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HomeMy WebLinkAbout09-6701 ROUTE 15 DINER, INC., IN THE COURT OF COMMON PLEAS OF Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA V. NO. 2009- CIVIL TERM THORP RESTAURANTS, INC., CIVIL ACTION-LAW Defendant NOTICE TO DEFEND 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 an attorney and filing in writing with the court your defenses or objections to the claims set forth against. 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. Pennsylvania Lawyer Referral Service Pennsylvania Bar Association 100 South Street P.O. Box 186 Harrisburg, Pennsylvania 17108 (800) 692-7375 ROUTE 15 DINER, INC., IN THE COURT OF COMMON PLEAS OF Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA V. NO. 2009- CIVIL TERM THORP RESTAURANTS, INC., CIVIL ACTION-LAW Defendant COMPLAINT COUNT I-BREACH OF CONTRACT NOW, comes Plaintiff, Route 15, Diner, Inc., by and through its attorneys, O'BRIEN, BARIC & SCHERER, and files the within Complaint and, in support thereof, sets forth the following: 1. Plaintiff, Route 15 Diner, Inc., is a Pennsylvania corporation with a principal business address of 34 Teaberry Drive, Carlisle, Cumberland County, Pennsylvania 17013. 2. Defendant, Thorp Restaurants, Inc., is a Pennsylvania corporation with a principal business address of 3302 Derry Street, Harrisburg, Dauphin County, Pennsylvania 17101. 3. On or about March 1, 2008, Odie Enterprises, Inc., entered into a Note payable to Plaintiff. A true and correct copy of the Note is attached as Exhibit "A" and is incorporated by reference. Plaintiff represents that the Note was executed by Defendant, however, after a diligent search, Plaintiff has not been able to find the fully executed copy. 4. In July, 2008, Thorp Restaurants, Inc., assumed full responsibility to pay the Note through the execution of a Business Purchase Agreement. A true and correct copy of the Business Purchase Agreement is attached as Exhibit "B" and is incorporated by reference. 5. Defendant has defaulted under the terms of the Note by failing to make the required monthly payments for February, 2009 and every month thereafter. 6. The amount due and owing is calculated as follows: Principal $132,593.12 Interest to 09/29/09 $ 6,126.22 (per diem $25.42) Attorney Fees $ 13,259.31 (10% of the principal debt for purposes of this Complaint) TOTAL: $151,978.65 7. The Note as appended, provides for the recovery of costs, including reasonable attorney fees to collect the debt due and owing. 8. The Note provides for acceleration upon default in payment. 9. All conditions precedent to recovery have been fulfilled. WHEREFORE, Plaintiff requests judgment as authorized by the warrant in the amount of $151,978.65 plus costs and expenses, attorney fees and interest accruing to the date of payment. Respectfully submitted, U N, BARI S E r David A. Baric, Esquire I.D. 44853 19 West South Street Carlisle, Pennsylvania 17013 (717) 249-6873 Attorney for Plaintiff dab.dir/litigation/oliva/routel5diner/complaint.pld VERIFICATION The statements in the foregoing Complaint are based upon information which has been assembled by my attorney in this litigation. The language of the statements is not my own. I have read the statements; and to the extent that they are based upon information which I have given to My counsel, they are true and correct to the best of my knowledge, information and belief. I understand that false statements herein are made subject to the penalties of 18 Pa.C.S. § 4904 relating to unsworn falsifications to authorities. DATE: l o f i - oq ` Angel P. Oliva, President Route 15 Diner, Inc. c~ INSTALLMENT PROMISSORYNOTE $135,000 Date: March 1, 2008 For value received, the undersigned Odie Enterprises, Inc. (the "borrower"), at 3304 Derry Street, Harrisburg, Pennsylvania 17111, promises to pay to the order of Route 15 Diner, Inc., (the "Lender"), at 34 Teaberry Drive, Carlisle, Pennsylvania 17013, (or at such other place as the Lender may designate in writing) the sum of $135,000 with interest from November 1, 2004, on the unpaid principal at the rate of 7.00% per annum.: Unpaid principal after the Due Date shown below shall accrue interest at a rate of 10.00% annually until paid. The Unpaid principal and accrued interest shall be payable in monthly installments of $1,000.00 beginning on March 1, 2008 and continuing until March 1, 2013 (the "due date', at which time the remaining unpaid principal and interest shall be due in full. All payments on this Note shall be applied first in payment of accrued interest and any remainder in payment of principal. . The Borrower promises to pay a late charge of $200.00 for each installment that remains unpaid more than. 5 day(s) after its due date. This late charge shall be paid as liquidated damages in lieu of actual.damages, and not as a penalty. If any payment obligation under this Note is not paid when due, the remaining unpaid principal balance and any accrued interest shall become due immediately at the option of the Lender. The Borrower reserves the right to prepay this Note (in whole or in part) prior to the Due Date with no prepayment penalty. If any payment obligation under this Note is not paid when due, the Borrower promises to pay all costs of collection, including reasonable attorney fees, whether or not a lawsuit is' commenced as part of the collection process. This Note is secured by a 100 shares of Odie Enterprises, Inc., dated October 1, 2004. The Lender is not required to rely on the above security instrument and the assets secured therein for the payment of this Note in the case of default, but may proceed directly against the Borrower. If any of the following events of default occur, this Note and any other obligations of the Borrower to the Lender, shall become due immediately, without demand or notice: Initials ?QT? EXHIBIT "A" 1) The failure of the Borrower to pay the principal and any accrued interest in full on or before the Due Date; 2) The death of the Borrower or Lender; 3) The filing of bankruptcy proceedings involving the Borrower as a debtor; 4) The application for the appointment of a receiver for the Borrower, 5) The making of a general assignment for the benefit of the Borrower's creditors; 6) The insolvency of the Borrower; 7) A misrepresentation by the Borrower to the Lender for the purpose of obtaining or extending credit. In addition, the Borrower shall be in default if there is a sale, transfer, assignment, or any other disposition of any assets pledged as security for the payment of this Note, or if there is a default in any security agreement which secures this Note. If any one or more of the provisions of this Note are determined to be unenforceable, in whole or in part, for any reason, the remaining provisions shall remain fully operative. All payments of principal and interest on this Note shall be paid in the legal currency of the United States. The Borrower waives presentment for payment, protest, and notice of protest and nonpayment of this Note. No renewal or extension of this Note, delay in enforcing any right of the Lender under this Note, or assignment by the Lender of this Note shall affect the liability or the obligations of the Borrower. All rights of the Lender under this Note are cumulative and may be exercised concurrently or consecutively at the Lender's option. This Note shall be construed in accordance with the laws of the State of Pennsylvania. Signed this day of at Borrower: Odie Enterprises, Inc. -2- Initial a ' t d By: James O'Donnell GUARANTY James O'Donnell unconditionally guarantees all the obligations of the Borrower under this Note. Date: James O'Donnell By: James O'Donnell -3- Initials: e ASSIGNMENT [ONLY COMPLETE THE FOLLOWING INFORMATION TO ASSIGN PAYMENTS TO A NEW PARTY.] For value received, the above Note is assigned and transferred to ("Assignee') of (City) (State/Province) (Country) Dated: By: Route 15 Diner, Inc. s•? -4- Initial e E M ' DISCLOSURE FOR CONFESSION OF JUDGMENT I acknowledge that I have executed a Judgment Note this day of ®(? 2008, in the amount of $135,000.00 obligating me to repay that amount plus interest to ROUTE 15 DINER, INC., or its successors or assigns. I understand that the Note contains wording that would permit ROUTE 15 DINER, INC.o or its successors or assigns, to enter judgment against me at the Courthouse, if said Note is in default, without notice to me and without offering me an opportunity to defend against the entry of judgment, and that the judgment may be collected by any legal means. In executing the Note, I am knowingly, understandably, and voluntarily waiving my rights to resist the entry of judgment against me at the Courthouse, and am consenting to: the confession of judgment. I certify that my