HomeMy WebLinkAbout12-0152SHERIFF'S OFFICE OF CUMBERLAND COUNTY
Ronny R Anderson
Sheriff ?' r t ,ti,rr
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Jody S Smith I? FE?
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Chief Deputy '
Richard W Stewart JE ALAN, ;0U-t4TY
Solicitor - ` , tEHNS YLVA.14I A
Camp Hill Realty Associates, LP Case Number
vs.
Excel Homes Group, LLC 2012-152
SHERIFF'S RETURN OF SERVICE
01/20/2012 01:59 PM - Shawn Gutshall, Deputy Sheriff, who being duly sworn according to law, states that on January
20, 2012 at 1359 hours, he served a true copy of the within Confession of Judgment, Complaint for
Confession of Judgment for Possession of Real Property and Rule 2974.2 Notice, upon the within named
defendant, to wit: Excel Homes Group, LLC, by making known unto Lynn Craker, Accounts Payable
Associate for Excel Homes Group, LLC at 300 Corporate Center Drive, Suite 602, Camp Hill, Cumberland
County, Pennsylvania 17011 its contents and at the same time handing to her personally the said true and
correct copy of the same.
1.
GU ALL, DEPUTY
SHERIFF COST: $43.00
January 24, 2012
SO ANSWERS,
RON R ANDERSON, SHERIFF
(c? Gow ys, ite Shewf Te eo=:o`t Ir.;;
4
CAMP HILL REALTY ASSOCIATES
LP
Plaintiff,
V.
EXCEL HOMES GROUP, LLC
Defendant.
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY
NO. 12-152 Civil Term
NOTICE TO PLEAD
TO: CAMP HILL REALTY ASSOCIATES LP
You are hereby notified to file a written response to the enclosed New Matter within
twenty (20) days from service hereof or a judgment may be entered against you.
McNEES WALLACE & NURICK LLC
By (. ,
Ki erl . Colonna
PA #80362
100 Pine Street, P.O. Box 1166
Harrisburg, PA 17108
(717) 232-8000
Attorneys for Defendant
Excel Homes Group, LLC
Dated: February 17, 2012
THE PROTH"NO
2112FEB I7 PM 2:31
CU PENN YLVAN A TY
Kimberly M. Colonna, PA #80362
McNees Wallace & Nurick LLC
100 Pine Street, P.O. Box 1166
Harrisburg, PA 17108-1166
Tel. 717-232-8000
Fax. 717-237-5300
kcolonna@mwn.com
CAMP HILL. REALTY ASSOCIATES
LP
Plaintiff,
V.
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY
EXCEL HOMES GROUP, LLC
Defendant.
NO. 12-152 Civil Term
ANSWER TO COMPLAINT AND NEW MATTER
Defendant Excel Homes Group, LLC ("Excel"), by and through its attorneys McNees
Wallace & Nurick, LLC, files this Answer with New Matter to the Complaint filed by Plaintiff
Camp Hill Realty Associates:
PARTIES
1. CHRA is a Delaware Limited Partnership authorized to transact business in
Pennsylvania as a foreign business corporation.
ANSWER: Admitted upon information and belief.
1
2. Excel is a Delaware Limited Liability Company authorized to transact business in
Pennsylvania as a foreign business corporation.
ANSWER: Admitted.
3. Excel maintains a principal place of business at 300 Corporate Center Drive, Suite
602, Camp Hill, Pennsylvania, 17011.
ANSWER: Admitted.
JURISDICTION AND VENUE
4. Jurisdiction and venue are appropriate in this Court as the matter involves real
property located in Cumberland County, Pennsylvania.
ANSWER: Admitted.
5. Jurisdiction and venue are appropriate in this Court as the events and transactions out
of which CHRA causes of action arose occurred in Cumberland County,
Pennsylvania.
ANSWER: Admitted in part and denied in part. Excel admits jurisdiction and venue are
appropriate in this Court but denies the remaining allegations in paragraph 5 of the
Complaint.
6. Jurisdiction and venue are appropriate in this Court as the Defendant is located in and
conducts business in Cumberland County, Pennsylvania.
ANSWER: Admitted.
2
BACKGROUND
7. CHRA is the owner of real property located at 300 Corporate Center Drive, Camp
Hill, Pennsylvania (the "Property")
ANSWER: Admitted upon information and belief.
8. CHRA Maintains a multi-unit commercial office building (the "Building") on the
Property.
ANSWER: Admitted.
9. Pursuant to a Lease Agreement dated as of May 1, 2010 (the "Lease Agreement"),
CHRA leased Suite 602 of the Building (the "Premises") to Excel. A true and
accurate copy of the Lease Agreement is attached hereto as Exhibit `A' and made a
part hereof by reference.
ANSWER: Admitted in part and denied in part. Defendant admits that it entered into the
Lease Agreement dated May 1, 2010 and attached to the Complaint as Exhibit "A". The
remaining allegations of this paragraph attempt to characterize the content of the Lease
Agreement, which is a writing that speaks for itself, therefore, those allegations are denied
as stated.
10. Pursuant to paragraph 1.02 of the Lease Agreement, the lease term expired on March
31, 2011 (the "Expiration Date")
ANSWER: Admitted in part and denied in part. Defendant admits that the Lease
Agreement terminated on March 31, 2011. The remaining allegations of this paragraph
attempt to characterize the content of the Lease Agreement, which is a writing that speaks
for itself. Therefore, those allegations are denied as stated.
3
11. Pursuant to paragraphs 12.04 and 22.01 of the Lease Agreement, Excel was obligated
to remove from the Property and surrender the Premises on or before the Expiration
Date.
ANSWER: Denied. The Lease Agreement is a writing that speaks for itself. By way of
further answer, Excel was not obligated to vacate the Property upon the expiration of the
term in the Lease Agreement because Excel and Plaintiff entered into an oral lease which
extended Excel's right to occupy the Property.
12. Excel did not remove from the Premises as of the Expiration Date.
ANSWER: Admitted in part and denied in part. Excel admits that it did not vacate the
Property when the term in the written Lease Agreement expired. Excel denies any
implication that it was obligated to vacate the Property at that time. By way of further
answer, Excel was not obligated to vacate the Property upon the expiration of the term in
the Lease Agreement because Excel and Plaintiff entered into an oral lease which extended
Excel's right to occupy the Property.
13. By notice dated December 8, 2011 CHRA demanded that Excel vacate the Premises
and make outstanding payments due to CHRA. A true and correct copy of the
December 8, 2011 notice is attached hereto as Exhibit "B" and made a part hereof by
reference.
ANSWER: Admitted in part and denied in part. Excel admits that it received the letter
dated December 8, 2011 that is attached to the Complaint as Exhibit B. Excel denies the
remaining allegations of this paragraph as the letter is a writing that speaks for itself.
Excel further denies any implication that information set forth in the letter is accurate.
4
COUNTI
BREACH OF CONTRACT
14. The averments of all paragraphs set forth above are incorporated herein by reference
and made a part hereof as if fully set forth.
ANSWER: Paragraphs one (1) through thirteen (13) of Excel's Answer above are
incorporated herein by reference.
15. The Lease Agreement is a binding contract between CHRA and Excel that is
supported by adequate consideration.
ANSWER: Denied. The averments of this paragraph constitute conclusions of law to
which no response is required. To the extent that a response is deemed necessary, Excel
admits that the Lease Agreement was a binding contract between Excel and Plaintiff until
it terminated on March 31, 2011.
16. By failing to vacate the Premises on or before March 31, 2011, Plaintiff is in violation
of the Lease Agreement.
ANSWER: Denied. Excel denies that it violated the Lease Agreement by failing to vacate
the Property by March 31, 2011. By way of further answer, Excel was not obligated to
vacate the Property upon the expiration of the Lease Agreement because Excel and
Plaintiff entered into a oral lease which extended Excel's right to occupy the Property.
17. As of the date of the filing of this Complaint, Excel continues to occupy the Premises.
ANSWER: Admitted.
18. Excel's failure to vacate the Premises constitutes a breach of its obligations under the
Lease Agreement.
ANSWER: Denied. The averments of this paragraph constitute conclusions of law to
which no response is required. To the extent that a response is deemed necessary, the
averments are denied.
19. Excel's breach of the Lease Agreement entitles CHRA to damages.
ANSWER: Denied. The averments of this paragraph constitute conclusions of law to
which no response is required.
20. Paragraph 1.03 of the Lease Agreement provides, in relevant part, as follows:
Notwithstanding any other provision hereof, if [Excel] shall fail to vacate the
Premises and comply with its obligations hereunder, including, but not limited to, its
obligations pursuant to Article 12 hereof on or before the Expiration Date (the date
the Tenant vacates the Premises and complies with its obligations hereunder is
sometimes referred to herein as the "Tenant Vacation Date"), the Fixed Rent due to
the Landlord from the Expiration Date until the Tenant Vacation Date shall be in an
amount equal to (i) Three (ii) multiplied by (a) the Assumed Annual Fixed Rent...,
(b) divided by 365 and (c) the resulting quotient multiplied by the number of days
from the Expiration Date until the Tenant Vacation Date. For purposes of the
preceding sentence, the "Assumed Annual Fixed Rent" shall be deemed to be nine-
Four Thousand Nine Hundred Fifty-Nine and 96/100's Dollars ($94,959.96).
ANSWER: Denied as stated. The allegations of this paragraph incompletely quote a
portion of the Lease Agreement. The Lease Agreement is a writing that By way of further
answer, the Lease Agreement did not govern the parties' relationship after March 31, 2011.
21. Pursuant to the above-quoted provision, Excel is obligated to pay CHRA $780.49 per
day for each day it remains in the Premises after March 31, 2011.
ANSWER: Denied. The Lease Agreement is a writing that speaks for itself. By way of
further answer, the Lease Agreement did not govern the parties' relationship after March
31, 2011.
6
22. Paragraph 22.02 of the Lease Agreement provides, in relevant part, as follows:
22.02 [Excel] hereby agrees to indemnify and save [CHRA] harmless against all
costs, claims, loss and liability resulting from delay by [Excel] in
surrendering the Premises, including, without limitation, any claims made
by any succeeding tenant founded upon such delay. The Parties recognize
and agree that the rental value of the Premises after the expiration of the
Term and the potential loss to [CHRA] resulting from any failure by
[Excel] timely to surrender the Premises will be substantial, will exceed
the amount of monthly rent theretofore payable hereunder, and is currently
impossible of accurate measurement. [Excel] therefore agrees that if
possession of the Premises is not surrendered to [CHRA] upon the
Expiration Date or sooner termination of the Term, [Excel] will pay
[CHRA] as liquidated damages for such loss (and not for any other
damages Landlord may sustain) for each month and for each portion of
any month during which [Excel] holds over in the Premises after the
expiration or termination of the Term, a sum equal to two (2) times the
average Rent payable per month under the Lease during the last six
months of the Term...
ANSWER: Denied. The Lease Agreement is a writing that speaks for itself. By way of
further answer, the Lease Agreement did not govern the parties' relationship after March
31, 2011.
23. During the last six months of the Term, Excel's rental amount was $7,913.33 per
month.
ANSWER: Admitted.
24. Pursuant to §22.02 of the Lease Agreement, CHRA is entitled to payment in the
amount of $15,826.16 per month and for each portion of any month which Excel
holds over after March 31, 2011.
ANSWER: Denied. The averments of this paragraph assert conclusions of law to which no
response is required. To the extent that a response is required, Excel responds that the
7
Lease Agreement is a writing that speaks for itself. By way of further answer, the Lease
Agreement did not govern the parties' relationship after March 31, 2011.
25. Pursuant to §28.02 of the Lease Agreement, CHRA is entitled to out-of-pocket
expenses, including counsel fees, incurred by CHRA on account of Excel's failure to
perform its obligations under the lease agreement.
ANSWER: Denied. The averments of this paragraph assert conclusions of law to which no
response is required. To the extent that a response is required, Excel responds that the
Lease Agreement is a writing that speaks for itself. By way of further answer, the Lease
Agreement did not govern the parties' relationship after March 31, 2011.
26. Pursuant to §38.01 of the Lease Agreement, CHRA is entitled to a late charge of three
(3) cents for each dollar of such Fixed Rent or Additional Rent which shall not have
been paid to Landlord within such ten (10) days after becoming due and payable.
ANSWER: Denied. The averments of this paragraph assert conclusions of law to which no
response is required. To the extent that a response is required, Excel responds that the
Lease Agreement is a writing that speaks for itself. By way of further answer, the Lease
Agreement did not govern the parties' relationship after March 31, 2011.
27. Pursuant to §38.02 of the Lease Agreement, for each payment due to CHRA that is
not paid within ten (10) days of the date it becomes due, CHRA is entitled to interest
at a rate of 2% per month for each payment due from the date it becomes due until the
date it is paid.
ANSWER: Denied. The averments of this paragraph assert conclusions of law to which no
response is required. To the extent that a response is required, Excel responds that the
Lease Agreement is a writing that speaks for itself. By way of further answer, the Lease
Agreement did not govern the parties' relationship after March 31, 2011.
28. Inasmuch as Excel has not vacated the Premises, CHRA's damages are continuing to
accrue.
ANSWER: Denied. The averments of this paragraph assert conclusions of law to which no
response is required. To the extent that a response is required, Excel responds that the
Lease Agreement is a writing that speaks for itself. By way of further answer, the Lease
Agreement did not govern the parties' relationship after March 31, 2011.
WHEREFORE Defendant Excel Homes Group, LLC respectfully requests that Plaintiff
take nothing by way of its Complaint, and that judgment be entered in its favor and against
Plaintiff, and that Excel Homes Group, LLC be awarded costs of this action and all other relief
that the Court deems just and proper.
NEW MATTER
By way of further response to the entirety of Plaintiff's Complaint, Defendant sets forth
the following New Matter:
29. At or around the time that the term set forth in the Lease Agreement was ending,
Excel and Plaintiff entered into an oral lease by which Plaintiff agreed that Excel
could continue to occupy the Property.
30. Because of the oral lease, Excel is not a "holdover" tenant under the written Lease
Agreement, which expired on March 31, 2011.
31. Plaintiff's Complaint fails to state a claim upon which relief can be granted.
9
32. The damages suffered by Plaintiff, if any, resulted from the failure of Plaintiff to
mitigate damages.
33. Plaintiff's claims are barred by Plaintiff's prior breach.
34. Some or all of the damages sought by Plaintiff constitute unenforceable penalties
under Pennsylvania law.
35. Plaintiff's claims may be barred, in whole or part, by the doctrines of subsequent
modification, waiver, estoppel and/or laches.
36. Plaintiff's claims are barred by accord and satisfaction.
37. Plaintiff's claims are barred by payment.
38. Plaintiff's damages, if any, were caused, in. whole or in part, by Plaintiff's own
actions.
WHEREFORE Defendant Excel Homes Group, LLC respectfully requests that Plaintiff
take nothing by way of its Complaint, that judgment be entered in its favor and against Plaintiff,
and that Excel Homes Group, LLC be awarded costs of this action and all other relief that the
Court deems just and proper.
McNEES WALLACE & NURICK LLC
By Kimberly V. Colonna, PA #80362
100 Pine Street, P.O. Box 1166
Harrisburg, PA 17108-1166
Tel. 717-232-8000
Fax. 717-237-5300
kcolonna@mwn.com
Attorneys for Defendant,
Excel Homes Group, LLC
Dated: February 17, 2012
10
VERIFICATION
Subject to the penalties of 18 Pa. C.S. § 4904, 1, Brent Werner, certify that I am
authorized to make this verification on behalf of Excel Homes Group, LLC and that the facts set
in the foregoing Answer and New Matter are true and correct to the best of my knowledge,
Excel Homes Group, LLC
Brent Werner, CFO
12
CERTIFICATE OF SERVICE
I, Kimberly M. Colonna certify that a true and correct copy of the foregoing Answer to
Complaint and New Matter was served upon the following person by first class mail, postage
prepaid, on February 17, 2012.
Ronald L. Finck, Esq.
METTE, EVANS & WOODSIDE
P.O. Box 5950
Harrisburg, PA 17110-0950
Attorneys for Plaintiff
Kim-tuber . Colonna
l
0 V0
'Tv
?ISYLVA H I A
Ronald L. Finck, Esquire
Pa. Sup. Ct. I.D. No. 89985
METTE, EVANS & WOODSIDE
3401 North Front Street
P.O. Box 5950
Harrisburg, PA 17110-0950
Phone: (717) 232-5000
Fax: (717) 236-1816
rl fi nck(cr,,mette. com
CAMP HILL REALTY ASSOCIATES,
LP
Plaintiff
V.
EXCEL HOMES GROUP, LLC
Defendant
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PENNSYLVANIA
NO. 12-152 Civil Term
PLAINTIFF'S PRELIMINARY OBJECTIONS
TO ANSWER AND NEW MATTER OF THE DEFENDANT
The Plaintiff/Respondent, CAMP HILL REALTY ASSOCIATES, LP ("CHRA"), by and
through its attorneys, METTE, EVANS & WOODSIDE, files these Preliminary Objections to
Answer and New Matter of Defendant, Excel Homes Group, LLC ("Excel), as follows:
CHRA initiated this action against Excel on January 13, 2012 with the filing of a
single-count Complaint sounding in Breach of Contract alleging Excel, as tenant, breached a
commercial lease agreement with landlord, CHRA.
2. On or about January 17, 2012, Excel filed an Answer with New Matter to
CHRA's Complaint.
FIRST PRELIMINARY OBJECTION -
INSUFFICIENT SPECIFICITY/ FAILURE TO CONFORM TO RULE
Throughout its Answer to the Complaint, Excel alleges the existence of an oral
agreement between CHRA and Excel which oral agreement, Excel appears to allege, either
modifies or supersedes the written lease agreement attached to CHRA's Complaint as Exhibit
`A.' (Ans. at ¶T 11, 12, 16, 29, & 30)
4. Rule 1019(f) of the Pennsylvania Rules of Civil Procedure requires that
averments of time and place be specifically stated. Pa. R.C.P. 1019(f).
5. Under Pennsylvania law, a party alleging the existence of an oral agreement must
specifically identify when the agreement was reached and the specific individuals involved in
striking the oral deal. See Pratter v. Penn Treaty American Corp., 11 A.3d 550, 562 (Pa.
Commw. 2010)
6. Excel's Answer and New Matter fail to allege facts sufficient for this Court to
find that an oral contract supported by an offer, acceptance, and consideration came into
existence between the parties.
7. Excel's Answer and New Matter fail to conform with fact-pleading requirements
mandated by Pennsylvania law.
WHEREFORE, Plaintiff, respectfully requests that all references to an oral agreement in
the Answer and New Matter of Defendant, Excel be stricken for failure to conform to rule of law
and insufficient specificity. In the alternative, Plaintiff respectfully requests that Defendant be
Ordered to amend its Answer with New Matter.
SECOND PRELIMINARY OBJECTION -
INSUFFICIENT SPECIFICITY/ FAILURE TO CONFORM TO RULE
8. The averments of all paragraphs set forth above are incorporated herein by
reference as if fully set forth.
9. In Excel's New Matter, Excel contends that CHRA's claims are barred by
CHRA's prior breach, by CHRA's own actions, and by CHRA's failure to mitigate damages.
(Ans. at ¶T32, 33, & 38)
10. In addition, Excel states that the Plaintiff's claims are barred by the affirmative
defenses of modification, waiver, estoppel, laches, accord and satisfaction, and payment. (Ans.
at $35, 36, & 37)
11. Excel's New Matter is deficient of facts which would support the factual and
affirmative defenses identified above.
12. By failing to allege facts to support its defenses of prior breach, misfeasance,
failure to mitigate, modification, waiver, estoppel, laches, accord and satisfaction, and payment,
Excel's pleading fails to comply with the fact-pleading requirements of Pennsylvania law.
WHEREFORE, Plaintiff, respectfully requests that paragraphs 32-33 and 35-38 of
Defendant's New Matter be stricken for insufficient specificity. In the alternative, Plaintiff
respectfully requests that Defendant be Ordered to amend its Answer with New Matter.
Respectfully submitted,
METTE, EVANS & WOODSIDE
By: AUJ?A_ -s ,
Ronald L. Finck, Esquire
Sup. Ct. I.D. No. 89985
3401 North Front Street
P.O. Box 5950
Harrisburg, PA 17110-0950
(717) 232-5000 - Phone
Attorneys for PlaintifflRespondent,
Camp Hill Realty Associates, LP
Date: March 6, 2012
CERTIFICATE OF SERVICE
I certify that I am this day serving a copy of the foregoing document upon the person(s)
and in the manner indicated below, which service satisfies the requirements of the Pennsylvania
Rules of Civil Procedure, by depositing a copy of same in the United States Mail, with first-class
postage, prepaid, addressed as follows:
Kimberly M. Colonna, Esquire
McNees Wallace & Nurick LLC
100 Pine Street
P.O. Box 1166
Harrisburg, PA 17108-1166
Attorney for Defendant/Petitioner
METTE, EVANS & WOODSIDE
By: RAI( -)- . 4'?
Ronald L. Finck
Sup. Ct. I.D. No. PA 89985
3401 North Front Street
P.O. Box 5950
Harrisburg, PA 17110-0950
(717) 232-5000 - Phone
(717) 236-1816 - Facsimile
rlfinck(aD-mette.com
Attorneys for Plaintiff/Respondent
Date: March 6, 2012
552901v1
k I r?
PRAECIPE FOR LISTING CASE FOR ARGUMENT ?.-
Hi.EU-G? 14
(Must be typewritten and submitted in triplicate) L? 'PP's"3?t0!?OTA
TO THE PROTHONOTARY OF CUMBERLAND COUNTY: (List the withinI
Argument Court.)
CAPTION OF CASE
(entire caption must be stated in full)
Camp Hill Realty Associates, LP
vs.
11: 55
p?EMNSYLVRMIp TY
Excel Homes Group, LLC
No. 12 152
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plaintiffs motion for new trial, defendant's demurrer rat
State matter to be argued (i.e.
1
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,
.
complaint, etc.): =::0 =
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Preliminary Objections to Answer and New Matter of the Defendant 1
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2. Identify all counsel who will argue cases: mac, CD
=
(a) for plaintiffs: =CD
Ronald L. Finck, Esq., Metter Evans & Woodside
(Name and Address)
3401 N. Front Street, Harrisburg, PA 17110
(b) for defendants:
Kimberly M. Colonna, Esq., McNees Wallace & Nurick, LLC
(Name and Address)
100 Pine Street, Harrisburg, PA 17108-1166
3. 1 will notify all parties in writing within two days that this case has been listed for
argument.
4. Argument Court Date:
April 13, 2012
A
I`
Signature
qor* ? L.
Print your name
Plaintiff
2012 Attorney for
March 12
,
Date:
INSTRUCTIONS:
1. Original and two copies of all briefs must be filed with the COURT
ADMINISTRATOR (not the Prothonotary) before argument.
2. The moving party shall file and serve their brief 14 days prior to argument.
3. The responding party shall file their brief 7 days prior to argument.
4. If argument is continued new briefs must be filed with the COURT
ADMINISTRATOR (not the Prothonotary) after the case is relisted.
C'k? lay 373
Ronald L. Finck, Esquire
Pa. Sup. Ct. I.D. No. 89985
METTE, EVANS & WOODSIDE
3401 North Front Street
P.O. Box 5950
Harrisburg, PA 17110-0950
Phone: (717) 232-5000
Fax: (717) 236-1816
rlfinck a,mette.com
CAMP HILL REALTY ASSOCIATES,
LP
Plaintiff
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PENNSYLVANIA
V.
EXCEL HOMES GROUP, LLC
Defendant
TO THE PROTHONOTARY:
: NO. 12-152 Civil Term
PRAECIPE
Please list the Plaintiff's Preliminary Objections to Answer and New Matter of the
Defendant in the above-captioned action for argument on April 13, 2012.
Respectfully submitted,
METTE, EVANS & WOODSIDE
By: R""a 'X
Ronald L. Finck, Esquire
Sup. Ct. I.D. No. 89985
3401 North Front Street
P.O. Box 5950
Harrisburg, PA 17110-0950
(717) 232-5000 - Phone
Attorneys for Plaintiff
Date: March 12, 2012
CERTIFICATE OF SERVICE
I certify that I am this day serving a copy of the foregoing document upon the person(s)
and in the manner indicated below, which service satisfies the requirements of the Pennsylvania
Rules of Civil Procedure, by depositing a copy of same in the United States Mail, with first-class
postage, prepaid, addressed as follows:
Kimberly M. Colonna, Esquire
McNees Wallace & Nurick LLC
100 Pine Street
P.O. Box 1166
Harrisburg, PA 17108-1166
Attorney for Defendant
METTE, EVANS & WOODSIDE
By: ?lU3d.?:?z
Ronald L. Finck
Sup. Ct. I.D. No. PA 89985
3401 North Front Street
P.O. Box 5950
Harrisburg, PA 17110-0950
(717) 232-5000 - Phone
(717) 236-1816 - Facsimile
rlfinck(a-mette.com
Attorneys for Plaintiff
Date: March 12, 2012
552965v1
CAMP HILL REALTY ASSOCIATES
LP
Plaintiff,
V.
EXCEL HOMES GROUP, LLC
Defendant.
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY
NO. 12-152 Civil Term
ORDER GRANTING PRO HAC VICE ADMISSION
AND NOW, this day of 2012, upon consideration of the
Motion for Pro Hac Vice Admission of W. Todd Woelfer and Trevor O. Gasper, it is HEREBY
ORDERED that the Motion is GRANTED.
The Prothonotary shall serve a copy of this Order upon all counsel of record and
unrepresented parties in accordance with Pa. R. Civ. P. 236 and C.C.R.P. 208.3.
BY THE COURT:
J.
Distribution:
?? Ronald L. Finck, Esq., METTE, EVANS & WOODSIDE, P.O. Box 5950, Harrisburg, PA
17110-0950
? Kimberly M. Colonna, Esq., McNEES WALLACE & NURICK LLC, 100 Pine St., P.O. Box
1166, Harrisburg, PA 17108-1166 c=k
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Kimberly M. Colonna, PA #80362
McNees Wallace & Nurick LLC
100 Pine Street, P.O. Box 1166
Harrisburg, PA 17108-1166
Tel. 717-232-8000
Fax. 717-237-5300
kcolonna@mwn.com
CAMP HILL REALTY ASSOCIATES
LP
Plaintiff, :
V.
EXCEL HOMES GROUP, LLC
Defendant.
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY
NO. 12-152 CT
AMENDED ANSWER TO COMPLAINT AND NEW MATTER
Defendant Excel Homes Group, LLC ("Excel"), by and through its attorneys McNees
Wallace & Nurick, LLC, files this Amended Answer with New Matter to the Complaint filed by
Plaintiff Camp Hill Realty Associates:
PARTIES
1. CHRA is a Delaware Limited Partnership authorized to transact business in
Pennsylvania as a foreign business corporation.
ANSWER: Admitted upon information and belief.
1
2. F?xcel is a Delaware Limited Liability Company authorized to transact business in
Pennsylvania as a foreign business corporation.
ANSWER: Admitted.
3. Excel maintains a principal place of business at 300 Corporate Center Drive, Suite
602, Camp Hill, Pennsylvania, 17011.
ANSWER: Admitted.
JURISDICTION AND VENUE
4. Jurisdiction and venue are appropriate in this Court as the matter involves real
property located in Cumberland County, Pennsylvania.
ANSWER: Admitted.
5. Jurisdiction and venue are appropriate in this Court as the events and transactions out
of which CHRA causes of action arose occurred in Cumberland County,
Pennsylvania.
ANSWER: Admitted in part and denied in part. Excel admits jurisdiction and venue are
appropriate in this Court but denies the remaining allegations in paragraph 5 of the
Complaint.
6. Jurisdiction and venue are appropriate in this Court as the Defendant is located in and
conducts business in Cumberland County, Pennsylvania.
ANSWER: Admitted.
2
BACKGROUND
7. CHRA is the owner of real property located at 300 Corporate Center Drive, Camp
Hill, Pennsylvania (the "Property")
ANSWER: Admitted upon information and belief.
8. CHRA Maintains a multi-unit commercial office building (the "Building") on the
Property.
ANSWER: Admitted.
9. Pursuant to a Lease Agreement dated as of May 1, 2010 (the "Lease Agreement"),
CHRA leased Suite 602 of the Building (the "Premises") to Excel. A true and
accurate copy of the Lease Agreement is attached hereto as Exhibit `A' and made a
part hereof by reference.
ANSWER: Admitted in part and denied in part. Defendant admits that it entered into the
Lease Agreement dated May 1, 2010 and attached to the Complaint as Exhibit "A". The
remaining allegations of this paragraph attempt to characterize the content of the Lease
Agreement, which is a writing that speaks for itself; therefore, those allegations are denied
as stated.
10. Pursuant to paragraph 1.02 of the Lease Agreement, the lease term expired on March
31, 2011 (the "Expiration Date").
ANSWER: Admitted in part and denied in part. Defendant admits that the Lease
Agreement terminated on March 31, 2011. The remaining allegations of this paragraph
attempt to characterize the content of the Lease Agreement, which is a writing that speaks
for itself. Therefore, those allegations are denied as stated.
3
11. Pursuant to paragraphs 12.04 and 22.01 of the Lease Agreement, Excel was obligated
to remove from the Property and surrender the Premises on or before the Expiration
Date.
ANSWER: Denied. The Lease Agreement is a writing that speaks for itself. By way of
further answer, Excel was not obligated to vacate the Property upon the expiration of the
term in the Lease Agreement because Excel and Plaintiff entered into an oral lease which
extended Excel's right to occupy the Property. Specifically, in January 2011, as the written
lease was approaching the Expiration Date, Excel, by and through its Chief Financial
Officer, Brent Werner, began discussions with CHRA, through CHRA's agent and
property management firm, Carrow Real Estate Services, PA, LLC ("Carrow"). Mr.
Werner's communications with CHRA and Carrow were with Helen Latchford, the local
property manager, and Serena Schulz, the Vice President of Carrow out of Albany, New
York.
At the time, Excel indicated that it would like additional space in the same building
and Carrow represented that Deloitte had a blanket right of first refusal of the other
existing space in Property. Excel decided that it wished to explore leasing space on the
second floor of the Property. On February 22, 2011, Carrow informed Excel that Deloitte
had not exercised its right of first refusal for the desired space on the second floor and the
parties began negotiating a lease for such space. Both parties recognized and
acknowledged that Excel's possession of the second floor space could only be accomplished
through a significant build-out of that space. Because the time needed to negotiate the lease
and conclude such build-out would necessarily take the parties well beyond the Expiration
4
Date of the Lease Agreement, Excel, by and through Brent Werner, and CHRA, by and
through Carrow and its Vice President, Serena Shulz, agreed, orally, that Excel could
continue to lease the Premises, on a month-to-month basis, while the parties moved
forward with negotiating a lease for the second floor space and arranging for the build-out
of that space. This oral agreement was reached on or about February 22, 2011. The Lease
Agreement expired on the Expiration Date and the parties continued to operate under the
oral, month-to-month lease from April 1, 2011 forward.
12. Excel did not remove from the Premises as of the Expiration Date.
ANSWER: Admitted in part and denied in part. Excel admits that it did not vacate the
Property when the term in the written Lease Agreement expired. Excel denies any
implication that it was obligated to vacate the Property at that time. By way of further
answer, Excel was not obligated to vacate the Property upon the expiration of the term in
the Lease Agreement because Excel and Plaintiff entered into an oral lease which extended
Excel's right to occupy the Property as set forth in Excel's answer to paragraph 11 above.
