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11-8416
0 OF THELPROTHONOTARY James N. Clymer, Esquire 101 NOV _7 PM 4: 16 Attorney ID 27151 Clymer, Musser, Brown & Conrad, P.C. CUMBERLAND COUNTY 408 W. Chestnut St. PENNSYLVANIA Lancaster, PA 17603 (717) 299-7101 Attorney for Plaintiff JAIRAM 7, INC. IN THE COURT OF COMMON PLEAS vi. CUMBERLAND COUNTY, PENNSYLVANIA HNS MANAGEMENT, LLC t/a COUNTRY OVEN RESTAURANT f/k/a SAHAR MATER ENTERPRISES CARLISLE, LLC t/a MATER RESTAURANT MANAGEMENT AND COUNTRY OVEN RESTAURANT DOCKET NO.: CIVIL ACTION - AT LAW cV,?7r17 IN CONFESSION OF JUDGMENT FOR POSESSION OF REAL PROPERTY CONFESSION OF JUDGMENT IN EJECTMENT Pursuant to the authority contained in the Warrant of Attorney, a copy of which is attached to the Complaint filed in this action, I appear for the Defendant and confess judgment in ejectment in favor of the Plaintiff, Jairam 7, Inc. and against Defendants, HNS Management LLC t/a Country Oven Restaurant f/k/a Sahar Mater Enterprises Carlisle, LLC t/a Mater Restaurant Management and Country Oven Restaurant., for possession of the commercial property described as the restaurant and banquet facilities located at 1245 Harrisburg Pike, Carlisle, Pennsylvania 17013 that are utilized by the Defendants at said property. Respectfully Submitted, CLYM BROWN & ONRAD, P.C. James N er ire Attorney 7151 408 W. Chestnut St.a Lancaster, Pennsylvania 17603 eZ q (717) 299-7101 Attorneys for Plaintiff # A47 02 gob-ce /19 (, ' A James N. Clymer, Esquire Attorney ID 27151 Clymer, Musser, Brown & Conrad, P.C. 408 W. Chestnut St. Lancaster, PA 17603 (717) 299-7101 Attorney for Plaintiff JAIRAM 7, INC. IN THE COURT OF COMMON PLEAS viii. CUMBERLAND COUNTY, PENNSYLVANIA HNS MANAGEMENT, LLC t/a COUNTRY OVEN RESTAURANT f/k/a SAHAR. MATER ENTERPRISES CARLISLE, LLC t/a MATER RESTAURANT MANAGEMENT AND COUNTRY OVEN RESTAURANT DOCKET NO.: ??- SgI4 'vl _ / c?? CIVIL ACTION - AT LAW IN CONFESSION OF JUDGMENT FOR POSESSION OF REAL PROPERTY COMPLAINT IN CONFESSION OF JUDGMENT FOR EJECTMENT Plaintiff, Jairam 7, Inc., by and through its attorneys, CLYMER, MUSSER, BROWN & CONRAD, P.C., hereby files this Complaint in Confession of Judgment and, in support thereof, avers as follows: 1. Plaintiff is Jairam 7, Inc., is a Pennsylvania business corporation with its offices located at 1245 Harrisburg Pike, Carlisle, Cumberland County, Pennsylvania 17013. 2.. Defendant, HNS Management LLC t/a Country Oven Restaurant is a Pennsylvania limited liability company having a registered place of business located at 1245 Harrisburg Pike, Carlisle, Cumberland County, Pennsylvania 17013. HNS was formerly known as Sahar Mater Enterprises Carlisle, LLC and was a Pennsylvania limited liability company that traded and did business as both Mater Restaurant Management and the Country Oven Restaurant prior to the official name change with the Pennsylvania Department of State on or about March 11, 2008. 3. Plaintiff and Defendants entered into a Joint Venture Agreement which, although not dated, Plaintiff believes and therefore avers that it was executed in June, 2003, (hereinafter "Agreement"). A true and correct copy of said Joint Venture Agreement is attached hereto as Exhibit "A" and incorporated by reference. 4. The Agreement was amended, modified and supplemented by an Addendum dated August 3, 2003. A true and correct copy of the Addendum is attached hereto and incorporated herein as Exhibit "B". 5. The commercial property at issue herein is part of the Howard Johnson Carlisle Motel located at 1245 Harrisburg Pike, Carlisle, Pennsylvania (hereinafter "Motel Property") consisting of a restaurant, lounge and banquet facilities ("Leased Facilities") that are utilized by the Defendants, operating as County Oven Restaurant. 6. The purpose of the Agreement was, inter alia , to provide for Defendant's use and operation of the restaurant, lounge and banquet facilities in the nature of a lease, together with the hotel liquor license, in conjunction with the motel operations. 7. Plaintiff is an equitable owner of and has possession of the Motel Property pursuant to a triple net lease with the record title owner, Beauty Seven, a Pennsylvania general partnership and Plaintiff's interest therein was assigned to the Joint Venture by Lease Assignment Agreement dated April 8, 2004 to the extent necessary to accommodate the Joint Venture Agreement. A copy of the Lease Assignment Agreement is attached hereto and incorporated herein as Exhibit "C". 8. The Motel Property is further described as Unit 1 in a Declaration of Condominium recorded as Instrument No. 200829988 in the office of Recorder of Deeds of Cumberland County. The legal description of the Motel Property is attached hereto as Exhibit "D". 9. Plaintiff seeks to confess judgment in ejectment for possession of the Leased Facilities located at 1245 Harrisburg Pike, Carlisle, Pennsylvania 17013 that are occupied by the Defendants. 10. Plaintiff avers that this judgment is not being entered by confession against a natural person in connection with a consumer credit transaction or against a natural person in connection with a residential lease. 11. Plaintiff is not aware of any assignment of the Joint Venture Agreement. 12. Plaintiff avers that judgment has not been previously entered on the Joint Venture Agreement in any jurisdiction. 13. Judgment may be entered as a result of Defendants' default of the terms and conditions of the Joint Venture Agreement. Specifically, Defendants have failed and refused to pay the agreed upon joint venture distribution within the terms as shown by the Default Notice Letter dated December 31, 2010, a true and correct copy of which is attached hereto and marked Exhibit "E", and further, by letter addressed to Defendant dated January 17, 2011, shows the balances due as of January 2010, a true and correct copy of which is attached hereto and marked Exhibit 'T". 14. In the letter attached as Exhibit 'T', Defendant was advised that if all payments then due were not pain in full by January 22, 2011, it was the intentions of Plaintiff to proceed with the default remedies provided under the agreement. 15. Defendants failed and refused to pay the arrearage sums then due and have continued the default by failing and refusing to pay the required Joint Venture distributions in full to the date of the filing of this complaint. 16. As a result of Defendants' continuing default, Defendants are now in arrears in the sum of $64,000. 17. Plaintiff requests and demands that a judgment in ejectment be entered in Plaintiff s favor and against Defendants. WHEREFORE, Plaintiff, Jairam 7, Inc., hereby requests that this Honorable Court enter judgment in ejectment by confession in favor of Plaintiff and against Defendants, HNS Management LLC tla Country Oven Restaurant f/k/a Sahar Mater Enterprises Carlisle, LLC t/a Mater Restaurant Management and Country Oven Restaurant. Respectfully Submitted, CLYMER, MUSSER, BROWN & ONRAD, P.C. Jam . ymer, Esquire Attorney ID 27151 408 W. Chestnut St. Lancaster, Pennsylvania 17603 (717) 299-7101 Attorneys for Plaintiff VERIFICATION 1, the undersigned, as the authorized agent for Plaintiff, Jairam 7, Inc., verify that the statements made in the attached Complaint in Confession of Judgment for Ejectment are true and correct. I understand that false statements herein are made subject to the penalties of 18 Pa. C. S. Section 4904, relating to unsworn falsification to authorities. Aaq Nayna ankh Date: I V71 11 Pays 1:11] vekaad tam, Simnsch & Pkwcik 4/231200312.34 Pp{ break INDEX PAGE 1. Definitions ....... 2. Joint Venturer Entities --------------•-----.._:..---..............._.... 4 3. Operations .......................... ----- 4. Venture Distributions 5. Term .. 7 6. Taxes .................................. 7 7. Improvements ................ .................................... 7 Use o Restaurant ........................................... Maintenance ......................................................................... 0 Utilities ...................................•-•...............-•-••-•-• ......10 I. Destruction ................................................................. 10 1 Access to Restaurant 11 13- Insurance I 14. Assignment .......................•--......._............_. 15. Eminent Domain ...................................................... Parking .............................. ••---•----•••-_.... ..14 17. Hours of Service ............ -"--.... -------.... ----------------- --------------------------------------------------------------- Franchise Compliance ......................................... .. 19. Default by Restauranteur .................... 20. Default of Hotel ---------------------------------------------------- ••-•------------------------ 14 21. Estoppel ........18 Certificate...._.....--•---•------ --- ---------------------------------------•---... ....................................... Liquor License .......................... ................. 23. Fictitious Name ......... ---------- •......---•- .._....-••--.--••-•......20 24_ Inventory ............................ 25. Miscellaneous operations .................... . .. . 26. Employees20 ........................... ....... 27_ Joint Sales and Promotions ...... ........................... .................................... .. 2$. Environmental Hazards _... •-•---••-•-• .................................... ....... 29. No Brokers Certificate __...... 0. No Recordation ..----•• ....................... ................._....-••---•.................. ---•-...23 ....... ................ 1. Mechanic's Liens ............ .............•-•-•-----._-__----------.._....._._.--------................._._ . --- 23 32. Limitation on Authority ........ 33. Cross Indemnification ----------------------------•_ 24 34. Cooperation ...... ............... .................... .... 25 35. Remedies . ..""'."' ........•--.. 25 36. Captions-----•--•--• ................. ................................................... 2 7. Notices ....... ................. ... 26 ........ .--...................................... --. 38- Invalidity 27 39. Provisions Binding ............... ............ ---------------------------------------- - • -• ...................................................... 27 Mater Jairam Joint Venture - 428-03 40. Complete Agreement .......................................... 27 41. Construction ..................................... ................................. _ ....... 27 section Break (Watt Page, Mater Jairam Joint Venture - 4-28-03 .. ... . Fornlattnd JUTNT VENTURE AGREEMENT -- - - - ------ ........... .................. ......... oef T 1 1-f 3T'E R RESTAURMNT iNLUVAGEMENT and JAIRw1VI 7 ING T i ---.._ T THIS AGl~ EEMENT, made as of the Aa of -- 200 b and between 1 i IA UM 7, INC., Pennsylvania business corporation, with offices located at 1245 Hmrisburg T iit'• 1 Ike, Carlisle, Cumberland County, Pennsylvania (hereinafter called "Hotel") T AND T Fowmaftea: Lars, Tabs: 3.2r, HATER RESTAURANT MAN-.GEN ENT aP lvania_ ceamved+Hotat 1•+ 32• _- = i Foaaaaf.Led. Foot 12 A Mdafae Yith its registered office at 300 North Mountain Road, Harrisburg, Dauphin County, tlekf d: i'enusylvania (here matter called "Restauranteur ). i T T WnWESSYM CotAV2gY ovFr? arcs s : end WH EREAS, Hotel owns all operating rights to a hotel property known as the Fond: Font 22 vG Undaliu Best Western-Carlisle, situate near 1?xk 52 of Route I-SL along Route 11, Cumberland County, FonnwM d: Font 12 pt Pennsylvania, cons sting of a one-hundred and thirty (130) unit motel with a Banquet Hall and Lek Tabs: 32s, cmbered +11otat r+ 3.r •arious meeting roctms and a restaurant facility, including a lounge; Hotel leases the Property Dekftd: Page alts` PAGE 1 rom Beauty Sevn6 a Pennsylvania General Partnership cone sting of Nayana A 2 roiot vaarm+trTSot::e._e1 ' 7asanti J_ Parekh and Bharti M Shah; and I op-wiaw -st 4. Vaubm Di"pib,&M.$1 5.Tam_-n WHEREAS, "Hotel", and "RPCtanranteur" (hereinafter together called the Joint i r 71 & Lt=ofFertar.m_ gl ' 7enturers") desire to operate as a joint venture the Property, and which Joint Venture is to be 9 M °°'=O`-_QI 1. Da+m+ction ? 101 called" .,_-. Joint Ventura." ' 12 Amin¦to ? t t ________________.- liraaaanx_l ---- ------ ----------------- - - -- ----------- j t NOW THEREFORE, in consideration of the oin 14 131 1 fore gprcmises the mutual ]S.1Dounv,_.13 i 1G Pelvis-141 17. No= ofscri:e.1-n r c ovanants herein contained, and for other good., valuable and sufficient consideratiou, the parties Dek d; rule 700¢ F ereto, intending to be legally bound hereby, do now form a joint venture for the operation of the .COLEY overt nvc i I Dek d:awCO Property under the terms and conditions set forth in this Agreement, and for and in furtherance thereof do now covenant and agree as follows: 1. Definitions (A) HoteL• Jairam 7, Inc., a Pennsylvania business corporstion and one of the parties n this Joint Venhare Agreement .. o?tma: couoy a? ? (B) 12estauramteua Mater jZe, taurantNIU. fanaaement a Pennsylvania and n.taa: sne of the parties 0 this Joint Venture Agreement- (C) Roc•ms-. Individual units of the Hotel with sleeping accommodations and the nectmg rooms (od ter than the Banquet Hall). ,• LltkM* at"o (D) Banquet Hall_ The large meeting area room ( ]mown as "Mariposa" ). an additional room (also known as the )- an associated latcbca, restrooms and storage alas all as shown on Exhibit "A7- P Rest surant: The Restaurant facility including an adjacent lounge coR41? of approximately 6,3(0 square feet and including tic resuwm faculties provided for tie R gmn,,.r and lounge use allas shown on Exbrbit "B". (F) Property: The entire Hotel complex including the Rooms, Meeting Rooms- :3anquet Hats, Restaurant and the land on which they are located.. (G) Join: Venturers: Hotel and Restaunmteur- - octeaea: swcro (H) Joint Venture: The entity created by this Agreement in accordance with the t ecros hereoP_ (1) Agreemeni: This Joint Venture Agreement •..... ............. Dekb W: MA, J,*. J.W Veatue ' f Later Jairam Joirt Verrxae - 426-03 2 • Gairb? i . Joirrt Venturer Entities. re?somed: IM- t.elt Ir F- (A) Hotel hereby certifies that: it is a Pennsylvania business corporation, duly )rganized and validly existing under the laws of the Commonwealth of Pennsylvania; it has full )over and proper euthority to enter into and execute this Agreement and to perform its ibligations hereunder without violating or causing violation of any provisions of any Charter, krticles, Bylaws, oontracus agreements or laws of any kind, and the individuals executing this lgreement on behFlf of Hotel have full power and authority to bind Hotel; (B) Rest auraateur hereby certifies that it is a ,? dirty organized and validly = t msting under the laws ofthe Commonwealth of Pennsylvania and that it has full power and l rroper authority to eater into and execute this Agreement and to perform its obligations 1 ierevnder without riolating or causing violation of any provisions of any Charter, Articles, By- 1 aws, contracts, agreements or laws of any kind, and that the individuals executing this lgreement on behalf of RestA»*+teur have full power and authority to bind Restauranteur. I oyeratione. subject to the terms of this Joint Venture Agreement: (A) Restaurant: The operation of the Restaurant. Banquet Hall and liquor business and r he provision of all food and beverage services for patrons of the Property shall be under the c xclusive supervision of Restauranteur. Restauranteur shall accomplish this by: the hiring of • neteEed: i estan liars uci Bull and bar personnel; the purchase of food, liquor and supplies for the uatdod: t mi I' cstaur=L kannuer Hall and Property food and beverage service; the cleaning and pmntenaneee _ o.kftd; neresed:. gi repak of the Restaurant itn-' Banquet Hall and related areas used predominantly by patrons c f the Restauraut mid Banquet Hall such as restmooms-ill 3-3.pro?ided.iaPam --raph-9. he-einl the__I• ?, Mete lnkam lolnt Vmtwe F rater Jairam Joirt Veawe - 428-03 3 : naintenance and pi=hase, if necessary, of all fi<dtues and equipment which may in ?,u turar ar'; • tini i2 on be needed to supplement the Restauranr the prompt payment of all bills nevtred in the operation of the Restaurant and Banquet Hall and service of the products to be l xovided to customers by the Restaurant business and any other actions necessary or deemed l rnrdcnt in the opigon of Restauranteur in the operation of the food and beverage portion of the business of the Join Venture. Nothing herein shall in any way be interpreted to limit or prevent i he sak or service of food or beverages, including alcoholic beverages, by Restananteur to guests or patrons of the Hotel in Hotel Rooms or in portions of the Hotel facility other than the l:estatnr?t. • oetetse:r ($)'%(; The operation of the hotel business shall be radar rho exclusive supervision,._._-• : rune eon, xo ----------------------------------- ----------------- tx:iedne of hotel. Hotel shalt be responsible for all aspects ofthe management and operations of the hotel t 'asiness. 4. . Venture Mtributlen& During the term hereof, receipts of the Restaurant shall l c distributed as follows: (A) Cozrttureucing with the.Ja?t day of the calendar M M14 fogoajua the openingpf ; ithzr the Restaurant anLounge or the Banque[ Half or 8 months from the gwmencement )ate of the Joao V..nture ("Commencement Dale" i_ whichever is earlier (,provided the liquor l .tense has been ob:ained and Hotel has substantially completed all. Pre-ieu:le a¢reed exterior .novauons Resta u-anteur shall remit to Hotel a joint venture base distrrbut ion in the stem of ix Thousand Dollti s (56,000.00) per monthjn-}rew s. All otherproc Beds of the Restaurant and ar eE alt shall remain Restautmmteur s. tB 1 Corrnencln bn the ftrsI art j=arv of gaymert of the fry joint -ctnrre base neJebed: C D t..M. loim VeMnti ?md Dt1eEe?:dam belded:, Rermaaoewa.tr.11 r k m BoutajoiaW=34x bo ,SWA. is theft=OFCm ihomndFmAwdmd Do11-(31_SM )p=mM&ra6.eea O Detefea::mypaWmomhd gbe Fa-led 1 _(a>-gym Whhth. arc doe methane. -& netwd: amt Donated aommeaamaea:daa Detetad: _ _ if far mym+aa aha rh?,m u.rk orda ym:. ao tb.P.,.f Ea-v.ohae; dw op®ias eta. nor ft rta,aneemsmovet?AWgift(8) ..& .a- th. aommmAmaa:dr. ONO kt Va mr..Re ammom•dmtlmarm Eked. join warm bra &&4x6 m m t6 a -Mm TLAmdDoftw ' MAW) pcmoad<Bru=Boom-JW it u urilaiaa (wbirb ay ioehede the 1a..V P-I-' ' A Labr Jairam Joint Vetitltae - 428-03 4 Delabd: Meter Jaiam Jdd Vrnha. listrihutior (rom }:_c auurimteur to HoteL and wntinuine on each anniversary thercader during :ham iitia! ;Lint. >f ihi, ! ?cment. the venture di>?rihution r?R?-,<aurantcur tLI hlatcl,hall -rcrease hr Ow H-indred Dollars ($100.00) ter month for-The duration of the initial term The .ru < di-Lr utir,ns shall he paid no later then the last day of each calendar month- in arr.. = fQ If tlis Asrecrnent is renewed for a second term Nears 6-10). the monthly joint gage venture di-gribution under Mersph 4 (A) sball be $6.500.00. Dlus a sum eor.taJ to )ercert of the punx ve monthly increa4e of all utlluies and real estate taxes during the ----------- ------------------ ----- preceding five yens, and during the third term of this Agreement (years 11-15), the monthly oint venture base distribution shall be increased, based on the cumulative increase in utilities md. teat estate taxes calculated in the same way as the increase over the $6,500.00 base hstnbution was calculated for the years 6-10. 3'.p?o ?pY space rental fees for the Banquet I ------ - ---------- - ---------- - ------- =tall shall belong exchrsivety to Restataauteur. 5_ Term. Dektac. RavnaaotbxMitmd g crt=dm meal t+ With the oirth OeO ' a&-do Mwmavmag du ad e Ed-im tme7M htimee¦the 1?>ara i.apeoaiccel.4 the liquor l ioena Raetar.ds:,ttetl °p°:b. tete? and y.y, peyna ? trahnd-smbWx= o, A-l tithe taecedi4 p¦wWhIfIbr=•t..tw R-UUMeeeur Let to qpm th. kar o P-Wed hmik Hddmex etia W. ??.lea>e ?? ? th. With Obou"M orm.peyeau -(?l-Com®em? mehe5ai :ter atds ea?amemu dde ,md?msao edtem'sste?r d -AW Amts the z0fid born ofd. AQeneret do V4OMm &Mhd oo boa Res-xw-w Iol3atd A-I bmw. by oe. xt?.d t? (sr an w! per movh fortbe AzSdM ofthe mtidmoa dey ofa.*c.leoda ?t madp®oa • (D)-If d ftmemmt sreoeecd &r e +?adt®(yaa6lo?msmonbly joithu. naWad onao10 p mWmrh 4 (A)!h 1 S43 rM plebe. ' '?'°q?ta?elafthhie . dios>bntoourrapteea>mdhyth: (A) The initial term of this Agreement shall commence upon 200; °?i0e1?peC9r'° DaktoL o- x x Co+fineat.Date } andLeud on 2005 dteHeoquotHello t k _ . ? etrdro y tar tae ®SmAlY? forh,?h eeewit dA (13) Pro tided that Restauranreur is not in default of any of its obligations hereunder, em krepeyw=&(W=mt for %mdey atmi p my,hea-."a m ore poor ? and >a the heaera acaoml Zesulurctnre s is hereby granted an option to renew this Joint Venture Agreement for two (2) .. --------------- -- (F additional periods of five (5) years each, with the same terms and cond tions? as set forth herein, Dderaetk Auam t. MM nelew: eh.u , accept for the joint venture distributions, which at the option of Restauranteur shall be subject to netaeea: poly 3r, zom. i enegotiatmn at that time, but otherwise-hall be as stated in ParaVenh 4 atxo?-e I2ezatuattteur ()eletstR.ecsuxa - ----.T-?. -----..R--..-- - -- uateaed: oat Re>teurm[ ha(] notify Hotel nt writing six (6) months prior.ta the expiration.ofihe originaLttnd an--------------------- Dek2C*b Mft&M t later Jairam Joint van lure - 4-28-03 5 1 DaMmad: Meter J&M Joint Vatme additional term of his Joint Veature Agree tent of its intentions not to wMend this Joint Venture 4greement or of iLs desire to renegotiate the Joint Venture Agreement distr, iIxrtion, otherwise, the n.r.eye: ?r;u? nacusion shall be ;uAomgtic, with the joint venture distributions set forth4 Parat?_anh above. ------------------ Fonym?a: rodent Lett c r, Fid j 6. Ta3m t ttae: W Daring the term hereof; Hotel shall be responsible for the payment of all real estate taxes or my altemative tax imposed by Cottttty, Mtmicipal or School District wAboritics in Hen of real :state tansy on the Property. 7. bus zovements. Tarring the tam of this Agreement: DraklW: t;?,.?,? (A) _jp 1 shall be responsible for, reoovaiions to the Battguet Hall, and Q.treedr any D?sd: ? riot itde?e wary -ze-st3uranicur shall be rMgusible for all renovations to the Restannmt (Improvements birt ill oaielef: =y l Bans for Improvennents shall fast be approved by nth parties. -- oaie.& Heat (B) Such Improvements sbali be in conformance with all federal, state and local laws, i,rdinances and regulations- Restaurant= shall be responsible for securing all appropriate t?at.teea: ,tm. i pprovals. The cost of rose Impivvemeafs?onaisCa? o ,k renovarions to the R tairauto t asd;.:,tr b, tom. --...----- --- •--------- by 1 beaiayir a and f a.n:ct„nc of both the Restaurant andancluet F=shah be borne by tom. v Dskbmk ruts :cataurantzur, orov'ided that from the joint venture base dish-ibtrtion provided in Paragraph s , - -- : ?;? ?, ? DekAnd otd ;estaurantet:r.may teeuct a credit up to $1,500-00 per moinh toward joint veutom distilut;nns iteleted: it by Ra=mw r -? cue Hote to_a maximum cumulative credit of $150,000.00 on account:of conAnbcdons------------- ---- -------- --------------- ------- --- ------- ----- - - ------------ - DdeDed: ? ?n,?m, w de r :nov°ation and ac t tisition costs for ch Inprovements that are haIYai d not®dm.dtabdr?a PRestatranterr - ------------•------ f )r items that MI) n:mHm as part of the Property- All such items shall remain as part of the F roperty at the termination of this Agreement .............. ..........-.--..___------- - DeieLed:MA-J.*,iddVerMe Auer Jairam Joirt Verdua - 428-03 6 (C) Restauranteur shall furnish to Hotel all certificates and approvals with respect to work done by Restaurantcar that maybe required from any authorities for the issuance of a Certificate of Occi-pancy. (D) Restaurant= shall, at its own risk lawfully erect a sign or signs, concerning the :)usincss of Restau_-mew, on the exterior of the Property, and agrens to maintain said sign in a good stare of repair- and save the Hotel armless from any loss, cost or damage as a result of the :action, maintenw ice, existence or removal of the same, and shall repair any damage which may gave been caused by the erection, cxistenoe, maintearance or removal of such sign. All signs must )e approved by the Hotel, and the location of the same must be approved bXtbc HoteL Upon I mca Ling the Prope-ry, the Re nteur agrees to retnave all signs relating to the Restaurant and I epair all damage caused by such removal (E) Upon vacating The Property, ownership of any ]improvements sball remain with he HotcL Any furrdtare, supplies and equipment purchased by Restaurantem• and not reim}urmd i or credited) by Hotel or otherwise: received by Restmrautmw as part of the Property at the *mme;ncemeut of this lease, and which are not attached to the Property (whether in the ZaAawant or B4xl4q tiet Hall), shall remain the property of Ii aurai tew upon the tarmnmation of -bis Joint Veuturo-Agreement (F) The Restauranreur shall not make, or permit to be made, any alterations, i mproverne&s or additions to the Resisurant, or any part thereof, except by consent of the Hotel, vhich consent shal- not be unreasonably wiibbehd Any alterations, mrlxov=waL y and additions, l urnihue, fixtures and equipment, whether supplied by Resteauantew or Hotel shall remain the sole and exclusive property of Hotel, except as sMfnrth.nasnbparap!rph7-(E)-hcreQ .All-•--•_------J. tn•?