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HomeMy WebLinkAbout08-2112 5844.10. complaint. wpd No V. Otto III, Esquire Attorney I.D. No. 27763 Seth T. Mosebey, Esquire Attorney I.D. No. 203046 MARTSON DEARDORFF WILLIAMS OTTO GILROY & FALLER MARTSON LAW OFFICES 10 East High Street Carlisle, PA 17013 (717) 243-3341 Attorneys for Plaintiff MUMMA REALTY ASSOCIATES, INC., Plaintiff IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA V. CLICK MESSENGER SERVICE, INC d/b/a CD&L, INC., Defendant NO. 08- --211a CIVIL TERM NOTICE OF ENTRY OF JUDGMENT PURSUANT TO PA. R.C.P. NO. 236 TO: Click Messenger Service, Inc. d/b/a CD&L, Inc. 80 Wesley Street South Hackensack, NJ 07600 You are hereby notified that on a. -EL, judgment by confession was entered against you in the above-captioned case in favor of Mumma Realty Associates, Inc. as follows: Unpaid Rent under the Lease $101,124.28 Late Fee $5,254.50 10% Attorney's Commission $10,637.88 Total amount due $117,016.66* *Along with interest accruing at 6% per annum from the date of judgment. Date: '1- 5844.10. complaint. wpd Prothono MUMMA REALTY ASSOCIATES, INC., IN THE COURT OF COMMON PLEAS OF Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA v : NO. 08- CIVIL TERM CLICK MESSENGER SERVICE, INC d/b/a CD&L, INC., Defendant CONFESSION OF JUDGMENT Pursuant to the authority contained in the Lease between Plaintiff and Defendant, a true and correct copy of which is attached to the Complaint filed in this action, I appear for the Defendant and confess judgment in favor of the Plaintiff and against Defendant as follows: Unpaid Rent under the Lease $101,124.28 Late Fee $5,254.50 10% Attorney's Commission $10,637.88 Total amount due $117,016.66* *Along with interest accruing at 6% per annum from the date of judgment. As Attorney for Defendant Judgment entered as above this C9 day of , 2008: Pr onotary It 5844. 10.complaint. wpd No V. Otto III, Esquire Attorney I.D. No. 27763 Seth T. Mosebey, Esquire Attorney I.D. No. 203046 MARTSON DEARDORFF WILLIAMS OTTO GILROY & FALLER MARTSON LAW OFFICES 10 East High Street Carlisle, PA 17013 (717) 243-3341 Attorneys for Plaintiff MUMMA REALTY ASSOCIATES, INC., Plaintiff V. CLICK MESSENGER SERVICE, INC d/b/a CD&L, INC., Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 08- CIVIL TERM COMPLAINT IN CONFESSION OF JUDGMENT Mumma Realty Associates, Inc., by and through its undersigned counsel, hereby files this Complaint in Confession of Judgment pursuant to Pa. R.C.P. No. 2951(b) and in support thereof, avers the following: 1. Plaintiff, Mumma Realty Associates, Inc., is a Pennsylvania business corporation with its principal offices at 1043 Mumma Road, Wormleysburg, Cumberland County, Pennsylvania. 2. Defendant, Click Messenger Service, Inc., d/b/a CD&L, Inc., is a New Jersey corporation with a principal place of business at 80 Wesley Street, South Hackensack, New Jersey. 3. On or about April 11, 2006, Plaintiff and Defendant entered into an agreement whereby Defendant leased premises located at 800A Paxton Street, Rear, Harrisburg, Dauphin County, Pennsylvania, from Plaintiff for a five-year period commencing June 1, 2006. 4. Attached as Exhibit "A" is a true and correct copy of the original instrument (herein, the "Lease") authorizing confession of judgment. 5. The Lease is duly executed by Dominick V. Simone, as Vice President and Region Manager for Defendant. 6. Attached as Exhibit "B" is an affidavit verifying that this is a true and correct copy of the Lease. 7. Pursuant to Article l(C)(1) of the Lease, Defendant was required to make monthly payments for rent to Plaintiff in Lemoyne, Cumberland County, Pennsylvania. 8. According to Article 14(A)(1)(a) of the attached Lease, it is an Event of Default for the Tenant to fail to pay "Rent or any other charges or sums due under the Lease within ten (10) days after written notification of such default either by mail or hand delivery." 9. Notice of Defendants' failure to pay rent was mailed to Defendant on January 22, 2007, February 15, 2007, and March 6, 2007. Copies of these notices are attached hereto as Exhibit "C." 10. Defendant has failed to pay rent since the date of the first notice. 11. No payment for rent has been received by Plaintiff for January 2007 to the present date. 12. Article 15(A)(4) of the attached Lease permits Plaintiff to confess judgment against Defendant for failure to pay rent. 13. Article 15(A)(4) permits Plaintiff to collect "all amounts due ... with interest, costs and attorney's commission of 10%." 14. Article l(C)(3) permits Plaintiff to recover a Late Charge in an amount equal to ten percent (10%) of the outstanding monthly balance. 15. Plaintiff obtained a replacement tenant who began renting the premises located at 800A Paxton Street, Rear, Harrisburg, Dauphin County, Pennsylvania in October 2007. 16. The amount due under the Lease from January 1, 2007, through May 1, 2011, is $263,374.28. 17. From January 1, 2007, through May 1, 2011, the new tenant will pay rent in the amount of $162,250.00. 18. The balance of the unpaid rent after subtracting the rent paid by the new tenant is $101,124.28. 19. The late charge from January 1, 2007, through April 1, 2008, is $5,254.50. 20. The attorney's commission on the amount due under the Lease is $10,637.88. 21. The total amount owed by Defendant for unpaid rent, the Late Charge and the Attorney's Commission is $117,016.66. 22. Judgment is not being entered by confession against a natural person in connection with a consumer credit transaction. 23. The Lease has not been assigned. 24. Judgment has not been entered in any jurisdiction on the attached instrument authorizing confession. WHEREFORE, Plaintiff demands judgment in the amount of $117,016.66, along with interest accruing at 6% per annum from the date of judgment. MARTSON LAW OFFICES By J No V. Otto III, Esquire Attorney I.D. No. 27763 Seth T. Mosebey, Esquire Attorney I.D. No. 203046 10 East High Street Carlisle, PA 17013 (717) 243-3341 Attorneys for Plaintiff EXHIBIT A a9m f jAJ44- AGREEMENT OF LEASE This Agreement of Lease ("Lease") dated the 11 day of April 2006, is by and between MUMMA REALTY ASSOCIATES, INC., a Pennsylvania business corporation with its principal offices at 1043 Mumma Road, Wormleysburg, Pennsylvania, 17043, hereinafter referred to as "Landlord", or by its "management and leasing agent", RSR REALTORS, LLCM, 3 Lemoyne Drive, Lemoy!g, Pennsylvania 17043, and Click Messenger Service, Inc., d/b/a CD&L Inc., SLRI 1 aL' hereinafter referred to as the "Tenant". Article I. Basic Lease Terms. A. Leased Premises. In consideration of the payment of rents and other charges provided for herein and the performance of all the covenants hereinafter set forth, Landlord hereby leases to Tenant and Tenant hereby rents from Landlord ± 12,000 square feet of building space, together with designated parking spaces for fifteen (15) motor vehicles, hereinafter referred to as "Leased Premises", which is located in the city of Harrisburg, Pennsylvania. Tenant acknowledges herein that prior to execution of this Lease, Tenant has determined and hereby represents that the Leased Premises is sufficient for and suits Tenant's purposes in all respects. The street or mailing address of the Leased Premises shall be 800A Paxton Street, Rear, Harrisburg, PA 17111. During the Lease Term, Landlord also grants to Tenant a nonexclusive use of all common areas, hereinafter referred to as "Common and Public Areas", around or adjoining the Leased Premises which serves the general use of Tenant's employees, customers clients and business invitees and which includes parking areas, traffic corridors, walkways, approaches, entrances and exits, and all other general common areas of the property, but is exclusive of space reserved for rental to other tenants. The language contained herein describing the Leased Premises, shall not impose upon Tenant any duty to maintain columns and structural members contained within its Leased Premises; together with the appurtenances specifically granted in this Lease, including the use in common with others of the Common and Public Areas as hereinafter more fully provided, but reserving 1 of 25 _? DRAFT and excepting to Landlord (i) the use of (a) the exterior faces of the exterior walls, (b) the roof and (c) the space between the lower surface of the floor slab of any higher floor and the Tenant's finished ceilings: (ii) the right to install, maintain, use, repair and replace pipes, ducts, conduits and wires leading through the Leased Premises in locations which will not interfere with Tenant's use thereof, and serving other parts of the subject property. B. Lease Term. 1. The term of this Lease shall be for five (5) years, hereinafter referred to as "Lease Term" and shall commence June 1, 2006, hereinafter referred to as the "Commencement Date", and expire May 31, 2010 unless earlier terminated as provided for herein. 2. Tenant shall have the option to renew the Lease for one five (5) year term by providing one hundred eighty (180) days written notice to Landlord prior to the end of the then- current term. Rental rate to be negotiated at time Tenant provides written notice of its intention to renew. 