HomeMy WebLinkAbout07-0215
Johnson, Duffie, Stewart & Weidner
By: David W. Deluce
I.D. No. 41687
301 Market Street
P. O. Box 109
lemoyne, Pennsylvania 17043-0109
(717) 761-4540
Attorneys for Plaintiff
Plaintiff
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY. PENNSYLVANIA,
NO. O!L- oVS ~~L
CIVIL ACTION - LAW
HOLY SPIRIT CORPORATION,
v.
JOSEPH V. SULLENBERGER,
Defendant
CONFESSION OF JUDGMENT FOR MONEY DAMAGES
Pursuant to the authority contained in the warrant of attorney contained in paragraph (16) of the
written lease agreement, a true and correct copy of which is attached as Exhibit "B" "to the Complaint filed in
this action, I appear for the Defendant and confess judgment in favor of the Plaintiff and against the
Defendant as follows:
TOTAL:
$ 12,729.25
$ 1.900.89
$ 1.761.41
$ 4.455.23
$ 20.909.78
Unpaid Rent Balance
Attorneys Fees pursuant to Personal Guaranty
Interest
late Charges
David . Del e
Attorney 1.0. #41687
301 Market Street, P.O. Box 109
lemoyne, PA 17043-0109
(717) 761-4540
Attorneys for Plaintiff
Judgment entered as above,~ ~ /1
Plaintiff
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
NO. D"l -;llS' el~~L
CIVIL ACTION - LAW T €fl-"'Yl
HOLY SPIRIT CORPORATION,
v.
JOSEPH V. SULLENBERGER,
Defendant
NOTICE UNDER RULE 2958.1 OF
JUDGMENT AND EXECUTION THEREON
TO: Joseph V. Sullenberger
A judgment in the amount of $20,909.78 has been entered against you and in favor of the plaintiff
without any prior notice or hearing based on a confession of judgment contained in the written lease
agreement at paragraph 16 and the third paragraph of the personal guaranty agreement allegedly signed by
you. The sheriff may take your money or other property to pay the judgment at any time after thirty (30) days
after the date on which this notice is served on you.
You may have legal rights to defeat the judgment or to prevent your money or property from being
taken. YOU MUST FILE A PETITION SEEKING RELIEF FROM THE JUDGMENT AND PRESENT IT TO A
JUDGE WITHIN THIRTY (30) DAYS AFTER THE DATE ON WHICH THIS NOTICE IS SERVED ON YOU
OR YOU MAY LOSE YOUR RIGHTS.
YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE A
LAWYER OR CANNOT AFFORD ONE, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW TO
FIND OUT WHERE YOU CAN GET LEGAL HELP.
Cumberland County Bar Association
2 Liberty Avenue
Carlisle, PA 17013
(717) 249-3166
OL Y SPIRIT CORPORATION,
Plaintiff
v.
OSEPH V. SULLENBERGER,
Defendant
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
NO. o'1-~~ (21'(,)~Ll~
CIVIL ACTION - LAW
To: JOSEPH V. SULLENBERGER,
You are hereby notified that on ~ ~ u t..l ' 2007, judgment by confession was entered
against you in the amount of $20,909.78, in the above-captioned case.
Date:--'/nj 07
Prothonotary
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
32 S. Bedford Street
Carlisle, PA 17013
(717) 249-3166
I hereby certify that the following is the address of the Defendant stated in the certificate of residence:
Joey V. Sullenberger
481 Sample Bridge Road
En , A 1702
...
Johnson, Duffie, Stewart & Weidner
By: David W. Deluce
1.0. No. 41687
301 Market Street
P. O. Box 109
lemoyne, Pennsylvania 17043-0109
(717) 761-4540
Attorneys for Plaintiff
HOLY SPIRIT CORPORATION,
Plaintiff
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
NO. O"1-dlIS e/~i,L
I~
CIVIL ACTION - LAW
v.
JOSEPH V. SULLENBERGER,
Defendant
COMPLAINT PURSUANT TO Pa.R.C.P. 2951 (b) FOR
CONFESSION OF JUDGMENT FOR MONEY DAMAGES
The present action is brought pursuant to Rule 2950 et. seq., of the Pennsylvania Rules of Civil
Procedure, whereby the Plaintiff, Holy Spirit Corporation, confesses judgment against Defendant, Joey V.
Sullenberger, for money damages, on the basis of a Lease and personal guaranty executed on May 11,
2005 for the property located at 433 North 21st Street, a portion of the Plaza 21 Shopping Center, Camp
Hill, Cumberland County, Pennsylvania, 17011, whereof the following is a statement:
1. The Plaintiff is Holy Spirit Corporation, a Pennsylvania non-profit corporation with a place of
business at 503 N. 21st Street, Camp Hill, Cumberland County, Pennsylvania 17011.
2. Joey V. Sullenberger, Inc., is an adult individual with a residence at 481 Sample Bridge Road,
Enola, Cumberland County, Pennsylvania 17025. A certification of residence is attached hereto as Exhibit
"A."
~
3. On May 11, 2005, Defendant as President of Joey V's, Inc. executed a written Lease
Agreement with Plaintiff, a true and correct copy of which is attached hereto as Exhibit "B" and made a part
hereof by reference.
4. Along with the Lease, Defendant executed a Personal Guaranty of all lease obligations which
is attached hereto as Exhibit "C".
5. Due to the continued default in rental payments by Joey V's, Inc and Joseph V. Sullenberger
as guarantor, on May 19, 2006 Plaintiff executed a Termination of Lease Agreement with Joey V.'s, Inc.
wherein the corporation agreed to pay the sum of Twelve Thousand Seven Hundred Twenty-Nine Dollars
and twenty-five cents ($12,729.25) representing the amount that Joey V'S' Inc. was in default at the time and
owed Plaintiff as rent payments. A true and correct copy of the Termination of Lease Agreement is attached
as Exhibit "0".
6.
(30) days.
The Termination of Lease Agreement required the Defendant to make payment within thirty
7. Said thirty (30) day period has long elapsed and no payment on this obligation has been
received by Defendant. , .
8. Defendant is in default on the aforesaid Commercial Lease and Termination of Lease
Agreement because he has failed to make the required payment of Twelve Thousand Seven Hundred
Twenty-Nine Dollars and twenty-five cents ($12,729.25) by June 19, 2006.
9. Pursuant to paragraph 5 of the Termination of Lease Agreement, paragraph 4C of the Leas
Agreement, and the Personal Guaranty Agreement, the Defendant has incurred late charges for each month
of five (5%) percent for the amount outstanding from calculated each month beginning July 2006 through
January 2007 totaling Four Thousand Four Hundred Fifty-Five Dollars and twenty-three cents ($4,455.23).
10. Pursuant to paragraph 5 of the Termination of Lease Agreement, paragraph 4C of the Lease
Agreement, and the Personal Guaranty Agreement, the Defendant has also incurred interest of one and one-
half percent (1.5%) per month beginning June 19, 2006 through January 9, 2006 and totaling Seventeen
Hundred Sixty-One Dollars and forty-one cents ($1,761.41).
11. Pursuant to the Personal Guaranty Agreement, the Plaintiff is also entitled to recover
reasonable attorney's fees equal to ten percent (10%) of the amount outstanding and unpaid.
12. Considering late charges, there is justly due and owning to the Plaintiff from the Defendant on
account of the aforesaid default on rental payments the sum of $20,909.78, calculated as follows:
Unpaid Rent Balance
Attorneys Fees pursuant to Personal Guaranty
Interest
Late Charges
$ 12,792.25
$ 1.900.89
$ 1,761.41
$ 4.455.23
TOTAL:
$ 20,909.78
13. Plaintiff has demanded the total amount due, but Defendant has refused and neglected and
continues to refuse and neglect to pay the full amount owing to Plaintiffs under the terms of the Commercial
Lease, Termination of Commercial Lease Agreement and the Personal Guaranty.
