HomeMy WebLinkAbout12-3314
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12 MAY 25 PH I-: f C
CUMBERLAND C;1 ?
PENNSYLVANi-A'
P. Richard Wagner, Esquire
PA Supreme Court I.D. #23103
Mancke, Wagner & Spreha
2233 North Front Street
Harrisburg, PA 17110
Telephone (717) 234-7051
Fax (717) 234-7080
Attorney For Plaintiff
G. LEE SO ER and MARIAN B. IN THE COURT OF COMMON PLEAS
SOLIDER, his wife, CUMBERLAND COUNTY, PENNSYLVANIA
Plaintiffs,
V. : NO: 1.2,- 3.311
WHITETAIL WELDING &
DESIGN, LLC, and STEPHEN K.
KOUGH and DANIELLE M, KOUGH,
his wife,
Defendants.
: CIVIL ACTION - LAW
NOTICE
You have been sued in court. If you wish to defend against the claims set forth in the
following pages, you must take action within twenty (20) days after this Complaint and notice are
served, by entering a written appearance personally or by attorney and filing in writing with the
Court your (defenses or objections to the claims set forth against you. You are warned that if you
fail to do so the case may proceed without you and a judgment may be entered against you by the
Court without further notice for any money claimed in the Complaint or for any other claim or
relief requested by the Plaintiff. You may lose money or property or other rights important to
you.
YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO
NOT HAVE A LAWYER OR CANNOT AFFORD ONE, GO TO OR TELEPHONE THE
OFFICE SET FORTH BELOW TO FIND OUT WHERE YOU CAN GET LEGAL HELP.
CUMBERLAND COUNTY BAR ASSOCIATION ??,,? 'ct
2 LIBERTY AVENUE ,116 2, r7S
Carlisle, PA 17013 l
(717) 249-3166 PU 17,5777
N
NOTICIA
Les lean demandado a usted en la corte. Se usted guiere defenderse de estas demandas
expuestas er j las paginas siguientes, usted tiene viente (20) dias de plazo al partir de la fecha de la
demanda y 14 notificacion. Usted debe presentar una apariencia escrita o en persona o por
abogado y 41chhivar en la corte en forma escrita sus defensas o sus objeciones a las demandas en
conra de su persona. Sea avisado qui si usted no soe defiende, la corte tomara mmedidas y purde
entrar una orden contra usted sin previo aviso o notoficacion y pro cualquier queja o alivio que es
pedido en la'Ipeticion de demanda. Usted puede perder dinero o sus propiedades o otros derechos
importantes Oara usted.
LLEVE ESTA DEMANDO A UN ABODAGO IMMEDIATEMENTE. SI NO TIENE
ABOGADQ O SI NO TIENE EL DINERO SUFICIENTE DE PAGAR TAL SERVICIO, VAYA
EN PERSONA O LLAME FOR TELEFONO A LA OFICIAN CUYA DIRECCION SE
ENCUENTRA ESCRITA ABAJO PARA AVERIGUAR DONDE SE PUEDE CONSGUIR
ASISTENCiA LEGAL.
CUMBERLAND COUNTY BAR ASSOCIATION
2 LIBERTY AVENUE
Carlisle, PA 17013
(717) 249-3166
N
P. Richard Wagner, Esquire
PA Supreme ?ourt I.D. #23103
Mancke, Wagner & Spreha
2233 North Front Street
Harrisburg, PA 17110
Telephone (717) 234-7051
Fax (717) 2341-7080
Attorney for Plaintiff
G. LEE SOLIDER and MARIAN B. IN THE COURT OF COMMON PLEAS
SOLIDER, his wife, CUMBERLAND COUNTY, PENNSYLVANIA
Plaintiffs,
V. NO:
CIVIL ACTION - LAW
WHITETAIL, WELDING &
DESIGN, LLC, and STEPHEN K.
KOUGH and DANIELLE M, KOUGH,
his wife,
Defendants.
COMPLAINT
AND NOW, come the Plaintiffs, G. Lee Souder and Marian B. Souder, his wife, by and
through their attorneys, Mancke, Wagner & Spreha, and file the following Complaint:
1. The Plaintiffs, G. Lee Souder and Marian B. Souder, his wife, are adult individuals
residing at 250 N. Locust Point Road, New Kingston, Cumberland County, Pennsylvania.
2. The Defendant, Whitetail Welding & Design, LLC, is a limited liability company
having as an address 238 N. Locust Point Road, Building 2, Mechanicsburg, Cumberland
County, Pennsylvania.
3. The Defendants, Stephen K. Kough and Danielle M. Kough, his wife, are adult
individuals residing at 725 W. Siddonsburg Road, Dillsburg, York County, Pennsylvania.
4. At all times pertinent hereto, the Plaintiffs and Defendant Whitetail Welding &
Design, LLC had a Lease Agreement for property situate at 238 N. Locust Point Road, Building
2, Mechanicsburg, Cumberland County, Pennsylvania. A copy of a Lease Agreement is attached
hereto, incorporated herein by reference, made a part hereof, and marked as Exhibit A.
5. Although the attached copy of the Lease Agreement is a copy of that Lease
Agreement, 'ahe original was signed, although this is an unsigned copy of the original.
COUNTI
6. Paragraphs 1 through 5 above are incorporated herein by reference and made a part
hereof.
7. Pursuant to the Lease Agreement, Plaintiffs did lease property unto Whitetail Welding
& Design, LLC, at 238 N. Locust Point Road, Building 2, Mechanicsburg, Cumberland County,
Pennsylvania.
8. Pursuant to the terms of the Lease Agreement, rent in the amount of $1,200.00 per
month was due for the first twelve (12) months, $1,250.00 per month for the second twelve (12)
months, and $1,300.00 per month for the next twelve (12) months.
9. Defendants failed to pay sums due and owing the calendar year 2010 in the amount of
$10,569.95..
10. Defendants have not paid amounts owed for the calendar year 2011 in the amount of
$1,459.92.
-2-
11. As a result, the Defendants owe the Plaintiffs herein the sum of $12,029.87
representing] the total rents due from Defendants to Plaintiffs.
