HomeMy WebLinkAbout10-0726
SIRLIN GALLOGLY & LESSER, P.C.
1529 Walnut Street, Suite 600
Philadelphia, PA 19102
(215) 8649700
By: Peter A. Lesser, Esquire
Identification No. 59433
Tl?
Attorneys for Plaintiff
CEDAR-PARKWAY PLAZA, LP By Its COURT OF COMMON PLEAS
Agent: Cedar Shopping Centers Partnership : CUMBERLAND COUNTY
44 South Bayles Avenue
Port Washington, NY 11050-3765
V.
MOVIE MERCHANTS OF NO. 10 - W-P F"
MECHANICSBURG INC. t/a :
BLOCKBUSTER
Parkway Plaza Shopping Center :
295 Cumberland Parkway
Mechanicsburg, PA 17055
YOU HAVE BEEN SUED IN COURT. IF YOU WISH TO DEFEND
AGAINST THE CLAIM M-pORTIT IN THE FOLLOWING PAGES, YOU MUST
TAKE ACTION WITHIN TWENTY (20) DAYS AFTER THIS COMPLAINT AND
NOTICE
SERVTp?W TEN
PERSONALLY OR BY EO , WRITING WITH THEE
COURT YOUR DEFENSES OR OBJECTIONS TO THE CLAIMS SET FORTH
AGAINST YOU. YOU ARE WARNED THAT IF YOU FAIL TO DO SO THE CASE
MAY PROCEED WITHOUT YOU AND A JUDGMENT MAY BE ENTERED
AGAINST YOU BY THE COURT WITHOUT FURTHER NOTICE FOR ANY
MONEY CLAIMED IN THE COMPLAINT OR FOR ANY OTHER CLAIM OR
RELIEF REQUESTED BY THE PLAINTIFF. YOU MAY LOSE MONEY OR
PROPERTY OR OTHER RIGHTS IMPORTANT TO YOU.
YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF
YOU DO NOT HAVE A LAWYER OR CANNOT AFFORD ONE, GO TO THE
TELEPHONE OR THE OFFICE SET FORTH BELOW TO FIND OUT WHERE YOU
CAN GET LEGAL HELP.
CUMBERLAND COUNTY BAR ASSOCIATION
32 SOUTH BEDFORD STREET
CARLISLE, PA 17013
1-800-990-9108
717-249-3166 O
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C?'a 3830
13(04'1 S
SIRLIN GALLOGLY & LESSER, P.C.
1529 Walnut Street, Suite 600
Philadelphia, PA 19102
(215) 864-9700
By: Peter A. Lesser, Esquire
Identification No. 59433
CEDAR-PARKWAY PLAZA, LP By Its .
Agent: Cedar Shopping Centers Partnership :
44 South Bayles Avenue
Port Washington, NY 11050-3765
V.
MOVIE MERCHANTS OF
MECHANICSBURG INC. t/a
BLOCKBUSTER
Parkway Plaza Shopping Center
295 Cumberland Parkway
Mechanicsburg, PA 17055
Attorneys for Plaintiff
COURT OF COMMON PLEAS
CUMBERLAND COUNTY
NO. C fv , I _4e <1
COMPLAINT - CIVIL ACTION
BREACH OF CONTRACT - DAMAGES
Plaintiff, through its attorneys, Sirlin Gallogly & Lesser, P.C., sets forth the
following cause of action:
1. Plaintiff is CEDAR-PARKWAY PLAZA, LP, a Delaware limited partnership.
Its managing agent is Cedar Shopping Centers Partnership located at 44 South Bayles
Avenue, Port Washington, NY 11050. Plaintiff is the owner of commercial property known
as the Parkway Plaza Shopping Center, 295 Cumberland Parkway, Mechanicsburg, PA
17055 having acquired it from the prior owner, Caldwell Development Inc.
2. Defendant is MOVIE MERCHANTS OF MECHANICSBURG, INC. t/a
BLOCKBUSTER, a Pennsylvania corporation and regularly conducts business at the
Parkway Plaza Shopping Center, 295 Cumberland Parkway, Mechanicsburg, PA 17055.
3. On or about March 26, 1998 the Caldwell Development Inc. and Defendant
entered into a Lease Agreement for the rental of approximately 6,000 square feet of
commercial space located at the Parkway Plaza Shopping Center, 295 Cumberland Parkway,
Mechanicsburg, PA 17055 for a term of five (5) years which commenced on or about
February 1, 1999 and was said to expire on January 31, 2004. A true and correct copy of
Lease Agreement is attached hereto, marked as Exhibit "A" and made a part hereof.
4. On or about September 18, 2003, Defendant exercised its option to extend the
term of the Lease for an additional five (5) year period which was said to expire on January
31, 2009. A true and correct copy of the September 18, 2003 letter is attached hereto as
Exhibit "B" and made a part hereof.
5. On or about November 1, 2008, Plaintiff and Defendant entered into a Lease
Modification Agreement wherein Plaintiff agreed to defer the Defendant's Minimum Rent for
the months of November and December 2008. The term of the Lease was also extended for
an additional three (3) year period commencing February 1, 2009 and will expire on January
31, 2012. A true and correct copy of the Lease Modification Agreement is attached hereto as
Exhibit "C" and made a part hereof.
6. Pursuant to the Lease, Defendant is responsible for the payment of monthly rent
in the amount of $7,766.00 plus common area maintenance charges, sewer charges and HVAC
charges.
7. Defendant is in default of the terms of the Lease.
(a) Defendant has failed to pay rent and proper charges as of January 20,
2010 in the amount of $44,253.95, as set forth on the Tenant Ledger attached as Exhibit "D"
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WHEREFORE, Plaintiff demands judgment in its favor and against Defendant in the total
amount of $243,117.95 plus attorneys' fees and costs as set forth in Counts I and H of Plaintiff's
Complaint.
SIRLIN GALLOGLY & LESSER, P.C.
BY:
PETER A. LESSER, ESQUIRE
Attorney for Plaintiff
VERIFICATION
BRENDA J. WALKER, being duly sworn according to law, deposes and says that
she is the representative of Plaintiff, CEDAR-PARKWAY PLAZA LP, in this action, and hereby
verifies that the statements set forth in the foregoing Civil Action - Complaint are true and correct
to the best of her knowledge, information, and belief. I understand that the statements in the
foregoing Complaint - Civil Action are made subject to the penalties of 18 Pa. CSA Section 4904
relating to unsworn falsification to authorities.
A---,
BREN ALKER
DATED: 12? ( ?
EXHIBIT "A"
LEASE AGREEMENT
THIS LEASE AGREEMENT is made and entered into this CPG n da of
y kmda-Fy, 1998
by and between CALDWELL DEVELOPMENT, INC., a corporation organized and existing under
the laws of the Commonwealth of Pennsylvania, at 434 North Front Street, Wormleysburg,
Pennsylvania, hereinafter referred to as "Lessor", and MOVIE MERCHANTS OF
MECHANICSBURG, INC., a Pennsylvania corporation doing business at 48 Central Boulevard,
Camp Hill, Pennsylvania, hereinafter referred to as "Lessee."
WITNESSETH:
In consideration of the mutual promises hereinafter set forth, the parties do hereby agree
to the following:
1. TERM.
(A) The term of this Lease shall be for a period of five (5) years beginning on the
Commencement Date which shall be sixty (60) days after Lessor notifies Lessee in writing of the
completion of and availability of the leasehold premises, as defined hereinafter- The Commencement
Date, however, shall not occur until Giant Food Stores, Inc., an adjacent Lessee, has opened for
business or Lessee has actually opened for business, whichever shall first occur. The date established
hereinafter in the Commencement Memorandum shall be the "Commencement Date." The Lease
shall automatically terminate and end without further notice five (5) years after the Commencement
Date unless renewed prior to termination or is otherwise terminated as herein provided. The parties
shall execute a Commencement Memorandum, the form of which is contained in Exhibit "C" hereto
to memorialize the actual and specific Commencement Date.
(B) Provided Lessee is not in default under any provision of this Lease, at the end of
twenty-four (24) months after the Commencement Date, Lessee, may terminate this Lease (the "Early
Termination Date"). The right of termination may be exercised only at the end of such twenty-four
(24) months from the Commencement Date and only as set forth in this subparagraph. Furthermore,
Lessee shall additionally only have this right to termination if Lessee's gross sales are less than Three
Hundred Thousand and 00/100 ($300,000.00) Dollars for the twelve (12) month period preceding
the Early Termination Date. Lessee shall exercise this right of termination by notifying Lessor, in
writing, of its intention to terminate the Lease no later than fifteen (15) days after the end of the
twenty-four (24) month period from the Commencement Date providing with said notice such
documentation to satisfy the preceding gross sales condition. Lessee shall then be obligated to
continue its months rental obligations and other monetary obligations for an additional six (6) months
whether or not Lessee continues to operate in the Premises. If Lessee ceases operations in the
Premises during the six (6) month period, Lessee shall promptly notify Lessor who shall have the right
to possession and further right to relet the Premises without any further duty or obligation to Lessee
whatsoever.
2. P RM1 . The Lessor does hereby lease unto the Lessee 6000 square feet (60' x
100) of commercial space located at Parkway Plaza, Upper Allen Township, Cumberland County,
Pennsylvania; described on Exhibit "A" attached hereto and made a part hereof (the "Premises").
