Loading...
HomeMy WebLinkAbout11-2178Jordan D. Cunningham, Esquire Cunningham & Chernicoff, P.C. P.O. Box 60457 Harrisburg, PA 17106-0457 Telephone: 717-238-6570 Facsimile: 717-238-4809 Email: icunninpham(a_cclawnc.com LSC REAL ESTATE PARTNERSHIP, IN THE COURT OF COMMON PLEAS Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA t?"g ram„ V. NO. LEMOYNE SLEEPER CO., INC., Defendant -r CONFESSION OF JUDGMENT ,. 15 _ C Pursuant to the Warrant of Attorney contained in the Lease Agreement and the-_ a Amendment of the Original Lease Agreement, true and correct copies of which are attached to the Complaint in Confession of Judgment as Exhibit "A" filed in this action, I appear for the Defendant, Lemoyne Sleeper Co., Inc., and confess judgment in ejectment in favor of the Plaintiff, LSC Real Estate Partnership, and against the Defendant for possession of the real property described as 57 South 3`d Street, Lemoyne, Cumberland County, Pennsylvania, 17043. Pursuant to the Warrant of Attorney contained in the Lease Agreement and the Amendment of the Original Lease Agreement, true and correct copies of which are attached to the Complaint in Confession of Judgment as Exhibit "A" filed in this action, I appear for the Defendant, Lemoyne Sleeper Co., Inc., and confess judgment in favor of the Plaintiff, LSC Real Estate Partnership, and against the Defendant in the amount of $ Aws,S$ as set forth more fully in the Complaint in Confession of Judgment. COFF, P.C. Date: a i l <? By: Jordaef D. Cunningham, Esquire PA Supreme Court I.D. No. 23144 P.O. Box 60457 Harrisburg, PA 17106-0457 Telephone: 717-238-6570 e, CO Jordan D. Cunningham, Esquire FA. ?*' ' l Cunningham & Chernicoff, P.C. J9t_ P.O. Box 60457 Harrisburg, PA 17106-0457 Telephone: 717-238-6570 Facsimile: 717-238-4809 Email: icunningharnAcclawyc.com LSC REAL ESTATE PARTNERSHIP, IN THE COURT OF COMMON PLEAS Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA V. NO. 11-2178 LEMOYNE SLEEPER CO., INC., Defendant CONFESSION OF JUDGMENT Pursuant to the Warrant of Attorney contained in the Lease Agreement and the Amendment of the Original Lease Agreement, true and correct copies of which are attached to the Complaint in Confession of Judgment as Exhibit "A" filed in this action, I appear for the Defendant, Lemoyne Sleeper Co., Inc., and confess judgment in ejectment in favor of the Plaintiff, LSC Real Estate Partnership, and against the Defendant for possession of the real property described as 57 South 3`d Street, Lemoyne, Cumberland County, Pennsylvania, 17043. C Date: By: COFF, P.C. Jor anGl3. rffiingham, Esquire Supr e Court I.D. No. 23144 P.O. Box 60457 Harrisburg, PA 17106-0457 Telephone: 717-238-6570 LSC REAL ESTATE PARTNERSHIP, Plaintiff V. LEMOYNE SLEEPER CO., INC., Defendant Jordan D. Cunningham, Esquire Cunningham & Chernicoff, P.C. P.O. Box 60457 Harrisburg, PA 17106-0457 Telephone: 717-238-6570 Facsimile: 717-238-4809 Email: jcunningham&cclq_nc.com , -c IN THE COURT OF COMMdkj'P4T AS'. `; :r' CUMBERLAND COUNTY, 771 PENNSYLVANIA. r NO. COMPLAINT FOR CONFESSION OF JUDGMENT AND NOW, comes Plaintiff, LSC Real Estate Partnership, by and through its counsel, Cunningham & Chernicoff, P.C., and complain of Lemoyne Sleeper Co., Inc., as follows: 1. Plaintiff, LSC Real Estate Partnership (hereinafter referred to as "Plaintiff'), is a Pennsylvania general partnership with a business address of 4218 Prosperous Drive, Harrisburg, Dauphin County, Pennsylvania. 2. Defendant, Lemoyne Sleeper Co., Inc. (hereinafter referred to as "Defendant") is a Pennsylvania corporation with a registered address of 57 South 3rd Street, Lemoyne, Cumberland County, Pennsylvania. 3. On November 1, 1998, Defendant, as lessee, entered into an Amended and Restated Commercial Lease Agreement (hereinafter referred to as "Lease Agreement") with Plaintiff, as lessor, for the lease of a store outlet and factory known as 57 South 3rd Street, Lemoyne, Cumberland County, Pennsylvania 17043 (hereinafter referred to as "Leased Premises"). On January 26, 2009, the Lease was amended, which amendment modified the term and rent to be paid pursuant to the Lease Agreement. A true and correct copy of the Lease Agreement and the Amendment to the Lease Agreement is attached hereto, made part hereof, is incorporated by reference herein, and marked as "Exhibit A". 4. The Lease Agreement obligates the Defendant to pay (i) rent; (ii) late charges; (iii) real estate taxes; (iv) utilities; (v) insurance; and (vi) reasonable attorneys fees as part of the damages in the event of default (hereinafter collectively referred to as "Rental Charges") 5. Defendant has defaulted, by among other things, failing and refusing to pay the Rental Charges. 6. Written notice of default was sent to Defendant by letter dated November 24, 2010. A true and correct copy of the Plaintiff's written notice of default, dated November 24, 2010, is attached hereto, made part hereof, is incorporated by reference herein, and is marked as "Exhibit B". 7. Defendant has failed and refused to timely cure the defaults of which it was notified by Plaintiff's notice of default dated November 24, 2010. 8. On January 6, 2011, Plaintiff terminated the Lease Agreement as a result of Defendant's failure to cure its default. A true and correct copy of the Plaintiff's written notice of termination, dated January 6, 2011, is attached hereto, made part hereof, is incorporated by reference herein, and is marked as "Exhibit U. 9. The Lease Agreement and Amendment to Lease Agreement upon which judgment is being confessed were for commercial and not residential purposes, and were freely negotiated by the parties thereto. 2 10. No assignment of the Lease Agreement and Amendment to Lease Agreement has been made since Defendant assumed responsibility for the Leased Premises. COUNT I - CONFESSION OF JUDGMENT IN EJECTMENT 11. Plaintiff re-alleges and avers the facts set forth in Paragraph 1-10 above as if more fully set forth herein. 12. Plaintiff has not confessed judgment in ejectment against Defendant in any jurisdiction. 13. Plaintiff is authorized to confess judgment in ejectment against Defendant for possession of the Leased Premises by Warrants of Attorney contained in Paragraph 20(a) of the Lease Agreement and for failure to cure the default. 14. Judgment in Ejectment is demanded as authorized by the Warrants of Attorney contained in Paragraph 20(c) of the Lease Agreement. 15. The Warrants of Attorney appearing in Paragraphs 20(a) and (c) of the Lease Agreement are less than twenty (20) years old. WHEREFORE, Plaintiff LSC Real Estate Partnership respectfully requests this Honorable Court to enter judgment in ejectment in favor of Plaintiff, LSC Real Estate Partnership and against Defendant, Lemoyne Sleeper Co., Inc., for immediate possession of the Leased Premises located at 57 South 3`d Street, Lemoyne, Cumberland County, Pennsylvania, 17043 as authorized by the Warrants of Attorney appearing in Paragraph 20(c) of the Lease Agreement. COUNT II - CONFESSION OF JUDGMENT FOR LOSS OF RENTAL INCOME 16. The averments of Paragraphs 1-15 of the Complaint are incorporated herein by reference as if more fully set forth herein. 17. Plaintiff has not confessed monetary judgment against Defendant in any jurisdiction. 18. Plaintiff is authorized to confess judgment against Defendant for monetary damages by the Warrants of Attorney contained in Paragraph 20(a) of the Lease Agreement for failure to cure the defaults. 19. Defendant is liable to Plaintiff for the unpaid Rental Charges as set forth more fully in the Statement of Unpaid Rent which is attached hereto as Exhibit "D" and incorporated by reference, plus costs of suit. 20. By the express terms of the Lease Agreement and Amendment of Lease Agreement, Plaintiff is entitled to reasonable attorneys fees which are estimated to be $21,000.00. 21. As a result, Defendant is liable to Plaintiff in the total amount of $288,832.88 for Rental Charges and attorney's fees, plus cost of suit. 22. Judgment is demanded as authorized by the Warrants of Attorney contained in Paragraph 20(c) of the Lease Agreement. 23. The Warrants of Attorney appearing in Paragraph 20(c) of the Lease Agreement is less than twenty (20) years old. 4 WHEREFORE, Plaintiff, LSC Real Estate Partnership, respectfully requests this Honorable Court to enter judgment in favor of Plaintiff, LSC Real Estate Partnership, and against Defendant, Lemoyne Sleeper Co., Inc., in the total amount of $288,838.88, together with interest accruing at the legal rate, plus costs of suit. Date: '?A 11("411 By: Respectfully submitted, CUNNIN COFF, P.C. 06rd'9d D. Cunningham, Esquire PA Supreme Court I.D. No. 23144 P.O. Box 60457 Harrisburg, PA 17106-0457 Telephone: 717-238-6570 F:\Home\AHEWITT\DOCSU-L\LEMOYNE\RENT ABATEMENT & DEFAULT MATTER\Complaint 021611.wpd Exhibit "A " Orlgh n Coro eM2681.2 Date: ? Initials:' AMENDED RIND RESTATED COMMERCIAL LEASE This lease originally made the 26th day of September, 1997, and amended and restated this 1St day of November, 1998, between LSC REAL ESTATE PARTNERSHIP, a Pennsylvania general partnership with its principal place of business located at 57 South Third Street (Third Street and Bosler Avenue), Lemoyne, Cumberland, Pennsylvania 1704; consisting of Gerald Pearlman and Martin I. Lowy, herein called Lessor, and LEMOYNE SLEEPER CO., INC., a Pennsylvania business corporation, with its principal place of business located at Third Street and Bosler Avenue, Lemoyne, Cumberland, Pennsylvania 17043, herein called Lessee. 1. Premises: Lessee hereby leases from Lessor the premises situated in Borough of Lemoyne, County of Cumberland, State of Pennsylvania, described as a portion of Third Street and Bosler Avenue as more particularly described on Exhibit "A" attached hereto upon the following TERMS and CONDITIONS: 2. Term and Rent. Lessor demises the above premises for a term of Ten (10) years, commencing September 29, 1997 and terminating on September 30, 2007, or sooner as provided herein payable as follows: a. Year 1: an annual base rental of One Hundred Twenty-eight Thousand Four Hundred Dollars ($128,400.00) payable in equal installments of Eleven Thousand Dollars ($11,000.00) in advance on the first day of each month for that month's rental, during the first ten (10) months of the first year of this Lease and Fourteen Thousand Seven Hundred Dollars ($14,700.00) during the last two months (August and September, 1998) of the first year of this Lease. Rent shall be prorated for the first month of this Lease. b. Year 2: an annual base rental of One Hundred Eight-five Thousand Four Hundred Dollars ($185,400.00) payable in equal installments of Fourteen Thousand Seven Hundred Dollars ($14,700.00) in advance on the first day of each month for that month's rental, during the first two (2) months (October and November, 1998) of the second year of this Lease and Fifteen Thousand Six Hundred Dollars ($15,600.00) during thelast ten months (December, 1998; January, February, March, April, May, June, July, August, and September, 1999) of the second year of this Lease. C. Years 3 through 10: an annual base rental of One Hundred Eight-seven Thousand Two Hundred Dollars ($187,200.00) payable in equal installments of Fifteen Thousand Six Hundred Dollars ($15,600.00) in advance on the first day of each month for that month's rental of the fourth through tenth years of this Lease. d. Commencing the second anniversary of this Lease, the above rents shall be adjusted annually effective with the October, 1999 rent proportionately to C:1GKS21LEMOYNa 12681.2 the same extent the United States All Items Index of the All Urban Consumers (CPI-U) (1982-1984=100) has increased over the latest All Items Index that was available at the execution of This Lease, namely 160.8 (This is the August, 1997 Index which was released by the U.S. Bureau of Labor Statistics in September, 1997). The CPI-U released in September of the year in which the rent adjustment is to take effect shall be used to compute the adjustment. All rental payments shall be made to Lessor, at the address specified above. 