Loading...
HomeMy WebLinkAbout99-05253.h rs s F 2 Z s U a Val- I% IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA LANDMARK COMMERCIAL REALTY INC., NO. rj 9- .5 L.ti3 tom.. ere, - Plaintiff V. CIVIL ACTION - LAW STEPHEN KOUVELIS, Defendant 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 Court Administrator Cumberland County Courthouse Carlisle, PA 17013 (717) 240-6200 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA LANDMARK COMMERCIAL REALTY INC., NO. Plaintiff V. CIVIL ACTION - LAW STEPHEN KOUVELIS, Defendant NOTICIA Le han demandado a usted en la corte. Si usted quiere defenderse de estas demandas expuestas en las paginas siguientes, usted tiene viente (20) dias de plazo al partir de la fecha de la demanda y la notificacion. Usted debe presentar una apariencia escrita o en persona o por abogado y archivar en la corte en forma escrita sus defensas o sus objeciones a las demandas en contra de su persona. Sea avisado que si usted no se defiende, la corte tomara medidas y puede entrar una orden contra usted sin previo aviso o notificacion y por cualquier queja o alivio que es pedido en la peticion de demanda. Usted puede perder dinero o sus propiedades o otros derechos importantes para usted. LLEVE ESTA DEMANDA A UN ABODAGO IMMEDIATAMENTE. SI NO TIENE ABOGADO O SI NO TIENE EL DINERO SUFICIENTE DE PAGAR TAL SERVICIO, VAYA EN PERSONA 0 LLAME POR TELEFONO A LA OFICINA CUYA DIRECCION SE ENCUENTRA ESCRITA ABAJO PARA AVERIGUAR DONDE SE PUEDE CONSEGUIR ASISTENCIA LEGAL. Lawyer Referral Service Court Administrator Cumberland County Courthouse Carlisle, PA 17013 (717) 240-6200 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA LANDMARK COMMERCIAL REALTY INC., NO. 99. 52 S 3 ! T Plaintiff V. CIVIL ACTION - LAW STEPHEN KOUVELIS, Defendant COMPLAINT AND NOW COMES Plaintiff, Landmark Commercial Realty, Inc., by and through its attorneys, Eckert, Seamans, Cherin & Mellott, LLC., and files the within Complaint and in support thereof states the following: 1. Plaintiff, Landmark Commercial Realty, Inc., is a corporation organized, operating and existing under the laws of the Commonwealth of Pennsylvania with a principal place of business located at 20 Erford Road, Lemoyne, Cumberland County, Pennsylvania. 2. Defendant, Stephen Kouvelis is an adult individual with a business address of 2028 Franciscan Way, Suite 213, Alameda, California. 3. Plaintiff is a commercial real estate agency engaged in the business of locating potential buyers and tenants, and negotiating the terms and conditions of sale and lease agreements for commercial properties. 4. Mr. David Remmel is the President and Broker of Record of Plaintiff, Landmark Commercial Realty, Inc. and is thereby authorized to bring the within action under the Pennsylvania Real Estate Licensing Act. 5. Plaintiff believes and therefore avers that at all times material hereto, Defendant is the owner of real property located at 931 Market Street, Lemoyne, Cumberland County, Pennsylvania. 6. On or about December 2, 1994 Defendant employed Plaintiff pursuant to a written contract entitled "Open (Non-Exclusive) Listing to Lease Agreement" (hereafter "Agreement") to procure a tenant for a rental portion of the premises located at 931 Market Street, Lemoyne, Cumberland County, Pennsylvania. A true and correct copy of the Open (Non-Exclusive) Listing to Lease Agreement is attached hereto and marked as Plaintiff's Exhibit "A". 7. Pursuant to the terms and conditions of the Agreement, the Agreement between the parties was to be effective upon execution of the same, and was to terminate on May 2, 1995. 8. The Agreement also contained a provision whereby Defendant agreed to pay Plaintiff as compensation for services rendered a commission of: 6% of the gross lease rental for the original term of the lease, and for any and all renewals, extensions, option periods, or other continuances of a landlord-tenant relationship. 9. Pursuant to the Agreement, the total commission payments of $6,480.00 for the initial term were due and payable as follows: $500.00 upon signing of the lease, and $500.00 per month for the succeeding eleven (11) months thereafter. 2 10. On or about December 15, 1994, Plaintiff contacted and introduced to Defendant a representative of Circle C. Corporation (hereafter "Circle C") as a potential tenant for the rental space locate at the address noted above. 11. Thereafter, Plaintiff expended its time and efforts to procure Circle C as a tenant for the Defendant, such efforts include but are not limited to the engagement in numerous discussions with the Defendant and potential tenant to negotiate a lease of the property. 12. On or about January 5, 1995, Defendant entered into a Commercial Lease with Circle C for the space located at 931 Market Street, Lemoyne, Cumberland County, Pennsylvania. A true and correct copy of the Commercial Lease Agreement and Addendum are attached hereto and marked as Plaintiffs Exhibits "B" and "C" respectively. 13. At all times material hereto, Plaintiff acted in good faith and in accordance with the duties and obligations as provided in the Agreement entered into between the parties. 14. Despite repeated demands of Plaintiff, Defendant has refused to pay the remaining commission due and owing to Plaintiff totalling $2,591.36. 15. By virtue of his actions and representations, Defendant has breached the existing terms and conditions of the Open (Non-Exclusive) Listing to Lease Agreement. 16. Despite repeated requests for payment of the full commission due and owing as a result of his breach, Defendant has expressly refused to provide the same. Defendant has further expressly refused to make any and all subsequent commission payments to Plaintiff. 