Loading...
HomeMy WebLinkAbout09-0356In the Court of Common Pleas of Cumberland County, Pennsylvania Civil Division Delta Development Group, Inc., ) Docket No. C~ - .3 s~ Plaintiff } v. ) McHolme Builders, Inc. ) Defendant ) CONFESSION OF JUDGMENT Pursuant to the authority contained in the warrant of attorney appearing in Paragraph 4 of the Consultant Agreement, a copy of which is attached to the complaint filed in this action, I appear for the Defendant and confess judgment in favor of the Plaintiff and against Defendant as follows: Principal Amount Due Other Authorized Items Interest Attorneys' fees Total Amount Due: $156,513.58 $0 $ 9,66759 $ 5,000.00 $ 171,181.17 Attorney for Defendant Judgment entered as above,~~~QQ.(date) Prothonotary In the Court of Common Pleas of Cumberland County, Pennsylvania Civil Division Delta Development Group, Inc., ) Plaintiff ) v. ) McHolme Builders, Inc. ) Defendant ) Docket No. ~Q - 3 s~ e~ V ~C ~~ COMPLAINT AND NOW, comes the Plaintiff, Delta Development Group, Inc., by its undersigned counsel, and files this complaint in confession of judgment for money pursuant to Pa. R.C.P. No. 2951(b), et seq., against the Defendant, McHolme Builders, Inc., and in support thereof avers as follows: 1. Plaintiff, Delta Development Group, Inc. ("Delta"), is a corporation incorporated under the laws of the Commonwealth of Pennsylvania with a principal place of business at 2000 Technology Parkway, Mechanicsburg, Pennsylvania 17050. 2. Defendant, McHolme Builders, Inc. ("McHolme"), is a corporation incorporated under the laws of the Commonwealth of Pennsylvania with a principal place of business at 315 Payday Drive, Elizabeth, Pennsylvania 15037. 3. Under 42 Pa. Cons. Stat. § 931, the Court of Common Pleas has exclusive jurisdiction over the subject matter that is more fully discussed herein. 4. Venue is proper in Cumberland County because payment under the Consultant Agreement (which is defined herein) was (is) due in Cumberland County, Pennsylvania. See Pa. R.C.P. No. 2179(a); Lucas Enter., Inc. v. Paul C. Harmon Co., 273 Pa. Super. 422, 417 A.2d 720 (1980) (In a breach of contract action alleging a failure to pay, venue is proper in the county where payment is due.). 5. Venue is also proper in Cumberland County because the majority of all the services rendered by Delta to McHolme under the Consultant Agreement (as discussed more fully herein) occurred at Delta's principal place of business in Cumberland County, Pennsylvania. Pa. R.C.P. No. 2179(a). 6. Delta is an independent consultant in the business of providing economic development, governmental affairs and other similar services (including, but not limited to, planning and grant administration services) for which Delta receives compensation. 7. McHolme desired to secure funding for a commercial retail development project in Franklin Township, Greene County, Pennsylvania. 8. On or about February 28, 2006, McHolme entered into a Consultant Agreement with Delta for Delta's services as a development consultant. 9. Attached as part of Exhibit "A" is a true and correct copy of the Consultant Agreement duly executed by McHolme. 10. On or about September 18, 2007, Delta and McHolme entered into an agreement to extend the arrangement under the Consultant Agreement until 2 November 30, 2007. 11. Attached as part of Exhibit "A" is a true and correct copy of the Agreement Extension. 12. Attached as Exhibit "B" is an affidavit of Anthony B. Seitz, as required by Paragraph 4 of the Consultant Agreement, verifying that Exhibit "A" includes a true and correct copy of the Consultant Agreement. 13. Under the Consultant Agreement, Delta agreed to perform the services and duties of a development consultant to McHolme, in consideration for McHolme's agreement to pay Delta for the value of these services. 14. Under the Consultant Agreement, McHolme agreed to pay Delta for services rendered to McHolme at the fees and rates set forth in the Consultant Agreement, in consideration for Delta's agreement to provide public funding services to McHolme. 