+:Marar? nrativaw.r? P later Jairam Jokt Van vre - ¢2903 7 1 : atcndions, improve=cnts and additions shall be done in compliance with all local, state and ederal regulations and the requirements of Hotel's franchiser. (G) All decorations that are currently on the Restaurant Property are available for use I q Restauranteur. la the event that any of the current decorations on or in the R azx-ant are not i :ti ,zed by RestaunmteuG Restauranteur shall so notify Hotel and Restauranteur shall remove uch items from the: Restaurant so as not to cause any d wnage to the Property. The removed i -.cros shall be disposed of or stored at the sole discretion of Hotel. 8. Use of Restaurst During the trim hereof. the Resauran2 and Banquet Hall hall be used and o.;cupied primarily for the operation of a family style restaurant, lounge and 1-angoet operations together with 5mctions related thereto - All aperations of Rcstzmanteur an the Property shall be conducted in such a way as to be conducive to and promote a family friendly r tmospbere. R.estauranteur shall conduct operations so as not to create an atmosphcna that be c onducive for the use of illegal drugs or conduct that would be generally offensive to family 1 •atrons of the Hotel or that would otherwise damage the mpvtation of the Hotel as a family f -cadly facility- This specifically precludes activities such as a go-go bar, rap or acid rock type r tusk or any kind of performances or activities that by law must be limited to persons over the e ge of eighteen (181 or older. 9. Maintenance. Notwithstanding any other provisions to the contrary during the r• = hereof the Jobt Ven=crs shall be responsible to maintain and repair the Property as f )llows- - uarftd: Mader Air= Jdnt V=Ue ' 16 afar Jairam Jdnt Venture - 428433 8 (A) HoL:l shall be responsible for the (i) repair and maintenance of the structural .;ompor,=ts of the Property (consisting of the footings, foundation, stnrefirral steel, exterior )nek, masonry wort and the building root), (ii) repay and restoration of the interior of the 'rnperty damaged is a result of damages or repairs or maintenance to the Property's structural ;omponents, and Chi) repair and maintenance of the HVAC svsx m-. and fiv) repair and naintenap-ce of all utility lines on the Property, except those inside the Restaurant and Banquet -call, and nm buried or Inca 3 (B) Resiauranteur shall complete the Improvements, constructed m acoord4nre with he Plans of R:estauranteur as set forth in paragraph 7(A). Durmg the term of this Agn=wut, any epan necessary to the equipment, ftxtutres and property comprised of the Restaurant, Banc}uet Sall and related areas under the responsibility of Restaurmleur which cannot be attributable lirectly to the acticns or regligence ofHotel shall be repaired at the cost and expense of 2 anrnnteur. (C) An Inventory of equipmmemt, finnittue, firnishing% utensils and supplies which are he property of Hotel and are being provided by Hotel for the Joint Venture is attached hereto as :xhibit "C" and. incorporated herein by reference. Resaur-anteur shall maintain repair and eplace all such items listed on Exhibit "C' and at the termination of this Joint Venture shall edeliver the same':o Hotel in the same condition as received, reasonable wear and tear from . )rdinary usage ---pted- (D) Upon completion of improvements to the Property by Restaurauteor, the attached -xhubits will be aseaded to reflect any changes- (E) Resiauranteur shall berespormble.forall.repair,-upkeep and maintenancein-tbe----------- o"*0acMOW ji unJdntvedwe I War Jakwn ic&t Venhae - 4-28M 0 1 t estaurant and Banquet Hall and if R estauranteur serves food or beverage in any other area of he Property, Restauranteur shall be responsible to clean such area and return it to the condition hat eciste prior tu, such event- P Although Hotel shall generally be responsible for maintenance of the parking weas. Restauranteur shall be responsible to remove debris and trash and otherwise to clean the m&ing lot after each use of the Banquet Hall or any special events that cause any large number if patrons of Restauranteur. (Qr The parties acknowledge that the responsibilities for maintenance, repair and mprovements as sd forth in this Agreement are p?rnaiscd upon the configuration of and the aciilitics upon the Property as existing at the time of the exeartion of this Agreement and after ;Ompletion of the improvements- Should the configuration m&orfaeiil ies be changed naterially subscrlamt to the execution of this Agreement; the parties will negotiate in good faith n an atteWt to rannsider the responsibilities and proportionate shares for repair and naintenance as set forth in this Agreement. In such event, the exhibits hereto will be amended to xoperly reflect the areas of responsibility for repair and maintenance by each party- 10- Utilities. During the term hereof: (A) Hotel shall be responsible for the cost of all utilities used upon the Property, ncludiag, but not necessarily limited to heat, gas, electricity, water and sewer. ($) The parties shall secure separate contractual anangements for Hotel and testauranteur for tae removal of refuse and garbage from their respective areas of responsibility if the Property. Gerdes: 6latw Jairem Joint Nadine, f Aster JaWWn loud Vwt w. - 4-29-03 10 11. Destruction. If during the term hereof: (A) The Restaurant and Banquet Hall are destroyed by fire or other casualty covered :,y any policies of insuuance, Hotel in its sole option, may replace the Restaurant and Banquet fall with restaurant premases containing space equal to that of the Restaurant and Banquet Hall, ind of the saln4 general type of construction or better, the same to be completed as soon as I iossrble, but in no •-vent later than sic (6) months after such destruction, and provided that within lay (60) days after such destruction Restauranteur executes an Addendum to this Agreement, vhich Addendum_ `hall provide that this Agreement shall have a term of not leas than a lltll three (3) years after the rxonstruction of the Restaurant and Banquet Hall In the event of such a total t lestrlrboa of the Restaurant and Banquet Hall, venwra distribt=n under paragraph 4 hereof s hall completely abate from the date of such destruction until possession of the rebuilt Restat nd Banquet Hall is delivered to Restauranteur. Notwithstanding the, aforesaA it is fiutber t greed that if the R=ar rwr and Hargett Hall am totally destroyed by fire or other castralt3; t ither party shall have the option to terminate this Agreement in the same warm as if the Term c f this Agreement Lad run in fall; either party shall elect such option by giving notice to the otbm i i writing within th by (30) days after the date of total destruction of the Restaurant and Banquet l tall-• and it is turrlxr agreed that in the event Hotel determines not to replace the Restaurant and ;:anquet Ha,l andestat*rantmr has not ter received the full benefit of the credit provided in ara°raph',; F) atx re U= Hare shall oav to Rescaurmteur so much of the insurance proceeds r xzived as ara ! ?.l to the remainins credit due Restauranteur. (B) If the Restaurant and Banquet Hall are partially destroyed or damaged by r"", c f which less than twenty (20%) percent of the Restauranaand Banquet -I&Ws space.isJendered Ma-Jut-,,m Jd Vee?ue? P- ater Jalram Joint Venture - 428-03 11 1 musable, venture distributions under paragraph 5 hereof shall be reduced equitably in proportion o the space of the Restaurant and Banquet Hall that is unusable until such time as the Restaurant and Banquet hall 5 hall be filly repaired or restored: by HoteL 12. Access to Restaurant. Restatummeur agrees to permit Hotel or its agents access o inspect or oramine the l? airant at reasonable times doling the term heacot in conformity with the terms of this Agreement, and in a manner so as not to interfere with the business of the 13. I,mlauranm During the term hereof (A) At us own cost and expense, Hotel shall procure and conbnne in forge general and )roduct liabUy in adance covering any and an claims for injuries to persons o==mg in, upon n about the Proper ty (excluding personal mjury and product liability claims in the Rest xant and Banquet Haft), inchiding all damage from signs. glass, awnings, fbd im and other pputtmanccs now or hereafter erected m the Restaurant and on the Property during the term of a his Agreement- Ali such insurance shall be at all times in an amount not less than $500,000 for i ajury to any one pcxwn and not less than S 1,000,000 for injuries to more than one person in. one r ccident, and 550,000 in property damages with a S2 hEtion umbrella inset a noe policy in a ddition thercur. (B)The Cost of all casualty insurance for structures on the Property shall be paid by I totel but each parrs shall be responsible for appearing and paying the cost of casualty msurance f x contents under their respective jurisdictions. I •---------=------------------- ------ - - -----(-id.es???tara ?rnJontvarwre I it rater Jairam Joint Veraure - 428-M 12 (C) Rcsi auranteur, at its expense, shall acquire and maintain dram shop liability anwance with respect to their service of alcoholic beverages upon the Property in a minimum ;overage of Fivc Killion Dollars ($5,000,000.00) per incident. (D) RvIauranteur, at its expense shall acquire and maintain primary msurz= (overage for personal injury and product liability coverage for all of its activities on the Propmty in an amount of mi less than $500,000.00 for injury to auy one person and not I= than :1,000,000.00 per accident and shall also be responsible to insrue all of its personal property onterds against aa7 land of loss. v (? Restaurantmw and Hotel each sball be responsible to mamtak and pay all costs :3tributtd to workes compensation insurance for thew own employees as well as all payroll i axes and insurances for said employees. (F) All insurance: policies to inane the Property, the Restaurant, and the comseafs ' hereof, insuring aFxinst casualty loss, and all liability insurance policies carried pertaining to the i se and ocarpancy of same, shall contain Waivers of the right of subrogation of or against the :pint Venturers, their heirs, administrators, successors and assign. (G) The Joint Venture, each of the Joint Venturers. and any mortgagees of the Property, shall be named as additional named-insureds on all inv%mrnce policies. (ll) All insurance shall be written with a company or companies authorized to engage i i the business of g _veral liability and property insurance in the Commonwealth in which the l ropcrty is located Each Ventura shall deliver to the other a copy of all inam,.icr conizacts and e Certificate of Insurance, which shall name the other Venturer as additional named insrntd and bass payee, and evic,ence that the contract premium has.bempaid..All-Certificates of_IamxFmx-----• 4 nor tasr?,r toed vamee t<aterJetramJolrt Venture-428-03 13 1 Mall imhtdz a provision that same may not be canceled, except upon thirty (30) days prior xna= notice to bath Hotel and ReAsuranteur. In the event a Venmtrr fails to furnish such -olicics, or fails to continue the sane in full force and effect, the other Venturer may obtain mxh asmance, and the premiums on such inurance shall be deducted from or added to (as applicable) the Jour Venture Distribution due Hotel by Restarnenteur under paragraph 3(A). (I) Neither Venturer shall knowingly violate or knowingly permit to be violated any tf the conditions or provisions of the policies provided for bream and shall so perform and atisfy the requirm ents of the company writing such policies that at all times companies of good Landing neasonabb, satisfectcay to the other Venturer shall be willing to write and/or continue : itch insurance- (J) Upon execution hereof, copies of all iostuame policies required under this raragrrph 13 shall be provided by each Venturer to the other, as applicable. Thereafter, within, eu ( 10) days alley the expiration of each renewal period for a particular policy or policies, r:vidence of said rmcwal reasonably satisfactory to the inn-renewing Venturer shall be Provided t bereto by the Venturer who has renewed the policy or policies in question- . 14. A.ssi¢nment a nam coveaants_and_agrees no[ to assign this lout Ven4me --- = 4reemer3t or to sat :)Iet the whole or any part of the &o?rtv--or to permit any other person to -----•••.-•. Detemnd: Saga t occupy same witho tt the written consent of the o[hzr pare fast bad, which consent shall not be ----------------------------- u nreasonably withheld 15. Eminent Domain. If during the term hereoft (A) In the event the Property or any part thereof shall be taken or condemned either --------------------------------------------- -- Dalebsd.MatsJakarl;A QVmWree F, later Jairam Joint Verdure - 428-03 14 ,PrT .1walle or twporarily for any public or quasi public use orptaposc by any competent +uthority in appropriation proceedings or by any right of eminent domain the eomp_ ,mtioa sward in such procuuting shalt be allocated as follows: (1) damages for business loss or , ;Dnsmpx niial damages to the Restaurant and food and beverage service belong to Restaurenteur, 2) damages for business loss or consequential damages to the Rooms belong to Hotel; (3) any ?ondenuratioa awm d for fixaures and other equipment instaIIed by Restatuaatm r shall belong to testa:u anteur, but only if such award shall be in addition to the award for the land mad the xrilding (or portion thereof) compromising the Property; and (4) damages for the taking of the and and buMmg 1-clong to Hotel. Dekhmft W (B) If 2:x°10 or more of the Ptv or 2WA or more of tbo P + estsnreatpemiscs shall = ?': ?e taken as aforesaid, then this Agreement shall tcnate and shall become null and void from he time possessior. thereof is required for public use and from that date, the parties hereto shall )e released from further obligations hmmimder. la the event less than 20% of the Property, or _a/o of the Restaurant space, shall be so taken or condemned, then Hotel, at its own expense, fiall repair and res.ore the portion notaffected by the taking and the minimum rental to be paid )y Restaurantar sfmll be equitably and proportionately adjusted" FonnatLed: Undet9ne ? 16. PTrimt., , Parking on the =tire tract of land comprising the Property shall be - ( - -------------------------- available for customers of both the Hotel Rooms and Restaurant portions of the Property. Hotel . and Restauranteur shall advise and control their employees to park in areas specifically .lesignated for employee p-king by Hotel. ' .................. -•--- DsJeRd;MdQJa4amJdrdVedurt Mater JaUam Joint Venttre - 4-23-M 15 17. Hours of Service. During the tam hereof; Restaurantour shall provide food and xvcrage dutiug the mini miro operating hours for breakfast of 6:30A-M- 9:00 Ahf and for 3inner,from 6:00 P._Ivt -.1000 P-U - n(A)- t 18_ Fraochiee Comutian Restataanteur to _-____ abide, and be oct -("? o all rules, regulations, inspections and requirements of any franchise obtained for the Property 3y Hote yid that any cost of same in excess of $1 000M veer of the Term shall be xedited wainst Jo!nt Venture distributions due to Hotel from Restauranteur. 19. Defitwlt by RexLiw ur. . Dalesea_ _(?) Rr tarrMiteur. - ------------------------ (1) Does not pay m fitll when due and upon five (51 days written notice any and all Venture Distnbutions or other mw herein agreed to be paid by Restauranteur, or (ii) Violates or fails to perform any oovenent or agreement herein courtaiuetl, and fails to are any such violation with thirty (30) days prior written notice thereof by Hotel; or (iii) Vacates the premises or removes or attempts to remove or manifests an intention to remove any goods or property thereStnm otherwise than in the ordiiary and usual course of business without having frost paid and satisfied Hotel m full for all Venture Distribution and other charges then due or that may therta$er become due until the expiration of the then current term, above metr:ioned; or i I 1 titer Jakam Joirt Vemae - 428.03 I ------------------------------------------• - -•---•{-idased:Mhta larramJatr?tyermae 16 (n') domes insolvent, or makes an assignment for the benefit of creditors; or if I a pe tition in bankruptcy is filed by gestauramte ur or a complaint in equity or other protxedings forthe appointment of a receiver forRestauranteur is filed br Rea- suranteur; or if proceedings for reorganization or for composition with crex itors uade? any state or federal law be instituted esta ?ta0`?: °"?` by ? __-- ?ranteur, or if the •-". real or personal property of Restaiiranteur shall be levied upon or sold and such ignvairs Rest aurantemr's ability to perform hereunder, or (v) I 'ails to pay any taxes due including, but not limited to, income taxes, 1 nnerrtploymeut compensation tsars, social security and medicare taxed sales taxes or any other state, local or federal taxes which could result m a lien against any assets on or related to the nekeee: a Property s would eliminate or hinder the abilf . of Hotel or Restammnteur to acquire or retain any licenses or pe ants or other operating arthonzyrelated to the Property- Thereu n: Dateted: ---------------- -- ----- ---------------= ;At the-u1ition ofHotel, this Agreement and the teams hereb)+ created shall - oeteseae - . (1)- FontiWdandait telt deteimine and become absolutely void without anyright on the pan of ResGauranteur to reinstate this Agreement by payment of any sum due or by other Perfc -moaner of any condition, tc m, or covet broken. In the event of any default as above set forth, H o°TII s?? otel, or anyone ailing on otel s behalf -- - - -------- - otzl's o ion. - Del.oed:$ornJS ?? ----•-- •--------- (a) May enter into a new joint venture agreement with such person or persons as may, in otzl's discreti °°+ rtor?s . ".I?. _--_ on, be best?Any_such.ne?aca WaterJairamJaintVerrt,ro-42803 gTD?nentShekl.be-Without_---..._ d:MatarJ®ramJdntVerdwe ---•-- l7 prejudice t0 IU[?)i claim - -•-•---•-?!g?u>st Restauranteurfor-., ....... Ctual da111. ,and shall, De?rllsd: HOTFZ.S undx no circumstances, release Restaur ante-w from liability for such damages arisng out of the breach of any of the covenants, terms, and conditions of this Agreement, which damattes shall in all e?•ents be redueed ba• the amount of the unu:,ed credit if any under Paragraph 7B1 above; (b) Ivfay proceed as a secured party under the provisions of the Unifor x ? m da Conwnercial Code against the goods in which Hotel has been granted a security )->o?,d Qom` jry F intarst; - (c) May have and exercise any and all other rights and/or remedies granted or by HOW i$°°"°"M'''m °d °g., s , .a ?T ?.3odgnrtbM allaxcd by any e6stm8 or fi== Statute, Act of Assembly, or other law of this vtmd+pi?t??r mdr.r Aftsariz=WA =VOW?S start; and A.r adcarccQ af?(,arddrt.eddbgptirtircd f °nd?ar lh?}tOfe) ys1 (d) I have and a=t= any and all othw rights and remedies contained m thu ? fO R a for ? °r Agr.xment. rofsll V.mueDY?m'bum, ba?m3 . vC_?.A tL°°'v[P?k mdQdl. piwteom f .------.._ Restaurantear covenants and agrzes that if this i -_- tI ?ar? ? ??:?s?J•?vQ?`•a I rw?Qr roe )cause of condition broken d uriiig the tee of ibis A greement or any renewal p ? t?rg aaae...d mm or ension -hereofand/or whet the term hereb L ?`? 7 r 7? y muted or air exte W"rEba•o[.s.sa..imo.ci:w.i,.L ??`?b0o°°s"'d+a? ?? y nsion tbaCsO y ,hall have expired)tl?, n• . ®?V ? C_ L 1- `_' . CIld in that event, -o' ?• may cause $ jndgL'rJeQt in ejectment to UG e... ?.. my g gainstRestaurmt the Pmvki d Df ? " ..* .V C f evr arina-3--m d-md?r or possession of the Restaurant, and for that purpose Restenrmmteur hereby authorizes and .ab.a ¦ a-sp `-U'i"? df.e ?:mpowers any Prothonotary, Clerk of Court or Attornry of any Caurt of R d Pa (sx) ard* run.mouo: of Holm's aha.,?°- Xeid- 6° wit to 66 W. m' ecor to appear for rm?" 9D t-,.ri.,.m ear orra Restauranteur and to confess judgment against Restauranteur in Ejectment for 1o on Of tbie r'?°'? > .b<a ate. m,, b }test8urant, and agrees that Hotel may com r y a.. q MGM d,...C but r.eri.. .pUft mence an aciionlnnsuant to PennsyhTania Rules of Im* my j"Wy,-= be alq. k PC, } Yocedure No. 2970 et seq_ for the entry of an order. ID Ejectment for the melon of the (3o)4g?.amo" X&-tb-ybs+®. d ,. r..a °.aa m. CgiMtj..afd.. Iestaurant, and R xauranteurfu rther agrees that a Writ of possessio ? ? rdiat;? cr.mv ?,,?MW4 tew6n W'°""1Of 1 n pursuant thereto may issue I------------------ --- ----------------------------- Fhater •hiram Jarrt Venl tre - 428-03 - 1 Fon?.f?. Ldt cr 18 DeIftd. aterJafamJCW*vatoe " orthwith, for which authorization to confess judgment and for the issuance of a writ or writs of I :ossession pursuanc thereto. this Agreement, or atrue and correct copy thereof, shall be : efficient warrant ]2estauranteur fiatber covenants and. agrees, that if for any reason whatsoever, Rer said action she ll have commenced the action shall be terminated and possession of the Itestaurant shall remain in or be restored to Restauranteur, Hotel shall have the tight upon any ubsequent default. or defaults, or upon the termination of this Agrccracm as above set forth, to c ommence srrccessi ve actions for possession of real property and to carne the catty of successive j Jdgments by confession in Ejectment for possession of the Restaurant. In any procedure or action to enter Judgmew by Confession jn Ejectment for possession ? . E f real property, ifp. true copy of this Agreement (and of the truth of which such affidavit or --------------------------------- - --- - --------- - -------- e verment sball be sufficient evidence) be filed in such procedure or action, II shaU not be r acessary to file the original as a Warrant of Attorney, any mile of Court, custom, or practice to tie contrary not withstanding. Restauranteur hereby releases Hotel, and any and all attorneys who may appear for F rstsurraateur, tiom aU errors in any procedure or action to enter Judgment by Confession by irtue of the wauams of attorney contained in this Agreement, and all liability therefor- Restaursnteur fi r then authorizes the Prothonotary of any Clerk of any Court of Record to issue a hit of Execution o r other proeessy and further agrees that rest estate may be sold on a Writ of F xecudion or other fTocess. The right to niter judgment against Restauranteur by confession and to enforce all of the I o :her provisions of this Agreement herein provided for may at the option of any assignee of this DebOW -EWMm yOtto ? DOjhvftbm=a.a rd.ar.t.omtob. fildm.ueb.rdm daSidarit or A.®mtd,6eionmu ib daFaok armammo.d?. modtim P Crowe, do bffilr 1m. and BMW 1. d- O1sy olj.? by mor,.:..y ..oh ' .fSaui?oradmet.hn b.mdoaro a id....ot...b$,a,d S k, Owddem peeee.4 cr =UK Ma if Agreement, be exercised b an assi , ? ° Horne s Y Y gnee of otePs right, title and interest in this Agreement m - ---------------------------------------------- hs,heror their own name, any statute. rule of aourtrouS,,,.,r:practice.to2hezonttsrg.... .......... -.• oeteted:MaW ,I,,,ry,tv„hse, M afar Jairam Joirrt Verttire - 428-03 19 1 iohvithmading. All of the rtanedies bereinbefore given to Hotel and all rights and remedies given to it by aw and equity shall be cumulative and concm=t. No determination of this Agreement or the aping or recoverin.; possession of the Restaurant sball deprive Hotel of any of its remedies or - t7?ekM: ?'?I+irii?mdath.t? tctions against Restairantmx for Venture Distributions due at the timr,nor shall the brmgmg of = , m fny action for breach of covenant, or the resort to any other remedp herein provided for the i ecovery of vmume distributions be construed as a waiver of the tight to obtain possession of the premises. 20. Dd:rnlt of IioteL oet.ccd:lnno .?.oc&a I If Hote D&kUd: b. d-Ba 'left ddwk in em ------------------ Li]'violates or fails to perfortn env covenant or Agreement herein contain and &P (or Mch DD) &.6880 =Si*wtoMMby fails to cure any such violation with g?M (30) davs prior written notice thereof R-W-= =xVGC*iMBMM.S t?R X v or Q f 3ecomes nisolveriL or makes an assignment for the benefit of creditors or a t ion in banknxm cy is filed by Hotel or a complaint in equity or other proc -,a fines for the avpointu=r of a receiver for Hotel is filed by Hotel: or if PLO-O'edines for reorganization or for composition with creditors under am state !jr `e3eral lain be institutai by Hotei_ or if the real or personal properri? of Hotel :• all be levied upon or sold and such impairs Hotel's ability to perform hereunder or t iii) Jails to pay anv taxes due including but not limited to income taxes uncm-R-10 went eogimatiop eaxes social security and medicare ra-xes sales 1-..