17. Defendant's actions and representations constitute an express breach of the Agreement entered into between the parties and have caused Plaintiff to suffer the loss of 3 commissions in the amount of Two Thousand Five Hundred Ninety-One Dollars and Thirty Six Cents ($2,591.36). WHEREFORE, Plaintiff, Landmark Commercial Realty, Inc. demands judgment against Defendant, Steve Kouvelis in an amount of $2,591.36 together with interest, costs of suit and any other remedy this Honorable Court deems just and proper under the circumstances. ECKERT SEAMANS CHERIN & MELLOTT, LLC. Ronald M. Lucas, Esquire Pa. I.D. # 18343 Thomas L. Isenberg, Jr., Esquire Pa. I.D. #76652 213 Market Street Harrisburg, PA 17108 (717) 237-6000 Attorneys for Plaintiff Landmark Commercial Realty, Inc. 4 VERIFICATION I do hereby verify that the facts set forth in the foregoing document are true and correct to the best of my knowledge, information, and belief. I understand that any false statements herein are made subject to penalties of 18 Pa. C.S. §4904, relating to unworn falsification to authorities. landmark Commercial Realty, Inc. Exhibft A 4 LAND ARK Four Lemoyne Dr1ve a Lemoyne. Pennsylvania 17043 a 717.731.1990 • Fax: 717.731.6765 P.Ct Box 3004 a HArdshum, Pennsylvania 17105.3004 2M (NON-EXCLUSIVE) LISTING To LEASE For valuable consideration and intending to be legally bound hereby, the undersigned, as ownlar(s) of the following property: emovne, PA 17043 931 Mark « c«,,e« i ---+ - --- ?. vuuuin leaseable square feet does hereby grant to, LANDMARK COMMERCIAL REALTY, INC. Realtor, the permission to 2nd day of Dec lease these remises for a period beginning the ?gt?be-I 199j, and ending on the 2nd day of _ May and for such further period as may be mutually agreed uon. r 1999, It is agreed that if during the period of this agreement Agent obtains a tenant for a rental of $ 1,800/Month inclusive; ® triple net; D other (specify); D all or terms acceptable to the owner, the owner shall pay to the Agent a commission of 6 " of the gross lease rental for the original term of the lease and any and all renewals, extensions, option periods, or other continuances of a landlord-tenant relationship. The commission shall be paid as follows: (Check one) D Upfront for the original term and upfront for each renewal term. D Annually in advance for the original term and all renewals. Q Monthly as rent is collected for the original term and all renewals. ®Other (Specify)':Total catmissicn of $6,480 for the initial term shah be paid as follows: $50D upcn sigsng o the lease 6 $ Mo, cr succeeding 11 Mos.• After the termination of this Agreement or any extanuton thereof, the brokers authority shill continue as to negotiations pending at time of such terelnetion, and If within a period of twelve (12) nonthe subsequent to such terminetien, Property to leased, exchanged or sold to any legal person or entity with whom the Broker thatt hove negotiated during the term of this contract, providing the Broker so notifies the Owners in writing of seems within fifteen (15) days subsequent to terminatlon date, the amid eomefoslon shall be Fold to the Broker by owners. In the event lessee, procured by Agent, Pwthssa the property dwing the term of the lease or any extensions thereof, or within twelve (12) months of explratfon of Lease, LARONARK CMMRCIAL REALTY, INC. Is emu a five (5) percent sales eosmission At settlement. This agreement shall be bledInII upon the trderstIped osiers, their heirs, executors, adainistratars, succesors and assigns. Any coottfasfam earned as a result of this sare- t shall survive any and all deed transfers unless waived by written agreement of both parties hereto. IN WITNESS WHEREOF, intending to be legally bound, hereby the undersigned have caused this agreement to be executed and delivered this _L _day of ?_So 19?. THIS IS A LEGALLY BINDING CONTRACT, IF NOT UNDERSTOOD, CONSULT YOUR ATTORNEY. Accepted by: Landmark Commercial Realty; Inc. BY:_ I IU A , 1 nn D?n Agent for Aforesaid o• er *with final payment of $480 in the 13th month. owner Address Address To'rRL P.02 ExhibH B f STANDARD COMMERCIAL I FACE This Is legally binding contract, b not understood, seek competent eMloe. Commonwealth of Pmmytvmh& _?y[I a, /?z county THIS LEASE made this S/? day of 7;?144 I995, by and borwom _ STEPHEN K AMELI15Pennsylvania a resident of Camo Ht 11. 7ORPDRATMtJ _ riAMMI and _-SIRCLE C WINZAIXIMt That lamrlth awe heraofbY demise Four lot unlo Lame the following described promisee In the -City of l.emoyne Commonwea Pennsylvania Nwit: That certain property located at 931 Market Street, Lemoyne, Pennsylvania, as more particularly described on Exhibit A attached hereto and made a part hereof (the "Premises"). USE The Premises shall be used by Lessee in connection with its operation of a Papa John's Pizza restaurant under a Papa John's Franchise Agreement (the "Franchise Agreement") with Papa John's International, Inc. ("PJI") or for any other lawful use. TERM The term of the Lease shall be for three (3) years ("Initial Term"), commencing on March 1, 1995. Lessee shall have the right to enter upon the Premises commencing February 1, 1995, for the purpose of performing remodeling, renovation and commencing business. Lessee shall have three (3) successive options to renew the Lease for terms of four (4) years each (or a total of fifteen (15) years if all options are exercised, including the 3-year initial Term). Each option must be exercised at least ninety (90) days prior to the expiration of the then current term. "Term" shall mean the initial Term and all applicable renewal terms. RENT In consideration whereof, Lou" agrees to pay Lauw1 agent at office of sold epee, of * i * IF * + * Is on the filet day of each month of said term, In advance, M rant fa add promisee, the sum a * is Is + i of * + * * * * DOLLARS IT. Jr If * If iI per month, being at the fad of a is * * + Is IF A * as * * as if * a * DOLLARS ($-±-!