WHEREFORE, Plaintiffs request judgment against the Defendants in the amount of
$12,029. 87.
COUNT II
12. Paragraphs 1 through 11 above are incorporated herein by reference and made a part
hereof.
13. At all times relevant hereto the Defendants, Stephen K. Kough and Danielle M.
Kough, his wife, borrowed from the Plaintiffs the sum of $15,000.00 in the form of a personal
loan.
14. Defendants attempted to repay the personal loan on September 5, 2009, by issuing a
check to the Plaintiff, Lee Souder, however, the check was denied for insufficient funds. A copy
of said check is attached hereto, incorporated herein by reference, made a part hereof, and
marked as Exhibit B, as evidence of an attempt to repay said personal loan.
15. The personal loan from Plaintiffs to Defendants has not been repaid.
-3-
WHEREFORE, Plaintiffs request judgment against the Defendants in the amount of
$15,000.00, together with interest.
Respectfully Submitted,
Mancke, Wagner & Spreha
. agner, Esquire
I.D. # 23103
2233 North Front Street
Harrisburg, PA 17110
Attorney for Plaintiffs
Date: 411 5??
-4-
VERIFICATION
I verify that the statements made in the foregoing document are true and correct. 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: /21
THIS LEASE AGREEMENT
MADE and entered into this first (1") day of December, 2007, by and between:
G. LEE SOUDER and MARIAN B. SOUDER,
husband and wife, having an address for all purposes
hereunder of 250 North Locust Point Road, Mechanicsburg,
Pennsylvania, parties of the first part, hereinafter called "Lessors",
AND
WHITETAIL WELDING & DESIGN, LLC, a limited
liability company, having an address for all purposes hereunder
of 238 North Locust Point Road (Building #2),
Mechanicsburg, Pennsylvania 17050, party of the second
part, hereinafter called "Lessee":
WITNESSETH:
WHEREAS, Lessors are the owners of an industrial complex situated in Silver Spring
Township, Cumberland County, Pennsylvania, located in the Village of New Kingstown, on the
East side of North Locust Point Road, sometimes known generally as "rear of 238 Locust Point
Road", which is improved with various buildings containing individual rental units;
WHEREAS, Lessors desire to lease and rent Building 42 (hereinafter called "Demised
Premises") to Lessee, and Lessee desires to use and occupy the Demised Premises as a tenant of
rental property, said Demised Premises being more fully described in "Exhibit A" attached
hereto and incorporated herein by reference thereto; and
WHEREAS, the parties have negotiated certain terms, conditions, rights, privileges,
duties and undertakings which they seek to document permanently by these presents;
NOW, THEREFORE, in consideration of these presents and of the mutual terms,
promises, undertakings and conditions hereinafter set forth, and intending to be legally bound
hereby, the parties mutually agree as follows:
EXHIBIT g
ARTICLE I
INCORPORATION OF FOREGOING INTRODUCTION
.- e
Section 1.01. The foregoing preamble and paragraphs are incorporated herein by
reference thereto.
ARTICLE II
DEMISE - USE OF PREMISES - TERM OF LEASE
Section 2.01. Demise and Term. At the rentals and upon and subject to the conditions
and limitations hereinafter set forth, Lessors hereby let and demise unto Lessee, and Lessee
hereby takes and hires the Demised Premises from Lessors;
TO HAVE AND TO HOLD the Demises Premises unto Lessee for a term commencing at
12:01 o'clock A.M., prevailing time, on December 1, 2007, and expiring at midnight, prevailing
time, on November 30, 2010.
Section 2.02. Extension of Term. Lessee shall have the opportunity to extend the Term
aforesaid for twenty-four (24) months commencing at 12:00 o'clock A.M., prevailing time on
December 1,2010, and expiring at midnight, prevailing time on November 30, 2012, provided
given written notice of its intention to so extend to Lessor no later than noon, prevailing time, on
September 1, 2010.
Section 2.03. Use of Demised Premises. The Lessee's use of the Demised Premises
shall be limited to a place of business for the conduct of Lessee's welding and design business.
2
ARTICLE III
RENT
Section 3.01. Basic Rent for Term. Lessee shall pay to Lessors the sum of Forty-five
Thousand Four Hundred and No/100 Dollars ($45,000.00) as the basic rent for the (hereinafter
called "Basil Rent for Term") payable in thirty-six (36) regular and consecutive monthly
installments as follows:
One Thousand Two Hundred and No/ 100 ($1,200.00) Dollars per month for the
first twelve (12) months;
One Thousand Two Hundred Fifty and No/100 ($1,250.00) Dollars for
the second twelve (12) months; and
One Thousand Three Hundred ($1,300.00) Dollars for the third twelve (12)
months.
Said installments to be paid on the first day of each calendar month in advance of each month of
occupancy of said Term. Lessors acknowledge receipt of the first such installment.
Section 3.02. Basic Rent for Extended Term. Lessee shall pay to Lessors the sum of
Thirty-Three Thousand and No/100 ($33,000.00) Dollars as the basic rent for extended term
payable in twenty-four (24) regular and consecutive monthly installments as follows:
One Thousand Three Hundred Fifty and No/100 ($1,350.00) Dollars for the
first twelve (12) months of said extended term; and
One Thousand Four Hundred and No/100 ($1,400.00) Dollars for the
second twelve (12) months of such extended term.
Section 3.03. Discount for Early Payment. In the event Lessee elects to prepay rent for
three (3) monthly installments at a time, it shall have the right to deduct Three Hundred
($300.00) Dollars for each such three-month early payments.
3
COMPLIANCE WITH LAW
Section 4.01. Compliance with Law, etc. Lessee shall, at Lessee's sole cost and
expense, promptly comply with all Legal Requirements affecting the use of the Demised
Premises thereof, including the making of unforeseen or extraordinary changes. The term "Legal
Requirements" as used herein shall mean (a) all laws, statutes, codes, acts, ordinances, orders,
judgments, decrees, injunctions, directions, rules, regulations, requirements, permits, licenses
and authorizations of all governments, departments commissions, boards, courts, authorities,
agencies, officials and officers de jure or de facto, (b) the requirements of all policies of general
or public liability, fire and other insurance which either party hereto is required hereby to
maintain with respect to the Demised Premises, and (c) all building and use restrictions and other
conditions and limitations appearing in the chain of title to, or otherwise affecting, the Demised
Premises.