3. Additional Rent: All utilities charges, insurance premiums, and real estate taxes required to be paid by Lessee shall be deemed Additional Rent due under this Lease. In the event that Lessee does not pay such Additional Rent, Lessor may collect the same together with the Late Charges and Interest due under this Lease. Lessor may also, at its sole option, pay such Additional Rent and collect the same together with the Late Charges and Interest due under this Lease. 4. Late Payments. If payment is not made by within five (5) days after it is due, the Lessee shall also pay a late charge equal to five percent (51,10) of the unpaid Rent and other sums due under this Lease. In addition, Lessee shall pay interest at Eighteen percent (18%) per year on the remaining unpaid balance, retrocative to the date originally due until paid. 7. Use. Lessee may use and occupy the premises for any lawful purpose. 6. Repairs and Maintenance of Premises. This is a net lease under which the Lessee pays all repairs, replacements and maintenance. 7. Alterations. Lessee shall not, without first obtaining the written consent of Lessor, make any alterations, additions, or improvements, in, to or about the premises. 8. Ordinances and Statutes. Lessee shall comply with all statutes, ordinances and requirements of all municipal, state and federal authorities now in force, or which may hereafter be in force, pertaining to the premises, occasioned by or affecting the use thereof by Lessee. 9. Assignment and Subletting. Lessee shall not assign this lease or sublet any portion of the premises without prior written consent of the Lessor, which shall not be unreasonably withheld. Any such assignment or subletting without consent shall be void and, at the option of the Lessor, may terminate this lease. 10. Utilities. Lessee shall pay for all utilities. 11. Real Estate Taxes. Lessee shall pay for all ad valorem taxes imposed upon the premises. 2 CAGKS21,LEMOYNE112681.2 12. Entry and Inspection. Lessee shall permit Lessor or Lessor's agents to enter upon the premises at reasonable times and upon reasonable notice, for the purpose of inspecting the same, and will permit Lessor at an}, time within sixty (60) days prior to the expiration of this lease, to place upon the premises any usual "To Let" or "For Lease" signs, and permit persons desiring to lease the same to inspect the premises thereafter. 13. Possession. If Lessor is unable to deliver possession of the premises at the commencement hereof, Lessor shall not be liable for any damage caused thereby, and shall this lease shall be voidable at the option of the Lessee, and Lessee shall not be liable for any rent until possession is delivered. Lessee may terminate this lease if possession is not delivered within ten days of the commencement of the term hereof. 14. Indemnification of Lessor. Lessor shall not be liable for any damage or injury to Lessee, or any other person, or to any property, occurring on the demised premises or any part thereof, and Lessee agrees to hold Lessor harmless from any claim for damages, no matter how caused. 15. Insurance. Lessee shall maintain all insurance on the Property including public liability and property insurance and shall have the Lessor named as an Additional Insured on the Po.licv, 16. Eminent Domain. If the premises or any part thereof or any estate therein, or any other part of the building materially affecting Lessee's use of the premise, shall be taken by eminent domain, this lease shall terminate on the date when title vests pursuant to such taking. The rent, and any additional rent, shall be apportioned as of the termination date, and any rent paid for any period beyond that date shall be repaid to Lessee. Lessee shall not be entitled to any part of the award for such taking or any payment in lieu thereof, but Lessee may file a claim for any taking of fixtures and improvements owned by Lessee, and for moving expenses. 17. Destruction of Premises. In the event of a partial destruction of the premises during the term hereof, from any cause, Lessor using the proceeds of the insurance described in Paragraph 1 I shall forthwith repair the same, provided that such repairs can be made within sixty (60) days under existing governmental laws and regulations, but such partial destruction shall not terminate this lease, except that Lessee shall be entitled to a proportionate reduction of rent while such repairs are being made unless Lessee's rent is covered by insurance, based upon the extent to which the making of such repairs shall interfere with the business of Lessee on the premises. If such repairs cannot be made within said sixty (60) days, Lessor, at its option, may make the same within a reasonable time, this lease continuing in effect with the rent proportionately abated as aforesaid, and in the event that Lessor shall not elect to make such repairs which cannot be made within sixty (60) days, this lease may be terminated at the option of either party. In the event that the building in which the demised premises may be situated is destroyed to an extent of not less than one-third of the replacement costs thereof, Lessor may elect to terminate this lease whether the demised premises be injured or not. A total destruction 3 C:1GKS21LEM OYN E112631.2 of the buildinc, in which the premises may be situated shall terminate this lease. 18. Lessor's Remedies on Default. If Lessee defaults in the payment of rent, or any additional rent, or defaults in the performance of any of the other covenants or conditions hereof, Lessor may give Lessee notice of such default and if Lessee does not cure any such default within ten (10) days, after the giving of such notice (or if such other default is of such nature that it cannot be completely cured within such period, if Lessee does not commence such curing within such thirty (30) days and thereafter proceed with reasonable diligence and in good faith to cure such default), then Lessor may terminate this lease on not less than ten (10) days' notice to Lessee. On the date specified in such notice the term of this lease shall terminate, and Lessee shall then quit and surrender the premises to Lessor, but Lessee shall remain liable as hereinafter provided. If this lease shall have been so terminated by Lessor, Lessor may at any time thereafter resume possession of the premises by any lawful means and remove Lessee or other occupants and their effects. No failure to enforce any term shall be deemed a waiver. 19. Attorney's Fees. In case suit should be brought for recovery of the premises, or for any sum due hereunder, or because of any act which may arise out of the possession of the premises, by either party, the prevailing party shall be entitled to all costs incurred in connection with such action, including a reasonable attorney's fee. 20. Confession of Judament. a. In addition to the remedies available as stated above, if Lessee defaults hereunder, Lessee hereby empowers any prothonotary or any attorney of any court of record within the Commonwealth of Pennsylvania or elsewhere to appear for Lessee, and, with or without complaint filed, to confess judgment against Lessee and in favor of Lessor, or any other holder of this Lease, for the sums owed by Lessee or for any default on the part of Lessee, pursuant to the terms of this Lease, with interest thereon, costs of suit and reasonable attorney's fees, upon which judgment(s), one or more executions may issue forthwith, upon failure to comply with any of the terms or conditions of this Lease. b. Lessee hereby waives and releases all errors in said proceeding, stay of execution, any right of inquisition, and any extension of time of payment. 4n affidavit filed by any authorized representative of Lessor shall be conclusive evidence of Lessee's default hereunder. No single exercise of the foregoing power to confess judgment shall be deemed to exhaust the power whether or not any such exercise shall be held by any court to be invalid, avoidable or void, but judgment may be confessed as aforesaid from time to time as often as any of said rent or other charge shall fall due or be in arrears, and such powers may be exercised as well after the expiration of the original tern and during any extension or renewal of this 4 C:1GKS21L.EMOYN E112681.2 Lease. When this Lease shall be determined by condition broken, either during the original term of this Lease or any renewal or extension thereof, and also when, and as soon as, the term hereby created or any extension thereof shall have expired, it shall be lawful for any attorney, as attorney for Lessee, to file a confession of judgment in ejectment in any competent court and against Lessee and for and against all persons claiming under Lessee, for the recovery by Lessor of possession of the Premises for which this Lease shall be sufficient warranty, whereupon, if Lessor so desires a writ of possession may issue forthwith, without any prior proceedings whatsoever; and, provided that, if for any reason, after such action shall have been commenced and same shall be determined and the possession of the Premises remains in or thereby be restored to Lessee, Lessor shall have the right upon any future default or defaults whereupon the termination of this Lease as herein set forth, to bring one or more action or actions for confession of judgment in ejectment as herein set forth, to recover possession of the Premises or any part thereof. d. In any action of ejectment, Lessor shall first cause to be filed an affidavit made by it or on by someone for it and on behalf, setting forth the facts necessary to authorize the entry of judgment, of which facts such affidavit shall be conclusive evidence. If a true copy of this Lease is filed in such action, it shall not be necessary to file the original, as a warranty of attorney, any rule of court, custom, or practice to the contrary. 