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Johnson, Duffle, Stewart & Weidner
By: David J. Lanza
I.D. No. 57752
301 Market Street
P. 0. Box 109
Lemoyne, Pennsylvania 17043-0109
(717) 761-4540
FORKLIFTS, INC.,
Plaintiff
V.
LEO BLOOM and IF SERVICES LTD., a/k/a
IFS LTD., both individually and t/d/b/a IF
SERVICES LTD., and IFS LTD.,
Defendants
NOTICE TO DEFEND
To the Defendant:
NO. Cf7 f 7.59
CIVIL ACTION - LAW
IN REPLEVIN
You have been sued in court. If you wish to defend against the claims set forth in the following pages,
you must take action within twenty (20) days after this complaint and notice are served, by entering a written
appearance personally or by attorney and filing in writing with the court your defense or objections to the
claims set forth against you. You are warned that if you fail to do so the case may proceed without you and a
judgment may be entered against you by the court without further notice for any money claimed in the
complaint or for any other claim or relief requested by the Plaintiff. You may lose money or property or other
rights important to you.
YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE A
LAWYER OR CANNOT AFFORD ONE, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW TO
FIND OUT WHERE YOU CAN GET LEGAL HELP.
Cumberland County Bar Association
2 Liberty Avenue
Carlisle, Pennsylvania 17013
Telephone: (717) 249-3166
1!
_.tl
Attorneys for Plaintiff
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
77 .-
Johnson, Duffle, Stewart & Weidner
By: David J. Lanza
I.D. No. 57782
301 Market Street
P. 0. Box 109
Lemoyne, Pennsylvania 17043.0109
(717) 761-4540
Attorneys for Plaintiff
FORKLIFTS, INC., IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
Plaintiff
T
NO. 99. 9yd/ erg
v.
CIVIL ACTION - LAW
LEO BLOOM and IF SERVICES LTD., a/k/a
IFS LTD., both individually and t/d/b/a IF IN REPLEVIN
SERVICES LTD., and IFS LTD.,
Defendants
COMPLAINT
1. The Plaintiff, FORKLIFTS, INC., is a Pennsylvania corporation with a principal place of
business at 3925 Trindle Road, Camp Hill, Cumberland County, Pennsylvania 17011.
2. The Defendant, LEO BLOOM, is an adult individual t/d/b/a IF Services LTD., and IFS
Limited, with a place of business at Building #3, 1302 Slate Hill Road, Camp Hill, Cumberland County,
Pennsylvania 17011.
3. The Defendant IF SERVICES LTD, is a business entity of undetermined nature t/d/b/a IF
Services LTD., and IFS Limited, with a place of business at Building #3, 1302 Slate Hill Road, Camp Hill,
Cumberland County, Pennsylvania 17011.
4. On or about March 21, 1997, Plaintiff and Defendants' predecessor ("Predecessor") entered
into an Agreement whereby Plaintiff agreed to lease to Predecessor a Clark ESM II Forklift in exchange for
monthly payments of $499.00. A true and correct copy of the aforesaid Agreement is attached hereto as
Exhibit "A."
5. On or about March 28, 1997, Plaintiff and Predecessor entered into an Agreement whereby
Plaintiff agreed to lease to Predecessor a Dock Leveler in exchange for monthly payments of $250.00. A
true and correct copy of the aforesaid Agreement is attached hereto as Exhibit "B."
6. The Master Rental Agreement concerning both the Forklift and the Leveler is attached hereto
as Exhibit "C."
7. In or about March 1998, Defendants took possession of the aforesaid forklift. A true and
correct copy of the Agreement whereby Defendants assumed the obligations of Defendants' predecessor is
attached hereto as Exhibit "D."
COUNTI
BREACH OF CONTRACT
8. Plaintiff incorporates the averments of paragraphs one (1) through seven (7) as if fully set forth
herein.
9. In or about March of 1998, Defendants, pursuant to Exhibit "D", assumed the obligation
contained in Exhibits "A"-"C."
10. Defendants informed Plaintiffs that Defendants would pay the monthly rent for the equipment.
11. Defendants, including Leo Bloom, made several payments pursuant to Defendants' assumption
of the agreement.
12. Defendants retained possession of the aforesaid equipment.
13. Defendants are in breach of the aforesaid agreement in that they failed to pay the monthly
rental payments for the months including and after May 1999.
14. True and correct copies of Plaintiffs invoices are attached hereto as Exhibit "E."
15. Pursuant to the aforesaid agreements, Defendant is required to reimburse Plaintiff for all
reasonable attorney fees.
16. The usual and customary attorney fee incurred by Plaintiff is twenty percent (20%) of the
balance due.
17. Plaintiff is entitled to judgment in the amount of $6,521.62, calculated as follows:
Unpaid rent $ 5,250.00
Interest at 6% per annum
from 05/01/99 through 12/01/99 $ 184.68
20% attorneys fees $ 1,086.94
Total: $ 6,521.62
18. Plaintiff has demanded the aforesaid sums from Defendant but Defendant has refused and
neglected and continues to refuse and neglect to pay the same or any part thereof.
WHEREFORE, Plaintiff demands judgment against Defendant in the amount of $6,521.62, together
with costs and interest from December 1, 1999.
COUNTY
IN QUANTUM MERUIT
19. Plaintiff incorporates the averments of paragraphs one (1) through eighteen (18) as if fully set
forth herein.
20. Plaintiff provided and made available the aforesaid forklift to Defendants pursuant to
Defendant's requests.
21. Plaintiff conferred a material benefit upon Defendant upon the promise of Defendant to pay the
reasonable rental value of Plaintiffs equipment.
S
22. Plaintiff expected remuneration from Defendants at the time of the equipment rental.
23. Defendant was aware that Plaintiff expected payment for the use of Plaintiffs equipment.
24. Despite demand by Plaintiff for payment for Plaintiffs services, payment has not been received.
25. Defendants' failure to make payment resulted in Defendants' unjust enrichment.
26. The value of the aforesaid equipment rental (less payments made) equals $5,250.00 (plus
costs and interest and attorney fees) as set forth on Plaintiffs invoices.
WHEREFORE, Plaintiff demands judgment against Defendant in an amount in excess of $5,250.00
plus costs, interest, and attorney fees.
COUNT 111
27. Plaintiff incorporates the averments of paragraphs one (1) through twenty-six (26) as if fully set
forth herein.
28. Defendant owes Plaintiff the amount of $5,250.00 for the equipment rental (plus interest and
costs) in accordance with a book account, a true and correct copy of which is attached hereto as Exhibits "A"
through "E."
29. Plaintiff has demanded the total amount due.
30. Defendant has refused and neglected and still refuses and neglects to pay the same or any part
thereof.
WHEREFORE, Plaintiff demands judgment against Defendant in the amount of $5,250.00 plus costs,
interest, and attorney fees.
S
COUNT IV
REPLEVIN
31.
herein.
32.
33.
34.
of said forklift.
35.
Plaintiff incorporates the averments of paragraphs one (1) through thirty (30) as if fully set forth
Plaintiff is the owner of the forklift at issue in this case.
Plaintiff is entitled to immediate possession of the aforesaid forklift.
Defendants continue wrongly to detain said forklift and unlawfully deprive Plaintiff of possession
Plaintiff has demanded the return of the aforesaid forklift, but Defendants refuse and neglect to
return Plaintiffs forklift.
36. The value of the forklift is approximately $6,500.00.
37. The forklift is located at 1302 Slate Hill Road, Camp Hill, Cumberland County, Pennsylvania
17011.
WHEREFORE, Plaintiff demands judgment against Defendant for possession of the aforesaid forklift.
Respectfully submitted,
JOHNSON, DUFF STEWART & WEIDNER
By:
David J. Lanza
Attorney I.D. No. 55782
301 Market Street
P.O. Box 109
Lemoyne, PA 17043-0109
120565 Telephone(717)761-4540
Attorneys for Plaintiff
VERIFICATION
I, JOHN McKENZIE, Credit Mangager of FORKLIFTS, INC., verify that the statements made in the
foregoing COMPLAINT are true and correct to the best of my knowledge, information and belief. I understand
that false statements made herein are subject to the penalties of 18 Pa.C.S. §4904 relating to unsworn
falsification to authorities.
By: dum ldzifI
1 61,
Dated: 4
° ?3
- f"
l
Exhibit A
n
01/20/08 TUE 11:24 FAX 717 783 0125 FORKLI FTS. INC. 2016
RENTAL SUPPLEMENT
• (y<?;, SUPPLEMENT NUMBER 1 MASTER AGREEMENT NUMBER HAR 2041
TO MASTER RENTAL AGREEMENT dated MAR. 21, 1997 TRANSACTION NUMBER -HAR 2042
Made this 21 day of MARCH 19 97 between FORKLIFTS, INC. with principal offices at
3925 TRINDLE RD., CAMP HILL, PA 17011 (herein called "LESSOR'),
(svral (cm isur (ZIP)
and S PRORCORPORATION with principal offices at (1302 Slate Hill Road, Bldg #
Camp Hill PA 17011 (herein called "LESSEE').
Ic" (Stae) far)
STATEMENT OF PURPOSE
This Rental Supplement Is entered Into pursuant to the terms of a Master Rental Agreement between the parties hereto. which' Agreement Is hereby
Incorporated by reference In this Rental Supplement.
In•consldaration of mutual promises heroin contained, LESSOR and LESSEE agree as follows:
t. ,TERM OF RENTAL '
The term of rental of each unit Included In this Rental Supplement shall comn.Tcq.N'IUlt lh g delivery thereof and unless sooner terminated as
provided In the Master Rental Agreement, shall continuo for a period of GU 1`1Od1,fS
2. LOCATION
The units shall be located at and shall be used In LESSEE'S department as Indicated in the attached Survey Report.
I SURVEY REPORT
The minimum monthly rental charges =ad In Section 4 hereof have been calculated on the basis of Information supplied by LESSEE and data
developed by LESSOR as sot forth In Survey Report dated which Is hereby accepted by LESSEE and Is attached
.hereto and made a pan hereof.
4. SCHEDULE OF EQUIPMENT
LESSOR hereby rents to LESSEE and LESSEE hereby hires from LESSOR, the following units, subject to the rentals, farms and conditions herein
contained: '
Minimum Estimated
Monthly Rental Fair Market
'Qty Description Per Unit 'Value
1 EA. NEW CLARK ESMII-15S FORKLIFT (36V) § 499.00 9 1,735.00
188" TRIPLE STAGE UPRIGHT
48" LOAD BACKREST, 42" STANDARD PALLET FORKS
SIDE SHIFTER, COLD STORAGE PACKAGE W/ HEATER
AMBER'STROBE LIGHT, TWO HEADLIGHTS, BACK-UP ALARM
1 EA. DEKA INDUSTRIAL 'BATTERY MODEL 1BD125-11
1 EA. DEKA•INDUSTRIAL CHARGER MODEL 18C3-750
"ACCOUNT MUST REMAIN UNDER THIRTY (30) DAYS"
Where battery powered equipment Is rented, any additional batteries and chargers other than that provided above and Included In the minimum
monthly rental per unit shall be rented from LESSOR at the safe cost and expense of LESSEE.
The parties hereto ha" caused this Retool Supplement (INCLUDING THE TERMS AND CONDITIONS CONTAINED ON THE REVERSE SIDE HEREOF)
to be execulad by their duty' oulhort urd representative as of the day and year first above moo0oned.
S 13RO CORPORATION
(RORRPRIR ' LESSEE LESSOR
1 L64,9:5
By y f-? R _ By
T1Ue T1tie
caae0a (nE5) Ores
01/07/98 WED 10:42 FAX 717 709 0125 FORKLIFTS.INC,
0 005
S. FAIR MARKET.VALUE OF UNITS AT EXPIRATION
5.1 The monthly rent for cash unit has boon calculated on the basis that LESSEE will oxercise such a degree of wro of each unit, that each
unit will have a fair market value at the expiration of the term of the lease of that unit, equal to the estimated lair market valueat lease expiration
stated In Section 4 hersof. Accordingly, LESSOR shall determine the actual fair market value of each unit upon the eavplrst on of the term of
lease thereof by obtaining appraisals from at least three disinterested parties who must be in the business of buying And selling equipment of
this typo. The appraiserswill be'Instructed to apprulse the unit at its wholesale disposal value to a willing buyer In Its than condition on an as-is,
whorols basis. The highest appraisal shall constitute the actual fair market value of the unit at the expiration of the lease. '
52 If the actual fair market value of the unit as so determined Is more than the estimated fair market value of the unit as set forth In Section
4 hereol, LESSOR will within ten (10) days after such determination pay such excess to LESSEE. If such actual fair market value Is less than
the estimated fair market value, LESSEE will pay any deficiency to LESSOR within ton 00), days after receipt of LESSOR'S Irndce therefor.
a MAINTENANCE AND CARE OF •EQUIPMENT
W Ohligalions.of LESSOR-LESSOR will Inspect the equipment periodically and will furnish to LESSEE a report after each Inspection on the
condition of- each unit of equipment and any repair work that may be required.
6.2 Obligations of LESSEE- LESSEE agrees to perform. at Its own cost and expense per0perator's Manual supplied by the Manufacturer, all
maintenance, service and repair (including both labor and materials) of each unit of equipment including, but not limited to:
(a) Daly maintenanco such as; n making of a routine check of.each unit of equipment at the beginning of each shin; (II) supplying all necessary
fuel (gasoline, electric curers or LP Oas), and whore battery powered equipment 1s leased, maintaining the proper level of fluid In the batteries,
properly mcharging the batteries and installing devices necessary to effectuate such recharging; (Iii) supplying all replacement oil and fluid; and
Qv) where applicablg checking the oil lavel in the crankcase and coolant in the cooling system daily and checking the air pressure of pneumatic tires.
(b) Preventive maintenance service,
(e) Repairing, overhauling or adjusting of drive lino, drive axle, upright, steering gear, steering axle, hydraulic system, brakes, paver steering
components, chains, and on internal combustion powered equipment the engine, angineaccossodes, belts and transmissions; and on battery
powered equipment the electric drive and pump motors and controls,-and all other routine repair work required to keep the equipment in good
operating condition.
(d) Repairing, overhauling or ad)ustng of battery and charging aqulpmont where battery powered equipment Is rented.
(e) Roplacing or repairing of tires.
(Q Repairs that may be required If any unit of equipment is damaged or any part or component thereof falls as the result of overloading or
abusivo.or other Improper usage.
(g) .Repairs that-may be required as delarmined by LESSOR during Its periodic Inspection and report to LESSEE.
