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Home My WebLink About09-0911DEEB, PETRAKIS, BLUM & MURPHY, P.C. BY: Frank G. Murphy, Esquire Christine McGuigan, Esquire Identification Nos. 65886; 86784 1601 Market Street, 26t Floor Philadelphia, PA 19103 (215) 563-0500 PR REAL ESTATE, LLC & HOME ELITE, LTD. 491 Old York Road, Suite 200, Jenkintown, Pennsylvania 19046 V. Plaintiffs, Attorneys for Plaintiffs, P.R. Real Estate, LLC & Home Elite Ltd. COURT OF COMMON PLEAS CUMBERLAND COUNTY CIVIL ACTION - LAW Docket No. 04- q 1I 0, 1Va TM WORLD PREMIERE HOME ENTERTAINMENT, LLC 5140 East Trindle Road, Mechanicsburg, Pennsylvania 17055 Defendant. CONFESSION OF JUDGMENT FOR MONEY Pursuant to the authority contained in the warrant of attorney, the original or a copy of which is attached to the Complaint filed in this action, we appear for the Defendant and confess judgment in favor of the Plaintiffs and against the Defendant as follows: Unpaid Rent Total: Judgment Entere s Above othonot $17,723.74 19,496.11 DEEB, PETRAKIS, BLUM & MU HY, P.C. By: FRANR G. MURPHY, ESQUIRE CHRISTINE MCGUIGAN, ESQUIRE Attorneys for Defendant DEER, PETRAKIS, BLUM & MURPHY, P.C. BY: Frank G. Murphy, Esquire Christine C. McGuigan, Esquire Identification Nos. 65886; 86784 1601 Market Street, 26th Floor Philadelphia, PA 19103 (215) 563-0500 PR REAL ESTATE, LLC 8s HOME ELITE, LTD. 491 Old York Road, Suite 200, Jenkintown, Pennsylvania 19046 V. Plaintiffs, Attorneys for Plaintiffs, P.R. Real Estate, LLC 8s Home Elite Ltd. COURT OF COMMON PLEAS CUMBERLAND COUNTY CIVIL ACTION - LAW Docket No. WORLD PREMIERE HOME ENTERTAINMENT, LLC 5140 East Trindle Road, Mechanicsburg, Pennsylvania 17055 Defendant. COMPLAINT FOR CONFESSION OF JUDGMENT UNDER PENNSYLVANIA RULES OF CIVIL PROCEDURE 2950, ET SEO Plaintiffs, P.R. Real Estate, LLC & Home Elite Ltd. (hereinafter "Plaintiffs" or "Landlords"), by and through their attorneys Deeb, Petrakis, Blum & Murphy, P.C., file this Complaint for judgment by confession pursuant to Rules 2950, et seq., of the Pennsylvania Rules of Civil Procedure and, in support hereof, state as follows: THE PARTIES 1. Plaintiffs are owners of a shopping center commonly known as East Gate Plaza, located at 5205 Simpson Ferry Road, Mechanicsburg, Pennsylvania 17055, as tenants in common and have a principal place of business located at 491 Old York Road, Suite 200, Jenkintown, Pennsylvania 19046. 2. Defendant, World Premiere Home Entertainment, LLC (hereinafter "Defendant" or "Tenant"), Pennsylvania Limited Liability Corporation with a principal place of business at 5140 East Trindle Road, Mechanicsburg, Pennsylvania 17055. COUNT I FOR JUDGMENT OF MONEY (PAST RENT OWED) Pa.R.C.P. 2950, et seq. 3. Plaintiffs incorporate by reference the foregoing paragraphs as if fully set forth herein at length.. 4. Defendant was in occupancy and possession of approximately 2,000 square feet of commercial space known as Suite 17, East Gate Plaza, 5205 Simpson Ferry Road, Mechanicsburg, Pennsylvania 17055 (the "Property") and utilized the space as a home electronics store known as Genius Home Theatre during the relevant time period. 5. Plaintiffs are the owners of the Property. 6. Defendant leases the Property from Plaintiffs for commercial use pursuant to a written agreement (as the same has been amended, assigned, restated, or otherwise modified through the date hereof, "Lease"). See a true and correct copy of the Lease which is attached hereto, incorporated herein, and marked as Exhibit "A." 7. Defendant originally entered into the Lease with one Wesley Associates ("Assignor"). Assignor sold and assigned its rights under said Lease to Plaintiff. Pursuant to the terms of the Lease, Defendant is required to pay to the Plaintiffs a monthly fixed Rent. See Exhibit A, Article 6. 8. The Defendant is also obligated under the Lease to pay the Plaintiffs Additional Rent in the form of, inter alia, utilities. See Exhibit A, Article 10. 9. Defendant is subject to the terms of the Lease, including confessions of judgment clause/warrants of attorney personally signed by Defendant. See Exhibit A, Article 25(b)(6)-(7). 10. Defendant has defaulted on its obligations under the Lease by virtue ofits failure to pay the Plaintiffs Rent and Additional Rent in the amount of$17,723.74. 11. In addition, Defendants are required to give ninety (90) days notice prior to the end of the Lease term in order to terminate the Lease. See Exhibit A, First Amendment to Lease. 12. Defendants did not provide the requisite notice and, therefore, by operation of law, the Lease term was extended from January 1, 2009 to December 31, 2009. 13. By letter dated December 17, 2008, Plaintiff notified Defendant of Defendant's failure to comply with various provisions of the Lease. Through the letter, Plaintiff further advised Defendant that, unless Defendant made payment in full of the amounts owing under the Lease, Plaintiff would exercise any and all rights and remedies available to the Plaintiff for non-payment of rent. See a true and correct copy of the December 17, 2008 Letter which is attached hereto, incorporated herein, and marked as Exhibit B. 14. As of the date hereof, the Defendant has not cured its default. 15. Under the Lease, the Plaintiffs are empowered to confess judgment against Defendant for all back rent and other sums owed. See Exhibit A, Article 25(b)(6). 16. Under the Lease, Plaintiffs are also entitled to recover from the Defendants an attorney's commission for collection often percent (10%). See Exhibit A at Article 25 (b) (6). 17. Thus, as of this date, the amounts due and owing by Defendant to Plaintiffs under the Lease are as follows: Unpaid Rent $17,723.74 Attorney's Fees (10%) $ 1 772 37 Total: $19,496.11 18. Judgment is not being entered by confession against a natural person in connection with a consumer credit transaction. 19. No judgment has been entered on the Lease in any jurisdiction. 20. The Warrant of Attorney is less than twenty (20) years old. WHEREFORE, Plaintiffs, P.R. Real Estate, LLC & Home Elite Ltd., hereby demand judgment by confession in the amount of $19,496.11 against Defendant, World Premiere Home Entertainment, LLC, as authorized by the warrant of attorney appearing in the attached Lease, together with such other and further relief as the Court may deem proper. DEEB PETRAKIS, BLUM & M HY, P. C. By: Frank G. Murphy, Esquire Christine C. McGuigan, Esquire 1601 Market Street, Suite 2600 Philadelphia, PA 19103 (215) 563-0500 Attorneys for Plaintiffs, Dated: February 5 2009 P.R. Real Estate, LLC & Home Elite Ltd. VERIFICATION I, Scott Homel, state that I am authorized to make this Verification on behalf of the Plaintiffs, and that the facts set forth in the preceding Complaint are true and correct to the best of my knowledge, information and belief. This Verification is made with knowledge of the penalties contained in 18 Pa.C.S.A. §4904, relating to unsworn verification to authorities. By: Scott Homel for P.R. Real Estate, LLC & Home Elite Ltd. Dated: February 3 , 2009 Y5, k, b;f f} FIRST AMENDMENT TO LEASE This FIRST AMENDMENT TO LEASE dated the 15th day of November, 2004 is made and entered into by and between PR Real Estate, LLC & Home Elite, Ltd. As Tenants in Common (hereinafter referred to as "Landlord") and World Premiere Entertainment, LLC (hereinafter referred to as "Tenant") for space at Eastgate Plaza (hereinafter referred to as the Shopping Center) known as Store 17 (hereinafter the "Leased Premises") WITNESSETH; Whereas, by the existing Lease Landlord let to the Tenant that certain Leased Premises known as Store 17 East Gate Plaza., Mechanicsburg, PA (to which Lease reference is hereby made for all and singular the terms, provisions, and conditions thereof), and WHEREAS, the parties hereto desire to modify the said Lease as hereinafter set forth, Article 6 is hereby amended to reflect the following: Term Monthly Year 1/1/05-12/31/05 $1,500.00 $18,000.00 1/1/06-12/31/06 $1,666.67 $20,000.00 Article 41 is hereby amended to reflect the following: To Landlord at: PR Real Estate, LLC & Home Elite, Ltd, as Tenants in Common C/O Pintzuk Brown Realty Group, Inc 45 East City Line Avenue, #377 Bala Cynwyd, PA 19004 Article 42 is hereby DELETED. Exhibit D is hereby deleted in its entirety and replaced as follows: Tenant: World Premiere Entertainment, LLC l1 Kenneth Bosley Landlord: PR Real Estate, LLC & Home Elite Ltd, TIC BY: Pintzuk Brown Realty Group, Illy, Agent. i?? AD R. Christopher Datz Director of Asset Management Services FIRST AMENDMENT TO LEASE This FIRST AMENDMENT TO LEASE dated the 15`h day of November, 2004 is made and entered into by and between PR Real Estate, LLC & Home Elite, Ltd. As Tenants in Common (hereinafter referred to as "Landlord") and World Premiere Entertainment, LLC (hereinafter referred to as "Tenant") for space at Eastgate Plaza (hereinafter referred to as the Shopping Center) known as Store 17 (hereinafter the "Leased Premises") WITNESSETH; Whereas, by the existing Lease Landlord let to the Tenant that certain Leased Premises known as Store 17 East Gate Plaza, Mechanicsburg, PA (to which Lease reference is hereby made for all and singular the terms, provisions, and conditions thereof), and WHEREAS, the parties hereto desire to modify the said Lease as hereinafter set forth, Article 6 is hereby amended to reflect the following: Term Monthly Year 1/1/05-12/31/05 $1,500.00 $18,000.00 1/1/06-12/31/06 $1,666.67 $20,000.00 Article 41 is hereby amended to reflect the following: To Landlord at: PR Real Estate, LLC & Home Elite, Ltd, as Tenants in Common C/O Pintzuk Brown Realty Group, Inc 45 East City Line Avenue, #377 Bala Cynwyd, PA 19004 Article 42 is hereby DELETED. Exhibit D is hereby deleted in its entirety and replaced as follows: Tenant shall have the One (1) time right to terminate this Lease, by giving Landlord written notice no later then ninety (90) days prior to the end of the Second Lease Year which ends on December 31" , 2005. Time is of the Essence. Tenant: World Premiere Entertainment, LLC I - Kenneth Bosley Landlord: PR Real Estate, LLC & Home Elite Ltd, TIC BY: Pintzuk Brown Realty Group, Inc, Agent. R. Christopher Datz Director of Asset Management Services Sc',t by: WIX WENGER WEIDNER- 09/15/2004 11:39 FAX 717 795 1072 August 31, 2004 7172344224; 09/15/04 13:38; fetfax ##230;Page 4/5 BBNNYff WILLIMS INC la 007, ESTOPPEL LETTER RE: Confirmation of I-ease Agreement for Eastgate Shopping Center, Hampden Township, Cumberland County, Penns-yIYania Ladies and Gentlemen: At the request of Wesley Associates ("Landlord") the undersigned hereby certifies to you and agrees as follows recognizing that you will rely on the information contained herein: 1. The undersigned is the tenant under a lease with Landlord, as follows: Lease dated- June 1, 2004, and occupies the premises derniised hereunder. 2. The above lease as amended and/or assigned is in full force and effect and has not otherwise been amended, modified, supplemented or superseded, and together herewith constitutes the entire agreement between the undersigned and Landlord with respect to said premises. There is no other agreement (except for the agreements contained herein) between the undersigned, :a ,4,,the Landlord with respects to said premises or any other space at the above referenced property. 3. Neither the undersigned nor the Landlord is in default under the Lease. There is no defense, offset, claim or counterclaim by or in favor of the undersigned against Landlord under the Lease or against the obligation of the undersigned under the Tease. 4. The undersigned has not received notice and is not aware of any prior transfer, assignment. hypothecation or pledge by Landlord or any of the Landlord's interest in the Lease, except to you. . 5. The monthly base rent of $1,500.00 due under the lease has been paid through August 31, 2004, and all additional rent due under the Lease has been paid through August 31, 2004. 6. The tenant has a security deposit of $0.00 deposited with the Landlord. 7. There are no actions, voluntary or otherwise, pending or, to the best knowledge of the undersigned, threatened against the undersigned under the bankruptcy, reorganization, moratorium or similar laws of the United States, any state thereof or any other jurisdiction. 8. The undersigned has accepted possession, taker1 occupancy Of, and is conducting operations at the premises; the term of the Lease has commenced; the Surt)t by: WIX WENGER WEIDNER- 7172344224; 09115/04 13:39; fetFaX #230;'Page 5/5 09/15/2004 11:39 FAX 717 795 1072 BENNEIT WILLIAMS INC zoos undersigned has commenced the payment of rents for all space subject to the Lease; and the expiration of the lease is May 31, 2007. 9. All work to be performed by Landlord under the Lease has been completed in accordance with the Lease and has been accepted'6y the undersigned and all reimbursements and allowance due to the undersigned under the Lease in connection with any work has been paid in full. 10. The Tease contains no first right of refusal, option to expand, option to terminate, or exclusive business rights, except as follows: > Teh QNf J%c y 1'? l.e4st (*It CF(T1 ^k- 1,0 DAYS Wf.ir?MN ?JC?+? ce . sE? Ex41$1T <D) 11. Tenant has nbt entered into any sublease, assignment or any other agreement transferring any of its interest in the Lease or the Premises except as follows: LC A 5 . 12. Tenant has not generated, used, stored, spilled, disposed of, or released any hazardous substances at or in the Premises. "Hazardous Substances" means any fiaminable, explosive, toxic, carcinogenic, mutagenic, or corrosive substance or any flammable, explosive, toxic, carcinogenic, mutagenic, or corrosive substance or waste, including volatile petroleum products and derivatives and drycleaning solvents. To the best of Tenant's Imowledge, no asbestos or pplychlorinated biphenyl ('?CB") is located at, or in the Premises. The term "Hazardous Substances" does not include those materials which are technically within the definition set forth above but which are contained in pre- packaged office supplies, cleaning materials or personal grooming items which are sold for consumer or commercial use and typically used in other similar buildings or space. Very truly yours, World Premiere Home Lnte ' nment, LLC By:_ Name: Kenneth Basle Title ?• ?s t vc., F' F..1daw19313 . WESLEY ASSOCIATES$766 -Generd Waournent"l d Premler Home Entenalnment, LLC Estoppel.dac 9/2104 3:40 PM LEASE Between WESLEY ASSOCIATES, Landlord and WORLD PREMIERE HOME ENTERTAINMENT, LLC, Tenant TDBA BAM POW GAMING TABLE OF CONTENTS ARTICLE 1 - Premises .................................................................................................................................................. 1 ARTICLE 2 - Construction and Improvements ............................................................................................................. I ARTICLE 3 - Advertising Signs ................................................................................................................................... 2 ARTICLE 4 - Common Area ......................................................................................................................................... 2 ARTICLE 5 - Term ....................................................................................................................................................... 3 ARTICLE 6 - Rent and Late Payment Charge ............................................................................................................... 4 ARTICLE 7 - Interest .................................................................................................................................................... 5 ARTICLE 8 - Taxes and Assessments ........................................................................................................................... 5 ARTICLE 9 - Use and Operations ................................................................................................................................. 6 ARTICLE 10 - Utilities ................................................................................................................................................. 6 ARTICLE 11 - Assignment and Subletting ...............................................:................................................................... 7 ARTICLE 12 - Fire Insurance ....................................................................................................................................... 7 ARTICLE 13 - Increased Insurance Cost ...................................................................................................................... 8 ARTICLE 14 - Landlord's Right to Cure Tenant's Defaults .......................................................................................... 8 ARTICLE 15 - Liability Insurance and Indemnification ............................................................................................... 8 ARTICLE 16 - Waiver of Liability .............................................................................................................................10 ARTICLE 17 - Repair and Maintenance ..................................................................................................................... 10 ARTICLE 18 - Alterations .......................................................................................................................................... 12 ARTICLE 19 - Surrender of the Demised Premises .................................................................................................... 13 ARTICLE 20 - Waste or Nuisance .............................................................................................................................. 13 ARTICLE 21 - Governmental Regulations .................................................................................................................13 ARTICLE 22 - Warranties .................................... .,.................................................................................................... 13 ARTICLE 23 - Trade Fixtures ......................................................................................................................................14 ARTICLE 24 - Access of Landlord .............................................................................................................................14 -1 - ARTICLE 25 - Default by Tenant ...............................................................................................................................14 ARTICLE 26 - Damage or Destruction ....................................................................................................................... 18 ARTICLE 27 - Hazardous Substances ........................................................................................................................ 20 ARTICLE 28 - Eminent Domain ................................................................................................................................. 21 ARTICLE 29 - Subordination ..................................................................................................................................... 23 ARTICLE 30 - Relationship of Parties ........................................................................................................................ 24 ARTICLE 31 - Definitions .......................................................................................................................................... 24 ARTICLE 32 - Accord and Satisfaction ...................................................................................................................... 24 ARTICLE 33 - Quiet Enjoyment ................................................................................................................................. 24 ARTICLE 34 - Holding Over ...................................................................................................................................... 25 ARTICLE 35 - Recording ........................................................................................................................................... 25 ARTICLE 36 - Delays .................................................................................................................................................25 ARTICLE 37 - Captions .............................................................................................................................................. 25 ARTICLE 38 - Partial Invalidity and Construction ..................................................................................................... 26 ARTICLE 39 - Binding Effect .................................................................................................................................... 26 ARTICLE 40 - Arbitration .......................................................................................................................................... 26 ARTICLE 41 - Notices ................................................................................................................................................ 26 ARTICLE 42 - Commissions Due Real Estate Broker ................................................................................................ 27 ARTICLE 43 - Exhibits ............................................................................................................................................... 27 ARTICLE 44 - Entire Agreement ................................................................................................................................ 27 ARTICLE 45 - Security Deposit ................................................................................................................................. 28 ARTICLE 46 - Limitation Upon Landlord's Liability ................................................................................................. 28 ARTICLE 47 - Time of the Essence ............................................................................................................................ 