13. By notice dated December 8, 2011 CHRA demanded that Excel vacate the Premises
and make outstanding payments due to CHRA. A true and correct copy of the
December 8, 2011 notice is attached hereto as Exhibit "B" and made a part hereof by
reference.
ANSWER: Admitted in part and denied in part. Excel admits that it received the letter
dated December 8, 2011 that is attached to the Complaint as Exhibit B. Excel denies the
remaining allegations of this paragraph as the letter is a writing that speaks for itself.
Excel further denies any implication that information set forth in the letter is accurate.
5
COUNTI
BREACH OF CONTRACT
14. The averments of all paragraphs set forth above are incorporated herein by reference
and made a part hereof as if fully set forth.
ANSWER: Paragraphs one (1) through thirteen (13) of Excel's Answer above are
incorporated herein by reference.
15. The Lease Agreement is a binding contract between CHRA and Excel that is
supported by adequate consideration.
ANSWER: Denied. The averments of this paragraph constitute conclusions of law to
which no response is required. To the extent that a response is deemed necessary, Excel
admits that the Lease Agreement was a binding contract between Excel and Plaintiff until
it terminated on March 31, 2011.
16. By failing to vacate the Premises on or before March 31, 2011, Plaintiff is in violation
of the Lease Agreement.
ANSWER: Denied. Excel denies that it violated the Lease Agreement by failing to vacate
the Property by March 31, 2011. By way of further answer, Excel was not obligated to
vacate the Property upon the expiration of the Lease Agreement because Excel and
Plaintiff entered into an oral lease which extended Excel's right to occupy the Property as
set forth in response to paragraph 11 above.
17. As of the date of the filing of this Complaint, Excel continues to occupy the Premises.
ANSWER: Admitted.
18. Excel's failure to vacate the Premises constitutes a breach of its obligations under the
Lease Agreement.
6
ANSWER: Denied. The averments of this paragraph constitute conclusions of law to
which no response is required. To the extent that a response is deemed necessary, the
averments are denied.
19. Excel's breach of the Lease Agreement entitles CHRA to damages.
ANSWER: Denied. The averments of this paragraph constitute conclusions of law to
which no response is required.
20. Paragraph 1.03 of the Lease Agreement provides, in relevant part, as follows:
Notwithstanding any other provision hereof, if [Excel] shall fail to vacate the
Premises and comply with its obligations hereunder, including, but not limited to, its
obligations pursuant to Article 12 hereof on or before the Expiration Date (the date
the Tenant vacates the Premises and complies with its obligations hereunder is
sometimes referred to herein as the "Tenant Vacation Date"), the Fixed Rent due to
the Landlord from the Expiration Date until the Tenant Vacation Date shall be in an
amount equal to (i) Three (ii) multiplied by (a) the Assumed Annual Fixed Rent...,
(b) divided by 365 and (c) the resulting quotient multiplied by the number of days
from the Expiration Date until the Tenant Vacation Date. For purposes of the
preceding sentence, the "Assumed Annual Fixed Rent" shall be deemed to be nine-
Four Thousand Nine Hundred Fifty-Nine and 96/100's Dollars ($94,959.96).
ANSWER: Denied as stated. The allegations of this paragraph incompletely quote a
portion of the Lease Agreement. The Lease Agreement is a writing that speaks for itself.
By way of further answer, the Lease Agreement did not govern the parties' relationship
after March. 31, 2011
21. Pursuant to the above-quoted provision, Excel is obligated to pay CHRA $780.49 per
day for each day it remains in the Premises after March 31, 2011.
ANSWER: Denied. The Lease Agreement is a writing that speaks for itself. By way of
further answer, the Lease Agreement did not govern the parties' relationship after March
31, 2011.
7
22. Paragraph 22.02 of the Lease Agreement provides, in relevant part, as follows:
22.02 [Excel] hereby agrees to indemnify and save [CHRA] harmless against all
costs, claims, loss and liability resulting from delay by [Excel] in
surrendering the Premises, including, without limitation, any claims made
by any succeeding tenant founded upon such delay. The Parties recognize
and agree that the rental value of the Premises after the expiration of the
Term and the potential loss to [CHRA] resulting from any failure by
[Excel] timely to surrender the Premises will be substantial, will exceed
the amount of monthly rent theretofore payable hereunder, and is currently
impossible of accurate measurement. [Excel] therefore agrees that if
possession of the Premises is not surrendered to [CHRA] upon the
Expiration Date or sooner termination of the Term, [Excel] will pay
[CHRA] as liquidated damages for such loss (and not for any other
damages Landlord may sustain) for each month and for each portion of
any month during which [Excel] holds over in the Premises after the
expiration or termination of the Term, a sum equal to two (2) times the
average Rent payable per month under the Lease during the last six
months of the Term...
ANSWER: Denied. The Lease Agreement is a writing that speaks for itself. By way of
further answer, the Lease Agreement did not govern the parties' relationship after March
31, 2011.
23. During the last six months of the Term, Excel's rental amount was $7,913.33 per
month.
ANSWER: Admitted.
24. Pursuant to §22.02 of the Lease Agreement, CHRA is entitled to payment in the
amount of $15,826.16 per month and for each portion of any month which Excel
holds over after March 31, 2011.
ANSWER: Denied. The averments of this paragraph assert conclusions of law to which no
response is required. To the extent that a response is required, Excel responds that the
Lease Agreement is a writing that speaks for itself. By way of further answer, the Lease
Agreement did not govern the parties' relationship after March 31, 2011.
25. Pursuant to §28.02 of the Lease Agreement, CHRA is entitled to out-of-pocket
expenses, including counsel fees, incurred by CHRA on account of Excel's failure to
perform its obligations under the lease agreement.
ANSWER: Denied. The averments of this paragraph assert conclusions of law to which no
response is required. To the extent that a response is required, Excel responds that the
Lease Agreement is a writing that speaks for itself. By way of further answer, the Lease
Agreement did not govern the parties' relationship after March 31, 2011.
26. Pursuant to §38.01 of the Lease Agreement, CHRA is entitled to a late charge of three
(3) cents for each dollar of such Fixed Rent or Additional Rent which shall not have
been paid to Landlord within such ten (10) days after becoming due and payable.
ANSWER: Denied. The averments of this paragraph assert conclusions of law to which no
response is required. To the extent that a response is required, Excel responds that the
Lease Agreement is a writing that speaks for itself. By way of further answer, the Lease
Agreement did not govern the parties' relationship after March 31, 2011.
27. Pursuant to §38.02 of the Lease Agreement, for each payment due to CHRA that is
not paid within ten (10) days of the date it becomes due, CHRA is entitled to interest
at a rate of 2% per month for each payment due from the date it becomes due until the
date it is paid.
ANSWER: Denied. The averments of this paragraph assert conclusions of law to which no
response is required. To the extent that a response is required, Excel responds that the
9
Lease Agreement is a writing that speaks for itself. By way of further answer, the Lease
Agreement did not govern the parties' relationship after March 31, 2011.
28. Inasmuch as Excel has not vacated the Premises, CHRA's damages are continuing to
accrue.
ANSWER: Denied. The averments of this paragraph assert conclusions of law to which no
response is required. To the extent that a response is required, Excel responds that the
Lease Agreement is a writing that speaks for itself. By way of further answer, the Lease
Agreement did not govern the parties' relationship after March 31, 2011.
WHEREFORE Defendant Excel Homes Group, LLC respectfully requests that Plaintiff
take nothing by way of its Complaint, and that judgment be entered in its favor and against
Plaintiff, and that Excel Homes Group, LLC be awarded costs of this action and all other relief
that the Court deems just and proper.
10
NEW MATTER
By way of further response to the entirety of Plaintiff's Complaint, Defendant sets forth
the following New Matter:
29. At or around the time that the term set forth in the Lease Agreement was ending,
Excel and Plaintiff entered into an oral lease by which Plaintiff agreed that Excel
could continue to occupy the Property as set forth in Excel's answer to paragraph 11
above.
30. Because of the oral lease, Excel is not a "holdover" tenant under the written Lease
Agreement, which expired on March 31, 2011.
31. Plaintiff's Complaint fails to state a claim upon which relief can be granted.
32. The damages suffered by Plaintiff, if any, resulted from the failure of Plaintiff to
mitigate damages, as set forth below.
33. By August 2011, Excel and Plaintiff had negotiated all but a few remaining minor
terms of a new lease agreement for space on the second floor. After some additional
delays on the part of Plaintiff, by conference call on September 21, 2011, Carrow
informed Excel that Plaintiff's secured lender was unwilling to approve leases that
included tenant improvements.
34. The tenant improvement provision of the negotiated lease was a fundamental and
material basis for the bargain that had already been agreed-upon in principal.
35. After Plaintiff refused to provide the agreed-upon tenant improvements, the parties
attempted, unsuccessfully, to come up with an alternate solution.
11
36. Plaintiffs failure to honorits agreement to provide tenant to improvements in
connection with Excel's move to the second floor resulted in Excel's inability to move
out of the Premises.
37. Therefore, any damages that Plaintiff has incurred from Excel's continued occupancy
of the Premises resulted from Plaintiffs breaching of its agreement to provide tenant
improvements in the second floor space.
38. Likewise, Plaintiff, through its Complaint, alleges damages by virtue of promising the
Premises to Deloitte by a date certain.
39. Upon information and belief, at the time Plaintiff promised such space to Deloitte,
Plaintiff knew that such space was being occupied by Excel and that it would take at
least several months for Excel to locate alternative space and move its corporate
headquarters.
40. Plaintiff s claims are barred by Plaintiff s prior breach of the oral lease agreement,
including, but not limited to, demanding payment of funds that are not due under the
oral lease, and seeking remedies, equitable and monetary, from Excel in excess of
what Plaintiff is entitled to recover.
41. Some or all of the damages sought by Plaintiff constitute unenforceable penalties
under Pennsylvania law.
42. Plaintiffs claims may be barred, in whole or part, by the doctrines of subsequent
modification and/or waiver as set forth below.
43. As set forth in Excel's answer to paragraph 11 above, the parties entered into an oral
lease which replaced the Lease Agreement. To the extent such oral lease is not
12
deemed to have been a whole and complete replacement of the Lease Agreement,
such oral lease constitutes a modification and/or waiver of the terms of the Lease
Agreement.
44. Plaintiffs claims may be barred, in whole or in part, by estoppel because Plaintiff
should be estopped from pursuing its claims against Excel due to the representations
made under the oral lease.
45. Plaintiffs claim may be barred, in whole or in part, by laches, because Plaintiff
delayed unreasonably in bringing this action in that if, as the Plaintiff alleges, the
Lease Agreement governs the parties' relationship, such Agreement expired on
March 31, 2011 and this action was not brought until January, 2012.
46. Plaintiff's claims are barred by accord and satisfaction. Specifically, in the event the
oral lease is not deemed to have been a whole and complete replacement of the Lease
Agreement, such oral lease constituted an accord by Plaintiff to accept the normal
monthly rental payments for the Premises, which accord was satisfied by Excel's
continued payment of the monthly lease amount.
47. Plaintiff's claims are barred by payment. Specifically, any and all lease payments due
and owing to Plaintiff under the oral lease have been paid.
48. Plaintiff s damages, if any, were caused, in whole or in part, by Plaintiff's own
actions as more specifically set forth in the paragraphs.
WHEREFORE Defendant Excel Homes Group, LLC respectfully requests that Plaintiff
take nothing by way of its Complaint, that judgment be entered in its favor and against Plaintiff,
13
and that Excel Homes Group, LLC be awarded costs of this action and all other relief that the
Court deems just and proper.
Respectfully submitted,
McNees Wallace & Nurick, LLC
i
Kim erly . Colonna, PA #80362
100 Pine Street, P.O. Box 1166
Harrisburg, PA 17108-1166
Tel. 717-232-8000
Fax. 717-237-5300
kcolonna cr,mwn.com
W. Todd Woelfer
Trevor Q. Gasper
May Oberfell Lorber
4100 Edison Lakes Parkway, Suite 100,
Mishawaka, Indiana 46545
Telephone: (574) 243-4100
Attorneys for Defendant,
Excel Homes Group, LLC
Dated: March a3, 2012
14
VERIFICATION
Subject to the penalties of 18 Pa. C.S. § 4904, 1, Brent Werner, certify that I am
authorized to make this verification on behalf of Excel. Homes Group, LLC and that the facts set
forth in the foregoing Amended Answer and New Matter are true and correct to the best of my
knowledge, or information and belief.
Excel Homes Group, LLC
By: \GjG ???----
Brent Werner, CFO
Date: /Ya"e-A 2J Za)L
15
CERTIFICATE OF SERVICE
I, Kimberly M. Colonna do hereby certify that a true and correct copy of the foregoing
Amended Answer to Complaint and New Matter was served upon the following person by
prepaid postage on March g; , 2012.
Ronald L. Finck, Esq.
METTE, EVANS & WOODSIDE
P.O. Box 59,50
Harrisburg, PA 17110-0950
Y.
BY:
Kimber . Colonna
16
s
i t IOsr4J
12 AF9
" NBERLAND COUNTY
PENNSYLVANIA
CAMP HILL REALTY ASSOCIATES, IN THE COURT OF COMMON PLEAS
LP CUMBERLAND COUNTY, PENNSYLVANIA
Plaintiff
V.
NO. 12-152 Civil Term
EXCEL HOMES GROUP, LLC
Defendant
CONSENT TO FILING OF
AMENDED COMPLAINT
The undersigned, counsel for Defendant, Excel Homes Group, LLC, hereby
consents, pursuant to Pa. R.C.P. 1033, to the filing of an Amended Complaint in the form
provided to me on April 9, 2012.
Respectfully submitted,
McNees Wallace & Nurick, LLC
Kimberly M. Colonna, PA #80362
100 Pine Street, P.O. Box 1166
Harrisburg, PA 17108-1166
Tel. 717-232-8000
Fax. 717-237-5300
Attorneys for Defendant,
Excel Homes Group, LLC
Dated: April to , 2012
441507v1
/A
Z - ,,
Ronald L. Finck, Esquire
Pa. Sup. Ct. I.D. No. 89985
METTE, EVANS & WOODSIDE
3401 North Front Street
P.O. Box 5950
Harrisburg, PA 17110-0950
Phone: (717) 232-5000
Fax: (717) 236-1816
rlfinckQmette.com
CAMP HILL REALTY ASSOCIATES,
LP
Plaintiff
V.
EXCEL HOMES GROUP, LLC
Defendant
'.ADO COUNTS'
"-id 6'YLVANIA
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PENNSYLVANIA
: NO. 12-152 Civil Term
: CIVIL ACTION - LAW/EQUITY
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 and Notice
are 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 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. THIS OFFICE CAN PROVIDE YOU WITH INFORMATION
ABOUT HIRING A LAWYER.
IF YOU CANNOT AFFORD TO HIRE A LAWYER, THIS OFFICE MAY BE ABLE
TO PROVIDE YOU WITH INFORMATION ABOUT AGENCIES THAT MAY OFFER
LEGAL SERVICES TO ELIGIBLE PERSONS AT A REDUCED FEE OR NO FEE.
Cumberland County Bar Association
34 S. Bedford St.
Carlisle, PA 17013
Telephone: (717) 249-3166
Ronald L. Finck, Esquire
Pa. Sup. Ct. I.D. No. 89985
METTE, EVANS & WOODSIDE
3401 North Front Street
P.O. Box 5950
Harrisburg, PA 17110-0950
Phone: (717) 232-5000
Fax: (717) 236-1816
rlfinck@mette.com
CAMP HILL REALTY ASSOCIATES, IN THE COURT OF COMMON PLEAS
LP CUMBERLAND COUNTY, PENNSYLVANIA
Plaintiff
V.
NO. 12-152 Civil Term
EXCEL HOMES GROUP, LLC
Defendant CIVIL ACTION - LAW/EQUITY
AMENDED COMPLAINT
The Plaintiff, CAMP HILL REALTY ASSOCIATES, LP ("CHRA"), by and through its
attorneys, METTE, EVANS & WOODSIDE, files this Amended Complaint against the
Defendant, EXCEL HOMES GROUP, LP ("Excel"), and in support thereof avers as follows:
PARTIES
1. CHRA is a Delaware Limited Partnership authorized to transact business in
Pennsylvania as a foreign business corporation.
2. Excel is a Delaware Limited Liability Company authorized to transact business in
Pennsylvania as a foreign business corporation.
3. Excel maintains a principal place of business at 300 Corporate Center Drive, Suite
602, Camp Hill, Pennsylvania, 17011
JURISDICTION AND VENUE
4. Jurisdiction and venue are appropriate in this Court as this matter involves real
property located in Cumberland County, Pennsylvania.
5. Jurisdiction and venue are appropriate in this Court as the events and transactions
out of which CHRA's causes of action arose occurred in Cumberland County, Pennsylvania.
6. Jurisdiction and venue are appropriate in this Court as the Defendant is located in
and conducts business in Cumberland County, Pennsylvania.
BACKGROUND
7. CHRA is the owner of real property located at 300 Corporate Center Drive, Camp
Hill, Pennsylvania (the "Property").
8. CHRA maintains a multi-unit commercial office building (the "Building") on the
Property.
9. Pursuant to a Lease Agreement dated as of May 1, 2010 (the "Lease Agreement"),
CHRA leased Suite 602 of the Building (the "Premises") to Excel. A true and correct copy of
the Lease Agreement is attached hereto as Exhibit `A' and made a part hereof by reference.
10. Pursuant to paragraph 1.02 of the Lease Agreement, the lease term expired on
March 31, 2011 (the "Expiration Date").
11. Pursuant to paragraphs 12.04 and 22.01 of the Lease Agreement, Excel was
obligated to remove from the Property and surrender the Premises on or before the Expiration
Date.
12. Excel did not remove from the Premises as of the Expiration Date.
2
13. By letter dated July 11, 2011, the undersigned counsel for CHRA notified Excel
that Excel had to vacate the Premises no later than September 1, 2011. A true and correct copy
of the July 11, 2011 letter is attached hereto as Exhibit `B' and made a part hereof by reference.
14. Excel did not vacate the Premises by September 1, 2011.
15. By Notice to Quit dated December 8, 2011, CHRA demanded that Excel vacate
the Premises and make outstanding payments due to CHRA. A true and correct copy of the
December 8, 2011 notice is attached hereto as Exhibit `C' and made a part hereof by reference.
16. On January 13, 2012, CHRA initiated the above-captioned action against Excel.
17. On January 13, 2012, CHRA also confessed judgment for possession of the
Premises at Cumberland County Docket No. 12-153 - Civil Term.
18. On or about February 17, 2012, Excel filed a Petition to Strike Off Confessed
Judgment, or, Alternatively, to Open Confessed Judgment at Docket No. 12-153 - Civil Term.
19. In its Petition to Strike Off Confessed Judgment, or, Alternatively, to Open
Confessed Judgment, Excel alleges that Excel and CHRA entered into an oral agreement either
modifying or superseding the written Lease Agreement such that Excel had the right to remain in
the Premises on a month-to-month basis.
20. In Excel's Amended Answer dated March 23, 2012 to CHRA's Complaint in the
above-captioned action, Excel contends that the Lease Agreement expired on the Expiration Date
and the parties continued to operate under a new, oral, month-to-month lease agreement from
April 1, 2011 forward. (See Excel's Answer at paragraph 11)
21. CHRA disputes Excel's characterizations regarding the alleged oral lease
agreement.
3
22. Nevertheless, even if the Court were to find an oral, month-to-month agreement,
as alleged by Excel, it is clear that Excel's right to continued occupancy of the Premises ended as
early as September 1, 2011 and no later than January 8, 2011.
23. By lease agreement dated October 26, 2011, CHRA became obligated to deliver
possession of the Premises to non-party, Deloitte, LLP on or before December 1, 2011. A true
and correct copy of the October 26, 2011 lease agreement is attached hereto as Exhibit `D' and
made a part hereof by reference.
COUNTI
BREACH OF CONTRACT - EVICTION
24. The averments of all paragraphs set forth above are incorporated herein by
reference and made a part hereof as if fully set forth.
25. The Lease Agreement is a binding contract between CHRA and Excel that is
supported by adequate consideration.
26. By failing to vacate the Premises on or before March 31, 2011, Plaintiff is in
violation of the Lease Agreement.
27. In the alternative, if, as Excel suggests in its Petition to Strike Off Confessed
Judgment, or, Alternatively, to Open Confessed Judgment and in paragraph 11 of its Answer to
CHRA's original Complaint, CHRA and Excel entered into an oral month-to-month agreement,
Excel's right to continued occupancy expired on January 8, 2012, at the very latest.
28. As of the date of the filing of this Amended Complaint, Excel continues to occupy
the Premises.
4
WHEREFORE, Plaintiff, CHRA, respectfully requests that this Court enter judgment in
ejectment against the Defendant, Excel, granting CHRA immediate possession of the Property,
together with such other relief as this Court deems just and appropriate under the circumstances.
COUNT II
BREACH OF CONTRACT
29. The averments of all paragraphs set forth above are incorporated herein by
reference and made a part hereof as if fully set forth.
30. Excel's failure to vacate the Premises constitutes a breach of its obligations under
the Lease Agreement.
31. Alternatively, Excel's failure to vacate the Premises constitutes a breach of its
obligations under the Lease Agreement, as orally modified.
32. Excel's breach of the Lease Agreement entitles CHRA to damages.
33. Paragraph 1.03 of the Lease Agreement provides, in relevant part, as follows:
Notwithstanding any other provision hereof, if [Excel] shall fail to vacate the
Premises and comply with its obligations hereunder, including, but not limited to
its obligations pursuant to Article 12 hereof on or before the Expiration Date (the
date the Tenant vacates the Premises and complies with its obligations hereunder
is sometimes referred to herein as the "Tenant Vacation Date"), the Fixed Rent
due to the Landlord from the Expiration Date until the Tenant Vacation Date shall
be in an amount equal to the (i) Three (ii) multiplied by (a) the Assumed Annual
Fixed Rent...., (b) divided by 365 and (c) the resulting quotient multiplied by the
number of days from the Expiration Date until the Tenant Vacation Date. For
purposes of the preceding sentence the "Assumed Annual Fixed Rent" shall be
deemed to be Ninety-Four Thousand Nine Hundred Fifty-Nine and 96/100's
Dollars ($94,959.96).
34. Pursuant to the above-quoted provision, Excel is obligated to pay CHRA $780.49
per day for each day it remains in the Premises after March 31, 2011.
35. Paragraph 22.02 of the Lease Agreement provides, in relevant part, as follows:
5
22.02. [Excel] hereby agrees to indemnify and save [CHRA] harmless against all
costs, claims, loss and liability resulting from delay by [Excel] in
surrendering the Premises, including, without limitation, any claims made
by any succeeding tenant founded upon such delay. The Parties recognize
and agree that the rental value of the Premises after the expiration of the
Term and the potential loss to [CHRA] resulting from any failure by
[Excel] timely to surrender the Premises will be substantial, will exceed
the amount of monthly rent theretofore payable hereunder, and is currently
impossible of accurate measurement. [Excel] therefore agrees that if
possession of the Premises is not surrendered to [CHRA] upon the
Expiration Date or sooner termination of the Term, [Excel] will pay
[CHRA] as liquidated damages for such loss (and not for any other
damages Landlord may sustain) for each month and for each portion of
any month during which [Excel] holds over in the Premises after the
expiration or termination of the Term, a sum equal to two (2) times the
average Rent payable per month under this Lease during the last six
months of the Term....
36. During the last six months of the Term, Excel's rental amount was $7,913.33 per
month.
37. Pursuant to §22.02 of the Lease Agreement, CHRA is entitled to payment in the
amount of $15,826.16 per month and for each portion of any month which Excel holds over after
March 31, 2011.
38. Pursuant to §28.02 of the Lease Agreement, CHRA is entitled to out-of-pocket
expenses, including counsel fees, incurred by CHRA on account of Excel's failure to perform its
obligations under the Lease Agreement.
39. Pursuant to §38.01 of the Lease Agreement, CHRA is entitled to a late charge of
three (3) cents for each dollar of such Fixed Rent or Additional Rent which shall not have been
paid to Landlord within such ten (10) days after becoming due and payable.
6
40. Pursuant to §38.02 of the Lease Agreement, for each payment due to CHRA that
is not paid within ten (10) days of the date it becomes due, CHRA is entitled to interest at a rate
of 2% per month for each payment due from the date it becomes due until the date it is paid.
41. Inasmuch as Excel has not vacated the Premises, CHRA's damages are continuing
to accrue.
WHEREFORE, Plaintiffs respectfully request that this Court enter an Order entering
judgment in their favor and against Defendants, in an amount to be determined with more
specificity at the time of hearing, plus two (2%) percent interest from the date the amounts
became due and continuing until the date of judgment, and thereafter at the rate of six (6%)
percent from the date of judgment until paid in full, together with attorneys' fees, costs, and
such other relief as the Court shall deem just and appropriate under the circumstances.
COUNT III
BREACH OF CONTRACT
(In the alternative to Count II)
42. The averments of all paragraphs set forth above are incorporated herein by
reference and made a part hereof as if fully set forth.
43. If the Court finds that Excel's original Lease Agreement expired on the Expiration
Date of March 31, 2011, and a new, oral, month-to-month lease agreement took effect as of April
1, 2011, which determination CHRA denies, then Excel's failure to vacate the Premises on or
before September 1, 2011 constitutes a breach of the alleged, oral, month-to-month lease
agreement.
7
44. In the alternative to the averments of paragraph 43 above, Excel's failure to
vacate the Premises by January 8, 2012 constitutes a breach of the alleged oral, month-to-month
lease agreement.
45. CHRA is entitled to damages actually suffered by CHRA as a result of Excel's
breach of the oral, month-to-month lease agreement.
46. Inasmuch as Excel has not vacated the Premises, CHRA's damages are continuing
to accrue.
WHEREFORE, Plaintiffs respectfully request that this Court enter an Order entering
judgment in their favor and against Defendants, in an amount to be determined at the time of trial
together with interest at the rate of six (6%) percent from the date of judgment until paid in full,
costs, and such other relief as the Court shall deem just and appropriate under the circumstances.
Respectfully submitted,
METTE, EVANS & WOODSIDE
By: 9V::!JA 1 ? --C
Ronald L. Finck, Esquire
Sup. Ct. I.D. No. 89985
3401 North Front Street
P. O. Box 5950
Harrisburg, PA 17110-0950
(717) 232-5000 - Phone
(717) 236-1816 - Fax
Attorneys for Plaintiff
Date: April 24, 2012
8
VERIFICATION
I, Jacob Weinreb, am an authorized agent of Camp Hill Realty Associates, LP and am
authorized to make this verification. I have read the foregoing document and verify that the facts
set forth therein are true and correct to the best of my knowledge, information and belief. To the
extent that the foregoing document and/or its language is that of counsel, I ha
counsel in making this Verification.
I understand that any false statements made
C.S. §4904 relating to unsworn falsification to authori
DATED: Y ?12-[j Z
relied upon
557352v1
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`E
CAMP HILL REALTY ASSOCIATES, LP
AND
EXCEL HOMES GROUP, LLC
LEASE
DATED AS OF
May 1, 2010
RESPECTING SPACE IN THE BUILDING AT
300 Corporate Center Drive, Camp Hill, Pennsylvania
Enw] Unknown dotoment property name.
r
LEASE dated as of May 1, 2010 and executed by the parties hereto on or about
November 17, 2010 (the "Execution Date"), between CAMP HILL REALTY ASSOCIATES,
LP, a limited partnership having an address for the receipt of mail c/o Carrow Real Estate
Services, LLC., Suite 304, 99 Washington Avenue, Albany, New York 12260 ("Landlord" or
"Lessor") and EXCEL HOMES GROUP, LLC, having its principal office and place of business
at 300 Corporate Center Drive, Suite 602, Camp Hill, Pennsylvania 17011-1770 ("Tenant";
Landlord and Tenant are hereinafter sometimes referred to collectively as the "Parties" and each
individually as a "Party").
WITNESSETH :
ARTICLE 1
Premises, Term. Rent
1.01. Landlord hereby leases to Tenant, and Tenant hereby leases from
Landlord a portion of the building (the "Building") known as 300 Corporate Center Drive, Camp
Hill, Pennsylvania, designated as Suite 602 and depicted on the floor plan attached hereto as
Exhibit A and made a part hereof (the "Premises" or "Demised Premises"), The Landlord
assumes and this Lease has been prepared and the Fixed Rent amounts as set forth herein are
calculated based upon the assumption that the Premises contains 4,947 rentable square feet
("Assumed Premises RSF"). The Landlord may cause to be performed, at its sole cost and
expense, a remeasurement/recalculation of the usable and rentable square footage ("RSF") of the
Premises in accordance with the Standard Method for Measuring Floor Area in Office Buildings,
ANSI/BOIVIA 65.1-1996 by an architect certified/licensed to practice the profession of
architecture in the Commonwealth of Pennsylvania (the "SOMA Remeasurement") and that
architect shall certify to the Landlord and deliver to the Landlord and Tenant the results of that
BOMA Remeasurement (the "BOMA Remeasurement Certification"). The RSF of the Premises
as established by the BOMA Remeasurement Certification. is sometimes referred to herein as the
"BOMA RSF"). Each Party shall cooperate with the other Party and its contractors in the
performance of the BOMA Remeasurement. The rentable square footage of the Premises
established by the BOMA Remeasurement shall, absent manifest error or fraud, be the RSF of the
Premises as of the fast day of the second full calendar month following the delivery of the
BOMA Remeasurement Certification to the Landlord and the Tenant (the "BOMA
Remeasurement Effective Date"), but the results of the BOMA Remeasurement shall not affect
the amount of any payment due or paid by the Tenant to the Landlord for any period prior to the
applicable BOMA Remeasurement Effective Date. If the BOMA Remeasurement Certification
establishes that the RSF in the Premises is greater than or less than the Assumed Premises RSF,
the Annual Fixed Rent for all periods during the Term after the BOMA Remeasurement Effective
Date shall be adjusted to an amount equal to $ 19.19546 multiplied by the RSF in the Premises as
set forth in the BOMA Remeasurement Certification (the "BOMA Annual Fixed Rent") and the
Monthly Fixed Rent Installment shall be adjusted to an amount equal to (i) the BOMA Annual
Fixed Rent (ii) divided by 12 (the "BOMA Monthly Fixed Rent Installment").
1.02. The term of this Lease (the "Term") shall commence on May 1, 2010 (the
"Commencement Date") and shall end on the earlier of (a) 11:59pm March 31, 2011 and (b) such
date upon which the Term may be cancelled or terminated by the Landlord pursuant to any of the
r• I
conditions or covenants of this Lease or pursuant to law and the Landlord takes the action
contemplated hereby to effectuate such early termination, if any, or provides written notice of
such termination to the Tenant (the "Expiration Date"). Promptly following the Commencement
Date, the Parties shall enter into a supplementary agreement memorializing the Commencement
Date but the failure of Landlord to request that Tenant execute such agreement or the failure of
Landlord or Tenant to execute same shall not alter the Commencement Date.