14. This judgment is not being entered by confession against a natural person in connection with
a consumer credit transaction.
15. Neither the Lease Agreement nor the Personal Guaranty signed by Joseph V. Sullenberger
have been assigned by the Plaintiff.
16. Judgment on the Lease Agreement has not been entered in any jurisdiction.
~
:262379
WHEREFORE, Plaintiff demands judgment against Defendant in the amount of $20,909.78.
Respectfully submitted,
David W. DeLu
Attorney I.D. #41687
301 Market Street
P.O. Box 109
Lemoyne, PA 17043-0109
(717) 761-4540
Attorneys for Plaintiff
l,
VERIFICA liON
I, Randall Newhouse, President of Holy Spirit Corporation, verify that I am authorized to make the
statements herein and that the statements made in the foregoing Complaint are true and correct to the best
of my knowledge, information and belief. I understand that false statements made herein are subject to the
penalties of 18 Pa.C.S.A. ~4904 relating to unsworn falsification to authorities.
_/' ~~~l~~
Randall Newhouse, President
Dated:
I '=tlo 7
...
HOLY SPIRIT CORPORATION,
Plaintiff
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
v.
NO.
JOSEPH V. SULLENBERGER,
CIVIL ACTION - LAW
Defendant
CERTIFICATE OF RESIDENCE
I hereby certify that the following is the address of the Defendant:
Joey V. Sullenberger
481 Sample Bridge Road
Enola, P A 17025
txh1b',i" B
...
COMMERCIAL LEASE
THIS COMMERCIAL LEASE ("Lease"), made this il!:day of fi1 " tJ-..- I
2005, by and between HOLY SPIRIT CORPORATION, a Pennsylvania non-pr~t corporation,
with its principal place of business located at 503 North 21 st Street, Camp Hill (East Pennsboro
Township), Cumberland County, Pennsylvania, hereinafter called "Landlord," and JOEY V'S,
INC., a Pennsylvania corporation, with its principal place of business located at 433 North 21 sl
Street, Camp Hill, Cumberland County, Pennsylvania, hereinafter called "Tenant."
B A C K G R 0 U N D:
1. Landlord is the owner of Plaza 21 Shopping Center, situate in East Pennsboro
Township, Cumberland County, Pennsylvania; and
2. Landlord desires to lease to Tenant and Tenant desires to lease from Landlord a
portion of the existing Plaza 21 Shopping Center containing approximately 4,430 square feet to be
used by Tenant, under and subject to the terms and conditions hereinafter provided, as a
restaurant; and
3. Landlord and Tenant desire to confirm their understanding in writing.
NOW, THEREFORE, the parties hereto, intending to be legally bound, agree as follows:
1 . Leased Premises. The premises hereby demised (hereinafter called "Leased
Premises") shall be approximately four thousand four hundred thirty (4,430) square feet located
on the eastern portion of the existing Plaza 21 Shopping Center, together with the right in
common with Landlord, its other tenants, guests and invitees to use the adjacent parking area and
to have the uninterrupted right of access to North 21s1 Street through the existing parking area.
2. Term.
A. Five Year Lease. This Lease shall commence on May 1, 2005 and
continue through April 30, 2010 (five years), unless sooner terminated pursuant to
the provisions hereof.
.. '
B. Early Termination Ootion. Both Tenant and Landlord shall each
have a right of early termination. Either party may, at any time on or after the end
of the second year of the term (April 30, 2007), provide the other party with at least
six (6) months prior written notice of early termination. If early termination is
sought by Tenant, at the time of the notice, Tenant cannot be in default for said
notice to be effective. During the notice period (6 months), Tenant shall pay all
monthly rent in accordance with the terms of the Lease as well as comply with all
other terms and conditions of this Lease. In addition, for the early termination to be
effective, if notice is given by Tenant, Tenant must pay Landlord the sum of six (6)
months rent prior to the effective date of the termination.
3. OccuDancv. Tenant shall take possession of the Leased Premises on or after
May 1, 2005. Prior to taking possession, Tenant shall pay rent, in full, for the month of May 2005
and for the additional utility charges as set forth in Paragraph 39 hereof. Tenant may only open
for business provided all insurances required in. this Lease are in place and copies are provided to
Landlord verifying the same.
4. Rent and Effective Date.
A. Effective Date. Rent shall commence for the Leased Premises
beginning on May 1, 2005.
B. Rent. The annual base rent for the first two (2) years of the Lease
(May 1,2005 to April 30, 2007) shall be Forty-Two Thousand ($42,000.00) Dollars,
payable in equal consecutive monthly installments of Three Thousand Five
Hundred ($3,500.00). The annual base rent commencing May 1, 2007 through
April 30, 2010, shall be Forty-Five Thousand Six Hundred ($45,600.00) Dollars,
payable in equal consecutive monthly installments of Three Thousand Eight
Hundred ($3,800.00) Dollars. The annual base rent shall be paid in equal monthly
installments, in advance, on or before the first day of each month during the term
to Landlord or Landlord's duly authorized agent or representative and said rent
shall be paid without notice or demand, without abatement, deduction or setoff.
The rent schedule during the term shall be as follows:
Lease Year Annual Base Rent Monthlv Installment
1 $42,000.00 $3,500.00
2 $42,000.00 $3,500.00
3 $45,600.00 $3,800.00
4 $45,600.00 $3,800.00
5 $45,600.00 $3,800.00
C. Late Charae. If Tenant shall fail to pay to Landlord any monthly
installment of annual base rent, as provided above, by the tenth (10th) calendar day
of said month, then Tenant shall pay to Landlord a late charge in the amount of
five (5%) percent of the monthly installment of annual base rent then outstanding.
In the event that said monthly installment of annual base rent is not paid prior to
the first (1 st) business day of the following month then, in that event, an additional
charge in the amount of one and one-half (1 1/2%) percent shall be imposed on
the monthly installment not so paid and said late charge shall be imposed as of the
first business day of each additional month that the monthly installment is not paid.
D. Survival of Tenant's Obliaation to Pay Rent. Tenant's obligation to
pay annual base rent, to include Additional Rent due and payable under the terms
of this Lease, shall survive the expiration or sooner termination of this Lease.
5. ODeratina ExDenses. All utilities for the Leased Premises, including, but not
limited to, electric, gas and water, together with any other metered utility, shall be separately
metered. Tenant shall be responsible for the following operating expenses:
A. Metered Utilities. Tenant shall be responsible to place all
separately metered utility accounts in Tenant's name and Tenant shall be solely
and exclusively responsible to pay all such utility charges, including, but not limited
to, electric, gas, water, telephone and the like.
B. Refuse. Tenant shall be required to pay refuse removal charges,
whether municipally or commercially provided.
C. Sewer Rentals. Tenant shall be responsible to pay all sewer rental
charges imposed by the municipality for public sanitary sewer service for the
Leased Premises.
D. Real Estate Taxes. Tenant shall pay a prorata share of that portion
of the county, township and school district real estate taxes assessed against the
land and improvements upon which the Plaza 21 Shopping Center is constructed.
Tenant's prorata share for the portion of the said taxes allocated to the land and
improvements shall be determined by taking the gross area of the leased premises
and dividing the gross area of the shopping center (including Wendy's Restaurant,
Weis Market, Eckerd Drug, and the Leased Premises). With respect to the
allocated portion of the county, township and school district real estate taxes based
on the land (not improvements) Tenant's obligation with respect to said taxes from
April 1, 2005 through the end of the calendar or fiscal year, as applicable, shall be
prorated.
