HomeMy WebLinkAbout94-05826
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vs.
I IN THE COURT or COMMON PLEAS
I or CUMBERLAND COUNTY,
PINNSYLVANIA
CIVIL ACTION - LAW
NO. 94- 581-' CIVIL TERM
JOHN N. MALLIOS and
VABILIII MALLIOS,
Plaintiff.
.
.
WAGDI AHMID ILHARAS and
HANDY ALY, individually and
t/d/b/a KBYSTONIl DINER,
Defendant.
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COIII.LJl.III'1' 1'0. con.SSIp. O. .JVNll1l811'1' I. ..PLrlI.
1. The p1aintitfa are John N. Mallio. and Vasiliki
Mallio., hu.band and wite, who re.ide at 224 Heiser. Lane,
carlisle, CUmberland County, penn.ylvania.
2. Defendant Wagdi Ahmed Elhara. i. an adult individual
who.e la.t known addre.. i. Conestoga West Apartments, Apartment
841, 280 Stonemill Road, Lancaster, Lancaster County,
penn.ylvania 17603. Defendant Hamdy Aly is an adult individual
whose last known addre.. i8 1428 Bradley Avenue, Apartment J-214,
CarliSle, Cumberland County, penn.ylvania 17013.
3. Defendante Elhara. and Aly trade and do bu.ine.. a.
~ey.tone Diner, & Pennsylvania general partner.hip with its
principal place of bu.ine.. at 1803 Harri.burq Pike. Carli.le,
CUaberland County, penn.ylvania 17013.
4. There i. attached hereto aa Exhibit "A", and
incorporated by reference, a certain Aqreement of Sale dated May
5, 1993, between Plaintiff. and Defendant..
5. The Agreement at Sale attached a. Exhibit "A" ha. not
been a..igned by either Plaintiff. or Defendant..
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I~.
ARTICLES OF
AGREEMENT OF SALE
AGREEMENT, made this ,5"& day
of~/
1993, between JOHN N. KALLIOS and VASILIKI KALLIOS, of 224
Heisers Lane, Carlisle, penn~ylvania, hereinafter (whether
singular or plural) called "SELLER",
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AND
WAGDI AHMED ELHARAS and IIl\MDY 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 BIJYER,
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 assigns,
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 "8", attached hereto and incorporated herein by reference
thereto.
2. purohase Prioe. In consideration whereof, the said
BUYER agrees to pay to the said SELLER therefor, the sum of Six
aUUI" A
Hundred ~ifty Thou.and and no/100 ("50,000.001 Dollar., as
follows:
A. Forty Thousand and nollOO ($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 nol100 ($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 (10\) percent per annum
on the unpaid balance of principal, and the remaining
portion of each such installment to reduct1.on of
principal, said monthly installments to be paid on or
before the 5th day of each month, beginning Juno 5,
1993. A five (5\) percent late charge shall be added
to each payment received after fifteen (15) calendar
days from tho 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 Hundr~d Twenty-five Thousand and
no/100 ($525,000.00) 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
(10\) 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 (5\)
percent late charge shall be added to each payment
received after fifteen (15) calendar days from the due
date. Said monthly payments aforesaid shall continl~e
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. Al10caticn of Prioe. The full purchase price of six
Hundred fifty Thousand and no/10'0 ($650,000.00) Dollars shall be
allocated as follows:
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Real estate:
Equipment, turnishings and
personal property:
Inventory:
Good will:
PRIcm
$500,000.00
150,000.00
~'BBT
0.00
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0.00
4. prepayment. BUYER shall have the privilege ot 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. Tax.., In.urano., A.....m.nt., R.pair. and cbarqe.. In
addition to the said monthly installments on account of purchase
price and interest thereon, said BUYER agrees to pay the taxes
and municipal assessments, utility Charges (if any), make all
necessary repalrs to the premises, and keep in force not less
than Five Hundred Thousand and no/lOO ($500,000.00) Dollars ot
fire insurance with extended coverage, with loss payable to the
parties hereto as their interests may appear. In addition, BUYER
shall acquire and keep in full force and effect during the term
of this Agreement liability insurance in an amount of at least
On. Million and nO/lOO ($1,000,000.00) Dollars for accident,
injury or death to anyone person or to property, and One Million
and nO/100 ($1,000,000.00) Dollars for accident, injury or death
to persons or property arising out of anyone occurrence, with
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SELLER being named as additional insured. A copy of said policy
.hall be provided to SELLER.
6. 'laoe of .ay.ent. All payments shall be made to SELLER
at such address as said SELLER shall supply to said BUYER.
7. .o.....ion. It is also agree~ between the parties
hereto that possession of said premises and the personal property
.hall be delivered to said BUYER on the 5th day ~f May, 1993, and
that said BUYER shall be entitled to receive rents, issues and
profits therefrom from said date of delivery of possession,
.ubject 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.
