HomeMy WebLinkAbout01-03131
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IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
CROWN AMERICAN PROPERTIES, L.P.,
by Crown American Realty Trust, its
General Partner
Plaintiff,
v.
No. 01 - 3/3/
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cyberXpo.com, Inc.,
Defendant.
Civil Action - Law
NOTICE TO DEFEND
You have been sued in Court. If you wish to defend against the claims set forth in the
following pages, you must take action within twenty (20) days after this Complaint and notice
are served, by entering a written appearance personally or by attorney and filing in writing with
the Court your defenses or objections to the claims set forth against you. You are warned that if
you fail to do so the case may proceed without you and a judgment may be entered against you
by the Court without further notice for any money claimed in the Complaint or for any other
claim or relief requested by the Plaintiff. YOU MAY LOSE MONEY OR PROPERTY OR
OTHER RIGHTS IMPORTANT TO YOU.
YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO
NOT HAVE A LAWYER OR CANNOT AFFORD ONE, GO TO OR TELEPHONE THE
OFFICE SET FORTH BELOW TO FIND OUT WHERE YOU CAN GET LEGAL HELP.
Lawyer Referral Service of
The Cumberland County Bar Association
The Cumberland County Bar Center
2 Liberty Avenue
Carlisle, Peunsylvania 17013
Telephone No. (800) 990-9108
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A VISO
USTED HA SillO DEMANDADO EN LA CORTE. Si usted desea defenderse de las
quejas expuestas en las paginas siguientes, debe tomar acci6n dentro de veinte (20) dias a partir
de la fecha en que recibi6 la demanda y el aviso. Usted debe presentar comparecencia escrita en
persona 0 por abogado y presentar en la Corte por escrito sus defensas 0 sus objeciones alas
demandas en su contra.
Se Ie avisa que si no se defiende, el caso puede proceder sin usted y la Corte puede
decidir en su contra sin mas aviso 0 notificaci6n por cualquier dinero rec1amado en la demanda 0
por cualquier otra queja 0 compensaci6n rec1amados por el Demandante. USTED PUEDE
PERDER DINERO, 0 PROPIEDADES U OSTROS DERECHOS IMPORTANTES PARA
USTED.
LLEVE ESTA DEMANDA A UN ABOGADO INMEDIATAMENTE. SI USTED NO
TIENE 0 NO CONOCE UN ABOGADO, VA Y A 0 LLAME A LA OFICINA EN LA
DIRECCION ESCRITA ABAJO PARA A VERIGUAR DONDE PUEDE OBTENER
ASISTENCIA LEGAL.
Lawyer Referral Service of
The Cumberland County Bar Association
The Cumberland County Bar Center
2 Liberty Avenue
Carlisle, Pennsylvania 17013
Telephone No. (800) 990-9108
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IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYL VANIA
CROWN AMERICAN PROPERTIES, L.P.,
by Crown American Realty Trust, its
General Partner
Plaintiff,
v.
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No. 0 t. 3/3/ UP"-" .u...
cyberXpo.com, Inc.,
Defendant.
Civil Action - Law
COMPLAINT
AND NOW, TO WIT, this 11s~
day of May, 2001, comes the Plaintiff, Crown
American Properties, L.P., by its General Partner Crown American Realty Trust, by its attorneys,
CGA Law Firm (Countess Gilbert Andrews P.C.), and files the following Complaint:
1. Plaintiff, Crown American Properties, L.P., by its General Partner Crown
American Realty Trust, is a business trust organized and licensed to conduct business in the
Commonwealth of Pennsylvania, having a business address of Pas que rill a Plaza, Johnstown, P A
15907-0879 (hereinafter "Plaintiff').
2. Defendant, cyberXpo.com Inc., is a corporation having a last known business
address of 102 Decker Court, Suite 203, Irving, Texas 75062 (hereinafter "Defendant").
3. On or about June 29, 2000, Plaintiff contracted with Defendant to provide
Defendant with a license permitting Defendant to install and operate an Internet kiosk at a
specified location within the Capital City Mall, said mall located at 3506 Capital City Mall
Drive, Camp Hill, Pennsylvania. A true and correct copy of the license agreement is attached
hereto and incorporated herein by reference as Exhibit "A" (hereinafter "License Agreement").
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4. In consideration of the license provided to Defendant by Plaintiff pursuant to the
License Agreement, Defendant agreed to pay Plaintiff a fixed minimum license fee of Three
Thousand Three Hundred Thirty-Three and 00/100 ($3,333.00) Dollars per month.
COUNT ONE - BREACH OF CONTRACT
5. Plaintiff reiterates paragraphs one through four of its Complaint and incorporates
same herein as though more fully set forth.
6. Defendant has failed to make its minimum license fee payment of Three
Thousand Three Hundred Thirty-Three and 00/100 ($3,333.00) Dollars to Plaintiff for the
months ofJanuary, February, March, April, and May of2001.
7. Plaintiff notified Defendant of its default under the License Agreement by a
notice of default letter dated February 21,2001. A true and correct copy of said notice of default
letter is attached hereto and incorporated herein by reference as Exhibit "B".
8. Defendant's failure to pay its minimum license fee to Plaintiff as described above
constitutes a breach of contract.
9. As a result of Defendant's breach of contract Plaintiff has suffered damages,
including the following:
a. Sixteen Thousand Six Hundred Sixty-Six and 651100 ($16,666.65) Dollars
representing the fixed minimum license fee payments for the months of
January, February, March, April, and May of2001;
b. Interest at the statutorily prescribed rate from the time that payment was
withheld after it became the duty of Defendant to make such payment.
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WHEREFORE, Plaintiff respectfully requests that this Honorable Court enter judgment
in its favor and against Defendant in an amount not exceeding the arbitration limit of this
jurisdiction, plus interest, attorney's fees, and any other relief this Honorable Court sees fit to
award.
COUNT TWO - UNJUST ENRICHMENT
10. Plaintiff reiterates paragraphs one through nine of its Complaint and incorporates
same herein as though more fully set forth.
11. Defendant received a License from Plaintiffto operate an Internet kiosk in the
Capital City Mall pursuant to the License Agreement.
12. Defendant operated and benefited from the Internet kiosk for the months of
January, Febroary, March, April, and May of2001, while failing to pay its minimum license fee
for those months.
