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HomeMy WebLinkAbout07-0221Johnson, Duffle, Stewart & Weidner By: David W. DeLuce I. D. No. 41687 301 Market Street P. O. Box 109 Lemoyne, Pennsylvania 17043-0109 (717) 761-4540 HOLY SPIRIT CORPORATION, V. Plaintiff NICHOLAS E. DUNPHY, JR., Defendant Attorneys for Plaintiff IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. Q'`L d-21 CIVIL ACTION - LAW CONFESSION OF JUDGMENT FOR MONEY DAMAGES Pursuant to the authority contained in the warrant of attorney contained in paragraph 4 of the written personal guaranty agreement, a true and correct copy of which is attached as Exhibit "C" to the Complaint filed in this action, I appear for the Defendant, Nicholas E. Dunphy, Jr., and confess judgment in favor of the Plaintiff and against the Defendant as follows: Maximum amount of liability pursuant to Personal Guaranty on unpaid Rent Balance of $12,729.25 plus interest and charges: $ 10,000.00 Attorneys Fees pursuant to Personal Guaranty at 10% of unpaid balance: $ 1,000.00 TOTAL: $11,000.00 ART WEIDNER J7David , 4DeL0'6e BAttorne y I.D. #41687 301 Market Street, P.O. Box 109 Lemoyne, PA 17043-0109 (717) 761-4540 Attorneys for Plaintiff Judgment entered as above, 200 . Prothonotary OLY SPIRIT CORPORATION, Plaintiff V. HOLAS E. DUNPHY, JR., Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. s?7 QLA I 01 V t,C,c--?4'L CIVIL ACTION - LAW To: NICHOLAS E. DUNPHY, JR., You are hereby notified that on J'Q? l , 2007, judgment by confession was entered against you in the amount o $11,00 .00, in the above-captio case. Date:_LA11D T Prothonotary YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONC 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: Nicholas E. Dunphy, Jr. 517 Re treet New Cum a , PA 170 Atto ey for iriti HOLY SPIRIT CORPORATION, IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff NO. &7 6,' L V. CIVIL ACTION - LAW ?FJL,? NICHOLAS E. DUNPHY, JR., Defendant NOTICE UNDER RULE 2958.1 OF JUDGMENT AND EXECUTION THEREON TO: NICHOLAS E. DUNPHY, JR. A judgment in the amount of $ 11,000.00 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 personal guaranty agreement at paragraph 4 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 JOH , DUFFIE, T RT & IDNER 'a yvig avid W. DeLu Attorney I.D. #41687 301 Market Street Lemoyne, PA 17043-0109 Attorneys for Plaintiff Johnson, Duffle, Stewart & Weidner By: David W. DeLuce I. D. No. 41687 301 Market Street P. O. Box 109 Lemoyne, Pennsylvania 17043-0109 (717) 761-4540 HOLY SPIRIT CORPORATION, Plaintiff V. Attorneys for Plaintiff IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 61 _Q.? CIVIL ACTION - LAW NICHOLAS E. DUNPHY, JR., Defendant COMPLAINT PURSUANT TO Pa R C P 2951(b) FOR CONFESSION OF JUDGMENT FOR MONEY DAMAGES CnT:Ivt > 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, Nicholas E. Dunphy, Jr., for money damages, on the basis of a Lease and personal guaranty executed between the parties 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. Nicholas E. Dunphy, Jr., Inc., is an adult individual with a residence at 517 Reno Street, New Cumberland, Cumberland County, Pennsylvania 17070. A certification of residence is attached hereto as Exhibit "A." 3. On May 11, 2005, 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. f 4. Along with the Lease, Defendant, Nicholas E. Dunphy, Jr., executed a Personal Guaranty a true and correct copy of which is attached hereto as Exhibit "C". 5. Due to the continued default in rental payments by Joey V's, Inc and Nicholas E. Dunphy, Jr. as guaranty, on May 19, 2006 Plaintiff executed a Termination of Lease Agreement with the President of Joey V.'s, Inc., Joseph V. Sullenberger, wherein Mr. Sullenberger agreed that Joey V's, Inc. would 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. were in default and owed Plaintiff as rent payments . A true and correct copy of the Termination of Lease Agreement is attached as Exhibit "D". 6. The Termination of Lease Agreement required the Joey V's, Inc. to make payment within thirty (30) days. 7. Said thirty (30) day period has long elapsed and no payment on this obligation has been received by Joey V's, Inc. or the Defendant as guarantor. 8. Joey V's, Inc. 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 4 of the Personal Guaranty Agreement signed by the Defendant, the maximum amount of confessed judgment that can be made against the Defendant, Nicholas E. Dunphy, is Ten Thousand Dollars ($10,000.00) plus a ten percent (10%) attorney's fee based on the unpaid balance. 10. 