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IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA
CIVIL DIVISION - LAW
PANAYIOTIS TSIRIGOTIS AND )
ELIKA L., INC. )
Plaintiffs )
V. )
JEG CORP., )
Defendant
NO. /7y /
CIVIL ACTION - CONFESSION OF
JUDGMENT FOR POSSESSION
CONFESSION OF JUDGMENT FOR POSSESSION OF REAL PROPERTY
Pursuant to the authority contained in the warrant of attorney, a copy of which is attached
to the Complaint filed in this action, I appear for the Defendant, JEG Corp., and confess
judgment in ejectment in favor of the Plaintiffs, Panayiotis Tsirigotis and Elika L., Inc., and
against the Defendant for possession of the real property described as follows:
146 SHERATON DRIVE
NEW CUMBERLAND, CUMBERLAND
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BY:
SAMUEL E. COHE , .D. #204617
JOHN F. GROSS, ESQUIRE, I.D. #82079
DONALD LABARRE, ESQUIRE, I.D. #152 12
Attorneys for Defendant
33 South 7t' Street
P.O. Box 4060
Allentown, PA 18105-4060
Phone: (610) 820-5450
Direct No.: (610) 871-1319
Fax: (610) 820-6006
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IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA
CIVIL DIVISION - LAW
PANAYIOTIS TSIRIGOTIS AND )
ELIKA L., INC. )
Plaintiffs )
V. )
JEG CORP., )
Defendant
No. dL` NO
CIVIL ACTION - CONFESSION OF
JUDGMENT FOR POSSESSION
COMPLAINT
Plaintiffs, Panayiotis Tsirigotis and Elika L., Inc., by its attorneys, Gross McGinley, LLP,
hereby file this Complaint for Confession of Judgment for Possession against Defendant, JEG
Corp., and in support thereof avers:
1. Plaintiff Panayiotis Tsirigotis, is an adult individual with a mailing address of
1664 Promise Lane, Macungie, Lehigh County, Pennsylvania 18062.
2. Plaintiff, Elika L., Inc., is a Pennsylvania Corporation having an office at 1664
Promise Lane, Macungie, Lehigh County, Pennsylvania 18062.
3. Defendant JEG Corp., is a Pennsylvania Corporation having a place of business at
3127 S. 0 Street, Whitehall, Lehigh County, Pennsylvania 18052.
4. On or about May 1, 2010 Plaintiffs and Defendant entered into a Lease
Agreement (the "Lease") by which Plaintiffs leased to Defendant certain premises located at 146
Sheraton Drive, New Cumberland, Cumberland County, Pennsylvania 17070 (the "Premises").
A true and correct copy of the Lease showing Defendant's signature is attached hereto and
marked Exhibit "A" and is incorporated herein by reference.
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AL 5. In Section 13.01 of the Lease, Defendant, after default, authorized and
empowered the Prothonotary of any attorney of any court of record in the Commonwealth of
Pennsylvania or elsewhere, to appear for and confess judgment against Defendant for possession
of the premises.
6. Defendant is in default under the Lease in that Defendant has failed to pay rent,
additional rent and late charges that have accrued and become payable on or after August 15,
2011.
7. Plaintiffs have satisfied any and all prerequisites as provided for within the Lease
Agreement (attached as Exhibit "A") prior to confessing judgment in ejectment.
8. Judgment for possession is not being entered against a natural person in
connection with a residential lease.
WHEREFORE, Plaintiffs, Panayiotis Tsirigotis and Elika L., Inc., pray Your Honorable
Court to enter judgment in its favor and against Defendant, JEG Corp., for ejectment and
possession of the Premises known as 146 Sheraton Drive, New Cumberland, Cumberland
County, Pennsylvania 17070.
GROSS MCGINLEY, LLP
Date: 31/h 2 BY:
SAMUEL E. COHEN, ESQUIRE, 1. . #204617
JOHN F. GROSS, ESQUIRE, I.D. #82079
DONALD LABARRE, ESQUIRE, I.D. #15212
Attorneys for Plaintiffs
33 South 7t' Street
P.O. Box 4060
Allentown, PA 18105-4060
Phone: (610) 820-5450
Direct No.: (610) 871-1319
Fax: (610) 820-6006
3
16
At. I
IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA
CIVIL DIVISION - LAW
PANAYIOTIS TSIRIGOTIS AND )
ELIKA L., INC. )
Plaintiff )
V. )
JEG CORP, )
Defendant
NO.
CIVIL ACTION - CONFESSION OF
JUDGMENT FOR POSSESSION
VERIFICATION
I, Panayiotis Tsirigotis, individually and as 2?3 / p 9; W I of
Elika L., Inc., am authorized to take this Verification individually and on its behalf. I verify that
the facts set forth in the foregoing Complaint are true and correct to the best of my knowledge,
information and belief.
I understand that false statements herein are made subject to the penalties of 18 Pa.
C.S.A. §4904, relating to unworn falsification to authorities.
Date: --??-
P tis Tsi 'gotis, Indi idually and as BPS iclo'?
'-? of
Elika L., Inc.
00412232. DOC
4
EXHIBIT "A"
e
AGREEMENT FOR LEASE
THIS AGREEMENT FOR LEASE (the "Lease"), made this day of
2010, between PANAYIOTIS TSIRIGOTIS and ELIKA L.,
INC. (collectively th "Landlord") and JEG CORP. (hereinafter the "Tenant") and
CHRISTOS POLITSOPOULOS, ANNA POLITSOPOULOS, DIONYSIOS
MIHALOPOULOS and MARTHA MIHALOPOULOS (hereinafter collectively the
"Guarantors"').
BACKGROUND:
Landlord is the owner of the Premises known as 146 Sheraton Drive, New
Cumberland, Fairview Township, York County, Pennsylvania, 17070, as more particularly
described on Exhibit A attached hereto and made part hereof. Landlord is the owner of all
improvements located on the property as described on Exhibit A (collectively referred to
herein as the "Land and Buildings"). Landlord is willing to lease to Tenant the Land and
Buildings for eight (8) years from the date that the existing tenant vacates the Premises. a
renewal option for an additional term of seven (7) years and two (2) additional five (5) year
renewal options and a final renewal option of four (4) years and six (6) months. Landlord is
currently leasing the Premises to Eat'n Park Hospitality Group, Inc., a copy of said Lease is
attached hereto and marked Exhibit B. Pursuant to the Lease attached hereto and marked
Exhibit B, tenant is to vacate the Premises not later than September 30, 2010 and it is agreed
that the rent commencement date under this Agreement shall begin on the date that the
existing tenant vacates said Premises.
AGREEMENT:
NOW THEREFORE, in consideration of the mutual promises contained herein, and
intending to be legally bound hereby, the parties hereby covenant and agree as follows:
ARTICLE ONE
Premises and Term
SECTION 1.01. Grant of Lease. Landlord, for and in consideration of the terms,
covenants and conditions herein contained, does hereby demise, lease and let the Land and
Building to Tenant and Tenant does hereby let the Land and Building from Landlord, upon
and subject to the terms, covenants and conditions herein contained.
TO HAVE AND TO HOLD the land and buildings for a term of eight (8) years from
the date that the existing tenant vacates the Premises with Tenant having the additional right
to renew the Lease for one additional term of seven (7) years and two additional five (5)
year terms and a fourth renewal option for a term of four (4) years and six (6) months. To
exercise said renewal option, Tenant shall send to Landlord advance six (6) month written
notice of its desire to exercise said renewal option. If Tenant does not send six (6) month
advance written notice of its exercise of the renewal option, then this Lease shall end at the
end of the existing term.
SECTION 1.02. Tenant Warranties. As a material inducement to Landlord in the
making of this Lease, Tenant hereby represents and warrants to Landlord that, as of the date
hereof.
(a) The Land and Building are suitable and adequate in all
respects for the operation of a family restaurant business.
(b) Tenant will obtain, at its cost, whatever licenses, approvals or
authorizations of, or registration or declaration with, any governmental authority, bureau or
agency that may be required for the operation of a family restaurant by Tenant at the
Premises. If Tenant is unable to obtain all necessary approvals as provided above, he shall
have the right to terminate this Lease by written notice to Landlord and this Agreement shall
thereafter be null and void.
(c) The execution, delivery and perfornzance of this Lease will not
violate or contravene any provision of any existing law or regulation or decree of any court,
governmental authority, bureau or agency having jurisdiction over Tenant or of any
mortgage, indenture, security agreement, contract, undertaking or other agreement to
which Tenant is a party or which purports to be binding upon Tenant or any of its assets.
(d) To Tenant's actual knowledge, there are no actions, suits, or
proceedings before any court or governmental department or agency (whether or not
purportedly on behalf of Tenant) pending or, to the knowledge of Tenant, threatened
(i) with respect to any of the transactions contemplated by this Lease or (ii) against or
affecting Tenant or the Land or Building which, if adversely determined, would have a
material adverse effect upon the financial condition, business or operations of Tenant or its
ability to fulfill its obligations under this Lease.
(e) Tenant has full power and authority to enter into this Lease and
this Lease is a valid and binding obligation of Tenant, enforceable in accordance with its
terms.
Tenant hereby undertakes, covenants and agrees for and during the
term hereof, to do, perform and discharge any and all obligations with respect to any
and all matters affecting possession of the Land and Building which Landlord might
otherwise have or be obligated to observe, do, perform, or discharge by reason of the
ownership of the Land and Building by Landlord, except as otherwise expressly set forth
herein.
SECTION 1.03. Landlord Warranties. Except as expressly set forth below, Landlord
has not made and does not hereby or otherwise make any representations or warranties
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whatsoever to Tenant with respect to the Land or Building, title thereto or any of the matters
or things pertaining thereto above described, whether express, implied or otherwise, and
Tenant hereby waives any and all rights and claims to the contrary.
Notwithstanding the foregoing, Landlord represents and warrants as
follows:
(a) Landlord, to Landlord's best knowledge, has good and
marketable title to the Land and Buildings and Landlord possesses full power and authority
to consummate the transactions contemplated hereby in all respects and to lease the Land and
Building to Tenant pursuant hereto, and no other party has any right or option thereto or in
connection therewith except the existing tenant pursuant to the Lease attached hereto and
marked Exhibit B.
(b) To Landlord's best knowledge, the, Land and Building is
zoned so as to permit Tenant to operate a family restaurant business thereon, and there are
no easements, covenants, conditions, restrictions, rights-of-way, governmental rules,
statutes, ordinances, moratoria, policies or plans which would prohibit or interfere with the
operation of a family restaurant upon the Land and Building;
(c) There are no pending or, to Landlord's best knowledge,
threatened condemnation proceedings or other governmental, municipal, administrative or
judicial proceedings affecting the Land and Building;
(d) To Landlord's best knowledge, there are no unpaid special
assessments for sewer, sidewalk, water, paving, gas, electrical or power improvements, or
other capital expenditures or improvements, matured or unmatured, affecting the Land and
Building;
(e) To Landlord's best knowledge, there are no violations of any
law, regulation, ordinance, order or other requirements of any governmental authority
having jurisdiction over or affecting any part of the Land and Building, nor are there any
outstanding notices alleging any such violation.
(f) To Landlord's actual knowledge, there are no actions, suits, or
proceedings before any court or governmental department or agency (whether or not
purportedly on. behalf of Landlord) pending or, to the knowledge of Landlord,
threatened (i) with respect to any of the transactions contemplated by this Lease or (ii)
against or affecting Landlord or the Land or Building which, if adversely determined, would
have a material adverse effect upon the financial condition, business or operations of
Landlord or its ability to fulfill its obligations under this Lease.
(g) Landlord represents and warrants that at the time the existing
Tenant vacates the Premises the Premises will be in the same condition as it presently exists
except for reasonable wear and tear and that all of the operating systems (including but not
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limited to heating, air conditioning, electrical and plumbing) and the structural components
of the Building will be in good operating condition at the time Tenant takes possession of
the Premises.
(h) To Landlord's best knowledge, the Land and Building has not
been used for the disposal of refuse or waste, or for the generation, processing, manufacture,
storage, handling, treatment or disposable of any hazardous, regulated or toxic waste,
substance (liquid or solid), petroleum products or material (the "Hazardous Substance"). To
Landlord's best knowledge, no Hazardous Substance has been installed, used, stored,
generated, handled or located on or beneath the Land and Building which Hazardous
Substance, if found on or beneath the Land and Building, or disposed of off of the Land and
Building, would subject the owner or occupant of the Land and Building to damages,
penalties, liabilities or an obligation to perform any work, clean-up, removal, repair,
construction, alteration, demolition, renovation or installation in or in connection with the
Land and Building and/or its effect on neighboring property in order to comply with any
federal, state or local law, regulation, ordinance or Order concerning the environmental
state, condition or quality of the Land and Building applicable to owners, operators,
occupants or developers of real property. No notice from any governmental body has ever
been served upon Landlord, its agents or employees or, to the Landlord's best knowledge,
any occupant or prior owner of the Land and Building, or any portion thereof, claiming any
violation of any environmental law, or requiring or calling attention to the need for any
environmental clean-up work.
(i) In the event that the existing tenant does not leave remaining
at the Premises the existing booths, tables and chairs, Landlord will pay the cost of replacing
said items with comparable items determined in Landlord's sole discretion. In this event,
Landlord will give a credit to Tenant of one (1) month additional free rent because of the
time delay in replacing said items. Tenant acknowledges that the existing tenant has the
right to remove the items of tangible personal property as specified in Article 16 of the
Lease attached hereto and marked Exhibit B.
ARTICLE TWO
Rent
SECTION 2.01. Base Rent.
(a) Tenant shall pay to Landlord, promptly when due,
without notice or demand and without deduction or set-off of any amount for any reason
whatsoever, the Base Rent (as hereinafter defined), payable in equal monthly installments,
in advance, without demand, on the first day of each calendar month, commencing on the
date that the existing tenant vacates the Premises. If said date of vacation is other than the
first day of a month, rent for that partial month shall be pro-rated on a daily basis on the
basis of a thirty (30) day month.
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(b) "Base Rent" shall mean the following:
(1) Rent for the first year after existing tenant vacates the
Premises shall be the sum of Ninety-Six Thousand Dollars ($96,000) per year, payable in
monthly installments of Eight Thousand Dollars ($8,000) per month. However, Tenant shall
not be required to pay any rent for the thirty (30) days after existing tenant vacates the
Premises.
(ii) Base Rent shall increase on an annual basis for each
additional year during the term of this Lease by an amount equal to Two Percent (2%) of the
prior year's annual Base Rent.
SECTION 2.02. Additional Rent. All other amounts payable by Tenant hereunder,
whether payable to Landlord or to third parties, including without limitation expenses of
Landlord relating to operating costs of the Land, taxes, insurance, sewer and water rent,
utilities and maintenance, to the extent payable by Tenant hereunder, shall be considered and
collectively referred to herein as "Additional Rent" payable by Tenant hereunder.
SECTION 2.03. Manner of PUme t. All amounts payable under Section 2.01 of
this Article, as well as all other amounts payable by Tenant to Landlord under the terms of
this Lease, shall be payable to ELIKA L., INC. at 1664 Promise Lane, Macungie, PA
18062, or such other address as Landlord shall from time to time designate by notice to
Tenant, in lawful money of the United States which shall be legal tender in payment of all
debts and dues, public and private, at the time of payment, in immediately available funds.
