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HomeMy WebLinkAbout02-0208Jack F. Hurley, Jr., Esquire Attorney I.D. No. 24414 Timothy J. Nieman, Esquire Attorney I.D. No. 66024 RHOADS & SINON LLP One South Market Square, 12th Floor P.O. Box 1146 Harrisburg, PA 17108-1146 (717) 233-5731 Attorneys for Plaintiff 36th STREET ASSOCIATES, Plaintiff V. R.M.H. TELESERVICES, INC. Defendant : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA ; : CIVIL ACTION LAW .& c__~ : : JURY TRIAL DEMANDED YOU HAVE BEEN SUED IN COURT. If you wish to defend against the claims set forth in the following pages, you must take action within twenty (20) days after this Complaim and Notice are served, by entering a written appearance personally or by attorney and filing in writing with the Court your defenses or objections to the claims set forth against you. You are wamed that if you fail to do so the case may proceed without you and a judgment may be entered against you by the Court without further notice for any money claimed in the Complaint or for any other claim or relief requested by the Plaintiff. You may lose money or property or other rights important to you. YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER OR CANNOT AFFORD ONE, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW TO FIND OUT WHERE YOU CAN GET LEGAL HELP. CUMBERLAND COUNTY BAR ASSOCIATION 2 Liberty Avenue Carlisle, PA 17013 (717) 249-3166 USTED HA SIDE DEMANDADO/A EN CORTE. Si usted desea defenderse de las demandas que se presentan mas adelante en las siguientes paginas, debe romar accion dentro de los proximos veinte (20) dias despues de la notificacion de esta Demanda y Aviso radicando personalmente o por medio de un abogado una comparecencia escrita y radicando en la Corte por escrito sus defensas de, y objecciones a, las demandas presentadas aqui en contra suya. Se le advierte de que si usted falla de romar action como se describe anteriormente, el caso puede proceder sin usted y un fallo por cualquier suma de dinero reclamada en la demanda o cualquier otra reclamacion o remedio solicitado por el demandante puede ser dictado en contra suya por la Corte sin mas aviso adicional. Usted puede perder dinero o propiedad u otros derechos importantes para usted. USTED DEBE LLEVAR ESTE DOCUMENTO A SU ABOGADO INMEDIATAMENTE. SI USTED NO TIENE UN ABOGADO O NO PUEDE PAGARLE A UNO, LLAME O VAYA A LA SIGUIENTE OFICINA PARA AVERIGUAR DONDE PUEDE ENCONTRAR ASISTENCIA LEGAL. CUMBERLAND COUNTY BAR ASSOCIATION 2 Liberty Avenue Carlisle, PA 17013 (717) 249-3166 Jack F. Hurley, Jr., Esquire Attorney I.D. No. 24414 Timothy J. Nieman, Esquire Attorney I.D. No. 66024 RHOADS & SINON LLP One South Market Square, 12th Floor P.O. Box 1146 Harrisburg, PA 17108-1146 (717) 233-5731 Attorneys for Plaintiff 36th STREET ASSOCIATES, Plaintiff R.M.H. TELESERVICES, INC. Defendant : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA : : CIVIL ACTION LAW : JURY TRIAL DEMANDED COMPLAINT NOW COMES Defendant, 36th Street Associates, by and through its counsel, Rhoads & Sinon LLP, and files this Complaint, stating as follows: 1. Plaintiff is 36th Street Associates ("36th Street"), a Pennsylvania general partnership with an office at 415 Fallowfield Road, Camp Hill, Cumberland County, Pennsylvania. 36th Street owns an office building known as 415 Fallowfield Road, Hampden Township, Cumberland County, Pennsylvania (the "Building"). 2. Defendant is R.M.H. Teleservices, Inc. ("RMH"), a Pennsylvania corporation with an office at 40 Morris Avenue, Bryn Mawr, Pennsylvania. 3. Pursuant to an Agreement of Lease dated September 4, 1996 between 36th Street and RMH (the "Lease"), RMH leased the third floor of the Building from 36th Street (the "Premises"). A true and correct copy of the Lease is attached hereto as Exhibit "A". 414997.1 4. Pursuant to Paragraph 8 of the Lease, RMH acknowledged at the time it took possession of the Premises "that the Premises were at such time in satisfactory condition, order and repair." 5. The Lease further provides in Paragraph 13 that at the end of the Lease term, RMH was to surrender the Premises to 36th Street "in broom clean condition and in good order and repair except for ordinary wear and tear..." 6. The Lease also required the payment of a security deposit in the amount of $10,404.00 (the "Security Deposit"). In Paragraph 3(c) of the Lease, RMH acknowledged that the Security Deposit was "collateral security for the perfom~ance of [RMH's] obligation under the Lease." Paragraph 3(a) of the Lease provides that the base rent "shall be payable without right of setoff..." 7. The Lease term expired on September 30, 2001. 8. Instead of paying the entire rent due for September 2001, RMH sent 36th Street a check for $1,541.33, which was the difference between the $11,945.33 monthly rent less the Security Deposit. By letter dated September 11, 2001, 36th Street informed RMH that it failed to make its final rent payment as required by the Lease and demanded that RMH immediately remit the outstanding rent plus a 5% late payment penalty of $597.27. A true and correct copy of this letter is attached hereto as Exhibit "B". 9. When RMH was vacating the Premises, 36th Street discovered that there was significant damage (the "Damage") to the Premises that was not normal "wear and tear." The Damage includes, but is not limited to, the following: a. Soap dispenser lid missing in the women's restroom; b. Soap dispenser missing in the men's restroom; c. Four toilet paper dispenser covers cracked; d. Three coat hooks missing on restroom stall doors; e. Men's restroom stall door dented; f. Women's restroom toilet tank top cracked; g. Food thrown on walls of lunch room; h. Broken and missing floor tiles in the lunchroom; i. Smoke damage in smoking lounge; j. Damage to door in smoking lounge; k. Graffiti carved in mahogany panels in the elevator; 1. Scratches in glass panels on front door; m. Damage to wood doors in office area; n. Holes in wall in office area; o. Holes in wall in phone area; and p. Significant damage and stains to carpeting. 10. On or about September 20, 2001, RMH's agent, Thomas Pullman, conducted a walk through inspection of the Premises when it was vacated by RMH and acknowledged the damages outlined in the preceding Paragraph. 11. By letters dated September 11, 2001, September 27, 2001, and November 9, 2001, 36th Street notified RMH of the Damage to the Premises. True and correct copies of these letters are attached hereto as Exhibits "B", "C" and "D" respectively. 12. The Damage is far in excess of reasonable wear and tear and thus constitutes a breach of the Lease and a default under the Lease. Most of the Damage appears to have been caused by intentional acts. For example, the damage to the mahogany elevator panels occurred on an elevator that was for the exclusive use of RMH and was caused by someone carving his or her initials into the panels. Likewise, the damage to the bathroom stall door could only have been caused by someone kicking, hitting or otherwise abusing the door. 13. It is currently estimated that it will cost 36th Street in excess of $40,000 to repair the Damage. Additionally, RMH is liable to 36th Street for a late payment penalty in the amount of $597.27 for RMH's failure to pay the September 2001 payment as required by the Lease. 14. The Lease also provides in Paragraph 30 that "[i]n the event of any default under this Lease, the non-prevailing party shall reimburse the prevailing party for all attorneys fees and other costs and expenses incurred by prevailing party in connection with the Lease." WHEREFORE, Plaintiff 36th Street Associates requests that it be awarded damage in excess of $40,000, its costs and expenses of suit, attorneys' fees and any other damages that this By: Court deems appropriate. Respectfully submitted, RHOADS & SINON LLP Jack F. Hurley, Jr. Timothy J. Nieman One South Market Square P. O. Box 1146 Harrisburg, PA 17108-1146 (717) 233-5731 Attorneys for Plaintiff EXHIBIT A LEASE 36TH STREET ASSOOIATES, LANDLORD TO R.M.H. TELESERVI~ES, TENANT Lease Paragraph TABLE OF CONTENTS Page No. 2. 3. 4. 5~. 6. ?. 8. 9. 10. 11. 12. 13. 14. 15. 16. 17. 18. 19. 20. 21. 22. 23. 24. 25. 26. 27. 28. 29. 30. 31. 32. 33. 34. 35. 36. 3?. 38. 39. 40. 41. 42. 43. 44. premises Term, Landlord's Work Base Rent and Security Deposit Parking Use of Premises and Building Alterations Mechanics' Liens Condition of Premises Assignment and Subletting Access to Premises Repairs and Haintenance and Utilities Taxes Surrender-of Premises - Indemnification and Liability Tenant Liability and Insurance Fire orCasualty Insurance Subordination, Non-disturbance and Attornment Condemnation Estoppel Certificates Default Accelerated Rent Remedies Waiver Quiet EnJoyment Signs Compliance with Legal Requirements Contaminants, Pollutants and Hazardou~ Waste Payment Of Tenant's Obligations by Landlord Security Deposit Landlord's Legal Expense Successor Governing Law Separability Captions Gender Notices Jurisdiction Brokers Exhibits and Riders Entire Agreement Right of First Refusal No Smoking Buildln§ Landlord's Lien Zoning 2 2 3 4 4 5 6 6 6 6 7 7 7 8 9 9 10 10 10 11 12 12 13 13 13 13 14 14 14 15 15 15 15 15 15 15 16 16 16 16 16 16 16 17 AGKEE14EI~ OF ~.