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HomeMy WebLinkAbout94-05825 ';, ,,' " , :, ',II 'I " " , " i ," , 'Ii , , "; , , , , , " , " ," " " , , , , "', ,II ,I , , , , 'J, " ',' " l ' ~ \ :! ,,' " " '" " I 'j '" " ,", ", .;,....--,-,- , ' I. , , , . N"_""'~I(.",,,,,..j.""'\'\\""'Wlllfl'!_I.I~,'i\l..'l.L~~~._.li.\'MI"""~~VH' JOHN N. IlALLIOS and VABILIKI IlALLIOS, Plaintiff. IN THE COURT or COMMON PLEAS or CUMBIRLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW NO. 94- 5825'" CIVIL TERM v.. WAGDI AHMED ILHARAS and HAMDY ALY, individually and t/cS/b/a KEYSTONE DINER, Defendant. COIIPLJl.III'1' I'OR 0011I'...10. 01' JUDGIOII'1' 1. The Plaintiff. are John N. Mallio. and Vasiliki Mallios, hu.band and wife, who reside at 224 Heisers Lane, Carli.le, CUmberland County, Penn.ylvania. 2. Defendant Wagdi Ahmed !llharas i. an adult individual whose last known address is Conestoqa West Apartments, Apart.ent B41, 280 Stonemill Road, Lancaster, Lancas~er County, Pennsylvania 17603. Defendant Hamdy Aly i. an adult individual who.. last known address is 1428 Bradley Avenue, Apart.ent J-214, Carlisle, Cumberland County, Pennsylvania 17013. 3. Defendants Elharas and Aly trade and d~ busine.. a. ~eystone Diner, a Pennsylvania general partnership with it. principal place of busine.. at 1803 Harrisburg Pike, Carli.l.,' Cuaberland County, Pennsylvania 17013. 4. There i. attached hereto as Exhibit "A", and incorporated by reference, a certain Agreement of Sale 5, 1993, between Plaintiff. and Defendants. 5. The Agreement of Sale attached as Exhibit "A" ha. ~ been .ssigned by either Plaintiffs or Defendants. .... A --:-" ARTICLES OF ~QRBBMBNT or BALB AGREEMENT, made this ,5"& day of ;H19-/ 1993, between JOHN N. MALLIOS and VA8ILI~I MALLIOS, of 224 Heisers Lane, Carlisle, pennaylvania, hereinafter (whether singular or plural) called "SELLER", , , AND .~QDI AHMBD ZLHARA8 and HAMDY A. ALY, both of 971 Fairmont Avenue, Whitehall, Pennsylvania, 18052, hereinafter (whether singular or plural) called "BUYER." WITNESSETH: That the parties hereto, for the consideration hereinafter described, intending to be legally bound hereby, agree as follows: 1. Sale and purohase. SELLER, for the consideration hereinafter mentioned, agrees to sell and convey unto the BUYER, his heirs and assigns, and BUYER agrees to purchase and accept, all that certain tract of land with the improvements thereon erected, more particularly described pursuant to Exhibit "A," attached hereto and incorporated herein by reference thereto. SELLER, for the consideration hereinafter mentioned, agrees to sell and convey unto the BUYER, his heirs and as.i9n., and BUYER agrees to purchase and accept, all those items of fixtures, furnishings, equipment and personal property (hereinafter referred to as personal property), identified on Exhibit "B", attached hereto and incorporated herein by raf.renge thereto. 2. purcha.. Price. In consideration wheroof, the said BUYER agrees to pay to the said SELLER therefor, the sum of 8ix aDIIIY a ..\' . ' Hun4re4 rifty Thousan4 and no/l00 ($.50,000.001 Dollars, as follows: A. Forty Thousand and nol100 ($40,000.00) Dollars on or before the execution of this Agreement of Sale, the receipt whereof is hereby acknowledged by the SELLER; and B. The sum of Eighty-five Thousand and no/100 ($85,000.00) Dollars to be paid in monthly installments of Two Thousand Seven Hundred Forty-two and 71/100 ($2,742.71) Dollars, said monthly installments to be applied first to interest at the rate of ten (lot) percent per annum on the unpaid balance of principal, and the remaining portion of each such installment to reduction of principal, said monthly installments to be paid on or before the 5th day of each month, beginning June 5, 1993. A five (5t) percent late charge shall be added to each payment received after fifteen (15) calendar days from the due date. Said monthly payments aforesaid shall continue for three (3) years from the date hereof, at which time the full unpaid principal, together with interest thereon, shall be paid in full; and C. The balance of Five Hundred Twenty-five Thousand and nO/100 ($525,000.001 Dollars to be payable in monthly installments of Four Thousand Seven Hundred Seventy and 68/100 ($4,770.68) Dollars, said monthly installments to be applied first to interest at the rate of ten (lOt) percent per annum on the unpaid balance of principal, and the remaining portion of eaoh such . installment to reduction of principal, said monthly installments to be paid on or before the 5th day of each month, beginning June 5, 1993. A five (5t) percent late charge shall be added to each payment received after fifteen (15) calendar days from the due date. Said monthly payments aforesaid shall continue for ten (10) years from the date hereof, at which time, notwithstanding the amortization aforesaid, the full unpaid principal, together with interest thereon, shall be paid in full. 3. ~l1oo.tion of Prioe. The full purchase price of Six Hundred Fifty Thousand and nO/loa ($650,000.00) Dollars shall be allocated as follows: 2 , .1 Real e.tate: 'RICI $500,000.00 AIIBT Equipment, furnishings and personal property: lnventory: Good will: 150,000.00 0.00 , 0.00 4. 