thereof, nor shall the occurrence of any such 2 event in any way be construed as an eviction of Tenant. Notwithstanding thc foregoing, if any such services are not supplied for a period excee~h~ three (3) consecutive business days not due to an act or omission of Tenant, and as a result of such lack of Service, Tenant is unable to use t~e prerni~es for its intended use, Tenant shall be entitled to an abatement of Rent and other charges due hereunder, be~,/n~ng with the fourth (4th) day, in such ~mount not to exceed the per diem amount of Rent and such other charges, as wili fakly . compensate Te~,~t for the inconvenience and loss of business resulting from the hck of such services. If an inten-uption of services ' which mater/ally affects Tenant's use and enjoyment of the l>remises continues for more thsn thirty (30) consecutive calandar days, and such interntption/s not due to an act or o,~i~sion of Tenant, Tenant shall have the right to terminate this Lease upon written notice to Landlord. (2) Tenant shall pay for all water, gas, heat, light, power, telephone, wash disposal and o~er utilities and services supplied to the Premis'es, together with an~, taxes thereon. SECTION 5 USE: COI~IPLIANCE WITH LAWS: MAINTENANCE AND REPAIPS 5.1 ~. Tenant shall have the right to use the Premises for any lawful purpose. Tensnt shall not cornrrdt waste on the Premises and shall not use the Premises for any unlawful or knproper purpose or for any ptnpose which may constitute a nuisance, public or private, nor suffer any ~,%~erous article to be brought on the Premises ~mless safeguarded as required by law. 5.2 Condition of the Premises. Landlord represents and warrants that, as of the Lease Commencemant Date, all parking and structural parts of the premises, including without limitation, the foundation, roof, exterior walls, plumbing, electrical and other mechanical systems (a) meet and comply w/th all federal, state and local hws, ordinances and regulations, inclvding; without ]imltatian the Americans with Disabilities Act or other similar laws, and (b) are seismically and otherwise sound and in good, workable and s~it~y order, condition and repair at the time of delivery of the Premises to Ten~,~t. Landlord sh,ll correct any latent defects in or about the Fie~iises promptly after Tenant notifies Landlord of any such defect. Landlord represents and warrants that it has disclosed to Tenant any conditions or exclusive use restrictions within Landlord's knowledge that would adversely affect Tenant's store design, permitting and use as cont~-~iplated by this Lease. ~,~_~/i~. Except as otherwise provided herein, Tenant shall reasonably, promptly and effectively comply with dl applicable and lawful statutes, regulations, rules, ordinances, orders and requirenmnts of any public official or governmental or quasi-governmental agency or authority having jurisdiction pertaining to (a) the physical condition of any impwvements · constructed b~ Ten_,,~t in the Premises, or (b) Tenant's business operations in the Premises, and Landlord shall promptly give notice to Tenant of any written notice from such governmental authorities relatk~ thereto; provided however, Tenant shall not be required to make any seismic or structural upgrades, repairs, improvements or alterations to the Premises in order to comply with the requirements of*hi~ Section. Landlord, at its sole cost and expense, shall coxuply with all other laws, niles, regulations, and ordinances made by any ....... with Disabilities Act of I990 (as governmental authority affecting or relating to the Pre.,~!ses including, without lira/tat/on, the Amen~ea~airs, alterations and improvements the sa,ne may be amended f/om time to time), and sh_~l! perform any and all necessary maintenance, necessa~ to comply with the same. Landlord fu~her acknowledges and agrees that, with respect to Te~,~t's obligations under this Section, Tenant may, in good faith, dispute the val/dity of any complaint or action taken by any applicable agency or authority, defend ag,ln~t the same, ~d in good faith diligently conduct any necessary proceedings to prevent and avoid any adve~e consequence of the S~. ' ense kee the premises and a11 nnprovements (,t any) m gooa oraer, conmuoa ~ Lease, Tenant shall, at Te,~nt s sole cost and exp , p ~ repai~ and shall make or cause to be made all repa/rs to correct any damage thereto. Notwithstanding anything to the contrary set forth herein, in no event shall Tenant be respons~le in any way for any of the following: (1) any repairs or other work occasioned by fire, windstorm or other insured casualty, (2) any r~airs or rebnildlng necessitated by condemnation, (3) any repairs or other work necessitated by any act or omission of Landlord, its a§ents, employees and/or representatives, including without limitation, the faihire of Landlord to perform its obli§ations hereunder or under any other written agreement between Landlord and Tenant, (4) any seismic or structural upgrades, repairs, improvements or alterations to the Premises, or ($) any environmental investilation or remediation on, in or under the prer~/ses not resuitin~ from the acts or omissions of Tenant, its agents and contractors, inchidin~ without limitation, any costs ~elating thereto. 5.5 l~l'~'['nf~nnncc, Rc~alr and R~lac~ment by Landlord. L~ord s~ b~ ~om~le, at i~ solo co~ ~d ~p~e, for ~ten~ce, rep~ ~d r~lacemc~t of (a) ~ ~d ~ ~c~ co~onen~ ~clu~g, ~out llmi~o~ ~e roo~ rooftree, cove~g (~clu~ing ~teHor ce~ ~ ~nmaged by ledge), load be~ ~ ~d floor s~bs ad ~o~ wnll~ ~d fo~o~, e~or pa~ (c) ~ plumb~g s~te~ (d) ~c el~cal ~ste~ (e) ~e u~ ~ ~d co~c~o~ ~ ~e Pries, (~ ~ ~ · ~, ff ~y, ~d ~) ~e p~ng ~as, l~caped ~e~, si~a~ ~d ~v~a~. F~er, ~ord sha~ be ~pom~le for ~e ' mplac~en~ maint~nnce ~d r~ak of~c ~jor p~ of~c hea~g, venffia~on, ~d ~ co~o~ing ~ ~ord shall ~o ~ak ~d ~in ~ p~ ~e~, si&~, l~&cap~g ~d ~ge syste~ on or about ~ Pm~es. ~ co~ ~ ~pect forego~g s~E be borne solely by ~ord, ~ord sME ~ ~ r~ mq~d ~dcr ~s Scc~on promptly ~r ~ord le~ of ~e need for ~ch r~, but ~ ~y ~vem ~thln ~ (30) &ys ~ T~nt no~ L~ord of ~e need for such r~. ~ ~e ev~t ~ord fa~ ~ such rcpaks within ~ch ~ (30) ~y p~o~ T~nt ~y, at i~ op~o~ ~dd~e ~ repa~ ~d deduct ~ cos~ ~d c~mes ~eto ~om ~c ~t~llm~ of~nt next due ~d o~g. No~g ~e forego~, ~ ~e event of ~ e~g~cy, Te~nt ~y glw Lan~ord su~ sho~er no~ ~ oppo~ to rep~ as ~y be re~o~bly p~cable ~d~ ~e c~ms~c~, ~d upon ~ord's ~ to ~e ~e r~ ~ ~e ~e ~o~d ~ such no~ce, Tenet ~y ~ly ~dc~e such ~ ~d deduct ~ cos~ ~d c~em~ rela~g ~emto ~m ~ta~ of~nt next duc ~d o~g. SEC~ON 6 ~TIONS: L~NS: SIGNAGE 6.1 ~. T~n~t s~ll not ~e ~y s~c~ ~te~om ~ ~e ~ises exceedln~ $25,000 ~out ~ord's prior ~n comen~ not m be ~onably ~el~ con~on~ or &layed. Te~t sh~ll have ~e ~t ~ ~e ~tefior s~c~l alSo,om ~dcr $25,000, ~d ~y non-s~c~l ~tera~om, wi~out ~ord's comenh 6.2 ~. A~ p~o~ ~ put on no~cc of ~e fact ~t ~ Te~t ~&r no ck~mces s~ have ~e pow~ to subject ~ ~tcrcst of ~e ~ord ~ &e pmmlses to ~y ~chnnic's or ~~'s ~en or h~ of ~y ~nd. ~ pe~ who o~er of ~e T~t or ~y p~on d~ ~e l~e of this ~e, ~y ~h work se~ic~ or ~st~ m ~e ~ upon ~e m~st or cl~imin~ ~der, by or ~ough ~e Tennn~ mint look who~y to ~ ~temst of ~e Te~t ~d not ~ ~at of &e ~or& Te~t coven~ ~d agces ~ ~ord ~at Tenmt ~I not pe~t or s~er to bc ~ed or claimed agslnst ~ ~tem~ of ~e ~o~ ~mises d~g ~e conduce of this ~as~ ~y ECn or licm of ~y ~d by ~y pc~on cl~imln~ ~der, by, ~u~ or against Tenant; ~d ~ ~y such ~en ~ c~cd or ~ it s~ be ~ du~ of ~ Ten~n~ ~thln s~ (60) &~ ~ ~e claim ofh~n ~ suit ch~ a ~n h~ be~ ~ff~ to came ~e Pre~ to be relem~d ~om ~ch cl~ ei~ ~ough pa~ent or ~ough bon~g wi~ co. orate ~ or ~ugh d~osit ~to co~ p~t to s~, of ~e necess~ su~ of money, or ~ ~y o~ ~y ~t ~ ~ffcct release of ~e ~ord's ~t~t ~ ~e Pries ~om ~ch cla~ 6.3 Si~aec. Ho~g ~g to ~e con~ set fo~ ~ ~ ~e, T~t s~ ~ve ~ absolute fi~t to such si~ag~ on or ~bout ~c Pre. es ~ Te~nt ~y de~ necess~ or approp~te, subject to approp~a~ gov~ffi a~rova~, Lan~ord agecs to ~y coopera~ ~ Tenet ~ t~g ay re~d si~ge apphca~o~ pe~t ~or v~ce for s~d si~ge or respe~ ~ ~e Pr~s g~y. 6.4 Te.~nt's Prope~. ~ personal prop~, ~hings, ~chine~, ~ade f=~es, eq~pment ~d ~prowments (~adc or o~e~ise), ~clud~g ~out llmi~on all sig~ge, w~ch Te~t ~lls ~, on or about ~e Pre~es ("T~t's Propc~") · sM~, at ~1 ~cs, re~ ~e prope~ of Tenan~ ~d upon ~e exp~on or e~Her te~ins~on of~e Tc~ of~ Lease, Te~t may rcmow Tenant's Propc~ ~om ~c Pm~ses. L~ord hereby ac~owledges ~d ag~ ~at Te~t s~ a~o ~vc ~ ~ght remove ~y ~d aH s~c~l ite~ ~d ~provemen~ ~t~cd upon or about ~e Pre.cs w~ch are ~ca~ve or ~sociated ~th Te~nt's b~ess, ~ Tenant bellows reasonably ncccss~ or approp~ for ~c protec~on of T~t's ~ter~st any ~adc~r~, ~adc~cs, s~icc m~ ~or cop~gh~ o~d or ~ed by Tenet or o~e~se ~sociated ~ Tenet or any of Tenant's p~n~, ~tcs, subsidies ~or ~y o~cr co~ora~on or bus.ess ~t~ wi~ w~ch T~n~t ~y hereafter merge or consolidate; provided howewr, Tenet hereby a~cs ~at it shag rcpak ~y ~agc to ~c Prc~s caused by such removal. SEC~ON ~ 7.1 T~ of Instance. Tenet shall, at i~ o~ cost ~d ~xpcme, c~ ~e fo~o~g ~cc ~ respect of ~e Presses ~d ~prowm~n~: (1) Compr~hcmiw pubhc hab~ ~ce ~ ~ ~o~t not less ~ $1,000,000.00 comb~cd bo~y ~d prope~ ~ge ~ab~. (2) With respect to improvements (if any), inaunmce against lass or damage by fire and other risks covgr~ by insurance with extended coverage endorsements in an amount of thc full insurable ~eplacament value of such improvements (exclusive of cost of excavation, foundation, and footings below the ground floor and without deduction for depreciation) and in amounts sufficient to prevent Landlord or Tenant fxom becoming a co-insurer under such policies of insurance. 