13. As a result of Defendant's actions, it has been unjustly enriched by operating its
Internet kiosk without making payments to Plaintiff for the license to do so.
14. As a result of Defendant's unjust enrichment, Plaintiff has suffered damages,
including the following:
a. Sixteen Thousand Six Hundred Sixty-Six and 65/100 ($16,666.65) Dollars
representing the fixed minimum license fee payments for the months of
January, Febroary, March, April, and May of2001;
b. Interest at the statutorily prescribed rate from the time that payment was
withheld after it became the duty of Defendant to make such payment.
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WHEREFORE, Plaintiff respectfully requests that this Honorable Court enter judgment
in its favor and against Defendant in an amount not exceeding the arbitration limit of this
jurisdiction, plus interest, attorney's fees, and any other relief this Honorable Court sees fit to
award.
COUNTESS GILBERT ANDREWS
s,~
By:
Craig S. ametzka, Esquire
Supreme Court J.D. 83863
29 North Duke Street
York, PA 17401
(717) 848-4900
Attorneys for Plaintiff
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MAY-I 6-01 11:07
FROIHRO\IIN AMER I CAN
8145359343
T-779 P. 07/07 F-422
.
VERIFICATION
I, the undersigned, Martin Nadorlik, Real Estate Counsel and Director of Lease
Administration of Crown American Realty Trost, sole General Partner of Crown American
Properties, L. P., hereby affirms that the facts contained in the foregoing Complaint are true and
correct to the best of my knowledge, information and belief. This statement is made subject to
the penalties provided under 18 Pa. C. S. ~ 4904 relating to unsworn falsifications to authorities.
CROWN AMERICAN PROPERTIES, L. P.
by CROWN AMERICAN REALTY
TRUST, its Sole General Panner
BY:~
Martin NadorIik
Real Estate Counsel
Director of Lease Administration
Dated: Mav 16. 2001
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LICENSE AGREEMENT
THIS LICENSE AGREEMENT made as of the ;2 9 day of L ..-L . 2000, by and between
CROWN AMERlCA1'f PROPERTIES, L.P., a Delaware Limited Partnership,~rown American Realty Trust, its General
Partner, with its principa) offices located at Pasquerilla Plaza, Johnstown, Pennsylvania 15907 (hereinafter refem:d to as
"Licensor") and e.'lRW,81mS, IUS., b..ding as cyberXpo.com, with an address of 733 Winter Street, North Andover, MA
01845, (hereinafter referred to as "Licensee"), which said parties, in consideration of the undertakings and commitments of each
party to the other party as set forth herein, hereby mutually agree as follows:
I. License. Pursuant to the terms, provisions and conditions herein contained, Licensor hereby grants to
Licensee for the temi hereinafter set forth a License to install and operate an internet kiosk at the location designated below
(hereinafter referred to as the "Premises" or "Demised Premises") at the Capital City Mall, 3506 Cljpital City Mall Drive,
Camp Hill, Pennsylvania, ("Shopping Center"), together with the joint use of the common area facilities therein.
2. Size of Premises. The size of the Premises is five feet (5') in width, twelve feet and one-half inches (12'
112") in length and eight feet five inches (8' 5") in height.
3. Location. The location of the Demised Premises is as depicted as being shaded in red on Exhibit "B"
attached hereto and made a part hereof.
4. Tenn. This License is granted to Licensee by the Licensor for five (5) Years. commencing on th~ earlier to
occur of: (i) when Licensee opens for business in the Premises; or (ii) July IS, 2000, whether or not Licensee is open for
business ("Tenn Commencement Date").
5. Fixed Minimum Rent Licensee shall pay to Licensor a guaranteed annual minimum rent ("Fixed Minimum
Rent") as follows: The Fixed Minimum Rent for each of the following periods during the tenn of this License shall be:
Time Period
Annual Amount
Monthlv Amount
Year 1-5 "II. 1U - '~,m!.BJ. '3 '3 ~
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Each such installment shall be due and payable on or before the first day of each calendar month in the of this
License, in advance, at the office of Licensor or at such other place as may be designated by Licensor from time to time, wit!>out
any prior demand therefor and without any deduction or setoff whatsoever, the first installment to be paid on the commencement
date whether or not the commencement date is the first day of a calendar month. In the event that the commencement date of the
tenn of this License shall be a day other than the first day of a calendar month, Licensee's first payment of Fixed Minimum Rent
shall be prorated for the fractional month between the commencement date and the first day of the first full call"'dar month in the
tenn hereof, on a per diem basis (calculated on a thirty [301 day month).
SEE RIDER
6. Percenta2e Rent. In addition to the Fixed Minimum Rent ,as aforesaid, Licensee. in accordance with this
paragraph six (6) of this License, shall pay to Licensor, as additional rent hereunder (hereinafter referred to as "Percentage
Rent"), and as part of the consideration of the aforesaid demise, for the tenn of this License a sum equal 10 ten percent (10%) of
all Gross Sales generated through the efforts of Licensee and Licensee shall pay to licensor a sum equal to fifty percent (50"10) of
the Gross Sales generated through the efforts of Li,"'''t'(as defined on Exhibit "C", attached hereto) during the tenD of this
License. (,"-CN.)C(
(a) The Percentage Rent shall be payable without prior demand and without any setoff or deduction
whatsoever at the times set forth hereinafter at the place then fixed for the payment of Fixed Minimum Rent.
(h) No later than thirty (30) days after the expiration of each quarter of the tenn hereof, Licensee shall
pay to Licensor the Percentage Rent due.
(c) No later than the thirtieth (30") day after the end of each calendar quarter in the tenn hereof,
Licensee shall submit to Licensor an itemized and accurate written statement signed by Licensee, its duly authorized officer or
duly authorized representative, rellecting the full amount of Gross Sales made during the preceding calendar quarter. If the
commencement date hereof shall not be the first day of a calendar month, the period between the commencement date and the
first day of the first full calendar month in the tenn and Licensee's Gross Sales during such period shall be added to the first
calendar month for both the purpose of the computation of Percentage Rent and the purpose of reporting of Gross Sales.