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. l 11. There is justly due and owning to the Plaintiff from the Defendant, Nicholas E. Dunphy, on account of the aforesaid default on rental payments the sum of $11,000.00, calculated as follows: Maximum amount of liability pursuant to Personal Guaranty on unpaid Rent Balance of $12,729.25 plus interest and charges: $ 10,000.00 Attorneys Fees pursuant to Personal Guaranty at 10% of unpaid balance: $ 1,000.00 TOTAL: $11,000.0 0 12. 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. 13. This judgment is not being entered by confession against a natural person in connection with a consumer credit transaction. 14. The Personal Guaranty signed by Nicholas E. Dunphy, Jr. has not been assigned by the Plaintiff. WHEREFORE, Plaintiff demands judgment against Defendant in the amount of $11,000.00. Respectfully submitted, DUFFIE, STEWART & WEIDNER :285462 David W. DeLuce(/ ' Attorney I.D. #41687 301 Market Street P.O. Box 109 Lemoyne, PA 17043-0109 (717) 761-4540 Attorneys for Plaintiff VERIFICATION 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. ::::LN 7?f , -1e v Randall Newhouse, President Dated: I I q ! c -7 HOLY SPIRIT CORPORATION, Plaintiff v. NICHOLAS E. DUNPHY, JR., Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CERTIFICATE OF RESIDENCE I hereby certify that the following is the address of the Defendant: Nicholas E. Dunphy, Jr. 517 Reno Street New Cumberland, X17070 NO. CIVIL ACTION - LAW W. Deduce, Souire ev for Plaintiff ?ti;e,+ ? COMMERCIAL LEASE THIS COMMERCIAL LEASE ("Lease"), made this 11 -day of 1 r 2005, by and between HOLY SPIRIT CORPORATION, a Pennsylvania non-pr it corporation, with its principal place of business located at 503 North 215t 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 21s' Street, Camp Hill, Cumberland County, Pennsylvania, hereinafter called "Tenant." BACKGROUND: 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 21St Street through the existing parking area. 2. Term. A. Five Year Lease. This Lease shall commence on May 1, 2005 and continue through ApFil 30, 2010 (five years), unless sooner terminated pursuant to the provisions hereof. B. Early Termination Option. 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. Occupancy. 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 Monthly 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 Charge. If Tenant shall fail to pay to Landlord any monthly installment of annual base rent, as provided above, by the tenth (100) 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 Obligation 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. Operating Expenses. 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 5.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. Parking Spaces. 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 Responsibilities. 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 Responsibilities. Tenant shall be responsible for all interior maintenance of the Leased Premises including, but not limited to, the repair and replacement 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. Payment 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 Riyht to Asshun 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 by 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 JudQment(Possession and Money. 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 Landlord. V'S, INC. Joey V. Sullenberger, President 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 Enjoyment 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 Damage 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 governmental 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. Indemni . 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 Right of Entry. 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 Merger. 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-to-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-to-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-to-month tenancy. Tenant shall be responsible during the month-to-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-to-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 21 st 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. Governing 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 Cumberland County, Pennsylvania. 33. Recording. Recording of this Lease is prohibited. 34. Authority 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 Agreement 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 Guaranty/ 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 Guaranty/Dunphy/Castner. Attached to this Lease as Exhibit "B" is the personal, absolute and unconditional Guaranty of Nicholas E. Dunphy, Jr. and Jan B. Castner, to the extent of Ten Thousand ($10,000.00) Dollars. Said Guaranty shall be executed by Nicholas E. Dunphy, Jr. and Jan B. 