21. Notices. Any notice which either party may, or is required to give, shall be given by mailing the same, postage prepaid, to Lessee at the premises, or Lessor at the address first written, or at such other places as may be designated by the parties from time to time. 22. Heirs, Assigns, Successors. This lease is binding upon and inures to the benefit of the heirs, assigns and successors in interest to the parties. 23. Subordination. This lease is and shall be subordinated to all existing and future mortgages against the property, provided the lender executes a Agreement of Subordination and Attornment reasonably satisfactory to Lessee. 24. Entire Agreement. The foregoing constitutes the entire agreement between the parties and may be modified only by a writing signed by both parties. The following Exhibits, if CAGKS21LEMOYNEI 126,11.2 any, have been made a part of this lease before the parties' execution hereof: Exhibit "A" Description of Leased Premises. In witness whereof, the parties have executed this Lease the day and date first above written. e L4ral?d LEEPER ., INC. B earlman President Attest:, ? Martin I. Lowy Assistant Secretary LSC REAL ESTATE PAR RSHIP r By: erald Pear an General Partner Martin I. Lowy General Partner CAGKS21LEMOYNEI 12681.2 EXHIBIT "A" All that certain tract or parcel of land with the building and improvements thereon, erected situate in the Borough of Lemoyne, Cumberland County, Pennsylvania, more particularly bounded and described in accordance with a survey prepared by Whittock-Hartman, Registered Professional Engineers, as filed to No. L, Drawing. 87-1, N.B., 849, as follows. to wit: BEGINNING at n point, said point being an X-mark on the right-of-way intersection of the northern right-of-way line of Bosler Avenue and the western right-of-way line of Third Street; thence along the said northern right-of-way line of Bosler Avenue, South 61 degrees 25 minutes seconds West, a distance of 465.50 feet to an iron pin; thence along land of Manbeck Baking Company, North 28 degrees 53 minutes 30 seconds West, a distance of 177.28 feet to an iron pin; thence North 64 degrees; 38 minutes 46 seconds East, a distance of 88.22 feet to an iron pin; thence North 29 degrees 17 minutes 50 seconds West, a distance of 72.23 feet to an iron pin; thence along land now or late of Conrail, North 63 degrees 43 minutes 15 seconds East, a distance of 378.35 feet to an iron pin; thence along the western right-of-way line of Third Street, South 28 degrees 53 minutes 30 seconds East, a distance of 226.82 ft. to an X-mark being the point and place of BEGINNING. Said description contains two (2) tracts and contains 104,250.07 square feet or 2.3933 acres. Having erected thereon an office, warehouse and retail store known and number as 57 South Third Street, Lemoyne, Pennsylvania. BEING the same premises that Anchor Investors, a Pennsylvania general partnership, by its deed dated September 29, 1997, and recorded on October 1, 1997, in the Office of the Recorder of Deeds in and for Cumberland County, Pennsylvania in Record/Deed Book 165, Page 334, granted and conveyed to LSC Real Estate Partnership, the Lessor herein. 7 AMENDMENT TO ORIGINAL COMMERCIAL LEASE AGREEMENT THIS AMENDMENT TO THE ORIGINAL COMMERCIAL LEASE AGREEMENT (Lease), dated September, 1997, is made this 26th day of January, 2006, by and between LSC Real Estate Partnership (Landlord) and Lemoyne Sleeper Company, Inc. (Tenant). NOW THEREFORE, IN CONSIDERATION, of the Landlord entering into the Commercial Lease Agreement with Tenant, the independent promises and covenants of each to the other and the rent reserved, and intending to be legally bound, Landlord and Tenant enter into this Amendment to the Commercial Lease Agreement as follows: Landlord and Tenant, upon signing this Amendment, agree that the ten (10) year term of the original Commercial Lease Agreement is hereby modified and amended to terminate effective September 30, 2006. The parties agree to a new term of five (5) years beginning the P1 day of October, 2006, and ending on the 3081 day of September, 2011. After the initial term ends, the Tenant shall have the option to extend the Lease for an additional five (5) years upon the same terms and conditions with the exception of rent which will be negotiated. Tenants must give written notice of its intent to exercise the option on or before July 1, 2010 and the new rent must be agreed upon in writing on or before October 1, 2010 and if notagreed upon by October 1, 2010, the option shall become null and void. If Page 1 of 3 the option is not exercised or if the option is exercised and the parties do not reach an agreement as to the rent, in that event, the Agreement will continue for successive terms of one month each unless or until terminated according to the terms and conditions of the Commercial Lease Agreement. Landlord and Tenant agree that upon signing this Amendment, the rent escalation clause of the original lease is terminated. Effective October 1, 2006, the yearly rent shall be $233,700.00 for the period of October 1, 2006 through September 1, 2009, payable in monthly payments of $19,475.00 for the leased premises. The yearly rent for the period of October 1, 2009 through September 30, 2010 shall be $240,711.00, payable in monthly installments of $20,039.25. The yearly rent for the period of October 1, 2010 through September 31, 2011 shall be $247,932.30, payable in monthly installments of $20,661.03. Terms and conditions of the on final Lease A Bement: The remaining terms and conditions of the original Commercial Lease Agreement are hereby restated and incorporated herein by reference as if more fully set forth herein. It is the intention of the parties that each of the terms of the original Commercial Lease Agreement shall remain valid and binding and in full force and effect except for those terms specifically modified by this Amendment Agreement. Page 2 of 3 IN WITNESS WHEREOF, the parties have set their hands and seals as of the day and year first set forth above. TENANT: LEMOYNE SLEEPER COMPANY, INC. By: LANDLORD: `LSC RE L ESTATE PARTNERSHIP By: L MARTIN I. LOWY THE / w- By: F:UHOMEWHEWIrrxDOCSU-L\LEMOYNEU.CSRLESN EASRENW. WPD AMILY TRUST GHAM, ESQUIRE Page 3 of 3 Exhibit "B" JORDAN D. CUNNINGHAM ROBERT E. CHERNICOFF MARC W. WITZIG BRUCE J. WARSHAWSKY KELLYM. KNIGHT TRACY L. UPDIKE CUNNINGHAM & CHERNICOFF, P.C. ATTORNEYS AT LAW P.O. Box 60457 HARRISBURG, PA 17106-0457 TELEPHONE: (717) 238-6570 FAx: (717) 238-4809 November 24, 2010 PERSONAL & CONFIDENTIAL Lemoyne Sleeper 57 South 3`a Street P.O. Box 227 Lemoyne, PA 17043-0227 Attn.: Jeff Glessner, CFO Re: November 2010 Rent Our File No. 419908 Dear Mr. Glessner: HERSHEY TELEPHONE (717) 534-2833 IRS No. 23-2274135 STREET ADDRESS: 2320 NORTH SECOND STREET HARRISBURG, PA 17110 The purpose of this letter is to place you on notice that Lemoyne Sleeper has failed to pay November 2010 rent. Rent is due and owing immediately. Moreover, Lemoyne Sleeper has a rent arrearage of $212,720.38. Further failure to pay rent and failure to pay rent in a timely is a substantial violation of the Lease. Lemoyne Sleeper, pursuant to Paragraph 18 of the Amended Lease of September 26, 1997 has 10 days in which to pay not only November 2010 rent but also the remaining rent arrearage. Failure to pay both November 2010 rent and the remaining rent arrearage within 10 days of the date of this letter will result in a notice of termination of the lease. Very truly yours, CHERNICOFF, P.C. D. Cunningham JDC/alh cc: LSC Real Estate Partnership c/o Martin Lowy F: HomeWHEWITnDOCSV-LU.EMOYNE\RENT ABATEMENT & DEFAULT MATTER\L112410 Lemoyne sleepenwpd Exhibit "C" JORDAN D. CUNNINGHAM CUNNINGHAM & CHERNICOFF, P.C. ROBERT E. CHERNICOFF ATTORNEYS AT LAW MARC W. WITZIG BRUCE J. WARSHAWSKY P.O. Box 60457 TRACY L. UPDIKE HARRISBURG, PA 17106-0457 NICHOLAS A. FANELLI TELEPHONE: (717) 238-6570 FAX: (717) 238-4809 January 6, 2011 PERSONAL & CONFIDENTIAL Lemoyne Sleeper 57 South 3`d Street P.O. Box 227 Lemoyne, PA 17043-0227 Attn.: Jeff Glessner, CFO Re: Lease Termination Our File No. 419908 Dear Mr. Glessner: HERSHEY TELEPHONE (717) 534-2833 IRS No. 23-2274135 STREET ADDRESS: 2320 NORTH SECOND STREET HARRISBURG, PA 17110 NOTICE OF TERMINATION As you know, I forwarded notice of the intent to declare an event of default as the result of the nonpayment of rent by Lemoyne Sleeper. No rent has been tendered or received in the past two (2) months. This has been a long standing difficulty with Lemoyne Sleeper meeting its obligations under the lease agreement. The purpose of this letter is to formally advise you that the lease is terminated. It is my understanding that you have been in contact with Mr. Lowy, who has advised you that he is listing the property for sale. Any rents that you may pay to Mr. Lowy are without prejudice to the partnership as I do not desire you be under the mis-impression that the payment of rent from this point forward will in any way affect the termination of the lease. Mr. Lowy has expressed his concern that unless Lemoyne Sleeper is replaced as a tenant, the partnership will suffer serious consequences. , P.C. JDC/alh cc: LSC Real Estate Partnership c/o Martin Lowy F:\Home\AHEWITTIDOCSV-L\LEMOYNEIRENT ABATEMENT & DEFAULT MATTER\L010611 lemoyne sleepenwpd Very truly yours, Exhibit "D" Statement of Unpaid Rent Month January 2010 February 2010 March 2010 April 2010 May 2010 June 2010 July 2010 August 2010 September 2010 October 2010 November 2010 December 2010 January 2011 February 2011 Sub-Total: Balance of prior agreement of modified rent: Total unpaid rent: Amount $4,000.00 20,059.25 20,059.25 20,059.25 20,059.25 20,059.25 20,059.25 20,059.25 20,059.25 20,059.25 20,059.25 20,059.25 20,059.25 20,059.25 $264,770.25 $3,068.63 $267,838.88 Jordan D. Cunningham, Esquire Cunningham & Chernicoff, P.C. P.O. Box 60457 Harrisburg, PA 17106-0457 Telephone: 717-238-6570 Facsimile: 717-238-4809 Email: jcunningliam&cclMc.com LSC REAL ESTATE PARTNERSHIP, IN THE COURT OF COMMON PLEAS Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA V. NO. LEMOYNE SLEEPER CO., INC., Defendant VERIFICATION I verify that the statements made in the foregoing Complaint in Confession of Judgment are true and correct to the best of my knowledge, information, and belief. This Verification is made only as to the factual averments contained therein, and not to legal conclusions. I understand that false statements herein are made subject to the penalties of 18 Pa. C.S.A. §4904, relating to unsworn falsification to authorities. LSC REAL ESTATE PARTNERSHIP Date: By: ?Martin I. Lowy, Partner 6 Harrisburg, PA 17106-0457 Telephone: 717-238-6570 Facsimile: 717-238-4809 Email: icunnineham(a,cclawac.com LSC REAL ESTATE PARTNERSHIP, Plaintiff IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA V. LEMOYNE SLEEPER CO., INC., Defendant NO. AFFIDAVIT COMMONWEALTH OF PENNSYLVANIA COUNTY OF DAUPHIN Martin I. Lowy, being duly sworn according to law, deposes and says that he is a partner of LSC Real Estate Partnership, the agent for Plaintiff, LSC Real Estate Partnership herein; that he is authorized to make this Affidavit on behalf of Plaintiff, that the facts set forth in the foregoing Complaint in Confession of Judgment are true and correct to the best of his knowledge, information and belief; and that the Exhibits attached to the Complaint are true and correct copies of the originals. LSC REAL ESTATE PARTNERSHIP Date: ? By: *Martin .c/I Lowy, 1 Partner Sworn to and subscribed before me this I day of - , 2011. 