HomeMy WebLinkAbout02-5851IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY
COMMONWEALTH OF PENNSYLVANIA
CAPITAL CREDIT CORP. :
Plaintiff :
SCOTT PHILLIPS :
Defendant :
CIVIL ACTION - LAW
No.: 09-
NOTICE
TO:
SCOTT PH1LLIPS
2119 Kentwood Drive
Lancaster, Pennsylvania, 17601.
Pursuant to Pa. R.C.P. No. 236, you are hereby notified that judgment by confession has been
entered against you in the above captioned matter.
Date:
December 9, 2002
Curt Long, Prothonotary
lfyou have any questions concerning this notice, please call Philip L. Zulli, attorney for plaintiff, at this
telephone number: 717-238-9004.
IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY
COMMONWEALTH OF PENNSYLVANIA
CAPITAL CREDIT CORP. : CML ACTION - LAW
:
Plaintiff :
: No.: ~' '5-~--/
SCOTT PHILLIPS :
Defendant :
CONFESSION OF JUDGMENT
Pursuant to the authority contained in the warrant of attorney, a verified copy of which is attached as
Exhibit A to the Complaint filed in this action, I appear for the defendant and confessj udgment in faw~r
of the plaintiff and against defendant as follows:
Amount of Note:
Dishonored check, #2831:
Stipulated Attorney's fee
of 10% or $5,000 whichever is greater
Credit
Total:
$25,000.00
$13,995.00
$ 5,000.00
($6,935.00)
$37,060.00
Plus interest at 10 % per annum on the amount of the note after date of entry of judgment under
the terms of the verified copy of the original note attached at Exhibit C oft.he Complajot.
'lip L. Zulli, Esquir'e~
Attorney Id. No. 47499
Judgment entered as above,
1501 North Front Street
I-Iamsburg, Pennsylvania 17102
(717) 238-9004
,2002.
Curt Long, Prothonotar3q
IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY
COMMONWEALTH OF PENNSYLVANIA
CAPITAL CREDIT CORP. :
:
Plaintiff :
¥$- :
: No.:
SCOTT PHILLIPS :
:
Defendant :
CIVIL ACTION - LAW
CERTIFICATE OF RESIDENCE
I certify that plaintiff, Capital Credit Corp., is located at 1100 York Street Mechanicsburg,
Pennsylvania, 17055, and that defendant, Scott Phillips', last known residence was at 2119 Kentwood
Drive, Lancaster, Pennsylvania, 17601.
I understand that false statements made in this certificate are subject to the penalties of 18 Pet.
C.S.A. §4904, relating to unswom falsification to authorities.
Philip L. Zulli, Esquire
Attorney Id. No. 47499
1501 North Front Street
Hamsburg, Pennsylvania 17102
(717) 238-9004
Attorney for Plaintiff
IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY
COMMONWEALTH OF PENNSYLVANIA
CAPITAL CREDIT CORP.
Plaintiff
vs.
SCOTT PHIl ,LIPS
Defendant
: CIVII, ACTION - LAW
..
_-
COMPLAINT
NOW COMES, Plaintiff, Capital Credit Corp., and files this complaint pursuant to Pa. R.C.P. No.
2951 (b) for judgment by confession and avers the following:
l. Plaintiff, Capital Credit Corp., is a Pennsylvania Corporation with a principal place of business
address of 1100 York Street, Mechanicsburg, Cumberland County, Pennsylvania 17055.
2. Defendant guarantor, Scott Phillips, is a natural person whose last known residence was 2119
Kentwood Drive, Lancaster, Pennsylvania, 17601.
A true and correct copy of the original instrument of guaranty executed by the defendant at
Plaintiff's principal place of business address and authorizing warrant of attorney to confess
judgment is attached as Exhibit A.
The guaranty executed by the defendant guarantor guaranteed:
"full payment of any and all debts of the Dealer [Loyd's Garage] to
Capital Credit including without limitation any debts evidenced, created
or secured by the Exclusive Floor-plan Agreement, Security Agreement
or Promissory Note . . . and any checks issued to Capital Credit ..... '
(See, paragraph ! of attached Exhibit A)
Judgment is not being entered by confession against a natural person in connection with a
consumer credit transaction.
6. The attached original instrument at Exhibit A has not been assigned or transferred.
7. Judgment has not been entered in any jurisdiction on the attached original instrument at Exhibit
A authorizing confession.
8. Dealer Loyd's Garage is indebted to plaintiff in the sum of $32,060 which amount represents
the amount due the plaintiff pursuant to the Exclusive Floor-Plan Agreement signed by the
parties dated June 7, 2001. A true and correct copy of the Exclusive Floor Plan Agreement is
attached as Exhibit B.
9. Of said amount, $13,995.00 consists of a dishonored check issued by Dealer Loyd's Garage to
Capital Credit and the balance consists of arrearages in the amount of $18,065.00. A true and
correct copy of the dishonored check is attached as Exhibit C and a true and correct copy of
statement of balance due is attached as Exhibit D.
