HomeMy WebLinkAbout02-3552ARTHUR A. KUSIC and IN THE COURT OF COMMON PLEAS
STEVEN C. KUSIC, OF CUMBERLAND COUNTY, PENNSYLVANIA
Plaintiffs
V.
No.: Oa_ 355
THOMAS J. FLYNN,
KEVIN V. ANDERSON and : JGP -EQUITY
LORI INVESTORS, INC.,
Defendants
Filed on behalf of Arthur A. Kusic
and Steven C. Kusic, Plaintiffs
Counsel of Record for Plaintiffs:
Gary L. Rothschild, Esquire
Sup. Ct. I.D. No. 62041
The Law offices of Gary L. Rothschild
2215 Forest Hills Drive, Suite 35
Harrisburg, PA 17112
(717) 540-3510
ARTHUR A. KUSIC and
STEVEN C. KUSIC,
Plaintiffs
V.
THOMAS J. FLYNN,
KEVIN V. ANDERSON and
LORI INVESTORS, INC.,
Defendants
IN THE COURT OF COMMON PLEAS
OF CUMBERLAND COUNTY, PENNSYLVANIA
No.: 0,2 - 3 ".)-
CIVIL - EQUITY
COMPLAINT
AND NOW, come the Plaintiffs, Arthur A. Kusic and Steven C. Kusic, by and through
their attorney, Gary L. Rothschild, Esquire, who file the within Complaint and in support
thereof aver as follows:
Plaintiff, Arthur A. Kusic, is an adult individual who resides at 6800 Cornell
Road, Harrisburg, Dauphin County, PA 17112.
2. Plaintiff, Steven C. Kusic, is an adult individual who resides at 4386 St. Andrews
Way, Harrisburg, Dauphin County, Pennsylvania 17112.
Defendant, Thomas J. Flynn, (hereinafter referred to as "Flynn") is an adult
individual who resides at 865 Indiana Avenue, Lemoyne, Cumberland County,
Pennsylvania 17043.
4. Defendant, Kevin V. Anderson, (hereinafter referred to as "Anderson") is an
adult individual who maintains offices at 5010 East Trindle Road,
Mechanicsburg, Cumberland County, Pennsylvania 17055.
5. Defendant, Lori Investors, Inc., (hereinafter referred to as "LORI") is a
Pennsylvania corporation with its principal business office located at 5010 East
Trindle Road, Suite 203, Mechanicsburg, Cumberland County, Pennsylvania
17055.
6. On or about July 7, 2000, Plaintiffs entered into an agreement (hereinafter
referred to as "the July Agreement") with Defendants Flynn, LORI and
Anderson (a signed copy of said agreement is attached hereto as Exhibit "A" and
an unsigned copy is attached hereto as Exhibit "B", both being incorporated
herein).
The July Agreement includes, inter alia, the sale of Plaintiffs' shareholdings in
LORI to Flynn and Anderson.
8. Subsequent to the July Agreement, Anderson's interest in LORI was transferred
to a third party.
9. The July Agreement requires, inter alia, LORI, Flynn and Anderson to cause the
release of the Plaintiffs from personal liability from debts of LORI owed to Mid
Penn Mortgage, Keystone Financial Bank, N.A., Commerce Bank and Legacy
Bank.
10. The July Agreement provides that "time is of the essence" for the release as set
forth in the foregoing paragraph 9 of this Complaint, as well as all other
obligations under the July Agreement.
11. Keystone Financial Bank, N.A., referenced in paragraph 9 above, was acquired
by M & T Bank subsequent to the date of the July Agreement.
12. On or about September 25, 2000, Plaintiffs herein, Flynn and LORI entered into
a second agreement, entitled "Addendum" (hereinafter referred to as the
"September Addendum") (a signed copy of which is attached hereto as Exhibit
"C" and incorporated herein).
4
13. The September Addendum, inter alia, as it relates to Anderson lacks
consideration.
14. The September Addendum purports to release Anderson from his obligations
under the July Agreement.
15. The purported release, described in paragraph 14 above, is a nullity by reason of
the failure of consideration as set forth in paragraph 13 above.
16. Plaintiffs have not been released from personal liability from the demand note
owed by LORI to M & T Bank (formerly Keystone Financial Bank, N.A).
COUNTI
BREACH OF CONTRACT-THOMAS J. FLYNN
17. Paragraphs one (1) through sixteen (16) of Plaintiffs' Complaint are incorporated
by reference as if fully set forth herein.
18. The July Agreement and September Addendum required Defendant Flynn to
release Plaintiffs from personal liability from the demand note owed by LORI to
M & T Bank (formerly Keystone Financial Bank, N.A).
19. The Plaintiffs have not been released from personal liability from the demand
note (hereinafter referred to as the "demand note") owed by LORI to M & T
Bank (formerly Keystone Financial Bank, N.A).
20. The currently outstanding balance on the demand note to M & T Bank (formerly
Keystone Financial Bank, N.A) is approximately $ 800,000.00.
21. Plaintiffs have been financially constrained and damaged by Defendant Flynn's
failure to cause the release of Plaintiffs from the demand note.
22. By failing to cause the release of Plaintiffs from personal liability from the
demand note Defendant Flynn has breached his contractual duties to the
Plaintiffs.
23. Defendant Flynn is liable under the July Agreement and the September
Addendum and remains liable by his failure to cause the release of Plaintiffs
from the demand note.
24. Defendant Flynn has impaired the value of the collateral owned by LORI in that
Defendant Flynn has:
a) caused a tenant of LORI to purchase property resulting in the
relocation of the tenant from LORI's building; and
b) caused rental income at LORI's properties to be reduced.