1.03. The rents reserved under this Lease, for the Term thereof, shall be
and consist of (i) fixed rent ("Fixed Rent") (a) based on the Assumed Premises RSF until the
BOMA Remeasurement shall establish that the RSF of the Premises is greater than or less than
the Assumed Premises RSF in an amount of Seven Thousand Nine Hundred Thirteen and
33/100s Dollars ($7,913.33) per month (the "Assumed Monthly Fixed Rent") for a total Fixed
Rent during the Tenn in the amount of Eighty-Seven Thousand Forty-Six and 63/100's Dollars
($87,046.63) which shall be payable in installments as follows: (i) $55,393.31 on November 19,
2010 (the "Rent Commencement Date"), constituting payment of rent at the Assumed Monthly
Fixed Rent for the months of May, June, July, August, September, October and November of
2010, and (ii) the Assumed Monthly Fixed Rent which shall be payable in advance on the first
day of each and every calendar month commencing on December 1, 2010 and (b) if the BOMA
Remeasurement Certification, if any, shall establish that the RSF of the Premises is less than or
greater than the Assumed Premises RSF, then Tenant shall pay in advance on the first day of each
and every calendar month commencing on the BOMA Remeasurement Effective Date an amount
equal to the BOMA Monthly Fixed Rent Installment and (ii) additional rent ("Additional Rent"
and together with the Fixed Rent collectively the "Rent")) consisting of all other sums of money
as shall become due from Tenant hereunder (for default in the payment of which Landlord shall
have the same remedies as for a default in the payment of Fixed Rent), all to be paid to Landlord
at its office, or at such other place, or to such agent and at such place, as Landlord may designate
by notice to Tenant, in lawful money of the United States of America. Tenant hereby agrees to
pay all Fixed Rent and Additional Rent (collectively, "Rent") in cash or by check (subject to
collection). Notwithstanding any other provision hereof, if the Tenant shall fail to vacate the
Premises and comply with its obligations hereunder, including, but not limited to its obligations
pursuant to Article 12 hereof on or before the Expiration Date (the date the Tenant vacates the
Premises and complies with its obligations hereunder is sometimes referred to herein as the
"Tenant Vacation Date"), the Fixed Rent due to the Landlord from the Expiration Date until the
Tenant Vacation Date shall be in an amount equal to the (i) Three (ii) multiplied by (a) the
Assumed Annual Fixed Rent or the BOMA Annual Fixed Rent, as applicable, (b) divided by 365
and (c) the resulting quotient multiplied by the number of days from the Expiration Date until the
Tenant Vacation Date. For purposes of the preceding sentence the "Assumed Annual Fixed Rent"
shall be deemed to be Ninety-Four Thousand Nine Hundred Fifty-Nine and 961100's Dollars
($94,959.96).
1.04. Tenant shall pay all Fixed Rent and Additional Rent as and when the same
shall become due and payable, without demand therefor and without any abatement, deduction or
set-off whatsoever.
2
ARTICLE 2
Use
2.01 The Premises shall be used solely and exclusively for administrative
offices in the conduct of Tenant's business and for no other purpose whatsoever (the "Use").
2.02 Tenant shall not use or permit the use of the Premises or any part thereof
in any way which would violate any of the covenants, agreements, terms, provisions and
conditions of this Lease, for any unlawful purpose or in any unlawful manner or in violation of
the Certificate of Occupancy for the Premises or the Building, and Tenant shall not suffer or
permit the Premises or any part thereof to be used in any manner or anything to be done therein
or anything to be brought into or kept therein which, in the reasonable judgment of Landlord,
shall in any way impair or tend to impair, in any significant respect, the character, reputation or
appearance of the Building as a high quality office building, impair or interfere with or tend to
impair or interfere in any significant respect, with any of the Building services or the proper and
economic heating, cleaning, air conditioning or other servicing of the Building or the Premises,
or impair or interfere with or tend to impair or interfere in any significant respect with the use of
any of the other areas of the Building by, or occasion discomfort, inconvenience or annoyance to,
any of the other tenants or occupants of the Building. Tenant shall not install any electrical or
other equipment of any kind which, in the reasonable judgment of Landlord, might cause any
such impairment, interference, discomfort, inconvenience or annoyance.
2.03 If any governmental license or permit shall be required for the proper and
lawful conduct of Tenant's business or other activity carried on in the Premises, Tenant, at
Tenant's expense, shall duly procure and thereafter maintain such license or permit and submit
the same for inspection by Landlord. Landlord represents that Tenant's use of the Premises for
the specific use permitted under this Article 2 shall not violate the certificate of occupancy
covering the Building and the Premises.
ARTICLE 3
Condition of the Premises
3.01. Tenant has examined and inspected the Premises and the Building and
agrees to accept possession of the Premises in the condition and state of repair which exists on the
date hereof "as is.
ARTICLE 4
Rents Collectability
If all or any part of the Fixed Rent or Additional Rent shall at any time become uncollectible,
reduced or required to be refunded by virtue of any rules, regulations, orders, laws or ordinances,
then- for the period prescribed thereby Tenant shall pay to Landlord the maximum amounts
permitted pursuant thereto. Upon the expiration of the applicable period of time during which
such amounts shall be uncollectible, reduced or refunded, Tenant shall pay to Landlord as
3
Additional Rent, within ten (10) days after demand, all such uncollected, reduced or refunded
amounts that would have been payable for the period absent such rules, regulations, orders, laws
or ordinances; provided, however, that the retroactive collection thereof shall then be lawful.
ARTICLE 5
Subordination, Notice to
Lessors and Mortgagees
5.01 This Lease, and all rights of Tenant hereunder, are and shall be subject and
subordinate in all respects to all ground leases, overriding leases and underlying leases of the
Land and/or the Building now or hereafter existing (collectively, "Superior Leases") and to all
mortgages which may now or hereafter affect the Land and/or the Building (collectively,
"Mortgages") and/or any of such Superior Leases, whether or not such Mortgages shall also
cover other lands and/or buildings, to each and every advance made or hereafter to be made
under such Mortgages, and to all renewals, supplements, amendments, modifications,
replacements and extensions of such Superior Leases and Mortgages (including substitutions
therefor) and spreaders and consolidations of such Mortgages; provided however that Tenant
shall not be required to effectuate any subordination or other document hypothecating any
interest in the Land, Building or Premises unless the mortgagee or beneficiary named in such
mortgage or deed of trust shall fist enter into a Subordination, Non-Disturbance and Attornment
Agreement in such form and content as is customarily and ordinarily provided by such
Mortgagee to tenants of properties similar to the Building/Land in which the Mortgagee has an
interest and is reasonably acceptable to Tenant, and if there is or will be, as of the
Commencement Date of this Lease, any lease, mortgage or deed of trust in effect with respect to
the Land, Building or Premises, or any portion or portions thereof, which would thereby be
superior to this Lease, Landlord shall obtain and deliver to Tenant, prior to the Commencement
Date of this Lease, a Subordination, Non-Disturbance and Adornment Agreement in such form
and content as is customarily and ordinarily provided by such Mortgagee to tenants of properties
similar to the Building/Land in which the Mortgagee has an interest and is reasonably acceptable
to Tenant, duly executed on behalf of each such lessor, mortgagee and beneficiary and Tenant
shall execute and deliver the same within ten (10) days after Tenant's receipt thereof,
5.02. In the event any act or omission of Landlord would give Tenant the right,
immediately or after lapse of a period of time, to cancel or terminate this Lease, or to claim a
partial or total eviction, Tenant shall not exercise such right: (i) until it has given written notice of
such act or omission to the holder of each Mortgage and the lessor of each Superior Lease whose
name and address shall previously have been furnished to Tenant; and (ii) unless such act or
omission shall be one which is not capable of being remedied by Landlord or such holder or
lessor within a reasonable period of time, until a reasonable period for remedying such act or
omission shall have elapsed following the giving of such notice and following the time when such
holder or lessor shall have become entitled under such Mortgage or Superior Lease, as the case
may be, to remedy the same (which reasonable period shall in no event be less than the period to
which Landlord would be entitled under this Lease or otherwise, after similar notice, to effect
such remedy).
4
5.03. If the lessor of a Superior Lease or the holder of a Mortgage shall succeed
to the rights of Landlord under this Lease, whether through possession or foreclosure action or
delivery of a new lease or deed or otherwise, then at the request of such party so succeeding to
Landlord's rights (herein sometimes called "successor landlord") and upon such successor
landlord's written agreement to accept Tenant's attornment, Tenant shall attorn to and recognize
such successor landlord as Tenant's landlord under this Lease, and shall execute and deliver
within ten (10) days after Tenant's receipt of a written request therefor any instrument that such
successor landlord may reasonably request to evidence such attornment, Upon such attornment
this Lease shall continue in full force and effect as, or as if it were, a direct lease between the
successor landlord and Tenant upon all of the terns, covenants, conditions, agreements and
provisions set forth in this Lease except that the successor landlord shall not: (i) be liable for any
previous act or omission of Landlord under this Lease, (ii) be subject to any offset, not expressly
provided for in this Lease, which shall have theretofore accrued to Tenant against Landlord; (iii)
be responsible for any security not actually received and collected by the successor landlord; or
(iv) be bound by any previous modification of this Lease, not expressly provided for in this Lease,
or by any previous prepayment of more than one month's Fixed Rent, unless such modification or
prepayment shall have been expressly approved in writing by the lessor of the Superior Lease or
the holder of the Mortgage through or by reason of which the successor landlord shall have
succeeded to the rights of Landlord under this Lease.
ARTICLE 6
Quiet Enjo?nent
6.01. As long as Tenant pays all of the Fixed Rent and Additional Rent due
hereunder and performs all of Tenant's other obligations hereunder, Tenant shall peaceably and
quietly have, hold and enjoy the Premises subject, nevertheless, to the terms and conditions of this
Lease and, as provided in Article 5, to Superior Leases and Mortgages.
ARTICLE 7
Brokerage
7.01. Tenant represents and warrants that Tenant has had no dealings or
communications with any broker or agent in connection with the consummation of this Lease
other than Carrow Real Estate Services PA, LLC ("Broker") and the execution of this Lease by
Landlord shall be conclusive evidence that Landlord has relied on the foregoing representation
and warranty. Tenant shall pay, hold harmless and indemnify Landlord from and against any and
all loss, cost, damage, expense (including, without limitation, reasonable attorneys' fees) or
liability for any compensation, commissions or charges claimed by any broker or agent except
Broker with respect to this Lease or the negotiation hereof, unless such broker or agent claims to
have dealt with Landlord and not Tenant.
ARTICLE 8
Compliance with Laws
8.01. Tenant, at Tenant's expense, shall comply with all laws and ordinances,
and all rules, orders and regulations of all governmental authorities and of all insurance bodies, at
any time duly issued or in force, applicable to the Premises, any improvements or installations
therein and Tenant's use or manner of use of the Premises (collectively, "Applicable Laws"),
provided that the same apply to Tenant's particular manner of use, and not the general use which
is permitted under Section 2, it being agreed that Landlord shall be responsible for compliance
with Applicable Laws which relate generally to the permitted use.
ARTICLE 9
Insurance
9.01. Tenant shall not violate, or permit the violation of, any condition unposed
by the standard fire insurance policy then issued for office buildings in the Borough of Camp Hill
and County of Cumberland, Pennsylvania, and shall not do, or permit anything to be done, or
keep or permit anything to be kept in the Premises, which would subject Landlord to any liability
or responsibility for personal injury or death or property damage, or which would increase the fire
or other casualty insurance rate on the Building or the property therein over the rate which would
otherwise then be in effect (unless Tenant pays the resulting premium) or which would result in
insurance companies of good standing refusing to insure the Building or any of such property in
an amount and at rates reasonably satisfactory to Landlord.
9.02. Landlord and Tenant shall secure an appropriate clause in, or an
endorsement upon, each insurance policy obtained by it and covering the Building and the
Premises, respectively, and their respective personal property, fixtures and equipment located
therein, pursuant to which the insurers waive subrogation or permit the insured, prior to any loss,
to agree with a thud party to waive any claim it might have against said thud party.
9.03. If, by reason of any failure of Tenant to comply with the provisions of
Sections 9.01 or 9.02 hereof, the rate of fire insurance with extended coverage on the Building or
equipment or other property of Landlord shall be higher than it otherwise would be, Tenant shall
reimburse Landlord, within ten (10) days after demand, for that part of the premiums for fire
insurance and extended coverage paid by Landlord because of such failure on the part of Tenant.
If any dispute shall arise between Landlord and Tenant with respect to the incurrence or amount
of any additional insurance premium referred to herein, the dispute shall be determined by
arbitration conducted in accordance with the terms hereof.
9.04. Tenant covenants and agrees to provide on or before the Commencement
Date and to keep in force throughout the Term for the benefit of and naming therein Landlord and
any managing agent of the Building as additional insureds as well as for the benefit of Tenant a
commercial general liability insurance policy protecting Landlord and Tenant against any liability
whatsoever, occasioned by any occurrence in, on or about the Premises or the appurtenances
thereto. Such policy is to be written by good and solvent insurance companies licensed to do
6
business in the Commonwealth of Pennsylvania that are reasonably satisfactory to Landlord, and
shall be in such limits as Landlord may reasonably require but not less than $2,000,000 combined
single limit coverage. Such insurance may be carried under a blanket policy covering the
Premises and other locations of Tenant, provided the blanket policy contains an endorsement that
names Landlord, Landlord's managing agent and/or designees specified by Landlord from time to
time as additional insureds, references the Premises and guarantees a minimum limit available to
the Premises equal to the amount of insurance required to be maintained hereunder. Prior to the
time such insurance is first required to be carried by Tenant and thereafter, at least thirty (30) days
prior to the expiration date of any such policy, Tenant agrees to deliver to Landlord either a
duplicate original of the aforesaid policy or a certificate evidencing such insurance. Said
certificate shall contain an endorsement, to the extent generally available, that such insurance may
not be canceled or modified except upon thirty (30) days' prior written notice to Landlord. In the
event Tenant fails to continuously maintain the insurance specified in this Section, Landlord may,
at its option and without relieving Tenant of any obligation hereunder, procure such insurance and
pay for the same at the expense of Tenant. In such event, Tenant shall repay the amount
expended by Landlord, with interest thereon at the rate specified in Section 38.02 hereof, as
Additional Rent, immediately upon Landlord's written demand therefor.
ARTICLE 10
Rules and Regulations
10.01. Tenant, its employees and agents shall faithfully observe and comply with
the Rules and Regulations attached hereto as Exhibit C and made a part hereof, and such
reasonable changes therein as Landlord at any time or times hereafter may make and
communicate to Tenant, provided, however, that in case of any conflict or inconsistency between
the provisions of this Lease and any of the Rules and Regulations as originally promulgated or as
changed or supplemented, the provisions of this Lease shall control.
10.02. Nothing contained in this Lease shall be construed to impose upon
Landlord any duty or obligation to Tenant to enforce the Rules and Regulations or the terms,
covenants or conditions in any other lease as against any other tenant, and Landlord shall not be
liable to Tenant for violation of the same by any other tenant or its employees, agents or visitors.
Notwithstanding, to the extent Landlord elects to enforce any Rules and Regulations, the same
shall be enforced in a uniform manner, and not in a discriminatory manner against Tenant.
ARTICLE 11
Tenant's Changes
11.01. Tenant may from time to time, at its expense make such alterations,
additions, installations, repairs, substitutions and improvements (hereinafter, collectively
"Tenant's Changes' in and to the Premises as Tenant desires provided and upon the condition
that: (i) Tenant first obtain Landlord's written consent thereto; (ii) neither the outside appearance
of the Building nor any of its structural elements or systems (including, without limitation, the
Building's HVAC, mechanical, electrical and sanitary systems) shall be affected; (iii) the proper
functioning of any of the HVAC, mechanical, electrical, sanitary and other systems of the
7
Building shall not be affected, the usage of such systems by Tenant shall not be increased and
none of such systems shall be affected in any manner whatsoever outside of the Premises; (iv)
ingress or egress to the Premises shall not be affected; (v) Tenant shall be bound by and observe
all of the conditions and covenants contained in this Lease; (vi) Tenant's Changes shall be
completed by Landlord or contractors and/or subcontractors designated by Landlord; and (vii)
Tenant's Changes shall comply with all Applicable Laws and not be incompatible with the
certificate of occupancy for the Building and/or the Premises.
11.02. Tenant's Changes shall be done at Tenant's expense at such times and in
such manmer as Landlord may from time to time designate. Prior to the commencement of any
Tenant's Changes, Tenant shall submit to Landlord, for Landlord's written approval, a complete
set of plans and specifications (to be prepared by and at the expense of Tenant by an architect
and/or engineer satisfactory to Landlord) depicting the proposed Tenant's Changes in detail. In
no event shall any material or equipment be incorporated in or to the Premises in connection with
any Tenant's Changes which is subject to any lien, security agreement, charge, mortgage or
encumbrance of any kind whatsoever or which is subject to any conditional sale or other title
retention agreement. Any mechanic's lien filed against the Premises, the Building or the Land for
work done or claimed to have been done for, or materials furnished or claimed to have been
fuunished to, Tenant shall be discharged by Tenant within thirty (30) days thereafter, by filing the
bond required by law or otherwise. Tenant's Changes shall at all times comply strictly with: (i)
all Applicable Laws; (ii) the Rules and Regulations; and (iii) all plans and specifications approved
by Landlord. No Tenant's Changes shall be begun until Landlord has approved such plans and
specifications, and no amendments or additions to such plans and specifications shall be made
without the prior written approval of Landlord. Tenant agrees that it will not at any time prior to
or during the Term, either directly or indirectly, use any contractors, labor or materials if the use
of such contractors, labor or materials would interfere or create any difficulty with other
contractors, or labor engaged by Tenant or Landlord or others engaged in the construction,
maintenance or operation of the Building or any part thereof by Landlord, Tenant or others. In
the event of any such interference or difficulty, Tenant, upon demand of Landlord, shall cause all
contractors or labor causing such interference or difficulty to leave the Building immediately. In
the event that any Tenant's Changes are not performed by Landlord, Tenant agrees to pay
Landlord, within ten (10) days after substantial completion of such Tenant's Changes, a fee equal
to ten (10%) percent of the total cost of performing and completing such Tenant's Changes on
account of Landlord's services in coordinating and administering the performance and completion
of such changes. Notwithstanding anything herein contained to the contrary, any connections
proposed to be made by Tenant to the Building's base electrical system or wiring shall be
performed solely at Tenant's cost and expense by the electrical contractor designated by
Landlord, subject to and upon the terms and conditions set forth in this Lease, including without
limitation, the provisions of Section 11.01 of this Article and Article 14 hereof.
11.03. Nothing contained in this Lease shall be construed to give Tenant any
right, power or authority to contract for or permit the rendering of any work or the furnishing of
any material which might give rise to the filing of any mechanic's or other lien against the
Premises, the Building, the Land or the interest of Landlord in any of the foregoing.
8
ARTICLE 12
Tenant's Property
12.01. All Tenant's Changes in or to the Premises and all fixtures, equipment,
improvements, installations and appurtenances attached to or built into the Premises at the
commencement of or during the Term, whether by Landlord at its own expense or at the expense
of Tenant, shall be and remain a part of the Premises, shall be deemed the property of Landlord
and shall not be removed by Tenant, except as hereinafter in this Article expressly provided.
12.02. All paneling, movable partitions, special cabinet work, other business and
trade fixtures, machinery and equipment, communications equipment and office equipment,
whether or not attached to or built into the Premises, which are installed in the Premises by or for
the account of Tenant, without expense to Landlord, and can be removed without damage to the
Building, and all furniture, furnishings and other articles of movable personal property owned by
Tenant and located in the Premises (all of which are herein sometimes referred to as "Tenant's
Property"), shall be and shall remain the property of Tenant and may be removed by it at any time
during the Term; provided that if any of Tenant's Property is removed, Tenant shall promptly
repair or pay the cost of repairing any damage to the Premises or to the Building resulting from
such removal. Any improvement for which Landlord shall have granted any allowance or credit
to Tenant shall not be deemed to have been installed by or for the account of Tenant, without
expense to Landlord, and shall not be considered Tenant's Property.
12.03. Tenant and its contractors shall prominently label all wiring, cabling,
conduits and related equipment installed in the Demised Premises, the demised premises of other
tenants and/or the common areas, shafts or risers of the Building by or for the account of Tenant
with Tenant's and Tenant's contractor's names, contact information and the date of installation.
Any telephone, data, security and/or other wiring and cabling (other than electrical acid fire alarm
wiring), which is replaced or no longer used shall be removed by Tenant at the time of said
replacement or obsolescence. All telephone, data, security and other wiring and cabling (other
than electrical and fire alarm wiring) installed in the Demised Premises, the demised premises of
other tenants or the common areas, the shafts and/or risers of the Building by or for the account of
Tenant shall be removed by Tenant at Tenant's sole cost and expense on or before the Expiration
Date or the date of any earlier termination of this Lease unless Landlord notifies Tenant in writing
that it may leave all or any portion of such telephone, data, security and other wiring and cabling
in place.
12.04. At or before the Expiration Date, or the date of any earlier termination of
this Lease, Tenant at its expense, shall remove from the Premises all of Tenant's Property except
such items thereof as Tenant shall have expressly agreed in writing with Landlord were to remain
and to become the property of Landlord, and shall repair and restore in a good and workerlike
manner any damage to the Premises or the Building resulting from such removal. Any items of
Tenant's Property (except money, securities and other like valuables) which shall remain in the
Premises after the Expiration Date, may, at the option of Landlord, be deemed to have been
abandoned, and in such case either may be retained by Landlord as its sole property or may be
disposed of at Tenant's expense, without accountability, in such manner as Landlord sees fit.
Notwithstanding the foregoing provisions of this Section to the contrary, in the event Landlord
9
notifies Tenant (i) on or before that date which is thirty (30) days prior to the Expiration Date, or
(ii) promptly upon the occurrence of any earlier termination of the Tenn, that Landlord will
permit any items of Tenant's Property to remain in the Premises, Tenant shall be relieved of the
obligation to remove the same, but shall nevertheless have the right to remove the same if it
should so choose. In no event shall Tenant have the right to remove only part of the items of
Tenant's Property referenced in Landlord's notice to Tenant as given pursuant to the prior
sentence without Landlord's prior written approval; to the extent that Tenant removes any such
items of Tenant's Property, Tenant must remove the entirety of such items.
ARTICLE 13
Repairs and Maintenance
13.01. Landlord, at its expense, shall keep 'and maintain the structural portions of
the Building, the Building Systems (as hereinafter defined) and the common areas of the
Building. As used herein, "Building Systems" shall mean: (i) the Building's entire heating
system; (ii) the compressors, chillers and blowers for the Building's air cooling equipment and the
air handlers and the variable air volume systems (exclusive of duct work within the Premises)
serving each floor of the Building; (iii) the electrical service into the Building, the Building's
risers and the main electrical conduits supplying electricity up to the point of connection to the
Premises; . and (iv) the Building's core plumbing and the plumbing in building standard
bathrooms. Tenant shall, throughout the Term and at Tenant's sole cost and expense, take good
care of the Premises and the fixtures therein and appurtenances thereto and shall be responsible
for all repairs and maintenance therein not expressly made the responsibility of Landlord
hereunder. Subject to Landlord's obligation to repair and restore the Building and/or Premises in
accordance with Article 20 below, Tenant, at its expense, shall promptly make all repairs,
ordinary or extraordinary, interior or exterior, structural or otherwise, in and about the Premises
and the Building, as shall be required by reason of: (i) the performance or existence of Tenant's
Changes; (ii) the installation, use or operation of Tenant's Property in the Premises; (iii) the
moving of Tenant's Property or any other property owned or being delivered to or from Tenant in
or out of the Building; or (iv) the carelessness, misuse, neglect or improper conduct of Tenant or
any of its employees, invitees, agents or contractors. Without limiting the foregoing, Tenant, at
its expense, shall replace all scratched, damaged or broken doors, windows and glass in and about
the Premises and shall be responsible for all repairs, maintenance and replacement of wall and
floor coverings, fixtures and decorations in the Premises, and for the repair and maintenance of all
lighting fixtures, ductwork, pipes, cables, wires and equipment therein. All of the aforesaid
repairs and replacements shall be of quality and class equal to the original work or construction
and shall be made in accordance with the provisions of Article 11 hereof. If Tenant fails after ten
(10) days' notice to proceed with due diligence to commence and prior to the completion thereof
to diligently prosecute the completion of any repairs required to be made by Tenant hereunder, the
same may be made by Landlord, at the expense of Tenant, and the expense thereof incurred by
Landlord (together with interest thereon at the rate specified in Section 38.02 hereof) shall be
collectible as Additional Rent after the rendition of a bill or statement therefor.
13.02. There shall be no allowance to Tenant for a diminution of rental value and
Landlord shall have no liability to Tenant by reason of any inconvenience, annoyance,
interruption or injury to business arising from Landlord's making, or failing to make, any repairs
10
0
or changes which Landlord is required or permitted by this Lease, or required by law, to make in
or to any portion of the Building or the Premises, or in or to the fixtures, equipment or
appurtenances of the Building or the Premises.
ARTICLE 14
Electrici
14.01. (i) Except as set forth below, for so long as the same shall be available,
Landlord shall provide through the presently installed electrical facilities not more than five (5)
watts per usable square foot of electricity connected load inclusive of lighting to the Premises
between 8 a.m. and 6 p.m. ("Business Hours") Monday to Friday except holidays observed by
the federal, state or local governments or any union whose members supply services to or operate
the Building ("Business Days").
(ii) Landlord shall not be liable in any way to Tenant for any failure or defect
in supply or character of electric current fin-nished to the Premises. Tenant shall use said electric
current for lighting and, insofar as Landlord's facilities are not burdened thereby and Applicable
Laws and insurance regulations permit, for operation, during Business Hours on Business Days,
of such equipment as is normally used in connection with the Use. Tenant's use of electric
current in the Premises shall not at any tune exceed the capacity of any of the electrical
conductors and equipment in or otherwise serving the Premises. Tenant shall not make or
perform or permit the making or performing of, any alterations to wiring installations or other
electrical facilities in or serving the Premises or any additions to the business machines, office
equipment or other appliances in the Premises which utilize electrical energy in excess of the
capacity of the service to the Demises Premises. Provided Tenant is able to arrange to receive
electricity for the Premises directly from the public utility company or other company designated
by Landlord to provide electricity to the Building on the terms and conditions set forth in the
next sentence of this Section, Landlord may discontinue any of the aforesaid services to the
Premises, upon thirty (30) days' written notice to Tenant for any reason without being liable to
Tenant therefor or without in any way affecting this Lease or the liability of Tenant hereunder or
causing any diminution of Rent, and Tenant hereby waives any rights it may have had to object
to the same or otherwise and the same shall not be deemed to be a lessening or diminution of
services within the meaning of any law, rule or regulation now or hereafter enacted, promulgated
or issued. In the event Landlord gives such notice of discontinuance, Landlord shall permit
Tenant to receive such service direct from the public utility company or such other company
upon the condition that Tenant shall at its sole expense entirely segregate Tenant's electrical
system so that the same is in no way dependent upon or connected to the circuits or distribution
facilities of Landlord or any other tenant. In the event this Lease is terminated because of
Tenant's default, upon vacating the Premises, Tenant will also restore same at its sole expense to
the condition existing prior to such segregation. Tenant shall make no electrical installations,
alterations, additions or changes to electrical equipment or appliances without the prior written
consent of Landlord in each instance. Tenant will comply with the General Rules, Regulations,
Terms and Conditions applicable to Service, Equipment, Wiring and Changes in Requirements in
accordance with the requirements of the public utility or other company supplying electricity to
the Building in the same manner as if Tenant were serviced directly by such utility or company.
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14.02. Landlord shall furnish and install all lighting tubes, lamps, bulbs, and
ballasts used in the Premises and Tenant shall pay Landlord's reasonable charges for all lighting
tubes and bulbs used in the Premises as Additional Rent within ten (10) days after Tenant's
receipt of a bill therefor.
14.03 Tenant shall also pay to Landlord in addition to the Fixed Rent payable
hereunder (i) the value of any use by Tenant of electricity in the Premises and for the operation
of any equipment providing services to the Premises, including heating ventilation and air
conditioning, in excess of five (5) watts per usable square foot in the Premises total connected
load and (ii) the sum of $35.00 for each hour or portion thereof that all or any portion of the
Premises are used by the Tenant and/or any equipment is used, at the request of the Tenant, to
provide services to the Premises, including heating ventilation and air conditioning, other than
during Business Hours on Business Days. Landlord shall have the right from time to time to
survey or cause a third party to survey the consumption of electricity in the Building and/or the
Premises. If such survey shall determine that Tenant's electrical usage is in excess of five (5)
watts per usable square foot in the Premises total connected load or occurs other than during
Business Hours on Business Days, Landlord may invoice the Tenant and the Tenant shall pay the
amount reasonably determined by Landlord to accurately reflect the electrical costs determined
by said survey,
ARTICLE 15
Heat, Ventilation and
Air-Conditioninu
15.01. Landlord shall maintain and operate the heating, ventilating and air
conditioning systems (collectively, the "Systems") and shall furnish heat, ventilation and air
conditioning to the Premises during Business Hours on Business Days. If Tenant shall require the
use of the Systems at any other time ("After Hours"), Landlord shall finrnish, such services upon
reasonable prior notice from Tenant and Tenant shall pay Landlord's then established charge
therefor on demand, as Additional Rent.
15.02. Use of the Premises, or any part thereof, in a manner exceeding the design
conditions thereof (including human occupancy factors, and connected electrical load) or
rearrangement of partitioning which interferes with normal operation of services in the Premises,
or the use of machinery and equipment, including without limitation, computer or data processing
machines, may require changes in the Systems servicing the Premises. Such changes so
occasioned, shall be made by Tenant, at its expense, as Tenant's Changes pursuant to Article 11
hereof and Tenant shall also pay any increase in utility costs attributable to any Tenant's Changes.
Tenant agrees to lower and keep closed any venetian blinds or other window coverings in the
Premises whenever required for the proper operation of air conditioning service and shall
otherwise cooperate with Landlord's reasonable efforts to reduce utility consumption in the
Building and the Premises.
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ARTICLE 16
Landlord's Other Services
16,01. If the Premises are located on a floor of the Building other than the first
floor of the building or otherwise accessible from the real property on which the Building is
located without the use of an escalator, elevator or other mechanical, then Landlord shall provide:
(i) passenger elevator service to the floor on which the Premises are situated during Business
Hours on Business Days, and shall have one passenger elevator subject to call at all other times;
and (ii) freight elevator service on an unreserved basis for incidental use by Tenant between 8
a.m. and noon, and between 1 p.m. and 4:30 p.m. on Business Days only. Any extended use of
freight elevator service may be arranged with Landlord's prior consent, subject to the Rules and
Regulations presently existing or hereinafter enacted by Landlord with respect to such extended
use,
16.02. Landlord shall cause: (i) the Building, including, at least annually, the
exterior of the windows of the Building, to be cleaned. Tenant shall pay to Landlord on demand
the costs incurred by Landlord for: (i) extra cleaning work required because of misuse, neglect or
improper conduct on the part of Tenant, its agents, employees or visitors; and (ii) removal from
the Premises and the Building of so much of any refuse and rubbish of Tenant as shall exceed, in
Landlord's judgment, that ordinarily accumulated daily in the routine of business office
occupancy.