Section 4.02. Contest of Legal Requirements. Lessee shall have the right to contest,
by appropriate proceedings diligently conducted in good faith in the name of Lessee or Lessors
or in the names of all of them, without cost or expense to Lessors, the validity or application of
any Legal Requirement; provided, that the delay in conformance to, compliance with,
observance of, or avoidance or elimination of violation of the same, attendant upon and pending
the prosecution of such proceedings, shall not subject Lessors to any criminal liability. Upon
request by Lessee, Lessors shall execute and deliver any and all such lawful documents or
instruments and shall take any and all such other lawful action as shall be reasonably necessary
or proper to permit Lessee to so contest the validity or application of any such law, ordinance,
rule, regulation, requirement, covenant, condition or restriction, or to facilitate the conduct of
such contest by Lessee. Lessee covenants to indemnify and save Lessors harmless from any
liability for the payment of any costs or expenses in connection with any such contest.
ARTICLE V
SURRENDER
Section 5.01. Surrender Covenant. Subject to the provisions of this Lease, Lessee
shall and will, on the last day of the Term, or upon any earlier termination hereof, well and truly
surrender and deliver up the Demised Premises into the possession and use of Lessors without
fraud or delay and in good order, condition, and repair (except reasonable wear and tear), free
and clear of all occupancies, and free and clear of all liens and encumbrances created by any act
or omission of Lessee.
Section 5.02. Removal of Lessee's Property. Provided Lessee is not in default
hereunder, any and all furniture, fixtures, equipment, machinery and appliances of any kind and
nature, whether attached to the Demised Premises or not, used or installed for use primarily in
the operation and maintenance of Lessee's business, if such property shall not have been
furnished or 'Installed by or at the expense of Lessors, are excluded from this Lease and shall be
removed by Lessee on the last day of the term hereof. Lessee shall pay or cause to be paid to
Lessors the cost of repairing any damage to the Demised Premises arising from the removal of
such property.
Section 5.03. Abandonment of Lessee's Property. Any property of Lessee described in
Section 5.02' above which shall remain in or on the Demised Premises upon the expiration of the
then expire&term, may, at the option of Lessors, be deemed to have been abandoned by Lessee
and either may be retained by Lessors as their property or be disposed of, without accountability,
5
In -,i r qs Les-ors may see ft. Lessee shall reimburse Lessors upon demand for
Lessors' actual costs and expense of removing any abandoned property less only any proceeds of
sale actually realized by Lessors upon disposition of such abandoned property.
Section 5.04. Survival. The provisions of this Article V shall survive any termination
of this Lease.
ARTICLE VI
INSURANCE
Section 6.01. Lessors to Obtain Casualty Insurance. Lessors shall obtain such fire
and other casualty insurance covering the Demised Premises through such companies and on
such terms as they may determine from time to time in order to protect their investment therein
to the extent of replacing the improvements on the Demised Premises.
Section 6.02. Lessee to Reimburse for Increased Premium. Lessee agrees to pay to
Lessors within thirty (30) days after delivery of Lessors' invoice to Lessee any increase in
insurance premiums on the Demised Premises above the normal amounts but for Lessee's use,
caused by Lessee's use of, storage in or other activity conducted on the Demised Premises, said
amount shalllbe considered as Additional Rent.
Section 6.03. Lessee's Obligation to Keep Liability Insurance. At its sole cost and
expense and without reimbursement or contribution from Lessors, Lessee shall keep the Demised
Premises insured at all times during the continuance of this lease with general liability insurance
covering the legal liability of Lessors and Lessee against claims for any bodily injury or death of
persons and for damage or destruction of property, occurring on, in or about the Demised
Premises and its appurtenances and arising out of the use and occupation of the Demised
Premises by Lessee, with minimum coverages of $5,000,000.00 General Aggregate Limit,
1
51,000,000.00 Each Occurrence Limit and $100,000.00 Medical Expense Limit, and such
insurance shall name as the insured parties thereunder both Lessors and Lessee, and Lessee shall
provide certificates of such insurance and true and complete copies of all policies to Lessors at
all times.
Section 6.04. Lessee's Obligation to Keep Other Insurance. At its sole cost and
expense and without reimbursement or contribution from Lessors, Lessee shall obtain, keep and
maintain at all times during the continuance of this lease, workers' compensation coverage with
regard to any employees with a minimum equivalent to the statutory limits of the state having
jurisdiction, and Lessee shall provide to Lessors certificates of such insurance by the insurer.
Section 6.05. Lessors' Non-liability to Insure Contents. Lessors shall have no
responsibility to provide or maintain any fire or other casualty insurance for the protection of
Lessee's individually owned property or the property of third parties on or in the Demised
Premises. It is understood and agreed that Lessee shall be solely responsible for insuring or
otherwise protecting such other property against loss or destruction from any cause whatsoever.
ARTICLE VII
RIGHT TO PERFORM LESSEE'S COVENANTS
Section 7.01. Lessors' Right. If at any time Lessee shall fail to make any payment or
perform any other act under this Lease required to be made or performed by Lessee, then Lessors
after five (5) days' notice to Lessee (or without notice in case of an emergency) and without
waiving or releasing Lessee from any obligation or default under this Lease, may at any time
thereafter (but shall be under no obligation to) make such payment or perform such act for the
account and the expense of Lessee, and Lessors and the authorized representatives of Lessors
may enter upon the Demised Premises for the purpose and take all such action thereon as may be
7
necessary therefor. All sums so paid by Lessors and all costs and expenses incurred by Lessors
in connection with the performance of any such act shall constitute Additional Rent payable by
Lessee to Lessors on demand.
ARTICLE VIII
REPAIRS AND MAINTENANCE
Section 8.01. Repairs Generally. During the term of this Lease, Lessee, at its sole cost
and expense,:, shall take good care of the Demised Premises and shall, subject to reasonable wear
and tear, keep the same in good order and condition, and make all necessary interior repairs
thereto. When used in this Article VIII, the term "repairs" shall include all necessary
replacements and alterations. All repairs made by Lessee shall be substantially equivalent in
quality and workmanship to the original work.