SECTION 2.04. Triple Net Lease. It is intended that the Base Rent provided for
herein shall be an absolutely net return to Landlord throughout the Term of this Lease, free
of any expense, charge or other deduction whatsoever with respect to the Land and Building
or the ownership, leasing, operation, maintenance, repair, rebuilding, use or occupation
thereof, or of any portion thereof, or with respect to any interest of Landlord therein, except
only as hereinafter provided in this Section. However, Landlord shall be responsible for any
debt or mortgages that it owes secured by the Land and Building.
During the term of this Lease after Tenant has occupied the Land and
Building, Tenant shall be responsible for all maintenance and capital improvements and
repairs including necessary replacement parts to the heating and air conditioning systems
and other operating systems at the Premises and Tenant shall also be responsible for
structure and other capital repairs to the structures and improvements located on the
Premises and the operating systems contained therein (including, without limitation, the
roof, structural components, HVAC system, electrical system, plumbing system and all other
systems in the Building).
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ARTICLE THREE
Expenses, Taxes and other Charges
SECTION 3.01. Tenant's obligations. After existing tenant has vacated the Premises,
Tenant will pay and discharge, punctually as and when the same shall become due and
payable, each and every item of expense, of every kind and nature whatsoever, for the
payment of which Landlord is, or shall or may be or become, liable by reason of its estate or
interest in the Land and Building or any portion thereof, or by reason of any rights or interest
of Landlord in or under this Lease, or by reason of or in any manner connected with or
arising out of the ownership, leasing, operation, maintenance, repair, rebuilding, use or
occupancy of the Land and Building or any portion thereof. Without limitation of the
generality of the foregoing, but subject, however, to the provisions of sections 3.05 and 3.07
hereof, Tenant will pay and discharge, punctually as and when the same shall become due
and payable 'without penalty, all real estate taxes, personal property taxes, privilege taxes,
excise taxes, business and occupation taxes, gross sales taxes, occupational license taxes,
water charges, sewer charges, assessments (including, but not limited to, assessments for
public improvements or benefits) and all other governmental impositions and charges of
every kind and nature whatsoever, whether or not now customary or within the
contemplation of the parties hereto and regardless of whether the same shall be
extraordinary or ordinary, general or special, unforeseen or foreseen, or similar or
dissimilar to any of the foregoing, that at any time during the initial or any extended term
hereof,, shall be or become due and payable and that:
(a) shall be levied, assessed or imposed upon or against the Land
and Building or any portion thereof, or any interest of Landlord therein or under this Lease;
or
(b) shall be or become liens upon or against said Land and
Building or any portion thereof, or any such interest of Landlord therein, or under this
Lease; or
(c) shall be levied, assessed or imposed upon or against Landlord
by reason of any actual or asserted engagement by Landlord, directly or indirectly, in any
business, occupation or other activity in connection with the Land and Building or any
portion thereof; or
(d) shall be levied, assessed or imposed upon or against, or which
shall be measured by, any rents or rental income, as such, payable to or on behalf of
Landlord, in connection with the Land and Building or any portion thereof, or any interest of
Landlord therein; or
(e) shall be levied, assessed or imposed upon or in connection
with the ownership, leasing, operation, management, maintenance, repair, rebuilding, use or
occupancy of the Land and Building or any portion thereof,
6
c
under or by virtue of any present or future law, statute, under or by virtue of any present or
future law, statute, ordinance, regulation or other requirement of any
governmental authority whatsoever, whether federal, state, county, city, municipal or
otherwise (individually a "Tax" and collectively, "Taxes"), it being the intention of the
parties hereto that, in so far as the same may lawfully be done, Landlord shall be free from
all such expenses and all Taxes and that this Lease shall yield to Landlord not less than
the Base Rent reserved hereunder throughout the Term hereof.
SECTION 3.02. Real Estate Tax Pro-Ration on Rent commencement Date. Real estate
taxes for the first year that Tenant is responsible for rent under the terms of this Lease, shall
be pro-rated using as the pro-ration date the date that the existing tenant has vacated the
Premises.
SECTION 3.03. Apportionment on Expiration of Lease. Real estate taxes for the last
year of this Lease shall be pro-rated as of the Lease termination date.
SECTION 3.04. Right to Contest Taxes. Notwithstanding anything to the contrary
herein contained, if Tenant reasonably deems any Tax excessive or illegal, Tenant may defer
payment thereof so long as the validity or the amount thereof is contested by Tenant with
diligence and in good faith; provided, that if at any time payment of the whole of such Tax
shall become necessary to prevent a tax sale conveying the Land and Building or any portion
thereof because of non-payment, then Tenant shall pay the same in sufficient time to prevent
delivery of such tax deed.
SECTION 3.05. Contest at Tenant's Expense. Tenant, in the name of Landlord or of
Tenant, or both, may contest the validity or amount of any Tax, whether before or after
payment, and Landlord agrees that it will, at Tenant's expense, cooperate with Tenant in any
such contest to such extent as Tenant may reasonably request; however, Landlord shall not
be subject to any liability for the payment of any costs and expenses in connection with any
proceeding brought by Tenant, and Tenant shall indemnify and hold harmless Landlord from
any such costs or expenses. Tenant shall be entitled to any refund of any such Tax and
penalties or interest thereon which have been paid by Tenant.
SECTION 3.06. Evidence of Tax Due. The certificate, advice or bill regarding the
nonpayment of any Tax of the appropriate official designated by law to make or issue the
same or to receive payment of any such Tax, shall be prima facie evidence that such Tax
was due and unpaid at the time of the making or issuance of such certificate, advice or bill.
SECTION 3.07. Taxes and Impositions Payable by Landlord. Tenant shall not be
required to pay any of the following Taxes which shall be imposed against Landlord by any
governmental authority, whether federal, state, county, city, municipal, or otherwise:
(a) any estate, inheritance, devolution, succession, transfer, legacy
or gift tax that may be imposed upon or with respect to any transfer (other than a conveyance
7
by Landlord to Tenant pursuant to the provisions of Section 11.02) of Landlord's
interest in the Land and Building;
(b) any capital stock tax or other tax imposed against
Landlord for the privilege or franchise of doing business; and
(c) any income tax or gross receipts tax levied upon or against the
income of Landlord, including any rental income derived by Landlord from the Land and
Building.
Subject to the provisions of subsections (a) through (c) above, nothing in this Article Three
shall relieve Tenant of the obligation for the payment of any gross sales,
occupational license, privilege, excise or other present or future tax, license, fee or
other charge imposed against Landlord by any governmental authority, whether
federal, state, county, city, municipal or otherwise, in respect of the ownership, leasing,
use, occupation, operation, maintenance, repair or rebuilding of the Land and Building or
any portion thereof
ARTICLE FOUR
Use and Compliance with Laws
SECTION 4.01. Use of Premises. During the term of this Lease, Tenant shall have the
right to operate any lawful business at the Premises provided all necessary governmental
approvals are obtained by Tenant for the operation of said business.
SECTION 4.02. Compliance with Law. Tenant shall promptly comply, or cause
compliance, with all laws and ordinances and the orders, rules, regulations and requirements
of all federal, state, county and municipal governments and appropriate departments,
commissions, boards and officers thereof, foreseen or unforeseen, ordinary or extraordinary,
and whether or not within the present contemplation of the parties hereto or involving any
change of governmental policy and irrespective of the cost thereof, which may be applicable
to the Land and Building, including, without limitation, the fixtures and equipment thereof
and the sidewalks and curbs, if any, adjoining the Land and Building or the use of the Land
and Building. Subject to the representations and warranties of Landlord herein, Tenant
accepts the Land and Building "as is" in its actual condition as of the date of this Lease, and
assumes all risks, if any, resulting from any present or future latent or patent defects therein.
Notwithstanding the foregoing, Landlord shall be responsible for and shall pay all costs and
expenses of correcting or remediating any violations of laws, rules, regulations or other
governmental requirements that exist on the date of this Lease.
SECTION 4.03. Right to Contest. Tenant shall have the right to contest by appropriate
legal proceedings, without cost or expense to Landlord, the validity of any law, ordinance,
order, rule, regulation or requirement of the nature herein referred to, provided, however,
8
that Tenant shall indemnify Landlord and hold Landlord harmless against any and all
liability, loss and damage which Landlord may sustain by reason of Tenant's failure or delay
in complying therewith. Landlord shall have the right, but shall be under no obligation, to
contest by appropriate legal proceedings, at Landlord's expense, any such law, ordinance,
rule, regulation or requirement, or to intervene in any proceeding involving Tenant.
SECTION 4.104. No Abatement. Except as otherwise expressly provided herein,
Tenant shall claim or receive no abatement, diminution or reduction of the Base Rent, or of
any Additional Rent or other charges required to be paid by Tenant pursuant to the terms of
this Lease for any inconvenience, interruption, cessation or loss of business or otherwise
caused, directly or indirectly, by any present or future laws, rules, requirements, orders,
directions, ordinances or regulations of the United States of America, or of the State, County
or city governments, or of any other municipal, governmental or lawful authority
whatsoever, or by priorities, rationing or curtailment of labor or materials, or by war, civil
commotion, strike or riot, or any matter or thing resulting therefrom, or by any other cause
or causes beyond the control of Landlord, nor shall this Lease be affected by any such
causes, except: to the extent the same result from the failure of Landlord to correct violations
of law as provided in Section 4.02 above. No diminution of the amount of space used by
Tenant caused'. by legally required changes in the construction, equipment, operation or use
of the Land and Building shall entitle Tenant to any reduction or abatement of Base Rent,
Additional Rent or any other charges required to be paid by Tenant hereunder, except to the
extent the same result from the failure of Landlord to correct violations of law as provided in
Section 4.02 above. The provisions of this Section 4.04 are expressly made subject to the
provisions of Article Eleven hereof.
ARTICLE FIVE
Public Utility Charges
SECTION 5.01. Tenant's Obligations. Tenant shall pay or cause to be paid all charges
for gas, water, sewer, electricity, light, heat, power, telephone or other communication
service or other utility or service used, rendered or supplied to, upon or in connection with
the Land and Building throughout the Term, and to indemnify Landlord and save it
harmless against any liability or damages on such account. Tenant shall provide to
Landlord evidence of the payment of the foregoing on a timely basis from time to time
and/or at the request of Landlord, as the case may be. Tenant shall also procure or cause to
be procured any and all necessary permits, licenses or other authorizations required for the
lawful and proper use, occupation and operation of the Land and Building and for the
lawful and proper installation and maintenance upon the Land and Building of wires, pipes,
conduits, tubes and other equipment and appliances for use in supplying any such service to
or upon the Land and Building. Landlord is not, nor shall it be, required to furnish to Tenant
or any other occupant of the Land and Building, during the Term, any water, sewer, gas,
heat, electricity, light, power or any other facilities, equipment, labor, materials or services
of any kind whatsoever.
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ARTICLE SIX
Indemnification and Non-Liability of Landlord
SECTION 6.01. Indemnification. Tenant shall indemnify and save harmless Landlord
against and from
(a) any and all claims by or on behalf of any person, firm or
corporation, arising from the conduct or management of or from any work or thing
whatsoever done in or about the Land and Building during the Term, except to the extent
resulting from the actions or inactions of Landlord or its agents or contractors;
(b) any and all claims arising from (1) any condition of the
Building, or of any vaults, passageways or spaces therein or appurtenant thereto, any breach
or default on the part of Tenant in the performance of any covenant or agreement on the part
of Tenant to be performed, pursuant to the terms of this Lease, except to the extent resulting
from the actions or inactions of Landlord or its agents or contractors, iii any act or
negligence of Tenant, or any of its agents, contractors, servants, employees or licensees, or
(iv) any accident, injury or damage whatsoever caused to any person, firm or corporation
(other than those caused by Landlord or its servants and employees) occurring during the
Term, in or about the Land and Building, or upon or under the sidewalks and the land
adjacent thereto, and
(c) all costs, reasonable counsel fees, expense and liabilities
incurred in or about any such claim, action or proceeding brought thereon;
and in case any action or proceeding shall be brought against Landlord by reason of any
such claim, Tenant upon notice from Landlord shall resist or defend such action or
proceeding by counsel. Notwithstanding the foregoing, Landlord shall not be indemnified
against or from and Landlord shall indemnify Tenant from and against, any claim arising out
of or resulting from any act or failure to act by Landlord, its agents or contractors which
constitutes negligence or willful misconduct of Landlord, its agents or contractors.
SECTION 6.02. Costs and Fees. Tenant shall pay, and indemnify Landlord against, all
legal costs and charges, including counsel fees, lawfully and reasonably incurred in
obtaining possession of the Land and Building after Default or upon expiration or earlier
termination of the Term, in collecting any amounts due hereunder after default, or in
enforcing any other right of Landlord under this Lease after default.
SECTION 6.03. Non-Liability of Landlord. Landlord shall not be responsible or liable
to Tenant, or any person, firm or corporation claiming by, through or under Tenant for, or by
reason of any defect in the Building or in any engines, boilers, elevators, machinery, electric
wiring or fixtures, or other equipment or apparatus or appliances in such building, or for any
failure or defect of water, heat, electric light or power supply, or of any apparatus or
appliance in connection therewith, or from any injury or loss or damage to person or,
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property resulting therefrom, and Landlord shall not be responsible or liable to Tenant, or
any person, firm or corporation claiming by, through or under Tenant, for any injury, loss or
damage to any persons or to the Land and Building, or to any property of Tenant, or of any
other person, contained in or upon the Land and Building, caused by or arising or resulting
from the electric wiring, or plumbing, water, steam, sewerage, or other pipes, or by or from
any machinery or apparatus, or by or from any defect in or leakage, bursting or breaking of
the same, or by or from any leakage, running or overflow of water or sewerage in any part of
said Land and Building, or by or from any other defect whatsoever, or by or from any injury
or damage caused by, arising or resulting from lightning, wind, water, snow or ice, in, upon
or coming through or falling from the roof, skylight, trapdoors, windows or otherwise, or by
or from other actions of the elements, or from any injury or damage caused by or arising, or
resulting from acts or negligence of any occupant or occupants (other than Landlord and its
servants and employees) of adjacent, contiguous or neighboring premises, or any other cause
whatsoever. Notwithstanding the foregoing, this Section shall not be applicable to any
instances where Landlord failed to perfonrn its obligations herein.
ARTICLE SEVEN
Maintenance and Repairs, Covenant Against Waste and Right of Inspection
SECTION 7.01. Maintenance and Repairs. From the date that existing tenant vacates
the Premises, Tenant shall at no expense whatsoever to Landlord, take good care of the
Land, the Building, and the other improvements now or hereafter erected thereon (including,
without limitation, the heating, ventilation and air conditioning plants and systems, lighting
and electrical systems, and plumbing, and all fixtures appertaining thereto and the sidewalks
and curbs adjacent thereto) and subject to the rights of Tenant under Article Nine of this
Lease, shall not do or suffer any waste with respect thereto, and Tenant shall (i) promptly
make all repairs, interior and exterior, structural and non-structural, ordinary as well as
extraordinary, foreseen as well as unforeseen, necessary to keep the Building and
improvements in good and lawful order and condition, subject to ordinary wear and tear, and
(ii) irrespective of the availability or sufficiency of any fire or other insurance proceeds
payable with respect thereto pursuant to Article Ten hereof, restore the same, following any
damage or destruction by reason of any fire or other casualty, or by reason of any settling of
the Building or improvements, to such extent that, upon the completion of such restoration
work, the value of the Building and improvements shall be substantially equal to the value
thereof immediately prior to such damage or destruction. When used in this Article, the term
"repairs" shall include replacements, restoration and/or renewals when necessary. The
provisions and conditions of Article Nine applicable to changes or alterations shall similarly
apply to repairs required to be done by Tenant under this Article. Tenant shall keep and
maintain all portions of the Land and the sidewalks adjoining the same in a clean and
orderly condition, free of accumulation of dirt, rubbish, snow and ice, and Tenant shall not
permit or suffer any overloading of the floors of the Building.
