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HomeMy WebLinkAbout01-03705 . ",' .,,,.," - - ---. -'.-,-,,- ~'_. -A - --",,-- -;, '-C" ,. "" ",.' c' ,;,: _.' ,.:,.,,- ,. ~"~j- .,/, .' .>";_,' ':;'~;<";:;d ',lV_'; ,- "c' ,,,~"~d";:_,,, ~. ,- '-:, . ) J ) ~"r. ';, ; .. Barbara Sump1e-Sullivan, ES\l"ire Supreme Court #32317 ~ 549 Bridge Street , New Cumberland, P A 17070 (717) 774-1445 FERN L. WILSON and FERNROCK-SNYDER, INC., Plaintiffs : IN THE COURT OF COMMON PLEAS : CUMBERLAND COUNTY, PENNSYLVANIA v. ~ NO. 0/- 370-5 H : In Equity McDUNKS, INC., IRA 1. McMANUS, JR., LESLIE 1. McMANUS, KAREN L. DUNKLE, and THE ESTATE OF JAMES R. DUNKLE, Defendants NOTICE You have been sued in court. If you wish to defend against the claims set forth in the following pages, you must take action within twenty (20) days after this complaint and notice are served, by entering a written appearance personally or by attorney and filing in writing with the court your defenses or objections to the claims set forth against you. You are warned that if you fail to do so the case may proceed without you and a judgment may be entered against you by the court without further notice for any money claimed in the complaint or for any other claim or relief requested by the plaintiff. You may lose money or property or other rights important to you. YOU SHOULD TAKE TillS PAPER TO YOUR LAWYER AT ONCE. IFYOU DO NOT HAVE A LAWYER OR CANNOT AFFORD ONE, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW TO FIND OUT WHERE YOU CAN GET LEGAL HELP. CUMBERLAND COUNTY BAR ASSOCIATION 2 LIBERTY AVENUE Carlisle, Pennsylvania 17013 (717) 249-3166 " ' " <--...~; ,- .-' .; ,. , . ,," -" '~-'- . "-"; '""-\;,b; .'"..'-,',. cc. ,2'"j:';'~"",',---,;,~- ",;iJ;k~,;t-.,~:___; . 'iiifii . , c ) Barbara Sumple-Sullivan, Es~uire Supreme Court #32317 549 Bridge Street . New Cumberland, P A 17070 (717) 774.1445 FERN L. WILSON and FERNROCK-SNYDER, INC., Plaintiffs : IN THE COURT OF COMMON PLEAS : CUMBERLAND COUNTY, PENNSYL VANIA v. : NO. o/-.3?o.:) ~ '/~ : In Equity McDUNKS, INC., IRA 1. McMANUS, JR., LESLIE J. McMANUS, KAREN L. DUNKLE, and THE ESTATE OF JAMES R. DUNKLE, Defendants COMPLAINT FOR EQUITABLE RELIEF, PRELIMINARY INJUNCTION AND SPECIFIC PERFORMANCE THE PARTIES: 1. Plaintiff is Fern L. Wilson, an individual residing at 68 Cumberland Road, Lemoyne, Cumberland County, Pennsylvania 17043. 2. Plaintiff is FernRock-Snyder, Inc., a Pennsylvania corporation with offices at 68 Cumberland Road, Lemoyne, Cumberland County, Pennsylvania 17043. 3. Defendant is McDunks, Inc., a Pennsylvania corporation, with offices at 3806 Hearthstone Drive, Camp Hill, Cumberland County, Pennsylvania 17011. 4. Defendant is Ira 1. McManus, Jr., an individual residing at 824 Kings Highway, Mickleton, New Jersey 08056. ~, ,. -."'-- "'-" " ~ ~ ,_ "'-~~''''~'>'' O;;"-:';;""'~' -'n,.'':; _""_'_:'_;__;- ;"_,_. ii~ . .. 5. Defendant is Leslie J. McManus, wife ofIra 1. McManus, Jr., an individual residing at 824 Kings Highway, Mickleton, New Jersey 08056. 6. Defendant is Karen L. Dunkle, wife of James R. Dunkle, an individual residing at 3806 Hearthstone Road, Camp Hill, Cumberland County, Pennsylvania 17011. 7. Defendant is the Estate ofJames R. Dunkle. Mr. Dunkle died on or about May 4, 2001. BACKGROUND OF COMPLAINT: 8. This action arises out of a series of events incident to the execution of two (2) Agreements, an Installment Sales Agreement for real estate and a Purchase Agreement for assets used and useful for operation of a bar/restaurant. The trade name transferred was "Pete's Cafe" and the location of the real estate is 401-403 Market Street, New Cumberland, Cumberland County, Pennsylvania 17070. THE INSTAHMENT SALES AGREEMENT 9. On or about April I, 1999, PlaintiffFem L. Wilson had entered into an Installment Sales Agreement to sell certain real estate located at 40 I -403 Market Street, New Cumberland, Cumberland County, Pennsylvania to Defendants, James and Karen Dunkle and Ira and Leslie McManus. 10. Pursuant to the Installment Sales Agreement, the purchase price of the real estate was -2- ^ ~' " -,,,' '..L - -_">,,~,, - <,:- J - "-, 0.,,,'-\' ,,'_'-.," -~ ,~. _)--",-<,-:", '0' 0_ ,-. f~ ~ :0 Two Hundred Ninety-Five Thousand Dollars ($295,000.00). Thirty Thousand Dollars ($30,000.00) of said sum was paid at the time of the closing. The principal sum of Two Hundred Sixty-Five Thousand Dollars ($265,000.00) was to be amortized over a twenty (20) year period with interest at the prevailing applicable federal rate (mid term) but not less than 5.25%. The payment was to be paid in eighty-four (84) equal monthly installments of One Thousand Seveu Hundred Eighty-Five Dollars aud 69/100 ($1,785.69) with a balloon due on the eighty-fifth (85th) month due in the amount of Two Hundred Two Thousaud Four Hundred Sixty-Eight Dollars and 41/100 ($202,468.41). A copy of the April 1, 1999 Installment Sales Agreement is marked as Exhibit "A", attached hereto and incorporated by reference herein. 11. The building at issue has been recently assessed by Cumberland County Tax Assessor's Office of having a value of Two Hundred Eighty Thousand Eight Hundred Thirty Dollars ($280,830.00). A copy of the Assessment is attached here~o as Exhibit "B" and incorporated by reference herein. 12. Defendants had made the payments after the June, 1999 settlement for the period of July, 1999 to July, 2000 and then ceased making the payments, although not always timely or with appropriately tendered checks. During that time period, the principal of the amount due on the Installment Sales Agreement was paid down Niue Thousand Two Hundred Nineteen Dollars anlll 54/100 ($9,219.54), leaving a balance due and owing of Two Hundred Fifty-Five Thousand Seven Hundred Eighty Dollars and 46/100 ($255,780.46). -3- - ," ~"~ .'",' ,,'''' ',,- - , -, _ ~_- . 0; '0 ~ ,-; ~-'-"__ '.-_ ",_ 'cd"~:' "'..,, ' ,,-,,:,_;/ :-:" ;i '--, ~ ...-.- -- ,- . :i ~ ) ) 13. Defendants ceased to make the required payments beginning in August, 2000 and represented financial difficulties. After repeated promises to make payments in response to Plaintiffs' demands for payment, and after receipt of checks which bounced, Plaintiff, Fern L. Wilson, filed a Complaint to Confess Judgment for Possession of Real Estate on October 3, 2000 in the Court of Common Pleas of Cumberland County to Docket Number 2000-6778. 14. In response to the filing to the Complaint to Confess Judgment for Possession of Real Estate, Defendants timely filed a Petition to Open Judgment raising as a defense, on or about November 1,2000, that Defendants were defrauded in the transaction averring that the value ofthe assets or income of the business were exaggerated and certain alleged business practices used by in operation of the business were not disclosed in the negotiations of the transactions. 15. The Court, after oral argument, issued a rule on the Plaintiff to respond to the allegations, which answer was filed on February 28, 2001. A schedule of discovery is ongoing with depositions scheduled for Monday, June 18,2001 and continuing on June 19,2001. Briefs are due on June 25, 2001 and oral argument on the Petition to Open Confessed Judgment is scheduled for July 2, 2001 at 8:30 a.m. before the Honorable J. Wesley Oler, Jr. 16. Pursuant to the Order dated April 12, 2001 in a companion case designated as FernRock- -4- ~~,<- ~__o-,'_,___'_'_'_ .,- - -_... Y-.';;.,.. ..- -',.",+ .- , ,..~",-,- --,-,<" : ,-~:...;",-,.': -".~_" r;,,__-~,_,":" ,'," ~"""",'__" "_,( -,,-'_, __J'" ,-- ,.', ,,'c - ~ ., ) Snyder, Inc. v. McDunks, Inc., Ira J. McManus, Jr., Leslie J. McManus, James R. Dunkle, and Karen L. Dunkle, the Court appears to consolidate these cases for discovery and argument. A stay was issued in the Order under caption Docket Number 2000-6777, the exact impact on this docket number is not clear. 17. Defendants have continued to utilize the premises for operation of a bar/restaurant and have individuals residing in the rental apartments in the premises. 18. Despite the fact that Defendants continue to use the property, only Three Thousand Dollars ($3,000.00), has been remitted in payment despite the monthly rental obligation of One Thousand Seven Hundred Eighty-five Dollars and 69/100 ($1,785.69) pursuant to the Installment Sales Agreement. 19. Despite representations to do so and repeated breaches, Defendants have not relinquished their use of the property or possession to the legal owner, PlaintiffFem L. Wilson. THE ASSET PURCHASE AGREEMENT 20. On or about April I, 1999, Plaintiff, FemRock-Snyder, Inc. and Defendant, McDunks, Inc. entered into an Asset Purchase Agreement for sale of certain assets used and useful in operation of a bar/restaurant known as "Pete's Cafe". The Agreement specifically identified the assets transferred which included a PelUlsylvania Liquor License, personalty, goodwill and other intangibles. A copy of said Agreement is marked as Exhibit "C", attached hereto and incorporated by reference herein. -5- -". " ".-,-,;, . ,__- ," ,<_",.,,",'," " "<'h " :., '""< ,-,;,1-':<:,0 "?-;'.;:, . ,'. . ~;,'" -,,'.-'-. ,," "-,'- ,,,,- ",:;;' ': L;'~.2(:" ,J--,; ',.~,~,,,;;..,,,;,:-, " '01-'~,c, .x,,:: ~'::L~,:~i~:;:~:.:"" ,,; ~_ ." ': ,- ;1 .. 21. The purchase price of the Asset Purchase Agreement was One Hundred Thirty Thousand Dollars ($130,000.00), payable Fifteen Thousand Dollars ($15,000.00) at the time of closing and the remaining One Hundred Fifteen Thousand Dollars ($115,000.00) amortized over a twenty (20) year period at the applicable federal rate (mid term) with a balloon payment of Eighty-Seven Thousand Eight Hundred Sixty- Three Dollars and 68/100 ($87,863.68) on the eighty-fifth (85th) month. The interim eighty-four (84) equal installments were due on the first day of every month in the amount of Seven Hundred Seventy-Four Dollars and 92/100 ($774.92). 22. Defendant McDunks, Inc. made monthly payments, although not always timely or with appropriately tendered checks, for the period of July, 1999 through July, 2000, which reduced the outstanding principal balance by Three Thousand Nine Hundred Fifteen Dollars and 24/100 ($3,915.24) to One Hundred Eleven Thousand Eighty-Four Dollars and 76/100 ($111,084.76). 23. Defendants ceased to make payments beginning August, 2000. After repeated promises to make payments in response to Plaintiffs' demands for payment and after receipt of checks which bounced, Plaintiff, FemRock-Snyder, Inc. filed a Complaint for Confession of Judgment for money damages in the Court of Common Pleas of Cumberland County to Docket Number 2000-6777 on October 3, 2000. 24. Because the individuals James and Karen Dunkle and Ira and Leslie McManus had also -6- ~. -,_,'-c_c'_;- . ~",-I-;'~-j, - ,~' '"' '"'-""'-~-' -',;:',', "~' :<.'""-,,L.-- -_:re;'_; ;";'-"'-'h':;;'~';;'V-"'';;,:;'-,; "'~_ _,,__; -~ - ":~ ~ , personally guaranteed the obligations of the Defendant McDunks, Inc., of which corporation they are all sole shareholders, the money judgment was also confessed against them. 25. No petition to open was timely filed in this matter. 26. Presently owing under the confession of judgment is the sum of approximately One Hundred Twenty-Seven Thonsand Three Hundred Sixty-Seven Dollars and 66/100 ($127,367.66), which represents the principal balance due of One Hundred Eleven Thousand Eighty-Four Dollars and 76/100 ($111,084.76), late charges of Three Hundred Eighty-Four Dollars and 75/100 ($384.75), interest charges of Four Thousand Three Hundred Fifty-Eight Dollars and 001100 ($4,358.00) and confession fees of Eleven Thousand Five Hundred Seventy-Six Dollars and 151100 ($11,576.15). 27. Plaintiff had executed on the judgment and levy was made on all property located at the premises, including the liquor license on January 18,2001. A Sheriffs sale date was pending. 28. Petitions to Open the Judgments were then filed four months after the Petition, on or about April 2, 2001 by counsel, Samuel Andes, Esquire, on behalf of Defendants James and Karen Dunkle and by counsel, Lee Applebaum, Esquire, on or about AprilS, 2001 on behalf of Defendants Ira and Leslie McManus. -7- ''', .~" ",.'~ L"<''''''~'' I, '---,;, -' '-Al'_ .'",'_",-,,' "V,,__.,'. . ",."c.;.",,-,,, ';-, ",c;j>_'--'~~i~"., _Cd"" '-~';J-;';~-;;' ',_-:":;::,~;;::;~':'::i~. ..',. ",,',' ~-' .~_,.. . 29. Plaintiffs contend that these Petitions were untimely since they exceeded the thirty (30) day period following the filing ofthe judgments. 30. Despite the untimely nature of Defendants' Petitions, the Honorable J. Wesley Oler, Jr., by Orders dated April 12, 2001 and April 23, 2001, reserved the issue for later determination. Said Orders then consolidated the two actions for discovery purposes and stayed all pending execution proceedings, and developed a schedule for discovery, briefs and oral arguments. 31. The stay of the proceedings terminated the Sheriffs sale which was scheduled for May 23, 2001. 32. The time deadlines for the discovery have been disrupted because of the sudden and unexpected death of Defendant James Dunkle on May 4, 2001. A Suggestion of Death was filed to the record on May 8, 2001, but no estate has yet been opened. 33. Defendant McDunks, Inc., through its agent Defendant Karen Dunkle, has intermittently operated the bar/restaurant since the time of her husband's death. PRESENT CIRCUMSTANCES: 34. Of the principal amount due on both original contracts of Four Hundred Twenty-Five Thousand Dollars ($425,000.00) after closing, Defendants have paid only a nominal sum of Sixty Thousand One Hundred Thirty-Four and 78/100 ($60,134.78) or -8- "c' ,,--0- .~ .< ""--,,-' '-~"--~ '-~" - k'(~~__" >,,'J"" ,<_':o,c>,,",,j.',:" ,~",-",~-,-,'-.:L',,,::. ~t "__,..,.-"",,_.' ,_> '-'_".h~J'l(;L;!;;':""",~,~,- :::\~ .. f 13.67%. Yet, Defendants continue to fully possess and deny Plaintiffs access to payment or return of the assets due to allegations offraud and misrepresentation, which allegations are and have been denied by the Plaintiffs. 35. It is further asserted that even if the representations were proven to be true and the judgments opened, Defendants would be required to pay the value of the assets actually received as mitigated by the alleged fraud. Given the values attributed to the building alone by the tax assessment and the value of the hard assets acquired (liquor license of approximately $70,000.00 and personal property of $30,000.00), which assets have been in the possession and use of the Defendants since June of 1999, any sums due will far exceed the amount paid even after set off. 36. Plaintiffs have suggested recission and return of the assets transferred with further litigation to proceed on a determination of mutual and actual damages for all parties at a subsequent date. This has not occurred. 37. The continued holding of the assets by the Defendants, coupled by the reckless care and dissipation of the assets during this interim time, is causing irreparable harm to the interests of the Plaintiffs. Evidence of dissipation is as follows: a) Lack ofInsurance Coverage: 38. Pursuant to paragraphs 13 and 14 of the Installment Sales Agreement, Defendants were to provide Four Hundred Twenty-Five Thousand Dollars ($425,000.00) property -9- '- ,.:.".".- "-.--'", ,~ ~ ,.-1"" .'~I:'_ .' _~_--_j:-,o_/...,.:--:' .... _ ,. - ,-.. ~: ",""< ,--.'-;;,,;-.'b'_o-- ;,-',,, , .; <,- "'_'!'__ ;':,~~ ';","--;J~:'.i5"-;' ' . insurance and One Million Dollars ($1,000,000.00) in general liability insurance, naming PlaintiffFem L. Wilson as an additional insured. 39. For the period believed to be February, 2000 to July, 2000, Defendants had failed to carry the necessary or contractually mandated insurance on the property. Only after threat of default was insurance instituted. 40. Plaintiffs have been attempting to verify the existence of coverage on the building and business on a periodic basis. Present coverage has not yet confirmed since the policy is paid monthly. It is known that the existing policy will expire on July 18, 2001. b) Property Taxes: 41. Pursuant to paragraph 8 of the Installment Sales Agreement, Defendants were to pay all real estate taxes and provide proof of payment. 42. Defendants did not pay the taxes on time for tax year 2000 and only after threat of default, were these then satisfied in late January, 2001. 43. Presently, Defendants have not paid 2001 property taxes. The county and borough tax of Nine Hundred Forty-Nine Dollars and 76/100 ($949.76) due on June 30, 2001 remain unpaid, as well as the school taxes of Two Thousand Seven Hundred Fifty-Two Dollars and 13/100 ($2,752.13). -10- , .-,' , .,~- '"",,, ,..-or, ",.-;-ei,.'J-' " ..'~' l",~~~__:' . "J'>":,_-,":.!.,.~,~",J~~-_-_~~..' '-,,,,,::"'_~_ ~__ -;d.;)~J~, '-., , "".''';'.;; -'-,,;,,,;," .0:" -;"--"--'! .-~i:~i 11 c) Liquor License: 44. Defendants have also jeopardized a Pa. L.C.B.license # R-15960 and TR-15960, the major asset purchased by the Asset Purchase Agreement, through their operation of the business. 45. Said license is under strict regulation by the Commonwealth of Pennsylvania and may be subject to complete forfeiture in the event of improper operation or other cited deficiencies. 46. Since the entry of the default, Plaintiffs have determined that numerous violations and citations have been issued against the license. Some of these have occurred because of the Defendants' tender of checks for insufficient funds for liquor items. A fine for one of these citations of$75.00 continues to be outstanding and was due on May 31, 2001. This continuing condition has jeopardized the existence of the license. Another recent citation, #01-1120, was filed on June 13,2001 but the reason for same is unknown. 47. Said actions constitute another default of the Asset Purchase Agreement, paragraph 5.1(d) since Defendants have failed to pay all fees and charges required by the Pa. L.C.B. and have had frequent citations sufficient to place the license in jeopardy ofrevocation. 48. It is believed and averred that Defendants have allowed persons untrained in bartending and cooking to operate the business, thus further increasing the likelihood of a liability producing event, such as a dram shop action, to occur and forfeiture or further citation -11- ~-- ' , '"'c.". '_' ,,-..-'~,-J,,' '-;0"""-' -,-f <"'.c - ~-_ ,;d / "~ ,-<;-, -", _, -d"' :.i ;':.'''"_~ j;,'c;;;..- ~. ;; ,;.;,--""-' ,'_,,;,,' "-">OL"~-1,,-':;,"" c against the liquor license. 49. The continued operation ofthe business in this state is causing irreparable harm to the good will of the business transferred. 50. Since the death of James Dunkle, the business has operated on an intermittent basis, potentially in violation of the Pa. L.C.B. licensing requiring regulations which requires the license to be tendered for safekeeping if any establishment is closed for a period in excess of fifteen (15) consecutive days. 51. Plaintiffs' counsel has learned, through statements made by counsel retained by Defendant Karen Dunkle to represent her in a bankruptcy filing, that it is her intention to close the business as of Saturday, June 16,2001 and no guarantee has been made that the license will be placed in safekeeping so as to ensure it is not forfeited. 52. It is also understood that the bankruptcy of Defendant Karen Dunkle may be filed as soon as the day set for the convening of her deposition in the matters presently pending before this Court at Docket Numbers 2000-6777 and 2000-6778, which are scheduled for Monday and Tuesday, June 18th and 19th, 2001. d) Structural Damag~ to Premises: 53. Defendants have and continue to cause structural damage to the building. Their actions have resulted in the following damages to date: -12- ~ -~ ~,,,',- ,,-, '^~,-- - , ,-,,'- ,<--,--. ~"-_~,_;;, ,"_1_,,;__" - -- ",''''-'' , J,.->,--- . "'.-.. -" ," :,-,;:,-:,j'"'A'" -,,,--.,,,c-,' '-,[;1':,0;(,",-" -. ,,,,c_, jL>.--ci: ,--_,__'\>, "-"::C:;L:;;::;;;<__',~-_ - .' ,- >" ~'i' ,. A. Need for numerous repairs throughout the premises. A complete itemization is contained in Exhibit "D" attached hereto and incorporated by reference herein. B. Need for extensive cleaning due to the filthy condition of the establishment, which condition raises the further possibility of health ordinance violations. C. Need for repair of damage to the HV AC and refrigeration systems. Attached Exhibit "D" contains an itemized estimate for repair from Advanced Contracting Services, Inc. D. Structural damage to the apartment. At the time of the transfer of the real estate to Defendants, there were two apartments on the second floor of the premises which Plaintiff had rented out. After the transfer, one of the apartments is in use by Defendant Karen Dunkle's daughter. The other apartment is in complete shambles. Work was started but never completed. Debris is everywhere. The kitchen and bathroom are non-functioning with fixtures missing (toilet and sink). Attached to Exhibit "D" is an itemized estimate for the repair of this apartment from Creative Construction totaling Seventeen Thousand Four Hundred Eight Dollars ($17,408.00). 54. Such actions are in clear violation of paragraph 12 of the Installment Sales Agreement which require the premises to be kept in good repair, order and condition. Said paragraph further prohibits any undertaking of demolition or structural alteration and improvement without the written consent of Plaintiff, Fern 1. Wilson. 55. Plaintiff, Fern 1. Wilson is without full right to inspect the property since she has been precluded from same despite her expressed right to so inspect pursuant to paragraph 16 ofthe Installment Sales Agreement PERSONALTY REMOVAL: 56. Plaintiffs have determined that, despite the levy by the Sheriff, items of personalty levied upon are being removed from the premises in violation of the levy and the terms of -13- . ~ ~. ~' , 'e~._ ~' , ,o.C ,-' "''':-'~ _.' "_1"'; '- " -~-,,' ,-,-'.- ""," -~" ". ". _,,,",,__ ,'<-'"", - ;,J_. '-' ". ,.;,-'~'-~,:_:~:,;,:.-~;-~~i;;'-,::~_;>_~:r:_': - ~ _, ,- '~ . paragraph 12 of the Installment Sales Agreement. CORPORATE FAILINGS: 57. It has also been determined that the Defendant corporation may have claims or liens against it for non-payment of state and federal taxes (including income, payroll and withholding), worker's and unemployment compensation taxes, which might cause forfeiture of or impact the assets of the corporation, including the liquor license. 58. Since the death of James Dunkle, there has been no election of officers and Defendant, McDunks, Inc. is without a President. 59. Pursuant to paragraph 3.2 of the Asset Purchase Agreement, Plaintiffs have a lien on all issued and outstanding stock of Defendant McDunks, Inc. and are entitled to vote same in the event of the default. 60. Plaintiffs desire to effectuate, pursuant to this authority, the right to vote transfer the liquor licence into safekeeping and commence the transfer back to the ownership of FernRock-Snyder, Inc. so as to avoid forfeiture of this asset while in the hands ofthe Defendants, which action will result in irreparable harm. 61. Actions toward potential closing of the business have not been placed for vote at any appropriate shareholders' meeting, denying Plaintiff, Fern L. Wilson, her right to vote her shares on this issue. -14- ~~~ " ,,',~ '-'- :,.,'., - \-, .";i,, ~ ,- - ".~~':-I:-~,o-':_;-"_/ ,,,.., .. , '.,'__"j.'_C'. ".,-.,;",";.-"~.j,- --;,"_'t_,~, . ,'.,;.. __~. "o.~-:"',';__',1;~ -:-i'~"'''':.'-",i>i , r 62. Plaintiffs will incur irreparable harm due to the actions of the Defendants in their handling of the assets. WHEREFORE, Plaintiffs request this Honorable Court grant the following injunctive and specific performance: 1) Issue an injunction prohibiting the operation ofthe business and requiring the license to be placed in safekeeping; 2) The appointment of a supervisor for the appropriate handling of the corporate affairs ofMcDunks, Inc. and to grant a receiver to handle the financial affairs of the company. This shall include convening a meeting of the shareholders for election of officers and to require a vote to be taken on the issue of transfer of the liquor license to Plaintiff, FernRock-Synder, Inc., in accordance with the terms of the lien created pursuant to the Asset Purchase Agreement; 3) Award specific performance of the Agreements to Plaintiffrequiring Defendants to pay as required under the Agreements, all necessary taxes and insurance coverage, as well as to maintain the property; 4) Prohibiting any further structural changes to the property or damage to the real estate; 5) Issue an injunction to prohibit the dissipation of the assets, as well as to prevent the removal ofthe items of personalty from the premises; 6) Require Defendants to post a bond to secure the past year of payments under the Agreements and to secure future payments due; and 7) Any other equitable relief deemed appropriate. Dated: June d, 2001 If1rbar~ Sumple-Sullivan, Esquire 549 Bndge Street New Cumberland, P A 17070 (717) 774-1445 Supreme Court J.D. #32317 Attorney for Plaintiffs -15- - '_ 0_ "" 0' _h _ j,,,,,,, ," ~, ,. . EXHIBIT "A" 0"- -"", ~ il:* ,~ . ,- - -,' ;-,-,--,; '. __~~_~_.~~_,~.~.~~.~' --",-, ':y,- 0:,-' ,~, '-"~" -, '0"':" ' ~ >t;~, - '..-._0..'____ __,.__"_~~. ..1' "'..)- . , \:. 'I I- ~ Th 1 J r . . r ; , , . ,. INSTALLMENT SALES AGREEMENT THIS AGREEMENT made this /6/ day of f) P;el L , 1999, by and between FERN L. WILSON, of New Cumberland, Cumberland County, Pennsylvania (hereinafter referred to as "Seller") and IRA J. McMANUS, JR. And LESLIE J. McMANUS, his wife, ofMalaga, New Jersey and JAMES R. DUNKLE and KAREN L. DUNKLE, his wife, of Camp Hill, Pennsylvania (hereinafter referred to as "Buyers"). WITNESSETH: WHEREAS, Seller is presently the owner of a certain parcel of real estate known as 401-403 Market Street, New Cumberland, Cumberland County, Pennsylvania (hereinafter referred to as the "Premises"), which premises are more particularly bounded and described in Exhibit "A"; WHEREAS, Seller agrees to sell and Buyers agree to purchase said Premises under and subject to the terms and conditions set forth herein; WHEREAS, Buyers are additionally purchasing from FernRock-Snyder, Inc., a Pennsylvania corporation of which Seller is the principal, certain assets used and useful in operation of a bar, restaurant and catering business known as Pete's Cafe, which Agreement is attached hereto as Exhibit --,"-... . > .' '-"~--' , ',,~ - ." - ",,~.,~,:~-,,~:~. - .~"'*" l' .{\..~ 1 . < . " r . \ , .' "B" and incorporated herein by reference; WHEREAS, purchase of real estate by Buyers pursuant to this Agreement is contingent upon successful consummation of Buyers' purchase of said assets of Pete's Cafe and complete satisfaction of all payments due pursuant to said Agreement attached as Exhibit "B"; NOW THEREFORE, in consideration of the mutual covenants contained herein and intending to be legally bound hereby, the parties hereto, on behalf of themselves, their heirs, successors and assigns, agree as follows: 1. Incorporation of Recitals. The recitals set forth in the above whereas clauses are incorporated herein as substantive provisions of the parties' agreement. 2. Real Estate. The Seller agrees to sell and the Buyers agree to purchase all that certain premises situate in the Borough of New Cumberland, Cumberland County, Pennsylvania, as more specifically described in Exhibit "A" attached hereto and incorporated herein by reference. 3. Pnrchase Price. The purchase price to be paid by the Buyers shall be the sum of Two Hundred Ninety-five Thousand ($295,000.00) Dollars, to be paid as follows: (a) Thirty Thousand ($30,000.00) Dollars upon Closing of the parties' business asset acquisition of Pete' s Cafe as set forth in Article 10 of the Asset Purchase Agreement 2 '''. o _ , - ,J " , _, " ~'" "-~, l ~' -_h<~"I~' "! ~" . ij . , < .< I , . attached as Exhibit "B". (b) The principal sum ofTwo Hundred Sixty-five Thousand ($265,000.00) Dollars shall be paid in eighty-four (84) equal monthly installments subject to the adjustment as set forth in paragraph (c) hereof. Interest shall be at the prevailing applicable federal rate (mid term) at time of Closing but not less than 5.25% amortized over a twenty (20) year period. A balloon payment shall be due for the remaining balance on the first day of the ei~ty-fifth (851h) month following Closing as defined in Article 10 of the Asset Purchase Agreement attached as Exhibit "B". Specifically, assuming an interest rate of5.25%: (1) Monthly payments of One Thousand Seven Hundred Eighty-five and 69/100 ($1,785.69) Dollars for eighty-four (84) payments with the first payment being due on the first day of the first calendar month following Closing and on every first day of the next eighty-four (84) months. Ifany payment is not made by the tenth (lOth) day of the month, Buyers shall pay an additional five (5%) percent of the montWy payment due as penalty. Said late charge shall be paid by Buyers to Seller with the montWy installment due and owing. The full balance of Two Hundred Two Thousand Four Hundred Sixty-eight and 41/100 ($202,468.41) Dollars shall be due on the furst day of the eighty-fifth (85th) month following Closing. A copy of the Amortization Schedule is attached hereto as Exhibit "C". (c) Buyers shall have the right to prepay the purchase price. However, said right to prepay is specifically contingent upon Buyers simultaneously satisfying all sums due 3 ~ , .' .. ._. _, .. ~_ ,-, '_ ' -,-', "''''"'' ,,'^ - '-d' ~- " ".<i--.~ " _cd.' J-T~':;; ~ . ~ ~ , I . , and payable pursuant to the Asset Purchase Agreement attached as Exhibit "B". (d) All of the above stated payments are to be made payable to Fern L. Wilson at 68 Cumberland Road, Lemoyne, Pennsylvania 17043 or such other address as Seller may advise. Should Buyers fail to make the monthly installment payment in full, as provided in the paragraph 3(a) or 3(b) hereof within fifteen (15) calendar days after the same shall be due and payable, then Buyers shall pay an additional five (5%) percent of the payment due as penalty. Said late charge shall be paid by Buyers to Seller with the installment due and owing. 4. Transfer of Tide to the Premises. On the payment of the full purchase price, title to the premises shall be conveyed from Seller to Buyers at final settlement. . Final settlement shall occur in accordance with Paragraph 23 of this Agreement. Transfer of the real estate shall be by special warranty deed and title shall be free and clear of all liens and encumbrances except those easements and restrictions presently of record, and also subject to any liens or encumbrances which Buyers may have caused to be created during the term hereof. Seller, upon the execution of this Agreement, shall deliver to the law firm of Barbara Sumple-Sullivan, Esquire ("Escrow Agent") a special warranty deed for the real estate executed by the Seller. Escrow Agent shall accept, take custody of, and keep safely the deed. Upon Buyers' presentment to Escrow Agent of proof satisfactory to Escrow Agent of the payment in full of the purchase price and Buyers' full performance of all other terms and conditions of this Agreement and all conditions of the Asset purchase Agreement attached as Exhibit "B". Escrow Agent shall deliver to Buyers the deed to the 4 --.<.. . . ~- ~ . .J_ l". " '""" '""~~- :'. :-."'" ,"';' , , ~ -;;. ":-: :~~o .'~ ~'. ._~_ :LiI~" , . > , t . 'J , . , premises. Escrow Agent shall not have any duty or obligation to take any action with respect to the collection of any of the. indebtedness represented by this Agreement or the Asset Purchase Agreement attached as Exhibit "B" or to otherwise act with respect to these Agreements, except that, upon presentment of receipts or other acknowledgment or proof of payments of the obligation hereunder, Escrow Agent shall deliver the deed in its custody to Buyers. 5. Possession of Property. Buyers may enter into possession of the property and continue in such possession for and during the life of this Agreement. Possession shall commence with the satisfactory Closing of the Asset Purchase Agreement attached hereto as Exhibit "B". Buyers shall maintain such premises and all improvements thereon in good repair, and shall permit no waste thereof and shall take the same care thereon as a prudent owner would take. 6. Assignment. Buyers shall make no transfer or assignment of their rights pursuant to this Agreement to any third party without the express written approval of the Seller. Seller may assign its rights under this Agreement with notice to Buyer. 7. Municipal or State Improvements. Buyers agree to pay for any and all improvements to the premises done or ordered to be done by any municipality or state authority during the term of this Agreement and to comply at their own cost and expense with all notices received from public authorities from and after the date hereof. 8. Taxes and Assessments. Buyers agree to payor to cause to be paid to the 5 ,~:r.:.i?/ ''..1I1P;': " . ."" .