44-?' NOTARIAL SEAL Notary Public ANGELA L HEWITT Notary Public HARRISBURG CITY, DAUPHIN COUNTY MY Commission Expicss Sep 6, 2011 Exhibit `A" Origin; ,1 Cor06fflJfJWW.6812 Date:._ Initials: LAMENDED AIND RESTATED COINLMERCIAL LEASE This lease originally made the 26th day of September, 1997, and amended and restated this I" day of November, 1998, between LSC REAL, ESTATE PARTNERSHIP, a Pennsylvania general partnership with its principal place of business located at 57 South Third Street (Third Street and Bosler Avenue), Lemoyne, Cumberland, Pennsylvania 17043 consisting of Gerald Pearlman and Martin I. Lowy, herein called Lessor, and LEMOYNE SLEEPER CO., INC., a Pennsylvania business corporation, with its principal place of business located at Third Street and Bosler Avenue, Lemoyne, Cumberland, Pennsylvania 17043, herein called Lessee. 1. Premises: Lessee hereby leases from Lessor the premises situated in Borough of Lemoyne, County of Cumberland, State of Pennsylvania, described as a portion of Third Street and Bosler Avenue as more particularly described on Exhibit A attached hereto upon the following TERMS and CONDITIONS: 2- Term and Rent. Lessor demises the above premises for a term of Ten (10) years, commencing September 29, 1997 and terminating on September 30, 2007, or sooner as provided herein payable as follows: a. Year 1: an annual base rental of One Hundred Twenty-eight Thousand Four Hundred Dollars ($128,400.00) payable in equal installments of Eleven Thousand Dollars ($11,000.00) in advance on the first day of each month for that month's rental, during the first ten (10) months of the first year of this Lease and Fourteen Thousand Seven Hundred Dollars ($14,700.00) during the last two months (August and September, 1998) of the first year of this Lease. Rent shall be prorated for the first month of this Lease. b. Year 2: an annual base rental of One Hundred Eight-five Thousand Four Hundred Dollars ($185,400.00) payable in equal installments of Fourteen Thousand Seven Hundred Dollars ($14,700.00) in advance on the first day of each month for that month's rental, during the first two (2) months (October and November, 1998) of the second year of this Lease and Fifteen Thousand Six Hundred Dollars ($15,600.00) during thelast ten months (December, 1998; January, February, March, April, May, June, July, August, and September, 1999) of the second year of this Lease. C. Years 3 through 10: an annual base rental of One Hundred Eight-seven Thousand Two Hundred Dollars ($187,200.00) payable in equal installments of Fiftecn Thousand Six Hundred Dollars ($15,600.00) in advance on the first day of each month for that month's rental of the fourth through tenth years of this Lease. d. Commencing the second anniversary of this Lease, the above rents shall be adjusted annually effective with the October, 1999 rent proportionately to C 1GKS2\LEMOYNE11 681.2 the same extent the United States All Items Index of the All Urban Consumers (CPI-U) (1982-1984=100) has increased over the latest All Items Index that was available at the execution of this Lease, namely 160.8 (This is the August, 1997 Index which was released by the U.S. Bureau of Labor Statistics in September, 1997). The CPI-U released in September of the year in which the rent adjustment is to take effect shall be used to compute the adjustment. All rental payments shall be made to Lessor, at the address specified above. 3. Additional Rent: All utilities charges, insurance premiums, and real estate taxes required to be paid by Lessee shall be deemed Additional Rent due under this Lease. In the event that Lessee does not pay such Additional Rent, Lessor may collect the same together with the Late Charges and Interest due under this Lease. Lessor may also, at its sole option, pay such Additional Rent and collect the same together with the Late Charges and Interest due under this Leas. 4. Late Pavments. If payment is not made by within five (5) days after it is due, the Lessee shall also pay a late charge equal to five percent (5°-Io) of the unpaid Rent and other sums due under this Lease. In addition, Lessee shall pay interest at Eighteen percent (18%) per year. on the remaining unpaid balance. retrocative to the date originally due until paid. 5. Use. Lessee may use and occupy the premises for any lawful purpose. 6. Repairs and Maintenance of Premises. This is a net lease under which the Lessee pays all repairs, replacements and maintenance. 7. Alterations. Lessee shall not, without first obtaining the written consent of Lessor, make any alterations, additions, or improvements, in, to or about the premises. 8. Ordinances and Statutes. Lessee shall comply with all statutes, ordinances and requirements of all municipal, state and federal authorities now in force, or which may hereafter be in force, pertaining to the premises, occasioned by or affecting the use thereof by Lessee. 9. Assignment and Subletting. Lessee shall not assign this lease or sublet any portion of the premises without prior written consent of the Lessor, which shall not be unreasonably withheld. Any such assignment or subletting without consent shall be void and, at the option of the Lessor, may terminate this lease. 10. Utilities. Lessee shall pay for all utilities. 11. Real Estate Taxes. Lessee shall pay for all ad valorem taxes imposed upon the premises. 2 CACASTIE:NIOYND,12681 2 1?. Entry and Inspection. Lessee shall permit Lessor or Lessor's agents to enter upon the premises at reasonable times and upon reasonable notice, for the purpose of inspecting the same, and will permit Lessor at any time within sixty (60) days prior to the expiration of this lease, to place upon the premises any usual "To Let" or "For Lease" signs, and permit persons desiring to lease the same to inspect the premises thereafter. 13. Possession. If Lessor is unable to deliver possession of the premises at the commencement hereof, Lessor shall not be liable for any damage caused thereby, and shall this lease shall be voidable at the option of the Lessee, and Lessee shall not be liable for any rent until possession is delivered. Lessee may terminate this lease if possession is not delivered within ten days of the commencement of the term hereof. 14. Indemnification of Lessor. Lessor shall not be liable for any damage or injury to Lessee, or any other person, or to any property, occurring on the demised premises or any part thereof, and Lessee agrees to hold Lessor harmless from any claim for damages, no matter how caused. 15. Insurance. Lessee shall maintain all insurance on the Property including public iiabilit; and property insurance and shall have the Lessor named as an Additional Insured on the Po.i.icy. 16. Eminent Domain. If the premises or any part thereof or any estate therein, or any ether part of the building materially affecting Lessee's use of the premise, shall be taken by eminent domain, this lease shall terminate on the date when title vests pursuant to such taking. 'I-he rent, and any additional rent, shall be apportioned as of the termination date, and any rent paid for any period beyond that date shall be repaid to Lessee. Lessee shall not be entitled to any part of the award for such taking or any payment in lieu thereof, but Lessee may file a claim for any taking of fixtures and improvements owned by Lessee, and for moving expenses. 17. Destruction of Premises. In the event of a partial destruction of the premises during the term hereof, from any cause, Lessor using the proceeds of the insurance described in Paragraph I I shall forthwith repair the same, provided that such repairs can be made within sixty (60) days under existing governmental laws and regulations, but such partial destruction shall not terminate this lease, except that Lessee shall be entitled to a proportionate reduction of rent while such repairs are being made unless Lessee's rent is covered by insurance, based upon the extent to which the making of such repairs shall interfere with the business of Lessee on the premises. If such repairs cannot be made within said sixty (60) days, Lessor, at its option, may make the same within a reasonable time, this lease continuing in effect with the rent proportionately abated as aforesaid, and in the event that Lessor shall not elect to make such repairs which cannot be made within sixty (60) days, this lease may be terminated at the option of either party. In the event that the building in which the demised premises may be situated is destroved to an extent of not less than one-third of the replacement costs thereof, Lessor may elect to terminate this lease whether the demised premises be injured or not. A total destruction C 1GKR2 LEMOYNE112681 of the building in which the premises may be situated shall terminate this lease. 13. Lessor's Remedies on Default. If Lessee defaults in the payment of rent, or any additional rent, or defaults in the performance of any of the other covenants or conditions hereof, Lessor may give Lessee notice of such default and if Lessee does not cure any such default within ten (10) days, after the giving of such notice (or if such other default is of such nature that it cannot be completely cured within such period, if Lessee does not commence such curing within such thirty (30) days and thereafter proceed with reasonable diligence and in good faith to cure such default), then Lessor may terminate this lease on not less than ten (10) days' notice to Lessee. On the date specified in such notice the term of this lease shall terminate, and Lessee shall then quit and surrender the premises to Lessor, but Lessee shall remain liable as hereinafter provided. If this lease shall have been so terminated by Lessor, Lessor may at any time thereafter resume possession of the premises by any lawful means and remove Lessee or other occupants and their effects. No failure to enforce any term shall be deemed a waiver. 