HomeMy WebLinkAbout01-0720 FX
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IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY
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PENNSYLVANIA
CIVIL ACTION
WA YPOINT BANK, F/KlA
YORK FEDERAL SAVINGS
AND LOAN ASSOCIATION
Plaintiff
No. 0 J- 7J.o CUI' 1
vs.
WILLIAM B. BARRICK
Defendant
COMPLAINT TO CONFORM CONFESSED
JUDGMENT
Plaintiff, Waypoint Bank, flk/a York Federal Savings and Loan Association,
by his undersigned counsel, files this Complaint pursuant to 41 P.S. 9407 and
Pa. R.C.P. 2983, to conform the judgment confessed in this action, and avers the
following:
1. Plaintiff, Waypoint Bank, flk/a York Federal Savings and Loan
Association (hereinafter "Plaintiff'), is a corporation organized and existing under
the laws of the United States of America, and it is registered to do business in
Pennsylvania, with offices for the purpose of doing business at 449 Eisenhower
Boulevard, Harrisburg, Pennsylvania 17105.
2. Defendant William B. Barrick (hereinafter "Defendant") is an adult
individual who resides at 103 Bungalow Road, Enola, Cumberland County,
Pennsylvania 17025.
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3. On August 10, 1999 Defendant executed a Guaranty for payment
of monies due under the Business Manager Agreement payable to the Plaintiff in
the amount of One Hundred Fifty Thousand and 00/100 Dollars ($150,000.00). A
true and correct copy of the Guaranty and Business Manager Agreement are
attached hereto, incorporated herein and attached as Exhibits A and B,
respectively.
4. On November 29, 2000, Plaintiff caused a judgment by confession
to be entered in the amount of $43,834.90 against the Defendant in the Court of
Common Pleas of Cumberland County as of October 31,2000, Term, 2000-
8341.
5. The judgment is a lien on residential property owned by the
Defendant in this County.
6. The following is an itemization of the amount presently due the
Plaintiff from the Defendant:
Principal. . . .. . . . . . . . . . . . . . . . . . . .
$43,834.90
Interest from 11/29/00 through 1/29/01
(inclusive) at $7.21 per diem. . . . . . . .
$ 447.02
$ 2,191.75
$46,473.67
Attorney's fees. . . . . . . . . . . .. ....
Total........................ .
7. The underlying obligation is not a residential mortgage for $50,000
or less and the notice requirement of 41 Pa. Stat. Ann. S 403 does not apply.
8. Notice of the entry of confessed judgement was mailed to
Defendant in accordance with Pa.R.C.P. 236 on November 29, 2000.
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WHEREFORE, Plaintiff demands judgment in the sum of Forth Six
Thousand Four Hundred Seventy Three and 67/100 Dollars ($46,473.67) as
authorized by 41 Pa. Cons. Stat. Ann. S 407.
Respectfully submitted,
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GUARANTY
KNOW ALL MEN BY THESE PRESENTS, that in order to induce YORK FEDERAL
SAVINGS AND LOAN ASSOCIATION, a federal savings and loan association, with its
principal offices located in the City ofY ork, County ofY ork, Commonwealth of Pennsylvania, (the
"Bank"), to extend credit to or on the account of NEW AGE GAMES, LTD., a Pennsylvania
business corporation (the "Business"), and for other good and valuable consideration, the receipt
and sufficiency of which is hereby acknowledged, and intending to be legally bound hereby, the
IU1dersigned, individually, jointly and severally, directly and unconditionally, do hereby guarantee
to Bank the prompt and full payment and performance of all Business's obligations to Bank, as
required by and defined in the BusinesslManager Agreement (the "Agreement") of even date
herewith in the amount of One Hundred Fifty Thousand ($150,000.00) Dollars, given to Bank by
Business. As used in this Guaranty, the term "Loan Documents" means collectively any instrument
or agreement in connection with the Loan as defined in the Agreement.
'This Guaranty shall constitute a contract of suretyship IU1der the laws of the Commonwealth
of Pennsylvania The liability of the undersigned is and shall be joint, several, unlimited, absolute,
primary, and continuing, and may be enforced without the necessity of prior resort by Bank to any
other rights, remedies, or securities under the Loan Documents or otherwise.
