HomeMy WebLinkAbout00-01045
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PENNSYL VANIA STATE BANK,
Plaintiff
IN THE COURT OF COMMON PLEAS
: CUMBERLAND COUNTY, PENNSYLVANIA
v.
: CIVIL ACTION - LAW
STREETGARD, INC. and
JOHN K. RICH,
Defendants
: NO. 00-1045 CIVIL TERM
NOTICE
YOU HAVE BEEN SUED IN COURT. IF YOU WISH TO DEFEND AGAINST TEtE
CLAIM SET FORTH IN THE FOLLOWING PAGES, YOU MUST TAKE ACTION WITHI:N
TWENTY (20) DAYS AFTER THIS COMPLAINT AND NOTICE ARE SERVED, EIY
ENTERING A WRITTEN APPEARANCE PERSONALLY OR BY AN ATTORNEY AND FILI~~
IN WRITING WITH THE COURT YOUR DEFENSES OR OBJECTIONS TO THE CLAIMS SE:T
FORTH AGAINST YOU. YOU ARE WARNED THAT IF YOU FAIL TO DO SO THE CASE
MAY PROCEED WITHOUT YOU AND A JUDGMENT MAY BE ENTERED AGAINST YOU E,Y
THE COURT WITHOUT FURTHER NOTICE FOR ANY MONEY CLAIMED IN THE COMPLAI~IT
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.
COURT ADMINISTRATOR - FOURTH FLOOR
CUMBERLAND COUNTY COURTHOUSE
ONE COURTHOUSE SQUARE
CARLISLE, PENNSYLVANIA 17013
(717) 240-6200
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PENNSYL VANIA STATE BANK,
Plaintiff
: IN THE COURT OF COMMON PLEAS
: CUMBERLAND COUNTY, PENNSYLVANIA
v.
: CIVIL ACTION - LAW
STREETGARD, INC. and
JOHN K. RICH,
Defendants
: NO. 00-1045 CIVIL TERM
AMENDED COMPLAINT
AND NOW this
day of
, 2000, comes Plaintiff by and throu~lh
its attorneys Knupp, Kodak & Imblum, P.C. Robert L. Knupp, Esquire and respectful'ly
amends its Complaint as follows:
1. Plaintiff, Pennsylvania State Bank, is a banking facility organized and
operating under the laws of the Commonwealth of Pennsylvania with offices at 2148
Market Street. Camp Hill, Cumberland County, Pennsylvania 17001.
2. Defendant, Streetgard, Inc. (hereinafter "Streetgard"), is a corporaticln
organized and existing under the laws of the Commonwealth of Pennsylvania with its
address at 405 Heiser Lane, Carlisle, Cumberland County, Pennsylvania 17013.
3. Defendant, John K. Rich, is an adult individual residing at 17119 Carria~le
Dale Court, Spring, Texas 77429.
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4. At all times pertinent hereto, Defendant John K. Rich was president of
corporate Defendant Streetgard, Inc.
COUNT I.
(Plaintiff v. Streetgard, Inc.)
5. Plaintiff incorporates herein by reference thereto the averments hereinabove
set forth in paragraphs 1 through 4.
6. On or about December 10, 1997, Defendant Streetgard entered into a
Businessl Manager Agreement (hereinafter 'Agreement") with Plaintiff, which Agreemelllt
is, in essence, a factoring program whereby Defendantwould sell its discounted accounts
receivable to Plaintiff in return for cash. A copy of the Agreement executed by and
between Plaintiff and said Defendant is attached hereto, made a part hereof and markEid
Exhibit "A"
7. On or about December 10, 1997, Defendant Streetgard executed a Promissolry
Note for the sum of $425,000.00 in favor of Plaintiff, which Note evidenced a revolving line
of credit gral'lted by Plaintiff. A copy of said Promissory Note is attached hereto, made a
part hereof, and marked Exhibit "B".
8. On or about January 11, 1999 and again on or about May 3,1999, Plaintiff and
Defendant executed Modification Addenda to the aforesaid Agreement, thereby increasing
the total outstanding face amount of the receivables which might be purchased by
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Plaintiff. Copies of said Addenda are attached hereto, made a part hereof and marked
Exhibit "C".
9. On or about June 10, 1999, Defendant Streetgard executed a Promissory Note
whereby Defendant agreed to pay Plaintiff the sum of $95,264.22 along with interest em
the unpaid principal for those certain accounts deemed uncollectible. A copy of said Note
is attached hereto, made a part hereof, and marked Exhibit "0",
10. The Defendant Streetgard has defaulted on the accounts owed pursuant Ito
the obligatioll1s that it entered into.
11. The Defendant Streetgard is obligated to the Bank in the sum of Seve~n
Hundred Five Thousand Five Hundred Twenty-Six Dollars and Seventy-Eight Cents
($705,526.78) an accounting demand for which was made by a letter dated June 25, 1999,
attached hereto as Exhibit "E."
12. An accounting has been made of all sums owed, together with credits du,e,
and the net balance remaining owed by the Defendant Streetgard is Six Hundred Forty-
One Thousand Three Hundred Eighty-Seven Dollars and Ninety-Nine Cents ($641,387.99)
the accounting for the said sums owed is attached hereto as Exhibit UF."
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13. On or about June 25, 1999, Plaintiff did notify said corporate Defendant as
well as individual Defendant John K. Rich that:
(a) due to the large number of customer billing disputes related to
Defendant Streetgard's invoices purchased by Plaintiff, payment on said
invoices was extremely doubtful;
(b) the aforesaid large amount of disputed invoices constituted an event
of default under the aforesaid Agreement and related Promissory Notes; and
(c) the entire unpaid principal balance and accrued interest, to ""it
$705,526.78, were due and payable by July 10, 1999.
14. To date, despite Plaintiffs demands, Defendant Streetgard has failed to timely
remedy its delinquency with Plaintiff.
15. Plaintiff has granted Defendant Streetgard credit for all payments made (In
the account and there remains a balance due and owing of Six Hundred Forty-One
Thousand Three Hundred Eighty-Seven Dollars and Ninety-Nine Cents ($641,387.99)
(Exhibit "F").
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WHEREFORE, Plaintiff prays this Honorable Court to enter judgment in its
favor against Defendant Streetgard in the sum of Seven Hundred Five Thousand Five
Hundred Twenty-Six Dollars and Seventy-Eight Cents ($705,526.78) (which amount
includes pril1lcipal and interest of ($641,387.99) along with attorney's fees of $64,138. i'9
and interest at the legal rate of six percent (6%) per annum and the costs of this
proceeding).
COUNT II
(Plaintiffv. Defendant John K. Rich)
(Commercial Guaranties)
16. Plaintiff incorporates herein by reference thereto the averments .IS
hereinabove set forth in paragraphs 1 through 15.
17. On or about December 10, 1997, Defendant Rich executed, under seal, a
Commercial Guaranty whereby said Defendant guaranteed payment to Plaintiff of 100%
of the aforesaid Promissory Note executed on that date by Defendant Streetgard. A copy
of said Guaranty is attached hereto, made a part hereof, and marked Exhibit "G".
18. The aforesaid Guaranty clearly states that said Guaranty covers a revolving
line of credit and that the Guaranty shall be open and continuous until the line of credit
is terminated! and the indebtedness is paid in full.
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19. On or about June 10, 1999, Defendant Rich executed, under seal, a
Commercial Guaranty whereby said Defendant guaranteed payment to Plaintiff of 100%
of the aforesaid Promissory Note executed on that date by Defendant Streetgard.
20. On or about June 25,1999, Plaintiff notified Defendant Rich that:
(a) due to the large number of customer billing disputes related to Defendant
Streetgard's invoices purchased by Plaintiff, payment on said invoices WelS
extremely doubtful;
(b) the aforesaid large amount of disputed invoices constituted an event l~f
default under the aforesaid Agreement and related Promissory Notes; and
(c) the entire unpaid principal balance and accrued interest, to wit
$705,526.78, were due and payable by July 10, 1999.
21. Plaintiff has granted Defendant Streetgard credit for all payments made on
the account and there remains a balance due and owing of $641,387.99.
22. Plaintiff has made demands upon Defendant Rich for the aforesaid balanc:e
due and owing which demands remain unheeded.
23. Pursuant to the Promissory Notes, Defendant Rich agreed to pay Plaintiffs
collection costs, expenses and attorney's fees of ten (10%) percent of the principal
balance and interest due and owing, to wit: $64,138.79.
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WHEREFORE, Plaintiff prays your Honorable Court to enter Judgment in its
favor and against Defendant John K. Rich in the amount of Seven Hundred Five Thousand
Five Hundred Twenty-Six Dollars and Seventy-Eight Cents ($705,526.78) (which amount
includes principal and interest of ($641,387.99) along with attorney's fees of $64, 138. ~r9
and interest at the legal rate of six percent (6%) per annum and the costs of this
proceeding).
Respectfully submitted,
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Robert L. Knupp . ~.J
Knupp, Kodak & Imblum, P.C.
407 North Front Street
Harrisburg, PA 17108
(717) 238-7151
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VERIFICATION
I,
R. ALAN PATTON
VICE PRESIDENT
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of
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l'i:NNSYLVAN:IA S'l'ATi: BANIt, l'laintiff, verify and stat.. that the factlJ
set forth in the within document are t:ue and correct to the best
of my knowledge, information and b..lief.
I B~t this
Verificilltion p\1rs\1ant to 18 l'a.C.S.A, S4904 dealing with false
statements arid relating to \1nsworn verification to authorities.
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Date:
OCTOBER 20, 2000
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Tl.. mSINESS/MANAGER@ AGi_ - ,vIENT
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WI1.ct BUSINESSES AND PROFESSIONALS
TO: Pennsylvania State Bank
2148 Market Street
Camp Hill P A 1700 I
FROM: Streetgard, Inc.
405 Heiser Lane
Carlisle P A 17013
( The "Bank")
(The "Business")
This Agreement is entered into by and between the Bank and the Business to govern the sale of
Receivables, asdefmed below, by the Business to the Bank. The Business agrees to the
following terms according to which, when accepted by the Bank, the Business will receive
payment for Receivables arising from sales or services to Customers and purchased by the Bank
pursuant to the Bank's BusinesslManager plan.
SECTfON 1: DEFINITIONS'
- -, -, - 1.1 "Credit; Application - and Av-eement" - 'means a Credit Application and
Agreement executed-bya'CuStoinerand any other agiecinent or documentation that-governs 'the
terms and disclosures relatiti:g to a Receivable,' . .
,1.2 ;, "Credit Memo"irieari.s. a fOrin reflecting' a credit, other than a credit ariSing from
apayment,to'aCUstomers'aCe6fu1twiththeBusinesS;;""~"""" , -- -- '- '-"!oJ.e.:.; f'
".- ' 1.3 -, "Ctistolnii;;";melmsildebtor obligiited.'Oifbfte or more. Receivables which:ar6se
from gOOds the Business sold' or~services it teJidere(ftd thifCustomeT: _'$1,"-'
, ,,' . i4' - "Face ixirio'unttl of it ReCeiv8ble~m-g,ilfron' aiiy date' the outstandingliiiIahce'(of
i. such Receit-abl6 (after' tiiIdngffutci;8.ccount,'With~~~liCati6n; all; payiUents,reiumS,li~tS~or
allowanCes"ofaD.yIiatui~ atJariy J"tilne'iSsUed,= oWi'kg!-&ianted or outstanding); plils'~anyitiixes
impOsed'irrtomie6tioi{with%ch";R&eMble.lt<;~le~~;.'!,,, ;'-," ',i.'iiiWm'f.~~1
,..1)!13i i S'''Invoice''>mea'n,,''ah''iil:voice>o?'Sim;t~aeiibe-'{whether in:'wntten"iji e1M'tfClrli,:
forrii)oftheteni1S'of a'ri6ii~li~e'(:jfg~~ol:iproViSion"'OfiserviceS previouslt~in;;de1l>y(the:
BUsiriess toll. ~O'nlh."i,":,:I~"t_;;' ~: 'j~, ~..-~ ",1l;l!:n~Iq :>,'"1' ,"~,;-",.' -('.\
", 1.6 ,', -- . "Ndt Amdiin't" 'dh%:cei~~~,~~",;'nH~ Face AlnoUnt of a Receiva.bl<,'less'.the:
Service ChaIge: 'j ~V;:.' ;<;, :-7"j. ~,':~~.~:;.,:~n~ :d.tr~ ;"r:;j't,"t".:;:.:,,-. '." 'f.;i.:_.;" ..."v or !~:,.J4~:~~~:~:
: 1::7. ,: "0 b liga tiJns " nieariS:rilIFdr- thi; BiiShiliss's obligations to the Bankrwllether
" - pUJ:SllliI1No ftb.is'\(~lD,ent,4:Ui!.d~r ,liriY:'note;'contiact;"'~tYSCcommodation';bt othitMse"
: however' aiia'\Viienever"(:@ated;"'aFi~g or"evid~Ced,' Wh'1thet <fired 'Or 'indirect, 'absolute or
contingent, now or hereafter existirig or'due. -, - - - "
1.8 - - "ReceiVabIes"'meansall aCcOunts, inStruments, contract rights, chattel 'paper"
documents, andgeneraliD.tan.giblesarising from the Business's sale - of goods or rendering' of
services, and the proceeds thereof, and all security and guaranties therefore, whether now
existing or hereafter created, that are accepted by the Bank for purchase hereunder in the Bank's
sole and absolute discretion.
1.9 "Repurchase Obligation" means the liability of the Business to the Bank Ill1der
this Agreement in an amolll1t equal on any date to the Face AmOlll1t of Receivables on that date"
plus attorneys' fees (if incurred) and accrued and unpaid finance charges related to such
Receivables. '
1.10 "Reserve" means funds of the Business used to provide for the funding of the:
Business's Repurchase Obligation. "Reserve Account" means the deposit accolll1t of the:
Business containing the Reserve established PWSUant to Section 2.5 of this Agreement.
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1.11 "Servic\ .large" mear.:s a discount equal to 3:. .,.,rcent (3.75 %J of the' Face
Amount of each Receivable the Business tenders to the Bank that is acquired by the Bank. The
Business acknowledges that the Service Charge is a discount for value and in no event
constitutes interest or a similar charge ~nd that the transactions contemplated under this
Agreement are not transactions for the use, forbearance or detention of money. The Service
Charge has been agreed upon by the parties as representing a reasonable and customary fair
market value discount.
SECTION 2: SALE: PURCHASE PRICE: BILLING: RESERVE
2.1 Assienment and Sale. The Bank hereby purchases from the Business and the
Business hereby assigns and sells to the Bank as absolute owner, the Business's entire interest in
such of its currently outstanding Receivables as are described on attached Exhibit 2.1, as well as
its future Receivables represented by Invoices it delivers to the Bank; provided, however, that at
no time shall the total outstanding Eace Amount of Receivables purchased by the Bank exceed
$ 425,000.00 unless agreed to by the Bank. The Business and the Bank agree that: (a) the
Business will submit to the Bank all Invoices representing receivables arising from all sales of
goods or provisions of services to Customers for the Bank's determination of acceptability as
Receivables; (b) the transactions contemplated by this Agreement are account purchase
transactions; (c) the Receivables are being purchased by the Bank from the Business at a
discount; (d) the purchase and sale of the Receivables vests absolute right, title and ownership of
such Receivables, together with all incidents and benefits thereof including servicing rights and
rights to verify Receivables with Customers, in the Bank; and (e) the Business has no right to
- reacquire, redeem or otherwise obtain title to the Receivables or any proceeds thereof. The
Business further sells and assigns to the Bank all of the Business's rights as an unpaid vendor,
lienor, or lienholder, all of its related rights of stoppage in transit, repleVin and reclamation and
rights against third parties (all of which shall constitute part of the Receivables), and agrees to
cooperate with the Bank in its exercise of these rights. The Business and the Bank agree to
execute and deliver such further instruments, documents and endorsements as may be necessary
to effectuate the sales and purchases contemplated hereby and the pw:poses of this Agreement.
2.2 Purchase Price. The purchase price of the Receivables shall be equal to the Net
Amount thereof. The Net Amount less the Reserve associated with the Receivables shall be
credited to th", R",:in",~.'s prim,,"}' "r.r.J'lIlnt .with-4h", n""k-on or before the next banking day after
delivery to the Bank of acceptable Invoices. The Business and the Bank have agreed upon the
purchase price of the Receivables and said price reasonably reflects their fair market value.
2.3 Documentation. The Business will provide the Bank with appropriate Credit
Applications and Agreements, Invoices, and Credit Memos (if applicable) related to all sales and
services creating Receivables of Customers, and such other documents and proof of delivery of
goods or rendering of services as the Bank may reasonably require. As to the Receivables
described on Exhibit 2.1, the payment of the purchase price by the Bank as set forth in Section
2.2 hereof shall be conclusive evidence of assigrunent and sale thereof, and, if the Bank so
requires, any Invoices the Business may thereafter send (if any) will clearly indicate that the
related Receivables have been assigned, sold, and are payable to the Bank only.
2.4 BilIine:. The Bank will send a monthly statement to all Customers itemizing their
account activity during the preceding billing period, unless otherwise agreed by the parties. All
Customers will be instructed to make payments to a post office box controlled by the Bank. All
payments received from or for the account of a Customer will be applied to the obligations of
that Customer. Payment will be deemed made when received by the Bank. All variations,
modifications or extensions of indebtedness on Receivables sold to the Bank hereunder will be
made only by the Bank. Nothing in this Agreement authorizes the Business to collect
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, Receivables sold to tho ..nk hereunGer, but in the event tt,~ ..;iness does, i! will receive
remittances in trust for Ule Bank and wiH remit the same to the Bank no later than the next
banking day. The Business will pay to the Bank any finance charges incurred by a Customer
pursuant to the applicable Credit Application and Agreement or terms of sale because of delay on
the Business's part in delivering payments or Credit Memos to the Bank.
2.5 Reserve. The Bank may retain a portion of the sums payable to the Business as a
Reserve, the amount of which the Bank may adjust from time to time in its reasonable discretion
to provide for satisfaction of the Business's Repurchase Obligation. The initial amount of th~
Reserve will be equal to 10 % of the Face Amount of all Receivables initially purchased by the
Bank. Thereafter, and subject to the Bank's right to adjust the Reserve as set out above, the Bank
will retain as Reserve and deposit in the Reserve Account 10 % of the Face Amount ofal!
Receivables purchased by the Bank subsequent to its initial purchase of the Receivables. The
Reserve will be held in a separate, interest-bearing account for the benefit of the Business.
SRCTION 3: REPURCHASE OF RECEIVABLES: SECURITY INTEREST
3.1 Required Repurchase. With respect to any Receivables initially purchased by
the Bank and shown on Exhibit 2.1, the Bank may require the Business to repurcl;1ase all or any
portion of such Receivables from any particular Customer plus any finance charges at monthly
periodic rate of 0.% if any minimum payment due on one or more of such Receivables remains
unpaid following qO.<f,ltys, after its first billing date. With respect to any Receivables purchased
subsequent to the Bank's initial purchase hereunder, the Bank may - reqUire the Business to
repurchase all or-_ap.y.pqrtion,of,such Receivables from any parti<<~~..~()mer plus financ'~
charges at a monthly periodic rate of 0.% if any minimum payment due on one. or more of such
Receivables rem~..unpllid following 120 days after its first billing date.):or,purposes of this
Agreement,:the.aging:~!tJs of Receivables purchased from the Business as,$.,o~'on the aging
report of Receivables produced or generated by the Bank will be' deem~.lconclusive (abl!~nt
manifest error)in,;determining. which Receivables the Bank may"requi,re,~the J3usiness. to
repurchase.. Reg~P1~.of.when purchased, the Bank may require the Business to repurchase all
or any portion of such Receivables from any particular Customer if such. Customer is bankrupt or
insolvent or if any dispute arises with a Customer regarding such Receivables (including, without
limitation, any alleged deduction, defense, offset or counterclaim thereto). The Bank may
req~e the Business to repurchase any or all outstanding Receivables (a) upon a Default, as
defined in Section 8, or (b) upon the termination of this Agreement. Any decision by the Bank to
_ require repurchase. of less than the maximum amount permitted by this Agreement shall not be
deemed a waiver of the Bank's rights to require such repurchase to the maximum extent
permitted in this Agreement.
3.2 Effectinf Repurchase. Should the Bank require repurchase of one or mor':
Receivables, the Business shall be liable to the Bank for payment of the Repurchase Obligation
with respect to such Receivables. Upon a Default or termination under this Agreement, th,:
Repurchase Obligation shall also include the amount of all indemnities and other obligations of
the Business arising under this Agreement. Without notice to or demand on the Business, th,:
Bank may debit the amount of such Repurchase Obligation (and any amount necessary to bring
the Reserve to the level required by the Bank in its sole and reasonable discretion) against the
Business's Reserve Account or any other deposit account of the Business with the Bank. In the
event such accounts contain insufficient funds for the Bank's debit or the Bank elects not to make
such debit, the Business agrees to pay any such deficiency or shortfall on demand. The Banlc
shall have no undertaking with respect to the billing or collection of Receivables so repurchased.
After demand, if such Repurchase Obligation is not paid in full, and if permitted by applicable
law, the Business authorizes any attorney-at-law to appear for the Business in any court of record
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in the United States, , ill confess judgm<!nt for such amo, as may appear'to be unpaid
thereon, together with any allowable fees for collection of said judgment. '
3.3 Security Interest. The Business hereby grants the Bank a security interest in all
of its present and future accounts, instruments, contract rights, chattel paper, documents and
general intangibles (in each case as defined in the Uniform Commercial Code as in effect in the
State whose law governs this Agreement) and the proceeds thereof, and all returned, repossessed
and reclaimed goods, and related books and records, to secure all of the Business's Obligations:
and agrees to execute appropriate UCC-l financing and other related statements. In addition the
Business grants the Bank a security interest in the Reserve and in the Reserve Account to se~ur'e
all of the Business's Obligations. The BUsiness agrees to execute such additional documents and
take such further action as Bank deems necessary or desirable in order to perfect the security
interests granted herein and otherwise to effectuate the purposes of the Agreement. In the eve~t
that the Bank requires additional security for the Business's obligations under this Agreement
and the Business or other party executes additional security agreements, pledge agreements,
gllM"nties and dorJlmp.nt.: of ";"';1",. import (collectively, the "Additional Security Documents"),
terms used therein such as, but not limited to, "loans," "indebtedness," "secured obligations," and
"obligations," shall be deemed to include the' Repurchase ,Obligation as defined herein, and
notwithstanding the provisions of the Additional Security Documents, the Repurchase Obligation
" secured thereby shall not constitute a loan.
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SECITON 4: REPRESENTATIONS. WARRANTIES AND COVENANTS
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4.1 ,:, Representations and WarrantieS;'The;Bu.smess'repreSentsand warrants that:
(a) it is fully authorized to enter into this Agreement arid to perform hereunder, and that this
Agreement constitutes its legal, valid and binding o15llgati6'n; '(b) the Business is solvent and in
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, "goOd standing in the State of its organizatiori;'"(i:) it-'is"Iiofthe present intent of the BusineSs' to
"seek protection under any b3nlauptcylaws; (d) 1ts'Ri:Ceivablefareand that they will be at 'the:
, time of their creation, bona fide and existiligobligationS of Customers of the Business arising 'out
" of itS : SaleS or seiViceS; free and clear of allsedirify'irifurests;..liens;arid' claimS' wbatsoeverof
, third 'parties; (e) the docinnentation under which- the ReceiVableS are payable authorize the payee:
, ' thereof to charge, collect and receive interest at 'the' 'rate' provided in such docUmentation; (t) all
Receivables and all documents and practices 'related 'thereto comply with all applicable federal,
, and state laws; (g)' the R..re,ivalUes-wilLhe paid ,by '.eastemers prior to the date of ""qull~, '
repUrchase or will be repurchased by the Business pursuant to Sections 3.1 and 3.2 hereof; (h) the
'collateral in which' a. security interest is granted in Section 3.3 hereof or in any Additional
Security Documents is not subject to any other security interest, lien or encumbrance whatsoever
(except in favor of the Bank), and that the Business will not permit such coUateral to become so
encumbered without the Bank's prior written consent; and (i) the Business's inventory is not
subject to any security interest, lien or encumbrance whatsoever and that the Business will not
permit its inventory to become so encumbered without the Bank's prior written consent.
4.2 Covenants. The Business covenants that (i) it will allow the Bank to review and
inspect during reasonable business hours, and the Business will supply, financial information,
financial records, and documentation on the Business, any guarantors, or any Customer upon the
Bank's request; (ii) with respect to each Receivable as it arises: (a) the Business will have made
delivery of the goods and/or will have rendered the services represented by the Invoice, and the
goods andlor services will have been accepted; (b) the Business will have preserved and will
continue to preserve any liens and any rights to liens available by virtue of the sales and/or
services; (c) the Customer will not be the Business's affiliate; (d) the Bank's copy of the Invoice
will be genuine and will comply with this Agreement; (e) the Business will have no knowledge
of any dispute or potential dispute that may impair the validity of the transaction or the
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Customer's obligation to the related Receivable in accordance h its terms; (f) t.he Business
will have the right to render the services and/or to sell the goods creating the Receivable, and win
do so in accordance with all applicable laws; (g) the Business will have paid or provided for the
payment of all taxes arising from the transaction creating the Receivable; and (h) the Receivable:
will not be subject to any deduction, offset, defense, or counterclaim; (iii) the transactiom:
contemplated in Section 2.1 hereof are account pw:chase transactions, the Business will reflect
such transactions in its accounting books and records as absolute sales of Receivables to the:
Bank, and the Business will reimburse and indemnify the Bank for all loss, damage and
expenses, including reasonable attorneys' fees, incurred in defending such transactions as
absolute sales of Receivables, or as a result of the recharacterization of such transactions; and
(iv) in the event of the commencement of any proceeding under any bankruptcy or insolvency
, laws by or against the Business, the Business will not oppose or object to any motion by the
Bank seeking relief from the automatic stay provisions' of such laws with respect to the Reserve
or the Reserve Account or to any motion by the Bank with respect to the Receivables.
SECTION 5: ,FORMS AND PROCEDTffiES: RESPONSIBILITY FOR USE
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5.1" Forms and Procedures.' The Business will use oD.ly forms, agreements, and
advertising materials supplied or approved by..the:,Bank,inconnection with the Receivables; and
will follow all procedures that ate satisfactory,tothe.Bank in cOnnection with the use'of'such
..forms, agreements,'and advertising materials:,,;;; +"'iC. ')0 .rll'Jtl;:. ,,,j; . ':;'., <!'.. "';'1(", ':f:
,;-(.',5.2 ;" Responsibility. The Business'~wi1l ~be :'sole1y!!responsible-'for;the ~adeqUacy,
'completeness'and'accuracyoftheraw dawrelating .to the;Receivables,its preparation'in theform
. . required 'and. its transmission to the Bank,'and.wi1l'mdemnify'and;hold the Bank,' its'contractors,
.. and .their., respective agents and employees: haniilcss:frOrrt{and"pay'aJJreas'onable attomeys'ifees
\. ;with respect to):an:y claim or liabilitysusta,inec!. li~virtue'ofitctfng.in'l'eliimce upori'datai ft:iii:rlslied
'.: by'the BuSiness,. .;"The Business understands.thiit"fueiifOrn1'ofcredifapplicationand iigreementiilil.d
h other::documentatioDrthe Bank ;sripplies:Jto"'the~ailsiness}shou1'd'be reviewed fly-' the: BuSineSs~s
'\cOunSeI>:~. "the- Bank:' malcesino :represtintatioh ~or'..Warriulty~agJtof:thefr. enforceability\iriJ1the
(l :Business's i state' or theircomplianCClwitlttapplitablcYfecIerlU" ilnd~state' laws. 'The iBank: aild'the
Business agree that the Bank is the owner of all Receivables purchased by;the Bank hereunder,
'andthat all activities of the Bank in eonnection'with 'thecOlIectioD:' of Receivables, generation of
. information, and processing ofdata,iirforthecliccOunt of the' Bank's own: affairs; and that,the
, infotmation generated in connedtiontherewith is the property of the Bank. The Business;will
indemnify and hold the Bank, its contractors, and their respective agents and employees' harmless
from (and pay all reasonable attorneys' fees with'reSpectto) any loss or claim involving breach of
wartanty or representation by the BusineSs and from any'lossor'claim by any Customer relating
to goods and/or services (or the manner or type of their sale or provision) giving rise' to
Receivables purchased by the Bank hereunder.
SECTION 6: POWER OF ATTORNEY
The Business appoints the Bank as its attorney-in-fact to receive, open, and dispose of all
mail addressed to the Business pertaining to Receivables; to endorse the Business's name upon
any notes, acceptances, checks, drafts, money orders, and other evidences of payment of
Receivables that may come into the Bank's possession, and to deposit or otherwise collect the:
same; and to do all other acts and things necessary to carry out the terms of this Agreement. This
power, being coupled with an interest, is irrevocable while any Receivable owned by the Bank
shall remain unpaid.
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SECTION 7: APPLl .,LE LAW'
This Agreement shall be governed by, construed and enforced according to the laws of
the State of Pennsylvania.
SECTION 8: DEFAULT
8.1 Events of Default. The following events will constitute a default (a "Default")
under the terms of this Agreement: (a) the Business fails to pay the Repurchase Obligation or any
other payment obligation of the Business under this Agreement on demand or the Business fail~s
to pay any indebtedness of the Business owed to the Bank pursuant to its tenus; (b) the Business
breaches the representations set forth in Section 4.1(d) or fails to turn over remittances on
Receivables to the Bank in accordance with Section 2.4 hereof; (c) except for the obligations
described in Sections 8.1 (a), and 8.1(b) hereof, the Business fails to perform any obligation.
covenant or liability inconneetion with this Agreement within ten (10) days after the date that
written notice thereof is given to the Business; (d) any warranty, representation or statement
whenever made by the Business in connection with this Agreement proves to be false in any
material respect when made, or the Business fails to disclose to the Bank that any such warranty"
representation or statement has become untrue in any material respect; ( e) dissolution or
termination of the Business if the Business is a corporation, partnership, or other entity, or if the
Business is an individual, the death of such individual; (f) the Business's insolvency; (g) the
assignment for the general benefit of the Business's creditors, the appointment of a receiver or
trustee for its assets, the commencement of any proceeding under any bankruptcy or'insolvency
laws by or against the Business or any proceeding for the dissolution or liquidation, settlement of
claims against or winding up of its affairs; (h) the termination or withdrawal of any guaranty for
the Business's Obligations; (i) the Business fails to pay when due any tax imposed on it or any
tax lien is filed against the Business or any of its assets; 0), any judgment against the BuSiness
remains unpaid, unstayed on appeal, undischarged, unbonded or undismissed for a' period of
thirty (30) days; (1<) the Business discontinues its business as a going concern; or (1) the Bank in
good faith deems the prospect of the Business's payment or performance of its Obligations to
have been impaired.
8.2 Effect of Default. Upon the occurrence of any Default, in addition to any rights
,the Bank has under this Agr.......Il1Pnt -a.r ~pplir<>bIelaw, the Bank may immediately terminate this
Agreement, at which time all Obligations the Business owes to the Bank will immediately
become due and payable without notice, and the Bank's obligations to the Business hereunder
will cease. After the occurrence of a Default, the Bank will have the right to withhold any
further payments to the Business, and none of the Bank's rights or collateral will be adversely
affected thereby.
SECTION 9: NON-LIABILITY OF BANK: RELEASE
Except for a breach by the Bank of this Agreement, the Business hereby releases,
discharges, and acquits the Bank, its officers, directors, employees, p;micipants, successors and
assigns from any and all claims, demands, losses, and liability of any nature which the Business
ever had, now or hereafter can, shall or may have in connection with or arising out of the
transactions contemplated herein or the documentation hereof. In addition to the provisions of
this Section and Section 5.2, the Bank shall not be liable for any indirect, special or
consequential damages, such as loss of anticipated revenues or other economic loss in connection
with or arising out of any default in perform<\Ilce hereunder or other matter arising herefrom,
Nor shall the Bank be liable for any errors of judgment or mistake of fact when acting as the
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Business's attorney-in-1 pursuant to ,SectioJl 6, or liable fo~ , j in the perfor;mance,of the
Bank's duties caused by strike, lawsuit, riot, civil disturbance, fire, shortage of supplies or
rnaterials, or any other cause reasonably beyond the Bank's control.
SECTION 10: EFFECTIVE DATE: TERMINATION: BINDING EFFECT
This Agreement will be effective when accepted by the Bank, and will continue in full
force and effect until the earlier af: (a) one year after the effective date of this Agreement; or 0J)
sixty (60) days after written notice of termination has been given by ane party to the other (in
each case subject to immediate termination upon a Default); and the term of this Agreement will
automatically be extended far periods of ane year each following its otherwise schedule,d
termination, subject to Section 8.2 above and to the parties' rights toO terminate this Agreement
under clause (b) of this Section 10. Upon terminationafthis Agreement, the Business. will pa.y
all of its Obligations toO the Bank; and in any event the Business will remain liable to the Bank
for any deficiency remaining after liquidatian of any collateral; and the Bank may withhold any
payment to the Business unless supplied with an indemnity satisfactory to the Bank. This
Agreement shall bind the Business and the Business's heirs) executors, successors and assigrls
and shall inure tothe benefit of the Bank and the Bank's successors and assigns. The Business
agrees that the Bank may delegate its duties hereunder, but that the Business may not do sa
without the Bank's prior written consent. .