19. Attorney's Fees. In case suit should be brought for recovery of the premises, or for any sum due hereunder, or because of any act which may arise out of the possession of the premises, by either party, the prevailing party shall be entitled to all costs incurred in connection with such action, including a reasonable attorney's fee. 20. Confession of Judgment. a. In addition to the remedies available as stated above, if Lessee defaults hereunder, Lessee hereby empowers any prothonotary or any attorney of any court of record within the Commonwealth of Pennsylvania or elsewhere to appear for Lessee, and, with or without complaint filed, to confess judgment against Lessee and in favor of Lessor, or any other holder of this Lease, for the sums owed by Lessee or for any default on the part of Lessee, pursuant to the terms of this Lease, with interest thereon, costs of suit and reasonable attorney's fees, upon which judgment(s), one or more executions may issue forthwith, upon failure to comply with any of the terms or conditions of this Lease. b. Lessee hereby waives and releases all errors in said proceeding, stay of execution, any right of inquisition, and any extension of time of payment. An affidavit filed by any authorized representative of Lessor shall be conclusive evidence of Lessee's default hereunder. No single exercise of the foregoing power to confess judgment shall be deemed to exhaust the power whether or not any such exercise shall be held by any court to be invalid, avoidable or void, but judgment may be confessed as aforesaid from time to time as often as any of said rent or other charge shall fall due or be in arrears, and such powers may be exercised as well after the expiration of the original term and during any extension or renewal of this 4 C.\GKS2U.EMOYNEl12681 2 Lease. C. When this Lease shall be determined by condition broken, either during the original term of this Lease or any renewal or extension thereof, and also when, and as soon as, the term hereby created or any extension thereof shall have expired, it shall be lawful for any attorney, as attorney for Lessee, to file a confession of judgment in ejectment in any competent court and against Lessee and for and against all persons claiming under Lessee, for the recovery by Lessor of possession of the Premises for which this Lease shall be sufficient warranty, whereupon, if Lessor so desires a writ of possession may issue forthwith, without any prior proceedings whatsoever; and, provided that, if for any reason, after such action shall have been commenced and same shall be determined and the possession of the Premises remains in or thereby be restored to Lessee, Lessor shall have the right upon any future default or defaults whereupon the termination of this Lease as herein set forth, to bring one or more action or actions for confession of judgment in ejectment as herein set forth, to recover possession of the Premises or any part thereof d. In any action of ejectment, Lessor shall first cause to be filed an affidavit made by it or on by someone for it and on behalf, setting forth the facts necessary to authorize the entry of judgment, of which facts such affidavit shall be conclusive evidence. If a true copy of this Lease is filed in such action, it shall not be necessary to file the original, as a warranty of attorney, any rule of court, custom, or practice to the contrary. 21. Notices. Any notice which either party may, or is required to give, shall be given by mailing the same, postage prepaid, to Lessee at the premises, or Lessor at the address first written, or at such other places as may be designated by the parties from time to time. 22. Heirs, Assigns, Successors. This lease is binding upon and inures to the benefit of the heirs, assigns and successors in interest to the parties. 23. Subordination. This lease is and shall be subordinated to all existing and future mortgages against the property, provided the lender executes a Agreement of Subordination and Attornment reasonably satisfactory to Lessee. 24. Entire Agreement. The foregoing constitutes the entire agreement between the parties and may be modified only by a writing signed by both parties. The following Exhibits, if CACjKS21LEMOYNL\ t 263 I.2 any, have been made a part of this lease before the parties' execution hereof: Exhibit "A" Description of Leased Premises. written. In witness whereof, the parties have executed this Lease the day and date first above . e L4erald SLEEPER , INC. B earlman n President J Attest:, Martin I. Lowy Assistant Secretary LSC Aee STATE PAR RSHIp By: Pear an General Partner By; Martin I. Lowy General Partner 6 C:1GKS21EM0YNM 12691.2 EXHIBIT "A" All that certain tract or parcel of land with the building and improvements thereon, erected situate in the Borough of Lemoyne, Cumberland County, Pennsylvania, more particularly bounded and described in accordance with a survey prepared by Whittock-Hartman, Registered Professional Engineers, as filed to No. L, Drawing. 87-1, N.B., 849, as follows. to wit: BEGINNING at n point, said point being an X-mark on the right-of-way intersection of the northern right-of-way line of Bosler Avenue and the western right-of-way line of Third Street; thence along the said northern right-of-way line of Bosler Avenue, South 61 degrees 25 minutes seconds West, a distance of 465.50 feet to an iron pin; thence along land of Manbeck Baking Company, North 28 degrees 53 minutes 30 seconds West, a distance of 177.28 feet to an iron pin; thence North 64 degrees; 38 minutes 46 seconds East, a distance of 88.22 feet to an iron pin; thence North 29 degrees 17 minutes 50 seconds West, a distance of 72.23 feet to an iron pin; thence along land now or late of Conrail, North 63 degrees 43 minutes 15 seconds East, a distance of 378.35 feet to an iron pin; thence along the western right-of-way line of Third Street, South 28 decrees 53 minutes 30 seconds East, a distance of 226.82 ft. to an X-mark being the point and place of BEGINNING. Said description contains two (2) tracts and contains 104,250.07 square feet or 2.3933 acres. Having erected thereon an office, warehouse and retail store known and number as 57 South Third Street, Lemoyne, Pennsylvania. BEING the same premises that Anchor Investors, a Pennsylvania general partnership, by its deed dated September 29, 1997, and recorded on October 1, 1997, in the Office of the Recorder of Deeds in and for Cumberland County, Pennsylvania in Record/Deed Book 165, Page 334, granted and conveyed to LSC Real Estate Partnership, the Lessor herein. 7 AMENDMENT TO ORI .LNAL COMMERCIAL LEASE ACREEI<IENT THIS AMENDMENT TO THE ORIGINAL COMMERCIAL LEASE AGREEMENT (Lease), dated September, 1997, is made this 26th day of January, 2006, by and between LSC Real Estate Partnership (Landlord) and Lemoyne Sleeper Company, Inc. (Tenant). NOW THEREFORE, IN CONSIDERATION, of the Landlord entering into the Commercial Lease Agreement with Tenant, the independent promises and covenants of each to the other and the rent reserved, and intending to be legally bound, Landlord and Tenant enter into this Amendment to the Commercial Lease Agreement as follows: 1. Landlord and Tenant, upon signing this Amendment, agree that the ten (10) year term of the original Commercial Lease Agreement is hereby modified and amended to terminate effective September 30, 2006. The parties agree to a new term of five (S) years beginning the 1" day of October, 2006, and ending on the 30" day of September, 2011. After the initial term ends, the Tenant shall have the option to extend the Lease for an additional five (5) years upon the same terms and conditions with the exception of rent which will be negotiated. Tenants must give written notice of its intent to exercise the option on or before July I, 2010 and the new rent must be agreed upon in writing on or before October 1, 2010 and if notagreed upon by October 1, 2010, the option shall become null and void. If Page 1 of 3 the option is not exercised or if the option is exercised and the parties do not reach an agreement as to the rent, in that event, the Agreement will continue for successive terms of one month each unless or until terminated according to the terms and conditions of the Commercial Lease Agreement. 2. Landlord and Tenant agree that upon signing this Amendment, the rent escalation clause of the original lease is terminated. Effective October 1, 2006, the yearly rent shall be $233,700.00 for the period of October 1, 2006 through September 1, 2009, payable in monthly payments of $19,475.00 for the leased premises. The yearly rent for the period of October 1, 2009 through September 30, 2010 shall be $240,711.00, payable in monthly installments of $20,039.25. The yearly rent for the period of October 1, 2010 through September 31, 2011 shall be $247,932.30, payable in monthly installments of $20,661.03. Terms and conditions of th original Leacp Agreemenr: The remaining terms and conditions of the original Commercial Lease Agreement are hereby restated and incorporated herein by reference as if more fully set forth herein. It is the intention of the parties that each of the terms of the original Commercial Lease Agreement shall remain valid and binding and in full force and effect except for those terms specifically modified by this Amendment Agreement. Page 2 of 3 IN WITNESS WHEREOF, the parties have set their hands and seals as of the day and year first set forth above. ATTES' TENANT: LEMOYNE SLEEPER COMPANY, INC. By: LANDLORD: LSC RE4L ESTATE PARTNERSHIP By: '7-- MARTINI. LOWY THE By: F:IHOM E\AHE W rrT%ROCSV-L\L.EMOYNEV.CSRLESTXLEASREN W. WPD AMILY TRUST HAM, ESQUIRE Page 3 of 3 Jordan D. Cunningham, Esquire Cunningham & Chernicoff, P.C. P.O. Box 60457 Harrisburg, PA 1 7 1 06-0457 Telephone: 717-238-6570 Facsimile: 717-238-4809 Email: icunnineham(&cclawpc.com LSC REAL ESTATE PARTNERSHIP, Plaintiff V. LEMOYNE SLEEPER CO., INC., Defendant C? d9L IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA NO. 11-2178 CONFESSION OF JUDGMENT Pursuant to the Warrant of Attorney contained in the Lease Agreement and the Amendment of the Original Lease Agreement, true and correct copies of which are attached to the Complaint in Confession of Judgment as Exhibit "A" filed in this action, I appear for the Defendant, Lemoyne Sleeper Co., Inc., and confess judgment in favor of the Plaintiff, LSC Real Estate Partnership, and against the Defendant in the amount of $288,838.88 as set forth more fully in the Complaint in Confession of Judgment. CHERNICOFF, P.C. Date: & By: J & D. Cunningham, Esquire A Supreme Court I.D. No. 23144 P.O. Box 60457 Harrisburg, PA 17106-0457 Telephone: 717-238-6570 V-lq,6 6 Pd ( Lk q Fv7/ 0 'J 'R Exhibit `A" Origins ,1 CorO&WVW26812 Date: L Initials:' A.NLE,NDED .AIYD RESTATED COINLMERCIA-L LEASE This lease originally made the 26th day of September, 1997, and amended and restated this 1" day of November, 1998, between LSC REAL. ESTATE PARTNERSHIP, a Pennsylvania general partnership with its principal place of business located at 57 South Third Street (Third Street and Bosler Avenue), Lemoyne, Cumberland, Pennsylvania 1704; consisting of Gerald Pearlman and Martin I. Lowy, herein called Lessor, and LEMOYNE SLEEPER CO., INC., a Pennsylvania business corporation, with its principal place of business located at Third Street and Bosler Avenue, Lemoyne, Cumberland, Pennsylvania 17043, herein called Lessee. 