~-&$g THIS AGREEMENT OF tm&SE (this "Leases") is dated as of day of Au§ust, 1996, between 36TH STREET ASSOCIATES, a Pennsylvania general partnership having an office at 415 Fallowfield Road, Camp Hill, Pennsylvania, 17011, (the "Landlord"), and R.H.H. TELESERVICES, a having an office at 40 Morris Avenue, Bryn Mawr, Pennsylvania 19010 (the "Tenant"), and provides: 1. Premises (a) Leased Premises. Pursuant to the terms and provisions ofthiS Lease, the Landlord hereby leases to the Tenant, and the Tenant hereby leases from the Landlord, the Premises (as hereinafter defined). The term "Premises!' means the third floor, containing approximately 9,248 square feet, of the office building (the "Building") known as 415 Fallowfield Road, located in Hampden Township, Cumberland County, Pennsylvania. 2. Term. ~andlord's ~ork. (a) The term of this Lease and Tenant's Obligation to pay rent hereunder shall comaence on thedate which is ten (10) business days after Landlord gives Tenant written notice of the completion of Landlord's Work, as described in subparagraph (d), below (the "Commencement Date"). Landlor~ shall use reasonable efforts to complete Landlord's Work on or before October 8,'1996. (b) The term of this Lease shall be for a period of five (5) years commencing on the Commencement Date and ending at midnight on the day immediately preceding the fifth (Sth) anniversary of the Commencement Date (the "Expiration Date"), unleSs sooner terminated as hereinafter provided. (c) Tenant's obligation to pay rent hereunder shall Commence on the Commencement Date. (d) Landlord shall, at Landlord's cost, renovate the Premises in accordance with the plans and specifications attached hereto as Exhibit "B" and made a part hereof (the "Landlord's Work"). Any changes to the plans and specificationsrequested by Tenant which result in an increase in the cost of the renovations shall be subject to the consent of the Landlord. Upon the consent of the Landlord, Tenant shall pay Landlord for any increased costs within ten (10) days of Landlord providing Tenant with invoices for the changed work. (e) Landlord shall cause the Landlord's Work to be constructed in a good and workmanlike manner to a turn-key condition, and in accordance with all applicable laws, rules, orders, regulations and codes. - 2 - (f) Landlord shall cause the Landlord's Work to be substantially completed, except for minor punch-list type items, and a certificate of occupancy for the Premises to be issued, on or before October 8, 1996. Moreover, in the event Landlord fails to substantially complete theLandlord's Work, and obtain a certificate of occupancy, on or before October 18, 1996, Tenant may uponwritten notice to Landlord and after Landlord fails to cure within ten (10) days, terminate this Lease.' (g) Without charge, Tenant, its agents, employees and invitees, upon prior notice to Landlord shall have the right to enter the Building and the Premises at any time after October 1, 1996, for the purposes of installing Tenant's equipment, fixtures and furniture in the Premises and interviewing potential employees on the first floor of the Building. (h) Landlord shall make available to Tenant, at no cost, space on the first.floor of the Building as shown on Exhibit "A", beginning on Septembe~ 23, 1996, and continuinguntil the date that is the earlier of (i) five (5) days after the Landlord's Work is complet.e or (ii) Tenant terminates this Lease as provided above in Paragraph 2(f), for the limited purpose of recruiting employees and for newspaper advertising. Tenant shall pay fo~ its use of telephone and other utilities at the rates charged to Landlord by the utility company providing, such service. Base Re~t and Security Deposit. (a) Tenant shallpay to Landlord at 415 Fallowfield Road, Gamp Hill, Pennsylvania. 17011 as rent (the "Base Rent") in accordancewtth the. following schedule: Annual Monthly 1st Year '$124,848.00 . $10,404.00 2nd Year. 129,472.00 10,789.33 3rd Year 134,096.00 11,174.67 4th Year 138,720.'00 11,560.00 5th Year 143,344.00 11,945.33 The Base Rent shall be payable without right of setoff on the same date of each calendar month as the date of the Commencement Date in twelve equal monthly installments in advance and without demand, beginning on the Commencement Date of the term. Any payment of rent not received by Landlord by 5:00 P.M., prevailing time, on the tenth day after the payment is due, shall be subject to a late payment penalty equal to five percent (5%) of the rent payment. (b) Tenant hereby covenants and agrees to pay the rent hereby reserved as and when due, and also all sums of money, charges or other amounts required to be paid by the Tenant to the Landlord or to another person under this Lease, which shall be "rent" in - 3 - addition to the rent provided for herein. Non-payment of additional rent when due shall constitute a default under this Lease to the same extent, and shall entitle the Landlord to the same remedies, as non-payment of rent. (c) Upon execution hereof, Tenant has paid Landlord aL ease Security Deposit in the amount of Ten Thousand Four Hundred Four Dollars ($10,404.00), receipt of whichLandlord hereby acknowledges as collateral security for the performance of the Tenant's obligation under this Lease. (d) Tenant shall have the right to terminate this Lease, upon not less than six (6) months' written notice thereof to Landlord, as of the day immediately preceding the third (3rd) anniversary of the Commencement Date. In the event the Tenant elects to terminate this Lease effective as of the day immediately preceding the third anniversary of the Commencement Date, then the Tenant shall pay the Landlord, in addition to any and all other amounts dde on the 'Lease up to and including the date of termination, Sixty-EightThousand Eight Hundred Seventy-Two Dollars ($68,872.00) which the parties agree is the amortized value on September 30, 1999 (based on a five (5) year amortization period commencing October 1, 1996) of the cost of Landlord's Work. The additional amounts due from Tenant to Landlord upon a termination of this Lease pursuant to this paka§raph 3(d) shall be paid in full by the Tenant no later than thirty (30) days prior to the effective date of the termination as of the day immediately preceding the third (3rd) anniversary of the Commencement Date of this Lease. 4. Parkin=. Tenant, its employees, officers, manager, agents, and invitees shall have the exclusive right to use the sixty (60) parking spaces designated on Exhibit "A", attachedhereto and made a pa~thereof, and shall not have the right to use any other parking spaces serving the Building, provided that between 5:00 P.M. and 11:59 P.M. prevailing time, the Tenant may use up to an additional 20 unreserved spaces in the area designated on Exhibit "A". Landlord shall by s£gnage or other means determined by Landlord designate the parking spaces reserved for the exclusive use of Tenant. 5. Use of Premises and Building. (a) Tenant shall use and occupy the Premises only for purposes of a telemarketing office and other related services. Tenant shall not use or occupy the Premises for any other purpose or business without prior written consent of Landlord. Tenant may provide food vending within the Premises from an outside vendor to its employees and may install drink, snack, sandwich and soup machines. Ail food and drink will be consumed within the Premises. Tenant shall not conduct business in the Premises between the hours of midnight and 8:00 A.M. Tenant shall have limited access to the Premises, from time to time, between the hours of midnight and 8:00 A.M., as may be needed, but not for Tenant's normal business activities and subject to compliance with Landlord's security measures. (b) The following services and facilities shall be supplied by Landlord to Tenant in connection with Tenant's use of the Premises, in common (where applicable) with other tenants of the Building: (i) Landlord shall furnish heat and air conditioning equipment and facilities~ (ii) Landlord shall furnish restroom facilities. (iii) Landlord shall supply the Premises with electric service for heating, air conditioning, lighting and power to operate customary business machines and equipment and staffing of employees. Landlord shall install a flow meter for measuring Tenant's electric usage. (iv) Landlord shall provide sel~-service passenger elevator service to the Premises. (v) Landlord shall provide water in reasonable quantities consistent with customary office usage for drinking, lavatory,and toilet purposes to be drawn from the bathrooms or other approved fixtures within the Premises, or suitable Public areas. (vi) Landlord shall keep and maintain the public areas and facilities of the Building reasonably clean and ingood working order, and the sidewalks ~nd parking area adjoining the Building lit, in reasonably good repair and free from accumulations of snow and ice. (c) Landlord shall not lease any.portion oft he Building for a telemarketing use. 6. Alterations. Tenant shall make no alterations, additions or improvements to the Premises the cost of which exceeds $1,000.00 without the prior written, consent of Landlord. All such alterations, additions or improvements shall be at Tenant's expense, shall be completed in accordance with all applicable federal, state and municipal laws, and shall become a part of the Premises when made and shall remain upon and be surrendered with the Premises at the end of the term, unless Landlord shall, at Landlord's option, upon fifteen (15) days' written notice prior to the expiration of the term, direct the Tenant to remove the alterations, additions or improvements. In which event, Tenant shall, at Tenant's cost, remove the alterations, additions or improvements and return the Premises to the same condition as that of the Commencement Date, wear and tear excepted. 