D:\Legal\JobnNJR\licease agrccmnets\Cyberxpo 5-19..00 (Cap).dot
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(d) Not later than the date set forth in subparagraph (b) hereof, Licensee shall submit to Licensor a
complete written statement of Licensee's Gross Sales in such reasonable detail as requested by Licensor, certified by Licensee, its
duly authorized officer or representative stating that the Gross Sales reported by Licensee are in accord with the amount thereof
set forth on Licensee's regularly maintained books and records. Simultaneously with the delivery of the statement referred to in
the preceding sentence, Licensee shall pay to Licensor the full unpaid balance of the statement referred to in the preceding
sentence, Licensee shall pay to Licensor the full unpaid balance of the Percentage Rent due and payable.
(e) The acceptance by Licensor of payments of Percentage Rent or reports thereof shall be without
prejudice, and shall in no event constitute a waiver of Licensor's rights to claim a deficiency of such Percentage Rent or to audit
Licensee's books and records.
this Lease.
(t) Licensee's obligations under this Paragraph Six (6) shall survive the expiration or earlier tennination of
7. Use of Premises. Licensee shall use the leased premises solely for the purpose of conducting the
business of: an internet kiosk with computer terminals, plasma based television monitors and plasma based advertising
signage designed to provide access to the internet for the primary purpose which shall include and be limited to the
following: (1) games (2) e-mail (3) video conferencing (4) digital photographs for electronic transmittal and (5) the sale of
plasma based electro'nic advertising and dynamic video and multi-media advertising through its terminals, television
monitors and signage (provided, in DO event shall advertising or signage be displayed in a static mode or placed on rolling
screens of any kind) and the incidental sale of internet services, web access and e-commerce (all of which will be limited in
content and time for non-competitive uses to be pre-approved by Landlord), and for no otber purpose wbatever..
Licensee represents and warrants that it shall continuously operate the internet kiosk so that it is available for the use of
merchants and patrons of Mall during all regular business hours of the Mall as detennined by Licensor from time to time or such
additional hours as agreed upon between Licensor and Licensee. Without limiting the foregoing, Licensee agrees that the
internet kiosk will be fully operational not less than 95% of all regular business hours of the Centers, with all core service
features having a response time of five (5) seconds or less, except during periods of unanticipated interruptions of utility service,
or other circumstances beyond Licensee's reasonable control, in which even~ Licensee shall use its best commercially reasonable
efforts to minimize the impact of such lapse or interruption of service,
Licensee represents and warrants that it will indemnifY, defend and hold Licensor (including its lender, property
manager and general partners) harmless from any claim, suit or proceeding brought against Licensor, its affiliates, subsidiaries,
agents, or the employees, officers or customers of each of them for alleged paten~ copyright or trademark infringement and
related claims, including, but not limited to, trade secret appropriation, unfair competition and/or interference with prospective
advantage, resulting from the services furnished by Licensee hereunder. Licensor shall give Licensee notice in writing of any
such claim, suit or proceeding brought against Licensor. The indemnification, defense and hold hannless provided herein
includes court costs and attorneys' fees arising out of or resulting froJJ'such claim, suit. or proceeding.
8. Cost ofSecurilv. Licensor may elect, but shall not be required, to provide security for the Shopping Centef.
9. [ndemnilv and Insurance. Licensee agrees to indemnifY and hold Licensor hannless from any and all loss,
damage, claims, suits and expense resulting from acts or omissions of Licensee's employees while acting within the course and
scope of their employment or otherwise resulting directly from the operation of Licensee's business in the Premises. Licensee
further agrees to maintain in effect public liability insurance covering its liability for death of or injury to persons, or damage to
property, arising out of or connected with the operation of its business, with limits for bodily injury liability of $1,000,000 for
each occurrence, and limits for property damage liability of $1,000,000 for each occurrence and $~OOO,OOO in the aggregate.
Licensor shall be named as an additional insured under such policies, and Licensee shall furnish Licensor with a certificate from'
the insurer evidencing the existence of such insurance.
10. Risk of Loss or Dama2e. Each ofthe parties hereto assumes all risk of loss, damage or destruction of or to its
property located in the Shopping Center in which the Premises are located by any cause whatsoever, unless the same shall be
caused by the willful act, omission or neglect of the other party or its agents or employees while acting within the course and
scope of their employment.
11. AssismmentlSublet. Licensee's privileges hereunder shall not be assignable by Licensee in whole or in part
and Licensee shall not sublet the whole or any part of the Premises, and/or the right to operate its kiosks.
12. Utilities. Licensee shall be responsible for paying all costs of installation of the internet kiosk, the hook-up
and installation of electric service, phone service if needed, the installation of aT-tUne, and cell repeaters in the shopping center
if necessary for Licensee's operation.
D:\Legal\JohnNJR\license agreemnets\Cyberxpo 7-3-00 (FSK).doc
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. 13. CoI1l"Ii.nce with RewIRlinns. Li........ ogrces to comply with 011 roles and rcgu\aIions JlIO'l>'.IP'"" by
LIC:e?"or to ~ovem the .ShoppiDg Center In which the Pnlmiscs are located, after notice th~ Li........ rep'_ eml wmrants
that It. shall install, operate and maintain 8 conteDl monitoring software program (such as net nanny) cIesJ&ned to I'CSIrlct access to
any SIte which includes (8) advertising for illega1 drugs or any illicit products which may not 1ega1ly be sold within the
municipality, county, or Sl1lte In which the MaIlls located and (b) material which contains or depicts any mailer which could be
considered obscene, inunotal or offensive (m the Owner's sole discretion) to the shoppers. guests or patrons of the Mall eml (cO
shall not permit advertising for or In connection with pornography, tobacco, alcohol products, adult entertainment, issues of
social, religious or political controversy (such as animal right, reproductive rights or abortion) and (cI} shall not pennit
advertising of any compctiug shopping center or mall.
14. TerminRlion and Relocation. IfLi........ shall fail to comply with or abide by each and all of the provisions
hereof and keep all and sittguIar Licensee's promises herein, Licensor shall provide 8 ten (10) day written notice of del8ult sent
ovemight or Express delivery Iiom 8 nationally know delivery service. Upon Licensee's failure to timely cure said defiwlt,
Licensor may, at its option, terminate the License granted herein by providing a termination notice stating the effective ~ of
termination (Termination Date). Licensor at its cost and expense shall have the right upon thirty (30) days prior written notice to
Licensee, to relocate Licensee's kiosk within the shopping center. In the event that Licensee fails or refuses to accept the new
location within thirty (30) days of said notice, Landlord at its option, may terminate this License upon thirty (30) days written
notice sent ovemight or Express delivery to Licensee.
