HomeMy WebLinkAbout01-3215SYDNEY D. CAPLAN, : IN THE COURT OF COMMON PLEAS OF
Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA
v. : NO. ~/- ~.,2/." ~ 'T'"",z.,-
:
JAMES J. TOULOUMES, JR., :
FROSO I. TOULOUMES, :
CONSTANTINE G. J. TOULOUMES,
JAMES J. TOULOUMES, III, and
JFK-T GROUP, INC., : CIVIL ACTION - LAW
PRAECIPE FOR WRIT OF SUMMONS
TO THE PROTHONOTARY OF SAID COURT:
Please issue a writ of summons in the above-captioned action.
__ Writ of Summons shall be issued and forwarded to ( ) Attorney (X) Shedff
McNEES, WALLACE & NURICK
~sames P. DeAngelo
upreme Court I.D. 62377
100 Pine Street,
P.O. Box 1166
Harrisburg, PA 17108-1166
717-232-8000
Attorneys for Plaintiff
Date: May 25, 2001
SYDNEY D. CAPLAN, IN THE COURT OF COMMON PLEAS OF
Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA
:
v. : NO.
JAMES J. TOULOUMES, JR.,
FROSO I. TOULOUMES, :
CONSTANTINE G. J. TOULOUMES, :
JAMES J. TOULOUMES, III, and :
JFK-T GROUP, INC., : CIVIL ACTION - LAW
WRIT OF SUMMONS
TO: JAMES J. TOULOUMES, JR., FROSO I. TOULOUMES, CONSTANTINE G. J.
TOULOUMES, JAMES J. TOULOUMES, III, and JFK-T GROUP, INC.
YOU ARE HEREBY NOTIFIED that Sydney D. Caplan, Plaintiff, has commenced
an action against you.
Curt Long,
~ ~ (Deputy)
Seal of the Court
SYDNEY D. CAPLAN, IN THE COURT OF COMMON PLEAS OF
Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA
v. NO. 01-3215 CIVIL TERM
:
JAMES J. TOULOUMES, JR.,
FROSO I. TOULOUMES,
CONSTANTINE G. J. TOULOUMES, :
JAMES J. TOULOUMES, III, and
JFK-T GROUP, INC.,
PRAECIPE FOR ENTRY OF APPEARANCE
TO: CURT LONG, PROTHONOTARY
Please enter my appearance in the above captioned case as co-counsel for
Plaintiff Sydney D. Caplan. James P. DeAngelo, Esquire, of McNees, Wallace & Nurick
continues his appearance for Plaintiff.
Edward W. Rothman
Supreme Court I.D. 7244
1435 Appletree Road
Harrisburg, PA 17110
717-236-6687
Attorney for Plaintiff
Date: July 12, 2001
CERTIFICATE OF SERVICE
I certify that I have this date served the foregoing document on the parties listed
below by first class mail, postage prepaid, which service satisfies the requirements of
Pa. R. Civ. P. 440.
Robert L. Knupp, Esq.
Knupp, Kodak & Imblum, P.C.
407 North Front Street
Harrisburg, PA 17101
Edward W. Rothman
Dated: July 12, 2001
SHERIFF'S RETURN - OUT OF COUNTY
CASE NO: 2001-03215 P
COMMONWEALTH OF PENNSYLVANIA:
COUNTY OF CUMBERLAND
CAPLAN SYDNEY D
VS
TOULOUMES JAMES J JR ET AL
R. Thomas Kline , Sheriff or Deputy Sheriff who being
duly sworn according to law, says, that he made a diligent search and
and inquiry for the within named DEFENDANT , to wit:
TOULOUMES JAMES J III
but was unable to locate Him in his bailiwick. He therefore
deputized the sheriff of DAUPHIN County, Pennsylvania, to
serve the within WRIT OF SUMMONS
On July 6th , 2001 , this office was in receipt of the
attached return from DAUPHIN
Sheriff's Costs: So~~
Docketing 6.00
Out of County 9.00
Surcharge 10.00 R.
Dep Dauphin Co 29.25 Sheriff of Cumberland County
.00
54.25
07/06/2001
MCNEES WALLACE & NURICK
Sworn and subscribed to before me
this /B'~ day of ~ ! !
A.D.
-- Prot hondt a~y'
SHERIFF'S RETURN - REGULAR
CASE NO: 2001-03215 P
COMMONWEALTH OF PENNSYLVANIA:
COUNTY OF CUMBERLAND
CAPLAN SYDNEY D
VS
TOULOUMES JAMES J JR ET AL
RICHARD SMITH , Sheriff or Deputy Sheriff of
Cumberland County,Pennsylvania, who being duly sworn according to law,
says, the within WRIT OF SUMMONS was served upon
TOULOUMES JAMES J JR the
DEFENDANT , at 2009:00 HOURS, on the 8th day of June , 2001
at 3 W PINE ST
MT HOLLY SPRINGS, PA 17065 by handing to
JAMES J TOULOUMES JR
a true and attested copy of WRIT OF SUMMONS together with
and at the same time directing His attention to the contents thereof.
Sheriff's Costs: So Answers:
Docketing 18.00 .~..~,~ ,~.~ ~~
Service 8.68 ~ ~.,~.,~.~_~
Affidavit .00
Surcharge 10.00 R. Thomas Kline
.00
36.68 07/06/2001
MCNEES WALI~.CE/~;~K
Sworn and Subscribed to before By: ~_/~,~
me this /3~ day of / Deputy S~eriff
~ ~ I A.D.
~ ; Prothonotar~
SHERIFF'S RETURN - REGULAR
CASE NO: 2001-03215 P
COMMONWEALTH OF PENNSYLVANIA:
COUNTY OF CUMBERLAI~D
CAPLAN SYDNEY D
VS
TOULOUMES JAMES J JR ET AL
RICHARD SMITH , Sheriff or Deputy Sheriff of
Cumberland County, Pennsylvania, who being duly sworn according to law,
says, the within WRIT OF SUMMONS was served upon
TOULOUMES CONSTANTINE G J the
DEFENDANT , at 2009:00 HOURS, on the 8th day of June , 2001
at 3 W PINE ST
MT HOLLY SPRINGS, PA 17065 by handing to
CONSTANTINE TOULOUMES
a true and attested copy of WRIT OF SUMMONS together with
and at the same time directing His attention to the contents thereof.
Sheriff's Costs: So Answers:
Service .00
Affidavit .00
Surcharge 10.00 R. Thomas Kline
.00
16.00 07/06/2001
MCNEES WALLACE ~~
Sworn and Subscribed to before By:
me this /3~ day of
~ o1~; ~ A.D.
~r6thonot ary
SHERIFF'S RETURN - REGULAR
CASE NO: 2001-03215 P
COMMONWEALTH OF PENNSYLVAi~IA:
COUNTY OF CUMBERLAND
CAPLAN SYDNEY D
VS
TOULOUMES JAMES J JR ET AL
CPL MICHAEL BARRICK , Sheriff or Deputy Sheriff of
Cumberland County, Pennsylvania, who being duly sworn according to law,
says, the within WRIT OF SUMMONS was served upon
JFK-T GROUP INC the
DEFENDAiqT , at 1815:00 HOURS, on the 31st day of May , 2001
at C/O KOSTA'S RESTAUR3LNT 451 N 21ST ST
CAMP HILL, PA 17011 by handing to
FROSO TOULOUMES
a true and attested copy of WRIT OF SUMMONS together with
and at the same time directing Her attention to the contents thereof.
Sheriff's Costs: So Answers:
Docketing 6.00 .~,~ ~ ~~~.
Service .00
Affidavit o 00
Surcharge 10.00 R. Thomas Kline
.00
16.00 07/06/2001
MCNEES WALLACE & NURICK
and Subscribed to before By:
Sworn
me this /3~'~ day of Deputy Sheriff
~Pfothohotary ' ' '
SHERIFF'S RETURN - REGULAR
CASE NO: 2001-03215 P
COMMONWEALTH OF PENNSYLVANIA:
COUNTY OF CUMBERLAND
CAPLAN SYDNEY D
VS
TOULOUMES JAMES J JR ET AL
CPL MICHAEL BARRICK , Sheriff or Deputy Sheriff of
Cumberland County,Pennsylvania, who being duly sworn according to law,
says, the within WRIT OF SUMMONS was served upon
TOULOUMES FROSO I the
DEFENDANT , at 1815:00 HOURS, on the 31st day of May , 2001
at 451 N 21ST ST
CAMP HILL, PA 17011 by handing to
a true and attested copy of WRIT OF SUMMONS together with
and at the same time directing Her attention to the contents thereof.
Sheriff's Costs: So Answers:
Docketing 6.00
Service 9.30 !~ . .~-~ '...
Affidavit .00
Surcharge 10.00 R. Thomas Kline
.00
25.30 07/06/2001
MCNEES WALLACE & NURICK
Sworn and Subscribed to before By:
me this /~ day of
Pro ~ I A.D.
thonotary' ' '
In The Court of Common Pleas of Cumberland County, Pennsylvania
Sydney D. Caplan
VS.
James J. Toulo~nes Jr. etal
SERVE: Ja~es J. Touloumes III No. 2001 3215 civil
NOW, 5/29/01 , I, SHERIFF OF CUMBERLAND COUNTY, PA, do
hereby deputize the Sheriff of Dauphin Coullty to execute this Writ, this
deputation being made at the request and risk of the Plaintiff.
Sheriff of Cumberland County, PA
Affidavit of Service
Now, ,20 , at o'clock __ M. served the
within
upon
at
by handing to
a copy of the original
and made known to the contents thereof.
So answers,
Sheriff of County, PA
COSTS
Sworn and subscribed before SERVICE $
me this day of ,20 MILEAGE
AFFIDAVIT
$.
J. Daniel Basile
Mary Jane Snyder Chief Deputy
Real Estate Deputy
Michael W. Rinehart
William T. Tully Assistant Chief Deputy
Solicitor
Dauphin County
HanSsburg, Pennsylvania 17101
ph: (717) 255-2660 fax: (717) 255-2889
Jack Lotwick
Sheriff
Commonwealth ofPennsy~ania : CAPLAN SYDNEY D
vs
County ofDauphin : TOULOUMES JAMES J III
Sheriff's Return
No. 1535-T - -2001
OTHER COUNTY NO. 2001-3215
I, Jack Lotwick, Sheriff of the County cf Dauphin, State of
Pennsylvania, do hereby certify and return, that I made diligent
search and inquiry for TOULOUMES JAMES J III
the DEFENDANT named in the within SUMMONS/PRAECIPE/INTER/REQ FOR PROD DOC
and that I am unable to find him/her in the County of Dauphin, and
therefore return same NOT FOUND, June 29, 2001
NEED A BETTER ADDRESS FOR DEFENDANT. NUMEROUS CARDS WERE LEFT AT RESIDENCE
NO RESPONSE. A NEIGHBOR SAYS A COUPLE LIVES AT 272 SUE DR., HUMMELSTOWN.
EXPIRED 6/25/01.
Sworn and subscribed to So Answers,
before me this 29TH day~~ ~J~
~ Sheriff of Dauphin County, Pa.
PROTHONOTARY By
Deputy Sheriff
Sheriff's Costs: $29.25 PD 06/07/2001
RCPT NO 150737
SYDNEY D. CAPLAN, IN THE COURT OF COMMON PLEAS OF
Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA
v. NO. 01-3215 CIVIL TERM
JAMES J. TOULOUMES, JR.,
FROSO I. TOULOUMES,
CONSTANTINE G. J. TOULOUMES,
JAMES J. TOULOUMES, Ill, and
JFK-T GROUP, INC.,
PRAECIPE TO REISSUE WRIT OF SUMMONS
TO THE PROTHONOTARY:
PLEASE reissue the attached Writ of Summons for service upon Defendant
James J. Touloumes, Ill. Attorney Robert L. Knupp, 407 N. Front Street, Harrisburg,
has agreed to accept service on behalf of Defendant James J. Touloumes,
McNEES WALLACE & NURICK LLC
///James ~'. DeAngelo
(,/'Supreme Court I.D. 62377
100 Pine Street,
P.O. Box 1166
Harrisburg, PA 17108-1166
717-232-8000
Attorneys for Plaintiff
Date: July 30, 2001
SYDNEY D. CAPLAN, : iN THE COURT OF COMMON PLEAS OF
Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA
v. NO. 01-3215 CIVIL TERM
JAMES J. TOULOUMES, JR., :
FROSO I. TOULOUMES, JURY TRIAL DEMANDED
CONSTANTINE G. J. TOULOUMES,
JAMES J. TOULOUMES, Ill, and
JFK-T GROUP, INC., :
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 a.qain~t
you. You are warned that if you fail to do so the case may proceed without you and a
iudRment 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, PA 17013
(717) 249-3166
AVISO
USTED HA SIDO DEMANDADO/A en corte. Si usted desea defenderse de las
demandas que se presentan mas adelante en las siguientes paginas, debe tomar
accion dentro de los proximos veinte (20) dias despues de la notificacion de esta
Demanda y Aviso radicando personalmente o por medio de un abogado una
comparecencia escdta y radicando en la Corte por escrito sus defensas de, y
objecciones a, las demandas presentadas aqui en contra suya. Se le advierte de que si
usted faila de tomar accion como se describe anteriormente, el caso puede proceder
sin usted y un fallo por cualquier suma de dinero reclamada en la demanda o cualquier
otra reclamacion o remedio solicitado por el demandante puede ser dictado en contra
suya por ia Corte sin mas aviso adicional. Usted puede perder dinero o propiedad u
otros derechos importantes pare usted.
USTED DEBE LLEVAR ESTE DOCUMENTO A SU ABODAGO
IMMEDIATAMENTE. SI USTI:D NO TIENE UN ABOGADO O NO PUEDE PAGARLE
A UNO, LLAME O VAYA A LA SIGUIENTE OFICINA PARA AVERIGUAR DONDE
PUEDE ENCONTRAR ASISTENCIA LEGAL.
CUMBERLAND COUNTY BAR ASSOCIATION
2 Liberty Avenue
Cadisle, PA 17013
(717) 249-3166
Respectfully submitted,
McNEES, WALLACE & NURICK
James P. DeAngelo
Supreme Court I.D. 62377
Debra P. Foudas
Supreme Court I.D. 62047
100 Pine Street
P.O. Box 1166
Harrisburg, PA 17108-1166
717-232-8000
Attorneys for Plaintiff
Date: November 29, 2001
SYDNEY D. CAPLAN, IN THE COURT OF COMMON PLEAS OF
Plaintiff : CUMBERLAND COUNTY, PENNSYLVANIA
v. NO. 01-3215 CIVIL TERM
JAMES J. TOULOUMES, JR.,
FROSO I. TOULOUMES,
CONSTANTINE G. J. TOULOUMES,
JAMES J. TOULOUMES, Ill, and
JFK-T GROUP, INC.,
ACCEPTANCE OF SERVICE
I accept service of the Writ of Summons on behalf of Defendant James J.
Touloumes, III, and certify that I am authorized to do so.
Knupp'~rKodak ~
407 North Front Street
P. O. Box 11848
Harrisburg, PA 17108-1848
(717) 238-7151
SYDNEY 3. CAPLAN, IN THE COURT OF COMMON PLEAS OF
Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA
- v. NO. 01-3215 CIVIL TERM
:
JAMES J. TOULOUMES, JR.,
EFFRONSINI I. TOULOUMES
a/Ida FROSO I. TOULOUMES, JURY TRIAL DEMANDED
CONSTANTINE G. J. TOULOUMES,
JAMES J. TOULOUMES, III, and
JFK-T GROUP, INC., :
COMPLAINT
The Parties
1. Plaintiff, Sydney D. Caplan, is an adult individual residing at 4078
Greystone Drive, Harrisburg, Pennsylvania.
2. Defendants James J. Touloumes, Jr. and Effronsini I. Touloumes a/ida
Froso I. Touloumes are husband and wife and are adult individuals residing at 328 West
Old York Road, South Middleton Township, Cumberland County, Pennsylvania.
3. Defendant Constantine G. J. Touloumes is an adult individual residing at 3
West Pine Street, Mount Holly Springs, Cumberland County, Pennsylvania.
4. Defendant James J. Touloumes, III is an adult individual believed to reside
at 272 Sue Drive, Hummelstown, Dauphin County, Pennsylvania.
5. James J. Touloumes, Jr. and Effronsini I. Touloumes a/ida Froso I.
Toutoumes are the parents of Constantine G. J. Touloumes and James J. Touloumes,
II1.
6. Defendant JFK-T Group, Inc. ("JFK-T") is a Pennsylvania corporation
d/b/a Kosta's, a restaurant with its primary place of business in East Pennsboro
Township, Cumberland County, Pennsylvania and having a street address of 451 North
21st Street, Camp Hill, PA 17011 (the "Real Property").
7. Upon information and belief, the individual Touloumeses are all the
officers, directors, and shareholders of JFK-T, each owning a 25% interest in JFK-T.
8. The individual Touloumeses are the owners of the Real Property on which
Kosta's is located, and lease the Real Property to JFK-T.
The Loans
9. On various occasions beginning in 1995, the individual Touloumeses
approached Plaintiff about advancing working capital for Kosta's and otherwise helping
with financing for Kosta's.
10. ,At Defendants' request, Plaintiff provided funding to JFK-T and the
individual Touloumeses as follows:
a. Between July 17, 1996 and June 2, 1999, Plaintiff provided cash
loans totaling $307,250.00, as listed in Exhibit A attached hereto and
incorporated herein;
b. Since October 10, 1995, Plaintiff has made, and continues to make,
interest payments on Loan No. 101-875-0009417 from Mellon Bank; as of
January 10, 2001, said interest payments, which are continuing to accrue
monthly, totaled $21,090.41, as listed on Exhibit B attached hereto and
incorporated herein;
c. Pursuant to a Guaranty Agreement and a Pledge Agreement dated
August 28, 1995, Plaintiff guaranteed $300,000 of a mortgage note dated August
28, 1995, owed by Defendants to Commerce Bank, as demonstrated by Exhibits
C (the Guaranty Agreement), D (the Pledge Agreement), and E (the mortgage
note) attached hereto and incorporated herein;
d. On or about June 26, 1998, Plaintiff posted interest-bearing
account no. 410160207 at Commerce Bank as an overdraft checking
protection/cash reserve account for Defendants' benefit under their loan no.
510021454, as amended, as shown on Exhibit F attached hereto and
incorporated herein; and to date, Defendants have drawn approximately $25,000
on this account;
e. On or about July 22, 1998, Plaintiff substituted himself for the
Defendants as the primary obligor to Commerce Bank under a prior line of credit
loan to Defendants on which Plaintiff had previously been a guarantor based on
a pledge of securities; the current loan, No. 2776595, shown on Exhibit G
attached hereto and incorporated herein, is in the principal amount of
$249,406.97, which includes more than $143,630.70 of additional advances
made by Commerce to Defendants subsequent to July 22, 1998, some of which
was deposited into Kosta's general operating accounts and some of which was
used to make payments on the mortgage to Commerce Bank for the Real
Property on which Kosta's is located, which Real Property is owned by the
individual Touloumeses and on which mortgage the mortgagors and primary
obligors are the individual Touloumeses;
f. Since February 4, 1999, Plaintiff has made, and continues to make,
interest payments on Loan No. 2776595 from Commerce Bank; as of November
3
6, 2001 said interest payments, which are continuing to accrue monthly, totaled
$72,252.69, as listed on Exhibit H attached hereto and incorporated herein.
11. All of the above referenced advances and loans were made at the request
of the individual Touloumeses.
12. On various dates, Defendants tendered checks to Plaintiff as evidence of
part of their indebtedness, requesting that Plaintiff hold the checks pending instructions
from Defendants to deposit them for collection.
13. When Defendants tendered the aforementioned checks, they advised
Plaintiff that the checks were not presently "good," £e., Defendants did not then have
sufficient funds to cover the checks, but that they would advise Plaintiff when they had
sufficient funds to cover the checks; upon information and belief, the checks have never
been "good."
14. Defendants have repeatedly acknowledged their indebtedness and made
promises to Plaintiff to begin making payments, but no payments have been made.
15. Repayment of all amounts loaned is presently due and owing.
16. Plaintiff has demanded repayment of the loans from Defendants, but
Defendants have failed or refused to repay the amounts owed.
Piercin,q the Corporate Veil
17. JFK-T is a sham corporation which is merely a fa(~ade for the operations of
its shareholders, the individual Touloumeses.
18. JFK-T has been, since its inception, grossly undercapitalized. Kosta's has
operated with virtually no working capital and its working checking account has been
chronically substantially overdrawn, necessitating the borrowing of to pay operating
4
expenses; on multiple occasions it was unable to meet its payroll from its payroll
account.
19. JFK-T has not paid dividends in the regular and ordinary course of
business; rather, JFK-T simply advances funds to the individual Touloumeses on
demand, without regard to (i) whether JFK-T is solvent, (ii) whether the advances are a
proper use of corporate funds, and (iii) whether the advances reflect the share interests
of the shareholders.
20. JFK-T has failed to maintain proper corporate records.
21. The officers and directors of JFK-T do not actually function.
22. One or more of the shareholders have used assets of the corporation for
personal interests or expenses, including, but not limited to:
a. Payment of a student loan;
b. Withdrawing money from the corporation for personal use;
c. Channeling funds borrowed from Plaintiff by drawing on Plaintiffs
Commerce Bank line of credit No. 2776595, to pay on the Commerce Bank
mortgage owed by the individual shareholders;
d. Paying down the shareholders' mortgage with corporate funds,
while the corporation was not paying its own debts;
e. Causing the corporation to advance money to James J. Touloumes,
Jr. d/b/a T. Jimmy's Place for use in another restaurant solely owned by him;
f. Making payments from Kosta's operating account to or for T.
Jimmy's Place.
5
23. One or more of the shareholders have commingled corporate and
personal funds and affairs by, interalia:
a. Writing corporate checks to themselves for cash;
b. Obtaining a Commerce Bank loan in their individual names for use
by JFK-T in purchasing the fixtures and equipment, leasehold improvements,
liquor license, and inventory of the restaurant which became Kosta's (formerly
Casa Rillo);
c. Channeling funds borrowed from Plaintiff by drawing on Plaintiff's
Commerce Bank line of credit No. 2776595, both to make deposits in Kosta's
general operating account and to pay on the Commerce Bank mortgage owed by
the individual shareholders.
24. Because the corporation is merely the alter ego of the shareholders, the
individual shareholders are personally, jointly and severally liable for the debts of JFK-T.
Count I - Breach of Contract
25. The averments of paragraphs 1-24 are incorporated herein by reference.
26. Defendants entered into a binding oral agreement under which Plaintiff
provided funds to them as described above, and they agreed to repay all amounts
loaned.
27. Defendants currently are jointly and severally indebted to Plaintiff in the
amount of $675,000.85 plus interest.
WHEREFORE, Plaintiff demands judgment against Defendants, jointly and
severally, in the amount of $675,000.85 plus interest, costs of suit, and such other and
further relief as the Court deems just.
6
Count II - Promissory Estoppel
28. The averments of paragraphs 1-24 and 27 ara incorporated heroin by
referonce.
29. Defendants requested loans from Plaintiff and promised repayment of
such loans, which promises wero intended to, and did, induce Plaintiff to make the loans
to his financial detriment.
30. Defendants accepted the loans provided by Plaintiff.
31. Defendants acknowledged their debt to Plaintiff.
32. Defendants are estopped from denying their debt to Plaintiff.
WHEREFORE, Plaintiff demands judgment against Defendants, jointly and
severally, in the amount of $675,000.85 plus interest, costs of suit, and such other and
further relief as the Court deems just.
Count III - Unjust Enrichment
33. The averments of paragraphs 1-24 and 27 ara incorporated herein by
reference.
34. Defendants roceived substantial monetary benefits from Plaintiff.
35. Plaintiff provided financial benefits to Defendants with the expectation of
being ropaid, and Defendants wero awaro of Plaintiff's expectation of repayment.
36. Defendants will be unjustly enriched if they are not required to ropay their
debt to Plaintiff.
7
WHEREFORE, Plaintiff demands judgment against Defendants, jointly and
severally, in the amount of $675,000.85 plus interest, costs of suit, and such other and
further relief as the Court deems just.