15. Paragraph 3(c) of the Consultant Agreement, Exhibit A, provides that "[a]ny invoices unpaid after thirty (30) days from the date of invoice will be assessed an interest fee of 1.5 % per month." 16. Delta provided the agreed upon services to McHolme. 17. The services rendered by Delta were at all times proper, satisfactory, consistent with the Consultant Agreement and in performance of the Consultant Agreement. 18. Pursuant to the terms of the Consultant Agreement, Delta forwarded monthly invoices to McHolme requesting payment for services rendered by Delta to McHolme. 19. Pursuant to the terms of the Consultant Agreement, Delta forwarded invoices to 3 McHolme requesting payment of the development fee in recognition of Delta's services on behalf of McHolme, as provided in Paragraph 3(d) of the Consultant Agreement. 20. The invoices forwarded by Delta to McHolme requested that payment be made to Delta at Delta's principal place of business in Cumberland County, Pennsylvania. 21. For a period of time, McHolme made periodic payments to Delta on the invoices for services rendered by Delta to McHolme under the Consultant Agreement. 22. McHolme made such periodic payments to Delta at Delta's principal place of business in Cumberland County, Pennsylvania. 23. McHolme has not objected or otherwise notified Delta that the services rendered by Delta to McHolme were improper, unsatisfactory, or inconsistent with the Consultant Agreement or not in performance of the Consultant Agreement. On the contrary, McHolme has acknowledged to Delta on more than one occasion that Delta's services were of great value and critical to the viability of its Franklin Township retail project. 24. McHolme has failed to make payment on invoices for services rendered by Delta to McHolme. All invoices were timely mailed by Delta to McHolme at their principal place of business. 25. McHolme has failed to pay monthly invoices dated August 31, 2007, September 30, 2007, October 31, 2007, and November 30, 2007. True and correct copies of these invoices from Delta to McHolme are attached as Exhibit "C". 4 26. McHolme has failed to pay an invoice dated June 28, 2007 for the development fee provided for in Paragraph 3(d) of the Consultant Agreement. A true and correct copy of this invoice from Delta to McHolme is attached as Exhibit "C". Delta agreed to defer payment of the development fee until McHolme closed on its Infrastructure and Facilities Improvement Program ("IFIP") funding. On multiple occasions following the September 18, 2007 agreement extension, Delta was assured by McHolme that full payment would be provided to Delta with McHolme's receipt of the first installment of IFIP financing. 27. McHolme received the first installment of IFIP funding on October 7, 2008. 28. Presently, McHolme is $156,513.58 plus $9,667.59 in interest, in arrears on its payments to Delta for the services rendered by Delta to McHolme under the Consultant Agreement. 29. Despite demands by Delta to McHolme, including a letter from Delta's counsel to McHolme dated November 11, 2008, McHolme has failed and refused to pay said arrears for services rendered by Delta to McHolme under the Consultant Agreement. McHolme failed to provide any response to Delta or Delta's counsel with regard to a payment arrangement as requested in the November 11, 2008 letter. A true and correct copy of the letter from Delta's counsel to McHolme is attached as Exhibit "D". 30. McHolme has defaulted and violated the terms of the Consultant Agreement by failing to make timely payment. 31. Paragraph 4 of the Consultant Agreement specifically permits confession of judgment for money for recovery of any unpaid amounts due under the 5 Consultant Agreement together with interest, fees of counsel, and costs of suit. 32. The Consultant Agreement has not been assigned 33. Judgment has not been entered in any jurisdiction on the Consultant Agreement authorizing confession or upon any other issue in the same or related matter. 