25. Defendant Flynn has received financial gain by the selling a building to one of
LORI's tenants.
WHEREFORE, Plaintiffs, Arthur A. Kusic and Steven C. Kusic, respectfully request
this Honorable Court to enter an Order granting the following relief:
a) Requiring Defendant Flynn to cause Plaintiffs to be released from
personal liability from the demand note owed by LORI to M & T Bank
(formerly Keystone Financial Bank, N.A); or
b) Requiring Defendant Flynn to sell the assets of LORI and utilize the
proceeds to satisfy the demand note owed by LORI to M & T Bank
(formerly Keystone Financial Bank, N.A); and
C) Entering a judgment in favor of the Plaintiffs for punitive damages,
interest, attorneys fees and other costs incurred by Plaintiffs to enforce
the July Agreement and September Addendum; and
6
d) Such other relief as. the Court deems appropriate.
COUNT II
BREACH OF CONTRACT-KEVIN V. ANDERSON
26. Paragraphs one (1) through sixteen (16) of Plaintiffs' Complaint are incorporated
by reference as if fully set forth herein.
27. The July Agreement and September Addendum require Defendant Anderson to
release Plaintiffs from personal liability from the demand note owed by LORI to
M & T Bank (formerly Keystone Financial Bank, N.A).
28. The Plaintiffs have not been released from personal liability from the demand
note (hereinafter referred to as the "demand note") owed by LORI to M & T
Bank (formerly Keystone Financial Bank, N.A).
29. The currently outstanding balance on the demand note to M & T Bank (formerly
Keystone Financial Bank, N.A) is approximately $ 800,000.00.
30. Plaintiffs have been financially constrained and damaged by Defendant
Anderson's failure to cause the release of Plaintiffs from the demand note.
31. By failing to cause the release of Plaintiffs from personal liability from the
demand note Defendant Anderson has breached his contractual duties to the
Plaintiffs.
32. Defendant Anderson is liable under the July Agreement and the September
Addendum and remains liable by his failure to cause the release of Plaintiffs
from the demand note.
WHEREFORE, Plaintiffs, Arthur A. Kusic and Steven C. Kusic, respectfully request
this Honorable Court to enter an Order granting the following relief:
a) Requiring Defendant Anderson to cause Plaintiffs to be released from
personal liability from the demand note owed by LORI to M & T Bank
(formerly Keystone Financial Bank, N.A);
b) Entering a judgment in favor of the Plaintiffs for punitive damages,
interest, attorneys fees and other costs incurred by Plaintiffs to enforce
the July Agreement and September Addendum; and
C) Such other relief as the Court deems appropriate.
COUNT III
BREACH OF CONTRACT-LORI INVESTORS. INC.
33. Paragraphs one (1) through sixteen (16) of Plaintiffs' Complaint are incorporated
by reference as if fully set forth herein.
34. The July Agreement and September Addendum require the Defendant LORI to
release Plaintiffs from personal liability from the demand note owed by LORI to
M & T Bank (formerly Keystone Financial Bank, N.A).
35. The Plaintiffs have not been released from personal liability from the demand
note (hereinafter referred to as the "demand note") owed by LORI to M & T
Bank (formerly Keystone Financial Bank, N.A).
36. The currently outstanding balance on the demand note to M & T Bank (formerly
Keystone Financial Bank, N.A) is approximately $ 800,000.00.
37. Plaintiffs have been financially constrained and damaged by Defendant LORI's
failure to cause the release of Plaintiffs from the demand note.
38. By failing to cause the release of Plaintiffs from personal liability from the
demand note Defendant LORI has breached its contractual duties to the
Plaintiffs.
39. Defendant LORI is liable under the July Agreement and the September
Addendum and remains liable by its failure to cause the release of Plaintiffs from
the demand note.
WHEREFORE, Plaintiffs, Arthur A. Kusic and Steven C. Kusic, respectfully request
this Honorable Court to enter an Order granting the following relief:
a)
b)
C)
d)
Requiring Defendant LORI to cause Plaintiffs to be released from
personal liability from the demand note owed by LORI to M & T Bank
(formerly Keystone Financial Bank, N.A); or
Requiring Defendant LORI to sell the assets of LORI and utilize the
proceeds to satisfy the demand note owed by LORI to M & T Bank
(formerly Keystone Financial Bank, N.A); and
Entering a judgment in favor of the Plaintiffs for punitive damages,
interest, attorneys fees and other costs incurred by Plaintiffs to enforce
the July Agreement and September Addendum; and
Such other relief as the Court deems appropriate.
Respectfully submitted,
Date: 7'-140L
By:
G L. othschild, Esquire
Sup. Ct. I.D. No. 62041
2215 Forest Hills Drive, Suite 35
Harrisburg, PA 17112
(717) 540-3510
Counsel for Plaintiffs
07/03/2002 15:41 7172218566 G.L. ROTHSCHILD, ESO PAGE 11
VERIFICATION
1 hereby verify that 1 have read the foregoing Complaint and believe it to be true and
correct to the best of my knowledge, information, and belief. I understand that false statements,
if any, herein are made subject to the penalties of 19 Pa.C.S. Section 4904 relating to uoswom
falsification to authorities.
DATE.
Arthur A. Kushc, Esquire
07/03/2002 15:41 7172218566 G.L. ROTHSCHILD. ESO PAGE 12
VERIFICATION
I hereby verify that I have read the foregoing Comphint and believe it to be trim and
correct to the best of my knowledge, information, and belief. I understand that false statements,
if any, herein are made subject to the penalties of 18 p&C.S. Section 4904 relating to unworn
falsification to authorities.