McNEES WALLACE & NURICK LLC
'" James P. DeAngelo
Supreme Court I.D. 62377
Debra P. Fourlas
Supreme Court I.D. 62047
100 Pine Street
P.O. Box 1166
Harrisburg, PA 17108-1166
717-232-8000
Attorneys for Plaintiff
Date: November /~,2001
8
--', -_-,, -,,-r'~'~ NO~J (9'0~. t~'~,r ?,1o.012
HENEE$,I~IIqLLREE,NI-IFIEk2 I]:·, 1¢ .5, .... uO .....
VERIFICATION
Subject to the penalties of 18 Pa. C.S.A. §4904, relating to unswom falsification
to authorities, I hereby certify that I am a party to this action and that the facts set forth
in the foregoing document are true and correct to the best of my knowledge, information
and belief.
Dated: /~' /'~" ,2001
Exhibit A
EXHIBIT A
Date Check # Amount
07/17/96 12856 550.00
03/29/96 12734 10,000.00
06/01/96 12805 200.00
07/30/96 12866 11,500.00
08/28/96 12895 16,000.00
09/05/96 12901 5,000.00
09/19/96 12918 6,000.00
09/30/96 12929 12,000.00
10/03/96 12934 25,000.00
11/05/96 12962 5,000.00
12/04/96 12994 8,000.00
12/31/96 13015 15,000.00
03/31/97 13105 15,000.00
04/04/97 13113 5,000.00
04/18/97 13138 10,000.00
05/29/97 13178 5,000.00
06/11/97 13185 7,000.00
06/24/97 13199 13,000.00
06/30/97 13201 15,000.00
07/11/97 13215 I0,000.00
07/24/97 13223 10,000.00
08/19/97 13238 10,000.00
09/30/97 13286 5,000.00
09/30/97 13288 10,000.00
03/12/98 13436 15,000.00
06/30/98 13540 29,000.00
10/29/98 13666 16,000.00
01/28/99 13758 8,000.00
06/02/99 13895 10,000.00
TOTAL 307,250.00
{A289358:}
Exhibit B
EXHIBIT "B"
Mellon Bank '
Date of Payment Interest
to Mellon Bank Payment
10/10/95 $303.81
11/10/95 376.73
1/10/96 369.45
2/9/96 365.97
3/8/96 329.17
4/10/96 382.71
5/10/96 412.50
6/10/96 426.25
7/10/96 412.50
8/9/96 426.25
9/10/96 426.25
10/10/96 412.50
11/8/96 426.25
12/10/96 412.50
1/10/97 424.47
2/10/97 417.40
3/10/97 370.72
4/10/97 409.51
5/9/97 395.71
6/10/97 401.87
7/10/97 382.63
8/8/97 388.79
9/10/97 381.91
10/10/97 363.81
11/10/97 369.68
12/10/97 351.79
Date of Payment Interest
to Mellon Bank Payment
1/9/98 357.45
2/10/98 351.32
3/10/98 312.19
4/10/98 339.88
5/8/98 323.44
6/10/98 328.27
7/10/98 312.74
8/10/98 317.78
9/10/98 312.48
10/9/98 297.36
11/10/98 283.33
12/10/98 264.42
1/8/99 266.39
2/10/99 261.66
3/10/99 232.66
4/9/99 253.29
5/10/99 240.89
6/10/99 244.91
7/9/99 379.66
8/10/99 249.15
9/10/99 310.80
10/12/99 300.17
11/10/99 305.34
12/10/99 296.98
1/10/00 303.86
2/10/00 298.79
3/10/00 284.92
4/10/00 302.63
5/10/00 291.11
6/12/00 308.52
-2-
Date of Payment Interest
to Mellon Bank Payment
7/10/00 297.45
8/10/00 301.91
9/11/00 296.87
10/10/00 282.68
11/10/00 287.o7
12/11/00 273.18
1/10/01 277.73
$21,090.41
-3-
Exhibit C
GUARANTY
THIS GUARANTY, (the "Gu~ranty")~is executed and
delivered on this ~ day of ~-~ , 1995, by ~YI1N~Y D.
CAPLAN and BEATRJCE ~APLAN, his .wifel adult~individuals wi~h an
~3'~ a%,, ~" ~'~A,~x ~, ~f~ee~E~ ~ lTllO (collectively
Guarantor ), in favor of COMMERCE BANK/HARRISBURG, N.A., a
national banking association, with offices at 100 Senate Avenue,
P. O. Box 8599, Camp Hill, Pennsylvania 17001-9966 ("Lender"), to
secure certain obligations of JAMES J. TOULOUMES, JR., FROSO I.
TOULOUMES, CONSTANTINE G. J. TOULOUMES, and JAMES J. TOULOUMES,
III (collectively "Borrower").
BACKGROUND
A. Lender has agreed to make a $1,400,000 loan (the
"Loan") to Borrower, the proceeds of which shall be used by
Borrower to fund in part the cost of acquisition of the real
estate and improvements, tangible and i~.~,a~gib].e personal
property issued in connection with the operation of a certain
restaurant business situate at .4~1 Norr~ .2~t Street, camp Hill,
Pennsylvania (the "Mortgaged Premises") and to be known as
"T-Kosta'~ ~$taurant." The Loan shall be secured by, among
othe~ thln~s, a flr~f lien mortgage and security agreement on the
Mortgaged Premises and a first lien perfected security interest
in the tangible and intangible personal property situate on the
Mortgaged Premises and used in connection with the restaurant
including PA Liquor License No. R-18645.
B. In connection with the Loan, Borrower has executed
and delivered to Lender a Promissory Note (the "Note") in the
face amount of One Million Four Hundred Thousand ($1,400,000)
Dollars, a Mortgage and Security Agreement from Borrower, as
mortgagor (the "Mortgage"), encumbering the Mortgaged Premises,
and certain other collateral documents, all dated of even date
herewith. The Note, Mortgage and other collateral documents are
sometimes referred to herein, collectively, as the "Loan
Documents" or, individually, as a "Loan Document". The ~K~Qipal
balance of the N~te~ _to~e~her with all interest thereon and all
Other sum~ pay~SIe thereunder or unde~ 'the Mortgage or secured by
the Loan Documents is hereinafter collectively referred to as
the !~Aggregate Debt~.
C. In order to induce Lender to make the Loan, the
Guarantor has agreed to execute and deliver this Guaranty to
Lender.
NOW, THEREFORE, in consideration of the premises recited
above, and intending to be legally bound hereby, Guarantor and,
if there is more than one, each Guarantor, jointly and severally,
hereby agrees as follows:
1. ObliGations. The following guarantees and
obligations (together, the "Obligations") are undertaken by
Guarantor:
1.1. Guarantor hereby unconditionally and jointly
and severally guarantees and becomes surety to Lender for (a) the
full and prompt payment of the Aggregate Debt and (b) the full
and timely performance of all of Borrower's obligations under the
Note and any other Loan Document. The obligations of Guarantor
constitute a guaranty= Qf. pa~e_nt and not merely of collection,
are absolute and unconditional under all circumstances and shall
not in any event be discharged, impaired, or otherwise affected
except by payment to Lender. Guarantor agrees that it will,
within fifteen (15) days of written notice from Lender that any
Event of Default (as defined in the Loan Documents) has occurred
under the Note or under any Loan Document, pay directly to Lender
the then existing amount of the Aggregate Debt. Guarantor
further agrees that any payment required hereunder will be made
to Lender regardless of whether such sums have become due by
reason of the maturity of the Note or acceleration of the
Aggregate Debt. The proceeds of any amounts paid pursuant to
this Guaranty will be applied first to the payment of accrued
interest, if any, on the Note, then to any other sums payable in
connection with the Note or secured by the Loan Documents, and
the balance of the proceeds will be applied to reduce the then
outstanding principal amount of the Note, whether then matured or
not, in the inverse order of its maturity.
that the total liability of Guarantor undmr this Guaranty shall
not ex~eed't~ ~um d~Th~e~'~red Thousand ($300,00u)Doilars.
1.2. If Borrower defaults with respect to any
matter herein guaranteed, then, within ten (10) days after
written notice from Lender, subject to the limitation set forth
in paragraph 1.1, Guarantor will immediately assume all
responsibility for the completion of all obligations of Borrower
under the terms of the Note or any other Loan Document, or take
such other action as Lender may request to remedy such default,
or both.
1.3. Lender shall have the right to require
Guarantor to pay, comply with and satisfy its obligations and
liabilities under this Guaranty and shall have the right to
proceed immediately against Guarantor with respect thereto,
2
without being required to bring any proceeding or take any
action of any kind against Borrower or any other Guarantor or any
other person, entity or property prior thereto, the liability of
Guarantor hereunder being joint and several and, in any event,
independent of and separate from the liability of Borrower, any
other guarantors and persons and the availability of other
collateral security for the Note and the Loan Documents.
2. Cancellation. This Guaranty and all obligations and
liabilities of Guarantor hereunder will be canceled when the
Aggregate Deb~ has been paid in ful~ ~¥~v~ded~ h0~e~e~ that
this~/laran~y ~ha'~Y~'re~a~n ~t'foru~-~d i~f~ct for so long
as such payment may be voided in bankruptcy proceedings as a
preference or for any other reason.
3. Costs and Fees. Guarantor hereby agrees that if it
does not satisfy its obligations under this Guaranty in
accordance with the terms hereof, the same shall be considered an
event of default hereunder as to such defaulting Guarantor and
Lender shall have the right, in addition to the other rights
described in this Guaranty and subject to the limitation set
forth in paragraph 1.1, to collect from such defaulting Guarantor
all costs, fees and expenses (including reasonable attorneys'
fees) incurred by Lender in connection with the enforcement of
this Guaranty against such Guarantor, as well as interest on the
unpaid liability hereunder at the Default Rate set forth in the
Note, from and after the date of such Guarantor's default through
the date of payment.
4. ~DkruDtcv of Borrower or other'Guarantors. The
obligations of Guarantor under this Guaranty shall not be
discharged, impaired or otherwise affected by the insolvency,
bankruptcy, liquidation, readjustment, composition, dissolution
or other similar proceeding involving or affecting Borrower or
any other Guarantor, proceedings affecting the ownership of any
of the above through merger, consolidation or otherwise,
inconsistent orders in or claims by parties to any such
proceedings or any other release of obligations by operation of
law.
5. A~reements and Waivers. Guarantor jointly and
severally hereby:
5.1. Agrees that its obligations hereunder shall
not be released or otherwise affected by (and hereby waives
notice of) any agreement, amendment, release, suspension,
compromise, forbearance, indulgence, waiver, extension, renewal,
supplement or modification of any of the Loan Documents, or any
other obligations of Borrower to Lender.
5.2. Consents that Lender may, without affecting
the liability of Guarantor under this Guaranty, (I) exchange,
release or surrender any property pledged by or on behalf of
Borrower or any other surety or guarantor of any liabilities of
Borrower to Lender, (ii) renew or change, with the consent of
Borrower, the terms of any of Borrower's liabilities to Lender,
or (iii) waive any of Lender's rights or remedies against
Borrower or any other surety or guarantor of any obligations of
Borrower.
5.3 Agrees that its liability under this Guaranty
shall not be reduced or affected either by any payment made by or
on behalf of any other Guarantor under this Guaranty or by
failure of any such party to make payment.
5.4. Agrees that its liability under this Guaranty
shall be in addition to that stated in any other guaranty of
parties other than the undersigned or any other guaranty that has
been or may be hereafter given by any of the undersigned and
shall not be reduced or affected by any payment made under any
such guaranty.
5.5. Agrees that any failure or delay by Lender to
exercise any right under this Guaranty or under any other
guaranty or with respect to any of the Loan Documents or
otherwise with respect to the Aggregate Debt shall not be
construed as a waiver of the right to exercise the same or any
other right hereunder at any time and from time to time
thereafter.
5.6. Consents that its obligations under this
Guaranty shall not be affected by any of Borrower's liabilities
to Lender in excess of the amounts guaranteed hereunder, to the
extent such liabilities result from any extension or modification
of the Note, the Mortgage or any other Loan Document; but that
any payment received by Lender from Borrower may first be
credited against any such excess liability.
5.7. Agrees that Lender shall have, as security
for the undertakings under this Guaranty, a lien upon, a security
interest in and right of set-off against all property of the
undersigned now or at any time in Lender's possession in any
capacity whatsoever, exercisable only upon the occurrence of
default under the Note, this Guaranty or any other Loan Document.
5.8. Agrees that Lender shall not, under any
4
circumstances, be required to exhaust remedies or proceed against
Borrower, other guarantors, sureties, parties, or any other
security for the Aggregate Debt before proceeding under this
Guaranty against any of the undersigned.
5.9. Agrees that under no circumstances shall it
become subrogated to the claims or liens of Lender against
Borrower or any other Guarantor and that all amounts due to
Lender shall have priority over any amounts, whether or not
related to the Loan Documents or the Mortgaged Premises, payable
now or hereafter from Borrower to Guarantor.
5.10. Agrees that the obligations undertaken in
this Guaranty shall not be affected by any provision in the Loan
Documents limiting Lender's rights against Borrower to the
Mortgaged Premises, or limiting Lender's rights to a deficiency
judgment against Borrower.
5.11. Agrees that to the extent it controls
Borrower, it will neither take or cause to be taken any action,
or permit any inaction, which will violate or cause a default
under any of the Loan Documents.
5.12. Agrees that notice or demand hereunder by
Lender shall be by hand delivery or registered or certified mail,
postage prepaid, addressed to a party at its address set forth on
the first page hereof, and shall be deemed given when hand
delivered, or if mailed, upon deposit of such notice in the
United States mail. Any Guarantor may, from time to time, by
n6tice to Lender as provided for in the Loan Documents, designate
a different address to which notice to him hereunder shall be
sent.
5.13. Waives the right to marshaling of Borrower's
assets or any stay of execution and the benefit of all exemption
laws, to the extent permitted by law, and other protection
granted by law to guarantors or sureties, now or hereafter in
effect with respect to any action or proceeding brought by Lender
against it.
5.14. Agrees that no single exercise of the power
to bring any action or institute any proceeding shall be deemed
to exhaust such power, but such power shall continue undiminished
and may be exercised from time to time as often as Lender may
elect until all of Guarantor's liabilities and obligations
hereunder have been satisfied.
5.15. Agrees that its liability under this Guaranty
shall in no way be released or otherwise affected by the
commencement, existence or completion of any proceeding against
Borrower, one or more of the other Guarantors or any other
person or entity or otherwise with respect to the collection of
the Aggregate Debt; and Lender shall be under no obligation to
take any action and shall not be liable for any action taken or
any failure to take action or any delay in taking action against
any of the Guarantors, Borrower or any other person or entity or
otherwise with respect to the Aggregate Debt.
5.16. Waives any notice of (I) Lender's intention
to act in reliance on this Guaranty, (ii) any presentment,
demand, protest or notice of dishonor, nonpayment or other
default with respect to the Aggregate Debt, and (iii) the
commencement or prosecution of any enforcement proceeding against
Borrower or any of the other Guarantors or any other person or
entity with respect to the Aggregate Debt or otherwise.
5.17. Represents and acknowledges that the
indebtedness evidenced by the Note and secured by the Loan
Documents is and will be of direct benefit, interest and
advantage to it.
5.18. Irrevocably waives all claims of waiver,
release, surrender, alteration or compromise and all defenses,
set-offs, counterclaims, recoupments, reductions, limitations or
impairments.
6. Securitv. The Guaranty is secured b~ the ~l~g~ and
deliver~ o~:25~29 sh~.~S of tJle~..c~m~on ~t0~ of ~irst Harrisburg
Banc~r, Inc. ('t~' '~res'') ~and by a~y S'~b~it~n~ the~e'~o~ ~r
addft'£U~s or accessions thereto, which may be hereafter made, and
any cash and non-cash proceeds thereof, and by any and all
monies, securities or property of the undersigned that may have
been or may be hereafter pledged to or come into possession of
Bank, its transferees or assigns or in which Bank may otherwise
have been granted a security interest or acquired a lien by
Guarantor (all of the foregoing hereinafter collectively called
"Collateral") and Guarantor hereby grants a continuing lien and
security interest in Collateral to secure payment of the
Obligations of Guarantor hereunder which shall be governed by a
Pledge Agreement of even date herewith executed by Guarantor,
Sydney D. Caplan, and delivered to the Bank.
7. Financial Statemen~. Guarantor represents and
warrants to Lender that the financial statements heretofore
delivered by such Guarantor to Lender are true and correct in all
respects, have been prepared in accordance with generally
accepted accounting principles, fairly represent the financial
condition of such Guarantor as of the date thereof, and that no
material change has thereafter occurred in the financial
conditions reflected therein. Guarantor agrees to deliver to
Lender such future financial statements and other information as
are required to be delivered to Lender under any of the Loan
Documents and as Lender from time to time may reasonably request.
8. Confession of Judgment. IN THE EVENT OF DEFAULT BY
ANY GUARANTOR HEREUNDER, SUCH GU~=RANTOR HEREBY IRREVOCABLY
AUTHORIZES ANY ATTORNEY OF ANY COURT OF RECORD TO APPEAR FOR AND
CONFESS JUDGMENT AGAINST GUARANTOR AFTER DEFAULT HEREUNDER FOR
THE AMOUNT FOR WHICH IT MAY BE LIABLE TO LENDER (OR ANY ASSIGNEE
OR HOLDER OF THE NOTE OR MORTGAGE) UNDER THIS GU~RANTY, AS
EVIDENCED BY AN AFFIDAVIT SIGNED BY AN AUTHORIZED OFFICER OR
AGENT FOR LENDER, ITS SUCCESSOR OR ASSIGNEE, SETTING FORTH THE
AMOUNT THEN DUE, PLUS REASONABLE ATTORNEYS' FEES, WITH COSTS OF
SUIT, AND RELEASE OF ERRORS. IF A COPY HEREOF, VERIFIED BY AN
AFFIDAVIT SHALL HAVE BEEN FILED IN ANY SUCH PROCEEDING, IT SHA~L
NOT BE NECESSARY TO FILE THE ORIGINAL AS A WARP-3tNT OF ATTORNEY.
NO SINGLE EXERCISE OF THE FOREGOING WARRANT AND POWER TO CONFESS
JUDGMENT SHALL BE DEEMED TO EXHAUST THE POWER, WHETHER OR NOT ANY
SUCH EXERCISE SHALL BE HELD BY ANY COURT TO BE INVALID, VOIDABLE
OR VOID, BUT THE POWER SHALL CONTINUE UNDIMINISHED AND MAY BE
EXERCISED FROM TIME TO TIME AS OFTEN AS LENDER, ITS SUCCESSORS OR
ANY ASSIGNS SHALL ELECT, UNTIL ALL SUMS PAYABLE HEREUNDER HAVE
BEEN PAID IN FULL AND ALL OBLIGATIONS OF ALL SURETIES HAVE BEEN
COMPLIED WITH AND PERFORMED.
9. ~. Before payment and performance in full
of the obligations of Borrower and Guarantor under the Note,
Mortgage and any other Loan Document, Guarantor s~al! not have
any.right and shall not assert any right to b~ s~Dr~gated to any
right of th'e h~ider of'~h~N6te.~ ' N~ s~br~a~'on o'f~ Guarantor
shall require the holder of the Note to proceed against any
person or entity or to resort to any security or to take any
other action of any kind as a result of subrogation.
10. _C~. If there is more than one Guarantor,
this Guaranty may be executed in one or more counterparts, each
of which shall be deemed an original. Said counterparts shall
constitute one and the same instrument and shall be binding upon
each of the undersigned as fully and completely as if all had
signed one instrument so that the joint and several liability of
each of the undersigned hereunder shall be unaffected by the
failure of any other Guarantor to execute any of said
counterparts.
11. Jurisdiction; Service of Process. Guarantor hereby
consents to the jurisdiction of the courts of Pennsylvania and/or
the United States District Court for the Middle District of
?
Pennsylvania in any and all actions or proceedings arising
hereunder or pursuant hereto, and irrevocably agrees to service
of process by certified mail, return receipt requested, to its
address set forth herein or such other address as each Guarantor
may direct by notice to Lender.
12. ~. The invalidity or unenforceability
of any one or more provisions of this Guaranty shall not affect
any other provision, and in the event that any agreement or
obligation contained in this Guaranty is held to be in violation
of law, such agreement or obligation shall be deemed to be the
agreement or obligation of Guarantor to the fullest extent
permitted by law. This Guaranty will be governed by Pennsylvania
law and may be amended only by a written instrument executed by
Guarantor and Lender. The Qb]~q.~iO~ ~aGh~X~or_, if
there is mor9 ~ban one Guarantor, under this Guaran%y will be
joi~ and ~¥~. TSe ~CoVisions bf fhis Guaranty will bind and
inure to the benefit of the heirs, executors, administrators,
legal representatives, successors and assigns of each Guarantor
and Lender. Capitalized terms not defined herein shall have the
meanings given to them in the Mortgage. Whenever the context
requires, all terms used in the singular will be construed in the
plural and vice versa, and each gender will include each other
gender.
IN WITNESS WHEREOF, Guarantor has executed and delivered
this Guaranty as of the date first written above.
Witne~s~..O-~-~j~'-' Sydney D. Caplan
W Beatrice Caplan
COMMONWEALTH OF PENNSYLVANIA :
: SS
COUNTY oF r13~ ~ ?~: ~
On this, the ~ day of ~q~m7~ , 1995, before me,
the undersigned, personally appeared S~dney D. Caplan and
Beatrice Caplan, his wife, known to me (or satisfactorily proven)
to be the persons whose names are subscribed to the within
document and who acknowledged that they executed the foregoing
Guaranty for the purposes therein contained.
IN WITNESS WHEREOF, I hereunto set my hand and official
seal.
Not~y Public
My Commission Expires:
Exhibit D
PLEDGE AGREEi~ENT
SYDNEY D. CAPLAN and BEATRICE CAPLAN, husband and wife,
(herein referred to as the "Pledgor") and COMMERCE
BANK/HARRISBURG, N.A., a national banking institution having
offices located at 100 Senate Avenue, P. O. Box 8599, Camp Hill,
Pennsylvania 17001-8599 (herein referred to as the "Lender"),
intending to be legally bound, agree as follows:
preliminary Statement. The Lender has agreed to extend
credit to James J. Touloumes, Jr. and Froso I. Touloumes, his
wife, and Constantine G. J. Touloumes, and James J. Touloumes,
III, (collectively "Borrower") as evidenced by a Promissory Note
in the principal amount of $1,400,000 of even date herewith. As
a condition to the extension of credit to Borrower the Lender has
required and the Pledgor has executed a Guaranty of even date
herewith in favor of Lender guaranteeing and becoming the surety
to Lender for the full and prompt payment of the Note and the
performance of the Borrower's obligations under the Note and has
agreed to execute this Pledge Agreement pledging and granting to
Lender as security for the Guaranty a first lien security
interest in 25,829 share~ ~f ~he.~OA~mOD ~.t~c~ o~ ~r~t Harrisburg
Bancor, Inc. (the "Shares"). Terms not otherwise defined herein
shall have the meanings ascribed to them in the Guaranty.
NOW, THEREFOP~E, in consideration of the premises, the
Pledgor hereby agrees as follows:
SECTION I. Pledge. The Pledgor hereby pledges to the
Lender, and grants to the Lender a security interest in the
following, whether now owned or hereafter acquired (the "Pledged
collateral"):
(A) the Shares and the certificates representing the
Shares, as listed and described on Schedule I hereto;
(B) all dividends, interest, cash, instruments and
other property from time to time received, receivable or
otherwise distributed in respect of or in exchange for the
Shares;
(C) earnings attributable to the foregoing and all
documents, certificates, instruments and general intangibles
representing such earnings or in which such earnings may from
time to time be invested.
SECTION II. ~curi~y for ObliGations. This Agreement
secures the payment of all obligations of the Pledgor now or
hereafter existing under the Guaranty, whether for indebtedness,
interest, fees, premium, expenses or otherwise, and all
obligations of the Pledgor now or hereafter existing under this
Agreement (all such obligations of the Borrower and the Pledgor
being the "Obligations").
SECTION III. Delivery of PledGed Collateral. All
certificates or instruments representing or evidencing the
Pledged Collateral shall be delivered to an held by or on behalf
of the Lender pursuant hereto and shall be in suitable form for
transfer by delivery, or shall be accompanied by duly executed
instruments of transfer or assignment in blank, all in form and
substance satisfactory to the Lender. the Lender shall.have the
right, at any time in its discretion and without notice to the
Pledgor, to transfer to or to register in the name of the Lender
or any of its nominees any or all of the Pledged Collateral,
subject only to the revocable rights specified in Section VI (A).
