The URL can be used to link to this page

Home My WebLink About07-0173U..' , _, Johnson, Duffie, Stewart & Weidner By: David W. DeLuce I.D. No. 41687 Elizabeth D. Snover I.D. No. 200997 301 Market Street P. O. Box 109 Lemoyne, Pennsylvania 17043-0109 (717) 761-4540 RON MOYER SERVICE CENTER, INC., Plaintiff V. M.L. COLLARE, INC, Defendant Attorneys for Plaintiff IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 67_ /23 & fFfA CIVIL ACTION - LAW CONFESSION OF JUDGMENT FOR MONEY DAMAGES Pursuant to the authority contained in the warrant of attorney contained in paragraph ten (10) of the written lease agreement, a true and correct copy of which is attached as Exhibit "B" " to the Complaint filed in this action, I appear for the Defendant and confess judgment in favor of the Plaintiff and against the Defendant as follows: Unpaid Rent Balance $ 7.700.00 Interest $ 1,172.73 Late Charges $ 1.430.00 (Security Deposit Balance) ($ 2 252.29 Attorneys' Fees (10% of Claim ¶ 10 of Lease) $ 805.40 TOTAL: $_8 855.84 JOHNSON, DUFFIIE,STEWART & WEIDNER BY: ?A'?Ajft? AV- 4? Eli zah D. Snover Davi . DeLuce Attorneys for Plaintiff Judgment entered as above, 20 Prothonotary RON MOYER SERVICE CENTER, INC., Plaintiff V. M.L. COLLARE, INC., Defendant CIVIL ACTION - LAW NOTICE UNDER RULE 2958.1 OF JUDGMENT AND EXECUTION THEREON TO: M.L. COLLARE c/o Mark E. Collare, President A judgment in the amount of Eight Thousand Eight Hundred Fifty-Five Dollars and eighty-four cents ($ 8,855.84) 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 the written lease agreement at paragraph ten (10) allegedly signed by you. The sheriff may take your money or other property to pay the judgment at any time after thirty (30) days after the date on which this notice is served on you. You may have legal rights to defeat the judgment or to prevent your money or property from being taken. YOU MUST FILE A PETITION SEEKING RELIEF FROM THE JUDGMENT AND PRESENT IT TO A JUDGE WITHIN THIRTY (30) DAYS AFTER THE DATE ON WHICH THIS NOTICE IS SERVED ON YOU OR YOU MAY LOSE YOUR RIGHTS. YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER OR CANNOT AFFORD ONE, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW TO FIND OUT WHERE YOU CAN GET LEGAL HELP. Cumberland County Bar Association 2 Liberty Avenue Carlisle, PA 17013 (717) 249-3166 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. JOHNSON, DUFFIE, STEWART & WEIDNER BY: David . DeLuce Elizabeth D. Snover 301 Market Street Lemoyne, PA 17043-0109 Attorneys for Plaintiff ti 4. Johnson, Duffie, Stewart & Weidner By: David W. DeLuce I.D. No. 41687 Elizabeth D. Snover I.D. No. 200997 301 Market Street P. O. Box 109 Lemoyne, Pennsylvania 17043-0109 (717) 761-4540 RON MOYER SERVICE CENTER, INC., Plaintiff V. M.L. COLLARE, INC., Defendant Attorneys for Plaintiff IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW COMPLAINT PURSUANT TO Pa.R.C P 2951(b) FOR CONFESSION OF JUDGMENT FOR MONEY DAMAGES The present action is brought pursuant to Rule 2950 et. seq., of the Pennsylvania Rules of Civil Procedure, whereby the Plaintiff, Ron Moyer Service Center, Inc., confesses judgment against Defendant, M.L. Collare, Inc., for money damages, on the basis of a Lease executed between the parties on June 3, 2004 and a Lease Addendum executed on October 21, 2005 for the property located at 1 Commercial Drive Camp Hill, Cumberland County, Pennsylvania, 17011, whereof the following is a statement: 1. The Plaintiff, Ron Moyer Service Center, Inc, ( "Landlord") is a Pennsylvania corporation having an office at 1719 Locust Street, New Cumberland, Cumberland County, Pennsylvania 17070. 2. The Defendant M.L. Collare, Inc., (`Tenant") is a Pennsylvania professional corporation having an office at 6793 Moul Road, Thomasville, Pennsylvania 17364. A Certificate of Address is attached herewith as Exhibit A. t 3. This action arises out of a lease that was entered into between Landlord and Tenant on June 3, 2004 for the property located at 1 Commercial Drive, Camp Hill, Cumberland County, Pennsylvania 17110. ("2004 Lease") A true and correct copy of the 2004 Lease is attached and incorporated herein as Exhibit "B". 4. The 2004 Lease provides that M.L. Collare ("Tenant") was obligated to pay an annual base in the two years of the lease (from June 1, 2004 through June 6, 2006) of Nineteen Thousand Eight Hundred Dollars ($19,800.00) in equal monthly installments of One Thousand Six Hundred and Fifty Dollars ($1,650.00) paid in advance on or before the first day of each month. See, Exhibit B ¶ 3B. 5. The 2004 Lease further provided that for the third and fourth year of the lease term (June 1, 2006 through June 1, 2008) that the annual base rent would be Twenty One Thousand Six Hundred Dollars $21,600.00 paid in equal monthly installments of One Thousand Eight Hundred Dollars ($1,800.00). See Exhibit B ¶ 3B. 6. Besides the annual base rent, Tenant was obligated under the 2004 Lease to pay all utilities (including sewer) to the leased premises. See Exhibit B ¶ 3C(1). 7. Tenant was also obligated pursuant to the 2004 Lease to pay real estate taxes in excess of the county, town and school taxes for the leased premises. See Exhibit B ¶ 3C(3). 8. Tenant was further obligated pursuant to the 2004 Lease to pay a security deposit of Three Thousand Three Hundred Dollars ($3,300.00). See Exhibit B ¶ 3D. 9. Tenant was also obligated pursuant to the 2004 Lease to pay a late charge of ten percent (10%) on all monthly installments of rent or any other payments due to the Landlord not paid within ten (10) calendar days after its due date. See Exhibit B ¶ 3E. 10. Tenant was also obligated pursuant to the 2004 Lease to pay an additional charge of one and one-half percent (1.5%) on any monthly payments not paid by the twentieth (20th) calendar day of each month. See Exhibit B ¶ 3E. l 11. Furthermore, said additional charge of one-half percent (1.5%) shall be imposed as of the twentieth (20th) calendar day of each additional month that the monthly installment is not paid. See Exhibit B ¶ 3E. 12. Paragraph 4B required the Tenant to "at his sole cost and expense: maintain and repair the entire leased premises, both structural and non-structural and exterior and interior... promptly repair all damage to the leased premises caused by the Tenant, its employees, agents, customers, guests contractors or invitees. 13. Tenant agreed to a confession of Judgment for Money Damages with warrant of attorney granted to the Plaintiff at paragraph 10 of the 2004 Lease. See Exhibit B 110. 14. On or about September 2005, Mark Collare, President of M.L. Collare, Inc. met with Ronald and Georgianna Moyer, Officers of Ron Moyer Service Center, Inc. (Landlord) and proposed that the 2004 Lease be amended so that he would be absolved of monthly rental payments from October 2005 through March 2006 in exchanged for an increased rental payment of Two Thousand Two Hundred Dollars ($2,200.00) from April 2006 through September 2006. 15. The Lease Addendum was executed on October 21, 2005 and no where in its terms does it waive the obligation of Tenant to pay the July and August 2005 rental payments with applicable late charges. A true and correct copy of the 2005 Lease Addendum is attached and incorporated herein as Exhibit "B". 16. On or about September 2006, the 2004 Lease and Addendum were terminated by agreement of both Landlord and Tenant. 17. However, Tenant remains delinquent on payments to the Landlord in accordance with the terms of the 2004 Lease and 2005 Addendum for a total of Ten Thousand Three Hundred Two Dollars and seventy-three cents ($10,302.73) which can be itemized as follows: Missed Monthly Rental Installments per the 2004 Lease and 2005 Lease Addendum: July 2005 $1,650.00 August 2005 $1,650.00 August 2006 $2,200.00 September 2006 $2.200.00 TOTAL: $7,700.00 Late Charges 10% of payment per the 2004 Lease: July 2005 $165.00 August 2005 $ 165.00 May 2006 $ 220.00 June 2006 $ 220.00 July 2006 $ 220.00 August 2006 $ 220.00 September 2006 $ 220.00 TOTAL: $1,430.00 Interest as set forth in paragraph 3E of the 2004 Lease through January 8, 2007: July 2005 ($24.75/mo. for 17 months, 19 days) August 2005 ($24.75/mo. for 16 months, 19 days) June 2006 ($33.00/ mo. at $1.10/day for 16 days) July 2006 ($33.00/ mo. at $1.10/day for 28 days) Aug. 2006 ($33.00/ mo. for 4 months, 19 days) Sept. 2006 ($33.00/mo. for 3 months. 19 days) TOTAL: $ 436.14 (based on $1,650.00) $ 411.39(based on $1,650.00) $ 17.60 (based on $2,200.00) $ 30.80 (based on $2,200.00) $ 156.90 (based on $2,200.00) $ 119.90 (based on $2,200.00 $1,172.73 Missed Payments: $7,700.00 Late Charges: $1,430.00 Interest Charges: $1,172.73 TOTAL: $10,302.73 18. Furthermore, Tenant agreed in paragraph ten (10) of the 2004 Lease to a confession of attorneys' fees equal to ten percent (10%) of the full amount of Landlord's claim against the Tenant. 19. The Three Thousand Three Hundred Dollar ($3,300.00) security deposit has been allocated towards expenses as follows: Kreamer Glass $ 140.29 Susquehanna Valley Tree $ 750.00 Removal of paint from Restroom floor $ 69.50 Sewer bill - Lower Allen Twp. $ 87.92 Remaining balance in account: $2,252.29 20. According to the terms of the 2004 Lease, the security deposit can be used to offset delinquent rent and late charges. 21. Landlord claims an amount from Tenant of Eight Thousand Fifty Dollars and forty-four cents ($8,050.44) agreed at paragraph ten (10) of the lease that ten percent (10%) of the amount claimed by Landlord would be the confessed attorney's fees which total Eight Hundred Five Dollars and forty cents ($805.40). See, Exhibit B 110. 22. Therefore, Tenant is in default on the aforesaid 2004 Lease Agreement and 2005 Addendum to Lease and has failed to make the required payment of Eight Thousand Fifty Dollars and forty-four cents ($8,050.44). 23. Plaintiff has demanded the total amount due, but Tenant Defendant has refused and neglected and continues to refuse and neglect to pay the full amount owing to the Plaintiff under the terms of the 2004 Lease and 2005 Addendum of Lease Agreement. 24. This judgment is not being entered by confession against a natural person in connection with a consumer credit transaction. 25. Neither the 2004 Lease Agreement nor the 2005 Addendum signed by Lori L. Collare and Mark E. Collare respectively of M.L. Collare, Inc. have been assigned by the Plaintiff. 26. Judgment on the Lease Agreement has not been entered in any jurisdiction. WHEREFORE, Plaintiff demands judgment against Defendant in the amount of Eight Thousand Eight Hundred Fifty-Five Dollars and eighty-four cents ($ 8,855.84) which includes rent, late charges, interest, and attorneys fees pursuant to the lease. Respectfully submitted, JOHNSON, DUFFIE, STEWART & WEIDNER BY: S&?JA David W eLuce Attorney P.D. #41687 Elizabeth D. Snover Attorney I.D. # 200997 VERIFICATION I, Ronald L. Moyer, President of Ron Moyer Service Center, Inc., verify that I am authorized to make the statements herein and that the statements made in the foregoing Complaint are true and correct to the best of my knowledge, information and belief. I understand that false statements made herein are subject to the penalties of 18 Pa.C.S.A. §4904 relating to unsworn falsification to authorities. Ronald L. Moyer, Dated: 01- OS-07 /? ? ? ?T L? ? RON MOYER SERVICE CENTER, INC., IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff V. M.L. COLLARE, INC., Defendant NO. CIVIL ACTION - LAW CERTIFICATE OF ADDRESS I hereby certify that the following is the address of the Defendant: M.L. COLLARE, INC. c/o Mark E. Collare 6793 Moul Road Thomasville, Pennsylvania 17364 I hereby certify that the following is the address of the Plaintiff: Ron Moyer Service Center, Inc. 1719 Locust Street New Cumberland, PA 17070 ---- Z&?? - &Xvlol? Elizabeth. Sn er, Esquire Attorney for Plaintiff ?x?? d,f 13 COMMERCIAL LEASE THIS COMMERCIAL LEASE, made this da A;?,-2004, y by and between RON MOYER SERVICE CENTER, INC., a Pennsylvania corporation, having an office at 1719 Locust Street, New Cumberland, PA 17070, hereinafter referred to as "Landlord", and ML COLLARE, INC., a Pennsylvania corporation having an office at 5542 Bentz Road, Spring Grove, PA 17362, hereinafter called "Tenant." WITNESSETH WHEREAS, Landlord is the owner of an improved parcel of real estate situated in Lower Allen Township, Cumberland County, Pennsylvania, on which is located a one (1) story structure; and WHEREAS, Tenant desires to lease from Landlord and Landlord desires to let to Tenant, Landlord's property, upon the terms and conditions set forth below; and WHEREAS, Landlord and Tenant desire to confirm their understanding in writing. NOW, THEREFORE, for good and valuable consideration, receipt of which they acknowledge, the parties hereto, intending to be legally bound, have agreed as follows: 1. Leased Premises. The premises hereby demised (hereinafter called the "Leased Premises") is the property located at and known as 1 Commercial Drive, Camp Hill, Pennsylvania (the "Property") and the structure thereon (the "Building"). 