28 ADDENDUM EXHIBITS A - SIGNAGE B - PERSONAL GUARANTY C - RESTRICTIONS TO SHOPPING CENTER D - ADDENDUM THIS AGREEMENT OF LEASE, made this _ day of , 2004, by and between WESLEY ASSOCIATES, having a place of business at 135 North George Street, York, Pennsylvania 17405, its successors or assigns (hereinafter called Landlord"), and World Premiere Home Entertainment, LLC t/d/b/a Bam Pow Gaming having a mailing address of 5140 East Trindle Road, Mechanicsburg, PA 17055 its successors or assigns (hereinafter called "Tenant"). WITNESSETH: (a) In consideration of the rents and.covenants herein set forth on the part of the Tenant to be paid, performed and observed, the Landlord does hereby lease the premises (hereinafter referred to as "Demised Premises") within the Eastgate Plaza (hereinafter referred to as the "Shopping Center") situated in Hampden Township, Cumberland County, Pennsylvania. (b) The Shopping Center consists of the land (and all improvements that are to be constructed thereon) as shown on Exhibit A attached hereto. (c) The purpose of Exhibit A is to show the location of the Demised Premises and the entrances and exits for-the Shopping Center. Landlord reserves the right, at any time, to relocate, modify, eliminate or add to the various buildings, stores and other improvements, whether or not shown on Exhibit A, provided that Landlord shall not materially interfere with access to the Demised Premises. (d) The Demised Premises consists of the retail space designated as Store 17, as shown on Exhibit A containing approximately 2,000 square feet, measured to the center line of all party or common walls, and to the exterior faces of all other walls. Tenant agrees to accept the Demised Premises in "AS IS" condition. All other fixtures, equipment and furnishings of any nature required in the conduct of the Tenant's business are to be furnished, erected and installed by the Tenant at its own expense. (a) All signage is subject to Townships and local municipalities approval. (b) Tenant shall have the right to incorporate its trade name or store identification within the area or areas provided for by Landlord; provided, however, that any such signs shall strictly conform in color, style, design and in all other respects to the criteria established by Landlord for the Shopping Center. No other exterior sign or advertising will be permitted by Tenant, outside of the Demised Premises or the Shopping Center. However, Landlord acknowledges the difference between "temporary point-of-sale material" and permanent advertising signs, and permission for this type of temporary advertising on glass area .of the store front is granted to Tenant, provided said advertising is in good taste and professional in appearance. Landlord shall approve all signs such approval not to be unreasonably withheld. (c) Approval for location and dimension of signs is as follows: (1) Front of building - See sign criteria. (a) All those portions of the Shopping Center not shown as building areas on Exhibit A shall be "Common Areas". Tenant shall have the right to use the Common Areas but Tenant's right to use the Common Area is not exclusive to Tenant, but shall be for the common use of Tenant and the other tenants and lawful occupants of the Shopping Center and their employees, agents, customers, licensees and invitees and parties with whom they do business. The Common Area shall also be for the location and maintenance therein of all the utilities, services and other installations serving the buildings in the Shopping Center and with Landlord's prior written permission for special promotional-type activities and events for the Shopping Center. Landlord, or its designee, and the other tenants and lawful occupants of the Shopping Center, shall also have the right to go over and on the Common Area with men and materials as reasonably required to construct, repair and alter any buildings in the Shopping Center, provided that such persons shall not thereby unreasonably interfere with Tenant's use of the Demised Premises. (b) Except as otherwise provided in this Lease, and as they may otherwise hereafter agree in writing, the parties hereto shall not: (1) Obstruct the free passage of vehicles to and from the entrances of the Shopping Center. (2) Interfere with the installations in the Common Areas which are for the service of the building and the Shopping Center. (c) Landlord agrees, as hereinafter set forth: - 2 - (1) To maintain and keep in good repair all portions of the Common Area, including, but not limited to any and all roads, driveways, curbs, culverts, drainage facilities, surfacing, landscaping, fences, gates, directional and Shopping Center signs, grading, paving marking of the parking area, plumbing systems, sewer and sewage disposal lines, water supply lines, sprinkler lines and other requisite services and utility lines, pipes and installations of every kind. (2) To keep the Common Area open for use and adequately lighted for a period of at least thirty (30) minutes. prior to and until (30) minutes subsequent to the operating hours of the Shopping Center. (3) To keep the sidewalks and curbs, adjacent to and immediately in front of the Demised Premises and throughout the Shopping Center, reasonably free from accumulated snow, ice and refuse and to comply with all governmental requirements respecting same. (d) The Landlord shall have the right to make changes, additions, alterations, or improvements in the Common Area, provided that, other than temporary inconvenience necessitated by construction activities, there shall be no unreasonable obstruction of Tenant's right of access to the Demised Premises or any unreasonable interference with Tenant's use thereof. (a) The term and rental of this Lease shall be for a period of three (3) years, and shall commence upon the earlier of: (1) Thirty (30) days after possession of the Demised Premises have been delivered to Tenant; or (2) The date Tenant shall first open its store for business. (b) An instrument setting forth the date of commencement of the term of this Lease shall be prepared by Landlord and executed by Tenant and Landlord. (c) The Demised Premises shall be accepted by Tenant notwithstanding the existence of relatively minor "punch list" items which will not prevent the Tenant from operating its business in a normal manner. Any such "punch list" items shall continue to be Landlord's responsibility to complete as soon as possible. (d) A "lease year," as herein referred to, shall then consist of that full twelve (12) month period commencing on the first day of the first full month during which this Lease is in full force and effect and of each full twelve (12) month period thereafter. If the commencement date of this Lease, as provided as aforesaid, is a day not the first day of the month, the first lease - 3 - year shall consist of the remainder of that first month and of the first full twelve (12) months thereafter. (e) If the Landlord notifies the Tenant that the Demised Premises is ready for possession and the Demised Premises is ready for possession, and the Tenant fails to take possession and to open the Demised Premises for business fully fixtured, stocked and staffed within sixty (60) days from the date of said notice then the Landlord may, in addition to any and all remedies herein provided, at its option, collect not only the minimum rent herein provided, but additional rent at the rate of one-fifteenth (1115) of the fixed minimum monthly rental per day for each and every day that the Tenant shall fail to commence to do business as herein provided. Said additional rental shall be deemed to be in lieu of any percentage rent that might have been earned during such period of Tenant's failure to open. (a) Tenant agrees to pay Landlord, each month, during the term hereof, a Fixed Monthly Rental for the Demised Premises, as follows: Rental Year Monthly Year 1 $1,500.00 $18,000.00 2 $1,583.33 $19,000.00 3 $1,666.67 $20,000.00 in advance without offset or demand. Payment shall be made to the Landlord at the place hereinafter specified for the giving of notices to Landlord or at such other places as Landlord shall designate in writing. (b) The Minimum Annual Rent shall be the product of the Fixed Monthly Rental, as adjusted, multiplied by twelve (12). Following any adjustment for Rental Escalation, the Fixed Monthly Rental shall be the quotient of the Minimum Annual Rent divided by twelve (12). (c) In the event the commencement date of this Lease is a day other than the first day of the month, then in that event, the rent for the balance of that month shall be determined by multiplying the aforementioned monthly rental by the fraction, the numerator of which is the number of days remaining in that month, and the denominator of which is the total number of days in that month. The result of the above computation shall be paid to the Landlord on or prior to such commencement date. (d) In addition to any other rights or remedies given to Landlord, in the event Tenant fails to make payment of its regular monthly rental payment by the fifth day of the month, or fails to make any payment when due of additional rent due hereunder, Tenant shall pay to Landlord the additional sum of f the amount due as a late payment charge, - 4 - which late payment charge shall become additional rent. (e) The first rental year of this Lease shall commence on the first day of the tenn and shall end at the close of the twelfth full calendar month of the Tenn; thereafter, such rental year shall consist of periods of twelve (12) full calendar months commencing with each anniversary of the first day of the first full calendar month of the term. (f) All rents payable and all statements deliverable by Tenant to Landlord under this Lease shall be paid and delivered to WESLEY ASSOCIATES, CIO BENNETT WILLIAMS, INC., 135 NORTH GEORGE STREET, 4th FL, YORK, PA 17401. Wherever in this Lease there is a provision that Tenant shall be liable for the payment of any sum to Landlord, together with interest thereon, or whenever Tenant shall fail to pay any sum when due, such sum shall bear interest until paid at a rate equal to the greater of: (1) The prime rate of interest charged by the York Bank & Trust Company of York, Pennsylvania, or its successors, plus two percent (2%0); or (2) per annum; but, in no event shall the rate be greater than the legal rate of interest which may be charged to borrowers of the same character as Tenant. (a) All Real Estate Taxes, as hereinafter defined, on the land and the buildings in the Shopping Center shall be paid by the Landlord. (b) Tenant shall pay any and all taxes, assessments or charges which may be levied upon or attributable to goods or merchandise or fixtures or other items and improvements placed upon and in the Demised Premises by Tenant. (c) The term "Real Estates Taxes" shall mean and include all real estate taxes, assessments, water and sewer rents and other governmental impositions and charges of every kind and nature whatsoever, special as well as regular, extraordinary as well as ordinary, foreseen and unforeseen, and each and every installment thereof, which shall or may during the Lease term be levied, assessed, imposed, become due and payable, or liens upon, or arising in connection with the use, rental, occupancy or possession of, or growing due and payable out of, or for the Shopping Center or any part thereof, on any land, building, other improvements, or any leasehold interest thereto, or any payments made by Landlord in lieu of any of the foregoing. Such tern shall not include any charge, such as water meter charges or any sewer rent based thereon, which is measured by the consumption by the actual user of service for which the charge is made. Whether or not the Landlord shall take the benefit of the provisions of any statute or - 5 - ordinance permitting any assessment for public betterments or improvements to be paid over a period of time, Landlord shall, nevertheless, be deemed to have taken such benefit so that the "Real Estate Taxes" shall include only the current annual installment of any such assessment and the interest on unpaid installments. (a) Tenant shall use and occupy the Demised Premises solely for the use of an electronic gaming center and related uses, trading and doing business under the name of Barn Pow Gaming or such other trade name as Landlord may approve in writing. (b) Tenant shall operate its business in all of the Demised Premises continuously, actively and diligently during the entire term of this Lease and shall at all times keep the Demised Premises fully equipped and fixtured and shall maintain a full inventory of merchandise.-4-onant .] 11,11 1 ?Pn t a rlPmiePr? prPmic.__PS,^,m°:' fr r 1, ,?„d 7 a_t. a Fl l?r.r?_+1, 1 ff-a2t1 ?A _?_ t. -vLTui:...uu KLl\L ? J a ?0 /?? _ ,., ruc ary ?yS anrj 1,--' -igr +r?riv v 'a{ gl}? e-14 Jr. T-gnh,_PY+,mharlan?l b.e_uitenantablP by rea? so firms-cater rrrra Tenant shall use for clerical offices or other non-selling purposes only such space in the Demised Premises as is from time to time reasonably required for conduct of Tenant's business at the Demised Premises. (c) Without the prior written approval of Landlord, in Landlord's sole discretion, Tenant shall not display or sell goods or merchandise in the Common Areas or otherwise outside of the Demised Premises. (a) The Landlord agrees that, during the term of this Lease or any extensions thereof, the Demised Premises shall, at all times, be connected to the electric, gas, water and sewer lines or systems, as applicable, serving the Shopping Center. (b) Landlord shall not be liable to Tenant for the failure of any of the above utility services. However, Landlord agrees, in the event of any suspension or failure of service, to proceed with all due diligence to restore or cause the restoration of such services as soon as is reasonably practical under the circumstances. Tenant will not hold Landlord responsible if the gas to the Demised Premises becomes unavailable, nor will Tenant hold Landlord responsible for any equipment conversion or installation costs caused by such unavailability of gas. (c) Landlord agrees that the connections of the electric, gas, water and sewer lines will be brought to the Demised Premises to the points designated, in accordance with Exhibit B. (d) Tenant shall promptly pay, as the same becomes due, all bills for telephone services, gas, electricity, fuel, oil, water, sewer and similar utilities consumed on or applicable to the Demised Premises. - 6 - (a) Tenant shall not, during the tern of this Lease or extension thereof, assign, transfer, mortgage, pledge or otherwise encumber this Lease or the leasehold estate created hereby or any part of Tenant's title hereto or interest herein, in whole or in part, nor shall Tenant sublease the Demised Premises, in whole or in part, without the prior written consent of Landlord, in Landlord's sole discretion. In the event of any such assignment or subletting with the consent of Landlord, Tenant will nevertheless remain liable for the performance of all the terms, covenants and conditions of this Lease and, in addition, will require any assignees or sublease to execute and deliver to Landlord an assumption of liability agreement in form acceptable to Landlord as a condition precedent to the assigning or subletting. Consent by Landlord to any assignment or subletting shall not constitute a waiver of the requirement of such consent to any-subsequent assignment or subletting. Any assignment by operation of law, attachment or assignment for the benefit of creditors shall, at Landlord's option, be inoperative. An assignment within the meaning of this paragraph shall be deemed to include one or more sales or transfers, by operation of law or otherwise, or creation of new stock, by which an aggregate of more than fifty percent (50%) of Tenant's stock, if Tenant is a corporation, of the ownership interest of Tenant, if Tenant is another form of entity, shall be vested in a party or parties who are non-stockholders or non-owners as of the date hereof. (b) The interest of the Landlord herein may be assigned in whole and also in one or more parts. In the case of any such assignment, the Landlord shall advise the Tenant of the name or names of the assignee or assignees, and Landlord shall have no liability hereunder from and after the effective date of any such assignment, except for obligations which may have theretofore accrued. (a) Landlord agrees throughout the term of this Lease and any extensions thereof to carry fire and extended insurance coverage on the Demised Premises in an amount not less than the actual replacement value without deducting physical depreciation on the building, but exclusive of costs of excavation, foundations and footings below the underside of the lowest floor, if excluded by the policy, to the extent of Landlord's work as set forth in this Lease. - (b) Tenant agrees throughout the term of this Lease and extensions thereof to carry fire and extended insurance coverage in an amount equal to the replacement cost of fixtures, normal inventory and leasehold improvements in the Demised Premises, including, but not limited to any improvements installed at Tenant's expense. Such insurance may be included in a blanket policy or policies. - 7 - Tenant shall comply with all laws and ordinances and recommendations of the Association of Fire Underwriters and will not do, nor permit anything to be done, nor neglect to do anything, nor bring nor keep nor permit anything to be brought into or kept on the Demised Premises which shall cause an increase beyond normal premiums that may be charged during the term of this Lease on any public liability, casualty, fire and extended coverage insurance carried on the Demised Premises or the Shopping Center. If, by any reason of any act or omission of Tenant, the insurance premiums are increased beyond normal premiums, Tenant shall pay as additional rent hereunder the amount of such increased premiums. A schedule issued by the organization establishing the insurance rate on the Shopping Center, showing the component of such rate, shall be conclusive evidence of the amount of such increased premiums. ARTICLE 14 - Landlord's Right to Cure Tenant's Defaults Tenant agrees that, if Tenant fails to make any repairs or do any work required of the Tenant by the provisions of this Lease, or if Tenant shall in any other respect fail to perform any covenantor agreement in this Lease contained on the part of the Tenant to be performed, then, and in any such event, after the continuance of any such failure or default for ten (10) days after notice in writing thereof is given by the Landlord to the Tenant, notwithstanding any delay or forbearance in giving such notice, Landlord may cure such defaults, all on behalf of and at the expense of the Tenant, and shall have a right of entry into the Demised Premises for such purposes. Landlord may further do all necessary work and make all necessary payments in connection therewith, including, but not limiting the same, to the payment of any attorney's fees and costs and charges of or in connection with any legal action which may have been brought. Tenant agrees to pay to Landlord forthwith any amount so paid by Landlord. All sums charged to Tenant by Landlord hereunder shall be indebtedness of Tenant to Landlord and shall become due as additional rents. (a) Throughout the term of this Lease and any extensions thereof, Tenant shall obtain, maintain and pay for policies of comprehensive general liability (including products liability) insurance covering the Demised Premises, the business operated by Tenant in and from the Demised Premises and the contractual liability of Tenant under this Lease in form and with insurers satisfactory to Landlord in amounts required by Landlord's mortgagees, from time to time, but not less than Five Hundred Thousand ($500,000.00) Dollars with respect to property damage, Five Hundred Thousand ($500,000.00) Dollars with respect to death or personal injuries to any one (1) person, and One Million ($1,000.000.00) Dollars arising out of any one (1) occur- rence. Such insurance may be included in a blanket policy or policies. (b) All insurance policies required to be maintained by Tenant under this Lease shall be with insurance companies licensed to do business in the State of Pennsylvania and satis- - 8 - factory to Landlord and shall protect both Landlord, Landlord's mortgagees and Tenant, as their respective interests may appear. Certificates of such insurance shall be delivered to Landlord a minimum of thirty (30) days prior to possession of the Demised Premises by Tenant with renewals thereof delivered to Landlords a minimum of thirty (30) days prior to the expiration of any such policies. If requested to do so, Tenant shall also provide Landlord with copies of the pertinent portions of all such policies and shall also permit Landlord to examine the original policies. Each policy and certificate evidencing the same shall contain an agreement by the insurer that such policy shall not be cancelled or modified without ten (10) days' written notice to Landlord and that no act or omission of Tenant shall invalidate the interest of Landlord under such insurance. If Tenant fails to obtain and maintain any such insurance or to deliver any of the certificates as required in this Lease, Landlord may, in addition to any other remedy under this Lease, procure such insurance at the expense of Tenant and pay the cost thereof. Such cost shall be deemed additional rent and shall be payable by Tenant to Landlord immediately upon demand, together with interest until paid. (c) During the term of this Lease or any extension hereof, Tenant hereby agrees to indemnify and hold Landlord and Landlord's mortgage lenders harmless from any and all claims and demands arising out of the negligent acts or omissions of Tenant, its officers and employees, and resulting in the loss of or damage to property or for injury to or death of any person while in, upon or about said Demised Premises. (d) Landlord covenants and agrees that it shall maintain a comprehensive policy of general liability insuring Landlord, Landlord's mortgagees and Tenant, as additional insured, against any liability occasioned by accident on or about any portion of the Common Area of the Shopping Center, which insurance shall protect the interest of Tenant against any liability whatsoever, except such as shall arise out of Tenant's agents, employees or servants, licensees or invitees, or any contract of Tenant, or by default of Tenant under this Lease. The aforesaid liability policy shall be written by good and solvent insurance companies duly licensed to do business in the State of Pennsylvania and shall be in amounts not less than Five Hundred Thousand ($500,000.00) Dollars with respect to property damages, One Million Dollars ($1,000,000.00) Dollars with respect to death or personal injury to any one (1) person, and Five Million ($5,000,000.00) Dollars with respect to death or personal injuries out of any one (1) occurrence. Such insurance may be carried under a blanket policy covering other locations of Landlord, provided the protection and coverage afforded Tenant is not reduced thereby. Landlord agrees to deliver to Tenant at least ten (10) days prior to the time such liability insurance is first required to be carried by Landlord and, thereafter, at least thirty (30) days prior to the expiration of any such policy, either a duplicate original or a certificate of all policies procured by Landlord in compliance with its obligations hereunder. - 9 - (a) Notwithstanding anything in.this Lease to the contrary, Tenant shall not be liable to Landlord or to any insurance company insuring Landlord for any loss or damage to the Demised Premises or to any improvement or property located within the entire Shopping Center which was covered by fire and extended coverage insurance even though such loss or damage may have been occasioned by the negligence of Tenant, its agents or employees. (b) Conversely, anything in this Lease to the contrary notwithstanding, Landlord shall not be liable to Tenant or any insurance company insuring Tenant for any loss or damage to any property of Tenant located within the entire Shopping Center which was or could have been covered by fire and extended coverage insurance even though such loss or damage may have been occasioned by the negligence of Landlord or its agents or employees. (c) The parties hereto agree that their policies will include such waiver, clause or endorsement so long as available and so long as the other party pays such extra cost. If extra cost shall be chargeable therefore, each party shall advise the other of the amount of the extra cost, and the other party, at its election, may pay the same, but shall not be obligated to do so, in which case there shall be no waiver by either party. (a) Tenant shall at all times maintain the Demised Premises (including the inside and outside of all exterior entrances, store front and the glass and moldings in the doors and windows) and all partitions, doors, fixtures, equipment and appurtenances thereof, in good order, condition and repair and including reasonable periodic painting, making proper replacements when necessary, all at its own expense, except for structural portions of the roof, foundation, exterior walls, structural floors, ceiling supports, all outside electrical service to the building and the outside portion of the water and sewer lines, which shall be maintained by Landlord; but, if Landlord is required to make repairs by reason of Tenant's willful or negligent acts or omissions to act, the cost of such repairs shall be paid by Tenant and shall thereafter become due as additional rent. (b) All electrical and plumbing systems and fixtures, heating and air conditioning systems shall be maintained by Landlord, except that Tenant shall be responsible for ordinary maintenance of HVAC, plumbing and electrical systems, such as replacement of filters and seasonal maintenance. Notwithstanding anything herein to the contrary, Landlord shall be responsible for broken glass caused by the settling of the building for the first lease year. (c) Tenant shall maintain the Demised Premises at its own expense in a clean, orderly and sanitary condition, free of insects, rodents, vermin and other pests and shall not permit undue accumulation of garbage, trash, rubbish and other refuse, but shall remove the same at its own expense and shall keep such refuse in proper containers. Landlord shall provide and designate a place (reasonably convenient to the Demised Premises) and manner for picking up refuse and garbage, and Tenant shall use such place and avail itself of such refuse disposal - 10 - service and shall reimburse Landlord for Tenant's proportionate share of the costs thereof. (d) Tenant further covenants that Tenant: (1) Will promptly replace at its own expense with glass of like kind and quality, and plate glass, door or window glass of the Demised Premises which may become cracked or broken except as provided in Article 22(b) above. (2) Will not use or permit the use of any apparatus of sound reproduction or transmission, or any musical