8. Alt.rations. BUYER agrees not to make any substantial
alteration of the condition of the premises, or of the buildings
thereon erected, without first securing the written consent and
approval of the SELLER.
9. ~itle. 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 tor the proper conveying and assuring of the said premises,
in tee simple, tree from all encumbrances, dowor and right of
dower, subject only to easements and building and use
restrictions and conditions visibie or ot record, such conveyance
to oontain the usual coverlants of special warranty and otherwise
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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 .ale
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 nol100
($5,000.00) Dollars, and BUYER shall pay the remainder. If 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. SIlLLIIR's Right to IInculllber. SELLER reserves the right
presently or hereafter to mortgage or otherwise encumber said
premises provided the principal amount of said mortgage or
enculllbrance, when added to the existing principal balance of the
CCNB Bank Mortgage, if any, dOGS not exceed the remaining
principal balance due and owing under this Agreement, and
provided also that the principal balance on the said new
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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,. mortgages 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 MALLIOS to CCNB Bank,
N.A., dated June 6, 1991, recorded June 7, 1991, in the Office of
the Recorder of Deeds in and for Cumberland County in Mortgage
B~ok 1016, page 306, in an original principal amount of Three
Hundred Thousand and nO/l00 ($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 then due and
owing pursuant to the terms of the said
Mortgage with CCNB Sank, 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 authorizes 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 Thousand Seven
Hundred Seventy and 68/100 ($4,770.68)
Dollars due and owing by BUYER to SELLER.
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d. SELLER agrees that SELLER will provide BU~ER
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. wurnishin98, Equipment and Personal property not to be
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Removed. 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 BUYER. BUYER promise, covenant an~ 19ree
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 of all taxes and charges
arising out of the operation and conduct of ~he
busines:I being purchasBo herein.
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o. To promptly pay all installment payments due and owing
to the SELLER as 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.
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14. BUYER, at his expense, shall cause UCC financial
statements to be filed in the Office of the Prothonotary of
Cumberland County and the Oepartment of State of the Commonwealth
of Pennsylvania providing SELLER with a security interest in all
personal property being conveyed herein.
15. Bankruptoy 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
Agreemnnt 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. Breach by Purchaser; Reme4ie. of SBLLER. 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 become
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 SELLER of
said breach, SELLER, at his option, may:
a. Declare a fo~felture of BUYER's rights
hereunder and cancellation of this Agreement.
On such election, all right, title and
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inter.ost 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
Prothonotary or any attorney of any Court of
RecQrd of Cumberland County is hereby
authorized to appear 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
S~LLER 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 proceod 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. Mo Wsiver. Acceptance by SELLER of any of the
aforesaid monthly payments after the same shall have become past
dUe and in default, or any failure to enforce any of the rights
herein reserved to the stLLEll, or any of the penalties,
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forfeitures, damages or conditions herein contained, shall not in
any wi.e be considered a waiver of the right to enforce the aame
at any time, without notice whatsoever, and any attempt to
collect the amount due by one proceeding shall not be considered
. 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. Aaendment. No amendment or modification of this
Agreement shall be valid unless the same shall be in w~iting and
signed by both parties.
19. Zntire 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, r'epresentations,
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 expressed herein.
20. Assignment. The interest of the BUYER in this
Agreement shall not be assignable, by sale, assignment, lease,
subleasing or otherwise, in whole or in part, without the prior
written consent and approval of SELLER, and if such assignment is
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 Will,
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.urvivorship or by descent shall not be regarded as an assignment
requiring the consent and approval of SELLER.
Upon payment in full ot the outstanding present
Mortgage to CCNB Bank, N.A., the interest ot the BUYER in this
Agl'eement shall be assignable with the consent of the SELLER,
which consent shall not be unreasonably withheld.
21. .eoordinq. This Agreement, or a memorandum thereof,
may be tiled of record in any public office, as appropriate.
22. Ti.e of the Bssenoe. It is the agreement of the
parties hereto that time shall be of the essence.
23. Binding Effeot. 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: ~
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I101A b m ~t-L' --L-
~al1ios
'7hr~~' YYk~f
Vasiliti Ms11ios
d-P tL0 '1~
VAc...\l".: !;..tH.q~~
Wagdi Ah.ed Ilhara.