2. Term. The term of this Lease ("Term") shall commence on June 1, 2004 ("Commencement Date"), and shall continue for a period of ten (10) years thereafter, expiring on May 31, 2014, unless sooner terminated as provided herein. 3. Rent; Additional Rent; Effective Date; Security Deposit; and Late Charge. A. Effective Date. Rent, which shall mean and include Additional Rent, shall be paid effective as of the Commencement Date. B. Annual Base Rent. A "lease year' shall be the period commencing on the Commencement Date and ending one (1) year thereafter during the Term. The annual base Rent payable by Tenant to Landlord for the Leased Premises during each lease year of the Term shall be as follows: Lease Year Annual Base Rent Monthly Installment 1 $19,800.00 $1,650.00 2* $19,800.00 $1,650.00 3 $21,600.00 $1,800.00 4 $21,600.00 $1,800.00 5 $23,400.00 $1,950.00 6 $23,400.00 $1,950.00 7 $23,400.00 $1,950.00 8 $23,400.00 $1,950.00 9 $23,400.00 $1,950.00 10 $23,400.00 $1,950.00 * Subject to adjustment. See section 3.C.(2) below. Tenant shall pay the annual base Rent in equal consecutive monthly installments as set forth above, in advance, on or before the first day of each month, commencing as of the Commencement Date. Each monthly installment of Rent shall be paid to Landlord or Landlord's duly authorized agent or representative. Tenant shall pay such annual base Rent, together with all Additional Rent (as hereinafter defined), without demand and without abatement, deduction or setoff. C. Additional Rent. In addition to the annual base Rent, as set forth above, Tenant shall also pay additional rent ("Additional Rent") as follows: (1) Utilities. Tenant shall pay for: (1) all electricity consumed in the Leased Premises, including but not limited to electricity for healing, cooling and refrigeration; (ii) all other heating and cooling of the premises; (iii) all water delivered to the Leased Premises; (iv) -2- all sanitary sewer services provided to the Leased Premises. Electricity, heating, cooling, water and sewer may hereafter be referred to as "Utilities." Tenant shall arrange to have all Utilities billed directly to Tenant, Tenant shall pay the same when due, and shall furnish Landlord with reasonable proof of such payments. If bills for any Utilities are sent to the Landlord, Tenant will pay the same within ten (10) days after receipt. (2) Additional Payment. If during the second lease year, Tenant's gross revenue from its business in the Leased Premises equals or exceeds $170,000.00, then on or before thirty (30) days after the end of the second lease year, Tenant will also pay to Landlord $1,800.00 as Additional Rent. (3) Real Estate Taxes. (a) As used in this Agreement: "Real Estate Taxes" shall mean all real estate taxes, assessments, special assessments and the like, payable in respect of the Property, the Building and the Leased Premises, imposed by any governmental body or authority; "Base Real Estate Taxes" shall mean the county and town real estate taxes imposed on the Leased Premises for the period from January 1, 2004 through December 31, 2004, and the school taxes imposed on the Leased Premises for the period from June 1, 2003 through June 30, 2004. The total amount of Base Real Estate Taxes is $3,060.84 (b) Commencing on January 1, 2005, Tenant shall pay to Landlord all Real Estate Taxes in excess of the Base Real Estate Taxes within ten (10) days after receipt of copies of bills for the same. D. Security Deposit. Tenant shall, upon the execution of this Lease, pay to Landlord a security deposit for Tenant's full and faithful performance of its obligations under this Lease in the amount of Three Thousand Three Hundred ($3,300.00) Dollars. The security deposit will be held by Landlord in a non-interest bearing account. If Tenant does not default with respect to any of Tenant's obligations under the terms and conditions of this Lease, Landlord shall refund said security deposit upon the expiration of the Term. Landlord may, but shall not be required, to use all or a portion of the security deposit to make any payment due from Tenant under this Lease or to cure any other default of Tenant. After each such application, Tenant will deposit with Landlord the -3- amount applied immediately after notice from the Landlord of the nature and amount of the application. Upon the expiration or sooner termination of the Lease, Landlord may use and apply the security deposit for payment of Rent or to pay for any damages caused to the Leased Premises in connection with Tenant' s use or occupancy of the Leased Premises or in connection with Tenant's removal of any Tenant's property from the Leased Premises If Landlord transfers its interest in the Lease, Landlord may do either of the following: (1) Return the security deposit to Tenant minus any deductions made under the terms herein and not replaced by Tenant; or (2) Transfer the deposit minus any deductions provided for herein and not replaced by Tenant, to Landlord's successor in interest. In the event that Landlord transfers all or any portion of the deposit under this Paragraph, on transfer Landlord will be relieved of all rights and obligations with regard to the deposit, and all of these rights and obligations will accrue to the transferee. Landlord must give Tenant notice of any such transfer, including the name and address of the transferee and the amount transferred. E. Late Charge. If any monthly installment of Rent, Additional Rent or any other payment due hereunder is not paid within ten (10) calendar days after its due date, a late charge shall be imposed of an additional ten (10%) percent on all sums so overdue. In the event that said monthly installment of Rent is not paid by the twentieth (20th) calendar day of said month then, in that event, an additional charge in the amount of one and one-half (1 1/2%) percent shall be imposed on the monthly installment not so paid and said additional charge (1 1/2%) shall be imposed as of the twentieth (20th) calendar day of each additional month that the monthly installment is not paid. The provision for such late charge shall not be construed to permit Tenant to make any payment after its due date, obligate Landlord to accept any overdue installment or payment or affect Landlord's rights and remedies for Tenant's defaults under this Lease. -4- F. Survival of Tenant's Obligation to Pay Rent. Tenant's obligation to pay annual base Rent due and payable under the terms of this Lease shall survive the expiration or sooner termination of this Lease. 4. Systems. Maintenance and Repairs. A. Landlord warrants that the electrical, plumbing and heating systems in the Leased Premises will be in good working order on the Commencement Date Tenant will thereafter repair, replace and maintain the same in good working order at Tenant's sole cost and expense. Tenant acknowledges that Landlord is not providing any hot water or heater for the same and that Tenant shall be solely responsible for the same. B. Tenant shall, at its sole cost and expense: maintain and repair the entire Leased Premises, both structural and non-structural and exterior and interior, except as provided in the following sentence; keep all of the same and all adjoining sidewalks, driveways and curbs, clean, neat, free of vermin, ice, snow and debris; remove all trash from the Leased Premises; and shall promptly repair all damage to the Leased Premises caused or allowed by Tenant, its employees, agents, customers, guests, contractors, or invitees. Landlord shall be responsible for restoring structural damage to the Building, including its roof, which was not caused or allowed by Tenant (including but not limited to Tenant's failure to properly maintain the Building), or by its employees, agents, customers, guests, contractors, or invitees. 5. Alterations and Improvements. A. Definition. "Alterations" shall mean alterations, additions, substitutions, installations, changes and improvements concerning the Leased Premises. B. Alterations. Tenant is leasing the Leased Premises "as is". Tenant shall not make Alterations to the Leased Premises except for non-structural interior alterations to the Leased Premises that do not adversely affect the Building's appearance or structural strength without Landlord's prior written consent, which consent shall not be unreasonably withheld or delayed. To obtain Landlord's consent, Tenant shall provide Landlord reasonably detailed plans and specifications for Alterations. If Landlord shall reasonably require the advice of any other parry, concerning its -5- consent, including but not limited to engineers, environmental consultants or attorneys, Tenant shall pay Landlord's actual costs of the same. Tenant shall have the right to select the contractors for such Alterations and improvements, subject to Landlord's approval, which approval shall not be unreasonably withheld or delayed. Landlord shall have the right to obtain assurances from Tenant that said Alterations shall be completed and performed in a good and workmanlike manner, and that no mechanics' lien or other lien shall be entered against the Leased Premises. C. Payment and Ownership of the Alterations. Alterations and improvements made by Tenant shall be at Tenant's sole cost and expense. The Alterations shall belong to Landlord upon the expiration or termination of this Lease except that Landlord shall have the right, at Landlord's option, to require Tenant to remove any such Alteration at Tenant's expense and Tenant shall be required to repair any damage to the Leased Premises caused by the removal of said Alterations. Notwithstanding the foregoing, Tenant may remove its trade fixtures, furniture, equipment and all personal property if Tenant promptly repairs any damage to the Leased Premises caused by removal of said items. 6. Rules and Regulations. The Rules and Regulations attached hereto as Exhibit A and additional reasonable Rules and Regulations as may from time to time be promulgated by Landlord are incorporated into and made part of this Lease. 7. Tenant's Right to Assign and Sublet. Tenant shall not assign or sublet or permit the Leased Premises, or any part thereof, to be used by others without the prior written consent of Landlord in each instance. If this Lease is assigned, or the Leased Premises or any part thereof is occupied by anyone other than Tenant, Landlord may, after default by Tenant, collect rent from the assignee, subtenant or occupant and apply the net amount collected to the Rent herein reserved. No assignment, subletting, occupancy or collection of Rent by Landlord from any assignee, subtenant or occupant shall be deemed a waiver of this covenant or the acceptance of the assignee, subtenant or occupant as Tenant or a release of Tenant from further performance by Tenant of the covenants of this Lease. The consent by Landlord to an assignment or subletting shall not be construed to relieve Tenant from obtaining a consent in writing from Landlord to any further assignment or subletting. Tenant acknowledges that Landlord may withhold the required consent in connection with any proposed assignment or sublet in Landlord's discretion. -6- Any transfer, including but not limited to any transfer by operation of law, merger or consolidation, of any interest in Tenant, to any person or entity other than the Guarantors (as hereafter defined), shall constitute an assignment of this Lease requiring Landlord's consent. 