SECTION '11: ATTORNEY'S FEES: PAST-DUE ,OBLIGATIONS: WAIVER~
SEVERABILITY: HEADINGS: ENTIRE AND CONTROLLING AGREEMENT.
NOTICES: COUNTERPARTS
The Business will pay all reasonable expenses incurred by ,the.:Bank inconnecfton;witb.
the execution of this Agreement, mcludmg expenses incurred in connection with the' filing of
tiriancing statements, continuation statements and record. searches. "Al1;past:-due~obligations of
the Business arising under this Agreement shall bear interest at the maXimum nonusurious rate
permitted under applicable state or federal law. The Business hereby waives grace; demand
(other than demand pursuant to Section 3.2 hereof), presentment for payment, notice of dishonor
or default, notice of intent to accelerate, notice of acceleration, protest and notice of protest and
diligence in collecting and bringing of suit against the BuSiness... Upon liquidation .of ,any
collateral, settlement or prosecution of a dispute with any Customer, or enforcement of any
obligation of the Business hereunder, the Business will pay to the Bank, and the Bank may
charge to the Business's account, all costs and expenses incurred, including reasonable attorneys'
fees, and such costs, expenses and fees shall constitute part of the Business's Obligations. No
delay or failure on the Bank's part in exercising any right, privilege, or option hereunder shaH
operate as a waiver of such or of any other right, privilege, or option, and no waiver, amendment
or modification of any provision of this Agreement shall be valid unless in writing signed by the
Bank, and then only to the extent therein stated. Should any provision of this Agreement be
prohibited by or invalid under applicable law, the validity of the remaining pravisions shall not
be affected. The headings herein are far convenience only, and shall not define or limit the
scope, extent, meaning or intent of this Agreement. This Agreement embodies the Business's
entire agreement as to its affiliation with the Bank's Business/Manager program, although the
Business anticipates that the Bank will subsequently outline certain depository and other bank
procedures. In the event of any inconsistency between this Agreement and any other agreement
signed by the Business and the Bank in connectian witli this Agreement, including without
limitation, any Additional Security Documents, the terms and provisions of this Agreement shall
control and the terms and provisions of any such other document shall be ineffective to the extent
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, of any such inconsiste. Any notice, 'request or demand to be _ len hereunder will be deemed
to be given when deposited with a delivery service addressed to, or sent by registered or certified'
mail to, the address of the recipient listed at the beginning of this Agreement. This Agreement
may be executed in multiple counterparts, which when taken together shall constitute one and th'e
same Agreement.
SECTION 12: SPECIAL STIPULATIONS
TIffi UNDERSIGNED ACKNOWLEDGES THAT THIS AGREEMENT CONTAINS A
RELEASE OF CLAIMS'AND WAIVERS OF CERTAIN RIGHTS, AND THAT THIS
AGREEMENT HAS BEEN FULLY UNDERSTOOD PRIOR TO EXECUTION.
BUSINESS:m~' Inc.
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o Copyrigh' 1996 by Pri.... Business, Ine. All Rights Rcsc:ved. Braine.uIManag<"" is a rogisteted tndemarlc of Private Business, Inc.
0896.PB[ Section 3.Il\:Viscd by PellllSJ'lvania Slate Bank 0896. '
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PROMISSORY NOTE
Borrower: Slr..fgard. Inc. (TIN: 25-1628665)
405 Helser lzlne
Carlisle, FA 17013
Lender: PENNSYl.VANIA STATE BANK
Camp Hili
2104S Markst Street, P.O. Box 487
Camp Hili. PA 171101-Q487
Principal Amount: $425,000.00 Interest Rste: 0.000% Date of Note: December 10, 1997
PROMISE TO PAY, Slreetgard.lnc. ("Borrower'" promises to pay to PENNSYLVANIA STATE SANK ("Lender"), or order, In lawful money of the
Unlled States of America, on demand, the principal amount af Four Hundred Twsnty Five Thousand & 001100 Dollars ($425000 Oll) or so much
as may be outstanding, together with Interest at the rala of 0.000% per annum on the unpaid outstanding principal balande oi e'ach advance,
In.terest shalt be calculated from the date of each advance untu repayment 01 tach advance.
PAYMENT, Borrower will pay this loan Immediately upon:t,.ender', demand. Interesl on this Note is computed on a 365/365 simple interesl basis'
that l~, tly applying the ratio of the annual, Interest rate over the number of days In a year, multfplled by the outstanding principal balance. multiplied b~
Ihe actual number of days Ihe principal balance Is outstandlng~ Borrower will pay Lender at Lender's ad"dress shown above or at such olher'place as
Lender may designate In wrlllng. Unless otherwIse agreed or requIred by applicable law, payments will be applied firslto accrued unpaicl interest then
10 principal, and any remaining amount 10 any unpaid collection costs and la,t8 charges. '
DEFAULT. Borrower will be In default If any of the following happens: (a) Borrower falls to make any payment when due. (b) Borrower breaks any
promise Borrower has made 10 Lender, or Borrower falls 10 comply with or to perform when due any olher term, obligation. covena"I~. or condillon
contained In this Nole or any agreement related to this Note, or In any other agreement or loan Borrower has with Lender. (cl Borrower jjefaults under
any loarl. extension of credit, security agreement, purchase or sales egreement. or any other agreemenl, In favor of any other creditor IJr person Ihat
may materially affect any of Borrower's property or Borrower's ability to repay this Note or perform Borrower's obligations under this Notet or any 0/ the
Related Documents. (d) Any representation or statement made or furnished to Lender by Borrower or on Borrower's behalf is fatse or misleading in any
material respect either now or at Ins Ume made or furnished. ee) 8oI'Towar becomes Insolvent, a receiver Is appointed for any part of Borrower's
property, Borrower makes an assignment for the beneftt of creditors. or any proceeding Is commenced either by Borrower or against Bl,rrower under
any bankruptcy or Insolvency laws. (f) Any credllor trles 10 take any of Borrower's property on or In which Lender has a lien or security interest. This
includes a garnishment of any of Borrower's accounts with Lender. (g) Any guarantor dIes or any of !hs'other'events described In this default sectlon
occurs with respect to any guarantor of this Note. (h) A material adverse change occurs In Borrower's financial conditton. or Lende!' believes the
prospect of payment or perlormance of Ihe Indebtedness Is Impaired. 0) Lender In good faith deems Itself Insecure.
If any default, other than a default In payment, Is curable and It Borrower has not been given a notice of a breach of the same provision of Ihis Note
within the preceding twelve (12) months, It may be cured (and- no event of default will have occurred) If Borrower, after receiving written notice from
Lender demanding cure of such default: (a) cures the default within fifteen (lei) daysj or (b) If the cure requires more than tilteliln (15) days,
immediately Inlllates sleps which Lender deems In Lender's sole discretion to be sufftclant to cure Ihe default Bnd thereafter conUnues and compleles all
reasonable and necessary steps sufficient to produce compliance as soon as reasonably practical.
LENDER'S RIGHTS. Upon default, Lender may, after giving such notices as required by applicable law, declare the entire unpaid principal balance on
Ihis Nota and all accrued unpaid Inlerest Immediately due, and Ihen Borrower will pay Ihat amount. Lender may hire or pay someonE! else 10 help
collect !/'liS Note if Borrower does not pay. Borrower also will pay Lender that amount. this Includes, SUbject to any Ilmlls under 8"pUcable law,
Lender's attorneys' fees and Lender's legal expenses whether or not there Is a lawsull, IncludIng attorneys' tees and legal expenses I(lr bankruptcy
proceedings (including efforts to modify or vacate any automatic stay or inJunction), appeals. and any anllclpated post-Judgment collection services. If
not proHibited by applicable law, Borrower also wlll, pay any court costs. In addlHon to all other sums provided by law. U Judgment is entered in
connection with this Note, Interest will conllnue to accrue on this Note after Judgment althe exlstlng Interest rate provided for in this Notl;:l. This Note
h8S been delivered to Lender 8nd 8ccepted,by Lender In the CommonwnUh of Pennsylvtlnla. If there Is a tawsult, Borrower agrees upon
Lender'$ request to submit 10 the JuriSdiction of the' courts of Cumberland County, the Commonwealth of Pennsylvania. This ~lote~shalt be
governed by and construed In t1ccordance with the laws of the Commonwealth of Pennsylvania.
DISHONORED ITEM FEE. Borrower will pay a fee 10 Lender 01 $20.00 If Borrower makes a payment on Borrower's loan and the check or
preautharized charge with which Borrower pays Is laler dishonored.
RIGHT OF SETOFF, Borrower grants to Lender a contractual possessory securily interest In, and hereby assigns, conveys, delivers. pledges, and
lransfers to Lender all Borrower's righi, lIt1e and Interest In and to, Borrower's accounts with Lender (whether checking, savings. o,r some other
account). including without Iimilation all accounts held Jolnlly with someone else and all accounts Borrower may open in the fulure. exclu1jing however
all IRA and Keogh accounts, and all trust accounts for which the grant of a security Interest would be prohibited by law. Borrower authori2:es Lender, to
the extal'lt permitted by applicable taw, to charge or setoff all sums owing on this Note against any and all such accounts.
LINE OF' CREDIT. This Note evidences a revolvfng line of credit. Advances under this Nota may be :requested only In writing by Borrower or as
provided in this paragraph. All communlcattons. Instructions. or directions by telephone or otherwise lo~Lender are to be directed to Lender's office
shown above. The following party or partIes are authorized as provided In this paragraph to rec;uest' aavances under Ihe line of credit until Lender
receives from Borrower at Lender's address shown above written notice of ravocaDon of thelr-authorlly: John K. Rich, President. Advllnces on the
Line will be based on 100'% of Invoice. Proceeds of such advances, less the service charge and reserve amounts, will be de~posUed Into
checking account '151...0814-5 at Pennsylvanltl State Bank. Borrower agrees to be nable for ail sums either: (a) advanced In accordlance with the
instructions of an authorized person'or (b) credlled to any of Borrower's accounts with Lender. The unpaid principal balance owing 01' this Note at
any time may be evidenced by endorsements on this Note or by Lender's Internal records, Including dally computer prlnt-ouls. Lender will have no
obligation 10 advance funds under this Note If: (a) Borrower or any guarantor Is In defau" under the terms of this Note or any agreement l',hat 8orrower
or any guarantor has with Lender, Including any agreement made In connection with the signing of this Note; (b) Borrower or any gual'anlor ceases
doing business or Is insolvent: (c) any guarantor seeks. claims or othelWlse attempts 10 limit. modify or revoke such guarantor's guaranta,s of this Note
or any of her loan with Lender; (d) Borrower has applied funds provided pursuant to this Note for purposes other than those authorized I:JY Lender; or
(e) Lendsr in good faith deems Itselt Insecure under this Note or any other agreement bet'-Neen Lender and Borrower,
ANNUAL REVIEW. The Loan commitment will expire one year from the date the Note and Business Manager Merchent Agreement ~lre executed,
Lender .....1lI review the Loan annually fOf renewals and extensions; such renewals and extenstons to be granted predicated on the per/ormance 01 the
company and guarantors and adherence to the Business Manager Merchant Agreement.
RESERVE ACCOUNT. Lender will retain a len percent (10.00%) reserve of the face amount of each receivable purchased. The retainag,:! amount will
be deposited Into Money Market Account 1920-0132-<J at Pennsylvania Slate Bank. Excess retainage shall be disbursed on the 15th an<j Ihe last day
of eao~ rOonth. jiii. .. '
BANKING RELATIONSHIP, You shall maintain your primary deposit account relationship with Pennsylvania Stale Bank.
FINANCIAL STATEMENTS. Furnish Lender with, as soon as possible, bulln no evEint later than one hundred twenty (120) days aller the end ot each
fiscal year, Guarantor's personal Rnanclal statement and federal Income lax return. AU flnanclal reports req,ulred to be, provided under thiS Agr,eemenl
shall be praparad In accordance wllh generally accepted accountlng principles, apptlled \.In consistent bS.SIS, and certIfied by Guarantor as being Irue
and correct. ~
ADVANCES. Advances on the LIne wilt' be base~ gn t09,~_ 9t InyoI9,!~ ~~qs~f!9.~ of sucn adVances, less the dIscount and reserve ar,i()l.ints. wlii be
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. 12-10_1997, ,.,,",' "."",,,,,,, '"~!;I;iii-,.'::ERO. Jfl.1ll ' XJiP;r~~.'.;""'i,"'.b..'.""
Loan No 5900311-99' ;-"y~~ritQn~dF~>' ':.,jo,"" '
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BORROWER FOR 1HE; ENTIRE PRINCIPA!i;:BMAili:i:-di;l\iiTs '~~2iliJl3ii~~gr.,~Ta' CHAAGES; ANO AlN AND ALL AMOUNTS
EXPENDED OR ADVANCED'BV,LENDER 'RaAT.lN~TO~ANYl!CoillJi.~~EClliliNGi,TIii1$' NO'll:;TOGEl'HER 'wm; INTEREST ON SUCH
AMOUNTS, TOGETliER' WIl'fi, COSTS,. OF; S\:J11'@J'lcih~!f.>\Ti'ORNEtSIG(jM"lISSI0Ni c;jF>TEl'l'PERCENT (10%) OF THE UNPAID PRINCIPAL
BALANCE AND ACCRUED WTEREST'FOR.COW:CT10N;i!~lJTilN"AI!fI'!:i:VEN:r"',j01; LEssi'lllAN ,FIVE, HUNDRED DOLLARS ($500) ON WHICH
JUDGMENT OR JUDGMENTS ONE OR I,lORE EXEC!!ll10NS',MAV:ISS[JEHMMEQIATEf;"i"~:FOR'SI:lOOING, THIS, NOTE OR A COF'Y OF THIS
NO'll: VERIP1EO BVAFFIDAVlT' SHALl. B&i'3UP1'1CIEN;IWARRANT~E;Au:rHOFilTf,.G~N'THIS. NO'll: TO CONFESS ,IUDGMENT
AGAINST BORROWER S~ NOT BE EXHAUSTEO:BViJ,NV EXERCI$E,OF.THATiAtiTHORliViBur SHALl:. CONTINUE FROM TIME TO TIME AND
AT ALL TIMES UNTI~'PAYMENT; IN ,FULL OF'AlL'AMOUNTS DUE UNDER THIS NbT'ElfBOflROWERiHEREBV WAIVESANV RIGI-lT BORROWER
MAY HAVE TO N011CE Ofl TO A HE.A:flING)N. C~NNl!CT.!ON~m;,A/II'l!i,aUCH.CCNF.J5SSICNCF JUDGMENT, EXCEPT AIN NOTICE AND/OR
HeARING RECUIRED UNDER ,i;pI'l.ICAm:E t:AW"WlTH-,RE:t.>:ECT'TO EXECU'I'ION'OF THE "JUDGMENT. AND STATES THAT EITHER A
REPRESENTAT1VE OF LENDER SPECIP1~V;c.oueP;,THls:eONl'ESSION'OF JUDGMENT PROV1SION TO BORROWER'S ATTENTION OR
BORROWER HAS BEEN REPRESENTE;D BY INDEPENDENT LEGAL COUNSEJ:;c.. '(' ' , '
PRIOR TO SIGNING THIS NOTE, BORROWER READ AND UNDERaTOOC IlL\. T111E PROVISIONS OF THIS NOTE. BORROWER AGREES TO
THE TERMS OF THE NOTE AND ACKNOWLEDGES RECEIIlT OF A COM~1-lITEll C(lPV OF THE NOTE.
Page 2
THIS NOTE HAS BEEN SIGNED AND SEAl.ED BY THI' um:ERSIGN;!D.
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MODIFICATION ADDENDUM TO THE BUSINESSlMANAGER@
AGREE.MENT WITH aUSINESSES AND PROfE8810NALS
Upon lilnJtlll'e by both partie., the BUline-s4lManag'~ Agreement with B\U.lneucI l1ld
Prol'culonaJ, altere:<! into U oe the 7th day of JlUIaUJ, 1m, by and bet"-C<OlI
Ptlllwylvaal. Bbttc Ballk(~ "8m") and Srrtctprd. IDe. (tIlt "BualntllJ
Shall hCTOlby be modl.n,d ~ provide the followlnli:
Tho nut 'cnt~ne. o!li:.c:ti,," 2,1 Alliqnment and 1l,1. .J..II 1M cIalcled md I"QI""cd "..;l!t
the: followilli:
The Bank hereby pureluc= from the: BUJineu llI1d tha BUll.... hc:rc:by ImiIJU and :lelh
to the Bank u absolute owner, the Blulncu'l enurd inlanrlt isi such ofib C\ln'CIItIy
outstandlllg ~ivtblC:l as are delCl'lbed on attached Exllibf12, J. as \WillS Its f\rturtI
Rccc:inhlas ,C)'l_ted. by tmoiQC1l it <kllvcn to tho Bank; provld9d. he_, that..t no
time shall the total euutandlll! F&Oe AmOl.lllt of RJlc.;v,bllla purchucld by dill BWe.
lIX~ S 681,otO.oG IlIll_ .~ to by the Bank.
This ModIficllion Addeadum ahall be effective U of tho ... day ot 11Z\1l&ly. 19991l1d
gxpins on thll291lt day of JII11IW'y, \999.
All other ferm.lIDd pcovialeru ofthc BUlitlC55lMQllQg'~ AV_1t with BusinesSC3
and Profft.!cll1a!a shall ((maln In tull force Uld cff.ct.
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73181076
f1Y-03 99 16: 09 FROM: PA STATE-"<<
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73181076
TO: 2"58" . ;7
MODfFICATION ADDENDt:M TO TIlE BUSINESS!MA^'AGER"'
AGREEMENT
wrm BUSINESSES AND PROFESSIONALS
Upon aignntu~ by bothpar1i4s. lhe BwinculMan<1ltr Agreement with 9usiIlO5ll..' o.nd
Profoll8ionab entered Into &8 of the 3(l(h day of April, 1999. by Md bslwUll
PllnnlylvllIliaState B.m: (the "Ba.nk"")llrId Strtc:tiMd (the "But!~''') sh.Il ho~by bc
modified 10 fl'Ovidethe followina:
Theflnt sentenCc ofS<<;tion 2.1 A~aiqnm~nl a,nd Sal. shAll be deleted..nd t<<plllCtld with
the follow1I1&:
The Bllnk h.et-ebr pun:J1,a.Ks from the B~Il<tU r.n4 the BJ.aiM~ heroby ut{lM and seU,
10 the Ban}; u absolute owner, the BlIlnllc..', cmlT$lntnnt In,luc:b of ill c=mly
(lutJtMdillg R.eariv.blllC sa are d.$Cri~d 011 .nached ExlUbit 2.1 withhold1ne 25%
ILgalnat 11Q1I-pf.ym<<!l,1S WIllItS iu ~ P.eeei....bl~ r<lJ't'llKnt<<d by [nvoi<J4rt it deliv<<n
:0 the Bankj ~ howcvor, \hat at no tbne shall the total oublanding Pace AmOlalI
DC ~iV&bICl~ by the Bank C1xCMd $720,000.00 unlea &ireed to by tM Btnlc.
Thi. Modifig&tlon AddcIldum IhaIl be .l't~VC1 u of the 30th dcy of April. 1999 and
cxpirl QI1 1M ] lat day at July. [999.
All 01'* IctmS and pro11isi~ of the BIaina~Mcmae-e,. Aartement with BUlineu<ls IUld
Pro(cafollllb sball reuuUlI in 1\111 force &lid effect.
BANK .l;SIN"E3~
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Title Ii
5 - ~. 99
.r:-7J'-9 J1
Date
De.tlo1
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PROMISSORY NOTE
Borrower: Slreelgard, Inc. (TIN: 25-1828665)
405 Helser lane
Carlisle, PA 17013
Lender: PENNSYLVANIA STATE BANK
Camp Hili
2148 Market Street, P.O. Box 4a7
Camp Hili, PA 17001-<l4a7
Principal Amount: $95,264.22 Initial Rate: 9.750% Date of Note: Jun,: 10, 1999
PROMISE TO PAY. Streetgard, Inc. ("Borrower") promises to pay to PENNSYLVANIA STATE BANK ('1.ender") or order In lawful money at the
United Stales 0' America, the principal amount of Ninety FIve Thousand Two Hundred Sixty Four & 22/100 O~nars ($95,264,22), tClgelher with
Interest on the unpaid principal balance from June 10, 1999, until paid In full.
PAYMENT. Borrower will pay this loan on demand, or 11 no.:demand Is made, In one prtnclpal payment at $95,264.22 plus Interest on June 10,
2001. This payment due June 10, 2001, will be for all principal and accrued Interest not yet paid. In addltlon, Borrower will pay regUlar
monthly payments of aU accrued"unp.e:ld Interest l;fue as of 'each payment date, beginning July 10, 1999, with all SUbsequent lnterut payments
to .be due on the same day of each month 8fter that. Interest, on this Note Is computed on-s 365/365 simple Interest basis: that Is, by applying the
raho of the annual1nlerest rate over the number of days In a year, multiplied by the outstanding principal balance, multiplied by the aclUlll numbsr of
days the pnnelpal balance Is outstanding. Borrower will pay Lender at Lender's address shown above or at such other place as Lander m.ay designate
In writing. Unless otherwise agreed or required by appllcable/aw, payments will be applied f1~t 10 accrued unpaid Interest then 10 principal and any
rem~inlng amount to any unpaid collection costs and late charges. "
VARIABLE INTEREST RATE. The Inlerest rale on Ihla Note Is subject 10 change ~om Ume 10 lime based on changas In an Ind.. which Is the
Pennsylvania State Bank's Base Lending Rate (the 'ndex"). The Index Is not necessarily the lowest rate charged by Lender on Its loans !lnd Is set by
Lender in its sole discretion. If the Index becomes unavailable during the term of this loan, Lender may designate a subslllute Index atter notifying
Borrower, Lender will tell Borrower the current Index rale upon Borrower's request. Borrower unde~tands that Lender may make loans based on.
other rates as well. The Intarest rate change will not occur more otten than each Day. The Index currently Is 8.000% per annum. The Interest rate
to be epplled to the unpaid principal balance of this Note will be at a rate of 1.750 percentage points over the Index, resultlng In an Initial rale
of 9.7500.4 per annum. NOTICE: Under no clrcumstances will the Interest rate on Ihls Note be more than the maximum rate allowed by applicable law,.
PREPAYMENT. Borrower may pay without penalty all or a portion of the amount owed earlier than it Is due. Early paymenls will not, unless agreed 10
by Lender in wrillng, relieve Borrower of Borrower's oblfgalfon to continue to make payments under the payment schedule. Rather, they will reduce the
principal balance due.
LATE CHARGE. II a payment is 15 days or more late, Borrower will be charged 10.0QO% of the regularly scheduled p.e:ymenl or $50.00,
whichever Is greeter.
DEFAULT. Borrower will be in default if any of the followIng happens: (a) Borrower falls to make any payment when due. (b) Borrower breaks any
promise Borrower has made to Lender, or Borrower fails to comply with or to perform when due any other term, obligation, covenant, or condiUon
contained in this Note or any agreement related to this Nole, or In any olher agreement or loan Borrower has with Lender. (c) Borrower d~lfaults under
any loan, extension of credit, security agreement, purchase or sales agreement, or any other agreement, In favor of any other creditor or person that
may materially affect any of Borrower's property or Borrower's ability to repay this Note or perform Borrower's obligations under this Note I)r any 01 the
Related Documents. (d) Any representation, or statement made or furnished to Lender by Borrower or on Borrower's behalf Is false or misleading in any
material respect either now or at the time made, or furnished. (e) Borrower becomes Insolvent, a receiver Is appointed for any part of Borrower's
property, Borrower makes' an assignment for the benefit of creditors, or any proceeding Is commenced either by Borrower or against Borrower under
any bankruptcy or insolvency laws. (f) Any creditor tries to lake any of Borrower's property on or In which Lender has a lien or security interes!. This
includes a garnishment of any of Borrower's accounts with Lender. (g) Any guarantor dies or any of the other events described in this dElfault section
occu~ with respect to any guarant,or of thIs Note. (h) A material adverse change occurs In Borrower's flnanctal condillon, or .Lender believes the
prospect of,payment or perlormance of the Indebtedness Is Impaired. (I) Lender in good falth deems Itself Insecure.
If any default. other than a default In payment, Is curable and If Borrower has not been given a nottce of a breach of the same provision of this Note
wilhin Ihe preceding twelve (12) months, It may be cured (and no event of default wlU have occurred) If Borrower, after receiving writterl notice from
Lender demanding cure of such default: (a) cures the default within nfteen (15) days; or .<b) If the cure requires more than fifteen (15) days,
Immediately InlUates steps which Lender deems In Lender's sole dlscretfon to be sufficient fo cure the default and thereafter continues and l:ompletes all
reasonable and necessary steps sufficient to produce compliance as soon as reasonably practlcal. .
LENOER'S RIGHTS. Upon default, Lender may, after gMng such notices as required by applicable law, declare the entire unpaid principsJ balance on
this Note and all accrued unpaid Interest Immediately due. and then Borrower wlU pay that amount. Lender may hire or pay someone else to help
collect this Note If Borrower does not pay. Borrower also will pay Lender that amount. This Includes, subject to any limits under applicable law,
Lender's attorneys' fees and Lender's legal expenses whether or not there Is a lawsuit, Including attorneys' fees and legal expenses fOi" bankruptcy
proceedings (Including efforts to modify or vacate any automatic stay or Injunction), appeals. and any antlctpated post-!udgment collection services, If
not prohibited by applicable taw, Borrower also will pay any court costs, In addlUon to all other sums provided by law. If Judgment is entered in
connection with this Note, Interest will continue to accrue on this Nota after Judgment at the Interest rate 'applicable to this Nole at the lime: judgment is
entered. This Note has been delivered to Lender and accepted by Lender In the Commonwealth of Pennsylvania. It there Is a l.awsult,
Borrower' agrees upon Lender's request to SUbmit to the )urtscUcUon at Ihe courts of Cumberland County, the Commonwealth of Plmnsylvanla.
This Note shalf be governed by and construed In accordance with the laws of the Commonwealth of Pennsylvania.
DISHONORED ITEM FEE. Borrower will pay a fee to Lender of $20,00 If Borrower makes a payment on Sorrower's loan and l~e check or
preauthorlzed charge with which Borrower pays Is later dishonored.
RIGHT OF SETOFF, 80rrower grants to Lender a contractual security lnterestln, and hereby assigns, conveys, delivers, pledges, ancl transfers to
Lender all Borrower's right, title and Interest In and to, Borrower's accounts with Lender (whelher checking, savings, or some other accoul11), including
wilhoul limitation all accounls held Jointly with someone else and air accounts Borrower may open In the future, excluding however all IRA and Keogh
accounts. and all trust accounts for which the grant of a security Interest would be prohibited by law. Borrower authorizes Lender, ;:0 the extent
permitted by applicable law. to charge or setoff aU sums owing on this Note agalnst any and all such accounts.
DEFAULT INTEREST RATE. In the event of default for Which the Lender does not acceleratelhe Loan, Including the failure of Borrower te) provide the
financial statements 8$ requIred hereunder or under the Loan Agreement, the applicable Interest rate on the Loan, for a period beginning tllrse (3) days
atter writ1en nollce of such default and ending upon the curing of said nol/ced default, shall Increase one quarter of one percent (.25%) for the I1rstthirty
(30) days of said default and Increase an additional one quarter of one percent (.25%) during each thirty (30) day period thereafter during which tne
noticed default conllnues. Such default Interest rate shall apply to the outstanding princfpal balance o( the Loan, Upon the curing 01' the noticed
default, the inlerest rale on the Loan shall ravert to the InltJalty agreed-upon Interest rate effectIve on the date on which Ihe default is cured.
GENERAL PROVISIONS. This Note Is payable on demand. The InClusion of spaclflGdefault provisions or rights at Lander shall not precllJde Lender's
right to declare payment ollhls Note on itS camand, Lender may delay_.gr forgo enforcing any of Its rights or remedies under this Note wilhoutlosing
them. Borrower and any other person who signs, guarantees or endorses this Nole, 10 the extent allowed by law, waive presentment, demand for
payment. protest and nollce of dishonor, Upon any change In the terms of lhls Note, and unless otherwise expressly stated In writing, no party who
signs this Note, whether as maker, Quarantor, accommQdatlon maker or endorse(, shall be released tram I!abllity. All such parties agree, Iho.l Lender
may rerlew or axtarld (repeatedly and for any lerjglh: pf ~fJ1~) tN~,I-9f1{l, o:rr~_l-M,~~ !try palt)' or guarantor or collateral; or Impair, fail 10 (e~ll1ze upon or
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06-10-1999.,
Loan No 5006.16s.-"o1
( ';~" ::r
"''''.. ""~.di!ROMISSORY,NOTE.",-" a,\i.","'f',
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#-. ^tlJ~E ~X;':~F;1.,>(j~ .i'H"'.,Id~~f~~.!:-Vl~rA. l"-Al~'_~~ 00 I~Ofo.""
Page 2
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HEARING REQUIRED, UNDER APPUCABl.!;rU.w.-,W!l:H! RESp.eC17:,T.O~exEGuno~< G)~ THE' JUDGMeNT, ANO' STATES THAT Erl'HER A
REPRESENTATIVE OF LENDER SPECIFlCAl..LY CAlJ.EO. 111IS CONFES.SION O/t'JUOG.Me:NT1PR0V1SIONTO BORRoweR'S ATTENTION o.R
BORROWER HAS BEEN REPRESENTED BY INOEPENDENl,l.l;G.o\I;.!:OuNsa;, .r'FD ,111~""'-~:' ." ,.~ : .1'/ ,.
PRIOR TO. SIGNINGTHIS.NotE.eo~o.WER Ri!Ac'AND iJiio~s1fqq'bi'.w.Tile:.~RPv1SIONS OF THIS NOTE, INa.UDING THE VARIABLE
~~~~ r:~~'l,VIS;~~S. B$~~,o.~ AGR~,;!:c?'(~~;~r~9~:;.~.~~m-~..e'~S~9.~ECGeS .RECElPT OF A COMI'LETEO
LENOER:
PENNSYLVANIA STATE BANK'-
THIS NOTE HAS BEEN SIGNEC'.v!D SEALED BY,;THl!UNCERSIG!lEC""'"'~""'~"11" 'r.",,"": <;>C': 'I'.:" ';c,,,,, "~c. .
. :,.-, .t".. "'.._' .':~U. ;.l':;l;'~.o; $'I.;":;~lA;tib6~'1 iJ18d.~,~"~~'O!: ~'.o '.'\r;1,~ 'Ir."',' .r! L:'"
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June 25, 1999
John K. Rich
LindaM. Rich
504 Heiser Lane
Carlisle, P A 17013
Re: Streetgard, Inc. accounts #590031199 and 500616801
Dear John or Linda;
Due to the large nwnber of customer billing disputes related to invoices of Streetgard,
Inc. purchased by Pennsylvania State Bank, it is believed that the receipt of these
payments by the Bank is extremely doubtful.
This is an event of default under the Business Manager Agreement and related
Promissory Notes. As such we now declare the entire unpaid principal balance and all
accrued interest due and payable within 15 calendar days of this notice. This amOunt is
$717,790.79 as of to day's date. If certified or guaranteed funds in this amOunt are not
received within that time, legal collection activities will proceed against you.
We regret that these actions are necessary, but the increasing nwnber of disputed invoices
leaves us no choice. You can caB the Bank at (717) 731-7272 if you have any questions.
Sincerely,
Alan Patton
Vice President, Market Manager
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717-796-3165 PA 5TATE BANK OPERAT
804 P02/02 OCT 10 '00' 12:58
Merchant Activity
STREETGARD,INC
01/01100 - 10/10/00
Beginning Balante
$ 588,818.77
Debits: Connt Amount
Sales 0 0.00
Debit Memos 1 1,695.00
Finance Charges 0 0.00
Miscellaneous Fees 0 0.00
Total Debits: $ 1,695.00
Credits:
Payments 4 (4,390.00)
Credit Memos 44 (586,123.77)
Discounts 0 0.00
Returns 0 0.00
Chargebacks 0 0.00
Total Credits:
(641,387.99)
Total Number of Transactions: 49
Ending Balance
so.oo
Total Batches
Total New Cu.tomen
s
o
Created 10110/00 a110:47 AM
PENNSYLVANIA STATE BANK
Page:
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COMME~CIAl GUARANT
Borrower: Streetgard, Inc. (TIN: 25-1628605)
~5 Helser Lane
CarlIsle, PA 17013
Lender: PENNSYLVANIA STATE BANK
Camp Hili
21<<' Maf1<et Street, P.O. Box 481
Camp Hili, PA 17001-0487
Guarantor: John K. RIch and Unda M. Rich
405 Helser Lane
Canlsle, PA 17013
AMOUNT OF GUARANTY. This Is a guaranty of payment of 100.000"" of the Note, Including without IIml1alton the pnnclpal Note amount 01
Four Hundred Twenty Ave ThouSlll1d & 001100 Dollars ($425,000.00).
GUARANTY. For good and valuable cOnslderatlon, John K. Rich and Unda M. Rich ("Guarantor") absolutely and uncondl1lonally guarantee
and promise to pay, Jointly and severally, to Pa/NSYLVANIA STATE BANK ("Lender") or Its order, on demand, tn legal tender of the Unl1ed
Slates of America, 100.000"" of the Indebtedness (lIS thallenn Is deflned below) of Streetgard, Inc. ("Borrower") to Lender on the tenns and
condl1lons set forth In this Guaranly...Guarantor agrees that Lender, In Its sole discretion, may detennlne which panlon of Borrower's
Indebtedness to Lender Is covered by Guarantor's percentage guaranly.