15. Conf""";on of 'udement in Eiectment. When this License shall be tenninated or cancelled by reason of the
breach of any provision hereof or the Existing Lease and also as soon as the License hereby granted shall be tenninated, it shall
be lawful for any attorney as attorney for Licensor to file an agJeeIIIent for entering in any court of competent jurisdiction an
amicable action and confession of judgment in ejectment against Licensee for the recovery by Licensor of possession of the
Premises for which this License Agreement or a lnle and correct copy thereof shall he his sufficient wanant, whereupon, if
Licensor so desires, a writ of possession may issue forthwith.
16. Sumnder of Premises. On revocation, sunender or other termination of the License hereby given or the
Existing Lease, Licensee shall quietly and peaceably surrender the portion of the Premises occupied by Licensee in as good
condition as same were at the time of Licensee's enlIy thereon hereunder and shall remove all fixtures, equipment, eml other
things placed by Licensee on the Premises hereunder and, if Licensee shall fail to do so, Licensor shall have the right to make
such removal at Licensee's expense, the amount of which expense Licensee shall pay to Licensor on demand and, if Licensor
shall so elect, it shall have the right to take possession of and appropriate to itself without payment therefor any property of
Licensee, or anyone claiming under it, then remaining o'n the Premises.
17. Holdine Over. Should Licensee hold over in possession of the demised premises after the expiration of the
term hereof without the execution of a new license agJeeIIIent or extension or renewal agJeeIIIent, Licensee, at the option of
Licensor, shall be deetned to he occupying the demised premises Iiom month to month, subject to such occupaney being
tennin.ted by either party upon at least thirty (30) days' written notice, at the rental, including, but not limited to, Fixed
Minimum Rent computed at a rate which is double the Fixed Minimum Rent rate in effect for the last full mbnth of tlte term of
this License, Percenllllle Rent, and additional rent all calculated, Iiom time to time, as though the term of this License had
continued and otherwbe subject to all of the other tenDS, covenants and conditions of the License insofar as the same may be
applicable to a month to month tenancy.
18. Suitabilitv of Premises.
(a) Licensee has inspected the premises and ogrces to accept the premises in an "as is" condition.
Licensee is responsible !9J,.a11 j;!>sts ~.It\V2'k as required to make the space suitable for the use permitted in the foregoiDg
License, p~t l? th~'"'Pfo~{ont ornxtG.f)it "An, attached hereto. 1 Itt.. ~.diflCl Jl:i..}~ln& unteit1.~ ift Euiihit .~};.~ ttl the.
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FAl""'''$lt if an~' ~1F'i1. Clw8IS. IR 'fs"hllll. ill Gnkilit "!.".
(b) Licensee covenants and ogrces not to make or pennit to he made any alterations, improvements and
additions to tlte demised premises or any part thereof except by and with the written consent of Licensor first had. All
alterations, improvements and additions to said premises shall he made in accordance with all applicable laws and shall at once
when made or installed by deemed to have attached to the freehold and to have become the property of Licensor and shall remain
for tlte benefit of Licensor at the end of the term or other expiration of this License in as good order and condition as they were
when installed, reasonable wear and tear exeepted.
(c) In making such alterations, additions and improvements to the demised premises and in installing
such chattels, equipment and fixtures or doing such other work, Licensee shall promptly pay all contractors and materialmen so
as to minimize the possibility of 8 lien attaching to the demised premises or the Shopping Center, and Licensee shall include in
all contracts and subcontracts for work to be perfonned on Licensee's behalf at the demised premises provisions wherein such
contractor or subenntractor acknowledges that Licensor has no liability under such contracts and subcontracts and that such
contractor or subcontractor waives any right it may have to lien or attadt Licenso(s parcel or the Shopping Center of which
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Licensors parcel is a part, and should any such lien be made or filed, LiCCDSCC sball bond against or discharge the same wilbin
~ly(2O) days after wriltCD request by Licensor. If LiCCDSCC sball 6IiI to cause such lien to be bonded against or to be
discbarged within the period aforesaid, then, in addition to any other right or rancdy which Licensor may have under this Lease,
at law or in equily, Licensor may, but sbaII not be obligated to, discharge the same either by paying the amount claimed to be due
or by procuring the discharge of such lien by deposit or by bonding p..........;.p and, in any such event, Licensor sbaII be
entitled, if Licensor so elects, to compel the prosecution of any lIl:Iion for the foreclosure of such lien by the lienor with inteRst,
costs and expenses, Any amount so paid by Licensor and all costs and expenses incurred by Licensor in connection therewith,
together with interest thereon at the highest rate permitted by law from the respective dates ofLiCCllS01's making of the payment
and incurring of the cost and expense, shall constitute additional mil payable by LiCCIISCC under this License and sbaII be paid by
Licensee to Licensor on demand.
19. No PartnelSbiD. Licensor does not, in any way or for any purpose, become a partner of Liceosee in the
conduct of its business, or othenvise, or joint venturer or a member of a joint enterprise with Licensee.
20. Notices. All payments of rent and any and all other monetary obligations of Licensee a=uing hereunder,
whether or not denoted as rent, shall be paid to Licensor or its agent at the address set forth berein, until LiCCIISCC is notified
otbenvise in writing, and all notices given to Licensor ben:under shall be in writing and forwarded to it at such addn:ss, postage
prepaid, by registered or cenified mail, return receipt requested, or prepaid by any nationally recognized express or overnight
mail delivery service which provides proof of receipt. All notices to Licensee shall be forwarded to it at the address set forth
berein, until Licensor is notified otherwise in writing, by postage prepaid, registered or certified mai~ return receipt requested, or
prepaid by any nationally recognized express or overnight mail delivery service which provides proof of receipt, or by delivery in
penIOn and in the event of a delivery in person, the affidavit of the penIOn making such delivery shall be conclusive proof of the
delivery and of the dale and time ofsucb delivery. All notices sbaII be deemed to have been given on the dBle when deposited in
the mail receptacles maintained by the corporalion which bas been chartered by the United States Government to operate and
deliver the mail, deposited with the express or overnight mail service as aforesaid or, in the case of notices delivered in person to
Licensee, when so delivered. Notices by the Licensor may be given on its behalf by Agent or by any attomey for Licensor or
Agent.