8. Use of Leased Premises. Tenant shall use the Leased Premises solely for the preparation and sale of Italian ices and related products together with related administrative activities. Tenant shall not use the Leased Premises for any other purposes without the prior written consent of Landlord. Tenant shall not use or occupy the Leased Premises for any activity which shall result in an increase of insurance premiums payable in connection with the Building. In the event that Tenant shall undertake any activity within the Leased Premises or in the parking area which shall result in an increase in the premium for the fire and casualty insurance or public liability insurance, or both, then Tenant shall be required to pay the cost of any such increase. Tenant's use of the Leased Premises, including but not limited to its lighting, signs, and the noise and parking of its customers, will not constitute a nuisance or actionable disturbance. Tenant's use and occupancy of the Leased Premises, and all alterations and improvements thereto, will at all times comply with all applicable laws, regulations, rules, orders, requirements and the like of all governmental authorities, and of the Landlord's insurers and mortgagees. 9. Default by TenanVLandlord's Remedies. If Tenant shall, regardless of the pendency of any bankruptcy, reorganization, receivership, insolvency or other legal or administrative proceedings which may prevent Tenant from complying with the terms of this Lease, allow any payment of Rent or any Additional Rent to be in arrears for more than ten (10) calendar days after written notice of such delinquency, or remain in default of any other covenant, agreement or obligations for a period of thirty (30) days after written notice from Landlord, or should any person other than Tenant secure possession of the Leased Premises, or any part thereof, except in accordance with the terms and provisions of this Lease, Landlord may, at its option, without notice to Tenant, terminate this Lease, or in the alternative, Landlord may reenter and take possession (without termination of this Lease) of the Leased Premises and remove all persons and property therefrom, without being deemed guilty of any manner of trespass, and relet the Leased Premises or any part thereof, for all or any part of the remainder of the Term, to a party satisfactory to Landlord, and at such monthly rental as Landlord may, with reasonable diligence, be able to secure. Should Landlord be unable to relet after reasonable efforts to do so, or should such rental be less than the of Rent and Additional Rent Tenant is obligated to pay under this Lease plus the expenses of reletting, then Tenant shall pay, monthly, the amount of -7- such deficiency to Landlord. Landlord specifically reserves the right to accelerate payment of all Rent and Additional Rent due and payable hereunder. It is expressly agreed that in the event of default by Tenant hereunder, Landlord shall have a lien on all goods, chattel or personal property of any description belonging to Tenant which are placed in, or become part of, the Leased Premises, as security for the Rent due and to become due for the remainder of the Term (to include renewal term), which lien shall not be in lieu of or in any way affect the statutory Landlord's lien given by law, but shall be cumulative thereto; and Tenant hereby grants to Landlord a security interest in all such personal property located in said Leased Premises for such purposes. In the event Landlord exercises the option to terminate the leasehold or reenter and relet the Leased Premises (without termination) as herein provided, then Landlord may take possession of all of Tenant's property on the Leased Premises and sell the same at public or private sale after giving Tenant reasonable notice of the time and place of any public sale or of the time after which any private sale is to be made, for cash or on credit, or for such price and terms as Landlord deems best, with or without having the property present at such sale. The proceeds of such sale shall be applied first to the necessary and proper expenses of removing, storing and selling such property, and then to the payment of any Rent or Additional Rent due or to become due under this Lease, with the balance, if any, paid to Tenant. 10. Confession of Judgment - Money. Tenant covenants and agrees that if the Rent or any charge reserved in this Lease as Rent shall remain unpaid for a period of ten (10) days after written notice by Landlord to Tenant then, in that event, Landlord may cause judgment to be entered against Tenant, and for that purpose, Tenant hereby authorizes and empowers Landlord or any prothonotary, clerk of court or attorney of any court of record to appear for and confess judgment against Tenant for money pursuant to the Pennsylvania Rules of Civil Procedure for all rents hereunder, including all accelerations of rent permissible under the provisions of this Lease, and for all charges, reserved hereunder, as well as for interest at the rate of twelve (12%) percent per annum and costs; together with attorneys' fees of ten (10%) percent of the full amount of Landlord's claim against Tenant. The authority to confess judgment herein shall not be exhausted by one or more exercises thereof, but successive actions may be commenced and judgment entered by confession or otherwise as often as necessary. -8- Tenant expressly understands and agrees to this Confession of Judgment - Money: Witness: ML COLLARE, INC. By: ,4 1 (&, Lori L. Collare, President 11. Confession of Judgment - Possession. Tenant hereby covenants and agrees that if this Lease shall be terminated as a result of Tenant's default, then, in that event, Landlord shall cause judgment in ejectment for possession of real estate by confession to be entered against Tenant of the possession of the Leased Premises, and for that purpose Tenant hereby authorizes and empowers Landlord or any prothonotary, clerk of courts or attorney of any court of record to appear for Tenant to confess judgment against Tenant in ejectment for possession of the Leased Premises. Further, Tenant covenants and agrees that Landlord may commence an action pursuant to the Pennsylvania Rules of Civil Procedure for the entry of an Order in ejectment for possession of real estate, and Tenant further agrees that a writ of possession pursuant thereto may issue forthwith, for which authorization to confess judgment and for the issuance of a writ or writs of possession pursuant thereto, this Lease or a true copy of this Lease, shall be sufficient warrant. Tenant further covenants and agrees that, if for any reason whatsoever, after said action shall have commenced, the action shall be terminated and possession of the Leased Premises shall remain in or be restored to Tenant, Landlord shall have the right upon subsequent default or defaults, or upon the termination of this Lease as above set forth, to commence a successive action or actions for possession of real estate and to cause the entry of successive judgments by confession in ejectment for the possession of the Leased Premises. Tenant expressly understands and agrees to this Confession of Judgment -Possession: Witness: ML COLLARE, INC. J By: Lon L. Collare, President 12. Cumulative Remedies. All rights and remedies of Landlord under this Lease shall be cumulative; none shall exclude any other right or remedy at law or equity. Such rights and remedies may be exercised and enforced concurrently and whenever and as often as the occasion therefor arises. -9- 13. Certificates. Tenant shall, without charge, at the request of Landlord, from time to time, execute certificates to any mortgagee, assignee or purchaser of Landlord: A. That this Lease is unmodified and in full force and effect or, if there have been modifications, that the same is in full force and effect as modified and stating the modification or modifications; B. The dates, if any, to which Rent, Additional Rent or other charges, if any, hereunder have been paid in advance; C. Whether Landlord is or is not, as the case may be, in default of the performance of any of the covenants or conditions on Landlord's part to be performed; D. Such other pertinent information with respect to this Lease as Landlord may reasonably request. 14. Quiet Enioyment. Upon Tenant paying all Rent and Additional Rent and timely performing all of its obligations under this Lease, Landlord covenants to allow Tenant to quietly and peacefully enjoy the possession of the Leased Premises free from interference or interruption of Landlord or any person claiming through or under Landlord. 15. Insurance. A. Tenant shall, at its sole cost and expense, procure and maintain during the Term, the following: (1) Public Liability Insurance. Policies of insurance insuring Landlord, Tenant and such mortgagees or other persons as Landlord shall specify against all claims for injury to persons or damage to property or for loss of life or property occurring upon, in, or about the Leased Premises for injury to or death to any person in the amount of not less than One Million ($1,000,000.00) Dollars, for injury to or death of more than one person in any one occurrence in -10- an amount not less than Two Million ($2,000,000.00) Dollars, and for damage to Property in an amount not less than One Million ($1,000,000.00) Dollars. (2) Workers' Compensation. Workers' compensation insurance as required by all applicable laws, and shall carry or cause to be carried, workers' compensation insurance covering all persons employed in connection with construction of any alterations or improvements by Tenant. (3) Contents. Fire and extended coverage, vandalism, malicious mischief and special extended coverage insurance in an amount adequate to cover the cost of replacement of all alterations, improvements, fixtures, equipment, furnishings, decorations and other property, of Tenant, in and on the Leased Premises. B. On or before the Commencement Date, and thereafter at least thirty (30) days prior to the expiration of all such policies of insurance, Tenant shall deliver to Landlord either a duplicate original of each such policy, or a certificate evidencing such insurance, provided each such certificate contains an endorsement that such insurance may not be cancelled or modified except upon thirty (30) days' prior written notice to Landlord, together with evidence of payment for the policy. C. Tenant's failure to provide and keep in force the insurance specified above shall be a material default and in this Lease, entitling Landlord to exercise any or all remedies provided in this Lease in the event of Tenant's default. 16. Destruction of Leased Premises - Partial. If the Leased Premises shall be partially damaged by fire or other cause which was not caused or allowed by Tenant or any of its employees, agents, customers, guests, contractors or invitees: A. and Tenant can reasonably carry on its business in substantially the same manner in which it had theretofore been ordinarily conducted, the damage thereto shall be repaired or restored promptly by Landlord, at no expense to Tenant (except as provided in Paragraph 4) and without reduction in Rent. B. and Tenant cannot carry on its business in substantially the same manner in which it had theretofore been ordinarily conducted, but the damage is not sufficient so as to cause Tenant to cease operation, the damage thereto shall be repaired or restored by Landlord within ninety (90) days -11- at no expense to Tenant (except as provided in Paragraph 11) and Tenant's obligation to pay Rent for such period of non-use shall be abated pro tanto to the same extent as the unusable portion of the Leased Premises. 