The Premises shall be improved as provided on the plans and specifications attached hereto and
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marked Exhibit "B" and made apart hereof by reference thereto.
3. MINIMUM RENT. The Lessee shall pay to the Lessor as a minimum rent for the
Premises the annual sum of $72,000.00 payable in advance in equal monthly installments of
$6,000.00. The first rental payment shall be due on the Commencement Date, as defined in Section
Any rent not received within five (5)business days from the due date shall be subject to five
(5%) percent late charge payable on or before the payment due date for the following month. The
rental payment shall be due without demand, shall not be subject to abatement, reduction or set off.
4. PAYMENT OF UTILITY COSTS A REAL, ESTATE TAXES.
(a) Payment of Utility Costs: Lessee shall pay all charges for utility services rendered or
furnished to the Premises including heat, water, electricity, sewer rental, sewer treatment facilities and
the like, together with all taxes levied or other charges made on such utilities and governmental
charges based on utility consumption, standby utility capadity or potential utility use. Lessee shall
pay all such utility charges in a timely manner within ten (10) of the submission of the invoice from
Lessor or directly from the utility as the case may be. Lessee shall hold Lessor harmless and
indemnify Lessor for any liability for utilities that are utilized by Lessee. As of the date of delivery
of the Premises, all utility services to the Premises shall be separately metered. Lessor agrees to pay
all initial impact, hook-up and inspection fees for utilities serving the leased Premises.
(b) Payment of Real Estate Taxes: As additional rental, Lessee agrees to pay Lessor its pro-
rata share of all real estate taxes levied or assessed upon the leased Premises. Such payment shall be
made by Lessee no later than fifteen (15) days from Lessor providing the tax invoice to Lessee. Real
estate taxes shall include all forms ofgeneral or special real estate assessment levy or tax imposed by
any authority having the direct or indirect power to tax including township, county, state or federal
government, or their agencies or improvement districts, against any legal or equitable interest of the
Lessor in the leased Premises or any tax charge or fee imposed in substitution, partially or totally, or
any real property tax, or any additional tax, the nature of which was previously included within the
definition of real estate tax. Failure to pay said tax within the time stated shall constitute in an event
of default. Lessor shall provide Lessee with any such real estate tax invoices including but not
limited to appropriate copies of bills and calculations verifying Lessee's proportionate obligation for
such taxes which shall be based upon the Premises square footage as a percentage of the total,
rentable space in Lessor's commercial retail complex . Lessee's proportionate obligations shall
include a proportionate share of the parking area and common areas.
5. COMMON AREA MAINTENANCE. The Lessee will keep the leased Premises neat,
clean and keep same in sanitary condition at all times. Lessee shall provide its own janitorial services
at its own expense which service shall provide for the removal of refuse from the leased Premises.
Lessor shall provide common area maintenance, including but not limited to common area lighting,
snow removal, lawn care, exterior painting, parking lot maintenance and repair, fire line and fire
service charges, landscaped areas if any, sanitary sewer lines, storm sewer lines and facilities, and
utility lines. Lessee, as additional rent, shall pay Lessor its proportionate share of all common
maintenance expenses.
Lessor shall provide Lessee in a timely manner before commencement of this Lease
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appropriate documentation as to the exact and specific percentage of Lessee's proportionate share
of the common areas of the Parkway Plaza which shall be defined as "Lessee's Share".
6. INITIAL ROPROVEWNTS A POSSESSION. Lessor hereby agrees to improve
the leased Premises to the specifications of the Lessee as set forth on Exhibit "B" attached hereto and
made a part hereof. Thereafter, Lessor shall notify Lessee of substantial completion of said
improvements by Lessor, whereupon Lessee shall promptly take possession of the Premises. It is
understood that Lessor anticipates completing said improvements to the leased Premises on or before
December, 1998. However, if Lessor is unable to fulfill said completion before said date or within
one hundred eighty (180) days thereafter, Lessee's sole remedy is to terminate its lease obligations
hereunder, whereupon the parties shall have no further duty or obligation to each other hereunder,
upon a return of Lessee's security deposit.
7. ALTERATIONS. Lessee agrees not to make any alterations, additions, improvements
or other changes to any part of the Premises or its facilities (except additions or supplementations to
Lessee's original fixtures and equipment) without the express written consent of the Lessor, which
consent will not be unreasonably withheld. Such leasehold improvements when made and to the
extent they do not include trade fixtures shall become the property of the Lessor upon termination
or conclusion of the Lease_ Lighting fixtures, heating and air conditioning equipment, plumbing and
electrical systems and fixtures, and floor coverings shall not be deemed to be trade fixtures whether
installed by Lessee or by anyone else and shall not be removed from the Premises by the Lessee at
the termination of this Lease. Lessee shall be responsible to repair any damage to the Premises
caused by its removal of trade fixtures upon termination of the Lease. Unless otherwise agreed, all
alterations shall be at the sole cost and expense of Lessee, and Lessee shalt hold harmless and
indemnify Lessor from any responsibility for payment of same.
8. REPAIRS. Lessor agrees to be responsible for the following, subject to
reimbursement by Lessee as specifically hereinafter provided:
A. all repairs, maintenance and replacements to the building structure including
the roof, walls and foundation.
B. specified preventive maintenance in accordance with manufactures
recommendations for mechanical systems of the leased Premises which shall include two complete
inspections each year and two additional service visits for filter changes, visual overviews, etc., for
a total of four (4) service inspections per year. The cost of the scheduled maintenance shall be the
responsibility of Lessee and Lessee shall receive a copy of all work performed. Furthermore, Lessee
shall be responsible for the first One Thousand Dollars ($1,000) per year of the cost of all repairs and
replacements to any of the mechanical systems of the leased Premises, which One Thousand Dollars
($1,000) shall include the costs for the preventive maintenance inspections and service. This amount
shall be non cumulative. Lessor shall be responsible for any costs of repairs or replacements of the
mechanical system in excess of said sum per year provided same are not necessary due to the actions
or inactions of the Lessee or employees, agents or invitees, in which such costs of such repairs shall
be performed at the expense of Lessee.
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C. all maintenance, repairs and replacements due to the negligent acts of the
Lessor or its agents.
D. Lessor shall be responsible for all costs for inspection maintenance repairs to
the fire protection system subject to the common area maintenance reimbursement as herein provided.
E. Lessee shall have the benefit of any and all guarantees provided by Lessor's
contractors for the initial construction and improvements to the Premises.
All other interior building or property repairs shall be the responsibility of the Lessee,
including the replacement of broken plate glass and windows, bulbs and lamps, plumbing fixtures
including leaks, doors, hardware and such consumer accessories except to the extent as covered by
any insurance carried by Lessor.
This paragraph shall not be applicable to reasonable repairs to common areas for
which Lessee shall be responsible on a pro rata basis (based upon rentable space) under the common
area maintenance provisions as herembefore set forth in this Lease.
9. INSURANCE-
A. Lessor shall maintain during the Term of the following polices of insurance:
(i) Commercial General Liability Insurance,
Including, but no limited to coverage for Premises/operations, personal injury and
contractual liabilities with combined single limits of not less than $2,000,000 per occurrence for
bodily injury and/or property damage.
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(ii) "All Risk" Proper Insurance.
Upon all buildings, building improvements, alterations and supplies on the Demised
Premises and land on which the Demised Premises are located, with coverage for the perils of fire,
extended coverage, vandalism, malicious mischief sprinkler leakage, water damage, accidental
collapse, flood and earthquake, with limits of not less than ninety (90%) of full replacement cost, with
an increased cost of construction endorsement.
B. Lessee shall maintain, at Lessee's expense, during the Term, the following
insurance policies:
(i) Workers' Compensation Insurance.
Covering all costs, benefits and liabilities under State Workers' Compensation and
similar laws in the State of Pennsylvania for Lessee's employees, and Employer's Liability Insurance,
with limits of not less than $500,000 per accident or disease.
(ii) Commercial General Liability Insurance.
Including, but not limited to, coverage for Premises/operations, products/completed
operations, personal/advertising injury and contractual liabilities with combined single limits of not
less than $1,000,000 per occurrence for bodily injury and/or property damage.
(iii) Personal Proper y Insurance.
Including replacement cost fire and extended coverage insurance, with vandalism and
malicious mischief, sprinkler leakage and earthquake sprinkler leakage endorsements, in an amount
sufficient to cover not less than 90% of the full replacement cost, as the same may exist from time
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to time, covering all of Lessee's personal property, fixtures, equipment and Tenant's improvements,
if any.
Lessee may meet its insurance obligations under this Lease through a blanket insurance policy,
through any combination of primary or umbrella/excess coverage, or through a program of self-
insurance.
C. All policies described in subsection (B) shall be issued by companies qualified
to do business in the State of Pennsylvania, and rated A-/VII or better in the most current edition of
Best's Laurance Reports. Each policy will expressly provide that such policy will not be subject to
cancellation or material change without at least thirty (30) days' prior written notice to the other
party. Lessee shall furnish Lessor, concurrently with the execution of this Lease, with certificate(s)
evidencing such insurance coverage required herein by Lessee. Lessor may meet its insurance
obligations herein by means of a blanket insurance policy or through any combination of primary or
umbrella/excess coverage. Lessee shall reimburse Lessor for Lessee's share of the premium paid for
the All Risk Property Insurance carried by Lessor for the Premises and Lessee's share (proportionate
percentage) of the common areas within thirty (30) days of receipt by Lessee of an invoice thereof.