3. At the expiration or earlier termination of the Lease Term, Tenant shall peaceably surrender the Leased Premises in as good of a condition as the Leased Premises were in on the Commencement Date of this Lease, ordinary wear and tear and damage by condemnation, fire or other casualty excepted. Ordinary wear and tear shall be deemed not to include damage or injury caused by moving Tenant's property or equipment into or out of the Leased Premises. Tenant shall deliver all keys for the Leased Premises to Landlord at the place then fixed for the payment of Rent, and shall notify Landlord in writing of all combinations of locks, safes and vaults, if any, in the Leased Premises. 4. Should Tenant hold over in possession after the expiration of Lease Term or any renewal term of this Lease without the necessary notice referenced in Article I.B.2., such holding over shall not be deemed to extend the Lease Term or renewal term of this Lease or renew this Lease, but the tenancy thereafter shall continue from month to month upon the covenants and conditions herein set forth at a rental equivalent to double the rent in effect during the last month of the preceding term, until terminated by either parry by at least thirty (30) days' written notice. 2 of 25 C, ?. J' DRAFT 5. After twenty-four (24) months, Tenant shall be provided one option to terminate Lease after occupying and paying rent when due, by providing Landlord with six (6) months written notice to terminate, along with three (3) months rent to be paid at the time written notice is provided to Landlord. C. Rent. 1. Tenant covenants and agrees to pay Rent in equal monthly installments in advance on the first day of each month during the term of the Lease, and any renewal periods, forwarding to the following address: Payable to: Mumma Realty Associates, Inc. Attn: Kathy Pillion RSR REALTORS, LLC 3 Lemoyne Drive Lemoyne, PA 17043 IndvoiAj, ?' 2. Tenant agrees to pay the following rends-NNN charges: (a) Year 1 $57,000.00, $4,750.00 per month; (<?U (b) Year 2 $58,140.00, $4,845.00 per month; ?! I (c) Year 3 $59,302.80, $4,941.40 per month; (d) Year 4 $60,488.86, $5,040.74 per month; (??t) (e) Year 5 $61,698.63, $5,141.55 per month. 3. Tenant shall pay as additional rent, a late charge, hereinafter referred to as "Late Charge" for any monthly installment of Rent due which is received by Landlord more than five (5) days after such Rent is due. The Late Charge shall be equal to ten (10%) percent of the outstanding monthly balance. Late Charges will continue to accrue and be assessed on outstanding balances each month until paid in full. Late Charges will be assessed in this manner as a penalty and will cover the additional expense of handling delinquent accounts. D. Use of Common and Public Areas. Landlord may make available in the subject property the Common and Public Areas including but not limited to ramps, walkways, public and customer parking areas, and landscaped and planted areas. Landlord, solely, shall have the responsibility to operate, manage, equip, police, light, repair and maintain the Common and Public Areas for their intended purposes in such manner as Landlord in its sole 3 of 25 L l DRAFT E. Real Estate Taxes, Insurances, and Common Area Maintenance Tenant agrees to pay the prorated share of Landlords real estate taxes, insurance and common area maintenance of the property, The prorated share is 11% of the total cost. --- -Ts 1 Article 2. occupancy and Use of Leased Premises and Construction. Tenant covenants and agrees to use and occupy the Leased Premises solely for the following purposes: package delivery, package distribution, general office and warehouse use on a twenty-four hours per day, seven days per week basis, including the loading and unloading of freight onto motor vehicles inside the Leased Premises, hereinafter referred tows "Permitted Use". Notwithstanding anything to the contrary set forth in this Lease, in the event Tenant is unable to utilize the premises for the Permitted Use during the term of this Lease, either as a result of applicable zoning laws and regulations, complaints from other tenants of the Building, or complaints from other Tenants regarding objectionable odors, then in such event Tenant shall have the right to terminate this Lease upon ninety days written notice to the Landlord without further obligation beyond the termination date except to pay the Landlord any monies owed up to and including the termination date. Tenant shall at all times conduct its business in a reasonable manner and make reasonable efforts to limit excessive noise or odors in the operation of its business. Landlord shall also have the right to terminate this lease upon ninety(90) days written notice to Tenant in the event that other tenants in the building complain of noise or odor and Tenant is unable to remedy such complaints. In this event, tenant shall be responsible for any rent or other monies due up to and including the termination date, and Tenant shall have no other remedy at law. Article 3. Improvements. A. Alterations by Tenant. Tenant may at its own expense and with the prior written approval of Landlord which shall not be unreasonably withheld make any alterations, improvements, installation, substitutions, decorations and/or additions (collectively "Tenant's Changes"), excluding structural changes, to the Leased Premises or any part thereon as Tenant 5 of 25 DRAFT reasonably may consider necessary for the conduct of its business in the Leased Premises subject to the following conditions: (i) The outside appearance or structural integrity of the subject property shall not be affected. (ii) No part of the subject property not included within the Leased Premises shall be physically affected. (iii) The proper functioning of any of the mechanical, electrical, sanitary and other service systems shall not be adversely affected. (iv) In performing the work involved in making such changes, Tenant shall be bound by and observe all of the conditions and covenants contained in Article 3.8. (v) At the expiration or any earlier termination of this Lease, Tenant shall, upon Landlord's written request, restore the Leased Premises to their condition prior to the making of any change permitted by this Article 3, reasonable wear and tear excepted, unless waived by Landlord in writing. B. Construction and Approvals. Tenant agrees that all contractors and subcontractors performing work within the Leased Premises are subject to Landlord's prior written approval, which shall not be unreasonably withheld. Tenant, at its own expense, shall obtain all necessary governmental permits and certificates for the completion of Tenant's Changes and shall cause any such changes to be performed in compliance therewith and with all applicable laws and requirements of insurance bodies, and in good and workmanlike manner, using materials and equipment at least equal in quality and class to the original installations of the Leased Premises. Furthermore, only those contractors, subcontractors or Tenant's employees as have been duly licensed by the appropriate governmental body, agency or authority having jurisdiction over the appropriate professions and which have been approved by the Landlord in accordance with this Article 3 may perform any portion of Tenant's Changes in or upon the Leased Premises. Tenant's Changes shall be performed in such manner as to not unreasonably interfere with Landlord or any other occupant of the subject property, and so as not to impose any additional expense upon Landlord. If any of Tenant's Changes shall involve the removal of any fixtures, equipment or other property in the Leased Premises which are Landlord's property, such fixtures, equipment or other property shall be promptly replaced, at Tenant's expense, with fixtures, equipment or other property of like utility and at least equal 6 of 25 QV-4 tv--l a DRAFT value, and Tenant shall return any removed property to Landlord unless Landlord sham otherwise expressly consent in writing. C. Violations, Liens and Securities Interests. Tenant, at its expense, and with diligence and dispatch, shall procure the cancellation or discharge of all notices of violation arising from or otherwise connected with Tenant's Changes, which shall be issued by any public authority having or asserting jurisdiction. Tenant shall defend) indemnify and. save harmless Landlord against any and all mechanics' and other liens filed in connection with Tenant's Changes, including any liens or security interest in or upon any materials, fixtures or articles so installed in and constituting part of the Leased Premises and against all costs, expenses and liabilities incurred in connection with any such liens or security interests or any action or proceedings brought thereon. Tenant, at its expense, shall procure the satisfaction or discharge of all such liens within thirty (30) days after Landlord makes written demand therefore. Article 4. Tenant's Repairs. A. Tenant's Repairs. Tenant shall also, at its own expense, promptly make repairs, ordinary or extraordinary, interior or exterior, structural or otherwise, in and about the Leased Premises and upon the subject property