17. Destruction of Leased Premises - Total. In the event of the total destruction of the Leased Premises, which was not caused or allowed by Tenant or any of its employees, agents, customers, guests, contractors or invitees, Landlord shall -have the option to rebuild and Rent shall abate until such time as the Leased Premises are available to Tenant in substantially the same condition as before destruction, as evidenced by notice thereof from Landlord to Tenant, at which time Rent shall again commence and the Term shall be deemed tolled for such rebuilding. In the event Landlord does not within ninety (90) days after the destruction commence to rebuild or repair, or does not within one hundred and eighty (180) days make available to Tenant the Leased Premises in such condition which will permit Tenant to reasonably carry on its business in substantially the same manner in which Tenant had theretofore been conducting its business, Tenant may terminate this Lease upon thirty (30) days' prior written notice to Landlord, unless the Leased Premises have been substantially restored prior to the expiration of those thirty days, and Tenant shall be released from any further obligations under this Lease. Notwithstanding the foregoing, if total destruction of the Leased Premises shall occur within one (1) year prior to the termination of the Term, Landlord shall not be required to rebuild or repair the Leased Premises, unless Landlord shall, in its sole and exclusive option, elects to do so. If Landlord shall elect not to rebuild or repair the Leased Premises, Landlord shall notify Tenant within ninety (90) days after the date of destruction, and in the event Tenant shall be released from paying any Rent and Additional Rent for balance of the Term. 18. Notice of Damage to Leased Premises. Immediately after any damage or destruction of all or any part of the Leased Premises, Tenant will give the Landlord written notice of the same. 19. Condemnation. If, during the Term all of the Leased Premises shall be taken for any public or quasi-public use under any governmental law, ordinance or regulation, or by right of eminent domain, or should be sold to the condemning authority under threat of condemnation, this Lease shall terminate and the Rent shall be abated during the unexpired portion of this Lease, effective as of the date of the actual taking of possession of said premises by the condemning authority, and Tenant shall be released from any further obligations under this Lease, provided, however, that Tenant reserves all rights which Tenant may have with respect to relocation or other supplemental or special damages against the condemning authority. If less than all of the Leased Premises shall be taken for any public or quasi-public use under any governmental law, -12- ordinance or regulation, or by right of eminent domain, or should be sold to the condemning authority under threat of condemnation, this Lease shall not terminate but Landlord may, at its sole expense, within ninety (90) days from the date of the actual taking of possession by the condemning authority, restore and reconstruct the Building or other improvements, provided that such restoration and reconstruction shall make the same reasonably tenantable and suitable for the uses for which the Leased Premises are leased. Rent payable hereunder during the unexpired portion of this Lease shall be adjusted equitably. Landlord and Tenant shall each be entitled to receive and retain such separate awards and portions of lump sum awards as may be allocated to the respective interest in any condemnation proceeding. The termination of this Lease shall not affect the rights of the respective parties to such awards. 20. Indemnity. Tenant shall indemnify and hold Landlord harmless against any and ail claims, demands, costs and expenses, including reasonable attorney's fees for the defense thereof, arising from the conduct or management of Tenant's business within the Leased Premises or from any breach on the part of Tenant or any of the conditions of this Lease, or from any or negligence of Tenant, Tenant's agents, contractors or employees in or about the Leased Premises. In case of any action or proceedings brought against Landlord by reason of any such claim, Tenant, on notice from Landlord, covenants to defend such action or proceedings with legal counsel reasonably satisfactory to Landlord. The foregoing indemnification provision shall not apply to negligence by Landlord, its agents, employees and contractor. The indemnification set forth in this Paragraph 20 shall be construed in its broadest form in favor of Landlord. 21. Landlord's Right of Entrv. Tenant shall permit Landlord and its agents to enter into and upon the Leased Premises at all reasonable times, with advance notice to Tenant except in emergency situations, for the purpose of inspecting the same, maintaining the Building, showing the Leased Premises to prospective mortgagees or purchasers, making repairs to any other portion of said Building, including the erection of scaffolding, props or other mechanical devices, or for the purpose of posting notice of non-liability for repairs, without any rebate of Rent to Tenant or damages for any loss of occupation of quiet enjoyment of the Leased Premises thereby occasioned; and shall permit Landlord, at any time within ninety (90) calendar days prior to the expiration of this Lease, to put upon the windows and doors of the Leased Premises any usual or ordinary "to let" or "to lease" signs. Landlord and its agents may, during said last mentioned period, at reasonable hours, enter upon the Leased Premises and exhibit the same to prospective tenants. Landlord shall employ reasonable care and shall not disturb Tenant's business. Tenant shall not interfere or tamper with and shall allow Landlord's contractors access to, all monitoring devises and wells on the Leased Premises. -13- 22. Signs. Tenant may, at Tenant' expense and subject to the approval of all applicable government authorities and Landlord, install one or more business signs, on the Leased Premises. Tenant shall submit to Landlord all proposed sign applications to governmental authorities for Landlord's approval which approval shall not be unreasonably held or delayed. Tenant shall, at its sole cost and expense, erect and maintain all such signs in compliance with all applicable laws, regulations and requirements; and, upon the expiration or termination of this Lease, promptly remove the same, and if Landlord so instructs, all pylons, brackets, frames, electrical wiring and the like, for the same. Throughout the Term, Tenant shall maintain insurance for the replacement of same. 23. No Waiver. The waiver by Landlord of any breach of any term, covenant or condition herein contained shall not be deemed to be a waiver of such term, covenant or condition or any subsequent breach of the same or any other term, covenant or condition herein contained. The subsequent acceptance of Rent hereunder by Landlord shall not be deemed to be a waiver by Landlord of any preceding breach of any term, covenant or condition of this Lease, other than the failure of Tenant to pay the particular rental so accepted, regardless of Landlord's knowledge of such preceding breach at the time of acceptance of such Rent. 24. Hold Over. If Tenant holds possession of the Leased Premises after the expiration of the Term or renewal term, Tenant shall become a Tenant from month-to-month upon the terms herein specified, at a monthly Rent equal to one hundred twenty (120%) percent of the monthly installment of annual base Rent payable for the month next preceding the date of expiration, which said sum shall be payable monthly in advance in lawful money of the United States as aforesaid, on the first day of each month. Said month-to- month tenancy shall continue until such time as either Landlord or Tenant shall give the other at least thirty (30) calendar days' prior written notice of intention to terminate the month-to-month tenancy and said tenancy shall terminate on the last calendar day of the month in which the 30-day notice period expires. 25. Remedies Cumulative/Survival. It is understood and agreed that the remedies herein given to Landlord shall be cumulative and the exercise of any other remedy by Landlord shall not be to the exclusion of any other remedy. Each and all of said remedies shall be exercisable repeatedly and as often as may be necessary. It is further understood and agreed that all remedies provided to Landlord shall survive the expiration or termination of the Lease. 26. Options to Purchase. Provided Tenant is not then in breach of any provision of this Lease, Tenant will have the right to purchase the Leased Premises during the Term, and Landlord will sell the same -14- to the Tenant, on the following terms and conditions: If the sale is concluded before May 31, 2009, the purchase price will be $250,000.00; if the sale is concluded between June 1, 2009 and the end of the Term, the purchase price will be $275,000.00. Tenant will exercise this right by written notice to Landlord accompanied by three (3) copies of the Contract of Sale attached hereto as Exhibit B; duly executed by Tenant and by payment of the down payment provided for therein. If not previously duly exercised, Tenant's right to purchase the Leased Premises will terminate upon the expiration or termination of this Lease. 27. Surrender of Leased Premises. Tenant shall, upon the expiration or sooner termination of the Term or any month-to-month tenancy, promptly surrender and deliver the Leased Premises to Landlord without demand therefor in good condition, ordinary wear and tear excepted. Tenant shall remove or cause to be removed all personal property, trade fixtures and all other items which Tenant may be entitled under the terms hereof from the Leased Premises. 28. Notices. All notices provided to be given under this Lease shall be in writing and shall be deemed given when delivered personally or deposited in the United States mail, postage prepaid, return receipt requested, addressed to the party at the address set forth below: To Landlord: Ron Moyer Service Center, Inc. Attn: Mr. Ronald Moyer 1719 Locust Street New Cumberland, PA 17070 To Tenant: ML Collare, Inc. Attn: Mr. Mark Collare 5542 Bentz Road Spring Grove, PA 17362 Either party may change the notice address by providing the other party with written notice as herein provided. -15- 29. Condition of Leased Premises. A. Before the Commencement Date, Landlord will perform the following in the Leased Premises: Removal of: Overhead lift Air Compressor Lubrication Equipment B. Tenant acknowledges and agrees that: (1) Landlord has advised Tenant that: a gas station and auto service and repair business previously operated on the Leased Premises; and in accordance with applicable laws, Landlord has, in accordance with requirements of the Pennsylvania Department of Environmental Protection, conducted remediation of certain ground water contamination on the Leased Premises, except that monitoring of conditions on the Leased Premises will continue during all or part of the Term. Tenant, and its employees, customers and invitees shall not be entitled to any claim against Landlord in any way arising from or related to any of said conditions. (2) Neither Landlord nor any agent of Landlord has made any representations or promises with regard to the Leased Premises for the Term, except as expressly set forth in this Lease. Tenant's taking possession of the Leased Premises shall be conclusive evidence against Tenant that Tenant accepts the same as is and that the Leased Premises were in satisfactory condition at the time of such possession. 