,AS, lt.LESSOR;:during fig periodic Inspection determines that LESSEE has failed to perform lie obligalims as set forth above, LESSOR shall
give LESSEE written notice thereof. Unless LESSEE performs such obligations within thirty (30) days from data of notice, LESSOR reserves
the right, but shall not be obligated, to perform the maintenance service and repairs required to be perfornad by LESSEE undorthis Agreement
and LESSEE agrees to pay LESSOR an amount equal to the cum LESSOR normally charges Its customers for similar services.
7. THEFT OR DESTRUGITON
If any unit is stolen or disappears or Is damaged to the extem.that It Is Impossible to place it back in the same condition as when received (ordinary
wear and tear excepted), LESSEE agrees to reimburse LESSOR Immediately for the loss of such unit by paying LESSOR an amount equal to
tha then unpaid balance of aggregate rental for such unit plun the estimated fair market value at expiration for such unit as shown In Section
5 heraol Upon receipt of such payment, LESSOR will assign title to the unit to LESSEE ON AN AS-IS WHERE-IS BASIS WITH NO IMPLIED
WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
B. WARRANTY
LESSOR will deliver to LESSEE the factory war(anty,for.each now unit to enable LESSEE to obtain customary warranty service furnished on
such unite. Other than delivering said lactorywam%*, LESSOR makes no representations, promises, sfatemonb or warranties, express or implied,
unless endorsed hereon In writing, AND THERE ARE NO IMPLIED WARRANTIES OF MERCHANTABILITY OR OF FITNESS FOR A PARTICULAR
PURPOSE. IN NO EVENT SHALL LESSOR BE RESPONSIBLE FOR SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES.
623006 (RES) 995
.
Exhibit B
11/22/99 09:56 FAX 7179188727 FORKLIFM INC. 1010
NOTE AND SECURITY AGREEMENT, D1Ud_1La3n ,Id ?l2 x81L0 n[rrkJ O,ue u:nnrlll.+uc.n Nr+l..mf:•n
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NOTICETO CO-SIGNER
You lire belne asked to Ruaanlee Ih4 debt. Tldnk dereffuBy before You do. If the Burrower docmI pay tire debt, you .1111u
Be sure you tan afford to pay if you have $G rand that you want to accept fills responsibility.
You may have to PAY up to The full amount of the debt If the Borrower don not pay. You may also have to pay Ia. h
albet(on may which I..mle Ohl. amount.
It.. Creditor tan coll.[ Thl, dell from you Pat f %I try nt to collect (rain Gal Borrow". The Creditor can uw list
eollcelinn mrmod, gdntt you that nn be uold beetWt ale Borrower. sort, n..inns Yen, tie. If Ibll debt I, aver In drraull, tba
may bautneb part orymrr crMll re.cord• .. . .
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11/22/99 08:57 RAC 7179188727
GORKLIITS•INC.
ADDITIONAL TNdI[
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Q011
Exhibit C
.01/07/88 WED 10:42 M 717 783 0125 FORKLIFTS,INC. f?J 006
MASTER RENTAL AGREEMENT 1 '
MASTER AGREEMENT NUMBER HAR 2047 ! ,
Made this 1 day of MARCH 19_4.Z_ between FnRK1.TPT5, 71rC
with principal offices at 3925 TRTNnf.. RD. CAMP ym. PA
17n1 T
P? ICf tin
>wl
(herein called "LESSOR"), and S PRO COMIRATTON (RmIRRRIR STRnMRni T with principal
offices at 1302 -Slate Hill Road, MrIg'93
yW,q
Camp Hill PA 17011 (herein called."LESSEE").
wn I>+yn mat
STATEMENT OF PURPOSE
LESSOR and LESSEE expect that LESSEE may, during the term of this Agreement, wish to rent equipment from
LESSOR and may wish to provide for the maintenance of such equipment by LESSOR to the extent described
in the Rental Supplement (herein tailed "Rental Supplement"). Such equipment Is hereinafter referred to collectively
as "equipment" or separately as "unit" or "units". The purpose of this Agreement is to establish a procedure
for entering into rental agreements during the term hereof and to establish the terms and conditions applicable
to such rental agreements.
in consideration of the mutual promises herein contained, LESSOR and LESSEE agree as follows:
RENTAL SUPPLEMENTS
When LESSOR and LESSEE agree to rent equipment pursuant to this Agreement, they shall execute a Rental
Supplement selling forth:
(a) Ouantity and description of units
(b) Term of rental for each unit
(o) Minimum monthly rental for each unit
..(d) Hourly charge for each unit, if applicable
(s) Scope of maintenance to be provided by LESSOR for each unit
(f) Estimated fair market value, if applicable.
The. Rental Supplement shall constitute.the rental of the units listed therein and all of the terms and conditions
of this Agreement shall automatically' be Incorporated by reference in the Rental Supplement.
2. TERM
2.1 When units are delivered to LESSEE, LESSOR will prepare and send to LESSEE, a Notice of Delivery form
which shall set forth separately for each unit the following information: description (including serial number), delivery
date, expiration date, freight and any applicable sales and use tax.
2.2 The term of rental of any unit of equipment shall commence on the delivery date shown In the Notice of
Delivery form and expire on the expiration date shown in such form. The original term shall be extended automatically
from month to month at the same minimum monthly rental and applicable hourly charge, unless and until either
of the parties gives notice to the other of an intention to terminate such rental at least sixty (60) days prior to the
expiration of the original term or at least thirty (30) days prior to the expiration of any extended term.
3. PAYMENT OF RENT
3.1. Rent for the units shall be payable monthly commencing on the first day of the month following the month
of delivery and on the first day of each successive month thereafter until the aggregate minimum rental has been
paid. Each such monthly rental payment shall be in an amount equal to the minimum monthly rental charge shown
in the applicable Rental Supplement, In addition to the aggregate minimum monthly rental, LESSEE will also pay
any applicable hourly charge as may be provided in the applicable Rental Supplement within ten (10) days after
receipt of LESSOR'S invoice therefor. The minimum monthly rental charge shall be paid tbtW=E}ftfkt131XHNtlIFSdi
tY?t16'ht)?si??tfr?d(J6Y?d4Ht(?(Akk'iSifXbffif43?IXxYd+Xat]t;YiLN7C?rlt4t1ttt91KBSSCfEX8Ef801t0]7NU031)D
d!M% Any applicable hourly charge shall be paid to LESSOR at the address stated on the Rental Supplement.
FORKLIFTS, INC., 3925 TRINDLE RD,,.CAMP HILL, PA 17011. '
ir...i
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67364 05
01/07/08 WED 10:42 FAX 717 785 0125 FORKLIFTS.INC.
la 007
If any minimum monthly rental charge or applicable hourly charge is paid subsequent to Its due date, such payment
whenever made, may bear a delinquency charge, at the option of LESSOR, calculated at the rate of 189b per
annum from the due date to the date on which such installment is actually paid, provided that such a delinquency
charge is not prohibited by law, otherwise at the highest rate LESSEE can legally obligate Itself to pay and/or
LESSOR can legally collect. LESSEE'S obligation to pay rent and other amounts payable Tiereunder shall be
absolute and unconditional and shall not be affecled by any offset, defense, counterclaim or occurrence whatsoever.
Inciuding.but not limited to any defect or failure of performance of the equipment or any Interruption or cessation
In the use or possession of the equipment by LESSEE.
3.2 Any applicable hourly charge will be based on the hours of use of a unit as determined by the Hobbs Hour
Meter or other mechanical device used to record hours of use supplied with each unit (herein called "hour meter").
Readings of the hour meter will be taken by LESSOR AND CHARGES WILL BE BILLED BY LESSOR. It any hour
meter on any unit fails to function,. thereby rendering an hour meter reading unavailable for such unit, the hours
of use of that unit shall be ascertained by computing the average number of hours per month that the unit
was used during the previous three (3) months of recorded use (or In case such previous period of recorded use
shall be less than three (3) months, than during such lesser period) and multiplying the monthly average so
computed by the number of months, or fractions thereof,'during which said hour meter for such unit shall have
failed to function. LESSEE agrees to pay said hourly charges within ten (10) days from the date of LESSOR'S
Invoices therefor.
4. DELIVERY, USE AND RETURN
4.1 Upon LESSEE'S acceptance of the delivery of the equipment, the equipment shall be conclusively presumed
to be in good and serviceable condition and fully satisfactory to LESSEE. All costs related to the delivery of the
Equipment to the LESSEE shall be the sole responsibility of the LESSEE.
.4.2 All equipment rented'hereunder is rented f.o.b., LESSOR'S facility, and will be kept and used at the place
and for the purpose set forth 16 the Rental Supplement. LESSEE agrees not to remove any of the equipment to
any other place without the prior written consent of LESSOR.
4.3 Upon -the expiration of the original term or any extension thereof, or upon the sooner termination of this
Agreement, LESSEE will return each unit of equipment, at LESSEE'S expense, to LESSOR'S facility as set forth
in the Rental Supplement. The unit shall be returned complete and running without any missing or broken
components or accessories.
4.4 LESSOR will endeavor to effect delivery by the delivery date requested, but it assumes no liability for special
or consequential damages occasioned by failure to make delivery on such date.
51 TEMPORARY EQUIPMENT
LESSOR may, bulls not obligated to, supply temporary equipment to LESSEE for LESSEE'S use pending delivery
of the equipment described In any Rental Supplement, If any such temporary equipment is supplied to LESSEE,
each unit shall be subject to all of the provisions of this Agreement, including the payment of minimum monthly
rental and applicable hourly charge at the rate established in the Rental Supplement for the unit for which it is
in temporary substitution.
6. CARE OF EQUIPMENT
6.1 LESSEE agrees to take good care of the equipment in the use, maintenance and storage thereof, and without
limiting the foregoing, to keep equipment In a covered area when not In use, to keep equipment clean, to use
and operate equipment within Its rated capacity, to restrict the use and operation thereof to safe, careful and
competent personnel selected, employed and controlled by LESSEE, to assure that equipment is operated with
a driver's overhead guard and load back rest extension -installed except when operating conditions prevent their
use, to prohibit anyone other than persons satisfactory to LESSOR from making any repairs or adjustments to
the equipment: to'use the equipment only In the manner described in the Survey Report; and to notity LESSOR
Immediately of any accident affecting the equipment, setting forth all relevant facts, and thereafter promptly to
furnish LESSOR in writing all information required by LESSOR in connection therewith. LESSEE shall be liable
for any and all loss or damage to the equipment due to Its failure to observe any of the foregoing.
6.2 LESSEE shall not, without written approval of LESSOR, affix or install any accessory, attachment or other
device to any equipment, and all repairs, replacements, parts, supplies, accessories, attachments and devices
furnished or affixed to such equipment shall thereupon, unless otherwise agreed In writing, become the property
of LESSOR.
6.3 If any unit of equipment Is damaged or any part or component thereof fails as the result of overloading or
abuse or other.improper usage, LESSEE agrees to pay promptly, on receipt of Invoices from LESSOR, all costs
and expenses incurred by LESSOR in connection with repairing the equipment so damaged, Including but not
limited to the cost of replacement equipment.
6230" 6n15 2
01/07/98 WED 10:49 FAE 717 703 0125 FORKLIFTS, INC.
0 008
7. MAINTENANCE
*The respective responsibilities of LESSOR and LESSEE for maintenance of each unit of equipment will be as
described In the Rental Supplement covering that unit.
8. TAXES
9.
10.
11.
623004 ere.
LESSEE shall be liable for and shall pay or reimburse LESSOR for any and all taxes, fees or assessments, however,
designated, levied or based, upon the rentals, this Agreement, the equipment, the transfer, use, possession or
operation of the equipment, or any combination of the foregoing, whether the same be payable by or assessed
to LESSOR or LESSEE, including but not limited to personal property taxes, gross receipts taxes, privilege taxes,
excise taxes, license taxes, and sales and use LESSOR. LESSEE shall give immediate notice to LESSOR of any attaichm nt, lien, tax notice or inquiry from
taxing authorities concerning the taxes, fees or assessment, referred to herein. Ali such taxes, fees ortasse smen sf
shall, at LESSOR'S option, either be paid directly by LESSEE to the appropriate taxing authority or agency or
be paid to LESSOR. 11 required by LESSOR, LESSEE agrees to prepare on behalf of LESSOR, In form satisfactory
to LESSOR, all requested tax returns and reports concerning the equipment, to file such returns and reports with
the appropriate governmental agency on or before the due dates thereof, and to mail a copy thereof to LESSOR
concurrently with such filing. It provided In the applicable Supplement, LESSEE shall pay such taxes to LESSOR
as a part of Its periodic rent payment. The amount which Is included in the periodic rent payment for taxes, as
set forth in the Rental Supplement may be increased or decreased from time to time upon written notice from
LESSOR to LESSEE in order to reflect changes, additions or corrections to applicable taxes and tax rates:
provided, however, that the failure to so notify the LESSEE or a delay in giving such notice shall not affect the
liability of the LESSEE to pay or reimburse LESSOR for such taxes and any increases, changes, additions or
corrections theroto,
DISCLAIMER OF WARRANTY AND LIMITATION OF DAMAGES
UNLESS SPECIFICALLY PROVIDED IN THIS AGREEMENT, LESSOR MAKES NO REPRESENTATIONS,
PROMISES, STATEMENTS OR WARRANTIES, EXPRESS OR IMPLIED, WITH RESPECTTOTHE CONDITION,
QUALITY OR DURABILITY OFTHE EQUIPMENT. WITHOUT LIMITING THE GENERALITYOFTHE FOREGOING,
THERE ARE NO IMPLIED WARRANTIES OF MERCHANTABILITY OR OF FITNESS FOR A PARTICULAR
PURPOSE. LESSOR SHALL NOT BE LIABLE FOR ANY' INCIDENTAL, SPECIAL OR CONSEQUENTIAL
DAMAGES, INCLUDING BUT NOT LIMITED TO ANY LIABILITY, CLAIM, LOSS, DAMAGE OR EXPENSE CAUSED
DIRECTLY OR INDIRECTLY BY THE EQUIPMENT, OR ANY DEFICIENCY OR DEFECTTHEREIN, OR BY THE
USE, MAINTENANCE, REPAIR OR SERVICE THEREOF, OR BY THE INABILITY TO USE THE EQUIPMENT
AND ANY LOSS OF BUSINESS OR PROFITS RELATED THERETO,
LIABILITY AND INSURANCE
10.1 LESSEE assumes all risk and liability arising from LESSEE'S possession, use and operation of each unit
from the moment of delivery to LESSEE to the moment of return to LESSOR and agrees to Indemnify and hold
LESSOR harmless from any and all the following, whether the same be actual or alleged unless directly caused
by LESSOR'S negligence; all loss, damage, claims, suits, taxes, liens, penalties, fines, liability and expense
(including reasonable attorneys' fees) howsoever arising or incurred because of such
of equipment including, but not limited to, damages or injuries or death to persons r Injury touordest uctioniof
property, claims and liens for storage, labor and materials and all loss of and damage to equipment.