10. Dealer Loyd's Garage executed a promissory note in the amount of $25,000, which partially
covered the total amounts incurred under the Exclusive Floor Plan Agreement. A true and
correct copy of said promissory note is attached as Exhibit E.
11. Defendant guarantor agreed to attorney fees in an amount equal to 10%, but not less than
$5,000. (See, paragraph 10 of attached Exhibit A.)
12. Defendant guarantor waived prior notice and an opportunity to be heard prior to confessing
judgment. (See, paragraph l0 of attached Exhibit A.)
13. Notice demanding payment from Defendant guarantor was mailed on November 21, 2002. A
true and correct copy with attached certified-mail sender's receipt is attached as Exhibit F.
14. Plaintiff demands judgment as authorized by the warrant of attorney to confess judgment within
paragraph 10 of attached Exhibit A.
15. Consequently, the defendant is liable to plaintiff as follows:
Amount of Note:
Dishonored check, #2831:
Stipulated Attorney's fee
of 10% or $5,000 whichever is greater
.Credit
Total:
$25,000.00
$13,995.00
$ 5,000.00
($6,935.00)
$37,060.00
plus interest at 10 % per annum on the amount of the note after date of entry ofjudgment under
the terms of the verified copy of the original instrument attached at Exhibit A of the Complaint.
WHEREFORE, Plaintiffdemandsj udgment against the Defendant in the sum of $37,060.00 plus costs
of suit as authorized by the warrant of attorney appearing in the attached verified copy of the instmmen[t
at Exhibit A.
Philip L. Zulli, Esquire
Attorney Id. No. 47499
1501 North Front Street
Harrisburg, Pennsylvania 17102
(717) 238-9004
Addendum C
GUARANTY
i~, .GUARANTY ~S from ~:
and ~~ an individual rt~di.= at~ ,
C
~ u,atmrcailed Lender,,)acorporaiionwithitsprmcim, lofficent ~,~v__, .... toCAPITAL
"- - · .~' -~,,~ Street, Mechenicsburg, Pennsylvania 17055.
Auc~ion,[nc.,ll00y . sy am~nedana~e in g DeMer(nnmedandd * . , .
~ .-,m .ao~ ]WI , the ~..~, M w ~- chas~ v~ "utomoou~nt '
orsecu _ ~/m~tOtfmyandMlde ,_ ~r~eu, .n~erun~ormore, intom l'l~Ourg Auto
red by the Exclusive bls of Dealer to C tM [deraflon thereof,
~..~ ......... Iqoor-planAorm.~,~oc ...... apl Creditindudino,,a~,.. ....... . PersomdlycovenanL
with an lots or '-.-~-'~- ' . .,-v~?ts") and any che~kl '~/.~'~_'",~_'~.'-.r~. _mmoryrqoteexecuttd bvthe rb-L-~--'-~----'.'- -'~~K~'created
by Capital Credit m roiiecti .... ~__ap. redit.byDederoran oflhmb,d .... .herewith(and
· .s -- mu~upun~ to collect such deK,- ~--,---~----- .' .~[,,aanauves, totether
oer me Other Documents in occur .mcs a) me prompt, puncAual and tull ·
Guarmto · .. . dance Mth the terms and tenor th payment of the pnncapal of the line '
covenant°~t .m w_n_ _ting .and ss..g..~cl, by them on the face ofth, ~ ........ ere°f, all m completely and effec~llv n_~, of credik, en~.. any fees ac~ed
Guaranty; and c) that ifa default under lhe under the provmens of the tm,_ ,, _ tony and all of the aAreem~m~
Note and will perform or Other Decuments shall occur ·
came to be Performed all , ~ Guarantors vail ron~"'~ Lmcuman~ ex~cmed of even da~ with
such terms, covenants and c,,,a;a ..... IP_ I~Y. n~ceor ce.U~lmYment,,~ ~. ........
3. The undersigned ncknowledgn(s) ~ Cnpital Credil shall have the fight
?ll.aIeral security, to extend or chanRe term of payment and to se~le
msct~arging or affectin8 the liability o~the undersigned hereunder, to refuse to transact
or compromise with business will~ Deal~, modify or rele~e eny a~l all
De.~er without notice to Iha undersigned and withoul
4. This guaranty is to be a continuing 8unranty and the undersigned hereby w~ives
protest, and eny notice of nonpayment or dishonor, notice of acceptance of this guaranty and pre~n~T~ent, dem,,,~d,
5. Guarantors agree thai their liability hereunder m G '
or vath~...m their knowledge or ~',~,-~+~ ~e.k .. ?;antor shall not be irnnnirad or .~r
~ o~,,~.~ed the,.,o ot~. o'F'th~.'~: ~?me ~. ~,~,.,.~ of~ ~,o~£~.. ~'~V,:°~ :_~ ~_"no"~ o, ~t,,~o.,~,.