instrument, in such a manner that the sound so reproduced, transmitted or produced shall be audible beyond the confines of the Demised Premises. (3) Will keep all mechanical apparatus free of vibrations and noise which may be transmitted beyond the confines of the Demised Premises. (4) Will not, without the consent in writing of Landlord, place or maintain any merchandise or other articles in any vestibule or entry of the Demised Pre- mises, on the walkways adjacent thereto, or elsewhere on the exterior thereof. (5) Will keep the Demised Premises at a temperature sufficiently high to prevent the freezing of water and pipes and fixtures. (6) Will not use the plumbing facilities for any purpose than that for which they are constructed and will not permit any foreign substance of any kind to be thrown therein. The expense of repairing any stoppage, seepage or damage, whether occurring on or off the Demised Premises, resulting from a violation of this provision by Tenant or Tenant's employees, agents or invitees, shall be bome by Tenant. All grease traps and other plumbing traps shall be kept clear and operable by Tenant at Tenant's own cost and expense. (7) Will, notwithstanding anything in this Lease to the contrary, be responsible for all repairs and replacements to the Demised Premises necessitated by a burglary or attempted burglary, or any illegal forcible entry into the Demised Premises. (8) Will comply with all laws and ordinances and all valid riles and regulations of governmental authorities. (9) Will not receive or ship articles of any kind except through facilities provided or designated for that purpose by Landlord. Front door receiving is approved by Landlord. (10) Will conduct its business in the Demised Premises in all respects in a dignified manner in accordance with standards of operation of such type of business. - 11 - (11) Will comply promptly with all reasonable rules and regulations established by Landlord for all tenants of the Shopping Center. (e) If Tenant refuses or neglects to repair, replace and maintain property as required hereunder as soon as reasonably possible after written notice from Landlord to do so, Landlord may undertake the same without liability of Landlord to Tenant for any loss or damages that may accrue to Tenant's merchandise, fixtures or other property or to Tenant's business by reason thereof, provided that Landlord acts reasonably in effecting such repair, replacement and/or maintenance, Tenant shall pay, upon demand, as additional rent, Landlord's cost and expense in effectuating the same upon presentation of bills therefor, plus fifteen percent (15%) for overhead and supervision. Said bills shall include interest on said cost and expense from the date of completion by Landlord. (a) Tenant may make any and all interior nonstructural alterations or interior nonstructural improvements to the Demised Premises at its sole cost and expense, provided that any such alterations shall be made in a good, workmanlike manner and not weaken the structure thereof, and Tenant, before commencing such work, shall take appropriate steps to comply with all lawful requirements, including, but not limited to procuring any and all required governmental permits, and shall secure from its general contractor and properly file a valid stipulation against liens (or waiver of liens) to avoid subjecting the property of Landlord or any portion of the Demised Premises or Shopping Center to any lien for labor, materials or equipment supplied to any part thereof. (b) Tenant shall not have the right to make any other alterations, additions or improvements to the Demised Premises without first obtaining, in each instance, the prior written consent of Landlord, which consent (except to external alterations, additions or improvements) may not be unreasonably withheld. (c) Tenant shall not pen-nit any mechanic's or other lien or claim for lien or notice in respect thereto to be filed against the Demised Premises or the Shopping Center or any fixtures, equipment or furnishing contained therein. If any such lien or claim be made or filed, Tenant shall, within ten (10) days after notice of the filing thereof, cause such said lien, notice or claim for lien to be effectively removed and discharged of record; provided, however, that Tenant shall have the right to contest the amount or validity, in whole or in part, of any such lien, notice or claim by appropriate proceedings, but, in any event, Tenant shall promptly bond such lien, notice or claim with a surety company satisfactory to Landlord and shall prosecute such proceed- ings with all due diligence and dispatch. If Tenant fails to so discharge or bond such lien, Landlord may, at its election, remove or discharge such lien, notice or claim by paying the full amount thereof, or otherwise, and without any investigation or contest of validity thereof, and Tenant shall pay to Landlord, upon demand, as additional rent, the amount paid by the Landlord, including Landlord's costs, expenses and counsel fees. - 12 - At the expiration of, or sooner termination of this Lease, Tenant shall peaceably surrender the Demised Premises in the same condition as they are required hereby to be kept by Tenant, excepting normal wear and tear and any alterations and improvements permitted by this Lease or effected with Landlord's consent. At such time, Tenant shall surrender all keys for the Demised Premises to Landlord at the place then fixed for payment of rent and shall inform Landlord of all combinations on locks, safes and vaults, if any, in the Demised Premises. Tenant shall in accordance with Article 28 of this Lease, remove all its trade fixtures from the Demised Premises and shall repair any damages to the Demised Premises caused thereby not later than the time hereby fixed for such surrender. Tenant shall not commit or suffer to be committed any waste upon the Demised Premises. Tenant shall not commit or suffer to be committed any nuisance or other act which may disturb the quiet enjoyment of any other Tenant or occupant of the Shopping Center, nor shall it engage in any activity which may reasonably be expected to attract to the Demised Premises or to the Shopping Center any person who might reasonably be objectionable to, disturb the operation or decorum of or otherwise cause a disturbance in the Shopping Center. Tenant shall, at Tenant's cost, comply promptly with and observe all requirements of all federal, state and local governmental authorities having jurisdiction over the Demised Premises or the use and occupancy thereof or the operation of Tenant's business. Landlord will pass on to Tenant all warranties applicable to the Demised Premises and the improvements located thereon. Landlord further agrees to unconditionally guarantee workmanship and material for the first year following Tenant's possession of the Demised Premises. - 13 - Trade fixtures shall remain the property of Tenant and shall be removed at the expiration or sooner termination of the term of this Lease or any renewal or extensions thereof, provided Tenant shall not then be in default under any covenant or agreement contained in this Lease and that Tenant shall have promptly repaired any damage to the Demised Premises caused by such removal. If Tenant fails to remove any such trade fixtures upon expiration or sooner termination of this Lease, such trade fixtures shall, at Landlord's election, be deemed abandoned and shall become the property of Landlord, or may be removed by Landlord at Tenant's expense, which expense shall be additional rent hereunder. Lighting fixtures, heating and air conditioning equipment, plumbing and electrical systems and fixtures and floor covering shall not be deemed to be trade fixtures whether installed by Tenant or by anyone else and shall not be removed from the Demised Premises, but shall upon installation become the property of Landlord without any compensation to Tenant. Landlord and/or its designee(s) may enter the Demised Premises during reasonable times, from time to time, for the purpose of examining or exhibiting the same or to make necessary repairs or for the reasonable exercise of any rights granted or reserved to Landlord pursuant to the terms of this Lease, provided that, so long as Tenant is not in default hereunder, the making of repairs to the Demised Premises shall not unreasonably interfere with Tenant's use of the Demised Premises. Tenant will allow to have placed upon the Premises at any time "For Sale" signs and, during the last three (3) months of the term of this Lease, "To Rent" signs and will not interfere with the same. (a) Events of Default. The following shall be considered "Events of Default": (1) The failure of Tenant to pay, when due, any installment of rent or additional rent or any other sum payable by Tenant under this Lease, which failure shall continue unremedied by Tenant for a period of five (5) days after written notice thereof shall have been given. to Tenant by Landlord; provided, however, that, if Tenant defaults in making its payments of rent or additional rent requiring Landlord's written notice on three (3) occasions within any twelve (12) month period, then, at Landlord's election, such third (or subsequent) default shall not be capable of cure by Tenant. (2) The failure to perform any terms, covenants or conditions of this Lease or the violation or breach thereof by Tenant, which failure, violation or breach shall continue unremedied by Tenant for a period of ten (10) days after written notice thereof shall have been given to Tenant by Landlord, or for such additional - 14 - period as may be necessary to remedy such failure, violation or breach with due diligence. (3) The closing by Tenant of the Demised Premises for a period in excess of five (5) consecutive business days, unless such closing shall be caused by labor disputes, fire, condemnation or other causes beyond the control of Tenant except for Tenant may close for 7 consecutive days once a year for vacation. (4) The abandonment by Tenant of the Demised Premises or the removal or attempted removal by Tenant, except in the ordinary course of business, of any goods or property from the Demised Premises without having paid and satisfied Landlord in full for all rent and other charges then due or that may thereafter become due until the expiration of the term of this Lease. (5) The insolvency of Tenant or the making of an assignment for the benefit of creditors, or the filing by Tenant of a petition in bankruptcy or a bill in equity or other proceedings for the appointment of a receiver for Tenant, or the filing against Tenant of such petition or bill which is not dismissed, or the commencement of such proceedings which are not discharged within forty-five (45) days, or the institution by Tenant of proceedings for reorganization or for the composition or arrangement with creditors under any state or federal law, or an assignment of this Lease by operation of law, or the sale or levy upon the real or personal property of Tenant by any sheriff, marshal or constable or other autho- rized officer. (b) Landlord's Remedies. Upon the occurrence of an Event of Default by the Tenant, in addition to any other rights or remedies that Landlord may have under this Lease or at law or in equity, Tenant covenants and agrees that Landlord shall have the following rights: (1) To accelerate the whole or any part of the rent for the entire unexpired balance of the term of this Lease, as well as all other charges, payments, costs and expenses herein agreed to be paid by Tenant, and any rent or other charges, payments, costs and expenses if so accelerated shall, in addition to any and all installments of rent already due and payable and in arrears and/or any other charge or payment herein reserved, included or agreed to be treated or collected as rent and/or any other charge, expense or cost herein agreed to be paid by Tenant which may be due and payable and in arrears, be deemed due and payable as if, by the terms and provisions of this Lease, such accelerated rent and other charges, payments, costs and expenses were on that date payable in advance. (2) To enter the Demised Premises and without further demand or notice proceed to distress and sale of goods, chattels and personal property there found, to levy the rent and/or other charges herein payable as rent, and Tenant shall pay all costs and officers' commissions, including watchmen's wages and sums chargeable to Landlord, and further including the five percent (5%) chargeable by the Act of Assembly as commissions to the constable or other person making the - 15 - levy, and, in such case, all costs, officers' commissions and other charges shall immediately attach and become part of the claim of Landlord for rent, and any tender of rent without said costs, commissions and charges made, after the issuance of a warrant of distress, shall not be sufficient to satisfy the claim of Landlord. (3) To reenter the Demised Premises and remove all persons and all or any property therefrom, either by summary dispossess proceedings or by any suitable action or proceeding at law, or by force or otherwise, without being liable to indictment, prosecution or damages therefore, and repossess and enjoy the Demised Premises, together with all additions, alterations and improvements. Upon recovering possession of the Demised Premises by reason of or based upon or arising out of a default on the part of Tenant, Landlord may, at Landlord's option, either terminate this Lease or make such alterations and repairs as may be necessary in order to relet and/or operate the premises or any part or parts thereof, either in Landlord's name or otherwise, for as term or terms which may at Landlord's option be less than or exceed the period which would otherwise have constituted the balance of the tenn of this Lease to such person or persons as may in Landlord's discretion seem best; upon each such reletting, all rents received by Landlord from such reletting shall be applied: first, to the payment of any costs and expenses of such reletting, including brokerage fees and attorney's fees and all costs of such alterations and repairs; second, to the payment of rent due and unpaid hereunder; and third, to the payment of any indebtedness other than then rent due hereunder from Tenant to Landlord; and the residue, if any, shall be held by Landlord and applied in payment of future rent as it may become due and payable hereunder. If such rentals received from such reletting during any month shall be less than that to be paid during that month by Tenant hereunder, Tenant shall pay any such deficiency to Landlord. Such deficiency shall be calculated and paid monthly. No such reentry or taking possession of the Demised Premises or the making of alterations and/or improvements thereto or the reletting thereof shall be construed as an election on the part of Landlord to terminate this Lease unless written notice of such intention be given to Tenant. Landlord shall in no event be liable in any way whatsoever for failure to relet the Demised Premises or, in the event that the Demised Premises or any part or parts thereof are relet, for failure to collect the rent thereof under such reletting. Tenant, for Tenant and Tenant's successors and assigns, hereby irrevocably constitutes and appoints Landlord as its agent to collect the rents due and to become due under all subleases of the Demised Premises or any parts thereof without in anyway affecting Tenant's obligation to pay any unpaid balance of rent due or to become due hereunder. Notwithstanding any such reletting without termination, Landlord may at any time thereafter elect to terminate this Lease for such previous breach. (4) To cure any default by Tenant at Tenant's cost. If Landlord at any time, by reason of Tenant's default, pays any sum or does any act that requires the payment of any sum, the sum paid by Landlord shall be due immediately from Tenant to Landlord at the time the sum is paid shall be additional rent. - 16 - (5) To terminate this Lease and the tern hereby created without any right on the part of Tenant to waive the forfeiture by payment of any sum due or by other performance of any condition, tern or covenant broken, whereupon Landlord shall be entitled to recover, in addition to any and all sums and damages for violation of Tenant's obligations hereunder in existence at the time of such termination, damages for Tenant's default in an amount equal to the amount of the rent reserved for the balance of the term of this Lease, as well as all other charges, payments, costs and expenses herein agreed to be paid by Tenant, all and expenses herein agreed to be paid by Tenant, all discounted at the rate of nine percent (9%) per annum to their then present worth, less the fair rental value of the Demised Premises for the remainder of said term, also discounted at the rate of nine percent (9%) per annum to its then present worth, all of which amount shall be immediately due and payable from Tenant to Landlord. (6) If Tenant shall default in the payment of the rent herein reserved or in the payment of any other sums due hereunder by Tenant, Tenant hereby authorizes and empowers any Prothonotary or attorney of any court of record to appear for Tenant in any and all actions which may be brought for said rent and/or said other sums and/or to sign for Tenant an agreement for entering in any competent court an amicable action or actions for the recovery of said rental and/or other sums; and, in said suits or in said amicable action or actions, to confess judgment against Tenant for all or any part of said rental and/or said rental and/or said other sums, including, but not limited to the amounts due from Tenant to Landlord under Article 30(b)(1), (2), (3), (4) and/or (5), and for interest and costs, together with any attorney's commission for collection of ten percent (10%). Such authority shall not be exhausted by one exercise thereof, but judgment may be confessed as aforesaid from time to time as often as any of said rental and/or other sums shall fall due or be in arrears, and such powers may be exercised as well after the ex- piration of the initial term of this Lease and/or during any extended or renewal term of this Lease and/or after the expiration of any extended or renewal tern of this Lease. (7) When this Lease and the term or any extension or renewal thereof shall have been terminated on account of any default by Tenant hereunder, and also when the term hereby created or any extension or renewal thereof shall have expired, it shall be lawful for any attorney of any court of record to appear as attorney for Tenant, as well as for all persons claiming by, through or under Tenant, and to sign an agreement for entering in any competent court an amicable action in ejectment against Tenant and all persons claiming by, through or under Tenant and therein confess judgment for recovery by Landlord of possession of the Demised Premises, for which this Lease shall be its sufficient warrant; thereupon, if Landlord so desires, an appropriate writ of possession may issue forthwith without any prior writ or proceeding whatsoever, and provided that, if for any reason after such action shall have been commenced, it shall be deter- mined that possession of the Demised Premises remain in or be restored to - 17 - Tenant, Landlord shall have the right for the same default and upon any subsequent default or defaults, or upon the termination of this Lease or Tenant's right of possession as hereinbefore set forth, to bring one or more further amicable action or actions as hereinbefore set forth to recover possession of the Demised Premises as hereinbefore provided. (8) In any amicable action of ejectment and/or for rent and/or other sums brought hereon, Landlord shall first cause to be filed in such action an affidavit made by Landlord or someone acting for Landlord, setting forth the facts necessary to authorize the entry of judgment, of which facts such affidavit shall be prima facie evidence, and, if a true copy of this Lease (and of the truth of the copy such affidavit shall be sufficient evidence) shall be filed in such suit, action or actions, it shall not be necessary to file the original as a warrant of attorney, any rule of court, custom or practice to the contrary notwithstanding. (9) No right or remedy herein conferred upon or reserved to Landlord is intended to be exclusive of any other right or remedy herein or by law provided, but each shall be cumulative and in addition to every other right or remedy given herein or now or hereafter existing at law or in equity or by statute. (10) Tenant hereby waives and releases all errors and defects which may intervene in the Landlord's exercise of any of its remedies hereunder, including the summary remedies. Tenant further waives the right of inquisition on any real estate levied on, and Tenant voluntarily condemns the same and consents to an immediate execution upon any judgment obtained by Landlord. Tenant also waives and releases all relief from any and all appraisement, stay or exemption law of any state now in force or hereafter enacted. Tenant waives any notice to quit required by any law now in force or hereafter enacted. (11) In case suit shall be brought for recovery of possession of the Demised Premises, for the recovery of rent or any other amount due under the provisions of this Lease, or because of the breach of any other covenant contained herein on the part of Tenant to be kept or performed, and a breach shall be established, Tenant shall pay to Landlord all expenses incurred therefor, including reasonable attorney's fees. (a) Notice of namaage.. If any part of the Demised Premises shall be damaged or destroyed by fire or other casualty, Tenant shall give prompt notice thereof to Landlord. (b) Damage or 1 st ation to the Demised Premises. Subject to the requirements of Landlord's mortgagees: (1) If the Demised Premises or any portion thereof are damaged or - 18 - destroyed by fire or other casualty but are not hereby rendered wholly untenantable, Landlord shall, at its own expense and to the extent of Landlord's work as set forth in this Lease, cause such damage to be repaired. (2) If the Demised Premises shall be rendered wholly untenantable by reason of such occurrence, Landlord shall promptly, at its own expense, cause such damage to be repaired to the extent of Landlord's work, as set forth in this Lease; provided, however, Landlord shall have the right, to be exercised by notice in writing to Tenant within sixty (60) days from and after such occurrence, to elect not to repair or reconstruct the Demised Premises, and, in such event, this Lease shall cease as of the date of such notice, and Landlord and Tenant shall each thereupon be released from any obligation or liability thereafter accruing in respect of or arising out of this Lease. Except as herein provided, there shall be no obligation on Landlord to repair or rebuild in case of fire or other casualty. (3) Unless Landlord shall so terminate this Lease, Tenant shall promptly restore and replace all fixtures and improvements on the Demised Premises (except those included in Landlord's work), including, but not limited to those installed and made by Tenant, and shall apply the proceeds of all fire and extended coverage insurance maintained by Tenant as required by this Lease to such restoration and replacement. (c) Damage or Destnirlion to the Shopping Center. (1) If, in the opinion of Landlord, the building of which the Demised Premises is a part, or if the Shopping Center is substantially damaged or destroyed by fire or other casualty (whether or not the Demised Premises are affected), Landlord may terminate this Lease by written notice delivered to Tenant within sixty (60) days after the dates of such occurrence. If Landlord does so terminate this Lease, Landlord shall be under no obligation to repair, restore or replace any part or all of the Shopping Center. (2) If this Lease shall be terminated as provided in this Article, Tenant shall surrender the Demised Premises within thirty (30) days after delivery of any notices of termination, whereupon this Lease shall expire as though the date of such surrender were. the date herein set forth for the expiration of the term hereof. (d) Rent Ahatement, In the case of fire or damage, the rent shall be abated proportionately with the degree in which the Tenant's use of the Demised Premises is impaired during the period of damage. If the Landlord repairs the damage, the abatement shall end five (5) days after notice that the Demised Premises have been repaired. - 19 - (a) Tenant shall not use the Demised Premises to