10.2 LESSEE shall provide and pay for all risk insurance against physical loss or damage to units in an amount
equal to the full insurable value of the equipment, and such policies shall name LESSOR and Its assigns
loss payee.
10.3 LESSEE shall also provide and pay for public liability insurance, including contractual liability for bodily injury
and property damage caused by, or arising out of, LESSEE'S possession, use, and operation of units. The minimum
limits for such insurance shall be not less than One Million Dollars
Injury and property damage. Such policies shall name LESSOR andlitts00a signs as additionaliInsluredsrbadily
10.4 LESSEE shall furnish LESSOR with certificates of Insurance evidencing such coverages which shall provide
for thirty (30) days priorwritten notice by registered mail to LESSOR of any cancellation or change reducing coverage.
The insurance so provided shall be effective during the period from the moment of delivery of each unit to LESSEE
until the moment of return or surrender of possession to LESSOR or his authorized representative.
DELAYS
LESSOR shall not be liable for delays In furnishing equipment. LESSOR shall not Incur any liability to LESSEE,
nor shall this Agreement be cancellable, for LESSOR'S failure to repair any disabled equipment or to supply any
equipment in substitution for equipment disabled, if prevented by wars, fires, strikes or other labor disputes,
12.
13'.
14.
15.
01/07/98 WED 10:44 FAX 717 783 0125
FORRLIFTS,INC. 121009
accidents, Acts of God, governmental regulations or Interference, shortages of labor or materials, delays in
transportation, non-availabilityofsame from the manufacturer, orolher causes beyond LESSOR'S control. LESSEE
shall not be liable to LESSOR for the rental charges herein specified for such equipment as LESSOR Is unable
to maintain in operating condition or to have available for LESSEE. In no event shall LESSOR be liable for special
or consequential damages whatsoever or howsoever caused.
DEFAULT
Any one or more of the following shall constitute an event of default:
12.1 Failure by LESSEE to pay any Installment of rent or any other amount•payable to LESSOR hereunder within
ten (10) days after the due date thereof: or
12.2 Failure by LESSEE to perform any other provision of this Agreement, If such failure shall continue for a period
of thirty (30) days after written notice thereof by LESSOR to LESSEE; or
12.3' Inslitutton of a proceeding in reorganization, bankruptcy or insolvency by or against LESSEE or Its properly
in any court, which proceeding remains not dismissed for a period of thirty (30) days, or the application for, or
consent to by LESSEE of, any assignment for creditors or other reorganization or creditor agreement, either with
or without court action- or
12.4 The making or permitting by LESSEE of any unauthorized use, assignment or transfer of a unit of equipment.
REMEDIES
If an event of default occurs, LESSOR MAY:
13.1 'Proceed by appropriate court action creations, either at law or in equity, to eplorce performance by LESSEE
of the applicable covenants and terms of this Agreement or to recover damages for the breach of such covenants
and terms hereof; or
13.2 By notice in writing to LESSEE, terminate this Agreement as to all or any of the units of equipment, whereupon
all right and interest of LESSEE to, or in the use of, said units of equipment shall absolutely cease and terminate
as though this Agreement had never been made. LESSEE shall deliver the units of equipment to LESSOR'S facility
set forth in the Rental Supplement and, without relieving LESSEE of such obligations, LESSOR may, directly or
by its agents, enter upon the premises of LESSEE or other premises where any of the said units of equipment
may be and, without breaching the peace, take possession thereof and henceforth hold, possess and enjoy the
same free from any right of LESSEE or its successors or assigns, including any receiver, trustee In bankruptcy LESSE
or creditor
or use
said uni;s of equipment for any neverthelessf h ve theEright todretain all prior rental payments hereunder, and purposes t recoverr whatever; bLESSEE any and
all amounts Including rents which, under the terms of this Agreement, may be then due and be unpaid hereunder, ensation
e use of
said as shalpb exp nd dhor incurred In thets of
seizu ei orf said units of equipment or in for attomeys'fees and such enforcement of any right or expenses
hereunder or in'any consultation or action in such connection.
13.3 If this Agreement is terminated under Section 13.2 above, in view of the specialized nature of the equipment
covered hereby, the planning and forecasting by LESSOR of Its facilities, Investment and Interest costs over the
term of this Agreement, and the computation of rental charges hereunder being based upon LESSEE'S business
and type of operations, among other factors, it Is agreed that the actual amount of damages resulting from a default
under this Agreement by LESSEE would be difficult, if not Impossible, to ascertain. Therefore, LESSEE agrees .
to pay LESSOR at LESSOR'S option, not as a penalty, but as and for liquidated damages, an amount equal to
thirty percent (30%) of the aggregate minimum monthly rental charges for the unexpired portion of the term of
this Agreement.
13.4 The remedies provided by this Agreement in favor of LESSOR shall not be deemed exclusive, but shall be
cumulative and shall be in addition to all other remedies in LESSOR'S favor existing at law or in equity.
OWNERSHIP
It is expressly understood and agreecithat this is a contract of rental only and LESSEE does not acquire title to
any equipment, unless set forth In the applicable Rental Supplement, LESSEE has no right or option to purchase
the equipment upon expiration of, or' at any time during, the term of rental.
ASSIGNMENT
15.1 LESSEE shall not assign, mortgage or encumber this Agreement or any units rented hereunder nor sublet
or suffer or permit any unit to be used by others without the prior written consent of LESSOR and Associates
Commercial Corporation. LESSOR may assign, mortgage or otherwise encumber this Agreement and LESSOR'S'
right, title and interest in and to all or any of the equipment. LESSEE agrees to recognize any such assignment
and hereby waiv6s notice thereof.
6730& 6106 '
4
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f9ED 10:44 FAX 717 763 0125
FORKLIFTS. INC. la010
15.2 LESSOR Intends and shall have the right, to assign its right to enter Into Rental Supplements and rent units
to LESSEE hereunder to the nearest authorized dealer servicing LESSEE'S place of use of such units. When
such an assignment Is made, said authorized dealer shall be named as the LESSOR in the Rental Supplement
and, in such event, the word LESSOR shall be understood as referring, for purposes of that Rental Supplement,
solely to such assignee: Aplament
16. MISCELLANEOUS
16.1 Each Rental Supplement shall be construed in accordance with the laws of the state shown as the place
of use of the equipment in such Rental Supplement.
16.2 Any provision of this Agreement prohibited by applicable taw shall be Ineffective to the extent of such'prohibition
only, without invalidating the remaining provisions hereof.
16.3 The failure of either party to require strict performance of any provision shall not diminish that party's right
thereafter to require strict performance of any
adeficiencyofanysuch provision shall notopeteasiniorco stituthe waiver art of a ? default or
default or deficiency of the same or any other provision.
teawaiverbofainysubsequ ntlyorccurringbrreach,
16.4 All notices relating to this Agreement shall be In writing and shall be mailed registered or certified mail, return
receipt requested, to LESSOR or LESSEE at the address set forth in the first paragraph hereof or at such other
address as m ay h ereafter be Of esignated. All such notices shall be deemed effective an the date so mailed,
p aarties ement
6 6 ri This Agre,and the other docu in ents referencetl therein constitute the entire agreement between the
and any change or modification thereto must be in writing and signed by the parties hereto. .
IN WITNESS WHEREOF, the patties have caused this A reement to be execu t d
an original, by their duly authorized officers as of the day and year first above written.
ed in uplicate, each of which shall constitute
Witness or Attest;
Witness or Attest:
FORKLI S C.
LE SOR
Sy_ r ,. s .
Title A
S PPO CORPORAT(ROHRER'S ROME
QEE Ey
a;z?
Title
e23M eics
Exhibit D
li:ldebbie\dprlagU\rohrifs.apsl3-27-98
ASSET PURCHASE AGREEMENT
TEIIS AGREEMENT, dated this day of March,1998, by and between S-PRO
1 CORPORATION Va Rohrces Stromboli, a Pennsylvania business corporation ("ScIler )
AND
IFS, LTD. or its nominee ("Buyee).
BACKGROUND
feller is a Pennsylvania business corporation, and is engaged in a Chapter 11 bankruptcy
proceeding, at Case No. 1-98-00387RJW (the "Case) filed with the United States Bankruptcy
f'.rurt for the Middle District of Pemtsylvania (the "Court's; and
Seller is engaged in the business of preparing and manufacturing strombolis and related
products.
Subject to the terms and conditions contained herein, Seller has agreed to sell to Buyer,
m,d Buyer has agreed to purchase all of the assets of Seller.
NOW, THEREFORE, in consideration of the promises and the mutual covenants herein
c.. -stained, the parties hereto, intending to be legally bound hereby, agree as follows:
ARTICLE I
SALE AND TRANSFER OF ASSETS
Section 1.1 sat and Purchase of Assets - At the Closing, definedhatin at Section
3 1, pursuant to the terms and subject to the conditions set forth in this Agreement, Seller 6211
sell, transfer, convey and assign to Buyer, and Buyer shall purchase and acquire from Seller, all
u- Seller's properties and busintss as a going concern and good will and assets of every kind,
n..ture and description existing on the date of Closing, wherever such assets arc located and
w• tether real, personal or mixcd, tangible or intangible, and whether or not any of such assets
h.: ve any value for accounting purposes or are carried or reflected on or specifically referred to in
it: books or financial stztcrawts, except those assets specifically excluded pursuant to Section
1 !below. The properties and assets of Seller to be transferred hereunder (together, the
ssets' j shall include, without limitation, the following:
A. all of Seller's right under, in and to leases for real and personal
pi rperty. and all of the Seller's rights u n all other leases, subleases and other instrursrents (the
"1 eases");
• ^??••••,",?„?;uuuucuv.apsu-ti-yes
B. all of Seller's good will and rights, title and interest under, in and to
n t trade names, trademarks, fictitious names and service marks or any variant of any of them, and
any applications therefor or registrations thereof, and any other forms of intellectual property or
industrial property rights, including any patents, copyrights, trade secrtts or proprietary
manufacturing process;
C. all of Seller's machinery and equipment (a list of which is set forth
ar Exhibit "A" hereto), office equipment (a list of which is set forth at Exhibit "A"), furniture (a
list of which is set forth at Exhibit "A" hereto), tools, supplies, inventories (including all work in
process, pepperoni, Stromboli dough, cheese and other related food stuffs), goods, chattels and
other tangible property and fixtures;
D. the prepaid experses of Seller pertaining to Seller's operations and
as isting on the Closing Dace (the "prepaid E)Cpenses');
E. all of Seller's cash, bank deposits, security deposits, safe deposit
not contents, cash accounts, accounts receivable, securities, notes, instruments, documents,
orders, contracts and contract rights, general intangibles, ehoses in actions, tax refunds and
insurance premium rebates;
F. all of the Seller's right, tide and interest to any and all
t mprovetnenu to real property leased by the Seller under the L=cs, to the extent of any such
interests; and
G. all of Seller's records pertaining to the Assets and to Seller's
operations on the premises or necessary in connection with the ownership and future operation of
the Assets, including all historical operating records of such operations, all records regarding the
equipment and facilities included in the Assets (collectively the "Records"), subject to the right
of Seller to review such Records, including, but not limited to, for such purposes as are necessary
in connection with the Case.
Section 1.2 Cale Ar*cc- of 1=Trr? t Sly7l1lQS :i _ In addition to the Assets, Seller
owns two (2) additional pieces of equipment-a dicer and an Adco Cartoner. Both the dicer and
the kdco Cartoner arc subject to a purchase money security interest in favor of the Capital
Region Economic Development Corporation ("CREDC')..Buyer shall purchase the dicer and
Adco Cartoner at Closing if Buyer can atrartge for an assumption of the CREDO debt in an
aninunt and under terms satisfactory to Buyer.
Section 1.3 Ez&i dCd n .re _ Sella shall retain and the Assets shall not include the
+l.llowing assets
lyrcernent A. the consideration to be delivered to Seller pursuant to this
.
2
?Un114 LC1 Druu114 ricuLCn uyu JAG uv?y .u..r•a.r "?
h:\debbie\dpr\agts\rohrifs.apsl3-30-yx '
B. Seller's minute book, stock book and seal; and
C. all avoidance actions pursuant to 1 I U.S.C. §§544-553.
Section 1.4 Liabilities - Buyer shall not assume any liabilities, debts or obligations of
Seller or any liabilities, debts or obligations relating to or arising from the Assets or Seller's
operations, except for certain expenses incurred in connection with the sale under this Agreement
as set forth in Section 4.2 hereof. Arithout limiting the foregoing, Buyer shall not assume any of
Seller's liabilities, debts or obligations under or in connection with (i) any employment or labor
agreements, (ii) any pension, welfare, compensation or other employee benefit plans, (iii) the
cessation of Seller's operations, dismissal of employees, or termination of employment or labor
agreements or pension, welfare, compensation or other benefit plans, or (iv) workers
compensation or occupational disease claims.
Section 1.5 Purchase Price - In full consideration for the transfer of the Assets by
Seller to Buyer, the Buyer shall pay to the Seller the amount of Two Hundred Fifty Thousand
Dollars (S250,000.00) ("Purchase Price') at the Closing, in immediately available funds.
ARTICLE II
REPRESENTATIONS AND WARRANTIES
Section 2.1 Representations and Warranties of Seller - Seller hereby represents and
warrants to the Buyer-
A- Seller is a corporation duly organized, validly existing and in good
standing under the laws of the Commonwealth of Pennsylvania, and has, subject to the approval
by the United States Bankruptcy Court for the Middle District of Pennsylvania, the full right,
capacity, power and authority to enter into, execute and deliver the Agreement and any
agreements or imsu-u eats contemplated herein and to take any and all actions to carry out and
perform his obligations hereunder,
B. Seller has, subject to the approval by the Court, authority to convey
to Buyer title to the Assets free and clear of all liens and encumbrances in accordance with 11
U.S.C. 363(f) and, upon the Closing, Buyer shall have such title to the Assets;
C. The execution, delivery and performance of the Agreement by
Seller and the consummation of the transactions contemplated hereby shall be, prior to the
Closing Date, authorized and approved by the Court. The Agreement represents the valid and
enforceable obligations of Seller and the making of the Agreement and any instruments, deeds,
bills of sale or other agreements by Seller pursuant hereto, and the consummation of the
transactions contemplated hereby, do not and will not result in the creation of any lien upon the
Assets and do not and will not conflict with any provisions of the United States Bankruptcy Code
or result in a breach of any provision of or constitute a default under any agreement, instrument,
3
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J
I..rI1 WDN UV WIY.VtIJ Y'Ir/-JY
arbitration award orjudgrnent, order or decree to which Seller is a party or bound or by which the
Assets arc bound:
D. To the knowledge of Seller, there exists no pending or threatened
changes in the zoning or building ordinances affecting the real estate at which Seller operates;
E. To the knowledge of Seller, there exists no pending or threatened
change iri the tax assessments affecting the teal estate at which Seller operates, which would
result in an increase in the real estate taxes on such real estate;
F. Seller has not made any agreement or taken any other action which
might cause anyone to become entitled to a broker's fee or commission as a result of the
transaction contemplated hereunder;
G. No representation or warranty by Seller in this Agreement, nor any
document or certificate delivered to Buyer pursuant to the Agreement, contains or shall contain
any untrue statement of a material fact or omits or shall omit to state a material fact necessary to
make the statements contained herein or therein;
Section 2.2 Uprtsentadom and Warranties of AtYCI - Buyer represents and warrants
to Seller as of the date hereof that:
A. Buyer is a corporation duly organized, validly existing and in good
standing under the laws of the State of Delaware;
B. Buyerhas all necessary corporate power and authority to enter into
the Agreement and to perform the obligations to be performed by it hereuoder. The execution,
delivery and performance by Buyer of the Agreement has been authorized by all necessary
corporate action, and the Agreement represents a valid and enforceable obligation trader Buyer.