7.2 ~rovisions Applicable to All Insurance. With respect to all instance rcciuirod to be maintained herennder by Tenant: (1) Each such policy shall name Landlord, Ten,ut and any mortgagee as insured as their interests appear and shall contain a Standard Mortgagee Clause reasonably satisf'dctory to Landlord. (2) Tenant shnllf at'Ttm~nt's sole cost and expense, observe and comply with all policies of insurance in for~e with respect to the Premises and improvements. (3) Upon Landlord's request,.Tenant sh~ll send to Landlord certificates of insurance or receipts or other evidence satisfactory to Landlord showing thc payments of all premiums and other charges due thereon. 7.3 I analord's Right to Obtain Insurance. If Tenant shall fail to m~intain any such insurance required hereunder, Landlord may, at Landlord election, after ten (I0) days written notice to Tenant, procure the same, adding the premium cost to the monthly installment of Kent next duo, it being hereby expressly covenanted and agreed that payment by Landlord of any such premium shall not be deemed to waive or release the obligation of Te!~ ~nt to make payment thereof. Tenant's failure to either procure or m~;ntain the insurance required hereunder, after thirty (30) days written notice from Landlord to Tenant, shall constitute a default by Tennnt under this Lease. 7.4 Use of Insurance Proceeds. Any insurance proceeds recovered by reason of damage to or destruction of improvements on the Premises shall be made available to Tenant and must be used to repair, restore or replace the improvements so damaged or destroyed with any excess procecds made available to Tenant Tenant shall not be rcspons~le to expend any money for the repair, restoration or replacement of a~m~ged improvements other than the insurance proceeds. 7.5 ~ If the improvements on the ?ramises are damaged to the extent of fifty (50%) percent or more of their insurable vaiuc, Tenant may, in its sole discretion, elect (a) to repair or restore the improvements, CO) to construct new improvements or (c) to terminate this Lease without liability to either party. If T~nant elects to repair or restore the improvements or construct new improvements, all insurance proceeds recovered by reason of damage to or destruction of such improvements shall be made available to Tenant, and Tenant shall promptly perform such repair, restoration and/or reconstruction. Landlord hereby acknowledges and agrees that Tenant shall receive an abaten~nt of Kent in proportion to the extent of the Onmage until such time as the repair, restoration or reconstruction is completed, but in no event shall Teusnt's repair, restoration or reconstruction take, nor shall the Kent abatement period exceed, one hundred eighty (180) days. If Tenant elects to terminate this Lease, Tenant shall so notify Landlord within ninety (90) days after the damage occurs, whereupon Landlord shall be entitled to all proceeds of insurance and rights of recovery against insurers covering such damage. 7.6 ~t];Kg_g~i~. Landlord and Ten,ut shall each obtain from their respective insurers under all policies of fire, theft, public liability, workers' compensation and other insurance maintained by either of them at any time during the Term hereof insuring or covering the Premises, a waiver of all fights of subrogation which any and all insurers of either party might otherwise have, if at all,' against the other party. 7.7 Iudernuifieation by Tenant Tenant shall indemnify, defend and hold Landlord and Landlord's officers, directors, agents, employees and contractors harmless of and fi'om any and all claims, demands, ]labilities, losses, costs and expenses of ewry nature, including v~thout !~rmtat~on, reasonable attorneys fees, musing m connection with any and all third party claims arising out of (a) any intentional act or negligence of Temmt or Tenant's agents, employees or contractors, Co) any breach or default in the performance of any obligation on Tenant's part to be performed under this Lease, or (c) the failure of any representation or warranty made by Tenant herein to be hue when made; provided however, Ten, ut shall have no obligations under thi~ Section with respect to any intentional or negligent act or omission of Landlord or its agents, employees and/or contractors. This indemnity shall survive the expiration and/or termination of this Lease only with respect to chlm~ arising out of events which occur prior to the date of expiration and/or termination of this Lease. 7.8 Indem~i~cation by Landlord. Landlord shall indemnify, defend and hold Tenant and Tenant's officers, directors, agents, employees and contractors harmless of and from any and all claims, demands, liabilities, losses, costs and expenses of every nature, including without limitation, reasonable attorneys' fees, arising in connection with any and all third party claims arising out of(a) any intentional act or negligence of Landlord or Landlord s agents, employees or contractors, CO) any breach or default in the perforrusnce of any obligation on Landlord's part to be performed under this Lease, or (c) the failure of any representation or warranty made by Landlord herein to be true when made; provided however, Landlord shall have no obligations under this Section for any intentional or negligent act or omission of Tenant or its agents, employees and/or contractors. This indem-ity shall survive the expiration and/or termination 0f this Lease only with respect to cl,~m-~ arising out of events which occur prior to the date of expiration and/or termS-etlon of this Lease. SECTION 8 In the event that any portion of the Premises is taken by right of e~ent dornaln or by condemnation, or is conveyed in lieu of any such htking (collectively, thc "Taking"), and such Taking materially affects Tenant's ability to continue tO use the remainder thereof for the purposes set forth herein, or which otherwise renders the pre. mi~es unte~a~table, then this Lease may be term{~ated at the option of Tenant. Such option shall be exercised by Tenant giving notice to Landlord of such termination within thirty (30) days af~ such Taking, whereupon thi.~ Lease shall .fox~hwith terminate and the Rent shall be duly apportioned as of the date of such Taking. Upon such term/nation, Tenant shall surrender to Landlord the Premises and all of Tenant's interest therein under this Lease, and Landlord may re-enter and take possession of the Premises. if any portion of the Premises is taken which does not materially affect Tenant's right t° use the remainder thereof for the pmpuses set forth herein, this Lease shall continue in full force and effect, and Landlord shall promptly perform any repair or restoration work .required to restore the Premises, insofar as possible, to its former condition, and the Pent owing hereunder shall be adjusted in such a m~nner and proportion as the part so taken (and its effect on Tenant's ability to use the remainder of the Prem~.qes) bears to the whole. In the event of a Taking as descn~oed herein, Landlord shall receive the award or consideration for the lands and improvements so taken; provided, however, that Landlord shall have no interest in any award made for Tenant's loss of business or value of its leasehold interest or for the taking ofTenant's fixtares or property, or for Tenant's relocation expenses. Landlord and Tenant shall cooperate with one another in n'mldng claims for condemnation awards. SECTION 9 ASSI~N1VEENT AND SUBLETTING: ATTORNMENT: TENANT FINANCING 9.1 ~ At any time, Lendlord may sell its interest in the Premises or assign this Lease or Landl°rd's reversion hereunder, either absolutely or as security for a loan, without the necessity of'ob~ng Tenant's consent or permission, but any such sale or assignment shall be at all t~mes subject to this Lease and the rights of Tenant hereunder. In the event of an assignment or transfer of tl~ Lease by Landlord for other than security purposes, Landlord shall cause its assignee or transferee to assun~ the provisions of this Lease and Landlord shall deliver notice of such assignment or transfer and a copy of the effective ins~ment of transfer to Tenant within ten (10) days after the date of such transfer, and Tenant shall be entitled to continue to pay Rant and give all notices to Landlord until Tenant has received the foregoing from Landlord. Landlord further agrees that it shall deliver all funds in which Tenant has an interest, including without ~m~tation Tenant's security deposit, if any, to Landlord's purchaser or assignee. 