treat, produce, store, handle, transfer, process, transport, dispose of or otherwise release any Hazardous Substances (hereinafter defined) on, from, or affecting the Demised Premises which has caused, is causing or could cause Contamination (hereinafter defined). Tenant has not received any summon, citation, notice of violation, administrative order, directive, letter or other communication, written or oral, from any governmental or quasi-governmental authority concerning any intentional or uninten- tional action or omission on the part of Tenant with regard to Hazardous Substances on, from or affecting the Demised Premises. (b) Tenant covenants that the Demised Premises shall be kept free of any Hazardous Substance which is causing or could cause Contamination, and shall not be used to generate, manufacture, refine, transport, treat, store, handle, dispose of, transfer, produce or process any Hazardous Substances which is causing or could cause Contamination. Tenant shall not cause or permit as a result of intentional or unintentional act or omission on the part of Tenant or any subtenant the installation of any Hazardous Substances in or on the Demised Premises or a release of any Hazardous Substances onto or from the Demised Premises or suffer the presence of any Hazardous Substances on the Demised Premises which in any case is causing or could cause Contamination. (c) Tenant shall comply with and ensure compliance with all applicable federal, state and local laws, ordinances, rules and regulations, with respect to Hazardous Substances, and shall keep the Demised Premises free and clear of any liens imposed pursuant to such laws, ordinances, rules and regulations. If Tenant receives any notice from any governmental authority with regard to Hazardous Substances on, from or affecting the Demised Premises, Tenant shall (i) immediately notify Landlord and any other person, governmental or quasi-governmental authority that Tenant is required to notify pursuant to any applicable law at such time as Tenant is aware of a release or a threatened release of a Hazardous Substances on, from or affecting the Demised Premises, (ii) immediately notify the Landlord at such time as an environmental investigation or clean-up proceeding is instituted by any person in connection with the Demised Premises, (iii) fully comply with and assist such environmental investigation and clean-up proceeding, (iv) promptly execute and complete any Remedial (hereinafter defined) actions necessary to ensure that no environmental liens or encumbrances are levied against or exist with respect to the Demised Premises, and (v) promptly, upon written request of Landlord, provide Landlord from time to time with an environmental site assessment or report, in form and substance satisfactory to Landlord. Tenant shall conduct and complete all investigations, studies, sampling and testing and all Remedial, removal and other actions necessary to clean-up and remove all Hazardous Substances on, from or affecting the Demised Premises in accordance with all applicable, federal state and local laws, ordinances, rules, regulations and policies and to the satisfaction of Landlord. If Tenant shall fail to take such action, Landlord may make advances or payments towards performance or satisfaction of the same but shall be under no obligation to do so; and all sums so advanced or paid, including all sums advanced or paid in connection with any judicial or administrative investigation or proceeding relating thereto including without limitation reasonable attorneys' fees, fines or penalty payments shall be immediately repayable by Tenant to - 20 - Landlord and shall bear interest at the Prime Rate hereinbefore established from the date advanced or paid by Landlord until the date paid by Tenant to Landlord, and all sums so advanced shall be considered Rent. (d) For the purposes of this paragraph "Hazardous Substances" shall include without limitation any flammable explosives, radio-active materials, hazardous materials, hazardous wastes, hazardous or toxic substances, hazardous or toxic pollutant or related materials, asbestos or any material containing asbestos, or any other substance, mixture, waste, compound, material, element, product or matter as defined by any Federal, state or local environmental law, ordinance, rule or regulation including without limitation the Comprehensive Environmental Response, Compensation and Liability Act of 1980, as amended (49 U.S.C. Sections 1801, .et seq.), the Resource Conservation and Recovery Act (42 U.S.C. Sections 9601 .et seq.), the Hazardous Materials Transportation Act, as amended (49 U.S.C. Sections 9601 nt seq.), the Clean Water Act, as amended (33 U.S.C. Sections 1251 et seq.), the Clean Air Act, as amended (42 U.S.C. Sections 7401 of seq.), the Clean Streams Law, as amended (35 P.S. Section 691.101 at s-eq.), the Solid Waste Management Act, as amended (35 P.S. Sections 6801.101, et seq.), and in the regulations adopted and publications promulgated pursuant thereto any time. (e) Tenant agrees to defend, indemnify and hold Landlord harmless from and against any losses, expenses, liabilities and claims arising from any breach or default by Tenant of its representations or obligations under this Article, including without limitation enforcing the obligations of Tenant under this Article and including without limitation reasonably attorney's fees. (f) The obligations and liabilities of Tenant under this Article shall survive the termination of this Lease. (g) For the purposes of this Article, the term "Contamination" shall mean the uncontained presence of hazardous substances on the Demised Premises or arising from the Demised Premises which may require Remedial Action under applicable law. (h) The term "Remedial" shall mean without limitation (i) the clean-up or removal of hazardous substances, (ii) such actions as may be necessary to monitor, assess or evaluate the release or threatened release of hazardous substances, (iii) the proper disposal or release of hazardous substances, (iv) the taking of such other actions as may be necessary to prevent, minimize or mitigate the damages caused by a release or threatened release of hazardous substances to the public health or welfare or to the environment. Subject to the requirements of Landlord's mortgagees: (a) Total Condemnation of the Demised Premises- If all or a substantial portion of the Demised Premises is taken by or pursuant to governmental authority or by the exercise of right of eminent domain or by agreement between the Landlord and those authorized to exercise - 21 - such right (all such procedures being collectively referred to herein as "a taking in condemnation"), the obligations of the Tenant accruing subsequent to such taking in condemnation shall cease and detennine absolutely, and the Tenant shall surrender possession of the Demised Premises to Landlord as of the date title vests in the condemnor or, at Landlord's option, if permitted by applicable law, the obligation of the parties hereto shall continue in full force and effect as to all of the terns and conditions of this Lease until Tenant, by reason of an official order or direction of the condemning authority, vacates the Demised Premises. (b) Condemnation of the Shonning Center. If any material part of either the building of which the Demised Premises are a part of or the Shopping Center shall be taken in condemnation (whether or not the Demised Premises shall be affected), Landlord, at Landlord's option, made by written notice given to Tenant within sixty (60) days after the date of such taking in condemnation, elect to treat such taking in condemnation as a taking in condemnation of the entire Demised Premises with the same effect as if the entire Demised Premises had in fact been taken. (c) Condemnation Awards. In the event of a taking in condemnation of the Demised Premises, whether partial or total, or in the event that Landlord elects as above provided to treat a taking in condemnation as a taking of the entire Demised Premises: (1) Tenant hereby waives all claims against Landlord in connection with such taking, except as specifically provided in Article 33(d) entitled "Partial Con- demnation," and hereby assigns to Landlord all claims of any nature against the condemnor arising out of such taking, including, but not limited to all claims for loss of Tenant's leasehold estate. (2) Tenant shall make no claim against the condemnor for the value of Tenant's leasehold estate. (3) Notwithstanding the foregoing, Tenant shall be entitled to the extent applicable law permits to claim against the condemnor for removal expense, business dislocation damage, moving expenses and delay compensation, if any, provided that such claim shall not reduce any award to Landlord. (d) Partial Condemnation. In the event of a condemnation of any portion of the Demised Premises, Tenant may elect to terminate this Lease by the effective date of the taking in condemnation. If this Lease continues after a partial taking in condemnation, the minimum rent payable hereunder shall be reduced from and after the taking of possession by the condemnor in the same proportion as the area, if any, of the Demised Premises taken bears to the area of the entire Demised Premises. - 22 - (a) Subject to the terms hereinafter set forth, this Lease and the estate hereby demised shall be and remain junior to any and all mortgages on the Demised Premises or the Shopping Center or any part thereof of which the Demised Premises constitute as part; provided, however, that: (1) So long as Tenant continues to pay the rent as in this Lease reserved and otherwise complies with the terms and provisions hereof- (i) The right of possession of the Tenant to the Demised Premises and the provisions and terms of this Lease otherwise shall not be affected or disturbed by mortgagee in the exercise of any of its rights under the said mortgage, or the bond or debt secured thereby or otherwise by law provided. (ii) In the event that the mortgagee comes into possession of or ownership of the title to the Shopping Center or Demised Premises by foreclosure of said mortgage, or by proceedings on the said bond, or otherwise, this Lease shall continue in effect and shall not be terminated by any of said proceedings. (2) In the event that the Demised Premises are sold or otherwise disposed of pursuant to any right or any power contained in the said mortgage or the said bond, or as a result of proceedings thereon, the purchaser of said Demised Premises at such sale, or pay person acquiring title through or by virtue of said sale, shall become liable to perform all of the obligations of Landlord under, this Lease. (3) This Lease shall be binding upon and inure to the benefit of mortgagee, owner and Tenant, and their respective heirs, executors, administrators, successors and assigns, except as otherwise expressly provided herein. (4) The foregoing provisions shall be self-operative, but Landlord agrees to attempt to secure the mortgagee's written confirmation thereof, as reasonably requested by Tenant. (b) Offset Statement. Within ten (10) days after request therefor by Landlord or any mortgagee, a statement shall be required from Tenant, and Tenant agrees to deliver in recordable form a statement in writing to any proposed mortgagee or purchaser or lender or to Landlord, certifying (if or to the extent that such be the case) that this Lease is unmodified and in full force and effect, that Tenant has accepted the Demised Premises and is in possession thereof, that Tenant has commenced the payment of rent, that Landlord is not in default under this Lease and that there are no deficiencies or offsets to the Lease claimed by Tenant. - 23 - (c) Faihire of Compliance. If Tenant shall fail to comply with any of the terms of this Article or to execute any statement or agreement herein required within fifteen (15) days after written request from Landlord, Landlord may terminate this Lease by written notice to Tenant, whereupon the term shall expire as though the date of such notice were the date herein set forth for the expiration of the term hereof. The relationship of the parties under this Lease is solely that of Landlord and Tenant and shall in no way be construed as a partnership, joint venture or other joint enterprise. (a) The word "Tenant" used in this Lease shall mean every person or party named as Tenant in this Lease. Any notice given as provided in this Lease shall bind all such parties, and it shall have the same force as if given to all of them. (b) The use of the neuter singular pronoun to refer to Landlord and Tenant shall be deemed a proper reference to either of them whether they be an individual, a corporation, a partnership or any form of joint venture. No acceptance by Landlord of an amount less than the monthly rent and other payments stipulated to be due under this Lease shall be deemed to be other than a payment on account; of the earliest such rent or other payments then due or in arrears nor shall any endorsement or statement on any check or letter accompanying any such payment be affective to constitute an accord and satisfaction. Landlord may accept any check for payment by Tenant without prejudice to Landlord's right to recover the remainder of any rent or other payment then in arrears, and Landlord may pursue any other right or remedy provided in this Lease. No acceptance by Landlord of any payment of rent or other sum by Tenant shall be deemed a waiver of any of the obligations of Tenant under this Lease. Upon payment of the rent and performance of all the other covenants, terns, conditions and provisions of this Lease on the part of the Tenant to be performed, Tenant shall peaceably and quietly hold and enjoy the Demised Premises for the term herein specified, subject nevertheless to all the covenants, terms, conditions and provisions of this Lease. Landlord represents that it is well seized of the land as outlined on Exhibit A and - 24 - may legally enter into this Lease with Tenant. Any holding over after the expiration of the term of this Lease shall, at Landlord's option upon notice to Tenant, be construed to be a tenancy either from month-to-month or from year-to-year at the rent and other payments herein specified and shall otherwise be subject to the conditions, covenants and agreements of this Lease. If Tenant shall hold over after the termination of this Lease for any reason whatsoever, and Landlord has notified Tenant in writing that such holding over shall not be permitted, Tenant shall pay as liquidated damages and not as a penalty an amount equal to twice the monthly rent in effect for the last month of Tenant's lawful occupancy prorated for the period during which such holding over continues. Nevertheless, the acceptance of such amount by Landlord shall be without prejudice to any other rights or remedies of Landlord at law or in equity or under this Lease. If requested by Tenant, Landlord, at Tenant's expense, shall prepare, have executed and promptly files a Memorandum of this Lease in the Recorder of Deeds Office of Cumberland County, Pennsylvania, and provide proof of such recording to the Tenant. Landlord's obligation is expressly conditioned on Tenant delivering to Landlord's attorney, to be held in escrow, a Memorandum of Termination of this Lease, executed and in recordable form. If either party to this Lease shall be delayed or prevented from the performance of any obligation hereunder (other than the obligation of Tenant to pay rent or additional rent or other charges when due) by reason of labor disputes, inability to procure materials, failure of utility service, restrictive governmental laws or regulations, riots, insurrection, war, adverse weather, Acts of God, or other similar cause beyond the control of such party, the performance of such obligation shall be excused for the period of delay. The provisions of this Article shall not excuse Tenant from the prompt payment of any sums payable under any of the provisions of this Lease. The captions, section numbers, paragraph numbers and index appearing in this Lease are inserted only for convenience and shall not in any way affect the meaning or intent of any portion of this Lease. - 25 - The sections of this Lease are intended to be severable. If any section or provision of this Lease shall be held to be unenforceable by any court of competent jurisdiction, this Lease shall be construed as though such section had not been included in it. If any section or provision of this Lease shall be subject to two constructions, one of which would render such section or provision invalid, then such section shall be given the construction which would render it valid. (a) The provisions of this Lease shall extend to and be binding upon the parties hereto and their respective personal representatives, successors and assigns except that this provision shall not be construed as a consent by Landlord to any subletting or assigning by Tenant. (b) All liability of Tenant for the payment of rents or any other obligation shall survive the expiration or sooner termination of this Lease. Any disagreement between the parties hereto, including any interpretation of the provisions of this Lease, shall be decided according to the rules set forth by the American Arbitration Association, and any decision handed down by said Association shall be final and binding and not subject to appeal. (a) All notices or demands required or permitted to be given or served under this Lease shall be deemed to have been given or served only if in writing forwarded by registered or certified mail, postage prepaid, return receipt requested, and addressed as follows: To Landlord at: WESLEY ASSOCIATES C/O Bennett Williams, Inc. 135 North George Street, 4`h Fl York, Pennsylvania 17401 - 26 - To Tenant at: WORLD PREMIER HOME ENTERTAINMENT, LLC 5140 East Trindle Road Mechanicsburg, PA 17055 (b) Such address may be changed by either party by notice delivered as above provided to the other party. If Landlord or any mortgage shall so request of Tenant, Tenant shall sends such mortgagee a copy of any notice thereafter sent to Landlord. The parties acknowledge that Bennett Williams, Inc. is the sole broker involved in this Lease Agreement. Landlord and Tenant acknowledge that all commissions due Bennett Williams, Inc. and/or its agents are to be paid by Landlord, its heirs, executors, administrators, successors and assigns. The total commission due is six percent (6%) of all gross annual rentals due and payable upon the commencement of each Lease Year so long as Tenant remains in Tenancy. The following attached Exhibits, initialed by the parties hereto, are deemed part of this Lease. A - Signage B - Personal Guaranty C - Restrictions To Shopping Center D - Addendum This Lease and the Exhibits attached hereto set forth the entire agreement between the parties, and there are no other agreements, expressed or implied, oral or written, except as herein set forth. This Lease may not be amended altered or changed except in writing by both of the parties hereto. This Agreement shall be interpreted under the laws of the Commonwealth of Pennsylvania. - 27 - Landlord hereby acknowledges receipt from Tenant of the sum equal to one (1) month's rental to be held by Landlord as security for the payment of rent and the performance of Tenant's other obligations under this Lease. Said deposit shall be returned to Tenant at the termination of this Lease if all Tenant's obligations hereunder are performed to the date of termination. If Tenant defaults in the payment of rent or in the performance or observance of any obligation on its part under this Lease, Landlord may apply the deposit to payment of rent in default or other money arrearage and/or to the damages and costs incurred by Landlord as a result of any default and/or to costs incurred by Landlord in rectifying and default and/or to the prepayment of minimum rent for any subsequent period of the term; and Tenant shall promptly thereafter restore the security deposit to the original amount above specified (except the extent the said sum is applied by Landlord to prepayment of minimum rent). The right of Landlord to apply the security deposit as above specified shall not be construed as a limitation upon Landlord's right to invoke any other remedy available under this Lease or at law or in equity for breach of this Lease, or to collect the full amount of damages owing by Tenant on account of such breach. ARTTC'i F 46 - Limitation Upon Landlord's Us ilitg Neither Landlord nor any principal of Landlord, whether disclosed or undisclosed, shall have any personal liability with respect to any of the provisions of this Lease or the Demised Premises, and, if Landlord is in breach or default with respect to Landlord's obligations under this Lease or otherwise, Tenant shall look solely to the equity of Landlord in the Demised Premises for the satisfaction of Tenant's remedies. Time is of the essence to each provision of this Lease. - 28 - IN WITNESS WHEREOF, the parties hereto have executed this Lease on the day and year first above written. WITNESS: LANDLORD: WESLEY ASSOCIATES By. Gr, . -J 1 David R. Schad, General Partner ATTEST (OR WITNESS): TENANT: WORLD PREMIERE HOME ENTERTAINMENT,LLC By: LA C Kenneth Bosley - 29 - Exhibit "A" SIGNAGE Following letter shall all be non-illuminated and will be manufactured from #2418 Rohm & Haas plexiglas complete with : @ wide brown jewelite. All letters shall begin 2@ up from bottom os sign fascia, no letter to exceed 16@ in height, 2 lines of copy are permissible but both lines shall not exceed the 16@ height combined. When applying the letters on the sign panel there must be a margin of 10@ left and right. Landlord provides recessed lighting above letters for night time effect. Styles of letters may vary so long as they do not go beyond the specifications above. No logo boxes or outlines of images. SOUTH WING Whatever remaining space exists between the top of the awning and the top of the parapet wall shall be used for the signage. This measurement has not been determined at this point but is approximately 3'x6", all signage will be centered vertically between these points. No letters shall exceed 18" in height, if necessary to install two lines of copy the two lines combined shall not exceed 30" in height. The lettering must be 24" from adjoining tenants left and right. All lettering in this area shall be non-illuminated letters fabricated from Rohm & Haas dark brown plexiglas with 3/4" wide jewelite brown. No box type signs permitted. Landlord provides recessed lighting above letters for night time effect. Before proceeding with any signs tenant must submit drawings to the Landlord for approval. It is the tenant's responsibility to secure proper sign permits from the Township. It will be the Landlord's responsibility to furnish directional signs for traffic as well as identification for the Shopping Center in general. Window signs are permissible providing they are vinyl and applied to window surface in good taste. Entrance door will be lettered, indicating store name and store hours. Letter style will be Helvetica, material will be white vinyl. Under Canopy Signs: 1'x5' double face sign case and faces to be baked enamel aluminum, color bronze. Letter style will be Helvetica, material will be white vinyl. Lettering will be limited to store name. Sign frame and sign faces to be supplied by Landlord. Any changes in the above specifications without written approval will be considered a violation of the lease and dealt with accordingly. - 30 - Exhibit "B" Wesley Associates ("Creditor"), has agreed to lease the premises within ast Plaza to Wo d Premiere Home Entertainment, LLC, ("Debtor"), subject to the terms, ren , covenants and con 'tions set forth in the Agreement of Lease dated day of 2004 as th same may be extended, amended and/or supplemented from time to ti le (the "Lease"). The Credito as undertaken to make this advance to Debtor in reliance upon, nong other things, the security of ' Guaranty. There re, INTENDING TO BE LEGALLY BOUND HEEBY, and to induces the Creditor to make advans to Debtor, the undersigned Guarantors doh eby agree as follows: A. The arantors hereby unconditionally arantee to Creditor and its assignees the prompt and punc al payment of all amounts be ming due from Debtor from and after the date hereof, by accelerati on account of default, or erwise, and the performance of all other obligations, including the obli tions undertaken by t Debtor to the Creditor. The liability of the Guarantors under this Guaranty all be limited to t e terms and conditions as set forth in the Lease and any