_L + Of *t PER ANNUAL SEE ATTACHED AMENDMENT FOR PENT PROVISIONS QUIET ENJOYMENT; " CONDITION OF PREMISES This Loa" Is made upon the following terms, conditions and oo"nants: Laesamnnamlok"pLa inpowMlonoltho Premlw during said term, but shall not be liable for the IOM of u" by emlMm domain. Lmorw "ass's aging ha" made w representations of PlMha l with respect to Wd building or the premiwr except a hotel, s,plaaalynt loll. loans h" w coned the pnmlsee and accepts the same In the Physical condition In which the some now exists (except as othendea sapnsdy plodded harem). ROOF STRUCTURE Should the mod of the building look at my Ume during said Form, due to m fault m the Pan of Loam, Lauer wM repair the min promptly after being requested In willing by Lame w to dal. Lmo r shall maintain Nubucture of the bulltllrgon IM Frontier, In good condition and repair. ROOF AND DRAINS, ETC; DEBRIS ON Laws will keep the Nod grounds nationality h" ham all ms. bomes, begmants, debris and bwh, Used, will keep the downspouts, Du"n and drains dean, open and it" of oburuation, and In good waking Older. REPAIRS Laaor shall not be obligated or required to make my other npdn w do arty other work on Ol ablautud Prmdm or arypad tMno/, of the aovators lherdn. If my, or an w about my preMm aonneaad therewith, but nol hereby Mated, union and " 10 the indent herein agreed. All other podions of my building hereby lewd shall bekeplIn good repair by Laem and at the and of the later bane, 1 Lassie shall dell"r the Premises N Lacer In good repair and condition, reasonable wool and tom, arts damage bycemey awplod, INSPECTION AND SHOWING Losser reams the night so antsrupon the Premises and to make such repan and to do such work m waboutlM Premises "LA"dr may tl"m necessary OF proper, or ma laws may be lawfully required N make. E M"or eMm upon th Pnmla" M nuke rich repalre, Lessor hall Interfere with Laws's use of the Preml"s as little as la reaemabiy practical and shall corms an Premises b" condition Immediately prior to Lacer undertaking my such wok. Lmor reeemr go right u vM and Inspect the Premlm M" reasonable times and the right to ohm the Promisee to pmapsdlve Imams and purchases, and the right to deplay'FOr SW aid TW PAnr signs on the Promises, but only during the last fifty (5g) days of the then current semi of the law and thin Only a lame has not renewed the term for a tubwqumt term. FAILURE OF LESSEE TO REPAIR; SIGNS Should lase fell to make repairs agreed W by It under this Levu. Lmor may enter the Pronam following twenty (20) days wrian notice b Lame, and make such repalre and mllsct the Cod thereof from lassie u Mdltinal rent Except u heroin spedBoally provided, Luce will at made or permit u be made any allen krus, additional, Improwmente or changes M t s PromWa, nor wte Lame point the ouWds of the buloing or parmltlM emw to be pointed without tiro written eonumd Lauer before work Is Camrased or let. The Consent to a panlwlar sherWon, addlllon, Ampowsmam or change mat not be deemed a conMm b, her a Al" of a ruuldlon against, other altuaUne, addltlam, Imprmements or changes for the luofe. ALTERATIONS AND IMPROVEMENTS BY LESSEE; UPKEEP; COMPLIANCE WITH LAW Lessee will MPlw a prm and other Or= N IM Promle, H and when broken, and Iagbng so of do Lamer maynpace the same red lame will pay Las or the cal and expense tnnol upon demand. Laow will ropla n all keys od or broken, and WO pay Y bills Id uUllgn and uMooe used on the PromlML Lome wig keep a olewors, hourda , vsntlWing and skcaWtloMng QNAQ oqulprcem, aleddowlring, water pipes, water closets, drMa, MWr Eat And OtlNr plumbing On the FIMIINe M good orderend repMr. LmorMnE not be liable for any damages Caused by, a growing ed Of. my breakage, leakage. getting old of order or deteWw a1lmle N Of oald elmon, heading, wal lating and Airmnditioning (HVAQ equhpmml electric wldng, pipes, water coeole, dralao, and Maker Boxes or plumbing, or any of them. Lome will Comply, at all times seed In all reepecat with all the appllc" laws ad ordlosnCas fall lp b nultence, Insofar u the Premioeo hereby lei, and Lame will not by any ad, or mission render imar Faille for myVW& n tllaed. Lanes will not Commit any waste of property, and will take good care of tte RemlMa at An times. CLEAN PREMISES UPON TERMINATION, ETC. Lessee hereby agrees that upon the expiration or prior terrnksion of this Law, Lauw will promptly show from the Prenden ag dons, bash. debris and property of lassie, and Lame will leaw do Boon, atalro, p.... away*, steYatora and shah as dun M t to possible o dam them by meme of the use of broom and shceel. PUBLIC LIABILITY INSURANCE AND INDEMNITY Losses shag during the MUIR lam el No Law, at Rawl own expew, keep An hence by advance Payment d prandunne. publb Ilablliyy Insurances fo m amountof not feu Nan $1,000,000 fw Injuryo a deatholone w make poreons a u a rowt clan oowpenoo and N the amount of $100,000 for damage o property "a single limit of $1,000,000, Inwdrp Lame and Laeea (u an addi lolW assured) agalnal my Ilablliy that may moon a again them a either of them n aorount of any occunmces in a abed the dOONd Promisee during the farm ale Consequence of Lome'soccupancy Moreel and resulting N personal lojuryordeath or propertydanage. Uwe shall on request furnish to laver eeNOcetes of all Iauruoo required under ime paragraph. PROPERTY TAXES; INSURANCE; EXTERIOR MAINTENANCE Lowe will pay for ag property was, the and casualty Insurance on the Promises and odaror and duckma malntenurCa of the Promm. PARKING LOT Laver will property maintain N good Condition Via puking of of the Promises, at his expense. DEFECTSIN PREMISES Lauor shall not be liable for my Injury or danugt, Caused by, Co growing red of, eery dated N seid building, or he equlpmenl diono, plumbing, whin g, electric equipment or appudmarce s, or N N. Premie, except as expressly prwlded herein, or caused by, or glaring out of fife, ran, wind, leaks, seepage or other Cause. SNOW, ICE, TRASH N the Promisee, or, my pan thereof. Condd of find floor ape, adjacent upon the duet. a ground adjwnt to the abut, Lame wed keep the sidewalk, Curb and goer In front thereof or adjacent theleo dam