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HomeMy WebLinkAbout04-0873NORFOLK SOUTHERN RAILWAY COMPANY and PENNSYLVANIA LINES LLC, Plaintiffs VS. IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA Docket No. IV - g 73 Cum.,/ HARRISBURG TAXICAB & BAGGAGE CIVIL ACTION - LAW COMPANY, a Pennsylvania corporation; CLYDE BACHERT, an individual; and Action in Ejectment COURTEOUS RENTAL, INC. Defendants NOTICE YOU HAVE BEEN SUED IN COURT. If you wish to defend against the claims set forth in the following pages, you must take action within twenty (20) days after this Complaint and Notice are served, by entering a written appearance personally or by attorney and filing in writing with the Court your defenses or objections to the claims set forth against you. You are warned that if you fail to do so the case may proceed without you and a judgment may be entered against you by the Court without further notice for any money claimed in the Complaint or for any other claim or relief requested by the Plaintiff. You may lose money or property or other rights important to you. YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER, 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 (800) 990-9108 NORFOLK SOUTHERN RAILWAY COMPANY and PENNSYLVANIA LINES LLC, Plaintiffs vs. HARRISBURG TAXICAB & BAGGAGE COMPANY, a Pennsylvania corporation; CLYDE BACHERT, an individual; and COURTEOUS RENTAL, INC. Defendants IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA Docket No. CIVIL ACTION - LAW Action in Ejectment AVISO USTED HA SIDO DEMANDADO/A EN CORTE. Si usted desea defenderse de las demandas que se presentan mas adelante en ]as siguientes paginas, debe tomar accion dentro de los proximos veinte (20) dias despues de la notificacion de esta Demanda y Aviso radicando personalmente o por medio de un abogado una comparecencia escrita y radicando en la Corte por escrito sus defensas de, y objecciones a, las demandas presentadas aqui en contra suya. Se le advierte de que si usted falla de tomar accion como se describe anteriormente, el caso puede proceder sin usted y un fallo por cualquier suma de dinero reclamada en la demanda o cualquier otra reclamacion o remedio solicitado por el demandante puede ser dictado en contra suya por la Corte sin mas aviso adicional. Usted puede perder dinero o propiedad u otros derechos importantes para usted. USTED DEBE LLEVAR ESTE DOCUMENTO A SU ABOGADO INMEDIATAMENTE. SI USTED NO TIENE UN ABOGADO, LLAME 0 VAYA A LA SIGUIENTE OFICINA. ESTA OFICINA PUEDE PROVEERLE INFORMACION A CERCA DE COMO CONSEGUIR UN ABOGADO. SI USTED NO PUEDE PAGAR POR LOS SERVICIOS DE UN ABOGADO, ES POSIBLE QUE ESTA OFICINA LE PUEDA PROVEER INFORMACION SOBRE AGENCIAS QUE OFREZCAN SERVICIOS LEGALES SIN CARGO 0 BAJO COSTO A PERSONAS QUE CUALIFICAN. CUMBERLAND COUNTY BAR ASSOCIATION 32 South Bedford Street Carlisle, PA 17013 (800) 990-9108 NORFOLK SOUTHERN RAILWAY : IN THE COURT OF COMMON PLEAS COMPANY and PENNSYLVANIA LINES : CUMBERLAND COUNTY, PENNSYLVANIA LLC, Plaintiffs VS. Docket No. HARRISBURG TAXICAB & BAGGAGE CIVIL ACTION - LAW COMPANY, a Pennsylvania corporation; CLYDE BACHERT, an individual; and Action in Ejectment COURTEOUS RENTAL, INC. Defendants COMPLAINT IN EJECTMENT AND NOW come Plaintiffs, Norfolk Southern Railway Company and Pennsylvania Lines LLC, by and through their attorneys, Nauman, Smith, Shissler & Hall, LLP, and make their Complaint in Ejectment against the Defendants, Harrisburg Taxicab & Baggage Company, Clyde Bachert, and Courteous Rental, Inc., as follows: Plaintiff, Norfolk Southern Railway Company (hereinafter "Norfolk Southern'), is a business corporation incorporated under the laws of the State of Virginia, and maintains its principal office at Three Commercial Place, Norfolk, Virginia. 2. Plaintiff, Pennsylvania Lines LLC (hereinafter "PRR"), is a limited liability company organized under the laws of the State of Delaware with principal offices located at Three Commercial Place, Norfolk, Virginia. PRR is a wholly-owned subsidiary of Consolidated Rail Corporation (hereinafter "Conrail"). -1- 3. Defendant, Harrisburg Taxicab & Baggage Company (hereinafter "Harrisburg Taxicab") is a business corporation organized under the laws ofthe Commonwealth ofPennsylvania, with an office located at 50 Market Street, Lemoyne, Cumberland County, Pennsylvania. 4. Defendant, Clyde Bachert (hereinafter "Bachert"), is an adult individual, and is the President and principal owner of Defendant, Harrisburg Taxicab, with offices located at 50 Market Street, Lemoyne, Cumberland County, Pennsylvania.. 5. Defendant, Courteous Rental, Inc. (hereinafter "Courteous Rental'), is a business corporation organized under the laws of the Commonwealth of Pennsylvania, with an office located at 50 Market Street, Lemoyne, Cumberland County, Pennsylvania. Plaintiffs believe and therefore aver that Defendant, Clyde Bachert is the President and principal owner of Defendant, Courteous Rental. 6. On or about November 12, 1997, and prior thereto, Conrail owned a parcel of land in the Borough of Lemoyne, Cumberland County, Pennsylvania, situate near Line Code 1325, Mile Post 83, containing approximately one (1) acre, more or less (hereinafter "Premises l'). 7. Pursuant to the Property Lease dated November 12, 1997, Conrail leased to Defendant, Harrisburg Taxicab, the aforementioned Premises I to be used "solely for parking, security and beautification, and for no other purpose." A true and correct copy of the November 12, 1997, Property Lease (hereinafter "Lease n is attached hereto as Exhibit "A" and made a part hereof. 8. The term of Lease I commenced on December 1, 1997 (the "Commencement Date") and terminated upon thirty days notice from either party (the "Expiration Date"). -2- 9. On or about March 29, 2001, and prior thereto, Plaintiffs, Norfolk Southern and PRR, owned a parcel of land situate in the Borough of Lemoyne, Cumberland County, Pennsylvania, containing approximately 275 square feet, more or less (hereinafter "Premises II") 10. Pursuant to the Lease agreement dated March 29, 2001, Plaintiff, Norfolk Southern, as Lessee and operator of the allocated assets of Pennsylvania Lines LLC, leased to Defendant, Bachert, the aforementioned Premises II to be used for the purpose of a pedestrian walkway, and for no other purpose, without the written consent of [Lessor]." A true and correct copy of the March 29, 2001, Lease (hereafter "Lease IT') is attached hereto as Exhibit "B" and made a part hereof. 11. Conrail conveyed all its legal right, title and interest in and to the subject Premises I and H to PRR pursuant to Quit Claim Deed dated as of August 17, 1999 (hereinafter the "Deed"), and effective as of June 1, 1999, which Deed was duly recorded in the Office of the Recorder of Deeds of Cumberland County, Pennsylvania, in Deed Book 209, pages 337-487, which was corrected by a Corrective Deed dated August 22, 2000, which Corrective Deed was duly recorded in the Office of the Recorder of Deeds of Cumberland County, Pennsylvania, in Deed Book 238, pages 590-601. The aforesaid Deeds are public records which are incorporated by reference as though more fully set forth herein. 12. Norfolk Southern exclusively leases, uses, possesses and operates the assets conveyed to PRR under the terms of the Operating Agreement between PRR and Norfolk Southern dated June 1, 1999 (hereinafter "Operating Agreement"), which assets include Premises I and Premises H. The Operating Agreement is filed with the Surface Transportation Board and as such is a public record which is incorporated by reference as though more fully set forth herein. -3- COUNTI EJECTMENT Norfolk Southern Railway Company and Pennsylvania Lines LLC v. Harrisburg Taxicab & Baggage Company and Courteous Rentals, Inc. 13. The averments ofParagraphs 1 through 12 above are incorporated herein by reference and made a part hereof. 14. Lease I provided for the payment of rent at the specified rate, payable in advance in equal quarterly amounts on the first day of December, March, June and September of each year. 15, The base rent payable as of March 1, 1998 for Lease I was in the annual amount of Two Thousand Four Hundred Dollars ($2,400.00), payable in quarterly installments of Six Hundred Dollars ($600.00) on the dates aforesaid. 16. Lease I, by paragraph 3.5 thereof, provided for increase adjustments to the base rent on an annual basis according to changes in the applicable Consumer Price Index compiled by the Bureau of Labor Statistics of the United States Department of Labor. 17. Lease I, by paragraph 3.2 thereof, provided that all other amounts, liabilities and obligations which tenant agrees to pay or cause to be paid pursuant to this Lease shall constitute rent payable hereunder ("Additional Rent"). 18. Lease I, by paragraph 3.4 thereof, provided that any rents or other sums payable as rent not paid within ten (10) days following the due date shall bear interest "at the rate of 1.5% per month (or at the legal maximum in the jurisdiction in which the Premises are located, whichever is greater) on the amount of any such Base Rent or Additional Rent unpaid." -4- 19. Plaintiffs, by paragraph 5.1 of Lease I, reserved the right to operate, maintain, repair, replace, augment or relocate its railroad facilities, which facilities were defined as the "Reserved Facilities" in the Lease. 20. Defendant, Harrisburg Taxicab, as Tenant expressly covenanted not to interfere with the maintenance or operation of the Reserved Facilities, orthe rights of any easement holders, lessees or licensees with respect thereto; to maintain prescribed clearances for all railroad tracks on or adjacent to the Premises; and to keep all such clearance areas free of any obstruction. (Lease I, ¶ 5.1). 21. Lease I, by paragraph 9 thereof, provided that Defendant, Harrisburg Taxicab, shall not: "(i) place any sign or advertising; (ii) or construct new improvements (including, without limitation, any underground storage tanks); or (iii) modify, alter, replace, remove any existing improvements on the Premises; or (iv) change the existing grade or topography of the Premises, without the prior consent of Landlord, in Landlord's sole discretion." 22. Defendant, Harrisburg Taxicab, by Paragraph 9 of Lease I, covenanted to completely remove all improvements made by it upon the Premises prior to the termination of the Lease; to restore the Premises to a condition satisfactory to Plaintiffs; and undertook to indemnify, defend and save harmless Plaintiffs from and against any claim or action by anypartybrought or asserted against Plaintiffs with respect to the retention, razing, or removal of any existing improvements or other property of the tenant on the Premises. -5- 23. Pursuant to paragraph 10 of Lease I, Defendant covenanted to, at its own cost and expense, "comply with all present and future laws, regulations and orders of all governmental authorities affecting the Premises ..." 24. Defendant, Harrisburg Taxicab, byParagraph 14 ofLease I, was required to maintain various insurance coverages, including but not limited to public liability insurance and all risk property insurance, which policies shall have landlord/plaintiffs named as additional insureds. 25. Defendant, Harrisburg Taxicab, has failed to pay the required rent due and payable for the period from September 1, 2002, to the present which non-payment of rent constitutes an act of default under the Lease. 26. Defendants, Harrisburg Taxicab and Bachert, have caused or permitted derelict taxicabs and other unregistered vehicles, boats, used tires, construction debris, fill, a wooden stairway and other improvements or items of personal property to accumulate on the Premises without the consent of the Plaintiffs, all of which is in violation of the terns of the Lease and constitutes a default under Lease I. The storage of derelict and unregistered vehicles, used tires, construction debris and fill on the Premises is in violation of local municipal ordinances and the lease requirement that the Defendants comply with applicable laws and regulations. 27. Defendants, Harrisburg Taxicab and Bachert, acting by and through their agents, servants and/or employees, have illegally encroached on other property owned and operated by Plaintiffs which is outside but adjacent to the demised Premises, including but not limited to the expansion of Defendants' paved parking lot adjacent to the main railroad tracks and within the railroad right-of-way and parking of taxicabs within the right-of-way; the placement of fill within -6- areas of the railroad right-of-way; and the placement of fill along the shore of the Susquehanna River for the purpose of creating an unauthorized access roadway over Plaintiffs' property serving Defendants' adjacent marina. 28. Defendants, Harrisburg Taxicab and Bachert, have constructed a paved driveway through the under-track stone arch storm drain in violation of the Lease terms and said Defendants have filled and used as a driveway a portion of lands along the riverfront which were never under lease to the Defendants by Plaintiffs. 29. Defendants, Harrisburg Taxicab and Bachert, have caused or permitted large volumes of fill to be deposited upon the demised Premises without the knowledge or consent of Plaintiffs, which fill has substantially altered the topography of the Premises and has created drainage runoff and erosion problems and will require regrading and appropriate erosion control remedies. 30. Plaintiffs gave Defendant, Harrisburg Taxicab, notice of the termination of the Lease by Notice of Termination dated March 28, 2003, effective thirty (30) days therefrom, and demanded that Defendant vacate the Premises and remove from the property all improvements owned orplaced thereon and to restore the Premises to its pre-lease condition. A true and correct copy of the Notice of Termination dated March 28, 2003, is attached hereto as Exhibit "C" and made a part hereof. 31. Plaintiffs gave Defendant, Harrisburg Taxicab, notice to vacate the Premises and to restore it to its pre-lease condition by Notice to Vacate dated November 19, 2003. A true and correct copy of the Notice to Vacate dated November 19, 2003, is attached hereto as Exhibit "D" and made a part hereof. -7- 32. Plaintiffs believe and therefore aver that Defendant, Courteous Rental, is a business corporation owned, operated and controlled byDefendant Bachert and that the business of Courteous Rental is being operated by Bachert on the demised Premises, including the operation, maintenance, repair and storage of vehicles used in said business. 33. Plaintiffs have made repeated demand that Defendants, Harrisburg Taxicab and Bachert, vacate the Premises and restore said Premises to its pre-lease condition and to pay the past due rent in the amount of $5,983.96, but said Defendants have failed and continue to fail to comply with said demands. 