Loading...
HomeMy WebLinkAbout06-6223BARRY E. BRESSLER, ESQ. (Pa. Att'y I.D. No. 09868) MICHAEL J. BARRIE, ESQ. (Pa. Att'y I.D. No 85625) SCHNADER HARRISON SEGAL & LEWIS LLP 1600 Market Street, Suite 3600 Philadelphia, PA 19103 (215) 751-2000 (telephone) (215) 751-2205 (facsimile) Attorneys for ProLogis Six Rivers Limited Partnership PROLOGIS SIX RIVERS LIMITED PARTNERSHIP, a Delaware limited partnership, 4900 Ritter Road, Suite 150 Mechanicsburg, PA 17055 Plaintiff, vii. CONTAINERBRIGHT, INC., a Pennsylvania corporation, 2410 Gettysburg Road Camp Hill, PA 17011 Defendant. COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - Law NO. No - a.Z3 CONFESSION OF JUDGMENT IN EJECTMENT FOR POSSESSION OF REAL PROPERTY Pursuant to the authority contained in the warrant of attorney (a copy of which is attached hereto as Exhibit A and incorporated herein) set forth in the Lease described in the complaint filed in the above-captioned action, I hereby appear for Defendant ContainerBright, Inc., a Pennsylvania corporation, and confess judgment in favor of Plaintiff ProLogis Six Rivers Limited Partnership and against the Defendant in ejectment and for possession of the Leased Premises described in the Complaint, which consists of the premises located at 2410 Gettysburg Road, Camp Hill, Pennsylvania. PHDATA 13924153 Respectfully submigpd David Pelletier, Esquire (Pa. Att'y No. 90899) 1600 Market Street, Suite 3600 Philadelphia PA 19103 (215) 751-2107 Attorney for the Defendant (Pursuant to the Warrant of Attorney Described in the Foregoing Complaint) Dated: October 24, 2006 2 PHDATA 13924153 ?'? ? bLK ? Exhibit A: Attachment to Confession of Judgment in Ejectment for Possession Excerpt from Lease: Warrant of Attorney PHDATA 13924153 27.17 DELIVERY FOR EXAMINATION. DELIVERY OF THE LEASE TO TENANT SHALL NOT BIND LANDLORD IN ANY MANNER, AND NO LEASE OR OBLIGATIONS OF LANDLORD SHALL ARISE UNTIL THIS INSTRUMENT IS SIGNED BY BOTH LANDLORD AND TENANT AND DELIVERY IS MADE TO EACH. SEE RIDER ATTACHED TO AND MADE A PART OF THIS LEASE. IN WITNESS WHEREOF, Landlord and Tenant have each caused their duly authorized representatives to execute this Lease on their behalf as of the date first above written. McBRIDE PROPERTIES By: KEYSTONE PROPERTY TRUST, its general partner By: Name: @1ephun J. oufe Title: %bWrd dent CONTAINERBRIGHT, INC. By: C. 7q'-' RIDER 1. PENNSYLVANIA REMEDIES-CONFESSION OF JUDGMENT. (A) WHEN THIS LEASE OR TENANT'S RIGHT OF POSSESSION SHALL BE TERMINATED BY COVENANT OR CONDITION BROKEN, OR FOR ANY OTHER REASON, EITHER DURING THE TERM OF THIS LEASE, AND ALSO WHEN AND AS SOON AS SUCH TERM SHALL HAVE EXPIRED OR BEEN TERMINATED, TENANT HEREBY IRREVOCABLY AUTHORIZES AND EMPOWERS ANY ATTORNEY OF ANY COURT OF RECORD AS ATTORNEY FOR TENANT AND ANY PERSONS CLAIMING THROUGH OR UNDER TENANT TO CONFESS JUDGMENT IN EJECTMENT AGAINST TENANT AND ALL PERSONS CLAIMING THROUGH OR UNDER TENANT FOR THE RECOVERY BY LANDLORD OF POSSESSION OF THE PREMISES, FOR WHICH THIS LEASE SHALL BE SUFFICIENT WARRANT, WHEREUPON, IF LANDLORD SO DESIRES, A WRIT OF EXECUTION OR OF POSSESSION MAY ISSUE FORTHWITH, WITHOUT ANY PRIOR WRIT OR PROCEEDINGS WHATSOEVER, AND PROVIDED THAT IF FOR ANY REASON AFTER SUCH ACTION SHALL HAVE BEEN COMMENCED THE SAME SHALL BE DETERMINED, CANCELED OR i SUSPENDED AND POSSESSION OF THE PREMISES HEREBY DEMISED REMAIN IN OR BE RESTORED TO TENANT OR ANY PERSON CLAIMING THROUGH OR UNDER TENANT, LANDLORD SHALL HAVE THE RIGHT, UPON ANY SUBSEQUENT DEFAULT OR DEFAULTS, OR UPON ANY SUBSEQUENT TERMINATION OR EXPIRATION OF THIS LEASE OR ANY RENEWAL OR EXTENSION HEREOF, OR OF TENANT'S RIGHT OF POSSESSION, AS HEREINBEFORE SET FORTH, TO CONFESS JUDGMENT IN EJECTMENT AS HEREINBEFORE SET FORTH ONE OR MORE ADDITIONAL TIMES TO RECOVER POSSESSION OF THE SAID PREMISES. (B) IN ANY ACTION OF OR FOR EJECTMENT, IF LANDLORD SHALL FIRST CAUSE TO BE FILED IN SUCH ACTION AN AFFIDAVIT MADE BY IT OR SOMEONE ACTING FOR IT SETTING FORTH THE FACTS NECESSARY TO AUTHORIZE THE ENTRY OF JUDGMENT, SUCH AFFIDAVIT SHALL BE CONCLUSIVE EVIDENCE OF SUCH FACTS; AND IF A TRUE COPY OF THIS LEASE (AND OF THE TRUTH OF THE COPY SUCH AFFIDAVIT SHALL BE SUFFICIENT EVIDENCE) BE FILED IN SUCH ACTION, IT SHALL NOT BE NECESSARY TO FILE THE ORIGINAL AS A WARRANT OF ATTORNEY, ANY RULE OF COURT, CUSTOM OR PRACTICE TO THE CONTRARY NOTWITHSTANDING. TENANT RELEASES TO LANDLORD, AND TO ANY AND ALL ATTORNEYS WHO MAY APPEAR FOR TENANT, ALL PROCEDURAL ERRORS IN ANY PROCEEDINGS TAKEN BY LANDLORD, WHETHER BY VIRTUE OF THE WARRANTS OF ATTORNEY CONTAINED IN THIS LEASE OR NOT, AND ALL LIABILITY THEREFOR. 2. Lender Protections. Tenant agrees to simultaneously give to any party holding a mortgage encumbering the Building, by registered or certified mail, a copy of any notice of default served upon Landlord provided Tenant has been notified in writing of the names and addresses of such mortgagee(s). Tenant further agrees that if Landlord shall have failed to cure such default within the time provided for in this Lease, then the mortgagee(s) shall have an additional thirty (30) days within which to cure such default or if such default cannot be cured within such time, then such additional time as may be necessary if within such thirty (30) days any mortgagee(s) has commenced and is diligently pursuing the remedies necessary to cure such default (including but not limited to commencement of foreclosure proceedings, if necessary to effect such cure), in which event Tenant shall not have the right to pursue any claim against Landlord or such mortgagee, including but not limited to any claim of actual or constructive eviction, so long as such remedies are being diligently pursued. IN WITNESS WHEREOF, Landlord and Tenant have each caused their duly authorized representatives to execute this Rider on their behalf as of the date first above written. McBRIDE PROPERTIES By: Keystone Property T its general partner By: %w hen J. Butte Senior Vice President CONTAINERBRIGHT, INC. By WAIVER OF PRIOR HEAR,I?jG CERTIFICATION The undersigned acknowledges that, subject only to the default notices and cure periods expressly provided for in the above Lease, the above Lease authorizes and empowers Landlord, without the undersigned receiving My prior notice or M ri hearing in any court, to cause the entry of judgments against the undersigned for possession of the leased premises and immediately thereafter, without the undersio receiving any prior notice or go ppigr hearing in any court , to exercise post judgment enforcement and execution remedies to remove the undersigned from the leased premises by law enforcement officers). The undersigned acknowledges that it has agreed to waive its rights to a prior notice and hearing under the Constitution of the United States, the Constitution of the Commonwealth of Pennsylvania and all other applicable state and federal laws, in connection with Landlord's ability to cause the entry of judgments against the undersigned and immediately thereafter exercise Landlord's post judgment enforcement execution remedies The undersigned has discussed the legal impact of this waiver with its independent counsel, and the undersigned acknowledges that it has freely waived such rights. CONTAINERBRIGHT, INC. Name: 5?s C . 7;, Aj ,? Title: Wf-,t-DENT Dated: April k, 2003 EXHIBIT A WORK LETTER Landlord and Tenant agree as follows: 1. Designation of Tenant's Construction Representative. ? ?-?' C7 ? ? ,.5,-.t, ?-, ? rn i ? .it? a ?? ? ,J l"',1 1 _.?:.a f = - ""i3 ? ? !? ? S -"? '?:':e ? 3 r Y Defendant. COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - Law NO. 01, - 2,18 (l . Z-7 COMPLAINT IN CONFESSION OF JUDGMENT IN EJECTMENT ProLogis Six Rivers Limited Partnership (f/k/a Keystone Operating Partnership, BARRY E. BRESSLER, ESQ. (Pa. Att'y I.D. No. 09868) MICHAEL J. BARRIE, ESQ. (Pa. Att'y I.D. No 85625) SCHNADER HARRISON SEGAL & LEWIS LLP 1600 Market Street, Suite 3600 Philadelphia, PA 19103 (215) 751-2000 (telephone) (215) 751-2205 (facsimile) Attorneys for ProLogis Six Rivers Limited Partnership PROLOGIS SIX RIVERS LIMITED PARTNERSHIP, a Delaware limited partnership, 4900 Ritter Road, Suite 150 Mechanicsburg, PA 17055 vi. Plaintiff, CONTAINERBRIGHT, INC., a Pennsylvania corporation, 2410 Gettysburg Road Camp Hill, PA 17011 L.P.), a Delaware limited partnership ("Landlord" or "Plaintiff'), brings this action, pursuant to Pennsylvania Rules of Civil Procedure 2970, et seq., to obtain a judgment by confession in its favor and against ContainerBright, Inc., a Pennsylvania corporation ("Defendant") in ejectment for possession of real property, and avers as follows: PHDATA 13924153 i ? Parties, Jurisdiction and Venue Plaintiff is a limited partnership organized and existing under the laws of the State of Delaware with a place of business at 4900 Ritter Road, Suite 150, Mechanicsburg, Pennsylvania 17055. 2. Defendant is, upon information and belief, a Pennsylvania corporation with its last known address at 2410 Gettysburg Road, Camp Hill, Pennsylvania 17011. Venue properly lies in this Court because (i) the events out of which this action arise occurred in Cumberland County, (ii) Defendant resides in Cumberland County, and (iii) the Leased Premises is in this County. Underlying Transaction 4. On or about April 11, 2003, McBride Properties, a New Jersey general partnership and Landlord's predecessor-in-interest) entered into a written lease agreement (the "Lease") wherein the Defendant, as tenant, leased the commercial real estate located at 2410 Gettysburg Road, Camp Hill, Pennsylvania, and further described in the Lease (the "Leased Premises") for a term of five years commencing on August 13, 2003. A true and complete copy of the Lease is annexed hereto as Exhibit A and incorporated herein by reference. On or about August 4, 2004, McBride Properties assigned to Landlord (f/k/a Keystone Operating Partnership, L.P.) its right, title and interest, as landlord, under the Lease and Landlord assumed all obligations under the Lease. Evidence of assignment is annexed hereto as Exhibit B and incorporated herein by reference. 6. Landlord has fulfilled all of its obligations under the Lease and has otherwise performed all acts necessary to preserve all of its rights under the Lease. 2 PHDATA 13924153 i I n , '\ Averment of Default 7. Among the obligations imposed upon the Defendant under the Lease is the obligation to make certain monthly payments to Landlord, including the following: (a) Paragraphs 1.2 and 5.1 of the Lease require the Defendant to pay Landlord annual base rent in equal monthly installments (plus any applicable late fees under Paragraph 5.2 of the Lease) ("Rent") as follows: Lease Year Annual Rent Monthly Rent Amount 1 $106,848.00 $8,904.00 2 $110,880.00 $9,240.00 3 $114,912.00 $9,576.00 4 $118,944.00 $9,912.00 5 $122,976.00 $10,248.00 (b) Paragraph 6 of the Lease requires the Defendant to pay Landlord additional rent ("Additional Rent"), which includes, but is not limited to, estimated annual operating expenses and real estate taxes. 8. Defendant is in default under the Lease because of, among other things, its failure to pay when due the Rent and Additional Rent for each of the months of June, 2006, July, 2006, August, 2006, September, 2006 and October 2006 in the aggregate amount set forth in paragraph 15 below. 9. As set forth in paragraph 19 of the Lease, the Defendant's failures, in paying its monthly rental obligations under the Lease to Landlord constitutes an "Event of Default" under the Lease and entitles Landlord to exercise various legal remedies available both under the Lease and at law generally. 10. Upon an Event of Default, paragraph 1 of the Rider appended to the Lease provides that any attorney of any court of record may appear on behalf of the Defendant and 3 PHDATA 13924153 confess judgment in ejectment against the Defendant (and all persons claiming through or under the Defendant) for the recovery of possession of the Leased Premises. Averment Concerning Notice 11. By letters (the "Default Letters") dated July 14, 2006 and July 31, 2006, Plaintiff notified the Defendant of its continuing Default under the terms of the Lease and demanded that such default be cured in accordance with the terms of the Lease. True and correct copies of the Default Letters are annexed hereto as Exhibit C. The Lease requires no other notice prior to the commencement of this Action or prior to the entry of judgment herein. Statement Concerning Prior Judgments 12. No prior judgments against Defendant on the Warrant of Attorney contained in the Lease have been entered in any jurisdiction. Averment Regarding Fact That Judgment Is Not For Obligation Under Consumer-Credit Transaction 13. The Lease executed by the Defendant is not a consumer-credit transaction and the judgment being entered herein is not related to a consumer-credit transaction. Statement Concerning Assignments 14. The Lease has not been assigned by the Defendant. As stated above, McBride Properties assigned all of its right, title and interest in and to the Lease to Landlord (f/k/a Keystone Operating Partnership, L.P.) and Landlord assumed the obligations under the Lease, as evidenced by Exhibit B. There has been no further assignment of the Lease by Plaintiff. Itemization of Amounts Due 15. As of October 1, 2006, the following amounts were due and owing but unpaid under the Lease. 4 PHDATA 13924153 Base Rent ....................................................... Operating Expenses ....................................... Late Charges .................................................. Maintenance Fees ........................................... (Less) Security Deposit: TOTAL: ........................................................ $48,888.00 13,425.10 3,874.02 2,906.43 (35,000.00) $34,093.55 16. None of the amounts listed in paragraph 15 above have been paid. Averment of Fact that the Real Property at Issue Herein is Not Residential and that Defendant is Not a Natural Person 17. The Leased Premises is purely commercial and Defendant is not a natural person. DEMAND FOR JUDGMENT 18. By virtue of the above averments and pursuant to the Warrant of Attorney contained in the Lease, Landlord is entitled to immediate entry of a judgment in its favor and against the Defendant for possession of the Leased Premises and the issuance of a writ (or writs) of possession to restore Landlord to actual possession thereof. [SPACE INTENTIONALLY LEFT BLANK] 5 PHDATA 13924153 ? r iA 1 WHEREFORE, Plaintiff ProLogis Six Rivers Limited Partnership demands that judgment be entered in its favor and against the Defendant ContainerBright, Inc., in ejectment, for possession of the Leased Premises. y E. Bressler, Esquire a. Att'y No. 09868) Michael J. Barrie, Esquire (Pa. Att'y No. 85625) 1600 Market Street, Suite 3600 Philadelphia PA 19103 (215) 751-2192 Attorneys for the Plaintiff SCHNADER HARRISON SEGAL & LEWIS LLP 1600 Market Street, Suite 3600 Philadelphia, Pennsylvania 19103 (215) 751-2000 Of Counsel Dated: October 24, 2006 6 PHDATA 13924153 L 3 ?X? e? A 1 INDUSTRIAL LEASE FOR CONTAINERBRIGHT, INC. Premises: 2410 Gettysburg Road Camp Hill, Pennsylvania TABLE OF CONTENTS Article Pa e 1. Reference Data and Definitions 1 2. Demise of Premises 3 3. Possession. 4 4. Term; Renewal Term. 4 5. Base Rent. 5 6. Additional Rent for Operating Expenses and Real Estate Taxes. 7. Security Deposit 9 8. Use; Compliance With Law, 9 9. Alterations and Tenant's Property. 12 10. Repairs and Other Work. 12 6 11. Liens 14 12. Subordination 14 13. Inability to Perform 14 14. Destruction. 14 15. Insurance. 16 16. Eminent Domain. 18 17. Assignment; Subleasing. 18 18. Utilities and Services. 20 19. Default. 21 20. Insolvency or Bankruptcy 23 21. Fees and Expenses; Indemnity, Payment. 22. Access to Premises 24 23. Notices 25 24. No Waiver 25 25. Tenant's Certificates 26 26. Tenant's Taxes26 27. Miscellaneous. 26 RID ER EXHIBITS A - Work Letter B - Scope of Work 24 AGREEMENT OF LEASE AGREEMENT OF LEASE (the "Lease") made as of this I'"day of April, 2003 between MCBRIDE PROPERTIES, a New Jersey general partnership (the "Landlord"), and CONTAINERBRIGHT, INC., a Pennsylvania corporation (the "Tenant"). Landlord and Tenant agree as follows: Reference Data and Definitions. The following sets forth some of the basic lease information and definitions used in this Lease: 1.1 "Additional Rent" shall mean Real Estate Taxes and of Operating Expenses, and all other sums (exclusive of Base Rent) payable by Tenant to Landlord under this Lease. 1.2 "Base Rent" shall mean the Annual Base Rent for each Lease Year set forth below: Lease Year Annual B Rent Monthly Installment of Annual Base Rent 1 $106848.00 $ 8,904.00 2 $1101880.00 $9,240.00 3 $114,912.00 $9,576.00 4 $118,944.00 $ 9,912.00 5 $122,976.00 $10,248.00 1.3 "Broker" shall mean NAI/Commercial Industrial Realty Company. 1.4 "Building" shall mean the building located at 2410 Gettysburg Road, Camp Hill, Pennsylvania. 1.5 "Commencement Date" shall mean the date of this Lease. 1.6 "Concession Costs" shall mean Costs such as construction allowances, rent concessions, moving expenses, takeover obligations and other similar inducements, incurred in leasing, subleasing or assigning a lease or this Lease. 1.7 "Excess Assignment Consideration" shall mean an amount, if any, equal to: (A) the consideration whenever paid by any assignee for the assignment, less (B) Tenant's cost of improvements made or paid for by Tenant to satisfy the needs of the assignee, and legal fees, leasing commissions and Concession Costs, reasonably incurred by Tenant in connection with such assignment. 1.8 "Excess Sublease Rent" shall mean an amount, if any, equal to: (A) (i) all rent or other consideration paid to Tenant by any subtenant, for and during each month less (ii) the portion applicable to such month (when amortized from the date such subtenant commences to pay rent over the remaining term of the sublease, exclusive of any renewals or extensions) of Tenant's costs of improvements made or paid for by Tenant to satisfy the needs of the subtenant, and legal fees, leasing commissions and Concession Costs reasonably incurred by Tenant in connection with such subletting, less (B) (i) the Monthly Installment of Base Rent for such month plus , (ii) such other rent or consideration attributable to such month, which would otherwise be required to be paid by Tenant to Landlord. In determining the amount of Excess Sublease Rent with respect to a sublease for less than all of the Premises, the amount of the Monthly Installment of Base Rent to be deducted pursuant to clause (B)(i) of this Section shall be determined by multiplying the then applicable square foot rate of the Monthly Installment of Base Rent by the area of the portion of the Premises which has been sublet. 1.9 "Guarantor" shall mean Susan C. Tandle. 1.10 "Holidays" shall mean the days observed as holidays by the United States government, or the state government of the State in which the Building is located. 1.11 "Landlord" shall mean the Landlord named on page 1 of this Lease or any subsequent owner of such Landlord's interest in the Property. 1.12 "Landlord's Address": c% Keystone Realty Services, Inc. 200 Four Falls Corporate Center Suite 208 West Conshohocken, Pennsylvania 19428 1.13 "Lease Interest Rate" shall mean the lesser of (A) 400 basis points in excess of the Prime Rate in effect from time to time or (B) the maximum amount or rate that lawfully may be charged in the circumstances, if such a maximum exists. 1.14 "Lease Taxes" shall mean any tax, assessment, levy or other charge (other than any income tax) by any federal, state or local law now or hereafter imposed directly or indirectly upon Landlord with respect to this Lease or the value thereof, or upon Tenant's use or occupancy of the Premises, or upon the Base Rent, Additional Rent or any other sums payable under this Lease or upon this transaction. 1.15 "Operating Expenses" shall have the meaning set forth in Section 6.1.1. 1.16 "Ordinary Business Hours" shall mean Monday through Friday, inclusive, from 7 a.m. to 5 p.m., with Holidays excepted. Notwithstanding the foregoing, Tenant shall have access to the Premises twenty-four (24) hours a day, seven (7) days a week, fifty-two (52) weeks a year. 1.17 "Permitted Use" shall mean only use for washing, warehousing and distributing of polypropylene plastic food containers, together with ancillary office. 1.18 "Premises" shall mean the Property. 1.19 "Prime Rate" shall mean the rate of interest announced from time to time by PNC Bank N.A. or its successor as its prime rate or, if such rate is discontinued, such comparable rate as Landlord reasonably designates by notice to Tenant. 1.20 "Property" shall mean the Building together with the parcel of land and all appurtenances thereto on which the Building is located. 1.21 "Real Estate Taxes" shall mean all real estate taxes and assessments, general or special, ordinary or extraordinary, foreseen or unforeseen (other than Lease Taxes) assessed or imposed upon the Property. If, due to a future change in the method of taxation, any franchise, income, profit or other tax, however designated, shall be levied or imposed in substitution, in whole or in part, for (or in lieu of) any tax or addition to or increase in any tax which would otherwise be included within the definition of Real Estate Taxes, then such other tax shall be deemed to be included within Real Estate Taxes. 1.22 "Rent" shall mean Additional Rent and Base Rent, collectively. 1.23 "Rentable Area of the Premises" shall mean 33,600 square feet. 1.24 "Tenant" shall mean the Tenant named on page 1 of this Lease and such person's permitted successors and assigns, subject to the provisions of this Lease. 1.25 "Tenant's Address" shall mean, at the Premises. 