SECTION 7.02. Access. Tenant shall permit Landlord and its authorized
representatives to enter the Land and Building at all reasonable times and upon reasonable
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prior notice during usual business hours to exhibit or inspect the same and to make any
necessary repairs to the Land and Building and perform any work therein that may be
necessary to comply with any laws, ordinances, rules, regulations or requirements of any
public authority, or that may be necessary to prevent waste or deterioration in connection
with the Land and Building not otherwise permitted by this Lease, which Tenant is
obligated, but has failed, to make, perform, or prevent, as the case may be. Nothing in this
Section 7.02 shall imply any duty upon the part of Landlord to do any such work or to make
any alterations, repairs (including, but not limited to, repairs and other restoration work
made necessary due to any fire or other casualty and irrespective of the sufficiency or
availability of any fire or other insurance proceeds which may be payable in respect thereof),
additions or improvements to the Land or Building, of any kind whatsoever, unless
specifically provided in this Lease that Landlord is responsible therefor. The performance
thereof by Landlord shall not constitute a waiver of Tenant's default in failing to perform the
same. Landlord shall not in any event be liable for inconvenience, annoyance, disturbance,
loss of business or other damage of Tenant or any other occupant of the Land and Building
or part thereof, by reason of making repairs or the performance of any work on the Land or
Building or on account of bringing material, supplies and equipment into or through the
Land during the course thereof and the obligations of Tenant under this Lease shall not
thereby be affected in any manner whatsoever. Landlord shall, however, in connection with
the doing of any such work cause as little inconvenience, annoyance, disturbance, loss of
business or other damage to Tenant or any such other occupant as may be reasonably
possible in the circumstances.
ARTICLE EIGHT
Mechanics' Liens
SECTION 8.01. Prohibition Against Liens.
(a) Tenant shall not suffer or permit any liens to attach or
exist against the Land and Building or any part thereof by reason of any work, labor,
services or materials done for, or supplied, or claimed to have been done for, or supplied to,
Tenant or anyone holding the Land and Building or any part thereof through or under
Tenant. If any such lien, claim or complaint shall at any time be filed against the Land
or Building, Tenant shall cause the same, and any related notice of intention to perform
labor or furnish materials, to be discharged of record within thirty (30) days after the date
of filing the same, by either payment, deposit or bond. If Tenant shall fail to discharge any
such lien within such period, then, in addition to any other right or remedy of Landlord,
Landlord may, but shall not be obligated to, procure the discharge of the same either by
paying the amount claimed to be due by deposit in court or bonding, and/or Landlord shall
be entitled, if Landlord so elects, to compel the prosecution of an action for the foreclosure
of such lien by the lienor and to pay the amount of the judgment, if any, in favor of the
lien or with interest, costs and allowances. Any amount paid or deposited by Landlord for
any of the aforesaid purposes, and all legal and other expenses of Landlord, including
reasonable, counsel fees, in defending any such action or in or about procuring the
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discharge of' such lien, with all necessary disbursements in connection therewith, together
with interest thereon at the rate of fifteen percent (15%) per annum from the date of payment
or deposit, shall become due and payable forthwith by Tenant to Landlord, or, at the option
of Landlord, shall be payable by Tenant to Landlord as Additional Rent, as provided in
Article Twelve hereof.
ARTICLE NINE
Alterations
SECTION 9.01. Consent Required. Tenant will make no structural additions to the
Land or Building without the consent of Landlord, which consent shall not be unreasonably
withheld or delayed; provided that Tenant may renovate the Building's interior without the
prior consent of the Landlord as long as such renovations do not reduce the value of the
Building.
SECTION 9.02. Accession to Realty. All alterations made by Tenant to any of the
Land and Building, except to the extent such alterations can be removed and the Land and
Building returned to its state and condition immediately prior to such alteration, reasonable
wear and tear excepted, and except any of Tenant's trade fixtures, shall immediately be and
become part of the Land and Building and the sole and absolute property of Landlord and
shall remain upon and be surrendered with the Land and Building at the expiration or other
termination of' this Lease. If Tenant, at the expiration or other termination of this Lease,
removes any alterations or trade fixtures from the Land or Building, Tenant shall restore the
Land and Building to its state and condition immediately prior to such alteration, reasonable
wear and tear excepted.
ARTICLE TEN
Insurance and Damage
SECTION 10.01. Insurance.
(a) Tenant shall keep or cause the Land, the Building and the
personal property located therein, and the Other Improvements to be kept continuously
insured, to at least the extent of its full insurable value without co-insurance, against loss or
damage by fire, with extended coverage, vandalism and malicious mischief, and shall
maintain comprehensive general public liability, property damage and worker's
compensation insurance, if applicable, all such insurance to be with insurance companies
reasonably satisfactory to Landlord. Insurance coverages shall be in amounts not less than as
follows: property damage insurance on Buildings and personal property located within the
Buildings at their full insurable value; public liability insurance One Million Dollars
($1,000,000), with excess liability coverage of not less than One Million Dollars
($1,000,000). All policies shall be underwritten by an Insurance company holding a rating of
A+ Class XII or better by Best's Insurance Reports or a rating otherwise satisfactory to
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Landlord, shall be in form satisfactory to Landlord, shall be maintained in full force and
effect, shall be delivered to Landlord, with premiums prepaid for at least six (6) months, as
collateral security for payment of the rentals due hereunder, shall be endorsed in favor of
Landlord and with a standard mortgagee clause in favor of Landlord not subject to
contribution in form and substance satisfactory to Landlord, and shall provide for at least
thirty (30) days' prior notice of cancellation or modification to Landlord. If the insurance or
any part thereof shall expire, or be withdrawn, or become void or unsafe by reason of
Tenant's breach of any condition thereof, or become void or unsafe by reason of the failure
or impairment of the capital of any company in which the insurance may then be carried,
Tenant shall place new insurance on the Land meeting the foregoing requirements. All
renewal policies, with premiums paid for at least six (6) months, shall be delivered to
Landlord or Landlord's mortgage lender at least thirty (30) days before expiration of the old
policies. In the event of loss, Tenant will give immediate notice thereof to Landlord, and
Tenant may make proof of loss if not made promptly by Tenant and Landlord is hereby
authorized by Tenant, at Landlord's election, either to settle or allow Tenant to agree with
the insurance company or companies on the amount to be paid upon the loss.
(b) If there is total destruction or destruction so substantial that it
makes reconstruction of the Buildings on the Land impractical by fire, vandalism, malicious
mischief or other casualty occurs, then Tenant can terminate the Lease. In that event, all
insurance on the Building shall be payable to Landlord and this Lease shall terminate. All
insurance proceeds payable for tangible personal property in the premises shall be payable to
Tenant. In the event that there is total destruction of the Buildings on the Land and Tenant
has elected not to terminate the Lease, then it is agreed that Landlord will reconstruct the
Premises and all insurance proceeds shall be used for said purposes and if the cost of said
reconstruction exceeds the amount of the insurance proceeds, said excess costs shall be the
responsibility of Tenant.
(c) If any fire or other casualty causes a partial destruction of the
Buildings on the Land, all insurance proceeds shall be used to restore or rebuild Buildings to
substantially the same character as prior to such damage or destruction. If the estimated cost
of repairs exceeds Fifty Thousand Dollars ($50,000), Tenant and Landlord will obtain
contractor's sworn statements and other evidence of cost for such rebuilding or restoration as
may be reasonably required under the terms of this Lease. Payment to said contractor shall
be made from said insurance proceeds with no payment made prior to the final completion
of the work exceed Ninety Percent (90%) of the value of the work performed from time to
time, and at all times the undisbursed balance of said proceeds remaining in the joint control
of Landlord and Tenant to pay for the cost of completion of the work free and clear of all
liens. If the cost of said repairs exceeds the insurance proceeds, said excess costs shall be the
responsibility of Tenant. All insurance proceeds, if any remaining after completion of
repairs or restoration shall be the property of Landlord.
(d) If Tenant shall at any time be in Default of any of its
obligations hereunder, all policies of insurance referred to in this Section 10.01 and all
renewals thereof, including all right, title and interest of Tenant thereunder, shall become the
14
absolute property of Landlord, and in such event Tenant hereby agrees that any values
available under such policies or renewals, upon cancellation or termination, whether in the
form of return of premiums or otherwise, shall be payable to Landlord.
(e) Anything contained herein to the contrary notwithstanding,
Landlord agrees that Tenant has the right to settle any claim the proceeds of which are less
than Twenty'Thousand Dollars ($20,000) without the participation of Landlord and shall use
all such proceeds for repair, restoration or reconstruction of the Land and Building. Tenant
shall furnish Landlord with copies of plans, specifications, work orders and receipts in
connection with such repair, restoration or reconstruction.
SECTION 10..02. Cooperation in Actions. Landlord and Tenant each will cooperate
with the other, to such extent as such other party may reasonably require, in connection with
the prosecution or defense of any action or proceeding arising out of, or for the collection of
any insurance moneys that may be due in the event of, any loss or damage, and that it will
execute and deliver to such other party such instruments as may be required to facilitate the
recovery of any insurance moneys.
SECTION 10.03. Notice of Casualty. Tenant shall give prompt notice to Landlord with
respect to all fires or other casualties occurring upon the Land or Building.
ARTICLE ELEVEN
Condemnation
SECTION 11.01. Condemnation. If the Land and Building, or any part thereof, shall be
taken in condemnation proceedings or by exercise of any right of eminent domain
or by agreement between Landlord, Tenant and those authorized to exercise such right
(hereinafter collectively called "condemnation proceedings"), Landlord and Tenant shall
have the right to participate in any such condemnation proceedings and the award that may
be made in any such proceeding or the proceeds thereof (including any award for
consequential damages or for the taking of rights in, under or above the streets adjoining
the Land, or the rights and benefits of light, air or access to said streets, or for the taking of
space, or rights therein, below the surface of, or above, the Land), except for such portion
thereof as is awarded specifically to Tenant for its interest in the Land and/or Building, shall
be deposited with Landlord and distributed in the manner set forth herein The parties agree
to execute any and all further documents that may be required in order to facilitate collection
of any award or awards and the making of any such deposit with the Landlord.
SECTION 11.02. Total Condemnation.
(a) If title to the fee of the whole or materially all of the Land and
Building shall be taken or condemned by any competent authority or by agreement among
Landlord, Tenant and such authority, for any public or quasi-public use, this Lease shall
cease and terminate, and all Base Rent, Additional Rent and other charges paid or payable
15
by Tenant hereunder shall be apportioned, as of the date of vesting of title in such
condemnation proceedings, and the total award, except for that portion thereof awarded
specifically to Tenant, all as described in Section 11.01 above shall be retained by Landlord.
(b) For the purposes of this Section, a taking of the whole or
materially all of the Land and Building shall be deemed to have occurred if the portion of
the Land and Building not so taken, in Landlord's and Tenant's reasonable, good faith
judgment, cannot be reconstructed or repaired so as to constitute a facility usable by Tenant
for the purposes which the Land and Building were being used by Tenant immediately prior
to such taking.
SECTION 11.03. Partial Condemnation. If at any time during the term of this Lease,
title to less than the whole or materially all of the Land and Building shall be taken as
aforesaid, all the award or proceeds collected by Landlord pursuant to Section 11.01
hereof shall be held by Landlord and applied and paid over toward the cost of
demolition, repair and restoration, substantially in the same manner and subject to the
same conditions as those provided in Section 10.01 hereof with respect to insurance and
other monies and provided no Event of Default shall have occurred. Any balance remaining
in the hands of Landlord after payment of such costs of demolition, repair and restoration as
aforementioned shall be the sole property of Landlord. Rent shall abate for the portion of the
Building and/or Land taken as aforesaid.
SECTION 11.04. Temporary Condemnation. Tenant further agrees that if, at any time
after the date hereof, the whole or any part of the Land and Building or of Tenant's interest
under this Lease shall be taken or condemned by any competent authority for its or their
temporary use or occupancy, this Lease shall not terminate by reason thereof and Tenant
shall continue to pay, in the manner and at the times herein specified, subject to abatement for
the portions of the Building and/or Land not available for Tenant's use during such period,
the amounts of the Base Rent and all Additional Rent and other charges payable by Tenant
hereunder, and, except only to the extent that Tenant may be prevented from so doing
pursuant to the terms of the order of the condemning authority, to perform and observe all of
the other terms, covenants, conditions and obligations hereof upon the part of Tenant to be
performed and observed, as though such taking had not occurred. In the event of any taking
referred to in this Section 1 1.04, the entire amount of any award made for such taking,
whether paid by way of damages, rent or otherwise, shall be paid to and held by Landlord
Tenant shall receive a credit against Base Rent otherwise due hereunder in an amount equal
to the net amount of such award; provided, that if such taking by condemnation proceedings
results in changes and alterations to the Land and Building, or any part thereof, which would
necessitate an expenditure to restore the Land and Building, or any part thereof, to its former
condition, then such portion of the award or proceeds as in Landlord's reasonable estimation
shall be necessary to cover the cost of restoration shall be retained by Landlord, without
application or credit as aforesaid, and be applied and paid over toward the restoration of the
Land and Building, or any part thereof, to its former condition. Tenant covenants that, upon
the termination of any such period of temporary use or occupancy, it will, whether or not
condemnation proceeds retained by Landlord for such purpose are sufficient, restore the
16
Land and Building, as nearly as may be reasonably possible, to the condition in which the
same were immediately prior to such taking.
ARTICLE TWELVE
Landlord's Right to Perform Tenant's Covenants
SECTION 12.01. Landlord's Right. If Tenant shall at any time fail to pay any Tax
pursuant to the provisions of Article Three hereof, or to take out, pay for, maintain or deliver
any of the insurance policies provided for in Article Ten hereof; or shall fail to make any
other payment or perform any other act which Tenant is obligated to make or perform under
this Lease, then after ten (10) days' written notice to and demand upon Tenant and without
waiving, or releasing Tenant from, any obligations of Tenant in this Lease contained,
Landlord may, but shall not be obligated to, pay any such Tax, effect any such insurance
coverage and pay premiums therefor, and may make any other payment or perform any
other act which Tenant is obligated to perform under this Lease, in such manner and to such
extent as shall be necessary, and, in exercising any such rights, pay necessary and incidental
costs and expenses, employ counsel and incur and pay reasonable attorneys' fees. All sums
so paid by Landlord and all necessary and incidental costs and expenses in connection with
the performance of any such act by Landlord, together with interest thereon at the rate of
fifteen percent (15%) per annum from the date of the making of such expenditure by
Landlord, shall be deemed Additional Rent hereunder and, except as otherwise in this Lease
expressly provided, shall be payable to Landlord on demand or at the option of Landlord
may be added to any rent then due or thereafter becoming due under this Lease, and Tenant
covenants to pray any such sum or sums with interest as aforesaid and Landlord shall have
(in addition to any other right or remedy of Landlord) the same rights and remedies in the
event of non-payment thereof by Tenant as in the case of default by Tenant in the payment
of the Base Rent.