and free from snow, In. debris and obshualbne ad Mg hold laver harmless from all damages or Balms meing wt of Lace is failure to n do. EVENTS OF DEFAULT Upon the happening of my one or more of the wants u expressed In this paragraph!euor shag haw led right, at Neopilon Of lauor, to either annul or terminate this Lease upon ten (10) days prior written notice b laws, H such default Is at cared during such period, and thereupon nJntel and we poeMnlon of the Premises; or the light upon ten (10) days Prior written Mom to Lases, Nsuch default H not whet during such period, to renter and rent the Premle. from tme to time, so agora Of lame, cad sun needy, or r"tft or both, shall not discharge lame from my liability or obligation hereunder, except that rents Pat Is, gross rents lend tlw expam of Collecting and handling, and less Commission) alleded u a result of such Waiting chap be credited again LauesY OWNy up o the amount due under the terms of this LIAM and the balance, If my, Credited W Lauce. Nothing Contned herein, howen er, shag be Continued o require Lemr to re+der and 10481. The seen ca default referred to herein aril (a) failure of lame to pay my one or more of the Instalments of rent, or my other wm, provided for In this law u and ohm to seme become due; (b) the levy of an execution or other legal process upon the goods, furniture, otecte ce other property of Lessee brought on o the Premises or upon the Intend of Lame In this law; (c) the Illing of a Petition In Bankruptcy, a Petition for miganhadon by or against Lome; (d) the appointment of armNer for oil the mi of Lame; (e) the execution by Lame of an assignment for the benedt of Creditors of Lame; IF) except are spedficelly provided herein, the Magnment by Lase of thla Law or the nLaog a eubletWrp by Lome Of Nr Promisee or my pan thereof wthout the surface Conant of Laasor Flat had and obtained; and (g) the violation by Laws of my other of this terms, conditions or Cownante not sit out In this paragraph entitled'E"rote of DduM on the pan of Lowe herein Contained and W lure of Lase o remedy such violation within thirty (30) days after wdw rolb thereof Is goon by Lawr W Laws. .g. DEFAULT.ATTORNEY FEE AND COST; WAIVER OF EXEMPTIONS Lease $0ree1to pay Lanai, or an Lessor's bNair, a reasonable AMmitys lee In the event Lessor aropbye an on" to owed arty rents due hereunder by Lowe after default not cured Wthln Me grace period, or to pound else Mtenq of Leeson In the nand Leeeee Is adjudged a bankrupt, a Iegai process Is levied upon tie goods, furniture. effects or person d prop rdy of Lowe upon tie PrerNese, or upon the Infrared of Lew. In this Law a In the promises, a In the event louse vbate$ arty of the Wme, conditions, a comments an the put of Lessee herein contained, and does red cure th came wlthln the grant period. h ordw so further s arre the face to Payments of eald lonts, u and when the,amo mature, and Mon faithful performance by Lessee of titi and singular tie team, Down"" and convention on Me pan of Losw herein co bnod, and all damages and code thd Loesa may sustain by reason of tie vloetlon of sod terms, conditions and covenanta, w any of them, lone hereby WAS any and all rights b claim personal property u manpl from levy and son, under tie laws of any State a the United Suns. RE-ENTRY; NO BAN No reanby hereunder shelf bat M. recovery of rent or dameoee for Me breach of my of Me mm, conditions, or coventem on ties pert of Lame herein comned. Fine AND OTHER CASUALTY In the event of the soul destruction of, Of puled damage n, the buildings upon tie pemiwa by fire a other owaity, Loud shall proceed with due diligence and dispatch a repair and fedore the buildings M the condltlau to which theyulsted Immediately, orb to Me oecutrMa of each casualty; provided, further, that B Me unglued portion of the term a My ewndoa thered shall be two (2) Vows or 1n on the data of such naturally and the con of such repair or reetoradon exceeds bty percent (40x) of the then mishk ortem value of said ch rnaged Promisee, u saenabd by two or man reputable cabes cre, Lassos may by written netia to Lessee, whin thirty (30) days after Me occunerwe of each malty, give notice DW N Intends to eWmInAe this tan. N Lana pine nation of his Intent b terminate this law and Lena sleds to surdse an option a renewed prMepe which Lessee may have anne this Lease, which N eurdsed, would extend the unexpired form beyond two (2) yew, Lessee may sold such termination notice hom lover by exorcising such option renewal privilege within thirty (30) days aher In remit of won MUM from Lamm. Lessor must gem written notice n Lessee at M. address hereinafter spedned of Leesa'e Intent a repair anydamage M de PYamise, within thirty (30) days afiw Me data of damage win mud compfee such npWs as stun as nawnaGy, practice's a Levee may Mont this Lew, without further obligation to Lever, by giving valnen notice thereof to fluor. TRANSFER OR ASSIGNMENT; CONDITIONS Each and every transfer or assignment of this Low, or any Interest therein, and each and every subdatiing of the Rernisee awry part thereof, many Intoned therein, shall be null and void, unless the written consent col bane be find obWned Martin, not 10 be unreasonably withheld by boa. N a condition precedent W the obWning of such anent, the assignee Or subleeses mud aawme In writing, all Me obligations of Lame hereunder, but such assumption shelf not operate n rel.aN Levee from any agreement a understanding on the pN of Lene exprewd a Implied In this Lew, NOTICES; DEMANDS NI notices, demands, requests, or other communications required or permitted under this Leas shelf be In writing and batleMMed b the pany W whom such nwa, request demand or other communication Is Intended W be dell"red to by (a) personal delivery b such Intended recipient, which persons) delivery shall be evidenced by • mermen realpl therefor, signed by such ralplmt a (b) reoogntsod ",night courier service, with