D. Lessee will not perform any act which will knowingly violate the terms and
conditions of insurance carried on the Premises by Lessee or Lessor but if advised a violation is
occurring, Lessee shall promptly cease and desist from such activities. Lessee also waives, by
securing said insurance, any rights to make claim against the Lessor for personal injury or property
damage to it, to include vehicles and property of third parties stored or used in or about the Premises
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except for intentional acts or grossly negligent acts of Lessor. Lessee shall promptly notify its
insurance carrier(s) of said waiver, obtain their consent and provide Lessor confirmation thereof.
The parties agree to indemnify, defend and hold each other harmless from and against any and
all claims, losses, liability, costs or expenses (including reasonable attorney's fees) (hereinafter
collectively referred to as "claims") arising out of the bodily injury (including death) or property
damage but only to the extent that such claims are caused by the negligence, misconduct or other
fault of the other party, its authorized by agents or employees.
10. ASSIGNMENT. Lessee may not assign, sublet or transfer its interest in the Premises
to any other party without the express written consent of the Lessor. Under all such circumstances
that Lessor shall in its sole discretion approve assignment, Lessee shall remain liable under the terms
of the original lease unless Lessor, at its sole discretion, releases Lessee in writing from further
liability.
11. SUBORDINATION. It is agreed that this Lease shall be subject and subordinate to
any mortgages or trust deeds that may hereafter be placed on the Premises, and the leased Premises
and to any and all advances to be made thereunder, and to the interest thereon, and all renewals,
replacements, modifications, consolidations and extensions thereof, provided the mortgagee or trustee
named in said mortgages or trust deeds shall agree to recognize the said Lease of Lessee in the event
of foreclosure if Lessee is not then in default. Lessee agrees to promptly and reasonably cooperate
with Lessor in execution of any and all such documentation pursuant to this paragraph, and a failure
to do such may constitute a default hereunder.
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12. GOUR1V1_ ENTAL F RATIONS. Lessee shall, at its cost, comply with and
observe all requirements applicable to Lessee of all federal, state and local governmental authorities
having jurisdiction over Lessee and applicable to Lessee in the operation of its business on the
Premises during the term of this lease and any renewal thereof.
13. ACCESS BY LESSOR. Lessor and/or its designee may enter the leased Premises
during reasonable times for the purpose of examining or exhibiting the same or to make any necessary
repairs, but the examination or exhibition and the making of any repairs to the leased Premises shall
not unreasonably interfere with Lessee's use of the leased Premises. Lessor may, at reasonable times,
enter upon the Premises to show the same to prospective Lessees thereof within six (6) months prior
to the expiration of the basic term or any extension thereof and to prospective purchasers or lender
at any reasonable time.
14. DAMAGE TO PREMISES. If during the term of this Lease, the building
improvements in or appurtenant to the demised Premises, to include the driveway utilized for ingress
and egress, shall be destroyed or damaged by fire, storm, lightning, earthquake or other casualty, the
rent payable shall abate in such proportion as use of the Premises by Lessee has been destroyed or
damaged to the extent precluding use. Lessor shall restore the Premises to substantially the same
condition as before damage as speedily as practical. If the damage is extensive and over fifty percent
(501/6) of the leased Premises is unusable, then within ninety (90) days of such casualty, Lessor shall
notify Lessee whether it shall restore the Premises to substantially the same condition as before
casualty damages. Such restoration shall occur within two hundred seventy (270) days after the
casualty whereupon full rental shall then commence. If Lessor decides to terminate the Lease, there
shall exist no further duties or obligations by and between the parties hereto. Lessor shall have no
liability or obligation to Lessee for loss of use, lost of property or any and other claim of any type or
nature in the event of such casualty loss unless caused by the intentional acts or gross negligence of
the Lessor.
15. CONDEMNATION. If the whole of the leased Premises, or such portion thereof as
will make the leased Premises unsuitable for the purposes leased, as determined by Lessee in its sole
reasonable judgment, is condemned for any public use or purpose by any legally constituted authority,
then in either of such events this Lease shall terminate on the day when the leased Premises shall be
so taken, and the rent and all additional rents shall be apportioned as of that date. Such termination
shall be without prejudice to the rights of either the Lessor or the Lessee to recover compensation
from the condemning authority for any loss or damage caused by such condemnation. Neither the
Lessor nor the Lessee shall have any rights in or to any award made to the other by the condemning
authority. Lessee assigns to Lessor all rights to damages accruing on account of any taking or
condemnation except that Lessee shall be entitled to recover a sum attributable to the Lessee's
improvements to the Premises, which Lessee has the right to remove but elects not to remove.
16. SURRENDER OF THE P FMI ES. At the expiration of or sooner termination of
this Lease, Lessee shall peaceably surrender the Premises in the same condition as they are required
hereby to be kept by Lessee excepting normal wear and tear. Lessee may remove all of its trade
fixtures from the demised Premises and shall repair any damage to the Premises caused thereby.
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Lessee may not remove any other alterations, additions or improvements other than trade fixtures
which other alterations, additions and improvements shall become the property of Lessor at the
expiration of or termination of this Lease.
17. NOTICE OF DEFAULT. If Lessee has failed or refused to perform or has violated
any of the terms, covenants, conditions or agreements contained in this Lease, except for payment
of rent as addressed in paragraph 18(a) below, Lessor shall so notify Lessee in writing. Thereupon
Lessee shall correct the matters complained of in such notice within twenty (20) days after delivery
of written notice, or if more than such twenty (20) days are required to correct with reasonable
diligence the matters complained of in such notice, shall commence to correct them within such
twenty (20) days and pursue such corrective action with reasonable diligence thereafter.
18. EVENTS OF DEFAULT. Each of the following shall constitute an event of default
by the Lessee:
A. Failure of the Lessee to pay rent or other charges within ten (10) days of the due
date and after ten (10) days written notice of such failure;
B. Failure of Lessee to pay taxes or other legitimate and undisputed charges of any
governmental agency, authority, subdivision or instrumentality when due;
C. Failure of Lessee to observe or perform any of the terms, covenants and conditions
of this Lease after written notice and opportunity to cure;
D. Discontinuance by Lessee of the conduct of its business in the leased Premises
without Lessor's consent; however, Lessee shall not be subject to continued use and operational
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requirements if at any time during the lease term: (i) Lessee, through no fault of its own, is unable
to adequately staff the leased Premises with competent stylists and/or managers, or (ii) twenty-five
(25%) percent or more of the leasable space in the Shopping Center, including space leased by Giant
Food Stores, Inc., or its successors or assigns, is vacant and such condition continues for a period
of sixty (60) days after written notice to Lessor to rectify such condition, in which event Lessee shall
have the option, after giving thirty (30) days' additional written notice to Lessor, of either reducing
its hours of operation or terminating this Lease Agreement. In the event Lessee elects to terminate
its tenancy, this Lease Agreement shall become null and void and neither Lessor nor Lessee shall have
any further rights or obligations hereunder and all rent, additional rent and percentage rent shall be
proportionately adjusted as of the date of termination.
E. Lessee's vacating of or desertion of the leased Premises or permitting the same to
be empty or unoccupied, either in whole or in substantial part, or any attempt to assign this Lease or
sublet the same without consent, or grant a concession agreement thereto or otherwise transfer
Lessee's interest in this Lease except as otherwise permitted by this Lease;
F. Lessee's removal, attempt to remove or manifesting an intention to remove its
goods or property from or out of the leased Premises other than in the ordinary and usual course of
its business without having first paid and satisfied Lessor for all sums which may be due during this
Lease;
G. Failure or omission of Lessee, after notice of default has been given by Lessor
to take corrective action within the required time;
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H. Insolvency of Lessee, or
I. If Lessee shall have filed against it a bill in equity or if proceedings are
otherwise initiated for the appointment of a receiver of its assets or proceedings in any court for the
composition of its creditors or for relief in any manner from the payment of its debts when due under
any state or federal law, which shall not be dismissed within sixty (60) days from the date of the filing
thereof.
19. REMEDIES IN THE EVENT OF LESSEE'S DEFAULT. In the event Lessee defaults
as hereinabove provided, in addition to all other rights and remedies available in law or equity or
granted elsewhere in this Lease, Lessor shall also have the right to do once or more often any one or
more of the following:
A Declare due and payable and sue to recover unpaid rent and all other charges due
and payable by Lessee to Lessor including rent for the unexpired term of this Lease and all costs and
commissions provided or permitted by law;
B. Enter the leased Premises and distrain upon and sell any property therein which
may be lawfully subject to distraint.
C. Lessor shall use reasonable efforts to lease all or any part of the leased Premises
to any other person with or without first altering the same, applying such rental receipts against
Lessee's rent for unexpired term of Lease;
D. In the event of litigation, the prevailing party may recover its reasonable attorney's
fees and costs from the other party; and
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E. Right to confess judgment for possession of the leased Premises by
Commencement of an equitable action in ejectment by confession with costs and reasonable
attorney's fees added.