- :~._,. ,;- -" "' . . li > , 1 , . appropriate governmental authority as an addition to the purchase price, before they would become delinquent, an amount of money equal to all real estate taxes, including township, county, and school taxes, assessments, water rents, sewer rents, and charges and other governmental charges, general and special which are assessed or inIposed upon or chargeable against the Premises at any time after the date hereof and thereafter throughout the terms hereof as if the Premises and all inIprovements thereon were owned by Buyers unless such taxes or assessments are being contested in good faith and Buyers has provided adequate security for the payment thereof pending final adjudication. All property real estate taxes shall be prorated to the date of this Agreement. Buyers shall provide Seller with proof of payment of said indebtedness within fifteen (15) days after the due date for said expense. In the event of Buyers' failure to make said payment on a timely manner, Seller may make the payment on behalf of Buyers and give notice to Buyers of their default pursuant to Paragraph 18 of this Agreement. Failure of Buyers to tinlely cure said default, if possible, shall result in inIposition of remedies reserved to Seller pursuant to Paragraph 19 hereof 9. Prorating of Expenses. Expenses for goods and services such as utilities, sewer, water, delivered prior to Closing shall be paid by Seller and expenses for goods or services delivered after closing shall be paid by Buyer. Proration of same shall occur at the Closing as set forth in Article 10 of the Asset Purchase Agreement attached hereto as Exhibit "B". 1 O. Damage and Condemnation. Damage to or destruction of all or any part of the Premises by fire or any other cause of taking ofall or a portion of the Premises by condemnation shall not terminate this Agreement or cause any abatement or reduction in the payments to be made by 6 ~ . -'. ,'.1 .~ - ~". --- '~-"' :':~ ,; - -:>' T ~'."~'-_ "-ill'i~~ ! . G , , ., , ". Buyers or otherwise affect the respective obligations of Seller and Buyers. 11. Proceeds of Insurance or Condemnation. The proceeds of any condemnation proceeding or proceeds of any insurance attributable to any loss or damage to the Premises shall be applied to the purchase price of the Premises damaged or condemned. 12. Improvements. Maintenance. Repairs and Alterations. Buyers agree to maintain the Premises in good repair, order and condition (reasonable wear and tear excepted whether structural or otherwise) and shall pay all other costs and expenses arising out of the occupancy and use of the Premises, but not limited to all public utility charges and utility connection charges. Buyers shall comply with all housing code standards, fire safety or other governmental requirements now in effect or hereafter enacted that involve the subject premises. Buyers will not undertake or pennit any demolition or structural alteration or addition or improvement to the Premises without written consent of Seller, which consent shall not be unreasonably withheld. All alterations or additions to the Premises undertaken by Buyers shall become part of the Premises. Buyers shall not remove or permit the removal from the Premises of any building or other improvement located thereon without the written consent of Seller in writing nor shall Buyers commit any waste on the Premises or any building or any improvement thereon. Buyers shall indemnifY and hold Seller and the Premises of Seller, including Seller's interest in the premises, free 7 __.Ill ""~-~ :.- " ~:_ u:__ '1Ie:__ ': --. -~: "~~__ ., .'_,0"-:-' ~~ .',____'::..:_"':-':'-'c~.- , -~':'~:l!J.~:~ - ~-, "i1 ~'>-"'- ~ l e, . , , , . and hannless from liability from any and all mechanics' liens or other expenses or damages resulting from any renovations, alteration, buildings, repairs or other work placed on the premises by Buyer. Buyer shall make no material alterations to premises in excess of Five Hundred ($500.00) Dollars without the express written permission of the Seller. 13. Property. Buyers agree and warrant that they will keep the entire Premises and its contents insured against loss or damage by fire with extended coverage. The aforesaid insurance shall be in an amount of at least 100% of the replacement value, but not less than Four Hundred Twenty- five Thousand ($425,000.00) Dollars. All such policies or any additional fire insurance carried by Buyers on the Premises shall name Seller as additional named insured. Buyers shall provide to Seller proof of coverage on an annual basis. 14. Liability Insurance. Buyers shall provide comprehensive general liability insurance with minimum limits of One Million ($1,000,000.00) dollars. All such policies carried by Buyers shall name Seller as additional named insured. Buyers shall provide to Seller proof of coverage on an annual basis. 15. Indemnification of Seller and Waiver of Claims. Buyers covenant and agree to protect, exonerate, defend and indemnifY and save Seller hannless from and against any and all claims of liability which on or after the date of Closing may arise out of Seller's ownership of the Premises thereof and from and against any and all loss, damage, cost or expense or liability based upon personal injury, debt, loss or damage to property suffered or incurred by any person, firm or 8 ._.L:_... --' 5!" -""J' , .. ~ '~i . _~._ _ -~-Jl .L '-CJ -,~:,-_-:,,~;, JL _- _ _"': : ,--~~" j~~:~_,_ ! j; . " " " , . , corporation (including the parties hereto) and arising out of or attributable to the presence, condition, use, operation, or maintenance of the Premises except when due to the willful misconduct of the Seller. Seller shall give written notice to Buyers of any claims asserted against Seller within ten (10) days time after such claim becomes known to Seller. If such claim is otherwise made known to Buyers, then Seller shall be under no duty to advise Buyers of said claim. In any action or proceeding except for the willful misconduct of Seller, brought against Seller by reason of any claim, Buyers, upon notice from Seller, covenant and agree to resist or defend any such action or proceeding and to provide legal counsel, at Buyers' cost, for defense of any such claim. Seller agrees to cooperate and assist in the defense of any such action or proceeding if reasonably requested to do so by Buyers, at Buyers' expense. Buyers further agree to indemnifY and hold Seller harmless from any and all costs (including attorney fees and costs) associated with defense of any claim or cause of action including all costs and expenses, including attorney fees, for enforcement of this indemnification. 16. Inspection. Buyers will at all times provide Seller with reasonable access to the Premises for the purpose of inspection or view of the Premises. 17. Recording. A Memorandum of Sale can be recorded by either party. 18. Events of Default. Each of the following events is hereby defined as and is declared to be constituted as an event of default: (a) Failure by the Buyers to make the payments required to be made hereunder as part of 9 --""- '. ',- - ,_.' "-'~':_ .'., _'~: d' ,"-,'",.0;: ;.'';:'"<'-1. --'Ii L'~< , ~ , I " , . the purchase price within thirty (30) days after the same is due; or (b) Failure by the Buyers to observe and perfonn any other covenant or condition or agreement on their part to be observed or perfonned under this Installment Sales Agreement for a period of thirty (30) days after written notice specifying such failure and requesting that it be remedied, given to the Buyers by the Seller or her agent; or ( c) If any of the Buyers shall file a voluntary petition in bankruptcy or make an assignment for the benefit of creditors or failure by the Buyers to contest any execution, garnishment or attachment as will impair its ability to cany out their obligation under this Agreement, or the commission by the Buyers as a bankrupt, or the entry by the Buyers into an agreement or composition with their creditors; or the approval of a Court of competent jurisdiction of a petition applicable to the Buyers in any proceeding for a consolidation of creditors under the provision of the general Bankruptcy Act, as amended, or under any similar act which may hereafter be enacted which is not dismissed within sixty (60) days. (d) Having occur any act or omission by Buyers which is deemed to be a default pursuant to Article 5 of the Asset Purchase Agreement attached hereto as Exhibit "B". 19. Remedies on Default. Whenever any event of default referred to herein shall have happened and be existing, anyone or more of the following remedial steps may be taken: 10 . , " ~ rh~ J_. I, " _~. c.,- ""-'''-"lS,_ ' '"",_. ."-,,,,;'__:C';"'llZ...,',;;, " . ~ ~~.l . ,-- ,~' ~,- ~ . ~ . . (a) Seller may perform for the account of Buyers any covenant or obligation in the performance of which Buyers are in default, in which event, Buyers shall immediately pay to Seller all amounts paid by Seller, together with reasonable counsel fees, as well as with interest at the rate of ten (10%) percent per annum from the date of payment by Seller. (b) Seller may declare all sums which Buyers are obligated to pay to Seller pursuant to this Agreement, together with interest accrued thereon, immediately due and payable in full. IN SUCH CASE OF DEFAULT, BUYERS HEREBY AUTHORIZE AND EMPOWER ANY ATTORNEY OF ANY COURT OF RECORD IN THE COMMONWEALTH OF PENNSYL V ANlA OR ELSEWHERE TO APPEAR FOR BUYERS AND CONFESS A JUDGMENT FOR THE ENTIRE PRINCIPAL SUM AND INTEREST REMAINING UNPAID THEREON, WITH TEN (10%) PERCENT ATTORNEY'S COMMISSION OR FEES, HEREBY WAIVING THE RIGHT AND EXEMPTION AND INQUISITION, SO FAR AS THE PREMISES HEREIN DESCRIBED, AND ANY PROPERTY ORBUlLDING THEREON MAY BE CONCERNED. Buyers hereby irrevocably authorize and empower any attorney of any Court of record of Pennsylvania or elsewhere to appear for and confess judgment against Buyers for all amounts for which Buyers may be or become liable to Seller or her assignee under this Agreement, as evidenced by an affidavit signed by an agent of 11 , -,"-",~ "~~~:'::~ .'''~_l~__~'h'' , b. <ill. : WL..: .. ", .' . . I . . . , ", . . Seller or of assignee setting forth the amounts then due plus ten (10%) percent thereot; as an attorney's fee, with costs of suit and release of errors. Such authority shall not be exhausted by anyone exercise thereof but judgment may be confessed as aforesaid from tinle to time as often as there is a default hereunder. (c) Seller may tenninate this Agreement and resell the Premises at a private or public sale and Seller will apply the monies collected under such resale, to any amounts outstanding hereunder. Buyers shall remain liable for any deficiency after the application of the proceeds. If such proceeds are in excess of the amount required to satisfY the total due from Buyers to Seller under the terms of this Agreement, then the proceeds shall be used first to reimburse Seller the costs of sale and collection, including counsel fees often (10%) percent. Any remainder after said reimbursement shall then be tendered to Buyer. (d) Seller may declare this Agreement to be null and void and enter into possession of the Premises and retain all sums paid hereunder to the date of default as liquidated damages. (e) Seller may proceed by action of ejectment on this Agreement after default for recovery of said premises; in such case, BUYERS HEREBY AUTHORIZE AND EMPOWER ANY ATTORNEY OF ANY COURT OF RECORD IN THE COMMONWEALTH OF PENNSYLVANIA, OR ELSEWHERE, TO APPEAR 1 2 - -~ , ,- -,"..~ ~ -,,- ;,1 ,~ _ '_' _ ",,~" ".c- ,- ~-,:.w.;"~,"" --"",",< lfllM& ~~"- i . . . r', . , , ,-, " . .. FOR BUYERS AND CONFESS JUDGMENT OF EJECTMENT, AND AUTHORIZE THE lMl\IlEDIATE ISSUING OF A WRIT OF POSSESSION AND EXECUTION (WITHOUT ASKING LEAVE OF COURT) FOR THE COSTS AND TEN (10%) PERCENT ATTORNEY'S COMMISSION OR FEES, WAIVING ALL STAY AND EXEMPTION LAWS. The Buyers hereby waive and release all errors, defects and imperfections whatsoever of a procedural nature in the entering of any judgment or any process or proceedings arising out of this Agreement. Buyers also waive the benefit of any laws which now or hereafter might authorize the stay of any execution to be issued or any judgment recovered hereunder or the exemption of any property from levy or sale thereunder. (t) The Buyers agree to execute a quitclaim deed with the same to be held by the law firm of Barbara Sumple-Sullivan ("Escrow Agent"), and to be delivered to Seller upon default by Buyers of the obligations of this Agreement which have not been cured within the time limitations specified herein. Seller is authorize to record said quitclaim deed in the event of default to ensure no record or claim of title shall exist. (g) Take any and all other actions available to Seller at law or equity. 20. Cumulative Rights. No right or remedy herein conferred upon or reserved to Seller is intended to be exclusive of any other right or remedy herein or by law provided, but each shall be 1 3 ." ~ ~ 1-- -j ~-, " ~ . .~~ - ~ ,~ .. 0. -~~~-'~ --'--", -. '''i'''i.i!i '~"'f'",:. . . ~ Ie , .' . '. < .. cumulative and in addition to every other right or remedy herein given or now or hereafter existing at law or in equity or by statute, and may be pursued singly, successively or together at the sole discretion of Seller and may be exercised as often as the occasion therefor shall occur. 21. Realty Transfer Tax. Any realty transfer tax or taxes imposed upon the transfer of the real estate shall be divided equally between the Buyers and Seller at Final settlement as set forth herein in paragraph 23. 22. Seller's Warranty. Seller warrants that no notice of any governmental authority has been issued or served upon the subject property or any occupancy thereof or upon the Seller or agents of Seller prior to the signing of this Agreement calling attention to any violation of any building, fire, safety or other ordinance or requirement or calling attention to the need of any curbing, recurbing, paving, repaving or other construction or improvement on or about the subj ect premises or removal of any nuisance. There are no lawsuits pending or anticipated against Seller that involve the subject real estate. No municipal or other governmental improvements affecting the subject premises are, as of the date of this Agreement, in the course of construction or installation and to the best of the knowledge of Seller, no such improvements have been ordered to be made. 23. Environmental Warranty. No hazardous waste, hazardous or toxic materials or wastes or products regulated by any law or ordinance have been stored, treated at or disposed of by Seller on the real property, and, to the best of Seller's knowledge, have never been stored at, treated, or disposed of on the real property by Seller or by any other individual or entity. No asbestos or 14 ~ ! ' '-'l.. .,,_0 c>- . . . . c,j. ~. iLL' lJl-- <!fi;{;j-&"2i;,.. , " ' . , " I l). . . .. . asbestos products or materials or polychlorinated biphenyls or urea fonnaldehyde insulation have been stored at or disposed of on the real property. Neither the property, nor the use or operation thereof by Seller, or any tenant of the property, (I) violates, or is alleged by any person or entity to violate, or is not in compliance, or is alleged by any person or entity not to be in compliance, with any land use, environmental, hazardous material, and/or waste handling, storage, treatment, disposal or discharge laws or other laws, building codes, zoning or other ordinances, rules or regulations, fire insurance regulations, state labor department regulations, or covenants, conditions and restrictions whether state, federal, local or private; and (ii) there has not occurred, nor has any person or entity alleged that there has occurred, upon the property, nor any parcel, any spillage, leakage, discharge or release into the air, soil or ground water of any hazardous materials or regulated waste. 24. Final Settlement. It is agreed by and among the parties hereto that final settlement shall be held on the eighty-fifth (85th) month anniversary of Buyers' execution of this Agreement, or earlier, if Buyers exercise their right of prepayment, subject to the extensions permitted under paragraphs set forth above. TIME SHALL BE OF THE ESSENCE. Seller agrees that, at the time offinal settlement, Seller will furnish Buyers, upon payment of the principal and interest and balance then due and owing, a special warranty deed conveying good and marketable title to the premises to existing easements and restrictions of record, which deed has been executed by Seller prior to or contemporaneously with the execution of this Agreement, and which deed will be held in escrow by Barbara Sumple-Sullivan, Esquire, of New Cumberland, Pennsylvania. 25. Buyers' Option to Take Title. In the event that Seller is unable to give a good and 1 5 " -, -- 0'-.-;;" n_'.;_, "" " ,'" ~',J " ~lll':m\ f.I "... I ~ . , " .. III; ~, marketable title subject to the previous conditions of title referred to hereinabove, Buyers shall have the option of taking such title as Seller is able to give, with an abatement of price, equal to the costs of correcting the title defect. 26. Litigation. Should any litigation be commenced between the parties hereto concerning said property, this Agreement, or the rights and duties of either in relation thereto, the party prevailing in such litigation shall be entitled, in addition to such other relief as may be granted, to a reasonable sum as and for their attorneys' fees in such litigation which may be determined by the Court in such litigation or in a separate action brought for that purpose. 27. Entire Agreement. This is the entire Agreement by and between the parties hereto and this Agreement shall be binding on and inure to the benefit of the successors, heirs, personal representatives and assigns of the parties hereto. Nothing in this paragraph shall be construed as a consent by Seller to any assignment of this Agreement. 28. Waiver. The waiver of any breach of this Agreement by either party shall not constitute a continuing waiver or a waiver of any subsequent breach, either the same or another provision of this Agreement. 29. Modification. No modification ofthis Agreement shall be binding upon the parties hereto unless the same shall be in writing and duly executed by the Buyers and the Seller. 16 "'-' ~....u..._ " _ _ ,,. ,-~_, .d:.l ..-~ .-- >-><", """"j:,- '~,-)" "~ '''''-'''--!i"'~': ~ ~,\ I ~ , , I' j. . . " . 30. No Existing Leases. Seller warrants that no portion of the premises are subject to any existing rental or lease agreements. IN WITNESS WHEREOF, the parties hereto, intending to be legally bound, hereunto set their hands and seals the day and year first above written. WlTNFSSL, ~. 'u<<~ ern L. Wilson, Seller (SEAL) ) (SEAL) ) Karen L. Dunkle, Purchaser 17 . \ '-,,"' ," -'/,,' - r--- ill, " l' ,,' .' . . ,- EXHIBIT "A" J I ~ I . <"'''_;''''c;'__'<,;'; . . , -~-'''f}J-'ik_ r } '_M ~ ;::' ~- .. :~-.,:.J. _~~' "'''_ -.~ -"-''""-'- ,-'-" -a;;' "II I) . Jllade the ~7H- , in the yea-r f!ptv.<- day of ~V'ineteen hundred and seventy-nine (1979) ~"'hne.t%t FERN.L. PARENTI, a/k/a FERN L. WnSON, single person, of ~' Cumberland, Cumberland County, Pennsylvania, GRANTOR, A N D FERN L. WnSON, single person, of New Cumberland, Cumberland County, Pennsylvania. GRANTEE. ~ihuJlfJlfe~, That in consideration of in hand paid, the receipt tuhereof is hereby acknowledged, th.e said tr"ap.tor do es hereby ~rcnt and convey to the said ~ranteeJ her heirs and assi~ns, ALL TBA! CERTAIN lot or tract of land situate in the. Borough of New Cumberland, Cumberland County, Pennsylvania, more particularly bounded and described in accordance with a survey by Michael C. DiAngelo, Registered Surveyor, dated October 12, 1976, as follows) to wit: BEGINNING at a point at the northeast corner of Harket Street and Fourth Street, said point being the point of intersection of the. external walls of buildings Nos. 401 and 403; thence along the eastern line of Market Street, North 50 degrees 00 minutes West fifty (50) feet to a nail, being the southwest corner of Lot No. 73; thence along the same North 40 degrees 00 minutes East one hundred five (105) feet to an iron pin; thence along lands now or formerly of George E. Pentz and through Lot No. 72, South SO degrees 00 minutes East fifcy (50) feet to an iron pin on the northern line of Fourth Street and on the extensiou line of the southern external wall of buildings Nos. 401 and 403j thence along said last mentioned line South 40 degrees 00 minutes West one hundred five (105) feet to the Place of BEGINNING. BEING the greater part of Lot No. 72 on the General Plan of the Borough of New Cumberland, Pennsylvania. HAVING thereon erected a two-story brick building known as and numbered 401-403 Market Street. BEING THE SAME premises which themas A. Parenti and Fern L. Parenti, his wife, by deed dated March 27. 1978. and recorded in Deed Book "SII, Volume 27, Page 244. in the Office of the Recorder of Deeds in and for Cumberland County, Pennsylvania, granted and conveyed unto Fern L. Parenti. The said Thomas A. Parenti and Fern L. Parenti were divorced under date of October 12, 1978, by Decree of the Court of Common Pleas of Dauphin County, Pennsylvania. to No. 1744-$-1978. The said Fern L. Parenti on O~tober 20, 1978, elected to resume her maiden name of Fern L. Wilson. ' ~ .' ' ..::_._ ~:..,. ._ t:'_..._ T T.1:',~_ ".11 '-~' ,. .ok"), ~ f: nil" ." _c__ ",' . l1n ':mlihte55 ':l'!i1hne:liIf. ~ ~ ~)' and seal "_t., '--.~ :~ '; '. '""'" -0"' f~',;'- , '1 I" the day and year first abot'e written. said ~rantor ha S hereunto set her hand $'igu.ll, ,.s-...1.11 ..nll ~tli"trdl ~n 1~1! l1r~9nu~ DE ~g:.....td2'. -P.' \Z.wtr Ilfomm...."....lt~ of ~tnna1!j"..ni.. (l;ou,.l" ..f &--t~ . - On. thill, the ~ ~ day 01 ~ the IIndp.l'sitned officer, personally apppa1'pd a e } "'". 1979 ,be(ure me a Notary Public, .f FERN L. PAIlEIITI, a/k/a FERN L. WILSON .. ....:......i ,.t.;:.'.....:-. kn(Jw,~ to mp.(o,..9atisrfIC~t(),.ily pro,'en.) to be th,. pel'.'wn S whuse namo'! is "~~~iJi~..(f',~,,~ c' in.'ll'llment. and ddmowledted that she f!zecuted the .'fame 101' the pUl'P03e:t.~e're~':don.tci~..."':;.:.. " IS WITNESS WHEREOF, 1 have h.ereunto .tet m.y hand and official 1 _,eal. ~~.';~;:f'"-;" ~.-d.~~./.l'"\>~~' t.!'.~-. ..j ~tQ. ~..~ u.. '~ui\e!o. . "'J7 ~~.'. 'oi"'...~"'. .~.,.... " -r- ... ,-tll!!iZ '~n~;':. '-'. .,;,. I-<~::_,?t ' ~~~. - - ~on''''on"..",l1~ of 'iltnna1!I"""ti" o,;oun11! of On. thiN, the day uf the undel'sitned ufficer. pel'lwnally appeared } ....- 19 . b~fore me knvttJn tv 11!t'(o"lIt1till!cu,tu"ily prrJI'/'1/.) to 1)1' thp pP"sun wlwsf'. nnmp .Yltbscl'ibed tll the /iJithilt i/Mtrumenl, and uc-klwwlrdec'd that hi' rzprutpd th" ..ame fur thl' IJ/ll'pose therein {<rmtain,.d. l.'~ WIT.\-gSS WHt"REO "", I "aIle he1'euntu ,'lot my hand and seal. ~ ~erehi;! Oferlifi;! that the precise address of the gran.tee herein is 401 M~~~p~ ~t~P.P.t New Cumberland PA 17070 . I /' H' .... (. " --', ~ , - .- , , ~' 'ill) 4, << EXHIBIT .I~ "'-' . "B" ,. ,~ , ' ~ ,.~~ ;':f-"kL,:. 'IJ'H!iHiJI~,~~_j , , ;7 ~ - . .,; ,. ,'F: -,., ___c:,:, -,' ,--Ie..: I' ".,;' ,"".. ,'", ,,__, -' ~,;,,;, "-~,__"','_,'i,,; '-, 'n' , - ",~ - 1j: , j.. ',', \. . ( I ,I I' .. , (} ASSET PURCHASE AGREEMENT BY AND BETWEEN FERNROCK SNYDER, INC. AND McDUNK, INC. ,~ '-,' '. " , , << , . , . ~I I \ EXHIBIT "e" .t; .' . " ~-- -I":" ,;.-- 0'_ -;.\'" -.-;,-,,-"--<^ ,. " '"~ [ - ;~-- . -.~~ ;@ . .. ; i:;:: -_ ~.. , . . @9J7 b6 1999 . Page 1 ~ --.L-Io Wilson to McManuslDunkle Compound Period .......: Monthly Nominal Annual Rate ...: 5.250 % Effective Annual Rate .. : 5.378 % Periodic Rate .............. : 0.4375 % Daily Rate .................. : 0.01438 % CASH FLOW DATA Event Start Date Amount Number Period End Date 1 Loan 06221999 265,000.00 1 2 Payment 0701 1999 1,785.69 84 Monthly 06 01 2006 3 Payment 07 01 2006 201,290.48 1 AMORTIZATION SCHEDULE - Normal Amortization Date Payment Interest Principal Balance Loan 06 22 1999 265,000.00 1 07011999 1,785.69 343.05 1,442.64 263,557.36 2 0801 1999 1,785.69 1,153.06 632.63 262,924.73 3 0901 1999 1,785.69 1,150.30 635.39 262,289.34 4 10011999 1,785.69 1,147.52 638.17 261,651.17 5 11 01 1999 1,785.69 1,144.72 640.97 261,010.20 6 12011999 1,785.69 1,141.92 643.77 260,366.43 1999 Totals 10,714.14 6,080.57 4,633.57 7 01 01 2000 1,785.69 1,139.10 646.59 259,719.84 8 02 01 2000 1,785.69 1,136.27 649.42 259,070.42 9 03 01 2000 1,785.69 1,133.43 652.26 258,418.16 10 0401 2000 1,785.69 1,130.58 655.11 257,763.05 11 05 01 2000 1,785.69 1,127.71 657.98 257,105.07 12 0601 2000 1,785.69 1,124.83 660.86 256,444.21 13 0701 2000 1,785.69 1,121.94 663.75 255,780.46 14 0801 2000 1,785.69 1,119.04 666.65 255,113.81 15 0901 2000 1,785.69 1,116.12 669.57 254,444.24 16 1001 2000 1,785.69 1,113.19 672.50 253,771.74 17 11 01 2000 1,785.69 1,110.25 675.44 253,096.30 18 1201 2000 1,785.69 1 ,107.30 678.39 252,417 .91 2000 Totals 21,428.28 13,479.76 7,948.52 19 01 01 2001 1,785.69 1,104.33 681.36 251,736.55 20 02 01 2001 1,785.69 1,101.35 684.34 251,052.21 21 0301 2001 1,785.69 1,098.35 687.34 250,364.87 22 04 01 2001 1,785.69 1,095.35 690.34 249,674.53 23 05 01 2001 1,785.69 1,092.33 693.36 248,981.17 24 06 01 2001 1,785.69 1,089.29 696.40 248,284.77 25 07 01 2001 1,785.69 1,086.25 699.44 247,585.33 26 08 01 2001 1,785.69 1,083.19 702.50 246,882.83 , '. ~lil_ _._;: _ J. ,.. . .'~ . 1;,," '", . , " . -d',.- _ -~ ., '~:~ ~~ '"- ".,:,- ',- ~. "-, ~ ':J~.' '-;,.;,.",,", " .~- .",--~-- .- i ',~-;- " . . I Ii ~ , . @ (3)' ' ,-..;,:;,-' Dv7 061999 . "-'.-,1 .' , . . , ,-i:>" Paj;Je 2 Wilson to McManus/Dunkle Date Payment Interest Principal Balance 27 09 01 2001 1,785.69 1,080.11 705.58 246,177.25 28 10012001 1,785.69 1,077.03 708.66 245,468.59 29 11 01 2001 1,785,69 1,073.93 711.76 244,756.83 30 1201 2001 1,785.69 1,070.81 714.88 244,041.95 2001 Totals 21,428.28 13,052.32 8,375.96 31 01 01 2002 1,785.69 1,067.68 718.01 243,323.94 32 02 01 2002 1,785.69 1,064.54 721.15 242,602.79 33 03 01 2002 1,785.69 1,061.39 724.30 241,878.49 34 04 01 2002 1,785,69 1,058.22 727.47 241,151.02 35 05 01 2002 1,785.69 1,055.04 730.65 240,420.37 36 06 01 2002 1,785.69 1,051.84 733.85 239,686.52 37 07 01 2002 1,785.69 1,048.63 737.06 238,949.46 38 08 01 2002 1,785.69 1,045.40 740.29 238,209.17 39 09 01 2002 1,785.69 1,042.17 743.52 237,465.65 40 1001 2002 1,785.69 1,038.91 746.78 236,718.87 41 11 01 2002 1,785.69 1,035.65 750.04 235,968.83 42 1201 2002 1,785.69 1,032.36 753.33 235,215.50 2002 Totals 21 ,428.28 12,601.83 8,826.45 43 01 01 2003 1,785.69 1,029.07 756.62 234,458.88 44 02 01 2003 1,785.69 1,025.76 759.93 233,698.95 45 03 01 2003 1,785.69 1,022.43 763.26 232,935.69 46 04 01 2003 1,785.69 1,019.09 766.60 232,169.09 47 05 01 2003 1,785.69 1,015.74 769.95 231,399.14 48 06 01 2003 1,785.69 1,012.37 773.32 230,625.82 49 07 01 2003 1,785.69 1,008.99 776.70 229,849.12 50 08 01 2003 1,785.69 1,005.59 780.10 229,069.02 51 0901 2003 1,785.69 1 ,002.18 783.51 228,285.51 52 1001 2003 1,785.69 998.75 786.94 227,498.57 53 11 01 2003 1,785.69 995.31 790.38 226,708.19 54 1201 2003 1,785.69 991.85 793.84 225,914.35 2003 Totals 21,428.28 12,127.13 9,301.15 55 01 01 2004 1,785.69 988.38 797.31 225,117.04 56 02 01 2004 1,785.69 984.89 800.80 224,316.24 57 03 01 2004 1,785.69 981.38 804.31 223,511.93 58 04 01 2004 1,785.69 977.86 807.83 222,704.10 59 05 01 2004 1,785.69 974.33 811.36 221,892.74 60 06 01 2004 1,785.69 970.78 814.91 221,077.83 61 0701 2004 1,785.69 967.22 818.47 220,259.36 62 08 01 2004 1,785.69 963.63 822.06 219,437.30 63 09 01 2004 1,785.69 960.04 825.65 218,611.65 64 1001 2004 1,785.69 956.43 829.26 217,782.39 65 11 01 2004 1,785.69 952.80 832.89 216,949.50 66 1201 2004 1,785.69 949.15 836.54 216,112.96 2004 Totals 21,428.28 11,626,89 9,801.39 ..~- . ~. .'.i_ .- ,-.' --,~ ,""~ -- ";., ".- - .iii~_-i . ",.... .. :-- ".,I(' ~ '". ~ .' R\..... \:;;<9 ,'~ . ~D7 ~6 199~ P~ge 4 Wilson to McManus/Dunkle Last interest amount decreased by 0.01 due to rounding. :: , ,,,~" ~, ,I" -'c! 'JiiiJ' '.lJ.,{ij '~'.'" l_ , '<_',-_j 0,':' -::"~,A'. ,'- > EXHIBIT IIBII Residential Value ... ( ( . % complete, Index: .%) Out Buildings (screen 4) ...... Other Residentials (no. ).. Commercial Bldgs... (no. ).. Total Building Value...... ...... 252740 Current Prey FMV Cost Fair Market Land ...... 28090 28090 28090 Improvrnents 252740 292880 252740 Total..... 280830 320970 280830 Assessed... 280830 320970 280830 SALES VALIDATION Steb: Ratio: Analysis: 01 Ratio: Valid: - FAMILY SALE ~ARCEL: 25-24-0813-046 .-TYPE: CC ~unicipality : 25 -~~CUMBERLAND 1ST WD . Jwner's Name: WILSON, FERN L Year Group Sty Grade Int. Land NBHD LFI 25 FMVL/Ac: Acres Code: Deeded Acres: FMV/Ac: ~ .12 Schl ;,!",g Value Override: Nbhd: NE~~ERLAND 1ST NO RES (See Text Screen) LAF(code) DwlTyp Ext Walls . ( .) Special-Comments REVIEW: Part Interest: Ag Use 1974 FMV 4400 47280 51680 12920 .of Fctr Land Impact 10 % 5.43 47% Sales Date: Sell Price: Adjusted SP: 04/12/1979 1 _ '" -, _U <,; -.-. -, J_ ,;.,;~,;; "o',-:i_',\i'" 'aJt '", EXHIBIT "C" ~ ,. ,- .,;, .,,,. r' ~"~/ . .l,;~~;;;~~f0Y'. , ~-J..t _",~~,,~;;i~j!~"/)! ;"'",",",- ""\V r .' '.. ~ "-.r _ l .,~ [ . _ _ -__ "- _" l ~-, --; 'r" 1'~' ~~'f;. (~ ' ~ r ,-, -, '" .", ASSET PURCHASE AGREEMENT BY AND BETWEEN FERNROCK SNYDER, INC. AND McDUNK, INe. -.'.'.-- f; ." Article iIi-"~ ',- ,- " -t ',~:' -ii, . _'" . 'c_-"'- ~"-' "'-'" '.- '~", ' . '"''''.'''''1''''''-' , "'. J ~. ~ ~ /<;- , ,. TABLE OF CONTENTS 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 Page No. Assets to be Conveyed . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 Purchase Price . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 Security ........................... 4 ......................... .'.. Condition Precedent. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7 Events of Default . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8 RemediesonDefault ............................................ 11 Representations and Warranties of Seller .............................12 Covenants .................................................... 15 Representations and Warranties of Buyers ............................ 16 ClosingDateandPlace ..........................................18 Closing Documents ............................................. 18 Costs and Expenses ... . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20 Risk of Loss . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21 Indemnification ................................................. 22 Covenant Not to Compete . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -. . . . . 23 Consulting Agreement ...........................................23 Notices ...................................................... 23 Benefit and Assignment ..........................................24 Entire Agreement ...............................................24 Choice of Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25 Covenant of Further Assurances. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25 Guarantee & Surety Agreement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26 By McManusIDunkle = '"-'.'~,-,,"" .. ~ '. '-~~j;;;; . . " " , .- ,. 0' ._ 0," ,~- n<' ~. , - , .;;. _. ,- , -- ,-- - ~ J,J.;-,,- . ~- ., li.i!l1!1il'ilii<>> .,.1 ,} , ~ , ." " " . ASSET PURCHASE AGREEMENT THIS AGREEMENT, executed this 1::;/- day of Ppr/ / ' 1999, by and between FERNROCK-SNYDER, INC., a Pennsylvania corporation (hereinafter referred to as "Seller") and McDUNK, INC., a Pennsylvania corporation (hereinafter referred to as "Buyer"), is for the sale and purchase of assets set forth herein used and useful in the operation of bar/restaurantlcatering ousiness subject to the prior approval of the Pennsylvania Liquor Control Board (hereinafter "PLCB") and the other conditions contained herein. NOW, THEREFORE, in consideration of the mutual covenants of this Agreement and in reliance on its representation and warranties, the parties, intending to be legally bound, agree as follows: ARTICLE 1 ASSETS TO BE CONVEYED On the Closing Date (defined herein), subject to the representations, warranties, conditions and agreements contained herein, Seller shall sell, assign, delivery, transfer and convey to Buyer, and Buyer shall purchase, the following assets (hereinafter "Purchased Assets"), free and clear of all liens, charges, encumbrances and security interests of any nature whatsoever; 1.1 License. P A Liquor Control Board Distribution License No. R-15960 with a Sunday ''-, ~ __.1' .-._,__ ~___',~ _ _ _.' ,,' ._.,."~ ,.I" """ 'b", . -': ':":-"'."-' .'". ,.it ~ . .:! '-"-.-"; --..t":" '--.'C'''.'ID1i#,;, ",,' , . , . .. . ,. . " " . Sales Permit and Amusement Permit. The sum of SEVENTY rnOUSAND ($70,000.00) DOLLARS is allocated herein for this asset. 1.2 Physical Assets. All equipment, furniture, fixtures, the vehicle, inventory, except as set forth in 1.3 below, and other tangible assets owned by Seller and used or useful in the operation of the bar/restaurant business as described in Exhibit "A" ("Tangible Purchased Assets") herein, together with any replacements or additions hereto and less such items as may be consumed or deleted in the ordinary course of business prior to the Closing Date. All items are sold in an "as is" condition. The sum ofFQRTY-FIVE rnOUSAND ($45,000.00) DOLLARS is allocated herein for these assets. 