1.26 "Term" shall mean the period commencing on the Commencement Date and terminating on July 31, 2008, subject to extension as provided in this Lease. Demise of Premises. Subject to the terms of this Lease, Landlord leases to Tenant and Tenant leases from Landlord the Premises. Landlord warrants to Tenant that the Premises may be lawfully used for the Permitted Use under the applicable zoning code in effect on the date of this Lease 3. Possession. 3.1 Improvements to Premises. The Premises will be improved by Landlord as provided in Exhibit A to this Lease (the "Work Letter"). The scope of the work to be performed by Landlord is set forth on Exhibit B to this Lease (the "Scope of Work'). The Work Letter and Scope of Work set forth the obligations and responsibilities of Tenant and Landlord for the design and construction of Landlord's Work (as such term is defined in the Work Letter). Except for the improvements to the Premises contemplated by the Landlord's Work, Tenant agrees to accept the Premises and the Property in their "as is" condition. Subject to Tenant Delay (as such term is defined in the Work Letter), Landlord shall cause the Landlord's Work to be Substantially Complete on or before June 1, 2003. If for any reason Landlord cannot achieve Substantial Completion of Landlord's Work by June 1, 2003, then the validity of this Lease and the obligations of Tenant under this Lease shall not be affected, and Tenant shall have no claim against Landlord in connection therewith; provided, that the Rent Commencement Date shall be extended by one (1) day for each day it takes after June 1, 2003 to achieve Substantial Completion of Landlord's Work; provided, further, that the Rent Commencement Date shall not be extended on account of any delay in the achievement of Substantial Completion of Landlord's Work which is attributable to Tenant Delay (as such term is defined in the Work Letter). 3.2 Delivery of Possession. Landlord shall deliver possession of the Premises to Tenant upon Substantial Completion of Landlord's Work. Following such delivery, Landlord and Tenant will cooperate with each other in coordinating and completing Landlord's Work and any Alterations to be performed by Tenant. 3.3 Permits. Landlord shall obtain such occupancy permits and other licenses as may be required to be obtained to permit the use and occupancy of the Premises for the Permitted Use. Tenant will assist Landlord in obtaining such occupancy permits. 4. Term: Renewal Term. 4.1 Commencement Date. The Term of this Lease shall commence on the Commencement Date. 4.2 Rent Commencement ate. Tenant's obligation to pay Rent shall commence on August 1, 2003 (the "Rent Commencement Date"). However, if Tenant takes possession of all or any part of the Premises prior to the Rent Commencement Date, Tenant shall pay for the cost of all utilities and services provided to Tenant or the Premises during the period of Tenant's possession prior to the Rent Commencement Date. 4.3 Lease Year. The "First Lease Year" shall be the period commencing on the Commencement Date and continuing through July 31, 2004. Each "Lease Year" after the First Lease Year shall be a consecutive twelve (12) month period commencing on the first day of the calendar month immediately following the preceding Lease Year. 4.4 Renewal Term. Provided that at the time of exercise of the option provided for in this Section 4.4 this Lease is in full force and effect, Tenant is not in default hereunder and Tenant is in full occupancy of the Premises, Tenant shall have the right by giving Notice to Landlord not less than six (6) months prior to the expiration date of the Term to extend the Term for two (2) periods of one (1) year each (each, a "Renewal Tenn") with such Renewal Term beginning on the day immediately following the expiration date of the Term, on all of the same terms and conditions applicable to the initial Term, except that the Base Rent during the Renewal Term will be determined as provided in Section 4.5. 4.5 Base Rent During Renewal Term. Base Rent during each Renewal Term shall equal the lesser of (a) 98% of the "Fair Market Rent" for the Premises, or (b) an amount equal to 103% of the Base Rent payable during the immediately preceding Lease Year. Fair Market Rent means a new Base Rent determined for occupancy commencing as of the first day of the Renewal Term as determined by Landlord and designated by notice from Landlord to Tenant given not earlier than four (4) months prior to the first day of the Renewal Term, taking into consideration the rental rates then being quoted for comparable warehouse buildings in the area of the Property. Landlord's determination of Fair Market Rent shall be final and binding unless Tenant shall submit such determination to the American Arbitration Association within 15 days after Tenant's receipt thereof. In the event of such submission, the Fair Market Rent shall be determined within 60 days thereof in Philadelphia by a panel of three arbitrators under the Commercial Arbitration Rules of the American Arbitration Association, whose determination shall be based upon the same factors to have been taken into consideration by Landlord. The award rendered by the arbitrators shall be final, conclusive and binding. 4.6 Early Termination. Tenant shall have the option, exercisable by written notice delivered to Landlord no later than October 31, 2005 accompanied by payment to Landlord of the sum of $32,791.35, to accelerate the expiration of the Term of this Lease to July 31, 2006. Upon the valid exercise of such option by Tenant, the Term shall automatically expire on July 31, 2006 without the necessity of any additional notice from either party to the other. 5. Base Rent. 5.1 Payment. Base Rent shall be payable by Tenant in equal monthly installments as set forth in Section 1.2 on or before the first day of each calendar month, in advance. If the Commencement Date or the expiration date of the Term should occur on a day other than the last day of a calendar month, then the Base Rent for such fractional month shall be prorated upon a daily basis. All payments of Base Rent and Additional Rent shall be made without prior demand and without offset, deduction or counterclaim of any kind, in lawful money of the United States of America. Such payments shall be made at Landlord's Address or at such other place as Landlord shall designate from time to time. 5.2 Late Charees. If Tenant fails to pay any Base Rent or Additional Rent within five (5) days after the same is due and payable, such unpaid amounts will be subject to a late payment charge equal to five percent (5%) of the unpaid amounts in each instance. Such late payment charge has been agreed upon by Landlord and Tenant, after negotiation, as a reasonable estimate of the additional administrative costs and detriment that will be incurred by Landlord as a result of any such failure by Tenant, the actual costs thereof being extremely difficult if not impossible to determine. The late payment charge constitutes fair and reasonable compensation to Landlord for its damages resulting from such failure by Tenant to timely pay and shall be paid to Landlord together with such unpaid amounts. 6. Additional Rent for Operating Expenses and Real Estate Taxes. 6.1 Definitions. For purposes of this Lease, the following terms shall have the following meanings: 6.1.1 "Operating Expenses" shall mean the costs and expenses paid or incurred by Landlord in connection with the management, operation, maintenance and repair of the Property, including, without limitation: (i) the cost of fire, extended coverage, boiler, sprinkler, apparatus, public liability, property damage, rent, earthquake and other insurance as Landlord carries, including the amounts of any deductible payment for such insurance incurred by Landlord in connection with any claim thereunder; (ii) reasonable fees, charges and other costs, including, without limitation, property management fees, consulting fees, attorneys' fees and accounting fees of all contractors engaged by Landlord in connection with the Property, and all such fees, charges or other costs charged by Landlord if Landlord performs management services in connection with the Property; monitoring; (iii) the cost of snow and ice removal and of alarm (iv) landscaping; (v) reasonable fees, costs and disbursements incurred in connection with proceedings to contest, determine, or reduce Operating Expenses or Real Estate Taxes. "Operating Expenses" shall not include: (i) leasing commissions, accountants' or attorneys' fees, costs and disbursements and other expenses incurred in connection with proposals, negotiations, or disputes with tenants or other occupants or prospective tenants or other occupants, or associated with the enforcement of any leases or the defense of Landlord's title to or interest in the Building or any part thereof, (ii) costs incurred in renovating or otherwise improving or decorating, painting or redecorating space for tenants or other occupants or any vacant space in the Building; (iii) except as specifically provided in this Lease with regard to amortization of capital improvement costs, interest on debt or amortization payments on any mortgages or deeds of trust or any other borrowings of Landlord; (iv) salaries, benefits or other compensation paid to leasing agents, promotional directors, officers, directors and executives of Landlord above the rank of Building managers, or not involved in the day-to-day operations or management of the Building (except for out-of-pocket expenses of such persons related to the Building or the Property); (v) all contributions to any organizations, whether political or charitable, except for dues and similar expenses for BONIA, building management associations and similar organizations; (vi) interest or penalties for late payments; costs reimbursed by insurance unless disputed by third parties; (vii) ground lease rental; (viii) costs or expenses paid directly by Tenant in connection with the operation, maintenance or repair of the Property. 6.2 Payment of Real Estate Taxes. Commencing on the Commencement Date, Tenant shall pay to Landlord as Additional Rent one twelfth (1/12th) of Real Estate Taxes for each calendar year on or before the first day of each month during such calendar year, in advance, in an amount reasonably estimated by Landlord in good faith and billed by Landlord to Tenant. Landlord shall have the right to revise such estimate from time to time. Within one hundred twenty (120) days after the expiration of each calendar year, Landlord shall furnish Tenant with a statement ("Landlord's Tax Statement") setting forth the actual amount of Real Estate Taxes for such calendar year. If the actual amount of Real Estate Taxes due for such calendar year differs from the estimated amount of Real Estate Taxes paid by Tenant for such calendar year, then, if Tenant owes any amounts to Landlord, such amounts shall be paid by Tenant (whether or not this Lease has terminated) within thirty (30) days after receipt of Landlord's Tax Statement, and if Landlord owes any amounts to Tenant, such amounts shall be credited against the next installments of Base Rent and Additional Rent due from Tenant (or if the Lease has terminated for any reason other than Tenant's default, paid to Tenant within thirty (30) days after delivery of Landlord's Tax Statement). 6.3 Payment of Operating Expenses. Commencing on the Commencement Date, Tenant shall pay to Landlord as Additional Rent one twelfth (1/12th) of Operating Expenses for each calendar year on or before the first day of each month during such calendar year, in advance, in an amount reasonably estimated by Landlord in good faith and billed by Landlord to Tenant. Landlord shall have the right to revise such estimate from time to time. Within one hundred twenty (120) days after the expiration of each calendar year, Landlord shall furnish Tenant with a statement ("Landlord's Operating Expense Statement"), setting forth the actual amount of Operating Expenses for such calendar year. If the actual amount of Operating Expenses due for such calendar year differs from the estimated amount of Operating Expenses paid by Tenant for such calendar year, then, if Tenant owes any amounts to Landlord, such amounts shall be paid by Tenant (whether or not this Lease has terminated) within thirty (30) days after receipt of Landlord's Operating Expense Statement, and if Landlord owes any amounts to Tenant, such amounts shall be credited against the next installments of Base Rent and Additional Rent due from Tenant (or if the Lease has terminated for any reason other than Tenant's default, paid to Tenant within thirty (30) days after delivery of Landlord's Operating Expense Statement). 6.4 Objections to Statements. Tenant acknowledges that Landlord's ability to budget and incur expenses depends on the finality of Landlord's Tax Statements and Landlord's Operating Expense Statements, and Tenant shall have sixty 'e (60) days following receipt of any such Statement within which to raise any objection to the calculations contained in any such Statement. Failure of Tenant to object within such sixty (60) day period shall be deemed a waiver of any such objection. Tenant shall continue to make all payments required under this Lease pending resolution of any such objection. If Tenant makes a timely objection, Landlord and Tenant shall use reasonable efforts and due diligence in attempting to resolve such dispute within a reasonable, time. No delay by Landlord in providing any Statement shall be deemed a default by Landlord or a waiver of Landlord's right to require payment of Tenant's obligations for actual or estimated Real Estate Taxes or Operating Expenses. 6.5 Limitations. 6.5.1 Notwithstanding anything contained in this Article 6, Tenant shall not be obligated to reimburse Landlord for Real Estate Taxes and the Specified Operating Expenses (defined below) incurred by Landlord on account of the period ending July 31, 2004 in an amount which exceeds $21,504. "Specified Operating Expenses" means the following Operating Expenses only: insurance, landscaping and lawn maintenance, snow removal, alarm monitoring and management fee. 6.5.2 In no event will the amount of Operating Expenses which Tenant is obligated to pay during any Lease Year after the First Lease Year on account of Controllable Operating Expenses (defined below) exceed 105% of the amount of Operating Expenses payable by Tenant on account of Controllable Operating Expenses during the immediately preceding Lease Year. "Controllable Operating Expenses" means the following Operating Expenses only: insurance, landscaping and lawn maintenance, alarm monitoring and management fee. In no event will the limitation contained in this Section 6.5.2 apply to Real Estate Taxes or any Operating Expenses other than Controllable Operating Expenses. Security Deposit. Concurrently with the execution of this Lease, Tenant shall deliver to Landlord the sum of $35,000.00 to be held as security for the faithful performance by Tenant of its obligations under this Lease (the "Security Deposit"). Except as may otherwise be required by applicable law, (a) Tenant shall not be entitled to any interest on the Security Deposit, (b) Landlord shall not be obligated to hold the Security Deposit in trust or in a separate account, and (c) Landlord shall have the right to commingle such Security Deposit with its other funds. If Tenant defaults under this Lease, without limiting any right or remedy of Landlord, Landlord may also apply the whole or any part of the Security Deposit-to the extent required for the payment of any rent or other sums payable under this Lease as to which Tenant is in default or on account of any sum which Landlord may expend or may be required to expend by reason of Tenant's default. If any portion of the Security Deposit is applied by Landlord for any such purpose, Tenant shall, within ten (10) days after demand is made by Landlord, deposit cash with Landlord in an amount sufficient to restore the Security Deposit to its original amount. If Tenant shall fully and faithfully comply with all of the covenants and conditions of this Lease, the Security Deposit shall be returned to Tenant after the expiration date of the term of this Lease and the surrender of the Premises to Landlord. In no event shall the Security Deposit be applied to the last monthly installment of rent or additional rent due prior to the expiration date of the terns of this Lease. In the event of a sale of the Premises, Landlord shall have the right to transfer to the purchaser the Security Deposit, whereupon Landlord shall be released by Tenant from all liability for the return of the Security Deposit and Tenant shall look solely to the new landlord for its return. 8. Use; Compliance With Law. 8.1 Permitted Use. The Premises shall be used only for the Permitted Use and for no other purpose. All polypropylene-plastic containers will be stored on pallets which will be shrink-wrapped and stacked no higher than fifteen (15) feet above the warehouse floor. 8.2 No Nuisance. Tenant shall not allow, suffer or permit the Premises or any use thereof to constitute a nuisance or unreasonably interfere with the safety, comfort or enjoyment of the Building by Landlord or any other occupants of the Building or their customers, invitees or any others lawfully in, upon or about the Building or its environs. 8.3 Compliance with Laws. Tenant, at Tenant's expense, shall comply with and cause all of Tenant's contractors, agents, servants, employees and licensees to comply with all applicable laws, ordinances, rules and regulations of governmental ' authorities applicable to the Premises or the use or occupancy thereof. Notwithstanding the foregoing, Landlord, at Landlord's expense, shall cause the Premises to comply with the requirements of the Americans with Disabilities Act (and all regulations promulgated thereunder). 8.4 Hazardous Materials. 8.4.1 Hazardous Substances. "Hazardous Substance" shall mean any hazardous or toxic substance, material or waste which is or becomes regulated by any local, state or federal governmental authority having jurisdiction. The term "Hazardous Substance" includes, without limitation, any material or substance which is (i) designated as a "hazardous substance" pursuant to Section 311 of the Federal Water Pollution Control Act (33 U.S.C. Section 1317), (ii) defined as a "hazardous waste" pursuant to Section 1004 of the Resource Conservation and Recovery Act, 42 U.S.C. Section 6901 et seq. (42 U.S.C. Section 6903), (iii) defined as a "hazardous substance" pursuant to Section 101 of the Comprehensive Environmental Response, Compensation and Liability Act, 42 U.S.C. Section 9601 et seq. (42 U.S.C. Section 9601), (iv) petroleum or (v) asbestos or asbestos-containing materials. 8.4.2 Complian with Law. Tenant shall conduct, and cause to be conducted, all operations and activity at the Premises in compliance with, and shall in all other respects applicable to the Premises comply with, all applicable present and future federal, state, municipal and other governmental statutes, ordinances, regulations, orders, directives and other requirements, and all present and future requirements of common law, concerning the protection of public health, safety or the environment (collectively "Environmental Statutes"). 8.4.3 Permits. Tenant, in a timely manner, shall obtain and maintain in full force and effect all permits, licenses and approvals, and shall make and file all notifications and registrations as required by Environmental Statutes. Tenant shall at all times comply with the terms and conditions of any such permits, licenses, approvals, notifications and registrations. 8.4.4 Documents. Tenant shall provide to Landlord copies of the following, promptly after each shall have been submitted, prepared or received by Tenant: (A) all applications and associated materials submitted to any governmental agency relating to any Environmental Statute; (B) all notifications, registrations, reports and other documents, and supporting information, prepared, submitted or maintained in connection with any Environmental Statute or otherwise relating to environmental conditions; (C) all permits, licenses, approvals, and amendments or modifications thereof, obtained under any Environmental Statute; and (D) any correspondence, notice of violation, summons, order, complaint, or other document received by Tenant pertaining to compliance with or liability under any Environmental Statute. Landlord has provided to Tenant a copy of a phase I environmental assessment report covering the Property dated October 4, 1998 prepared by EMG. 8.4.5 erations. Tenant shall not cause or suffer or permit to occur in, on or under the Premises any generation, use, manufacturing, refining, transportation, emission, release, treatment, storage, disposal, presence or handling of Hazardous Substances, except that limited quantities of Hazardous Substances may be used, generated, handled or stored on the Premises, provided such is incident to and reasonably necessary for the maintenance of the Premises and Tenant's operations for the Permitted Use and is in compliance with all Environmental Statutes and all other applicable governmental requirements. Should a release of any Hazardous Substance occur at the Premises, Tenant shall immediately contain, remove and dispose of, off the Premises, such Hazardous Substances and any material that was contaminated by the release, and remedy and mitigate all threats to human health or the environment relating to such release. When conducting any such measures the Tenant shall comply with all Environmental Statutes. 