9.2 ~ssi~ment and Subletting b.v Tenant. Tenant shall have th~ right to assign, sublet or otherwise tr~.n~er its interest in this Lease and its rights hereunder to any entity or person with Landlord's prior wrk~n consent, which shall not be ,nmasonably withheld, conditioned or delayed. Notwithstanding the foregoing, Tenant may assign, sublet or otherwise transfer its interest in tM.q Lease without Landlord's consent, written or otherwise, and with or without notice thereof to Landlord, to any parent, subsidiary or ~ffil~ate of Tenant, or to a corporation or other business entity with which Tenant may merge or consolidate (collectively referred to herein as the '~elated Entities" and singularly ~eferred to herein as the '~elated Entity"). This Lease contains no provision res~cting, purporting to restrict or re~erring in any m~n~er to a change in control or cha~ge in stockholders, directors, management or organization of Tcusnt, or any 10,dated Entity, or to the issuance, sale, purchase, public offering, disposition or recapitalization of the capital stock of Tenant, or any ' ]Belated Entity. A~:I!II~. Any assignee of Lsudlord or Tenant hereby agrees to attom to the Tenant or Landlord, respectively, as the 9.3 case may be. 9.4 ~T~. Tenant shall have the absolute right from time to ~me during the Term hereof and without Landlord's further approval, written or otherwise, to grant and assign a mortgage or other security interest in Tenant's interest in this Lease and all of Tenant's property located on or used in connection with the Premises to Tenant's lenders in connection with Tenant's financing arrangements. Landlord agrees to execute such confn-mation certificates and other documents as Tenant's lenders may reasonabIy request in connection with any such f'mancing. SECTION 10 DEFAULT AND RElVI~DIES (1) Tenant shall default in the due and punctual payment of the Rent, insurance premiums, impositions or any other amounts or rents due under this Lease or any part thereof, and Such default shall continue for thirty (30) days after notice thereof in vaiting to Tenant; or (2) Tenant sba11 default in thc performance or in compliance with any of the other covenants, al~rcements or conditions contained in this Lease and such default shall not be cured within thirty (30) days after notice thereof in writing from Landlord to Te _n~nt ~rovided that, in the event such default is not capable of being cured within such thirty day period, Tenant shall have a reasonable time thereafter, provided it proceeds with rlillgence); or (3) Tenant shall'file a petition in voluntary bankruptcy or under Chapter 'vii or XI of the Pederal Bankntptcy Act or any similar law, state or federal, whether now or hereafter existing, or an answer artmltting insolvency or inability to pay its debts, or fall to obt~i~ a vacation or stay of involuntary proceedings within ninety (90) days ~ the involuntary petition is filed; or (4) Tenant shall be adjudicated bankrupt, or a trustee or receiver s~2ll be appointed for Tenant or for all of its property or the major par~ thereof in any involuntary proceedings, or any court shall have taken jurisdiction of the property of Tenant or .... liquidation or windin~ up of Tenant, and such the majority part thereof in any involunta~ proceeding for reo~am?atmn, dissolution, trustee or receiver shall not be discharged or such jurisdiction relinquished or vacated or stayed on appeal or otherwise within ~inety (90) days; or (5) Tenant shall make an assignment for the benefit of its creditors; then and in any such event referred to in clauses (1), (2), (3), (4) or (5) above (each an '~vent of Default") Landlord shall have the remedies with respect to the Premises as set forth below. 10.2 I.a~rtlnrd's l~emedies Upon Default. Upon the occurrence of an Event of Default by Tenant, then Landlord shall be entitled to the followin§ remedies: the Premises to Landlord within thirty (30) days after such written notice. If Tenant fails to so surrenaer me l~rermses, men l.anu ~,, without prejudice to any other remedy it has for possession of the Premises or arrearages in rent or other damages, re-enter and take possession of the Premises and expel or remove Tenant and any other persun occupying the Premises or any part thereof, in accorrlance with applicable law; or (2) Landlord may re-enter and take possession of the Premises without terminating the Lease in accoraance with applicable law, and relet the Premises and apply the Pent received to the account of Tenant. In the event Landlord so ~e-enters and takes possession of the Premises as set forth above, Landlord a~rees to use reasonable efforts to relet the l~emises for a commercially reasonable rate at the time of such relettin§. No reletting by Landlord is considered to be for Landlord's own account unless Landlord has notified Tenant in wdtin~ that this Lease has been terminated. In addition, no such relettin§ is to be considered an acceptance of Tenant's surrender of the Premises llnless Landiord so notifies Tenant in writing. Hotwitl~standin§ anything to the contraly set forth herein, in no event shall Landlord have the right to accelerate the Rent and other amounts payable hereunder, sue Tenant for any consequential, punitive or incidental clamages (incllldinl~, without' limitation, any cll~ims for lost profits and/or lost business opportunity). 10.3 ~illl~l~lll~. In the event that a right of action by Landlord a§,inat Tenant arises under this Lease pursuant to Sections 10.1 and 10.2 hereof, Landlord shall attempt to mitigate damages by using its best effo~s to seek to relet the Premises. 10.4 Llll~l;l~l~lk~. The failure of Landlord to perform any covenant~ condition, a~reement or provision contained herein withln thirty (30) days after receipt by Landlord of written notice of such failure shall constitute an "Event of Defanlf' hereunder. Upon the occurrence and continuance of an Event of Default, Tenant may, at its sole option and without any obligation to do so, elect any one or more of the following remedies: (1) Terminate and cancel this Lease; or (2) Withhold payment or performance under the Lease until such time as such Event of Default is cured; or (3) Cure such Event of Default and recover any and all costs relating thereto by set-off against the Rent due hereunder or by an action at law; or (4) situated. Pursue any other remedy now or hereafter available at law or in equity in the state in which the Premises are SECTION 11 ENVIRONMENTAL LIABILITY 11.1 ~- ( 1} Tenant shall not do any~h(~, throughout the Term of this Lease that will ~olate any Environmental Laws (ss herein~%~ defined). Tenant shall indemnify, defend~and hold harmless Landlord,. its directors, officers, employees, and agents and assignees or successors to Landlord's interest in the Premises, their dkecto~s, officers, employees, and al~ents from and against any and all losses, clairrt% suits, dikmages, judgments, penalties and liability including, without limitation, (i) all out-of-pocket litigation costs and ressonable attorneys' fees, (ii] all damages (including consequentNl damages), directly or indirectly aris/nE out of the use, .generation, storage, release or threat~med release or disposal of Hazardous MateriaLs (as defined herein) by Tenant, its agents and contractors and (/ii) the cost of and the obligation to perform any required or necessary repair, clean-up, investigation, removal, remerllation or abatement, and the preparation of any closure or other required plans, to the full extent that such action is attributable, directly or indirectiy, to the use, generation, storage, release or threatened release or disposal of Hazardous Materials by Tenant, its agents and cunlractors. This indemnification obligation of Tenant does not extend to any repair, clesn-up, investigation, removal, remedlation or abatement of Hazardous Materials (i) which wma: present on, under or in the Premises before or on the Lease Commencement Date or (ii) for which Landlord is otherwise obligated to indemnify Tenant purse,ant to this Section 11. (2) Landlord shall indemnify, defend and hold harmless Tenant, its directors, officers, em?loyees, and agents, and any assignees, subtenants or successors to Tenant's interest in the Premises, their directors, officers, employees, and agents, from and againat any and all losses, claims, suits, damages, judgments, penalties, and liability including, without limitation, all (i) out-of-pocket litigation costs and reasonable attorneys' fees, (ii) all damages (including consequential damages), directly or indirectly arising out of the presence, use, generation, storage, release, threatened release or disposal of Hazardous MateriaLs on, under or in the Premises befor~ or aller the Lease Commencement Date by or due to the actions or omissions of any person other than Tenant, or its agents and conlractors and (ii/) the cost of and the obligation to perform any required or necessary repair, clean-up, investigation, removal, remedlation or e or other r ed lans, whether such actmn ~s required or necessary prior to abatement and the preparation of any closur exltfir p . · · · ' or following the commencement of the initial Lease Term, to the full extent that such action is attributable, directly or indirectly, to the presence, use, ganeration, storage, release, threatened release, or disposal of Hazardous MateriaLs on, under or in the Premises due to the actions or omissions of any person other than Tenant or its agents and cunl~actors. .