Lessee does, therefore, appoint the Prothonotary or attorney of any Court record of
Pennsylvania to appear for and confess judgment against said Lessee in favor of Lessor for said
possession using this lease or a copy thereof as authority, and in the event of a writ of confession of
judgment for ejectment causing a writ of possession to be issued, Lessee waiving all further rights,
procedural errors, defects or admissions unless otherwise herein provided. Lessee hereby empowers
the Prothonotary or any attorney of record to appear for it one or more times and to take on its behalf
any or all actions described in this paragraph.
F. In addition, to any other remedy available to Lessor in law and/or equity and as are
herein provided, upon a default Lessor shall have the right to seek injunctive relief in the event Lessor
deems such appropriate and necessary.
20. PRESERVATION OF LESSOR'S ENFORCEMENT RIGHTS. Lessor's acceptance
of rent or any other amount due, or failure to enforce any right under the Lease, shall not waive any
other rights that Lessor may have hereunder. Any attempt to collect rent or other amounts by one
proceeding shall not waive Lessor's right to collect the same by any other proceeding. Lessor
reserves the right to apply any payments for delinquent rent, current rent or other amounts due.
21. LESSOR'S TITLE. Lessor covenants and warrants to Lessee that Lessor has good and
marketable title to the leased Premises, including the Premises, and that Lessor's title is subject only
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CUNNINGHAM & CHERNICOFF, P.C
JORDAN D. CUNNINGHAM ATTORNEYS AT LAW
ROBERT E. CHERNKAFF 2320 NORTH SECOND STREET
PAIGE MACDONALD-MATrHES P.O. BOX 60457
HENRY W. VAN E CK
MARCw W HARRISBURG, PENNSYLVANIA 17106-0457
TELEPHONE
(717)238-6570
April 27, 1999
James R. Clippinger, Esquire
CALDWELL & KEARNS
3631 North Front Street
Harrisburg, PA 17110
HERSHEY TELEPHONE
(117) 534-2833
IRS NO. 23-2274135
FAX
(717) 238-4809
RE: movie merchants, Inc. / Parkway Plaza, Nechanicsburg
Dear Jim:
Enclosed is an initialed page correcting paragraph 24 of the
Lease between the above parties.
Thank you for your assistance.
sincerely yours,
CUNNIIJGHAM & CHERNICOFF, P.C.
Robert Chernicoff
REC/lbd
Enclosure
cc: Patricia Greenberg
24. OPTION TO RENEW: Lessee shall have the option to renew and extending the term
of the Lease for two, five (5) year periods to run consecutively, provided Lessee is not then in default
of any of its obligations hereunder at the conclusion of the original term and of the initial renewal
term, if exercised, and has provided Lessor no less than one hundred and eighty ( 180) days written
notice of its intent to exercise the initial renewal option or the second renewal option, if appropriate.
It is agreed that the minimum monthly rental for each and every month of the two (2) renewal terms,
if exercised, shall be as hereinafter listed, plus any and all other rental or other obligations as
contained in this Lease Agreement, as may be amended from time to time. Therefore, the rent in the
renewal .periods, but only as exercised, shall be:
Year 6 - $82,800.00 per annum .pavab!e in equal monthly i^.st?'li?1S[!t: ?f
$6,900.00.
Year 7 - $85,284.00 per annum payable in equal monthly installments of
$7,107.00.
Year 8 - $87,84104 per annum payable in equal monthly instalhments of
$7.320.00.
Year 9 - $90,477.00 pt:?r annum payable in equal monthly instailments of
$7.539.00.
Year 10- $93,192.00 per annum payable in equal monthly installments of
$7,766.00.
Year 11- $95,897.00 per annum payable in equal monthly installments of
$7,999.00.
Year 12- $98,867.00 per annum payable in equal monthly installments of
$9.2 3 9. 0 )
Year 13- $101,833.00 pet annum payable in equal monthly installments of
$8,486.00.
Year 14- $104,888.00 per annum payable in equal monthly installments of
$8,741.00.
Year 15- $108,035.00 per annum payable in equal monthly installments of
$9,003.00.
1%
110234/92-623
to the usual title objections, if any, not capable of interfering with Lessee's beneficial use of the
Premises, or any part thereof, as permitted under this Lease.
22. LIENS. Lessee and Lessor shall keep the Premises free and discharged of mechanics'
and materialmen's liens and encumbrances that result from their respective act(s) or omission(s).
23. WAIVER OF NOTICE. Lessee hereby waives all rights to legal notice wherever
provided by statute or common law and agrees that ten (10) days prior written notice by certified
mail, actual delivery or facsimile, of any default or proceedings to recover possession in the event of
default at any time shall be sufficient.
24. OPTION TO RENEW: Lessee shall have the option to renew the term for another five
(5) year period at the conclusion of the five (5) year term provided Lessee is not then in default of
any of its obligations hereunder and has provided Lessor no less than one hundred and eighty (180)
days written notice of its intent to exercise the renewal option. It is agreed that the minimum monthly
rental for each and every month of the five (5) year renewal option shall be as hereinafter listed, plus
any and all other rental or other obligations as contained in this Lease Agreement as may be amended
from time to time. The minimum rent in the renewal period shall be:
Year 6 - $82,800.00 per annum payable in equal monthly installments of $6,900.00.
Year 7 - $85,284.00 per annum payable in equal monthly installments of $7,107.00.
Year 8 - $87,842.00 per annum payable in equal monthly installments of $7,320.00.
Year 9 - $90,477.00 per annum payable in equal monthly installments of $7,539.00.
Year 10- $93,192.00 per annum payable in equal monthly installments of $7,766.00.
17
Year 11- $95,897.00 per annum payable in equal monthly installments of $7,999.00.
Year 12- $98,867.00 per annum payable in equal monthly installments of $8,239.00.
Year 13- $101,833.00 per annum payable in equal monthly installments of $8,486.00.
Year 14- $104,888.00 per annum payable in equal monthly installments of $8,741.00.
Year 15- $108,035.00 per annum payable in equal monthly installments of $9,003.00.
25. SMS. Lessee may, at its expense, erect an advertising sign over the entrance to the
Premises, providing that such sign shall comply with all local ordinances. All such signs shall be
subject to the approval of Lessor, shall be in accordance with the sign specifications attached hereto
as Exhibit "D" and made a part hereof by reference thereto, which approval shall not be unreasonably
withheld. All signs shall be placed at a location as designated by Lessor. SEE EXHIBIT D -
LESSORS SIGN SPECIFICATIONS.
26. USE. Lessee shall use and occupy the Premises as a video rental store for the rental
and sale of videos and related items. The Lessee shall also use and occupy the premises as a tanning
salon or center and for related items and for no other use without the express written consent of
Lessor, which consent shall not be unreasonably withheld.
27. EXCLUSIVE BUSINESS RIGHTS: During the term and any renewals hereof, Lessor
shall not lease to or otherwise authorize or permit, either directly or indirectly, the operation of any
other video sales and rental store or tanning salon or center in the Shopping Center, as presently
planned or expanded. Lessor has not granted the above rights in any other lease. This exclusive right
shall not preclude the rental of videos by a food supermarket or drug store in the Shopping Center,
18
provided such rental of videos constitutes an incidental part of the supermarket or drug store's
business as is customarily found in supermarkets and drug stores. If Lessee permanently closes its
video rental store on the Premises, this exclusive right shall terminate.
28. NISCELLANF-OUS PROVISIONS.
A. INVALIDITY: If any term or provision of this Lease or the application to any
person or circumstance shall, to any extent, be invalid or unenforceable, the remainder of this Lease,
or the application of such term or provision to persons whose circumstances other than those as to
which it is held invalid or unenforceable, shall not be affected.
B. SUCCESSORS, ETC.: The terms, conditions and covenants of this Lease shall
be binding upon and shall inure to the benefit of each of the parties, their heirs, personal
representatives, successors or assigns, and shall run with the land; and where more than one party
shall be lessor under this Lease, the word "Lessor" whenever used in this Lease shall be deemed to
include all lessors jointly and severally.
C. WRITING: No waivers, alterations or modifications of this Lease shall be valid
unless in writing duly executed by both Lessor and Lessee.
D. CONSTRUCTION: The captions appearing in this Lease are inserted only
as a matter of convenience and in no way define, limit, construe or describe the scope or intent of
such paragraphs of this Lease or in any way affect this Lease. Any gender used shall be deemed to
refer to any other gender more grammatically applicable to the party to whom such use of gender
19
relates. The use of singular shall be deemed to include the plural and, conversely, the plural shall be
deemed to include the singular.
E. NOTICES: It at any time after the execution of this Lease, it shall become
necessary or convenient for one of the parties to serve any notice, demand or communication upon
the other party, such notice, demand or communication shall be in writing, signed by the party serving
the same, by personal delivery, facsimile or sent by registered or certified United States mail, return
receipt requested, postage prepaid and (a) if intended for Lessor, shall be addressed to:
Mark G. Caldwell
Caldwell Development Company
434 North Front Street
Wormleysburg, PA 17043
and (b) if intended for Lessee, shall be addressed to:
Movie Merchants, Inc.