-.. - ?Imd: lde?r lefrem Jdn[ Valtiae katarJa•:ram Joirt Veertle- 428-03 20 tac? or anv other state, local or federal taxes` which could result in a lien at?ainst auk as-ets on or related to the Propety as would eliminate or hinder the ability of Hotel or Restauranteur to acquire or retain any licenses or permits or other gpV-ating authority related to the Properri•. Thereupon: At the option of Restauranteur- this Agrreement and the terms hereby created shall iffanine and beetrme absolutely void without any right on the part of Hotel to reinstate this kgt Bement by ppLinent of anv sum due or be other performance of anv condition- term or rovetant broken [reserving Restauranteuz's right to damatres for such breach. specifically .ncluding but not limited to any remaining unused credit due pursuant to Paragraph 7(B) above In the event of anv default as above set forth- Restauranteur at its option, may cure any such iofault and credit the cost thereof against any Joint Venture distributions then or thereafter due i•om Restauranteu • to Hotel- All of the n:rnedies given to Restauranteur and all rights and remedies given to it by law and equity shall be cumulative and concurrent If the holder of record of any mortgage covering the property gives prior written notice to Zestauranteur of the address to which notices to such mortgagee are to be sent, then 2estmantew shall give notice to such mortgage holder .simultaneously with any notice given to iotel to correct any default of Hotel, such mortgage holder shall have the right, within thirty (30) gays after receipt of said notice, to correct or remedy such default before Restaurant= may take my action under this Agreement by reason of such defauiL 21- Estoppel Certificate- At ime 16th in ten. LD- days. of-a 1t raM r Dew: Maw Jeiam Jdnt venwm !dater Jatram Jart Ventura - 4-2&.03 21 herefor, Hotel and Resteuranteur shall execute, acknowledge and dchvcr a written statement xrtifyiag that this Agreement is unmodified and in full force and effect (or, if there have been modifications, that the same are in full force and effect as modified and stating the modifications), anc. the dates to which Venture Distrihutions and other suns hereunder have )een paid m advan:e, if any, it being intended that any such "ement delivered pursuant to this 3aragraph may be relied upon by any prospective purchaser or mortgagee of the fee of the ?Mperty- 22. 1I guor IAMMP. (A) Hobd and Restmaanteur shall rom t intly apply for, and diligently O rsue the catance of. the Hotel Retail Liquor-License, Amusement Permit, Sunday Sales Permit, and i)dended Hours Permit ("License") for the Property, and both Joint Venturers shall be named on he License- All fets payable to the Pennsylvania Liquor Control Board and all fees incurred vith respect to services relating to the Liquor License, including reasonable attorney's fees octwred in the acquisition, transfer and renewal of such license, shall be paid by the 2estataanteur. The address used for the Liquor License shall be that of Hotel and all notices ium the PA Liquor Control Board, or other government agency, relating to the liquor license Dsfeted: ?e.m,,Q-? :hall be addressed to Hotel Upon the termination of this Agreement for any,Inarerial breach by . testaurantaur cr ih.- M- iration of the Perm and am extensions Restauranteur shalltransfer all of its right, title ant. interest to such License to Hotel for the consideration of One Dollar ($1.00) :and hereby grams o3 Hotel an fimmabla, limited power of attorney for the purpose of exomiting uch documents as are necessary for the consummation of the transfer of its interest in the license 1:) Hotel - • oeteeea- Mater Jaram Just v I F Teter Jairam JoBrt Vamve - ¢2843 22 (B) Rcsrauranteur shall appoint, subject however to the prior approval of Hotel which rpproval shall not be unreasonably withheld, the "Manages"' with respect to the License far the 'ropetty, who will be the PLCB approval license manager for the Joint Venture and shall be ad from the Restiturmt and Banquet Hall receipts Such right of appointment shall include the x fight to remove the existing Manager and appoint a new Manager, subject to the same approval I room of Hotel. P-ovided however, if that the Restaurant Manager becomes unsatishet ry to 13otel because his conduct or the operation of the Restaurant or Banquet Hail activities impacts negatively on the B:otd's business and/or reputation, upon Hotel presenting Restaurant= with rrbstaut;al documentation of the same, Restavranteur shall terrmnate and replace such Manager. he Manger shall be in charge of the general opeaatiDn of the Joint Venture business as it i elates to all of Res:auranteues operations. It is anticipated that Hotel will maintain a separate r oanager, rzspo?ible for management of the Hotel operations and the remainder of the Property i tot under the contn>l of Restauranterr. (C) Hotel and Rests ranteur each agree to abide by the Pennsylvania Liquor Code and t be rules and regulations of the Pennsylvania Liquor Control Board with respect to the sale of r leohohc beverages upon the Property. M) Eth,r pan may terminate This Agreement should the License not be obtained -it hin tour (-l) rrnonths of the Commencement Bate 23. 110tious Naaua The Joint Venturers shall operate the joint venture under the oet<.em f ctitious name Joint Venture" which upon the termination of this Agreement shall : swco --- ---- ------------------------------------------------------------------ . --------- ------------------ r.main the sole and exchuive property, of Hotel'-The parties hereto.agree to Execrrle any. andall ..-_ ---- {-ae ea: Mater Je?am J vmturz !« ater Jeirem JoW Ventre - 428-M 23 documents necess:try to effect such fictitious name registration and for Restaurant= to be removed from suns registration upon termination of this Agreement. . 24. Inv entory. All inventory of china, glassware, silverware, linens, utensils, unattached fumit m. f inures, equipment and other personal property upon the property shall be the respective responsibility of Rts<aurmteur and shall remain the property of Restaurmicar at the termination of this Agreement Notwrtlstanding the aforesaid„ any inventory of china, glassware sdverwsre, linens, utensils, unattached furniture, 5mires, equipment or other personal property upon the Progeny upon the C.ommmeat Date of this Agreement, subject to reasonable wear and tear and breakage, shall remain upon the property at the termination of this Ate. Hotel has provided an inventory list on Fxbbit 'C" for the items rdfaemed herein that are provided by Hotel. Restauranteur shall mp.ntpin an inventory list of items that it acquires during the term of this Agreement 25. M iceVmeouas Operation& (A) Re #atnanteur shall maintain at its expense allzxistine ire Prevention. safety, and health systems within the Restaurant and Banquet Hall fall of which Hotel reprewnts and warrants to be in good oocratine condition and incompliance, with all applicable laws, rules and regulations-), inchnling but not necessarily limited to regular fire prevention system inspections and maintenance and repair, cleaning of hoods„ extermination of all pests, testing and replacement of fart- extinguishers, and all other ordinary and normal regulatory and safety concerns incurred in the operation of a fast class Restaurant premises- Any notices of violation *--._ ?lekted: Maier M"M Jort Vedwe MatarJarram Jotrt Vm%hKe - 42SM 24 shall immediately 'x forwarded to Hotel by Restaurant. (B) Credit cards and credit billings for food and bevcrages served upon the Property shall be the responsibility of Restauranteur. (C) Guest charges to a gum room upon the Property shall be accumulated by Hotel, milected by Hotel, and paid or credited to Restattrantettr on the fifteenth (I 5th) and lest day of Bch calendar month A Service charge of wo_percxat o) will be deducted by Hotel prior 7editing payment to Restauranteur for its administrative costa (D) Cor.vention/meeting/ftwction charges to a master account, upon the Property shall be accumulated by HoteL collected by Hotel, and paid to Restauranteur on the 15th day of each udendar mouth du ing the term of this Agreement for the immediately preceding calendar month subject however, to the same service charge wed in subparagraph (c) of this sectbn- 26. Emphvee& (A) Restauranteur shall be responsible for the hiring. firing and regulation of all of its :mployccs, and Mel shall be responsible for the hiring. firing and regulation of all of its Jmployees. Each shall be responsible for compliance with respect to all laws, regulations and )rdinances governing their respective personnel. (B) Reg:suranteur shall be responsible for the cost of all payroll and bmefrts for food and beverage emplayees upon the Property commencing with the Cow Date of this kgreement. Hotel :shall be responsible for the payment of all compensation, cash benefits to such m ployees prior to the Commencement Date of this Agreement. ,..... ............. ..-----------•------------------- lSeMmee:M;?rJa:amJantymhae hater Jairan Joint Ventre - 428-03 25 27_ Joint Sala and Promotions. (A) Restaiffsnteur shall report immediately to Hotel of the occurrence of any incident relating to or occurriig upon the Property or the Restmirsnt which will inchrde, but not tic cessanZy be limited to, acoWen2s, problems relating to service of alcoholic beverages, and of her' incidents which would affect the general overan marketing, operations, and/or well-being of both Joint Ventunzs of the Property. Any notices of violation as to Restattrante,&s operation frOm any government agency or any otber business related complaint shall be forwarded to Hotel within five (5) days- (B) The parties hcr>rto may from time to time agree upon joirit promotions for events st ch as New Years lave and wilt share equally the marketing and advertising costs thereof N sither party shall bind the other without express prior approval of the other party. (C) Rests urante r shall provide room service within the Property, and all proceeds --- . oeruet: arsrana.u?rar>x•. tl- erefiom shall beA cstaurmte&s. except for the same service c ge deducted by Hotel as provided in subparatgaph (c) of Section 25, 28. Environmental HazardA- (A) The parties hereto covenW and agree that neither of them shall take any actions u hich would cause my Hazardous Subsumes being present on or under the Property at any time & Wing the Term of this Agreement or which would cause any spills, releases, discharges, storage o - disposal of Hazardous Substances on, onto, under the Property or properties adjacent therrto, nor shall either place: upon the Property any tacks or other holding containers, whether under, at o - above ground surface which would fall within the regulation of environmental authorities, neraMed: Mager Jrkam Joint Venhna Miter Jairam Joint Ventura -+29-03 26 w tether state or federal Each does covenant and agree to the other that they shall comply with all D.w?eed: Z E rvimnmental L. ws or any other federal state or local_laws, ordinances, regulations or ------------- ac kministrative or judicial order relating to the gemration, recycling, reuse, sale, storage, h: mdling, traiiVort, ireatment or disposal of any Hazardous Substance. (B) Each of the parties hereto does indemnify the other against all liabilities and costs o ' any nature whatsoever, including, but not limited to, costs of removal and cleanup, and reasonable attorney':; fees, notated by its actions causing any environmental issue or pr nblem or "He zaid" upon the Property. (C) Whera used in this Agreement, the term'Hszardons Substances" shall mean and u .chide: W all hazardous or to& substances, wastes or materials, including but not limited to tl iose as now or lica2fter defined by or designated in or pursuant to Environmental Laws (as b xeinafter defined): and further including without limitation petroleum and products and d=ivatives tbereot radon, methane gas, asbestos, polyclilonnated biphenyls, urea-formaldehyde f min insulation and other pollutants or contaminants, whether or not naturally occurring, (ii) any a iivity now or hereafl=undertaker, whether on, at or off the Property, that would (1) cause the F roperty to becD= a hazardous waste treatment, storage or disposal facility under, or otherwise s abject the Property to the provisions of the Resource Conservation and Recovery Act of 1976, E_ amended 42 U_S.C. §6901 et seq, (2) cause ar°lease or disposal of Hazardous Substances on t re Property under, or otherwise subject the Property to the provisions of the Comprehensive Environmental Response, Compensation and Liability Act of 1480, as amended, 42 U.S.C_ t 9601 at seq., the Pennsylvania Hazardous Sites Cleanup Act, Storage Tank and Spill Prevention i tct, 35 P. S. §6201.101 et seq., 35 P. S. §6020.101 et seq. or any similar state or local law or ordinance,(3) ge of ppIlutmmtsFr?taminant&-efflrientSlnto-MyUrafer-Sourx=.._------ D.Wed:M&WJWWJdTdVMtWe cau -the discharge itaW Jatram Joint VeMus - 4-2&03 27 1 or synem whether snfoce or subanfere, or of auy emissions into the air, which would require a pr rmir under the Federal Water Pollution Control Act, 33 U-S-C. §1251 et seq.. or the Clean Air A ;t, 42 U.S.C. §7401 ctseq., or any similar state or beat law or ordinance, or (4) cative any sz bstemces or coeditons in, on or under the Property which may support a claim, charge or cause of - action under any of the above-mentioned laws or any otber federal, state or local ez.vironmental laws, ordinances, rules, regulations, administrative or judicial orders, or any other ev mumnmental re+quixmouts (colleamcly, "Environmental Laws"), including without limitation d a presence of any underground storage tanks or underground deposits located on the Property . 29. 1* Drulors CerWleaba Hotel and Ru--tsuimAeur covenant, warrant and agree that there was no broker or finder it strumentwi in consrr?ating this Agturnsnt, and no conversations or negodapons were bad v ith any broker or finder conoeaning this Agreement. Each agrees to indemnify, defend and hold h armless the other against arry and all liabil y from any claims of anyone for brokerage c ) * mission or finucrs' fees premised upon coatwA and discussions with the party providing s wh indeninificatios hereunder Such indemnification. -Ind- the value of all claims, damages? c.)sts? wgxm-gm inc-vding attorneys' fees, incurred in connection with such brokerage or finders' claims 30 No Recordation. This Joint Venture Agreement shall not be recorded by either Hotel or Restaurateur. •-........................ n.tdaa: k1?erJsi,m Jets r yenw,e I &WtsrJakamJobvVentura-423-03 28 . ? aria, w?a?K 31. Meebank's Dens. (A) Notwithstanding anything to the contrary contained in this Joie Venture A gecment, Restam othur and Hotel, their successors and assigns, warrant and guarantee to the of her, its successors and assigns, that if any mechanic's lien shall be filed against the Property, or w irk claimed to have been done for, or materials claimed to have been furnished to a Joint V snan+er: (1) the same shall be dsmbarged by the Joint Ventura authorizing same, by payment, b! - bond, or otherwise, at the sole cost and expense of such Joint Venturer, within seven (7) days o? 'the giving of notice thereof by the other Joint Venturer; (2) either a release or a satisfaction of 6 rn, as the case may be, shall be fled with the County Clerk or Ptothonotagrs Office, as a1,plicable, of the c ainty in which the Property are situated wAhin such seven (7) day peaiod; and (_) it copy of such release or satisfaction, as the case may be, cettdiie3 to be. such County Cleric or P othonotary shall b? delivea-ed to Hotel within three (3) days after such tiling- In the event attch n: echanic's lien is nc t discharged timely, as aforesaid, the other Joint Venturer-. (B) Before commencing any construction upon the Property, each Joint Veuhaer a,7m to secure the -recrution and recording of a Stipulation Against Liens to be filed in the C fiices of the Prqtux!not.m and Recorder of eeds of Cumber3and Gerrity Pennsglv_anie in a -? ' ---- ------------------------- I. tine and manner which will make same effective to preclude the suecessful filing of any a echanics' hens against the Property. 32. Limitation on Authority. No Venturer, may, without the written consent of the o her, do any of the following with respect to the Joint Venture: (A) Borrow money in the name of the.Joint_VentrrefoLauy.pLrposcs.oruse cnllatcral__.-____ nested Je?am?? M roar Jakam Jost Venbre - 4-28M 29 I o,. rued by the Joint Venture as security for such loan, (B) Assign, transfer, pledge, compromise or release any of the claims or debts due to th a Joint Venture, wo=pt upon payment is full; (C) MAe: execute, or deliver any Assignment for the benefit of creditors or any bond, cc nfession of judgenr M chattel. mortgage, deed, guaranty, indemnity bond, surety bond, or cc am= to sell or coitra'.t of sale of any portion of the.Prope ty of the Joint Venture, other than in the ordinary cotes: of the operation of the business delegated to the partimilar Venturer, as dt scribed in this Joint Ventre Agreement; (D) Lease or mortgage any Joint Venture property or any interest therein. or enter into ar y conwaa for any •7urpose:, other than in the ordinary course of the operation of the buskin do legated to the particular Menbu e , as desanbed in this Joie Ventre Ate; (E) Pledge or apothocate or in any manner transfer its interest in the joint Veotiffr, o rcpt to the other p mty, or as set forth otherwise in this joint Vmtune Agreement; provided however, that if a f mancial institution considering financing to Hotel or Restamranteur requires ai . assignment of its right, title and intcros under this Joint Vemttue Agreement, SOch assignment. m Gybe made withow the consent of but upon notice to the other Joint Venturer; (F) Caust: the Joint Vesture to become a surety guarantor, accommodation party to al y obli gation: (G) Talc any other action with respect to the operation of the joint Venture, except as e: pressly provided ctherwise in this Joie Vcnwm Agreement- 33 - Crom In&nmWc mien. Except for the obligations as provided elsewhere in this Jc •int Venture Agreement, each of the parties hereto do hereby indemnify and hold harmless the -------------------------------------------------------- - - r1elm.a: Mier Jaram JdM V..MM I M star Jairam Jdrt Ventre - 428-M 30 of her with respect ro any and alt past, ptescut and future actions, canoes of action, claims, & mands, damages, medical payments, casts, expenses, third pay Rclionss suits at law or in a laity, including claims or suits for caninbuti and/or iidemnity of whatever nature, and all o„nsequetutial damages on account thercot with respect to their respective activities, whether Mcon the property aid undex this Joint Venture Agrecracat or elsewhere. This cross- it demnificawn is intended to be as broad as possible, and shall include, but not be limited to, c aims which are the individual re4pOnmWq of a party hereto with. respect to oompeasation, bmefits, payrolltax,m and insurance for their respective employees. 34- Coo XXHOI The parties hereto shalt cooperate With one another in good faith, e ccclutq deliver and file. ail such documents and and take all such other action as n cry be necessary froth time to time to effectuate the intent and provisions of this Agreement. 35. Remedies. Because the parties hereto acdmowledge that a non-defaulting party to t us Agreement will be damaged irreparably m the event of a breach orthreatened breach hereof, t >e provisions of the Agreement shall be specifically enforceable. Sbould any dispute under or c n account of any provisions hereof. htmetive rrlie4 wbether special, preliminary or permanent, c r a decree of specinc performance may issue, resting any action, pending the determination t f said dispute, and iu the enforcement of the provisions hereof or as relief for the violation thereof Such remedies shall be enmnl atore and not exclusive and shall be in addition to all other j emedws, which an-• party hereto may have. wkted: Mawr Jmi wn Jdrd Vedrua I Aster Jeinun Joint Venture - 4-26W 31 36_ Caniiona. The tale of the paragraphs througbout this Agreement are for cc nvenience and reference only. and such titles shaft in no way be held to limt modify, amplify or aid in the interpreisdon, consttuc6on or meaning of the provisions of this Agreemcni - oetlcd:3m.ee 37. Notices. Any uotice, which Pjt 2 m? msy desnC? OI be rOgtitt ed, to give t0 IC ?eNbd: i?..or shall be in writing and shall be sc? registcred of Ctrtif ed mail, rattanrooeipt requested, ?:___•• t ai: mlLel.?ar o;-by any other 04w= maillmcsscoger &Jvml service which provides a receipt for delivery, to tt a following addresses: AS TO Restuxanteas 11 -- ----- - - ?,[aie" Restaurant Manaeetnent_ Inc. 300 North Mountain.Road Harrisburg, PA 17112 Da s"z - - ComMy CW=% k=l [with a copy to:] 6V_ Stott SmnulEsa. - -- r ------------------------- _ La?F s Stanch ? Pisarcik _ 20 Eiford Road. Suite 305 Lemcmm. PA 17043-1163 ---- itDetete+. ? AS TO HoteL- JAIRAM 7, INC. 1245 Hmiisburg Pecs Carlisle, Pa 17013 [Witt: a copy to:] James N. Clymer, Esquire 23 N. Lime Suact P.O. Box 1766 Lancaster, Pa. 17605.1766 Delete Marsr Jaknm Jdrd Wture f Ilt??at Jacam Join VerU?re -428 03 32 38. 1NyaI . If any provisions of this Agreomemt or the application thereof to any p xson or circ unstex ce shall to any extent be held invalid or unenforceable, the remainder of this A greement, or the aliplication of such provision to persons or circumstances other than those as tc which it is held invalid ortmcabaroeable, shall not be affected thereby, with each tern and p -ovision of this Agreement to be valid and enforceable to the fullest extent permitted by law. 39. Prrovisbos BIROM , The Provisions of this Agreement and all rights and li abilities herein given to or imposed ttpon the parties beneto, shall binding upon, extend to and u jum to the benefit -if said patties and their respective bei % executors a in s a ad assigns, subject to the prohibition against assignment under paragraph 13 hereof 40. Comolete Agreement This Agreement contains the entire undast ilmg and e greement among the parties hereto. No modification of this Agreement shall be binding tmless ach modification shall be in writing and signed by all of the parties hereto. No arpies of this W=mena shall. be supplied to any third party except the Pennsylvania Liquor Control Board or r ny financial institution that is providing or will provide financing for the operations of or at the Property, without the prior written consent of aU of the undersigned parties 41. Conatrnction. The provisions of this Agreement sba11 be construed under and ,enforced in accord+mce with the laws of the Commonwealth of Pennsylvania. Where herein used, he plural shall include the sinngular, and vice-versa, unless the context otherwise clearly requires. ---------- Daktm& etMwJat=JdrI V«n.8 the use in this Agreement of tbe: words r",.'b=ojr,._'h=in"--and.otber z Om---------------- Aster Jeiram Jofrt Ver hue - 4-28-03 33 1 co mpounds with the word "bore" shall refer to the entire Agree UML and not to any particular ps -agraph of provisicn of this Agreement, unless the context clearly requires a different m mnmg. 42. BaokMplg-, and Foreclosure. Notwithstanding any provision to the contrary he rein in the event alfthe bgplg tptcv of either party, the other party may elect to continue in the ht sinm of the Joint Veruure subject to relevant court orders and cortsistent with the laws and Lu les of the P= sti'h'ania Liquor Control Board ("PLCB') with the trusEoe or rea-esentattve or g. cssor to the cxxhc r pa ; in the event of a foreclosure against tither party, the retnaining party M iv terminate this Agreement by pg] lving_the other party in writing such notice beige affective u3 on marling or ma elect to continue operating pursuant to this Agreement with the otber pt rtv's successor, ar sistem with the laws and milts of the PLCB. _ _ 43..- _ Mortgagees Hotel will procure nondisturbance agreements (reasonably a.t ceptable in fomn aad substance to Restaurauicur) from all mortgagees providing that ibis Joint --nr z Agreement- and Res-iautarttoWs interest herein shall be protected and honored at R --stauranteur s otHian so long as Restauranteur is not in default hereunder- in the event of any ti reclosure or other enforcement action by such mortgagee(s). 