(3) For the purpose of this Section, Hazardous MateriaLs shall include but not be limited to substances defined as "hazardous substances," "hazardous materiaLs," or "toxic substances" in the Comprehensive Environmental Response, Compensation and Liability Act of 1980, as amended, 42 U.S.C. Section 9601, et seq.; the Hazardous MateriaLs Tr~,~ortation Act, 49 U.S.C. Section 1801 et seq.; the Resource Conservation and Recovery Act, 42 U.S.C. Section 6901, et ~eq.; the common hw; and any and all state, local or federal laws, rules, regulations and orders pertaining to environmental, public health or welfare matters, as the s~me may be amended or supplemented from time to ~ (collectively, the "Environmental Laws"). Any terms mentioned in this Lease which are defined in any applicable Environmental Laws shall have the meuninSs ascribed to such terms in such laws, provided, however, that/f any such laws are amended so as to broaden any tmun defined therein, such broader meaning shall apply subsequent to the effective date of such amendment. In the event that (i) there is any presence, use, generation, storage, release, threatened release, or disposal of Hazardous MateriaLs on, under or in the Prmmises, before or al~er the Lease Commencement Date, which is not due to the actions or omissions Tenant or its agents and con,actors (any one or more of the foregoing being collectively or singularly referred to herein as the "}invironmental Condition"), or (ii) any dean-up, investigation, removal, remediation, abatement, or other similar action is required by any court or governmental or quasi-governmental agency or authority ia connection with any Environmental Condition (any one or more of the foregoing being collectively or singularly referred to herein as the "tinvirunmental Remedlation"), and such Environmental Condition and/or Environmental Remediafion (a) requires that Tenant be closed for business, (b) adversely affects access to the Premises, or (c) otherwise prechides Tenant from reasonable operation of its business on the Premises, then Tenant's Rent and other payment obligations under th{~ Lease shallbe abated as follows: (A) in the event that Tenant is required to be closed for business, Tenant's Rent and other payment obligations under this Lease shall be abated entireIy during the period in which Tenant is required to be closed for business; or 03) in the event access to the Premises is materially adversely affected or Tenant is precluded from reasonable operation of its business on the Premises, Tenant's Rent and other payment obligations under this Lease shall be abated in proportion to the amount of 1oat business suffered by Tenant. In the event that any such Environmental Condition and/or l~nvironmental Remediafion interferes with Tenant's business as set forth in this Section 11.1(4)(a) through (c) for more than thirty (30) consecutive calendar days, then Tenant sbal! have thc right to terr~ inate this Lease upon written notice thereof to Landlord. (5) The provisions of this Section 11 shall survive the expiration or earlier termination ofthh Lease. SECTION 12 iVIISCELLANEOUS PROVISIONS 12.1 PAr~. Landlord shall provide all such parking as m~y be necessary to comply with any and all c°de and pennitting requirements at no expense to Tenant throughout the Term of this Lease. Landlord further agrees that it shall not reduce the n~rnber of parking spaces below that which is required by any spplicable law, nde, regulation and/or ordinance for Tenant's lawful use and occupy the Premises as contemplated hem/n. Additionally, Landlord shall not vary or permit to be varied the existing means of ingress and egress to the Premises. 12.2 tleme~li~-~ to Be Oimulative. No remedy conferred upon or merved to Landlont or Tenant shall be considered exclusive of any other remedy, but the same shall be cumulative and shall be in addition to every other remedy given under this Lease or now or hereafter existing at common law or by statute. ]~very power and remedy given Landlord or Tenant may be exercised from t/me to t/me and as often as occasion may arise or may be deemed expedient. 12.3 lqotices. All notices, requests, demands or other communications which may be or are required or permitted to be served or given hereunder (in this Section collectively called "lqotices") shall be in writing and shall be hand delivered, sent by registered or cellified rt~ail; retm-n receipt requested, postage prepaid, or by a nationally rece~ized over/tight delivery serv/ce to Tenant or to Landiord at the address set forth in the Addendum or by facsimile to the fax number listed in the Addendum (provided that, for a facsimile, a copy is also sent promptly by U.S. mail, certified mail or overnight delivery service). Either party may, by Notice given as aforesaid, change its address for all subsequent Notices. Notices shall be deemed given when received in accordance herewith and shall be addr~sed to the parties hereto as set forth in the Addendihn. 12.4 ~to_]~.r,9.k~. Landlor~i and Tenant each warrant to the other that no broker or agent has been ~mployed with respect to this Lease and each agrees to indemnify and hold the other harmless from any claims by any broker or agent claiming compensation with respect to this Lease alleging an agreement by Landlord or Tenant, as the case may be. The provisions of this Section shall survive any expiration or termination of thls Lease. 12.5 ]Kelatlt~nshi? Of the Parties. Landlord shall not be construed or held to be a partner or associate of Tenant in the conduct of Tenant's business, it being expressly understood and agreed that the relationship between the parties hereto is and shall at all times remain, during the lease term, that of Landiord and Tenant. 12.6 Non-Waiver. No failttre by Landlord or Tenant to/mist upon the performance of any covenant, agreement, provision or condition of this Lease or to exercise any right or remedy, consequent upon a default hereunder, and no acceptance of full or partial Rent during the continuance of any such default, shall consfitut~ a waiver of any such default or of such covenant, agreement, provision, or centlition. No waiver of any ddault shall affect or aker this Lease, but each and ~very covenant, agreement, provision and condition of' ,~i~ Lease shall continue in full force and effect with respect to any other then-existing or subsequent default h~reunder. 12.7 ~/~I~~. Words of any gender used in this Lease shall be hald to include another gender and words in the s/ngnlar n~traber shall be hald to include the plural and words in the plural shall be held to incinde the sin§ular, as the context so requires. 12.8 Captions. The captions, titles and article, section or paragraph headings are inserted only for convenience and they are in no way to be construed as a part of this Lease or as a limitation on the scope of the particular provisions to which they refer. I2.9 ~. Thh Lease is made pursuant to, and shall be govemed bY, and consiraed in acc°r~tance with' the laws of the State in which the Premises are located. 12.10 ~. The covenants, conditions and agreements in this Lease shall bind and inure to the benefit of Landlord and Tenant and, except as otherwise provided in this Lease, thek respective heirs, devisees, executors, administrators, legal representatives, distributees, successors and assigns. 12.11 Aa~!lnm~. Any agreement hereafter made shall be ineffective to change, modify or discharge this Lease in whole or inpart unless such agreement is in writing and signed by the party agslnst whom enforcement of the change, modification or discharge is sought. 9 12.12 Short Foma Memorandum. Tho parties agree to execute a short form Memorandum of Lease in the form of~ attached hereto for recorrlln$ with the applicable local governmental authority, containing thc names of the pan'i, es, a description of the Premises, the Term of the Lease and such other provisions as the parties may deem appropriate. 12.13 Lien. Landlord hereby waives any statutory and/or common law rights it may have granting Landlord a lien or the right to foreclose on any property of Ten~nt~ including without lhnitation, any of Tenant's personal property and/or the tenant improvements installed in the Premises by Tenant. 12.14 Representations ancl Warranties. Notwithstanding anything in this Lease to the contrary, Landlord represents and warrants to Tenant (a) that no mortgages,' deeds of m~sts or liens or encumbrances of any nature presently encumber Landlord's tire tO the Premises except as set forth on ~, attached hereto and made a part hereof; Co) that none of said encnmbrances eball prohibit or impede the use of the Pr~.