DATE: 4 Y
EXHIBIT A
AUG-21-2001 09:328 FROM: 7177900113 TO:2368080 P:5/13
'UL FROM: FRIEDMAN & KING '172368080 TOi717l900i13 hl-OE:03 v -,
At.; RE&MENT Y
This Agreement, nade this 7 day of July, 2000, by
imong Kevin V. Anderson, an adult individual, hereinafter
rred to as "ANDERSON", 'r,-Iomas J: Flynn, --dn''adult individtal,
iij ,inafter referred to as "FLYNN", Arthur A. Kusic, Esquire. a.n
^.:'t individual, hereinafter referred to as "ARTHUR KUSIC",
t:I/en C. KUSiC, an adult individual, hereinafter referred to rr
S-EVEN KUSIC", and Lori Investors, Inc., a Pennsylvania
o-poration, hereinafter referred to as "LORI".
W I T N E S S E T H:
WHEREAS, the parties have negotiated among themselves
areement whereby ARTHUR <JSIC and STEVEN KUSIC shall sell All
.neir interest in LORI. ';c FLYNN and ANDERSON, and FLYNN shall
his interest in Crums till Realty Partnership to ARTHUR
:{.C and STEVEN KUSIC; and
WHEREAS, the part'=s have requested Friedman.& Kincl,
to prepare an agreement setting forth these previously
a ,)tiated terms in writing, Friedman & King, P:C, having not
t;:icipated in negotiation?• among the parties.
NOW THEREFORE, thu parties hereto, intending to be'
.;:lly bound, agree as follows:
1. All parti,as nre aware that the within.Agreement
--epared by Jnhn F. xinq, Esquire and the firm .0f Friedman
.xa, P.C. (hereinafter interchangeably referred to as "KING").
)repared the within D„ e•?aaenA,•.to„memot•ial•i2.er.the•teY1n5; ?..;;:,
AUG-21-2001 09:33A FROM: 7177900113
.rin_.;.•.; • FROM:FRIEDMAN & KING
TO:2368080
7172368080 TO:7i77900113
P:6/13
RaGE•'04 It
7: ,
gotiated among the parties in which negotiations t?G did not
h h .:"
icipate. KING acted only as a scrivener in prepxcing thi:
'i.:Iiin Agreement. All parties are aware that KING has in tha
represented and/or does presently represent and/or may :.n
.n: future represent APTHUF. KUSIC, STEVEN KUSIC, FLYNN, ANDERSOV,
other shareholders of LORI not named herein, Crums Mill
_•'ty Partnership, and other business ventures in which one or
01••: of the parties to the within Agreement are involved. All
."-1:ies are further aware that Richard S. Friedman, Esquire and
o?in F. King, Esquire, the .,wo named attorneys of Friedman &
p,r,,, are individually involved in business ventures with
'R"itUR KUSIC, STEVEN KUSIC, FLYNN, and ANDERSON, which venturers 1tc.
nclude LORI o- °'-I '4:11 Realty Partnership. All parties,
*:to acknowledge that t.hel requested that KING prepare the
tin Agreement, the fees .?c which are to be paid by LORI, sale.
nent of fees having been properly authorized by LORI. All
Mies are further aware teat ARTHUR KUSIC is an attorney
;:-aaised to practice law in the Commonwealth of Pennsylvania.
1•::: has advised all parti=_;o hereto that each party hereto has
.ha absolute right to be represented by separate and independent:
-.cansel of his or its choos;.ng and would be-well-advised to
..re.said separate and ii,uependent-counsel.• By executing the
r •`.1iin Agreement, all par.tit:s hereto warrant that,they have
leuujht the benefit of saparote and independent counsel of their
_hoosing or waive the right to do so, and further w '•Ve any
RUG-21-2001 09:33R FROM: 7177900113 T0:2368080 P:7/13
_i?. '•!?:'! FROM:FRIEOMAN & KING 71723690e0 ,TO:717790011 - PriSE:05
agatriut
.r flict of interest which they could otherw se'aSIdIN
-7:cr• by virtue of his preparation of the within Ag 'e. hient.
2. All parties ',?o the within Agreement,piXnowledle
1 ??f
Seligman, Friedman & Company (hereinafter ..SEIUIGMAN"), wYser;r.
n"-i in the within Agreement is set forth in paragra h'3 heruin,
>l. in the past, does presently, or may in the futd&10"Provide
I A.
. '..unting services to one or more of the parties hereto. All
;ar+.ies acknowledge that each has the absolute right to be
et):-esented by an independent accountant of his or its choosing
i.!- regard to the within i%oreement and would be well-advised to
^ ny executing.the w:thi.n Agre•ament, all parties hereto
ac::ant that they have scught the benefit of a separate and
indent accountant of -eir choo>ing or waive the right :o do
and further waive any conflict of interest which they could
wise assert against S'i.iGMAN by virtue of its determinatio-
:he purchase price for ARTHUR KUSIC's and STEVEN KUSIC's 60111
as set forth in paragraph 3 herein.
3. A. ARTHUR KUSIC and STEVEN KUSIC agree to sell
°1' of their interest in LOFI to FLYNN and ANDERSON in
:o-.:ideration for a prices to be determined by SELIGMAN in its
o(a discretion. Immediately upon receipt of this amount in ca-..h
rote as indicated below, ARTHUR KUSIC 'arid STEVEN KUSIC shall.
-io rse the certificates evidencing their ownership of LORI's
.r, and shall deliver thss, to KING, to be held in escrow by
„I IC until all conditions: of the within Agreement ario met.
AUG-21-2001 09:34A FROM: 7177900113 70:2368080 P:8/13
'UL .:: ;2 FROM: FRIEOMAN & KING 712368080 •T0:717790011? - ?Pl+'oE;f36 ;.