34. Plaintiffs have made repeated demand that Defendant, Courteous Rental, vacate the Premises and restore said Premises to its pre-lease condition and to pay the past due rent in the amount of $5,983.96, but Defendant has failed and continues to fail to comply with said demands WHEREFORE, Plaintiffs, Norfolk Southern Railway Company and Pennsylvania Lines LLC, demand that Defendants, Harrisburg Taxicab & Baggage Company, Clyde Bachert and Courteous Rental, Inc., be required to vacate the Premises and relinquish possession of the same to Plaintiffs without further trespass and to remove all of its personal property, including but not limited to any improvements constructed on the Premises. Alternatively, Plaintiffs request that this Honorable Court enter a judgment in favor of Plaintiffs and against Defendants, Harrisburg Taxicab & Baggage Company, Clyde Bachert and Courteous Rental, Inc., awarding Plaintiffs the cost of removing Defendants' personal property, including but not limited to improvements constructed thereon, from the Premises and restore the Premises to its original pre-lease condition. -8- COUNT II EJECTMENT Norfolk Southern Railway Company and Pennsylvania Lines LLC v. Clyde Bachert 35. The averments of Paragraphs 1 through 12 above are incorporated herein by reference and made a part hereof. 36. Lease fl provided for the payment of rent at the specified rate, payable in advance on an annual basis on the first day of April of each year. 37. The base rent for Lease 11 payable as of April 1, 2001, was in the annual amount of Two Hundred Dollars ($200.00). 38. Lease II, by Paragraph 3 thereof, provided that anyrents or other sums payable as rent not paid within thirty (30) days following the due date shall bear interest "in the amount of one and one-half percent of such rent for each month or portion thereof that the same shall remain unpaid. 39. Defendant, Bachert, covenanted under Article 14 of Lease II to "remove all improvements owned by or placed thereon by Lessee, and leave the Premises, including the subsurface, in as good order and condition as said Premises were prior to the use and occupation thereof by Lessee and free from holes, obstructions, debris, wastes, or contamination of any kind." 40. Pursuant to paragraph 8 of Lease 11, Defendant, Bachert, covenanted to "complywith the requirements of all federal, state and local safety, health, environmental, and sanitation laws, government regulations and ordinances...." -9- 41. Defendant, Bachert, has failed to paythe required rent due and payable for the period from April 1, 2002, to the present which non-payment of rent constitutes an act of default under the Lease. 42. Lease H gives the Plaintiffs the right to terminate the Lease Agreement upon appropriate advance written notice of intention to terminate, if the Lessee "shall default in the payment of rentals, or violate any other covenants herein ..." 43. Plaintiffs gave Defendant, Bachert, notice of the termination of the Lease by Notice of Termination dated March 28, 2003, effective thirty (30) days therefrom, and demanded that Defendant vacate the Premises and remove from the property all improvements owned or placed thereon and to restore the Premises to its pre-lease condition. A true and correct copy of the Notice of Termination dated March 28, 2003, is attached hereto as Exhibit "E" and made a part hereof. 44. Plaintiffs gave Defendant, Bachert, notice to vacate the Premises and to restore it to its pre-lease condition by Notice to Vacate dated November 19, 2003. A true and correct copy of the Notice to Vacate dated November 19, 2003, is attached hereto as Exhibit "D" and made a part hereof. 45. Plaintiffs have made repeated demand that Defendant, Bachert, vacate the Premises and restore it to its pre-lease condition and to pay the past due rent in the amount of $400.00, but Defendant has failed and continues to fail to comply with said demands. WHEREFORE, Plaintiffs, Norfolk Southern RailwayCompany and Pennsylvania Lines LLC, demand that Defendant, Clyde Bachert, be required to vacate the Premises and relinquish possession ofthe same to Plaintiffs without further trespass and to remove all of his personal property, including -10- but not limited to any improvements constructed on the Premises. Alternatively, Plaintiffs request that this Honorable Court enter a judgment in favor of Plaintiffs and against Defendant, Clyde Bachert, awarding Plaintiffs the cost of removing Defendant's personal property, including but not limited to improvements constructed thereon, from the Premises and restore the Premises to its original pre-lease condition. COUNT III MESNE PROFITS Norfolk Southern Railway Company and Pennsylvania Lines LLC v. Harrisburg Taxicab & Baggage Company 46. The averments ofparagraphs 1 through 31 above are incorporated herein by reference as though more fully set forth herein. 47. The aforementioned Property Lease provides that Defendant, Harrisburg Taxicab, shall remove all improvements and other property of Defendant, including but not limited to the derelict taxicabs, unregistered vehicles, boats, used tires, construction debris, fill, wooden stairway and any other things owned, or placed by or for Defendant on the Premises; to clean and restore the Premises to good order and condition; and upon termination, to deliver to Plaintiffs peaceable possession of the Premises in its pre-lease condition. 48. Lease I further provides that, upon failure of Defendant, Harrisburg Taxicab, to properly clear the Premises and restore it to a condition satisfactory to Plaintiffs, Plaintiffs may remove all of the Defendant's personal property, including but not limited to any structures and improvements and signs from the Premises at the sole cost and expense of the Defendant. -11- 49. Lease I has been properly terminated byNorfolk Southern according to its terms and due notice has been given to Defendants to vacate the Premises and to remove any and all personal property, equipment and structures from the Premises and to dispose of any environmentally sensitive materials in accordance with applicable laws and regulations. 50. Under the Lease, Defendant, Harrisburg Taxicab, agreed to indemnify Plaintiffs against any and all losses, damages costs, charges and expenses which Plaintiffs may incur from said Defendant's use, condition or occupancy of the demised premises. 51. Under Lease I, Plaintiffs are entitled to recover any costs and expenses, including reasonable attorneys' fees, in the event of Defendant's default in the payment of rent or any other condition or covenant of the Lease. WHEREFORE, Plaintiffs, Norfolk Southern Railway Companyand Pennsylvania Lines LLC, demand judgment in their favor and against Defendant, Harrisburg Taxicab & Baggage Company, for mesne profits, the cost of removing any of Defendant's personal property including but not limited to any structures and improvements, signs, unregistered vehicles and trash from the Premises, the cost of restoring the Premises and Plaintiffs' costs and expenses, including reasonable attorneys' fees associated with the bringing of this action. COUNT IV MESNE PROFITS Norfolk Southern Railway Company and Pennsylvania Lines LLC v. Clyde Bachert 52. The averments ofparagraphs 1 through 45 above are incorporated herein by reference as though more fully set forth herein. -12- 53. Lease H further provides that, upon failure of Defendant, Bachert, to properly clear the Premises and restore it to a condition satisfactory to Plaintiffs, Plaintiffs may remove all of the Defendant's personal property, including but not limited to any structures and improvements and signs from the Premises at the sole cost and expense of the Defendant. 54. Lease 11 has been properly terminated by Norfolk Southern according to its terms and due notice has been given to Defendant to vacate the Premises and to remove any and all personal property, equipment and structures from the Premises and to dispose of any environmentally sensitive materials in accordance with applicable laws and regulations. 55. Under the Lease, Defendant, Bachert, agreed to indemnify Plaintiffs against any and all losses, damages costs, charges and expenses which Plaintiffs may incur from said Defendant's use, condition or occupancy of the demised premises. 56. Under Lease 11, Plaintiffs are entitled to recover any costs and expenses, including reasonable attorneys' fees, in the event Defendant's default in the payment of rent or any other condition or covenant of the Lease. WHEREFORE, Plaintiffs, Norfolk Southern Railway Company and Pennsylvania Lines LLC, demand judgment in their favor and against Defendant, Clyde Bachert, for mesne profits, the cost of removing any of Defendant's personal property from the Premises, the cost of restoring the -13- premises, and Plaintiffs' costs and expenses including reasonable attorneys' fees associated with the bringing of this action. NAUMAN, SMITH, SHISSLER & HALL, LLP J. St hen Fervour, Esquire Supreme Court ID#24580 200 North Third Street, 18`h Floor P. O. Box 840 Harrisburg, PA 17108-0840 Phone: (717) 236-3010 Fax: (717) 234-1925 Attorneys for Plaintiffs, Norfolk Southern Railway Company and Pennsylvania Lines LLC Date: February 27, 2004 -14- FEB 27 2004 1554 FR NS ID HARRISBURG PR 717 541 2435 TO 92341925 P.02i02 YERInCA ZION 1, James N. Ahonen, Property Manager, of Norfolk Southern Railway Company, plaintiff in the foregoing proceeding, do make the following statement subject to the penalties of 18 Pa. C.S. §4904, relating to unworn falsifications to authority, and do state that as Property Manager for Norfolk Southern Railway Company, I am authorized to make this statemeot on behalf of Norfolk Southern, and that the facts set forth in the foregoing Complaint in Ejectment are true and correct to the best of my knowledge, information and belief. To the extent that the contents of the pleading are that of counsel, verifier has relied upon counsel in making this verification. A James N. Abonen Dated: February 27, 2004 ** TOTAL PAGE.02 ** 319 886 taxi,doc Landlord's Rent Account Number: 07-00852-2 c. -- PROPERTY LEASE THIS LEASE dated as of this 121h. day of November, 1997, between CONSOLIDATED RAIL CORPORATION, a Pennsylvania corporation, through its Regional Real Estate office, which has a mailing address at 2405 Park Drive, Suite 100, Harrisburg, PA 17110 ("Landlord"), and HARRISBURG TAXICAB & BAGGAGE COMPANY, a corporation of the Commonwealth of Pennsylvania, having a mailing address at 50 Market Street, Lemoyne, PA 17043 ("Tenant"). WITNESS ETH: The parties, intending to be legally bound, agree as follows: PREMISES Landlord hereby leases to Tenant the premises located at Market Street in the Borough of Lemoyne, Cumberland County, Pennsylvania, near Line Code 1325, Mile Post 83, as more fully described on Exhibit A (dated September 15, 1997) to this Lease (the "Premises"). 2. TERM Except as otherwise specifically set forth in this Lease, the tens of this Lease (the "Lease Term") shall commence on December 1, 1997 (the "Commencement Date') and shall end upon THIRTY (-30-) day's notice from either party (the "Expiration Dale"). RENT 3.1 Base Rent, Rent for the Premises ("Base Rent's shall be TWO THOUSAND FOUR HUNDRED Dollars ($2,400.00) per annum, payable Q$800.00 on or before the first day of each December, March, June, 8 September during the term of this lease, subject to increases as provided for in Section 3.5 hereof. Tenant shall send all Base Rent and Additional Rent with the Rent Account Number to P.O. Box 8500-4450, Philadelphia, PA 19178-4450, or to such other address as Landlord may Indicate by notice to Tenant. Landlord hereby acknowledges receipt from Tenant of E-0- as security for Tenant's performance of this Lease, which deposit shall be non-Interest bearing. 3.2 Additional Rent. All other amounts, liabilities and obligations which Tenant agrees to pay or cause to be paid pursuant to this Lease shall constitute rent payable hereunder ("Additional Rent") In addition to the Base Rent specified in Section 3.1. Tenant shall pay Landlord such Additional Rent within ten (10) days after receipt of invoices from Landlord, unless Landlord, in the case of taxes, directs payment be made to the taxing or assessing authority. 3.3 Payment of Rent. Tenant shall pay Base Rent and Additional Rent without prior demand, setoff, or counterclaim. Landlord may apply each payment of Base Rent or Additional Rent when received in such order as Landlord may determine, regardless of any rule, law, practice or custom between Landlord and Tenant. No payment shall operate as an accord and satisfaction, notwithstanding any statement or endorsement accompanying such payment. EXHIBIT A 3.4 Late Payments. If Tenant does not pay Base Rent or Additional Rent within a period of ten (10) days from the day same shall have been due and payable, then Tenant shall pay a service charge at the rate of 1.5% per month (or at the legal maximum in the jurisdiction in which the Premises are located, whichever is greater) on the amount of any such Base Rent or Additional Rent unpaid; provided, however, that such service charge shall, in no event, be less than $25.00 for any month or portion thereof. 3.5 Base Rent Increase. The rent provided in Section 3.1 as the current Base Rent shall be changed on an annual basis, by the same percentage increase as reflected in the "Consumer Price Index for Urban Wage Earners and Clerical Workers (CPI-W)(1967 = 100)" specified for "Ali Items - United Stales" compiled by the Bureau of Labor Statistics of the United States Department of Labor (the "Index"). In no event, however, shall the rent be less than the then applicable Base Rent. The current Base Rent payable shall be changed in accordance with the following: (i) The current Base Rent shall be adjusted annually, commencing December 1, 1998. (it) Each adjustment shall be made with reference to the price index for the fourth month immediately proceeding the effective date of each adjustment (Current Price Index). (iii) Each such adjustment shall be made by determining the percentage change of the then Current Price Index over the price index for the full calendar month of the effective date of this Lease ("Base Price Index"). (iv) Such percentage shall be computed by (1) obtaining the difference between the Current Price Index and the Base Price Index and (2) dividing such difference by the Base Price Index. (v) The percentage thus determined shall be multiplied by the then applicable current Base Rent hereinabove set forth, and the product thus determined shall represent the change payable in addition to the current Base Rent until a subsequent adjustment shall be made under this Section. In the event the Index shall hereafter be convened to a different standard reference base or otherwise revised, the determination of the percentage change shall be made with the use of such conversion factor, formula or table for convening the index as may be published by the Bureau of Labor Statistics or, if said Bureau shall not publish the same, then as shall be reasonably determined by Landlord. 