'repayment. BUYER shall have the privilege of paying as much more than the required monthly installment of principal and interest as he desires, and nothing contained in this Agreement shall be construed to limit him to said amount. In the event of a prepayment by the BUYER, SELLER agrees to apply the entire amount of prepayment to the outstanding balance due and owing on the CCNB Bank, N.A., Mortgage. 5. Taxe., Insurance, Assessment., Repair. alld Charqe.. In addition to the said monthly installments on account of purchase price and interest thereon, said BUYER agrees to pay the tax.. and municipal assessments, utility charges (if any), make all necessary repairs to the premises, and keep in force not le.. than Five Hundred Thousand and nO/100 ($500,000.00) Dollars of fire insurance with extended coverage, with loss payable to the parties hereto as their interests may appear. In addition, BUYIa shall acquire and keep in full force and effect during the ten of this Agreement l1abi1 i ty insurance in an amount of at le..t' One Million and nO/100 ($1,000,000.00) Dollars for accident, injury or death to anyone person or to property, and One Mllllqft.' and no/l00 ($1,000,000.00) Dollars for accident, in).ury or de.th" to persons or property arising out of anyone occurrence, with ) SELLER being named as additional insured. A copy of said policy .hall be provided to SELLER. 6. Place of paym.nt. All payments shall be made to SELLER at such address as said SELLER shall supply to said BUYER. 7. Po.....ion. It is also agreetl between the parties hereto thAt possession of said premises and the personal property shall be delivered to said BUYER on the 5th day of May, 1993, and that said BUYER shall be entitled to receive rents, issues and profits therefrom from said date of delivery of possession, subject to the conditions set forth herein. BUYER has inspected the real estate and personal property, including the improvements thereon, immediately prior to signing this Agreement, and accepts said property in its present "as is" condition. S. Al terations. BUYER lIgrees not to make a.ny substantial alteration of the condition of the premises, or of the buildings therp.on erected, without first securing the written consent and approval of the SELLER. 9. Title. Upon compliance with the foregoing terms and conditions and upon payment of the said purchase price in full by the said BUYER, the said SELLER will, at his own proper cost and charge, make, execute and deliver to BUYER a good and sufficient Deed for the proper conveying and assuring of the said premises, in fee simple, free from all encumbrances, dower and right of dower, subject only to easements and building and use restrictions and conditions visible or of record, such conveyance to contain the usual covenants of special warranty and otherwise 4 insurable by a licensed title insurance company at regular rates, without exception. Upon compliance with the foregoing terms and conditions and upon payment of the said purchase price in full by the said BUYER, the SELLER will, at his own proper cost and charge, make, execute and deliver to BUYER a good and sufficient bill of 8ale for all personal property being conveyed hereunder, free from all encumbrances or claims of creditors. 10. Tax Proration and Transfer Taxes. Taxes for the current year shall be prorated between the parties hereto using the fiscal years of the taxing authorities as the basis, and May 5, 1993 as prorating date. When legal title is taken by BUYER, SELLER shall pay one-half (1/2) of the state and local transfer taxes then in effect up to a maximum of Five Thousand and nO/100 ($5,000.00) Dollars, and BUYER shall pay the remainder. It this property is conveyed to a third party at the request of BUYER, then all transfer taxes on such conveyance shall be paid by such third party and the BUYER, as they may agree, and none shall be paid by SELLER. 11. SBLLER's Right to Enoumber. SELLER reserves the right presently or hereafter to mortgage or otherwise encumber said premises provided the principal amount of said mortgage or encumbrance, when added to the existing principal balance of the CCNB Bank Mortgage, if any, does not exceed the remaining principal balance due and owing under this Agreement, and provided also that the principal balance on the said new 5 financing shall not be due and-owing by a lump sum balloon payment prior to the balloon payment obligation due and owing by the BUYER to the SELLER under the herein Agreement. Said future liens, mortqages or encumbrances shall be satisfied by the SELLER prior to the time of. final settlement. 