8.4.6 Activities of Others. Tenant agrees that any contracts or agreements of any land entered into or renewed by Tenant, for the occupancy of or the performance of activities on the Premises will contain the same limitations on the activities of such other contracting party as are placed on Tenant by this Section 8.4. 8.4.7 jag2d'on. Following not less than twenty-four (24) hours' prior written notice, Tenant agrees to permit Landlord and its authorized representatives to enter, inspect and assess the Premises at reasonable times for the purpose of determining Tenant's compliance with the provisions of this Section. Such inspections and assessments may include obtaining samples and performing tests of soil, surface water, groundwater or other media. 8.4.8 Tanks. Tenant, without the prior written consent of Landlord, shall not install or cause the installation of any above ground or underground storage tank at the Premises. If Tenant does install or cause the installation of any such tank, the provisions of this Section shall apply thereto, and Tenant shall comply with all applicable laws as to its installation, operation, maintenance, testing, repair, replacement and removal, including any requirement for insurance. If such insurance is required, Landlord shall be named as an additional insured thereunder. Notwithstanding any other provision in the Lease to the contrary, upon the earlier of the termination of the Lease or the expiration of the Lease term, each underground tank shall be surrendered to Landlord or removed, as required by Landlord in its sole discretion. The removal of any tank shall include, without limitation: (A) the removal of any associated contaminated material, including without limitation soil and groundwater, (B) the performance of all tests required by Landlord and any required by applicable law, and (C) the restoration of the area to the same condition as existed prior to the installation of the underground tank. Tenant shall provide promptly to Landlord and government agencies, if required, copies of all reports, including without limitation the results of all tests, regarding the installation, operation, maintenance, testing, repair, replacement and removal of the underground tanks. Notwithstanding anything in the Lease to the contrary, Tenant owns the underground tanks unless and until any underground tank is surrendered to Landlord as provided above. 8.4.9 Indemnification. Notwithstanding any other provision in the Lease to the contrary, Tenant hereby agrees to indemnify and to hold harmless Landlord and its officers, directors, shareholders, partners and principals of, from and against any and all expense, loss, cost, claim, damage, penalty, fine, or liability of any kind or nature suffered by Landlord by reason of the presence or release of Hazardous Substances at or from the Premises which are introduced to the Premises after the Commencement Date or Tenant's breach of any of the provisions of this Section, including without limitation: (A) any and all expenses that Landlord may incur in complying with any Environmental Statutes, (B) any and all costs that Landlord may incur in studying, assessing, containing, removing, remedying, mitigating, or otherwise responding to, the presence or release of any such Hazardous Substance at or from the Premises, (C) any and all costs for which Landlord may be liable to any governmental agency for studying, assessing, containing, removing, remedying, mitigating, or otherwise responding to, the presence or release of any such Hazardous Substance at or from the Premises, (D) any and all fines or penalties assessed, or threatened to be assessed, upon Landlord by reason of a failure of Tenant to comply with any obligations, covenants or conditions set forth in this Section, and (E) any and all legal fees and costs incurred by Landlord in connection with any of the foregoing. Tenant's obligations under this Section shall survive the expiration or earlier termination of the Term of this Lease. 9. Alterations and Tenant's Property. 9.1 Alterations Defined. Tenant shall not make or suffer or allow to be made any alterations, additions or improvements in or to the Premises (collectively, "Alterations") without first obtaining Landlord's written consent based on detailed plans and specifications submitted by Tenant; provided Landlord's consent will not be required if the proposed Alterations will not affect the structure or the mechanical, electrical, HVAC, plumbing or life safety systems of the Building and the total cost to acquire and install the proposed Alterations will be no more than $5,000. In all instances where Landlord's consent is so required, it may be granted or withheld by Landlord in its sole discretion. 9.2 Removal of Property. All Alterations shall become the property of Landlord and shall be surrendered to Landlord upon the expiration or earlier termination of this Lease; provided, however, that this provision shall not apply to movable equipment, trade fixtures, personal property or furniture which are owned by Tenant ("Tenant Owned Property"). At Landlord's sole election, to be made at the time Landlord's consent thereto is provided, any or all Alterations made by or on behalf of Tenant shall be removed from the Premises at Tenant's sole cost and expense at the expiration or sooner termination of this Lease, and the Premises shall be restored, at Tenant's sole cost and expense, to their condition before the making of such Alterations, ordinary wear and tear excepted. Nothing contained in this Section 9.2 shall require Tenant to remove any of Landlord's Work from the Premises. Tenant shall repair at its sole cost and expense all damage caused to the Premises or the Building by removal of any Alterations or Tenant Owned Property. Any Tenant Owned Property not removed from the Premises at the expiration or earlier termination of this Lease shall, at Landlord's option, become the property of Landlord, or Landlord may remove them and Tenant shall pay to Landlord the reasonable cost of removal. Tenant's obligations under this Section shall survive the expiration or earlier termination of the Term of this Lease. 10. Repairs and Other Work. 10.1 Tenant's Obligations. Subject only to the provisions of Section 10.2 and 10.3, at Tenant's sole cost and expense, Tenant shall maintain the Building in good, clean and sanitary condition and shall make all repairs as and when necessary to preserve the Building in good working order and condition. Without limiting the foregoing, Tenant shall make all repairs necessary to the heating, ventilation and air conditioning systems servicing the Building ("HVAC Systems'), and shall cause all trash and refuse generated at the Building to be removed. 10.2 Conditions Applicable to Repairs and Other Work. All repairs, replacements, and reconstruction (including, without limitation, all Alterations) made by or on behalf of Tenant shall be made and performed (a) at Tenant's cost and expense and at such time and in such manner as Landlord may reasonably designate, (b) by contractors or mechanics reasonably approved by Landlord, (c) at least equal in quality of materials and workmanship to the original work or installation, (d) in accordance with such reasonable requirements as Landlord may impose with respect to insurance to be obtained by Tenant in connection with the proposed work, (e) in accordance with the rules and regulations for the Property adopted by Landlord from time to time, if any, (f) in accordance with all applicable laws and regulations of governmental authorities having jurisdiction over the Premises, and (g) in compliance with such other requirements as Landlord may reasonably impose (including without limitation a requirement that Tenant furnish Landlord with as-built drawings upon completion of the work). Notwithstanding anything contained in this Article 10, all reasonable costs of performing Tenant's obligations under Section 10.1 to make repairs as and when necessary to preserve the Building in good working order and condition during the First Lease Year in excess of $2,750.00 (the "First Lease Year Cap") shall be paid by Landlord. Prior to incurring any such expenditure which will cause the First Lease Year Cap to be exceeded, Tenant shall notify Landlord and Landlord shall, at Landlord's cost, perform the necessary maintenance work. The First Lease Year Cap shall not apply to costs incurred by Tenant to perform its other obligations under Section 10. 1, including without limitation its obligation to remove all trash and refuse generated at the Building. 10.3 Landlord's Obligations. Landlord shall be responsible, at Landlord's sole cost and expense, for repair, maintenance and replacement of (a) all structural elements, roof, floor and exterior walls of the Building, (b) parking areas located upon the Land and (c) during the initial Term only, all office-related system, installed by Landlord as part of Landlord's Work, provided, to the extent any of the facilities described in clauses (a), (b) or (c) is part of any Alterations or any such repair, maintenance or replacement is required as a result of the negligence or misconduct of Tenant, Tenant's contractors, employees or invitees, Tenant shall reimburse Landlord for such costs within thirty (30) days after receipt of Landlord's invoice. Tenant shall promptly notify Landlord of the need for performance of any repair work required to be performed by Landlord pursuant to the preceding sentence. Landlord's repair and maintenance obligations shall be carried out in a manner consistent with other comparable facilities in the area in which the Building is located. Landlord shall also cause snow and ice to be removed from the sidewalks and parking areas servicing the Building, and shall maintain lawns and shrubbery existing at the Property to be maintained, in each case in a manner consistent with comparable facilities in the area where the Building is located. Landlord shall not be liable for, and there shall be no abatement of Rent with respect to, any injury to or interference with Tenant's business arising from any repairs, maintenance, alteration or improvement in or to any portion of the. Property, including, without limitation, the Premises, or in or to the fixtures, appurtenances and equipment therein. , Liens. Tenant shall keep the Premises and the Property free from any liens arising out of any work performed or material furnished to or for the Premises by or for Tenant. If Tenant shall not, within thirty (30) days following notice of the imposition of any such lien, cause same to be released of record by payment or posting of a bond satisfactory to Landlord, Landlord, in addition to all other remedies provided under this Lease and by law, shall have the right (but not the obligation) to cause the lien to be released by such means as Landlord shall deem proper, including, without limitation, payment of the claim giving rise to such lien. All such sums reasonably paid by Landlord and all expenses incurred by it in connection therewith shall be considered additional rent and shall be payable by Tenant within ten (10) days after receipt of written demand. Subordination. Tenant agrees that this Lease shall be subject and subordinate at all times to (a) all ground leases or underlying leases that may now exist or hereafter be executed affecting the Property or any portion thereof, (b) the lien of any mortgage, deed of trust or other security instrument that may now exist or hereafter be executed in any amount for which the Property or any portion thereof, any ground leases or underlying leases, or Landlord's interest or estate therein is specified as security, and (c) all modifications, renewals, supplements, consolidations and replacements thereof If any ground lease or underlying lease terminates for any reason or any mortgage, deed of trust or other security instrument is foreclosed or a conveyance in lieu of foreclosure is made for any reason, Tenant, notwithstanding any subordination, shall attom to and become the tenant of the successor in interest to Landlord at the option of such successor in interest. The provisions of this Section shall be self operative and no further instrument shall be required to effect the provisions of this Section. Tenant covenants and agrees to execute and deliver, within ten (10) days after demand by Landlord and in the form requested by Landlord, any additional documents evidencing the priority or subordination of this Lease with respect to any such ground leases, underlying leases, mortgages, deeds of trust, or other security instruments. Inability to Perform. If, by reason of acts of God, governmental restrictions, strikes, labor disturbances, shortages of materials or supplies or any other cause or event beyond Landlord's reasonable control (collectively, "Force Majeure Events"), Landlord is unable to furnish or is delayed in furnishing any utility or service required to be furnished by Landlord under the provisions of this Lease, or is unable to perform or make or is delayed in performing or making any installations, decorations, repairs, alterations, additions or improvements required to be performed or made under this Lease, no such inability or delay shall impose any liability upon Landlord or its agents or provide Tenant with any right to offset, deduction or abatement of rent by reason of inconvenience or annoyance to Tenant or by reason of injury to or interruption of Tenant's business, or otherwise. 14. Destruction. 14.1 Repair. Subject to the provisions of Sections 14.3 and 14.4 below, if any portion of the Building is damaged by fire, earthquake, flood or other casualty (the "Damaged Property") to the extent that such damage renders a portion of the Premises untenantable by Tenant and the damage may, in Landlord's reasonable opinion, be repaired within nine (9) months after the date of damage (under a normal construction schedule not requiring the payment of overtime or premium), Landlord shall proceed immediately to make such repairs in accordance with Section 14.4. Landlord's opinion shall be delivered to Tenant within thirty (30) days after the date of the event causing such damage. Landlord shall consider and include as part of its evaluation, the period of time necessary to obtain the required approvals of any secured lender and insurer and governmental entities, to order and obtain materials, and to engage contractors. 14.2 Tenant's Right to Terminate. If such damage causes all or any material portion of the Premises to be untenantable by Tenant and, in Landlord's reasonable opinion, such damage cannot be repaired within nine (9) months after the date of the event causing such damage (under a normal construction schedule not requiring the payment of overtime or premium) or, if commenced, such repairs are not completed within nine (9) months after the date of the event causing such damage, Tenant may terminate this Lease by delivery of written notice to Landlord within, as applicable, (i) thirty (30) days after the date on which Landlord's opinion is delivered to Tenant or (ii) nine (9) months after the date of the event causing such damage if by such date the repairs are not substantially completed. Upon termination, Rent shall be apportioned as of the date of the damage and, provided Tenant is not in default, all prepaid Rent shall be repaid to Tenant. 14.3 Landlord's Righht to Terminate. If (i) the uninsured portion of any damage to or destruction of the Property equals or exceeds ten percent (10%) of the replacement cost of the Building; or (ii) the Term will expire within one (1) year from the date of any material damage to or destruction of the Premises and Tenant fails to extend the term in accordance with any right expressly granted in this Lease within thirty (30) days after the date of the event causing such damage; or (iii) if the Premises or any other portion of the Property is damaged by fire, earthquake, flood or other casualty and such damage cannot, in Landlord's reasonable opinion, be repaired within nine (9) months after the date of the event causing such damage (under a normal construction schedule not requiring the payment of overtime or premium); or (iv) if any lender holding a mortgage or deed of trust encumbering the Building requires that insurance proceeds be applied toward the repayment of debt; or (v) if any material, uninsured loss shall occur, Landlord may terminate this Lease by delivery of written notice to Tenant within forty-five (45) days after the date of the event causing such damage. Upon termination, Rent shall be apportioned as of the date of the damage and, provided Tenant is not in default, all prepaid Rent shall be repaid to Tenant. 14.4 Extent of Repair Obligations. If this Lease is not terminated, Landlord's repair obligation shall extend to the structure of the Building and all improvements (except those constructed or installed by Tenant, if any) in the Premises at the date possession of the Premises was delivered to Tenant, and Tenant shall repair all other portions of the Premises (including, without limitation, Alterations and Tenant Owned Property). All such repairs shall be performed in a good and workmanlike manner, with due diligence, and shall restore the items repaired to substantially the same usefulness and construction as existed immediately before the damage. All work by Tenant shall be performed in accordance with the requirements of Section 10.2 above. Notwithstanding anything to the contrary in this Lease, Landlord shall not be obligated to expend on such repairs more than the amount of insurance proceeds actually received by Landlord on account of the damage; provided, however, that Landlord shall complete all such repairs if Tenant pays to Landlord in advance the difference between the cost of such repairs and the amount of insurance proceeds received by Landlord on account of the damage. In the event of any termination of this Lease, the proceeds from any insurance paid by reason of damage to or destruction of the Property or any portion thereof, or any other element, component or property insured by Landlord, shall belong to and be paid to Landlord. 14.5 Adjustment of Rent. If a casualty renders all or part of the Premises untenantable, Rent shall proportionately abate commencing on the date of the casualty and ending when the Premises are delivered to Tenant with Landlord's restoration obligation substantially complete. The extent of the abatement shall be based upon the portion of the Premises rendered untenantable, inaccessible or unfit for use in a reasonable business manner for the purposes stated in this Lease. 14.6 Mutual Waiver of Subro ag_tion. Notwithstanding anything to the contrary in this Lease, Landlord and Tenant mutually waive their respective rights of recovery against each other and each other's officers, directors, constituent partners, agents and employees, and Tenant waives such rights against each lessor under any ground or underlying lease and each lender under any mortgage or deed of trust or other lien encumbering the Property or any portion thereof or interest therein, to the extent any loss is or would be covered by fire, extended coverage, and other property insurance policies required to be carried under this Lease or otherwise carried by the waiving party, and the rights of the insurance carriers of such policy or policies to be subrogated to the rights of the insured under the applicable policy. Each party shall cause its insurance policy to be endorsed. to evidence compliance with such waiver. 15. Insurance. 15.1 Insurance on Tenant's Proper . Tenant shall procure at its cost and expense and keep in effect during the Term insurance coverage for all risks of physical loss or damage insuring the full replacement value of Alterations, Tenant's trade fixtures, furnishings, equipment, plate glass, signs and all other items of personal property of Tenant. 15.2 Tenant's Liability Insurance. Tenant shall procure at its cost and expense and maintain throughout the Term comprehensive commercial general liability insurance applicable to the Premises with a minimum combined single limit of liability of Two Million Dollars ($2,000,000), statutory worker's compensation insurance, and employer's liability insurance with a Five Hundred Thousand Dollar ($500,000) minimum limit covering all of Tenant's employees. Such liability insurance shall include, without limitation, products and completed operations liability insurance, fire and legal liability insurance, contractual liability insurance applicable to all of Tenant's indemnity obligations under this Lease, and such other coverage as Landlord may reasonably require from time to time. 15.3 Form of Policies. Tenant's insurance shall be issued by companies authorized to do business in the State in which the Building is located. Tenant shall have the right to provide insurance coverage pursuant to blanket policies obtained by Tenant if the blanket policies expressly afford coverage required by this Article 15. All insurance policies required to be carried by Tenant under this Lease (except for worker's compensation insurance) shall (i) name Landlord, and any other parties designated by Landlord as additional insureds, (ii) as to liability coverages, be written on an "occurrence" basis, (iii) provide that Landlord shall receive thirty (30) days' notice from the insurer before any cancellation or change in coverage, and (iv) contain a provision that no act or omission of Tenant shall affect or limit the obligation of the insurer to pay the amount of any loss sustained. Each such policy shall contain a provision that such policy and the coverage evidenced thereby shall be primary and non-contributing with respect to any policies carried by Landlord. Tenant shall deliver reasonably satisfactory evidence of such insurance to Landlord on or before the Commencement Date, and thereafter at least thirty (30) days before the expiration dates of expiring policies. At Landlord's request, Tenant shall deliver to Landlord copies of such policies. Notwithstanding the foregoing, if any such insurance expires without having been renewed by Tenant, Landlord shall have the option in addition to Landlord's other remedies to procure such insurance for the account of Tenant immediately and without notice to Tenant, and the cost thereof shall be paid to Landlord as Additional Rent. The limits of the insurance required under this Lease shall not limit the liability of Tenant. 