30. Hazardous Materials. Tenant shall not cause or allow any Hazardous Material to be brought on to, used on or stored on the Leased Premises. Breach of this provision shall constitute a material default under this Lease. For purposes of this paragraph, the term "Hazardous Material" shall include, without limitation, substances defined as "hazardous substances," "hazardous waste" or "toxic substances" in the Comprehensive Environmental Response, Compensation, and Liability Act of 1980, as amended, 42 U.S.C. Section 9601, et seg., the Hazardous Materials Transportation Act, 49 U.S.C. Section 1801, et seq., and the Resources, Conservation and Recovery Act of 1976, 42 U.S.C. Section 6901, et sec. -16- 31. Subordination. This. Lease, together with Tenant's rights pursuant to this Lease, are specifically subordinate to the lien and priority of any mortgagee, now or hereafter existing to include, if applicable, any security interest in favor of such mortgagee, and Tenant agrees, in the future, to execute a Subordination, Non-Disturbance and Attornment Agreement to subordinate Tenant's leasehold interests created pursuant to this Lease to the lien and priority of any future mortgage in favor of such lender. 32. Parties Bound. This Lease shall be binding upon and shall inure to the benefit of the parties hereto and their respective successors and assigns permitted by this Lease. 33. Governinq Law. This Lease shall be construed under and in accordance with the laws of the Commonwealth of Pennsylvania and all obligations of the parties created hereunder are performable in Cumberland County, Pennsylvania. 34. Legal Construction. In case one or more of the provisions contained in this Lease shall be held to be invalid, illegal or unenforceable in any respect, such invalidity, illegality or unenforceability shall not affect any other provision thereof and this Lease shall be construed as if such invalid, illegal or unenforceable provision had never been contained herein. 35. Survival of Remedies. The remedies provided to Landlord and Tenant under the terms and conditions of this Lease shall survive the expiration or termination of this Lease. 36. No Election of Remedies. Nothing set forth in this Lease or otherwise shall be deemed or construed as an election of remedy by Landlord and Landlord shall have all rights reserved with respect to any remedy in the event of a default of Tenant. 37. Net Lease. Landlord and Tenant intend that all Rent (including Additional Rent) payable by Tenant during the Term and, if applicable, renewal term, shall be net to Landlord so that this Lease shall yield the Landlord the net Rent specified herein during the Term and that all costs, expenses and obligations of every kind or nature whatsoever relating to the Leased Premises, except as otherwise specifically provided herein, shall be paid by Tenants (other than income, state or similar taxes imposed upon Landlord with respect to the Rent hereunder), together with, if applicable, sales tax thereon. -17- 38. Negation of Personal Liability. Notwithstanding anything contained herein to the contrary, Tenant agrees that Landlord shall have no personal liability with respect to any of the provision of this Lease and Tenant shall look solely to the estate and property of Landlord in the Building and the Land for the satisfaction of Tenant's remedies including without limitation the collection of any judgment or the enforcement of any other judicial process requiring the payment or expenditure of money by Landlord in the event of any default or breach by Landlord with respect to any of the terms and provisions of this Lease to be observed or performed by Landlord, subject, however, to the prior rights of any holder of any mortgage covering all or part of the Land and Building, and no other assets of Landlord shall be subject to levy, execution or other judicial process for the satisfaction of Tenant's claim. This Paragraph 44 shall inure to the benefit of Landlord's successors and assigns. 39. Tenant's Right of Early Termination. Tenant may terminate this Lease any time after the end of the second Lease year, upon not less than one hundred and twenty (120) days prior written notice to Landlord, subject to the following conditions: A. Commencing on the business day immediately proceeding the giving of Tenant's notice of termination and continuing until the date of termination, Tenant shall not be in breach of any provision of this Lease; B. Tenant delivers possession of the Premises vacant and broom clean to the Landlord not later than the termination date set forth in Tenant's notice. C. Commencing on the first business day after the giving of Tenant's notice, Landlord shall have the right to enter the Leased Premises to show the same to prospective tenants and purchasers. 40. No Recording. Recording of this Lease or any Memorandum of this Lease by Tenant is strictly prohibited. Tenant's breach of this provision shall constitute a material breach of this Lease. 41. Authority of the Parties. Each party warrants to the other that it is authorized to enter into this Lease, that the person signing on its behalf is duly authorized to execute this Lease and that no other signatures are necessary. -18- 42. Miscellaneous. A. Tenant represents and warrants that it has not dealt with any broker in connection with this Lease or the Leased Premises. Tenant will indemnify, hold harmless and defend Landlord from any claim of any broker in any way related to or arising from any action of Tenant. B. If during any two (2) months, whether or not consecutive, in any twelve (12) month period, Tenant has failed to pay when due any amount of annual base Rent or Additional Rent, and such amount has not been paid within five (5) days after notice to Tenant of the same, then any subsequent failure by Tenant to pay any amount due Landlord, which continues for more than five (5) days after notice to Tenant, shall be deemed a deliberate default under this Lease, for which Landlord may terminate this Lease upon three (3) days prior written notice to Tenant. C. The captions of this Lease are for convenience and reference only and in no way define, limit or describe the scope or intent of this Amendment. D. Submission by Landlord of this Lease for execution by Tenant shall confer no rights nor impose any obligations on Landlord or Tenant unless and until both Landlord and Tenant shall have executed this Lease, duplicate originals thereof shall have been delivered by Landlord and Tenant to each other, and Tenant has made all payments required in this Lease. E. Simultaneously with its execution of this Lease, Tenant shall deliver to Landlord, copies of the GUARANTY OF LEASE attached hereto as Exhibit C, duly executed by all of the stockholders and principals of the Tenant (collectively the "Guarantors"). F. Tenant's obligations under this Lease are expressly conditioned upon its obtaining the approval of the following to its intended business in the Leased Premises, if required: Pennsylvania Department of Agriculture, Lower Allen Township. Tenant shall, at its own cost and expense, promptly apply for and diligently prosecute its applications for such approvals. If such approvals have not been obtained by the Commencement Date, Tenant may, upon three (3) days prior written notice to Landlord, adjourn the Commencement Date until the earlier of (i) the date when both of such approvals have been obtained, or (ii) July 1, 2004. If Tenant has not obtained both such approvals by July 1, 2004, Tenant may terminate this Lease by written notice to the Landlord given not later than July 5, 2004. -19- 43. Entire Agreement/Amendments. This Lease together with Exhibit A and Exhibit B contains the entire agreement between Landlord and Tenant and this Lease shall not be modified, altered or amended except in writing signed by Landlord and Tenant. IN WITNESS WHEREOF, Landlord and Tenant, each intending to be legally bound, have caused this Commercial Lease to be signed and delivered, in duplicate, as of the day and year first above written. Landlord: WITNESS: RON MOYER'S SERVICE CENTER, INC. Y: Ronald M er, P si nt Tenant: / ML COLLARE, INC. By: Lori L. Collare, President 28526 -20- COMMONWEALTH OF PENNSYLVANIA : . SS. COUNTY OF CUMBERLAND On the '3 day oft 2004, before me, the undersigned officer, personally appeared RONALD MOYER, who acknowledged himself to be the President of RON MOYER'S SERVICE CENTER, INC., a corporation, and that he as such President, being authorized to do so, executed the foregoing instrument for the purposes therein contained by signing the name of the corporation as its President. IN WITNESS WHEREOF, I hereunto set my hand an I seal. Notary Public Corn ROBE L ?E ?I41kEk, dR., Notary Public Lower Allen Twp. Cumberland County My Commission Expires Sept 5, 2006 COMMONWEALTH OF PENNSYLVANIA : : SS. COUNTY OF ?WL Jul On the OA day of AAay, 2004, before me, the undersigned officer, personally appeared LORI L. COLLARE, who acknowledged herself to be the President of ML COLLARE, INC., a corporation, and that she as such President, being authorized to do so, executed the foregoing instrument for the purposes therein contained by signing the name of the corporation as its President. IN WITNESS WHEREOF, I hereunto set my hand and ry (SEAL) expires COMMONWEALTH OF PENNSYLVANIA NOTARIAL SEAL JENNY S. JOHNSON, Notary Public Red Lion goro, York County My C6nlrY IRSIon EXPIMS Got: 11, 2007 -21- EXHIBIT A RULES AND REGULATIONS 1. Tenants and its employees, guests and invitees, shall not loiter in the entrance or corridors, nor in any way obstruct the sidewalks, parking and lawn areas, entry passages, halls and stairways and shall use the same only as otherwise appropriate. 2. The sash doors, sashes, windows, glass doors, lights and skylights that reflect or admit light into the halls or other places of the Building shall not be covered or obstructed. The toilets and urinals shall not be used for any other purpose other than those for which they were constructed, and no rubbish, newspaper or other substance of any kind shall be thrown into them. Waste and excessive or unusual use of water shall not be allowed. If Tenant shall in any way deface the walls, ceilings, partitions, floors, wood, stone or iron work, Tenant shall repair and restore said surface upon termination of its occupancy. The expense of any breakage, stoppage or damage resulting from violation of this Rule shall be borne by Tenant who has caused such breakage, stoppage or damage. 3. Electric wiring of every kind shall be introduced and connected as directed by Landlord and no boring or cutting for wires will be allowed except with the consent of the Landlord. The location of telephones, call boxes, etc. shall be reasonably prescribed by Landlord. 4. Landlord shall prescribe the weight, size and position of all safes and other property of unusual size or weight brought into the Building. Landlord will not be responsible for any loss of or damage to any such safe or property from any cause, but all damage done to the Building by moving or maintaining any such safe or property shall be repaired at the expense of Tenant. Landlord agrees to Tenant's use of office machinery and equipment normally used in Tenant's business, including, but not limited to, electric typewriters, automatic editing typewriters, data processing equipment, computer terminals and reproduction equipment. 5. No additional lock or locks shall be placed by Tenant on any door in the Building unless written consent of Landlord shall have first been obtained. Two keys will be furnished by Landlord for the Leased Premises; all keys shall be surrendered to Landlord upon termination of tenancy. 