4. USE Tenant shall use the Premises solely for parking, security, and beautification, and for no other purpose. RESERVED FACILITIES 5.1 Use of Reserved Facilities. Landlord may operate existing railroad and related transportation services on or adjacent to the Premises. Landlord reserves the right to operate, maintain, repair, replace, augment, or relocate (provided that said relocation or augmentation does not unreasonably interfere with Tenant's use of the Premises for the purposes set forth in Section 4) any Reserved Facilities existing within or adjacent to the Premises. This Lease is subject and subordinate to any right which Landlord or any easement holder, tenant, or licensee of Landlord may have in the Reserved Facilities. Tenant shall not Interfere with the maintenance or operation of the Reserved Facilities, or the lights of any easement holders, lessees, or licensees with respect thereto. Tenant shall maintain prescribed clearances for all railroad tracks on or adjacent to. the Premises. All such clearance areas shall be kept free of any obstruction. 5.2 Definition of Reserved Facilities. The term "Reserved Facilhies" shall mean any existing tracks, pipes, conduits, thoroughfares, roads, tunnels, electric communication and signal transmission lines and poles and guys for such lines, and any other facilities of similar nature on, above or below the ground, belonging to any party whomsoever. -2- 319 886 6. TAXES AND ASSESSMENTS Tenant shall pay all taxes (including without limitation, real estate, transfer, sales and use taxes), assessments (including without limitation, all assessments for public improvements or benefits, whether or not to be completed during the term of this Lease), water, sewer and other rents, rates and charges, excises, levies, license fees, permit fees, inspection fees and other charges (including all interest and penalties thereon) which at any time during the term of this Lease may be assessed, levied, confirmed or imposed against the Premises or against any improvements made by Tenant, or other property of Tenant, real or personal, located on the Premises. If the Premises are not taxed as a parcel but are taxed as part of a larger parcel, Tenant shall pay an equitable portion, as fixed by Landlord, of the taxes and the assessments upon the whole tract or parcel of which the Premises are a pan. Notwithstanding anything to the contrary set forth above, Tenant shall not be responsible for income, succession, transfer or franchise taxes Imposed against Landlord. UTILITIES Tenant, at its sole cost and expense (including fees for permits and similar documents) shall obtain all utility services required or desired by Tenant, including the installation of meters and submeters if none exist. Tenant shall be responsible for all charges for utilities consumed by, and supplied to, Tenant by the provider thereof. Tenant shall not obtain any utility service from any of Landlord's facilities without first obtaining the prior consent of Landlord. CONDITION OF PREMISES Tenant has fully inspected and accepts the Premises in "as is" condition as of the dale of this Lease. Landlord makes no representations or warranties with respect to the Premises including, without limitation, such matters as zoning, condition, utility, or fitness of the Premises or any Improvements thereon for any use. Except with respect to any Reserved Facilities, Tenant shall perform all maintenance (including without limitation, snow and ice removal) and repairs necessary to keep the Premises and any improvements now or hereafter existing thereon in good order and repair and in a safe condition. Landlord shall have no obligation whatsoever to maintain or repair the Premises or any Improvements. Nothing set forth in this Section shall be deemed to modify the apportionment of responsibility for Environmental Claims provided for in Section 13. Tenant shall provide notice to Landlord of any damage to the Premises of any nature. SIGNS AND IMPROVEMENTS Tenant shall not: (i) place any sign or advertising; (ii) or construct new Improvements (Including, without limitation, any underground storage tanks); or (iii) modify, alter, replace, remove any existing Improvements on the Premises; or (iv) change the existing grade or topography of the Premises, without the prior consent of Landlord, in Landlord's sole discretion. Tenant shall completely remove all Improvements made by Tenant upon the Premises prior to the termination of this Lease and restore the Premises to a condition satisfactory to Landlord. Tenant shall provide Landlord with a minimum of thirty (30) days prior notice when Tenant intends to remove any improvements in accordance with the previous sentence. If Tenant fails to completely remove such improvements and other property of Tenant and any other party (other than Landlord), Landlord may elect to retain such improvements or property, or enter the Premises and raze or remove same and Tenant hereby waives any claim or right of action with respect thereto. Tenant shall pay Landlord all Landlord's costs related to such razing or removal, including, without limitation, storage and transportation. Tenant shall Indemnity, defend and save harmless Landlord from and against any claim or action by any party brought or asserted against Landlord with respect to such retention, razing, or removal. 10. COMPLIANCE WITH LAW Except with respect to any Reserved Facilities, Tenant, at its own cost and expense, shall promptly comply with all present and future laws, regulations, and orders of all governmental authorities affecting the Premises (hereinafter collectively referred to as "Governmental Requirements' whether or not Landlord shall -3- 37.9 886 be responsible primarily for compliance with such Governmental Requirements. Notwithstanding the aforesaid, in the event that compliance with Governmental Requirements involves work on property other than the Premises, then Landlord shall equitably apportion the cost for such work to Tenant taking into account: (i) the extent that such work arises from the existence of this Lease; (ii) Tenant's use of the Premises; or (iii) the extent such work is related to the Premises. Tenant, at its sole cost and expense, shall be responsible for obtaining any permits or approvals required by reason of Tenant's use or occupancy of the Premises. Tenant shall immediately provide to Landlord copies of: (a) notices of any violations of Governmental Requirements concerning the Premises; and (b) any applications, submissions, plans, studies, or any data or information related to or associated with Tenant's compliance with Governmental Requirements, including without limitation, any permits. it. ASSIGNMENT AND SUBLETTING Tenant shall not assign, hypothecate, license or transfer any portion of Tenant's interest in this Lease or the Premises without the prior consent of Landlord, and any attempt to do so without such consent shall render same null and void. Tenant shall not permit any security interest in any third party to attach to the Premises or any pan thereof, or any improvements or personal property now or hereafter placed or kept thereon, without the prior consent of Landlord, and any attempt to do so without such consent so shall render same null and void. 12. LIABILITY 12.1 Apportionment of Liability. Except as provided in Section 13, responsibility for Claims (as defined in Section 12.4) as between the parties shall be bome as follows: (i) Landlord shall be responsible for Claims arising from Landlord's, and its directors', officers', employees', agents', contractors', or subsidiaries' negligence, and from Landlord's failure to comply with its obligations under this Lease when such failure is a contributing cause to such Claims; (ii) Tenant shall be responsible for Claims arising from Tenant's and its directors', officers', employees', agents', contractors', or subsidiaries' negligence, and from Tenant's failure to comply with its obligations under this Lease when such failure Is a contributing cause to such Claims; (iii) The parties shall share in proportion to their respective degree of responsibility for all Claims arising from their and their directors', officers', employees', agents', contractors', or subsidiaries' Joint or concurring negligence or failure to comply with their respective obligations under this Lease when any such failure is a contributing cause to such Claims. If Landlord is subjected to any Claims under the Federal Employers' Liability Act ("FELA") based on the allegation that Landlord failed with respect to the premises to provide a safe place to work or failed to correct or guard against an unsafe condition, the standards of neg- ligence and causality established by FELA shall be applied in determining whether such Claims arose from the individual, joint or concurring negligence of Tenant and its directors, officers, employees, agents, subsidiaries and contractors . (iv) Tenant shall be responsible for Claims arising from the presence on or use of the Premises by any trespassers, vandals or other unauthorized persons. 12.2 The negligence of any tenant, invitee, licensee or grantee of Tenant occurring on the Premises shall be deemed the negligence of Tenant. For the purposes of this Section 12, Landlord shall not be considered to be a tenant, invftee, licensee or grantee of Tenant. 12.3 Indemnification and Waiver. Except as otherwise provided in Section 12.1 Oil), the party which Is responsible for any Claim shall release the other party from all responsibility for such Claims and shall defend, indemnify, protect, and save harmless the other party from and against all such Claims. Landlord and Tenant waive any constitutional, statutory or decisional Immunity which would invalidate Landlord's or Tenant's obligation to indemnify the other party with respect to Claims asserted by employees of Landlord or Tenant. -4- 31.9 886 12.4 Definition of Claims. The word "Claims" as used in this Section 12 shall mean all claims, liabilities, demands, actions at law and equity, judgments, settlements, losses, damages, and expenses of every character (including without limitation, attorneys' fees) for any injury to or death of any person or persons, and for any damage to or loss or destruction of property of any kind caused by, arising out of, or occurring in connection with this Lease or incidental or appertaining thereto. Except as may otherwise be specifically set forth in this Lease, neither party shall be liable for consequential damages under this Lease. 13. ENVIRONMENTAL 13.1 Apportionment of Responsibility. Notwithstanding the provisions of Section 10, Responsibility for Environmental Claims (as defined in Section 13.4) as between the parties shall be home as follows: (i) Landlord shall be responsible for Environmental Claims arising from: (a) environmental conditions existing on the Premises prior to the date of this Lease; or (b) use of the Premises or adjoining property by Landlord, and its employees, agents, contractors, or subsidiaries from and after the date of this Lease pursuant to Section 5 unless such Environmental Claims arise from Tenant's negligence or failure to comply with its obligations under this Lease, in which event Tenant shall be liable as set forth in Sections 13.1 (it) or 13.1(111); or (c) Landlord's failure, or that of Its directors, officers, employees, agents, licensees or contractors, to comply with its obligations under this Lease when such failure is a contributing cause to such Environmental Claims. (ii) Tenant shall be responsible for Environmental Claims arising from: (a) the use of or presence upon the Premises or adjoining property by Tenant and its employees, agents, contractors, subsidiaries, or any unauthorized third party; or (b) Tenant's failure, or that of its directors, officers, employees, agents, licensees, contractors, subsidiaries, to comply with Tenant's obligations under this Lease when such failure is a contributing cause to such Environmental Claims. (iii) The parties hereto shall bear in proportion to their respective degree of responsibility for Environmental Claims arising from the joint responsibility of Landlord and Tenant as set forth in Sections 13.1(i) and 13.1(ii). 13.2 Indemnification. Except as Otherwise provided in Section 13.1 (iii), the party which is responsible shall release the other party from all responsibility for such Environmental Claims and shall defend, Indemnify, protect and save harmless the other party from and against all such Environmental Claims. Neither party shall be liable to the other party for consequential damages. 13.3 Environmental Remediation (i) Remediation. Tenant shall immediately notify Landlord of any Release or threat of Release of any Hazardous Substances on or under the Premises, or any notice by any governmental entity with respect to a Release or threat of Release of any Hazardous Substances. Tenant shall permit Landlord and its contractors full, unrestricted and unconditional access to the Premises for the purpose of monitoring any Remediation conducted by Tenant, completing or engaging in a Remediation for which Landlord has any responsibility, or at Landlord's option, completing any Remediation for which Tenant is responsible pursuant to Sections 13.1(11) or 13.1(iii) should Tenant fall to diligently pursue and complete such Remediation to the satisfaction of Landlord. Landlord's completion of any of Tenant's obligations hereunder shall not be deemed a waiver of Tenant's obligations under this Lease. Tenant shall immediately provide Landlord with all analytical data, quality assurance data, quality control data, field notes, reports, correspondence pncluding without limitation, any correspondence with any governmental entities), and any other related documents concerning any Remediation conducted by Tenant, Including any final reports. Landlord shall have the right to review and approve any site investigation or any Remediation conducted by Tenant prior to its implementation. Landlord shall have the right to be present at any meetings with any governmental entity or representative thereof regarding any Remediation conducted by Tenant. Tenant shall perform any Remediation and environmental -5- 0 1 :7 00 v work required of it under this Lease with due diligence and in a good and workmanlike manner and Landlord shall have the right to accept all such work. Tenant shall reimburse Landlord for all costs and expenses incurred by Landlord in reviewing and monitoring any Remediation which is Tenant's responsibility under this Lease. (ii) Base Rent Abatement. In the event any Remediation is required, Tenant shall not be entitled to any damages, actual or consequential, by reason of the Remediation's interference with Tenant's use of the Premises or damage to Tenant's property. If any Remediation results in a portion of the Premises being rendered unusable by Tenant for the purposes set forth in Section 4 for a period in excess of five (5) consecutive days, the Base Rent shall be reduced pro rata to reflect the area of the Premises rendered unusable; however, there shall be no abatement in the Base Rent for any interference with Tenant's use of the Premises due to a Remediation for which Tenant is either partially or wholly responsible pursuant to Sections 13.1(ii) or 13.1(iii). 