~es as contemplated herein or create any financial obligation on the part of Tenant except as expresaly set forth herein; (c) that Landlord has the full right, power and authority to enter into ,~i~ Lease and make the agreements contained herein on its part to be performed; (d) that the execution, delivery and perfowance of this Lease has been duly authorized by Landlord; (e) that the Lease constitutes the valid and binding obligation of Landlord, enforceable in accora~'ce with its terms; (f) that the ~aking of this Lease and the performance thereof will not violate any present zoning laws or ordinances or the terms or provisions of any mortgage, lease or other agreement to which Landlord is a party or under which Landlord is otherwise bound, or which otherwise restricts Landlord in any way with respect to the use or disposition of the Premises; (g) that Landlord has no knowledge of any pending zoning changes affecting the Premises; (h) that the Premises are presently in eomptiance with any and all applicable laws, including without limitation any laws pert, lnlng to Hazardous Materials and Environmental Laws and the Americans with Disabilities Act of 1990; (i) that the Premi.~es will be kept in compliance by Landlord, at its cost, with all applicable laws and regulations enacted from and after the date of this Lease except when compliance is required sulely as a result of Tenant's use of the Premises; (j) that the Premises are presently zoned so as to permit the operation of the Premises as contemplated in t~ Lease; (k) that the Premises are free from defects, have been maintained in accordance with normal industxy practice and are in good operating condition and repair and are suitable for the purposes for which they are presently · used; and (1) that the Premises presently include full legal access to one or more dedicated public rights-of-way. 12.15 Subora~nafion and Attomment. This Lease shall be suborfl~nate to any mortgage, deed of trust or ground lease (now or hereafter placed upon the Premises), and to any and all advances made under any mortgage or deed of tnmt and to all ~enewals, modifications, consolidations, replacements and extensions thereof. Tenant: agrees to execute such documents as may be further required to evidence such subordination or to make this Lease prior to the lien of any mortgage or deed of trust, as the case may be, subject to the following sentence. Notwithstanding the foregoing, Tenant shall only be obligated to subora~nate its leasehnld interest to any mortgage, deed of trust, or ground lease now or hereafter placed upon the Premises if the holder of such mortgage or deed of tnast or the Landlord under such ground lease delivers to Tenant a non-disturbance agreement substantially in accora~nce with the form attached hereto as ~" (the "Non-Disturbance Agreemenf'). Upon the mutual execution of this Lease, Landlord sb~l deliver to Tenant a Non- Disturbance Agreement executed by Landlord and any present lender having a deed of trust or mortgage on the Premises. 12.16 .E~Ifi~,l~l~I~l~. In the event Tenant determines at any time that (a) applicable govemmentalregulations prokt"oit the use of the Premises'for the operation of a retail florist shop and any related uses including, but not l~mited to, a wholesale floral business, or Co) Tenant's access, visibility or parking has been adversely affected, Tenant shall have the right, but not the obligation, to terminate this Lease upon thirty (30) days written notice to Landlord and have no further liability upon payment to Landlord of all re,~t prorated through the date of termination. 12.17 Attorney's Fees. In the event that at any time during the Term of this Lease either Landlord or Tenant shall institute any action or proceeding against the other relating to the provisions of this Lease, or any default hereunder, the unsuccessful party in such action or proceeding agrees to reimburse the successful party for the reasonable expenses of attorney's fees and paralegal fees and disbursements incurred therein by the suceessfulparty. Such reimbursement shall include all legal expenses incurred prior to trial, at trial and at all.levels of appeal and post judgment proceedings. 12.18 ~. This Lease may be executed in any number of count~parts, each of which shall be an original but all of which together shall coustitute one and the same iusmmaent. A telecopy signature of any parW shall be considered to have the same binding legal effect as an original signature. SECTION 13 TENANT'S OPTION TO PURCHASE Tenant shall have the fight to purchase the Premises, at any time during the Term of this Lease (the "Option") upon written notice thereof to Landlord (the "Purchase Notice") prior tb the expiration of the Tenn. If Tenant exercises the Option, then Tenant shall purchase and Landlord shall sell the Premises upon the terms and conditions set forth on the Terms for Sale and Purchase attached hereto as Exhibit "E" and made a part hereof (the '~archase Terms"). Upon the closing of the sale and purchase as contemplated by the 10 Purchase Terms, th~ Lease sh~ tc~,~i~te and shall be of no further force and effect. The purchase price for the Premises ("Purchase Price") shall be determined by agreement of the Landlord and Tenant, or, if the Landlord and Tenant fa/1 to reach an agreement w/thin fifteen (15) days of the Tenant's Purchase Notice, then by the procedure set fo~h on the Purchase Terms. $1~.CTION 14 RIGHT O1~ FIRST REFUSAL During the Term oft~{~ Lease, upon the receipt by Landlord of a bona fide offer to purchase the Premi.~es which is acceptable to Landlord from any m~d party (the "Offer"), T~nt sh~ll have the fight and option to purchase the Prer~i.~es at the price and upon the terms and conditions which are contained in the Offer as provided here/ri. Upon receipt by Landlord of the Offer, Landlord sh~l! provide Te~t notice thereof (the '~lk'ansfer Notice'') which sh~!~ set forth the exact terms Of the Offer so received, toEether with a copy of the Offer, and shall state the desire of Landlord to sell the Premi.~es on such terms and conditions. If Tenant desires to exercise its rights hereunder, it shall give notice to that effect toLandlord within twenty (20) days after receipt o£tha Transfer Notice (the "Counter Notice"), which Counter Notice shall further acknowledge Tenant's agreement to be bound by the terms and conditions of the Offer. Thereafter, Tenant and Landlord shall enter into a formal contract mgar~i~E the sale and purchase of the Prer~i.~es as contemplated by this Section 14, wh/ch contract shall include the terms and conditions of the~Offer, together with such other terms and conditions as Landlord and Tenant may otherwise agree upon. Provided however, Landlord and Tenant hereby acknowledge and agree that closing of the sale and purchase contemplated by this Section 14 shall be effectuated on or before sixty (/50) days from the date the Counter Notice is served by Tenant to Landlord, whereupon thi.~ Lease shall terminate and be of no further force and effect. Tenant's failure to §ive a timely Counter Notice (or notice of its refusal to purchase the Premises) shall be deemed a refusal by Tenant to purchase the Premises pu~.nt to the Offer; provided however, such failure sb.!l not be deemed a waiver of its fight to purchase the Premises pursuant to any modification to the Offer or any future offers, TenAnt's rights under thi~ Section are assignable to any person or entity which is or would be a permitted assignee pursuant to Section 9.2 hereof. Te~.nt's failure to, or its election not to, exercise its rights hereunder shall not affect the continued enforceab/lity of the Option as provided in Section 13 hereof. WAIVER O1: JURY TRIAL. LANDLORD AND TENANT HEREBY MUTUALLY KNOWINGLY, WII.LINGLY AND VOLUNTARILY WAIVE THEIR RIGHT TO A TRIAL BY ~TKY, AND NO PARTY, NOR ANY ASSIGN'EE, SUCCESSOR, HEIR, OK LEGAL REPRESENTATIVE O1: THE PARTIES (ALL O~ WHOM ARE HEREINAFFEK REFE~RD TO AS THE "PARTIES") SHALL SEEK A KIKY TRIAL IN ANY LAWSUIT, PROCEEDING, COUNTERCLAIM, OK ANY OTI-I~R LITIGATION PROCEEDING BASED UPON, ARISING OUT OF OR IN ANY WAY CONNECTED WITH THIS LEASE OR ANY COURSE OF ACTION, COURSE OF DEALING, STATEMEKYS (WHETHER VERBAL OK WRI'ITEN) OP. ACTIONS RELATING TO THE LEASE. THE PARTIES ALSO WAIVE ANY RIGHT TO CONSOLIDATE ANY ACTIO. N IN WI-IICI-IA IURY TRIAL HAS BEEN WAIVED, WrI'H ANY OTI-IEP. ACTION IN WHICH A IUKY TRIAL HAS NOT BEEN WAIVED. TIlE PROVISIONS OF THIS PARAGRAPH HAVE BEEN FULLY NEGOTIATED BY THE PARTIES I-~RETO. TIlE WAIVEK CONTAINED HEREIN IS IRREVOCABLE, CONSTITUTES A KNOWING AND VOLUNTARY WAIVER, AND SHALL BE SUBI'ECT TO NO EXCEPTIONS. 11 IN WITNESS Vv'HI~REOF, Landlord and Tenant have duly executed this Standard Lease Agreement as thek free act and deed as of the day and yea~ fi~st above written. Signed, ~ea~ed and delivered LANDLORD: in the presence of: Print Name: Name: Harry L. Steph~nson, H Name: ]'anet L St~phenson. GERALD STEVENS P1TrSBUP~GH, INC., a pennsylvania corporalion Print Na~Olivl Print Name: Maria M. Knutsen Name: leffrey M. Mattson Title: Vice President (Corporate Seal) 12 [ACKNOWLEDGMENT OF LANDLORD] COMMONWEALTH OF PENNSYLVANIA ) )SS: COUNTY OF CUMBERLAND ) On thisc~%%y 0~999, before me, the undersigned o~cer, personally appea~ed Harry L. Stephenson, H known to me, (or satisfactorily proven) to be ~he person whose n~ae is subscribed to the foregoing imt~ume~t, md acknowledged that he exe~-~xsame for the~upos ,es herein stated ' NOT2ra~Y ?UBLIC .~-~ ~ Print Name: My CommissionE:f~ARIAL SEAL COMMONWEALTH OF pENNSYLVANIA COUNTY OF CUMBERLAND ) SS: ) ANNE LENIG, Nolary Public :.oyne BOrou0h .Cuml~rland Co. · ~ remission Expires Dec. 21, 2001 foregoing insizament, and acknowledged that she ~xecut~-~.