6. Tenant, its agents or employees, shall not make or permit any improper noises in the Building. Tenants, their agents or employees, shall not throw substances of any kind out of the windows or doors, nor -22- down passages of the Building, not sit, nor place anything upon the window sills, nor bring into or keep within the Building any animal or bicycle, motorcycle or other vehicle. 7. Landlord reserves the right to make such other further reasonable rules and regulations as in its judgment may from time to time be reasonably necessary for the safety and cleanliness of, and for the preservation of good order in the Building. -23- EXHIBIT B -24- AGREEMENT OF SALE FOR REAL ESTATE THIS AGREEMENT OF SALE FOR REAL ESTATE ("Agreement of Sale"), made and entered into this day of , 20_, by and between RON MOYER'S SERVICE CENTER, INC., a Pennsylvania corporation, with its principal office located at 1719 Locust Street, New Cumberland, Pennsylvania 17070, hereinafter called "Seller" and ML COLLARE, INC., a Pennsylvania corporation, with its principal office located at 5542 Bentz Road, Spring Grove, Pennsylvania 17362, hereinafter called "Purchaser." BACKGROUND A. Seller is the owner of an improved tract of real estate situate in Lower Allen Township in, Pennsylvania, being municipally known and numbered as 1 Commercial Drive, Camp Hill, Pennsylvania, and being improved with a one story structure. B. Seller desires to sell the above described real estate, together with the improvements erected thereon and Purchaser desires to purchase said real estate, together with the improvements erected thereon, for the purchase price and under the terms and conditions hereinafter provided. C. Seller and Purchaser desire to confirm their understanding in writing. NOW, THEREFORE, for good and valuable consideration, receipt of which they acknowledge, the parties hereto, each intending to be legally bound, agree as follows: 1. Background. The background set forth above is incorporated herein. 2. Subject Real Estate/Seller. The real estate owned by Seller which is the subject of this Agreement of Sale is an improved tract of real estate situate in Lower Allen Township, Pennsylvania, being municipally known and numbered as 1 Commercial Drive, Camp Hill, Cumberland County, Pennsylvania, and being improved with a one story structure. Said real estate, together with the improvements erected thereon, is hereinafter called the "Property", and is more particularly bounded and described on Exhibit "A" attached hereto and made part hereof. 3. Sale and Purchase. Seller agree to sell to Purchaser and Purchaser agrees to purchase from Seller the Property for the purchase price and under the terms and conditions set forth herein. 4. Purchase Price. Purchaser shall pay to Seller for the Property the aggregate purchase price computed as follows: If the sale is concluded before May 31, 2009, the purchase price will be $250,000.00; if the sale is concluded between June 1, 2009 and May 31, 2014, the purchase price will be $275,000.00. The purchase price will be paid as follows: A. Upon execution of this Agreement of Sale, Purchaser shall pay five (5%) percent of the purchase price as the down payment. B. At the time of settlement, as hereinafter described, Purchaser shall pay to Seller by bank check, certified check or title insurance company check, the remaining ninety-five (95%) percent of the purchase price. 5. Title. A. Ouality of Title. As of the date of settlement, title to the Property shall be good and marketable, fee simple title, free and clear of all liens and encumbrances subject to only such easements and restrictions of record and such facts as an accurate survey would show. Said title shall be insurable by a reputable title insurance company doing business in the Commonwealth of Pennsylvania at regular rates. B. Title Examination. Purchaser shall, at Purchaser's sole cost and expense, cause a title examination of the Property to be completed within twenty (20) calendar days of the date of this Agreement of Sale. C. Objections to Title. Within seven (7) calendar days after the date of the title examination, Purchaser shall advise Seller of any objections in title or any easements or other matters with respect to title to which Purchaser objects. Seller shall advise Purchaser, in writing, within three (3) days as to whether Seller can cure any objection to title. If Seller is unable to cure any such objection to title then, in that event, Purchaser shall have the right, in Purchaser's sole discretion, to terminate this Agreement of Sale upon written notice to Seller. -2- D. Mortgages or Other Liens or Encumbrances. Seller agrees, with respect to any existing mortgage or other liens or encumbrances that can be liquidated from the proceeds of the sale, that said mortgage or other lien or encumbrance shall be satisfied from said proceeds. E. Termination. In the event that Purchaser shall elect to terminate this Agreement of Sale pursuant to the provisions of this Paragraph 5 then, in that event, Purchaser shall advise Seller, in writing, whereupon Seller shall return to Purchaser the down payment provided for in Paragraph 4A, and this Agreement of Sale shall then be null and void and there shall be no further liability by either party to the other. 6. Deed. Seller shall convey the Property to Purchaser by special warranty deed. 7. Realty Transfer Taxes. Seller shall pay one-half (1/2) of the applicable realty transfer taxes assessed in connection with this conveyance. Purchaser shall pay one-half (1/2) of the applicable realty transfer taxes assessed in connection with this conveyance. 8. Adjustments at Settlement. A. School District Real Estate Taxes. School District real estate taxes for the fiscal year in which settlement occurred shall be prorated as of the date of settlement based on the fiscal year of the taxing authority. B. County and City Real Estate Taxes. All county and city real estate taxes for the calendar year in which settlement occurs shall be adjusted as of the date of settlement based on the calendar year of the taxing authority. C. Sewer, Water, Gas, Electricity, etc Purchaser currently leases the Property from the Seller pursuant to a Lease (the "Lease") under the terms of which, Purchaser is required to pay all charges for sewer, water, gas, electricity, and any other utilities to the Property. Accordingly, at settlement there will be no adjustment between the parties for charges for sewer, water, gas, electricity, or other utilities to the Property, unless for any reason Purchaser owes Seller for any of the same. D. Other Charges. At settlement, Purchaser will pay Seller all other amounts owed for any reason to Seller, unless the terms of any such indebtedness specifically provide otherwise. -3- 9. Settlement. Settlement with respect to the Property shall occur on the forty-fifth (45th) day after the date of this Agreement (or, if not a business day, then on the next business day thereafter) at 4:00 P.M. (prevailing time) in the offices of Purchaser's title agent or settlement agent, located within twenty-five (25) miles of the Property. Nothing set forth in this Paragraph 9 shall be construed, in any way, to affect any condition precedent set forth in this Agreement of Sale with respect to either the obligation of Seller to convey the Property to Purchaser or the obligation of Purchaser to purchase the Property from Seller. 10. Condition of Premises. The parties agree and the Purchaser expressly acknowledges and understands that it is buying the property in its present condition and that the Seller makes no representation or warranty of any kind whatsoever with regard to the condition of the Property or any of the components thereof or any part of the structure or any of the improvements on the land. The Property is being sold "as is" now, and at the time of the settlement. 11. Possession/Property. Purchaser acknowledges that it is currently in possession of the Property pursuant to the Lease, and that at settlement, Seller shall not be further obligated to deliver possession of the Property. 12. Seller' Representations and Warranties. To induce Purchaser to enter into this Agreement of Sale, Seller, to the best of its knowledge and belief, represents and warrants to Purchaser with respect to the Property that: A. Taxes. No federal, state or local tax liens exist or have been assessed with regard to Seller which could impose transferee liability on Purchaser under the Internal Revenue Code of 1986, as amended, or any other applicable state or local law. B. Title and Leases. Seller is the owner in fee simple, absolute of the Property. The Property is subject to the Lease between Seller and Purchaser. C. All assessments of any kind concerning all or any portion of the Property: (1) which become due in whole or in part on or after the date of settlement will be payable by the Purchaser. -4- r (2) which become due in whole before the date of settlement, or any part of which becomes due before the date of settlement, will be paid by the Seller, subject to the terms of the Lease. D. Other Agreements. Except for the Lease, Seller has not entered into any other agreement to transfer any interest or any part or all of the Property, including, but not limited to, any options or other contractual obligations pertaining to the Property. E. Compliance. Seller has complied with, and the Property is free from, all notices of violation of law or municipal ordinances, orders or requirements noted in or issued by any governmental agency having jurisdiction with regard to the Property, except for any of the same in any way related to or arising from Purchaser's leasing, use or occupancy of the Property. F. Construction Repairs. Seller has not caused any delivery of materials, or actual performance by any contractor, in connection with the construction, repair or renovation of any improvement erected upon the Property within the four (4) month period preceding the date of this Agreement of Sale for which Seller has not made payment, in full. G. Governmental Notices. No notice has been issued and served upon Seller or upon the Property from or by any governmental authority concerning the making of any required alterations, repairs or corrections to any condition now affecting the Property which remain unsatisfied or unpaid, except for any of the same in any way related to or arising from Purchaser's leasing, use or occupancy of the Property. H. Organization. That Seller is a Pennsylvania nonprofit corporation, duly organized, validity existing and in good standing under the laws of the Commonwealth of Pennsylvania and has requisite corporate power to sell the Property and to carry out the terms and conditions of this Agreement of Sale. 1. Authority. That Seller has corporate power to execute, deliver and perform this Agreement of Sale and has taken all necessary action to authorize the execution, delivery and performance of this Agreement of Sale. No consent of any other party (including any shareholder of Purchaser) and no consent, license, approval, authorization, or registration is required in connection with the execution, delivery, performance, validity and enforceability of this Agreement of Sale. -5- 4 13. Purchaser's Representations and Warranties. To induce Seller to enter into this Agreement of Sale, Purchaser, to the best of its knowledge and belief, represents and warrants to Seller that: A. Organization. That Purchaser is a Pennsylvania nonprofit corporation, duly organized, validity existing and in good standing under the laws of the Commonwealth of Pennsylvania and has requisite corporate power to purchase the Property and to carry out the terms and conditions of this Agreement of Sale. B. Authority. That Purchaser has corporate power to execute, deliver and perform this Agreement of Sale and has taken all necessary action to authorize the execution, delivery and performance of this Agreement of Sale. No consent of any other party (including any shareholder of Purchaser) and no consent, license, approval, authorization, or registration is required in connection with the execution, delivery, performance, validity and enforceability of this Agreement of Sale. C. That as of this date and continuing until settlement of this sale, Purchaser is not in breach of any provision of the Lease, and the same is in full force and effect. 