44 Guarantee Hotel agrees to procure from Beauty Seven a mrarantee and mg"a ge j' easonably acceptable in form and substance to Restaumicur) in favor of Restattranteur for rich sums as Remtranteur shall ex=d for Improvements sabiect to reduction dollar for dollar 11 ?r credit tnlen be >;_esraurantcur under ParagZaoh 7(P) and which rnortgaee shall be c. Iv DSIMed•imagerJM. JahdVatme N slier Jatram Joint Vent se - 426-03 34 N)rdinate to :nort?aa?, cur tnth, of record. it has 45, Fnanciai Condition- Fach My revresents and w arranLs to the other that is necsarc capit?iization and/or working Mital availability to perform its obligations t yreu . IN W'1TNE `:S WHEREOF the Joint Vcnn m intending to be legally bound have jz4 in triQpcatc upon the date and year first above written. cswcd this Agreement to ba sign iTTEST: _ Hotel: JATRAM 7,_INC. ----------------------------------------------- --------•- -------•-------------•----------------------- OV: _ ` Secretary Ptesideut . •. ------ ----------------------------- ------------------ -------------- ----------------- ------------ --------------- LTTEST- ResMuranteur. MATER RESTAURANT(' NL4NAGEMENT. Fenn.mr: rent: OW Facentl.d: Lbe spwkw dnpie Dskbmk -W WMtB=VEMm I *wrais V-Awa k:rmA%toto teplty band, Lee =mW *i Av=waab.:pWiea'*tie .wm Vs are adpr 6in.bors.ri:m ? AI7T$r:_ _ 7A1gau?.IIio.t --- BY• --may------- R+i&A ForsNbbk Fnnt ftM Fermdlad: root: 12 ik acid DdWA : ------ RsoavasWI Al•ISSr:_ COUKMYOVBK I Forerlhd: Fbr& Boil DaLld:1 -HY- Feraedledr Foal Bold Delrbd_ Fwxuned: rout add t DelsW: AloWrJokmn Jdnt Venue :Aatsr Jairam Joirt Varturn- 4-2843 35 - = d warrants to the other that it has 45. Financial Condition. Each parry represents an necessary capitalization and/or working capital availability to perform its obligations hereunder. IN WITNESS WBEREOF, the Joint Venturers, intending to be legally bound, have caused this Agreement to be signed in triplicate, upon the date and year first above written. ATTEST: Hotel: Secretary ATTEST: Secretary dAIRAM 7, INC. By: President Restauranteur. MATER RESTAURANT MANAGEMENT, C/ By ?sident Meter Jairam Joint Venture - 4-28-03 35 . . . . . . . . ................................................................... ADDENDUM TO JOINT VENTURE AGREEMENT BETWEEN COUNTRY OVEN, INC. AND JAIRAM 7, INC. . © This agreement is an Addendum to the Joint Venture Agreement entered into by and betw Country Oven, Wp. and Jairam 7, Inc. under date of -11)" f , 200.3 and is intended to modify, supplement and amend said Joint Venture Agreement as follows: 1. The name of the Joint Venture shall be PCO Joint Venture- 2. The Raskeller Room shall be included in the area under the control and management of Restauranteur with no change in the distribution of Joint Venture proceeds from . what is otherwise provided in the Joint Venture Agreement. 3. Although it is the responsibility of Restauranteur to remodel and make improvements to the area under its supervision and control, Hotel will assist in maldng funds available for such improvements and renovations by loaning up to Seventy Five Thousand and 001100 Dollars ($75,000.00) to Restauranteur under the following terms and conditions. A. Restauranteur will match and contribute from its own funds an amount equal to what is loaned by Hotel. 2- The capital contributed by Restauranteur and the money loaned by Hotel for renovations/improvement purposes shall be maintained in a separate fund and only used for improvement and renovation purposes for items that are intended as part of the real estate and not subject to removal by Restauranteur at the termination of this Agreement. A14 H013, W'4h* ) 1-4 3- The funds from the improvements/ enovations account shall be withdrawn only upon prior approval to pay fo specific renovations and improvements and subject to the approval of Hotel and Restauranteur- The improvements/renovations account shall be specifically for the Mariposa Banquet Hall, Raskeller Room, lobby area, lounge and kitchen and shall not be used for any items which are permitted to be removed by Restauranteur at the end of the term. 4. Restauranteur shall pay Hotel interest at the rate of seven and one half percent (7.5% ) per annum for funds advanced by Hotel for the improvement/renovation project. Interest only on the unpaid balance shall be paid through 200 be{?o Belo -X? 3 U 5. AfeT?51 2003, Restauranteur shall begin making monthly payments in the amount of One Thousand Two Hundred Fifty and 00/100 Dollars ($1,250-00) principal plus accrued interest on the unpaid balance at the s7-?e%) per annum. These payments rate of seven and one half perMe shall begin on the first day of.. ', 20 03, and shall continue on the 12- ell first day of each month for sixty months (60) or until the principal balance and all accrued interest is paid in full. W a MATE' Re5bQ4r•'nt fY4de-a( 1r)1dC2' .a 4. Hotel and Restauranteur hereby agree to share in the cost of renovation/improvements to the lobby area. Hotel will pay one-half of the cost of approved renovation/improvements to the lobby area up4e4,tnW&n e. 5. Restauranteur hereby guarantees the minimum joint venture base distribution to Hotel as set forth in the joint Venture Agreement for a period of three years to run: from August 1, 2003. This guarantee shall apply in any situation in which the Restauranteur fails to continue with the operation under the Joint Venture Agreement. 6_ As an inducement for Restauranteur to continue as a Joint Venturer for an extended period of time, Hotel will give a monthly credit to Restauranteur in the amount of One Thousand Five Hundred and 00/100 Dollars ($1,500.00) each month until such credit equals the combined amount expended by Hotel and Restauranteur for renovationrunprovements to the real estate pursuant to Paragraph 3 hereinabove, but not to exceed $150,000.00 in total credit. If at any time or for any reason (other than a breach of the Agreement by Hotel ) before the expiration of 100 months of operation under the Joint Venture Amt, Restauranteur does not continue as a Joint Venturer, Restauranteur will thereby relinquish and waive any rights to the credit provided under this paragraph. 7. Hotel hereby agrees to replace two (2) air conditioning units in the Mariposa Banquet Hall at the sole expense of Hotel. Any repairs needed on the air conditioning units up to $500.00 shall be paid by both parties in equal shares. If any repairs over $500.00 are needed, the parties shall negotiate a mutual agreement for payment allocations. 8. Maintenance and cleaning of the grease trap shall be the sole responsibility of Restauranteur and R.estauranteur shall have the grease trap cleaned at least monthly. 9. Restauranteur shall provide breakfast service between 6:00 A.M. and 10:00 A.M. or such additional hours as it shall desire. 10. Restauranteur shall make necessary changes in the sports bar area. Specifically, . Restauranteur shall install windows and doors to suit its business purposes. These' funds may be used from the joint renovations/uprovements fund of One Hundred Fifty Thousand and 00/100 Dollars ($150,000.00). Novt0bed 11. After August 1, 2003, any improvements in the restaurant, lounge, Mariposa Banquet Hall or Raskeller Room shall be the sole responsibility of Restauranteur at its sole costs, including, but not limited, to replacement of carpet, wallpaper, accessories and decorations. 12. Wherever the term `Best Western" is used in the Joint Venture Agreement, it shall be replaced with the term "Jairam 7, Inc" as the Hotel is no longer operating as a Best Western facility. 2 JJ( W'r1Co 13. The Joint Venture will apply for a hotel liquor license before J , 2003. The entire costs for acquisition and maintenance of the liquor license shall be the sole responsibility of Restaurantenr. 14. Restauranteur shall have completed the renovations and improvements in the lounge area and restaurant by the second week of 2003. 15. Restauranteur will complete the renovations and improvements in the Mariposa Banquet Hall and Raskeller Room before August 1, 2003. 16. Hotel shall secure for Restauranteur a right of first refusal to purchase the Hotel property in the event the owner receives a bonafide offer to purchase the Hotel property under the terms and conditions acceptable to owner. In such event l i , y?and conditions of such offer in writing Restauranteur will be presented the team whereupon Restsuranteur shall ha !) days after receipt thereof within which to present an offer on identical or better terms to the owner which the owner shall be obliged to accept. Following the lapse of the ten day period, if Restauranteur has not submitted an offer on identical or better terms, this right of first refusal shall have expired and Restauranteur shall have no further rights thereunder. 17. The obligation for repayment of the $75,000.00 loan under Paragraph 3 hereinabove shall be secured by a Judgment Note on which both the Restauranteur and the principals of Country Oven, Inc- shall be Obligors. 18. The date of signing of this Addendum shall be deemed the date of complete signing of the Joint Venture Agreement and all dates in the principal agreement and this Addendum using as its reference point the signing of the Agreement shall be construed as the date on which this Addendum is signed by both parties. 19. This Addendum shall supplemaent and modify the primary agreement and the terms of this Addendum shall take precedence over any -conflict with terms in the principal agreement.] IN WITNESS WHEREOF, the parties have hereunto set their hand and seal this , day of Imm. 2 3- N,uS ATTEST- Secretazy Hotel: JAI AM 7, INC. By: V, •? _ President Restauranteur: ?- ATTEST: COUNTRY O Svc:. B Secretary President 3 I?X ?`? ?- r Mater Carbsk Lease Assign scn/PLCD transfers Lease Assignment Agreement THIS AGREEMENT is made this 8'h day of April 2004 by and between Jairam 7, Inc., a Pennsylvania Business corporation, with a principal place of business located at 1245 Carlisle Pike, Carlisle, Cumberland County, Pennsylvania 17013 ("Assignor") and BWCO Joint Venture, a joint venture comprised of Jairam 7, Inc. and Sahar Mater Enterprises Carlisle, LLC, by its duly authorized representative, with a principal place of business to be located at 1245 Carlisle Pike, Carlisle, Cumberland County, Pennsylvania 17013 ("Assignee") WI NESSET11 WHEREAS, Assignor is the beneficial owner of a certain Hotel Lease Agreement dated June 20, 1998 (Lease Agreement) by and between Beauty Seven, a Pennsylvania Partnership (as Landlord) and Jairam 7, Inc. (as Tenant) and may not assign its rights to the Lease Agreement without the written consent or approval of Landlord; and WHEREAS, Assignor is desirous of assigning all of its right, title and interest in and to that portion of the Lease Agreement to BWCO Joint Venture that relates to the restaurant and banquet facilities located therein; and WHEREAS, Sahar A. Mater is the authorized representative of BWCO Joint Venture. NOW THEREFORE, in consideration of the mutual covenants and agreements herein contained, the parties hereto, intending to be legally bound hereby, agree as follows: 1. Assignor hereby assigns all of its right, title and interest to the Lease Agreement to Assignee, subject to the approval of the Pennsylvania Liquor Control Board, in that portion of the Lease Agreement that relates to the restaurant and banquet facilities located at 1245 Carlisle Pike, Carlisle, Pennsylvania 17013, subject to the terms of the BWCO Joint Venture Agreement. 2. Assignee hereby consents to the aforesaid assignment and agrees to perform all of the terms, covenants, promises, and conditions of the aforesaid Agreement as they may relate to the area herein assigned and as described in the Lease Agreement dated June 20, 1998. 3. Both Assignor and Assignee agree that this Agreement constitutes the entire Agreement between them respecting the aforesaid assets and correctly sets forth their obligations to each other as of its date. IN WITNESS WHEREOF, the parties hereto, intending to be legally bound hereby, have hereunto set their hands and seals the day and year first above written. Witness/Attest Jair m 7, lnc. i , All lay _ _ Authorized Officer 13 WCO Joint Venture Authorized Representative *************k*YkJc ****** Consent of Laud lord For $1.00 and other valuable considerations, r-cceipt of which are hereby acknowledged, Beauty Seven, a Pennsylvania Partnership, by its duly, tithorized Partner, hereby 4.1 consents to the assignment of the above referenced Lease from Jairam 7, hic. to BWCO Joint Venture. Beauty Seven Part.m,-rship BY--. Partner ?x??6?? ? Unit 1 BEGINNING at a point on the southern right of way line of the Harrisburg Pike (S.R. 0011) thence along said right of way line by a curve to the right having a radius of 3208.17 feet, an arc length of 492.09 feet, a chord of North 81 degrees 12 minutes 57 seconds East and a chord length of 491.61 feet to a point at the northwest comer of Lot Number 2 of the Preliminary Final Subdivision Plan for Jairam 7, Inc as recorded in the office of the recorder of deeds in Instrument Number ; thence along said Lot Number 2 the following five (5) courses and distances: 1.) South 16 degrees 32 minutes 55 seconds East a distance of 142.38 feet to a point 2.) By a curve to the left having a radius of 110.00 feet and an arc length of 146.40 feet to a point; 3.) North 87 degrees 1 I minutes 54 seconds East a distance of 120.74 feet to a point; 4.) South 24 degrees 30 minutes 32 seconds East a distance of 31.00 feet to a point; 5.) North 89 degrees 35 minutes 53 seconds East a distance of 73.50 feet to a point at lands now or formerly of CNR Hospitality Enterprises; Thence along said lands of CNR Hospitality Enterprises South 04 degrees 42 minutes 02 seconds East a distance of 177.38 feet to a point at the condominium unit line between Unit 1 and Unit 2; thence along said Unit 2 the following ten (10) courses and distances: 1.) North 85 degrees 54 minutes 52 seconds West a distance of 333.29 feet to a point; 2.) North 88 degrees 03 minutes 34 seconds West a distance of 100.58 feet to a point; 3.) South 72 degrees 01 minutes 17 seconds West a distance of 45.65 feet to a point; 4.) North 80 degrees 11 minutes 42 seconds West a distance of 24.99 feet to a point; 5.) South 70 degrees 59 minutes 15 seconds West a distance of 234.99 feet to a point; 6.) North 19 degrees 47 minutes 42 seconds West a distance of 31.76 feet to a point; 7.) South 73 degrees 04 minutes 10 seconds West a distance of 100.55 feet to a point; 8.) South 75 degrees 19 minutes 21 seconds West a distance of 256.79 feet to a point; 9.) South 59 degrees 50 minutes 27 seconds West a distance of 51.60 feet to a point; 10.) South 40 degrees 05 minutes 38 seconds West a distance of 34.55 feet to a point in the roadbed of South Middlesex Road (T-590); Thence in the roadbed of South Middlesex Road (T-590) North 49 degrees 54 minutes 22 seconds West a distance of 69.60 feet to a point in the roadbed of South Middlesex Road (T-590); thence leaving said roadbed and along lands now or formerly of Siddhi Shree Sai, LLC North 74 degrees 23 minutes 40 seconds East a distance of 276.95 feet to a point; thence by the same North 22 degrees, 30 minutes 00 seconds West a distance of 76.07 feet to a point; thence by the same North 73 degrees 48 minutes 08 seconds East a distance of 89.45 feet to a point at lands now or formerly of Roger Gates Stambaugh thence along said lands of Stambaugh North 77 degrees 06 minutes 38 seconds East a distance of 100.00 feet to a point; thence by the same North 16 degrees 16 minutes 22 seconds West a distance of 289.30 feet to a point at the place of BEGINNING. EXCEPTING AND RESERVING therefrom the designated Common Area as shown on the Condominium Plan consisting 34,563 sq. ft. (0.79 acres) . CONTAINING: 5.49 acres more or less, net of the Common Area (6.28 acres total) ?? ? ,?? ? ? i CLYMER MUSSER BROWN 9 CONRAD, P C. ATTORNEYS AT LAW JAMES N. CLYMER 408 WEST CHESTNUT STREET ROBERT F. MUSSER POST OFFICE BOX 1766 LEONARD G- BROWN, al LANCASTER, PA 17608-1766 DAVID R. DYE (7{7) 299-7101 JEFFREY A. CONRAD FAX (717) 299-5115 DAVID W MERSKY www.cmbclaw.com STEPHANIE E. LOMBARDO E-MAIL lawocmbclaw.com December 31, 2010 TO: All Mater & Sahar Mater t/a Mater Restaurant Management 300 North Mountain Road Harrisburg, PA 17112 Sahar Mater Enterprises Carlisle, LLC t/a Country Oven 1245 Carlisle Pike Carlisle, PA 17013 FROM: James N. Clymer, Attorney for Jairam 7, Inc. SENT VIA: First Class Mail and Certified Mail 203 COMMERCE DR, SUITE A QUARRYVILLE, PA 17566 (717) 786-0500 FAX (717) 786- 211 1 210 NORTH STATE STREET EPHRATA, PA 17522 DIRECT ALL CORRESPONDENCE TO THE LANCASTER OFFICE You are hereby given notice that you are in default of the Joint Venture Agreement between Mater Restaurant Management and Jairam 7, Inc. and, by Assignment Agreement dated April 8, 2004, Sahar Mater Enterprises Carlisle, LLC. You are in default by reason of your failure to make payments required under the Joint Venture Agreement in the sum of Six Thousand Four Hundred ($6,400.00) Dollars each for the months of October, November and December, 2010. As of January 1, 2011 there will also be due Six Thousand Four Hundred ($6,400.00) Dollars for the month of January. Thus for the time you receive this notice the total arrearages will be Twenty Five Thousand Six Hundred ($25,600.00) Dollars. This Notice shall constitute the five (5) day written notice of default for non payment of joint venture distributions, as provided in paragraph 19 (i) of the Agreement. Demand is hereby made for payment in full of the past due sums of $25,600.00 within fifteen (15) days of the date of this letter or by January 14, 2011. If payment is not made in full by then, All Mater & Sahar Mater Sahar Mater Enterprises Carlisle, LLC December 31, 2010 Page 2 Jairam 7, Inc. may proceed at any time without further notice to exercise any or all the default remedies provided for in the Joint Venture Agreement. Being so advised please govern yourself accordingly. Sing re_l J e cc: W. Scott Staruch, Esq. Mahendra Shah ?ti:b ? t ? JAMES N. CLYMER ROBERT F. MUSSER. LEONARD G. BROWN, In DAVID R. DYE JEFFREY A. CONRAD DAVID W. MERSKY CLYMER F5 MUSSER, P C. ATTORNEYS AT LAW 408 WEST CHESTNUT STREET POST OFFICE BOX 1766 LANCASTER, PA 17608-1766 (717) 299-7101 FAX (717) 299-5115 www.clymerlaw.com E-MAIL law(Mclymerlaw.com January 17, 2011 TO: Sahar Mater Enterprises Carlisle, LLC t/a Country Oven 1245 Carlisle Pike Carlisle, PA 17013 RE: Agreement with Jairam 7, Inc. Dear Mrs. Mater, 203 COMMERCE DR,5UITE A QUARRYVILLE, PA 17566 (717) 786-0500 FAX (717) 786-2111 210 NORTH STATE STREET EPHRATA, PA 17522 DIRECT ALL CORRESPONDENCE TO THE LANCASTER OFFICE On December 31, 2010 you were sent a Default Notice Letter advising you of your default of the Joint Venture Agreement to which you are a party with Jairam 7, Inc. for the restaurant and banquet facilities at the 1245 Carlisle Pike address by reason of your failure to make payments required under the agreement for the months of October, November and December 2010. Of course, the payment is now due also for January 1, 2011, for a total of due of $25,600.00. Under that Default Notice you were given 15 days to cure the default. I spoke with you by telephone on January 4, 2011 and again on January 17, 2011. In both conversations you advised me of a number of items that you believed Jairam 7, Inc. had failed to perform as its obligations under the Agreement. Even though you told me that was the reason for not paying the rent you acknowledged that you had not given Jairam 7, Inc. a written notice of any kind explaining that was the reason for not paying the rent since October 2010. In the most recent conversation I explained the following to you: 1. The back monthly payments including the payment due for January 2011 must be paid immediately and unconditionally. Your failure to make that immediate payment will result in Jairam 7, Inc. continuing to exercise its default remedies under the Agreement as the 15 days to cure have now expired. 2. Beginning in February and going forward the paments will be due on the I" of the month as stated in the Agreement rather than the 25 which seems to have become the practice over time. 3. Once the back payments are paid in full, you may submit a list of the repair items that you assert to be the responsibility of Jairam 7, Inc. under the Agreement and they will address them for resolution. 4. Jairam 7, Inc. will repair the roof water leak in the banquet hall. They will take whatever steps necessary to resolve the roof leak problem as soon as the weather permits. 5. Beginning January 22, 2011, Harshad Desai will be on site for 2-3 weeks to meet with you and come to an understanding on how to resolve the conflicts of the past and correctly identify the responsibilities of each party for the items that need to be repaired now. He will meet with you one-on-one to work through those issues and a Memorandum of Understanding, to act as an amendment to the Agreement will be entered into so that there is a process for resolution of complaints in the future. This will clarify the responsibilities of each party under the Agreement. I must emphasize however, that the steps outlined above to resolve issues are conditioned upon the prior payment of the sums due under the Agreement. Provided the payment has been made, both Mahendra Shah and Harshad Desai will sit down with you on or after January 22, 2011 for the purpose of reaching a global resolution of the issues that are outstanding. However, if payment is not made prior to that date, it is their intention to proceed immediately with the default remedies provided under the Agreement. Very truly yours, me- sCl r cc. via e-mail only: Mahendra Shah Harshad Desai JAIRAM 7, INC. vii. HNS MANAGEMENT, LLC t/a COUNTRY OVEN RESTAURANT f/k/a SAHAR MATER ENTERPRISES CARLISLE, LLC t/a MATER RESTAURANT MANAGEMENT AND COUNTRY OVEN RESTAURANT IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA DOCKET NO.: CIVIL ACTION - AT LAW : IN CONFESSION OF JUDGMENT FOR POSESSION OF REAL PROPERTY PLAINTIFF'S AFFIDAVIT JUDGMENT IS NOT BEING ENTERED BY CONFESSION AGAINSR A NATURAL PERSON IN CONNECTION WITH A CONSUMER CREDIT TRANSACTION. rn :R 0 _ rrn- m - ; J u o I further certify the precise address of the: -< ? - Plaintiff: 1245 Harrisburg Pike, Carlisle, Pennsylvania 17013 z o s -n o F m Defendants: 1245 Harrisburg Pike, Carlisle, Penns W 7013 Date: 1714 James N: COMMONWEALTH OF PENNSYLVANIA COUNTY OF LANCASTER SS. On this 7 1?- day of , 2011, before me, a Notary Public, the undersigned officer, personally appeared James N. Clymer, known to me (or satisfactorily proven) to be the person whose name is subscribed to the within instrument, and acknowledged that she executed the same for the purpose therein contained. IN WITNESS WHEREOF, I hereunto set my hand and official seal. COMMONWEALTH OF PENNS*LV^NfA NOTARIAL SEAL AMANDA M. HALL, Notary Public Lancaster City, Lancaster County Notary Public Commission Expires April 1, 2014 My commission expires: 4? a d 11-1 James N. Clymer, Esquire Attorney ID 27151 Clymer, Musser, Brown & Conrad, P.C. 408 W. Chestnut St. Lancaster, PA 17603 (717) 299-7101 Attorney for Plaintiff JAIRAM 7, INC. IN THE COURT OF COMMON PLEAS V. CUMBERLAND COUNTY, PENNSYLVANIA HNS MANAGEMENT, LLC t/a DOCKET NO.: //- yq I( COUNTRY OVEN RESTAURANT f/k/a SAHAR MATER ENTERPRISES CARLISLE, LLC t/a MATER CIVIL ACTION - AT LAW RESTAURANT MANAGEMENT AND COUNTRY OVEN RESTAURANT IN CONFESSION OF JUDGMENT FOR POSESSION OF REAL PROPERTY NOTICE OF JUDGMENT AND EXECUTION REQUIRED BY RULE 2973.2 NOTICE OF DEFENDANTS' RIGHTS TO: HNS MANAGEMENT, LLC t/a COUNTRY OVEN RESTAURANT f/k/a SAHAR MATER ENTERPRISES CARLISLE, LLC t/a MATER RESTAURANT MANAGEMENT AND COUNTRY OVEN RESTAURANT 1245 Harrisburg Pike Carlisle, PA 17013 A Judgment for possession of real property has been entered against you and in favor of the Plaintiff without any prior notice or hearing based on a Confession of Judgment contained in a written agreement or other paper allegedly signed by you. The Sheriff may remove you from the property at any time after thirty (30) days after the date on which this notice is served on you. You may have legal rights to defeat the judgment or to prevent your money or property from being taken. YOU MUST FILE A PETITION SEEKING RELIEF FROM THE JUDGMENT AND PRESENT IT TO A JUDGE WITHIN THIRTY (30) DAYS AFTER THE DATE ON WHICH THIS NOTICE IS SERVED ON YOU OR YOU MAY LOSE YOUR RIGHTS. YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER OR CANNOT AFFORD ONE, TELEPHONE THE OFFICE SET FORTH BELOW TO FIND OUT WHERE YOU CAN GET LEGAL HELP. LAYWER REFERAL SERVICE CUMBERLAND BAR ASSOCIATION 32 South Bedford Street 46 3,4 Carlisle, PA 17013 Telephone: (717) 249-3166 or (800) 990-9108 *Z7 A ~ € iL E_ D,:~~ h {v~. C;r T'iE P:\101,,i0~iu i~s;"~''t SERRATELLI, SCHIFFMAN & BROWN, P. C. Paige Macdonald-Matthes, Esquire 2C11 I NOV 15 AM S; Supreme Court ID No. 66266 2080 Linglestown Road C~,JMgER~,AHO COU~•~T Y Harrisburg, PA 17110 PENWSYLVA,N1A (717) 540-9170 (717) 540-5481 facsimile Email: PMacdonald-Matthesassbc-law.com Attorneys for Defendant/Petitioner JAIRAM 7, INC., : IN THE COURT OF COMMON PLEAS : CUMBERLAND COUNTY, PENNSYLVANIA PLAINTIFF/RESPONDENT . V. . : DocKET No. l 1-8416 HNS MANAGEMENT, LLC T/A COUNTRY . OVEN RESTAURANT F/K/A SAHAR MATER . CIVIL ACTION- AT LAw ENTERPRISES CARLISLE, LLC T/A MATER : RESTAURANT MANAGEMENT AND . IN CONFESSION OF JUDGMENT FOR POSSESSION COUNTRY OVEN RESTAURANT . OF REAL PROPERTY DEFENDANT/PETITIONER . DEFENDANT'S PETITION TO STRIKE, OR ALTERNATIVELY OPEN CONFESSED NDGMENT AND REQUEST FOR IMMEDIATE STAY OF EXECUTION AND NOW, comes DefendantlPetitioner, HNS Management, LLC, t/a Country Oven Restaurant f/k/a Sahar Mater Enterprises Carlisle, LLC da/ Mater Restaurant Management and Country Oven Restaurant, ("Petitioner") by and through its counsel, Serratelli, Schiffman & Brown, P.C., and files its Petition to Strike, or Alternatively Open Confessed Judgment and Request for Immediate Stay of Execution, and in support thereof avers as follows: ( 1 Introduction On June 23, 2011, Defendant/Respondents HNS Management, LLC t/a Country Oven Restaurant f/k/a Sahar Mater Enterprises Carlisle, LLC t/a Mater Restaurant Management and Country Oven Restaurant (hereinafter collectively "Petitioner") filed a three count Complaintl against Plaintiff/Respondent, Jairam 7, Inc. (hereinafter "Respondent") in the Court of Common Pleas, Cumberland County Pennsylvania at Docket Number 11-5234. A true and correct copy of Petitioner's Complaint is attached hereto and is marked as Exhibit "A". A mere cursory review of the Petitioner's Complaint reveals that it involves the Parties' Joint Venture Agreement and the Respondent's violations attendant to the same.2 As evidenced by the letter dated June 14, 2011, attached hereto as Exhibit "B", the Respondent's counsel knew as early as June 14, 2011, that Petitioner was represented by the undersigned law firm. Prior to the Petitioner filing its Complaint, Petitioner's counsel had several telephone conversations with Respondent's counsel, as well as multiple email exchanges. Finally, Respondent's counsel knew that Petitioner was represented by counsel in regazd to the Joint Venture Agreement (a) by virtue of the fact that Respondent's counsel filed Preliminary Objections to the Complaint on July 19, 2011, and a Brief in support of the same on August 15, 2011, and served Petitioner's counsel with the same. Notwithstanding the fact that Respondent's counsel (a) knew that Petitioner was represented by counsel; and (b) knew that an action against his client involving the Parties' Joint Venture Agreement had already been filed with this Honorable Court on June 23, 2011, Respondent's counsel determined to file an action in ` Petitioners' Complaint consists of three counts, to wit: Count I- Breach of Contract; Count II- Fraudulent Misrepresentation and Count III- Tortitious Interference with Prospective Contractual Relations. See Exhibit "A". ZRespondent was sent a Ten-Day Notice with regard to Petitioner's Complaint on November 1, 2011 by and through their counsel of record in this matter, to wit: James N. Clymer, Esquire. Respondent filed an Answer, New Matter and Counterclaim to Petitioner's Complaint on T'hursday, November 10, 2011. 