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LBO ENTBRPRISBS, INC.,
Pla,1ntitt
v.
JAMES RARAGIANNIS,
Detendant
JAMES RARAGIANNIS,
PlainHtt
v.
LEO ENTERPRISES, INC.
Defendant
. ,
I IN THE CQURT or COMMON PLEAS
I CUMaERLAND COUNTY, PENNSYLVANIA
I
I No. 96-421515
I
I
I civil Aotion - Law
I
~~~~~
I IN THE COURT OF COMMON PLEAS
I CUMBERLAND COUNTY, PENNSYLVANIA
I
t No. 96-4136
I
I
t civil Aotion - Law
t
CONSOLIDATBD OASBS
HOTION IN ',IHINB 01' LBO IIfTIRPRIIIBS. INO.
Plaintiff, Leo Enterprises, Ino., by and through its
oounsel, Keefer, Wood, Allen & Rahal, files this motion in limine
relative to any testJ.mony that would be given at a hearing on the
above matter. The reasons and legal support of the following
arguments are set forth in the accompanying brief. Plaintiff
seeks the motion in limin~ restricting the defendant from
introducing the following evidence:
1. Any parole evidence relative to and inconsistent with
the terms, conditions and payment that are set forth in the Bond
given by Hr. Karagiannis to Leo Enterprises, Inc., whioh forms
the basis of the confession of judgment claim by Leo Enterprises,
Ino.
lilAlIt I. AUIN
hi Q"''VIO I'A'iAI.
WILLIAM I NII.I.I", "'''
CtiAIU.I W "UIINDALl. U
"Oil"' L WUOON
IUGINI I Pt".N'~"'. "'''
""OMAI I. WOOD
';O'iN Ii INOI III
a..."" I '''kNCII
DONN. I WILDON
.""'0"0"1) OO"""NCI
.,111"''',,, .. .'Ott.1
"OI'''T n, CliU"C'i
InpulN L 13"01.
.. ICOTT ....r...."I"
",."..n ,. .NITH
CQN;.LD N. LIWII m
."IDOIT M WI"ITl..lY
AA"IN,J ."OTlil'"
.'UNO'" B LYNCH
KEEFER, WOOD, ALLEN & RAHAL
~IO W"LNUT STRUT
MAILING AOO'USS. p, 0, ao~ IIlUl3
HARRISaURG, PA. 1?108'IIUI3
1"5 No ',)'01IeI.1&
I.T..I.I'.IIO IN ",.
"ULL.. 1.1'1" AND MITIQI"
1"0)'1...1
MITlO.", H..r,,,, tlll"'''.
TI..Q...... ...ND WOOD
11'''''11171
S.ptemblr 5, 1996
WILLI..... H. WOOD
'~"ijIL Q, H~""T
Qr COlJNUI.
,~. e",1 ...'.0.0
ULI"HONllml 111"000
w"".,,'. DUlle' DI...L
255-8052
Lawrenc. E. Welker, Prothonotary
cumberland County Courthouse
1 Courthous. Bquar.
Carlisi., PA 17013
ReI Consolidated Actions
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Leo Enterprises, Inc. v. James Raraqiannis
C.C.P. cumberland
No, 96-4255 civil
James Raraqiannis v. Leo Enterprises, Inc.
C.C.P. Cumberland
No. 96-4136 civil
Dear Hr. Welkerl
Enclosed please find for filing in the above matter the
oriqi/lal and one (1) copy of the motion in limine of Leo
Enterprises, Inc. and proposed order, ftlong with the praecipe
listing the matter for srgument court. Upon docketing, I request
that you forward this matter to the attention of Rick Pierce,
Aosistant Court Administrator, in accordance with my telephone
conversation with him on September 17, 1996.
By copy of this letter, I am confirming with Rick that in
lieu of having oral argument solely on the petition to open
judgment, we would prefer to combine that issue along with the
two issues raised in the motion in limine, since the parties
believe that those matters would be dispositive of the petition
to open or a hearing on the same, depending upon the ruling of
the Court.
Please confirm that both the petition to open and our motion
in limine will be heard in argument court. We will file the
brief in support of the motion in limi~ in accordance with the
Local Rules.
Lawrlncl .. WIlklr, Prothonotary
Pa",1 :a
Slptl.blr 24, 1996
If you nlld .ddition.l inform.tion, pl.... do not hl,it.te
to contact .1.
Binc.lr.ly,
SLG/lIjn
!nclo.un.
COI Riok PillrO_, A..i.t.nt Court Admini.trator
Mary Koll.. Kennldy, !.quirl (w/lnole.)
Klm'I~, WOOD, ALLIN , RAHAL
J:A.t.___ ~~
s:;;;rl'l~ Grose
By
(w/lnol..)
, '
"
"
, ,
"
".
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, "
, ,
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"
v.
I IN THE COURT OF COMMON PLEAS
I CUMBERLAND COUNTY, PENNSYLVANIA
I
, No. 915-42!l!l
I
,
, civil Aotion - Law
,
LBO ENTBRPRISES, INO.,
Plaintiff
JAMES RARAGIANNIS,
Cefendene
8'l'IIUU'l'IOlf
The undersigned hereby agree that plaintiff, Leo
Enterpri.e., Ino" may file an Amended Response to RUle to Show
Cau.e and Answer to Cefendant's Petition to opan or strike the
Cunfe..ed Judgment, adding as new matter the statute of Frauds.
II
ary
KaLLA & KENNEDY
1104 Fernwood Avenue
Camp Hill, PA 17011
By
iJ!~' L': dr~~' ./1____
KEEFER, WOOD, ALLEN' RAHAL
210 Walnut street
P.O. Box 11963
Harrisburg, PA 17108-1963
Dated, September I~ , 1996
Datedl september~, 19915
Approved
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3. Admitted in part and denied in part. It i. admitted
that plaintiff'a oomplaint in confession of judgment does not
refer to an Agreement of Sale that previously existed between the
parties, It is specifically denied that the obligations oreated
by the Agreement of Sale continued after the deed, mortgage and
bond were exchanged, and further denied that the defendant has
made all payments due to the plaintiff, either under the bond or
the Agreement of Sale. Since no exhibits were attached to the
petition served on the plaintiff, it can neith~r admit nor deny
that a true and correct copy of the Agreement of Sale was
attached to the petition ae Exhibit "B."
By way of further anewer, plaintiff reeponds that the
Agreement of Sale referred to by the defendant in this matter is
not at issue. The confeAeion of judgment was entered not on the
breach of th~ Agreement of Sale, but on the bond attached to the
complaint for confeesion of judgment. Therefore, whether or not
the defendant complied with the Agreement of Sale is irrelevant
to this action.
4. Denied. It is specifically denied that the Agreement
of Sale has any relevancy to the confeseion of judgment entered
under the bond attached to the plaintiff'e complaint for
confession of judgment. Clearly, defendant has defaulted under
the bond, which terma were not and cannot be altered by a
previously executed Agreement of Sale. Further, the Agreement of
-2-
Sale reterred to by the detendant indicate. that payment. would
not commence until fitty (~O) days atter closing, and aloaing did
not oocur until February 24, 1982. AccQrdingly, any payments
made by detendant prior to that date could not have been made in
accordance with either the Agreement ot Sale ~ the bond.
~. Denied. It is speciticallY denied that detendant has
paid to plaintitt all monies due and owinq tor the purchase ot
the property reterenced in the Agreement ot Bale. More
importantly, it is specitically denied that the detendant has
paid the plaintitt all monies due under the terms ot the bond.
6. Denied. As stated in the complaint tor contession ot
judgment, detendant has not made all payments under the terms ot
the bond to which the confession of judgment relates.
Accordingly, the judgment should stand.
NIW MATTIR
7. Defendant asserts that he has complied with all of the
te~ms and conditions ot the Agreement of Bale and made all.
payments under the Agreement of Bale, which was executed prior to
the mortgage and bond associated with the sale of the subject
property. However, paragraph 5 (installment payments) ot the
Agreement ot Bale provides that the first such monthly
installment shall "be due and payable tifty (50) days after the
date ot Settlement and eaoh subsequent installment shall be due
-3-
and payable at one (1) month intervals thereatter." Settlement
did not occur until February 24/ 1982. Theretore, any payment.
made by defendant to the plaintitt prior to February 24/ 1982
could not have been made in satistaction ot any installment
payment. under the Agreement ot Sale or th~ bond.
8. The parties expressly set torth their intentions in a
written agreement/ the bond, and which is olear and unambiguous
on its tace. Accordingly, the court must look to the docum.nt
itselt and give ettect to the plain, ordinary and accepted
meaning ot the words used in interpreting the intention ot the
pertie., and cannot hear parole evidence nor rewrite the
contract.
9. Further, the parole evidence rule precludes a court
trom implying terms ditterent than those which the partie. have
expressly set torth in their written agreement,
10. The terms ot the bond are clear and unambiguous. The
payment amounts and the duration ot the payments are expressly
set torth in clear and unambiguous terms. Any att.empts to
introduce evidence contrary to the terms set torth in the bond
are barred by the parole evidence rule.
11. Detendant/s claims are barred by the statute ot trauds.
12. To the extent that the terms ot the Agreement ot Bale
are inconsistent with the bond, the terms ot the bond prevail,
since it wa. executed subsequent to the Agreement ot Bale and it
-4-
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The underaiqned, Stephen L. Grose, hereby verities and
.tatea that I
1. He is one ot the attorneys tor Leo Enterpri.e., Inc.,
2. He is authorized to make this Veritication on it.
behalt ,
3. Tho tacts set torth in the toregoing amended response
are known to him and not neoessarily to his olients,
4. The taots set torth in the toregoing amended response
are true and oorreot to the best ot his knowledge, intormation,
and beliet 1 and
5. He is aware that talse statements herein are made
subject to the penalties ot 18 Pa.C.S. S 4904, relating to
unsworn talsitioation to authorities.
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step e L. Grose, Esqufre
Datede September 10, 1996
L~O E~T~RPRISES, INO"
Plaintiff
I~ THE COURT OF COMMON PLEAS '.
cUMBERLAND COUNTY, PENNSYLVANIA
v.
No,
-l1111iS
JAMES l<ARAaIANNIS,
Defendant
COMPLAINT FOR CONFESSION OF JUDGMENT
'.......'. '.
NOW COMES Plaintiff, LEO ENTERPRISES, INe" by its
atto~neys, Keefer, Wood, Allen & Rahal, and files the tollowinq
complaint for Conf~5sion of JUdgment, averring as followsl
1. Plaintiff is LEO ENTERPRISES, INC., a pennsylvania
business oorporation with offices located at 4076 Carlisle Pike,
Hampden Township, Cumberland County, Pennsylvania.
2. Defendant is JAMES KARAGIANNIS, an adult residinq in
Cumberland County, Pennsylvania.
J. On February 24, 1982, Defendant executed a written Bond
in favor of Plaintiff, II true and correct copy of which is
attached hereto as Exhibit "A" and incorporated herein by this
reference.
4. In or about January 1992, Plaintiff and Defendant
agreed upon an amendment to the repayment terms of the Bond,
pursuant to which amendment Plaintiff waived the requirement of a
balloon payment on March 1, 1992. Defendant agreed to continue
to make monthly payments until the Bond was paid in full.
5. Plaintiff has not assigned the Bond.
EXHIBIT
A
ALl,lto~rt.IHffIlHAlIONAL
e, Jud~ent has not been entered on the Bond in any
jurisdiction.
7. Defendant made principal and interest payments of
$3,694.13 per month from April 1, 1982 through May 1, 1996
(170 payments) .
8. On or about July 15, 1996, Plaintiff reoeived a oheck
in the amount of $3,607,76, which amount was credited to
Defendant's account as a partial payment of his June 1, 1996
obligation. Upon application of the partial payment, a pril1cipal
balance of $31,782.97 remains due and owing. Additionally,
interest of $291.34 accrued during the month of June (payable
July 1, 1996) and remains unpaid, as well as the July 1, 1996
principal payment ani subsequent principal and interest payments.
9. Defendant failed and continues to fail to make the
balance of the June 1, 1996 payment ~nd the remaining payments
under the Bond and is in default under the Bond.
10. The principal balance that remains unpaid under the
Bond ($31,782.97) is accelerated and immediately due and payable
as a result of Defendant's default.
11. All interest accrued but unpaid under the Bond is
immediately due and payable as a result of Defendant's default.
-2-
Y!l:RIP'ICATtON
The under.i9ned, BONNIE M. LEO, hereby ve~itiea and atate.
thatl
1. She is President of Leo Ent.rp~i..., Inc., Plaintiff
hue in,
2. She is authori~ed to make this Verificaticn on its
behalf f
J, The facts set forth in the toregoing Complaint are true
and correct to the beat of her knowledge, information and b~lieff
and
4. She is aware that false statements herein are made
subject to the penalties of La Pa. C.S. 5 4904, relating to
unsworn falsification to authorities.
~1f'L~~
Datedl JU1Y~ 1996
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TillS AGIUIlI!MI!lN'1', made th1& $ day of May, 1981, by and between
LI!lO EN'1'BRPRISES, INC., a corporat:ion organhed and exist:in9 under the
lAWS of the conunonwealth of PennsylvAnia (heuinafter referred to AI
,
"Sellltr") and Jl\Mflfl KTI',^OI1\NNIB, un adult l.ndividual (hereinafter
reCerrod to AS "Buyer").'
WITN~,Afll':'I'1I1
WlIBRE1\B, tho RlI.Ll.l'Ir ~ll tho owner of certain real property and
.'
improvements knOlm and numbered os the fHerra Madre Saloon, 4035
Market, StrdClt, lIampden Township, cumberland County, Pennlylvania
(hereinafter referred to ftS the "Promises") I and
WHBREAS, the Beller is tho licensee under Restaurant Liquor
Liaenee No. 20227 issued by the Pennsylvania Liquor Control Board
and operates a bar and restaurant faoility on the Premises under
said lioense, and
WHERE1\S, the nuyer wishes to purchase the Premises, together
with all fixtures, appliances, equipment and staak in trade situate
on the Premises, and wishes to have trnns ferreu to him all rights
and duties under the existing Restaurant Liquor License issued to
Seller.
NOW, TllflREFORE, in conaidoration of tho mutual coven"nts
contained herein, and intending to be logally bound, the parties
hereto agree as Collowal
1. SM.E AND OELJV~,RV.
The Seller herehy IlCJreos to soll 1\110 doUver to Buyer, and
Buyer her'Jby IIl)coea b" aoco(lt from Sullor, tha aforoaaid bar ftnd
restaurant facility, inoluding all fixturoll, appliances, equipment
and stock in trade which are situate on the Premises and identified
on the inventory attached hereto na I':xhibit "1\", Seller further
- "...
. _ till
.9r... to tlk. Iny Ind .-11 1101:10/1 nltr.luuory to .U.ol: I tk'ln.f.r
to the Buyer of all ri9hl:II allll dutiell und"r Pcnnllylvania Relltaurant
Liquor Lioen.. No. 20227.
2. PURCIIASB PRI~.
Upon the terms and conditions horeinatter IItated, Buyer a9ree.
to pay to Soller the totol I'urllhollu Pdoe of Four lIundred Twenty-five
Thousand Dollars ($425,000) in oOl1l1idor/ltion of the lIale and dalivery
of the aforesaid bar and rostllurnnt facility, lIaid oonaideration to
be allocal:ed all folloWlI1
(a) The eUll\ of 'l'Wunty-tlvo 'l'houllal\d Dollars ($25,000)
for the fixturoe, appliancos, oquipmont and IItock in
trade identified on tho invol1tory attaohed hereto al
Exhibit "A",
(b) The sum of 'rwenty-two Thousand Five Hundred
Dollarll ($22,500) tor the land upon whioh the bar and
relltaurant facility is 81tU/ltol and
(c) The lIum o.~ 1'hroo lIund,:ed SoventY-lIeven Thousand
rl\114 f.u/luut.1 rJ.:J.la~oj
"3'7 "".). '
'.~ , , .Juu .t.ur \....a;;,:
;'uH...,b'l'll whiel.
houlel the bar and rostllurant facility.
3. TERMS OF PAYMENT.
'1'he total Purchase Price of Pour lIundred Twenty-five Thousand
Dollars ($425,000) shall be paid by lJuyor to Seller IlB follows I
$10,000, due prior to the execution of thill
Agreement, which amount is non-refund-
able and shall sorve as liquidated
damages in the event of Buyer's
default hereunder, receipt of which ie
hereby aoknowledgcd
$10,000.00
,
$70,000, duo on or befn~a t~o datu of Settle-
mont
$70,000.00
$20,000, together with inte~cBt of 10\ per
"nnum duo in a single payment within
ono YOlll:' ottOI:' the <laLo of Settlemont
$20,000.00
-2-
, '
"
"
. .
. ...
'>>..,000, du. in mo"~hly In.t~llm.nk. ..
hereinafter provided
'I'O'I'^L i'UIlCII^BE i'InCE
$3~I$.OOO.OO
$425,000.00
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4. !!!:!.Ml'~BUM i'^YMEN'I',
The unpaid principal amount of Twenty Thousand Dollars 1$20,000),
together with interest thereon at the rate 'of ten percent (10') per
annum, ehall be paid to ~eller in a single payment within one year
aftllr the date of Bettlemont. 'J'ho pr inoipa 1 amount, together with
aoorued interost, may be pre-paid by Huyer at any time without penalty.
5. INB'r^Ll.MEN'I' 1'/\ YMI~N't'B.
The unpaid principal amount of Thr.ee Hundred 'rwenty-five Thousand
Dollars 1$325,000), together with intereat at the rate of eleven
peroent (lU) per annum on the unpaid balanoe, or in the event that
tax-free mortgage financing (lLtI] ho nrran'Jed through an appropriate
industrial development iluthodty, Interest at the rate of eight and
one-half peroent (0 1/2\) per annum, ahal1 be poid in one hundred and
nineteen (119) equal monthly inn~nl1monts cnlcu1ated on the basis of
a tlJ:taen (15) yeLlr a,lIort1zl.tion period anu in Olle (11 final installment
equal to the entire unpaid principal and interest balonce. The first
such monthly installment shall be due nnd payable fifty (50) days after
the date of Settlement find ei'lch subsequent instollment shall be due and
payable at one month intervn Is theroflfter. llllyer acknowledges that the
installment financing providod for henHlnder Is for a term of ten (10)
years and that any principal balance which remains unpaid at the expir-
ation of the ten (to) year period, together with any accrued interest,
muet be paid in ful.l "ith tile finnl infltll1lrnent hereinobove provided,
notw1thL ('anding the fuct thut tho t nal:nl Iment payment amounts are other-
wine aa'culnted on the basis of a fifteen (15) year amorti~ation period.
Tho princlplIl ,~fllO\lnt, to<joLllor wJ.lli <,cc.oIcd interest, may be pre-paid
by Buyer lit any <Ime wIthout pannlty.
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Buyer Ihall exeoute in Sel,orls favor guch .eourity aqreem.nt.
or other doouments, inoluding but not limited to, an in.tallment
note or notel, a purch.so money mortgage and Uniform commeroial
Code finanoing .tatemlnts, as Sellsr'. attornoy may realonably
detsrmine are neoessary or advisable to sodure Seller'. right to
payment hereunder. All suoh documents shall evidenoe Seller'. fir.t
lien gecurity interest in the enoumborod allot. Moreover, Buyer
aoknowledgos that upon any defoult by Buyer undor the term. of thi.
Agreement all right, tiUe and interest in, to and under Restaurant
Liquor Lioense No. 20227 ahall forthwith t'evert to Seller and Seller
ohall have the right to make immediate applioation for re-tranlfer
of the Lioonse to Seller. Buyer hereby oppointo Heath L. Allen,
~oquire, 00 his true and lawful attornoy, to do all lawful thingl in
his stead, for the purpose of ro-transf.erring the oaid Restaurant
Liquor Lioense to Seller upon any default by Buyer.
7 . ~'l''l'LEMENT.
SetUement hereUllder II,al! take ~looa wit:hlll forty-eigi,t (48) hours
after the reoeipt of approval for tranlfor of Vennoylvania Reotaurant
Liquor Lioense No. 20227 to Buyer, All deed I and leourity doouments
required hereunder shall be executed by the partiel at Settlement and
shall thereupon be recorded and/or filed immediately. In the event that
the Pennsylvania Liquor Control Board refuleEl to transfer the License
to Buyer, this Agreement, shall be null nnd void and Seller shall be
Gll\titled to retain the deposit monuy of 'fen ThoU8and Dollare ($10,000)
ao liquidated damages. POlsession of the Vremise8 shall be given to
Buye~ at the time of Settlemont.
8. !,RANSFER OF TITI.E.
Titlll to t:he Vremises Ihall bo uonveyed to Buyer at Settlem.nt.
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9. ~I\ItMN'1'Il'lS 01" 'I'ITr.l!l.
Titlo is to be a good and marketnble tue
ale.~ f~om all lieno. but subject to building
,
simple titl. free and
,.Ii:',.' '
restrictions, zoning
regulations, easements, rightn-of-way (inaluding but not limited to
all highway rights-ot-way), reservations and restrictions o~ record
or visible on the Premises at any timo up ~o and inoluding the time
ot Bettlement. Til:1e ahall be certiHnbla by Huyer's attorney, or
, '11
insurable at regular rllte/l by 0 I~(jputoble title insuranoe company
without exoeptions objectionoble to Huyer. Beller shall convey by
general warranty deed subject to the provisions ot this Agreement.
Duyer shall have sixty (60) days from this date to examine title
to the property to be conveyed, If, within said period, Duyer does
not notity Seller in writing of any defects in said title, it shall
be conolusively [l1"OUlUnecl thllt thllre lire no such defects and that the
title meete the re')uiremontll of thl.s Paragraph 9. In case material
defects are, within /laid poriod, found to oxist in thut title, and
are so reported to Seller I then, if such <Ie fects are not cured by the
Seller wl..:hin si:,ty \60; dftYH uE the notil.:a, this Agreement shall
bocome null, and void ond thero sholl be no further liability upon
the Seller or Huyer, whereupon Sollor aholl return nuyer'~ deposit
payment forthwith,
10. WARMN'l'IES OF Fl'nmSS.
Except os otherwise specifically provided for herein, Seller makes
no express or implied worrllntie/l with rOflpect to the physical condition
or possible Uges of the 9ubject property or any improvements located
thereon. Buyer acknowlcdgcR that improvements are being sold on Sn
"119 is" basta.
11. INSURANCE.
Until the dote of SottllilJllunl:, Seller shall carry, at its own
expense, fire insurnnce on the PremiseR with extended coverage endorse-
ments. In the event that finy imprOVement is dostroyed or damaged by
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.
,I
f1~. O~ o~h.r aaaualty ~rior to Hettlem.nt, all !n.u~anoe prooeeda
will be I:lUt 1I01e property of Bollor. If IIl1id insurance ~~6"oeeda are
I'~~'I
reoeived by Beller on or bofore the date of Settlement, ~h'~ total
Purchase Vricd shall be reduced by the amount of such prooeeds. In
the event that said insuronce proceoda aro not received by Beller on
or before the date of Settlement, Soller s~all assign its right to
oulloot soid prooeedfl to Iluyur llnd the ul110unt of the total l'u~cJ/Slle
I'rioe shall remaln all heruinnhovo stated. In either event, there
shall be no duty on the Sollar to restoro, repair or rebuild the
improvements or any appurtenancefl.
Bubsequent to the date of Settlement, nuyer shall oarry, at his
own expense, fire inauranoe on the Vremises with extended coverage
endorsements and naming Sollor as co-insured. In the event that any
improvement is destroyed or. dllr"lllJed by fire or other casualty sub-
sequent to the date of Settlement, the parties shall agree as to
whether the impr.ovomonts shall bo rcstored or repaired by UBe of the
insuranoe prooeeds or whether the insurance prooeeds shall be applied
co the red.Jotiun of tl..1 ullpc.id principal and i.nterest balanc'.l due
hereunder.. Seller. allnll not be required to contribute any funds
whatsoever in the repn ir or restorat ion of damaged improvements.
12. INDEMNIFICATION OF SELLlm.
Buyer will indemnify and hold harmless the Seller from any debts,
liabilities, liens, claims, taxes, oncumbrcncBs, obligations or suits
of any kind imposed upon Seller by reason of, based upon, arising
out of or oaused by any act, omission or other thi~g ooourring at any
time after the date of Settlement if caused by any act or omission of
Buyer in connection wIth hia \lIle of the Premises.
13.
TRANSFER TlIXES.
"
Real estate transfer taxes (alate and local) will be divided
equally between nuyer and Seller, 1\ to be paid by Buyer and l' to
be paid by Seller.
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"
.',
14 . ^PJUSTMBNTS /\'I' SI3'I''l'LI!:MEN'I'.
n.al .etate taxee, water, sowor ronta, electric and ,V-., if any,
.hall ba appcrt:ioned to the date of Bettlement. Buyer .hall be nepon-
.ible for all rual estate taxes, wnter, seWsr renta, electric and gaa
chargee incurred subaequent to the date of Settlement. ,
15. PEFAULT.
upon default at the paymont ot any Bum ot principal or intereet
herein agreed to be paid tor tho Bpaoe ot thirty (30) days atter the
eame shall beoome due and payable, or upon rnoeipt at notice from the
Penneylvanla Liquor control Board ot a BUBpeneion or revocation (or
intent to suspend or revoke) ot ReBtaurant Liquor License No. 20227
for the space ot thirty (30) days or longer, or upon the tiling ot a
petition in bankruptoy pursuant to provisions ot the Bankruptcy Code
ot 1979, or upon breaoh of any other term ot this Agreement, the whole
of the unpaid principal sum, together with interest, oosts and other
charges requirsd to be paid hereunder shall, at the option ot Seller,
become immediately due and payable. Upon suoh detault, the Buyer hereby
authurilZBs and elnt'owe!.s ell~' att.vl."ney 'Jf Iln~ oourt: ot record 1:0 appear
tor him and oonfess judgment for the whole of suoh sum, with a tsn
percent (lOt) attorney's commiBsion or fees, hareby waiving the right
ot exemption and inquisition BO far ftS the property herein described.
In addition to other remedies available to Seller hereunder, upon
default by Buyer, Seller may declare this Agreement terminated, null and
void and prooeed by action of. foreclosure for recovery of the Premises
herein oonveyed.
16. BROKERS AND AGENTS,
Ouyer and Beller covenallt to HIIVl/ I:ho other party harmleBe from
any olaim to toe or commission by /IllY real cstate brokers or agents
dealt with in oonnection with thiB Bo1.0, due or to be due by rea.on
of acts ot Buyer or Seller, as the caRe may be.
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17.
COMPLETE UNPEnSTANOINQ.
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Th". Aguemenlt aan....n. the entin unden~.nd"n, bet",.e" "tih. I"
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partiell hereto, and lIuperoedos ISny prior written or oral ~reement.
" ,
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between them uapeotinq the written subjeot mettflr, inolu(Hnq l)iJt not
limited to the written agreement doted Maroh 17, 1981. There 'are
,no rep~ellentationll, aqreementll, arrangementa or underlltan'~ge,.oral
or written, between and among the parties hereto relatin~o the
.ubjeot matter ot thill instrument whioh are not tully expreesed herein.
,
18. HBInS AND ADMINIS'l'IWl'OnS.
All rightll given in this instrument to Beller and Duyer shftll
aoorue to their hairs, exeoutors, administratora, auooesllore and a..igne.
19. CONSTRUCTION.
Thia Agreement shall be interpreted an~ oonatrued in aooordanoe
with the lawa at the commonwealth of Pennsylvania.
20. RECOnDING.
Thia A9reement mBY be recorded in l:he Offioe ot the Reoorder ot
Deedll ot Cumberland County, Pennsylvania.
~l. RECEIPT OF COPY.
--
All piArtiea htJratr.> aoknowledge r(,oeipt ot a tully Iaxeou'l:ed oopy
ot thill Agreement.
22. INTENTION TO DE nOUND.
It ia the intention of each of the partiea hereto to be legally
bOlmd by the terms of this Agreement and to bind their exeoutors,
administrators, heirs, sucoessors and Rsaigns.
IN WITNESS WHEREOF, the partiea hereto have set their handll and
seals the day and yonr first above written,
ATTEST I
I
I.I;:O EN'l'ERPRISBS, INC.
/~'1~r;~a ry
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Pr.eiden\:
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LEO ENTERPRISES, INC" I IN THE COURT OF COMMON PLEAS
I CVHBERLAND COUNTY, PENNSYLVANIA
Plaintiff I
v, I No. 96-42~~
t
JAMES KARAGIANNIS, I
I civil Aotion - Law
Defendant I
RISPONSI TO RULI TO SHOW CAUSI AND
ANSWla TO DefENDANT'S PETITION
~R STRI~B THe OONfESSED JUDGMENT
AND NOW, comes the plaintiff, Leo Enterprises, Inc., by and
through its ~ttorneys, Keefer, Wood, Allen' Rahal, and responds
to the petition to open or strike the confessed judgment,
averring as followSI
1. Admitted. However, since no Exhibit ijAij was attached
to the petition to open or strike the confessed judgment served
on the plaintiff, it can neither admit nor deny that a true and
correct copy of the complaint in confession of judgment with
exhibits was attached as Exhibit "A to the petition.ij
2. Admitted.
3. Admitted in part and denied in part. It is admitted
that plaintiff'S complaint in confession of jUdgment does not
refer to an Agreement of Sale that previously existed between the
~artieB. It is specifically denied that the obligations created
by the Agreement of Sale continued after the deed, mortgage and
bond were exchanged, and further denied that the defendant has
made all payments due to the plaintiff, either under the bond or
~
the Agreement of Bale, Binoe no exhibit. were attaohed to the
petition served on the plaintiff, it oftn neither admit nor deny
that a true and correct oopy of the Agreement of Sale wae
attaohed to the petition ae Exhibit "B."
By way of further answer, plaintiff responds that the
Agresment of Sale referred to by the defendant in this matter i.
not at issue. The confession of judgment was entered not on the
br.eaoh of the Agreement of Saloa, but on the bond attaohed to the
oomplaint for oonfession of judgment. Therefore, whether or not
the defendant complied with the Agreement of Sale is irrelevant
to thle IIction.