In addition, the Lender shall have the right at any time to
exchange certificates or instruments representing or evidencing
Pledged Collateral for certificates or instruments of smaller or
larger denominations.
If at any time the fair market value of the shares
representing the certificates described on Schedule I hereto,
determined by reference to the closing sales price of the stock
as reported by the NASDAQ NMS is less than $300,000, the Pledgor
shall pledge, transfer, and assign to the Bank add~tlonal
marketable securities satisfactory to the Bank in its sole
discretion adequate to assure that at all times the fair market
value of the collateral sub~ect to t~li~ ~l~i~e A~r~ment shall
equal or exceed $400,000.
SECTION IV. Representations and Warranties. The
Pledgor represents and warrants as follows:
(A) The Pledged Collateral, in each case to the extent
they represent shares of capital stock, have been duly authorized
and validly issued and are fully paid and non-assessable.
(B) The Pledgor is, or, in the case of after-acquired
property, will be, the legal and beneficial owner of the Pledged
Collateral, in each case free and clear of any lien, security
interest, option or other charge or encun~Drance except for the
security interests created by this Agreement.
(C) The pledge made pursuant to this Agreement creates
a valid and perfected first priority security interest in such
Pledged Collateral, securing the payment of the Obligations.
2
(D) No authorization, approval, or other action by, and
no notice to or filing with, any governmental authority or
regulatory body is required either (i) for the pledge made
pursuant to this Agreement or for the execution, delivery or
performance of this Agreement by the Pledgor or (ii) for the
exercise by the Lender of the voting or other rights provided for
in this Agreement or the remedies in respect of the Pledged
Collateral pursuant to this Agreement (except as may be required
in connection with such disposition by laws affecting the
offering and sale of securities generally).
SECTION V. (A) Perfection and Priority of Security
3~l~9_~_~- The Pledgor agrees that the security interest of the
Lender in the Pledged Collateral shall at all times be valid,
perfected and enforceable against the Pledgor and all third
parties, in accordance with the terms of this Agreement, as
security for the Obligations, and such Pledged Collateral shall
not be subject to any security interests, liens, attachments or
other encumbrances that are prior to, on a parity with, or junior
to, the Lender's security interest.
(B) Further Assurances. The Pledgor agrees that at any
time and from time to time, at the expense of the Pledgor, the
Pledgor will execute and deliver all further instruments and
documents, and take all further action, that may be necessary or
desirable, or that the Lender may request, in order to perfect,
protect, and preserve the priority of and the security interest
granted hereby or to enable the Lender to exercise and enforce
its rights and remedies hereunder with respect to any Pledged
Collateral.
SECTION VI. Votin~ Riahts; Dividends: etc. (A) So
long as no Event of Default or event which, with the giving of
notice or the lapse of time or both, would constitute an Event of
Default shall have occurred and is continuing:
(1) The Pledgor shall be entitled to exercise any
and all voting and other consensual rights pertaining to
the Pledged Collateral or any part thereof for any
purpose not inconsistent with the terms of this
Agreement; provided, however, that the Pledgor shall
give the Lender at least five days' written notice of
the manner in which it intends to exercise, or the
reasons for refraining from exercising, any such right.
(2) The Ple~o~.,sh~.be entitled to receive and
retain any and all dividends paid in respect Of
pl~k~ed ~t~l~-~Provlded, however, that any and all
(a) dividends paid or payable other than in cash
in respect of, and instruments and other property
received, receivable or otherwise distributed in respect
of, or in exchange for, any Pledged Collateral,
(b) dividends and other distributions paid or
payable in cash in respect of any Pledged Collateral in
connection with a partial or total liquidation or
dissolution or in connection with a reduction of
capital, capital surplus or paid-in-surplus, and
(c) cash paid, payable or otherwise distributed in
redemption of, or in exchange for, any Pledged
Collateral,
shall be, and shall be forthwith delivered to the Lender
to hold as, or held for the account of the Lender as,
Pledged Collateral and shall, if received by the
Pledgor, be received in trust for the benefit of the
Lender, be segregated from the other property or funds
of the Pledgor, and be forthwith delivered to the Lender
as Pledged Collateral in the same form as so received
(with any necessary endorsement).
(3) The Lender shall execute and deliver (or cause
to be executed and delivered) to the Pledgor all such
proxies and other instruments as the Pledgor may
reasonably request for the purpose of enabling the
Pledgor to exercise the voting and other rights which it
is entitled to exercise pursuant to paragraph (1) above
and to receive and retain pursuant to paragraph (2)
above.
(B) If and so long as an Event of Default or an event
which, with the giving of notice or the lapse of time or both,
would constitute an Event of Default shall have occurred and is
continuing:
(1) All rights of the Pledgor to exercise the
voting and other consensual rights which it would
otherwise be entitled to exercise pursuant to Section VI
(A) (1), and to receive the dividend payments which it
would otherwise be authorized to receive and retain
pursuant to Section VI (A) (2), shall cease, and all
such rights shall thereupon become vested in the Lender
who shall thereupon have the sole right to exercise such
voting and other consensual rights and to receive and
hold as Pledged Collateral such dividend payments.
4
(2) Ail dividend payments which are received by
the Pledgor contrary to the provisions of paragraph (1)
of this Section VI (B) shall be received in trust for
the benefit of the Lender, shall be segregated from
other funds of the Pledgor and shall be forthwith paid
over to the Lender as Pledged Collateral in the same
form as so received (with any necessary endorsement).
SECTION VII. Lender Appointed Attorney-in-Fact. The
Pledgor hereby appoints the Lender the Pledgor's
attorney-in-fact, with full authority in the place and stead of
the Pledgor and in the name of the Pledgor or otherwise, from
time to time in the Lender's discretion to take any action and to
execute any instrument which the Lender may deem necessary or
advisable to accomplish the purposes of this Agreement,
including, with limitation, to receive, endorse and collect all
instruments made payable to the Pledgor representing any payment
or other distribution in respect of the Pledged Collateral or any
part thereof and to give full discharge for the same. This power
is given for security, is coupled with an interest, and is
irrevocable for so long as this Pledge remains in effect. The
power granted herein shall be unaffected by the disability of the
Pledgor.
SECTION VIII. Lender May Perform. If the Pledgor fails
to perform any agreements contained herein, the Lender may itself
perform, or cause performance of, such agreement, and the
expenses of the Lender incurred in connection therewith shall be
payable by the Pledgor under Section XI.
SECTION IX. ~~9-~. The Lender shall be
deemed to have exercised reasonable care in the custody and
preservation of the Pledged Collateral in its possession if the
Pledged Collateral is accorded treatment substantially equal to
that which the Lender accords its own property, it being
understood that the Lender shall not have any responsibility for
(a) ascertaining or taking action with respect to calls,
conversations, exchanges, tenders or other matters relative to
any Pledged Collateral, whether or not the Lender has or is
deemed to have knowledge of such matters, or (b) taking any
necessary steps to preserve rights against any parties with
respect to any Pledged Collateral.
SECTION X. Events of Default and Remedies upon Default.
An Event of Default shall exist hereunder if (a) a default exists
under the Guaranty, or (b) Pledgor breaches any term or condition
of this Agreement. If and so long as an Event of Default shall
have occurred and is continuing:
(A) The Lender may exercise in respect of the Pledged
Collateral, in addition to their rights and remedies provided for
herein or otherwise available to it, all the rights and remedies
of a secured party on default under the Uniform Commercial Code
(the "Code") in effect in the Commonwealth of Pennsylvania at
that time, and the Lender may also, without notice except as
specified below, sell the Pledged Collateral or any part thereof
in one or more parcels at public or private sale, at any
exchange, broker's board or at any of the Lender's offices or
elsewhere, for cash, credit or for future delivery, and upon such
other terms as the Lender may deem commercially reasonable. The
Pledgor agrees that, to the extent notice of sale shall be
required by law, at least ten days' notice to the Pledgor of the
time and place of any public sale or the time after which any
private sale is to be made shall constitute reasonable
notification. The Lender shall not be obligated to make any sale
of Pledged Collateral regardless of notice of sale having been
given. The Lender may adjourn any public or private sale from
time to time by announcement at the time and place fixed
therefor, and such sale may, without further notice, be made at
the time and place to which it was so adjourned.
(B) Any cash held by or on behalf of the Lender as
Pledged Collateral and all cash proceeds received by the Lender
in respect of any sale of, collection from, or other realization
upon all or any part of the Pledged Collateral may, in the
discretion of the Lender, be held by or on behalf of the Lender
as collateral for, and/or then or at any time thereafter applied
(after payment of any amounts payable to the Lender pursuant to
Section XII) in whole or in part by the Lender against, all or
any part of the Obligations in such order as the Lender shall
elect. Any surplus of such cash or cash proceeds held by the
Lender and remaining after payment in full of all the Obligations
shall be paid over to the Pledge or to whomever may be lawfully
entitled to receive such surplus.
SECTION XI. Expenses. The Pledgor will upon demand pay
to the Lender the amount of any and all reasonable expenses,
including the reasonable fees and expenses of its counsel and of
any experts and agents, which the Lender may incur in connection
with (a) the administration of this Agreement, (b) the custody or
preservation of, or the sale of, collection from, or other
realization upon, any of the Pledged Collateral, (c) the exercise
or enforcement of any of the rights of the Lender hereunder and
(d) the failure by the Pledgor to perform or observe any of the
provisions hereof.
SECTION XII. $~uritv Interest Absolute. All rights of
the Lender and security interests hereunder, and all obligations
of the Pledgor hereunder, shall be absolute and unconditional
irrespective of:
(A) any lack of validity or enforceability of the
Note or any other agreement or instrument relating
thereto;
(B) any change in the time, manner or place of
payment of, or in any other term of, all or any of the
obligations under the Note or any other amendment or
waiver of or any consent to any departure from the Note;
(C) any exchange, release or non-perfection of any
other collateral, or any release or amendment or waiver
of or consent to departure from any guaranty, for all or
any of the Obligations; or
(D) any other circumstance which might otherwise
constitute a defense to the performance of, or a
discharge of, obligations under the Note.
SECTION XIII. Continuing Security Interest. This
Agreement shall create a continuing security interest in the
Pledged Collateral and shall (a) remain in full force and effect
until payment in full of the Obligations, (b) be binding upon the
Pledgor, its successors, transferees and assigns, and (c) insure
to the benefit of the Lender and its successors, transferees and
assigns. Upon the payment in full of the Obligations, the
Pledgor shall be entitled to the return, upon its request and at
its expense, or otherwise applied pursuant to the terms hereof.
SECTION XIV. Additional RiGhts of Lender. In addition
to and not in limitation of the other rights granted to Lender,
the Lender may, at any time and from time to time take any one or
more of the following actions without liability to it:
(A) in its name or in the name of the Pledgor demand,
sue for, collect or receive any money or property at any time
payable or receivable on account of or in exchange for any of the
Pledged Collateral and, in connection therewith, endorse notes,
checks, drafts, money orders, documents of title or other
evidences of payment, shipment or storage in the name of Pledgor;
(B) make any compromise or settlement deemed advisable
with respect to any of the Pledged Collateral;
7
(C) add or release an guarantor, endorser, surety or
other party to any of the Pledged Collateral or the obligations.
SECTION XV. Governinq Law; Terms. This Agreement shall
be governed by and construed in accordance with the internal laws
of the Commonwealth of Pennsylvania. Unless otherwise defined
herein, terms defined in Article 9 of the Uniform Commercial Code
in the Commonwealth of Pennsylvania are used herein as therein
defined.
SECTION XVI. ~. (A) If more than one
Pledgor executes this Agreement, then this Agreement shall be the
joint and several obligation of each such Pledgor and each
Pledgor shall be deemed to have made the representations and
warranties and given the power of attorney herein set forth.
(B) the paragraph headings used herein are for
convenience only and do not affect or modify the terms'and
conditions hereof.
(C) If any provision hereof is found by a court of
competent jurisdiction to be prohibited or unenforceable, it
shall be ineffective only to the extent of such prohibition or
unenforceability, and such prohibition or unenforceability shall
not invalidate the balance of such provision to the extent it is
not prohibited or unenforceable, nor invalidate the other
provisions hereof, all of which shall be liberally construed in
favor of Lender in order to effect the provisions hereof.
(D) Piedgor agrees to indemnify and hold harmless
Lender from any and all action of any nature whatsoever taken in
respect of the Pledged Collateral, except for acts of gross
negligence on the part of Lender.
(E) The rights and remedies of Lender in this and all
other documents are cumulative, and not exclusive of each other,
and may be exercised singly or concurrently as often as Lender
deems such exercise necessary.
IN WITNESS WHEREO the Pledgor hDs executed this
Agreement under seal this ~ day of ~$~ , 1995.
Syaney ~. ~aplan
Witne~/.~~'~-'/'~
WitneSs\ /B~atrice Caplan v
SCHEDULE I
25,829 shares of common stock of First Harrisburg Bancor, Inc.,
Stock Certificate No. FHU 8065, CUSIP No. 320484 10 8
Exhibit E
PROMISSORY NOTE
Dated August ~ , 1995
Camp Hill, PA -
For value received and intending to be legally bound,
JAMES J. TOULOUMES, JR. and FROSO I. TOULOUMES, his wife,
CONSTANTINE G. J. TOULOUMES, and JAMES J. TOULOUMES, III, adult
individuals, jointly and severally, of 328 West Old York Road,
Mt. Holly Springs, Pennsylvania 17372, (hereinafter collectively
called "Maker") promise to pay to the order of cOMMERCE
BANK/H~ARRISBURG, N.A., a national banking association
(hereinafter called "Payee"), at P. O. Box 8599, 100 Senate
Avenue, Camp Hill, PA 17001-9966 or such other place as Payee may
designate in writing, the principal sum of One Million Four
Hundred Thousand ($1,400,000) Dollars lawful money of the United
States of i~merica together with interest on the outstanding
principal balance hereof as set forth below.
The Payee has approved a mortgage, loan totaling One
Million Four Hundred Thousand ($1,400,000) Dollars (the "Loan")
to the Maker. The loan is evidenced by this Note which is
executed and delivered pursuant to the terms of a commitment
letter of the Payee to the Maker dated July 26, 1995 as amended
August 3, 1995, the terms and conditions of which are
incorporated herein by reference. This Note is secured, inter
alia, by a Mortgage and Security Agreement of even date herewith
from the Maker as Mortgagor to the Payee as Mortgagee of certain
property described therein situate in East Pennsboro Township,
Cumberland County, Pennsylvania, known and numbered as 451 N.
21st Street, Camp Hill, Pennsylvania.
This Promissory Note shall be payable as follows:
Interest only at the Applicable Rate of Interest as hereinafter
defined on the outstanding principal balance of the Note shall be
made by Maker to Payee monthly on the ~ day of September, 1995
and on the-- ~day of each month thereafter until
December ~ ~,~ 1995 On December ~ ~ ~
· . 1995 and on the ~ay
of each month thereafter Maker shall pay consecutive monthly
installments (each a "Scheduled Monthly Installment") which shall
be in the initial amount of Sixteen Thousand Three Hundred
Fifteen Dollars and Thirty-five Cents ($16,315.35) each (based on
an initial interest rate of eleven and one-fourth (11-1/4%)
percent per annum and a one hundred eighty (180) month
amortization schedule)· Each scheduled monthly payment shall be
applied first to interest at the Applicable Rate of Interest
hereinafter defined and then to the reduction of the principal
balance of this Note. The amount of the Scheduled Monthly
Installment shall be increased or decreased from time to time by
the Bank in such amount as is necessary to continue to amortize
the principal of this Note over a period of one hundred eighty
~'" 1995. On November ~, 2010
(~1__80) moqths from November ,
(the "Maturity Date") a final installment shall be due and
payable which shall include all unpaid amounts of the principal
balance and interest accrued and unpaid thereon and any and all
other payments or amounts due under this Note the Agreement, or
any other Loan Document as hereinbefore defined herein.
Upon Payee giving at least ninety (90) days written
notice by regular mail to Maker, Payee shall have the absolute
right and option t~ accelerate ~he Maturity Date to the third,
sixth, ninth, or twelfth anniversary of the date of this Note
(the "Accelerated Maturity Date"), regardless of whether an Event
of Default as herein defined shall have occurred. As of the
Accelerated Maturity Date at the Payee's absolute right and
option, all unpaid amounts of the then principal balance
hereunder, all accrued but unpaid interest thereon, and all other
amounts payable under this Note shall be immediately due and
payable.
The Applicable Rate of Interest shall be that rate of
interest which is at all times equal to two (2%). percent per
annum above the Commerce Bank/Harrisburg, N.A. Prime Rate in
effect at that time and thereafter in effect from time to time at
Bank. The Applicable Rate of interest shall change on the day on
which any change in said Prime Rate shall become effective. When
the Prime Rate changes on a day other than the first day of a
calendar month, interest for the month in which such change or
changes are made shall be calculated on a per diem basis with the
various Prime Rates in effect for that month. To the extent
permitted by Pennsylvania law, interest shall be calculated by
the method known as the "Banker's Rule" using the actual days the
principal balance is outstanding hereunder divided by 360 days
and multiplied by the then applicable variable interest rate
described herein; provided, however, that to the extent such
calculation is not permitted by Pennsylvania law, interest
hereunder shall be calculated on the basis of a 365 or 366 day
year, as the case may be.
If the Payee has more than one Prime Rate in effect
simultaneously, "Prime Kate" shall mean the highest of such prime
rates then simultaneously in effect. The utilization of ~'Prime
Rate" herein is solely for the purpose of defining the rate of
interest applicable hereunder. Its utilization shall in no way
preclude or limit the Payee from lending to certain borrowers,
from time to time, at a rate of interest less than the "Prime
Rate" as defined hereunder.
If any installment of principal and/or interest under
this Note or any other sum due under any other Loan Document (as
hereinafter defined) is not paid on its due date or if the Maker
fails to pay the entire principal balance, together with interest
accrued thereon, and all other sums due under this Note or any
other Loan Document on the Maturity Date as defined herein,
interest shall be due on such overdue amount (including overdue
interest) from its due date to the date on which it is paid at
the rate of two percent (2%) per annum above the Applicable Rate
but not more than the highest rate permitted by law (the "Default
Rate"). Such interest at the Default Rate shall (in addition to
all other interest) be due on each payment date and on the date
on which the overdue amount is paid. Interest at the Default
Rate shall be due on all interest from the date on which it is
due until the date on which it is paid and any interest which is.
not paid at maturity (whether stated or accelerated) shall be
added to the principal balance of this Note on the Maturity Date.
Maker may prepay~the unpaid principal sum hereof in
whole or in part without prepayment charge or premium.
In the event any of the aforesaid payments of interest
and/or principal remain unpaid fifteen (15) days after such
payments are due, Maker shall pay a delinquency charge of five
5
percent (5%) of the amount so overdue to cover the extra expense
involved in handling delinquent payments. Provisions for such
delinquency charge shall not be construed to permit Maker to make
any payment after its due date, obligate Payee to accept any
overdue .installment, or affect Payee's rights and remedies upon
default.
Maker shall not be obligated to pay and Payee shall not
collect interest at a rate in excess of the maximum permitted by
law or the maximum that will not subject Payee to any civil or
criminal penalties. If, because of the acceleration of maturity,
the payment of interest in advance or any other reason, Maker is
required, under the provisions of any Loan Document, to pay
interest at a rate in excess of such maximum rate, the rate of
interest under such provisions shall immediately and
automatically be reduced to such maximum rate, and any payment
made in excess of such maximum rate, together with interest
thereon at the rate provided herein from the date of such
payment, shall be immediately and automatically applied to the
reduction of the unpaid principal balance of this Note as of the
date on which such excess payment was made. If the amount to be
so applied to reduction of the unpaid principal balance exceeds
the unpaid principal balance, the amount of such excess shall be
refunded by Payee to Maker.
6
This Note is secured by and entitled to all of the
benefits of (i) a Mortgage and Security Agreement (the
"Mortgage") creating a first ~ien upon the real estate and
improvements thereon situate in East Pennsboro Township,
Cumberland County, Pennsylvania, known and numbered as 451 North
21st Street, Camp Hill, Pennsylvania (the "Mortgaged Premises");
(ii) a first lien perfected security interest in the fixtures,
equipment, furniture, and furnishings now or hereafter installed
in, affixed to, placed upon, or used in connection with the
Mortgaged Premises or used or useful in connection with the
operation of the restaurant business which shall be conducted
upon the Mortgaged Premises (the "Security Agreements"); (iii) a
first lien security interest upon all insurance proceeds,
condemnation awards, rents, issues, and profits in respect of the
Mortgaged Premises, and all construction contracts, permits,
approvals, and plans, specifications, and documents affecting the
Mortgaged Premises evidenced by the security agreements contained
in the Mortgage; (iv) an Assignment of Rents and Leases affecting
the Mortgaged Premises; (v) a first lien perfected security
interest in and an irrevocable power of attorney pertaining to PA
Liquor License No. R-18645 and related permits used in connection
with the restaurant business; (vi) an Assignment of the life
insurance policies on the life of Froso I. Touloumes and
Constantine G. J. Touloume~ each D~f which shall have an
7
aggregate unencumbered death benefit of not less than $250,000 as
to each such Borrower; (vii) th~ Guaranty'~and Suretyship
Agreements (the "Guaranties") of JFK-T Group, Inc.; Sydney D.
Caplan and Beatrice Caplan, his wife; and Percy Glynn (the
"Guarantors"); (The Guaranties shall be secured by the security
interests, pledges, hypothecations, and assignments more fully
described in the Commitment Letter.) and (viiS) mortgage~ from
James J. Touloumes, Jr. and Froso I. Touloumes, his wife, as
mortgagors to the Payee as mortgagee creating subordinated liens
upon the real estate and improvements thereon situate in
Cumberland County, Pennsylvania, and known and numbered as
;a) 328 West Old York Road, Mt. Holly Springs, Pennsylvania,
(b) 5 West Pine Street, Mt. Holly Springs, Pennsylvania,
(c) 11 West Pine Street, Mt. Holly Springs, Pennsylvania,
(d) 3 West Pine Street, Mt. Holly Springs, Pennsylvania, and
(e~'l~ Hollinger Street, Mt Holly Springs, Pennsylvania. (The
Note, the Mortgages, the Assignment of Rents and Leases, the
Security Agreements, the Guaranties, the Pledges, and any other
document relating to this loan are hereinafter collectively
referred to as "Loan Documents.") Reference is made to the Loan
Documents for a description of the collateral secured and pledged
as security for this Note, the nature and extent thereof, the
rights of the holder of this Note and the Maker in respect of
such security and otherwise, and the terms upon which this Note
is issued. Ail of the terms, covenants, agreements, conditions,
warranties and provisions contained in the Loan Documents are
hereby incorporated into this Note with the same force and effect
as if they were fully set forth herein. Maker covenants and
agrees to comply with and perform all such provisions, or cause
them to be complied with and performed, strictly in accordance
with their terms.
For purposes of this Note "Collateral Security" means
any and all goods, chattels, inventory, equipment, securities,
deposits, accounts receivable, notes, documents, instruments,
money, safe deposit box contents, distributorship and franchise
agreements, and other property of Maker of whatever kind or
nature which may now or hereafter be deposited with or in the
possession or control of Payee. Maker hereby pledges the
Collateral Security as security for the payment of this Note and
agrees that, in the event of a default under this Note (whether
or not the default is an event of default as defined below),
Payee may set off any of the Collateral Security against any
amount due hereunder or apply any other Collateral Security or
other proceeds of the Collateral Security to any amount due under
this Note or under any other Loan Document.
"Default" under this Note shall mean any Event of
Default (as hereinafter defined) and any event which with the
passage of time or the giving of notice, or both, would become an
Event of Default.
Upon default (as hereinbefore defined) Payee may
collect any late charges, interest on overdue amounts at the
Default Rate and any damages or loss to Payee by reason of the
default and may set off the Collateral Security against or apply
it to any sum due under this Note or any other Loan Document.