16.03. Landlord shall furnish warm and cold water to the floor on which the
Premises are located, for ordinary drinking, lavatory and cleaning purposes. If Tenant uses water
for any other purpose Landlord, at Tenant's expense, may install meters to measure Tenant's
consumption of water. Tenant shall pay for the quantities of water and/or steam shown on such
meters, at Landlord's customary rates, on rendition of Landlord's bills therefor.
16.04. Landlord reserves the right, without any liability to Tenant, to stop service
of any of the heating, ventilating, air conditioning, electric, sanitary, gas, elevator or other
building systems serving the Premises or the rendition of any of the other services required of
Landlord under this Lease, whenever and for as long as may be necessary, by reason of accidents,
emergencies, strikes or the making of repairs, additions, replacements or changes which .Landlord
is required by this Lease or by law to make or deems necessary or desirable, by reason of
difficulty in seeming proper supplies of fuel, gas, steam, water, electricity, labor or supplies, or by
governmental restrictions or by reason of any other cause beyond Landlord's reasonable control.
The exercise of such right by Landlord shall not constitute an actual or constructive eviction, in
whole or in part, or entitle Tenant to any compensation or to any abatement or diminution of Rent,
or relieve Tenant of any of its obligations under this Lease or impose any liability upon Landlord
or its agents by reason of inconvenience or annoyance to Tenant, or injury to or disruption of
Tenant's business or otherwise.
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ARTICLE 17
Access, Changes in Building
Facilities, Name
17.01. Except for the inside surfaces of all walls, windows and doors bounding
the Premises, all of the Building, including exterior Building walls, core corridor walls and doors
and any core corridor entrance, any terraces or roofs adjacent to the Premises, and any space in or
adjacent to the Premises used for shafts, stacks, pipes, conduits, fan rooms, ducts, electric or other
utilities, sinks or other Building facilities, and the use thereof, as well as access thereto through
the Premises for the purposes of operation, maintenance, decoration and repair, are reserved to
Landlord.
17.02. Landlord reserves the right to make such changes, alterations, additions,
improvements, repairs or replacements in or to the Building (including the Premises) and the
fixtures and equipment thereof, as well as in or to the street entrances, halls, passages, elevators,
escalators, stairways and other parts thereof, and to erect, maintain and use pipes, ducts and
conduits in and through the Premises, all as Landlord may deem necessary or desirable; provided,
however, that there be no unreasonable obstruction of the means of access to the Premises, nor
shall the Premises be reduced in size, nor any amenities on the floor on which the Premises is
located be reduced or limited (e.g. elevators, restrooms). Nothing contained in this Article shall
relieve Tenant of any duty, obligation or liability with respect to making any repair, replacement
or improvement or complying with any Applicable Laws.
17.03. Landlord reserves the right to name the Building and to change the name
or address of the Building at any time and from time to time. Neither this Lease nor any use by
Tenant shall give Tenant any casement or other right in or to the use, if any, of any door or any
passage or any concourse or any plaza connecting the Building with any other building or to any
public conveniences, and the use of such doors, passages, concourses, plazas and conveniences
may without notice to Tenant be regulated or discontinued at any time by Landlord. If at any time
any windows of the Premises are temporarily darkened or obstructed incident to or by reason of
repairs, replacements, maintenance and/or cleaning in, on, to or about the Building or any part or
parts thereof, or are temporarily or permanently closed or rendered inoperable, Landlord shall not
be liable for any damage Tenant may sustain thereby, and Tenant shall not be entitled to any
compensation therefor nor abatement of Rent nor shall the same release Tenant from its
obligations hereunder nor constitute an eviction.
17.04. Except as may otherwise be set forth in this Lease, there shall be no
allowance to Tenant for a diminution of rental value and no liability on the part of Landlord by
reason of inconvenience, annoyance or injury to business arising from Landlord, Tenant or others
making any changes, alterations, additions, improvements, repairs or replacements in or to any
portion of the Building or the Premises, or in or to fixtures, appurtenances or equipment thereof
and no liability upon Landlord for failure of Landlord or others to make any changes, alterations,
additions, improvements, repairs or replacements in or to any portion of the Building or the
Premises, or in or to the fixtures, appurtenances of equipment thereof,
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17.05. Upon providing Tenant with prior reasonable notice, Landlord or
Landlord's agent shall have the right to enter and/or pass through the Premises at all reasonable
times during reasonable hours: (i) to examine the Premises and to show them to the fee owners,
lessors of leases, holders of mortgages, or prospective purchasers, mortgagees or insurers of the
Building; (ii) for the purpose of making such repairs, replacements or changes or doing such
repainting in or to the Premises or in or to the Building or its facilities as may be provided for by
this Lease or as it may be required to make by law or in order to repair and maintain the Building
or its fixtures or facilities; and (iii) for the purpose of conducting such work as may be reasonably
required in connection with any renovation or alteration work being performed by Landlord.
Landlord shall be allowed to take all equipment and materials into and upon the Premises that
may be required for such repairs, changes, repainting, maintenance, renovation or alteration
without liability to Tenant. Landlord shall also have the right to enter on and/or pass through the
Premises, or any part thereof, at such times as such entry shall be required by circumstances of
emergency affecting the Premises or the Building.
17.06. During the period of twelve (12) months prior to the Expiration Date
Landlord may exhibit the Premises to prospective tenants provided such exhibit occurs during
Business Hours on Business Days and Landlord shall first have provided reasonable notice to
Tenant prior to such exhibition.
17.07. For purposes of this Article, the term "Landlord" shall include lessors of
leases and the holders of mortgages to which this Lease is subject and subordinate.
ARTICLE 18
Notice of Accidents
18.01. Tenant shall give prompt notice to Landlord of, (i) any accident in or
about the Premises for which Landlord might be liable; (ii) all fires or other casualties in the
Premises; (iii) all damages to or defects in the Premises, including the fixtures, equipment and
appurtenances thereof for the repair of which Landlord might be responsible; and (iv) all damage
to or defects in any parts of or appurtenances to the Building sanitary, electrical, heating,
ventilating, air-conditioning, elevator and other systems located in or passing through the
Premises or any part thereof.
..ARTICLE 19
Non-Liability; Environmental and Indemnification
19.01. Neither Landlord nor any agent or employee of Landlord shall be liable to
Tenant for any injury or damage to Tenant or to any other person or for any damage to, or loss (by
theft or otherwise) of, any property of Tenant or of any other person, irrespective of the cause of
such injury, damage or loss, except to the extent caused by or due to the negligence or willful acts
of Landlord, its agents, employees or contractors arising from the operation of the Building, it
being understood that no property, other than such as might normally be brought upon or kept in
the Premises as an incident to the reasonable use of the Premises for the purposes herein
permitted, will be brought upon or be kept in the Premises.
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19.02. Tenant shall not cause, or permit its employees, agents, contractors or
invitees to cause, any Hazardous Substances (as hereinafter defined) to be brought upon, kept, or
used on the Premises by Tenant or by any other such person. In the event Tenant is in breach of
this provision, or if the presence of Hazardous Substances on the Premises results in
contamination of the Premises or any other area in the Building, Tenant shall indemnify, defend,
and hold Landlord harmless from any and all claims, judgments, damages, penalties, costs or
losses (including reasonable attorneys' fees and sums paid to consultants and experts) that arise
during or after the Term as a result of such contamination. This indemnification includes costs
incurred in connection with any investigation of site conditions and any cleanup, remedial,
removal, or restoration work required by any governmental agency. The foregoing indemnity
shall survive the expiration or earlier termination of this Lease.
19.03, Tenant shall indemnify and save harmless Landlord and its agents against
and from; (i) any and all claims of whatever nature; (a) arising from the conductor management
of the Premises by Tenant or any of its subtenants or its or their employees, licensees, invitees,
agents or contractors or of any business therein and any work or thing whatsoever done by or on
behalf of Tenant, or any condition created in or about the Premises by Tenant or any of its
subtenants or its or their employees, licensees, invitees, agents or contractors during the Term or
during the period of time, if any, prior to the Commencement Date that Tenant may have been
given access to the Premises; (b) arising from any act, omission or negligence of Tenant or any of
its subtenants or its or their employees, licensees, invitees, agents or contractors; or (c) arising
from any breach, violation or non-performance of any covenant, condition or agreement on the
part of Tenant to be observed or performed hereunder; and (ii) all costs, expenses and liabilities
incurred in or in connection with each such claim or action or proceeding brought thereon. In
case any action or proceeding be brought against Landlord by reason of any such claim, Tenant,
upon notice from Landlord, shall resist and defend such action or proceeding with counsel
reasonably acceptable to Landlord.
19.04. Except as otherwise expressly provided in this Lease, this Lease and the
obligations of Tenant hereunder shall not be affected, impaired or excused because Landlord is
unable to fulfill, or is delayed in fulfilling, any of its obligations under this Lease by reason of
strike, other labor trouble, governmental preemption or priorities or other controls in connection
with a national or other public emergency- or shortages of fuel, supplies or labor resulting
therefrom, or other causes beyond Landlord's reasonable control.
ARTICLE 20
Destruction or Damage
20.01. If the Building or the Premises shall be partially or totally damaged or
destroyed by fire or other cause, and if this Lease shall not have been terminated as in this Article
provided, Landlord shall with reasonable diligence repair the damage and restore and rebuild the
Building and/or the Premises to the condition that existed prior to such casualty, at its expense
(without limiting the rights of any insurance company, subrogated to Landlord's rights hereunder
pursuant to the terms of any insurance policy as to which Landlord has not obtained a waiver of
subrogation to seek recovery from Tenant, and any rights of Landlord under any other provisions
of this Lease or at law or in equity), after notice to it of the damage or destruction and collection
16
by Landlord of the insurance proceeds payable in respect thereof, provided, however, that
Landlord shall not be required to repair or replace any of Tenant's Property.
20.02. If the Building or the Premises shall be partially damaged or partially
destroyed by fire or other casualty, the Rents shall be abated to the extent that the Premises shall
have been rendered untenantable for the period from the date of such damage or destruction to the
date the damage shall be repaired or restored. If the Premises or a major part thereof shall be
totally (which shall be deemed to include substantially totally) damaged or destroyed or rendered
completely (which shall be deemed to include substantially completely) untenantable on account
of fire or other cause, the Rent shall abate as of the date of the damage or destruction and until
Landlord shall repair, restore and rebuild the Building and the Premises; provided, however, that
should Tenant reoccupy a portion of the Premises during the period that the Premises are
completely untenantable, Rents allocable to such portion shall be payable by Tenant for the period
of such occupancy.
20.03. If the Building or the Premises shall be totally damaged or destroyed by
fire or other cause, or if the Building shall be so damaged or destroyed by fire or other cause as to
require a reasonably estimated expenditure of more than thirty (30%) percent of the insurable
value of the Building immediately prior to the casualty, then in either such case Landlord may
terminate this Lease by giving Tenant notice to such effect within 180 days after the date of the
casualty. In case of any damage or destruction mentioned in this Article, Tenant may terminate
this Lease by notice to Landlord given within ten (10) days after either of the following events;
(i) if Landlord has not completed the making of the required repairs and restored and rebuilt the
Building and the Premises within twelve (12) months after the date of such damage or
destruction, or within such period after such date (not exceeding six (6) months) as shall equal the
aggregate period Landlord may have been delayed in doing so by adjustment of insurance, labor
trouble, governmental controls, act of God, or any other cause beyond Landlord's reasonable
control; or (ii) if there is one (1) year or less remaining in the Term at the time of the damage or
destruction which is estimated to take more than thirty (30) days to repair.
20.04. No damages, compensation or claim shall be payable by Landlord to
Tenant for inconvenience, loss of business or annoyance arising from any repair or restoration of
any portion of the Premises or of the Building pursuant to this Article.
20.05. Notwithstanding any of the foregoing provisions of this Article, if
Landlord or the lessor of any Superior Lease or the holder of any Mortgage shall be unable to
collect all of the insurance proceeds (including rent insurance proceeds) applicable to the damage
or destruction of the Premises or the Building by fire or other cause, by reason of some action or
inaction on the part of Tenant or any of its employees, agents, invitees or contractors, then,
without prejudice to any other remedies which may be available against Tenant, there shall be no
abatement of Rent until the earlier to occur of (a) the expiration or termination of this Lease or (b)
the total amount of the Rent not abated which would otherwise have been abated equals the
amount of uncollected insurance proceeds.
20.06. Notwithstanding anything to the contrary herein contained, Landlord shall
not be obligated to repair any damage of any kind to Tenant's Property or replace the same.
17
20.07. In the event of the termination of this Lease pursuant to any of the
provisions of this Article, this Lease and the Tenn and estate hereby granted shall cease and
expire as of the date of such termination with the same effect as if that were the Expiration Date,
and the Fixed Rent and Additional Rent payable hereunder shall be apportioned and paid as of
such date.
ARTICLE 21
Condemnation
21.01. In the event that the whole of the Premises shall be lawfully condemned or
taken in any manner for any public use, this Lease and the term and estate hereby granted shall
forthwith cease and terminate as of the date of vesting of title. In the event that only a part of the
Premises shall be so condemned or taken, effective as of the date of vesting of title, the Fixed
Rent and Additional Rent payable hereunder shall be abated in an amount proportionate to the
area of the Premises so condemned or taken. In the event that only a part of the Building shall be
so condemned or taken, Landlord (whether or not the Premises are affected) may, at Landlord's
option, terminate this Lease and the term and estate hereby granted as of the date of such vesting
of title by notifying Tenant in writing. of such termination within thirty (30) days following the
date on which Landlord shall have received notice of vesting of title. If Landlord does not elect to
terminate this Lease, as aforesaid, this written Lease shall be and remain unaffected by such
condemnation or taking, except that the Fixed Rent and Additional Rent payable hereunder shall
be abated to the extent hereinbefore provided in this Article.
21.02. In the event of its termination pursuant to this Article, this Lease and the
tern and estate hereby granted shall cease and expire as of the date of such termination with the
same effect as if that were the Expiration Date, and the Fixed Rent and Additional Rent payable
hereunder shall be apportioned and paid as of such date.
21.03. In the event of any condemnation or taking hereinbefore mentioned of all
or a part of the Building, Landlord shall be entitled to receive the entire award in the
condemnation proceeding, including any award made for the value of the estate vested by this
Lease in Tenant, and Tenant hereby expressly assigns to Landlord any and all right, title and
interest of Tenant now or hereafter arising in or to any such award or any part thereof, and Tenant
shall be entitled to receive no part of such award. Nothing contained in this Article shall prevent
Tenant from bringing a separate action or proceeding for compensation for any of Tenant's
Property or moving expenses, provided the same shall not otherwise reduce Landlord's award or
delay the payment thereof.
21.04. It is expressly understood and agreed that the provisions of this Article
shall not be applicable to any condemnation or taking for governmental occupancy for a limited
period.
21.05. In the event any part of the Premises be taken to effect compliance with
any law or requirement of public authority other than in the manner hereinabove provided in this
18
Article and such compliance is the obligation of Tenant, Tenant shall not be entitled to any
diminution or abatement of Rent or other compensation from Landlord therefor, but if such
compliance is the obligation of Landlord under this Lease, the Fixed Rent and Additional Rent
due hereunder shall be adjusted in the same manner as is provided in Section 21.01 according to
the reduction in rentable area of the Premises resulting from such taking.
ARTICLE 22
Surrender
22.01. On the Expiration Date, or upon any earlier termination of this Lease,
Tenant shall quit and surrender the Premises to Landlord "broom clean" and in good order,
condition and repair, except for ordinary wear and tear and such damage or destruction as
Landlord is required to repair or restore under this Lease, and Tenant shall remove all of Tenant's
Property therefrom pursuant to Article 12 hereof. Tenant's obligation to observe or perform this
covenant shall survive the expiration or sooner termination of the Term. In no event shall Tenant
be required to remove any of the initial improvements made by Tenant or Landlord in connection
with this Lease.
22.02. Tenant hereby agrees to indemnify and save Landlord harmless against all
costs, claims, loss and liability resulting from delay by Tenant in surrendering the Premises,
including, without limitation, any claims made by any succeeding tenant founded on such delay.
The Parties recognize and agree that the rental value of the Premises after the expiration of the
Term and the potential loss to Landlord resulting from any failure by Tenant timely to surrender
the Premises will be substantial, will exceed the amount of monthly rent theretofore payable
hereunder, and is currently impossible of accurate measurement. Tenant therefore agrees that if
possession of the Premises is not surrendered to Landlord upon the Expiration Date or sooner
termination of the Tenn, Tenant will pay Landlord as liquidated damages for such loss (and not
for any other damages Landlord may sustain) for each month and for each portion of any month
during which Tenant holds over in the Premises after the expiration or termination of the Term, a
sum equal to two (2) times the average Rent payable per month under this Lease during the last
six (6) months of the Term. Nothing herein contained shall be deemed to permit Tenant to retain
possession of the Premises after the Expiration Date or sooner termination of the Term and no
acceptance by Landlord of payments from Tenant after the Expiration Date or sooner termination
of the Term shall be deemed to be other than on account of the amount to be paid by Tenant in
accordance with the provisions of this Article. The aforesaid obligations shall survive the
expiration or sooner termination of the Term.
ARTICLE 23
Conditions of Limitation
23.01. This Lease and the term and estate hereby granted are subject to the
limitation that whenever Tenant shall make an assignment of the property of Tenant for the
benefit of creditors, or shall file a voluntary petition under any bankruptcy or insolvency law or
any involuntary petition alleging an act of bankruptcy or insolvency shall be filed against Tenant
under any bankruptcy or insolvency law, or whenever a petition shall be filed by or against
19
Tenant under the reorganization provisions of the United States Bankruptcy Act or under the
provisions of any law of like import, or whenever a petition shall be filed by Tenant under the
arrangement provisions of the United States Bankruptcy Act or under the provisions of any law of
like import, or whenever a permanent receiver of Tenant of or for the property of Tenant as the
case may be, shall be appointed, Landlord may: (i) at any time after receipt of notice of the
occurrence of any such event; or (ii) if such event occurs without the acquiescence of Tenant, at
any time after the event continues for ninety (90) days, give Tenant a notice of intention to end
the Term at the expiration of thirty (30) days from the date of service of such notice of intention,
and upon the expiration of said thirty (30) day period this Lease and the term and estate hereby
granted, whether or not the Term shall theretofore have commenced, shall terminate with the
same effect as if that day were the Expiration Date, but Tenant shall remain liable for damages as
provided in Article 25 hereof.
23.02. This Lease and the term and estate hereby granted are subject to further
limitation as follows:
(i) whenever Tenant shall default in the payment of any installment of Fixed
Rent or Additional Rent or any other charge payable by Tenant to Landlord, on any day upon
which the salve ought to be paid and such default shall continue for ten (10) days after notice;
(ii) whenever Tenant shall do or permit anything to be done, whether by
action or inaction, contrary to any of Tenant's obligations hereunder, and if such situation shall
continue and shall not be remedied by Tenant within thirty (30) days after Landlord shall have
given to Tenant a notice specifying the same;
(iii) whenever any event shall occur or any contingency shall arise whereby
this Lease or the estate hereby granted or the unexpired balance of the Term would, by operation
of law or otherwise, devolve upon or pass to any person, firm or corporation other than Tenant;
(iv) whenever Tenant shall vacate or abandon the Premises; or
(v) whenever Tenant shall default in the due keeping, observance or
performance of any covenant, agreement, provision or condition hereof on the part of Tenant to
be kept, observed or performed and if such default shall continue and shall not be remedied by
Tenant within thirty (30) days after Landlord shall have given to Tenant a notice specifying the
same provided however, that if the default is such that cannot be remedied within such thirty (30)
day period, provided that Tenant shall have commenced such remedy within said thirty (30) day
period and thereafter Tenant fails to diligently prosecute the same to completion; then, in any of
said cases set forth in the foregoing Subsections, Landlord may give to Tenant a notice of
intention to end the Term at the expiration of thirty (30) days from the date of the service of such
notice of intention, and upon the expiration of said thirty (30) days this Lease and the term and
estate hereby granted, whether or not the Term shall theretofore have commenced, shall
terminate with the same effect as if that day were the Expiration Date, but Tenant shall remain
liable for damages as provided herein.
23.03. Notwithstanding anything to the contrary herein contained, if an order for
relief is entered in any case which is commenced by or against Tenant under the present or any
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future federal bankruptcy code, Landlord shall be entitled to invoke any and all rights and
remedies available to it under such bankruptcy code or this Lease, including, without limitation,
such rights and remedies as may be necessary to protect adequately Landlord's right, title and
interest in and to the Premises or any part thereof.
ARTICLE 24
Re-Entry by Landlord
24.01. If Tenant shall default in the payment of any installment of Rent on any
date upon which the same is required to be paid hereunder, and if such default shall continue for
five (5) days after Landlord shall have given to Tenant a notice specifying such default, or if this
Lease shall expire as in Article 23 provided, Landlord or Landlord's agents and employees may
re-enter the Premises, or any part thereof, immediately or at any time thereafter without being
liable to indictment, prosecution or damages therefrom, to the end that Landlord may have, hold
and enjoy the Premises again as and of its first estate and interest therein. In the event of any
termination of this Lease under the provisions of Article 23 or if Landlord shall re-enter the
Premises under the provisions of this Article or in the event of the termination of this Lease, or of
re-entry, by or under any summary dispossess or other proceedings or action or any provision of
law by reason of default hereunder on the part of Tenant, Tenant shall thereupon pay to Landlord
the Fixed Rent and Additional Rent payable by Tenant to Landlord up to the time of such
termination of this Lease, or of such recovery of possession of the Premises by Landlord, as the
case maybe, and shall also pay to Landlord damages as provided in Article 25 hereof.
24.02. In the event of a breach or threatened breach by Tenant of any of its
obligations under this Lease, Landlord shall also have the right to seek injunctive relief. The
special remedies to which Landlord may resort hereunder are cumulative and are not intended to
be exclusive of any other remedies or means of redress to which Landlord may lawfully be
entitled at any time and Landlord may invoke any remedy allowed at law or in equity as if
specific remedies were not provided for herein.
24.03. If this Lease shall terminate under the provisions of Article 23 hereof, or if
Landlord shall re-enter the Premises under the provisions of this Article, or in the event of the
termination of this Lease, or of reentry, by or under any summary dispossess or other proceeding
or action or any provision of law by reason of default hereunder on the part of Tenant, Landlord
shall be entitled to retain all moneys, if any, paid by Tenant to Landlord, whether as advance rent,
security or otherwise, but such moneys shall be credited by Landlord against any Fixed Rent or
Additional Rent due from Tenant at the time of such termination or re-entry or, at Landlord's
option, against any damages payable by Tenant under Article 25 hereof or pursuant to law.
ARTICLE 25
Damages
25.01. If this Lease is terminated under the provisions of Article 23, or if
Landlord shall re-enter the Premises under the provisions of Article 24, or in the event of the
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termination of this Lease, or of re-entry, by or under any summary dispossess or other proceeding
or action or any provision of law by reason of default hereunder on the part of Tenant, Tenant
shall pay to Landlord as damages a sum which at the time of such termination of this Lease or at
the time of any such re-entry by Landlord equals the sum of the Fixed Rent and the Additional
Rent which would have been payable by Tenant (conclusively presuming the Additional Rent to
increase annually by three (3%) percent over the amount thereof that was payable for the year
immediately preceding such termination) for the period commencing with such earlier termination
of this Lease or the date of any such re-entry, as the case may be, and ending with the Expiration
Date, had this Lease not so terminated or had Landlord not so re-entered the Premises; provided,
however, that if Landlord shall re-let the Premises during said period, Landlord shall credit
Tenant with the net rents received by Landlord from such re-letting, which shall be equal to the
gross rents as and when received by Landlord from such re-letting, less the reasonable expenses
incurred or paid by Landlord in terminating this Lease or in re-entering the Premises and in
securing possession thereof, as well as the reasonable or customary expenses of re-letting,
including altering and preparing the Premises for new tenants, reasonable brokers' commissions
(including commissions paid to any affiliate of Landlord), and all other expenses properly
chargeable against the Premises and the rental thereof, including without limitation, attorneys'
fees and disbursements. Any such re-letting may be for a period shorter or longer than the
remaining Tenn but in no event shall Tenant be entitled to receive any excess of such net rents
over the sums payable by Tenant to Landlord hereunder, nor shall Tenant be entitled in any suit
for the collection of damages pursuant to this Section to a credit in respect of any net rents from a
re-letting, except to the extent that such net rents are actually received by Landlord during and in
respect of the comparable month of what would have been the unexpired Term. If the Premises
or any part thereof should be re-let in combination with other space, the rent received from such
re-letting and the expenses of re-letting shall be apportioned on a square foot basis.
25.02. Suit or suits for the recovery of such damages, or any installments thereof,
may be brought by Landlord from time to time at its election, and nothing contained herein shall
be deemed to require Landlord to postpone suit until the date when the Terns would have expired
if it had not been terminated, or had Landlord not re-entered the Premises. Nothing herein
contained shall be construed to limit or preclude recovery by Landlord against Tenant for any
sums or damages to which, in addition to the damages particularly provided above, Landlord may
lawfully be entitled by reason of any default hereunder on the part of Tenant.
ARTICLE 26
Waivers
26.01. Tenant, on behalf of itself and any and all persons claiming through or
under Tenant, including creditors of all kinds, does hereby waive and surrender all right and
privilege which they or any of them might have under or by reason of any present or future law,
to redeem the Premises or to have a continuance of this Lease for the Term after being
dispossessed or ejected fiom the Premises by process of law or under the terns of this Lease or
after the termination of this Lease as herein provided.
26.02. In the event that Tenant is in arrears in payment of Rent, Tenant agrees
that Landlord may apply any payments made by Tenant to any items it sees fit, irrespective of and
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notwithstanding any designation or request by Tenant as the items against which any such
payments shall be credited.
26.03. Landlord and Tenant hereby waive trial by jury in any action, proceeding
or counterclaim brought by either against the other on any matter 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 Premises, including any claim of injury or damage, or any emergency or other
statutory remedy with respect thereto. Tenant also waives the provisions of any law relating to
notice and/or delay in levy of execution in case of an eviction or dispossess, and of any other law
of like import now or hereafter in effect. If Landlord commences any summary proceeding,
Tenant agrees that Tenant will not interpose any counterclaim of whatever nature or description in
any such proceeding, other than any counterclaim which would be waived if not then asserted as a
counter claim.
26.04. The provisions of this Lease shall be considered express agreements
governing the services to be furnished by Landlord, and Tenant agrees that any laws and/or
requirements of public authorities, now or hereafter in force, shall have no application in
connection with any enlargement of Landlord's obligations with respect to such services.
ARTICLE 27
No Other Waivers or Modifications
27.01. The failure of either of the Parties to insist in any one or more instances
upon the strict performance of any one or more of'the obligations of this Lease, or to exercise any
election herein contained, shall not be construed as a waiver or relinquishment for the future of
the performance of such one or more obligations of this Lease or of the right to exercise such
election, but the same shall continue and remain in full force and effect with respect to any
subsequent breach, act or omission. No executory agreement hereafter made between Landlord
and Tenant shall be effective to change, modify, waive, release, discharge or terminate this Lease
in whole or in part, unless such executory agreement is in writing, refers expressly to this Lease
and is signed by the party against whom enforcement of the change, modification, waiver, release,
discharge or termination is sought. No provision of this Lease shall be deemed to have been
waived by Landlord (or Tenant) unless such waiver be in writing signed by Landlord (or Tenant,
as the case may be).
27.02. The foregoing provisions of this section shall not be deemed to limit the
generality of Section 27.01 hereof:
(i) No act or thing done by Landlord or Landlord's agents during the Term
shall be deemed an acceptance of a surrender of the Premises and no agreement to accept a
surrender of all or any part of the Premises shall be valid unless in writing and signed by
Landlord. No employee of Landlord or of Landlord's agents shall have any power to accept the
keys of the Premises prior to the expiration or sooner tennination of this Lease.
(ii) The receipt by Landlord of Rent, with knowledge of a breach of any
obligation of this Lease, shall not be deemed a waiver of such breach.
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(iii) No payment by Tenant or receipt by Landlord of a lesser amount than the
correct amount of Fixed Rent or Additional Rent shall be deemed to be other than a payment on
account of the earliest stipulated Rent, or as Landlord may elect to apply the same, nor shall any
endorsement or statement on any check or any letter accompanying any check or payment be
deemed an accord and satisfaction, and Landlord may accept such check or payment without
prejudice to Landlord's right to recover the balance or pursue any other remedy in this Lease or
at law provided.
ARTICLE 28
Curing Tenant's Defaults,
Additional Rent
28.01. If Tenant shall default in the performance of any of Tenant's obligations
under this Lease, Landlord, without thereby waiving such default, may (but shall not be obligated
to) perform the same for the account and at the expense of Tenant: (i) without notice, in a case of
emergency; and (ii) in any other case, only if such default continues after the expiration of the
applicable cure period provided in this Lease for Tenant to cure such default.
28.02. Bills for reasonable out-of-pocket expenses incurred by Landlord in
connection with any such performance by it for the account of Tenant, and bills for all reasonable
costs, expenses and disbursements of every kind and nature whatsoever, including reasonable
counsel fees, involved in collecting or endeavoring to collect the Fixed Rent, Additional Rent or
any part thereof or enforcing or endeavoring to enforce any rights against Tenant, under or in
connection with this Lease, or pursuant to law, including any such cost, expense and disbursement
involved in instituting and prosecuting summary proceedings, as well as bills for any property,
material, labor or services provided, furnished or rendered, by Landlord or at its instance to
Tenant, may be sent by Landlord to Tenant monthly, or immediately, at Landlord's option, and
shall be due and payable with the next monthly installment of Fixed Rent in accordance with the
terms of such bills.
ARTICLE 29
Parties Bound
29.01. The obligations of this Lease shall bind and benefit the successors and
assigns of the Parties with the same effect as if mentioned in each instance where a party is named
or referred to, except that no violation of the provisions of Article 34 shall operate to vest any
rights in any successor or assignee of Tenant and that the provisions of this Article shall not be
construed as modifying the conditions of limitation contained herein. However, the obligations of
Landlord under this Lease shall not be binding upon the landlord herein named with respect to
any period subsequent to the sale, conveyance, assignment or transfer of its interest in the
Building and/or the Land, as owner or lessee thereof, and in the event of such sale, conveyance,
assignment or transfer, Landlord shall be and hereby is entirely freed and relieved of all covenants
and obligations of Landlord hereunder, provided that the purchaser, grantee, assignee or other
transferee has assumed the obligations of Landlord hereunder, in which event said covenants and
obligations shall thereafter be binding upon each purchaser, grantee, assignee or other transferee
24
of the interest of the landlord herein named as such owner or lessee of the Building and/or the
Land, but only with respect to the period ending with a subsequent sale, conveyance, assignment
or transfer within the meaning of this Article.
29.02. Tenant shall look only to Landlord's estate and interest in the Building for
the satisfaction of Tenant's remedies or the collection of a judgment (or other judicial process)
requiring the payment of money by Landlord hereunder, and no other property or assets of
Landlord shall be subject to levy, execution or other enforcement procedure for the satisfaction of
Tenant's remedies under or with respect to this Lease, the relationship of landlord and tenant
hereunder or Tenant's use or occupancy of the Premises. In no event, and under no
circumstances, shall any officer, shareholder, employee, agent or principal (disclosed or
undisclosed) of Landlord have any personal liability or monetary obligation of any kind under or
pursuant to this Lease or otherwise be liable for the performance of Landlord's obligations
hereunder. in no event shall Landlord or any such officer, shareholder, employee, agent or
principal ever be liable for incidental or consequential damages.