• x
g. ARTHUR KUSIC and STEVEN KUSIC wi accept cash
-.wY:9y,
?nll a Note made payable to ARTHUR KUSIC for Thirty-S Thousand
,000.00) Dollars, said cash and !iota amount whe ombine<l
•Iling the SELIGMAN price, for their interest. S Q Note
be for one (1) year at nine (9:) percent interst, with
+n--,rest only to be paid monthly and with balance to be paid at
n•: of the one (1) year term.
4. FLYNN agrees: to sell his interest in Crums Mill
ty Partnership (hereinafter referred to as "CRUMS MILL") to
'•R1'HUR KUSIC and STEVEN KUS(C in consideration for a price to bt
mined by SELIGMA.`; it ::':a sole discretion. FLYNN shall
?x+:ute any documents necessary to evidence his sale of said
.?.st in CRU14S MILL.
5. FLYNN and F.17CERSON agree to satisfy in full, :Pr
:e LORI to satisfy in full, the Thirty-Six Thousand
`ai;,000.00) Dollar (give: or take) debt owed by LORI to Commarc!
1:1•:. It is the intention :f the parties that the above-
:'.arenced loan be paid in lull or refinanced so as to elimina(:¢
n,: personal indebtedness of ARTHUR KUSIC and STEVEN'KUSIC
:.clitive to said loan.
6. FLYNN and ANUERSON agree that time is of the
•ince and agree to-use their best- efforts to satisfy in, full,
-1
6t ^ause LORI to satisfy in full, the One Hundred Fifty Thousand
4P
AUG-21-2001 09:34A FROM: 7177900113 TO:2368080 P:9/13
_UI_ FROM: FRIEDMAN & KING 7172368080 T0:717A 10 1143
I-so,ooo.00) Dollar (give o;r take) debt owed by LORI-to Legacy
nt. It is the intention of the parties that the > ve-
q:erenced loan be paid.in full or refinanced so as to eliminate
-vcsonal indebtedness of ARTHUR KUSIC and ST E; NJJCUSIC
?
el••tive to said loan.
7. Settlement of the cash, Note and property
'•ursements called for in ?_he within Agreement in'p,iragraphs
;:d 5 shall take place within thirty (30) days of execution C'1"
h-.. within Agreement.
S. ARTHUR KUSIC Rnd STEVEN KUSIC agree to have the
.ark Realty liLti.ng cf property owned by LORI on Trindlo
=o rl released no later than the time of settlement referenced in
:.aph 7 above.
9. LORI, FLYNN and ANDERSON shall cause ARTHUR KUSIC:
n:: STEVEN KUSIC to be released from personal liability as a
es;o t of the mid Penn mcrtg age of LORI, the demand note owed by
slit. to Keystone Financial Bank, N.A., the debt owed by LORI to
•):v-erce Bank in the amoi;nt of Thirty-Six Thousand ($36,000.30)
o.tars (give or take), and the debt owed by LORI to Legacy aaWx
in .he amount of one Hundred Fifty Thousand (5150,000.00) Dollars
a e or take) time being of the essence.
10. ARTHUR KUSIC and STEVEN KUSIC agree that any and
nil Notes issued as the resk-lt of prior capital calls in favor :•r
ai.ner ARTHUR KUSIC or STEVEN KUSIC, or both, will be satisfied
uo•?n settlement of the cash, Note and property dis sements as
RUG-21-2001 09:35R FROM: 7177900113
-LL 1.;:'a? FROM:FRIEDMAN & KING
TO:2360000
717236808 T6:71779001i3
P:10/13
e(i?ired herein, and further agree that the original Notes,
i !f.ed "satisfied", will be tendered to the maker at that tine.
11. LORI, Fl,YNN and ANDERSON shall use their,best
.r,ts to satisfy all crect±tnr clains against LORI iti'existenc(t
f the date of settlement as referred to in para 7 above.
12. LORI, FLYNN and ANDERSON shall indem 'and hold
;'.ess ARTHUR KUSIC and 5'16VEN KUSIC from the above-referenced
•.1: tanding indebtedness to Commerce Bank, Legacy Batik, Mid Perin
and Keystone Financial Bank, N.A., and from all creditor
).:_..ms against LORI.
17. All parties --knowledge that they have had thm
o:v)rtunity to fully examine the financial books and records of
and CRUMS MILL, splLc ii:.:illy including but not limited to
i . outstanding encumbrances of LORI and CRU145 MILLS for which
4,-vonal guarantees have bes,i given, and that there are no such
n%:umbrances for CRUMS MILL, and that the encumbrances set f?rt:h
'), a are the only such encumbrances for LORI.
14. Concurrent. with settlement set forth in paragrap?•
love, ARTHUR KUSIC and SIEVEN KUSIC shall resign their
::o:;itions as officers and directors of LORI.
15. All parties acknowledge that they have had full
ass to the books and records of LORI.and CRUMS MILL and that
.h.c.i have relied on their own business expertise in entering into
r within Agreement, rather than relying on any repreeehtations:
any other party hereto.
? W
1
V
RUG-21-2001 09:358 FROM: 7177900113 TO:2369oeo P:11/13
may..
FROM:FRIEDMAN 8 KING 7172368080 TO:7177?0011$:,'
16. ARTHUR KUSIC and STEVEN KUSIC warrant that they
,,an the shares of capital stock of LORI which they are conveying
.?r•ein free and clear of any liens, security interests or other
r
mhrances. ARTHUR KUS'CC and STEVEN KUSIC acknowle that
:icy are shareholders, officors and directors of LORI d have
5
knowledge of its business dealings, and they th ore waiv::
r"
.io customary corporate warranties.