ARTICLE THIRTEEN
Default; Landlord's Remedies
SECTION 13.01. Events of Default; Termination. The occurrence of each of the
following shall be an Event of Default hereunder:
(a) Tenant shall fail to pay any installment of the Base Rent
within fifteen (15) days after written notice of nonpayment from Landlord, provided,
however, that in the event Tenant shall have received two (2) such written notices within
any period of twelve consecutive months, then Tenant shall thereafter, during the remainder
of said twelve-month period, be in default hereunder whenever Tenant shall fail to pay any
installment of the Base Rent when due; or
(b) Tenant shall fail to pay any item of Additional Rent or any
other charge required to be paid by Tenant hereunder (other than the payment of the rental
17
as set forth in said Section 2.01), and such failure shall continue for ten (10) days after
written notice thereof from Landlord to Tenant;
(c) Tenant shall fail to perform or observe any other requirement
of this Lease (not hereinbefore in this Section 13.01 specifically referred to) on the part of
Tenant to be performed or observed, and such failure shall continue for thirty (30) days after
notice thereof from Landlord to Tenant, or, if such event of default is of such a nature that it
cannot, with due diligence, be cured within a period of thirty (30) days, if Tenant shall have
failed to commence the curing of such default within the period of thirty (30) days referred
to above or shall thereafter fail to proceed with all due diligence to complete the curing of
such default.
SECTION 13.02. Late Charges. If any installment of Base Rent is not paid within
ten (10) days of its due date thereof, Tenant shall pay to Payee a late charge of two percent
(2%) for each dollar of such delinquent payment.
SECTION 13.03. Landlord's Remedies.
(a) Upon the occurrence of an Event of Default, Landlord shall
have the right., if Landlord so elects, to give Tenant written notice of the termination of this
Lease as of a date specified in such notice. Upon the giving of such notice (i) the term of this
Lease and the estate hereby granted shall expire and terminate on the date so specified as
fully and completely and with the same effect as if such date were the date originally fixed
by this Lease for the expiration of the then current term, and (ii) all rights of Tenant under
this Lease shall expire and terminate but Tenant shall remain liable as hereinafter provided.
(b) Upon the occurrence of an Event of Default, Landlord shall
have the immediate right (whether or not this Lease shall have been terminated pursuant to
Subparagraph (a)), to re-enter and repossess the Land and Building or any part thereof by
summary proceedings, ejectment, self-help, or otherwise, and the right to remove all persons
and property therefrom. Landlord shall be under no liability for or by reason of any such
reentry, repossession or removal, nor shall any such action constitute an election on
Landlord's part: to terminate this Lease unless written notice of such intention is given to
Tenant pursuant to Subparagraph (a).
(c) Upon the occurrence of an Event of Default (whether or not
this Lease has been terminated pursuant to Subparagraph (a)), Landlord will use its best
efforts to re-let the Land and Building or any part thereof, in the name of Tenant or Landlord
or otherwise, for such term or terms (which may be greater or less than the period which
would otherwise have constituted the balance of the term of this Lease) and on such
conditions (which may include concessions or free rent) and for such uses as Landlord may,
in its discretion as to all such matters, deem prudent. Landlord may collect and retain all
rents payable by reason of such re-letting but giving credit to Tenant for the amount of rent
so collected by Landlord.
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(d) No termination of this Lease pursuant to Subparagraph (a) or
by operation of law or otherwise, and no reentry, repossession or re-letting of the Land and
Building or any part thereof, shall relieve Tenant of any of Tenant's liabilities and
obligations under this Lease, all of which shall survive such termination, re-entry,
repossession., or re-letting.
(e) Upon the occurrence of an Event of Default, Landlord shall be
entitled by notice to Tenant to declare immediately due and payable, as if by the terms of
this Lease all such amounts were payable in advance, the whole Base Rent for the entire
balance of the Term, less the fair rental value of the Premises, together with all Additional
Rent and other sums required to be paid by Tenant under the terms of this Lease and all
"Additional Damages" as hereinafter defined through the date of the Event of Default,
and Landlord thereupon may proceed immediately to collect any or all such amounts by
any or all of the following means:
(i) Distraint or other levy;
(ii) action at law;
(iii) confession of judgment as hereinafter provided;
or like proceeding; or (iv) filing of proof of claim in any bankruptcy, insolvency
(v) any other remedy at law or equity available to
Landlord at the time.
Nothing contained in the preceding sentence shall require Landlord to
exercise the right of acceleration stated therein, and Landlord shall be entitled to elect
instead, from time to time, to proceed to collect, by any of the means set forth in clauses
(i) through (v) of the preceding sentence,) only particular amounts due by reason of an
Event of Default. "Additional Damages," as used in this Subparagraph (e), shall mean the
sum of the following:
(1) all reasonable attorneys' fees incurred by
Landlord in collecting amounts due from Tenant under this Lease or otherwise incurred by
reason of the occurrence of an Event of Default;
(2) all court costs and officer's commissions for
collection, and all costs of re-entry and repossession, removal of property, distraint or sale of
property, or other levy;
(3) watchmen's wages and other expenses of
protecting the Land and Building from vandalism or other damage; and
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(4) all other reasonable costs incurred by Landlord
by reason of the occurrence of an Event of Default.
(f) UPON THE OCCURRENCE OF AN EVENT OF DEFAULT
OR IF THE TENANT SHALL FAIL TO GIVE UP POSSESSION OF THE LAND AND
BUILDING OR ANY PART THEREOF AT ANY TIME WHEN THE LANDLORD
BECOMES ENTITLED THERETO UNDER ANY OF THE PROVISIONS OF THIS
LEASE, ANY ATTORNEY MAY IMMEDIATELY THEREAFTER, AS ATTORNEY
FOR THE TENANT, AT THE SOLE REQUEST OF THE LANDLORD, APPEAR FOR
THE TENANT AND ALL PERSONS CLAIMING UNDER THE TENANT IN ANY
COMPETENT COURT AND CONFESS JUDGMENT IN EJECTMENT (WITHOUT
STAY OF EXECUTION OR APPEAL) IN FAVOR OF THE LANDLORD AND ALL
PERSONS CLAIMING UNDER THE LANDLORD AND AGAINST THE TENANT AND
ALL PERSONS CLAIMING UNDER THE TENANT FOR POSSESSION OF THE LAND
AND BUILDING, WITHOUT ANY LIABILITY ON THE PART OF THE SAID
ATTORNEY, FOR WHICH THIS SHALL BE A SUFFICIENT WARRANT, AND
THEREUPON A WRIT OF POSSESSION WITH CLAUSE FOR COSTS, OR OTHER
PROCESS FOR SIMILAR PURPOSES, MAY ISSUE FORTHWITH WITHOUT ANY
PRIOR WRIT OR PROCEEDING WHATSOEVER, AND THE TENANT AND ALL
PERSONS CLAIMING UNDER THE TENANT HEREBY RELEASE TO THE
LANDLORD AND ALL PERSONS CLAIMING UNDER THE LANDLORD ALL
ERRORS AND DEFECTS WHATSOEVER IN ENTERING SUCH ACTION OR
JUDGMENT, OR IN CAUSING SUCH WRIT OF POSSESSION OR OTHER PROCESS
TO BE ISSUED, OR IN ANY PROCEEDING THEREON OR CONCERNING THE
SAME, AND AGREE THAT NO WRIT OF ERROR OR OBJECTION OR EXCEPTION
SHALL BE MADE OR TAKEN THERETO. IF A COPY OF THIS LEASE, VERIFIED
BY AFFIDAVIT, IS FILED IN SAID ACTION, IT SHALL NOT BE NECESSARY TO
FILE THE ORIGINAL AS A WARRANT OF ATTORNEY, ANY LAW OR RULE OF
COURT TO THE CONTRARY NOTWITHSTANDING. THIS WARRANT OF
ATTORNEY SHALL NOT BE EXHAUSTED BY ONE EXERCISE THEREOF, AND
SHALL REMAIN IN FORCE AND SHALL BE OPERATIVE FOR SUCCESSIVE
EXERCISES THEREOF, FROM TIME TO TIME AS THE NEED MAY ARISE, NOT
ONLY WITH RESPECT TO THE TENANT BUT ALSO WITH RESPECT TO ALL
PERSONS CLAIMING UNDER THE TENANT.
Judgment may be entered in accordance with Subparagraph (f) or (g)
above on the basis of an affidavit made on Landlord's behalf and setting forth the relevant
facts, of which facts such affidavit shall be conclusive evidence.
(g) In the event of a termination of this Lease prior to the date of
expiration herein originally fixed, Tenant hereby waives all right to recover or regain
possession of the Land and Building, to save forfeiture by payment of rent due or by other
performance of the conditions, terms or provisions hereof, and, without limitation of or by
the foregoing, Tenant waives all right to reinstate or redeem this Lease notwithstanding any
provisions of any statute, law or decision now or hereafter in force or effect and Tenant
20
waives all right to any second or further trial in summary proceedings, ejectment or in any
other action provided by any statute or decision now or hereafter in force or effect.
(h) Tenant waives in favor of Landlord all rights under the Act of
Assembly of April 6, 195 1, P.L. 69 Art. V, Sec. 501, and all supplements and amendments
thereto that have been or may hereafter be passed and authorizes the sale of any goods
distrained for rent at any time after five (5) days from said distraint without any
appraisement and/or condemnation thereof.
If proceedings shall be commenced by Landlord to recover possession
of the Land and Building, either at the end of the Term or by reason of an Event of Default
or otherwise, 'Tenant expressly waives all rights to notice in excess of five days required by
any Act of Assembly, including the Act of April 6, 19 5 1, P. L. 69, Art. V, Sec. 501 and
agrees that in either or any such case five (5) days' notice shall be sufficient. Without
limitation of or by the foregoing, Tenant hereby waives any and all demands, notices of
intention, and notice of action or proceedings which may be required by law to be given or
taken prior to any entry or re-entry by summary proceedings, ejectment or otherwise, by
Landlord, except as hereinbefore expressly provided with respect to five (5) days' notice.
(i) All remedies granted to Landlord by the terms of this Lease,
or by applicable statute or other principles of law or equity, shall be cumulative and not
exclusive, and the exercise of any such remedy shall not bar or delay the exercise of any
other such remedy.
SECTION 13.04. Tenant's Waivers. Tenant agrees that any notice to quit required by
law previous to proceedings to recover possession of the Land and Building or any notice of
demand for Rent on the day when such is due and the benefit of all laws granting stay of
execution, appeal, inquisition and exemption are hereby waived by the Tenant; provided,
however, that nothing in this paragraph shall be construed as a waiver of any notice
specifically mentioned or required by any other part of this Lease.
SECTION 13.05. Availability of All Remedies. No termination of this Lease, or taking
or recovering of possession of the Land and Building, or entry of any judgment either for
possession or for any money claimed to be due the Landlord, shall deprive the Landlord of
any other action against the Tenant for possession, or for any money due the Landlord
hereunder, whether as Rent, Additional Rent, or otherwise, or for damages hereunder.
SECTION 13.06. Non-Waiver of Landlord's Remedies. Failure of the Landlord or the
Tenant to exercise any right under the provisions of this Lease on any one or more occasions
shall not be construed as a waiver thereof on any subsequent occasion and recourse to any
one or more remedies granted by this Lease or by law shall not be deemed a waiver of or a
bar to any other remedy or remedies, it being the intent that remedies shall be cumulative
and not exclusive.
21
SECTION 13.07. Waiver of Right to Redeem. Tenant, for itself and any and all persons
claiming through or under Tenant, including its creditors, upon the termination of this Lease
and of the Term in accordance with the terms hereof, or in the event of entry of judgment for
the recovery of the possession of the Land and Building in any action or proceeding, or if
Landlord shall enter the Land and/or Building by process of law or otherwise, hereby waives
any right of redemption provided or permitted by any statute, law or decision now or
hereafter in force, and does hereby waive, surrender and give up all rights or privileges
which it or they may or might have under and by reason of any present or future law or
decision, to redeem the Land and Building or for a continuation of this Lease for the Term
hereby demised after having been dispossessed or ejected therefrom by process of law, or
otherwise. Tenant waives all right to trial by jury in any summary or other judicial
proceedings hereafter instituted by Landlord against Tenant in respect to the Land and
Building.
ARTICLE FOURTEEN
Quiet Enjoyment, Subordination
SECTION 14.01. Quiet Enjoyment. Tenant, upon paying the rent herein reserved, and
performing and observing the covenants, conditions and agreements hereof upon the part of
Tenant to be performed and observed, shall and may peaceably hold and enjoy the Land and
Building during the term hereof, without any interruption or disturbance from Landlord or
anyone claiming through Landlord, subject, however, to the terms of this Lease and subject
to A matters which now affect the Land and Building including without limitation, all
matters affecting title to the Land and Building, whether or not of record. This covenant
shall be construed as running with the land to and against subsequent owners and successors
in interest, and is not, nor shall it operate or be construed as, a personal covenant of
Landlord, except to the extent of Landlord's interest in said Land and Building and only so
long as such interest shall continue, and thereafter this covenant shall be binding only upon
such subsequent owners and successors in interest, to the extent of their respective interests,
as and when they shall acquire the same, and only so long as they shall retain such interest..
SECTION 14.02. Subordination. Landlord and Tenant hereby agree that,
notwithstanding the priority of recording, the lien of this Lease shall be and hereby is made
under, subject to, and subordinate to the lien of any and all mortgages now or hereafter
placed upon the Land and Building. Tenant agrees to execute, upon Landlord's request, any
document or documents deemed necessary by Landlord to document or record such
subordination Notwithstanding the foregoing, this Lease shall be subordinate only to any
such mortgage if the mortgagee thereunder executes and delivers to Tenant, in a form
suitable to Tenant, in its reasonable discretion, and proper for recording, a non-disturbance
agreement whereby the mortgagee acknowledges and agrees to be bound by the terms of this
Lease, including the option to purchase described herein. Landlord represents and warrants
that it will timely make all payments on any mortgages or other liens against the Premises
and if it fails to do so, Tenant shall have the right to make said payments and deduct the
amount of payments from the Base Rent payable to Landlord by Tenant.
22
ARTICLE FIFTEEN
Surrender of Land
SECTION 1:5.01. Surrender. Tenant shall, upon the expiration or termination of
this Lease for any reason whatsoever, surrender to Landlord the Land and Building, together
with all alterations thereto and replacements thereof which are then on the Land and/or
Building, in the same condition as on the date of this Lease, except for reasonable
wear and tear, loss from casualty and need for structural and capital repairs to the extent
such repairs are the Landlord's responsibility hereunder. Tenant also agrees to surrender all
tangible personal property located in the Premises owned by Tenant at the time of
termination.