1. Premises: Lessee hereby leases from Lessor the premises situated in Borough of Lemoyne, County of Cumberland, State of Pennsylvania, described as a portion of Third Street and Bosler Avenue as more particularly described on Exhibit A attached hereto upon the following TERMS and CONDITIONS: ?. Term and Rent. Lessor demises the above premises for a term of Ten (10) Years, commencing September 29, 1997 and terminating on September 0, 2007, or sooner as provided herein payable as follows. a. Year 1: an annual base rental of One Hundred Twenty-eight Thousand Four Hundred Dollars (5128,400.00) payable in equal installments of Eleven Thousand Dollars ($11,000.00) in advance on the first day of each month for that month's rental, during the first ten (10) months of the first year of this Lease and Fourteen Thousand Seven Hundred Dollars (514,700.00) during the last two months (August and September, 1998) of the first year of this Lease. Rent shall be prorated for the first month of this Lease. b. Year 2: an annual base rental of One Hundred Eight-five Thousand Four Hundred Dollars ($185,400.00) payable in equal installments of Fourteen Thousand Seven Hundred Dollars (S 14,700.00) in advance on the first day of each month for that month's rental, during the first two (2) months (October and November, 1998) of the second year of this Lease and Fifteen Thousand Six Hundred Dollars ($15,600.00) during thelast ten months (December, 1998; January, February, March, April, May, June, July, August, and September, 1999) of the second year of this Lease. C. Years ; through 10: an annual base rental of One Hundred Eight-seven Thousand Two Hundred Dollars ($187,200.00) payable in equal installments of Fifteen Thousand Six Hundred Dollars ($15,600.00) in advance on the first day of each month for that month's rental of the fourth through tenth years of this Lease. d. Commencing the second anniversary of this Lease, the above rents shall be adjusted annually effective with the October, 1999 rent proportionately to CAGKS21LEM0YNM 12681.2 the same extent the United States All Items Index of the All Urban Consumers (CPI-U) (198'-1984=100) has increased over the latest All Items Index that was available at the execution of this Lease, namely 160.8 (This is the August, 1997 Index which was released by the U.S. Bureau of Labor Statistics in September, 1997). The CPI-U released in September of the year in which the rent adjustment is to take effect shall be used to compute the adjustment. All rental payments shall be made to Lessor, at the address specified above. 3. Additional Rent: All utilities charges, insurance premiums, and real estate taxes required to be paid by Lessee shall be deemed Additional Rent due under this Lease. In the event that Lessee does not pay such Additional Rent, Lessor may collect the same together with the Late Charges and Interest due under this Lease. Lessor may also, at its sole option, pay such Additional Rent and collect the same together with the Late Charges and Interest due under this Lease. 4. Late Payments. If pa}meat is not made by within five (5) days after it is due, the Lessee shall also pay a late charge equal to five percent (5°,Io) of the unpaid Rent and other sums due under this Lease. In addition, Lessee shall pay interest at Eighteen percent (18%) per year on the remaining unpaid balance. retrocative to the date originally due until paid. 5. Use. Lessee may use and occupy the premises for any lawful purpose. 6. Repairs and Maintenance of Premises. This is a net lease under which the Lessee pays all repairs, replacements and maintenance. 7. Alterations. Lessee shall not, without first obtaining the written consent of Lessor, make any alterations, additions, or improvements, in, to or about the premises. 8. Ordinances and Statutes. Lessee shall comply with all statutes, ordinances and requirements of all municipal, state and federal authorities now in force, or which may hereafter be in force, pertaining to the premises, occasioned by or affecting the use thereof by Lessee. 9. Assignment and Subletting. Lessee shall not assign this lease or sublet any portion of the premises without prior written consent of the Lessor, which shall not be unreasonably withheld. Any such assignment or subletting without consent shall be void and, at the option of the Lessor, may terminate this lease. 10. Utilities. Lessee shall pay for all utilities. 11. Real Estate Taxes. Lessee shall pay for all ad valorem taxes imposed upon the premises. 2 C \GKS2TEMOYNEF.12681 2 1?. Entry and Inspection. Lessee shall permit Lessor or Lessor's agents to enter upon the premises at reasonable times and upon reasonable notice, for the purpose of inspecting the same, and will permit Lessor at any time within sixty (60) days prior to the expiration of this lease, to place upon the premises any usual "To Let" or "For Lease" signs, and permit persons desiring to lease the same to inspect the premises thereafter. 13. Possession. If Lessor is unable to deliver possession of the premises at the commencement hereof, Lessor shall not be liable for any damage caused thereby, and shall this lease shall be voidable at the option of the Lessee, and Lessee shall not be liable for any rent until possession is delivered. Lessee may terminate this lease if possession is not delivered within ten days of the commencement of the term hereof. 14. Indemnification of Lessor. Lessor shall not be liable for any damage or injury to Lessee, or any other person, or to any property, occurring on the demised premises or any part thereof, and Lessee agrees to hold Lessor harmless from any claim for damages, no matter how caused. 15. Insurance. Lessee shall maintain all insurance on the Property including public liability and property insurance and shall have the Lessor named as an Additional Insured on the Poiicv. 16. Eminent Domain. If the premises or any part thereof or any estate therein, or any ether part of the building materially affecting Lessee's use of the premise, shall be taken by eminent domain, this lease shall terminate on the date when title vests pursuant to such taking. "I-he rent, and any additional rent, shall be apportioned as of the termination date, and any rent paid for any period beyond that date shall be repaid to Lessee. Lessee shall not be entitled to any part of the award for such taking or any payment in lieu thereof, but Lessee may file a claim for any taking of fixtures and improvements owned by Lessee, and for moving expenses. 17. Destruction of Premises. In the event of a partial destruction of the premises during the term hereof, from any cause, Lessor using the proceeds of the insurance described in Paragraph 11 shall forthwith repair the same, provided that such repairs can be made within sixty (60) days under existing governmental laws and regulations, but such partial destruction shall not terminate this lease, except that Lessee shall be entitled to a proportionate reduction of rent while such repairs are being made unless Lessee's rent is covered by insurance, based upon the extent to which the making of such repairs shall interfere with the business of Lessee on the premises. If such repairs cannot be made within said sixty (60) days, Lessor, .at its option, may make the same within a reasonable time, this lease continuing in effect with the rent proportionately abated as aforesaid, and in the event that Lessor shall not elect to make such repairs which cannot be made within sixty (60) days, this lease may be terminated at the option of either party. In the event that the building in which the demised premises may be situated is destroyed to an extent of not less than one-thud of the replacement costs thereof, Lessor may elect to terminate this lease whether the demised premises be injured or not. A total destruction 3 C1GKSMENjoYNEI 1268 12 of the building in which the premises may be situated shall terminate this lease. 18. Lessor's Remedies on Default. If Lessee defaults in the payment of rent, or any additional rent, or defaults in the performance of any of the other covenants or conditions hereof, Lessor may, give Lessee notice of such default and if Lessee does not cure any such default within ten (10) days, after the giving of such notice (or if such other default is of such nature that it cannot be completely cured within such period, if Lessee does not commence such curing within such thirty (30) days and thereafter proceed with reasonable diligence and in good faith to cure such default), then Lessor may terminate this lease on not less than ten (10) days' notice to Lessee. On the date specified in such notice the tern of this lease- shall terminate, and Lessee shall then quit and surrender the premises to Lessor, but Lessee shall remain liable as hereinafter provided. If this lease shall have been so terminated by Lessor, Lessor may at any time thereafter resume possession of the premises by any lawful means and remove Lessee or other occupants and their effects. No failure to enforce any term shall be deemed a waiver. 