annual income exceeds Ten Thousand Dollars ($10,000.00) and that I received a copy of this Disclosure at the time of signing. I certify that the Note is not given to secure a consumer loan. (SEAL) James O'Donnell PURCHASE AGREEM'E THIS BUSINESS PURCHASE AGREEMENT (herein called "Agreement") is made the day of July, 2008, by and between ODIE ENTERPRISES, INC., a Pennsylvania corporation, (herein called "Seller") and THORP RESTAURANTS, INC., a Pennsylvania corporation (herein called "Buyer"). WITNESSETH WHEREAS, Seller owns a certain inventory, equipment, machinery, furniture, furnishings, leasehold improvements, fixtures and other items of property for use in the operation of a restaurant business which Seller conducts at the premises known as Paxtang Diner, located! at 3302 Derry Street, Harrisburg, Dauphin County, Pennsylvania 17111 (herein called "Premises"); and WHEREAS, Seller operates said business at the Premises pursuant to a certain Lease Agreement (herein called "Lease") between ANTONIOS T., INC. (herein called "Lessor") and NICHOLAS J. GIAMBILIS (herein called "Lessee"); and ' WHEREAS, Seller desires to sell and/or assign the foregoing inventory, equipment, machinery, furniture, furnishings, leasehold improvements, fixtures and other items of property to the Buyer, and Buyer desires to purchase and/or take the same from Seller, on the terms and conditions herein set forth. NOW THEREFORE, in consideration of the mutual covenants contained herein, in reliance' upon the representations and warranties contained herein, and subject to the conditions contained herein, the parties hereto agree as -follows: 1. SALE OF ASSETS: Seller agrees to sell and deliver to Buyer, and Buyer agrees to' purchase and take from Seller, all of the inventory, equipment, machinery, furniture, furnishings, leasehold improvements, fixtures and other items of property owned by Seller for use in the EXHIBIT."B" operation of a restaurant business on the Premises, including but not limited to the items specifically described in the attached Exhibit "A" (but excluding all cash and accounts receivable relating to said business and existing as of the Closing Date, which items are not being sold under this Agreement and shall remain the property of Seller) (herein collectively called "Assets"). Seller shall transfer good and marketable title to the Assets to Buyer, free and clear of all liens, encumbrances, security interests, restrictions and claims of any nature whatsoever. 2. ASSIGNMENT OF DOCUMENT INTERESTS: Seller, Lessor and Lessee agree to all of Seller's, assign to Buyer, and Buyer agrees to accept from Seller, Lessor and Lessee, Lessor's and Lessee's rights, title, interests and obligations in, to and under the lease, (herein collectively called "Document Interests"). Seller, Lessor and Lessee shall transfer good and marketable title to the Document Interests to Buyer, free and clear of all liens, encumbrances, security interests, restrictions and claims of any nature whatsoever, except that Seller shall have the continuing right at any time to enter a security interest against the assets as security for the payment of all amounts due from Buyer to Seller under this agreement. Seller shall be in full compliance with all of Seller's respective obligations under the lease on the Closing Dote. Buyer may, at Buyer's option, and in lieu of taking an assignment of all of Seller's and Lessee's rights, title, interests and obligations in, to and under the lease, and Seller and Lessee shall be released from all further obligations under the lease at such time. 3. CLOSING DATE: All of the transactions contemplated herein shall be consummated upon the signing of this agreement. 4. PURCHASE PRICE: Buyer shall pay Seller for the Assets the sum of $229,758 (herein called "Purchase Price"). The parties agree that the Purchase Price shall be allocated in this manner set forth in the attached Exhibit "B". The Purchase Price shall be paid in accordance with the terms of two separate notes, for which Buyer hereby assumes full responsibility for and agrees to and does hereby hold Seller harmless from any remaining obligation under the terms of these notes, as follows: A. Note dated February 5, 2008 between Seller and James O'Donnell to 1803 Pike, Inc., in the amount of $98,000, but having a present balance of $95,833.20, said note being attached hereto as