County, township and school district taxes with respect to the final Lease
Year of the term shall be prorated based on the expiration date and the calendar or
fiscal year of the taxing authority.
Landlord shall, in accordance with this Subparagraph S.D., calculate the
amount payable by Tenant for county and township real estate taxes and calculate
the amount payable by Tenant with respect to school district real estate taxes and
shall submit a bill to Tenant for Tenant's share of said taxes by not later than the
expiration of the "face" period. Tenant shall pay Tenant's share of said taxes as
additional rent within thirty (30) calendar days after receipt of said bill.
6. Janitorial Services. Tenant shall provide, at Tenant's sole cost and expense,
janitorial services for the interior of the Leased Premises.
7. Snow Removal. Landlord shall, at Landlord's expense, remove or caused to be
removed, ice or snow from the parking area. Tenant shall be responsible for timely removing the
snow and ice from the sidewalk area in front of the Leased Premises.
8. Parkina SlJaces. Landlord shall provide paved and striped parking spaces for the
shopping center in an area to be used by Tenant's employees and guests in common with others
entitled thereto. Landlord reserves the right to restrict parking in an area from time to time for
Tenant's employee parking. No portion of the parking area, to include the access drive, shall be
used for the sale, display or storage of merchandise or any other property of Tenant. Tenant's
business shall be conducted within the Leased Premises.
9. Subordination. This Lease is expressly subject to all present and future
mortgages or other security instruments encumbering the shopping center and the land upon
which the shopping center is erected. Tenant covenants to execute such documents as
requested by Landlord to confirm and substantiate such subordination, and upon failure to do so,
Tenant hereby irrevocably appoints Landlord his agent and attomey-in-fact to execute the same
on its behalf.
10. Landlord's ResDonsibilities. Subject to any contractor's warranty, Landlord shall
be responsible for the structural components of the Leased Premises (perimeter walls and the
roof) .
11. Tenant's ResDonsibi/ities. Tenant shall be responsible for all interior
maintenance of the Leased Premises including, but not limited to, the repair and repl~cement of
floor coverings, painting, wall papering and the like. In addition, Tenant shall be responsible to
maintain all mechanical systems, including, but not limited to, electrical, plumbing and heating,
ventilating and air conditioning, which said responsibilities shall include routine and periodic
maintenance as well as replacement of the total system or any component of the system in the
event of a malfunction of any such system. Any damage to the Leased Premises, together with
the adjoining walks and parking area caused by negligence of Tenant, Tenant's agent,
contractors, guests, or invitees shall be repaired by Tenant. In the event that Tenant shall fail to
repair any such damage then Landlord shall repair such damage and Tenant shall be responsible
to pay the cost of the same as additional rent within thirty (30) days after Landlord shall submit to
Tenant a bill for said costs. Landlord shall be responsible for the negligence of Landlord's agents,
employees and contractors.
12. Alterations.
A. Definition. "Alterations" shall mean alterations, additions,
substitutions, installation, changes and improvements made to or within the
Leased Premises subsequent to the commencement of the term of this Lease.
B. Alterations. Tenant shall not make Alterations to the Leased
Premises without Landlord's prior written consent, which said consent shall not be
unreasonably withheld or delayed for nonstructural interior alterations to the
Leased Premises that do not adversely affect the Building's appearance or
structural strength. If Tenant shall desire to make Alterations to the Leased
Premises, Tenant shall provide Landlord reasonably detailed plans and
specifications for said alterations. Landlord shall have the right to obtain
assurances from Tenant that said Alterations shall be performed in a workmanlike
manner, not disturbing the quiet possession of the other tenants or occupants of
the adjoining Building and that no mechanics lien or other lien shall be entered
against the Building or the Property.
C. Pavment and Ownership of the Alterations. Alterations made
pursuant to this Paragraph 12 shall be at Tenant's sole cost and expense. The
Alterations shall belong to Landlord upon the expiration or termination of this Lease
except that Landlord shall have the right, at its option, to require Tenant to remove
any such Alteration at Tenant's expense and Tenant shall be required to repair any
damage to the Leased Premises caused by the removal of said Alterations.
13. Tenant's Riaht to Assian and Sublet. Tenant shall not assign or sublet or permit
the Leased Premises, or any part thereof, to be used by others without the prior written consent of
Landlord in each instance. If this Lease is assigned, or the Leased Premises or any part thereof
is occupied by anyone other than Tenant, Landlord may, after default by Tenant, collect rent from
the assignee, subtenant or occupant and apply the net amount collected to the rent herein
reserved. No assignment, subletting, occupancy or collection of rent by Landlord from any
assignee, subtenant or occupant shall be deemed a waiver of this covenant or the .acceptance of
the assignee, subtenant or occupant as tenant or a release of Tenant from further performance by
Tenant of the covenants of this Lease. The consent by Landlord to an assignment or subletting
shall not be construed to relieve Tenant from obtaining a consent in writing of Landlord to any
further assignment or subletting.
14. Use of Leased Premises. Tenant shall use the Leased Premises for the purpose
of a restaurant serving alcoholic beverages and for no other use without Landlord's prior written
consent. Tenant may not use the Leased Premises for any of the following: (1) operation of a
drug store or a drug department, in which a registered pharmacist is in attendance or required by
law to be in attendance for any period of time; (2) the operation of any store primarily engaged in
the sale of health or beauty aids, or both, including durable medical equipment; (3) for the purpose
of sale of food or food products for off-premises consumption or the operation of a supermarket, a
prinCipal business of which is the sale of foodstuffs at retail; or (4) for the purpose of redeeming,
offering for redemption or trafficking in "trade stamps." Further, Landlord shall have the right to
approve any and all entertainment and activities which Tenant may provide within the Leased
Premises, which said approval shall not be unreasonably withheld or delayed, provided, however,
that Landlord shall have the right to disapprove any lewd entertainment such as, but not limited to,
"strippers" (male or female) and ''wet t-shirt contests."
15. Default bv Tenant. If Tenant (regardless of the pendency of any bankruptcy,
reorganization, receivership, insolvency or other legal or administrative proceedings which may
prevent Tenant from complying with the terms of this Lease) shall allow the rent.to be in arrears
for more than ten (10) days after written notice of such delinquency, or shall remain in default of
any other covenant, agreement, or obligation for a period of thirty (30) days after written notice
from Landlord, or should any person other than Tenant secure possession of the Leased
Premises, or any part thereof, except in accordance with the terms and provisions of this Lease,
Landlord may, at its option, without notice to Tenant, terminate this Lease, or in the alternative,
Landlord may reenter and take possession of the Leased Premises and remove all persons and
property therefrom, without being deemed guilty of any manner of trespass, and relet the Leased
Premises or any part thereof, for all or any part of the remainder of said term to a party
satisfactory to Landlord, and at such monthly rental as Landlord may, with reasonable diligence,
be able to secure. ' Should Landlord be unable to relet after reasonable efforts to do so, or should
such monthly rental be less than the rent Tenant is obligated to pay under this Lease, plus the
expenses of reletting, then Tenant shall pay the amount of such deficiency to Landlord.