delivery fees prepaid, or (c) United States registered or notified mail, return Weeelpl requested, postage prepaid, addressed to the Intended recipient thereof at the eddrese set fodh below or at such other address u my patty Nan fumlen In wilting to the other: H to Lencr: Stephen Kouvelis 15 Cedar Cliff Drive Camp Hill, Pennsylvania 17011 Win copy to: Landmark Commercial Realty, Inc. Four Lemoyne Drive Lemoyne, Pennsylvania 17043 N to Lessee: circle C corporation 326 N. 24th Street Camp Hill, Pennsylvania 17011 Attn: Mr. Robert Lee Carroll Nth copy W; Michael M. Fleishman Greenebaum Doll & McDonald 3300 First National Tower Louisville, Kentucky 40202 NI such MUMS. diamonds, requests or other communications Nag be effective (a) In 1st cam of personal delivery, upon baby Personally delivered and properly recopied, (b) In the axe of ovemlght tanker service, upon being delivered bywch semvlse we shown, In the books and reoorde of each service, or (e) In the case of United Sew mail, upon being popery deposed In the United SlaN$ mail In aamdM" with Me Immedlately preoeding wntmos; "Mod, however, hest In the use of proper km"Is lore of a noun, demand, request at other communication by L outed States Mello aNned/return receipt requested, the time pwled In a/Iloh ¦ response thereto must be given by the redplent thereof shall commmos to run ham the date or receipt M Me return nalpt of the ration, demand, request or other communication; and pravided further, however, Net H the Intended fedplent refuses delivery of wry such notice, demand, request or other communication, or falls or neglects to Accept delivery after three (3) attempts to do se, it NN be deemed received on me date on which It was properly deposited with the United States mail. AMENDMENTS No amendment or vitiation of the term, of this Bass shall be valid union made In writing and signed by tho partial howetc, WAIVEn OF SUBROGATION RIGHTS North., Lever nor Len. Mail be Ilabls a the other b MY loss a datnage from dyke ordlnanty Insured against under Rare Insumso, polldes with edendedeoverage endorsements, brespood" of whether much lose or damage results horn their ngilooro or Mod of wry of their regents, Somme, employs**. Ramona or contractors W tie extent Net such tone we cowered by vAnd and collrectabe Insurance on the property at me time of the tau. .31. y HOLDOVER Should Lame pond... W oooupy the Prem"" after the explreUM of Me Wd form to a1W • fpldWre 4haurted, eubt bnanoy ahal be • bMnoy ham month b month, year W year, NON-WAIVER The failure of layer b Ind.. in any one M mob blame,, upon • allot p.dp yudy any Option heroin oonWMd. MM r be hna.q of any of 1110 oov.nanb of We Vow, a to but ft "I onmtu cewadgrinewhe Ofa WkqulAh rot for the WWre, M AM h1v nom a opllan t hot h.nol Mall be .hal t be d. deeand med a remain wdnv.r I of f force ooxenant , euM e pandeaM. .tent The "113 by lase. Of rent, wmh kn;Zdoe of the breach of any SUBORDINATION/ ATTORNMENT Lome agrees b exeou!e and daMr b leap Iron Um. b Um. Wlhln thirty PO) days after written reppU by layer an Inybm.nb whlwlqMMmigMnhtbbTh. h. omeLLM pulr.d by Layer ro sub.dlMb Mb leay ro yy bstltutl the VyNy ontl m.tgag. on tat R.mlys, pravld.d path L b440, ybpol not b Mall pM a whng a mndiahubww. Wn`d,, my d pre lasses b tat .path Ihy qes. of the Pnmlye Mall MI W disturbed y long M h by rot Idled b Dore coat ebuN under Wa lease wlWn t1. applkape prep pa gd rlad. BINDING EFFECT his understood and agreed bylhs pardas hereto that we Loan Shy be binding uqn Locate and Lauer and limit ...P"dw. adminfobators, helhe, anigna and suocomrs. x.roh., AMENDMENT AND ADDENDUM CLAUSE This Lease consists of four (4) pages, plus Exhibit A hereto, together with an Amendment, which is incorporated in this Lease by reference, and an Addendum. In case of conflict between the printed portion of this Lease and the Amendment and Addendum, the terms of the Amendment and Addendum shall prevail. IN WITNES.4 WHEREOF, the pales innlo hew yt their hands aa of the day end you fiat Mnlnabw, mmm. STEPHEN KOWELIS rlaypr) CIRC,LH-C CORPO By TIUe: ]t4=n:r- rumal COMMONWEALTH OF PENNSYLVANIA COUNTY OF )) SS: The Ior.ooing lawmen waa aekno .dged bal.. me Mlg, d y of INS, by • reside _ n of Tnbanon Pennsvlvan act and voluntuy deed. My Oomminlon expiry: COMMO TH OF PENNSYLVANIA ) COUNTY OF ) SS. ANIY 1W7 1 14 'E DO +? The foregoing lnegumsnlwy eoknpwl.dgad Mler.m. I, , xp nn y, Me. thlsjtl. of C , tW by S;irGle C CGfDG a Oon Vlyania corporation b and On aMM f W Carroll y O y Corpora tph, by and through Reber T.ee . re I Vice President My Cammitam, explbr. N Notary Prepared by: ? Nplhhhbl;ggl NntlryA fenny, f:dgy qpb Cnnnl arO.o.Creh4yxlml ioskan Ea/obh,Aro 14 1 ) M chae M. Fle hma . i0w, {Sy a ? xuri`u?ii.`7,gi;, ,a Greenebaum Doll & McDonald 3300 National City Tower i. Louisville, Kentucky 40202 (502) 589-4200 1 j:, F.? 1. 1• 19 .•?' s3xbdw ,•?? •l4hi i r r- • ,c•0 1 .._?,,._ ,?..? n, AMENDMENT OF COMMERCIAL LEASE THIS AMENDMENT OF COMMERCIAL LEASE ("Amendment"), made and entered into this S& day of ow.V , 1995, by and between (i) STEPHEN EOWEIS, an ind v dual resident of Camp Hill, Pennsylvania ("Lessor"), and (ii) CIRCLE C CORPORATION, a Pennsylvania corporation, with principal office and place of business in Camp Hill, Pennsylvania ("Lessee"). E H E L I M I E A $ I B T A I E M E E T: A. Contemporaneously herewith, the Lessor and the Lessee are entering a Lease dated of even date herewith (the "Original Lease") pertaining to property located at 931 Market Street, Lemoyne, Pennsylvania (the "Premises"), subject to the amendments, revisions and changes contained in this Amendment. B. Lessor acknowledges that Lessee intends to operate a Papa John's Pizza outlet in the Premises under a Papa John's Franchise Agreement (the "Franchise Agreement") with Papa John's International, Inc. ("PJI"). NOW, THEREFORE, in consideration the premises and the mutual covenants herein contained, the parties hereto hereby agree as follows: 1. The terms of the Original Lease are hereby amended by the terms of this Amendment. The term "Lease, 11 wherever used in the original Lease or this Amendment, means the Original Lease as amended by this Amendment. This Amendment shall have priority and govern over any conflicting or inconsistent provisions of the original Lease, whether written or typed, and the parties acknowledge that there are a number of such conflicting provisions. 