e~-Iorcin~ the oblio.+~.. -~-~- ,~,,m uno provisions of the ~'~k.. ~,_ _ --'- .... "~'~ t.,ocumem~ ~,, ~ra._ .: . may be made (with
p mom et the Note, or the O~er ~ .......Docum~ m eccordance with ~e ..... ~d.el~, ? .mtorcm~ payment of the
..... · .,~ ...... .,~eo~; or cj ny any modi~c~ion ofthe
6: G .u.m'antors agree that they rn~y be 'oinad ' -
~l~i~u~ s.u, ch ec..tion or am/independ~t acligmwia~oa~u~_°~..t_r ~..emand for Arbitration ~,nmst Dead .,,a ,. .....
· ,.u,u. me couection of the securiw oot^..~..~ =..,~"s ~...x~g any remedy or claim .o-;-... ~-e-ri "Y -~,m!e~overy nmy ne had '
· ; ..... ~ ny me sma Agreement debt =*--,~, ~..~uer, lnctoamg soeeifi~lh, I,...u.~t,.Gl~r.antors
......... ; --, wmmUt unnta~ofl of
'Y agrenment. ~ bankruptcy or any msignment in favor of cr~itop~ of Deaim.
8. This ms0'ument shall brad the respec.ve hints, executors, administrators, and assi~n~ ntis. ,-.~_ .___. .
its successors, assigns and subrognas
· ' ' ' ' eat otCapital Credit
RANTOR. In be mt~J~"S OF ATTORNEy
knowingly, imenti v reby granting these warronrs of FOR ANY ATTORNEy
· onaUy, ulun , and attorney to con~ TO CONFESS JU ,
hea~ under _tor~: uncondlUo · _ . eu jud · . DGM~NT~,
he . regomg, ~qmrontor bereb ' . nweM(b of p I~,ni, prlo. lice ~ ~1 -.- .
arm~ prior to execu . y spectfl ~ _ and the U opporll~y for
tion upon an tally wa~s all n~ed States of
ro~onotarv of ........ U~e loan ~ .......... to the terms r; ...... pp~_rtmdl~ for u
._ -- ~uy Luun oi,~- ...... Igreeal4m-~ ~., m~wr ...... hereef..~ .............
~ns, for~eenflre _ meretntoenl~rand __ . ppenrforkq..~n~r rney. the
a~o , amount due tv c~afess judpn~ in any encb cou
rueys fees in n lender upon such defaul apmst guarmtor in f~ ~ and wi~
doinf thh ou ..... __~_ ut ~ual to ttn (10%) m,,...,t .,..._. t or. event of default as Drovid,d k,.~. Lav_°_r~°fimder or fu sueceuo,~
confess ~ud'~."~"-~ ~ a copy nereot vermed b~,'~n'~' Y'"~.sums, ~ut h no event leu dun "~--~"-' "~ ,-pmer wfth cern or suit ~-'-,'
. :. s,,Km Shah not be exha ...... ~ uam shall t)e a soffi,.t._ ....... .v~ mousand (SS,O00.O0~ .,..- ....
· le from lime n fl.. .... .~, .. . s~, y one or mere ex-.-.a-- ..- ..... ~ authorllv im,~4n .--=~_., ~ · m for so
Gua; m.,u~, a~in~..,.., ...... payluent of MI ~me.~...,.._. y defotl~ tl~.,..r ...... pier, ter m~d
gum~m~ ,,,d r ..... .'T"'"""su mas b~b'm~ h .... ~. .... -~ nrom ~uarantor to b~dn~..t~.~u~en", .m ~ cOminue and
ezplmued to ~farnnto i.. _..e~d_~ gas that the meaning and ef~ tflr°P~.~r.r~--.JtY., forassbmnce ofletM counmd b. ,~md--.n?~r' t~. loin documems
---s Pmr~mmr knowfnd~ r,~,g~Pre' .-"''- -~ confmala. ,.# :..~__ __ :;' ....
---.,'; --. ~n,s me ,asflst&lice of ~ ------ -'J""lpl~nt Im~ ~ fully
~'aplt~....~clt~ve m-_ ~ _ ,-~,,my, me Imoersin~.d m
%<:: '~' L (Gua~anto0 WitheS:
Ly~
CAPITAL CREDIT CORP.
EXCLUSIVE FLOOR-PLAN AGREEMENT
(with Attached Dealer Profile, Security Agreement, Guaranty and Promissory Note)
This Exclusive Floor-plan Program (hereinafter the "Agreement") is entered into on this the ~7~'/ day of
is__ / / ~1~_~.~3/ C ~_$ ?~~ 'OC~/ ~ ~ t,__7_.___ds~(hereinatter,Dealer,,),whoseaddress
a Pennsylvania Closely Held Corporation, whose address is 1100 York Street, P.O. Box 121 I, Mechanicsburg, Pennsylvania, 17055
__ ,-.--o~~.~ ! ,,5'/~ . and Capital Credit Corp.
(hereinafter "Capital Credit").