Section 8.02. Maintenance. Lessee shall promptly and with due diligence put, keep and
maintain all portions of the Demised Premises in a clean and orderly condition, free of dirt,
rubbish and unlawful obstructions, and shall remove regularly all garbage, trash and rubbish
from the Demised Premises at its sole cost and expense. Outside storage of anything is strictly
prohibited; all materials of whatever kind or character must be kept inside the building on the
Demised Premises.
Section 8.03. Lessee's Primary Responsibility. Except only as provided otherwise in
Section 8.05 hereinbelow, Lessors shall not be required to furnish any services or facilities or to
make any repairs inside the Demised Premises, and Lessee hereby assumes the full and sole
responsibility for the condition, operation, repair, replacement, maintenance and management of
the Demised', Premises.
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Section 8.04. Waste. Lessee shall not cause or permit any waste or damage,
disfigurement or injury to the Building or any part thereof.
Section 8.05. Lessors' Responsibility to Repair and Maintain. Notwithstanding
anything to the contrary hereinbefore provided, Lessors at their sole cost and expense shall be
responsible far:
a. The structural repair of the exterior walls, basic floor (excluding any
coverings) and roof of the building for damages or deterioration not caused by Lessee.
b. The routine maintenance and repair of the exterior paved surfaces,
including parking lot.
Lessee shall provide Lessors with a pass-key to the Demised Premises for which
emergency access may be required to perform the foregoing obligations.
Lessee agrees to reimburse Lessors for the cost of any repairs made by Lessors under the
foregoing provisions which were necessitated by damages caused by the negligent or intentional
conduct of Lessee.
Section 8.6. Removal of Snow and Ice. Lessee, at its sole cost and expense, shall keep
the designated parking area on the Demised Premises reasonably free of ice and snow. Lessors
agree to keep the common access driveway to and from North Locust Point Road reasonably free
of ice and snow.
ARTICLE IX
UTILITIES, MUNICIPAL SERVICES AND FUEL
Section 9.01. Lessee's Obligations. Lessee shall pay the fees and charges for all public
utilities serving the Demised Premises. Said charges shall be paid to the provider thereof in
accordance with its applicable rates. If any such charge is assessed against Lessors, Lessee will
reimburse Lessors for the same as Additional Rent on the same terms and conditions as imposed
by the Provider.
The Demised Premises is currently served by an on-site sanitary sewerage disposal
system which will be maintained and repaired by Lessors. Lessee shall reimburse Lessors for
any expenses caused by Lessee's improper use of the disposal system. In the event the Demised
Premises is connected to a municipal sewerage system, Lessee shall pay the user fees and
charges.
Section 9.02. Lessee to Supply Fuel. Lessee agrees to procure and pay for all fuel used
to heat the Demised Premises.
ARTICLE X
ALTERATIONS AND SIGNS
Section 10.01. Lessee Permitted to Alter Premises. Subject to the provisions of
Section 10.012, Lessee at its sole cost and expense may make such alterations to the Demised
Premises as may be reasonably necessary for the continuation or improved operation of its
business activities.
Section 10.02. Requirements and Restrictions of Alterations. No alteration of the
Demised Premises shall be permitted which will adversely affect the structural integrity of the
building of the Demised Premises. No alteration shall be performed until approval in writing is
granted by Lessors based upon comprehensive plans and specifications of the proposed
alteration, Which approval shall not be unreasonably withheld or delayed. All such alterations
shall become the property of Lessors upon construction and shall not be removed by Lessee upon
termination of this Lease, unless specifically otherwise agreed in writing.
Section 10.03. Identification Signs. Lessee shall have the right to install and maintain
(at its sole cost and expense) modest signs identifying its occupancy of the Demised Premises,
provided that all such signs shall comply with all governmental codes and regulations, and shall
be subject to Lessors' prior written approval, which approval shall not be unreasonably withheld
or delayed.
ARTICLE XI
LIENS
Section 11.01. Lessee's Obligations. Lessee will not create or permit to be created or to
remain, and covenants to remove and discharge promptly, at its cost and expense, all liens,
encumbrances and charges upon the Demised Premises or Lessee's leasehold interest or other
estate therein which arise out of Lessee's use or occupancy of the Demised Premises (including
municipal lions for services) or by reason of labor or materials furnished or claimed to have been
furnished to Lessee or any construction, alteration, addition or repair of any part or the Demised
Premises; provided, Lessee shall have the right to contest the amount or validity or any such lien,
encumbrance or charge.
ARTICLE XII
INSPECTION OF DEMISED PREMISES BY LESSORS
Section 12.01. Inspection. Subject to Lessee's usual security rules, Lessee agrees to
permit Lessors or their duly authorized representatives to enter the Demised Premises at all
reasonable titres during usual business hours for the purpose of (a) inspecting the same and (b)
making any repairs to the Demised Premises or perfonning any work thereon which shall. be
necessary by reason of Lessee's failure to make such repairs or perform such work, or to
11
commence the same within five (5) days after written notice from Lessors. Lessors a free,
however, in connection with the doing of such work, to cause as little inconvenience, annoyance,
disturbance, loss of business or other damage to Lessee as may reasonably be possible in the
..e
circumstances. Nothing herein shall imply any duty or obligation upon the part of Lessors to
make any repairs or to perform any work which Lessee is required to make or perform under any
provision of this Lease and the making or performing thereof by Lessors shall not constitute a
waiver of Lessee's default in failing to make or perform the same.