48 Central Boulevard
Camp Hill, PA 17011
with a copy to:
Robert E. Chernicoff, Esquire
CUNNINGHAM & CHERNICOFF, P.C.
2320 North Second Street
P.O. Box 60457
Harrisburg, PA 17106-0457
Any notices given shall be deemed properly given (i) upon delivery, if delivered in person or by fax
transmission with receipt acknowledged, (ii) one (1) business day after having been deposited for
overnight delivery with a reputable overnight courier service, or (iii) three (3) business days after
having been sent by U. S. registered or certified mail, postage prepaid.
20
F. FORCE MAMURE: If there shall occur any strikes, lock-outs or labor
disputes, inability to obtain adequate sources of energy, labor or materials or reasonable substitutes,
acts of God, governmental restrictions, regulations, orders, guidelines or programs, enemy or hostile
governmental action, riot, civil commotion, fire or other casualty or any other conditions, whether
similar or dissimilar to those enumerated above, which are beyond the reasonable control of the
parties to this Lease and not due to the fault or negligence of such party, these conditions shall be
deemed "unavoidable delays". If either party shall, as a result of any unavoidable delay, fail to
punctually perform any obligation specified in this Lease and such party shall give written notice to
the other party of an unavoidable delay within ten (10) days of its occurrence, then such failure shall
not be deemed a breach or default. The applicable time periods in which to perform shall be
extended, but only to the extent and for the period occasioned by an unavoidable delay.
29. BROKER'S FEES: Lessor and Lessee mutually agree that there is no real estate
broker or other party entitled to a commission as a result of producing this lease and that neither
engaged or employed a real estate broker agent to effectuate this lease. Lessor and Lessee agree to
indemnify and hold each other harmless from any claims made by any real estate broker for a
commission as a result of allegedly effectuating this Lease.
30. RECORDING: This Lease shall not be recorded by Lessee.
31. EXONERATION OF INDIVIDUALS: For satisfaction of any available remedy in
connection with this Lease, Lessee shall look solely to the equity of Lessor in the Shopping Center
and the rents and profits derived by Lessor therefrom.
21
32. ADDENDA AND EXHIBITS: This Lease includes the following Addenda
and/or Exhibits, which shall take precedence over conflicting provisions (if any) of this Lease, and
are made an
integral part of this Lease and fully incorporated by reference:
Exhibit A (Site Plan)
Exhibit B (Specification of Improvements)
Exhibit C (Memorandum of Commencement Date)
Exhibit D (Sign Specifications)
33. HOLDOVER. Should Lessee hold over the leased Premises, or any part thereof, after
the expiration of the term of this Lease and renewals, if exercised, unless otherwise agreed in writing,
such holding over shall constitute a tenancy from month to month only, and Lessee shall pay as
monthly rental one hundred and fifty percent (1501/6) of the minimum rent, plus ordinary maintenance,
taxes, insurance and all the charges due hereunder, and providing further, that no month-to-month
tenancy on expiration of the Lease results unless Lessee timely tenders and Lessor accepts the first
monthly rental therefor. All other terms and provisions of the Lease then in effect shall remain in
effect. Such tenancy may thereafter be terminated by either Lessor or Lessee upon sixty (60) days
written notice by either party to the other party. The said notice may be given by Lessor sixty (60)
days prior to the conclusion of the term as provided in Paragraph 1, if so desired.
34. ESTOPPEL STATEMENT. Within ten (10) days after a request by Lessor, Lessee
shall deliver an estoppel certificate to any proposed mortgagee or purchaser, or to Lessor, certifying
22
(if such be the case) that this Lease is in full force and effect and that there are no defense or offsets
thereto, or stating those claimed by Lessee.
35. TRVJ . Time is of the essence in this Lease and every term, covenant and condition
herein contained.
36. FINANCING CONTINGENCY. It is agreed the Lessee's obligations as contained
in this Lease Agreement are specifically contingent upon Lessee's obtainment of financing in the
amount of $250,000.00, at market rates and terms within thirty (30) days of the date of this
Agreement or any written extensions entered into between the parties. In this regard, Lessee shall
use its best efforts to timely obtain such financing and provide Lessor evidence thereof if requested-
37. LOCKS. Lessee shall have the right to install various locks on the leased Premises
providing Lessor gets copies thereof for access only upon casualty emergency.
38. ENTIRE AGREEMENT. This Lease constitutes the sole understanding of the parties
hereto and any amendments or additions shall be effective only when reduced to writing and signed
by the parties hereto.
39_ SUBMISSION NOT AN OPTION. The submission of this document for examination
does not constitute an option or offer. This document shall have no binding effect on the parties
unless executed by Lessor and Lessee and unless a fully executed copy shall have been delivered to
both Lessor and Lessee.
23
IN WITNESS WHEREOF, the parties hereto have executed this Lease Agreement the day
and year first above written, intending to be legally bound hereby.
ATTEST:
95394
CALDWELL DEVELOPMENT COMPANY, INC.
By: A&
MOVIE MERCHANTS
By: i
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31
Exhibit B
Outline Specifications
Landlord Improvements
Floor
• 4" Concrete Floor.
Perimeter Walls
• Exterior - CMU with 1 1/2" z-furring, 1 1\2" rigid insulation, 1\2" GWB, finished and
prepared for painting to 10 Ft. A.F.F.
• Interior - Steel studs, sound insulation, 5\8" GWB, finished and prepared for painting to
10 Ft. A.F.F.
Storefront
• Aluminum frame\insulated glass storefront with 3-0 x 7-0 door.
Restroom
• ADA compliant toilet room including one lavatory, one water closet, grab bars (2 ea),
18" x 30" mirror, surface mounted paper towel dispenser, toilet tissue holder, surface
mounted sanitary napkin disposal receptacle, combination light and fan. Walls shall be
finished and prepared for painting. Ceiling Ht. is 8'-0".
Doors
• Hollow metal rear exit door (3-0 x 7-0).
• Wood door (3-0 x 6-8) and frame provided for restroom.
Ceiling
• Suspended standard duty white metal grid and ceiling tiles equivalent to. Minatone
Cortega 769 by Armstrong 2'x 4'.
Plumbin¢
0 Toilet fixtures noted, 6 gallon water heater, water meter.
H.V.A.C.
4 ton roof mounted heat pump & associated ductwork, one thermostat.
Electric
• 200 AMP service\panel.
• Power outlets provided at 20 Ft. O.C. on side walls only.
• 2 x 4 recessed fluorescent lighting.
• Circuit to junction box located in front canopy for store sign.
• 750 watt electric baseboard heat in restroom if located on exterior wall.
• Exit light signage (2ea).
• Wall mounted remote emergency fighting heads (2 ea).
• Wall mounted emergency lighting.
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"EXHIBIT" C,
MEMORANDUM OF COMMENCEMENT DATE
This memorandum of Commencement Date is made on this 26 day of January 1999,
between Caldwell Development, Inc., Lessor and Movie Merchants, Lessee.
Whereas, Lessor and Lessee entered into a Lease Agreement (lease) dated as of March 26,
1998 for a leased premises in Upper Allen Township, Cumberland County, Pennsylvania, more
specifically described in the Lease.
Whereas, Section 1 of the Lease provides that Lessee and Lessor shall specify the
commencement date of the Lease by Memorandum.
Now therefore, the Lessor and Lessee agree to supplement the Lease as follows:
1. The Commencement Date of the Lease is February 1, 1999, and rent shall accrue
on and from said date.
2. The term of the Lease is from February 1, 1999 through January 31, 2004.
3. The Lease, except as herein supplemented, is in all other respects fully ratified and
confirmed.
Exhibit D
Sign Criteria
A. GENERAL
1. Tenant is required to identify its premises by a sign, which it shall furnish and
install at its own expense. Signs shall meet the Sign Criteria as outlined herein and shall be
approved by local authorities, which approval shall be obtained by Tenant and at its
expense. Any sign which does not conform or is improperly manufactured and/or
installed, shall be removed at Tenant's expense.
2. All signs shall be individually lettered and internally illuminated as outlined in this
Exhibit. Signs shall have Underwriter's Laboratories' label of approval on all parts and
completed display.
B. SIGN CRITERIA - EXTERIOR
1. The sign shall be located on the exterior fascia, as determined by Landlord.
2. Sign wordage shall be limited to the store name only on a single line.
3. The use of logos or insignia (which shall not exceed the average height of sign
letters) may be permitted, subject to Landlord's approval.
4. The maximum height of sign letters or components shall not exceed 30 inches.
The length of the sign shall not exceed eighty percent (80%) of the length of the store
front. The length of the sign shall be centered over the store front.
5. Landlord shall provide wiring for one (I) 120 volt circuit only to building fascia.
Cost and installation of additional circuits will be the responsibility of Tenant.
C. SIGN APPROVAL
1. No sign shall be erected until written specifications and drawings for said sign are
approved in writing by Landlord.
2. Tenant shall submit to Landlord three (3) sets of all sign drawings and
specifications which shall show the location of the sign on the buildings, the size,
construction materials, colors, script, attachment details, electrical load requirements,
brightness, in-foot lamberts and name, address and phone number of sign
manufacturer/installer.
3. Landlord shall return to Tenant one set of such sign plans within fifteen (15) days,
with suggested modifications or approval.