Each of the following events shall constitute an "Event
of Default" under this Note, subject to any applicable notice and
grace period as set forth herein or therein: (a) Maker and/or
any Guarantor fails to make any payment of principal or interest
or any other sum required to be made under this Note, the
Mortgage, or any other Loan Document, and such payment is not
made within fifteen (15) days after its due date; (b) there
occurs an Event of Default as defined in the Mortgage, the
Assignment of Rents and Leases, or any other Loan Document (as
hereinbefore defined) executed by Maker and/or any Guarantor; (c)
if any Maker and/or any Guarantor becomes insolvent or makes an
assignment for the benefit of creditors; or (d) if (i) a Court
shall enter a decree or order for relief in respect of any Maker
l0
and/or any Guarantor in an involuntary case under the Federal
Bankruptcy Code or any applicable bankruptcy, insolvency or other
similar law now or hereafter in effect, or appointing a receiver,
liquidator, assignee, custodian, trustee, sequestrator (or
similar official) of any Maker and/or any Guarantor or for any of
the property of any Maker and/or any Guarantor, ordering the
winding up or liquidation of his/her/its/their affairs, and such
decree or order shall remain unstayed and in effect for a period
of sixty (60) days; or (ii) any Maker and/or any Guarantor shall
commence an action in bankruptcy, insolvency, or under any other
similar law now or hereinafter in effect, or shall consent to the
entry of an order for relief in an involuntary case under any
such law, or shall consent to the appointment of or taking
possession by a receiver, liquidator, assignee, trustee,
custodian, sequestrator (or similar official) of any Maker 'and/or
Guarantor or for any part of his/her/its/their property; (e)
failure by the Maker and/or any Guarantor to observe or perform
any covenant, agreement, condition or term of this Note, the
Mortgage, the Assignment of Rents and Leases, or any Loan
Document executed by Maker and/or any Guarantor and delivered to
Payee in connection with this Note which remains uncured fifteen
(15) days after written notice thereof by Payee provided that if
such failure cannot be reasonably cured within such fifteen (15)
day period as aforesaid and if Maker and/or any Guarantor has
diligently attempted to cure the same and thereafter continues
diligently to cure the same, then the cure period provided for
herein may be extended up to a date set by Payee (or breach by
Maker and/or any Guarantor of any other obligation to the Payee
subject to any applicable notice and/or grace period); or (f) any
representation or warranty in any financial or other statements,
schedule, certificate or other document of any Maker and/or any
Guarantor delivered to Payee by or on behalf of any Maker and/or
any Guarantor shall prove to be false, misleading, or incomplete
in any material respect; or (g) a material adverse change occurs
in the financial condition of any Maker and/or any Guarantor; or
(h) Maker assigns or otherwise transfers or attempts to assign or
transfer any interest in the Mortgaged Premises (except as
provided in the Mortgage); or (i) Maker defaults under the terms
of a certain $400,000 Promissory Note of even date herewith
executed Dy Maker and delivered to Nicholas A. Rillo and Joseph
A. Rillo, Jr., partners trading as Rillo's of Carlisle.
At any time after occurrence of an Event of Default,
Payee may, at Payee's option and without notice or demand, do any
one or more of the following:
(a) without declaring the unpaid principal balance to
be due, collect all installments of principal and/or
interest (at the then applicable rate provided above to the
date on which a default occurs and, thereafter, at the
Default Rate) and all other sums due under this Note or any
other Loan Document from time to time, by any action
provided in this Note or any other Loan Document or provided
at law or in equity;
(b) declare the entire unpaid principal balance of
this Note, together with interest accrued thereon (at the
then applicable rate provided above to the date on which a
default occurs and, thereafter, at the Default Rate) and all
other sums due from Maker under this Note or any other Loan
Document to be due and payable immediately; and/or
(c) exercise any other right or remedy as may be
provided in this Note or any other Loan Document or provided
at law or in equity.
Payment of all or any part of the Indebtedness (as
defined below) may be recovered at any time by any one or more of
the foregoing remedies.
Whether or not the entire unpaid principal balance is
declared to be due, the interest rate on the unpaid principal
balance shall be the Default Rate from the date on which a
default occurs until the date on which all defaults are cured or
the entire unpaid principal balance and all other sums due under
this Note or any other Loan Document (collectively, the
"Indebtedness") are actually received by Payee. Upon the entry
of any judgment after default, interest shall continue to accrue
at the Default Rate on the judgment amount from the date of
judgment until actual receipt of the entire Indebtedness by
Payee, including any period after a Sheriff's Sale of the
Mortgaged Property.
In any action under this Note or any other Loan
Document, Payee may recover all costs of suit and other expenses
in connection with the action, including the cost of any title
search and reasonable attorneys fees, paid or incurred by Payee.
The rights and remedies provided to Payee in this Note
and the other Loan Documents, including all warrants of attorney,
(a) are not exclusive and are in addition to any other rights and
remedies Payee may have at law or in equity, (b) shall be
cumulative and concurrent, (c) may be pursued singly,
successively or together against Maker, any of the Mortgaged
Property, any of the Collateral Security and/or any other
security at the sole discretion of Payee, and (d) may be
exercised as often as occasion therefor shall arise. The failure
to exercise or delay in exercising any such right or remedy shall
not be construed as a waiver or release thereof.
Maker hereby waives and releases Payee and its
attorneys from all errors, defects and imperfections (of a
procedural nature) in any proceeding instituted or maintained by
Payee under this Note or any other Loan Document. Maker hereby,
to the extent not prohibited by law, waives all benefit of any
and all present and future statutes of limitations and moratorium
laws and any and all present and future laws which (a) exempt all
or any part of the Mortgaged Property, the Collateral Security or
any other real or personal property or any part of the proceeds
of any sale of any such property from attachment, levy,
foreclosure or sale under execution, (b) provide for any stay of
execution, marshaling of assets, exemption from civil process,
redemption, extension of time for payment, or valuation or
appraisement of all or any part of the Mortgaged Property, the
Collateral Security or any other real or personal property, or
(c) conflict with any provision of this Note or any other Loan
Document. Maker agrees that the Mortgaged Property, the
Collateral Security and any other real or personal property may
be sold to satisfy any judgment entered under this Note or any
other Loan Document in whole or in part and in any order as may
be desired by Payee.
Maker and all endorsers, sureties and guarantors,
jointly and severally: (a) waive presentment for payment,
demand, notice of demand, notice of nonpayment or dishonor,
protest and notice of protest of this Note, and all other notices
(not expressly provided for in this Note) in connection with the
delivery, acceptance, performance, default, or enforcement of the
payment of this Note; (b) agree that the liability of each of
them shall be unconditional without regard to the liability of
any other party and shall not be affected in any manner by any
indulgence, extension of time, renewal, waiver or modification
granted or consented to by Payee at any time; (c) consent to any
and all indulgences, extensions of time, renewals, waivers or
modifications granted or consented to by Payee at any time; (d)
consent to the release of all or any part of or interest in the
Mortgaged Property or the Collateral Security or any other
collateral described in any Loan Document, with or without
substitution; and (e) agree that additional makers, endorsers,
guarantors or sureties may become parties to this Note or any
other Loan Document without notice to them or affecting their
liability under this Note or any other Loan Document.
16
Payee shall not be deemed, by any act of omission or
commission, to have waived any of its rights or remedies
hereunder unless such waiver is in writing and signed by Payee.
Such a written waiver signed by Payee shall waive Payee's rights
and remedies only to the extent specifically stated in such
written waiver. A waiver as to one or more particular events or
defaults shall not be construed as continuing or as a bar to or
waiver of any right or remedy as to another or subsequent event
or default.
Maker shall pay the cost of any revenue, tax or other
stamps now or hereafter required by law to be affixed to this
Note. Maker shall pay any and all taxes imposed upon Payee by
reason of this Note or the ownership or possession of this Note,
including personal property taxes, but excluding any franchise or
capital stock taxes, bank shares taxes, or income taxes imposed
by reason of interest received by Payee under this Note, and
shall reimburse Payee for the amount any such taxes paid by
Payee. If Maker fails or refuses or is not legally permitted to
make such payment or reimbursement, Payee, may, at its option,
declare the Indebtedness to be immediately due and payable,
whereupon Maker shall immediately pay such principal and other
sums to Payee.
17
If Maker shall, without in each instance the prior
written consent of Payee, sell, transfer, convey, mortgage,
encumber, lease or otherwise alienate all of any part of the
Mortgaged Property or any interest therein (except for leases
permitted by the Mortgage or Assignment of Leases, or sale of
lots in the ordinary course of Maker's business if payment of the
appropriate release price as provided in the Mortgage is made to
Payee), whether voluntarily or by operation of law, then Payee
may, at its sole option, declare the Indebtedness to be
immediately due and payable, whereupon all such principal and
other sums shall be immediately due and payable.
Payee shall not be construed for any purpose to be a
partner, joint venturer or associate of Maker or of any lessee,
operator, concessionaire or licensee of Maker or of any of the
Mortgaged Property by reason of this Note or any of the Loan
Documents or of any action by Payee pursuant to any provision of
this Note or any other Loan Document.
Time is of the essence of each and every provision of
this Note.
The words "Payee" and "Maker" shall include the
respective heirs, distributees, personal representatives,
successors and assigns of Payee and Maker, respectively. The
provisions of this Note shall bind and inure to the benefit of
Payee and Maker and their respective heirs, distributees,
personal representatives, successors and assigns provided that
the provisions of this paragraph are subject to all the other
provisions of this Note and the other Loan Documents, including
the above due-on-sale clause.
If there is more than one Maker, the liability of each
shall be joint and several.
As to all pronouns and other terms in this Note, the
singular shall include the plural and vice versa and any gender
shall include the other two genders, as the context may require.
The phrase "any of the Mortgaged Property" shall mean
"all or any part of any of the Mortgaged Property or any interest
therein." The phrase "any of the Collateral Security" shall mean
"all or any part of the Collateral Security or any interest
therein."
This Note may be modified, amended, discharged or
waived only by an agreement in writing signed by the party
19
against whom enforcement of any such modification, amendment,
discharge or waiver is sought.
This Note shall be governed by and construed according
to the laws of the Commonwealth of Pennsylvania.
Ail notices, requests, demands and other communications
given pursuant to any provision of this Note shall be given in
writing by U.S. certified or registered mail with return receipt
requested and postage prepaid, or by any 24-hour courier service
with proof of delivery, addressed to the party for which it is
intended at the address of that party first stated above or such
other address of which that party shall have given notice in the
manner provided herein. Any such mail notice shall be deemed to
have been given when the notice is deposited in the mail. Any
such courier notice shall be deemed to have been given on the
following business day.
UPON DEFAULT MAKER HEREBY IRREVOCABLY AUTHORIZES AND
EMPOWERS ANY ATTORNEY OR ATTORNEYS OR THE PROTHONOTARY OR CLERK
OF ANY COURT OF RECORD IN THE COMMONWEALTH OF PENNSYLVANIA, OR IN
ANY OTHER JURISDICTION WHICH PERMITS THE ENTRY OF JUDGMENT BY
CONFESSION, TO APPEAR FOR ANY OR ALL Fu%KER IN SUCH COURT IN AN
APPROPRIATE ACTION THERE BROUGHT OR TO BE BROUGHT AGAINST MilKER
20
AT THE SUIT OF PAYEE ON THIS NOTE, WITH OR WITHOUT COMPLAINT OR
DECI2LRATION FILED, AS OF ANY TERM OR TIME, ~tND THEREIN TO CONFESS
OR ENTER JUDGMENT AGAINST MAKER FOR ALL SUMS DUE BY M3tKER TO
PAYEE UNDER THIS NOTE ~/qD THE OTHER LOAN DOCUMENTS (WITH OR
WITHOUT ACCELERATION OF MATURITY), INCLUDING ALL COSTS ~ND
REASONABLE ATTORNEYS' FEES. FOR SO DOING THIS NOTE OR A COPY
HEREOF VERIFIED BY AFFIDAVIT SHALL BE A SUFFICIENT WARRANT. THE
AUTHORITY TO CONFESS JUDGMENT GRANTED HEREIN SHALL NOT BE
EXHAUSTED BY ANY EXERCISE THEREOF BUT MAY BE EXERCISED FROM TIME
TO TIME AND AT ANY TIME AS OF ANY TERM AND FOR ANY A/4OUNT
AUTHORIZED HEREIN. Fu%KER EXPRESSLY AUTHORIZES THE ENTRY OF
REPEATED JUDGMENTS UNDER THIS PA/{AGRAPH NOTWITHSTANDING ANY PRIOR
ENTRY OF JUDGMENT IN THE S~/ME OR ANY OTHER COURT FOR THE SAME
OBLIGATION OR ANY PART THEREOF.
M3~KER ACKNOWLEDGES THAT THEY HAVE BEEN REPRESENTED BY
COUNSEL IN CONNECTION WITH THE EXECUTION AND DELIVERY OF THIS
NOTE AND THAT IT UNDERSTANDS THIS PROVISION FOR CONFESSION OF
JUDGMENT, AND MAKER WAIVES ANY RIGHT TO NOTICE OR A HEARING WHICH
IT MIGHT OTHERWISE HAVE BEFORE ENTRY OF JUDGMENT.
I~ WITNESS WHEREOF, Maker has executed this Note under
seal the c~~ day of August, 1995.
Witness ~ames J. ~6uloumes, Jr.
Witness O~ F~oso I. Touloumes
W~~ Constantine G. J. Touloumes
~aames ~/Touloumes, III
EXPLANATION OF RIGHTS - CONFESSION OF JUD~NT
1. On ~he date hereof, I, S~DNE~ D. CA,LAN and BEAT~ICE CAPLAN,
his wife, a~ult in~vi~u~s, have ~ed a Gu~ in favo= of C~
~d ~e ~rfo~ of ceftin obligations as ~fin~ ~e~in. ~e~gr~ate
D~t in~u~s lo~ procee~ issu~ or to ~ issu~ ~ C~rce
benefit of J~s J. Toulo,,~s, Jr. ~d Froso I. To~o~s, ~s wife,
Cons=~ine G. J. To~o,,~s, and J~s J. To~o,--s, III (collec=ively
"Borrower"). We ~si~ =o induce Co~=ce to close ~e lo~ to Bo~ower.
~ders=~d ~e~ly and spe~fically ~a~ by sing ~e Guar~ty, w~
contains a confession of jud~nt clause:
(a) We au=horize Coerce to enter a Ju~nt agains= us ~d in
its favor whi~ will give Co~rce a li~ upon ~y real estate whi~ we
~y o~ inclu~ng our
(b) We gi~ ~ ~e right to ~y no~ce or o~or=~i=y to be
heard prior ~o ~e en~ of ~s Jud~nC on ~e ~cor~ of ~e court;
(c) We agree ~a= Co~=ce c~ enter ~e ~u~nt after ~efault
as ~fined in ~he Guar~ty or in ~y of ~e Lo~ Do~n~s as ~a~ te~
i~ ~fin~ ~erein;
(d) We s~ec= all o~ property, re~, personal ~d ~xed,
~e~tion ~d sheriff's s~e, pursuit to ~is ~n=, prior to proof
of non-paint or o~er ~fa~ on our pa~;
(e) We will ~ ~le to ~len~ ~s ~nt, should Coerce
enter it ~cep= by proofing to o~n or to s~ike ~e Juan=;
su~ a procee~ng will ~sult in atto~e~s fees ~d costs whi~ we will
have ~o pay;
(f) We give ~ ~e righ= to r~ C~=ce to p~sent a swo~
do--n= se==ing for~ in non-concluso~ =e~ ~e basis for i=s cla~
befo~ obtaining a writ of g~is~nt or a wri= of
(g) We a~ee ~a~ ~e writ of g~s~t or wri=
~y ~ issu~ wi~ou= ~e necessity of a review ~ ~ app~val
offi~al ~s=ed wi~ ~isite ~scre~on; ~d
(h) We qi~ ~ ~e right or oppor~ for a
pos=-seiz~ he~ing a= w~ Co~r~ ~s= ~ns=rate
prob~le v~i~=y of its ~a~.
2. We ~ow ~d ~rs~d ~a~ it is ~is inst~nt
confession of ju~n~ ~ause in ~e Gu~Cy w~ gi~s Co~=ce ~e rights
~d benefits en,,--Tat~ in ~ara~hs (a) ~ough (h) of p~a~aph 1
~ove. IF ~ ~ ~T SI~ ~T~ ~S~ ~ ~ ~ ~I~ CO~A~S
CO~-mflSI~ OF ~ C~U~, ~ ~E~T~ ~aT ~ WO~ ~ 'r~ FOLLOW~:
(a) ~e righ= to have no~ ~d ~ ~ort~ty ~o ~ he~ prio~to
(b) ~e righ~ to ha~ the ~ of proving default ~s~ ~on C~rce befo~
my pro~rty ~ be ~osed to e~on; (c) ~e right ~o avoid ~e ad~tional
e~nse of atto~eys' fees ~d =os~ inci~n~ to o~n~g ~ s~iking off
juan=; (d) ~e right to r~ Co~=ce ~o p~sen~ a swo~ do~nt
setting forth in non-conclusor¥ terms the basis of its claim before Com-~rce
obtains a writ of garnishment or a writ of atrovent; (d) the right to
condition the issuance of a writ of garnishment or a writ of attachment on
review and an approval by an offi~i~ vested with the requisite discretion;
and (f) the opportUnity for or right to a prompt post-seizure hearing at which
Co-~-~Tce must demonstrate at least the probable validity of its
3. Fully and con~letely understanding these rights which we
have prior to si~ning the Guarant~ and this inst~--nt and clearly aware that
these rights will be given up, waived, relinquished and abandoned if we sign
the Guaranty and this instz-~nt, we nevertheless freely and voluntarily
choose to sign the Guaranty and this ins=A-~-~nt, our intentions being to give
up, waive, relinquish and abandon m~ known rights (as described in parag~a~
above} , and sub,eot ourselves to the circumstances describe~ in paragraph 1
above o
4. We acknowledge that {a) the Guaranty and ~his instrun~nt
have been executed in a commercial transaction for business purposes; (b) that
at all times material hereto we were represented by counsel in connection with
the execution of the Loan Doc--~nts, and particularly the Guara/%ty and this
instrument; (c) that we r~viewed the Guaranty and this instr%u~ent with our
aUtorney before signing them; and {d} that our annual incom~ exceeds
$10,000.00.
of ~ 1995.
WE ~AVE READ T~IS ENTI~E FORM. WE ~'u~LX UNDERSTAND ITS CONTENTS
A~D INTEND TO BE LEGALLX BOUND ~EBX.
Witness ~ ~ BeatriCe Caplan
SS.
On ~is, ~. ~ ~ of ~5~, 1995, befo~
~lic, ~e undersi~ officer, ~rsonally ~eared 3~ey D. Capl~
Beatri=e Capl~, ~is wife, ~own to ~ (or sa~sfactoril~ proven)
persons whose n~ are s~s~ed to ~e wi~in inst~n~ ~ a~nowle~ed
that they exerted ~e s~ for ~e pu~oses ~erein
~ WI~SS ~OF, I here~to set ~ h~d ~d official seal
~y ~d year aforesaid.
41462 i
Exhibit F
CREDI-, :~IE CHANGE IN TERMS A. · .~EMENT
..... - . fieJece~ln~s~dedafeaaref~Lend~susoo~8flddofl~,~lthespp~h~rof ~d~umenlloan~paf~uar oafl~,em. I
Borrower: ~e~IN: 2~i7~0811) Lender: CommerceB~rrl~urg, NallonalAs~lationM~n~lc~mmerclalCost Center
C~p ~11, PA 17011 P.O. Box
10o ~nala Avenue
Date of Agreement: June 2~ 1998
CREDIT
LIMIT:
Da~dpllon of Exlsl~g Indeb~dne~. a F~ed Ra~, D~osable ~eHnd Line of Credit Loan Io a ~rpo~allofl wilh ~ Credil Limit o~15,~.~
10~ .............. a ~m~G= ~nk ~vl~ounl ~4101~ ~ha~t~,~.and a Hypol~alio~and C~lera P~e by
~rlptlon ol Chan~ la~; ~~~~;-A~pe[s~l Gu~refi~ by Sydney D. Capl~n
la~odactloa..~s CASH ~RVE {"~r~menl~ gover~ yo~ a~ ol credll ({he '~edil ~1~' ~ Ihe "~edil Mne ~ounl") ~s~d I~o~h
~1 ~s~on. You a~ to the lo.wing lerms ~d condlllons:
Proml~ Io Pay. You prom~ Io pay ~m~ Bankl~r~urg, Naao~l ~s~laflon, ~ ~, on de.nd Ihe total ol aa cr~l advan~
FIN~CE CrinGES, ~ ~ al c~ a~ ~ f~ w~h you are responsible undm I~ ~ee~nl ~ und~ Ihe "~s~nmenl ~ Deposit
~nF w~h ~ yo~ ~e~l U~. You ~ ~y y~ ~t Li~ a~dl~ Io the pay~nl I~ms eel Iodh baow. If Ihere I~ more Ih~ one
~rr~, e~ Is ~lnl~ and ~ve~ limb on Ibis A~eemenl. Th~ ~s we can require ~y one ol you lo pay aa ~ounls due ~der this
A~e~enl, ~cludlng cr~ll ~v~ces m~e Io ~y of you. E~ ~rrower authorize any olher Borrower, ~ his or her N~ature alone, lo
~el ~e Credit ~ne, lo ~e~esl ~d r~elve credit ~v~es, ~d Io do aa other Ihlaga nece=~ to car~ out the terms of Ibis Agreement.
We ~ ~el~ any of you from r~nNb~ty unde~ this Agreement, end Ihe olhers will rem~n reachable.
Minimum P~menl. Your ~u~ Pay~nl" wa ~ monlb~ payments ol $10.~ or 2.~0% ol I~ ~lstandlng balance on your peri.lc billing
~al~enl, ~¢heve~ Is greal~. Yo~ 'Mi~mum Pay~a~ wa be your R~ular Payment plus a~ amounls pasl due. any volunla~ ~e~l ale and
~baly i~ura~e p~lu~, and a~ oth~ c~. You e~ Io ~y not ~ss than Ihe Mi~mum Paymenl on ~ bel~e Ihe due date in.led
yo~ p~ blang s~nl. In any e~nl, il your Creel B~ ba~ la~ below $~0.~, you agr~ Io pay yo~ bala~e in lua.
Appll=atlon el Payments. Un~ el~ agr~d ~ r~ed by appa~b~ ~w, paymen~ end other ~[edils will be appl~d in I~ t~owing ~de~:
(a) FINANCE C~RGE~; (b) any v~un~ ~edll ale and d~lly Ins~ance premiums; (~) unpaid p~n~pal; and (d) ~ charges ann olhe~
T~m. T~ t~m ol yo~ ~edll U~ ~ ~ln as ~ ~ dale ol I~ Agr~menl ("Ope~ng Dale") and wal conllnue unlll demand is made under this
~nl ~ un~ ~ ~edll Une ~ ~1~ f~ any r~on. Al Ihat ~, ~ any lime thereeft~, s~ outslsndt~ pri~ipal, a~rued inlarest, any c~edil
ale and ~abaly i~ura~e premium, and any o1~ oulslandl~ charg~ ~11 be payable on demand.
R~elpI of Paymenle. g pay~nl Is nol r~elved by Ihe due ~te (~th ot Ihe monlh) payment, will be aulomafl~y crediled Io the Cash Resale L~n
~om t~ C~I~ ~ount.
C~edll Limit. T~ ~r~nl co~s a raving line ~ ~edil for Twenty Fi~ Thousand & ~11~ O~rs ($25,~.~), wh~h win ~ your ~redit Limil"
u~ Ihls ~nt. Y~ ~y b~ow a~nst I~ ~1 LI~, repay any p~llon of Ihe amount borrowed, and r~borrow up Io the a~unl ~ Ihe
~edll LI~. Y~ Qedil Ltmil ~ ~ ~mum amou~ you may have outslandi~ al any one tim. You agree not Io atle~l, requesl, ~ ob~in a ~edll
adva~ I~1 ~ ~ke your ~e~t Line ~ounl bala~e ~c~ yo~ Credil Ll~t. Your Cmdil Li~t wi, not be i~d should you ovmdraw your
~t ~ ~nL II you ad your Qe~l Limit, you agr~ to ~epay im~diat~y the amou~ by wh~h yo~ Cred[I Line Accounl exceeds your
~11 U~I, even II we ~ve nol yet bl~d you. Any amount ~eal~ Ihen Ihe Credll Limil wal be secured by Ihe Ass~nment ol Oeposil ~ount
c~lng yo~ ~o~ly.