15.4 Compliance with Insurance Requirements. Tenant shall not do anything, or suffer or permit anything to be done, in or about the Premises that shall invalidate or be in conflict with the provisions of any fire or other insurance policies covering the Building. Tenant, at Tenant's expense, shall comply with, and shall cause all occupants of the Premises to comply with, all applicable customary rules, orders, regulations or requirements of any board of fire underwriters or other similar body. 15.5 Landlord's Insurance. Landlord will purchase and maintain a standard policy of "all risk" insurance with customary exclusions covering the Building for the full replacement cost of the Building. Landlord will purchase and maintain broad form commercial general liability insurance with a minimum combined single limit of liability of at least Two Million Dollars ($2,000,000), written by companies authorized to do business in the State in which the Building is located All costs of insurance carried by Landlord and referred to in this Section or otherwise will constitute Operating Expenses. 15.6 Assumption of Risk. Landlord shall not be liable for any damage or damages of any nature whatsoever to persons or property caused by explosion, fire, theft or breakage, vandalism, falling plaster, by sprinkler, drainage or plumbing systems, or air conditioning equipment, by the interruption of any public utility or service, by steam, gas, electricity, water, rain or other substances leaking, issuing or flowing into any part of the Premises, by natural occurrence, acts of the public enemy, riot, strike, insurrection, war, court order, requisition or order of governmental body or authority, or by anything done or omitted to be done by any tenant, occupant or person in the Building, it being agreed that Tenant shall be responsible for obtaining appropriate insurance to protect its interests. 16. Eminent Domain. 16.1 Effect of Taking. If all of the Premises is condemned or taken in any permanent manner before or during the Term for any public or quasi-public use, or any permanent transfer of the Premises is made in avoidance of an exercise of the power of eminent domain (each of which events shall be referred to as a "taking"), this Lease shall automatically terminate as of the date of the vesting of title as a result of such taking. If a part of the Premises is so taken, this Lease shall automatically terminate as to the portion of the Premises so taken as of the date of the vesting of title as a result of such taking. If such portion of the Property is taken as to render the Building incapable of economically feasible operation, this Lease may be terminated by Landlord, as of the date of the vesting of title as a result of such taking, by written notice to Tenant given within sixty (60) days following notice to Landlord of the date on which said vesting will occur. If this Lease is not terminated as a result of any taking, Landlord shall restore the Building to an architecturally whole unit; provided, however, that Landlord shall not be obligated to expend on such restoration more than the amount of condemnation proceeds actually received by Landlord. 16.2 Award. Landlord shall be entitled to the entire award for any taking, including, without limitation, any award made for the value of the leasehold estate created by this Lease. No award for any partial or entire taking shall be apportioned, and Tenant hereby assigns to Landlord any award that may be made in any taking, together with any and all rights of Tenant now or hereafter arising in or to such award or any part thereof; provided, however, that nothing contained herein shall be deemed to give Landlord any interest in or to require Tenant to assign to Landlord any separate award made to Tenant for its relocation expenses, the taking of personal property and fixtures belonging to Tenant, the unamortized value of improvements made or paid for by Tenant or the interruption of or damage to Tenant's business. 16.3 Adjustment of Rent. In the event of a partial taking that does not result in a termination of this Lease as to the entire Premises, Base Rent and Additional Rent shall be equitably adjusted in relation to the portions of the Premises and Building taken or rendered untenantable by such taking. 16.4 TWggL4ry Taking. If all or any portion of the Premises is taken for a limited period of time before or during the Term, this Lease shall remain in full force and effect; provided, however, that Rent shall abate during such limited period in proportion to the portion of the Premises taken by such taking. Landlord shall be entitled. to receive the entire award made in connection with any such temporary taking. Any temporary taking of all or a portion of the Premises which continues for twelve (12). months shall be deemed a permanent taking of the Premises or such portion. 17. Assignment; Subleasing. 17.1 Consent Requiired. Neither Tenant nor any sublessee or assignee of Tenant, directly or indirectly, voluntarily or by operation of law, shall sell, assign, encumber, pledge or otherwise transfer or hypothecate all or any part of the Premises or Tenant's leasehold estate hereunder (each such act is referred to as an "Assignment"), or sublet the Premises or any portion thereof or permit the Premises to be occupied by anyone other than Tenant (each such act is referred to as a "Sublease"), without Landlord's prior written consent in each instance. If such proposed Sublease is to an entity controlled by Tenant, Landlord's consent will not be unreasonably withheld. Any Assignment or Sublease that is not in compliance with this Article 17 shall be void and, at the option of Landlord, shall constitute a material default by Tenant under this Lease. The acceptance of Rent by Landlord from a proposed assignee, sublessee or occupant of the Premises shall not constitute consent to such Assignment or Sublease by Landlord. Fifty percent (50%) of the Excess Assignment Consideration which is attributable to this Lease in connection with any Assignment, and fifty percent (50%) of the Excess Sublease Consideration, shall be payable to Landlord as Additional Rent. The right to such amounts is expressly reserved from the grant of Tenant's leasehold estate for the benefit of Landlord. Tenant shall use reasonable, diligent efforts to collect all such amounts. Landlord shall have the right from time to time, upon reasonable advance notice, to review Tenant's records relating to any such amounts payable to or received by Tenant. 17.2 Notice. Any request by Tenant for Landlord's consent to a specific Assignment or Sublease shall include (a) the name of the proposed assignee, sublessee or occupant, (b) the nature of the proposed assignee's sublessee's or occupant's business to be carried on in the Premises, (c) a copy of the proposed Assignment or Sublease, and (d) such financial information (in the event of an Assignment) and such other information as Landlord may reasonably request concerning the proposed assignee, sublessee or occupant or its business. Landlord shall respond in writing, stating the reasons for any disapproval, within fifteen (15) business days after receipt of all information reasonably necessary to evaluate the proposed Assignment or Sublease. 17.3 No Release. No consent by Landlord to any Assignment or Sublease by Tenant, and no specification in this Lease of a right of Tenant's to make any Assignment or Sublease, shall relieve Tenant of any obligation to be performed by Tenant under this Lease, whether arising before or after (a) the Assignment or Sublease or (b) any extension of the Term (pursuant to exercise of an option granted in this Lease). The consent by Landlord to any Assignment or Sublease shall not relieve Tenant or any successor of Tenant from the obligation to obtain Landlord's express written consent to any other Assignment or Sublease. 17.4 Cost of Processigg Request. Tenant shall pay to Landlord the reasonable amount of Landlord's cost of processing every proposed Assignment or Sublease, including without limitation reasonable legal review fees and expenses, together with the reasonable amount of all direct and indirect expenses incurred by Landlord arising from any assignee, occupant or sublessee taking occupancy (including, without limitation, freight elevator operation for moving of fiunishings and trade fixtures, security service, janitorial and cleaning service, and rubbish removal service). 17.5 Corporate or Partnership Transfers. Any sale or other transfer, including without limitation by consolidation, merger or reorganization, of a majority of the voting stock of Tenant or any beneficial interest therein, if Tenant is a corporation, or any sale or other transfer of a majority of the general partnership or membership interests in Tenant or any beneficial interest therein, if Tenant is a partnership or limited liability company, shall be an Assignment for purposes of this Lease. The provisions of this Section 17.5 shall not apply at any time the stock of Tenant is traded on a national exchange. 17.6 Assumption of Obligations. Each assignee or other transferee of Tenant's interest under this Lease, other than Landlord, shall assume all obligations of Tenant under this Lease and shall be and remain liable jointly and severally with Tenant for the payment of Base Rent and Additional Rent, and for the performance of all the terms, covenants, conditions and agreements contained in this Lease which are to be performed by Tenant. Each sublessee of all or any portion of the Premises shall agree in writing for the benefit of Landlord (a) to comply with and agree to the provisions of this Lease, and (b) that such sublease (and all further subleases of any portion of the Premises) shall terminate upon any termination of this Lease, regardless of whether or not such termination is voluntary. No Assignment or Sublease shall be valid or effective unless the assignee or sublessee or Tenant shall deliver to Landlord a fully-executed counterpart of the Assignment or Sublease and an instrument that contains a covenant of assumption by the assignee or agreement of the sublessee, reasonably satisfactory in substance and form to Landlord, consistent with the requirements of this Section 17.6. The failure or refusal of the assignee to execute such instrument of assumption or of the sublessee to execute the agreement described above shall not release or discharge the assignee or sublessee from its obligations that would have been contained in such instrument or agreement, all of which obligations shall run automatically to such assignee or sublessee. 17.7 Limitation. Notwithstanding anything contained in this Lease, no proposed Assignment or Sublease shall provide for a rental or other payment for the leasing, use, occupancy or utilization of all or any portion of the Premises based, in whole or in part, on the income or profits derived by any person from the property so leased, used, occupied or utilized other than an amount based on a fixed percentage or percentages of gross receipts or sales. No proposed Assignment of this Lease or Sublease of the Premises shall, in the sole opinion of Landlord, (a) cause a violation of the Employee Retirement Income Security Act of 1974 or the regulations promulgated thereunder, as amended from time to time, by such proposed assignee or subtenant, by Landlord, or by any person which, directly or indirectly, controls, is controlled by, or is under common control with, Landlord or any person who controls Landlord or (b) result in Landlord, or any person which, directly or indirectly, controls Landlord, receiving "unrelated business taxable income" as defined in the Internal Revenue Code, as amended. 18. Utilities and Services. 18.1 Utilities. Tenant shall contract directly with the applicable utility provider to arrange for the provision of water, sewer, gas, electric and other utilities required by Tenant. Tenant shall promptly pay directly to such utility provider all costs of utilities consumed at the Premises. 18.2 Certain Services. Tenant shall contract separately for the provision, at Tenant's sole cost, of janitorial service and trash removal and Landlord will have no obligation to provide any such services to the Premises. Tenant shall maintain, at Tenant's sole cost, a written service contract for maintenance of HVAC facilities servicing the Premises with a reputable service vendor approved by Landlord. 19. Default. 19.1 Events of Default. Except as otherwise provided in this Lease, the failure to perform or honor any covenant, condition or other obligation of Tenant or the failure of any representation made by Tenant under this Lease shall constitute a default by Tenant upon expiration of the applicable grace period, if any. Tenant shall have a period of five (5) days from the date of written notice from Landlord within which to cure any default in the payment of Rent. Except as otherwise provided in Article 20, Tenant shall have a period of thirty (30) days from the date of written notice from Landlord within which to cure any other default under this Lease; provided, however, that with respect to any default (other than a default which can be cured by the payment of money) that cannot reasonably be cured within thirty (30) days, the default shall not be deemed to be uncured if Tenant commences to cure within thirty (30) days from Landlord's notice, continues to prosecute diligently the curing of such default and actually cures such default within sixty (60) days after Landlord's notice. Notwithstanding anything contained in this Section 19. 1, Landlord shall not be obligated to provide Tenant with notice of substantially similar defaults more than two (2) times in any twelve (12) month period. 19.2 Remedies. Upon the occurrence of a default by Tenant that is not cured by Tenant within the applicable grace periods specified in Section 19. 1, Landlord shall have all of the following rights and remedies in addition to all other rights and remedies available to Landlord at law or in equity: 19.2.1 The right to terminate Tenant's right to possession of the Premises and to recover (i) all Rent which shall have accrued and remain unpaid through the date of termination; plus (ii) the amount by which the unpaid Rent for the balance of the Term, discounted to present value at the Prime Rate then in effect, shall exceed the then fair rental value of the Premises for the balance of the Term, similarly discounted, plus (iii) any other amount necessary to compensate Landlord for all the damages caused by Tenant's failure to perform its obligations under this Lease (including, without limitation, reasonable attorneys' and accountants' fees, costs of alterations of the Premises, interest costs and brokers' fees incurred upon any reletting of the Premises). 19.2.2 The right to continue the Lease in effect after Tenant's breach and abandonment and recover Rent as it becomes due. Acts of maintenance or preservation, efforts to relet the Premises or the appointment of a receiver upon Landlord's initiative to protect its interest under this Lease shall not of themselves constitute a termination of Tenant's right to possession. 19.2.3 The right and power to enter the Premises and remove therefrom all persons and property, to store such property in a public warehouse or elsewhere at the cost of and for the account of Tenant, and to sell such property and apply the proceeds therefrom pursuant to applicable law. In such event, Landlord may from time to time sublet the Premises or any part thereof for such term or terms (which may extend beyond the Term) and at such rent and such other terms as Landlord in its sole discretion may deem advisable, with the right to make alterations and repairs to the Premises. Upon each such subletting, rents received from such subletting shall be applied by Landlord, first, to payment of any costs of such subletting (including, without limitation, reasonable attorneys' and accountants' fees, costs of alterations of the Premises, interest costs, and brokers' fees) and of any such alterations and repairs; second, to payment of Base Rent and Additional Rent due and unpaid hereunder; and the residue, if any, shall be held by Landlord and applied in payment of future Base Rent and Additional Rent as they become due. If any rental or other charges due under such sublease shall not be promptly paid to Landlord by the sublessee, or if such rentals received from such subletting during any month are less than Base Rent and Additional Rent to be paid during that month by Tenant, Tenant shall pay any such deficiency to Landlord the costs of such subletting (including, without limitation, attorneys' and accountants' fees, costs of alterations of the Premises, interest costs and brokers' fees), and any other amounts due Landlord under this Section 19.2. Such deficiency shall be calculated and paid monthly. For all purposes set forth in this Section 19.2.3, Landlord is irrevocably appointed attorney-in-fact for Tenant, with power of substitution. No taking possession of the Premises by Landlord shall be construed as an election on its part to terminate this Lease unless a written notice of such intention is given to Tenant. Landlord's subletting the Premises without termination shall not constitute a waiver of Landlord's right to elect to terminate this Lease for such previous breach. 19.2.4 The right to have a receiver appointed for Tenant, upon application by Landlord, to take possession of the Premises, to apply any rental collected from the Premises and to exercise all other rights and remedies granted to Landlord pursuant to this Article. 19.2.5 The right to specific performance of any or all of Tenant's obligations under, and to damages for delay in or failure of such performance. 19.3 Remedies Cumulative. The exercise of any remedy provided by law or the provisions of this Lease shall not exclude any other remedies unless they are expressly excluded by this Lease. Tenant hereby waives any right of redemption or relief from forfeiture following termination of; or exercise of any remedy by Landlord with respect to, this Lease. 19.4 Events of Default by Landlord. The failure by Landlord to observe or perform any of the covenants, conditions, or provisions of this Lease to be observed or performed by Landlord, where such failure shall continue for a period of thirty (30) days after written notice thereof by Tenant to Landlord, shall be deemed to be a default by Landlord under this Lease; provided, however, that if the nature of Landlord's default is such that more than thirty (30) days are reasonably required for its cure, then Landlord shall not be deemed to be in default if Landlord commences such cure within said thirty (30) day period and thereafter diligently prosecutes such cure to completion, provided that the default shall actually be cured within ninety (90) days after notice. 19.5 Limitation of Landlord's Liability. None of Landlord's covenants, undertakings or agreements under this Lease is made or intended as personal covenants, undertakings or agreements by any of Landlord's shareholders, directors, officers, trustees or constituent partners. All liability for damage or breach or nonperformance by Landlord shall be collectible only out of Landlord's interest from time to time in the Property, and no personal liability is assumed by nor at any time may be asserted against Landlord or any of Landlord's shareholders, directors, officers, trustees or constituent partners. 19.6 Transfer of Landlord's Interest. Upon the sale or other conveyance or transfer of Landlord's interest in the Property, the transferor shall be relieved of all covenants and obligations of Landlord arising under this Lease from and after the closing of such We, conveyance or transfer. Insolyenc?or Bankruptcy. The occurrence of any of the following shall, at Landlord's option, constitute a breach of this Lease by Tenant: (i) the appointment of a receiver to take possession of all or substantially all of the assets of Tenant or the Premises, (ii) an assignment by Tenant for the benefit of creditors, (iii) any action taken or suffered by Tenant under any insolvency, bankruptcy, reorganization, moratorium or other debtor relief act or statute, whether now existing or hereafter amended or enacted, (iv) the filing of any voluntary petition in bankruptcy by Tenant, or the filing of any involuntary petition by Tenant's creditors, which involuntary petition remains undischarged for a period of thirty (30) days, (v) the attachment, execution or other judicial seizure of all or substantially all of Tenant's assets or the Premises, if such attachment or other seizure remains undismissed or undischarged for a period of ten (10) days after the levy thereof, (vi) the admission of Tenant in writing of its inability to pay its debts as they become due, (vii) the filing by Tenant of any answer admitting or failing timely to contest a material allegation of a petition filed against Tenant in any proceeding seeking reorganization, arrangement, composition, readjustment, liquidation or dissolution of Tenant or similar relief; (viii) if within thirty (30) days after the commencement of any proceeding against Tenant seeking any reorganization, arrangement, composition, readjustment, liquidation, dissolution or similar relief under any present or future statute, law or regulation, such proceeding shall not have been dismissed, or (ix) the occurrence of any of the foregoing on the part of any Guarantor. Upon the occurrence of any such event or at any time thereafter, Landlord may elect to exercise any of its remedies under Article 19 above or any other remedy available at law or in equity. In no event shall this Lease be assigned or assignable by operation of law or by voluntary or involuntary bankruptcy proceedings or otherwise, and in no event shall this Lease or any rights or privileges under this Lease be an asset of Tenant under any bankruptcy, insolvency or reorganization proceedings. If, upon the occurrence of any of the events enumerated above, under applicable law Tenant or the trustee in bankruptcy has the right to affirm this Lease and continue to perform the obligations of Tenant under this Lease, Tenant or such trustee, in such time period as may be permitted by the bankruptcy court having jurisdiction, shall cure all defaults of Tenant outstanding under this Lease as of the date of the affirmance of this Lease and provide to Landlord such adequate assurances as may be necessary to ensure Landlord of the continued performance of Tenant's obligations under this Lease. Notwithstanding the provisions of Section 19. 