ARTICLE XIII
INDEMNIFICATION OF LESSORS
Section 13.01. Indemnity. Lessee shall protect, defend, indemnify and save harmless
Lessors against and from any and all claims by or on behalf of any person arising during any
term of this Lease from (a) the conduct or management of or from any work or thing whatsoever
done by Lessee or its agents, contractors, employees, licensees or sub-tenants, in or on the
Demised Premises, or (b) any breach or default on the part of Lessee in the performance of any
covenant or obligation on the part of Lessee to be performed pursuant to the terms of this Lease,
or (c) any act, of negligence of Lessee or any of its agents, contractors, employees, licensees or
sub-tenants, with respect to the Demised Premises, or (d) any accident, injury or damage
howsoever caused during the term of this Lease to any person in or on the Demised Premises and
against and from all liability in connection with any and all costs and expenses (including
counsel fees)', reasonably incurred with respect to any such claim or any action or proceeding
brought against Lessors thereon; provided Lessors shall notify Lessee of such claim and Lessee
shall have the right to resist or defend the claim as hereinafter set forth. In case any action or
proceeding be brought against Lessors by reason of any such claim, Lessee covenants upon
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notice from Lessors to resist or defend such action or proceeding, and Lessors will cooperate and
assist in the defense of such action or proceeding if reasonably requested so to do by Lessee.
ARTICLE XIV
DAMAGE AND DESTRUCTION
Section 14.01. Minor Loss. If the building on the Demised Premises is damaged or any
part thereof is destroyed by any hazard, risk or casualty, and the estimated cost of the repair,
restoration of rebuilding of the portion of the building so damaged or destroyed (hereinafter
called "Damaged Property") is less than $25,000.00, Lessors shall promptly commence and
diligently prosecute the repair, restoration or rebuilding of the Damaged Property as nearly as
possible to the condition thereof as it existed prior to such damage or destruction. Lessors' repair
shall not constitute a waiver or release of Lessee's liability to Lessors for any casualty loss
caused by Lessee.
Section 14.02. Major Loss. If such estimated cost with respect to any one occurrence
is $25,000.00 or more, Lessors shall have the right at their election (a) to repair, restore or
rebuild the Damaged Property, or (b) to terminate this Lease by giving Lessee within ten (10)
days after the damage or destruction at least sixty (60) days' prior notice specifying the
termination date, in which event Lessee shall surrender the Demised Premises to Lessors, upon
which event the tenancy hereunder shall cease and terminate.
Section 14.03. Abatement of Rent. For any period during any time in which the said
Demised Premises or any part thereof is unfit for the purposes leased due to damage or
destruction, beyond Lessee's control or not caused by Lessee's fault, the Basic Rent shall be
abated; otherwise, the rent shall not be abated by reason of loss of use due to damage or
destruction.
ARTICLE XV
CONDEMNATION
Section 15.01. Condemnation. If the whole or any part of the Demised Premises
during the term hereof is taken or condemned under the power of eminent domain, by the
federal, state or local governmental authorities or by any non-governmental body, authority or
corporation having the power of eminent domain, the following provisions shall be controlling
and followed;
(a) Termination and Abatement. This Lease shall terminate as to such part so
taken or condemned; and in the event of a partial taking, the rent specified in Section 3.01
shall abate in the proportion that the value of the property taken bears to the value of the
entire'Demised Premises.
(b) Lessors' Right to Seek Damages. Lessors alone shall be entitled to seek
and recover any damages or compensation payable by the condemnor or make settlement
in lieu thereof with the condemnor, as related to the taking of, damage to, or diminution
in value of the Demised Premises and the improvements erected on or located thereon
occasioned thereby and any additional compensation which may be payable under the
law for the taking. Lessee shall retain the right to seek damages for the loss of his
occupancy of the Demised Premises.
(c) Adjustment of Rent. In the event of a taking in fee or of easement or any
lesser' interest in the Demised Premises, rent shall be abated as provided in Sub-section
(a) above; and such abatement shall be as of the date on which Lessee is required to
surrender possession of the area taken to the condemnor or the date on which Lessee is
14
required to pay rental or like charge to the condemnor in order to remain in possession for
any period beyond such time.
ARTICLE XVI
ASSIGNING - HOLDING OVER
Section 16.01. No Right to Sublet, Assign or Mortgage. Lessee may not sublet all or
any part of the Demised Premises nor assign or mortgage this lease. Any such attempted
subletting, assignment or mortgage shall be void.
Section 16.02. Holding Over. If Lessee holds over or remains in possession of the
Demised Premises after the termination of the Term, without any new lease of the Demised
Premises befog entered into between Lessors and Lessee, such holding over or continued.
possession shall, if rent is paid by Lessee and accepted by Lessors, create a tenancy from month-
to-month only, subject to continued payment of the monthly rent at the rate in effect immediately
prior to such ;termination and upon all of the provisions and conditions of this Lease (other than
length of term or cancellation provisions herein contained), which tenancy may at any time be
terminated by either party on thirty (30) days' prior written notice to the other party.
ARTICLE XVII
CONDITIONAL LIMITATIONS - DEFAULT PROVISIONS
Section 17.01. Event of Default. Any of the following occurrences or acts shall
constitute an ,Event of Default under this lease: (i) if Lessee (regardless of the pendency of any
bankruptcy, reorganization, receivership, insolvency or other legal or administrative proceedings
which may prevent Lessee from complying with the terms of this Lease) shall (a) default in
making any payment of rent, additional rent or other sum herein required to be paid by Lessee
pursuant to the terms hereof, or (b) default in the observance or performance of any other
coven,-,-,t, -grcement or obligation of Lessee hereunder, and if such default shall continue as to
(a) for five (5) days after Lessors shall have given notice to Lessee that such payment has
become due, or as to (b) for ten (10) days after Lessors shall have given notice to Lessee
.. =B
specifying such default (or, in the case of any default referred to in clause (b) which cannot with
diligence be cured within such ten-day period, if Lessee shall fail to proceed promptly to cure the
same and thereafter prosecute the curing of such default with diligence, it being intended, in
connection with a default not susceptible of being cured with diligence within such period, that
the time of Lessee within which to cure the same shall be extended for such period as may be
necessary to complete the curing of the same with diligence); or (ii) if Lessee shall file a petition
in bankruptcy or for reorganization or for an arrangement for any other relief pursuant to the
federal Bankruptcy Act or under any similar federal, or state law or shall be adjudicated a
bankrupt or insolvent or shall make an assignment for the benefit of creditors or shall admit in
writing Lessee's inability to pay Lessee's debts generally as they become due, or if a petition or
answer proposing the adjudication of Lessee or any such owner as a bankrupt or their
reorganization under the federal Bankruptcy Act or any similar federal or state law shall be filed
and such petition or answer shall not be discharged or denied within thirty (30) days after the
filing thereof, or (iii) if a receiver, trustee or liquidator of Lessee or of any such owner or of all or
substantially all of the property of Lessee shall be appointed in any proceeding brought by
Lessee, or if any such receiver, trustee or liquidator shall not be discharged within thirty (30)
days after such appointment, or (iv) if the estate or interest of Lessee shall be levied upon or
attached in any proceeding and such process is not vacated or discharged within thirty (3 0) days
after such levy or attachment.