1.3 Liquor and Alcoholic Beverage Inventory. Seller's inventory on hand of liquor and alcohol beverages is not included for allocation of the purchase price and said value is to be established pursuant to 2.3 hereof 1. 4 l!Jtangible Assets and Business Data. All tangible assets utilized in the operation of the business, including the fictitious name "Pete's Cafe" and the business' good will. All Seller's data pertaining to the operation of the bar/restaurant/catering business, all equipment warranties and data, and customer lists. The sum of FIFTEEN rnOUSAND ($15,000.00) DOLLARS is allocated herein for these assets. 2 . , . ." . ,-' c_ , -'~ ""'W~.,"--: '1' .)-, .. I r ARTICLE 2 PURCHASE PRICE 2.1 Purchase Price. Subject to the adjustments which may be required by Article 2.2( d) and 2.3 herein, the Purchase Price for the purchased assets shall be ONE HUNDRED THIRTY ($130,000.00) DOLLARS. 2.2 Payment of Purchase Price. The purchase price shall be paid as follows: (a) F.IVE THOUSAND ($5,000.00) DOLLARS to Barbara Sumple-SulJivan, Esquire, attorney for Seller at signing, to be held in escrow until Closing. Said FIVE THOUSAND ($5,000.00) DOLLARS shall be paid to Seller, FernRock-Snyder, Inc. at Closing. (b) TEN THOUSAND ($10,000.00) DOLLARS shall be paid to Seller at Closing. (c) The remaining ONE HUNDRED FIFTEEN THOUSAND ($115,000.00) DOLLARS to be paid in eighty-four (84) equal monthly installments. Subject to adjustments as set forth in paragraph 2.2( d) hereof, interest shall be at the prevailing applicable federal rate (mid term) at time of Closing but no less than 5.25% amortized over a twenty (20) year period. A balloon payment shall be due for the remaining balance on the first day of the eighty-fifth (85th) month following Closing: Specifically, assuming a 5.25% rate: (1) Monthly payments of SEVEN HUNDRED SEVENTY-FOUR and 92/1 00 3 . , . .~ '. ~,:- ~- ~~~'- ~.~.: :~-",',:"- .". ""';--""":.';"""--" "" ~':~ ,~:' ~:~', - :- .,-' '~-'~L '<"-_~ C. ',;..en.': .-. ,. -. '-l~_. , 'I t) , . , , ' , r ($774.92) DOLLARS for eighty-four (84) payments with the first payment being due on the first day of the first calendar month following Closing and on every first day of the next eighty-four (84) months. If any payment is not made by the tenth (10th) day of the month, Buyer shall pay an additional five (5%) percent of the monthly payment due as penalty. Said late charge shall be paid by Buyer to Seller with the monthly installment due and owing. The full balance of EIGHTY-SEVEN THOUSAND EIGHT HUNDRED SIXTY-THREE and 86/100 ($87,863.86) DOLLARS shall be due on ~e first day ofthe eighty-fifth (85th) month following closing. A copy of the proposed Amortization Schedule is attached as Exhibit "B" (d) Buyer shall have the right to prepay the purchase price. However, said right to prepay is specifically contingent upon Buyer simultaneously satisfying all sums due and payable pursuant to the Installment Sale Agreement dated even date herewith between Buyer's principals, McManus, Dunkle, and Fern L. Wilson. 2.3 Purchase ofllllventory. In addition to the above referenced purchase price, Buyer shall pay to the Seller, FernRock-Snyder, Inc., an additional sum representing the actual value of the alcoholic beverage and liquor inventory on hand at date of Closing, as approved by Buyer The inventory shall be valued at cost and determined on the date of Closing by mutual accounting between the parties. ARTICLE 3 SECURITY 3.1 Financing Statements and Encumbrances. To secure Buyer's obligation hereunder, 4 .:if' . , '} ,,' . I , , Buyer shall deliver to Seller Uniform Commercial Code financing statements to encumber all said accounts receivables, fixtures, the vehicle and equipment. Further, encumbrances shall be made on all motor vehicle title certificates at the Commonwealth of Pennsylvania Department of Motor Vehicles. Seller agrees to promptly release said liens upon Buyer's satisfaction of payments due and owing in accordance with Article 2.2 hereof. Seller agrees to cooperate with release of any of these security interests if new equipment or vehicles are sought to be purchased by Buyer provided Buyer will allow substitution of a similar interest on the substituted property and said substituted property has equal or greater equity value. 3.2 Stock Restrictions. In addition to the financing and encumbrances set forth in 3.1 above, Buyer shall agree to adopt a restrictive corporate bylaw which will provide that the PLCB Distribution license with Sunday and Amusement permit to be conveyed to Buyer pursuant to this Agreement shall be held by Buyer and not sold, transferred, encumbered or assigned as long as any sums are due and owing by Buyer pursuant to this Asset Purchase Agreement or any sums are due and owing pursuant to the Installment Sales Agreement between Wilson, McManus and Dunkle or the Non-Competition and Consulting Agreement executed of even date hereof. This corporate bylaw restriction shall not be amended, rescinded or repealed except with the express written consent of Fern L. Wilson, President of Seller. Seller and Fern L. Wilson, individually, shall have a lien on all issued and outstanding stock of Buyer which is issued and/or is outstanding at any time prior to a full payment of all sums due under this Agreement or the Installment Sales Agreement or Non-Competition and Consulting 5 '0 .,-i--' '__J .- h_H . ~ , " . -,- ,~d "__ '-: '>"i.1!\ltk. .' , .. . , ., '. . : , Agreement set forth above. All stock shall be held pursuant to a security agreement which shall be executed at Closing, which Agreement shall be drafted by counsel for Buyer and approved by counsel for Seller. Seller shall have the right to vote such shares only in the event of default by Buyer pursuant to this Agreement or in the event of any default pursuant to the Installment Sale Agreement and Non- Competition Agreement and Consulting Agreement executed of even date. 3.3 Pledge of Stock. Buyer shall pledge to Seller (including physical delivery of) all of their authorized and outstanding capital stock in a form satisfactory to Seller's attorney whereby Seller shall become the sole and unconditional owner of all of Buyer's capital stock in the event Buyer's uncured default hereunder as defined in Article 5. In order to assure compliance with the foregoing, Buyer has caused to be deposited with Seller's attorney, Barbara Sumple-Sullivan, Esquire, the certificates for the shares of stock required under paragraph 3.2 and 3.3 hereinabove. Said stock is to be delivered to Attorney Sumple- Sullivan at Closing and held in escrow pending satisfaction of the indebtedness. Buyer shall provide Seller with a true and accurate copy of its bylaws, certified by its secretary, indicating compliance with clause 3.2 above. Upon satisfaction of the payments of the respective obligation required in 3.2 of this Agreement, Seller agrees to cancel the pledge of stock required and return said stock certificate to Buyer. 6 '; ."__'-0 c' .'~ ~ . d "-'" - _"_'_d ; . ,-'^ "___)"" , <",.-.--;.. "-~"'..--' ,- '~iroi~" .. , ,J I" ,. . 3.4 .Judgment Note. Buyer together with Ira 1. McManus and Leslie J. McManus, his wife and James R. Dunkle and Karen L. Dunkle, his wife, jointly and individually, agree to make, execute and deliver to Seller at the time of Closing an executed judgment note supporting the unpaid obligation owing to Seller. 3.5 Assignment of Leases. Buyer agree to make, executed and delivery to Seller at the time of final Closing, an assignment of all leases and rental income from the property owned at 401- 403 Market Street, New Cumberland, P A, if any. ARTICLE 4 CONDITION PRECEDENT 4.1 PLCB Approval. Consummation of the purchase and sale provided herein is conditioned upon the PLCB having given its consent to the transfer of the license and permits to Buyer without any condition materially adverse to Buyer. If said transfer of license and permits are denied for any reason other than Buyer's failure to diligently and in good faith pursue the transfer, this Agreement shall be deemed canceled and the escrow deposit set forth in Article 2.2(a) hereunder shall be returned to Buyer, and the parties shall be under no further obligations to each other. 4.2 Filing of Application. The parties agree to proceed as expeditiously as practical to file or cause to be filed an application requesting PLCB approval to the transactions set forth herein. The parties agree that said application shall be filed with the PLCB on or before twenty (20) days of the date hereof and that it will be prosecuted in good faith and due diligence. The parties agree to use 7 ,; -.~-':.,--.;. "- ~. - '~' 1-. ~:J . .:",,_, " ~ - __<. " ;:. _ ."".-' " ,.,j'<;" :" -'l~~",b' " f,l. 1 , their best efforts to file additional infonnation or amendments requested by the PLCB. Each party will be solely responsible for the expenses incurred by it in the preparation, filing and prosecution of the application. Buyer shall pay all costs and fees due to the PLCB or required by Rules and Regulations of the PLCB. 4.3 Time for Approval - Termination. This Agreement may be terminated by Seller without liability, if, after sixty (60) days of the date of this Agreement the PLCB should fail to act upon the application to transfer the license and permit. If this Agreement is terminated pursuant to tbis Article, the Escrow Deposit set forth in Article 2.2(a) shall be returned to Buyer and the parties shall be under no further obligation to each other. 4.4 Purchase of Real Estate. Tbis Agreement is conditioned upon the satisfactory closing of the real estate transfer agreement between Fern L. Wilson and Ira J. McManus, Jr. and Leslie J. McManus, bis wife and James R. Dunkle and Karen L. Dunkle, bis wife. ARTICLE 5 EVENTS OF DEFAULT 5.1 Events of Default. The following shall be "Events of Default" under this Agreement and the term "Events of Default" or "Default" shall mean, wherever they are use in tbis Agreement, anyone or more of the following events: (a) A failure to perform or breach of any of the material warranties, 8 , .- , -'~ ~ . ,.I, \,1, '.:""-~.-. "' - "". '$10,;' ,--,' ...~ - - " .-,'cl - , ". " " , , I' I I , representations, covenants or obligations of the Seller or Buyer as set forth in this Agreement; (b) A failure on the part of Buyer to make any of the payments within thirty (30) days of the due date required to be made in tbis Agreement specifically including, but not limited to, those payments required under Article 2 hereof; (c) A failure on the part of the Seller or the Buyer to perform their respective obligations in Article 4; (d) A failure on the part of Buyer to keep and maintain the PLCB Restaurant License and Permits as issued by the PLCB valid and in good standing by failing to pay all fees and charges required to keep, maintain and renew said license and permits, and to keep and observe all laws, rules and regulations governing the use of the License. The following standard shall be utilized in determining Buyer's breach or default in failing to keep and observe all laws, rules and regulations: Any conduct by Buyer in the operation of said business which results or could result in citation or citations issued by the Pennsylvania Liquor Control Board wbich would justify a revocation of the license or permits in light of past rulings of said Board and court decisions as compared to minor suspensions; or, in the event of a sufficient number of citations wbich normally result in minor suspensions of the license or permits but because of the number and frequency of the citations, place the license in jeopardy of revocation in the event of an additional citation being issue. (e) The Seller or Buyer shall file a voluntary petition in bankruptcy or shall be adjudicated a bankrupt or insolvent or shall file any petition or answer seeking any 9 ..'" ~ '.- ,-J. ;"'_f',,"'_'__,';-,;:)'" in 1'[" '. , " " ~ " reorganization, arrangement, composition, readjustment, liquidation, dissolution or similar relief for itself under any present or future federal, state or other statute, law or regulation related to bankruptcy, insolvency or other relief for debtors; or if Seller or Buyer shall seek consent to or acquiescence in the appointment of any trustee, receiver or liquidator of the Seller or Buyer or shall may any general assignment for the benefit of creditors; (f) A petition shall be filed against Seller or Buyer seeking any relief under the kinds of laws and regulations related to bankruptcy, wbich petition shall not have been dismissed for an.aggregate of thirty (30) days or if any trustee, receiver or liquidator ofthe parties shall be appointed without consent or acquiescence of the respective party hereto and such appointment shall remain unvacated for an aggregate of thirty (30) days. Then, in the event anyone of the foregoing events occur, a default shall exist hereunder. 5.2 Waiver of Default. No delay or omission to exercise any right or power occurring upon any default shall impair any such right or power or shall be construed to be a waiver thereof, but any such right and power may be exercise from time to time and as often as may be deemed expedient. In the event any agreement, warrant, representation, covenant or obligation should be breached and thereafter waived by the other party, such waiver shall be limited to the particular breach so waived and shall not be deemed to waive any other breach hereunder. 1 0 .~ ~ " .: __:1._. ~ "~ _ _r ' : ,,_I '0 _ _. ~";' ~ : , ~: ,', w .:" ' - >;'j..,;,;,J-J-',;-,' "e ',"",' _ ._, .'. . . l,l. ~ < . , . ARTICLE 6 REMEDIES ON DEFAULT 6.1 Remedies on Default. Whenever any event of default referred to herein shall have happened and be existing, anyone or more of the following remedial steps may be taken: (a) Seller may perform for the account of Buyer any covenant or obligation in the performance of wbich Buyer are in default, in wbich event, Buyer shall immediately pay to Seller all amounts paid by Seller, together with reasonable counsel fees, as well as with ~terest at the rate of ten (10%) percent per annum from the date of payment by Seller. (b) Seller may declare all sums wbich Buyer are obligated to pay to Seller pursuant to this Agreement, together with interest accrued thereon, immediately due and payable in full. IN SUCH CASE OF DEFAULT, Buyer HEREBY AUTHORIZE AND EMPOWER ANY ATTORNEY OF ANY COURT OF RECORD IN THE COMMONWEALTIi OF PENNSYLVANIA OR ELSEWHERE TO APPEAR FOR Buyer AND CONFESS A JUDGMENT FOR THE ENTIRE PRINCIPAL SUM AND INTEREST REMAINING UNPAID THEREON, WITIi TEN (10%) PERCENT ATTORNEY'S COMMISSION OR FEES, HEREBY WAIVING THE RIGHI AND EXEMPTION AND INQUISITION, SO FAR AS THE PREMISES HEREIN DESCRIBED, AND ANY PROPERTY OR BUILDING THEREON MAY BE CONCERNED. 11 , - ,['-" -;,--. ",;,;..:- '~ --4 ' .-- ,,,,;-,-<,,~'T' r.-.i.,r~Iii!;_ '. , ~ ' , " (c) Seller may declare this Agreement to be null and void and exercise all remedies available by enforcement and execution upon the security created by Article 3 of this Agreement or any other remedies available at law. This shall include exercise of the stock pledge to allow it to continue operation of the business 6.2 Cumulative Rights. No right or remedy herein conferred upon or reserved to Seller is intended to be exclusive of any other right or remedy herein or by law provided, but each shall be cumulative and in addition to every other right or remedy herein given or now or hereafter existing at law or in equity or by statute, and may be pursued singly, successively or together at the sole discretion of Seller and may be exercised as often as the occasion therefor shall occur. ARTICLE 7 REPRESENTATIONS AND WARRANTIES OF SELLER Seller makes the following representations and warranties, all of wbich have been relied upon by Buyer in entering into tbis Agreement and all of wbich shall be true and correct on the Closing Date as if then made: 7.1 Owner of Assets. Seller FernRock-Snyder, Inc. warrants that it is the owner of assets to be sold pursuant to this Agreement and that no other third party has any interest in said assets. 7.2 COqlorate Standing. Seller FernRock-Snyder, Inc., is a corporation duly organized, validly existing, and in good standing under the laws of the Commonwealth of Pennsylvania. Seller 12 .., " " '-'~ ~. ~ ^'. , - .. - tB._~)jijiL;s/lff-: , . . '.1, ., " , . , has full corporate authority to own its properties, to carry on the business it presently conducts, and to enter into and consummate the transactions contemplated by tbis Agreement. The execution and delivery of this Agreement have been duly authorized by the Board of Directors and Shareholders of Seller, by their actions at duly called and convened meetings in accordance with Seller's bylaws, and applicable corporation bylaws, and certified copies of such resolutions shall have been delivered to Buyer at Closing. The resolutions of the Board of Directors and Shareholders of Seller specifically authorize Seller to sell all of the assets set forth in Article 1 above. This Agreement is valid and binding upon Seller in accordance with its terms. 7.3 PLCB License Seller FernRock-Snyder, Inc. is the holder of valid Restaurant License No. R-15960 with a Sunday Sales Permit and Amusement Permit issued by the PLCB. There are no applications, proceedings, or material complaints pending at the PLCB, nor to Seller's knowledge, threatened, relating to the license or permit which might result in the failure to renew, revocation of, modification of, or forfeiture against the license, or wbich would delay or jeopardize PLCB approval of the assignment application to be filed in accordance with Article 4. 7.4 Physical Assets. Seller is selling to Buyer all of the tangible assets of Seller used and useful in the operation of the bar/restaurant/catering business as listed on Exhibit "A". Except as stated herein, Seller has good and marketable title to all these assets, free and clear of all mortgages, liens, encumbrances, and security interests. The use of these assets conforms in all material respects to applicable governmental ordinances, statutes, and regulations, federal, state and local and all physical assets will be operable at Closing. 13 Ii~ - '" "' -. ,1-,_ ""-,,';; '-';-"--',-,.-, ~ "-'~ ~-'"--'j;;- ~' _-,n- "'&;*".,0 I" I r' . 7.5 Litigation. No judgment is outstanding, and no litigation, proceedings or investigations are pending, or to the knowledge of Seller, threatened, which might result in any material adverse effect upon the assets of the barlrestaurant/catering business or the PLCB application filed pursuant to Article 4 or wbich might result in any material adverse effect upon the operation of the bar/restaurant/catering business or wbich might question the validity of or might adversely affect any action taken or to be taken pursuant to or in connection with tbis Agreement, and Seller knows of no reasonable basis for any such litigation, proceeding or investigation. 7.6 Complia!1cewith Laws. Seller FemRock-Snyder, Inc., to the best of its knowledge, is in all material respects in compliance with the Pa. LCB Code, rules, regulations and policies and all other applicable federal, state, and local laws including the Bulk Sales Act. 7.7 Absence of Conflicting Agreements or Required Consents. With the exception of the PLCB approval referred to in Article 4 herein, the execution, delivery and performance of this Agreement is not conditioned on or probibited by, and will not conflict with, constitute grounds for termination of, or result in a breach of the terms of the certificates of incorporation or bylaws of Seller or any contract to wbich Seller is a party. 7.8 Miscellaneous. No representation or warranty made by Seller in tbis Agreement and no statement made by it or on its behalf in any certificate, document, list or exbibit furnished in connection with the transaction herein contemplated contains any untrue statement of a material fact or knowingly omits any material facts necessary to full complete disclosure. 14 -. -~.~: "~ - ~,-~.::--:-~:.~ ~~, '--.. -- :' : --''':-',''"-,- , -. '~ -+~ ~:~' . "':' '- - '-<, :" "",",,r;,,~!, .~::., :; ,_, -~---":~.---'- 1']1 , , " The respective representations and warranties made by Seller shall survive the Closin~. ARTICLE 8 COVENANTS 8.1 Negative. Between the date hereof and the Closing Date, except as contemplated by this Agreement, Seller will not, without the consent of Buyer, with respect to the purchase assets: 8.1.1 LWM. Create, assume or permit to exist any mortgage or pledge or subject to lien or encumbrance any o(the purchases assets to be sold, whether now owned or hereafter acquired, except in the normal and usual course of business. 8.1.2 Disposition o1l"Purchased Assets. Sell, assign, lease or otherwise transfer or dispose of any of the purchased assets, whether now or hereafter acquired, except in the normal and usual course of business, or in connection with the acquisition of similar property or assets in the normal and usual course of business. 8.1.3 Employee Matters. Increase the compensation or bonuses payable or to become payable by Seller to any of the employees of the bar/restaurant/catering business except in accordance with existing employment practices, or effect any unnecessary changes in the management, personnel policies or employee benefits of bar/restaurant/catering business. It is noted hereunder that Buyer has no responsibility to Seller's employees. 1 5 . .J' '_..Jo .~,'_ _' +J _ " .. - ;",--~ ~J~'';:' _'.'""_ .l_~'''- " ',I. . v' 1 J_ 8.2 Affirmative. Seller will, between the date hereof and the Closing Date, d~ the following: 8.2.1 Furnish to Buyer such information concerning the purchased assets to be sold that Buyer may reasonably request. 8.2.2 Maintain the tangible purchased assets of the bar/restaurant/catering business in as good operating condition as existed on the date hereof, reasonable wear and tear excepted. 8.2.3 Maintain in force existing policies of hazard and liability insurance for the purchased assets, which policies provide insurance coverage equal to the replacement value of all property. 8.2.4 Conduct the business and operations of bar/restaurant/catering business in the normal course. ARTICLE 9 REPRESENTATIONS AND WARRANTIES OF Buyer Buyer make the following representations and warranties, all of wbich have been relied upon by Seller in entering into tbis Agreement, except as specifically provided, all of which shall be true and correct on the Closing Date as if then made. 9.1 Organization. Buyer McDunk, Inc. is a corporation duly organized, validly existing 16 '<- " ~ u,_ -JA.i",. -';"'-;"".: _<- ,,' "'>;--,~ - -' ", -- ~~ """"'~' ,- w: --_._--~-~--, ----,-.-.--~. F._, . , , and in good standing under the laws of the Commonwealth of Pennsylvania and the corporatio~ has full power and authority to enter into and perform this Agreement. 9.2 Authorization. The execution and delivery of this Agreement has been duly authorized by the Board of Directors and Stockholders of Buyer McDunk, Inc. and that tbis Agreement has been duly executed and delivered and constitutes a valid and binding obligation of Buyer, enforceable in accordance with its terms. 9.3 Litigatio!l. No judgment is outstanding and no litigation, proceedings, investigations or other actions are pending against any Buyer wbich might materially and adversely affect the enforcement oftbis Agreement or the right of Seller to the Escrow Deposit or of the ability of Buyer . to consummate this transaction and Buyer know of no threat of any such litigation, proceeding, investigation or other action. 9.4 Oualifications. To the best of its knowledge, Buyer are qualified to receive the approval of the PLCB required under Article 4. 9.5 Financial AbiIil;y. Buyer has financial ability to consummate tbis transaction as provided in tbis Agreement. Buyer, McDunk, Inc. Corporation shall provide to Seller statements of its financial statements and corporate federal income tax returns no later than May 1 st of each year. Further, in the event that a default has occurred in any calendar year wbich has been cured by Buyer. Ira J. McManus and Leslie J. McManus, bis wife and James R. Dunkle and Karen L. Dunkle, bis wife, 17 . .. . - --. ,-.. .-.--. - ...._---. , '. , . , . . , individually, shall also be required to provide their individual federal tax returns to Seller on or before May 1st for the calendar year of the default. 9.6 Miscellaneous. No representation or warranty made by Buyer in this Agreement and no statement made by it or on its behalf in any certificate, documents, list or exbibit furnished in connection with the transaction herein contemplated contains any untrue statement of any material fact or knowingly omits any material fact necessary to full and complete disclosure. The respective ~epresentations and warranties made by Buyer shall survive the Closing. ARTICLE 10 CLOSING DATE AND PLACE The consurrnnation of the transaction provided for by tbis Agreement (the "Closing") shall take place on a date (the "Closing Date") and at a time mutually agreeable to Buyer and Seller within ten (10) days after the Order of the PLCB granting approval of the assignment of the Restaurant License and Permits to Buyer has become final but in no event, later than May 1, 1999. Time is of the essence in Closing. Closing shall occur at the office of Barbara Sumple-Sullivan, Esquire, 549 Bridge Street, New Cumberland, Pennsylvania. ARTICLE 11 CLOSING DOCUMENTS 11.1 INSTRUMENTS AND DOCUMENTS - SELLER. On or before the Closing Date, Seller shall have delivered to Buyer the following 18 < . ~ .~ , ,-, ....".,""" I. .'.- 'Jk~' ..- .----< .,'.t. ^ .-"- ~ _,- ;;.,.r"~__L ;,,~" '"~"":W)':' .J " . , . , r instruments and other documents, all of wbich shall be in form reasonably satisfactory to counsel for Buyer: 11.1.1 Resolution. Certified resolutions of the shareholders approving the sale and certified resolutions of the Board of Directors of Seller FernRock-Snyder, Inc. authorizing the execution and performance of tbis Agreement. The resolution of Seller shall specifically authorize Seller to sell all of the assets listed in Article 1 above. 11.1.2 Bill of Sale. A bill of sale for all the personalty sold pursuant to Article 1 hereof. 11.1.3 Certificate of Title and Warranties. All certificates of title and manufacturers' or dealers' warranties, if any, covering the property sold. 11.1.4 Assignment of Intangible Assets. An assignment of the intangible assets sold pursuant to Article 1.4, including a transfer of the fictitious name. 11.1.5 Certificate. A certificate signed by the President or Vice President of Seller and the representations and warranties of Article 7 are true and correct in all material respects and that Seller has complied with the covenants of Article 8. 11.1.6 Bulk Sales Act. Evidence satisfactory to Buyer's counsel of Seller's satisfaction of the Bulk Sales Act. 19 ".'-~ -...~--_.- --- .w' " ~",;", "'-, "^ ,J,. ,,_-..;!""-','. "" ,-'_W;- "'0"';'.' ---- ~~_.._--- -. --...--.'-----.,-.----- '" . '- ,-. ";,,,-~ ,[ '''!oj;(- ". , . . , , , 11.2 INSTRUMENTS AND DOCIJMRNTS Buyer. On or before Closing Date, Buyer shall have delivered to Seller the following instruments and documents, all ofwbich shall be in form reasonably satisfactory to counsel of Seller. 11.2.1 Payment. Payment of the initial cash consideration of FORTY -FIVE THOUSAND ($45,000.00) DOLLARS envisioned by Article 1. 11.2.2 Security Agreements. All documents necessary to perfect the security interests, pledge of stock, and ass(grnnent ofleases contemplated by Article 3 hereof 11.2.3 Capital Stock. Capital Stock in the registered form as per Articles 3.2 and 3.3 of tbis Agreement. 11.2.4 COI:poration Bylaws. Copies of corporate bylaws certified by its Secretary certifying the corporation's action are authorized and the Corporation is in good standing. ARTICLE 12 COSTS AND EXPENSES Except as otherwise specifically provided herein, Seller and Buyer shall each bear their own legal fees and other costs and expenses with respect to this transaction. All broker fees shall be paid by Seller. 20 ~, " -_.L _J~ -' y, "'-', ~ ' .'- , ,; -,-, "~":.. -.', _,,' jj1;~- . ", ARTICLE 13 RISK OF LOSS DAMAGE TO FACTT.ITTES 13.1 ~. The risk ofloss or damage to any of the purchased assets shall be upon Seller prior to the Closing and thereafter upon Buyer. 13.2 Damage. In the event of any damage, destruction or loss to any of the purchased assets prior to the Closing Date, Seller shall take immediate steps to repair, replace and restore the damaged, destroyed or lost property to its former condition. In the event that the property is not completed repaired, repl)lced or restored on or before the Closing, Buyer may elect to postpone the Closing Date until such time as the property has been completely repaired, replaced or restored. Buyer agree to postpone Closing only in the event that equipment and damaged or destroyed substantially and materially effect the operation of the bar/restaurant/catering business, as determined by Buyer. If such property has not been completely repaired, replaced or restored witbin a period of four (4) months after the Closing Date established herein prior to any postponement under tbis Article, and if at that time Buyer are not willing to close on the terms provided below in tbis Article, either Buyer or Seller may, by written notice to the other, cancel and terminate tbis Agreement, in wbich event the Escrow Deposit will be returned to Buyer. In the alternative, Buyer may elect to consummate the Closing on the Closing Date or at any time during the postponement pursuant to this Article and accept the property in its then condition in wbich latter event, Seller shall assign to Buyer all Seller's right under any insurance or pay over to Buyer all proceeds of insurance covering the property damage, destruction or loss. In the event Buyer elect to postpone the Closing Date as provided above, Seller and Buyer will cooperate to extend the time during wbich tbis Agreement must 21 ~- ~-~ .~ J, ,l '.' <-- _'~,{ri ,-, .,,;; I.':' ~ _,__k._ "--~.",,- .- .' ,., ~b' . . , , .. . .' " . , be closed as may be provided by Article 10 hereof to permit a Closing on the extended Closing Date and Seller shall use its best efforts to repair, replace and restore the damages, destroyed or lost property to its former condition as promptly as possible. ARTICLE 14 INDEMNIFICATION 14.1 Rights of Parties. Seller shall indemnify and hold Buyer harmless and Buyer shall indemnify and hold Seller harmless from any and ail claims, liabilities, damages, losses, costs, expenses and other obligations of every kind and every description, contingent or otherwise which arise out of any breach of their representations, warranties, or covenants contained herein or any certificate or other documents delivered hereunder, or wbich accrue from the conduct and operation of the business of the bar/restaurant/catering business while it was controlled by the indemnifying party other than those claims, liabilities, damages, losses and costs wbich result solely from the party's own specific act of omission. This indemnification shall iI;clude holding the other harmless for any and all costs, including attorney fees and costs, associated with defense of any_ claim or cause of action including all costs and expenses, including attorney's fees, for enforcement of tbis indemnification. 14.1 Condition Precedent. As a condition precedent to indemnification against the claims of third parties, the indemnifying party shall be given written notice of any claims in sufficient time to allow the party an opportunity to defend or compromise the claim at its sole expense. 22 ,"" '." ~: I' ,'. . -:.~ .'u- I ., , .:..-. .;~ .-' ~-d"i!f.'<l'~!ii!<,'- " to , . , . ARTICLE 15 COVENANT NOT TO COMPETE Seller's principal, Fern L. Wilson, shall sign a Covenant Not to Compete in the form set forth as Exbibit "C" attached herein at Closing. ARTICLE 16 CONSULTING AGREEMENT Buyer agree to enter into a consulting agreement with Seller's principal, Fern L. Wilson. Pursuant to such agreement, Fem L. Wilson agrees to provide such personal guidance and assistance to the Buyer for a period not to exceed one month following Closing. Seller's principal, in accordance with the terms of the Agreement set forth as Exbibit "c" shall also provide telephone consultation to Buyer for an additional (120) days period. ARTICLE 17 NOTICES All necessary notices, demands, and requests shall be deemed duly given when personally delivered or three (3) days after being mailed by registered or certified mail, postage prepaid, and addressed as follows: TO Buyer: McDunk, Inc. 23 ="-~~,~..- .