1, there shall be no cure periods for any breach or default under this Article 20 except as expressly provided in this Article 20. 21. Fees and Exnenses; Indemnity: Payment. 21.1 Landlord's Right to RemWy Defaults. If Tenant shall default in the performance of any of its obligations under this Lease after notice and expiration of the applicable cure period, Landlord, at any time thereafter and without additional notice, may remedy such default for Tenant's account and at Tenant's expense, without waiving any other rights or remedies of Landlord with respect to such default. Notwithstanding the foregoing, Landlord shall have the right to cure any failure by Tenant to perform any of its obligations under this Lease without notice to Tenant if such failure results in an immediate threat to life or safety of any person, or impairs the Building or its efficient operation. Notwithstanding anything contained in this Lease, Landlord shall not be liable for, and there shall be no abatement of Rent with respect to, any injury to or interference with Tenant's business arising from the exercise by Landlord of its rights under this Section 21.1. 21.2 Indemnity. Tenant shall indemnify, defend and hold Landlord harmless from and against any and all claims, losses, costs, liabilities, damages and expenses including, without limitation, penalties, fines and reasonable attorneys' fees, to the extent incurred in connection with or arising from (a) any default by Tenant in the performance of its obligations under this Lease, or the failure of any representation made by Tenant in this Lease, (b) the use or occupancy or manner of use or occupancy of the Premises by Tenant or any person occupying the Premises, (c) any occurrence on the Premises from any cause whatsoever, except to the extent caused by the gross negligence or willful misconduct of Landlord. 21.3 Interest on Past Due Obligations. Unless otherwise specifically provided herein, any amount due from Tenant to Landlord under this Lease which is not paid within ten (10) days after written notice from Landlord shall bear interest from the due date until paid at the Lease Interest Rate. Access to Premises. Landlord reserves for itself and its agents, employees and independent contractors the right to enter the Premises upon at least twenty-four (24) hours notice to inspect the Premises, to supply any service to be provided by Landlord to Tenant, to show the Premises to prospective purchasers, mortgagees, beneficiaries or tenants, to post notices of nonresponsibility, to determine whether Tenant is complying with its obligations under this Lease, and to alter, improve or repair the Premises or any other portion of the Building. Landlord's right to enter the Premises shall include the right to grant access to the Premises to governmental or utility employees. Landlord may erect, use and maintain scaffolding, pipes, conduits and other necessary structures in and through the Premises or any other portion of the Building where reasonably required by the character of the work to be performed in making repairs or improvements, provided that the entrance to the Premises shall not be blocked thereby, and that there is no unreasonable interference with the business of Tenant. In the event of an emergency, Landlord shall have the right to enter the Premises at any time without notice. Tenant waives any claim for damages for any injury or inconvenience to or interference with Tenant's business, any loss of occupancy or quiet enjoyment of the Premises, any right to abatement of Rent, or any other loss occasioned by Landlord's exercise of any of its rights under this Article 22. Any entry to the Premises or portions thereof obtained by Landlord in accordance with this Article 22 shall not be construed or deemed to be a forcible or unlawful entry into, or a detainer of, the Premises, or an eviction, actual or constructive, of Tenant from the Premises or any portion thereof. Landlord shall perform any work pursuant to this Article 22 in a manner designed to cause as little interference with Tenant's use of the Premises as is reasonably practical; provided, however, that Landlord shall not be obligated to perform work during other than normal business hours. To the extent reasonably practicable, any entry shall occur during normal business hours. Notices. Except as otherwise expressly provided in this Lease, any payment required to be made and any bills, statements, notices, demands, requests or other communications given or required to be given under this Lease shall be effective only if rendered or given in writing, sent by personal delivery or registered or certified mail, return receipt requested, or by overnight courier service, addressed (a) to Tenant at Tenant's Address, (b) to Landlord at Landlord's Address, or (c) to such other. address as either Landlord or Tenant may designate as its new address for such purpose by notice given to the other in accordance with the provisions of this Article 23. Any such bill, statement, notice, demand, request or other communication shall be deemed to have been rendered or given on the date of receipt or refusal to accept delivery. No Waiver. Neither this Lease nor any term or provision of this Lease may be waived, and no breach thereof shall be waived, except by a written instrument signed by the party against which the enforcement of the waiver is sought. No failure by Landlord to insist upon the strict performance of any obligation of Tenant under this Lease or to exercise any right, power or remedy consequent upon a breach thereof, no acceptance of full or partial Base Rent or Additional Rent during the continuance of any such breach, no course of conduct between Landlord and Tenant, and no acceptance of the keys or to possession of the Premises before the termination of the Term by Landlord or any employee of Landlord shall constitute a waiver of any such breach or a waiver or modification of any term, covenant or condition of this Lease or operate as a surrender of this Lease. No waiver of any breach shall affect or alter this Lease, but each and every term, covenant and condition of this Lease shall continue in full force and effect with respect to any other then-existing or subsequent breach thereof. No payment by Tenant or receipt by Landlord of a lesser amount than the aggregate of all Base Rent and Additional Rent then due under this Lease shall be deemed to be other than on account of the first items of such Base Rent and Additional Rent then accruing or becoming due, unless Landlord elects otherwise. No endorsement or statement on any check and no letter accompanying any check or other payment of Base Rent or Additional Rent in any such lesser amount and no acceptance by Landlord of any such check or other payment shall constitute an accord and satisfaction. Landlord may accept such check or payment without prejudice to Landlord's right to recover the balance of such Base Rent or Additional Rent or to pursue any other legal remedy. Tenant's Certificates. Tenant, at any time and from time to time, within ten (10) days after written request, shall execute, acknowledge and deliver to Landlord, addressed (at Landlord's request) to Landlord and any prospective purchaser, ground or underlying lessor or mortgagee or beneficiary of any part of the Property, an estoppel certificate in form and substance reasonably designated by Landlord. Tenant shall cause Guarantor to join in any such estoppel certificate for the purpose of certifying that Guarantor's guaranty remains in full force and effect. It is intended that any such certificate may be relied upon by Landlord and any prospective purchaser, ground or underlying lessor or mortgagee or beneficiary of all or any part of the Property. Termt's Taxes. In addition to all other sums to be paid by Tenant under this Lease, Tenant shall pay, before delinquency, any and all taxes levied or assessed during the Term, whether or not now customary or within the contemplation of the parties, (a) upon, measured by or reasonably attributable to Tenant's improvements, equipment, furniture, fixtures and other personal property located in the Premises, including without limitation Alterations, (b) upon or measured by Base Rent or Additional Rent, or both, payable under this Lease, including without limitation any gross income tax or excise tax levied by any governmental body having jurisdiction with respect to the receipt of such rental; (c) upon or with respect to the possession, leasing, operation, management, maintenance, alteration, repair, use or occupancy by Tenant of the Premises or any portion thereof, or (d) upon this transaction or any document to which Tenant is a party creating or transferring an interest or an estate in the Premises. Tenant shall reimburse Landlord upon demand for any and all such taxes paid or payable by Landlord (other than state and federal personal or corporate income taxes measured by the net income of Landlord from all sources). Notwithstanding anything to the contrary in this Section 26, Tenant shall have the right to contest any taxes payable by Tenant under this Section provided that Tenant, at its sole cost and expense, diligently undertakes and pursues any such contest in appropriate proceedings, indemnifies Landlord against and holds Landlord harmless from all loss or damages that Landlord shall suffer by reason of such contest, and does not permit any lien to be placed on the Building or any part thereof or interest therein. 27. Miscellaneous. 27.1 Financial Statements. Upon Landlord's written request made from time to time, but in no event more often than once each calendar year, Tenant shall promptly furnish Landlord with certified financial statements reflecting Tenant's then- current financial condition, in such form and detail as Landlord may reasonably request; provided, however, that so long as, the stock of Tenant is traded on a national exchange, Tenant may furnish an annual report instead of financial statements. 27.2 References. All personal pronouns used in this Lease, whether used in the masculine, feminine or neuter gender, shall include all other genders; the singular shall include the plural, and vice versa. The use herein of the word "including" or "include" when following any general statement, term or matter shall not be construed to limit such statement, term or matter to the specific items or matters set forth immediately following such word or to similar items or matters, whether or not non- limiting language (such as "without limitation", or "but not limited to," or words of similar import) is used with reference thereto. All references to "mortgage" and "mortgagee" shall include deeds of trust and beneficiaries under deeds of trust, respectively. All Exhibits and Riders referenced and attached to this Lease are incorporated in this Lease by this reference. The captions preceding the Sections and Articles of this Lease have been inserted solely as a matter of convenience, and such captions in no way define or limit the scope or intent of any provision of this Lease. 27.3 S, c_msors and Assigns. The terms, covenants and conditions contained in this Lease shall bind and inure to the benefit of Landlord and Tenant and, except as otherwise provided herein, their respective personal representatives and successors and assigns; provided, however, that upon the sale, assignment or transfer by Landlord (or by any subsequent Landlord) of its interest in the Building as owner or lessee, including, without limitation, any transfer upon or in lieu of foreclosure or by operation of law, Landlord (or subsequent Landlord) shall be relieved from all subsequent obligations or liabilities under this Lease, and all obligations subsequent to such sale, assignment or transfer (but not any obligations or liabilities that have accrued prior to the date of such sale, assignment or transfer) shall be binding upon the grantee, assignee or other transferee of such interest. Any such grantee, assignee or transferee, by accepting such interest, shall be deemed to have assumed such subsequent obligations and liabilities. 27.4 Sev ili . If any provision of this Lease or the application thereof to any person or circumstance shall, to any extent, be invalid or unenforceable, the remainder of this Lease, or the application of such provision to persons or circumstances other than those as to which it is invalid or unenforceable, shall not be affected thereby, and each provision of this Lease shall remain in effect and shall be enforceable to the full extent permitted by law. 27.5 Construction. This Lease. shall be governed by and construed in accordance with the laws of the State in which the Building is located, without regard for such State's choice of law requirements. 27.6 Integration. The terms of this Lease (including, without limitation, the Exhibits and Riders to this Lease) are intended by the parties as a final expression of their agreement with respect to such tenors as are included in this Lease and may not be contradicted by evidence of any prior or contemporaneous agreement, arrangement, understanding or negotiation (whether oral or written). The parties further intend that this Lease constitutes the complete and exclusive statement of its teens, and no extrinsic evidence whatsoever may be introduced in any judicial proceeding involving this Lease. Neither Landlord nor Landlord's agents have made any representations or warranties with respect to the Premises, the Building, the Property or this Lease except as expressly set forth herein. The language in all parts of this Lease shall in all cases be construed as a whole and in accordance with its fair meaning and not construed for or against any party by reason of such party having drafted such language. 27.7 Surrender. Upon the expiration or sooner termination of the Term, Tenant will quietly and peacefully surrender to Landlord the Premises in the condition in which they are required to be kept as provided in this Lease, ordinary wear and tear excepted. 27.8 Quiet EnigM nt. Upon Tenant paying the Base Rent and Additional Rent and performing all of Tenant's obligations under this Lease, Tenant may peacefully and quietly enjoy the Premises during the Term as against all persons or entities claiming by or through Landlord; subject, however, to the provisions of this Lease and to any mortgages or deeds of trust or ground or underlying leases referred to in Article 12. 27.9 Holding Over. If Tenant shall hold over after the expiration of the Term, Tenant shall pay monthly Base Rent equal to two hundred percent (200%) of the Base Rent payable during the final full month of the Lease Year (exclusive of abatements, if any), in which such termination occurs together with an amount reasonably estimated by Landlord for the monthly Additional Rent payable under this Lease, and shall otherwise be on the terms and conditions herein specified so far as applicable (but expressly excluding all renewal or extension rights). No holding over by Tenant after the Term shall operate to extend the Term. In the event of any holding over without Landlord's prior written consent, Tenant shall indemnify Landlord against all claims for damages by any other tenant to whom Landlord may have leased all or any part of the Premises commencing upon or after the expiration of the Term. Any holding over with Landlord's written consent shall be construed as a tenancy at sufferance or from month to month, at Landlord's option. Any holding over without Landlord's written consent shall entitle Landlord to reenter the Premises as provided in Article 19, and to enforce all other rights and remedies provided by law or this Lease. 27.10 Time of Essence. Time is of the essence of each and every provision of this Lease. 27.11 Broker's Commissions. Each party represents and warrants to the other that it has not entered into any agreement or incurred or created any obligation which might require the other party to pay any broker's commission, finder`s fee or other commission or fee relating to the leasing of the Premises, other than the Broker. Each party shall indemnify, defend and hold harmless the other and the other's constituent partners and their respective officers, directors, shareholders, agents and employees from and against all claims for any such commissions or fees made by anyone claiming by or through the indemnifying party. 27.12 No M ffZcr. The voluntary or other surrender or termination of this Lease by Tenant, or a mutual cancellation hereof shall not work a merger, but, at Landlord's sole option, shall either terminate all existing subleases or subtenancies or shall operate as an assignment to Landlord of all such subleases or subtenancies. 27.13 Survival . All of Tenant's and Landlord's covenants and obligations contained in this Lease which by their nature might not be fully performed or capable of performance before the expiration or earlier termination of this Lease shall survive such expiration or earlier termination. No provision of this Lease providing for termination in certain events shall be construed as a limitation or restriction of Landlord's or Tenant's rights and remedies at law or in equity available upon a breach by the other party of this Lease. 27.14 Amendments. No amendments or modifications of this Lease or any agreements in connection therewith shall be valid unless in writing duly executed by both Landlord and Tenant. No amendment to this Lease shall be binding on any mortgagee or beneficiary of Landlord (or purchaser at any foreclosure sale) unless such mortgagee or beneficiary shall have consented in writing to such amendment. 27.15 WAIVER OF JURY TRIAL. LANDLORD AND TENANT KNOWINGLY, INTENTIONALLY AND VOLUNTARILY WAIVE TRIAL BY JURY IN ANY ACTION OR PROCEEDING BROUGHT BY EITHER PARTY AGAINST THE OTHER IN ANY MATTER ARISING OUT OF THIS LEASE, THE RELATIONSHIP OF LANDLORD AND TENANT, TENANT'S USE OR OCCUPANCY OF THE PREMISES. OR ANY CLAIM OF INJURY OR DAMAGE. 27.16 27.17 DELIVERY FOR EXAMINATION. DELIVERY OF THE LEASE TO TENANT SHALL NOT BIND LANDLORD IN ANY MANNER, AND NO LEASE OR OBLIGATIONS OF LANDLORD SHALL ARISE UNTIL THIS INSTRUMENT IS SIGNED BY BOTH LANDLORD AND TENANT AND DELIVERY IS MADE TO EACH. SEE RIDER ATTACHED TO AND MADE A PART OF THIS LEASE. IN WITNESS WHEREOF, Landlord and Tenant have each caused their duly authorized representatives to execute this Lease on their behalf as of the date first above written. McBRIDE PROPERTIES By: KEYSTONE PROPERTY TRUST, its general partner By: Name: igtophon J. quft ?n# Title: §g (o Vft CONTAINERBRIGHT, INC. By: C Z4=e?? A1. PENNSYLVANIA REMEDIES-CONFESSION OF JUDGMENT. (A) WHEN THIS LEASE OR TENANT'S RIGHT OF POSSESSION SHALL BE TERMINATED BY COVENANT OR CONDITION BROKEN, OR FOR ANY OTHER REASON, EITHER DURING THE TERM OF THIS LEASE, AND ALSO WHEN AND AS SOON AS SUCH TERM SHALL HAVE EXPIRED OR BEEN TERMINATED, TENANT HEREBY IRREVOCABLY AUTHORIZES AND EMPOWERS ANY ATTORNEY OF ANY COURT OF RECORD AS ATTORNEY FOR TENANT AND ANY PERSONS CLAIMING THROUGH OR UNDER TENANT TO CONFESS JUDGMENT IN EJECTMENT AGAINST TENANT AND ALL PERSONS CLAIMING THROUGH OR UNDER TENANT FOR THE RECOVERY BY LANDLORD OF POSSESSION OF THE PREMISES, FOR WHICH THIS LEASE SHALL BE SUFFICIENT WARRANT, WHEREUPON, IF LANDLORD SO DESIRES, A WRIT OF EXECUTION OR OF POSSESSION MAY ISSUE FORTHWITH, WITHOUT ANY PRIOR WRIT OR PROCEEDINGS WHATSOEVER, AND PROVIDED THAT IF FOR ANY REASON AFTER SUCH ACTION SHALL HAVE BEEN COMMENCED THE SAME SHALL BE DETERMINED, CANCELED OR SUSPENDED AND POSSESSION OF THE PREMISES HEREBY DEMISED REMAIN IN OR BE RESTORED TO TENANT OR ANY PERSON CLAIMING THROUGH OR UNDER TENANT, LANDLORD SHALL HAVE THE RIGHT, UPON ANY SUBSEQUENT DEFAULT OR DEFAULTS, OR UPON ANY SUBSEQUENT TERMINATION OR EXPIRATION OF THIS LEASE OR ANY RENEWAL OR EXTENSION HEREOF, OR OF TENANT'S RIGHT OF POSSESSION, AS HEREINBEFORE SET FORTH, TO CONFESS JUDGMENT IN EJECTMENT AS HEREINBEFORE SET FORTH ONE OR MORE ADDITIONAL TIMES TO RECOVER POSSESSION OF THE SAID PREMISES. (B) IN ANY ACTION OF OR FOR EJECTMENT, IF LANDLORD SHALL FIRST CAUSE TO BE FILED IN SUCH ACTION AN AFFIDAVIT MADE BY IT OR SOMEONE ACTING FOR IT SETTING FORTH THE FACTS NECESSARY TO AUTHORIZE THE ENTRY OF JUDGMENT, SUCH AFFIDAVIT SHALL BE CONCLUSIVE EVIDENCE OF SUCH FACTS; AND IF A TRUE COPY OF THIS LEASE (AND OF THE TRUTH OF THE COPY SUCH AFFIDAVIT SHALL BE SUFFICIENT EVIDENCE) BE FILED IN SUCH ACTION, IT SHALL NOT BE NECESSARY TO FILE THE ORIGINAL AS A WARRANT OF ATTORNEY, ANY RULE OF COURT, CUSTOM OR PRACTICE TO THE CONTRARY NOTWITHSTANDING. TENANT RELEASES TO LANDLORD, AND TO ANY AND ALL ATTORNEYS WHO MAY APPEAR FOR TENANT, ALL PROCEDURAL ERRORS IN ANY PROCEEDINGS TAKEN BY LANDLORD, WHETHER BY VIRTUE OF THE WARRANTS OF ATTORNEY CONTAINED IN THIS LEASE OR NOT, AND ALL LIABILITY THEREFOR. 