It is expressly agreed that in the event of default by Tenant hereunder, Landlord shall have
a lien on all goods, chattel or personal property of any description belonging to Tenant which are
placed in, or become part of, the Leased Premises, as security for the rent due and to become
due for the remainder of the term, which lien shall not be in lieu of or in any way affect the
statutory Landlord's lien given by law, but shall be cumulative thereto; and Tenant hereby grants
to Landlord a security interest in all such personal property located in said Leased Premises for
such purposes. In the event Landlord exercises the option to terminate the leasehold, reenter and
relet the Leased Premises as herein provided, then Landlord may take possession of all of
Tenant's property on the Leased Premises and sell the same at public or private sale after giving
Tenant reasonable notice of the time and place of any public sale or of the time after which any
private sale is to be made, for cash or on credit, or for such price and terms as Landlord deems
best, with or without having the property present at such sale. The proceeds of such sale shall be
applied first to the necessary and proper expenses of removing, restoring and selling such
property, and then to the payment of any rent and Additional Rent due or to become due under
this Lease, with the balance, if any, paid to Tenant.
All rights and remedies of Landlord under this Lease shall be cumulative, and none shall
exclude any other right or remedy at law. Such rights and remedies may be exercised and
enforced concurrently and whenever and as often as occasion therefor arises.
16. Confession of JUdamenVPossession and Monev.
A. POSSESSION. WHEN THIS LEASE AND ITS TERM SHALL
HAVE BEEN TERMINATED ON ACCOUNT OF ANY DEFAULT HEREUNDER
AND AFTER WRITTEN NOTICE WITH THIRTY (30) DAYS RIGHT TO CURE,
AND ALSO WHEN THE TERM HEREBY CREATED SHALL HAVE EXPIRED
AND AFTER WRITTEN NOTICE WITH THIRTY (30) DAYS RIGHT TO CURE,
IT SHALL BE LAWFUL FOR ANY ATTORNEY OF ANY COURT OF RECORD
TO APPEAR AS ATTORNEY FOR TENANT AS WELL AS FOR ALL PERSONS
CLAIMING BY, THROUGH OR UNDER TENANT AND TO CONFESS
JUDGMENT FOR THE POSSESSION AND RECOVERY BY LANDLORD OF
POSSESSION OF THE DEMISED PREMISES TOGETHER WITH COSTS OF
SUIT AND REASONABLE ATTORNEYS' FEES OF NOT LESS THAN THREE
THOUSAND DOLLARS, FOR WHICH THIS LEASE SHALL BE SUFFICIENT
WARRANT. THEREUPON, IF LANDLORD SO DESIRES, AN APPROPRIATE
WRIT OF POSSESSION MAY ISSUE FORTHWITH, WITHOUT ANY PRIOR
WRIT OR PROCEEDING WHATSOEVER PROVIDED THAT IF FOR ANY
REASON AFTER SUCH ACTION SHALL HAVE BEEN COMMENCED IT SHALL
BE DETERMINED THAT POSSESSION OF THE DEMISED PREMISES
SHOULD REMAIN IN OR BE RESTORED TO TENANT, LANDLORD SHALL
HAVE THE RIGHT FOR THE SAME DEFAULT AND UPON ANY
SUBSEQUENT DEFAULT OR DEFAULTS, OR UPON THE TERMINATION OF
THIS LEASE OR OF TENANT'S RIGHT OF POSSESSION AS
HEREINBEFORE SET FORTH, TO BRING ONE OR MORE FURTHER ACTION
OR ACTIONS AS HEREINBEFORE SET FORTH TO RECOVER POSSESSION
OF THE DEMISED PREMISES AND TO CONFESS JUDGMENT FOR THE
RECOVERY OF POSSESSION OF THE DEMISED PREMISES AS
HEREINBEFORE PROVIDED. NOTWITHSTANDING ANYTHING CONTAINED
IN THIS LEASE TO THE CONTRARY, THE RIGHT OF LANDLORD TO
CONFESS JUDGMENT FOR EJECTMENT AS SPECIFIED ABOVE SHALL
NOT PRECLUDE OR LIMIT LANDLORD'S RIGHT TO INITIATE ANY OTHER
ACTION.
B. MONEY. IN THE EVENT OF DEFAULT HEREUNDER AND
AFTER WRITTEN NOTICE WITH THIRTY (30) DAYS RIGHT TO CURE, AND
ALSO WHEN THE TERM HEREBY CREATED SHALL HAVE EXPIRED AND
AFTER WRITTEN NOTICE WITH THIRTY (30) DAYS RIGHT TO CURE, IT
SHALL BE LAWFUL FOR ANY ATTORNEY OF ANY COURT OF RECORD TO
APPEAR AS ATTORNEY FOR TENANT AS WELL AS FOR ALL PERSONS
CLAIMING BY, THROUGH OR UNDER TENANT AND TO THEREIN CONFESS
JUDGMENT FOR DAMAGES FOR AMOUNTS DUE HEREUNDER TOGETHER
WITH COSTS OF SUIT AND ATTORNEYS' FEES OF TEN PERCENT OF THE
AMOUNT CLAIMED, FOR WHICH THIS LEASE SHALL BE SUFFICIENT
WARRANT. THEREUPON, IF LANDLORD SO DESIRES, AN APPROPRIATE
WRIT OF EXECUTION MAY ISSUE FORTHWITH, WITHOUT ANY PRIOR
WRIT OR PROCEEDING WHATSOEVER, PROVIDED THAT IF FOR ANY
REAsON AFTER SUCH ACTION SHALL HAVE BEEN COMMENCED
LANDLORD SHALL HAVE THE RIGHT FOR THE SAME DEFAULT AND UPON
ANY SUBSEQUENT DEFAULT OR DEFAULTS, OR UPON THE
TERMINATION OF THIS LEASE OR OF TENANT'S RIGHTS AS
HEREINBEFORE SET FORTH, TO BRING ONE OR MORE FURTHER ACTION
OR ACTIONS AS HEREINBEFORE SET FORTH, AND TO CONFESS
JUDGMENT AGAIN AS HEREINBEFORE PROVIDED. NOTWITHSTANDING
ANYTHING CONTAINED IN THIS LEASE TO THE CONTRARY, THE RIGHT
OF LANDLORD TO CONFESS JUDGMENT AS SPECIFIED ABOVE SHALL
NOT PRECLUDE OR LIMIT LANDLORD'S RIGHT TO INITIATE ANY OTHER
ACTION.
(1) Tenant expressly waives:
The right to delay execution on any real estate that may be levied
upon to collect any amount which may become due under the terms and
conditions of this Lease and any right to have the same appraised.
Tenant authorizes the Prothonotary or Clerk to enter a writ of execution
or other process upon Tenant's voluntary waiver and further agrees that
said real estate may be sold on a writ of execution or other process.
The right to all notices including, but not limited to ten (10), fifteen
(15) or thirty (30) days' notice, required under certain circumstances by
the Pennsylvania Landlord and Tenant Act of 1951, if applicable, and
Tenant hereby agreeing that the respective notice periods, if any,
provided for in this Lease shall be sufficient in either or any such case.
(2) Tenant shall, and hereby does, waive trial by jury in any
action, proceeding, or counterclaim brought by Landlord against Tenant
on any matters whatsoever arising out of or in any way connected with,
this Lease, the relationship of Landlord and Tenant, Tenant's use or
occupancy of the Demised Premises, and/or any claim of injury or
damage arising out of the Demised Premises.
(3) All rights and remedies provided herein or' otherwise
existing at law or in equity are cumulative, and the exercise of one or
more rights or remedies by Landlord shall not preclude or waive
Landlord's right to the exercise of any or all of the others.
(4) Nothing set forth in this Article 16 shall be construed as an
election of a specific remedy or remedies by Landlo d.
l
Joey V. Sullenberger, President -
t~
17. Certificates. Tenant shall, without charge, at the request of Landlord, from time to
time, execute certificates to the ground lessor, any mortgagee, assignee or purchaser of Landlord:
A. 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 modification or modifications;
B. The dates, if any, to which rent or other charges, if any, hereunder
have been paid in advance;
C. Whether Landlord is or is not, as the case may be, in default of the
performance of any of the covenants or conditions on Landlord's part to be
performed;
D. Such other pertinent information with respect to this Lease as
Landlord may reasonably request.