1. RECITAL OF PURPOSE I~OR AGREEMENT AND CONSIDERATION. Dealer is a merchant engaged in the commercial
business °fselling automobiles at wholesale and/or to the public. Dealer desires t° enter into this Agreement because Dealer needs money
from Capital Credit to purchase automobiles at wholesale from Harrisburg Auto Auction, Inc., which automobiles Dealer then intends
to sell at wholesale or tofetad purchasers at his licensed dealership at the address identified above. Automobiles so purchased will be
used by Dealer m pts busmess and not for f..arm y, household Dr personal use. Cap~tal Credit Corp., is a finance company engaged in
commercial business of lending money to licensed automobile dealers for the purchase of automobiles. Capital Credit desires to enter
this Agreement and finance Dealer's purchase of automobiles from Harrisburg Auto Auction, and provide a floor-plan arrangement to
Dealer up to the amount of the line of credit set forth hereinafter at Paragraph 2, in exchange for the fees stated hereinafter at Paragraph
6. Capital Credit is only willing to ex'tend this financing based upon:
a) ealer s representatmns contained in Dealer's Application (attached hereto
D ' '
as Addendum A); and incorporated as pan of this written Agreement
b) Dealer's execution of, and the promises contained within, the Security Agreement (attached hereto and incorporated as part of
this written Agreement as Addendum B);
c) The COvenants contained in the personal Guaranty or Guaranties (attached hereto and 'ncorporated as part of this wrinen
Agreement as Addendum C);
d) Dealer's execution o~ and the promises contained within, the Promissory Note and Confession of Judgment (attached hereto and
incorporated as pant of this written Agreement as Addendum D);
e) The ~ndividual written security agreements and other documents, described at Subparagraph 4 (a) below, that Dealer promises
to s~gn and provide to Capital Credit for each individual automobile for which Dealer receives financing fi'om Capital Credit,
t) and Dealer's Commitment to discharge its fiduciary duties described hereinafter at Paragraph 8.
In consideration of the line of cre:dit and fees and the commitments and promises stated herein and of other cod ·
./~sideration, the receipt and sufficiency of which are hereby acknowledged, Dealer and Ca ltal Credl[ e g and valuabh.
~.~. ,~ mutually desired floor-plan arrsgl~er0ent on the terms and conditions s P ' nter this Agreement to effectual
y4~. ' ~i'~E~0- ' CZl~i~ %~urin g/tt~,~t e/rrn~ tared within this itw~.aitten Agreement e
. · s an of this Agreement, Ca ital Crc
~i~of-~ecreS..~T~'OL,_:__. _00 Capital Credit may, withinitssp' . d!the_rebyestabl,shesforDealeralineofcredit n
'cult up°n wrmen not,ce to the Dealer. Said · ~.,e°.~ dJ~s_c, ret'on ~:hange the max,mum cred,t available to D the am°unt
written nv.,. ~nall become a part of this written Agreement. ealer under this
3. ADVANCES UNDER LINE OF CREDIT. If Dealer chooses to exercise his privilege to floor-plan the purchase of an automobile
at Harrisburg Auto Auction, Inc, pursuant to the line of credit set forth at Paragraph 2 above, and agrees to provide to Capital Credit the
s~gnatures and documents described m Paragraph 4 below, Capital Credit agrees to make an advance hereunder to Harrisburg Auto
Auction, Inc., on Dealer's behalf, in an amount equal to the purchase price of the automobile, plus the A ' ·
plus the applicable finance fee set forth in this Agreement at Paragraph 6 be ow and such advance shall be due and payable on the terms
uctlon s standard buyer's fee,
and conditions specified at Paragraph 9.below. '
4. DOCUMENTATION FOR ADVANCE. As a precondition for any advance under the line of credit, Dealer agrees to execute and
instruments:
provide to Capital Credit on the same day that Dealer purchases the floor-planned automobile at the Hamsburg Auto Auction the following
a) A UCC-1 form security agreement granting to "Capital Credit Corp." a purchase money security interest in the floor-planned
automobile and all proceeds resulting from the sale of the floor-planned automobile.
b) The title to the floor-planrted automobile, with a lien in favor of"Capital Credit Corp., 1100 York Street, P.O. Box 121 I,
Mechanicsburg, Pennsylvania, 17055" noted in writing on the title.