DEFINITIONS. The following words shallha", Ihe following meanings when used in tlUs Guaranty:
Borrower. The word "Sorrowe(', rne:ins Strootgard, loc_
GUMantor. The word "Guaranta(' means John K. RIch and Unda M. Rich, who are slgning Ihis Guaranly jointly and severally.
Guaranty. The word "Guaranly"meai1s tI1lS GUaranty made by Guarantor for the benefit of Lender dated 12/10/97
, . .'.::, ;~;~a.}"'"~A "~,"_, .' .
Indebtedness. The wordJlld'!f:>lE!d~7,-~the Note, Including (a) all prtnclpal, (b) aJI Interest, (c)aJI late charges, (d) aJI 10"" _ and
loan charges, and (e) at coIle9,tIq!!,C;>$;!iJjd..eipenses relating to the Note or to any collateral for the Note;, CollectIon costs am! expenses
. Include wi\hout imitation, at of~~al!c!J1e'/S: feEis and Lende(s legal expenses, whether or not sullls lnstiluled, and allorneys' feEls and legal
expenses for benkrupfcy ~~~~i&I,~;D!Jij.,effor1s to modify, or VllC8te any automatic stay or Infunction);, appeaJs,and any anliclpaled
pos~udg~nt coIIectfo.n. ~~i~' '\j. .fr~ ;:;i'l.,~~. . "''- " ,- :, :.-'.j;:";':;':' c~,; ,.
Lender. The word 'Unde(' ~eeNNS\1-VANIA,srATE BANK,1ls successors and assfgns. ,',.",."~~"... '
Note. The word "N0t8.~'~t$;~. ~ot8 or cread agreement daled 12/10/97: '; i;;~t;,~;;;"'g;N11 prtncfpal.omount of
, ,$425~.oo from Bocrower. ~,,~~:il.~j!.~ )Vil!1,caJI renewals.of, extensions of, mO<fllications of. refinanclngs~of, consolidations of, and
=:.u:..~ for the pro~ \~~%~~rL.",Notlce 10 Guarantor. The Note evidences a revolvlng:Uneof C1'edlttrom Lender to
Related Documents. The w~ds, ~lll<!. Documents. mean and Include without Umllation aJI promlssocy notes, creart agreements, loan
agreements, envlronmental. a~\1tl..:~,.securiIy ag""!menls, mor1gages, deeds of trust, and aJI other,lnstruments; agreelments and
documents, _!her now or, ~ ~'.exscufedln connection willt the Indebtedness.' ,,'" "'V'" ",' , '
MAXIMUM UABIUTY. The maxlmunHlabll1ty of Guarantor under this GUlltllnty shall not exceed at any one Ume 100.000% of the SI1l<)Unt of the
Indebtedness descrtbed abOve, plus all cosls and expenses of (a) enforcement of this Guaranty and (b) collection and sale of lIl11f collaferal
~J1g thIs Guaranty.",,, ',.-'. "
The ~bove timftalio~ on IlabUlly is not a...eslric:tlon on the amount of the Indebtedness of Borrower 10 Lender either In the aggregate or at anyone Hma.
If Lender presently holds one or mOfll guaranties/or' hereafter receives additional guaranlles from Guarantor, the rights of Lender under all guaranlles
shall be cumulative. This Guaranty shaD not'(unless'spedficaIly provldSd below to the conlraty) affect or Invalidate any such other guaranlles. The
liability at \3uarantor WiI\ be \he aggregale'llabUlly'ofGuarantor under the terms ot this Guaranly and any such other unterminated guaranties.
NATURE OF GUARANTY. Guarantoc: Intends to guarantee at all times the performance and prompt payment when due, whether at maturilO{ or earner
by reason of acceleration or otherwis<i, of slI,lndebledness within the timlls set forth in the precedin<;J secllon of this Guaranly. This Guaranty covers a
revolving line of credl1 and gUMantor understands and agrees that this guarantee shall be open and continuous until the line Clf credit Is
lennlnated and the Indebtedness Is paid In full, lIS provlded beloyi. The obligations of Guarani"'" shall be JoInl and several Lender OlJ,y proceed
agalnst any of the Guarant"", IndlvfduaJly, agalnst any group of Guarant""" or agalnst alllhe Guarant"", In one action, without affectin<;J Ihe right of
Lende< to proceed agalnst other Guarant"", for amounts that ere covered by this Guaranly. Any lnabllily of Lende< to proceed agalnst any' Guarantor
(whether caused by actions of a Guarantor or of Lender) will not affect Lender's right to proceed against any or all remaining Guarant"", tor all or part
of !he amounts covered by this Guaranly.
DURATION OF GUARANTY. This Guaranly will lake effect when received by Lender withoutlhe necessily of any acceptance by Lender, or any nolice
to Guarantor or 10 Borrower, and wW continue In full fon:e until aJI Indebtedness shall have been fully and finally paid and satisfied and all other
obrigaHons of Guarantor under this GUS/enly shaD have been performed In full. Release of any olhar guarantor or termination of any other Ilusranty at
the tndebtedness shall not affect the liabtiily of Guarantor under this Guaranty. A revocaHon received by Lender from anyone or more Guamnt"" shail
not affect the IIabllily of any remalnln<;J Guarant"", under this Guaranly. Thts Guaronty covers a revolvIng line of credit ond It Is s"""tflcally
anticipated that nuctuatlons wlU occur In the aggregate amount 01 Indebtedness owing trom Borrower to Lender. Guarantor s:pecJnalty
.5Cknowtedges and agrees that nuctuatlons In the amount of Indebtedness. even to %era doll.'2rs ($ 0.00), shall not constitute a termination of
this Guaranty. Guarantor's liability under this Guaranty shall terminate only upon (a) termination In wrltlng by Borrower lInd Lender of the line
of credit, (b) payment of the Indebtedness In full In legal tender, and (c) payment In full In legal tender of all other obligations of Guaranlor
under this Gu.o.ranty.
GUARANfOR'S Alrn-IORlZATIOH TO LENDER. GuaranlOf authorizes Lender, without notice or demand and without lessening Gu.o.rllnlor's
liability under this Guaranty, from time to Ume-: (a) to meke one or ,"ore oddltlon.al- secured or unsecured 10405 to Borrower I to lease
equipment or other goods to Borrower, or otherwise to extend additional credit to Borrower; (b) to alter, compromise, renew, extend,
~ce'erate, or otherwise change one or more Urnes the time for payment or other terms of the Indebtedness or any part of the Inde!btedness.
Including Increases lInd decreases ot the rate ot Interest on the Indebtedness; extensions m.,-y be repeated and m.sy be for longer than the
orlgln.o.l lo.o.n term; (c) to tmce and hold securtty tor the paymenl of this GUllrllnty or the Indebtedness. and exch.o.nge, enfor,::e, waive,
subordinate, fall o( decide not to perlect. .and rele.ase any such security, with or without lhe substitution ot new collateral; (d) to release,
::.ubstltute, agree not to sue, or deal wlth anyone or more of Borrower'S sureties, endorsers, or other 'Wuarantors on any terms or in ~ny
manner Lender mll"i choose; (e) to determine how, wh~n"a~~ ":Vh~~ 4,pe~I~l!,tl<;,n ;Q( p,6Yments t1nd credits shall be made on the jnde:bledness:
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Loan No 5900311-99
COMMERCIAL GUARANTY
(Continued)
Page 2
(fl 10 apply such securUy and direct the order or manner of sale thereof, Including without limitation, tmy nonjudicial sale permitted by Ihe
terms or Ihe controlling security agreemenl or deed of trust, a.s.Lender In lis. dlscreHon may determine; (g) 10 sell, tranSfer, assJgn, or gran I
participations In all or any part or the Indebtedness; and (h) 10 assign or transfer this Guaranty In whole or In part.
GUARANTOR'S REPRESENTATIONS AND WARRANTIES. Guarantor represents and warrants 10 Lender Ihal (al no representations or agreements
of an)' xind have been made to Guarantor which would limit Of qualify in an)' wa)' the lerms of Ihis Guaranty: (b) lhis Guaranty is executed al
Borrower's request and nol at the request of Lender; (c) Guarantor has full power, right and authority to enler into this Guaranty; (d) the provisions 01
this Guaranty do not conflict wilh or result in a default under any agreement or other instrument binding upon Guarantor and do nol result In a vlolation
01 any law, regulation, courl decree or order applicable 10 Guarantor: (e) Guarantor has nol and will nol, withoutlhe prior wrinen consent of Lender,
sell,lease, assign, encumber, h)'potheca\e, translsr, or othBNIise dispose at at! or substantially all of Guarantor's assets, or any interest themin; (f) upon
Lender's requesl, Guarantor will provide to Lender financial and credit information in form acceptable 10 Lender, and all such financial information
which currently has been, and all future financial intormation which wul be provided to lender is and will be true and correct in all matenal respects and
fairly prasenllhe financial condition of. Guarantor as of Ihe dales the financial information is provided; (g) no material adverse change has occurred in
Guarantor's financial condition since the date of the most recen\ financial statements provided to Lender and no BYent has occurred which may
materially adversely affect Guarantor's financial condition; (h) no litigation, claim, investigation, administrative proceeding or similar aclion (including
those for unpaid taxes) against Guarantor is pending or threatened: (i) lender has made no representation to Guarantor as to the creditworthiness 01
Borrower; and (j) Guarantor has esl8.blished adequate means 0' obtaining from Borrower on a continuing basis information regarding Borrower's
financial co\'\dition. Guarantor agrees to keep adequately intormed from such means of any facts, events, or circumstances which might in an)' way
affect Guarantor's risks under this Guaranty, and Guarantor further agrees that Lender shall have no obligation 10 diSclose to Guaranlor any intormation
or documents acquired by Lender in the course at its relationship with Borrower.
GUARANTOR'S WAIVERS. Except as prohibited by applicable law, Guarantor waives any right to require Lender (a) to continue lending money or 10
extend other credit 10 Borrower; (b) to make any presentment, protest, demand, or notice of any kind, including notice ot any nonpayment of the
Indebtedness or of any nonpayment re/aled to any collateral, or nODee of any action or nonaction on Ihe part of Borrower, Lender, any sure~" endorser,
or other guarantor in connection with the Indebtedness or in connection with the creation of new or additional loans or obligations; (c) 10 resort tor
payment or to proceed directly or at once against any pe.rson. iP,.llIl'fina. R...........,..OU'"~..any-e!bes: guarantor,. (d) 10 proceed directly against or E~ust any
~ held by-Lender from Borrower, any other guarantor, or any other person; (e) to give notice at the terms, time, and place of any public or
private sale of personal property security held by Lender from Borrower or to comply with any other applicable provisions of the Uniform Commercial
Code; (f) to pursue any other remedy within lenders power; or (g) 10 commit any act or omission of any kind, or al any lime, with respecl to any
matter whatsoever.
If now or hereafter (a) Borrower shall be or become Insolvenl, and (b) the Indebtedness shall not at all times until paid be fully secured tlY collaleral
pledged by Borrower, Guarantor hereby forever waives and relinquishes in favor of Lender and Borrower, and their respective successors, any claim or
right to payment Guarantor may now have or hereafter havB or acquire agaJnst BOfTower. by subrogation or otherwise, so that af no time shall
Guarantor be or become a "credilor" of Borrower within the meaning of l' U.S.C. section S47(b), or any successor provision of the Federalllankruplcy
laws.
Guarantor also waives any and all rights or delenses arising by reason of (a) any 'one action" or 'anli-deliciency" law or any olher law which may
prevent Lender from bringing any action, including a claim for deficiency, against Guarantor. before or stier Lender's commencement or completion of
any foreclosure acHon, eilher jud'1ciaI1y or by exercise 01 a power at sale; (b) any election of remedies by Lender which destroys or olherwise, adversely
affects Guarantor's subrogation rights or Guarantor's rights to proceed against Borrower for reimbursement, including without 6mltalion. nny loss 01
rights Guarantor may sufter by reason 01 any law limiting, qualifying, or d'lSCherglng the Indebtedness; (c) any d'lSBbiUly or other delense 01 B,orrower, 01
any other guaranlor, or of any other person, or by reason of the cassation of BOlTowers liability from any cause whalsoever, olher then payment in lull
In legai lender, oflhe Indebtedness; (d) any right to claim diSCharge oflhe Indebtedness on the basiS of unjustified Impairment of any coDaleralfor the
Indebtedness; (e) any stalule of limitations, if at any time any aclion or suil brought by Lender against Guarantor Is commenced there Is outstanding
Indebtedness of Borrower to Lender which is not barred by any applICable stalule of Hmitations; or (Q any delenses given to guarant"", a.ltaw or In
equity other fhan aclual payment and performance 01 the Indebtedness. If payment Is made by Borrower, whether voluntarily or otherwise. or by any
third party, on the indebtedness and thereafter Lender is forced to remit the amount of that payment to Borrower's b"uslse in bankruptcy or to any
similar person under any federal or stale bankruptcy law or law lor the reHel of debtors, the Indebtedness shall be considered unpaid lor the purpose 01
enforcement of this Guaranty.
Guaranto( further waives and agrees not to assert or claim at any time any deductions to the amount guaranteed under this Guaranty for any claim 01
setoH, counterclaim, counter demand, recoupment :or similar right, whether such claim, demand or right may be asserted by the Son-ower, the
Guarantor, or both.
GUARANTOR'S UNDERSTANDING WITH RESPECT TO WAIVERS. Guarantor warrants and agrees that each of the waivers set forth above is made
with Guarantor's full knowledge of its significance. and consequences and thal. under the c:ircumslance$r UKJ.-waIY9F5"'al'Urtla;;,uIlClLtt:t metnot contrary to
public. policy tJr law. It any such waiver is determined 10 be contrary to any applicable law or public policy, such waiver shall be effective emly 10 Ihe
extent permitted by law or pubnc policy.
LENDER'S RIGHT OF SETOFF. In addition to aU liens upon and rights of setoff against the moneys, securities or other property of Guarantor given 10
Lender by law, Lender shall have, with respect 10 Guaranlor's obligations 10 Lender under this Guaranty and 10 Ihe extent permitted by law, a
contractual security interest in and a right af setoff against, and Guarantor hereby assigns, conveys, delivers, pledges, and transfers to Lander all of
Guarantor's right, title and interesl]n and to, all deposils, moneys, securities and other property at Guaranlor now or hereaMer in Ihe possession of or
on deposit with Lender, whether hetd in a general or special account Of deposit, whether held joinUy with someone else, or whether held lor
safekeeping or otherwise, excluding however aU IRA, Keogh, and trust accounts. Every such security interest and right of setoff may be exercised
without demand upon or notice to Guarantor. No security interest or right of setoH s.hall be deemed to have been waived by any act or conduct on the
parl of Lender or by any negleclto exercise such right of setoH or to anforce such security interest or by any delay in so doing, Every right of :ie!oH and
security interest shall continue in lull lorce and effect untit such right of setoff or security interest is specifically waived or released by an instrument in
writing executed by Lender.
SUBORDINATION OF' BORROWER'S DEBTS TO GUARANTOR. Guaranlor agrees thaI the Indebtedness 01 Borrower 10 Lender, whelher now
existing or hereaMer crealed, shall be prior to any claim thai Guarantor may now have or hereafter acquire against Borrower, whether or 1101 Borrower
becomes insolvent. GuaranjQ( hereb)' expressly subordinates any claim Guarantor may have against Borrower, upon any account whatsoevl~r, 10 any
claim thai Lender may now or hereafter have against Borrower. In the event of insolvency and consequent liquidation of the assets of Borrower,
through bankruptcy, by an assignment for the benefit of credilors, by voluntary liqUidation, or otherWise, the assets of Borrower appJicatlle 10 the
payment of lhe claims 01 both Lender and Guarantor shall be paid to Lender and shall be firsl applied by Lender 10 the Indebtedness of Borrower 10
Lender. Guarantor does hereby assign to Lender aU claims which II may have or acquire against Borrower or against any assignee or Irustee In
bankruptcy of Borrower; provided however, thai such assignment shall be eHeclive only lor the ourpose of assuring 10 Lender lull payment in legal
lender 01 l'ne Indebledness. II Lender s' lUests, any noles or credil agreements now or here t?' 'ndng any debts or obligations of Borrower 10
Guarantor sh~,H be marked witn a legen ,d' same are subject 10 this Guaranty and shall t..lE d 10 Lender, Guarantor agrees, and Lender
he1eby is aU1horized, In Ihe name of GL\ 'It. .)m lime to lIme 10 execule and file financing 3ml::'HS and conlinualion slalemenls and Ie) execule
su'ch olher documents Jnd to take SUCr,~2{ achons as Lendet deems oecess.Jry 01 ?p;:JfOpl:.....v to pedect, preserve and enlorce ,ts {\Chts \loner Ihl<;
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Loan ffo 5900311-99
COMME~CIAL GUARANl
, ,
(Continued)
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Page 3
Guaranty.
MISCaL..ANEOUS PROVISIONS. The following miscellaneous provisions are a part of this Guaranty:
Amendments. ~his ~uaranty. together wi(~ any Related Documents, constitutes the entire understanding and agreement of the parties as to the
mattefS sel forth In thIS Guaranty. No alterabon at or amendment to this Guaranty shall be effective unless given in writing and signed by the P rt
or parties sough! to be charged or bound by the alteration or amendment a y
Appll~able uw. This Guaranty has bee,n delivered to Lender and accepted by Lender in the Commonwealth of Pennsylvania. If there is a
lawsUit, G~arant~r agrees upon Lender s request 10 submit to the Jurisdiction of the courts of Cumberland County, Comm.onwealth of
Pennsy1vama. ThiS Guaranty shall be governed by and construed (n accordance with the laws of the Commonwealth of Pennsy1vania.
Attorneys' Fees; Expenses. Guarantor agrees to pay upon demand all of Lender's casts and expenses, including attorneys' fees and Lender's
legal expenses, incurred in connection with the enforcement ot this Guaranty. Lender may pay someone else to help enforcE! this Guaranty, and
Guarantor shall pay the costs and expenses of such enforcement Cosls and expenses include Lender's attorneys' fees and Jeg.a' expenses
whether or not the~e is a la~~it. i~uding attorneys' fees l~d legal expenses for bankruptcy proceedings {and including efforts to modify or
vacate any Qutomaltc stay or InJunction), appeals, and any anticipated post-judgment collection services. Guarantor also shall pay- all court cosls
and such additional fees as may be directed by the court.
Notlees. All notices reqUired to.ba givan by either party to the other under this Guaranty shall be in writing, may be sent by telefacsimile (unless
otherwise re9uire.d by_law~, and shall be, effective when actually denvered or when deposited with a nationally recognized overnight courier, or
when depOSited In the United Stales mail, first ciass postaga prepaid, addressed to the party 10 whom the notlca is 10 be given at :Ihe .address
shown-above or to such 'Other Qddresses"'as.:either-party-m:ay-tignate to the other in writing. If there is more than one Guarantor, notice to any
Guarantor will constitute notice to all Guarantors. For notice purposes, Guarantor agrees to keep Lender informed at all times at Guarantor's
current address.
Interpretation. In all cases where there is more than one Borrower or Guarantor, then all words used in this Guaranty in the singLllar shall be
deemed to have been used in the plural where'the context and construction so require; and where there is more than one Borrower r1.liLmed in this
Guaranty or when this Guaranty is executed by more then one Guarantor, the words "Borrowe'" and "Guarantor" respectively shall mean aU and
anyone or more of them. The words '"Guarantor,- "'BOfTower,- and '\.ender"" include the heirs, successors, assigns, and transferees of each of
them. Caption headings in this Guaranty are for convenie""" purposes only and are not to be used to Interpret or define the provis;ons 01 this
Guaranty. If a court of compelent jurisdiction finds any provision 01 this Guaranty 10 be invalid or unenforceable as 10 any person or circumstance,
such findinq shall not rend... thet provision Invalid or unenforceable as to any other persons or circumstances, and all provistons of this Guaranty
In aU othe< respects shall remain valid and enforceable. If a'"l one ar mC<9 of Borrower or Guarantor are COl?orations or partn9lShlps, II is not
necessary for Lender to inquire Into the powers of Borrower or Guarantor or of the officers, directors, partners, or agents acting or purporting to act
on their behalf, and any Indebtedness made or created In rsUa""" upon the professed exercise of such powers shall be guaranteedl unde< this
Guaranty.
Wal~ef. . Lender shall not be deemed to have waived any rights under this Guaranty unless such waiver is given in wrilinq and signed by Lender.
No' delay or omission on the part of Lender In exercising any. right shall operate as a waiver of such right or any olher right A waive< by Lender 01
a provision of this Guaranty shell not prejuolC8 or constitute a waiver of Lender's right otherwise to demand strict compliance with that prollislon or
any other provision 01 this Guaranty. No prior walver by Lender, nor any course of deafing between Lender and Guarantor, shall c:onstilute a
waive< .91. any of lender's'rights or of any 01 Guarantor's obUgations as to any future transactions. Whenever the consent 01 Lender is required
under this Guaranty, the granting 01 such consent by Lender In any InsIa""" shall nol constilute continuing consenl 10 subsequent Instances
where such consent is required and in all cases such consent may be granted or withheld In the sole olSCfetion of Lender.
.
CONFESSION OF' JUDGMENT. GUARANTOR HEREBY IRREVOCABLY AlJTl-\ORIZES AND EMPOWERS ANY ATTORNEY OR THE
PROTHONOTARY OR a.ERK OF ANY COURT IN THE COMMONWEALTH OF PENNSYLVANIA, OR ELSEWHERE, TO APPEAR AT ANY TlME FOR
GUARANTOR AFTER A DEFAULT UNDER THIS GUARANTY, AND WITH OR WITHOUT COMPLAINT FILED, AS OF ANY TERM, CONFESS OR
ENTER JUDGMENT AGAtNST GUARANTOR FOR THE ENTIRE PRINCIPAL BAlANCE OF THIS GUARANTY, ALl ACCRUED INTERt.ST, LATE
CHARGES, AND ANY AND ALl AMOUNTS EXPENDED OR ADVANCED BY LENDER RELATlNG TO ANY COLLATERAL SECUI:m.IG THE
INDEBTEDNESS TOGETHER WffR TmEREST'ON SOCH Jl1itOUNTS;TOGETHER WITH COSTS OF SUIT, AND AN ATTORNEY'S COMMISSION OF
TEN PERCENT (10%) OF THE UNPAID PRINCIPAL BAlANCE AND ACCRUED INTEREST FOR COlleCTION, BUT IN ANY EVENT NOT LESS THAN
FIVE HUNDRED DOLLARS ($500) ON WHICH JUDGMENT OR JUDGMENTS ONE OR MORE EXECUTIONS MAY ISSUE IMMEDtATELY; AND FOR
SO DOING, THIS GUARANTY OR A COPY OF 'THIS GUARANTY VERIFtED BY AFFtDAVIT SHAlL BE SUFFICtENT WARRANT. THE AUTHOflJTY
GRANTED iN THIS GUARANTY TO CONFESS JUDGMENT AGAINST GUARANTOR SHAlL NOT BE EXHAUSTED BY ANY EXERCISE OF THAT
AUTHORITY, BUT SHAlL CONTlNUE FROM TlME TO TlME AND AT ALl TlMES UNTIL PAYMENT IN FULL OF ALL AMOUNTS DUE UNDER THtS
GUARANTY. GUARANTOR HEREBY WAIVES ANY RIGHT GUARANTOR MAY HAVE TO NOTlCE OR TO A HEARING IN CONNECTION WITH AI{'(
SUCH CONFESSION OF '\JUDGMENT, EXCEPT ANY NOTlCE AND/OR HEARING REQUIRED UNDER APPUCABLE LAW WITH RESPECT TO
ElCECUTlON of THE JUD~ENT, AND STAreS THAT EITHER A REPRESENTATlVE OF LENDER SPECtFICALLY CALLED THIS CONFESSION OF
JUDGMENT PROVISION TOI3UARANTOR'S ATTENTION OR GUARANTOR HAS BEEN REPRESENTED BY INDEPENDENT LEGAL COUNSEL.
eACH)JNo"ERSIGNED GUARANTOR ACKNOWlEDGES HAVING READ AU. 'THE PROVISIONS OF THIS GUARANTY AND AGREES TO ITS
TERMS. IN ADDITION, EACH GUARANTOR UNDERSTANDS THAT 'THIS GUARANTY tS EFFECTtVE UPON GUARANTOR'S EXECUTION AND
OS-IVERY OF THIS GUARANTY TO lENDER AND THAT THE GUARANTY WILL CONTtNUE UNTIL TERMINATED IN THE MANNER SlOT FORTH
IN THE, SECTION TIlT_ED "DURATION OF GUARANTY." NO FORMAL ACCEPTANCE BY LENOER tS NECESSARY TO MAKE THIS GUARANTY
EFFECTIVE. THIS, GUARANTY IS DATED OECEMBER 10, 1997.
THtS GUARANTY (AS BEEN SIGNED AND SEALED BY THE UNDERStGNED.
GXUARANTOR: '.'//' ~~ ,~
Z{~ (SEAl)
n K. Alch '.J
xL fI] G'~
Undo(! M, Rich
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12-10-1997
'Loan No 5900311-99
COMr{lE~CIAL GUARANTY
(Continued)
T
.
Page 4
INDIVIDUAL ACKNOWLEDGMENT
STATE OF \)tiJvl\J\yLU~,^
COUNTY OF C- U f\AE, 6A->.~p
) 58
)
On Ihis, Ihe {O L.l day of llGJn....a.LiL ,19..12, bafore me 6~~ ~. 'f'rJ', \ \-e~ . the
undersigned Nolary Public. personally appaared, John K. RiCh and Undo"'. Rich, known 10 me (or salisf.c only proven) 10 be I e person whose
names ara subscribed 10 Ihe .wilhin'lnstrun:'Jsnt.' and',acknowledged:that they executed the' same for the purposes therein contained.
In wltne _A fflclaJ seat
Notarial Seal
Sharon K. Miller, Notary Public
Soulh Middlelon Twp~, Cumbe~and County
My,Commissjon Expires-Aug.:'20, 1998
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Notary Public in and tor the Slale or "Gt n", (\
LASER PRO, Reg. U.s. paL & T.M. Off., Vel'. 3.24 (e) 19W CFI ProServlces,lne. AJlrlghtar.,ervec1 IPA-c20 STAEET.LN C3.0VLI
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PENNSYLVANIASTATEB~
Plaintiff
: IN THE COURT OF COMMON PLEAS
: CUMBERLAND COUNTY, PENNSYLVANIA
v.
: CIVIL ACTION - LAW
STREETGARD, INC. and
JOHN K. RICH,
Defendants
: NO. 00-1045 CIVIL TERM
CONSENT TO AMEND COMPLAINT
AND NOW, this 3...1!:day of 0 c-'""f""
,2000, pursuant to Pa.R.C.P. 103:3,
I hereby consent to having the Plaintiff file an Amended Complaint.
Respecfully submitted,
HUBERT X ILROY, ESQUIRE
BROJOU & GILROY
41 NORT. HANOVER ST
CARLI E, PA 17013
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CERTIFICATE OF SERVICE
I hereby certify that on this, the r d day of November, 2000, I placed
in the United States Mail, first-class postage prepaid at Harrisburg, Pennsylvania,
a true and correct copy of the foregoing to the following:
HUBERT X. GILROY, ESQUIRE
BROJOUS & GILROY
41 NORTH HANOVER ST
CARLISLE, PA 17013
~()~
Robert L. Knupp, Esquire
cc: DONALD BONAFEDE, PR SIDENT
PENNSYLVANIA STATE BANK
PO BOX 487
CAMP HILL PA 17001-0487
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LAW OFFICES OF
KNuPP, KODAK & IMBLUM, P.C.
CAMERON MANSION
407 NORTH' FRONT STREET
T P.O. Ji'oX 11848
HARRISBURG. PA 17108-1848
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PENNSYLVANIA STATE BANK
Plaintiff
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY PENNSYLVANIA
V.
STREETGARD, INC., and JOHN K.
RICH,
Defendants
CIVIL ACTION - LAW
NO. ~OOO - ICJtlS CC,,)Jb~
NOT1S;E
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 against you. You are warned that if you
fail to do so, the case may proceed without you and jUdgment may
be entered against you by the court without further notice for any
money claimed in the Complaint for any other claim or rel ief
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 Co. Court Admin.
Fourth Floor
One Courthouse Square
Carlisle PA 17013-3387
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A_ . r ESQUIRE
4201 Crums Mill Road
Post Office Box 67015
Harrisburg, PA 17112
(717) 540-5610
SUPREME COURT NO. 07207
ATTORNEY FOR PLAINTIFF
Dated:
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PENNSYLVANIA STATE BANK,
Plaintiff
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY PENNSYLVANItI
V.
STREETGARD, INC., and JOHN K.
RICH,
CIVIL ACTION - LAW
NO.
DefendantS
tI.QTI C Il'-
Le han demandado a usted en la corte. Si usted quiere
defenderse de estas demandas expuestas en las paginas siguientes,
usted tiene viente (20) dias de plazo al partir presentar Ulna
apariencia escrita 0 en persona 0 por abogado y archivar en la
corte en forma escrita sus defensas 0 sus objeciones alas demandas
en contra de su persona. Sea avisado que si usted no se defiende,
la corte tomara medidas y puede entrar una orden contra usted sin
previo aviso 0 notificacion y por cualquier queja 0 alivio que es
pedido en la peticion de demanda. Usted puede perder dinero 0 sus
propiedades 0 otros derechos importantes para usted.
LLEVE ESTA DEMANDA A UN ABOGADO INMEDIATAMENTE. SI NO
TIENE ABOGADO 0 SI NO TIENE EL DINERO SUFICIENTE DE PAGAR TAL
SERVICIO, VAYA EN PERSONA 0 LLAME POR TELEFONO A LA OFICINA CUYA
DIRECCION SE ENCUENTRA ESCRITA ABAJO PARA AVERIGUAR DONDE SU PUEDE
CONSEGUIR ASISTENCIA LEGAL:
Cumberland Co. Court Admin,
Fourth Floor
One Courthouse Square
Carlisle PA 17013-3387
Respectfully submitted:
ART
4201
Post Off ice
Harrisburg, PA
(717) 540-5610
SUPREME COURT NO. 07207
ATTORNEY FOR PLAINTIFF
v
-,
Dated:
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PENNSYLVANIA STATE BANK* IN THE COURT OF COMMON PLEAS
Plaintiff * CUMBERLAND COUNTY, PENNSYLVANIA
*
v.
* CIVIL ACTION - LAW
* NO. ':Unyo - /D'I':5' ~ -r~
STREETGARD, INC. and
JOHN K. RICH
Defendants
*
*
*
COMPLAINT
AND NOW comes Plaintiff by and through its attomey Arthur A.
Kusic, Esquire and respectfully makes its Complaint as follows:
1. Plaintiff, Pennsylvania State Bank, is a banking facility
organized and operating under the laws of the Commonwealth of
Pennsylvania with offices at 2148 Market Street. Camp Hill, Cumberland
County, Pennsylvania 17001.
2. Defendant, Streetgard, Inc. (hereinafter "Streetgard"), is a
corporation organized and existing under the laws of the Commonwealth
of Pennsylvania with its address at 405 Heiser Lane, Carlisle,
Cumberland County, Pennsylvania 17013.
3. Defendant, John K. Rich, is an adult individual residing at
17119 Carriage Dale Court, Spring, Texas 77429.
4. At all times pertinent hereto, Defendant John K. Rich was
president of corporate Defendant Streetgard, Inc..
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COUNT 1.
(Plaintiffv. Streetgard, Inc.)
5. Plaintiff incorporates herein by reference thereto the averments
hereinabove set forth in paragraphs 1 through 4.
6. On or about December 10, 1997, Defendant Streetgard entered
into a Business/Manager Agreement (hereinafter "Agreement") with
Plaintiff, which Agreement is, in essence, a factoring program whereby
Defendant would sell its discounted accounts receivable to Plaintiff in
retum for cash. A copy of the Agreement executed by and between
Plaintiff and said Defendant is attached hereto, made a part hereof and
marked Exhibit "A".
7. On or about December 10, 1997, Defendant Streetgard executed
a Promissory Note for the sum of $425,000.00 in favor of Plaintiff, which
Note evidenced a revolving line of credit granted by Plaintiff. A copy of
said Promissory Note is attached hereto, made a part hereof, and marked
Exhibit "B".
8. On or about January 11, 1999 and again on or about May 3,
1999, Plaintiff and Defendant executed Modification Addenda to the
aforesaid Agreement, thereby increasing the total outstanding face
amount of the receivables which might be purchased by Plaintiff. Copies
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of said Addenda are attached hereto, made a part hereof and marked
Exhibit "C".
9. On or about June 10, 1999, Defendant Streetgard executed a
Promissory Note whereby Defendant agreed to pay Plaintiff the sum of
$95, 264.22 along with interest on the unpaid principal for those certain
accounts deemed uncollectible. A copy of said Note is attached hereto,
made a part hereof, and marked Exhibit "D".
10. As set forth in Section 4.1 of the Agreement, Defendant
Streetgard warranted that the Receivables were or would be bona fide
and existing obligations of the Customers of Defendant Streetgard arising
out of its sales or services, which receivables would be free and clear of
all security interests, liens and claims of third parties.