13.4 Definition of "Environmental Claims', 'Hazardous Substances", "Release", and "Remediation". The term "Environmental Claims" shall mean any cleanup, response, removal or remediation required by law including any Remediation ordered or required by a governmental entity related to the presence of any Hazardous Substances on the Premises or migrating therefrom affecting the air, soil, surface waters, ground waters, streams, sediments and similar environmental conditions caused by, resulting from, arising out of, or occurring in connection with this Lease. The term "Hazardous Substances" shall mean (a) any oil, flammable substance, explosives, radioactive materials, hazardous waste or substances, toxic waste or substances or other waste materials, substances or pollutants which Q) pose a hazard to the Property or to persons on or about the Property or (if) cause the Property to be in violation of any applicable law, ordinance or governmental regulation; (b) asbestos in any form which is or could become friable, urea formaldehyde foam insulation, transformers or equipment which contain dielectric fluid containing levels of polychlorinated biphenyls or radon gas; (c) any chemical, material or substance defined as or Included in the definition of 'hazardous substances", "hazardous waste", 'hazardous materials", "extremely hazardous waste", "restrictive hazardous waste" or "toxic substances" or word of similar import by any agency or court or under any applicable local, state or federal law or under the regulations adopted or publications promulgated pursuant thereto and including but not limited to the Comprehensive Environmental Response Compensation and Liability Act , 42 U.S.C. §§ 9601, at seq., as amended; the Resource Conservation and Recovery Act, 42 U.S.C. §§ 6901, et seq., as amended; the Hazardous Materials Transportation Act, 42 U.S.C. §§ 1801, at seq. and the Federal Water Pollution Control Act, 32 U.S.C. §§ 1251, et seq.; (d) any other material or substance exposure to which is prohibited, limited or regulated by governmental authority or which may or could pose a hazard to the health and Safety of the occupants of the Property or the owners or occupants of property adjacent to or surrounding the Property or any person coming upon the Property; and (e) any other chemical, materials or substance which may or could pose a hazard to the environment. The term "Release" shall have the meaning set forth In 42 U.S.C. Section 9601. The term "Remediation" shall mean any cleanup, response, removal mitigation, abatement, elimination or control of any Hazardous Substances as required by a governmental entity or law or the terms of this Lease. 13.5 Tenant shall not disclose, or permit to be disclosed or published, except as required by law, any reports concerning data or other information relating to or arising out of any environmental studies of the Premises without the prior consent of Landlord. 14. INSURANCE 14.1 Tenant shall at all times during term of this Lease and any extensions thereof, maintain, at its own cost and expense Insurance of the following types and amounts. (i) Workers' Compensation insurance in statutory amounts. Employer's Liability insurance with limits of at least $1,000,000 each accident, $1,000,000 each employee and $1,000,000 policy limit. (ii) Automobile Liability Insurance with a limit of not less than $5,000,000 combined single limit, bodily injury and/or property damage per occurrence. -6- 319 88h (iii) Public Liability insurance, including contractual liability insurance, with a limit of not less than $5,000,000 combined single limit, bodily injury and/or property damage arising out of bodily injuries to or death of all persons in any one occurrence and for damage to or destruction of property, including the loss of use thereof, in any one occurrence. In addition, said public liability policy shall also contain a separate sublimit for fire damage of at least $500,000 for any one fire. (iv) All Risk Property insurance covering (a) any building or other improvements leased to Tenant, and (b) personal property owned by Tenant, property in Tenant's care, custody and control, as well as leasehold improvements made by Tenant, in any amount not less than 100% of the full replacement cost thereof. Such insurance shall contain a waiver of subrogation against Landlord and shall name Landlord as Loss Payee as its interests may appear. 14.2 Any Tenant's insurance with respect to this Lease and/or the Premises, or on the property of the Tenant, or in Tenant's care, custody and control, shall contain a waiver of subrogation against Landlord. 14.3 The insurance coverages set forth in this Section shall be enforceable by any legitimate claimant after the termination of this Lease, so long as the basis of the claim against the insurance company occurred during the periods of time for which such insurance was obtained. 14.4 Tenant shall furnish Landlord certificates evidencing the Insurance required by this Section prior to the commencement of this Lease. Landlord shall be named as additional Insured on all such policies. 14.5 All insurance obtained pursuant to this Lease shall be endorsed to provide that the insurance company shall give thirty (30) days prior written notice to Landlord if such policies are to be terminated or modified in any respect. All insurance obtained pursuant to this Section shall be effected under standard form policies issued by insurers of financial responsibility which are rated "A" or better by either "Bests Insurance Reports", "Standard 8 Pools Insurance Rating Service" or "Moodys Investor Service". 14.6 If requested by Landlord, Tenant shall furnish additional Insurance coverage against such other hazards as Landlord may require. The providing of any Insurance pursuant to this Lease shall not be deemed a limitation on the liability of Tenant as provided in this Lease, but shall be additional security therefor. 14.7 In the event of any substantial (of which fact Landlord shall be the sole judge) loss, damage to, or destruction of the Premises (if the Premises consist of a building or other similar improvements owned by Landlord), or any major system thereof, by any cause whatsoever, Landlord shall have the option, within thirty (30) days from the date thereof, of terminating this Lease by notice to Tenant, or, in the alternative, of requiring Tenant to repair such loss, damage, or destruction. If Landlord elects to terminate this Lease, such termination date shall be set forth In the notice from Landlord as aforesaid and Tenant shall forthwith endorse all insurance proceeds to Landlord. In the event Landlord elects to have Tenant repair such loss, damage or destruction, Tenant shall, within thirty (30) days of the dale of Landlord's notice as aforesaid. submit plans to Landlord for Its approval prior to the commencement of any repair work. If Landlord elects to have such loss, damage or destruction repaired, and if the Premises shall have been rendered wholly untenantable by reason thereof, Base Rent shall abate from the date of such loss, damage or destruction until the date of completion of repairs. In the event the Premises are rendered only partially untenantable by such loss, damage or destruction, Base Rent shall continue in full force and effect for that portion of the Premises which remain tenantable, and Tenant shall proceed to repair the Premises after submitting plans to Landlord for its approval within thirty (30) days following such loss, damage or destruction. Upon approval by Landlord of Tenant's repair plans, Tenant shall proceed immediately to commence such repairs and to diligently and continuously make same until completed at the earliest practicable date. In the event of a termination of this Lease by Landlord as aforesaid, all rent shall end as of the date of such loss, damage, or destruction, and any Base Rent paid beyond such dale shall be refunded on a pro-rata basis to Tenant. Notwithstanding anything to the contrary set forth above, no loss, damage to or destruction of the Premises, either in whole or In part, shall relieve Tenant from Its obligation to pay any Additional Rent due and payable on the Premises. -7- 319 886 15. CONDEMNATION If all or any part of the Premises shall be acquired or taken under eminent domain proceedings, or transferred to a public authority in lieu of such proceedings, Landlord may terminate this Lease as of the date when possession is taken. All damages awarded for such taking shall belong to and be the property of Landlord. Tenant shall have no claim against Landlord by reason of such taking or termination and shall not have any claim or right to any portion of the amount that may be awarded or paid to Landlord as a result of any such taking. Tenant may, however, make claims against the condemning authority for moving expenses, loss of fixtures, or other matters which do not affect the award otherwise payable to Landlord so long as such claim does not reduce the award otherwise payable to landlord. 16. DEFAULTS AND REMEDIES; WAIVER OF REDEMPTION 16.1 Events of Defaults. If during the term of this Lease or any renewals thereto, any one or more of the following acts or occurrences (any one of such occurrences or acts being hereinafter called an 'Event of Default") shall happen: (i) Tenant shall fail to make the payment of any installment of Base Rent or Additional Rent or default in any other way curable by the payment of money, as and when the same shall be due and payable, and such failure shall continue for a period of five (5) days after notice thereof from Landlord to Tenant; or (ii) If Tenant assigns this Lease or sublets the Premises without Landlord's consent as provided in Section 11; or (iii) Tenant shall file a voluntary petition in bankruptcy or shall be adjudicated bankrupt or insolvent, or shall file any petition or answer seeking any reorganization, composition, readjustment, liquidation, dissolution or similar relief under any present or future bankruptcy or other applicable law, or make an assignment for the benefit of its creditors, or shall seek or consent to or acquiesce in the appointment of any trustee, receiver, custodian or liquidator of Tenant or of all or any substantial portion of Its assets; or (iv) If within sixty (60) days after the filing of an involuntary petition in bankruptcy against Tenant or the commencement of any proceeding against Tenant seeking any reorganization, composition, readjustment, liquidation, dissolution or similar relief under any present or future bankruptcy or other applicable law, such proceeding shall not have been dismissed; or if, within sixty (60) days after the appointment (without the consent or acquiescence of Tenant) of any trustee, receiver, custodian or liquidator of Tenant, or of all or any substantial part of the properties of Tenant or of all or any part of the Premises, such appointment shall not have been vacated or stayed on appeal or otherwise discharged; or if, within sixty (60) days after the expiration of any such stay, such appointment shall not have been vacated; or If within sixty (60) days after the taking of possession (without the consent or acquiescence of Tenant) of the property of Tenant by any governmental office or agency pursuant to statutory authority for the dissolution or liquidation of Tenant, such taking shall not have been vacated or stayed on appeal or otherwise discharged; or (v) Tenant shall fail in the strict observance or performance of or compliance with any of the other covenants, agreements, terms or conditions of this Lease to be observed or performed by Tenant (other than any Event of Default specifically described In this Section 16.1), and such failure shall continue for a period of fifteen (15) days after notice thereof from Landlord to Tenant (except for an Event of Default as set forth in Sections 16.1 (111). (v) and (vi), for which Landlord will not be required to give Tenant any notice and may exercise its remedies as set forth in Section 1T) or, In the case of a failure which, with due diligence, cannot be cured within fifteen (15) days, Tenant shall fail to commence within said period of fifteen (15) days, or shall fail to thereafter diligently prosecute to completion, all steps necessary to remedy such default (it being intended that as to a default not susceptible of being cured with due diligence within fifteen (15) days, the time within which such default may be cured shall be extended for such period as may be reasonably necessary to permit the same to be cured with all due diligence which shall not exceed sixty (60) days); or -8- 3 1 9 886 (vi) Tenant abandons or vacates the Premises or removes or attempts to remove any or all of Tenant's property from the Premises other than in the ordinary and usual course of business; then, upon the occurrence of any one or more of such Events of Default, Landlord may exercise the rights set forth in Section 17 of this Lease or otherwise provided at law or in equity. 16.2 Notwithstanding any provisions of this Lease permitting Tenant to cure an Event of Default, if an Event of Default (regardless of type) occurs more than two (2) limes within any twelve (12) month period, then, notwithstanding that each such Event of Default shall have been cured. upon any further occurrence of any subsequent Event of Default within said twelve (12) month period. Landlord may exercise the remedies provided herein or at law or in equity upon giving notice as provided in Section 17.1 of this Lease without affording Tenant an opportunity to cure such Event of Default. 17. LANDLORD'S RIGHTS UPON TENANT'S DEFAULT 17.1 If any Event of Default occurs, Landlord may, in addition to any other remedies Landlord may have hereunder or at law or in equity, by notice to Tenant, designate a date, not less than five (5) days after the giving of such notice, on which this Lease shall terminate; and thereupon, on such date the lease term and the estate hereby granted shall expire and terminate with the same force and effect as if the date specified in such notice was the Expiration Date and all rights of Tenant hereunder shall terminate, but Tenant shell remain liable as provided in this Lease. 