ARTICLE 30
Notices
Except as otherwise provided in this Lease, any notice or other communication which Landlord
may desire or be required to give to Tenant, shall be deemed sufficiently given or rendered if in
writing, sent by registered or certified mail or nationally-recognized overnight courier service
addressed to Tenant at the address for tenant identified in the first paragraph hereof and the time
of the giving of such notice or communication (as well as the time of the giving of any notice to
Landlord) shall be deemed to be the time when the same is received (or receipt thereof is refused
for any reason)) Any notice or other communication by Tenant to Landlord must be served by
registered or certified mail or overnight courier addressed to Landlord at the address first
hereinabove given for the Landlord, attention: Charles Carrow or at such other address as
Landlord shall designate by written notice. Either party hereto may change its mailing address
by giving notice to the other pursuant to the provisions of this Article.
ARTICLE 31
Estoppel Certificate
31.01. Tenant agrees, at any time and from time to time, as requested by
Landlord or the holder of a Mortgage, upon not less than ten (10) days' prior notice, to execute
and deliver to Landlord a written statement executed and acknowledged by Tenant, in form
satisfactory to Landlord or such holder, 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 as modified and
stating the modifications), certifying the dates to which the Fixed Rent and Additional Rent have
been paid, stating whether or not, to the best knowledge of Tenant, Landlord is in default in
performance of any of its obligations under this Lease, and, if so, specifying each such default of
wluch Tenant has knowledge, and setting forth such other information as Landlord may
reasonably request, it being intended that any such statement delivered pursuant hereto may be
relied upon by others with whom Landlord may be dealing.
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ARTICLE 32
Arbitration
32.01. Either party may request arbitration of any matter in dispute wherein
arbitration is expressly provided in this Lease as the appropriate remedy. The arbitration shall be
conducted in the city which is the center or principal municipality in the Metropolitan Statistical
Area in which the Building is located and, to the extent consistent with this Article, in accordance
with the then prevailing rules of the American Arbitration Association (or any organization that is
the successor thereto) by an arbitrator or arbitrators having a knowledge of the commercial real
estate market in municipality in which the Building is located. In rendering any decision or award
hereunder, the arbitrator(s) shall not add to, subtract from or otherwise modify the provisions of
'this Lease.
32.02. Unless otherwise set forth herein, the fees and expenses of the arbitrator(s)
and all other expenses (not including the attorneys' fees, witness fees and similar expenses of the
Parties) of the arbitration shall be borne by the Parties equally.
ARTICLE 33
No Other Representations, Construction,
Governing Law, Inability to Perform
33.01. Tenant expressly acknowledges and agrees that Landlord has not tirade
and is not making, and Tenant, in executing and delivering this Lease, is not relying upon, any
warranties, representations, promises or statements with respect to the Building, the Land, the
Premises, Real Estate Taxes, School Taxes, Operating Expenses or any other matters, except to
the extent that the same are expressly set forth in this Lease or in any other written agreement
which may be made between the Parties concurrently with the execution and delivery of this
Lease and shall expressly refer to this Lease. This Lease and said other written agreement(s)
made concurrently herewith, if any, are hereinafter referred to as the "Lease Documents". It is
understood and agreed that all understandings and agreements heretofore had between the Parties
are merged in the Lease Documents, which alone fully and completely express their agreement
and that the same are entered into after full investigation, neither party relying upon any statement
or representation made by the other and not embodied in the Lease Documents.
33.02. If any of the provisions of this Lease, or the application thereof to any
person or circumstances, shall, to any extent, be invalid or unenforceable, the remainder of this
Lease, or the application of said provision or provisions to persons or circumstances other than
those as to whom or which it is held invalid or unenforceable, shall not be affected thereby, and
every provision of this Lease shall be valid and enforceable to the-fullest extent permitted by law.
33.03. This Lease shall be governed in all respects by the laws of the
Commonwealth of Pennsylvania.
33.04. This Lease and the obligation of Tenant to pay Rent and perform all of the
other covenants and agreements hereunder on the part of Tenant to be performed shall in no wise
26
be affected, impaired or excused because Landlord is unable to fulfill any of its obligations under
this Lease or to supply or is delayed in supplying any service expressly or impliedly to be
supplied or is unable to make or is delayed in making any repair, additions, alterations or
decorations or is unable to supply or is delayed in supplying any equipment or fixtures if
Landlord is prevented or delayed from so doing by reason of strike or labor troubles or any other
cause whatsoever beyond Landlord's reasonable control including but not limited to,
governmental preemption in connection with a national emergency or by reason of any rule, order
or regulation of any department or subdivision thereof or any government agency or by reason of
the conditions of supply and demand which have been or are affected by war or other emergency.
ARTICLE 34
AssiMent, Mortgaging, Subletting
34.01. Tenant covenants and agrees for Tenant, its successors, assigns and legal
representatives, that neither this Lease nor the Term, nor any part hereof or thereof, will be
assigned, mortgaged, pledged, encumbered or otherwise transferred (whether voluntarily,
involuntarily, by operation of law or otherwise), and that neither the Premises, nor any part
thereof, will be encumbered in any manner by reason of any act or omission on the part of Tenant,
or will be used or occupied, or permitted to be used or occupied, or utilized for desk space or for
any purpose other than as hereinbefore set forth, or will be sublet, without the prior written
consent of Landlord in every case.
34.02. Any subletting or assignment permitted by Landlord shall be subject to all
the covenants, agreements, terms, provisions and conditions contained in this Lease. Tenant shall
promptly furnish to Landlord a true and complete copy of each such sublease or assignment.
Tenant covenants and agrees that, notwithstanding such assignment or any such subletting to any
subtenant and/or acceptance of Fixed Rent or Additional Rent by Landlord from any subtenant or
assignee, Tenant shall and will remain fully liable for the payment of the Fixed Rent and
Additional Rent due and to become due hereunder and for the performance of all the covenants,
agreements, terms, provisions and conditions contained in this Lease on the part of Tenant to be
performed. Tenant further covenants and agrees that notwithstanding any such assignment or
subletting, no other or fin-ther assignment, underletting or subletting of the Premises or any part
thereof shall or will be made except upon compliance with and subject to the provisions of this
Article.
34.03. If this Lease is assigned, or if the Premises or any part thereof are sublet or
occupied by anybody other than Tenant, Landlord may, after default by Tenant, collect Rent from
the assignee, subtenant or occupant, and apply the net amount collected to the Rent herein
reserved, but no such assignment, subletting, occupancy or collection shall be deemed a waiver by
Landlord of any of Tenant's covenants contained in this Article or the acceptance of the assignee,
subtenant or occupant as Tenant, or a release of Tenant from the further performance by Tenant of
covenants on the part of Tenant herein contained. The consent by Landlord to an assignment or
underletting shall not in any way be construed to relieve Tenant from obtaining the express
consent in writing of Landlord to any further assignment or subletting. In no event shall any
27
permitted subtenant assign or encumber its sublease or further sublet all or any portion of its
sublet space, or otherwise suffer or permit the sublet space or any part thereof to be used or
occupied by others, without Landlord's prior written consent in each instance. Any assignment,
sublease, mortgage, pledge, encumbrance or transfer in contravention of the provisions of this
Article shall be null and void.
ARTICLE 35
Change of Location
35.01. Tenant covenants and agrees that Landlord shall have the absolute and
unqualified right upon notice to Tenant to designate as the Premises other space in the Building
that is comparable in size to the Premises, provided such relocation shall not occur during the last
six (6) months of the term. Such notice shall specify and designate the space so substituted for
the Premises. Notwithstanding such substitution of space, this Lease and all the terms,
provisions, covenants and conditions contained in this Lease shall remain and continue in full
force and effect, except that the Premises shall be and be deemed to be such substituted space
(hereinafter, "Substituted Space"), with the same force and effect as if the Substituted Space were
originally specified in this Lease as the premises demised hereby.
35.02. In the event of the substitution of space as provided in Section 35.01
hereof (i) if the Substituted Space has a rentable area that is less than the rentable area of the
originally Premises, the Fixed Rent payable hereunder from the date that Tenant takes possession
of the Substituted Space shall be decreased to reflect the lesser number of rentable square feet in
the Substituted Space; provided, however, that in no event shall the Substituted Space contain less
than 95% of the rentable area of the originally Premises; (ii) Landlord shall, at Landlord's
expense, prepare the Substituted Space in substantially the same manner as Tenant has prepared
the Premises and shall have the right to remove any floor covering, wall covering, cabinet work,
and any other decoration, as well as telephone lines and any other communication lines, to the
Substituted Space; and (iii) as soon as Landlord has completed preparing the Substituted Space as
set forth in clause (ii) of this Section, Tenant shall move to the Substituted Space at Landlord's
expense, and upon failure of Tenant to so move to the Substituted Space, Landlord may, as
Tenant's agent, remove Tenant from the Premises to the Substituted Space; failure of Tenant to
move to the Substituted Space pursuant to this Article shall be deemed a substantial breach of this
Lease. Following any substitution of space pursuant to this Article, Landlord and Tenant shall,
promptly at the request of either party, execute and deliver an amendment of this Lease, in form
and substance reasonably satisfactory to Landlord, to provide for such substitution of space and
the change (if any) in the Fixed Rent.
ARTICLE 36
Security
36.01. Tenant has deposited $0.00 with Landlord to secure Tenant's faithful
performance and observance of its obligations under this Lease, including, without limitation, the
surrender of possession of the Premises to Landlord as herein provided. If Tenant defaults
28
hereunder and such default is not cured within the applicable cure period, Landlord may without
prejudice to Landlord's other remedies, apply all-or part of said security deposit to cure Tenant's
default. Landlord shall have no obligation to pay interest on any sums so held. If Landlord
applies or retains any part of said security deposit, Tenant, within five (5) business days after
notice from Landlord, shall deposit with Landlord the amount so applied or retained so that
Landlord has the full amount of said security deposit on hand at all times during the Term. In the
event that Tenant is not in default of this Lease upon the expiration of this Lease beyond any
applicable cure period (and cures such default within said period, the security deposit shall be
returned to Tenant after the date fixed as the end of the Lease and after delivery of possession of
the Premises to Landlord. Tenant may not apply any funds deposited as security to any Fixed
Rent or Additional Rent due hereunder. In the event Landlord sells or otherwise transfers the
Building, Landlord will transfer any sums deposited hereunder to such successor owner and
Landlord shall thereupon be released by Tenant from all liability for the return of said security
deposit, any claims Tenant may have to said security deposit shall be enforceable solely against
said successor owner.
ARTICLE 37
Miscellaneous
37.01. If, in connection with obtaining financing for the Building, a bank,
insurance company or other lending institution shall request reasonable modifications to this
Lease as a condition to such financing, Tenant will not unreasonably withhold, delay or defer its
consent thereto, provided that such modifications do not increase the obligations (monetary or
otherwise) of Tenant hereunder, nor decrease the obligations of Landlord hereunder, except in
each such case to a de minimis extent. Tenant agrees, however, that the obligation to give notice
to any Superior Lessor or holder of any Mortgage shall not be deemed an increase in Tenant's
obligations as contemplated in the immediately preceding sentence.
37.02. If, at any time during the last month of the Term, Tenant shall have
removed all or substantially all of Tenant's Property from the Premises, Landlord may, (and
Tenant hereby irrevocably grants to Landlord a license to), immediately enter and alter, renovate
and redecorate the Premises, without diminution or abatement of Rent, or incurring liability to
Tenant for any compensation, and such acts shall have no effect upon this Lease.
37.03. If Landlord is unable to deliver possession of the Premises on the
Commencement Date because of the holding-over or retention of possession by any tenant or any
undertenant or other occupant or for any other reason, Landlord shall not be subject to any
liability for the failure to deliver possession of the Premises on said Date and the validity of this
Lease shall not be impaired under such circumstances, nor shall the same be construed in any way
to extend the Term, but the Rent payable hereunder shall be abated (provided Tenant is not
responsible for Landlord's inability to obtain possession of the Premises) until after Landlord
shall have given Tenant written notice that Landlord is able to deliver possession of the Premises
in the condition required by this Lease. If express permission is given to Tenant to enter into
possession of the Premises, or to occupy premises other than the Premises, prior to the
Commencement Date, Tenant covenants and agrees that such possession and/or occupancy shall
be deemed to be under all of the terms, covenants, conditions and provisions of this Lease, except
29
for the obligation to pay Fixed Rent as set forth in Article 1 of this Lease. Without incurring any
liability to Tenant, Landlord may permit access to the Premises and open the same, whether or not
Tenant shall be present, upon demand of any receiver, trustee, assignee for the benefit of
creditors, sheriff, marshal or court officer entitled to, or reasonably purporting to be entitled to for
any lawful purpose or upon demand of any representative of the fire, police, building, sanitation
or other department of the city, state or federal governments.
37.04. Tenant shall not place or permit to be placed any vending machines in the
Premises, except for use by Tenant's employees only.
37.05. Tenant will not clean, nor require, permit, suffer or allow to be cleaned,
any window in the Premises in violation of any Applicable Law or the iules of any board or body
having or asserting jurisdiction.
37.06. Tenant agrees that its sole remedies in cases where Landlord's
reasonableness in exercising its judgment or withholding its consent or approval is applicable
pursuant to a specific provision of this Lease, or any rider or separate agreement relating to this
Lease, if any, shall be those in the nature of an injunction, declaratory judgment, or specific
performance, the right to money damages or other remedies being hereby specifically and
absolutely waived.
37.07. The Article headings of this Lease are for convenience only and are not to
be given any effect whatsoever in construing this Lease.
37.08. If Tenant is a corporation, limited liability company or partnership, each
individual executing this Lease on behalf of Tenant hereby represents and warrants that Tenant is
a duly formed and validly existing entity qualified to do business in the Commonwealth of
Pennsylvania and that Tenant has the full right and authority to execute and deliver this Lease and
that each person signing this Lease on behalf of Tenant is authorized to do so.
37.09. This Lease shall not be binding upon Landlord or Tenant unless and until
it is signed by Landlord and a fully signed copy thereof is delivered by Landlord to Tenant.
37.10. Any words, phrases, clauses and the like which have been deleted from
this Lease prior to execution (including, but not limited to, altering or crossing out, obliterating
words by "white out" or otherwise) shall be of no force or effect, unless initialed by both Parties.
In this regard, deleted Lease language shall not be used to interpret the intent of the Parties with
respect to any obligation arising out of the landlord-tenant relationship even if the rest of this
Lease is silent or ambiguous about a particular obligation; it being specifically agreed that for all
intents and purposes, the deleted Lease language shall be ignored.
ARTICLE 3 8
Late Charges
38.01. If Tenant shall fail to pay all or any part of any installment of Fixed
Annual Rent or Additional Rent for more than ten (10) days after the same shall have become due
30
and payable, Tenant shall pay as Additional Rent to Landlord a late charge of three (3) cents for
each dollar of the amount of such Fixed Rent or Additional Rent which shall not have been paid
to Landlord within such ten (10) days after becoming due and payable.
38.02. In every case in which Tenant is required by the terns of this Lease to pay
to Landlord a sum of money and payment is not made within ten (10) days after the same shall
become due, Tenant shall pay as Additional Rent, and in addition to the late charge payable
pursuant to Section 38.01, interest on such sum or so much thereof as shall be unpaid from the
date it becomes due until it is paid. Such interest shall be computed at a rate which shall be two
(2.00%) percent per month; provided, however, in no event shall such interest be: (i) in excess of
the highest rate of interest which shall from time to time be permitted under the laws of the
Commonwealth of Pennsylvania to be charged on late payments of sums of money due pursuant
to the terms of a lease; or (ii) computed and payable for less than a full calendar month. Tenant
acknowledges and agrees that, except as otherwise expressly provided herein, if Tenant fails to
dispute any item of Additional Rent within thirty (30) days after receipt of a bill or notice
therefor, Tenant shall be deemed to have waived its right to dispute the same.
38.03. The late charge and the interest payable pursuant to this Article shall be:
(i) payable within ten (10) days after Tenant's receipt of bill; and (ii) without prejudice to any of
Landlord's rights and remedies hereunder, at law or in equity for nonpayment or late payment of
Rent or other sure and in addition to any such rights and remedies.
ARTICLE 39
Si rg_nage
39.01. Tenant shall neither exhibit, inscribe, display, paint or affix any sign,
advertisement, object, notice or other lettering on any portion of the Building or in or on the
windows or doors or the outside of the Premises nor exhibit, inscribe, paint, display or affix on
any part of the Premises or the Building any signage or lettering that is otherwise visible to the
general public; provided, however, that the name of Tenant and any Tenant affiliate (including
Diversified Corporate Services) but not more than two such affiliates, may, at Tenant's sole cost
and expense, be displayed on the entrance door to the Premises and in the elevator lobby of the
floor on which the Premises are located subject to Landlord's prior written approval as to the
location, size, color, design and style of such display.
39.02. Landlord agrees to provide Tenant, at Landlord's sole cost and expense,
with a single listing of Tenant's name on the directory in the lobby of the Building. Upon written
request by Tenant, Landlord agrees to provide Tenant with additional listings on such directory, at
Tenant's sole cost and expense, provided Tenant shall be limited to a number of listings
determined by multiplying Tenant's Share by the total number of spaces for listings on such
directory.
39.03 Any signage, advertisement, object, notice or lettering which shall be
exhibited, inscribed, displayed, painted or affixed by on behalf of Tenant in violation of the
provisions of this Article may be removed by Landlord without notice to Tenant and the cost of
31
any such removal and the repair of the affected area shall be paid by Tenant as Additional Rent
withui ten (10) days after Landlord's rendition of a bill therefor.
39.04 Upon the installation of any such signage or other lettering, such signage
or lettering shall not be removed, changed or otherwise modified in any way without Landlord's
prior written approval in each instance.
39.05 Any signage, advertisement, notice or other lettering which shall be
exhibited, inscribed, displayed, painted or affixed by on behalf of Tenant in violation of the
provisions of this Article may be removed by Landlord without notice to Tenant and the cost of
any such removal and the repair of the affected area shall be paid by Tenant as Additional Rent
within ten (10) days after Landlord's rendition of a bill therefor.
ARTICLE 40
Subdivision of Buildinn
40.01. Tenant understands that the entire Building is presently owned and
operated by Landlord as a single project. If Landlord or any successor owner shall determine to
sell any portion of the Building, the successor owner(s) may in its sole and unfettered discretion
from time to time choose to operate any such portion of the Building as a separate "building"
distinct from any other such portions of the Building. Landlord shall also have the right to
subdivide the Building at any time for any purpose whatsoever, including without limitation, for
the purpose of creating condominium ownership of portions of the Building. Tenant agrees to
cooperate with Landlord in completing such subdivision and to execute all such documents and
amendments to this Lease as may be reasonably necessary or desirable in Landlord's reasonable
judgment to effectuate same; provided, however, that Tenant's quiet enjoyment of the Premises
shall not be disturbed thereby and neither said subdivision nor any documents or amendments
shall serve to directly or indirectly increase Tenant's rent or additional rent hereunder, or reduce
Tenant's rights hereunder, Tenant agrees that upon subdivision of the Building, Landlord may
sell, transfer or convey one or more portions of the Building, and that title to such portions may
be held in other than the name of Landlord. In this regard, as a material inducement to Landlord
to enter into this Lease, Tenant covenants and agrees that except for the inside surfaces of all
walls, windows and doors bounding the Premises, all of the remainder of the Building is
exclusively reserved to Landlord and Tenant hereby expressly waives and releases any and all
claims or nights by way of lease, license, easement or otherwise in or to use any of such areas
reserved to Landlord or any of the services contained therein.
ARTICLE 41
Hazardous Materials
41.01. Tenant covenants and agrees that in connection with any construction
carried out by or on behalf of Tenant, and Tenant's operation and use of the Premises, Tenant will
comply with all applicable federal, state or local environmental laws, regulations, ordinances or
32
administrative or judicial orders relating to the generation, recycling, reuse, sale, storage,
handling, transportation or disposal of any Hazardous Substances (as hereinafter defined).
41.02. Tenant covenants and agrees that the Premises will not be used for the
storage of Hazardous Substances and that no transformers containing polychlorinated biphenyls
("PCB") will be used or stored on the Premises which need to be registered or licensed.
41.03. As used in this Lease, the term "Hazardous Substances" shall mean any
substance or material defined or designated as hazardous or toxic waste, hazardous or toxic
material, a hazardous or toxic substance or other similar term by any federal, state or local
environmental statute, regulation or ordinance presently in effect or, that may be promulgated in
the future, as such statutes, regulations and ordinances may be amended from time to time, and
asbestos and freon.
41.04. Landlord and Tenant recognize the potential for liability and damages
(including penalties, fines, demands, losses, liens, lawsuits, other proceedings, costs, expenses
and reasonable attorneys' fees) resulting from the release, discharge, disposal or emission of
Hazardous Substances into the environment (which is defined to include, but not limited to, air,
ground, surface water, and groundwater) at, from, onto, under or affecting the Premises
(hereinafter collectively referred to as `Environmental Contaminations"). Tenant shall be liable
for all Environmental Contamination caused by Tenant and/or its employees, agents, contractors
and invitees (including damages, fines, and penalties related thereto) which occur after the date of
this Lease and prior to the expiration or termination of the Term; Landlord shall be liable for
Environmental Contamination attributable to activities conducted by Landlord and Landlord's
other tenants, and Landlord's and their respective employees, agents, contractors and invitees, or
others. Each party shall be responsible for compliance with all Applicable Laws which may apply
to said Environmental Contamination for which such party is responsible.
41.05. Tenant shall be liable for, and shall defend and indemnify Landlord and
hold the Landlord harmless from, any and all claims asserted against, incurred or required to be
paid by Landlord (regardless of when asserted or by whom), to the extent such claims are asserted
in connection with or arise out of any or all of the possession, use, handling, or storage of
Hazardous Substances in the Building and/or the Premises by the Tenant, its employees, agents
and/or invitees during the term of this Lease. This indemnification shall survive the Expiration
Date or sooner termination of this Lease.
ARTICLE 42
PENNSYLVANIA PROVISIONS
Notwithstanding any other provision hereof, the terms and provisions set forth in this Article 42
are and shall constitute terms and provisions of the Lease. In the event of a conflict or differing
language and/or provisions between the other terms and provisions of this Lease and the terms
and provisions set forth in this Article 42, the terms and provisions set forth in this Article 42
shall govern and constitute the applicable provision of the Lease addressing such terns and/or
provision. If any of the terms and provisions of this Lease, including any term and provisions
33
{
contained in this Article 42 (i) conflict with any statue, law, rule, interpretation, final un
appealable decision of the highest applicable court of competent jurisdiction, or regulation
enforceable against and/or affecting the Building and/or Premises (each an "Applicable Law")
AND (ii) the Parties are unable to waive the terms and provisions of such Applicable Laws
and/or are unable to agree to differing terms and provisions, then the terms and provisions hereof
shall be deemed modified and/or amended as required so that such term and/or provision shall be
in compliance with each Applicable Law pertaining thereto.
42.01. Landlord reserves the right to stop or interrupt the services provided by Landlord
at any time when necessary or desirable in the reasonable judgment of Landlord by reason of
accident or emergency or for repairs, maintenance, alterations, replacements or improvements.
Landlord shall use reasonable diligence to repair, maintain, alter, replace, or improve same
promptly, but Lessee shall have no claim for rebate or reduction of rent or for damages on
account of any intenuptions in said services occasioned thereby or resulting therefrom.
Provided, however, that Lessee shall be entitled to a pro-rata abatement of rent, if any, for any
such interruption in services which makes Lessee's use of the Premises commercially
impracticable for a period of five (5) consecutive days. Once any such interruption has persisted
for five (5) consecutive days, the pro-rata abatement shall apply to the total number of days
during which Lessee's use was made commercially impracticable.
42.02. SUBORDINATION. This Lease shall be subject to and subordinate at all times
as provided in Article 5 hereof to the lien of any mortgages and/or deeds of trust now or hereafter
made on the Premises, and to all advances made or hereafter to be made thereunder. This and
that subordination provision shall be self-operative and no further instrument of subordination
shall be required.
Lessee shall, at any time during the term of this Lease, within twenty (20) days after
written request by Landlord, certify by written instrument, the form of which shall be furnished
by Landlord, duly executed and acknowledged, to any lender or proposed lender of the property
containing the Demised Premises: (a) as to whether this Lease has been supplemented or
amended and if so, the substance and manner of such supplement or amendment; (b) as to the
validity and force and effect of this Lease in accordance with its tenor as then constituted; (c) as
to the existence, to Lessee's knowledge, of any default hereunder; (d) as to the commencement
and expiration dates of the term of this Lease; and (e) as to any other matters as may be
reasonably so requested.
34
42.03. CONSTRUCTION LIENS.
(a) Tenant will not voluntarily suffer or permit any contractor's,
subcontractor's or supplier's lien (a "Construction Lien") to be filed against the Premises or any
part thereof by reason of work, labor services or materials supplied or claimed to have been
supplied to Tenant; and if any Construction Lien shall at any time be filed against the Premises
or any part thereof, Tenant, within thirty (30) days after notice of the filing thereof, shall cause it
to be discharged of record by payment, deposit, bond, order of a court or competent jurisdiction
or otherwise. If Tenant shall fail to cause such Construction Lien to be discharged within the
period aforesaid, then in addition to any other right or remedy, Landlord may, but shall not be
obligated to, discharge it either by paying the amount claimed to be due or by procuring the
discharge of such lien by deposit or by bonding proceedings. Any amount so paid by Landlord,
plus all of Landlord's costs and expenses associated therewith (including, without limitation,
reasonable legal fees), shall constitute Additional Rent payable by Tenant under this Lease and
shall be paid by Tenant to Landlord on demand with interest from the date of advance by
Landlord at the Default Rate,
(b) Nothing in this Lease, or in any consent to the making of alterations ox
improvements contained shall be deemed or construed in anyway as constituting authorization
by Landlord for the making of any alterations or additions by Tenant within the meaning of 49
P.S. Sections 1101-1902, as amended or under the Contractor and Subcontractor Payment Act or
any amendment thereof, or constituting a request by Landlord, express or implied, to any
contractor, subcontractor or supplier for the performance of any labor or the furnishing of any
materials for the use or benefit of Landlord.
42.04. EVENT OF DEFAULT. If an Event of Default shall occur, the following
provisions shall apply and Landlord shall have, in addition to all other rights and remedies
available at law or in equity, the right and remedies set forth therein, which rights and remedies
may be exercised upon or at any time following the occurrence of any Event of Default.
(a) Acceleration of Rent. By notice to Tenant, Landlord shall have the right to
accelerate all Fixed Rent and all expense installments due hereunder and otherwise payable in
installments over the remainder of the Term, and, at Landlord's option, any other Additional
Rent to the extent that such Additional Rent can be determined and calculated to a fixed sum;
and the amount of accelerated rent to the termination date, without further notice or demand for
payment, shall be due and payable by Tenant within five (5) days after Landlord has so notified
Tenant, such amount collected from Tenant pursuant to a judgment shall be discounted to present
value using an interest rate of ten percent (10%) per annum. Additional Rent which has not been
included, in whole or in part, in accelerated rent, shall be due and payable to Tenant during the
remainder of the Term, in the amounts and at the times otherwise provided for in this Lease.
Notwithstanding the foregoing or the application of any rule of law based on election of
remedies or otherwise, if Tenant fails to pay the accelerated rent in full when due, Landlord
thereafter shall have the right by notice to Tenant, (i) to terminate Tenant's further right to
possession of the Premises and (ii) to terminate this Lease under subparagraph (b) below; and if
Tenant shall have paid part but not all of the accelerated rent, the portion thereof attributable to
35
r
the period equivalent to the part of the Term remaining after Landlord's termination of
possession or termination of this Lease shall be applied by Landlord against Tenant's obligations
owing to Landlord, as determined by the applicable provisions of subparagraphs (c) and (d)
below.
(b) Termination of Lease. By notice to Tenant, Landlord shall have the right to
terminate this Lease as of a date specified in the notice of termination and in such case, Tenant's
rights, including any based on any option to renew, to the possession and use of the Premise shall
end absolutely as of the termination date; and this Lease shall also terminate in all respects
except for the provisions hereof regarding Landlord's damages and Tenant's liabilities arising
prior to, out of and following the Event of Default and the ensuing termination.
Following such termination and the notice of same provided above (as well as upon any other
termination of this Lease by expiration of the Tern or otherwise) Landlord immediately shall
have the light to recover possession of the Premises; and to that end, Landlord may enter the
Premises and take possession, without the necessity of giving Tenant any notice to quit or any
other further notice, with or without legal process or proceedings, and in so doing Landlord may
remove Tenant's property (including any improvements or additions to the Premises which
Tenant made, unless made with Landlord's consent which expressly permitted Tenant to not
remove the same upon expiration of the Term), as well as the property of others as may be in the
Premises, and make disposition thereof in such manner as Landlord may deem to be
commercially reasonable and necessary under the circumstance.
(c) Tenant's Continuing Obligations/Landlord's Reletting Rights.
(1) Unless and until Landlord shall have terminated this Lease under
subparagraph (b) above, Tenant shall remain fully liable and responsible to perform all of the
covenants and to observe all of the conditions of this Lease throughout the remainder of the
Term to the early termination date; and, in addition, Tenant shall pay to Landlord, upon demand
and as Additional Rent, the total sum of all costs, losses and expenses, including reasonable
attorneys' fees, a Landlord incurs, directly or indirectly, because of any Event of Default having
occurred.
(2) If Landlord either terminates Tenant's right to possession without
terminating this Lease or terminates this Lease and Tenant's leasehold estate as above provided,
the, subject to the provisions below, Landlord shall have the unrestricted right to relet the
Premises or any Part(s) thereof to such tenant(s) on such provisions an for such period(s) as
Landlord may deem appropriate.
(3) If Landlord relets the Premises after such a default, the costs
recovered from Tenant shall be reallocated to take into consideration any additional rent which
Landlord receives from the new tenant which is in excess to that which was owed by Tenant.
(d) Landlord's Damages. Landlord may enforce the provisions of this Lease
and may enforce and protect the rights of Landlord hereunder by a suit or suits in equity or at law
for the specific performance of any covenant or agreement contained herein, and for the
36
enforcement of any other appropriate legal or equitable remedy, including, without limitation,
injunctive relief, an for recovery of all moneys due or to become due from Tenant under any of
the provisions of this Lease.
(e) Landlord's Ri t to Cure. Without limiting the generality of the
foregoing, if Tenant shall be in default in the performance of any of its obligations hereunder
and Tenant fails to remedy such default within thirty (30) days after receipt of notice from
Landlord (except in the case of emergency in which case no notice shall be required), in addition
to any other rights it may have in law or in equity, Landlord may, but shall not be obligated to,
cure such default on behalf of Tenant, and Tenant shall reimburse Landlord upon demand for any
sums paid or costs incurred by Landlord in curing such default, including reasonable attorneys'
fees and other legal expenses, together with interest at 5% per annum Rate from the dates of
Landlord's incurring of costs or expenses.
Tenant further waives the right to any notices to quit as may be specified
in the Landlord and Tenant Act of Pennsylvania, Act of April 6, 1951, as amended, or any
similar or successor provision of law, and agrees that five (5) days notice shall be sufficient in
any case where a longer period may be statutorily specified.