The making of the Agreement and the consummation of the tramsar*otts contemplated hereby
does not and will not conflict with any provision contained in the articles of incorporation or by-
laws of Buyer, or result is a breach of any provision of or constitute a default under any material
agreement, instrument, arbitration award, judgment, order or decree to whichBuyer is a party or
bl which Buyer is bound;
C. No representation or warranty of Buyer contained in the
Agreement, nor any document or certificate delivered to Seller pursuant to the Agreement,
contains, or will contain, any untrue statement of a material fact, or fails or will fail when
delivered to state a material fact necessary in order to make the statements herein or therein
zontained not misleading;
D- Buyer acknowledges that Buyer has inspected the Assets and is
familiar with their physical condition;
4
i{
ti
E. Buyer acknowledges that Seller makes no representations or
warranties, express or implied, as to the mercharya ility, fitness for a particular purpose or
intended use, or condition or repair of the Assets included in this sale;
F. Buyer agrees that the Assets are sold hereunder "AS IS" and with
all faults;
G. After the date of Closing, Buyer assumes all risk, including
responsibility for damage to said property or for personal injury, including death arising out of
the ownership, use, handling, storage, resale or other disposition of the Assets;
H. The representations and warranties and the covenants and
agreements contained in this section shall survive the Closing Date and the delivery of
documents set forth herein.
ARTICLE III:
CLOSING
Section 3.1 1C osia9 .loc'no Day - The settlement of the transactions contemplated
hereby (the "Closing') sball&U take place on or before AprU 17, 1998, or such other date as the
parties mutually agree (the "Closing Date"), at the offices of Cunningham and Chernicoff, P.C.
located at 2320 North Second Street, Harrisburg, Pennsylvania 17106. The settlement of the
transactions contemplated hereby is referred to as the "Closing"
Section 3.2 CondWo e to Closing by Ruyer _ The obligations of Buyer are subject, in
each instance, to the rcasorable satisfaction of Buyer at or prior to the Closing of each of the
following conditions:
A• The representations and warranties made by Seller in the
Agreement shall be true and accurate in all material respects;
B. Seller shall have performed, in all material respects, all obligations
and agreements and complied, in all material respects, with all material covenants and conditions
cc•ntained in the Agreement to be performed or complied with by Seller at or prior to the Closing;
C. Buyer and Buyer's representatives shall have been afforded the
opportunity prior to the Closing Date to inspect the Assets and all books and Records associated
with Assets;
D. There shall not have been any material loss or damage to the
A::sets ro no material adverse changes in the business, assets or operations;
E. Seller shall have caused the Assets to be maintained in a manner
appropriate to preserve the condition of the Assets;
F. No investigations, suit, action or other proceeding shall be
pending, nor shall the Seller have actual notice of the pendency of any such action, before any
court or government agency, which, is reasonably likely to result in the delay, restraint,.
prohibition or the obtaining of damages or other materially adverse relief in connection with the
Agreement or the consummation of the transactions contemplated hereby;
G. Seller shall have delivered to Buyer a certified copy of a final and
unstayed Order of the Court approving the sale of the Assets upon the terms and conditions
contained in the Agreement; and
H. Seller's bneinree operations are conducted in premises located at
1302 Slate Hill Road, Building #3, Camp Hill, Pennsylvania (uRcal Estate'). The Real Estate is
presently leased to the Seller from Donald Slike (the "Lessor'). Buyees obligation to purchase
the Assets is conditioned upon Buyer's ability to negotiate with the Lessor for a lease of the Real
Estate upon terms satisfactory to the Sella.
Section 3.3 Conditions to Closing by Seller - The obligations of Seller are subject, in
each instance, to the reasonable satisfaction of Seller, at or prior to the Closing, of each of the
following conditions:
A. The representations and warranties made by Buyer in the
Agreement shall be true and accurate in all material respects.
B. Buyer shall have performed, in all material respects, all obligations
and agreem=ts and complied, in all material respects, with all material covenants and conditions
contained in the Agreement to be performed or complied with by Buyer at or prior to the Closing;
C. No investigation, suit, action or othcrproceeding shall be
tlueatcmed or pending before any court or governmental agency, which, in the reasonable opinion
of Seller's counsel. is likely to result in the delay, restraint, prohibition or the obtaining of
damages or other materially adverse relief in connection with the Agreement or the
cnsummation of transactions contemplated hereby; and
D. All proceedings to be taken in connection with the transactions
contemplated by the Agreement and all documents incident hereto shall be reasonably
iatisfactory in form and substamce to Seller.
6
"' ??VWAIIWJI& apse-u-y6
Section 3.4 Certain Obli¢ydons of Seller Prior to ?
A. Ban "r MCa Warty - ScUer has notified, or shall have
notified within such time as the Bankruptcy Court shall approve, all
the transactions contem persons entitled to notice of
plated hereunder.
B. C onducr ofljtirinerc Prnalnv C`locinP _ From and after the date
hereof and pending Closing, and unless Buyer shall otherwise consent or
covenants and agrees that Seller shall maintain the agree in writing, Seller
least as good order and condition as existed on the date this A8r??ent and other assets in ,
Seller shall continue to retain the employ business O and, same such end'
those employed by Seller as the date he ot Seller shall shall conduct
t c mplyw ith the rosbas as
ions of all
its leases. agmemenu, contracts and commitments, will obtain, maintain in full force and effect
and comply with all authorizations required under all laws in connection with their businesses or
assets, and will comply in all material respects with all laws applicable to its businesses or assets.
It is understood, however, that since February 12,1998, Buyer has been assisting the Seller with
the operation of its business pursuant to a Management Operations and Post-Petition Credit
Agreement, has been present at Seller's premises and is acquainted with the recent operations of
Seller.
C. Fillne gfMotrn? n=d C Izq a re _ From and after the date
hereof and pending Closing, and unless Buyer shall have otherwise consented or agreed in
Writing, Seller covenants and agrees that.
Agreement, and V) Seller shall fie, within five (5) days of the execution of this
satisfactory ctory to shall prosecute a Motion (the "Motion') with the Bankruptcy Buyer, to approve this Agreement and the transaction contemplated he byfonn
Order of the Court. (tt) Seller shall not withdraw or amend the Motion without an
prosecute for Bankru Gu) Seller shall not, by application or otherwise, submit or
Flaztkty [ Court approval Court approval, or support the submission or prosecution for
P cY of, any Proposal of the sale, lease or other disposition of the Assets,
or any of them other than pursuant to the transaction with Buyer set forth in the Motion, which
blution shall nonetheless provide for the solicitation of higher and better offers. In the event that
a better or higher offer for the Assets is approved by the Court, then Buyer shall receive a
Fireakup Fee (as such term is defined at Section 4.5 hereof).
D. Fv(Sllmenr n f??fee _ Seller shall cause all of the conditions
to the obligations of Buyer under Section 3.2 of this Agreement to be satisfied on orPnm
Closing, unless otherwise consented or waived in writing by the Buyer. Seller shall t the
promptly
7
'i
i.?f?r'a'Wj •-?
notify Buyer in writing of any event or fact which represents or is likely to cause a breach of any
of its representations, warranties, covenants or agreements. Seller shall promptly advise Buyer in
writing of the occurrence of any condition or development (exclusive of general economic factors
affecting business in general) of a nature that is or may be materially adverse to the business,
operations, properties, assets, prospects or conditions (fusaneial or otherwise) of Seller.
Section 3.5 erg Dr>=entn of teller -Seller shall dclivre:r to Buyer at the Closing:
A. Duly executed, all assignments, bills of sale or other instruments of
transfer of title and consents as shall be necessary to evidence or effect the conveyance,
assignment, sale, trantsfer and delivery of the Assets to the Buyer, free and clear of all liens,
except those liens spec4&ally identified by the Seller and disclosed to the Buyer and otherwise
consented to by the Buyer.
B. A certified copy of a final and tmstayed order of the Bankruptcy
C otirt confirming and approving the sale of the Assets upon the terms and conditions contained
in this Agreement.
C. An instrument providing that the transaction is final and complete
and that Buyer is released from all other and further liabilities.
D. Seller shall execute all documents reasonably required under the
Agreement or necessary to constnrmtate Closing.
Sectio-t 3.6 Bever Cio<ing ovcnan c _ At the Closing:
funk at Section 1.4A. Buyer will pay Seller, in immediately available funds, the sum set
.
B. Buyer shall execute and deliver an in<mrr aent to Seller that the
transaction is tint and complete and that the Seller is released from all other and further
liabilitici.
C. Buyer shall execute all documents required under the Agreement or
necessary to cunsimurnt . Closing
ARTICLE IV
EXPENSES, TAXES, RISK OF LOSS
Section 4.1 Transfer T ree ad Fees• Saes T r < _ All transfer taxes, fees, and sales
and use taxes, if any, payable in connection with the sale, transfer and assignment of the
purchased Assets pursuant to this A Veemertt shall be paid by Seller.
,.:tuebbteldprtagtsvottnts.apsu3=17-98
Section 4.2 - Except as otherwise provided herein, each of the parties shall
be responsible for and shell pay all of Its own expenses incurred in connection with this
Agreement and the transactions contemplated hereby, including, without limitation, all legal fees
and other expenses incident to the negotiation and preparation of this Agreement.
Notwithstanding the foregohig, if Buyer is the successful purchaser of the Assets, Buyer shall pay
up to S 15,000.00 for. (i) Seller's professional fees and the Official Unsezured-Creditors
Cornmittee's professional fees provided in connection with the sale and punchm of the Assets;
and (id) the Quarterly Fees of the U. S. Trustee's Office: for the quarter in which Closing occurs.
Of the 315,000.00, up to S 11,000.00 shall be reserved for the fees and costs of Sellers counsel,
Cunningham and Chernicoff, P.C..
Sectioa 4.3 Risk of Loss - The risk of loss, damage or destruction of or to any of the
ssets by fire. explosion, windstorm or other casualty shall remain upon Seller until the Closing.
;,ecdou 4.4 No mA Fees - Neither Seller nor Buyer has made any agreement or
t? ken any other action which might cause anyone to become entitled to a broker's fee or
commission as a result of the transaction contemplated herein.
Section 4.5 Break Up Fee - If Buyer is not the successful purchaser of the Assets
because another entity purchases the Assets for a sum greater than the Purchase Price, Buyer
shall receive from the proceeds of such sale a break up fee of Ten Thousand Dollars
(.S 10,000.00). Seller shall request authority to pay such break up fee is Seller's Motion to
approve sale of Assets required under Section 3AC.
ARTICLE V
TERMINATION
Section 5.1 Tennnation -
A. Hf den Aoreemenr May 8e Tenntnared - This Agreement may be
u:rminawd at any time prior to Closing:
(d) By mutual consent of Buyer and Seller,
(ii) By Buyer or Seller if Closing shall not have occurred prior
t(- April i 7,1998; provided that Buyer or Seller may terminate this Agreement pursuant to this
subparagraph (ii) only if Closing shall not have occatred by such date for a reason other than a
tt:iture by such party to have taken appropriate actions in good faith required of it in an effort to
;i.tisfy the conditions to Closing of the other party set faith in Section 33 or 3.4 hereof.
B. Effect ofTermtxadm - In the event of trrmimtion of this
Agreement by either Seller or Buyer, as provided above, this Agreement shall forthwith
tc: minate, and there shall be no liability on the pan of either Seller or Buyer or their respective
h ldebbieldprlagtslrohdfs.
apsk3•27-98
otlicers io directors,
te,minahon. axcept for liabilities arising from a breach of this A `
greement prior to such
ARTICLE VI
DEFAULT
Section 6.1
this Agreement. Buyer shall - "the Seller defaults in the
vaid.?ed from all Iiabili Paf°imance of the terms of
ty, and this Agreement Shall be null and
Section 6.2
this Agreement Seller shall f t llBuyer defaults in the perfamlmce of the terms of
void. from liability and this A
gcrement shall be null and
ARTICLE VII
POST CLOSING COVENANTS
Section 7.1 A ac ? R „rdc as -
Buyer shall each give to the other party and 7C - A Presontatives
After the Closing
Date, Seller and
business hours. reasonable ' records
of the otherparty, during normal
other acces
necessary to low the s LO its books , files and
audits, suits or matters of a Party to obtain information with re Personnel as may be
assets or similar nature involving such othert to any claim, demands,
operations of Seller, Patty and involving the business,
Section 7.2
such other action and execu0eMon On and after the Closing,
Party hereto from rime to tiu1e? other docuareau as may be rrrabl FAY hereto shall take
accordance with the terms rn ??e or conftm the transfer of they requested by any other Of this Agreement Assets to Buyer in
ARTICLE VIII
Section MISCELLANEOUS
Section 8.1 ,Fln'?+?yat ofRenn.
vorrantiesI c0160nants and
'nstrumegts executed in conaon ts contained in this ' All ieP+ttations,
t losing'of this herewith or delivered A8leem01 and in any agreements or
Agreement and the cotutunmauon of the Pursuant hereto, shall survive the
Section transactions contemplated hereby.
8.2 F.?rhibit_s and gctie • „
::hull be deemed to be taco i"" - The exhibits and schedules to Agreement
herein. M0?d herein by this
reference and made a
part hereof as if set out in full
10
i
i.
j
i
:1:laeootetopnagtsuratter ap"su-i /-Ya
Section 8.3 8S _ The
headings contained in this Agr=meot are included for
purposes of convenience only and shall not be considered a part of this Agreement in construing
nr interpreting any Provision hereof
Section 8.4 C.nvrl dDg T`w -This Agreement shall be governed by, and construed in
accordance with, the laws ofthe Commonwealth of Pennsylvania.