34. The transaction upon which this matter is based is a business transaction and judgment is not being entered by confession against a natural person in connection with a consumer credit transaction. 35. Consequently, McHolme is liable to Delta as follows: Unpaid balance $ 156,513.58 Interest from (date) (1.5 %/month) $ 9,667.59 Attorney's collection fee $ 5,000.00 Total: $ 171,181.17 WHEREFORE, Plaintiff respectively demands that judgment for money be entered in its favor and against Defendant, McHolme Bui}ders, Inc., in the sum of $171,181.17 as authorized by the warrant of attorney appearing in Paragraph 4 of the Consultant Agreement. Respectfully submitted, Michae} D. Klein, Esquire PA Supreme Court No. 23854 Dewey & l:,eBoeuf LI.P 1101 New York Avenue, NW Washington, DC 20005 (202)346-8154 Fax: (202) 34b-8102 Attorney for Plaintit~, Delta Development Group, Inc. 6 VERIFICATION Understanding that false statements made in this verification are subject to the penalties of 18 Pa. C.S.A. Section 4904 relating to unsworn falsification to authorities, I verify that I am Senior Vice President of Development Services for Delta Development Group, Inc., the plaintiff in the above-captioned matter, and that I am authorized to make this verification on Plaintiffs behalf, and that the facts set forth in the foregoing Complaint are true and correct to the best of my knowledge, information, and belief. Dated:. I ~/,1~ ~~ Arfthony B. Seitz Senior Vice President, Development Services EXHIBIT A Consultant Agreement and Agreement Extension e~ DELTA I DEVELOPMENT ~ GROUP 1 N C . CONSULTANT AGREEMENT THIS AGREEMENT, entered into on this 28th day of February 2006, by and between Delta Development Group, I nc., a Pennsylvania corporation, located at 2000 Technology Parkway, Suite 200, Mechanicsburg, Pennsylvania 17050-9407, hereinafter referred to as "DELTA" and, McHolme Builders, lnc., located at 315 Payday Drive, Elizabeth, Pennsylvania 15037, hereinafter referred to as "CLtENT°. WHEREAS, CLIENT has a need for public funding services for a commercial retail development project in Franklin Township, Greene County, Pennsylvania, the ("Project"); WHEREAS, such public funding services include preparation and implementation of a customized funding strategy targeting state funding sources for eligible on- and off-site infrastructure costs; WHEREAS, DELTA employs personnel with expertise in development, transportation, planning, public funding and project management in Pennsylvania and is duly qualified to be engaged in these businesses; WHEREAS, it is deemed to be to the material advantage of DELTA and CLIENT to agree to the terms and conditions included in this Agreement. NOW THEREFORE, in consideration of the mutual covenants contained herein, and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto, intending to be legally bound, hereby agree as follows: 1. SERVICES. DELTA shall perform the services and duties of a development consultant to the CLIENT including, but not limited to, the following: a. Work with McHolme Builders, inc. to identify project costs, which are eligible for federal and state funding, and to identify funding sources and the corresponding schedules for applications, awards, and availability ! disbursement of funds. b. Prepare a Project Message Statement that illustrates economic and community benefits, project description and phasing plan, funding needs, project schedule, and support from key public stakeholders. 2000 Tachndogy Parkway Suite 200 Mechanicsburg, PA 17050-9407 ~ ' (717}441-9030 Phone Leveraging Ch ~'~e. ~\\ (717) 441.9056 Fax ,~ ; www.dellaone.com c. Hald preliminary meetings with project stakeholders and elected officials to build support and momentum for funding requests. d. Prepare appropriate applications and support materials to implement the funding strategy. 2. NON-EXCLUSIVITY. The parties acknowledge that DELTA may provide similar or identical services to other clients. 