2. Lender Protections. Tenant agrees to simultaneously give to any party holding a mortgage encumbering the Building, by registered or certified mail, a copy of any notice of default served upon Landlord provided Tenant has been notified in writing of the names and addresses of such mortgagee(s). Tenant further agrees that if Landlord shall have failed to cure such default within the time provided for in this Lease, then the mortgagee(s) shall have an additional thirty (30) days within which to cure such default or if such default cannot be cured within such time, then such additional time as may be necessary if within such thirty (30) days any mortgagee(s) has commenced and is diligently pursuing the remedies necessary to cure such default (including but not limited to commencement of foreclosure proceedings, if necessary to effect such cure), in which event Tenant shall not have the right to pursue any claim against Landlord or such mortgagee, including but not limited to any claim of actual or constructive eviction, so long as such remedies are being diligently pursued. IN WITNESS WHEREOF, Landlord and Tenant have each caused their duly authorized representatives to execute this Rider on their behalf as of the date first above written. McBRIDE PROPERTIES By: Keystone Property T its general partner By: Q?N Ste h n J. butte Senior Vice President CONTAMERBRIGHT, INC. WAIVER OF PRIOR HEARING CERTIFICATION The undersigned acknowledges that, subject only to the default notices and cure periods expressly provided for in the above Lease, the above Lease authorizes and empowers Landlord, without the undersigned receiving My 11ior notice or any prior hearing in any court, to cause the entry of judgments against the undersigned for possession of the leased premises and immediately thereafter, without the undersioW receiving my Rdor notice or any prior hearing in anv court , to exercise post judgment enforcement and execution remedies to remove the undersigned from the leased premises by law enforcement officers). The undersigned acknowledges that it has agreed to waive its rights to a prior notice and hearing under the Constitution of the United States, the Constitution of the Commonwealth of Pennsylvania and all other applicable state and federal laws, in connection with Landlord's ability to cause the entry of judgments against the undersigned and immediately thereafter exercise Landlord's post judgment enforcement execution remedies The undersigned has discussed the legal impact of this waiver with its independent counsel, and the undersigned acknowledges that it has freely waived such rights. CONTAINERBRIGHT, INC. By; r---- Name: StAS?JN • 7irrvd c E Title: 4,6f. QED Dated: April ,L, 2003 EXHIBIT A WORK LETTER Landlord and Tenant agree as follows: 1. Designation of Tenant's Construction Representative. Tenant shall designate a Construction Representative. Tenant's Construction Representative: (a) shall be available to meet and consult with Landlord on a continuing basis at the Premises as Tenant's representative concerning the matters which are the subject of this Work Letter; and (b) shall have the power legally to bind Tenant under this Work Letter in giving direction to Landlord, in giving approval of design documents and work, and in making requests and approval for changes. 2. Landlord's Work. (a) All work (including all materials, supplies, components, labor and services therefor) required to cause the improvements contemplated by the Scope of Work to be completed is called the "Landlord's Work". (b) Landlord shall supervise, oversee, schedule and coordinate the performance of the Landlord's Work. Landlord may (i) make substitutions of material or components of equivalent grade and quality. when and if any specified material or component shall not be readily or reasonably available, and (ii) make changes to the work necessitated by conditions met in the course of construction. Landlord shall cause Landlord's Work to be performed in a good and workmanlike manner in accordance with all applicable laws. All materials and equipment furnished in the performance of Landlord's Work shall be of good quality. Landlord. (c) Landlord's Work shall be performed by a contractor selected by 3. Substantial Completion. (a) With respect to Landlord's Work, the term "Substantial Completion" or "Substantially Complete" shall mean that state of completion of Landlord's Work which will allow Tenant to use the Premises for its intended purposes without material interference to or impairment of Tenant's business activities by reason of any item of work remaining to be done to effect full completion of Landlord's Work; and in addition reasonable means of access to the Premises shall have been installed and shall be available to Tenant. (b) The term "Substantial Completion Date" shall mean the date on which the Landlord's Work is Substantially Complete. 4. Tenant Delays. Each of the following shall constitute a Tenant Delay (collectively, "Tenant Delays"): (a) Any failure by Tenant to furnish any required notice, plan, drawing, information, approval or consent within any respective required time period as set forth in this Work Letter or elsewhere in the Lease. (b) Any changes to space plans or construction plans requested by Tenant, or any changes to the Landlord's Work itself requested by Tenant. (c) Delays caused by the performance of any work or activity in the Premises by Tenant or any of its employees, agents, or contractors. 5. Tenant's Construction Representative's Access Inspection, and Approval. (a) Landlord and Tenant with their respective consultants shall make periodic joint inspections of the Premises from time to time during construction at reasonable times on business days, and each time shall jointly approve a written statement or assessment of the status of construction, the tasks remaining to be completed and ultimately the date of Substantial Completion. (b) As to all Landlord's Work performed by or on behalf of Landlord prior to the Substantial Completion Date and not objected to by Tenant, it shall be conclusively deemed on the Substantial Completion Date that such work was satisfactorily performed in accordance with and meets the requirements of this Lease. As to any item of Landlord's Work remaining to be completed after the Substantial Completion Date ("Punchlist Items"), Landlord shall supervise the completion of such item within sixty (60) days after the Substantial Completion Date (except for items which cannot reasonably be completed within such sixty (60) day period, which items shall be completed as promptly as practicable using diligent efforts thereafter). 6. Payment of Cost of Landlord's Work. (a) All costs of performing the Landlord's Work shall be paid by Landlord; provided, all additional costs of performing the Landlord's Work arising from any Tenant Delay shall be paid by Tenant within ten (10) days of request by Landlord. (b) Notwithstanding anything contained in this Work Letter or the Lease, Tenant shall reimburse Landlord, within ten (10) days after delivery of Landlord's invoice, for all fees and expenses paid by Landlord to acquire additional EDUs for the Property. EXHIBIT B SCOPE OF WORK CONTAINER BRIGHT Tenant Fist-Out 2410 Gettysburg Road 33,600 Sq. Ft. March 14, 2003 UE NERAL REQUIREMENTS: 1. Provide Architectural, Mechanical and Electrical drawings and Pennsylvania Department of Labor & Industry approval for Lower Allen Township building permit. Obtain permits for construction. Extra EDU's to be paid by tenant. 2. Provide project management and supervision necessary to coordinate all phases of construction to ensure completion of project within forty-five (45) calendar days of receipt of signed contract with no changes to scope or plans. 3. Furnish standard Certificate of Insurance prior to starting on site work. 4. Provide on-going clean up and removal of trash and debris. 5. Provide job site communications. 6. Provide temporary electric. Utility bills paid by owner. 7. Provide final cleaning in preparation for tenant occupancy to include: scrub warehouse floor, clean and seal VCT, clean and polish mirrors, clean plumbing fixtures. 8. Project closeout A. Develop preliminary punch list and correct items prior to walk through. B. Conduct walkthrough with tenant and develop punchlist. Punchlist items to be completed prior to final payment. C. Secure occupancy permits and turnover to landlord and tenant. D. Develop As-Built drawings covering architectural, mechanical and electrical work and submit to landlord and tenant. E. Collect operation and maintenance manuals and warranties and turn over to landlord tenant. F. Provide one-year warranty from date of final walkdbrough on materials and workmanship. DEMOLITION 1. Saw cut and remove concrete slab at plumbing connection for tunnel wash at NorthEast corner of building. 2. Remove existing ceiling tile. 1. Replace concrete floor at tunnel wash plumbing connection. CARPENTRY 1. Provide wall blocking for cabinets and counters. 2. Provide 61n. ft. of base cabinet and countertop at fax/copy. 3. Provide 41n. ft. of base cabinet and countertop at break room. DOOR FRAMES AND HARDMARE 1. Provide one (1) hollow metal knock down frame. 2. Provide one (1) wood door. 3. Re-key existing locks. 4. Relocate one (1) door and frame. 1. 1/2" finished drywall on 3 5/8" metal studs per plan. 2. Provide 2 x 4 acoustical ceiling per plan. FLOORING 1. Provide Armstrong Standard Excelon VCT w/vinyl base in break room. 2. Provide carpet in offices. 1. Provide two (2) coats of flat latex on drywall in offices and two (2) coats of semi-gloss enamel on new doorframes. FIRE F TIN iISBRS 1. Provide one (1) surface mounted fire extinguisher in break room. 1. Provide sprinkler system for office area. 2. Provide new sprinkler system in warehouse capable of protecting Class IV product up to 18' in rack. 1. Provide one (1) stainless steel sink with connections to existing plumbing in wall. 2. Provide 4" diameter connection to sewer in northeast quadrant of building. 3. Provide 1" valved water connection for tunnel wash in northeast quadrant of building. 4. Provide 3/a" supply line and one (1) water heater capable of providing 1.65 gpm at 120 degrees F continuous in northeast quadrant of building. 1. Provide heating and air-conditioning for office area utilizing existing unit. 2. Repair gas unit heater. 3. Provide natural gas line to tunnel wash machine and water pre-heater capable of providing 960,000 BTU's per hour for the tunnel wash, the water pre- heater and the existing unit heaters simultaneously. 1. Provide lighting and receptacles in office area. 2. Provide 250 AMP, 208 volt, 3 phase circuit for tunnel wash machine in the northeast quadrant of the building. GUARANTY OF LEASE GUARANTY made as of the R*O' day ofi°/L . 2003, by SUSAN A. TANDLE, an individual, having an office at 535 South Middlesex Road, Carlisle, Pennsylvania 17013 (the "Guarantor"). A. On even date herewith, McBride Properties (the "Landlord") has entered into a certain lease agreement (the "Lease") with ContainerBright, Inc. (the "Tenant") for certain premises located at 2410 Gettysburg Road, Camp Hill, Pennsylvania, all as more particularly described in the Lease. B. Guarantor desires that Landlord enter into the Lease with Tenant but Landlord would not have entered into the Lease with Tenant unless Guarantor had agreed to guaranty the obligations of Tenant under the Lease, all. as more fully set forth below. NOW, THEREFORE, in consideration of Landlord entering into the Lease with Tenant, one dollar in hand paid to Guarantor, and other good and valuable consideration, the receipt and sufficiency of all of which are hereby acknowledged, and intending to be legally bound, Guarantor covenants to and agrees with Landlord as follows: 1. Guarantor guarantees the full and faithful and punctual payment by Tenant of all rent, additional rent and other sums due under the Lease during the first twenty-six (26) months of the term of the Lease. Such 26-month period is referred to in this Guaranty as the "Term of this Cruarantv'j. Guarantor hereby becomes surety to Landlord for and with respect to all such obligations of Tenant during the Term of this Guaranty. If Tenant or its successors or assigns shall default (beyond any applicable cure periods set forth in the Lease) in the payment of any of the moneys which under the terms of the Lease Tenant is obligated to pay during the Term of this Guaranty, then Guarantor, without requiring any notice, except as otherwise provided in the Lease, of non-payment, or proof of notice or demand whereby to charge Guarantor therefor (all of which are hereby waived), will assume such obligation and will well and truly and at the time specified in said Lease pay to Landlord or any other person selected by Landlord all such moneys including minimum rent, operating expenses, taxes, additional rent, and other payments and charges set forth in the Lease, regardless of how denoted, and any arrears thereof that may at any time be due to the Landlord and which accrue during the Term of this Guaranty, and all damages, if any, for which Tenant, its successors or assigns, shall be liable in consequence of its default in such payment, together with all costs, reasonable attorney's fees and other expenses incurred by Landlord in enforcing the payment of the sums due under the Lease. Notwithstanding anything contained in this Guaranty, Guarantor's liability under this Guaranty shall not exceed (i) $16,000 on account of defaults by Tenant under the Lease occurring during the first fourteen (14) months of the Term of this Guaranty and (ii) $8,000 on account of defaults by Tenant under the Lease occurring during the remainder of the Term of this Guaranty. 2. This is an absolute and unconditional guaranty of payment and is a surety agreement. The liability of Guarantor under this Guaranty is primary and, at the option of Landlord, may be enforced directly against Guarantor before or after proceeding against Tenant without Landlord first asserting, prosecuting or exhausting any remedy against Tenant, its successors or assigns, or Guarantor may be joined in any action or proceeding commenced by Landlord against Tenant in connection with and based upon the Lease and recovery may be sought against Guarantor in such action or proceeding. 3. This Guaranty shall remain and continue in full force and effect as to any assignee of Tenant's interest in the Lease and any sublease of all or part of the premises demised under the Lease. 4. The validity of this Guaranty and the obligations of Guarantor hereunder shall in no way be terminated, affected or impaired by reason of, and Guarantor waives and agrees not to assert as a defense to any claim hereunder, any of the following: (a) any action which Landlord may take or fail to take against Tenant, or (b) any waiver of, or failure to enforce or delay in enforcing, any of the rights or remedies reserved to Landlord in the Lease, or otherwise, or (c) any changes, modifications or amendments that may be made in any of the terms, conditions, covenants or warranties of the Lease, any and all of which may be done without notice to Guarantor, or (d) any termination of the Lease prior to its stated expiration date. 5. Guarantor confirms that Guarantor is the holder of an equity in Tenant and an officer of Tenant, and will benefit from making this Guaranty on behalf of Tenant. 6. Neither Guarantor's obligation to make payment in accordance with the terms of this Guaranty nor any remedy for the enforcement thereof shall be impaired, modified, changed, released or limited in any manner whatsoever by any impairment, modification, change, release or limitation of the liability of the Tenant or its estate in bankruptcy for the enforcement thereof resulting from the operation of any present or future provision of the federal bankruptcy statutes or other statute or from the decision of any court. 7. All of Landlord's rights and remedies under the Lease and under this guaranty are intended to be distinct, separate and cumulative and no such right and remedy therein or herein mentioned is intended to be in exclusion of or a waiver of any of the others. No termination of the Lease or taking or recovering of the premises demised thereby shall deprive Landlord of any of its rights and remedies against Guarantor under this Guaranty. This Guaranty shall apply to Tenant's obligations pursuant to any amendment, modification and supplement of or to the Lease as well as to Tenant's payment obligations thereunder during the Term of this Guaranty in accordance with the original provisions thereof. 8. None of the obligations of Guarantor hereunder shall be affected in any manner by any impairment, modification, limitation, reduction or release of the obligations of Tenant under the Lease resulting from or relating to any provisions of or proceedings under the Federal Bankruptcy Code or any other federal or state law relating to bankruptcy, insolvency reorganization or arrangement or the decision of any federal, state or local court or the unenforceability of any provision of the Lease. In the event Tenant shall become insolvent or shall be adjudicated a bankrupt or shall file a petition for reorganization, arrangement or similar relief under the Federal Bankruptcy Code, or if Tenant shall seek a judicial readjustment of the rights of its creditors under any present or future federal, state or local law, or if a receiver of all or part of its property is appointed by any federal, state or local court, and in any such proceeding the Lease shall be terminated or rejected or the obligations of Tenant thereunder shall be modified, suspended or otherwise affected, then Guarantor shall upon demand of Landlord perform all obligations and pay all sums which Tenant would have been obligated to perform and to pay but for such proceedings. 9. The Guarantor hereby waives notice of acceptance of this Guaranty. 10. This Guaranty and the obligations of Guarantor hereunder shall be binding upon Guarantor, its personal representatives, heirs, successors and assigns and shall inure to the benefit of and be enforceable by Landlord, its successors, assigns and mortgagees: No assignment of this Guaranty by Guarantor shall release Guarantor from any liability hereunder. 11. This Guaranty shall be governed by the laws of the State of Pennsylvania, without regard for choice of law principles. For the purposes of any legal action or proceeding brought against Guarantor under this Guaranty, Guarantor irrevocably submits to the jurisdiction and venue of any state or Federal court located in the State of Pennsylvania. Guarantor acknowledges that venue in any such court shall be appropriate in any action brought under this Guaranty, and Guarantor irrevocably waives any objection that it might now or hereafter be entitled to make with respect to venue of any action arising out of or relating to this Guarantor which is brought in any such court, and Guarantor irrevocably waives any right to claim that any such action in any such court has been brought in an incorrect forum. 12. The terms of this Guaranty constitute a final expression of Guarantor's and Landlord's agreement with respect to the terms hereof and may not be contradicted by evidence of any prior or contemporaneous agreement, arrangement, understanding or negotiation (whether oral or written). Guarantor and Landlord further intend that this Guaranty constitutes the complete and exclusive statement of its terms, and no extrinsic evidence whatsoever may be introduced in any judicial proceedings involving this Guaranty. 