4. Denied. It is specifically denied that the Agreement
of Bale has any relevancy to the oonfession of judgment entered
under the bond attached to the plaintiff's complaint for
oonfession of judgment. Clearly, defendant has defaulted under
the bond, which terms were lIot and cannot be altered by a
previously exeouted Agreement of Sale. Further, the Agreement of
Sale referred to by the defendant indicates that paymenta would
not commence until fifty (50) days after closing, and closing did
not ocour until February 24, 1982. Accordingly, any payments
made by defendant prior to that date could not have been made in
aocordllnc~ with either the Agreement of Sale Q~ the bond.
5. Denied. It is specificallY denied that defendant has
paid to plaintiff all monieD due and owing for the purchase Of
-2-
the property rererenced ~n the Agreement or Sala. More
importantlY, it i. .pecirically denied that the derendant ha.
paid the plaintirt all monie. due under the term. ot the bond.
6. Denied. As stated in the complaint tor conte.sion ot
jUdgment, de tend ant has not made all payments under the term. ct
the bond to which the contession ot judgment relates.
Accordingly, the judgment Mhould etand.
HZ. MATTIR
7. Detendant asserts that he has complied with allot the
term. and conditions ot the Agreement ot Sale and made all
payments under the Agreement ot Sale, which was exeouted prior to
the mortgage and bond aesociated with the sale ot the subject
prcperty. However, paragraph 5 (installment payments) ot the
Agreement ot Sale provides that the tirst such monthly
installment shall "be due and payable titty (50) days atter the
date ot Settlement ~nd each subsequent installment shall be due
and payable at one (1) month intervals thereatter." Settlement
did not occur until February 24, 1982. Therefore, any payments
made by defendant to the plaintitt prior to February 24, 1982
could not have been made in satistaution ot any installment
payments under the Agreement ot Sale or the bond.
8. The parties expressly set torth their intentions in a
written agreement, the bond, and which is olear and unambiguou.
-3-
on it. tace. Aoco~dingly, the cou~t mu.t look to the document
it.elt and give etteot to the plain, o~dina~y and accepted
meaning ot the wo~d. u.ed in interp~eting the intention ot tha
pa~tie., and cannot hea~ pa~ole evidence no~ ~ewrite the
contract.
9. Furthe~, the parole evidenoe rule preolude. a court
trom implying terms ditterent than those which the parties have
expressly set torth in their written agreement.
10. The terms ot the bond are clear and unambiguous. The
payment amounts and the duration at the payments are expressly
set torth in clear and unombiguous terms. Any attempts to
introduce evidence contrary to the terms set torth in the bond
are barred by the parole evidence rule.
11. To the extent that detendant seek. to introduoe parole
evidenoe regarding the terms at the bond, ~ny testimony regarding
statements made by Hr. Altred Leo, oontrary to his interest or
that at Leo Enterprises, Ino., is barred by the Deadman's
statute.
12. To the extent that the terms at the Agreement ot Sale
are inoonsistent with the bond, the terms ot the bond prevail,
since it was executed subsequent to the Agreement ot Sale and it
is the document that oontains the contossion ot judgment claUse
upon which judgment waR oontessed.
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6, Allor rmouublo hlv06tlguthlll, l)elimdullll~ without sul1l~lellt kUllwlodso to udmit
or dOllY the uvenlleuts cOlllulncd luthl~ pUrAgrullh, To the elltllntlll'CNllon6111~ required, Slllllllls
dOlllod, Striclllrollfdcmuullctl,"trlul,
7, Dculctlll6 SHIICl\' Whllllthc uwnncllls IIfthl~ lIul'IIgl'llph UI'C Ildmltted, I>climtluut,
by way ofll1l1hcI' IlIlSWer, nvcrN Ihlll. prillclPll1 nlld hllcl'cst pnymcllts of$3,(I'l.j, 1311cr mouth
heguulll July of I'lH IlIlId cOlltlnned thmllgh MIlY I, I'I'ICJ, ^ lllle 111111 corrcct copy ofthc
Uml.lJ111.11tlon schedulc uNed hy Defclllllllltls lIunched herclolllltlmllrkcd liS I'",hlhll "n," Strict
111'01.11' dcmAndcd Utlrilll,
H, Thc IlWrmellls Oflhls pllrngl'llph lire sllcclllcnlly dellled, '11lcreollor durillg the
month of July l'l'l(l, Delclldllllltcndercd u check luthc IInllllnllof $3,607, 76 which WA~ the
bAIAncll due uuder the AgrccmclII uf Snlc nllnchcd hercIll us Ellhlblt "A" SlIict 111'001' demAnded
nttriul,
9, It 15 spccltlCAlly dell leu thAt Defendlllll has counnlucd Any fullure or defAult. Strict
1)1'001' delllllndcd nllliA\.
10, 1115 SllccltlCAlly deulcd Ihntthere Is Any bAluncc due 10 Jlluintlll'under Ihe bond or
otherwise, Slrlct proof dClllnlldcd nttrlll!.
II, It Is Nllcclllcally dcnied lhcre has bccn Any defAult by DcleudAlllor unpuld hllerc:st
accrued and owlug, It Is Iill1her dcnlcd thnlthcre ure IIny unpAid iutereNtllcclUcd and owlnl!
uuder the boud, S,lict proof dcmAndcd Illlrilll,
12, '111e uwrlllCllh oflhis pUrAgrllph Are spccltlcAlly denied, SlIictllrllofdelllandcd ut
trial,
LEO ENTBRPRISES, INC.,
Plllintirf
Defendant
I IN THE COURT OF COKMON PLEAS
I CUMBERLAND COUNT~, PENNSYLVANIA
I
I
I No, ,It, 'IJn~-199l\
I
I
I
I
v.
JAMBS KARAOIANNIS,
COMPLAINT FOR CONFESSION OF JUDGMENT
NOW COMES Plaintiff, LEO ENTERPRISES, INC., by its
attorneys, Keefer, Wood, Allen & Rahal, and files the following
Complaint for Confession of Judgment, averring as followSI
1. plaintiff is LEO ~NTERPRIaES, INC., a Pennsylvania
business oorporation with offices located at 4076 Carlisle Pike,
Hampden Township, Cumberland county, Pennsylvania.
2. Defendant is JAMES KARAGIANNIS, an adult residing in
Cumberland County, Pennsylvania.
3. On February 24, 1982, Defendant executed a written Bond
in favor of Plaintiff, a true and correct copy of which is
attached hereto as Exhib.it "A" and incorporated herein by this
reference.
4. In or about January 1992, Plaintiff and Defendant
agreed upon an amendment to the repayment terms of the Bond,
pursuant to which amendment Plaintiff waived the requirement of a
balloon payment on March 1, 1992. Defendant agreed to continue
to make monthly payments until the Bond was paid in full.
5. Plaintiff has not assigned the Bond.
6. JUdgment has not been entered on the Bond in any
jurisdiction.
7. Defendant made prinoipal and interest payment. of
$3,694.13 per month from April 1, 1982 through May 1, 1996
(170 payments) .
B. On or about July 15, 1996, Plaintiff reoeived a oheck
in the amount of $3,607.76, which amount was credited to
Defendant's account as a partial payment of his June 1, 1996
obligation. Upon application of tha partial payment, a prinoipal
balanoe of $31,782.97 remains due and owing. Additionally,
interest of $291.34 accrued during the month of June (payable
July 1, 1996) and remains unpaid, as well as the July 1, 1996
prinoipal payment and subscquant principal and interest payments,
9. Defendant failed and continues to fail to make the
balance of the June 1, 1996 payment and the remaining payments
under the Bond and is in default under the Bond.
10. The principal balance that remains unpaid under the
Bond ($31,782.97) is accelerated and immediately due and payable
as a result of Defendant's default.
11. All interest accrued but unpaid under the Bond is
immediately due and payable as a result of Defendant's default.
-2-
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1'1 . IQIfO"NO ....~,,' '''I'~ ~..,..
~I..I, HAU UGA\. umlU CO.,
Ill' "'II U, tftll.A.bUttfl,., 'A, "II'
"""'Iaa'f.'~~mf$
rlfAt JI\IIE~ MIIMI^NtII~. on .oJ"lt l,,,livld..l
(II"""u'''' ClJllflJ ,It, tJbUtor
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LEO EN'rl:ml)IHSt::t:i, INC., a Punf1l1ylvllnla buuil1lHU curporutLol1, IIUcr;IiIluor by
InQr~Qr to EQ9htf4d, Inc.
0..,,.,,..,,,,, IJdU'lJ ,It,. OMI,,,, ).It th. 'um uf 11hruI! lhmdred 'fwonty..tl"lI 'l'houland
Doll... ($125,0001, toquth.. with lnt....t o. h...inett.. p.ovlded,
IUlAlfNl m.l}""~ uf ,It. /',.,"11 ,HII'" 11/.''''''''''''' 'II'" /1IIt4' '11 lit, "",1 (JI,/",,.. 1 tll 11"",1"
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under at'rI tor. a tttrm ot. tttl1 (10) yuarB and thdt. .lIlY princip41 balance
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together wLth any a~cruod intt!rQ~t, m\Jst b~ pald in full wLth the fLnal
installment huruLnabovd provldud,
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LEO ENTERPRISES, INC"
PLAINTIFF
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PENNSYLVANIA
VB
JAMES KARAGIANNIS,
DEFENDANT NO. 911-4255
. - ~ . . . . , . . . . . . . . . , . . . . . , . . . . . ,
JAMES KARAGIANNIS, IN THE COURT OF COMMON PLEAS
PLAINTIFF, CUMBERLAND COUNTY, PENNSYLVANIA
va
LEO ENTERPRISES, INr."
DEFENDANT NO. 96-41311
DEPOSITION OFI WILLIAM c. KOLLAS
TAKEN BYI PLAINTIFF/DEFENDANT LEO
ENTERPRISES, INC,
BEFOREI DONNA J. FOX, REPORTER
NOTARY PUBLIC
DATE I MARCH 12, 1997, 11125 A,M.
PLACE I KEEFER, WOOD, ALLEN & RAHAL
210 WALNUT STREET
HARRISBURG, PENNSYLVANIA
,
APPEARANCES I
KEEFER, WOOD, ALLEN & RAHAL
BYI STEPHEN L, GROSE, ESQUIRE
FOR - PLAINTIFF/DEFENDANT LEO ENTERPRISES INC.
KaLLAS AND KENNEDY
BYI WILLIAM C. KOLLAS, ESQUIRE, ESQUIRE
FOR - DEFENDANT/PLAINTIFF KARAGIANNIS
ALSO PRESENTI
BONNIE LEO
25 -.- GIIGI" . '-0"11. ,n'O"TINQ II "';'IC:(, 2"08 ,,~"" DR !SUITE. HflG, "... I111Q 717.e...,eOI"" IIIOO'Uihltl77
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We're talking nbout the installment payments,
whioh is the $325,000 figure. It says that the first such
monthly installment shall be due and payable 50 days after
the date of settlement.
^
Correct.
Q In your mind's eye, when WIlS settlement under
this agreemen t?
Before you answer that, let's go back and look
at paragraph 7 which defines settlement. It's on page 4.
A In my mind's eye, and this is looking at it
today and looking back over what transpired, settlement took
place within 48 hours after transfer of the liquor license.
The liquor license transferred on July 29th, 1981, which you
are required to do normally under those circumstances to
transfer the liquor license. once you get the approval of
the Liquor control Board, it's taken inventory, submit that
inventory to the Liquor Control Board, which we didn't do in
this casel submit the old license and some cards that are at
the liquor store that enable you to buy at a discount to the
Liquor Boardl and then the Liquor Board after receiving this
gives you a license. In the meantime you have temporary
authority. And I think that all of that was accomplished on
or about July 31st.
Q In your practice does settlement usually occur
whenever there's an exchange of the deed and the mortgage
-. OllGlR a LORI" ,,(PORTING sr"VICE: HOD P""K on. lUlU I. HIG, "" 17110 711.I5,u.II50lJ OR ,,800'222'''&77-.
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and the warrant?
2 A In a liquor lioense, when you have a
3 settlement of this nature, there's no question that once the
4 liquor license transfers to Mr. Kllragillnnis, Mr. Karngillnnie
5 is the owner of the liquor license.
6
7
Q
A
Of the liquor license itself, that's correct.
Correct. And that took place on July 31st or
8 thereabouts.
9 with respect to the transfer of the real
10 estate in question, there's no question that the deed that I
II received was dated February 24th, I think 1982, as was the
12 purchase money mortgage.
.
13
Q
In fact, there were discussions between you
14 and Gary over the period of time from, I'm going to say,
15 June or July of '81 through February of '82 regarding the
16 outstanding issue with the IDA? In other words, you were
17 waiting to try to get financing through the IDA?
18
19
A
Correct.
Q
I'm going to show you what's been marked as
20 Bayuk Exhibit No.5. That's a letter from you dated
21 November 20, 1981, to Mr. coyne?
22
23
A
Q
Yes.
In there it says, in the second paragraph,
24 "The liquor license has been transferred and a lease has
.
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been negotiated with Al Leo for the building and ground"?
GIIOI" a. LOIIIA RII'QRTtNG nAVICI, 2..08 """K DR. lUlU ., Hla. ,." 17110 717'151I1-11501 0" "IOQ'2U.AI577
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YOI.
2 Q "However, for the real estate transaction to be
3 completed, we need the apPJ:oval of the Hampden Township
4 II:lAII?
!:l
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A
Q
Correct.
"If you need vlJl:iflcl1tion, contact Gary
7 French"?
B
A
correct.
9 Q What was your meaning when you said that a
10 lease has been negotiated with Al Leo for the building and
11 gl:ound?
.
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15
A There is no question in my mind that the
transfer took place, as I said earlier -- and this is what
we're aJ:guing about -- with the transfer of the license.
What happened is that the IDA was still
16 considering giving sOnle tax-free status to his loan. I
11 don't know how that works. Actually, Kal:agiannis got
18 involved in that before he came to me with the agreement of
19 sale. But the fact of the matter is that as of the transfer
...
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of the liquor license, the IDA hadn't made up its mind.
And Al Leo, according to Karagiannis, was very
anxious to sell the sierra Madre. So Karagiannis had moved
in even prior to tho transfer of the liquor license.
Tho only thing that was held in abeyance was
the transfer of the deed and the purchase money mortgage
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becftusB it was my understandinQ that if thllt took plllce
be forB the IDA cllm~ up with a decision, that he would no
longer quality tor an IDA loan, whatever that meant. And
4 I'm not too sure that I understood what it meant at the
5 time, whether it gave tho loan tllx-exempt status and Al was
6 going to loan hill1 the II1c>ney or the loan actually came from
7 the IDA. I didn't know.
But the reason that I used the language that I
used with Henry Coyne was so that it didn't preclude the IDA
financing that Karagiannis was seeking. And the lease that
I referred to was, in my mind, if they would have asked me,
I would have said it was the lease purchased, that he
commenced I remember that he commenced making payments
under the agr.eement of sale of May 15th immediately upon
transfer of the liquor license.
16 I knew of no lease arrangement bptween
17 Karagiannis and Al Leo other than he was in there running
18 the place. The liquor license was his. He was to begin
19 payments to Leo Enterprises, and he was to receive credit
20 for that on the amortization schedule, as given to you by
21 Bruce Bayuk. And I think my correspondence reflects that
22 with Gary French.
..
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Q
There is correspondence that you're taking one
position and Gary is taking another position, which is
A I don't know that Gary communicated with llIe
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_~~n.'_'__'_'__'___"__U__'__'_~____'_"""_"__""._W" __._ ~.._n__..__ . .-....-..-..----
that he was taking another position.
Q Maybe we Ileed to go throu\lh that
correB~ondence then.
MR. GROBE I Let's mark this as Kallas ".
(Letter dat~d July 31, 1981, French tQ Kol1~s,
marked Kallas Exhibit No.1.)
BY MR. GROBEr
Q Mr. Kallas, I'm showing you a copy of IS letter
that's been marked Kollas No, 1, which is a letter from Gary
French to you dated July 31st, 1981, indicating that he had
received your letter of July 29th of '81,
He indicates in the last paragraph of that
letter, he says, "Additionally, please cDnfirm that the
3694.13 monthly paym~nt mentioned in your letter is entirely
interest or rent. I do not see room for amortization of
principal in that figure," Is that what the letter says?
A Correct.
Q What did you interpret that to mean?
A I had no idea, That's why I answered him with
my letter of August 3rd,
MR. GROSEI We'll put that letter in the
record, too, so that we have it,
(Letter dated August 3, 1981, Kollas to
French, marked Kollas Exhibit No, 2,)
BY MR. GROSEr
GfIOr.A 6 L.ORIA "l'OArING nAVICI, 20408 ""RK DR. lUlU. .. HIO. ,.~ 17110 717-l~.I'IBOI 0" l'IOO'Jillh41571-
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^ Correot.
Q There was no other correspondenoe between you
and Mr. Frenoh with regard to this inetllllment payment issue
between your lett~r of November of lY81 ~nd your letter to
him in February of 1982 sayiny the IDA has not been
approved, let's have settlemont?
A
Q
^
Right, let's transfer the real estate.
Let's go back to your letter,
Let's have settlement, I think I said, but by
10 that I meant to trans for the real estate,
.
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Q It's Exhibit K~I, Karagiannis 1. It says,
"Please be advised that James Karagiannis has been unable
to secure an IDA loan and is therefore willing to settle
i~nediately under the original terms, Call me to set up a
15 date, preferably next week."
16 And there was no other correspondence that
17 you're aware of between you and Mr. French other than that?
IB
A
No,
19 Q In response to that, did Mr. French provide
20 you with the proposed mortgage bond and warrant and deed?
21 A He did,
22 Q I'll show you what has been marked as Bayuk
23 No.3. Is this the bond and warrant that Mr. French
"
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provided to you for that?
A Yes, it is,
---- QIIQI" ,. LOI",. RI"O"TlNG ""VICI, :Io40B ","t" DR. lUlU e. ilia. p~ 11110 117,UI'ltlOIl C" I'OQO'Ulh&tl71--
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_n__~_.._._"__'__~_+____ ~_..___.___u .......H_._......".... ._..___ ..___.~...._.n.__._~.__" ---
o Did you have any discussions with
Mr. Karagiannis when~Yer you received this and before he
signed it that this says, wait a second, you still owe
321:\,000 principal and the first payment is due April 1st I
what about 011 of the payments that hove been mode up to
this point?
A No, because I thought that had been resolved
with our corJ:ospondence. I didn't,
What happened was the deed was dated February
24th. We were required to give him a purchase money
mortgage, which we couldn't have given him prior to February
24th, So everything just conformed to the giving of the
deed on February 24th.
But there wosn't any question in my mind at
that time that the payments that he had made prior to
February 24th were to be applied to principal and interest.
There just wasn't. And I viewed this as merely the putting
on of the security as required by agreement of May 15th,
Q But doesn't this say that the first payment
shall commence April 1st of '82?
A I t does I indeed, But you couldn't have a
purchase money mortgage and show the payments starting prior
thereto if the deed is February 24th.
Q
I understand that. Could there not have been
a paragraph put in here that's it's acknowledged that
___ GIIGIR " LORIA AIPORTlNG 8lA"'I((. 240B itA"" OR, SUIT[ .. HBO itA 17"0 711'B"H~08 OR '-800',U2'."'"'
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payments received fl'olll July
A There should have been, r just didn't foresee
this problem. lleCIHllie the fact of the IIl1ltteL' is he had made
payments in the amount, in the amount, that was callrild fo):'
in the agreemont of May 15th, He made them monthly, and he
3
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6 began with the transfer of the liquor license.
7
Q
A
He began in July of '811
Yes. And I hlld a letter that I had written to
8
9 Gary French indicating that that was supposed to be applied
10 to interest and principal,
11 In fact, I was surprised from Gary French's
12 letter, since it was in that amount, that he didn't think it
.
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included principal and interest,
Q
On the face of this bond, which is Bayuk
15 Exhibit No.3, you would agree with me, wouldn't you, that
16 it doesn't reflect what you're saying?
17
18
A
Correct.
19 that?
Q
On the face of the document, it doesn't show
20
A
Correct, But the bond and the mortgage was
21 issued not as a separate agreement. They didn't go in and
22 refinance this. This was issued as a result of the May
23 15th, 1981 agreement, wherein he was required to give him a
24 purchase money mortgage.
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And the only reason for the delay, if the
-- 0.101" a LORIA "[POATING S[flVICr, ,UOIJ ".AR" DR. ISUITIt II. HIIG. PA 11110 117'e""I~08 OR HtoO.21Z2"U77-.
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delay had peen Ilnother six months or three months less, it
didn't matter. The delay was solely fot the purpose of
getting the IDA loan, solely for that purpose. otherwise,
everything could have tr/lnspired in July when the liquor
5 license was transferred.
6 Q It's your belief today that this does not
7 aocurately reflect what took place that day?
a A No, That does not accurately reflect what
9 took place overall. It doesn't refloct the payments that he
10 made prior to that day,
11 Q But you didn't feel that you needed to have to
12 have anything in this document to reflect that?
.
13
A
In retrospect, I guess I did, I guess I
14 needed more than I had.
15 Q You didn't have any discussions with Gary
16 French regarding the allocation of the payments, the monthly
17 payments, after this closing, did you?
18
A
No,
19 Q Did you have any discussion with
20 Mr. Karagiannis regarding when his ten years came up aB far
21 as continuing to make monthly payments or to make a balloon
22 payment?
--
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A
Q
A
None.
None?
No,
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. 1 MR. ClROSl!lI DQ youlwant to give Us just a
2 moment.
3 (Brief receu.)
4 MR. GROUt I don't think we have any other
5 quutionll.
6 (The deposition was concluded at 11153 a.m.)
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STATE OF PENNSYLVANIA
SB.
17
2 COUNTY OF DAUPHIN
J
4 I, Donna J. Fox, a Reporter Notary-Public,
5 authorized to administer ooths within Ilnd for the
6 cQmmonwealth of Pennsylvania and take depositionl!l in the
7 trial of causes, do hereby certify that the foregoing is the
8 testimony of WILLIAM C, KOLLAB.
9 I f.urther certify tha t before the taking of
10 said doposition, the witness was duly swornl that the
II questions and onswers Were taken down stenographically by
12 the said reporter Donna J. Fox, a Reporter Notary-Public,
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approved and agreed to, and afterwards reduced to
typewriting under the direction of the said Reporter.
I further certify that the proceedings and
evidence contained fully and accurately in the notes by me
on the within deposition, and that this copy is a correct
transcript of the same.
In testimony whereof, I have hereunto
subscribed my hand this 31st day of March, 1997.
~4i2
Donna J. Fox, Reporter
My commission expiresl
March 20, 2000.
<l11011t 6 LO"I~ "l,g"TING ""Vlek, UOI "M'K Pit, SUITt t. HIG, ,,,. 17110 lINI"HDOI 0" 1"00-1112'''''77
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KOLLAS &COBTOPOULOS
.,rO.NI';I _"fO C:O\JNIII.\,Oll", I.'W
U I.....".. r . rll" r
'~'Ol'"
LIMOYNI, PINNULYAN'A "0'1
w'''''.....q _O""A'
W'L\.I.....C oo,rO'O",,")I
O. 'il 0 I . o. t,1t
'H""OU ,,,.,.,,
"UOIOl'"
Auqust: 3, 1981
Gary E. Frenoh, Esq.
KEEFER, WOOD, ALLEN & RAHAL
210 Walnut Street
P.O. Box 1226
Harr.isbur~, PA 1710$
ReI Sierra Madre Saloen
Dear Clary I
Thank you for your letter of July 31, 1981. It is my
understandinq that Al Leo and James Karaqiannid have agreed to
the arranqement outlined in my letter of July 29, 1981.
This arrangement which has been arrived at by both parties
is for the ~enefit of both parties. While it is true that James
Karaqiannis's payments will be less, Al Leo will be reaeiving
tax free interest. As a consequence, it was my understanding
and I think the understanding of the parties that the monthly
payment: would include interest an.d amortization ef the prinaipal.
You will recall that the sum of $3,694.13 represented the monthly
payment to be made in the event the IDA approval was not forth-
coming. The principal reduct10~ however slight, is to be for the
benelic of my alient.
Finally, the value of the transfer of the major assat is in
my mind not oapable of determination and we would not aqree to the
acaeleration of the $20,000.00 payment.
a;;;
yours,
Wil!iam C. Kellas, Esquire
WCK/mj
UlllBlI F
.
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STIPULATION
3
2 It is hereby stipulated by and between counsel
3 tor the resplictive parties tha.t signing, sealinlj/,
4 certification and filing are waivedl and that all objections
5 except as to the form of the question are reserved until the
6 time of trial,
7
e JAMES KARIAGIANNIS, called as a witness, being
9 sworn, testified as tollowsl
10
.
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DIRECT EXAMINATION
BY MR. GROSEI
Q
Mr. Karagiannis, my name is Steve Grose and
15 I'm the attorney for Leo Enterprises in this matter. We're
16 here to take your deposition today. Have you ever been
17 through a deposition before?
IS
A
Yes.
19 0 Just the general ground rulesl If you don't
20 understand a question that I ask or you don't hear it or
21 whatever, let me know and I'll rephrase it or restate it so
.
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that you do understand it. I'll assume if you do answer a
question that you have understood the question and you're
giving me the best answer that you have to that question.
Okay?
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A okay.
Q I understand Mr. Kallas is here as your
counsel today. If at Ilny time you have Ilny questions, you
want to confer with him, you're froe to do that. If you
need to stop for whatever reason, just let us know.
6 A All right.
7 Q I wanted to get into just a little bit of your
8 background as to not so much with your educaUonlSl
9 backQround but your work background, You graduated from
10 high school?
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Q
A
Q
A
Yes.
OJ.d you go on to college?
Yes.
Where did you go?
I went to Mansfield and didn't finish and came
16 back here and went to HAec for another year and a half.
17 Q Roughly when was that?
18 A 1964, '65,
19 Q You graduated from high school when? It would
20 have been around '60?
21
A
'63.
22 Q So then you went to Mansfield from there and
23 then came back here?
24
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A
Q
Yes,
Did you finish with a degree then at HACC from
- GIIGIR 6 lOfll~ RIl'OftTING ISI"Vlel. 2..08 PARK DR. SUITE I HUG, ,.~ 17110 717.&..1-1&08 OR I'OOO'Uihte71-.
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'63 to '64?
A No.
Q What did you do after that?
A I worked at the steel mill for six months.
Q Bethlehem steel?
A No. Harrisburg steel company. They burned me
7 out. And then I bought a restaurant, my uncle's restaurant,
whioh WBS Jimmy's Barbecue on Fourth street in Harrisburq.
Q That would havo been roughly when, timB frame?
A '68, '69,
Q How lonq did you stay in that business then?
A Until 1974. My father passed away. It was
just too much for my mother, and we sold it, And I didn't
do anything for about a year, At that point a friend of
mine had owned the Red Barns. It was a local franchise, and
16 I ran into him a couple of times, and he pleaded me to go to
17 work for him. I didn't want to be involved in the
18 restaurant business any more.
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Finally he made me an offer I couldn't
refuse, So I went to work for him and stayed with him
until '77, '78.
At that point I was recruited by Dutch Pantry
and went to work for them for one year, At that point Dutch
Pantry was Bold to CPc, Corn Products Corporation, a big
conglomerate, And I didn't like the changes they were
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makinq so I left and became a partnership in a beer
distributor on the Carlisle Pike with Dennis Theorodatos.
Q Dennis who?
^ Theorodatos.
MR. KOLLASI T~h.e~o-r-o-d-a-t-o~s.
A I stayed with him for one year. Actually, he
was the absentee owner, I was the working partner. It
didn't work out.
At that point we Ilsed to play cards with Al
Leo, And he took a liking to me, And he said, you've been
in the restaurant business all of your life, why don't you
buy the Sierra Madre. I said, BUY sierra Madre, Bure. one
thing lad to the other, and I said okay. Then I bouqht
sierra Madre.
15 BY MR, GROSE:
16
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Q
A
Q
A
That was in?
1980.
'80, '81?
In 1980, May 12th.
MR. KOLLASI '81.
21 A '81?
22 BY MR. GROSE:
23 Q I have the documents. We'll look at the
24 documents.
.
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Prior to going in and buying the sierra Madre,
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you had been involved u were you the owner of the
restaurant Jimmy's?
A Yes.
Q YO\I were the owner?
A Yes.
Q You wero the part owner in the beer
distributor out on the Carlisle Pike?
A Right,
Q So you had been involved in business
transactions beforel in other words, this wasn't the !ir~t
business tronsaction that you were involved in?
A Right.
Q And you had looked at notes and mortgages and
those types of things before?
A Yes,
Q I want to backtrack just a little bit now and
find out before your coming in for your deposition today,
did you review any notes or documents or look at anything in
preparation for the deposition?
A No,
Q As far as preparation for it, did you talk
with your attorney, with Mary or with Bill?
A No.
o You indicated that your first contacts with Al
Leo were social contacts?
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A That1s right.
Q I m~an you had lIIet him I:'oughly when?
A I guess thB aummel:' of '80, aJ:ound there. And
w~ had a pokeI:' game like twico a week. And r would go once
and not go bllcl<, and back and forth.
6 Q Did you havB discussions with anyone else
7 othe~ than Al Leo about buying the I:'estaul:'ant?
A
Q
A
No.
So your only discussions wel:'e with him?
Yes.
Q I'm assuming you had no diuct discussions
with Gary Fl:'ench who's the attol:'ney here, I mean other than
through when your counsel was pr~sent?
A
Q
No,
As I understand it, there was a letter of
understanding that was signed back in March of '81 which
basically set forth that you Were going to buy the Sierra
Madre and that there was going to be anothel:' agl:'eement that
was actually the agreement of sale which was actually signed
back in May of 1981. Does that refresh YOUI:' reCOllection,
or is that how you recall it or not?
A Not really,
Q I' In not going to mark this, but I'm going to
let you take a look at it.
A This is after the fact, This is dated March
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17th. I gUfJSS Mr. French or whoever drew this up.