2 , i Confession of Judgment in Ejectment against Petitioner on August 16, 2011 at Cumberland County Docket No. 11-6476-almost two (2) months AFTER the Petitioner's Complaint arising out of the same document had been filed with this Honorable Court.3 The Respondent's first Complaint in Confession of Judgment in Ejectment is hereinafter referred to as "Respondent's First COJ". In their haste to confess judgment, Respondent and Respondent's counsel improperly and unlawfully confessed judgment against an entity not indentified in the unsigned document containing the warrant of attorney filed with the Court and thus failed to abide by the strict statutory requirements for entering judgment by confession in ejectment in the Commonwealth of Pennsylvania. Moreover, because Respondent and Respondent's counsel failed to abide by the strict requirements imposed for confessing judgment, the Court properly granted Petitioner's Petition to Strike Respondent's First COJ on September 26, 2011. On September 27, 2011, the undersigned counsel sent Respondent's counsel of record, James Clyrner, Esquire a letter pursuant to Pa.R.Civ. P. 1023.1, in light of Mr. Clymer's associate's representation to the Court on September 26, 2011 that she would be "re-filing the Complaint in Confession of Judgment." A true and conect copy of the undersigned counsel's September 27, 2011 letter is attached hereto as Exhibit "C". Notwithstanding the fact that the undersigned counsel specifically provided Mr. Clymer with copies of the cancelled checks that belie the contention raised in the Respondent's First COJ (and now raised again in Respondent's Second Complaint in Confession of Judgment) that "all Joint Venture Payments for 2010 and January 2011 have not been paid" Respondent, (together with its counsel) has once again 3 A review of RespondenYs recently filed Counterclaim to Petitioner's Complaint, specifically paragraph nos. 91-93 reveals that Respondent knew that Petitioner's Complaint arises out of the same Joint Venture Agreement that Respondent attempted to use to confess judgment against Petitioner in August 2011. 3 ~ x determined to improperly file a Complaint in Confession of Judgment against Petitioner at Docket No. 11-8416- almost five (5) months AFTER the Petitioner's Complaint arising out of the same document had been filed with this Honorable Court. The Respondent's second Complaint in Confession of Judgment in Ejectment arising out of the SAME document is hereinafter refened to as "Respondent's Second COJ".4 Once again, in their haste to confess judgment, Respondent and Respondent's counsel have once again failed to abide by the strict requirements imposed for confessing judgment. i Because Respondent and Respondent's counsel have failed to abide by the strict requirements imposed for confessing judgment, as more fully discussed herein, the Respondent's Second COJ must be immediately stricken, or in the alternative opened and the action stayed. Parties 1. Petitioner, HNS Management LLC t/a Country Oven Restaurant (hereinafter "HNS") is a Pennsylvania limited liability company having a registered place of business located at 1245 Harrisburg Pike, Carlisle, Cumberland County, Pennsylvania 17013. HNS trades and does business as the "Country Oven Restaurant." Prior to its official name change filing with the Pennsylvania Department of State on or about March 11, 2008, HNS was previously known as Sahar Mater Enterprises Carlisle, LLC. Sahar Mater Enterprises traded and did business as both Mater Restaurant Management and the Country Oven ° As previously mentioned herein, Respondent's recently filed Counterclaim to the Petitioner's Complaint on November 7, 2011, confirms that Petitioner's Complaint involves the same document that Respondent has yet again improperly attempted to confess judgment on. 4 l ~ Restaurant. The only members of HNS aze Ali Mater and Sahar Mater. HNS is hereinafter referred to as "Petitioner". 2. Respondent is a Pennsylvania business corporation having a registered business address located at 1245 Harrisburg Pike, Carlisle, Cumberland County, Pennsylvania 17013-1621. 3. Petitioner and Respondents aze hereinafter referred to collectively as the "Parties". ~ 1. Petition to Strike Confessed Judsment 4. The averments set forth in paragraphs 1 through 3 are incorporated by reference as if more fully set forth at length herein. 5. On November 7, 2011, Respondents' counsel apparently filed a Second COJ against Petitioner based on a warrant of attorney set forth in a conv of an undated and black line and/or "compare write" document. See Exhibit "A" attached to Respondent's Second COJ. 6. Pennsylvania Rule of Civil Procedure 2956 provides that the Prothonotary shall enter judgment in conformity with the confession. 7. Pennsylvania Rule of Civil Procedure 2952(a)(2) provides that the original or photostatic copy or like reproduction of the instrument showing the defendant's si nature must be attached to the Complaint in Confession of Judgment. 8. A review of Exhibit "A" to the Respondent's Complaint in Confession of Judgment reveals that it is a hodgepodge document- a combination of what is apparently a working draft of an agreement (i.e. a"black-line" or "compaze write" 5 document) coupled with an undated "clean" signature page of a different document that does not confortn to the "black-line" document that precedes the purported signature page in Respondent's Exhibit "A". Specifically, if one looks at page 35 of the "black-line" document attached to Respondent's Complaint as Exhibit "A" it reveals that it includes the words "subordinate to mortga~es currently found of record" right above paragraph no. 45. (Underline in the original). Comparing page 35 of the "black-line" document to the "clean" page 35 that is included as the last page of Exhibit "A" to Respondent's Complaint, the I same words do not appear above paragraph 45.5 I 9. Pennsylvania Rule of Civil Procedure 2951(c) provides that "when the oriig nal or photostatic copy or like reproduction of the instrument showing the defendant's signature is not attached to the complaint, Ludgnent mav be entered only b lve of court after notice." (Emphasis added). 10. Petitioner is unaware, (nor has Respondent averred) that the appropriate leave of court was sought (in accordance with Pa. R.Civ.P. 2951(c) after notice to Petitioner) to attach an unsigned document containing a warrant of attorney to its Complaint in Confession of Judgment. 11. Pennsylvania law is clear that a judgment may be entered, under an authorization contained in an instrument, only against a person who has executed the instrument. See Union Bank of Nantv-Glo v. Schnabel, 291 Pa. 228, 139 A. 862 (1927). S In an email dated June 22, 2011, Attomey Clymer admitted to the undersigned counsel that he did not have either a clean copy of the document that was signed by the Parties or the original document, (as is a required condition precedent for entering judgment for confession pursuant to Pa. R.Civ.P. 2951). See Exhibit "D" attached hereto. 6 12. Pennsylvania law further provides that generally for a warrant to confess judgment to be valid, the warrant must be signed by the person to be bound by it, and if the warrant is contained in a writing that includes other provisions, the signature must be so placed on the writing that there is no doubt of the intention of the signer to be bound thereby. See Jordan v. Fox, Rothschild. O'Brien & Frankel, 20 F.3d 1250 (3Td Cir. 1994). 13. Pennsylvania law is equally clear that it is not enough that the signature is placed on one paper, or on one side of a paper, and the warrant appears on another paper or on the reverse side of the paper, if only a single paper is involved. See e.g. Centennial Bank v. Germantown-Stevens Academy, 277 Pa. Super. 134, 419 A.2d 698 (1980). 14. In an ill-conceived attempt to lend support and credibility to the "authenticity" of the hodgepodge document that is Respondent's Exhibit "A", Respondent avers in paragraph 4 of its Second COJ that "[Exhibit "A"] was amended, modified and supplemented by an Addendum dated August 3, 2003 a true and correct copy of [said] Addendum is attached hereto and incorporated herein as Exhibit "B". As a preliminary matter, Respondent's Exhibit "B" does not contain a warrant of attorney. Moreover, there are a plethora of problems attendant to Respondent's Exhibit "B" that ca11 into question the veracity of the document, including but not limited to the following: a. The purported Addendum refers to a Joint Venture Agreement entered into by and between Country Oven, Inc and Jairam 7, Inc. "under date of August 11, 2003 and is intended to modifv, 7 supplement and amend said Joint Venture Agreement as follows. Assuming arguendo that the Court can accept Respondent's Exhibit "A" as authorization for Respondent's Second COJ (which Petitioner believes that the Court cannot and should not do), the computer drive path date that appeazs on Plaintiff's Exhibit "A" in the lower left hand corner of the pages of the document is Apri128, 2003 NOT August 11, 2003, thus calling into question not only the relevancy of Exhibit "B" but the authenticity of Respondent's , Exhibit "B"; ' b. In paragraph 4 of its Second COJ, Respondent avers that the Addendum attached as Exhibit "B" to its Second COJ "amended, modified and supplemented [the Joint Venture Agreement]." The averments in paragraph 7 of Respondent's Second COJ belie this contention however by virtue of the fact that paragraph 7 refers Respondent's alleged interest in the Motel Property that was assigned to the Joint Venture by Lease Assignment Agreement dated April 8, 2004, a copy of which Respondent attached to its Second COJ as Exhibit "C". A review of Respondent's Exhibit "C" reveals that not only was it executed ONE YEAR AFTER the alleged Addendum referred to in paragraph 4, but that the name of the Joint Venture that Respondent assigned its interest in the Motel Property to is "BWCO" not "J7C0" as reflected in the Addendum that was Respondent is asking this Court to believe is a true and 8 , correct document. The fact that Respondent's Exhibit "C" reflects an assignment between Respondent and a Joint Venture that took place one (1) year AFTER the purported Addendum was "executed" begs the question as to why the Lease Assignment Agreement would not reflect the name of the Joint Venture reflected in the Addendum that was executed on year earlier. c. The purported Addendum has a plethora of handwritten changes ' that are not dated or initialed by the alleged parties to the Addendum thus calling into question not only the authenticity of Respondent's Exhibit "B" but the possibility that Respondent's Exhibit "B" was altered and/or forged6; and d. Paragraph no. 17 and the signature line that appears on page three of the purported Addendum reflects that "Country Oven, Inc." was the party to that Addendum and not Petitioner. Country Oven, Inc. is not the signatory identified on either of the two page 35s that appeaz as part of Respondent's Exhibit "A". 15. A plain reading of Respondent's Second COJ reveals that it was filed in direct contravention to Pa. R.Civ.P. 2951(c). 16. A plain reading of the purported warrant of attorney attached to Respondent's Complaint reveals that the Prothonotary did not enter judgment against Petitioner in conformity with the confession in direct contravention to Pa.R.Civ.P. 2956. 6 The question of whether Respondent's Exhibit "B" is a fabricated and/or forged document will be later addressed in the Petition to Open set forth herein. 9 ~ 17. Pennsylvania Rule of Civil Procedure 2952(a)(5) provides that a Complaint in Confession of Judgment must contain either a statement that judgment has not be entered on the instrument in any jurisdiction or if it has been entered an identification of the proceedings. 18. In paragraph 12 of its Complaint, Respondent avers that "judgment has not previously been previously entered on the Joint Venture Agreement in any jurisdiction. This statement is patently false.7 Petitioner would ask the Court to take judicial notice of the fact that on August 16, 2011, Respondent by and through its counsel confessed judgment in ejectment against Petitioner on the same Joint Venture Agreement at Docket No. 11-6476 and included the same averments vis-a-vis Respondent's reliance on their Exhibit "E" and "F". A true and correct of the time stamped first page of Respondent's First COJ, together with the page stating this averment are attached hereto and are mazked as Exhibit "E". The Court properly struck said confessed judgment on September 26, 2011. 19. Pennsylvania law is clear that the entry of judgment on a warrant of attorney has the effect of exhausting the warrant so that a second judgment may not be entered. See 11 Pa. Stan. Practice 2d. §67:42 citing B. Lipsitz Co. v. Walker, 361 Pa. Super. 238, 522 A.2d 562 (1987) ("To start with, it is settled law in this Commonwealth that a judgment may be confessed but once for the same debt"). See also, Atlantic Nat. Trust, LLC v. Stivala Investments, Inc., 922 A.2d 919, 924 (Pa. Super. 2007). That a judgment may be confessed but for once for the same debt is true even under the following circumstances: ' Petitioner believes and therefore avers that by making such false statement in a verified pleading that Respondent, as well as Respondent's counsel, has violated Pa. R.Civ.P. 1023.1. 10 • If it is attempted to enter the second judgment on a different ground or for a different amount; • If the first judgment is prematurely and improvidently entered; • If the first judgment is voidable or void; and • If the ori i~na1 judgment is stricken because of irregularities gpnearing on the face of the record.8 11 Pa. Stan. Practice 2d. §67:42. (Emphasis added) (Footnotes and corresponding case citations intentionally omitted). 20. Petitioner requests that this Honorable Court take judicial notice of the fact that Respondent's First COJ was stricken by Order of Court on September 26, 2011. Petitioner further requests that this Honorable Court take judicial notice of the fact that no timely appeal of the Court's September 26, 2011 Order was filed by Respondent. 21. Pennsylvania Rule of Civil Procedure 2952(a)(7) provides that a Complaint in Confession of Judgment must contain an itemized computation of the amount then due, based on matters outside the instrument if necessary, which may include interest and attorney's fees authorized by the instrument. 22. A review of the Respondent's Complaint in Confession of Judgment reveals that it does not contain the required itemized computation. 23. Pennsylvania Rule of Civil Procedure 2971(a)(2) provides that when filing a Complaint in Confession of Judgment in Ejectment for possession of real property the Complaint must contain a description of the property. g See e.g. Continental Bank v. Tuteur, 303 Pa. Super. 489, 450 A.2d 32 citing Scott Factors, Inc. v. Hartlev, 425 Pa. 290, 228 A.2d 887 (1967). 11 1 24. A review of Respondent's Complaint reveals that Respondent has included an incomplete document purporting to be a"Deed" description for the subject property as Exhibit "D" to its Complaint. There is absolutely no way to verify that the description attached to Respondent's Complaint as Exhibit "D" pertains to the property in question, or to the Parties in interest in direct contravention of Pa. R.Civ. P. 2971(a)(2). 25. Pursuant to 42 Pa.C.S. §2737(3), at the time a creditor files for a judgment by confession under the provision setting forth the power of the prothonotary to enter , judgment of confession, must comply with the Pennsylvania Rules of Civil Procedure regarding confession of judgment, including any notice provisions. 26. Pennsylvania Rule of Civil Procedure 410 provides that "in actions involving title to, interest in, possession of, or charges or liens upon real property, original process shall be served upon the defendant in the manner provided for by Rule 400 et seq." 27. A review of the Complaint in Confession of Judgment and corresponding confession of judgment documents filed by Respondents' counsel Plaintiff reveal that there are fatal defects and/or irregularities which appear on the record, to wit: a. 42 Pa. C.S. §2737.1, which was enacted on December 20, 2000, and became effective February 2001, provides in relevant part that: At the time that a creditor files for a judgment by confession under Section 2737(3) (relating to powers and duties of the office of the Prothonotary), the creditor filing the judgment shall provide the Debtor with the written instructions regarding the procedure to 12 A follow to strike the judgment... The instructions provided to the Debtor sha11 explain to the Debtor that under this Section he is entitled to costs and reasonable attorney's fees as determined by the Court if he was incorrectly identified. b. Pursuant to Pa.R.C.P. 2959, a defendant must also be provided with written instructions regazding the procedure to follow to strike the judgment, and an explanation that a defendant that was incorrectly notified and had a confession of judgment entered against it, is entitled to costs and reasonable attorney's fees as determined by the Court. A review of the Rule 2973.2 Notice provided by Respondent to Petitioner, attached hereto as Exhibit "F" reveals that Respondent and/or Respondent's counsel failed to comply with the statutorily required Notice provision, as set forth in 42 Pa. C.S. §2737.1 and the applicable rule of civil procedure, Pa. R.Civ. P. 2959, and thus there is a fatal defect on the face of the record. See First Union National Bank et al. v. Portside Refrigerated Services, Inc., 2003 Pa. Super. 244 (2003). 28. Pennsylvania law is clear that the court may grant a petition to strike off a judgment if a fatal defect or inegularity appears on the record. See e.g., First Union National Bank et.al. v. Portside Refrigerated Services, Inc., 2003 Pa. Super. 244 (2003); Resolution Trust Corp. v. Copley Qu-Wayne Associates, 546 Pa. 98, 683 A.2d 269, 273 (1996). 13 ~ ' 29. As a direct and proximate result of Respondent s failure to comply with the Pennsylvania Rules of Civil Procedure, Petitioner has had to incur counsel fees and costs associated with the preparation and filing of the within Petition and a request for reimbursement of those counsel fees and costs in an amount not less than $5,000 is hereby made. 30. Petitioner has been and will continue to be prejudiced unless Respondent's confessed judgment in ejectrnent is immediately stricken. WHEREFORE, DefendantJPetitioner, HNS Management, LLC, t/a Country Oven Restaurant f/k/a Sahar Mater Enterprises Carlisle, LLC t/a/ Mater Restaurant Management and Country Oven Restaurant, respectfully requests that this Honorable Court grant this Petition to Strike, strike off the confessed judgment by Respondent against Petitioner, and further award Petitioner all such other relief as is proper and just, included but not limited to counsel fees and costs incurred in the filing of this Petition. II. In the Alternative, Petition to Oaen Confessed Judsment 31. The averments set forth in paragraphs 1 through 30 are incorporated by reference as if more fully set forth at length herein. 32. In the alternative, the Petitioner has good and meritorious defenses that warrant the opening of the confessed judgment to wit: a. The warrant of attorney upon which Respondent has filed its Complaint in Confession of Judgment for Ejectment, and which Respondent has attached to its Complaint as Exhibit "A" is not dated and does not include 14 a signature so placed on the writing that there is no doubt of the intention of the signer to be bound thereby; b. Respondent's Exhibit "B" does not support Respondent's Second COJ in that it contains neither a warrant of attorney nor a reference to the Parties to the Joint Venture Agreement upon which Respondent is purporting to confess judgment against Petitioner; c. Respondent's Exhibit "B" does not support Respondent's Second COJ in that it refers to a Joint Venture Agreement "under the date of August 11, 2003 and is intended to modify, supplement and amend said Joint Venture Agreement". The computer drive path date that appears on the bottom left corner of the Joint Venture Agreement attached to Respondent's Second COJ as Exhibit "A" is Apri128, 2003 NOT August 11, 2003, thus calling into question the authenticity of Exhibit "B".; d. In paragraph 4 of its Second COJ, Respondent avers that the Addendum attached as Exhibit "B" to its Second COJ "amended, modified and supplemented [the Joint Venture Agreement]." The averments in paragraph 7 of Respondent's Second COJ belie this contention however by virtue of the fact that paragraph 7 refers Respondent's alleged interest in the Motel Property that was assigned to the Joint Venture by Lease Assignment Agreement dated April 8, 2004, a copy of which Respondent attached to its Second COJ as Exhibit "C". A review of Respondent's Exhibit "C" reveals that not only was it executed ONE YEAR AFTER the alleged Addendum referred to in paragraph 4, but that the name of the 15 Joint Venture that Respondent assigned its interest in the Motel Property to is "BWCO" not "J7C0" as reflected in the Addendum that was Respondent is asking this Court to believe is a true and correct document. The fact that Respondent's Exhibit "C" reflects an assignment between Respondent and a Joint Venture that took place one (1) year AFTER the purported Addendum was "executed" begs the question as to why the Lease Assignment Agreement would not reflect the name of the Joint Venture reflected in the Addendum that was executed on year earlier. e. Respondent's Exhibit "B" contains a plethora of handwritten, yet un- initialed changes thus calling into question the authenticity of Exhibit "B"; f. The signature that appears under the signature line for "Restawatew" on Respondent's Exhibit "B" is not the signature of any of Petitioner's principals. See Affidavit of Sahar Mater attached hereto and marked as Exhibit "G". Thus, Petitioner believes and therefore avers that Respondent's Exhibit "B" is a forged document. g. 42 Pa. C.S. §2737.1, which was enacted on December 20, 2000, and became effective February 2001, provides that: At the time that a creditor files for a judgment by confession under Section 2737(3) (relating to powers and duties of the office of the Prothonotary), the creditor filing the judgment shall provide the Debtor with the written instructions regarding the procedure to follow to strike the judgment. A Debtor who has been incorrectly identified and had a confession of judgment entered against him shall be entitled to costs and reasonable attorney's fees as determined 16 J by the Court. The instructions provided to the Debtor shall explain to the Debtor that under this Section he is entitled to costs and reasonable attorney's fees as determined by the Court if he was incorrectly identified. h. Pursuant to Pa. R.Civ.P 2959, a defendant must also be provided with written instructions regarding the procedure to follow to strike the judgment, and an explanation that a defendant that was incorrectly notified and had a confession of judgment entered against it, is entitled to costs and reasonable attorney's fees as determined by the Court. A review of the Notice provided by Respondent to Petitioner, (see Exhibit "F") reveals that Respondents and/or Respondents' counsel failed to comply with the statutorily required Notice provision, as set forth in 42 Pa. C.S. §2737.1 ' and Pa. R.Civ. P. 2959, and thus there is a fatal defect on the face of the record. See First Union National Bank et al. v. Portside Refri e~ rated Services, Inc., 2003 Pa. Super. 