~e for the purpo~ses here ,m stste~ NOTAi~¥ PUBLIC (~ ~ [ACKNOWLEDGMENT OF TENANT] STAT~ OF FLORIDA ) )SS: Pg. ut Name: My Commission Expires: [ NOTARIAL SEAL .... iDIANNE LENIG, No~ Public Lemoyne Borough Cum~rland Co, My Commission Expires Dec. 21, 2001 COUNTY OF BKOWARD ) The forcgohlg instrumeat was acknowledged before me ~ /~'*clay of~999, bYa lefEey M. Mattson as Vice President and on behalf of GERALD STEVENS 1/ITrSBURGI-I, INC., Pennsylvania co~pomtion, who is perso..lly known to me. Print Name: P. ochelle L. Kaye Commission No,: CC 536733 My Commission Expires: 05/22/00 13 011128-O0004/12.6.991RHWIKLT/129141.1 EXHIBIT A ,DESCRIPTION OF PREMISES ALL THAT CERTAIN tract of land with the improvements thereon erected, situate in the Township of Washington, County of York and Commonwealth of Pennsylvania being bounded and described according to a survey by Rodney LeeDecker, Registered Surveyor, dated March 23, 1981 as follows, to wit: BEGINNING at a steel pin at corner of lands now or formerly of William M. Stambaugh; THENCE by lands of same, South 50 degrees, 48 minutes, 45 seconds East 1,782.00 feet to a steel pin at lands of same; THENCE by lands of same, South 24 degrees, 44 minutes, 30 seCOnds West 507.49 feet to a steel pin. at a post at lands now or formerly of Ray W. Myers; THENCE by lands of same North 68 degrees, 48 minutes, 15'seconds West 673.66'feet to a steel pin at a post; THENCE by lands of same, South 50 degrees, 11 minutes, 45 seconds West 231.00 feet to a point at lands now or formerly of Kenneth R. Ports; THENCE by lands of same, by the following courses and distances: North 70 degrees, 48 minutes, 15 seconds West 438.90 feet to a point in the water course of the Bermudian Creek; THENCE North 52 degrees, 18 minutes, 15 seconds West 176.55 feet to a point; THENCE North 32 degrees, I8 minutes, 15 seconds West 66.00 feet to a point; THENCE North 00 degrees, 18 minutes, 15 seconds West 598.95 feet to a point; THENCE North 10 degrees, 41 minutes, 45 seconds East 495.00 feet to a steel pin; THENCE along the strip of land lying between this property and the southern side of Old Mount Top Road, North 54 degrees, 35 minutes, 00 seconds East 168.76 feet to a steel pin at COrner of land now or formerly of William M. Stambaugh, being the first mentioned point and place of BEGINNING. CONTAINING 33.483 acres, more or less. LESS HOWEVER, and excepting from the leased premises, the existing farmhouse constructed on the above described tract together with the adjacent lawn area, as indicated by cross-hatching on Exhibit A(1). A-1 EXHn~T pin (set) 33. 485 ACRE$ Exhibit B THIS AGREEMENT is made this ~0)~ day of December 2001, between HARRY L. STEPHENSON, H (hereinafter referred to as "Assignee"), and JANET L STEPHENSON (hereinafter referred to as "Assignor"). WITNESSETH: WHEREAS, Assignor hereby assigns to Assignee all claims, rights, and causes of action arising out of or in connection with the Lease dated December 9, 1999, related to the greenhouses on the Washington Township farm, in which Gerald Stevens Pittsburgh, Inc., is or was a lessee. WHEREAS, Harry L. Stephenson, II, is hereby empowered to act as sole plaintiff for the purpose of collecting any sums due, including rent, property damage, or .other claims arising from the occupancy of the property by Gerald Stevens Pittsburgh, Inc. WHEREAS, this Agreement is made for the purpose of fully effectuating the transaction by which Assignor granted by deed to Assignee the real property consisting of 33.483 acres situate in Washington Township, York County, Pennsylvania, a portion of which is subject to the Lease between the Stephensons and Gerald Stevens Pittsburgh, Inc. This Assignment is made for valuable consideration, receipt of which is hereby acknowledged. INTENDING to be fully bound hereby, the parties set forth their hands and seals as of the date first above written. WITNESS: / /~/ · ;.' ,~.~ [ / /Harry L. ~tephenson, II ~ / :152620 HARRY L. STEPHENSON, II, Plaintiff, IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA v. : NO. 02-139 : GERALD STEVENS PITTSBURGH, INC. : and THOMAS ROYER, : Defendants. : CIVIL ACTION - LAW ENTRY OF APPEARANCE Please enter our appearance on behalf of Defendant Thomas Royer in connection with the above-captioned matter. Dated: January 31, 2002 Respectfully submitted, McNEES WALLACE & NURICK LLC I.D. No. 86345 100 Pine Street P.O. Box 1166 Hamsburg, PA 17108-1166 (717) 232-8000 Attorneys for Defendant Thomas Royer CERTIFICATE OF SERVICE I hereby certify that on this date a tree and correct copy of the foregoing document was served by first-class mail, postage prepaid, upon the following: David J. Lanza, Esquire Johnson, Duffle, Stewart & Weidner 301 Market Street P.O. Box 109 Lemoyne, PA 17043-0109 t K~ice ~. Kerwin ~ Dated: January 31, 2002 HARRY L. STEPHENSON, II, : Plaintiff, : v. : NO. 02-139 GERALD STEVENS PITTSBURGH, INC. : and THOMAS ROYER, : Defendants. : CIVIL ACTION - LAW IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NOTICE TO PLEAD TO: HARRY L. STEPHENSON, II, Plaintiff, and his attorney, DAVID J. LANZA, Esquire You are hereby notified to file a written response to the enclosed Answer and New Matter within twenty (20) days from service hereof or a judgment may be entered against you. McNEES WALLACE & NURICK LLC By I.D. No. 86345 100 Pine Street P.O. Box 1166 Harrisburg, PA 17108-1166 (717) 232-8000 Attorneys for Defendant Thomas Royer Dated: February 13, 2002 HARRY L. STEPHENSON, II, : Plaintiff, : v. : NO. 02-139 : GERALD STEVENS PITTSBURGH, INC. : and THOMAS ROYER, : : Defendants. : ANSWER AND NEW MATTER IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW OF DEFENDANT THOMAS ROYER Defendant Thomas Royer CRoyer"), by and through his attorneys, McNees Wallace & Nurick LLC, answers the averments of the complaint in the above-referenced case, with accompanying new matter, as follows: ANSWER 1. After reasonable investigation, Royer is without knowledge or information sufficient to form a belief as to the truth of the averments contained in this paragraph, and those averments are, therefore, denied. 2. Admitted. 3. Admitted in part and denied in part. It is admitted that Thomas Royer is an adult individual. It is denied that he has an address at 810 South 12th Street, Lebanon, Lebanon County, Pennsylvania, 17942; rather, his correct address is 1227 Quail Hollow Road, Hummelstown, Dauphin County, Pennsylvania, 17036. 4. After reasonable investigation, Royer is without knowledge or information sufficient to form a belief as to the truth of the averments contained in this paragraph, and those averments are, therefore, denied. 12. reference. 5. After reasonable investigation, Royer is without knowledge or information sufficient to form a belief as to the troth of the averments contained in this paragraph, and those averments are, therefore, denied. 6. This paragraph states a legal conclusion to which no responsive pleading is required. To the extent a response is required, the averments of paragraph 6 are denied. 7. This paragraph states a legal conclusion to which no responsive pleading is required. To the extent a response is required, the averments of paragraph 7 are denied. 8. This paragraph states a legal conclusion to which no responsive pleading is required. To the extent a response is required, the averments of paragraph 8 are denied. 9. After reasonable investigation, Royer is without knowledge or information sufficient to form a belief as to the troth of the averments contained in this paragraph, and those averments are, therefore, denied. 10. After reasonable investigation, Royer is without knowledge or information sufficient to form a belief as to the truth of the averments contained in this paragraph, and those averments are, therefore, denied. 11. Denied. Defendant Royer has not filed a bankruptcy petition; Defendant Gerald Stevens Pittsburgh, Inc. has filed such a petition. Therefore, the averment of this paragraph is apparently directed to a defendant other than Royer and, therefore, requires no response from Royer. To the extent a response is required, the averment of this paragraph is denied. COUNT I BREACH OF CONTRACT Stephenson v. Gerald Stevens Pittsburgh, Inc. Royer's responses to paragraphs 1 to 11, above, are incorporated herein by 13. The averments of this paragraph are directed to a defendant other than Royer and, therefore, require no response from Royer. To the extent a response is required, the averments of this paragraph are denied. 14. reference. 15. COUNT II CONVERSION Stephenson v. Gerald Stevens Pittsburgh, Inc. and Thomas Royer Royer's responses to paragraphs 1 to 13, above, are incorporated herein by 17. reference. 18. 19. This paragraph states a legal conclusion to which no responsive pleading is required. To the extent a response is required, the averments of paragraph 15 are denied. 