Section 8.5 Notices - All notices. requests, demands and other communications
required or permitted to be given or made under this Agreement shall be in writing and shall be
deemed to have been given on the date of delivery personally or of deposit in the United States
mail. postage prepaid, by registered or certified mail, return receipt requested, addressed as
follows or to such other person or address as eitherparty shall designate:
To Seller: S-Pm Corporation da Rob='s Stromboli
1302 Slate Hill Road
Bldg. No. 3
Camp Hill, PA 17011
With a copy to: Robert E. Chernicoff, Esquire
P. O. Box 60457
Harrisburg, PA 17106-0457
To Buyer: IFS, Ltd.
Route 183, Box 139
Summit Station, PA 17979
With a copy to: Charles J. Phillips, Esquire
Baskin Leisawitz Heller do Abramowimh, P.C.
2201 Ridgewood Road
Suite 400
Wyomissing, PA 19610
Section 8.6 cmwz= _ This Agreement may be executed by the parties in
cnunterparts..dl of v;Wch shall be deemed to constitute one agreement
Section 8.7 Asci¢nment: Bin .n¢ Amrr.. -...'jhis Agreement shall not be
assignable, in whole or in part, without the prior written consent of the other
however, that Buyer may assirti ?' provided,
Bra all or any part of its rights or responsiW lities hereunder to a
corporation controlled by Buyer upon written notice to Seller. Subject to the foregoing, this
Agreement shall be binding upon and inure to the benefit of each of the patties hereto, and their
respective successors and assigns.
11
unuavuiewpnaguuuur?u.a?i?u-i?-yo ? "' -`--•
Section 8.8 SeverabU' of Prot-= _ If any prOvWOn of this
ent or
the application thereof to any person or circtmtstancu shall to any extent be held inany
d
suche" r mvision to persons r?forceable, the remainder of this Al t, or the application of
P vision other than those to which it was held to unenforceable,
extent perm thby, and shall be valid and be enforceable invalid or
by shall lawnot. b butt affec
extent permitted only tedif anered to the extent such enforcement would not materially and
adversely $ustrate the parties, essential objectives as expressed herein.
Section 8.9 EalkCA I - This Agreement consti
agreement between the lutes th
Parties entire
contemporaneous n Pertaining to the subject matter hereof and supetsedes all prior and
Modification of this Agreeareat representations and understandings of the parties. No
Urdcr wring a by all parties hereto, and, to including the ? this Paragraph, shall urring after ?be binding unless executed in
approved by the Bankruptcy Co try of the Bank
waiver of Court
urt, if such provisions of this Agr=meat shall be deemed, or shallc nsti necessary. No waiver other of the
provision, nor shall may waiver tU1e, a waiver of any other
executed in constitute the continuing waiver. No waiver shall be
writing by the party making the waiver, binding unless
Section 8.10 JdWMM - Seller and Buyer agree that the United States
B kr pttuon aCourt for nd the Nliddle District of Pennsylvania shall retain jurisdiction o the
tcemenr ofthis Agreement ver
EOF, the
IN WITNESS Iovc written.
month and year first above w parties hereto have 1xeeuted this Agreement as of the day,
"Seller"
S-Pro CotporadOn t/a Robr+er'r Stromboli
By:
Title:
"Buyer,.
IFS, Ltd, /- `-ICJ
By: l
Leo Bloom, President
12
v
i,
j
i
MALR-2'i-It*8 14:22 BASKIN LtISaJIrZ MELLER
610 V7 6671 P.i4ois
Section 8.8 5evr-ability of provisions - If any provision of this Agreement or
the application thereof to any person or circumstances shall to any extent be held in any
proceeding to be invalid or unenforceable, the remainder of this Agreement, or the application of
such provision to persons or circumstances other than those to which it was held to be invalid or
unenforceable, shall not be affected thereby, and dull be valid and be enforceable to the fullest
extent permitted by law, but only if and to the extent such enforcement would not materially and
adversely frustrate the parties%essential objeetives as expressed hertin.
Section 8.9 p„tttir ' gt l - This Agreement constitutes the entire
agreement between the parties pertaining to the subject matter hereof and supersedes all prior and
contemporaneous agreements, representations and understandings of the parties. No
modification of this Agreement including this paragraph, shall be binding unless executed in
writing by all parties hereto, and, to the extent occurring after the entry of the Bankruptcy Court
Order, approved by the Bankruptcy Court, if such approval is necessary. No waiver of any of the
provisions of this Agreement shall be deemed, or shall constitute, a waiver of any other
provision, nor shall any waiver constitute a continuing waiver. No waiver shall be binding unless
executed in writing by the parry making the waiver.
Section 8.10 jurisdiction - Seller and Buyer agree that the United States
Bankruptcy Court for the Middle District of Pcnnsyl%ania shall retain jurisdiction over the
interpretation and enforcemew of this Agreement.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the day,
month and year first above written.
"Seller"
:-;?ro oration t/a Rolrrer's mb li
Title:
,.Btlyee.
IFS, Ltd.
By:
Leo Bloom, president
12
VC "91
d£b= t0 136-2:0 --rdt1
Exhibit E
t_- 11 /22/99 _ 09:50 FAI 7179188727 _FORK LI PI'S, INC. -
' 741 An. M9FIoeT Mid good 1391SoOk Reach Rod
Aerial Olt Dly. York • Ph 17171845-if4S
?1 _ W+chNUin6urp, IA 17633 l+neuhy PA A 1160 17Po1 ?*r%
7VI4I+mmewel, PA 17701 17101 WecNde+hmp, PA PA 17053 I++ITI717)9 9163729
HF rS INa Ph (71719104100 Ph pn1660J111 Ph 1310132645M Ph 1600) 5161070 61+1+ college - Ph (11412160503
Fu 171119164729 Fu(7IT)SM130
• Fu (STD) 3M570 ?u(717)697-0313 F+c1S7013261670
MATERIAL HANDLING INNOVATIONS SINCE 1955 !:;o_. '•, ;._
_ ,__?;;,;? ;; . •.,•,1; - , .. '-
1.
. Romit To ...... #it##it#F-0!•#kif•I1iF##•ffiNf## Tnvoice-# -----; R02521
1 Independence Avenue # RENTAL. INVOICE # Invoice-Dd'i:e--: 11/11/4999
charlicohUrg, PA 17055 t#if#3fitW5Fiiti1••Y#S(^i ###i # Page-{1 ---__._..-• 1
Account-#t ---••-•-; 005'b:i-0001
RTJHRERS STROMBOL_I/iFS LIMITED S ROHRER'S STROMBOI
1
1 1-1 T -
GLDG 1•}3
J PO BOX 3552 1 13 1302 SL.ATL HILL RD
SHIREMANSTOWN PA 17011-3552 P CAMP HILL. PA 17011
-T}
VMS NET 1I) DAPS
lesman-tk?-:09782
ip-Date --:06/24/1997
-----------
i:e -°--•-----: CLK
set-;t - :6'311600
ycrip,tion/Cummont ----
I?ental 11/11/1999 Thru
Agreement-It --•:002766 LPIT
Sell-Branch --:FORKLIFTS, INC.--MECHANICSBURG
Salesman ----- : THRONE, TIMOTHY R.
Entered-By ---.
Model •-------•- ESMTI155
Serial-,? ---•- ESM249 0080 8717
Qti,) ---- -F'riae
1 o!/ ].O/ 1999 1 1199.00
Sub-'roi:al --•--•-•----•---,
3ales-Ta4
•-J
I IIVe? c iT•-lbta l -••°-•-•----_
Amount
1199. 00
499. 00
499 UO
;®
ACCOUNTING
ii
Z
i
11/22/99 09:55 rd% 7179188727 FORKLI FrS. INC. IM008
10-jYjkl J IFTS-Na-
MATERIAL HANDLING INNOVATIONS SINCE 1955
741 kde5tod1ml Att. 759 rkri Pal Road 28905ath Reach Read Atria] Litt Div. York. Ph 17Y7)125.1115
1leetunlaburg, PA 17055 Umaeler, PA 17601 P1Whmeporl, PA 17701 9ehanlnbure, PA 17055
54&5070
Ph
800 Fax 171719181729
Stele College. Ph 1111112704501
Ph p111111 070D Ph P171560-3131
56MI36
711 Ph (5701 5 764 558
raa1S701026.0510 1
)
Fax 1717)697.653B rax157010280570
Fax IIIIIII84729 )
raa 1
Remit To {}{F{}q iFK {Fi}xii•{l i}#{}{}#•7i###
I Independence wanue {5' RENTAL INVOICE ?
ct7anicsburg, PA 17055 7FiF'}i {FP#i}AiF F Fi}i44 {F?}i # F
ROHRFRS STRDMBOLI/IFS LIMITED S
T. H T
11 PO BOX 3552 1 D
SHIREMANSTONN PA 17011-3552 P
rm; ---------:NET 10 DAYS
lcsman-t# •-:O97fl2
io-Date --:06/24/1997
ke --- ---: CLK
set-# -•--:691600
scription/Comment
REntal 10/1'/1999 Thru 11/10/1519T
Agreement-#
Bell-Branch
Salesman --
Entered--By
Model ----
Serial-# --
Sub--Total ----------- >
Sales-Tax -•-'->
Invoice--Toted --- -°--=>
ACCOUNTING
Invoice-# -----: F:0?-3990
invoice-Date--: 10/12/199c7
Page-# I
Account-ft -----:00965-0001
ROHRER'S STiROMBOLI
I7LDG #3
1302 SLATE- HILL RD
CAMP HILL-
PA 1701.1
002766 L.P 1 T
FORKLIFTS, INC. -MECI-IANICSBURB
THRONE-, TIMOTHY R.
ESMII15S
ESM249 008B 3717
Oty Price
1. 11-99.00
Amount;
499.00
499.00
499.00
_11/22/99 09:55 (7AX 7179188727 _.._..__ YORKLII'fS. INC.
Fo7m &I[FrrSINa
MATERIAL HANDLING INNOVATIONS SINCE 1955
Rornit To .......
Independence Avenue
:hanicsburg, PA 1.7055
fm 007
741 Wependeaee Ave. 751 Flory Mill Road -692 SMh Reach Paid Aerial llh Dir. Yorh• Ph 17171645.1145
Mechanlnbm0. PA 17OSS Laecnler, PA 17601 7PNamepod, PA 17701 Meehanicxbur9, PA fl05S FBI (71719186729
Ph 0111 11 "700 Ph 017156"17t Ph 15701126.7576 Ph 111001548-2070 Stale College. Ph 16141 718-05:
Fix 0171918.6729 Ha 171L15604136 ha 157017267570 N1 (71716974530 Fax 157013263570
t5 P;6;5#+r r;p;6n;r****a; *** Invoice•-41: ------: R022921
;1• RENTAL INVOICE 14 Invui.ce-Date--:09/13/1999
'A K. Pa g e-i# ^-•---•- 1
Account-i# -----:00965-0001
ROHRERS STROMBOL.I/IFS LIMITED
PO BOX 3552
S14IRE•MANSTOWN
Ills ------: NET 10 DAYS
•.esman-4# -:09702
:p--Date --:06/24/1997
S ROHRER'S STROMBOLI
H T BLDG ##3
I O 1302 SLATE HIL-L RD
P CAMP HILL. PA 17011
Agreement-##---:002766 LPIT
Sell-Rrnnch --:FORKL.IFTS, INC.--MECHANICSOURG
Salesman -----:THRONE, TIMOTHY R.
EnterLd-By -- .
:e -•-------:CI_K Model ------ -:ESMIIISS
:eL•-?#. •---•--:691600 Serial -## ------:ESM249 OOLi0 0717
scrip 'Lion/C.omment City Price
Rental 09/1211999 Th•ru 10/11/1999 1 499.00
Sub-Total
Sales-Tax
--------
:Invoice-Total
--`Amoun't
499.00
-----------
499.00
A-99. 00
ACCOUNTING
PA 17011-3552
t
_i
11/22/90- 09:54 VAX 7179188727 FOR -7
7 7411ndepeadence Ave
53 75SRory Wll Raid
1601
d 2693 South Retch Raid
1701
g7 Aeel+IllY01v.
WeehhNnhwe Pit 17055
FT&IN(I
F Wtclunlnhwv,PMT0
Ph171T19104700 p111
PhP171560460J171 32645
Ph
570 (5712MJn1
57 01 2167 510
h Ph 1(717167453
Fax 8171697.6579
w i
o ipv 1711) 9166729 Fu 17171560J176 t1
e 1
MATERIAL HANDLING INNOVATIONS SINCE 1955
.... Remit To ....... •Wr.n•ata7•?r+PtPt6itiiittt•iti6.lru•pn•
1 Independence Avenue # RENTAL INVOICE
chaniesburg, PA 17055 ##ded69titiFiid}i6i9 Slt#drdPdf66a3u•
RLIHRERS S'fR01.1BOLI/IFS LIMITED S
T VI T
O PO BOX 3552 1 0
SHIREMANSTOWN PA 17011-3552 P
rns ---•---: NET 10 DAYS
lesman-# •-:09782
ip-Date - 06/24/1997
It fa -------: CLK
set-It ----691600
9CriPt•ion/Comment
IM006
We. ph 17111675.1143
in 81719168729
Stele Ca6e9a • Ph Ilia) 276-0506
Fix 137 01 320 570
I11vo i c c-it ----: 11021902
Invoice-Date--:08/13/.1999
Page-# -------. 1
Account-0 - - 00965-0001
ROHIRER'S STRON13OLI
BLDG 03
1302 SLATE HILL RD
CAMP HILL
PA 1.7011
Agreement.-# --:002766 LPIT
Sell-Branch --:FORKLIFTS, INC.-MECHANICSBURG
Salesman -----:THROIVE, TIMOTHY R.
Entered-By --•-.
Model -------- :ESMI115S
Serial--I# -----: ESM249 COOS 8717
Rental 08/13/1999 Thru 09/11/1999
Sub-Total ------------->
Sales-Tax ------------- >
Invoice-Tota1 -------->
Qt11 Price - Amount
1-- 499.00 - -- 499. 00
499.00
---499.00
ACCOUNTING
11/22/99 09:54 MAX 7179188727 FORKLIITS,INC.