7. Mechanics' Liens. Tenant shall keep the Premises and the building free from any liens arising out of work performed, materials furnished or obligations incurred by Tenant. Notwithstanding the foregoing, if any mechanics' or other lien shall be filed against the Premises purporting to be for labor or material furnished or to be furnished at the request of the Tenant, then Tenant shall at its expense cause such lien to be discharged of record by payment, bond or otherwise, within forty-five (45) days after the filing thereof. If Tenant shall fail to cause such lien to be discharged of record within such forty-five-day period, Landlord may cause such lien to be discharged by payment, bond or otherwise, without investigation as to the valtdity thereof or as to any offsets or defenses thereto, and Tenant shall, upon demand, reimburse Landlord for alia mounts paid and costs incurred including attorneys' fees, in having such lien discharged of record. 8. Condition of Premises. Tenant acknowledges and agrees that there have been no representations or warranties made by or on behalf ofLandlord with respect to the suitability of the Premises f~r the conduct' of Tenant's' business The taking of possession of the Premises by Tenant shall conclusively establish that the PremiSes .were at such time in ~atisfactory condition, order and repair. 9. Assignment and Sublettin~. Tenant shall not, either voluntarily or by operation of law, assign, transfer, mortgage or otherwise enc,~mher this Lease or sublet the Premises or permit any part thereof to be used or occupied byanyone other than Tenant, without the prior written consent of Landlord, except for an assignment to another entity in which Tenant holds a controlling interest. Tenant shall'give notice to Landlord of any assignmen~, regardless ofwhetherLandlord's consent is required. Tenant shall remain liable for the payment and 'performance of any assignee or subtenant under this Lease. Any transfer of this Lease from Tenant by merger, consolidation'or liquidation, or any change in ownership of a majority of its outstanding voting stock shall not constitute an assignment for the purpose of this Lease and shall not require the prior written consent of Landlord in each instance. 'The acceptance of rent or any other payment due LandlOrd hereunder, regardless of the party tendering such payment, shall not be construed or deemed to be a consent by Landlord to any assignment or sublet of the Premises to which the Landlord did not otherwise specifically consent in writtng. 10. Access to Premises. Landlord, its employees and agents shall have the right to enter the Premises at any reasonable time, upon prior notice to Tenant and accompanied by a management representative of Tenant, for the purpose of examining or inspecting the same, showing the same to prospective purchasers and mortgagees, and making such alterations, repairs, improvements or additions to the Premises as Landlord may deem necessary or desirable. In the event of an emergency, Landlord may, at any time, enter by means of a master key (or forcibly in the event of an emergency) without liability to Tenant and without such entry constituting an eviction of Tenant, termination of this Lease or a breach of Landlord's warranty of Quiet Enjoyment. Landlord shall take reasonable steps to minimize any disruption of Tenant's business and shall keep confidential any information gained during such access with respect to Landlord, its business, or its clients and shall cause Landlord's employees, agents and invitees to do the same, and shall abide by Tenant's rules with respect thereto. - 6 - 11. Repairs and Haintenance and Utilities. (a) Landlord shall keep the Premises in good maintenance and repair at the sole cost of Landlord, provided that Tenant shall pay for any repair or maintenance cost which does not exceed $500. Such payment shall be made within fifteen (15) days of Tenant's receipt oft he invoice for such repair or maintenance item.. Landlord shall repair and maintain the Building, including, without limitation, the parking lot, sidewalk, roof, heating, air conditioning, plumbing and electrical systems, building exterior and structural components, landscaping, Window anddoor glass, and snow and ice removal from .parking areas and sidewalks. Tenant shall provide its own Janitorial service at Tenant's cost. (b) The cost of electricity and gas furnished to the Premises, shall be paid by the Tenant. It is agreed that because gas is not separately metered that Tenant's share of the cost of gas shall be forty-six percent (46%) of each monthly or other periodic bill for gas servi6e ~o the Building. Landlord, at Landlord's cost, shall have a flow meter installed to measure the flow of electricity to the Premises. Tenant shall pay a portion of each electric bill for the Building based on the electricity consumption as determined by the flow meter. Tenant's share of the cost of gas and electricityshall be paid to Landlord by Tenant within fifteen (15) days Of Landlord delivering to Tenant the utility bill and a calculation of the amount due from Tenant. 12. Taxes. Landlord' shall pay all real estate taxes, or other assessment, imposed upon the Premises, as and when they become due. Tenant shall be responsible for all sales taxes, personal property taxes, occupancy taxes and other'taxes resulting from Tenant's use and occupancy of the Premises. 13. Surrender Of Premises. At the end of ~he term of this Lease, Tenant shall surrender the Premises to Landlord, together with all alterations, additions and improvements thereto, in broom clean condition and in good order and repair except for ordinarywear and tear and damage for which Tenant is not obligated to make repairs under this Lease. If not then in default, Tenant shall have the right at the end of the term hereof to remove any equipment, furniture, trade fixtures or other personal property placed in the Premises by Tenant, provided that Tenant promptly repairs any damage to the Premises caused by such removal. 14. Indemnification and Liability. (a) Tenant shall indemnify, hold harmless and defend Landlord fromand against any and all costs, expenses (including reasonable counsel fees), liabilities, losses, damages, suits, actions, fines, penalties, claims or demands of any kind and asserted by or on behalf of any person or governmental authority, arising out of or in any way connected with, and Landlord shall not be liable to Tenant on account of: - 7 - (i) any failure by Tenant to perform any of the agreements, terms, covenants or conditions of thisLease required to be performed by Tenant; (ii) any failure by Tenant to comply with any statutes, ordinances, regulations or orders of any governmental authority applicable to Tenant; or (iii) any accident, death or personal injury, or damage to or loss or theft of property, which shall occur in or about the Premises, except as the same may be caused by the negligence of Landlord, its employees or agents. (b) Tenant shall be relieved of its obligation to. indemnify Landlord under Paragraph 14(a)(iii) above to the extent that, and so long as, Tenant provides at Tenant's cost, and maintains in force, insurance fort he benefit of the Landlord, enforceable by Landlord as a named insured, .with a carrier and in amounts reasonably satisfactory to Landlord against the costs, expenses, liabilities, losses and damages which may arise out of the occurrences referred to in Paragraph l~(a)(iii) above; provided, however, Tenant's insurance policies shall not provide coverage for and Tenant shall have no obligation to indemnifyLandlord with respect to any costs, expenses, liabilities, losses or damages resulting from the negligence or wilful misconduct of the Landlord, its employees, partners, invttees, or agents. . (c) Landlord shall indemnify.and hold harmless Tenant from and againstany and all liability, fines; suits, claims, demands, actions, costs and expenses of any kind or nature of anyone whomsoever, due to or arising out of (a) any breach, violation or non-performance of any covenant, condition or agreement in this Lease set forth and contained on the part of Landlord to be fulfilled, kept, observed and performed; (b) any damage to property occasioned by.Landlord's construction, alteration, restoration of the Premises, Building, and land; and/or (c) any injury to any person or persons, including death resulting at any time therefrom, or damage to property arising from or out ofany occurrence in, upon or at the Premises, Building or land oranY part thereof, occasioned by an act or omission of Landlord, its agents, contractors, employees, servants, lessees, licensees, or franchisees. Injury or damage caused by or resulting from the wilful misconduct or negligent act of the Tenant, its agents' or employees is excepted from the provisions of this section. 