14. Conditions Precedent - Purchaser's Obligation. The obligation of Purchaser to consummate the transaction contemplated by this Agreement of Sale is subject to the accuracy on the date of settlement of the representations and warranties of Seller set forth in Paragraph 13 and the satisfaction of the following specific conditions precedent: that Seller are able to deliver the nature and quality of title that is described in Paragraph 5 as of the date of settlement. 15. Conditions Precedent - Seller's Obligation. The obligation of Seller to consummate the transaction contemplated by this Agreement of Sale is subject to the accuracy on the settlement date of the representations and warranties of Purchaser and satisfaction of the following specific condition precedent: Purchaser shall have paid or shall have caused to be paid to Seller the purchase price, in full. 16. Events of Default; Remedies. A. Purchaser - Events of Default. The following shall constitute events of default ("Events of Default") by Purchaser under this Agreement of Sale: -6- 41 (1) Payment. Failure by Purchaser to make any required payment under this Agreement of Sale on or before the close of business on the due date of that payment. (2) ' Representations and Warranties. Any representation or warranty made by Purchaser in this Agreement of Sale shall prove to be false or misleading in any material respect. (3) Other. Failure by Purchaser to observe any of Purchaser's obligations set forth in this Agreement of Sale. B. Events of Default - Seller. The following shall constitute events of default ("Events of Default") by Seller under this Agreement of Sale. (1) Conveyance of Property. The failure of Seller to convey the Property to Purchaser under the terms and conditions of this Agreement of Sale on or before the date of settlement. (2) Representations and Warranties. Any representation or warranty made by Seller in this Agreement of Sale shall prove to be false or misleading in any material respect. (3) Other. Failure by Seller to observe or perform any of their obligations set forth in this Agreement of Sale. C. Remedies - Seller. Upon the occurrence of Event of Default described in Paragraph 17-A and so long as the Event of Default shall continue uncured or unwaived for a period of ten (10) days, Seller may: (1) Elect to terminate this Agreement of Sale and retain the down payment provided for in Paragraph 4(a), which shall be Seller' sole and exclusive remedy if Seller elect to terminate this Agreement of Sale; or, in the alternative; (2) Pursue any other remedy available at law or equity. -7- J mh/0914 89/Moyer. Deed THIS INDENTURE MADE THE day of in the year of our Lord one thousand nine hundred eighty-nine (1989). BETWEEN RONAID L. M3YER AND M. GMCIANNA. MWER, his wife, Grantors, and RCN M3YER' S . SERVICE CEDER, INC. Grantee, WITNESSETH, that the said Grantors, for and in consideration of the sum of ORE HU% M TiiASAND DMLARS AMID NO CENTS ($100,000.00), lawful money of the United States of America, unto them well and truly paid by the said Grantee at and before the sealing and delivery of these presents, the receipt whereof is hereby acknowledged, have granted, bargained, sold, aliened, enfeof fed, released and confirmed, and by these presents do grant, bargain, sell, alien, enfeoff, release and convey and confirm unto the Grantee, its heirs and assigns, ALL THAT CAIN lot or piece of ground situate on the Northwesterly corner of Pennsylvania State Highway Legislative Route No. 21022 known as Carlisle Road, and Comnercial Drive, in Block "I", on the Plan of "Greater Highland Park", in the Township of Lower Allen, County of Cumberland and Commonwealth of Pennsylvania, more fully bounded and described by true North bearings derived from solar observations of the Pennsylvania Department of Highways, and surveyed by Earle M. Frankhouser Associates, Inc. of Reading, Pennsylvania, as follows, to wit: • BEGIMING at the intersection of the Northerly right-of-way line of Pennsylvania State Highway Legislative Route No. 21022 (fifty (50) feet wide) with the Westerly lot line of Commercial Drive (sixty (60) feet wide); thence extending along the right-of-way line of Pennsylvania State Highway Legislative Route No. 21022, known as the Carlisle Road, the four (4) following courses and distances: (1) North eighty-five (85) degrees six (6) minutes West by a line twenty-five (25) feet Northward from and parallel with the center line of said right-of-way, a distance of thirty-two and thirty-one one-hundreths (32.31) feet to a point; (2) South four (4) degrees fifty-four (54) minutes West, a distance of fice (5) feet to a point; (3) North eighty-five (85) degrees six (6) minutes West, by a line twenty (20) feet Northward from and parallel with the center lien of said highway, a distance of seventy-two and sixty-seven one-hundredths (72.67) feet to the point of curvature in said Northerly right-of-way line; (4) in a Westerly direction along the are of a curve def lecting to the left having a radius of two thousand five hundred sixty-six and sixty-four one-hundredths 92,566.65) feet to a central angle of no (0) degrees thirty-two (32) minutes one and thirteen one-hundredths (1.13 seconds, the chord of said curve bearing North eighty-five (85)- degrees twenty-two (22) minutes West for a distance of twenty-three and ninety-one one-hundredths (23.91) feet, a distance along the arc of twenty-three and ninety-one one hundredths (23.91) feet to a point; thence leaving said Carlisle Road and extending along House No. 1506 Carlisle Road, the property now or late of Raymond R. Kurtz and Catherine B. Kurtz, North eight (8) degrees no (0) minutes twenty (20) seconds West, a distance of one hundred forty-eight and thirty-five one-hundredths (148.35) feet to a point; thence extednding along land now or late of N. P. Ninneman and Naomi S. Ninneman, his wife, South eighty-eight (88) degrees ten (10) minutes fifty (50) seconds East, a distance of one hundred fifty-nine and sixty-two one-hundredths (159.62) feet to the place of BEGINNING. OONTAMING in area sixteen thousand five hundred fifty and one-tenth (16,550.1) square feet of land. BEING the same premises which MDBIL OIL CORPORATION by its deed dated July 19, 1976, and recorded in the Cumberland County Recorder of Deeds' Office on August 4, 1976 at Record Book S, Volume 26, Page 615, granted and conveyed to RONALD L. NDYER and M. GEORGIANNA MOYER, his wife, the Grantors herein. TOGM ER with all and singular the buildings, improvements, ways, streets, alleys, passages, waters, water-courses, rights, liberties, privileges, hereditaments and appurtenances whatsoever thereunto belonging, or in any wise appertaining, and the t ? :! 6 reversions and remainders, rents, issues and profits thereof; and all the estate, right, title, interest, property, claim and demand whatsoever of them, the said Grantors, in law, equity, or otherwise howsoever, of, in, to or out of the same. TO HAVE AND TO HOLD the said lot or piece of ground above described, with the buildings and improvemnts thereon erected, hereditaments and premises hereby granted or mentioned, and intended so to be, with the appurtenances, unto the said Grantee, its heirs and assigns, to and for the only proper use and behoof of the said Grantee, its heirs and assigns, forever. And the said Grantors hereby covenant and agree that they will warrant specially the property hereby conveyed. IN WITNESS WHEREOF, the said Grantors hereunto set their hands and seals the day and year first above written. WITNESS: (SEAL) Ronald L. Moyer (SEAL) M. Georgianna Mayer 1 V COMMONWEALTH OF PENNSYLVANIA . ss: COUN'T'Y OF CUMBERLAND On this, the day of , 1989, before me, the undersigned officer, personally appeared RONALD L. MOYER, known to me (or satisfactorily proven) to be the person whose name is subscribed to the within instrument, and acknowledged that RONALD L. MDYER executed the same for the purposes therein contained. IN WITNESS WHEREOF, I hereunto set my hand and official seal. Title of Officer COMMONWEALTH OF PENNSYLVANIA . ss: COUNTY OF CUMBERLAND , (SEAL) On this, the day of , 1989, before me, the undersigned officer, personally appeared M. GEORGIANNA MOYER, known to me (or satisfactorily proven) to be the person whose name is subscribed to the within instrument, and acknowledged that M. GEORGIANNA MOYER executed the same for the purposes therein contained. IN WITNESS WHEREOF, I hereunto set my hand and official seal. (SEAL) Title of Officer 4 R CERTIFICATE OF RESIDENCE I do hereby certify that the precise residence and complete post office address of the within named Grantee is: Attorney for COMMONWEALTH OF PENNSYLVANIA COUNTY OF : ss: RECORDED on this day of A.D. 19 in the Recorder's Office of the said County, in RECORD BOOK PAGE Given under my hand and the seal of the said Office, the date above written. , Recorder. i Z v ? ly 1 G [W " d h.1 f t? GJ Q -T3 M -G IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA RON MOYER SERVICE, INC., Plaintiff NO. 07-173 CIVIL TERM V. CIVIL ACTION - LAW M.L. COLLARE, INC., Defendant PETITION TO OPEN JUDGMENT CONFESSED UNDER COMMERCIAL LEASE TO THE HONORABLE, THE JUDGES OF THE COURT: The Petition of M.L. Collare, Inc. respectfully represents. 1. That this corporation is the defendant in the above-entitled cause. 2. That judgment was entered against it in this court in said cause on the 9' day of January, 2007, by virtue of a warrant of attorney contained in a commercial lease between the parties thereto, dated June 3, 2004, which related to a commercial lease for the property located at 1 Commercial Drive, Camp Hill, Cumberland County, Pennsylvania 17110. 3. That said lease required Petitioner to pay a monthly lease amount, utilities, and real estate taxes and maintain repair to the leased premises. 4. That when the parties hereto revised the original lease agreement for the 2006 season, the months of July and August 2005 were orally agreed to be waived to assist with losses that had been incurred. 5. That certain lease payments were timely made, however, Plaintiff applied said payments to the wrong months resulting in late fees that are not owed. 6. That the interest charged by Plaintiff is calculated improperly. 