17.2 If this Lease is terminated as provided in Section 17.1, or as permitted by law, Tenant shall peaceably quit and surrender the Premises to Landlord, and Landlord, without further notice, may enter upon, re-enter, possess and repossess the same by summary proceedings, ejectment or other legal proceeding, and in any such event neither Tenant nor any person claiming through or under Tenant by virtue of any law or an order of any court shall be entitled to possession or to remain in possession of the Premises but shall forthwith quit and surrender the Premises. Landlord at Its option shall, notwithstanding any other provision of this Lease, be entitled to recover from Tenant as and for damages either. (i) an amount equal to the Present Value of all Base Rent and Additional Rent (conclusively presuming the Additional Rent to be the same as was payable for the calendar year immediately preceding such termination) reserved hereunder for the unexpired portion of the lease tens, less an amount equal to the Present Value of the reasonable rental value of the Premises or portion thereof for the balance of the lease lens after deducting from said rental value all costs and expenses which Landlord would incur in connection with the termination of this Lease and the reletting of the Premises or portion thereof (including, but not limited to, brokerage commissions, tenant improvement costs, attorneys' fees and disbursements, rent concessions and all other related costs and expenses); or (it) amounts equal to the Base Rent and Additional Rent (as presumed above) which would have been payable by Tenant had this Lease not been terminated, or had Landlord not re-entered the Premises, payable on the date that such payments would have otherwise been payable following such termination and until the Expiration Dale. Landlord shall attempt to relet the Premises. However, if Landlord shall relet the Premises during said period, Landlord shall credit Tenant with the net rents received by Landlord from such reletting, such net rents to be determined by first deducting from the gross rents as and when received by Landlord, the costs and expenses Inured or paid by Landlord from such reletting, Including without limitation, expenses Incurred or paid by Landlord In terminating this Lease or in re-entering the Promises and in securing possession thereof, as well as the expenses of retailing (Includng aftering and preparing the Premises for new tenants and brokers' commissions). It Is understood that any such reletting may be for a period shorter or longer than the remaining lease term, but in no event shall Tenant be entitled to receive any excess of such net rents over the sums payable by Tenant to Landlord hereunder, nor shall Tenant be entitled in any suit for the collection of damages pursuant to this Subsection to a credit with respect of any net rents from a reletting, except to the extent that such net rents are actually received by Landlord. Suit or -9- 11119 886 suits for the recovery of such damages, or any installments of such damages, may be brought by Landlord from time to time at its election, and nothing contained herein shall be deemed to require Landlord to postpone suit until the date when the term of this Lease would have expired if it had not been so terminated under the provisions of Section 17.1, or under any provision of law, or had Landlord not re-entered the Premises. 17.3 Nothing herein contained shall be construed to limit or preclude recovery by Landlord against Tenant of any sums or damages to which, in addition to the damages particularly provided above, Landlord may lawfully be entitled by reason of any default hereunder on the pan of Tenant. Tenant shall be responsible for all consequential damages to Landlord as a result of Tenant's failure to surrender the Premises in accordance with this Lease. Nothing set forth herein shall limit or prejudice the right of Landlord, in any bankruptcy or reorganization or insolvency proceeding, to prove for and obtain as damages by reason of such termination an amount equal to the maximum allowed by any bankruptcy or reorganization or insolvency pro- ceedings, or to obtain as damages by reason of such termination, an amount equal to the maximum allowed by any statute or rule of law whether such amount shall be greater, equal to, or less than any of the sums referred to in Section 17.2. 17.4 Landlord may retain, as a credit against the damages herein provided for, any Base Rent or Additional Rent or monies received by it from Tenant or others on behalf of Tenant. 17.5 In the event Tenant has not removed Its personalty and any improvements after the expiration or earlier termination of this Lease, Landlord shall have the right without liability to Tenant, as agent for Tenant, to take possession of such personalty and Improvements and, at Landlord's option, use or sell (in a commercially reasonable manner) the same at any private or public sale and apply the proceeds to any amount due Land- lord. Tenant waives any right to notice of execution or levy in connection therewith. 17.6 If Tenant shall default in the keeping, observance or performance of any covenant, agreement, term, provision or condition herein contained beyond any applicable cure period, Landlord, without thereby waiving such default, may perform the same for the account and at the expense of Tenant (a) immediately or at any time thereafter and without notice in the case of emergency or if such default will result in a violation of any law, rule or regulation of any governmental authority or any insurance policy maintained by Landlord, or (b) in any other case if such default continues for a period of fifteen (15) days after the Landlord's notice to Tenant of Landlord's intention to perform the same. All costs and expenses incurred by Landlord in connection with any such performance by it for the account of Tenant and also all costs and expenses, including, without limitation attorneys' fees incurred by Landlord in any action or proceeding (including any summary dispossess proceeding) brought by Landlord to enforce any obligation of Tenant under this Lease and/or right of Landlord in or to the Premises, shall be paid by Tenant to Landlord, as Additional Rent. 17.7 For the purpose of this Section, "Present Value" shall be calculated using the "prime rate" of interest in effect at the Chase Manhattan Bank, N.A., New York, New York (or if said bank no longer publishes such rate, such other rate charged by another bank reasonably selected by Landlord), on the date of the termination of the Lease. 17.8 For the purposes of any suit brought by Landlord, this Lease shall be construed to be a divisible contract, to the and that successive actions may be maintained on this Lease as successive periodic sums mature hereunder. 18. INABILITY TO PERFORM Tenant's liability for all Base Rent, Additional Rem and all other covenants, obligations and conditions of this Lease shall not be affected or reduced by the failure of Landlord to perform any of Us obligations under this Lease or to supply any service, whether specifically required herein or not. 40. 319 888 19. WAIVER The waiver by Landlord of any breach of any term, covenant, obligation or condition herein contained shall not be deemed to be a waiver of any subsequent breach of the same or a waiver of any other term, covenant, obligation or condition herein contained. The subsequent acceptance by Landlord of any Base Rent or Additional Rent due hereunder or any or all other monetary obligations of Tenant hereunder, whether or not denoted as Base Rent or Additional Rent hereunder, shall not be deemed to be a waiver of any preceding breach by Tenant, of any tens, covenant, obligation or condition of this Lease, other than the failure of Tenant to make the particular payment so accepted, regardless of Landlord's knowledge of such preceding breach at the time of acceptance of such rent. No covenant, tern, obligation or condition of this Lease shall be deemed to have been waived by Landlord, unless such waiver is in a notice to Tenant executed by Landlord. 20. NOTICES Every notice, approval, consent, or other communication desired or required under this Lease shall be effective only if the same shall be In writing and sent postage prepaid by overnight courier or United States registered or certified mail (or a similar mail service available at the time), directed to the other party at its address first set forth in this Lease, or such other address as either party may designate by notice given from time to time in accordance with this Section. Notice shall be deemed received upon the earlier to occur of actual receipt or three (3) days after deposit. 21. SUCCESSORS The covenants and agreements herein contained shall inure to the benefit of and be binding upon the successors, heirs, personal representatives, and assigns of the parties hereto, subject, however, to the provisions of Section 12 of this Lease. 22. QUIET ENJOYMENT Nothing herein contained shall imply or Import a covenant on the part of Landlord for quiet enjoyment 23. ENTIRE AGREEMENT The entire agreement between Landlord and Tenant is set forth in this Lease and there are no understandings, agreements, or representations of any kind between the parties, verbal or otherwise, other than as set forth in this Lease. No change or modification of any of the covenants, terms or provisions hereof shall be valid unless in writing and signed by the parties hereto. 24. HEADINGS The heading of each section and subsection of this Lease are for convenience only and It shall not affect any construction or interpretation of this Lease. 25. RIGHT TO INSPECT AND EXHIBIT Landlord shall have the right to enter the Premises at reasonable hours in the day or night to examine and inspect the Premises, make such repairs, additions or alterations as it may deem necessary for the safety, preservation or restoration of the Premises and the improvements, if any, located thereon (there being no obligation, however, on the part of Landlord to make any such Inspections, repairs, additions or alterations), or to exhibit the Premises to prospective purchasers and Tenants for three (3) months prior to the expiration of the Lease Term. 41- 3) 9 88 6 26. LIENS Tenant shall provide to Landlord, prior to the commencement of any construction, repair or rebuilding of the Premises, or any part thereof, original copies of waivers executed by every contractor, subcontractor, and materialman associated with such construction, repair or rebuilding waiving any right to file a mechanics or materialmans lien on the Premises. Tenant, not later than thirty (30) days following the filing thereof against the Premises, shall remove any charge, lien, security interest or encumbrance upon the Premises, or any part thereof, which arises for any reason (other than by Landlord's actions). Notice is hereby given that Landlord has not consented to, nor shall it be liable for, any labor, services or materials furnished or to be furnished to Tenant, or to anyone holding the Premises or any part thereof through or under Tenant, and that no mechanic's or other liens (or any such labor, services or materials shall attach to or affect the interest of Landlord In and to the Premises or any part thereof. 27. RECORDING Tenant shall not record this Lease without the prior consent of Landlord. 28. JOINT AND SEVERAL LIABILITY If two or more individuals, corporations, partnerships or other business associations (or any combination of two more thereof) shall sign this Lease as Tenant, the liability of each individual, corporation, partnership or other business association to perform all covenants, obligations or conditions hereunder shall be deemed to be joint and several, and all notices, payments and agreements given or made by, with or to any one of such individuals, corporations, partnerships or other business associations shall be deemed to have been given or made by, with or to all of them. In like manner, if Tenant shall be a partnership or other business association, the members which are, by virtue of state or federal law, subject to personal liability, the liability of each such member shall be joint and several. 29. PARTIAL INVALIDITY; SEPARATE COVENANTS A determination that any term, covenant, obligation or condition of this Lease is invalid or unenforceable to any extent shall not affect the validity or enforceability of any other part of this Lease. 30. BROKERAGE COMMISSION Tenant represents and warrants to Landlord that Tenant has had no dealings, negotiations or consultations with respect to the Premises or this transaction with any broker or finder, and that no broker or finder called the Premises to Tenant's attention for lease, In the event any broker or finder claims to have submitted the Premises, or to have taken part In any dealings. negotiations or consultations with respect to the Premises or this transaction, then Tenant shall be responsible for and will defend, Indemnify and save Landlord harmless from and against all costs, fees (Including without limitation attomeys' fees), expenses, liabilities and claims incurred or suffered by Landlord as a result thereof. 31. HOLDING OVER Should Tenant hold over in possession of the Premises or any portion thereof after the expiration of the term of this Lease or sooner termination as provided by this Lease without the execution of a new lease agreement or renewal agreement, Tenant, at the option of landlord, shall be deemed to be occupying the entire Premises from month to month, subject to such occupancy being terminated by either party upon thirty (30) days notice to the other party, at a monthly rental equal to 200% of Base Rent due for the month immediately preceding the termination of this Lease, and otherwise subject to all the other terms, covenants, obligations and conditions of this Lease insofar as the same may be applicable to a month to month tenancy, including the payment of all Additional Rent as defined in this Lease. The acceptance of rent by Landlord shall -12- ;3 19 68b not be evidence that Landlord has exercised its option to treat Tenant as a holdover tenant pursuant to the option set forth above. 32. THIRD PARTY BENEFICIARY Nothing contained in this Lease shall be construed as to confer upon any other party the rights of a third party beneficiary. 33. APPLICABLE LAW This Lease shall be governed by the laws of the State in which the Premises are located. 34. SURVIVAL Any covenant, obligation or liability which arose, may have arisen or was incurred by either party hereto prior to the termination of this Lease shall survive the termination of this Lease. 35. AUTHORITY If Tenant is a partnership or corporation, Tenant represents and warrants to Landlord that it is duly formed and in good standing, and has full corporate or partnership power and authority, as the case may be, to enter into this Lease and has taken all corporate or partnership action, as the case may be, necessary to carry out the transaction contemplated herein, so that when executed, this Lease constitutes a valid and binding obligation enforceable in accordance with its terms. Tenant shall provide Landlord with corporate resolutions or other proof in a form acceptable to Landlord, authorizing the execution of the Lease at the time of such execution. 