subsequent agreements re ting to the L ase, plus interest, and may be enforced by Creditor or any subsequent assignee of this uaranty. B. The liability of the Guai shall not be affected in any way by reason of against any person or persons, or the lack of hereby waive any right to require any suc pr' rs hereunder is absolute and unconditional and failure to pursue, repay or preserve any rights r enforcement of such rights. The Guarantors 1 rcement, and the Guarantors agree that any delay in enforcing or failure to enforce y such right shall in no way affect the liability of the Guarantors hereunder, even if such ri gh are thereby lost. C. The Guaran rs hereby waive all no 'ces whatsoever with respect to this Guaranty except for notice ofd land for payment from the uarantors; and Guarantors further waive notice of all other agree ents, present and future, betwee Debtor and Creditor, including, but not being limited to no ' e of Creditor's acceptance hereof, d intention to act in reliance hereon, of their reliance he on, of the amount, terms and conditio of the agreements between Creditors and Debtor and f any past or future defaults thereunder. Th Guarantors hereby consent to the taking of, or fail to take, from time to time without notice to the uarantors, any action of any nature whatsoeve ith respect to the agreements between Debtor and reditor, including, but not being limited any renewals, extensions, modifications, postpone ents, compromises, indulgences, waiv s, surrenders, exchanges, and releases, and the Guaranto shall remain fully liable hereon, n ithstanding any of the foregoing. The Guarantors hereby wai the benefit of all laws now or ereafter in effect in any way limiting or restricting the liability the Guarantors hereunder, cluding, without limitation, (a) all defenses whatsoever to the Gu antors' liability hereunder/except the defenses of (i) actual payment; and (ii) the performance of the other obligations-by the Creditor under the agreements; and (b) all rights to stay of execution and exemption of property in any action to enforce the liability of the Guarantors hereunder. - 31 - D. In addition to all other liability of the Guarantors hereunder, the Guar hors also agree to pay on demand all costs and expenses (including reasonable counsel fees) )yfiich may be incurred in the enforce ent of the agreements between Debtor and Creditor or t liability of the Guarantors hereunder, b Creditor or any assignee. No delay in making deman n the Guarantors for performance of paym nt of the Guarantors' obligations hereunder shall ejudice the right to enforce said performances o payment. E. The unde igned Guarantors /co hereby e power any attorney of any court of record within the United ates or elsewhear for th , or either one of them, and after one or more declaration filed, c rnfess judgmethem r either of them as of any term for all sums due hereunder, with cost of suit and co fission of five (5%) percent for collection and release of errors, and wit out stay o, and inquisition and extension upon any levy on real estate is hereby waive and con agreed to, and the exemption of executis also hereby expressly waived, and personal property from levy and sale on an no benefit of exemption be claimed under d bf any exemption law now in force or which may be hereafter passed. F. This Guaranty is given in ?WARction with and evidences the obligation of the undersigned to make payment in connection/Wit h a c mmercial transaction. G. In the event of one or more the provisions contained in this Guaranty shall for any reason be held to be inv lid, illegal or une orceable in any respect, such invalidity, illegality or unenforceability shall n affect any other provi 'ons of this Guaranty, but this Guaranty shall be construed as if such inva d, illegal, or unenforceabl provisions had never been contained herein. /be- bility of any Guarantor hereunder is of conditioned upon the liability of any other ability of each of the parties, which t ether are the Guarantors hereunder, sheveral. the context so requires, the singular shall be s bstituted for the plural, and vice vers - 32 - IN WITNESS WHE F, on day , 2004, INTENDING TO BE LEGALLY BO ,and to bind t executors, administrators, heirs, successors and assigns of the undersigned, as plicable, the uarantors have caused this Guaranty to be duly executed and delivered. WITNESS: - 33 - Exhibit "C" RESTRICTION OF SHOPPING CENTER d) The Restriction. Subject to the conditions and excepliarrs mentioned below, Landlord agrees that during the original term of this lease, Landlord will not execute any lease for space within the Shopping Center with a tenant whose principal business activity is for use as an electronic gaming center and related uses. d) conditions. The restrictions described above shall apply only as long as all of the following conditions exists: d) Tenant is occupying the Demised Premises doing business in the manner permitted by this Lease; d) Tenant has timely paid as due all rentals and other charges prescribed in this Lease; and d) Tenant has not been in default with regard to any obligations prescribed in this Lease. Upon the failure of one or more of the above conditions, the restriction upon the Shopping Center shall automatically cease and shall thereafter be of no further force or effect. d) Exceptions. The following exceptions apply to the restriction described above: d) The restrictions shall not apply to any existing tenants in the Shopping Center, nor shall it apply to renewals or extensions of leases which pre-date the date of this lease. d) The restriction shall not apply to any land located outside the present boundaries of the Shopping Center. d) If a court of competent jurisdiction or a governmental agency should determine the restriction to be illegal or unenforceable, or if Landlord and Tenant should agree in writing that the restriction is illegal or unenforceable, the restriction shall automatically cease and shall thereafter be of no further force or effect; moreover, Landlord and Tenant further agree that in such event the remainder of this lease will continue in full force and effect. d) If Landlord gives written notice to Tenant that a prospective tenant in violation of the restriction has requested that Landlord negotiate with it for space in the Shopping Center, then the restriction shall automatically cease and shall thereafter be of no further force or effect unless Tenant, within ten days after the delivery of Landlord's notice, agrees in writing to indemnify Landlord and hold Landlord harmless from all liability, legal actions (including, without limitation, court costs and attorneys' fees), expense and loss incurred by Landlord and related in any way to Landlord's attempts to comply with the restriction. - 34 - Exhibit "D" ADDENDUM Landlord warrants all mechanical systems to be in good condition and working order. Upon the expiration of the first (1") Lease Month, Tenant show have the ongoing option to terminate this lease, without further obligation, by giving Landlord ninety (90) days written notice. C nl.ib;+ Q ATTORNEYS AT LAW December 17, 2008 VIA REGULAR AND CERTIFIED MAIL/ RRR #7008 1830 0001 7229 0972 Reply To: Philadelphia WORLD PREMIERE HOME ENTERTAINMENT, LLC 5140 East Trindle Road 1601 Market Street Mechanicsburg, PA 17055 Suite 2600 Re: NOTICE OF DEFAULT Philadelphia, PA 19103 Store 17, East Gate Plaza, Mechanicsburg, PA (215) 563-0500 Dear Sir/Madam: Fax: (215) 563-5532 Please be advised that this law firm represents PR Real Estate, LLC & Home Elite, Ltd. ("Landlord"). World Premiere Entertainment, LLC 10 Me?roseAvenue ("Tenant") has failed to pay rent and related charges that are presently due Suite 430 and owing under that certain Lease between Wesley and Tenant as Cherry Hill, N) 08003 amended by First Amendment to Lease between Landlord and Tenant dated November 15, 2004 (the "Lease"), in the amount of (856) 216-2322 $36,894.44 as of 12/2/08. This total includes the following sums: Fax: (856) 216-2392 2005 Operating Expense Reconciliation $980.53 2007 Operating Expense Reconciliation $922.85 June-December 2008 Rent $9,987.02 www.dpattorneys.com Late Fees $1,416.67 Interest $233.33 2009 Accelerated Rent $20,000.00 Attorney's Fees $3,354.04 Pursuant to Article 25 of the Lease, tenant is hereby notified that it must pay all amounts set forth above within five (5) days from the date of receipt of this Notice. After expiration of the above-mentioned five (5) day period, Landlord will exercise any and all rights and remedies under the Lease, including commencing Confession of Judgment proceedings, as well as any other rights and remedies, at law or in equity, without further notice. Very truly yours, zw*?41 40 Arthur R. Armstrong Deeb, Petrakis, Blum & Murphy, P.C. ?? R ? ? b ?• ? -- r? ? ? o ? ? b ?:. '? ce i , _ ?'? ?,? T ?7 ?._,/ ' . ? { ?~j ? t ': ?. .? ^ y ? ?? t ?....? -ye A DEEB, PETRAKIS, BLUM 86 MURPHY, P.C. BY: Frank G. Murphy, Esquire Christine McGuigan, Esquire Identification Nos. 65886; 86784 1601 Market Street, 26th Floor Philadelphia, PA 19103 (215) 563-0500 PR REAL ESTATE, LLC 8s HOME ELITE, LTD. 491 Old York Road, Suite 200, Jenkintown, Pennsylvania 19046 V. Plaintiffs, Attorneys for Plaintiffs, P.R. Real Estate, LLC & Home Elite Ltd. COURT OF COMMON PLEAS CUMBERLAND COUNTY CIVIL ACTION - LAW Docket No. CA - 911 C?-MtTerm WORLD PREMIERE HOME ENTERTAINMENT, LLC 5140 East Trindle Road, Mechanicsburg, Pennsylvania 17055 Defendant. ENTRY OF APPEARANCE TO THE PROTHONOTARY: Kindly enter our appearance for the Defendant, World Premiere Home Entertainment, LLC, on whose behalf we confess judgment for money in the sum of $19,496.11. Judgment Entered As Above DEEB, PETRAKIS, BLUM &. M HY, P.C. By: FRXNk G. MURPHY, ESQUIRE CHRISTINE MCGUIGAN, ESQUIRE Attorneys for Defendant Prothonotary ry 65 _ la DEEB, PETRAKIS, BLUM & MURPHY, P.C. BY: Frank G. Murphy, Esquire Christine McGuigan, Esquire Identification Nos. 65886; 86784 1601 Market Street, 26th Floor Philadelphia, PA 19103 (215) 563-0500 PR REAL ESTATE, LLC & HOME ELITE, LTD. 491 Old York Road, Suite.200, Jenkintown, Pennsylvania 19046 V. Plaintiffs, Attorneys for Plaintiffs, P.R. Real Estate, LLC & Home Elite Ltd. COURT OF COMMON PLEAS CUMBERLAND COUNTY CIVIL ACTION - LAW Docket No. Oct - 9 11 e i v i <Ter'.. WORLD PREMIERE HOME ENTERTAINMENT, LLC 5140 East Trindle Road, Mechanicsburg, Pennsylvania 17055 Defendant. TO THE PROTHONOTARY: ORDER FOR APPEARANCE Kindly enter our appearance as attorneys for the Plaintiffs, Home Elite Ltd. and P.R. Real Estate, LLC, in the above-entitled matter. Dated: g do DEEB, PETRAKIS, BLUM & MU HY, P.C. By: rank G. Murphy, Esquire Christine McGuigan, Esquire 1601 Market Street, Suite 2600 Philadelphia, PA 19103 (215) 563-0500 Attorneys for Plaintiffs, P.R. Real Estate, LLC & Home Elite Ltd. "' :a C.+1 } t»na »? DEEB, PETRAKIS, BLUM & MURPHY, P.C. BY: Frank G. Murphy, Esquire Christine McGuigan, Esquire Identification Nos. 65886; 86784 1601 Market Street, 26th Floor Philadelphia, PA 19103 (215) 563-0500 PR REAL ESTATE, LLC & HOME ELITE, LTD. 491 Old York Road, Suite 200, Jenkintown, Pennsylvania 19046 V. Plaintiffs, WORLD PREMIERE HOME ENTERTAINMENT, LLC 5140 East Trindle Road, Mechanicsburg, Pennsylvania 17055 Defendant. Attorneys for Plaintiffs, P.R. Real Estate, LLC 8v Home Elite Ltd. COURT OF COMMON PLEAS CUMBERLAND COUNTY CIVIL ACTION - LAW Docket No. fR - 4 l1 0'V a l (erft CERTIFICATION OF ADDRESSES Christine C. McGuigan, Esquire, certifies, to the best of his knowledge, information, and belief, that the addresses of Plaintiffs, P.R. Real Estate, LLC 8v Home Elite Ltd. are 491 Old York Road, Suite 200, Jenkintown, Pennsylvania 19046; and the last known address of Defendant World Premiere Home Entertainment, LLC is 5140 East Trindle Road, Mechanicsburg, Pennsylvania 17055. Dated: DEEB, PETRAKIS, BLUM & MURPHY, P.C. By: CHRISTINE MCGUIGAN, ESQUIRE Attorney for Plaintiffs, Home Elite Ltd. and P.R. Real Estate, LLC C? ?, ? = ? ' ' S ° =T's ?'y ?? :. ?'f , ._._ `; t' tr,7 "C _ .W?7 ? '.iy, '? DEEB, PETRAKIS, BLUM & MURPHY, P.C. BY: Frank G. Murphy, Esquire Christine McGuigan, Esquire Identification Nos. 65886; 86784 1601 Market Street, 26th Floor Philadelphia, PA 19103 (215) 563-0500 PR REAL ESTATE, LLC & HOME ELITE, LTD. 491 Old York Road, Suite 200, Jenkintown, Pennsylvania 19046 V. Plaintiffs, WORLD PREMIERE HOME ENTERTAINMENT, LLC 5140 East Trindle Road, Mechanicsburg, Pennsylvania 17055 Defendant. Attorneys for Plaintiffs, P.R. Real Estate, LLC 8s Home Elite Ltd. COURT OF COMMON PLEAS CUMBERLAND COUNTY CIVIL ACTION - LAW Docket No. CR - C1I ?ivit ter*% AFFIDAVIT STATE OF PENNSYLVANIA SS. COUNTY OF MONTGOMERY Scott Homel, being duly sworn according to law, deposes and says that he is authorized to make this affidavit on behalf of Plaintiffs; that the facts set forth in the Complaint in Confession of Judgment are true and correct to the best of his knowledge, information, and belief; and, that the Exhibits attached to the Complaint in Confession of Judgment are true and correct copies of the originals. Sworn to and Subscribed before me this 34 day of Februaq , 2009. ^ N¢tar?) Public N AIL SEAL Elizabeth N Tellado NOTARY PUBLIC City of Philadelphia, Philadelphia County M Commission Expires 0310212011 Scott Home , on e o laintiffs C? C= CJ C= lx1 Cry DEEB, PETRAKIS, BLUM & MURPHY, P.C. BY: Frank G. Murphy, Esquire Christine McGuigan, Esquire Identification Nos. 65886; 86784 1601 Market Street, 26th Floor Philadelphia, PA 19103 (215) 563-0500 PR REAL ESTATE, LLC & HOME ELITE, LTD. 491 Old York Road, Suite 200, Jenkintown, Pennsylvania 19046 V. Plaintiffs, WORLD PREMIERE HOME ENTERTAINMENT, LLC 5140 East Trindle Road, Mechanicsburg, Pennsylvania 17055 Defendant. Attorneys for Plaintiffs, P.R. Real Estate, LLC & Home Elite Ltd. COURT OF COMMON PLEAS CUMBERLAND COUNTY CIVIL ACTION - LAW Docket No. CA - q 1 0.- vr1 1 . M AFFIDAVIT OF INCOME STATE OF PENNSYLVANIA COUNTY OF MONTGOMERY SS. Scott Homel, being duly sworn according to law, deposes and says that he is authorized to make this affidavit on behalf of Plaintiffs; and, that to the best of his knowledge, information, and belief, at the time of the signing of the document containing provision for judgment by confession in the said matter, the income of Defendant World Premiere Home Entertainment, LLC was in excess of $10,000 per year. Sworn to and Subscribed before me this 3"4 day of February , 2009. Scott Homel, N t Public Elizabeth N Tekdo NOTARY PUBLIC City of Philadelphia, Philadelphia County M Commission Expires 0310212011 for PR Real Estate, LLC & Home Elite Ltd. C? b c y ?? DEEB, PETRAKIS, BLUM & MURPHY, P.C. BY: Frank G. Murphy, Esquire Christine McGuigan, Esquire Identification Nos. 65886; 86784 1601 Market Street, 26th Floor Philadelphia, PA 19103 (215) 563-0500 PR REAL ESTATE, LLC & HOME ELITE, LTD. 491 Old York Road, Suite 200, Jenkintown, Pennsylvania 19046 V. Plaintiffs, Attorneys for Plaintiffs, P.R. Real Estate, LLC & Home Elite Ltd. COURT OF COMMON PLEAS CUMBERLAND COUNTY CIVIL ACTION - LAW Docket No. (R - 9 1 (iv it Texrv, WORLD PREMIERE HOME ENTERTAINMENT, LLC 5140 East Trindle Road, Mechanicsburg, Pennsylvania 17055 Defendant. AFFIDAVIT OF NONAPPLICABILITY OF GOODS AND SERVICES INSTALLMENT SALES ACT AND AFFIDAVIT OF NON-CONSUMER CREDIT TRANSACTION AND NON-RESIDENTIAL LEASE STATE OF PENNSYLVANIA COUNTY OF MONTGOMERY SS. Scott Homel, being duly sworn according to law, deposes and says: that he is authorized to make this affidavit on behalf of Plaintiffs; that the Confession of Judgment does not arise out of a retail installment sale, contract, or account, as defined under the Goods and Services Installment Sales Act, 69 P.S. §110 1, et sec- .; that the Confession of Judgment is not being entered against natural person(s) in connection with a "consumer credit transaction" as that term is defined in Pa. R.C.P. 2950 (as amended); that the Confession of Judgment is not being entered in connection with a residential lease; and, that the foregoing facts are true and correct to the best of his knowledge, information, and belief. Sworn to and Subcribed before me this 3'k day of Fe br uar? , 2009. No blic NOTARIAL SEAL Elizabeth N Tellado NOTARY PUBLIC F hiladelphia, Philadelphia County mmission Ex ' 0310212011 Scott Homel, for Plaintiffs E? ? 7 ..,_ :. t7 'O J Fr! DEEB, PETRAKIS, BLUM & MURPHY, P.C. BY: Frank G. Murphy, Esquire Christine McGuigan, Esquire Identification Nos. 65886; 86784 1601 Market Street, 26th Floor Philadelphia, PA 19103 (215) 563-0500 PR REAL ESTATE, LLC 8s HOME ELITE, LTD. 491 Old York Road, Suite 200, Jenkintown, Pennsylvania 19046 V. Plaintiffs, Attorneys for Plaintiffs, P.R. Real Estate, LLC & Home Elite Ltd. COURT OF COMMON PLEAS CUMBERLAND COUNTY CIVIL ACTION - LAW Docket No. CR - 91 C; V + ( T? WORLD PREMIERE HOME ENTERTAINMENT, LLC 5140 East Trindle Road, Mechanicsburg, Pennsylvania 17055 Defendant. AFFIDAVIT OF DEFAULT STATE OF PENNSYLVANIA COUNTY OF MONTGOMERY SS. Scott Homel, being duly sworn according to law, deposes and says: that he is authorized to make this affidavit on behalf of Plaintiffs; that Defendant World Premiere Home Entertainment, LLC entered into the Lease (as defined in the Complaint in confession of judgment filed in the within action), a true and correct copy of which is attached to the Complaint; that Defendants are in default under the Lease by failing to pay rent owed to Plaintiffs. There is presently $19,496.11 (principal sum plus attorneys' commission) due and owing under the Lease. Sworn to and Subscribed before me this 3r*? day of FQ bra-art„rl , 2009. N aryblic _--1 - Eiinbeth N Tellado NOTARY PUBLIC City of Philadelphia, Philadelphia County M Commission Ex ores 0310212011 Scott Home , or C..J ?. r „i t-r- C7 ..dry ?Y`!w DEEB, PETRAKIS, BLUM & MURPHY, P.C. BY: Frank G. Murphy, Esquire Christine McGuigan, Esquire Identification Nos. 65886; 86784 1601 Market Street, 26th Floor Philadelphia, PA 19103 (215) 563-0500 PR REAL ESTATE, LLC & HOME ELITE, LTD. 491 Old York Road, Suite 200, Jenkintown, Pennsylvania 19046 V. Plaintiffs, Attorneys for Plaintiffs, P.R. Real Estate, LLC 8s Home Elite Ltd. COURT OF COMMON PLEAS CUMBERLAND COUNTY CIVIL ACTION - LAW Docket No. CA- 911 Civil e+r% WORLD PREMIERE HOME ENTERTAINMENT, LLC 5140 East Trindle Road, Mechanicsburg, Pennsylvania 17055 Defendant. AFFIDAVIT OF NON-KMITARY SERVICE STATE OF PENNSYLVANIA COUNTY OF MONTGOMERY SS. Scott Homel, being duly sworn according to law, deposes and says: that he is authorized to make this affidavit on behalf of Plaintiffs; and, that to the best of his knowledge, information, and belief, the Defendant is not in the Military or Naval Service of the United States, nor any State or Territory hereof or its allies, or otherwise within the provisions of the Soldiers' and Sailors' Civil Relief Act of 1940 and the amendments thereto or the Service members Civil Relief Act. Sworn to and Subscribed before me this 3"4 day of Febr AArJu ,, 2009. 11 ?? Notary blic Elizabeth N TeHado NOTARY PUBLIC City of Philadelphia, PhHadelphia County M commission Expires 0310212011 Scott Homel, for ain s rr? ;.;d ey u DEEB, PETRAKIS, BLUM & MURPHY, P.C. BY: Frank G. Murphy, Esquire Christine McGuigan, Esquire Identification Nos. 65886; 86784 1601 Market Street, 26th Floor Philadelphia, PA 19103 (215) 563-0500 PR REAL ESTATE, LLC & HOME ELITE, LTD. 491 Old York Road, Suite 200, Jenkintown, Pennsylvania 19046 V. Plaintiffs, WORLD PREMIERE HOME ENTERTAINMENT, LLC 5140 East Trindle Road, Mechanicsburg, Pennsylvania 17055 Defendant. Attorneys for Plaintiffs, P.R. Real Estate, LLC 8v Home Elite Ltd. COURT OF COMMON PLEAS CUMBERLAND COUNTY CIVIL ACTION - LAW Docket No. (R - 911 e'y it - er w- PRAECIPE FOR ASSESSMENT OF DAMAGES AND JUDGMENT BY CONFESSION FOR MONEY PURSUANT TO PA R C P 2951, ET SEO TO THE PROTHONOTARY: Pursuant to Pa.R.C.P. 2951 et sea., please assess damages and enter judgment against Defendant World Premiere Home Entertainment, LLC, in favor of Plaintiffs, P.R. Real Estate, LLC & Home Elite Ltd., in the amount of $19,496.11, as follows: Unpaid Rent Total: By: Dated: $17,723.74 $1,772.37 $19,496.11 DEEB, PETRAKIS, BLUM & MU , P. C. FRAA G. M RPHY, ESQUIRE CHRISTINE C. MCGUIGAN, ESQUIRE Attorneys for Plaintiffs, P.R. Real Estate, LLC & Home Elite Ltd. ra C CA) .% C,J DEEB, PETRAKIS, BLUM & MURPHY, P.C. BY: Frank G. Murphy, Esquire Christine McGuigan, Esquire Identification Nos. 65886; 86784 1601 Market Street, 26th Floor Philadelphia, PA 19103 (215) 563-0500 PR REAL ESTATE, LLC & HOME ELITE, LTD. 491 Old York Road, Suite 200, Jenkintown, Pennsylvania 19046 V. Plaintiffs, WORLD PREMIERE HOME ENTERTAINMENT, LLC 5140 East Trindle Road, Mechanicsburg, Pennsylvania 17055 Defendant. Attorneys for Plaintiffs, P.R. Real Estate, LLC & Home Elite Ltd. COURT OF COMMON PLEAS CUMBERLAND COUNTY CIVIL ACTION - LAW Docket No. CR - q I I ai Y l- e-#-V- . AFFIDAVIT OF BUSINESS TRANSACTION STATE OF PENNSYLVANIA . SS. COUNTY OF MONTGOMERY Scott Homel, being duly sworn according to law, deposes and says: that he is authorized to make this affidavit on behalf of Plaintiffs; and, that the transaction upon which Judgment is being entered by Confession was a business and commercial transaction. Sworn to and Subscribed before me this 3nd day of Febr#Aarj2009. /rd,tark)Public zabo N Tellado EQ,Iyo?f " --- OTARY PUBLIC Oia, PhilCounty ion 're$ 03/0112011 Scott Homel, for Plain C 7 - - ?v rr ;- 1 °rt r=- DEEB, PETRAKIS, BLUM & MURPHY, P.C. BY: Frank G. Murphy, Esquire Christine McGuigan, Esquire Identification Nos. 65886; 86784 1601 Market Street, 26th Floor Philadelphia, PA 19103 (215) 563-0500 PR REAL ESTATE, LLC & HOME ELITE, LTD. 491 Old York Road, Suite 200, Jenkintown, Pennsylvania 19046 V. Plaintiffs, Attorneys for Plaintiffs, P.R. Real Estate, LLC & Home Elite Ltd. COURT OF COMMON PLEAS CUMBERLAND COUNTY CIVIL ACTION - LAW Docket No. C? -- 11/ 0, viI - e,rw, WORLD PREMIERE HOME ENTERTAINMENT, LLC 5140 East Trindle Road, Mechanicsburg, Pennsylvania 17055 Defendant. Notice Under Rule 2958.1 of Judgment and Execution Thereon Notice of Defendants' Rights To: Defendant World Premiere Home Entertainment, LLC A judgment in the amount of $19,496.11 has been entered against you and in favor of the Plaintiffs without any prior notice or hearing based on a confession of judgment contained in a written agreement or other paper allegedly signed by you. The sheriff may take your money or other property to pay the judgment at any time after thirty (30) days after the date on which this notice is served on you. You may have legal rights to defeat the judgment or to prevent your money or property from being taken. YOU MUST FILE A PETITION SEEKING RELIEF FROM THE JUDGMENT AND PRESENT IT TO A JUDGE WITHIN THIRTY (30) DAYS AFTER THE DATE ON WHICH THIS NOTICE IS SERVED ON YOU OR YOU MAY LOSE YOUR RIGHTS. YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW. THIS OFFICE CAN PROVIDE YOU WITH INFORMATION ABOUT HIRING A LAWYER. IF YOU CANNOT AFFORD TO HIRE A LAWYER, THIS OFFICE MAY BE ABLE TO PROVIDE YOU WITH INFORMATION ABOUT AGENCIES THAT MAY OFFER LEGAL SERVICES TO ELIGIBLE PERSONS AT A REDUCED FEE OR NO FEE. Cumberland County Bar Association 32 S. Bedford Street Carlisle, PA 17013 (717) 249-3166 Dated: 0 DEEB, PETRAKIS, BLUM & MU HY, P.C. By: ?