3. COMPENSATION. a. The CLIENT will compensate DELTA for the services to be performed under this Agreement on a retainer basis. The monthly base fee shalt be Seven Thousand Five Hundred Dollars ($7,500), plus reasonable and ordinary expenses, as provided for in Paragraph 3(b). The service fee will be billed for a period of eighteen (18) months. b. The CLIENT shall reimburse DELTA for all reasonable and ordinary expenses. Reasonable and ordinary expenses are those related specifically to the services performed and not those incidental to the conduct of general business. Such direct expenses include: transportation costs, subsistence connected with authorized travel, reproduction costs, special supplies, and the like. Any expense in excess of Five Hundred Dollars ($500) shall be subject to approval of the CLIENT. c. The CLIENT will be billed the retainer fee, plus expenses, on a monthly basis. A contract execution fee of Seven Thousand Five Hundred Dollars ($7,500) will be invoiced on the date of execution of this Agreement. Subsequent invoices shat! be mailed the first day of each month beginning March 1, 2006. Any invoices unpaid after thirty {30) days from the date of invoice will be assessed an interest fee of 1.5% per month. DELTA reserves the right to suspend work pursuant to this Agreement should any invoice remain unpaid beyond thirty (30) days after the date of invoice. d. to recognition of its services on behalf of CLIENTS project, DELTA will be paid slump-sum development fee of Fifty Thousand Dollars ($50,000) for every increment of Two Million Dollars ($2,000,000) that is awarded in support of CLIENT's project. The development fee may be invoiced in periodic lump-sum amounts that correspond to multiple funding awards. 2 1. For public funding awards, invoicing would occur as follows: 1) Fifty Percent (5090) of the lump-sum fee would be invoiced upon official notrtication to CLIENT of a funding award, with reasonable contingencies such as compliance with program eligibility requirements and approved scope, from the appropriate administering agency; and 2) Fifty Percent (50%) would be invoiced upon the CLIENT and/or the applicant's execution of a grant agreement with the appropriate administering agency. 4. DEFAULT. Failure to pay invoices within agreed upon terms is a default on this Agreement. Upon written notice of default, the CLIENT will have ten (10) days to remedy said default. GLIENT hereby irrevocably authorizes the Prothonotary or any attorney of any court of record in Pennsylvania or elsewhere to appear for and confess judgment against CLIENT upon a default under this Agreement for any and al[ amounts unpaid on this Agreement, including interest thereon to date of payment together with fees of counsel not to exceed fifteen percent (15°~) of the foregoing and costs of suit, releasing all errors and waiving all rights of appeal. if a copy hereof, verified by affidavit, shall have been filed in such proceeding, it shall not be necessary to file the original as a warrant of attorney. CLIENT hereby waives the right to any stay of execution and the benefit of a(I exemption laws now or hereafter in effect. No single exercise of this warrant and power to confess judgment shall be deemed to exhaust this power, whether or nat any such exercise shall be held by any court to be invalid, voidable or void, but this power shall continue undiminished and may be exercised from time to time as often as DELTA shall elect until all sums due hereunder shall have been paid in full. 13y signing this contract CLIENT gives up right to notice and court trial. if CLIENT does not pay on time, a court judgment may be taken against CLIENT without prior knowledge and the powers of the court can tie used to collect from CLIENT regardless of any claims CLIENT may have against DELTA whether for failure to comply with the agreement, or any other cause. 