18. Quiet Eniovment. Landlord covenants to allow Tenant quietly and peacefully
enjoy the possession of the Leased Premises free from interference or interruption of Landlord or
any person claiming through or under Landlord.
19. Insurance. Landlord covenants to maintain adequate insurance against damage
to or destruction of the Building and the Leased Premises by or on account of the elements, fire,
wind and other perils ("all risk") commonly insured against under coverage known as "extended
coverage," but all personal property of any kind or description whatsoever in the Leased Premises
shall be at Tenant's sole risk and Landlord shall not be liable for any damage done to or loss of
such personal property or damage or loss suffered by the business or occupation of Tenant
arising from the acts or negligence of co-tenants or other occupants of the Building, or of
employees of Tenant or of other persons or from bursting, overflowing or leaking of water, sewer
or steam pipes or from the heating or plumbing fixtures or from electric wires, or from gas or
odors, or caused in any manner whatsoever except in the case of neglect on the part of Landlord.
Tenant shall, at Tenant's sole cost and expense, provide public liability insurance in such
amounts as shall be mutually agreed by and between Landlord and Tenant for loss from accident
resulting in bodily injury or death of persons and for loss from an accident resulting in damage to
or destruction of property. Said insurance shall be in effect prior to the Occupancy Date and shall
remain in effect during the entire term of this Lease without interruption. Tenant shall provide
evidence to Landlord that said insurance coverage is in effect prior to the Occupancy Date and
Tenant shall provide evidence to Landlord on or before the anniversary date of the Occupancy
Date at the beginning of each subsequent Lease Year that said coverage is in effect or at any
other time determined by Landlord.
Tenant shall, at Tenant's sole cost and expense, provide "Dram Shop" insurance coverage
in such amounts as shall be acceptable to Landlord. Further, with respect to "Dram Shop"
coverage Landlord shall have the right to approve the insurer. With respect to the "Dram Shop"
coverage Landlord shall be designated as a certificate holder and additional insured. Tenant shall
maintain "Dram Shop" coverage throughout the term of this Lease and failure to provide said
coverage shall be deemed a default hereunder. Evidence of said insurance coverage shall be
provided by Tenant to Landlord prior to the Occupancy Date and on or before the anniversary
date of the Occupancy Date at the beginning of each subsequent Lease Year or at any other time
determined by Landlord.
20. Destruction of Leased Premises - Partial. If the Leased Premises shall be
partially damaged by fire or other cause and Tenant can reasonably carry on its business in
substantially the same manner in which it had theretofore been ordinarily conducted, the damage
thereto shall be repaired or restored promptly by Landlord, at no expense to Tenant and without
reduction in rent. In the event the Leased Premises shall be partially damaged by fire or other
cause so that Tenant cannot carry on its business in substantially the same manner in which it
had theretofore been ordinarily conducted, but the damage is not sufficient so as to cause Tenant
to cease operation, the damage thereto shall be repaired or restored by Landlord within ninety
(90) days at no expense to Tenant. Until the Leased Premises are satisfactorily repaired or
restored, and Tenant has been restored the full possession thereof, Tenant's obligation to pay
rent for such period of non-use shall be abated pro tanto to the same extent to the extent of
Tenant's deprivation of its full use of the Leased Premises.
21. Destruction of Leased Premises - Total. In the event of the total destruction of
the Leased Premises, Landlord shall have the option to rebuild and rent shall abate until such time
as the Leased Premises are available to Tenant in substantially the same condition before
destruction as evidenced by notice thereof from Landlord to Tenant, at which time rent shall again
commence and the term of this Lease shall be deemed tolled for such rebuilding. In the event
Landlord does not within sixty (60) days after the destruction commence to rebuild or repair, or
does not within one hundred twenty (120) days make available to Tenant the Leased Premises,
this Lease shall, at the option of Landlord, terminate and Tenant shall be released from any
further obligations under this Lease. Notwithstanding the foregoing, upon the total destruction of
the Leased Premises, Landlord shall not be required to rebuild or repair the Leased Premises,
unless Landlord shall, in its sole and exclusive option, elect to do so. If Landlord shall elect not to
rebuild or repair the Leased Premises, Landlord shall notify Tenant within thirty (30) days after the
date of destruction, and Tenant's obligation to pay rent shall be abated pro tanto to the same
extent of Tenant's deprivation of its full use of the Leased Premises.
22. Notice of Damaae to Leased Premises. If the Leased Premises shall be
damaged or destroyed by fire, flood or other casualty, Tenant shall give immediate written notice
thereof to Landlord.
23. Condemnation. If, during the term of the Lease, or any extension thereof, all of
the Leased Premises shall be taken for any public or quasi-public use under any govemmental
law, ordinance or regulation, or by right of eminent domain, or should be sold to the condemning
authority under threat of condemnation, this Lease shall terminate and the rent shall be abated
during the unexpired portion of this Lease, effective as of the date of the actual taking of
possession of said premises by the condemning authority, and Tenant shall be released from any
further obligations under this Lease, provided, however, that Tenant reserves all rights which it
may have with respect to relocation or other damages against the condemning authority. If less
than all of the Leased Premises shall be taken for any public or quasi-public use under any
governmental law, ordinance or regulation, or by right of eminent domain, or should be sold to the
condemning authority under threat or condemnation, this Lease shall not terminate but Landlord
shall, at its sole expense, within ninety (90) days from the date of the actual taking of possession
by the condemning authority, restore and reconstruct the Building or other improvements,
provided that such restoration and reconstruction shall make the same reasonably tenable and
suitable for the uses for which the Leased Premises are leased. Rent payable hereunder during
the unexpired portion of this Lease shall be adjusted equitably. Landlord and Tenant shall each
be entitled to receive and retain such separate awards and portions of lump sum awards as may
be allocated to the respective interest in any condemnation proceeding. The termination of this
Lease shall not affect the rights of the respective parties to such awards.
.24. Indemnitv. Tenant shall indemnify and hold Landlord harmless against any and
all claims, demands, costs and expenses, including reasonable attorney's fees for the defense
thereof, arising from the conduct or management of Tenant's business in the Leased Premises or
from any breach on the part of Tenant or any of the conditions of this Lease, or from any or
negligence of Tenant, its agents, contractors or employees in or about the Leased Premises. In
case of any action or proceedings brought against Landlord by reason of any such claim, Tenant,
on notice from Landlord, covenants to defend such action or proceedings by counsel acceptable
to Landlord. The foregoing indemnification provision shall not apply to negligence by Landlord, its
agents, employees, contractor, other tenants or invitees.
25. Landlord's Riaht of Entrv. Tenant shall permit Landlord and its agents to enter
into and upon the Leased Premises at all reasonable times for the purpose of inspecting the
same, maintaining the Building, making repairs to any other portion of said Building, including the
erection of scaffolding, props or other mechanical devices, or for the purpose of posting notice of
non-liability for repairs, without any rebate of rent to Tenant or damages for any loss of occupation
of quiet enjoyment of the Leased Premises thereby occasioned; and shall permit Landlord, at any
time within ninety (90) calendar days prior to the expiration of the term, if applicable, to put upon
the windows and doors of the Leased Premises any usual or ordinary "to let" or "to lease" signs.
Landlord and its agents may, during said last mentioned period, at reasonable hours, enter upon
the Leased Premises and exhibit the same to prospective tenants. Landlord shall employ
reasonable care and shall not disturb Tenant's business.