36. ADDITIONAL PROVISIONS, EXHIBITS AND ADDENDA The provisions typed on this page and any exhibit or addendum to this Lease shall be deemed a pad hereof. ? Lessee shall, at its sole cost and expense, erect and maintain bumper blocks, fencing, or other suitable barrier along the lease line parallel to the operating railroad tracks, sufficient to prevent any encroachment closer than 25' from the nearest track. ? No unregistered, derelict, or irrepalrable vehicles shall be stored on the Premises. ? No tires are to be stored on the Premises. ? To partially compensate Tenant for initial site cleanup and preparation, rental for the period three months from December 1, 1997 shall be waived. ? This lease is made under and subject to existing driveway easement rights held by Michael L. Martin (d.b.a. "MMI Racing Components"). ? Landlord shall except and reserve the right to separately license an existing signboard situate on the Premises, advertising the location of "MMI Racing Components". Landlord shall be entitled to retain any and all revenues derived therefrom. -13- 319 886 IN WITNESS WHEREOF, the parties have executed this Lease as of the dale first set forth above. WITNESS: CONSOLIDATED R IL CORPORATION (LANDLORD) By:? Airvrl Title: fir.'Pr,7per} I'1%??n,? r WITNESS (ATTEST IF CORP.): HARRISBURG TAXICAB & BAGGAGE COMPANY -? (TENANT) By: 4' U` - Title: PS y . ? pIN ; . t I I I I I I I I11?\\?:':=':: -14- riu ::t'F dt r °o H FN? V `? W 4i 't\ ? 5 \\ ?•i? ti?x •?5. ?°. {: : ? ? per. 0 0 0 ?Su ?4?? -. II Ptx_ J.J wr :r r t ?i ? l1 7f11?Yt?l, ??>?k u:: i:c I e r f ?,y f.. r9y { J .,.; J tax?;-? Y_ , bi5 7d BI e-i I I 4 ,f I ? i t 16? ` 1 ?01 f'q\j ? 31 1 3 P t f y W y ?' ? 08fi .B6£f F? ' ? ? J d aj?soErs, i 1 ? :r r dbylff6(Y tl '?? ? r I , .. J... 3 ` P`R4?`e A? R n . o re 9 tl Js J i ', . r v`v SOUTHERN _..... .._._,.^_., ,...-. LEASE Page 1 of 2 THIS LEASE, made and entered into this 29th. day of March, 2001 :?tatt;xxxK-, by and betwe Norfolk Southern Railway Company* (hereinafter styled "Company"), a VA corporation, e Clyde Bachert (hereinafter styled "Lessee"), rat *as lessee & operator of the yy? N E S SETH: allocated assets of Pennsylvania Lines L The parties hereto hereby agree as follows: ARTICLE 1. Company, insofar as its right, title, and interest enable it so to do, and without warranty, and in consideration of the covenants of Lessee, hereby grant unto Lessee the right to occupy and use for the purpose hereinafter mentioned: The property at Lemoyne, Cumberland County, Penna. having an area of 275sq.ft. , more less, the location of which is substantially as shown on the print dated 3-29-01 attach hereto and made a part hereof as "Exhibit A" (hereinafter "Premises"). Company reserves unto itself, and its permittees, the right to maintain, operate, renew and reconstruct upon, under, c over the Premises any existing pipe, electric transmission, telephone, telegraph, signal lines, or any other facilities of like character. Lessee agrees that its occupation and use of the Premises is subject to any or all such rights and use and to such rights as the owners or users.thereof may have to use any road or highway, or portion thereof, which m: be located upon or which may traverse the Premises. ARTICLE 2. Lessee will use the Premises for the purpose of a pedestrian walkway and for no other purpose without the written consent of Company. The Lessee may not assign this Lease or subleas all or any part of the Premises without the prior written consent of Company, nor shall Lessee, except with such writ consent, permit the Premises to be used for any other purpose by any other party, firm or corporation. ARTICLE 3. Lessee will pay unto Company as rent the sum of TWO HUNDRED bOLLA ($ 00.00 ) per annum, payable in advance, beginning as of the 1st. day of April, 2001 lgtxxxxxx]S which is the effective date hereof. If Lessee shall default in the payment of rental hereunder for a periot of 30 days after the same shall be due, a late payment charge in the amount of one and one-half percent of such re for each month or portion thereof that the same shall remain unpaid shall be charged to Lessee. Lessee will pay suc late payment charge together with all rental then due hereunder. ARTICLE 4. Lessee will assume and pay amounts sufficient to cover all takes, license fees, or other charges assessed or levied because of Lessee's use of the Premises or the business conducted by Lessee upon the Premis, ARTICLE 5. Lessee will not construct or install upon the Premises any buildings, structures, or improvements unless specifically permitted herein or by written consent of the Company. ARTICLE 6. Lessee shall obtain all permits, certificates, licenses, and authorizations required by any governmenf? authority for any improvements to or use of the Premises. ARTICLE 7. Lessee shall pay, satisfy, and discharge all claims, judgments or liens for material and/or labor, used employed by Lessee or its agents upon the Premises. ARTICLE 8. In its use and occupancy of the Premises, Lessee will comply with the requirements of all federal, state, and local safety, health, environmental, and sanitation laws, governmental regulations, and ordinances, and Lessee hereby agrees to indemnify and save harmless Company, its officers, agents, and employees, and the Additional Indemnified Parties from and against all losses, fines, penalties, liabilities and costs arising or growing out any failure to fully observe such laws, governmental regulations and ordinances. ARTICLE 9. Lessee shall not install any underground tanks or associated underground piping for the storage of e product on the Premises without the express written consent of Company given prior to installation. ARTICLE 10. Lessee shall not dispose of any wastes of any kind, whether hazardous or not, on the Premises, ar Lessee shall not conduct any activity on the Premises which may or does require a hazardous waste treatment, storage or disposal facility permit from any federal or state agency. ARTICLE 11. Lessee hereby agrees to indemnify and save harmless Company, its officers, agents, and employee and the Additional Indemnified Parties from and against all losses, fines, penalties, liabilities, claims, demands, caul of action, costs and expenses (including attorneys' fees) for personal injury to or death of any person or persons whomsoever and damage to or destruction of any property whatsoever arising from or growing out of, directly or indirectly, the presence of Lessee, its agents, servants or employees upon or about the Premises or in connection w the lease rights herein granted, whether or not such losses, fines, penalties, liabilities, claims, demands, causes of action, costs or expenses shall have been contributed to by the negligence of any of the indemnitees. ARTICLE 12. A minimum clearance of twenty-five (25) feet from the centerline of the nearest track shall be maintained at all times. EX#45 /7T REVERSE - FORM 11919 (6/94) (625092) Page 2 of 2 ARTICLE 13. This Lease shall continue in effect from the date hereinabove set forth until terminated by either party upon thirty (30) days' prior written notice to the other party, except that if Lessee shall default in the payment of rentals, or violate any other covenants herein, Company may terminate this Lease by ten (10) days' prior written notice to Lessee. No termination of this Lease will relieve either party hereto from any obligation incurred hereunder prior to such termination. ARTICLE 14. Upon any termination of this Lease, Lessee will vacate the Premises immediately, remove all improvements owned by or placed thereon by Lessee, and leave the Premises, including the subsurface, in as good order and condition as said Premises were prior to the use and occupation thereof by Lessee and free from holes, obstructions, debris, wastes, or contamination of any kind. ARTICLE 15. If Lessee fails to vacate the Premises prior to the date that Lessee is required to vacate such Premises, Company may, in addition to any other legal remedy it may have, re-enter and take possession of said Premises, oust Lessee and all persons holding under Lessee, and restore or arrange to restore the surface and subsurface of the Premises, at Lessee's expense. ARTICLE 16. Lessee agrees to pay all costs and expenses, including, but not limited to, reasonable attorneys' and consultants' fees, incurred by Company in connection with enforcing the performance of any of the provisions of this Lease. ARTICLE 17. If any provision of this Lease, or the application thereof to any person or circumstance, shall, for any reason and to any extent, be invalid of unenforceable, the remainder of this Lease and the application of such provision to other persons or circumstances shall not be affected thereby but rather shall be enforceable to the fullest extent permitted by law. ARTICLE 18. The parties hereto agree that the Additional Indemnified Parties referred to in Article 8 and Article 11 hereof are all of the corporate affiliates of Company and all of their respective officers, agents and employees. ARTICLE 18. Any notice required or permitted to be delivered hereunder shall be deemed to be delivered, when deposited in the United States Postal Service, postage prepaid, registered or certified mail, return receipt requested, addressed to Company or Lessee, as the case may be, at the address set forth below: Company Director Real Estate and Contract Services Norfolk Southern Corporation One Georgia Center 600 West Peachtree Street, N.W. Atlanta, Georgia 30308-3603 Lessee Clyde Bachert c/o Airport Limo/Yellow Cab 50 Market Street Lemoyne, PA 17043 Phone: (717) 737-3943 IN WITNESS WHEREOF, the parties have executed this Lease in duplicate, each being an original, as of the date hereinabove first written. NORFOLK SOUTHERN RAILWAY COMPANY, as lessee operator of the allocated assets of Pennsylvania Line_$ LLC [N me of Company] By:C Manager Real Estate [Title] CLYDE BACHERT [Name of Lessee] BY Clyfle Bachert ."'A IV a W y S ri x a Q 3 z F ?^ d N a ? w U ?^ W ?p ?Y ?pY o? f,m o? a N .. 0 0 Cy%w? f 1u^/ 00 3 F I` 1 Q BI ?l f '?7YM ??YM i ?,1 u 11 1 t ? ?fr 9n// a: Y' J u u, r 1 6 ov'py a? ?Qw S ' NORFOLK OUTHERN Norfolk Southern Corporation Louis S. Cataland Real Estate and Contract Services Director Contract Services suite 1650, One Georgia Center My Direct Line Is: 600 Weal Peachtree Street, N.W. Phone: (404) 962-4657 Atlanta, GA 30308-3603 FAX: (404) 962-5820 E-Mail: Iseatelat@naeorp.com March 28, 2003 Activity No.: 1052940 FEDERAL EXPRESS Harrisburg Taxicab & Baggage Company attn: Mr. Clyde Bachert 50 Market Street Lemoyne, PA 17043 ------- Re f91&0YNE,CumberlaudCouiCty;PA-=Ag7eement8eted"Nbvemlief 1'2 1vv7antleffective -- - December 1, 1997, between Consolidated Rail Corporation as assigned to Pennsylvania Lines, LLC by instrument dated June 1, 1999 (Norfolk Southern Railway Company, operator) and Harrisburg Taxicab & Baggage Company, concerning the use of 1.0 acre of property solely for parking, security, and beautification, and for no other purpose, located near Milepost 83. Dear Mr. Baehert: Pursuant to the terms of Article 2 of the referenced agreement (the "Agreement"), Norfolk Southern Railway Company hereby gives notice of termination effective thirty (30) days from the date of this letter. Please note that under the terms of Article 9 of the Agreement, you arc required to vacate the premises and remove from the property all improvements which are owned or were placed thereon by you, and restore the premises to the same condition existing prior to your use. Within five (5) days of receiving this letter, please forward written certification that the premises have not been contaminated. Please direct your certification to Norfolk Southern Corporation, c/o Ms. Judy Nash, Manager Real Estate Services, 600 West Peachtree Street, NW, Atlanta, GA 30308. If you have any questions concerning this matter, please contact Mr. Jim Ahonen, Manager Real Estate, at (717) 541-2237. cc NORFOLK SOUTHERN RAILWAY COMPANY By: eel Es eEs talk Manager Enclosure - copy of terminated Agreement CHO 3/28/03 land-tens 1052940 151932v1 Ooeratina Subsidiary: Norfolk Southern Railway Company. EXHIBIT C.... - LAW OFFICES Ma_UZIIAM, SIM311ll'ffiq .S IU1194simiY. & TIAII IL, LLID IST, FLOOR 200 NORTH THIRD STREET P. O. Box 840 SPENCER G. NAUMAN,JR. J. STEPHEN FEINOUR HARRISBURG, PENNSYLVANIA 17108-0840 CRAIG J. STAUDENMAIER TELEPHONE BENJAMIN C. DUNLAP. JR. OENN15 E.SOYLE (717) 236-3010 L.RENEE LIEUX TELEFAX LUC I N DA C. G LI N N (7171 234-1925 November 19, 2003 COUNSEL DAVID C. EATON JOHN C. SULLIVAN DIRECT E-MAIL ADDRESS NSSHON55H.COM Certified Mail-Return Receipt Requested and Regular Mail NOTICE TO VACATE Harrisburg Taxicab and Baggage Company Clyde Bachert Attention: Clyde Bachert 50 Market Street 50 Market Street Lemoyne, PA 17043 Lemoyne, PA 17043 RE: (a). Lemoyne, Cumberland County, PA - Property Lease Agreement dated November 17, 1997 - property comprising approximately one (1) acre near Mile Post 83 (b). Lemoyne, Cumberland County, PA - Property Lease Agreement dated March 29,2001 - property comprising approximately 275 square feet for pedestrian walkway Dear Mr. Bachert: Please be advised that this office represents the interests of Pennsylvania Lines LLC ("PRR") and Norfolk Southern Railway Company ("Norfolk Southern"), the owner and lessee-operator, respectively, of the separate premises comprising: (a) approximately one acre, more or less, which is the subject of the Property Lease dated November 17,1997 ("Lease P') and (b) approximately 275 square feet, more or less, for the purpose of a pedestrian walkway which is the subject of the Lease Agreement dated March 29, 2001 ("Lease II"). Lease I and Lease It are referred to collectively as the "Leases." Norfolk Southern and PRR have succeeded to the rights of the original lessor, Consolidated Rail Corporation, under Lease I. On March 28, 2003, you were given separate notices of the termination of the above- referenced Leases in accordance with their terms, said terminations to be effective thirty (30) days from the date of the notices. Copies of the Termination Notices are enclosed for your reference. Accordingly, you were required to vacate the leasehold premises and remove any and all improvements which were owned or placed thereon by you and to restore the premises to their pre- lease condition as of April 27, 2003. Recent inspection of the property has revealed that you have EXHIBIT Clyde Bachert November 19, 2003 Page 2 failed to timely vacate the premises and that you have caused or permitted used tires, construction debris, fill, unregistered vehicles and boats to accumulate on the premises. In addition, a substantial number of taxicabs are parked on the railroad right-of-way and dangerously close to the main track. The parking of the taxicabs on the railroad right-of-way constitutes an act of trespass on railroad property. Further, you have apparently erected a concrete boat on the premises. On behalf of our clients we are herewith demanding the immediate removal of the taxicabs, boats and all other vehicles from the railroad right-of-way and abatement of any encroachment on the right-of-way. You are further requested to vacate the premises and to remove, by no later than December 1, 2003, any and all improvements or structures, equipment, materials, merchandise or other things owned or placed by you on the premises, including but not limited to all used tires, construction debris, abandoned vehicles and environmental contaminants, if any, in accordance with applicable federal and state environmental laws and regulations. You have been in breach of both Leases due to the non-payment of the required rent payments when due. The rent arrearage on Lease I as of April 27, 2003, is $1,640.22. Furthermore, the sum of $400 is past due and owing on Lease II. You have held over in possession of the premises since the April 27, 2003 termination date entitling my client to continuing monthly rental payments equal to 200% of the Base Rent for the month immediately preceding termination until possession is surrendered to it. The Railroad is also entitled to recover all costs and expenses, including reasonable attorneys' fees it may incur in connection with the Lease termination and recovery and restoration of the Premises. Should you fail to vacate the premises and pay the rent arrearage by December 1, 2003, the appropriate legal proceedings will be commenced to compel your removal from the premises and the removal of all property and materials thereon, in which claim will be made for past due rent and any costs associated with the clean-up and restoration of the premises, together with interest, costs and attorneys' collection fees as authorized by the respective Lease Agreements. I request that you give this matter your immediate attention. Very truly yours, JSt `"hen Fervour /-7 JSF/jc cc: Randal S. Noe, Esquire James Ahonen ?ygPlel?:?NeJV/IJJI???Y:IFYc14NYl??'