,gin '7.02. Tea rnl aation and Re-Entry. (a) This Lease and the estate hertiby
granted are subject to the limitation that whenever an Event of Default shall have happened and
be continuing, Lessors shall have the right (and notwithstanding the fact that Lessors may have
._o
some other remedy hereunder or at law or in equity) to give Lessee notice of Lessors' intention
to terminate the term hereof on a date specified in such notice, which date shall not be less than
twenty (20) days after the date of giving of such notice, and upon the giving of such notice, the
Term hereof and the estate hereby granted shall expire upon the date so specified in said notice
with the same effect as if the date specified in such notice were the date hereinbefore fixed for
the expiration of the final term of this Lease, and all rights of Lessee hereunder shall expire, but
Lessee shall remain liable as hereinafter provided; (b) in the event any such notice is given,
Lessors shall',have the immediate right of re-entry and possession of the Demised Premises; (c)
should Lessors re-enter as herein provided or take possession pursuant to legal proceedings or
any notice provided for by law, Lessors may from time to time re-let the Demised Premises or
any part thereof for such terms and at such rentals and upon such conditions as Lessors may
deem advisable; and (d) upon such expiration of the term hereof and the estate hereby granted,
Lessors shall 'be entitled to recover, in addition to any and all sums and damages for violation of
Lessee's obligations hereunder in existence at the time of such termination, damages for Lessee's
default in an amount equal to the amount of the Basic Rent reserved for the balance of the then
current term of this Lease, as well as all other charges, payments, costs and expenses herein
agreed to be paid by the Lessee, all discounted to their then present worth, at a discount rate of
6% per annum.
Section 17.03. Remedies Not Exclusive, Etc. No right or remedy herein conferred
upon or reserved to Lessors is intended to be exclusive of any other right or remedy, and every
a,
right and remedy shall be cumulative and in addition to any other right of remedy given
hereunder or now or hereafter existing at law. The failure of Lessors to insist upon the strict
performance of any covenant or agreement or to exercise any option, right, power or remedy
contained in this Lease shall not be construed as a waiver or relinquishment thereof for the
future. A receipt by Lessors of any rent or other sum payable hereunder, with knowledge of the
breach of any covenant or agreement contained in this Lease shall not constitute a waiver of such
breach (other than the prior failure to pay such Rent or other sum) and no waiver by Lessors of
any provision of this Lease shall be deemed to have been made unless expressed in writing and
signed by Lessors. Lessors shall be entitled, to the extent permitted by law, to injunctive relief in
case of the violation, or attempted or threatened violation, of any covenant, agreement, condition
or provision of this Lease or to a decree compelling performance of any covenant, agreement,
condition or provision of this Lease or to any other remedy allowed by law.
ARTICLE XVIII
QUIET ENJOYMENT - MORTGAGE PAYMENTS - CONVEYANCE BY LESSORS
Section 18.01. Quiet Enjoyment. Lessee, upon paying the Basic Rent and other
charges herein provided for and observing and keeping all covenants, agreements and conditions
of this Lease !on its part to be kept, shall quietly have and enjoy the Demised Premises
throughout the term of this Lease without hindrance or molestation by Lessors or by any one
claiming through Lessors, subject, however, to the exceptions, reservations and conditions of this
Lease.
Section 18.02. Mortgage Payments. Lessors covenant and agree to pay when due all
installments of principal and interest payable under any mortgage loan secured upon the fee of
-t n
the Demised Premises, and to observe and perform all other terms, covenants and conditions of
any such mortgage.
Section 18.03. Conveyance by Lessors. If Lessors or any successor owner of the
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Demised Premises shall convey or otherwise dispose of the Demised Premises, thereupon all
liabilities and obligations on the part of Lessors or such successor owner under this Lease shall
be binding upon the transferee of the Demised Premises; and, if in addition, Lessors or such
successor owner shall turn over to such transferee any and all funds held by it hereunder in
which Lessee has an interest hereunder, and such transferee shall in writing expressly assume
Lessors' obligations hereunder with respect to such funds, thereupon all such liabilities and
obligations on the part of Lessors or such successor owner under this Lease, accruing after such
conveyance or disposal and assumption, shall terminate.
ARTICLE XIX
LESSEE'S RIGHT TO PERFORM LESSORS' COVENANTS
Section 19.01. Lessee's Right. If at any time Lessors shall fail to make any payment or
perform any other act required to be made or performed by Lessors, then Lessee, after ten (10)
days' notice to Lessors (or without notice in case of an emergency) and without waiving or
releasing Lessors from any obligation of Lessors under this Lease, may make such payment or
perform such other act, but without any obligation to do so. All sums so paid by Lessee and all
costs and expenses, including all reasonable legal fees, incurred by Lessee in connection with the
performance',of any such act shall be paid by Lessors to Lessee on demand or Lessee may set-off
such sums against the amount of subsequent installments of Basic Rent thereafter becoming due.
Without limiting the effect of the foregoing, and upon Lessors' failure to pay any debt secured
on the Demised Premises, Lessee shall have the right at any time and from time to time to make
payments directly to Lessors' lender on account of principal and accrued interest on any
Mortgage Loan made to Lessors and to take credit for such payments against amounts otherwise
payable as Basic Rent hereunder.
ARTICLE XX
PAYMENTS, NOTICES AND APPROVALS
Section 20.01. Manner of Payments and Notices. Any payment to be made under this
Lease from Lessee to Lessors or vice versa (or to or from a successor or assignee of Lessors)
shall be made in cash or by check or checks payable to the order of Lessors or Lessee, as the case
may be, except that, if Lessors designate another party as the payee hereunder, then such
payment shall be made in cash by check or checks payable to the order of the party so
designated. All notices, approvals, waivers, consents and other instruments required or permitted
to be given under this Lease shall be in writing and shall be properly given and all payments
shall be properly made, if sent by registered or certified United States mail, postage prepaid, to
the addresses appearing in the preamble of this document.