2. Lessor acknowledges that Lessee has deposited with Lessor the sum of $1,800, to be held, without interest payable to Lessee, as a security for the payment of rent and any and all other sums of money for which Lessee shall or may become liable to pay to Lessor under this Lease, and for the faithful performance by Lessee of all covenants and agreements under this Lease, said deposit to be returned by Lessor to Lessee after the termination of this Lease and any renewal hereof, provided no Event of Default hereunder shall have occurred and not been cured. Nothing in this paragraph shall be deemed to limit the amount of any claim, demand, or cause of action of Lessor against Lessee under the provisions of this Lease. 3. After the expiration of the 3-year Initial Term of the Lease, the Lessee shall have the right and option to renew the term of the Lease for three successive terms of four (4) years each (each a "Renewal Term"), by giving written notice to Lessor of such renewal at least ninety (90) days prior to the expiration of the Initial or then current Renewal Term, as applicable. Each of such renewals shall be on the same terms and conditions as are contained in the Lease, except for the rent during such Renewal Terms which shall be as specified in Paragraph 4 of this Amendment. 4. (a) Initial Term. During the 3-year Initial Term of the Lease, the rent shall be $1,800 per month, $21,600 annually. All rent shall be paid on the 1st day of each calendar month, payable in advance, commencing March 1, 1995. (b) Renewal Terms. Each of the Renewal Terms, if any, shall be on the same terms and conditions as the Initial Term of this Lease, except that the monthly rental for each year of each 4- year Renewal Term shall be adjusted by multiplying the annual rent in the amount of $21,600 by the Consumer Price Index for All Urban Consumers for the City of Harrisburg, Pennsylvania, issued-by the Bureau of Labor Statistics of the United States Department of Labor ("CPI-U") for the month of January immediately preceding each year of such 4-year Renewal Term, and dividing such product by the CPI-U for the month of January, 1995, but in no event shall the annual rent during each year of each 4-year Renewal Term be less than $21,600 per year or more than $864.00 per year higher than the rent- during the immediately preceding year. As used in this Paragraph 4(b), "year" means the period from March 1 through the last day of February of each calendar year. All such rent shall be payable in equal monthly installments payable on the first day of every calendar month. If publication of such CPI-U shall be discontinued, a similar computation shall be made using comparable statistics for the City of Harrisburg, Pennsylvania, computed and published by an agency of the United States, Commonwealth of Pennsylvania, the City of Harrisburg, or by a responsible financial periodical of recognized authority. If any installment of rent covers less than a full calendar month, it shall be prorated on a daily basis. All rent payments shall be sent to Lessor at the following address: Stephen Kouvelis 15 Cedar Cliff Drive Camp Hill, Pennsylvania 17041 5. Lessee shall be responsible for all property taxes and assessments levied upon the Premises. Lessor shall provide Lessee with an invoice evidencing the amount due and Lessee shall pay to Lessor said amount within thirty (30) days of receipt of such invoice. Lessee shall also pay all taxes assessed against and levied upon trade fixtures, furnishings, equipment, and all other personal property of Lessee located in or on the Premises. 6. Lessee shall pay for all utility service supplied to the Premises, including gas, electric, telephone, sewer and water service. -2- 7. Lessor represents to the Lessee that the Premises comply with all applicable building, fire, safety and other health codes and are connected to all electrical, water, city or public sewers and telephone utilities, in capacities sufficient to serve a Papa John Pizza delivery and take out restaurant, and that the Premises are zoned for operation of a restaurant. 8. Lessor and Lessee agree that the Lessee's obligations under this Lease are conditional and contingent upon the satisfaction of all of the following contingencies on or before January 15, 1995: Premises (a) Papa a site for an Papa John's i restaurant ( and =agrearoves the es to grant a franchise agreement to the Lessee for operation of a Papa John's restaurant at the Premises. (b) The Lessee is satisfied, in its sole discretion, that the Premises are properly zoned for the operation of a Papa John's Pizza delivery and take out restaurant, and all necessary approvals have been obtained from the Borough of Lemoyne and any other governmental or quasi-governmental body having jurisdiction therefor for the use by Lessee of the Premises as a Papa John Pizza delivery and take out restaurant. If necessary, the Lessor agrees he will use his best efforts to help Lessee obtain approval of same. (c) The Lessee is satisfied that it will be able to remodel the building on the Premises for a Papa John's restaurant, at a cost satisfactory to Lessee. ) items In the event (c) have been satisfied onor before Ja uary15, 1995, Lessor,?d at his expense, shall strip the interior of the Premises, including the removal and disposal of the hydraulic lift in the former bay area and the shelving in the former service area. The Lessor agrees to do all of the same by February 1, 1995. Lessee shall have until January 15, 1995 within which to satisfy items (a), (b), and (c) above, and until February 1, 1995 to satisfy item (d). If the foregoing contingencies are not satisfied within such periods of time, the Lessee may cancel this Lease by giving written notice thereof to the Lessor at any time before February 15, 1995. Upon the cancellation of this Lease, Lessor shall return to Lessee the $1,800 security deposit. 