ARTICLE SIXTEEN
Assignments, Subletting and Encumbrances
SECTION 16.01. Assignment, Sublease Tenant Obligations. Tenant shall not assign
mortgage or otherwise encumber this Lease, or sublet all or any part of the Land or
Buildings without the prior written consent of Landlord. Landlord agrees to consent to an
assignment or subletting provided that Tenant agrees to be responsible for all obligations
under this Lease despite said assignment or subletting.
ARTICLE SEVENTEEN
Purchase of Tangible Personal Property
SECTION 17.01. Purchase of Tangible Personal Property. Landlord is the owner of
certain items of tangible personal property used in the restaurant business and located at the
Premises (listing of said tangible personal property is attached to the existing Lease4
attached hereto and marked Exhibit A). Landlord agrees to sell said items of tangible
personal property to Tenant and the purchase price of Fifty Thousand Dollars ($50,000)
which shall be paid as follows:
(a) Sixteen Thousand Dollars ($16,000) at the time of execution
of this Agreement;
(b) The balance of Thirty-Four Thousand Dollars ($34,000) at the
time the existing tenant vacates the Premises. At the time of payment of the balance of
purchase price, Landlord shall deliver to Tenant a Bill of Sale transferring good and
marketable title to said tangible personal property.
23
ARTICLE EIGHTEEN
Option to Buy
SECTION 18.01. Option to Buy. Tenant shall have the option of purchasing the Land
and Buildings at a purchase price of One Million Two Hundred Fifty Thousand Dollars
($1,250,000) any time after eight (8) years from the date of execution of this Agreement and
for a period ending ten (10) years after the date of execution of this Agreement. If Tenant
does not exercise the option to buy within said ten (10) year period, then Tenant's option to
buy shall be void. Tenant shall exercise this option during the option period not later than
ninety (90) days prior to the end of the option period by giving written notice to Landlord.
Upon Tenant giving Landlord such written notice, an Agreement of Sale in the form of
Exhibit C attached hereto shall be entered into between Tenant and Landlord with a
settlement date within one hundred twenty (120) days from the date of exercise of option by
Tenant. Said Agreement of Sale shall provide that all realty transfer taxes shall be divided
equally between Landlord and Tenant and provide for a full payment of the purchase
price at the time of settlement. Said Agreement of Sale can contain a mortgage
contingency in an amount not to exceed the total purchase price.
If Tenant exercises the option to buy as provided in this paragraph, it
shall be entitled to a credit against the purchase price determined as follows:
(a) Ascertain the base monthly rental that was in effect during
year five(5) of this Lease;
(b) Determine the monthly rent paid by Tenant to Landlord
beginning on the first month of year six (six) and ending on the date of settlement;
(c) Determine the amount of rent that would have been paid
during the period as provided in paragraph (b) above if the rent had not increased after year
five (5);
(d) Subtracting the amount in subparagraph (c) above form the
amount determined in subparagraph (b) above shall be the credit towards the purchase price
that Tenant shall receive from Landlord at the time of settlement.
ARTICLE NINETEEN
Security Deposit
SECTION 19.01. Security Deposit. No security deposit is required by Landlord on
Tenant.
24
ARTICLE TWENTY
Miscellaneous
SECTION 20.01. Terms and Conditions as Covenants. Every term, condition,
agreement or provision contained in this Lease shall be deemed to be also a covenant.
SECTION 20.02. Cumulative Remedies. The specified remedies to which Landlord
may resort under the terms of this Lease are cumulative and are not exclusive of any other
remedies or means of redress to which Landlord may be lawfully entitled in case of any
breach or threatened breach by Tenant of any provision of this Lease.
SECTION 20.03. Failure to Enforce Not Waiver. The failure of Landlord to insist in
any one or more cases upon the strict performance of any of the terms, covenants,
conditions, provisions or agreements of this Lease or to exercise any option herein contained
shall not be construed as a waiver or a relinquishment for the future of any such ten-n,
covenant, condition, provision, agreement or option. A receipt and acceptance by Landlord
of rent or any other payment, or the acceptance of performance of anything required by this
Lease to be performed, with knowledge of the breach of any term, covenant, condition,
provision or agreement of this Lease, shall not be deemed a waiver of such breach, nor shall
any such acceptance of rent in a lesser amount than is herein provided for (regardless of any
endorsement on any check, or any statement in any letter accompanying any payment of
rent) operate or be construed either as an accord and satisfaction or in any manner other than
as a payment on account of the earliest rent then unpaid by Tenant, and no waiver by
Landlord of any term, covenant, condition, and no waiver by Landlord of any term,
covenant, condition, provision or agreement of this Lease shall be deemed to have been
made unless expressed in writing and signed by Landlord.
SECTION 20.04. Amendment. This Lease may not be changed orally, but only by
agreement in writing signed by the party against whom enforcement of the change,
modification or discharge is sought or by his agent.
SECTION 20.05. Estoppel Certificate. Tenant agrees at any time and from time to
time, upon not less than ten (10) days prior request by Landlord to execute, acknowledge and
deliver to Landlord a statement in writing certifying that this Lease is unmodified and in
full force and effect (or if there have been modifications that the same is in full force and
effect as modified and stating the modifications), and the dates to which the rent and other
charges have been paid in advance, if any, it being intended that any such 'statement
delivered pursuant to this Article may be relied upon by any prospective purchaser of the fee
or mortgage or assignee of any mortgage upon the fee of the Land.
SECTION 20.06. Memorandum of Lease. This Lease shall not be recorded. Any
attempted recording of this Lease by Tenant shall be an Event of Default hereunder. If
requested by Tenant, the parties hereto shall execute, for recording purposes, a
memorandum of this Lease in conformity with the law and practice of the Commonwealth
25
of Pennsylvania Any such memorandum shall include clauses granting Landlord power of
attorney to terminate such memorandum upon breach of this Lease by Tenant. A copy of
said Memorandum of Lease is attached hereto and marked Exhibit "D".
SECTION 20.07. Notice. All notices, requests and demands to or upon the respective
parties hereto shall be deemed to have been given or made when deposited in the United
States mails, postage prepaid, registered or certified mail, return receipt requested, or, in the
case of telegraphic notice, when delivered to the telegraph company, charges prepaid,
addressed as follows or to such other address as may be hereafter designated in writing
by the respective parties hereto:
If to Landlord: Panayiotis Tsirigotis and
Elika L., Inc.,
1664 Promise Lane
Macungie, PA 18062
with a copy to: Donald LaBarre, Jr., Esquire
Gross McGinley, LLP
P O Box 4060
Allentown, PA 18105-4060
If to Tenant: JEG CORP. and
Christos Politsopoulos & Anna Politsopoulos and
Dionysios Mihalopoulos and Martha Mihalopoulos
3127 South 4th Avenue
Whitehall, PA 18052
with a copy to: William G. Malkames, Esquire
509 Linden Street
Allentown, PA 18101
SECTION 20.08. Survival of Valid Terms. If any term or provision of this Lease or the
application thereof to any person or circumstance, shall to any extent be invalid or
unenforceable, the remainder of this Lease, or the application of such term or provision to
persons or circumstances other than those as to which it is invalid or unenforceable, shall not
be affected thereby, and each term and provision of this Lease shall be valid and be enforced
to the fullest extent permitted by law.
SECTION 20.09. Covenants to Bind and Benefit Respective Parties. Subject to the
provisions of Article Fifteen hereof, the terms, conditions, covenants, provisions and
agreements herein contained shall be binding upon and inure to the benefit of Landlord and
Tenant, and their respective heirs, personal representatives and permitted assigns.
SECTION 20.10. Captions and Headings. The captions and headings throughout this
Lease are for convenience and reference only and the words contained therein shall in no
26
way be held or deemed to define, limit, describe, explain, modify, amplify or add to the
interpretation., construction or meaning of any provision of or the scope or intent of this
Lease nor in any way affect this Lease.
SECTION 20.11. Governing Law. This Lease and the relative rights, privileges,
duties and obligations of the parties hereunder shall be governed by the laws of the
Commonwealth of Pennsylvania.
SECTION 20.12 Real Estate Commissions. Tenant represents and warrants to
Landlord that it did not deal with any agent or any other person or entity that would be
entitled to a commission as the result of this Lease and Option to Buy Agreement. In the
event that any commission is due as the result of this Agreement, it shall be the sole
responsibility of Landlord.
SECTION 20.13 CHRISTOS POLITSOPOULOS, ANNA POLITSOPOULOS,
DIONYSIOS MIHALOPOULOS and MARTHA MIHALOPOULOS jointly and severally
agree to personally guarantee Tenant's obligations under the terms of this Lease.
IN WITNESS WHEREOF, the parties hereto have caused these presents to be
executed by their respective officers thereunto duly authorized as of the day and year first
above written.
LANDLORD: ELIKA L., INC.
.- t
B,.
PANAYIOTIS TSI OTIS, PRESIDENT
PANA OTIS TSIH4R OTIS
TENANT: JEG CORP.
By:
27
GUARANTORS:
CHRISTOS POLITSOPOULOS
CX4?-?? ?4 j J-h
ANNA POLITSOPOULOS
D SIO ALOPOULOS
A&,a, uo:?,Q
MARTHA MIHALOPOULOS
W _\ WDOX\CLIENTS\ELIKAINC\ATHENA1002 9 3 2 40.DOC
28
Exhibit A
EXHIBIT "A"
DESCRIPTION OF DEMISED PREMISES
That certain "Eat'n Park" restaurant presently occupied by Tenant and known, as
of the date of this Lease, as 146 Sheraton Drive, Fairview Township, New Cumberland,
York County, Pennsylvania 17070.
Legal Description:
ALL THAT CERTAIN piece or parcel of land situate in the township of Fairview, County
of York and Commonwealth of Pennsylvania, more particularly bounded and described
as follows, to wit:
BEGINNING at an iron pin on the Northeast side of a 50 foot right=of--way at corner of
land of the Shell Oil Company and a distance of 150 feet measured along said right-of-
way from the Limekiln Road; thence by land of the Shell Oil Company Nort h 31 degrees
44minutes 47 seconds East a distance of 200 feet to an iron pin; thence by land of the
Henry N. Bowman Estate. the following two courses and distances:-(1)North 80 degrees
59 minutes 00 seconds East a distance of 80 feet to a concrete monument: (2) South 47
Degrees10 minutes 36 seconds East a distance of two hundred ninety-one and forty-
five hundredths (291.45) feet to a concrete monument at land of the Harrisburg Holding
Corporation ( the Sheraton Motor inn): thence by the same the following two courses
and distances; (1) South 80 degrees 59 minutes 00 seconds West a distance of one
hundred fifty-one and forty-four hundredths (151.44) feet to a hub (2) South 1 degree
51 minutes 30 seconds West a distance of forty and eighty-eight hundredths (40.88)
feet to a concrete monument on the aforementioned 50 foot right-of=way; thence by said
50 foot right-of-way the following three courses and distances; (1) South 86 degrees 51
minutes 30 seconds West a distance of ninety-nine and thirty-eight hundredths (9938)
feet to a point; (2) by a curve extending to the right in a westwardly direction and having
a radius of 125 feet an arc distance of one hundred and eighty-one. hundredths (100.81)
feet to a point; (3) North 46 degrees 56 minutes 00 seconds West a distance of seventy-
six and twenty-one hundredths (76.21) feet to a point, the Place of BEGINNING.
CONTAINING 1.4138 acres
(11)
Exhibit B
LEASE AGREEMENT
THIS LEASE, made the day of August, 2009, by and between
PANAYIOTIS TSIRIGOTIS, an individual, located at 1664 Promise Lane, Macungie,
Pennsylvania 18062 (hereinafter called "Landlord") and EAT'N PARK HOSPITALITY
GROUP, INC., a Pennsylvania corporation, having its principal place of business at 285
East Waterfront Drive, Homestead, Pennsylvania 15120 hereinafter called "Tenant").
WITNESSETH:
NOW THEREFORE, in consideration of the mutual covenants herein contained,
Landlord and Tenant do hereby covenant and agree as follows:
ARTICLE 1 - DEMISED PREMISES
Landlord hereby grants, demises and leases to Tenant and Tenant hereby
leases from Landlord, subject to and with the benefit of the terms, covenants,
conditions, and provisions of this Lease, as hereinafter provided, all those certain
premises presently known, as of the date of this Lease, as 146 Sheraton Drive, Fairview
Township, New Cumberland, York County, Pennsylvania 17070, comprised of the land
together with the improvements erected thereon with fixtures and equipment
(hereinafter referred to as the "Demised Premises"), as more particularly described on
Exhibit A hereto. Tenant further acknowledges that the purpose of the Equipment List
attached hereto as Exhibit B is to identify the Landlord's equipment which is a part of
the Demised Premises.
ARTICLE 2 - TERM
This Lease shall be for a term (`Initial Term") of six (6) months commencing as of
06-7- 1--99 (?l
_, 2009 (the "Lease Commencement Date") and expiring on" 3?, 2010 (the
"Lease Expiration Date"), unless sooner terminated or extended in accordance with the
terms of the Lease. Notwithstanding the above, Tenant may have an early termination
right, as set forth in Article 23.
ARTICLE 3 - EXTENSION OF TERM
A. Landlord grants Tenant an option to extend the term of the Lease for one additional 1
six (6) month period ("Additional Period") upon the same terms and conditions as •??
those herein specified. The Additional Period, if exercised in accordance with the
terms hereof, shall commence on 4/ -1 - , 2010 and expire on 3? , 2010.
B. If Tenant or its successors or assigns shall intend to continue to Lease the Demised
Premises at the expiration of the Initial Term, Tenant shall notify Landlord thereof in
writing two months prior to the expiration of such Initial Term. If the term of the Lease is
extended for the Additional Period in accordance herewith,.the same shall be
accomplished without the execution of an extension or renewal Lease.
ARTICLE 9-- UTILITIES
Tenant shall pay for all utilities, including but not limited to water, gas, sewer
rentals, garbage removal, and electric current used upon the Demised Premises.
ARTICLE 10 -INSURANCE
A. Tenant shall keep in full force and effect at its expense. policies of public
liability and property damage insurance with respect to the Demised Premises and the
business operated by Tenant therein in which the limits of public liability coverage shall
be not less than $1,000,000 per occurrence for personal injury liability and property
damage liability. If Tenant's insurance carrier provides a combined single limit for both
personal injury and property damage, then the limit shall not be less than $1,000,000
per occurrence. Such policy shall include Landlord as additional insured and shall
contain a clause that the insurer will not cancel or change the insurance without first
giving Landlord its standard prior written notice of cancellation.
B. Tenant shall also carry at its expense insurance against loss or damage by
fire and such other risks as are insurable under present and future standard forms of fire
and extended coverage insurance policies, to the building belonging to the Landlord
located on the Demised Premises for not less than one hundred percent (90%) of the
actual replacement value thereof and shall name Landlord as an additional insured
thereunder.
C. All of such insurance policies shall be underwritten by insurance companies
licensed to do business in the Commonwealth of Pennsylvania. Tenant shall furnish
Landlord a certificate of evidencing such coverages at the commencement of this
Lease.