- . ,'.,. ~- ~ -. - , -~--"'," .' ~-. ^ -'. '.; "w_~' . . , { .' f Copy to: Anna Marie Sossong, Esquire Skarlatos & Zonarich 204 State Street Harrisburg, PA 17101 TO SELLER: Fern L. Wilson, President FernRock-Snyder, Inc. 68 Cumberland Road Lemoyne, P A 17043 Copy to: Barbara Sumple-Sullivan, Esquire 549 Bridge Street New Cumberland, PA 17070 ARTICLE 18 BENEFIT AND ASSIGNMENT Tbis Agreement shall be binding upon and insure to the benefit of the parties hereto, their successors and assigns. Tbis Agreement may not be assigned by Buyer without the consent of Seller. ARTICLE 19 ENTIRE AGREEMENT This Agreement and its exhibits, all of wbich are incorporated into and made a part hereof, embody the entire agreement and understanding between the parties with respect to the subject matter hereof, and supercede any prior understanding whether written or oral between the parties hereto. Only tbis Agreement, its exhibits and the documents delivered pursuant thereto may be relied upon to establish the respective rights and obligations of the parties. 24 ,~.." . " ~- . '. ,'. ,-~ '""'~~" '-c J", '1' ~1l:"'i!i<lT"" , , . . , . " ARTICLE 20 CHOICE OF LAW This Agreement shall be construed and governed in accordance with the laws of the Commonwealth of Pennsylvania. ARTICLE 21 COVENANT OF FURTHER ASSURANCES After Closing, Seller and Buyer, upon request of the other, shall take such other action and execute and deliver such other instruments as may be reasonably necessary to assure, complete, and evidence the full and effective sale and assignment of the purchased assets pursuant to tbis Agreement. IN WITNESS WHEREOF, the parties hereto have executed tbis Agreement as of the day and year first above written. ATTEST: , i~~~ U ' Secretary SEL . R: cJ t&!~ L. Wilson, President (SEAL) ATTEST: BUYER: , Secretary ~Inc. President (~AL) :rr;.fi, (it c f?7 fr1'I if J' y, 25 11 > ~ C'm - , " " . . < :;;: ~;,;,' ~i;.; . , t , . " . . , GUARANTEE AND SURETY AGREEMENT IRA J. McMANUS and LESLIE J. McMANUS, bis wife and JAMES R. DUNKLE and KAREN L. DUNKLE, bis wife, joint in tbis Agreement to guarantee and become surety for the full and timely payment of principal, interest, and any and all other sums and obligations of any nature whatsoever wbich are due or wbich become due at any time or in any manner to Seller, its assigns or FERN L. WILSON, individually, under or in connection with this Asset Purchase Agreement, and for the full and timely payment of any and all obligations, sums or liabilities of any nature whatsoever, whether direct or indire~ absolute or contingent, voluntary or involuntary, and whether past, present or future, now due or to become due, from Corporation to FernRock-Snyder, Inc. or its assigns (the "Obligations") under the Asset Purchase Agreement, including by maturity or acceleration, without notice or demand or set off, counterclaim or deduction of any kind. This Agreement is a continuing, aesolute and unconditional guaranty and suretysbip of payment and not merely of collection. The obligations of Guarantors hereunder are joint and several and are independent of the obligations of Corporation and any other guarantor or surety for the Obligations, and of the availability of any collateral or security for the Obligations. Guarantors are liable to FernRock-Snyder, Inc. or its assigns hereunder, pursuant to the Asset Purchase Agreement and FernRock-Snyder, Inc. or its assigns may enforce its rights and remedies hereunder against Guarantors, or any of them in any combination, at any time and from time to time, whether FernRock-Snyder, Inc. attempts to enforce or enforces FernRock-Snyder, Inc.'s rights and remedies against Corporation or any other guarantor or surety for the Obligations, or whether FernRock- Snyder, Inc. joins Corporation in any enforcement action or proceeding, or whether FernRock- 26 ^ , or _ ~~ " - '-. ,_ "<"" .',,,.v',- '.<1 .-,~ o:!-~!,' .' , , . , . " , . , . , Snyder, Inc. first proceeds to liquidate or realize on any collateral or security for the Obligations. Guarantors hereby voluntarily, intelligently, knowingly and unconditionally waive (a) all notices to which Guarantors may be entitled but which may legally be waived, including without limitation notice of (1) acceptance of tbis Agreement, (ii) any obligation incurred at any time by Corporation under or in connection with the Obligations, (iii) nonpayment, protest, dishonor or default; and (b) presentment for payment, demand for payment, and protest; and ( c) any defense available to Corporation; and (d) any defense or circumstance which might constitute a legal or equitable discharge of a ,guarantor or surety. GUARANTORS HEREBY VOLUNTARILY, KNOWINGLY, INTELLIGENTLY AND IRREVOCABLY WAIVE ANY AND ALL RIGHTS GUARANTORS MAY HAVE AT ANY TIME (WHETHER DIRECT OR INDIRECT, OR BY OPERATION OF LAW OR CONTRACT, OR OTHERWISE) TO ASSERT ANY CLAIM AGAINST CORPORATION ON ACCOUNT OF ANY PAYMENT MADE UNDER THIS AGREEMENT, WHETHER BY OR FOR SUBROGATION, REIMBURSEMENT, EXONERATION, CONTRIBUTION, INDEMNITY OR OTHERWISE. Tbis Agreement and Guarantors' payment obligations hereunder will remain in effect if at any time any amount paid under or in connection with the Obligations is rescinded or recovered by any persons or entity, or ifFernRock-Snyder, Inc. or otherwise becomes liable to or does repay, restore or return any such amount, to the same extent as if such payment had not been made, and notwithstanding any termination or cancellation of the Obligations or tbis Agreement, both of which shall be deemed to be reinstated even following any such termination or cancellation for purposes of 27 I. . ~;,..",,' " " .~o<_." ",,",.1, . ~"'-~", , . , , , " . , ' , , , 'continuation of Guarantors' liability hereunder. FernRock-Snyder, Inc.'s determination as to whether to repay, restore or return any payment shall be binding on Guarantors. Guarantors hereby agree to payor reimburse FernRock-Snyder, Inc. for any and all out-of- pocket costs, expenses and fees at any time incurred or paid by it in the administration, enforcement or collection of Guarantors' obligations under tbis Agreement, including without limitation reasonable attorneys' fees. If the Corporation is in default, Guarantors will provide such financial information as FernRock-Snyder, Inc. may from time to time request, including federal income tax returns and schedules, and balance sheets and income statements in form and content satisfactory to FernRock- Snyder, Inc. GUARANTORS HEREBY VOLUNTARILY, INTELLIGENTLY AND KNOWINGLY EMPOWER THE PROTHONOTARY OR ANY ATTORNEY OF ANY COURT OF RECORD TO APPEAR FOR GUARANTORS AND TO CONFESS JUDGMENT FOR ONE HUNDRED FIFTEEN THOUSAND ($115,000.00) DOLLARS AND ATTORNEYS' FEES EQUAL TO TEN (10%) PERCENT OF SUCH AMOUNT, AND COSTS OF SUIT, WITHOUT FILING A COMPLAINT, OR, BY FILING A COMPLAINT OR COMPLAINTS FROM TIME TO TIME, FOR ANY OR ALL OTHER AMOUNTS AS OR AFTER THEY BECOME DUE UNDER THE OBLIGATIONS OR HEREUNDER, INCLUDING WITHOUT LIMITATION ANY PERIODIC PAYMENTS THE ENTIRE BALANCE OF PRINCIPAL DUE OR PAYABLE, LATE , CHARGES, INTEREST, EXPENSES AND FEES, COSTS OF SillT AND ATTORNEYS' FEES EQUAL TO TEN (10%) PERCENT OF THE TOTAL OF ALL SUCH AMOUNTS, 28 'i~{ , , " . , , , , .' " ' , GUARANTORS HEREBY RELEASE ALL ERRORS OR DEFECTS IN ANY SUCH ACTION AND THE ENTRY OF ANY SUCH JUDGMENT, AND WAIVE ALL LAWS EXEMPTING REAL OR PrRSONAL PROPERTY FROM EXECUTION. ~~~, '__A Witness J. McManus, Jr. ~ p,ees Witness ~~\ R. Dunkle Witness 4/",) iL[L.4<.-uG/ Karen L. Dunkle 29 ^^~~ " ,c" ,,_,~o . . ), Ii .. EXHIB!T "h'o" , . ,. I r "A" ._~~ . ~ ";_. :."_': _': "_:-_:":C_:;~~._'..~ -:~_._-:_,.....=--;;_:~:, ::<, ~_.'.' '.' '~ <__. _..... ~.~~_;' .>,' :'~.. - ~~~-..-'- \~,":,: ~-, '-'~.' '~~' ::". ':.:':~-;'- : <_.;",..~,"~:,:~:;. :-~_':':':~""A~ ~...'.'__ '.,:;i k." '~-'... ~, ~. . ,-' ',' _::.'_.~ "~"~'f___d",,,;,,-~ ,.;",,' "', __~, ,,~ ~. ~~~~~~':~~~~~':';:~-'''7:iJJ~,~~~f'J~'~ ~t~~~~~~~~';"""'7""~';'~:':':~~.~::"=:":::.~:~'""" ';':,'e9/~iltgge .;14:52 " . ''1i'7::'7s1-~e~~. '.' ',::c:rifHEw~iCA';'~'7' , ,'''AGE, 84 .., '"<;.." _' ; ~"r~,,~:d ?', : ':~~"~.~:,:?"'... .' I , , , ---,-,.=---......_-------,-- ~~ '-'-- EQUIPMENT LtS'I' lJi.shwasher - Jackson - high lelllperature 1 rack slide through wI SS table Wl!Jlt-in Freezer" 6'X 6' with shelviQg W~-:ill Cooler - 9'X II' with shelving 20 Quart B~esJee mixer with SS floor stand on wheels 2 StackiQg Bikers Pride Convection Ovens Mereu &J101ving , various sizes, 5 units :l B~ SS'Pot Sluk . SS Work Tables - I @ 4'X 2.5', I @ 6'X 2.5", I @ 3.5'X 2.5' with wheels ? Under Coun~r Freezers :: I Under Co.r RefQiCrator . ? 6' C0W1lerlie!gbt'Refij8e~tor Units - I witH divided bins in top 2 Bus Cans . 1 55, 1 Rllbbennaid ; I Cooler for bottled witer. ' Cleveland Steamer - Steameraft 3.1 with 55 table Sandwich Unit - BevAir - S' sa on wheels StQIWllable 6' 5 Bay SS (1 Bay not woHcing) Garland Broiler - qpriJ.l1t with top oven woHdng off broiler. , . seperate coUom oven Vulcan Stove - 6 Burner +. Griddle Top 2 Convect.ion Ovens on bottom - unit on wheels Deep Fryer - 40 Qt. Wens - floor model Reach-in Refrigerator - Victory - 1 door 55 Reach-in Refrlacrator . Randell - 2 door S8 ~n wheels (still under warranty) Globe Slicer - gravity feed . 12 case 4#10 ean carl SS top, on wqeels 600# IIoshizaki Ice M6ker with 4()(j# storage bin Bakers Cart for 12lrays . Fax Machine Sharp FO-330 with seperate line Catering Supplies . Numerous Chafers, Insulated Hot Boxes, Trays, Bowls 6' Mobil Gas Grill wi 2 50# propane tanks . '.. " f::~~MI!i1~ge i4l52. ,~1F1~1..f~63 il ' ''!ffifi::~::' ~ ':.~ ~ .~:~ " .... 1'\ 'CI~"'~~~~'-" : "'-- ,,;:.,"~!i - "__, ."~,,- . .' ,. , ... Drllught Beer System - 6 SWgot - Remote Keg Cooler in basement - 6'X 12' 2 J)erllck Bottle Coolers - 1 @ 4.5', 1 @ 6.5' ~ Qay Siqk with Ic~.aP1s on either end SWmlersible BarMaid Glass Washet OMRON RS 18 Cash Register. ongoing maintenance contract Display Beer c90ler .. BevAir 3 door. 6' on wheels ColorTrnc TV t~) Wailres.~ Slalioll .. 4' Cl'Nltf\f/loA ()JMM-l .---... ---- . ;,l.Gas Dryen; - May tag - commercial THEL Sump Pump (never used . gas powered) Various exlra tables arid chairS" Copier MITA DC-I255 Floor Safe - Sentry Valueguard 2 File Cabinets Cppy;(/~) P./I.ItlI-ltL Plymouth Gran Voyager 1990, Cell Phone, AC ,_.- .-."- '-. -j.- . ile;~~- ~~~.bei~::g ~o ;i~=:~g GUW1(.~.~'~. ''(n~7V'7~~dt0 Coffee Machipes . - D n L ID ~3!-{/rYl . . . ~",. ..' Water Softener _ Lwe& /, ;. . <' . , . , ., '. - EXHIBIT ~' ",' .~":"j-~:, _ ~ -,..," ,-.,,'-'j ." "B" i . "f_" - ~ ' ""." L...... :::-"~~_ ':;_-~~'_.l "'~-__" ... "r".. ... .. '\ ' f:'J0.. "'.~. V;fl;; @J)/ 0~1999' Page 1 . , _ 'ill> ,t._,.__ ", :-_.;'_'-:_-: -. ,-,,,~-"~. -iL~-~o.i", FerrtrOck-Snyder to McDunks, Inc. Compound Period .......: Monthly Nominal Annual Rate ... : Effective Annual Rate.. : Periodic Rate .............. : Daily Rate .................. : 5.250 % 5.378 % 0.4375 % 0.01438 % CASH FLOW DATA Amount Number Period End Date Event 1 Loan 2 Payment 3 Payment Start Date 06221999 0701 1999 . 07 01 2006 115,000.00 774.92 87,352.69 1 84 Monthly 1 AMORTIZATION SCHEDULE - Normal Amortization Date Payment Interest Principal Loan 06 22 1999 1 0701 1999 774.92 148.87 626.05 2 0801 1999 774.92 500.39 274.53 3 0901 1999 774.92 499.18 275.74 4 1001 1999 774.92 497.98 276.94 5 11011999 774.92 496.77 278.15 6 12011999 774.92 495.55 279.37 1999 Totals 4.649.52 2.638.74 2,010.78 7 01 01 2000 .774.92 494.33 280.59 8 02 01 2000 774.92 493.10 281.82 9 03 01 2000 774.92 491.87 283.05 10 0401 2000 774.92 490.63 284.29 11 05 01 2000 774.92 489.39 285.53 12 0601 2000 774.92 488.14 286.78 13 07012000 774.92 486.88 288.04 14 0801 2000 774.92 485.62 289.30 15 09012000 774.92 484.36 290.56 16 10012000 774.92 483.08 291.84 17 11012000 774.92 481.81 293.11 1812012000 774.92 480.53 294.39 2000 Totals 9,299.04 5,849.74 3,449.30 19 01 01 2001 774.92 479.24 295.68 20 0201 2001 774.92 477.94 296.98 21 0301 2001 774.92 476.64 298.28 22 04 01 2001 774.92 475.34 299.58 23 05 01 2001 774.92 474.03 300.89 24 06 01 2001 774.92 472.71 302.21 25 07 01 2001 774.92 471.39 303.53 26 08 01 2001 774.92 470.06 304.86 06 01 2006 Balance 115,000.00 114,373.95 114,099.42 113,823.68 113,546.74 113,268.59 112,989.22 112,708.63 112,426.81 112,143.76 111,859.47 111,573.94 111,287.16 110,999.12 110,709.82 110,419.26 110,127.42 109,834.31 109,539.92 109,244.24 108,947.26 108,648.98 108,349.40 108,048.51 107,746.30 107,442.77 107,137.91 ~~ ' '..: ~. ".:~- ~'~~'- c.'__._. - -'-~-~ l~'_:._.,~:_ _:._~ .~"-,. -.. '.~~~'~.~-~""-'----~ ..~. _ ~':'" 'i-:~;~-',.'~:~~. ~_: ~_:~.~~_ ~c ------' ~-. --- . .. ". , ~" ' , I , . @ " , i':i';" 7 06 1999 . . "',"- Page 2' Per'nroC1<-Snyder to McDunks, Inc. Date Payment Interest Principal Balance 27 09 01 2001 774.92 468.73 306.19 106,831.72 28 1001 2001 774.92 467.39 307.53 106,524.19 29 11 01 2001 774.92 466.04 308.88 106,215.31 30 1201 2001 774.92 464.69 310.23 105,905.08 2001 Totals 9,299.04 5,664.20 3,634.84 31 01 01 2002 774.92 463.33 311.59 105,593.49 32 02 01 2002 774.92 461.97 312.95 105,280.54 33 03 01 2002 774.92 460.60 314.32 104,966.22 34 04 01 2002 774.92 459.23 315.69 104,650.53 35 05 01 2002 774.92 457.85 317.07 104,333.46 36 06 01 2002 774.92 456.46 318.46 104,015.00 37 07 01 2002 774.92 455.07 319.85 103,695.15 38 08 01 2002 774.92 453.67 321.25 103,373.90 39 09 01 2002 774.92 452.26 322.66 103,051.24 40 1001 2002 774.92 450.85 324.07 102,727.17 41 11 01 2002 774.92 449.43 325.49 102,401.68 42 1201 2002 774.92 448.01 326.91 102,074.77 2002 Totals 9,299.04 5,468.73 3,830.31 43 01 01 2003 774.92 446.58 328.34 101,746.43 44 02 01 2003 774.92 445.14 329.78 101,416.65 45 03 01 2003 774.92 443.70 331.22 101,085.43 46 04 01 2003 774.92 442.25 332.67 100,752.76 47 05 01 2003 774.92 440.79 334.13 100,418.63 48 06 01 2003 774.92 439.33 335.59 100,083.04 49 07 01 2003 774.92 437.86 337.06 99,745.98 50 08 01 2003 774.92 436.39 338.53 99,407.45 51 09 01 2003 774.92 434.91 340.01 99,067.44 52 10012003 774.92 433.42 341.50 98,725.94 53 11012003 774.92 431.93 342.99 98,382.95 54 12012003 774.92 430.43 344.49 98,038.46 2003 Totals 9,299.04 5,262.73 4,036.31 55 01 01 2004 774.92 428.92 346.00 97,692.46 56 0201 2004 774.92 427.40 347.52 97,344.94 57 03 01 2004 774.92 425.88 349.04 96,995.90 58 04 01 2004 774.92 424.36 350.56 96,645.34 59 05 01 2004 774.92 422.82 352.10 96,293.24 60 06 01 2004 774.92 421.28 353.64 95,939.60 61 07 01 2004 774.92 419.74 355.18 95,584.42 62 08 01 2004 774,92 418.18 356.74 95,227.68 63 09 01 2004 774.92 416.62 358.30 94,869.38 64 1001 2004 774.92 415.05 359.87 94,509.51 65 11 01 2004 774.92 413.48 361.44 94,148.07 6612012004 774.92 411.90 363.02 93,785.05 2004 Totals 9,299.04 5,045.63 4,253.41 ~ """ ~. ,- " " :.- J~~ ," .1, "''-''_''m_ d_. . . ',- .1 _ C'_ ,,-~:-.-. ",< ' '."~. L _ ~. __~ ~'_' ~-.~~.~:,~_~:~~:~ ~':~L,~:~~iV ". -,-+--- > _- _'. 'l , , . eM @'o7 ~6'199~ ' ~; , ",--,:,'" p.age 3. f';eiTTtock-Snyder to McOunks, Inc. Date Payment Interest Principal Balance 67 01 01 2005 774.92 410.31 364.61 93,420.44 68 02 01 2005 774.92 408.71 366.21 93,054.23 69 03 01 2005 774.92 407.11 367.81 92,686.42 70 04 01 2005 774.92 405.50 369.42 92,317.00 71 05 01 2005 774.92 403.89 371.03 91,945.97 72 06 01 2005 774.92 402.26 372.66 91,573.31 73 07 01 2005 774.92 400.63 374.29 91,199.02 74 0801 2005 774.92 399.00 375.92 90,823.10 75 09 01 2005 774.92 397.35 377.57 90,445.53 76 1001 2005 774.92 395.70 379.22 90,066.31 77 11012005 774.92 394.04 380.88 89,685.43 78 1201 2005 774.92 392.37 382.55 89,302.88 2005 Totals 9,299.04 4,816.87 4.482.17 79 01 01 2006 774.92 390.70 384.22 88,918.66 80 02 01 2006 774.92 389.02 385.90 88,532.76 81 03 01 2006 774.92 387.33 387.59 88,145.17 82 04 01 2006 774.92 385.64 389.28 87,755.89 83 05 01 2006 774.92 383.93 390.99 87,364.90 84 06 01 2006 774.92 382.22 392.70 86,972.20 85 07 01 2006 87,352.69 380.49 86,972.20 0.00 2006 Totals 92,002.21 2,699.33 89,302.88 Grand Totals 152,445.97 37,445.97 115,000.00 !!\ "- ,,', , '_ _ _ ~ I , ,~ __ __ _ "-~ ~_ ,;__'J'_,"" "')',~:~..'j--,: _L", f~~-;' . "." , ';'.. 1 (@..::~,: ~ ~_:'--,-.. 1':;:;., @t 7 'O~ 19~9 Page 4. 'J;emroak-Snyder to McOunks. Inc. Last interest amount decreased by 0.01 due to rounding. C', , , , . . EXHIBIT <:1 "e" , ~ ",'" ,.' " , ,-,'., .~ ~r.~: ".~JU;" .,~,;,,'.'.Id . . . ' . .~. " 1M.-. - _ ~'.u___. ",:,--y~ -:', "~~, -" :_- '-"~~~"i .": I tl' ~";;'~~::,;:~:::;:::.;o:,:,:, _' ~'... ".''''- " , " \ I " , . EXHIBIT "C" NON-COMPETITION AND CONSULTING AGREEMENT THIS AGREEMENT made tbis day of .1999, by and between FERN L. WILSON, of New Cumberland, Cumberland County, Pennsylvania and McDUNK, INC., a Pennsylvania corporation (hereinafter referred to as "Buyer"). WITNESSETH: WHEREAS, Fern L. Wilson is the principal ofFernRock-Snyder, Inc.; WHEREAS, Fern L. Wilson and FernRock-Snyder, Inc., have entered into agreements for sale of real estate and certain business assets used and useful in: operation of a restaurant, bar and catering business known as Pete's Cafe; WHEREAS, McDunk, Inc. recognizing Fern L. Wilson to be a competitive force in the food service industry, desire to secure a noncompete from Fern L. Wilson, as well as enter into a consulting agreement with Fern L. Wilson for her services; NOW, THEREFORE, the parties, intending to be bound do agree as follows: '. ~_,' __, --P'_m_ , ~,~ " .- "~d'" .":~_ -21 , "I it . . , ; "~-.~- : " '". , . ~_, "", C"~- ,~ " , , ' , A r'" . ~ /. 1 \ ., (I 'C . . t f , Non-competition Clause. Fern L. Wilson shall not, directly or indirectly, except as set forth herein or by mutual agreement of the parties, acting alone or in conjunction with others: 1. (a) Work as director, officer, employee, partner, shareholder (or in any other capacity) (except for Buyer) in any bar (whether same serves food or not) and any catering and restaurant business providing food services within a twenty (20) mile radius of 40 1- 403 Market Street, New Cumberland, for a period of three (3) years from closing; and (b) Perform c~tering to any existing accounts of Pete's Cafe, FernRock-Snyder, Inc. or Fern L. Wilson, individually, for a period of three (3) years from the date of tbis closing. 2. Acknowledgment of Harm from Violation of the Non-Competition Clause. The parties acknowledge and agree that irreparable injury will result if Fern L. Wilson or FernRock- Snyder, Inc. breaches tbis noncompetition covenant. The parties therefore agree that, in the event of any such breach, McDunk, Inc. shall be entitled to all available remedies and damages at law or in equity, including, without limitation, an injunction to restrain any violation of the noncompetition covenant by Fern L. Wilson or any individuals acting for or with her. Fern L. Wilson agrees that the time, area, and business restrictions in tbis noncompetition covenant are reasonable. 3. Compensation. Upon signing oftbis Agreement, Buyer shall pay to Fern L. Wilson the sum of FIVE THOUSAND ($5,000.00) DOLLARS. Draft. 3/12/99 2 ~ ' . ,- - --~'": ~~: . . ,#Ill r ~, .. --. '.- J - ,~_'. '.n .' "." ___ .~:tJ!"~>- . , " , . " .t ,~ J ~ i 1 I .iJ I r :i' 4. Consulting: Requirement. Fern L. Wilson agrees to personally provide guidance and assistance to the principals ofMcDunk, Inc., in the operation of Pete' s Cafe as it shall request for a period not to exceed four (4) weeks. Fern L. Wilson shall further agree to provide telephone assistance to Buyer, as it requests, for an additional three (3) month period beyond the termination of her on-site personal consulting. IN WITNESS WHEREOF, the parties hereto, intending to be legally bound, hereunto set their hands and seals the day and year first above written. WITNESS: (SEAL) Fern L. Wilson ATTEST: (SEAL) , Secretary Draft 3/12/99 3 EXHIBIT "D" 'laT'" . , ~ _I. .,,,, ~ ~ " o . ~ "<', - .~". '~'>ii." _~';;',,~ 401.403 Market Street. Pete's Cafe Repairs Required A. Outside: 1. Outside lock/latch on dining room door is missing. Duct tape was covering the hole on the door where the lock was removed. 2. The hinges to the cellar door are busted off. 3. The Heat pump/central air unit to the dining room was ripped out and found bent up in the back yard. B. Basement: 1. May tag commercial dryer, control box missing. C. Office: No inspection was able to be performed. Cannot verify what is actually there, its condition or missing. D. Dining Room Ladies Room: 1. The sink in the ladies room needs to be repaired. E. Dining Room: 1. The small antique mirror is missing. 2. The 3-section antique mirror is missing. 3. There is no central air/heat pump. F. Kitchen: 1. Two (2) fluorescent fixtures are not working. 2. The hood needs to be cleaned in order to pass inspection. 3. Three (3) grates to stove are missing. 4. Sandwich unit is not working. 5. The salad unit is completely destroyed, disassembled and not operable. 6. The walk in cooler temperature needs adjustment. 7. The walk in freezer is not working properly. 8. The Jackson dishwasher needs repairs. 9. The small commercial microwave was replaced a with household unit suitable for a home. 10, China missing. For minimal operation, replacement must be made of large white oval platters, large white pasta bowls, salad plates, food storage containers plus lids, and an adequate amount of silverware. G. Storage Unit: 1. Hoshisaki Ice Machine is not harvesting ice. 2. Shelf unit missing. H. Bar Room: 1. Large TV in comer removed. 2. Ceiling panels need to be replaced or professional cleaned. ADVAHCED COH\RACT1H~ SVS 7177309139 P.02 '-~~\ , .I ADVANCED CONTRACTING SERVICES, INC P. O. BOX 302,9 SHlREMANSTOWN, PA. 170/1 7/7.73().9/39 PHONE/FAX May H, 20UI Fern Wilson Pete's Cafe 40 I Market Street New Cumberland, Pa 17070 Re; Walk through inspection Dear Fern, Per your request, here are some preliminary costs for equipment repairs from our inspection ('n May \ I, 200 I. 1. Salad Dressing RefrigeralOr a, Refrigerant sight glass showing moisture ill systcm b, Pres&lre control hanging loose in compressor compartment c Evaporator coil aparl and hanging inside box d. T\lbing is oil coated - possible refrigerant leak e Condenser coil needs c.1ealled Approximate c,os! ofrcpairs: $525,00 2 Sandwich relhgerator a. Compressor stuck - will not start - needs replac~d b, Condenscr coil needs cleaned - Approximate cost of repairs: $630,00 3, Randell 2.door RefTigerator a Cond.mser' coil net::ds clt::ant::d b. Set-up temperature ^pproximale COsl of repairs: $45,00 I ~8:35.AM ADVANCED CON1RAC~ING SYS 7177309139 , r P: Fern Wilson Pele's Cafe Page two 4. Desser Rehgerator a. Condenser coilllceds cleaned b. RCI11~llJnt loose condensing llllt c. Set-up temperatures Approximatc cost of repairs $95,00 5, Walk-In Cooler a. Evaporator coil needs clcancd b. Set'llp temperatures Approximate C~lst of repairs $4 5. C/O 6. Walk-In frcc7.cr a. Evaporator fan~ shut down whcn unit cyclcs - possible control problems b, Set-up temperatures Approximate cost of repairs $10500 7. Victory Upright Refrigerator a, Condcnscr coil nceds cleaned b. lee hanging in box c. lee on suction line back to compressor possible refrigerant charge problem or control problcm Approximate Ctlst of repairs: $145.00 8 Kitchen IIV,o\C unit a, Air filters need replaced b Rlower bell needs replaced e Broken condensate pipe on unit d. Blower molor adjustment bracket broken Approximate cost "ftepairs: $175,00 C) Hllshi<<aki lc~ Machine a Unit runs but docs not appear to make ice ^JlProximatc eost of repairs; $275.00 P.03 . .~" ,-,'---,,' . , 71773iZ1'3'139 e8:36 AM ADVANCED CONTRACTING SVS f': ...-" Fern Wilson Pele's Cafe Page three I 10. Dining Room Healpump a, Condensing unit cut loose and sitting in back yard b, Control eompartmenl 11l1d COmpressor open.lo weathe,r c, Compressor need s replaced - open winding d. Refrigcranllinesel kinked at wall- needs replaced e Indoor air handler not running al this time Approximate cost of repairs: $1850,00 Please lwte: Due to the condition and age of system, we recommend le\lal system replacement This cost is $3425,00 The above lepair costs are estimates only rrom a visual inspection oflhe e<.]lIipmcn1. These costs may vary when actual diagnostic time is spent on equipment repairs. If you have any questions. please feel free to call me. T. hank yOl!, ~) . ~{' ,~+,,,---'-' Greg Gibson llillllilO"lill\l'iitY L"- P.04 ._~- i,_ >, . "-~:'H~~_; 1!1 ;,; Creative Construction by Windows & More, Inc. .-;,..1/ .. v I John L Ragonese President 541 Blidge Street New Cumber1and, PA 17070 Telephone (717) 77~ Fax (717) 774-7191 WWN.windC1NSandmoreinc.com May 17, 2001 Pete's Cafe 401 Market Street New Cumberland, P A 17070 774-7273 Windows & More, Inc. will provide all labor and materials to do the following repair work on the 2nd floor apartment at the above address: Kitchen - 17' x 9' (153 sq. ft.) * Install drop ceiling. * Re-install washer, dryer, electric stove and refrigerator. * Install 2 fluorescent lights in ceiling. * Run 6 pes. of electric. * Install a new vinyl floor with underlayment. Allowance $425.00 for flooring. * Paint entire room and trim. Dining Room - 11.5' x 13.5' (155.25 sq. ft.) * Install a new drop ceiling in room. * Hang and finish new drywall on all walls. * Run electric for 4 outlets in walls. * Install new carpeting in room (17.25 yds.) * Paint entire room and trim. ___'.T'_ ~~_.,~- II 2 - Pete's Cafe Bedroom - 13.5' x 10' (135 sq. j1:.) * Install new drop ceiling in room. * Hang and finish new drywall on all walls. * Run 4 pcs of electric. * Install new door and trim into room. * Install new door and trim to closet. * Install new trim on window. * Paint entire room and trim. Hallw!\)' - 28.5' x 3.5' (99.75 sq. ft.) * Install new drop ceiling in hallway. * Re-affix heater to the-wall and paint hallway walls. Bathroom - 5.5' x 13.5' (74.25 sq. ft.) * Install new drop ceiling. * Install new vanity. * Install new marbleized sink top and faucet. * Install new 1.6 gallon commode and seat. * Install new medicine cabinet with light. * Hang and finish drywall in entire room. * Install new window and door trim. * Install I fluorescent ceiling light. * Install 5 pcs. of electric * Paint entire room. ~ /......-. . , fj , Cr In restaurant area 3 - Pete's Cafe * Replace a piece of glass in door - approximate size 6" x 31". * Install 6" fiberglass insulation in ceiling behind walk-in refrigerator- approximately 180 sq. ft. Remove all job related debris from job site. Total..... ...................................... $17,408.00 If you should have any questions, or need further infonnation, please let me know. &/ t?/ John L. Ragonese ~ . ",- ' ("-' , ,-..,';" .;.0.- ..",-;,;..;.;;;- 'r ~.-::"..'" ~ " " _0" ".."-:.-.,-,.'<", ,- '-' -, '- - -.' .,.'-".....'~~- -,..~." ~'. - f., " - , :, i . ( Barbara Sumple-Sullivan, Esquire Supreme Court #32317 549 Bridge Street New Cumberland, P A 17070 (717)774-1445 FERN L. WILSON and FERNROCK-SNYDER, INC., Plaintiffs : IN THE COURT OF COMMON PLEAS : CUMBERLAND COUNTY, PENNSYLVANIA v. : NO. McDUNKS, INC., IRA J. McMANUS, JR., LESLIE J. McMANUS, KAREN L. DUNKLE, and THE ESTATE OF JAMES R. DUNKLE, Defendants : In Equity VERIFICATION I, Fern L. Wilson, individually and as President of FernRock-Snyder, Inc., hereby certify that the facts set forth in the foregoing COMPLAINT are true and correct to the best of my knowledge, information and belief. I understand that any false statements made herein are subject to penalties of 18 Pa. C.S.A. ~4904 relating to unsworn falsification to authorities. DATED: 0-1 r; ~ ,2001 ~~~ FM L. Wilson ~ -, C'_. ,,- _ ~ ~",_,,;;_., "'~{'~;m Barbara Sump Ie-Sullivan, Esquire Supreme Court #32317 549 Bridge Street New Cumberland, P A 17070 (717)774-1445 FERN L. WILSON and FERNROCK-SNYDER, INC., Plaintiffs v. McDUNKS, INC., IRA 1. McMANUS, JR., LESLIE J. McMANUS, KAREN L. DUNKLE, and THE ESTATE OF JAMES R. DUNKLE, Defendants ",:-,' ',---, >-.' _ M_' .. _, _", _ __:" ,~,---'- ;.", ,;~" .;;, "~"';;,, '5' 0,:2'0-,,,,,:'-' ".---,- ^-,--, .', ;;-",,'-'--,,' -, ~-- ," ~, ;--",,: . . # : IN THE COURT OF COMMON PLEAS : CUMBERLAND COUNTY, PENNSYL V ANlA : NO. : In Equity CERTIFICATE OF SERVICE I, Barbara Sumple-Sullivan, Esquire, do hereby certify that on this date, I served a true and correct copy of the foregoing Complaint For Equitable Relief, Preliminary Injunction And Specific Performance, in the above-captioned matter upon the following individual(s) via fax and by first class mail, postage prepaid, addressed as follows: SamuelL. Andes, Esquire 525 North 12th Street P.O. Box 168 Lemoyne, PA 17043 DATED: June 14,2001 Lee Applebaum, Esquire Fineman & Bach, P.C. 1608 Walnut Street 19 or hi Q i, A 19103 Barbara Sumple-Sullivan, Esquire 549 Bridge Street New Cumberland, PA 17070-1931 (717) 774-1445 Supreme Court LD. No. 32317 Attorney for Plaintiffs ~= ~ - . . " '=~, , ~~~r, f r FERN L. WILSON and FERNROCK-SNYDER, INC., IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYL VANIA Plaintiffs CIVIL ACTION - EQUITY v. McDUNKS, INC., IRA J. McMANUS, JR., LESLIE : J. McMANUS, KAREN L. : DUNKLE, and THE ESTATE OF JAMES R. DUNKLE, Defendants NO. 01-3705 EQUITY ORDER OF COURT AND NOW, this 19th day of June, 2001, upon consideration of Plaintiffs' Petition for Special Injunctive Relief, a hearing is scheduled for Wednesday, August 8, 2001, at 9:30 a.m., in Courtroom No. I, Cumberland County Courthouse, Carlisle, Pennsylvania. BY THE COURT, 7. .1. .~ Barbara Sumple-Sullivan, Esq. 549 Bridge Street New Cumberland, P A 17070 Attorney for Plaintiffs Samuel L. Andes, Esq. 525 N. 12th Street P.O. Box 168 Lemoyne, P A 17043 Lee Applebaum, Esq. Fineman & Bach, P.C. 1608 Walnut Street 19th Floor Philadelphia, PA 19103 If!lI , ,. _~,~ "~_ ?" ""'ry',}!l!J!1l!llI!l~_~ .~~ iIl!I -- o ,,",^,'._, .". '" _~ ,_.",;, -~. FLED-O~:FjCE 0:-: : 'I: c~:"'Y:OTAHY 0, Jill' I a , I ~ jt-.,; 'I ...." '... Pr.-,] ?:?? " '_ ..,1.... CUM8ct;Li':,;\]U CUU[\!TY I"JFNI""::;Vl.'\I\,:i'\ _ ~'-'l ,'f ~.J \ ~ 'm'I ~~ ~t' J \ii!il(".!;!r!~,,~~-.vi."-F"%i"f,,_~,~~~___1f;l__n~_~,'!Y!'__ ,~Jf~ ,." ,,~, ",.('-,;i> Jr"" -'~'~'-:n' . Hfn"lift'-:~'''': ",,0:"'.1-, Barbara Sumple-Sullivan, Esquire Supreme Court #32317 549 Bridge Street New Cumberland, P A 17070 (717) 774.1445 -~~iii' r"'---~-"~ , '.. L,4I;,. FERN L. WILSON and FERNROCK-SNYDER, INC., Plaintiffs : IN THE COURT OF COMMON PLEAS : CUMBERLAND COUNTY, PENNSYLVANIA v. ~n_Z NO. ,!J/-3760 T-/7 McDUNKS, INC., IRA J. McMANUS, JR., LESLIE J. McMANUS, KAREN L. DUNKLE, and THE ESTATE OF JAMES R. DUNKLE, Defendants : In Equity ORDER AND NOW, this _ day of , 2001, upon consideration of the verified Complaint in equity in this action and the accompanying Petition for Special Injunctive Relief, it is hereby ORDERED that: 1. Defendants are prohibited from operating the bar/restaurant business, known as "Pete's Cafe". The premises shall be locked. Access by any party must be pre-approved by counsel for all of the aforementioned parties. 2. Defendants shall immediately tender for safe keeping the liquor license (Pa. L.C.B. license # R-15960 and TR-15960) to the Pa. Liquor Control Board; 3. shall be appointed as supervisor for the corporate affairs of McDunks, Inc. and to act as receiver to handle the financial affairs of the company. 4. A meeting of the shareholders of McDunks, Inc. shall be held within _ days of this Order for election of officers and a vote shall be taken on the issue of transfer of the liquor license to Plaintiff, FernRock-Snyder, Inc., in accordance with the terms of the lien created pursuant to the Asset Purchase Agreement; 5. Defendants shall pay all necessary taxes and insurances as required pursuant to the Asset Purchase Agreement and the Installment Sales Agreement within _ days of this Order. - , , , " "-",'- ,""~,._""';-'_o , __,' _~,_ _ .0-,,'" "'"'_ _,;. ",0 '~_' ,L-__j~i""-__,-,,,,'" -<-~'-_;,L,:",__il'<~" ,,',~ L~ " I- .. , -\ " ~ '" ~,-,,~, "~'- I "' . /i ,l. Jf. . 6. Defendants shall ensure that the property located at 401-403 Market Street, New Cumberland, Pennsylvania is cleaned and maintained throughout litigation on these Agreements. Defendants shall provide access to Plaintiffs of the entire property for inspection purposes immediately after the issuance of this Order and every seven (7) days thereafter until the full resolution of this matter. 7. Defendants are prohibited from making any further structural changes or causing structural damage to the real estate located at 401-403 Market Street, New Cumberland, Pennsylvania; 8. Defendants are further enjoined a(ld prohibited from removing, transferring or otherwise dissipating any assets identified under either the Asset Purchase Agreement, the Installment Sales Agreement, or the Sheriff's levy; 9. Defendants shall post a bond in the amount of Two Hundred Thousand Dollars ($200,000.00) which represents outstanding payments due under the Agreements and to secure future payments; 10. Defendants show cause before this Honorable Court on the day of 2001, at .M. in Courtroom No. _ in the Cumberland County Courthouse, One Courthouse Square, Carlisle, Pennsylvania, why a permanent injunction should not be issued, providing the relief requested by Plaintiffs; and 11. Plaintiffs shan cause copies of this Rule to Show Cause, the Complaint in Equity, and the Petition for preliminary Injunctive Relief with its accompanying papers, to be served upon all parties in interest at least _ days before the date of the hearing. J. ..u . LN[[._.. ""C",'. --: ._"'-~ . . ~' " ... ~ .9 . Barbara Sumple-Sullivan, Esquire Supreme Court #32317 549 Bridge Street New Cumberland, P A 17070 (717) 774-1445 FERN L. WILSON and FERNROCK-SNYDER, INC., Plaintiffs : IN THE COURT OF COMMON PLEAS : CUMBERLAND COUNTY, PENNSYLVANIA v. : NO. McDUNKS, INC., IRA J. McMANUS, JR, LESLIE J. McMANUS, KAREN L. DUNKLE, and THE ESTATE OF JAMES R. DUNKLE, Defendants : In Equity PR'fI'fION FOR SPRCIAI, INJUNC'fIVR RRLIRF AND NOW, this I~ay of June, 2001, Plaintiffs Fern L. Wilson and FernRock- Snyder, Inc., through their counsel, Barbara Surnple-Sullivan, Esquire, petitions this Honorable Court for the issuance of Preliminary Injunctive Relief pursuant to Pa. RC.P. No. 1531, and in support thereof alleges as follows: 1. Plaintiffs Fern L. Wilson and FernRock-Snyder, Inc. filed a verified Complaint in equity with the prothonotary of this Court simultaneously with the filing of this Petition, a true and correct copy of which is attached as Exhibit "A" and incorporated by reference herein. 