26. No Mer.aer. The voluntary or other surrender of this Lease by Tenant, or a mutual
cancellation thereof, shall not work a merger and shall operate as an assignment to Landlord of
any or all such permitted subleased or subtenancies.
27. No Waiver. The waiver by Landlord of any breach of any term, covenant or
condition herein contained shall not be deemed to be a waiver of such term, covenant or condition
or any subsequent breach of the same or any other term, covenant or condition herein contained.
The subsequent acceptance of rents hereunder by Landlord shall not be deemed to be a waiver
by Landlord of any preceding breach of any term, covenant or condition of this Lease. other than
the failure of Tenant to pay the particular rental so accepted, regardless of Landlord's knowledge
of such preceding breach at the time of acceptance of such rent.
28. Hold Over. If Tenant holds possession of the Leased Premises after the term of
this Lease Tenant shall become a Tenant from month-te-month upon the terms herein specified,
at a monthly rent equal to one hundred twenty (120%) percent of the monthly rent payable for the
month next preceding the month of expiration, which said sum shall be payable monthly in
advance in lawful money of the United States as aforesaid, on the first day of each month. Said
month-te-month tenancy shall continue until such time as either Landlord or Tenant shall give the
other at least thirty (30) days' prior written notice of intention to terminate the month-te-month
tenancy. Tenant shall be responsible during the month-te-month tenancy to continue to pay all
real estate taxes, utilities, municipal sewer charges, refuse removal and all other charges payable
by Tenant pursuant to this Lease.
29. Surrender of Leased Premises. Tenant shall, upon the expiration or sooner
termination of the term or any month-te-month tenancy promptly surrender and deliver the Leased
Premises to Landlord without demand therefor in good condition, ordinary wear and tear
excepted.
30. Notices. All notices provided to be given under this Lease shall be in writing and
shall be deemed given when delivered personally or deposited in the United States mail, postage
prepaid, return receipt requested, addressed to the party at the address set forth below and shall
be deemed received two (2) calendar days after the date of postmark:
To Landlord:
Holy Spirit Corporation
Suite 505
890 Poplar Church Road
Camp Hill, PA 17011
To Tenant:
Joey V's, Inc.
433 North 21st Street
Camp Hill, PA 17011
31. Parties Bound. This Lease shall be binding upon and shall inure to the benefit of
the parties hereto, their respective heirs, successors and assigns permitted by this Lease.
32. Governina Law. This Lease shall be construed under and in accordance with the
laws of the Commonwealth of Pennsylvania and all obligations of the parties created hereunder
are performable in Cumber/and County, Pennsylvania.
33. Recordina. Recording of this Lease is prohibited.
34. Authoritv of the Parties. Each party warrants to the other that it is authorized to
enter into this Lease, that the person signing on its behalf is duly authorized to execute this Lease
and that no other signatures are necessary.
35. Entire Aareement. This Lease contains the entire agreement between Landlord
and Tenant and this Lease shall not be modified, altered or amended except in writing signed by
Landlord and Tenant.
36. Personal Guarantv / Tenant's Member. Attached to this Lease as Exhibit "A" is
the personal, absolute and unconditional Guaranty of Joey V. Sullenberger. Said Guaranty shall
be executed by Joey V. Sullenberger, at the time of the execution of this Lease, and shall be
attached to and remain a part of this Lease. Notwithstanding the foregoing, any Guaranty may be
executed in multiple copies if requested by Landlord.
37. Personal Guarantv/DunDhv/Castner. Attached to this Lease as Exhibit "8" is the
personal, absolute and unconditional Guaranty of Nicholas E. Dunphy, Jr. and Jan 8. Castner, to
the extent of Ten Thousand ($10,000.00) Dollars. Said Guaranty shall be executed by Nicholas
E. Dunphy, Jr. and Jan 8. Castner at the time of the execution of this Lease, and shall be
attached to and remain a part of this Lease. Notwithstanding the foregoing, any Guaranty may be
executed in multiple copies if requested by Landlord.
38. Termination of Prior Commercial Lease. There presently exists a Commercial
Lease to J.e. Dunphy's Pub, Inc. for the Leased Premises which term has not expired. This
Lease is specifically conditioned and will not be effective until the Commercial Lease dated August
17, 1994 by and between Prosperity Development Company (former Landlord) and J.e. Dunphy's
Pub, Inc. is terminated in writing by the Tenant, J.e. Dunphy's Pub, Inc. Until such a writing is
received by Landlord, this Lease shall not be effective.
39. Pre-Term Utility Charaes. Tenant has had access to the Leased Premises since
on or about February 18, 2005 in order to make improvements, facilitate inspections and obtain
licensure approval. Tenant agrees to pay for the increased utility charges for water (Pennsylvania
American), and utility charges for electric (PP&L) and natural gas (UGI) from February 18, 2005 to
April 30, 2005, and thereafter the entire utility charges as set forth in Paragraph 5 of this
Agreement.
IN WITNESS WHEREOF, Holy Spirit eorporation, by its duly authorized officer, and Joey
V's, Inc., by its President, have caused this Commercial Lease to be executed the day and year
first above written.
ATTEST:
/}
(;, I~/Z., 1'1--''---..
Landlord:
HOLY SPIRIT CORPORAT,)
BYP?l1J l \. ~l)
G. Randall Newhouse, President
Tenant:
JOEY V'S, INC.
UEAll
8y:
:245922v2
EXHIBIT IIAII
PERSONAL GUARANTY OF JOEY V. SULLENBERGER
PERSONAL GUARANTY
The undersigned, JOEY V. SULLENBERGER (hereinafter called "Guarantor"), does, as
an inducement to Holy Spirit Corporation ("Landlord"), pursuant to a Commercial Lease dated
March _, 2005, hereby absolutely and unconditionally guarantee the performance of Joey
V's, Inc. ("Tenant") pursuant to the foregoing Lease with respect to the payment of rent and
further personally guarantees performance of Tenant with respect to all other terms and
conditions of said eommercial Lease. Guarantor's guarantee is without condition and is absolute.
Further, Guarantor's guarantee of payment and performance, as herein provided, shall be and
remain in effect regardless of whether Guarantor has received notice of Tenant's default and this
guarantee shall not be considered waived by any delay that Landlord has permitted Tenant in
satisfying Tenant's obligations. This Personal Guarantee shall inure to the benefit of Landlord, its
successors and assigns. Landlord shall have the right, at Landlord's option, to modify the
Commercial Lease, without Guarantor's consent, provided, however, that Guarantor's obligations
are not increased beyond the financial conditions originally contained in the Commercial Lease
and neither Landlord nor Tenant shall be obligated to seek the consent of Guarantor with respect
to any such modification.
As set forth above, Landlord is entering into the Commercial Lease in part in reliance on
Guarantor's absolute and unconditional guarantee of payment of any rent or any other sum due
and payable pursuant to the eommercial Lease by Tenant and guaranteeing the performance of
Tenant with respect to the eommercial Lease. Guarantor, in consideration of Landlord entering
into said Commercial Lease, hereby agrees, absolutely and unconditionally, to guarantee the
payment of any rent or any other sum due and payable by Tenant to Landlord pursuant to the
Commercial Lease and further guarantees, to Landlord, full and complete performance by Tenant
with respect to all of the terms and conditions of the Commercial Lease. Further, Guarantor
agrees not to assert any defense, claim, demand, action or cause of action against Landlord in
connection with Guarantor's obligations with respect to this Personal Guarantee.