D. INDEMNIFICATION BY TENANT
Tenant shall, at its own risk and expense, erect said sign and maintain sign in a good state
of repair. Tenant hereby agrees to indemnify Landlord against and save Landlord
harmless from any loss, cost or damage resulting from the erection, maintenance, existence
or removal of said sign and further agrees to repair, at its sole expense, any damage which
may be caused by the erection, maintenance, existence or removal of such sign. Upon
vacating the premises, Tenant agrees, at its sole expense, to remove all signs and repair
any and all damage caused by such removal, within thirty (30) days of vacating premises.
E. DESIGN STANDARDS
1. All signs shall be comprised of individual letters. Sign letters shall have metal sides
and back made of .040 gauge aluminum #313 Dark Bronze Duranodic finish with
minimum one-eighth inch acrylic plastic faces,with trip cap edging to match aluminum.
These letters are to be mounted directly to the front canopy facade with non-corrosive
fasteners. All attachment devices shall be concealed inside the letter casing.
2. Secondary wiring and transformers shall be housed in metal conduit concealed
behind the canopy facia. No open wiring is permitted.
3. Sign letters not exceeding two and three quarter inch (2 3\4") stroke shall contain
not more than two (2) rows, nor less than one (1) row, of 12mm neon tubing.
4. Sign letters not exceeding four inch (4") stroke shall contain not more than four
rows, but not less than two rows of 12 mm neon tubing.
5. The color rendition of neon tubing shall be coordinated with the color of the
translucent plastic face of the sign letter. No exposed tubing or lamps will be permitted.
No glo-plex tubing will be permitted.
6. All 12 mm mercury filled neon tubing shall be controlled by self contained U.S.
approved 60 MA. H. P.F. 120 volt transformers (as many as may be required), 30 MA.
transformers may be used with orange, copper or red tubing only.
7. Tenant's sign contractor shall connect sign to wiring provided at a designated
location behind exterior facia.
8. No exposed conduit, junction boxes or raceways permitted.
9. No light leakage will be permitted on sides, back or front of letter.
10. Signs shall not project beyond the front face of building fascia by more than four
inches (4").
11. All letters within the sign shall be of one color when sign is lighted. Clear, smoked
or tinted acrylic faces which allows for neon to be seen will not be permitted.
12. All signs, once installed, are to be inspected by an authorized inspection company
to insure that the signs are up to standard safety specifications. The cost of said inspection
is the Tenant's responsibility.
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EXHIBIT "B"
CAIDNVEU
DEVELOPMENT COMPANY
September 18, 2003
Patricia Greenburg
Movie Merchants
48 Central Boulevard
Camp Hill, PA 17011
Re: Parkway Plaza
Lease Renewal Option
Dear Trish,
This letter is to inform you that the initial lease term stated in the lease between
Caldwell Development, Inc. and Movie Merchants of Mechanicsburg, Inc. dated March
26, 1998, will expire on January 31, 2004. Your option to renew and extend the term of
the lease (as stated in paragraph 24 - copy enclosed) for the initial five (5) year period
lapsed on August 5, 2003. We will, however, provide the opportunity for you to exercise
the renewal option at this time.
Upon exercising the option and effective on February 1, 2004, the annual rent will
be $82,800 or S6,900 per month through January 31, 2005.
Please acknowledge your acceptance by signing below and returning a copy of
this letter for our files. Feel free to contact us if you have any questions.
Sincerely,
&44ar Kelly
By sigrung low a Merchants of Mechanicsburg, Inc. exercises its option to renew
and ext i itial ewal term of five (5) years as stated in the lease dated March 26,
Patrdia Greenburg, Secretary / Treasurer
Movie Merchants of Mechanicsburg, Inc.
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EXHIBIT "C"
LEASE MODIFICATION AGREEMENT
LEASE MODIFICATION AGREEMENT (this "Aegt") dated as of the
day of November, 2008 between CEDAR-PARKWAY PLAZA, LP, a Delaware limited
partnership having an office c/o Cedar Shopping Centers, Inc., 44 South Bayles Avenue, Suite
304, Port Washington, New York 11050 (hereinafter referred to as "Landlord) and MOVIE
MERCHANTS OF MECHANICSBURG, INC., a Pennsylvania corporation having a business
address at 48 GmW Camp Hill, Pennsylvania (hereinafter referred to as "Tenant").
NIT T> L
WHEREAS, Landlord's predecessor in interest, Caldwell Development, Inc., as
landlord, and Tenant entered into that certain lease agreement dated March 26, 1998 covering
certain retail space as more particularly described in the lease agreement (the "Premises"), in the
shopping center known as Parkway Plaza Shopping Center, Upper Allen Township, Cumberland
County, Pennsylvania (the "Shopping Center'), which lease agreement was thereafter modified
by that certain: (i) Letter agreement dated February 14, 2002; and (ii) Renewal Letter Agreement
dated September 18, 2003 (said lease agreement, as so modified and extended, is hereinafter
referred to as the "Lease"); and
WHEREAS, the Lease, as extended, is currently scheduled to expire on January
31, 2009 (the "Current Expiration Date-), and
WHEREAS, Tenant has requested that Landlord defer a portion of the Minimum
Rent due for the months of November 2008 and December 2008 (the "Deferral Period").
WHEREAS, Tenant wishes to extend the tern of the Lease, as modified by this
Agreement, for the Premises, for an additional term of three (3) Lease Years (the " ed
Term") to commence as of February 1, 2009 (the "Extended Term Commencement Date") and to
expire on January 31, 2012 (the "Extended Term Expiration Date"); and
WHEREAS, subject to and in accordance with the terms, covenants and
conditions of this Agreement, Landlord has agreed to permit Tenant to extend the term of the
Lease for the period of the Extended Term; and
WHEREAS, Tenant and Landlord wish to modify the Lease as set forth below.
NOW, THEREFORE, in consideration of the mutual agreements herein contained
and other good and valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, the parties hereby agree as follows:
Deferral of Rent.
(a) If and for so long as Tenant is not in default under the Lease or this Agreement
after notice and beyond the expiration of any applicable grace or cure period, Landlord agrees to
S:\1.egaN-c3%P-nsy1vania\P8rkway PIUMMovie MetchRR&& naval ABeemmt Parkway 00J.doc
abate a portion of the Minimum Rent, in the amount of $1,164.90, accruing each month during the
Deferral Period, for an aggregate abatement of $2,329.80 (the "Defe red Rent"). Notwithstanding
the foregoing, however, Tenant shall remain obligated to pay all other monthly installments of
Minimum Rent and all additional rent and charges otherwise due and payable under the Lease.
(b) Tenant agrees to pay to Landlord the Deferred Rent, in two (2) equal monthly
installments, each in the sum of $1,164.90, and each due and owing to Landlord on or before
January 1, 2009 and February 1, 2009 respectively, in addition to all other monthly installments of
Minimum Rent and other charges otherwise due and payable under the Lease.
(c) in the event that Tenant (i) fails to pay fully any installment of the Deferred Rent,
Minimum Rent, or any additional rent or charges as required under the Lease, as modified herein, or
(ii) defaults in the performance of any other covenant contained in the Lease or this Agreement,
after Tenant's receipt of written notice of the existence of such default and the expiration of a five
(5) day cure period, in addition to any and all other remedies available to Landlord under the Lease,
under this Agreement, at law or in equity, such faihme shall constitute a material default under the
Lease and the entire unpaid balance of the Deferred Rent together with interest thereon from the
date of default at the maximum permitted legal rate of interest at the time of such default shall
immediately be due and repaid to Landlord, without further notice or demand.
2. Term.
(a) Effective as of the date of this Agreement, the Term of the Lease shall be
extended under the same'terms, covenants and conditions contained in the Lease, except to the
extent specifically modified by this Agreement, for the period of the Extended Term so that the
Term of the Lease shall expire on the Extended Term Expiration Date or on such earlier date
upon which the Term of the Lease shall expire, be canceled or terminated pursuant to any of the
conditions or covenants of the Lease or pursuant to law.
(b) Tenant shall have no further right to extend the term of this Lease except as
may be expressly set forth in this Agreement.
Minimum Annual Rent and Additional Rent.
(a) Prior to the Extended Term Commencement Date, Tenant shall pay all
Minimum Annual Rent, Additional Rent and other charges accruing under the Lease as
originally provided for therein.
(b) Effective as of the Extended Term Commencement Date, in addition to all
Additional Rent and other charges accruing under the Lease, the Tenant shall pay Minimum
Annual Rent for the Premises, during the Extended Term, at the following rates:
Period Annual Minimum Rent li+tmth}v(,y„mp„t
2/1/09- 1/31/2010 $93,180.00 S7" 766.00
2/1/10-1/31/2011 $95,043.60 $7;92030
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2/1/11 - 1/31/2012 $98,844:60
4. Renewal Options
(a) O,Qtions to Renew. Tenant shall have the option(s) to extend the term of this
Agreement as set forth herein for two (2) successive, additional renewal terms each of three (3)
Lease Years (the "First Renewal Term" and the "Second Renewal Term" respectively). Tenant
t must give the Landlord at least one (1) prior written notification to extend this Lease for
such Renewal Term(s). In order to be effective, Tenant must not be in default in any of its
obligations under this Lease, after notice and beyond the expiration of all applicable grace and/or
cure periods, at the time of such notice is given or upon the effective date of such renewal.