_-
@ 005
? 741 Independents Ave. 799 Flory UM Road 2893 South Retch Road Will Lift Olt. Yolk • Ph 1717184 5114 9
:
-- OOd,PA1110) McOMnInOu0, PA 17099
nury8PA 17099 17601 W P
Meo Fupf7191
_
J ?)CNG
d
F h 15
Ph(7I
118-6700 Ph 17171560-3131 0) 326453 JIDO)
Ph (9 23
Vale Ca1 1141
08
R
,
o iaa (9701738!S7 970 Ftt (117117171687.653 1.898
Fax 171711618 FI84739 Fax ta 17 1111)1 560-3136 Far (570197013273b3570 790
MATERIAL HA WILING INNOVATIONS SINCE 1955
.. Remit IO ....... 'it•if•itiE•H•il•itiF#1111#itiFitit?Y•itiF•R'• Invoice-0 ----: R021530
1 Independence Avenue it RENTAL INVOICE it Invoice-Date--: 08/03/1999
chanicsbur9 PA 17055 ik#iti'.••rti<•ititttititu•ttititit•5•it:tit Page-4 -- ------. 1
Account--# -•---: 00965-0001
ROWERS STROMBOLI/IFS LIMITED S ROHRER'S STROMDOLI
T H T BLDG 11,3
O PO BOX 3552 1 O 1302 SLATE HILL RD
SHIREMANSTOWN PA 17011-3552 P CAMP HILL PA 17011
I
_--__---_-----------•--.---•-•---
-Il -------. ------------------------------•-------------
Agreement-14 --:002766 LPIT ----------
rinds -------•: NET 10 DAYS Sell-Branch --: FORKLIFTS, INC. -14ECI•IANICSBUF2G
losmalf-41, •-:09782 Salesman -------:THRONE, TIMOTHY R.
ip-Late --•:06/24/1997 Entered-By ---.
ke -----•--•-: CLK Model ---------: ESMIII5S
set-it ----:691600 Serial.-0 -----:ESM249 0088 8717
scription/Comment Ott Price Amount
THIS I3 A 2 MONTH INVOICE WHICH COVERS RENTAL
FROM 6/14 THRU 7/13 AND 7/14 THRU 8/12
Rental. 06/14/1999 Thru 08/12/1999 1 998.00 998.00
Sub-Total --•--------- - ----998.-00
Sales-Tax
-._---------
Invoice-Total --------- >
ACCOUNTING
998.00
.J
I ,1
Z
11/22/99 09:54 FAX 7179188727 FORKLIMS.INC. 9004
7411ndependence Ave. 759 Flory Mill Rood 2097 South Piece sold AerW Llh Oh.
P470055
701 kee
$
PAf7F0f 10
5 l
• YoA- P117171845.1145
Repill 918
8729
Ph (50 1
4
Ph (NO) 32003
hiliII
Ph
7 -07
kee pill 918-0700
INC.
3136 Flit 15701220-3570 Fax 11717) 97479
72
?
ry
Y6 123
.
lege.
Stale Col
15701226.357044505
9 Tax J717) Sig-
r l
1
719154
Fu
MATERIAL HANDLING INNOVATIONS SINCE 1955 `
i:••k##•K•#i2•##ie#•7FiF####### Invoice-#t ----:
Remit To R02L531
L Independence Avenue - RENTAL INVOICE # Invoice-Date_ : 08/03/1994
chaniesburg, PA 17055 #7re############•tP#ar## Page-•#t - --
Account--#t -: I
00965-0001
P.OHRERS STROMBDLI/IFS LIMITED S RLIHRERS S'I'ROI%IBOLI/IFS LIMITED
H T BLDG #13
T
7 PO BI3X 3552 I 0 1302 SLA'rE HILL RD
SHIREMANSTOWN PA 17011-3552 P CAMP HILL PA 17011
------------------------------------•--
_{t - - - - - - - - Agreement-14 --:008608 LPIT
r771s ------: CREDIT MEhlO Sell-Branch --:FORKLIFTS, INC. -MECHANICSBURG
lesman-44 --:09631 Salesman --•---: MILLER, JEFFRJEY R.
ip-Date --:06/24/1997 Entered-By ----:KATHY
--• ---: CLK Model --------- : FSP111155
-
i
ce
----:691600 Serial-•# ------:ESM2H.9 OOEIS 8717
set-it
cription/Comment 0te Price Amount
CREDIT IN FULL - WILL REBILL WITH CORRECT DATES
REF INVOICE#t 8020221 DATE 7/1
Credit Due 07/01/1999 Billed Thru 07/31/1999 1 499.00-- 499.00-
Sub-Total -------•----- 499.00-
Sales-Tax -•-----------?
invoice-Total -------- _> 499.00-
ACCOUNTING
----- 11/22/99. 09:59, FAX 71791887 _ -___FORKLI F-r! .INC.
I r?ING
MATERIAL HANDLING INNOVATIONS SINCE 1955
Remit 70 ....... •u#x•#??P•ua•+P?S•15?a?a•75-?a1•ttt?
Independent 9 RENTAL INVOICE
1 #
?c•?9krSP•YiFr R•i 9S159P3t9Y#it#
chanicsburg. PA 170
S
ftCiFIRERS STROMBOLI/IFS LIMITED
T I O
0 PO BOX 3552 P
SHIREMANSTOWN PA 17011-3552
_.-._________________._-_------agreement-# --:002766 LPIT
-'Ll -- Sell-Branch --:FORKLIFTS, INC. -MECHAIVICSBURG
rms _-.-----:NET 10 DAYS Salesman ------:THRONE, TIMOTHY R.
lesman-1t •-:09782
Entered-By ---'^:
lp-7)ate --:06/24/1997 -----•----_--'-._.__._.--
_-------------- I`todel ---- '----: ESMIII5S
Re ------- :CLIA Serial-tt ESM249 OOBB 671?
- --°-----'---
so t-tt .691600 ----Qtg'-------•----__.
Price ASnount
s---- ion/Comment _____•_____-__
_ ----------------------- 1 499.00 A-99. 00
Rental 07/01/1999 Thru 07/31/1999 ----------
499.00
Sub-Total
sales-Tax
1411ndtpmdence All- 759 nop YID Road
1 TOSS SO 11, Nh Reuh9oad
?
.
anicWar sh 18 Div
Yet
Rtthaelca6wy, PA 17055 Ltptll S6F31? Vh (57013263575 Ph 18001 S45-2079
570
Ph 11111 5 5 5-070 0
Fax 11171915-0729
Fat 17171 5 6 0-31 3 5
Fax 15101 3 2W5 7 0
Rx 17171597.6
(21009
Yolk • Ph 1117) 945•"45
Ha 1117) Oil 0729
Stale 0o0e9e • Ph 8741239-0509
pt 157 01 326-3570
Invoice--#t ----:R020221.
Invoice-Date--:07/01/1999
Page-* -------•
Account-# ----:00965-0001
ROHRER'S STROMBOLI
DLUG 113
1302 SLATF_ HILL RD PA 17011
CAMP HILL
Invoice-Total ---- "-
2499 00
ACCOUNTING
11/22/99 09:53 PAX 7179188727
R0RKLIITS,INC.
"sue
(21002
' Tel lndapendence Ave. 759 Flory W[ Road 2697 Saulh Ruch Road Aelal LIN Div. 7oik• Ph (7171845-1145
MeeNnlcehmg,PA 17055 Luuclet, PA 17601 VRIWnapeN, PA 17701 Rechanlcahwg, PA 17055 Fax 17171916.6729
?^(?
B]FTQ INa Ph(717161N7N Ph 9171560-3131 Ph (570) 326.3538 Ph(600)54 mn Mile Wage• Ph(6141 23 8 05C
i ` 7.? he 171719104129 Fu 17171 HO-3136 ha(570132W570 Fix 17171657-6538 Fu1570132W570
MATERIAL HANDLING INNOVATIONS SINCE 1955
.... Remit To ....... i6•l 9Pdtik37dF9pihdti6iF9FY•FdPxYc#iF
1 Independent tP RENTAL INVOICE
chaniesburg, PA 170 7rir?atp#a-irIPtt•7tttf15apatett
ROHRERL, STROMBOLI/IFS LIMITED S ROHR
T H T BLDG
0 PO BOX 3552 I O 1302
SIAIRE11ANSTOWN PA 17011-3552 P CAMP
Invoice-41, ----:R018534
Invoice-Date--:05/1.7/1999
Page.-it ---•-----. 1
Account-tt ----:00965--0001
=R'S STROMBOLI
#3
SLATE HILL. RD
BILL PA 17011
- Agreement-it --:002766 LP IT
rms ------:NET 10 DAYS Sell-Branch --:FORKLIFTS, INC.-MECHANICSBURG
lesman-41, •-: 09762 Salesman -----: TIMOTHY R THRONE
ip-Date -•-:06/24/1997 Entered-By
ke --•--•---: CL.K Model --------: L SMII15B
set-it -----: 691600 Serial-# -•-•---: ESM249 0000 8717
scripti.on/Comment Qty Price Amount
Rental 05/15/1999 Thru 06/30/1999 1 499.00 499.00
Sub-Total ------•-------->
4.9900
Sales-Tax
---------•-•--3
Invoice-Total - - - - - - - 499 00
ACCOUNTING
' 11/22/90 10:01 FAX 7179188727 FORKLIFTS, INC. 16 018
7415ndeFandeme Ara. 7S9 Rory fill Road 2811 SoulA Roach Road Aedal LIN Olc. Yoe, - Ph (7171945-1145
_ Yachanlnbun,PA 17OSS lanculer, PA 17801 71111amxpad, PA 1tt01 Rachanluborp, PA 17OSS Fax(71719169729
INa Ph 017) 1194700 Ph 017)5600101 Ph(I70)02645M Ph 180015162010 Slate College - Ph (HQ 23"5c
j ®? Fa:0 171 9111.8129 Fax 0171 5 8 0 01 0 0 to 137019264570 94x01118974!lM he 1570) MUM
MATERIAL HANDLING INNOVATIONS SINCE 1955'•.,::::..e::.:r:.:-.:.>:; •i':,: ?i_:: r. L:l..
i
..... Remit TO it>r##i;•#trn#tb##iP##irr.•#ir#? Invoice-4. ------ R025321
'A.1 1nd(- pendand:e Avenue if RENTAL INVOICE iF Invoice-Date.--: 11/15-/1999
;echoinicsburcl, PA 17059 i}ip?F##11•.#.•K'.411##i:•#il•iF#Yrilil page-41
Account-•14 ••••---•:00965-0001
ROHRERS STROI`IISOLI/IF^a 1_IMITED _ ROHRERIS STROA1IlOL.:
H T BLDG 1:3
0 PC) BOX 3:152 I O 1302 SLATE HILL RD
.. :iHIREMANSTOWN PA 17011-3552 P CAMP HILL PA 17011
Ci-14 ---- Agrr•emr•.nt-il 001497 SRrC
:elms -•-----: hIF-.'T 30 DAYS Sell.-Branch - FORKLIFTS, INC. -19ECHANIOSBURG
la1ezrnan-•i: 097132 Salesman -•-----: THRONE, TIMOTHY R.
•ihiy-Date -•;03/28/1997 Entered-By ---.
-lake •-------•••; I9T.SC Made]. --------.,-:DOCK SEALS & L.EVELrR
lsset--O ----: A16168 Serial-•# -----: DOCK SEALS a LEVELER
:e 5c ri p t i 0n/Comment C4f2 prise Anount
Rental 11/13/1999 Thru 12/12/1999 1 x'51. 00 251. 01"T
Sub-Total ----------•---} 251.00
Sales-Tax -------------D
Invoice-Total ---•------} 251.00
? I
ACCOUNTING
11/22/99 10:00 FAX 7179188727 FORKLIFTS. INC.
Q017
^^ 741 independence Ave.
0S5
' 7599an RJl Road
PA17601
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scnan icsburq, PA 170`JS i6i i itit# tdlh-xil•71^FiHPihitY-iP
ROHRERS STROMBOL.I/IFS LINII-ED S
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Invoice-## ----:R024130
Invoice-•Dite--:10/14/1999
Page--4 -------. 1
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13LDG #3
1302 SLATE Fill-L. RD
CAI9P HILL PA 17011
Agreemenl-•1# --:001497 SREC
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talesman-4# -':09702 Sa Ienman ------: THRONE, TIrI OTHY R.
:hip--Date --:03/213/1997 Entered-By ---:
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asset-•{# --- --:A.ih16Cd Serial it ------:DOCK SEALS 3e LEVELER
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Sub-Total
Sales-Tax
Invoice-Total --------a
1 251. OO _ -251_00-
,251. OO
251. 00
ACCOUNTING
11/22/99 10:00 FAX 7179188727 FORKLIFI'S,INC.
PA 17011-3952
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^oalesma7l -----:THRONE-, TIMOTHY R.
Entered-By ---: _ __
Model --------DOCK SEALS -& LF-VEOER-
Serial-Jh -----:DOCK SEALS & LEVELER
Rental 09/1411999 T'h•ru 10/13/1999
Sub-Total
Sales-Tar.
Invoice-Total --------- >
Gty Price Amount;
.7, ..__ 251.00 - 251. 00
2151. 00
251. 00
ACCOUNTING
11/22/99 09:59 PAX 7179188727
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MATERIAL HANDLING INNOVATIONS SINCE 1955
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Invoice-it ----:R021954
Invoice-Date--:08/16/1999
Page-44 - --- 1
Account-# -----:00965-0001
ROF•IRER'S S'fROMBOLI
BLDG #3
1302 SLATE HILL RD
CAPIP HILL_
16015
PA 1701.1
Agreement-# --:001497 SREC
Sell-Branch --:FORKLIFTS, INC.-MECHANICSBURG
Salesman -----:THRONE, TIMOTHY R.
Entered-By --- • -.-
Model ---------:DOCK SEALS ?< LEVELER
Serial-0 --:DOCK SEALS & LEVELER
Sub-Total -----------?
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Invoice-Total ---------
City Price Amount
1 251.00 ---251_00-
251. 00
251.00
ACCOUNTING
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11/22/99 09:59 FAX 7179188727
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MATERIAL HANDLING INNOVATIONS SINCE 1955
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Invoice-## --•--:R0207S6
Invoice-Date--:0711.6/199`#7
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RO{-{I?ERs STROPIDOLI/IFS LIMITED
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S ROHRER'S STROMBOLI
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PA 17011
Agreement-it --:001497 SREC
Sell-Branch -•-: FORKLIFTS, IhIC. -{`IECFIAPJICSBVftG
Salesman -----:THRONE, TIMOTHY R.
L-ntered-BY ---:
model --:DOCK SEALS & LEVELER
-
Serial-#F -,----:DOCK SEALS &_1_EVELER
Rental. 07/16/1999 Thru 00/14/1999
Sub•-Total --- -- '
Invoice-Total ----'----'
ACCOUNTING
PA 1.7011-3552
Price Amount
1 ?_51.00 251.00
251 00
251.00
0
11/22/99 09:58 FAX 7179188727 FORRLIFI•S, INC.