Section 20.02. Change of Address. Lessors and Lessee shall each have the right, from
time to time, to specify as its or their proper address for purposes of this Lease Agreement any
other address',upon giving five (5) days' notice thereof to the other parties entitled to receive
notices hereunder.
ARTICLE XXI
SUCCESSORS AND ASSIGNS - RULES OF INTERPRETATION
Section 21.01. Binding Effect. All covenants, conditions and obligations contained in
this Lease shill be binding upon and inure to the benefit of the respective heirs, personal
representatives, successors and assigns of Lessors and Lessee to the same extent as if each such
heir, personal representative, successor and assign were named as a party to this Lease; subject
nevertheless, to the provisions of this Lease. This Lease may not be changed, modified or
..a
discharged except by a writing signed by Lessors and Lessee. The foregoing provisions shall not
abrogate or modify the provisions of Section 16.01 hereof.
Section 21.02. Rules of Interpretation. The parties hereto further covenant and agree:
a. Separability. Each covenant and agreement contained in this Lease shall
for alb! purposes be construed to be a separate and independent covenant and agreement.
If anyterm or provision of this Lease or the application thereof to any person or
circumstances shall to any extent be invalid and 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 shall be enforced to the extent
permitted by law; provided, however, if Lessee's covenants under Article III hereof shall
be invalid or unenforceable, then in such event, at Lessors's option, Lessors shall be
entitled to recover damages pursuant to subsection (d) of Section 17.02 hereof.
b. Headings. The headings to the various paragraphs of this Lease have been
inserted for convenience reference only and shall not modify, amend or change the
express terms and provisions of this Lease.
ARTICLE XXII
SUBORDINATION TO MORTGAGES
Section 22.01. Future Subordination. If for any reason it shall be necessary for
Lessors to use the Demised Premises as collateral for any future loan, Lessee covenants and
21
.W
agrees that its rights hereunder are and shall be subordinate in interest to the lien and obligation
of any future mortgage, and that it will execute, acknowledge and deliver such documents as
may be reasonably required by a lender to confirm the subordinate status of this Lease and
Lessee's rights hereunder.
ARTICLE XXIII
SECURITY/DAMAGE DEPOSIT
Section 23.01. Deposit. Lessee has deposited with Lessors (which deposit Lessors
acknowledges receipt) the sum of
($ ) Dollars
as a fund on account for discharging Lessee's obligations hereunder, which sum Lessors shall
hold and retain throughout the Term of this Lease without interest.
Section 23.02. Use of Deposit. Lessors shall be entitled to use and consume all or any
part of the above deposited amount to apply on account of any of Lessee's unpaid financial
obligations under this Lease of whatever kind or nature after default and/or for repair or
restoration of the Demised Premises.
Section 23.03. Replenishment of Deposit Fund. If any portion of the sum so deposited
is used or consumed during the Term of this Lease, Lessee shall pay to Lessors the amount of
such deficit upon ten (10) days' written notice in order to replenish and restore the balance of
said fund to the amount specified in Section 23.01.
Section 23.04. Return of Deposit. Lessors shall return to Lessee within thirty (30) days
after the voluntary and satisfactory surrender of the Demised Premises upon the expiration of
said Term such remaining amount of said deposit after reservation of any amounts needed to
repair or restore the Demised Premises to the condition required under Section 5.01 hereinabove.
?M
IN WITNESS WHEREOF, the parties have caused these presents to be duly executed the
G. Lee Souder
Marian B. Souder
(SEAL)
(SEAL)
WHITETAIL WELDING & DESIGN, LLC
By
Member
c. J
day and year first written above.
WITNESSED BY:
(SEAL)
1
EXHIBIT A
DESCRIPTION OF DEMISED PREMISES
Building Number: #2
Area of Building 42: Approximately 4,000 square feet
Description of Parking Area:
24
zip
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DANIELLE M KOUGH .c 8264<2"',13 '-
182651821
STEPHEN K KOUGH
725 W SIDDONSBURG RD.
DILL58URG, PF 17019 _-?' ! "`
Le e, ?Arc
SMEMBERS Ilt -
FEDERAL CREDIT UNION {[ \
Weclwilnbucg, PA?70 ;t„ ,y71 `r w l
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EXHIBIT
•
AFFIDAVIT OF SERVICE
G. L..ee SOLIDER. and
Marian B.SUDEi2. his wife : IN THF_, COURT OF COMMON PLEAS
Plaintiffs :CUMBERLAND COUNTY, PENNSYLVANIA
vs.
No. 2012-03314
V4~HITETAIL WELDING & DESIGN, ~ -= -
LL,C and Stephen K. KOUGH and :CIVIL ACTION -LAW
Danielle M. KOUGH, his wife - _
:., .
Defendants -
_.
. _ -, --. .
,.
.. _,
1. Matthew E. Hunt of Matthew E. Hunt Private Investigations,, 2281 Forest.
I Iills Drivc, Harrisburg, Dauphin County, PA 171 12-1035, being duly sworn according: tc~
law. do depose and state that I personally hand delivered a true and correct COMPLAINT
IN CIVIL ACTION -LAW issued in Cumberland County Court at the request of P. Kichard
Wagner. Esquire. on behalf of G. Lee and Marian B. SOLIDER, plaintiffs, to Defendant
Stephen K. KOUGH at his residence located at 725 W. Siddonsburg Road, Dillsburg. F'a. at
5:20 PM on Wednesday, June 20~', 2012 who accepted three (3) different! said COMPLAINTS
for WHITETAIL WELDING & DESIGN, LLC, Danielle M. KOIIGH, h:is wife, and far himself -
all being co-defendants -for further action on their part as they deem necessary.
r ~ -;~--'
Server: ~~ ~ ~ ~ r~,- ~~ .~,~, ~::.,! __..-
Matthew E. Hunt
Private Investigator
2281 Forest Hills Drive
Harrisburg, Pa. 171 i 2
P. Richard Wagner, Esquire
PA Supreme Court LD. #'23103
Mancke, Wagner & Spreha
2233 North Front Street
Harrisburg, PA 171 10
Telephone (717) 234-7051
Fax (717)234-7080
Attorney for Plaintiff
-. , ,~ ~.