Without requiring any further consent or any notice, the undersigned assent and agree to all
renewals, extensions or postponements of the time of payment of any of said obligations; to all
compromises, adjustments, indulgences and forbearances; to all changes, additions, substitutions,
exchanges, releases or alterations to any collateral or security; to all provisions of all existing and
future instruments, documents and papers and amendments thereto, as may evidence, contain, give
rise or otherwise relate to any obligations of Business to Bank and to all things as may be done
pursuant thereto; to the addition or release of any other person or entity, primarily or secondarily
liable; and that the existence, occurrence or doing of any or all of the foregoing shall in no way
impair or diminish the liability of the undersigned to Bank.
The undersigned hereby waive: notice of acceptance of this Guaranty; presentment,
dishonor, demand, protest, and all notices thereof; all notices of any extension or renewals to, and
of any breaches, defaults, acts, omissions, or wrong doings by Business, or others; all notices in
connection with this Guaranty, except as specifically provided herein, or the obligations guaranteed
hereby or any security and of any action taken in reliance thereon; all other notices and demands of
every kind to which the IU1dersigned might otherwise be or become entitled; all diligence by Bank
in the exercise or enforcement of any rights or remedies whatsoever; any and all rights of
indemnification or other cause of action against Business relating to performance under this
Guaranty or the obligations gnaranteed hereby; and all suretyship defenses and defenses in the
nature thereof. The undersigned waive and renounce, for themselves, and their families, any and all
homestead and exemption rights which the undersigned, or their families may have under or by
virtue of the Constitution or laws of any State, or the United States, either now or hereafter to be
allowed as against their obligations to Bank by virtue of this Guaranty, or which may be allowed to
Business.
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The undersigned waive all rights of subrogation, repayment, reimbursement, or recoupment,
or any other "claim" (as that term is defined in Section 101 of the United States Bankruptcy Code,
as amended) which the undersigned might otherwise have from or against the Business, the
Business's property or the Business's bankruptcy estate as a result of the undersigneds' payment or
performance of the obligations. The parties specifically intend the waiver contained in this Section
to confer third-party beneficiary rights upon the Business and its successors and assigns, including
without limitation any debtor in possession or trustee in bankruptcy for the Business's bankruptcy
estate.
The undersigned agree: that nothing shall impair, diminish, discharge, or satisfy their said
liability under this Guaranty except payment and fulfillment of all obligations of Business to Bank;
to save harmless and indemnify Bank from and against any and all loss, damage, and from all
obligations, demands, or liabilities by whomsoever asserted, which are incurred or suffered or paid
by Bank as a result of, or in any way arising out of or following, or consequential to the transactions
evidenced by the Loan Documents between Business and Bank; that all rights and remedies
whatsoever of Bank shall be cumulative; and that all present and future debts, liabilities, and
obligations of Business to the undersigned, fixed or contingent, direct or indirect, secured or
unsecured, and of any kind whatsoever, are hereby subordinated to the present and future
obligations of Business to Bank and are hereby assigned by the undersigned to Bank.
The undersigned assume all responsibility for being and keeping themselves informed of
Business's financial condition and assets, and of all other circumstances bearing upon or relevant to
the risk of nonpayment or nonperformanc::e by Business under the Loan Documents and the nature,
scope and extent of the risks which the undersigned assume and incur hereunder, and agree that
Bank shall have no duty to advise the undersigned of information known to it regarding such
circumstances or risks.
This Guaranty shall be construed and enforced according to the laws of the Commonwealth
of Pennsylvania.
This Guaranty shall remain in full force and effect until Business has fully satisfied and
performed and paid all sums, obligations, debts and liabilities under the Loan Documents and this
Guaranty .
The within agreements, obligations, undertakings, representations and warranties shall inure
to the benefit of Bank, its successors and assigns, and shall bind the undersigned and their
successors. This instrument shall take effect as a sealed instrument.
If any amount due Bank under any of the Loan Documents shall remain unpaid or if
Business is in default under any of the tenns of any of the Loan Documents at the expiration of
fifteen (15) days after written notice thereof. to the undersigned, then the undersigned hereby
authorizes and empowers irrevocably, the Prothonotary, clerk of court or any attorney of any court
of record to appear for them in such court, in term, or vacation, at any time and confess judgment in
favor of Bank, jointly and severally, with or without the filing of an averment or declaration of
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default, for such amount as may appear to be unpaid, all interest due thereon and all reasonable
costs incurred in connection with the collection of such amount, together with an attorney's fee of
five (5%) percent of the total unpaid principal indebtedness, interest thereon and all other smns due
Bank by Business, and the undersigned waives and releases any and all errors which may intervene
in any such proceedings and waives all right of appeal and consent to inunediate execution upon
such judgment. The undersigned shall not cause any bill in equity to be filed to interfere in any
manner with the operation of suc::h judgment, hereby ratifying and confirming all that said attorney
may do by virtue hereof. The authority hereinabove granted shall not be exhausted by one exercise
thereof, but judgment may be confessed as aforesaid from time to time and as often as any default
shall occur hereunder. Confession of judgment may be made by filing copies of the Loan
Documents and this Guaranty Agreement in lieu of originals thereof.