Cb~I lo Y~r Credll U~. We may ~rge yo~ ~edll Line lo pay oth~ fees and cos~ Ihal you me obagaled Io pay un~ ~is Agr~nl or
u~ a~ O~ d~u~nl r~d to yo~ ~edll Ll~. ~y amount so c~r~d Io your Credit Line w~ be · credil advance a~ wig de~se the tunds
a~, ~ any, un~ I~ ~edil LI~. H~ever, we ~ve ~ ~alion Io ~o~de any ol Ihe credil adva~s referred Io in Ihts paragraph.
Efl~llve Dl~ur~ment Date. T~ w~ ~ll~ave ~sbu~menl Da~" as used in Ih~ Agree~nl ~an · dale, afl~ Ihe ~enl~ Dale, when the
~nl b ~p~d by ~ In t~ ~mmonw~llh of Pen~ylvanla Ioaowing Ihe ~rl~tion of the ~signmenl ol Deposil Account and I~ meellng
al ~ om olher con~ns. You agr~ and un~sland Ihal you may nol r~ve any ~edil adva~e und~ your Credit Li~ unl~ after the Effective
DP~ment Dele of I~
(a) W~II~ a c~ ~ yo~ deC.led c~ki~ a~ounl wllh us Iff e~ess ol the availab~ c~l~led balan~ in the account.
II throe ~ m~e Ihan ~ person aulh~zed lo ~e Ihls Credil Line ~coanl, you agree nol Io give us con~lcli~ ins~uclions, such as one ~ you
Tr~tlon Requirements. The foaowl~ ba~scaon a~laltons wa apply Io a~s~ng your Creel Line by wrltl~ a check In ex.ss ol yo~
a~ounl ba~.
Minimum Advance Amount. ~ ~mum amount ol any ~edll adva~e Ihal can be made on your Credit Ll~ Is as I~lows:
Future Credit Line Se~lces. Y~ app~llon I~ Ihb ~edil ~ne ~ se~e5 as a requesl Io r~elve any ~w ser~es (~uch as access de.ces}
w~h ~y be aval~b~ al so~ ful~e a~ as o~ ol o~ s~es in con--lion with ~is Credil LI~. You undersland thai I~s requesl ~ v~unla~y and
I~t you may ~el~ any o[ Ihese ~ ~s al Ihe time I~y am ~lmed. You furth~ un~s~nd I~t I~ ter~ end condillons of Ihls Ag~nl,
I~el~ wllh any sp~iflG ler~ cov~ ~e new se~, will govern any Eansaclions made p~suanl Io any ~ Ih~e new set.cas.
~curlly Requ~ementa. F~ t~ ~edil L~e, wa require s~ily in Ihe f~m ol a Ass~nment ol ~posil ~counl on Com~me Ba~ ~ngs ~ounl
~410t~7 and a Hypoth~alion and ~al ~ by ~d~y D. ~p~. You agree lo Ihe le~ms of the ~gn~nl ol Deposit A~ounl, s~ ot the
t~ and c~ditlo~ of which am i~p~aled by reference in Ihis Agree~nL
06-26-1998 CREDIT LINE CHANGE IN TERMS AGREEMENT Page 2
Loan No 510021454 (Continued)
Right of Setoff. You grant to us a conbactual security intsrest in, and hereby assign, convoy, deliver, pledge, end transter lo us all right, title and
Intsrest in and Io. your accounts wilh us (whalhar checking, savings, er some ofhm account), including without limitation all accounts held jointly wtih
someone else and all accounts you may open in the fulure, excluding however all IRA, Keogh, and trust occeunis. You aulho~ize us, to Iha extent
permiltsd by applicable tsw, lo chergo er soleil all sums owing on this Agreement agalnsl any and all such accounts.
Periodic Slelemenle. ft'you have a balance owing on your Credit Line Account or hevo any account activity, we will send you a periodic stetement. It
will show. among other things, credil advances, FINANCE CHARGES, other charges, payments made, giber credits, your "Previous Balance," and your
'New Selacce." Your stetemenl also will identify the Minimum Paymenl you must make for thai billing padod and the date it is due.
When FINANCE CHARGES Begin to Accrue. Periodic FINANCE CHARGES for cradil advances under your Credit Line will begin to accrue on the
dale credil advances are posted Io your Credil Uce. There is no "Ires ride pedod" which would allow you Io avoid e FINANCE CHARGE on your
credit Line credit advances.
Method Used to Delermtho Ihs Balance on Which the FINANCE CHARGE Will Do Computed. A dally FINANCE CHARGE will be imposed on all
crebil advances made under you~ credtl Line Imposed ~'om the date of saoh credit advance based on the "everoge daily balance" melhod. To got the
everoge dally balance we lake the beginning balance o! your Credil Line Account each day, add any new advances and subtract any payments or
credits and any unpaid FINANCE CHARGES. This gives us a daily balance. Then, we add up all Ihs daily balances Ior the billing cycle and divide the
Iotsl by the number of days in Iha billing cycle. This gives us the "average dally balance."
Method of Delermththg Ihs Amounl o! FINANCE CHARGE. Any FINANCE CHARGE is determined by applying the "Periodic Rate' Io the balance
described above. Then we multiply by the number of days In Ihs billing cycle. This is your FINANCE CHARGE calculated by opplying a Periodic Rate.
Periodic Rate and Corresponding ANNUN.. PERCENTAGE RATE. The Periodic Rate and the corresponding ANNUAL PERCENTAGE RATE on
your Credit Line are based upon an ANNUAL PERCENTAGE RATE on ranges of balances as shown below. To obtain Ihs periodic rate, we divide tho
Interest rets by the number of days in a year (daily). TO obtein the ANNUAL PERCENTAGE RATE we multiply the periodic rata by the number of days
in a you (daily).
Range gl Balannes Fixed Inlereot ANNUAL PERCENTAGE Dally Periodic
or Condlllone Rate RATE Rate
All Baloncee I0.000 % 10.000 % 0.02740 %
Notwlthelandlflg any' other provlalon of this Agreemenl, we will not charge Interest on any undtebursed loan proceeds.
Condglone Under Which Other Chergse May be Imposed. You agree Io pay all the other fees and charges re.tad to your Credil Line as set fodh
bal0w:
Relurned tiaras. You moy be charged StO.00 ~f you pay your Credit Line obligations with a check, draft, or other item Ihal is dishonored for any
reason, unless applicable law requires · lower charge er prohibits any charge.
Late Chergos. In addition iD our fights upon delauti, your payment will be late ii it Is not received by us within 16 days of Ihs "Payment Duo
Date" shown on your periodic ~latemant. II your payment is tste we may ohcrge you 5.000% of the payment.
Right fo Credit Advances. After the Effective Dlsborsamenl Data, we wlil honcr you~ requests for credit advances up Io your Credit Limll so long ss:
(a) you ara riel in default under Iho terms of Ihis A{¥eemanl; (b) this Agreement has not been termlnatad or suspended; and (c) your Credll Line has
not been cencetied ss prov dad above in the section of Ihla Agreamanl lltied ~l'erm."
Defanlt. We may declare you Io be in detsult II any one or more of the fditewlng events occur: (a) you fall to pay a Minimum Payment when due; (b)
an event of default occurs under the Assignmanl of Dnpccll Account; (o) the Property is Iorlhe~ accumbared in any way. volunteniy or involuntarily; rd)
you die; re) you make any false er misleading statements on your Credit Line application; (f) you violate any provision of thla Agreemenl er any other
agreement with us; (g) any garnishment, eltschment, or execution la issued against any material ascel owned by you; (h) you exceed your Credit Limit;
(I) you file for bankruplcy er other insolvency rellel, er an Invnlunlery petition under the provisions et the Federal Bankruplcy Act is filed against you; er
(J) we, in good tsith, deem oursalves insecure.
Lendcr'a Righto. II you are in default, we will send notice to you selling forth s lime period of st taasl Ihirfy (30) days within which such deteull may be
cured. During this cure period, without notice, wo may suspend your Credit Line as provided below. II suob dateull is not cured during Ihis period, we
may either termlnste er continue suspension of your credit Line Account.
(a) Suspension. g wa suspend your Credit Line, you will lose the fighl Io obtain ludher crodil advances. However, all other terms of this
Agreement will remain in elteof and bo binding upon you, including your llebilily for any fudhar unauthorized uss of any Cradil Line access
devices.
(h) Termthallon. Ii wa terminate your Credit Line, your Credit Line will be suspehdeb and the entire unpaid balance of your Credit Lice Account
will be Immadlelely due and payabts, without prior notice excepl as may be required by law. and you agree to pay Ihat amount plus all FINANCE
CHARGES and other amounts due under this Agreement.
(c) Collection Costs. Upon deteuti, we may hire er pay someone else to help collect your Credit Line Account il you do not pay. You also will
pay us that amount. This Includes, subject lo any limits under applicable law, our attorneys' fees and our legal oxpecsas whelhar or not there is a
lewsuti, including alterneys' fees and legal expenses for bankruptcy prnceed[ngs (including elfcrls Io modify or vacate any eulomalic slay cr
thjuncllon), appeals, and any anticipated post-judgment collection services.
(d~Rale Increase. In addition I~ Der olher rights on deteull, we may increase tho interest raid under this Agreement to 2.000 percentage points
over Ihs Ihen applicable ANNUAL PERCENTAGE RATE. The Interest rate will not exceed the maximum tale permitted by applicable law. If we
do not increase Ihs interesl late on default, il will continua al the fate in effect as of the date we declare a defaull.
Delay In EMorcement. We m~y delay or waive the enforcemanl of any of our rights under Ihls Agreemenl wilhoul losing Ihal right or any nther right. If
we delay er waive any of our righls, we may enforce Ihat righl at any lima In the fulure wilhout advance notice. For example, nor terminating your
accounl fo~ non-paymenl will not be · waiver of our right Io terminate your account in Ihs future il you have ncl paid.
Tormlnagon by You. ft you tsrmlnate this Agreement, you must notify us. Despite terminalion, your obligations under this Agreement will remain in full
force and eitecl until you have paid us all amounla due under this Agreement.
Prepayment. You may prepay all or any amount owing under this Credit Line at any time without penally, except we will be enlilled to receive all
&ccrued FINANCE CHARGES, and olher ~herges, f any. Paymenls in excess of your Minimum Payment will not relieve you of your obligation Io
continue Io make your Minimum Poymecl.~ ' lead, they will reduce Ihs principal balance owed o '~ Credit Line. II you mark a check, money order,
o~ other instrumenl sent in payment with ~ - Full" er with similar tsnguage, we may accept Ih : ~ ~nl, and you will remain obligaled to pay any
06-26-1998 CREDIT LINE CHANGE IN TERMS AGREEMENT ~. Page 3
Loan No 510021454 (Continued)
further amounl owed lo us.
Nollees. All notices will be sent Io your address es shown in your Credil Line application. Notices will be mailed Io you al a different address it you
give us wrillen notice ot · ditfereot ad.ess. YOU agree Io advise us promptly if you change your mailing address.
Credll Infm'malloo and Related Mallets. You eulhorize us to release infermalion lo others (such es credit bureaus, merchenle, and other financial
inslitulions) about Ihs status end histo~- ot your Credil Line Account. You agree that, upon our request, you will provide us with a current finenciol
statement, s new credit application, or both, on Iorms provided by us. You also agree we may obtain credll reporls on you at any lime, al our sole
option and expense, for any reason, Including bul not limited to determining whether there has been an adverse~changa in your financial concjilion.
Based upon a melertal adverse change in your financial condition (such as termination of employmenl or loss ol income), we may suspend your Credit
Line. We may require · new apprelsel ot the Properly which secures your Credil Line al any lime, including an internal inspection, el our sole option
end expense.
Transfer or Assignment. Without prior notice or approval from you, we reserve the dghl Io sell or transfer yo~Jr Credil Line Accounl to another lender,
entity, or person, end to assign our rights under Ihs Assignmenl ot Deposit Account. Your righls under Ihls Agreement belong 1o you only and may not
be Iransterred o( assigned. Your obligellons, however, are binding on your heirs and legal representatives.
Tax Coneeqnencee. You understand Ihal eellher Commerce Bank/Harrisburg, National Assuctallon, nor any ot its employees or agents, makes any
representation er werrenly whatsoever concerning the lax consequeuces ot your establishing and using your Credit Line, including Ihs deducllbllily ot
Ioteresl, and Ihat nellher Commies BanklHerdsburg, National Association nor its employees or agents will be liable in the event interesl on your C~:edil
Line is not deductible. You should consoll your own lax advisor for guidance on this subjecl.
Goverotng Law. This Agreement will be governed by federal law end by the laws o! Ihs Commonwealth of Pennsylvania. The Credl! Line
which le Ihs anbject of Ihle Agreement hee been applied for, considered, approved, and made In the Commonwealth of Pennsylvania.
Interprelallon. The names given Io paragraphs or sections in Ihls Agreement are for convenience purposes only. They are not to be used Io tnlerprel
or dellna the provisions ot Ihis Agreement. You agree that this Agresmenl, together with Ihs Assignmeot ot Deposit Account, is Ihs besl evidence ot
your agreements with us. It a court finds Ihel any provision of Ihis Agreement is not valid or should not be enforced, Ihal tsot by iisalt will hot mean Ihal
the reel ot Ihis Agreement will not be valid or enforced. Therelors, a court may enforce Ihs rest o! Ihs provisions ot lhis Agreerneot even It e provision
of this Agreement rney be Iound Io be invalid or unanforceabla. II we go Io court lot any reason, we can use a copy, filmed or electronic, ot any
periodic sletamenl, this Agreemeot, Ihs Assignment ot Deposit Accounl, or any other document to prove what you owe us or Ihel e hansacfion has
taken place. The copy, mi~ofilm, mlorollche, or optical image will have the same vsildily es Ihs original. You agree Ihel, except Io Ihs exioot you can
show there is a billing error, your most current periodic billing slelemenl is Ihs best evidence ot your obligation Io pay.
Continuing Velldily. Excapl as expressly ohenged by Ihis Agreement, the tarms of the original obligelion or obligations, including all agreements
evidenced o~ seourtng Ihs obligation(s), remain unchanged end In tull fo~ca end sitoct. Consent by Lender Io Ihls Agreemeot Claes nol waive Lender's
right to slrlot performance of Ihs obligation(s) ea ehaogsd, nor obligate Lender to make any future change in terms. Nothing in this Agreement will
constitute e safielocfion o! the obligation(s). II is the Intanllee oi Lender Io retain es liable parties all makers end endorsers of the orlg~nal obfigefion(s),
Including accommodelion pedies, unless e party is expressly released by Lender in wriling. Any maker or endorser, including accommodation makers,
will not be released by virtue of this AgreemanL II any person who signed the original obligation does not sign Ihis Agreemeot below Ihen all persons
signing below ackno~vledge thai Ihis Agreement is given conditionally, based on the representation to Lender hat the non-signing party consents to the
changes and provisions o/this Agreement or otherwise will not be released by il. This waiver applies not only to any inillet extension, modification or
release, bul also to ell such subsequent actions.
Acknowledgment end Amerldments. You underslend end agree Io Ihs terms and condllions In this Agreement. YOU acknowledge thai, subject Io
applicable laws, we have the rlghl to change the lerms and conditions ot Ihs Credit Line program. You also understand end agree Ihel you may be
subject to other egreemeots wfih us regarding transfer Instruments or access devices which may access your Credit Line. Any person stoning below
may request a modifioallon to Ihis Agreement, and, il granled, the modillcafion will be binding upon all signers. By sigolr~ Ihis Agreemenl, you
acknowledge thai you have read Ihic Agreemenl.
This Agreemenl is deled June 26, 199~.
THIS AGREEMENT HAS BEEN SIGNED AND SEALED BY THE UNDERSIGNED.
BORROWER:
J F K-T I~roup, Inc.
~;t'oee Toulourn'c;e, ........ Vice Pl'esldenl
~ or Aeelst~l ~cret~ ( Corporate Seal )
06-26-1998 CREDIT LINE CHANGE IN TERMS AGREEMENT Page 4
Loan No 510021454 (Continued)
BILLING ERROR RIGHTS
YOUR BILLING RIGHTS
KEEP THIS NOTICE FOR FUTURE USE
This notice conlalos Impodanl inibrmation about your rights and our responsibilities under Iha Fair Credit Rilllng Act.
Notify us in caae of errors or questions about your bill.
It you think your bill is wrong, or If you need more information about a b'ansection on your bill, write us on a separate shoal al P.O. Box 8599, 100
Secale Avenue, Camp Hill, PA '17001-8599 or at Iha address listed on you,' bill. Wrtie lo us as soon es possible. We must hear Irom you no lalor than
sixly (60) days after we sent you the tlrsl bill on which Ihs error or problem appeared. You can telephone us, but doing so will nol preserve your righls.
In your taller, give us Iha Iollowing Information:
Your name and account number.
The dollar amouol of the suspected error.
Describe Ihs error end explain, If you can, why you believe there is an error. If you need more Informalion, describe Ihs item you are nol sure
about. ·
If you have a~./Ihodzed os lo pay your bill automallcaily from your savings or checking account, you can slop Ihs paymenl on any amount you think is
wrong. TO slop lite paymecl, your letter musl reach us Ihree (3) business days belore Ihs aulomatic payment is scheduled lo occur.
Your righta and our responsibilities after we receive your wrlUen noUce.
We mosl ac, knowledge your taller wtihin Ihldy (30) days, unless we have cerrecled Ihs error by Iheo. Wilhin ninely (90) days, we musl ellher correct the
orrer or explain why We believe the bill was correcl.
After we rec..alva yom' leltoro we cannot by to ootiecl any amount you qeeslioo, er re oft o
emounlwhilawaeretnvestinelin,~ ~..;~.~,,".'."'-~,-u~",~aYp~yanyunpeld amounlagelnst your CredilLImti yo,.~^.^, ~.e..I-°~'''yuu'u~meam°un'
It we lind thai we made a mistake on your bi.q, you will nol have 1o pay any tinenne charges relaled lo any questioned amount. If we didn'l make a
mislake, you may have Io pay finance charges, and you will have lo make up any missed payments on the queslloned amoonl. In either case, we will
send you a slalamenl of Ihs amounl you owe and Ihs dale on which il is due.
If you tall to pay the amount ha we Ihlnk you owe, we may reporl you as dellnquenl. However, it our explaneUon does no sallafy you and you wrlla Io
us within lan (f0) days lolling ua Ihat you sllli refuse 1o pay, we musl tel anyone we reporl you to thai you have a question about your bill. And, we
.~.usl loll you Ihs name of anyone we repodad you o. We muel tall anyone we report you to thai the mailer has been settled belwsen us when II finally
Exhibit G
References in fha shaded area are for Lender's use only and do not limit th~this document to an.[.~.a.r licular loan or ifem.
Borrower: Sydney D. Caplan (SSN: 211-22-8806) Lender: Commerce Balll(~lsburg, Netl~nea Assoclealo~l
Mean Office/Commerciea Cost Center
~l~ddleV~eu(~lnlYes~r mJ~y ~Ye or hereeater may become barred by any statute of limitations; end whelhar such Indebtedness may be or hereafter may
delivered or performed by Borrower. have been duly authorized by all necessary action by Borrower; do not require the consent or approval of
any ofher person, regulatory aoihofity or governmental body; and do nof conflict with. result in a v[olaiion of, or constitufe a default under (a) any
provision ct any agree~ct or other Instrument binding upon Borrower or (b) any law, governmentsl regulation, court decree, or order applicable
to Borrower.
Financfel Inlermalfen. Each financial statement of Borrower supplied to Lender truly and complafely disclosed Borrower's financial condition as
of the date of the sfeiement, and there has been no material adverse change In Borrower's financial condition subsequent to fha date oi the most
recent financial sfetsment supplied fe Lender. Borrower has no material contingent obligations except es disclosed in such financial statements,
Legal Effect. This Agreement constriutes, end any instrument or agreement required hereunder to be given by Borrower when del(vered will
coestitufe, legal, valid and binding obligations of Borrower enforceable against Borrower in accordance with their respective latins,
Properties. ExCept as contemplated by this Agreement or as previously disclosed in Borrower's financial statements or in writing to Lender and as
accepted by Lender, and except Ior property tax liens for taxes not presently due and payable, Borrower owns end has good title to all of
Borrower's propefties free and cieer of all Security Intsrests, and has not executed any security documents Or financing statements rotating to such
properties. All of Borrower's properties are titled in Borrower's legal name, and Borrower has not used, or filed a ~]nanclng sieiemeni under, any
cthe~ name 1or at leasl the tsst five (5) years.
H~rdous Subalances. The farms 'hazardous waste,' "hazardous substance." "disposal," "release," and 'lhreafened release," as used in this
Agreement, shall have the same meanings as sol forth ~n the "CERCLA," "SARA," the Hazardous Materials Transportation Act, 49 U.S.C. Section
1801, el seq., the Resource Conservation and Recovery Act, 42 U.S.C. Section 6~01. el seq., or other applicable state or Federal laws. rules, or
regulations adopted pursuant to any of Ihe foregoing. Excepl as disclosed to and acknowledged by Lender in wriling, Borrower represents and
warrants that: (e) During the period of Borrower's ownership of the propedlas, there has been no use, generation, menutscture, storage,
treatment, disposal, release or threatened release of any hazardous waste or substance by any pe~son On, under, eboul or from any of the
properties. (b} Borrower has no knowledge of. or reason Io believe that there has been (I) any use, generation, manufacture, storage, Ireatment,
disposal, release, or threalened release of any hazardous wests or substance on, under, about or from the properties by any prior owners or
occupants of any ct the propeftles, or (ii) any actual Or threatened litigation or claims of any kind by any person relating fo such matters. (c)
Neither Borrower nor any fenanf, contractor, agent or other eulhorized user of any of the properties shall use, generate, manufacture, store, Ireat.
dispose ol, or release any haZardous waste or substance on, under, about or from any ct the properties; and any such activity shall be conducted
In compliance with all appllcebts federal, state, and Iocoi laws, regulations, and ordinances, including wit houl limltaiicn those laws, regulations and
ordinances described above. Borrower aulhorlzes Lender and ifs agents to enter upon the pregedies to make such inspections end tests as
Lender may deem eppropdafe to detsrmina compliance of the properties with this section of the Agre~menh Any inspections or tssts made by
Lender shall be al Borrower's expense end for Lender's purposes only and shall not be construed to create any responsibility or liability on the part
of Lender 1o Boffower or Io any other person. The representations 8nd warranties contained here~n are based on Borrower's due di1[gence In
ievestigatlng lhe properties lot hazardous waste and hazardous substances. Borrower hereby (a) releases and waives any future cieims against
Lender for indemnity or contribution in the event Borrower becomes liable for cleanup or other bests under any such laws, and (b) agrees to
indemnify end hold harmlesS Lender against any and all claims, losses, liabilities, damages, penalfies, and expenses which Lender may dlreclly or
indirectly susfein or suffer resulting from a breach of this section of lhe Agreement or as · consequence of any use, generation, manufacture,
storege, disposal, release or threatened release of a hazardous waste or substance on the propedlas. The provisions ct this section of the
Agreement, including the obligation to indemnify, shall survive the paymenl of fha Indedfedness end the termination or expirahon of this
Agreemenl and shell not be affected by Lender's acquisition of any interest In any of the properties, whether by foreclesure or otherwise.'
Litigation and Claims. NO lifigation, claim, investigation, administrative proceeding or similar action (including those for unpaid texas} against
Borrower is pending or threafened, and no other event has cccurred which may maferiaily adversely affect Borrower's tlnanclal condition or
properties, other than litigation, claims, or other events, if any. that have been disclosed to and acknowledged by Lender in wriling.
Texas. To the beSt of Borrower's knowladge, ell tax returns and repeals of Borrower that are or were required Io be filed, have been tiled, and all
taxes, assessmenls and other governmental charges have been paid in fuII, except those presently being or to be contested by Borrower in good
faith in the ordieary course ct business and for which adequate reset'as have been provided,
Lfen Prlorfty. Unless othe~se previously disclosed 1o Lender in writing, BorroW'er has mot entered into or granted any Security Agreements, or
permitted Ihe filing or attachment of any Security Inlarests on or affecting any et the Colielarai directly or indirectly securing repayment of
Borrower's Loan and Note, that would be prior or fha1 may in any way be supedor to Lender's Security Interests and rights In and fe such
Binding Effect. This Agreement. the Note, ell Security Agreements directly or indirectly securing repayment ct Borrower's Loan and Note and all
of the RelafeO D~cuments are binding upon Borrower as well as upon Borrower's successors, represenfetives and assigns, and are legally
enforceabla in accordar~ce with their respective terms.