16. Denied. It is denied that Royer authorized or committed the conduct alleged in the complaint. While employed by Gerald Stevens Pittsburgh, Inc., Royer had no authority regarding the rejection of the lease forming the basis of the complaint or the vacation of the subject premises. It is further denied that Royer was the local manager of Gerald Stevens Pittsburgh, Inc. at the time of the events giving r/se to the complaint; Royer was Vice-President of Purchasing at the time. NEW MATTER Royer's responses to paragraphs 1 through 16, above, are incorporated herein by Royer was formerly employed by Defendant Gerald Stevens Pittsburgh, Inc. In March 2001, while employed by Gerald Stevens Pittsburgh, Inc., Royer was promoted from Regional Director of Operations to Vice-President of Pumhasing. 20. On April 23, 2001, Gerald Stevens Pittsburgh, Inc. filed a petition for bankruptcy. 21. Subsequent to the filing of the bankruptcy petition, the lease between Gerald Stevens Pittsburgh, Inc. and Plaintiff Harry L. Stephenson II was terminated as a result of the rejection of the lease by Gerald Stevens Pittsburgh, Inc, pursuant to the provisions of the Bankruptcy Code. 22. Royer's promotion to Vice-President of Purchasing, which occurred prior to the filing of the bankruptcy petition and the termination of the lease, placed him outside the chain of command within Gerald Stevens Pittsburgh, Inc. for decisions relating to the lease, as Royer's duties at the time were related primarily to purchasing. 23. Royer had no involvement with the termination of the lease or the vacation of the premises; nor did he supervise or control the actions of any employees of Gerald Stevens Pittsburgh, Inc. with regard to the termination of the lease or the vacation of the premises. 24. Upon information and belief, Royer avers that the agreement for the purchase of Stephenson's Flowers by Gerald Stevens Pittsburgh, Inc. contains provisions allocating the benches and heating system at issue in this lawsuit to Gerald Stevens Pittsburgh, Inc. as a condition of sale. Dated: February 13, 2002 Respectfully submitted, McNEES WALLACE & NURICK LLC By Kandice f e/~r~vin~,.~' I.D. No. 86345 100 Pine Street P.O. Box 1166 Harrisburg, PA 17108-1166 (717) 232-8000 Attorneys for Defendant Thomas Royer I hereby verify that the statements contained in this Answer and New Matter are true and correct to the best of my knowledge, information and beliff. I unde~tand that false statements herein are made subject to penalty of 18 Pa. C.S. Section 4904, relating to unswom falsification to authorities. D~e: February 12, 2002 Thomas Roy~~ CERTIFICATE OF SERVICE I hereby certify that on this date a tree and correct copy of the foregoing document was served by first-class mail, postage prepaid, upon the following: David J. Lanza, Esquire Johnson, Duffle, Stewart & Weidner 301 Market Street P.O. Box 109 Lemoyne, PA 17043-0! 09 Dated: February 13, 2002 Johnson, Duffle, Stewart & Weidner By: David J. Lanza I.D. No. 55782 301 Market Street P. O. Box 109 Lemoyne, Pennsylvania ! 7043-0109 (717) 761-4540 Attorneys for Plaintiff HARRY L. STEPHENSON, II, Plaintiff GERALD STEVENS PITTSBURGH, INC. and : THOMAS ROYER, : Defendant(s) IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 02-139 CIVIL ACTION - LAW PLAINTIFF'S ANSWER TO NEW MA TTER OF DEFENDANT THOMAS ROYER AND NOW, this ~tJ day of March 2002, comes Plaintiff, HARRY L. STEPHENSON, II, by and through his attorneys, Johnson, Duffle, Stewart & Weidner, and files this Answer to New Matter, and in support thereof responds as follows: 17. Plaintiff incorporates the averments of Paragraphs one (1) through sixteen (16). 18. Admitted in part. Denied in part. It is admitted that Royer was affiliated in some capacity with Defendant, Gerald Stevens Pittsburgh, Inc. Defendant Royer's current status is unknown to Plaintiff. 19. Denied. Plaintiff lacks specific knowledge regarding the timing or nature of any such promotion or the identity of any alleged new position of Defendant Royer. 20. Admitted. 21. Admitted in part. Denied in part. It is admitted that the lease was terminated subsequent to the filing of the Bankruptcy Petition. By way of denial, the termination of this lease has no bearing on Defendants' contractual and common law duty to refrain from property destruction and conversion. 22. Denied. Defendant Royer's exact title and the timing of his promotion are irrelevant to the issues of this case. Defendant Royer status as vice president gave him continuing authority over the functions and duties of those individuals responsible for the destruction and conversion of Plaintiff's property. 23. Denied. Defendant Royer's status as vice president conferred supervisory and management status over the remaining individuals directly responsible for the destruction and conversion of Plaintiff's property. By way of further denial, Defendant Royer never r(~nounced or communicated any change in status to Plaintiff prior to the termination of the lease. 24. Denied. The real estate at issue in this case was never sold to Defendant, Gerald Stevens Pittsburgh, Inc. None of the fixtures on this real estate were part of any sale transaction. The real estate owned by Plaintiff was occupied by Defendants solely as a result of the lease attached to Plaintiff's Complaint. WHEREFORE, Plaintiff demands judgment against Defendants Gerald Stevens and Royer in the amount of Thirteen Thousand Six Hundred Seventy and 00/100 Dollars ($13,670.00). Respectfully submitted, JOHNSON, DUFFLE, STEWART & WEIDNER By:. ~ David J. Lanza Attorney I.D. No. 55782 301 Market Street P.O. Box 109 Lemoyne, PA 17043-0109 Telephone (717) 761-4540 Attorneys for Plaintiff :155983 VERIFICATION I, HARRY L. STEPHENSON, II, do verify that the statements made in the foregoing Answer to New Matter are true and correct to the best of my knowledge, information and belief. I understand that false statements made herein are subject to the penalties of 18 Pa.C.S. {}4904 relating to unsworn falsification to authorities. CERTIFICATE OF SERVICE AND NOW, this ~-t'/ day of March 2002, the undersigned does hereby certify that he did this date serve a copy of the foregoing ANSWER TO NEW MATTER upon the other parties of record by causing same to be deposited in the United States Mail, first class postage prepaid, at Lemoyne, Pennsylvania, addressed as follows: Kandice J. Kerwin, Esquire McNees Wallace & Nurick, LLC 100 Pine Street P.O. Box 1166 Harrisburg, PA 17108-1166 JOHNSON, DUFFLE, STEWART & WEIDNER David J. Lanza SHERIFF'S RETURN - U.S. CERTIFIED MAIL CASE NO: 2002-00139 P COMMONWEALTH OF PENNSYLVANIA COUNTY OF CUMBERLAND STEPHENSON HARRY L II VS. GERALD STEVENS PITTSBURGH INC R. Thomas Kline , Sheriff of Cumberland County, Pennsylvania, who being duly sworn according to law served the within named DEFENDANT ,GERALD STEVENS PITTSBURGH INC , by United States Certified Mail postage prepaid, on the 17th day of January ,2002 at 0000:00 HOURS, at 1000 S FED HWY #101 FORT LAUDERDALE, FL 33316 and attested copy of the attached COMPLAINT & NOTICE with , a true Together receipt card was signed by VELDA WRIGHT 01/23/2002 . Additional Comments: The returned on Sheriff's Costs: Docketing 18.00 Cert Mail 4.86 Affidavit .00 Surcharge 10.00 .00 32.86 /R. Thomas Kline Sheriff of Cumberland County Paid by JOHNSON DUFFIE STEWART WEIDNER on 04/23/2002 Sworn and subscribed to before me this ~-~' day of ~ J~2_ A.D. ofiotary ' SHERIFF'S RETURN - OUT OF COUNTY CASE NO: 2002-00139 P COMMONWEALTH OF PENNSYLVANIA: COUNTY OF CUMBERLAND STEPHENSON HARRY L II VS GERALD STEVENS PITTSBURGH INC R. Thomas Kline , Sheriff or Deputy Sheriff who being duly sworn according to law, says, that he made a diligent search and and inquiry for the within named DEFENDANT , to wit: ROYER THOMAS but was unable to locate Him deputized the sheriff of LEBANON in his bailiwick. He therefore County, Pennsylvania, to serve the within COMPLAINT & NOTICE On April 23rd , 2002 , this office was in receipt of the attached return from LEBANON Sheriff's Costs: Docketing Out of County Surcharge Dep Lebanon Co 6.00 9.00 10.00 34.15 .00 59.15 04/23/2002 So answers ~ ~ ~_.-.~' Sheriff of Cumberland County JOHNSON DUFFIE STEWART WEIDNER Sworn and subscribed to before me this g~ day of ~ A.D. ! t Prothonotar~ - Dk~t Qu~ - Intran~t CARLISLE.POST.OFFICE TIT 245 5990 ~' P.