'There presently exists an unpaid Mortgage relating to the subject real property, to wit: a Mortgage from JOHN N. MALLIOS and VASILIKI HALLIOS to CCNB Bank, N.A., dated June 6, 1991, recorded June 7, 1991, in the Office of the Recordor of Deeds in and for Cumberland County in Mortgage Book 1016, page 306, in an original principal amount of Three Hundred Thousand and nO/100 ($300,000.00) Dollars, which Mortgage is subject to call on or after June 10, 1996. With respect to said Mortgage, SELLER agrees to make proper. disposition of payments as follows: a. Upon payment by the BUYER to the SELLER of the agreed upon monthly payment of Four Thousand Seven Hundred Seventy and 68/100 ($4,770.68) Dollars, SELLER will immediately apply all or a portion of those funds to make the minimum monthly payment ther due and owing pursuant to the terms of the said Mortgage with CCNB Bank, N.A. b. SELLER further agrees that upon request of BUYER, SELLER will provide written proof that payment has been made. c. In the event payment is made by BUYER to SELLER and SELLER does not make immediate payment to CCNB Bank, N.A., as required herein, SELLER hereby authori.zes BUYER to make the minimum monthly payment to CCNB Bank, N.A., directly and to utilize any payment so made as a credit against the monthly payment of Four Thollsand Seven Hundred Seventy and 68/100 ($4,770.68) Dollars due and owing by BUYER to SELLER. ':", 6 i" ;i " d. SELLER agrees that SELLER will provide BUYER with any notice of any kind or nature whatsoever the SELLER receives from CCNB Bank, N.A., relating to the aforesaid Mortgage within one (1) week of the receipt of the notice by the SELLER. 12. Furnishings, Equipment and Personal property not to be , Re.oved. During the term of this Agreement no personal property shall be transferred or moved from the premises. It is the intention of the parties that the real estate and all personal property be retained at the premises until payment of the full purchase price is made. Nothing herein shall be construed to prohibit the consumption or use of inventory and other consumables, however, BUYERS agree to maintain an adequate inventory and quantity of other consumables at all times. Further, nothing herein shall prevent BUYER, upon notice to SELLER, from replacing any equipment, furnishings or other personal property so long as the same is replaced with an item(s) of like kind and value. 13. Covenants of BUYBR. BUYER promise, covenant and agree as follows: A' To maintain the premises and personal property in as good a condition as they existed at the time of settlement and to make all necessary repairs thereto. B. To conduct all business operations in conformity with all of the laws and regulations of the Commonwealth of Pennsylvania and its administrative agencies and political subdivisions. C. To make timely payments ot all taxes and charges arising out of the operation and conduct of the business being purchased herein. 7 D. To promptly pay all installment payments due and owing to the SELLER RS partial consideration of this Agreement. E. To do nothing that will jeopardize the security of the SELLER with respect to the conduct of the business and the physical condition of the premises or personal property. 14. BUYER, at his expense, shall cause UCC financial statements to be filed in the Office of the prothonotary of Cumberland County and the Department of State of the Commonwealth of Pennsylvania providing SELLER with a security interest in all personal property being conveyed herein. 15. Bankl'uptoy or Insolvenoy of BUYER. In the event that BUYER shall be insolvent and unable to pay his debts as due, or in the event that BUYER shall file a Petition in Bankruptcy, or in the event that a Petition in Bankruptcy is filed against him by a creditor, such act shall constitute a default under this Agreement and SELLER shall have all of the rights granted to them by this Agreement to proceed or recover possession of the entire property and all rights and privileges granted hereunder. 16. Breaoh by Purohaser: Remedie. of SELLER. In the event BUYER shall fail to make said monthly payments as aforesaid for the space of thirty (30) days after the same shall have beco.. due and payable by the terms hereof, or if a breach of any of the other foregoing conditions be made by the BUYER and not cured within ten (10) days of receipt of written notice from SILLlR of said breach, SELLER, at his option, may: a. Declare a forfeiture of BUYER's rights hereunder and cancellation of this Agreement. On such election, all right, title and 8 interest of BUYER hereunder shall cease and determine, and all payments theretofore made by BUYER shall be retained by SELLER as liquidated damages and as rental for the use and occupancy of the real estate and personal property, and, in such event, the Protnonotary or any attorney of any Court of Record of Cumberland County is hereby authorized to appe~r for and ~onfess jUdgment in an amicable action of ejectment and replevin against the said BUYER, his heirs, assigns, executors, administrators or lessees, and in favor