?(?]1r1(?,? ?%IFY.'IXNY[4P[?Ji1n ¦ Complete items 1, 2, and 3. Also complete jK SiSSgna[u `7 item 4 if Restricted Delivery Is desired. t ? Agent ¦ Print your name and address on the reverse Jf_,`1? ?' ? Addressee so that we can return the card to you. ?13 Reoe'wed by (P ted Name) C. Dat of Delivery ¦ Attach tnis card to the back of the mailpiece, ;J _ JJ or on the front if space permits. "- ?- J 8 M51 t M°6p tl ?? 2Zy03 D. Is delivery address dlffeit from Rem 11 0 Yes 1. Article Addressed to: If YES, enter delivery address below: 0 No Harrisburg Taxicab & Baggage 50 Market Street Lemoyne, PA 17043 D. 2. Article Number 7002 0860 0000 5798 1940 (1}ansfer from service label) PS Form 3811, August 2001 Domestic Return Receipt 102595,C)2-WW ¦ Complete Items 1, 2, and 3, Also complete q? item 4 if Restricted Delivery is desired. (Y?_ ¦ Print your name and address on the reverse so that we can return the card to you. _ -e ¦ Attach this card to the back of the mailpiece, or on the front if space permits. -- -- 1. Article Addressed to: Clyde Bachert 50 Market Street Lemoyne, PA 17043 2. Article Number (Transfer from service /abed PS Form 3811, August 2001 3. Service Type NO Certified Mall 0 Express Mall 0 Registered 0 Return Receipt for Merchandise 0 Insured Mail 0 C.O.D. 4. Restricted Delivery? (Extra Fee) 0 Yes r ? 0 Agent ? s?--yi 0 Addressee Received by (Pn L? Name) C. Da of Delivery -'j?ma? f ?Fx,OfirX A'1 fin/6 Is delivery address ifferent from item I i 0 Yes It YES, enter delivery address below: 0 No 3. Service Type Certified Mail 0 Express Mail 0 Registered 0 Return Receipt for Merchandise 0 Insured Mall 0 C.O.D. 4. Restricted Delivery? (Extra Fee) 0 y05 7002 0860 0000 5798 1957 Domestic Return Receipt 102595-02-M-1540 Norfolk Southern Corporation Real Estate and Contract Services Suite 1650, One Georgia Center 600 West Peachtree Street, N.W. Atlanta, GA 30308-3603 Louis S. Cataland Director Contract Services My Direct Line Is: Phone: (404) 962.4657 FAX: (404) 962-5820 E-Mail: Iscatalat@nscorp.com March 28, 2003 Activity No.: 1054384 FEDERAL EXPRESS Mr. Clyde Bachert c/o Airport Limo/Yellow Cab 50 Market Street Lemoyne, PA 17043 Re: LEMOYNE, Cumberland County, PA - Agreement dated March 29, 2001 and effective April 1, 2001, between Norfolk Southern Railway Company and Clyde Bachert, concerning the use of 275 square feet of property solely for the purpose of a pedestrian walkway. Dear Mr. Bachert: Pursuant to the terms of Article 13 of the referenced agreement (the "Agreement"), Norfolk Southern Railway Company hereby gives notice of termination effective thirty (30) days from the date of this letter. Please note that under the terms of Article 14 of the Agreement, you are required to vacate the premises and remove from the property all improvements which are owned or were placed thereon by you, and restore the premises to the same condition existing prior to your use. If you have any questions concerning this matter, please contact Mr. Jim Ahonen, Manager Real Estate, at (717) 541-2237. NORFOLK SOUTHERN RAILWAY COMPANY By: Real Estate Manager Enclosure - copy of terminated Agreement CHO 3/28/03 land-term 1054384 151951 v 1 B EXHIBIT ? ?. ? v ?? ? ?? ?? SHERIFF'S RETURN - REGULAR CASE NO: 2004-00873 P COMMONWEALTH OF PENNSYLVANIA: COUNTY OF CUMBERLAND NORFOLK SOUTHERN RAILWAY CO VS HARRISBURG TAXICAB & BAGGAGE RICHARD SMITH , Sheriff or Deputy Sheriff of Cumberland County,Pennsylvania, who being duly sworn according to law, says, the within COMPLAINT - EJECTMENT was served upon HARRISBURG TAXICAB & BAGGAGE COMPANY the DEFENDANT , at 1529:00 HOURS, on the 1st day of March 2004 at 50 MARKET STREET LEMOYNE, PA 17043 by handing to BRENDA KLINEDINST, OFFICE MANAGER a true and attested copy of COMPLAINT - EJECTMENT together with and at the same time directing Her attention to the contents thereof. Sheriff's Costs: So Answers: Docketing 18.5 Service 10.335 Affidavit .00 Surcharge 10.00 R. Thomas Kline .00 38.35 03/02/2004 NAUMAN SMITH S SSLER HALL Sworn and Subscribed to before By: me this ,,5W day of D uty Sheriff /![2u?_ ?pptf A.D. ?_ n ,? P othonotary SHERIFF'S RETURN - REGULAR CASE NO: 2004-00873 P COMMONWEALTH OF PENNSYLVANIA: COUNTY OF CUMBERLAND NORFOLK SOUTHERN RAILWAY CO VS HARRISBURG TAXICAB & BAGGAGE RICHARD SMITH , Sheriff or Deputy Sheriff of Cumberland County,Pennsylvania, who being duly sworn according to law, says, the within COMPLAINT - EJECTMENT BACHERT CLYDE the DEFENDANT , at 1529:00 HOURS, on the 1st day of March 2004 at 50 MARKET STREET LEMOYNE, PA 17043 by handing to BRENDA KLINEDINST, OFFICE MANAGER a true and attested copy of COMPLAINT - EJECTMENT together with and at the same time directing Her attention to the contents thereof. Sheriff's Costs: Docketing 6.00 Service .00 Affidavit .00 Surcharge 10.00 .00 16.00 Sworn and Subscribed to before me this day of o2 OD / A.D. Q, ?Plchonotary zO So Answers: ---? R. Thomas Kline 03/02/2004 NAUMAN SMITH S I S R HALL By: Deputy Sheriff was served upon SHERIFF'S RETURN - REGULAR CASE NO: 2004-00873 P COMMONWEALTH OF PENNSYLVANIA: COUNTY OF CUMBERLAND NORFOLK SOUTHERN RAILWAY CO VS HARRISBURG TAXICAB & BAGGAGE RICHARD SMITH , Sheriff or Deputy Sheriff of Cumberland County,Pennsylvania, who being duly sworn according to law, says, the within COMPLAINT - EJECTMENT was served upon COURTEOUS RENTAL INC the DEFENDANT , at 1529:00 HOURS, on the 1st day of March , 2004 at 50 MARKET STREET LEMOYNE, PA 17043 by handing to BRENDA KLINEDINST, OFFICE MANAGER a true and attested copy of COMPLAINT - EJECTMENT together with and at the same time directing Her attention to the contents thereof. Sheriff's Costs: Docketing 6.00 Service .00 Affidavit .00 Surcharge 10.00 .00 16.00 Sworn and Subscribed to before me this j? day of o2dvv A.D. rothonotaary 7 ' So Answers: R. Thomas Kline 03/02/2004 NAUMAN SMITH 5 ISSLER HALL By: Deputy Sheriff NORFOLK SOUTHERN RAILWAY : IN THE COURT OF COMMON PLEAS COMPANY and PENNSYLVANIA LINES : CUMBERLAND COUNTY, PENNSYLVANIA LLC, Plaintiffs V. HARRISBURG TAXICAB & BAGGAGE COMPANY, a Pennsylvania corporation; CLYDE BACHERT, an individual; and COURTEOUS RENTAL, INC. Defendants No: 04 - 873 CIVIL :CIVIL ACTION - LAW :Action in Ejectment :Jury Trial Demanded NOTICE TO PLEAD TO NEW MATTER TO: Norfolk Southern Railway Company and Pennsylvania Lines LLC, by and through its attorneys J. Stephen Feinour, Esquire Nauman, Smith, Shissler & Hall, LLP 200 North Third Street, 18" Floor P.O. Box 840 Harrisburg PA 17108-0840 You are hereby notified to plead where applicable to the enclosed Answer With New Matter within twenty (20) days from service hereof, or a default judgment may be entered against you. Respectfully submitted, Dated: April 30, 2004 KILLIAN & GEP AR , LLP evi Steven K. Bainbridge, Esquire Attorney I.D. #91018 218 Pine Street P. O. Box 886 Harrisburg, PA 17108-0886 (717) 232-1851 NORFOLK SOUTHERN RAILWAY : IN THE COURT OF COMMON PLEAS COMPANY and PENNSYLVANIA LINES : CUMBERLAND COUNTY, PENNSYLVANIA LLC, Plaintiffs V. HARRISBURG TAXICAB & BAGGAGE COMPANY, a Pennsylvania corporation; CLYDE BACHERT, an individual; and COURTEOUS RENTAL, INC. Defendants No: 04 - 873 CIVIL :CIVIL ACTION - LAW :Action in Ejectment :Jury Trial Demanded DEFENDANTS' ANSWER WITH NEW MATTER AND NOW, this 30' day of April, 2004, come Defendants, Harrisburg Taxicab and Baggage Company, Clyde Bachert, and Courteous Rental, Inc., by and through their attorneys, Killian & Gephart, and file this Answer With New Matter, and in furtherance thereof aver the following: Admitted. 2. Admitted. 3. Admitted in part, denied in part. It is admitted that Harrisburg Taxicab and Baggage Company was a corporation organized under the laws of the Commonwealth of Pennsylvania and was located at 50 Market Street, Lemoyne, Cumberland County, Pennsylvania, until it ceased operations on March 31, 2004. 4. Admitted in part, denied in part. It is admitted that Clyde Bachert was President and principal owner of Harrisburg Taxicab and Baggage Company (hereinafter "Harrisburg Taxicab"). It is specifically denied that Clyde Bachert acted in an individual capacity in any way in regard to Leases I and II. 5. Admitted in part, denied in part. It is admitted that Courteous Rental, Inc. was a corporation organized under the laws of the Commonwealth of Pennsylvania and was located at 50 Market Street, Lemoyne, Cumberland County, Pennsylvania, until it ceased operations on March 31, 2004. It is admitted that Clyde Bachert was President and principal owner of Courteous Rental, Inc. 6. Admitted. 7. Admitted in part. It is admitted that Conrail and Harrisburg Taxicab entered into an agreement to lease Premises I on November 12, 1997, and that the lease designated "Lease P" in the Complaint and attached to it as Exhibit "A" is a true and correct copy of the agreement. In regard to the use of Premises I, Lease I is a written contract and speaks for itself and no responsive pleading is required. 8. Lease I is a written contract and speaks for itself and no responsive pleading is required. 9. Admitted. 10. Admitted in part. It is admitted that Norfolk: Southern and Harrisburg Taxicab, d/b/a Yellow Cab, entered into an agreement to lease Premises II on March 29, 2001, and that the lease designated "Lease II" in the Complaint and attached to it as Exhibit "B" is a true and correct copy of the agreement. In regard to the use of Premises II, Lease II is a written contract and speaks for itself and no responsive pleading is required. 11. Defendants, after reasonable investigation, are without knowledge or information sufficient to form a belief as to the truth of this averment. 12. Defendants, after reasonable investigation, are without knowledge or information sufficient to form a belief as to the truth of this averment. 13. Refer to the responses of paragraphs 1 through 12. 14. Lease I speaks for itself and no responsive pleading is required. 15. Lease I speaks for itself and no responsive pleading is required. 16. Lease I speaks for itself and no responsive pleading is required. 17. Lease I speaks for itself and no responsive pleading is required. 18. Lease I speaks for itself and no responsive pleading is required. 19. Lease I speaks for itself and no responsive pleading is required. 20. Lease I speaks for itself and no responsive pleading is required. 21. Lease I speaks for itself and no responsive pleading is required. 22. Lease I speaks for itself and no responsive pleading is required. 23. Lease I speaks for itself and no responsive pleading is required. 24. Lease I speaks for itself and no responsive pleading is required. 25. Denied. 26. Denied. 3 27. Denied. 28. Admitted in part, denied in part. It is admitted that a portion of lands along the riverfront near the under-track stone arch tunnel was never governed by Lease I or Lease II. It is specifically denied that the area through the: under-track stone arch drain is governed by Lease I or Lease II. By way of further answer, Defendants possess an easement through to the under-track stone arch drain to access property along the riverfront. 29. Denied. 30. Denied. 31. Denied. 32. Admitted in part. It is admitted that Clyde Bachert was President and principal owner of Courteous Rental, Inc., until it ceased operations on March 31, 2004. 33. Denied. It is specifically denied that Harrisburg Taxicab and Clyde Bachert have not vacated Premises I and II and relinquished possession of the same. 34. Denied. Its is specifically denied that Courteous Rental, Inc. has not vacated Premises I and II and relinquished possession of the same. 35. Refer to responses for paragraphs 1 through 12. 36. Lease II speaks for itself and no responsive :pleading is required. 37. Lease II speaks for itself and no responsive pleading is required. 38. Lease 11 speaks for itself and no responsive :pleading is required. 39. Lease II speaks for itself and no responsive pleading is required. 40. Lease II speaks for itself and no responsive pleading is required. 41. Denied. 42. Lease II speaks for itself and no responsive pleading is required. 43. Denied. 44. Denied. 45. Denied. It is specifically denied that Clyde Bachert has not vacated Premises I and II and relinquished possession of the same. 46. Refer to responses for paragraphs 1 through 31. 47. Lease I speaks for itself and no responsive pleading is required. 48. Lease I speaks for itself and no responsive pleading is required. 49. Denied. 50. Lease I speaks for itself and no responsive pleading is required. 51. Lease I speaks for itself and no responsive pleading is required. 52. Refer to responses for paragraphs 1 through 45. 53. Lease II speaks for itself and no responsive :pleading is required. 54. Denied. 55. Lease II speaks for itself and no responsive :pleading is required. 56. Lease II speaks for itself and no responsive :pleading is required. 5 NEW MATTER 57. Clyde Bachert did not act in an individual capacity in any way with regard to Leases I and II. 58. Harrisburg Taxicab and Courteous Rentals, Inc. ceased operations on March 31, 2004. 