as shall be required by reason of (i) the performance by Tenant of any work on the Leased Premises; (ii) the installation, use or operation of Tenant's property or Tenant's portion of the utility lines in the Leased Premises; (iii) the moving of Tenant's property in or out of the Leased Premises; or (iv) the misuse or neglect of the Leased Premises by Tenant or any of its employees, agents or contractors including the failure or neglect of Tenant to make repairs required by the succeeding subsection hereof: or (v) damages caused by the negligence or intentional acts of Tenant, its employees, agents or contractors. B. Rent Abatement for Landlord's Repairs. There shall be a reasonable abatement of rent allowed Tenant by reason of interference with Tenant's business arising from Landlord making any repairs, replacements, alterations, decorations, additions, improvements or providing services as defined in Article 1.D. hereof in or to any portion of the Leased Premises, any portion of the subject property or in or to fixtures, appurtenances or equipment thereof, provided such work (except in case of emergency and to the extent practical) reasonably interferes with Tenant's use of the Leased Premises., and provided such repairs, 0 7 of 25 ?? DRAFT alterations, replacements, additions, or improvements are not necessitated by a willful or negligent act of Tenant. C. Ownership Improvements. Upon the expiration or earlier termination of this Lease for any reason, all fixtures, equipment, improvements and appurtenances attached to or built into the Leased Premises in such a manner as to become part of the freehold, whether or not by or at the expense of Tenant, shall become and remain a part of and be surrendered with the Leased Premises, except that Landlord may elect to require Tenant, at Tenant's expense, to remove any or all of such fixtures, equipment, improvements and appurtenances, and Tenant shall restore the Leased Premises to as good a condition as existed at the Commencement Date, normal wear and tear excepted. Any furniture, furnishings and other articles of movable personal property owned by Tenant and located in the Leased Premises, shall be and shall remain the property of Tenant and may be removed by it any time during the term'of this Lease so long as Tenant is not in default of any of its obligations under this Lease, and the same have not become apart of the freehold, and so long as such removal shall not materially affect Tenant's ability to use said premises and conduct its business as provided herein; provided that if any of Tenant's Property is removed, Tenant shall repair or pay the cost of repairing any damage to the Leased Premises resulting from such removal. Article S. Utilities: Electricity; BV AC; Sprinkler and Others. A. Tenant shall pay all charges for heating and air-conditioning, electricity, sprinklers, water, gas, and sewerage service and all other utilities and I services used by Tenant and supplied by a public utility or public authority, or any other person, firm or corporation, and such charges shall be billed directly to Landlord. B. Landlord shall maintain and perform the sprinkler system serving the Leased Premises. C. Tenant shall not place any unacceptable load or burden on the capacity of the applicable building systems and utility lines of the subject property as determined by the public utility providing such service or by the Landlord in the exercise of reasonable judgment. 8of25 ? DRAFT D. Landlord reserves the right to interrupt, curtail or suspend the provision of any utility service to which Tenant may be entitled hereunder when necessary by reason of accident or emergency or for repairs, alterations, or improvements which in the judgment of Landlord are desirable or necessary to be made, or due to difficulty in obtaining supplies in labor or for another cause beyond the reasonable control of Landlord. The work of such repairs, alterations, or improvements shall be prosecuted with reasonable diligence. With the exception of Landlord's failure to pay necessary utility charges, Landlord shall in no respect be liable for any failure of the utility companies or governmental authorities to supply utility services to Tenant or for any limitation of supply resulting from governmental orders or directives. Tenant shall receive a reasonable abatement of rent or other charges, by reason of such interruption, curtailment or suspension and in the event that interruption, curtailment, or suspension continues for more than thirty (30) days, Tenant hereunder may terminate this Lease. Article 6. Indemnity and Tenant's Insurance. A. • Tenant's General Liability and Property Insurance. Tenant agrees pursuant to this covenant, at its own cost and expense, to procure and continue in force general liability insurance covering any and all claims for injuries to persons or damage to property in or upon the Leased Premises and for adjacent areas, including all damage from signs, glass, awnings, fixtures or other appurtenances now or hereafter erected on the Leased Premises, and insuring during the Lease Term, and any renewal or extension thereof, and the indemnity agreement contained in this Article. Such insurance at all times shall be in the amount of not less than One Million Dollars ($1,000,000.00) for injury to one person and not less than Two Million Dollars ($2,000,00.00) for injuries to more than one person in one accident. Tenant also shall carry property damage insurance for damage to Tenant's property in an amount of not less than eighty percent (80%) of the full replacement cost of Tenant's equipment, furniture, fixtures, inventory, supplies and other property. Such insurance shall be written with a company or companies authorized to engage in the business of general liability and property insurance in the state in which the Leased Premises are located. B. Landlord's General Liability and Property Insurance. Tenant agrees to pay Tenant's share of the premium Landlord pays and generally apportions to its tenants of the 9 of 25 )ml' DRAFT subject property for property; and liability, and boiler and machinery_insurance on the subject property. tac(uc7-<? iW < • Landlord agrees, pursuant to this covenant, at its own cost and expense, to procure and continue in force general liability insurance covering any and all claims for injuries to persons or damage to property in or upon the Common and Public Areas. Such insurance at all times shall be in the amount of not less than One Million Dollars ($1,000,000.00) for injury to one person and not less than Two Million Dollars ($2,000,000.00) for injuries to more than one person in one accident. Landlord shall maintain, at a prorated cost to tenant, insurance against loss from the perils commonly insured under standard fire and extended coverage policies and boiler and machinery policies_an amount equal to the full cost of replacement of the subject property and its alterations, additions or improvements not required to be insured by the Tenant. Such insurance shall not cover Tenant's improvements and betterments, contents or other property of Tenant. Tenant shall not violate, or permit the violation of, any condition imposed by Landlord's insurance policies, and shall not do, or permit anything to be done, or keep or permit anything to be kept in the Leased Premises which would increase the fire or other property or casualty insurance rate on the building or buildings of the subject property or the property therein over the rate which would otherwise then be in effect (unless Tenant pays the resulting increased amount of premium as provided under the further terms hereof), or which would result in insurance companies of good standing refusing to insure the same or any of such property in amounts and at normal rates reasonably satisfactory to Landlord. If, by reason of any act or omission on the part of Tenant, the rate of property insurance on the subject property or equipment or other property of Landlord or other tenants shall be higher than it otherwise would be, Tenant shall reimburse Landlord on demand, for the part of the premiums for property insurance paid by Landlord because of such act or omission on the part of Tenant, which sum shall be deemed additional rent for purposes of collection only. C. Waiver of Subrogation Rights. The parties agree that, if any of the companies issuing insurance to them to comply with the terms of this Lease shall require a waiver of subrogation rights as a condition of issuing such insurance, the other party hereto shall cooperate in waiving such subrogation rights, provided that such waiver does not interfere 10 of 25 DRAFT with the parry's own insurance. Should such a waiver result in an increase in Landlord's insurance premium of fees, Tenant agrees to pay to Landlord a sum equal to the amount by which Landlord's insurance premiums or fees are so increased. D. Tenant Indemnification of Landlord. Tenant will be responsible for and does hereby release and relieve Landlord and will hold and defend it harmless from and indemnify it against any and all liabilities, obligations, damages, penalties, claims, costs, charges and expenses which may be imposed