TO SECURE THIS PERSONAL GUARANTEE, GUARANTOR HEREBY IRREVOeABL Y
AUTHORIZES THE PROTHONOTARY, CLERK OF COURT OR ANY ATTORNEY OF ANY
COURT OF RECORD TO APPEAR FOR GUARANTOR IN SUCH COURT AT ANY TIME
AFTER AN UNCURED DEFAULT BY TENANT AND TO CONFESS JUDGMENT AGAINST
GUARANTOR IN FAVOR OF LANDLORD WITH RELEASE OF ERRORS, WITHOUT STAY OR
SETTING ASIDE OF EXECUTION, FOR ANY AMOUNT OF UNPAID RENT AND RENT
PAYABLE DURING THE BALANCE OF THE TERM, TOGETHER WITH CHARGES,
INeLUDING REASONABLE ATTORNEYS' FEES TEN (10%) PERCENT AND COSTS.
GUARANTOR WAIVES AND RELEASES ALL BENEFITS AND RELEASE FROM ANY AND ALL
APPRAISEMENT, STAY OR EXEMPTION LAWS OF ANY STATE, NOW IN FOReE OR TO BE
PASSED.
has
(SEAL)
EXHIBIT IIBII
PERSONAL GUARANTY OF NICHOLAS E. DUNPHY, JR. AND JAN B. CASTNER
PERSONAL GUARANTY
TO: Holy Spirit Corporation
THIS PERSONAL GUARANTY, made and entered into this -1L- day of
~ , 2005, by NICHOLAS E. DUNPHY, JR., an adult individual residing at
,
d/.,..-.C~-~__I_~'" ,Pennsylvania and JAN B. CASTNER, an adult individual
.
residing at 1/ ..._......;....... 'I &- , Pennsylvania (hereinafter both are collectively called the
.J'
"Guarantor"), in favor of HOLY SPIRIT CORPORATION (the "Landlord").
WIT N E SSE T H:
WHEREAS, Joey V's, Inc., a Pennsylvania corporation (the "Tenant") and Holy Spirit
Corporation, a Pennsylvania non-profit corporation (the "Landlord") have entered into a
Commercial Lease on an even date herewith (the "Commercial Lease"); and
WHEREAS, it is a condition precedent to the entering of the Commercial Lease by
Landlord that the Guarantor shall have executed and delivered this Personal Guaranty.
NOW THEREFORE, in consideration of the promises and in order to induce the Landlord
to enter the Commercial Lease, the Guarantors hereby agree as follows:
1 . Recitals. The above stated recitals are incorporated herein by reference and
made a part hereof.
2. Guarantv. The Guarantor, as an inducement to Landlord to enter the Commercial
Lease on an even date herewith, does hereby unconditionally guarantee the performance by
Tenant pursuant to the foregoing Commercial Lease with the punctual payment when due of the
rent and any such other sums as shall be due from Tenant to Landlord under the terms of said
Commercial Lease and further personally guarantee the performance by Tenant with respect to all
other terms and conditions of said Commercial Lease to the extent of and no more than Ten
Thousand ($10,000.00) Dollars. Guarantor's personal guarantee is limited to no more than Ten
Thousand ($10,000.00) Dollars and shall terminate on September 30, 2007 provided Tenant's
obligations under the Commercial Lease to Landlord are current at the time. Further, Guarantor's
guarantee of payment and performance, as herein provided and as set forth in the Commercial
Lease, shall be and remain in effect regardless of whether Guarantor has received notice of
Tenant's default and this Guaranty shall not be considered waived by any delay that Landlord has
permitted Tenant in satisfying Tenant's obligations.
3. Waiver. The Guarantor hereby waives any requirement that Landlord exhaust any
right or take any action against Tenant before exercising any legal remedies against the
Guarantor. No notice to or filing with any court or govemmental authority is required for the due
execution, delivery and performance by the Guarantor of this Personal Guaranty. This Personal
Guaranty is a legal, valid and binding obligation of the Guarantor enforceable ,against such
Guarantor.
4. Confession of Judament. IN THE eASE OF ANY UNCURED DEFAULT BY
TENANT UNDER THE TERMS AND CONDITIONS OF THE COMMERCIAL LEASE BETWEEN
LANDLORD AND TENANT ENTERED ON AN EVEN DATE HEREWITH, THE GUARANTOR
HEREBY AUTHORIZES AND EMPOWERS ANY ATTORNEY OF ANY eOURT OF RECORD
TO APPEAR FOR HIM IN AN AMICABLE ACTION, TO BE ENTERED BY THE
PROTHONOTARY AND WHICH LANDLORD SHALL BE THE PLAINTIFF AND THE
GUARANTOR EACH NAMED AS THE DEFENDANTS JOINTLY AND SEVERALLY AND TO
eONFESS JUDGMENT AGAINST THEM NOT TO EXeEED $10,000.00 FOR THE THEN
REMAINING RENTAL PAYMENTS AND ANY ADDITIONAL RENT DUE UNDER THE
eOMMERCIAL LEASE TOGETHER WITH ANY INTEREST THEREON, TOGETHER WITH TEN
(10%) PERCENT ATTORNEY'S COMMISSION BASED ON THE UNPAID BALANCE, HEREBY
WAIVING THE RIGHT OF EXEMPTION AND INQUISITION. WE EACH HEREBY
ACKNOWLEDGE AND VERIFY THAT MY ANNUAL INCOME EXCEEDS TEN THOUSAND
($10,000 0) DOL RS.
Nicholas E. Dunphy, Jr.
5. Addresses for Notices. All notices and other communications provided for herein
shall be in writing and shall be deemed given when delivered personally or deposited in the United
. "
States Mail, postage prepaid, return receipt requested, addressed to the party or persons at the
addresses set forth below.
To Landlord:
Holy Spirit Corporation
503 N. 21st Street
Camp Hill, PA 17011
To Guarantor:
N~~s ~U~y, Jr.
~()o..' t~ (p.- mo
Jan B. Castner .
10 cfB \>") (\ \! ;tJ-rtu,;1 OD l, t:r ~ (L.
M ~-L~" J L LEI t:'b. \ 10 S' >
6. No Waiver/Remedies. No failure on the part of Landlord or its agents to exercise,
and no delay in exercising, any right hereunder shall operate as a waiver thereof; nor shall any
single or partial exercise of any right hereunder or as permitted by law preclude any other right or
further exercise thereof or the exercise of any other right permitted by law. The remedies herein
provided are cumulative and are not exclusive of any remedies provided by law.
7. Severabilitv. If for any reason any provision or provisions hereof are determined
to be invalid and contrary to any existing or future law, such invalidity shall not impair the operation
or effect of those portions of this Personal Guaranty which are valid.
8. Governina Law. This Personal Guaranty shall be construed under and in
accordance with the laws of the Commonwealth of Pennsylvania and all obligations of the parties
created hereunder are performable in Cumber/and County, Pennsylvania.
IN WITNESS WHEREOF, and intending to be legally bound, Paul Curtin, has hereunto set
his hand and seal t ay and year first above written.
J1iR/
NichOlas E. Dun h , Jr.
WITNESS:
.. . ~ '"
EXHIBIT IIA"
PERSONAL GUARANTY OF JOEY V. SULLENBERGER
. '-,.
PERSONAL GUARANTY
The undersigned, JOEY V. SULLENBERGER (hereinafter called "Guarantor"), does, as
an inducement to Holy Spirit Corporation ("Landlord"), pursuant to a Commercial Lease dated
March , 2005, hereby absolutely and unconditionally guarantee the performance of Joey
V's, Inc. ("Tenant") pursuant to the foregoing Lease with respect to the payment of rent and
further personally guarantees performance of Tenant with respect to all other terms and
conditions of said Commercial Lease. Guarantor's guarantee is without condition and is absolute.