17. This Agteemen: sets forth the entire understandin:i
t the parties. It shall no:: be changed or terminated orally.
•11 Lhe terms and provisions of this Agreement shall be binding
and inure to the benefi.': of and be enforceable by the
-u,?cessors and assigns of th•n parties hereto, but shall not to
yned by any party witncu: the prior consent of the other.
Agreement shall be gove-ned by and construed and enforced in
.dance with the laws of ;he Commonwealth of Pennsylvania.
18. There are no other terms, obligations;' covenarts,
ei-lesentations, statements, conditions or warranties, oral c•;.
.rwise, of any kind what.sDever, upon which any patty hereto
,.ed. Except as provided tierein, this Agreement supersedes. ary
or agreement, oral, written or otherwise, between the part.ie:
errtto, respecting their rights or obligations.
19. In the case one *or more of the provisions
r)W'ained in this Agreement: shall for any reason be held to be
n•t.lid, unenforceable, or il.l.egal, in any respect, such
:n-rilidity, unenforceability, or illegality shall not affect any
-i the other provisions hereof and this Agreement shall be
Y
w
RUG-21 -2001 09:36A FROM: 7177900113 TO:2368080 P:12/13
FROM:FRIEDMAN 8 KING 71T23G8080 • TOi7177900113 Pp°• =+,:
:oiistrued as if the invalid, unehforceable, or illegal'provision
=iii !,ever been contained her,:in.
20. No failure to exercise and no delay inercising,
:hp part of either par'_y hereto, any right, power org,privil.eg.:
^rcvnder or under any other document or instrument or
x lvered in connection to this Agreement, shall ope as a
i
:..er thereof, nor shall that exercise of any right, :ppwer or
-i:ilege hereunder or th•areiinder preclude any other or further
!Wc'Cise thereof or the exercise of any other right, power or
.r+ailege. The rights and remedies hereunder are cumulative and
^•-lusive of any rights or remedies provided by law. No
:-lification shall be eff•active unless in writing by both
is.
21. All represanL--itions, warranties and undertakings
.nis Agreement made by ti;.: parties hereto shall survive
2 _lement.
22. Each party hereto agrees, on the request of the
rr party hereto, to execu•:e, acknowledge after, or
it Itaneously with settlement, such other and further
struments and documents as either party may reasonably request
a !:ffectuate the purposes or this Agreement.
23. The parties agree that time shall be of-the
¢s!- nce in the performance of all obligations made under this
A,? .:yment.
r
.
i
RUG-21-2001 09:36A FROM: 7177900113 TO:2368080
?'JL.'. "1: FROM+FRIEDMAN 8 KIPIG 7172368080 70:7177900113
P: 13/13
Pf-?;E:11 ^ 4
,, 4rq
IN WITNESS WHEREOF. we have hereunto set our hands and
mia1s the day and year first above written.
I:ESS,
ti.. as J. Flynn, Secretary
'E: - Lori\1ori2 , aqr
LORI INVESTORS, INC.
By:
K in V. Anderson; President.
:Y'
EXHIBIT B
AGREEMENT
This Agreement, made this day of July, 2000, by
and among Kevin V. Anderson, an adult individual, hereinafter
referred to as "ANDERSON", Thomas J. Flynn, an adult individual,
hereinafter referred to as "FLYNN", Arthur A. Kusic, Esquire, an
adult individual, hereinafter referred to as "ARTHUR KUSIC",
Steven C. Kusic, an adult individual, hereinafter referred to as
"STEVEN KUSIC", and Lori Investors, Inc., a Pennsylvania
corporation, hereinafter referred to as "LORI".
W I T N E S S E T H:
WHEREAS, the parties have negotiated among themselves
an agreement whereby ARTHUR KUSIC and STEVEN KUSIC shall sell all
of their interest in LORI to FLYNN and ANDERSON, and FLYNN shall
sell his interest in Crums Mill Realty Partnership to ARTHUR
KUSIC and STEVEN KUSIC; and
WHEREAS, the parties have requested Friedman & King,
P.C. to prepare an agreement setting forth these previously
negotiated terms in writing, Friedman & King, P.C. having not
participated in negotiations among the parties.
NOW THEREFORE, the parties hereto, intending to be
legally bound, agree as follows:
1. All parties are aware that the within Agreement
was prepared by John F. King, Esquire and the firm of Friedman &
King, P.C. (hereinafter interchangeably referred to as "KING").
KING prepared the within Agreement to memorialize the terms
negotiated among the parties, in which negotiations KING did not
participate. KING acted only as a scrivener in preparing the
within Agreement. All parties are aware that KING has in the
past represented and/or does presently represent and/or may in
the future represent ARTHUR KUSIC, STEVEN KUSIC, FLYNN, ANDERSON,
LORI, other shareholders of LORI not named herein, Crums Mill
Realty Partnership, and other business ventures in which one or
more of the parties to the within Agreement are involved. All
parties are further aware that Richard S. Friedman, Esquire and
John F. King, Esquire, the two named attorneys of Friedman &
King, P.C., are individually involved in business ventures with
ARTHUR KUSIC, STEVEN KUSIC, FLYNN and ANDERSON, which ventures do
not include LORI or Crums Mill Realty Partnership. All parties
hereto acknowledge that they requested that KING prepare the
within Agreement, the fees for which are to be paid by LORI, said
payment of fees having been properly authorized by LORI. All
parties are further aware that ARTHUR KUSIC is an attorney
licensed to practice law in the Commonwealth of Pennsylvania.