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Invoice-4 ----:R019737
Invoice-Date--:06/17/1999
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SLATE HILL RD
HILL PA 17011
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alosman-# -:09752 Salesman -----:TIMOTHY R THRONE
nip-Date --:03/28/1997 Entered-By
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Rental 06/16/1999 Thru 07/15/1999 1 251.00
Sub-Total ----------•-
Sa l e s •-7a x -------------
Invoice-Total --------
ACCOUNTING
Amount
251.. 00
251.. DO
251. 00
F,-___,_-
11/22/90 09:58 FAX 7179188727
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MATERIAL HANDLING INNOVATIONS SINCE 1955
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ROHRER'S S'TROMIaOLA
BLDG 4#3
1302 SLATE"- H.T.L.L. RD
CAMP HILL. PA 17011
Agreement--#i --:001497 SREC
Sell-Branch --:FORKLIFTS, INC.-MECHANICSBURG
Salesman -----:TIMOTHY R THRONE
Entered-Bg ----:
Model --------:DOCK SEALS & LEVELER
Serial-•iF -:DOCK SEALS & 1-EVELER
scripti.on/Cemment_----------_-----
Rental 05/17/1999 Thru 06/15/1999
Sub-Total. --------------
Sales-Tax -•------ ->
Invoice-Total --------->
Qty Price AmOUnt
251.00 --_-"_51. 00-
351. 00
251.00
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FORKLIFTS, INC., IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PENNSYLVANIA
Plaintiff
V.
LEO BLOOM and IF SERVICES
LTD., a/k/a IFS LTD., both:
individually and t/d/b/a
IF SERVICES LTD., and
IFS LTD.,
Defendants
NO. 99-7581 CIVIL
CIVIL ACTION- LAW
IN REPLEVIN
ANSWER TO COMPLAINT
NOW COME, Defendant, I F Services Ltd., a/k/a IFS, LTD.,
and Defendant Leo Bloom by and through their attorneys,
Cunningham & Chernicoff, P.C., and make their Answer to the
Complaint filed by the Plaintiff Forklifts, Inc., as follows:
1. Admitted.
2. Admitted in part, denied in part. It is admitted
that Defendant Leo Bloom is an adult individual; and that
Defendant I F Services Ltd. has a place of business located at
Building #3, 1302 Slate Hill Road, Camp Hill, Cumberland
County, Pennsylvania 17011. It is specifically denied that
Defendant Leo Bloom is trading and doing business as I F
Services Ltd., or as IFS Limited.
3. Denied as stated. Defendant I F Services Ltd. is a
Delaware corporation a/k/a IFS, LTD., with a place of business
at Building #3, 1302 Slate Hill Road, Camp Hill, Cumberland
County, Pennsylvania 17011. As further answer, Defendant I F
Services Ltd. was qualified to do business in Pennsylvania on
or about September 1, 1998.
4. Denied as stated. On or about March 21, 1997,
Plaintiff and S-PRO CORPORATION t/d/b/a Rohrer's Stromboli
("S-PRO"), entered into an agreement whereby Plaintiff agreed
to lease to S-PRO a Clark ESM II Forklift in exchange for
monthly payments in the amount of $499.00. It is denied that
S-PRO was a predecessor to either Defendant.
5. Denied. After reasonable investigation Defendants
are without knowledge or information sufficient to admit or
deny the averment contained in Paragraph 5, and the averment
is therefore denied. By way of further reply, the "Agreement"
referenced to in Paragraph 5 of Plaintiff's Complaint and
attached to Plaintiffs Complaint as Exhibit "B" is a
promissory note and security agreement dated March 28, 1997,
securing Financial Trust Company's security interest in a dock
leveler and purportedly granted by Forklifts, Inc.
2
Accordingly, it is specifically denied that the "Agreement"
attached to Plaintiff's Complaint as Exhibit "B" represents an
agreement whereby Plaintiff agreed to lease a dock leveler to
S-PRO in exchange for monthly payments of $250.00.
6. Admitted in part and denied in part. It is
specifically denied that Exhibit "C" attached to Plaintiff's
Complaint concerns the dock leveler previously mentioned in
Paragraph 5 of Plaintiff's Complaint. It is admitted that the
Master Rental Agreement referenced in Paragraph 6 of
Plaintiff's Complaint and attached thereto as Exhibit "C"
concerns or covers the aforementioned forklift.
7. Denied as stated. It is specifically denied that
Defendant Leo Bloom assumed any obligations of S-PRO under the
agreement referenced in Paragraph 7 of Plaintiff's Complaint
and attached thereto as Exhibit "D". The agreement referenced
in Paragraph 7 of Plaintiff's Complaint was not signed by
Defendant Leo Bloom in his individual capacity; rather, the
agreement was between S-PRO and Defendant I F Services Ltd.
and was signed by Defendant Leo Bloom in his capacity as
President of I F Services Ltd. Defendant Leo Bloom has no
individual liability under the agreement referenced in
3
paragraph 9 of Plaintiff's Complaint. It is further denied
that Defendant Leo Bloom ever personally took possession of
the aforementioned forklift. It is admitted that Defendant I
F Services Ltd. took possession of the aforementioned forklift
in or about April 1998. It is further admitted that Defendant
I F Services Ltd. assumed the obligations of S-PRO with regard
to the lease for the forklift.
COUNT I
BREACH OF CONTRACT
8. Defendants incorporate their answers to Paragraph 1
through 7 by reference as if more fully set forth herein.
9. Denied as stated. It is specifically denied that
Defendant Leo Bloom, individually, assumed any obligation of
S-PRO or any other entity pursuant to the Asset Purchase
Agre:ement that is Exhibit "D" to the Complaint, and
particularly with regard to the aforementioned forklift or
dock leveler. As further answer, Defendants herein
incorporate their reply to paragraph 7 of Plaintiff's
Complaint by reference thereto. It is further denied that
I F Services Ltd. ever assumed any obligation under the note
4
and security agreement between Forklifts, Inc. and Financial
Trust Company, referenced in Paragraph 9 of Plaintiff's
Complaint and attached thereto as Exhibit "B". Defendants
herein incorporate their answers to Paragraphs 5 and 6 of
Plaintiff's Complaint by reference thereto. It is admitted
that in or about April 1998, Defendant I F Services Ltd.,
pursuant to an Asset Purchase Agreement, assumed S-PRO'S
obligation to Plaintiff Forklifts, Inc. with regard to the
aforementioned forklift.
10. Denied as stated. It is specifically denied that
Defendant Leo Bloom, individually, informed Plaintiff that he
would individually pay the monthly rental of either the
forklift or the dock leveler. Defendant Leo Bloom,
individually, is not a party to any agreement with Plaintiff,
for the reasons more fully set forth in Defendants answer to
paragraph 7 of Plaintiff's Complaint, hereby incorporated by
reference. Defendant I F Services Ltd. specifically denies
any obligation under Plaintiff's Exhibits "B", "C", or "D", to
Plaintiff Forklifts, Inc. and with regard to the
aforementioned dock leveler. Defendant I F Services Ltd.
hereby incorporates its answer to Paragraphs 5 and 6 of
Plaintiff's Complaint by reference thereto.
5
11. After reasonable investigation, Defendants are
without information sufficient to admit or deny the averment
contained in Paragraph 11 and strict proof thereof is
demanded, if relevant at trial. As further answer, it is
denied that Defendant Leo Bloom assumed or incurred any
obligations for the reasons more fully set forth in
Defendant's answer to Paragraph 7 of Plaintiff's complaint,
hereby incorporated by reference.
12. Denied as stated. It is admitted that Defendant
I F Services Ltd. retained possession of the forklift after
April 1998. By way of further reply it is specifically denied
that Defendant I F Services Ltd. retained possession of the
dock leveler. Defendants believe and therefore aver that the
dock leveler in question is permanently affixed to the
building currently being leased by Defendant I F Services Ltd.
and therefore has become a fixture. If Plaintiff asserts an
ongoing security interest in such item, then strict proof of
a properly executed Form UCC-1 filed with the Cumberland
County Recorder of Deeds, and Pennsylvania Department of
State, perfecting such interest should have been produced and
attached to Plaintiff's Complaint. As no such documents have
been identified or produced, Defendants believe and therefore
6
:. a ._ .?_..:
aver that the dock leveler is the property of the realty
owner. Moreover, it is specifically denied that Defendant Leo
Bloom, individually, retained possession of the aforementioned
forklift or dock leveler, for reasons more fully set forth in
Defendants' answer to paragraph 7 of Plaintiff's Complaint,
herein incorporated by reference.
13. The averments contained in Paragraph 13 constitute
conclusions of law to which no responsive pleading is
required. If and to the extent that a response is required,
the averment that the Defendants are in breach of the
"aforementioned agreement" by failing "to pay the monthly
rental payments for the months including and after May, 1999"
is specifically denied. It is specifically denied that
Defendant Leo Bloom, individually, is in breach of any of the
"aforementioned Agreements." Defendant Leo Bloom has no
obligation to Plaintiff for the reasons more fully set forth
in Defendants reply to paragraph 7 or Plaintiff's Complaint,
herein incorporated by reference. Defendant I F Services Ltd.
incorporated its answer to Paragraph 11 as if more fully set
forth herein. A strict accounting of all payments made by or
on behalf of Defendant I F Services Ltd. for use of the
forklift is demanded if relevant at time of trial.
7
i
14. After reasonable investigation, Defendants are
unable to determine whether or not the copies attached to
Plaintiff's Complaint as Exhibit "E" fairly and accurately
represent the Plaintiff's invoices and the averment is
therefore denied. As further answer, it is denied that
Defendant Leo Bloom assumed or incurred any obligations to
Plaintiff Forklifts, Inc. for the reasons more fully set forth
in Defendants answer to Paragraph 7 of Plaintiff's Complaint,
herein incorporated by reference.
15. Denied. It is specifically denied that Defendant
Leo Bloom, individually, is required to reimburse Plaintiff
for all reasonable attorney's fees pursuant to any of the
"aforementioned agreements" for the reasons more fully set
forth in Defendants answer to paragraph 7 of Plaintiff's
Complaint, herein incorporated by reference. By way of
further reply, it is specifically denied that Defendant I F
Services Ltd. is required to reimburse Plaintiff for any
attorney's fees. Paragraph 13.2 of the Master Rental
Agreement provides for the collection of a reasonable sum for
attorney's fees only in the event of written notice of
termination of the agreement. Plaintiff has neither alleged,
nor attached to the Complaint, any written notice of
8
,e
termination; and Defendant I F Services Ltd. is unaware of any
written notice of termination.
16. After reasonable investigation, Defendants are
without knowledge or information sufficient to admit or deny
the averments contained in Paragraph 16 and, consequently,
deny same. By way of further reply, it is denied that 20°a of
the balance alleged due is usual and/or customary as an
attorney's fee; and strict proof thereof is demanded, if
relevant, at trial. It is further denied that 20°s of the
balance alleged due is a reasonable sum in light of what the
Plaintiff has expended or incurred; and strict proof thereof
is demanded, if relevant, at trial.
17. The averments contained in Paragraph 17 constitute
conclusions of law to which no responsive pleading is
required. If and to the extent that a response is required,
it is specifically denied that either Defendant I F Services
Ltd. or Defendant Leo Bloom owes unpaid rent in the amount of
$5,250.00 to Forklifts, Inc. Defendant I F Services Ltd.
believes, and therefore avers, that payments were made to
Forklifts, Inc. pursuant to the assumed forklift lease
agreement and were not properly credited. A strict accounting
9
;¦
of all payments made by or on behalf of Defendant I F Services
Ltd. to Forklifts, Inc. is demanded if relevant at time of
trial. It is specifically denied that Plaintiff is entitled
to judgment in any amount from Defendant Leo Bloom. Defendant
Leo Bloom, individually, never assumed any obligations to
Plaintiff Forklifts, Inc. under any agreement, as more fully
set forth in Defendants' answer to paragraph 7 of Plaintiff's
Complaint, herein incorporated by reference. Defendants
object to the attorney's fees listed in Paragraph 17 of
Plaintiff's Complaint, by herein incorporating Defendants,
answer contained above in Paragraphs 15 and 16.
18. Admitted in part and denied in part. It is admitted
that Defendant Leo Bloom, individually, has refused and
continues to refuse to pay the aforesaid sums or any part
thereof because Defendant Leo Bloom, individually, is not
liable to Plaintiff. Defendants herein incorporate by
reference their answers to paragraphs 9, 10, and 12 of
Plaintiff's Complaint. As further answer, it is denied that
Defendant I F Services Ltd. owes Plaintiff the amount of
$6,521.62, for the reasons more fully set forth in Defendants'
answer to Paragraph 17 of Plaintiff's Complaint, herein
incorporated by reference.
10
WHEREFORE, Defendants respectfully requests that this
Honorable Court enter judgment in their favor and against the
Plaintiff, and dismiss the Plaintiff's Complaint with
prejudice.
COUNT II
IN QUANTUM MERUIT
19. Defendants incorporate their answers to Paragraphs
1 through 18 as if more fully set forth herein.
20. Denied as stated. Plaintiff provided and made
available the Forklift to S-PRO on or about March 21, 1997.
Defendant I F Services Ltd. assumed S-PRO's obligation under
the forklift Lease Agreement in or about April 1998. It is
specifically denied that Plaintiff provided and made available
the aforesaid forklift to Defendant Leo Bloom, individually,
at any time.
21. Denied as stated. It is denied that Plaintiff
conferred a material benefit upon Defendant Leo Bloom,
individually, or that Defendant Leo Bloom individually
promised to pay the reasonable rental value of the forklift or
11
'`mss
i
the dock leveler. Defendant Leo Bloom, individually, never
was a party to any agreement with Plaintiff Forklifts, Inc.;
and he never signed any guaranty by which he became obligated
to pay any other person's or entity's debts to Plaintiff. As
further answer, it is specifically denied that Defendant I F
Services Ltd. promised to pay the "reasonable rental value" of
either the dock leveler or the forklift. Defendants
incorporate their answers to Paragraphs 5, 6, and 12 of
Plaintiff's Complaint, herein incorporated by reference.
22. Denied. It is specifically denied that the
Plaintiff expected remuneration from Defendant Leo Bloom,
individually, or from Defendant I F Services Ltd. in March
1997, the time of the rental of the Forklift. The Forklift
was originally leased on March 21, 1997, by Plaintiff to S-PRO
Corporation. Defendant I F Services Ltd. did not assume that
rental agreement until April 1998.
23. Admitted in part and denied in part. It is
specifically denied that Defendants were aware the Plaintiff
expected payment for the use of a "dock leveler". Plaintiff
has not provided any lease agreement concerning such
equipment. As further answer, Defendants herein incorporate
12
by reference their answers to Paragraphs 5, 6 and 7 of
Plaintiff's Complaint. It is admitted that in or about April
1998 Defendant I F Services Ltd. was aware that Plaintiff
expected payment from it for use of the forklift.