Exhibit "C"; and B. Note dated March 1, 2008 between Seller and Route 15 Diner, Inc., in the amount of $135,000, but having a present balance of $133,925.03, said note being attached hereto as Exhibit "D". C. 1803 Pike, Inc. and Route 15 Diner, Inc., join herein to acknowledge and confirm that they have released Seller from all obligations under these two notes and further to indicate that if the Buyer's lease for the premises is not renewed at the end of the first year, then Buyer shall be released from any responsibility for said notes as well. 5. ORDERLY TRANSFER OF BUSINESS: Seller agrees to cooperate with Buyer in effectuating an orderly transfer to Buyer of the restaurant business presently conducted on the Premises by Seller. Seller shall continue the normal operation of said business until Closing) and shall use its best efforts to preserve the good will of suppliers, customers and others having business relations with said restaurant business. 6. USE OF NAME: In orderly to assist in the orderly continuation of the business, it is expressly agreed by the parties that the Buyer may continue to use the name "Paxtang Diner" as the name of this restaurant business. 7. LEASE: Buyer shall assume the lease for a period of one year under its current terrrrs. Lessor agrees. that provided Buyer makes all rental, utility and vendor payments in a reasonably timely manner, then Lessor will renew said lease with the same terms as are currently in force. A copy of this lease is attached hereto as Exhibit "E". Lessor joins herein to acknowledgel and authorize the release of Seller and the assumption of the lease by the Buyer. 8. CLOSING DOCUMENTS: Seller shall duly execute and deliver to Buyer the following documents and instruments at Closing: A. A Bill of Sale in form acceptable to Buyer and Seller, duly executed by Seller, transferring good and marketable title to the Assets to Buyer free and clear of all liens,' encumbrances, security interests, restrictions and claims of any nature whatsoever (see Exhibit "F" attached hereto and made a part hereof); B. A written assignment to Buyer of all guarantees or warranties possessed by Seller from any manufacturer or supplier of the Assets (see Exhibit "G" attached hereto and made a part hereof); C. Such other documents and instruments required to be delivered by Seller to Buyer hereunder. 9. OTHER DOCUMENTS: Seller and Buyer shall also deliver to each other, both before and after Closing, such other documents and instruments as may be required for the proper consummation of the transactions contemplated in this Agreement and for the proper fulfillment of the covenants, representations and warranties contained in this Agreement. 10. INDEMNIFICATION AND SETOFF: Each party agrees to indemnify and hold harmless the other party for and from any and all liability or loss the other party may suffer (including Out not limited to court costs and attorney's fees) on account of a party's breach of any term, covenant, warranty or representation set forth herein or in any of the documents and warranties instruments executed or delivered in connection herewith. All the terms, covenants, and representations set forth herein shall survive Closing and the execution and/or delivery of any documents and/or instruments before, at or after Closing. In addition, Buyer agrees to and does hereby indemnify and hold Seller harmless from any and all future lease payments or other obligations under the lease referred to above or any extensions thereof for the premises. 11. NO OBLIGATIONS ASSUMED: It is hereby expressly acknowledged and agreed by the parties hereto that Buyer is not, and will not be, assuming any liabilities, debts, contracts or obligations whatsoever of Seller under the terms of this Agreement or through the transactions resulting therefrom, except for the obligations of Seller under the lease which accrue after the Closing Date. In the latter connection, Buyer agrees to make all payments and comply with all obligations and responsibilities of the lease agreement referred to above or any extensions thereof for the premises and that failure to do so will be considered a default of this agreement. 