15. Tenant Liability and Insurance. (a) Landlord shall not be liable for any damage done to or loss of Tenant's personal property or damage or loss suffered by the business.or occupation of Tenant arising from any acts or neglect of other persons or from bursting, overflowing or leaking of water or - 8 - seWer pipes or from the heating or plumbing fixtures or from electric wires, or from gas or odors, except as may be caused by the negligence or willful misconduct of Landlord, its employees, partners, fnvitees, or agents. (b) Tenant shall maintain General Commercial Liability and property damage insurance during the initial Lease term and any renewal periods in the amount of not less than Three Million ($3,000,000) Dollars combined single limit for each occurrence and in the aggregate for bodily injury, death and property damage. Landlord shall be named as an additional insured on all policies of insurance relating to the Premises and the policies shall provide Landlord with not less than thirty (30) days' notice prior to cancellation or nonrenewal. Tenant shall provide Landlord with certificates of such insurance policies and any renewals thereof, such certificates to be delivered to Landlord on the Co-,zencement Date and each renewal period thereafter of the term of the Lease. 16. Fire o~ Casualty Insurance. (a) Landlord shall maintain fire insurance with all risk, broad form type coverage, on the Building with solvent and responsible Companies authorized to do bustness in the Commonwealth of Pennsylvania in an amoUnt equal to not less than eighty percent (80%) of the replacementcost of the Building. (b) If less than twenty-five percent (25%)'of the Premises are damaged or destroyed by fire or other casualty, the Premises shall be repaired or rebuilt by Landlord, to the extent of insurance proceeds avail~ble therefor, and the rent Until such repairs shall be made shall be fairly and Justly apportioned from the date of such fire or other casualty according to the part of the Premises which is.usable by Tenant. If more than twenty-five percent (25%) of the Premises are damaged or destroyed, either Tenant or Landlord may, at their option, within thirty (30) days of the date of the casualty,. terminate this Lease. In which event, the security deposit shall be returned to the Tenant and rent shall abate as of the date of the casualty. If neither elects to terminate thts Lease, Landlord agrees to repair or rebuild within one hundred twenty (120) days after such casualty occurs and rent shall abate until the Premises are rebuilt. Landlord shall repair or rebuild the Building and Premises in a good and workmanlike manner to substantially their former condition. No portion of insurance proceeds necessary to replace, restore or repair the Premises shall be utilized to repair, restore or replace Tenant's fixtures, or furniture, equipment or other personalty. (c) Tenant shall be solely responsible for any damage caused by fire, vandalism, malicious mischief, collapse, water damage, weight of ice, sleet or snow, sprinkler leakage and all other hazards or casualty to the Tenant's personal property, equipment, furniture and other contents located in and/or Tenant's improvements - 9 - to the Premises, unless caused by Landlord's negligence or willful misconduct, or that of its employees, partners, invitees or agents~ 17. Subordtn~tion. Non-disturbance and Attornment. Tenant accepts this Lease subject and subordinate to any mortgage or mortgages (including, without limitations, the notes or other obligations secured thereby and any and all renewals, modifications, consolidations, replacements or extensions of any such mortgages or the notes or other obligations secured thereby) now in existence or hereinafter made from time to time, affecting the title to the Premises or the Building or the real property on which the Building is located (or any part thereof) or Landlord's interest therein. Tenant also accepts this Lease subject and subordinate to all instruments in the chain of fee title to the Premises or the building or the real property on which the building is located, including any and all renewals, modifications, consolidations, replacements or extensions of such instruments. Tenant shall execute, acknowledg~ and deliver to the holder of any such mortgage or to any of the parties to such instruments, at any time upon demand by such holder or by any such party, any releases, certificates or other documents that may be reasonably required by such hblder or by any such party, for t~e purpose of evidencing the subordination of this Lease to such mortgages-or instruments or to any renewals, modifications, consolidations, replacements or extensions thereof. In the ~vent of a sale under any mortgage (or any note or other obligation secured thereby) to which this Lease is subordinate, or a taking of possession of the Premises by the mortgagee or'other person acting for or through the mortgagee under any mortgage to which this Lease is subordinate, then, and upon the happening of any such events, Tenant shall attornto and reco~nize as Landlord hereunder the party who, but for this Lease, would be entitled to possession of'the Premises, provided that such documents shall confirm that Tenant's possession hereunder shall not be disturbed so long as Tenant is not in default under this Lease and Tenant shall attorn to such mortgage holder or other party as hereinafter provided. 18. Condemnation. If the whole oft he Premises shall be condemned or taken either permanently or temporarily for any public or quasi-public use or purpose, under any statute or by right of eminent domain, or by private purchase in lieu thereof, then in that event, the term of this Lease shall cease and terminate from the date of title vesting in such proceeding or purchase and Tenant shall have no claim against Landlord for the value of any unexpired term of said Lease, and shall release untoLandlordany such claim it may have against the condemnor. In the event a portion only of the Premises or 25% or more of the Building shall be so taken (even though the Premises may not have'been affected by the taking of some other portion of the building containing same), Landlord or Tenant may elect to terminate this Lease from the date of title vesting in such proceeding or purchase. If neither party elects to terminate within thirty (30) days after such vesting, Landlord may elect to repair and restore, at its own expense, the portion not taken and thereafter the rent shall be reduced proportionately to the portion of the Premises taken. Tenant shall be entitled to pursue a separate claim against the public agency bringing the eminent domain action for the cost of moving and other compensable expenses. to time, Landlord, 19. Estoppel Certificates. Tenant shall, at any time and from time within twenty (20) business days following written request from execute, acknowledge and deliver to Landlord a written statement - 10 - certifyin§ the date to which the rent reserved hereunder has been paid, and certifyin§that there are not, to Tenant's knowledge, any uncured defaults on the part of Landlord hereunder, or specifying such defaults if any are claimed. Any such statement may be relied upon by any prospective purchaser or mortgagee of all or any part of the Premises or the building or real property on which the building is located. Tenant's failure to deliver such statement within said twenty-day period shall be conclusive upon Tenant that this Lease is in full force and effect and unmodified, and that there are no uncured defaults in Landlord's performance hereunder. 