11. On or about June 22, 1999, Plaintiff did notify Defendant
Streetgard that it would no longer accept any of said Defendant's invoices
for payment under the Business/Manager program set forth in the
Agreement. A copy of said letter is attached hereto, made a part hereof
and marked Exhibit "E".
12. On or about June 25, 1999, Plaintiff did notify said corporate
Defendant as well as individual Defendant John K. Rich that:
(a) due to the large number of customer billing disputes related
to Defendant Streetgard's invoices purchased by Plaintiff,
payment on said invoices was extremely doubtful;
(b) the aforesaid large amount of disputed invoices constituted
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an event of default under the aforesaid Agreement and
related Promissory Notes; and
(c) the entire unpaid principal balance and accrued interest,
to wit $717,790.79, were due and payable by July 10,
1999. A copy of said letter is
attached hereto, made a part hereof and marked Exhibit
"F".
13. To date, despite Plaintiff's demands, Defendant Streetgard has
failed to timely remedy its delinquency with Plaintiff.
14. Plaintiff has granted Defendant Streetgard credit for all
payments made on the account and there remains a balance due and
owing of $690,416.07. A copy of Plaintiffs Merchant Activity Sheet
setting forth the debits and credits on Defendant's account is attached
hereto, made a part hereof and marked Exhibit "0".
15. Pursuant to the Agreement and related Promissory Notes, in
the event of default as in the instant case, Defendant Streetgard agreed
to pay Plaintiffs collection costs, expenses and attorney's fees
(hereinafter "attorney's fees") often (10%) percent of the principal
balance and interest due and owing, to wit: $69,041.61.
16. Plaintiff has made demands upon Defendant Streetgard for
payment of the balance due and owing which demands remain
unheeded.
17. Plaintiff avers that the amount in question exceeds the
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jurisdictional amount requiring referral to arbitration under local rule.
WHEREFORE, Plaintiff prays your Honorable Court to enter
Judgment in its favor and against Defendant Streetgard in the amount of
$759,457.67 (which amount includes principal and interest of
$690, 416.07 plus attorney's fees of $69,041.61) along with interest at
the legal rate of 6% per annum and the costs of this proceeding.
COUNT II.
(Plaintiffv. Defendant Streetgard)
(Fraud)
18. Plaintiff incorporates herein by reference thereto the averments
as hereinabove set forth in paragraphs 1 through 18.
19. As set forth in Section 4.1 of the Agreement, Defendant
Streetgard warranted that the Receivables were or would be bona fide
and existing obligations of the Customers of Defendant Streetgard arising
out of its sales or services, which Receivables would be free and clear of
all security interests, liens and claims of third parties
20. Plaintiff believes and therefore avers that approximately 75%
of the Receivables purchased from Streetgard pursuant to the Agreement
are disputed and are believed to be not bona fide obligations.
21. Plaintiff believes and therefore avers that Defendant Streetgard
knew or should have known that there would be disputes prior to selling
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the Receivables to Plaintiff. Copies of letters sent by some of Defendant
Streetgard's alleged Customers on Receivables turned over to Plaintiff for
purchase along with the Customers' responses thereto are attached
hereto, made a part hereof and marked Exhibit" H".
22. Plaintiff believes and therefore avers that Defendant
Streetgard fraudulently intended to deceive Plaintiff by turning over
disputed, non bona fide Receivables while warranting otherwise.
23. Plaintiff justifiably relied on Defendant Streetgard's
misrepresentations to its detriment and as a result thereof has suffered
damages in the amount of $690,416.07.
24. As hereinabove set forth in paragraph 15, Plaintiff believes
and therefore avers that Defendant Streetgard is liable to Plaintiff for
attorney's fees often (10%) percent of the balance due and owing, to wit:
$69,041.61.
WHEREFORE, Plaintiff prays your Honorable Court to enter
Judgment in its favor and against Defendant Streetgard in the amount of
$759,457.67 (which amount includes principal and interest of
$690,416.07 plus attorney's fees of along with interest at the legal rate
of 6% per annum and the costs of this proceeding.
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COUNT III.
(Plaintiffv. Defendant John K. Rich)
(Piercing the Corporate Veil)
25. Plaintiff incorporates herein by reference thereto the averments
as hereinabove set forth in paragraphs 1 through 24.
26. Defendant John K. Rich is president and, upon information
and belief, sole officer of corporate Defendant Streetgard.
27. Plaintiff believes and therefore avers that Defendant John K.
Rich owns, and formerly resided at, 504 Heiser Lane, Carlisle, the same
address within this Commonwealth where corporate Defendant
Streetgard is located.
28. Plaintiff believes and therefore avers that Defendant John K.
Rich, while attempting to insulate himself by the corporate veil, directed
and controlled the day to day operations of corporate Defendant
Streetgard and, as more fully hereinbelow set forth, executed Guaranties
whereby said Defendant personally guaranteed payment of the aforesaid
Promissory Notes executed by corporate Defendant Streetgard.
29. Plaintiff believes and therefore avers that Defendant John K.
Rich utilized corporate Defendant Streetgard as a mere instrumentality,
an alter ego, to perpetrate a fraud on Plaintiff by selling Plaintiff disputed
Receivables.
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30. Plaintiff believes and therefore avers that should Defendant
John K. Rich not be held liable to Plaintiff for the damages suffered by
reason of the fraudulent acts of corporate Defendant Streetgard, said
Defendant would be free to continue to utilize the corporation to
perpetrate a fraud and unjustly profit thereby.
WHEREFORE, Plaintiff prays your Honorable Court to pierce the
corporate veil and enter Judgment in its favor and against Defendant
John K. Rich in the amount of $759,457.67 (which amount includes
principal and interest of $690, 416.07 plus attorney's fees of
$69,041.61), along with interest at the legal rate of 6% per annum and
the costs of this proceeding.
COUNT IV.
(Plaintiff v. Defendant John K. Rich)
(Commercial Guaranties)
31. Plaintiff incorporates herein by reference thereto the averments
as hereinabove set forth in paragraphs 1 through 30.
32. On or about December 10,1997, Defendant executed, under
seal, a Commercial Guaranty whereby said Defendant guaranteed
payment to Plaintiff of 100% of the aforesaid Promissory Note executed
on that date by Defendant Streetgard. A copy of said Guaranty is
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attached hereto, made a part hereof, and marked Exhibit "l".
33. The aforesaid Guaranty clearly states that said Guaranty
covers a revolving line of credit and that the Guaranty shall be open and
continuous until the line of credit is terminated and the indebtedness is
paid in full.
34. On or about June 10, 1999, Defendant executed, under seal,
a Commercial Guaranty whereby said Defendant guaranteed payment to
Plaintiff of 100% of the aforesaid Promissory Note executed on that date
by Defendant Streetgard. A copy of said Guaranty is attached hereto,
made a part hereof, and marked Exhibit "I".
35. On or about June 25, 1999, Plaintiff did notify said Defendant
that:
(a) due to the large number of customer billing disputes
related to Defendant Streetgard's invoices purchased by
Plaintiff, payment on said invoices was extremely
doubtful;
(b) the aforesaid large amount of disputed invoices
constituted an event of default under the aforesaid
Agreement and related Promissory Notes; and
(c) the entire unpaid principal balance and accrued interest,
to wit $717,790.79, were due and payable by July 10,
1999. See Exhibit "F" attached hereto.
36. Plaintiff has granted Defendant Streetgard credit for all
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payments made on the account and there remains a balance due and
owing of $690,416.07. See Exhibit "G" attached hereto.
37. Plaintiff has made demands upon Defendant John K. Rich
for the aforesaid balance due and owing which demands remain
unheeded.
38. Pursuant to the Promissory Notes, Defendant John K. Rich
agreed to pay Plaintiffs collection costs, expenses and attorney's fees of
ten (10%) percent of the principal balance and interest due and owing,
to wit: $69,041.61.
WHEREFORE, Plaintiff prays your Honorable Court to enter
Judgment in its favor and against Defendant John K. Rich in the amount
of $759,457.67 (which amount includes principal and interest of
$690, 416.07 plus attorney's fees of $69,041.61) along with interest at
the legal rate of 6% per annum and the costs of this proceeding.
RESPECTFULLY SUBMITIED:
A~~
4201 Crums Mill Road
Harrisburg, PAl 7112
(717) 540-5610
Supreme Court No. 07207
Attorney for Plaintiff
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PENNSYLVANIA STATE
BANK,'
Plaintiff
* IN THE COURT OF COMMON PLEAS
* CUMBERLAND COUNTY, PENNSYLVANIA
*
v.
* CIVIL ACTION -LAW
* NO.
*
STREETGARD, INC. and
JOHN K. RICH,
Defendant
*
*
*
VERIFICATION
I, William V. Freeman ,the President of
PENNSYLVANIA STATE BANK verify that the statements contained in the
Complaint are true and correct to the best of my knowledge, information
and belief and that I am authorized to make this Verification on behalf of
PENNSYLVANIA STATE BANK. I understand that false statements made
herein are subject to the penalties of 18 Pa.C.S.A. Section 4904, relating
to unsworn falsification to authorities.
PENNSYLV^WATE BANK
BY: ~ A,.
Nam~: Willi= v. FreePJan
Date: DeceMber 17, 1999
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TA .JUSINESSIMANAGER@ AGfl~iviENT'
WITH BUSINESSES AND PROFESSIONALS
TO: Pennsylvania State Bank
2148 Market Street
Camp Hill P A 17001
FROM: Streetgard, Inc.
405 Heiser Lane
Carlisle P A 17013
( The "Bank")
( The "Business")
This Agreement is entered into by and between the Bank and the Business to govern the sale of
Receivables, as defined below, by the Business to the Bank. The Business agrees to the
following terms according to which, when accepted by the Bank, the Business will receive
payment for Receivables arising'frOm: sales orsetvi.ces'toCuStomers and purchased by the Bank
pursuant to the Bank's Busine~sIManag'erplan. "
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termsan't:NIiscloSuresrelatiiig to'aRiYiva'ble/.'; :,,\\,;;.;;, ..... . " . .....i..'. ...
". . ;.il;1~j(itr~2' ;iill'Gt'edit';Mei1fil".~ili1:lifiiiiafcHDi:refl'_~erSdit;other than a credifarisiiig"frOm
, , apayhl.ent'itdia:GUStoffief's'~~;WitiI't:he'IJ~~S's:~t ills '.'" . ',. ",.;. ." . ,''i''",l'l 11,,/'
'J !,jiil'.il!jJi.".'. ""Gii~f:lIlif~"{'mJanlo;a\fdebtotf'Obligat~Wfbheor. more Receivables wliich'ifnilSt~
.fromg~;the'Busities$'!S'ol\1',o~~des'tt\~1il:q' .. 'GUstelIiet." ............. J~1"'(.,t
',',~ ,<"_t~~t~"!:_:',',t!:~~ti,!~)'!~:_~!'. ~;>:;~~'~ '~:.:.~~~ _.' ""':~~:' "..;", ',"" ~_~~~~:d~,~~e -ou.. -' : .'~','-:
,i'Stic1lr~1~afj18r(~W~~'~~ . .....~tan;payhientSi~""
'anoWafi~!iotfab:FHaturlrlit\l~y~l'f,e"i<'f~. .... .... ....... . .... .'oroutstaiulin
.i~t(1~~~;~~~~~~~i$.~.:~~~~~:iiri,wttii~i. ............
foffii~ofliWJ;ti!HMfof:lr"ifOb.~Mm~ '. ,....:. ~eMces.preYio~r ,j,~e
BusiiiessI~a;~6'rlf~rF'Mi';\d~~~'l/!l;~i.,~~"t~'<iC.1J'! :l:',!t;. .. .......
.' " <;. i. l:~li'iIi."N~t ~fuiilintii.15f;a"'R: . Fal:l;1'>Alnoilntofa Reeeiv~bt~11~s~(l
S. .. ,i"..."'....;J~~~:~L '. ,"I. ,~,:,-"'r! _.':'r,. ,,",.-In.'.h. ,,-~ C""'I'_ 't<!,,~'; ..... ..... .... ......... \.,.,.,,~i,~...'.'.'.'.",.,_:'" '-.' ","Ol.,...ia.'lj.'.....".". :~.'liii '.'~'.' _.- :, ,(g. .
ervICe)b#l:lrgetAi,,'.#l,i, ,~-' -.J'~;_""- ~...- ,,~"", .~. " " _ '. " '" ' .':I'i'~'~ ~.~'~~'!!t
'. ...../..Iio.....".'..."...'...,.'O.....b..'.I.."."ti'.." ",.'j '.J"." ...... '...B........""'. .:'...''''.'.'...'.'..'.b'li.......... .' t' .th. 'B. ".....
. '....,tT ''''''0..:.. Iga_ ons we. e'i; usmesss"o ga..ons 0 e,' '.
'iPufsulti~~tii~~meht,'4'iliiclet '. ....~c%ll:tIIlet.iW~tY'~~trinio&'tio'n~i5V.. ..' ~,
. ; ;howev~rltiRti~liei1ev~'~Satearil '. ;~Tor{reVia.~liBett; ~~ther'direcl''Of;indirect, ""a~sollifuolr
contfugertt, no\.v or hereafter eXisful:goFdlieJ;!'/'); j ,,,J. . , : '
1;8! : "Receiva bIes'" 'IneanslFiil,F'aecoiliits, iriSt:rinilents, contraCt rightS, chattel'plIper,
documetl~, and general iritarigibldsiansirigfrOin't!:ie'BUSiness's sale of goods or relldenng'of
services, and the proceeds thereof,'and all security and' guaranties therefore, whether now
existing or'hereafter created, that are aCCepted by the Bailkfor purchase hereunder in the Bank's
sole and absolute discretion,
1.9 "Repurchase Obligation" means the liability of the Business to the Bank undeir
this Agreement in an amount equal' on any date to the Face Amount of Receivables on that date,
plus attorneys' fees (if incurred) and accrued and unpaid finance charges related to such
Receivables, l,
1.10 "Reserve" means funds of the Business used to provide for the funding of the
Business's Repurchase Obligation. "Reserve Account" means the deposit account of the
Business containing the Reserve established pursuant to Section 2.5 of this Agreement.
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1.11 "Service c...arge" means a discount equal to 3.75 v"rcent'(3.75 %) of the Face
Amount of each Receivable the Business tenders to the Bank that is acquired by the Bank. The
Business acknowledges that the Service Charge is a discount for value and in no event
constitutes interest or a similar charge and that the transactions contemplated under this
Agreement are not transactions for the use, forbearance or detention of money. The Service
Charge has been agreed upon by the parties as representing a reasonable and customary fair
market value discount.
SECTION 2: SALE: PURCHASE PRICE: BILLING: RESERVE
2.1 Assignment and Sale. The Bank hereby purchases from the Business and the
Business hereby assigns and sells to the Bank as absolute owner, the Business's entire interest in
such of its currently outstanding Receivables as are described on attached EXhibit 2.1, as well as
its future Receivables represented by Invoices it delivers to the Bank; provided, however, that at
no time shall the total outstanding Face Amount of Receivables purchased by the Bank exceed
$ 425,000.00 unless agreed to by the Bank. The Business and the Bank agree that: (a) the
Business will submit to the Bank all Invoices representing r~ceivables arising from all sales of
goods or provisions of services to Customers for the Bank's determination of acceptability as
ReceiVables; (b) the transactions contemplated by this Agreement are account purchase
transactions; (c) the Receivables are being purchased by the Bank from the Business at a
discount; (d) the purchase and sale of the Receivables vests absolute right, ,title and ownership of
such Receivables, together with all incidents and benefits thereof including servicing rights and
rights to verify Receivables with Customers, in the Bank; and (e) the Business has no right to
reacquire, redeem or otherwise obtain title to the Receivables or any proceeds thereof. The
Business further sells and assigns to the Bank all of the Business's rights, as -an unpaid vendor,
lienor, or lienholder, all of its related rights of stoppage in transit, replevinlUl<lreclamation and
rights against third parties (all of which shall constitute part of the Receivables), and agrees to
cooperate with the Bank in its exercise of these rights. The Busine~s and, the Bank agree to
execute and deliver such further instruments, documents and, endorsements as may be necessary
to effectuate the sales and purchases contemplated hereby and the purposes of this Agreement.
2.2 Purchase Price. The purchase price of the Receivables shall be equal to the Net
Amount thereof. The Net Amount less the Reserve associated with the Receivables shall be
credited to the Business's primary account with the Bank on or before the next banking day after
delivery to the Bank of acceptable Invoices. The Business and the Bank have agreed upon the
purchase price of the Receivables and said price reasonably reflects their fair market value.
2.3 Documentation. The Business will provide the Bank with appropriate Credit
Applications and Agreements, Invoices, and Credit Memos (if applicable) related to all sales and
services creating Receivables of Customers, and such other documents and proof of delivery of
goods or rendering of services as the Bank may reasonably require. As to the Receivables
described on Exhibit 2.1, the payment of the purchase price by the Bank as set forth in Section
2.2 hereof shall be conclusive evidence of assignment and sale thereof, and, if the Bank so
requires, any Invoices the Business may thereafter send (if any) will clearly indicate that the
related Receivables have been assigned, sold, and are payable to the Bank only.
2.4 Billing. The Bank will send a monthly statement to all Customers itemizing their
account activity during the preceding billing period, unless otherwise agreed by the parties, All
Customers will be instructed to make payments to a post office box controlled by the Bank. All
payments received from or for the account of a Customer will be applied to the obligations of
that Customer. Payment will be deemed made when received by the Bank. All variations,
modifications or extensions of indebtedness on Receivables sold to the Bank hereunder will be
made only by the Bank. Nothing in this Agreement authorizes the Business to collect
2
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Receivables sold to t.,...nk hereunder, but in the event t_... ..sl~ess does, it will receive
remittances in trust for the Bank and wi/! remit the same to the Bank no later than the next
banking day. The Business will pay to the Bank any finance charges incurred by a Customer
pursuant to the applicable Credit Application and Agreement or terms of sale because of delay on
the Business's part in delivering payments or Credit Memos to the Bank.
2.5 Reserve. The Bank may retain a portion of the sums payable to the Business as a
Reserve, the amount of which the Bank may adjust from time to time in its reasonable discretion
,
to provide for satisfaction of the Business's Repurchase Obligation. The initial amount of the
Reserve will be equal to 10 % of the Face Amount of all Receivables initially purchased by th,~
Bank. Thereafter, and subject to the Bank's right to adjust the Reserve as set out above, the Bank
will retain as Reserve and deposit in the Reserve Account 10 % of the Face Amount of all
Receivables purchased by the Bank subsequent to its initial purchase of the Receivables. The
Reserve will be held in a separate, interest-bearing account for the benefit of the Business.
SECTION 3: REPUR-CHASE OF RECEIVABLES: SECURITY INTEREST
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,3.1 Requ!rc:;s1~~,,~rchase. With respect to any ,Receivables iI).i~iallypurchasedby
the Bank andsho)'ffi om~xm1:lit2,.I, the Bank may require" the Busine~s to ~~p.lil.!~p,ase all or any
portion of such Receivables from any particular Customer plus anyt'in,an~!hchlP'ges.atmonthIy
periodic rate of O. % if any minimum payment due on one or more of such ReCeivables remains
unpaid follow4\lt~~9~s;:~,~,~Y;frrstbiniJ).g.date. ",' Withresp(lCi to.j.~iB~~!!!~!~~'~~~2,~d
subsequent to the Blink's Imtlal purchase hereunder, the Bank may require the Business to
repurchase.,all,Qr 1,~y~it~f#~Pi'i,Cllf",such. ~e~ivable~ ~om "any Plll1i.~w.~c;"W~~~Il,le~I,plus finanC\:
charges at a, ~ontll)Yjj~e,Ql.S;.fite of O. Volfany mmunum, paymentA~~~Qp.,i~"$U9'lo~:;p ,Hch
Re<:eivables, ~\lHl,~j~~~~:t~~lIQ~8;~~:q,daysafter its fu.st billip,~,,~e ,',.' ";;1
Agreement,lthe~a~!l.l~i~~~f,?l''Bcece!;va1:l1espW"c~~d from the Bus,~~~ " ' " ' " .~t "
report of Receiya~!~~ff1i,p:i!J>>~e40r generated by the"Bank wiU,1Jed~~~, ,,~,~j*~i ,'It'
manifest ,error) I ;in,;,;4~Wm1i;!'lj~g,which(; Receivables, the Bank, maXt',.~~~tJl.~~,~JIIlm~~H to
repurchase. i R~gMgIg!!!jqt;,WJ:I,eRPurchased,theBa.W<. may .requireth~ l!}~~~~.tg. repl}N)jJ!i~~:all
or any PQrtioIljQf,su.t:\l;J.t~Xablesfrom,anyp3.l'ticu1arCustomer,ifs1!~!j,:'<::~t>w.er.is,.b~pt. or
insolvent or ifanY,4ispu~e.ljl'ises,with a, ~tomer regarding such Receiyables (inc!uding, without
limitation, any.allege(h.Q~4u.ction, defense, offset or counterclaimtheret())."The Bank may
require the Business to ,repurchase any or all outstanding Receivables (a) upon a Default, as
defined in Section $, or(1;l)llPonthetermi,l),a~onofthis Agreement. Any deci~i()nby the Bank to
,require repurchase,of.1e~s:t:luw the maximWn amount permitted,hcY this A~ment shallnotbe
deemed a, waiver of the Bank's rights to require such repurchase to the maximum extent
permitted in this Agreement.
3.2 Effectinj!'Re,purchase. Should the Bank require repurchase of one or mon:
Receivables, the Business shall be liable to the Bank for payment of the Repurchase Obligation
with respect to such Receivables. Upon a Default or termination under this Agreement, the
Repurchase Obligation shall also include the amount of all indemnities and other obligations of
the Business arising under this Agreement. Without notice to or demand on the Business, the
Bank may debit the amount of such Repurchase Obligation (and any amount necessary to bring
the Reserve to the level required by the Bank in its sole and reasonable discretion) against the
Business's Reserve Account or any other deposit account of the Business with the Bank. In the
event such accounts contain insufficient funds for the Bank's debit or the Bank elects not to make
such debit, the Business agrees to pay any such deficiency or shortfall on demand. The Bank
shall have no undertaking with respect to the billing or collection of Receivables so repurchased.
After demand, if such Repurchase Obligation is not paid in full, and if permitted by applicable
law, the Business authorizes any attorney-at-law to appear for the Business in any court of record
3
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in the United States, ano to confess judgment for such amount' us may appear to be unpaid
thereon, together with any allowable fees for collection of said judgment.
3.3 Security Interest. The Business hereby grants the Bank a security interest in all
of its present and future accounts, instruments, contract rights, chattel paper, documents and
general intangibles (in each case as defined in the Uniform Commercial Code as in effect in the
State whose law governs this Agreement) and the proceeds thereof, and all returned, repossessed,
and reclaimed goods, and related books and records, to secure all of the Business's Obligations,
and agrees to execute appropriate UCC-l financing and other related statements. In addition, the
Business grants the Bank a security interest in the Reserve and in the Reserve Account to secure
all of the Business's Obligations. The Business agrees to execute such additional documents and
take such further action as Bank deems necessary or desirable in order to perfect the security
interests granted herein and otherwise to effectuate the purposes of the Agreement. In the event
that the Bank requires additional security for the Business's obligations under this Agreement
and the Business or other party executes additional security agreements, pledge agreements,
guaranties and documen~ of similar import (coll~ctively, the "Additional Security Documents"),
terms used therein such as, but not limited to, "loans," "indebtedness," "secured obligations," and
"obligations," shall be deemed to include the' Repurchase ,Obligation as defined herein, and
notwithstanding the proVisions of the AdditionalSeeurity Documents, the Repurchase Obligation
, secured thereby Shall riot constitute a loan.
"" -:.~>:_} , '
SECTION 4:' REPRF"sENTATIONS. WARRANTIES AND COVENANTS
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'4.1 ' ,; Represe.ttations and Warrahtieli.'The1Btisines!Prepresentsandwarrants that:
',(a) it is fully authorized to enter into this Agreement arid to perform hereunder,' and thatthis
'Agreement constitutes 'its legal, valid and binding obllgatidf1;!tb) the Busiriess is solvent and in
, 'goOd standing in thestat~of its organization;@ ifif~'116f'thJpresen(jnten:rof the BilSiriess"'to
"s&k protection under any olmkruptcy laws; (d) itsiReceivabl~s:arearidthartheywillbeat'the
, time of their creation,boriafide and existing obligationS of Customers of the Business arisrng'out
of itS Sales or seMceii}rr&: and clear of allsedirity<iritereStSNiensi'arid tlaimS' whatsoevclf'of
, thirdpwes; (e)t1iedoCwnCntation tinder which thC'ReceiVlibles'are payable authorize the payee
"ther:eofto charge,coile8tllnd'feceive interest at'the"rateproVided in such documentation; (f)all
Receivables and alldocumei1ts and practices related 'thereto comply with all applicable federal
and state laws; (g) the Receivables will be paid by' Customers prior to the date of required
rePUrchase or will be repurchased by the Business purs'uanttoSections 3:1 and 3.2 hereof; (h) the
.'collateral in which"il. security interest is granted 'in SeCtion 33 hereof or in any Additional
Security Documents is nor subject to any other security interest, lien or encumbrance whatsoever
(except in favor of the Bank), and that the Business will not permit such collateral to become so
encumbered without the Bank's prior written consent; and (i) the BuSiness's inventory is not
subject to any security interest, lien or encumbrance whatsoever and that the Business will not
permit its inventory to become so encumbered without the Bank's prior written consent.
4.2 Covenants. The Business covenants that (i) it will allow the Bank to review and
inspect during reasonable business hours, and the Business will supply, financial information,
financial records, and documentation on the Business, any guarantors, or any Customer upon the
Bank's request; (ii) with respect to each Receivable as it arises: (a) the Business will have made
delivery of the goods and/or will have rendered the services represented by the Invoice, and the
goods and/or services will have been accepted; (b) the Business will have preserved and will
continue to preserve any liens and any rights to liens available by virtue of the sales and/or
services; (c) the Customer will not be the Business's affiliate; (d) the Bank's copy of the Invoice
will be genuine and will comply with this Agreement; (e) the Business will have no knowledge
of any dispute or potential dispute that may impair the validity of the transaction or the
4
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Customer's obligation to pd)' the related Receivable in accordance \Vlth its te~s; (f) the Business
will have the right to render the services and/or to sell the goods creating the Receivable, and will
do so in accordance with all applicable laws; (g) the Business will have paid or provided for the
payment of all taxes arising from the transaction creating the Receivable; and (h) the Receivable
will not be subject to any deduction, offset, defense, or counterclaim; (iii) the transactions
contemplated in Section 2.1 hereof are account purchase transactions, the Business will reflect
such transactions in its accounting books and records as absolute sales of Receivables to the
Bank, and the Business will reimburse and indemnify the Bank for all loss, damage and
expenses, including reasonable attorneys' fees, incurred in defending such transactions as
absolute sales of Receivables, or as a result of the recharacterization of such transactions; and
(iv) in the event of the commencement 'of any proceeding under any bankruptcy or insolvency
, laws by or against the Business, the Business will not :oppose or object to any motion by the
Bank seeking relief from the automatic stay provisions of such laws with respect to the Reserve
or the:Reserve Account or to any motion by the Bank with respect to the Receivables.
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SECTION 5: FORMS ANDPROCEDllJRES:',RESP0NSIBIUT,YFOR USE
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',~"t,,'";,5;l" \"Formsand Procedure.~.<' The'~Businesll;Willuse . only forms, agreements',.{'and
, advertisingimaterials supplied or approvedi bYlithetBank,.in'connection;with the ReCeivabl~~'and
,', will ;fellowialhprecedures thataresatisfaetory,to:ithe'tBankin,c'onnection.'with' the. usetof'rSuch
""'fotms,!lgreements,fand advertising'inaterials~i)ci\ .,~,'j>,,;;jjPi ;~b !j,jj ,'ipl)![,;ibr, 'roo;! 'jlWlltihli1[\
;.' ii;):i:.j~5.2 .1'>, Re~ponsibility.' . ;ThecBusiness'will~f~solel}'!ii:rbsponsible'ffor';tlie1iiiltt~i~jjcy,
i'completeness~lUid{aCcuracy.oftherrawidaWrelatinglo4h~R:.eeeiVables..its' p1i:paratij;)nlii\.;ltIi~~\m
;:tequited;'lmdritsi1tansm:issiontotheBank;!;aJ1dfiWiJ}~entf:ji,"~dllhGld.the'lBlmk;j ,"" ' .~l'S,
, i;~~lili~it';1es#tiW'e.'agents andenjploY~I1~~~;~~(~4lPaM~l!llf~o1Jable{l( . ,
{lwitl1>resPect~~aiiy,'claim:,orliabilitYjll~~t:tiVfftUc:if()f(llCtllig;Ui\riiliiih~mpbiil' :
,."bylt1l(iBuSiness~;"TheBusiness understlllit!OOthi\i\'tH'c::!foriri>&P.ioredit"applicationandttf , , , " d
it other;fdoCUillentatio~'the'Bank rsUppliC$~to~~~B}1$in~llsrsltE!\1ltFbereviewed ,&Y;l$~'}3_11's
'\\~ounSell'!'lis(!tb.e; Bank,' makes1;no 'represel1tllti1ilAj((J~~;i!iISl'ito:ifthefreDforeealiiili~'~ffill1ie
"}'Busmesll!!llstatel'6f theiricomplianceJwithttllSPli~l~&i$1illnQ;stlltll"Iaws; "TherBattk1!al'l'dlithe
Business agree that the Bank is the owner of all Receivables purchased byitheBank.hereUfi'der,
. 'andtthlit: all activities 'of. the Bank'in 'cortrlectioIiiWith'1t1fe"colleelltlft10f Receivables, geIieration of
'iiifotn:l8.tionand 'processing of data, 'is:fet~the"li:Cc'ci'Uht'offl!he'jBiI'ok's 'own affairs; 'arilJi',that'the
, - _:."
" infohnation generated in connectionftheieWith. is; tlre'prdperty 6f the Bank. The BusiD.ess"will
indeirthifyand'hold the Bank,its cdnttactOfs,and'their'tespective'agents'and employees;liatrnless
, from (lUid payallreasonable attorneys"febswithirespeetito)'any'loss or claim involving breach of
warranty or representation by the Business and from any'Ioss 'or'claim by any Customer relating,
to goods and/or services (or the manner or type of their sale or provision) giving rise ' to
Receivables purchased by the Bank hereunder.
SECTION 6: POWER OF ATTORNEY
The Business appoints the Bank as its attorney-in-fact to receive, open, and dispose of alii
mail addressed to the Business pertaining to Receivables; to endorse the Business's name upon
any notes, acceptances, checks, drafts, money orders, and other evidences of payment of
Receivables that may come into the Bank's possession, and to deposit or otherwise collect the
same; and to do all other acts and things necessary to carry out the terms of this Agreement. This
power, being coupled with an interest, is irrevocable while any Receivable owned by the Bank
shall remain unpaid.
5
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SECTION 7: ~PPL~CA..~ LAW
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This Agreement shall be governed by, construed and enforced according to the laws of
the State of Pennsylvania,
SECTION 8: DEFAULT
8.1 Events of Default. The following events will constitute a default (a "Default")
under the terms of this Agreement: (a) the Business fails to pay the Repurchase Obligation or any
other payment obligation of the Business under this Agreement on demand or the Business fails
to pay any indebtedness of the Business owed to the Bank pursuant to its terms; (b) the Business
breaches the representations set forth in Section 4.1(d) or fails to turn over remittances on
Receivables to the Bank in accordance with Section 2.4 hereof; (c) except for the obligations
described in Sections 8.l(a), and 8.1(b) hereof, the Business fails to perform any obligation,
covenant or liability in connection with this Agreement within ten (10) days after the date that
written notice thereof is given to the Business; (d) any warranty, representation or statement
whenever made by the Business in connection with this Agreement proves to be false in any
material respect when made, or the Business fails to disclose to the Bank that any such warranty,
representation or statement has become untrue in any material respect; (e) dissolution or
termination of the Business if the Business is a corporation, partnership, or other entity, or if the
Business is an individual, the death of such individual; (f)the Business's insolvency; (g) the
assignment for the general benefit of the Business's creditors, the appointment of a receiver or
trustee for its assets, the commencement of any proceeding under any bankruptcy or insolvency
laws by or against the Business or any proceeding for the dissolution or liquidation, settlement of
claims against or winding up of its affairs; (h) the termination or withdrawal of any guaranty for
the Business's Obligations; (i) the Business fails to pay when due any tax imposed on it or any
tax lien is filed against the Business or any of its assets; (j),any judgment against the BuSiness
remains unpaid, unstayed on appeal, undischarged, unbonded ,or undismissed for a period of
thirty (30) days; (k) the Business discontinues its business as a going concern; or (1) the Bank in
good faith deems the prospect of the Business's payment or performance of its Obligations to
have been impaired.
8.2 Effect of Default. Upon the occurrence of any Default, in addition to any rights
the Bank has under this Agreement or applicable law, the Bank may immediately terminate this
Agreement, at which time all Obligations the Business owes to the Bank will immediately
become due and payable without notice, and the Bank's obligations to the Business hereunder
will cease. After the occurrence of a Default, the Bank will have the right to withhold any
further payments to the Business, and none of the Bank's rights or collateral will be adversely
affected thereby.