KING has advised all parties hereto that each party hereto has
the absolute right to be represented by separate and independent
counsel of his or its choosing and would be well-advised to
secure said separate and independent counsel. By executing the
within Agreement, all parties hereto warrant that they have
sought the benefit of separate and independent counsel of their
choosing or waive the right to do so, and further waive any
conflict of interest which they could otherwise assert against
KING by virtue of his preparation of the within Agreement.
2. All parties to the within Agreement acknowledge
that Seligman, Friedman & Company (hereinafter "SELIGMAN"), whose
role in the within Agreement is set forth in paragraph 3 herein,
has in the past, does presently, or may in the future provide
accounting services to one or more of the parties hereto. All
parties acknowledge that each has the absolute right to be
represented by an independent accountant of his or its choosing
with regard to the within Agreement and would be well-advised to
do so. By executing the within Agreement, all parties hereto
warrant that they have sought the benefit of a separate and
independent accountant of their choosing or waive the right to do
so, and further waive any conflict of interest which they could
otherwise assert against SELIGMAN by virtue of its determination
of the purchase price for ARTHUR KUSIC's and STEVEN KUSIC's LORI
stock as set forth in paragraph 3 herein.
3. A. ARTHUR KUSIC and STEVEN KUSIC agree to sell
all of their interest in LORI to FLYNN and ANDERSON in
consideration for a price to be determined by SELIGMAN in its
sole discretion. Immediately upon receipt of this amount in cash
and Note as indicated below, ARTHUR KUSIC and STEVEN KUSIC shall
endorse the certificates evidencing their ownership of LORI's
stock and shall deliver them to KING, to be held in escrow by
KING until all conditions of the within Agreement are met.
B. ARTHUR KUSIC and STEVEN KUSIC will accept cash
and a Note made payable to ARTHUR KUSIC for Thirty-Six Thousand
($36,000.00) Dollars, said cash and Note amount when combined
equalling the SELIGMAN price, for their interest. Said Note
shall be for one (1) year at nine (9%) percent interest, with
interest only to be paid monthly and with balance to be paid at
end of the one (1) year term.
4. FLYNN agrees to sell his interest in Crums Mill
Realty Partnership (hereinafter referred to as "CRUMS MILL") to
ARTHUR KUSIC and STEVEN KUSIC in consideration for a price to be
determined by SELIGMAN in its sole discretion. FLYNN shall
execute any documents necessary to evidence his sale of said
interest in CRUMS MILL.
5. FLYNN and ANDERSON agree to satisfy in full, or
cause LORI to satisfy in full, the Thirty-Six Thousand
($36,000.00) Dollar (give or take) debt owed by LORI to Commerce
Bank. It is the intention of the parties that the above-
referenced loan be paid in full or refinanced so as to eliminate
the personal indebtedness of ARTHUR KUSIC and STEVEN KUSIC
relative to said loan.
6. FLYNN and ANDERSON agree that time is of the
essence and agree to use their best efforts to satisfy in full,
or cause LORI to satisfy in full, the one Hundred Fifty Thousand
($150,000.00) Dollar (give or take) debt owed by LORI to Legacy
Bank. It is the intention of the parties that the above-
referenced loan be paid in full or refinanced so as to eliminate
the personal indebtedness of ARTHUR KUSIC and STEVEN KUSIC
relative to said loan.
7. Settlement of the cash, Note and property
disbursements called for in the within Agreement in paragraphs 3,
4 and 5 shall take place within thirty (30) days of execution of
the within Agreement.
8. ARTHUR KUSIC and STEVEN KUSIC agree to have the
Landmark Realty listing of the property owned by LORI on Trindle
Road released no later than the time of settlement referenced in
paragraph 7 above.
9. LORI, FLYNN and ANDERSON shall cause ARTHUR KUSIC
and STEVEN KUSIC to be released from personal liability as a
result of the Mid Penn mortgage of LORI, the demand note owed by
LORI to Keystone Financial Bank, N.A., the debt owed by LORI to
Commerce Bank in the amount of Thirty-Six Thousand ($36,000.00)
Dollars (give or take), and the debt owed by LORI to Legacy Bank
in the amount of One Hundred Fifty Thousand ($150,000.00) Dollars
(give or take) time being of the essence.
10. ARTHUR KUSIC and STEVEN KUSIC agree that any and
all Notes issued as the result of prior capital calls in favor of
either ARTHUR KUSIC or STEVEN KUSIC, or both, will be satisfied
upon settlement of the cash, Note and property disbursements as
required herein, and further agree that the original Notes,
marked "satisfied", will be tendered to the maker at that time.
11. LORI, FLYNN and ANDERSON shall use their best
efforts to satisfy all creditor claims against LORI in existence
as of the date of settlement as referred to in paragraph 7 above.
12. LORI, FLYNN and ANDERSON shall indemnify and hold
harmless ARTHUR KUSIC and STEVEN KUSIC from the above-referenced
outstanding indebtedness to Commerce Bank, Legacy Bank, Mid Penn
Bank, and Keystone Financial Bank, N.A., and from all creditor
claims against LORI.
13. All parties acknowledge that they have had the
opportunity to fully examine the financial books and records of
LORI and CRUMS MILL, specifically including but not limited to
all outstanding encumbrances of LORI and CRUMS MILLS for which
personal guarantees have been given, and that there are no such
encumbrances for CRUMS MILL, and that the encumbrances set forth
above are the only such encumbrances for LORI.
14. Concurrent with settlement set forth in paragraph
6 above, ARTHUR KUSIC and STEVEN KUSIC shall resign their
positions as officers and directors of LORI.
15. All parties acknowledge that they have had full
access to the books and records of LORI and CRUMS MILL and that
they have relied on their own business expertise in entering into
the within Agreement, rather than relying on any representations
of any other party hereto.