9. Lessor agrees that Lessee may display such proprietary marks and signs on the interior and exterior of the Premises as Lessee is required or desires to do pursuant to the Franchise Agreement and any successor Franchise Agreement under which Lessee operates a Papa John's Pizza business in the Premises. Lessee, at its expense, may install a Papa John's back-lit awning and building sign on the storefront over the building on the Premises and may erect a free-standing pole and sign in the parking lot on the -3- Premises. The Lessor hereby gives his advance approval to Lessee for all exterior and interior modifications to the building located on the Premises and there is no need to obtain any further consent from the Lessor for all improvements, additions, alterations and remodeling, from time to time, to the Premises and the building located thereon, as the Lessee determines in its sole discretion to make. On or before January 15, 1995, Lessee agrees to submit the plans for the major renovations to the Premises to Lessor for Lessor's review and approval, which approval shall not be unreasonably withheld. 10. Under all circumstances whatsoever, Lessee shall have at least thirty (30) days after its receipt of written notice from Lessor specifying a particular default in detail, if such default is other than the payment of rent (as to which the cure period shall be ten (10) days after its receipt of written notice specifying the default), within which to cure such default before Lessor may take any legal or other action to enforce the Lease or any rights and remedies as a result of such default. No such default shall be actionable or be deemed an Event of Default until after expiration of the applicable cure period without being cured. 11. All structural improvements to the Premises shall adhere to the Premises, and become the property of Lessor, with the exception of such additions as are usually classed as equipment, furniture and trade fixtures, including but not limited to all equipment, ovens, stoves and related equipment (if installed by Lessee), store awnings, pole signs, walk-in coolers installed by Lessee, appliances, make lines and counters, and all of the same are to remain the property of the Lessee and may be removed by Lessee at the termination of this Lease, provided Lessee has made all rent payments required hereunder and an Event of Default has not occurred. Any damage to the Premises by Lessee in removing any property shall be the responsibility of Lessee. Lessee shall repair and restore all damage done to the Premises by removal of trade fixtures and equipment. 12. In the event there is a fire or other damage to the Premises and the repair and restoration of the Premises can reasonably be expected to be accomplished within ninety (90) days, the Lessor, at his expense, shall restore the Premises to its condition immediately prior to such fire or other damage; if such restoration cannot be completed within ninety (90) days after the date of occurrence of such casualty, as estimated by a reputable contractor, the Lessee shall have the right to terminate this Lease by giving written notice to Lessor within thirty (30) days from the date of Lessee's receipt of written notice from Lessor of the estimated repair period. If the repair and restoration of the Premises is not complete within ninety (90) days of the date of the casualty, the Lessee shall have the right to terminate this Lease by giving written notice to the Lessor. From the date of such damage or destruction until the Premises have been completely repaired or restored, an equitable abatement of rent shall be allowed Lessee. If the Lessee is not open for business at the -4- Premises as a result of fire, damage or other casualty, the rent shall abate entirely. 13. The Lessor agrees that the Lessee may have a pole sign on a pole in the parking lot of the Premises, if the Lessee can obtain governmental approval for same, if necessary, and the Lessor agrees to sign the application for same if legally required and will use his best efforts to help Lessee obtain approval for a pole sign to advertise its restaurant. 14. The Lessee shall have the exclusive use of the parking lot in which the Premises are located, for use by the Lessees customers, employees and invitees, and Lessee shall be responsible for the removal of snow from the parking lot at Lessee's expense. 15. in Lessee order, e repair land maintain all portions of none Premises structural, foreseen and unforeseen, ordinary unusual and extraordinary maintenance and repair, except as hereinafter provided. Notwithstanding anything to the contrary contained in the Lease, Lessor shall be responsible for any structural defects and for the foundations and roofs and the repair of same. If the Lessor fails to make any repairs of or replacements that are required to be made by the Lessor pursuant to the terms of the Lease, then the Lessee may make the same, upon giving twenty-four (24) hours prior written notice to the Lessor if the same is an emergency or crucial to the Lessees business and, if not, then upon ten (10) days prior written notice to Lessor, and deduct all costs of the same from the next installments of rent coming due under the Lease. 16. Lessor represents and warrants to Lessee that Lessor has good and marketable title to the Premises and that Lessee shall have the peaceful and quite possession of the Premises during the entire Term and all Renewal Terms so long as Lessee does not commit an Event of Default or, if an Event of Default has occurred, so long as Lessee cures such default; provided, however, this Lease shall always be subordinate to the existing mortgage on the Premises as of the date of this Lease. 