SECTION 9: NON-LIABILITY OF BANK: RELEASE
Except for a breach by the Bank of this Agreement, the Business hereby releases,
discharges, and acquits the Bank, its officers, directors, employees, participants, successors and
assigns from any and all claims, demands, losses, and liability of any nature which the Business
ever had, now or hereafter can, shall or may have in connection with or arising out of the
transactions contemplated herein or the documentation hereof. In addition to the provisions of
this Section and Section 5,2, the Bank shall not be liable for any indirect, special or
consequential damages, such as loss of anticipated revenues or other economic loss in connection
with or arising out of any default in performance hereunder or other matter arising herefrom,
Nor shall the Bank be liable for any errors of judgment or mistake of fact when acting as the
6
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Business's attorne~~int,.pursuant to Section 6, or liable fo.eluj 'in the 'performance of th,~
Bank's duties caused by strike, lawsuit, riot, civil disturbance, fire, shortage of supplies or
materials, or any other cause reasonably beyond the Bank's control.
SECTION 10: EFFECTIVE DATE: TERMINATION: BINDING EFFECT
This Agreement will be effective when accepted by the Bank, and will continue in full
force and effect until the earlier of: (a) one year after the effective date of this Agreement; or (b)
sixty (60) days after written notice of termination has been given by one party to the other (in
each case subject to immediate termination upon a Default); and the term of this Agreement will
automatically be extended for periods of one year each following its otherwise scheduled
termination, subject to Section 8.2 above and to the parties' rights to terminate this Agreement
under clause (b) of this Section 10. Upon termination of this Agreement, the Business, will pay
all of its Obligations to the Bank; and in any event the Business will remain liable to the Bank
for any deficiency remaining after liquidation of any collateral; and the Bank may withhold any
payment to the Business unless supplied with an :indemnity satisfactory to the Bank. This
Agreement shall bind the Business and the Business's heirs, executors, successors and assigns
and shall inure to, the benefit, of the Bank and the Bank's successors, and assigns. ' The Business
agrees that the Bank may delegate its duties hereunder, but that the, Business may not do so
without the Bank's prior written consent. '
SECTION '11: AITORNEY'S FEES: PAST-DUE ,QBhIGATIONS: ',WAIVER:,
SEVERABILITY: HEADINGS: ENTIRE AND coN'tiott-md AGREEMENT:,
NOTICES: COUNTERPARTS
The Business, wilL~~yallr~~na!>le ex~pses incurred,; bY!4e'lij~,:~:!lOI)I1l:C~tiQll,fiwith.
the execution of this Agreement, including expenses incurred in connection with the filing of
firiancing statements, continuation statements and record:searches'uAl),iPast:-4u~pbligations of
the Business arising under this Agreement shall bear interest at the IIllDillnum nonusurious rattl
permitted under applicable state or federal law. The Busines~ h!,reby, YflIires ,~i demand
(other than demand pursuant to Section 3.2 hereof), presentmenffciipaymtirtf,iiotice of diShonolr
or default, notice of intent to accelerate, notice of acceleration, protest and,notice of protest and
diligence in collecting and bringing of suit against the BUSiness. Upon liquidation of any
collateral, settlement or prosecution of a dispute with any Customer, or enforcement of any
obligation of the Business hereunder, the Business will pay to the Bank, and the Bank may
charge to the Business's account, all costs and expenses incurred, including reasonable attorneys'
fees, and such costs, expenses and fees shall constitute part of the Business's Obligations. No
delay or failure on the Bank's part in exercising any right, privilege, or option hereunder shall
operate as a waiver of such or of any other right, privilege, or option, and no waiver, amendment
or modification of any provision of this Agreement shall be valid unless in writing signed by the
Bank, and then only to the extent therein stated. Should any provision of this Agreement be
prohibited by or invalid under applicable law, the validity of the remaining provisions shall not
be affected. The headings herein are for convenience only, and shall not define or limit th,~
scope, extent, meaning or intent of this Agreement. This Agreement embodies the Business's
entire agreement as to its affiliation with the Bank's BusinesslManager program, although the
Business anticipates that the Bank will subsequently outline certain depository and other bank
procedures. In the event of any inconsistency between this Agreement and any other agreement
signed by the Business and the Bank in connection with this Agreement, including without
limitation, any Additional Security Documents, the terms and provisions of this Agreement shall
control and the terms and provisions of any such other document shall be ineffective to the extent
7
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of any such inconsistency. ~y notice, request or demand to be given hereunder will be deemed
to be given when deposited with a delivery service addressed to, or sent by registered or certified
mail to, the address of the recipient listed at the beginning of this Agreement. This Agreement
may be executed in multiple counterparts, which when taken together shall constitute one and the
same Agreement.
SECTION 12: SPECIAL STIPULATIONS
THE UNDERSIGNED ACKNOWLEDGES THAT THIS AGREEMENT CONTAINS A
RELEASE OF CLAIMScAND WAIVERS OF CERTAIN RIGHTS,AND THAT THIS
AGREEMENT HAS BEEN FULLY UNDERSTOOD PRIOR TO EXECUTION. ..
BUSINE, ..,SS~:,~ e~.Inc.
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ACCEPTANCE:
This AgreemenHsa~ted tni~"'''fo'1" <';c'day of )-<;S",,~'" &.:;
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o Copyright 1996 by Private Bus~ess, Inc. All Rights Reserved. BuslnesslManager4D is a registered tnldemark of Private Business, Inc.
0896,PBI Section 3,( revised by Pennsylvania StaCe Bank 0896,
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PROMISSORY NOTE 0
.
Borrower: Slreelgard, Inc. (TIN: 25-1626665)
405 Helser Lane
Carlisle, PA 17013
Lender: PENNSYLVANIA STATE BANK
Camp Hili
2148 Markel Slreet, P.O. Box 487
Camp Hili, PA 17001-0487
Principal Amount: $425,000.00 Interest Rate: 0.000% Date of Note: December liO, 1997
PROMISE TO PAY. Streetgard, Inc. ("Borrower") promises 10 psy to PENNSYLVANIA STATE BANK ("Lender"), or order, In lawful money of the
United States of America, on demand, the principal amount of Four Hundred Twenty Five Thousand & 00/100 Dollars ($425,000,00) or so much
as may be outstanding, together with Interest at the rate ar 0.000% per annum on the unpaid outstanding principal balance of each advance.
Inlerest shall be calculated from the date of each advance until repayment of each advance.
PAYMENT, Borrower will pay this loan Immediately upon ~ender's demand. Inleresl on Ihis Note is compuled on a 365/365 simple interesl basis;
that I~, by applYIng the ratIo of the annual ,mterest rate over the number of days In a year, multiplied by the outstanding principal balance, multiplied by
the actual number of days the principal balance Is outstandIng. Borrower will pay Lender at Lender's adtlress shown above or at such othe~'place as
Lender may designate in writing. Unless otherwise agreed or required by applicable Jaw, payments will be applied firs' to accrued unpaid intElrest, then
to principal, and any remaining amount to any unpaid collection costs and late Charges.
DEF~UL T. Borrower will be in default if any of the following happens: (a) Borrower fails to mak!3 any payment when due. (b) Borrower breaks any
promise Borrower has made to Lender, or Borrower fails to comply with or to perform when due any other term, obligation, covenant, or condition
contained in this Note or any agreement related to this Note, Or In any other agreement or loan Borrower has with Lender. (c) Borrower defaults under
any loan, extension of credit, security agreement, purchase or sales agreement, or any other agreement, in favor of any other creditor or pE~rson Ihat
may materially affect any of Borrower's p.roperty or Borrower's ability to repay this Note or perform Borrower's obligations under this Note or any of Ihe
Related Documents. (d) Any representation or statement made or furnished to Lender by Borrower or on Borrower's behalf is false or misleading in any
material respect either now or at the time made or furnished. (e) Borrower becomes Insolvent, a receiver Is appointed for any part of Borrower's
property, Borrower makes an assignment for the benefit of creditors, or any proceeding Is commenced either by Borrower or against Borrower under
any bankruptcy or Insolvency laws. (f) Any creditor trtes 10 take any of Borrower's property on or in which Lender has a lien or securily inlerest. This
includes a garnishmenl of any of Borrower's accounts wllh Lender, (g) Any gU8rantor dies or any of Ihe'olherevenls described in Ihis default seclion
occurs with respect to any guarantor of this Note. (h) A material adverse change occurs In Borrower's financial condition, or Lender believes the
prospecl of payment or performance of Ihelndebtedness Is Impaired. (I) Lender In good faith deems itself insecure,
II any default, olher Ihan a defaull in paymenl, Is curable and if Borrower has not been given a notice of a breach of the same provision of Ihis Nole
wilhin Ihe preceding twelve (12) months, it may be cured (and no event of defaull will have, occurred) if Borrower, after receiving written n!Jlice from
Lender demanding cure of such defaull: (al cures Ihe default within fifteen (15) days; or (b) if Ihe cure requires more Ihan filleen (15) days,
immediately initiates steps which Lender deems in Lender's sole discretion to be sufficient to cure the default and thereafter continues and con'1pletes an
reasonable and necessary sleps sufficlenl to produce compliance as soon as reasonably practical.
LENDER'S RIGHTS. Upon default, Lender may, after giving such notices as required by applicable law, deciare Ihe entire unpaid principal balance on
this Note and all accrued unpaid interest immediately due, and then Borrower will pay that amount. Lender may hire or pay someone else to help
collect this Note if Borrower does not pay. Borrower also will pay Lender that amount. This Includes, subject to any limits under applicable law,
Lender's attorneys' fees and Lender's legal expenses whether or not there is a lawsuit, Including attorneys' fees and legal expenses for bankruptcy
proceedings (including efforts to modify or vacate any automatic stay or Injunction), appeals, and any anticipated post-judgment collection sorvices. If
not prohibited by applicable law, Borrower also will pay any court costs, In addition to all other sums provided by law. If judgment is Emlered in
connection with this Note, interest will continue to accrue on this Note after judgment at the existing interest rate provided for in this Note. This Note
has been delivered 10 Lender and accepted by Lender In tha Commonwaalth 01 Pennsylvania. II there Is a lawsuit, Borrower agnees upon
Lender's requesl to SUbmit to the Jurisdiction 01 the courts of Cumberland County, the Commonwealth of Pennsylvania. This NotEr'shall be
governed by and construed In accordance with the laws 01 the Commonwealth of Pennsylvania.
DISHONORED ITEM FEE. Borrower will pay a fee to Lender of $20.00 if Borrower makes a payment on Borrower's loan and the check or
preauthorized charge with which Borrower pays is later dishonored.
RIGHT OF SETOFF. Borrower granls 10 Lender a contractual possessory securtly interesl in, and hereby assigns, conveys, delivers, ple,jges, and
transfers to Lender all Borrower's right, title and interest In and to, Borrower's accounts with Lender (whether checking, savings, or some other
account), including without limitation all accounts held jointly with someone else and all accounts Borrower may open in the future, excludin~l however
all IRA and Keogh accounts, and all trust accounts for which the grant of a security Interest would be prohibited by law. Borrower authorizes !_ender, to
Ihe extent permllted by applicable law, 10 charge or setoff all sums owing on Ihls Nole againsl any and all such accounts,
LINE OF CREDIT. This Nole evidences a revolving line of credit, Advances under this Nole may be'requesled only in writing by Borrower or as
provided in this paragraph. All communications, Instructions, or directions by telephone or otherwise to:.Lender are to be directed to Lender's office
shown above. The following party or parties are authorized as provided In this paragraph to request' advances under the line of credit until Lender
receives from Borrower at Lender's address shown above written notice of revocation of their authority: John K. Rich, President. Advances on the
Line will be based on 100% of Invoice. Proceeds of such advances, less the service charge and reserve amounts, will be deposited inlo
checking ac.count #151-0814-5 at Pennsylvania State Bank. Borrower agrees to be liable for all sums either: (a) advanced in accordance with Ihe
instructions of an authorized person or (b) credited to any of Borrower's accounts with Lender. The unpaid principal balance owing on U"lis Note al
any time may be evidenced by endorsements on this Note or by Lender's Internal records, Including dally computer print-outs. Lender will have no
obligation 10 advance funds under Ihis Note if: (al Borrower or any guaranlor is in defaull under Ihe terms of this Nole or any agreemenllhal Borrower
or any guarantor has with Lender, including any agreement made in connection with the signing of this Note: (b) Borrower or any guaranl'or ceases
doing business or is insolvent: (c) any guarantor seeks, claims or otherwise aUempts to limit, modify or revoke such guarantor's guarantee o'f this Note
or any other loan with Lender; (d) Borrower has applied funds provided pursuant to this Note for purposes other than those authorized by Lender; or
(e) Lender in good faith deems itself insecure under this Note or any other agreement between Lender and Borrower.
ANNUAL REVIEW. The Loan commitment will expire one year from the date the Nole and Business Manager Merchanl Agreement are execuled,
Lender will review the Loan annually for renewals and extensions; such renewals and extensions to be granted predicated on the performance of the
company and guarantors and adherence to the Business Manager Merchant Agreement.
RESERVE ACCOUNT. Lender will relaln a ten percenl (10.00%) reserve of Ihe tace amounl of each receivable purchased, The relainage amounl Will
be deposited Into Money Markel Accounl #92()"'{)132"'{) al Pennsylvania Stale Bank. Excess retalnage shall be disbursed on Ihe 151h and tr,e last day
of eaoh month, j~!\ ,. '
BANKING RElATIONSHIP. You shall maintain your primary deposit account relationship with Pennsylvania State Bank.
FINANCIAL STATEMENTS. Furnish Lender with, as soon as possible, but in no event later than one hundred twenty (120) days after the. end of each
fiscal year, Guarantor's personal financial statement and federal income tax return. All financial reports required to be provided under this Agreement
shall be prepared in accordance with generally accepted accounting principles, applied on consistent basis, and certified by Guarantor as being true
and correct.
ADVANCES. Advances on the"Une will be based on 100% of invoice. Proceeds of such advances, less the discount and reserve amounts, will be
deposited inlo checking account #151...{)Bl4-5 at PennSylvania Slale Bank,
SERVICE CHARGE. The service charge 'on the Line will be three and threlrquarter percent (3.75%) of the face amount of each receivable plJrchased.
GENERAL PROVISIONS. This Note is payable on demand, The Inclusion of specific default provisions qr rig his 01 Lender shall nol preclud" Lender's
rightto declare payment of this Note on ils demand. Lender may delay or forgo enforcing any of lis rtg~1s or remedies under this Nole withoullosing
Ihem. Borrower and any other person who signs, guarantees or endorses this Note, to the extent allowed by law, waive presentment, dl3mand lor
payment, protest and notice of dishonor... .Upon any change In the terms of this Note, and unless other:wise expressly stated in writing, no party who
signs this Note, whether as maker, guarantor, accommodation maker or endorser, shall be released from liability. All such parties agree that Lender
may renew or extend (repealedly and for any lenglh of lime) this loan, or release any party or guarantor or collaleral; or impair, fail 10 reali,e upon or
perfect Lender's securtly Interest in the collaleral; and take any other action deemed necessary by Lender wilhout the consenl of or nolice 10 anyone,
All such parties also agree that Lender may modify Ihis loan without the consent of or nollce 10 anyone other Ihan Ihe party with whom Ihe modificalion
IS made. If any portion of this Note is for any reason determined to be unenforceable, it will not affect the enforceability of any other proviskms of this
Note.
CONFESSION OF JUDGMENT. BORROWER HEREBY IRREVOCABLY AUTHORIZES AND EMPOWERS ANY ATTORNEY OR THE PROTHONOTARY
OR CLERK OF ANY COURT IN THE COMMONWEALTH OF PENNSYLVANIA, OR ELSEWHERE, TO APPEAR AT ANY TIME FOR BORROWER AFTER
^ nCFA" T UNDER THIS NOTE, AND WITH OR WITHOUT COMPLAINT FILED, AS OF ANY TERM, CONFESS OR ENTER JUDGMENT AGAINST
..
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12-10.,.1991, ",',"' ".,','
Loan No 5900311-99
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Page 2
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BORROWER FOR :rH'E\~r:iTiRfpRINCipAE~BiiliAN' ';'''~'''1illli ST,;t:AlE'CHARGES, AND ANY AND ALL AMOUNTS
EXPENDED OR ADV"'N.CEP'?B~\'LEf.,II:5ER"!'lEu.l1N ",,'~QL, "'., ,~ISf ii!O:(E 'TOGETHER WITH INTEREST ON SUCH
AMOUNTS, TOGETHERWlTfll,CO$TS,;,OF;Sl;l~ ,paN~SM~I$,0Fq.n:li"'PERCENT(10%) OF THE UNPAID PRINCIPAL
BALANCE AND ACCRUED 'INTEREST'FOI:U;bJili/:i', '" ",'.!tl/'Af>!'l'i'EV!:Nt,NOTd'E:SS,>lTHAN;FIVE'HUNDRED DOLLARS ($500) ON WHICH
JUDGMENT OR JUDGMENTS ONE OR MOAEEXECillQ S'MAYJSSVI:,IMMI:DIl\1E~1iNb~foRiSbDOING,THIS, NOTE OR A COpy OF THIS
NOTE VERIFIED BY'AFFIDAVmSHALk BEi'S,UFFiCll!Nr~ARRANT:i#iTHl!'Ali-n'fORIl1f,f,t:jFt\NTEP!!INTHIS NOTE TO CONFESS JUDGMENT
AGAINST BORROWER SHAL~ NOT BE EXHAUSTEP,IlWANYEXERCISE OFTHATiAI:fTI'!ORITVi<BUT SHALL CONTINUE FROM TIME TO TIME AND
AT ALL TIMES UNTlb'PAYMENTIN ,FULL OF'ALL AMOUNtS DUE UNDER THIS N01'!:IJ!!BOAROWER'HEREBY WAIVES ANY RIGHT BORROWER
MAY ,HAVE TO NOTICE Of! TO ,A, HFAAItl/CtITII"CONNr:(:VOTII ',W,ITH~NY'SUq,H.COII/m:, SSIONO.FJUDGMENT, EXCEPT ANY NOTICE AND/OR
HEARING REQUIRED UNDER APPLICABL'E LAW''WiTHl'RE~PECT TO' EXECUTlOTII'OF THE JUDGMENT. AND STATES THAT EITHER A
REPRESENTATIVE OF LENDER SPECIFICALLY'CAl~EP;'THIS'COTIIFI:SSIOTII'OF JUDGMENT PROVISION TO BORROWER'S ATIENTION OR
BORROWER HAS BEEN REPRESENT1;D By'lTIIDEPETIIOENt LEGAL COUNSI:t:,'"" ' '
PRIOR TO SIGNING THIS, NOTE, BORROWER f'lJ:/lD AND UNDI:RlITOOD ALj., THI: PRpVISIONS OF THIS NOTE. BORROWER AGREES TO
THE TERMS OF THE NOTE AND ACKNOWLED,GES RECEIPT OF A CQMflI,.ETED e<lPY OF THE NOTE.
THIS NOTE H"S BEEN SIGNED AND SEALED BY Tfl):! U:lPERSIGNI:P.
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LENDER:
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PENNSYLVANIA STATE BANK
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731811376
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PAGE: 02/02
73181075
pq.:lC: iJ2/02
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MODIFICA nON ADDENDUM TO THE BUSINESSlMANAGER~
AGREEMENT WITH BUSINESSES AND PROFESSIONALS
Upon siJnature by both partics, the BUlinesslMal1agB~ Allrrement with Budneuel and
Profclllonal, IntDr"d into U of \bel Tlh day of JlUlaarr, 1m, by and between
P.nMYlvl..l. Sa.t, Dlak (the "Bank") and Sh'eetprd, IDC. (th. "Bualnell"')
SIlaII hCl'lby be modl!\.d ~ provide Ihe followlnl:
Tho fint ,,,"hfnc. of S'I!\iO" 2, I A..illfllNlM and 11.1. ."-11 be del,1Ied Md repllCed with
the followina:
The Bllnk. hereby purcha,es from the Business Il11d 1"- Dual... hereby _IN and ilc:U,
to the Ow u.blllJluUI owner, the DUllnlll!" entire in1.lnm in IQCb ofib cum:ntly
oUlstandlll1 ~i...tllO$ II are d.lCrlbcId on auaclled Exhibl12.1. II VitUlli... Iblure
Rce;ci"abIClll .'ll........okd by Imoion it ckllven to tho Bank; Drovldcod. ""_, th!olat no
'Ime shaU the totII tlUUtalId1na Face AmOllllt of Rleliv,bllla purohued by Ib, BII1k
'ltcwdS 6.1......00 WlI... q,ad to by the Bank..
This Modification Addendum IhaII be .ft"eative U orlhe ... day or lUllWY. I \l\l91nd
oxpire on the 29" dII)' of Jan\Wy, 1999,
All oCher IellUlft provislona of the Business! Malltlgfrtl ApwlJQlll1t wilb Businesses
and Prot....lond.lballltlDlln In tbIl follliC and etT'CL
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73181076
Dq;;r: ; J2'" :).::'
MODIFICATION ADDENDVM TO THE BVSINESSIMA^~GER~
AGREEMENT
Willi BUSINESSES AND PROFESSIONAl...S
Upon .ijJMtllrc by both parti,,!. the BusineulMollll6rT ^w-cm""t with BlItinos_ and
Profeuionals entered Into &4 of \he 30lh &ly of April, I 99\lt.by and betw~
Pennlylvani. St8te Bd (the "BAnk") and S~etaMc1 (the "ISU&!lJtSsj shill! hereby be
Ull.1dif\td to provide Ihe !ollcwinll:
The first sentenu of Section 2.1 Auianm~nl Oft" Sa!' .h411 be d,llfted ,,00 r'ploced with
the following,
The 84n1< hertl>y purclwcs from the BusiMl. an4 the BUfinel, hereby u'lllU and seU,
10 !hot DlIIll u ablOlute ownct', Cho Buainc.... ct\tlrc Inttrtlt In,.uch Of'itlllUttCntly
QUbtaixtilllllloccinbles 11$ are dC1Cribod 01\ attu.hcd Eldllbit 2,\ witlIholdlna 25%
againot lIIOll-paymtal. .. \\'Ill III ill future k_ivablM rcp:elCl\ted by Invoi,," it deli v.,.
:0 lb. BWj ~ however, \hat at no time shall die lOW outsl8nding Fece AmOlatt
ot'Receiw.bli. pwilhl..c by ~ Bank Ilxceed $120,000.00 UIlI... avn:ed rob)' the Bank,
Thi., Modifioltion Addcltdum Iha1I bo .ft~ve u ot'lhe 10th dllY or April, 1999 and
expitl Ollllhe 3111 day ofJull'. 1999.
BANk
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All othtr IcrmS and provisioas of the BUlineI"M~"'r Apement with 8U1ine.lCls and
ProCc:alonals lIIIaIl remain in f\l1I force: lIJ\d dreet.
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o PROMISSORY NOTE 0,
Borrower: Slreetgard, Inc. (TIN: 25-1628665)
405 Helser Lane
Carlisle, PA 17013
Lender: PENNSYlVANIA STATE BANK
Camp Hili
2148 Markel Slreel, P.O. Box 467
Camp Hili, PA 17001-0487
Principal Amount: $95,264.22 Initial Rate: 9.750% Date of Note: June 10, 1999
PROMISE TO PAY. Slreelgard, Inc. ("Borrower") promises 10 pay 10 PENNSYLVANIA STATE BANK ("Lender"), or order,ln lawlul money ollhe
United Stales 01 America, Ihe principal amounl 01 Ninety Five Thousand Two Hundred Sixty Four & 22/100 Dollars ($95,264,22), 10g"lher with
inlerest on the unpaid principal balance from June 10, 1999, unlll paid In full.
PAYMENT. Borrower will pay this Joan on demand, or If no demand Is made, In one principal payment of $95,264.22 plus Interest Or! June 10,
2001. This paymenl due June 10,2001, will be lor all principal and accrued Interesl not yel paid. In addition, Borrower will pay regular
monlhly payments 01 all accrued unpaid Inleresl due as 01 each payment date, beginning July 10, 1999, with all subsequentlnleresl payments
10 be due on Ihe same day 01 each monlh aner Ihat. Interesl on this Note Is computed on a 365/365 simple interest basis; that is, by applying the
ratio of the annual interest rate over the number of days in a year, mUltiplied by the outstanding principal balance, multiplied by the aclual number of
days the principal balance is outstanding. Borrower will pay Lender at Lender's address shown above or at such other place as Lender may designate
in writing, Unless olherwlse agreed or required by applicable law, payments will be applied first to accrued unpaid Interest, then to principal, and any
remaining amount to any unpaid collection costs and late charges.
VARIABLE INTEREST RATE. The Interest rate on this Note Is subject to change from lime to time based on changes in an index which is the
Pennsylvania State Bank's Base Lending Rate (the "Index"). The Index Is not necessarily the lowest rate charged by Lender on its loans an,j is set by
Lender in its sole discretion. If the Index becomes unavailable during the term of this loan, Lender may designate a substitute index after notifying
Borrower. Lender will tell Borrower the current Index rate upon Borrower's request. Borrower understands that Lendi:!r may make loans based on
other rates as well. The Interest rate change will not occur more often than each Day. The Index currently Is 8.000% per annum. The Interest rate
to be applied to Ihe unpaid principal balance olthla Nole will be at a rate 011.750 percentage polnls over Ihe Index,resultlng In an l!hltlal rate
of 9.750% per annum. NOTICE: Under no circumstances will the interest rate on this Note be more than the maximum rate allowed by applicable law.
PREPAYMENT. Borrower may pay without penalty all or a portion of the amount owed eariler than it is due, Early paymenls will not, unless agreed to
by Lender in writing, relieve Borrower of Borrower's obllgatlon to continue to make payments under the payment schedule. Rather, they will reduce the
principal balance due.
LATE CHARGE. II a payment Is 15 days or more late, Borrower will be charged 10.000% 01 Ihe regutarty scheduled paymenl "r $50.00,
whichever Is greater.
DEFAULT, Borrower will be in default If any of the following happens: (a) Borrower falls to make any payment when due, (b) Borrower breaks any
promise Borrower has made to Lender, or Borrower fails to comply with or to perform when due any other term, obligation, covenant, or condition
contained in this Note or any agreement related to this Note, or in any other agreement or loan Borrower has with Lender. (c) Borrower defaults under
any loan, extension of credit, security agreement, purchase or sales agreement, or any other agreement, in favor of any other creditor or person that
may materially affect any of Borrower's property or Borrowe~s ability to repay this Note or perform Borrower's obligations under this Note or any of the
Related Documents. (d) Any representation or statement made or furnished to Lender by.Borrower or on Borrower's behalf is false or misleaeling in any
material respect either now or at the time made or furnished. (e) Borrower becomes Insolvent, a receiver is appoInted for any part of Borrower's
property, Borrower makes an assignment for the benefit of creditors, or any proceeding is commenced either by Borrower or against Borrower under
any bankruptcy or Insolvency laws. (f) Any creditor tries to take any of Borrower's proPElirty on or In which Lender has a lien or security intelresl. This
includes a garniShment of any of Borrower's accounts with Lender. (g) Any guarantor dies or any of the other events described in this default section
occurs with respect to any guarantor of this Note. (h) A material adverse change occurs In Borrower's financial condition, or ,Lender believes the
prospect of payment or performance of the Indebtedness Is Impaired, (I) Lender In good faith deems itself insecure,
II any default, other than a default in payment, Is curable and II Borrower has not been given a nolice of a breach of the same provision 0'1 this Note
within the preceding twelve (12) months, it may be cured (and no event of default will have occurred) if Borrower, after receiving wriUen notice from
Lender demanding cure of such defaull: (a) cures the default within fifteen (15) days; or (b) if the cure requires more than fifteen (15) days,
immediately initiates steps which Lender deems In lender's sole discretion to be sufficient to cure the default and thereafter continues and completes all
reasonable and necessary steps sufficient to produce compliance as soon as reasonably practlcal.
LENDER'S RIGHTS. Upon default, Lender may, after giving such notices as required by applicable law, declare the entire unpaid principal balance on
this Note and all accrued unpaid Interest Immediately due, and then Borrower will pay that amount. Lender may hire or pay someone else to help
collect this Note if Borrower does not pay. Borrower also will pay lender that amount. This Includes, subject to any limits under applicable law,
Lender's a"orneys' fees and Lender's legal expenses whether or not there Is a lawsuit, Including a"orneys' fees and legal expenses for bankruptcy
proceedings (including efforts to modify or vacate any automatic stay or Injunction), appeals, and any anticipated post-judgment collection services, II
not prohibited by applicable law, Borrower also will pay any court costs, In addition to all other sums provided by law. If judgment is entered in
connection with this Note, interest will continue to accrue on this Note after judgment at the Interest rate applicable to this Note at the time judgment is
entered. This Note has been delivered to Lender and accepted by Lender In the Commonwealth of Pennsylvania. It there Is ,II lawsuit,
Borrower agrees upon Lender's requesl to submit to Ihe lurlsdlcllon 01 Ihe courts 01 Cumberland County, the Commonwealth of Pennsylvania,
This Note shall be governed by and construed In accordance with Ihe laws 01 the Commonwealth 01 Pennsylvania.
DISHONORED ITEM FEE. Borrower will pay a fee to Lender of $20.00 if Borrower makes a payment on Borrower's loan and the check or
preauthorized charge with which Borrower pays is later dishonored.
RIGHT OF SETOFF. Borrower grants to Lender a contractual security Interest in, and hereby assigns, conveys, delivers, pledges, and transfers to
Lender all Borrower's right, title and interest in and to, Borrower's accounts with Lender (whether checking, savings, or some other account), including
without limitation all accounts held jointly with someone else and all accounts Borrower may open in the future, excluding however all IRA etnd Keogh
accounts, and all trust accounts for which the grant of a security Interest would be prohibited by law. Borrower authorizes Lender, to the extent
permi"ed by applicable law, to charge or setoff all sums owing on this Note agsJnst any and all such accounts.
DEFAULT INTEREST RATE. In the event of default for which the Lender does not accelerate the Loan, including the failure of Borrower to provide the
financial slatemenls as required hereunder or under the Loan Agreement, the applicable Interest rate on the Loan, for a period beginning three (3) days
after wrltlen notice of such default and ending upon the curing of said noticed default, shall increase one quarter of one percent (,25%) for thE! first thirty
(30) days of said default and increase an additional one quarter of one percent (.25%) during each thirty (30) day period thereafter during which the
noticed default continues, Such defaull interest rate shali apply to the outstanding principal balance oflhe Loan, Upon the curing of the noticed
default, the interest rate on the Loanshali revert to the initially agreed-upon Interest rate effective on the date on which the default is cured,
GENERAL PROVISION'S.' This 'Note is payable on demand.~' The' Inclusion of specific default provisions or rights of Lender shall not precludl:! Lender's
right to declare payment 6f this Note on its demand. Lender may delay or forgo enforcing any of its rights or remedies under this Note wit~lout losing
them. Borrower and any other person who signs, guarantees or endorses this Note, to the extent allowed by law, waive presentment, dl3mand for
payment, protest and notice of dishonor. Upon any change In the terms of this Note, and untess olherwise expressly stated in writing, no party who
signs this Note, whether.as maker, guarantor, accommQdation maker or endorser, shall be released from liability. All such parties agree that Lender
may renew or extend (repeatedly and for any length of time) this loan, or release any party or guarantor or collateral; or impair, fail to realize upon or
perfect Lender's security interest in the collateral; and take any other action 'd~med necessary by Lender without the consent of or notice to anyone.
All such parties also agree that Lender may modify this loan without the consent of or notice to anyone other than the party with whom the modification
is made. If any portion of this Note Is for any' reason determined to be unenforceable, It will not affect the enforceability of any other provisi(Jns of this
Note.
CONFESSION OF JUDGMENT. BORROWER HEREBY IRREVOCABLY AUTHORIZES AND EMPOWERS ANY ATTORNEY OR THE PROTHONOTARY
OR CLERK OF ANY COURT IN THE COMMONWEALTH OF PENNSYLVANIA, OR ELSEWHERE, TO APPEAR AT ANY TIME FOR BORROWER AFTER
A DEFAULT UNDER THIS NOTE, AND WITH OR WITHOUT COMPLAiNT FILED, AS OF ANY TERM, CONFESS OR ENTER JUDGMENT AGAINST
BORROWER FOR THE ENTIRE PRINCIPAL BALANCE OF THIS NOTE, ALL ACCRUED INTEREST, LATE CHARGES, AND ANY AND ALL AMOUNTS
EXPENDED OR ADVANCED BY LENDER RELATING TO ANY COLLATERAL SECURING THIS NOTE TOGETHER WITH INTEREST ON SUCH
AMOUNTS, TOGETHER WITH COSTS OF SUIT, AND AN ATTORNEY'S COMMISSION OF TEN PERCENT (10%) OF THE UNPAID PRINCIPAL
BALANCE AND ACCRUED INTEREST FOR COLLECTION, BUT IN ANY EVENT NOT LESS THAN FIVE HUNDRED DOLLARS ($500) ON WHICH
JUDGMENT OR JUDGMENTS ONE OR MORE EXECUTIONS MAY ISSUE IMMEDIATELY; AND FOR SO DOING, THIS NOTE OR A COpy OF THIS
NOTE VERIFiED BY AFFIDAVIT SHALL BE SUFFICiENT WARRANT. THE AUTHORITY GRANTED iN THIS NOTE TO CONFESS JUDGMENT
AGAINST BORROWER SHALL NOT BE EXHAUSTED BY ANY EXERCISE OF THAT AUTHORITY, BUT SHALL CONTINUE FROM TIME TO TIME AND
AT ALL TIMES UNTIL PAYMENT IN FULL OF ALL AMOUNTS DUE UNDER THIS NOTE. BORROWER HEREBY WAIVES ANY RIGHT BORROWER
."" 'J'\I, Tr\ ~rr\T'r'r r\n T'-' ^ u(":"^nl'd~ '''1 ""'''''''' "ICr'T''-'''' IAlIT!l ""'V C'lll"'U I"',...,""::.CC'C"r\", r\r tI''''''I''''''r~'T ,v-/"'..-,...,.... A'''' "I""-'I""~ .,',...."I""~
.