Commercial Pure.es. Borrower intends 1o use the Loan proceeds solely for business er commercial related purposes.
Employee Beneftl Plans. Each emptsya~ benefll plan as to which Borrower may have any Itsbllfi~ compiles in all material respects wl~h all
appiicabts reqoiremenls of law and regulelions, end (I) no Reportable Event nor Prohlbltsd Transaction (as defined in ERISA) has occurred wfih
respect to any such plan, (ii) Borrower has not withdrawn from any such plan or initiated steps lo do so, (iii) no stsps have been tsken Io
termlnale any such plan, end (iv) lhere are no unfunded Iletrllitles other than those previously disclosed fe Le~lder in writing.
Locoflon of Borro~'er'a Offices and Records. Borrower's place of business, or Borrower's Chief executive office, if Borrower has more than one
place of business, is Iocafed at 3926 Durham Road, Harrisburg, PA 17110. Unless Borrower has designated othe~vise in writing this location is
also the office or office~ where Borrower keeps its records concerning the Collateral.
Inf~rmagon. All Information heretolore or contemporaneously herewith furnished by Borrower to Lender for the purposes oi or In connection wilh
Ihls Agreement or any transaction contemplated hereby is, and all information hereafter furnished by or on behalf el Borrower to Lender will be,
true and accurate in every material respect on the date es of which such ~nformatlon is dated or certified; and none el such informalton is or wilt be
incomplete by omitting Io slate any materiel tsct necessary 10 make such Information not misleading.
Survival et Representoflon$ and Warranties. Borrower understands end agrees that Lender. wifhout independent investigation, is retying upon
the above representations end warranties in extending Loan Advances to Borrower. Borrower further agrees that the foregoing representations
and warranties shall be continuing in nature end shall remain in full force and effecl until such time as Borrower's Indebtedness shall be paid in
AFFIRMATIVE COVEN~J~ITS. Borrower covenants and agrees with Lender that, while this Agreement is In of ioof, Borrower will:
Litigation. Promp{ly inform Lender in writing of (a) all matefial adverse changes in Borrower's financial condllion, and (b) ail existing and all
threatened litigation, claims, investigations, administrative proceedings or similar actions affecting Borrower or any Guarantor which could
maferially affect the financial condffin of Borrower or the financial condition of any Guarantor.
Financial Reoorda. Maintain its books and records in accordance wiih generally accepted accounting principles, applied on a consistent basis,
and permit Lender 1o examine and audit Borrower's books and records at alt reasonable times.
Financial Statements. Furnish Lender wilh, as soon as available, but in no event later than ninety (90) days after the end of each ;~scal year,
Borrower's balance sheet and income sfefement for {he year e~ded, reviewed by a certified public accounlanl satistscfery to Lender. All financial
repeals required to be provided under this Agreement shall be prepared in accordance with generaity accepted accounting pdnclptss, egpllad on
a consistent basts, end certified by Borrower as being true and correct.
Addlllonal I~formatlen. Furnish such addlfiocal inlormaiion and stsiements, lists ct assets and liabilities, agings of receivables and payables,
invenfery schedules, budgets, forecasts, tax returns, and other reports with respect to Borrower's financial condition and business operalions es
Lender may request from time to time,
InaurallOa. Maintain fire and other risk {nsurance, public liability insurance, and such other Insurance as Lender may require with respect to
Borrower's propedlas and operations, in form. amounts, coverages and with insurance companies reasonably aoceplabla to Lender. Borrower,
upon requasl of Lender. will deliver fe Lender from time to time the pollclas or cedificafes of iesurenoe in form ~.atisfectory to Lender, including
slipulations thai coverages will not be cancelled or diminished wlthola af least thirty (30) days' prt~' written notice to Lender. Each insurance
policy atso shall include an endorsement providing that coverage in favor ct Lender will not be impaired in any way by any act, omission or defeoil
of Borrower er any other person, in connection with all policies covering assets tn which Le~der holds or is offered a secedly intsrest Ior Ihe
Loans, Borrower will provide Lender with such loss payable or other endorsements as Lender may require.
In~rance Rel~rle. Furnish lo Lender, upon request of Lenge~. repo~s on e~oh extsfing insurance policy showing such Information es Lender
may teaser, ably request, treading without limifefion Ihe foilowieg: (a) the name ct the insurer; (b] the risks Insured; (c) {he amount of Ihe policy;
(d) the prope~tss insured; (e) the then currenl property values on the basle of which ins~sr~ce has been defeieed, and the manner ct
deferminieg those values; and (I) the explrafion date of the policy. In addition, upon request of Lender (howeve[ not more often than annually),
Borrower will have an Independenl appraiser satisfactory Io Lender defermlne, es applicable, the acluai cash value er replacemenl cost of any
Collateral. The cost of such approval st ] paid by Borrower.
Other Agreements. Compfy with all terms and conditions of all other agreements, whether now or hereafter extsting, between Borrower and any
other gaily and notify Lender tmmedlataly in writing of any defeuti in connection with any other such agreements.
Loan Proceeds. Use all Loan proceeds solely for Eorrower's business ogerations, unless specifically consented to the contrary by Lender in
writing, es and Lens Pay and discharge when due alt el its indebtedness and obligations including without limitation al~ assessments,
date on which penatile~ would attach, and ell lawful claims that, ~f unpaid, might become a g
income, or profits. Provided however, Borrower will not be required to pay and discharge any such assessment, tax, charge, laW, lien or claim so
long as (a) the legalify of the same she# be conte~tied in good faith by apprepriAfe proceedings, and (b) Sorrower shall have established on
taxes, charges, levies, liens and claims against Sorrower's properties, income, or profile.
or under any of Ihe Retsfed DoCuments.
i~ a reesooabta and prudenl manner and in compliance with all eppficable federal, sfefe and municipal laws, ordinances, rules and regulations
res ecn s p ope es charters, bus nesses and ope a ions, Inc udlng withou llmifefion, comp[lance wtih the Americans With Disebtliltas ACl and
wtihp all ~l~nimum funding standards end o her requ rements o ER SA and elbe laws appllcebfe o BOtTOWer'S amp oyee beneti pens
and compufer software programs for the generation of such records) in lhe possession of a third party, Borrower, upon request of Lender, shall
noUfy such party to permit Leader flee access to such rec~ds at all reesonabts times and to provide Lender with copies of any records it may
request, all at BO*TOWer'S expense.
Compliance Certificate. Unless waived In writing by Lender, brovlde Lender at taast annually and at the time of each disbursement ct Loan
dale of the certificate, no Event of Default exists under this Agreement.
Environmental Compliance and RepOrts. Sorrower shall comply in all respects with all environmental protection tsderal, stata and ~ocal laws,
statutes, regulations and ordlnarlces; not cause or permit to exist, as a result of an intentional or unldientional action or omission On its peri or on
the peri o an hrd party on prepedy owned andlo occupied by Borrowe ~ny environmentsl e, ctivtiy where damage may r~uti Iq the
state or local governmental authorities; shall furnish to Lender gromptly and in any event within thirty (30) days ahe~ receipt thereof a copy of any
notice, summons, lien, citation, directive, letter or olher communication from any governmental agency or instr umentsltiy concerning any intadilonel
and to pe~tact all Securify Interests.
RECOVERY OF ADDITIONAL COSTS. if the imposition of or any change in any law, rule, regulation or guideline, or the interpretafio~l or abplication of
any thereof by any court or administrative or governmental authodfy (indiuding any request or pdiicy not having the Iorce di law) shall impose, modify or
make applicable any taxes (except U.S. federal, state or tacat income or franchise taxes imposed on Lender), reserve reduiren'~nts, capital adequacy
requirements or other obligations which would (a) l~cmese the cost to Lender lot extending or malnfelding the credit faallities to which this Agreement
ralatas, (b) reduce the amounts payabfe to Lender under this Agreement or the Retsfed Documents, or (c) red,ce the rate el relurn on Lender's capital
additional amounts as will combenSafe Lender therefor, within five (5) days after Lender's wdifen demand for such paymenl, which demand shall be
aocompantad by an explanation ct such imposition or charge and a calcu~tion in reasonable defeil of the additional amounts payable by Borrower,
which explanation and calculations shall be condiustve in the absence el manifest error,
NEGATIVE COVENANTS. Borrower covenants and agrees with Lender that while this Agreement is in effect, Borrower shall not, without the pder
Agreement, create, incur or assume indebtedness for borrowed money, Including captial leases, (b) except as allowed as a Permilted Lien, sell,
Contlnutty ct Operations. (a) Engage in any business activities substantially differenl than those in which Borrower is presently engaged, or (b)
cease operations, liquidate, merge, transfer, acquire or consolidate with any other entity, change owr~rshlp, dissdive or transfer or sail Co(lateral
Leans, Acquisitions and Guaranltas. (a) Loan, invest in or advance money or assets, (b) purchase, create or acquire any interest in any other
enferpfise or enUty, or (o) incur any obligation as surety or guarantor other than in the ocdinary course of business.
CESSATION OF AOVANCES, If Lender has made any commitment to make any Loan ~o Bce'ewer, whether under this Agreemenl or under any other
agreement, Lender shall have no obligation lo make Loan Advances or 1o disburse Loan proceeds If: (a) Bo~ower or any Guarantor is in detault under
any Loan; (d) any Guarantor seeks, claims or otherWiSe atfempls to llmil, modify or revoke such Guarantor's guaranty of the Loan or any other teen
with Lender; or (e) Lender in good lalth deems itself insecure, even though no Event of Default shall have occurred.
ANNUAL PAYOUT PERIOD. Borrower shall be required to reduce the outstanding principal balance under this Line of Credit to zero for a thirty (30)
consecutive day period during each ~ar of the Line el Credit.
COMMITMENT LETTER COMPLIANCE. This loan Is contingent upon Borrower's compliance with all of the terms and conditions contained in the
shall have the right to declare this ~oan in default and demand payment in full of the grinclpal balance remalding unpaid, Ingather wlfh al~ Intarest which
POST CLOSING COMPLIANCE. Borrower agrees to execute, re--execufe, cause any Guarantor(s) or other third parfy(tas) involved in the
oonsittuta an evenl of defedit under the Loan.
pLII~.IClTY. The Lender, at tis option, may announce and pubUclze the source of the firmnclng granted hereunder, by means and media selected hy
the Lender. The Lender, at its option, may deliver Io any properfy(tas) pledged as secu~lfy for the repayment ol the loan, signs for display indicating
thai the Lender IS providing the IJna~cing for lee premises. If such sign is provided by the Lender, Borrower agrees to cause the sign to be displayed in
--Lender all Borrower's right, title and interest in and to, Borrower's accounts with Lender (whether checking, sa~ngs, or some other account), including
without limitation all accounts hold jointly with someone oise and all accounts Borrower may open in the future, excluding however all IRA and Keogh
accounta, and alt tr~st accounts for which the grant el a secudty tnterest would be prohibited by law. Borrower authorizes Lender, to ~he extent
permiJted by applicable taw, to charge or setoff alt sums owing on the Indebtedness against any and all such accounts.
EVENTS OF DEFAULT. Each ct the foilowlng shall constitute an Event of Delault under this Agreement:
Default On Indebtedness. Faiture of Borrower to make any paymenl when due on the Loans.
Other Defaults. Failure of Borrower Or any Grantor ~o comply wilh or to perlorm when due any other ~errn, obligoiicn, covenant or condi[ion
contained in this Agreement or in any of the Relaled Documents, or failure of Sorrower to comply with or to pedorm any other lerm, obligation,
covenant or condition conlained in any other agreemenl between Lender and Borrower.
Default in Favor of Ttllrd Paltles. Should Borrower or any Grantor delault under any Ioan~ extension of credit, security agreement, purchase or
sales agreement, ~' any other agreement, in favor of any other creditor or person thet may matede#y affect any el Borrower's propedy or
Borrower's or any Grantor's ability to repay Ihe Loans or perform their respective obligations under this Agreement er any of the Related
Occuments.
FalSe Statements. Any warranb/, representation or statement made or lurnlshed to Lender by or on behall of Borrower or any Grantor under this
Agreement or Ihe Related Documenls is false or misleading in any matertal respect at the time made o~ furnished, or becomes false or misleading
year 2~o0 Comp#ance Failure. Failure 1o meal t he dea~dlines.?(~uired i~ t? Ye_ar 2007 Co., .m~ia~n.n~nce Agreement to be Year ;~00 Compliant or a
BORROWER ACKNOWLEDGES HAVING READ ALL THE PROVISIONS OF THiS BUSINESS LOAN AGREEMENT, AND BORROWER AGREES TO
ITS TERMS. THIS AGREEMEHT IS DATED AS OF JULY 22, 1998.
BORROWER:
X
Exhibit H
EXHIBIT "H"
Commerce Bank
Date of Payment Interest
to Commerce Bank Payment
1-5-99 $2077.31
2-4-99 1988.16
3-5-99 2040.28
4-2-99 1842.84
5-5-99 2040.29
6-1-99 1974.47
7-6-99 2040.29
8-5-99 2010.84
9-3-99 2093.98
10-5-99 2144.21
11-4-99 2078.39
12-3-99 2147.67
2-3-00 2201.30
3-2-00 2234.87
4-5-00 2109.57
5-4-00 2255.05
6-5-00 2182.31
7-6-00 2383.23
8-4-00 2286.23
9-5-00 2362.44
10-5-00 2362.43
11-4-00 2286.23
12-5-00 2362.44
12-30-00 2286.23
2-1-00 2362.44
3-3-01 2158.00
Date of Payment Interest
to Commerce Bank Payment
4-2-01 1939.83
5-3-01 2147.68
5-31-01 1972.63
6-30-01 1912.12
8-14-01 2381.49
9-5-01 1825.52
10-3-01 838.28
11-6-01 772.47
-2-
CERTIFICATE OF SERVICE
The undersigned hereby certifies that on this date a true and correct copy of
the foregoing document was served by first class mail, postage prepaid, on the
following:
James J. Touloumes, Jr.
328 West Old York Road
Mount Holly Springs, PA 17065
Froso I. Touloumes
328 West Old York Road
Mount Holly Springs, PA 17065
Constantine G. J. Touloumes
"Kosta" G. J. Touloumes
3 W. Pine Street
Mount Holly Springs, PA 17065
JFK-T Group, Inc.
c/o Kosta's Restaurant
451 N. 21st Street
Camp Hill, PA 17011
Robert L. Knupp, Esquire
KNUPP, KODAK & IMBLUM, P.C.
407 North Front Street
Harrisburg, PA 17101
/ 'l~e~ra P. Fourlas
Dated: November /¢, 2001
CERTIFICATE OF SERVICE
The undersigned hereby certifies that on this date a true and correct copy of
the foregoing document was served by first class mail, postage prepaid, on the
following:
James J. Touloumes, Jr.
328 West Old York Road
Mount Holly Springs, PA 17065
Froso I. Touloumes
328 West Old York Road
Mount Holly Springs, PA 17065
Constantine G. J. Touloumes
"Kosta" G. J. Touloumes
3 W. Pine Street
Mount Holly Springs, PA 17065
JFK-T Group, Inc.
c/o Kosta's Restaurant
451 N. 21s~ Street
Camp Hill, PA 17011
Robert L. Knupp, Esquire
KNUPP, KODAK & IMBLUM, P.C.
407 North Front Street
Harrisburg, PA 17101
'l~e~ra P. Fourlas
Dated: November ~--~ , 2001
SYDNEY D. CAPLAN : IN THE COURT OF COMMON PLEAS
: CUMBERLAND COUNTY, PENNSYLVANIA
Plaintiff :
: NO. 01-3215 CIVIL TERM
:
JAMES J. TOULOUMES, JR., :
EFRONSINI I. TOULOUMES :
a/k/a FROSO I. TOULOUMES, :
CONSTANTINE G. J. TOULOUMES, :
JAMES J. TOULOUMES, III, and :
JFK-T GROUP, INC., :
Defendants : JURY TRIAL DEMANDED
PRELIMINARY OBJECTIONS
AND NOW, come Defendants James J. Touloumes, Jr., Efronsinin
I. Touloumes, a/k/a Froso I. Touloumes, Constantine G.J.
Touloumes, James J. Touloumes, III, and JFK-T Group, Inc., by and
through their Attorneys, Knupp, Kodak & Imblum, P.C. and
preliminarily object as follows:
I. LEGAL INSUFFICIENCY
1. The Plaintiff's Complaint makes allegations of advances
and loans which are unsupported by written documents and violate
the Pennsylvania Statute of Frauds.
2. The Plaintiff's theory concerning the piercing of the
corporate veil is unsupported by documentation in violation of
the Pa. R.C.P. 1019 (h).
3. The Plaintiff's breach of contract action is in
violation of the Pennsylvania Statute of Frauds.
4. The Plaintiff's Count for Promissory Estoppel both
violates the Statute of Frauds and Pa. R.C.P. 1019 {h).
5. Plaintiff's Count for Unjust Enrichment also violates
the Pennsylvania Statute of Frauds and Pa. R.C.P. 1019 (h).
II. FAILURE OF PLEADINGS TO CONFORM WITH RULE OF COURT
6. The averment made hereinabove, insofar as they are
sufficient to establish a violation of Pa. R.C.P. 1019 (h) are
incorporated by reference.
III. INSUFFICIENT SPECIFICITY IN A PLEADING
7. The Plaintiff's pleading, insofar as it makes averments
without reference to documents which would establish any loan
arrangement or contractual arrangement by and between the parties
lacks specificity and is legally insufficient to establish a
cause of action. Further, to the extent that any allegation
alludes to the substance of fraudulent conduct, Plaintiff has
failed to plead such conduct with specificity {Pa. R.C.P. 1019
(b)).
WHEREFORE, Defendants request that Plaintiff's Complaint be
dismissed.
Respectfully submitted,
KNUPP, KODAK & IMBLUM, P.C.
407 North Front Street
P.O. Box 11848
Harrisburg, PA 17108
(717) 238-7151
Attorney for Defendants
Date:~ ~
2
CERTIFICATE OF SERVICE
I, Robert L. Knupp, Esquire, hereby certify that I have
served a copy of the foregoing Preliminary Objections on the
following person(s) by depositing a true and correct copy of the
same in the United States Mail, first class, postage prepaid, at
Harrisbur9, Dauphin County, Pennsylvania addressed to:
JAMES P DEANGELO ESQUIRE
MCNEES WALLACE & NURICK LLC
PO BOX 1166
HARRISBURG PA 17108
KNUPP, KODAK & IMBLUM, P.C.
407 North Front Street
PO Box 11848
Harrisburg PA 17108-1848
717 238-7151
PRAEClPE FOR LISTING CASE FOR ARGUMENT
(Must be typewritten and submitted in dup/_icate)
TO THE PROTHONOTARY OF CUMBERLAND COUNTY:
Please listthewithinmatterforthenextArg~aentCourt.
CAPTION OF CASE
(entire caption must be stated in ~lll)
Sydney D. Caplan
plaintiff)
James J. Touloumes, Jr., Efronsini I.
Touloumes a/k/a Froso I. Touloumes,
Constantine G.J. Touloumes, James J.
Touloumes, III, and JFK-T Group, Inc.
(Defem~nt)
No. Civ~_l 01-3215 19
1. State matter to be argued (i.e., plaintiff's motion for new trial, defendant's
demu~'~e_r to cum,,pl~nt, etc. ):
Defendants' Preliminary Objections
2. Identify counsel who w~ ] ] argue case:
(a) for plaintiff: James P. DeAngelo
~ess: McNees Wallace & Nurick LLC
100 Pine Street
Harrisburg, PA 17101
(b) for defer~ant:
~ess: Robert L. Knupp
Knupp, Kodak,& Imblum, P.C.
407 North Front Street
Harrisburg, PA 17101
3. I w~ 11 notify al 1 parties in writing within t~o days that this case has
been I i~ted for ~t.
4. Ar~3a~-nt Co~r~ ~ate:
D~ted: December 18, 2001 ~jtatm%sr~p.f%e%nl~ei~otiff
SYDNEY D. CAPLAN, : IN THE COURT OF COMMON PLEAS
Plaintiff : CUMBERLAND COUNTY, PENNSYLVANIA
:
v. : NO. 01-3215 CIVIL TERM
:
JAMES J. TOULOUMES, JR., :
EFFRONSINI I. TOULOUMES :
alk/a FROSO I. TOULOUMES, :
CONSTANTINE G.J. TOULOUMES, : JURY TRIAL DEMANDED
JAMES J. TOULOUMES, III and :
JFK-T GROUP, INC., :
PRAECIPE
TO THE PROTHONOTARY
COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PENNSYLVANIA
SUGGESTION OF BANKRUPTCY
Please be advised that JFK-T Group, Inc. filed for protection under Chapter 11
of the United States Bankruptcy Code in the United States Bankruptcy Court for the
Middle District of Pennsylvania to No. 1-02-00446 on January 29, 2002.
Respectfully submitted,
Knupp, Kodak & Imblum, P.C.
PO Box 11848
407 North Front Street
Harrisburg, PA 17108
(717) 238-715t
CERTIFICATE OF SERVICE
I hereby certify that on this the day of J~.~., 2002, I placed in the
United States Mail, postage prepaid the within document to the following:
JAMES P. DeANGELO, ESQUIRE
MCNEES, WALLACE & NURICK, LLC
PO BOX 1166
HARRISBURG, PA 17108-1166
~T"-~- Robert L. Knupp
PRAECIPE FOR LISTING CASE FOR ARGUMENT
TO THE PROTHONOTARY OF CUMBERLAND COUNTY:
Please list the within matter for the next Argument Court.
SYDNEY D. CAPLAN,
Plaintiff
v. NO. 01-3215 CIVIL TERM
JAMES J. TOULOUMES, JR., EFRONS1NI
I. TOULOUMES A/K/A FROSO I. TOULOUMES,
CONSTANTINE G. J. TOULOUMES, JAMES
J. TOULOUMES, III, AND JFK-T GROUP, INC.
Defendants
1. State matter to be argued (i.e., plaintiffs motion for new trial, defendant's demurrer to
complaint, etc.):
Defendants' Preliminary Objections
2. Identify counsel who will argue case:
(a) For Plaintiff: James P. DeAngelo
McNees Wallace & Nurick LLC
100 Pine Street
Harrisburg, PA 17101
(b) For Defendants: Robert L. Knupp
Knupp, Kodak & Imblum, P.C.
407 North Front Street
Harrisburg, PA 17101
3. I will notify all parties in writing within two days that this case has been listed for
argument.
4. Argument Court Date:
Dated: March 5, 2002 ~//Attomey for l~rl~fiti ff
SYDNEY D. CAPLAN, : IN THE COURT OF COMMON PLEAS OF
Plaintiff : CUMBERLAND COLrNTY, PENNSYLVANIA
:
v. : CIVIL ACTION - LAW
:
JAMES J. TOULOUMES,:
JR., EFFRONSINI I. :
TOULOUMES a/k/a :
FROSO I. TOULOUMES,:
CONSTANTINE G.J. :
TOULOUMES, JAMES J.:
TOULOUMES, III, and
JFK-T GROUP, INC.,
Defendants NO. 01-3215 CIVIL TERM
IN RE: DEFENDANTS' PRELIMINARY OBJECTIONS
TO PLAINTIFF'S COMPLAINT
BEFORE HOFFER, P.J., OLER and GUIDO, JJ.
ORDER OF COURT
AND NOW, this Ist day of April, 2002, upon consideration of Defendants'
preliminary objections to Plaintiff's complaint, and it appearing that by order of court
dated March 4, 2002, the Honorable Robert J. Woodside authorized the continued
prosecution of the present action by Plaintiff against Defendant JFK-T Group, Inc.,
debtor in a bankruptcy proceeding at No. 1-02-00446 RJW, United States Bankruptcy
Court for the Middle District of Pennsylvania, and following oral argument held on
March 27, 2002, the preliminary objections are denied, and Defendants are granted
twenty days fi.om the date of this order in which to file answers to Plaintiff's complaint.
BY THE COURT,
.Wesley Q~ Jr.,
James P. DeAngelo, Esq.
Debra P. Fourlas, Esq.
100 Pine Street
P.O. Box 1166
Harrisburg, PA 17108-1166
Attorneys for Plaintiff
Robert L. Knupp, Esq.