Q The reason I didn't make it an exhibit, it was
my understandillg there waB a letter of understanding that
4 was executed and then there wos an agreement, agreement of
5 sale, which superseded this letter of understanding,
6 'l'his was just basically sllying we understand
7 what we're going to do. We're going to set forth this in an
8 agreement and this was superseded I believe specifically i~
9 the agreement of sale,
10 Here is the agreement of sale. When you look
11 at the complete understanding, it references the letter of
12 understanding, which was dated March 17th. I'm just trying
..
13
to get the sequence of events that occurred as to how you
14 became in contact with Mr. Leo and what negotiations went
15 on, those types of things.
16
A
What happened was he says, Come on down, let's
17 playa game of gin, I says, Okay. So I went down and
18 played a game of gin with him, and he's talking to me about
19 the sierra Madre, And then he goes on to say, I need to get
20 rid of itl you know, my daughter, I want her down here, this
21 and that,
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So I said, Okay, fine. And he snys, What do
you mean all right? He wanted 425,000, That's a lot of
money, I said, Okay, fine. So I said, Let me go home.
I '11 be back,
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So I went home, got a check. I gave him a
check, I don't know what it was, $10,000 as good faith. And
at that point, I guess he got his atto~neys to draw up,..
Q The lette~ of understanding?
A That I don't recall.
Q Is that your signature on there?
A Yes.
Q Can you tell who the witness is there by your
signature? Marguerite Johnson, I believe it is?
A That had to be his ~- I don't remember that
11 lady.
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signature?
A
YoU don't know her?
No.
But you don't dispute that that's your
No. That is my IS.lgnature.
MR. KOLLASt Off the rocord.
(Discussion held off the record.)
BY MR. GROSEI
Q
Mr, Karagiannis, you had described before that
you first met Mr, Leo at a card game and that was where you
first discussed about the possibility of buying the Sierra
Madre I and you say he brought it up to you or you brought it
up to him, How did that come about?
A He got to like me. And I guess three, four
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months in oUr association, he st~rted talking to me about
Sierra Madre.
Q You indicated that, as I showed you -- I
hadn't marked this an ~xhibit -- but the letter of
understanding which J.s dated March 17th is signed by you and
appears to be signed by Mr. Leo as the president of Leo
Enterprises, It's referenced if the agreement of sale which
was then executed by you and Mr, Leo of May 15th of 1981.
Is that right?
A Yes,
Q Do you remember when you physically went over
and started to run sierra Madre?
A It was a ~riday night, May 12th.
Q May 12th?
A Yes,
Q So it was actually before this agreement of
sale, which is dated May 15th, was signed?
A It was a Monday. But he said, I'll tell you
what, I'll give you two days' gratis, you know, like Friday
and Saturday night.
Q Go ahead and start with that?
A Right.
Q Because in the letter of understanding it does
say that you would have possession of it, I believe. Where
did I see that?
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2 BY MR. GROSEr
3 Q one, yes. "Sellor will allow buyer to have
4 possession of the premises for the purpose of operating the
5 premises as of the date hereof." It says March 17th. But
6 that didn't happen until what May 12th, May 14th, something
7 like that?
MR. KOLLASr one.
A
Right.
Q And as I said, this letter of understanding
was really superceded and integrated into the agreement of
sale of May 15th, as it indicates in there. If you would
take a look at what we have identified as Bayuk Exhibit No.
I, paragraph 17.
Paragraph 17 refers to that letter of
agreement, right, letter of understanding?
A This is dated March 17th, yes, Paragraph 17,
right?
18 Q Paragraph 17, right, It refers to the written
19 letter agreement dated March 17th '81, which I'm assuming is
20 this letter of understanding?
21
MR. KOLLASr Off the record.
22 (Discussion held off the record.)
23 BY MR. GROSEr
.
24
25
Q Mr. Karagiannis, we have some confusion going
on here as to how many agreements of sale and letters of
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Tha t 's correct.
14
2 Q In the agJ:eement of sale it indicates that the
3 terms of payment -- I'm looking at page 2 -- it sets the
4 terms of payment. And J.t sets there the total purchase
5 price is 425,000, It shows 10,000 to be due prior to the
6 execution of this agreement. I think you said you had
7 already given him the check for 10,000?
8 A Exactly,
9 Q It says $70,000 due on or before the date of
10 settlement. And then it says $20,000 with interest at
.
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10 percent due, and a single payment within one year after
the date of settlement, and $325,000 due in monthly
installments and herein provided, correct?
A
Right.
What we're involv~d with here today, there is
Q
16 no dispute as to whether any of these other terms or
17 conditions were met, the $10,000, the $70,000 or the
18 $20,000. What the dispute involves today is the $325,000
19 and whether all of the payments were made under that
20 installment, Is that a fair statement? Is that your
21 understanding?
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A
Yes.
Q If you look at Paragraph No.5, which is on
page 3 of that exhibit, it talks about that monthly
installment portion, or the $325,000 that was to be paid in
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monthly installments.
And if you would, I would like you to read
into the record for me just the first couple of sentences in
that paragraph so thfit there is -- I don't want to read it
in. I would prefer to have you rmading it in. That way
there is no question as to my phrasing it.
A "The unpaid principal amount of $:125,000,
together with interest at the rate of 11 percent per annum
on the unpaid balance, or in the event that tax-freo
mortgage financing can be arranged through an fippropriate
industrial development authority, interest rate of eiqht and
a half percent shall be made in 119 equal monthly
installments, calculated on the basis of II 15 year
amortization period and one final installment equal to the
entire unpaid principal and interest balance. The first
such installment shall due and payable 50 days after date of
settlement. "
Q "And each subsequent," jUBt continue that
sentence.
A "Any subsequent installments shall be due and
payable at one month intervals therflllftor."
Q It was my understanding III rU1Il1i1l1l thiN, what
agreement called for was your monthly inalnlllllllllts lot' the
$325,000, which is the amount that WIIN qolny tu 110 pnid in
monthly installments, was to utarl 50 day~ aCtur the date of
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settlement.
A Right.
Q And settlement is not defined in this
aqreement anywhere as to what the settlement date was. The
settlement was going to occur I:Ifter tho financing was
available on the IDA?
A No. Settlement was when the LiquoJ: control
B08J:d authorized the license because I couldn't take
possession of the license until it was transferred to my
name.
Where is that definition of settlement in
Q
here?
A I don't know if it's in here.
MR. KOLLASI Number 7.
A Number 7? Forty-eight hours after the receipt
of approval for transfer of Pennsylvania Restaurant
License.
BY MR. GROSEI
Q I t says, II All deeds and security documents
required hereunder shall be executed at settlement and shall
thereon be recorded and/or filed immediately, II is that
right?
A Yes.
Q Do you know when the deeds and security
documents were executed and filed?
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No, I do not.
would that have occurred in February ot 19B2?
I do not know that.
We'll pull ail of those doouments then.
But in Ilny event, this paragraph says that the
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6 first payment is due 50 days after settlement, is that
7 riQht?
B
A
Yes.
9
Mr. Karagiannis, I'm going to show you what
Q
10 has been marked as Bayuk Exhibit No. 3 and ask you just to
11 take a minute to take a look at that and see if you
12 recognize that document.
.
A
What is it?
It's the bond that went along with the bond
13
14
Q
15 and the warrant, a bond and warrant that went along with the
16 mortgage that was signed by you at the Closing in February
17 at 1982.
18
Okay.
That's what I'm representing it is. But I
A
19
Q
20
want to make sure that you understand that
have you seen
21 that document before?
22
I don't recall but.
A
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Take a look at the second page. Is that your
Q
24 signature on there?
" 25 L A Yes, it is,
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Q It says it's signed, sealed and delivered in
the presence of, and there I s a signature there, Is that
M~. Kollas's signature?
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Yes,
~ Q Do you recall a meeting at Mr. Kollas's office
6 where Gary French was present and brought over the mortgage
7 and the deed and this bond and had you sign this at
8 Mr. Kallas's office on February the 24th, 1982?
9 I don't recall that.
A
Q
1\
16 years ago.
Q
or anything.
can recall,
I understand that. I'm not trying to be smart
I'm trying to figure out what it is that you
12
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And I see what the documents show, and I'm
16 trying to reconcile, We've got two differences of opinion
17 here, one saying that the payments made from July '81
18 through February of '82 were in payment of the installment,
20
21
22
A
Q
A
Do have that document saying that somewhere?
Pardon?
19
Q
Do you have a document saying that?
No, No, I don't, I said we have two
23 differences of opinion, We have your opinion saying that
24 that's what occurred, I don't have any written document
.
25
that says that, If I did we probably wouldn't be here. We
~.~- Gllt)(R . LORIA REPORTING IS(RVIC~. 204Q8 PARK DR, SUIU B. HflG, PA 17110 711-8.1-1&01 Oft 1.80Q'2i!Z'Ul1--
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also have another opinion which says that this installment,
the installment loan, the $J25,000, the paymonts on th~t
started when the bond and when the mortgage was issued at
settlement, which was in February of 1982,
II No, that's not true because when Mr. Leo threw
the 11 and a half percent interest at me, r said, That's a
little strong, He says, well, what do you think you can
do. At that point we tried to \let the cumberland county
Redevelopment Authority to borrow the 325 at 13 and a half
percont.
So we worked with that three, four months,
maybe five months, and I wasn't approved, Now, if I was
approved at that point, the rate would go down to 8 and a
half. But he sa.id I want you to Inalte your payments every
15 month as though you already had the loan. But the loan
16 didn't come throullhl and, therefore, we just kept on
17 paying.
18 Q It's your understanding that you were going to
19 be looking for IDA financing? That's what development
20 authority financing is.
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A Right;, to save whatever, 3 percent.
Q When you signed off on this bond, this bond
which is Exhibit No, 2, this document says -- and it was
da ted the 24th of February 1982.
A By then we were turned down by IDA,
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Q That's oorrect. We're going to go through
those things, the process that occurred there,
This indicates that at that point in time, the
principal amount that was due as of that date was $325,000
and that it was going to be mado in monthly payments
commencing -- the first of the monthly installments says due
and payable on April l$t of '82, Actually, it was March of
'82. You were praying monthly payments. You were paying a
monthly payment.
The problem that we're having is what that
monthly payment was supposed to constitute, because this
document snys that the payments that you made from July of
1981 through February of 1982 could not have been on the
principal of the 325,000 because this document --
A What was it on?
16 Q Let me finish, please. This document says
17 that as of. this date, you agreed to pay $325,000 in
18 principal with the monthly installments commencing this date
19 on.
20 I encourage you to read the document or have
21 your counsel, if he wants to read the document it --
22 MR. KOLLAS I The only thing I'm going to say
23 is the document speaks for itself.
~
24
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MR, GROSEI It does. It speaks for itself.
MR, KOLLAS: And what he thinks -- go ahead,
GIICJI" 6 LO"IA AIPORTING III"VICI, 211I01) "~"K DR, !!IUITI .. Hla. ,,'" 17110 711.1511I1-11501 0" ',800':122'11I1577
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You Qan ask him.
MR. GROSEI rhat's what l'Was goinq to ask
3 him.
4 BY MR. GROBE I
Ii Q That's my interpretation of the document, and
6 you siqned the document, I would like to know if you have a
7 different interpretation of that document than what I have
8 just said.
A
Yes, I do.
Q If you could tell me what your interpretation
of that document is,
A The interpretation of the document to me was
immaterial because from day one when we were trying to get
the loan from the cumberland county Authority, okay, and we
didn't get it, whoever prepared this document had to
somehow, all right he took it from day that we were
supposed to settle on May the 15th, whatever, and it should
have been from that day on. I don't know why it became
February,
20 When I got documentl5, you know, I didn't read
21 them. It didn't mean anything to me. Thanks, I wanted the
22 deed, Al l5aid you can have the deed. And that was it.
23 Now, why this was February 24th to '82, I have no idea. We
24 had six, seven payments in there,
.
25
o
I guess that's what my question is, When you
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looked at thili document, when this document was presented to
2 you fOJ: signature, and it ropresents that you're going to
3 pay $325,000 starting here, didn1t it occur to you that
4 maybe you should say, wBit a second, what about those
5 payments back from in July of '01 to the present, what about
6 them?
7 A To be honest with you, no, I didn't oven look
8 at the thing.
9
Q
You didn't look at this document I you just
10 signed it?
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Yes, That's what I did, signed it.
Me and Mr. Leo had an understanding many times
on a handBhake because he was that type of a man and so was
A
14 I. And he allowed me to go for the loan from redevelopment
15 authority, And when we didn't get it, I guess that's whon
16 this came to be,
17
Q
Were there ever any discussions between you
18 and Mr. Leo about the length of time that it was taking to
19 conclude the deal? In other words, it appeared in the
20 agreement that was signed on May 15th, which is Exhibit
21 No.1, that settlement was going to occur relatively
22 quickly. I think you folks thought that was going to
23 happen, but it was based on when the IDA --
24 A No, that's not true, Settlement was done that
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day.
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o No, ~ettlement wasn't done thot day, If you
look at the agreement, the agreement says
4
A
o
In the event thot I got the loan from IDA.
Let's look at what the agreement says. The
5 agreement says"Settlement hereundar shall take place within
6 48 hours after the receipt of approval for transfer of the
7 Pennsylvania Restaurant Liquor Licence No. 20227 to buyer.
8 All deeds and security documents required hereunder shall be
9 executed by the parties at settlement and shall thereupon be
10 recorded or filed immediately,"
II
A
It took effect 30 days or 40 days after,
12 wha tever it took time to trans fer the licence.
.
13
Q
When it took effect was, settlement also
14 required that in order to have settlement under this
15 agreement, that the deeds and security documents shall be
16 executed at settlement and shall thoreupon be recorded or
17 filed immediately.
18 We have a disagreement as to when settlement
19 occurred under this document. So I guess we need to -- I'm
20 not here to try to convince you of our position today, and
21 you will probably not convince me of. yours. But I just want
22 to find out the facts on which you base your position so we
23 can take a look at that and see what those facts are.
24 Was there any discussion between you and
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Mr. Leo about leasing this property?
-~ GEIGIR a LOfll'\ JlU'OR'UNG IIl:RVICr, 2"OQ "ARK DR SUIT[.. HRG, PA 17110 7'.' "11I"'&01 0" HIOO'~:U'''''77
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A No,
Q Nevel." any discussions about that?
A No,
Q I'm going to show you what was marked Bayuk
IElIhibi t No. 5 and ask to you tal(e a look at tha t, please.
A No, there is no reason for me to have even
seen this. And I don't know why. There was never .- never
talked about a lease, never had a lease.
Q If we could go back. This is a letter dated
November the 20th 1981 from your attorney, Mr. Kollas to
another I!ttornay, Henry coyno, who is a solicitor of Hampden
Township?
A
Q
IDA?
A Yes.
Q In the letter it says that the transaction is
being held in abeyallce pending the outcome of the decision
of the Hampden Township Industrial Development Authority.
It also says that the liquor license has been transferred.
That occurred roughly in July, I believe, of '81. And the
lease has been negotiated with Al Leo for the building and
ground. However, for the real estate transaction to be
completed, James Karagiannis needs approval of the Hampden
Township Industrial Development Authority. It says if you
Right.
Reqarding the loan with the Hampden Township
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lease type of -- because of IDA, all right, But there was
never no lease. We had no lease.
If there was a lease, you Would have one. So
would we, wouldn't we?
Q You can have an oral lease as well as--
A You can?
Q Sure. You don't have to have a written
lease.
Are you saying I can also have documents, oral
A
doouments?
Q Pardon?
A Documents, can you have oral documents?
Q No. You can have oral agreements, like you
said just said,
MR. GROSEI off the record.
(Discussion held off the record.)
BY MR. GROSEI
Q Mr. Karagiannis, we had before your deposition
today Mr. Bayuk, who was your accountant, come in and
testify as to what he knew about this particular
transaction. And he said that he was oontacted first by you
sometime in 1981, That was his first dealings with you, was
roughly in 1981, dealing with this particular transaction
with sierra Madre. Is that your best recollection?
A
Yes.
GIIGI" I LO'U~ "I"ORTING II"VICl, U08 I'A"K D". IUITI: .. HIG, f'A 11110 111'&1&1'1&0' 0" "IOO'UihU!71 _
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(Letter dllted February 15, 1982, ~ollaB to
French, marked Exhibit No. K-l.)
BY MR. GROSE I
4 0 It's my understanding that from November of
5 1981 when Mr, Kolias sont the letter to Mr. coyne through
6 February of 1982, they Wer$ was still working on trying to
7 get the IDA financing in place?
B
9
A
Q
I think late January we were turned down.
And as a resul t, Mr. l(ollas wrote a letter
10 dated February 15th 1982 to Gary French, who was Mr. Leo's
II attorney, saying ploase be advised that Jim Karagiannis has
12 been unable to secure nn IDA loan and is therefore willing
..
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to settle immediately under the original terms. call me to
14 know set up a date, preferably next week,
15
A
I think this was in reference to the deed
16 because I wanted the deed, and he said no problem.
17 Q Sure, The closing hadn't taken place yet.
18 You hadn't qotten the deed, We hadn't gotten the note and
19 the mortgage, is that coned?
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A (No responso. )
Q You had pOBs08sion of the Sierra Madre?
A Yes, I did.
Q What is it you are looking for?
A I'm looking for the contract.
0 Here it J.s.
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A Mr. Leo, everything was closed with the
exception of the paperwork, the deed. He had the $80,000,
all. right, on May the 15th of 1981.
Q But he didn't give you a deed on May 15th,
1981, did he"
A No, he couldn't give me a deed because o!
this, the IDA,
Q Right. That's what I said before. The
installment portion of the purchase price was the thing that
was still sort of up in newspaper. the air, if. you will,
because it was dependent on ~lether or not you got the IDA
financing or you didn't or he was going to carry?
A He started carrying from day one.
Q Right. That's what is in dispute here as to
when did that take place because the agreement says that
settlement will occur when all of this happens, And
according to what the documents reflect, that settlement
occurred, in my view, the settlement occurred in February of
1982, which is when the deed was given to you, when you
signed the mortgage encumbering the property, when you
signed tho bond and the warrant, which is the note saying
that you're going to pay the 325,000 and how you are going
to pay it.
At that point those documents were exchanged,
and the deed was conveyed to you, given to you, and you were
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then the owner of sierra Madre, the legal and equitable
ownel.". Let's put it that way.
And that's what I 1m saying is that exchange of
the deed and the mortgagE! and the note didn't OCCUl." unt 1.1
February the 24th of 191121 J.s tha t conect?
A
That's what the document says.
7 Q In fact, your attorney wrote to Gary in
8 February and said we can't get the IDA and we want to settle
9 under the original terms and we want to do that
10 immediately. And that woul.d have been within the next week
11 to ten days on the 24th, is that right, about nine days?
12 Again, I'm going to go back because I I m not
..
13
14
15
sure I understand your response. 00 YOI~ recall hliving a
meeting with Mr. Kallas and Gary French and yourself at
Mr, Kallas's office on February the 24th, 1982, when these
16 documents Were signed and executed?
17
18
19
A
Q
A
No.
You don't rewember that?
No,
20 Q Do you remember going with G~rY to the sierra
21 Madre after the closing for a beer?
22
A
No, I don't remember that,
23 Q Do you recall receivinq or reviewing the bond
24 and warrant before signing it on February the 24th?
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A
No, I don't have it in my memory, It's 16
GEIGIIt a LORIA REPORTING U"VIC[, ;l"08 ,...."" Oft, SUIT[ .. H14, .." 11110 "IH~4H"OI OR ',oo.ua..un7
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years ago.
2 Q Mr. Kallas was your attorney at that point in
3 time. Would he have reviewed the documents tor you?
4 A I would hope so. That's why we pay you guys
5 high prices.
6 Q Those big bucks, that'D right.
7 I\.fter the agreement of sale was signed in May
8 ot 1981, did you have any more contact or communications
9 with Al Leo, with Mr. Leo?
A
Yes.
Q When was the last time thRt you spoke with him
regarding the sierra Madre, this transaotion?
I\. The transaction itself?
Q
A
Q
Yes.
The day we signed it on May 15th.
YoU did have conversations with him after
17 that, right, or not?
18 A Yes, how is it going, He would come up and
19 see me, I would go down an see him. But nothing in regards
20 to how are you doing with the IDA.
21 Q Did you ever have any discussions with him
22 about what -- you were making payments. I mean there is no
23 question that you made payments starting in July of 1981,
24 Was there any discussion between you and he as to what those
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payments were?
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It was for the mortgage, tne 325 that lowed
him.
12
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that?
A
The 325,OOO?
Right.
Did you and ha have any discussions about
No. As long as the payment was there, there
was no discussion.
Q So you wel."e making a payment, and there was no
discussion about that payment, that's what I'm getting at?
A No, because the contract spelled it out thot I
would have to pay him every month, whatever it was, 33,
S3400.
o We'll go back again, We differ. on when under
the agreement those payments start and that's what brings us
all here today.
Was there any discussions between you and
Mr. Leo when at the Closing or around the closing time in
February of 1982? Was there any discussions there regarding
your signing of the note or the bond or the mortgage or the
deed?
A
No,
o Did you have any discussions with Mr, Leo
after that date regarding payment of these monthly payments
or with regard to the bond or the note?
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ocour in May of '81, It didn't occur in July of '81. It
didn't occur until February of '82?
A '1'110 rellson it didn't occur, because wo were
w~itinQ for the Industrial Redevelopment Authority to okay
the loan.
Q Either approve or disapprove it?
A Right,
Q I understand that,
After the mortgage and the bond and the deeds
were exchanged in February of '82, I mean you continued
making the monthly payments, right?
A YeR.
Q The agreement of sale and the bond indicate
that it's supposed to be paid out in ten years, with a
balloon payment at the end of ten years, right?
A Yes.
Q But it was figured out on an amortization of
15 yelll:s?
A Right.
Q So in effect what it did was lower the monthly
payments, and then you would have to come up with a lump sum
at the end of ten years?
A
Q
A
Correct.
That's your understanding?
Yes.
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A No.
Q Did you ever have any disoussions with Mr. Leo
after, let's say, the summer of '81 u I think you said you
were having discussions at that point. Every once in II
while he would say -- you would have discussions about how
is it goin'i1?
A Spring.
Q Spring of '81?
A Yes.
Q You never had any discussions with him from'
that point until his death regarding these repayments?
A No, because I was good paying. I would go see
him every month and give him a check.
MR, KOLLAS: off the record,
(DiscussJ.on held off the record.)
BY MR, GROSEI
Q In some of the requests for admissions that I
had sent over to your counsel in this matter, one of them
and requests for admissions are just things that you say,
okay, here is a statement, we want you to admit to that or
to deny that. And I'm sure he probably went over those
things with you,
A Sure.
Q Ono of the things that we asked you to admit
was that the mortgage signed by -- I'm going to read he
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request itself. "'rhe mortgAge signed by Mr. Karagiannis
dated February 24th, lYll2, in the alllount of $325,000 was
reviewed by Mr, KaragLllnnia and/or his counsel, Mr, Kollas,
prior to the closing."
It says that the allegations lire admitted.
6 "However, it was reviewed in the context that it was a
fulfillment of the agreement dAted May 15th, '81, wherein
paraqrllph 5 provided for installmol1t payments and paragraph
6 provided tor securities, specifically to purchase money
mortgage. And the purchase money mortgage was given at the
time that the deed was given to Mr, Karagianl1is."
Was there any mortgage that you gave at the
time other than the mortgage that was signed on FebrUAry the
24th that accompanied the bond and the warrant? In other
words, you only ever gave one mortgllge on thAt, isn't that
right?
A
Yes.
Q That would have been when you exchanged the
mortqage for the deed in February of 1982, isn't thAt
correct?
A That's what the documents say,
Q Anothor request for admission that we ask~d
was, "The mortgage signed by Mr, I<aragiannis dated Febl'uary
24th, 1982, was signed, sealed and deliverod by him in the
presence of William C, Kollas, his attorney," And you
>-- GIIOI" 6 \.DRIA "1"QATING IIA\lICI ~.o.. ".ARK 0" IUITE.. Hle;,"" 1111U "17'''''''1&011 Olf 1.1I00,uz.",rHl--
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admitted that. In faot, it was. I mean the document shows
that it WIlS there.
A Right.
Q I think it was your testimony that you don't
have any specific recollection now of actually being at a
closinq or beinq at a settlement where you signed the
mortgage and the bond, that Mr. French was present and
Mr. Kallas was present?
A As I said, it was 16 years ago.
Q I guess what I'm tryinll to find out from you,
is it your recollection it could have happenedl you're not
sure or you're sure you weren't there?
A I'm sure I was there because you're tellinq me
it happened. I just don't recall.
MR, GROSEI I don't think we have any more
questions.
(The deposition was concluded at 11125 a.m,)
\\
, "
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RECEIVED tlflR 1
\~gl
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TABLE OF CONTENTS
WITNESS
'OR PLAINTIFF/DEFENDANT
Brllce Ill. Bayuk
DIRECT CROSS
3
-..
PRODUC,G
PLAINTIFFtS/DEFENDANTts EXHIBIT NO. JlND MARKED
Bayuk No. I - Agreement of sale 8
Bayuk No. 2 .. Payment schedule, three pages 12
Bayuk No. 3 .. Bond and mortgage document
two pageS 19
Bayuk No. 4 .. Mortgage Amortization Schedule 22
Bayuk No. 5 .. Letter dated November 20, 1981
Kollas to coyne 25
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8 BRUCE E. BAYUK, called as a witness, beinQ
9 sworn, testified as folloWSI
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11 DIRECT EXAMINATION
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9'rIPULA'I'ION
It is hereby stipulated by and between oounsel
tor the respective parties that signing, sealing,
certification and filing are waivedl and that all objections
except as to the form of the queation are reserved until the
time ot trial.
BY MR. GROSEI
Q Mr. Bayuk, would you give us your full name
for the record, please.
A Bruce Ely Bayuk, B-a-y-u-k. Ely is spelled
E-l-y.
Q Mr. Bayuk, illY name is steve Grose and I'm here
as counsel for Leo Enterprises in a matter to take your
deposition today. Have you ever been through a deposition
before?
A
Q
A
Q
Yes, I have, once.
So you're familiar with the procedure?
Somewhat, yes, Successful I might add.
You survived?
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RiQht.
That'li successful. I f you don't understand
any question that I ask today, just let me know. I'll try
to rephrase it so that you do understand it.
A Can I repeat it during this?
Q Pa rdon"
A During this period, can I ask you?
Q Sure. You just ask me to repeat it, and I t 11
repeat it. If you didn't catch it or if you don't
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10 understand it, just say I don't understand it. I'll
II rephrase it or do whatever we need to do to make sure that
12 you understand the question,
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Then when you answer a question, I'll assume
14 then that you do understand the question and that you are
IS giving the best answer that you can to that question,
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Q
Sounds fine,
With regard to your background, I would like
18 to get just IS little bit of background, high school,
19 college, where you went to high school, where you went to
20 co11ego.
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Central High in Philadelphia, probably one of
22 the finest in the country. I'm going to my 50th reunion
23 June the 14th. I'm vary proud to say that.
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Penn state. I'm IS CPA, been one since 1959,
February 20th, And I worked for the state for ten years,
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most of which was corp tax. And I really onjoyed that, I
told Mr. Kollas that I revised the state form, what a big,
exoiting thing. They didn't put it in until a year after I
left the state. And then the law was rescinded when the
5 bank shares tax became another raiee tax. So all was to no
6 avail. But that was my crown and glory, I'd say.
'I I bocame a CPA on my own in 1974. I had a
8 partner who died a year later, and I've been in business
9 myself since,
10 Q As far as preparinll for this deposition today,
II did you review any documents in preparation for the
12 deposition today?
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A Yes, The Sierra Madre folder, the transfer of
file, I have the permanent file here. It's not too helpful
except I have the original of the mortgage with Leo, the
$3,694.13 payment each month. That's the original. You can
see how dog-eared it is, And I have copies for each one of
you if you would like.
o
I have copies of those, too. We'll be going
20 down through that.
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I made extra copies. I wasn't sure you needed
22 them. Okay?
23 Q I appreciate that, Yes.
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Q
surely.
Any other documents that you reviewed other
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than what you have in that file?
2 A No, I didn't think it was necessary to. And I
3 don't have the original deal. In other words, I was hired
4 by James Karagiannis, Demetrius, in, I guess, April of 'Bl.
5 He went into business as of May. I think it was either May
6 12th or May 19th, 19B1. And I've been hLs accountant ever
7 sinoe,
B Q Did you have any conversations with anyone
9 prior to the deposition" In ()ther words, did you get
10 prepared for the deposition?
11 A Not really, Just a few words with Bill.
12 That's it, Not even 30 seconds' worth, really.
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Q
Is Mr. Kallas here today as your counsel, or
14 are you here as Jim's counselor both?
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He is here as Jim's counsel, I'm here just as
16 private testimony.
17 Q You're just here to tell us the way it is,
18 right?
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Exactly.
I think you said that you had perfot'med work
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21 for Mr, Karagiannis since early 'Bl?
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May of '81, yes. That's when he went into
23 business.
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Q
The sierra Madre transaction, was that the
first transaction that you were involved with, with him?
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exhibit to be the actual docu/llent itself. Just so we
understand that that change will be made to the exhibit.
BY MR. GROBEI
4 Q Mr. Bayuk, you said you're not sure whether or
5 not you ever saw this agreement?
6 A ! must have seen something because I remember
7 the figure 425, You know, I don't have it. I just don't
8 remember where -- it should have been in this folder, in
9 this. You can see how dog-eared the primary file is,
10 That's in our inactive file. I looked through it, and I
11 don't see it,
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Q One of the components of the purchase price
was what's called the installment payments. And that was
going to be a principle amount of $325,OOO?
A
Correct.
16 Q That's on page 3, paragraph 5.
17 A Yes, I see .It,
18 Q One of the things that we're discussing here
19 today is when those monthly installments would begin or the
20 date when they would start, That's basically the hear.t of
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the controversy here today.
In this agreement, about halfway down through
paragraph 5, it indicates the first such monthly installment
shall be due and payable 50 days after the date of
settlement and each subsequent installment shall be due and
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payable at one-lI\onth intervals thereaftllr. Do you see where
that is sort of underlined and circled there?