13. GUARANTOR HEREBY WAIVES TRIAL BY JURY OF ANY AND ALL ISSUES ARISING IN ANY ACTIONS OR PROCEEDINGS BETWEEN THE PARTIES UPON, UNDER OR CONNECTED WITH THIS GUARANTY OR ANY OF ITS PROVISIONS, DIRECTLY OR INDIRECTLY, OR ANY AND ALL NEGOTIATIONS IN CONNECTION THEREWITH. IN WITNESS WHEREOF, Guarantor has caused this Guaranty to be duly executed, as a sealed instrument, the day and year first above written. By.'O M,A, (Seal) Susan C. Tandle Via FedEx August 19, 2003 Ms. Susan A. Tandle, President ContainerBright, Inc. 535 South Middlesex Road Carlisle, PA 17013 RE: CONTAINERBRIGHT, INC. AT 2410 GETTYSBURG ROAD, CAMP HILL, PA Dear Ms. Tandle: P R 0 P E R T Y T R U S T This letter shall serve as confirmation of your Rent Commencement date. The Township of Lower Allen issued a certificate of occupancy on June 13, 2003, at which time the space was deemed Substantially Complete. Therefore, in accordance with Section 3.1 of the Lease, the Rent Commencement date shall be August 13, 2003, or 2 months after space is delivered. Your prorated rents for August (19 of 31 days) are as follows: Base Rent $ 5,457.29 Insurance 113.39 Operating Expenses 322.39 Real Estate Taxes: 666.23 TOTAL DUE: $ 6,559.29 Total Received 10.696.00 Credit $ 4,136.71 Please pay your September rent in the amount of $6,559.29 so we can offset the $4,136.71 overpayment made for August. As stated in my letter dated April 2, rental payments are due and payable on the first of the month and should be made payable and mailed to McBride Properties, c/o Keystone Property Trust, 200 Four Falls Corporate Center, Suite 208, West Conshohocken, PA 19428, Tax ID #22-2448207. Please feel free to contact me at 484-530-1802 if you have any questions or I can be of further assistance. Sincerely, (? ? Lorraine Daly Lease Administrato /lbd c: Erin Mahoney Louis Cristinziani Elaine Mottilla KEY9ONE 200 Four Falls Corporate Center Phone: 484 530.1800 West Conshohocken, PA 19428 Fax : 484 530.0130 Web : www.keystoneprop&ty.com t Containerbright at 2404 Gettysburg Road Commencement Confirmation: 6/12103 Monthly Rent Days BRI $ 8,904.00 31 Pro Rated $ 185 113.39 $ 526 322.39 $ 1,087 666.23 OPEX $ 1,798 1,102.00 Commence Concession Due 12 $ 3,446.71 $ 5,457.29 19 $ 1,102 $ Due for Aug. $ 6,559.29 $ Pd for Aug. $ 10,696.00 CREDIT $ 4,136.71 . P KEY ONE PRO P E R T Y T R U S T April 21, 2003 Ms. Susan a. Tandle President ContainerBright, Inc. 535 South Middlesex Road Carlisle, PA 17013 RE: CONTAINERBRIGHT, INC. AT 2410 GETTYSBURG ROAD, CAMP HILL, PA Dear Ms. Tandle; Enclosed please find a fully executed Industrial Lease for the above referenced property. Upon substantial completion of construction, a Rent Commencement Letter will be forwarded to confirm the payment start date. Rental payments are due and payable on the first of the month and should be made payable and mailed to: McBride Properties c/o Keystone Property Trust 200 Four Falls Corporate Center, Suite 208 West Conshohocken, PA 19428 Tax ID #22-2448207 Please feel free to call me at 484530-1802 if you require additional information or if I can be of further assistance. On behalf of Keystone Property Trust, welcome to 2410 Gettysburg Road. We hope you enjoy your tenancy and look forward to a successful relationship. line , Daly Lease Administrator Enclosure c: Patrick McBride Elaine Mottilla 200 Four Falls Corporate Center Phone: 484 530.1800 West Conshohocken, PA 19428 Fax : 484 530.0130 Web : www.keystoneproperty.com VS/IU/03 15:11 FAX 484 530 0132 Keystone Property 10001 r_ Via Fed& August 19, 2003 Ms. Susan A. Tandle, President ContainerBright, Inc. 535 South Middlesex Road Carlisle, PA 17013 RE: CONTAWLRBRTGHT, INC. AT 2410 GETTYSBURG ROAD, CAMP HILL, PA Dear Ms. Tandle: d This letter shall serve as confirmation of your Rent Commencement date. The Township of Lower Allen issued a certificate of occupancy on June 13, 2003, at which time the space was deemed Substantially Complete. Therefore, in accordance with Section 3.1 of the Lease, the Rent Commencement date shall be August 13, 2003, or 2 months after space is delivered. Your prorated rents for August (19 of 31 days) are as follows: Base Rent $ 5,457.29 Insurance 113.39 Operating Expenses 322.39 Real Estate Taxes: 666.23 TOTAL DUE: $ 6,559.29 Total Received 10.696.00 Credit $ 4,136.71 Please pay your September rent in the amount of $6,559.29 so we can offset the $4,136.71 overpayment made for August. As stated in my letter dated April 2, rental payments are due and payable on the first of the month and should be made payable and mailed to McBride Properties, c/o Keystone Property Trust, 200 Four Falls Corporate Center, Suite 208, West Conshohocken, PA 19428, Tax ID #22-2448207. Please feel free to contact me at 484-530-1802 if you have any questions or I can be of further assistance. Sincerely, Lorraine Daly Lease Administrato /lbd c: Erin Mahoney Louis Cristinziani Blaine Mottilla 200 Four Falls Corporate Center Phone: 484 530.1800 West Conshohocken, PA 19428 Fax : 484 530.0130 Web : ww-w.kevsloneproperty.com KEY ONE P R 0 P E R T Y T R U S T " xti, bIf B BILL OF SALE AND ASSIGNMENT OF LEASES, CONTRACTS AND PERMI'T'S This instrument is executed and delivered as of the 4th day of August, 2004, in accordance with the transaction contemplated by that certain Agreement and Plan of Complete Liquidation and Dissolution (the "Plan of Liquidation"), dated as of the 4th day of August, 2004, by and among McBRIDE PROPERTIES, a New Jersey general partnership ("Grantor') and KEYSTONE OPERATING PARTNERSHIP, L.P., a Delaware limited partnership ("Grantee") covering the real property described in Exhibit A and on Exhibit B attached hereto, and all irn rovements thereto (the "Real Propert 1. Transfer of Personalty. For good and valuable consideration, the Grantor hereby assigns, transfers, sets over and conveys to the Grantee an undivided ninety nine percent (99%) interest in the following located on the Real Property described in Exhibit A and all (100%) of the following located on the Real Property described in Exhibit B (collectively, the "Personal Property"). (a) Tangible Personalty. All fixtures, furniture, equipment, and other tangible personal property, if any, owned by Grantor presently located on the Real Proper, but excluding any items of personal property owned by tenants, free from all liens, security interests and encumbrances. (b) Intangible Personals . All of Grantor's right, title and interest, if any, in and to all of the following items, to the extent assignable and, except as provided herein, free from all liens, security interests and encumbrances: (i) licenses, and permits relating to the operation of the Real Property, (ii) the right to use the name of the Real Property (if any) in connection with the Real Property, (iii) if still in effect, covenants, representations, indemnifications, guaranties and warranties received by Grantor from any Grantor, contractor, manufacturer or other person in connection with the acquisition, construction or operation of the Real Property, including, without limitation, all of the foregoing items described in any agreement or contract for the acquisition of the Real Property by Grantor ("Grantor Guaranties") and (iv) if any of the Grantor Guaranties are unassignable, the beneficial interest of Grantor in such Grantor Guaranties, to the extent the assignment of such beneficial interest does not void such Grantor Guaranties. If any of the Grantor Guaranties are unassignable, Grantor agrees, at Grantor' sole cost and expense, to use commercially reasonable efforts to enforce such Grantor- Guaranties. The Intangible Personal Property does not include any tradenames and trademarks of Grantor or any affiliate of Grantor. 2. Assignment of Leases and Contracts. For good and valuable consideration, Grantor hereby assigns, transfers, sets over and conveys to the Grantee, and the Grantee hereby accepts such assignment of, an undivided ninety nine percent (99%) interest in the following located on the Real Property described in Exhibit A and all (100%) of the following located on the Real Property described in Exhibit B (collectively the "Assigned Property"): (a) Leases. All of Grantor's right, title and interest, as landlord, in and to all executed ]cases and all amendments thereto (the "Leases") covering all or a portion of the Real Property and all cash and non-cash security deposits, and the Grantee hereby assumes all of Grantor' 5099541.2 0,1285409 obligations relating to all cash and non-cash security deposits conveyed hereby. In the event Grantor does not transfer any letters of credit, Grantor hereby agrees to apply such letters of credit on behalf of the Grantee in accordance with the applicable Lease. Grantor shall transfer such letters of credit as soon as reasonably practicable after the Closing. Grantor will indemnify, defend and hold the Grantee harmless from and against all demands and claims made by tenants arising out of any letters of credit or other security deposits not transferred to the Grantee and will reimburse the Grantee for any reasonable expenses (including all reasonable attorneys' fees) incurred or that may be incurred by the Grantee as a result of any such claims or demands by tenants. (b) Service Contracts. All of Grantor's right, title and interest in and to all executed service contracts and all amendments thereto (the "Service Contracts') covering all or a portion of the Real Property. 3. Assumption. The Grantee hereby assumes the obligations of Grantor under the Leases and Service Contracts and shall defend, indemnify and hold harmless Grantor from and against any liability, damages, causes of action, expenses, and attorneys' fees incurred by Grantor by reason of the failure of the Grantee to fulfill, perform, discharge, and observe its obligations with respect to the Leases or the Service Contracts. 4. Plan of Liquidation Applies. The terms and conditions of the Plan of Liquidation with respect to the property conveyed hereunder (including, without limitation, the limitations of liability provided in the Plan of Liquidation) are hereby incorporated herein by this reference as if herein set out in full and shall inure to the benefit of and shall be binding upon the Grantee and Grantor and their respective successors and assigns. 5. Disclaimer-. Except as set forth in the Plan of Liquidation, which provisions are hereby incorporated by this reference as if herein set out in full, the Personal Property and Assigned Property are conveyed by Grantor and accepted by the Grantee, AS IS, WHERE IS, AND WITHOUT ANY REPRESENTATIONS OR WARRANTIES OF WHATSOEVER NATURE, EXPRESS OR IMPLIED, IT BEING THE INTENTION OF GRANTOR AND THE GRANTEE EXPRESSLY TO NEGATE AND EXCLUDE ALL WARRANTIES, INCLUDING WITHOUT LIMITA'T'ION, THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR ANY PARTICULAR PURPOSE, WARRANTIES CREATED BY ANY AFFIRMATION OF FACT OR PROMISE OR BY ANY DESCRIPTION OF THE PROPERTY CONVEYED HEREUNDER, AND ALL OTHER REPRESENTATIONS AND WARRANTIES WHATSOEVER CONTAINED IN OR CREATED BY THE UNIFORM COMMERCIAL CODE OF THE STATE OR STATES WHERE THE REAL PROPERTY IS LOCATED. [signatures on following page] 50!19-541.2 0428409 2 IN WITNESS WHEREOF, the undersigned have caused this Bill of Sale and Assignment of Leases, Contracts and Permits to be executed as of the date written above. GRANTEE: KEYSTONE OPERATING PARTNERSHIP, L.P., a Delaware limited partnership By: Keystone Property Trust, a Maryland real estate investment trust, its sole general partner By: Name: Edward S. Nekritz Title: Managing Director GRANTOR: MCBRIDE PROPERTIES, a New Jersey general partnership By: Keystone Property Trust, a Maryland real estate investment trust, its managing general partner By. x. 3 Name: Edward S. Nekritz Title: Managing Director 5049541.2 04285409 EXHIBIT B 2400, 2404, 2410 GI? fTYSI3URG ROAD PREMISES "A" ALL THAT CERTAIN tract or parcel of land situate in the Township of Lower Allen Township, County of Cumberland, Commonwealth of Pennsylvania, as shown on ALTAIACSM Land Title Survey for 2400, 2404 and 2410 Gettysburg Road, Camp Hill, PA 17011, prepared by Hartman and Associates, Engineers and Surveyors, dated 12/10/97, last revised 3/24/98, more particularly bounded and described as follows, to wit: BEGINNING at a point on the northern legal right-of-way line of Gettysburg Road S.R. 2014 at the dividing line between Premises "A" herein described and Premises "B"; thence along the northern legal right-of-way line of Gettysburg Road S.R. 2014 South 80 degrees 36 minutes 17 seconds West a distance of 247.45' feet to a point at the dividing line between Premises "A and Premises "C"; thence along the dividing line between Premises "A" and Premises "C" North 15 degrees 31 minutes 30 seconds West a distance of 2.58.71' feet to a point at the dividing line between Premises "A", "B", and "C"; thence along the dividing line between Premises "A" and Premises "C" North 75 degrees 08 minutes 30 seconds East a distance of 249.33' feet to a point; thence continuing along the same South 14 degrees 51 minutes 30 seconds East a distance of 282.25' to a point on the northern legal right-of-way line of Gettysburg Road S.R. 2014, said point being the place of BEGINNING. CONTAINING: 67,011.92 S.T. or 1.5384 Acres PREMISES "B" ALL THAT CERTAIN tract or parcel of land situate in the Township of Lower Allen, County of Cumberland, Commonwealth of Pennsylvania, as shown on the ALTA/ACSM Land Title Survey for 2400, 2404 and 2410 Gettysburg Road, Camp Hill, PA 17011, prepared by Hartman and Associates, Engineers and Surveyors, dated 12/10/97, last revised 3/24/98, more particularly bounded and described as follows, to wit: BEGINNING at a point on the northern legal right-of-way line of Gettysburg Road S.R. 2014 at the dividing line between the herein described tract and lands now or late of The Municipal Authority of the Borough of Lemoyne; thence along the northern legal right- of-way line of Gettysburg Road S.R. 2014 South 56 degrees 14 minutes 00 seconds West a distance of 55.38' feet to a point; thence continuing along the same South 67 degrees 20 minutes 00 seconds West a distance of 71.23' feet to a point; thence continuing along the same South 76 degrees 47 minutes 00 seconds West a distance of 100.41' feet to a point; 5049541.2 04285409 thence continuing along the same South 79 degrees 1.7 minutes 11 seconds West a distance of 167.0.5' feet to a point at the dividing line between Premises "A" and Premises "B" herein described; thence along the dividing line between Premises "A" and Premises "B" North 14 degrees 51 minutes 30 seconds West a distance of 282.2.5' feet to a point; thence continuing along the same South 75 clegrees 08 minutes 30 seconds West a distance of 249.33' feet to a point at the dividing line between Premises "A", "B", and "C"; thence along the dividing line between Premises "B", Premises "C", lands reputed to be now or fate of Summit Corporation and lands now or late of AMP Incorporated respectively North 15 degrees 31 minutes 30 seconds West a distance of 647.69' feet to a point; thence along the dividing line between Premises "B" herein described and said lands of AMP Incorporated North 40 degrees 11 minutes 00 seconds East a distance of 160.60' feet to a point on the southern line of lands of Consolidated Rail Corporation (formerly Penn Central Railroad); thence along said lands of Consolidated Rail Corporation North 74 degrees 41 minutes 00 seconds East a distance of 485.54' feet to a point at the dividing line between Premises "B" herein described and lands now or late of Eastern Consolidated and Distribution Services, Inc.; thence along the dividing tine between Premises "B" and said lands of Eastern Consolidated and Distribution Services, Inc., South 41 degrees 15 minutes 00 seconds West a distance of 117.13' feet to a point; thence continuing along the same South 12 degrees 59 minutes 00 seconds East a distance of 164.11' feet to a point; thence continuing along the same and along lands now or late of Joseph J. Spera and Alex Grass South 14 degrees 06 minutes 00 seconds East a distance of 249.70' feet to a point; thence continuing along the dividing line between Premises "B" and said lands of Joseph J. Spera and Alex Grass South 14 degrees 22 minutes 59 seconds East a distance of 183.15' feet to a point at lands now or late of Salvatore 1. and Phyllis R. Accardi; thence along the dividing line between Premises "B" and said lands of Accardi South 43 degrees 57 minutes 00 seconds East a distance of 353.36' feet to a point; thence continuing along the same South 09 degrees 58 minutes 00 seconds East a distance of 31.32' feet to a point on the northern legal right-of-way line of Gettysburg Road S.R. 2014; thence along the northern legal right-of-way line of Gettysburg Road S.R. 2014 South 56 degrees 14 minutes 00 seconds West a distance of 19.97' feet to a point at lands now or late of The Municipal Authority of the Borough of Lemoyne; thence along the dividing line between Premises "B" herein described and said lands of The Municipal Authority of the Borough of Lemoyne the following (12) twelve courses: 1) North 51 degrees 37 minutes 40 seconds West a distance of 22.82' feet to a point. 2) North 42 degrees 08 minutes 40 seconds West a distance of 388.08' feet to a point. 3) South 47 degrees 51 minutes 20 seconds West a distance of 10.00' feet to a point. 4) South 35 degrees 05 minutes 09 seconds East a distance of 30.31' feet to a point. 5) South 47 degrees 51 minutes 20 seconds West a distance of 16.28' feet to a point. 5049541.2 04285409 6) South 42 degrees 08 minutes 40 seconds East a distance of 115.00' feet to a point. 7) North 47 degrees 51 minutes 20 seconds East a distance of 2.04' feet to a point. 8) South 35 degrees 05 minutes 09 seconds East a distance of 97.94' feet to a point. 9) South 47 degrees 51 minutes 20 seconds West a distance of 60.00' feet to a point. 10) South 42 degrees 08 minutes 40 seconds East a distance of 75.00' feet to a point. 11) North 47 degrees 51 minutes 20 seconds East a distance of 90.00' feet to a point. 12) South 42 degrees 08 minutes 40 seconds East a distance of 91.28' feet to a point on the northern legal right-of-way line of Gettysburg Road S.R. 2041 said point being the place of BEGINNING. CONTAINING 469,000.79 S.F. or 10.7668 Acres PREMISES "C" ALL THAT CERTAIN tract or parcel of land situate in the Township of Lower Allen, County of Cumberland, Commonwealth of Pennsylvania, as shown on the ALTA/ACSM Land Title Survey for 2400, 2404 and 2410 Gettysburg Road, Camp Hill, PA 17011, prepared by Hartman and Associates, Engineers and Surveyors, dated 12/10/97, last revised 3/24/98, more particularly bounded and described as follows, to wit: 1EGINNING at a point on the northern legal right-of-way line of Gettysburg Road S.R. 2014 at the dividing line between Premises "C" herein described and Premises "A"; thence along the legal right-of-way line of Gettysburg Road S.R. 2014 South 80 degrees 36 minutes 17 seconds West a distance of 116.85' feet to a point; thence continuing along the same South 81 degrees 37 minutes 45 seconds West a distance of 1.46.24' feet to a point at the dividing line between the herein described tract and and now or late of AMP Incorporated; thence along the dividing line between the herein described tract and said lands of AMP Incorporated North 15 degrees 19 minutes 00 seconds West a distance of 521.69' feet to a point; thence continuing along the dividing line between the herein described tract, lands of AMP Incorporated and also lands reputed to be now or late of Summit Corporation North 75 degrees 00 minutes 00 seconds East a distance of 259.40' feet to a point at the dividing line between the herein described tract, Premises "B" and said lands reputed to be Summit Corporation; thence along the dividing line between the herein described tract, Premises "B" and also Premises "A" South 15 degrees 31 minutes 30 seconds East a distance of 550.00' feet to a point on the northern legal right-of-way line of Gettysburg Road S. R. 2014, said point being the place of BEGINNING. CONTAINING 139,667.13 S.F. or 3.2063 Acres 5049541.2 0428;409 c C C,l VIA OVERNIGHT PRIORITY MAIL July 14, 2006 Ms. Susan Tandle Containerbright, Inc. 2410 Gettysburg Road Camp Hill, PA 17011 NOTICE AND DEMAND The Tenant, Containerbright, Inc., is in default under that certain Lease Agreement, dated April 11, 2003 (the "Lease"), concerning the premises at the address commonly known as 2410 Gettysburg Road, Camp Hill, PA (the "Premises"). The Tenant's defaults consist of the following items: Failure to Pay Rent and Other Charges as shown below and abandonment of the lease premises. The total amount due from Tenant to the Landlord under the Lease as of the date hereof is $28,799.89. This sum consists of the following items: Month Amount 1. Late Fees: Late Charges per 5.2 of the lease $ 1,371.42 2. Base Rent and other MAY, June 2006 and 2005 Common Area Maint. $27,428.77 charges: Reconciliation TOTAL AGGREGATE AMOUNT OWED $28,799.89 DEMAND IS HEREBY MADE upon the Tenant to pay the Total Aggregate Amount Owed. The Tenant is further notified that unless all monetary defaults stated above are cured within five (5 days after the date of service of this Notice and Demand, the Landlord hereby elects to terminate the Tenant's right of possession in and to the Premises without terminating the Tenant's liability and obligations under the Lease, and Tenant's right of possession in and to the Leased Premises is hereby terminated as of and upon the expiration of said five (5) day period. Page 2 July 14, 2006 Containberbright Default Letter Unless the Total Aggregate Amount Owed is paid within five (5) days demand is hereby made upon the Tenant to surrender possession of the Premises immediately upon the expiration of said five (5) day period. ONLY FULL PAYMENT OF THE TOTAL AGGREGATE AMOUNT OWED WILL WAIVE THE LANDLORD'S RIGHT TO TERMINATE THE TENANT'S RIGHT OF OBLIGATIONS UNDER THE LEASE AND UNDER THIS NOTICE AND DEMAND, UNLESS THE LANDLORD EXPRESSLY AGREES, IN WRITING, TO CONTINUE THE TENANT'S RIGHTS OF POSSESSION IN EXCHANGE FOR RECEIVING PARTIAL PAYMENT. Name: Sally A. Hutchinson Title: Authorized Representative Copy to: Matthew Eshelman Gates, Halbruner and Hatch, P.C 1013 Mumma Road, Suite 100 Lemoyne, PA 17043 S c h n a d e r A T T O R N E Y S AT LAW 1600 MARKET STREET SUITE 3600 PHILADELPHIA, PA 19103-7286 215.751.2000 PAX 215.751.2205 schnader.com Michael J. Barre Direct Dial 215-751-2529 Direct Fax 215-972-7669 E-mail: mbarrie@schnader.com VIA CERTIFIED MAIL. RETURN RECEIPT REQUESTED Susan Tandle, President ContainerBright, Inc. 2410 Gettysburg Road Camp Hill, PA 17011 July 31, 2006 Re: Leased Premises: 2410 Gettysburg Road Camp Hill, Pennsylvania Landlord: Prologis Six Rivers Limited Partnership, with respect to its Cimmaron Business, a Delaware services limited partnership Tenant: ContainerBright, Inc. Dear Ms. Tandle: We represent your landlord ("Landlord") under that certain Agreement of Lease dated as of April 11, 2003 ("Lease") and by and between Landlord and ContainerBright, Inc. ("Tenant") for the leased premises referenced above ("Premises"). NOTICE OF CONTINUED DEFAULT IS HEREBY GIVEN under the Lease for Tenant's failure to pay certain amounts due as of July 14, 2006 in the aggregate amount of $28,799.89 (the "Arrearage"), as more specifically set forth in Landlord's Notice and Demand of July 14, 2006 (true and correct copy of which is enclosed for your reference). In light of your failure to cure the