19. Attorney's Fees. In case suit should be brought for recovery of the premises, or for any sum due hereunder, or because of any act which may arise out of the possession of the premises, by either party, the prevailing party shall be entitled to all costs incurred in connection with such action, including a reasonable attorney's fee. 20. Confession of Judgment. a. In addition to the remedies available as stated above, if Lessee defaults hereunder, Lessee hereby empowers any prothonotary or any attorney of any court of record within the Commonwealth of Pennsylvania or elsewhere to appear for Lessee, and, with or without complaint filed, to confess judgment against Lessee and in favor of Lessor, or any other holder of this Lease, for the sums owed by Lessee or for any default on the part of Lessee, pursuant to the terms of this Lease, with interest thereon, costs of suit and reasonable attorney's fees, upon which judgment(s), one or more executions may issue forthwith, upon failure to comply with any of the terms or conditions of this Lease. b. Lessee hereby waives and releases all errors in said proceeding, stay of execution, any right of inquisition, and any extension of time of payment. An affidavit filed by any authorized representative of Lessor shall be conclusive evidence of Lessee's default hereunder. No single exercise of the foregoing power to confess judgment shall be deemed to exhaust the power whether or not any such exercise shall be held by any court to be invalid, avoidable or void, but judgment may be confessed as aforesaid from time to time as often as any of said rent or other charge shall fall due or be in arrears, and such powers may be exercised as well after the expiration of the original term and during any extension or renewal of this 4 C: GKMLEMOYNE%12681 2 Lease. C. When this Lease shall be determined by condition broken, either during the original term of this Lease or any renewal or extension thereof, and also when, and as soon as, the term hereby created or any extension thereof shall have expired, it shall be lawful for any attomey, as attorney for Lessee, to file a confession of judgment in ejectment in any competent court and against Lessee and for and against all persons claiming under Lessee, for the recovery by Lessor of possession of the Premises for which this Lease shall be sufficient warranty, whereupon, if Lessor so desires a writ of possession may issue forthwith, without any prior proceedings whatsoever; and, provided that, if for any reason, after such action shall have been commenced and same shall be determined and the possession of the Premises remains in or thereby be restored to Lessee, Lessor shall have the right upon any future default or defaults whereupon the termination of this Lease as herein set forth, to bring one or more action or actions for confession of judgment in ejectment as herein set forth, to recover possession of the Premises or any part thereof d. In any action of ejectment, Lessor shall first cause to be filed an affidavit made by it or on by someone for it and on behalf, setting forth the facts necessary to authorize the entry of judgment, of which facts such affidavit shall be conclusive evidence. If a true copy of this Lease is filed in such action, it shall not be necessary to file the original, as a warranty of attorney, any rule of court, custom, or practice to the contrary. 21. Notices. Any notice which either party may, or is required to give, shall be given by mailing the same, postage prepaid, to Lessee at the premises, or Lessor at the address first written, or at such other places as may be designated by the parties from time to time. 22. Heirs, Assigns, Successors. This lease is binding upon and inures to the benefit of the heirs, assigns and successors in interest to the parties. 23. Subordination. This lease is and shall be subordinated to all existing and future mortgages against the property, provided the lender executes a Agreement of Subordination and Attornment reasonably satisfactory to Lessee. 24. Entire Agreement. The foregoing constitutes the entire agreement between the parties and may be modified only by a writing signed by both parties. The following Exhibits, if C AG K52\L E MO YNl:1126,11 any, have been made a part of this lease before the parties' execution hereof: Exhibit "A" Description of Leased Premises. wri ttenIn witness whereof, the parties have executed this Lease the day and date first above . LEIMO SLEEPER , INC. L e B erald earlman President Attest:, Martin I. Lowy Assistant Secretary LSC REAL ESTATE PAR RSHIP r By: erald Pear an General Partner , ?:j B Y' Martin I. Lowy General Partner 6 C \GKS21EM0YND 12681.2 EXHIBIT "A" All that certain tract or parcel of land with the building and improvements thereon, erected situate in the Borough of Lemoyne, Cumberland County, Pennsylvania, more particularly bounded and described in accordance with a survey prepared by Whittock-Hartman, Registered Professional Engineers, as filed to No. L, Drawing. 87-1, N.B., 849, as follows. to wit: BEGINNFING at n point, said point being an X-mark on the right-of-way intersection of the northern right-of-way line of Bosler Avenue and the western right-of-way line of Third Street; thence along the said northern right-of-way line of Bosler Avenue, South 61 degrees 25 minutes seconds West, a distance of 465.50 feet to an iron pin; thence along land of Manbeck Baking Company, North 28 degrees 53 minutes 30 seconds West, a distance of 177.28 feet to an iron pin; thence North 64 degrees; 38 minutes 46 seconds East, a distance of 88.22 feet to an iron pin; thence North 29 degrees 17 minutes 50 seconds West, a distance of 72.23 feet to an iron pin; thence along land now or late of Conrail, North 63 degrees 43 minutes 15 seconds East, a distance of 378.35 feet to an iron pin; thence along the western right-of-way line of Third Street, South 28 degrees 53 minutes 30 seconds East, a distance of 226.82 ft. to an X-mark being the point and place of BEGINNING. Said description contains two (2) tracts and contains 104,250.07 square feet or 2.3933 acres. Having erected thereon an office, warehouse and retail store known and number as 57 South Third Street, Lemoyne, Pennsylvania. BEING the same premises that Anchor Investors, a Pennsylvania general partnership, by its deed dated September 29, 1997, and recorded on October 1, 1997, in the Office of the Recorder of Deeds in and for Cumberland County, Pennsylvania in Record/Deed Book 165, Page 334, granted and conveyed to LSC Real Estate Partnership, the Lessor herein. 7 ANIENDNI .N'r TO ORIGINAL ONIMERCIAL LEASE ACtt??R?ENT THIS AMENDMENT TO THE ORIGINAL COMMERCIAL LEASE AGREEMENT (Lease), dated September, 1997, is made this 26th day of January, 2006, by and between LSC Real Estate Partnership (Landlord) and Lemoyne Sleeper Company, Inc. (Tenant). NOW THEREFORE, IN CONSIDERATION, of the Landlord entering into the Commercial Lease Agreement with Tenant, the independent promises and covenants of each to the other and the rent reserved, and intending to be legally bound, Landlord and Tenant enter into this Amendment to the Commercial Lease Agreement as follows: Landlord and Tenant, upon signing this Amendment, agree that the ten (10) year term of the original Commercial Lease Agreement is hereby modified and amended to terminate effective September 30, 2006. The parties agree to a new term of five (5) years beginning the I" day of October, 2006, and ending on the 30" day of September, 2011. After the initial term ends, the Tenant shall have the option to extend the Lease for an additional five (5) years upon the same terms and conditions with the exception of rent which will be negotiated. Tenants must give written notice of its intent to exercise the option on or before July 1, 2010 and the new rent must be agreed upon in writing on or before October 1, 2010 and if notagreed upon by October 1, 2010, the option shall become null and void. If Page 1 of 3 the option is not exercised or if the option is exercised and the parties do not reach an agreement as to the rent, in that event, the Agreement will continue for successive terms of one month each unless or until terminated according to the terms and conditions of the Commercial Lease Agreement. Landlord and Tenant agree that upon signing this Amendment, the rent escalation clause of the original lease is terminated. Effective October 1, 2006, the yearly rent shall be $233,700.00 for the period of October 1, 2006 through September 1, 2009, payable in monthly payments of $19,475.00 for the leased premises. The yearly rent for the period of October 1, 2009 through September 30, 2010 shall be $240,711.00, payable in monthly installments of $20,039.25. The yearly rent for the period of October 1, 2010 through September 31, 2011 shall be $247,932.30, payable in monthly installments of $20,661.03. 3• Terms and itions of the orio?nat r ea ,? n : The remaining terms and conditions of the original Commercial Lease Agreement are hereby restated and incorporated herein by reference as if more fully set forth herein. It is the intention of the parties that each of the terms of the original Commercial Lease Agreement shall remain valid and binding and in full force and effect except for those terms specifically modified by this Amendment Agreement. Page 2 of 3 IN WITNESS WHEREOF, the parties have set their hands and seals as of the day and year first set forth above. ATTES7: TENANT: LEMOYNE SLEEPER COMPANY, INC. BY: LANDLORD: LSC RE4L ESTATE PARTNERSHIP By: -c -? MARTIN I. LOWY THE By: cJqo F:IHOME\AHE W rrrDOCSV-L\L.EMOYNEV.CSRLESMEASRENW. WPD AMILY TRUST , ESQUIRE Page 3 of 3 Jordan D. Cunningham, Esquire Cunningham & Chernicoff, P.C. P.O. Box 60457 Harrisburg, PA 17106-0457 Telephone: 717-238-6570 Facsimile: 717-238-4809 Email: icunninghamOcclawVc.COm LSC REAL ESTATE PARTNERSHIP, Plaintiff V. LEMOYNE SLEEPER CO., INC., Defendant P RbT a , FE 24 QH °VIA,? ' IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA g NO. j/-fi17 NOTICE UNDER RULE 2958.1 OF JUDGMENT AND EXECUTION THEREON Notice of Defendant's Rights To: Lemoyne Sleeper Co., Inc. 57 South 3rd Street Lemoyne, PA 17043 A judgment in the amount of $ oWcWf lus interest at the legal rate and court costs, has been entered against you and in favor of Plaintiff without any prior notice or hearing based on a confession of judgment contained in a written agreement or other paper allegedly signed by you. The sheriff may take your money or other property to pay the judgment or other property to pay the judgment at any time after thirty (30) days after the date on which this Notice is served on you. You may have legal rights to defeat the judgment or to prevent your money or property from being taken. YOU MUST FILE A PETITION SEEKING RELIEF FROM THE JUDGMENT AND PRESENT IT TO A JUDGE WITHIN THIRTY (30) DAYS AFTER THE DATE ON WHICH THIS NOTICE IS SERVED ON YOU OR YOU MAY LOSE YOUR RIGHTS. YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER, 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 WITHIN INFORMATION ABOUT AGENCIES THAT MAY OFFER LEGAL SERVICES TO ELIGIBLE PERSONS AT A REDUCED FEE OR NO FEE. Cumberland County Bar Association 32 S. Bedford Street Carlisle, PA 17013 717-249-3166 800-990-9108 CUNNIN Date: !?P 11 COFF, P.C. By: unningham, Esquire PAS reme Court I.D. No. 23144 P.O. ox 60457 Harrisburg, PA 17106-0457 Telephone: 717-238-6570 Jordan D. Cunningham, Esquire Cunningham & Chernicoff, P.C. P.O. Box 60457 Harrisburg, PA 17106-0457 Telephone: 717-238-6570 Facsimile: 717-238-4809 Email: icunninghamQ)cclawyc.com LSC REAL ESTATE PARTNERSHIP, Plaintiff J ,11 11 FEB 21; AM 10: c1 CUMBERLAKIEJ IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA V. NO. ????I7b LEMOYNE SLEEPER CO., INC., Defendant NOTICE UNDER RULE 2973.3 OF JUDGMENT AND EXECUTION THEREON Notice of Defendant's Rights To: Lemoyne Sleeper Co., Inc. 57 South 3`d Street Lemoyne, PA 17043 A judgment for possession of real property described as 57 South 3`d Street, Lemoyne, Cumberland County, Pennsylvania 17043 has been entered against you and in favor of the Plaintiff without prior notice and hearing based on a confession of judgment contained in a promissory note or other document allegedly executed by you. The Court has issued and the Sheriff has served a Writ of Possession which directs the Sheriff to remove you from possession of the real property. You may have legal rights to defeat the judgment or to prevent your being removed from the property or to regain possession of the property if you have been removed, if you did not voluntarily, intelligently, or knowingly give up your constitutional right to notice and hearing prior to the entry of judgment or if you have defenses or other valid objections to the judgment. ANY PETITION SEEKING RELIEF FROM THE JUDGMENT AND TO REGAIN POSSESSION MUST BE FILED WITHIN THIRTY (30) DAYS AFTER THE DATE ON WHICH THIS NOTICE IS SERVED ON YOU OR YOU MAY LOSE YOUR RIGHTS. If you have been removed from the property without notice or the opportunity for a hearing, you have a right to prompt court hearing if you claim that you did not voluntarily, intelligently, or knowingly give up your rights to notice and hearing prior to the entry of the judgment. If you wish to exercise this right, you must immediately fill out and sign the request for hearing which accompanies the Writ of Possession and deliver it to the Sheriff of Cumberland County at One Courthouse Square, Carlisle, Cumberland County, Pennsylvania 17013. 