2. Plaintiffs petition this Court pursuant to Pa. RC.P. 1531 to enter a special injunction against Defendants McDunks, Inc., Ira J. McManus, Jr., Leslie J, McManus, Karen L. ." ". " ',--- , ,--~ " l . ,., ;,-, ,",\0." ~"" _ _~', ,,:;;.. . ,"''' _~___ -''-'--' ~>:->i" .... -j,,',; ,. ~,--) --;""-,;;"'i~ ,. , , ~. .. '~-J,~_,. -- -, ,_ , ,,_:1. )- J Dunkle and the Estate of James R. Dunkle, in the form in the attached proposed order and for the reasons set forth in the accompanying verified complaint filed with this petition. Respectfully submitted, Dated: b r/Y ~/ Barbara Sumple-SulIivan, Esquire Attorney for Plaintiffs 549 Bridge Street New Cumberland, PA 17070-1931 (717) 774-1445 Supreme Court I.D. No. 32317 -2- - ,,-c=' - ~~ . ~ d , ,'-T '-'0: . ~n . ",-,1 :;'" ,;..'L;'- ~' '~".". <,' , J .. EXHIBIT nAn ,:; ;,;-<",1..;,",,' J;.i~~ ,,-:;,'''-'<:;kY; , . "'c'_:"--'-"- - -""""-~--' '~~j-:- ?j -' ,- -" ~ -'if ,~, L'. ," " - <<., - ,J..' -,,_lee , ""-. ~,,- , .,.. , ., . .. . . Barbara Sump1e-Sullivan, Esquire Supreme Court #32317 549 Bridge Street New Cumberland, P A 17070 (717) 774-1445 FERN L. WILSON and FERNROCK-SNYDER, INC., Plaintiffs : IN THE COURT OF COMMON PLEAS : CUMBERLAND COUNTY, PENNSYLVANIA v. : NO. McDUNKS, INC., IRA J. McMANUS, JR., LESLIE J. McMANUS, KAREN L. DUNKLE, and THE ESTATE OF JAMES R. DUNKLE, Defendants : In Equity NOTICE You have been sued in court. If you wish to defend against the claims set forth in the following pages, you must take action within twenty (20) days after this complaint and notice are served, by entering a written appearance personally or by attorney and filing in writing with the court your defenses or objections to the claims set forth against you. You are warned that if you fail to do so the case may proceed without you and a judgment may be entered against you by the court without further notice for any money claimed in the complaint or for any other claim or relief requested by the plaintiff. You may lose money or property or other rights important to you. yOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER OR CANNOT AFFORD ONE, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW TO FIND OUT WHERE YOU CAN GET LEGAL HELP. CUMBERLAND COUNTY BAR ASSOCIATION 2 LIBERTY AVENUE Carlisle, Pennsylvania 17013 (717) 249-3166 - ),.-- ~",L-_. ,-. .,.' , I .... Barbara Sumple-Sullivan, Esquire Supreme Court #32317 549 Bridge Street New Cumberland, P A 17070 (717) 774-1445 FERN L. WILSON and FERNROCK-SNYDER, INC., Plaintiffs : IN THE COURT OF COMMON PLEAS : CUMBERLAND COUNTY, PENNSYLVANIA v. : NO. McDUNKS, INC., IRA 1. McMANUS, JR., LESLIE J. McMANUS, KAREN L. DUNKLE, and THE ESTATE OF JAMES R. DUNKLE, Defendants : In Equity COMPLAINT FOR EQIDT ABLE RELIEF, PRELIMINARY INJUNCTION AND SPECIFIC PERFORMANCE THE PARTIES: I. Plaintiff is Fern L. Wilson, an individual residing at 68 Cumberland Road, Lemoyne, Cumberland County, Pennsylvania 17043. 2. Plaintiff is FernRock-Snyder, Inc., a Pennsylvania corporation with offices at 68 Cumberland Road, Lemoyne, Cumberland County, Pennsylvania 17043. 3. Defendant is McDunKs, Inc" a Pennsylvania corporation, with offices at 3806 Hearthstone Drive, Camp Hill, Cumberland County, Pennsylvania 17011. 4. Defendant is Ira J. McManus, Jr., an individual residing at 824 Kings Highway, Mickleton, New Jersey 08056. " -~ ., , , L.;' ., ,.~~",-, .t, , ,- , ,~- , ,.- ~>, .,.. , ' ,. t.. 5. Defendant is Leslie 1. McManus, wife ofIra 1. McManus, Jr., an individual residing at 824 Kings Highway, Mickleton, New Jersey 08056. 6. Defendant is Karen L. Dunkle, wife of James R. Dunkle, an individual residing at 3806 Hearthstone Road, Camp Hill, Cumberland County, Pennsylvania 17011. 7. Defendant is the Estate of James R. Dunkle. Mr. Dunkle died on or about May 4,2001. BACKGROUND OF COMPLAINT: 8. This action arises out of a series of events incident to the execution of two (2) Agreements, an Installment Sales Agreement for real estate and a Purchase Agreement for assets used and useful for operation of a bar/restaurant. The trade name transferred was "Pete's Cafe" and the location of the real estate is 401-403 Market Street, New Cumberland, Cumberland County, Pennsylvania 17070. THE INSTALLMENT SALES AGREEMENT 9. On or about April 1, 1999, Plaintiff Fern L. Wilson had entered into an Installment Sales Agreement to sell certain real estate located at 401-403 Market Street, New Cumberland, Cumberland County, Pennsylvania to Defendants, James and Karen Dunkle and Ira and Leslie McManus. 10. Pursuant to the Installment Sales Agreement, the purchase price of the real estate was -2- ~ ,j.. "1 ,.','.le,--,-' , 1''-. ,-""-"" -.-d '-,-, "'if&. .,.. , ' ~ . Two Hundred Ninety-Five Thousand Dollars ($295,000.00). Thirty Thousand Dollars ($30,000.00) of said sum was paid at the time of the closing. The principal sum of Two Hundred Sixty-Five Thousand Dollars ($265,000.00) was to be amortized over a twenty (20) year period with interest at the prevailing applicable federal rate (mid term) but not less than 5.25%. The payment was to be paid in eighty-four (84) equal monthly installments of One Thousand Seven Hundred Eighty-Five Dollars and 69/100 ($1,785.69) with a balloon due on the eighty-fifth (85th) month due in the amount of Two Hundred Two Thousand Four Hundred Sixty-Eight Dollars and 41/100 ($202,468.41). A copy of the April I, 1999 Installment Sales Agreement is marked as Exhibit "A", attached hereto and incorporated by reference herein. 11. The building at issue has been recently assessed by Cumberland County Tax Assessor's Office of having a value of Two Hundred Eighty Thousand Eight Hundred Thirty Dollars ($280,830.00). A copy of the Assessment is attached hereto as Exhibit "B" and incorporated by reference herein. 12. Defendants had made the payments after the June, 1999 settlement for the period of July, 1999 to July, 2000 and then ceased making the payments, although not always timely or with appropriately tendered checks. During that time period, the principal of the amount due on the Installment Sales Agreement was paid down Nine Thousand Two Hundred Nineteen Dollars and 54/100 ($9,219.54), leaving a balance due and owing of Two Hundred Fifty-Five Thousand Seven Hundred Eighty Dollars and 46/100 ($255,780.46). -3- , "' >-_. "__'bl, ;;- 1"0 '-'_'in.-'" n'lk,';:" , , , , ' ... ' 13. Defendants ceased to make the required payments beginning in August, 2000 and represented financial difficulties. After repeated promises to make payments in response to Plaintiffs' demands for payment, and after receipt of checks which bounced, Plaintiff, Fern L. Wilson, filed a Complaint to Confess Judgment for Possession of Real Estate on October 3, 2000 in the Court of Common Pleas of Cumberland County to Docket Number 2000-6778. 14. In response to the filing to the Complaint to Confess Judgment for Possession of Real Estate, Defendants timely filed a Petition to Open Judgment raising as a defense, on or about November 1,2000, that Defendants were defrauded in the transaction averring that the value of the assets or income of the business were exaggerated and certain alleged business practices used by in operation of the business were not disclosed in the negotiations of the transactions. 15. The Court, after oral argument, issued a rule on the Plaintiff to respond to the allegations, which answer was filed on February 28, 2001. A schedule of discovery is ongoing with depositions scheduled for Monday, June 18,2001 and continuing on June 19,2001. Briefs are due on June 25, 2001 and oral argument on the Petition to Open Confessed Judgment is scheduled for July 2, 2001 at 8:30 a.m. before the Honorable 1. Wesley Oler, Jr. 16. Pursuant to the Order dated April 12, 2001 ina companion case designated as FernRock- -4- ~~~ J ;,.) ~-~ ~ - .J 1&<,';"',;..,' . , , , , ' ~ Snyder, Inc. v. McDunks, Inc. Ira J McManus, Jr , Leslie J McManus, James R Dunkle, and Karen L. Dunkle, the Court appears to consolidate these cases for discovery and argument. A stay was issued in the Order under caption Docket Number 2000-6777, the exact impact on this docket number is not clear. 17. Defendants have continued to utilize the premises for operation of a bar/restaurant and have individuals residing in the rental apartments in the premises. 18. Despite the fact that Defendants continue to use the property, only Three Thousand Dollars ($3,000.00), has been remitted in payment despite the monthly rental obligation of One Thousand Seven Hundred Eighty-five Dollars and 69/100 ($1,785.69) pursuant to the Installment Sales Agreement. 19. Despite representations to do so and repeated breaches, Defendants have not relinquished their use of the property or possession to the legal owner, Plaintiff Fern L. Wilson. THE ASSET PURCHASE AGREEMENT 20. On or about April 1, 1999, Plaintiff, FernRock-Snyder, Inc. and Defendant, McDunks, Inc. entered into an Asset Purchase Agreement for sale of certain assets used and useful in operation ofa bar/restaurant known as "Pete's Cafe". The Agreement specifically identified the assets transferred which included a Pennsylvania Liquor License, personalty, goodwill and oTher intangibles. A copy of said Agreement is marked as Exhibit "C", attached hereto and incorporated by reference herein. -5- __oj ~---~'1'''~,-,' ~~ ,-",.l ,.1" ." __ __"T' ~)w" , , , . 21. The purchase price of the Asset Purchase Agreement was One Hundred Thirty Thousand Dollars ($130,000.00), payable Fifteen Thousand Dollars ($15,000.00) at the time of closing and the remaining One Hundred Fifteen Thousand Dollars ($115,000.00) amortized over a twenty (20) year period at the applicable federal rate (mid term) with a balloon payment of Eighty-Seven Thousand Eight Hundred Sixty- Three Dollars and 68/100 ($87,863.68) on the eighty-fifth (85th) month. The interim eighty-four (84) equal installments were due on the first day of every month in the amount of Seven Hundred Seventy-Four Dollars and 92/100 ($774.92). 22. Defendant McDunks, Inc. made monthly payments, although not always timely or with appropriately tendered checks, for the period of July, 1999 through July, 2000, which reduced the outstanding principal balance by Three Thousand Nine Hundred Fifteen Dollars and 24/100 ($3,915.24) to One Hundred Eleven Thousand Eighty-Four Dollars and 76/100 ($111,084.76). 23. Defendants ceased to make payments beginning August, 2000. After repeated promises to make payments in response to Plaintiffs' demands for payment and after receipt of checks which bounced, Plaintiff, FernRock-Snyder, Inc. filed a Complaint for Confession of Judgment for money damages in the Court of Common Pleas of Cumberland County to Docket Number 2000-6777 on October 3, 2000. 24. Because the individuals James and Karen Dunkle and Ira and Leslie McManus had also -6- , , " ,', ." - ','.- . ~ " ii:~, ' - -"J. ','-,-, ',,-- -,--,,"-,.- nJf, , '. , . personally guaranteed the obligations of the Defendant McDunks, Inc., of which corporation they are all sole shareholders, the money judgment was also confessed against them. 25. No petition to open was timely filed in this matter. 26. Presently owing under the confession of judgment is the sum of approximately One Hundred Twenty-Seven Thousand Three Hundred Sixty-Seven Dollars and 66/100 ($127,367.66), which represents the principal balance due of One Hundred Eleven Thousand Eighty-Four Dollars and 76/100 ($111,084.76), late charges of Three Hundred Eighty-Four Dollars and 75/100 ($384.75), interest charges of Four Thousand Three Hundred Fifty-Eight Dollars and 00/100 ($4,358.00) and confession fees of Eleven Thousand Five Hundred Seventy-Six Dollars and 15/100 ($11,576.15). 27. Plaintiff had executed on the judgment and levy was made on all property located at the premises, including the liquor license on January 18, 2001. A Sheriff s sale date was pending. 28. Petitions to Open the Judgments were then filed four months after the Petition, on or about April 2, 200 I by counsel, Samuel Andes, Esquire, on behalf of Defendants James and Karen Dunkle and by counsel, Lee Applebaum, Esquire, on or about AprilS, 2001 on behalf of Defendants Ira and Leslie McManus. -7- 0,= ,o'.,.'; '0_ ,_, ~-- -, - ";/;"..,, , ''',- 1 mtt' . ~ 29. Plaintiffs contend that these Petitions were untimely since they exceeded the thirty (30) day period following the filing of the judgments. 30. Despite the untimely nature of Defendants' Petitions, the Honorable J. Wesley Oler, Jr., by Orders dated April 12, 2001 and April 23, 2001, reserved the issue for later determination. Said Orders then consolidated the two actions for discovery purposes and stayed all pending execution proceedings, and developed a schedule for discovery, briefs and oral arguments. 31. The stay of the proceedings terminated the Sheriff s sale which was scheduled for May 23, 200 I. 32. The time deadlines for the discovery have been disrupted because of the sudden and unexpected death of Defendant James Dunkle on May 4,2001. A Suggestion of Death was filed to the record on May 8, 2001, but no estate has yet been opened. 33. Defendant McDunks, Inc., through its agent Defendant Karen Dunkle, has intermittently operated the bar/restaurant since the time of her husband's death. PRESENT CIRCUMSTANCES: 34. Of the principal amount due on both original contracts of Four Hundred Twenty-Five Thousand Dollars ($425,000.00) after closing, Defendants have paid only a nominal sum of Sixty Thousand One Hundred Thirty-Four and 78/100 ($60,134.78) or -8- .,.i~=' . ~=" , ". -1- '.; ',-'. -'.;, '. ',n, "Slow,,-,: > , k 13.67%. Yet, Defendants continue to fully possess and deny Plaintiffs access to payment or return of the assets due to allegations of fraud and misrepresentation, which allegations are and have been denied by the Plaintiffs. 35. It is further asserted that even if the representations were proven to be true and the judgments opened, Defendants would be required to pay the value of the assets actually received as rnitigated by the alleged fraud. Given the values attributed to the building alone by the tax assessment and the value of the hard assets acquired (liquor license of approximately $70,000.00 and personal property of $30,000.00), which assets have been in the possession and use of the Defendants since June of 1999, any sums due will far exceed the amount paid even after set off. 36. Plaintiffs have suggested recission and return of the assets transferred with further litigation to proceed on a determination of mutual and actual damages for all parties at a subsequent date. This has not occurred. 37. The continued holding of the assets by the Defendants, coupled by the reckless care and dissipation of the assets during this interim time, is causing irreparable harm to the interests of the Plaintiffs. Evidence of dissipation is as follows: a) Lack of Insurance Coverage: 38. Pursuant to paragraphs 13 and 14 of the Installment Sales Agreement, Defendants were to provide Four Hundred Twenty-Five Thousand Dollars ($425,000.00) property -9- ,,0 I." . ,^,- ',:--.., J , -,;1' .,' ':~'. '. ;i<: _,,:;__.,,"'~,~ ~ ",-~.__" '. ", . , .. insurance and One Million Dollars ($1,000,000.00) in general liability insurance, naming Plaintiff Fern L. Wilson as an additional insured. 39. For the period believed to be February, 2000 to July, 2000, Defendants had failed to carry the necessary or contractually mandated insurance on the property. Only after threat of default was insurance instituted. 40. Plaintiffs have been attempting to verifY the existence of coverage on the building and business on a periodic basis. Present coverage has not yet confirmed since the policy is paid monthly. It is known that the existing policy will expire on July 18, 200 I. b) Property Taxes: 41. Pursuant to paragraph 8 of the Installment Sales Agreement, Defendants were to pay all real estate taxes and provide proof of payment. 42. Defendants did not pay the taxes on time for tax year 2000 and only after threat of default, were these then satisfied in late January, 2001. 43. Presently, Defendants have not paid 2001 property taxes. The county and borough tax of Nine Hundred Forty-Nine Dollars and 76/100 ($949.76) due on June 30, 2001 remain unpaid, as well as the school taxes of Two Thousand Seven Hundred Fifty-Two Dollars and 13/100 ($2,752.13). -10- ~~ ~ ~ ,""'L, ._;'l -- ,.'~.'l -':'-;;'ci.- ,.,- . , ;., ,'", ,,-," l}i.~~ . , . c) Liquor License: 44. Defendants have also jeopardized a Pa. L.C.B. license # R-15960 and TR-15960, the major asset purchased by the Asset Purchase Agreement, through their operation of the business. 45. Said license is under strict regulation by the Commonwealth of Pennsylvania and may be subject to complete forfeiture in the event of improper operation or other cited deficiencies. 46. Since the entry of the default, Plaintiffs have determined that numerous violations and citations have been issued against the license. Some of these have occurred because of the Defendants' tender of checks for insufficient funds for liquor items. A fine for one of these citations of$75.00 continues to be outstanding and was due on May 31, 2001. This continuing condition has jeopardized the existence of the license. Another recent citation, #01-1120, was filed on June 13,2001 but the reason for same is unknown. 47. Said actions constitute another default of the Asset Purchase Agreement, paragraph 5.1(d) since Defendants have failed to pay all fees and charges required by the Pa. L.C.B. and have had frequent citations sufficient to place the license in jeopardy of revocation. 48. It is believed and averred that Defendants have allowed persons untrained in bartending and cooking to operate the business, thus further increasing the likelihood of a liability producing event, such as a dram shop action, to occur and forfeiture or further citation -11- " , _J.'__, ~" "., "~i-_ :,: ---,,~-- >, ,',_iJ-,, , "' ""--' ... ~ " , against the liquor license. 49. The continued operation of the business in this state is causing irreparable harm to the good will of the business transferred. 50. Since the death of James Dunkle, the business has operated on an intermittent basis, potentially in violation of the Pa. L.C.B. licensing requiring regulations which requires the license to be tendered for safekeeping if any establishment is closed for a period in excess of fifteen (15) consecutive days. 51. Plaintiffs' counsel has learned, through statements made by counsel retained by Defendant Karen Dunkle to represent her in a bankruptcy filing, that it is her intention to close the business as of Saturday, June 16,2001 and no guarantee has been made that the license will be placed in safekeeping so as to ensure it is not forfeited. 52. It is also understood that the bankruptcy of Defendant Karen Dunkle may be filed as soon as the day set for the convening of her deposition in the matters presently pending before this Court at Docket Numbers 2000-6777 and 2000-6778, which are scheduled for Monday and Tuesday, June 18th and 19th, 2001. d) Structural Damage to Premises: 53. Defendants have and continue to cause structural damage to the building. Their actions have resulted in the following damages to date: -12- >-c"" ~ , " ,'1-, ~- . .;. ,,' ~"., - -,'-.... ,. " ,,_,Il ,"- . A. Need for numerous repairs throughout the premises. A complete itemization is contained in Exhibit "D" attached hereto and incorporated by reference herein. B. Need for extensive cleaning due to the filthy condition of the establishment, which condition raises the further possibility of health ordinance violations. C. Need for repair of damage to the HV AC and refrigeration systems. Attached Exhibit "D" contains an itemized estimate for repair from Advanced Contracting Services, Inc. D. Structural damage to the apartment. At the time of the transfer of the real estate to Defendants, there were two apartments on the second floor of the premises which Plaintiff had rented out. After the transfer, one of the apartments is in use by Defendant Karen Dunkle's daughter. The other apartment is in complete shambles. Work was started but never completed. Debris is everywhere. The kitchen and bathroom are non-functioning with fixtures missing (toilet and sink). Attached to Exhibit "D" is an itemized estimate for the repair of this apartment from Creative Construction totaling Seventeen Thousand Four Hundred Eight Dollars ($17,408.00). 54. Such actions are in clear violation of paragraph 12 of the Installment Sales Agreement which require the premises to be kept in good repair, order and condition. Said paragraph further prohibits any undertaking of demolition or structural alteration and improvement without the written consent of Plaintiff, Fern L. Wilson. 55. Plaintiff, Fern L. Wilson is without full right to inspect the property since she has been precluded from same despite her expressed right to so inspect pursuant to paragraph 16 of the Installment Sales Agreement PERSONAL TV REMOVAL: 56. Plaintiffs have determined that, despite the levy by the Sheriff, items of personalty levied upon are being removed from the premises in violation of the levy and the terms of -13- ,-. ~1-.ru.<,,;.<: C.~~~~"~.." ~ , t).1 c_~,:"" " - ,,_ , _" .'"" "' _cjOle _" - ,- ;. ,~",-,-,-;- . -.4,..'Ltr:.",-'f_ . paragraph 12 of the Installment Sales Agreement. CORPORATE FAILINGS: 57. It has also been determined that the Defendant corporation may have claims or liens against it for non-payment of state and federal taxes (including income, payroll and withholding), worker's and unemployment compensation taxes, which might cause forfeiture of or impact the assets of the corporation, including the liquor license. 58. Since the death of James Dunkle, there has been no election of officers and Defendant, McDunks, Inc. is without a President. 59. Pursuant to paragraph 3.2 of the Asset Purchase Agreement, Plaintiffs have a lien on all issued and outstanding stock of Defendant McDunks, Inc. and are entitled to vote same in the event of the default. 60. Plaintiffs desire to effectuate, pursuant to this authority, the right to vote transfer the liquor licence into safekeeping and commence the transfer back to the ownership of FernRock-Snyder, Inc. so as to avoid forfeiture of this asset while in the hands of the Defendants, which action will result in irreparable harm. 61. Actions toward potential closing of the business have not been placed for vote at any appropriate shareholders' meeting, denying Plaintiff, Fern L. Wilson, her right to vote her shares on this issue. -14- <'-~ ...I '-j,' c'--il _' =J, " ~ "": -~~~""'#'f' 62. Plaintiffs will incur irreparable harm due to the actions of the Defendants in their handling of the assets. WHEREFORE, Plaintiffs request this Honorable Court grant the following injunctive and specific performance: 1) Issue an injunction prohibiting the operation of the business and requiring the license to be placed in safekeeping; 2) The appointment of a supervisor for the appropriate handling of the corporate affairs ofMcDunks, Inc. and to grant a receiver to handle the financial affairs of the company. This shall include convening a meeting of the shareholders for election of officers and to require a vote to be taken on the issue of transfer of the liquor license to Plaintiff, FernRock-Synder, Inc., in accordance with the terms of the lien created pursuant to the Asset Purchase Agreement; 3) Award specific performance of the Agreements to Plaintiff requiring Defendants to pay as required under the Agreements, all necessary taxes and insurance coverage, as well as to maintain the property; 4) Prohibiting any further structural changes to the property or damage to the real estate; 5) Issue an injunction to prohibit the dissipation of the assets, as well as to prevent the removal of the items of personalty from the premises; 6) Require Defendants to post a bond to secure the past year of payments under the Agreements and to secure future payments due; and 7) Any other equitable relief deemed appropriate. Dated: June Ii, 2001 B,arbara Sumple-Sullivan, Esquire 549 Bridge Street New Cumberland, P A 17070 (717) 774-1445 Supreme Court LD. #32317 Attorney for Plaintiffs -15- .. c:iJ .~ . EXHIBIT ~ ~; ,*' ,-" "A" - - ~,;;, ,~ . , "l .-'r.--"_.c. " -'"'~. . .-- - - , ' w"", - 1;- -- " ,~,_"~____",,, ,0-' "o~._,.-' - >,.;,,,,-.-, ~ 0'. l' ...) , , , Th 'I r r ;, '\-" ,- , INSTALLMENT SALES AGREEMENT THIS AGREEMENT made tbis / 6r day of II PI< I L , 1999, by and between FERN L. WILSON, of New Cumberland, Cumberland County, Pennsylvania (hereinafter referred to as "Seller") and IRA J. McMANUS, JR. And LESLIE J. McMANUS, bis wife, ofMalaga, New Jersey and JAMES R. DUNKLE and KAREN L. DUNKLE, bis wife, of Camp Hill, Pennsylvania (hereinafter referred to as "Buyers"). WITNESSETH: WHEREAS, Seller is presently the owner of a certain parcel of real estate known as 401-403 Market Street, New Cumberland, Cumberland County, Pennsylvania (hereinafter referred to as the "Premises"), wbich premises are more particularly bounded and described in Exbibit "A"; WHEREAS, Seller agrees to sell and Buyers agree to purchase said Premises under and subject to the terms and conditions set forth herein; WHEREAS, Buyers are additionally purchasing from FernRock-Snyder, Inc., a Pennsylvania corporation of wbich Seller is the principal, certain assets used and useful in operation of a bar, restaurant and catering business known as Pete's Cafe, wbich Agreement is attached hereto as Exbibit ,. ~ ~_ -........_..J_. I' ~' _ ,,,i. . ." '~"~ -1'- ,; ~.' - ,'r ~t" ->~, -.,' ;"''i--'L--.~' '" ,,__,; , '-;'",";"'~ , ~ (. 1 . " t t "B" and incorporated herein by reference; WHEREAS, purchase of real estate by Buyers pursuant to this Agreement is contingent upon successful consummation of Buyers' purchase of said assets of Pete's Cafe and complete satisfaction of all payments due pursuant to said Agreement attached as Exbibit "B"; NOW THEREFORE, in consideration of the mutual covenants contained herein and intending to be legally bound hereby, the parties hereto, on behalf of themselves, their heirs, successors and assigns, agree as follows: 1. IncOI:poration of Recitals. The recitals set forth in the above whereas clauses are incorporated herein as substantive provisions of the parties' agreement. 2. Real Estate. The Seller agrees to sell and the Buyers agree to purchase all that certain premises situate in the Borough of New Cumberland, Cumberland County, Pennsylvania, as more specifically described in Exbibit "A" attached hereto and incorporated herein by reference. 3. Purchase Price. The purchase price to be paid by the Buyers shall be the sum of Two Hundred Ninety-five Thousand ($295,000.00) Dollars, to be paid as follows: (a) Thirty Thousand ($30,000.00) Dollars upon Closing of the parties' business asset acquisition of Pete ' s Cafe as set forth in Article 10 of the Asset Purchase Agreement 2 --.1.'. ; "'1 "~ '.' .I~ '., ""'1 'C-'. ,." ", eo;__, ;, . ',~, . , . .. . . ~ , . II attached as Exbibit "B". (b) The principal sum ofTwo Hundred Sixty-five Thousand ($265,000.00) Dollars shall be paid in eighty-four (84) equal monthly installments subject to the adjustment as set forth in paragraph (c) hereof Interest shall be at the prevailing applicable federal rate (mid term) at time of Closing but not less than 5.25% amortized over a twenty (20) year period. A balloon payment shall be due for the remaining balance on the first day of the ei~ty-fifth (85111) month following Closing as defined in Article 10 of the Asset Purchase Agreement attached as Exbibit "B". Specifically, assuming an interest rate of 5 .25%: (1) Monthly payments of One Thousand Seven Hundred Eighty-five and 69/100 ($1,785.69) Dollars for eighty-four (84) payments with the first payment being due on the first day of the first calendar month following Closing and on every first day of the next eighty-four (84) months. If any payment is not made by the tenth (10th) day of the month, Buyers shall pay an additional five (5%) percent of the monthly payment due as penalty. Said late charge shall be paid by Buyers to Seller with the monthly installment due and owing. The full balance of Two Hundred Two Thousand Four Hundred Sixty-eight and 41/100 ($202,468.41) Dollars shall be due on the furst day of the eighty-fifth (85th) month following Closing. A copy of the Amortization Schedule is attached hereto as Exbibit "C". (c) Buyers shall have the right to prepay the purchase price. However, said right to prepay is specifically contingent upon Buyers simultaneously satisfying all sums due 3 ~'- ....l .'~ '.' . J "" .0,1. .- ,'" _ 'L': ',..',; ;,.,",,__:;.,! ~ , -.,<,. !' , It ~ .. , I . , and payable pursuant to the Asset Purchase Agreement attached as Exhibit "B". (d) All of the above stated payments are to be made payable to Fern L. Wilson at 68 Cumberland Road, Lemoyne, Pennsylvania 17043 or such other address as Seller may advise.. Should Buyers fail to make the montWy installment payment in full, as provided in the paragraph 3(a) or 3(b) hereof within fifteen (15) calendar days after the same shall be due and payable, then Buyers shall pay an additional five (5%) percent of the payment due as penalty. Said late charge shall be paid by Buyers to Seller with the installment due and owing. 4. Transfer of Title to the Premises. On the payment of the full purchase price, title to the premises shall be conveyed from Seller to Buyers at final settlement. . Final settlement shall occur in accordance with Paragraph 23 of tbis Agreement. Transfer of the real estate shall be by special warranty deed and title shall be free and clear of all liens and encumbrances except those easements and restrictions presently of record, and also subject to any liens or encumbrances wbich Buyers may have caused to be created during the term hereof. Seller, upon the execution of tbis Agreement, shall deliver to the law firm of Barbara Sumple-Sullivan, Esquire ("Escrow Agent") a special warranty deed for the real estate executed by the Seller. Escrow Agent shall accept, take custody of, and keep safely the deed. Upon Buyers' presentment to Escrow Agent of proof satisfactory to Escrow Agent of the payment in full of the purchase price and Buyers' full performance of all other terms and conditions of this Agreement and all conditions of the Asset Purchase Agreement attached as Exhibit "B". Escrow Agent shall deliver to Buyers the deed to the 4 ~~~ '-'~~ - , , ~ .; ~'-' :,,,,:+~- C_"..i-, _:illIM'l"'lilii,,! . , 1. ' , > to . I , premises. Escrow Agent shall not have any duty or obligation to take any action with respect to the collection of any of the indebtedness represented by tbis Agreement or the Asset Purchase Agreement attached as Exbibit "B" or to otherwise act with respect to these Agreements, except that, upon presentment of receipts or other acknowledgment or proof of payments of the obligation hereunder, Escrow Agent shall deliver the deed in its custody to Buyers. 5. Possession of Property. Buyers may enter into possession of the property and continue in such possession for and during the life of this Agreement. Possession shall commence with the satisfactory Closing of the Asset Purchase Agreement attached hereto as Exbibit "B". Buyers shall maintain such premises and all improvements thereon in good repair, and shall permit no waste thereof and shall take the same care thereon as a prudent owner would take. 6. Assignment. Buyers shall make no transfer or assignment of their rights pursuant to this Agreement to any third party without the express written approval of the Seller. Seller may assign its rights under tbis Agreement with notice to Buyer. 7. Municipal or State Improvements. Buyers agree to pay for any and all improvements to the premises done or ordered to be done by any municipality or state authority during the term of tbis Agreement and to comply at their own cost and expense with all notices received from public authorities from and after the date hereof. 8. Taxes and Assessments. Buyers agree to payor to cause to be paid to the 5 I [ ',;' . .,., ,."- - . .:~,1: '-"~"->"'""~"~ .i.t!i.