Landlord, in its sole opinion and discretion may elect to extend the Term of this Lease for such
Renewal Term notwithstanding Tenant's default. In no event shall a renewal by Landlord be
deemed, by any party, to be a waiver of such default nor shall Landlord be estopped from
demanding that Tenant cure such default, solely by virtue of extending the Term of the Lease. In
the event that Tenant shall fail to exercise the First Renewal Term, the Second Renewal Tenn
shall immediately lapse and be of no further force or effect.
(b) Provided that Tenant timely exercises its option to renew the Lease as set
forth above, Tenant shall pay Minimum Rent for the Premises during such applicable Renewal
Term at the greater of (i) a five percent (51/o) annual increase over and above the Minimum Rent
payable for the Lease Year immediately prior to the applicable Lease Year; or (ii) an annual
increase in Minimum Rent equal to the increase of the Consumer Price Index (as hereinafter
defined) as it exists on the first day of the prior Lease Year (the `Base Index') as opposed to the
Consumer Price Index as it exists on the first day of the then applicable Lease Year (hereinafter
called the "Base Index") and thereafter the future Minimum Rent shall be subject to the annual
increase of the Consumer Price Index as it exists on the first day of the prior Lease Year, as
opposed to the first day of such successive Lease Year.
As used herein "Price Index" shall mean the Consumer Price Index, Philadelphia-Wilmington-
Atlantic City, PA-NJ-DEL-MD All Urban Consumers (U.S. City Average), as compiled and
published by the Bureau of Labor Statistics, United States Department of Labor, which became
effective January, 1978. If such Price Index should in the future be compiled on a different basis,
appropriate adjustments will be made for the purposes of computations under this Article. If the
United States Department of Labor no longer compiles and publishes such Price Index, any
-comparable index published by any other branch or department of the Federal Government shall
be used for the purpose of computing the adjustments herein provided for and, if no such index is
compiled and published by any branch or department of the Federal Government, that statistics
reflecting cost of living changes as compiled by any institution, organization or individual
generally recognized as an authority by financial and insurance institutions shall be used as a
basis for such adjustments.
5. Miscellaneous Lease Modifications.
S:\Legal\I.easeMcrmsylvanis\Parkway Plaza\Movic MwchantAKenewal Agreement Parkway 001.doc
(i) The Lease is hereby modified by requiring that Tenant forward all payments
of Minimum Rent, Additional Rent, and all other charges made payable to "Cedar-parkway
Plaza, LP" and same shall be remitted to the following address, in lieu of the address as set forth
in the Lease:
Cedar-Parkway Plaza, LP
c% Cedar Shopping Centers, Inc.
44 South Bayles Avenue
Suite 304
Port Washington, New York 11050
(ii) Article 28, Subsection E of the Lease ("Notices") is hereby modified by
adding the requirement that all legal notices to Landlord be sent to the following address in lieu
of the address as set forth in the Lease:
Cedar-Parkway Plaza, LP
do Cedar Shopping Centers, Inc.
44 South Bayles Avenue
Suite 304
Port Washington, New York 11050
Attention: Brenda I Walker
With an additional copy sent to:
Cedar-Parkway Plaza, LP
c% Cedar Shopping Centers, Inc.
44 South Bayles Avenue
Suite 304
Port Washington, New York 11050
Attention: Stuart Widowskh, Esq.
6. Successors and Assigns.
This Agreement shall be binding upon and inure to the benefit of the parties and
their respective successors and permitted assigns.
Entire Agreement.
The Lease, as modified by this Agreement, represents the entire understanding
between the parties with regard to the matters addressed herein and may only be modified by
written agreement executed by all parties hereto. All prior understandings or representations
between the parties hereto, oral or written, with regard to the matters addressed herein, otter than
the Lease, are hereby merged herein. Tenant acknowledges that neither Landlord nor any
representative or agent of Landlord has made any representation or warranty, express or implied,
as to the physical condition, state of repair, layout, footage or use of the Premises or any matter
4
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or thing affecting or relating to the Premises except as specifically set forth in this Agreement.
Tenant has not been induced by and has not relied upon any statement, representation or
agreement, whether express or implied, not specifically set forth in this Agreement. Landlord
shall not be liable or bound in any manner by any oral or written statement, broker's "set-up",
representation, agreement or information pertaining to the Premises or this Agreement famished
by any real estate broker, agent, servant, employee or other person, unless specifically set forth
herein, and no rights are or shall be acquired by Tenant by implication or otherwise unless
expressly set forth herein.
8. Effectiveness.
This agreement shall not be binding upon Landlord and Tenant until executed and
delivered by both Landlord and Tenant.
9. Ratification.
Except as specifically modified herein, all other terms, covenants and conditions
of the Lease are and shall remain in full force and effect and are hereby ratified and confirmed.
Tenant acknowledges that Landlord is not in breach of the Lease and Tenant has no claim for
any failure of Landlord to perform its obligations under the Lease. in accordance with the
foregoing, Tenant is hereby estopped from raising any claim pertaining to a default by Landlord
prior to the date hereof.
Notwithstanding the amendments to the Lease as contemplated in this Agreement
and notwithstanding anything to the contrary contained in this Agreement, Tenant shall remain
liable for any unpaid Minimum Annual Rent, Additional Rent and other charges accruing under
the Lease through and including the Extended Term Commencement Date.
10. No Brokem(lademnification.
Tenant covenants, represents and warrants that Tenant has had no dealings or
negotiations with any broker or agent in connection with the consummation of this agreement
other than Cedar Shopping Centers Partnership, L.P. and Tenant covenants and agrees to defend,
hold harmless and indemnify Landlord from and against any and all cost, expense (including
reasonable attorneys' fees) or liability for any compensation, commissions or charges claimed by
any other broker or agent with respect to this Agreement or the negotiation thereof.
11. Miscellaneous.
(a) The captions in this Agreement are for convenience only and are not to be
considered in construing this Agreement.
(b) This Agreement shall be construed without regard to any presumption or
other rule requiring construction against the party causing this agreement to be drafted.
(c) Terms used in this Agreement and not otherwise defined herein shall have the
5
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Tenant or its agents, representatives or employees which was not permitted by this Article.
Additionally, Tenant shall exercise all reasonable efforts to obtain a protective order or other
reliable assurance that confidential treatment will be accorded any such information which is
disclosed.
IN WITNESS WHEREOF, Landlord and Tenant have duly executed this
Agreement as of the day and year first above written.
LANDLORD:
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Mr. t°
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CEDAR SHOPPING CENTERS, INC.
44 Soneh Bayles Avenue
7 Wd,gtou, NY 11050-3765
psw.oed "*Mingcentas.com
CERTIFIED MAIL - RETURN RECEIPT REQUESTED
September 25, 2009
Movie Merchants of Mechanicsburg, Inc.
t/a Blockbuster
3514 Trindle Rd. rd fl.
Camp Hill, PA 17011
RE: Parkway Plaza
Mechanicsburg, PA
NOTICE OF DEFAULT
PLEASE TAKE NOTICE that pursuant to the Lease, you are hereby advised that you
are in default and in violation of your tenancy, to wit:
Failure to pay rent and additional rent due through September 2009 in the sum of
TWENTY FOUR THOUSAND SIX HUNDRED SEVENTY-SEVEN AND 93/100
DOLLARS ($24,677.93).
PLEASE TAKE'FURTHER NOTICE that in the event you fail to cure said violation
within ten (10) days of this notice, the undersigned Landlord shall pursue such remedies
as it deems appropriate, which may, include, without limitation, termination of your
tenancy, re-entry of your Premises and/or any other remedy provided in your Lease or at
law.
Dated: September 25, 2009
Port Washington, New York
CEDAR-PARKWAY PLAZA LP
By:
Bren alker
Vice President
cc: Stuart Widowski, Esq.
1? A, %
S1RL1N CALLOCLY & LESSER
A PROFESSIONAL CORPORATION
ATTORNEYS AT LAW
1014 C. SIRLI14
TIMOTHY A. GALLOGLY
PETER A. LESSER •
JOHN D. BENSON
SUSAN 1. KUPERSMITH •`
DANA S. PLON *
DOROTHY ANNE HAMILL
LISA M. RUTENBERG **•
JERRY 1. DREW**
KIERSTIN M. LANGE
ADAM NACHMANI
'COUNSEL
-PA * NJ BAR
-PA • NY BAR
*-PA. NI * MD
December 30, 2009
PERSONAL & CONFIDE
Movie Merchants of Mechanicsburg Inc. d/b/a
Blockbuster
3514 Trindle Road, 2' Floor
Camp Hill, PA 17011
PENNSYLVANIA OFFICE
1529 WALNUT STREET
SUITE 600
PHILADELPHIA, PA 19102
(215) 864-9700
FAX (215) 864-9669
NEW JERSEY OFFICE
102 BROWNING LANE
BUILDING C
CHERRY HILL, NJ 08003
(856) 616-1900
FAX (856) 216-7459
Re: Cedar-Parkway Plaza LP - Movie Merchants of Mechanicsburg Inc. d/b/a
Blockbuster
DEFAULT NOTICE - Parkway Plaza
Our File No. 16557
Dear Sir or Madam:
Please be advised of our representation of the Landlord at the Parkway Plaza Shopping
Center. I have been advised by my client that Movie Merchants of Mechanicsburg Inc. d/b/a
Blockbuster (" Tenant") is in default of the Lease dated March 29, 1998 as amended for failing to
pay rent and proper charges through the date hereof in the amount of $43,708.58. As you know,
January rent and charges are due on January 1, 2010.