17. Lessor represents and warrants to Lessee that the Premises are free from all harmful, unlawful or illegal environmental contamination and that the Premises do not contain any "hazardous materials or waste," subject to applicable federal, state or local laws, statutes, ordinances, rules or regulations. The Lessor, at his expense, shall cause the removal of harmful, illegal or unlawful or hazardous substances and shall minimize interference with Lessee's business on the Premises to the greatest extent possible and shall indemnify and hold harmless the Lessee from and against all claims, actions, causes of actions, losses, damages and the like, including attorneys fees and court costs, incurred by Lessee in connection with harmful, illegal, unlawful or hazardous materials. -5- 18. shal all with respects toLessor the 1 easel fa the P emises estate commissions owed Lessee including the commission to Landmarky Cohe Lessor to the inc., pursuant to a separate agreement that has beeninegotiate' between Lessor and such realtor. 19. Notwithstanding any other provision to the contrary contained in the Lease, the Lessee, without the need for consent from the Lessor, may assign the Lease or sublet the Premises to PJI or the corporation or other entity any franchisor of the Papa John's concept to Lessee or toian is the franchisee of the Papa Johns concept or any affiliate ofyanyhof the same. However, no assignment to PJI shall be effective until such time as PJI gives Lessor written notice of its acceptance of such assignment, and nothing contained herein or in any other document shall constitute PJI a party to the Lease, or guarantor thereof, and shall not create any liability or obligation on PJI until Howeverand unless he Less ehshallsremain liable undera sted the Leae to the same extent it was liable under the Lease by, PJI. subletting. Lessor shall not unreasonaprior to such assinment or bly withhold its cone nt to any other assignment of the Lease. Lessee may sublet the Premises with the prior written consent of Lessor, which consent shall not be unreasonably withheld. 20• This Lease parties hereto constitutes the entire agreement of the prior pertaining to its subject matter, and supersedes all or contemporaneous agreements, undertakings and understandings of the parties in connection with the subject matter hereof. 21- is deliered Commonwealth of Pennsylvaniaiand eshall bebconstrued,Intern t ed and enforced in accordance with the laws of such Commonwealth. 22. This Lease shall be binding on the parties hereto and all those claiming through or under any of them, and shall inure to the benefit of the parties hereto and their respective successors and assigns. 23• This Lease may only be modified or amended by a writing signed by each of the parties hereto. 24. Except as specifically amended and conditions of the Lease are hereby reference and shall remain in full force hereby, all of the terms incorporated herein by and effect, and each of -6- the parties hereto hereby reaffirm and confirm all of the terms and provisions of the Lease, as amended hereby. IN WITNESS WHEREOF, the parties hereto have executed this Amendment of Lease as of the day, month and year first above written. LESSOR: LESSEE: My commission expires: No'xrial Seal Katltyq,TOMY,InwayPic N 97 My anL^u ?CCx es J?una coon 00 03 COMMONWEALTH OF PENNSYLVANIA ) ,mte6?ann?i ar7a^?Nw COUNTY OF ) SS: 01.4? 117 /? .,++.?qcn xUUVELIS COMMONWEALTH OF PENNSYLVANIA COUNTY OF e4u ) SS: The regoing instrument was acknowledged before me this 5 day of . 1995, by Stephen Kouvelis, an individual resident of Camp Hill, Pennsylvania, to be his free act and voluntary deed. Not ry Publ c The foregoing instrument was acknowledged before me this day of 1995, by CIRCLE C CORPORATION, a Pennsylvan a corporat on, by and on behalf of said corporation, by and through Robert Lee Carroll, its Vice President. My commission expires: LNo!:,4vc?d Call,0610oro. uinborlanu"Ic My Con ift k)n Explies Juno 19,1997 Mumbor, Peru ?veNa Ilan of NaoAn -7- This Instrument Was Prepared By: GREENEBAUM DOLL & McDONALD 3300 National City Tower Louisville, Kentucky 40202 (502) 589-4200 -8- CERTIFICATE OF SERVICE I, Thomas L. Isenberg, Jr., hereby certify that a true and correct copy of the foregoing Complaint was served upon the following by deposit in the United States mail, certified, return receipt requested on this 26th day of u us? 1999. Steve Kouvelis 2028 Franciscan Way, Suite 213 Alameda, California omas L. Isenberg, J DATED: 6817ze M T b O f? GJ Q; J a N a IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA LANDMARK COMMERCIAL REALTY INC., Plaintiff NO. 99-5253 V. STEPHEN KOUVELIS, Defendant CIVIL ACTION - LAW PRAECIPE TO SETTLE AND DISCONTINUE TO THE PROTHONOTARY: Please mark the litigation commenced under the above referenced caption and docket number as settled, discontinued and ended with prejudice. ECKERT SEAMANS CHERIN & MELLOTT, LLC Thomas L. Isenbe?JrEsqu I.D. No. 76652 213 Market Street P.O. Box 1248 Harrisburg PA 17108-1248 (717) 237-6000 DATE: eq Attorneys for Landmark Commercial Realty CERTIFICATE OF SERVICE I, Thomas L. Isenberg, Jr., Esquire, hereby certify that I am this day serving a copy of the foregoing document upon the person(s) and in the manner indicated below, which service satisfies the requirements of the Pennsylvania Rules of Civil Procedure, by depositing a copy of the same in the United States Mail, Harrisburg, Pennsylvania, with first-class postage prepaid, as follows: Stephen Kouvelis 2028 Franciscan Way Suite 213 Alameda, CA C Thomas L. Isenberg, 3 DATED: 011%0141-1 190379.1 ?; ?, ?; .,, ?? ?; .? ,... ?., _ y l (.J ? _ /? ._ .-. ' ?._. _ l.' c7? . ? .`? l:'1 ?