ARTICLE 11 -INDEMNIFICATION
A. During the term of the Lease, Tenant will indemnify Landlord and save and
hold Landlord harmless from and against actions, claims, damages, demands,
expenses, judgments and liabilities in connection with damage, injury or loss to person
or property resulting or occurring or arising from:
i. Tenant's use or occupancy of the Demised Premises or any part
thereof,
ii. Tenant's maintenance of the Demised Premise,
iii. Tenant's altering, decorating, or improving of the Demised
Premises,
(3)
ARTICLE 13 -- DEFAULT
If Tenant shall be in default in the payment of any rent due hereunder, or in the
performance of any of the covenants and conditions hereof, and shall fail to correct and
rectify such default within fourteen (14) days from the receipt of written notice thereof
from Landlord. Landlord shall not be deemed to have elected to terminate this Lease
unless Landlord gives Tenant written notice of such election to terminate.
ARTICLE 14 -- ENTRY UPON DEMISED PREMISES
Landlord may enter upon the Demised Premises to examine the condition
thereof, but such entry shall be only after advanced notice to the Tenant and this right
shall not be exercised in a manner to interfere unreasonably with the operation of the
business of Tenant.
ARTICLE 15 - ALTERATIONS
Tenant will not make or permit anyone to or to make any alterations structural or
otherwise (hereinafter referred to as "Alterations°), in or to the Demised Premises
without the written prior consent of Landlord.
ARTICLE 16 - SURRENDER OF DEMISED PREMISES
Tenant covenants and agrees to vacate, remove from and deliver up and
surrender possession of the Demised Premises to Landlord upon the expiration of the
term of the Lease or upon the earlier termination thereof as herein provided in as good
condition and repair as the same shall be on the Lease Commencement Date,
excepting ordinary wear and tear. Tenant shall have the right to remove, prior to the
expiration of the term of this Lease, its inventory, logoed property, all items leased from
a third party such as the ATM banking machine, juice machine, Pepsi beverage
dispensers, waffle irons, dishwasher, music system, electronic point of sale system
hardware, as well any artwork and signage.
ARTICLE 17 -ASSIGNMENT AND SUBLETTING
Tenant shall not assign this Lease or sublet the Demised Premises.
ARTICLE 18 -
INTENTIONALLY DELETED
ARTICLE 22 - JOINT AND SEVERAL LIABILITY
If two or more individuals, corporations, partnerships or other business
associations (or any combination of two or more thereof) shall sign this Lease as Tenant
or as Guarantors, the liability of each such individual, corporation, partnership or other
business association to pay rent and perform all other obligations hereunder shall be
deemed to be joint and several. In like manner, if the Tenant named in this Lease shall
be a partnership or other business association, the members of which are, by virtue or
statute or general law, subject to personal liability, the liability of each such member
shall be joint and several.
ARTICLE 23 -- SPECIAL TERMINATION OPTION
terms: Tenant may elect to terminate the Lease at any time based upon the following
(1) Provide Landlord with a minimum of two (2) months prior written notice
(via certified mail) to terminate, including the effective date of
termination/last day of occupancy by Tenant ("Departure Date" hereafter.)
(2) Comply with all provisions of the Lease up until the time of the notice and
until the Departure Date.
(3) Pay all rent in full until the Departure Date.
(4) All provisions of the Lease remain in effect during the two (2) month notice
and until the Departure Date.
ARTICLE 24 - MISCELLANEOUS
A. This instrument contains the entire agreement between the parties as of this date
and the execution hereof has not been induced by either of the parties by
representations, promises, or undertakings not herein expressed. Except as herein
otherwise provided, no subsequent alteration, amendment, change or addition to this
Lease shall be binding upon Landlord or Tenant unless in writing and signed by the
party, or its duly authorized agent, against whom enforcement of the alteration,
amendment, change or addition is sought.
B. All notices, demands, or request required to be given under this Lease shall be in
writing and shall be deemed properly served when delivered, (i) if mailed postage
prepaid, by registered or certified mail, return receipt requested or (ii) if sent by private
receipt courier guaranteeing next day delivery, delivery charges prepaid, addressed as
follows:
(7)
LEASE AGREEMENT
THIS LEASE, made the ? i day of August, 2009, by and between
PANAYIOTIS TSIRIGOTIS, an individual, located at 1664 Promise Lane, Macungie,
Pennsylvania 18062 (hereinafter called "Landlord") and EAT'N PARK HOSPITALITY
GROUP, INC., a Pennsylvania corporation, having its principal place of business at 285
East Waterfront Drive, Homestead, Pennsylvania 15120 hereinafter called "Tenant").
WITNESSETH:
NOW THEREFORE, in consideration of the mutual covenants herein contained,
Landlord and Tenant do hereby covenant and agree as follows:
ARTICLE 1 - DEMISED PREMISES
Landlord hereby grants, demises and leases to Tenant and Tenant hereby
leases from Landlord, subject to and with the benefit of the terms, covenants,
conditions, and provisions of this Lease, as hereinafter provided, all those certain
premises presently known, as of the date of this Lease, as 146 Sheraton Drive, Fairview
Township, New Cumberland, York County, Pennsylvania 17070, comprised of the land
together with the improvements erected thereon with fixtures and equipment
(hereinafter referred to as the "Demised Premises"), as more particularly described on
Exhibit A hereto. Tenant further acknowledges that the purpose of the Equipment List
attached hereto as Exhibit B is to identify the Landlord's equipment which is a part of
the Demised Premises.
ARTICLE 2 - TERM
This Lease shall be for a term ("Initial Term") of six (6) months commencing as oqf
9 2009 (the "Lease Commencement Date") and expiring on. , 2010 (the - "Lease Expiration Date"), unless sooner terminated or extended in accordance with the
terms of the Lease. Notwithstanding the above, Tenant may have an early termination ?-
right, as set forth in Article 23.
ARTICLE 3 - EXTENSION OF TERM
A. Landlord grants Tenant an option to extend the term of the Lease for one additional
six (6) month period ("Additional Period") upon the same terms and conditions as
those herein specified. The Additional Period, if exercised in accordance with the
terms hereof, shall commence on 9 -1 - , 2010 and expire on 9 _ 3 a , 2010.
B. If Tenant or its successors or assigns shall intend to continue to Lease the Demised
Premises at the expiration of the Initial Term, Tenant shall notify Landlord thereof in
writing two months prior to the expiration of such Initial Term. If the term of the Lease is
extended for the Additional Period in accordance herewith, the same shall be
accomplished without the execution of an extension or renewal Lease.
ARTICLE 4 - RENT
A. Tenant shall pay the Landlord seven-thousand dollars ($7,000) rent on or before the
tenth day of each month. Rent for the initial period will begin on the first day of the first
full month following the Landlord's purchase of the building.
B. If the term of the lease is extended for the Additional Period in accordance with
Article 3, hereof, the rent payments shall remain the same.
ARTICLE 5 - USE OF DEMISED PREMISES
Tenant shall continue to operate its existing restaurant businesses on the Demised
Premises. The Tenant shall not do or permit anything to be done in or use or allow the
Demised Premises to be used for any improper, immoral, unlawful purpose. The
Demised Premises, and every part thereof, shall be kept by Tenant in a clean and
sanitary condition, free from objectionable noises, odors or nuisances. Tenant shall not
do or permit to be done any act or thing upon the Demised Premises that shall or might
subject Landlord to any liability or responsibility for injury to any person or persons or to
any property by reason of any business or operation being carried on in the Demised
Premises or for any other reason, and Tenant hereby indemnifies Landlord against any
such liability or responsibility.
ARTICLE 6 - COMPLIANCE WITH LAWS
Tenant, at Tenant's sole cost and expense, shall comply with all laws, rules,
orders, ordinances, directives, regulations and requirements of all federal, state, county
and municipal authorities, now in force or which may hereafter be in force which shall
impose any duty upon Landlord or Tenant with respect to Tenant's sign(s) and/or the
use, occupancy, or condition of the Demised Premises. Tenant shall hold Landlord
harmless from any claims, fines or other assessments which may be imposed against
the Demised Premises or Landlord by any governmental agency because of the non-
compliance by Tenant of any law, rule, order, ordinance or other requirement of such
governmental agency.
ARTICLE 7 - REAL ESTATE TAXES
Tenant shall pay all base county, municipality, and school district real estate
taxes, which may be levied, assessed or charged against the Demised Premises. The
Landlord shall reimburse the Tenant for any overpayment of annual taxes as may be
prorated to the end of this Lease term.
ARTICLE 8 - TAXES, OTHER THAN REAL ESTATE
Tenant agrees to bear the burden of any license, mercantile or other taxes
imposed upon the Demised Premises.
2 ???' I
ARTICLE 9 - UTILITIES
Tenant shall pay for all utilities, including but not limited to water, gas, sewer
rentals, garbage removal, and electric current used upon the Demised Premises.
ARTICLE 10 - INSURANCE
A. Tenant shall keep in full force and effect at its expense policies of public
liability and property damage insurance with respect to the Demised Premises and the
business operated by Tenant therein in which the limits of public liability coverage shall
be not less than $1,000,000 per occurrence for personal injury liability and property
damage liability. If Tenant's insurance carrier provides a combined single limit for both
personal injury and property damage, then the limit shall not be less than $1,000,000
per occurrence. Such policy shall include Landlord as additional insured and shall
contain a clause that the insurer will not cancel or change the insurance without first
giving Landlord its standard prior written notice of cancellation.
B. Tenant shall also carry at its expense insurance against loss or damage by
fire and such other risks as are insurable under present and future standard forms of fire
and extended coverage insurance policies, to the building belonging to the Landlord
located on the Demised Premises for not less than one hundred percent (90%) of the
actual replacement value thereof and shall name Landlord as an additional insured
thereunder.
C. All of such insurance policies shall be underwritten by insurance companies
licensed to do business in the Commonwealth of Pennsylvania. Tenant shall furnish
Landlord a certificate of evidencing such coverages at the commencement of this
Lease.
ARTICLE 11 -INDEMNIFICATION
A. During the term of the Lease, Tenant will indemnify Landlord and save and
hold Landlord harmless from and against actions, claims, damages, demands,
expenses, judgments and liabilities in connection with damage, injury or loss to person
or property resulting or occurring or arising from:
Tenant's use or occupancy of the Demised Premises or any part
thereof,
ii. Tenant's maintenance of the Demised Premise,
iii. Tenant's altering, decorating, or improving of the Demised
Premises,
iv. any negligence or act or failure to act of Tenant, Tenant's agents,
contractors, employees or servants or anyone claiming by, through,
or under Tenant, or
v. the default by Tenant in the observance or performance of the
obligations incumbent upon Tenant hereunder.
B. If Landlord shall, without fault on its part, be made a party to any litigation
commenced by or against Tenant, Tenant shall protect and hold Landlord harmless
from and pay all costs, expenses, and reasonable attorneys' fees incurred or paid by
Landlord in connection with such litigation.
C. During the term of this Lease, Landlord will indemnify Tenant and save
and hold Tenant harmless from and against all actions, claims, damages, demands,
expenses, judgments and liabilities in connection with damage, injury or loss to person
or property resulting or occurring or arising wholly from:
(1) any negligence or act or failure of Landlord, Landlord's agents,
contractors, employees or servants or anyone claiming by, through, or
under Landlord, or
(11) the default by Landlord in the observance or performance of the
obligations incumbent upon Landlord hereunder.
D. If Tenant shall, without fault on its part, be made a party to any litigation
commenced by or against Landlord, Landlord shall protect and hold Tenant harmless
from and pay all costs, expenses and reasonable attorneys' fees incurred or paid by
Landlord in connection with such litigation.
ARTICLE 12 - REPAIRS AND MAINTENANCE
It is understood and agreed that Tenant accepts the Demised Premises "as is"
and shall make all repairs to the Demised Premises including the HVAC system which
are necessary or desirable to keep the Demised Premises in good order and repair and
in a safe, dry and tenantable condition.
Tenant shall also keep the Demised Premises and immediately surrounding area
in a clean and sanitary condition and free from vermin and escaping offensive odors
and shall be responsible for all building, fixture and equipment maintenance,
landscaping, maintenance and snow removal of the parking lot.
(4)
ARTICLE 13 -- DEFAULT
If Tenant shall be in default in the payment of any rent due hereunder, or in the
performance of any of the covenants and conditions hereof, and shall fail to correct and
rectify such default within fourteen (14) days from the receipt of written notice thereof
from Landlord. Landlord shall not be deemed to have elected to terminate this Lease
unless Landlord gives Tenant written notice of such election to terminate.
ARTICLE 14 -- ENTRY UPON DEMISED PREMISES
Landlord may enter upon the Demised Premises to examine the condition
thereof, but such entry shall be only after advanced notice to the Tenant and this right
shall not be exercised in a manner to interfere unreasonably with the operation of the
business of Tenant.
ARTICLE 15 -- ALTERATIONS
Tenant will not make or permit anyone to or to make any alterations structural or
otherwise (hereinafter referred to as "Alterations"), in or to the Demised Premises
without the written prior consent of Landlord.
ARTICLE 16 - SURRENDER OF DEMISED PREMISES
Tenant covenants and agrees to vacate, remove from and deliver up and
surrender possession of the Demised Premises to Landlord upon the expiration of the
term of the Lease or upon the earlier termination thereof as herein provided in as good
condition and repair as the same shall be on the Lease Commencement Date,
excepting ordinary wear and tear. Tenant shall have the right to remove, prior to the
expiration of the term of this Lease, its inventory, logoed property, all items leased from
a third party such as the ATM banking machine, juice machine, Pepsi beverage
dispensers, waffle irons, dishwasher, music system, electronic point of sale system
hardware, as well any artwork and signage.
ARTICLE 17 -ASSIGNMENT AND SUBLETTING
Tenant shall not assign this Lease or sublet the Demised Premises.
ARTICLE 18 -
INTENTIONALLY DELETED
ARTICLE 19 - DAMAGE OR DESTRUCTION
If the Demised Premises shall be destroyed or damaged by fire or any other
cause to such an extent that the same cannot be restored to tenantable condition within
thirty (30) days from the date of such destruction or damage, then either party hereto
may terminate the term of this Lease as of the date of such destruction or damage,
irrespective of the cause thereof or whether occasioned by or attributable to the
negligence of either party, by giving notice to the other party not later than thirty (30)
days subsequent to the date of such destruction or damage, and the rent payable by
Tenant hereunder shall abate as of such termination date and any rent paid in advance
shall immediately be refunded to Tenant. If the Lease shall be so terminated, all
insurance proceeds of insurance required to be maintained hereunder applicable to the
building shall belong to and shall be paid to Landlord. In the event of any destruction or
damage to the Demised Premises not resulting in the termination of the term of this
Lease as hereinabove provided, the Demised Premises shall be promptly repaired by
and at the expense of Landlord, subject to delays caused by forced majeure and, until
such repairs shall have been completed, the rent herein reserved shall be equitably
abated from the date of such destruction or damage in the proportion and to the extent
that the Demised Premises are unusable. Landlord shall have the use of all proceeds
of insurance required to be maintained hereunder in order to make the requisite repairs
to the Demised Premises. Unreasonable delay in the part of Landlord in commencing
or carrying out repairs following destruction or damage shall entitle Tenant to terminate
this Lease as of the date of such destruction or damage.