The undersigned ac::knowledge that they understand the meaning and effect of the
confession contained in the foregoing paragraph. Specifically, they understand among other things
that (I) they are relinquishing the right to have notice except as provided herein, an opportunity to
be heard and the right to have the burden of proof of default rest on Bank prior to the entry of
judgment, (2) the entry of judgment may result in a lien on their property, (3) they will bear the
burden and expense of attacking the judgment and challenging execution on the lien and sale of the
property covered thereby, and (4) enough of their property may be taken to pay the principal
amount, interest, costs and attorney's fees.
IN WITNESS WHEREOF, the undersigned intending to be legally bound hereby, have
hereunto set their hands and seals this 10 day of /:/V" oS!- , 1999.
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WITNESS:
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William B. Barrick
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THE BUSINESSIMANAGER@AGREEMENT
WITH BUSINESSES AND PROFESSIONALS
TO: York Federal Savings and Loan Association
101 South George Street, P. O. Box 15068
York, PA 17405-7068
(the "Bank")
FROM: New Age Games, Ltd.
1302 Slate Hill Road
Camp Hill, P A 17011
(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 or services to Customers and purchased by the Bank
pursuant to the Bank's BUSINESSjMANAGER plan.
SECTION 1: DEFINITIONS
1.1 "Credit Application and Agreement" means a Credit Application and Agreement
executed by a Customer and any other agreement or documentation that governs the terms and disclosures
relating to a Receivable.
1.2 "Credit Memo" means a form reflecting a credit, other than a credit arising from a
payment, to a Customer's account with the Business.
1.3 "Customer" means a debtor obligated on one or more Receivables which arose from
goods the Business sold or services it rendered to the Customer.
1.4 "Face Amount" of a Receivable means on any date the outstanding balance of such
Receivable (after taking into account, without duplication, all payments, returns, credits, or allowances of
any nature at any time issued, owing, granted or outstanding), plus any taxes imposed in connection with
such Receivable.
1.5 "Invoice" means an invoice or similar evidence (whether in written or electronic form)
of the terms of a non-cash sale of goods or provision of services previously made by the Business to a
Customer.
1.6
Charge.
"Net Amount" of a Receivable means the Face Amount of a Receivable less the Service
1.7 "Obligations" means all of the Business's obligations to the Bank, whether pursuant to
this Agreement, under any note, contract, guaranty, accommodation or otherwise however and whenever
created, arising or evidenced, whether direct or indirect, absolute or contingent, now or hereafter existing
or due.
1.8 "Receivables" means all accounts, instruments, contract rights, chattel paper.
documents, and general intangibles arising 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.
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1.9 "Repurchase Obli!(ation" means the liability of the Business to the Bank under 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.
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.
1.11 "Service Char!(e" means a discount equal to three and 81/100 percent (3.81 %) 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, forbearanc,e 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 Assi!(nment 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 $150,000.00 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
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
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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 shan be conclusive evidence
of assignment and sale thereof, and, if the Bank so requires, any Invoices the Business may thereafter
send (if any) win 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 controned by the Bank. An
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 Receivables sold to the Bank hereunder,
bnt in the event the Business does, it will receive remittances in trust for the Bank and will remit the
same to the Bank no later than the next banking day. The Business will pay to the Bank any fmance
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 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 10.00% of the Face Amount 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.
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SECTION 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 repurchase all or any portion of
such Receivables from any particular Customer if any minimum payment due on one or more of such
Receivables remains unpaid following 91 days after its due date. With respect to any Receivables
purchased subsequent to the Bank's initial purchase hereunder, the Bank may require the Business to
repurchase an or any portion of such Receivables from any particular Customer if any minimum
payment due on one or more of such Receivables remains unpaid following 91 days after its due date.