5. TERM. This Agreement is effective upon execution and shall remain in effect for eighteen {18) months, subject to the termination clause in Paragraph 11, unless extended by both CLIENT and DELTA. After expiration of this Agreemen#, DELTA's obligation to provide further services to CLIENT will be conditioned upon extension of this Agreement or the parties entering into a new agreement for services. 3 ti. PROJECT TEAM AND SU6CONTRACTORS. DELTA team members will be assigned at the direction of the Project Manager and practice area Senior Vice President; and in consultation with the CLIENT. DELTA may add, delete, and substitute personnel on the project as necessary or as may be reasonably requested by CLIENT. DELTA may also enter into a subcontract or subcontracts, subject to the approval of the CLIENT. 7. SINGLE CONTACT PERSON. CLIENT agrees that the sale representative of DELTA for purposes of discussing the fees and expenses charged pursuant to this contrect shall be LeRoy D. Kline, Jr., located at 2000 Technology Parkway, Suite 200, Mechanicsburg, Pennsylvania 17050-9407, and available at (717) 441-9030. 8. DOCUMENTS. Upon completion of this Agreement, all applications and other documents produced by DELTA in connection with this project shall be the sole property of the CLIENT. DELTA shall retain, for not less than one (1) year, all notes, working papers and other materials, as the property of DELTA, with access provided only to the CLIENT and DELTA, unless otherwise provided by this Agreement. 9. COMPLIANCE WITS. Each party agrees to conform to and abide by the laws, rules, regulations, and codes that are binding upon or applicable to it. 10. CONFIDENTIALITY. Unless otherwise instructed by the CLIENT, or otherwise required by the nature of the work performed pursuant to this Agreement, DELTA and its agents, employees, partners, associates, and subcontractors will treat the information received from the CLIENT as confidential information, except that DELTA need not treat any information as confidential if that information is already in the public domain or the infarmation becomes public from any source other than DELTA and its agents, employees, partners and associates. DELTA may disclose confidential information with the consent of the CL{ENT or as required by {aw or by order of a court or administrative agency with competent jurisdiction. This Paragraph shall survive the termination of this Agreement by one (1) year. 11. TERMINATION. a. CLIENT or DELTA may terminate this Agreement at any time with thirty (30) days prior written notice. Upon giving or receiving notice of termination, DELTA shalt cease performing work for CLIENT and shall minimize ordinary and reasonable expenses incurred on behalf of CLIENT. The CLIENT shall be responsible for paying all fees and expenses accrued pursuant to this Agreement before giving or receiving notice of termination, as well as during the thirty (30) day period after notice has been given. 4 b. Should CLIENT terminate this Agreement by providing written notice, DELTA will provide the CLIENT with any report, plan, or physical result of its contracted work which has been completed at the tune CLIENT elects to terminate the Agreement. 12. REMEDIES. a. In the event of default, the parties hereto reserve any and all other remedies available to the parties at law or in equity. b. No provision of this Agreement shall be waived or modified by any failure to insist upon same, or in any other manner whatsoever, other than by express writing duly signed by both parties hereto. 13. OVERNING LAW. This Agreement is governed by the laws of the Commonwealth of Pennsylvania. 14.ORIGINALS. This Agreement is executed in duplicate. CLIENT shall receive an original and DELTA shall receive an original. 