16. ARTHUR KUSIC and STEVEN KUSIC warrant that they
own the shares of capital stock of LORI which they are conveying
herein free and clear of any liens, security interests, or other
encumbrances. ARTHUR KUSIC and STEVEN KUSIC acknowledge that
they are shareholders, officers and directors of LORI and have
full knowledge of its business dealings, and they therefore waive
the customary corporate warranties.
17. This Agreement sets forth the entire understanding
of the parties. It shall not be changed or terminated orally.
All the terms and provisions of this Agreement shall be binding
upon and inure to the benefit of and be enforceable by the
successors and assigns of the parties hereto, but shall not be
assigned by any party without the prior consent of the other.
This Agreement shall be governed by and construed and enforced in
accordance with the laws of the commonwealth of Pennsylvania.
18. There are no other terms, obligations, covenants,
representations, statements, conditions or warranties, oral or
otherwise, of any kind whatsoever, upon which any party hereto
relied. Except as provided herein, this Agreement supersedes any
prior agreement, oral, written or otherwise, between the parties
hereto, respecting their rights or obligations.
19. In the case one or more of the provisions
contained in this Agreement shall for any reason be held to be
invalid, unenforceable, or illegal, in any respect, such
invalidity, unenforceability, or illegality shall not affect any
of the other provisions hereof and this Agreement shall be
f
construed as if the invalid, unenforceable, or illegal provision
had never been contained herein.
20. No failure to exercise and no delay in exercising,
on the part of either party hereto, any right, power or privilege
hereunder or under any other document or instrument made or
delivered in connection to this Agreement, shall operate as a
waiver thereof, nor shall the exercise of any right, power or
privilege hereunder or thereunder preclude any other or further
exercise thereof or the exercise of any other right, power or
privilege. The rights and remedies hereunder are cumulative and
not exclusive of any rights or remedies provided by law. No
modification shall be effective unless in writing by both
parties.
21. All representations, warranties and undertakings
in this Agreement made by the parties hereto shall survive
settlement.
22. Each party hereto agrees, on the request of the
other party hereto, to execute, acknowledge after, or
simultaneously with settlement, such other and further
instruments and documents as either party may reasonably request
to effectuate the purposes of this Agreement.
23. The parties agree that time shall be of the
essence in the performance of all obligations made under this
Agreement.
IN WITNESS WHEREOF, we have hereunto set our hands and
seals the day and year first above written.
WITNESS:
ATTEST:
Thomas J. Flynn, Secretary
Kevin V. Anderson
Thomas J. Flynn
Arthur A. Kusic, Esquire
Steven C. Kusic
LORI INVESTORS, INC.
By:
Kevin V. Anderson, President
k/p:Lori\lori2.agr
EXHIBIT C
ADDENDUM
THIS ADDENDUM
2000, by and among
"Buyer"; Arthur A.
hereinafter collec
Investors, Inc., a
to as "Lori".
TO AGREEMENT made this 21-i,K day of September,
Thomas J. Flynn, hereinafter referred to as
Kusic, Esquire and Steven C. Kusic,
:ively referred to as "Sellers"; and Lori
Pennsylvania corporation, hereinafter referred
W I T N E S S E T H:
WHEREAS, the parties are parties to a certain Agreement
dated July , 2000, the terms of which are incorporated herein
by reference; and
WHEREAS, the parties wish to amend and add to said Agreement
while ratifying the unchanged terms thereof;
NOW THEREFORE, the parties hereto, in consideration of the
mutual covenants herein contained, agree as follows:
1. The parties acknowledge that the value of Sellers'
interest in Lori is Two Hundred Fourteen Thousand Nine Hundred
Sixty-Two Dollars and Fifty-Six Cents ($214,962.56).
2. The parties acknowledge that the value of Buyer's
interest in Crums Mill Realty Partnership is Thirty-Six Thousand
Five Hundred Seventy-Three Dollars and Thirty-Seven Cents
($36,573.37).
3. The consideration for Sellers' interest in Lori and
Buyer's interest in Crums Mill Realty Partnership shall be paid
as follows: $214,962.56 less $36,573.37, for consideration due
to Sellers from Buyer of $178,389.19.
4. The parties acknowledge that there is an outstanding
obligation from Lori to Commerce Bank in the amount of
approximately Thirty-Six Thousand ($36,000.00) Dollars, which
obligation shall be the sole responsibility of Buyer, thereby
reducing the net payment to Sellers to One Hundred Forty-Two
Thousand Three Hundred Eighty-Nine Dollars and Nineteen Cents
($142,389.19). Buyer shall cause Sellers to be released from
Sellers' personal guarantees to Commerce Bank on account of said
loan within thirty (30) days of execution of the within Addendum.
5. The net consideration of $142,389.19 shall be paid as
follows:
A. $46,589.87 shall be paid at closing of refinancing,
or within thirty (30) days, whichever is sooner, to be secured by
a judgment note without interest. Sellers agree to extend said
payment for a reasonable period of time, provided Lori is
proceeding with due diligence to obtain said refinancing.
B. The balance of $95,799.32 shall be paid in cash at
settlement on September 25, 2000.
6. All signatories hereto agree to release Kevin V.
Anderson as a party from the Agreement referenced above, and
acknowledge that said Kevin V. Anderson shall have no further
rights or responsibilities thereunder. All signatories warrant
that said Kevin V. Anderson is in agreement with said action.
All signatories hereto agree to execute now or hereafter any
documents necessary to effectuate the intention of the within
paragraph.
7. Where terms of the within Addendum contradict those of
the above-referenced Agreement, it is the intention of the
parties that the terms of the within Addendum shall prevail.