407 North Front Street
P.O. Box 11848
Harrisburg, PA 17108
Attorney for Defendants
:rc
SYDNEY D. CAPLAN IN THE COURT OF COMMON PLEAS
Plaintiff CUMBERLAND COUNTY,
PENNSYLVANIA
vs. NO. 01-3215 CIVIL TERM
JAMES J. TOULOUMES, JR., ET AL Defendants
PRAECIPE TO ENTER APPEARANCE
TO THE PROTHONOTARY:
Enter our appearance on behalf of Defendants, JAMES J. TOULOUMES, JR. and
EFFRONS1NI TOULOUMES a/k/a FOROSO I. TOULOUMES in the above matter and serve all
papers upon us at the address listed below.
Jacques H. Geisenberger, Jr., Esq.
GEISENBERGER & COOPER, P.C.
Lower Level - 45 East Orange Street
Lancaster, PA 17602-2846
Dated: April 4, 2002 GEISE~ R~ER & COOPER, P.C.
By: ~ ~ r Jr
J~c ~es' H. Geisenberge , .
p~)~ imey for Defendant(s)
~/cvA~e~ES J. TOULOUMES, JR. and
EFFRONSINI I. TOULOUMES a/k/a
FOROSO I. TOULOUMES
Lower Level, 45 East Orange Street
Lancaster, PA 17602-2846
(717) 397-3500
I.D. No. 06947
The appearance of GEISENBERGER & COOPER, P.C. entered for JAMES J. TOULOUMES,
JR. and EFFRONSINI I. TOULOUMES a/k/a FOROSO I. as above directed.
Dated: April ~, 2002
Prothonotary ~
2002165 LET/2
SYDNEY D. CAPLAN IN THE COURT OF COMMON PLEAS
Plaintiff CUMBERLAND COUNTY,
PENNSYLVANIA
vs. NO. 01-3215 CIVIL TERM
JAMES J. TOULOUMES, JR., ET AL Defendants
PRAECIPE SUGGESTING BANKRUPTCY
OF DEFENDANT JAMES J. TOULOUMES, JR.
TO THE PROTHONOTARY:
Defendant, James J. Touloumes, Jr., one of the Defendants in the above Case filed for
relief under Chapter 13 of the United States Bankruptcy Code on April 3, 2002 with the United
States Bankruptcy Cour~ for the Middle District of Pennsylvania, Case No. 1-02-01793. A copy of
the Petition is attached. Defendant suggests that this filing imposes a Stay of any further
proceedings in the above Case under 11 U.S.C.A.§362(a)(1).
Dated: April 4, 2002 GEISEN~ 3ER & COOPER, P.C.
Jac¢ s H~Ge~er, Jr.
Attt ey for Defendant(s)
JA] ;S J. TOULOUMES, JR. and
EFi :ONSINI I. TOULOUMES aJk/a
FO OSO I. TOULOUMES
Lower Level, 45 East Orange Street
Lancaster, PA 17602-2846
(717) 397-3500
I.D. No. 06947
2002165.LET/3
. ~ . .._.United States Ba?kruptcy C~0u~_
~zz)Dr.~. District of
~ou~o~es, ~., ~ ~. ~a ~.
All Other Nam~ u~ by the Debt~ in the last 6 years All Othe~ Names ~ed by the Joint Debtor m the last 6 years
186-28-2750/23-2193191
328 W. Old York Road
C~ISLE PA 17013
C~nty of Residence or of ~he C~n~y of Residence or of the
Principal P~ace o~ Bus/ness; C.~h~=~a~d Principal Place o~ Buaness:
Location ol Princ;pal Assets ot Business Debtor
~ Debtor has been domicil~ or has had a residence, principal place of business, or princi~l assets in ~his Distdc~ for 180 days imm~ately
pr~edin~ t~e date of this petition or for a longer pa~ of such tS0 days ~an in any other District
~ T~ere is a Oankruptcy ca~ concerning tie,tot's ~ffiliate. general panner, or pannersh~p pending in t~is Ois~rict.
Type o~ Debtor (C~k all ~x~ tha¢ appty) Chapter or Section of Bankruptcy Code Under Which
~ individual(s) ~ Railroad lhe Petition is Filed (Check one ~x)
~ C~ration ~ Slockbroker ~ Chapter7 ~ Chapter 11 ~ Chapter 13
~ Pa~nership ~ Comm~ityBroker ~ C~pter9 ~ Chapter 12
~ Other ~ Sec ~4. Case ancilta~ In foreign pr~eeding
Nature o~Debts (Check one box)
~ Consumer;Non-Business ~ Business Filing Fee (Check one box)
~ Full Filing Fee a/tach~
Chapter 11 Small Business (Ch~k all boxes that applyj ~ Filing Fee to be paid in installments (Applicable to individuals only)
~ Debtor is a small business as de~ned in ~ ~ U.S C ~ ~01 Must atiach signed application for the couP's conslderalion
~ Oebtor is and elects to be considered a small business under ce~ffying that the debtor is unable [o pay fee except ~n installments
11 U.S C ~ 1121(e) (Optional) Rule 1006(b~ See Olficiai Form No 3
Estimated Oebls ~ ~ .~.~
~/6~'u~nt*a~efition · ¥-:: '*": *' N~me*ofDebtor(s): _ · .... ..... FORMB1, Page2
. (This p~ge rnust'bl., completed and ~ed*T[F ~tiery c~ss)
Location Where Filed: Case Number: Date Filed:
Name of Debtor: Case Number: Date Filed:
District: Relationship: Judge:
Signature(s) of Debtor(s) (Ind~viduallJoint) Signature of Debtor (Corporation/Partnership)
I declare under penalty of perjury that the information provided in this I declare under penalty of perjury that the in~'ormabon provided in this
petition is true and correct. ~etition is true and correct, and that I have been authorized to file this
If petitioner is an individual whose debts are primarily consumer debts :~etition on behalf of the debtor.
ind has chosen to file under chapter 7] I am aware that I may proceed
under chapter 7, 11.12, or 13 of title 11, United States Code, understand The debtor requests relief in accordance with the chept~ of title 11,
he relief avatabte under each such chapter, and choose to proceed United States Code, specified in this petition.
under chapter 7.
I request rerief in accordance with the chapter of title 11, United States
of Atl[orne Sl~jnature of Non-Attorney l~ltion
,~ I catty that I am a bankruptcy petition preparer as defined in 11 U.S.C.
X ' ' § 110, that I prepared this document for compensation, and that I have
re =rovided the debtor with a copy Of this document.
45 East Orancre Street, ~
~ower ~evel I'Tlr~T~:
· ancaster PA 17602-2846 r~i
(7.17) 397-3.500 ~
Tele~3t~o~e Number Date ~' ~---
Names and Social Security numbers of ali oti~ indivj~:l~ats ',~
Exhibit A prepared or assisted in preparing this docume,,~
(To be compteted if debtor is required to file periodic reports
(e.g.. forms 1OK and 100) with the Securities and Exchange
Commission pursuant to Section 13 or 15(d) of the Securities
Exchange Act of 1934 and is requesting relief under chapter 11)
[] Exhibit A is attached and made a part of this petition.
Exhibit B
if more than one person prepared this document, attach additional
(To be competed if debtor is an individual sheets conforming to the appropriate official form for each person.
whose debts are primarily consumer debts)
l. the attorney for the petitioner named in the ~oregoing petition, declare
that ~ have informed the petitioner that [he or she] may proceed under X
exptained the relief avaitabta under each such chapter.
X
S~nam,~ o~ A~o.~ey ~, oe~s) A bonRruptcy petition preparer's failure to comply with the provisions
of title 11 and the Federal Rules of Bankruptcy Procedure may result
~,~ in fines or imprisonment or both 11 U.S.C. § 110:18 U.S.C. § 156.
UNITED STATES BANKRUPTCY COURT ~, ~ ~,~v ~,~l~rc~ ~ ~
Case No. 1-02-01793
JAMES J. TOULOUMES, JR. t/d/b/a
T. JIMMY'S
Chapter 13
Debtor 1' 0 2 ',0 0 0 9 1 A
NOTICE OF REMOVAL
James J. Touloumes, Jr. ("Debtor"), by his attorneys, Jacques H. Geisenberger, Jr., Esq.,
files this Notice of Removal and respectfully represents: /~LL 0(I[;U~,/IENT$ REGARDING THIS MATTER
r~usl' BE IDENTIFIED B~Y BO'E~ ADVERSARY
I. There is presently pending an action entitled: AND BANKRUPTC~'CAS~I~LIMBERS.
IN THE COURT OF COMMON PLEAS :x
OF CUMBERLAND COUNTY, PENNSYLVANIA c
CIVIL ACTION - LAW }'~
c-~ t-~
vs. No. NO. 01-3215 CIVIL TERM
2. On April 3, 2002, Defendant, filed a voluntary petition under Chapter 13 of the
Bankruptcy Code with the United States Bankruptcy Court for Middle District of Pennsylvania.
Debtor continues to operate his business, T. Jimmy's Place, as Debtor-in-Possession and is
presently acting in such capacity.
3. Pursuant to Bankruptcy Code section 544(b), Debtor-in-Possession is the successor in
interest as Defendant in said state court action.
2002165 BAN/I2
4. Pursuant to 28 U.S.C. § 1452 and Bankruptcy Rule 9027, Debtor removes the
above-captioned litigation from the Court of Common Pleas of Cumberland, Pennsylvania to the
United States Bankruptcy Court for the Middle District of Pennsylvania.
5. Removal is timely filed as Defendants' Preliminary Objections to the Complaint were
Denied by the Pennsylvania Court on April 2, 2002. Defendants, including Debtor, were given
twenty (20) days to file an Answer to the Complaint.
6. Upon removal the proceeding is a core matter.
7. Attached as Exhibit "A" is a copy of all process and pleadings filed in said Pennsylvania
Court proceeding.
By: ~ ,~'LIF-~ ~"'~:=~..0- ,
Ja~ e~ H. f3{~is~e~ber~r, Jr.
aey fdr-,Chapter 13 Debtor,
.es Touloumes,
J.
Jr.
~er Level, 45 East Orange Street
Lancaster, PA 17602-2846
(717) 397-3500
I.D. No. 06947
2002t65 BAN/13
PYS510 Curaberland County Prothonotary's office Page 1
Civil Case Inquiry
2001-03215 CAPLAN SYDNEY D (rs) TOULOUMES JAMES J JR ET AL
Reference No..: Filed ........ : 5/25/2001
Case Type ..... : WRIT OF SUMMONS Time ......... : 2:59
Ju~gmeh% ....... 00 Execution Date 0/00/0000
Juage Assigned: Jury Trial ....
Disposed uesc.: Disposed Date. 0/00/0000
............ Case Comments ............. Higher ~rt 1.:
Higner crt 2.:
General Index Attorney Info
CAPLAN SYDNEY D PLAINTIFF DEANGELO JAMES P
ROTHMAN EDWARD W
TOULOUMES JAMES J JR DEFENDANT GEISENBERGER JACQUES H JR
328 WEST OLD YORK ROAD
MOUNT HOLLY SPRINGS PA 17065
TOULOUMES FROSO I DEFENDANT DOLL CRAIG A
328 WEST OLD YORK ROAD
MOUNT HOLLY SPRINGS PA 17065
TOULOUMES CONSTANTINE G J DEFENDANT
3 WEST PINE STEEET
MOUNT HOLLY SPRINGS PA 17065
TOULOUMES JAMES J III DEFENDANT
272 SUE DRIVE
HIYMMELSTOWN PA 17036
JFK-T GROUP INC DEFENDANT
C/O KOSTA'S RESTAURANT
451 NORTH 21ST STREET
CAMP HILL PA 17011
********************************************************************************
* Date Entries *
............. FIRST ENTRY ..............
5/25/2001 PR3kECIPE FOR WRIT OF SUMMONS IN CIVIL ACTION-WRIT OF SUMMONS ISSUED
7/06/2001 SHERIFF'S RETURN FILED
Litigant.: TOULOUMES JAMES J JR
SERVED : 6/08/01 WRIT OF SUMMONS MT HOLLY SPRINGS PA
Costs .... : $36.68 Pd By: MCNEES WALLACE & NURICK 07/06/2001
7/06/2001 SHERIFF'S RETURN FILED
Litigant.: TOULOUMES FROSO I .
SERVED : 5/31/01 WRIT OF SUMMONS CAMP HILL PA
Costs .... : $25.30 Pd By: MCNEES WALLACE & NURICK 07/06/2001
7/06/2001 SHERIFF'S RETURN FILED
Litigant.: TOULOUMES CONSTANTINE G J
SERVED : 6/08/01 WRIT OF SUMMONS MT HOLLY SPRINGS PA
Costs .... : $16.00 Pd By: MCNEES WALLACE & NLrRICK 07/06/2001
7/06/2001 SHERIFF'S RETURN FILED
Litigant.: JFK-T GROUP INC
SERVED : 5/31/01 WRIT OF SUMMONS CAMP HILL PA
Hnd To: FROSO TOULOUMES
Costs .... : $16.00 Pd By: MCNEES WALLACE & NI/RICK 07/06/2001
7/06/2001 SHERIFF'S RETURN FILED
Litigant. TOULOUMES JAMES J III O
SERVED 6/29/01 NOT,FO,UND WRIT OF SUI~MONS HBG PA DAUPHIN C
...... ...............
7/I3/2001 PRAECIPE FOR ENTRY OF APPE .RA CE FOR PLFF BY EDWmD W
'7/30/2001 PRAECIPE TO REISSUE WRIT OF SUMMONS - BY JAMES P DEJkNGELO ESQ FOR
PLFF
8/o2/2ooi --
pYSS10 Cumberl~d.~ounty Prothonotary's Office Page 2
~lvll Case Inquiry
2~01-0}215 CAPL~N SYDNEY D (rs) TOULOUMES JAMES J JR ET AL
Reference No..: Filed ........ : 5/25/2001
Case Tv~e ..... : WRIT OF SLrMMONS Time ......... : 2:59
Ju~gmeh% ..... ~ .00 Execution Date 0/00/0000
Judge Assignea: Jury Trial...
Disposed Desc.:
Disposed Date 0/00/0000
............ Case Comments ............. Higher Crt 1.
Higher Crt 2.
11/14/2001 COMPLAINT - BY JAMES P DEANGELO ESQ FOR PLFF
12/18/2001 PRELIMINARY OBJECTIONS - BY ROBERT L KNUPP ESQ FOR DEFTS
2/04/2002 PP~AECIPE FOR SUGGESTION OF BAi~KRUPTCY - BY ROBERT L KNUPP ESQ
3/05/2002 PP~AECIPE FOR LISTING CASE FOR ARGUMENT BY JAMES P DEANGELO ATTY
FOR PLFF - DEFENDANTS' PRELIMINARY OBJECTIONS
TO PLFF S COMPLAINT - FOLLOWING OP~AL ARGUMENT HELD ON 3/27/02 THE
PRELIMINARY OJBECTIONS AR DENIED AND DEFTS ARE GRANTED 20 DAYS
FROM THE DATE OF THIS ORDER IN WHICH TO FILE ANSWERS TO PLFF'S
COMPLAINT - BY THE COURT J WESLEY OLER JR J COPIES MAILED 4/2/02
4/08/2002 PR_AECIPE TO ENTER APP~iLANCE FOR DEFT - BY JACQUES H GEISENBERGER
JR ESQ
4/08/2002 PRAECIPE SUGGESTING BANKRUPTCY OF DEFT JAMES J TOULOUMES JR - BY
JACQUES H GEISENBERGER JR ESQ FOR DEFT
.............. LAST ENTRY ..............
* Escrow Information
* Fees & Debits Beg Bal Pymts/Adj End Bal *
********************************************************************************
WRIT OF SUMMON.S 35.00 35.00 .00
TAX ON WRIT .50 .50 .00
SETTLEMENT 5.00 5.00 .00
JCP FEE 5.00 5.00 .00
45.50 45.50 .00
* End of Case Information *
TRUE COPY FROM RECORD
T~imo~y whereof, I he~e unto set my bar~
ac4l tile seal o~ .said C~rt at CadiZ, Pa.
~NEY D. CAPLAN, IN THE COURT OF COMMON PLEAS OF
Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA
v. : NO. O/-_.~- ~ ~_
JAMES J. TOULOUMES, JR.,
FROSO I. TOULOUMES,
CONSTANTINE G. J. TOULOUMES, :
JAMES J. TOULOUMES, III, and
JFK-T GROUP, INC., CIVIL ACTION - LAW
PRAECIPE FOR WRIT OF SUMMONS
TO THE PROTHONOTARY OF SAID COURT:
Please issue a writ of summons in the above-captioned action·
__ Walt of Summons shall be issued and forwarded to ( ) Attorney
(X) Shedff
McNEES, WALLACE & NURICK
//.~James P. DeAngelo
L/ Supreme Court I.D. 62377
100 Pine Street,
P.O. 'Box 1166
Harrisburg, PA 17108-1166
717-232-8000
Attorneys for Plaintiff
Date: May 25, 2001
SYDNEY D. CAPLAN, IN THE COURT OF COMMON PLEAS OF
Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA
v. NO. 5/-
JAMES J. TOULOUMES, JR., :
FROSO I. TOULOUMES,
CONSTANTINE G. J. TOULOUMES,
JAMES J. TOULOUMES, III, and
JFK-T GROUP, INC., CIVIL ACTION - LAW
WRIT OF SUMMONS
TO: JAMES J. TOULOUMES, JR., FROSO I. TOULOUMES, CONSTANTINE G. J.
TOULOUMES, JAMES J. TOULOUMES, Ill, and JFK-T GROUP, INC.
YOU ARE HEREBY NOTIFIED that Sydney D. Caplan, Plaintiff, has commenced
an action against you.
Curt Long, Pmthon(3~r~r~
~' ~ (Deputy)
Seal of the Court
tRUE COPy FROM RECORD
In Teetlmony whereof, I here unto set my
and the seal ot said Court at Carl~, Pa.
SHERIFF'S RETURN - REGULAR
CASE NO: 2001-03215 P
COMMONWEALTH OF PENNSYLVANIA:
COUNTY OF CUMBERLAND
CAPLAN SYDNEY D
VS
TOULOUMES JAMES J JR ET AL
RICHARD SMITH Sheriff or Deputy Sheriff of
Cumberland County, Pennsylvania, who being duly sworn according to law,
says, the within WRIT OF SUMMONS was served upon
TOULOUMES JAMES J JR the
DEFENDANT , at 2009:00 HOURS, on the 8th day of June , 2001
at 3 W PINE ST
MT HOLLY SPRINGS, PA 17065 by handing to
JAMES J TOULOUMES JR
a true and attested copy of WRIT OF SUMMONS together with
and at the same time directing His attention to the contents thereof.
Sheriff's Costs: So Answers:
Docketing 18.00
Service 8.68
Affidavit .00
Surcharge 10.00 R. Thomas Kline
.00
36.68 07/06/2001
MCNEES WALLAC~TK
Sworn and Subscribed to before By:
me__this /3T~ day of / Deputy Sheriff
~.]~ ~; A.D.
~ Pr~honogar~
SHERIFF'S RETURN - REGULAR
CkSE NO: 2001-03215 P
COMMONWEALTH OF PENNSYLVANIA:
COUNTY OF CUMBERLAND
CAPLAN SYDNEY D
VS
TOULOUMES JAMES J JR ET AL
CPL MICHAEL BARRICK Sheriff or Deputy Sheriff of
Cumberland County, Pennsylvania, who being duly sworn according to law,
says, the within WRIT OF SUMMONS was served upon
TOULOUMES FROSO I the
DEFENDANT , at 1815:00 HOURS, on the 31st day of May , 2001
at 451 N 21ST ST
CAMP HILL, PA 17011 by handing to
a true and attested copy of WRIT OF SUMMONS together with
and at the same time directing Her attention to the contents thereof.
Sheriff's Costs: So Answers:
Docket ing 6.00 ~:.~ ~- ,...~ ~.
Service 9.30
Affidavit .00 ...
Surcharge 10.00 R. Thomas Kline
.00
25.30 07/06/2001
MCNEES WALLACE & NURICK
Sworn and Subscribed to before By: ~~(~~
me this /3~'~ day of
'
/ t Prot honor ary'
SHERIFF'S RETURN - REGULAR
£
CASE NO: 2001-03215 P
COMMONWEALTH OF PENNSYLVANIA:
COUNTY OF CUMBERLAND
CAPLAN SYDNEY D
VS
TOULOUMES JAMES J JR ET AL
RICHARD SMITH Sheriff or Deputy Sheriff of
Cumberland County, Pennsylvania, who being duly sworn according to law,
says, the within WRIT OF SUMMONS was served upon
TOULOUMES CONSTANTINE G J the
DEFENDANT , at 2009:00 HOURS, on the 8th day of June 2001
at 3 W PINE ST
MT HOLLY SPRINGS, PA 17065 by handing to
CONSTANTINE TOULOUMES
a true and attested copy of WRIT OF SUMMONS together with
and at the same time directing His attention to the contents thereof.
Sheriff's Costs: So Answers:
Docketing 6.00
Affidavit .00
Surcharge 10.00 R. Thomas Kline
.00
16.00 07/06/2001
Sworn and Subscribed to before By:
me this ~ day of
~r6fhonotary
SHERIFF'S RETURN - REGULAR
C~SE NO: 2001-03215 P
COMMONWEALTH OF PENNSYLVANIA:
COUNTY OF CUMBERI2kND
CAPLAN SYDNEY D
VS
TOULOUMES JAMES J JR ET AL
CPL MICHAEL BARRICK Sheriff or Deputy Sheriff of
Cumberland County, Pennsylvania, who being duly sworn according to law,
says, the within WRIT OF SUMMONS was served upon
JFK-T GROUP INC the
DEFENDANT , at 1815:00 HOURS, on the 31st day of May , 2001
at C/O KOSTA'S RESTAUR3tNT 451 N 21ST ST
CAMP HILL, PA 17011 by handing to
FROSO TOULOUMES
a true and attested copy of WRIT OF SUMMONS together with
and at the same time directing Her attention to the contents thereof.
Sheriff's Costs: So Answers:
Docketing 6.00
Service .00
Affidavit .00 - '
Surcharge 10.00 R. Thomas Kline
.00
16.00 07/06/2001
MCNEES WALLACE & NURICK
Sworn and Subscribed to before By:
me this /]~ day of ~ Deputy Sheriff
~*u / A.D.
tP~othohotary . , /
In'The Court of Common Pleas of Cumberland County, Pennsylvania
Sydney D. Caplan
VS.
J~nes J. Toulo~es Jr. etal
SERVE: James J. Toulo~es III N0. 2001 3215 civil
Now, 5/29/01 . , I, SHERIFF OF CUMBERLAND COUNTY, PA, do
hereby deputize the Sheriffof Dauphin County to execute this Writ, this
deputation being made at the request and risk of the Plaintiff.
Sheriff of Cumberland County., PA
Affidavit of Service
Now, ,20 , at o'clock__ M. served the
within
upon
by handing to
a copy of the original
and made known to the contents thereof.
So aI1swers,
Sheriff of County, PA
COSTS
Sworn and subscribed before SERVICE $
me this day of ,20 MILEAGE
AFFIDAVIT
$.
Man' Jane Snyder ~;k~.~ ~.~ ,,. J Daniel Basile
Reai Estate Delmty Chief Deputy
William T. Tully ~ ~ Michael W. Rinehart
Solicitor Assistant Chief Deputy
Dauphin County
Harrisburg, Pennsylvania 17101
ph: (717) 255-2660 tax: (717) 255-2889
Jack Lotwick
Sheriff
Commonwealth of Pennsylvania : CAPLAN SYDNEY D
v$
CountyofDauphin : TOULOUMES JAMES J III
Sheriff's Return
No. 1535-T - -2001
OTHER COUNTY NO. 2001-3215
I, Jack Lotwick, Sheriff of the County of Dauphin, State of
Pennsylvania, do hereby certify and return, that I made diligent
search and inquiry for TOULOUMES JAMES J III
the DEFENDANT named in the within SUMMONS/PRAECIPE/INTER/REQ FOR PROD DOC
and that I am unable to find him/her in the County of Dauphin, and
therefore return same NOT FOL~qD, June 29, 2001
NEED A BETTER ADDRESS FOR DEFENDANT. NUMEROUS CARDS WERE LEFT AT RESIDENCE
NO RESPONSE. A NEIGHBOR SAYS A COUPLE LIVES AT 272 SUE DR., HU~94ELSTOWN.