^ I see it, absolutely,
Q Was there any discussion between you and
Mr. Karagiannls as to this installment payment or when it
would start?
A The only thing I can say, I know the
first thing -- everyone in our Office, whoever did this
account put these dates in, This is done what's that IRS
word u contemporaneously, which lneans as it happened. You
can see all of the different red and blue and black pens and
so forth. So that's been kept ever since. And whenever the
payment was made, we did the books. We put the date that it
was actually done, So the first payment looks lJ.ke it was
July 31st, '81.
Q Before we go any further, I'm going to show
you this document and ask you if you would compare it with
the document that you're looking at.
A Yes, it's the same one,
Q Just double-check there to make sure we have
everything, all of the pages and everything,
^ I will, I made copies, but here should be
three pages, Yes, the same thing.
MR. GROSE: If you would mark that as Bayuk
No.2,
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A Yes, WQ prepared this.
Q When you 5ay we?
A The computer. I had a computer progr/un for
amort1:zation schedule. This is mine.
Q You're the one that plugged in for the
~omputer and prepared this, had this prepared?
A
Q
Yes,
You did that in response to what? Why did you
9 do that?
A Because Mr. Karagiannis asked me to set up
books, records for Jamos Karagiannis trading as sierra
Madre, It was an individual proprietorship. And that's
what I did, the initial balance sheet, and this is part of
the initial balance sheet.
15 Q What you were trying to do was to set up --
16 I'm not trying to put words in your mouth. I'm just trying
17 to get out what I need to get,
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sure.
Q That this was going to be an amorti:zation
schedule for an installment loan portion of the package?
A Exactly right, yes.
Q Was there any discussion with you as to
whether or not any of these payments that are reflected here
as to when they'r.e made? In other words, the first payment
that we have here shows 7/31/81, is that correct?
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Q
Did you ever sea II mortgage dated July of
2 1981?
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Do you mean an instrument, you mean?
4 Q Yes,
5 A No, I did not. In other words, I made this up
6 from the agreement. 'rhe only thing I cannot say that I had
7 that original balance sheet, I made it up, but I don't have
8 that like you have here, I don't have that.
9 Q When you say that you made this up from the
10 original agreement, you're talking about agreement of May
11 15th of '81?
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I never saw this, but Jil1uny gave me those
figures. He gave me tho 325, I knew about the 425,
Q Your information is based on what he told you?
A Yes, right, Like I said, I might have seen
the document. I wouldn't do it just on the basis of what
the client tells you, I have to see information. So I must
have sean a document that said 425 total price, 325 was the
19 installment loan and the 100,000 is down money,
20 Q Did you ever see anything in writing that
21 would say when the first payment was due under that
22 installment portion of it?
23 A No, I didn't actually see anything in
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writing. And I just assumed this 50 day business does bear
this out that. this first payment was made in July. We have
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7/31. I don't know whose writing that is. I don't
2 recognize it at all. That's pretty light, too. That's not
3 mine. I don't make my sevens like that.
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It might be somebody in my office at that
5 time. I don't remember. Pat Mosey uRed to do this account,
6 but she wasn't with me then, I know she wasn't.
7 Q You say that this is consistent with the
8 agreement, But doesn't the agreement say that the first
9 monthly installment shall be made aftel." the date of
10 settlement, not after the date of this agreement?
11 A r knew nothing about that until I see this
12 right here, So I can't really elucidate date on that.
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Do you have any knowledge of when the
14 settlement occurred?
IS
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No, not really, I don't. I see a date of
16 March 17th in here alluded to on the back page. I just
17 scanned it, and r saw a date of March 17th. But this
18 agreement supers~des that.
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Q
There was a letter of intent that was executed
20 on March 17th of '81.
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That's news to me. I did not know anything
22 about that date until I just read this,
23
Q
Are you aware that there was a Closing
24 subsequent to this, a settlement or a Closing, after this in
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February of 1982?
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MR. GROSrel Mark that rexhibit 3, please.
(Bond and mortgage document, two pages, marked
Bayuk rexhibit No.3.)
BY MR. GROf:lrel
Q Mr. Bayuk, I'm going to show you what's been
marked os Exhibit 3, Bayuk 3, and ask you if you could take
a moment just to taks a brief look at that. It's right
here.
A This is February 24th of '82. I never saw
this document, I can tell you that.
Q You indicated that you have never seen this
document before today?
A Right,
Q I think you looked at page 2 of the document
and you did say that you recognized Mr. Karagiannis's
signature?
A Yes, I do.
Q Did Mr, Karagiannis ever mention anything to
you about a bond and a mortgage being executed?
A No, not to my knowledge,
Q I'm going to ask you to take a look at the
typed-in portion of this document, B-3.
A Right here you mean?
Q Yes, in the middle portion of it.
A I've been looking at that, yes.
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Q If you would just take a moment and read down
thtough that for me, please.
A I will.
4 Just right off the top of my head, it Iileems to
5 me that if this ware for ton years, that there would have
6 been remaininq payments to be made but we have always made
7 the $3694.13 payment as it went along, There was no
8 advancement of any kind, no number of payments all at one
9 time. So that doesn't seem in agreement with this. You see
10 what I'm saying?
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Q Right, If I were to tell you that rather than
haVing the balloon payment be due at the end of ten years,
that it was agreed that the payments would just continue for
an additional five years to pay it out, would that make it
consistent with your nwnber of payments?
A It would, but I said I knew of no such
agreement at all, The only I know, this was for 180 months,
period this is news to me, this thing,
o But when you look at this bond, Which you
agree has been signed by Mr, Karagiannis, the repayment
there indicates that it's for the principal amount of
$325,000?
A
Correct.
o If you look at the installment portion under
the agreement of sale, that's what the principal amount was,
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Q I only want to get f~om you, you have no
knowledge of this document and you have never seen it
before?
A
I have never seen it before,
Q I don't need to ask any more questions on it.
I just wanted to find out whether that was the case or not?
A
No.
Q Your initial contact, I think you said, with
Mr. Karagiannis was back in around May of 1981 to sat up the
books and things for the sierra Madre?
A Yes. It might hava been before that he talked
to me, but I don't remember, It wafln't too much before he
actually opened.
14 Q Do you know when he actually opened the Sierra
15 Madre, when he took over and started running it?
16 A I thought it was May 19th, 1981, but it might
17 have been May 12th. I know it was in that week, This says
18 May 15th, the agreement you showed me here. So it's got to
19 be in that time period between May 12th to May 19th, I'm
20 just not sure,
21 Q Do you have any knowledge when the liquor.
22 license was conveyed, transferred to Mr. Karagiannis?
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A
No, 1 do not,
Q Do you have any knowledge when the real estate
on Which the Sierra Madre is situated was actually conveyed
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to Mr. Karagiannis?
2 ~ No idea. It's got to be in that time period,
3 thoUgh, April, MIlY, whatever. I just feel it is, that's
4 all.
5 0 You feel it is?
6 A I don't know, I roally do not know.
7 Q Would it surprise you if there was a mortgage
8 and a conveyance that was in February of 1982 that was along
9 with this?
A
Yes, this does surprise me. Like I said, I
II have never seen this before. That is not to my knowledge at
12 all that he had further dealings on the same issue.
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o What communications or contacts did you have
with Mr. Karagiannis after, let's say, Mayor June of 1981?
15 ~ Monthly reporting, period. In other words,
16 and he paid these payments religiously every month and that
17 was it, I gave him the financial statement, the interest
18 and the principal payments would have been made, And that's
19 it.
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Q Did he have any discussions with you about
trying to obtain ID~ financing for the Sierra Madre?
A What is ID~? I forget,
Q Industrial Development Authority.
A That's right. I'm sorry. No, No, he did
not. I never knew about that, That's something entirely
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It's dated November the 20th, 1981, is that
Q
2 oot;re(lt?
3 1\ Yes.
4 Q IndicatinQ that the traneaction is being held
5 in abeyance pending the decision of the Hampden Township
6 Industrial Developmont Authority Board, is that correot?
7 A Yes.
8 Q So at this point, there had not been a
9 finalization on the transaction for the Sierra Madre with
10 Mr. Kal."agiannis, is that correct?
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A According to this letter, yes.
Q Did you have any conversations with
Mr. Karagiannis after, let's say, November the 20th, 1981,
regarding IDA financing or financing of any manner with
regard to the sierra Madre matter?
A
None whatsoever,
17 Q Would it be fair to say that your
18 communications with him -- let me just ask you, what
19 communications, if any, did you have with him?
20 A only the initial balance sheet, the setup of
21 the loan, that's it, of the 15-year loan,
22 Q Then on a monthly basis you would provide him
23 with financial statements?
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Q
Yes,
Did you prepare the tax returns for sierra
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Madre?
2 A Yes, but it was a schedule c in those days.
3 Individual proprietov, yes, payroll tax returns, the whole
4 ball of wax.
~ 0 You don't have any of those tax returns in
6 your possession?
7
A
I'm not sure, you know. I probably gave those
8 folders back to him, And if I know, they were probably
9 thrown out because he threw out some records of the
10 insurance man, said to him one year that it's dangerous to
II have all of thoso papers aroulld and he just threw them out.
12 That's all I can say, He's got records now from '93. Like
till
13
I said, no more.
14 Q So your testimony today is that you don't
15 believe that you have any records that would show that the
16 'tax returns for sierra Madre for 1981, '82 --
17
A
No. I have them back to '85, I think, I have
18 the folder. I didn't bring the folder. I just brought the
19 permanent file. I thought that would give me enough
20 information, but I don't have that initial agreement, that's
21 the only thing I'm annoyed about, showing the 425.
22 0 You think you have them back to '85 but not
23 prior to that?
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A
Yes, He incorporated what -- the first return
was filed 3/31/86, I think, or 3/31/87. I'm not sure. In
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fact, I have the a-Corporation election in here. That's why
I did bring the folder. But I gueaa that's really not
l."elevant to what we're doing today, but I just brought it
juat in caae,
Q
aura. Could you take a look jumt to see wh$n
6 that was done?
7
A
Your election to be treated as an
8 S-Corporation is accepted with an accounting period of March
9 31st, 1987, is accepted beginning April 1st, 1986. So
10 that's when he became an S-Corporation. In fact, I think we
11 incorporated him as an S-corporation from the very
12 beginning. So when he incorporated, we made him an
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S-Corporation right away. He was neVer a C.
Q When was that?
A They have accepted it as of April 1st, 1986.
And here is the Pennsylvania one, same thing. It's first
effective for the tax year ending 3/31/87. I had gotten
18 permission to file as a fiscal year corporation,
19
Q
So it's your understanding that there was not
20 an incorporation at the time that the sale took place?
21 A Absolutely, He was an individual
22 proprietorship up until the end of 19851 part of'86 also
23 because it didn't get incorporated until April 1st.
24 Q Did you prepare his individual income tax
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returns for 1981 or 1982?
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Q
Absolutely,
Do you reoall whether you have allY of those
3 retul'ns?
4 A I think not. If I don't have them, he has
5 them, if he hasn't thrown them out. I can't keep all of
6 that stuff in my office. After four years, I keep them for
7 four years, for sUl."e, then r return them to the clients. I
8 never toss them.
9 Q For tho year 1981 on Mr. Karaqiannis's
10 individual income tax return, the transactions relating to
11 sierra Madre would be included on a particular schedule?
12 A Schedule c.
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SchedUle C?
Right, And also we had a balance sheet, My
statements always would agree with the tax returns, but
there is no balance sheet on a SchedUle C, This 320610.70,
the balance of December 31st, I'm positive would have
appeared on his first balance sheet for that year, for 1981.
Q WouJ,d that Schedule C for 1981 and for 1982
for Mr. Karagiannis reflect whether this total payment of
$3,694,13 was treated as an interest expense, as a principal
interest?
A Let me elucidate on that, What you're saying,
this is the total payment, The part that is principal has
no relation to th~ Schedule c, only the interost would be on
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expense, is that correct1
A
We had no lease expense whatsoever. It was
3 only mortYllge interest, period.
4
Q
A
Mortgage intere~t?
From this schedule. That's where we got the
5
6 figure from, We would t;ie into the books. We make sure the
7 bookl!/ Bay the same thing, We add the total. That's why I
8 don't have lines like this, but I finally decided thiB is
9 the proper way to do it, So these are the figures that were
10 ' on his returns, Okay?
11
That's why I did ~t one line under each year.
12 then rather than a line under each month, okay?
f".
~..
13
MR. GROSEI I'm going to make II request, I
14 think, from your client that if he can't produce the income
15 tax returns for '81 and '82, that he give us authorization
16 to go to the IRS to obtain those income tax returns for that
17 period to confirm which way this was treated.
18 That to me is the only way we are going to be
19 able to see how he treated it because it wasn't II
20 corporation at that point, so there would be no corporate
21 income tax return,
27.
MR, KOLLASI I don't think we'll have any
23 problem with that. Are we off the record?
24
MR. GROSEr Yes, we can go off the record,
(Discussion held off the record.)
'--'
25
~ Glial" 6 LORIA "'''ORTING U"V'CI, 2..08 ""RK Dft. I5UITl e. HIG. "" 17110 117.e4HGOB OR 1'100'122'.1577
rj
34
--"----,-~--_..._..,.,-._. .'---'--'.-" - -- .-'~I-...--
I
B'rATE 011' PENNBYLVAN IA
ss.
2 COUNTY 011' DAUPHIN
3
4 I, Donna J. 11'0)(, a Reporter NotarY~Public,
5 authorized to administer oaths within and for the
6 commonwealth at Pennsylvania and take depositions in the
7 trial of causes, do hereby certify that the foregoing is the
8 testimony of BRUCE E. BAYUK.
9 I further certify that before the taking of
10 said d~position, the witness was duly swornl that the
11 questions and answers were taken down stenographically by
12 the said reporter Donna J, Fox, a Reporter Notary-public,
(~)
13
14
15
16
17
18
19
20
21
22
23
24
25
u
approved and agreed to, and afterwards reduced to
typewriting under the direction of the said Reporter,
I further certifY that the proceedings and
evidence contained ful~y and accurately in the notes by me
on the within deposition, and that this copy is a correct
transcript of the same,
In testimony Whereof, I have hereunto
subscribed my hand this 31st day of March, 1997.
~
Donna J, Fox, Reporter
My commission expires!
March 20, 2000,
GIIfUIt . LOIU" "[PORTING UftYICI. UOII '....K 0", IUITI I. HIO, ,,. 17110 '17-'1...-1&01 0.. 1"OO'RaI._un7-
, ,
..
, .
;'
.
.
,\OJII;~M~WI' or BM.~
, '"
THII AOPlIMINT, m.d. th~. II d.y of M.y, 1981, by .nd b.twlln
LIO tNTllIIPIIUlII, INC., I eorporatLolI orqlnh.d .nd eH~lt~nq 'mder thl
llw, of thl commonw.'Lth ot P.n".yLv'n~1 lhere1n.tter ref.rr.d to ..
"hUn') '1101 JAAl!B I<J\MGI/lNNIS, .n .dult 1nd1vLdu'1 lheu~nlftn
rlf.rr.d to .. 'Buyur'l.
WIT NIB SIT H I
WHlIlIB/lB, the SeLl.r 1. th. owner ot elrt.1n r..l property Ind
lmprovem.nt. known .nd numbered .. the SLerr. M.dr. S.loon, 403&
M.rk.t stre.t, lI.mpd.n Town.hLp, Cumbl/rhnd county, Penn.ylv."~.
(here1n.ft.r r.ferred to .. the .Pr.mi....), .nd
WHIIIIB/lS, the Sellar L. the ltc.n..e under lIut.urant L1quor
Lic.n.e No. 20227 i.su.d by the P.nnsylv.nia Liquor Control Bo.rd
.nd oper.t.. I bar .nd r..tlurant f.cil1ty on the Premi.e. under
.1101 licen.e, .nd
WHl!I\E/lS, the Buyer wi.he. to purch... the Prem1..., toqethor
w~th III t1xturel, .ppli.nce., equipment .nd stoek in tr.d. .1tulte
on the Pumhu, .nd whhu to h.ve transferred to h1m ell riqht.
.nd dutie. u"d.r the eXistinq lIest.urant Liquor Licen.e lssued to
SeU.r,
NOW, TIIEl\EfOIlE, in eon.ider.tlon of the mutu.l coven.nt.
eont.1ned here1n, snd lntendinq to be leq.lly bound, the p.rtie.
hereto .qree .. foilow.,
1, SALII AND DELIVERV.
The Seller hereby .qree. to sell .nd deliver to Buyer. .nd
Buyer hereby .qre.. to .cc.pt from Seller, the .tore..id bar .nd
reet.urlnt: f.c11ity, ineludinq .11 fixtures. .pplL.nce., equipm.nt
.nd .tock in tr.de whioh .re .itu.te on the Premi... .nd identLf1.o1
on the 1nventory .tt.ched hereto .. ExhibIt 'A'. S.ller further
~
., 'I 'i"
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:..=.' ~;~~
,:'.~ F11!S/1 A
' :If. '1i
"25,000, dUe in monthly in.t.llment. ..
herein.ft.r provid.d
'l'O'1'/lr. PIJIICHMB PRICB
U~5.00~,00
1425.000.00
4. ~IJMP.'IJM PAYMBNT.
The unp.id prinoip.l amount of 'N.nty 'I'houund Oollau (520,0001,
t09.ther with interut th.reon at the ute of t.n p.ru.nt (10_) p.r
annum, .h.ll ~. paid to S.ll.r in . .in'll. paym.nt within on. y.ar
after th. date of Blttlam,"t. 'I'h. prinuipll amount, t09.thu with
acurued int.r..t, may ~. pr.-paid by Duy.r .t Iny time withQut p.n.lty.
$, JNSTAL~BNT PAYMENTS.
Th. ullpa1d principal amount of Thru Hundred 'N.nty-five '1'houund
COll.n (5320,000), t09.ther with interut It the rate of d.v.n
p.rc.nt CIU) pu annum on the unpaid balanue. or in th. .vent thlt
taK-fr.. mort9a9' flnanoin9 can ~. arran'l.d throu9h an appropriate
indu.trial dev.lopment authority, Lntere.t at the rate of .L9ht and
on.-half perulnt C9 1/2') per annum, .hall be paid in ani hundrld and
ninltun (1171 Iqual monthly in.tallmunt. caluuhted on thl ~..il of
a fift.en (l~) YI.r am~rtitatLon period and in on. (1) final In.tallm.nt
Iqual to the antLre unpaid principal and intlrllt balanc.. Th. firlt
luuh monthly inltallment Ihall bl due and payable fifty (50) daYI aft.r
the date o~ttt.m~and .ach au~alquent inatallment Ihall ~e due and
payable at ani month intervah thereafter. Duyer auknowled'lea that the
inltallment financin'l providld for hereunder i. for a term of tin (101
Ylars and that any principal balancl which rlmains unpaid at the ..pir-
atlon of thl ten (101 year period, to'lether with any accruld lntlrl.t,
mUlt ~e paid In full with the final installment herlllna~oYe provided,
notwithstandln'l the tact that the lnltaUm,"t payment smount. au oth.r-
wile calculatld on th. ba.l. of a flfteln (15) year amortilatlon p.riod,
Tha principal .mount, together with accrued Interest. may be pre-paid
by Buy.r .t any time without penalty.
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G. ~~CUIUTV,
Buyer .hall e~ecute in S.ller'. f.avor .uch ..curity aqreement.
or other doownent., lnollldinq but not Umlted to, .n In.ullmeM
note or note., a puroha.e mon.y mortqeqe .nd Uniform Comm.rolal
Code tlnandnq .t.t.,,1Int., eo Sell.r'. attorney may neoonabiy
determine are n.ce..ary or advl.able to .ecur. Sellor'. riqht to
payment hereunder. All .uch docum~nt. .hell .videnc. Seller'. tir.t
Uen lIourlty lnter..t 11\ tho .ncumb.nd ....t. Honover, Buyer
aoknowledq.. th.t upon .ny default by Buyer under tho term. of thi.
Mr..ment all rlqht, Htle end int.rut in, to and under autauunt
Liquor Licenae No. 20227 .hall forthwith revert to Seller end Seller
.hall heve the rl'lht to meke immediate appllc.tlon for re-tun.t.r
ot the Licenll to Sell~r. Buy.r henby eppolnt. Huth L. Allen,
~.qulr.. .. hi. true .nd lawful attorney, to do all lawful thinq. in
hh .tud, tor the purpou of n..tran.hrrinq the ..id Butll,rant
Liquor Licen.e to Seller upon .ny d.f.ult by Buy.r.
7, SETTLEMENT.
Settl.ment h.r.und.r .hall take pl.ce within forty-eiqht (48) hour.
atter the r.c~ipt of approval for tran.fer of P.nn.ylvania ae.taurant
Llquor Licen.e No. 20227 to Buyer. All dud. and .ecurity dooum.nt.
r.quired her.und.r .hall b. .Keouted by the partie. .t Settlem.nt and
ahall thereupon be r.corded and/or Hled immediately. [;\ the event that
the Penn.ylvania Liquor Control Board refu.e. to tran.fer the Licen.e
to Buyer, thi. Aqreoment .hell be null and void and S.ll.r .hall be
entitled to retain the depo.it mon.y of Ten Thou.and Dollar. ($lO,OOO)
a. liquidated damaq... PO.....ion of the Premi.e. .hall b. qiven to
Buyer at the time of Settlement.
8. TRANSFEB OF TITLE.
Title to the Premi... .hall be convayed to Buy.r at S.ttlement,
-4-
"
,. "'^PIWITUIB or TfTl.~.
~l~ll l. to bl a qood .nd markltabl1 fll .lmpl1 tltl. frl. .nd
ollar from all Illn., but .ijbj~ct to bijlldln9 rl.trlotLon., lonLn9
uquLaUonl, ....m.nt.. rLqht.'of-w.y (lnolijdln9 but not llmltld to
aIL hLvhway rLvht.-of-wayl. r...lvatLon. and r..trLctlon. of rlcord
or vL.Lbll on the Pr.mL... at any tLm. ijp to and LnclijdLnq the tLml
of Sattl.mant, Tltl. .hal1 b. c.rtlflabla by Buy.r'. attorn.y or
Ln.urabll at rlqijlar rat.. by a raputabl. tLtl. Lnaurana. oompany
wLthoijt INcaptLon. objautLonabl. to Bijy.r, S.llar .hall conv.y by
vanara! wananty d.ad .ijbj.ct to tha provL.lon. of thLa Aqu.mant.
Sijyar .hall hava .LNty (601 day. from thl. data to .N.mLna tLtl1
to the proplrty to ba convey.d. If, wLthLn aaLd perLod, Bijy.r do..
not notLfy S.II.r Ln wrLtLnq of any d.f.cte Ln .aLd tLtl., Lt .hall
b. conclu.Lv.ly pn.wn.d thlt theu au no .ijoh d.flct. .nd thlt thl
titl. mute the nqijLument. of thh PaUIIUph~. In c..e mat.rLal
d.faot. Ir.. wLthLn .aLd p.rlod. found to aKllt Ln that tLtl.. and
au ao r.ported to S.Uer. then, If .uch det.ct. IU not cuud by the
S.ll.r wLthLn .INty (601 day. of tha notlc". thL. ^lIr.em.nt .hall
bacoma null and voLd and there shall b. no furth.r lLabLllty ijpon
tha. SaUar or Buyer, whanupon Slllar .hlU return Buyar'a d.pollt
paymant forthwLth.
10, W^R~TIES OF FITNESS,
ENC.pt a. otharwL.a .p.clflcally provLded for heraLn. S.llar maka.
no "Kpraa. or ImplLed warrantLes wLth r..pact to the physical condLtLon
or pos.Lbla u.o. of the subject proporty or sny Lmprovemantl locatad
tharecn, Buyer acknowledqas that Lmprovamant. ore baLnq .01d on an
".. h" buh,
11, ItfSU~CI!,
UntLl tho data of Sottlement, Sell.r .hol1 carry. ot Lt. own
aNpan.a, fLra Lnsuranca on the PremL.e. wLth .Ntended coveraq. andor..-
mant.. In the .v.nt that any Lmprov.m.nt L. destroyad or demaqad by
-,-
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,
, .
fir. or oth.r c..u.lty pr10r to s.tt1.m.nt. 111 in.ur.nc. proc'.41
will b. the 101. prop.rty of d.l1.r, If .114 in.ur.nc. proc..d. Ir.
r.ody.d by hller on or bdor. the dat. of S.ttlem.nt, the total
purch... pr1c. Ih.ll b. r.duc.d by the .mount cf .uch proc..d., In
the .v.nt th.t ..id inlurlnc. proc..d. .r. nct r.cl1v.d by S.ll.r an
or bafor. the d.ta of S.tU.mlnt, SIller .h.ll ..l1qn ita riqht to
coll.ct .l1d proclldl to Buyer .nd the .mount of the total purah...
Pric. Ih.ll remaLn .. h.re1n.bov. It.t.d, In I1ther "v.nt, there
,hill be no duty on the S.11.r to re.tor., rlp.ir or rebuild the
lmprov.m.ntl or .ny 'ppurtenanc'l.
Subl.qu.nt to tha dltl of S.ttl.m.nt, Buy.r .h.ll clrry. .t hl1
own 'Kp.nl', fir. In.ur.nc. on the Pr.mll" w1th .Kt.nd.d coy.rIV.
.ndor..m.ntl Ind n.mlnq S.ll.r al co-ln.ur.d. In the .vlnt th.t .ny
lmprov.mlnt 11 d.ltroYld cr dam.q.d by flre cr othlr c.lualty lub-
I.qu.nt to the d.t. of S.ttl.m.nt, the part Lei Ih.ll aqr.. al to
wh.th.r the lmprov.m.ntl Ihall b. r.ltor.d or r.palr.d by u.. of the
Ln.urlnc. proc..dl or wh.th.r the Lnluranc. proc..dl Ihal1 b. appll.d
to the r.ductlon at the unp.Ld prlncLpal and Lnt.re.t blllnc. due
h.r.und.r. S.ll.r Ihall nct b. r.quir.d to ccntribut. Iny tundl
wh.tlo.v.r Ln the r.palr or r'ltorltlon at dlmlq.d Lmprov.m.ntl.
12, INDEMNIFICATION OF SELLER,
Buyer wUl lnd.OlUILty Ind hold harml... the SIller tram Iny d.btl,
11abl1ltl.., 11.nl, clllml, taK'I, .noumbrlncll, obllqlltlonl or lultl
at Iny klnd Lmpol.d upon Sell.r by r.llon at. b...d upon. arllLnq
out at or clul.d by any let, omL..Lon or other thLnq occurrlnq It Iny
tlm. Itter the dlt. at S.ttl.m.nt Lt clul.d by Iny ICt or omlllLon of
Buy.r ln conn.ctlon wlth hLI UI. of the PremLI'I.
i3, TRANSFER TAXES,
R.al altat. tranlt.r tlKel (Itlt. Ind 10cll1 wLll b. dlvLd.d
.qually betwe.n Buy.r and S.ller, l' to b. plld by Buy.r and l' to
be pald by I.ll.r.
-s-
, ,
14. AOJVGTH!~TG AT B~TTLEME~T,
Real eetate taKe., w.t.r, .ewe. rente, electric and gae, it any,
e"aU be apportlon.d to the det. ot Bettlement. Buyer .hall be reopon-
.ibl. tor all r.al ..tat. taK.., water, lew.r rente, electric and gll
cller".. inaurr.d .ub..quent to the date ot Settlement,
l5, DEFAULT.
Upon d.rault or the payment ot any eum ot principal or inter..t
"er.in a"re.d to be paid tor the Ipace ot thirty (301 daya efter the
.ame .hail become due and payable, or upon reclipt ot notice trom the
Panneylvenia Liquor Control Board ot a eUlpenaion or revocltion (or
intent to .u.pend or revoke) ot Reltaunnt Liquor Licen.. ~o. 20227
tor the .pac. ot thirty (]Ol day. or lon"er, or upon the tilinq ot a
p.tition in bankruptcy pUreuent to pr.ovi.ion. ot the Benkruptcy Cod.
ot 1979, or upon breach ot any other term ot thi. Agreement, the whole
ot the unpaid principal aum, I:oqethar with intere.t. co.t. and oth.r
chargel required to be paid hereunder Ihall, at the option ot Seller,
become immediateLy due and poyabLe. Upon luch detault. the Buyer henby
authoriu. and empoweu any attorney ot allY cou.t ot record to appear
tor him and cont... judqment tor the whole ot luch oum, with I ten
percent (lOt) Ittorney' 0 commio.ion or teeo, hereby wlivinq the ri"ht
ot exemption .nd inquilition .0 tar a. the property her.in delcrib.d,
In addition to other remedies availabl. to Beller her.under, upon
detault by Buyer. Seller m.y declare this Aqroement terminated, null and
void and proceed by action ot toreclooure tor recovery ot the Promi.el
h.r.in conveyed,
16. BROKERB AND AOENTB,
Buy.r .nd Belle. covenant to .ave the other party h.rml.11 trom
any claim to te. or commi..ion by any r.oL .Itat. broker. or agent.
d.alt with in connection with thi. .al., due or to b. due by r.a.on
ot act. ot Buy.r or Beller, a. the ca.. may b..
-7-
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l7, c:oHP~~T~ VNI111llllTAtlDltlll,
Thl. A9rllmlnt qontlln. thl Intlrl undlrltandln9 bltwlln thl
plrtll' hlrlto, and ,uplrolda. .ny prlor wrltt.n or orll 19r1lmontl
bltweln thalli r..p.otlnv thl wrlttln lubjaot matter, lnoludln9 but not
llmltld to the wrltt.n 19r1.m.nt dot.d Hlroh 17, 1981, Ther. Irl
no rlpr...nUt1on./ .9r..m.nt.. erren9.mont. or und.nundln9', oral
or wrltt.n. bltw..n .nd .mon9 thl part1.. h.r.to re1ot1n" to the
.ubjlot IIIItter of thh In.trum.nt whlch au not tully .xpn...d herlln,
U. ~'1l1\8 ""0 AoHltlISTIWI'OIlB.
All rl"ht. 'Jlvln ln thl. lnltrumlnt to Slll.r and BUYlr .hall
.ooruI to thllr hllr.. IXloutor., .dmlnlatrator., ouocl..or. .nd ...19n..