20. Default. (a) The occurrence of any of the following shall constitute a material default and breach of this Lease by Tenant: (i) A failure by Tenant to pay the rent reserved herein, or to make any other payment required to be made by Tenant hereunder, Where such failure continues for ten (10) days after written notice from LandlOrd such payment was due; (ii) A failure by Tenant to observe and perform any other provisions or 'covenants of this Lease to be observed or ~performed by Tenant, where such failure continues for thirty (30) days after written notice thereof frOmLandlord to Tenant provided; however, that if the nature of the default is such that the same cannot reasonably be cured within such thirty-day period, Tenant shall not be deemed to be in default if -Tenant shall within such period commence such cure and thereafter diligentlyprosecute the same to completion; or (iv) The making by Tenant of any assignment for the benefit of creditors; the adjudication that Tenant is bankrupt or insolvent; the filing by or against Tenant of a petition for reor§aniz~tion or arrangement under any law relating to bankruptcy (unless, in the case of a. petition filed against Tenant, the same is dismissed within sixty (60) days after the filing thereof); the appoi~tment of a trustee or receiver to take possession of substantially all'of Tenant's assets located in the Premises or of Tenant's interest in this Lease (unless possession is restored to Tenant within thirty (30) days after such appointment); or the attachment, execution or levY against, or other Judicial seizure of, substantially all of Tenant's interest in this Lease (unless the same is discharged within thirty (30) days after issuance thereof). (b) Landlord shall not be deemed to be in default in the performance of any obligation required to heperf°rmed By Landlord - 11 - hereunder unless and until it has failed to perform such obligation within thirty (30) days after written notice of such default from Tenant to Landlord; provided, howeyer, that if the nature of Landlord's obligation is such that more than thirty (30) days are required for its performance, then Landlord shall not be deemed to 'be in default if it shall commence such performance within such thirty-day period and thereafter diligently prosecutes the same to completion. 21. Accelerated Rent. In the event of any default or breach of this Lease by Tenant as set f~rth in Paragraph 20 hereof, the rent reserved herein for the entire unexpired portion of the term of this Lease shall at Landlord's option thereupon immediately become due and payable. Tenant shall be obligated for such accelerated rent regardless of which, if any, of the remedies provided in Paragraph 22 hereof or provided by law Landlord elects to pursue, except that if Landlord elects to terminate this Lease as provided in Paragraph 22 hereof, Tenant shall not be obligated for any rent accrued beyond the date of such termination. o 22. Remedies. In the event of any default or breach of this Lease by Tenant as set forth in Paragraph 20 hereof, Landlord, at its option, may immediately terminate thisLease upon and by givingwritten notice of termination to Tenant, or Landlord, without terminating this Lease, may at any time after such material default orbreach, without notice or demand additional to that provided in Paragraph 20 hereof, and without limiting Landlord in the exercise of any other right or remedy which Landlord may have by reason of such default or breach (other than the aforesaid right of termination), exercise any one or more of the remedies hereinafter provided by law, all of such remedies (whether provided herein or by law) being cumulative and not exclusive: (a~ Landlord mayenterthePremtses (with or without process of law and without thereby incurring any liability to Tenant and without such entry constituting an eviction of Tenant or termination of this LeaSe) and take possession of the Premises and all personal property of every kind on the Premises, and Landlord may (i) apply against the accelerated rent and the expenses, including attorneys' fees, which Landlord' may have incurred in connection with such repossession, either the value of such personal Property or the proceeds, after selling expenses, from the sale of such personal property, whichever Landlord chooses to do, and (ii) at any time and from time to time relet the Premises or any part thereof for the account of Tenant, for such terms, upon such conditions and at such rental aS Landlord may deem proper% In the event of such relettlng, (a) Landior4 shall receive and collect the rent therefrom and shall first apply such rent against such actual and reasonable expenses as Landlord may have incurred in recovering possession of the Premises, placing the same in good order and condition, altering or repairing, commissions and charges, including attorneys' fees, which Landlord may have paid or reletting, and then shall apply such rent against the accelerated rent, and (b) Landlord may execute any lease in connection with such reletttn§ in Landlord's name or in Tenant's name, as Landlord may see fit, and the tenant of such reletttng - 12 - shall be under no obligation to see to the application by Landlord of any rent collected by Landlord, nor shall Tenant have any right to collect any rent under such reletting. However, Landlord shall credit Tenant for rental payments' received by Landlord from such reletting. No re-entry by Landlord shall be deemed to be an acceptance of a surrender by Tenant of this Lease or of the Premises; ~nd 23. Waiver. The failure :or delay on the part of either party to enforce or exercise at any time any of the provisions, rights or remedies in this · Lease shall in no way be construed to be a waiver thereof, nor in any way to affect the validity of this Lease or any part hereof, or the right of the party to thereafter enforce each and every such provision, right or remedy. No waiver of any breach of this Lease shall be held to be a waiver of any other or subsequent breach. The receipt by Landlord of rent at a time when the rent is in default under this'Lease shall not be construed as a waiver of such default. The receipt by Landlord of a lesser amount than the rent due shall not be construed to be other than a payment on account of the rent then due, nor shall any statement on Tenant'~ check or any letter accompanying Tenant's check be deemed an accord and satisfaction, and Landlord may accept such payment without prejudice to Landlord's right to recover the balance of the rent due or to pursue any other remedies provided in this Lease. No act or thing done by Landlord or Landlord's agents or employees during the term of this Lease shall be deemed an acceptance of a surrender of the Premises, and no agreement to. accept such surrender shall be valid unless in writing andsigned by Landlord. 24. Quiet Entovment. If and so long as Tenant pays the rent reserved hereunder and observes and performs all of the covenants, conditions and provisions 'on Tenant's part to be observed and performed hereunder, Tenant shall and may peaceably and quietly have, hold and enjoy the Premises for the entire term hereof, subject to all of the provisions of this Lease. Landlord shall take reasonable action not to schedule any work on. the Building which would materially interrupt Tenant's business operations during the hours' of 8:00 A.M. to 11:59 P.M. prevailing time Monday through Friday and 8:00 A.M. to 6:00 P.M. prevailing time on Saturday. 25. Signs. Landlord retains the right from time- to time to prescribe standards governing the size, shape, number, location, material and content of all exterior signs, decorations, fixtures and advertising devices. Tenant shall not decorate, paint or in·any other manner alter the exterior of the demised premises, and shall not install, affix or maintain any sign, decoration, fixture or other advertising device on the exterior of the demised premises or elsewhere, without first obtaining Landlord's written consent and complying in all respects with the aforesaid standards. The foregoing notwithstanding, Landlord consents to, and shall install atLandlord's expense, reasonable signage on the Building monument sign and on the main entry door identifying Tenant as an occupant of the Building. 26. Comoltance with Le=al Requirements. Tenant at all times shall comply strictly with all requirements of all duly constituted public authorities having jurisdiction as well as with the terms of all state~ federal or municipal statutes, ordinances or regulations which are or may at any time hereafter become - 13 - applicable to the Premises, to the activities conducted thereon, and to Tenant as lessee thereof. Tenant shall save Landlord harmless from all penalties, fines, costs and damages of every kind which may result from any failure of Tenant to so comply. Landlord shall, without demand and at Landlord's cost, comply with all requirements of any governmental authorities and law, orders, codes and regulations, includingtheAmerican With Disabilities Act, which apply to the Building (other than the Premises). 27. Cont-m{nAntS, Pollutants and Hazardous Waste. No contaminant, industrial waste, pollutant, toxic or hazardous waste or any substance of any kind or character shall be stored, processed, disposed of on the Premises or discharged directly or indirectly by Tenant into the environment (i) in such a manner as to incur present or future liability for the Landlord, or any owner or user of the premises or any other part of Landlord's property under any applicable law or governmental regulation, or (ii) into any sanitary sewer collection or treatment system, except in conformity with the requirements of applicable laws, rules, regulations and valid permits, now in effect or which become effective during the term of this Lease. Tenant shall indemni~yand hold Landlord harmless from any claims, liabilities or costs (including reasonable attorney's fees) which Landlord may incur as a result of Tenant violating the provisions of this Paragraph 27. Landlord shall indemnify, and hold Tenant harmless from any claims, liabilities, or costs (including reasonable attorney's fees) which Tenant may incur as a result of any conditions existing at the Premises prior to the date of thts Lease which are in violation of any appltcable law or governmental regulations covering hazardous waste or substances. The terms of this Paragraph 27 shall survive the termination of this Lease for a period of one year as a separate legally'binding covenant of the parties. 