For purposes of this Agreement, the aging status of Receivables purchased from the Business as shown
on the aging report of Receivables produced or generated by the Bank will be deemed conclusive
(absent manifest error) in determining which Receivables the Bank may require the Business to
repurchase. Regardless 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 require the Business to
repurchase any or all outstanding Receivables (a) upon a Default, as defmed in Section 8, or (b) upon
the termination of this Agreement. Any decision by the Bank to require repurchase of less than the
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maximum amount pennitted 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 Effecting Repurchase. Should the Bank require repurchase of one or more Receivables,
the Business shall be liable to the Bank for payinent of the Repurchase Obligation with respect to such
Receivables. Upon a Default or termination under this Agreement, the Repurchase Obligation shan also
include the amount of an 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 shortfan on
demand. The Bank shan have no undertaking with respect to the billing or collection of Receivables so
repurchased. After demand, if such Repurchase Obligation is not paid in fun, and if permitted by
applicable law, the Business authorizes any attorney-at-law to appear for the Business in any court of
record in the United States, and to confess judgment for such amount as may appear to be unpaid
thereon, together with any anowable fees for conection of said judgment.
3.3 Security Interest. The Business hereby grants the Bank a security interest in an of its
present and.fufure accounts, instrUments, contract rights, chattel paper, documents and general intangibles
(in each case as defined in the U~iform Commercial Code as in effect in the State whose law governs this
Agreement) and the proceeds thereof, and an returned, repossessed, and reclaimed goods, and related
books and records, to secure all of the Business's Obligations, and agrees to execute appropriate UCC- I
fmancing and other related statements. In addition, the Business grants the Bank a security interest in the
Reserve and in the Reserve Account to secure an 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 documents of similar import (collectively, the "Additional Security
Documents"), terms used therein such as, but not limited to, "loans," "indebtedness," "secured
obligations," and "obligations," shan be deemed to include the Repurchase Obligation as defined herein,
and notwithstanding the provisions of the Additional Security Documents, the Repurchase Obligation
secured thereby shan not constitute a loan.
SECTION 4: REPRESENTATIONS. WARRANTIES AND COVENANTS
4.1 Representations and Warranties. The Business represents and warrants that:
(a) it is fully authorized to enter into this Agreement and to perform hereunder, and that this Agreement
constitutes its legal, valid and binding obligation; (b) the Business is solvent and in good standing in the
State of its organization; (c) it is not the present intent of the Business to seek protection under any
bankruptcy laws; (d) its Receivables are and that they will be at the time of their creation, bona fide and
existing obligations of Customers of the Business arising out of its sales or services, free and clear of all
security interests, liens, and claims whatsoever of third parties; ( e) the documentation under which the
Receivables are payable authorize the payee thereof to charge, collect and receive interest at the rate
provided in such documentation; (f) all Receivables and all documents and practices related thereto
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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 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 encumbranc~ 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 the following financial information, financial records, and documentation on the
Business, any guarantors, or any Customer upon the Bank's request; (a) within thirty (30) days after the
end of each calendar month, fmancial statements of the Business prepared by and certified by the
Business's authorized agent; (b) within ten (10) days after the end of each calendar month, a listing of the
Business's accounts payable and accounts receivable aged from the date of invoice; (c) within one-
hundred twenty (120) days after the end of each fiscal year, financial statements of the Business prepared
by an acceptable independent certified public accountant on a compiled basis; (d) within one-hundred
twenty (120) days after the end of each fiscal year, personal financial statements and personal tax returns
of the individual Guarantors; (e) within one-hundred twenty (120) days after the end of each fiscal year,
financial statements of the corporate Guarantor prepared by an acceptable independent certified public
accountant on a reviewed basis;
(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 Customer's obligation to pay the related Receivable in accordance
with its terms; (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 transa~tions; 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 AND PROCEDURES: RESPONSIBILITY FOR USE
5.1 Forms and Procedures. The Business will use only forms, agreements, and advertising
materials supplied or approved by the Bank in connection with the Receivables and will follow all
procedures that are satisfactory to the Bank in connection with the use of such forms, agreements, and
advertising materials.
5.2 Responsibility. The Business will be solely responsible for the adequacy, completeness
and accuracy of the raw data relating to the Receivables, its preparation in the form required and its
transmission to the Bank, and will indemnifY and hold the Bank, its contractors, and their respective
agents and employees harmless from (and pay all reasonable attorneys' fees with respect to) any claim or
liability sustained by virtue of acting in reliance upon data furnished by the Business. The Business
understands that the form of credit application and agreement and other documentation the Bank supplies
to the Business should be reviewed by the Business's counsel as the Bank makes no representation or
warranty as to their enforceability in the Business's state or their compliance with applicable federal
and state laws. The Bank and the Business agree that the Bank is the owner of all Receivables
purchased by the Bank hereunder, and that all activities of the Bank in connection with the conection of
Receivables, generation of information, and processing of data, is for the account of the Bank's own
affairs; and that the information generated in connection therewith 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 respect to) any loss or claim involving
breach of warranty or representation by the Business and from any loss 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 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.