Arrearage, please take further NOTICE that, pursuant to Section 19.2.2 of the Lease, the Lease shall remain in effect and Tenant shall continue to be responsible for all obligations due to Landlord thereunder. Landlord hereby reserves its rights to exercise any and all of the other remedies available to Landlord under the Lease, as well as any other remedies available to Landlord at law or in equity to collect not only the Arrearage, but all other amounts due and/or becoming due under the Lease as well as reasonably attorneys' fees and costs. NOTICE is further given that, in light of the security and physical risks to the Premises, caused by Tenant having unilaterally abandoned same, Landlord has exercised its right to enter to inspect, secure, protect and preserve the Premises pursuant to the terms and conditions of the Lease. Specifically, Landlord intends to inspect the Premises for damage and perform emergency repairs, if required, with respect to, inter alia, water systems, electrical lines, alarm systems and the HVAC system. To further secure, protect and preserve the Premises, Landlord Schnader Harrison Segal & Lewis LLP PHDATA13832161 NEW YORK PEN NSYLYANIA CALIFORNIA WASHINGTON, DC NEW JERSEY DELAWARE S c h n a d e r ATTORNEYS AT LAW Ms. Susan Tandle, President July 31, 2006 Page 2 has or intends to change the locks and/or secure access to the Premises. Should you require access to the Premises, please notify the undersigned in writing, either by email, facsimile or regular mail, and instructions for access will be provided to you. While under no obligation to do so under the Lease, Landlord is also attempting to mitigate the Tenant's damages that it has suffered, continues to suffer, and will suffer in the future as a result of Tenant's defaults. Nothing herein, nor any action taken by a Landlord in furtherance hereof, shall be construed as an act constituting acceptance by Landlord of your abandonment of the Premises so as to constitute surrender of the Premises or a termination of the Lease. To the contrary, Landlord continues to hold you responsible for performance of all of your obligations under the Lease, in accordance with paragraph 19.2.2 of the Lease. Should you have any questions regarding this notice, please have your counsel contact the undersigned at the above-listed address and telephone number. Very truly yours, ichael J. Barrie For SCHNADER HARRISON SEGAL & LEWIS LLP Enclosure cc: Barry E. Bressler, Esquire Matthew Eshelman, Esquire (via facsimile) P14DATA 13932161 Schnader Harrison Segal & Lewis «r t 1 `1 VERIFICATION I, Sally Hutchinson, subject to the penalties of 18 Pa.C.S. § 4904, hereby verify that: (a) I am employed as Regional Property Manager of an affiliate of ProLogis Six Rivers Limited Partnership, plaintiff in the above-captioned action and, as such, am authorized by the plaintiff to issue this verification on its behalf; (b) The facts set forth in the foregoing Complaint in Confession of Judgment in Ejectment are true and correct to the best of my knowledge, information, and belief; and (c) The Exhibits attached to the Complaint in Confession of Judgment in Ejectment are true and correct copies of the originals. ??L 11 1 Sally H chinson 7 PHDATA 13924152 J -sj ,7j -+3 BARRY E. BRESSLER, ESQ. (Pa. Att'y I.D. No. 09868) MICHAEL J. BARRIE, ESQ. (Pa. Att'y I.D. No 85625) SCHNADER HARRISON SEGAL & LEWIS LLP 1600 Market Street, Suite 3600 Philadelphia, PA 19103 (215) 751-2000 (telephone) (215) 751-2205 (facsimile) Attorneys for ProLogis Six Rivers Limited Partnership PROLOGIS SIX RIVERS LIMITED PARTNERSHIP, a Delaware limited partnership, 4900 Ritter Road, Suite 150 Mechanicsburg, PA 17055 Plaintiff, V. CONTAINERBRIGHT, INC., a Pennsylvania corporation, 2410 Gettysburg Road Camp Hill, PA 17011 Defendant. COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - Law NO. 016 _ 4.2rt3 PRAECIPE ENTRY OF JUDGMENT TO THE PROTHONOTARY: Clu ? cc-T" Please enter judgment against Defendant ContainerBright, Inc. in favor of Plaintiff ProLogis Six Rivers Limited Partnership. Dated: October 24, 2006 Barr) ?ressler, Esquire (Pa. Att'y No. 09868) Michael J. Barrie, Esquire (Pa. Att'y No. 85625) 1600 Market Street, Suite 3600 Philadelphia PA 19103 (215) 751-2000 Attorneys for the Plaintiff, ProLogis Six Rivers Limited Partnership PHDATA 14009631 C C= rt : i c '> J 1'C t BARRY E. BRESSLER, ESQ. (Pa. Att'y I.D. No. 09868) MICHAEL J. BARRIE, ESQ. (Pa. Att'y I.D. No 85625) SCHNADER HARRISON SEGAL & LEWIS LLP 1600 Market Street, Suite 3600 Philadelphia, PA 19103 (215) 751-2000 (telephone) (215) 751-2205 (facsimile) Attorneys for ProLogis Six Rivers Limited Partnership PROLOGIS SIX RIVERS LIMITED ) COURT OF COMMON PLEAS PARTNERSHIP, a Delaware limited ) OF CUMBERLAND COUNTY, partnership, ) PENNSYLVANIA 4900 Ritter Road, Suite 150 ) Mechanicsburg, PA 17055 ) CIVIL ACTION - Law viii. Plaintiff, j NO .O( [u `? 6 l ) CONTAINERBRIGHT, INC., a ) Pennsylvania corporation, ) 2410 Gettysburg Road ) Camp Hill, PA 17011 ) Defendant. ) AFFIDAVIT CERTIFYING ADDRESSES COMMONWEALTH OF PENNSYLVANIA COUNTY OF DAUPHIN ss. I, Sally Hutchinson, being duly sworn in accordance with the law, hereby depose and say: (a) I am employed as Regional Property Manager of an affiliate of ProLogis Six Rivers Limited Partnership, the plaintiff in the above-captioned action and, as such, am authorized by the plaintiff to issue this affidavit on its behalf. PHDATA 13924152 -+ Gst 'j t Orn e -W. BARRY E. BRESSLER, ESQ. (Pa. Att'y I.D. No. 09868) MICHAEL J. BARRIE, ESQ. (Pa. Att'y I.D. No 85625) SCHNADER HARRISON SEGAL & LEWIS LLP 1600 Market Street, Suite 3600 Philadelphia, PA 19103 (215) 751-2000 (telephone) (215) 751-2205 (facsimile) Attorneys for ProLogis Six Rivers Limited Partnership PROLOGIS SIX RIVERS LIMITED ) COURT OF COMMON PLEAS PARTNERSHIP, a Delaware limited ) OF CUMBERLAND COUNTY, partnership, ) PENNSYLVANIA 4900 Ritter Road, Suite 150 ) Mechanicsburg, PA 17055 ) CIVIL ACTION - Law Plaintiff, ) NO. b(, L X. ) CONTAINERBRIGHT, INC., a ) Pennsylvania corporation, ) 2410 Gettysburg Road ) Camp Hill, PA 17011 ) Defendant. ) AFFIDAVIT OF FACT THAT INSTRUMENT CONTAINING WARRANT OF ATTORNEY WAS NOT PART OF CONSUMER-CREDIT TRANSACTION COMMONWEALTH OF PENNSYLVANIA COUNTY OF DAUPHIN ss. I, Sally Hutchinson, being duly sworn in accordance with the law, hereby depose and say: PHDATA 1392415_2 e '+.. (a) I am employed as Regional Property Manager of an affiliate of ProLogis Six Rivers Limited Partnership, the plaintiff in the above-captioned action and, as such, am authorized by the plaintiff to issue this affidavit on its behalf. (b) Based upon my personal knowledge (or upon my information and belief), I hereby confirm that the lease executed by the defendant (containing the warrant of attorney pursuant to which judgment for ejectment is being confessed herein) did not arise as part of a consumer-credit transaction. Sally Hu chinson Sworn to and subscribed before me thiso-&"day of October, 2006. M. Notary Public My Commission Expires: a a p O 9 COMMONWEALTH OF PENNSYLVANIA Notarial Seal Beth M. Yorlets, Notary Public Upper Allen Twp., Cumberland County My Commission Expires Feb. 23, 2008 Member, Pennsylvania Associadon of Notaries 2 PHDATA 13924152 r? `. , F J 1 i' - . 17- '? y BARRY E. BRESSLER, ESQ. (Pa. Att'y I.D. No. 09868) MICHAEL J. BARRIE, ESQ. (Pa. Att'y I.D. No 85625) SCHNADER HARRISON SEGAL & LEWIS LLP 1600 Market Street, Suite 3600 Philadelphia, PA 19103 (215) 751-2000 (telephone) (215) 751-2205 (facsimile) Attorneys for ProLogis Six Rivers Limited Partnership PROLOGIS SIX RIVERS LIMITED PARTNERSHIP, a Delaware limited partnership, 4900 Ritter Road, Suite 150 Mechanicsburg, PA 17055 Plaintiff, lx. CONTAINERBRIGHT, INC., a Pennsylvania corporation, 2410 Gettysburg Road Camp Hill, PA 17011 Defendant. CIVIL ACTION - Law COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. ?- ?2•`3 01 L '. ? AFFIDAVIT OF COMMERCIAL TRANSACTION AND OF THE FACT THAT THE LEASE DOES NOT CREATE A RETAIL INSTALLMENT SALE OR ACCOUNT COMMONWEALTH OF PENNSYLVANIA COUNTY OF DAUPHIN ss. I, Sally Hutchinson, being duly sworn in accordance with the law, hereby depose and say: PHDATA 13924152 a (a) I am employed as Regional Property Manager of an affiliate of ProLogis Six Rivers Limited Partnership, the plaintiff in the above-captioned action and, as such, am authorized by the plaintiff to issue this affidavit on its behalf. (b) Based upon my personal knowledge (or upon my information and belief), I hereby confirm that (i) the lease upon which the judgment for ejectment is confessed in this matter arises out of a commercial transaction and not a personal transaction, and (ii) the lease does not constitute a retail-installment-sales contract or account. CA Sally Flchinson Sworn to and subscribed before me thisao-ilday of October, 2006. M-jw" Notary Public My Commission Expires: a a 3?a OC?3 COMMONWEALTH OF PENNSYLV Notarial Seal Bern M. Yorlets, Notary Public Upper Allen Twp., Cumberland County My Commission Expires Feb. 23, 2008 Ma ,ber, Pennsylvania Ass;oclatlon of Notaries 2 PHDATA 13924152 - ?f: M BARRY E. BRESSLER, ESQ. (Pa. Att'y I.D. No. 09868) MICHAEL J. BARRIE, ESQ. (Pa. Att'y I.D. No 85625) SCHNADER HARRISON SEGAL & LEWIS LLP 1600 Market Street, Suite 3600 Philadelphia, PA 19103 (215) 751-2000 (telephone) (215) 751-2205 (facsimile) Attorneys for ProLogis Six Rivers Limited Partnership PROLOGIS SIX RIVERS LIMITED PARTNERSHIP, a Delaware limited partnership, 4900 Ritter Road, Suite 150 Mechanicsburg, PA 17055 Plaintiff, xt. CONTAINERBRIGHT, INC., a Pennsylvania corporation, 2410 Gettysburg Road Camp Hill, PA 17011 Defendant. COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - Law NO. -6L - /- -2121 3 el . Cj AFFIDAVIT OF NON-MILITARY SERVICE COMMONWEALTH OF PENNSYLVANIA COUNTY OF LEHIGH ss. I, Sally Hutchinson, being duly sworn in accordance with the law, hereby depose and say: PHDATA 13924152 .46 (a) I am employed as Regional Property Manager of an affiliate of ProLogis Six Rivers Limited Partnership, the plaintiff in the above-captioned action and, as such, am authorized by the plaintiff to issue this affidavit on its behalf. (b) Based upon my personal knowledge (or upon my information and belief), I hereby aver that the defendants is not in the military service of the United States, or of any state or territory thereof, as defined by the Soldiers and Sailors Civil Relief Act of 1940, as amended. Sally Hut inson Sworn to and subsc bed before me this may of October, 2006. Notary Public My Commission Expires: P_ a3-ao°'b CO ONWEALTH OF PENNSYLVANIA Notarial Seal Beth M. Yorlets, Notary Public Upper Allen IWp., Cumberland County My Commission Expires Feb. 23, 2008 Member, Pennsylvania ftsociatlon of Notaries 2 PHDATA 13924152 F 1. _= ._ y .... {-':- Fn 'd..t l BARRY E. BRESSLER, ESQ. (Pa. Att'y I.D. No. 09868) MICHAEL J. BARRIE, ESQ. (Pa. Att'y I.D. No 85625) SCHNADER HARRISON SEGAL & LEWIS LLP 1600 Market Street, Suite 3600 Philadelphia, PA 19103 (215) 751-2000 (telephone) (215) 751-2205 (facsimile) Attorneys for ProLogis Six Rivers Limited Partnership PROLOGIS SIX RIVERS LIMITED PARTNERSHIP, a Delaware limited partnership, 4900 Ritter Road, Suite 150 Mechanicsburg, PA 17055 Plaintiff, xii. CONTAINERBRIGHT, INC., a Pennsylvania corporation, 2410 Gettysburg Road Camp Hill, PA 17011 Defendant. COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. .904. - 4.;Z Z3 CIVIL ACTION - Law CERTIFICATE OF SERVICE I certify that I have caused a true and complete copy of the complaint in confession of judgment filed herein, and of all the papers filed in connection therewith to be served via first-class mail, postage pre-paid, upon the defendant addressed as follows: ContainerBright, Inc. 2410 Gettysburg Road Camp Hill, PA 17011 with a copy to: Matthew J. Eshelman, Esq. Gates Halbruner & Hatch, P.C. PHDATA 13924153 / v, 10 13 Mumma Road, Suite 100 Lemoyne, PA 17043 Respectfully submitted, y . Bressler, Esquire tt'y No. 09868) Michael J. Barrie, Esquire (Pa. Att'y No. 85625) 1600 Market Street, Suite 3600 Philadelphia PA 19103 (215) 751-2192 Attorneys for the Plaintiff Dated: October 24, 2006 4 PHDATA 13924153 "n. BARRY E. BRESSLER, ESQ. (Pa. Att'y I.D. No. 09868) MICHAEL J. BARRIE, ESQ. (Pa. Att'y I.D. No 85625) SCHNADER HARRISON SEGAL & LEWIS LLP 1600 Market Street, Suite 3600 Philadelphia, PA 19103 (215) 751-2000 (telephone) (215) 751-2205 (facsimile) Attorneys for ProLogis Six Rivers Limited Partnership PROLOGIS SIX RIVERS LIMITED ) COURT OF COMMON PLEAS PARTNERSHIP, a Delaware limited ) OF CUMBERLAND COUNTY, partnership, ) PENNSYLVANIA 4900 Ritter Road, Suite 150 ) Mechanicsburg, PA 17055 ) CIVIL ACTION - Law Plaintiff, ) NO. 6L -4..Z.?3 ?lvL V. ) CONTAINERBRIGHT, INC., a ) Pennsylvania corporation, ) 2410 Gettysburg Road ) Camp Hill, PA 17011 ) Defendant. ) NOTICE UNDER RULE 2958.1 OF JUDGMENT AND EXECUTION THEREON NOTICE OF DEFENDANT'S RIGHTS TO: ContainerBright, Inc. 2410 Gettysburg Road Camp Hill, PA 17011 A judgment for possession of real property has been entered against you and in favor of the Plaintiff without any prior notice or hearing based on a confession of judgment contained in a written agreement or other paper allegedly signed by you. The sheriff may remove you from the property at anytime 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 being removed from the property. YOU MUST FILE A PETITION SEEKING RELIEF FROM THE JUDGMENT WITHIN THIRTY (30) DAYS AFTER THE DATE ON WHICH THIS NOTICE IS SERVED ON YOU OR YOU MAY LOSE YOUR RIGHTS. IN ADDITION, A DEBTOR WHO HAS BEEN INCORRECTLY IDENTIFIED AND HAD A CONFESSION OF JUDGMENT PHDATA 14009611 "I ENTERED AGAINST HIM OR HER MAY PETITION THE COURT FOR COSTS AND REASONABLE ATTORNEY'S FEES AS DETERMINED BY THE COURT. YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW. THIS OFFICE CAN PROVIDE YOU WITH INFORMATION ABOUT HIRING A LAWYER. IF YOU CANNOT AFFORD TO HIRE A LAWYER, THIS OFFICE MAY BE ABLE TO PROVIDE YOU WITH INFORMATION ABOUT AGENCIES THAT MAY OFFER LEGAL SERVICES TO ELIGIBLE PERSONS AT A REDUCED FEE OR NO FEE. CUMBERLAND COUNTY BAR ASSOCIATION 32 SOUTH BEDFORD STREET CARLISLE, PA 17013 1-800-990-9108 717-249-3166 hael J. Barrie, Esquire (Pa. Att'y No. 85625) 1600 Market Street, Suite 3600 Philadelphia PA 19103 (215) 751-2000 Attorneys for the Plaintiff Dated: October 24, 2006 2 PHDATA 14009611 r' tM C Ln t Y r, .3 Ca °G BARRY E. BRESSLER, ESQ. (Pa. Att'y I.D. No. 09868) MICHAEL J. BARRIE, ESQ. (Pa. Att'y I.D. No 85625) SCHNADER HARRISON SEGAL & LEWIS LLP 1600 Market Street, Suite 3600 Philadelphia, PA 19103 (215) 751-2000 (telephone) (215) 751-2205 (facsimile) Attorneys for ProLogis Six Rivers Limited Partnership PROLOGIS SIX RIVERS LIMITED ) COURT OF COMMON PLEAS PARTNERSHIP, a Delaware limited ) OF CUMBERLAND COUNTY, partnership, ) PENNSYLVANIA 4900 Ritter Road, Suite 150 ) Mechanicsburg, PA 17055 ) CIVIL ACTION - Law Plaintiff, NO. OL - G;z V. ) CONTAINERBRIGHT, INC., a ) Pennsylvania corporation, ) 2410 Gettysburg Road ) Camp Hill, PA 17011 ) Defendant. ) NOTICE TO: ContainerBright, Inc. 2410 Gettysburg Road Camp Hill, PA 17011 Pursuant to Rule 236 of the Supreme Court of Pennsylvania, you are hereby notified that a Judgment has been entered against you in the above proceeding as indicated below. Judgment by Default Money Judgment Judgment in Replevin X Judgment for Possession Judgment on Award of Arbitration Judgment on Verdict Judgment on Court Findings PHDATA 14009851 If you have any questions concerning this notice, please call: Attorney Michael J Barrie Esquire at this telephone number: (215) 751-2529 PHDATA 14009851 BARRY E. BRESSLER, ESQ. (Pa. Att'y I.D. No. 09868) MICHAEL J. BARRIE, ESQ. (Pa. Att'y I.D. No 85625) SCHNADER HARRISON SEGAL & LEWIS LLP 1600 Market Street, Suite 3600 Philadelphia, PA 19103 (215) 751-2000 (telephone) (215) 751-2205 (facsimile) Attorneys for ProLogis Six Rivers Limited Partnership PROLOGIS SIX RIVERS LIMITED ) COURT OF COMMON PLEAS PARTNERSHIP, ) OF CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff, ) CIVIL ACTION - Law V. ) NO. 06-6223 CIVIL TERM CONTAINERBRIGHT, INC. ) Defendant. ) PRAECIPE FOR WRIT OF POSSESSION To the Prothonotary: Kindly issue writ of possession upon the judgment in ejectment entered by confession in the above-captioned civil action for possession of the premises located at 2410 Gettysburg Road, Camp Hill, Pennsylvania. CERTIFICATION I certify that: (1) This praecipe is based upon a judgment entered by confession, and (2) Notice pursuant to Rule 2973.2 has been served at least thirty days prior to the filing of this praecipe as evidenced by a certificate of service of record. PHDATA 14099931 Dated: December 8 2006 arry E. Bressler, Esquire (Pa. Att'y No. 09868) Michael J. Barrie, Esquire (Pa. Att'y No. 85625) 1600 Market Street, Suite 3600 Philadelphia PA 19103 (215) 751-2192 Attorneys for the Plaintiff 2 PHDATA 14099931 BARRY E. BRESSLER, ESQ. (Pa. Att'y I.D. No. 09868) MICHAEL J. BARRIE, ESQ. (Pa. Att'y I.D. No 85625) SCHNADER HARRISON SEGAL & LEWIS LLP 1600 Market Street, Suite 3600 Philadelphia, PA 19103 (215) 751-2000 (telephone) (215) 751-2205 (facsimile) Attorneys for ProLogis Six Rivers Limited Partnership PROLOGIS SIX RIVERS LIMITED ) COURT OF COMMON PLEAS PARTNERSHIP, ) OF CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff, ) CIVIL ACTION - Law V. ) NO. 06-6223 CIVIL TERM CONTAINERBRIGHT, INC. ) Defendant. ) CERTIFICATE OF SERVICE I certify that on December 8, 2006, I caused a true and complete copy of the foregoing Praecipe for Writ of Possession to be served via first-class mail, postage pre-paid, upon the defendant addressed as follows: ContainerBright, Inc. 2410 Gettysburg Road Camp Hill, PA 17011 with a copy to: Matthew J. Eshelman, Esq. Gates Halbruner & Hatch, P.C. 1013 Mumma Road, Suite 100 Lemoyne, PA 17043 PHDATA 14099931 Dated: December 8, 2006 y E. Bressler, Esquire (Pa. Att'y No. 09868) Michael J. Barrie, Esquire (Pa. Att'y No. 85625) 1600 Market Street, Suite 3600 Philadelphia PA 19103 (215) 751-2192 Attorneys for the Plaintiff 4 PHDATA 14099931 n -ttL. ? ?' -art 4Q. 70 C c j h N 10 0 WRIT OF POSSESSION (Ejectment Proceedings PRCP3160-3165 etc IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA PROLOGIS SIX RIVERS LIMITED PARTNERSHIP VS. No. 06-6223 Civil Term CONTAINERBRIGHT, INC. Costs Attorney's $ 34.50 Plaintiff s $ Prothonotary $ 1.00 COMMONWEALTH OF PENNSYLVANIA: COUNTY OF CUMBERLAND: To the Sheriff of Cumberland County, Pennsylvania (1) To satisfy the judgment for possession in the above matter you are directed to deliver possession of the following described property to: (Plaintiff (s)) PROLOGIS SIX RIVERS LIMITED PARTNERSHIP being: (Premises as follows): 2410 GETTYSBURG ROAD, CAMP HILL, PA (2) To satisfy the costs against the defendant (s) you are directed to levy upon any property of the defendant (s) and sell his/her (or their) interest therein. 0A # 4a 9 C s R. Long onota , Common Net Court of berland County, PA Date DECEMBER 11, 2006 (Seal) THE COPY FROM RECORD %T ?whcrR?" , ^T.,,? ose<myh S9 Of PA I -day ?tI1810?L3C1? A. 2of2 No 06-6223 Civil Term IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA PROLOGIS SIX RIVERS LIMITED PARTNERSHIP VS. CONTAINERBIRGHT, INC. WRIT OF POSSESSION P.R.C.P. 3160-3165 ETC. Costs Att'y $ 34.50 Plff (s) $ Prothy $ 1.00 Sheriff $ Plaintiff (s) attorney name and address: BARRY E. BRESSLER, ESQUIRE SCHNADER HARRISON SEGAL & LEWIS LLP 1600 MARKET STREET, SUITE 3600 PHILADELPHIA, PA 19103 215-751-2000 I.D.# 09868 Attorney for Plaintiff (s) Where papers may be served By virtue of this writ, on the day of I caused the within named , to have possession of the premises described with the appurtenances, and Sworn and subscribed to before me this Day of Prothonotary So Answers, Sheriff By Deputy of - 4WZA3 R. Thomas Kline, Sheriff, who being duly sworn according to law, states this Writ is returned Expired. Sheriff's Costs: Advance Costs: 150.00 Sheriff's Costs 55.08 Docketing 18.00 94.92 Poundage 1.08 Advertising Law.Library Prothonotary 1.00 Refunded to Atty on 08/13/08 Mileage 15.00 Misc. Surcharge 20.00 Levy Post Pone Sale Certified Mail Postage Garnishee / TOTAL 55.08 ? $ jQ d$ So Answers; l1 1Z. T ine, r By 0 S Z :E d S 1 330 9001 .Y ct`4 / g qjs R'- -21J20 7 2of2 No 06-6223 Civil Term IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA PROLOGIS SIX RIVERS LIMITED PARTNERSHIP vs. CONTAINERBIRGHT, INC. WRIT OF POSSESSION P.&C.P.3160-3165 ETC. Costs Attorney for Plaintiff (s) Where papers may be served By virtue of this writ, on the day of . I caused the within named , to have possession of the premises described with the appurtenances, and Att'y $ 34.50 Plff (s) $ Prothy $ 1.00 Sheriff $ Plaintiff (s) attorney name and address: BARRY E. BRESSLER, ESQUIRE SCHNADER HARRISON SEGAL & LEWIS LLP 1600 MARKET STREET, SUITE 3600 PHILADELPHIA, PA 19103 215-751-2000 I.D.# 09868 Sworn and subscribed to before me this Day of , Prothonotary So Answers, Sheriff By Deputy 1 of 2 WRIT OF POSSESSION (Ejectment Proceedings PRCP3160-3165 etc.) IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA PROLOGIS SIX RIVERS LIMITED PARTNERSHIP VS. No. 06-6223 Civil Term CONTAINERBRIGHT, INC. Costs Attorney's $ 34.50 Plaintiff's $ Prothonotary $ 1.00 COMMONWEALTH OF PENNSYLVANIA: COUNTY OF CUMBERLAND: To the Sheriff of Cumberland County, Pennsylvania (1) To satisfy the judgment for possession in the above matter you are directed to deliver possession of the following described property to: (Plaintiff (s)) PROLOGIS SIX RIVERS LIMITED PARTNERSHIP being: (Premises as follows): 2410 GETTYSBURG ROAD, CAMP HILL, PA (2) To satisfy the costs against the defendant (s) you are directed to levy upon any property of the defendant (s) and sell his/her (or their) interest therein. C R. LongKjhonotaW, Common Pleas Court of COnberland County, PA Date DECEMBER 11, 2006 (Seal)