ARTICLE 20 - QUIET ENJOYMENT
Landlord covenants that Landlord has full and rightful authority to enter into this
Lease and agrees and warrants that Tenant shall be delivered full possession of the
Demised Premises at the beginning of the term of the Lease and further warrants that
Tenant upon payment of the rent and observing and keeping all of the covenants,
agreements and conditions of this Lease on its part to be kept, shall quietly have and
enjoy the Demised Premises during the term of this Lease, without hindrance or
molestation by Landlord, subject and subordinate, however, to the exceptions,
reservations and conditions of this Lease.
ARTICLE 21 -
INTENTIONALLY DELETED
L
(6)
ARTICLE 22 -JOINT AND SEVERAL LIABILITY
If two or more individuals, corporations, partnerships or other business
associations (or any combination of two or more thereof) shall sign this Lease as Tenant
or as Guarantors, the liability of each such individual, corporation, partnership or other
business association to pay rent and perform all other obligations hereunder shall be
deemed to be joint and several. In like manner, if the Tenant named in this Lease shall
be a partnership or other business association, the members of which are, by virtue or
statute or general law, subject to personal liability, the liability of each such member
shall be joint and several.
ARTICLE 23 -- SPECIAL TERMINATION OPTION
Tenant may elect to terminate the Lease at any time based upon the following
terms:
(1) Provide Landlord with a minimum of two (2) months prior written notice
(via certified mail) to terminate, including the effective date of
termination/last day of occupancy by Tenant ("Departure Date" hereafter.)
(2) Comply with all provisions of the Lease up until the time of the notice and
until the Departure Date.
(3) Pay all rent in full until the Departure Date.
(4) All provisions of the Lease remain in effect during the two (2) month notice
and until the Departure Date.
ARTICLE 24 - MISCELLANEOUS
A. This instrument contains the entire agreement between the parties as of this date
and the execution hereof has not been induced by either of the parties by
representations, promises, or undertakings not herein expressed. Except as herein
otherwise provided, no subsequent alteration, amendment, change or addition to this
Lease shall be binding upon Landlord or Tenant unless in writing and signed by the
party, or its duly authorized agent, against whom enforcement of the alteration,
amendment, change or addition is sought.
B. All notices, demands, or request required to be given under this Lease shall be in
writing and shall be deemed properly served when delivered, (i) if mailed postage
prepaid, by registered or certified mail, return receipt requested or (ii) if sent by private
receipt courier guaranteeing next day delivery, delivery charges prepaid, addressed as
follows:
(7)
If intended for Tenant to:
Eat'n Park Hospitality Group, Inc.
285 East Waterfront Drive
Homestead, Pennsylvania 15120
ATTN: William Bates, Vice President of Real Estate
And
If intended for Landlord to:
Mr. Panayiotis Tsirigotis
1664 Promise Lane
Macungie, Pennsylvania 18062
C. This Lease shall be binding upon the heirs, successors and assigns (where
permitted) of the parties hereto.
D. Captions throughout this Lease are for convenience and reference only and the
words contained herein shall in no way be held to explain, modify, amplify or aid in the
interpretation, construction or meaning of the provisions of this Lease.
E. This Lease shall be construed in accordance with its plain meaning, without regard
to any implication, inference or assumption arising from the fact that this Lease may
have been drafted, in whole or in part, for or on behalf of either party hereto.
F. The words "term of this Lease", "the term hereto", or words like import shall be
deemed to refer to the Initial Term of this Lease provided for in Article 2 hereof
captioned "Term" together with any extension or renewal thereof which shall become
effective pursuant to the provisions of this Lease.
G. This Lease shall be construed under and in accordance with the laws of the
Commonwealth of Pennsylvania.
(8)
IN WITNESS WHEREOF, the parties have caused this Lease to be executed on
the day and year first above-written, with intent to be legally bound hereby.
Attest:
Tenant:
Eat'n Park Hospitality Group, Inc.
By:
ffrey Broadhurst, CEO
Attest:
(2 2
By:
Landlord:
i? j k s? , C
BBy:- r
(Title)
ACKNOWLEDGEMENT
COMMONWEALTH OF PENNSYLVANIA
COUNTY OF
SS.
On this day of . , 2004, before me, a Notary Public in and for
said County and State, personally appeared
IP P*A P41 O-r 16 T61 P- 1 A bTl S
who acknowledged he executed the foregoing
Lease as his act and deed for the purposes therein contained.
IN WITNESS WHEREOF, I hereunto set my hand and official seal.
Notary Public
NOTARIAL SEAL
CAMELA J MANGH
Notary Public
HAMILTON Will, FRANKLIN COUNTY
My Commission Expires Jun 21. 2010
COMMONWEALTH OF PENNSYLVANIA
COUNTY OF
SS.
On this day of , 2000, before me, the undersigned
officer, personally appeared Jeffrey Broadhurst who acknowledged himself to be
President & Chief Executive Officer of Eat'n Park Restaurant Hospitality Group, Inc.,
and that he, being authorized to do so, executed the foregoing Lease for the purposes
therein contained.
IN WITNESS WHEREOF, I hereunto set my hand and official seal.
Notary Public
EXHIBIT "A"
DESCRIPTION OF DEMISED PREMISES
That certain "Eat'n Park" restaurant presently occupied by Tenant and known, as
of the-date of this Lease, as 146 Sheraton Drive, Fairview Township, New Cumberland,
York County, Pennsylvania 17070.
Legal Description:
ALL THAT CERTAIN piece or parcel of land situate in the township of Fairview, County
of York and Commonwealth of Pennsylvania, more particularly bounded and described
as follows, to wit:
BEGINNING at an iron pin on the Northeast side of a 50 foot right-of-way at corner of
land of the Shell Oil Company and a distance of 150 feet measured along said right-of-
way from the Limekiln Road; thence by land of the Shell Oil Company North 31 degrees
44minutes 47 seconds East a distance of 200 feet to an iron pin; thence by land of the
Henry N. Bowman Estate the following two courses and distances: (1)North 80 degrees
59 minutes 00 seconds East a distance of 80 feet to a concrete monument: (2) South 47
Degrees10 minutes 36 seconds East a distance of two hundred ninety-one and forty-
five hundredths (291.45) feet to a concrete monument at land of the Harrisburg Holding
Corporation ( the Sheraton Motor inn): thence by the same the following two courses
and distances; (1) South 80 degrees 59 minutes 00 seconds West a distance of one
hundred fifty-one and forty-four hundredths (151.44) feet to a hub; (2) South 1 degree
51 minutes 30 seconds West a distance of forty and eighty-eight hundredths (40.88)
feet to a concrete monument on the aforementioned 50 foot right-of=way; thence by said
50 foot right-of-way the following three courses and distances; (1) South 86 degrees 51
minutes 30 seconds West a distance of ninety-nine and thirty-eight hundredths (99,38)
feet to a point; (2) by a curve extending to the right in a westwardly direction and having
a radius of 125 feet an arc distance of one hundred and eighty-one hundredths (100.81)
feet to a point; (3) North 46 degrees 56 minutes 00 seconds West a distance of seventy-
six and twenty-one hundredths (76.21) feet to a point, the Place of BEGINNING.
CONTAINING 1.4138 acres
?.C
(11)
EXHIBIT "B"
EQUIPMENT LIST
(ATTACHED)
(12)
Ilnventory List 7/28/2oo9 Restaurant Number: 70
Asset Type Serial # / Brand / Model Number / Descri ption
BAKERY' CASE
658074
BEIVERAGE DISPENSER TRUE SN-48 BAKERY CASE
BREAD SLICER
169595 OLIVER 711 OLIVER BREAD SLICER
BREAD TOASTER -
2320270608 I IATCO TRH60 BREAD TOASTER
3083869407 HATCO TR11-60 TOASTER BREAD
4 15 593 0742 HA'rC0 TR1460 BREAD TOASTER
BUFFET - HOT/COLD PAN
4269350736 HATCO FR-6B BUFFET STEAM TABLE
BUN TOASTER
8424260143 HATCO TK-155B BUN TOASTER
CAPPUCINO MAKER
0429-426399 AMBIENTE SHEARER EXPRESSO MACHINE
CHAR BROILER
39998 EMBER GLO E2424 CHAR BROILER
COFFEE BREWER -
TWIN 044363 BUNN CWTF12/2TWEN.120/240VSF TWIN COFFEE BREWER
TWIN046548 BUNN CWrF2/2TWIN.120t240VSF COFFEE BREWER
CONVEYOR OVEN
3038732 LINCOLN 1301 LINCOLN IMPINGEROVEN(SC'ROD)
COOLER- UPRIGHT
1182733 TRUE T-49G PANTRY UPRIGHT
1215640 TRUE TUC27 BAKERY REACH IN
COOLER - WALK IN
00031941 TLP204A WALK IN COOLER-TRENTON
COOLER- UNDER COUNTER
D93G'892 IIF.ATCRAFT CCHKI3AE KITCHEN BAY MIDDLE
D94DO0309 CHANDLER RACK I5AE MILK COOLER BAY
D94D11523 HEATCRAFT CCF1K13AF PANTRY BAY
D93D0600I
DISHWASHER HEATCRAFT CCFIK13AE KrrciIEN BAY-MAIN
-1-i8 v;999 f EE3f !B
EGG POACHER .if [WrSr
26374) EMBER (A.0 I:S5= r FGG POACI IBR
FREEZER-UPRIGHT
1070 FREEZER TRAIII.SEN FREEZER C'(X)KSi.INF.
FREEZER - WALKIN
D941:08073 1301 IN 1.1:'rl2olV WALK-IN :R
l
?J
-inventory List 7/2noo9 Restaurant plumber: 70
Asset Type Serial 9 / Brand / Mode! Number / Deseri Lio
FREEZER ICE CREAM n
SS439954 MASTER BILT HFCI34A ICE CREAM FREEZER
FRENCH FRY WARMER
02951751 MARSHALL MMI FRENCH FRY HEAT LAMP
FRYER
US04110004 ULTRA FRYER ZRT34-H-U25-3-5 YR $200.00 v.jjL,rRA FRYER GAS
GREASE CARRIER
0311SD0144 FRYMASTER SDU50 FRYMASTER SHORTENING DISPOSAL
GRILL
84601132
T5243199 STAR 8GS48TS IST SET UP 4 FT GAS GRILL-ULTRA MAX
T5243204 STAR
STAR 524TG BUFFET GRILL
T536490
STAR 524TG BUFFET GRILL
SG-536TGD Y ELECTRIC GRILL-MIDDLE
HEAT LAMP
2294519407B HATCO GRAH-72D HEAT LAMP BOTTOM
2294519407T HATCO GRAH 72D HEAT LAMP
HOLDING CABINET
9724580009 HATCO FSHC-1 HOLDING CABINET
HOT FUDGE/CARMEL WARMER
89194E SERVER PRODUCTS FSP 82060 HOT FUDGE WARMER
HOT SPOT PAN
-NBC"0 0 - W
OD-100TD SALAD BAR HOT SPOT PAN
HOT WATER DISPENSER
HX00001465 BUNN 45X-40-208 HOT WATER DISPENSER
H VAC
5602.DO2402
5644F04517 LENNOX
L LGA360HH2Y
RTU#I DINfNGROOft4PREP,DISH
J31142623D ENNOX GCS16-413-75-6Y RTU#4 BAKERY-3 TON
KI7100036D TRANE YCH120133HODB RTU#2 KITCHEN-10 TON
M421004E TRANE YCD036CILOBA RTU#3 LOBBY-3 TON
CAMBRIDGE M f IS MUA UNIT
NUM137786 YORK DAPB-F030AB RTU#5 COOLING SIDE DINING2.5 TON
ICE MAKER
040761030 Manitowoc FY1094N
M.4NITOWOC ICE MAKER
ICED TEA BREWER
PTQ0001092 BUNN PTQ3
ICE TEA BREWER
MAKE UP AIR
I4421004E CAMBRIDGE 1`4M115
AfAKf UP AIR UNIT
MAPLE SYRUP DISPENSER
N628770 C'[:C fl.WARE
tiLlPf.E SYRUP DISP[NS1:R
1
Inventory List 7/28/2009 Restaurant Number: 70
L
Asset Twe Serial # / Brand / Model Number / Description
MICROWAVE
6AN5210127 PANASONIC NE1757R BUFFET PANASONIC MICROWAVE
6C503140147 PANASONIC NEI757R PANASONIC MICROWAVE-KITCHEN
6CS3140238 PANASONIC NE1757R PANASONIC MICROWAVE PANTRY
6063160562 PANASONIC NEI757R PANASONIC MICROWAVE
6063160567 PANASONIC NEI757R PANASONIC MICROWAVE
MILK DISPENSER
SCA.6040M SILVER KING SK-2 IMP MILK DISPENSER
MILK SHAKE MIXER
MILK SHAKE MIXER 1070RAMILTON BEACH MILK SHAKE MIXER
MIXER
111024057 HOBART D-330 BAKERY MIXER
11-1040-331 HOBART A-120T AT MTS MIXER
11411-879 A-200 SMALL BAKERY MIXER
OVEN
0288M4522101 BLODGETT CTBR-l BLODGETT OVEN
[460112 NU VU UB-12 RIGHT OVEN
PIE CASE
65807-1 TRUE SNR48SC PIE CASE
POP DOWN TO. 2442:5 HAMILTON BEACH B33005 STORE BOUGHT-POP DOWN TOASTER
POP UP TOASTER
TI - PUP A TER
041128-1070 WARING WCT915B POP UP TOASTER
PROCESSOR - FOOD
R6N2370124503 ROBOT COUPE R6N ROBOTCOUPE
PROOFER
1301160 NU VU XP-18 LEFT PROOFER
RANGE
94686376 SOUTHBEND 1364D-0 RANGE
ROOF
152502 DUROLAST ROOFING, INC. DL-823938 ROOF
SLICER
561025189 1IOBART 1712F SLICER
SOUP POT
6696294 rOAS"I-MAS'rLR 15045 SOUP Par I -PANTRY
6697694 TOASTMASTER 15041) SOIJP POT-PAN"rRY
ADP00001240 WELLS 21561 SALAD BAR SOUP WELL
AD1,00001339 WELLS 21561 SALAD BAR SOUP POT
ADP00001346 WELLS 21561 SALAD 13AR SOUP WELL
0005609 WELLS 558 OLT SOUP POT 2-PANTRY
UPRIGHT DUAL TEMP
V5,35160094 TRAULSEN RDT-2-32-N1JT KTTCHFN MAIN RFACII IN
• Inventory List 7/28!2009 Restaurant plumber: 70
As et Tvoe
Serial #! Brand !Mode! Number / -Description
WATER HEATER
A06M006517 AO. SMITH
MAO! 100965o BTR 199114 A O SMITH MASTERFIT WATER HEATER
A.O. SMITH STR-200-110
A.O. SMITH GAS WATER HEATER
A
Exhibit C
AGREEMENT OF SALE
THIS AGREEMENT is made this day of , 200 ,
between ELIKA L., INC., having a business address of 1664 Promise Lane, Macungie,
Pennsylvania, 18062 (hereinafter referred to as "Seller") and (Buyer to be determined by
Tenant), having a mailing address of (hereinafter referred
to as "Buyer").
WITNESSETH:
That in consideration of the premises contained herein, the parties agree as
follows:
1. PREMISES
Seller hereby agrees to sell and convey to Buyer who hereby agrees to
purchase the premises known as 146 Sheraton Drive, New Cumberland, Fairview
Township, York County, Pennsylvania, 17070, as more particularly on Exhibit A
attached hereto and made part hereof.