28. Payment of Tenant's Oblimations by Landlord. Landlord shall have the right, but shall have no obligation, to pay any claim or charge whtch' may ever.arise against'the Premises which Tenant shall fall to pay when due (after a ten (10) day notice); to pay any amount which Tenant has covenanted to pay hereunder and which Tenant shall fall to pay whe~ due; and to make any repairs to the premtseswhtch Tenant is obligated to make but has failed to do after notice by Landlord. The amount of any payment so made by Landlord and the cost of any repair performed by Landlord, together with interest at the rate of the "prime rate" as published in the Wall Street Journal, as adjusted from time to time, plus five percent (5%). from payment by Landlord to the date of reimbursement by Tenant, shall be additional rent due with the monthly installment of rent for the month next succeeding the date of such payment or repair. 29. Security DePosit. Landlord hereby acknowledges receipt from Tenant of the amount, if any, specified in Paragraph 3(c), to be held by Landlord as security for the payment of all rent and other sums of money which shall or may be payable for the full stated term of this Lease,'and for'the faithful performance by Tenant of all covenants and agreements made on Tenant's part in this Lease. Tenant shall have no right to require Landlord to indemnify itself from such sum of money or any part thereof with respect to any particular violation or default by Tenant, and the appropriation of said sum of money or part thereof to indemnify for any such default or violation shall be at all times discretionary with Landlord. Within thirty (30) days of termination of this - 14 - Lease, Landlord shall return to Tenant the aforesaid security deposit and accrued interest, less such amount as Landlord has appropriated therefrom under the provisions of this paragraph. The security deposit shall be held by Landlord in an interest bearing account and the interest earned on the account shall be paid to Tenant within thirty (30) days of each anniversary of the Commencement Date. 30. Landlord's Le=al Expense. In the event of any defaults under this Lease, the non-prevailing party shall reimburse the prevailing party for all attorneys fees and other costs and expenses incurred by prevailing party in connection with this Lease. 31. Successor. The respective rights and obligations provided in thisLease shall bind and shall inure tot he benefit of the parties hereto, their legal representatives, heirs, successors and assigns; provided, however, that no rights shall inure to the benefit of any successor of Tenant unless Landlord's written consent for the transfer to such successor has first been obtained as provided tn ParagraPh 9. 32. Govern{n_n~_~La_~. This Lease shall be construed, governed and enforced in accordance with the laws of the Commonwealth of Pennsylvania. 33. Separability. If any provision of this Lease shall be held to be invalid, void or unenforceable, the remaining provisions hereof shall in no way be affected or impaired and such remaining provisions shall remain in full force-and effect. 34. Cautions. Marginal captions, titles or exhibits and riders and the table of contents to this Lease are for convenience and reference only, and are in no way to be construed as defining, limiting or modifying the scope of intent of the various provisions of this Lease. .35. Gender. As used in thisLease, the word "person" shall mean and include, where appropriate, an individual, corporation, partnership or other entity; the pluralshall be substituted for the singular, and the singular for the plural, where appropriate; and words of any gender shall mean and include the other gender. 36. - Notices. Any notice, demand request or other instrument which is or maybe required or permitted hereunder shall be deemed sufficiently given if delivered in person or sent by United States certified mail, return receipt requested postage prepaid and addressed to the Landlord or Tenant, as the case may be, as follows: To Landlord: 36th Street Associates 415 Fallowfield Road Camp Hill, PA 17011 Attention: Terry L. Harris To Tenant: R.M.H. Teleservices 40 Morris Avenue Bryn Mawr, PA 19010 Attention: Michael Scharff 15 - Either party may change its address by notice so given to the other. Notices given by hand shall be deemed given on the date of delivery and notices given by certified mail shall be deemed given on the date that is three days after deposit in the United States mail 37. Jurisdiction. Tenant hereby agrees and consents to jurisdiction in Cumberland County, Pennsylvania. 38. Brokers. Tenant hereby certifies that it has not dealt with any real estate broker regarding this Lease, except Landmark Commercial Realty, Inc. and Cushman & Wakefield, and that no finder's fees have been earned by a third party. Landlord shall be responsible for any fee or connnission due to Landmark Commercial Realty, Inc. and Cushman & Wakefield. 39. Exhibits and Riders, Attached to this Lease and made part hereof, and initialed on behalf of both parties simultaneous with the execution of this Lease, are Exhibits A and B. 40. Entire~gr~ement. This Lease, including the Exhibits A and B contains all the' agreements, conditions, understandings, representations and warranties made between the parties hereto with respect to thesubject matter hereof, and may not be modified orally or in any manner other than by an agreement in writing signed by both par~tes hereto or their respective successor in interest. 41. Rimht of First Refusal. Subject tO the prior right of McKonly & Asbury, C.p.A.'s, Tenant shall have a first right to lease the first floor of the Building (the "Additional Premises") In the event that Landlord shall receive an offer to lease any or all of the Additional Premises and McKonly & Asbury does not exercise its right of first refusal, the Landiord shall notify Tenant in writing, setting forth the name of the proposed tenant for the Additional Premises and the proposed terms for the lease. Tenant shall have ten (10) days from the receipt of Landlord's notice to notif~ Landlord, in wrtting, that Tenant is exercising its first right hereunder to lease the Additional Premises, or portion thereof which is the subject of the offer to lease, on the same terms and conditions as set forth in the'lease proposal. If Tenant does not notify Landlord in writing within ten (10) days of receipt of the notice from Landlord that Tenant:exercises its first right to lease, then Tenant shall be deemed to have waived its right hereunder, and Landlord may lease the Additional Premises, or part thereof, to the party offering to lease. 42. No Smoktn= BuildinR. Smoking is prohibited in the Premises and the Building and on the property on which the Building is located, and Tenant covenants that it shall not permit Tenant's officers, partners, employees, agents, contractors, or tnvttees to smoke tobaccoor any other substance in the Premises or the Building or on the property on which the Building is located, except for the area within the Premises designated by the Landlord as a smoking lounge as shown on Exhibit B. 43. Landlord's Lien. Landlord hereby waives any right, title or interest in, to or under and any right to a security interest in any of personalty equipment and other property of Tenant or any other person located in - 16 - or on the Premises. Landlord agrees to execute and deliver to Tenant such documents confirming such waiver as Tenant may reasonably request. 44. ZoninK. Landlord shall provide Tenant with the applicable portions of the Hampden Township Zoning Ordinance for the uses permitted as a matter of right in the Building and Premises. Tenant shall determine whether Tenant's proposed use is permitted in the Premises. IN WITNESS WI{EREOF, the parties hereto, intending to be legally bound, have duly executed this Lease and have initialed the Exhibit hereto, the day and year first above written. WITNESS: 36TH STREF4T ASSOCIATE R.M.H. TELESERVICES - 17 - EXHIBIT "A" % ~t ! ,0 0 0 0 0 0 0 0 0 0 The enclosed Exhibit "B" Plans and Specifications are preliminary. TheTenant shall meet with the Landlord's representative and Contractor no later than Thursday, September 5, 1996 to approve final plans and specifications which shall then serve as Exhibit "B" to this Lease. AUG-~O-96. FRI 04:25 PI1 MCKONLY & ASBURY August 22, 1996 FAX NO, 7177617944 P, 05/i9 McKonly & Asbury 415 FMlowfield Road Camp Hill, PA 17011 Attention: Mr. Clarence Asbury Ref: Third Floor Tenant-Cost Estimate Dear Clarence: As requested, the following is a scope of work and budget estimate for tenant fit out of the third floor. Scope of }vork 1. Permits/Fees/Engineering/Supervision. 2..Approximately 460 L.F. Of Metal Stud }Vails F~th ~" Drywall Each Side (Layout Per Attached Schematic Plan). 