SECTION 7: APPLICABLE LAW
This Agreement shall be governed by, construed and enforced according to the laws of the
Commonwealth 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
6
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forth in Section 4.l(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.l(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; (1)
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 (I) 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 here from. Nor shall the Bank be liable for any errors of judgment or
mistake of fact when acting as the Business's attorney-in-fact pursuant to Section 6, or liable for delay
in the performance of the 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
7
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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: 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 in connection with the
execution of this Agreement, including expenses incurred in connection with the filing of financing
statements, continuation statements and record searches. All 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 attomeys'
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 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
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 of any such inconsistency. Any 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.
8
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SECTION 12: SPECIAL STIPULATIONS
In the event of default and acceleration as provided above, Business authorizes and empowers
irrevocably, the Prothonotary, Clerk of Court or any Attorney of any court of record to appear for
the Business in such court, in term, or vacation, at any time and confess judgment, jointly and
severally, in favor of Bank with or without the filing of an averment or declaration of default, for
such amount as may appear to be unpaid, all interest due thereon and all reasonable costs incurred
in connection with the collection of such amount, together with an attorney's fee of Five (5%)
percent of the total amount due (but in no event less than Five Hundred ($500.00) Dollars, and the
Business waives and releases any and all errors which may intervene in any such proceedings and
waives all right of appeal and consents to immediate execution upon such judgment. The Business
shall not cause any bill in equity to be filed to interfere in any manner with the operation of such
judgment, hereby ratifying and confirming all the said attorney may do so by virtue hereof. The
authority hereinabove granted shall not be exhausted by one exercise thereof, but judgment may be
confessed aforesaid from time to time and as often as any default shall occur hereunder.
Confession of judgment nay be made by fIling a copy hereof in lieu of the original hereof.
The Business acknowledges that Business understands the meaning and effect of the confession
contained in the foregoing paragraph. Specifically, the Business understands among other things that (1)
Business is relinquishing the right to have notice except as provided herein, an opportunity to be heard
and the right to have the burden of proof of default rest on Bank prior to the entry of judgment, (2) the
entry of judgment may result in a lien on Business's property, (3) Business will bear the burden and
expense of attacking the judgment and challenging execution on the lien and sales of the property covered
thereby, and (4) enough of Business 's property may be taken to pay the principal amount, interest, costs
and attorney's fees.
Bank and Business acknowledge that disputes arising under this Agreement are likely to be
complex and they desire to streamline and miuimize the cost of resolving such disputes. Therefore,
Bank and Business irrevocably waive all rights to a trial by jury in any action, counterclaim,
dispute or proceeding based upon, or related to the subject matter of this Agreement. This waiver
applies to all claims against all parties to such actions and proceedings including those involving
Bank or Bank's parent, affiliates or related entities, or any officer, director, shareholder, member,
attorney or partner of any ofthem. It also applies whcther such dispute or proceeding arises nnder
this Agreement, any other agreement, note, paper, instrument or document heretofore, or hereafter
executed or any other contract, whether similar or dissimilar; and whether or not it arises from
intentional or unintentional conduct, from fraud, other improper action or failure to act, or from
other reasons. This paragraph shall be deemed a covenant and enforceable independently of all
other provisions of this Agreement. This waiver is knowingly, intentionally and voluntarily made
by Business and Business acknowledges that neither the Bank, or any person acting on behalf of the
Bank, has made any representations to induce this waiver of trail by jury or in any way to modify
or nullify its effect. Business further acknowledges that it has been represented (or has had the
opportunity to be represented) in connection with the signing of this Agreement and in the making
of this waiver by independent legal counsel, selected of its own free will, and that it has had the
opportunity to discuss this waiver with counsel. Business further acknowledges that is has read and
understands the meaning and ramifications of this waiver provision.
This Agreement contains Business's waiver of trial by Jury, provides for the remedy of confession of
judgment by Bank and waiver of certain other rights and remedies by Business. In connection therewith,amaker voluntarily and knowingly waives Business's right to a trial by Jury, its right, if any to notice and
to be heard before the entry of confession of judgment, and waives other rights and remedies as set forth
9
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in the Agreement. Business acknowledges that it is represented by counsel and that counsel has reviewed
and explained the meaning of these waivers and remedies to maker.