upon or incurred by Landlord by reason of loss of life, personal injury and/or damages to property occurring in any part of the Leased Premises occasioned in whole or in part by the negligence of Tenant, its agents or employees against and from all liabilities, obligations, damages, penalties, claims, costs and expenses which may be imposed upon or incurred by or asserted against Landlord and/or its agents by reason of Tenant's occupancy of the premises or the activities of Tenant or Tenant's invitees, agents and employees within and upon the subject property . E. Notice of Claims. Tenant shall notify the Landlord in writing, within ten (10) days of any and all occurrences that could constitute the basis of a claim for loss covered by the Landlord's insurance coverage. F. Landlord's Indemnification of Tenant. Landlord will be responsible for and does hereby release and relieve Tenant and will hold and defend it harmless from and indemnify it any and all losses, liabilities, expenses, costs, charges, penalties, damages or claims which may be imposed upon, incurred, or made by Landlord or any person claiming under Landlord and against Tenant, which results from any act or omission of Landlord or Landlord's agents or employees and from and against any losses, liabilities, expenses, penalties, damages or claims arising out of the use of the by reason of loss of life, personal injury and/or damages to property occurring in any part of the Leased Premises or the Common and Public Areas in whole in whole or in part caused by any negligent act, in whole or in part, of landlord, its agents or employees. G. Use of Insurance Proceeds and Abatement of Rent. Except as provided in Article 6.H., if the Leased Premises shall be damaged by fire or any other casualty insurable under the Landlord's insurance policy, Landlord shall, upon receipt of the insurance proceeds, 11 of 25 i DRAFT repair the same, and the Rent and other charges collectible as rent for the Leased Premises shall be abated pending completion of such repairs provided that Tenant is unable to reasonably conduct its business at the Leased Premises as a result of the damage or repairs.. However, Landlord shall not be required to repair or rebuild any of Tenant's improvements or changes as set forth in Articles 4 and S. Landlord shall expeditiously make such repairs required of it, but if Landlord fails to make such repairs within twelve months after the date of the fire or other casualty and such additional time as may be caused by unavoidable delays, then Tenant may terminate this Lease on ninety (90) days written notice to Landlord, and if the Lease is terminated, be relieved in case the Leased Premises were wholly unusable and unused by Tenant, of all obligations under this Lease except such as accrued prior to the effective date of the notice. If the damage is caused by the negligence of Tenant or its employees, Tenant shall repair and refixture the interior of the Leased Premises in a manner and to at least a condition equal to the existing prior to its destruction or casualty (excepting Tenant's own leasehold improvements, which Tenant shall not be required to replace hereunder) and the proceeds of all insurance carried by Tenant on its property and improvements shall be held in trust by Tenant for the purpose of said repair or replacement. If the damage is caused by the negligence of Tenant or its employees, agents, invitees and concessionaires there shall be no abatement of rent. H. Termination or Abatement After Destruction. If the Leased Premises (a) by reason of such occurrence are rendered wholly untenantable or (b) should be damaged as a result of a risk which is not covered by Landlord's insurance or (c) should be damaged in whole or in part during the last year of the term of this lease, or (d) should the subject property's building or buildings, whether the Leased Premises are damaged or not, be damaged to the extent of fifty percent (50%) or more of the monetary value thereof, or the (e) Common and Public Areas of the subject property are damaged, whether or not the Leased Premises are damaged, to such an extent that the subject property cannot, in the judgment of Landlord and Tenant, be operated as a integral commercial unit, then or in any of such events, Landlord may either elect to repair the damage or may terminate this Lease upon giving the Tenant thirty (30) days notice and, upon the expiration of said thirty (30) days notice period, this Lease shall terminate as if such termination date were the expiration of the term. In the event of the 12 of 25 (OR ? 0-111*' DRAFT termination of this Lease pursuant to any of the provisions of this Section, this Lease shall expire as fully and completely on the effective date set forth in the notice of termination as if that were expiration of the term, but the fixed rent and all other charges collectible as rent, shall be prorated to and adjusted as of the date of such damage or destruction. I. No Damages for Interruption. No damages, compensation or claim except for a reasonable abatement of rent shall be payable by Landlord for interruption, inconvenience, loss of business or annoyance arising from any repair or restoration of any portion of the Leased Premises, the subject property or of the building or structures of the subject property pursuant to this Article. Article 7. Landlord's Covenants. A. Landlord's Improvements to Leased Premises. Landlord shall, at its own expense, at execution of agreement by Tenant and prior to the Commencement Date of the Lease: • In all offices and bathrooms - replace flooring and ceiling tiles, paint, ensure heat and air conditioning equipment are in -good operating condition • Pressure wash the dock area to remove dir and debris ¦ Ensure dock plates are in good operating condition • Ensure all lights are in operable order with switch plates attached • Ensure all exit doors are secured and in good operating condition • Repair the drive-in doors and ensure they are in good operating condition. B. Maintenance and Repairs. Landlord agrees to keep and maintain the Leased Premises and the Common and Public Areas, the roof and structural portions of the Leased Premises, the building systems, such as electrical, plumbing, and exterior utility lines, except any damage thereto caused by any act, omission or negligence of Tenant, its employees, agents, invitees, contractors or persons making deliveries to the Leased Premises, in which event such damage shall be promptly repaired by, and at the sole expense of Tenant. Landlord shall be responsible for the cost and performance of any repairs which do not fall under Article 4.A. of this Lease. Landlord shall not be obligated or liable for any failure or delay on its maintenance or repairs until the expiration of ten (10) days after notice from Tenant that such maintenance or repair is needed. 13 of 25 COO-) ?urr" J DRAFT B. Real Estate Taxes. Tenant shall pay Tenant's share of the annual real estate taxes and assessments imposed upon the property and buildings of the Leased Premises and surrounding subject property. r W]LIO- f 1A (lPrrf sj C. Insurance Premium. Tenant shall pay Tenant's share of the premium paid by Landlord for property, liability and boiler and machinery insurance on the subject property in accordance with Article 6.8. 1,1 R4,fi ok- D. Management Fee. Landlord shall pay Tenant's share of the annual service fee for the management of the subject property. ?" ?r7lrNt?2c{ r? 1?.fLST^?? E. Common Use and Public Areas Maintenance and Utility Charges. Tenant shall pay any and all of Tenant's share of the Common and Public Areas maintenance and utility charges. K F. No Additional Rent Charged. Landlord agrees and understands, that its payments of taxes, fees and charges under this Article 7 shall not constitute, necessitate or increase any additional amount to Tenant's Rent. Article 8. Covenants. A. Use. Landlord warrants and represents that the Permitted Use set forth in Article 2 above does not violate any law, rule, or regulation of any public authority or insurance underwriter or insurance rating bureau.(Delete this sentence - Landlord will not warrant this. Tenant's attorney should give them an opinion on this prior to executing lease if there is a concern) Tenant covenants and agrees not to use or occupy or suffer or permit the Leased Premises or any part thereof to be used or occupied for any purpose contrary to law or the rules or regulations of any public authority or the requirements of any insurance underwriters or rating bureaus or in any manner so as to increase the cost of insurance to Landlord over and above the normal cost of such insurance for the use herein permitted for the type and location of building and business complex of which the Leased Premises are a part. Nothing contained herein shall permit a use other than the use hereinbefore provided. 