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.C. 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.C. Dunphy's Pub, Inc. is terminated in writing by the Tenant, J.C. Dunphy's Pub, Inc. Until such a writing is received by Landlord, this Lease shall not be effective. 39. Pre-Term Utility Charges. 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 Corporation, 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: Landlord: HOLY SPIRIT CORPORATION By: L) G. Randall Newhouse, President Tenant: JOEY V'S, INC. r By: EAL) V. Sullenberger, President :245922v2 EXHIBIT "A" 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 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 Commercial Lease by Tenant and guaranteeing the performance of Tenant with respect to the Commercial 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 IRREVOCABLY 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 kENT AND RENT PAYABLE DURING THE BALANCE OF THE TERM, TOGETHER WITH CHARGES, INCLUDING 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 FORCE OR TO BE PASSED. IN WITNESS WHEREOF, Joey V. Sullenber intending to be legally bound, has caused this P anal Guarantee to be executed this 7day of , 2005. i GLI 1:J NTO r (SEAL) j Joey V. Sullenberger EXHIBIT "B" 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 day of 2005, by NICHOLAS E. DUNPHY, JR., an adult individual residing at Pennsylvania and JAN B. CASTNER, an adult individual residing at Pennsylvania (hereinafter both are collectively called the "Guarantor"), in favor of HOLY SPIRIT CORPORATION (the "Landlord"). WI TNESSETH. 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. Guaran 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 governmental 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 Judgment IN THE CASE 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 COURT 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 CONFESS JUDGMENT AGAINST THEM NOT TO EXCEED $10,000.00 FOR THE THEN REMAINING RENTAL PAYMENTS AND ANY ADDITIONAL RENT DUE UNDER THE COMMERCIAL 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. Jan B. r 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. 21 st Street Camp Hill, PA 17011 To Guarantor: NiieMs E. Dur hy, Jr. Jan B. Castner J 11 ?lre•c, /o 46 P*W.10Ti A110MLt e N'*)lL- 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. SeveraIf 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. Governing 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 Cumberland County, Pennsylvania. IN WITNESS WHEREOF, and intending to be legally bound, Paul Curtin, has hereunto set his hand and seal WITNESS: and year first above written. GUA TOR: Nicholas E. DunDhv. Jr. B. Castner xk,6-? P - EXHIBIT "B" PERSONAL GUARANTY OF NICHOLAS E. DUNPHY, JR. AND JAN B. CASTNER r *? ? PERSONAL GUARANTY TO: Holy Spirit Corporation THIS PERSONAL GUARANTY, made and entered into this day of 2005, by NICHOLAS E. DUNPHY, JR., an adult individual residing at Pennsylvania and JAN B. CASTNER, an adult individual residing at r7n,-s?.'j / Pennsylvania (hereinafter both are collectively called the "Guarantor"), in favor of HOLY SPIRIT CORPORATION (the "Landlord"). WI TNESSETH. 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. Guaranty. 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 governmental 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 Jud imenf. IN THE CASE 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 COURT 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 CONFESS JUDGMENT AGAINST THEM NOT TO EXCEED $10,000.00 FOR THE THEN REMAINING RENTAL PAYMENTS AND ANY ADDITIONAL RENT DUE UNDER THE COMMERCIAL 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 r +` • 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. 21 s` Street Camp Hill, PA 17011 To Guarantor: Nicholas E. Dur hy, Jr. Jan B. Castner _ SS ", // le' /0 48 `'lost=???oaL? Ncr? 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. Severabiliiy. 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. Governing 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 Cumberland County, Pennsylvania. IN WITNESS WHEREOF, and intending to be legally bound, Paul Curtin, has hereunto set his hand and seal WITNESS: and year first above written. GUA TOR: Nicholas E. Dunr)hv. Jr. B. Castner 11 !. k) b " • 4, i COMMERCIAL LEASE TERMINATION AGREEMENT THIS COMMERCIAL LEASE TERMINATION AGREEMENT ("Agreement'), is mllde and entered into this I I day of _ M? , 2006, by and between HOLY SPIRIT CORPORATION, a Pennsylvania non-profit corporation, with its principal place of business located at 503 N. 21a Street, Camp Hill, Cumberland County, Pennsylvania, hereinaft/r called 'Landlord" 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 Coster. B. Said Lease was to be for a temp of five (5) years commencing May 1, 2005 and continuing through April 30, 2010. C. As a result of a default by Tenant, Landlord and Tenant now desire to t6rminate the Commercial Lease effective May 22, 2006. D Landlord and Tenant desire to confirm their agreement and all terons and conditions thereof in writing. NOW, THEREFORE, the parties hereto, each intending to be legally bound hereby, agree as follows: 1. Background. The background set forth above is incorporated herein. 