15. ENTIRE AGREEMENT: 61NDING EFFECT. This Agreement shall constitute the entire Agreement between the parties and may be modified or amended only by a further written agreement between the parties. This Agreement shall be binding upon the parties hereto and their respective successors and assigns. IN WITNESS WHEREOF, and intending to be legally bound, the parties hereto have signed this Agreement as of the day first referenced above. WARMNG - BY SIGNING THIS PAPER YOU GIVE UP YOUR RIGHT TO NOTICE AND COURT TRIAL. ltF YOU DO NOT PAY ON Tl[ME, A COURT JUDGMENT MAY BE TAKEN AGAINST YOU WITHOUT YOUR PRIOR KNOWLEDGE AND THE POWERS OF THE COURT CAN BE USED TO COLLECT FROM YOU REGARDLESS OF ANY CLAIMS YOU MAY HAVE AGAINST DELTA WHETHER FOR FAILURE TO COMPLY WITH THE AGREEMENT, OR ANY OTHER CAUSE. DELTA DEVELOPMENT GROUP, INC. L Roy D. Kline, P esident 8 CE By: ~~~ Eric R. Clancy Executive tlce President McHolme Builders, Inc. ,y./ c~-'` Norman c oime '~ 5 /1 DELTA I DEVELOPMENT I GROUP 1 N C . September 18, 2007 Norman McHolme McHolme Builders, Inc. 315 Payday Drive Elizabeth, PA 15037 RE: Waynesburg Crossings -Agreement Extension D.06499.00 Dear Norm: This letter outlines the services that Delta Development Group (Delta) will continue to provide McHolme Builders, Inc. (McHolme), as part of the monthly retainer relationship, based upon the original agreement, dated February 28, 2006. As you may recall, the monthly retainer fee specified in Section 3(a) was to continue for a period of eighteen (18) months. Pursuant to your recent communication with Jason Yakelis, there is a need for Delta to extend its monthly retainer arrangement through November 30, 2007, to finalize documentation related to the bond closing for the Waynesburg Crossings Infrastructure and Facilities Improvement Program (IFIP) award. This work includes the following: • Preparation of briefing materials for and attendance at the September and October Greene County Industrial Development Authority (GCIDA) Board Meetings • Facilitation of efforts between the IFIP bond counsel (Stevens & Lee) and the IFIP financing entity (National City) • Continued communications with local and state officials on the Waynesburg Crossings project and IFIP award 2000 Technology Parkway Suite 200 Mechanicsburg, PA 17050-9407 (717)441-9030 Phone (717)441-9056 Fax www.deltaone.com Leveraging Ch -Page2- Norman McHolme September 18, 2007 In accordance with our recent communications, this letter serves to amend the current monthly retainer arrangement, as outlined in Section 3 of the enclosed agreement. The new arrangement will keep the current monthly retainer of Seven Thousand, Five Hundred Dollars ($7,500.00) in effect through November 30, 2007. All other provisions of the enclosed agreement will remain the same, along with the previous agreement on payment of the lump- sum fee invoice ($125,000.001 upon closing on the IFIP financing. By execution of this letter, Delta and McHolme agree to these modifications. Please sign and date both documents and return one in the enclosed self-addressed, stamped envelope. Please do not hesitate to contact me with any questions. Thank you for your consideration. Sincerely, Anthony B. Seitr Senior Vice President As an authorized ofi'fcer or agent of McHolme Builders, Inc., this extension is agreed to and accepted this 28 day of September 2007. By; r~IV M~~.c/~-~c , V SCE- I~,c~-s~oE-vr McHolme Builders, lnc. Enclosures EXHIBIT B Affidavit of Anthony B. Seitz In the Court of Common Pleas of Cumberland County, Pennsylvania Civil Division Delta Development Group, Inc., ) Docket No. Plaintiff ) v. ) McHolme Builders, Inc. ) Defendant ) AFFIDAVIT OF ANTHONY B. SEITZ I, Anthony B. Seitz, being duly sworn, depose and state that: 1. I am Senior Vice President, Development Services, of Delta Development Group, Inc., the plaintiff in this action, and am authorized to make this affidavit on its behalf. 