of the SELLER, his heirs, assigns, administrators and executors, for the premises and personal property herein described, and to direct the immediate issuing of Writ of Possession with Writ of Execution for costs, inClUding an attorney's fee of ten (10\) percent of the unpaid balance of the purchase price, without notice and without asking leave of Court; b. In lieu of declaring a forfeiture, accelerate and confess jUdgment, or accelerate and bring an action for the balance of the purchase price remaining due, or for any other relief available in law or equity, including suit to recover any payment or payments made by SELLER and repayable by BUYER hereunder, it being stipulated and agreed that such obligation to repay is a separate and independent covenant of BUYER hereunder. No action to recover any payment or payments so made by SELLER shall constitute a waiver by SELLER of his right to proceed otherwise with respect to any subsequent default. BUYER hereby authorizes any prothonotary or attorney to appear for and confess jUdgment against the BUYER and in favor of the SELLER for the entire unpaid balance of the purchase price, together with costs, interest, insurance payments, etc., and with ten (10\) percent added as an attorney's fee. 17. No Waiver. Acceptance by SELLER of any of the aforesaid monthly payments after the same shall have become p..t due and in default, or any failure to enforce any at the right. herein reserved to the SELLER, or any of the penalties, 9 ",' forfeitures, damageB or conditions herein contained, shall not in any wise be considered a waiver of the right to enforce the same at any time, without notice whatsoever, and any attempt to collect the amount due by one proceeding shall not be considered a waiver of the right to enforce any of'the other proceedings herein contained, but all of the rights of the SELLER and all forfeitures, penalties, damages and conditions may be enforced, together or successively, at the option of SELLER. 18. Am.ndment. No amendment or modification of this Agreement shall be valid unless the same shall be in writing and signed by both parties. 19. Entire Agreement. This Agreement constitutes the entire agreement between the parties and supersedes any prior written or oral agreements between them respecting the within subject matter. There are no warranties, representations, agreements, arrangements or understandings, oral or written, between and among the parties hereto relating to the subject matter of this Agreement which are not fully expresoed her.in. 20. Assignment. The interest of the BUYER in this Agreement shall not be assignable, by sale, assignment, I...., subleasing or otherwise, in ~hole or in part, without the pri~r written consent and approval of SELLER, and if such asslCJnM~il,i~, attempted, all rights and remedies of the SELLER set forth herein, or which the SELLER might otherwise have, shall immediately accrue to the SELLER. Transfer of title by Ni11, 10 survivorship or by descent shall not be regarded as an assignment requiring the consent and approval of SELLER. Upon payment in full of the outstanding present Mortgage to CCNB Bank, N,A., the interest of the BUYER in this Agreement shall be assignable with the consent of the SELLER, which consent shall not be unreasonably withheld. 21. Reoordinq. This Agreement, or a memorandum thereof, may be filed of record in any public office, as appropriate. 22. Time of the Eseenoe. It is the agreement of. the parties hereto that cime shall be of the essence. 23. Binding Effect. This Agreement is to extend to and be binding upon the heirs, successors, executors, administrators and assigns of the parties hereto. IN WITNESS WHEREOF, the parties hereto have set their hands and seals, intending to be legally bound, on the day and year first above written. WITNESS: ~~ l"7/.:"~ #--- , . , ~{r(/WJ~ Jo n N. Ma11ios '1ir,.,&t' mt~; Vaai1iki Ma1lios dK CLt4 '-L- V ACA.. ~: ld. 1/4 ~ Af Wagdi Ahmed Elharaa Ho.o-~ ~, ~ Hamdy A. Aly - 11 EXHIBIT "n" CARLISLB RBSTAUIAHT IQUIPKIRT LIST 35 Tables 87 Chai rs '. 4 nigh Chain 1 waitre.. station " 28 Boothe. x 4 · 112 2 Boothe. x 6 · 12 1 Salad Bar I Sharp Electrcnic ER-2396 ca.h Reg 11 tel' 1 Beverage Air Retrigerator 2 Soup Warmera 1 Toa.tmaster Bread Warmer 1 Sandwich Unit 1 Retrigerator K~ tchen 3 Gas stealR Tables 1 4-Burner stove 2 8-Burner Vulcan stoves 1 Bro.ster 2 Ga. Fryen wi th 2 panl each 2 Gas GrillS 1 Bay Marine ' ' 1 vulcan Broller 1 Vulcan. convention Oven " 1 Convention Oven ' , ',1< 1 2-Door Retrigerator 1 Hobart Refrigerator ',I" 1 walk-in Refrigerator 1 Walk-in Freezar I 2-Door victory Freezer 1 Hobart Oishwasher , , " 1 5/S Sink '. .,' 1 Wooden Work Table 1 . 1 s/S Work Table 1 Hobart Chopper 1 Hobart Veal Tenderizer 1 s/S Sink 9 5/s Shlll1 ves 1 Hanitowic lee Hachine 1 1I0bart Heat Sail 1 Globe Slice Machine 1 12 reet Hood with Ansul systeM Various pota and Pans I I ., I I I . .... . 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