c) A separate check in the amount of $50.00 made payable to "Capital Credit Corp"
Credit's administration cosr. s ( $ 000 Tit e/Administration fee") . to cover the title and lien fees, and Capital
5. TERM OF ADVANCE. Dealer shall have the option of repaying Capital Credit for an advance for the purchase of an automobile
fi.om Harrisburg Auto Aucuon within a term of 30 days, 45 days or 60 days A finance fee based upon the amount financed and the length
of the term of the advance will be assessed according to the schedule of fees set forth at Paragraph 6 below. Capital Credit may, within
its sole discretion, change the length of the available terms upon written notice to the Dealer and said written notices shall become a part
,'r- ?57 e /
of this writlen Agreement,
6. SCHEDULE OF FINANCE FEES. In consideration for the granting ufa line of credit and the making of advances hereunder, Dealer
agrees to pay Capital Credit a finance fee for each advance for each automobile purchased in accordance with the following schedule of
fees:
Total Purchase Price
$1oo _ $5,000 $ 75 ~s ~
$5,001 -- $7,5o0 125 $ ~25 $ 200
$7,501- $10,ooo 150 175 250
225
$10,001 -- $15,000 200 300
$15,001 and up 300 300 400
350
5OO
Capital Credit may, within its sc,le discretion, change this schedule of fees upon written notice to the Dealer and said written notice shall
become a part of this written Agreement.
~ee' P~E,N.A_L_TY, FOR EXCEEDING TERM Advances for automobfi.es that are not repmd w~thm 60 days will be assessed an additional
ors[ .oo a aay, per each $1,000, or part thereof advanced, to be prod weekly until the total advance for the unit is paid Deal~' ma
elect to use this provision, provided the applicable automobile has n . · .
oNf~n~,t~a~y rem,.n...un !he floo,~plan longer than 90 days, and suc~°t b'neeLs~ I~d-'-~f~ealer ,s unable, t.o.sat,sfy an advance within 60 ,la y
r~i;~Y_.~m~e,. ~..e.a,e.r agrees that Capital Credit may deem Deale~ to~;7~'~-?.~ a~_b..reach ~,th,, Agreement. In cure ora bre~cYSJ~
a ~anteu oy tins ^greeraent or applicable law ~,o-,, m~u permitted to exercise any or all appropriate
$. DEALER'S FIDUCIARY DUTIES. Dealer has a fiduciary duty to Capital Credit to:
a) disclose to prospective purchasers the existence ufa lien to Capital Credit on the title for the floor-planned automobile;
b) notify Capital Credit within one business day of Dealer's sale of an automobile floor-planned hereunder;
c) repay Capital Credit for each advance for each automobile financed under this Agreement from the proceeds that Dealer receives
from a purchaser of the floor-planned vehicle.
9. DUE DATE FOR REPAYMENT. Dealer shall repay each advance within either
a) SEVEN (7) days of the Dealer selling the floor-planned automobile to the purchaser, or
b) on or before the 60~' day following the day upon which the floor-planned automobile was purchased by Dealer at Harrisburg Auto
Auction, Inc.
10. DEPOSIT DATE OF DEALER'S CHECK. Capital Credit will deposit dealer's check upon receipt, at its convenience. ONLY
UPON RECEIPT OF GOOD FUNDS, will Capital Credit relea~ its lien and forward the applicable automobile title to Dealer,
In the event Dealer has not yet sold the automobile within 60 days of the advance, and Dealer is without sufficient funds to satisfy the
advance, Dealer may upon written or verbal notice to Capital Credit elect to proceed under Paragraph 7 above (relating to Penalty for
Exceeding Term).
11. TERM OF AGREEMENT.. The commitment for a line of credit under this Agreement shall be from the date Capital Credit accepts
and executes the same until this Agreement is terminated by either party in writing to the other party. This line of credit under this
Agreement may be terminated immediately by either party upon written notice to the other patty, provided that this Agreement, and any
covenants and all of Dealer's obligations outstanding at the date of termination under this Agreement, or any of the related floor-plan
documents shall remain bindin8 and enforceable and in full force and'effect after termination of this Agreement until they have boen
indefeasibly paid and performed in full.
12. COMPLIANCE WITH I'HE AUCTION RULES AND LAW. Dealer agrees to abide by all of fha rules and regulations of
Harrisburg Auto Auction, Inc., and to comply with all applicable state laws.
13. EVENTS OF DEFAULT. Dealer shall be in default under this Agreement upon the happening of any of the following events:
(a) nonpayment, when due,
to observe of any amount payable under this written Agreement and the incorporated attached Addenda, or failure
or perform any term thereof,
(b) if any covenant, warrant?.,, or representation agreed to or made by Dealer or Guarantor in this Agreement or any other document
executed and delivered in connection herewith shall prove to be untrue in any material respect;
(c) any Dealer or Guarantor becomes insolvent or unable to pay debts as they mature;
(d) filing or commencement of Bankruptcy by or against any Dealer or Guarantor;
(e) death of any Dealer or Guarsmor who is a natural
(0 dissolution, merger or consolidation, person, or of any partner of any Dealer which is a parmership;
or transfer cfa substantial pan of the property of any Dealer which is a corporation or a
parmership;
(g) loss, theft, substantial damage, destruction or encumbrance of any of the Collateral; or
(h) if Capital Credit deems itself insecure for any reason.