19. CONSTRUCTION.
Thh A9n...nt .h.all bo lnterprlted and con.truld In .coordonol
wlth ~hl Law. of thl Commonwlalth or Ponn.ylvanl..
20. I\!COIIDINQ,
Thh A9rl.m.nt mlY b. reoordld ln the oruc. or the IIlcorder or
Dud. of Cwnb.rland County. Penn....lv.nl.,
21, I\!CllIPT or coP"',
All partl.. h.r.to AeknowL.dge rec.lpt of . fully Ixecut.d oopy
of thi. A9r..mlnt,
ZZ, INTllNTION TO BE BOUl!!1.'
It h thl lnt.nt1on of ..eh of thl port1.. h.uto to b. h9dly
bound by tho tlrm. of thi. A"r..m.nt And to bind thlir Ix.cutor.,
Adminl.trator., h.lr.. lucel..orl .nd ...1"nl,
IN WITNESS WHEIlEOF, tho p.rtl.. hlr.ho h.vI .It thllr ".nd. .nd
.I.l. thl d.y and YI.r flr.t .bovl writtln.
ATTEST I
~.I
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LEO ENTEIIPRISES, INC,
.)/.
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S cr.tary
By
li.t<
. IUer"
I
,
'ftl\ .
Prllldlnt
WITNESS,
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'~..... 'ANNUAL RATE . 0/0 11
"'1~ 1; PAYMENT ';\6911.13
PAYMENT It PAYMENT
1
2
3
1+
0
6
'7
B
.,
10
11
12
13
11+
1~
16
17
18
19
20
21
22
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2B
29
30
31
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40
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42
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3694. 13
3691+,13
3691+ .13
3691+,13
3691+.13
3691+.13
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3691+ .13
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711+.96
721,~~
7:!B.13
731+.61
71+1.~4'
71+6.31+
7eiei.20
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769. 11
776.16
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797.70
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612.39
61 . BI+
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3691+,13 $7.- B311, '1'1
3694.13 13 l:l42,~9
3694,13 I 6~0,31
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369'+.1':\ (714 1/ IH3.91
;~:~: ~:~ ~ff--~~{-':-~i--'--""-3~'i;i7~i~
'3694, l:s-Au('j '/?> 6'7G.Ti--u :rm, 96
3694,l3 .:'iIUDI '706,110 276';,73
36'~1+, 1;\ r:. '11'+. T1 ;!'17'?, '12
2'179 . 17
297;!,61
2'166.00
29B9.32
2'1~:!, tJ9
291+0.79
29J6,93
;~~;'21
.. .::! .02
2U7.97
2910,fl6
2903,60
2l:l96.1+3
2efl9,12
26B 1 , 74
2674 29
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2l:l66,7B
:!B~9 119
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2C336,0~
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3:!42fJei,011
323ei63,ei2
32283ei,39
322100,eia
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320610,70
31960~.00
319qn,t!B'
319:!21+ ,'20--
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- :!1~'174, 3'1
31~176,'70
311+371 ,69
,___ 313l'iei9, 30
n,}LE~9.1+6,
311912,11
311077,17
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308~j26, 16
3071,60 .1';'
30b"tEll>, 213
m-'1if4 , 3~
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369 .13
36911, 13
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3694.13-d-"l; i,_,;jci. .19~J. 10 2692,03 292673.93
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~ 369'1.13 IMJ5,76. 2008,:37 21740<;l...Q.JL
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YOUR LAST PAYMENT WILL
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PRINeI PAL PAYMENT MAt 3t'i7'1.99
INTEREST .32.77
TOTAL PAYMENT , 3"07,76
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LEO ENTEIU'1119t:9, WC., . Penn.ylvan1a bUl1nu. corporation, IUllc...or by
mn94r to E99head, Inc.
(lu"'I.-J!'" ulIlI.,J ,It" Oblll"" IiI' 0.. .lImlll Thrl'l! Ihmdrttd Twenty-rivl Thouland
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Dollars ($ 325, 000) ----------..------..----------liJU./u','laJ'u/ll.I, '~/.Jf"lJiJ, tOqothd
With inl:rlroat .It thl.! rata! at 131tlvon pt!rclJllt (11\' per annUIlI, Qald
principal and 1.ntl!toat to bl! pa.l.d l.n one hundrod ninottttln (11.91 tlqulIl
monthly 1.l1st411mol\tl1 C.:11cuLltt!11 (111 thu lJllUi15 of <l tift!!!!1\ (15) yaaL'
amort1.zation pt!riod and in Qn~ (1) el./ln1 inst.\ll/llont I3qunl to till! lJl\tir
unpa.ld pr.l/lc.lpal and intlJrOIH l1alallclJ, 'l'hl! firut liuo..:h monthly illatall..
nldnl: dha.1l l:J1J duo IJlld paYdblt! lJl\ f\pril 1, 1')8: l\nd e.,ch lSulHitiqul!nt
1n.tallmont .hall bo duo and payahl. at on~ mOllth 1nt.rval. thereartor.
Obl1,or acknowlod,o. that tho 1n.tall~unt payment. provldud ror horo-
under au tor a torm ot ton (lOl yoarB and that any l'rlnclpal balanco
wh1ch roma1n. unpa1,j at tho u~r1rat1on ot tho ton (101 yo.r porlod,
toqother w1th ony accruud lnteru.t, mUBt be pa!.l 1n rull with tho tlnal
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nliCEIHD OCT 0 7 1997
1
W.
I '
... .
IN THre COURT Of' COMMON PLEAS of'
CUMBERLAND COUNTY, PENNSYLVANIA
. . . , .. .
LEO ENTERPRISES, INe"
Plaintiff
v~, No, 96"42~~
JAMES RARAGIANNIS,
Defendant
Civil Aotion " LaW
JAMES RARAGIANNIS,
Plaintitf
v~,
No, 96"4136
LEO ENTERPRISEs, INC"
Defendant
civil Action - Law
fit,
Deposition of I Gary E, f'rench
Taken by
Date
Place
Plaintiff Raragiannis
I September 19, 1997, 2100 p.m,
I 1104 Fernwood Avenue,
camp Hill, Pennsylvania
Eugene W. Halbert,
Registered Professional
Reporter, Notary Public
Before
APPEARANCES I
KOLLAS & RENNEDY
BYI MARY KENNEDY KOLLAS, ~SQUIRE
.,
l
For - Leo Enterprises
t:, llLl, oj i\.z...rJ.4...da, '(!s
C)fqc\:..
_ Lk,'LJ 1-'1, 1'7<17
For - James Karagiannis
KEEFER, WOOD, ALL~N & RAHAL
BYI STEPHEN L, GROSE, ESQUIRE
11/ 1/1, /. ,If,' 1/t',I, 11/ 1'011/1,""; SI I/\'/t'/.
1I.,m~'""~ ;r;'.~IrI..JlllI \",II71;-.,~H.M'''' /' \ ,.MIII.111.11l1:"
READING AND IIGNING Of DEPOSITION
In the ".tt.r 01e
Leo Entec-priaea, Inc., va, Jam13s l<arBgiBnniB,
James Karagiannls va. Leo Entorprises, Inc.
~
Del II forll.rd.d October 10, 1997
fRO"t
Thll Rllportllr who took your dllpobition.
TOt
Th. Witn.bs who wish.s to rll8d his dllposition .nd .ign .....
A. you rll8d your d.position, if you h8vII 8ny corr.ctions to
..k., pl.8.. it..izlI th.. b.low 8nd upon co.pllltion pl.... .ign your
n8.. to thll sign8turll linll. PLEASE DO HOT "ARk THE TRANSCRIPT.
This will bll 8tt8ched to your deposition 8nd furnished to 8ll coun.el
requesting 8 copy of sa.e.
,-
CORRECTIONS TO DEPOSITION
E~plDn8tion
The phrase "at the time," should read "at this tiffi~,".
a er
'rhe
The word "sent" shoUld read "picked",
The word "bonds" should read "bond",
The word "add tonally" shaul e cap ze ,
read "Additionally", and that whole phrase from
6 througn line 9 should be in quotes,
17
4
lnserted atter tne Word long
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WITNESSc
GARY E. FRENCH
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UGNATURE
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DATE SIGNED:
I~ /tl IT"?
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~ 1 MR. OROS";, I have no further question.,
:I Me, KENNEDY, I have nothing.
3 (Whereupon, at 2145 p.m,/ the depollition
" aone 1 uded. )
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WIIIlRIlAS, LEO ENTERPRISES, INC. and JAM/!lS KMAGIANNIS hllve
.nte~ed Lnto Iln Agreement of Sale datud March 17, 1981, and
WHIlREAS, another Agreement of Sale il to be entered into
whLch L. in the proc... of beinq drafted, and
WHEREAS, it i. the desire of the SELLER and the BUYER to
effectuate the terml of the contraot to be drafted, the parties
.et forth thil Letter of Understanding I
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1. SeLLER will allow BUYER to havQ pOlsellion
of the premiles for the purpQle of operatinq the
premisel as of the date hereOf,
2. BUYER shall qive SELLER'S attorney a
check in the amount of $70,000.00,
3. SELLER'S attorney will prepare a deed
and mortqage to be siqned in blsnk by the BELLER.
Upon execution of the deed and mortgage by the
SELLER, SELLER'S attorney is authorized to
dLltribute the sum of $70,000,00 to SELLER, or
on SELLER'S behalf,
4. BUYER shall also, as of this date,
deliver a note in the amount of $20,000.00 to
the, SEl,LER,
5. The parties have agreed to enter
into the drafted Agreement as presently written,
subject to the exceptions herein provided. An
additional exception to said Agreement shall
concern settlement date provided in laid Aqree-
ment. Settlement and transfer of title shall
occur upon issuance of the restaurant liquor
lioense to BUYER, and upon consummation or
disapproval of the IDA loan financing by BUYER,
6. During the period of BUYER'S operation
of the premises prior to the transfer of title,
all prOfit, expense and liability which may
accrue as a result of such operation shall be
\ D~~;,tON
. EXHIBITl' I
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~GREEMENT OF B~LE
THIS ~GREl!:MENT, made thh 17 'll-day of March, 1981. by and
between LEO ENTERPRISES, INC" a corporation organized and existing
under the laws of the Commonwealth of Pennsylvania (hereinafter
referred to as "Beller") and JAMES KARl\GIANNIB, an adult: individual
lhereinaft~r referred to as "Buyer"),
WIT N E SSE T H I
WHEREAS, the Seller is the owner of certain real property and
improvements known and numbered as the Sierra Madre Saloon, 4035
.
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'.,
Market Street, Hampden Township, Cumberland County, Pennsylvania
(hereinafter referred to as the "Premises") I and
I'lIIEREAS, the Seller is the licensee under a retail liquor license
issued by the Commonwealth of Pennsylvania and operates a bar and
restaurant facility on the Premises under such license I and
WHEREAS, the Duyer wishes to purchase the Premises. together with
all fixtures, appliances, equipment and stock in trade s.ltuate on the
Premises, and wishes to purchase all rights under the existing liquor
license issued to Seller,
NOW, THEREFORE, in consideration of the mutual covenants contained
herein, and intending to be legally bound, the Duyer agrees to buy
and Seller agrees to sell and convey to Duyer the Premises herein-
\.J
above described, together with all fixture~ appliances, equipment and
stock in trade situate on the Premises, and 011 Seller's rights under
the existing liquor license issued to Seller, upon the terms and
conditions as follows:
1. PURCHASE PRICE,
The Purchase Price of Four Hundred Twenty-five Thousand Dollars
($425,000.00) shall be paid by Buyer to Seller as fol1owsl
$10,000, due upon the execution of this Agreement, which
amount shall be non-refundable and shall serve as liqui-
dated damages in the event of Buyer's default hereunder,
receipt of which is hereby acknowledged: $10,000.00
I ...12.I...>U...!:l.-...
I DEPOSITIO~
. EXHIBIT ,U
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$70,000, due on or betore'April 30, 19B1, the date
of Settlement I $70,000.00
$20,000, due in one lump-sum within one year after
the date at Settlementl
$20,000.00
$325,000, due in monthly installments as herein-
after providedl
U25,OOO.QO
$425,000.00
2. LUMP-SUM PAYMENT.
The unpaid pri~oipal amount of Twenty Thousand Dollars ($20,000.00)
...
together with interest thereon at the rate of ten peroent (10') per
annum, shall be paid to Seller in one lump-sum payment within one year
after tho date of Settlement. The principal amount, together with
accrued inter.est, may be pr~-~id ~y Buyer at any time without penalty.
If' 'i' I, r~ ;.t "Il'.1.....-<J! i, 'J J. 011 . (.(. '";rf ~ '
3. UlNSTALLMENT PAYMENTS.
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The unpaid principal amount of Three Hundred Twenty-five Thoueand
Dollars ($325,000.00), together with interest thereon ftt the rate of
eleven percent (11') per annum on the unpaid balance, shall be paid,
in part, in monthly installments calculated on the basis of a fifteen
(15) year amortization~~~~od.
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shall be due oR8-m~after the
The first such monthly installment
date of Settlement, and the last Buch
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monthly installment shall be due ten (10) years after the date of
Settlement. Buyer acknowledges that any principal balance which remains
unpaid at the expiration of the ten year period after the date of
Settlement, together with any accrued interest, must be paid in
full with the final installment as hereinabove provided, notwithstanding
the fact that the installment payment amount was calculated on the
basis of a Hfteen (lS) year amortization period. Thill prinoipal amount,
together with accrued interest, may be pre-paid by Buyer at any time
without penalty,
4. GECURIT:l.
Buyer shall execute in Seller's favor such security agreements
or other documents, inclUding, but not limited to, a purchase
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money mortgage, Uniform Commercial Cude financing statements, supple-
mentary aqreements of sale (Which may include provilione whereby
Buyer agreee to surrender to Seller any rights which he may obtain
under Seller's liquor lioense upon his default under this or any
other agreement between the parties), as Seller's attorney may
reasonably determine are neoessar.y or advisablo to secure Seller's
right to payments hereunder.
5. LIQUOR CONTROL BOARD APPROVAL.
The obligaUons evidenced by this Agreement lIhall be contingent
upon approval by the Pennsylvania Iliquor Control, Board of the sale
of Beller's liquor license rights to Buyer.
6. PARTIAL AGREEMElf!'..
The parties hereto acknowledge that this Agreement embodies all
the terms of Bale whioh have been agreed upon to date and that no
oontradictory or supplemental oral understandings exist between the
parties. 'l'he parties further aoknowledge, however, that additional
written document a must be executed in order to set forth other terms
of sale which are essential to the orderly consummation of the sale
transaction contemplated hereunder,
IN WITNESS WHEREOF, the parties hereto have set their hands and
seal a the day and year first above written.
:;!. . )11 '
a..;;r .~r...<y
LEO ENTERPRISES, INC.
By 0f( ~
Pr~eident
"Seller"
WITNESS I
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J:unQS J(ll.rllgiann
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~GRBEMENT OF SALE
TlIIB AGRBi1lMElNT, made this IS.... day of May, 19B1, by and between
LEO ENTERPRISED, INC., a corpornti~n organized and existing ,under the
law/! of the Commonwealth of Pennsylvania (hereinafter referred to as
"Seller") ISnd JAMES KAMOII\NNIS, IIn adult individual (hereinafter
re!errod to as "Ouyer").'
WIT N ~ 5 SET II I
WlIEREA5, the Roll.er 1.11 the owner of certain real property and
improvements known and numbered as the Sierra Madre Saloon, 4035
Market. 5treot, Hampden 'rownahip, Cumberland County, Pennsylvania
(hereinafter referred to na the "Premises"), and
WlIEREA5, the Beller is the licenseo under Restaurant Liquor
License No. 20227 iSSHed by the Pennsylvania Liquor Control Board
and operates a bar and restaurant facility on the Premises under
said license, and
mIEREAS, the Buyer wishes to purchase the Premises, together
with all fixtures, appliances, equipment and stock in trade situate
on the Premises, and wishes to have transferred to him all rights
and duties under the existing Restaurant Liquor License issued to
Beller.
NOW, THEREFORE, in consideration of the mutual covenants
contained herein, and intending to be legally bound, the parties
hereto agree as followsl
1.
,
BALE AND DELIVERY,
The Seller hereby agrees to Boll Bnd deliver to Buyer, and
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Buyer herYby agrees t~ accept from 501ler, the aforesaid bar Ilnd
restaurant facility, including all fixtures, appliances, equipment
and stock in trade which are situate on the Premises and identified
on the inventory attached hereto as Exhibit "A". Seller further
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I DEPOSITION
. EXHIBIT-U;: 1
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a9~... to take .ny and all aor-ion n.o....ry to .fflat . t~an.f.r
to the Buyer of all rights and dutie8 under P8nnsylvania Re.taurlnt
Liquor License No. 20227.
2. PIJRCIIABI!: PRICE.
Upon the terms and conditions he~einlfter stated, Buyer agree.
to pay to Beller the total Purchue Prioe of Four IIundud Twenty-five
Thou.end Dollars C$425,QOO) in consideration of the aale and delivery
of the Ifore.aid ber and restaurant far-illty, said oonsideration to
be allooated a8 follows I
10
Ca) The sum of 'rwenty-five Thousand Dollars C$25,000)
for the fixtures, appliances, equipment and stook in
trede identified on the inventory attaohed hereto as
I!lxhi~it nAn,
Cb) The sum of Twenty-two Thousand Five Hundred
Dollers C$22,500) for the land upon which the bar and
re.taurant facility is situate, and
Cc) The sum oJ! Three IIundred Seventy-seven Thou8and
l"J.v~ HUlllheJ Do.lartl
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houses the bar and restaurant facility.
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3. ~RMS OF PAYMENT.
The total Purchaoe Price of Four Ilundred Twenty-five Thousand
Dollers ($425,000) shall be paid by Buyer to Seller as follows I
$10,000, due prior to the execution of this
Agreement, which amount is non-refund-
able and shall serve as liquidated
damages in the event of Buyer's
default hereunder, receipt of which is
hereby acknowledged
$10,000.00
,
$70,000, due on or befo:a the date of Settle-
ment
$70,000.00
$20,000, together with inte~est of 10\ per
annum due in a single payment within
one ypar after the date of Settlemont
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TOTAL PURCIIASE PRICE
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$425,000.00
4. LUMP-SUM PAYM!tt!.
Th. unpaid principal amount af Twenty Thousand Dollars ($20,000),
toqether with interest thereon at the rate 'of ten percent (10') per
annum, shall be pllid to Seller in II single payment within one year
,
after the date of Settlement. The principal llmount, together with
accrued interest, may be pre-pllid by Duyer at any time without penalty.
5. INSTALLMENT PAYMENTS.
The unpaid principal amount of 'rhree lIundred Twenty-five Thousand
Dollars ($325,000), together with interellt at the rate of eleven
,~ percent (11') per annum on the unpaid balance, or in the event that
tax-free mortgage financing can be arranged throllgh an appropriate
industrial development authority, interest at the rate of eight and
one-half percent (8 1/2') per annum, shall be paid in one hundrod and
nineteen (119) equal monthly instal.lments calculated on the basis of
a fitteen Il!!) YOdr BJ\\ortizr.tion period ana in olle (1) tinal installment
equal to the entir'e unpaid principal and interost blllance. The first
such monthly installment shall be due and payable fifty (50) days after
the date of Settlement and each subsequent installment shall be due and
payable at one month intervals thereafter, Buyer acknowledges that the
installment financing provided for hereunder is for a term of ten (10)
years and that any principal balance which remains unpaid at the expir-
,
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at ion of the ten (10) year period, together with any accrued interest,
mu~t be paid in full ~ith the final inatallment hereinabove provided,
notw1thLtanding the fact that the installment payment amounts are other-
wise ca.'.culated on the basis of a fifteen (15) year amortization period.
Tho princlpal .'1mount, togeth'n' with c.ccl:.Ied interest, may be pre-paid
by Buyer at any ~ime without penalty.
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Buyer shall execute in Seller's favor SUch .ecurity 8greement.
or other documents, including but not limited to, an in.tallment
note or note., a purchaee money mortgage and Uniform Commercial
Code financing statements, as Seller's attorney may reasonsbly
detarmine are necessary or advisable to seoure Seller'. right to
payment hereunder. All such documants shall evidence Seller's fir.t
,
lien .ecurity intereB~ in the encumbered asset. Moreover, Buyer
acknOWledges that upon any default by Buyer under the terms of this
.
Agreement all right, title and interest in, to and under Reetaurant
Liquor Licenee No. 20227 shall forthwith revert to Seller and Seller
ehall have the right to make immediate epplication for re-tranefer
~ qf the License to Beller. Buyer hereby appoints Heath L. Allen,
Esquire, a. his true and lawful attorney, to do all lawful thinge in
his Rtead, for the purpose of re-transferring the said Restaurant
Liquor License to Seller upon any default by Buyer.
7. SETTLEMENT.
Sfltt~ement hereunder el.al.i. take place within forty-eigr.t (4S) houre
after the receipt of approval for transfer of Penneylvania Restaurant
Liquor License No. 20227 to nuyer. All deeds and security documents
required hereunder shall. be executed by the parties at Settlement and
shall thereupon be recorded and/or filed immediately. In the event that
the Pennsylvania Liquor Control Uoard refuses to transfer the License
to Buyer, this ^greement, shall be null and void and Beller shall be
antitled to retain the deposit money of Ten Thousand Dollars ($10,000)
'-' as l~quidated damages. Possession of the Premises shall be given to
Buyer at the time of Settlement.
S. tRANSFER OF TITLE.
Titla to ~he Premises shall be uonveyed to Buyer at S.t~lement.
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9.
WARRANTIES OF TITL~.
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Title ia to be a good and matketablB he ai.mplB tit:lr~v1' 'fre~ and
.fJff'. 'J
claar from all liens, but subject to building restriotion.;' zoning
regulations, easements, rights-of-way (including but not limitsd to
all highway ~ights.of-wsy), reservations and restriotions of reoord
or visible on the Premises at any time up ~o and inoluding the time
of Settlement. Title ohall be certifiable by Buyer's attorne~or
,'."1
innurable at regulsr tateo by a reputable title insurance company
without exoeptiono objectionable to Uuyer. Seller ahall convey by
general warranty deed subject to the provisions of this Agreement.
Buyer shall have sixty (60) days from thie date to examine title
to the property to be conveyed. If, within aaid period, Buyer does
~ not notify Seller in writing of any defects in said title, it shall
be oonolusively presumed that there are no suoh defeots and that the
title meets the requirements of this Paragraph 9. In case material
defeats arc, within said period, found to exist in that title, and
are 80 reported to Beller, then, if such defects are not cured by the
Beller wL:hin sihty \60) days ur the noti<.:o, this Agreement shall,
beoome null and void and there shall be no further liability upon
the Seller or Buyer, whereupon Beller shall return Buyer's deposit
payment forthwith.
10. WARRANTIES OF FITNESS,
.
Except as otherwise specifically provided for herein, Seller makes
no expreos or implied warranties with respect to the physical condition
or possible uses of the subject property or any improvements located
thereon, Buyer acknowledge8 that improvements are being sold on an
"as io" basis,
11. INSURANCE.
Until the dat~ of eettlemen'~, :Jeller ahall carr~', at ita olm
expense, fire insurance on the Premises with extended coverage endorse-
ments. In the event that any improvement is destroyed or damaged by
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fiw. O~ othBW oa.u.lty p~iow to Settlement, all in.urana. p~oo..d.
will be the aole property ot Seller. It said insuranoe ~~eed. are
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reodved by Beller on or before the date ot Settlement, . total
Purohase Prioe shall be reduoed by the amount ot suoh prooeed.. In
the event that said insuranoe prooeeds are not reoeived by Seller on
,
or betore the date at Settlement, Seller shall a..ign its right to
co11eot said prooeeds to Buyer and the amount at the total Pur-chase
, '.
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Prioe shall remaj.n 811 hereinabove stated. In either event, there
shall be no duty on th~ Seller to restore, repair or rebuild the
improvements or any appurtenanoes.
Subsequent to the date ot Settlement, auyer shsll carry, at his
own expenee, tire insuranoe on the Premises with extended coverage
t.~' endorsements And naming Seller as co-insured. In the event that any
improvement is destroyed or damaged by tire or other casualty sub-
sequent to the date at Settlement, the parHes shall agree as to
whether the improvements shall be restored cr repaired by use ot the
insuranoe prooeeds or whether the insurance prooeeds shall be applied
~o the red..actiun of tlaoe unpaid principal and interest balancl! due
hereunder. Seller shall not be required to contribute any tunds
,
whatsoever in the repair or restoration ot damaged improvements.
12. INDEMNIFICATION OF SELLER.
Buyer will indemnity and hold harmless the Seller from any debto,
liabilities, liens, claims, taxes, encumbrances, obligations or suits
ot any kind imposed upon Seller by reason of, based upon, arising
out of or caused by any act, omission or other thi~g occurring at any
.., time atter the date of Settlement if caused by any act or omission ot
Buyer in connection with his use of the Premises.
13. TRANSFER T^X~S.
Real eatate trdn~fer tuxes istate and local) will be divided
equally between Buyer and Seller, l' to be paid by Buyer and l' to
be paid by Seller.
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14.
ADJUSTMENTS AT SETTLIM!~r.
R.el eatate taxe., water, .ewer renta, el.ctric and 19'a, if any,
ahall be appcrtioned to the date ot Settlement. Buyer ahell be reapon-
lible tor all real estate taxeo, water, aewer rents, electric and gas
oharqes inourred subsequent to the date ot Settlement. ,I
15. D~rAULT.
Upon detault ot the payment ot any sum ot prinoipel or intereat
,
herein aqreed to be paid for the spaoe ot thirty (30) days atter the
aame shall beoome due and payable, or upon rsoeipt ot notice trom the
Pennsylvania Liquor Control Board ot a suspsnsion or revooation Cor
intent to suspend or revoke) of Restaurant Liquor License No. 20227
for the space of thirty (30) days or longer, or upon the tiling of a
petition in bankruptoy pursuant to proviaions of the Bankruptcy Code
ot 1979, or upon breaoh of any other term ot this Agreement, the whole
of tho unpaid principal sum, togethsr with interest, costs and other
charges required to be paid hereundor shall, at the option of Seller,
become immediately due and payabl~. Upon such detault, the Buyer hereby
authurizes and em~'oweLs any attorney IJf an~ court of record to appear
for him and confess judgment for the whole of such sum, with a ten
percent (10') attorney's commission or fees, hereby waiving the right
of exemption and inquisition so far as the property herein deacribed.
In addition to other remedies available to Seller hereundor, upon
default by Buyer, Seller may declare this Agreement terminated, null and
void and proceed by action of foreclosure for recovery of the Premises
herein conveyed.
16.
BROKE ItS AND AGENTS,.
Buyer and Seller covenant to save the other party harmles. from
any claim to fee or commission by any real estate brokers or agent.
dealt with in connection with this sale, due or to be due by reason
of acts of Buyer or Seller, as the case may be.
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undu...ndin, ba'Wfeh'''tiha ~
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partie. hereto, and supercedea any prior written or,oral~9reement.
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in"c~luAinn ft,/. no.
between them respecting the written subject matter, u ~ DU~ ~
17. ~OHPLETE UNDERSTANPIN~.
~hi. ^9~aemen' aan..in. .he .n'i~.
, '
limited to the written agreement dated March l7~ 1981. There are
.no representations, agreementa, arrangements or ~derstan'.q., ..oral
or written, between and among the parties hereto relatin40 the
sUbjeot matter of this il)strument which are not fully expreued herein.
18. HBIRS AND ADMINISTRATORS.
"
All rights given in thh inlltrument to Seller and Buyer shall
aocrue to their heirs, executors, administrator., lluccessora and a..igns.
19. CONBTRUCTION.
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This Agreement shall be interpreted and conlltrued in acoordance
'" with the laws of the Commonwealth of Pennllylvania.
20. RECORDING.
This Agreement may be reoorded in the Office of the Reoorder of
Deeds of Cumberland County, Pennsylvania.
21. RECEIPT OF CEf!.
All p.:trtiu h'lreto acknOWledge receipt of a fully ~xsCUfl:ed copy
of thill Agreement.
22. INTENTION TO BE BOUND.
It is the intention of each of the pnrties hereto to be legally
bound by the terms of this Agreement and to bind their executors,
administrators, heira, llucceSBors and allsi9ns.
IN WITNESS WJlEREOf', the I parties hereto have set their hands and
oeals the day and year first above written.
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ATTEST I
I
LEO ENTERPRISES, INC.
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S cretary
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President
WITNESS I
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,',
i
"
, i
6. Mr. Bayuk had no conversations with Mr, Karagiannis about
the closing that took place in February, 198~, (Bayuk
Deposition - Page 32, linec 2 - 5)
7. Mr, Bayuk has no knowledge of anything other than "Bayuk
Exhibit 2" that would shed light on whether oj!' not the
payments made prior to February of 1982, were to be
oonsidered payments under the bond dated February 24, 19B2.
(Bayuk Oeposition - I'age J:J, lines J - lJ)
B. Mr, Kollas had no direct co~nunication6 with Mr, Leo
regarding thla transaction. (Kollna Doposition - Pdges 3
and 4, linos 25 and 1 - 5)
9. There were discussions between Mr. Kollas and Mr, French,
counsel for Leo Enterprises, in the period of July 19B1
through February of 1982, regarding the outstanding issue
with IDA Financing. (Kollas Deposition - I'age 6, lines 13 -
lB) ,
10. Mr. Karagiannis has been involved in business transactions
before and had previously reviewed notes and mortgages.
(Karagiannis Deposition - Page 7, lines 9 through 13)
11. Mr, Karagiannis did not have discussions with anyone other
than Al Leo about buying the sierra Madre, (Karag iannis
Oeposition Page B, lines 6 through 14)
12. Mr. Leo told Mr. Karagiannis that he would give him "two
days gratis" and allowed Mr. Karaqiannis to operate the
sierra Madre starting May 12, 19B1. (Karagiannis Page 11,
lines lB - 20)
13. The Agreement of Gale dated May 15, 19B1 ("Bayuk Exhibit 1")
was the controlling document for the transaction,
(Karagiannis Deposition - Page lJ, lines 23 - 25 and Page
14, line 1)
14, There is no dispute over any of the terms or conditions in
the Agreement of Sale other than the $325,000 installment
payment. (Karagiannis Deposition - rage 14, linea 15
through 22)
15. Mr, Karagiannis took possession of the Sierra Madre on
Friday night, May 12, 19B1, not at the time of settlement.