244 (2003); i. Contrary to the averments set forth in paragraph 13 through 16 of Respondent's Complaint, Petitioner has made a11 payments due and owing in calendar year 2010, as well as all payments due and owing in January 2011 and February 2011, as evidenced by copies of the cancelled checks that are attached hereto and are collectively marked as Exhibit "H". Copies of these checks were provided to Respondent's counsel by letter dated September 27, 2011, a copy of which is attached hereto and is marked as Exhibit "C". 17 ' j. For all of the reasons set forth in Petitioner s Complaint filed against Respondent on June 23, 2011 in this Honorable Court at Docket Number 11-5234, which is attached hereto as Exhibit "A" and is incorporated by reference as if more fully set forth at length herein, Respondent is equitably estopped from asserting an event of default against Petitioner which is a condition precedent to the entry of a confessed judgment; k. Petitioner has advised Respondent that in light of the fraud perpetrated on Petitioner vis-a-vis the release of previously escrowed funds to Respondent, coupled with Respondent's continuing material violations and/or breach of the Parties' Joint Venture Agreement, that all future Joint Venture payments beginning February 2011, would be placed into escrow , pending a satisfactory resolution of the issues between the Parties. See Petitioner's Affidavit attached hereto as Exhibit "G". Based on this knowledge, Respondent is equitably estopped from attempting to confess judgment in ejectment against Petitioner; 1. All joint venture payments for 2010, and the joint venture payment due for January 2011 and February 2011, have been paid contrary to the representations set forth in Exhibit "E" and "F"' attached to Respondent's Second COJ; and M. Pennsylvania law expressly prohibits Respondent from confessing judgment a second time against Petitioner based on the same document that Respondent used to confess judgment against Petitioner on August 16, 18 2011 at Docket No. 16, 2011. Respondent's First COJ was properly stricken by the Court on September 26, 2011. WHEREFORE, Defendant/Petitioner, HNS Management, LLC, t/a Country Oven Restaurant f/k/a Sahar Mater Enterprises Carlisle, LLC t/a/ Mater Restaurant Management and Country Oven Restaurant, respectfully requests that this Honorable Court grant this Petition to Strike, or in the alternative Open the confessed judgment in ejectment by Respondent against Petitioner, and permit Petitioner to proceed with his defenses and counterclaims against Respondents, and further award Petitioner all such other relief as is proper and just, included but not limited to counsel fees and costs incurred in the filing of this Petition. III. Request for Stav of Execution 33. The averments set forth in paragraphs 1 through 32 are incorporated by reference as if more fully set forth at length herein. 34. The law does not favor judgments entered by confession. See e.g., Beckett v. Laux, 577 A.2d 1341 (Pa. Super. 1990). 35. Respondent's second COJ requesting confessed judgment in ejectment failed to adhere to strict statutory requirements as well as the requirements set forth in the Pennsylvania Rules of Civil Procedure. 36. Petitioner has good and meritorious defenses to the Respondent's second COJ which have been timely filed. 37. Petitioner has suffered and will continue to suffer prejudice unless this Honorable Court enters an Order striking the Respondent's second COJ that was entered on 19 . ~ November 7, 2011 and further staying any further execution on the confessed judgment. WHEREFORE, Defendant/Petitioner, HNS Management, LLC, t/a Country Oven Restaurant f/k/a Sahar Mater Enterprises Carlisle, LLC t/a/ Mater Restaurant Management and Country Oven Restaurant, respectfully requests that this Honorable Court (a) grant this Petition to Strike off the confessed judgment, or in the alternative (b) Open the confessed judgment by Respondent and permit Petitioner to proceed with its defenses against Respondent's claims; (c) further stay all proceedings herein; and (d) further awaxd Petitioner all such other relief as is proper and just, including but not limited to counsel fees and costs incurred in the filing of this Petition. Respectfully Submitted, -~Rate, Paige Macdonald-Matthes, Esquire SERRATELLI, SCHIFFMAN, & BROWN, P.C. 2080 Linglestown Road Suite 201 Harrisburg, PA 17110 (717) 540-9170 Date: November 15, 2011 Attorney for Petitioner 20 VERIFICATION I, Sahaz Mater, Member of HNS Management, LLC t/a Country Oven Restaurant f/k/a Sahar Mater Enterprises Cazlisle, LLC t/a Mater Restaurant Management and Country Oven Restaurant, verify that the statements made in the foregoing Defendant's Petition to Strike, or Alternatively Open Confessed Judgment and Request for Stay of Execution are true and correct. I understand that false statements herein are made subject to the penalties of 18 Pa. C.S. Section 4904, relating to unsworn falsification to authorities. HNS MANAGEMENT, LLC T/A COUNTRY OVEN RESTAURANT F/K/A SAHAR MATER ENTERPRISES CARLISLE, LLC T/A MATER RESTAURANT MANAGEMENT AND COUNTRY OVEN RESTAURANT ..-a~ Date: A)v eo gy.,--~:~--~`_"__..._.._.___ Sahar Mater, Member . . CERTIFICATE OF SERVICE I, Paige Macdonald-Matthes, Esquire, hereby certify that I have served a true and correct co of the fore oin Petition to Strike O en and Sta Conf PY g g , p y essed Judginent on the followin g persons by placing same in the United States mail, postage prepaid, on the 15Ih day of November, 2011: JAMES N. CLYMER, ESQUIRE CLYMER, MUSSER, BROWN & CONRAD, P.C. 408 WEST CHESTNUT STREET LANCASTER, PA 17603 COUNSEL FOR PLAINTIFF/RESPONDENT SERRATELLI, SCHIFFMAN & BROWN, P.C. j Paige Macdonald-Matthes, Esquire ANS MANAGEMENT, LLC da : IN THE COURT OF COMMON PLEAS COtJNTRY OVEN RESTAURANT f/Wa . CUMBERLAND COUNTY, PENNSYLVANiA SAHAR MATER ENTERPRISES . CARLSILE, LLC tla MATER . RESTAURANT MANAGEMENT AND . COUNTRY OVEN RESTAURANT, . Plaintiff . . DOCKET NO.. ~ - -i : CIVIL ACTION - AT LAW ; 7- JAIRAM 7, INC., . JURY TRIAL DEMANDED , _ ; Defendant NOTICE YOU HAVE BEEN SUED IN COURT. If you wish to de#'end against the clauns 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 tlie Court your defenses or objections to the claims set forth against you. You are warned that, if you fail to do so, the c,ase 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 reqiiested 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, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW_ THIS OFFICE CAN PROVIDE YOiJ WITH INFORMATION ABOUT HIRING A LAWYER. IF YOU CANNOT AFFORD TO HIRE A LAWYER, THIS OFFICE MAY BE ABLE TO PROVTDE YOU WITH INFORMATION ABOUT AGENCIES THAT MAY OFFER LEGAL SERVICES TO ELIGIBLE PERSONS AT A REDUCED FEE OR NO FEE. Cumberland County Lauryer Referral Service 32 S. Bedford Street Carlisle, PA 17013 (717) 249-3166 AVISO USTED HA SIDO DEMANDADO/A EN CORTE. Si usted desea defenderse de las demandas que se presentan mas adelante en las siguientes paginas, debe tomar accion dentro de los . proximos veinte (20) dias despues de la notificacion de esta Demanda y Aviso radicando personalmente o por medio de un abogado una comparecencia escrita y radicando en ia Corte por escrito sus defensas de, y objecciones a, las demandas presentadas aqui en contra suya. Se le advierte de que si usted falla de tomar accion como se describe anteriormente, el caso puede praceder sin usted y un fallo por cualquier suma de dinero reclamada en la demanda o cualquier otra reclamacion o remedio solicitado por el demandante puede ser dictado en contra suya por la Corte sin mas aviso adicional. Usted puede perder dinero o propiedad u otros derechos importantes para usted. USTED DEBE LLEVA.R EST'E DOCUMENTO A SU ABOGA.DO INMEDIATAMENTE. SI USTED NO TIENE UN ABOGADO, LLAME O VAYA A LA SIGUIENTE OFICINA. ESTA OFICINA PUEDE PROVEERLE INFORMACION A CERCA DE COMO CONSEGUIR UN ABOGADO. SI USTED NO PUEDE PAG.AR POR LOS SERVICIOS DE UN ABOGADO, ES POSIBLE QUE ESTA OFICINA LE Pi1EDA PROVEER INFORMACION SOBRE AGENCIAS QUE OFREZCAN SERVICIOS LEGALES SIN CARGO 0 BAJO COSTO A PERSONAS QUE CUALIFICAN. Cumberland County Lawyer Referral Service 32 S. Bedford Street Carlisle, PA 17013 (717) 249-3166 2 I , • SERRATELLI, SCHIFFIvLIN, BROFPN& CALHODN, P.C. Paige Macdonald-Matthes, Esquir•e Suprenze Court ID No. 66266 2080 Linglestown Road Harrisburg, PA 17110 (717) 540-9170 (717) 540-5481 facsiniile Email.• PMacdonald-MatthesOssbc-lcrw. conz Atrorneys for Plaintiff HNS MANAGEMENT, LLC t/a : IN THE COURT OF COMD'ION PLEAS COUNTRY OVEN RESTAURANT f/k/a : CUMBERLAND COUNTY, PENNSYLVANIA SAHA.R MATER ENTERPRISES . CARLSII.E, LLC t/a MATER • RESTAURANT MANAGEMENT AND . COUNTRY OVEN RESTAURANT, • Plaintiff . : DOCKET NO.: Y. - : CIVIL ACTION - AT LAW JAII2AM 7, INC., . JiTRY TRIAL DEMANDED Defendants. . COMPLAINT AND NOW, comes Plaintiff, HNS Management LLC t/a Country Oven Restaurant f/kla Sahaz Mater Enterprises Carlisle, LLC t/a Mater Restaurant Management and Country Oven Restaurant by and through its counsel, Serratelli, Schiffman, Brown & Calhoon, P. C., and files its Complaint against Defendant, Jairam 7, Inc., and in support thereof aver as follows: PARTIES 1. Plaintiff, HNS Management LLC t/a Country Oven Restaurant (hereinafter "HNS") is a Pennsylvania limited liability company having a registerea place oi 3 I ~ business located at 1245 Harrisburg Pike, Carlisle, Cumberland Counry, Pennsylvania 17013. HNS trades and does business as the "Country Oven Restaurant." Prior to its official name change filing with the Pennsylvania Department of State on or about March 11, 2008, HNS was previously known as Sahar Mater Enterprises Caxlisle, LLC. Sahar Mater Enterprises traded and did business as both Mater Restaurant Management and the Country Oven Restaurant.. The only members of HNS are Ali Mater and Sahar Mater. HNS is hereinaftex referxed to as "Plaintiff'. 2. Defendant, Jairam 7, Inc. (hereinafter "Defendant") is a Pennsylvania business corporation having a registered business address located at 1245 Harrisburg Pike, Carlisle, Cumberland County, Pennsylvania 170I3-1621. JURISDICTIONAND VENUE 3. This Court has jurisdiction over the Parties and the subject matter of this litigation. 4. Venue is proper in Cumberland County, Pennsylvania pursuant to Pa. R.Civ.P. 2179(2) as Cumberland County is a county where all of the Defendants regularly conduct business. 5_ Venue is also proper in Cumberland County, Pennsylvania pursuant to Pa. R.C.P. 2179(4) as Cumberland County is the county where the occurrence took place out of which the Plaintiff's cause of action arose. 4 I , 6. Finally, venue is proper in Cumberland Caunty, Pernsylvania pursuant to Pa. R.Civ_ P. 2179(5) and Pa. R.Civ. P. 1062 as Cumberland County is where the subject Country Oven Restaurant is located. ARBITRATION 7. Plaintiffl s claims exceed the arbitration limits of this Court. BACKGRDUND 8. On or about June 20, 1998, Defendant entered into a Lease Agreement for the kitchen, restaurant and banquet facilities located in what was formerly known as the Best Western-Carlislei located at 1245 Harrisburg Pike, Carlisle, Cumberland County, Pennsylvania_, and what is now known as the Country Oven Restaurant 1 (hereinafter "Lease Agreement") with Beauty Seven, a Pennsylvania general partnership consisting of Nayana A. Parikh, Vasanti J. Parekh and Bharti M. Shah. Despite repeated and numerous requests for a copy of the Lease Agreement from Defendant and more recently, Defendant's counsel, no such document has been provided ta Plaintiff_ As Plaintiff does not have possession of the Lease Agreement, Plaintiff is presently unable to attach a copy of the Lease Agreement t:o this Complaint. Upon information and belief, a copy of the Lease Agreement is in the possession and control of Defendant and/or Defendant's caunsel. ~ NOTE: The Best Westem-Cazlisle was subsequently changed to a Howard Johnson Hotel, which was in turn subdivided by Defendant and the properry is now divided as a Howard Johnson Hotel and a Travel Lodge. 5 I ~ 9_ tlpon information and belief, in April 20042, Defendant and Mater Restaurant MankQemeilt entered into a 7oint Venture Agreement, (prepared by Defendant andlor Defendant's counsel), whereby a joint venture known as "BWCO Joint Venture" was formed. Ali Mater signed the Joint Venture Agreement on behalf of Mater Restaurant Management. A copy of what Defendant has represented to Plaintiff as the Joint Venture Agreement that was signed by the Parties is attached hereto and is marked as Exhibit "A". A copy of the "non-bIack line" version of the Joint Venture Agreement which had been previously given to Plaintiff by llefendant is attached hereto as Exhibit "B". 10. Pursuant to the terms of the Joint Venture Agreement, and specifically paragraph 3 of the same, the operation of the restaurant, banquet haIl and liquor business and the provision of all food and beverage services for patrons of the hotel is under the exclusive supervision of Plaintiff as the "Restaurateur 11. On April 8, 2004, Defendant entered into a Lease Assignment Agreement with "BWCO Joint Venture" pursuant to which Defendant assigned all of its right, title and interest to that portion of the Lease Agreement that relates to the restaurant and banquet facilities located at 1245 Carlisle Pike [sic], Cazlisle, Pennsylvania, subject to the terms of the BWCO Joint Venture Agreement, to BWCO Joint Venture. A copy of the April 8, 2004 Lease Assignment Agreement is attached hereto and is marked as Exhibit "C". 2 NOTE: Although the computer drive path indicated on both Exhibits "A" and "B" attached hereto indicate that the Joint Venture Agreement was prepared on Apri128, 2003, Plainriff believes.and therefore avers that the loint Venture Agreement may have actually been executed by the Parties as late as Apri18, 2004, based on a certain I.ease Assignment Agreement relatulg to the controi of the restaurant and banquet facilities, as wiii be discussea in paragraph I 1 herein_ 6 ~ 12. As Pvidenced by the signature of Beauty Seven's authorized partner General Partner on page 2 of Lease Assignment Agreement, Beauty Seven consented to the assignment of the Lease Agreement from Defendant to the BWCO Joint Venture. 13. As the Joint Venture Agreement is not dated by either Parry, the initial term of the Joint Venture Agreement is not known by Plaintiff. Upon information and belief however, the original term of the Joint Venture Agreement expired in 2008 and was subsequently renewed for another five (5) year term by virtue of the provisions set forth in paragraph 5 of the Joint Venture Agreement. 14. In late 20098, early 2009, Defendant unilaterally determined to subdivide and sell ; the Howazd Johnson Hotel so that the properiy now consists of a 70 room (approximately) Travel Lodge and a 70 room (approximately) Howard Johnson Hotel_ Each one of these hotels now has a separate entrance, as well as separate parking lots. j COUNT IL BREACH OF CONTRACT 15. The averments set forth in paragraphs 1 through 14 are iilcorporated by reference as if more fully set forth at length herein. ~ 16. 1'ursuant to the terms of the Joint Venture Agreement, and specifically paragraph ~ 7 of the same, Defendant is responsible for all renovations to the Banquet Hall ~ and Plaintiff is responsible for all renovations to the Restaurant. ~ I 17. Tn accordance -with the terms of the Joint Venture Agreement, Plaintiff made substantiat renovations to the restaurant, coffee shop and lounge located at the 7 Property. To date, Plaintiff has expended the approximate sum of $350,000.00 in making renovations to the restaurant. 18. Although responsible for the renovations of the Banquet Hall pursuant to the terms of paragraph 7 of the Joint Venture Agreement, Defendant has failed and has othenuise refused to make any renovations to the Banquet Hall. Consequently, Plaintiff has made substantial renovations to the Banquet Hail which renovations to date have cost Plaintiff the approximate sum of $350,000.00. 19. Pursuant to paragraph 9A of the Joint Venture Ab eement, Defendant is responsible for the (i) repair and maintenance of the structural components of the Property (consisting of the footings, foundation, structural steel, exterior brick masonry work, and the building roo fl; (ii) the repair and restoration of the interior of the Property damaged as a result of darnages or repairs or maintenance to the Property's struc:tural components, and (iii) repair and maintenance of the HVAC system; and (iv) repair and maintenance of all utility lines on the Property, except those inside the Restaurant and Banquet Hall, and not buried or encased. 20. Contrary to the provisions of Paragraph 9A of the Joint Venture Agreement, Defendant has failed and has otherwise refused to properly maintain and repair the roof on the Property. Consequently, every time it rains the ceiling in the i restaurant, including the coffee shop, bar and dining room leaks to such a degree that Plaintiff must install buckets at the conesponding leak locations to prevent customers from slipping and falling on the hardwood floors that PIaintiff has installed_ Color photographs of the water damage in the coffee shop, the ceiling S I falling down by the dishwashing stand in the kitchen due to the roof lea.k-, the leaks in the dining room ceiling and the water damage to the ceiling above tlie coffee station are attached hereto and are collectively marked as E?chibit "D". 21. As a direct and proximate zesult of the roof leak, the hazdwood floors that Plaintiff has installed in the restaurant and coffee shop are now warped and permanently water stained. See Exhibit "D." In addition, on January 15, 2011, the roof leak caused several ceiling tiles in the banquet room to fall down during an event that was taking place there. Finally, the roof leak caused damage to Plaintiff's freezer. A picture of the damage to Plaintiff's freezer as it continues to exist as of June 23, 2011, is attached hereto and is mazked as Exhibit "E". 22. On May 19, 2011, Plaintiff sent the Defendant's Office Manager an email notifying Defendant that the coffee shop roof was leaking all over fhe tables. Defendant faileii and otherwise refused to respond to this email. A true and correct copy of the May 19, 2011 email is attached hereto and is markeri as F;xhibit "F" 23. Contrary to the provisions of Paragraph 9A of the Joint Venture Agreement, Defendant has failed and has otherwise refused to properly maintain the sewer lines located outside of the banquet facility. Consequently, every time Plaintiff books a large e~,ent in the banquet facility, the bathrooms in the banquet facility back up. ' 24. In ox about November 2010 Plaintiff contacted a plumbing conixactor to come in and review the problem with the sewer lines located outside of the banquet facility. Said contact was made with the plumbing contracting following an event 9 . « that took place in the banquet facility for 300 people and the bathrooms in the facility backed up. According to the plumbing contractor hired by Plaintiff, Roto Rooter, the problem is with the main sewer line outside of the banquet ha11 and despite the fact that the plumbing contractor specifically discussed the problem with the sewer line with the Defendant, Defendant continues to refuse to address the issue. 25. Contrary to the provisions of Paragraph 9A of the Joint Venture Agreement, Defendant has failed and has otherwise refused to properly maintain and repair the HVAC system. Consequently, both the Restaurant and Banquet Hall are not properly heated during the fall and winter months and are not properly air conditioned during the spring and summer months. II~ 26. In order to address the problem with the HVAC system, Plaintiff advised Defendant in 2010 that Plaintiff would replace the HVAC system in the Banquet Hall and in retum Plaintiff's obligation to pay Defendant a"Venture Distribution" in accordance with paragraph 4 of the Joint Venture Agreement would be abated. Defendant objected to Plaintiff's proposal and the Parties eventually agreed that they would split the cost of the new HVAC system, which was $5,000. Contrary to Defendant's promise, by and through its authorized agent, "Jeetal", to pay one- half of the costs associated with the new HVAC system, Defendant only paid Plaintiff the sum of $3,500.00. 27. Following Plaintiff's installation of the new HVAC system, it was discovered that ~ -the electrical wiring in the Property was in such poor condition that it could not II i support the ne:w HVAC system that was installed. Despite repeated and ~ I 10 riumerous requests for Defendant to address and repair the etectrical problems in accordance witYi pazagraph 9A of the 3oint Venture Agreement, Defendant has failed and has otherwise refused to address the electrical problems in the Property. 28. Pursuant to paragraph 9F of the Joint Venture Agreement, Defendant is r.esponsible for the maintenance of the parking lot areas. 29. For the past three (3) years, Defendant has failed and has otherwise refused to properly maintain th.e pazking areas. Specifically, Defendant has caused debris in the parking lot areas to build up, and has further allowed tree branches, tree stumps, masonry blocks and weeds to be dumped in the parking Iot areas. Color photographs depicting the condition of the parking ]ot as of June 21, 2011, are attached hereto and are collectively marked as Exhibit "G". 30. Pursuant to paragraph 3B of the Joint Venture Agreement, Defendant is responsible for the operation of the Hetel. Part of Defendant duties and ; i resnonsibilities as the operator of the Hotel is to make sure that the establishment is clean and fre.e of pests. 31. Defendant has failed to pzoperly maintain the Hotel to ensure that it is free from pests and consequently, Plaintiff now has a cockroach infestation problem. 32. While Plaintiff has retained the services of Terminix to address the pest control problem in the restaurant and banquet hall, Plaintiff has been advised by Terminix that the treatcraent is not working due to the fact that Defendant is not similarly treating the hotel rooms which are located in the same building as the restaurant. In fact, these are the very same rooms in which some of the hotel employees I ll reside. Plaintiff's offer to bring Terminix in to give the Defenda.nt an estimate for their services has been rautinely ignored by Defendant. 33. As a duect and proximate result of the problems associated with the leaking roof, the faulty sewe.r line, the HVAC system, the pest problem and the parking lot, Plaintiff has been advised by event coordinators located in and about the Carlisle area, including Mary Jane Ziegler, that they will no Ionger book any functions at Plaintiffl s business. The loss of several opportunities to book iarge groups for the banquet hall during the past year has resuited in a substantial loss of revenue to Plaintiff. 34. Pursuant to paragraph 16 of the Joint Venture Agreement, parking on the entire tract of land camprising the Property shall be available for customers of both the II Hotel Rooms and Restaurant portions of the Property. 35. In or about the last part of 2008, early 2009, Defendant unilaterally determined to close a vital area of the parking lot that was previously available for truck paxking. As a direct and proximate result, there is very little, if any, parking area for truckers who regularly frequent the restaurant and coffee shop. 36. During the past several months, there were three (3) separate incidents where Defendant's hotel staff harassed Plaintiffls customers who were dining in the Country Oven for parking in the "dip" which is the dedicated parking lot for the banquet facility. The Plaintiff s customers were told by hotel front desk staff members that if they did not move their trucks they woutd be towed and the police would be called. The most recent event occurred in May, 2011, where a National Freight driver, "Mike" and a NNT driver, "Tony" were harassed by ~ ~ 12 ~ . Defendant's employees for pazking their trucks in the parking area, contrary to the clear provisions of paragraph 16 of the Joint Venture Agreement which gave them the right to pazk in the Iot. 37. In addition to Plaintiff's customers being harassed and verbally assaulted by Defendant's employees, Plaintiff has also been verbally harassed by Defendant's employees. Specifically, on November 20, 2010, Defendant's eznployee, Anilkumar R. Parikh ("Anil") entered the kitchen of the restaurant and started yelling at PlainrifPs employee and his father-in-taw (who was also in the kitchen assisting him) telling thexn that he was going to "shut them down." Anil's actions were so threat:ening that the police had to be called and upon information and belief a citation for disorderly conduct was issued to Anil. A true and correct copy of the police report conceming the November 20, 2011 incident is attached hereto and is marked as Exhibit "H". 