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06-10-1999i' "",,,;,;, ~\ 'Ii'ROMISSO~Y,NOTE;Ao~" B, ie_",. i\' '"
Loan No 5006,168-0", ,1 i'l ,ii\H:'~"'~J!IW,IW1'!'lirltJ'l1l11ea)~!,~,~t,,;u 'v ,;,.c,".
( . '~"".. ~ 1',!-i:N)j,E &~.C('tt...~~ ~ff^\_'~}'I?*t'1i~ii;:~Jl~tJJ ~:t'~(~ t~ 1:~(/'tY
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HEARING REQUIRED'UNDERAP,PLICABLElI\LAWf;WITHfRESp.EC'I?ii1i9~EXEelJ11C!l,,"Cll'" 1J7IE dlJDGMENT, AND5rATES THAT EITHER A
REPRESENTATIVE OF.LENDER SPECIFICAU:'f,CAaED, THIS CONFESSIONOI;"JUD~./IIENT~'PROV1SION TO BORROWER'S ATTENTION OR
BORROWER HAS BEEN REPRESENTED BYINDEpENDENUEGAL,C,OLlNSEL.:" ,::'H)qF..,."'\' "0"
PRIOR TO SIGNI,NGTIlIS, NOtE,BOR~6.V<<:RRi:Ab'ANI) UN,Q~~sl1?QD1'AiJ. ~:~~~SIONS OF THIS NOTE, INCLUDING THE VARIABLE
~~~:~~~~~~?VJ!l~?~S', ~~"!~Pr{ERAGR'?E~,I971J~,r~tll~~~i;'W.~l$~b'i~~P,,~<;~~Q~EDGES ,RECEIPT OF A COMPLETED
Page 2
THIS NOTE HAS BEEN SIGNED AND S~D,BY'"THEUNDERSIGNED~",~ji"'''PII'' ",'.,i,';: : "'.' , "'1'",
. ",.,,-, '';~!'''''. '. :_i~:X>V'- i~,J;Ji~-~/!j:'i#>)Pr't_I~~_~,Yt ~~-~~' ~~'_~o 'J]>" ,f..~..
BORROWER: . ,'-:'i'!)-rr~i~."~\j't,.l~:;~__:~t':~'!~-'~~~~_'\~"'! "1'1.. 1 ,.:
Slreelgard,Jn". ~~:;~'*~! l!''''!l.l~;;,~::;':::':~i:,~]!;'~i:i:', :e( ".' .. """
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LENDER: ''0'"
PENNSYLVANIA STATE BANK'
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--~ CQ ~T BANK CUMB PKWY
796-2699 PA ST BANK CUMB PKWY
774 P02
OCT 26 '99 11:44
,774 P06
OCT 26 '99 11:45
:r' ...
PENftlt;vn~a~ AI
, !;47E_
June 22, 1999
Cumberkuul P",boy ofT",.
n CUmberlan,{ Pflrkway
lIl,chanlcsbUl'g, PA 17055
ww....pask!ts'bank.com
717.-795,720/)
FAX: 717.,796-2699
Stock Trading Symbol: PLYN
f
John K. Rich
StreetGard, Inc,
405 Heiser Lane
Carlisle, PA 17013
Re: Business Manager account number 59003 I 199
Dear John;
Effective today's date we will no longer accept any invoices ofStreetGard, Inc. for
payment under the Business Manager program, This is necessary at this time to allow the
Bank to determine the collectability of those invoices already paid.
You will be notified by mail as to any changes in this policy. Should you have any
questions, please free to call Don Bonafede or myself at (717) 731-7272.
Sincerely,
('/~ Petttc.-
Alan Patton
Vice President, Market Manager
Cc: Don Bonafede
~
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796-2699 PA ST BANK CUMB PKWY
,- _ r'~,._~..'-'-< -' ",<,." -" ".,,~l";~-;L-':"--_:~:" 1<. 0 "x " -_""'~\
774 P05 OCT 26 ' 99 11 : 4=~
June 25, 1999
John K. Rich
Linda M, Rich
504 Heiser Lane
Carlisle, P A 17013
Re: Streetgard, Inc, accounts #590031199 and 500616801
Dear John or Linda;
Due to the large number of customer billing disputes related to invoices of Streetgard,
Inc. purchased by Pennsylvania State Bank, it is believed that the receipt of these
payments by the Bank is extremely doubtful.
This is an event of default under the Business Manager Agreement and related
Promissory Notes, As such we now declare the entire unpaid principal balance and all
accrued interest due and payable within 15 calendar days of this notice. This amount is
$717,790.79 as of to day's date. If certified or guaranteed funds in this amount are not
received within that time, legal collection activities will proceed against you.
We regret that these actions are necessary, but the increasing number of disputed invoices
leaves us no choice. You can call the Bank at (717) 731-7272 if you have any questions.
Sincerely,
Alan Patton
Vice President, Market Manager
,'-^
796-2699 PA ST BANK CUMB PKWY
- "
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774 P04
OCT 26 '99 11:45
June 25, 1999
10hn K. Rich
Linda M, Rich
17119 Carriage Dale Ct.
Spring, TX 77429
Re: Streetgard, Inc. accounts #590031199 and 500616801
Dear John or Linda;
Due to the large number of customer billing disputes related to invoices of Streetgard,
Inc. purchased by Pennsylvania State Bank, it is believed that the receipt of these
payments by the Bank is extremely doubtful.
This is an event of default under the Business Manager Agreement and related
Promissory Notes, As such we now declare the entire unpaid principal balance and all
accrued interest due and payable within 15 calendar days of this notice. This amount is
$717,790,79 as oftoday's date, If certified or guaranteed funds in this amount are not
received within that time, legal collection activities will proceed against you.
We regret that these actions are necessary, but the increllSing number of disputed invoices
leaves us no choice. You can call the Bank at (71 7) 731.7272 if you have any questions.
Sincerely,
Alan Patton
Vice President, Market Manager
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796-2699 PA ST BANK CUMB PKIJY
774 P03
OCT 26 '99
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June 25, 1999
John K. Rich
Linda M, Rich
116 Meals Drive
Carlisle, P A 17013
Re: Streetgard, Inc. accounts #590031199 and 500616801
Dear John or Linda;
Due to the large number of customer billing disputes related to invoices of Streetgard,
Inc. purchased by Pennsylvania State Bank, it is believed that the receipt of these
payments by the Bank is extremely doubtful.
This is an event of default under the Business Manager Agreement and related
Promissory Notes. A2, such we now declare the entire unpaid principal balance and all
accrued interest due and payable within 15 calendar days of this notice. This amount is
$717,790,79 as oftoday's date, If certified or guaranteed funds in this amount are not
received within that time, legal collection activities will proceed against you.
We regret that these actions are necessary, but the increasing number of disputed invoices
leaves us no choice. You can call the Bank at (717) 731-7272 if you have any questions.
Sincerely,
Alan Patton
Vice President, Market Manager
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796-2699 PA ST BANK CUMB PKWY
,
774 P02
OCT 26 '99 11:44
"-"---'"
Merchant Activity
STREETGARD, lNe
l2!l 0/9 7 - 10/26/99
Beginning Balanoe
$0.00
Debits~ Count Amount
Sales 363 1,968,756.21
Debit Memos 20 267,639,61
Fil\lllJce Charges 0 0,00
Miscellaneous Fees 0 0.00
TOlal Debits: $ 2,236.395,82
Credits:
Payments 124 (876,433,35)
Credit Memos 47 (398.180,65)
Discount. 0 0.00
ltelllms 40 1Il~ ,).1(. (95,264,22)
Chargebacks 92 on).w) 2
Total Credits: ($ 1,641,24H7)
Ac\J~""~
i,5'YS,'l7t 1S" (.1\td.i1,;
Tutal Number ofTransactions~ 686
Ending Balance
c co.c:JEl085
TOlal Batches
Tota' New Customers
173
143
(,'fl> '1\1..07 ",,1 J..l
Created 10/26/99 at 08:54 AM
PENNSYLVANIA STATE BANK
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796-2699 PA ST BANK CUMB PKWY
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555 P06 JUL 06 '99 14:01
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, '10/29/98
,WESTFIELD POLICE DEPARTMENT
23 ELM STREET
WESTFIELD, NY 14787
. RE: STREETGARD, INC
,Dear Customer:
'Our au4itot'S are now engaged in an e>'"minR"on of our financial'statements. In COlllleCtioD
,therewith, they desire to confirm the balance due us on your account, which our records
: indicate is $2,395.00 as of the date of this letter.
; Please iDdieate in the space below whether or DOt this is in agreement with your records
, at that date. If 11Ot, please furnish any infolJDlllion you may lulve which will ~st !he
: aUditors in m:onciling the difference..
, Sincerely, .
~MJ~
, Diane M. Keifer \:'- D
STREETGARD, INC
After sigDUIg and daCiDgyouneply, please fax your reply directly to (717) 796-3165.
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We greatly appreciate your assistance.
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796-2699 PA ST BANK CUMB PKWY
555 P07
JUl 06 '99 14:02
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To: llus,iness Manager Coordinator
The above balance of$ 2,395.00 agrees with my records as of 10/29/98 wilh the following
exceptiollS (if any):
We! do not owe StreQLP.Uarrl anvthiun!
We never purchaserl from them, only inquired as to ",hat lI'II!'I available.
You Iilay contact me by Telephone at 518 9lt3-2244
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Title (if applicable): Chief of Police
Dale:
11-02-98
CATSKILL l'OUCE DEPARTMENT I STREETGARU, INC
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796 2699 PA ST BANK CUMB PKWY
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555 P08
JUL 06 '99 14:02
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To: Business Manager Coordinator
The above balance on 2,395,00 agrees with my records as of 10/29/98 with the following
exceptions (if any):
""" "At'!'! l\7l"l ltNnwr.",n"", OF TRJ:S COMPANY lIND HAVE NEVER DONE llNY IlUSnn;:SS WITH
'1'fWII.
Signed by~ e ~ Date: 11-02-98
Title (if applicable): CHIEF OF l?OLIC~
HAMILTON POLICE DEPARTMENT / S~ETOARD, INe
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. "11/81] ~1Q98 12: 32 ' 5102426 .
':' VILLAGE OF MAloN7;~L~~I drP;:I~I.I"{ ~ 'i
2 PARK PLACE
MALONE. NEW YORK 12953
15181483-2424
AOORESS: STREETG.W> lHe
JUL 06 '99 14;02
PAGE i!l3
TO:
DIANE H ttEUER
DATE: 11/02/98
SUaJECT:
Diane,
Upon tl!eelviD8 your letter dtd anel attached we checked our rooc:orels, aad equip..at
but c:ou1.d not find any purchasea from yo"r cOlllpany. If you could adviae "s of vbac:
equipment/services were involved we mi8ht be abla to further assiat you.
SIGNED:
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To: Business Manager Coordinlllor
The above balance of S 2.395.00 agrees with .ny 1'I:cord~ as of 1 0/29/98 with the following
exceptions (if any):
The dbove balance does NOT agree with our records. We have not done business with
Streetgard since July 1997 when we had an $65 charge for telephone support on our
XCtHber p~ogrilll1. 1 have, nQ idea, where, ,YOl/"get tb.e abO,~e b.Alil.l\~\l,. WIl l\lY~, n.ot \l~<I.. (
, ,
requested, support from you on our XCaliber program over the jears.
Signedby: y1~RHM.I..~/ Dllte: 11/03/98
Title (ifappliClllblc):
Police Clerk
MACEDON POLICE DEPT. 1 STREE'fGARD, INC J-
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~ COMMERCIAL GUARANP,
Borrower: Streetgard,lnc. (TIN: 25-1628665)
405 Helser Lane
Carlisle, PA 17013
lender: PENNSYlVANIA STATE BANK
Camp Hili
2148 Market Street, P.O. Box 487
Camp Hili, PA 17001~487
Guarantor: John K. Rich and Linda M. Rich
405 Helser Lone
Carlisle, PA 17013
AMOUNT OF GUARANTY. This Is a guaranty of payment of 100.000% of the Note, Including wlthoutllmltallon the principal Note amount 01
Four Hundred Twenty Five Thousand & 001100 Dollars ($425,000.00).
GUARANTY. For good and valuablecorislderallon, John K. Rich and Linda M. Rich ("Guarantor") absolutely and unconditionally guarantee
and promise to poy,Jolntly and severally,to PENNSYlVANIA STATE BANK ("lender") or Its order, on demand, In legal tender of the Unlled
States of America, 100.000% of the Indebtedness (as that term Is deflned below) of Streetganl, Inc. ("Borrowe....) to Lender on the terms and
condlllons set forth In this Guaranty..i,Guarantor agrees that Lender, In lis sote dlscrellon, may determIne which portion of l30rrower's
Indebtedness to Lender Is covered by'Guarantor'a percentage guaranty.
DEFINITIONS. The following words shalll'~ve the, following meanings when used in this Gu~ranty:
Borrower. The word "Borrower" m~nS"'~igard,lnc.. '
Guarantor. The word "Guaranta(' means John K. Rich and Linda M. Rich, who are signing this Guaranty jolnUy and severally.
Guaranty. The word "Guaranly"~ns;'IhIs'Gus~nly'~de by Guarantor for the benefit of Lender dated' 12/10/97
Indebtedness. The wOrd~"!~;:,' ~~I!!eNOle,lnclUdlng (a) all principal, (b)alUnler8st, (c)!all.~te'charges, (d) a1lloa,n lees and
loan charges, and (e) alr. , ," e ~~nses relaUng to the Nate, or to any coOateraJ for the'NOle"" CoIklcllon costs and expenses
,Includewlthoul nmllallon,~' , ,,~~, and Lender's legal expenses, whether or not sulNs,lnslltU\8d.and attorneys' fees and legal
expenses forbanluuplcy, . ' "e"orts,lo,modify,or vacale any aulomallc stay orlnllJl1Cllo,,)I,:appealsi"and any anllclpated
-.pos":-Judg~tcOl~o.~..,< ',';~"I!I" ,_,.' ':;;i~~i.; . ,'...; ;;'::'.i';.~,!;,~;-;
Lender. The word'1.endlof" , nsl1E"'NSVLII~~:~AlE BANK,;ltss~ and assigns. " ", H!'!,";~Ii';j".; ,
Note~ ,The word "NotS"::;" '"nOle, or credUagreemenl,dated 12/10/97 ,.I,n!,-1h~!~dglnalPrtnclpallllllountof
,$425,000.00 fromBCliT..," ;,w!!!;!",l!ll,I1!~,of.,'e$nsIOns of, moqlllcationsof,"~AA~@.oficonsoUdaUons of, and
substitutions for the pro , !J1!!nt,',Nollce to Guarantor: The Note evidences a reYolvlngf~lne;of credUfrom Lender to
BorrOwer. ' " -, ~f,;'_'r';I.i,,'~'.., "". ,
Related Documents. The word$. _, I?,ocuments" mean and Include without limitation all promissory noles, creed agreen19nts, loan
agreements, envlronmenla1,~~" ~ti!l$"securlty agreements, mortgages, deeds of trust, and all other.lnslruments, agree,menls and
documents, whether now "I', ,"'';'" "'" ,,!lQ,,~ In connection with the Indebtedness. ," ",,,
MAXIMUM LIABILITY. The maxlmulllill8blUty,of'Gulirantorunderthls Guaranty shall not exceed at any cine lime 100.000% of the lIIIKlunt of the
Indebtedness descrlbed above, pluS all costs and expenses of (a) enforcement of this Guaranty and (b) colleCllon and sale of llIIl' collateral
(' ltiiS/!J'!!1g this Guaranty. ,..""f' " ,;,'", ,
, ,'\'l19 abo.ve,IImllali09 on liability ts'not.'iesb1cllon,Ontheamount of the Indebtedness of Borrower to Lender eUher In the aggregate or at anyone time.
, " If r:ender praserilty holds one or morequara~ues;tor h,ereafterrecelves, addlllonal 'guaranlles from, Guarantor, the righ~, of Lender under all guaranties
, shall be cumulative. This Guaranty 'shall 'not'(unloss'spectflCally provided below to the contrary) affect or Iljvalldateany such other guara,nties. The
liability of \3uarantor will be theaggregaleTl8bllltyof:Guaran,tor under the terms of t~ls Guaranty and any such. either unlerminatedguaranties.
NATURE OF GUAR~. Gu~~arilor;J~ten~s,togUarantoo at all times the perlormance and prompt payment when due, whether at maturity orMriler
by reason of acceleration or otherwise, of allln~ebtedness within the limits set forth In the preceding section pf this Guaranty. Thts Guaranty covers a
revolving line of credit end guarantor underatands and agrees that this guarantee shall be open and conllnuous unlll the line IIf credit Is
terminated and the Indebtedness Is paid In'lull, as provided below. The obligations of Guarantors shall be joint and several. Lender m..y proceed
against any of the Guarantors IndMdually, agalnst any group of Guarantors, or against all the Guarantors in one action, without aHecting the right of
Lender to proceed against other Guarantors for amounts that are covered by this Guaranty, Any Inability of Lender to proceed against anl' Guarantor
(whelher caused by acllons of a Guarantor or of Lender) will not affect Lende~s right to proceed against any or all remaining Guarantors for all or part
of the amounts covered by this Guaranty.
DURATION OF GUARANTY. This Guaranty will take effect when received by Lender without Ihe necessity of any acceptance by Lender, or any notice
to Guarantor or to Borrower, and will continua In full force until all Indebtedness shall have, been fully and finally paid and sallsfied and all other
obligations of Guarantor under this Guaranty shall have been performed In full. Release of any other guarantor or termination of any other guaranty of
the Indebtedness shall not affect the liability of Guarantor under this Guaranty, A revocation received by Lender from anyone or more Guar,.ntors shall
not affect the liability of any remalnlng Guarantors under this Guaranty. This Guaranty covers a revotvlng line of credit and It Is 'lpeClflcally
anticipated that f1uctuallons will oo<:ur In the aggregate amount of Indebtedness owing from Borrower to Lender, Guarantor 'lpeClflcally
acknowledges and agreea that fluctuations In the amount of Indebtedness, even to zero dollars ($ 0.00), shan not conslltute a termination of
this Guaranty. GUarantor's liability under this Guaranty shan terminate only upon (a) termination In writing by Borrower and Lender 01 the line
of credit, (b) payment of the Indebtedness In full In legal tender, and (c) payment In lull In legal tender of all other obligations 01 Guarantor
under thIs Guaranty.
GUARANTOR'S AUTHORIZATION TO LENDER. Guarantor authorizes Lender, without notice or demand and without lessening Guarantor's
liability under this Guaranty, from time 10 time: (a) 10 make one or more additional secured or unsecured loans to Borrower, to lease
equipment or other goods to Borrower, or otherwise 10 extend additional credit to Borrower; (b) to alter, compromise, renew, extend,
accelerate, or otherwise change one or more times the time for payment or other terms of the Indebtedness or any part of the Indl~btedness,
Including Increases and decreases of the rate of Interest on the Indebtedness; extensions may be repeated and may be for long~~r than the
original loan term; (c) to take and hold security for the payment of this Guaranty or the Indebtedness, and exchange, enforce, waive,
subordinate, fall or decide not to perfect, and release any such security, with or without the substitution of new collateral; (d) to release,
substitute, agree not to sue, or delll with anyone or more of Borrower's sureties, endorsers, or olher guarantors on any terms or In any
manner Lender may choose; (e) to determine how. when and what application of payments And credits shall be made on the Indl~btedness;
Loan No 5900311-99
COMMERCIAL GUARANTY
(Continued)
Page 2
(f) to apply such security and dlrecllhe order or manner 01 sale thereof, Including without limitation, any nonjudicial sale permitted by the
terms of the controlling security agreement or deed or trust, 8S lender In Its discretion may determtne; (gl to sen, transfer, assign, or grant
participations In all or any part of the Indebtedness; and (h) to assign or transfer this Guaranty In whole or In part.
GUARANTOR'S REPRESENTATIONS AND WARRANTIES. Guarantor represents and warrants 10 Lender that (a) no representations or agreements
of any kind have been made 10 Guarantor which would limil or quality in any way the terms of this Guaranty; (b) this Guaranty is executed at
Borrower's request and nol altha request ot Lender; (c) Guarantor has full power, right and authority to enter into this Guaranty; (d) the provisions of
this Guaranty do not conflict with or result in a default under any agreement or other instrument binding upon Guarantor and do not result in a violation
of any law, regulation, court decree or order applicable 10 Guarantor; (e) Guarantor has not and will not, without the prior wri<<en consent of Lender,
sell, lease, assign, encumber, hypothecate, transfer, or otherwise dispose of all or substantially all of Guarantor's assets, or any interest therein; (f) upon
Lender's request, Guarantor will provide to Lender financial and credit information in form acceptable to Lender, snd all such financial information
which currently has been, and allluture financial information which will be provided to Lender is and will be true and correet in all material respects and
fairly preseni the financial condition of Guarantor as of the dates the financial information is provided; (g) no material adverse change has occurred in
Guarantor's financial condition since the date of the most recent financial statements provided to lender and no event has occurred which may
materially adversely attect Guarantor's financial condition; (h) no litigation, claim, investigation, administrative proceeding or similar action (including
those for unpaid taxes) against Guarantor is pending or Ihreatened; (i) Lender has made no representation to Guarantor as to the creditworthiness of
Borrower; and Q) Guarantor has established adequate means of obtaining from Borrower on a continuing basis information regarding Borrower's
financial condition. Guarantor agrees to keep adequately informed from such means of any facts, events, or circumstances which might in any way
aHeet Guarantor's risks under this Guaranty, and Guarantor further agrees that Lender shall have no obligation 10 disclose 10 Guarantor any information
or documents acquired by Lender in the course of its relationship with Borrower.
GUARANTOR'S WAIVERS. Except as prohibited by applicable law, Guarantor waives any right to require Lender (a) to continue lending money or to
extend other credit to Borrower; (b) to make any presentment, protest, demand, or notice of any kind, including notice of any nonpayment of the
Indebtedness or of any nonpayment related to any collateral, or notice of any action or nonaction on the part of Borrower, Lender, any surety, endorse.r,
or other guarantor in connection with the Indebtedness or in connection with the creation of new or additional loans or obligations; (c) to resort for
payment or to proceed directly or at once against any person, Including Borrower or any other guarantor; (d) to proceed directly against or exhaust any
collateral held by Lender !rom Borrower, any other guarantor, or any other person; (e) \0 give notice of the terms, time, and place of any public or
private sale of personal property security held by Lender from Borrower or to comply with any other applicable provisions of the Uniform Commercial
Code; (t) to pursue any other remedy within Lender's power; or (g) to commit any act or omission of any kind, or at any time, with respect to any
'matter whatsoever.
If now or hereafter (a) Borrower shell be or become insolvent, and (b) the Indebtedness shall not at all times until paid be fully secured by collateral
pledged by Borrower, Guarantor hereby forever waives and relinquishes in favor of lender and Borrower, and their respective successors, any claim or
right to payment Guarantor may now heve or hereafter have or acquire against Borrower, by subrogation or otherwise, so that at no time shall
Guarantor be or become a "creditor" of Borrower within the meaning of 11 U.S.C. section 547(b), or any successor provision of the Federal bankruptcy
laws.
Guarantor also waives any and all rights or defenses arising by reason of (a) any "one action" or "anti-deficiency" law or any other law which mtly
prevent Lender from bringing any action, including a claim for deficiency, against Guarantor, before or efter Lendo~s commencement or completion 01
anyloreclosure action, alther judicially or by exercise of a power of sale; (b) any election ofremadies by Lender which deslroys or otherwise adverselY
alfe<:ts Guarantor's subrogation rights or Guaranto~s rights to proceed against Borrower for reimbursement, including without limitation, any loss 01
rights Guarantor may suffer by reason of any law limiting, qualifying, or discharging the Indebtedness; (c) any disability or olher defense of Borrower, of
any other guarantor, or of any other person, or by reason of the cessation ot Borrower's liability !rom any cause whelsoever, other than paymenlln "'II
in Iagal tender, of the Indebtedness; (d) any right to claim discharge of the Indebtedness on the basis of unjustllied impairment of any collateral lor the
Indebtedness; (e) any statute of Iimllations, if at any time any action or suit brought by Lender against Guarantor Is commenced there Is outstanding
Indebtedness of Borrower to Lender which Is not barred by any appllcabla statute of limitations; or (I) any defenses given 10 guarantors allaw or In
equity other than actual payment and performance of the Indebtedness. If payment is made by Borrower, whether voluntanly or otherwise, or by any
third party, on the Indebtedness and thereafter Lender is forced to remit the amount of that payment to Borrower's lrustee in bankruptcy or to any
simi1ar person under any federal or state bankruptcy law or law for the relief of debtors, the Indebtedness shal1 be consldered unpaid for the purpose of
enforcement of this Guaranty.
Guarantor further waives and agrees not to assert or claim at any time any deductions to the amount guaranteed under this Guaranty for any claim of
setoff, counterclaim, counter demand, recoupment :or similar right, whether such claim, demand or right may be asserted by the Borrower, the
Guarantor, or both.
GUARANTOR'S UNDERSTANDING WITH RESPECT TO WAIVERS. Guarantor warrants and agrees lhat each of the waivers set forth above is made
with Guarantor's full knowledge of its significance and consequences and that, under the circumstances, the waivers are reasonable and not contrary to
public pOlicy Dr law. If any such waiver is determined to be contrary to any applicable law or public policy, such waiver shall be effective only to the
~ent permitted by law or public policy.
l!-EHDER'S RIGHT OF SETOFF. In addition to aU liens upon and rights of setoff against the moneys, securities or other property of Guarantor given to
Lender by law, Lender shall have, with respect to Guarantor's obligations to Lender under this Guaranty and to the extent permitted by law, a
contractual security interest in and a right of setoff against, and Guarantor hereby assigns, conveys, delivers, pledges, and transfers to Lender all of
Guarantor's right, title and interest in and to, all deposits, moneys, securities and other property of Guarantor now or hereafter in the possession of or
on deposit with Lender, whether held in a general or special account or deposit, whether held jointly with someone else, or whether held for
safekeeping or otherwise, excluding however all IRA, Keogh, and trust accounts. Every such security interest and right of seloff may be exercised
without demand upon or notice to Guarantor. No security interest or right of setoff shall be deemed to have been waived by any act or conduct on th@
part of Lender or by any neglect to exercise such right of setoff or to enforce such security interest or by any delay in so doing. Every right of setoff and
security interest shall conlinue in full force and effecl untH such right of setoff or security interest is specifically waived or released by an instrumentl(l
writing executed by Lender.
SUBORDlNAT10N OF BORROWER'S DEBTS TO GUARANTOR. Guarantor agrees Ihat Ihe Indebtedness of Borrower to Lender, whether noW
eXisting or hereafter created, shalt be prior to any claim thai Guaranlor may now have or hereafter acquire against Borrower, whether or not Borrower
becomes insolvent. Guarantor hereby expressly subordinates any claim Guarantor may have against Borrower, upon any account whatsoever, to any
claim that Lender may now or hereafter have againsl Borrower. In the event of insolvency and consequent liquidation of the assels of Borrower,
through bankruptcy, by an assignment for Ihe benefit of creditors, by voluntary liquidation, or otherwise, the assets of Borrower applicable 10 the
payment of the claims of both Lender and Guarantor shall be paid 10 Lender and shall be first applied by Lender 10 the Indebtedness at Borrower to
Lender. Guarantor does hereby assign to lender an claims which it may have or acquire against Borrower or against any assignee or truslee in
bankruptcy of Borrower; provided however, that such assignment shall be effective only lor lhe purpose 01 assuring 10 Lender full payment in legal
tender of Ihe Indebtedness. II Lender s' wests, any notes or credit agreements now or here evidencing any debts or obligations of Borrower to
Guarantor shall be marked with a legen" ,Jt the same are subjecllo Ihis Guaranty and ShatlOJeliVered 10 Lender. Guarantor agrees, and Lender
hereby is aulhorized, in the name, of G~tor, fr.om time to time to execute and file financing: ! :--~mef\lls and continuation stalem~nts.a, nd to execute
such olher documents and to lake suc~r actions as Lender deems necessary or appropnC. 0 perfect, preserve and enforce lIs rlqhts under thiS
I',),
1IIII__!fIllJ;l;"'.I_~~_~~!IfJ!I~ImItftlli~IIllIJImI~I~I!BIl.""",~~~~!p~~>>~~~!ii'if,1ri'lir"'T'm)~'-\F'w;1l';;1~:l1H~.lli~'lJl!'l'~~mlllllm.l~II!IIlI!Iill'1m1~R~~~[MJ!~
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12-10-1997
Loan No 5900311-99
o
COMMERCIAL GUARAN" "
(Continued)
,
Page 3
Guaranty.
MISCElLANEOUS PROVISIONS. The following miscellaneous provisions are a part of this Guaranty:
Amendments. ~his ~uaranty, together wil~ any Related Documents, constitutes the entire understanding and agreement of the partie::; as to the
matters set forth In thIs Guaranty. No alteration of or amendment to this Guaranty shall be eHeclive unless given in writing and signed by the party
or parties sought to be charged or bound by the alteration or amendment.
Applicable Law. This Guaranty has been delivered to Lender and accepted by Lender in the Commonwealth of Pennsylvania. If there is a
lawsuit, G~arant~r agrees upon Lender's request to submit to the jurisdiction of the courts of Cumberland County, Commonwealth of
Pennsylvama. ThiS Guaranty shall be governed by and construed In accordance with the laws of the Commonwealth of Pennsylvania.
Attorneys' Fees; Expenses. Guarantor agrees to pay upon demand all of Lender's costs and expenses, including attorneys' fees am~ Lender's
legal expenses, incurred in connection with the enforcement of this Guaranty. Lender may pay someone else to help enforce this Gua.ranty, and
Guarantor shall pay the costs and expenses of such enforcement. Costs and expenses include Lender's attorneys' fees and legal expenses
whether or not there is a lawsuit, Including attorneys' fees and legal expenses for bankruptcy proceedings (and including efforts to modify or
vacate any automatic stay or injunction), appeals, and any anticipated post-judgment collection services. Guarantor also shall pay all c:ourt costs
and such additional fees as may be directed by the court.
Nollc.s. All notices required to be given by either party to the other under this Guaranty shall be in writing, may be sent by telefacsimlle (unless
otherwise required by law), and shall be effective when actually_ delivered or when deposited with a nationally recognized: overnight ,courier or
when deposited In Ihe United States mail, first class postage prepaid, addressed to the party to whom the notice Is to be given et' the addr~s
shown above or to such other addresses as either party may designate to the other in writing. If there is more than one Guarantor, nolice to any
Guarantor will constitute notice to all Guarantors. For notice purposes, Guarantor agrees to keep Lender informed at alHlmes of Giuarantor's
current address.