~I Page I ell Tre=ldConflrm - Intmnst Item Inquiry Item 87~0 Thl~ ~ wle delivered on 01NJN002 It 11:4S. Enter Request Type end Item Number:- Quick Seemh (T Extenflve Search C Inquire on multiple Itemi. Go to the Product Trecking Syltem Hq[ne Pege. Postage I Certified Fee Return Receipt Fee (Endorsement Required) Restricted Delivery Fee (Endorsement Required) Total Postage & Fees Postmark Here 4~2~0~ 'US Postal Servioe 4/22/2002 09:28 PAGE 1/1 UNITED ST/ TES POST/JL SERVICE. Date: 04/22/2002 Fax Transmission To: JODY SMITH Fax Number: 717-240-6397 Dear JODY SMITH: The following is in response to your 04/16/2002 request for delivery information on your Certified item number 70001670000187901014. The delivery record shows that this item was delivered on 01/23/2002 at 11:48 AM in FORT LAUDERDALE, FL 33316. The scanned image of the recipient information is provided below. Thank you for selecting the Postal Service for your mailing needs. If you require additional assistance, please contact your local Post Office or postal representative. Sincerely, United States Postal Service ~n The Court of Common Pleas of Cumberland County, Pennsylvania Ha~£y L. Stephenson II VS. Gerald Stevens Pittsburgh, Inc et al SERVE: Thomas Royer No. 02 139 civil Now, January 17, 2002 , I, SHERIFF OF CUMBERLAND COUNTY, PA, do hereby deputize the Sheriff of Lebanon County to execute this Writ, this deputation being made at the request and risk of the Plaintiff. Sheriff of Cumberland County, PA Now, within Affidavit of Service ., 20 ., at o'clock M. served the upon at by handing to and made ka~own to copy of the original So answers, the contents thereof. Sworn and subscribed before me this __ day of ,20 Sheriff of County, PA COSTS SERVICE MILEAGE AFFIDAVIT CIVIL ACTION COMPLAINT No. 02-139 HARRY L. STEPHENSON, II vs. THOMAS ROYER Lebanon, PA, February 11, 2002 (RETURN TO CUMBERLAND CO. SHERIFF) DOCKET PAGE 17384 STATE OF PENNSYLVANIA } COUNTY OF LEBANON } SS: Basil E. Achey, Deputy Sheriff, being duly sworn according to law, deposes and says that he served the within CIVIL ACTION COMPLAINT upon THOMAS ROYER, the within named DEFENDANT, by handing a true and attested copy thereof, personally to him, on January 25, 2002, at 9:33 o'clock A.M., at 810 South Twelfth Street, Lebanon (City), Lebanon County, Pennsylvania, and by making known to him the contents of the same. Sworn to and subscribed before me this llth da¥of~February, A.D., 2002 ( N~XRIAL SiAL SHERIFF'S COSTS IN ABOVE PROCEEDINGS Advanced costs paid on 1/21/02 Check No. 35343 Amount 100.00 Costs incurred: Amount 34.15 Refund: Check No.11250 Amount 65.85 Ail Sheriff's Costs shall be due and payable when services are performed, and it shall be lawful for him to demand and receive from the party instituting the proceedings, or any party liable for the costs thereof, all unpaid sheriff's fees on the same before he shall be obligated by law to make return thereof. Sec. 2, Act of June 20, 1911, P.L. 1072 Johnson, Duffle, Stewart & Weidner By: David J. Lanza I.D. No. 55892 301 Market Street P. O. Box 109 Lemoyne, Pennsylvania 17043-0109 (717) 761-4540 Attorneys for Plaintiff HARRY L. STEPHENSON, II., GERALD STEVENS THOMAS ROYER, Plaintiff PI']-rSBURGH, Defendants INC. and IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 02-139 CIVIL CIVIL ACTION - LAW TO THEPROTHONOTARY: PRAECIPE FOR DEFAULT JUDGMENT Enter judgment by default in favor of the Plaintiff, and against only the Defendant, GERALD STEVENS PITTSBURGH, INC., in the amount of $13,670.00, plus interest and costs, by reason of the failure of the Defendant to enter an appearance or to file an Answer within 20 days of the date of service of the Complaint endorsed with a Notice to Defend. It is hereby certified that written notice of intention to file this Preecipe was mailed to the Defendant, GERALD STEVENS PITTSBURGH, INC., at 1800 Eller Drive, Suite 300, Fort Lauderdale, Florida 33316, on April 22, 2002; said notice being mailed after the default occurred and at least ten (10) days prior to the date of the filing of this Praecipe. A true and correct copy of the aforesaid notice, together with receipt for mailing, are attached hereto and made a part hereof. Dated: : 157894 Respectfully submitted, JBi:HNSON, ,~,/~,~ART & WEIDNER David J. Lanzh Attorney I.D. No. 55782 301 Market Street P.O. Box 109 Lemoyne, PA 17043-0109 Telephone (717) 761.-4540 Attorneys for Plaintiff Johnson, Duffle, Stewart & Weidner By: David y. Lanza I.D. No. 55892 301 Market Street P. O. Box 109 Lemoyne, Pem~sylvania 17043-0109 (717) 761-4540 Attorneys £or PlamtizT HARRY L. STEPHENsoN, Plaintiff : GERALD STEVENs P/TTSBURGH, INC. and THOMAs ROYER, Defendants : TO: DATE: GERALD STEVENs PITTSBURGH, INC. 1800 El~er Dr~ye, Su/te 300 Fort Lauderda/e, Florida 33316 April 22, 2002 IN THE COURT OF COMMo CUMBERLAND C ? PLEAs OF OUNTY, PENNSYLVANIA NO. 02-139 CIVIL CIVIL ACTION. LAW IMPORTANT NOTICE YOU ARE IN DEFAULT BECAUSE YOU HAVE FAILED TO ENTER A WRITYEN APPEARANCE PERSONALLY OR BY ATTORNEY AND FILE IN WRITING WITH THE COURT YOUR DEFENSEs OR OBJECTIONS TO THE CLAIMS SET FORTH AGAINST YOU. UNLESs YOU ACT WITHIN TEN (10) DAYS FROM THE DATE OF THIS NOTICE, A JUDGMENT MAY BE ENTERED AGA/NST YOU WITHOUT A HEARING AND YOU MAY LOSE YOUR PROPERTY OR HAVE A LAWYER OR CANNOT AFFORD ONE, WHERE YOU CAN GET LEGAL HELP: ,.-,-r~JC~//-/~- FOLLOWING OFFICE TO FIND OUT Cumber/and County Bar Assoc/at/on 2 Liberty A venue Cad/s/e, Pennsylvania 17013 Telephone: (717) 249-3166 :157416 Respectfully submitted, JOHNSON, DU,F~IE, STEWART & WEIDNER BY:~z_..' D vid Endorsement Required) Endorsement Required) HARRY L. STBP~ENSON, II, Plaintiff VS. GERALD STEVENS PITTSBURGH, INC., and THOMAS ROYER, Defendant IN THB COURT C,F COM}{ON PLEAS OF CUMBEPJ~%ND COUITI~/, PENNSYLVANIA CIVIL ACTION - LAW 02 - 139 CIVIL TERM WHEREAS, Defendant Gerald Stevens Pittsburgh Inc. entered into a Standard Lease Agreement dated December 9, 1999 and Addendum to Standard Lease Agreement dated December 9, 1999 with respect to property located at 145 South Locust Street, Camp Hill (Lower Allen Township), Ctt~berland County, Pennsylvania, owned by ~arry L. Stephenson and Bett~ M. Stephenson, said real estate being more fully described an a legal description which is attached hereto, marked Exhibit "A", and incorporated herein; and WHEREAS, Defendant Gerald Stevens Pittsburgh Inc. and Harry L. Stephenson and Betty M. Stephenson entered into a Memorandum of Lease dated January 24, 2000 referencing the Standard Lease Agreement dated December 9, 1999 and Addendum to Standard Lease Agreement dated December 9, 1999, said M~morandum of Lease being recorded on September 6, 2000 in Miscellaneous Record Book 654, Page 284, in the office of the Recorder of Deeds in and for cumberland County, Pennsylvania; and WHEREAS, Harry L. Stephenson, II, Plaintiff, commenced a civil action against Defendant Gerald Stevens Pittsburgh Inc. docketed to the above-captioned matter on or about January 10, 2002, and thereafter, filed a praecipe for and entered a default judgement on May 6, 2002 against Defendant Gerald Stevens Pittsburgh Inc. in the amount of $13,670.00, plus interests and costs; and WHEREAS, Harry L. Stephenson and Betty M. Stephenson desire to sell and convey the real property located ~45 South Locust Street, Camp Hill (Lower Allen Township) Cumberland County, Pennsylvania, said real estate being more :fully described in a legal description which is attached hereto, marked ~xhibi~ "A", without future claim and £ree of any liability as a result of the above-referenced judgement entered in favor of Plaintiff, Harry L. Stephenson, II; and WHEREAS, Plaintiff, Harry L. Stephenson, II, desires to execute this partial release solely for the, purpose of releasing the property located at 145 South Locust Stz:eet, Camp Hill (Lower Allen Township) Cumberland County, Pennsylvania, owned by Harry L. Stephenson and Betty M. Stephenson, said real estate being more fully described in a legal description which is attached hereto, marked Hxhibit "A", from the judgment docketed to No. 02-139 in the Court of Common Pleas of Cumberland County; and NOW, THENEFORE, in consideration of the sum of $I.00 and other good and valuable consideration, it is agreed as follows~ 1. Harry L. Stephen$on, II, on behalf of himself, his heirs and assigns, does hereby remlse, release, quit-claim and forever discharge any demands, cla/ms, actions and[ causes of actions, including any interest, demand, right or claim acquired as result of the judgment docketed to No. 02-139, Cumberland County, ~ennsylvania, as such demand, claims, action., demand and judgment applies and attaches to the real estate located at 145 South Locust Street, Camp Hill (LOwer Allen Township} Cumberland County, Pennsylvania, owned by Harry L. Stephenson and Betty M. Stephenson, said real estate being more fully described in a legal description which is attached hereto, marked Elxhibit "A". _ . 2. Th%s Partial Release of Judgement is s~&ely to release the real estat~ ]~ ..... ended to apply S~reet, Ca/nD Hill ,~ ....... ---_- .... ~u =~ ~: ~outh Locust Penns,,lvani_= ~ ~=~ ~±en Township) Cumberland Cou ~ ~, ovaleu D H nty~ Ste . Y arty L. Stephenson and Be phenson, sa~d rea~ estate bei ............ try M. ~ ~z~ ru~ly Oescr~Ded in a legal description which is attached hereto, marked Exhibit "A", so as to release any claim as a result of the aforesaid judgment docketed to No. 02-139 in Cumberland County, Pennsylva~.~ia, and this Partial Release of Judpm~nt shall not be construed to limit any other rights, claims, demands or actions against ~hich may exist as a result of said judgment. IN WITNESS WHEREOF, Harry L. Stephenson, II, has caused these presents to be duly executed, intending to thereby to be legally bound, this ~-~ day of ~. , 2004. WITNESS: I-lari-¥ L. Sem'Ph,enson, II COMMONWEALTH OF PENNSYLVANIA COUNTY OF CUMBE~ On this, the i.~'k-day of September, 2004, before me, the undersigned officer, personally appeared MARRY L. STEP~ENSON, II, known to me (or satisfactorily proven} to be the person whose name was subscribed to the within instrument, and acknowledged that he executed the same for the purposes therein contained. IN WITNESS W~EREOF, I hereunto set my hand and official seal. Notary Public My Co~mission Expires: | N01AR~$~[ · I BONNIE L Wfi. L AMS, NOTARY PUBLIC J ISHIREMANSTOWN BOROn, CUMBERLAND LMY COMMISSION EXPIRES ~PRIL ]8. 2005J