~iittJ;;~ r , " ' . . ~ , , J , appropriate governmental authority as an addition to the purchase price, before they would become delinquent, an amount of money equaJ to all real estate taxes, including township, county, and school taxes, assessments, water rents, sewer rents, and charges and other governmental charges, general and special which are assessed or imposed upon or chargeable against the Premises at any time after the date hereof and thereafter throughout the terms hereof as if the Premises and all improvements thereon were owned by Buyers unless such taxes or assessments are being contested in good faith and Buyers has provided adequate security for the payment thereof pending fina1 adjudication. All property real estate taxes shall be prorated to the date of this Agreement. Buyers shall provide Seller with proof of payment of said indebtedness within fifteen (15) days after the due date for said expense. In the event of Buyers' failure to make said payment on a timely manner, Seller may make the payment on behalf of Buyers and give notice to Buyers of their default pursuant to Paragraph 18 of this Agreement. Failure of Buyers to timely cure said default, if possible, shall result in imposition of remedies reserved to Seller pursuant to Paragraph 19 hereof 9. Prorating of Expenses. Expenses for goods and services such as utilities, sewer, water, delivered prior to Closing shall be paid by Seller and expenses for goods or services delivered after closing shall be paid by Buyer. Proration of same shall occur at the Closing as set forth in Article 10 of the Asset Purchase Agreement attached hereto as Exbibit "B". 1 O. Damage and Condemnation. Damage to or destruction of all or any part of the Premises by fire or any other cause of taking of all or a portion of the Premises by condemnation shall not terminate this Agreement or cause any abatement or reduction in the payments to be made by 6 .- -,1' roo; .. _ c j, " ,- .- '"- ,'i' , j -~-,,"."~.. ~ W " ""Wi' , ' L " . G , . , " , . Buyers or otherwise affect the respective obligations of Seller and Buyers. 11. Proceeds of Insurance or Condemnation. The proceeds of any condemnation proceeding or proceeds of any insurance attributable to any loss or damage to the Premises shall be applied to the purchase price of the Premises damaged or condemned. 12. Improvements. Maintenance. Rt:pairs and Alterations. Buyers agree to maintain the Premises in good repair, order and condition (reasonable wear and tear excepted whether structural or otherwise) and shall pay all other costs and expenses arising out of the occupancy and use of the Premises, but not limited to all public utility charges and utility connection charges. Buyers shall comply with all housing code standards, fire safety or other governmental requirements now in effect or hereafter enacted that involve the subject premises. Buyers will not undertake or permit any demolition or structural alteration or addition or improvement to the Premises without written consent of Seller, which consent shall not be unreasonably withheld. All alterations or additions to the Premises undertaken by Buyers shall become part of the Premises. Buyers shall not remove or permit the removal from the Premises of any building or other improvement located thereon without the written consent of Seller in writing nor shall Buyers commit any waste on the Premises or any building or any improvement thereon. Buyers shall indemnify and hold Seller and the Premises of Seller, including Seller's interest in the premises, free 7 ~,~, ,) .: "~ ~ ;,:,"" ~'-, ,." ~ , i&< , ' , , ' ~ . G , ' , , . and harmless from liability from any and all mechanics' liens or other expenses or damages resulting from any renovations, alteration, buildings, repairs or other work placed on the premises by Buyer. Buyer shall make no material alterations to premises in excess of Five Hundred ($500.00) Dollars without the express written permission of the Seller. 13 . Property. Buyers agree and warrant that they will keep the entire Premises and its contents insured against loss or damage by fire with extended coverage. The aforesaid insurance shall be in an amount of at least 100% of the replacement value, but not less than Four Hundred Twenty- five Thousand ($425,000.00) Dollars. All such policies or any additional fire insurance carried by Buyers on the Premises shall name Seller as additional named insured. Buyers shall provide to Seller proof of coverage on an annual basis. 14. Liability Insurance. Buyers shall provide comprehensive general liability insurance with minimum limits of One Million ($1,000,000.00) dollars. All such policies carried by Buyers shall name Seller as additional named insured. Buyers shall provide to Seller proof of coverage on an annual basis. 15. Indemnification of Seller and Waiver of Claims. Buyers covenant and agree to protect, exonerate, defend and indemnifY and save Seller harmless from and against any and all claims of liability which on or after the date of Closing may arise out of Seller's ownersbip of the Premises thereof and from and against any and all loss, damage, cost or expense or liability based upon personal injury, debt, loss or damage to property suffered or incurred by any person, firm or 8 ,""",,"' J , i~'~-' -,.-,1 _,~"= "'0,," " ,,," -"_-"_<"_' -.~ i:f," , , ' t ' , . '-~. " , . corporation (mcluding the parties hereto) and arising out of or attnbutable to the presence, condition, use, operation, or maintenance of the Premises except when due to the willful misconduct of the Seller. Seller shall give written notice to Buyers of any claims asserted against Seller within ten (10) days time after such claim becomes known to Seller. If such claim is otherwise made known to Buyers, then Seller shall be under no duty to advise Buyers of said claim. In any action or proceeding except for the willful misconduct of Seller, brought against Seller by reason of any claim, Buyers, upon notice from Seller, covenant and agree to resist or defend any such action or proceeding and to provide legal counsel, at Buyers' cost, for defense of any such claim. Seller agrees to cooperate and assist in the defense of any such action or proceeding if reasonably requested to do so by Buyers, at Buyers' expense. Buyers further agree to indemnify and hold Seller harmless from any and all costs (including attorney fees and costs) associated with defense of any claim or cause of action including all costs and expenses, including attorney fees, for enforcement of this indemnification. 16. Inspection. Buyers will at all times provide Seller with reasonable access to the Premises for the purpose of inspection or view of the Premises. 17. Recording A Memorandum of Sale can be recorded by either party. 18. Events of Default. Each of the following events is hereby defined as and is declared to be constituted as an event of default: ( a) Failure by the Buyers to make the payments required to be made hereunder as part of 9 "'- '" '" ~ ')., -I iMJ;lI"""; , ,> , ' , , . " " , . the purchase price within thirty (30) days after the same is due; or (b) Failure by the Buyers to observe and perform any other covenant or condition or agreement on their part to be observed or performed under tbis Installment Sales Agreement for a period of thirty (30) days after written notice specifying such failure and requesting that it be remedied, given to the Buyers by the Seller or her agent; or ( c) If any of the Buyers shall file a voluntary petition in bankruptcy or make an assignment for the benefit of creditors or failure by the Buyers to contest any execution, garnishment or attachment as will impair its ability to carry out their obligation under this Agreement, or the commission by the Buyers as a bankrupt, or the entry by the Buyers into an agreement or composition with their creditors; or the approval of a Court of competent jurisdiction of a petition applicable to the Buyers in any proceeding for a consolidation of creditors under the provision of the general Bankruptcy Act, as amended, or under any similar act wbich may hereafter be enacted which is not dismissed within sixty (60) days. (d) Having occur any act or omission by Buyers wbich is deemed to be a default pursuant to Article 5 of the Asset Purchase Agreement attached hereto as Exbibit "B". 19. Remedies on Default. Whenever any event of default referred to herein shall have happened and be existing, anyone or more of the following remedial steps may be taken: 10 - , , _ ~-i -- J,- ",,,,_,,0 - 'ilii:Mi~~i ~ (( (~., J ( I , .' , . . (a) SeIler may perform for the account of Buyers any covenant or obligation in the performance of wbich Buyers are in default, in which event, Buyers shall immediately pay to Seller all amounts paid by Seller, together with reasonable counsel fees, as well as with interest at the rate often (10%) percent per annum from the date of payment by Seller. (b) Seller may declare all sums which Buyers are obligated to pay to Seller pursuant to this Agreement, together with interest accrued thereon, immediately due and payable in full. IN SUCH CASE OF DEFAULT, BUYERS HEREBY AUTHORIZE AND EMPOWER ANY ATTORNEY OF ANY COURT OF RECORD IN THE COMMONWEALlH OF PENNSYLVANIA OR ELSEWHERE TO APPEAR FOR BUYERS AND CONFESS A JUDGMENT FOR THE ENTIRE PRINCIPAL SUM AND INTEREST REMAINING UNPAID THEREON, WIlH TEN (10%) PERCENT ATTORNEY'S COMMISSION OR FEES, HEREBY WAIVING THE ' RIGHT AND EXEMPTION AND INQUISITION, SO FAR AS THE PREMISES HEREIN DESCRIBED, AND ANY PROPERTY OR BUILDING THEREON MAY BE CONCERNED. Buyers hereby irrevocably authorize and empower any attorney of any Court of record of Pennsylvania or elsewhere to appear for and confess judgment against Buyers for all amounts for which Buyers may be or become liable to Seller or her assignee under this Agreement, as evidenced by an affidavit signed by an agent of 1 1 ., ~ - ,-" '<" , " J ,-1- '-;h~--' '_"~.';''' '"" -"=o;;~- - ~-k!I'~ . . ( ,~ l l , , , , ' . Seller or of assignee setting forth the amounts then due plus ten (10%) percent thereot; as an attorney's fee, with costs of suit and release of errors. Such authority shall not be exhausted by anyone exercise thereof but judgment may be confessed as aforesaid from time to time as often as there is a default hereunder. ( c) Seller may terminate this Agreement and resell the Premises at a private or public sale and Seller will apply the monies collected under such resale, to any amounts outstanding hereunder. Buyers shall remain liable for any deficiency after the application of the proceeds. If such proceeds are in excess of the amount required to satisfy the total due from Buyers to Seller under the terms of this Agreement, then the proceeds shall be used first to reimburse Seller the costs of sale and collection, including counsel fees of ten (10%) percent. Any remainder after said reimbursement shall then be tendered to Buyer. (d) Seller may declare this Agreement to be null and void and enter into possession of the Premises and retain all sums paid hereunder to the date of default as liquidated damages. (e) Seller may proceed by action of ejectment on tbis Agreement after default for recovery of said premises; in such case, BUYERS HEREBY AUTHORIZE AND EMPOWER ANY ATTORNEY OF ANY COURT OF RECORD IN THE COMMONWEALTH OF PENNSYLVANIA, OR ELSEWHERE, TO APPEAR 12 ~~.J. " ';, " ,,, 0 ;"L" ","" , ~ " ,'^' """""". . . , . . I 1 ~ (. I' I , f, , . " , FOR BUYERS AND CONFESS JUDGMENT OF EJECTMENT, AND AUTIIORIZE THE IMMEDIATE ISSUING OF A WRIT OF POSSESSION AND EXECUTION (WITIIOUT ASKING LEAVE OF COURT) FOR THE COSTS AND TEN (10"10) PERCENT ATTORNEY'S COMMISSION OR FEES, WAIVING ALL STAY AND EXEMPTION LAWS. The Buyers hereby waive and release all errors, defects and imperfections whatsoever of a procedural nature in the entering of any judgment or any process or proceedings arising out of tbis Agreement. Buyers also waive the benefit of any laws wbich now or hereafter might authorize the stay of any execution to be issued or any judgment recovered hereunder or the exemption of any property from levy or sale thereunder. (f) The Buyers agree to execute a quitclaim deed with the same to be held by the law firm of Barbara Sumple-Sullivan ("Escrow Agent"), and to be delivered to Seller upon default by Buyers of the obligations of this Agreement which have not been cured within the time limitations specified herein. Seller is authorize to record said quitclaim deed in the event of default to ensure no record or claim of title shall exist. (g) Take any and all other actions available to Seller at law or equity. 20. Cumulative Rights. No right or remedy herein conferred upon or reserved to Seller is intended to be exclusive of any other right or remedy herein or by law provided, but each shall be 13 ",0- _I j' I' --, ;" ,,; - ~~. - ' _L . '" ;-- ';",~ \ ;. "- 1- l'~ iii f ( . , , cumulative and in addition to every other right or remedy herein given or now or hereafter existing at law or in equity or by statute, and may be pursued singly, successively or together at the sole discretion of Seller and may be exercised as often as the occasion therefor shall occur. 21. Realty Transfer Tax. Any realty transfer tax or taxes imposed upon the transfer of the real estate shall be divided equally between the Buyers and Seller at Final settlement as set forth herein in paragraph 23. 22. Seller's Warranty. Seller warrants that no notice of any governmental authority has been issued or served upon the subject property or any occupancy thereof or upon the Seller or agents of Seller prior to the signing of this Agreement calling attention to any violation of any building, fire, safety or other ordinance or requirement or calling attention to the need of any curbing, recurbing, paving, repaving or other construction or improvement on or about the subject premises or removal of any nuisance. There are no lawsuits pending or anticipated against Seller that involve the subject real estate. No municipal or other governmental improvements affecting the subject premises are, as of the date oftbis Agreement, in the course of construction or installation and to the best of the knowledge of Seller, no such improvements have been ordered to be made. 23. Environmental Warranty. No hazardous waste, hazardous or toxic materials or wastes or products regulated by any law or ordinance have been stored, treated at or disposed of by Seller on the real property, and, to the best of Seller's knowledge, have never been stored at, treated, or disposed of on the real property by Seller or by any other individual or entity. No asbestos or 14 ""' 8-""~1-'- ,-. , , . . . .- , ,.,,' .'. ','-. 'r'"h. ;,.;.;.L., --c" ' ~ .w. . 'It ~ ~ , II! I' " , r , , " , asbestos products or materials or polychlorinated biphenyls or urea formaldehyde insulation have been stored at or disposed of on the real property. Neither the property, nor the use or operation thereof by Seller, or any tenant of the property, (I) violates, or is alleged by any person or entity to violate, or is not in compliance, or is alleged by any person or entity not to be in compliance, with any land use, environmental, hazardous material, and! or waste handling, storage, treatment, disposal or discharge laws or other laws, building codes, zoning or other ordinances, rules or regulations, fire insurance regulations, state labor department regulations, or covenants, conditions and restrictions whether state, federal, local or private; and (ii) there has not occurred, nor has any person or entity alleged that there has occurred, upon the property, nor any parcel, any spillage, leakage, discharge or release into the air, soil or ground water of any hazardous materials or regulated waste. 24. Final Settlement. It is agreed by and among the parties hereto that final settlement shall be held on the eighty-fifth (85th) month anniversary of Buyers' execution of this Agreement, or earlier, if Buyers exercise their right of prepayment, subject to the extensions permitted under paragraphs set forth above. TIME SHALL BE OF THE ESSENCE. Seller agrees that, at the time of fina1 settlement, Seller will furnish Buyers, upon payment of the principal and interest and balance then due and owing, a special warranty deed conveying good and marketable title to the premises to existing easements and restrictions of record, which deed has been executed by Seller prior to or contemporaneously with the execution of this Agreement, and which deed will be held in escrow by Barbara Sumple-Sullivan, Esquire, of New Cumberland, Pennsylvania. 25. Buyers' Option to Take Title. In the event that Seller is unable to give a good and 15 ~~ "-I J ~; . 'Jo It't, ,!I!If (I , { t , , ", , " marketable title subject to the previous conditions of title referred to hereinabove, Buyers shall have the option of taking such title as Seller is able to give, with an abatement of price, equal to the costs of correcting the title defect. 26. Litigation. Should any litigation be commenced between the parties hereto concerning said property, this Agreement, or the rights and duties of either in relation thereto, the party prevailing in such litigation shall be entitled, in addition to such other relief as may be granted, to a reasonable sum as and for their attorneys' fees in such litigation which may be determined by the Court in such litigation or in a separate action brought for that purpose. 27. Entire Agreement. This is the entire Agreement by and between the parties hereto and this Agreement shall be binding on and inure to the benefit of the successors, heirs, personal representatives and assigns of the parties hereto. Nothing in tbis paragraph shall be construed as a consent by Selier to any assignment of tbis Agreement. 28. Waiver. The waiver of any breach of tbis Agreement by either party shall not constitute a continuing waiver or a waiver of any subsequent breach, either the same or another provision of tbis Agreement. 29. Modification. No modification oftbis Agreement shall be binding upon the parties hereto unless the same shall be in writing and duly executed by the Buyers and the Seller. 16 ,- ~ . ,. ".1- _ ~ _ ,. r_ " ',;, .~, , . , f>> -, t I!-'" ~) , ( . ,. ,> J, 30. No Existing Leases. Seller warrants that no portion of the premises are subject to any existing rental or lease agreements. IN WITNESS WHEREOF, the parties hereto, intending to be legally bound, hereunto set their hands and seals the day and year first above written. ~SL, ~. . 0k'o~ em L. Wilson, Seller (SEAL) ~ "- Ira J. McMa /'*? /}?(SEAL) us, Jr., Purc:m6er ) (SEAL) ) Karen L. Dunkle, Purchaser 17 ~, " ..- .."".~"._--""..,.~:",;.;,.~'~-~,' -"--~,; '!' t '4 I~" ~ , - .~,~ _ .1-"..J -.~P '^ ~'" ,.' If.! .1.'-.. EXHIBIT . :;1 _. ~. ;.; "A" . .~-";l._ .. " <_'C:~'" ~" ".Ie,. ""~' '''.Ji. !Wi ) ~_M,..." , ~ I'. J~ " A- _.L ,,_1- , -L" ~" '., ',- ~-, J ~ ~" - '~'1 "ii' Ii: . " .. ,lIade the reii' . in the year fl,tm<-. day of J'ineteen. hundred and seventy-nine (1979) ~inrnu FEItN. L. PAl!l:II'II. ./k/. FEItN L. WILSON, single person, of C;;;' Cumberland, Cumberland COUl1ty. Pennsylvania. GRANTOa, A N D FERN L. WILSON, single person, of New Cumbe41and. Cumberland County. Pennsylvania, GRANtEE. ~ihusseflr, That in consideration of One Doll.~ ($1.00) \ in hand paid, the receipt whereof i8 h.ereby acknowledzed, th.e sa.id Ir.a".tor do es hereby 4rant and con.vey to the said $l'entee. 'ber heir! end assitn.s, ALL 'nlAT CEUAIN lot or trac:t of land situate in tbe, Borough of New Cumberland, Cumberland County, Pennsylvania, more particularly bou11d.ed and desc:ribed in accordance with a survey by Hichael C. D'Angelo, Registered Surveyor, dated October 22, 1976, as follows. to wit: BEGINNING at a point at the northeast comer of Harke: Street and Fourth Street, said point being the point of intersec:tiol1 of the. external walls of buildings Nos. 401 and 403; tbel1ce a10ug the eastern line of Market Street, North SO degrees 00 minutes West fifty (SO) feet to a uail, being the southwest comer of Lot No. 73; thence along the same North 40 degrees 00 minutes East ODe hundred five (105) feet to an iron pin; thence along lands DOW or formerly of George E. Pent: and through Lo~ No. 72, South SO degrees 00 minutes East fifty (SO) feet to an ircm pin 011 the northern line of Fourth Street and on the extensiou line of the southern external wall of buildings Nos. 401 and 403; thence along said last mentioned line South 40 degrees 00 minutes West ooe hundred five (10S) feet to the Place of BEGINNING. BEING the greater part of Lot No. 72 on the General Plao of the Borough of N~ Cumberland, Pennsylvania. RAVING thereon erected a two-story brick building known as and numbered 401-403 Market Street. BEING THE SAME premises which thomas A. Parenti and Fern L. Parenti, his wife, by deed dated March 27, 1978, and recorded in Deed Book "5", Volume 27. Page 244. in the Office of the Recorder of Deeds in and for Cumberland County. Pennsylvania, granted and conveyed unto Fern L. Parenti. The said Thomas A. Parenti and Fern L. Pare~i were divorced under date of October 12, 1978, by Deeree of the Court of Common Pleas of Dauphin County, Pennsylvania, to No. 1744-5-1978. The said Fern L. Parenti on October 20, 1978, elec:ted to resume her maiden n8ae of Fern L. Wilson. I! ," ,,~.._ ~:~,. ._ 1:'~.._ T U:l.~_ !i! ~ .~"'"' L ~ " - ~i .'h; Jf~,. it" #-. '--1+ "'"- ,,- ,.:1"--._, ,--~- ~[~iiP~-#' , '.' " ~n ~lihuJ!ii5i ?N11.crm, said 1rantor . and seal ka S hereunto ut her lulnd the day and year first above written. $ign.b, $....1.11 .....b ~elh.....b 1- 1~.c lJr.tenu.c dE ~~ddZ. </..:h.vtr lI;omm""m.,,1t~ or iJ.......'Zl'l1"..i" Q;"unn:. ,,( Cu...-I~ . - On t.hiM, U&e (, ~ du!) u/ ~ the "nd/ltr;ritned utfi.cer, ptNonally opp,oud a } ..... If) 79 . be(ure me a Noeary Public, ./ FEBN L. PAREll'!I, a/k/a FEBN L. l/ILSON . .:,.....i ....;......-... Jcnuum. to m,..(orltrJti8(m.torny prol/en) to be th,. pt:7'tIrm, S UJJuIlfe 1I4M1't is .1II{ii':~1rJlt~4i1f',,,~ ':' ilUt,.umflnt. Gild ocJcnoruledted that sht! t'zecutlltl tlu! ..ame (0" the p""po:teiJj~f~~r&toi~...":'.;."\.. IN WITNESS Jf~HEREOF,1 have Mreunto .,..1. my h4nd GAd official,! _Hal. ~~~~~-!'. j . .. ~.... . ~",LJ77 - v,-:L. .~.~~;:' 'M' ::........Il:.v .' ~Sot-.....-:'. Rt'I ~. c \lIIC' .' ol...~' -..~~ -1J ;:r;.,.... ."~" or::1'!.i'4i~~. ft'M ;.~,. ~onl"'''''m...Ji~ ..r 1J.......'Z1'l1"..i.. 0;......1!! of 0,& thi8. the day o( the undf!,.ttitnt'd o/licer, pt!l'sonall!) appeared } u_ 19 , b,.(ore me k'WIUI& to "'''(Ul' .'fltiJr!ur'lol'Uy 'II'm.,./t) lfll,,. th,. p,.rfU,Jn_ WJWII" /Mm.,. 1m.1Mcri.bed hi the ,r.>ilhin imrll'lIl11el&t, GI&d arkIUJlul,.dt,.r/ tlwl h,. (I,Z/'f'ul,d th,. lIumtl fuI' lll,. ,,,apolle thel'#tin rot,ntwn,.d. I.V WIT.'-/::SS WHEREOF, I hum! hereunto ,'flt my hand and ,#tal. ~ ~.creh~ OJ:.crlif~ that the precise address of the 1rantee e\'.."AL.H iUIUe .. herein is ~n' M~pket Street New Cumberl~nd PA 11070 ., ". ~ , J , ,_ ~ .... t.; 1'.1, ) , . EXHIBIT "B" , " ;.J, '-~ " ,- ,-'_, _~'_ l;.'o,. , , , ~ -",-" ~ ",115.'" . . ji) t, ''It'' 't ... ..... _' ',__ 1.',,-1 r', "',"-.~_ >;';;"'1-. .' s" \_~;~.'.C!~:::.::~~::';"'-:.'::.:;.j.~i>'" :;';-,rr.,<'.-: :_,'~ ,-.,,-~,.,-- ~,;,,-, ;C<' ;':" at ............. -- <'c" ':~':c L' 't ,I '" , ;.j1~1it, ~ ASSET PURCHASE AGREEMENT BY AND BETWEEN FERNROCK SNYDER, INC, AND McDUNK, INC, , '1,ir;... · , r-.' , , '. ,\, .',' i' ,-. ~..; . ~ - EXHIBIT "C" ,. ,~" \ J ,t r., ;1:=;, " ~. ~ ^, "" , , I -- ~ " .,"J. "', ' ,- "~_ . -i," , ~ " . ',,i,i, -'''' .i' I '~ , . .ii' 4, , 'f , .. -t ~ . , . -" d?1 @~7 Qp~l !199 . Page 1 \ i '--~ \.. . Wilson to McManuslDunkle ---- Compound Period .......: Monthly Nominal Annual Rate ... : 5.250 % Effective Annual Rate .. : 5.378 % Periodic Rate .............. : 0.4375 % Daily Rate .................. : 0.01438 % CASH FLOW DATA Event Start Date Amount Number Period End Date 1 Loan 06221999 265,000.00 1 2 Payment 0701 1999 1,785.69 84 Monthly 06 01 2006 3 Payment 07 01 2006 201,290.48 1 AMORTIZATION SCHEDULE - Normal Amortization Date Payment Interest Principal Balance Loan 06 22 1999 265,000.00 1 0701 1999 1,785.69 343.05 1,442.64 263,557.36 2 08011999 1,785.69 1,153.06 632.63 262,924.73 3 0901 1999 1,785.69 1,150.30 635.39 262,289.34 4 1001 1999 1,785.69 1,147.52 638.17 261,651.17 5 11011999 1,785.69 1,144.72 640.97 261,010.20 6 12011999 1,785.69 1,141.92 643.77 260,366.43 1999 Totals 10,714.14 6,080.57 4,633.57 7 01 01 2000 1,785.69 1,139.10 646.59 259,719.84 8 02 01 2000 1,785.69 1,136.27 649.42 259,070.42 9 03 01 2000 1,785.69 1,133.43 652.26 258,418.16 10 0401 2000 1,785.69 1,130.58 655.11 257,763.05 11 05 01 2000 1,785.69 1,127.71 657.98 257,105.07 12 0601 2000 1,785.69 1,124.83 660.86 256,444.21 13 0701 2000 1,785.69 1,121.94 663.75 255,780.46 14 0801 2000 1,785.69 1,119.04 666.65 255,113.81 1509012000 1,785.69 1,116.12 669.57 254,444.24 1610012000 1,785.69 1,113.19 672.50 253,771.74 17 11012000 1,785.69 1,110.25 675.44 253,096.30 1812012000 1,785.69 1,107.30 678.39 252,417.91 2000 Totals 21,428.28 13,479.76 7,948.52 19 01 01 2001 1,785.69 1,104.33 681.36 251,736.55 20 02 01 2001 1,785.69 1,101.35 684.34 251,052.21 21 03 01 2001 1,785.69 1,098.35 687.34 250,364.87 22 04 01 2001 1,785.69 1,095.35 690.34 249,674.53 23 05 01 2001 1,785.69 1,092.33 693.36 248,981.17 24 06 01 2001 1,785.69 1,089.29 696.40 248,284.77 25 07 01 2001 1,785.69 1,086.25 699.44 247,585.33 26 08 01 2001 1,785.69 1,083.19 702.50 246,882.83 - . ' , ". . .. Wilson to McManus/Dunkle Date 27 09 01 2001 28 1001 2001 29 11 01 2001 30 1201 2001 2001 Totals 31 01 01 2002 32 02 01 2002 33 03 01 2002 34 04 01 2002 35 05 01 2002 36 06 01 2002 37 07 01 2002 38 08 01 2002 39 09 01 2002 40 1001 2002 41 11012002 42 1201 2002 2002 Totals 43 01 01 2003 44 02 01 2003 45 03 01 2003 46 04 01 2003 47 05 01 2003 48 06 01 2003 49 07 01 2003 50 08 01 2003 51 09 01 2003 52 1001 2003 53 11012003 54 1201 2003 2003 Totals 55 01 01 2004 56 02 01 2004 57 03 01 2004 . 58 04 01 2004 59 05 01 2004 60 06 01 2004 61 07 01 2004 62 08 01 2004 63 0901 2004 64 1001 2004 65 11012004 66 1201 2004 2004 Totals -- ,I.) ,;.- 1 0" ,-,....-> Payment 1,785.69 1,785.69 1,785.69 1,785.69 21,428.28 1,785.69 1,785.69 1,785.69 1,785.69 1,785.69 1,785.69 1,785.69 1,785.69 1,785.69 1,785.69 1,785.69 1,785.69 21,428.28 1,785.69 1,785.69 1,785.69 1,785.69 1,785.69 1,785.69 1,785.69 1,785.69 1,785.69 1,785.69 1,785.69 1,785.69 21,428.28 1,785.69 1,785.69 1,785.69 1,785.69 1,785.69 1,785.69 1,785.69 1,785.69 1,785.69 1,785.69 1,785.69 1,785.69 21,428.28 " Interest 1,080.11 1,077.03 1,073.93 1,070.81 13,052.32 1,067.68 1,064.54 1,061.39 1,058.22 1,055.04 1,051.84 1,048.63 1,045.40 1,042.17 1,038.91 1,035.65 1,032.36 12,601.83 1,029.07 1,025.76 1,022.43 1,019.09 1,015.74 1,012.37 1,008.99 1,005.59 1,002.18 998.75 995.31 991.85 12,127.13 988.38 984.89 981.38 977.86 974.33 970.78 967.22 963.63 960.04 956.43 952.80 949.15 11,626.89 ~ ~ , -, ~, - ~ , Principal 705.58 708.66 711.76 714.88 8,375.96 718.01 721.15 724.30 727.47 730.65 733.85 737.06 740.29 743.52 746.78 750.04 753.33 8,826.45 756.62 759.93 763.26 766.60 769.95 773.32 776.70 780.10 783.51 786.94 790.38 793.84 9,301.15 797.31 800.80 804.31 807.83 811.36 814.91 818.47 822.06 825.65 829.26 832.89 836.54 9,801.39 , J ><d!;kj"lll<~',",,": _.J J I , (1J7 06 ~ 999 Pa$le 2 Balance 246,177.25 245,468.59 244,756.83 244,041.95 243,323.94 242,602.79 241,878.49 241,151.02 240,420.37 239,686.52 238,949.46 238,209.17 237,465.65 236,718.87 235,968.83 235,215.50 234,458.88 233,698.95 232,935.69 232,169.09 231,399.14 230,625.82 229,849.12 229,069.02 228,285.51 227,498.57 226,708.19 225,914.35 225,117.04 224,316.24 223,511.93 222,704.10 221,892.74 221,077.83 220,259.36 219,437.30 218,611.65 217,782.39 216,949.50 216,112.96 "' =M~ ~ ,_..... L' ".1-_ '" ", ." -.' -~ . , -"'-",' -, ' """"" -~-", I ',', , , ."' N . J, . " ' 07 o~ 1999 .' ",' Page 3 . Wilson to McManuslDunkle Date Payment Interest Principal Balance 67 01 01 2005 1,785.69 945.49 840.20 215,272.76 68 02 01 2005 1,785.69 941.82 843.87 214,428.89 69 03 01 2005 1,785.69 938.13 847.56 213,581.33 70 04 01 2005 1,785.69 934.42 851.27 212,730.06 71 05 01 2005 1,785.69 930.69 855.00 211,875.06 72 06 01 2005 1,785.69 926.95 858.74 211,016.32 73 07 01 2005 1,785.69 923.20 862.49 210,153.83 74 0801 2005 1,785.69 919.42 866.27 209,287.56 75 09 01 2005 1,785.69 915.63 870.06 208,417.50 76 1001 2005 1,785.69 911.83 873.86 207,543.64 77 11 01 2005 1,785.69 908.00 877.69 206,665.95 78 1201 2005 1,785.69 904.16 881.53 205,784.42 2005 Totals 21,428.28 11,099.74 10,328.54 79 01 01 2006 1,785.69 900.31 885.38 204,899.04 80 02 01 2006 1,785.69 896.43 889.26 204,009.78 81 0301 2006 1,785.69 892.54 893.15 203,116.63 82 04 01 2006 1,785.69 888.64 897.05 202,219.58 83 05 01 2006 1,785.69 884.71 900.98 201,318.60 84 06 01 2006 1,785.69 880.77 904.92 200,413.68 85 07 01 2006 201,290.48 876.80 200,413.68 0.00 2006 Totals 212,004.62 6,220.20 205,784.42 Grand Totals 351,288.44 86,288.44 265,000.00 , .. '-, ",.. . :.. . , - 0'" i~,,<,,;c- d "~ , , ;. p, (~- \~ @b7 ~6'1'99~ P~ge 4 Wilson to McManuslDunkle Last interest amount decreased by 0.01 due to rounding. -"" --,- ,",'- ~- --~ .-, 1 ' rlilTm:~ . ~ <, ,-~ ' , -j.., <,-, "co, . ,,~ ',;.,,,,,,,,-~-,".." 'mki,. ~. J . EXHIBIT "B" "".,_'W._ _ _ _~~~_~ ~, _ ~_ &: I ! i I I ARCEL: 25-24-0813-o.46~ -TYPE: CC i unicipality : 25 -~w 'CUMBERLAND 1ST WD I wner I s Name : WILSON, FERN L ear Group Sty Grade Int. Land NBHD LFI 25 1'0 ~--' <,.', I -6;';".,.. :"S'-' "':, ~t )I I. ..... .' ",,':~; Schl :,__ 9 Value override: Nbhd: NE1F't~ERLAND 1ST WD RES (See Text screen) LAF(code) Dw1Typ Ext Walls . ( .) Special-comments Residential Value .,. ( ( . % complete, Index: .%) Out Buildings (screen 4) ...... Other Residentials (no. ).. Commercial Bldgs... (no. ).. Total Building Value............ 252740 Current Prey FMV Cost Fair Market Land ...... 28090 28090 28090 Improvments 252740 292880 252740 Total..... 280830 320970 280830 Assessed... 280830 320970 280830 SALES VALIDATION Steb: Ratio: Analysis: 01 Ratio: Valid: - FAMILY SALE REVIEW: Part Interest: Ag Use 1974 FMV 4400 47280 51680 12920 .of Fctr Land Impact 10 % 5.43 47% .12 Sales Date: Sell Price: Adjusted SP: 04/12/1979 1 FMVL/Ac: Acres Code: Deeded Acres: FMV/Ac: ~ ."t_ ."_ ~ . EXHIBIT ~ , ,-,,) "e" " , .J , '~itjiif;j'h 10. ~ ".r .' , , , ;;.~. i.' , 'L~';:";;,;':;';/ \ . ,...J, -.>:I'::.5:ZY 1 ... .. . ,;}'rj~)" . j , ,. J_"",=__.',,; j~ .' ,-- - - m. ,'. - '<~k . , ( ." t ASSET PURCHASE AGREEMENT BY AND BETWEEN FERNROCK SNYDER, INe. AND McDUNK, INe. -.' ." ti . Article ,< ...i' ., 0-,1 J~ 1 ~ '/l 1 ~- , . TABLE OF CONTENTS 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 pa,ge No Assets to be Conveyed. , , , . . . . . , . . . . . , . . . . . . . . . . . . . . . . . . . . . . . . . , . . 1 PurchasePrice .........,..,.....................................3 Security. . . . . . . . , . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4 Condition Precedent ..............................................7 Events of Default . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . , 8 Remedies on Default .."................................,....... 11 Representations and Warranties of Seller ..,.,.,.,............,.......12 Covenants .................,.................................. 15 Representations and Warranties of Buyers ....... . . . . . , . . . . . , . , . . , . . .. 16 Closing Date and Place .......................................... 18 Closing Documents ................,..,......................... 18 Costs and Expenses ,...,.."...,..,..,........,..,.......,....,. 20 Risk of Loss . . . . . . . . . , . . , . . . . . . . . . . . . . . . . . . . . . . . . . . . . . , . . . . . . . . 21 Indemnification ....,....,...........................,........... 22 Covenant Not to Compete . . . . . . . , . . . , . . . . . . . . . . . . . . . . . . . . . . . -. . , . . 23 Consulting Agreement .,..,....,...,..,..,.........,.... ,....,.,.23 Notices ........".."............,..............,..........., 23 Benefit and Assignment ...,..".........,...,..,........,......,. 24 Entire Agreement ....."...............,.....,.,..,.......,.....24 Choice of Law . . . . . . . . . , . . . . . . . . . , , . , . . , . . . , . . . . . . . . . . , . . , . , . . . 25 Covenant of Further Assurances . . . . . , . . , . . . . . . . . . . . , . . . . . . , . . . , . . . . 25 Guarantee & Surety Agreement . , . . . . , . . . , . . . . , . . . . . . , . . , . . . , . . , . . , 26 By McManuslDunkle ,-, .,'. . - J~"~ , ,-~,~ ' ^ - h'.C,-,-" -"", _ "'. "J 0 -'--'..ii;;."" . ';;..:~-,-,- "" _,.1 ., ... ' . . , '. ' . ASSET PURCHASE AGREEMENT TInS AGREEMENT, executed this /9- day of ~pr/ / ,1999, by and between FERNROCK-SNYDER, INC., a Pennsylvania corporation (hereinafter referred to as "Seller") and McDUNK, INC., a Pennsylvania corporation (hereinafter referred to as "Buyer"), is for the sale and purchase of assets set forth herein used and useful in the operation of bar/restaurant/catering ousiness subject to the prior approval of the Pennsylvania Liquor Control Board (hereinafter "PLCB") and the other conditions contained herein. NOW, THEREFORE, in consideration of the mutual covenants of this Agreement and in reliance on its representation and warranties, the parties, intending to be legally bound, agree as follows: ARTICLE 1 ASSETS TO BE CONVEYED On the Closing Date (defined herein), subject to the representations, warranties, conditions and agreements contained herein, Seller shall sell, assign, delivery, transfer and convey to Buyer, and Buyer shall purchase, the following assets (hereinafter "Purchased Assets"), free and clear of all liens, charges, encumbrances and security interests of any nature whatsoever; 1.1 License. P A Liquor Control Board Distnbution License No. R-15960 with a Sunday - ~ ,-1",1 ..... '''''' '-'~ ' '"- iI.' ._, ~' , . . .,' . , . , . . ,. Sales Permit and Amusement Permit. The sum of SEVENTY THOUSAND ($70,000.00) DOLLARS is allocated herein for this asset. 