2. Attached as Exhibit "A" is a true and correct copy of the Consultant Agreement duly executed by McHolme Builders, Inc. Dated: ~ G D 9 Anthony B. Seitz Sworn to and subscribed before me this (0~ day of , 2009. NOTARY PUBLIC CON11410NWFJIL.TH OF PENNSYL' Nobrlai Seal TeM E Bubb, NoleryPibfc 6ast.Peirrbau Twp., Qnibede~d Oovr~r My Oannnbtbn Eepkee Sept 17. ZUt1 Mertibx, PennaNvsi±s4~ Aseociatbn d Nobs EXHIBIT C Invoices ~11V IC@ uelta Development Group, Inc. 2000 Technology Parkway Mechanicsburg, PA 17050-8407 ~: ~~`~' ..a uz June 28, 2007 Project No: D.06499.00 Invoice No: 0000018 McHolme Builders, Inc. Brian P. McGurk 315 Payday Drive Elizabeth, PA 15037 Project D.06499.00 McHolme-Franklin Township Commercial retail development project in Franklin Township, Greene County. Award Notification Grant Agreement Total This Invoice $ 62,500.00 $ 62,500.00 $125,000.00 PAYMENT DUE UPON RECEIPT. PLEASE RETURN A COPY OF THE INVOICE WITH YOUR PAYMENT. FOR QUESTIONS CALL ~~ DELTA DEVELOPMENT GROUP McHolme Builders, Inc. Brian P. McGurk 315 Payday Drive Elizabeth, PA 15037 Delta Development Group, lnc. 2000 Technology Parkway, Suite 200 Mechanicsburg, PA 17050-9407 August 31, 2007 Project No: D.06499.00 y 1 Invoice No: 0000021 Project D.06499.00 McHolme-Franklin Township Commercial retail development project in Franklin Township, Greene County. Professional Services from August 1, 2007 to August 31, 2007 Fee 7,500.00 Reimbursable Expenses Travel and Lodging 319.39 Meais 8 Refreshments 41.08 Postage /Shipping !Delivery 24.01 Interest of 1.5% of $7,851.15 . {balance over 30 days) 117.77 Total Reimbursables 502.25 502.25 Total this Invoice $8,002.25 Outstanding Invoices Number Date Balance 0000018 6/28/07 125,000.00 0000019 6/30/07 7,651.15 0000020 7/31/07 7,991.71 Total 140,842.86 Total Now Due $148,845.11 ~~ DELTA DEVELOPMENT I GROUP ~ H c . McHolme Builders, Inc. Brian P. McGurk 315 Payday Drive Elizabeth, PA 15037 Delta Development Group, Inc. 2000 Technology Parkway, Suite 200 Mechanicsburg, PA 17050-9407 September 30, 2007 Project No: D.06499.00 Invoice No: 0000022 Project D.06499.00 McHolme-Franklin Township Commercial retail development project in Franklin Township, Greene County. Professional Services from September 1.2007 to September 30, 2007 Fee Reimbursable Expenses Travel and Lodging Meals & Refreshments Misc. Reimbursable Expenses Total Reimbursabtes :.. -~~ "~ tr~ 7,500.00 585.24 13.42 8.58 607.24 607.24 Total this Invoice 38,107.24 Outstanding Invoices Number 0000018 0000020 0000021 Total Date Balance 6128/07 125,000.00 7/31/07 7,991.71 8/31/07 8,002.25 140,993.96 Total Now Due 3149,101.20 PAYMENT DUE UPON RECEIPT. PLEASE RETURN A COPY OF THE INVOICE WITH YOUR PAYMENT. FOR QUESTIONS CALL SANDY HEfDINGSFELDER (~ 717-441-9030. /_\ DELTA ~ DEVELOPMENT I GROUP 1 N C . McHolme Builders, Inc. Brian P. McGurk 315 Payday Drive Elizabeth, PA 15037 Delta Development Group, inc. 2000 Technology Parkway, Suite 200 Mechanicsburg, PA 17050-9407 October 31, 2007 Project No: D.06499.00 Invoice No: 0000023 Project D.06499.00 McHolme-Franklin Township Commercial retail development project in Franklin Township, Greene County. Professions Services from October 1.2007 to October 31.2007 Fee Reimbursable Expenses Travel and Lodging Meals & Refreshments Misc. Reimbursable Expenses Total Reimbursables 7,500.00 126.40 24.64 4.29 155.33 155.33 Total this Invoice ;7,655.33 Outstanding Invoices Number 0000018 0000021 0000022 Total Date Balance 6/28107 125,000.00 8/31/07 8,002.25 9/30/07 8,107.24 141,109.49 Total Now Dus E148,764.82 PAYMENT DUE UPON RECEIPT. PLEASE RETURN A COPY OF THE INVOICE WITH YOUR PAYMENT. FOR QUESTIONS CALL SANDY HEIDINGSFELDER t~ 717-441-9030. /\ DELTA ! DEVELOPMENT I GROUP 1 N C . McHolme Builders, Inc. Brian P. McGurk 315 Payday Drive Elizabeth, PA 15037 Delta Development Group, Inc. 2000 Technology Parkway, Suite 200 Mechanicsburg, PA 17050-9407 November 30, 2007 Project No: D.06499.00 Invoice No: 0000024 Project D.06499.00 " McHolme-Franklin Township Commercial retail development project in Franklin Township, Greene County. Professional Services from November 1 2007 to November 30 2007 Fee Reimbursable Expenses Travel and Lodging Misc. Reimbursable Expenses Total Reimbursables Outstanding invoices Number Date Balance 0000018 6/28/07 125,000.00 0000021 8/31/07 8,002.25 0000022 9130/07 