7. That Plaintiff deducted alleged repairs from the security deposit that are not proper charges. WHEREFORE, your Petitioner respectfully requests that your Honorable Court grant a rule against the above-named Plaintiff to show cause why the judgment entered in the above- entitled cause should not be opened and the Defendant let into a defense; meanwhile all proceedings to stay. LAW OFFICES OF CRAIG A. DIEHL Date: February 2007 By: QC4* Craig T Diehl, Esquire Attorney for Defendant Attorney I.D. No. 52801 3464 Trindle Road Camp Hill, PA 17011 Telephone: (717)763-7613 Fax: (717)763-8293 -2- VERIFICATION I, CRAIG A. DIEHL, ESQUIRE, being duly sworn according to law, deposes and says that I have personal knowledge of the facts set forth in the Petition to Open Judgment Confessed Under Commercial Lease and that they are true and correct; that I take this verification on behalf of Petitioner for the reason that he is outside the jurisdiction of the court and cannot be reached in time. e 1: A Craig A. 10iehl, squire Sworn and subscribed to k before me this if day of , 2007. Aalo? - tt# Ac ani of PEna-snvA Nolowsed A Ndwy Pubic Carne eora, CW*@dWW C=* NV OMW*" E*sa FW 17, 2010 ?YMnh A?odaMon of NotariN CERTIFICATE OF SERVICE AND NOW, this _ day of 2007, the -- Z&Zt:j??? undersigned hereby certifies that a true and correct copy of the foregoing PETITION TO OPEN JUDGMENT CONFESSED UNDER COMMERCIAL LEASE was served upon the opposing party by way of United States first class mail, postage prepaid, addressed as follows: David W. DeLuce, Esquire Elizabeth D. Snover, Esquire Johnson, Duffie, Stewart & Weidner 301 Market Street P. O. Box 109 Lemoyne, PA 17043-0109 (Counsel for Plaintiff) LAW OFFICES OF CRAIG A. DIEHL By: Barbara J. Smith, Legal Secretary D CO } ~- a RON MOYER SERVICE, INC., IN THE COURT OF COMMON PLEAS OF PLAINTIFF CUMBERLAND COUNTY, PENNSYLVANIA V. M. L. COLLARE, INC., DEFENDANT NO. 07-0173 CIVIL ORDER OF COURT AND NOW, this 13th day of February, 2007, upon consideration of the Petition to Open Judgment Confessed Under Commercial Lease, IT IS HEREBY ORDERED AND DIRECTED that: 1. A Rule is issued upon the Plaintiff to show cause why the relief requested should not be granted; 2. The Plaintiff will file an answer on or before March 5, 2007; 3. If no answer to the Rule to Show cause is filed by the required date, the relief requested by Defendant shall, be granted upon the Court's receipt of a Motion requesting Rule be made Absolute. If the Plaintiff files an answer to this Rule to Show Cause, and the answer raises disputed issues of material fact, an evidentiary hearing will then be scheduled. The Prothonotary is directed to forward said Answer to this Court. By the Court, David W. DeLuce, Esquire Elizabeth D. Snover, Esquire Counsel for Plaintiff Craig A. Diehl, Esquire Attorney for Defendant vt+?t " \/ M. L. Ebert, Jr., 0 J. bas V NV/V',R4,'PSIN-3d! Z I :Z Wd S ! 83,E LOOZ A8ViG GHiGdd M JO RON MOYER SERVICE, INC., IN THE COURT OF COMMON PLEAS OF PLAINTIFF CUMBERLAND COUNTY, PENNSYLVANIA V. M. L. COLLARE, INC., DEFENDANT NO. 07-0173 CIVIL ORDER OF COURT AND NOW, this 13th day of February, 2007, upon consideration of the Petition to Open Judgment Confessed Under Commercial Lease, IT IS HEREBY ORDERED AND DIRECTED that: 1. A Rule is issued upon the Plaintiff to show cause why the relief requested should not be granted; 2. The Plaintiff will file an answer on or before March 5, 2007; 3. If no answer to the Rule to Show cause is filed by the required date, the relief requested by Defendant shall. be granted upon the Court's receipt of a Motion requesting Rule be made Absolute. If the Plaintiff files an answer to this Rule to Show Cause, and the answer raises disputed issues of material fact, an evidentiary hearing will then be scheduled. The Prothonotary is directed to forward said Answer to this Court. By the Court, David W. DeLuce, Esquire Elizabeth D. Snover, Esquire Counsel for Plaintiff Craig A. Diehl, Esquire Attorney for Defendant M. L. Ebert, Jr., J. .2. /S 6 7 bas Z I =Z Wd S ! 83J LOOZ AsvioNciiiiodd 3HI ?O 30WO-0313 Johnson, Duff ie, Stewart & Weidner By: David W. DeLuce I.D. No. 41687 Elizabeth D. Snover I.D. No. 200997 301 Market Street P. O. Box 109 Lemoyne, Pennsylvania 17043-0109 (717) 761-4540 Attorneys for Plaintiff RON MOYER SERVICE CENTER, INC., IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff V. M.L. COLLARE, INC, Defendant NO. 07-0173 CIVIL ANSWER TO DEFENDANT'S PETITION TO OPEN JUDGMENT Plaintiff, Ron Moyer Service Center, Inc., by its attorneys Johnson, Duffie, Stewart & Weidner answers the Defendant M.L. Collare, Inc.'s Petition to Open Judgment as follows: 1. Admitted. 2. Admitted. 3. Admitted in part, Denied in part. The Lease more fully details the obligations of tenant M.L. Collare, Inc which also includes, among other things, the payment of attorney's fees and collection costs. 4. Denied. By way of further response, on or about September 2005, Mark Collare, President of M.L. Collare, Inc. met with Ronald and Georgianna Moyer, Officers of Ron Moyer Service Center, Inc. (Landlord) and proposed that the 2004 Lease be amended so that he would be absolved of monthly rental payments from October 2005 through March 2006 (the off-season on this ice cream business) in exchange for an increased rental payment of Two Thousand Two Hundred Dollars ($2,200.00) from April 2006 through September 2006. The addendum decreased the base rent between October 1, 2005 and September 30, 2006 from $21,600.00 to $13,200.00. The Lease Addendum reflecting this agreement was executed on October 21, 2005 and no where in its terms does it waive the obligation of Tenant to make the July and August 2005 rental payments with applicable late charges. Additionally, no such oral agreement was made as the Lease Addendum was already extremely favorable to M.L. Collare, Inc. and did not contemplate absolving rental payments for months where the business was open and brining in revenue. A true and correct copy of the 2005 Lease Addendum is attached as Exhibit "B" to Plaintiff's Complaint. 5. Denied. 6. Denied. 7. Denied. By way of further response, paragraph 4B required the Tenant to "at his sole cost and expense: maintain and repair the entire leased premises, both structural and non-structural and exterior and interior... promptly repair all damage to the leased premises caused by the Tenant, its employees, agents, customers, guests contractors or invitees." The lease also required the Tenant to pay taxes and utilities for the property. The Three Thousand Three Hundred Dollar ($3,300.00) security deposit has been allocated towards expenses as follows: Kreamer Glass $ 140.29 Susquehanna Valley Tree $ 750.00 Removal of paint from Restroom floor $ 69.50 Sewer bill - Lower Allen Twp. $ 87.92 Remaining balance in account: $2,252.29 Receipts of these repairs and charges are attached hereto as Exhibits "A"-"D". WHEREFORE, Plaintiff demands judgment against Defendant in the amount of Eight Thousand Eight Hundred Fifty-Five Dollars and eighty-four cents ($ 8,855.84) which includes rent, late charges, interest, and attorneys fees pursuant to the lease and gives the Tenant credit for the remaining balance of the security deposit. Respectfully submitted, JOHNSON, DUFFIE, STEWART & WEIDNER r BY: Eliz th D. Snover David W. DeL.uce Exhibi+ A KREAMER BROTHERS GLASS, INC. SERVING THE EAST & WEST SHORE 1714 HUMMEL AVE CAMP HILL PA 17011 (717)737-8717 Fax:(717)737-5517 Customer MOYER RON ANINOW H (717)774-6742 Csr: MJS Tech: _0tt Item Description 1 36" X 25" PLEXIGLAS 1 /8 CLEAR 2 LABOR PER 1 /2 HR - INSTALLED Quote: 12110 Date: 09/28/2006 Item Total 26.35 106.00 ( Notes: JOB: I COMMERCIAL DR ) We appreciate your business. P.O. # DATE ORDERED DATE REC ORDERED BY ORDERED FROM collection agency fees responsibilty of customer QOUTES ARE GOOD FOR 30 DAYS ONLY Signature 17 16Z T a Total Deductible 7 `94 140.29 0.00 le ?v U Terms: C.O.D Payments Balance 0.00 1.40.29 Customer Copy vers:6.7.3 Page: I EXhibl+ B ±4' 262.3 susci 19 Ted g'??,? ?7£?5fl_ Mec? i?7_1g39 I'yjone , ) 9793799 M©?e. (117 [)ATE 006 >>l?i Caw* M°ya ?I ----? -. for gr? -Your bus?ic_ I i , 1 i, t V t'"' 7votal Proposal SUSQUEHANNA VALLEY TREE SERVICE ' 19 TEXACO RD • MECHANICSBURG, PA 17055-2623 014n I: 717..AQ7.1 R1 Q • 717-9d1-n7n9 e FAX 717-691-RiM 1• • 24 HOUR ANSWERING SERVICE • PROPOSAL SUBMITTED TO PHONE DATE STREET JOB NAME CITY, STATE AND ZIP CODE / JOB LOCATION DATE OF JOB - JOB PHONE Wx hereby submit specifications and estimates tor: re I 4V -a> try 1 1r? ,?V .eC?r O. t f ropDSE hereby to furnish material and labor - complete in accordance with above specifications, for the sum of: dollars (s to be made as follows: Ali work to be completed in a workmanlike manner according to standard practices. Any Authoriz / 4,/,(?.a'•?t.-? i alteration or deviation from above specifications involving extra costs will be executed only Signatdfe upon written orders, and will become an extra charge over and above the estimate. Our Note:This proposal may be workers are fully covered by Workmen's Compensation Insurance and Liability Insurance. withdrawn by us if not accepted within days. jl ?rreytanrr of FrII#30521 - The above prices, specifications and conditions If are satisfactory and are hereby accepted-You are authorized to do the work as specified. Signature Payment will be made as outlined above. Date of Acceptance: Signature F.)chibit C-,, 3 2 7 1-4 f r_ J O C` r v \ ? ? C pp J ?? G 2 ? CL cr v CC C N s :D S cn C o c, C.,. C, C• O L.) LIJ CM r) N) C U r? ? tV CY Z Ul = ? ? LLi V? G? O J L r M cn [i. !i 3 Lr- LL ct? O H L1J co C-.) C: LL CL ,? ,. 1- 2 .J F-- I C) O G CL Cr h`-f Z 1 Q. _ Y} H v-i = C CLI C? t' V) ? - UJ CD -- LL O S R? w O ? •:J Cn LL Ch L) to w w N uT- c cr_ 1 0 = o ? ? C .: _. fr N Y O S' C, O f- C7 W Q cc L% S G2S Z 0-4 Std r c v> .v'- ? Yr..r. ..r? .? O p r-1 ttt C7 Q a_ a+ Cam` = 2 :n L) 4 i c ?+ -elk "-'1?71-73 12/11/06 12:41:13 LOWER ALLEN TOWNSHIP Utility Account Status By Account Id / Page No: 1 --------------------------- ---------------------------------------------------- Range: 2480670-0 to 2480670-0 --------------------------------- Section: First to ------------ Last Year: First to Last Account Type: First to Last Report Type: Detail Period: 1 to 12 Include Prior Year/Prd in Bal: Y Print Block/Lot/Qual: N Date: 10/01/06 to 12/11/06 Include Zero Bal: Y Name to Print: Bill To Cycle: First to Last Location to Print: Property Include Service Type: Sewer: Y Refuse: N Account Id Type Section Property Location Date Yr/Prd Trans Type code Meth Check No Principal Penalty Balance Bill To Name Description Address cycle ---------------- ----------------- 2480670-0 COM ------------------------------------------------------- -------------------------------- Prev. Bal: ------------ 0.00 1 COMMERCIAL DR 10/01/0 06 4 ewer Bill COl 79.93 79.93 RON MOYER SERVICE CENTER 11/08/06 0 4 Sewer Pnlt 0.00 7.99 87.92 1719 LOCUST ST. 4TH QUARTER PENALTY NEW CUMBERLAND, PA 17070 sewer: 2 Note: Prior Year/Period Principal and Penalty ARE included on this report. i CERTIFICATE OF SERVICE I hereby certify that a copy of the foregoing Answer to the Defendant's Petition to Open Judgment has been duly served upon the following, by M-1 ositing the same in the United States Mail, postage prepaid, in Lemoyne, Pennsylvania, on 2007 : Craig A. Diehl, Esquire 3464 Trindle Road Camp Hill, PA 17011 JOHNSON, DUFFIE, STEWART & WEIDNER By: Eliza h D. Snover, Esquire RON MOYER SERVICE, INC., IN THE COURT OF COMMON PLEAS OF PLAINTIFF CUMBERLAND COUNTY, PENNSYLVANIA V. M. L. COLLARE, INC., DEFENDANT NO. 07-0173 CIVIL ORDER OF COURT AND NOW, this 30th day of March, 2007, upon consideration of the Defendant's Petition to Open Judgment Confessed Under Commercial Lease and the Answer filed by the Plaintiff, IT IS HEREBY ORDERED AND DIRCTED that a hearing in this matter shall be held on July 16, 2007 at 2:00 p.m. in Courtroom No. 5 of the Cumberland County Courthouse, Carlisle, Pennsylvania. IT IS FURTHER ORDERED AND DIRECTED that on or before July 13, 2007, Counsel shall file a pre-hearing memorandum which shall include: 1. A concise statement of factual issues to be decided at the hearing. II. A list of witnesses the party intends to call at the hearing along with a concise statement of their anticipated testimony. III. A list of all exhibits each party anticipates presenting at the hearing. IV. Copies of any case law which may be relevant to resolution of the stated issue. By the Court, M. L. Ebert, Jr., ?A b lilt A ??y4? ? V ?VJ? 1{P,V }1? 1}t?? J David W DeLuce, Esquire Elizabeth D. Snover, Esquire Counsel for Plaintiff Craig A. Diehl, Esquire Counsel for Defendant bas RON MOYER SERVICE, INC., IN THE COURT OF COMMON PLEAS OF PLAINTIFF CUMBERLAND COUNTY, PENNSYLVANIA V. M. L. COLLARE, INC., DEFENDANT NO. 07-0173 CIVIL ORDER OF COURT AND NOW, this 13th day of July, 2007, upon consideration of the information received from the attorney for the Plaintiff that the parties have come to an agreement in this matter, IT IS HEREBY ORDERED AND DIRCTED that the hearing in this matter is continued generally to allow the parties to finalize the settlement. David W DeLuce, Esquire -.,?abeth D. Snover, Esqu Counsel for Plaintiff X. raig A. Diehl, Esquire Counsel for Defendant bas A By the Court, 8li :Z t4d £ l -11 "IC LOOZ 1r' ; :111 :10