3. Seventeen (17) Hollow Metal Frames, Seventeen (17} Solid Core Birch Doors, Seventeen (17) Sets Of Hinges And Lock~et~ ,,Is }Veil As Two (2) Sets Double Doors Vgith I'[ardware. 4. Two (2) 3'x4' I-loilow Metal F/indows }vith'~ " Glazing. · 5. 2x4 Lay-In Ceiling And Grid {~ ThirdF!oor. 6. Counter Tops Per Attached Plan & Program. 7. Commercial Grade Carpet And Vinyl Base (~ Third Floor. 8. Painting Of A Il }Vails And Do6~ ~.Third Floor. 9. Batt Insulation Above Acoustical Ceiling (~ Third Floor. 10. Install Insulated Ductwork On The Third Floor, New Supply & Return Air Registers & Grills, Flexible Duct Run Outs, Balancing And Control }viring For Individual Areas A~ Large Area Of Third Floor Per The Attached Plan And Program. 11. 120 2x4 £ay-In Fluorescent Lights And Receptacles ]'er Attached Plan And Program. 12. Liebert Unit And Smoke Eater Are Priced Separately And Not Included In Base Proposal 13. Platform Area Per Plan And Program. The cost for this work, per the scope listed above, is One Hundred, Eighty-Two Thousand, Eight Hundred, Eighty-Five Dollars ($182,885. 00) Base. I 4 BARLO CIRCLE P.O. BOX432 ..-'~UG-30-96.FRI 04:25 PM MOKONLY & ~SBURYF~X NO, 7177617944 P, 06/~9 2 The cost of the Liebert Unit And Smoke ,Eater would add Twelve Thousan~ Three Hundred, Forty- Five Dollars ($12,345. 00) to the Base Price. Please call if you have any questions or required additional information. Best of luck on your tenant negotiations! Very truly yours, LOBAR ASSOCIATES Paul F~ Hedin, Jr. Estimator PEH:wlh Copy: Lee E. Eichelberger, President Bob Romako Terry Harris John Stillwaggon Tom Posavic - Landmark ~ , P. 07/19 RUG-30-96 FEI 04:28 PI1 IICI(ONLY & P, SBUEY F~ NO. 7177617944 c~1~ 'd '"~.~.l. , .. ~ ': -' AUO-30-96.FRI 04:27 PM HOKONLY ~ ASBURY FAX NO, 7177617944 P, 08/19 4ZS ~ALLG~ ROaD COMPUTER/FEL~O~ EC~U~PMBA~ ,b,,,I--' ..... ' ''- ! ,,1. Gutitl · fL or 141~t sltelroo bt, ~lo w~ll or computer room ftpproz 8blr with I po~ver I1111e pfotec~f 8trJp of' lO 01dle4O pllrlJM to thO. 3. befall 6- 8 ~et or brmles eount~ on tm-', wull apprc~m~ 30 qud outbt beneath /mUll dddietted ~0 amp quid efreult on wall benoeth tefapbono equipment boards, heron 4 · s f~t 3/s Inch piTwomt on hr wsll rot communlea~fone equipment, -' ' ~U0-~0-95 FRI 04:~,~,.~g~kY & ~SBURY F~X NO, 7177617944 P. 09/]9 ROOM 2, Zn,~ll At neousm7 one ebc~leol outlet on each wtll cent4red. ~UG-"30-96. FR I 04: 2.8. PI~ ~IOKONLY & ASBURY Rl~-I ~RYN I'IRWR RCCTG FAX NO, 7177617944 P, lO/t9 1. ~ · fJal~ window approxlmit~Y 3 x 4 feet i~JnK out into op~o &tee, ~ top ofw~mdo~r with door ~ F, llmtrJcat otttl~s ou mr.b ~llL RUG-30-96, FRI 04:~2.8..PM....Hg.K.O_N_LY & RSBURY ~UG-16-~56 18:06 F~X NO, 7177617944 .- ~" RUG-~O-96. FRI 04:29 Pti tiOKONLY 8, RSBURY F~X NO. 7177617944 P, 12/19 L Install one dupi~ oufltt on each walt, *' "~ RUG-:~O-96 FRI 04:2.9_ P.M · .MCI{ONLY & RSBURY FAX NO, 7177617944 P,~3/19 L. OtD~GE 3. Throi duptox outJets on inside wul; f~veudlu; .qulpmeat · AU0~30-96 FRI 04',30 PH HOKON. L,Y..~_..~.s. BuR¥. F;~X NO, 7177817944 ' P, 14/19 STOR~G~COI'Yt~AX ROOM I. pkOn. ]tek lor bx Mid ~opler m?e.h~.. ~ &rap ~il~llt I IlO voit* JJ~C~/ ,. -' RU.G-30-96. FRI 04:3~0o.P.I'1..._i"IC.K. QN_L.Y & ,qSBURY ~ AU~_16.199~ 18~ R~ BRYN ~ ACCTG F~X NO, 7177617944 window cut into w~fl sligned wtOt top or door appror3nmtel~ 3ft ~,~ t~ r,l~.tflo~ outMt Jf not a~remJy tvnittblo b~low whdow ~o tho rJsht side. Electrtcfd outt~s on esel~ well t~ not ~rudy svo~ble. ,; .... ~UG-3'0-96 FRI 04:31 PM MOl(ONLY & P~$BURY FAX NO, 7177617944 P, 16/t9 OPEN T~'Lg~G FLOOR ~ OP WORICaTA'T[02~. W~ WILL 3. HAND. DP~Y~'..q$ ~q' THI~- RI~TKOOM$ ;'N~TEAD O? PAP;F.. 4. CAitPBT TI~OUOHOUT T~E FLOOlt SHOULD BE ~ OZ. NYLON P1L~. "RUG;30-96 ~RI 04:31PH ~CKONLY & ~SBURY R~ I~NI'tc~ACCTG FAX NO. 7177617944 'P. 17/1'9 P. 1P-/15 SMOKIIqG LOUGNE I. VCT ~ OOULD BI~ II~TAI. I,~ IN ~ NOI'4 SMOKIlq(3 LOUNOB BUT I ]LE~ Y-t'z~z THIS MAK~ BB'DIFFICULT TO PIPS TH~ 'WATBR. O'V'HIL TH1 - ~" ~U~-~O-96. FRI 04:32 PH HOKONLY & RSBURY FR× NO, 7t77617944 P. 18/19 LOBBY ENTRANCZ ARL~ 1. GLASS DOOlt,S INTO 71~ ~N AItS~ 2. OLASS DOOu OK WOOD ~ TLS OPBN TELBMAR~TI~O ~U~O-~30-~6 FRI 04',32 P~I ~OKONLY & ~SBURY NO. 7177617944 P. 19'/19 EXHIBIT B 36TH STREET ASSOCIATES 415 FALLOWFIELD ROAD, 2ND FLOOR C_AMP HILL, PA 17011 (717) 761-7910 FAX (717) 761-7944 Septen~oer 11, 2001 VIA, CERTIFIED MAIn MR MICI-IAEL SCHARFF RMH TELESERVICES 40 MOP~RIS AV~ BRYN MAWR PA 19010 Dear Mr. $charff: We are writing ~o notify you that the lease payment due to us for September 2001 has not been paid in accordance with our ],ease agreement. The total re~ta], pa~ent due is $11,945.33; your fi~-m offs~t the security deposit of $10,404.00 against the lease payment and issued a net check in the amount of $1,$41.33. As no,ed in Paragraph 3(a) of the lease agreement, rent is due without right of setoff. Moreover, the security deposit is not to be considered advance rent. As we had discussed with Tom Pullman in AugUst, there are a number of damages . that must be corrected before your security deposit can be returned. Under the provisions of the lease agreement, the security deposit will be held by us intact until such time aa the damages are repaired or a settlement payment e~tablished. Please £orward the additional rent due of $10,404.00, together with a S% late payment penalty of $599.27, to us immediately. Shoul~ you have any q~estions, ~lease call (~17) 761-7910. Vex7 truly yours, 36TH STREET ASSOCIATES Robert A. Romako Partner C: Thomas Pullman Wayne M. Pecht, Esq. \\M-A\VOLl\~JBC\CorJoyce\Scharff, Michael RMH-rar.doc :.. ......... :...: ".;, . · · JEANNETuc. laA,. 001 _~* '.RMH -TELESERVICES, ' INC..~o.~sa~ : ~: '.'~ .o~ ^~Nu~ . ' '. ~ BRYN MAW~ PA 19010 ' DATE PAY ********** One Thousand Five Hundred Forty'One and 33/100 *********** AMOUNT $ 1,541.33 $50,000,00 OR GREATER REQUIRES 2 $1QNATURSS TOme 36~:~T1~EET ASSOCIATES oF CAM~:::~L"PA 17011 RMH TELESERVICES, INC. 54340 ~ RE~REN~ ~MBER ~O1~ ~ GRO~ ~OU~ Ol~ T~ N~ ~U~ P~D ~ ~ 09/01 Sep 1 11,945.33 0.00 11,945.33 ~R~T DEPOSIT~Aug 28 (10,404.00) 0.00 (10,404.00) TOTAL ~ 1,541.33 0.00 EXHIBIT C 3 6TH STREET ASSOCIATES 415 FALLOWFIELD ROAD, 2ND FLOOR CAMP HILL, PA 17011 (717) 761-7910 FAX (717) 761-7944 September 27, 2001 VIA: CERTIFIEDMAIL MR MICHAEL SCHARFF RM}{ TELESERVICES 40 MORRIS AVE BRYN MAWR PA 19010 Dear Mr. Scharff: We are writing to submit a claim for damages to our facilities at 415 Fallowfield Road, Camp Hill, Pennsylvania incurred by your actions as tenants during the period October 1, 1996 through September 30, 2001. This claim is being made in accordance with Paragraph 13 of the Lease Agreement. Our claim for damages totals $40,068.25. We have enclosed estimates to repair damages to both the facilities and carpeting. These ~estimates have been prepared by the contractors who performed the buildout in 1996, since they are the ones most familiar with the building and its original condition. The estimate from Lobar Associates only includes repairs for damages beyond normal wear and tear. In many cases they represent intentional damages by your employees. The carpeting, which Essis and Sons estimates has a 15 year useful life, has been completely destroyed in all areas due to employee abuse and needs to be replaced. Mr. Thomas Pullman of your firm conducted a walk-through inspection of all areas on September 20, 2001 and noted all these damages. Mr. Pullman also took pictures to document the damage we observed. We have additional photographs to document the damages as well. We request payment for these damages and carpet replacement in the amount of $40,068.25 be made to us by October 8, 2001. We also note that you unilaterally offset the security deposit against the final month's rent, so there is no longer a security deposit to apply against the damage charges. \\M-A\VOLl\ABC\CorJoyce\Scharff, Michael RMH~claim-rar.doc Mr. Michael Scharff Page 2 September 27, 2001 Please address any questions to my attention; my telephone number is (717) 761-7910. Thank you for your immediate attention to this matter. We appreciate the spirit of cooperation our two organizations have enjoyed over the last five years. However, please be advised that we will pursue any and all legal remedies available to us if this matter is not resolved to our satisfaction. Very truly yours, 36TH STREET ASSOCIATES Robert A. Romako Partner RAR/jg Enclosures C: Thomas Pullman Wayne M. Pecht, Esq. \\M-A\VOLl\ABC\CorJoyce\Scharff, Michael RMH-claim-rar.doc September 26, 2001 Attention: Mr. Bob Romalto IRef: Teleser~iees Repair~ at Various Areas IDear Bob: LOBAR ,4550CIA ~ tx plea~ed to submit the foilowlng propo~al/scop~ of work for your review: ~ Bathrooms: i ~ · Soap dispenser lid mts~ing ffYomen 's) · Soap dispen~erinMen'sroom (replace) · Four (4,) totletpaper dispenser covers cracked (replace) (double roll dispen~rs) · Coat hooks missing on three ($) stall doors · Men's room ~tall door dented (H.C. door) · Women's room toilet tank top cracked (replace) · Men's door closure cover missing Lunch Roon~ · I~falls need to be aleatt~ andpossibly replaced due to food thrown on walls and remove plexiglass · Floor files broken/mis$ing/ioo~e. Five (5) broken, strip/clean and war floors Smoldne Lounge: · Repair walls, replace ceiling tile, ceiling track, fights, ceiling vents due to smoke damage and staining ·Replace door due to telephone cord damage Eieva(.o~ · Remove gra. ffififrom mahogany elevator ponel~ 4 BAR. LO CIRCLE P.O, BOX452 · DILLSBURG, PA 17019.0432 TEL: 717) 432-3429 FA,E: (717) 432.754~ · £-Matl: Iobarinfo(~lobarttstoe,~orn ~YBB: www, lobarazsoc, com Frqn~ Entrancw · l~epair/replace ~cratches tn gla~panel~ O£fice Areas: · Repairdamage to eleven (11) wooddoorsandr~place 11 wooddoors · Repair holes in wall~from wall anchors, screws and. tacks Phone Room~ · Patch walls · Remove telephonepanel board and lines Our proposal for the above is Twen~ Thoustmd, Fifty. Seven Dollart. Ilrmk you for the opportunffy to submit a Proposal to you. If you haw any questions, please feel tree to contact me. R Michoel Samples General Superintendent BMS:sll Copy: Lee E. Eichelberger, President Prop O l ESS!S & SON'S IN(: 8220 C/U~LISE PIKE 717~97-.q423 FAX 717.