EXPIRED 6/25/01.
Sworn and subscribed to So Answers,
before me this 29T. dayf~JUN~, 2OOl~ ~/~
pRO &' [ ~)~ Sheriff of Dauphin County, Pa.
THONOTARY By
Deputy Sheriff
Sheriff's Costs: $29.25 PD 06/07/200i
RCPT NO 150737
SHERIFF'S RETURN - OUT OF COUNTY
C~SE NO: 2001-03215 P
COMMONWEALTH OF PENNSYLVANIA:
COUNTY OF CUMBERLAND
CAPI~ SYDNEY D
VS
TOULOUMES JAMES J JR ET AL
R. Thomas Kline , Sheriff or Deputy Sheriff who being
duly sworn according to law, says, that he made a diligent search and
and inquiry for the within named DEFENDANT to wit:
TOULOUMES JAMES J III
but was unable to locate Him in his bailiwick. He therefore
deputized the sheriff of DAUPHIN County, Pennsylvania, to
serve the within WRIT OF SUMMONS
On July 6th , 2001 , this office was in receipt of the
attached return from DAUPHIN
Sheriff's Costs: So~j
Docketing 6.00
Out of County 9.00
Surcharge 10.00 R. ~
Dep Dauphin Co 29.25 Sheriff of Cumberland County
.00
54.25
07/06/2001
MCNEES WALLACE & NURICK
Sworn and subscribed to before me
/3 ~ day of~
this
~-~ ] A.D.
. J'
SYDNEY D. CAPLAN, IN THE COURT OF COMMON PLEAS OF
Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA
v. NO. 01-3215 CIVIL TERM
JAMES J. TOULOUMES, JR.,
FROSO I. TOULOUMES,
CONSTANTINE G. J. TOULOUMES,
JAMES J. TOULOUMES, III, and
JFK-T GROUP, INC.,
PRAECIPE FOR ENTRY OF APPEARANCE
TO: CURT LONG, PROTHONOTARY
Please enter my appearance in the above captioned case as co-counsel for
Plaintiff Sydney D. Caplan. James P. DeAngelo, Esquire, of McNees, Wallace & Nurick
continues his appearance for Plaintiff.
Edward W. Rothman
Supreme Court I.D. 7244
1435 Appletree Road
Harrisburg, PA 17110
717-236-6687
Attorney for Plaintiff
Date: July 12, 2001
SYDNEY D. CAPLAN, IN THE COURT OF COMMON PLEAS OF
Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA
v. NO. 01-3215 CIVIL TERM
JAMES J. TOULOUMES, JR.,
FROSO I. TOULOUMES,
CONSTANTINE G. J. TOULOUMES,
JAMES J. TOULOUMES, Ill, and
JFK-T GROUP, INC.,
PRAECIPE TO REISSUE WRIT OF SUMMONS
TO THE PROTHONOTARY:
PLEASE reissue the attached Writ of Summons for service upon Defendant
James J. Touloumes, Ill. Attorney Robert L. Knupp, 407 N. Front Street, Harrisburg,
has agreed to accept service on behalf of Defendant James J. Touloumes, Ill.
McNEES WALLACE & NURICK LLC
By ~.
100 Pine Street,
P.O. Box 1166
Harrisburg, PA 17108-1166
717-232-8000
Attorneys for Plaintiff
Date: July 30, 2001
SYDNEY D. CAPLAN, IN THE COURT OF COMMON PLEAS OF
Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA
v. NO. 01-3215 CIVIL TERM
JAMES J. TOULOUMES, JR.,
FROSO I. TOULOUMES,
CONSTANTINE G. J. TOULOUMES,
JAMES J. TOULOUMES, Ill, and
JFK-T GROUP, INC.,
ACCEPTANCE OF SERVICE
accept service of the Writ of Summons on behalf of Defendant James J.
Touloumes, III, and certify that I am authorized to do so.
Dated: ~
Knupp'~rKodak~ l~:~a, ~)c._
407 North Front Street I
P. O. Box 11848
Harrisburg, PA 17108-1848
(717) 238-7151
SYDNEY D. CAPLAN, IN THE COURT OF COMMON PLEAS OF
Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA
· v. NO. 01-32t 5 CIVIL TERM
- JAMES J. TOULOUMES, JR,, c3 c:, ~
EFFRONSINI I. TOULOUMES ~--'~' .-=.'- -~'
~a/k/a FROSO I. TOULOUMES, JURY TRIAL DEMANDED ~ ~I~?
CONSTANTINEG. J. TOULOUMES, ~ ~...~.~.~,~
JAMES J. TOULOUMES, III, and
JFK-T (3ROUP, INC., --o '-:,~
COMPLAINT ~'- ~
The Pa~ss
t. Plaintiff, Sydney D. Ceplan, le an adult individual residing at 407B
Greystone Drive, Harrisburg, Pennsylvania.
2. Defendants James J. Touloumes, Jr. and Effmn$1nl I. Touloumes a/kJa
Froso I, Touloumes are husband and wife and are adult Individuals residing at 328 West
Old York Road, South Middleton Township, Cumberland County, Pennsylvania.
3. Defendant Constantine (3. J. Touloumee is an adult individual residing at 3
West Pine StreW, Mount Holly Springs, Cumbertend County, Pennsylvania.
4. Defendant James J. Touloumes, III Is an adult Individual believed to reside
at 272 Sue Drive, Hummeistown, Dauphin County, Pennsylvania.
5. James J. Touloumes, Jr. and Effronalni I. Touloumes aJPJa Froso 1.
Touloumes are the parents of Constantine (3. J. Touloumes and James J. Touloumes,
II1.
6. Defendant JFK-T Group, Inc. ("JFK-'F') Is a Pennsylvania corporation
d/b/e Kosta'e, a restaurant with its primary place of business In East Pennsboro
Township, Cumberland County, Pennsylvania and having a street address of 451 North
2191 Street, Camp Hill, PA 17011 (the "Real Property").
7. Upon information and belief, the individual Touloumeaea are all the
officers, directors, and shareholders of JFK-T, each owning a 25% interest in JFK-T.
8. The indlvidual Touloumeses are the owners of the Real Property on which
Kosta's is located, and lease the Real Property to JFK-T.
Tho Lo~ne
9. On various occasions beginning in 1995, the indivlduei Touloumeses
approached Plaintiff about advancing w~rking capital for Kosta's and otherwise helping
with financing for Kosta's,
10. At Defendants' request, Plaintiff provided funding to JFK-T and the
individual Touloumeses as follows:
a. Between July 17, 1996 and June 2, 1999, Plaintiff provided cash
loans totaling $307,250.00, as listed in Exhibit A attached hereto and
incorporated herein;
b. Since October 10, 1995, Plaintiff has made, and ~ontinues to make,
interest payments on Loan No. 101-875-00094t 7 from Mellon Bank; as of
January 10, 2001, said interest payments, which are con'~lnuing to accrue
monthly, totaled $21,090.41, as listed on Exhibit B attached hereto and
incorporated herein;
c. Pursuant to a Guaranty Agreement and a Pledge Agreement dated
August 28, 1995, Plaintiff guaranteed $300,000 of a mo~gage note dated August
28, 1995, owed by Defendant. to Commeme Bank, as dernone~.,.;.=d by Exhibits
2
g'~ 9~'OW WN]~IWI ~ ~t~IO~ dct~N>~ W~:~ 2~'~'~W
C (the Guaranty Agreement), D (the Pledge Agreement), and E (the mortgage
note) attached hereto and incorporated herein;
d. On or about June 26, 1998, Plaintiff posted interest-bearing
account no. 410160207 at Commerce Bank as an overdraft checking
protection/cash reserve account for Defendants' benefit under their loan no.
-: 510021454, as amended, as shown on Exhibit F attached hereto and
incorporated herein; and to date, Defendants have drawn approximately $25,000
on this account;
e. On or about July 22, ~998, Plaintiff substituted himself for the
Defendants as the primary obligor to Commerce Bank. under apdor line of credit
!. lo'an-to Defendants on which Plaintiff had pr6~/iousl~j been a guarantor based on
. 4: _ ?a ~edge of'securities; the curre-r~t loan, No. 277~95-;sh°Wn on'Exhibit 6 .
':' attacl~d hereto and ncorporat~d herein,'~-s in the pdnci~)-_a'l-amount of ~-
! - - ~249,406.97, Which irfcludes more tha~ $143;630.70 of additiOnal advances
...... made byCommerce'tODefendants subsequent to July 22, 1998; some of which ~:~ .......
was deposited' into Kosta's general operating accounts and some of which was
used to make payments on the mortgage to Commerce Bank for the Real
Property on which Kosta's is located, which Real Property is owned by the
~ individual Touloumeses and on which mortgage the mortgagors and.primary
oblig~rs are the individual Touloumeses;
f. Since February 4, 1999, Plaintiff has made, and continues to make.
interest payments on Loan No. 2776595 from Commerce Bank; as of November
6, 2001 said interest payments, which are continuing to accrue monthly, totaled
$72,252,69, as listed on Exhibit H attached hereto and incorporated herein.
11. All of ~e above referenced advances and Icons were made et the request
of the individual Touloumeses,
12. On various dates, Defendants tendered checks to Plaintiff aa evidence of
part of their indebtedness, requesting that Plaintiff hold the checks pending instru~ons
from Defendants to deposit them for collection.
13. When Defendants tendered the a~oremangoned checks, ff~ey advised
Plaintiff that the chec.~s were not prese~y "good," i.e,, Defendants did not then have
suffic.~ent funds to cover the checks, but that they would advise Plaintiff when they had
suff~lent funds to cover the checks; upon information and belief, the checks have never
b~n "good."
14. Defendants have repeatedly acknowledged their indebtedness and made
promises to Plaintiff to begin making payments, but no payments have been made.
15. Repayment of all amounts loaned is presently due and owing.
16, Plaintiff has demanded repayment of the loans from Defendants, but
Defendants have failed or refused t~ repay me amounts owed.
Piemina the Corporate Veil
17. JFK-T is a sham corporation which is merely a fagade for the operations of
its shareholders, the Individual Touloumesse.
18. JFK-T hoe bean, since Ils inception, grossly under~apitaJIzed. Kosta's has
operated with virtually no working capital and ~ working checking account has been
chronically substantially overdrawn, necasai~ting the bon'owing of to pay operating
4
MAR,~.~E)~ ~:~8PM KMUPP KO'i~K & IMBLUM MO,~57 P.5
expenses; on multiple occasions it was unable to meet its payroll from its payroll
account,
1@. JFK-T has not paid dividends in the regular and ordinary course of
business; rather, JFK-T simply advances funds to the Individual Touloumeses on
demand, without regard to (i) whether JFK-T Is solvent, (ii) whether the advances are a
proper use of corporate funds, and (ill) whether the advances reflect the share interests
of the shareholders.
20, JFK-T has failed to maintain proper corporate records.
21. The officers and directors of JFK-T do not ac~ally function.
22, One or more of the shareholders have used assets of the corporation for
personal interests or expenses, including, but not limited to'.
a, Payment of a student loan',
b. Withdrawing money Tram the corporation for personal use;
c. Channeling funds ben'owed from Plaintiff by drawing on Plaintiff's
Commerce Bank line of credit No. 2776695, to pay on ~he Commerce Bank
mortgage owed by the individual shareholders;
d. Paying down the shareholders' mortgage with corporate funds,
while the corporation was not paying its own debts;
e. Causing the corporation to advance money to James J. Touloumes,
Jr. d/bis T. Jimmy's Place for use in another restaurant solely owned by him;
f, Making payments f~om Kosta's operating account to or for T.
Jimmy's Place.
5
23, One or more of the shareholders have commingled corporate and
personal funds and affalm by, inter s/ia:
s. Writing corporate checks to themselves for cash;
b. Obtaining a Commerce Bank loan in their indMdual names for use
by JFK-T in purchasing the fixtures and equipment, leasehold improvements,
liquor license, and Inventory of the restaurant which became Kosta's (formerly
Casa Rillo);
c. Channeling funds borrowed from Plaintiff by drawing on Plaintiff's
Commerce Bank line of credit No. 2776595, both to make deposits in Kosta's
general operating account and to pay on the Commerce Bank mortgage owed by
the Individual shareholders.
24. Because the corporation Is merely the alter ego of the sharaholdera, the
individual shareholdem are personally, jointly and severally liable for the debts of JFK-T,
Count I - Breach of Contract
25. The averments of paragraphs 1-24 ara incorporated herein by reference.
26. Defendants entered into a binding oral agreement under which Plaintiff
provided funds to them as described above, and they agreed to repay aII amounts
loaned.
27, Defendants ~urmntly are Jointly and severally indel~ed to Plalr~[il~ in the
amount of $675,000.85 plus interest.
WHEREFORE, Plaintiff' demands judgment against Defendants, jointly and
severally, in the amount of $675,000.85 plus interest, costs of suit, and such other and
~rther relief as me Court deems Just.
6
Z'ct 9~'0~ ~Fr'lft~I ~ )tb~OH c~ctq~qH ~cta~:I
Count II - Promissory Estoa~el
28. The averments of paragraphs t-24 and 27 are incerp(3rated herein by
reference.
29. Defendants requested loans from Plaintiff and promised repayment of
such loans, which promises were intended t~, and did, induce Plaintiff to make the loans
to hls flnanolal detriment.
30, Defendants accepted the loans provided by Plaintiff.
31. Defendants acknowledged their debt to Plaintiff.
32. Defendants are estopped from denying their debt to Plaintiff.
WHEREFORE, Plaintiff demands judgment against Defendants, join'dy and
severally, In the amount of $675,000.85 plus Interest, costs of suit, and. such other and
further relief as the Cour~ deems just.
Count III - Unluat Enrichment
33. The averments of paragraphs 1-24 and 27 are incorporated herein by
reference.
34. Defendants received substantial monetary benefits fi'om Plaintiff.
35. Plai~[i~ provided financial benefits to Defendants with ~e expectation of
being repaid, and Defendants were aware of Plaintiff's expectation of repayment.
36. Defendants will be unjustly enriched if they am not required to repay their
debt to Plaintiff.
7
WHEREFORE, Plaintiff demands judgment against Defendants, jointt¥ and
severally, in the amount of $675,000.85 plus interest, costs of suit, and such other and
further relief as the Court deems just.
MCNEE$ WALLACE & NURICK LLC
Supreme Court i.D. (]2377
Debra P. Fourlas
Supreme Court I.D. 62047
100 Pine Street
P.O. Box 1166
Harrisburg, PA 17108-1t66
717-232-8000
Attorneys for Plaintiff
Date: November/~,2001
8
~¢'NE~$,~LL~CE,NUDZCK2 ID:?LT-2~7-D~O0 NO~ Og'O1 ~;SS Na.OZ2 P.02
5ubJe~ to the penaltJee af 18 P~, ¢.$,A, ~4904, ml~lng tO unsworn
to eu~oritie~, I h~r~b¥ cer~y tha~ I am · petty to this ~ction ~nd that the fsu'L~ set forth
in the foregoing document are true and correct to the b~ Of my
ai~d befief.
0I 'd 9~'ON wn-i~[WI ~ ]H~.~CO>t ddl"iN)~ Wc:~P~:I
SYDNEY D. CAPLAN, : IN THE COURT OF COMMON PLEAS
Plaintiff : CUMBERLAND COUNTY, PENNSYLVANIA
v. : NO. 01-3215 CIVIL TERM
:
JAMES J. TOULOUMES, JR., :
EFFRONSINI I. TOULOUMES :
a/k/a FROSO I. TOULOUMES, :
CONSTANTINE G.J. TOULOUMES, : JURY TRIAL DEMANDED
JAMES J. TOULOUMES, Ill and :
JFK-T GROUP, INC., : ~_:,~..
~c- ~ :~::~
TO THE PROTHONOTARY
COURT OF COMMON PLUS
CUMBER~ND COUNt, PENNSYLVANIA
SUGGESTION OF BANKRUPTCY
Please be advised that JFK-T Group, Inc. filed for protection under Chapter
of the United States Bankruptcy Code in the United States Bankruptcy Court for the
Middle District of Pennsylvania to No. 1-02-00446 on January 29, 2002.
Respectfully submitted,
Knupp, Kodak & Imblum, P.C.
PO Box 11848
407 North Front Street
Harrisburg, PA 17108
(717) 238-7151
CERTIFICATE OF SERVICF
I hereby cer'dfy that on this the .~r' day of-~,,,,~.,¥, 2002, I placed in the
United States Mail, postage prepaid the within document to the following:
JAMES P. DeANGELO, ESQUIRE
MCNEES, WALLACE & NURICK, LLC
PO BOX 1'166
HARRISBURG, PA '17108-1166
'~'~- Robert L. Knupp v
SYDNEY D. CAPLAN, IN THE COURT OF COMMON PLEAS OF
Plaintiff : CUMBERLAND COUNTY, PENNSYLVANIA
:
v. : CIVIL ACTION - LAW
:
JAMES J. TOULOUMES,:.
JR., EFFRONSINI I. :
TOULOUMES ~</a :
FROSO I. TOULOUMES,:
CONSTANTINE GJ. :
TOULOUMES, JAMES J.:
TOULOUMES, III, and :
JFK-T GROUP, INC., :
Defendants : NO. 0 I-32 ! 5 CIVIL TERM
1N RE: DEFENDANTS' PRELIMINARY OBJECTIONS
TO PLAINTIFF'S COMPLAINT
BEFORE HOFFER, P.J., OLER and GUIDO, JI.
ORDER OF COURT
AND NOW, this 1~t day of April, 2002, upon consideration of Defendants'
preliminary objections to Plaintiff's complaint, and it appearing that by order of court
dated March 4, 2002, the Honorable Robert J. Woodside authorized the continued
prosecution of the present action by Plaintiff against Defendant JFK-T ~roup, Inc.,
debtor in a bankruptcy proceeding at No. 1-02-00446 RJW, United States Bankruptcy
Court for the Middle District of Pennsylvania, and following oral argument held on
March 27, 2002, the preliminary objections are denied, and Defendants are granted
twenty days from the date of this order in which to file answers to Plaintiff's complaint.
BY THE COURT,
-Wesley Q~lr., Jl~'~
James P. DeAngelo, Esq.
Debra P. Fourlas, Esq.
100 Pine Street
P.O. Box 1166
Harrisburg, PA 17108-1166
Attorneys for Plaintiff
Robert L. Knupp, Esq.
407 North Front Street
P.O. Box 11848
Harrisburg, PA 17108
Attorney for Defendants
2rc
SYDNEY D. CAPLAN IN THE COURT OF COMMON PLEAS
Plaintiff CUMBERLAND COUNTY,
PENNSYLVANIA
vs. NO. 01-3215 CIVIL TERSe.:.. ~r,, "
JAMES J. TOULOUMES, JR., ET AL
Defendants ~-"
PRAECIPE TO ENTER APPEARANCE
TO THE PKOTHONOTAKY:
Enter our appearance on behatf of Defendants, JAMES J. TOULOUMES, JK. and
EFFKONSINI TOULOUMES a/k/a FOKOSO I. TOULOUMES in the above matter and serve all
papers upon us at the address listed below. ..
Jacques H. Geisenberger, Jr., Esq.
GEISENBEKGER & COOPEK, P.C.
Lower Level - 45 East Orange Street
Lancaster, PA 17602-2846
Dated: April 4, 2002 GEISE~ K~ER & COOPER, P.C.
t~ imey for Defendant(s)
/;J,'A~ ~IES J. TOULOUMES, JR. and --
VEFFRONSINI I. TOULOUMES
FOROSO I. TOULOUMES
Lower Level, 45 East Orange Street
Lancaster, PA 17602-2846
(717) 397-3500
I.D. No. 06947
The appearance of GEISENBERGER & COOPER, P.C. entered for JAMES J. TOULOUMES,
JR. and EFFRONSINI I. TOULOUMES a/k/a F/~OROSO L TO,_,ULOU~F~S as above directed.
Dated: April _~, 2002
Prothonotary
2002~65LET/2
SYDNEY D. CAPLAN ?N THE COURT OF COMMON PLEAS
Plaintiff CUMBERLAND COUNTY,
PENNSYLVANIA
vs. NO. 01-3215 CIVIL TER,Vr-~ ,=:, :
JAMES J. TOULOUMES, JR., ET AL ~:: ,z: ?
Defendants :':J~ -:- . 5
PRAECIPE SUGGESTING BANKRUPTCY :"
OF DEFENDANT JAMES J. TOULOUMES, JR. -< tz -<
TO THE PROTHONOTARY:
Defendant, James J. Touloumes, Jr., one oft. he Defendants in the above Case filed for
relief under Chapter 13 of the United States Bankruptcy Code on April 3, 2002 with the United
States Bankruptcy Court for the Middle District of Permsytvania, Case No.1-02-01793. A c8py of
the Petition is attached. Defendant suggests that this filing imposes a Stay of any further
proceedings in the above Case under 11 U.S.C.A.§362(a)(I).
Dated: April 4, 2002 GEISE%ER & COOPER, P.C.
By: "'-pi" \ . ~ ~ '--""
Jaca~s HiOe~er, Jr.
Art4~eY for Defendant(s)
JA~J~S J. TOULOUMES, JR.. ,.nd
EFI~ONSINI I. TOULOUNIES a/k/a
FOt~OSO I. TOULOUMES
Lower Level, 45 East Orange Street
Lancaster, PA 17602-2846
(717) 397-3500
I.D. No. 06947
Touloume$, Jr., James J. ~d3~ T. J~y's
All OIher Names used by Ihe Oebtor in lhe last 5 years All Olher Names used by ~he Joint Oebtor ~n Ihe last ~ years
328 W. Old York Road
SAME
l'Og 0t nn
5 W. Pine S~ree~
Mt. HoLly Spring PA 17065
Venue (Ch~k any applicable ~x~
~ Ind~wdua[(s) ~ Ralkoa~ the Petition is Filed (Check one ~x)
~ Cor~rahon ~ S~ockbroker ~ Chapter? ~ Chapter 11 ~ Chapter
~ Padnersh~p ~ Commodity Broker ~ Chapter 9 ~ Chapter 1~
~ Other ~ ~ec ~4. Case ancllary to ~orelgn proceed~n~
Filing Fee (Check one
~ Consumer, Non-Business ~ Business
~ Full Filing Fee attached
~1 U S C ~ I ta~(e) (Optional)~ Rule ~6[~ See O/6c~al Form No 3
E s:,ma~e~ ~sse~s
~ ~ o o o o n o
Volu~qtary Petition Name ol Deb(or(s): '-' FORM 81. Pt -e 2
(This paqe must De completed and filed m eve,S, case)
L~at~on Where F{I~: Ca~ Numbef~ Da~e
District ..............................~ Relationship: Judge:
Signature(s} of Debtor(s} (l~d~viduaUJo~t) Signature o~ Deb(of (Corpo~a~ionlPa~nersh~p)
declare un,er penally of per~u~ tha~ the information provid~ in this I dec,are udder penalty ol ~efju~ ~ha~ the ~nforma~ion provided ~n this
under chapter 7
~ ) ,~ ~gnat~re of Attorne~ .
~ Signa[ure of Non-Attorney Petition Preparer
X - ~ -,] / ~. ~ . I ce~ that I am a bankruptcy petition preparer as de,ned in ~ 1 U.S.C.
~ ,~,.o,?~.e,,o~oeoto,(~) ~3 / provid~ the debtor with a copy ofth~s document.~ 1,0. that I prepared this d~ument ~or compensation, and that, have
/ ~ :~&sl H. Geise~erqer Jr. 06947
~ ~ ~IS~ER~R ~ COOPER~ P.C.
Laacaster PA 17602-2846
(717/ 397-3500
X
Curtis R. Long
Prothonotary
Renee K. Simpson
Dcputy Prolh,'m(,ta~ v
John E. Slikc
Office of t le rot onotarp
Cumberlanb Cotmtp
Court of Common Pleas
Cumberland County, Pennsy~anbl,
Docket No. ,- .... iII
Please acknowledge receipt of this ease by signing and dating this
document. Please send this back to:
PROTHONOTARy OFFICE
CUMBERLAND COUNTY COURTHOUSE
ONE COURTHOUSE SQUARE
CARLISLE, PA 17013
Attn: Becky
Record received:
Date:~.2~
(signa~-
One Courthouse Square · Carlisle, Pennsylvania 17013 · (717) 240-6195 . Fax (717) 240-6573