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 WITHIN INFORMATION ABOUT AGENCIES THAT MAY OFFER LEGAL SERVICES TO ELIGIBLE PERSONS AT A REDUCED FEE OR NO FEE. Cumberland County Bar Association 32 S. Bedford Street Carlisle, PA 17013 717-249-3166 800-990-9108 CUNNINGHAM & CHERNICOFF, P.C. Date: 211(1111 By: Tordari D ,,?nningham, Esquire PA Supreme Court I.D. No. 23144 P.O. Box 60457 Harrisburg, PA 17106-0457 Telephone: 717-238-6570 9F THE Jordan D. Cunningham, Esquire Cunningham & Chernicoff, P.C. P.O. Box 60457 Harrisburg, PA 17106-0457 Telephone: 717-238-6570 Facsimile: 717-238-4809 Email: jcunninghamna&cclawpc.com LSC REAL ESTATE PARTNERSHIP, IN THE COURT OF COMMON PLEAS Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA V. NO. SLEEPER CO., INC., Defendant CERTIFICATION OF ADDRESSES Jordan D. Cunningham, Esquire attorney for Plaintiff, LSC Real Estate Partnership, certified that the registered address of the Plaintiff is 4218 Prosperous Drive, Harrisburg, Dauphin County, Pennsylvania 17112. I further certify that the registered office of Defendant, Lemoyne Sleeper Co., Inc., is 57 South 3`d Street, Lemoyne, Cumberland County, Pennsylvania 17043. COFF, P.C. Date: /wl // By: J$aS. Cunningham, Esquire A Supreme Court I.D. No. 23144 P.O. Box 60457 Harrisburg, PA 17106-0457 Telephone: 717-238-6570 7 LSC REAL ESTATE PARTNERSHIP, : IN THE COURT OF COMMON PLEAS Plaintiff V. LEMOYNE SLEEPER CO., INC., Defendant CUMBERLAND COUNTY, PENNSYLVANIA NO. AFFIDAVIT THAT ACTION DOES NOT ARISE OUT OF RETAIL INSTALLMENT CONTRACT COMMONWEALTH OF PENNSYLVANIA 7r a COUNTY OF DAUPHIN' r Martin I. Lowy, being duly sworn according to law, deposes and says thatc) is a rtntwof LSC Real Estate Partnership, the agent for Plaintiff, LSC Real Estate Partnersh" rei Ithk"C-71 he is authorized to make this Affidavit on behalf of Plaintiff; and that these transactx ills Son` 17-1 r. which judgment is being entered by confession where business and commercial transactions. LSC REAL ESTATE PARTNERSHIP Date: I By: Marti I. Lowy, Partner Sworn to and subscribed before me this %y of , 2011. Nota u lic NOTARIAL SEAL ANGELA L HEWITT Notary Public HARRISBURG CITY, DAUPHIN COUNTY MY Commission Expires Sep b, 2011 rFiLjyED _ f,. FICL- it17, P t tt??Gte•? rn rT n , . 'pI l FER 24 t': F 7 PENNS 11A LSC REAL ESTATE PARTNERSHIP, Plaintiff V. LEMOYNE SLEEPER CO., INC., Defendant Jordan D. Cunningham, Esquire Cunningham & Chernicoff, P.C. P.O. Box 60457 Harrisburg, PA 17106-0457 Telephone: 717-238-6570 Facsimile: 717-238-4809 Email: icunnin¢harna?cclawnc.com IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA NO. 7K AFFIDAVIT THAT ACTION DOES NOT ARISE OUT OF RETAIL INSTALLMENT CONTRACT COMMONWEALTH OF PENNSYLVANIA COUNTY OF DAUPHIN Martin I. Lowy, being duly sworn according to law, deposes and says that he is a partner of LSC Real Estate Partnership, the agent for Plaintiff, LSC Real Estate Partnership herein; that he is authorized to make this Affidavit on behalf of Plaintiff; and that this action is not an action by a seller, holder, or assignee arising out of a retail installment sale, contract, or account. LSC REAL ESTATE PARTNERSHIP x. / )7Zt?' Date: B Y //I, -4,/ Martin I. Lowy, Partner Sworn to and subscribed before me this V-tiay of lq?o , 2011. Notary Pu C NOTARIAL SEAL Jordan D. Cunningham, Esquire ANGELA L HEWITT Cunningham & Chemicoff, P.C. Notary Public P.O. Box 60457 HARRISBURG CITY, DAUPHIN COUNTY Harrisburg, PA 17106-0457 My Commission Expires Sap 6, 2011 Telephone: 717-238-6570 Facsimile: 717-238-4809 Email: icunninghamAcclawpc.com LSC REAL ESTATE PARTNERSHIP, IN THE COURT OF COMMON PLEAS Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA V. NO. C=D LEMOYNE SLEEPER CO., INC., Defendant -n 0 -OF-rl AFFIDAVIT PURSUANT TO Pa. R.C.P. §2951(A)(2)(ii) "' _ COMMONWEALTH OF PENNSYLVANIA -7 i COUNTY OF DAUPHIN Martin I. Lowy, being duly sworn according to law, deposes and says that he is a partner of LSC Real Estate Partnership, the agent for Plaintiff, LSC Real Estate Partnership herein; that he is authorized to make this Affidavit on behalf of Plaintiff; and that judgment is not being entered by confession against a natural person in connection with a consumer credit transaction. LSC REAL ESTATE PARTNERSHIP Date: By: In owy, Partner Sworn to and subscribed before me this day of W\I) .2011. NOTARIAL SEAL Notary Public ANGELA L HEWITT Jordan D. Cunningham, Esquire Notary Public HARRISBURG CITY, DAUPHIN COUNTY Cunningham & Chernicoff, P.C. My Commission Expires Sep b, 2011 P.O. Box 60457 Harrisburg, PA 17106-0457 Telephone: 717-238-6570 Facsimile: 717-238-4809 Email: icunnineham(c)cclawpc.com k; i' J d FEB 24 Ah (t1: r-. 4 +' REpRLAh;D' LSC REAL ESTATE PARTNERSHIP, Plaintiff V. LEMOYNE SLEEPER CO., INC., Defendant Jordan D. Cunningham, Esquire Cunningham & Chernicoff, P.C. P.O. Box 60457 Harrisburg, PA 17106-0457 Telephone: 717-238-6570 Facsimile: 717-238-4809 Email: icunningham(a),cclawnc.com IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA NO. //f ,_/ 7?' PRAECIPE FOR ASSESSMENT AND ENTRY OF DAMAGES TO THE PROTHONOTARY: Please assess damages now due on the judgment in this action against Defendant, Lemoyne Sleeper Co., Inc. in the amount of U0 s set forth more fully in the Complaint for Confession of Judgment filed in this action, together with interest at the legal rate plus court costs. COFF, P.C. Date: 2 (0 // By: J Kan DAunningham, Esquire A Supreme Court I.D. No. 23144 P.O. Box 60457 Harrisburg, PA 17106-0457 Telephone: 717-238-6570 IN, Jordan. D. Cunningham, Esquire Cunningham & Chernicoff, P.C. P.O. Box 60457 Harrisburg, PA 17106-0457 Telephone: 717-238-6570 Facsimile: 717-238-4809 Email: icunninQham(acclawnc.com LSC REAL ESTATE PARTNERSHIP, : IN THE COURT OF COMMON PLEAS Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA V. LEMOYNE SLEEPER CO., INC., Defendant NO. AVERMENT OF DEFAULT COMMONWEALTH OF PENNSYLVANIA COUNTY OF DAUPHIN Martin I. Lowy, being duly sworn according to law, deposes and says that he is a partner of LSC Real Estate Partnership, the agent for Plaintiff, LSC Real Estate Partnership herein; that he is authorized to make this Affidavit on behalf of Plainfiff; and Defendant, Lemoyne Sleeper ,4aJ,?Nt£.u7L?,ty? ?,£ST'k'7? 'i?wMf:¢C'ii? c kV%?3?-Z ',1 /a9& ,?. Co., Inc., entered into k Lease Agreement onS i. ! 1-- '61,19197 and an Amendment of the Lease Agreement on January 26, 2009. Deponent further avers that Defendant defaulted and violated the terms and provisions of the Lease Agreement and Amended Lease Agreement by failing and refusing to make timely payments to Plaintiff as set forth in the Complaint for Confession of Judgment, and there is B.W due and owing under the Lease Agreement, and the Amendment of the Lease Agreement as set forth in the Complaint for Confession of Judgment. LSC L ESTATE PARTNERSHIP Date: By: M in I. Lowy, Partner Sworn to and subscribed before me this 'day of b. , 2011. 04-IA ?-? Not ub is NOTARIAL SEAL ANGELA L HEWITT Notary Public HARRISBURG CITY, DAUPHIN COUNTY My Commission Expires Sep 6, 201 1 Jordan D. Cunningham, Esquire Cunningham & Chernicoff, P.C. P.O. Box 60457 Harrisburg, PA 17106-0457 Telephone: 717-238-6570 Facsimile: 717-238-4809 Email: icunnin¢hamAcclawpc.com LSC REAL ESTATE PARTNERSHIP, Plaintiff IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA V. NO. LEMOYNE SLEEPER CO., INC., Defendant NOTICE OF ENTRY OF JUDGMENT TO THE PROTHONOTARY: (X) Notice is hereby given that a judgment in the above-captioned matter has been entered against you for possession of the real property described at 57 South 3`d Street, Lemoyne, Cumberland County, Pennsylvania 17043; (X) Notice is hereby given that a judgment in the above-captioned matter has been entered against you in the amount of $ "plus interest at the legal rate and cost of suit on a ?'-`? , 2011. (X) A copy of all documents filed with the Prothonotary in support of the within judgment are enclosed. PROTHONOTARY OF CUMBERLAND COUNTY S_ll By: y If you have any questions regarding this Notice, please contact the filing party: Jordan D. Cunningham, Esquire PA Supreme Court I.D. No. 23144 P.O. Box 60457 Harrisburg, PA 17106-0457 Telephone: 717-238-6570 Notices sent to: Lemoyne Sleeper Co., Inc. 57 South 3`d Street Lemoyne, PA 17043 SHERIFF'S OFFICE OF CUMBERLAND COUNTY Ronny R Anderson Sheriff Jody S Smith Chief Deputy Richard W Stewart Solicitor of glm&'rh1 d OF'-L?E'F 4 ..cc r{ LSC Real Estate Partnership vs. Case Number Lemoyne Sleeper Co., Inc. 2011-2178 SHERIFF'S RETURN OF SERVICE 02/25/2011 03:30 PM - Robert Bitner, Deputy Sheriff, who being duly sworn according to law, states that on February 25, 2011 at 1530 hours, he served a true copy of the within Complaint in Confession of Judgment and Notice, upon the within named defendant, to wit: Lemoyne Sleeper Co., Inc. c/o Jeff Glesser, CFO, by making known unto Kaile Rassensberger, Receptionist for Lemoyne Sleeper Co., Inc. at 57 S. Third Street, Lemoyne, Cumberland County, Pennsylvania 17043 its contents and at the same time handing to her personally the said true and correct copy of the same. SHERIFF COST: $42.40 February 28, 2011 RO ERT BITNER DEPUTY SO ANSWERS, RbNISW R ANDERSON, SHERIFF ;c? GawltySuite S?en`f re'eoso`t in,,.