14. REMEDIES IN EVENT O.F DEFAULT. In the event cfa default, Capital Credit Corp.
demand or n°tica, t° declare all or any part ofthe advances made here.._a__. .... ,. sha!l have the right, at its option and w~thout
may exercise, in addition to the nahts an r,. ,,,~; ....... · *. .... mzu~:.r, immeom~ly cue and payable; and in additio Ca
Commercial Code or any other applicable ~,,, m,u r~meules eli {dapital Credit under the Un:iform
at a place to be designated by Capital law. Dealer agrees in.the event cfa default, to make the Collateral available to Capital Credit
further agrees to pay all Credit, and also authorizes immediate repossession of the collateral without prior notice. Dealer
costs and expenses of Capital Credit includina ~..A__~., ......
under this Agreement or the en£orcement of any of Capital Credit's ri '
', ~ ,~.~,,,au,c anomey tees, in the collection of any obligation arising
connection herewith. If an notic ,~;,~;o: ......... . _ ~.? u~.d~ this Agreement or any other docum exe ~. '
such notice shal] be deemed re~onable and properly given if mailed to Dealer at the address specified above (or at such other address
~ ~n~u ~s ~Ult IS requlre~l ~y law to be given to Dcaler,
0f Dealer as may have been given in writing by Dealer to Capital Credit) at Icasl seven (7) days before such sale, disposition or other
intended action. Waiver of any default or obligation hereunder by Capital Credit shall not be waiver of any other default or oblil~ion
cfa same default or obligation on a later occasion No delay or failure hv C', ' · : .... . or
ofsuchrightorreme and no sinnle rn 'olo,~,~:,,~..,~ ...... ~-_;~ ~'Phal. C. red~t to exerc,s~ any nght or remedy shall be a vndver
dy ~ o ram ........... y ~plmi creon otany ngtit or remedy shall preclude another or further exercise
thereof or the exercise of any o0mr right or r~aedy at any other time.
15. SIGNATORIES, JOINT AND SEVERAL OBLIGATIONS, SUCCESSORS AND ASSIGNS. Ifmore than one party shall
this Agreement, the term "Deale~" shall mean all such parties and each of them and ali such panics shall be jointly and severally oblisUed
hereunder. All rights of Capital Credit shall inure to the benefit of its successors and assigns, and all obligations ofDeale~ hereondar shall
bind Dealer's heirs, executors, administrators, successors and assigns.
16. GOVERNING LAW and 'VENUE. This A~'eemant and the notes and other documents executed in connection herewith were
executed in Mcchanicsbur~, Cumberland County, Pennsylvania, and the rights and obligations of the par~ies shall be governed by,
enforced under, and interpreted in accordance with the substantive law of the Commonwealth of Pannsylvania without regard to its
principles of conflicts of law. Venue for any legal proceeding shall be Cumberland County, Pennsylvania.
17. ARBITRATION, The exclusive remedy for any dispute, con~'oversy or claim ahsing out of this agreement will be submission to
arbitration. Each puny shall s~lect an arbitrator within 60 days al%r notice by the complaining party and the two so named shall ~hereal~er
select a third arbitrator within 30 days. If the two so named do not select a third arbitrator within 30 days, the third arbitrator shall be
selccted by the American Arbitration Association. The decision cfa majority of the arbiuators will be final and bindir~ upon the pm'ties
and shall be non-appealable. All hearings in the arbilration shall be held at
Le~s~en~rfoth~sioa~n' Il00 Y°rkSueet,Mechanicsburg, Pennsylvania, 17055. Any
as in any co,, o compe t uriedictinn an
......... ~ awara t:acn party shall bear the fees ..... d may be enforced es such in ar~-~.~
expenses of the third * ~ tutu expenses otits ,-,, ..... t ..~ ....... ~ ....
.... -,, wam~SeS asa arollrator, and the fees n,rld
arbitrator and the cost of the arbiu'ation shall be borne as set forth in the award, or in the absence of an award ~r a
specific determination by the arbitrators or agreement ofthe attics, sh · .
be specifically enforceable by the pett~es, and they confirmp - . all be ,~.bo_,t,'n_e,_,_,_, eq.ually~ by the parties. This agreement to arbitrate sh
thai they intend that all d~soute~ con ....... - . all
arbitrated, except that Capital Credit may ' ' ~ ----, ,,~,-~s or claims orany kind shall be
mstRute or refer charges pursuant to i 8 Pa. C.S. §410~ (relating to bad checks).
1 $. MIilRGER. This wntmg and the writings expr~sly incorporated herein by reference comain the entire agreement beiwenn the patlias
and supersedes all prior oral or ~'iRen representations, understandings, promises or agreements which are not included herein.