12. NOTICES: Any notice to be given hereunder shall be given in writing and delivered personally or by registered or certified mail, return receipt requested, postage prepaid, to the respective parties at the following locations: Seller: Odie Enterprises, Inc. Buyer: Paxtang Diner 3302 Derry Street Harrisburg, PA 17111 13. BROKER'S COMMISSION: Neither party hereto shall be liable for any broker's commission in connection with the transactions hereunder, and each party acknowledges and represents to the other party that it has not had any dealings, negotiations or consultations With any broker concerning the transactions hereunder. 14. VOLUNTARY EXECUTION: It is acknowledged by all parties hereto that the English language is a second language for some of the parties. However, all parties have had adequate opportunity to have all of the terms of this agreement and the lease for the premises fully explained to them in their own language, if necessary, and all parties acknowledge that' they fully understand and voluntarily agree to all of the terms of this agreement and of the lease. Buyer's attorney is Harold S. Irwin, III, Esquire. Seller acknowledges that Seller has been advised to obtain independent legal counsel of Seller's own choice to review the terms of this agreement and has either done so or voluntarily elected not to do so. 15. MISCELLANEOUS: This Agreement shall be construed under and governed by the laws of the Commonwealth of Pennsylvania. This Agreement constitutes the entire agreement between the parties with respect to the sale and transfer of the Assets and Document Interests, and there are no agreements, conditions or understandings, either oral or written, between Seller and Buyer relating to these matters other than those which are contained in this Agreement. For the purposes of interpreting this Agreement, the masculine shall include the feminine and neuter, and vice versa, and the singular shall include the plural, and vice versa, unless contrary intent appears. The subject headings of the paragraphs of this Agreement are included for the purpose of convenience only and shall in no way affect the meaning or construction of any term or provision hereof. The above WHEREAS clauses and the attached Exhibits are integral and substantive parts of this Agreement and are hereby incorporated herein by reference. This Agreement shall inure to the benefit of and shall be binding upon each of the parties hereto and their respective heirs, executors, administrators, successors and assigns. This Agreement may be altered or amended only by a written agreement signed by both Seller and Buyer. This Agreement may be executed in one or more counterparts, each Of which shall be deemed an original, but all of which together shall constitute one and the same Agreement. All the terms, covenants, warranties and representations set forth herein shall survive Closing and the execution and/or delivery of any documents and/or instruments before, at .or after Closing. IN WITNESS WHEREOF, and intending to be legally bound, the parties have executed this Agreement the day and year first above written. Witness: ,5,?4TERPRISES RI/ INC. Seller ?A IOS T., INC. Lessor! NICHOLAS J. GIAMBILIS LOS SO 1 KE, INC. Payee 01 R 15 DINER, INC. Payee 2FFIC!9- FILED4',,E Y CNOTARY 2009 uCIT -7 02 Nl U.V:. ?7g. so ? ? lso7y ?2? a ais4s Sheriffs Office of Cumberland County R Thomas Kline Sheriff Ronny R Anderson Chief Deputy ?4??ia 0E ?ai?ntirct?7b OFFICE Or THE 5-EFZirF FpY Jody S Smith Civil Process Sergeant Edward L Schorpp Solicitor Route 15 Diner, Inc. vs. Thorp Restaurants, Inc. 2009 OCT zo R1?: s Case Number 2009-6701 SHERIFF'S RETURN OF SERVICE 10/08/2009 R. Thomas Kline, Sheriff who being duly sworn according to law states that he made a diligent search and inquiry for the within named defendant, to wit: Thorp Restaurants, Inc., but was unable to locate them in his bailiwick. He therefore deputized the Sheriff of Dauphin County, PA to serve the within Complaint and Notice according to law. 10/15/2009 02:37 PM - Dauphin County Return: And now October 15, 2009 at 1437 hours I, Jack Lotwick, Sheriff of Dauphin County, Pennsylvania, do herby certify and return that I served a true copy of the within Complaint, upon the within named defendant, to wit: Thorp Restaurants, Inc. by making known unto Richard Thorp, Owner at 3302 Derry Street Harrisburg, PA 17101 its contents and at the same time handing to him personally the said true and correct copy of the same. SHERIFF COST: $37.44 SO ANSWERS, N October 19, 2009 R THOMAS KLINE, SHERIFF