59. Clyde Bachert, Harrisburg Taxicab, and Courteous Rentals, Inc. have vacated Premises I and II and relinquished possession of same as of April 30, 2004, irrespective of whether the Defendants vacated and relinquished possession at an earlier date. 60. Plaintiffs did not incur expenses in relation to the erected guard rails and sidewalk paving at the Market Street entrance to Premises II. 61. Defendants believe, and therefore aver, that Plaintiffs, at some time after November 12, 1997, lost ownership of the bridge erected on Premises I which spans the "Tarbound Stone Road" as indicated on exhibit `A' of Lease I (attached as Exhibit A to Complaint), including some amount of right-of-way to the left and right of said bridge. 62. Defendants believe, and therefore aver, that parties unrelated to Defendants have dumped soil, debris, and other objects onto Premises I, in particular on the sloping portion of Premises I which borders the abandoned track area along the western edge of Premises I. 63. These other parties which dumped items onto Premises I reached these areas from the property which Defendants believe, and therefore aver, was and is owned by Plaintiffs, namely the abandoned elevated track areas along the western edge of Premises I. 64. Defendants believe, and therefore aver, that these other parties which dumped items onto Premises I did so at times prior to the signing of the Premises I lease. 65. Soil, material, and other items were present on the sloping, western portion of Premises I, including in particular a "cliff-like" section along the northern-most side of the western edge, at the time of the signing of the Premises I lease. 66. The parties did not intend Lease I to require Defendants to clean up items dumped by unrelated parties which accessed the Premises I area from the Plaintiff's property along the western edge of Premises I. 67. The termination of Leases I and II does not impact, effect or otherwise limit enjoyment by Defendants of an easement through the under-track stone arch tunnel discussed in paragraph 28 of the Complaint. The tunnel in question is shown on Exhibit `A' of Lease I, on the eastern edge of area marked "proposed lease to MMI Racing", such tunnel passing under the main rail line along the river. Lease I is attached as exhibit A to the Complaint. 68. The Defendants raise the affirmative defense of consent. 69. The Defendants raise the affirmative defense of estoppel. 70. The Defendants raise the affirmative defense of justification. 71. The Defendants raise the affirmative defense of res judicata. 72. The Defendants raise the affirmative defense of waiver. WHEREFORE, Defendants respectfully request this Honorable Court to dismiss Plaintiffs Complaint for all the reasons stated above. Respectfully submitted, KILLIAN & GEPHART, LLP Dated: April 30, 2004 1 Steven K. Bainbridge, Esquire Attorney I.D. #91018 218 Pine Street P. O. Box 886 Harrisburg, PA 17108-0886 (717) 232-1851 VERIFICATION I hereby verify that the statements of fact made in the foregoing document are true and correct to the best of my knowledge, information and belief. I understand that any false statements therein are subject to the criminal penalties contained in 18 Pa. C. S. Section 4904, relating to unworn falsification to authorities. Dated: 4 13 O 104- CLY)ft BACHERT, Individually and as Owner of Harrisburg Taxicab & Baggage Company CERTIFICATE OF SERVICE I do hereby certify that I served a true and correct copy of the within document upon the following by depositing a copy of same in the United States mail, postage prepaid, addressed as follows: J. Stephen Feinour, Esquire Nauman, Smith, Shissler & Hall, LLP 200 North Third Street, 18"' Floor P.O. Box 840 Harrisburg PA 17108-0840 Dated: April 30, 2004 jh 4d?4 Steven K. Bainbridge, Esquire Attorney I.D. #91018 KILLIAN & GEPHART, LLP 218 Pine Street P. O. Box 886 Harrisburg, PA 17108-0886 (717) 232-1851 ? N 0 s- C1„rig 3 (- l7 C n o - NORFOLK SOUTHERN RAILWAY : IN THE COURT OF COMMON PLEAS COMPANY and PENNSYLVANIA LINES : CUMBERLAND COUNTY, PENNSYLVANIA LLC, Plaintiffs VS. Docket No. 04-873 Civil HARRISBURG TAXICAB & BAGGAGE CIVIL ACTION - LAW COMPANY, a Pennsylvania corporation; CLYDE BACHERT, an individual; and Action in Ejectment COURTEOUS RENTAL, INC. Defendants PLAINTIFFS' REPLY TO NEW MATTER AND NOW come Plaintiffs, Norfolk Southern Railway Company and Pennsylvania Lines LLC, by and through their attorneys, Nauman, Smith, Shissler & Hall, LLP, and make their Reply to the New Matter of Defendants as follows: 57. Denied. Defendant, Clyde Bachert, is the named lessee in and signatory to Lease II. It is further averred upon information and belief and Defendant, Bachert, at times relevant hereto, was the sole owner who controlled the affairs of Defendants, Harrisburg Taxicab & Baggage Company and Courteous Rental, hic. 58. Plaintiffs are without information or knowledge sufficient to form a belief as to the truth of the averments set forth in Paragraph 58, and the same are therefore denied. 59. Admitted. 60. Admitted. 61. Denied. It is denied that Plaintiffs, at some time after November 12, 1997, lost ownership of the bridge erected on Premises I which spans the "tarbound stone road" and includes some amount of right-of-way to the left and right of said bridge. To the contrary, it is averred that the bridge formerly known as the Cumberland Valley Railroad Bridge was acquired from Plaintiffs by Capital Area Transit Corporation. The transfer of ownership of the bridge to Capital Area Transit in no way impacted on the area leased to Defendants under Lease I. 62. Denied as stated. Plaintiffs believe, and therefore aver, that Defendants caused or allowed unknown parties to dump soil, debris and other objects onto Premises I, including in particular the sloping portion of Premises I bordering the abandoned track area along the western edge of Premises I. Plaintiffs are without information or knowledge sufficient to form a belief as to the truth of the remaining averments of Paragraph 62, and the same are therefore denied. 63. Plaintiffs are without information or knowledge sufficient to form a belief as to the truth of the averments set forth in Paragraph 63, and the same are therefore denied. 64. Plaintiffs are without information or knowledge sufficient to form a belief as to the truth of the averments set forth in Paragraph 64, and the same are therefore denied. 65. Denied. It is denied that soil, material and other items were present on the sloping, western portion of Premises I, including in particular a "cliff-like" section along the northern-most side of the western edge, at the time of the signing the Premises I lease. 66. Denied. Lease I, by its terms, required Defendants to vacate the leased premises, to remove from the Premises all improvements owned or placed thereon, and to restore the Premises to its pre-lease condition. 67. Denied. It is denied that Defendants enjoyed an easement through the under-track stone arch tunnel referenced in Paragraph 28 of the Complaint. Lease I is a written document which speaks for itself. The remaining averments of Paragraph 67 are denied as conclusions of law to which no response is required under the Pennsylvania Rules of Civil Procedure. 68. The averments of Paragraph 68 constitute conclusions of law to which no response is required under the Pennsylvania Rules of Civil Procedure. If, however, they be deemed averments of fact, the same are specifically denied. 69. The averments of Paragraph 69 constitute conclusions of law to which no response is required under the Pennsylvania Rules of Civil Procedure. If, however, they be deemed averments of fact, the same are specifically denied. 70. The averments of Paragraph 70 constitute conclusions of law to which no response is required under the Pennsylvania Rules of Civil Procedure. If, however, they be deemed averments of fact, the same are specifically denied. 71. The averments of Paragraph 71 constitute conclusions of law to which no response is required under the Pennsylvania Rules of Civil Procedure. If, however, they be deemed averments of fact, the same are specifically denied. 72. The averments of Paragraph 72 constitute conclusions of law to which no response is required under the Pennsylvania Rules of Civil Procedure. If, however, they be deemed averments of fact, the same are specifically denied. WHEREFORE, Plaintiffs, Norfolk Southern Railway Company and Pennsylvania Lines LLC, respectfully request the entry of judgment in their favor as prayed for in their Complaint. NAUMAN, SMITH, SHISSLER & HALL, LLP J tep en Feinour, Esquire upreme Court ID # 24580 200 North Third Street, 18th Floor P. O. Box 840 Harrisburg, PA 17108 Telephone: (717) 236-3010 Date: October 27, 2004 Counsel for Plaintiffs, Norfolk Southern Railway Company and Pennsylvania Lines LLC VERIFICATION I, James N. Ahonen, Property Manager, of Norfolk Southern Railway Company, Plaintiff in the foregoing proceeding, do make the following statement subject to the penalties of 18 Pa. C.S. §4904, relating to unsworn falsifications to authority, and do state that as Property Manager for Norfolk Southern Railway Company, I am authorized to make this statement on behalf of Norfolk Southern, and that the facts set forth in the foregoing Complaint in Ejectment are true and correct to the best of my knowledge, information and belief. To the extent that the contents of the pleading are that of counsel, verifier has relied upon counsel in making this verification. James N. Ahonen Dated: 10?5-Cy CERTIFICATE OF SERVICE AND NOW, on the date stated below, I, J. Stephen Feinour, Esquire, of the firm of Nauman, Smith, Shissler & Hall, LLP, hereby certify that I this day served the foregoing "Reply to New Matter" by depositing a copy of the same in the United States Mail, first class, postage prepaid, at Harrisburg, Pennsylvania, addressed to the following: Steven K. Bainbridge, Esquire Killian & Gephart, LLP 218 Pine Street P. O. Box 886 Harrisburg, PA 17108-0886 NAUMAN, SMITH, SHISSLER & HALL, LLP *$(ephen Feinour, Esquire upreme Court ID# 24580 200 North Third Street, P. O. Box 840 Harrisburg, PA 17108-0840 Telephone: (717) 236-3010 Counsel for Plaintiffs, Norfolk Southern Railway Company and Pennsylvania Lines, LLC Date: October 27, 2004 !'1 N C.l CO co -p m 7J 0 "CT L Tl N I 3 m i,Ti _; 7 Co < Steven K. Bainbridge, Esquire P.A. Attorney I.D. 91018 17 North Second Street 12th Floor Harrisburg PA 17101-1601 (717) 612-6013 (717) 731-1985 (fax) sbainbridge@postschell.com Norfolk Southern Railway Company and Pennsylvania Lines LLC, Plaintiffs V. Harrisburg Taxicab & Baggage Company, Clyde Bachert, and Courteous Rental, Inc. Defendants IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA Docket No. 04 -873 Civil Civil Action - Law Jury Trial Demanded PETITION TO WITHDRAW APPEARANCE The Law Firm of Killian & Gephart, LLP, and Steven K. Bainbridge, Esquire, (previously of The Law Firm of Killian & Gephart, LLP and now with the law firm of Post & Schell, P.C.) hereby petition this Honorable Court for leave to withdraw our appearances on behalf of Defendants. 2. The whereabouts of the parties on whose behalf the appearance was entered, Defendants Harrisburg Taxicab & Baggage Company, Clyde Bachert, and Courteous Rental, Inc, are known: Clyde Bachert, Jr. Courteous Rental, Inc. Harrisburg Taxicab & Baggage Company 1130 Chambersburg Rd. Gettysburg, PA 17325 3. Steven K. Bainbridge, Esquire represented Defendants while employed at Killian & Gephart in this action in ejectment and for unpaid rents involving lease of property near the Market Street Bridge in Harrisburg, including unpaid rents totalling approximately $4,500. 4. When attorney Bainbridge moved from Killian & Gephart to Post & Schell on March 1, 2005, Defendants choose to transfer representation to Post & Schell, P.C., but have since declined to do so. 5. Post & Schell has not entered its appearance in this matter. 6. The case presently stands where the Defendants did vacate the property in March of 2004 and stipulated to ejectment therefrom. The unpaid rents of $4,500 remain at issue. 7. Given that Defendants have stipulated to ejectment, and the remaining issues involving the unpaid rents have remained unresolved without substantial action in the case in the last year, withdraw of our appearances will not delay this proceeding. 2 8. If this Honorable Court grants leave to withdraw, Steven K. Bainbridge, Esquire will promptly serve the Order granting leave to withdraw on Defendants and counsel for Plaintiff. 9. The Court empowered to grant leave to withdraw our appearances pursuant to Pa. R. C. P. 1012(b), (c), and (d). WHEREFORE, The Law Firm of Killian & Gephart, LLP, and Steven K. Bainbridge, Esquire, hereby request that this Honorable Court grant leave to withdraw our appearances on behalf of Defendants Harrisburg Taxicab & Baggage Company, Clyde Bacher, and Courteous Rental, Inc. Respectfully Su miffed, Dated. "/t- Steven K. Bainbridge, Esquire PA Attorney I. D. # 91018 17 North Second Street 12`h Floor Harrisburg PA 17101-1601 (717) 612-6013 (717) 731-1985 (fax) d e Wy, Esquire / A Attorney I. D. # Rs-r, -?-3 Killian & Gephart, LLP 218 Pine Street P.O. Box 886 Harrisburg PA 17108 (717) 232-1851 (717) 238-0592 (fax) jpenny@killiangephart.com CERTIFICATE OF SERVICE I, Steven K. Bainbridge, Esquire do hereby certify that I caused a true and correct copy of the foregoing document(s) to be served upon the following designated person(s) by placing the same in the United States Mail, First Class Delivery, on the date set forth below. J. Stephen Feinour, Esquire Naumen, Smith, Shissler & Hall, LLP 200 North Third Street, 18"' Floor P.O. Box 840 Harrisburg PA 17108-0840 Clyde Bachert, Jr. 1130 Chambersburg Rd. Gettysburg, PA 17325 Date: V\ rti3 Z I 0-b5 Respectfully, Steven R. Bainbridge, Esquire N Q 4.. ?'ft ? rnr I v I ?t? ?- ? Y Y ?} cJ .C` rK RECEIVED JUN 0 810051' Norfolk Southern Railway Company IN THE COURT OF COMMON PLEAS and Pennsylvania Lines LLC, OF CUMBERLAND COUNTY, Plaintiffs PENNSYLVANIA V. Docket No. 04 -873 Civil Harrisburg Taxicab & Baggage Civil Action - Law Company, Clyde Bachert, and Courteous Rental, Inc. Jury Trial Demanded Defendants ORDER AND NOW, upon consideration of the Petition to Withdraw Appearance, the appearances of Killian & Gephart, LLP and Steven K. Bainbridge, Esquire on behalf of Defendants Harrisburg Taxicab & Baggage Company, Clyde Bachert, and Courteous Rental, Inc. are hereby WITHDRAWN. Steven K. Bainbridge, Esquire will promptly serve a copy of this Order on the Defendants and counsel for Plaintiff. ?v-C?' D? Distribution: i Steven K. Bainbridge, Post & Schell, 17 N. 2nd St., 12th Fl., Harrisburg PA 17101 Cl.. - CELL' Curtis R. Long Prothonotary office of the Vrotbonotarp Cumberranb Countp Renee K. Simpson Deputy Prothonotary John E. Slike Solicitor n11 - g'T3 CIVIL TERM ORDER OF TERMINATION OF COURT CASES AND NOW THIS 29TH DAY OF OCTOBER 2008 AFTER MAILING NOTICE OF INTENTION TO PROCEED AND RECEIVING NO RESPONSE - THE ABOVE CASE IS HEREBY TERMINATED WITH PREJUDICE IN ACCORDANCE WITH PA R C P 230.2 BY THE COURT, CURTIS R. LONG PROTHONOTARY nn,- rmirthnuse Sauare • Carlisle, Pennsylvania 17013 • (717) 240-6195 • Fax (717) 240-6573