1.2 Physical Assets. All equipment, furniture, fixtures, the vehicle, inventory, except as set forth in 1.3 below, and other tangible assets owned by Seller and used or useful in the operation of the bar/restaurant business as descnbed in Exlnbit "A" ("Tangible Purchased Assets") herein, together with any replacements or additions hereto and less such items as may be consumed or deleted in the ordinary course of business prior to the Closing Date. All items are sold in an "as is" condition. The sum ofFQRTY-FIVE THOUSAND ($45,000.00) DOLLARS is allocated herein for these assets. 1.3 Liquor and Alcoholic Beverage Inventory. Seller's inventory on hand of liquor and alcohol beverages is not included for allocation of the purchase price and said value is to be established pursuant to 2.3 hereof. 1.4 Intangible Assets and Business Data. All tangible assets utilized in the operation of the business, including the fictitious name "Pete's Cafe" and the business' good will. All Seller's data pertaining to the operation of the bar/restaurant/catering business, all equipment warranties and data, and customer lists. The sum ofFIFTEEN THOUSAND ($15,000.00) DOLLARS is allocated herein for these assets. 2 ::: .' :.1 , ~1 -"';" . - ,c_ '. _+ _ .~ . J'- '0>'_. M-' ,. . ',," '-li,-:; ~,~c~ 'I '.) 'II I . . . r ARTICLE 2 PURCHASE PRICE 2.1 Purchase Price. Subject to the adjustments which may be required by Article 2.2( d) and 2.3 herein, the Purchase Price for the purchased assets shall be ONE HUNDRED THIRTY ($130,000.00) DOLLARS. 2.2 Payment of Purchase Price. The purchase price shall be paid as follows: (a) ~IVE THOUSAND ($5,000.00) DOLLARS to Barbara Sumple-Sullivan, Esquire, attorney for Seller at signing, to be held in escrow until Closing, Said FIVE THOUSAND ($5,000,00) DOLLARS shall be paid to Seller, FemRock-Snyder, Inc. at Closing. (b) TEN THOUSAND ($10,000.00) DOLLARS shall be paid to Seller at Closing. (c) The remaining ONE HUNDRED FIFTEEN THOUSAND ($115,000.00) DOLLARS to be paid in eighty-four (84) equal monthly installments. Subject to adjustments as set forth in paragraph 2.2( d) hereof, interest shall be at the prevailing applicable federal rate (mid term) at time of Closing but no less than 5.25% amortized over a twenty (20) year period, A balloon payment shall be due for the remaining balance on the first day of the eighty-fifth (851h) month following Closing: Specifically, assuming a 5.25% rate: (1) Monthly payments of SEVEN HUNDRED SEVENTY-FOUR and 92/100 3 i'! ,.,"-. --, - d ' .,'." " 2"'~ ' .-'-":,, >~ il&.'tJe . " " . , , . . , r . ($774.92) DOLLARS for eighty-four (84) payments with the first payment being due on the first day of the first calendar month following Closing and on every first day of the next eighty-four (84) months. If any payment is not made by the tenth (lOlh) day of the month, Buyer shall pay an additional five (5%) percent of the monthly payment due as penalty. Said late charge shall be paid by Buyer to Seller with the monthly installment due and owing. The full balance of EIGHTY-SEVEN THOUSAND EIGHT HUNDRED SIXTY-TIiREE and 86/100 ($87,863,86) DOLLARS shall be due on ~e first day of the eighty-fifth (85lh) month following closing, A copy of the proposed Amortization Schedule is attached as Exhibit "B" (d) Buyer shall have the right to prepay the purchase price, However, said right to prepay is specifically contingent upon Buyer simultaneously satisfYing all sums due and payable pursuant to the Installment Sale Agreement dated even date herewith between Buyer's principals, McManus, Dunkle, and Fern 1. Wilson. 2.3 Purchase ofInventory, In addition to the above referenced purchase price, Buyer shall pay to the Seller, FemRock-Snyder, Inc" an additional sum representing the actual value of the alcoholic beverage and liquor inventory on hand at date of Closing, as approved by Buyer. The inventory shall be valued at cost and determined on the date of Closing by mutual accounting between the parties. ARTICLE 3 SECURITY 3.1 Financing Statements and Encumbrances. To secure Buyer's obligation hereunder, 4 ri . ,~ '~l ,01 '___, i"~'-_" ""-1,- . ~ -',,-,< -~-..i, 'j' f.., );, , I' , . , Buyer shall deliver to Seller Uniform Commercial Code financing statements to encumber all said accounts receivables, fixtures, the vehicle and equipment. Further, encumbrances shall be made on all motor vehicle title certificates at the Commonwealth of Pennsylvania Department of Motor Vehicles. Seller agrees to promptly release said liens upon Buyer's satisfaction of payments due and owing in accordance with Article 2.2 hereof. Seller agrees to cooperate with release of any of these security interests if new equipment or vehicles are sought to be purchased by Buyer provided Buyer will allow substitution of a similar interest on the substituted property and said substituted property has equal or greater equity value. 3.2 Stock Restrictions. In addition to the financing and encumbrances set forth in 3.1 above, Buyer shall agree to adopt a restrictive corporate bylaw which will provide that the PLCB Distribution license with Sunday and Amusement permit to be conveyed to Buyer pursuant to this Agreement shall be held by Buyer and not sold, transferred, encumbered or assigned as long as any sums are due and owing by Buyer pursuant to this Asset Purchase Agreement or any sums are due and owing pursuant to the Installment Sales Agreement between Wilson, McManus and Dunkle or the Non-Competition and Consulting Agreement executed of even date hereof This corporate bylaw restriction shall not be amended, rescinded or repealed except with the express written consent of Fern 1. Wilson, President of Seller. Seller and Fern 1. Wllson, individually, shall have a lien on all issued and outstanding stock of Buyer which is issued and/or is outstanding at any time prior to a full payment of all sums due under this Agreement or the Installment Sales Agreement or Non-Competition and Consulting 5 , . -.<' ,,:,j. ".: . j '. ~ ' - ',.u~ ". '!i..'cl' .', , ,,1 , , . . . . , Agreement set forth above. All stock shall be held pursuant to a security agreement which shall be executed at Qosing, which Agreement shall be drafted by counsel for Buyer and approved by counsel for Seller. Seller shall have the right to vote such shares only in the event of default by Buyer pursuant to this Agreement or in the event of any defuult pursuant to the Installment Sale Agreement and Non- Competition Agreement and Consulting Agreement executed of even date. 3.3 Pledge of Stock. Buyer shall pledge to Seller (including physical delivery of) all of their authorized and outstanding capital stock in a form satisfactory to Seller's attorney whereby Seller shall become the sole and unconditional owner of all of Buyer's capital stock in the event Buyer's uncured default hereunder as defined in Article 5, In order to assure compliance with the foregoing, Buyer has caused to be deposited with Seller's attorney, Barbara Sumple-Sullivan, Esquire, the certificates for the shares of stock required under para,graph 3,2 and 3.3 hereinabove. Said stock is to be delivered to Attorney Sump le- Sullivan at Closing and held in escrow pending satisfaction of the indebtedness. Buyer shall provide Seller with a true and accurate copy of its bylaws, certified by its secretary, indicating compliance with clause 3.2 above. Upon satisfaction of the payments of the respective obligation required in 3.2 of this Agreement, Seller agrees to cancel the pledge of stock required and return said stock certificate to Buyer. 6 ',L.", 1 , "'l" ., , , , ". , , , 3.4 Judgment Note. Buyer together with Ira 1. McManus and Leslie 1. McManus, his wife and James R. Dunkle and Karen 1. Dunkle, his wife, jointly and individually, a,gree to make, execute and deliver to Seller at the time of Closing an executed judgment note supporting the unpaid obligation owing to Seller, 3.5 Assignment of Leases. Buyer a,gree to make, executed and delivery to Seller at the time of final Closing, an assignment of all leases and rental income from the property owned at 401- 403 Market Street, New Cumberland, PA, ifany. ARTICLE 4 CONDmON PRECEDENT 4.1 PLCB Approval. Consummation of the purchase and sale provided herein is conditioned upon the PLCB having given its consent to the transfer of the license and permits to Buyer without any condition materially adve~se to Buyer. If said transfer of license and permits are denied for any reason other than Buyer's failure to diligently and in good faith pursue the transfer, this Agreement shall be deemed canceled and the escrow deposit set forth in Article 2.2(a) hereunder shall be returned to Buyer, and the parties shall be under no further obligations to each other. 4.2 Filing of Application. The parties agree to proceed as expeditiously as practical to file or cause to be filed an application requesting PLCB approval to the transactions set forth herein. The parties agree that said application shall be filed with the PLCB on or before twenty (20) days of the date hereof and that it will be prosecuted in good faith and due diligence. The parties agree to use 7 ", ''''',-,'', 1!i , . , '. ,;.,--- ,I "'",',-"','," ,~,,"""_i- .,~, " ,,' . , 1 their best effOrts to file additional information or amendments requested by the PLCB. Each party will be solely respollS1ble for the expenses incurred by it in the preparation, filing and prosecution of the application. Buyer shall pay all costs and fees due to the PLCB or required by Rules and Regulations of the PLCB. 4.3 Time for Approval - Termination. This Agreement may be terminated by Seller without liability, if, after sixty (60) days of the date of this Agreement the PLCB should fail to act upon the application to transfer the license and permit. If this Agreement is terminated pursuant to this Article, the Escrow Deposit set forth in Article 2.2(a) shall be returned to Buyer and the parties shall be under no further obligation to each other. 4.4 Purchase of Real Estate. This Agreement is conditioned upon the satisfactory closing of the real estate transfer agreement between Fern 1. Wilson and Ira J. McManus, Jr, and Leslie J. McManus, his wife and James R. Dunkle and Karen 1. Dunkle, his wife. ARTICLE 5 EVENTS OFDEFAlJLT 5.1 Events of Default. The following shall be "Events of Default" under this Agreement and the term "Events of Default" or "Default" shall mean, wherever they are use in this Agreement, anyone or more of the following events: (a) A failure to perform or breach of any of the material warranties, 8 " .-^' iL. . " ~ ~'''.'L t -' , - , jn' ~"_ ',,-- ''',_i,_ "-(.,,~-, . " ~ I, I , , J' " . . representations, covenants or obligations of the Seller or Buyer as set forth in this Agreement; (b) A failure on the part of Buyer to make any of the payments within thirty (30) days of the due date required to be made in this Agreement specifically including, but not limited to, those payments required under Article 2 hereof, (c) A failure on the part of the Seller or the Buyer to perform their respective obligations in Article 4; (d) A failure on the part of Buyer to keep and maintain the PLCB Restaurant License and Pennits as issued by the PLCB valid and in good standing by failing to pay all fees and charges required to keep, maintain and renew said license and pennits, and to keep and observe all laws, rules and regulations governing the use of the License. The following standard shall be utilized in determining Buyer's breach or default in failing to keep and observe all laws, rules and regulations: Any conduct by Buyer in the operation of said business which results or could result in citation or citations issued by the Pennsylvania Liquor Control Board which would justify a revocation of the license or pennits in light of past rulings of said Board and court decisions as compared to minor suspensions; or, in the event of a sufficient number of citations which normally result in minor suspensions of the license or permits but because of the number and frequency of the citations, place the license in jeopardy of revocation in the event of an additional citation being issue. ( e) The Seller or Buyer shall file a voluntary petition in bankruptcy or shall be adjudicated a bankrupt or insolvent or shall file any petition or answer seeking any 9 - ,. ",1 C';- - -~,-, -.- > '. , " d I ,,-" -" ~'~~i . , " , . , ~ '. reorganization, arrangement, composition, readjustment, liquidation, dissolution or similar relief for itself under any present or future federal, state or other statute, law or regulation related to bankruptcy, insolvency or other relief for debtors; or if Seller or Buyer shall seek consent to or acquiescence in the appointment of any trustee, receiver or liquidator of the Seller or Buyer or shall may any general assignment for the benefit of creditors; (f) A petition shall be filed against Seller or Buyer seeking any relief under the kinds of laws and regulations related to bankruptcy, which petition shall not have been dismissed for an. aggregate of thirty (30) days or if any trustee, receiver or liquidator of the parties shall be appointed without consent or acquiescence of the respective party hereto and such appointment shall remain unvacated for an aggregate of thirty (30) days. Then, in the event anyone of the foregoing events occur, a default shall exist hereunder. 5.2 Waiver of Default. No delay or omission to exercise any right or power occurring upon any default shall impair any such right or power or shall be construed to be a waiver thereof, but any such right and power may be exercise from time to time and as often as may be deemed expedient. In the event any agreement, warrant, representation, covenant or obligation should be breached and thereafter waived by the other party, such waiver shall be limited to the particular breach so waived and shall not be deemed to waive any other breach hereunder, 10 . -, ~" - -, v"",'_ ",,'-",,- ,i-'_ 'I., . ""j,-' _c'. U~""""',h,' ,f,' ',' . I l < . , . ARTICLE 6 REMEDIES ON DEFAID.T 6.1 Remedies on Default. Whenever any event of default referred to herein shall have happened and be existing, anyone or more of the following remedial steps may be taken: (a) Seller may perform for the account of Buyer any covenant or obligation in the performance of which Buyer are in default, in which event, Buyer shall immediately pay to Seller all amounts paid by Seller, together with reasonable counsel fees, as well as with ~terest at the rate of ten (10%) percent per annum from the date of payment by Seller. (b) Seller may declare all sums which Buyer are obligated to pay to Seller pursuant to this Agreement, together with interest accrued thereon, immediately due and payable in full. IN SUCH CASE OF DEFAULT, Buyer HEREBY AUTHORIZE AND EMPOWER ANY ATTORNEY OF ANY COURT OF RECORD IN THE COMMONWEALTH OF PENNSYLVANIA OR ELSEWHERE TO APPEAR FOR Buyer AND CONFESS A JUDGMENT FOR THE ENTIRE PRINCIPAL SUM AND INTEREST REMAINING UNPAID THEREON, WITH TEN (10%) PERCENT ATTORNEY'S COMMISSION OR FEES, HEREBY WAIVING THE RIGHT AND EXEMPTION AND INQUISITION, SO FAR AS THE PREMISES HEREIN DESCRIBED, AND ANY PROPERTY OR BUILDING THEREON MAY BE CONCERNED. 1 1 J; '",..1 ,..;;;c'" , , ~"-O-"'_-_':" '" ;'.'.',~'l'~..'I, ,- ,"",.%t,Wl " ' ", . , ' . (c) Seller may declare this Agreement to be null and void and exercise all remedies available by enforcement and execution upon the security created by Article 3 of this Agreement or any other remedies available at law. This shall include exercise of the stock pledge to allow it to continue operation of the business 6.2 Cumulative Rights. No right or remedy herein conferred upon or reserved to Seller is intended to be exclusive of any other right or remedy herein or by law provided, but each shall be cumulative and in addition to every other right or remedy herein given or now or hereafter existing at law or in equity or by statute, and may be pursued singly, successively or together at the sole discretion of Seller and may be exercised as often as the occasion therefor shall occur. ARTICLE 7 REPRESENTATIONS AND WARRANTIES OF SELLER Seller makes the following representations and warranties, all of which have been relied upon by Buyer in entering into this Agreement and all of which shall be true and correct on the Closing Date as if then made: 7.1 Owner of Assets. Seller FernRock-Snyder, Inc. warrants that it is the owner of assets to be sold pursuant to this Agreement and that no other third party has any interest in said assets. 7.2 Cor:porate Standing. Seller FernRock-Snyder, Inc., is a corporation duly organized, validly existing, and in good standing under the laws of the Commonwealth of Pennsylvania. Seller 12 ~, " <"t ~ >'I'. ""f; , , -..-, " L'_"__"~~".._~.Ii'NJ ',' ',' . , . has full corporate authority to own its properties, to carry on the business it presently conducts, and to enter into and consummate the transactions contemplated by this Agreement. The execution and delivery of this Agreement have been duly authorized by the Board of Directors and Shareholders of Seller, by their actions at duly called and convened meetings in accordance with Seller's bylaws, and applicable corporation bylaws, and certified copies of such resolutions shall have been delivered to Buyer at Closing. The resolutions of the Board of Directors and Shareholders of Seller specifically authorize Seller to sell all of the assets set forth in Article 1 above. This Agreement is valid and binding upon Seller in accordance with its terms. 7.3 PLCB Ucense Seller FernRock-Snyder, Inc. is the holder of valid Restaurant License No. R-15960 with a Sunday Sales Permit and Amusement Permit issued by the PLCB. There are no applications, proceedings, or material complaints pending at the PLCB, nor to Seller's knowledge, threatened, relating to the license or permit which might result in the failure to renew, revocation of, modification of, or forfeiture against the license, or which would delay or jeopardize PLCB approval of the assignment application to be filed in accordance with Article 4, 7.4 Physical Assets. Seller is selling to Buyer all of the tangible assets of Seller used and useful in the operation of the bar/restaurant/catering business as listed on Exhibit "A". Except as stated herein, Seller has good and marketable title to all these assets, free and clear of all mortgages, liens, encumbrances, and security interests. The use of these assets conforms in all material respects to applicable governmental ordinances, statutes, and regulations, federal, state and local and all physical assets will be operable at Closing. 13 ,..1 _ " ;,_,u", ~_.,_ ~'_'_'__'_ ~" .::L , -- .~:. .--~, '--~ ."".' ~ . ~!;(.;i. , ; '. , ' 7.5 Litigation. No judgment is outstanding, and no litigation, proceedings or investigations are pending, or to the knowledge of Seller, threatened, which might result in any material adverse effect upon the assets of the barlrestaurant/catering business or the PLCB application filed pursuant to Article 4 or which might result in any material adverse effect upon the operation of the barlrestaurantlcatering business or which might question the validity of or might adversely affect any action taken or to be taken pursuant to or in connection with this Agreement, and Seller knows of no reasonable basis for any such litigation, proceeding or investigation. 7.6 Complia~cewith Laws. Seller FernRock-Snyder, Inc., to the best of its knowledge, is in all material respects in compliance with the Pa. LCB Code, rules, regulations and policies and all other applicable federal, state, and local laws including the Bulk Sales Act. 7.7 Absence of Conflicting Agreements or Required Consents. With the exception of the PLCB approval referred to in Article 4 herein, the execution, delivery and performance of this Agreement is not conditioned on or prohibited by, and will not conflict with, constitute grounds for termination of, or result in a breach of the terms of the certificates of incorporation or bylaws of Seller or any contract to which Seller is a party. 7.8 Miscellaneous. No representation or warranty made by Seller in this Agreement and no statement made by it or on its behalf in any certificate, document, list or exhibit furnished in connection with the transaction herein contemplated contains any untrue statement of a material fact or knowingly omits any material facts necessary to full complete disclosure. 14 '~ Jj" - ~ '_J, :~., . ~" 'k ' '.'0 "~.""",,.,J';' hMfJ~~,'k~'" ',' '.1 <<1' The respective representations and warranties made by Seller shall survive the Closing. ARTICLE 8 COVENANTS 8.1 Negative. Between the date hereof and the Closing Date, except as contemplated by this Agreement, Seller will not, without the consent of Buyer, with respect to the purchase assets: 8.1.1 Lims.. Create, assume or permit to exist any mortgage or pledge or subject to lien or encumbrance any o(the purchases assets to be sold, whether now owned or hereafter acquired, except in the normal and usual course of business. 8.1.2 Disposition of Purchased Assets. Sell, assign, lease or otherwise transfer or dispose of any of the purchased assets, whether now or hereafter acquired, except in the normal and usual course of business, or in connection with the acquisition of similar property or assets in the normal and usual course of business. 8.1.3 Employee Matters. Increase the compensation or bonuses payable or to become payable by Seller to any of the employees of the bar/restaurant/catering business except in accordance with existing employment practices, or effect any unnecessary changes in the management, personnel policies or employee benefits of bar/restaurant/catering business. It is noted hereunder that Buyer has no responsibility to Seller's employees. 1 5 ~,..:. ^" m "',' ~-t. ..,.t-,..,,, ". E~ _ ~ E, __ ,','_Jo! '^. J' !-" . 1,1 , , 'l' I . " . 8.2 Affirmative. Seller will, between the date hereof and the Closing Date, d~ the following: 8.2.1 Furnish to Buyer such information concerning the purchased assets to be sold that Buyer may reasonably request. 8.2.2 Maintain the tangible purchased assets of the bar/restaurant/catering business in as good operating condition as existed on the date hereof; reasonable wear and tear excepted. 8.2.3 Maintain in force existing policies of hazard and liability insurance for the purchased assets, which policies provide insurance coverage equal to the replacement value of all property. 8.2.4 Conduct the business and operations of bar/restaurant/catering business in the normal course. ARTICLE 9 REPRESENTA nONS AND WARRANTIES OF Buyer Buyer make the following representations and warranties, all of which have been relied upon by Seller in entering into this Agreement, except as specifically provided, all of which shall be true and correct on the Closing Date as if then made. 9.1 Organization. Buyer McDunk, Inc. is a corporation duly organized, validly existing 16 _. I '~'-"'='WJlh~'-< . ' ""'-, '--, ',.-,;,-,':,-,-- , ,- ,~. .,~ -,' ."" I ,. ia;",,~~~..; --""",' .. " . and in good standing under the laws of the Commonwealth of Pennsylvania and the corporation has full power and authority to enter into and perform this Agreement. 9.2 Authorization. The execution and delivery of this Agreement has been duly authorized by the Board of Directors and Stockholders of Buyer McDunk, Inc. and that this Agreement has been duly executed and delivered and constitutes a valid and binding obligation of Buyer, enforceable in accordance with its terms. 9.3 LitigatiQ~. No judgment is outstanding and no litigation, proceedings, investigations or other actions are pending against any Buyer which might materially and adversely affect the enforcement of this Agreement or the right of Seller to the Escrow Deposit or of the ability of Buyer . to consummate this transaction and Buyer know of no threat of any such litigation, proceeding, investigation or other action. 9.4 Qualifications, To the best of its knowledge, Buyer are qualified to receive the approval of the PLCB required under Article 4. 9.5 Financial Ability. Buyer has financial ability to consummate this transaction as provided in this Agreement. Buyer, McDunk, Inc. Corporation shall provide to Seller statements of its financial statements and corporate federal income tax returns no later than May 1" of each year. Further in the event that a default has occurred in any calendar year which has been cured by Buyer. , Ira 1. McManus and Leslie 1. McManus, his wife and James R Dunkle and Karen 1. Dunkle, his wife, 17 , - i o. Ok ,_ ,.~ .' , .- ~<' .;I't)eJf , , , J I J , < , . , . individually, shall also be required to provide their individual federal tax returns to Seller on or before May 151 for the calendar year of the default. 9,6 Miscellaneous. No representation or warranty made by Buyer in this Agreement and no statement made by it or on its behalf in any certificate, documents, list or exhibit furnished in connection with the transaction herein contemplated contains any untrue statement of any material fact or knowingly omits any material fact necessary to full and complete disclosure. The respective (epresentations and warranties made by Buyer shall survive the Closing. ARTICLE 10 CLOSING DATE AND PLACE The consummation of the transaction provided for by this Agreement (the "Closing") shall take place on a date (the "Closing Date") and at a time mutually agreeable to Buyer and Seller within ten (10) days after the Order of the PLCB granting approval of the assignment of the Restaurant License and Permits to Buyer has become final but in no event, later than May 1, 1999. Time is of the essence in Closing. Closing shall occur at the office of Barbara Sumple-Sullivan, Esquire, 549 Bridge Street, New Cumberland, Pennsylvania. ARTICLE 11 CLOSING DOCUMENTS 11.1 INSTRUMENTS AND DOCUMENTS SELLER On or before the Closing Date, Seller shall have delivered to Buyer the following " 18 -," , -I.' ~'," k..," , :,L. i",,~~ ~~~""- < instruments and other documents, all of which shall be in form reasonably satisfactory to counsel for Buyer: 11.1.1 Resolution. Certified resolutions of the shareholders approving the sale and certified resolutions of the Board of Directors of Seller FernRock-Snyder, Inc. authorizing the execution and performance of this Agreement. The resolution of Seller shall specifically authorize Seller to sell all of the assets listed in Article 1 above. 11.1.2 Bill of Sale. A bill of sale for all the personalty sold pursuant to Article 1 hereof. 11.1.3 Certificate of Title and Warranties. All certificates of title and manufacturers' or dealers' warranties, if any, covering the property sold. 11.1.4 Assignment of Intangible Assets. An assignment of the intangible assets sold pursuant to Article 1.4, including a transfer of the fictitious name, 11.1.5 Certificate, A certificate signed by the President or Vice President of Seller and the representations and warranties of Article 7 are true and correct in all material respects and that Seller has complied with the covenants of Article 8. 11.1.6 Bulk Sales Act. Evidence satisfactory to Buyer's counsel of Seller's satisfaction of the Bulk Sales Act. 19 .~ -"'".' . ~, ~ I' .,.~..,'., "'-~j@rlJ~',- ',' " , , t' " 11.2 INSTRUMENTS AND DOCUMENTS Buyer. On or before Closing Date, Buyer shall have delivered to Seller the following instruments and documents, all of which shall be in form reasonably satisfactory to counsel of Seller. 11.2.1 Payment. Payment of the initial cash consideration of FORTY -FIVE THOUSAND ($45,000.00) DOLLARS envisioned by Article 1. 11.2.2 Securi~ Agreements. All documents necessary to perfect the security interests, pledge of stock, and asspent ofleases contemplated by Article 3 hereof. 11.2.3 Capital Stock. Capital Stock in the registered form as per Articles 3.2 and 3.3 of this Agreement. 11.2.4 COI:porationBvlaws. Copies of corporate bylaws certified by its Secretary certifYing the corporation's action are authorized and the Corporation is in good standing. ARTICLE 12 COSTS AND EXPENSES Except as otherwise specifically provided herein, Seller and Buyer shall each bear their own legal fees and other costs and expenses with respect to this transaction. All broker fees shall be paid by Seller. 20 ~i : ~_ _ : ^' _ ~c ' J< ~ " 'i;n," , , . , . , " ARTICLE 13 RISK OF LOSS DAMAGE TO FAnT,IT1ES 13.1 !,Jm. The risk ofloss or damage to any of the purchased assets shall be upon Seller prior to the Closing and thereafter upon Buyer. 13 2 Damage. In the event of any damage, destruction or loss to any of the purchased assets prior to the Closing Date, Seller shall take immediate steps to repair, replace and restore the damaged, destroyed or lost property to its former condition. In the event that the property is not completed repaired, repl.aced or restored on or before the Closing, Buyer may elect to postpone the Closing Date until such time as the property has been completely repaired, replaced or restored. Buyer agree to postpone Closing only in the event that equipment and damaged or destroyed substantially and materially effect the operation of the bar/restaurant/catering business, as determined by Buyer. If such property has not been completely repaired, replaced or restored within a period of four (4) months after the Closing Date established herein prior to any postponement under this Article, and if at that time Buyer are not willing to close on the terms provided below in this Article, either Buyer or Seller may, by written notice to the other, cancel and terminate this Agreement, in which event the Escrow Deposit will be returned to Buyer. In the alternative, Buyer may elect to consummate the Closing on the Closing Date or at any time during the postponement pursuant to this Article and accept the property in its then condition in which latter event, Seller shall assign to Buyer all Seller's right under any insurance or pay over to Buyer all proceeds of insurance covering the property damage, destruction or loss, In the event Buyer elect to postpone the Closing Date as provided above, Seller and Buyer will cooperate to extend the time during which this Agreement must 21 - j.- -.<) " ~ "1--, .,~ .. 'J!l1#-J: " .' , be closed as may be provided by Article 10 hereof to permit a Closing on the extended Closing Date and Seller shall use its best efforts to repair, replace and restore the dama,ges, destroyed or lost property to its former condition as promptly as possible. ARTICLE 14 INDEMNIFICATION 14.1 Rights of Parties. Seller shall indemnify and hold Buyer harmless and Buyer shall indemnify and hold Seller harmless from any and all claims, liabilities, dama,ges, losses, costs, expenses and other obligations of every kind and every description, contingent or otherwise which arise out of any breach of their representations, warranties, or covenants contained herein or any certificate or other documents delivered hereunder, or which accrue from the conduct and operation of the business of the bar/restaurant/catering business while it was controlled by the indemnifying party other than those claims, liabilities, dama,ges, losses and costs which result solely from the party's own specific act of omission. This indemnification shall ~c1ude holding the other harmless for any and all costs, including attorney fees and costs, associated with defense of any. claim or cause of action including all costs and expenses, including attorney's fees, for enforcement of this indemnification. 14.1 Condition Precedent. As a condition precedent to indemnification against the claims of third parties, the indemnifying party shall be given written notice of any claims in sufficient time to allow the party an opportunity to defend or compromise the claim at its sole expense. 22 -- ;;j , '"-1 1~ ;', "","__ =lIlIilW".i- "~~':l~_,"l~,; " , , , , . ARTICLE 15 COVENANT NOT TO COMPETE Seller's principal, Fern 1. Wilson, shall sign a Covenant Not to Compete in the form set forth as Exhibit "C" attached herein at Closing. ARTICLE 16 CONSULTING AGREEMENT Buyer agree to enter into a consulting agreement with Seller's principal, Fern 1. Wilson. Pursuant to such agreement, Fern 1. Wilson agrees to provide such personal guidance and assistance to the Buyer for a period not to exceed one month following Closing. Seller's principal, in accordance with the terms of the Agreement set forth as Exhibit "c" shall also provide telephone consultation to Buyer for an additional (120) days period. ARTICLE 17 NOTICES All necessary notices, demands, and requests shall be deemed duly given when personally delivered or three (3) days after being mailed by registered or certified mail, postage prepaid, and addressed as follows: TO Buyer: McDunk, Inc. 23 -~ . '- " ,'.,:j .'"",'.' , " .l -(j"n-~"if.:; , . , ' " , . Copy to: Anna Marie Sossong, Esquire Skarlatos & Zonarich 204 State Street Harrisburg, P A 17101 TO SELLER: Fern 1. Wilson, President FernRock-Snyder, Inc. 68 Cumberland Road Lemoyne, P A 17043 Copy to: Barbara Sumple-SuIlivan, Esquire 549 Bridge Street New Cumberland, PA 17070 ARTICLE 18 BENEFIT AND ASSIGNMENT This Agreement shall be binding upon and insure to the benefit of the parties hereto, their successors and assigns. This Agreement may not be assigned by Buyer without the consent of Seller. ARTICLE 19 ENTIRE AGREEMENT This Agreement and its exhibits, all of which are incorporated into and made a part hereof, embody the entire agreement and understanding between the parties with respect to the subject matter hereof, and supercede any prior understanding whether written or oral between the parties hereto. Only this Agreement, its exhibits and the documents delivered pursuant thereto may be relied upon to establish the respective rights and obligations of the parties. 