H Go'M-~ ~ ~
HuuSy A. Aly
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ALL TIlAt CERTAIII hllcl or parcel or land B1lullle In Hlddlelu TONnehll"
Cllllb.~hl1d counlt, l'onnl)'11II11II1, bcunded IInd ducrlbed 1\11 follolll, lo "Il:
DEUlllllllllJ al a "olllt 011 the 1I0rthllest eorller of U.A. ROllle II (llld CIlrollM
Ur11., III aholln on th" lubdlvluloll plllll herellll\tlor 1I\0ntlone.1I thence 1I10nll the
...htll .lde or Cllrolllll\ Ilrlv" III II I,\ellllltlllh norlher17 dltl!clloll, 1I0rth twelve
. .
d..r.... .lavell ,lnulU tllelll)' Deenndll EIl.t, II dl,lallce of lllo hundred IIlvenlY~
o '
Un Itlll 1I1neh~lh~el! hUlldredth. feet. (II. l2 Il' zo" E., Z76.93') to Il I'ollll;
lh.llr:!e III a ,ellorllll)' easlerlr JIt'ecHon IIPllroxllll1t.e17 South unllt)'-n.ven
J.,r..' rorly-.I~hl 11hllloll forl)' necolIJe Enbl, II dlelllnct! of l"o hlllldred
lhlrh-tour Im\ lhhly-elght humlredlhB [eel (B. 770 49' 40" E" 234.39') to 1\
\llllnll lltellcl! III a ._nerall)' eoulherh t1lrecUonl Boulh Benn de. reeD thl rly-
. 0
lwtl 1Ilnul" u~o lIecolldb lleul, n dltllance of lwo hUIIJred [lfly-lllt feet lB. 7
3Z' 00" II.. Zllll.UU') lo a (lolnll lhellcll "lollg lh" prevlouDh Dllloted U.S. Roule
11 111 a "ene~all)' ~eble~l)' Jlrecllon 1I0rth elghly-lwo dellreee l"elllY-llllhl
.lhutu rou~ ucondll lIeel, a dlelllllce or two hundred rlrt)'-Dllt reel (H. 8Zo 29'
4" 11" 25I1,UO') lo Ii. polllt, lhe plll~c of lJelll111111l1l'
cUHtMlIllIO lIpproxlrlllolely uhly-flve lhoUBllnd one hUlldred rour IloIllI lwenly-
fhl hu,"lredlhB ef\Utlte reel (GIl,IU4.21l '<I' rt.) or one and rorly-nllle Ilcrn
. (1.49 A." lore or hun.
IlEIHU Lo~ No. Z Oil the Ill)pro'.ed nubdlvhloll phn fot Cllorllele Uevelopllenl
(Jllr,,()rA~l()h III recorded III lhe CUlIber land COUlIl)' necorder'. orr Ice on Mil)' D,
19M I 1n I'hn nook 4~ I rnllc 00.
BEING the same "remises which C.P.S.l!., Inc., a Pennsylvania corporation,
by its deed dated June 5 . 1991, and recorded in the Office of the
Recorder of Deeds in and for cumberland County in Deed !lOOk "0 ", Volume 35
page 730 , granted and conveyed unto John N. Mallios and vasiliki Mallios.
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JOHII N. IlALLI08 anel
VUILIlCI IlALLIOS,
Plaintiff.
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IN THI COURT or COMMON PLDS
or CUMBIRLAND COUNTY
PINNSYLVANIA
CIVIL ACTION - LAW
94-5826 CIVIL TIRM
"MDI AHIIID ILHARAS anel
HAMDY ALY, inelividually and
t/el/b/. KEYSTONI DINIR,
Defenelant.
".IDaVI~ 01' .a.vlo.
COMMONWEALTH or PINNSYLVANIA
COUNTY or CUMBERLAND
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: as.
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AND NOW, THIS day of Octob.r, 1994, I, Edward L. Schorpp,
I.quire, attorn.y for Plaintiff. in the above caption.d action, h.r.by
.w.ar th.t I have ..rv.d a true copy of the Complaint and Conf...ion
of Judqa.nt in the above captioned matter upon the following I
HalDdy Aly
1428 Bradl.y Av.nu.
Apt. J-213
Carli.l., PA 17013
Wageli Ahm.d EIHarae
Con..toga w..t Apt..
Apt. BU
280 Stone.ill R0ad
Lanca.t.r, PA 17603
Haacly Aly and Wagdi Ah..el IIH.r..
tIe X.y.ton. Din.r
1803 Harri.burg Pike
Carli.l., PA 17013
by elaP-9.iting the .... in the U.S. Mail, po.tag. pr.-p.id, on october
/~ , 1'94, by ordinary mail addr....el to .ach Defendant a. ..t
torth -.0 ~r='~
By I ,,e...--
Edward L. 8c orpp, ..q.
8worn .nel .ub.crib.d ~o
before.. on thi. I~day
of OCtober, 1 9..
IIDfNIMl SIAl
SlIM 1l1UY11l. NoIary Mile
CarIIIIt, Cumllerland County
My ComrlllUlall bgires Slgt., '99~
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