--? Frank G. Murphy, Esquire Christine C. McGuigan, Esquire 1601 Market Street, Suite 2600 Philadelphia, PA 19103 (215) 563-0500 Attorneys for Plaintiffs, P.R. Real Estate, LLC & Home Elite Ltd. ? -n Fz w - w DEER, PETRAKIS, BLUM & MURPHY, P.C. BY: Frank G. Murphy, Esquire Christine McGuigan, Esquire Identification Nos. 65886; 86784 1601 Market Street, 26th Floor Philadelphia, PA 19103 (215) 563-0500 PR REAL ESTATE, LLC & HOME ELITE, LTD. 491 Old York Road, Suite 200, Jenkintown, Pennsylvania 19046 V. Plaintiffs, WORLD PREMIERE HOME ENTERTAINMENT, LLC 5140 East Trindle Road, Mechanicsburg, Pennsylvania 17055 Defendant. Attorneys for Plaintiffs, P.R. Real Estate, LLC Home Elite Ltd. COURT OF COMMON PLEAS CUMBERLAND COUNTY CIVIL ACTION - LAW Docket No. Cq - 91 0-4-vit-Tervk NOTICE UNDER 42 PA. C.S.A. 82737.1 To: WORLD PREMIERE HOME ENTERTAINMENT, LLC 5140 East Trindle Road, Mechanicsburg, Pennsylvania 17055 A judgment in the amount of $19,496.11 has been entered against you and in favor of the Plaintiffs without any prior notice or hearing based on a confession of judgment contained in a written agreement or other paper allegedly signed by you. 42 Pa. C.S.A. § 2737 states in part as follows: A debtor who has been incorrectly identified and had a confession or judgment entered against him may petition the court for costs and reasonable attorney fees as determined by the court. The written instructions regarding the procedure to follow to strike the judgments are not prescribed in detail. For this reason, you should contact an attorney for assistance. However, you are advised that Pa. R.C.P. 2959, provides as follows: Striking Off or Opening Judgment; Pleadings; Procedure (a)(1) Relief from a judgment by confession shall be sought by petition. Except as provided in subparagraph (2), all grounds for relief whether to strike off the judgment or to open it must be asserted in a single petition. The petition may be filed in the county in which the judgment was originally entered, in any county which the judgment has been transferred or in any other county in which the sheriff has received a writ of execution directed to the sheriff to enforce the judgment (2) The ground that the waiver of the due process rights of notice and hearing was not voluntary, intelligent and knowing shall be raised only (i) in support of a further request for a stay of execution where the court has been stayed execution despite the timely filing of a petition for relief from the judgment and the presentation of prima facie evidence of a defense; and (ii) as provided by Rule [of Civil Procedure] 2958.3 or Rule 2973.3. (3) If written notice is served upon the petitioner pursuant to Rule [of Civil Procedure] 2956.1(c) (2) or Rule [of Civil Procedure] 2973.1(c), the petition shall be filed within thirty days after such service. Unless the Defendant can demonstrate that there were compelling reasons for the delay, a petition not timely filed shall be denied. (b) If the petition states prima facie grounds for relief the court shall issue a rule to show cause and may grant a stay of proceedings. After being served with a copy of the petition the Plaintiff shall file an answer on or before the return day of the rule. The return day of the rule shall be fixed by the court by local rule or special order. (c) , A party waives all defenses and objections which are not included in the petition or answer. (d) The petition and the rule to show cause and the answer shall be served as provided in Rule [of Civil Procedure] 440. (e) The Court shall dispose of the rule on petition and answer, and on any testimony, depositions, admissions and other evidence. The court for cause shown may stay proceedings on the petition insofar as it seeks to open the judgment pending disposition of the application to strike off the judgment. If evidence is produced which in a jury trial would require the issues to be submitted to the jury the court shall open judgment. (fl The lien of the judgment or of any levy or attachment shall be preserved while the proceedings to strike off or open the judgment are pending. (9)(1) A judgment shall not be stricken or opened because of a creditor's failure to provide a debtor with instructions imposed by an existing statute, if any, regarding procedures to follow to strike a judgment or regarding any rights available to an incorrectly identified debtor. (2) Subdivision (g) (1) shall apply to (1) judgments entered prior to the effective date of subdivision (g) which have not been stricken or opened as of the effective date and (2) judgments entered on or after the effective date. 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. THIS OFFICE CAN PROVIDE YOU WITH INFORMATION ABOUT HIRING A LAWYER. IF YOU CANNOT AFFORD TO HIRE A LAWYER, THIS OFFICE MAY BE ABLE TO PROVIDE YOU WITH INFORMATION ABOUT AGENCIES THAT MAY OFFER LEGAL SERVICES TO ELIGIBLE PERSONS AT A REDUCED FEE OR NO FEE. Cumberland County Bar Association 32 S. Bedford Street Carlisle, Pennsylvania 17013 (717) 249-3166 Dated: `I DEEB PETRAKIS, BL UM 8v M HY, P.C. By: Frank G. Murphy, Esquire Christine C. McGuigan, Esquire 1601 Market Street, Suite 2600 Philadelphia, PA 19103 (215) 563-0500 Attorneys for Plaintiffs, P.R. Real Estate, LLC & Home Elite Ltd. r> r,, :? IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA PR REAL ESTATE, LLC 8v HOME ELITE, LTD. 491 Old York Road, Suite 200, Jenkintown, Pennsylvania 19046 V. Plaintiffs, WORLD PREMIERE HOME ENTERTAINMENT, LLC 5140 East Trindle Road, Mechanicsburg, Pennsylvania 17055 Defendant. COURT OF COMMON PLEAS CUMBERLAND COUNTY CIVIL ACTION - LAW Docket No. Oq " q I I 0'i v < ( -Fam 236 NOTICE NOTICE IS GIVEN THAT A JUDGMENT IN THE ABOVE CAPTIONED MATTER HAS BEEN ENTERED AGAINST YOU FOR PAST RENT OWED IN THE AMOUNT OF $19,496.11 (principal sum plus attorneys' commission). ENCLOSED HEREWITH IS A COPY OF ALL THE DOCUMENTS FILED IN SUPPORT OF THE SAID JUDGMENT. CURTIS N PROTHONOTARY IF YOU HAVE ANY QUESTIONS CONCERNING THE ABOVE, PLEASE CONTACT: Frank G. Murphy, Esquire Christine C. McGuigan, Esquire 1601 Market Street, Suite 2600 Philadelphia, PA 19103 (215) 563-0500 Attorneys for Plaintiffs, P.R. Real Estate, LLC & Home Elite Ltd. Dated: February,,Z, 2009 DEEB, PETRAKIS, BLUM SHERIFF'S RETURN - REGULAR CASE NO: 2009-00911 P COMMONWEALTH OF PENNSYLVANIA: COUNTY OF CUMBERLAND PR REAL ESTATE LLC VS WORLD PREMIER HOME ENTERTAINME JASON VIORAL Cumberland County,Pennsylvania, who being duly sworn according to law, says, the within COMPLT-CONFES JUDGMENT WORLD PREMIER HOME ENTERTAINMENT LLC DEFENDANT Sheriff or Deputy Sheriff of was served upon the at 0013:22 HOURS, on the 24th day of February-, 2009 at 5140 E TRINDLE RD MECHANCISBURG, PA 17055 GINA SPRENKLE by handing to OFFICE MANAGER a true and attested copy of COMPLT-CONFES JUDGMENT together with and at the same time directing Her attention to the contents thereof. Sheriff's Costs: So Answers: Docketing 18.00 Service 11.70 Affidavit .00 Surcharge 10.00 R. Thomas Kline' nn 39.70 02/25/2009 DEED PETRAKIS BLUM Sworn and Subscibed to By: before me this day eputy Sheriff of A.D. -TI ' Ci fii'? REAGER & ADLER, P.C. BY:JOHN H. PIETRZAK, ESQUIRE Attorney I.D. No. 79538 Email: Jpietrzak(a,ReagerAdlerPC.com BY: THOMAS O. WILLIAMS, ESQUIRE Attorney I.D. No. 67987 Email: Twilliams(a,ReagerAdlerPC.com 2331 Market Street Camp Hill, PA 17011 Telephone: (717) 763-1383 Facsimile: (717) 730-7366 Attorneys for World Premiere Home Entertainment. Inc. PR REAL ESTATE, LLC &, HOME ELITE, LTD., Respondent/Plaintiffs, IN THE COURT OF COMMON PLEAS, CUMBERLAND COUNTY, PENNSYLVANIA V. WORLD PREMIERE HOME ENTERTAINMENT, LLC, Petitioner/Defendant : CIVIL ACTION -LAW NO. 09-911 CONFESSION OF JUDGMENT DEFENDANT. WORLD PREMIERE HOME ENTERTAINMENT. LLC'S PETITION FOR RELIEF FROM CONFESSED JUDGMENT AND NOW, comes the Petitioner/Defendant, World Premiere Home Entertainment, LLC, by and through its attorneys, Reager & Adler, P.C., and files the following Petition for Relief from Confessed Judgment. 1. Petitioner World Premiere Home Entertainment, LLC is a Pennsylvania limited liability company, with an address of 5140 Trindle Road, Suite 100, Mechanicsburg, PA 17055. 2. World Premiere Home Entertainment, LLC ceased doing business in December 2005 and reorganized as World Premiere Home Entertainment, Inc. in December 2005. 3. World Premiere Home Entertainment, Inc. is a successor in interest to World Premiere Home Entertainment, LLC. 4. Kenneth C. Bosley is the President of World Premiere Home Entertainment, Inc. Kenneth C. Bosley, World Premiere Home Entertainment, LLC and World Premiere Home Entertainment, Inc. shall be collectively referred to hereinafter as "Petitioner". 5. Respondent PR Real Estate, LLC is a Pennsylvania limited liability company, with an address of 45 E. City Line Ave, #377, Bala Cynwyd, Pennsylvania 19004. 6. Respondent Home Elite, Ltd. is a Pennsylvania business corporation, with an address of 10 Levering Circle, Bala Cynwyd, Pennsylvania 19004. 7. Scott Homel is the President of Home Elite, Ltd. 8. Pintzuk Brown Realty Group, Inc. is a Pennsylvania Corporation with an address of 700 Oakmont Road, Phoenixville, Pennsylvania 19460. Pintzuk Brown Realty Group, Inc. acted as agent and real estate broker for Respondents PR Real Estate, LLC and Home Elite, Ltd. at all times relevant to this matter. 9. Scot Homel is the President of Pintzuk Brown Realty Group, Inc., and Anthony Sembello is its Vice President. 10. Respondents PR Realty Group, LLC and Home Elite, Ltd. shall be collectively referred to hereinafter as "Respondents". 11. On February 13, 2009, Respondents filed a Confession of Judgment in the amount of $19,496.11 against the Petitioner. 12. Petitioner was served with the Confession of Judgment on February 24, 2009. Factual Bac1mround 13. On or about June 1, 2004, Petitioner entered into a commercial lease agreement (hereinafter "Lease") with Wesley Associates (hereinafter "Wesley") for 2,000 square feet of retail commercial space in the Eastgate Plaza in Hampden Township, Cumberland County, Pennsylvania. A copy of the lease is attached to Respondents' Complaint for Confession of Judgment. 14. In 2004 the leased premises were sold by Wesley to Respondents, who took assignment of Petitioner's Lease. 15. Petitioner's Lease was for a three-year term and included a fixed monthly rent of $1,500.00 for the first year, $1,583.33 for the second year and $1,666.67 for the third year and any holdover period. 16. Petitioner and Respondents entered into a Lease amendment dated November 15, 2004 that amended the Lease to increase the monthly gross rent to $1,666.67 per month after January 1, 2006. This amendment did not extend the term of the Lease. 17. The Lease did not require Petitioner to pay common area maintenance charges (hereinafter "CAM charges") or any operating expenses of the landlord. 18. Petitioner was not charged any CAM charges or assessed any amounts for the owner's operating expenses for 2004 when Wesley owned the leased premises. 19. In September 2006, Petitioner received an invoice from Respondents stating that Petitioner owed $980.53 for "2005 operating expenses." Petitioner telephoned Respondents to inquire what the invoice was for, and was informed that the invoice was for "maintenance fees". 20. Petitioner continued to inquire with Respondents as to the basis for the invoice as Petitioner's Lease was for gross rent and did not include any payment of CAM charges or operating expenses. Respondents failed to respond to these inquires. 21. Petitioner, through its counsel, sent a letter dated October 30, 2006 to the Respondents notifying them that Petitioner disputed responsibility for the maintenance or operating expenses. A true and correct copy of the October 30, 2006 letter is attached hereto as Exhibit "A". 22. In a fax dated December 5, 2006, Mary Duffy from Pintzuk Realty informed Petitioner that the operating expenses were to cover water and sewer charges for each year. A true and correct copy of the December 5, 2006 fax is attached hereto as Exhibit "B". 23. Petitioner spoke with Mary Duffy and requested an explanation for how the charges had been determined, but was given no explanation. 24. In July 2007, Respondents sent Petitioner an invoice for 2006 operating expenses in the amount of $1,505.45. Petitioner's bookkeeper paid the invoice without the Petitioner's knowledge. Petitioner notified Mary Duffy at Pintzuk Realty via telephone that Petitioner disputed responsibility for this charge, but Respondents have never refunded or credited the payment of $1,505.45. 25. In July 2008, Respondents sent Petitioner an invoice for 2007 operating expenses in the amount of $922.85. Petitioner did not pay this invoice. 26. Petitioner maintained one employee in the leased premises. By comparison, there were four restaurants located in the remaining space leased by Respondents in the building. 27. Petitioner asked Respondents to account for how it assessed sewer and water charges between Petitioner and the other tenants. Respondents never provided this information. 28. Article 10(d) of Petitioner's Lease required Petitioner to pay "all bills for telephone services, gas, electricity, fuel, oil, water, sewer and similar utilities consumed on or applicable to the Demised Premises." (emphasis added). 29. Petitioner believes and therefore avers, that Respondents did not charge Petitioner merely for the amount of water and sewer services consumed on or applicable to the leased 4 premises, but rather that Respondents averaged the total cost of all sewer and water consumed by Petitioner (one employee) and the four restaurants in the building, and charged all tenants equally, thereby grossly overcharging Petitioner, in violation of Article 10(d) of the Lease. 30. Petitioner therefore disputes any amounts included in the confessed judgment that related to CAM charges or Respondents' operating expenses 31. Petitioner's Lease expired on May 31, 2007. Petitioner did not sign any extension to the term of the Lease with Respondents. Petitioner remained in the leased premises from June 2007 through November 2008 as a holdover tenant with a month-to-month tenancy. 32. Under Article 34 of the Lease, upon the expiration of the lease on May 31, 2007, at Respondents' option, Petitioner was to be considered either as having a tenancy from month- to-month or from year-to-year. 33. After the May 31, 2007 expiration of the Lease, Anthony Sembello told Petitioner verbally that Petitioner could stay on as a month-to-month tenant. 34. Petitioner therefore had a month-to-month tenancy after the expiration of the Lease on May 31, 2007 through November 2008 when Petitioner vacated the leased premises. 35. As a month-to-month tenant, Petitioner only had to give Respondents' one month's notice of his intention to terminate the month-to-month tenancy and vacate the leased premises. 36. Nevertheless, as averred below, Petitioner first notified Respondents of his intention to terminate the month-to-month tenancy in June 2008, and did not vacate the leased premises until the end of November 2008. Therefore, Petitioner provided greater than the 90-day notice that Respondents allege was required in their Complaint for Confession of Judgment. 37. Respondent's contention that Petitioner had to give 90 days' notice before vacating is incorrect in any respect. The First Amendment to the Lease, attached to Respondent's Complaint for Confession of Judgment as Exhibit "A", which replaced Exhibit D to the Lease, clearly states that the 90 day notice requirement applied only to a one-time option to terminate the lease. Otherwise, at the expiration of the term of the Lease, there was no ongoing requirement to give 90 days' notice. 38. Petitioner's rent remained at $1,666.67 per month throughout the month-to-month tenancy. 39. Petitioner paid his rent every month from June 2004 through June 2008. 40. In early June 2008, Petitioner gave Sembello oral notice that Petitioner intended to terminate its month-to-month tenancy and vacate the leased premises by the end of July 2008. Petitioner told Sembello that he was winding down his business operations in the leased premises in anticipation of consolidating with another store owned by Petitioner in the area. In fact, Petitioner let its sole employee go at the end of June 2008. 41. Sembello told Petitioner that Respondents would offer Petitioner an "incredible sweetheart deal" if he would agree to stay as a tenant. The reason for this was that the building typically had approximately a 50% vacancy and Respondents wanted to avoid having any more tenants leave, and to possibly fill more space by having Petitioner move his consolidated operations to the Respondent's building. 42. Petitioner met with Scott Homel and Sembello on June 17, 2008 to discuss his plans to vacate the leased premises by the end of July 2008. 6 43. Petitioner requested that Homel and Sembello resolve the outstanding issue of the disputed outstanding CAM charges before July 2008. Homel responded, "I'm not worried about the CAM fees. I could care less. You don't pay them anyway, do you?". 44. Petitioner told Homel and Sembello that he had to make a quick decision since he had wound down operations at the leased premises and had to vacate the leased premises by the end of July 2008 if they could not agree upon a new lease. 45. Homel further told Petitioner that Respondents were "not worried about a couple months' rent" while Respondents worked on a proposal for a new lease. 46. Petitioner understood Homel's representations to mean that Respondents had waived the disputed outstanding CAM charges and also waived payment of any rent while Respondents prepared a new lease proposal. 47. Despite Petitioner's request that Respondents forward a proposal for a new lease before the end of June 2008, Sembello forwarded the proposal on behalf of Respondents in the second week of July 2008. 48. Respondents' proposal did not contain any "sweetheart deal", but rather was included the additional space needed to consolidate Petitioner's operations at the same cost per square foot that Petitioner had already been paying. 49. Petitioner contacted Sembello for clarification because Petitioner thought the offer was a mistake. Neither Respondents nor Sembello responded directly to Petitioner's inquiries. On July 29, 2008, Petitioner received a second proposal from Sembello that was 10% higher in cost than the first proposal. 50. It now seemed obvious that Respondents were not going to offer a favorable deal for Petitioner to stay in the leased premises. Because July 2008 was now at an end, Petitioner revised his plans to vacate the leased premises until October or November 2008. 51. Petitioner next heard from Respondents on October 10, 2008 when Homel and Sembello came to Petitioner's store to ask why Petitioner was moving. Petitioner told Homel and Sembello that he was moving since the proposal forwarded by Respondents was not favorable. Homel acted surprised and requested again that Petitioner consider staying on as a tenant. 52. Petitioner then told Homel and Sembello that they still had not resolved the disputed charges for operating expenses and reminded them that he had not paid rent for July, August, September and October 2008 since Petitioner had done no advertising and had essentially been closed since June 2008. 53. Homel replied, "I'm not worried about the CAM fees and I'm not worried about the past few months' rent. Its clear you're not conducting business here and its not like there are people lined up to rent this space. We don't even have a lease, anyway." 54. Petitioner understood Homel's representations to mean that Respondents were waiving the disputed operating expense charges and waiving rent for July through October 2008 since Petitioner had remained in the space in reliance on Respondents representations that they would offer a favorable deal to remain as a tenant, which had not been forthcoming, and because Petitioner had ceased most business operations as of June 2008. 55. Respondents then provided Petitioner with a master key so that Petitioner could look at other vacant space in the building. 56. Petitioner held a "moving sale" at the leased premises on October 11, 2008. 57. Sembello sent Petitioner an email on or about October 21, 2008 to inquire whether Petitioner was going to forward a proposal for a new lease to Respondents. 58. On November 5, 2008, Homel and Sembello ripped down a sign Petitioner had placed on the door of the leased premises notifying customers that Petitioner's business had moved. 59. Petitioner called Homel on November 21, 2008 and notified Homel that Petitioner was not going to sign a new lease with Respondents. Homel's demeanor became very unpleasant at this news. 60. Petitioner vacated the leased premises by the end of November 2008 and returned the key to Respondents by certified mail, directed to Respondents' agent, Pintzuk Brown Realty Group, Inc. 61. Petitioner received a letter from the Respondents' attorney in late December 2008 demanding $36,000.00 for rent, late fees and attorney's fees. 62. Petitioner corresponded with Homel by telephone and email in December 2008 and January 2009 to discuss the letter. Petitioner disputed the amounts alleged to be owing because Petitioner only remained in the leased premises beyond July 2008 in reliance on Respondents' representations of a "sweetheart deal" that never materialized, and because Petitioner lost a considerable amount of business by delaying the move of his business and due to Respondents' removing the sign that directed customers to his new location. 63. Nevertheless, in an effort to put this matter behind him, Petitioner offered to pay rent for July through November 2008 as an effort to resolve the dispute, and although Respondents initially agreed, they ultimately refused this offer. 9 64. Petitioner received the confession of judgment filed by Respondents on February 24, 2009. Basis to Strike the Confessed Judgment 65. Pennsylvania Rule of Civil Procedure 2959 authorizes Petitioner to petition the Court to strike the confessed judgment. 66. "A petition to strike a judgment may be granted only for a fatal defect or irregularity appearing on the face of the record." Resolution Trust Corp. v. Copley Qu-Wayne Associates, 683 A.2d 269, 273 (Pa. 1996). 67. "Generally, such clearly established defects justifying a motion to strike arise when the judgment entered is for a grossly excessive amount or includes recovery for items that were not permitted in the contract authorizing a confession of judgment." J.F. Realty Co. v. Yerkes, 398 A.2d 215, 217 (Pa. Super. 1979). 68. The confessed judgment should be stricken because Article 40 of the Lease requires that all disputes be submitted to arbitration. 69. As the Lease required arbitration of disputes, Respondents were not authorized to confess judgment of the amounts in dispute. Petitioner is therefore entitled to have the confessed judgment stricken. 70. Additionally, the confessed judgment should be stricken because Petitioner did not understand or effectively consent to the confession of judgment clause contained in the Lease. 71. At the time Petitioner executed the Lease, Respondents did not inform Petitioner that the Lease contained a confession of judgment clause or bring it to his attention in any manner. 10 72. Further, the confession of judgment clause contained in the Lease is not clear and conspicuous in that: a. The confession of judgment clause is concealed deep within the body of the Lease, in subsection (b)(6) of the twenty-fifth paragraph [Article 25(b)(6)1; b. There was no separate lease guarantee which contained a confession of judgment clause as its first paragraph; c. To be bound, the Petitioner had to execute only the Lease agreement; Petitioner was not required to execute a separate guaranty; d. The paragraph containing the confession of judgment clause was not captioned, but appears in small print along with the other uncaptioned paragraphs of the lease agreement; e. No warning in bold face type immediately followed the confession of judgment clause. 73. An inconspicuous confession of judgment clause such as the one contained in Petitioner's Lease "is invalid and unenforceable on its face." Serfass v. Kreykenbohm, 12 Pa. D & C.3d 228 (1979); See also, Provco Leasing Corporation v. Safin, 402 A.2d 510 ( Pa. Super. 1979). Basis to Open the Confessed Judgment 74. Pennsylvania Rule of Civil Procedure 2959 authorizes Petitioner to petition the Court to open the confessed judgment. Rule 2959(e) of the Pennsylvania Rules of Civil Procedure provides that, in a proceeding to open a confessed judgment, "if evidence is produced 11 which in a jury trial would require the issues to be submitted to the jury the court shall open the judgment." 75. A court should open a confessed judgment "when the petitioner acts promptly, alleges a meritorious defense and presents sufficient evidence of that defense to require submission of the issues to the jury." Id., quoting, First Seneca Bank & Trust Co. v. Laurel Mountain Development Corp., 485 A.2d 1086, 1088 (Pa. 1984). 76. In making this determination, the court employs the same standard as that of the directed verdict, viewing all evidence in the light most favorable to the petitioner and accepting as true all evidence and proper inferences supporting the defense while rejecting adverse allegations of the party obtaining the judgment. Suburban Mechanical Contractors, Inc. v. Leo, 502 A.2d 230 (Pa. Super. 1985). 77. The confessed judgment should be opened because Article 40 of the Lease requires that all disputes be submitted to arbitration. 78. It is proper to open a confessed judgment where it was entered upon a lease that also contained an agreement to submit disputes to arbitration. Duquesne Light Company v. Pittsburgh Railways Company, 162. A.2d 350 (Pa. 1960). 