(f) Additional Remedies. In addition to, and not in lieu of any of the
foregoing rights granted to Landlord;
(i) TENANT HEREBY EMPOWERS ANY PROTHONOTARY,
CLERK OF COURT OR ATORNEY OF ANY COURT OF RECORD TO APPEAR FOR
TENANT IN ANY AND ALL ACTIONS WHICH MAY BE BROUGHT FOR ANY RENT,
OR ANY CHARGES HEREBY RESERVED OR DESIGNATED AS RENT OR ANY OTHER
SUM PAYABLE BY TENANT TO LANLORD UNDER OR BY REASON OF THIS LEASE
(INCLUDING, WITHOUT LIMITATION, ANY SUM PAYABLE UNDER
SUBPARAGRAPHS (a) THROUGH (e) OF THIS ARTICLE, AND TO SIGN FOR TENANT
AN AGREEMENT FOR ENTERING IN ANY COMPETANT COURT AN ACTION OR
ACTIONS FOR THE RECOVERY OF SAID RENT, CHARGES AND OTHER SUMS, AND
IN SAID SUIT OR IN SAID ACTION OR ACTIONS TO CONFESS JUDGMENT, AGAINST
ENANT FOR ALL OR ANY PART OF THE RENT SPECIFIED IN THIS LEASE AND THEN
UNPAID INCLUDING, AT LANDLORD'S OPTION, THE RENT FOR THE ENTIRE
UNEXPIRED BALANCE OF THE TERM OF THIS LEASE, AND ALL OR ANY PART OF
ANY OTHER OF SAID CHARGES OR SUMS, AND FOR INTEREST AND COSTS
TOGETHER WITH REASONABLE ATTORNEY'S FEES OF 5%. SUCH AUTHORITY
SHALL NOT BE EXHAUSTED BY ONE EXERCISE THEREOF, BUT JUDGMENT MAY
BE CONFESSED A AFORESAID FROM TIME TO TIME AS OFTEN AS ANY OF SAID
RENT OR SUCH OTHER SUMS, CHARGES, PAYMENTS, COSTS AND EXPENSES
SHALL FALL DUE OR BE IN ARREARS, AND SUCH POWER MAY BE EXERCISED AS
WELL AFTER THE EXPIRATION OF THE TERM OR DURING ANY EXTENSION OR
RENEWAL OF THIS LEASE.
(ii) WHEN THIS LEASE OR TENANT'S RIGHT OF POSSESSION
SHALL BE TERMINATED BY COVENANT OR CONDITION BROKEN, OR FOR ANY
37
OTHER REASON, EITHER DURING THE TERM OF THIS LEASE OR ANY RENEWAL
OR EXTENSION THEREOF, AND ALSO WHEN AND AS SOON AS THE TERM HEREBY
CREATED OR ANY EXTENSION THEREOF SHALL HAVE EXPIRED, IT SHALL BE
LAWFUL FOR ANY ATTORNEY AS ATTORNEY FOR TENANT TO FILE AN
AGREEMENT FOR ENTERING IN ANY COMPETENT COURT AN ACTION TO
CONFESS JUDGMENT IN EJECTMENT AGAINST TENANT AND ALL PERSONS
CLAIMING UNDER TENANT, WHEREUPON, IF LANDLORD SO DESIRES, A WRIT OF
EXECUTION OR OF POSSESSION MAY ISSUE FORTHWITH, WITHOUT ANY PRIOR
WRIT OF PROCEEEDINGS, WHATSOEVER, AND PROVIDED THAT IF FOR ANY
REASON AFTER SUCH ACTION SHALL HAVE BEEN COMMENCED THE SAME
SHALL BE DETERMINED AND THE POSSESSION OF THE PREMISES HEREBY
DEMISED REMAIN IN OR BE RESTORED TO TENANT, LANDLORD SHALL HAVE
THE RIGHT UPON ANY SUBSEQUENT DEFAULT OR DEFAULTS, OR UPON THE
TERMINATION OF THIS LEASE AS HEREINBEFORE SET FORTH, TO BRING ONE OR
MORE ACTION OR ACTIONS AS HEREINBEFORE SET FORTH TO RECOVER
POSSESSION OF THE SAID PREMISES.
In any action to confess judgment in ejectment or for rent in arrears, Landlord
shall first cause to be filed in such action an affidavit made by it or someone acting for it setting
forth the facts necessary to authorize the entry of judgment, of which facts such affidavit shall be
conclusive evidence, and if a hue copy of this Lease (and of the truth of the copy such affidavit
shall be sufficient evidence) be filed in such action, it shall not be necessary to file the original as
a warrant of attorney, any rule of Court, custom or practice to the contrary notwithstanding.
(INITIAL). TENANT WAIVER. TENANT
SPECIFICALLY ACKNOWLEDGES THAT TENANT HAS VOLUNTARILY,
KNOWINGLY AND INTELLIGENTLY WAIVED CERTAIN DUE PROCESS RIGHTS TO A
PREJUDGMENT HEARING BY AGREEING TO THE TERMS OF THE FOREGOING
PARAGRAPHS REGARDING CONFESSION OF JUDGMENT. TENANT FURTHER
SPECIFICALLY AGREES THAT IN THE EVENT OF DEFAULT, LANDLORD MAY
PURSUE MULTIPLE REMEDIES INCLUDING OBTAINING POSSESSION PURSUANT
TO A JUDGMENT BY CONFESSION AND ALSO OBTAINING A MONEY JUDGMENT
FOR PAST DUE AND ACCELERATED AMOUNTS AND EXECUTING UPON SUCH
JUDGMENT. IN SUCH EVENT AND SUBJECT TO THE TERMS SET FORTH HERREIN,
LANDLORD SHALL PROVIDE FULL CREDIT TO TENANT FOR ANY MONTHLY
CONSIDERATION WHICH LANDLORD RECEIVES FOR THE LEASED PREMISES IN
MITIGATION OF ANY OBLIGATION OF TENANT TO LANDLORD FOR THAT MONEY.
FURTHERMORE, TENANT SPECIFICALLY WANES ANY CLAIM AGAINST
LANDLORD AND LANDLORD'S COUNSEL FOR VIOLATION OF TENANT'S
CONSTITUTIONAL RIGHTS IN THE EVENT THAT JUDGMENT IS CONFESSED
PURSUANT TO THISE LEASE.
(g) Landlord's Statutory Rights. Landlord shall have all rights and remedies
now or hereafter existing at law or in equity with respect to the enforcement of Tenant's
obligations hereunder and the recovery of the Premises. No right or remedy herein conferred
upon or reserved to Landlord shall be exclusive of any other right or remedy, but shall be
cumulative and in addition to all other rights and remedies given hereunder or now or hereafter
38
existing at law, Landlord shall be entitled to injunctive relief in case of the violation, or
attempted or threatened violation, of any covenant, agreement, condition or provision of this
Lease, or to a decree compelling performance of any covenant, agreement, condition or provision
of this Lease.
(h) Remedies Not Limited. Nothing herein contained shall limit or prejudice
the right of Landlord to exercise any or all rights and remedies available to Landlord by reason
of default or to provide for and obtain in proceedings under any bankruptcy or insolvency laws,
an amount equal to the maximum allowed by any law in effect at the time when, and governing
the proceedings in which, the damages are to be provide, whether or not the amount be greater,
equal to, or less than the amount of the loss or damage referred to above.
(i) No Waiver by Landlord. No delay or forbearance by Landlord in
exercising any right or remedy hereunder, or Landlord's undertaking or performing any act or
matter which is not expressly required to be undertaken by Landlord shall be construed,
respectively, to be a waiver of Landlord's rights or to represent any agreement by Landlord to
undertake or perform such act or matter thereafter. Waiver by Landlord of any breach by Tenant
of any covenant or condition herein contained (which waiver shall be effective only if so
expressed in writing by Landlord) or failure by Landlord to exercise any right or remedy in
respect of any such breach shall not constitute a waiver or relinquishment for the future of
Landlord's right to have any such covenant or condition duly performed or observed by Tenant,
or of Landlord's rights arising because of any subsequent breach of any such covenant or
condition nor bar any right or remedy of Landlord in respect of such breach or any subsequent
breach. Landlord's receipt and acceptance of any payment from Tenant which is tendered not in
conformity with the provisions of this Lease or following an Event of Default (regardless of any
endorsement or notation on any check or any statement in any letter accompanying any payment)
shall not operate as an accord and satisfaction or a waiver of the right of Landlord to recover any
payments then owing by Tenant which are not paid in full, or act as a bar to the termination of
this Lease and the recovery of the Premises because of Tenant's previous default.
42.05. Intentionally omitted.
42,06. Tenant shall indemnify, protect, defend and save Landlord harmless with regard
to any non-compliance or alleged non-compliance by Tenant with any law, order, ordinance,
regulation, permit, license or other governmental matter in any way relating to the conduct of
Tenant's business or profession in the Premises. If Landlord is named as defendant or a
responsible party with respect to any alleged violation or non-compliance by Tenant as aforesaid,
Landlord also may require, by notice to Tenant, that the matters or conduct giving rise thereto be
discontinued by Tenant unless and until the alleged violation or non-compliance is resolved in
Tenant's favor.
42.07. NOTICES. Wherever in this Lease it shall be required or permitted that-notice or
demand be given or served by either party to this Lease to or on the other party, such notice or
demand shall be deemed to have been duly given or served if in writing and either: (i) personally
served; (ii) delivered by pre-paid nationally recognized overnight courier service Lo.& Federal
Express) with evidence of receipt required for delivery; or (iii) forwarded by Registered or
39
Certified mail, return receipt requested, postage prepaid; in all such cases addressed to the parties
at the addresses set forth at the address for tenant identified in the first paragraph hereof. Each
such notice shall be deemed to have been given to or served upon the party to which addressed
on the date the same is delivered or delivery is refused. Either party hereto may change its
address to which said notice shall be delivered or mailed by giving written notice of such change
to the other party hereto, as herein provided.
42.08. LANDLORD'S LIABILITY. Landlord's obligations hereunder shall be binding
upon Landlord only for the period of time that Landlord is in ownership of the Building; and,
upon termination of that ownership, Tenant, except as to any obligations which have then due
and owing, shall look solely to Landlord's successor in interest in the Building for the
satisfaction of each and every obligation of Landlord hereunder. Landlord shall have no
personal liability under any of the terms, conditions or covenants of this Lease and Tenant shall
look solely to the equity of Landlord in the Building of which the Premises form a part for the
satisfaction of any claim, remedy or cause of action accruing to Tenant as a result of the breach
of any action of this Lease by Landlord. In addition to the foregoing, no recourse shall be had
for an obligation of Landlord hereunder, or for any claim based thereon or otherwise in respect
thereof, against any past, present or future trustee, shareholder, officer, director, agent or
employee of Landlord, whether by virtue of any statute or rule of law, or by the enforcement of
any assessment or penalty, or otherwise, all such other liability being expressly waived and
released by Tenant with respect to the above-named individuals and entities.
42.09. NO OFFER. The submission of the Lease by Landlord to Tenant for examination
does not constitute a reservation of or option for the Premises or of any other space within the
Building or in other buildings owned or managed by Landlord or its affiliates. This Lease shall
become effective as a Lease only upon the execution and legal delivery thereof by both parties
hereto.
42.10. GOVERNING LAW. This Lease shall be construed, governed and enforced in
accordance with the laws of the Commonwealth of Pennsylvania, without regard to principles
relating to conflicts of law.
42.11. TELEFAX SIGNATURES. The parties acknowledge and agree that
notwithstanding any law or presumption to the contrary a telefaxed signature of either party
whether upon this Lease or any related document shall be deemed valid and binding and
admissible by either party against the other as if same were an original ink signature.
42.12. CALCULATION OF TIME. In computing any period of time prescribed or
allowed by any provision of this Lease, the day of the act, event or default from which the
designated period of time begins to run shall not be included. The last day of the period so
computed shall be included, unless it is a Saturday, Sunday or a legal holiday, in which event the
period runs until the end of the next day which is not a Saturday, Sunday, or legal holiday.
Unless otherwise provided herein, all Notices and other periods expire as of 5:00 p.m. (local time
in Newtown Square, Pennsylvania) on the last day of the Notice or other period.
40
42,13. NO MERGER. There shall be no merger of this Lease or of the leasehold estate
hereby created with the fee estate in the Premises or any part thereof by reason of the fact that
the same person, firm, corporation, or other legal entity may acquire or hold, directly or
indirectly, this Lease of the leasehold estate and the fee estate in the Premises or any interest in
such fee estate, without the prior written consent of Landlord's mortgagee.
42.14. RECORDATION OF LEASE. Tenant shall not record this Lease without the
written consent of Landlord. Upon Landlord's request or with Landlord's written consent, the
parties agree to execute a short form of this Lease for recording purposes containing such terms
as Landlord believes appropriate or desirable, the expense thereof to be bonne by Tenant. If such
a short form of this Lease is recorded, upon the termination of this Lease, Tenant shall execute,
acknowledge, and deliver to Landlord an instrument in writing releasing and quitclaiming to
Landlord all right, title and interest of Tenant in. and to the Premises arising fiom this Lease or
otherwise, all without cost or expense to Landlord.
42.15. ACCORD AND SATISFACTION. No payment by Tenant or receipt by
Landlord of a lesser amount than any payment of Fixed Rent or Additional Rent herein stipulated
shall be deemed to be other than on account of the earliest stipulated Fixed Rent or Additional
Rent due and payable hereunder, nor shall any endorsement or statement or any check or any
letter accompanying any check or payment as Rent be deemed an accord and satisfaction.
Landlord may accept such check or payment without prejudice to Landlord's right to recover the
balance of such Rent or pursue any other right or remedy provided for in this Lease, at law or in
equity.
42.16. NO PARTNERSHIP. Landlord does not, in any way or for any purpose, become
a partner of Tenant in the conduct of its business, or otherwise, or joint venturer or a member of
a joint enterprise with Tenant. This Lease establishes a relationship solely of that of a landlord
and tenant.
42,17. INTENTIONALLY OMITTED
42.18. WAIVER OF TRIAL BY JURY. LANDLORD AND TENANT WAIVE THE
RIGHT TO A TRIAL BY JURY IN ANY ACTION OR PROCEEDING BASED UPON, OR
RELATED TO, THE SUBJECT MATTER OF THIS LEASE. THIS WAIVER IS
KNOWINGLY, INTENTIONALLY, AND VOLUNTARILY MADE BY TENANT AND
TENANT ACKNOWLEDGES THAT NEITHER LANDLORD NOR ANY PERSON ACTING
ON BEHALF OF LANDLORD HAS MADE ANY REPRESENTATIONS OF FACT TO
INDUCE THIS WAIVER OF TRIAL BY JURY OR IN ANY WAY TO MODIFY OR
NULLIFY ITS EFFECT. TENANT FURTHER ACKNOWLEDGES THAT IT HAS BEEN
REPRESENTED (OR HAS HAD THE OPPORTUNITY TO BE REPRESENTED) IN THE
SIGNING OF THIS LEASE AND IN THE MAKING OF THIS WAIVER BY INDEPENDENT
LEGAL COUNSEL, SELECTED OF ITS OWN FREE WILL, AND THAT IT HAS HAD THE
OPPORTUNITY TO DISCUSS THIS WAIVER WITH COUNSEL. TENANT FURTHER
ACKNOWLEDGES THAT IT HAS READ AND UNDERSTANDS THE MEANING AND
RAMIFICATION S OF THIS WAIVER PROVISION AND AS EVIDENCE OF SAME HAS
EXECUTED THIS LEASE.
41
42.19. CONSENT TO JURISDICTION. Tenant hereby consents to the exclusive
jurisdiction of the state courts located in Cumberland County and to the federal courts located in
the Middle District of Pennsylvania.
42.20. CONTINGENCY. This Lease is conditioned on and subject to Landlord's ability
to terminate the current lease with a third party tenant covering a portion on the Premises,
42
IN WITNESS WHEREOF, Landlord and Tenant have A-Yexecuted this Lease as of the
date first above written.
CAMP HILI,11,"Aff Y ASSOCIATES, LP
By:
HOMES GROUP, LLC
By:
Name
Title C'J'r-0
43
EXHIBIT A
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EXHIBIT C
Rules and Regulations
EXHIBIT C
Landlord reserves the right to rescind any of these rules and make such other and further rules
and regulations as in the judgment of Landlord shall from time to time be needed foi the safety,
protection, care and cleanliness of the Project, the operations thereof, the preservation of good order
therein and the protection and comfort of its tenants, their agents, employees and invitees, which rules
when made and notice thereof given to Tenant shall be binding upon him in a like manner as if originally
prescribed. Landlord will notify Tenant in writing of any changes to the Building Rules and Regulations.
1. Sidewalks, entrances, passages, elevators, vestibules, stairways, corridors, halls, lobby and any
other part of the Building shall not be obstructed or encumbered by any Tenant or used for any
purpose other than ingress or egress to and from each tenant's premises. Landlord shall have the
right to control and operate the common portions of the Building and exterior facilities furnished
for common use of the tenants (such as the eating, smoking, and parking areas) in such a manner
as Landlord deems appropriate.
2. No awnings or other projections shall be attached to the outside walls of the Building without the
prior written consent of Landlord. All drapes, or window blinds, must be of a quality, type and
design, color and attached in a manner approved by Landlord.
3. No showcases or other articles shall be put in front of or affixed to any part of the exterior of the
Building, or placed in hallways or vestibules without prior written consent of Landlord.
4. Rest rooms and other plumbing fixtures shall not be used for any purposes other than those for
which they were constructed and no debris, rubbish, rags or other substances shall be thrown
therein. Only standard toilet tissue may be flushed in commodes. All damage resulting from any
misuse of these fixtures shall be the responsibility of the Tenant who, or whose employees,
agents, visitors, clients, or licensees shall have caused same. Coffee grounds or other particles are
not meant to be disposed in toilets or drains.
5. No tenant, without the prior consent of Landlord, shall mark, paint, drill into, bore, cut or string
wires or in any way deface any part of the Premises or the Building of which they form a part
except for the reasonable hanging of decorative or instructional materials on the walls of the
Premises.
6. Tenants shall not construct or maintain, use or operate in any part of the project any electrical
device, wiring or other apparatus in connection with a loud speaker system or other
sound/communication system which may be heard outside the Premises. Any such
communication system to be installed within the Premises shall require prior written approval of
Landlord.
No mopeds, skateboards, scooters, roller blades or other vehicles and no animals, birds or other
pets of any kind shall be brought into or kept in or about the Building other than assistance
animals.
8. No tenant shall cause or permit any unusual or objectionable odors to be produced upon or
permeate from its premises.
9. No space in the Building shall be used for the manufacture of goods for sale in the ordinary
course of business, or for sale at auction of merchandise, goods or property of any kind.
10. No tenant, or employees of Tenant, shall make any unseemly or disturbing noises or disturb or
interfere with the occupants of this or neighboring buildings or residences by voice, musical
instrument, radio, talking machines, whistling, singing, or in any way. All passage through the
Building's hallways, -elevators, and main lobby shall be conducted in a quiet, business-like
manner.
11. No tenant shall throw anything out of the doors, windows, or down corridors or stairs of the
Building.
12. Tenant shall not place, install or operate on the Premises or in any part of the Project, any engine,
stove or machinery or conduct mechanical operations or cook thereon or therein (except for
coffee machine, microwave oven, and/or vending machine) without prior written consent of
Landlord.
13. No Smoking is prohibited within 25 feet of the building. No smoking is permitted in the rest
rooms, hallways, elevators, stairs, lobby, exit and entrances vestibules, sidewalks, parking lot
area. Smoking is prohibited at all entrances, including any dock areas, operative or non-operative
windows and near any air intakes of the building. All cigarette ashes and butts are to be deposited
in the containers provided for same, and not disposed of on sidewalks, parking lot areas, or toilets
within the Building rest rooms.
14. Tenants are not to install any additional locks or bolts of any kind upon any door or window of
the Building without prior written consent of Landlord. Each tenant must, upon the termination
of tenancy, return to the Landlord all keys for the Premises, either furnished to or otherwise
procured by such tenant, and all security access cards to the Building.
15. All doors to hallways and corridors shall be kept closed during business hours except as they may
be used for ingress or egress.
lb. Tenant shall not use the name of the Building, Landlord or Landlord's Agent in any way in
connection with his business except as the address thereof. Landlord shall also have the right to
prohibit any advertising by Tenant, which, in its sole opinion, tends to impair the reputation of the
Building or its desirability as a building for offices, and upon written notice from Landlord,
Tenant shall refrain from or discontinue such advertising.
17. Tenants must be responsible for all Security Access cards issued to them, and to secure the return
of same from any employee terminating employment with them. A $10.00 charge per card will
be assessed to tenant. Lost cards shall cost $35.00 per card to replace. No person/company other
than Building Tenants and/or their employees may have Security Access cards runless Landlord
grants prior written approval.
18, All deliveries by vendors, couriers, clients, employees or visitors to the Building which involve
the use of a hand cart, hand truck, or other heavy equipment or device must be made through the
dock area and then via the Freight Elevator. Tenant shall be responsible to Landlord for any loss
or damage resulting from any deliveries made by or for Tenant to the Building. Tenant shall
procure and deliver a certificate of insurance fiom Tenant's movers which certificate shall name
Landlord as an additional insured.
19. Landlord reserves the right to inspect all freight to be brought into the Building, and to exclude
from the Building all freight or other material which violates any of these rules and regulations.
20. Tenant will refer all contractors, contractor's representatives and installation technicians,
rendering any service on or to the premises for Tenant, to Landlord for Landlord's approval and
supervision before performance of any contractual service or access to Building. This provision
shall apply to all work performed in the Building including installation of telephones, telegraph
equipment, electrical devices and attachments and hnstallations of any nature affecting floors,
walls, woodwork, trim, windows, ceilings, equipment or any other physical portion of the
Building. Landlord reserves right to require that all agents of contractors/vendors sign in and out
of the Building if applicable.
21. Landlord reserves the right to exclude from the Building at all times any person who is not known
or does not properly identify himself to Landlord's management staff.
22. Landlord may require, at its sole option, all persons entering the Building after 6 PM or before 7
AM, Monday through Friday and at any time on Holidays, Saturdays and Sundays, to make prior
arrangements with Property Management to enter building.
23. No space within the Building, or in the common areas such as the parking lot, may be used at any
time for the purpose of lodging, sleeping, or for any immoral or illegal purposes.
24. No employees or invitees of Tenant shall use the hallways, stairs; lobby, or other common areas
of the Building as lounging areas during "breaks" or during lunch periods.
25. No canvassing, soliciting or peddling is permitted in the Building or its common areas by tenants,
their employees, or other persons.
26. No mats, trash, or other objects shall be placed in the public corridors, hallways, stairs, or other
common areas of the Building.
27. Tenant must place all recyclable items of cans, bottles, plastic and office recyclable paper in
appropriate containers in each tenant's space. Removal of these recyclable items will be by
Landlord's janitorial personnel.
28. Landlord does not maintain suite finishes which are non-standard, such as kitchens, bathrooms,
wallpaper, special lights, etc. However, should the need arise for repair of items not maintained
by Landlord, Landlord at its sole option, may arrange for the work to be done at Tenant's
expense-. Landlord shall charge tenant for such services at Landlord's standard rate (such rate to
be competitive with the market rate for such services) this would include the costs of replacement
parts, labor, supplies and an administrative fee for contracted services. "repairs" shall include
replacements and renewals when necessary.
29. Drapes installed by Tenant, which are visible from the exterior of the Building, must be cleaned
by Tenant, at its own expense, at least once a year.
30. No pictures, signage, advertising, decals, banners, etc. are permitted to be placed in or on
windows in such a manner as they are visible from the exterior, without the prior written consent
of Landlord.
31. Tenant or Tenant's employees are prohibited at any time from eating or drinking in hallways,
elevators, rest rooms, lobby or lobby vestibules.
32. Tenant shall be responsible to Landlord for any acts of vandalism performed in the Building by
its employees, agents, invitees or visitors.
33. No tenant shall permit the visit to its Premises of persons in such numbers or corder such
conditions as to interfere with the use and enjoyment of the entrances, hallways, elevators, lobby
or other public portions or facilities of the Building and exterior common areas by other tenants.
34. Landlord's employees shall not perform any work or do anything outside of their regular duties
unless under special instructions from Landlord. Requests for such requirements must be
submitted in writing to Landlord.
35. Tenant agrees that neither Tenant nor its agents, employees, licensees or invitees will interfere in
any manner with the installation and/or maintenance of the heating, air conditioning and
ventilation facilities and equipment.
36. Landlord will not be responsible for lost or stolen personal property, equipment, money or
jewelry from Tenant's area or common areas of the Project regardless of whether such loss occurs
when area is locked against entry or not.
37. Landlord will not permit entrance to Tenant's Premises by use of pass key controlled by
Landlord, to any person at any time without written permission of Tenant, except employees,
contractors or service personnel supervised or employed by Landlord.
38. Tenant and its agents, employees and invitees shall observe and comply with the driving and
parking signs and markers on the Building grounds and surrounding areas.
39. Tenant and its employees, invitees, agents, etc. shall not enter other separate tenants' hallways,
restrooms or premises unless they have received prior approval from Landlord's management.
40. Tenant shall not use or permit the use of any portion of the Premises for outdoor storage.
41. Tenant shall not overload any floor in the Premises or the Building, including any public
corridors or elevators therein, bringing in, placing, storing, installing or removing any large or
heavy articles, and Landlord may prohibit, or may direct and control the location and size of,
safes and all other heavy articles, and may require, at Tenant's sole cost and expense,
supplementary supports of such material and dimensions as Landlord may deem necessary to
properly distribute the weight.
42. Tenant shall not commit or suffer any waste upon the Premises, Building or Project or any
nuisance, or do any other act or thing which may disturb the quiet enjoyment of any other
tenant in the Building or Project.
43. Tenant will be billed by landlord for general maintenance services such as plumbing, minor
electrical, furniture moves, in-suite kitchen and bathroom repairs, in-suite tenant services, bulb
replacements, and HVAC services for which may not be covered by the landlord in the lease
for the tenant. However, should the need arise for repair of items not maintained by Landlord,
Landlord at its sole option, may arrange for the work to be done at Tenant's expense. Landlord
shall charge tenant for such services at Landlord's standard rate (such rate to be competitive
with the market rate for such services) this would include the costs of replacement parts, labor,
supplies and an administrative fee for such contracted services. "repairs" shall include
replacements and renewals when necessary.
M3nimuni 3 hour charge for emergency and after hour calls will apply at the landlord's
standard market rate,
Camp Hill Realty Associates, LP offers Conference room facilities located at building 300
Corporate Center Drive. Tenants may reserve the conference room center for meetings,
luncheons and business activities - they will be charge the current market daily rental, The
conference center must be reserved through the Property Management office at 150 Corporate
Center Drive, Suite 106, Camp Hill, Pa. 761-1444.
Qi
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METTE9 EVANS & WOODSIDE
A PROFESSIONAL CORPORATION
ATTORNEYS AT LAW
3401 NORTH FRONT STREET
HOWELL C. METTE MARY ALICE BUSBY P.O. BOX 5950 MARK D. HIPP
ROBERT MOORE KATHRYN L. SIMPSON HARMSEURG, PA 17110-0950 RONALD L. FINICK
CHARLES B. ZWALLY THOMAS F. SMIDA RANDALL G. HURST*
PETER J. RESSLER PAULA J. LEICHT IRS NO. MELISSA L. VAN ECK
JAMES A. ULSH TIMOTHY A. BOY 23-1985005 HEATHER Z. KELLY
JEFFREY A. ERNICO HENRY W. VAN ECK AARON T. DOMOTO
TELEPHONE FACSIMILE
(717) 232-5000 (717) 236-1816
Toim FREE: 1-800-962.5097
HTTP;//W W W.METTE.COM
July 11, 2011
JAMES W. EVANS
1426-2008
* MARYLAND BAR
Excel Homes Group, LLC CERTIFIED MAIL RETURN RECEIPT
300 Corporate Center Drive, Suite 602
Camp Hill, PA 17011-1770
Re: Camp Hill Realty Associates, LP/Excel Homes Group, LLC - Lease
Agreement
Dear Excel Homes Group, LLC:
I am writing this letter as a follow up to the voice mail message I left for Brent C. Werner
on Thursday, July 7, 2011. Please be advised that this law firm has been retained by Camp Hill
Realty Associates, LP ("CHRA") to represent its interests with respect to Suite 602 in CHRA's
building located at 300 Corporate Center Drive, Camp Hill, PA (the "Building"). I understand
that Excel Homes Group, LLC ("Excel") has been occupying Suite 602 pursuant to a Lease
Agreement dated May 1, 2010. As you know, Excel's lease term expired on March 31, 2011.
I understand that Excel has been in negotiations with CHRA's property management
company, Carrow Real Estate Services, LLC pursuant to which Excel may be leasing other space
in the Building from CHRA. I further understand that Brent C. Werner has been acting as the
primary contact for Excel in that regard. For that reason, I am copying Mr. Werner on this letter.
As Excel is likely aware, a former tenant of the Building recently vacated approximately
31,000 square feet. Another existing tenant of CHRA's Building, Deloitte and Touch
("Deloitte") has preliminarily agreed to rent the 31,000 square feet recently vacated as well as
Suite 602. As Excel is likely aware, Deloitte currently occupies all other space on the 6th Floor
of the Building surrounding Suite 602. Given the proximity of Suite 602 to Deloitte's existing
or -rations, Deloitte has indicated to CHRA that its agreement to continue renting its existing
space in the building, as well as its agreement to take the additional 36,000 square feet
reverenced above is contingent upon Deloitte's receipt of Suite 602.
The primary purpose of this letter is to put Excel on notice of the importance of CHRA
receiving possession of Suite 602 as soon as possible. While CHRA has not taken steps to
July 8, 2011
Page 2
enforce its right to possession since the expiration of Excel's Lease on March 31, 2011, Excel
must understand that CHRA cannot acquiesce in Excel's continued possession indefinitely.
CHRA is committed to working with Excel to accommodate Excel in its transition to other space
in the Building or, if Excel chooses, to go elsewhere. However, in light of the foregoing, it is
absolutely imperative that CHRA receive assurances from Excel that Excel will vacate Suite 602
no later than September 1, 2011.
I understand that a number of proposals and counterproposals between CHRA's property
management company and Excel have been exchanged. To date, however, these negotiations
have not yet evolved into an agreement. While CHRA is committed to continuing to work with
Excel and is hopeful that a new Lease Agreement can be worked out between CHRA and Excel
for other space in the Building, the pace of the negotiations is giving Carrow Real Estate
Services, agent for CHRA, cause for concern. CHRA must be in a position to accommodate its
obligations to Deloitte no later than September 1, 2011.
Finally, while CHRA's immediate concern is receiving assurances from Excel that Excel
will be in a position to vacate Suite 602 on or before September 1, 2011, I understand that Excel
ceased paying CHRA rent for the period beginning April 1, 2011 until present. While the sums
due to CHRA are presently of secondary importance to CHRA, CHRA intends to reserve its right
to collect any funds due and owing to CHRA by Excel under the terms of the May 1, 2010 Lease
Agreement or Pennsylvania law.