14 of 25 J DRAFT B. Compliance with Laws. Tenant shall, in connection with its occupancy, promptly comply with all present and future use related laws, regulations or rules of any municipality, county, state, federal and other governmental authority and any bureau and department thereof, and of the National Board of Fire Underwriters or any other body exercising similar functions which may be applicable to the Leased Premises,excluding the making of any required structural changes thereto or changes or replacements of a capital nature In the event, however, that failure to make any required changes or replacements results in any fines or penalties to the Landlord or the Leased Premises, then Tenant shall be responsible for said fines or penalties and Landlord reserves the right to terminate the Lease.. Tenant shall be required to make any changes toTenant agrees that it will not dump or handle any hazardous materials on the leased Premises and that it will indemnify and hold harmless Landlord in the event it violates this clause during the term of its Lease. If Tenant shall install any electrical equipment that overloads the lines in the Leased Premises, Tenant shall at its own expense make whatever changes are necessary to comply with the requirements of the insurance underwriters and governmental authorities having jurisdiction thereover, If Tenant makes any such improvements, it shall notify Landlord of same, in writing, and upon termination of this Lease and shall restore the building to its original state if Landlord so requests. Tenant shall give prompt notice to Landlord of any notice it receives of the violation of any law or requirement of public authority, and at Tenant's own expense shall comply with all legal requirements which shall, with respect to the Leased Premises or the use and occupation thereof, or the abatement of any nuisance, impose any violation, order or duty on Landlord or Tenant arising from (i) Tenant's use of the Leased Premises, (ii) the manner of conduct of Tenant's business or operation of its installations, equipment or other property therein, (iii) any cause or condition created by or at the instance of Tenant, or (iv) breach of any of Tenant's obligations hereunder. Notwithstanding anything to the contrary set forth in this Lease, Tenant shall have no responsibility to perform any repairs, replacements, or additions to the Leased Premises in order to comply with the laws, rules, and regulations mentioned above. Tenant's sole responsibility will be to comply with any use regulations or limitations on use, always provided that Tenant shall have the right to terminate this Agreement on ninety days prior written notice if as a result of its compliance with laws, rules,and regulations Tenant cannot utilize the Premises for the use set forth in Section 2 above. In the event, however, that Tenant violates any use or non-use related law, rule or regulation and does not make the 15 of 25 J DRAFT necessary changes or repairs to bring its operation into compliance, then Tenant shall be responsible for any and all fines, penalties, and/or damages resulting from its failure to comply and Landlord reserves the right to terminate this Lease. C. Janitorial Services. Tenant covenants and agrees to perform janitorial services and to keep the Leased Premises in clean and sightly appearance. D. Use of Vending, Food and Game Machines. Tenant shall not operate or allow the operation of, including but not limited to, vending, food, game and video machines or services in areas of the Leased Premises not exclusively restricted to Tenant's employees. E. Plumbing. Tenant shall not use the plumbing facilities for any purpose other than that for which they were constructed, or dispose of any garbage or other foreign substances therein, whether through the utilization of so-called "disposal" or similar units, or otherwise. F. Liens. Tenant shall not subject any fixtures, furnishings or equipment in or on the Leased Premises, which are affixed to the realty to any mortgages, liens, conditional sales agreements, security interests or encumbrances. G. Damage to Leased Premises. Tenant shall not perform any act or carry on any practice, which may damage, mar or deface the Leased Premises or any other part of the business complex. H. Odors, Noise, etc. Tenant shall not cause or permit any offensive or obnoxious vibration noise, odor or other undesirable effect to emanate from the Leased Premises or any machine or other installation therein, or otherwise cause or permit the Leased Premises to constitute a nuisance, annoyance or interference with the safety, comfort or convenience of Landlord or any of the other occupants of the business complex. Upon notice by Landlord to Tenant that any of the aforesaid is occurring, Tenant shall forthwith (but in all events within five (5) days), except if Tenant is diligently pursuing a cure, remove or control the same. Notwithstanding anything to the contrary set forth in this Lease, in the event Tenant is unable to utilize the premises for the Permitted Use during the term of this Lease, either as a result of applicable zoning laws and regulations, complaints from other tenants of the Building, or 16 of 25 " rl DRAFT complaints from other Tenants regarding objectionable odors, then in such event Tenant shall have the right to terminate this Lease upon ninety days written notice to the Landlord without further obligation beyond the termination date except to pay the Landlord any monies owed up to and including the termination date. Tenant shall at all times conduct its business in a reasonable manner and make reasonable efforts to limit excessive noise or odors in the operation of its business. In the event other tenants in the building complain of excessive noise or odor, and Tenant is unable to remedy such complaints, then Landlord reserves the right to terminate this Lease upon ninety (90) days written notice and Tenant shall be responsible for all rent or other monies due landlord up to and including the date of termination. Article 9. Condemnation. A. In the event that the Leased Premises or any part thereof shall be permanently taken or condemned, or transferred by agreement in lieu of condemnation, for any public or quasi-public use or purpose by any competent authority, and whether or not this Lease shall be terminated, the entire compensation award therefor, both leasehold and reversion, shall belong to the Landlord without any deduction therefrom for any present or future estate of Tenant and Tenant hereby assigns to Landlord all its right, title and interest in and to any such award. Tenant shall, however, be entitled to claim, prove and receive in such condemnation proceedings such award as may be allowed for fixtures and other equipment installed by it but only if or to the extent such award shall be in addition to the award for the land and the building and other improvements (or portions thereof) containing the Leased Premises. B. If the entire Leased Premises shall be taken or condemned as aforesaid, then this Lease shall become null and void from the time possession thereof is required for public use and from that date the parties hereto shall be released from further obligation hereunder; but in the event a portion only of the Leased Premises itself shall be so taken or condemned, then Landlord may elect to terminate this Lease or repair and restore the portion not affected by the taking within one (1) year of such taking, and thereafter fixed minimum and percentage rent and other charges to be paid by Tenant shall be equitably and proportionately adjusted. C. In the event a portion of the Leased Premises shall be taken, condemned or transferred as aforesaid and as a result thereof Landlord in its sole discretion elects to 17 of 25 eirl", DRAFT discontinue the operation of the subject property and business premises, Landlord may cancel this Lease by giving Tenant notice of its election and this Lease shall terminate and shall be null and void ninety (90) days after said notice, excepting and reserving to the parties any rights or remedies each may have had against the other which accrued prior to the termination date. In the event such partial taking or conveyance is not extensive enough to render the premises unsuitable for the business of Tenant, this Lease shall continue in full force and effect except that the Base Rent shall be reduced in the same proportion that the floor area of the Leased Premises so taken or conveyed bears to such floor area immediately prior to taking or conveyance, such reduction commencing as of the date Tenant is required to surrender possession of such portion. D. In the event of a partial condemnation, Landlord shall promptly restore the Leased Premises, to the extent of condemnation proceeds available for such purpose, as nearly as practicable to a condition comparable to their condition at the time of such condemnation less the portion lost in the taking or conveyance and Tenant shall promptly make all necessary repairs, restoration and alterations of tenant's fixtures, equipment and furnishing and shall promptly reenter the Leased Premises and commence doing business in accordance with the provisions of this Lease. For purposes of determining the amount of funds available for restoration of the Leased Premises from the condemnation award, said amount will be deemed to be that part of the award which remains after payment of Landlord's reasonable expenses incurred in recovering same and which represents a portion of the total sum so available (excluding any award or other compensation for land) which is equitably allocated to the Leased Premises. Article 10. Destruction and Restoration. A. If the Leased Premises shall be damaged during the Lease Term to the extent of fifty percent (50%) or more of the cost of replacement thereof, or damaged by any uninsured event, either party shall have the option to terminate this Lease to be exercised by notice to Tenant given no more than ninety (90) days after the date Landlord received its insurance settlement, or if uninsured, no more than one (1) year after the date of damage. 