2 L Estoooel Certificate: Subordination: Attornment:
(a) Execution ofEstoDoel CertificBle. At any time, and from time to time, upon the wriltCD request of
Licensor or any mortgagee of Licensor, Licensee, within twenly (20) days of the dBte of such wriltCD request, agrees to execute
and deliver to Licensor and/or such mortgagee, without charge and in a fonn satisfactory to Licensor and/or such mortgagee, a
written statement: (a) ratifying this License; (b) confinning the commencement and expiration dates of the tenD of this License;
(c) cenifying that Licensee is in occupaney of the demised pmnises, and that the License is in full force and effect and has not
been modified, assigned, supplemented or amended except by such writinp as shall be stBted; (d) certifying that all conditions
and agreements under this License to be satisfied or perfunned by Licensor have been satisfied and performed except as shall be
stated; (e) cenifying that Licensor is not in default under the License and there are no defenses or offsets against the enforcement
of this License by Licensor, or stating the defaults and/or defenses claimed by Licensee; (f) reciting the amouiit of advance rent,
if any, paid by Licensee and the date to which such rent has been paid; (g) reciling the amount of securily deposited with
Licensor, if any; (h) certifying compliance with the environmental covenants of the License as set forth in Paragraph 23 of the
License Agreement; and (i) any other infonnation which Licensor or the mortgagee shall require.
(b) Failure to Execute EstoDnel Certificate. The failure of Licensee to execute, acknowledge and
deliver to Licensor and/or any mortgagee a statement in accordance with the provisions of Paragraph A above within the period
set forth in Paragraph A shall constitute an acknowledgment by Licensee which may be relied upon by any penIOn holding or
intending to acquire any interest whatsoever in the demised premises or the Shopping Center that this License has not been
assigned, amended, changed or modified, is in full force and effect and that the Fixed Minimum Rent, Utility Charge, and
additional rent have been duly and fully paid not beyond the respective due dBleS immediBtely preceding the dBte of the request
for such statement and shall constitute as to any persons entitled to rely on such statements a waiver of any defaults by Licensor
or defenses or offsets against the enforcement of this License by Licensor wbich may exist prior to the dBle of the wriltCD request,
and Licensor, at its option, may treat such failure as an event of default.
(c) Subordination and Attornment. Licensee agrees (a) that, except as hereinafter provided, this
License is, and all of Licensee's rights hereunder are and shall always be, subject and subordinate to any mortgage, leases of
Licensors property (in sale-leaseback) pursuant to which Licensor has or shall retain the right of possession of the demised
premises or security instruments (collectively called "Mortgage") that now exist, or may bereafter be placed upon the demised
premises or the Shopping Center or any part thereof and to all advances made or to be made thereunder and to the interest
thereon, and all renewals, replacements, modifications, consolidations, or extensions thereof; and (b) that if the bolder of any
such Mortgage ("Mortgagee"), the purchaser at any foreclosure sale or at any sale under a power of sale contained in any
Mortgage, or the owner, at the time of the hereinafter described request, of the fee estate or the leasehold estate of the real eslale
upon which the demised premises is situate (hereinafter referred to as Licensor for purposes of this Section) shall at its sole
option so request, Licensee will attorn to, and recognize such Mort~ purchaser, or Licensor, as the case may be, as Ucensor
under this License for the balance then remaining of the tenn of this License, subject to all terms of this License; and (c) that the
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aforesaid provisions shall be self operative and no further instrument or dOCUl1lClll sbaJl be nCCCSSll1}' unless required by any such
~ ~urchaser, or U~r. Notwlth"'nd;ng anything to the COIlInIry set forth above, any Mortgagee may 01 any time
subonliDatc Its Mortgage to Ibis Uccnse, without Uc:cnscc's consent, by cxccution of a writtaI document subordinatiDg such
Mortgage to Ibis License to 1he extent set forth thcIein,and thcmJpon Ibis Lease sbaII be dccmcd prior to such Mortgage to the
extent set forth it! sueb written document without regard to their IapCCtivc dates of execution, delivery and/or reconliog and
it!1hat event, to the extent set forth it! sueb written dOCUl1lClll such Mortgagee sbaJl have the same rights with n:spcct to Ibis
License as though this License had been executed and a memorandum thereof recorded prior to the cxccution, delivery and
recording of the Mortgage and as though this License had been assigned to such Mortgagee. Should Liccnsor. or any Mortgagee
or purcbaser desire confirmation of either sueb subordination or sueb attommcnt, as the c:ase may be, Uccosec upon written
request, and from time to time, will cxccute and clcliver without cbarge and in fonn satisW:to1}' to Uccnsor, the Mortgagee or the
purcbaser all ~ts and/or documents 1hat may be requested to edcnowlcdge such subordination and/or ogrccment to
attorn, in recordable form.
22. N.....fion ofPcrsonal Liabilitv. Notwithstanding anything contained herein to the contrary, Licensee agr=
1hat Liccnsor sball have no personal liability with respect to any of the provisions of Ibis License Agreement and Licensee sbaJl
look solely to the estate and property ofLiccnsor in the land and buildings comprising the Shopping Center of whieb the demised
premises forms a part for the satisfaction of Liccnscc's remedies, including, without limitation, the collection of any judgment or
the enforcement of any other judicial process requiring the payment or expenditure of money by Liccnsor in the event of any
default or bn:acb by Licensor with respect to any of the terms and provisions of this License Agrccmcnt to be observed and/or
performed by Licensor, subject, however, to the prior rights of any holder of BIlY Mortgage covering all or part of the Shopping
Center, and no other assets of Licensor or any principal of Liccnsor shall be subject to levy, execution or other judicial process
for the satisfaction of Licensee's claim and, in the event Licensee obtains ajudgment against Licensor, the judgment docket sbaJl
be so noted. This Section sbaJl inure to the benefit of Licensors successors and assigns BIld their respective principals. .