Once you have had an opportunity to consider the issues raised in this letter, please
contact me to discuss your surrender of Suite 602. I would appreciate hearing from you no later
than ten (10) days from the date of this letter.
Very truly yours,
METTE, EVANS & WOODSIDE
t CjZ?,Vu :
Ronald L. Finck
RLF:njc
cc: Brent C. Werner (via fax and e-mail)
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1. Article Addressed to:
Excel Homes_Group, LLC
300 C?:rporate Center Drive
Suite 602
H411 PA 17011-1770
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METTE, EVANS & WOODSME
A PROFESSIONAL CORPORATION
ATTORNEYS AT LAW
3401 NORTH FRONT STREET
HOWELL C. METTE MARY ALICE BUSBY P.O. BOX 5950 MARK D. HIPP JAMES W. EVANS
ROBERT MOORE KATHRYN L SIIMPSON HABBSSBTJRG3 PA 17110-0950 RONALD L. FINCK 1926 - 2008
CHARLES B. ZWALLY THOMAS F. SMIDA RANDALL G. BURST"
PETER J. RESSLER PAULA L LEICHT IRS NO. MELISSA L VAN ECK
JAMES A. ULSH TIMOTHY A. BOY 23-1985005 HEATHER Z. KELLY ` MARYLAND BAR
JEFFREY A. ERNICO THOMAS A. ARCHER AARON T. DOMOTO
HENRY W. VAN ECK TELEPHONE FACSIMILE
(717) 232-5000 (717) 238-1816
TOia. FA=: 1-800-982-5091
HTTPd/W W W.METTF..COM
December 8, 2011
15363-1
Excel Homes Group, LLC VIA CERTIFIED MAIL RETURN
Attn: Brent C. Werner RECEIPT REQUESTED; REGULAR
300 Corporate Center Drive, Suite 602 MAIL; HAND DELIVERY; and
Camp Hill, PA 17011 EMAIL at Brent.Werner@ibsinc.us.com
Re: Camp Hill Realty Associates, LP/Excel Homes Group, LLC - Lease
Agreement
Dear Mr. Werner:
As you know, I represent your landlord, Camp Hill Realty Associates, LP in matters
relating to Excel Homes Group, LLC's Lease Agreement dated May 1, 2010 for space in the
building located at 300 Corporate Center Drive, Camp Hill, Pennsylvania. As you also know,
Excel Homes Group, LLC's Lease Agreement expired at 11:59 p.m. on March 31, 2011. I
understand that negotiations for Excel Homes Group, LLC's continued tenancy at the 300
Corporate Center Drive building have ceased. Accordingly, Camp Hill Realty Associates, LP
has instructed me to make arrangements for Excel Homes Group, LLC's vacation/removal from
the premises and to recover the outstanding amounts due and owing under the terms of the Lease
Agreement. To that end, a Notice to Quit is enclosed.
Pursuant to paragraph 1.03 of the Lease Agreement, Excel Homes Group, LLC's per
diem rental payment is $790.39. Camp Hill Realty Associates, LP acknowledges receipt of
monthly payments in the amount of $7,913.33 for the months April through November, 2011.
Those monthly payments have been applied to your outstanding balance. Accordingly, if Excel
Homes Group, LLC vacates the premises on December 31, 2011, the remaining amount due
pursuant to paragraph 1.03 of the Lease Agreement will be $133.442.11. If Excel Homes Group,
LLC vacates sooner than December 31, 2011, you may subtract $790.39 for each day prior to
December 31, 2011. If Excel Homes Group, LLC vacates after December 31, 2011, you will
need to add $790.39 for each day of occupancy after that date. You should not construe this
provision as an indefinite extension of your time to vacate. I have been instructed to commence
with eviction proceedings 30 days from the date of this letter, if necessary.
December 7, 2011
Page 2
In addition to the amounts due pursuant to paragraph 1.03, Excel Homes Group, LLC
agreed to pay liquidated damages pursuant to paragraph 22.02. According to my calculations, as
of December 31, 2011, the amount due pursuant to paragraph 22.02 will be $126,613.28 in
addition to the $133.442.11 referenced above.
Please consider this letter, and the enclosed Notice to Quit, Camp Hill Realty Associates,
LP's formal demand for Excel Homes Group, LLC to vacate the premises at 300 Corporate
Center Drive and to make payment for outstanding amounts due as set forth above.
Your prompt attention to this matter is appreciated.
Very truly yours,
METTE, EVANS & WOODSIDE
Ronald L. Finck
RLF:jas
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FOURTH AMENDMENT TO FULL SERVICE LEASE
This Fourth Amendment to Full Service Lease (this "Amendment") is made and entered into as of
the day of )rW2011 (the "Execution Date"), by and between CAMP HILL REALTY
ASSOCIATES, LP, a limited partnership having all address for the receipt of snail c% Carrow Real Estate
Services, LLC., Suite 304, 99 Washington Avenue, Albany, New York 12260 ("Landlord" or "Lessor"),
successor in interest to Brandywine Central, L.P. (the "Predecessor Landlord") and DELOITTE LLP
(formerly known as Deloitte & Touche USA LLP), a Delaware limited liability partnership having an
office at 10 Westport Road, Wilton, Connecticut 06897 (hereinafter referred to as "Tenant");
WHEREAS, Landlord leases to Tenant certain premises as follows: (i) Suite No. 100, which is
approximately 6,304 rentable square feet ("RSF") of space on the first (I') floor of the building located at
300 Corporate Center Drive, Camp Hill, Pennsylvania (the "Building"), (ii) Suite No. 300 which is
approximately 14,008 RSF of space on the third (3`d) floor of the Building, (iii) Suite No. 400 which is
approximately 31,726 RSF of space on the fourth (41h) floor of the Building and (iv) Suite No. 600 which
is approximately 9,536 RSF of space on the sixth (6'h) floor of the Building (collectively, the "Original
Premises") consisting of 61,574 RSF of space in the Building, pursuant to that certain Pennsylvania Full
Service Lease dated August 2, 2006 (tile "Original Lease");
WHEREAS, the Original Lease was modified and amended by the terms of that certain First
Amendment to Full Service Lease dated March 25, 2009 between the Landlord and tine Tenant (the "First
Amendment") and pursuant to the terms of the First Amendment, the Original Premises were increased to
include 10,960 RSF on -the sixtli (ey-floor '6f the Biiilding'so- tliat" tlie, total premises leased *by f6e
Landlord to the Tenant pursuant to the terms of the Original Lease as modified and amended by the First
Amendment was 72,534 RSF (the "3/25/09 Premises");
WHEREAS, the Original Lease was further modified and amended by the terms of that certain
Second Amendment to Full Service Lease dated June 25, 2010 between the Landlord and the Tenant (the
"Second Amendment") and pursuant to the terms of the Second Amendment, the 3/25/09 Premises were
increased to include 17,718 RSF on the third (3`d) floor of the Building so that the total premises leased by
the Landlord to the Tenant pursuant to the terms of the Original Lease as modified and amended by the
First Amendment and Second Amendment was 90,252 RSF (the "6/25/10 Premises");
WHEREAS, the Original Lease was further modified and amended by the terms of that certain
Third Amendment to Full Service Lease dated December ' 2010' between the Landlord and the
Tenant (the "Third Amendment"). The Original Lease as modified and amended by the Fist
Amendment, the Second Amendment and Third Amendment is sometimes referred to herein as the
"Existing Lease". Pursuant to the terms of the Third Amendment, the 6/25/10 Premises were increased to
include 4,970 RSF on the sixth (6'") floor of the Building so that the total premises leased by the Landlord
to the Tenant pursuant to the terms of the Existing Lease is 95,222 RSF (the "Existing Premises"). The
Existing Lease, as modified and amended hereby, is sometimes referred to herein as the "Lease" and the
Existing Premises as modified and amended hereby is sometimes referred to herein as the "Premises";
WHEREAS, tine Tenant desires to modify and amend the terms of the Existing Lease so that as of
the Suite 500 Commencement Date (as hereinafter defined) the Premises leased by the Tenant from the
Landlord under the Existing Lease shall include the 31,330 RSF of space on the fifth (5`4) floor of the
Building currenntly designated as Suite 500 (the "Suite 500 Premises") and as of the Suite 602
I The date on the original Third Amendment to Full Service Lease was left Incomplete as indicate in the text herein.
Fourth Amendment v 12CL
Commencement Date (as hereinafter defined) the Premises leased by the Tenant from the Landlord tinder
the Existing Lease shall include the 5,023 RSF of space on the sixth (6'") floor of the Building currently
designated as Suite 602 (the "Suite 602 Premises") so that the premises leased by the Tenant fiom the
Landlord pursuant to the terms of the Lease shall constitute and be 131,575 RSF in the aggregate;
WHEREAS, Landlord and Tenant desire to amend the Existing Lease in the manner as set forth
herein:
NOW THEREFORE, in consideration of these presents and the agreement of each other,
Landlord and Tenant intending to be legally bound agree that the Existing Lease shall be and the same is
hereby amended as follows:
I. Incorporation of Recitals. The recitals set forth above, the Existing Lease referred to therein and
the exhibits attached hereto, if any, are hereby incorporated herein by reference as if set forth in full in the
body of this Amendment. Any capitalized terms not herein defined shall have the meanings ascribed to
them in the Existing Lease.
2. Lease of the Suite 500 Premises and the Suite 602 Premises.
(a) The Existing Lease is hereby amended to provide that effective as of the date oil which
the Suite 500 Premises is delivered to Tenant in the condition required hereby, vacant and free of all
tenancies, subject to the remaining terms and conditions herein (the "Suite 500 Commencement Date")
the Landlord hereby demises and lets unto Tenant, and Tenant hereby leases and hires from Landlord, the
Suite 500 Premises -as shown oil Ezhiliit "A" attached hereto aril made a port liereof. The Wim'of the
Lease for the Suite 500 Premises shall commence on the Suite 500 Commencement Date and terminate on
December 31, 2016, unless the Tenant exercises its Lease renewal rights in accordance with and subject
to Article 34 of the Lease, in which event the Term shall expire at the end of the Renewal Term, subject
to earlier termination in accordance with the terms and provisions of the Lease. The "Suite 500 Rent
Commencement Date" shall be the date occurring fourteen (14) months (assuming a 30 day month)
following the Suite 500 Commencement Date, subject to the additional rent abatements herein contained.
It is the mutual intention of Landlord and Tenant that the Suite 500 Premises shall be leased to and
occupied by Tenant on and subject to all the terms, covenants and conditions of the Lease except as
otherwise expressly provided to the contrary in this Amendment, and to that end Landlord and Tenant
hereby agree that (unless the context clearly otherwise requires) from and after the Suite 500
Commencement Date, the word "Premises", as defined in the Lease, shall mean and include the Existing
Premises and the Suite 500 Premises, collectively containing a total of 126,552 RSF.
(b) Landlord shall deliver possession of the Suite 500 Premises to Tenant on or before thirty
(30) days following the Execution Date. If possession of the Suite 500 Premises is not delivered to
Tenant on or before December 1, 2011, then the Suite 500 Rent Commencement Date shall be delayed
one day for each day after December 1, 2011 until possession of the Suite 500 Premises is delivered to
Tenant. If the Suite 500 Premises is not delivered to Tenant on or before January 1, 2012, the Suite 500
Rent Commencement Date shall be delayed an additional two days for each day after January 1, 2012
until possession of the Suite 500 Premises is delivered to Tenant. If the Suite 500 Premises is not
delivered to Tenant on or before April 1, 2012, Tenant may terminate the Lease upon notice to Landlord.
(c) The Existing Lease is hereby amended to provide that effective as of the date on which
tine Suite 602 Premises is delivered to Tenant in the condition required hereby, vacant and free of all
tenancies, subject to the remaining terms and conditions herein (the "Suite 602 Commencement Date")
the Landlord hereby demises and lets unto Tenant, and Tenant hereby leases and hires from Landlord, the
Suite 602 Premises as shown on Exhibit "A" attached hereto and made a part hereof. The term of the
Fourth Amendment v 12CL
Lease for the Suite 602 Premises shall commence on the Suite 602 Commencement Date and terminate on
December 31, 2016, unless the Tenant exercises its Lease renewal rights in accordance with and subject
to Article 34 of the Lease, in which event the Term shall expire at the end of the Renewal Term, subject
to earlier termination in accordance with the terms and provisions of the Lease. The "Suite 602 Rent
Commencement Date" shall be the date occurring fourteen (I4) months (assuming a 30 day month)
following the Suite 602 Commencement Date, subject to the additional rent abatements herein contained.
It is the mutual intention of Landlord and Tenant that the Suite 602 Premises shall be leased to and
occupied by Tenant on and subject to all the terms, covenants and conditions of the Lease except as
othenvise expressly provided to the contrary in this Amendment, and to that end Landlord and Tenant
hereby agree that (unless the context clearly otherwise requires) from and after the Suite 500
Commencement Date and the Suite 602 Commencement Date, the word "Premises", as defined in the
Lease, shall mean and include the Existing Premises, the Suite 500 Premises, the Suite 602 Premises,
collectively containing a total of 131,575 RSF.
(d) Landlord shall deliver possession of the Suite 602 Premises to Tenant on or before
December 1, 2011. If possession of the Suite 602 Premises is not delivered to Tenant on or before
January 1, 2012, then the Suite 602 Rent Commencement Date shall be delayed one day for each day after
January 1, 2012 until possession of the Suite 602 Premises is delivered to Tenant. If possession of the
Suite 602 Premises is not delivered to Tenant on or before February 1, 2012, the Suite 602 Rent
Commencement Date shall be delayed an additional two days for each day after February 1, 2012 until
possession of the Suite 602 Premises is delivered to Tenant. If the Suite 602 Premises is not delivered to
Tenant on or before May 1, 2012, Tenant may terminate the Lease upon notice to Landlord.
............................
(e ie rime 5 Pre ises ait tie'Surte 602"Premises'slialT a takeii'in-"AS IS" coiiditioii
by Tenant, provided, however, that Landlord represents to Tenant that to Landlord's knowledge, Landlord
has not received any current notice of violation for the Suite 500 Premises or the Suite 602 Premises fiom
any governmental authority (individually and collectively a "Violation") and, to the extent that any such
Violation exists on the Suite 500 Commencement Date or the Suite 602 Commencement Date, Landlord
shall, at its expense, remedy such Violation.
In lieu of a improvement allowance, the Landlord shall provide to Tenant those rent adjustments
as detailed in Section 4(a) and 4(b) herein.
3. Term. The Lease Term for the Suite 500 Premises shall commence on the Suite 500
Commencement Date and terminate, unless earlier terminated as set forth in the Lease, on December 31,
2016, subject to any renewal option(s) which may be exercised by Tenant pursuant to the Lease. The
Lease Term for the Suite 602 Premises shunt commence on the Suite 602 Commencement Date and
terminate, unless earlier terminated as set forth in the Lease, on December 31, 2016, subject to any
renewal option(s) which may be exercised by Tenant pursuant to the Lease.
Sections 3(b) and 3(c) of the Lease shall be and are hereby amended as follows:
(a) with respect to the termination or surrender fee to be due and payable by the Tenant, if
any, with respect to the Suite 500 Premises said sums shall include the unatnortized portion of the
Deemed Tenant Improvement Costs as of the effective date of the surrender or termination, as the case
may be. For purposes of this subsection (a), the Deemed Tenant Improvement Costs applicable to the
Suite 500 Premises shall mean: (i) if the effective date of Tenant's termination is within the initial four
months of the lease term with respect to the Suite 500 Premises, an amount equal to $0; (ii) if the
effective date of Tenant's termination is after the initial four months of the lease term with respect to the
Suite 500 Premises, but before the Suite 500 Rent Commencement Date, an amount equal to the product
Fourth Amendment v 12CL
of (x) the number of months from the four month anniversary of the Suite 500 Commencement Date to
the effective date. of the termination, and (y) $46,995.00; or (iii) if the effective date of Tenant's
termination is on or after the Suite 500 Rent Commencement Date, an amount equal to $469,950.00; and
(b) with respect to the termination or surrender fee to be due and payable by the Tenant, if
any, with respect to the Suite 602 Premises said sums shall include the unamortized portion of the
Deemed Tenant Improvement Costs as of the effective date of the surrender or termination, as the case
may be. For purposes of this subsection (b), the Deemed Tenant Improvement Costs applicable to the
Suite 602 Premises shall mean: (i) if the effective date of Tenant's termination is within the initial four
months of the lease term with respect to the Suite 602 Premises, an amount equal to $0; (ii) if the
effective date of Tenant's termination is after the initial four months of the lease term with respect to the
Suite 602 Premises, but before the Suite 602 Rent Commencement Date, an amount equal to the product
of (x) the number of months from the four month anniversary of the Suite 602 Commencement Date to
the effective date of the termination, and (y) ) $7,534.50; or (iii) if the effective date of Tenant's
termination is-on or-after- the Suite 602-RenYCoiiimencement'Date-ari amount egttal'to'$75;345:00:.'.... "
(t) with respect to the total termination or surrender fee to be due and payable by the Tenant,
if any, same shall be computed against the unamortized costs of the Landlord's Work to the extent
actually paid by the Landlord, the unamortized brokerage commissions actually paid by the Landlord,
and/or the unamortized portion of the Deemed Tenant Improvement Cost for that portion of the Demised
Premises being_surrendered,......._...
4. Fixed Rent.
(a) From and after the Suite 500 Commencement Date, in addition to the Fixed Rent due
under the terms of the Existing Lease for that portion of the Premises not including the Suite 500
Premises, Tenant shall pay Landlord Fixed Rent for the Suite 500 Premises (31,330 RSF) as follows:
TIME PER MONTHLY ANNUAL
PERIOD RSF INSTALLMENT BASE RENT
Suite 500 Commencement $0.00 $0.00 $0.00
Date until the Suite 500 Rent
Commencement Date
The Suite 500 Rent $18.50 $48,300.42 $579,605.00
Commencement Date
through December 31, 2013
January 1, 2014 $19.00 $49,605.83 $595,270.00
through December 31, 2014
January 1,2015 $19.50 $50,911.25 $610,935.00
through December 31, 2015
January 1, 2016 $20.00 $52,216.67 $626,600.00
through December 31, 2016
Fourth Amendment v 12CL
(b) From and after the Suite 602 Commencement Date, in addition to the Fixed Rent due
under the terms of the Existing Lease for that portion of the Premises not including the Suite 500
Premises and the Suite 602 Premises, Tenant shall pay Landlord Fixed Rent for the Suite 602 Premises
(5,023 RSF) as follows:
TIME PER
PERIOD RSF
MONTHLY ANNUAL
INSTALLMENT BASE RENT
Suite 602 Commencement $0.00
Date until the Suite 602 Rent
Commencement Date
The Suite 602 Rent $18.50
Commencement Date
through December 31, 2013
.......................................
January 1, 2014 $19.00
through December 31, 2014
$0.00 $0.00
$7,743.79 $92,925.50
$7,953.08 $95,437.00
January 1, 2015 $19.50 $8,162.38 $97,948.50
through December 31, 2015
January 1, 2016 $20.00 $8,371.67 $100,460.00
through December 31, 2016
(c) During the Renewal Term, the Annual Base Rent for the Suite 500 Premises and the Suite
602 Premises, respectively, shall be an amount equal to the Fair Market Rent as defined in and
determined in accordance with Section 34 of the Existing Lease, with respect to the Suite 500 Premises,
per RSF multiplied by 31,330 and with respect to the Suite 602 Premises, per RSF multiplied by 5,023,
and the respective Monthly Installments of Fixed Rent shall be equal to the respective Annual Base Rent
for such period divided by 12.
(d) Notwithstanding anything to the contrary set forth elsewhere in this Amendment or the
Existing Lease, the monthly installment of Fixed Rent payable by the Tenant with respect to the Suite 500
Premises and the Suite 602 Premises shall be payable by Tenant to Landlord in addition to (i) all monthly
installments of Fixed Rent required to be paid by Tenant to Landlord with respect to all portions of the
Premises, excluding the Suite 500 Premises and the Suite 602 Premises, and (ii) all payments of
Additional Rent required to be paid by Tenant to Landlord pursuant to the Lease.
(e) Notwithstanding anything contained in this Amendment or in the Lease to the contrary,
all Rent shall be payable in advance, on the first business day of each calendar month during the Term by
check made payable to Landlord and delivered to Landlord at PO Box 70846, Philadelphia, Pennsylvania
19176. In lieu thereof, Tenant shall have the right to wire transfer any rental amount to Landlord in
accordance with wiring instructions which shall be provided by Landlord to Tenant upon Tenant's
request.
5. Tenant's Allocated Share.
Fourth Amendment v 12CL
Paragraph 1(h) of the Lease shall be amended in part to read as follows upon the occurrence of
the following events:
`Tenant's Allocated Share':
(i) . if both the Suite 500 Commencement Date and the Suite 602 Commencement
Date have occurred: 'Tenant's Allocated Share': 75.071/o
(ii) if only the Suite 602 Commencement Date has occurred: `Tenant's Allocated
Share': 57.19%
(iii) if only the Suite 500 Commencement Date has occurred: `Tenant's Allocated
Share': 72.2%
The Base Year shall remain 2007 in connection with the Existing Premises, however, as
to the Suite 602 Premises and Suite 500 Premises, the'Base Year' shall be "2012
...................................................
.... ......... ................. ............................... ..... ........ ....... ............. ...................... ........... .... .... .............. ........ ..... ..... .............. ........ ..................
6. Rentable Area. Paragraph 1(i) of the Lease shall be amended in its entirety to read as follows
upon the occurrence of the following events:
'Rentable Area':
Premises:
(i) if both the Suite 500 Commencement Date and the Suite 602 Commencement
Date have occurred: 131,575 ft
(ii) if only the Suite 602 Commencement Date has occurred: 100,245 ft
(iii) if only the Suite 500 Commencement Date has occurred: 126,552 ft
However the square footage of the Building shall remain 175,280."
Representations.
(a) Landlord and Tenant hereby confirm that Tenant's security deposit is $0.00.
(b) Landlord hereby represents to Tenant that (i) all consents to this Amendment required to
be obtained from the holder of any mortgage encumbering the Project (the "Mortgagee") will be
requested by the Landlord front (lie Mortgagee i nrnedialely following the Execution Date, and (ii)
Landlord is not aware of any fact or circumstance that would form the basis for the Mortgagee's failure to
grant any consent to this Amendment required to be obtained from the Mortgagee. This Amendment is
subject to and the effectiveness thereof is conditioned upon the Landlord's receipt of the consent of the
Mortgagee to this Amendment and either (i) the Mortgagee's written confirmation that the existing
Subordination, Non-Disturbance and Attornment Agreement between the Mortgagee and Tenant shall
apply to the Existing Lease, as amended by this Amendment, or (ii) the Mortgagee's execution and
delivery of a Subordination, Non-Disturbance and Attornment Agreement, in a form reasonably
acceptable to the Tenant, with respect to the Existing Lease, as amended by this Amendment, both on or
before the sixtieth day following the Execution Date. Landlord shall furnish Tenant with a copy of such
consent and confirmation upon Landlord's receipt thereof.
Fourth Amcndmcnt v 12CL
A
0
8. Brokerage Commission. Landlord and Tenant mutually represent and warrant to each other that
they have not dealt, and will not deal, with any real estate broker or sales representative in connection
with the entry into and execution of this Amendment other than with Carrow Real Estate Services PA,
LLC (the `Broker") as Broker in connection with the entry into and execution of this Amendment. Each
party agrees to indemnify, defend and hold harmless the other and its directors, officers and employees
from and against all threatened or asserted claims, liabilities, costs and damages (including reasonable
attorney's fees and disbursements) which may occur as a result of a breach of its representations in this
paragraph. Landlord agrees to pay any commission owed to the Broker pursuant to separate agreement.
9. Binding Effect. Except as expressly amended hereby, the Lease remains in fill force and effect
hi accordance with its terms.
<Signatures on next page>
Fourth Amendment v 12CL
A
to
IN WITNESS WI-IERICOF, Landlord and Tenant have duly executed this Amendment as of the date
first above written.
CAMP HILL REAL
Witness:
By:
Its:
TES, LP
Name: as coL text, l
Title:
_ ......................_...._............................. ......... -......... .... ................_ ......................... ..... ......... ..... ........... ........... ....... ....................................................
DELOITTE LLP
tness:
By: e ? ? //, lle-
........... _ . . . Title: . .......... 1ner ..... _.......... _........ .... --.-..........._....... Fourth Amondmcnl v 120L
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EXHIBIT "A"
Collectively, 36,353 rentable square feet ("RSF") of space located as follows in the building known as
300 Corporate Center Drive, Camp Hill, Pennsylvania (the "Building") and further identified on the
attached Floor Plan for a portion of the fifth (5th) and sixth (616) floors of the Building: 31,330 RSF of
space on the fifth (5th) floor of the Building currently designated as Suite 500 and the 5,023 RSF of space
on the sixth (6`6) floor of the Building currently designated as Suite 602
F-Mvpdata12556.01ACarrow - DeloitteTinalWourdi Amendment MORLdoe
Fourth Amendment v 12CL
M
CERTIFICATE OF SERVICE
I certify that I am this day serving a copy of the foregoing document upon the person(s)
and in the manner indicated below, which service satisfies the requirements of the Pennsylvania
Rules of Civil Procedure, by depositing a copy of same in the United States Mail, with first-class
postage, prepaid, addressed as follows:
Kimberly M. Colonna, Esquire
McNees Wallace & Nurick LLC
100 Pine Street
P.O. Box 1166
Harrisburg, PA 17108-1166
Attorney for Defendant
METTE, EVANS & WOODSIDE
By: 9."? ?. 4?'.?..k
Ronald L. Finck
Date: April 24, 2012
Sup. Ct. I.D. No. PA 89985
3401 North Front Street
P.O. Box 5950
Harrisburg, PA 17110-0950
(717) 232-5000 - Phone
(717) 236-1816 - Facsimile
rlfinck0mette.com
Attorneys for Plaintiff r sv
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17
CAMP HILL REALTY ASSOCIATES
LP
Plaintiff,
V.
EXCEL HOMES GROUP, LLC
Defendant.
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY
NO. 12-152 Civil Term
NOTICE TO PLEAD
TO: CAMP HILL REALTY ASSOCIATES LP
You are hereby notified to file a written response to the enclosed New Matter within
twenty (20) days from service hereof or a judgment may be entered against you.
McNEES WALLACE & NURICK LLC
By. Ki rl . Colonna
PA #80362
100 Pine Street, P.O. Box 1166
Harrisburg, PA 17108
(717) 232-8000
Attorneys for Defendant
Excel Homes Group, LLC
Dated: May 14, 2012
f?
L
Kimberly M. Colonna, PA #80362
McNees Wallace & Nurick LLC
100 Pine Street, P.O. Box 1166
Harrisburg, PA 17108-1166
Tel. 717-232-8000
Fax. 717-237-5300
kcolonna@mwn.com
CAMP HILL REALTY ASSOCIATES IN THE COURT OF COMMON PLEAS
LP CUMBERLAND COUNTY
Plaintiff,
V.
NO. 12-152 CT
EXCEL HOMES GROUP, LLC
Defendant.
ANSWER TO AMENDED COMPLAINT AND NEW MATTER
Defendant Excel Homes Group, LLC ("Excel"), by and through its attorneys McNees
Wallace & Nurick, LLC, files this Amended Answer with New Matter to the Complaint filed by
Plaintiff Camp Hill Realty Associates:
PARTIES
1. CHRA is a Delaware Limited Partnership authorized to transact business in
Pennsylvania as a foreign business corporation.
ANSWER: Admitted upon information and belief.
1
2. Excel is a Delaware Limited Liability Company authorized to transact business in
Pennsylvania as a foreign business corporation.
ANSWER: Admitted.
3. Excel maintains a principal place of business at 300 Corporate Center Drive, Suite
602, Camp Hill, Pennsylvania, 17011.
ANSWER: Admitted.
JURISDICTION AND VENUE
4. Jurisdiction and venue are appropriate in this Court as the matter involves real
property located in Cumberland County, Pennsylvania.
ANSWER: Admitted.
5. Jurisdiction and venue are appropriate in this Court as the events and transactions out
of which CHRA causes of action arose occurred in Cumberland County,
Pennsylvania.
ANSWER: Admitted in part and denied in part. Excel admits jurisdiction and venue are
appropriate in this Court but denies the remaining allegations in paragraph 5 of the
Complaint.
6. Jurisdiction and venue are appropriate in this Court as the Defendant is located in and
conducts business in Cumberland County, Pennsylvania.
ANSWER: Admitted.
2
BACKGROUND
7. CHRA is the owner of real property located at 300 Corporate Center Drive, Camp
Hill, Pennsylvania (the "Property")
ANSWER: Admitted upon information and belief.
8. CHRA Maintains a multi-unit commercial office building (the "Building") on the
Property.
ANSWER: Admitted.
9. Pursuant to a Lease Agreement dated as of May 1, 2010 (the "Lease Agreement"),
CHRA leased Suite 602 of the Building (the "Premises") to Excel. A true and
accurate copy of the Lease Agreement is attached hereto as Exhibit `A' and made a
part hereof by reference.
ANSWER: Admitted in part and denied in part. Defendant admits that it entered into the
Lease Agreement dated May 1, 2010 and attached to the Complaint as Exhibit "A". The
remaining allegations of this paragraph attempt to characterize the content of the Lease
Agreement, which is a writing that speaks for itself, therefore, those allegations are denied
as stated.
10. Pursuant to paragraph 1.02 of the Lease Agreement, the lease term expired on March
31, 2011 (the "Expiration Date").
ANSWER: Admitted in part and denied in part. Defendant admits that the Lease
Agreement terminated on March 31, 2011. The remaining allegations of this paragraph
attempt to characterize the content of the Lease Agreement, which is a writing that speaks
for itself. Therefore, those allegations are denied as stated.
3
11. Pursuant to paragraphs 12.04 and 22.01 of the Lease Agreement, Excel was obligated
to remove from the Property and surrender the Premises on or before the Expiration
Date.
ANSWER: Denied. The Lease Agreement is a writing that speaks for itself. By way of
further answer, Excel was not obligated to vacate the Property upon the expiration of the
term in the Lease Agreement because Excel and Plaintiff entered into an oral lease which
extended Excel's right to occupy the Property. Specifically, in January 2011, as the written
lease was approaching the Expiration Date, Excel, by and through its Chief Financial
Officer, Brent Werner, began discussions with CHRA, through CHRA's agent and
property management firm, Carrow Real Estate Services, PA, LLC ("farrow"). Mr.
Werner's communications with CHRA and Carrow were with Helen Latchford, the local
property manager, and Serena Schulz, the Vice President of Carrow out of Albany, New
York.
At the time, Excel indicated that it would like additional space in the same building
and Carrow represented that Deloitte had a blanket right of first refusal of the other
existing space in Property. Excel decided that it wished to explore leasing space on the
second floor of the Property. On February 22, 2011, Carrow informed Excel that Deloitte
had not exercised its right of first refusal for the desired space on the second floor and the
parties began negotiating a lease for such space. Both parties recognized and
acknowledged that Excel's possession of the second floor space could only be accomplished
through a significant build-out of that space. Because the time needed to negotiate the lease
and conclude such build-out would necessarily take the parties well beyond the Expiration
4
Date of the Lease Agreement, Excel, by and through Brent Werner, and CHRA, by and
through Carrow and its Vice President, Serena Shulz, agreed, orally, that Excel could
continue to lease the Premises, on a month-to-month basis, while the parties moved
forward with negotiating a lease for the second floor space and arranging for the build-out
of that space. This oral agreement was reached on or about February 22, 2011. The Lease
Agreement expired on the Expiration Date and the parties continued to operate under the
oral, month-to-month lease from April 1, 2011 forward.