(Karagiannis Deposition - Page 11, lines 13 - 22)
2
:16.
Mr. Karagiannis admits that
whioh is "Bayuk Exhibit 3".
17, lines 19 - 25)
17. The bond was signed in the presenoe ot Mr, ~ollas and Mr,
Karagiannis contirmed that It was Mr. Kollas' signature,
(Karagiannis DepoBition - Page 18, lines 1 - 4)
it is his signature on the bond,
(Karagiannis Deposition - Page
18. Mr. Karagiannls indicated that his interpretation of the
bond was immaterial. His opinion was that payments from May
15, 1981, should have been applied to the $325,000, not from
February, 1962. (KaragianniB Deposition - Page 21,
lines 12 - 19)
19,
Mr. Karaglannis confirmed that Mr. Bayuk had no
contact with Mr. Loa and no involvement in this
than setting up tho books tor Mr. Karaqinnnis.
DepoBition - Page 27, linea 1 - U)
direct
matter other
(Karagiannis
20. From November, 1981 through February, 1962, Mr. ~ollas was
still working to obtain IDA tinancing tor. Mr. Karagiannisl
they were turned down in late January, 1,982, (l<aragiannis
Deposition - Page 28, lines 4 - 8)
21. The exchange ot tho deed, mortgage and the note did not
occur until February 24, 1982. (KaragianniB Deposition -
Page 30, lines 3 - 6)
22. Mr. Karagiannis had no discussions with Mr. Leo at the
cloBing or. around the time at Closing in February, 1982 or
after the Closing, regarding the nature at the monthly
payments he made from July, 1981, through February, 1982.
(Karagiannis Deposition - Page 32, lines 9 - 25 and Page 33,
line 1:
23. The Agreement of Sale dated May 15, 1981 and the bond signed
by Mr. Karagiannis, both indicate that the installment loan
was to be paid over a ten year period with a balloon payment
at the end of ten years. (Karagiannis Deposition - Page 34,
lines 13 - 25)
24. Mr. Karagiannis nover had any discussions with Mr. Leo from
the spring of 1981 until Mr. Leo'S death regarding the
payments tram July, 1981 through February, 1982 and whether
they were to be credited to the monies duo under the bond.
(Karagiannis Deposition Page 36, lines 2 - 13)
3
a~. Mr, Karagiannis gave only on~ mortgage to Luo Enterprises,
and that was the mortgage dated February 24, 1982.
(Karagiannis Deposition - Page 37, lines 12 - 21)
a6. Mr, French mailed the proposed deed, mortgage and bond to
Mr. Kollae the day before aettlement, so that he would have
an opportunity to review them Wednesday morning before the
settlement, (Frllnoh Deposition - Page 13, lines 6 - 13)
27. Mr, Frenoh had previously reoeived a copy at the letter
dated November 20, 1981, tram Mr. Kallas, to Mr. Henry
coyne, whioh has been marked as "Bayuk Exhibit 5",
(French Peposition - Page 14, lines 23 - 25 and Page 15,
line8 1 - 8)
28. An Agreement of Sale was executed on May 15, 1981 between
James Karagiannis and Leo Entarprises, 1nc" tor the
transfer at the Sierra Madre. A tru~ and correct copy at
Which is attaohed hereto as Exhibit "A",
29. Under the Agreement of Sale, the total purchase prioe was
$425,000 to be paid as followSI
(a) $10,000 due prior to the execution at the Agreement of
Salel and
(b) $70,000 due on or betore the date ot Settlementl and
(c) $20,000 together with interest at 10\ per annum due in
a single payment within one year atter the date at
settlementl and
(d) $325,000 due in monthly installments as provided in
Paragraph 5 at the Agreement at Sale. See Exhibit "A".
30. The parties agroe that the payments delineated in 2(a) 2(b)
and 2(c) were made as called for in the Agr.eement of Sale.
Specifically the $70,000 was paid trom Gary French's escrow
account on May 29, 1981 as evidenced by a letter dated May
29, 1981 and attached hereto as Exhibit "B".
31. On or about July 29, 1981 the Pennsylvania Liquor Control
Board approved the application of James Karagiannis for the
transfer of the liquor license tram Leo Enterprises, 1nc, A
true and correct copy of the notitication letter is attached
hereto as Exhibit "C". (Kallas Deposition - Page 5,
line 13)
4
32, On or about JUly 29, 1981 Mr. ~araqianniB' attorney lent a
letter to Gary Frenoh, a tru~ and oorrect oopy of whioh is
attached hereto as Exhibit ~D~.
33. On or about July 31, 1981 James Koragiannis made a payment
of $3,694,13 to Leo Enterprises, Inc., (Bayuk Deposition -
paqe 13, line 22 throuqh Page 15, line 1l)
34. Mr. Karagiannis made payments of $3,694.13 to Leo
Enterprises, Inc. at one month intervals thereafter for. th.
next 178 montha. (Ibid.)
35. Gary French responded to William Kollas' July 29, 1981
oorrespondence with a letter dated July 31, 1981, a true and
correct c,opy of which is attached hereto as Exhibit ~E~,
36. William Kollas responded to Gary French's correspondenoe
with a letter dated August 3, 1981, a true and correot copy
of which is attached hereto as Exhibit ~P~.
37, On or about November 20, 1981, William C. Kollas wrote a
letter to Henry coyne, Esg" the solicitor for Hampden
Township, a true and correct copy of which is attached
hereto as Exhibit "G".
38. The Hampden Township Industrial Development Authority denied
tax free status on the loan. (Karagiannis Deposition - paqe
28, lines 1 through 16)
39. On or about February 24, 1982 the parties exchanged the
deed, a Bond and Warrant, a Mortgage and UCC Financing
statements. A true and correct copy of the Bond and Warrant
is attached hereto as Exhibit "H," (French Deposition -
paqe 10, lines 20 through 25, Page 11, 11nes 1 throuqh 17)
40. On or about February 24, 1982, Gary French sent a letter to
William Kollas, a true and correct copy of which is attached
hereto as Exhibit "I",
41. The parties stipulate to the authenticity of all marked
Exhibits submitted to the Court and agree that the written
documents speak for themselves.
5
MIlIIHINT 0' 'ALl
, ...
THI. AGIlIIHINT, ..da t~ia 11 day of Hay, 1..L, by Ind batwaan
LaO INTI..RI.I., lNq" I corporltion or9lni.ad Ind aMi.tln, undlr t~1
llWI of t~a C~nwaILt~ of 'annayLvlnil l~arainlftar r.rarrad to al
""lLar"1 Ind JNlII IlAMotMIlfU, In Idult 1ndlvldual. 1~lfllnaftn
rafarrad to al .'uyar.'.
WIT N I I 8 I T II
WHIRlAI, tha 'aLlar i. tha ownar of eartaln ra.l proparty and
i~prova'ant. known and nu~arad aa the Slarra Hadra Slloon, 4015
Hlrkat Itr..t, Hampdan Town.hip, Cumb.rland County, 'annlylv.nla
lh.rainartar r.farr.d to I' the ..r.mi....I' Ind
WHEREAI, the I.ll.r i. the llean... undar fta.taurlnt L1quor
Lie.n.. Ho, 20227 i..u.d by the 'ann.ylv.ni. Liquor Control lo.rd
.nd op.rltaa . b.r and r..tlurlnt rle1l1ty on tha pr.mi... und.r
.11d lie.n.., Ind
WHEREAI, tha luy.r wi.h.. to purehl" tha Pra~ia.., to,.th.r
with III fixtur.., applilne,., equip~ant Ind atoek in trlda litulta
on the 'rami.a., Ind w1.h.. to hlva trln.f.rrad to hi~ .11 ri9hta
Ind duti.a und.r the axi.t1n, fta.tlurlnt Liquor Lie.na. i..uad to
lallar,
HOW, THEREFORE, 1n eon.id.ratlon of ~ha mutuIl covanlnt.
cont.inad h.r.ln, Ind 1nt.ndin, to b. 1',ll1y bound, the p.rtia.
h.r.to I,raa II follow.,
I, IALE AND DELIVERY.
Th. l.l1.r h.r.by .,r... to ..11 Ind d.liv.r to luy.r, Ind
luyar h.raby I,r.al to Iccapt fro~ ..llar, tha Ifora'lid blr .nd
r..t.urlnt flcil1ty, includin, III fixtur.., Ip,lilnc.., equipmant
Ind .tock in trld. which .ra .ltult. on the .r.mi..a and id.nt1fi.d
on the 1nvlntory attach.d harlto al Exhib1t .A., S.11.r furt~ar
EXHIBIT
B-
AU..IJ.".INnwnONAL
.aa.,aaa, du. In ~nth1y In.tllt..ntl I'
h.r.ln,'t.r prov1d.d
roTA:. 'U~CIIMI nlCI
'J21.000.00
un,oao.ao
4, rmtr-'lJilI 'IIrtIIllT.
Th. unplld pr1nclpll AMount ot Tw.nty Thou.lnd Dol1lr. l.aa,OOO),
tci,.ther wlth lnterut thereon ., the ute ot ten perc.nt 1101) p.1'
Innw., Ihll1 be plld to _.11.r 1n I 11nvl1 pl~.nt wlthln on. 1"11'
Irt.1' the dl" ot I.ttlem.n,. The prlnclpel &moun', '0gether with
locru.d lnt.r.e" "1' be pre-plld by luyer ., Iny tlMe wlthout penllty,
I. 1"'TA:.LHIllT 'AYHZllTS.
Th. unplld prlnclpll -.cun' ot Thl'l' Kundr.d TwentY.Ilv. ~U'lnd
Dollll" l'la"aOO). tovethel' wlth lntere.t It the I'lt. ot ellv.n
perClnt 1111) per annUlI on the unpdd balenc., 01' ln the event thlt
t.I'-'rl' ~rtVlVI 11nlnclnv cln be Irrlnved throuvh In Ipproprllte
ln4u.trlll develop..nt luthorlty, In'erllt It the rltl ot .lvht Ind
on.-hIU PlI'cent II lIlt) I'll' InnUII, Ihlll ba pdd ln 0"1 hundred Ind
nlnetun illS) equo1 IlOnthl~ lnatlll..ent. Cll1cUhted on the bid. 01
I rUtun Ill) yur IIIIOrt1latlon pedOcS Ind ln une III 'lnl1 lnltdl..nt
~ull to the .ntlr. unplld prlnCllpll Ind lntlre.' bal.nce, Thl 'll'lt
'~oh ~nthly lnltll1"n' Ihll1 ba dUI and plYlbl. Iltty ISO) dlY' l't.1'
thl dati 01 Ilttl...n' oIlId uch .ubuqu.nt lnlteU..nt .hlll be dUI .nd
P.yable It onl aonth lnt.rvlh thuelt'lr. luy.r Icllnowlldv'l thlt the
In.tI11..nt I1nlnclnv prov1ded lor h'l'.undu h lor I tlra 01 t.n nO)
Y..u and thlt any prlnclpal bllencl which ulldnl unpdd .t thl Ill'plr-
IUcn of thl ten !la) 1"11' period, to<Jethu "lth Iny ICCl'llld lntenlt,
.u.t be plld In lull "lth the Ilnll lnltll1..nt hlrllnlbov. provided,
notwlth'~lndlnv the Ilct thl' the In.tll1..nt plr-.n' a.ount. Ire oth.r-
"1.. cllClUllt..s on the bl.l. ot I 11tt..n 11') Y.lr .-ortl.ltlon period.
Th. prlnCllpl1 laount, toveth.r with Iccru.d lnt.r..t, "1' be pr,.pIld
by luy.r It Iny U.. "ithout penalty,
-a-
\
., lIeURIT\'.
.~y.r Ihall 'N'CUtl !n ..11'1"1 t.vor luch I.cur!ty ,vr..Nlntl
.' Dr other docuaentl, !nclud!nv but not l!.!t.d to, In !nlt.ll.ent
notl Dr notel, I purcha'l ~ney ftOrtVlve Ind Un!tor. CONmerc!al
Code t!n.nc!nv Itlt.ment., I' S.ller'. attorney .ay re.lon.bly
dlt.rm!n. '1', n.c....ry or .dvl.abl. to ..cur. ..11.1'" rlvht to
p.ym.nt h.reund.r, All .uch docum.nt. .hll1 .vld.nc. S.ll.r'. t!r.t
U.n IIcurlty J,nterllt ln the .ncWlb.nd ....t. Hor.ov.r, hv.r
ackllowl.dV" that upon any d.flult by Buyer under the t~trm. ot thh
Avr..m.nt .11 r!vht, tltl. .nd lnt.r..t In, to .~d und.r ~..t'~~'nt
L!quor L!o.n.. No. ZOZZ7 .h.l1 torthwlth r.v.rt to ..1111' .nd .11111'
.h.ll have the r!vht to make l~.d!lt. .ppl!c.tlon tor r.-tr.n.t.r
ot the Llo.n.. to S.11.r. Buy.r h.r.by .ppolnt. H..th L, All.n,
..qub., II hh true .nd, l.wful Ittorney, t" do IU laWful thln9' !n
h!. .t..d, tor the purpo.. of r.-tr.n.t.rrln9 the ..ld ~.t.urant
L!quor Llo.n.. to S.ll.r upon Iny d.f.ult by Buyer,
7. IITTLlHltfT.
'Ittllm.nt h.r.und.r .hll1 take pl.c. w!th!n forty-.lvht 141' hour.
attlr the r.celpt ot 'pprov.l tor tr.n.t.r ot P.nn.ylv.n!. ~.tlur.nt
Llquor L!o.n.. No. ZOZZ7 to Buy.r. All d..d. and ..curlty docum.nt.
r.qu!rld h.rlund.r .h.ll be .N.cut.d by the plrtl.. .t s.ttl.m.nt and
.hall th.r.upon b. r.cord.d .nd/or t!l.d lmm.dlat.ly, In the .v.nt that
thl P.nn.ylvan!a Llquor Control Baird rltu... to tr.n.t.r the Llc.n..
to luy.r, thl. Avr....nt .h.ll b. null .nd YO!d 'nd S.ll.r .hlll be
.ntltl.d to r.taln the d.po.!t ~n.y ot T.n Thou..nd Dol1.r. 1110,000)
.. l1qu!datld d.mav... PO.....lqn of the pr.ml... .hall be vlvln to
luy.r at thl t!m. ot S.ttl.m.nt.
I. T~srlR or TITLI.
Tltl. to the Pr.ml... .h.ll bl conv.y.d to Buy.r at I.ttl.m.nt,
'-
-4-
g, 1I^,11Wl1UB or 'J'IT/.~.
T1tl. 1. to b. . 900d .nd m.~k.t.bl. f.. .lmpl. t1tl. f~.. .nd
cl..r tro~ all 11.n., but .ubj.ct to bu11d1n9 ~..t~1ot10n., lon1n9
r'9ulat10n., ....m.nt., ~19btl.of-woy (lncludln9 but not 11m1t.d to
all h19hway ~19ht..of-way), ~~,,~vation. 'nd ~..t~ictlon. of ~.oord
or y1.1bl. on the Pr.ml... at any time up to and lncludln9 the time
of 81tthm.nt, TltL. .hall b. C.~tltlabl. by Buyer'. attorn.y o~
1n'U~.bl. at ~'9ul.~ ~at.. by a ~.put.bl. title in,u~'nc. comp.ny
w1thout lHo.pHon. obj.ctlon'abl. to Buyer. Seller .hall conv.y by
9.n.~.1 w'...nty d..d .ubj.ct to the p~ovl.lon. of thi. Aq~..m'nt.
Buy.~ .h.ll h.v. .il<ty (60) day. f~om tH. dat., to 'Xlmin. Utl.
to the p~operty to be conveyed. If, ...ithln .dd period, Buyer do..
not notify Sell.. In "'.itinq of any d.fect. In .aid titl., lt .h.l1
b. conolullvdy pre.um.d th.t there are no ,uch d.f.ct. and that th.
Uti. mutt the requir.m.nt. of thi. Paraqraph 9. In cu. mat.~ia1
d.f.ot. .~', within oald p.~lcd, found to 'l<lot In that titl., .nd
are .0 report.d to S.ll.~, th.n, 1 f .uch d.f.ct. are not cured by the
S.II.~ ...ithin .ll<ty (60) dayo of the notlc., thl. Aq~..m.nt .h.l1
b.com. null .nd void ond th..e .hall bo no fu~th.~ liability upon
th. S.11.. o~ Buy.~, wh.~.upon S.II.~ .hal1 ~.tu~n Buy.~.. d.po.1t
paym.nt fo~thwith.
10. WARRANTIES OF FITNESS.
BlCC.pt u otherwl.. .p.dflcally p~ovld.d fo~ h'~lln, S.ll.~ ...k..
no 'lCp~'I' o~ impli.d ....r~anti.. with ~"pect to the phy.ical condit10n
or pa..1bl. UI.. of the .ubj.ct p~op.rty o~ any 1mp~ov'~nt. laoat.d
th.r.on. Buy.~ ackno"'l.dq.. that Imp~ov.m.nt. .~. b.inq .old on an
"a. h. buil.
11. INSUIWlCE.
Until the date of Sottl.m.nt, S.II.~ .hall CI~~y, at it. own
'l<p.n.., ti~. in,u~lnc. On tho P~.mi... ...ith .xt.nd.d cov'~lq. ,.ndar..-
ment., In the .v.nt that any imp~oY.m'nt i. d..t~oy.d o~ dam.qed by
-,-
fir. or oth.r c..u.lty prior to S.ttl.m.nt, .11 In.ur.na. proo..d.
wUL be the .01. property of S.Ll.r, If uld In.uranc. proclld. .re
r.cdv.d by Seller on or b.fore the d.t. of Settl.m.nt, th~ total
'urch... h1c. .h.ll b. reduo.d by the .mount of .1I0h proclld.. In
the .v.nt th.t ..Id In.ur.no. proo~ed. .r. not r.o.ly.d by S.11.r on
or befora the d.t. of S.ttln"nt, Seller .h.ll .ulin H. rlvht to
ool1.ot ..Id proc..d. to Duyer .nd tho amount of tho total Puroh...
Prlo. .hall umaln II henlnabov. .tated, In either .v.nt, th.re
.h.l1 b. no duty on the S.11er to r..tor., r.p.lr or r.bulld the
Improv.m.nt. or .ny 'ppurt.nano..,
Bub..qu.nt to the d.t. cf S.ttl.m.nt, Buy.r .h.ll c.rry, .t hi.
own up.n.., fln In.urance on the Praml... with .xtended cov.raq.
.ndorum.nt. .nd na,.lnv Belin II co~ln,ured, In the .v.nt that .ny
Improv.ment I. d..troyed or damaied by fire or oth.r oa.ualty .ub~
..quent to the d.t. of B.ttl.mont, the p.rtl.. .hall aqree a. to
wh.ther the Improvem.nt. .h.ll b. rutored or repaired by uu of tho
In.ur.nc. proo..d. or wh.th.r the In.urano. proceed. .hall be .ppll.d
to the r.ductlon of the unp.ld principal and Int.re.t b.l.nc. due
h.r.und.r. S.11.r .h.ll not b. r.qulr.d to contribute .ny fund.
wh.t.o.v.r In the r.p.lr or r..tor.tlon of d.m'ied Improv.ment..
12, INDEMNIFICATION O~~,
Buy.r will Indemnify .nd hold harmle.. the S.ll.r from any d.bt.,
II.bllltl.., ll.n., cl.lm., t.x.., .ncumbrance.. obllq.tlon. or .ult.
of .ny kind impo..d upon Seller by re..on of, ba..d upon. arl.lnq
out of or c.u..d by .ny act, oml..lon or olh.r thlnq occurrlnq .t any
tlm. .fter the data of Settl.m.nt If cau.od by .ny .ct or oml..lon of
Buy.r In conn.ctlon with hi. u.e of the Pr.ml....
ll, TRANSFER TAX~.
RIaL ..t.t. tr.n.f.r tax.. (.tat. .nd local) will b. dlvld.d
.qually betw..n Buy.r and S.11.r, l' to b. p.ld by Buy.r .nd 1. to
be paid by B.ller,
-s-
14 ~ ~U'THlNT. AT SITTLI....tfT.
ft.al .atatl taNia, wat.r, ,.wlr rent., .1.ctrlc and "" If any,
.hall b. apportlcned tc th. dlt. cf I.ttl..lnt. luy.r .hal1 b. r"pon-
.1bla for all rial ..tat. taN", wat.r, ..w.r r.nt., .1.otrlc and ,a.
ohar,.. lncurr.d .ub..qu.nt to the dati of I.ttl.m.nt.
U. D.r~III.'r.
Upon d.fault of the p.ym.nt cf any .um of prlnclpal or lnt.r..t
h.r.ln a,r..d to b. p.ld fcr the 'P'CI of thlrty (30) day. .ft.r the
..m. .hall bacom. due and payabl., or upon r.o.lpt of notlo. from the
'alln.ylvanla Llquor Control Boud of a .u.p.ndon or r.vooaUon' (or
lnt.nt to .u.p.nd or r.vck.) of R..taurant l.lquor Llc.n'l No, 20227
for the .pac. of thlrty (101 day. or lon,.r, or Upon the tl11n, of a
p.tltlon ln bankruptcy pur.uant to provl.lon. of the Bankruptcy Cod.
of 1'7', or upon br.ach oC any oth.r t.rm of thi. Avr..mlnt, the whol.
of the unpalG prlnclpal aum, tov.th.r with lnt.ra.t, co.t. and oth.r
ch.rv.. r.qulr.d to b. p.ld h.r.und.r .hall, at the optlon of S.ll.r,
b.com. lmm.dlataly due and payabl.. Upon .uch d.fault, the Buy.r h.r.by
authorla.. and ..pow.ra any attorn.y of any court of r.cord to app.ar
for him and conf... judvm.nt for the whol. of .uch 'U., with a t.n
p.rc.nt (10') attorn.y'a commi..lon or fll', h.r.by walvln, th. rl,ht
of 'N.mptlcn and inqulaltlon .0 far a. the prop.rty h.r.in dlacrlb.d,
In additlon to oth.r r.m.di.. aval1abl. to S.ll.r h.r.und.r, upon
d.fault by Buy.r, S.11.r may d.clar. thi. Avr....nt t.rmlnat.d, null and
vold and proc..d by actlon of for.clo.ur. for r.cov.ry of the 'r.mial'
hlr.ln convly.d.
U. .I\OURS AND MEN'l'S,
Buy.r .nd S.II.r cov.nant to .aVI the oth.r party har.ll.. trom
any clalm to f.. or comml..lon by .ny rial I.tat. broklr. or a,'nta
d.alt with ln connactlon wlth thl. .al., due or to ba due by r.a.on
of act. of Buy.r or l.l1.r, a. the ca.. ..y b.,
-7-
17. COMPLETE UNDEAST~OINO.
Thi. Aq~..m.nt contlinl tho .ntlr. und'~ltlndln9 b.tw..n the
partl.. h.~.to, .nd .up.~c.d.. .ny prior writt.n or or.l 19r..N.nt.
b.twe.n th.m r..p.ctln'1 tho wrltt.n .ubject mltt.r, includln9 but not
l1mit.d to th. wrltt.n '9~"Ih'nt dlted March 17, 1981, Then Ire
no repr...ntltlon., 1'1~..m'nt., l~rlngelh.nt. or und.~.tlndin9" or.l
or writt.n, b.tw.." Ind Imon'1 tho plrti.. h.reto re1lt1nq to the
.ubjeot IlIItter ot thi. In.trwnent which ore not tully op~....d herdn.
18. IIEIAS AlIO ADMIN ISTI1ATOAS.
AU r1'1ht. 9iv.n In thh lnatrument to S.ll.r Ind Buy.r .hlll
acorue to thelr heirl, executor., Idmlni.trltor., ,ucc.aaor. Ind ...iqn.,
19. CONSTRUCTION,
Th1l A'1r..m.nt .ha11 b. i"terpreted and con.l:rued In Iccordlnoe
with th. 1Iw. at the COlJ'l1lOnwulth ot P.nnaylvln1l,
Z 0 . AlCOIUl INO.
Thl. A'1~.emlnt may ba ~ecord.d In the Ottlce ot the A.cord.r ot
D.ed. ot Cumb.rland County, P.nnaylvanla,
21, AlCI!IPT or COPY.
All partl.. hereto Icknowledqe receipt ot I tully ex.cuted oopy
at thl. A'1r..ment.
ZZ. INTENTION TO BE BOUND.
It 11 the int.ntlon at IIch at the parthe hereto to be 1Iq111)'
bound by tho t.rm. at thl. Aqr.lment and to bind their exeoutor.,
.dminl.trltora, helr., ,ucc...or. and 1..19n..
IN WITNESS WHEREOF, thl pIrtle. hereto neve .et thelr hand. and
..11. th. day and year tir.t .bove written.
ATTEST,
, I
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LEO ENTERPRISES, tNC,
,)1.
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S c~etary
By
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" eller.
Prllld.nt
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JIJIIII Iraq InnW'
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t4WItAI..TH 01' PI!;NNs
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. .
PENNSYLVANIA LIQUOR CONTROL BOARD
H""""ll.UUI, '.NNIYLYANIA "...
.1, 29. 1lJ81
""1' tol Lt_t.1 l"fotWtt.
CIItltr 717.712.....10
"- b"I,..t.
st ern .....,. S.1001l
40.11 "'robt 5tNtt
ea., Ktl1. "nAl11y..t. 17011
11II1' 5t"l
The Board has approved your appl fcatfon for transfer of the
lfquor license from Leo l.terprt..., lAC.
subject to fmmedfate complfance with the fol1owt., COIdtttOftlr
1. The license, wholesale purchase permit card
(amusemellt pennit and/or Sunday Sales Pflrmft,
If any) in the name of the present licensee,
or for the old address, shall be surrendered
to the Boa rd.
2. An affidavit shall bll ffled with the Board
settfng forth a description, including the
size and number of containers and the brand
names, of all liquor being sold to you in
connection with the transfer of this licenso.
If no liquor is transferred, a statement to
that effect shall be submitted.
This letter constitutes your authority to dispense liquor
end melt or brewed beverages in your establishment and to purchase
liquor et e discount at a Pennsylvania Liquor Store until end including
-..a' 12, 1111.
The reguired items should be submitted immediately so thet
the license can be Issued and be in your possession by Awgult 12, 1111,
since no further authority will be ~rantea,
Your 1 i cense number is TR.20Z27.
Very truly yours,
D. C. Krlf.t,
Director of Licensing
p,S, .......I~ t. .ho 11"" tAl pendt MAcI.. .IM! proytde ..tertll_t,
EXHIBIT
_L
KOLLAS & COBTOPOULOS
wr.1~~I.h1 C "o\~..
~IHI.'" C CO.tO,.O~U.O'
D.~ID I .01'UI
."U"'H'tG ANO COU"""I.~O"~.' ~..~
,iH hi"""", IP".l'
p t) It 0), ",
~ I III 0 Y N E, P [ N N 5 Y ~ Y A N I A I' 0 I $
July 29, 1981
Ga~y 2. F~ench, ~sq.
~eefe~, Wood, Allen & Rahal
210 Walnut Street
P.O. BOll 1226
>>ar~isbur9' PA 17108
"~H~OH' ,,,.,,,,
'~H QOOI PI,
.;'
'.
Re, Sie~ra Madre aaloon
Pear Gary I ,
,I
The liquor license in the above case has been transferred
to James Karagiannis. The real estate can not be transfarred
until this IDA matter is settled. My understanding is that the .
IDA will approve Jamos Karagiannis' s application in November. In
either avent, settlement of the real estate will take place in
November upon action by the IDA whether. approval or disapproval.
In the meantime, Mr, Karagiannis will be paying Al Leo
the sum of $3,694.13 monthly.
If you h/lve any questions, please advise me.
Very truly yours,
/221
William C. Kollas, Esqui~e
WCK/mj
COI James Karsgtsnnts
_JJ
~ u. - tcJ,.. ""0 .".u", ,.,., t.'"
,..Ll UAn U~ .",""" rOil,
It.. MCIl U, ,tm.AI.I'L#Hh\ ,,., ItIDJ
,.....~~-t!fJ.~$ItB.
rl/Ar J^",~U ~^'tJ\Gl^NtIIB, nn o<lult individuBl
(~."lool/'" 1'O,II,d,^, Ob/lto, )
io
~./J "",/ /I,,"/~ b""",/ "Olv
LIlO ~N~'F.Iu>nIB!B, INC., a l'onnuylvonio huoineu corporation, ouaceuor'by
merlIar to 1!9vh.ad, Ino,
(~""".,/" "./I,d ,A, Obllt.. ) 10 I~. "'.. 01 Three lIundrod Twanty- flve 'I'hcuund
Collom (0321,0001, to<]othor with intnoot ao haroinaftor provided,
low,.,' IfU',.." uI ,~. ",,""I allJI.. "I ,'''''''J'tJ. '" ,,~ ,m'" 10 ".. .",.1 OM'I"", Lta "nl",,,
..f""'''~II. NUll",.""" or ..Iul!",.. rlJ ~IMt" ""l/tII.", "',11 11".1 Ir"',,'n h,. ""I.". d"OB
b'tt4' dlld "bllt,OblbJ(Jr """", A'u",.,,,,., ",1"11",.,,,./,,,. ", """",""." "',rll vI III"" ,1",,,011
II"" "I',roll", ""I1IW bll ''''11 pr,,.,,,,,
8,,,'~llt.l/'h hili 3'41 ,"l,t,,' Ih, ""11 "I l~ehruBr'i 'n Ih, II'd',,' "", IAml
O",'h"'WJI1J "'nl h"",/,,,' """ olrjhty-twa (1902) ~
;an" <CC"nbiHlln "r 1I,le "l>lIo"lI"n I. .,ul, / r~"l II ,~. .hlll,.,bou"",,,
O\II)l.Ir " hilJ /I"tI, ^'~'CU/I"', ,.4,/NtI,,','rtJltJrI ,)f .I"t~"'1 Jr 11t'1/ nl'h,,". .1\.dl dM do w.II
OM "1.111/ pr,", IJt CdUII 'I) h"llJl,'U"'I' II., "ho""III'hUII OM".. I i tu e"'4'" ,'''0'"'11.