18 of 25 DRAFT B. If the Leased Premises shall be damaged during the Lease Term to the extent of less than fifty (50%) of the cost of replacement by fire or other event covered by Landlord's policy of fire and extended coverage insurance, then upon notice by Landlord to Tenant given not more than ninety (90) days after the date Landlord receives its insurance settlement, the parties shall restore the Leased Premises to substantially the same condition in which they existed prior to the damage, provided however, and excepting, that if such an event occurs during the last five (5) years of this Lease, then Landlord shall have the option to: (1) rebuild but does not agree to do so unless Tenant, thirty (30) days after receipt of the insurance settlement by Landlord, enters into a renewal of this Lease on agreed terms and conditions with the renewal lease to commence upon the date of completion of such rebuilding; or (2) rebuild or terminate this Lease to be exercised by notice to Tenant given not more than ninety (90) days after the date Landlord receives its insurance settlement. C. Landlord's obligation to rebuild and repair under this Lease shall, in any event, be limited to rebuilding, repairing and restoring the Leased Premises to substantially the condition in which the same existed prior to the damage and Tenant agrees that, promptly after completion of such work by Landlord, Tenant shall commence and diligently proceed at its sole cost and expense to rebuild, repair, restore and replace its leasehold improvements, fixtures, equipment, furnishings and merchandise and open for business in the Leased Premises. Article 11. Notices. Any notice which Landlord or Tenant may be required to give to the other party that is required to be in writing shall be mailed to the other party at the addresses specified herein, or to such other address as either party shall have designated to the other, and the time of the rendition of such shall be when same is deposited in an official United States Post Office, postage prepaid, via regular mail, unless otherwise provided herein. Notices to Landlord: Mumma Realty Associates, Inc. c/o RSR LLC, REALTORS® 3 Lemoyne Drive, Suite 100 Lemoyne, PA 17043 Notices to Tenant: CD&L Inc. Attn: Renrcly- 4eremekh Vm,n .!< 5??????; . 19 of 25 q,,,:)? ?/ DRAFT 1490-H-agy-L-an e ?z u es1 l`?Y 3 Article 12. Assignment. Tenant shall not assign this Lease or sublet the Leased Premises or enter into a concession agreement, not in existence on the date first written above, without the prior written approval of Landlord, which approval shall not be unreasonably withheld or delayed. Any assignment or subleasing or concession agreement shall not relieve Tenant from its liability under the terms and conditions of this Lease, and any assignee to Tenant shall be bound unconditionally by and perform all of the obligations of Tenant hereunder. Any additional or higher rent received as a result of a sublet or assignment of this lease or any part of the premises shall be divided equally by Landlord and Tenant, each receiving fifty percent (50%) thereof, and shall be paid promptly to both parties hereto upon receipt by either of them. Article 13. Quiet Enjoyment. Landlord covenants and agrees that if Tenant timely pays the rent and other charges herein provided and performs all of the covenants and agreements herein stipulated to be performed on the Tenant's part, Tenant shall, at all times during said term, have the peaceable and quiet enjoyment and possession of the Leased Premises without any manner of hindrance from Landlord or any persons lawfully claiming through Landlord, except as to such portion of the Leased Premises as shall be taken under power of eminent domain or shall have suffered casualty requiring repairs or restoration for which Landlord is responsible, in which event the time required for said repairs or restoration is also excepted. Article 14. Default. A. Events of Default. 1. In addition to and without limiting any other provisions in this Lease relating to Tenant's breach of the Lease or default hereunder, any of the following shall constitute an Event of Default under this Lease: 20 0 25 DRAFT (a) Failure of Tenant to pay Rent or any other charges or sums due under the Lease within ten (10) days after written notification of such default either by mail or hand delivery; or (b) Failure to perform any term, condition or covenant of this Lease to be observed or performed by Tenant for more than ten (10) days after written notice of such default; or (c) If Tenant is or shall become insolvent; or (d) If Tenant shall suffer this Lease to be taken under any writ of execution in bankruptcy or receivership; or (e) If Tenant shall have filed against it a bill in equity or if proceedings are otherwise initiated for the appointment of a receiver of its assets or proceedings in any court for a composition with its creditors or for relief in any manner from the payment of its debts when due under any state or federal law, which shall not be dismissed within sixty (60) days from the date of filing thereof. B. Notice of Default and Grace Period. If Tenant has failed to perform or has violated any of the terms, covenants, conditions or agreements contained in this Lease or Tenant's part to be performed, other than the payment of rent or other charges payable by Tenant to Landlord hereunder, Landlord shall so notify Tenant in writing. Thereupon Tenant shall either (a) correct the matters complained of in such notice within thirty (30) days after receipt of such notice; or (b) if more than such thirty (30) days are required to correct with reasonable diligence the matters complained of in such notice, shall commence to correct them within such thirty (30) days and pursue such corrective action with reasonable diligence thereafter. C. Notwithstanding anything to the contrary set forth in this lease, if an Event of Default by Tenant occurs, Landlord shall have the obligation to use reasonable efforts to mitigate Tenant's damages under this Lease by re-leasing the Premises. Article 15. Landlord's Remedies Upon Default. 21 of 25 1 • DRAFT A. Upon the occurrence of any Event of Default, then Landlord, in addition to all other rights or remedies it may have by law and in equity, shall have the right: 1. To declare due and payable unpaid rent and all other charges due and payable by Tenant to Landlord including Rent for the unexpired term of this Lease and all costs and commissions provided or permitted by law; 2. To enter the Leased Premises, after exercising due process of law, and distraint upon and sell any property therein which may be lawfully subject to distraint; 3. To lease all or any part of the Leased Premises to another person with or without first altering the same; 4. To confess judgment on behalf of Tenant in favor of Landlord for all amounts due hereunder with interest, costs and attorney's commission of 10% using this Lease or a copy hereof as authority for such action; or 5. To enter an amicable action and judgment in ejectment against Tenant, using this Lease or a copy hereof as authority and causing a writ of possession to be issued. B. No waiver of any covenant or condition or of the breach of any covenant or condition of Lease shall be taken to constitute a waiver of any subsequent breach of such covenant or condition, nor justify nor authorize the non-observance on any other occasion of the same or of any other covenant or condition hereof. The acceptance of rent by Landlord at any time while Tenant remains in default under any obligation, covenant or condition hereof, may not be construed as a waiver of any right or remedy available to Landlord in law or equity under this Lease on account of such default; nor shall any waiver or indulgence granted by Landlord to Tenant operate as an estoppel against Landlord's option to pursue any remedy available to it under the Lease or in law or equity so long as such default continues. Article 16. Default by Landlord. 