12. Excel did not remove from the Premises as of the Expiration Date.
ANSWER: Admitted in part and denied in part. Excel admits that it did not vacate the
Property when the term in the written Lease Agreement expired. Excel denies any
implication that it was obligated to vacate the Property at that time. By way of further
answer, Excel was not obligated to vacate the Property upon the expiration of the term in
the Lease Agreement because Excel and Plaintiff entered into an oral lease which extended
Excel's right to occupy the Property as set forth in Excel's answer to paragraph 11 above.
13. By letter dated July 11, 2011, the undersigned counsel for CHRA notified Excel that
Excel had to vacate the Premises no later than September 1, 2011. A true and correct
copy of the July 11, 2011 letter is attached hereto as Exhibit "B" and made a part
hereof by reference.
ANSWER: Admitted in part and denied in part. Excel admits it received the letter
attached as Exhibit "B". The remaining allegations of this paragraph attempt to
characterize the content of the letter, which is a writing that speaks for itself. Therefore,
those allegations are denied as stated.
5
14. Excel did not vacate the Premises by September 1, 2011.
ANSWER: Admitted in part and denied in part. Excel admits that it did not vacate the
Property by September 1, 2011. Excel denies any implication that it was obligated to
vacate the Property at that time.
15. By Notice to Quit dated December 8, 2011 CHRA demanded that Excel vacate the
Premises and make outstanding payments due to CHRA. A true and correct copy of
the December 8, 2011 notice is attached hereto as Exhibit "C" and made a part hereof
by reference.
ANSWER: Admitted in part and denied in part. Excel admits that it received the letter
dated December 8, 2011 that is attached to the Complaint as Exhibit C. Excel denies the
remaining allegations of this paragraph as the letter is a writing that speaks for itself.
Excel further denies any implication that information set forth in the letter is accurate.
16. On January 13, 2012, CHRA initiated the above-captioned action against Excel.
ANSWER: Admitted.
17. On January 13, 2012, CHRA also confessed judgment for possession of the Premises
at Cumberland County Docket No. 12-153 - Civil Term.
ANSWER: Admitted that CHRA confessed judgment but denied as to any allegation that
CHRA was legally entitled to do so.
18. On or about February 17, 2012, Excel filed a Petition to Strike Off Confessed
Judgment, or, Alternatively, to Open Confessed Judgment at Docket No. 12-153 -
Civil Term.
ANSWER: Admitted.
6
19. In its Petition to Strike Off Confessed Judgment, or, Alternatively, to Open Confessed
Judgment, Excel alleges that Excel and CHRA entered into an oral agreement either
modifying or superseding the written Lease Agreement such that Excel had the right
to remain in the Premises on a month-to-month basis.
ANSWER: Excel denies the allegations of this paragraph as this paragraph attempts to
characterize the Petition, which is a writing that speaks for itself.
20. In Excel's Amended Answer dated March 23, 2012 to CHRA's Complaint in the
above-captioned action, Excel contends that the Lease Agreement expired on the
Expiration Date and the parties continued to operate under a new, oral, month-to-
month lease agreement from April 1, 2011 forward. (See Excel's Answer at
paragraph 11)
ANSWER: Excel denies the allegations of this paragraph as this paragraph attempts to
characterize the Amended Answer, which is a writing that speaks for itself.
21. CHRA disputes Excel's characterizations regarding the alleged oral lease agreement.
ANSWER: Admitted that CHRA wrongfully disputes the legal relationship between the
parties.
22. Nevertheless, even if the Court were to find an oral, month-to-month agreement, as
alleged by Excel, it is clear that Excel's right to continued occupancy of the Premises
ended as early as September 1, 2011 and no later than January 8, 2011.
ANSWER: Denied.
23. By lease agreement dated October 26, 2011, CHRA became obligated to deliver
possession of the Premises to non-party Deloitte, LLP on or before December 1,
7
2011. A true and correct copy of the October 26, 2011 lease agreement is attached
hereto as Exhibit "D" and made a part hereof by reference.
ANSWER: Excel is without knowledge or information sufficient to admit or deny the
allegations contained in paragraph 23. To the extent this paragraph attempts to
characterize the Deloitte lease agreement, such characterizations are denied as the lease
agreement is a writing that speaks for itself.
COUNTI
BREACH OF CONTRACT - EVICTION
24. The averments of all paragraphs set forth above are incorporated herein by reference
and made a part hereof as if fully set forth.
ANSWER: Paragraphs one (1) through thirteen (23) of Excel's Answer above are
incorporated herein by reference.
25. The Lease Agreement is a binding contract between CHRA and Excel that is
supported by adequate consideration.
ANSWER: Denied. The averments of this paragraph constitute conclusions of law to
which no response is required. To the extent that a response is deemed necessary, Excel
admits that the Lease Agreement was a binding contract between Excel and Plaintiff until
it terminated on March 31, 2011.
26. By failing to vacate the Premises on or before March 31, 2011, Plaintiff is in violation
of the Lease Agreement.
ANSWER: Denied. Excel denies that it violated the Lease Agreement by failing to vacate
the Property by March 31, 2011. By way of further answer, Excel was not obligated to
vacate the Property upon the expiration of the Lease Agreement because Excel and
8
Plaintiff entered into an oral lease which extended Excel's right to occupy the Property as
set forth in response to paragraph 11 above.
27. In the alternative, if, as Excel suggests, in its Petition to Strike Off Confessed
Judgment, or, Alternatively, to Open Confessed Judgment and in paragraph 11 of its
Answer to CHRA's original Complaint, CHRA and Excel entered into an oral month-
to-month agreement, Excel's right to continued occupancy expired on January 8,
2012, at the very latest.
ANSWER: Denied.
28. As of the date of the filing of this Complaint, Excel continues to occupy the Premises.
ANSWER: Admitted. As of the date of the filing of this Answer, Excel no longer occupies
the Premises.
COUNT II
BREACH OF CONTRACT
29. The averments of all paragraphs set forth above are incorporated herein by reference
and made a part hereof as if fully set forth.
ANSWER: Paragraphs one (1) through thirteen (28) of Excel's Answer above are
incorporated herein by reference.
30. Excel's failure to vacate the Premises constitutes a breach of its obligations under the
Lease Agreement.
ANSWER: Denied. The averments of this paragraph constitute conclusions of law to
which no response is required. To the extent that a response is deemed necessary, the
averments are denied.
9
31. Alternatively, Excel's failure to vacate the Premises constitutes a breach of its
obligations under the Lease Agreement, as orally modified.
ANSWER: Denied. The averments of this paragraph constitute conclusions of law to
which no response is required. To the extent that a response is deemed necessary, the
averments are denied.
32. Excel's breach of the Lease Agreement entitles CHRA to damages.
ANSWER: Denied. The averments of this paragraph constitute conclusions of law to
which no response is required.
33. Paragraph 1.03 of the Lease Agreement provides, in relevant part, as follows:
Notwithstanding any other provision hereof, if [Excel] shall fail to vacate the
Premises and comply with its obligations hereunder, including, but not limited to, its
obligations pursuant to Article 12 hereof on or before the Expiration Date (the date
the Tenant vacates the Premises and complies with its obligations hereunder is
sometimes referred to herein as the "Tenant Vacation Date"), the Fixed Rent due to
the Landlord from the Expiration Date until the Tenant Vacation Date shall be in an
amount equal to (i) Three (ii) multiplied by (a) the Assumed Annual Fixed Rent...,
(b) divided by 365 and (c) the resulting quotient multiplied by the number of days
from the Expiration Date until the Tenant Vacation Date. For purposes of the
preceding sentence, the "Assumed Annual Fixed Rent" shall be deemed to be nine-
Four Thousand Nine Hundred Fifty-Nine and 96/100's Dollars ($94,959.96).
ANSWER: Denied as stated. The allegations of this paragraph incompletely quote a
portion of the Lease Agreement. The Lease Agreement is a writing that speaks for itself.
By way of further answer, the Lease Agreement did not govern the parties' relationship
after March 31, 2011
34. Pursuant to the above-quoted provision, Excel is obligated to pay CHRA $780.49 per
day for each day it remains in the Premises after March 31, 2011.
10
ANSWER: Denied. The Lease Agreement is a writing that speaks for itself. By way of
further answer, the Lease Agreement did not govern the parties' relationship after March
31, 2011.
35. Paragraph 22.02 of the Lease Agreement provides, in relevant part, as follows:
22.02 [Excel] hereby agrees to indemnify and save [CHRA] harmless against all
costs, claims, loss and liability resulting from delay by [Excel] in
surrendering the Premises, including, without limitation, any claims made
by any succeeding tenant founded upon such delay. The Parties recognize
and agree that the rental value of the Premises after the expiration of the
Term and the potential loss to [CHRA] resulting from any failure by
[Excel] timely to surrender the Premises will be substantial, will exceed
the amount of monthly rent theretofore payable hereunder, and is currently
impossible of accurate measurement. [Excel] therefore agrees that if
possession of the Premises is not surrendered to [CHRA] upon the
Expiration Date or sooner termination of the Term, [Excel] will pay
[CHRA] as liquidated damages for such loss (and not for any other
damages Landlord may sustain) for each month and for each portion of
any month during which [Excel] holds over in the Premises after the
expiration or termination of the Term, a sum equal to two (2) times the
average Rent payable per month under the Lease during the last six
months of the Term...
ANSWER: Denied. The Lease Agreement is a writing that speaks for itself. By way of
further answer, the Lease Agreement did not govern the parties' relationship after March
31, 2011.
36. During the last six months of the Term, Excel's rental amount was $7,913.33 per
month.
ANSWER: Admitted.
37. Pursuant to §22.02 of the Lease Agreement, CHRA is entitled to payment in the
amount of $15,826.16 per month and for each portion of any month which Excel
holds over after March 31, 2011.
11
ANSWER: Denied. The averments of this paragraph assert conclusions of law to which no
response is required. To the extent that a response is required, Excel responds that the
Lease Agreement is a writing that speaks for itself. By way of further answer, the Lease
Agreement did not govern the parties' relationship after March 31, 2011.
38. Pursuant to §28.02 of the Lease Agreement, CHRA is entitled to out-of-pocket
expenses, including counsel fees, incurred by CHRA on account of Excel's failure to
perform its obligations under the lease agreement.
ANSWER: Denied. The averments of this paragraph assert conclusions of law to which no
response is required. To the extent that a response is required, Excel responds that the
Lease Agreement is a writing that speaks for itself. By way of further answer, the Lease
Agreement did not govern the parties' relationship after March 31, 2011.
39. Pursuant to §38.01 of the Lease Agreement, CHRA is entitled to a late charge of three
(3) cents for each dollar of such Fixed Rent or Additional Rent which shall not have
been paid to Landlord within such ten (10) days after becoming due and payable.
ANSWER: Denied. The averments of this paragraph assert conclusions of law to which no
response is required. To the extent that a response is required, Excel responds that the
Lease Agreement is a writing that speaks for itself. By way of further answer, the Lease
Agreement did not govern the parties' relationship after March 31, 2011.
40. Pursuant to §38.02 of the Lease Agreement, for each payment due to CHRA that is
not paid within ten (10) days of the date it becomes due, CHRA is entitled to interest
at a rate of 2% per month for each payment due from the date it becomes due until the
date it is paid.
12
ANSWER: Denied. The averments of this paragraph assert conclusions of law to which no
response is required. To the extent that a response is required, Excel responds that the
Lease Agreement is a writing that speaks for itself. By way of further answer, the Lease
Agreement did not govern the parties' relationship after March 31, 2011.
41. Inasmuch as Excel has not vacated the Premises, CHRA's damages are continuing to
accrue.
ANSWER: Denied. The averments of this paragraph assert conclusions of law to which no
response is required. To the extent that a response is required, Excel responds that the
Lease Agreement is a writing that speaks for itself. By way of further answer, the Lease
Agreement did not govern the parties' relationship after March 31, 2011 and Excel has
vacated the Premises.
COUNT III
BREACH OF CONTRACT
(In the alternative to Count II)
42. The averments of all paragraphs set forth above are incorporated herein by reference
and made a part hereof as if fully set forth.
ANSWER: Paragraphs one (1) through thirteen (41) of Excel's Answer above are
incorporated herein by reference.
43. If the Court finds that Excel's original Lease Agreement expired on the Expiration
Date of March 31, 2011, and a new, oral, month-to-month lease agreement took effect
as of April 1, 2011, which determination CHRA denies, then Excel's failure to vacate
the Premises on or before September 1, 2011 constitutes a breach of the alleged, oral,
month-to-month lease agreement.
13
ANSWER: Denied. The averments of this paragraph constitute conclusions of law to
which no response is required. To the extent that a response is deemed necessary, the
averments are denied.
44. In the alternative to the averments of paragraph 43 above, Excel's failure to vacate
the Premises by January 8, 2012 constitutes a breach of the alleged oral, month-to-
month lease agreement.
ANSWER: Denied. The averments of this paragraph constitute conclusions of law to
which no response is required. To the extent that a response is deemed necessary, the
averments are denied.
45. CHRA is entitled to damages actually suffered by CHRA as a result of Excel's breach
of the oral, month-to-month lease agreement.
ANSWER: Denied. The averments of this paragraph constitute conclusions of law to
which no response is required. To the extent that a response is deemed necessary, the
averments are denied.
46. Inasmuch as Excel has not vacated the Premises, CHRA's damages are continuing to
accrue.
ANSWER: Denied. The averments of this paragraph constitute conclusions of law to
which no response is required. To the extent that a response is deemed necessary, the
averments are denied.
WHEREFORE Defendant Excel Homes Group, LLC respectfully requests that Plaintiff
take nothing by way of its Complaint, and that judgment be entered in its favor and against
14
Plaintiff, and that Excel Homes Group, LLC be awarded costs of this action and all other relief
that the Court deems just and proper.
NEW MATTER
By way of further response to the entirety of Plaintiff's Amended Complaint, Defendant
sets forth the following New Matter:
47. At or around the time that the term set forth in the Lease Agreement was ending,
Excel and Plaintiff entered into an oral lease by which Plaintiff agreed that Excel
could continue to occupy the Property as set forth in Excel's answer to paragraph 11
above.
48. Because of the oral lease, Excel is not a "holdover" tenant under the written Lease
Agreement, which expired on March 31, 2011.
49. Plaintiff's Complaint fails to state a claim upon which relief can be granted.
50. The damages suffered by Plaintiff, if any, resulted from the failure of Plaintiff to
mitigate damages, as set forth below.
51. By August 2011, Excel and Plaintiff had negotiated all but a few remaining minor
terms of a new lease agreement for space on the second floor. After some additional
delays on the part of Plaintiff, by conference call on September 21, 2011, Carrow
informed Excel that Plaintiff's secured lender was unwilling to approve leases that
included tenant improvements.
52. The tenant improvement provision of the negotiated lease was a fundamental and
material basis for the bargain that had already been agreed-upon in principal.
15
53. After Plaintiff refused to provide the agreed-upon tenant improvements, the parties
attempted, unsuccessfully, to come up with an alternate solution.
54. Plaintiff s failure to honor its agreement to provide tenant to improvements in
connection with Excel's move to the second floor resulted in Excel's inability to move
out of the Premises.
55. Therefore, any damages that Plaintiff has incurred from Excel's continued occupancy
of the Premises resulted from Plaintiffs breaching of its agreement to provide tenant
improvements in the second floor space.
56. Likewise, Plaintiff, through its Complaint, alleges damages by virtue of promising the
Premises to Deloitte by a date certain.
57. Upon information and belief, at the time Plaintiff promised such space to Deloitte,
Plaintiff knew that such space was being occupied by Excel and that it would take at
least several months for Excel to locate alternative space and move its corporate
headquarters.
58. Further, Plaintiff s Amended Complaint alleges that CHRA believes Excel may have
had until January 8, 2012 to vacate the same Premises it had promised to Deloitte by
December 31, 2011.
59. Plaintiff s claims are barred by Plaintiff s prior breach of the oral lease agreement,
including, but not limited to, demanding payment of funds that are not due under the
oral lease, and seeking remedies, equitable and monetary, from Excel in excess of
what Plaintiff is entitled to recover.
16
60. Some or all of the damages sought by Plaintiff constitute unenforceable penalties
under Pennsylvania law.
61. Plaintiff s claims may be barred, in whole or part, by the doctrines of subsequent
modification and/or waiver as set forth below.
62. As set forth in Excel's answer to paragraph 11 above, the parties entered into an oral
lease which replaced the Lease Agreement. To the extent such oral lease is not
deemed to have been a whole and complete replacement of the Lease Agreement,
such oral lease constitutes a modification and/or waiver of the terms of the Lease
Agreement.
63. Plaintiffs claims may be barred, in whole or in part, by estoppel because Plaintiff
should be estopped from pursuing its claims against Excel due to the representations
made under the oral lease.
64. Plaintiffs claim may be barred, in whole or in part, by laches, because Plaintiff
delayed unreasonably in bringing this action in that if, as the Plaintiff alleges, the
Lease Agreement governs the parties' relationship, such Agreement expired on
March 31, 2011 and this action was not brought until January, 2012.
65. Plaintiffs claims are barred by accord and satisfaction. Specifically, in the event the
oral lease is not deemed to have been a whole and complete replacement of the Lease
Agreement, such oral lease constituted an accord by Plaintiff to accept the normal
monthly rental payments for the Premises, which accord was satisfied by Excel's
continued payment of the monthly lease amount.
17
66. Plaintiff's claims are barred by payment. Specifically, any and all lease payments due
and owing to Plaintiff under the oral lease have been paid.
67. Plaintiff's damages, if any, were caused, in whole or in part, by Plaintiff's own
actions as more specifically set forth in paragraph 32 above.
WHEREFORE Defendant Excel Homes Group, LLC respectfully requests that Plaintiff
take nothing by way of its Complaint, that judgment be entered in its favor and against Plaintiff,
and that Excel Homes Group, LLC be awarded costs of this action and all other relief that the
Court deems just and proper.
Respectfully submitted,
McNees Wallace & Nurick LLC
4;??A 6L"
Kimberly M. Colonna, PA #80362
100 Pine Street, P.O. Box 1166
Harrisburg, PA 17108-1166
Tel. 717-232-8000
Fax. 717-237-5300
kcolonna@mwn.com
W. Todd Woelfer, Pro Hac Vice
Trevor Q. Gasper, Pro Hac Vice
MAY • OBERFELL • LORBER
4100 Edison Lakes Parkway, Suite 100
Mishawaka, IN 46545
Telephone: (574) 243-4100
Facsimile: (574) 232-9789
taasperkmaylorber. com
Attorneys for Defendant,
Excel Homes Group, LLC
Dated: May 11 y , 2012
18
VERIFICATION
Subject to the penalties of 18 Pa. C.S. § 4904, I, Jolene A. Myers, certify that I am
authorized to make this verification on behalf of Excel Homes Group, LLC and that the facts set
forth in the foregoing Amended Answer and New Matter are true and correct to the best of my
knowledge, or information and belief.
Ex
By
Date: f )Z) 4ZI
19
CERTIFICATE OF SERVICE
I, Kimberly M. Colonna do hereby certify that a true and correct copy of the foregoing
Amended Answer to Complaint and New Matter was served upon the following person by
prepaid postage on May I y , 2012.
Ronald L. Finck, Esq.
METTE, EVANS & WOODSIDE
P.O. Box 5950
Harrisburg, PA 17110-0950
BY: I%
Kim er M. Colonna
20
i.•j 11:t `•1'L? f It??tiEl t:S?.?•.tf
:0112 JU, -9 AM 11: 47
?J lJ i f iwY {..: 1 L A 14 0
PENNSYLVANIA
CAMP HILL REALTY ASSOCIATES,
LP
Plaintiff
V.
EXCEL HOMES GROUP, LLC
Defendant
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PENNSYLV.
NO. 12-152 Civil Term
PLAINTIFF'S REPLY TO NEW MATTER OF DEFENDANT
The Plaintiff, Camp Hill Realty Associates, LP ("CHRA" or "Plaintiff') files this Reply
to New Matter as follows:
47. At or around the time that the term set forth in the Lease Agreement was
Excel and Plaintiff entered into an oral lease by which Plaintiff agreed that
could continue to occupy the Property as set forth in Excel's answer to
11 above.
ANSWER: Denied. The averments of paragraph 47 constitute conclusions of law to whi
no responsive pleading is required by the Pennsylvania Rules of Civil Procedure. To the
extent a response is deemed required, it is specifically denied that CHRA entered into an
oral lease with Defendant, Excel Homes Group, LLC ("Excel"). Strict proof thereof is
demanded.
48. Because of the oral lease, Excel is not a "holdover" tenant under the written
Agreement, which expired on March 31, 2011.
ANSWER: Denied. Plaintiff incorporates its response to paragraph 47 above herein as if
fully set forth. By way of further answer, the averments of paragraph 48 constitute
conclusions of law to which no responsive pleading is required by the Pennsylvania Rules
I?
of Civil Procedure.
49„ Plaintiff's Complaint fails to state a claim upon which relief can be granted.
ANSWER: Denied. The averments of paragraph 49 constitute conclusions of law to whic?
no responsive pleading is required by the Pennsylvania Rules of Civil Procedure.
50. The damages suffered by Plaintiff, if any, resulted from the failure of Plaintiff to
mitigate damages, as set. forth below.
ANSWER: Denied. The averments of paragraph 50 constitute conclusions of law to wh
no responsive pleading is required by the Pennsylvania Rules of Civil Procedure. To the
extent a response is deemed required, it is specifically denied that CHRA failed to mitigi
damages resulting from Excel's actions or inaction. Strict proof thereof is demanded.
51. By August 2011, Excel and Plaintiff had negotiated all but a few remaining mi
terms of a new lease agreement for space on the second floor. After some
additional delays on the part of Plaintiff, by conference call on September 21,
2011, Carrow informed Excel that Plaintiff's secured lender was unwilling to
approve leases that included tenant improvements.
ANSWER: Admitted in part; denied in part. It is admitted that Excel and CHRA
negotiated for Excel's lease of space in the Building, on the second floor. Excel's
characterization of the status of the negotiations as of August of 2011 is specifically de
and strict proof thereof is demanded, if deemed relevant. It is specifically denied that
2
CHRA was the cause of any delay. It is further specifically denied that CHRA's lender's
willingness to finance tenant improvements had any effect on CHRA's ability to proceed
with the contemplated lease agreement with Excel. Strict proof thereof is demanded, if
deemed relevant.
52. The tenant improvement provision of the negotiated lease was a fundamental
material basis for the bargain that had already been agreed-upon in principal.
ANSWER: Denied. The averments of paragraph 52 constitute conclusions of law to whi<
no responsive pleading is required by the Pennsylvania Rules of Civil Procedure. To the
extent a response is deemed required, it is specifically denied that the Parties' discussions
evolved into a negotiated lease agreement, in principal or otherwise, and strict proof
thereof is demanded, if deemed relevant.
53. After Plaintiff refused to provide the agreed-upon tenant improvements, the
parties attempted, unsuccessfully, to come up with an alternate solution.
ANSWER: Denied. It is specifically denied that the Plaintiff refused to provide tenant
improvements or that the parties ever came to any agreement regarding tenant
improvements. Strict proof thereof is demanded, if deemed relevant.
54. Plaintiff s failure to honor its agreement to provide tenant to improvements in
connection with Excel's move to the second floor resulted in Excel's inability
move out of the Premises.
ANSWER: Denied. The averments of paragraph 54 constitute conclusions of law to w
no responsive pleading is required by the Pennsylvania Rules of Civil Procedure. It is
3
specifically denied that the Parties' negotiations evolved into any agreement and strict
proof thereof is demanded, if deemed relevant.
55. Therefore, any damages that Plaintiff has incurred from. Excel's continued
occupancy of the Premises resulted from Plaintiff's breaching of its agreement
provide tenant improvements in the second floor space.
ANSWER: Denied. The averments of paragraph 55 constitute conclusions of law to
no responsive pleading is required by the Pennsylvania Rules of Civil Procedure. To the
extent a response is deemed required, CHRA incorporates its answers to paragraphs 52
through 54 above herein.
56. Likewise, Plaintiff, through its Complaint, alleges damages by virtue of promisi
the Premises to Deloitte by a date certain.
ANSWER: Admitted.
57. Upon information and belief, at the time Plaintiff promised such space to
Plaintiff knew that such space was being occupied by Excel and that it would
at least several months for Excel to locate alternative space and move its
corporate headquarters.
ANSWER: Admitted in part; denied in part. It is admitted only that at the time CHRA
promised the space to Deloitte, CHRA knew that the Premises was occupied by Excel. It
specifically denied that Excel had any right to continue its occupancy of the Premises. It
further specifically denied that CHRA had any reason to know that Excel would not be a
of the Premises in time for CHRA's delivery of possession to Deloitte. Strict proof there(
is demanded. By way of further answer, Excel's agents were well aware of Plaintiff's
4
obligations to Deloitte and had plenty of time to prepare for their surrender of possession.
Nevertheless, Defendant failed and/or refused to surrender possession of the Premises and
is therefore responsible for resulting damages suffered by Plaintiff.
58. Further, Plaintiffs Amended Complaint alleges that CHRA believes Excel may
have had until January 8, 2012 to vacate the same Premises it had promised to
Deloitte by December 31, 2011.
ANSWER: Denied. CHRA's Amended Complaint is a document in writing which as sucl
speaks for itself. To the extent Excel mischaracterizes, misinterprets, misquotes,
misrepresents, elaborates upon, or removes the contents of the writing from their context,
said averments are denied and strict proof thereof is demanded. By way of further answe
CHRA's Amended Complaint alleges, in the alternative, that any right Excel had to o
the space ended no later than January 8, 2012.
59. Plaintiffs claims are barred by Plaintiff s prior breach of the oral lease
including, but not limited to, demanding payment of funds that are not due
the oral lease, and seeking remedies, equitable and monetary, from Excel in
excess of what Plaintiff is entitled to recover.
ANSWER: Denied. The averments of paragraph 59 constitute conclusions of law to
no responsive pleading is required by the Pennsylvania Rules of Civil Procedure. By way
of further answer, Plaintiff incorporates its response to paragraph 47 above herein as if
fully set forth.
60. Some or all of the damages sought by Plaintiff constitute unenforceable penal
under Pennsylvania law.
5
ANSWER: Denied. The averments of paragraph 60 constitute conclusions of law to which
no responsive pleading is required by the Pennsylvania Rules of Civil Procedure.
61. Plaintiff's claims may be barred, in whole or part, by the doctrines of subsequent
modification and/or waiver as set forth below.
ANSWER: Denied. The averments of paragraph 61 constitute conclusions of law to
no responsive pleading is required by the Pennsylvania Rules of Civil Procedure.
62., As set forth in Excel's answer to paragraph 11 above, the parties entered into an
oral lease which replaced the Lease Agreement. To the extent such oral lease is
not deemed to have been a whole and complete replacement of the Lease
Agreement, such oral lease constitutes a modification and/or waiver of the terms
of the Lease Agreement.
ANSWER: Denied. It is specifically denied that the parties entered into an oral lease
agreement which replaced or modified the original, written Lease Agreement. Strict
thereof is demanded.
63. Plaintiff's claims may be barred, in whole or in part, by estoppel because
should be estopped from pursuing its claims against Excel due to the
representations made under the oral lease.
ANSWER: Denied. The averments of paragraph 63 constitute conclusions of law to
no responsive pleading is required by the Pennsylvania Rules of Civil Procedure. By way
of further answer, CHRA incorporates its response to paragraph 62 above herein as if
set forth.
6
64. Plaintiff s claim may be barred, in whole or in part, by ]aches, because Plaintiff
delayed unreasonably in bringing this action in that if, as the Plaintiff alleges, the
Lease Agreement governs the parties' relationship, such Agreement expired on
March 31, 2011 and this action was not brought until January, 2012.
ANSWER: Denied. The averments of paragraph 64 constitute conclusions of law to whit
no responsive pleading is required by the Pennsylvania Rules of Civil Procedure. By way
of further answer, Plaintiffs claims are founded upon a contract which is governed by a
four-year statute of limitations pursuant to 42 Pa.C.S. §5525.
65. Plaintiff s claims are barred by accord and satisfaction. Specifically, in the
the oral lease is not deemed to have been a whole and complete replacement of
the Lease Agreement, such oral lease constituted an accord by Plaintiff to accept
the normal monthly rental payments for the Premises, which accord was
by Excel's continued payment of the monthly lease amount.
ANSWER: Denied. The averments of paragraph 65 constitute conclusions of law to
no responsive pleading is required by the Pennsylvania Rules of Civil Procedure. By way
of further answer, CHRA denies Excel's characterization of the Parties' discussions
the negotiations.
66. Plaintiffs claims are barred by payment. Specifically, any and all lease pa
due and owing to Plaintiff under the oral lease have been paid.
ANSWER: Denied. The averments of paragraph 66 constitute conclusions of law to
no responsive pleading is required by the Pennsylvania Rules of Civil Procedure.
7
67. Plaintiff's damages, if any, were caused, in whole or in part, by Plaintiff's own
actions as more specifically set forth in paragraph 32 above.
ANSWER: Denied. The averments of paragraph 67 constitute conclusions of law to whip
no responsive pleading is required by the Pennsylvania Rules of Civil Procedure. To the
extent is a response is deemed required, it is specifically denied that CHRA's damages w
caused by any actions of CHRA. Strict proof thereof is demanded, if deemed relevant.
Respectfully submitted,
METTE, EVANS & WOODSIDE
By: 1";-
Ronald L. Finck, Esquire
Sup. Ct. I.D. No. 89985
3401 North Front Street
P.O. Box 5950
Harrisburg, PA 17110-0950
(717) 232-5000 - Phone
(717) 236-1816 - Fax
Attorneys for Plaintiff
Date: July 6, 2012
8
VERIFICATION
I, Jacob Weinreb, am an authorized agent of Camp Hill Realty Associates, LP and am
authorized to make this verification. I have read the foregoing document and verify that the
set forth therein are true and correct to the best of my knowledge, information and belief. To
extent that the foregoing document and/or its language is that of counsel, I have relied upon
counsel in making this Verification.
I understand that any false statements made herein are subject the penalties pf48 Pa.
C.S. §4
DATE:
to authorities.
Jacob
CERTIFICATE OF SERVICE
I certify that I am this day serving a copy of the foregoing document upon the person(s)
and in the manner indicated below, which service satisfies the requirements of the Pennsylvania
Rules of Civil Procedure, by depositing a copy of same in the United States Mail, with first-clas
postage, prepaid, addressed as follows:
Kimberly M. Colonna, Esquire
McNees Wallace & Nurick LLC
100 Pine Street
P.O. Box 1166
Harrisburg, PA 17108-1166
Attorney for Defendant
METTE, EVANS & WOODSIDE
By: Ronald L. Finck
Sup. Ct. I.D. No. PA 89985
3401 North Front Street
P.O. Box 5950
Harrisburg, PA 17110-0950
(717) 232-5000 - Phone
(717) 236-1816 - Facsimile
Attorneys for Plaintiff
Date: July 6, 2012
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