8,107.24 0000023 10/31/07 7,655.33 Total 148,764.82 ~~, :~ 7,500.00 213.33 35.43 248.76 248.76 Total this Invoice E7,748.76 Total Now Due E156,513.58 PAYMENT DUE UPON RECEIPT. PLEASE RETURN A COPY OF THE INVOICE WITH YOUR PAYMENT, FOR QUESTIONS CALL CONIIV 41CI~11N(:CFF! f1FR (AI 717~d1-A(1~ EXHIBIT D Demand Letter DEWEY ~t I,EBOEUF Dewey & LeBoeuf LLP 1101 New York Avenue, NW Suite 1100 Washington, DC 20005-4213 tel +1 202 346 8154 fax +1 202 956 3281 mkleinC~dl.com BY FEDERAL EXPRESS Norman McHolme McHolme Builders, Inc. 315 Payday Drive Elizabeth, PA 15037 November 11, 2008 Re: Delta Development Group, Inc. -Project No. D.06499.00 Dear Mr. McHolme: On February 28, 2006, you entered into a contract on behalf of McHolme Builders, Inc. ("McHolme") with Delta Development Group, Inc ("Delta"). The contract was for Delta's services as a development consultant. Delta has performed the development consultant services per the terms of the contract. The agreement provided for payment of a development fee in the amount of $125,000. In the agreement, 50 % of the development fee was to be provided upon official notification of the funding award. An additional 50 % was to be provided upon execution of a grant agreement. At your request, Delta deferred the development service payment of $125,000 until the closing of Infrastructure and Facilities Improvement Program ("IFIP") financing. You assured Delta that a final payment would be provided with your receipt of the first installment of the IFIP funds. Delta has confirmed that you received the first installment on October 7, 2008. With deferred retainer payments from August 2007 to November 2007, the final invoice for services provided by Delta to McHolme is $156,513.58. We have been authorized by Delta to institute legal action against McHolme for breach of contract. With respect to such action, I call your attention to the confession of judgment language in your contract with Delta. We, along with our client, would like to avoid such action. We are willing to work with McHolme to develop a reasonable payment arrangement. Please N E WYORKI LONDONMV LTINATIONALPARTNERSHIPI WASHIN GTON, DC ALBANYI/>LMATYIAUSTIN~BEIJING~BOSTON~BRUSSELS~CHARLOTTEICHICAGO~DUBAI FRANKFURT~HARTFORD~HONGKONGIHOUSTON~JACKSONVILLE~JOHANNESBURG (PTV)LTD. ~ LOSANGELES MILAN ~ MOSCOW PARISMULTINATIDNALPARTNER$HIP I RIYADHAFFILIATEDDFFICE ~ ROME ~ SANFRANCISCO ~ SILICON VALLEY ~ WARSAW respond to this letter within 15 days or we will find it necessary to institute legal action on behalf of our client, Delta Development Group, Inc. Sincerely, I~~~~~1~ Michael D. Klein FedEx Express U.S. Mail: PO Box 727 Customer Support Trace Memphis, TN 38194-4643 ,<<:: 3875 Airways Boulevard Module H, 4th Floor Telephone: 901-369-3600 Memphis, TN 38116 November 12,2008 Dear Customer: The following is the proof-of-delivery for tracking number 937192591817. Delivery Information: Status: Delivered Delivery date: Nov 12, 2008 09:39 Signed for by: T.SHUTY Service type: Priority Envelope Shipping Information: Tracking number. 937192591817 Ship date: Nov 11, 2008 Redpient: Shipper. Thank you for choosing FedEx Express. FedEx Worldwide Customer Service 1.800.GoFedEx 1.800.463.3339 N ~ .~.,,., '~ Q ~ ~ `~ v` ^ V ~. ~ N `~ ~"~ P ~. _J ~ ~ ~' i, ';.. ~:., <.~ ~~ '7 "~ In the Court of Common Pleas of Cumberland County, Pennsylvania Civil Division Delta Development Group, Inc., ) Docket No. ~ 4 ^ 3 s~ ~ I v ~ ~ ` ~1Z./'/l Plaintiff ) v. McHolme Builders, Inc. Defendant ) NOTICE TO: McHolme Builders, Inc. 315 Payday Drive Elizabeth, Pennsylvania 15037 Pursuant to Pa. R.C.P. 236, you are hereby notified that judgment by confession has been entered against you in the above captioned matter. Date: Prothonotary If you have any questions concerning this notice, please contact Michael D. Klein, attorney for Plaintiff, at this telephone number: (202) 346-8154 or this address: Michael D. Klein, Dewey & LeBoeuf LLP, 1101 New York Avenue, NW, Washington, DC 20005.