The references to "Licensor" in this Liccnsc Agrccmcnt sbaJl be limited to mean and include only the owner of the
Shopping Center of which the Premises forms a part. In the event of a sale or transfer of sueb interest (except a Mortgage or
other transfer), the transferor, as of the date of such transfer, sbaJl be automatically released from all liability for the performance
or observBllce of BIlY term, condition, covenant or obligation required to be performed or observed by Licensor hereunder;
BIld the transfcrcc sbaJl be deemed to have assumed all of sueb terms, conditions, covenBllts BIld obligations except as to pre-
existing defaults by Licensor. The covenBllts BIld obligations contained in this License Agreement to be performed On the part of
"Licensor" sbaJl be binding on the Licensor or any transferor only during the periods in whieb it is a Licensor hereunder. The
name BIld designation Crown American Realty Trust is the IIlIIIIC of the Trust BIld the collective designation of the Trustees from
time to time under the Declaration of Trost, amended and rcstsIcd as of August 6, 1993, and as may be further amended and/or
restated, and all persons dealing with the Crown American Realty Trust must look solely to the Shopping Center for the
enforcement of any claims against Crown American Realty Trost, as neither the Trustees, officers, agents or shareholders of the
Crown American Realty Trust assume any personal liability for obligations entered into by the Crown American Realty Trust by
reason of their status as said Trostee, officer, agent or shareholder.
23. ComDliance with Re2Ulations, Licensee agrees to comply with all rules and regulOlions promulgated by
Licensor to govem the Shopping Center in whieb the Premises arc located. Licensee covenants and agrees that Licensee 01 its
own cost and expense: (a) Will comply \\lith all notices, orders, laws, and ordinances, including all environmental laws an laws
relating to wastes and hazardous materials and any environmental stale, county or local laws or regulations, the
Comprehensive Environmental Response, Compensation and Liability Act of 1980 and the Resource Conservation and
Recovery Act of 1976, as amended from time-to-time, with any prc-approvals, if required, to be granted by the respective
governmental agency; and will not engage in the treatment of any waste, except as permitted or required by law and subject to the
consent of the Licensor and the issuance of all approprialc licenses and pennits and compliance with all laws and rcguIations
relating to sueb treatment.
24. Cantions. The captions appearing in this License Agreement ore inserted only as a matter of convenience and
in no way define, limit, construe or describe the scope or intent of such sections or articles of this License Agreement nor in any
way affect this License Agreement.
25. Entire Al!Teement. The Liccnsc Agreement, the Exhibits, and Rider, if any, set forth all the covenants,
promises, agreements, conditions and understandings between Licensor and Liccnscc concerning the demised premises and there
are no covenants, promises. agreements, conditions or understandings, either oral or written, between them other than as herein
set forth. All prior communications, negotiations, arrangements, representations, agrccmcnts and understandings, whether oral,
written or both, between the parties hereto, and their representatives, arc merged herein and extinguished, this License Agreement
superseding and canceling the same. Except as herein otherwise provided, no subsequent alteration, amendment, change or
addition to this License Agreement shall be binding upon Licensor or Licensee unless reduced to writing and executed by the
party against whieb sueb subsequent alterations, amendment, change or modification is to be cnfon:cd. If any provision contained
in any rider hereto is inconsistent with any printed provisions of this License Agreement, the provision contained in sueb Rider
shall supersede said printed provision. Licensee hereby edcnowledges thai: (a) this Liccnsc Agreement contains no restrictive
covenants or exclusives in favor of Licensee; (b) this License Agreement shall not be deemed or interpreted to contain, by
implication or otherwise, any warranty, representation or agreement on the part of Licensor that any department store or rCgional
D:\Legal\JobaNJRlliccasc agrccmncts\Cybenpo 5-1~ (FSK).doc
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or national chain stoIC or any other mcrcbant sball open for business or occupy or continue to occupy any ptaDiscs in or
adjoining the Shopping Center during the term of 1his Ucease Agreemeot or any part thereof and Uceasee hereby express\y
waives all ebJim with ICSpCCt thereto and adcnowledgcs that Licensee is not relying on any such warranty, represenlalion or
8l\1=lICl\t by Li=sor either as a matter of indueemcllt in entering into this License Agrcanent or as a condition of this Licease
Agreement or as a covenant by Licensor.
(signatures appear on ncst page)
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IN WITNESS WHEREOF, the parties hereto, intending to be legally bound hereby, have caused this License
Agreement to be duly executed the day and year first above written.
(Corporate Seal)
ATfEST:
t~/J~
Ronald P. Rusinak
SecretarY
(Corporate Seal)
CROWN AMERICAN PROPERTIES, L.P.,
A DELAWARE LIMITED PARTNERSHIP,
BY: CROWN AMERICAN LTY
TRUST, ITS GENERA ARTNER
By:
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RIDER FOR
CyberXpo.com
1. Gross Sale Threshold rrermination
(a) Either Owner or Licensee may, at its option, elect to terminate this License upon thirty (30) days prior written Notice of
Termination (hereinafter ICferred to as the "Termination Date") if and only if Licensee's Gross Sales, as defined in Section 6 of
the License Agreementtotalless than $100,000.00 in the first (IA) or third (3'i year during the term oflhis Licease Agreemenl
(b) Notice of election to terminate this License Agreement shall be given in writing to the other party no later than ninety
(90) days after receipt of Licensee's gross sales for the prior twelve (12) month period during the term oflhis License.
(c) In the event either party receives a Notice of Termination in accordance with the provisions herein above, the License
Agreement shall automatically terminate and end.
(d) Licensee's Election to Terminate the License Agreement, as aforesaid, shall be effective only if the election is made
during the respective lime periods herein provided, with time being of the essence, provided, said notice is accompanied with a
certified check for all sums due or lll:aUing under the Lease through the Termination Date, and provided further, that Licensee is
not in default of any of its obligations under the License either on the date notice of termination is given, or on the Termination
Date.
(e) Notwithstanding anything contained herein to the contraIy, Licensee shall pay all sums due or accruing under the Lease
through the Termination Date.