~97-7797 Date: ~em~r tg 2~1 E~ J~ph ~s TO: M~only & Asbu~ 415 Fallo~eld Road Camp Hill PA 17011 Ja~ ~: 3r~ Fi~er ~ Re~m:ement 885.00 (ds Remove direct glue caq~ , 2.75 2,433.75 17~.~ =~ r~ and ~a~ 1~ ~11 b~e 1.75 2,g75,00 PWeee-~m~lb 30 days fi.om estimate dar EXHIBIT D ROBERT H. LONG, SHERILL T. HOYER JAN P. PADEN RICHARD B. WOOD ATTORNEYS A~ LAW TWELFTH FLOOR ONE ~OUTH ~ARKET SQUARE P,O. BOX ~146 HARRISBURG, PA 17108-1146 TELEPHONE (717) 233-5731 FAX (717) 231-6676 EMAI L jhurley~rhoads-sinon.com W E B S I T E: w~.rhoads-sinon.com November 9, 2001 DIRECT DIAL NO. (7t7) 231-6616 FILE NO, 5489/02 VIA {~ERTIFIED MAIL RETURN RECEIPT REQUESTED Ms. Pamela A. Michaels Vice President RMH TELESERVICES, INC. 40 Morris Avenue Bryn Mawr, PA 19010 Re: Lease, dated August __., 1996 bet~veen 36'h Street Associates and RMH Teleservices, Inc. - 415 Fallmvfield Road, Camp Hill, PA Dear Ms. Michaels: My firm has been retained to represent 36'h Street Associates with regard to the above-referenced matter. Enclosed is a revised itemization of tire cost for repairing the numerous damaged items in the premises leased by RMH Teleservices, or in areas of the building for which the damage can be attributable to RMH Teleservices. Your correspondence to 36'h Street Associates attempts to characterize the damage as "reasonable weal' and tear". 36"; Street Associates can provide expert testimony that the damages in question ar~: far in excess of reasonable wear and tear and in most instances could }rave only reasonably ~csulted from intentional acts to cause the damage. A good example oF this is the damage to the mahogany wood panels in the elevator. This elevator was used to serve the third floor premises being leased by RMH Teleservices. Access to tire other floors was locked out on the elevator service panel. Initials or words were carved in these panels in numerous locations. Likewise, damages to the restrooms included several deep dents in the men's room stall door which any reasonable person would conclude were made by someone pounding tbeir fist or air object against the door; tire breaking of the top to the toilet in tire women's restroom which any reasonable person would conclude could have only resulted from someoue dropping the tank top; and the removal of coat hooks from the interior surface of three of the toilet stall doors; and the removal of a soap dispenser and soap dispenser lid in the 407099, I November 0, 2001 Page 2 restrooms. One of these items in isolation could be attributed to an accidental event, but these numerous items of damage evidence a pattern of behavior by tbe employees of RMH Teleservices which at best was a total disregard for the property of the Landlord, and at the worst intentionally damaging the leased premises. Your letter also completely mischaracterizes the condition of the carpet in tlre leased premises. We have experts prepared to testify that they have never seen such extensive damage to a carpet over a comparable period of time and that the abuse of the carpet was so great that the carpet could not have been cleaned to a serviceable condition. As to your allegation that tire estimaled cost is exorbitant, the contractor presenting the proposal to complete the repairs has been in business for many years and has an excellent reputation for pertbrmance and fair dealing. 36'}' Street Associates is prepared to commence legal action against RMII Teleservices unless payment of $40,068.25 is remitted witbin the next ten (10) days. Please address all correspondence regarding this matter to my attention. Very truly yours, JFH/dnh Enclosure cc: Mr. Robert Romako, CPA Mr. Terry L. Harris, CPA RIIOADS & SINON LLP · Complete items 1, 2, and 3. Also complete item 4 if Restricted Delive~ is desired. · .~dnt your name and address on the reverse s~ that we can return the card to you. · ~tach this card to the back of the mailpiece, o,r on the front if space permits. 1. Article Addressed to: Ms. Pamel A. Michaels Vice President RHH Teleserviccs, Inc. 40 Horris Avenue Bryn ~awr, PA !901© 2. Article Number (Transfer from service label) PS Form 3811, March 2001 X .... F'I Agent [] Addressee D. Is delivery address different from item 17 [] Yes If YES, enter delivery address below: [] No [I J 3. Service Type ~v, ertJfied Mail [] Express Mail [] Registered [] Return Receipt for Memhandise [] Insured Mail [] C.O.D, ' ~.. Restricted Delivery? (Extra Fee) [] Yes 70011940 0001 2181 Ob13 Domestic Return Receipt VERIFICATION Robert A. Romako, deposes and says, subject to the penalties of 18 Pa. C.S. § 4904 relating to unsworn falsification to authorities, that he is a general parmer of 36th Street Associates, flint he makes this verification by its authority and that the facts set forth in the foregoing Complaint are true and correct to the best of his knowledge, information and belief. Date: Robert A. Romako 900~ dTl gONIS · S(WOltH 9£99 Igg LI£ XVd O0:OI II~I gO/II/IO SHERIFF'S RETURN - OUT OF COUNTY CASE NO: 2002-00208 p COMMONWEALTH OF PENNSYLVANIA: COUNTY OF CUMBERL~2qD 36TH STREET ASSOCIATES VS R M H TELESERVICES INC R. Thomas Kline , Sheriff or Deputy Sheriff who being duly sworn according to law, says, that he made a diligent search and and inquiry for the within named DEFENDANT , to wit: R M H TELESERVICES INC but was unable to locate Them in his bailiwick. deputized the sheriff of MONTGOMERY County, serve the within COMPLAINT & NOTICE He therefore Pennsylvania, to On January 31st , 2002 , this office was in receipt of the attached return from MONTGOMERY Sheriff's Costs: Docketing 18.00 Out of County 9.00 Surcharge 10.00 Dep Montgomery Co 33.00 .00 70.00 01/31/2002 RHOADS & SINON Sheriff of Curaberland County Sworn and subscribed to before me this ~ day of~ ~2~ A.D. Prothonotary' ' In The Court of Common Pleas of Cumberland County, Pennsylvania 36th Street Associates · VS. ~4H Teleservices Inc. SERVE: ~H Teieservices, Inc No. 02 208 civil Now, ,January 18, 2002 , I, SHERIFF OF CUMBERLAND COUNTY, PA, do hereby deputize the Sheriffof MontgcmerY County to execute this Writ, this deputation being made at the request and risk of the Plaintiff. Sheriff of Cumberland County, PA within Affidavit of Service ,20~)02., at f I Of o'clock 7q M. served the by handing to Y~,PI£L~ ~ and made kalown to _. 4 _/~ ./)"(-. copy of the original the Sworn and sub~dri~ ?s ~°I day of X bef6re ...... ~ i kvc, ,20 Sheriffof COSTS SERVICE MILEAGE AFFIDAVIT County, PA R. THOMAS KLINE Sheriff EDWARD L, SCHORPP Solicitor OFFICE OFTHE SHERIFF One Courthouse Square Carlisle, Pennsylvania 17013 RONNY R. ANDERSON Chief Deputy PATRICIA A. SHATTO Real Estate Deputy TO: Montgomery County Sheriff 36th Street ~ss~ist~ VS ~ ~ Telese~ices Inc. 02-208 civS1 ;z: Itl cn Dear Sir: Enclosed please find to be served upon Notice and Complaint ~H Telese~vices, Inc. 40 Morris Avenue Bryn Mawr, PA in your County. Kindly make service thereof and send us your return of se~jc;¢Ty' Enclosed is the advance payment which vc~f~oquested. 'Enclosures: Very trul~s, . R. Thomas Kline, Sheriff Cumberland County, Pennsylvania P I Jack F. Hurley, Jr., Esquire ARomey I.D. No. 24414 Timothy J. Nieman, Esquire Attorney I.D. No. 66024 RI-IOADS & SINON LLP One South Market Square, 12th Floor P.O. Box 1146 Harrisburg, PA 17108-1146 (717) 233-5731 Attorneys for Plaintiff 36th STREET ASSOCIATES, Plaintiff R.M.H. TELESERVICES, INC. Defendant : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA : : CIVIL ACTION LAW : NO. 02-208 Civil Term : : JURY TRIAL DEMANDED PRAECIPE TO SETTLE. DISCONTINUE AND END TO: THEPROTHONOTARY Kindly mark the above-captioned action as settled, discominued and ended. Respectfully submitted, By: RI-tOADS & SINON LLP Timothy J. Nieman One South Market Square P. O. Box 1146 Harrisburg, PA 17108-1146 (717) 233-5731 Attorneys for Plaintiff 419728.1 17ERTWICATE OF SERVICE I hereby certify that on April ~ 2002, a tree and correct copy of the "Pmecipe to Settle Discontinue and End" was served by means of hand delivery upon the following: Mark R. Stewart, Esquire Wolf, Block, Schorr and Solis-Cohen LLP 212 Locust Street Suite 300 Harrisburg, PA 17101