Interpretation. In all cases where there is more than one Borrowe, or Guarantor, then all words used in this Guaranty in, the singular shall be
deemed to have been used in the plural where the context and con.""qtion so require; and where there is more than one Borrower ,named In this
Guaranty or when this Guaranty Is executed by more than one Guarantqr"the words "Borrower" and "Guarantor" respectiVely s~all mean all and
anyone or more of them. The words "Guarantor," "Borrower,"-and:"lende(' include the heirs, successors. assigns, and transferees' Jof-eac:h of
them. Caption headings In this Guaranty are for convenience purp'l!lIlS,ol1lyand ara nol to be used to Interpret or define)he prbvisllonsof this
Guaranty. II a court of competent jurisdiction finds any provlsl",nclf:t~!.'!!lO~ranty to be invalid or unenforceable as to any P8rsonorciOOllmstance,
such finding shall not render that provision Invelid or unenfan;eab~lIS,tbo.nyother persons or circumstances, and all pro~onsoH~~)Guaranty
In all othar respects shall remain velld and enforceable. If any, q,ne,or.,more,of,Borrower or Guarantor are corporations orpartnEirs~I~," is not
necessary for Lender to Inquire Into the powers of Borrower, or G~Ator o'IlUhe officers, directors, partners, or agents acti?g orpurpQitlngto,act
on thalr behalf, and any Indebtedness made or created In ,ellance/upon theprolesSl!d exercise of such powers shall be guaranteed under this
Guaranty. '
Wllve.., ,i:ender shall not be deemed to have waived any rightsu~~,!!f:t~Is<.>~arenty unless such waiver Is given In writing a?d, s!ll~edl?y,Lender'
, ',' Nll,!Ie[llY or omission on the part of Lender In exerclsingany~g~!i.,~,lli()p,~~;"," ,II wlllver of such right or any olher rtg~L, 'l':!"(a~' '~of
, a pr]lvlsion of this Guaranty shall not prejudice or constitute awalileiQl, l:G"llei's ,rtght otherwise to demand strlcl compltance.iY'ttlt'!, cil!or
anyiall,. provision of this Guaranty. No prior waiver by Lencj8r,:noranr'oourse of dealing between Lender and Guarantor;s ", " ",'" a
waiver of,.aAyef tender'stights or of any of Guarantor's obligations as" to any, future transactions. Whenever the consent PI Lend,1I!' ",SqUIred
,under,lilis Guaranty, the granting of such consent by Lender ,In anylnsta~"shaU not constitute continuing consent 10 sUbsequent Instances
where'such consent is required and in all cases such consent may begrante'~or withhald In the sole discretion of Lender. '
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CONFESSION OF "juDGMENT. GUARANTOR HEREBY IRREVOCABLY AUTHORIZES AND EMPOWERS ANY ATTORNEY OR THE
PROTHONOTARY OR CLERK OF ANY COURT IN THE COMMONWEALTHQF PENNSYlVANIA, OR ELSEWHERE, TO APPEAR AT ANYTIME FOR
GUARANTOR AFTER A DEFAULT UNDER THIS GUARANTY, AND WITHOR.WITHOUT COMPLAINT FILED, AS OF ANY lERM, CONfESS OR
ENTER JUDGMENT AGAINST GUARANTOR FOR THE ENTIRE PRINQ,IPA!.BALANCE OF THIS GUARANTY, ALl ACCRUED INTERfiST, LAlE
CHARGES; AND ANY AND ALL AMOUNTS EXPENDED OR ADVANCeD BY LENDER RELATING TO ANY COLLAlERI\L SECUF!If'lG THE
INDEBlEDNESS TOGETHER WITH INTEREST ON SUCH AMOUNTS, TOGETHER WITH COSTS OF SUIT, AND AN ATTORNEYS COMMISSION, OF
lEN PERCENT (10%) OF THE UNPAID PRINCIPAL BALANCE AND ACCfllJED INTEREST FOR COLLECTION, BUT IN ANY EVENT NOT LI,SS.THAN
FIVE HUNDRED DOLLARS ($500) ON WHICH JUDGMENT OR JUDGt;1ENTS ONE OR ,MORE EXECUTIONS MAY ISSUE IMMEDIAlELY; ANQFOR
SO DOING, THIS GUARANTY OR A COPY OF THIS GUARANiTY. VEaiFIEP,By;AFFIDAVITSHALL BE SUFFICIENT WARRANT. THE 1\I:fI'ljQp'1l'V
GRANTED IN, THIS GUARANTY TO CONFESS JODGMENTAGAINST'GUIiRAN'rOR"SHALL NOT BE EXHAUSTED BY ANY EXERCISE 'OF THAT
AutHORITY, BUT SHALL CONTINUE FROMTIMETO TIME AND AT ALL TIMES UNTIL PAYMENT IN FULL OF ALL AMOUNTSDIJE UNDER THIS
GUARANTY. \iUARANTOR HEREBY WAIVES ANY RIGHT GUARANTOR MAY HAVE TO NOTICE OR TO A HEARING IN CONNECTION WITH ANY
SUCH CONfES~N OF~DGMENT, EXCEPT ANY NOTICE AND/OR HEARING REQUIRED UND,ER APPLICABLE LAW 'WITH RESPECT TO
EXE, CUTlbN,'b~ THEJUD ENT, AND STAlES THAT EITHER A REPRESENTATIVE OF LENDER SPECIFICALLY CALLED THIS CONFESSION OF
JUDGMENT PROVISION TO YARANTOR'S ATTENTION OR GUARANTOR HAS BEEN REPRESENTED BY INDEPENOENT LEGAL COUNSEL
,,1' . 'ot
EACHJJNDERSIGNED G1,iARANT0A ACKNOWLEDGES HAVING ,READ ALL THE PROVISIONS OF THIS GUARANTY AND AGREES TO liTS
TER1II$,. IN ADDITION, EACH GU~ANTORUNDERSTANDSTHA:r 1'HIS, GUAaANTV IS EFFECTIVE UPON GUARANTOR:S EXECUTION AND
D8..IVEBY,OFTHISGUARANTY TO LENOER AND ,THAT THE GUARANTY WILL CONTINUE UNTIL TERMINATED IN THE MANNER SJ:T FORTH
IN THE SECTION TITLED "DURATION OF GUARANTY." NO FORMAL ACCEPTANCE BY LENDER IS NECESSARY TO MAKE THIS GUARANTY
EFFECTIVE. THIS GUARANTY IS DATED DECEMBER 10, 1997.
'-,
THIS GUARANTY fAS BEEN SIGNED AND SEALED BY THE UNDERSIGNED,
GxUARANTOR: '~'>;J /~ ,~
71~ (SEAL)
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12-10-1997
Loan No 5900311-99
COMMERCIAL GUARANTY
(Continued)
Page 4
INDIVIDUAL ACKNOWLEDGMENT
STATE OF \'>lZAil\)~'f<'-Ll!:Yu,^
COUNTY OF c.. V MP., ~
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On this, the 10 u... day of f)G1~UL. .19..12, befere me 6.........~~ .n~'\\\-e~" ,the
undersigned NclaJy Public, porsonally appeared John K. Rich Il!ld Linde M. Rich, knewn 10 me (er salls ,orily PI'llVlln) 10 be I e person whose
namos are subscribed to the within Instrument, and acknowladgod thatthoy executed the same for the purposes theroln contained.
In wllne. mctal ...1.
Notarial Seal
Sharon K. Milier, Notary Publlo
South Middleton Twp" Cumbenand County
My Commission Expires Aug. 20, 199~
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Notary Public in and fer Ihe Slate of
lASER PRO, Reg. U.S. Pal. & T.M. Off., Ver. 3.24 (C) 1997 CFI PrOServlces,lnc. AUrlghtareserved.IPA-E20 STREET.LN C3.0VL]
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COMMERCIAL GUARANf'r
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Borrower: Streetgard, Inc. (TIN: 25-1628665)
405 Helser Lane
Carlisle, PA 17013
Lender: PENNSYLVANIA STATE BANK
Camp Hili
2148 Market Street, P.O. Box 487
Camp Hili, PA 17001-0487
Guarantor: John K. Rich
405 Helser Lane
Carlisle, PA 17013
AMOUNT OF GUARANTY. This Isa guaranty 01 payment 01 100.000% 01 the Note, Including without limitation the principal Note amount 01
Ninety Five Thousand Two Hundred Sixty Four & 22/100 Dollars ($95,264.22).
GUARANTY. For good and, valuable consideration, John K. Rich ("Guarantor") absolutety and uncondlllonalty guarantees and promises to pay
to PENNSYLVANIA STATE BANK ("Lender") or Its order, on demand, In legal tender 01 the United States 01 America, 100.o0D% 01 the
Indebtedness (as thallerm Is dellned below) 01 Streetgard, Inc. ("Borrower") to Lender on the terms and conditions set lorth In this Guaranty.
Guarantor agrees that Lender, In Its sole discretion, may determine which portion 01 Borrower's Indebtedness to Lender Is c'Dvered by
Guarantor's percentage guaranty.
DEFINITIONS. The lollowing words shall have the following meanings when used in this GU'l"'nty:
<
Borrower. ,The word "Borrowe" means Slreetgard, Inc..
Guarmtor. The word,"Guaranto" means John K. Rich.
Guaranty. The ,W,ord,"Gu,aranly" means this Guaranty made by Guarantor lor the benefit 01 Lender dated June 10, 1999.
, Indebtedn~.<Thll'wOid""Indebtedness" means the Note, Including (a) all principal, (b)a1llnterest, (c) all late charges, (d) all loan lees and
loan chergesi'and,'(e)'a1I;collecUon cosls and expenses relallng to the Note or to any collateral lor the Note. Collection cosls anal expenses
Include withoullll1)it/lUon.lII1 01 Lenelet's aUorneys'1ees and Lende~s legal expenses, whether or not suit Is' Instituted, and aUorneys'!ees and IegaJ
expenses lor banl!iUplcYipl'(lCeedlngs Oncludlngellorls to modily or vacate any automatlc"stay,or InJunellon), appeals, and any anticipated
post.,judgmenl'cplll\C;llo,n,S9l)!I(:8S.,;,,, """ , , c' :",',' ,,', "''''.":'''''",' Co, ' "
Lender. The word 'l..ende"means PENNSYLVANIA STATE BANK, lis successors and mgns.
;,.Nole. The ~Ofit~\lW:!n~W<ihe promissory note ,or credit agreement '!Btad June 10,l~;:I~~"'e Orlgl~princlp.. amounl 01 $95.2:64.22lrom
Borrower 10 Leni:ti!i;' together with all renewals of, extensions 01, modifications 01, reflnanclngs 01, consolidations 01, and substitutions for the
, promissory notlf<<::agreemenl
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Relaled Doc,u'in~i!\ll~,:,The, words "Related Documenls" mean and include, without, limitation all pro!11iSsory noles, credit agreemenls, loan
agreemenls, environmental agreemenls, guaranties, security agreemenls, mortgages,deedsol)rust, and,ail.other Instruments, agreemenls and
documenls,~~l\rJiqw,~,~existing,~uled In conneclion with the Indebted,~~;~,,, 'r' ;:';;$" ,',,", "',, '
MAXIMUM LIABILITY;' The'mllXlmum Dablllty 01 Guarantor under this Guaranty shall nONlXcftd al any orie lime 100.000% ollhe amllunl 01 the
Indebtedness descrtbed above,plus all costs and expenses 01 (a) enlorcement 01 this Guaranty and (bFCOIlectlon and sate 01 811)' COllateral
securlnglhlsGuaranty~,,: 'c " "',, ' ',' '.',,'.
The above limita~on on'I!alilUty~noi a restrlclion on Ihe amount 01 the Indebtedness 01 BOn;Owerto Lender either In, the aggregate or at anyone time,
If Lender prasenUy holds ~n~ ~r ,nipre guaranties, or herealler r8ceives additional guaranties Irom, Guarantor,l~ertg~js 01 Lender under all guaranties
shaU be cumulative. ThlsG~8?!,nty shall nol (unless speclficaUy provided below 10 lh~ contrary) affecl or Invalidale any such other guaranties. The
llabllily of Guaranto,r will b~t~,~ggrege,ta liability of Guarantor under the terms 01 this Guaranty and any such other untermlnated guaranties.
NATURE OF GUARANTY. Guarantor Intends to guarantee at all limes the periormance and prompt payment when due, whether at maturity or eariler
by reason of acceleralion or oth~ise, of ,all Indebtedness within the limits set forih In the pr9C<1dlng section of Ihis Guaranty.
DURATION OF GUARANTY. This Guaranty will take effect when received by Lender without the necessity, of any acceptance by Lender, or any notice
to Guarantor or to Borrower, and wlU continue in full force until all Indebtedness shall have been fully and finally paid and satisfied and all other
obligations 01 Guarantor under this Guaranty shall have been performed in full. Release of any other guarantor or termination of any other ,guaranty of
the Indebtedness shall not allect Ihe lIablUty 01 Guarantor under this Guaranty. A revocation received by Lender Irom anyone or more Guar"nlors shall
not affect the liability of any remaining Guarantors under this Guaranty.
GUARANTOR'S AUTHORIZATION TO LENDER. Guarantor authorizes Lender, without nollce or demand and wlthoul lessening Giuarantor's
liability under this Guaranty, Irom lime 10 lime: (a) to make one or more additional secured or unsecured loans 10 Borrowe", to lease
equipment or olher goods to Borrower, or otherwise to extend addlllonal credit 10 Borrower; (b) 10 alter, compromise, renew, extend,
accelerate, or olherwlse change one or more limes the lime lor payment or other lerms ollhe Indebtedness or any part 01 the Indllbtedness,
Including Increases and decreases 01 the rale ollnlerest on the Indebtedness; extensions may be repealed and may be lor long'" than the
original loan lerm; (c) to lake and hold security lor Ihe payment 01 this Guaranty or the Indebtedness, and exchange, enlorce, waive,
subordinate, lall or decide not 10 perlecl, and release any such security, with or without the subslltullon 01 new collateral; (d) 10 release,
substitute, agree not to sue, or deal with anyone or more of Borrower's sureties, endorsers, or other guarantors on any terms or In any
manner Lender may choose; (e) to determine how, when and whal application 01 paymenls and credits shall be made on the Indllbtedness;
(I) to apply such security and direcl the order or manner 01 sale thereol, Including without IImltallon, any nonjudicial sale permllled by the
terms 01 the conlrolllng security agreement or deed 01 trust, as Lender In Its dlscrellon may determine; (g) to sell, transler, assign, or grant
partlclpallons In all or any part ollhe Indebtedness; and (h) to assign or transler Ihls Guaranty in whole or In part.
GUARANTOR'S REPRESENTATIONS AND WARRANTIES. Guarantor represents and warrants to Lender that (a) no representations or agreements
of any kind have been made to Guarantor which would limit or qualify in any way the terms of this Guaranty; (b) this Guaranty is E~xB?~ted at
Borrower's request and not at the request of Lender; (c) Guarantor has full power, right and authority to enter into this Guaranty; (d) the proVl~lon~ of
this Guaranty do not conflict with or result in a default under any agreement or other instrument binding upon Guarantor and do not result In a VIolation
of any law, regulation, court decree or order applicable to Guarantor; (e) Guarantor has not and will not, without the prior written consen'! of Lender,
sell, lease, assign, encumber, hypothecato, transfer, or otherwise dispose of all or substantially all of Guarantor's assets, or any interest th~rel~; (f) upon
Lender's request, Guarantor will provide to Lender financial and credit information in form acceptable to Lender, and all such fina~clal mformatlon
which currently has been, and all future financial Information which will be provided to Lender is and will be true and correct in all matenal rospects and
06-10-1999
Loan No 5006168-01
COMMERCIAL GUARANTY
(Continued)
Page 2
fairly present the financial condition of Guarantor as of the dales the financial information is provided; (g) no material adverse change has occurred in
Guarantor's financial condition since the dale at the most recenl financial statements provided to Lender and no event has occurred which may
materially adversely affect Guarantor's financial condition; (h) no litigation, claim, investigation, administrative proceeding or similar action (including
Ihose for unpaid taxes) against Guarantor is pending or threatened; (i) Lender has made no representation 10 Guarantor as 10 the creditworthiness of
Borrower; and (j) Guarantor has established adequate means of obtaining from Borrower on a continuing basis information regarding Borrower's
financial condition. Guarantor agrees to keep adequately informed from such means of any facts, events, or circumstances which might in any way
affect Guarantor's risks under this Guaranty, and Guarantor further agrees that Lender shall have no obligation to disclose to Guarantor any information
Dr documents acquired by Lender in the course of its relationship with Borrower.
GUARANTOR'S WAIVERS. Except as prohibited by applicable law, Guarantor waives any right to require Lender (a) to continue lending money or to
extend other credit to Borrower; (b) to make any presentment, protest, demand, or notice of any kind, including notice of any nonpayment of the
Indebtedness or of any nonpayment related to any collateral, or notice of any action or nonaction on the part of Borrower, Lender, any surety, endorser,
or other guarantor in connection with the Indebtedness or in connection with the creation of new or additional loans or obligations; (c) to resort for
payment or to proceed directly or at once against any person, including Borrower or any other guarantor; (d) to proceed direcUy against or exhaust any
collateral held by Lender from Borrower, any other guarantor, or any other person; (e) to give notice of the terms, time, and place of any publiC or
private sale of personal property security held by Lender from Borrower or to comply with any other applicable provisions of the Uniform Commercial
Code; (f) to pursue any other remedy within Lender's power; or (g) to commit any act or omission of any kind, or at any time, with respect to any
matler whatsoever.
If now or hereafter (a) Borrower shall be or become insolvent, and (b) the Indebtedness shall not at all times until paid be fully secured by collateral
pledged by Borrower, Guarantor hereby forever waives and relinquishes in favor of Lender and Borrower, and their respective successors, any claim or
right to payment Guarantor may now have or hereafter have or acquire against Borrower, by subrogation or otherwise, so that at no time shall
Guarantor be or become a "creditor" of Borrower within the meaning of 11 U.S.C. section 547(b), or any successor provision of the Federal bankruptcy
laws.
Guarantor also waives any and all rights or defenses arising by reason of (a) any "one action" or "antkieficiency" law or any other law which may
prevent Lender from bringing any action, including a claim for deficiency, against Guarantor, before or after Lender's commencement or completion of
any foreclosure action, either judicially or by exercise of a power of sale; (b) any election of remedies by Lender which destroys or otherwise adver$eiy
affects Guarantor's subrogation rights or Guarantor's rights to proceed against Borrower tor reimbursement. including without limitation, any los$ of
rights Guarantor may suffer by reason of any law limiting, qualifying, or discharging the Indebtedness; (c) any disability or other defense Of Borrowe(, of
any other guarantor, or of any other person, or by reason of the cessation of Borrower's liability from any cause whatsoever, other than payment in full
in legeltender, of the Inciebtedness; (d) any right to claim discharge Of the Indebtedness on the basis of unjustified impairment of any collateral for the
Indebtedness; (e) any slaMe oIlimilations, if al any time any aclion or sui! brought by Lender against Guarantor Is commenced there is outstanding
Indebtedness of Borro",er tol,enderwhich Isnot barred by any applicable statute of Iimilations; or (f) any defanS8S given to guarantors at law or in
equity other than aclu81 payment and performance of the I,ndebtedness. If payment is made by Borrower, whether voluntarily or otherwise, or by any
third party, on the Indebtedness and thereafter Lender is forced to remit the amount of that payment to Borrower's trustee in bankruptcy or to any
similar person under 'any federal or state bankruptcy law or law for the relief of debtors, Ihe Indebtedness shall be considered unpaid for the purpose of
enforcement of this Guaranty.
Guarantor further waives and agrees not to assert or clarm at any time any deductions to the amount guaranteed under this Guaranty for any claim of
seloff, counterclaim, counter demand, recoupment or similar righ~ whether SUCh claim, demand or right may be asserted by lhe Borrower, the
Guarantor, or both.
GUARANTOR'S UNDERSTANDING WITH RESPECT TO WAIVERS. Guaranlor warrants and agrees that each of the waivers set forth above is made
wi!h Guarantor's full knowledge of its significance and consequances and that, under the circumstances, the waivers are reasonable and not contrar)' to
public policy 01' law. II any such waiver Is determlnad to ba contrary to any applicabla law or public policy, such waiver shall be effective only to the
extent permitted by law or public policy.
LENDER'S RIGHT OF SETOFF. In addition to all liens upon and rights of setoll against the moneys, securities or other property of Guarantor given to
Lender by law, Lendar shall have, with respect to Guarantor's obligalions 10 Lender under lhis Guaranty and to lhe axlenl permitted by law, a
contractual security interest In and a right of setoff against, and Guarantor hereby assigns, conveys, delivers, pledges, and transfers to Lender aU Of
Guarantor's right, title and Interest in and to, all deposits. moneys, securities and other property of Guarantor now or hereafter in the possession of or
on deposit with Lender, whether held in a general or special account or deposit, whether held joinUy with someone else, or whether held for
safekeeping or otherwise, excluding however all 1M, Keogh, and trust accounts. Every such security interest and right of setoff may be exercised
withDut demand upon or notice to Guarantor. No security interest or right of setoff shall be deemed to have been waived by any act or conduct on the
part of Lender or by any neglect to exercise such right of setoff or to enforce such security interest or by any delay in so doing. Every right of setoff and
security interesi shall continue in full force and effect until such right of setoff or security interest is specifically waived or released by an instrument in
writing executed by Lender.
SUBORDINATION OF BORROWER'S DEBTS TO GUARANTOR. Guarantor agrees that the Indebtedness of Borrower to Lender, whelher now
existing or hereafter created, shall be prior to any claim that Guarantor may now have or hereafter acquire against Borrower, whether or not Borrower
becomes insolvent. Guarantor hereby expressly subordinates any claim Guarantor may have against Borrower, upon any account whatsoever, to any
claim that Lender may now or hereafter have against Borrower. In the event of insolvency and consequent liquIdation of the assets of Borrower,
through bankruptcy, by an assignment for the benefit of creditors, by voluntary liquidation, or otherwise, the assets of Borrower applicable to the
payment of the claims of both Lender and Guarantor shall be paid to Lender and shall be first applied by Lender to the Indebtedness of Borrower tD
Lender. Guarantor does hereby assign to Lender all claims which it may have or acquire against Borrower or against any assignee or trustee in
bankruptcy of Borrower; provided however, that such assignment shall be effective only for the purpose of assuring to Lender full payment in legal
tender of the Indebtedness. If Lender so requests, any notes or credit agreements now or hereafter evidencing any debts or obligations of Borrower tD
Guarantor shall be marked with a legend that the same are subject 10 this Guaranty and shall be delivered to Lender, Guarantor agrees, and Lender
hereby is authorized, in the name of Guarantor, from time to time to execute and file financing statements and continuation statements and 10 execute
such other documents and to take such other actions as Lender deems necessary or appropriate to perfect, preserve and enforce its rights under this
Guaranty _
MISCELLANEOUS PROVISIONS. The following miscellaneous provisions are a part of this Guaranty:
Amendments. This Guaranty, together with any Related Documents, constitutes Ihe entire understanding and agreement of the parties as to the
matters set forth in this Guaranty. No alteration of or amendment to this Guaranty shall be effective unless given in writing and signed by the party
or parties sought to be charged or bound by the alteration or amendment.
Applicable Law. This Guaranty has been delivered to Lender and accepted by Lender In the Commonwealth of Pennsylvania, If there is a
lawsuit, Guarantor agrees upon Lender's request to submit to the jurisdiction of the courts of Cumberland County, Commonwealth of
Pennsylvania. This Guaranty shall be r ~ned by and construed in accordance with the laws ' ~ Commonwealth of Pennsylvania.
Attorneys' Fees; Expense9. GUG~I agrees to pay upon demand all of Lender's coOo tApenses, 'Including attorneys' fees and Lender's
,_, ~.~~" ~~'I"I_rjgl.~!liIIQI!~II~~Ifl!i~~~~'-.r..'.,_ "',,_' ,~~""f!l!"'"".,""r:~lllllllMI!l~~W~"''"'Fj!''~~Wr''I~-'i'r,''Wl~tt!llrilil!lll\li!f.ll1!Iffi'!I_~"A,l~ ,r,"'" ..'
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COMMERCIAL GUARANTQ ·
(Continued)
Page 3
06-10-1999
Loan No 5006168-01
legal expenses. Incurred in connection with the enforcement of this Guaranty. Lender may pay someone else to help enforce this Guaranty and
Guarantor shall pay the costs and expenses of such enforcement. Costs and expenses include Lender's aUorneys' fees and legal exp~nses
whether or not the~e is a la~~it. i'!Cluding attorneys' fees a~~ legal expe~ses for bankru~tcy proceedings (and including efforts to modify or
vacate any automatic slay or inJunction), appeals, and any anticipated post-Judgment collection services. Guarantor also shall pay all C10urt costs
and such additional fees as may be directed by the court.
Notices. All notices required to be given by either party to the other under this Guaranty shall be in writing, may be sent by telefacsimile (unless
otherwise required by law), and shall be effective when actually delivered or when deposited with a nationally recognized overnight c:ourier or
when deposited in the United States mail, first class postage prepaid, addressed to the party to whom the notice is to be given at thl~ addr~ss
shown above or to such other addresses as either party may designate to the other in writing. If there is more than one Guarantor, notice to any
Guarantor will constitute notice to all Guarantors. For notice purposes, Guarantor agrees to keep Lender informed at all times of Guarantor's
current address.
Interpretation. In all cases where there is more than one Borrower or Guarantor, then all words used in this Guaranty in the singular shall be
deemed to have been used in the plural where the context and construction so require; and where there is more than one Borrower named in this
Guaranty or when this Guaranty is executed by more than one Guarantor, the words "Borrower" and "Guarantor" respectively shall malln all and
anyone or more of them. The words "Guarantor," "Borrower," and "lender" include the heirs, successors, assigns, and transferees (.)f each of
them. Caption headings in this Guaranty are for convenience purposes only and are not to be used to interpret or define the provislclns of this
Guaranty. If a court of competent jurisdiction finds any provision of this Guaranty to be invalid or unenforceable_as to any person or circumstance,
such finding shall not render that provision invalid or unenforceable as to any other persons or circumstances, and all provisions of this Guaranty
in all other respects shall remain valid and enforceable. If anyone or more of Borrower or Guarantor are corporations or partnerships, it is not
necessary for Lender to inquire into the powers of Borrower or Guarantor or of the officers, directors, partners, or agents acting or purpor'ting to act
on their behalf, and any Indebtedness made or created in reliance upon the professed exercise of such powers shall be guaranteed IUnder this
Guaranty,
Waiver. Lender shall not be deemed to have waived any rights under this Guaranty unless such waiver Is given in writing and signed by Lender.
No delay or omission on the part 01 Lender In exercising any right shall operate as a waiver 01 such right or any other right. A welver by Lender of
e provision of this Guaranty shall not prejUdice or constitute e waiver of Lende~s right otherwise to demand strict compliance with ,that provision or
any other provision of this Guaranty, No prtor waiver by Lender, nor any course 01 dealing between Lender and Guarantor, shell c~nstilute a
waiver of eny of Lende~s rights or of any of Guaranto~s obligations as to any future transactions, Whenever the consent 01 Lander Ii; required
under this Guaranty, the granting 01 such consent by Lender In any Instance shall not constitute continuing consent to subsequent Instances
where such consent Is required and In ell cases such consent may be granted or withheld In the sole discretion 01 Lender.
DEFAlLT INTEREST RATE. In the event 01 default lor which the Lender does not accelerate the Loan,lncludlng the Iellure 01 Borrow~r,to provide the
financial statements as required hereunder or under the Loan Agreement, the eppllcablelnterest rate on the Loan, for a perlod beglnnl~ll'thr9!l(3)days
after wrIllen notice of such default end ending upon the curtng 01 said noticed delault, shell Increase one quarter of one percent (;25%),lor th~,~rstthlrty
(30) days 01 said default and Increase an additional one quarter of one percent (.25%) during each thirty (30) day perlod thereallet':~,urt'1ll:lIIhlchthe
nollced default continues. Such default Interest rale shell epply to the outstanding prtnclpal balance of the Loan. Upon the curtng<ol, me. noticed
default, the Interest rate on the Loan shell rever! to the In/tiaHyagreed-upon Interest rete effective on the date on which the default Is cui'ed.
FINANCIAL STATEMENTS. Furnish Lender with, as soon as avellable, but In no event later than cne hundred twenty (120) days efter the e~dofeach
fiscal year, Guaranto~s personal financial statement and federal Income tax return. All financial reports required to be provided under this i\greement
shall be prepared In accordence with generally eccepted accounting principles, applied on consistent basis, and certified by Guarantor as being true
and correct,
CONFESSION OF JUDGMENT. GUARANTOR HEREBY IRREVOCABLY AUTHORIZES AND EMPOWERS Am ATTORNEY OR THE
PROTHONOTARY OR CLERK OF Am COURT IN THE COMMONWEALTH OF PENNSYLVANIA, OR ELSEWHERE, TO APPEAR AT Am'nME FOR
GUARANTOR AFTER A DEFAULT UNDER THIS GUARANTY, AND WITH OR WITHOUT COMPLAINT FILED, AS OF Am TERM, CONFESS OR
ENTER JUDGMENT AGAINST GUARANTOR FOR THE ENTIRE PRINCIPAL BAlANCE OF THIS GUARANTY, ALL ACCRUED INTEREST, LATE
CHARGES, AND Am AND ALL AMOUNTS EXPENDED OR ADVANCED BY LENDER RELATING TO />JoN COLLATERAL SECURING THE
INDEBTEDNESS TOGETHER WITH INTEREST ON SUCH AMOUNTS, TOGETHER WITH COSTS OF SUIT, AND AN ATTORNEY'S COMMISSION OF
TEN PERCENT (10%) OF THE UNPAID PRINCIPAL BAlANCE AND ACCRUED INTEREST FOR COLLECTION, BUT IN Am EVENT NOT LESS THAN
FIVE HUNDRED DOLLARS ($500) ON WHICH JUDGMENT OR JUDGMENTS ONE OR MORE EXECUTIONS MAY ISSUE IMMEDIATELY; AND FOR
SO DOING, THIS GUARANTY OR A COPY OF THIS GUARANTY VERIFIED BY AFFIDAVIT SHALL BE SUFFICIENT WARRANT. THE AIJTHORIlY
GRANTED IN THIS GUARANTY TO CONFESS JUDGMENT AGAINST GUARANTOR SHALL NOT BE EXHAUSTED BY Am EXERCISE OF THAT
AUTHORITY, BUT SHALL CONTINUE FROM TIME TO TIME AND AT ALL TIMES UNTIL PAYMENT IN FULL OF ALL AMOUNTS DUE U~IDER THIS
GUARANTY. GUARANTOR HEREBY WAIVES Am RIGHT GUARANTOR MAY HAVE TO NOTICE OR TO A HEARING IN CONNECTION WITH Am
SUCH CONFESSION OF JUDGMENT, EXCEPT Am NOTICE AND/OR HEARING REQUIRED UNDER APPLICABLE LAW WITHRElSPECT TO
EXECUTION OF THE JUDGMENT, AND STATES THAT EITHER A REPRESENTATIVE OF LENDER SPECIFICALLY CALLED THIS CONFESSION OF
JUDGMENT PROVISION TO GUARANTOR'S ATTENTION OR GUARANTOR HAS BEEN REPRESENTED BY INDEPENDENT LEGAL COUNSEL.
EACH UNDERSIGNED GUARANTOR ACKNOWLEDGES HAVING READ ALL THE PROVISIONS OF THIS GUARANTY AND AGREES TO ITS
TERMS. IN ADDITION, EACH GUARANTOR UNDERSTANDS THAT THIS, GUARANTY IS EFFECTIVE UPON GUARANTOR'S EXECUTION AND
DB-IVERY OF THIS GUARANTY TO LENDER AND THAT THE GUI.\RANTY WILL CONTINUE UNTIL TERMINATED IN THE MANNER S!ET FORTH
IN THE SECTION TITLED "DURATION OF GUARANTY." NO FORMAL ACCEPTANCE BY LENDER IS NECESSARY TO MAKE THIS GiUARANTY
EFFECTIVE. THIS GUARANTY IS DATED JUNE la, 1999.
THIS GUARANTY AS BEEN SIGNED AND SEALED BY THE UNDERSIGNED,
06-10-1999
Loan No 5006168-01
COMMERCIAL GUARANTY
(Continued)
Page 4
INDIVIDUAL ACKNOWLEDGMENT
STATE OF '\M,nl',\I\\\C\n"IO-
COUNTYOF ~~\Wl~("\tJ.rd
\
)SS
)
Notarial Seal
Tammy S. Prosser, Notary Public
SalII1 /lIWetoo T~" Ctlmberland County
My Conlmlsoion EXpIres 001. 25, lllV1)
On this, the l()-\'^ day Of~~\V\~, 1~, before me
undersigned Notary Public, personally appeared John K. RIch, known to me (or satisfact lily proven) to be t
the within instrument, and acknowledged that he or she executed the same for the purposes therein containe
In wl1ness whereof, I hereunto set my hand and offlclal seal.
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LASER PRO, Reg. U.S. Pat. & T.M. Off., Vef. 3.28C (c) 1 999 OFI ProServlces, Inc. All rlghta reserved. (PA-E20 F3.26b STREET1.t.N C2.0VL)
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Plaintiff
v
: IN THE COURT OF COMMON PLEAS OF
: CUMBERLAND COUNTY, PENNSYLVANIA
: NO. 2000-1045
STREETGUARD, INC. and
JOHN K. RICH,
: CIVIL ACTION - LAW
Defendants
PRAECIPE
TO THE PROTHONOTARY:
Please enter the appearance of Hubert X. Gilroy, Esquire, of Broujos 8r Gilroy, P. C. on
behalf of the Defendants in the above captioned case. On behalf of the Defendants, I
hereby accept service of the Complaint which has been filed in this case.
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ArthurA.Kusk,Esqurre
Suprerne Court Number 07207
4201 Crums Mill Road
Harrisburg, PA 17112
(717) 540-5610
Attorney For Plaintiff
PENNSYLVANIA STATE BANK
: IN THE COURT OF COMMON PLEAS
:CUMBERLANICOUNTY. PENNSYLVANIA
:
v.
CML ACTION - LAW
STREETGARD, INC. and
JOHN K. RICH
NO. 2000-1045 Civil Term
IMPORTANT NOTICE
TO: Streetgard, Inc. and John K. Rich
DATE OF NOTICE:March 31, 2000
YOU ARE IN DEFAULT BECAUSE YOU HAVE FAILED TO ENTER A
WRITTEN APPEARANCE PERSONALLY OR BY ATTORNEY AND FILE IN WRITING
WITH THE COURT YOUR DEFENSES OR OBJECTIONS TO THE CLAIMS SET FORTH
AGAINST YOU. UNLESS YOU ACT WITHIN TEN DAYS FROM THE DATE OF THIS
NOTICE, A JUDGMENT MAY BE ENTERED AGAINST YOU WITHOUT A HEARING AND
YOU MAY WSE YOUR PROPER1Y OR OTHER IMPORTANT RIGHTS. YOU SHOULD
TAKE THIS NOTICE TO A LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER OR
CANNOT AFFORD ONE, GO TO OR TELEPHONE THE FOLWWING OFFICE TO FIND
OUT WHERE YOU CAN GET LEGAL HELP.