38. Defendant's action, by and through its agent, materially breached Plaintif£'s right , to quiet enjoyment of the restaurant premises. i 39_ Pursuant to pazagraph 9G of the Joint Venture Agreement, the responsibilities for ~maintenance, zepair and improvements set forth in paragraphs 9A-H of the ; ~ Agreement are prernised upon the configuration of and the facilities upon the J ~ Property as existing at the time of execution of the Agreement. This paragraph further provides that "Should the configuration and/or facilities be changed materially subsequent to the execution of the Agreement, the parties will negotiate in good faith in an attempt to reconsider the responsibilities for repair and maintenance as set forth in the Agreement. 13 40. In or about 2009, Defendant unilaterally determined to subdivide the Property which resulted in the creation of two (Z) separate hotels, to wit: the Howard Johnson Carlisle and the Travel Lodge. Plaintiff was never consulted about tkus change, nor was Plaintiff advised that such change was occurring until it was completed. 41. As a direct and proximate result of Defendant's unilateral decision to subdivide the Property, there are now two separate entrances instead of one entrance that previously led into the restaurant and coffee shop which has resulted in a significant decrease in the amount of customers for the restaurant and coffee shop. 42. 'I'he significant decrease in the amount of customers for the restaura.nt and coffee shop, coupled with the loss o€the banquet business has resulted in a financial loss of approximately $239,000.00 for Plaintiff for combined calendar years 2009 and 2010, as evidenced by the Point of Sale print outs attached hereto and collectively marked as Exhibit "I". 43. On September 8, 2009, Plaintiff sent Defendant written notification of its breach of the Joint Venture Agreement and gave Defendant thiriy (30) days to correct the problems. A true and correct copy of the Septernber 8, 2009 letter is attached hereto and is niarked as Exhibit "J". 44. Upon receipt of the September 8, 2009 letter, coupled with Plaintiff's threat to withhold venture distribution payment until such bxeach was cured, Defendant agreed to meet with Plaintiff to discuss the problems. Despite Defendant's assurances that Defendant's breach would be cured if Plainliff made the joint venhue payment due, Defendant failed to honor its agreement to cure its breach. 14 ~ 45. As a direct and proximate result of Defendant's breach of its oral promise to cure its breach, Plaintiff orally natified Defendant that commencing October 2010, Plaintiff would be paying the Joint Venture Distribution payments into an escrow account until such time that the breach was cured. 46. On or about December 31, 2010, Plaintiff received a letter from Defendant's counsel, James Clymer advising Plaintiff that it was "in default of the Joznt Venture Agreement" due to the non.-payment of the Joint Veniure distribution payments. A true and carrect copy of the December 31, 2010 letter is attached hereto and is marked as Exhibit "K". 47. On January 3, 2411, Plaintiff sent Defendant's counsel a letter outlining the reasons why Plaintiff had not made the payments to Defendant. A true and correct I I copy of Plaintiffls January 3, 2011 letter is attached hereto and is marked as Exhibit "L". 48. On Januazy 17; 2011, Defendant's counsel wrote to Plaintiff and advised that Plaintiff that "beginning January 22, 2011, Harshad Desai will be on-site for 2-3 weeks to meet with [Piaintif£] and come to an understanding on how to resolve the conflicts of the past and correctly identify the responsibilities of each party for the items that need to be repaired now." Counsel further represented that at the conclusion of the meeting, the Parties agreement would be memorialized in "Memorandum of Understanding" which would act as an amendment to the Joint Venture Agreement." A true and correct copy of the January 17, 2011, letter is attach.ed hereto and is marked as Exhibit "M." i ~ I5 II I ~ i . i . i 49. In reliance on the representations of Defendant's counsel, Plaintiff atrreed to pay ~i Defendants the sum of $25,600.00. However, contrary to the assurances given by ' Defendant's counsel no such meeting between Defendant and Plaintiff occurred and the problems identified by Plaintiff continue to go unresolved. 50. In February, 2011, Plaintiff again orally notified Defendant that Plaintiff would again resume making payments into an escrow account until such time that Defendant cured its breach. 51. As of the date of the filing of this Complaint, Defendant has failed and has otherwise refused to cure its breach of the Joint Venture Agreement. 52. As a direct and proximate result of Defendant's breach, Plaintiff has incurred damages in excess of $250,000. Such damages include the following: ' a. Damage to wood flooring in restaurant and coffee shop- $2,000.00 b. Defendant Outstanding Share of Cost for new HVAG $500.00 c. Plaintiffs Total Cost of HVAC that does not work due to faulty electrical wiring in premises- $4,000.00 d. Loss of Revenue due to reconfigurarion of hotel $239,000 e. Water damage to tables and chairs (refinishing costs) - $800.00 f. Terminix Invoices $1,500.00 g. Compressor for freezer damaged by water leak $2,800.00 WHEREFORE, Plaintiff, HNS Management, LLC, respectfully requests that this Honorable Court enter judgment in its favor and against Defendant, Jairam 7, Inc. in an amount 16 in excess of $250,000, together with interest and costs, and further award Plaintiff a11 such other relief as is proper and just. COUNT III- FR4 UDULENT MISREPRESENTATION 53. The averments set forth in paragraphs 1 through 52 are incorporated by reference as if mare fully set forth at length herein. 54_ On September 8, 2009, Plaintiff sent Defendant written notification of its breach of the Joint Venture Agreement and gave Defendant thirty (30) days to correct the problems or else Plaintiff would contact the Board of Health andlor take legal against Defendant. I 55. Upon receipt of the September 8, 2009 letter, coupled with Plaintiff s threat to ' withhold Joint Venture distribution payment until such breach was cured, Defendant by and through its agent, 3eetal Parikh agreed to meet with Plaintiff to discuss the problems_ Despite DefendanYs assurances that Defeadant's breach would be cured if Plaintiff made the joint venture payment due and further did not pursue legal action against Defendant to enforce andlor terininate the Joint Venture Agreement, Defendant failed to honor its agreement to cure its breach. I 56. Defendant's representation that if Plaintiff paid the Joint Venture Distributions i i Defendant would cure its breach by way of the application of Plaintiff's payment of the Joint Venture Distribution payment was made falsely and with knowledge of its falsity. Alternatively said statement was made by Defendant with reckless , indifference as to whether such statements were true or false. , 17 ~ , . 57. Defendant made such statement and representation to Plaintiff with the specific intent of misleading Plaintiff into relying on the same and paying Defendant the Joint Venture Distribution payments. 58. As Plaintiff believed that Defendant was dealing in good faith, and fiu-ther that Jeetal Parikh was clothed with the authority to act on behalf of the Defendant and commit to the terms of the Parties' oral agreement, Plaintiff justifiably relied on Defendant's statement and representation and agreed to (a) not to bring legal action against Defendant to terminate the Joint Venture Agreement and (b) pay ' Defendant the Joint Venture Distribution requested by Defendant. 59. As a direct and proximate result of Defendant's fraudulent misrepresentation, P]aintiff suffered damages, as more specifically set forth in paragraph 53 herein. 60. Defendant, by and through its authorized Iegal counsel further represented to Plaintiff on January 17, 2011, that if Plaintiff paid Defendant the sum of $25,600.00 (which sum represented the amount of the Joint Venture Distributions for October 2010-January 1, 2011, that Plaintiff had escrowed in light of Defendant's breach of the Joint Venture Agreement ) that Defendant would meet with Plaintiff and address the problems that constituted a material breach of the Joint Venture Agreement by Defendant. See Exhibit "M" attached hereto. 61. Defendant, by and through its authorized legal counsel further represented to Plaintiff that a"Memorandum of Undersianding" would be drafted incorporating the terms of the Parties' settlement discussion and that said Memorandum of Understanding would "act as an amendment to the Agreement so that there was a process for resolution of complaints in the future. 18 . ~ 62. Defendant's representations to Plaintiff as set forth in paragraphs 61 and 62 herein were made falsely, and with the knowledge of its falsity. 63. Defendant's representations to Plaintiff were made with the specific intent of misleading Plaintiff into relying on the same. 64. As Plaintiffbelieved that Defendant was dealing in gaod faith, and further that Defendant's attorney, James Clymer, Esquire was clothed with the authority to act on behalf of the Defendant and commit to the terms of the Parties' oral agreement, Plaintiff justifiably relied on Defendant's statement and representation and agreed to (a) nat to bring legal action against Defendant to terminate the Joint Venture Agreement and (b) pay Defendant the Joint Venture Distribution requested by Defendant. 65. As a direct and proximate result of Defendant's fraudulent misrepresentation, , Plaintiff suffered damages, as more specifically set forth in paragraph 53 herein. ~ 66. Upon information and belief the representations made by the Defendant in 2009, and in 2011 were not only intentionalIy misleading and false, the representations made by the Defendant was for the purpose of securing additional cash for Defendant so that Defendant could renegotiate the terms of its mortgage and further advance the pecuniary interests of Defendant's principals. By advancing its own pecuniary interest to the financial detriment of Plaintiff, Defendant acted in callous disregard of Plaintiff's best interests and in a willful and wanton manner warranting the imposition of punitive damages against Defendant in Plaintiff's favor. 19 . • WHEREFORE, Plaintiff, HNS Management, LLC; respectfully requests that this Honorable Court enter judgnent in its favor and against Defendant, Jairain 7, Inc. in an amount in excess of $300,000, plus interest and costs and punitive damages, and fzlrttier award Plaintiff all such other relief as is proper and just. CUUNT IV- T'ORTIOITS INTERFEREIIFCE WITH PROSPECTIVE CONT`RACT'UAL RELATIONS 67. The averments set forth in paragraphs 1 tluough 66 are incorporated by reference as if more fully set forth at length herein. , 68. Although not contractually obligated to do so, between 2003 and June 23, 2011, ~ Plaintiff expended a substantial sum of money making renovarions to the banquet hall facility. 69. Defendant knew at all times relevant that the rentat of the banquet hall facility was a major source of revenue for Plaintiff. 70. Defendant knew at all times relevant that the HVAC system servicing the banquet hall was in a state of such disrepair that the banquet hall was not properly heated during the fall and winter months and was not properly cooled during the spring and summer months. ~ 71. Defendant knew at all times relevant that the sewage line outside of the banquet facility was in a state of disrepair such that the bathroom facilities in the banquet hall are not equipped to handle a large volume of users. 72. Defendant further knew at all times relevant that the roof of the banquet hall leaks and that said roof leaks were causing a tremendous amount of water damage to ulc banquet faciliiies. 20 73. Despite Plaintiff s repeated and numerous requests for Defendant to make the repairs necessary ta the banquet hall such that Plaintiff could successfully market and book events at the banquet hall, Defendant fai.led and otherwise refused to act on Plaintiff's requests. 74. Plaintiff specifically advised Defendant in 2008, September 2009, and again in December 2010, that if the required repairs were not made to the to the banquet facility that Plaintiff would lose banquet contracts. ' 75. Defendant delibera.tely engaged in a campaign to harm Plaintiff by preventing Plaintiff from being able to enter contractual relationships for the banquet hall due to the facilities compiete state of disrepair, coupled with the appalling conditions of the parking lot servicing the banquet facility. 76. Defendant had no privilege or justification for deliberately engaging in a course of conduct designed to frustrate Plaintiff's ability to successfully contract events for the banquet facility. 77. The appzoximate vaiue of the banquet contracts for 2011 that Plaintiff has lost for the banquet facilih' as a direct and Proximate result of Defendant's actions is $10,000. WHEREFORE, Plaintiff, HNS Management, LLC, respectfully requests that this Honorable Court enter judgment in its favor and against Defendant, Jairam 7, Inc. in an amount 21 in excess of $300,000, plus interest and costs, and further award Plaintiff all such other relief as is proper and just. Respectfully submitted, Paige Macdonald-Matthes, Esquire Attorney ID No. 66266 SERRATELLI, SCHIFFMAN, & BROWN, P.C. 2080 Linglestown Road, Suite 201 Harrisburg, PA 17110 (717) 540-9170 Date: June 23, 2011 i 22 i VERIFICATION I, Sahar Mater, Member of Sahar Mater Enterprises Cazlisle, LLC, verify that the statements made in the foregoing Complaint are true and correct. I understand that false statements herein are made subject to the penalties of 18 Pa. C.S. Section 4904, relating to unswarn falsification to authorities. , SAHAR MATER ENTERPRISES CARLSILE, LLC Date: By: Sahaz Mater, Member , 22 i SERRATELLI SCHIFFMAN & BROWN p.c. June 14, 2011 11-072 VIA TELECOPY ONLY STEVEN J. SCHIFFMAN James N. Clymer, Esquire te17i7.6g5.2g14 CLYMER, MUSSER, BROWN & CONRAD P.C. f¢z 717.635•2944 408 West Chestnut Street sschiffman@ssac-i.am.coM P. O. BOX 1766 Lancaster, PA 17608-1766 Re: Mater Restaurant Management/Jairam 7 Inc. 2080 LINCLE5TOWN RD. STE 201 HARRISBURG, PA 17110-9670 Dear Mr. Clymer: tel 717•540.9170 fQx717.540-54$1 I am in receipt of your conespondence da.ted June 9, 2011 with regard to the above-referenced matter. www.ssBo-i.nw.cors Please be advised that Attorney Ric Martsolf of our office represents Sahar Mater Enterprises Cazlisle LLC in this matter. Please direct all further communications to his attention. Mr. Martsolf is currently out of town and we request an additional ten (10) days to review this matter and consult with our clients. Best regards. ~ V ruly your , , V ~ Steven J. hiffman SJS/ner cc: Ms. Sarah Mater e ~ SERRATELLI SCHIFFMAN & BROWN P.c. ~ September 27, 2011 PAIGE MAmONALD-MATTHES Via Facsimile and Regu/ar Mail (717) 299-5115 tet 717.635.2922 James N. Clymer, Esquire fax7i7.635•=952 Kathleen E. Holmes, Esquire Clymer, Musser, Brown & Conrad, P.C. pmacdonald-matthes@sssaraw.coM 408 W. Chestnut Street Lancaster, PA 17603 2080 LINGLESTOWN RD. STE 201 RE: Jairam 7, Inc. v. HMS Management, LLC tla Country - AAR$ISBURG, rn 17110-9670 Oven Restaurant f/fda Sahar Mater Enterprises Carlisle, LLC t1a Mater Restaurant Management and tel7i~.54o.gi'7o Country Oven Restaurant f¢x 717.540.5481 www.sssc-L,sw.coM Dear Counsel: 1 am writing to you regarding the Complai_nt in Confession of Judgment you recently filed against my client in the Court of Common Pleas, Cumberland County at Docket No. 11-6476. While the Court properly entered an Order yesterday striking that Confessed Judgment, statements made toda~ on the record by Ms. Holmes, coupled with the verified pleading filed with the Court today in response to the Petition to Strike/Open/Stay Confessed Judgment, suggest that you and your clients may attempt to "re-file" a Complaint in Confession of Judgment against my client. For the reasons set forth herein, I suggest that you reconsider proceeding in this manner against my client. I i ' I note that Ms. Holmes verified the September 26, 2011, pleading in lieu of your ' clients. Pennsylvania Rule of Civil Procedure 1024 clearly states that "the verification of a pleading must be made by one or more of the parties filing it unless all the parties either: (1) lack sufficient knowledge or information; or (2) are outside the jurisdiction of the court and the verification of none of them can be obtained within the time allowed for filing of the pleading." As a general rule, a party's attorney may not verify that party's pleading. 4 Stan. Pa. Practice ed. §21.31 (Database updated September 2011) citing Pa. R.Civ. P. 1002. Indeed, fhe law is clear that an attorney cannot verify a[pleading] without setting out the special circumstances requires by the nonparty rule. Id. ~ k S .S 9 . ~ s SERRATELLI SCHIFFMAN & BROWN p.c. ~~r 7 > ~ James N. Ciymer, Esquire Kathleen E. Holmes, Esquire September 27, 2011 Page Two As a preliminary matter, a review of your previously filed Complaint in Confession of Judgment reveals that it was based on an alleged claim that my client had "failed and refused to pay the agreed upon joint venture distribution within the terms as shown by the Default Notice Letter dated December 31, 2011," a copy of which you attached to your pleading as Exhibit "B." Specifically, you alleged that my client had failed to make payments for the months of October, November and December of 2010, and further allegedly failed to pay rent for the month of January 1, 2011. Such claims are patently false however, in light of the copies of the cancelled checks for calendar year 20102 and January 2011 and February 20113 which are attached hereto and are collectively marked as Exhibit "A". As you and your clients were required under Pa. R.Civ. P. 1023.1(c) and 1023.1(c)(3) to make a reasonable inquiry into the veracity of the facts set forth in any pleading filed with the Court, your recently filed Complaint in Confession of Judgment not only was void of any legal and factual merit, it was also filed in derivation of the Rules of Civil Procedure. I am further concerned by the fact that Ms. Holmes certified to the Court in the "Answer to Defendant's Petition to Strike, or Alternatively Open Confessed Judgment and Request for Immediate Stay of Execution" (by virtue of the Attorney's Verification attached to the pleading) that all Joint Venture payments for 2010 and January 2011 have not been paid. See Plaintiff's September 26, 2011, Answer at paragraph 43g. In fact, Ms. Holmes even went so far as to plead the following "On the contrary, it is averred that no Joint Venture payment has been made since September 2010, and if any funds 2 NOTE: There is no check for the month of October 2010. The reason why there was no check is that my client paid the full cost associated with the new HVAC system installed in the premises and your clients agreed to pay one-half the cost for the same, which equated to the payment otherwise due for October 2010. See HNS ManagemenYs properly verified Complaint filed at Docket No. 2011-5234 at paragraph no. 26. 3 Curiously, and while not otherwise entitled to receive two joint venture payments, your client cashed two separate payments from my client that were made in February2011. See Exhibit "A". SERRATELLI SCHIFFMAN & BROWN P.c. t~~~~ ~ James N. Clymer, Esquire Kathleen E. Holmes, Esquire September 27, 2011 Page Three were placed into an escrow account as alleged, it is further averred ! that Respondents have not provided any proof of the same." Id. Not only were the allegations made by Ms. Holmes on behalf of I your clients in the Answer that was filed with the Court yesterday patently false in light of Exhibit "A" attached hereto, they are also false based on the fact that since January 3, 2011, you have had in your posession a letter from my client in which it specifically states in the second line of the first page, "I have held the rent after addressing numerous problems vital to the operation of the restaurant." I would further direct your attention to the third to last line of the second page of that same letter wherein my client states, "Your clients have left me with no choice but to hold the rent until all needed repairs have been professionally mended." Indeed, not only are the statements contained in the Attorney Verified Answer you filed on behalf of your client yesterday made in direct contravention of the Rules of Civil Procedure, they are also in direct contravention to the Rules of Professional Conduct requiring candor to the tribunal. Finally, yesterday Ms. Holmes represented to the Court that she would be "re-filling" a Complaint in Confession of Judgment and this time would properly be attaching "a signed writing." I was quite surprised to hear this given the fact that your specifically represented to me an email dated June 22, 2011, that you did not have a clean (i.e. non-black lined version), signed copy of the Joint Venture Agreement. See Defendant's Petition to Strike, Exhibit "C": Ms. Holmes statement to the Court thus begs the question of whether Ms. Holmes was mistaken as to the actual existence of such document, or whether your prior statements to me regarding the existence of such a document were deliberately misleading. In any event, as my client clearly was never a party to the Joint Venture Agreement and Pennsylvania law precludes the entry of a confessed judgment against an assignee (assuming arguendo that there was a valid assignment of the agreement in the first place), you are foreclosed by the Rules of Civil Proceeding from making any further attempt to confess judgment against my client based on the Joint Venture Agreement. SERRATELLI SCHIFFMAN & BROWN P.c. ~ James N. Clymer, Esquire Kathleen E. Holmes, Esquire September 27, 2011 Page Four For all of the foregoing reasons, coupled with the reasons outlined in my Petition to Strike/Open and Stay that was previously filed and stricken as of today) Complaint in Confession of Judgment, I am sending you notice under Pa. R.Civ. P. 1023.1 that the claims that you have previously raised in the Court, as well as the claims you suggested to the Court will again be raised in another complaint in confession of Judgment filed against my client, are not supported. by existing law and lack any factual or evidentiary support. Please be advised that if my client is forced to continue litigating these otherwise meritless claims raised by you and your clients, we will be seeking the imposition of sanctions against you, your firm, and your clients. Please be guided accordingly. Sincerely, SERRATELLI, SCHIFFMAN & BROWN, P.C. Paige Macdonald-Matthes, Esquire PMM/aea Enclosures cc: Sahar Mater, HNS Management, LLC (w/encl.) 7X Result Report p 1 , • 09/27/2011 09:46 Serial No. CM25229obom '1IC: 54458 Destination Start Time TiMe Priirts Resul Note ' 25f4r115 09-27 09:40 00:05:51 020/OZO OK ~ Note T r TiNf X i 1~ 11 = t~i 1t e ZC ti11~. iF~t F~'e1~E EI'aC ~X. AX•. InLCI'~1D ~Fa1Cxf13~dDFIta1.~L'. ~BU11C in.iSIP: F=C~TSXeF~ TX. Result oit: Carunication oK S-OK: Stop Comunication, PW-OFF: Pover Srritch OFF, TEt.: RX from TEI., NG: Other Error, Cont: Cvntinue, Flo An.s: Ho Answer, Refuse: Receipt Refused, Busy: Busy, M-Fu11:Menon+ Full, LOYR:Receiving length Ouer, P0VER:Receivin9 page Over, FIL:File Error, DC: Decode Error, FON: MDN Re.sponse Error, DSN: DSN Response Error. SGRRATxLLI. SGHIFFIYIAN $ BROWN. PC 2080 Lmcn-msrowN Rawo, Surrm 201 H.uewssurem. PA 17190 PMONE (717) 640-9170 PAx (7'17) 640-6481 FACSIM~LE TRANSMISSION ~ATE: Saptember 27, 2011 T0= James N. Clymer Esquire and Kathloen E_ Holmas; Esquim FROM: Paige Macdonald-Matthos, Esquire FAX: 717-299-5115 RE: Jairam, 7, Inc. v_ HMS Manmosmont, LLC !/a/ Country Ov4mn R4b=taurant T/Ic/a BaMar Matior Entorprisa Gar11s1m, LL..C t/a Mator R4mat=urant Manapsment and Country Ovon Rsataurant NO. OF PAt3ES (including cover sheat): a~ MESSAGE: If thana aro any prpblarns with this transmission, pleasB ca11.4shleigh Anglemayar at (717) 540-9170. FAX COVlR NpTCE OF CONPICEKf1ALlly TFI! INrO1M?