8utf"~"rJ" u,.t,lIt"', 0.. J'''' 111m 01 'l'hroQ ItUlh1red 'l'wollty-tivlJ ThouQnnd
OollBrll ($ 325, 000) -- --- -------..- - --------- ----/ullllli' IItO"'II d' "!"fI'otJ, toqot:hu r
with intoroot at tho roto of olovon porcont (II') por onnum, oold
prindpal and intoroot to ho poid in ono hundrod ninotoon (119) cqual
monthly inot.llmonto colculatod on thu boolo ot 0 tittoon (15) yaor
amortizotion porl.od and in ono (1) tinol inotollmont oquol to tho onHr
unpoid principal ond intoroot bolan"o. Th" tirut ouch monthly inotall-
mont oholl bo duo ond poyahle on ^prll I, 1902 ond oo"h .uh.oquont
inotallmont .h.ll bo duo ond payohlo at anD month intorvals thereotter.
Obligor acknOllledgoo thot the inotollmont paYl1lllnto providod tor horc-
under oro tor a torm at ton (10) yoor. ond that ony prindpal bolonco
which romain. unpaid et the oxplration at tho ton (10) your poriod,
to<]othor with onr accruod interoot, muot bo pold in tull with tho final
Inotollment hora nobove provldod,
lMII/IllUt>UmlJljf~_KI6KXI'JYiIIl/Jl ~~~'6/< l$.V/lMll.
)PJIl~' wlthlJlI~ tmll (Mud 0' 1",'1\" d,I"I/,' fJ",J '''411 product In th, .oM ObUtll, . "" S"cr",o,.
0' """In" on Dr bllo" 'h. tt"t dlJII 01 tloptombor . "1 tllt,\ 0",1 ,.ll.rll II'Of. "e'/ph/of oil
ttJzII. munlclpot 0...."'""1" 0' ch"rt" 01 th. ell"'", II'''' tlU"'", "p,,,, ,,,, mMtint,,1 "',.,"II'M,'
0"4 "ho IMtn Hltu to It"... ""d tit nil elm",. un'" P"II"''''' 1'/.1I1'd prlnl'lpnl .,.IIt,/or lit. k",pl"t,,/
,~. h""dlot
Jur"" "lInltfJII"I""",,..d 11111'n" I"u or d,.tnlJt,. blJ
''''/o''~' h..~, .f'~' Obllt.. 10 lh. "''" 01 liour lIundrod Twonty- ti va Thouoand
($425,000) dottMI' Ih,,. th, ohmlll Ollt/tlttlo" to b, '10'11, or ,1.,
'0 b. tJ"d r''''41111" /,.11 lo,e, "nJ ""'4I, llWllblb,bl hOI/"VIf, onll it I. h..""V up""'II "t",I/,
IMe II II' II"LI"m. d'/cJutt ,hdll b. ",ad. ," tl" pdll"'.nt 01 prlndfkJ' nr 'n,,,,,, a, nlor'.lJld 10' t'l'
'INe,ol ton (10) dOli' dlt" ,,"V ptJllm,", 'h",ol ,Je"tl/lllIl'''', o,'n 'lIch p,od/jd'o'~
to 'h, .old ObUt" I." 8''''0'110'' 0' "fult,." 0" 0' h"o,. Ih, "", 1/"u 01 Septomber . v/
'dOlt dnll ''''''1' 11'0', ol.Llt" f,edpll 10' 'LICit I.un, "'''"'c(p"llIu"",u"u ", eh.Jri" 01 th, e""""
II'd' upon 'h. P"'"~U ",o,ttatu/, or In 'h, mOlllll"onc, ollllch '"",MIJU; ,h," "Il-l' In 'I/,./~ tlU,",
II.. who/, fJrl"clflOld.bc "10'''01'', 'hdll. III '''.01'11011 "IOt, 'IJI,I ObUtu ,It, fJ'uee'uo,. nr.tu/t'..,
b,.eam. du. and pilI/aMI! tmmIlIU""'l/i ""1' PItVm,", ol,M" p,tnclpdl '~rn ,,",1 "11 '"t".." '''''''UI,
mtlJ/ h. ,nlafc,donJ ",.o.""d eH ont'.lJ"lJlhinl IUrlln tonlo/n,d 10 Ih, t'llnl'IJrIJ nOllvl""'IJ',dlnr!,
"",,b 1IWPb1b,b furih,l', hlJw,t:", r",.111 I' h",bll up",,'V I1t'.f!d, th,,' ',,,t ""II tI".. ".,.: '
nIl'" hI! rid'"'' nlfl/lll d'/tJ,lu In pl1l/m,",. ,lIhl' nl '0(,1 p,/,.('(pn' "on at mtlll4'''Y, ", "1-uM iI,t",al,
Of'n produtllu/I ol",fd "rfllp" I'" 101'''. ",u"tdplJt dU'U""nta 0' eh1lrlu, 11I""/11 0" t,,,,, .I'ul",d.
Of'n Ih. mailltlllt"'C' vi ."ch ,,.au,,,,,c,,, ow," 01 ':.r,tutlnn i. /Unp"'1I id'U" "pml OJ' Jlll/tmntl
ohlo(",.1 upon 1M. OM'lot(,JlI, or hl/lIi".u 01 Iii, 11'/1,,11I" III. Iflorl/'II 11""'11 0''''''''1''/, I"" 11I0"1111'
lor,dem", promdl"t I' P'IJP"'t/ III.ti,,,t," "I''''' ,h, tf"""I/IIJ'IIIUIIl~ /1111..""",. rll .lfu"trJt', "'1
"tlnllltlJ'. ",,,,Imlu(u,, IU'l'fltltclioll,I'/r" f i vo (5) Jl" .',." , . "/,,,f/lw 1"'/1"'''' ':,'",,, .IJ.,II b" 'urll',"", ,
in tlddOio,. '1) 1111 p,lndpal II"" In I,,,., 111"1 rI".., ,w,:"",. "II~f. "I ...0, "i,l' ;,1/ 0"1'1/'"'' ,), "ff",j'l/'~
,,,,~II '"'"m",'"
EXHIBIT
J1
.,
"III' lllrth.'r, Ob11IJQr ""..Hl/,I/I,.,_, 11"1/ """,,,,.,, u/"ulI ,../11" III """,,1
1/1 "" """''''''''1'1."", ""1,,,,,.,,/011I/,, '" t<Ia"".h",., I" O/l/lt-Iff/II, him 11"'.1,.
""." ""'1'., "111,.,,,, d",,,,,.,'i"I,./"...I, ,.,m/,... J/II/~m,."t 'lib""" h1m "",1
I" ("ll., "I ",,. """11'-" . It. ....,,,,.,...,,,. I/f./udfl"../'" "". ",/"'I/'''I,t."m, ",11/1111' t'"" III "0"'1,11""
,11,,1 "."" ,'H.,. ",."" """ """""V" ,.""'''''-'/'11I.,." 1'11/1"1111"", ,.,." fLve (5J
,7 I"" ,..,,,t,, """ ,..,,,,.,. ,,1.,11,"""" "",1 "., """"III'~I('" "'" "~,,, ,,/1"""/"""11 "If 'II'"~ I,',d "I""
fI,,,, ""'11 I" ,,.,~,,, "/'11/1 """,., II "",_",,,,, IJhlullll'I' "ll ,"r',," h"""1 ,''',' mill""""" 1'II"d,'"",
"'~ """'>""",11I"'."",. "" """/111/*""11 "'''''''1/1/11,11"" "/11'#/ .u/ll"',I' II/ .',,;o,,II"tt ""'/"~'"''
"",/ 0" .,,/11 ",,/ '."/" ""'1/ I" ,,"M """,., 11" "JIlt'; u"I/ ",..'I,,,,,,,, If'''/ """'/"'." "n "'''''1" ,,/,,11
/"",. 1/"1/' ,,, I,',,.,, ,t, 11'11/,'" "'''11 h,' ,,,,,,.,,,,, h~""/'''j "I ,or,,,,/,, /"'''' ''''/1 ,m" 11I/, "" ""'''''lIl1ml ,h,
,,,,,,,,/.,,, ,/,..",11,,.,/ /" II,,. "1""'"'''' /",/,.",,,,,. "/.1/1"'1"1', lJf .ItIy "ro/""II I,'h,,""""" 'If ''''II 1',,,/ "I
,,,,. ,,,,,,.,.,1/. "'/.1", I'HIII 11"11 .,,/, """"1.
.$'10",11, "',,,1,11 11..11 P,lIl1tr,1l
la, lIlt
,
lwt"..
OBLIGOR I
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DEFINITIONS
A. Tho totlll "porlOlI," II uAd berein, mOllls lilY natursl perIOD, partnership,
corporstioD, or olber bullne.. entity and all present and former officers, directors, asents,
employeos, sttorneys, IIld others actins or purportinsto act on behalfofllUcb natural perlOn,
partnership, corporation, or olber buslne51 entl!}'.
B. Thetenn "docwnent," as uAd berein, means the original and all copies of any
written, printed, typed, or other graphic malter of any kind or nature and any other tangible thinS
In your custody or CODlro~ including bUlnot Umlled 10:
I. All contracts, agreements, lelter agreements, representations, wllrrlUltles,
certiftcates, IIld opinions;
2. AIllelters or otller fOl1ll5 of corrospondence or cOll1lllunlcatlon, including
envelopes and notes, telegrams, cables, teleK mesllges, telexes and II1OSllses, including
reports, notes, notations, and meDlOrandaof or relating to telephone conversations or
conferences;
J. AIlll1Omoranda. reports, test re5Ults, financial statements or reports, notes,
scripts, transcripts, tabulations, 5tUdles, analyses, evaluations, projections, work papers,
corporate records or copies thereo~ ellJlresslons or statements of policy, lists,
questionnaires, swveys, cbarts, grapbs, summaries, extraclS, statistical statements or
records, compilations and opinions or reports of consultants;
4. All desk calendars, appointment books, and diaries;
5. All minutes. records, or transcripts or meetings and conferences and lists of
porlODS attending lI10etlngs or conferences;
2
6, All reportallld IiUIllmlriea of Inlervlewsor negolllllons,
7, All books, articles, preu relelllOs, nlllllmel, neWIt'aplIn, bookl'l..
brocbures, plmpblels, circulars, bullelllls, nOllces, IlIlIrucllonl, and lI1IIIual>>,
8, All motion Jllctures And "bolograpbs (whether developed or W1developed),
lape recordJnlls, m1crolllnll, phonogrApbs, lspes or other records, pWlcb cards, mapelll:
Ilpes, disc>>. dlla ceUs, drums, prinl'OUII, and olber dill COlUjlUlllons frolll wblcb
Informal Ion can be Obi lined; and
9. Drafts of illY documenll, revisions of IllY draft dOCWllCIlIS, and orilllnnl or
preliminary nOlel.
C. The \enn "coOlOlwllcntlon," II Ullld bereln, lIIIlans aU IIlleOllllllS, admissions,
deniala,lnqulrlea, discussion, converssllon, nellollatlolls, Agreements, conlncls, W1denlnndJngl,
lI1Ielinlll, lelephone conversation a, lellers, correspondence, nolel, lelegrama, leleltes,
sdvertlsemenls, or any other fonn I\f wrlllen or verballn\ercourlSC.
D. TIle lenn "idenllly," when used with respecllo n dOCUl1lClll, mOAns 10 Slnle lbe
date, Author, addrelilCe, type of documenl (~ '1eller"); 10 IdentifY lis last Imom! cUSlodian and
location; and 10 stile the ellhibll number of the documenllfll has been marked during the course
of a coUrt proceedJng.
E. The lenn "ldenlUY," wbennlll,l with respecllo an indlvldual, lnCans to give the
person's full nalnC, AU known aliases, presenl or laSl known business and home addresses and
lelephone numbers, and prelllnt position of business aftillallon.
F. The lenn '1denlUY," when used wilh respecllo any other ''person,'' means 10 give
the person's omclal, legal. nnd funnal name or the name WIder whlcb the person aCls or conducts
3
'"
bUlln.... the adelressand telephllne number ofllle penon's pllee ofbusln"I, prof"llonll,
commerce, or bome, IIId tho Idenllty ofllle penoll's principII or chlefellecutlve olDcer or perloll
who occupies the poslllon most closely IIIlloHOUS 10 I chief execullve.
G. Thelenn "rellle(s) to," IS used herein, means conlilhutes(s), reti\l'(I) to, reftect(s),
concem(I), pertaln(s) to. or in lilY way loglcllly or factually connect(s) willi tbe matter described
In the requellt.
I ,
, I
.1
, I
I:
,
I
, I
.,
I I
I
il
4
~,
DI'IHI'rIOlfll
A. The term "perlon," AI u..d herein, meanl any natural
parson, partnership, corporation, or other business entity and
all present and former offic$rs, directoru, agents, employees,
attorneys, and others acting or purporting to act on behalf of
such natural person, partnership, corporation, or other business
entity.
B, 'rhe term "document," as used herein, means the
ori9inal and all copies of any written, printed, typed, or other
graphic matter of any kind or nature and any other tangible thing
in your custody or control, including but not limited tal
1, All contracts, agreements, letter agreements,
representations, warranties, certificates, and opinions,
2. All letters or other forms of correspondence or
communication, inclUding envelopes and notes, telegrams,
cables, telex messages, telexes and messages, including
reports, notes, notations, and memoranda of or relating to
telephone conversations or conferences,
3. All memoranda, reports, test results, financial
statements or reports, notes, scripts, transcripts,
tabulations, studies, analyses, evaluations, projections,
workpapers, corporate records or copies thereof, expressions
or statements of policy, lists, questionnaires, survey.,
charts, graphs, summaries, extracts, statistical statements
-3-
Q~ r.ao~d., compilation. and opinions or report. at
Don.ultant.,
4. All desk aalendars, appointment books, and
diaries,
5, All minutes, reoords, or transoripts ot meetings
and conterenoes and lists ot persons attending meeting. or
oonterenoes,
6. All reports and summarifts ot interviews or
negotiations,
7, All books, artioles, press releases, magazines,
newspapers, booklets, broohures, pamphlets, oircJlars,
bulletins, notices, instructions, and manuals,
8. All motion pictures and photographs (whether
dev.loped or undeveloped), tape recordings, microtilm.,
phon~graphs, tapes or other records, punch cards, magnetic
tapes, disos, data cells, drums, print-outs, and other data
compilations trom which intormation can be obtained, and
9. Dratts ot any documents, revisions ot any dratt
documents, and original or preliminary notes.
c. The term "communication," as used herein, means all
statements, admissions, denials, inquiries, discussion,
conversations, negotiations, agre.ments, eontracts,
understandings, meetings, telephone conversations, letters,
-ol-
-
corr..pond.nc., not.., t.leqram., t.l.x.., .dv.rti....nt., or any
other torm of writt.n or verbal intercour.e,
0, The term ijidentity,ij when used with respeot to a
document, means ta state the date, author, addressel, type of
document (.L.SL. ijletter.") I to identity itll last known custodian
and locationl and to state the exhibit number ot the document it
it has been marked during the course ot a court proceeding.
E. Tho term "identity," when used with raspect to an
individual, means to qive the person/s tull name/ all known
aliases, present or last known business and home addresses and
telephone numbers, and present position or business affiliation.
f'. The term "identity," when used with rupect to any
other "person," means to qive the person's official, legal, and
formal name or the name under which the person acts or conducts
business, the address and telephone number of the person's place
of business, professional, commsrce, or home, and the identity of
the person/s principal or chief executive officer or person who
occupies the position most closely analoqous to a chiet
executive,
G. The term "relate(s) to," as used herein, means
constitute(s), reter(s) to, reflect(s), concern(s), pertain(s)
to, or in any way logically or tactually connect(s) with the
matter d.scribed in the request.
-5-
I.QUISTS .oa ADMISSION
l. Mr. Karagiannis knew and approved ot th~ cqntent ot the
letter trom his attorney, William c, Kolla., to Henry F. coyne,
Solioitor ot Hampden Township Industrial Development Authority,
dated November 20, 1981,
2, The mortgage signed by Mr. Karagiannis, dated February
24, 1982, in the amount ot ~J25,OOO, was r~viewed by Mr.
Karagiannis and/or his counsel, Mr, Kollas, prior to the closing,
J. The mortgage signed by Mr. Karaqiannis, dated February
24, 1992, was signed, sealed and delivered by him in the presence
ot William c. Kollas, his attorney.
4, The mortgage, dated February 24, 1982, trom James
Karagiannis to Leo Enterprises, Inc., in the amount ot ~J25,000,
provides that the tirst monthly installment was du~ and payable
on April l, 1982, and that subsequent installments shall be due
and payable on one. month intervals thereatter.
S, Mr, Karagiannis and/or his legal counsel, Mr. Kollas,
knew or should have known the principal amount reterred to in the
mortgage was $J25,000 and that the tirst payment under r.he
mortgage was due on or before April l, 1982.
6, The tirst payment of monies trom James Karagiannis to
Leo Enterprises, Inc, after the execution ot the mortgage, dated
February 28, 1982, was on or about March l. 1982, in the amount
ot ~J,694.lJ.
.6-
.
.." ~";,If'1
LEO ENTERPPJSES, lNC" : IN nm COURT OF COMMON PLEAS OF
: CUMBEPJ.A.ND COUNTY, PENNSYL V ANJA
Plaintlft'
VI, : NO, 96.4255
JAMES KARAOIANNIS, .
.
Defendanl : CIVll. 'ACTION. lAW
..........
JAMES KARAOIANNlS, : IN THE COURT OF COMMON PLEAS OF
: CUMBERLAND COUNTY, PENNSYLVANIA
Plainllff .
.
VI, : NO. 96.4136
LEO ENTERPPJSES, INC., -
Defendanl : ClVa ACTION . lAW
JAMES KARAGIANNIS'
RESPONSE TO REOUEST FOR ADMISSIONS
TO: Slepblll1 L, Grose. Esquire
210 Walnul SUeel
P,O, Bo" 11963
Harrlaburg, PA 17108.1963
AND NOW comes James Karagiannla, by and Ihrough bla underalllJled attorney of
record, and respectfully represents the foDowlng:
1. Denied. Mr. Karagiannls was not aware of the content. of the letter of November
20, 1981,10 Henry Coyne. Mr. KaragiannlJ was aware thaI we were negotiating with the
Hampden Townlhlp Industrial Development Authority for ta".e"empt stat1.ls.
2. The aIlesltionlln Plrlplph 2 Ire Idmitted, However, It WII reviewed In the
conteKt thlt it w.. the fuItIllinent oftbe apoolnont dated MIY 15, 1981, wherein Plrlplpb 5
provided for Inatallment payments and Paragrlph 6 provided for ..aurll)' specUlcllly a puraha..
DlOney nlortSlge. The purchase Inoney mortSlse wu given It thll ..me tllne lblt I deed wu
given to Mr. Karaglllll1ls.
3. Admitted.
4. Denied as Iitlled. However, it was given in the context that it W81 . purcballO
monoy mortgage given In excbanse for tbe deed of same dlte. Botb plrtieS knew and teaoguiz.ed
that this was for the purpose solely of pUltlns . security Intereat on the premisellOd thlt the
payments bid, in lict, started In July of 1981.
5. Denied. Both Mr. Karag!annls aud his legll counsel wllre executlns a purcbase
money mortsase in accordance with tbe agreement of May 15, 1981, which lbey were required to
do and the purchase money mortsage certainly couldn't have been dated prior to the execution of
the deed, Both Mr. Karaglannl. and his counsel belleved that the execution oftbls apeement was
lbe glv\ns ofa securlty in accordance with the contract of May 15, 1981. Bolb Mr. Karagiannl.
and his counsel knew lbat the payments had Iitarted in July of 1981.
6. Admitted.
7. Denied os lItated. There is a written apeement sl8lled by Leo Enlerprlses, Inc.,
whicb indicates Ibat the payments under the conlract of May 15, 1981, were to start prior 10 the
execution of the purchase money mortgase, and they did, in fact, start prior to the execution of
the purcbase money mortSlse.
-
&. M~. Bayuk's "Exhibit 2" indicates only that the listed
payments were made on those amounts and on those dates, but
doesn't disclose the natu~e of the payment, (Bayuk
Deposition ~ Page 32, lines 19 ~ 211
G. M~. Kollas agrees that "Bayuk Exhibit 5" is a letter from
him to Mr. Henry coyne, dated November 20, 1981, and that
the latter states "The liquor license has been transfe~r.d
and a lease has been negotiated with Al Leo for the building
and ground." (Kollas Deposition ~ Page 6, lines 19 ~ 25 and
Page 7, line 1)
7. Atter Mr. Kollas's letter to Mr, French, dated August 3,
1981, ("Kallas Exhibit 2") Mr, Kallas sent his letter to Mr.
coyne, indicating that a lease arrangement had been reached
between Mr. Karagiannis and f.eo Enterprises. (Kallas
Deposition - Page 10, lines 16 - 25 and Page 11, line 11
8. There was no correspondence between Mr. French and Mr.
Kallas with regard to the installment payment issue between
Mr. Kallas's letter to Mr. Coyne of November 20, 1981 and
Mr. Kollas's letter to Gary French, in February, 1982
requesting settlement be completed, (Kollas Deposition ~
Page 11, lines 1 - 10)
9. As a result of Mr. Kollas's letter dated February 15, 1982,
("Karagiannis Exhibit 1"), Mr. French prepared and provided
the proposed mortgage, bond and warrant, and deed to Mr.
Kallas for his review and signature by Mr, Karagiannis.
(Kallas Deposition - Page 11, lines 19 ~ 25)
10. Mr. Kollas had an opportunity to review the bond prior to
closing and did so and he was aware that the figure of
$325,000 was listed as the principal amount and that the
repayment language contained in the bond indicated the first
payment was due on April 1, 1982, (Kollas Deposition ~ paqe
12, lines 1 - 101
11. Mr. Kollas admits that the bond reviewed by him and signed
by Mr. Karagiannis on Fetruary 24, 1982, states that "The
first payment under the bond shall commence on April 1,
1982." (Kallas Deposition ~ Page 13, lino/ls 19 ~ 21)
2
12. M~. Kollas agrees that on the faoe of the bond, it does not
refleot that any of the payments made prior to February,
1982 should be viewed as a principal reduction or be
conside~ed made as payments under the bond exeouted on
Febt'uary 24, 1982. (Kallas Deposition - Page 14, lines 14 -
20)
13. Mr. Kallas agrees that there is nothing in the bond that
reflects his understanding of the nature of the payments
from July, 1981 through February, 1982, which is contrary to
the express language of the bond. (Kollas Deposition - Page
15, lines 11 through 14)
14. Mr. Kollas had no discussions with Mr, French regarding the
allocation of payments after the closing, nor did he have
any discussions with Mr. Karaqiannis regarding this issue
when the balloon payment issue arose 10 years later.
(~ollas Deposition ~ Page 15, lines 15 - 25)
15. Mr. ~aragiannis agrees that, according to the Agreement of
Sale, the monthly installments on the $325,000 debt were to
start 50 days after the date of settlement. (Karagiannis
Deposition - Page 15, liMs 22 ~ 25 and Page 16, lines 1 and
2)
16. Mr. Karagiannis agrees that Paragraph 7 of the Agreement of
Sale indicates that "All deeds and security documents
required hereunder shall be executed by the parties at
Settlement and shall thereupon be recorded and/or filed
immediately." (Karagiannis Deposition - Page 16, lines 19 -
23) .
17. Mr. Karsgiannis didn't read the documents when he got them,
he just signed them. (Karagiannis Deposition - Page 22,
lines 1 ~ 11)
18. Mr. Karagiannis cannot explain the letter from his attorney,
Mr. Kallas, to the solicitor of Hampden Township, Henry
C0yne, dated November 20, 1981, indicating that Mr.
Karagiannis had a lease with Al Leo for the Sierra Madre
during the time from May 15, 1981 through February 24, 1982.
(Karagiannis Deposition - Page 24, lines 4 - 13)
-J-
19. Mr. ~a~~giannia testified during his deposition, th~t he had
never seen the Novembe~ 20, 1981 letter prior to the d.ay of
the deposition. (Karagiannis Deposition ~ Page 25, lines 3
- B)
20. Mr. ~araqiannis doesn't recall whether he saw the letter
from his attorney to Mr. coyne when he filed his Answers to
Request for. production of Documents and Interrogatories, but
if he did, he would h~ve qUllstionllr.! Mr. Kollas about. He
would have told Mr, Kallas that the statement regardin'l a
lease was wrong. (Karagiannis Deposition ~ Page 25, 1 nes 9
- 17)
21. There is no document, other than the Agroement of Sale dated
May 15, 1981, that Mr, Karagillnnis believes confirms his
position that the payments made from July, 1981 through
February, 1982, were supposed to be payments under thll
installment note, as set forth in the Agreement of Sale.
(Karagiannis Deposition ~ Page 33, lines 2 - 12)
22. Mr. Karagiannis signed and delivered the bond in the
presence of his attorney, William c. Kollas. (Karagiannis
Deposition - Page 37, lines 1 ~ 25 and Page 38, lines 1-
14)
23. In Mr, French's letter to Mr. Kollas, dllted July 31, 1981,
he indicated that the monthly payment of $3,694.13, was
entirely interest or rent, Mr, Leo's position was that the
payments were either all interest on the principal balance
($325,000) or rent payments. (French Deposition - Page 14,
lines 1 - 12)
24. Mr. French was directed by his client, Mr. Leo, not to
respond to Mr. Kallas's letter of August 3, 1981, since Mr.
Leo would deal with that himself. (French Deposition - Page
14, lines 18 - 22)
25. After Mr. French received a copy of Mr, Kallas'S letter to
Mr. coyne, dated November 20, 1981, he received no further
correspondence from Mr. Kollas on the issue of whether the
payments being made Were lease payments. (French Deposition
- Page 15, lines 18 - 25 and Page 16, lines 1 - 5)
-4~
LISO I&I'ITERPIUSES, INC.,
PlaintHf
IN TUB COURT OF COMMON PLEAS
CUMBERLAND COUNTV, PENNSVLVANIA
1'10. 96"421$& v"
v.
JAMJ!;S KARAGIANNIS,
Oefendant
civil Action - Law
.....
JAMES l<ARAGIANNIS,
Plaintiff
I 11'1 THE COURT OF COMMON PLEAS
I CUMBERLAND COUNTY, PENNSYLVANIA
I
I No. 96-4136
I
I
t civil Aotion - Law
I
v.
LEO ENTERPRISES, INC.
Defendant
CONSOLIDATED CASES
PROPOSED FINDINGS OF FAOT OF LEO ENTERPRISES. INC.
1. Mr. Bayuk was not aware that the $325,000 loan was to be
amortized over a 15 year period but with a 10 year payback,
and a balloon payment at the end. (Bayuk Deposition - Page
12, lines 18 - 23)
2. When Mr. Bayuk prepared "Exhibit 2" to his deposition, he
had not reviewed the mortgage given by Mr, Karagiannis to
Leo Enterprises, Inc, (Bayuk Deposition - paga 16, lines 1 -
8) .
3. Mr. Bayuk never saw anything in writing that indicated when
the first payment was due under the installment portion of
the transaction, and just assumed the first payment was to
be made in July. (Bayuk Deposition - Page 16, lines 20 ~ 25)
4. Mr. Bayuk has no records that would shoW the tax returns for
Sierra Madre for 1981 and 1982. (Bayuk Deposition - Page 27,
lines 14 - 17)
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&. M~. Bayuk's "Exhibit ~" indioates only that the listed
payments were mado on those amounts and on those dates, but
doean't disclose the nature of the payment. (Bayuk
Deposition - Page 32, lines 19 - 21)
6. Mr. Kallas agrees that "Bayuk Exhibit 5" is a letter from
him to Mr, Henl:"Y coyne, dl.ltcd November 20, 1981, and that
the latter states "The liquor license has been transferred
and a lease has boon negotiated with Al Leo for the building
and ground," (I<ol1as Doposition - Page 6, lines 19 - 25 and
Page 7, line 1)
7. Aftar Mr. Kollas'G letter to Mr. french, datod August 3,
1981, ("l<ollas f;xhiiJit 2") Mr. l<ollas sent his letter to Mr.
coyne, indicating that a leaso arrangement had been reached
between Mr, Karagiannis and Leo Enterprises, (Kollas
Deposition - Page 10, linos 16 - 25 and Page 11, line 1)
8. There was no correspondence botween Mr, french and Mr.
Kollas with regard to the installment payment issue between
Mr. Kallas's letter to Mr, coyne of November 20, 1981 and
Mr. Kallas's lettor to Gary french, in February, 1982
requesting settlement be completed, (Kallas Deposition -
Page 11, lines 1 ., 10)
9. As a result of Mr, Kallas'S letter dated February 15, 1982,
("Karagiannia Exhibit 1"), Mr, French prepared and provided
the proposed mortgage, bond and warrant, and deed to Mr.
Kallas for his review and signature by Mr. Karagiannis.