This letter will serve as formal notice of default pursuant to Section 18A of the Lease.
Unless the arrearage, January rent and legal fees in the current amount of $750.00 is paid in full
within ten (10) days from the date of this letter, I have been instructed to commence appropriate
legal action against Tenant for past due charges, possession of the premises, additional
attorney' s fees, late fees and accelerated rent through the remainder of the lease term without
further notice or delay.
t •, •
SIRLIN GALLOGLY 8 LESSER, P.C.
Please avoid the expense and inconvenience of litigation and execution by making
immediate payment and by contacting me to discuss this matter.
Sincerely,
PAL/dp Peter A. Lesser
Via Certified and Regular Mail
cc: Brenda Walker
SHERIFF'S OFFICE OF CUMBERLAND COUNTY
Ronny R Anderson
Sheriff
Jody S Smith
Chief Deputy
Edward L Schorpp
Solicitor
~Q~~~tiv` of ~~raut,t~.f~~4
.~-;
Cedar-Parkway Plaza LP By Its Agent: Cedar Shopping Centers Partnersh
vs.
Movie Merchants of Mechanicsburg Inc. t/a Blockbuster
Case Number
2010-726
SHERIFF'S RETURN OF SERVICE
02/02/2010 10:40 AM -Shawn Harrison, Deputy Sheriff, who being duly sworn according to law, states that on
February 2, 2010 at 1040 hours, he served a true copy of the within Complaint and Notice, upon the within
named defendant, to wit: Movie Merchants of Mechanicsburg Inc. t/a/ Blockbuster, by making known unto
William Simon, Team Leader at Movie Merchants of Mechanicsburg Inc. t/a Blockbuster at 295
Cumberland Parkway, Mechanicsburg, Cumberland County, Pennsylvania 17055 its contents and at the
same time handing to him personally the said true and correct copy of the same.
SHERIFF COST: $37.00
February 03, 2010
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(cj Counij3ufte Shensi. Teisosoft, h',~:.
CEDAR-PARKWAY PLAZA, LP,
Plaintiff
v.
MOVIE MERCHANTS OF
MECHANICSBURG, INC.
t/a BLOCKBUSTER,
Defendant
IN THE COURT OF COMMO~LE~
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CUMBERLAND COUNTY, s
PENNSYLVANIA'-, r`
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• NO: 10-726 -s -~-.
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DEFENDANT'S ANSWER TO PLAINTIFF'S COMPLAINT -CIVIL ACTION
BREACH OF CONTACT -DAMAGES
AND NOW, comes the Defendant, Movie Merchants of Mechanicsburg, Inc. t/a
Blockbuster ("Movie Merchants") by and through its counsel, Cunningham & Chernicoff, P.C.,
who answers Plaintiff s Complaint as follows:
1. Admitted upon belief.
2. Admitted.
3. Admitted in part. It is admitted that on or about March 26, 1998 the Caldwell
Development, Inc. and Movie Merchants entered into a Lease Agreement. The
terms of such a Lease Agreement are contained in a writing attached to Plaintiff s
Complaint and are the best evidence concerning the subject of such an averment.
4. Admitted. By way of further answer, the contents of the documents referred to by
Plaintiff in its Complaint are contained in a writing attached as an Exhibit to
Plaintiffs Complaint and is the best evidence concerning the subject matter
thereof.
5. It is admitted that on or about November 1, 2008, Plaintiff and Movie Merchants
entered into a Lease Modification Agreement. The terms of such Modification
Agreement are contained in a writing which is attached to Plaintiff s Complaint
and is the best evidence concerning the subject of such an averment.
6. This allegation refers to a writing attached to Plaintiff s Complaint which is the
best evidence concerning the subject of such an averment.
7. Denied. This allegation is a conclusion of law to which no response is required.
To the extent that a response is judicially deemed to be required, it is specifically
denied. By way of further answer, it is believed, and therefore averred, that all
payments made by Movie Merchants, to Plaintiff, may not have been properly
credited and a strict accounting of all payments made and applied is hereby
demanded, if relevant, at the time of trial.
Denied as stated. While it is admitted that Movie Merchants has refused to pay
the amount Plaintiff alleges to be due and owing, it is specifically denied that such
amount is proper. By way of further answer, Movie Merchants believes and
therefore avers that all payments made to date may not have been properly
credited and a strict accounting of all payments made and applied is hereby
demanded, if relevant, at the time of trial.
9. This allegation refers to a writing attached to Plaintiffs Complaint which is the
best evidence concerning the subject of such an averment.
10. This allegation refers to a writing attached to Plaintiff s Complaint which is the
best evidence concerning the subject of such an averment.
WHEREFORE, Defendant, Movie Merchants of Mechanicsburg, Inc. t/a Blockbuster,
respectfully requests that this Honorable Court dismiss Plaintiffs Complaint with prejudice and
grant Defendant such further relief as is just proper.
COUNT II -ACCELERATED RENT
11. Defendant hereby incorporates Paragraphs 1 through 10 as if fully set forth herein.
12. Denied. This allegation is a conclusion of law to which no response is required.
To the extent that a response is judicially deemed to be required, it is specifically
denied. By way of further answer, Movie Merchants believes, and therefore avers,
that all payments made to date may not have been properly credited and a strict
accounting of all payments made and applied is hereby demanded, if relevant, at
the time of trial.
13. Denied. This allegation is a conclusion of law to which no response is required.
To the extent that a response is judicially deemed to be required, it is specifically
denied. By way of further answer, Movie Merchants believes, and therefore avers,
that all payments made to date may not have been properly credited and a strict
accounting of all payments made and applied is hereby demanded, if relevant, at
the time of trial. By way of further answer, the Lease is a writing, attached to
Plaintiffs Complaint, which is the best evidence concerning the subject of such an
averment.
02/24f2010 17:14 3056698199 THE UPS STORE
VERIF,[CATION
I, Patricia Oreenberg, Vice President of Movie Merchants of Mech~a~nicsburg, Inc. t/a
Biacl~buster v
erify that the statements made in. floe foregoing A~aswer are~true and correct. I
understand that false statements herein are roads subject to the penaities tlf i 8 Pa. C.S. §49p4,
relating to unsworn, fai.s~iication to authorities.
MQVIE ME,RC S Ol~ MECH,I~NICS$URG, INC.
t/a FLOC US
'''~--~.
$y: atricia Csreenberg
I !~ its: Vice President
bate: ~t oC ~ ~~~
PAGE 07f 07
WHEREFORE, Defendant, Movie Merchants of Mechanicsburg, Inc. t/a Blockbuster,
respectfully requests that this Honorable Court dismiss Plaintiff s Complaint with prejudice and
grant Defendant such further relief as is just
By
~& CHERNICOFF, P.C.
Harrisburg, PA 17110
Telephone: (717) 238-6570
Attorney for Defendant
Date: February 25, 2010
2320 North Second. Street
CERTIFICATE OF SERVICE
I, Julieanne Ametrano, Legal Secretary for the law office of Cunningham & Chernicoff,
P.C., do hereby certify that a true and correct copy of the DEFENDANT'S ANSWER TO
PLAINTIFF'S COMPLAINT -CIVIL ACTION BREACH OF CONTACT - DAMAGES in
the above-captioned matter was sent first class U.S. Mail, First Class Mail, postage prepaid on
this date, to the following:
Peter A. Lesser, Esquire
Sirlin Gallogly & Lesser, P.C.
1529 Walnut Street
Suite 600
Philadelphia, PA 19102
Date: February 25, 2010
HAM & C,~IERNICOFF, P.C.
Julieanne Ametrano
2320 North Second Street
Harrisburg, PA 17110
Telephone: (717)238-6570
F:\Home\KKNIGHT\DOCS\Movie Merchants\Cedar Parkway Plaza\Answer to Complaint.wpd
•
�F CU
David-D. Buell e Q Renee X Simpson
(Prothonotary o . Z 1St Deputy prothonotary
irks. Sofionage, E,SQ. Irene E. Morrow
Solicitor 7750 2nd Deputy prothonotary
Office of the Prothonotary
Cumberland County, Pennsylvania
`Q — 1V:2,4p) CIVIL TERM
ORDER OF TERMINATION OF COURT CASES
AND NOW THIS 2918 DAY OF OCTOBER, 2013, AFTER MAILING NOTICE OF
INTENTION TO PROCEED AND RECEIVING NO RESPONSE-THE ABOVE
CASE IS HEREBY TERMINATED WITH PREJUDICE IN ACCORDANCE WITH
PA R.C.P.230.2.
BY THE COURT,
DAVID D. BUELL
PROTHONOTARY
One Courthouse Square • Suite 100 • Carlisle, PA 17013 • (717)240-6195 • ¶'a., (717)240-6573