2. Commercial Lease. The Commercial Lease, dated May 11, 2005, entered by and between Landlord and Tenant is incorporated herein by reference and hereinafter called "Commercial Lease." 3. Terminsdon 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 effective May 22, 2006 (the "Termination Date"), and Tenant acknowledges by its execution of this Agreement, 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, acknowledloes that Tenant's right of access to the leased premises is terminated as of the date of the Agreerlbnt. 4. Consideration. As consideration for Landlord terminating this Commercial Lease, the parties agree that Tenant's liability under the Commercial Lease shall be Twelve Thousand Seven Hundred Twenty-Nine Dollars and twenty-five cents ($12,729.25) provided said amount is paid within thirty (30) days of the parties' execution of this Agreement. In the event Tenaht timely pays Landlord Twelve Thousand Seven Hundred Twenty-Nine Dollars and twenty-fivie cents ($12,729.25), Landlord hereby releases and forever discharges Tenant from any and al claims, for rent arising out of the Commercial Lease, including but not limited to unpaid periodic dent, real estate tax obligations and delinquent 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) days of the date of this Agreement, Tenant shall be liable to Landlord for all damages resulting from Tenant's default of the terms of the aforesaid Commercial Lease. 6. NOUC@. For purposes of this Agreement and the Commercial Lease, all; notices required to be given hereunder shall be given in writing and shall be deemed to have been given three (3) days after being deposited in the United States Mail, certified or registered maii, bor upon receipt with any reputable overnight delivery company. Such notices shall be sent to the blowing address for the: Landlord: Holy Spirit Corporation 503 N. 21 at Street Camp Hill, PA 17011 With copy to: David W. DeLuce, Esquire Johnson, Duffle, Stewart & Weidner 301 Market Street P.O. Box 109 Lemoyne, PA 17043-0109 11 ! . to Tenant: Joey V's, Inc. 433 North 21* Street Camp Hill, PA 17011 7. Counterparts. This Agreement may be executed in several counterpartsp each of which shall constitute a complete original Agreement. 8. Bindno Effect. This Agreement shall be binding upon and shall inurb 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 governed by and construed in accordanoe with the laws of the Commonwealth of Pennsylvania. 10. ComoraHon Authorization. Tenant shall deliver to Landlord appropriate corporate authorization on behalf of Tenant authorizing the execution of this Agreement by Tenant's duly authorized officer or officers. IN WITNESS WHEREOF, Landlord, by its duly authorized officer, and Tenant, btp its duly authorized officer, each intending to be legally bound, have caused this Commercials Lease Termination Agreement to be signed and delivered in duplicate, as of the day and year firtt above written. Landlord: HOLY SPIRIT CORPORATION BY: G. Randall Newhouse, President Tenant: .rnpv vPc iur+ BY: NAI TITLE: (jrQ6--5 = j,"r- :275607 IV) o T C? ? ct?l ` EJ Y __ r iTl t '._. Cr.? ? W Johnson, Duffle, Stewart & Weidner By: David W. DeLuce I. D. No. 41687 301 Market Street P. O. Box 109 Lemoyne, Pennsylvania 17043-0109 (717) 761-4540 HOLY SPIRIT CORPORATION, Plaintiff V. NICHOLAS E. DUNPHY, JR., Defendant Attorneys for Plaintiff IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 07-221 CIVIL TERM CIVIL ACTION - LAW PRAECIPE TO SATISFY JUDGMENT TO THE PROTHONOTARY: Kindly mark the judgment entered by Plaintiff and against the Defendant in the above captioned matter as satisfied and discontinue this action. JOaNN, DUFF E, YART WEIDNER By David . DeL ce CERTIFICATE OF SERVICE AND NOW, this --,L-?? day of March, 2009, the undersigned does hereby certify that she did this date serve a copy of the foregoing Praecipe to Satisfy Judgment upon the other parties of record by causing same to be deposited in the United States Mail, first class postage prepaid, at Lemoyne, Pennsylvania, addressed as follows: Nicholas E. Dunphy, Jr. 517 Reno Street New Cumberland, PA 17070 B David. De uce 360394 C. `e "? . ra r- t"fl