\TIdV GONTAIN~O IN THIf RAGIMIIt M<iMaE {i ~NT~O ONLY VOR M~i11~0lML ANp CONr10lMlIJ_ Y~! OI I! OEiION/~TEO R6Ci/Mlff'SlMMlO /r0\/E. TFNs YfmV.Of T MAY eR AN ATTORNtY-0l1~NT COMIMUNIGTON. A~iO M WOM N AlM6LO<O AIVO OONAOlMML. IR TFR RfAM1m OR TFIIf MUift^Ot 1o NOT TNR INt7wAoe0 ft/OWMENT OR AN ASlNT PIlWO~Ml~t.t ~ OKIVMM/O TTO TMi M+il~O~1 ~VOI~T. YOu Mt FlmmY NcyTwIfO T~MTYOU ~MV! RlOEIVEO 7FY6 ~OC'YMI~lIT W Mtl101l. ANb 7fMT ANV ,!!VIlW. O1i~/MMT10N. WKIl~lfT10M OR OOVYINO Or TMi M160i/~O! IS iTR10TyY P~lO"INT<p. If YqJ ~ys wJoM1%Mo -naa oOMMu"uYwN na oe04ow. ~e-aE NOTFY U6 IMMlOMTlLV SV TRIi'PHdJE Awb NEfuRN T1E OR~0INAL Ml90Ap,e TO V0 OY NMII AT OlN! !)iVENSl. T~K YpV. SERRATELLI, SCHIFFMAN 8c BROWN, PC 2080 LINGLESTOWN ROAD, SUITE 201 HARRISBURG, PA 17110 PHONE (717) 540-9170 FAx (717) 540-5481 FACSIMILE TRANSMISSION DATE: September 27, 2011 TO: James N. Clymer Esquire and Kathleen E. Holmes; Esquire FROM: Paige Macdonald-Matthes, Esquire FAX: 717-299-5115 RE: Jairam, 7, Inc. v. HMS Management, LLC tla! Country Oven Restaurant f/kla Sahar Mater Enterprises Carlisle, LLC t/a Mater Restaurant Management and Country Oven Restaurant NO. OF PAGES (including cover sheet): a~ MESSAGE: If there are any problems with this transmission, please call Ashleigh Anglemeyer at (717) 540-9170. FAX COVER NOTICE OF CONFIDENTIALITY THE INFORMATION CONTAINED IN THIS FACSIMILE MESSAGE IS INTENDED ONLY FOR THE PERSONAL AND CONFIDENTIAL USE OF THE DESIGNATED RECIPIENTS NAMED ABOVE. THIS MESSAGE MAY BE AN ATTORNEY-CIIENT COMMUNICATION, AND AS SUCH IS PRIVILEGED AND CONFIDENTIAL. IF THE READER OF THIS MESSAGE IS NOT THE INTENDED RECIPIENT OR AN AGENT RESPONSIBLE FOR DELIVERING IT TO THE INTENDEO RECIPIENT, YOU ARE HEREBY NOTIFIED THAT YOU HAVE RECEIVED THIS DOCUMENT IN ERROR, AND THAT ANY REVIEW, DISSEMINATION, DISTRIBUTION OR COPYING OF THIS MESSAGE IS STRICTLY PROHIBITED. IF YOU HAVE RECEIVED THIS COMMUNICATION IN ERROR, PLEASE NOTIFY US IMMEDIATELY BY TELEPHONE AND RETURN THE ORIGINAL MESSAGE TO US BY MAIL AT OUR EXPENSE. THANK YOU. _ 'i ^a„A 2 . , Paige Macdonald-AAatthes from: Paige Macdonak!-Matthes SeM: Wednesday, June 22, 2011 1:49 PM To: 'James N. Clymer' Subjact: RE: Jairam- Mater Jim: Thank you for the expianation. it appears however, that you may not be getting a true expianation from your client. The reason 1 say this is that the "clean" joint venture agreement that you first to sent me consists of 30 pages. The black line version that you sent via your second email consists of 35 pages. The signature page (which is not part of a black line dxument) bears the page number 35. This means that an additional 5 pages of the agreement were added at some point. I need to see/have a copy of the clean document consisting of 35 pages that was signed by the parties. , i Please get back to me on this ASAP. Thanks, Paige Paige Macdonafd-Matthes, Esquire Serratelli, Schiffman & Brown, P.C. 2080 Linglestown Road Harrisburg, PA 17110 (717) 540-9170 ~ pmacdonald-matthes@ssbc-law.cam ~I ~ ' From: lames N. Cymer [mairw: jirnOcmbdaw.ootn] Smb YVednesday, June 22, 2011 1:38 PM To: Paige Maodonald-Mattties SubjeM RE: ]alram- Mater I agree with your assessment. It would appear that there was another clean copy that was signed but when I asked for the signed version, that was all they couid come up with. I betieve 1 had prepared the original draft but someone else black lined amendments to it and I was not involved in those changes nor in the execution. I have been assured that the btack lined versinn is what was signed - that they cii^cutated the signature page for signing. At this point, you have everything that they have provided me. James N. Clymer, Esq. Clymer, Musser, Brvwm & Cvnrad, PC 408 West Chestnut St. Lancaster, PA 17603 (727) 299-7101 (Voice) (717) 299-5115 (Fax) jimc i cmbclaw.com 6/22/2011 h" 1 ~ I From: Paige Macdonald-Matthes [mail6D:PMaodonald-MatdiesOssbc-law.com] Sant: Wednesday, June 22, 2011 1:12 PM To: lames N. Clymer Subjed: RE: ]airam- Mater Jim: You emailed me a biack line version of the Joint Venture agreement. While the last page of the document is signed, it does not appear to be part of the black-line document but yet has the same date on the drive path. Can you please explain? Paige Macdonald-Matthes, Esquire Serratelli, Schiffman & Brown, P.C. 2080 Linglestown Road Harrisburg, PA 17110 (717) 540-9170 pmacdonald-matthes@ssbc-law.com From: 7anes N. Clyrner [mailGn:jim@cm6daw.aom1 Sent: Wednesday, lune 22, 2011 12:36 PM To: Paige Macdonald-Matthes 5ubiect: ]airam- Mater My mistake. I apparently accidentally attached the wrong pdf file from our system. The signed version is attached. I James N. Clymer, Esq. ~ Glymer, Musser, Brown & Conrud, PC . 408 West Chestnut St. ; Lancaster, PA 17603 (717) 299-7141 (Voice) (717) 299-5115 (Fax) jim@cmbcl.aw.com 6/22/2011 ~ - - _ _ . ~ , ~ . James N. Clymer, Esquire Attomey ID 27151 Clytner, Musser, Brown & Conrad, P.C. 408 W. Chestnut St. Lancaster, PA 17603 (717) 299-7101 Attorney for Plaintiff 1AIRAM 7, INC. . IN THE COURT OF : COMMON PLEAS viii. . CUMBERLAND COUNTY, . PENNSYLVANIA HNS MANAGEMENT, LLC t/a . DOCKET NO.: 7~~ N• I COUNTRY OVEN RESTAURANT f/k/a SAHAR MATER ENTERPRISES . CARLISLE, LLC t/a MATER . CIVIL ACTION - AT LAW ~ RESTAURANT MANAGEMENT AND . ~ COUNTRY OVEN RESTAURANT . ~ . IN CONFESSION OF . JUDGMENT FOR POSESSION ' OF REAL PROPERTY ~ COMPLAINT IN CONFESSjnN OF JUDGMENT Plaintiff, Jairam 7, Inc., by and through its attorneys, CLYMER, MtJSSER, BROWN & CONRAD, P.C., hereby files this Complaint in Confession of Judgment and, in support thereof, avers as follows: 1. Plaintiff is Jairam 7, Inc., is a Pennsylvania business corporation with its offices located at 1245 Harrisburg Pike, Carlisle, Cumberland County, Pennsylvania 17013-1621. 2. Defendant, HNS Management LLC t/a Country Oven Restaurant is a Pennsylvania limited liability company having a registered place of business located at 1245 Hazrisburg Pike, Carlisle, Cumberland County, Pennsylvania 17013. HNS was formerly known as Sahar Mater Enterprises Cazlisle, LLC and was a Pennsylvania limited liability company that traded and did business as both Mater Restaurant Management and the Country Oven Restaurant prior to the official name change with the Pennsylvania Department of State on or about March 11, 2008. . . ~M 3. Plaintiff and Defendants entered into a Joint Venture Agreement, (hereinafter "Agreement"). A true and correct copy of said Joint Venture Agreement is attached hereto as Exhibit "A" and incorporated by reference. 4. The commercial property at issue herein is located and known as the restaurant and banquet facilities located at 1245 Cazlisle Pike, Carlisle, Pennsylvania utilized by the Defendants at the property. 5. Plaintiff avers that this judgment is not being entered by confession ' against a natural person in connection with a consumer credit transaction or against a natural person in connection with a residential lease. ~ 6. Plaintiff is not aware of any assigntnent of the Joint Venture Agreement. 7. Plaintiff avers that judgment has not been previously entered on the Joint Venture Agreement in any jurisdiction. 8. Judgment may be entered as a result of Defendants' default of the terms and conditions of the Joint Venture Agreement. Specifically, Defendants have failed and refused to pay the agreed upon joint venture distribution within the terms as shown by the ~ Default Notice Letter dated December 31, 2011, a true and correct copy of which is attached hereto and marked Eahibit "Band further, by letter addressed to Defendant dated January 17, 2011, shows the balances due as of January 2011, a true and correct copy of which is attached hereto and marked Eahibit "C". 9. Plaintiff requests and demands that a judgrnent in ejectment be entered in ~ Plaintiff s favor and against Defendants. WHEREFORE, Plaintiff, Jairam 7, Inc., hereby requests that this Honorable Court enter judgment in ejectment by confession in favor of Plaintiff and against Defendants, HNS Mana,gement LLC t/a Country Oven Restaurant f/k/a Sahar Mater Enterprises Carlisle, LLC t/a Mater Restaurant Management and Country Oven Restaurant. Respectfully Submitted, CLYMER, MUSSER, BROWN & ONRAD, P.C. ~ JJ8iri6S ~ Attorney 1 408 W. Chestnut St. Lancaster, Pennsylvania 17603 (717) 299-7101 Attorneys for Plaintiff , James N. Clymer, Esquire Attorney ID 27151 Clymer, Musser, Brown & Conrad, P.C. 408 W. Chestnut St. Lancaster, PA ] 7603 (717) 299-7101 Attorney for Plaintiff JAIRAM 7, INC. : IN THE COURT OF . COMMON PLEAS V. . CUMBERLAND COUNTY, . PENNSYLVANIA HNS MANAGEMENT, LLC da : DOCKET NO.: ll- yqi!o 6vl ~1-7&-{M COUNTRY OVEN RESTAURANT f/k/a : SAHAR MATER ENTERPRISES , CARLISLE, LLC t/a MATER . CNIL ACTION - AT LAW RESTAURANT MANAGEMENT AND . COUNTRY OVEN RESTAURANT . . IN CONFESSION OF • JUDGMENT FOR POSESSION . OF REAL PROPERTY N01'ICE OF JiJDGMENT AND M l'IDN RE&UMD BY ME 2973.2 NOTICE OF DEFENDANTS' RIGHTS TO: HNS MANAC:EMENT, LLC di COUNTRY OVEN RESTAZTRANT f/Ic/a SAHAR MATER ENTTMRISES CARLI3LE, LLC t/a MATER RESTAURANT MANAGEACNT AND COUNTRY OVEN RF,3TAURANT 1245 Hazrisburg Pike Carlisle, PA 17013 A Judgment for possession of real property has been entered against you and in favor of the Plaintiff without any prior notice or hearing based on a Confession of Judgment contained in a written agreement or other paper allegedly signed by you. The Sheriff may remove you from the property at any time after thirty (30) days after the date on which this noticc is served on you. Yau may have legal rights to defeat the judgment or to prevent your money or property from being taken. YOU MUST FILE A PETITION SEEKING RELIEF FROM THE JUDGMENT AND PRESENT IT TO A JtJDGE WITHIN THIRTY (30) DAYS AFTER THE DATE ON WHICH THIS NOTICE IS SERVED ON YOU OR YOU MAY LOSE YOUR RIGHTS. YOU SHOULD TAKE THIS PAPER TO YOtJR LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER OR CANNOT AFFORD ONE, TELEPHONE THE OFFICE SET FORTH BELOW TO FIND OUT WHERE YOU CAN GET LEGAL HELP. LAYWER REFERAL SERVICE CUMBERLAND BAR ASSOCIATION 32 South Bedford Street Cazlisle, PA 17013 Telephone: (717) 249-3166 or (800) 990-9108 ~~/7 ~f AFFIDAVIT OF SAHAR MATER 1. My name is Sahar Mater. I am an adult individual with a residence address of 6121 Blue Ride Avenue, Harrisburg, Pennsylvania 17112. 2. I am a member of HNS Management, LLC and was formerly a member of Sahar Mater Enterprises Carlisle, LLC. 3. As was averred in the Complaint that HNS Management filed against Respondent on June 23, 2011 at Cumberland County Docket No. 11-524, in Apri12004, Respondent and Mater Restaurant Management entered into a Joint Venture Agreement whereby a Joint Venture known as "BWCO Joint Venture" was formed (hereinafter "BWCO Joint Venture Agreement"). 4. At all times relevant, the only members and authorized agents of Mater Restaurant Management and HNS Management have been me and my husband, Ali Mater. I' 5. I have reviewed Exhibit "B" attached to Respondent's Second Complaint in Confession of Judgment and confirm that I have never seen said document before. 6. The signature that appears on Respondent's Exhibit "B" beneath the heading "Restaurateur" is neither my signature nor my husband's signature. 7. Regarding the handwritten changes that appear on Respondent's Exhibit "B" attached to its Second Complaint in Confession of Judgment, I do not recognize the handwriting but can confirm that it is neither my handwriting nor my husband's handwriting. 8. Beginning in September 2009, I advised Respondent's agent, "Jitu Parikh," that all future Joint Venture payments due under the BWCO Joint Venture Agreement 1 i + would be paid into escrow unless and until Respondent made substantial repairs and/or improvements to the facilities, and further improved the sanitary conditions of the premises otherwise I would report the matter to the Department of Health and move to dissolve the Joint Venture. 9. Based on Respondent's assurances of immediate performance, I agreed to release the sum of $6,400.00, which represented the Joint Venture Payment due for September 2009. When no immediate performance occurred, (despite Respondent's representations and assurances) I again notified Jeetal that I was escrowing the Joint Venture Payment. This practice of escrowed payments and empty promises of immediate performance occurred through September 2010. 10. In October 2010, I again began to escrow Joint Venture payments due to Respondents' material breach of the Joint Venture Agreement and notice of my decision was orally provided to Respondent's agent, "Jitu", as well as orally to Respondent's counsel, James Clymer, Esquire. 11. All Joint Venture Payments were made in 2010, contrary the claims raised in Exhibits "E" and "F" attached to Respondent's verified Second Complaint in Confession of Judgment, as evidenced by the copies of cancelled checks that aze attached to my November 15, 2011, Petition to Strike/Open as Exhibit "H". 12. Joint Venture Payments were also made in January 2011 and February 2011 (in fact, two (2) payments were inadvertently made in February 2011) (contrary to Exhibits "E" and "F" attached to Respondent's verified Second Complaint in Confession of Judgment such that Respondent actually received Joint Venture payments through March 2011), as evidenced by the copies of the cancelled 2 S ~ checks that are attached to my November 15, 2011, Petition to Strike/Open as Exhibit "H". 13. On January 3, 2011, I wrote to Respondent's counsel, James Clymer, Esquire and again explained my reasons for escrowing the Joint Venture payments, and further requested immediate action on Respondent's part to correct the situation. As no corrective action has been taken by Respondent since February 2011, all Joint Venture Payments continue to be escrowed per my January 3, 2011 letter, 14. On or about January 4, 2011, I advised Respondent's counsel, James Clymer, Esquire, that all correspondence and notices pertaining to the BWCO Joint Venture should be mailed to my address located at 6121 Blue Ridge Avenue, Harrisburg, PA 17112. The reason I made this request is that the address that was being used "1245 Harrisburg Pike, Carlisle, PA 17013" is the Respondent's hotel address and I was not timely receiving my mail at that address because ~ Respondent and/or Respondent's agents failed to give me my mail. 15. Based on Respondent's fraud, material breach of the BWCO Joint Venture Agreement and tortuous interference with prospective contractual relations, HNS Management authorized the filing of a Complaint against Respondent on June 23, 2011, as previously mentioned herein above. 16. I was unaware that Respondent had filed its First Complaint in Confession of Judgment requesting ejectment on August 16, 2011, as neither I nor any other member of HNS Management was served with notice of the same. Moreover, notwithstanding the fact that Respondent's counsel, James Clymer, Esquire was 3 awaze that the LLC was represented by legal counsel, no notice of the filing of the Complaint in Confession of Judgment was provided to our legal counsel. 17. I never received a letter from the Cumberland County Prothonotary's Office I regarding the Respondent's First Complaint in Confession of Judgment that was apparently filed on August 16, 2011. I believe that this may be because the certification of last known address is 1245 Harrisburg Pike, Carlisle, PA 17013. 18. I never received notification that a certified letter had been mailed to HNS Management by Respondent's legal counsel, James Clymer, Esquire. I believe that this may be because the certification of last known address is 1245 Harrisburg Pike, Cazlisle, PA 17013. 19. On Friday, August 26, 2011, I was notified for the first time that a Complaint in Confession of Judgment had been filed by Respondent. 20. During the afternoon of Friday, August 26, 2011, an envelope from Respondent's counsel's office mysteriously appeared on the counter of my restaurant located at the hotel. I was notified of the arrival of this envelope by Robbie James, who is my manager at the restaurant. 21. Ali Mater picked up the envelope on August 26, 2011 at approximately 6:30p.m. Enclosed in the envelope was a copy of Respondent's Complaint. This was the first time that I saw Respondent's Complaint in Confession of Judgment. 22. I am aware that the Court entered an Order striking Respondent's First Confessed Judgment on September 26, 2011. 23. On or about September 23, 2011, I spoke with Respondent's agent and authorized representative, "Jitu" who advised me that he had no knowledge of the fact that 4 James Clymer, Esquire had filed a Complaint in Confession of Judgment against my business and further advised me that he had not authorized Mr. Clymer, nor any one else in his law office to take such legal action against my company. ~ Moreover, Jitu assured me that he never advised Mr. Clymer that Joint Venture Payments had not been paid in 2010, or that Joint Venture payments had not been received in January 2011 or February 2011, as stated in both Respondent's First COJ and Second COJ. I, Sahaz Mater, Member of HNS Management, LLC have read the forgoing document and verify that the facts set forth therein are true and correct to the best of my knowledge, information and belief. I understand that any false statements made herein are subject to the penalties of 18 Pa. C.S.A. § 4904, relating to unsworn falsification to authorities. I ~ '~---e.~.._.... . Sahar Mater STATE OF PENNSYLVANIA : : SS: COUNTY OF DAUPHIN . On this, the eday of November 2011, before me, the undersigned officer, personally appeared Sahaz Mater known to me (or satisfactorily proven) to be the person whose name is subscribed to the within instrument, and acknowledged that she executed the same for the purposes therein contained. IN WITNESS WHEREOF, I hereunto set my hand and official sea1. NOTARIAL SEAL • TAMMY E OIPPERY Notary Public N Pub1iC SUSUUEHANAA TWP, DAUPHIN COUNTY My Commission Expires Aug 6, 2012 5 ; 2115 ; SAHAR IIIATER ENTERPRISES CARLISLE LLC 1246 HARRISBURO PIKE ~ i CAFB.ISLE.PA 17103 L ~ 80-295313 DATE PAY QnoEn OF C7 E I 8 ~ LUL"AFRtS MMCB FOR AP n'OQ 21 i Su' ~ ^ I I o ~ tC ~ yy :,)n1nc_ c+rrL"% aa~vp . - - ~ To V ~p n ~ + 9 `Z I ~ Posting Date 2010 Feb 04 Research Seq # 8104409322 Account # _ Check/Store # 2115 DB/CR DB Dollar Amount $6,400.00 Bank # 096 Branch # 06129 Deposit Acct # 0 Record Type # 01 / • ~ 2119 ~ SAHAR MATER ENTERPRISES CARLISIE LLC i ia+s wwwsauRC CAHLISLE, PA 17103 / DATE ~ - ~ ~ "2 (Q 60-295313 PAY i' O~RDE~A OF U+x~ vl ~ C 1K?' 0~ ~ ~ i GOLLARS ~ank n.u..~r.1.vn.... 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B= oerra.. i FOR ~ MDOO 2 2 38U, - - I ~ t~t) ?4 _ 7aP.~t i_: 1 :•i i? 13~~?_ FNIT PA ~ ~ I ~ Posting Date 2010 Nov 09 Research Seq # 8103897972 Account # - Check/Store # 2238 DB/CR DB Dollar Amount $6,400.00 Bank # 096 Branch # 06129 Deposit Acct # 0 Record Type # 01 , . 224 SAHAR•MATER ENTERPRISES CARWSLE LLC 1245 HARRISBUR(3 PIKE ' CARUSLE, PA 17103 l (y DATE 2,0 60-285-313 i Tp THE t 1 K PAY tSJ~ -[OC~ i ORDFR OF s i ii U DOLLARB MB&DaiIA i r.....r+.r.vo.... ' o.rr.sor _ FOR ~ I u•00 2 24 Le' ~ .j , a- 7964_ - _0: ~;(430e FMTFA , i s ~ ~ Posting Date 2010 Nov 09 Research Seq # 8103897973 Account # Check/Store # 2241 DB/CR DB Dollar Amount $6,400.00 Bank # 096 Branch # 06129 Deposit Acct # 0 Record Type # 01 . . - ` 23000 - ~ surAn w?TER EffrERINSEs c+?RcISLE «c ~LMF.P?,r«3 , PAY TOTMor~",~' ~ 1 kC- r- E $ 6.'IOD &0,4r h L--,t,,.a .Al la,-s w+s mmdrAunk ; d......,~ FWt_QP 2 d 1!1 ~00 2 300w ; _ ~ ~ • ' • 28I)0000004377 - 0M71 ~P03a301306c FMT RA . ~ ' ~ i ~ Posting Date 2011 Mar 25 Research Saq # 8000522926 Account # . Check/Store # 2300 DB/CR DB Dollar Amount $6,400.00 Bank # 096 Branch # 06129 Deposit Acct # 0 Record Type # 01 ~ , a r 2278 . SANAR MATER ENTERpRISES CARL.IBLE LLC . • 1815l11iflRISB1lR13 POM ` CAHI.l6LE, PA 17103 DJ11E , ~ ! d fQ ~9 ~PpAY~ i - oo1.WM Bank 16 FOp l, ~P C t 21 2 t O ti) wp0 2 2 98e ' - - a ~ QU•''lMl10MOOS'i/3 . tL181-t ~031304306C WPII ~ ~ ~ . Posting Date 2011 Apr 28 Research Seq # 8102210793 Account # - - Check/Store # 2278 ' DB/CR DB Dollar Amount $6,400.00 Bank # 096 Branch # 06129 Deposit Acct # 0 Record Type # 01 . i • ,r 2279 3ANAR MATEq ENTERPRISES CARtISLE LLC . IMMwwssuMMM ~ cAFUSI.C PA rnao o 1 r 804m"' , s. s CQ?~o~ : /o01sAM uI W-- , Bmk1 il • Or~11pi~ ~ _v_Iwf~?-~ n \ ` / • ~ w 1 1 r0022790 R i 1'11~7v~r I • 024 -?,~0006000aA63 -06lfi11. >113130~OB< Fklx Pp. • ' ll 9 . ! Posting Date 2011 May 16 ' Research Seq # 8107653646 Account # Check/Store # 2279 DB/CR DB Dollar Amount $6,400.00 Banlc # 096 Branch # 06129 Deposit Acct # 0 Record Type # 01 ~ 2280 SAMAR MATER @f TERPRlSES CARUSLE LLC ,z~sa~n~eunoo~e c+Ma~stE.~? t7roo ~ PKV . M00 2 B80M - - F,ri' ?A 1 Posting Date 2011 Mar 02 Research Seq # 8102149817 Account # Check/Store # 2280 DB/CR DB Dollar Amount $6,400.00 Bank # 096 Brsnch # 06129 Deposit Acct # 0 Record Type # 01 , M ~ - - - - - - - - . - - - - - • - - - 2291 • SANAR NIITER ENTERPRISES CAt~ISLE LLC ~ ~e r~o Pnce ~ cMuW, ~ moo MTE ' PAY • ~a o~ ~t~.1~ t~~+m ~ i n r ' ~ ~G °i ~ 6 ~ ,o. rak It r00 2 Vro~ i i . ~ 21- 9T216- fj3!}4• 5 • ii31304.cc- rPATPk . ~ I i Posting Date 2011 Mar 04 Research Seq # 8102919681 Account # Check/Store # 2291 DB/CR DB Dollar Amount $6,40(}.00 Bank # 096 Branch # 06129 Deposit Acct # 0 Record Type # 01 SHERIFF'S OFFICE OF CUMBERLAND COUNTY Ronny R Anderson Sheriff Jody S Smith Chief Deputy ott,ts ofuatiGrtii' FILED-OFFICE THE ! HE P?OTHONOT,AIRy 2011 NOY 18 AM 10: 56 Richard W Stewart Solicitor OFF 'IF F `-E ??k1FF CUMBERLAND COUNTY PENNSYLVANIA Jairam 7, Inc. vs. HNS Management, LLC Case Number 2011-8416 SHERIFF'S RETURN OF SERVICE 11/10/2011 03:10 PM - Timothy Black, Deputy Sheriff, who being duly sworn according to law, states that on November 10, 2011 at 1510 hours, he served a true copy of the within Notice of Judgment and Execution Required by Rule 2973.2, Confession of Judgment in Ejectment, Plaintiffs Affidavit and Complaint in Confession of Judgment for Ejectment, upon the within named defendant, to wit: HNS Management, LLC, by making known unto Fatima Serhane, adult in charge for HNS Management, LLC at 1245 Harrisburg Pike, Carlisle, Cumberland County, Pennsylvania 17013 its contents and at the same time handing to her personally the said true and correct copy of the same. SHERIFF COST: $34.00 November 15, 2011 *gee_'_ TIM K, DEPUTY SO ANSWERS, .Z exo, 2X RON R ANDERSON, SHERIFF !c; GountySuite Sheriff, I elecsoft Inc SMIGEL, ANDERSON & SACKS, LLP River Chase Office Center, 3`d Floor Peter M. Good, Esquire 4431 North Front Street z 12 1'! Y $ 6 N 2: pgood@sasllp.com Harrisburg, PA 17110 Jessica E. Mercy, Esquire (717) 234-2401 '? SE! I s ! ° + r jmercy@sasllp.com ?i ? P? D CO (1 IN . M$ Ylr Nl -4 Attorneys for Defendant JAIRAM 7, INC. IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff/Respondent V. DOCKET NO. 11-8416 HNS MANAGEMENT, LLC T/A CIVIL ACTION - AT LAW COUNTRY OVEN RESTAURANT F/K/A SAHAR MATER ENTERPRISES IN CONFESSION OF JUDGMENT FOR CARLISLE, LLC T/A MATER POSSESSION OF REAL PROPERTY RESTAURANT MANAGEMENT AND COUNTRY OVEN RESTAURANT Defendant/Petitioner PRAECIPE TO ENTER APPEARANCE Please enter our appearance on behalf of the Plaintiff, Jairam 7, Inc. Date: May V-, 2012 SMIGEL, ANDER ON & SACKS By: Peter M. od, squire ID #64316 Jessica E. Mercy, Esquire ID #206405 River Chase Office Center, 3`d Floor 4431 North Front Street Harrisburg, PA 17110 (717) 234-2401 CERTIFICATE OF SERVICE I hereby certify that on this -?4 day of May, 2012 a true and correct copy of the foregoing document was served upon counsel as addressed below by depositing the same in the U.S. Mail, first class, postage prepaid: Paige Macdonald-Matthes, Esquire Serratelli, Schiffinan, Brown & Calhoon, P.C. 2080 Linglestown Road Harrisburg, PA 17110 SMIGEL, ANDERSON & SACKS, LLP By: _ ?A Peter M. od, Esquire ID# 64316 Jessica E. Mercy, Esquire ID# 206405 River Chase Office Center, 3`d Flr. 4431 North Front Street Harrisburg, PA 17110 (717) 234-2401 Attorneys for Plaintiff SMIGEL, ANDERSON & SACKS, LLP { {% ?t4 t River Chase Office Center, 3`d Floor V Peter M. Good, Esquire 4431 North Front Street ?E1.'•.?#'' ?1'f u sr pgood@sasllp.com Harrisburg, PA 17110 Jessica E. Mercy, Esquire (717) 234-2401{r°Ltl nQ COU jmercy@sasllp.com P `N 1 Y ( VA. N ! A Attorneys for Defendant JAIRAM 7, INC. Plaintiff/Respondent V. HNS MANAGEMENT, LLC T/A COUNTRY OVEN RESTAURANT F/K/A SAHAR MATER ENTERPRISES CARLISLE, LLC T/A MATER RESTAURANT MANAGEMENT AND COUNTRY OVEN RESTAURANT Defendant/Petitioner IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA DOCKET NO. 11-8416 CIVIL ACTION - AT LAW IN CONFESSION OF JUDGMENT FOR POSSESSION OF REAL PROPERTY PRAECIPE TO DISCONTINUE/DISMISS TO THE PROTHONOTARY: Please mark this action settled, dismissed, and discontinued with prejudice. Date: May W '2012 SMIGEL, ANDERSON & SACKS By: Peter M. o d, Esquire ID #64316 Jessica E. Mercy, Esquire ID #206405 River Chase Office Center, 3`d Floor 4431 North Front Street Harrisburg, PA 17110 (717) 234-2401 CERTIFICATE OF SERVICE I hereby certify that on this _?r day of May, 2012 a true and correct copy of the foregoing document was served upon counsel as addressed below by depositing the same in the U.S. Mail, first class, postage prepaid: Paige Macdonald-Matthes, Esquire Serratelli, Schiffman, Brown & Calhoon, P.C. 2080 Linglestown Road Harrisburg, PA 17110 SMIGEL, AND SON & SACKS, LLP By: Peter M. Good, Esquire ID# 64316 Jessica E. Mercy, Esquire ID# 206405 River Chase Office Center, 3`d Flr. 4431 North Front Street Harrisburg, PA 17110 (717) 234-2401 Attorneys for Plaintiff