22 of 25 (FV DRAFT Landlord shall in no event be charged with default in the performance of any of its obligations hereunder unless and until Landlord shall have failed to perform such obligations within thirty (30) days (or such additional time as is reasonably required to correct any such default) after written notice to Landlord by Tenant properly specifying wherein Landlord has failed to perform any such obligations. Such notice shall be computed from the date of Landlord's receipt. In the event that Landlord fails to cure the default within this timeframe, Tenant shall have all rights, remedies and positive action given Tenant by the laws of the Commonwealth of Pennsylvania and this Lease shall not be deemed a waiver of any such rights, remedies or causes of action. Article 17. Miscellaneous. A. Access to Leased Premises. Tenant agrees to permit Landlord, its agents and employees, to inspect or examine the Leased Premises at any reasonable time and to make such repairs, alterations, improvements or additions in the Leased Premises, or to the building of which the Leased Premises 'are a part, as Landlord may deem desirable or necessary for preservation or improvement of the Leased Premises. In the event Tenant is unable to reasonably operate its business for a period greater than one (1) day due to Landlord's repairs or improvements, Tenant's rent shall be abated until such time Tenant can reasonably operate its business. Landlord or Landlord's agents shall also have the right to enter upon the Leased Premises at reasonable times to show them to actual or prospective mortgages or leases of the subject property. During the 180 days prior to the expiration of the term of this Lease, Landlord may show the Leased Premises to prospective tenants. If, during the last 90 days of the term of this Lease, Tenant shall have removed all of Tenant's property therefrom, Landlord may immediately enter, alter, renovate and redecorate the Leased Premises without elimination or abatement of rent or other compensation and such action shall have no effect upon this Lease. B. Mechanics Liens. No work may be commenced by Tenant until Mechanic Lien Waivers executed by each contractor, subcontractor and materialman supplying goods or services have been filed with the Landlord and Landlord has authorized Tenant in writing to proceed. 23 of 25 DRAFT C. Relationship of Parties. It is the intention of the parties to create the relationship of Landlord and Tenant, and no other relationship whatsoever, and nothing herein shall be construed to constitute the parties hereto liable for any of the debts or obligations of the other party. D. Effect of Unavoidable Delays. If Landlord shall be delayed or hindered in or prevented from the performance of any act required hereunder by reason of unavoidable delays, then performance of such act shall be excused for the period of delay, and the period of the performance of any such act shall be extended for a period equivalent to the period of such delay. For purposes of this Section, unavoidable delays shall be defined as (i) strikes, lockouts, or labor disputes; (ii) inability to obtain labor, materials, coal, gas, oil or other suitable fuel or reasonable substitutes therefore or the failure of the supply of any thereof; or (iii)' acts of God, governmental restrictions, regulations or controls, enemy or hostile government action, civil commotion, fire or other casualty; or (iv) interruption, curtailment, stoppage or suspension due to accident or to repairs, alterations or improvements in the judgment of Landlord desirable or necessary to be made; or (v) other matters beyond the reasonable control of the parry obligated to perform. The provisions of this section shall not operate to excuse Tenant from the prompt payment of rent or any other payments required by the terms of this Lease. E. Exhibits Part of Lease. All Exhibits attached hereto shall be a part of this Lease in all respects as if above the signatures of the parties. F. Governing Law. This Lease shall be construed, governed and enforced in accordance with the laws of the Commonwealth of Pennsylvania. G. Validity of Provisions. If any provision of this Lease shall be held to be invalid or unenforceable, the remaining provisions of this Lease shall in no way be affected or impaired and such remaining provisions shall continue in full force and effect. H. Successors. Except as otherwise provided in this Lease, the respective rights and obligations provided in this Lease shall bind and shall inure to the benefit of the parties hereto, their legal representatives, heirs, successors and assigns; provided, however, that no 24 of 25 • DRAFT rights shall inure to the benefit of any successor of Tenant unless Landlord's written consent for the transfer to such successor has first been obtained. I. Gender. As used in this Lease, the word "person" shall mean and include, where appropriate, an individual, corporation, partnership or other entity; the plural shall be substituted for the singular, and the singular for the plural, where appropriate; the words of any gender shall mean and include any other gender. J. Captions. Captions, titles of articles and titles of exhibits are for convenience and reference only, and are in no way to be construed as defining or modifying the scope or intent of the various provisions of this Lease. Article 21. Lease Validity. The submission of this Lease for examination and/or execution by Tenant does not constitute a reservation of or option for the Premises described herein for the benefit of Tenant and this Lease shall have no force or validity as a Lease unless and until duly executed by Landlord and delivered by Landlord to Tenant. IN WITNESS WHEREOF, and intending to be legally bound hereby, the Landlord and Tenant have caused this Lease to be signed as of the date and year and in the place first above written. NESS: WITNESS: ,A- ill-, " iL,- * - LANDLORD: Mumma Realty Associates, Inc. , Title: U . TENANT: 2)0-01n kr V sloe •"(n By: r 25 of 25 ? fi? EXHIBIT B a MUMMA REALTY ASSOCIATES, INC., : IN THE COURT OF COMMON PLEAS OF Plaintiff : CUMBERLAND COUNTY, PENNSYLVANIA v NO. 08- CIVIL TERM CLICK MESSENGER SERVICE, INC. d/b/a CD&L, INC., Defendant AFFIDAVIT I, acknowledge and verify that the Lease attached to the Complaint as Exhibit "A" is a true and correct copy of the Lease between Plaintiff and Defendant. MUMMA REALTY ASSOCIATES, INC. By Date: L Y? v t • t EXHIBIT C o y` AM1? `PM1 9 ? ,gyp Property Management, Inc. January 22, 2007 CD&L Inc. 80 Wesley Street South Hackensack, New Jersey 07600 Attn: Dominick Simone RE: Delinquent Rent 800 Paxton Street, Harrisburg Pennsylvania Dear Tenant: N ACCREDITED MANAGEMENT ORGANIZATION"' It has come to my attention that the following amount is past due on your rental account. Please remit payment in full by: February 1, 2007 Rent January-07 $ 4,750.00 TOTAL AMOUNT DUE: $ 4,750.00 PLEASE REMIT PAYMENT IN FULL BY: February 1, 2007 This is an attempt to collect a debt. Any information obtained will be used for that purpose. Sincerely, PROPERTY MANAGEMENT, INC. Robert L. Hendricks, CPM Commercial Property Manager 1300 Market Street, Suite 201 • P.O. Box 622 • Lemoyne, PA 17043-0622 • (717) 730-4141 • Fax: (717) 730-4140 www.rentpmi.com Property Management, Inc. CD&L, Inc. 80 Wesley Street South Hackensack, New Jersey 07600 Attn: Dominick Simone RE: Delinquent Rent 800 Paxton Street, Harrisburg, Pennsylvania Dear Tenant: ACCREDITED 9 A??] MANAGEMENT ORGANIZATION O February 15, 2007 It has come to my attention that the following amount is past due on your rental account. Please remit payment in full by: February 25, 2007 Rent January-07 $ 4,750.00 February-07 $ 4,750.00 TOTAL AMOUNT DUE: $ 9,500.00 PLEASE REMIT PAYMENT IN FULL BY: February 25, 2007 This is an attempt to collect a debt. Any information obtained will be used for that purpose. Sincerely, PROPERTY MANAGEMENT, INC. Robert L. Hendricks, CPM Commercial Property Manager 1300 Market Street, Suite 201 • P.O. Box 622 • Lemoyne, PA 17043-0622 • (717) 730-4141 • Fax: (717) 730-4140 www.rentpmi.com ,PM1 Property Management, Inc. CD&L, Inc. 80 Wesley Street South Hackensack, New Jersey 07600 Attn: Dominick Simone RE: Delinquent Rent 800 Paxton Street, Harrisburg, Pennsylvania Dear Tenant: ACCREDITED MANAGEMENT ORGANIZATIONS' . it pot. March 6, 2007 It has come to my attention that the following amount is past due on your rental account. Please remit payment in full by: March 16, 2007 Rent January-07 $ 4,750.00 February-07 $ 4,750.00 March-07 $ 4,750.00 Late Fee Charge March-07 $ 475.00 TOTAL AMOUNT DUE: $ 14,725.00 PLEASE REMIT PAYMENT IN FULL BY: March 16, 2007 This is an attempt to collect a debt. Any information obtained will be used for that purpose. Sincerely, 91 7108 2133 3933 4151 6846 PROPERTY MANAGEMENT, INC. Ro ert L. Hendricks, CPM Commercial Property Manager 1300 Market Street, Suite 201 • P.O. Box 622 e. Lemoyne, PA 17043-0622 • (717) 730-4141 • Fax: (717) 730-4140 www.rentpml.com VERIFICATION acknowledge that I have the authority to execute this Verification on behalf of umma Realty Associates, Inc. and certify that the foregoing Complaint is based upon information which has been gathered by my counsel in the preparation of the lawsuit. The language of this Complaint is that of counsel and not my own. I have read the document and to the extent the Complaint is based upon information which I have given to my counsel, it is true and correct to the best of my knowledge, information and belief. To the extent that the content of the Complaint is that of counsel, I have relied upon counsel in making this Verification. This statement and Verification are made subject to the penalties of 18 P.S. § 4904 relating to unsworn falsification to authorities, which provides that if I knowingly make false averments, I may be subject to criminal penalties. MUMMA REALTY ASSOCIATES, INC. By.