24. Admitted. It further is admitted that Defendant
IF Services Ltd. has not remitted payment in the amount of
$6,521.62 in that Defendant IF Services Ltd. cannot determine
how this figure was arrived at or the amount of any debt to
Plaintiff. As further answer, Defendants' answer to the
averments contained in Paragraph 17 Plaintiff's Complaint is
herein incorporated by reference.
25. Denied. It is specifically denied that Defendant I
F Services Ltd. has been unjustly enriched, in the absence of
a strict accounting detailing payments made by I F Services
Ltd. to Forklifts, Inc., and application of such amounts,
under the forklift Lease Agreement.
26. After reasonable investigation Defendants are
without knowledge or information sufficient to admit or deny
the averments contained in Paragraph 26 of Plaintiff
Complaint, and therefore such averments are denied. As
13
further answer, Defendants deny any basis for the purported
addition of costs, interest, and attorney fees for the reasons
set forth in their answers to Paragraphs 15, 16 and 17 of
Plaintiff's Complaint.
WHEREFORE, Defendants respectfully request judgment in
their favor and against Plaintiff, and ask that this Honorable
Court dismiss Plaintiff's claim in the amount in excess of
$5,250.00 plus costs, interests and attorneys fees.
COUNT III
27. Defendants incorporate their answers to Paragraphs
1 through 26 by reference as if more fully set forth herein.
28. The averments contained in Paragraph 28 constitute
conclusions of law to which no responsive pleading is
required. If and to the extent a response is required,
Defendant I F Services Ltd. specifically denies owing
Plaintiff the amount $5,250.00 for the rental of equipment for
the reasons more fully set forth in Defendants reply to
Paragraphs 5, 6, 9, 17 and 26 of Plaintiff's Complaint; and
Defendant Leo Bloom, individually, specifically denies owing
Plaintiff any sum.
14
29. Denied as stated. It is admitted that Plaintiff has
demanded payment from Defendant I F Services Ltd. in the
amount of $6,521.62. It is specifically denied that such sum
is the correct amount due. Defendant I F Services Ltd.
believes, and therefore avers, that payments made by or on its
behalf to Forklifts, Inc. in connection with the assumed
forklift lease agreement were not properly credited to its
account. Defendant I F Services Ltd. is unable to calculate
any amount due to Plaintiff in the absence of a strict
accounting detailing payments made by I F Services Ltd. to
Forklifts, Inc., and application of such amounts, under the
Forklift Agreement. Defendants herein incorporate their
answers to Paragraphs 5, 6, 9, 17, 26, and 28 of Plaintiff's
Complaint by reference thereto.
30. Admitted in part and denied in part. It is admitted
that Defendant Leo Bloom, individually, has refused and
continues to refuse to pay the aforesaid sums or any part
thereof because Defendant Leo Bloom, individually, is not
liable to Plaintiff. Defendants herein incorporate by
reference their answers to paragraphs 9, 10, and 12 of
Plaintiff's Complaint. As further answer, it is denied that
Defendant I F Services Ltd. owes Plaintiff the amount of
15
$6,521.62, for the reasons more fully set forth in Defendants'
answer to Paragraph 17 of Plaintiff's Complaint, hereir.
incorporated by reference.
WHEREFORE, Defendants respectfully request judgment in
their favor and against the Plaintiff, and ask that this
Honorable Court dismiss Plaintiffs claim in the amount of
$5,250.00 plus costs interests and attorney's fees.
COUNT IV
REPLEVIN
31. Defendants incorporate their answers to Paragraphs
1 through 30 by reference as if more fully set forth herein.
32. After reasonable investigation Defendant is without
knowledge or information sufficient to admit or deny the
averment contained in Paragraph 32, and such averment is
therefore denied.
33. Denied. It is specifically denied that Plaintiff is
entitled to immediate possession of the aforementioned
16
forklift. Paragraph 13.2 of the Master Rental Agreement
provides that Plaintiff is entitled to immediate possession of
the forklift only in the event of written notice of
termination. Plaintiff has not provided Defendant I F
Services Ltd. with written notice of termination pursuant to
paragraph 13.2 of the Master Rental Agreement. Consequently,
Defendant I F Services Ltd. believes, and therefore avers,
that Plaintiff is not entitled to immediate possession of the
Forklift. Defendants herein incorporate their answer to
Paragraph 15 by reference thereto. Furthermore, Defendant IFS
Ltd. is unable to calculate any amount due to Plaintiff in the
absence of a strict accounting detailing payments made by I F
Services Ltd. to Forklifts, Inc., and application of such
amounts, under the Forklift Agreement.
34. Denied. It is specifically denied that Defendant I
F Services Ltd. is wrongfully detaining the aforementioned
Forklift or unlawfully depriving Plaintiff of possession of
the Forklift. Defendants herein incorporate their answers to
Paragraphs 15 and 33 by reference thereto. It is specifically
denied that Defendant Leo Bloom, individually, is detaining
the forklift as he, individually, is not a party to the Lease
Agreement and cannot individually exercise any control over
17
such forklift. Defendants incorporate their answer to
Paragraph 7 herein by reference as if more fully set forth.
35. Denied as stated. It is specifically denied that
Defendants have any obligation to return the forklift in
question absent a proper, effective written notice of
termination. Furthermore, Defendant IFS Ltd. is unable to
calculate any amount due to Plaintiff in the absence of a
strict accounting detailing payments made by I F Services Ltd.
to Forklifts, Inc., and application of such amounts, under the
Forklift Agreement. Defendants herein incorporate their
answers to Paragraphs 7, 15, 33, and 34 by reference.
36. After reasonable investigation Defendants are
without knowledge or information sufficient to admit or deny
the averment contained in Paragraph 36 and, therefore, such
averment is denied.
37. Admitted.
18
crc
.13
WHEREFORE, Defendants demand judgment in their favor and
Plaintiff as regards possession of the aforementioned
Respectfully submitted,
CUNNINGHAM & CHERNICOFF, P.C.
By: dl?x w? V, 6'6?
Henry Van Eck
I.D. #83087
2320 North Second Street
P.O. Box 60457
Harrisburg, PA 17106-0457
(717) 238-6570
(Attorneys for Defendant)
19
JHN-1`J kJkl 12:1`! hh'U11:
rl cdzbtSO rl
I U: Sea iUCb PiAot: Lie
MRIF1CATION
I?, Lao Sl;,iiin, PYesiderit, 'IF Seiviceci LTD, verify that the
3tatC81Cnt5 made ii: the :vXey'Oiny iv':5:3ET to Cv?'iNlniliL ate Lt LLe
and correct to the beet of my knowledge, information and
hAliBf T underetand that false statements- here-in are-made
subject to the. nenalrivA of mw3worn falsification to
authorities.
Leo Bloom, President
IF Servcies LTD
liStE: I ` 1 ??
CERTIFICATE OF SERVICE
I, Henry W. Van Eck, Esquire, do hereby certify that a
true and correct copy of the DefendantsI Answer to Plaintiff's
Complaint in the above-captioned matter was placed in the
United States Mail, postage prepaid in Harrisburg,
Pennsylvania on this date, on the following:
David J. Lanza, Esquire
Johnson, Duffie, Stewart & Weidner
301 Market Street
P.O. Box 109
Lemoyne, PA 17043-0109
Respectfully submitted,
CUNNINGH??A??M11 &fC/HERNIIC?O?FjF, P.C.
Date: I-)1•00 BY: L W • vLq
Henry W. Van Eck
I.D. #83087
2320 North Second Street
P.O. Box 60457
Harrisburg, PA 17106-0457
(717) 238-6570
(Attorneys for Defendant)
i?
I
SHERIFF'S RETURN - OUT OF COUNTY
.00
66.50
01/11/2000
JOHNSON, DUFFIE, STEWART
Sworn and subscribed to before me
this 281121 day of ao
„2(02x0 A. D. -•
Prothonotary
CASE NO: 1999-07581 P
COMMONWEALTH OF PENNSYLVANIA:
COUNTY OF CUMBERLAND
FORKLIFTS INC
VS
BLOOM LEO ET AL
R. Thomas Kline , Sheriff or Deputy Sheriff who being
duly sworn according to law, says, that he made a diligent search and
and inquiry for the within named DEFENDANT to wit:
BLOOM LEO T/D/B/A IF SERVICES LTD AND IFS LTD
but was unable to locate Them in his bailiwick. He therefore
deputized the sheriff of DAUPHIN County, Pennsylvania, to
serve the within COMPLAINT - REPLEVIN W/NO
On January 11th , 2000 , this office was in receipt of the
attached return from DAUPHIN
Sheriff's Costs: So /ans3ce7rs:
Docketing 18.00 / r
Out of County 9.00
Surcharge 8.00 A. Thomas Kline
DEP. DAUPHIN CO 31.50 Sheriff of Cumberland County
SHERIFF'S RETURN - OUT OF COUNTY
CASE NO: 1999-07581 P
COMMONWEALTH OF PENNSYLVANIA:
COUNTY OF CUMBERLAND
FORKLIFTS INC
VS
BLOOM LEO ET AL
R. Thomas Kline Sheriff or Deputy Sheriff who being
duly sworn according to law, says, that he made a diligent search and
and inquiry for the within named DEFENDANT , to wit:
IF SERVICES LTD T/D/B/A IF SERVICES LTD AND IFS LTD
but was unable to locate Them in his bailiwick. He therefore
deputized the sheriff of DAUPHIN County, Pennsylvania, to
serve the within COMPLAINT - REPLEVIN/ NOT
On January 11th 2000 this office was in receipt of the
attached return from DAUPHIN
Sheriff's Costs:
Docketing 6.00
Out of County .00
Surcharge 8.00
.00
.00
14.00
01/11/2000
JOHNSON, DUFFIE,
So answ
R Thomas Kline
Sheriff of Cumberland County
STEWART
Sworn and subscribed to before me
this day of? .?.
?wrU A. D.
L -1
Prothonotary
b -"
1A
(?t;CP IIPPrif
Man Jane Sup der
Real Iisuec Del X11%
William T. Tully
Solicitor
Dauphin County
Harrisburg. Penns•h•ania 17101
ph: (717) 255.2660 fits: (717) 255-2899
Jack Lotwick
Sheriff
Ralph G. McAllister
Chief 11Lpuh•
Michael W. Rinehart
A,.i.uuu Chief lxpulY
Commonwealth of Pennsylvania FORKLIFTS INC
Vs
County of Dauphin
• BLOOM LEO T/D/B/P_ -IF SERVICES & IFS IT
Sheriff's Return
No. 0011-T - - -2000
OTHER COUNTY NO. 99-7581-CIVIL
AND NOW: January 5, 2000 at 11:50AM served the within
NOTICE & COMPLAINT IN CIVIL ACTION
BLOOM LEO T/D/B/A IF SERVICES & IFS LTD
to DEFT
upon
by personally handing
1 true attested copy(ies)
of the original NOTICE & COMPLAINT IN CIVIL ACTION
and making known
to him/her the contents thereof at 713 S 22ND STREET
HARRISBURG, PA 17104-0000
Sworn and subscribed to
before me this 6TH day of JANUARY, 2000
PROTHO OTARY L??%°? ;?
So Answers,
Sheriff of Dauphin County, Pa,
By4
Deputy Sheriff
Sheriff's Costs: $31.50 PD 01/04/2000
RCPT NO 131960
RH I:®
(1?f ttQ Of E ,,"4Prf
iff
Man Jane Snyder
Rwl rslate Iktxtt%
William T. Tull%
Solicitor
Dauphin Count%
Harrisburg. PcnnsvNania 17101
ph: (717) 255-2660 liix: (717) 255-2889
Jack Lotwick
Shcriff
Ralph G, McAllister
C•llicl' 1 kpul}
Michael W. Rinchart
Asi,lanl C hicl' Dq)uty
Commonwealth of Pennsylvania FORKLIFTS INC
Vs
County of Dauphin BLOOM LEO T/D/B/A IF SERVICES & IFS LT
Sheriff's Return
No. 0011-T - - -2000
OTHER COUNTY NO. 99-7581-CIVIL
AND NOW: January 5, 2000 at 11:50AM served the within
NOTICE & COMPLAINT IN CIVIL ACTION Upon
IF SERVICES LTD A/K/A IFS LTD T/D/B/A by personally handing
IF SERVICES LTD AND IFS LTD
to LEO BLOOM 1 true attested copy(ies)
of the original NOTICE & COMPLAINT IN CIVIL ACTION and making known
to him/her the contents thereof at 713 S 22ND STREET
HARRISBURG, PA 17109-0000
Sworn and subscribed to
before me this 6TH day of JANUARY, 2000
PROTHONOTARY -N-' ./'D
So Answers,
Sheriff of Dauphin County, Pa.
B iwiA
Deputy Sh riff
Sheriff's Costs: $31.50 PD 01/09/2000
RCPT NO 131960
RH
In The Court of Common Pleas of Cumberland County, Pennsylvania
Forklifts, Inc.
vs.
Leo Bloom, et. al.
Serve: IF Services LTD, a/k/a
IFS LTD, t/d/b/a IF Services LTD,
Now, 12/29/99
No. 99-7581 Civil
and IFS LTD
19_, I, SHERIFF OF CUMBERLAND COUNTY, PA, do
hereby deputize the Sheriff of Dauphin County to execute this Writ, this
deputation being made at the request and risk of the Plaintiff,
P
Sheriff of Cumberland County, PA
Affidavit of Service
Now,
within
upon
at
by handing to
a
and made known to
19_, at o'clock _ M. served the
copy of the original
So answers,
the contents thereof.
Sheriff of
Sworn and subscribed before
me this _ day of 19
COSTS
SERVICE S
MILEAGE
AFFIDAVIT
S
County, PA
In The Court of Common Pleas of Cumberland County, Pennsylvania
.Forklifts, Inc.
VS.
Leo Bloom, et. al.
Serve: Leo Bloom, t/d/b/a No. 99-7581 Civil
IF Services, & IFS Ltd.
Now, 12/29/99 19_, I, SHERIFF OF CUMBERLAND COUNTY, PA, do
hereby deputize the Sheriff of Dauphin County to execute this Writ, this
deputation being made at the request and risk of the Plaintiff
Sheriff of Cumberland County, PA
Affidavit of Service
Now,
within
upon
at
by handing to
a
and made known to
copy of the original
the contents thereof.
So answers,
Sheriffof
Sworn and subscribed before
me this _ day of , 19
19_, at o'clock M. served the
COSTS
SERVICE _
MILEAGE _
AFFIDAVIT
County, PA
S
a
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