79. Additionally, the confessed judgment should be opened because Respondents have confessed judgment for excessive amounts, or amounts not due. 80. Although Respondents do not provide a breakdown of the amounts included in the "principal" amount of $17,723.74 for which they have confessed judgment, it is believed and therefore averred that Respondents have included the following amounts in the confessed judgment: monthly rent of $1,666.67 per month for the months of June-December 2008 and 12 January-February 2009; 5% late fees for each months' rent, and; disputed operating expenses in the total amount of $1,903.38. 81. On June 25, 2008, Petitioner paid rent for June 2008 in the amount of $1,751.00, which included a late fee of $83.33. A true and correct copy of Pintzuk Realty's ledger showing this payment is attached hereto as Exhibit "C". 82. Petitioner was relieved of its obligation to pay rent for the months of July through November 2008 while Respondents were preparing a proposal for a lease extension, based upon the Respondents representations, as averred earlier in this petition. 83. Respondents are therefore equitably estopped from confessing judgment for rent they allege was due for the months of July through November 2008. 84. Petitioner gave Respondents notice of its intent to terminate the month-to-month tenancy in June 2008. Petitioner vacated the leased premises and returned the key to the Respondents by the end of November 2008. Therefore Petitioner gave adequate notice of its intention to terminate its tenancy, even assuming arguendo, that Petitioner was required to give 90 days' notice as Respondents allege. 85. Under no circumstances is Petitioner responsible for rent for any month after November 2008, including the months of December 2008 or January and February 2009, which Respondents have included in the confessed judgment filed against Petitioner. 86. Petitioner was not required to pay "operating expenses" under the lease, so any amounts included in the confession of judgment related to Respondent's "operating expenses" are not authorized by the Lease. 87. Respondents charged Petitioner amounts in excess of sewer/water consumed or applicable to the leased premises, in violation of the terms of Article 10 of the Lease. Any 13 amounts included in the confessed judgment as "operating expenses" or "maintenance charges" related to excess charges for sewer and water are therefore not authorized by the Lease. 88. No Judge has ruled upon any issue in this matter previously. WHEREFORE, Petitioner World Premiere Home Entertainment, LLC, respectfully requests that this Honorable Court issue a stay of the proceedings in this matter, including enforcement of the confessed judgment, and issue a Rule to Show Cause why the confessed judgment in this matter should not be stricken or opened. Respectfully submitted, REAGER & ADLER, P.C. Date: March 20, 2009 Jo : Pietrzak, Esquire// `? Ap6mey I.D. No. 79538 ?/ Thomas O. Williams, Esquire Attorney I.D. No. 67987 Attorneys for Petitioner, World Premiere Home Entertainment, Inc., successor in interest to World Premiere Home Entertainment, LLC 14 .? r ? . CHARLES W. RUBENDALLIL ROBERT L WELDON EUGENE E. PEPINSKY, JR. JOHN H. ENOS IQ GARY E. FRENCH DONNA S. WELDON BRADFORD DORRANCE JEFFREY S. STOKES ROBERT R. CHURCH STEPHEN L. GROSE R. SCOTT SHEARER ELYSE E. ROGERS CRAIG A. LONGYEAR JOHN A. FEICHTEL STEPHANIE KLEINFELTER DONALD M. LEWIS= ERIC R. AUGUSTINE TODD F. TRUNTZ CAROL L VERISH KEEFER WOOD ALLEN & RAHAL, LLP ATTORNEYS AT LAW 210 WALNUT STREET P. O. BOX 11963 HARRISBURG, PA 17108-1963 PHONE (717) 255-8000 EIN No. 23-0716135 www.keefeiwood.com (717)255-8017 sshearerfteeferwood com 46 Floor Fax: (717)255-8042 ESTABLISHED IN 1878 OF COUNSEL: HEATH L ALLEN N. DAVID RAHAL SAMUEL C. HARRY WEST SHORE OFFICE: 635 NORTH 12" ST. SUITE 400 LEMOYNE, PA 17043 (717) 612-5800 WRITER'S CONTACT INFORMATION: October 30, 2006 Pintzuk Brown Realty Group 491 Old York Road Suite 200 Jenkintown, PA 19046. Re: World Premier Home Entertainment, LLC Lease - Eastgate Plaza Dear Gentlemen: I am writing this letter as attorney for World Premier Home Entertainment, LLC, which is a tenant having a place of business located in Eastgate Plaza, Hampden Township, . Cumberland County, Pennsylvania, and referenced as Store 17 on Exhibit A to its Agreement of Lease. The purpose of this letter is to notify you of numerous issues and concerns that although previously brought to your attention on repeated occasions by my client (and other tenants) have remained unresolved and continue to cause serious problems for World Premier and other tenants at this same location and have and continue to cause not only the loss of business but also has caused illnesses to employees working at this store. I will address each of these concerns along with a formal demand for a prompt resolution of them. Before discussing the unresolved issues that have previously been brought to your attention, I would first note that on September 22, 2006, my client received an invoice from you a-'•?. Pintzuk Brown Realty Group -2- October 30, 2006 for the rent due for these premises. Included on that statement was an entry marked 2005 operating expense reconciliation in the amount of $980.53. I have reviewed the Lease Agreement and I am unable to locate any provision in that Lease Agreement that provides for a tenant's responsibility to reimburse the landlord for any operating expenses. As a matter of fact, the Lease Agreement itself provides that the tenant agrees to pay a "fixed monthly rental" in the specific monthly amounts set forth therein. Would you please provide me with an explanation for the legal authority for such alleged liability of my client for such charge? If my client has a legal obligation for this charge, please provide me the details of how this charge was arrived at, with supporting documentation, together with an explanation as to why this is being billed nine months after the close of the prior calendar year and why similar charges were never invoiced in prior years. If my client is legally liable for this charge and the charge is properly computed, my client will make payment. As you have previously been notified by my client, there is a very foul odor in his store that is coming from outside of his leased premises. As best my client can tell, it is coming from a vacant property next to his store and very likely may be caused by the fact that the water has been shut off to those premises and subsequently the water evaporated from the sewer trap in the toilet or sink, allowing very strong sewer gas into the premises. This odor is very foul, has made his employees sick and many customers have and continue to leave his premises due to this foul odor. I understand that other tenants have also complained about this in the past. The only response to date to this concern is that on one occasion a maintenance man of some type visited a restaurant on the other side of the vacant store which had also complained about the odor, but was unable to locate the source of this odor and left (subsequently sending an invoice to the restaurant for the visit). No further attempts, to the best of our knowledge, were made to locate and eliminate the cause of this odor and it continues to make my client's employees sick and continues to cause many customers and potential customers to leave the store or refuse to enter the store due to this odor. It is very likely that this odor may.be a potential health hazard and may very well be violative of various governmental requirements. We are requesting that the source of this odor be located and eliminated within 15 days from the receipt of this letter. The exterior lights at Eastgate Plaza are not being properly maintained and are not on a reliable timer. They often come on at noon time and go off at 6:00 p.m. Last year, my client made over 13 calls and Emails to you regarding this matter and no corrective action was taken. Subsequently, on February 1, 2006, my client's premises were broken into, the premises damaged and merchandise: stolen and damaged. The first thing the investigating police officer stated was that the lack of adequate lighting in the area was a serious concern. As I understand, after that robbery, some work was performed on the lights, but they are still not operating properly, and this continues to present a serious risk for the premises both for safety. purposes and for potential future robberies, as well as provide an unfavorable public response to the shopping center, in general. We are requesting that this lighting problem be resolved within 30 days. Pintzuk Brown Realty Group -3- October'30, 2006 Both my client and several other tenants were promised a new sign out front.. They were told in April that it would be up in early May. When that did not arrive, my client contacted Anthony Sembella and received back a long voicemail confirming the installation of. the new sign and apologizing for this delay and promising that the sign would be up within a week. It is now the middle of October. and that sign is still not up. I am requesting'that you notify us in 15 days if you will be installing a new sign out front as you have promised on numerous occasions and when that sign will be completed. If you are not going to be installing this new sign as promised, please notify me so. that. my client can take appropriate action with . respect to his signage. During this past spring and summer, no maintenance was performed on the grounds. Weeds grew up to three feet high, trash piled up and the outside premises became very unsightly. There were endless calls, Emails and letters, both from my client and from other tenants regarding this issue which had no affect. As I understand, ultimately several tenants withheld partial payment, although my client did not. Finally, in late August this maintenance was performed. We do have many photos that document the failure to maintain the premises. We are requesting assurances that you will continue to maintain these premises timely and properly and in a manner that will create a favorable impression on the tenants and customers and potential customers of the Eastgate Plaza. Further, I am also requesting assurances that if you are notified that the premises are not being properly maintained, you will immediately respond to and satisfactorily address those concerns. As noted above, these issues have caused and continue to cause the loss of business to my client, have caused and continue to cause serious health concerns for my client and his employees and customers, and continue to generally provide a very poor appearance of the Eastgate Plaza. These are all areas that. are clearly your legal responsibility as landlord. My client has lived up to his responsibilities and obligations under the Lease and clearly has the right to expect and demand that you also comply with your responsibilities and obligations. Your continued failure to do so may very well constitute a constructive eviction of my client which could render you liable for damages. I am hereby requesting that each of the above concerns be rectified in a manner satisfactory to my client (and the other tenants, as applicable) as described above and that some procedure be put into place to assure that any fixture concerns that arise are timely and properly responded to by you and your agents. My client is also entitled to be compensated for the damages to his business caused by your failure to properly maintain the premises and comply with your obligations as the landlord of the premises. Pintzuk Brown Realty Group -4- October 30, 2006 If you would like to discuss any of these matters further, please feel free to contact me. Very truly yours, KEEFER WOOD ALLEN & RAHAL, LLP By R. Scott Shearer RSS/krs cc: Mr. Kenneth Bosley World Premiere Home Entertainment, LLC Dec. 5. 2006 11:54AM N o . 9 7 9 8 P. 1 PINTZUK BROWN REALTY GROUP Fa csimile To: Ken Bosley Fax No. 717-781-M From Mary Duffy Fax No. 215-881-8983 CO Pages: 4 included cover Corte; 12/52006 Rai 200+5 CAM Reoonc on CMrges Ken, As per our conversation, here is a copy of the letter and spreadsheet that was sent regarding. the charges that are on your account For your convenlence, I have also included a copy of the page with the Lease document that stipulates the payment of utilities, please feel he to contact me with any other questions. cordially, Mary Duffy Asset Akmger Fintzuk Brown Realty Group 215$814980 x209 mpd?Dlbrg.net pgc 5. 2006 11:54AM _ PINT&£BROWN REALTY GROUP No,9798 P- 2 May 19, 2006 Via a ied '1 Kennett Bosley Bam Pow Gaming 5205 Simpson Ferry Road Unit It Mechanicsburg PA 17055 RE: 2005 Ong Ume Expense / M Reconciliatfan To Whom It May Concern: Attached please fiord the 2005 Operating Expense Reconciliation for your Leased Premises at East Gate Plaza, If the attaches statement reflects a payment you owe, please remit payment inunediaa<ely, if the attached statement reflects a credit we owe you, it will appear as a credit on your next rental invoice. Thank You, R. Christopher Datz, Director of Asset Management Services Enclosure CC: Mary Duffy 0444 0 kao? 40 % 4w An 491 Old Yotk Road, Suite 200 * Jenkintown, PA 19046 office: 215-881.8980 a Fox: 215-881-8983 s Web: www.PBRGINC.com Dgc. 5. 2006 11:55AM No-9798 2006 Adual Evense PREPARED FOR: SAM POW OAMING TENANTS OCCUPANCY PERCENTAGE 5.66% CAIN rMM REPARS & MAINTENANCE. _ WAC tie $ P Ewcbtw $ - .?ai Bwwhv & LVXI$Q plug $ _ Removal $ Parking Lot $s Total Repairs & Maintenance UTLMES Common Area Electric Water $ 7,670.70 Sewer $ 9,964.09 Total UH M"* $ 17,6309 SIERME Trash Removal s S upplis / Postage / Mlw S Gensfal Management Fees s _ Tow Servw ; P. 3 Dec. 5. 2006 11:55AM No-9798 P. 4 ":. :tordinance permitting any assessment for public betterments or improvements to be paid over a R period of time, Landlord shall, nevertheless, be deemed to have taken such benefi t so that the :: . ='=Y 'Real Estate Taxes" shall include only.the current annual installment of any such assessment and ;.r the interest on unpaid installments. AR11M R 9 - Use 8Ud n emlin s (a) Tenant shall use and occupy the Demised 'remises solely for the use of an electronic gaming center and related uses, trading and doing business under the name of Bam Pow Gaming or such other trade name as Landlord may approve in writing. (b) Tenant shall operate its business in all of the Demised premises continuously, actively and diligently during the entire term of this Lease and shall at all times keep the. Demised Premises fully equipped and fixtured and shall maintain a full inventory of merchandise.- 4mmt ehaU AlL . C! d ds 81 ! X-r% o V b o eames. Tenant shall use for clerical offices or other non-selling purposes only such space in the Demised Premises as is from time to time reasonably required for conduct of Tenant's business at the Demised Premises. j, (c) Without the prior written approval of Landlord, in Landlord's sole discretion, Tenant shaU not display or sell goods or merchandise in the Common Areas or otherwise outside of the Demised Premises. • ?17Ti('T,R 10 - Tjtifities ? (a) The Landlord agrees unng the term of this Lease or any extensions thereof, the Demised Premises shall, at all times, be connected to the electric, gas, water and X sewer lines or systems, as applicable, serving the Shopping Center.. •i (b) Landlord shall not be liable to Tenant for the failure of any of the above utility services. However, Landlord agrees, in the event of any suspension or failure of service, to proceed with all due diligence to restore or cause the restoration of such services as soon as is reasonably practical under the circumstances. Tenant will not hold Landlord responsible if the ' gas to the Demised Premises becomes unavailable, nor will Tenant hold Landlord responsible for any equipment conversion or installation costs caused by such unavailability of gas. i (c) Landlord agrees that the connections of the electric, gas, water and sewer lines will be brought to the Demiscd Premises to the points designated, in accordance with Exhibit B. .4 e ant shall promptly pay, as the same becomes due, all bills for telephone (d) i ty, fuel, oil, water, sewer and similar utilities consumed on or applicable to services,, gas, p the Demised Premises. 6 - Pintzuk Brown Realty Group 491 Old York Road Suite 200 Jenkintown, PA 19046 Genius Home Theatre $205 SIMPSON FERRY RD SUITE # 17 MECHANICSBURG, PA 17050 Statement Account: ceast -17 - bampow Date: 10/01/08 Payment: $ Date Descriptiiin: ; :. Charges Payments Balance Balance Fonuard 0.00 03/01/06 RENT (03/2006) 1,666.67 1,666.67 03/13/06 Chk# 9002 1,666.67 0.00 04/01/06 RENT (04/2006) 1,666.67 1,666.67 04/11/06 Chk# 9075 1,666.67 0.00 05/01/06 Chk# 9158 10666.67 (1,666.67) 05/01/06 RENT (05/2006) 1,666.67 0.00 06/01/06 RENT (06/2006) 1,666.67 1,666.67 06/08/06 Chk# 9223 1,666.67 0.00 (E}72006}........... ............. ................ _..._..... .... .---.._...__._..1.666:67 _.._.__.._.._..... _., 07/17/06 Chk# 9307 1,666.67 0.00 08/01/06 RENT (0812006) 1,666.67 1,666.67 08/04/06 Chk# 8877 1,666.67 OAO 09/01/06 RENT (0912006) 1,666.67 1,666.67 -09/06/06 Chl4-8935.... 1,666.67 ..0:00... 09%19%06 2005 Operating Expense Reconcifiation' 980.53 980.53 10/01/06 RENT (1012006) 1,666.67 2,647.20 10/02106 Chk# 9021 1,666.67 980.53 11/01106 RENT (11/2006) 1,666.67 2,647.20 11106/06 November Late Fees, 5% of $1666.67 83.33 2,730.53 .12/01/06 RENT (12/2006). 1,666.67 4,397.20 12106/06 December Late Fees, 5% of $3333.34 166.67 4,563.87 12/13/06 Chk# 3500.00 3,500.00 1,063.87 ' 01/01/07 RENT (01/2007) 1,666.67 2,730.54 01106/07 Chk#9211 1,667.67 1,062.87 02101/07 Chk# 9305 1,666.67 (603.80) 02/01/07 RENT (02/2007) 1,666.67 1,062.87 03/01/07 Chk# 1011 ' 1,667.67 (604.80) 03/01/07 RENT (03/2007) 1,666.67 1,061.87 04/01/07 RENT (04/2007) . 1,666.67 2,728.54 04/02/07 Chk# 9442 1,667.67 1,060.87 05/01/07 RENT (05/2007) 1,666.67 2,727.54 05/03/07 ' Chk# 9507 1,667.67 1 059.87 06101/07 Chk# 9579. 1,667.67 , (607.80) Page 1 of 3 Pintzuk Brown Realty Group 491 Old York Road Suite 200 Jenkintown, PA 19046 Genius Home Theatre 5205 SIMPSON FERRY RD SUITE # 17 MECHANICSBURG, PA 17050 Statement Account ceast - 17 - barnpow Date: 10/01/08 Payment $ Date Description Charges Payments Balance 06/01/07 RENT (06/2007) 1,666.67 1,058.87 07101/07 RENT (07/2007) 1,666.67 2,725.54 07105/07 Chk# 9632 1,667.67 1,057.87 07/20/07 2006 CAM Reconciliation Charge 1,505.45 2,563.32 08/01/07 Chk# 9709. 1,505.45 1,057.87 08/01/07 Chk# 9708 1,667.67 (609.80) 08/01/07 RENT (08/2007) 1,666.67 1,056.87 09/01/07 RENT (09/2007) 1,666.67 2,723.54 09111/07 Chk# 9765 1,666.67 1,056.87 09/91f07 ... ..............REN? - _ ._.._... _.........._._._..._.......... ....... ........... ..... ................. .... ....._..__'N00- _._.._...._.:........ .........1 {f57 87 - -._..._. 10101/07 RENT (10/2007). 1,666.67 2,724.54 10/08/07 Chk# 9848 1,667.67 1,056.87 11/01/07 RENT (11/2007) 1,666.67 2,723.54 11/02/07 Chk# 9924 1,667.67 1,055.87 92/01107 RENT-(42/2007) 1,666:67 2;722:54. 12%10/07. Chk# 9981 1,667;67 1,054.87 01/01/08 RENT (01/2008) 1,666.67 2,721.54 01/11/08 Chk# 10063 1,666.67 1,054.87 02/01/08 RENT (02/2008) 1,666.67 2,721.54 02/06/08 Feb Late Fees, 5% of $1666.67 83.33 2,804.87 02/29/08 Chk# 10156 1,667.67 1,137:20 03/01/08 RENT (03/2008) 1666.67 2,803.87 03/06/08 Mar Late Fees, 5% of $1666.67 83.33 2 887.20 04/01/08 RENT (04/2008) 1,666.67 , 4 553.87 04/08/08 Chk# 10219 3,417.67 , 1 136.20 05/01/08 RENT (05/2008) 1,666.67 , 2 802.87 05/06/08 May Late Fees, 5% of $1666.67 83.33 , 2 886.20 05/23/08 Chk# 10286 1,667.67 , 1 218 53 06101/08 RENT (06/2008) 1,666.67 , . 2 885.20 06/06108 June Late Fees, 5% of $1666.67 83.33 , 2 968 53 06/25/08 Chk# 10335 1,751.00 , . 1 217 53 07/01/08 RENT (0712008) 1,666.67 , . 2 884 20 .07/15/08 2007 CAM Reconciliation Charge 922 85 , , 08/01/08 RENT 08/2008 ( ) . 1 666 67 3,807.05 , . 5,473.72 Page 2 of 3 Pintzuk Brown Realty Group 491 Oki York Road Suite 200 Jenkintown, PA 19046 Genius Home Theatre 5205 SIMPSON FERRY RD SUITE # 17 MECHANICSBURG, PA 17050 Date Description:. 08/06/08 August Late Fees, 5% of $3333.34 09/01108 RENT (09/2008) 09/06/08 September Late Fees, 5% of $5000.01 10/01/08 RENT (10/2008) Statement Account: ceast -17 - bampow Date: 10/01/08 Payment: $ Charges Payments 166.67 1,666.67 250.00 1,666.67 Balance 5,640.39 7,307.06 7,557.06 9,223.73 Current 30 Days 60 Days 90 Days Amount Due -.__...1,916.67_ -- - -1,833.34 r_ 2,589.52 2,884.20 -- 9,223.73 Page 3 of 3 VERIFICATION I, Kenneth Bosley, am the President of World Premiere Home Entertainment, Inc., and, as such, I am authorized to verify the averments of the foregoing document are true and correct to my personal knowledge, information and belief. I understand that false statements herein are made subject to the penalties of 18 Pa. C.S. §4904, relating to unsworn falsification to authori- ties. Date: 3 ° 0 By: L,-,4-- Kenneth Bosley 3 a '; `? REAGER & ADLER, P.C. BY:JOHN H. PIETRZAK, ESQUIRE Attorney I.D. No. 79538 Email: Jpietrzak(a7ReagerAdlerPC.com BY: THOMAS O. WILLIAMS, ESQUIRE Attorney I.D. No. 67987 Email: Twilliam(a)Rea eg rAdlerPC.com 2331 Market Street Camp Hill, PA 17011 Telephone: (717) 763-1383 Facsimile: (717) 730-7366 Attorneys for World Premiere Home Entertainment Inc. PR REAL ESTATE, LLC &, HOME ELITE, LTD., Respondent/Plaintiffs, IN THE COURT OF COMMON PLEAS, CUMBERLAND COUNTY, PENNSYLVANIA V. WORLD PREMIERE HOME ENTERTAINMENT, LLC, Petitioner/Defendant : CIVIL ACTION -LAW NO. 09-911 : CONFESSION OF JUDGMENT CERTIFICATE OF SERVICE I hereby certify that on the date set forth below a true and correct copy of the foregoing Defendant's Petition for Relief From Confessed Judgment was served via first class U.S. mail, postage prepaid, to the following: Frank G. Murphy, Esquire Christine McGuigan, Esquire DEEB, PETRAKIS, BLUM 1601 Market Street, 26th Floor Philadelphia, PA 19103 Dated: March 20, 2009 = 713 r .. =TI i ?, i MAR 2 4 2000 6 F , PR REAL ESTATE, LLC &, HOME ELITE, LTD., Respondents/Plaintiffs, IN THE COURT OF COMMON PLEAS, CUMBERLAND COUNTY, PENNSYLVANIA V. CIVIL ACTION -LAW WORLD PREMIERE HOME NO. 09-911 ENTERTAINMENT, LLC, Petitioner/Defendant CONFESSION OF JUDGMENT ORDER AND NOW, this day of IM044 , 2009, upon consideration of the foregoing, Petitioner World Premiere Home Entertainment, LLC's Petition for Relief from Confessed Judgment, it is hereby ORDERED that: (1) a Rule is issued upon the Respondents to show cause why the Petitioner is- not entitled to the relief requested; (2) Respondents shall file and Answer to the Petition within e?0 days of this date; (3) the Petition shall be decided under Pa.R.Civ.P. 206.7; (4) depositions shall be completed within TO days of this date; (5) argument shall be held on the day of , 2009 in Courtroom No. 3 of the Cumberland County Courthouseaz! 4T.-314 ru ' ' (6) notice of the entry of this Order shall be provided to all parties by the Petitioner; and (7) all proceedings and execution upon the confessed judgment shall be stayed pending final resolution of the Petition. J. 15 ?r 0C :Q! WV LZ NVW 6002 Dol??0 -{' 311j- DEEB, PETRAKIS, BLUM & MURPHY, P.C. BY: Frank G. Murphy, Esquire Christine C. McGuigan, Esquire Identification Nos. 65886; 86784 1601 Market Street, Suite 2600 Philadelphia, PA 19103 (215) 563-0500 PR REAL ESTATE, LLC & HOME ELITE, LTD. 491 Old York Road, Suite 200 Jenkintown, Pennsylvania 19046 Attorneys for Plaintiffs, P.R. Real Estate, LLC & Home Elite Ltd. COURT OF COMMON PLEAS CUMBERLAND COUNTY CIVIL ACTION - LAW Plaintiffs, V. Docket No. 09-911 WORLD PREMIERE HOME ENTERTAINMENT, LLC 5140 East Trindle Road Mechanicsburg, Pennsylvania 17055 Defendant. RESPONSE TO PETITION FOR RELIEF FROM CONFESSED JUDGEMENT Plaintiffs, P.R. Real Estate, LLC & Home Elite Ltd. (hereinafter "Plaintiffs" or "Landlords"), by and through their attorneys Deeb, Petrakis, Blum & Murphy, P.C., file this Response in Opposition to the Petition of World Premiere Home Entertainment ("Defendant") for Relief from Confessed Judgment (the "Petition"). 1. Admitted. 2. Denied upon information and belief. 3. Denied upon information and belief. 4. Admitted upon information and belief. 5. Denied. Plaintiffs' correct address is 491 Old York Road, Suite 200, Jenkintown, Pennsylvania 19046 6. Denied. Plaintiffs' correct address is 491 Old York Road, Suite 200, Jenkintown, Pennsylvania 19046 7. Admitted. 8. Denied. Pintzuk Brown Realty Group's correct address is 491 Old York Road, Suite 200, Jenkintown, Pennsylvania 19046 9. Admitted. 10. Admitted. 11. Admitted. 12. Admitted. 13. Admitted. 14. Admitted that Plaintiffs are the Landlord and that Plaintiffs acquired the lease. 15. Denied as stated. While the annual lease amounts are admitted, it is denied that Defendant has properly stated the terms of the lease as concerns any holdover period. 16. Denied as stated. The lease amendment speaks for itself. 