19. ORAL MODIFICATION PROtIIBITEI). This agreement shall not be amended or modified or any of its provisions waived, unle~s
in writing and signed by the duly authorized
including one respecting the provisions ofthi;epresenuitives of all parties, and any purported oral amendment, modification or waiver,
sen~nce, shall be void and of no force or effect. Any such wriiien waiver shall apply only
to the provision waived and shall not apply to any other provision or to any subsequent default or muller within the provision waived.
Intending to be legally bound, the Parties hereto affix their signatures in agreement to the foregoing terms and conditions, on the day,
month, and year
Signature: ' ' '
Print Name and title~
for (Print Dealership name Lynn ¥ eaver, Secretary-Treasurer
----~"~ for: Capital Credit Corp.
PAGE.81
9
I0
Il
12.
Addendum D (Page one of two pages) PROMISSORY NOTE
.... ~-'~'0 I__ (date)
$- ~ ~" ~')(-~. tr~ . [enter amount of Bne of credit] at Mechanicsburg, Cumber and County, Pennsylvania, FOR VALUE
RECEIVED, w~thout defalcation, and intending to be legally bound, ]'--~$FL>:~ t~/~'~' ~ , a
Pennsyb~'ania licensed vehicle Dealer (which is a [check one] ~ sole proprietorship cl partnership El business corporation cl limited liability
corporation) (hereafter called the "Maker") with ts ~ri-~:--' -* , · -
· ~ m~qJm omces ~ocatea at the address stated with n the Capital Credit Exclusive Floor-
plan Agreement, to ~vhich this Agreement ~s attached and incorporated as Addendum D, hereby unconditionally promises to pay to the orciler
of CAPITAL CREDIT CORP. (l'~ereinafler called "Payee"), at 1 t 00 York Street, Mechanicsbur$, Pennsylvania, 17055, or at such other
address as the Payee may from time to time designate in writin8 to Maker, the pnncipal sum of [enter in words amount o line o
· dollars ($ ~' ]
~, together w~th ~nterest thereon at the
rate per annum ofTEN percent (10 %), which rate shall be in effect _on v afler entr~ of any judgment entered or pursuant to this Note
should such become necessary due to a default on
The principal sum of this Note and any other amounts due hereunder shall be payable in lawful money of the United States of
America in the manner provided in a document signed this same date, and entitled "Capital Credit Corp. Exclusive Floor-plan
Agreement"
2 Overdue principal and interest on the principal sum of this Note and all other overdue amounts payable hereunder or under any
Loan Agreement (defined below) or any other document delivered by Maker in connection with this Note or the Loan Agreement
shall bear interest compounded and payable on demand at a rate per annum ofTEN percent (10%) until such amount shall be paid
tn full
The pnnctpal sum of this Note shall be payable immediately upon written demand for payment by Payee, and in no event not less
than three business days flora such demand
The pnnc~pal amount of th is Note may be prepaid in whole or in part at any time without penalty, provided that any prepayment
shall be accompanied by ~yment of any accrued penalty fees as provided in a document ofsarne date and entitled "Capital Credit
Corp Exclusive Floor-plan Agreement."
Maker's obligations under this Note, and certain other obligations of the Maker to Payee, are secured pursuant to a certain Security
Agreement dated as of the date hereof pursuant to which Maker has granted to Payee a lien and security interest in certain
of'Maker ("Security Agreement")
The obligatmns of Maker ;are further guaranteed by certain individuals and/or shareholders and/or affiliated corporations (each
individually included within the term "Guarantor"), which have each guaranteed the obhgauons of Maker pursuant to a
Agreement (individually and collectively ailed Guaranty ) of even date herewith.
c " ,, Guaranty
Any default by Maker or ar,y Guarantor under the Capital Credit Corp. Exclusive Floor-plan Agreement, the Security Agreement
or the Guaranty or Guarant~es (the Capital Credit Corp. Exclusive Floor-plan Agreement, the Security Agreement or the Guaranty
or Guaranties are herein referred to as the "Other Documents") shall, at Payee's option, constitute a default under this Note
Subsequent to entry of judgment, alt payments hereunder shall be in lawful money of the United States of America and shall be
applied first to any unpaid costs or penalty fees due hereunder or under the Other Documents, then to accrued interest, and last
to the reductton of'the outstanding pnncJpal balance.
Maker shall have the night to prepay the principal balance of this Note, in whole or in part, at any time without penalty or premium.
Thts Note is ~ssued pursuant to the "Capital Credit Corp. Exclusive Floor-plan Agreement" between Maker and Payee of even date
herewith, and evidences the Loan to Maker via a Line of Credit made available by Payee thereunder.
For a statement of the Evants of Default which the indebtedness evidenced by this note may be subject to demand or mandatory
prepayment, or may become immediately due and payable, reference is made to Paragraph 13 of the Capital Credit Corp.