Further, Guarantor's guarantee of payment and performance, as herein provided, shall be and
remain in effect regardless of whether Guarantor has received notice of Tenant's default and this
guarantee shall not be considered waived by any delay that Landlord has permitted Tenant in
satisfying Tenant's obligations. This Personal Guarantee shall inure to the benefit of Landlord, its
successors and assigns. Landlord shall have the right, at Landlord's option, to modify the
eommercial Lease, without Guarantor's consent, provided, however, that Guarantor's obligations
are not increased beyond the financial conditions originally contained in the Commercial Lease
and neither Landlord nor Tenant shall be obligated to seek the consent of Guarantor with respect
to any such modification.
As set forth above, Landlord is entering into the Commercial Lease in part in reliance on
Guarantor's absolute and unconditional guarantee of payment of any rent or any other sum due
and payable pursuant to the Commercial Lease by Tenant and guaranteeing the performance of
Tenant with respect to the Commercial Lease. Guarantor, in consideration of Landlord entering
into said eommercial Lease, hereby agrees, absolutely and unconditionally, to guarantee the
payment of any rent or any other sum due and payable by Tenant to Landlord pursuant to the
Commercial Lease and further guarantees, to Landlord, full and complete performance by Tenant
with respect to all of the terms and conditions of the Commercial Lease. Further, Guarantor
agrees not to assert any defense, claim, demand, action or cause of action against Landlord in
connection with Guarantor's obligations with respect to this Personal Guarantee.
TO SEeURE THIS PERSONAL GUARANTEE, GUARANTOR HEREBY IRREVOCABLY
AUTHORIZES THE PROTHONOTARY, CLERK OF eOURT OR ANY ATTORNEY OF ANY
COURT OF REeORD TO APPEAR FOR GUARANTOR IN SUCH COURT AT ANY TIME
AFTER AN UNeURED DEFAULT BY TENANT AND TO CONFESS JUDGMENT AGAINST
GUARANTOR IN FAVOR OF LANDLORD WITH RELEASE OF ERRORS, WITHOUT STAY OR
SETTING ASIDE OF EXECUTION, FOR ANY AMOUNT OF UNPAID RENT AND RENT
PAYABLE DURING THE BALANCE OF THE TERM, TOGETHER WITH CHARGES,
INeLUDING REASONABLE ATTORNEYS' FEES TEN (10%) PEReENT AND COSTS.
GUARANTOR WAIVES AND RELEASES ALL BENEFITS AND RELEASE FROM ANY AND ALL
APPRAISEMENT, STAY OR EXEMPTION LAWS OF ANY STATE, NOW IN FORCE OR TO BE
PASSED.
(SEAL)
I
!
. , ...
COMMERCIAL LEASE TeRMINATION AGREEf,fENT
THIS COMMERCIAL LEASE TERMINA TlON AGREEMENT ("Agreement'~, is ntlde and
entered into this I ') day of ~ 1 ' 2006, by and between HOl Y!l SPIRIT
CORPORATION, a Pennsylvania non-profit corporation, with its principal place of Ibusiness
located at 503 N~ 21- Street, Camp Hill, Cumberland County, Pennsylvania. hereinaft'r called
BLandlord. and JOEY V'S, INC., a Pennsylvania corporation, located at 433 North 21~ Street,
Camp Hill, Cumberland County, Pennsylvania, hereinafter called "Tenant."
BACKGROUND
A. Landlord and Tenant entered into a Commercial Lease dated May 11, 2005 for
leased premises of approximately 4,430 square feet located at the Plaza 21 Shopping Ce'"ter.
B. Said Lease was to be for a term of five (5) years commencing May 1. 21)05 and
continuing through April 30.2010.
C. As a result of a default by Tenant, Landlord and Tenant now desire to t'rminate
the Commercial Lease effective May 22, 2006.
o landlord and Tenant desire to confirm their agreement and all te","s and
conditions thereof in writing.
NOW, THEREFORE, the parties hereto, each intending to be legally bound here~, agree
as follows:
1. Backaround. The background set forth above is incorporated herein.
2. CommercIal Lease. The Commercial Lease, dated May 11, 2005, entere41 by and
between Landlord and Tenant is incorporated herein by reference and hereinaftEl' called
"Commercial Lease..
3. Termination of Commercial Lease. It is hereby agreed by and between !landlord
and Tenant that the Commercial Lease shall be and the same is hereby terminated effeclve May
.
'- "
22,2006 (the uTermination Date.), and Tenant acknowledges by its execution of this Ag~ent,
that all of Tenant's right, title and interest with respect to the leased premises are terminated as of
the Termination Date. Further, Tenant, by the execution of this Agreement, acknowte~es that
Tenanfs right of access to the leased premises is terminated as of the date of the Agreent!nt.
4. Consideration. As consideration for landlord terminating this Commerci. Lease,
the parties agree that Tenanfs liability under the Commercial lease shall be Twelve TIllousand
Seven Hundred Twenty-Nine Dollars and twenty-fIVe cents ($12,729.25) provided said atlount is
paid within thirty (30) days of the parties' execution of this Agreement. In the event Tenatlt timely
pays Landlord Twelve Thousand Seven Hundred Twenty-Nine Dollars and twenty-We cents
($12,729.25), landlord hereby releases and forever discharges Tenant from any and a' claims,
for rent arising out of the Commercial lease, including but not nmited to unpaid periodic *'nt, real
estate tax obligations and definquent sanitary sewer charges. Tenant hereby releases, quit
claims, and forever discharges landlord from any and all claims, actions or causes df action
arising out of or relating to the Commercial Lease and relinquishes all rights of possession.<
5. Default. In the event Tenant fails to pay landlord Twelve Thousand Seven
Hundred Twenty.;Nine Dollars and twenty-five cents ($12,729.25) within thirty (30) daWl of the
date ofthis Agreement. Tenant shall be liable to Landlord for all damages resulting from tenant's
default of the terms of the aforesaid Commercial Lease.
6. Notice. For purposes of this Agreement and the Commercial Lease, alt notices
required to be given hereunder shall be given in writing and shall be deemed to have bMn given
three (3) days after being deposited in the United states Mail, certified or registered mail,lJOr upon
receipt with any reputable ovemight delivery company. Such notices shaN be sent to the I>llowing
address far the:
Landlord:t
Holy Spirit Corporation
503 N. 21" Street
Camp Hill, PA 17011
With copy to:
David W. DeLuce, Esquire
Johnson, Duffie, Stewart & Weidner
301 Market Street
P.O. Box 109
lemoyne, PA 17043-0109
, I..
Tenant:
Joey Vs, Inc.
433 North 21st Street
Camp Hill, PA 17011
7. Count8l'Dllrts. This Agreement may be executed in several counterparts, each of
which shall constitute a complete original Agreement.
8. Blndina Effect. This Agreement shall be binding upon and shall inu~ to the
benefit of Landlord, its successors and assigns. This Agreement shall be binding upon SInd shall
inure to the benefit of Tenant, its successors and assigns.
9. Govemina Law. This Agreement shall be govemed by and con*ued in
accordance with the laws of the Commonwealth of Pemsylvania.
10. C.l'DOratIon Authorization. Tenant shall deliver to landlord ap"ropriate
corporate authorization on behalf of Tenant authorizing the execution of this Agreelnent by
Tenant's duly authorized officer or officers.
IN WITNESS WHEREOF, Landlord, by its duly authorized officer, and Tenant, b)ji its duly
authorized officer, each intending to be legally bound, have caused this Commercial Lease
Termination Agreement to be signed and delivered in duplicate, as of the day and year tiftt above
written.
landlord:
HOLY SPIRIT CORPORATION
BY:
,
G. Randall Newhouse, Presi~ent
BY:
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