~: ,
G. LEE SOLIDER and MARIAN B
SOLDER, his wife,
Plaintiffs,
v.
WHITETAIL WELDING &
DESIGN. LLC, and STEPHEN K.
KOUGH and DANIELLE M, KOUGH,
his wife,
Defendants.
TO THE PROTHONOTARY:
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PENNSYLVANIA
NO: 2012-03314
CIVIL ACTION -LAW
PRAECIPE
Please enter default judgments against the Defendants in the amounts of $12,029.87, and
$15,000.00 respectively, together with interest pursuant to Pa.R.C.P. 1037(d).
Respectfully Submitted,
Date: ~ -~ ~ ,
~~~ ~ ~G ~ s~ ~ a!+~
C~~~ as3
~~ a$1 ~
n Li.., rA~A'~n
Q,~~~\la.S(~ a~
Ck ~ ~3~a
~~ aaa 3c~8
Noh c~ Mai )Qc~
2233 North Front Street
Harrisburg, PA 17110
Attorney for Plaintiffs
P. Richard 'Wagner, Esquire
PA Supreme Court LD. #'23103
Mancke, Wagner & Spreha
2233 North Front Street
Harrisburg, PA 171 10
Telephone (.717) 234-7051
Fax (717) 234-7080
Attorney for Plaintiff
G. LEE SOLIDER and MARIAN B
SOLIDER, his wife,
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PENNSYLVANIA
Plaintiffs,
~. NO: 2012-03314
CIVIL ACTION -LAW
WHITETAIL WELDING &
DESIGN, LLC, and STEPHEN K.
KOUGH and DANIELLE M, KOUGH,
his Wife,
Defendants.
CERTIFICATION
THF. UNDERSIGNED certifies that Notice of this judgment being entered against the
Defendanls was personally served on the Defendants on .Iuly l 6, 2012 at 7:50 p.m.
Respectfully Submitted,
Date: . ; ,,:, , ; ~.
vv// a\V1 ~1111V111 VL1 t.4L
Harrisburg, PA 17110
Attorney for Plaintiffs
AFFIDAVIT OF SERVICE
G. Lee SOLIDER. and
Marian B.SUDER. his wife
Plaintiffs
vs.
WHITETAIL WELDING & DESIGN,
LLC and Stephen K. KOUGH and
Danielle M. KOUGH, his wife
Defendants
IN THE COURT OF COMMON PLEAS
1, Matthew E. Hunt of Matthew E. Hunt Private Investigations, 2281 Forest
Hills Drive, Harrisburg, Dauphin County, PA 1711.2-1035, being duly sworn according to
law, do depose and state that I personally hand delivered a true and correct COMPLAINT
IN CIVIL ACTION -LAW issued in Cumberland County Court at the request of P. Richard
Wagner, Esquire, on behalf of G. Lee and Marian. B. SOLIDER, plaintiffs, to Defendant
Stephen K. KOUGH at his residence located at 725 W. Siddonsburg Road, Dillsburg. Pa. at
5:20 PM on Wednesday. June 20~', 2012 who accepted three (3) different said COMPLAINTS
for WHITETAIL WELDING & DESIGN, LLC, Danielle M. KOUGH, his wife, and for himself -
all being co-defendants -for further action on their part as they deem necessary.
~t '
Server: ~~` ~ _ ` I `~•: ~ f~ -t
Matthew E. Hunt J~-
Private Investigator
2281 Forest Hills Drive
Harrisburg, Pa. 1 ? 1 12
1L ED-
C; THE PRO T'Hop4cj
2013 MAR 22 P" 1: 07
CUMBERLAND C O U,J-y
PEN�SYLVANIA
Keith O.Brenneman,Esquire
Attorney ID#47077
Snelbaker&Brenneman,P.C.
44 West Main Street
Mechanicsburg,PA 17055
(717)697-8528
Attorneys for Plaintiffs G.Lee Souder and Marian B. Souder
G. LEE SOUDER and MARIAN B. : IN THE COURT OF COMMON PLEAS
SOLIDER, his wife, : CUMBERLAND COUNTY,PENNSYLVANIA
Plaintiffs
NO. 2012-03314
V.
WHITETAIL WELDING&DESIGN, CIVIL ACTION- LAW
LLC, and STEPHEN K. KOUGH and
DANIELLE M. KOUGH,his wife,
Defendants
PRAECIPE TO ENTER APPEARANCE
TO THE PROTHONOTARY:
Please enter the appearance of Keith O. Brenneman,Esquire as attorney for the Plaintiffs
in the above action,together with P. Richard Wagner,Esquire.
SNELBAKER&BRENNEMAN,P. C.
It-�.,..•.
Date: March 22,2013 By:
Keith O.Brenneman,Esquire
Attorney ID No.47077
LAW OFFICES 44 W.Main Street
SNELBAKER& Mechanicsburg,PA 17055
BRENNEMAN, P.C. (717)697-8528
Attorneys for Plaintiffs
2013 APR -5 PM 12: 5
CUMBERLAND Cv�� t�
PENNSYLVANIA
G. LEE SOUDER and MARIAN B. IN THE COURT OF COMMON PLEAS
SOUDER, his wife, CUMBERLAND COUNTY, PENNSYLVANIA
Plaintiffs
NO. 2012-03314
V.
WHITETAIL WELDING& DESIGN, CIVIL ACTION - LAW
LLC, and STEPHEN K. KOUGH and
DANIELLE M. KOUGH,his wife,
Defendants
PRAECIPE TO WITHDRAW APPEARANCE
TO THE PROTHONOTARY:
Please withdraw the appearance of P. Richard Wagner, Esquire on behalf of the Plaintiffs
in the above matter.
Date:
agner, Esquire
Attorney ID#23103
Wagner& Spreha
2233 North Front Street
Harrisburg, PA 17110
(717)234-7051