- X'?O- /u Date: 3 - ?S ?-V 5 844.10. complaint. wpd No V. Otto III, Esquire Attorney I.D. No. 27763 Seth T. Mosebey, Esquire Attorney I.D. No. 203046 MARTSON DEARDORFF WILLIAMS OTTO GILROY & FALLER MARTSON LAW OFFICES 10 East High Street Carlisle, PA 17013 (717) 243-3341 Attorneys for Plaintiff MUMMA REALTY ASSOCIATES, INC., Plaintiff V. CLICK MESSENGER SERVICE, INC d/b/a CD&L, INC., Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA : NO. 08- CIVIL TERM CERTIFICATE OF RESIDENCE We hereby certify that the last known address of the Defendant is: Click Messenger Service, Inc. d/b/a CD&L, Inc. 80 Wesley Street South Hackensack, New Jersey 07600 The address of Plaintiff is: 1043 Mumma Road, Wormleysburg, Cumberland County, Pennsylvania. MARTSON LAW OFFICES By-'&A X. ok'? Seth T. Mosebey, Esquire Date: ?? ?? ?? Attorneys for Plaintiff 5 844.10. complaint. wpd No V. Otto III, Esquire Attorney I.D. No. 27763 Seth T. Mosebey, Esquire Attorney I.D. No. 203046 MARTSON DEARDORFF WILLIAMS OTTO GILROY & FALLER MARTSON LAW OFFICES 10 East High Street Carlisle, PA 17013 (717) 243-3341 Attorneys for Plaintiff MUMMA REALTY ASSOCIATES, INC., Plaintiff V. CLICK MESSENGER SERVICE, INC. d/b/a CD&L, INC., Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA : NO. 08- CIVIL TERM AFFIDAVIT I, Seth T. Mosebey, Esquire, attorney for Plaintiff, hereby certify, that to the best of my knowledge, that the Confession of Judgment for Money attached is not being entered against a natural person in connection with a consumer credit transaction. Date: Z1I1 1 Q Sworn to and subscribed ?rrll before me this J s day of JamTay, 2008. i J-- Seth T. Mosebey, Esq re COMMONWEALTH OF PENNSYLVANIA Notarial Seal Mary M. Price, Notary Public Carlisle Boro, Cumberland Courtly My CO WnWslon E)Ores Aug. 18, 2011 Member, Pennsylvania Assoolatlon o NNohrNi No V. Otto III, Esquire Attorney I.D. No. 27763 Seth T. Mosebey, Esquire Attorney I.D. No. 203046 MARTSON DEARDORFF WILLIAMS OTTO GILROY & FALLER MARTSON LAW OFFICES 10 East High Street Carlisle, PA 17013 (717) 243-3341 Attorneys for Plaintiff MUMMA REALTY ASSOCIATES, INC., Plaintiff V. CLICK MESSENGER SERVICE, INC d/b/a CD&L, INC., Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA : NO. 08- CIVIL TERM NOTICES IN CONNECTION WITH JUDGMENTS BY CONFESSION REQUIRED BY 42 PA. C.S.A. §2737.1. (Act 105 of 2000) PURSUANT TO 42 PA. C.S.A. SECTION 2737.1, IF YOU HAVE BEEN INCORRECTLY IDENTIFIED AND HAD A CONFESSION OF JUDGMENT ENTERED AGAINST YOU, YOU ARE ENTITLED TO COSTS AND REASONABLE ATTORNEY FEES AS DETERMINED BY THE COURT. INSTRUCTIONS REGARDING THE PROCEDURE TO STRIKE THE CONFESSED JUDGMENT ARE SET FORTH BELOW: Pennsylvania Rule of Civil Procedure 2959 - Striking Off Judgment (a) (1) Relief from a judgment by confession shall be sought by petition. Except as provided in subparagraph (2), all grounds for relief whether to strike off the judgment or to open it must be asserted in a single petition. The petition may be filed in the county in which the judgment was originally entered, in any county to which the judgment has been transferred or in any other county in which the sheriff has received a writ of execution directed to the sheriff to enforce the judgment. (2) The ground that the waiver of the due process rights of notice and hearing was not voluntary, intelligent and knowing shall be raised only: (i) in support of a further request for a stay of execution where the court has not stayed execution despite the timely filing of a petition for relief from the judgment and the presentation of prima facie evidence of a defense; and (ii) as provided by Pennsylvania Rule of Civil Procedure 2958.3 or Rule 2973.3. (3) If written notice is served upon the petitioner pursuant to Rule 2956.1(c)(2) or Rule 2973.1(c), the petition shall be filed within thirty days after such service. Unless the defendant can demonstrate that there were compelling reasons for the delay, a petition not timely filed shall be denied. (b) If the petition states prima facie grounds for relief the court shall issue a rule to show cause and may grant a stay of proceedings. After being served with a copy of the petition the plaintiff shall file an answer on or before the return of the rule. The return day of the rule shall be fixed by the court by local rule or special order. (c) A party waives all defenses and objections which are not included in the petition or answer. (d) The petition and the rule to show cause and the answer shall be served as provided in Rule 440. (e) The court shall dispose of the rule on petition and answer, and on any testimony, depositions, admissions and other evidence. The court for cause shown may stay proceedings on the petition insofar as it seeks to open the judgment pending disposition of the application to strike off the judgment. If evidence is produced which in a jury trial would require the issues to be submitted to the jury the court shall open the judgment. (f) The lien of the judgment or of any levy or attachment shall be preserved while the proceedings to strike off or open the judgment are pending. You may have other rights available to you other than as set forth in this notice. You should take this paper to your lawyer at once. If you do not have a lawyer, go to or telephone the office set forth below. This office can provide you with information about hiring a lawyer. If you cannot afford to hire a lawyer, this office may be able to provide you with information about agencies that may offer legal services to eligible persons at a reduced fee or no fee. Cumberland County Bar Association 32 South Bedford Street Carlisle, PA 17013 (717) 249-3166 5644.10. complaintmpd No V. Otto III, Esquire Attorney I.D. No. 27763 Seth T. Mosebey, Esquire Attorney I.D. No. 203046 MARTSON DEARDORFF WILLIAMS OTTO GILROY & FALLER MARTSON LAW OFFICES 10 East High Street Carlisle, PA 17013 (717) 243-3341 Attorneys for Plaintiff MUMMA REALTY ASSOCIATES, INC., Plaintiff V. CLICK MESSENGER SERVICE, INC d/b/a CD&L, INC., Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA : NO. 08- CIVIL TERM NOTICE UNDER RULE 2958.1 OF JUDGMENT AND EXECUTION THEREON Notice of Defendants' Rights TO: Click Messenger Service, Inc. d/b/a CD&L, Inc A judgment in the amount of $117,016.66 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 a written agreement or other paper 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. THIS OFFICE CAN PROVIDE YOU WITH INFORMATION ABOUT HIRING A LAWYER. IF YOU CANNOT AFFORD TO HIRE A LAWYER, THIS OFFICE MAY BE ABLE TO PROVIDE YOU WITH INFORMATION ABOUT AGENCIES THAT MAY OFFER LEGAL SERVICES TO ELIGIBLE PERSONS AT A REDUCED FEE OR NO FEE. Cumberland County Bar Association 32 South Bedford Street Carlisle, PA 17013 (717) 249-3166 MARTSON LAW OFFICES By ? J - '/?Ze?-ol ?? No V. Otto III, Esquire Attorney I.D. No. 27763 Seth T. Mosebey, Esquire Attorney I.D. No. 203046 10 East High Street Carlisle, PA 17013 (717) 243-3341 Attorneys for Plaintiff CERTIFICATE OF SERVICE I, Seth T. Mosebey, an authorized agent for Martson Law Offices, hereby certify that a copy of the foregoing Complaint in Confession of Judgment was entered this date by depositing same in the Post Office at Carlisle, PA, first class mail, postage prepaid, addressed as follows: Mr. Dominick Simone CD&L, Inc. 80 Wesley Street South Hackensack, NJ 07600 Stephen Fogarty, Esquire Holloran and Sage, LLP 315 Post Road West Westport, CT 06880 MARTSON LAW OFFICES By zA J-1 #Awt? Seth T. Mosebey, Esq ire Ten East High Street Carlisle, PA 17013 (717) 243-3341 Dated:/?/Q 8' *h? V? `r ?) _ -, FTILES\Clients\5844 Mumma Estate\5844.10 CD&L\5844.10.pra No V. Otto III, Esquire Attorney I.D. No. 27763 Seth T. Mosebey, Esquire Attorney I.D. No. 203046 MARTSON DEARDORFF WILLIAMS OTTO GILROY & FALLER MARTSON LAW OFFICES 10 East High Street Carlisle, PA 17013 (717) 243-3341 Attorneys for Plaintiff MUMMA REALTY ASSOCIATES, INC., IN THE COURT OF COMMON PLEAS OF Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA V. NO. 2008 - 2112 CIVIL TERM CLICK MESSENGER SERVICE, INC. d/b/a CD&L, INC., Defendant To the Prothonotary: PRAECIPE Please mark the judgment in the above-referenced matter satisfied and the action discontinued. MARTSON LAW OFFICES By J, A06 No V. Otto III, Esquir Attorney I.D. No. 27763 Seth T. Mosebey, Esquire Attorney I.D. No. 203046 10 East High Street Carlisle, PA 17013 (717) 243-3341 Date: I N/6 Attorneys for Plaintiff CERTIFICATE OF SERVICE I, Seth T. Mosebey, an authorized agent for Martson Law Offices, hereby certify that a copy of the foregoing Praecipe was entered this date by depositing same in the Post Office at Carlisle, PA, first class mail, postage prepaid, addressed as follows: Mr. Dominick Simone CD&L, Inc. 80 Wesley Street South Hackensack, NJ 07600 Stephen Fogarty, Esquire Holloran and Sage, LLP 315 Post Road West Westport, CT 06880 MARTSON LAW OFFICES By `> . -3, '4) Seth T. Mosebey, Esquire Ten East High Street Carlisle, PA 17013 (717) 243-3341 Dated: J 1711 a FIE)-OFFICE OF THE PROP C3TARY 2010 JAN -7 AM 9: 21 F=Sips vii,`a