2. PURCHASE PRICE
Buyer agrees to pay to Seller and Seller agrees to accept the purchase
price of One Million Three Hundred Thousand Dollars ($1,300,000) with said purchase
price being paid to Seller at final settlement.
3. TITLE
(a) Title shall be granted by special warranty deed with good
and marketable fee simple title such as will be insured by a reputable title insurance
company at regular rates and shall be free and clear of all liens and taxes, subject
however to any easements, covenants or restrictions that appear in the chain of title, or
are visible on the ground.
1
(b) If Seller cannot convey title as aforesaid, Buyer shall have
the option of taking such title as Seller can give without abatement of the price except to
the extent of any judgment or other liens, or the Buyer may elect to rescind this contract
and be refunded all monies deposited hereunder.
(c) Tender of an executed deed and purchase price is hereby
waived.
4. CLOSING.
(a) Final closing shall be held in the office of Buyer's attorney
or at such other place agreeable to Buyer and Seller, on or before
. All transfer taxes on said property are to be paid one-half by Buyer and
one-half by Seller. All real estate taxes shall be apportioned pro rata as of the date of
settlement.
(b) Possession of premises shall be delivered to Buyer at
settlement.
5. CONTINGENCIES.
This Agreement is subject to the following contingency:
(a) This Agreement is subject to Buyer obtaining a
conventional mortgage for the subject premises in the amount of
Dollars ($ ) at an interest rate
and amortization period acceptable to Buyer in his sole discretion. If Buyer is unable to
obtain said mortgage by , she shall send written notice thereof to
Seller and either party may terminate this Agreement.
6. ASSESSMENT
Buyer agrees to comply, at Buyer's own expense, with the requirements of
any and all notices relating to the said property which may be issued by municipal or
other public authority after the date of this Agreement, and agrees to pay for all work and
improvements done or ordered by such authority after the date of this Agreement which
2
may become a. lien against the said property. Municipal assessments for improvements,
notice of which has been received by the Seller prior to the date hereof, shall be paid by
the Seller. If final closing does not occur as set forth in Paragraph "4(a)" hereof, this
paragraph shall be null and void.
7. SELLER'S REPRESENTATIONS
Seller represents and warrants as follows:
(a) Seller is the owner of the subject premises.
(b) Seller has the full right and authority to execute this
Agreement and consummate all of the transactions hereby contemplated.
(c) Seller shall deliver to Buyer at settlement Seller's Affidavit,
setting forth the following:
(1) That all work, labor, services and materials
furnished to or in connection with the premises have been fully paid for so that no
mechanics' lien, materialmen's liens or other lien may be properly filed against the
premises.
(2) That Seller and/or the land being sold hereunder is
not the subject of any insolvency or bankruptcy proceeding nor the subject of any suit or
proceeding at law or in equity or otherwise, the result of which might affect title to the
premises or the said improvements.
(3) That the Seller has no knowledge of any violations
against the premises whether filed or threatened, nor any restrictions against the sale of
the premises.
(4) That Seller has no knowledge of any claim or
claims made or threatened the result of which could in any way affect the title to the
premises.
3
w
V
8. NOTICES.
All notices, requests, consents, approvals, waivers, or other
communications under this Agreement shall be given by certified mail, return receipt
requested, as follows:
If to Seller: Elika L., Inc.
1664 Promise Lane
Macungie, PA 18062
with a copy to: Donald LaBarre, Jr., Esquire
Gross McGinley, LLP
P O Box 4060
Allentown, PA 18105-4060
If to Buyer:
with a copy to: William G. Malkames, Esquire
509 Linden Street
Allentown, PA 18101
or to such other address as either party may hereafter indicate by written notice to the
other. Notice will be considered to have been given upon the date of mailing.
9. MISCELLANEOUS.
(a) This Agreement is made and executed in the
Commonwealth. of Pennsylvania and shall be construed and enforced in accordance with
the laws of Pennsylvania.
(b) This Agreement represents the entire agreement between
the parties hereto covering everything agreed upon or understood in the transaction.
There are no oral promises, conditions, representations, understandings, interpretations or
terms of any kind as conditions or inducements to the execution hereof in effect between
the parties. No change or addition is to be made to this agreement except by written
agreement executed by the parties.
4
(c) Risk of loss by fire or other hazard, commonly covered by
insurance coverage shall be and remain upon the Seller until the time of final settlement.
(d) This Agreement shall not be recorded in the Office for the
Recording of Deeds or in any other office or place of public record.
(e) This Agreement shall be binding upon the parties, their
respective heirs, personal representatives, successors and, to the extent assignable, upon
the assigns of the parties hereto, it being expressly understood, however, that Buyer may
not transfer or assign this Agreement without the written consent of the Seller.
(f) This Agreement shall not be altered, amended, changed or
modified except in a writing signed by all parties.
(g) All parties warrant that they have not dealt with a realtor
and that no commissions are due any realtor with respect to this transaction.
10. DEFAULT BY BUYER.
Should Buyer default in the performance of any of Buyer's obligations
under this Agreement or fail to make settlement after all of the contingencies have been
met hereunder., then Buyer shall pay to Seller as liquidated damages the sum of Fifty
Thousand Dollars ($50,000).
11. DEFAULT BY SELLER.
Should Seller default in the performance of any of Seller's obligations
under this Agreement or fail to make settlement as provided herein, then Buyers shall
have the right to enforce this Agreement by the appropriate action at law or in equity for
specific performance.
5
,'
IN WITNESS WHEREOF, the parties hereto have caused these presents to be
executed by their respective officers thereunto duly authorized as of the day and year first
above written.
SELLER:
ELIKA L., INC.
By:
PANAYIOTIS TSIRIGOTIS,
PRESIDENT
BUYER:
W: \ WDOX\CLIENTS\ELIKAINC\ATHENA\00293360.DOC
6
IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA
CIVIL DIVISION - LAW
PANAYIOTIS TSIRIGOTIS AND )
ELIKA L., INC. )
PLAINTIFFS )
V. )
JEG CORP., )
DEFENDANT )
q
NO. ??? f yU! C??'?
CIVIL ACTION - CONFESSION OF
JUDGMENT FOR POSSESSION
PLAINTIFF'S AFFIDAVIT/AVERMENT
CONFESSION OF JUDGMENT FOR POSSESSION OF REAL PROPERTY --
Pursuant to Pa.R.C.P. No. 2971(a)(1), I certify that this Judgment is
not being entered against a natu rson in connection with a residential lease.
r ..._.
Date: _ o Signature:
P otis Tsi ' ~As (Name)
• (Title)
The above certification is made subject to the penalties of 18 Pa.C.S.§4904, relating to unsworn
falsification to authorities. ?l
Date:
SWORN TO AND SVBSCRIB D .
before me this day of
I r .
_
Notary Public
MOWNEA ..TH oW EKN-nY VAMA
k'OTARiAL SEAL
00412235.DOC DONNA M. DARTOUZOS, Notary Pubk
Cky of Bethlehem, Nzrthamp6on COW*
Corn* lion Expires 10, 2013
i
AFFIDAVIT
(Pursuant to Swarb v. Lennox)
COMMONWEALTH OF PENNSYLVANIA
ELIKA L., INC.
COUNTY OF LEHIGH
ss: Panayiotis Tsirigotis and
Elika L., Inc.
Plaintiff(s)
V.
JEG Corp.
Defendant(s)
being duly sworn according to law, deposes and
says that is/afe the aintiff and J0nC)-6&1+ of Elika L., Inc.,
debte~ defea a~'s/creditor-plaintiffs, in the above matter and
1. That the document represents a (commercial) or transaction because:
Lease of commercial property or the operation of a business
(SEE NOTE 1 OF COMMENTS)
2. that at the time of the signing of the document containing the provision for
judgment by confession in this matter, each of the makers
a) ( X ) earned more than $10,000 annually (see Note 2 of Comments)
or
b) ( ) understood that a judgment could be entered in the Courthouse
against me/us, which would become a lien against my real estate. I/we
fully understand that if payment of the Note is not made as required, the
holder of this Note can use the most drastic and powerful remedies of the
law against me/us and sell my/our real estate and personal property. I/we
also understand that all this can be done without any advance notice to
me/us and without letting me/us have a hearing in Court to tell my/our
side of the case. I/we also understand that I/we will have to pay all costs,
expenses and lawyer's fees if any of my/our property is sold at a Sheriff's
sale. Even though I/we now know what will happen if I/we fail to make
payment, I/we have, nevertheless, decided to sign this document which
contains this confessions of judgment.
Sworp. to and subscri ed before me this
day of )C ,
2011
Notary Public
My Commission Expires:
MlONW!'ALTH of PEA,
NOTARIAL SEAL
DONNA M. DARTOUZOS, Notary Pubic
Cl"T"M ENa an SepW 1 COW*
13
BY:
14-
Nam _ a •otis T tis
Title: o z
Panayiotis Tsirigotis
r
}
Note: See Reverse for Comments
COMMENTS
NOTE 1: Suggested definition of consumer transaction: "Those in which the party to
whom credit is extended is a natural person and in which the money, property or
services which are the subject of the credit transaction are primarily for personal,
family or household purposes."
NOTE 2: Husband and wife are considered to be one entity.
NOTE 3: Creditor or debtor may execute Part One or Part Two (A); DEBTOR ONLY can
execute Part Two (B)
NOTE 4: Commercial transaction ARE NOT governed by Swarb case. Instruments
involving commercial transaction, regardless of amount, will be accepted if Part
One is completed. Consumer transactions ARE governed by Swarb. Instruments
involving consumer transactions will be accepted if Part Two (A) is applicable. If
not, Part Two (B) must be completed.
C
IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA
CIVIL DIVISION - LAW
PANAYIOTIS TSIRIGOTIS AND )
ELIKA L., INC. )
PLAINTIFFS )
V. )
JEG CORP., )
DEFENDANT )
` dC Ct? r `?
NO.
CIVIL ACTION - CONFESSION OF
JUDGMENT FOR POSSESSION
ADDRESS CERTIFICATION
I hereby certify that the precise address of the Plaintiffs is 1664 Promise Lane,
Macungie, Lehigh County, Pennsylvania 18062. The precise address of the Defendant is 3127 S.
4th Avenue, Whitehall, Lehigh County, Pennsylvania 18052.
GROSS MCG
BY: 5?
SAMUEL E. COHEN, ESQUIRE, LD.-#204617
JOHN F. GROSS, ESQUIRE, I.D. #82079
DONALD LABARRE, ESQUIRE, I.D. #15212
Attorneys for Plaintiff
33 South 7th Street
P.O. Box 4060
Allentown, PA 1 8 1 05-4060
Phone: (610) 820-5450
Direct No.: (610) 871-1319
Fax: (610) 820-6006
00412244.DOC
IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA
CIVIL DIVISION - LAW
PANAYIOTIS TSIRIGOTIS and
ELIKA L., INC.
PLAINTIFFS )
NO. 12-1409
V. )
CIVIL ACTION -? .. .
rT1
`_ " -
'
r'
JEG CORP.,
DEFENDANT ) - `- -+?
PRAECIPE FOR WRIT OF POSSESSION 'y `
UPON A CONFESSED JUDGMENT
To the Prothonotary:
Issue writ of possession upon the judgment in ejectment entered by confession in the
above-matter.
Certification
I certify that
(1) This praecipe is based upon a judgment entered by confession, and
(2) Notice pursuant to Rule 2973.3 will be served with the writ of possession.
GROSS MCGINLEY, LLP
-
DATE: 3-3 z- by:
SAMUEL E. COHEN, ESQUIRE, I.D. #204617
Attorneys for Plaintiffs
33 South 7t' Street, P.O. Box 4060
Allentown, Pa 18105-4060
Phone: (610) 820-5450
Direct No.: (610) 871-1319
Fax: (610) 820-6006
00456229.DOCX
V2S.S•b_?L
? ? ? 6v • Cosh ? .
V/.sO- lr rr
? 34Y38
osf
t? a 7
IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA
CIVIL DIVISION - LAW
PANAYIOTIS TSIRIGOTIS and
ELIKA L., INC.
Plaintiffs
V.
JEG CORP.,
Defendant
Commonwealth of Pennsylvania:
County of Cumberland
To the Sheriff of Cumberland County:
NO. 12-1409
CIVIL ACTION
WRIT OF POSSESSION
To satisfy the Judgment for Possession in the above matter, you are directed to deliver
possession of the following described property to PANAYIOTIS TSIRIGOTIS and ELIKA L., INC.:
146 Sheraton Drive, New Cumberland, Cumberland County, Pennsylvania 17070.
)n?,y ? ?o?? ?
Ix
Ty S'O Prothonotary/Clerk, Civil Div.
a.aS-
Deputy
Seal of the Court
JLWF-
Date
GROSS MCGINLEY, LLP
By:
SAMUEL E. COHEN, ESQUIRE, I.D. #204617
Attorneys for Plaintiffs
33 South 7u' Street, P.O. Box 4060
Allentown, Pa 18105-4060
Phone: (610) 820-5450
Direct No.: (610) 871-1319
Fax: (610) 820-6006
• %
IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVAN
CIVIL DIVISION - LAW
PANAYIOTIS TSIRIGOTIS and )
ELIKA L., INC. )
Plaintiffs ) c d= _
NO. 12-1409
V. ) rrr
CIVIL ACTION C7
JEG CORP.,
r
w
? CD
Defendant ) n C1.) s"
Z c
PRAECIPE TO WITHDRAW i
TO: The Prothonotary/Clerk of Said Court
Kindly withdraw, without prejudice, the Judgment for Possession in the above
filed on or about March 2, 2012.
GROSS MCGINLEY, LLP
DATE: Z by:
SAMUEL E. COHEN, ESQUIRE, I.D. #204617
Attorneys for Plaintiffs
33 South 7' Street, P.O. Box 4060
Allentown, Pa 18105-4060
Phone: (610) 820-5450
Direct No.: (610) 871-1319
Fax: (610) 820-6006
00459657.DOCX
2012 12:06PM Cumberland County Sherrif No-1864 P. 1
o E to rrtherl$?d
RONNY R. ANDMWN R cw" w srewARr
ShW 30ko r
.IW s. *AT"
CMS(D" y OFFICE OF THE SHERIFF
One Co mthmm SQUGM Room 33
Cwftle. Panama 17019
DATE July 9, 2012
TO Samuel E. Cohen, Esquire
Gross McGinley LIP
FAX 4 (610) 820-6006
i# of PAGES 1
MESSAGE
Re: Panaylods Tsirigotis and Efika L„ Inc v. JEG Corp.
C.C.P., Cumberland County No. 12-1409
Dear Attorney Cohen,
I am In receipt of your fax dated July 6, 2012 requesting that we discontinue all service efforts for tt
writ of possession in the above titled action. Please be advised that I new opened a file, as once I
received the paperwork from the Prodwotary's office, i promptly returned It to them as I rimed
that the property was not located In Cumberland County, but in York County.
If you have ary questions, please feel free to call me at the number below.
Sincerely,
sherry R.
Cumberland County herift s office
I Courthouse Square, Room 303
Carlisle, PA 17013
717-240-6449
sWiU@ccpa.net