RESPECTFULLY SU D:
ARTHUR USIC, E
4201 Crurns Mill Road
Harrisburg, PA 17112
(717) 540-5610
Suprerne Court Nurnber 07207
Attorney for Plaintiff
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Arthur A. Kusic, Esquire
Supreme Court Number 07207
4201 Crums Mill Road
Harrisburg, PA 17112
(717) 540-561 0
Attorney For Plaintiff
PENNSYLVANIA STATE BANK
Plaintiff
: IN THE COURT OF COMMON PLEAS
: COUNTY, PENNSYLVANIA
.CUMBERLAND
v.
NO. 2000-1045 'Civil Term
STREETGARD, INC. and
JOHN K. RICH
Defendant
NOTICIA IMPORT ANTE
A:
STREETGARD, INC. and JOHN K. RICH
FECHE DE NOTICIA: March 31, 2000
USTED NO HA COMPLlDO CON EL AVISO ANTERIOR PROQUE
HA FAL TADO EN TOMAR MEDIDAS REQUERIDAS RESPECTO A ESTE
CASO. SI USTED NO ACTUA DENTRO DE DIEZ (10) DIAS DESDE LA
FECHE DE ESTA NOTICIA, ES POSIBLE QUE UN FALLO SERIA
REGISTRADO CONTRA USTED SIN UNA AUDIENCE Y USTED PODRIA
PERDER SU PROPIEDAD 0 OSTROS DERECHOS IMPORATANTES.
USTED DEBE LLEVAR ESTA NOTICIAA SU ABOGADO EN SEQUIDA. SI
ISTED NO TIENNE ABOGADO 0 NO TOENE CAN QUE PAGAR LOS
SERVIDIOS DE UN ABOGADO, VAYA 0 LLAME A LA OFICIAN ESCRITA
ABAJO PARA AVERIGUARA DONDE USTED PUEDE OBTENER LA AYUDA
LEGAL:
ITTED:
ARTHU
QUIRE
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Arthur A. Kusic, Esquire
Supreme Court No. 07207
4201 Crums Mill Road
Harrisburg PA 17112
717-540-5610
Attorney for Plaintiff
P8NNSYLVANIA STATE BANK
* IN THE COURT OF COMMON PLEAS
* CUMBERLAND COUNTY, PENNSYLVANIA
Plaintiff
*
* CIVIL ACTION - LAW
v.
*
STREETGARD, INC. and
JOHN K. RICH
* NO. 2000-1 045 Civil Term
*
*
Defendant
*
CERTIFICATE OF SERVICE
I, Arthur A. Kusic, Esquire, do hereby certify that on this 31 lOt
day of M"rrh
, 200,8 I placed in the United States Mail true
and correct copies of the Important Ten Dav Notice
~jdPes~~aSt5 th~aftllJWI-b1tge affixed and
Hubert X. Gilroy, Esquire
BROUJOS & GILROY
41 North HAnover Street
CArlisle, PA 17013
Attorney for Defendants
Streetgard, Inc.
405 Heiser Lane
CArlisle, PA 17013
RESPECTFULLY SUBMITTED:
~
John K. Rich
17119 CArriage DalesCourt
Spring, Texas 77429
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IN THE COURT OF COMMON PLEAS
~UMBERLAND COUNTY, PENNSYLVAN A
CIVIL ACTION LAW
NO. 2000-1045 Civil Term
PENNSYLVANIA STATE ~~NK
V.
STREETGARD, INC. and
JOjljN K. RICH
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IMPORTANT TEN DAY NOTICE
CERTIFICATE OF SERVICE
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ARTHUR A, KUSIC
ATIORNEY AT LAW
4201 CRUMS MILL ROAO
P,O. Box 67015
HARRISBURG, PENNSYLVANIA 17106-7015
(717) 540-5610
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PENNSYLVANLASTATEBANK
:IN THE COURT OF COMMON PLEAS OF
:CUMBERLAND COUNTY, PENNSYL VNIA
v
:CIVIL ACTION LAW
STREETGUARD, INC. and
JOHN K RICH
:NO. 00-1045 CIVIL TERM
PRELIMINARY OBJECTIONS
Defendants, Streetguard, Inc. and John K. Rich, by their attorneys, Broujos & Gilroy, P .C., set
forth the following preliminary objections in response to the compliant filed in the above matter:
I
As to Count II, Plaintiff's Complaint fails to state a claim upon which relief can be granted.
2
As to Count II, Plaintiff's Complaint fails to sufficiently allege acts of fraud with specificity.
3
As to Count III, Plaintiff's Complaint fails to state a claim upon which relief can be granted.
4
As to Count IV, a prior action is pending against Defendant John K. Rich pursuant to said
commercial guarantee, said action filed at Cumberland County Docket # 1999 - 01475
WHEREFORE, Defendants request your Honorable Court to dismiss Plaintiff's Complaint.
Hubert X. Gilroy, Es 're
Broujos & Gilroy, .C.
4 North Hanover treet
Carlisle, P A 17013
(717) 243-4574
Attorney for Defendant
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PENNSYLVANIA STATE BANK* IN THE COURT OF COMMON PLEAS
Plaintiff *CUMBERLAND COUNTY, PENNSYLVANIA
*
v.
* CIVIL ACTION - LAW
* NO. 00-1045 Civil Term
*
STREETGARD, INC. and
JOHN K. RICH,
Defendants
*
*
*
NOTICE TO PLEAD
TO: Defendants above named
You are hereby notified to file a written response to the
enclosed, Preliminary Objections to Defendants' preliminary Objections
to Plaintiffs Complaint, within twenty (20) days from service hereof or a
Judgment rnay be entered against you.
ARTHUR A. KUSIC, ESQUIRE
4201 Crums Mill Road
Harrisburg, PA17112
(717) 540-5610
Supreme Court No. 07207
Attorney for Plaintiff
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PENNSYLVANIA STATE BANK* IN THE COURT OF COMMON PLEAS
Plaintiff * CUMBERLAND COUNTY, PENNSYLVANIA
*
v.
* CIVIL ACTION - LAW
* NO. 00-1045-Civil Term
*
STREETGARD, INC. and
JOHN K. RICH,
Defendants
*
*
PRELIMINARY OBJECTIONS TO DEFENDANTS' PRELIMINARY
OBJECTIONS TO PLAINTIFF'S COMPLAINT
AND NOW comes Plaintiff by and through its attomey, Arthur A.
Kusic, Esquire, and respectfully makes its Preliminary Objections to
Defendants' Preliminary Objections to Plaintiffs Cornplaint as follows:
1. On or about February 24, 2000, Plaintiff filed its Cornplaint with
regard to the above captioned matter.
2. On or about April 7, 2000, Defendants filed their Preliminary
Objections thereto and alleged, inter alia, in paragraphs 1 and 3 that
Plaintiffs respective Count II and Count III fail to state a claim upon
which relief can be granted. A courtesy copy of Defendants' Preliminary
Objections is attached hereto.
3. Pursuant to Pa.R.C.P. No. 1028(b), 42 Pa.C.S.A., preliminary
objections shall state specifically the grounds relied upon.
4. Defendants have failed to state with specificity the grounds
relied upon in making the aforesaid allegations thereby precluding
Plaintiff from properly amending or defending its averments.
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1. MOTION TO STRIKE
5. Plaintiff incorporates herein by reference thereto the averments
as hereinabove set froth in paragraph 1 through 4.
6. Plaintiff believes and therefore avers that Defendants have failed
to conform to rule or law in that they have failed to specifically state the
grounds relied upon in alleging that Counts II and III of Plaintiffs
Cornplaint fail to state a claim upon which relief may be granted.
7. Plaintiff believes and therefore avers that Defendants'
Preliminary Objections should be stricken for lack of specificity.
WHEREFORE, Plaintiff requests your Honorable Court to grant its
Motion and strike Defendants' Preliminary Objections.
II. MOTION FOR MORE SPECIFIC
PLEADING
(in the altemativel
8. Plaintiff incorporates herein by reference thereto the averments
as hereinabove set forth in paragraphs 1 though 7.
9. Should Defendants' Preliminary Objections not be stricken for
failure to conform to rule or law, Plaintiff believes and therefore avers
that Defendants' Preliminary Objections should be amended to comply
with Pa.R.C.P. l028(b) by specifically setting forth the grounds upon
which Defendants' objections are based.
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WHEREFORE, Plaintiff requests your Honorable Court to grant its
Motion and issue an Order requiring Defendants to amend their
Preliminary Objections within twenty days.
RESPECTFULLY SUBMITTED:
ARTHUR A. USIC, E RE
4201 Crums Mill Road
Harrisburg, PA 17112
(717) 540-5610
Supreme Court No. 07207
Attorney for Plaintiff
,
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PENNSYLVANIA STATE BANK* IN THE COURT OF COMMON PLEAS
Plaintiff *CUMBERLAND COUNTY, PENNSYLVANIA
*
v.
* CIVIL ACTION - LAW
* NO. 00-1045 Civil Term
STREETGARD, INC. and
JOHN K. RICH
Defendants
*
*
*
VERIFICATION
I, p, l\\>.N ~""110N , the \!w ~",,~\do"', of
PENNSYLVANIA STATE BANK verify that the statements contained in the
Preliminary Objections to Defendants' Prelirninary Objections are true
and correct to the best of my knowledge, information and belief and that
I am authorized to make this Verification on behalf of PENNSYLVANIA
STTE BANK. I understand that false staternents made herein are subject
to the penalties of 18 Pa.C,S.A. Section 4904, relating to unsworn
falsification to authorities,
PENNSYLVANIA STATE BANK
BY:
~-c{~ M~
(l, " l.... P"n~ N
~({)SIO~
Name:
Date:
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Courtesy Copy of Defendants' Preliminary Objections
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04/07/2000 14:39
2438227
, .
BROUJOS & GILROY, PC
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PAGE 03
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PENNSYLVANIA STATE BANK
v
:IN THE COURT OF COMMON PLEAS OF
:CUMBERLAND COUNTY, PENNSYLVNIA
:CIVIL ACTION LAW
STREETGUARD, INC. and
JOHN K RICH
:NO. 00-1045 CML TERM
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Defer1dants, Streetguard, Inc. and John K. Rich, by their attorneys, Broujos &. Gi~ ~;C., ~ j rl
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forth the following preliminary objections in response to the compliant filed in the ~ mliiter: ~
PRELIMINARY OBJECTIONS
I
As to Count II, Plaintiff's Complaint fails to state a claim upon wbich relief can be granted.
2
As to Count n, Plaintift's Complaint fails to sufficiently allege acts of fraud with specificity.
3
As to Cowt m, Plaintiff's Complaint fails to state a claim upon which relief can be granted.
4
As to Count IV, a prior action is pending against Defendant John K. Rich pursuant to said
coll1lllercial guarantee, said action filed at Cumberland County Doclcet # 1999 - 01475
WHEREFORE, Defendants request your Honorable Court to dismiss Plaintiff's Complaint.
Hubert X. Gilroy, Es ire
Broujos & Gilroy, ,C.
4 North Hanover
Carlisle, PA 1701
(717) 243-4574
Attorney for Defendant
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ArthurA.Kusk,Esqurre
Supreme Court No. 07207
4201 Crurns Mill Road
Harrisburg PA 17112
717-540-5610
Attorney for Plaintiff
PENNSYLVANIA STATE BANK
Plain tiff
* IN THE COURT OF COMMON PLEAS
: CUMBERLAND COUNTY, PENNSYLVANIA
* CIVIL ACTION - LAW
v.
*
STREETGARD, INC. and
JOHN K. RICH
* NO.00-1045 Civil Term
*
*
Defendant
*
CERTIFICATE OF SERVICE
I, Arthur A. Kusic, Esquire, do hereby certify that on this 26th
day of April
, 20~, I placed in the United States Mail true
and correct copies of the Preliminary Objections to Defendants I
Preliminary Object~ons to Plaintiff's Complaint with first
addressed to the tollowmg: postage affixed and
Hubert X. Gilroy, Esquire
BROUJOS & GILROY
41 North HAnover Street
CArlisle, PA 17ID13
class
RESPECTFULLY SUBMITTED:
ARTH
.KU
QUIRE
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IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PENNSYLVAf A
CIVIL ACTION AAW
DOCKET NO, 00-1045 Civil Terrr
PENNSYLVANIA STATE BANK
V.
STREETGARD, INC. and
JOHN K. RICH
NOTICE TO PLEAD
PRELIMINARY OBJECTIONS TO
PRELIMINARYY OBJECTIONS
CERTIFICATE OF SERVICE
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ARTHUR A. Kuslc
ATTORNEY AT LAW
4201 CRUMS MILL ROAO
P.O, BOx 67015
HARRISBURG, PENNSYLVANIA 17106-7015
(717) 540-5610
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PENNSYLVANIA STATE BANK,
Plaintiff
v
: IN THE COURT OF COMMON PLEAS OF
: CUMBERLAND COUNTY, PENNSYLVANIA
: NO. 00-1045 CIVIL TERM
STREETGARD, INC. and
JOHN K. RICH,
Defendants
: CIVIL ACTION - LAW
ANSWER OF DEFENDANTS STREETGARD, INC. AND
JOHN K. RICH TO PRELIMINARY OBJECTIONS OF PLAINTIFF'S
TO PRELIMINARY OBJECTIONS OF DEFENDANTS
Defendants, Streetgard, Inc. and John K. Rich, by their attorneys, Broujos & Gilroy, P.c.,
sets forth the following:
1
Admitted.
2
Admitted.
3
Admitted.
4
Denied. On the contrary, Defendants Preliminary Objections suggest that Plaintiff has
failed to specifically allege acts of fraud and that Plaintiffs complaint fails to state a claim
upon which relief can be granted, which is a demurrer to Plaintiff's complaint at Counts II
\, ''"'' -
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and III. Additionally, Defendants Preliminary Objections suggest that there is a pending
action against Defendant John K. Rich which is reason for dismissal of Count IV of
Plaintiff's complaint.
5
No responsive pleading is required.
6
Denied. On the contrary, Defendants' preliminary objections essentially act as a demurrer
to Plaintiff's complaint with respect to Counts II and III.
7
No responsive pleading is required.
WHEREFORE, Defendants request your Honorable Court to address Defendants
Preliminary Objections.
8
No responsive pleading is required.
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Denied. The allegations set forth in Paragraph 4 above are incorporated herein by
reference thereto.
WHEREFORE, Defendant requests your Honorable Court to address their preliminary
objections.
Respectfully submitted,
K-.
Attorney for Defendant
Broujos &: Gilroy, P.c.
4 North Hanover Street
Carlisle, PA 17013
(717) 243.4574
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PRAEOPE FOR LISTI:-IG CASE FOR ARGL':\'IE:"iT
l:\'lust be typewritten md submitted in duplic:lte 1
TO THE PROTHONOTARY,'OF CDIBERU",',jD COl.::"iTY:
Please list the within matter for :he next:
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P:e-Tri:1i Argument Ceun
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.....-
Argument COUrt
. CAPTION OF CASE
(entiIe caption must be stated in full)
PENNSYLVANIA STATE BANK
(PIaintifi)
vs.
STREETGARD, INC. and JOHN K. RICH
(Deiendant)
vs.
SogJ.Cl-104<;
Ci...ilTt:J.rm
I. State mattet to be argued (I. e., plaintiffs motion for new triaL
defendant's demurrer to .:omplaint. etc.):
Plaintiff's Preliminary Objections to Defendants' Preliminary
~bj l~e1ft~~llumelwho will argue .:ase:
(a)
(b)
for plaintiff: Arthur A. Kusic, Esquire
Address: 4201 Crums MIll Road, Harrisburg, PA 17112
iordeiendant:Hubert X. Gilroy, Esquire, Broujos & Gilroy
Address: 4 North HAnoverStreet, Carlisle, PA 17013
3. I will notify all parties in writing wi:hin two days :.'1at :!tis .:ase has been
Usted ior argument. _
4. Argument Court Date:July 26,
Call of Argument List Date:
Exhibit "A"
Dated:
Cumberland 6
Arthur A. Kusic, Esquire
Suprerne Court No. 07207
4201 Crurns Mill Road
Harrisburg PA 17112
717-540-5610
Attorney for Plaintiff
Plain tiff
* IN THE COURT OF COMMON PLEAS
* COUNTY, PENNSYLVANIA
*CUMBERLAND
* CIVIL ACTION - LAW
*
PENNSYLVANIA STATE BANK
v.
STREETGARD, INC. and
JOHN K. RICH
* NO. 00-1 045 Civil Term
*
*
Defendant *
CERTIFICATE OF SERVICE
I, Arthur A. Kusic, Esquire, do hereby certify that on this 23rd
day of
May
, 200J;) I placed in the United States Mail true
and correct copies of the Praecipe for Listing Case for Argument
Court with ~irst class postage affixed and
addressed to the following:
Hubert X. Gilroy, Esq.
BROUJOS & GILROY
4 North HAnover Street
Carlisle, PA 17013
RESPECTFULLY SUBMITTED:
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IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY,PENNSYLVAN
CIVILACTION LAW
NO. 00-1045 Civil Term
PENNSYLVANIA STATE BANK
V.
STREETGARD, INC. and
JOHN K. RICH
PRAECIPE TO LIST CASE FOR
ARGUMENT COURT
CERTIFICATE OF SERVICE
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ARTHUR A. KUSIC
ATTORNEY AT LAW
4201 CRUMS MILL ROAD
P.O. Box 67015
HARRISBURG, PENNSYLVANIA 17106,7015
(717) 540-5610
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PENNSYLVANIA STATE BANK,
Plaintiff
v.
STREETGARD, INC. and
JOHN K. RICH,
Defendants
TO THE PROTHONOTARY:
..
: IN THE COURT OF COMMON PLEAS
: CUMBERLAND COUNTY, PENNSYLVANIA
: CIVIL ACTION - LAW
: NO. 00-1045 CIVIL TERM
PRAECIPE
Please enter my appearance as connsel for Plaintiff, Pennsylvania State Bank.
RESPECTFULLY SUBMITTED,
- ,,~C ~"-- "
Robert L. Knnpp ~~
Knnpp, Kodak & Imblum, P.c.
407 N. Front Street
P.O. Box11848
Harrisburg, PA 17108
(717) 238-7151
Supreme Court ID No. 07083
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CERTIFICATE OF SERVICE
I hereby certify that on this theOL~y of June, 2000, I placed in the United States Mail,
postage prepaid the within document to the following:
HUBER X GILROY ESQUIRE
BROUJOS & GILROY PC
4 NORTH HANOVER STREET
CARLISLE P A 17013
ARTHUR A KUSIC ESQ
4201 CRUMS MILL ROAD
HARRISBURG P A 17112
(717) 238-7151
cc: WILLIAM FREEMAN CEO
PENNSYLVANIA STATE BANK
PO BOX 487
CAMP HILL PA 17001-0487
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PENNSYLVANIA STATE BANK, * IN THE COURT OF COMMON PLEAS
Plaintiff * CUMBERLAND COUNTY, PENNSYLVANIA
*
v,
* CIVIL ACTION - LAW
* NO, 00-1045 CIVIL TERM
*
*
*
STREETGARD, INC, and
JOHN K. RICH,
Defendants
PRAECIPE
TO THE PROTHONOTARY:
Please withdraw my Appearance as counsel of record for the Plaintiff above
named,
RESPECTFULLY SUBMIT
AR A SI, ESQUIRE
4201 Crums Mill Road
Harrisburg, PA 17112
(717) 540-5610
Supreme Court No, 07207
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PENNSYLVANIA STATE BANK,
Plaintiff
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PENNSYLVANIA
v.
: CIVIL ACTION - LAW
STREETGARD, INC. and
JOHN K. RICH,
Defendants
: NO. 00-1045 CIVIL TERM
PRAECIPE
TO THE PROTHONOTARY:
Please withdraw the Plaintiffs' Preliminary Objections to the Defendants' Preliminary
Objections filed in this matter on April 27, 2000.
RESPECTFULLY SUBMITTED,
Ro ert L. Knupp
Knupp, Kodak &
407 N. Front Street
P.O. Box 11848
Harrisburg, PA 17108
(717) 238-7151
Supreme Court ID No. 07083
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PENNSYLVANIA STATE BANK,
Plaintiff
: IN THE COURT OF COMMON PLEAS
: CUMBERLAND COUNTY , PENNSYLVANIA
v.
.
: CIVIL AtTION - LAW
STREETGARD, INC. and
JOHN K. RICH,
Defendants
: NO. 00-1045 CIVIL TERM
CERTIFICATE OF SERVICE
i hereby certify that on this, the I!t1:i... day of November, 2000, I placed in the United
States Mail, first-class postage prepaid at Harrisburg, Pennsylvania, a true and correlct
time-stamped copy of the Plaintiff's Amended Complaint in the above matter to:
HUBERT X. GILROY, ESQUIRE
BROJOUS & GILROY
41 NORTH HANOVER ST
CARLISLE, PA 17013
~tl~
Robert L. Knupp, Esquire
cc: DONALD BONAFEDE, PRESIDENT
PENNSYLVANIA STATE BANK
PO BOX 487
CAMP HILL PA 17001-0487
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PENNSYLVANIA STATE BANK,
Plaintiff
v
: IN THE COURT OF COMMON PLEAS OF
: CUMBERLAND COUNTY, PENNSYLVANIA
: NO. 00 - 1045 CIVIL ACTION LAW
STREETGARD, INC. and
JOHN K. RICH
Defendants
COURT ORDER
AND NOW, this
II tt
day of March, 2001, upon consideration of the attached
Petition to Withdraw as Counsel, a Rule is hereby entered on Defendants Streetgard, Inc.
and John K. Rich to show cause as to why Hubert X. Gilroy, Esquire and the firm of
Broujos 8r Gilroy, P.c. should not be allowed to withdraw as counsel of record in the
above matter. This Rule is returnable ten (1 0) days from date of service upon Defendant
Streetgard, Inc. and Defendant John K. Rich.
BY THE COURT,
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cc: Robert L. Knupp, Esquire
Attorney for Pennsylvania State Ban
Hubert X. Gilroy, Esquire
John K. Rich
Streetgard, Inc.
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PENNSYLVANIA STATE BANK,
Plaintiff
v
: IN THE COURT OF COMMON PLEAS OF
: CUMBERLAND COUNTY, PENNSYLVANIA
: NO. 00 - 1045 CIVIL ACTION LAW
STREETGARD, INC. and
JOHN K. RICH
Defendants
PETITION TO WITHDRAW AS COUNSEL
Petitioner, Hubert X. Gilroy, Esquire, and the firm of Broujos 8r Gilroy, P.c., sets forth
the follows:
1
Petitioner is counsel of record for Defendant Streetgard, Inc. and John K. Rich in the
above matter.
2
Defendants have failed to uphold their obligations with respect to the fee agreement
entered into between Petitioners and the Defendants.
3
Petitioners desire to withdraw as legal counsel for the Defendants in the above matter.
4
The status of the case is that a Complaint has been filed and an Amended Complaint has
also been filed. Plaintiffs have granted Defendants and extension to file a response to the
Amended Complaint.
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Petitioner spoke with Attorney Robert L. Knupp who is counsel for Plaintiff in the above
matter. Attorney Knupp has authorized Petitioner to represent to the Court that the
Plaintiff does not object to the Petitioner's request to withdraw as counsel and, further,
that Plaintiff is willing to grant a further extension to file an answer pending resolution of
Petitioner's request to withdraw on condition that the final order authorizing Petitioner to
withdraw also directs Defendants to file a responsive pleading to the Amended Complaint
within twenty days from the date of said Order.
WHEREFORE, Petitioners request your Honorable Court to enter a Rule upon the
Defendants to show cause as to why Petitioners should not be allowed to withdraw as
counsel of record in this case.
Respectfully submitted,
oy, Esquire
Broujos i1roy, P.c.
4 Nor Hanover Street
Car'sle, PA 17013
(717) 243.4574
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PENNSYLVANIA STATE BANK,
Plaintiff
v
: IN THE COURT OF COMMON PLEAS
: CUMBERLAND COUNTY, PENNSYLVANIA
: NO. 00 - 1045 CIVIL TERM
STREETGARD, INC. and
JOHN K. RICH,
Defendants
COURT ORDER
AND NOW, this Z. \,,~ day of M L-l ,2001, upon consideration of the
attached petition and it appearing that the Defendants have not filed anything in response
to the Rule to Show Cause issued in this case on March 11, 2001, it is hereby directed
that the firm of Broujos 8r Gilroy, P.c. and Hubert X. Gilroy, Esquire may withdraw as
legal counsel for the Defendants in the above action.
BY THE COURT,
J.
, J.
Hubert X. Gilroy, Esquire
~
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cc: Robert L. Knupp, Esquire
Attorney for Pennsylvania State Bank
John K. Rich
Streetgard, Inc.
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PENNSYLVANIA STATE BANK,
Plaintiff
: IN THE COURT OF COMMON PLEAS
: CUMBERLAND COUNTY, PENNSYLVANIA
: NO. 00 - 1045 CIVIL TERM
v
STREETGARD, INe. and
JOHN K. RICH,
Defendants
PETITION TO MAKE RULE ABSOLUTE
TO WITHDRAW AS COUNSEL
Petitioner, Broujos 8t Gilroy, P.e., sets forth the following:
1
By Order of Court dated March 11, 2001, this Court issued a Rule to Show Cause on
Streetgard, Inc. and John K. Rich directing the Defendant to show cause why the firm of
Broujos 8t Gilroy, P.e. should not be allowed to withdraw as counsel on their behalf.
2
A copy of the March 11, 2001 Order and the accompanying petition was served upon
Streetgard, Inc. and John K. Rich.
3
Over twenty days have elapsed from the date of service on John K. Rich and Streetgard,
Inc., and neither defendant has taken any action in this matter.
4
Petitioner requests the court to make the Rule absolute and allow the Petitioner to
withdraw as counsel for the Defendants.
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WHEREFORE, Petitioner requests your Honorable Court to issue an order authorizing
petitioners to withdraw as legal counsel for the Defendants in the above case.
Respectfully submitted,
o f/-CJ
Hubert X. Gilroy, Esq . e
Broujos &: Gilroy, P .
4 North Hanover treet
Carlisle, PA 17013
(717) 243-4574
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Plaintiff
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STREETGARD, INC. and
JOHN K. RICH,
Defendants
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: IN THE COURT OF COMMON PLEAS OF
: CUMBERLAND COUNTY, PENNSYLVANIA
: NO. 00-1045 CIVIL TERM
PRAECIPE
Pursuant to the Order of Court entered in the above matter on May 2, 200 I, please
withdraw the firm of Broujos & Gilroy, P.c. and Hubert X. Gilroy, Esquire as attorney for
Defendants in the above matter.
Respectfully submitted,
~GHroY, """",
Broujos & Gilroy, P.c.
4 North Hanover Street
Carlisle, PA 17013
(717) 243-4574
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Plaintiff
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v.
: CIVIL ACTION. LAW
STItEETGAJtD,INC.and
JOHN K. RICH,
Defendants
: NO. 00-1045 CIVIL TERM
TO: PROTHONOTARY, COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PENNSYLVANIA
PRAECIPE FOR DEFAULT JUDGMENT
Enter judgment in favor of Plaintiff and against Defendant(s), STREETGARD, INC. and JOHN K.
l\MENDED *
RICH, named for failure to file within the required time an Answer to the Complaint in the above-
captioned case and assess the Plaintiff's damages as follows:
Amount claimed in Plaintiff's Complaint
$705,526.78
$25.575.32
Interest froxnNovember 13,2000 at the legal rate of6% per annum
Total
$731,102.10
It is hereby certified that a written notice of intention to file this Praecipe was mailed to the
Defendant(s) and his attorney of record, after the default occurred and at least ten (10) days prior to
the date of the filing of this Praceipe. See Exhibits A & B attached.
KNUPP, KODAK & IMBLUM, P.C.
BY~;~~
Robert L. Knupp, Attorney for Plaintiff
DATED:
Judgment entered and damages assessed as above.
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* Per tel.ephone a:mversation
with atty Robert L. Knupp on
7-6-01 JHS
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Robert L. Knupp
Robert D. Kodak
Gary J. Imblum
. LAW OFFICES OF
.' NUPP, KODAK & IMBlUM, P.C.O
CAMERON MANSION
407 NORTH FRONT STREET
POST OFFICE BOX 11848
HARRISBURG, PA 17108-1848
Telephone: 717/238-7151
Facsimile: 717/238-7158
email: kki-Iaw@att.net
,
Robert Ewing Knupp
. - (1909-1976)
Robert H. Maun~r
(1923-1998)
~
STREETGARD, INC. May 24, 2001
JOHN K. RICH
17119 CARRIAGE DALE COURT
SPRING, TEXAS 77429
FILE COpy
RE: Pennsylvania State Bank
VS: Streetgard, Inc. and John K. Rich
In the Court of Cornmon Pleas
Curnberland County, Pennsylvania
No. 2000-1034 Civil Term
Dear Mr. Rich:
In accordance with Pennsylvania Rules of Civil Procedure 237.1, we are enclosing
herewith a Notice of a Praecipe for Entry of Default Judgment. According to the records as
they are found in the Office of the Prothonotary of Cumberland County, you have not filed
responsive pleadings to the Complaint filed against you to the above terrn and number, nor
has any attorney entered an appearance on your behalf. Accordingly, we are forwarding to
you the enclosed Notice which indicates that if you do not take action as set forth in this
Notice, we, at the expiration of time indicated therein, will request the Office 01f the
Prothonotary of Cumberland County, Pennsylvania, to enter Judgrnent against you in the
amount as set forth in said Complaint.
Very truly yours,
~~~~
Robert L. Knupp
RLK/pm
Enclosure
cc: DONALD BONAFEDE, PRESIDENT
PENNSYLVANIA STATE BANK
PO BOX 487
CAMP Hill PA 17001-0487
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PENNSYLVANIA STATE BANK,
Plaintiff
: IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PENNSYL VANIA
v.
CIVIL ACTION - LAW
STREETGARD, INC. and
JOHN K. RICH,
Defendants
: NO. 00-1045 CIVIL TERM
IMPORTANT NOTICE
TO: STREETGARD, INC. AND JOHN K. RICH Defendant{s}
DATE OF NOTICE: Mav 24. 2001
YOU ARE IN DEFAULT BECAUSE YOU HAVE FAILED TO TAKE ACTION
REQUIRED OF YOU IN THIS CASE. UNLESS YOU ACT WITHIN TEN {10} DAYS
FROM THE DATE OF THIS NOTICE, A JUDGMENT MAY BE ENTERED AGAINST YOU
WJ:THOUT A HEARING, 'AND YOU MAY LOSE YOUR PROPERTY OR OTHER
IMPORTANT RIGHTS. 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 FINn OUT WHERE YOU CAN GET
LEGAL HELP.
COURT ADMINISTRATOR - FOURTH FLOOR
CUMBERLAND COUNTY COURTHOUSE
ONE COURTHOUSE SQUARE
CARLISLE, PENNSYLVANIA 17013
(717) 240-6200
NOTICIA IMPORTANTE
Al STREETGARD, INC. and JOHN K. RICH, Demandado{s}
FECHA DE NOTICIA: May 24. 2001
USTED NO HA COMPLIDO CON EL AVISO ENTERIOR PORQUE HA FALTADO
EN TOMAR MEDIDAS REQUERIDS RESPECTO A ESTE CASE. SI USTED NO ACTUA
DENTRO DE DIEZ {10} DIAS DESDE LA FECHA DE ESTA NOTICIA, ES POSIBLE
QUE UN FALLO SEIA REGISTRADO CONTRA USTED SIN UNA AUDIENCIA Y USTED
PODRIA PERDER SU PROPIEDAD 0 OSTROS DERECHOS IMPORTANTES. USTED
DEBE LLEVAR ESTA NOTICIA A SU ABOGADO EN SEGUIDA. SI USTED NO
TJ:ENE ABOGADO 0 NO TIENE CON QUE PAGAR LOS SERVICIOS DE UN ABOGADO,
VAYA 0 LLAME A LA OFICINA ESCRITA ABAJO PARA AVERIGUAR A DONnE
UGTED PUEDE OBTENER LA AYUDA LEGAL.
COURT ADMINISTRATOR - FOURTH FLOOR
CUMBERLAND COUNTY COURTHOUSE
ONE COURTHOUSE SQUARE
CARLISLE, PENNSYLVANIA 17013
(717) 240-6200
EXHIBIT
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PENNSYLVANIA STATE BANK,
Plaintiff
v.
: IN THE COURT OF COMMON PLEAS
: CUMBERLAND COUNTY, PENNSYLVANIA
: CIVU, ACTION - LAW
STREETGARD, INC. and
JOHN K. RICH,
Defendants
: NO. 00-1045 CIVIL TERM
To STREETGi\RD. INC. AND JOHN ~ Dofuodoot(,)
You are hereby notified that on .- "" ~
(Judgment) has been entered against you in abo -captioned case.
Jud,ment entered in the amount of$731.102.10.
. 20P.,/the following
DATE:
~ f2L,
Prothonotary 7 61JA
I hereby certify that the name and address of the proper person(s) to receive this notice is:
7-~~'(J/
STREETGARD INC. AND
JOHN K. RICH
17119 CARRIAGE DALE COURT
SPRING TX 77429
AI STREETGARD. INC. AND JOHN K. RICH. Defendido/a Defendidos/as
Por este medio se Ie esta notificando que el de del 20_,
eVla siguiente(Fallo) ha sido anotado en contra suya en el caso mencionado en el epigrafe.
FECHA:
Protonotario
Certificao que Ia siguiente direccion es la del defendido/a segun indicada en el cetificado de
residencia:
STREETGARD INC. AND
JOHN K. RICH
17119 CARRIAGE DALE COURT
SPRING TX 77429
Abogado del Demandante
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