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EXHIBIT "C"
Gross Sales Defined,
(a) The words "Gross Sales" as used herein shall mean the gross amount of all sales of all goods,
wares and mercbandise sold and all services performed by Licensee and/or by any subtenant, licensee or
concessionaire in, at or from the demised premises (including, but not 1imited to, catalogue sales made at or from the
demised premises), whether for cash, credit or other consideration, with such other consideration being determined at
fair market value and financing charges on all Gross Sales (without reserve or deduction for inability or fililure to
collect) including, but not limited to, such sales and services (I) as a result of transactions originating in, at or from
the demised premises, whether delivery or performance is made from the demised premises or from some other
place; or (2) pursuant to mail, telephone, telegraph, closed TV Circuit, Dial-A-Buy, electronic, video, computer, or
other technology-based systems and other devices, automated or otherwise, whether existing now or developed in the
future whereby orders are received at or supplied from the demised premises. Gross Sales also include all deposits
not refunded to purchasers. Each sale upon installment or credit shall be treated as a sale for the full price in the
month during which such sale shall be made, irrespective of the time when Licensee shall receive payment therefor.
(b) The following shall be deducted from Gross Sales if originally included therein, or excluded
therefrom, as the case may be, provided separate records are supplied supporting such deductions or exclusions,
namely: (I) any exchange of merchandise between stores of Licensee where such exchange is made solely for the
convenient operation of Licensee's business and not for the purpose of consummating a sale made in, at or from the
demised premises, (2) returns to shippers or manutacturers, (3) cash or credit refunds to customers on transactions
otherwise included in Gross Sales, (4) sales of fixtures, machinery and equipment after use thereof in the conduct of
Licensee's business in the demised premises, (5) amounts collected and paid out by Licensee for any sales tax
imposed by any duly constituted governmental authority provided such tax is both added to the selling price as a
separate and distinct amount in addition to the regular price of Licensee's merchandise and paid to the taxing
authority by Licensee (but not by any vendor of Licensee), (6) the amount of ally discount on sales to employees, and
(7) receipts from the permitted pay telephone and vending machines. No value added tax, and no franchise or capital
stock tax and no income, gross receipts or similar tax based upon income, profits or gross receipts as such shall be
deducted from Gross Sales.
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CROWN AMERICAN
February 21, 2001
SENT VIA OVERNIGHT DELIVERY
CyberXpo.com
733 Winter Street
North Andover, MA 01845
RE: License Agreement dated June 29, 2000, by and between Crown American Financing Partnership, L.P., as
Licensor, and cyberXpo.corrt, as Licensee, for premises at Capital City Mall, Camp Hill, Pennsylvania.
-
NOTICE OF DEFAULT
Dear Licensee:
You are hereby declared to be in Default under the above-referenced License Agreement based upon your
violations of Paragraph 5 of the Agreement for failure to pay Fixed Minimum Rent when due.
You are further notified to cure the above-referenced Default within ten (10) days as provided under the License
Agreement. The following charges are now due:
Date
12/0 1/00
01/01/01
02/01/01
Descriotion
Fixed Minimum Rent
Fixed Minimum Rent
Fixed Minimum Rent
Amount Due
$ 3333.33
3333.33
3333.33
$9999 99
.,j
Any questions concerning this outstanding amount should be directed to Ms. Tina Paul, Corporate Credit Manager
at 814-536-9586.
Nothing contained in this letter shall be deemed to estop or preclude Licensor from specifying any other Event of
Default as defined under the License Agreement.
Your failure to timely cure said Default or the continued violation of same shall result in Licensor pursning all
rights and remedies available to il under the License Agreement, at law or in equity,
Sincerely yours,
CROWN AMERICAN PROPERTIES, L.P.,
A DELAWARE LlMlTED PARTNERSHIP,
BY: CROWN AMERICAN REALTY TRUST,
ITS SOLE GENERAL PARTNER
~
Martin Nadorlik
Real Estate Counsel
Director of Lease Admiuistration
Imks
cc:
John Venzon
Andy Herdman
Legal Department
Credit Department
Asset Management Administration
DEDICATED TO CUSTOMER SERVICE EXCELLENCE
CROWN AMERICAN PROPERTIES, L.P.
PASQUERILLAPLAZA' JOHNSTOWN, PA 15907-0879
814'536.4441
Crown American Realcy Trust is du:' managing general partner of Crown American Properties, LP.
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CROWN AMERICAN
PROPERTIES, L.P., by Crown
American Realty Trust, its
General Partner,
Plaintiff
: IN THE COURT OF COMMON PLEAS OF
: CUMBERLAND COUNTY, PENNSYLVANIA
v.
No. 2001-3131 Civil Term
cyberXpo.com, Inc.,
Defendant
Civil Action - Law
AFFIDAVIT OF SERVICE
COMMONWEALTH OF PENNSYLVANIA :
ss.
COUNTY OF YORK
Before me, the undersigned officer, personally appeared CRAIG S. SHARNETZKA, Attorney
for the Plaintiff, who being duly sworn according to law, deposes and says that he served a copy of the
Complaint filed May 22, 2001 in the above-captioned matter on the Defendant in the following manner:
Certified mail, return receipt requested, addressed to Defendant, cyberXpo.com, Inc., at 102 Decker
Court, Suite #203, Irving, TX 75062. The original return receipt card is attached as Exhibit "A". The
date of service was May 30, 2001.
CGA Law Firm
Countess Gilbert Andrews, P.C.
s>sW--
harnetzka, Esquire
Sworn and subscribed to
before me this '3~ day
of .:::June 2001
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My commission expires:
BabW=ii~
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My eo..........' ExpIM _ _ 11, 2004
Mem . PllIlnsyIVa AsSOCI8 ~.s
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. Complet~itenis 1 , 2, and. 3. Also complete
item 4' if Restricted Delivery is desired.
. Print your name and addreSs on the reverse
so that we can return the card to you.
. Attach this card to the back of the mail piece,
or on the 'front if space permits.
1. Article Addressed to:
cyberXpo.com, Inc.
102 Decker Court
suite 203
Irving, TX 75062
x
D. Is de!" address differeR
If YES, enter delivery address b
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.
3. Service Type
GlX!ertlfied Mall CJ Expross Moil
o Registered 0 Return Receipt for Merchandise:
o Insured Mail 0 C.O.D.
4. Restricted Delivery? (Extra Fee) CJ Yes
2. Article Number (Copy from service label)
, 70;QC;1,;2!l70 ,OOPP;13EiL~361
PSFonn:3~1~;..;JL~~~99;; ;~; ::~~~~cAetUrr):~e~l~f
1tl21:i9~'.OO:~~-,:;952
EXHIBIT
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IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
CROWN AMERICAN PROPERTIES, L.P.,
by Crown American Realty Trust, its Sole
General Partner
Plaintiff
v.