IN WITNESS WHEREOF, the parties hereto have hereunto
set their hands and seals the day and year first above written.
WITNESS:
,lf T L L Tho as J. Flynn
ATTEST:
S ? . tL
LORI INVESTORS, INC.
/z t S
a/p:lori\lori3.agr
a }
.
SHERIFF'S RETURN - REGULAR
CASE NO: 2002-03552 P
COMMONWEALTH OF PENNSYLVANIA:
COUNTY OF CUMBERLAND
KUSIC ARTHUR A ET AL
VS
FLYNN THOMAS J ET AL
BRIAN BARRICK , Sheriff or Deputy Sheriff of
Cumberland County,Pennsylvania, who being duly sworn according to law,
says, the within COMPLAINT - EQUITY was served upon
FLYNN THOMAS
the
DEFENDANT , at 1933:00 HOURS, on the 31st day of July , 2002
at 1833 RED SPRUCE LANE
MECHANICSBURG, PA 17055 by handing to
THOMAS FLYNN
a true and attested copy of COMPLAINT - EQUITY together with
and at the same time directing His attention to the contents thereof.
Sheriff's Costs:
Docketing 18.00
Service 6.90
Affidavit .00
Surcharge 10.00
.00
34.90
Sworn and Subscribed to before
me this 7 K.t day of
Z. A. D.
Prothonotary
So Answers:
R. Thomas Kline
08/05/2002
GARY L ROTHSCHI??
By: f1l
t
Deputy Sheriff
SHERIFF'S RETURN - REGULAR
CASE NO: 2002-03552 P
COMMONWEALTH OF PENNSYLVANIA:
COUNTY OF CUMBERLAND
KUSIC ARTHUR A ET AL
VS
FLYNN THOMAS
CPL. MICHAEL BARRICK , Sheriff or Deputy Sheriff of
Cumberland County,Pennsylvania, who being duly sworn according to law,
says, the within COMPLAINT - EQUITY was served upon
ANDERSON KEVIN V
the
DEFENDANT , at 1112:00 HOURS, on the 1st day of August 2002
at 5010 EAST TRINDLE ROAD
MECHANICSBURG, PA 17055 by handing to
LORI ZIMMERMAN ADMINISTRATIVE ASSISTANT
a true and attested copy of COMPLAINT - EQUITY together with
and at the same time directing Her attention to the contents thereof.
Sheriff's Costs:
Docketing 6.00
Service 8.28
Affidavit .00
Surcharge 10.00
.00
24.28
Sworn and Subscribed to before
me this -7d,_,( day of
w?,<t aC9O 2 A.D.
d? CL 7? .,ee? Ate,
prothonotary
So Answers:
R. Thomas Kline
08/05/2002
GARY S ROTHSCHILD
By:
Deputy Sheriff
SHERIFF'S RETURN - REGULAR
-CASE NO: 2002-03552 P
COMMONWEALTH OF PENNSYLVANIA:
COUNTY OF CUMBERLAND
KUSIC ARTHUR A ET AL
VS
FLYNN THOMAS J ET AL
BRIAN BARRICK , Sheriff or Deputy Sheriff of
Cumberland County,Pennsylvania, who being duly sworn according to law,
says, the within COMPLAINT - EQUITY was served upon
INVESTORS
the
DEFENDANT , at 1933:00 HOURS, on the 31st day of July 2002
at 1833 RED SPRUCE LANE
MECHANICSBURG, PA 17055 by handing to
THOMAS FLYNN
a true and attested copy of COMPLAINT - EQUITY together with
and at the same time directing His attention to the contents thereof.
Sheriff's Costs:
Docketing 6.00
Service .00
Affidavit .00
Surcharge 10.00
.00
16.00
Sworn and Subscribed to before
me this eZa- day of
A.D.
r thonotary
So Answers:
R. Thomas Kline 7
08/05/2002
GARY L ROTHSCHILD
By: /4 0(-? x &(Zl
Deputy Sheriff
ARTHUR A. KUSIC and : IN THE COURT OF COMMON PLEAS
STEVEN C. KUSIC, : OF CUMBERLAND COUNTY, PENNSYLVANIA
Plaintiffs
V.
No. 02-3552
THOMAS J. FLYNN,
KEVIN V. ANDERSON and CIVIL - EQUITY
LORI INVESTORS, INC.,
Defendants .
PRAECIPE TO MARK MATTER SATISFIED
TO THE PROTHONOTARY:
As the parties to the above-captioned action have settled their dispute, kindly mark the
above-captioned matter as settled, discontinued and satisfied, with prejudice.
Respectfully submitted,
4iz 52,063
Date
i
By: i
Gary L. othschild, Esquire
Sup. Ct. I.D. No. 62041
The Law offices of Gary L. Rothschild
2215 Forest Hills Drive, Suite 35
Harrisburg, PA 17112
(717) 540-3510
Attorney for Plaintiffs
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MAY .? 2009 G,
THE COURT OF COMMON PLEAS
SPANKEY'S AUTO SALES, IN CUMBERLAND COUNTY'
INC., plaintiff PENNSYLVANIA
No. 03-3552
V.
CARROL L. SHREVE, CIVIL ACTION - LAW
Defendant
ORDER
L oO l
upon
n!I ?,
of
AND NOW, this : 0L day
Motion to Withdraw as Counsel filed by McNees
consideration of the Wall
ce & Nurick LLC, it is hereby ORDERED that the Motion is
GRA TED. McNees Wallace & Nurick LLC is granted leave to withdraw as
r-rm sel for Plaintiff, Spankey's Auto Sales, Inc.
BY THE COURT
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tel. 00 - to/vt/S