17. Denied as stated. The lease speaks for itself. By way of further answer, Plaintiffs are not seeking Common Area Charges from Defendant, but only the Defendant's proper share of utility charges pursuant to the express terms of the contracts. 18. Denied. Plaintiffs are without knowledge or information regarding the averments of this paragraph. Strict proof thereof is demanded. 19. Admitted in part and denied in part. It is denied only that any phone call occurred or that Plaintiffs made the statement alleged in this paragraph. 20. Denied. It is denied that Plaintiffs at any time failed to respond to Defendant's inquiries. 21. Admitted. 2 22. Admitted. 23. Denied. It is denied that any inquiry made by Defendant did not receive a full response. 24. Admitted in part and denied in part. It is admitted that Defendant paid the 2006 expense charges. The remaining averments of this paragraph are denied. 25. Admitted. 26. Denied. Plaintiffs are without information or knowledge concerning the averments of this paragraph. Strict proof thereof is demanded. By way of further response, Plaintiffs assert that the allegations of this paragraph - like so much of the Defendant's Petition - is irrelevant and a waste of the Court's time. 27. Denied. Plaintiffs at all times advised Defendant of all relevant information. 28. Admitted. By way of further response, the term "applicable" refers to that portion of the common utility charges as specified in the Lease. 29. Denied. To the extent a response is necessary, Plaintiffs assert that a yearly charge of approximately $1,000.00 for these utility charges is certainly not "grossly overcharging" as averred by Defendant. 30. Denied. Defendant's allegation is denied. 31. Denied as a conclusion of law to which no response is required. By way of further answer, it is admitted that Defendant's lease expired on May 31, 2007 and that Defendant remained in the premises without paying rent until mid-December 2008. 32. Admitted. 33. Denied. Strict proof of the averments of this paragraph are demanded at time of trial. 34. Denied as a conclusion of law to which no response is required. 3 35. Denied as a conclusion of law to which no response is required. By way of further response, assuming Defendant's allegation is correct, the amounts sought by Plaintiffs in the Confession of Judgment conform to Defendant's position. 36. Denied. The averments of this paragraph are a conclusion of law to which no response is required. By way of further response, Plaintiffs deny that any notice of termination was provided, that Defendant vacated in November 2008, or that 90 days notice was provided. 37. Denied. The averments of this paragraph are a conclusion of law to which no response is required. 38. Admitted. 39. Admitted. 40. Denied. By way of further response, Article 41 of the lease requires that all notices be in writing. 41. Denied. The averments of this paragraph are denied. First, they may constitute confidential settlement communications. Second, they are irrelevant to the issues before the Court. Third, even assuming such a conversation did occur, Defendant never claimed that Plaintiffs stated Defendant could remain in the premises rent free for some unspecified period of time - because no such promise was ever made. 42. Admitted only that representatives of Plaintiffs and Defendant met to discuss issues related to Defendant's tenancy. 43. Denied. Absent a verbatim transcript of the conversation - which could only have been obtained surrepticiously in violation of Pennsylvania law - it is outrageous that Defendant purports to quote from an alleged conversation that took place almost a year ago. 4 44. Denied. Again, any such conversations are irrelevant to the issue of whether Defendant was a holdover tenant that failed to pay rent. 45. Denied. Plaintiffs incorporate their response to paragraph 43. Further, Article 44 of the lease requires that any amendment to the lease be made in writing. Defendant's attempt to memorialize a fictional conversation in violation of the lease terms is denied. 46. Denied. Defendant's allegations in this paragraph are nonsensical. Plaintiffs incorporate its answers to the preceding paragraphs. As is illustrated by the course of events that Defendant set forth in the next few paragraphs, even if some sort of rent free arrangement had been made it was premised on a new lease being agreed to by the parties. Only a few weeks after Defendant allegedly reached this conclusion that it could remain rent free, it stated it understood that no deal that was acceptable to it was forthcoming. Thus, any belief that Defendant could remain rent free while a new lease was being negotiated was baseless after July 2008 by the very facts Defendant set forth in its Petition. 47. Denied. By way of further response, it is not clear why the less than two week period from the end of June to the second week of July 2008 is so important as to waste the Court's time with yet another unnecessary averment. 48. Denied. The terms of any negotiations speak for themselves and Defendant's characterizations are rejected. 49. Denied as stated. It is admitted only that various lease proposals were exchanged. 50. Denied. Again, Defendant's averment is nonsensical. First, it never claimed to have given any written notice as required by the lease as to its intent to vacate. Second, the fact that July was at an end has no bearing on a October or November termination 5 date - and certainly has nothing to do with failing to pay rent while the premises were occupied. 51. Denied. Again, Defendant's propensity to recapitulate conversations is both unnecessary and distracting. The issue before the Court is whether the Confession of Judgment was properly filed, served, and correct in substance. Defendant makes no allegation that there is any defect in the filing or service of the Confession of Judgment, but instead tries to claim that Landlord was not entitled to rent for the period in which Defendant occupied the premises, even though Defendant has no writing, as required by the lease, to support its fictional account. 52. Admitted in part and denied in part. It is not clear precisely what Defendant is claiming in this paragraph. However, it is admitted that Defendant failed to pay rent when due for the months set forth in Defendant's Petition. 53. Denied. Plaintiffs deny any alleged verbatim transcript of a conversation. 54. Denied. To the extent that Defendant believed it is entitled to occupy a commercial property rent free, in violation of a written lease, and with no memorialization of said rent free arrangement, Plaintiffs assert Defendant's contention is not commercially reasonable and should be rejected out of hand. 55. Denied as stated. While it is certainly true that Plaintiffs at all times sought to cooperate with Defendant, and that other space may have been shown to Defendant, this averment in no way relieved Defendant from paying rent for the period in which it occupied the premises. 56. Admitted upon information and belief. 57. Admitted an email was sent, denied as to the Defendant's representations as to the content of that email. 58. Denied. 6 59. Admitted that at some point Defendant advised Plaintiffs verbally that Defendant planned to vacate the premises. It is denied that such notice conformed to the terms of the lease. The remaining averments of this paragraph are denied. 60. Denied as stated. It is not known by Plaintiffs precisely when Defendant vacated the Premises. However, the keys to the Premises were not received until mid- December 2008. 61. Admitted. 62. Denied. The averments of this paragraph are denied. Strict proof thereof is demanded. 63. Denied. The averments of this paragraph are denied. Strict proof thereof is demanded. 64. Admitted. THERE IS NO BASIS TO STRIKE THE CONFESSED JUDGMENT 65. Admitted. 66. Admitted. By way of further response, no fatal defects appear on the face of the record in this matter. 67. Admitted. By way of further response, no grossly excessive amounts, or items that are not properly recoverable were included in the Confession of Judgment. The case law Defendant cites is not on point. Critically, even if "the judgment as entered is for items within the judgment note, but excessive in amount, the court will modify the judgment." See Colony Federal Say. & Loan Assoc. v. Beaver Valley, 361 A.2d 343 (Pa. Super. 1975). In the present case, Defendant contends that the inclusion of approximately $1,800.00 in Utility Charges is unauthorized, and that perhaps one or more months rent was wrongly included in the Confession of Judgment. It is respectfully 7 submitted that, even if Defendant is correct, such amounts are not grossly excessive and thus the judgment should be modified by the Court as it deems appropriate. 68. Denied. Article 40 does not control the procedure for determining the parties' dispute. Article 25, Section (b) provides the language which controls: "in addition to any other rights or remedies that Landlord may have under this Lease or at law or in equity, Tenant covenants and agrees that Landlord shall have the following rights ...." Including the right to confess judgment. Defendant raises this claim only to distract and delay. The lease clearly provides that landlord has the right to select its choice of remedies. 69. Denied. Plaintiffs incorporate their response to paragraph 68. 70. Denied. The averments of this paragraph are denied as a conclusion of law to which no response is required. By way of further response, Defendant, as an experienced commercial tenant that negotiated at arms length, should be deemed to understand the terms of the contracts that they enter. Strict proof of Defendant's assertion is demanded. 71. Denied. The averments of this paragraph are denied as a conclusion of law to which no response is required. 72. Denied. The Confession of Judgment clause contained in the Lease conforms in all respects to Pennsylvania law. Further, it is clear that Defendant reviewed the lease closely prior to entering into it as Mr. Bosley struck out certain provisions of the lease, and initialed those deletions. See Exhibit "B" to lease; See Article 9 of Lease indicating Mr. Bosley's revisions; See also the August 31, 2004 Estoppel Letter, attached to the Lease which was executed by Mr. Bosley on behalf of Defendant that confirms in Paragraph 2 that the lease is in "full force and effect" and in paragraph 3 that Defendant has no "defense, offset, claim, or counterclaim ... against the obligation of [Defendant] 8 under the Lease." Defendant is estopped from now claiming the Confession of Judgment clause is somehow unenforceable when it caused Plaintiffs to rely on the enforceability of the lease via the Estoppel Letter. 73. Denied as a conclusion of law to which no response is required. By way of further response, the Confession of Judgment clause at issue was not inconspicuous and was ratified several times over by Defendant. Indeed, as stated by the Superior Court in Provco Leasing Corp. v. Safm, 402 A.2d 510 (Pa. Super. 1979) (a case cited by Defendant): "the lease was commercial in nature and ... [p]resumptively, appellant had gained a cautious business acumen ... which would alert him to the Confession of Judgment Clause." Id. At 513. THERE IS NO BASIS TO OPEN THE CONFESSED JUDGMENT 74. Admitted. By way of further response, there is no basis to open the confessed judgment in this matter. 75. Admitted. By way of further response, there is no basis to open the confessed judgment in this matter. Defendant has no meritorious defense and has presented no evidence of any meritorious defense. 76. Denied as a conclusion of law to which no response is required. 77. Denied. Defendant ignores Article 25 of the lease which controls the resolution of disputes. 78. Denied. Indeed, the case cited by Defendant makes no reference to a confession of judgment provision in the lease. See Duquesne Light Co. v. Pittsburgh Railway, 162 A.2d 350 (Pa. 1960). 79. Denied. It is denied that any excessive amount or an amount not due was included in the Confession of Judgment. 9 80. Denied. The amounts owed by Defendant through December 2008 are shown on Exhibit "A" attached hereto and total $13,307.07 through December 2, 2008. Attached as Exhibit "B" is a Supplemental Statement through the date of Plaintiffs' filing. The sums sought are: a. Unpaid rent in the amount of $1,666.67 per month for the months of July 2008 through the date of filing in February 2009; b. Unpaid utility charges for 2005 and 2007; C. Late fees for each month as per the terms of the lease; d. Reasonable attorney's fees. 81. Denied. The averments of this paragraph are denied as a conclusion of law. 82. Denied. There is no basis for a finding that Plaintiff allowed Defendant to remain rent free on the premises for many months as alleged by Defendant. Such a claim is mere speculation and is not supportable. 83. Denied. Defendant is estopped per the terms of, inter alia, the Estoppel Letter, from claiming that rent was not due for months when Defendant occupied the premises. 84. Denied. Defendant gave no such adequate notice of termination in June or at any other time as required by the terms of the Lease. Defendant was required to give written notice of its termination which it failed to do. The only notice provided was Defendant's mailing of the keys to Plaintiffs in mid-December 2008. That act was deemed by Plaintiffs to constitute the provision of 90 days notice pursuant to the terms of the Lease. 85. Denied as a conclusion of law to which no response is required. Even if Defendant's statements are deemed correct as to the timing of the returned keys, rent for 10 December, January, and February would be due as those months fall within the 90 days of the return of the keys. 86. Denied. The lease speaks for itself. By way of further response, Defendant was obligated to pay utility charges - and that is all that Plaintiffs have ever charged Defendant. By way of further response, Defendant admitted such charges were due when it paid the 2006 charges without protest. 87. Denied. All sums due were for amounts properly allocable to the premises. 88. Admitted. WHEREFORE, Plaintiffs, P.R. Real Estate, LLC & Home Elite Ltd., hereby respectfully request that Defendant's Petition be denied and that the confessed judgment in the amount of $19,496.11 remain of record, together with such other and further relief as the Court may deem proper. DEEB, PETRA S, BLUM & MURPHY, P.C. By: Fr k G. Murph , Esquire Christine C. McGuigan, Esquire 1601 Market Street, Suite 2600 Philadelphia, PA 19103 (215) 563-0500 Attorneys for Plaintiffs, Dated: April 14, 2009 P.R. Real Estate, LLC & Home Elite Ltd. 11 VERIFICATION I, Frank G. Murphy, Esquire, attorney for Plaintiff, PR Real Estate, LLC & Home Elite, Ltd, in this action, and hereby state and verify that I have been unable to obtain the verification of a principal of Plaintiff within the time permitted but can verify that the statements made in the Response to Petition for Relief from Confessed Judgment is true and correct to the best of my knowledge, information and belief. I understand that the statements therein are made subject to the penalties of 18 Pa. C.S. § 4904 relating to unsworn falsification to authorities. By: _ AU Frank G. Murphy, quire Dated: April 14, 2009 DEEB, PETRAKIB, BLUM & MURPHY, P.C. BY: Frank G. Murphy, Esquire Christine C. McGuigan, Esquire Identification Nos. 65886; 86784 1601 Market Street, Suite 2600 Philadelphia, PA 19103 (215) 563-0500 PR REAL ESTATE, LLC & HOME ELITE, LTD. 491 Old York Road, Suite 200 Jenkintown, Pennsylvania 19046 V. Plaintiffs, WORLD PREMIERE HOME ENTERTAINMENT, LLC 5140 East Trindle Road Mechanicsburg, Pennsylvania 17055 Defendant. Attorneys for Plaintiffs, P.R. Real Estate, LLC 8s Home Elite Ltd. COURT OF COMMON PLEAS CUMBERLAND COUNTY CIVIL ACTION - LAW Docket No. 09-911 CERTIFICATE OF SERVICE I hereby certify that on April 14, 2009, I caused a true and correct copy of Plaintiffs' Response to Petition for Relief from Confessed Judgment was served upon the following via first class mail, postage prepaid, upon the following: John Pietrzak, Esquire Reager & Adler, PC 2331 Market Street Camp Hill, PA 17011-4642 Counsel for Defendant DEEB, PETRA , BLUM & MURPHY, P.C. By: Fr k G. Murphy, squire Christine C. McGuigan, Esquire 1601 Market Street, Suite 2600 Philadelphia, PA 19103 (215) 563-0500 Attorneys for Plaintiffs, P.R. Real Estate, LLC & Home Elite Ltd. EXHIBIT "A Pintzuk Brown Realty Group 491 Old York Road Suite 200 Jenkintown, PA 1.9046 Genius Home Theatre 5205 SIMPSON FERRY RD SURE 517 MECHANICSBURG, PA 17050 Statement Account: coast -17 - bampow Date: 12/02/08 Payment: $ Balance Forward 03/01/06 RENT (03/2006) j 03113/06 Chk# 9002 04/01/06 RENT (04/2006) 04111/06. Chk# 9075 05/01/06 Chk# 9158 05/01/06 RENT (05/2006) 06/01/06 RENT (06/2006) 06/08/06 Chk# 9223 07101/06 RENT (07/2006) 07/17/06 Chk# 9307 08/01/06 RENT (OW006) 08/04/06 Chid 8877 09/01/06 RENT (09/2006) 09/06/06 Chk# 8935 i 09/19/06 2005 Operating Expense Reconciliation 10/01/06 RENT (10/2006) 10/02/06 Chk# 9021 11/01/06 RENT (11/2006) 11/06/06 November Late Fees, 5% of $1666.67 f 12/01/06 RENT (12/2006) 12/06/06 December Late Fees, 5% of $3333.34 12113106 Chk# 3500.00 01/01/07 RENT (01/2007) 01/06/07 Chk# 9211 02/01/07 Chk# 9305 j 02/01/07 RENT (02/2007) 03/01/07 Chk# 1011 03/01/07 RENT (03/2007) 04/01/07 RENT (04/2007) 04/02/07 Chk# 9442 05/01/07 RENT (05/2007) 0.5/03/07 Chk# 9507 06/01107 Chk# 9579 0.00 1,666.67 1,666.67 1,666.67 0.00 1,666.67 1,666.67 1,666.67 0.00 1,666.67 (1,666.67) 1,666.67 0.00 1,666.67 1,666.67 1,666.67 0.00 1,666.67 1,666.67 1,666.67 0.00 1,666.67 1,666.67 1,666.67 0.00 1,666.67 1,666.67 1,666.67 0.00 980.53 980.53 1,666.67 2,647.20 1,666.67 980.53 1,666.67 2,647.20 83.33 2,730.53 1,666.67 4,397.20 166.67 4,563.87 3,500.00 1,063.87 1,666.67 2,730.54 1,667.67 1,062.87 1,666.67 (603.80) 1,666.67 1,062.87 1,667.67 (604.80) 1,666.67 1,061.87 1,666.67 2,728.54 1,66.7.67 1,060,87 1,666.67 2,727.54 1,667.67 1,059.87 1,667.67 (607.80) Pap .1 of 3 Pintzuk Brown Realty Group Statement 491 Old York Road Account ceast -17 - bampow Suite 200 Jenkintown, PA 19046 Date: 12/02/08 Genius Home Theatre Payment: $ 5205 SIMPSON FERRY RD SUITE # 17 MECHANICSBURG, PA 17050 06101/07 RENT (0612007) 1,666.67 1,058.87 07/01/07 RENT (07/2007) 1,666.67 2,725.54 07/05/07 Chk# 9632 1,667.67 1,057.87 07/20/07 2006 CAM Reconciliation Charge 1,505.45 2,563.32 08/01107 Chk#9709 1,505.45. 1,057.87 08/01/07 Chk# 9708 1,667.67 (609..80) 08101/07 RENT (0812007) 1,666.67 1,056.87 09/01/07 RENT (09/2007) 1,666.67 .2,723.54 ` 09/11/07 Chk# 9765 1,666.67 1,056.87 09/11/07 RENT 1.00 1,057.87 10/01/07 RENT (10/2007) 1,666.67 2;724.54 10/08/07 Chk# 9848 1,667.67 1,056.87 I 11/01/07 RENT (11/2007) 1,666.67 2,723.54 11/02/07 Chid 9924 1,667.67 1,055.87 12/01/07 RENT (12/2007) 1,666.67 2,722.54 { 12/10/07 Chk# 9981 1,667.67 1,054.87 01/01/08 RENT (01/2008) 1,666.67 2,721.54 01/11108 Chk# 10063 1,666.67 1,054.87 j 02/01/08 RENT (02/2008) 1,666.67 2,721.54 02/06108 Feb Late Fees, 5% of $1666.67 83.33 2,804.87 02/29/08 Chk# 10156 1,667.67 1,137..20 03/01/08 RENT (03/2008) 1,666.67 2,803.87 03/06/08 Mar Late Fees, 5% of $1666.67 83.33 2,887.20 04/01/08 RENT (04/2008) 1,666.67 4,553.87 04/08/08 Chk# 10219 3,417.67 1,136.20 ? U5/01/08 RENT (05/2008) 1,666.67 I I 2,802.87 f 05/06/08 May Late Fees, 5% of $1666.67 83.33 2,886.20 05/23/08 Chk# 10286 1,667.67 1,218.53 06/01/08 RENT (06/2008) 1,666.67 2,885.20 06/06/08 June Late Fees, 5% of $1666.67 83.33 2,968.53 06/25/08 Chk# 10335 1,751.00 1,217.53 07/01/08 RENT (07/2008) 1,666.67 2,884.20 07/15/08 2007 CAM Reconciliation Charge 922.85 3,807.05 08/01/08 RENT (08/2008) 1,666.67 5,473.72 ; Page 2 of 3 t Pintzuk Brown Realty Group statement 491 Old York Road Account: coast -17 - bampow Suite 200 Jenkintown, PA 19046 Date: 12/02/08 Payment: It Genius Home Theatre 5205 SI MPSON FERRY RD SUITE 617 MECHANICSBURG, PA 17050 08/06/08 August Late Foes, 50/6 of $3333.34 09/01/08 RENT (09/2008) 09/06/08 September Late Fees, 5% of $5000.01 10/01/08 RENT (10/2008) 10/06/08 October Late Fees, 5% of $6666.68 11/01/08 RENT (11/2008) 11/06/08 November Late Fees, 5% of $8333.35 12/01/08 RENT (12/2008) 166.67 5,640.39 1,666.67 7,307.06 250.00 7,557.06 1,666.67 9,223.73 333.33 9,557.06 __ 1,666.67 --11,223.73 416.67 11,640.40 1,666.67 13,307.07 Current 30 Days 2,083.34 2,000.00 60 Days 1,916.67 Page 3 of 3 80 Days Amount Due 7,307.06 13,307.07 30% Pcw EXHIBIT "B" CALCULATION OF DAMAGES Balance Due and Owing through December 2, 2008: December Late Fee (5% of $10,000.00): January Rent: January Late Fee (5% of $11,606.69): February Rent: Combined Rent, Late Fees, and Utility Charges Attorneys Fee (10% of $17,723.74): $13,307.07 $ 500.01 $ 1,666.67 $ 583.33 $ 1,666.67 $17,723.74 TOTAL: $19,496.11 FLED-0, -"_"E O HE i 1 0-,,lO APY 2025 APR 15 Pl 12: 23 REAGER & ADLER, P.C. BY:JO H. PIETRZAK, ESQUIRE Attorney I. D. No. 79538 Email: J i trzak Re erAdlerPC.com BY: THO S O. WILLIAMS, ESQUIRE Attorney I.:). No. 67987 Email: T Iliams(@ReajzerAdlerPC.com 2331 Market Street Camp Hill, PA 17011 Telephone: (717) 763-1383 Facsimile: 717) 730-7366 A u...._.__._ __ w___u PR REAL STATE, LLC IN THE COURT OF COMMON PLEAS, HOME ELITE, LTD., CUMBERLAND COUNTY, PENNSYLVANIA Plaintiffs, : V. CIVIL ACTION -LAW WORLD PREMIERE HOME NO. 09-0911 ENTERT MENT, LLC, Defendant : CONFESSION OF JUDGMENT AN NOW, comes the Defendant, World Premiere Home Entertainment, LLC, by and through its ttorneys, Reager & Adler, P.C., and files the following Motion for Continuance of Hearing Scheduled for July 10, 2009. This motion is filed in compliance with Cumberland Co. Local Rule 208.2(d) and 208.3 (a). In support of this motion, Defendant avers as follows: 1. Plaintiffs filed a Confession of Judgment in the amount of $19,496.11 against the Defendant c 2. 2009. n February 13, 2009. Defendant filed a Petition for Relief from Confession of Judgment on March 20, 3. On March 26, 2009, the Honorable Edward E. Guido issued an Rule to Show Cause why Defendant should not be granted the relief requested. The Rule to Show Cause scheduled argument date of July 10, 2009. .1 . , Ir _ _ M 4. I Kenneth C. Bosley is the President of the Defendant, World Premiere Home i ent, LLC and its successor-in-interest, World Premiere Home Entertainment, Inc. 5. Mr. Bosley has a previously scheduled family vacation planned for the week of July 4-11, 009. This vacation was scheduled and paid for prior to receipt of the Rule to Show Cause sch duling the hearing for this matter for July 10, 2009. The amounts paid for this vacation non-refundable. 6. Mr. Bosley was the individual primarily involved on behalf of the Defendant in the matters at issue in this case and his appearance and testimony at the hearing scheduled for this case is vital. 7. For the reasons set forth above, Defendant respectfully requests that this Honorable Court reschedule the hearing in this matter to a date on or after July 14, 2009. 8. Counsel for Defendant has contacted Frank G. Murphy, Esq., counsel for the Plaintiffs, seeking Plaintiffs' concurrence in this motion. Attorney Murphy has authorized the to indicate his concurrence in this motion. 9. Attorney Murphy further indicated a request that the Court not schedule the hearing for a Monday or Friday if possible. Defendant, World Premiere Home Entertainment, LLC, respectfully requests July 10, Date: this Honorable Court reschedule the hearing in this matter currently scheduled for Respectfully submitted, REAGER & ADLER, P.C. 22, 2009 Jo H. Piet , Esqu' Attorney for Defendant FILHU T 2009 NAY 27 r;1-- I ? : ; IT PR REAL TATS, LLC & 11, HOME EL , LTD., Respondents/Plaintiffs, V. WORLD ENTERT v41ERE HOME 4ENT, LLC, Petitioner/Defendant MAY ? 6 20090 : IN THE COURT OF COMMON PLEAS, CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION -LAW NO. 09-0911 CONFESSION OF JUDGMENT ORDER k q NOW, this I d y of , 2009, upon consideration of the foregoing, Defendant, World Premiere Home Entertainment, LLC's Request for Continuance of the Hearin scheduled for July 10, 2009 is GRANTED. 194 It i hereby ORDERED that the argument/hearing in this matter is rescheduled to the a` day of tww?W , 2009, at 7:30 o'clock in Courtroom No.. of the County Courthouse. date for completion of depositions, contained in the previous Rule to Show Cause issued on arch 26, 2009, shall remain unchanged. ? Counsel for Plaintiffs: Frank G. M hy, Esquire Christine M cGuigan, Esquire Deeb, Petral 1601 Mark is, Blum Street, 26'" Floor Philadelnhi . PA 19103 _,-15ounsel for Defendant: John H. Pietrzak, Esq. Reager & Adler, P.C. 2331 Market Street Camp Hill, A 17011 12or I las Inc-u ,5 j oZQ By the C Edward E. Guido, Judge ?? Ql b 63 O 60OZ 3?L do,