No. 2001-3131 Civil Term
cyberXpo.com, Inc.,
Defendant
Civil Action - Law
CERTIFICATE OF SERVICE
I hereby certify that on this date Notice of Praecipe to Enter Judgment by Default
(a copy of which is attached hereto) was served upon the Defendant in the manner
indicated below:
FIRST-CLASS MAIL,
POSTAGE PREPAID THEREON,
ADDRESSED AS FOLLOWS:
cyberXpo.com, Inc.
102 Decker Court, Suite 203
Irving, Texas 75062
CGA Law Firm
Countess Gilbert Andrews P.C.
ssW--
Sharnetzka, Esqurre
Dated: June 19,2001
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IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYL VANIA
CROWN AMERICAN PROPERTIES, L.P.,
by Crown American Realty Trust, its Sole
General Partner
Plaintiff
v.
No. 2001-3131 Civil Term
cyberXpo.com, Inc.,
Defendant
Civil Action - Law'
NOTICE OF PRAECIPE TO ENTER JUDGMENT BY DEFAULT
TO: cyberXpo.com, Inc.
102 Decker Court, Suite 203
Irving, Texas 75062
Date of Notice: June 19, 2001
IMPORTANT NOTICE
YOU ARE IN DEF AUL T BECAUSE YOU HAVE FAILED TO ENTER A
WRITTEN APPEARANCE PERSONALLY OR BY ATTORNEY AND TO FILE IN
WRITING WITH THE COURT YOUR DEFENSES OR OBJECTIONS TO THE
CLAIMS SET FORTH AGAINST YOU. UNLESS YOU ACT WITHIN TEN DAYS
FROM THE DATE OF THIS NOTICE, A JUDGMENT MAY BE ENTERED
AGAINST YOU WITHOUT A HEARING AND YOU MAY LOSE YOUR
PROPERTY OR OTHER IMPORTANT RIGHTS. YOU SHOULD TAKE THIS
NOTICE TO A LAWYER AT ONCE. IF YOU DO NOT HA VB A LAWYER OR
CANNOT AFFORD ONE, GO TO OR TELEPHONE THE FOLLOWING OFFICE TO
FIND OUT WHERE YOU CAN GET LEGAL HELP.
Lawyer Referral Service of
The Cumberland County Bar Association
The Cumberland County Bar Center
2 Liberty Avenue
Carlisle, P A 17013
Telephone No. (717) 249-3166
(800) 990-9108
CGA Law Firm
Countess Gilbert Andrews P.C.
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harnetzka, Esquire
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IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA
CIVIL DIVISION
CROWN AMERICAN PROPERTIES, L.P.,
by Crown American Realty Trust, its Sole
General Partner,
CIVIL ACTION - LAW
Plaintiff
v.
No. 2001-3131 Civil Term
cyberXpo.com, Inc.,
Defendant
PRAECIPE FOR JUDGMENT
Enter judgment in favor of Plaintiff and against Defendant for failure to enter an appearance and/or
file an Answer regarding the above-captioned action:
(X) Assess damages as follows:
Debt....................................... $16,666.65
Interest from 1/1 /01 .................... $ 509.64
Docket costs.....,........................ $
Attorney's Commission.... ..............$ 500.00
TOTAL................................... .$17,176.29
( ) I certifY that the foregoing assessment of damages is for specified amounts alleged to be due
in the complaint and is calculable as a sum certain from the complaint.
() Pursuant to PaRC,P. 237 (Notice of praecipe for final judgment or decree), I certifY that a
copy of this praecipe has been mailed to each other party who has appeared in the action or to
his/her Attorney of Record.
(X) Pursuant to Pa.R.C.P. 237.1, I certifY that written notice of the intention to file this praecipe
was mailed or delivered to the party against whom judgment is to be entered and to his/her Attorney
of Record, if any, after the default occurred and at least ten days prior to the date of the filing of this
praecipe and a copy of the notice is attached. . 5. S' i _1_
Date: July 5, 2001 t. -. '- I.Ji/if:J::;;
C~hametzka, Esquire
Attorney for Plaintiff
29 North Duke Street
York,PA 17401
(717) 848-4900
Supreme Court No. 83863
NOW, ... J.. I y q
Prothonotary/Clerk, Civil D'
Q
Deputy
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IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYL VANIA
CROWN AMERICAN PROPERTIES, L.P.,
by Crown American Realty Trust, its Sole
General Partner
.
.
Plaintiff
v.
No. 2001-3131 Civil Term
cyberXpo.com, Inc.,
Defendant
Civil Action - Law
NOTICE OF PRAECIPE TO ENTER JUDGMENT BY DEFAULT
TO: cyberXpo.com, Inc.
102 Decker Court, Suite 203
Irving, Texas 75062 .
Date of Notice: June 19,2001
IMPORl'AJ.~ NOTICE
YOU ARE IN DEF AUL T BECAUSE YOU HAVE FAILED TO ENTER A
WRITTEN APPEARANCE PERS.oNALL Y OR BY ATTORNEY AJ.'ID TO FILE IN
WRITING WITH THE COURT yOUR DEFENSES OR OBJECTIONS TO THE
CLAUvIS SET FORTH AGAINST YOU. UNLESS YOU ACT WITHIN TEN DAYS
FROM THE DATE OF THIS NOTICE, A JUDGMENT MAYBE ENTERED
AGAINST YOU WITHOUT A HEARING A1'ID YOU MAY LOSE YOUR
PROPERTY OR OTHER IMPORTA1'IT RIGHTS. YOU SHOULD TAKE THIS
NOTICE TO A LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER OR
CANNOT AFFORD ONE, GO TO OR TELEPHONE THE FOLLOWING OFFICE TO
FIND OUT WHERE YOU CA.c'T GET LEGAL HELP.
Lawyer Referral Service of
The Cumberland County Bar Association
The Cumberland County Bar Center
2 Liberty Avenue
Carlisle, PAl 70 13
Telephone No. (717) 249-3166
(800) 990-9108
CGA Law Firm
Countess Gilbert Andrews P.e.
By C~ s sJdd-
Craig S. harnetzka, Esquire
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