(Kallas Deposition - Page 11, linea 19 - 25)
10. Mr. Kallas had an opportunity to review the bond prior to
closing and did so and he was aware that the figure of
$325,000 was listed as the principal amount and that the
repayment language contained in the bond indicated the first
payment was due on April 1,1982. (Kallas Deposition - Page
12, lines 1 - 10)
11. Mr. Kallas admits that the bond reviewod by him and signed
by Mr. Karagiannis on February 24, 1982, states that "The
first payment undor the bond shall commence on April 1,
1982." (Kallas Deposition - Page 13, lines 19 - 21)
2
12. Mr. Kollas agrees that on the faoe of the bond, it does not
refleot that any of the payments made prior to Pebrua~y,
1982 should be viewed as a prinoipal reduction or be
considered made aa paymenta under the bond exeouted on
February 24, 1911~, O<ollaa popoaitiol1 - Page 14, lines 14 -
20)
1~. M~. Kallas agrees that there is nothing in the bond that
~eflects his understanding of the nature of the payments
from July, 19111 through February, 1987., which is contrary to
the express language of the bond, (Kollas Deposition ~ Page
15, lines 11 through 14)
14. Mr, Kallas had no discuaaions with Mr, french regarding the
allocation of payments atter the closing, nor did he have
any discussions with Mr. Knragiannis regarding this issue
when the balloon payment issue arose 10 years later,
(Kallas Deposition - Page 15, lil1es 15 - 25)
15. Mr. Karagidnnis agrees that, according to the Agreement of
Sale, the monthly installments on tho $325,000 debt were to
start 60 days after the date of settlement. (Karagiannis
Deposition - Page 15, li.nea ~2 - ~5 al1d Page 1", lines 1 and
2 )
16. Mr. Karogiannis agrees that Paragraph 7 of the Agreement of
Sale indicates that "All deeds and security documents
required hereunder shall be executed by the parties at
Settlement and shall thereupon be recorded and/or filed
immediately." (Karagiannis Deposition - Page 16, lines 19 -
23) .
17. Mr. Karagiannis didn't read the documents when he qat them,
he just signed them, (Korogiannis Deposition - Page 22,
lines 1 - 11)
18. Mr. Karagiannis cannot explain the letter from his attornBY,
Mr. Kallas, to the solicitor of Hampden Township, Henry
Coyne, dated November 20, 1981, indicating that Mr.
Karagiannis had a lease with Al Leo for the sierra Madre
during the time from May 15, 1981 through February 24, 1982.
(Karagiannis Deposition - Page 24, lines 4 - 13)
-3~
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19. M~. Karagianni~ testified during his deposition, that he had
never seen the November 20, 1981 letter pr.ior to the day of
the deposition. (Kllraqillnnis Deposition - Pags 26, linos 3
- 8)
20. Mr. Karagiannis doesn't recall whether he saw the letter
tram his attorney to Mr. coyne when ho filed his Answers to
Request for Production of Documonts and Interrogatories, but
if he did, he would have questioned Mr, Kollas about. He
would have told Mr. Kallas that the statement regarding a
lease was wronq, (I<urilgiunnis Deposltlon - Page 25, lines 9
- 17)
21. There is no document, other than the Agreement of Sale dated
May 15, 1981, that Mr', l<aragl.llnnis bollovoll confirms his
position that the paymentll made from July, 1981 through
February, 1982, wel'O supposed to be payments under the
installment note, as set forth in the Agreement of Sale.
(Karagiannis Deposition - Page J3, linos 2 - 12)
22. Mr. Karagiannill signed and delivered tho bond in the
presence of his attorney, William c. Kallas. (Karagiannis
Deposition - Page 37, lines 1 - 25 and Page 38, lines 1 _
14)
23. In Mr. French's letter to Mr. Kallas, dated July 31, 1981,
he indicated that the monthly payment of $3,694.13, was
entirely interost or rent. Mr. Leo's position Was that the
payments were either all interest on the principal balance
($325,000) or rent payments. (French Deposition ~ Page 14,
lines 1 - 12)
24. Mr. French WilS directed by his client, Mr. Leo, not to
respond to Mr, Kallas's letter of August 3, 1981, since Mr.
Leo would deal with that himself. (French Deposition - Page
14, lines 18 - 22)
25. After Mr. French received a copy of Mr, Kallas's letter to
Mr. Coyne, dated November 20, 1981, he received no further
correspondence from Mr. Kollas on the iasue of whether the
payments being made were lease paymenta. (French Deposition
- Page 16, lines 18 - 25 and paqe 16, lines 1 - 5)
-4-
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26.
Mr. French prepared the bond (IIBayuk l!:>thibit 311) and used
the principal amount of $325,000 beoause that was the
p~incipal amount due at that time. (Frenoh Deposition -
~age 16, lines 6 ~ 18)
M~. French received no objection from either Mr. Kolla. o~
M~. Keragiannis with reqard to the amount of prinoipal
($326,000) used in preparing the bond and mortgage. (Frenoh
Deposition - Page 17, lines 13 - 25)
Respeotfully submitted,
KEEFER, WOOD, ALLEN & RAHAL
27.
I.
BY-&~L'. a~e ~wu.....
Attorney I.D. #31006
210 Walnut stroet
P.O. Box 11963
Harrisburg, PA 17108-1963
(717) 255-8052
Attorney for Leo Enterprises, Ino.
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96-4265 CIVIL TERM
96-4136 CIVIL TERM
$20,000,
together wltl1lnterest of 10% per annum due In 8 single
payment within one year after the date of
selllllment $20,000,00
$325,000, dUI In monthly Inltlllmlntl 81 hlrllnlfter
provided (Empl1asls added.) $325.000,00
TOTAL PURCHASE PRICE
$425,000,00
The agreement provided under the hoadlng "Installment Payment'":
The unpaid principal Amount of Threo Hundred TWF.lnty-f1ve
Thousand Dollars ($325.000), together wllh Inlerell allhe rele of
eleven percenl (11 %) per Innum on Ihe unpaid balance, or In Ihe
evenllhallllx-free mortgage financing can be arranged through an
Ipproprlate Industrial developmenl authority, Inlereel allhe rale of
elghl and ono-half percenl (8 1/2) per Bnnum, sholl be paid In one
hundred and nineteen (119) equal monthly Inltallments calculaled
on Ihe balls of a flfteon (16) year amortlzallon period IlId In one (1)
flnallnllallmenl equal 10 the enllre unpaid principal and Inleresl
balance, The flrll such monthly Inslallmenlshall be due and
payable fifty (60) duys llfter Ihe dale of Seltlemenl and each
lIubllequenllnstallmenl shllll be due and payable alone monlh
Inlervals thereafter, Buyer acknowledges that Ihe Inslallmenl
flnanlllng provided for hereunder I~ for a term of len (10) yearll and
thai any principal balance which remains unpaid allhe explrllllon of
Ihe len (10) year period, logether with Bny accrued Inlerelll, musl be
paid In full wllh the flnallnslallmenl hereinabove provided,
notwithstanding Ihe facllhallhe Inslallment payment llmounlll are
olherwllle calculaled on Ihe buill of a fifteen (16) year amortlzllllon
period. The principal amount, together With accrued Interest, may ba
pre-paid by Buyer at any lime without penalty. (Emphasis added,)
Under the heading "Settlemenl," the agreement provided:
Selllemenl hereunder IIhalllake place wllhln forty-elghl (48)
hourll after Ihe recelpl of approval for Iransfer of Pennsylvania
Relltauranl Liquor License No. 20227 to Buyer. All doedll and
lecurlty documenls required hereunder IIhall be executed by the
partlell 01 Settlemenl and shall thereupon be recorded and/or filed
Immediately. In the evenlthat Ihe Pennsylvania Liquor Control Board
-2-
96.4255 CIVIL TERM
96-41(18 CIVIL TERM
...fuI.. to tran.f.r th. Llc.n.. to BuV", thl. Ag....m.nt Ih.n be
nun and void .nd s.n" .h.1l b. .ntlU.d to "t.ln the d,po'lt mon.v
of T.n Thoullnd Doll.,. ($101000) a.llquld.t.d damagll.
Po.....lon 0' the P"ml... .h.1l bit give., to BuVer .tth. time of
S.UI.m.nt. (Emphasis added,)
Under the heading .Complete Under.tendlng1' the agreement provided:
Thl. Agreement cont.ln. the entire underat.ndlng between
th. partie. hereto, and supercedes any prior wrll1en or oral agreements
between them respecting the wrll1en subject mal1er, Including but not
limited to the wrll1en agreement dated March 17, 1981, There ere no
"p"l8ntltlonI1 Igreementl1 Irrlngement. or underatlndlng., orel
or wrll1en, between Ind Imong the plrtl.. hereto "lllIng to the
.ubJect mltler 0' thle Inltrument which Ire not 'ully ellpre..ed
herein. (Emphasis added,)
AI Lea, who Is now deceased, was the president of Leo Enterprises, Inc, He
and James Karaglannls were friends, They Initially signed a partial wrll1en agreement
of sale on March 17, 1981, for the sale of the Sierra Madre to Karaglannls for
$425,000, of which $325,000 would be financed by the soller, Karaglannls paid Leo
$10,000 toward the purchase price on March 17, 1981, As set forth In the Integrated
agreement of sale dated May 15, 1981, that $10,000 was to "serve as liquidated
damages In the event of the Buyer's default hereunder," Leo allowed Karaglannls to
start operating the Sierra Madre Saloon on MlY 12, 1981, three daY8 prior to the
signing of the agl'eement of sale on May 15, 1981,
Under the "Installment Payments" provision In the agreement, monthly
payments at eleven percent per annum Interest on the seller's financIng of $325,000
came to $3,694,13 amortized for fifteen years, Karaglannls started making monthly
.3.
96-421515 CIVIL TERM
96-4136 CIVIL TERM
payments to the Beller 01 $3,694, HI In Jun., 1811, within IIfty days 01 May 115, 1 filS 1 ,
Alter May 15, Attomey William C, Kollas, who reprelented Karagl8nnll, sought tax
Iree mortgage IInanclng through the Hampden Township Industrial Development
Authority as allowed In the "Installment Payments" provision 01 the agreement 01 sale,
Attomey Gary F, French, who represented Leo Enterprises, Inc" wrote to KolIBs on
May 29,1981:
Enclosed Is a photocopy of the deed to be delivered to Jim
Karaglannls In connecllon with the conveyance of the Sierra Madre
Saloon, Although I have the Mortgage and Bond In hand, It com.e
to mind that thle will not be 8 etralght mortgage and bond Iltuallon
with the Involvement of IDA flnunclng. The property will have to be
reconveyed to the IDA, which would th.n 1111 or leule It back to Jim.
Accordingly, I believe that AI Leo'e mortgage would run from the IDA
and that thOle documentl will be prepared by the IDA'I counlel,
that Is, Henry Coyne or Chuck Sieck. Therefore, I have disregarded the
portion of the Memorandum of Understanding dated May 15, 19B "
which requires Alto execute a mortgage prior to release of the $70,000
escrow lund. I have this week released 11106e monies to AI.
II you havf.l quesllons regarding the foregoing, please do not
hesitate to contact me. (Emphasis added.)
The Pennsylvania Liquor Control Board approved the transfer Clf the liquor
license Irom Leo Enterprl8es, Inc" to James Karaglannls on July 28, 1881, Despite
the requirement In the agreement of sale that seltlementtake place within forty-eight
hours alter the tran~fer 01 the liquor license, and that all deeds and security
documents required thereunder were to be executod by the parties at that settlement,
the aettlement never took place, Kollas wrote to French on July 29:
The liquor license In the above case has been translerred to
James Karaglannls, The real eltate cln not be tranlferred until thle
.4-
96.4255 CIVIL TERM
96.4136 CIVIL TERM
IDA m.tt.r II ..tUld. My understanding Is that the IDA will approve
James Karaglannls's application In November, In either event,
settlement 01 the reel estate will take place In November upon action by
the IDA whether approval or disapproval.
In the meentlme, Mr, Kereglennll will be plying AI LIO the
lum of $3,694,13 monthly,
It you have any questions, please advise me, (Emphasis added,)
French wrote to Kallas on July 31, 1981:
I have forwarded your letter of July 29, 1981 to AI Leo for review,
I assume that he and Jim Karaglannls have already agreed to the
Rrrangement outlined In your leiter, I would just point out, however, that
pursuant to the executed Agreement dated May 15, 1981, settlement on
the conveyance was to take place within forty-eight hours after transfer
of the liquor license to Mr, Karaglannls. The Agreement, therefore, Is
technically In default. Also, I am somewhat concerned that a major
assot has been conveyed without adequate return compensation or
security to AI Leo. Kindly give me your thoug~lts on how this problem
might be resolved. One thought that comes to my mind Is that the
$20,000 payment due In May, 1982 might be accelerated so as to better
compensate AI for the transfer 01 the license.
Additionally, pleeee confirm thet the $3,694,13 monthly
peyment mentioned In your letter Ie entirely Intereet or rent. I do not
lee room for amortization of prlnclpl1l In that figure, (Emphasis
added.)
Kollas wrote to Frencl1 on August 3, 1981:
Thank you for your letter of July 31, 1981, It Is my understanding
that AI Leo and James Karaglannls have agreed to the arrangement
outlined In my letter of July 29, 1981.
This arrangement which has been arrived at by both parties Is for
the benefit of both parties. While It Is true that James Karaglannls's
payments will be less, AI Leo will be receiving tax free Interest. As a
consequence, It was my understanding and I think the underetandlng
of the pertlel that the monthly payment would Include Interelt end
emortlzetlon of the principal. Vou will recall that the eum of
$3.694.13 represented the monthly payment to be made In the event
the IDA approval wae not forthcoming. The principal reduction,
however IlIght, Ie to ba for the benefit of my client.
.5.
96.421515 CIVIL TERM
96.41'38 CiVIL TERM
Finally, the value of the tranefer of the major aBlet la in my mind
not capable 0' determination and we would nct agree to the acollerallon
of the $20,000,00 payment. (Emphasis added,)
On November 20, 1961, Kollas wrote to Attorney Henry Coyne who wae the
solloltor for the Hampden Township industrial Development Authority:
The Sierra Madre Saloon transaction Is being held In abeyanoe
pending the outcome of the decision 01 the H8mpden Township
Industrial Development Authority Board,
The liquor lIeenle hal been tranlferred and a leale haa been
negotiated with AI Leo for the building and ground. However, for
the reel eatate trannetlon to be completed, Jamll Karaglannll
needa approval of the Hampden Townlhlp Indultrlal Davalopment
Authority.
If you need further verification of this, you may contact AI Leo's
attorney Gary E, French, of Keefer, Wood, Allen & Rahal. (Emphasis
added,)
The Industrial Development Authority turned down the tax free mortgage
financing around February 1, 1982, Arrangements were then made for a s8ttlement
whloh was held on February 24, 1982, At settlement a deed, mortgage and bond
prepared by Attorney French were executed as required under the provision titled
'Security" In the agreement of sale dated May 15, 1961, which provided:
Buyer Ihall execute In Seller's favor such security agreements or
other documents, Including but not limited to, an Installment note or
notes, 8 purchale money mortgage and Unllorm Commercial Code
financing statements, 8. Seller'. allorney may reaaonably determine
are necellary or advl.able to lecure Sillier'. right to payment
hereunder, All such documents shall evidence Seller's first lien security
Interest In the encumbered asset. Moreover, Buyer acknowledges that
upon any default by Buyer under the terms of this Agreement all right,
title and Interest In, to and under Restaurant Liquor License No. 20227
.6.
96-42155 CIVIL TERM
Q6.41G8 CIVIL TERM
shall lorthwlth revert to Seller and Seller shall have the right to make
Immediate application lor re-transfer 01 the License to Seller, , , ,
(Emphasis added,)
The mortgage and bond eK8Cuted by James Karaglannls on February 24,
1982, provided lor the payment 01 $325,000:
[t)ogether with Interest at the r8te of eleven percent (11 %) per annum,
said prtnclpaland Interest to be paid In one hundred nineteen (119)
aqual monthly Installments calculated on the basis 01 a IIfteen (15) yesr
amortization period and In one (1) final Installment equal to the entire
unpaid principal and Interest balance. The flret such monthly
Inltellment Ihall be due and pey.ble on April 1, 1982 and elch
lubl.quent Inltlllment Ihlll be due end plYlble at one month
Intervlll thereafter. Obligor acknowledges that the Inltallment
paymentl provided for hereunder are for a term of ten (10) yeerl
end thet any principal balance which remalnl unpllld at tha
expiration of the ten (10) yellr period, together with anv accrued
Intarelt, mUlt be pllld In full with the flnallnltllllmant hereinabove
provided. .. (Emphasis added.)
French wrote to Kollee later on February 24, 1982:
This will confirm our understanding with resp8Ctto the
conveyance of the Sierra Madre Saloon to James Karaglannls. On
Wadnelday afternoon, February 24, 1982, we exchanged the
documentation naellaary to fulfill the terml of tha Agreement 01
Sele dated May 15, 1982 [lie), The documentation Included a Deed
eK8Cuted by AI Leo as President 01 Leo Ent8rprlses, Inc., and also
Included a Bond, Mortgage and UCC Financing Statements eKecuted by
Jim Karaglannls as the buyer. You advised me that you would
undertake to record the Deed, Mortgage and Financing Statements. , . .
(Emphasis added.)
Karaglannls had been making monthly payments to the seller 01 $3,694,13
since June, 19B1, Notwithstanding, the provision In the agreement of sale dat6d May
IS, 1981, prOViding that the Installment financing 01 the seller was lor a ten year tsrm
.7-
96.4255 CIVIL TERM
96.41136 CIVIl. TERM
bond so that Leo Enterprises, Inc, Ihculd be compelled to satisfy the mortgage,' The
cases were consolidated, D~poslllons were laken and sllpulallons were entered
which the parties agree constitutes the record of the consolidated caseB,
DISCUSSION
Citing the parol evidence rule which preserves the Integrity of written
agrllements by not allowing, with some exceptions, contracting parties to alter the
Import of their contract by prior or contemporaneous extrinsic evidence, ... Lenzi v.
Hlhn.mann Unlv.rally, 664 A.2d 1375 (Pa, Super, 1995), Leo Enterprises, Inc,
argues In Its brief:
The parties' dispute Is limited to whether or not the payments made by
Mr, Karaglannls to Leo Enterprises from July, 1981, through February,
1982, were to be considered payments under the Bond. Leo
Enterprises takes the position that the Bond Is clear and unambiguous
on Its face as to the amount due thereunder, the amount of the
payments, the number of payments and when the payments ~ lbi
~ were 10 commence, Therefore 110 extrinsic evidence Is needed or
allowed to alter the duties Imposed by the Bond,'
* * *
Since the Agreement of Sale was a preliminary matter, It was
superseded by the subsequent written contract, the Bond, and any
parole [sic) evidence to the contrary should not be heard,
3, Pa, Rule of Civil Procedure 1061(b)(3).
4, Leo Enterprises, Inc, acknowledges that the Dead Man's Act would not
apply to the Introduction of any extrinsic evidence because a shareholder of a
corporation and the corporation are two legally distinct entities for the purposes of
analysis under the Act even if the corporation is owned by only one shareholder,
Eltate of HIli, 517 Pa, 115 (1987),
.9.
96-4255 CIVIL TERM
96-4100 CIVIL TERM
We find that the agreement of lale dated May 16, 1981, wal not a preliminary
matter that walluperseded by the execution of the bond on February 24, 1982,
There were two realonlthe deed, mortgage and bond were not executed on May 15,
1981: (1) the sale was contingent on the liquor license being transferred to
Karaglannls, and (2) Karaglannls was stili seeking tax free mortgage finanolng from
the Industrial Development Authority. After the liquor license was transferred on July
29, 1981, which was only a month and a half after the agreement of sale was
executed, Karaglannls was contractually committed to complete the pUI'chase under
the terms of the agreement of sale dated May 15, 1981.' The parties, however,
waited for over a half year to exchange the documents required under the agreement
of sale until It was determined that the Industrial Development Authority would not
provide tax free mortgage financing. On February 24, 1982, a deed, mortgage and
bond were executed pursusnt to the specific terms of the Integrated property
.ettlement agreement of May 15, 1981, that provided under the heading
"Selllement," that after the liquor license was obtained, "[AlII deeds and security
documents required hereunder shall be executed by the parties at 8elllemel'!."
(Emphasis added.)
There Is no evidence of any oral agreement after May 15, 1981, whereby
James Karaglannls and AI Leo agreed that the monthly payments of $3,694,13 which
5. If the Liquor Control Board had not approved the transfer of the license, Leo
Enterprises, Inc, would have been entitled to $10,000 In liquidated damages.
-10-
96.4266 CIVIL TERM
96.4136 CIVIL TERM
Karaglannls started making In June, 1981, which was within fifty days of the execution
at the agreement at sale on May 16, 1981, were tor anything other than payments
made pursuant to that agreement. Any oral agreements made betore or
contemporaneous with the signing of the sales agreement of May 15, 1981, are
barred by the parol evidence rule. B8sldes, the Integrated agreement under the
heading "Complete Understanding," S8t tlJrth "there are no representallons,
agreements, arrangements or understandings, oral or written between and among the
parties hereto relallng the subject malter of this Instrument which are not fully
expressed herein." The correspondence between attorneys French and Kollas
lubeequent to the execullon of the Integrated sales agreement confirms that there
were no agreements between the parties after May 15, 1981, On July 31, 1981,
French wrote to Kollas suggesting that the $3,694.13 monthly payments consisted
entirely of Interest or rent. Kallas wrote back to French on August 3, that the monthly
payment constituted Interest and amortization of the principal, stating, "You will recall
that the sum of $3,694,13 represented the monthly payment to be made In the event
the IDA approval wall not forthcoming, The principal reduction, however slight, Is
to be for the benefit of my client," (Emphasis added.) That statement Is conslstant
with the "Installment Payments" provision of the Inttlgrated agreement of s81e that
provides:
[I]n the event that tax-free mortgage financing Cdn be arranged through
an appropriate Industrial development authority, Interest at the rate of
eight and one-half percent (6 1/2) per annum, shall be paid In one
.11-
96.4256 CIVIL TERM
96.4136 CIVIL TERM
hundrad and nlnetelln (119) equal monthly Installmenta caloulated on
the basis 01 a fifteen (15) year amortization period and In one (1) Ilnal
Installment equal to the entire unpaid principal and Intarest balance, The
Ilrlt luch monthly Inltlllment Ihlll be due Ind pIVlble Illly (50)
dlYI Iner the dlte 0' SeUlement Ind alch lublequent Inltlllment
Ihall be due Ind plYlbla It one month 'nlervlll ther'lner,
(Emph8sls added,)
Notwithstanding, the clear, unambiguous provision tllat the monthly
Installments were payable fifty days after "tha date 01 selllement," and each month
thereafter, which Karaglannls complied with, French prepared a mortgage and bond,
which Karaglannls testified In a deposition he did not read, that changed the payment
schedule with a provision that "[Tlhe first such monthly Installment shall be due and
payable on April 1, 1902, , , ," That provision was a mistake because It did not
conlorm to the specific terms of the agreement of sale dated May 15, 19B 1, which
controlled the terms of the documents to be subsequently executed thereunder,
French changed the provisions In the original mortgage and bond that he had drawn
up after the signing of the agreement of sale on May 15, 19B 1, because he had
written to Kollas on May 29, 1981, tllat "Although I have the Mortgage Ind Bond In
hand, It comes to mind that this will not be a straight mortgage and bond situation
with the Involvement of IDA financing, , , ," (Emphasis added,) Because thera was
no IDA financing, there was no basis to change any of the terms of the documents
securing the financing provided to Karaglannls by Leo Enterprises, Inc, pursuant to
the "Installment Payments" provision In their agreement.
In Its brief, Leo Enterprises, Inc, suggests that Karaglannls Is attamptlng 10
.12.
96-4265 CIVIL TERM
96-4136 CIVIL TERM
rewrite the express repayment terms of the bond based on an oral agreement that
existed prior to the exsoutlon of the bond, Karaglannls has made no suoh attempt.
To the contrary, In paragraph 8 of his action to quiet the litle, he averred:
For the purpo18 of ..curing the debt under the Agreement 0'
S.le, Plaintiff granted a mortgage to Defendant which was dated
February 24, 1982, and recorded In the office of the Recorder of Deeds,
Book 706, Page 748, a true and correct copy of which Is altached hereto
and marked as Exhibits '8,' (Emphasis addadl
In his petition to open the confessed judgment, he averred that he:
[hI" performed fully under the Agreement of Slle and believes that
no default has occul'red for which P:alntlff may confess judgment against
Defendant. (Emphasis added,)
Notwithstanding, Leo Enterprises, Inc, also argues In Its brief:
Any oral testimony and even the written Agreement of Sale, to the eKlent
that It requires oral testimony to show linkage to the Bond, Is considered
an 'oral agreement and precluded by the Statute of Frauds,'
The unambiguous Integrated agreement of sale dated May 16, 19B1, does not require
oral testimony to link It to the bond that was executed on February 24, 19B2, Under
the "Settlement" provision In the agreement "[AlII deeds and security documents
required hereunder shall be executed by the parties at Settlement." In Fannin v.
Cr.tty, 331 Pa, Super, 326 (1984), the Superior Court of Pennsylvania stated that:
The Statute of Frauds provides In effect that no .grlement for the .ale
of rell estate will be enforced unle.. It I. In writing Ind "gnld bV
the plrty to be charged. lis fundamental purpose Is to prevent
assertions of verbal understandings and thus to obviate the opportunity
6, The correct pege number of the mortgage book Is 748, not 748,
-13-
96.4255 CIVIL TERM
96.4136 CIVIL TERM
for fraud and pe~ury, (Emphasis added,) (Footnote omitted,)
The written contract 81gned by the parties on May 15, 1 Sel, for the sale of real estate
In the case llYn ~, was an Integrated agreement. The mortgage and bond
el<8Cuted pursuant to that written contract mlstaklngly set forth terms contrary to the
written agreement. Prool 01 tile terms 01 the Ilnanclng Irom the s8110r to the buyer bV
meen. of the written agreement of eole does not violate the Statute 01 Frauds,
Lastly and Ironically In light 01 Its other arguments, Leo Enterprises, Ino, tries to
rewrite the terms 01 the parties' agreement of sale dated May 15, 1 sa 1, with extrinsic
evidence, It suggests that the letter Kollas wrote on November 20, 11381, to the
attomey lor the Industrial Development Authority, somehow provas that the monthly
payments that Karaglannls had baan making to Leo Enterprises, Inc. since June,
1981, were not made pursuant to the agreement 01 sale dasplte the clear language In
the "Settlement" provision In the agreement. In seeking a decision on tax Iree
mortgage Ilnanclng by the Industrial Development Authority, Kollas wrote to Its
solicitor:
The liquor IICenS13 has been translerred and a lease has been negotiated
with AI Leo lor the building and grounds. However, lor the real estate
transaction to be completed, James Karaglannls needs approval of the
Hampden Township Industrial Development Authority.
In fact, no lease was ever negotiated or entered Into between AI Leo and James
Karaglannls for the building and ground, When asked during his deposition what he
meant when he said that a lease had been negotiated with AI Leo for the building and
.14-
96.421515 CIVIL TERM
96.4136 CIVIL TERM
grounds, Kallas answered:
There Is no question In my mind that the transfer took place, as I
said earlier .. and this Is what we're arguing about.. with the transfer of
the license,
What happened Is thBtthe IDA was sllll considering giving some
tax.free status to his lonn, I don't know how that works, Actually,
Karaglarmls got Involved In that before he came to me with the
agreement of sale, But the fact of the malter Is that as of the transfer of
the liquor license, the IDA hadn't made up Its mind,
And AI Leo, according to Karaglannls, was very anxious to sell the
Sierra Madre, So Karaglannls had moved In even prior to the transfer of
the liquor license,
The only thing 111at was held In abeyance was the transfer of the
deed and the purchase money mortgage because It was my
understanding that If that took place before the IDA came up with a
decision, that he would no longer qualify for an IDA loan, whatever that
meant. And I'm not too sure that I understood what I! meant at the time,
whether It gave the loan tax-exempt status and AI was going to loan
him the money or the loan actually came from the IDA, I didn't know,
But the reason that I used the language that I used with Henry
Coyne was so that It didn't preclude the IDA financing that Karaglannls
was seeking. And the lease that I referred to was, In my mind, If they
would have asked me, I would have said It was the lease purchased,
that he commenced -- I remember that he commenced making
payments under the agreement of sale of May 16th Immediately upon
transfer of the liquor license,
I knew of no lease arrangement between Karaglannls and AI Leo
other than he was In there running the place, The liquor IIcensa was his,
He was to begin payments to Leo Enterprises, and he was to receive
credit for that on the amortization schedule, as given to you by Bruce
Bayuk [Karaglannls' accountant], And I think my correspondence
reflects that with Gary French,
Kallas' lelter to French dated November 20, 1981, and his deposition testimony
do not and cannot change tha unambiguous terms of the written agreF.lment of sale
between the pertles dated May 16, 1981, Furthermore, French wrote to Kollas on
May 29, 1981, fourteen days after the agreement of sale was executed:
.16.
96.421515 CIVIL. TERM
96-41'36 CIVIL. TERM
Although I have the Mortgage and Bond In hand, It comes to mind this
will not be a straight mortgage and bond situation with the Involvement
of IDA Ilnanclng, Th. prop.rty will hlv, 10 reconv.y.d to Ih. IDA,
which would 1.11 or I.... II back 10 Jim. Accordingly, I believe thai AI
L.eo's mortgage would run Irom the IDA and that those documents will
be prepared by IDA's counsel. . .. Therefore, I have disregarded the
portion 01 the Memorandum of Under8tandlng daled May 16, le81,
which requires Alto execute a mortgage prior to release 01 the $70,000
escrow lund. I have this weell released those monies to AI. (Emphasis
added,)
The use 01 the word "lease" by French In this letter to Kollas and by Kollas In
his letter to the attorney lor the Industrial Development Authority, related to the
prooedure lor IDA tax Iree mortgage Ilnanolng and not the terms 01 the $426,000 aale
between L.eo Enterprises, Ino, and Karaglannls as setlorth in their written agreement
dated May 16, 1981, Furthermore, as set lorth In his letter to Kollas dated May 29,
1981, French had already translerred to L.eo Enterprises, Inc. the $70,000 he was
holding In escrow Which under the agreement of sale was "due on or before the date
of Settlement" Clearly, the Implementation of the terms 01 the agreement of sale of
May 16, 19B1, started to move lorward Immediately atter It was executed Including
Karaglannls Instituting monthly payments to the seller under the "Installment
Payments" provision In the agreement. L.eo Enterprises, Inc. cannot now colleot an
additional $33,883,46 not provided lor under the payment terms 0lth8 agreement of
sale because the mortgage and bond drawn by Its attorney did not conlorm with
thOSE! terms,
For the foregoing reasons, the following order Is entered,
-16-