Exclusive Floor-plan Agreement
In the event of the happening of any Event of Default, and when such Event of Default shall have theretofore not been cured, in
addmon to the remedies in event of Default set forth at Paragraph 14 of the Exclusive Floor-plan Agreement, the Payee shall have
the right, upon written notice to the Maker, to declare the entire remaining unpaid principal balance hereof to be immediately due
and payable, whereupon the entire unpaid principal amount hereof and all other fees and penalty fees accrued under the Other
Documents shall become immediately due and payable (notwithstanding the notice requirements set forth at Paragraph 3 above)
in all cases w~thout any further action or notice on the part of the Payee. In addition, the Payee shall have all other rights granted
to ~t upon the happening of an event ofdefauh under the Uniform Commercial Code of the Commonwealth of Pennsylvania
Ad~J'endUm D (Page two of two pages)
13 WARRANT OF ATTORNEY TO CONFESS JUDGMENT: maker
Prothonotary or any attorney or any clerk of any hereby irrevocably authorizes and empowers the
court of record, with or without default, to appear for and canfess
judgment against maker for such sums ns are due an d/or may become due under this note, with or without declaration, with
costs of suit, without stay of execution and with an amount, for lien priority purposes, equal to ten percent (10%J, of the
amount of such judgment, but not less than five thousand dollars ($5,000.00), added for attorney fees. To the estant
permitted by law, maker re]eases all errors in suck proceedings. Ifa copy of this note, verified by afTMav/t by or on behalf
of the holder of this note shall have been t'ded in such action, it shall not be necessary to file the original note as a warrant
of attorney. The author/ty and power to appear for and confess judgment agaimt
initial exercise thereof and may be exerelsed ns often as the holder ...... maker shall not be exhausted iby the
be a sutT~cieut wa suan tree it nec~.ry an i -
rrant therefore. HoMer may confess on ..... : .... --- d des ruble and thL~ notre shall
· ....,,,,, c juugmeots la the same or different jurisdictions for ail
or any part of the amount owing hereunder, without regard to whether judgment has theretofore been confessed on more
than one occasion for the Same amoual. In the event any judgment eon fessed against maker hereunder is stricken or opened
upon application by or on maker*s behalf for any reason, holder is hereby authorized and empowered to again nppe~lr for
and confess judgment against maker for any part or all of the amounts owing hereunder, as provided for herein, if doing
so will cure any errors or defects in such prior proceedings.
] 4. Maker hereby VnUves avd releases all errors, defects and imperfections ora procedural nature in any proceedings instituted by the
Payee under the terms of this Note or the Other Documents, aa well as all benefit that might accrue to the Maker by virtue of any
present or future laws exempting any property, rea/or personal, or any part of the proceeds arising fi.om any sale of such
from attachment, levy or sale under execution, or prey/din8 for any stay of execution, exemption fi.om civil process or extension
of 6me for payment, aa well aa the right of inquisition on any real estate that may be levied upon under a judgment obtained by
virtue hereof, and the Maker hereby voluntarily condemns the same and authorizes the entry of such voluntary condemnation on
any wr/t o£exeeution issued thereon, and agrees that such rea/estate may be sold upon any such writ in whole and in part in any
order desired by the Payee.
] 5. No failure or dela on th~ art of'the Payee in exerc~sm8 any right, wer or nrivi o .... .~...L_,, _ . _
· Y ' P ' ' ' ' po r Ieee h,.re,,,,~,~, ~JJuJt operate as a waiver th~reo~
nor shall any sing]e or partial exercise of any right, power or privilege hereunder preclude any other or fin'ther exercise th~of
or the exercise of any etcher right, power or privilege. The Payee shall not be deemed, by any act of'omissiun or commission; to
have waived any ofi~ rights or remedies
] 6. · . . hereunder unless such waiver is in writin8 and signed by the Payee.
Th~s Note ~s executed and delivered in, and shall be governed by and construe,4; ...... .~
of Pennsylvania .... -,~,, uance wire the taws otthe Commonwealth
17. Maker's obligations hereunder shall be binding upon Maker's heirs, successors and a~igns.
18. This Note may only be amended by written in~trnment executed by both Maker and Payee.
19. This Note shall inure to the benefit o£Payee, its successors and assigns, and all Holders of this Note.
IN WITNESS WHEREOF, and intending to be legally bound hereby, Maker has executed this Note under his or her signature, or the
s~gnature of its authorized officer, as of the date and year first above written.
AT~EST: '
By (signature of maker)
Print Name:
Title:
Name of Dealer:
2119 IC, uaweod j:)ri~ ~
L~m~r, PA 17601 .eq
IAL
US E
VERIFICATION
The undersigned having read the forgoing Complaint states that the language within is true and
correct to the best oftbe undersigned signer's knowledge, information and belief.
This Verification is made subject to the penalties of 18 Pa. C.S.A. § 4904 of the Crimes Code
(relating to unswom falsification to authorities).
November 26, 2002