24 _ o,,~, " " , , " " ~'1--~ L, , . -",,,J ~- "~''J~f " , , . . , , , " ARTICLE 20 CHOICE OF LAW This Agreement shall be construed and governed in accordance with the laws of the Commonwealth of Pennsylvania. ARTICLE 21 COVENANT OF FURTHER ASSURANCES After Closing, Seller and Buyer, upon request of the other, shall take such other action and execute and deliver such other instruments as may be reasonably necessary to assure, complete, and evidence the full and effective sale and assignment of the purchased assets pursuant to this Agreement. IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the day and year first above written. ATTEST: \ JAA-~ U ' Secretary R: c! e&!~ (SEAL) ATTEST: BUYER: , Secretary ~Inc. President (4AL) '7i2r., (J'l c f?7 ff1V' lr J' t./ r! 25 . ,~ 'M"- :j. "~, . '~"''''~J,",ci.: " " , , GUARANTEE AND SURETY AGREEMENT IRA 1. McMANUS and LESLIE 1. McMANUS, his wife and JAMES R. DUNKLE and KAREN 1. DUNKLE, his wife, joint in this Agreement to guarantee and become surety for the full and timely payment of principal, interest, and any and all other sums and obligations of any nature whatsoever which are due or which become due at any time or in any manner to Seller, its assigns or FERN 1. WILSON, individually, under or in connection with this Asset Purchase Agreement, and for the full and timely payment of any and all obligations, sums or liabilities of any nature whatsoever, whether direct or indir~ absolute or contingent, voluntary or involuntary, and whether past, present or future, now due or to become due, from Corporation to FernRock-Snyder, Inc. or its assigns (the "Obligations") under the Asset Purchase Agreement, including by maturity or acceleration, without notice or demand or set off, counterclaim or deduction of any kind. This Agreement is a continuing, absolute and unconditional guaranty and suretyship of payment and not merely of collection. The obligations of Guarantors hereunder are joint and several and are independent of the obligations of Corporation and any other guarantor or surety for the Obligations, and of the availability of any collateral or security for the Obligations. Guarantors are liable to FemRock-Snyder, Inc. or its assigns hereunder, pursuant to the Asset Purchase Agreement and FernRock-Snyder, Inc. or its assigns may enforce its rights and remedies hereunder against Guarantors, or any of them in any combination, at any time and from time to time, whether FemRock-Snyder, Inc. attempts to enforce or enforces FernRock-Snyder, Inc,'s rights and remedies against Corporation or any other guarantor or surety for the Obligations, or whether FernRock- Snyder, Inc. joins Corporation in any enforcement action or proceeding, or whether FernRock- 26 ;-Ie !,__~;;_'o> _ -;- . ~; I' , , , . , , , Snyder, Inc. first proceeds to liquidate or realize on any collateral or security for the Obligations, Guarantors hereby voluntarily, intelligently, knowingly and unconditionally waive (a) all notices to which Guarantors may be entitled but which may legally be waived, including without limitation notice of (1) acceptance of this Agreement, (ii) any obligation incurred at any time by Corporation under or in connection with the Obligations, (ill) nonpayment, protest, dishonor or default; and (b) presentment for payment, demand for payment, and protest; and ( c) any defense available to Corporation; and (d) any defense or circumstance which might constitute a legal or equitable discharge of a,guarantor or surety. GUARANTORS HEREBY VOLUNTARILY, KNOWINGLY, INTELLIGENTLY AND IRREVOCABLY WAIVE ANY AND ALL RIGHTS GUARANTORS MAY HAVE AT ANY TIME (WHETHER DIRECT OR INDIRECT, OR BY OPERATION OF LAW OR CONTRACT, OR OTHERWISE) TO ASSERT ANY CLAIM AGAINST CORPORATION ON ACCOUNT OF ANY PAYMENT MADE UNDER TInS AGREEMENT, WHETHER BY OR FOR SUBROGATION, REIMBURSEMENT, EXONERATION, CONTRIBUTION, INDEMNITY OR OTHERWISE. This Agreement and Guarantors' payment obligations hereunder will remain in effect if at any time any amount paid under or in connection with the Obligations is rescinded or recovered by any persons or entity, or ifFemRock-Snyder, Inc. or otherwise becomes liable to or does repay, restore or return any such amount, to the same extent as if such payment had not been made, and notwithstanding any tennination or cancellation of the Obligations or this Agreement, both of which shall be deemed to be reinstated even following any such termination or cancellation for purposes of 27 '""1-'< I: -""" - ~ .' ~ " 'r , , . ' . . continuation of Guarantors' liability hereunder. FernRock-Snyder, Inc. 's determination as to whether to repay, restore or return any payment shall be binding on Guarantors. Guarantors hereby agree to payor reimburse FemRock-Snyder, Inc, for any and all out-of- pocket costs, expenses and fees at any time incurred or paid by it in the administration, enforcement or collection of Guarantors' obligations under this Agreement, including without limitation reasonable attorneys' fees. If the Corporation is in default, Guarantors will provide such financial information as FemRock-Snyder, Inc. may from time to time request, including federal income tax returns and schedules, and balance sheets and income statements in form and content satisfactory to FemRock- Snyder, Inc. GUARANTORS HEREBY VOLUNTARll.Y, INTELLIGENTLY AND KNOWINGLY EMPOWER THE PROTHONOTARY OR ANY ATTORNEY OF ANY COURT OF RECORD TO APPEAR FOR GUARANTORS AND TO CONFESS JUDGMENT FOR ONE HUNDRED FIFTEEN THOUSAND ($115,000.00) DOLLARS AND ATTORNEYS' FEES EQUAL TO TEN (10%) PERCENT OF SUCH AMOUNT, AND COSTS OF SUIT, WITHOUT FILING A COMPLAINT, OR, BY FILING A COMPLAINT OR COMPLAINTS FROM TIME TO TIME, FOR ANY OR ALL OTHER AMOUNTS AS OR AFTER THEY BECOME DUE UNDER THE OBLIGATIONS OR HEREUNDER, INCLUDING WITHOUT LIMITATION ANY PERIODIC PAYMENTS, THE ENTIRE BALANCE OF PRINCIPAL DUE OR PAYABLE, LATE CHARGES, INTEREST, EXPENSES AND FEES, COSTS OF SUIT AND ATTORNEYS' FEES EQUAL TO TEN (10%) PERCENT OF THE TOTAL OF ALL SUCH AMOUNTS, 28 ..if " . ..,j _'0'_' __~ ->1.. _ ,__.:~, , . > 'c l<!\.._ t,' ., . ' GUARANTORS HEREBY RELEASE ALL ERRORS OR DEFECTS IN ANY SUCH ACTION AND THE ENTRY OF ANY SUCH JUDGMENT, AND WAIVE ALL LAWS EXEMPTING Witness ~ PIZer ~4\ R.Dunkle 4/2/'" L 7LfJbIJ~ /~/ Karen 1. Dunkle Witness 29 , , , .. . I . EXHIBIT "A" "-~ r j_~.I0,,"'f , . , . :'~ " " '--.,', , , ' '- ".- I...~" ." ",' + f."~~::.;.~~"..~:~-'_..:'_.~'-.-.~....--...-_'1"i-~~-:-~ ,. ,- - .,~ -. ".- ..........~~ ,~ . I :;..XegJQiJl~!lEl,~14:52 '1l'7'-7d-ga~. . " " "~;.' . ~""*:'-' . . . ",cl__~,,_,',';"~ -- ~';~;','" -0' -~--':":"'"'-"J - ~. hi.-'a!t'~", . -~~:'~~;-:---:'. c~CIR lei )llERlCA ':~.-:-.~,_. . -;"'(' ,'.':.~;I .. , . PAGE , 114 EQUIPMENT LIST Di.shwasher - Jackson - high le~peiature 1 rack slide through wI SS table W~.i/l Freezer.; 6'X 6' wirb sbclviQg . Walk-:in CooJer - 9'X 11' with sbc1ving 20 Quan BlUesJee mixer With S8 floor stand on wheels 2 StackiQg Bakers Pride Convection Ovens Mereu ~clving " various sizes, S units :\ Sty SS. Pot Sink , ~S Work Tables - 1 @ 4'X 2.5', I @ 6'X 2.5", I @ 3.5'X 2.5' with wheelll ? Under Counter Froezers : I Under Co~ Reftjicrator " ? 6' Cowller1icigbt'Refij&e~tor Units - I witH divided bins in top 2 Bu... Cans . 1 SS, I Rlibbennaid ; 1 Cooler Cor bottled witer. .. Cleveland Sle8mer - Steamcraft 3.1 with S8 table Sandwich Unit - Bev Air . S' S8 on wheola StQMltable 6' S Bay SS (1 BlIY not woiXing) Garland Broiler - IIPriJ.l1t with top oven woHdng off broiler, "' " seperate liOttom oven Vulcan Stove. 6 Burner +, Griddle Top 2 Conv~uon Ovens on bottom - unit on wheels Ueep Fryer - 40 Qt. Wells - floor model Reach-in Refrigerator - Victory - 1 door SS Reach-in Refri&crator .. Randell - 2 door 8S ~n wheels . (still under warranty) Globe Slicer.. gravity feed ' 12 case HI0 can cart SS top, on wqeels 600# IIoshiUki Ice Miker with 4ClO# storage bin Bakers Cart for 12lrays . Fax Machine Sharp FO-330 with seperate line Catering Supplies . Numerous Chafers, Insulated Hot Baltes, Trays. Bowls 6' Mobil Gas Grill w/2 50# propane tanks . ".. '. ~:;:.MI1l1~B 7f~"l?""":': ~ ~::-- , . . ,;;. ,."\ "c '_j.-,._ _ ,_ ,.c,._ :"":'_'_. J,_. . 14:52 71j-/D.&.-~QQ~.' ....,'. . .'" , 1 '1 ......... .-.. ,--- , , . ,- " .' .-'~' -' ~ . '-A, 'I)rnught Beer System - 6 SlUgat - Remote Keg Cooler in basement - 6'X 12' 2 Perlick Bottle Coolers - 1 @ 4.5' I 1 @ 6.S' ~ QIIY Siqk with Ic:.e .B~ on either end S.erslble BaiMaid Glass Washer OMRON as 18 Cash Register. ongoing maintenance contract DiSplay Beer C:9?ler . BevAir 3 door. 6' on wheels ColorTrnc TV 1ftjJJ) Waitres.'l Station.. 4' Clff'ttfl{/\a.oL WMJIM . iZ. Gas Dryers . May tag - commercial TBEL SumpPWllp (never used - gas powered) Various extra tables and chairs" Copier MITA DC-I2SS Floor Safe - Sentry Value guard 2 File Cabinets Cppy/#J {J./lkJ/-/.tL Plymouth Gran Voyager 1990, Cell Phone, AC _ ,_ ._.____ ,_-' -- " _H_ . .." " "~C~- . bel' b' /f, u.dJI '~ 1,/1 Items m)l oogIng to usmess: / ~"'12 "' to " "'vrr V..vnCJI/' Soda SYI1c. m ."& Dispensing Gu~ A.'~ l ~~v V)Ad P'I_-' Coffee Michipes . - e> n L~rvm . .." It '/ ..' .. Water Softener - L.taJecQ , ,. .:. " . ~ ~ , ',1. ',," , . ~ I _ ,.0, _,"" ,. '.,d ,,~ ~"'~'""*;"';, , , " , . EXHIBIT "B" ..~ i -'. . i _, ,~ '"-~'~'..",< . i' . .. ., .. '. @ (>; ., . I .-.... ,. ':.:..- -<if 06 1999 Page 1 . Femruck-Snyderto McDunks, Inc. Compound Period .......: Monthly Nominal Annual Rate ...: 5.250 % Effective Annual Rate.. : 5.378 % Periodic Rate .............. : 0.4375 % Daily Rate .................. : 0.01438 % CASH FLOW DATA Event Start Date Amount Number Period End Date 1 Loan 06221999 115,000.00 1 2 Payment 0701 1999 . 774.92 84 Monthly 06 01 2006 3 Payment 07 01 2006 87,352.69 1 AMORTIZATION SCHEDULE - Normal Amortization Date Payment Interest Principal Balance Loan 06 22 1999 115,000.00 1 0701 1999 774.92 148.87 626.05 114,373.95 2 0801 1999 774.92 500.39 274.53 114,099.42 3 09011999 774.92 499.18 275.74 113,823.68 4 10011999 774.92 497.98 276.94 113,546.74 5 11011999 774.92 496.77 278.15 113,268.59 6 1201 1999 774.92 495.55 279.37 112,989.22 1999 Totals 4,649.52 2,638.74 2,010.78 7 01 01 2000 " 774.92 494.33 280.59 112,708.63 8 02 01 2000 774.92 493.10 281.82 112,426.81 9 03 01 2000 774.92 491.87 283.05 112,143.76 1004012000 774.92 490.63 284.29 111,859.47 11 05012000 774.92 489.39 285.53 111,573.94 12 06012000 774.92 488.14 286.78 111 ,287.16 13 0701 2000 774.92 486.88 288.04 110,999.12 14 0801 2000 774.92 485.62 289.30 110,709.82 1509012000 774.92 484.36 290.56 110,419.26 16 1001 2000 774.92 483.08 291.84 110,127.42 17 11012000 774.92 481.81 293.11 109,834.31 1812012000 774.92 480.53 294.39 109,539.92 2000 Totals 9,299.04 5,849.74 3,449.30 19 0101 2001 774.92 479.24 295.68 109,244.24 20 02 01 2001 774.92 477.94 296.98 108,947.26 21 0301 2001 774.92 476.64 298.28 108,648.98 22 04 01 2001 774.92 475.34 299.58 108,349.40 23 05 01 2001 774.92 474.03 300.89 108,048.51 24 06 01 2001 774.92 472.71 302.21 107,746.30 25 07 01 2001 774.92 471.39 303.53 107,442.77 26 0801 2001 774.92 470.06 304.86 107,137.91 . " ''1 ~,~ "- t'- " . '.' --i . - '^' --,- , "",,',k-,,", ""J -" ~:l!i..*~~' , , t , I , CD 0)7 06 1999 , "-.. , , '--' Page 2' Fernrock-Snyder to McDunks, Inc. Date Payment Interest Principal Balance 27 09 01 2001 774.92 468.73 306.19 106,831.72 28 10012001 774.92 467.39 307.53 106,524.19 29 11 01 2001 774.92 466.04 308.88 106,215.31 30 12012001 774.92 464.69 310.23 105,905.08 2001 Totals 9,299.04 5,664.20 3,634.84 31 01 01 2002 774.92 463.33 311.59 105,593.49 32 02 01 2002 774.92 461.97 312.95 105,280.54 33 03 01 2002 774.92 460.60 314.32 104,966.22 34 04 01 2002 774.92 459.23 315.69 104,650.53 35 0501 2002 774.92 457.85 317.07 104,333.46 36 06 01 2002 774.92 456.46 318.46 104,015.00 37 07 01 2002 774.92 455.07 319.85 103,695.15 38 08 01 2002 774.92 453.67 321.25 103,373.90 39 09 01 2002 774.92 452.26 322.66 103,051.24 40 1001 2002 774.92 450.85 324.07 102,727.17 41 11 01 2002 774.92 449.43 325.49 102,401.68 42 1201 2002 774.92 448.01 326.91 102,074.77 2002 Totals 9,299.04 5,468.73 3,830.31 43 01 01 2003 774.92 446.58 328.34 101,746.43 44 02 01 2003 774.92 445.14 329.78 101,416.65 45 03 01 2003 774.92 443.70 331.22 101,085.43 46 04 01 2003 774.92 442.25 332.67 100,752.76 47 05 01 2003 774.92 440.79 334.13 100,418.63 48 06 01 2003 774,92 439.33 335.59 100,083.04 49 07 01 2003 774.92 437.86 337.06 99,745.98 50 08 01 2003 774.92 436.39 338.53 99,407.45 51 0901 2003 774.92 434.91 340.01 99,067.44 52 1001 2003 774.92 433.42 341.50 98,725.94 53 11 01 2003 774.92 431.93 342.99 98,382.95 54 1201 2003 774.92 430.43 344.49 98,038.46 2003 Totals 9,299.04 5,262.73 4,036.31 55 01 01 2004 774.92 428.92 346.00 97,692.46 56 0201 2004 774.92 427.40 347.52 97,344.94 57 03 01 2004 774.92 425.88 349.04 96,995.90 58 04 01 2004 774.92 424.36 350.56 96,645.34 59 05 01 2004 774.92 422.82 352.10 96,293.24 60 0601 2004 774.92 421.28 353.64 95,939.60 61 0701 2004 774.92 419.74 355.18 95,584.42 62 08 01 2004 774,92 418.18 356.74 95,227.68 63 09 01 2004 774.92 416.62 358.30 94,869.38 64 1001 2004 774.92 415.05 359.87 94,509.51 65 11012004 774.92 413.48 361.44 94,148.07 66 1201 2004 774.92 411.90 363.02 93,785.05 2004 Totals 9,299.04 5,045,63 4,253.41 ~~._~ "' ..J I" 1" . . ' .....~ " ,~'" , , , , . . .. '. '"' , , ' Q R ' . . ":'--..... '-07 06 1999 I?age 3. F=emfock-Snyder to McOunks, Inc. Date Payment Interest Principal Balance 67 01 01 2005 774.92 410.31 364.61 93,420.44 68 02 01 2005 774.92 408.71 366.21 93.054.23 69 0301 2005 774.92 407.11 367.81 92,686.42 70 04 01 2005 774.92 405.50 369.42 92,317.00 71 05 01 2005 774.92 403.89 371.03 91,945.97 72 0601 2005 774.92 402.26 372.66 91,573.31 73 07 01 2005 774.92 400.63 374.29 91,199.02 74 0801 2005 774.92 399.00 375.92 90,823.10 75 09 01 2005 774.92 397.35 377.57 90,445.53 76 1001 2005 774.92 395.70 379.22 90,066.31 77 11012005 774.92 394.04 380.88 89,685.43 78 1201 2005 774.92 392.37 382.55 89,302.88 2005 Totals 9,299.04 4,816.87 4,482.17 79 01 01 2006 774.92 390.70 384.22 88,918.66 80 02 01 2006 774.92 389.02 385.90 88,532.76 81 0301 2006 774.92 387.33 387.59 88,145.17 82 04 01 2006 774.92 385.64 389.28 87,755.89 83 05 01 2006 774.92 383.93 390.99 87,364.90 84 06 01 2006 774.92 382.22 392.70 86,972.20 85 07 01 2006 87,352.69 380.49 86,972.20 0.00 2006 Totals 92,002.21 2,699.33 89,302.88 Grand Totals 152,445.97 37,445.97 115,000.00 .,,'-~-""- ..... '" ;. 'I I o "'1 ,'c_ 1......- '- .. -<-"io-; ,'''-'J , R \,-67061999 Page 4, Femrock-Snyder to McDunks, Inc. Last interest amount decreased by 0.01 due to rounding. , . . " " '" EXHIBIT ).,;,J "e" -~~ I . " -',. ",';.-:" _',1: ''''''~'"'-~'-~"'-~t;~ E '/ I I, , , , , , , ' , , . . EXHIBIT "C" NON-COMPETITION AND CONSULTING AGREEMENT THIS AGREEMENT made this day of ,1999, by and between FERN 1. WlLSON, of New Cumberland, Cumberland County, Pennsylvania and McDUNK, INC., a Pennsylvania corporation (hereinafter referred to as "Buyer"). WITNESSETH: WHEREAS, Fern 1. Wilson is the principal ofFernRock-Snyder, Inc.; WHEREAS, Fern 1. Wilson and FernRock-Snyder, Inc., have entered into agreements for sale of real estate and certain business assets used and useful in: operation of a restaurant, bar and catering business known as Pete's Cafe; WHEREAS, McDunk, Inc. recognizing Fern L. WIlson to be a competitive force in the food service industry, desire to secure a noncompete from Fern 1. Wilson, as well as enter into a consulting agreement with Fern 1. Wilson for her services; NOW, THEREFORE, the parties, intending to be bound do agree as follows: ~fI:.J!~'0___ ~~~. p . l , ";; I," J__. ','J" ~,,~ -. - -, - ri', ,'. , " . 1 , . ,... . , ~ '~ . . 1. Non-competition Clause. Fern 1. WIlson shall not, directly or indirectly, except as set forth herein or by mutual agreement of the parties, acting alone or in conjunction with others: (a) Work as director, officer, employee, partner, shareholder (or in any other capacity) (except for Buyer) in any bar (whether same serves food or not) and any catering and restaurant business providing food services within a twenty (20) mile radius of 40 1- 403 Market Street, New Cumberland, for a period of three (3) years from closing; and (b) Perform c~tering to any existing accounts of Pete's Cafe, FernRock-Snyder, Inc. or Fern 1. Wilson, individually, for a period of three (3) years from the date of this closing. 2. Acknowledgment of Harm from Violation of the Non-Competition Clause. The parties acknowledge and agree that irreparable injury will result if Fern 1. Wilson or FernRock- Snyder, Inc. breaches this noncompetition covenant. The parties therefore agree that, in the event of any such breach, McDunk, Inc. shall be entitled to all available remedies and damages at law or in equity, including, without limitation, an injunction to restrain any violation of the noncompetition covenant by Fern L. Wilson or any individuals acting for or with her. Fern 1. Wilson agrees that the time, area, and business restrictions in this noncompetition covenant are reasonable. 3. Compensation. Upon signing of this Agreement, Buyer shall pay to Fern 1. Wilson the sum of FIVE THOUSAND ($5,000.00) DOLLARS. Draft ,3/12199 2 ~",#"'p, I' n , 1 . , . . '" ,'i, , ' , " , . . 4. Consulting Ret;j,uirement Fern 1. Wilson a,grees to personally provide guidance and assistance to the principals ofMcDunk, Inc., in the operation of Pete' s Cafe as it shall request for a period not to exceed four (4) weeks. Fern 1. Wilson shall further agree to provide telephone assistance to Buyer, as it requests, for an additional three (3) month period beyond the termination of her on-site personal consulting. IN WITNESS WHEREOF, the parties hereto, intending to be legally bound, hereunto set their hands and seals the day and year first above written. WITNESS: (SEAL) Fern 1. Wilson , Secretary (SEAL) ATTEST: Draft 3/12199 3 . ~; -; " ' ~ J , " EXHIBIT "D" ,<, ), ~- ~,,-f .'-";""'~ '-'0/.'_; '>0" ,~'." ';: "~, "j-;~ -~~j .. --...L'" - " ~->. ";_f,n, _, _ <_. _ ',l , ;I~ ' . __;/;~J'~",,,,-,-,-,-,,_;j' ~":;',/_;:i'<> ~ ~, I~: , , . If' 401.403 Market Street. Pete'. Cafe Repairs Required A. Outside: 1. Outside lock/latch on dining room door is missing. Duct tape was covering the hole on the door where the lock was removed. 2. The hinges to the cellar door are busted off. 3. The Heat pump/central air unit to the dining room was ripped out and found bent up in the back yard. B. Basement: 1. May tag commercial dryer, control box missing. C. Office: No inspection was able to be performed. Cannot verify what is actually there, its condition or missing. D. Dining Room Ladies Room: 1. The sink in the ladies room needs to be repaired. E. Dining Room: 1. The small antique mirror is missing. 2. The 3-section antique mirror is missing. 3. There is no central airlheat pump. F. Kitchen: 1. Two (2) fluorescent fixtures are not working. 2. The hood needs to be cleaned in order to pass inspection. 3. Three (3) grates to stove are missing. 4. Sandwich unit is not working. 5. The salad unit is completely destroyed, disassembled and not operable. 6. The walk in cooler temperature needs adjustment. 7. The walk in freezer is not working properly. 8. The Jackson dishwasher needs repairs. 9. The small commercial microwave was replaced a with household unit suitable for a home. 10. China missing. For minimal operation, replacement must be made of large white oval platters, large white pasta bowls, salad plates, food storage containers plus lids, and an adequate amount of silverware. G. Storage Unit: 1. Hoshisaki lee Machine is not harvesting ice. 2. Shelf unit missing. H. Bar Room: 1. Large TV in corner removed. 2. Ceiling panels need to be replaced or professional cleaned. , ~. 1';_,_<1_ i .... 71773~Sl.e.'::> ; ',J) .1 , :.., -" ,.c;,~: '-." ""'-,o}.: " '-~ ~'" , 06:<54 A,., ADVAHCED COHTRACTIHG SVS ~ , <*' ADVANCED CONTRACTING SERJ1CES, INC. P. O. BOX 3019 SHIREMANSTOWN, PA. 170// 717. 731J-9/39 PHONE/FAX May 1.1.2001 rem Wilson Pete's Caic 40 I Markel Strcct "Iew Cumberland, Pa 17070 Re; Walk through inspection Dear Fern, Per your request, here are some preliminary co!\ts for equipment repairs from Ollr inspection (>n MlIY 11, 200 I, I. Salad Dteo\.'>ing RefrigeralM a Refrigeranl sight glass showing moisture in syslem b, Pressure control nangingloQse in compressor compartmenl e Evaporator coil apart and hanging inside box d. T\lbing is oil coated - possible refrigeranr leak e Condenser coil needs cleaned Approximate eosl ofrcpairs: $525.00 2" Sandwich refrigerator a. Compre!isor stuck - will not sian - needs replacted b. Condenser coil needs cleaned - Approximate COSl of repairs' $630,00 3, Randell 2-door Rerrigcralor a C ondc:m~er coiln",,,,d.. c\",an",d b. Set-up temperature Approximate COSI orrepajr~; $45.00 ~~,~ ./ " "'" .~ "- ". ~c<i -, :,L-, . r:."" -01'- 0S :'35' 'AM .ADVAN'cED CO.NTRACT I He:; SVS 7177~e~.1,39. ' P.0:3 '- . r- Fern Wilson Pele's Cafe Page two 4, Desser Rehgerator a. Condenser coil necds cleaned b" Rcmount loose condensing lint e" Set-up temperatllres Approximate cost ofn:pair~ $95,00 5, Walk-In Cooler a. Evaporator coil needs cleaned b. Set-up tempt'1'2tures Approximate etlS! of repairs: $45"(,0 6. Walk-In Frce7.cr a, E vaporator fan~ shut down when unit cycles - possible emma! problems b Set-up temperatures Approximat c cost of repairs $105 00 7 Victory Upright Refrigerator a. Condenser coil needs cleaned b, Ice hanging In box c. lee on suction linc back to compressor possible refrigerant charge problem or control problem Approxirnate C(ISt of repairs " $145.00 8" Kitchen flY.4.(' unit a, Air fillers need replaced b Blower bell needs replaced c 8roken condensate pipe on unit d. Blower molor adjustment bracket broken Approximate costllrrepairs. $175"00 C) Hllshi"aki [c.e Machine a Unit runs but docs not appear to make ice Approximate cost of repairs; $275.00 ,'""","",- I j, ~.. l)' - . . -01 0e;~6 AM ADVANCED CONTRACTING SVS 7177~09139 . ~ ~ Fern Wilson Pete's Cafe Page three 10 Dining Room Ilealpump a" Condensing unit eUI!QOSe and sitting in back yard b" Control compartment and compressor opcnlo weather c, Compressor needs replaced - open winding d Refrigeranllineset kinked at wall - needs replaced e Indoor air handler not running at this time Approximate Cosl of repairs: $1850,00 Please IKltC: Duc to tlle condilion and age of system, \Ioe recOlllmend t,'tal s)'st"m replacement. This cost is $3425,00 The above lepair cost$ are estimates un]y !Tom a vi$ual inspection orlhe equipmelll" These costs !Ilay vary when actual diall"ostic time is spent on equipmcnt repairs. (fyou have any questions. please feel free to call me. Thank yOl!, ~1 "~l' './t-'<-----. Greg Gibson ~'-'~'--~ ,-. ,"",-, .,~ """';'-~'_'~f~~ P.04 .I ~ "'~~ ,L '."",^ - ,',- ~-, ~ - ~~~~;-. -"""",,~,~ .'~~-' . , " ". , , ,r ,.' .1 Creative Construction by Windows & More, Inc. John L Ragonese P7esideIlt 541 Bridge Street New Cumberland. PA 17070 Telephone (717) n~ Fax (717) n4-7191 WWN.windoWsandmoreinc.can May 17, 2001 Pete's Cafe 401 Market Street New Cumberland, PA 17070 774-7273 Wmdows & More, Inc. will provide all labor and materials to do the following repair work on the 2nd floor apartment at the above address: Kitchen - 17' x 9' (153 sq ft.) * Insta1I drop ceiling. * Re-install washer, dryer, electric stove and refrigerator. * Insta1I 2 fluorescent lights in ceiling. * Run 6 pcs. of electric. * Install a new vinyl floor with underlayment. Allowance $425.00 for flooring. * Paint entire room and trim. Dining Room - 11.5' x 13.5' (155.25 sQ. ft.) * Install a new drop ceiling in room. * Hang and finish new drywall on all walls. * Run electric for 4 outlets in walls. * Install new carpeting in room (17.25 yds.) * Paint entire room and trim. , " , . 2 - Pete's Cafe Bedroom - 13 .5' x 10' (135 sq ft.) * Install new drop ceiling in room * Hang and :finish new drywall on all walls. * Run 4 pes of electric. * Install new door and trim into room * Install new door and trim to closet. * Install new trim on window. * Paint entire room and trim. Hal1wllY - 28.5' x 3.5' (99 75 sq. ft ) * Install new drop ceiling in hallway. * Re-affix: heater to the wall and paint hallway walls. Bathroom - 5 5' x 11 5' (74.25 sq. ft ) * Install new drop ceiling. * Install new vanity. * Install new marbleized sink top and faucet. * Install new 1.6 gallon commode and seat. * Install new medicine cabinet with light. * Hang and :finish drywall in entire room. * Install new window and door trim. * Install 1 fluorescent ceiling light. * Install 5 pes. of electric * Paint entire room. fl . .. tl' " ~ .d, ,~ <--J ijl~-,: '''~, .c' - "^,,-;c", ;;, ,-,",<, J' III " "',1);,. -I I, I , ." IJ' . r " j' 3 - Pete's Cafe In restaurant area * Replace a piece of glass in door - approximate size 6" x 31". * Install 6" fiberglass insulation in ceiling behind walk-in refrigerator - approximately 180 sq. ft. Remove all job related debris from job site. T otal...........................................$17 ,408.00 If you should have any questions, or need further information, please let me know. EiiJ-~ ~/7 :I John 1. Ragonese ~~ i!,,;,,:<:' Cf . . , ( ". .. Il' . Barbara Sumple-Sullivan, Esquire Supreme Court #32317 549 Bridge Street New Cumberland, P A 17070 (717) 774,1445 FERN L. WILSON and FERNROCK-SNYDER, INC., Plaintiffs : IN THE COURT OF COMMON PLEAS : CUMBERLAND COUNTY, PENNSYL VANIA v. : NO. McDUNKS, INC., IRA J. McMANUS, JR., LESLIE 1. McMANUS, KAREN L. DUNKLE, and THE ESTATE OF JAMES R. DUNKLE, Defendants : In Equity VERIFICATION I, Fern L. Wilson, individually and as President of FernRock-Snyder, Inc., hereby certify that the facts set forth in the foregoing COMPLAINT are true and correct to the best of my knowledge, information and belief. I understand that any false statements made herein are subject to penalties of 18 Pa. C.S.A. ~4904 relating to unsworn falsification to authorities. DATED: ~-I r; ~ ,2001 ~~~- F~ L. Wilson ,i.""" ~ . .. . " L Barbara Sump Ie-Sullivan, Esquire Supreme Court #32317 549 Bridge Street New Cumberland, P A 17070 (717)774-1445 FERN L. WILSON and FERNROCK-SNYDER, INC., Plaintiffs v. McDUNKS, INC., IRA 1. McMANUS, JR., LESLIE J. McMANUS, KAREN L. DUNKLE, and THE ESTATE OF JAMES R. DUNKLE, Defendants "-'-:-,1 Ie 1li,~" . . ),l' l . : IN THE COURT OF COMMON PLEAS : CUMBERLAND COUNTY, PENNSYLVANIA : NO. : In Equity CERTIFICATE OF SERVICE I, Barbara Sumple-Sullivan, Esquire, do hereby certify that on this date, I served a true and correct copy of the foregoing Complaint For Equitable Relief, Preliminary Injunction And Specific Performance, in the above-captioned matter upon the following individual(s) via fax and by first class mail, postage prepaid, addressed as follows: Samuel L. Andes, Esquire 525 North 12th Street P.O. Box 168 Lemoyne, P A 17043 DATED: June 14,2001 Lee Applebaum, Esquire Fineman & Bach, P.C. 1608 Walnut Street 12- /Phi / / / / ~" I Barbara Sumple-Sullivan, Esquire 549 Bridge Street New Cumberland, P A 17070-1931 (717) 774-1445 Supreme Court I.D. No. 32317 Attorney for Plaintiffs " ~ I \ i , Barbara Sumple-Sullivan, Esquire Supreme Court #323 17 549 Bridge Street New Cumberland, PA 17070 (717) 774-1445 FERN 1. WILSON and FERNROCK-SNYDER, INC., Plaintiffs v. McDUNKS, INe., IRA J. McMANUS, JR., LESLIE J. McMANUS, KAREN 1. DUNKLE, and THE ESTATE OF JAMES R. DUNKLE, Defendants . - ,-,-,J . _ ,o-,;c,~_ " _. -'~ :'l:--J" .i; 'r ~:; ~:,::~;)::~_'~ ;:_2:i;i,~;';8;,-~,';:;\_:,\':'~~-~;:- - ,. ,-,,'--- ,-.;,", ,- ,- '~-",: . . ,.,;.. . . : IN THE COURT OF COMMON PLEAS : CUMBERLAND COUNTY, PENNSYLVANIA : NO. : In Equity VERIFICATION I, Fern 1. Wilson, individually and as President of FernRock-Snyder, Inc., hereby certify that the facts set forth in the foregoing PETITION are true and correct to the best of my knowledge, information and belief. I understand that any false statements made herein are subject to penalties of 18 Pa. C.S.A. ~4904 relating to unsworn falsification to authorities. DATED: r If ,2001 ~~ FeU1. Wilson ".0 ':"<"" ,-~.~i.' , '_"__,"0.,',"" .q""...""" 'ci.o"'" , , ~,. ~ . , . ~ .. . Barbara Sumple-Sullivan, Esquire Supreme Court #32317 549 Bridge Street New Cumberland, P A 17070 (717) 774-1445 .~,,'.,,-". . il' """ .;;i ",' I' n -:O~"":"" ,.",. .,'.',".'.- ',....'.-..,.,> - -":}r:,~.',:"~' ';:, 'l':j~': ';~:;~.:~tf2,:;~:t.~'::it~{~,~1'::~;: "";' - .." ~L ~. '1 .." . FERN 1. WILSON and FERNROCK-SNYDER, INC., Plaintiffs v. McDUNKS, INC" IRA J. McMANUS, JR., LESLIE J. McMANUS, KAREN 1. DUNKLE, and THE ESTATE OF JAMES R. DUNKLE, Defendants : IN THE COURT OF COMMON PLEAS : CUMBERLAND COUNTY, PENNSYLVANIA NO. : In Equity CERTIFICATE OF SERVICE I, Barbara Sumple-Sullivan, Esquire, do hereby certify that on this date, I served a true and correct copy of the foregoing Petition for Special Injunctive Relief, in the above-captioned matter upon the following individual (s) via fax and by first class mail, postage prepaid, addressed as follows: Samuel L. Andes, Esquire 525 North 12th Street P,O. Box 168 Lemoyne, P A 17043 DATED: h-({I--,dOO / Lee Applebaum, Esquire Fineman & Bach, P.C. 1608 Walnut Street 19th F Ph' elphi arbara Sumple-Sullivan, Esquire " 549 Bridge Street New Cumberland, PA 17070-1931 (717) 774-1445 Supreme Court J.D. No. 32317 Attorney for Plaintiffs ~ "?~ -. . - .~." -, - ~'."' .' ,--' '-.; ~-" "-, '-J ':.' --; -" -"~,L,,::-'i..~'~,;'~-':;:: :,,_~_~: _"i_,"':<'_ ',- - .'.\[::::::-- "~I .,- -,. 0; :_~:"::,:' _ ' _'0 -.e,i":-,j:;-,:;'q:,;,,} . --( FERN L. WILSON and FERNROCK~-SNYDER, INC., Plaintiffs : IN THE COURT OF COMMON PLEAS : CUMBERLAND COUNTY, PENNSYL VANIA v. : NO. 2001-3705 McDUNKS, INC., IRA 1. McMANUS, JR., LESLIE J. McMANUS, KAREN L. DUNKLE, and THE ESTATE OF JAMES R. DUNKLE, Defendants : In Equity ORDER OF COURT AND NOW, this t, It. day of :r t ,\ 1-' 2001, upon consideration of the attached letter from Barbara Sumple-Sullivan, Esquire, the argument previously scheduled for August 8, 2001, is continued generally. COUNSEL ARE requested to contact the Court if they desire a hearing in the above matter. BY THE COURT, J Samuel L. Andes, Esquire 525 North 12th Street P.O. Box 168 Lemoyne, P A 17043 ~ ~~~ 6'(0. ,()\ t>{\ BlII'bara Sump Ie-Sullivan, Esquire 549 Bridge Street New Cumberland, P A 17070 Lee Applebaum, Esquire Fineman & Bach, P.C. 1608 Walnut Street 19th Floor Philadelphia, PA 19103 .., I 'L'I ", 1 ; il,~' \.j i",' ~<' ,_ ." l\j-'i i !: ~{? Cl 1.\,.;:::1 ;":' :',:','1' i"(i; il\:Tv' Uu,-,,-, ..._1'" _ '.l._',..) \1 I PENNSYLIfANI;\ II II 'I II II II II Ii ,j II Ii , 1 I II Ill" ~ It",", ._. " ....._...".?" ~..,,,n.w.~w.,'" ,i,"",?,,,,, ."~I"'~i"w"'.iHT""'''',,,''!''"' """""". 'C'",'-/'"" - ,e'_'-'> :~_~I_"4~J~!r~,-_,,,,_-_. '-':i'7:~.,JJI~ <.l1l: ,-",. ~" -. - "'-, ~ .,._"-~tW;,~ ,.'.'0, , -'.-~tP~ . ." ~- I 1" _~-, ",_ I ~ "'e',, :"~_;,_",,;,,,_ -'c_ ~ '_ <"-,,"',Li, c,j --lftiW j-':-:/ / !", LAw OFFICES BARBARA SUMPLE-SULLIV.AN 549 BRIDGE STREET NEw CUMBERLAND. PENNSYLVANIA 17070-1931 PHONE'(717) 774-144a FAX (717) 774-70a9 July 5, 2001 The Honorable J. Wesley Oler, Jr. Cumberland County Courthouse I Courthouse Square Carlisle, P A 17013 Re: Fern L. Wilson and FernRock-Snyder, Inc. vs. McDunks, Inc., Ira J, McManus, Jr., Leslie J. McManus, Karen 1. Dunkle and the Estate of James R. Dunkle Docket No. 2001-3705 Dear Judge Oler: The Order which you issued in this matter for continuance did not address the pending equity matter. I acknowledge that your office had called to inquire about same; however, the message came when I was out of the office. I had returned the call during a lunch time and did not reach your office. I then did not follow .uP thereafter. I apologize for any inconvenience this delay in responding may cause you or your staff. In order to facilitate, please fmd an Order identical to the one you issued for the actions at Docket Nos. 2000-6777 and 2000-6778 for your signature relative to Docket No. 2001-3705. Continuance of all three actions is contemplated by the settlement agreement. I am sending appropriate envelopes for all counsel of record. Again, I sincerely apologize for any inconvenience to you and Ruth. Very truly yours, ~k" ~- ULj Barbara Sump Ie-Sullivan BSS/ld Enclosures cc: Samuel 1. Andes, Esquire (w/enel) Lee Applebaum, Esquire (w/enel) Ms. Fern 1. Wilson if