THE 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.
ATTEST:
BUSINESS:
NEW AGE GAMES, LTD.
A./P/;J;/7rL;1i ISMA-d?X
Secretary
,
By:
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President
ACCEPTANCE:
This Agreement is accepted this
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,1999.
ATfEST:
wr7/VEsJ
BANK:
YO~FWE~SAVWGSNIDLOAN
ASSOCIATION
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Assistltflt 3""1 "[ill Y
By: ~ r ...t:2rf2
Vice President
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VERIFICATION
I verify that the statements made in the foregoing Complaint are true and
correct to the best of my knowledge, information, and belief. I further verify that I
am a Loan Administration Officer of WAYPOINT BANK, F/KlA YORK FEDERAL
SAVINGS AND LOAN ASSOCIATION, and that as such, I am authorized to
make this Verification on its behalf. I understand that false statements herein are
made subject to the penalties of 18 Pa.C.S. 9 4904 relating to unsworn
falsification to authorities.
WAYPOINT BANK, F/KlA
YORK FEDERAL SAVINGS
AND LOAN ASSOCIATION
Date: ()~ ?, i , 2.001
By: d3c:- !~ ~/
Blair E. Ansell
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SHERIFF'S RETURN - REGULAR
CASE NO: 2001-00720 P
COMMONWEALTH OF PENNSYLVANIA:
COUNTY OF CUMBERLAND
WAY POINT BANK ET AL
VS
BARRICK WILLIAM B
CPL. MICHAEL BARRICK
, Sheriff or Deputy Sheriff of
Cumberland County,Pennsylvania, who being duly sworn according to law,
says, the within COMPLAINT TO CONFORM
was served upon
BARRICK WILLIAM B
the
DEFENDANT
, at 0019:45 HOURS, on the 8th day of February, 2001
at 103 BUNGALOW ROAD
ENOLA, PA 17025
by handing to
LAURA LINDSEY (GIRLFRIEND)
a true and attested copy of COMPLAINT TO CONFORM
together with
CONFESSED JUDGMENT
and at the same time directing Her attention to the contents thereof.
She:dff's Costs:
Docketing
Service
Affidavit
Surcharge
18.00
9.30
.00
10.00
.00
37.30
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R. Thomas Kline
02/09/2001
WAYPOINT BANK
Sworn and Subscribed to before
By:
//~2
Deput S 'ff
me this /,2~ day of
d-v&-uu"l 02t'7J I A.D.
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IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY
,
PENNSYLVANIA
CIVIL ACTION
WA YPOINT BANK, F/KlA
YORK FEDERAL SAVINGS
AND LOAN ASSOCIATION
Plaintiff
No. ';;1.06) _ OOI;llD P
vs.
WILLIAM B. BARRICK
Defendant
NOTICE
1iJ..1J'
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 a judgment may be entered against you by
the court without further notice for any money claimed in the complaint 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.
CUMBERLAND COUNTY BAR ASSOCIATION
2 Liberty Avenue
Carlisle, Pennsylvania 17013
Telephone: (717) 249-3166
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IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY,
PENNSYLVANIA
CIVIL ACTION
WA YPOINT BANK, F/K/A
YORK FEDERAL SAVINGS
AND LOAN ASSOCIATION
Plaintiff
No. vb6\_ 66,,),6('"
vs.
WILLIAM B. BARRICK
Defendant
AVISO
USTED HA SIDO DEMANDADO EN LA CORTE. Si usted desea
defenderse de las quejas expuestas en las paginas siguientes, debe tomar
accion dentro de veinte (20) dias a partir de la fecha en que recibio la demanda y
el aviso. Usted debe presentar cQmparecencia escrita en persona 0 por
abogado y presentar en la Corte por escrito sus defensas 0 sus objeciones alas
demandas en su contra.
Se Ie avisa que si no se defiende, el caso puede proceder sin usted y la
corte puede decidir en su contra sin mas aviso 0 notificacion por cualquier
dinero reclamado en la demand a 0 por cualquier otra queja 0 compensacion
reclamados por el Demandante. USTED PUEDE PERDER DINERO, 0
PROPIEDADES U OTROS DERECHOS IMPORTANTES PARA USTED.
LLEVE ESTA DEMANDA A UN ABOGADO INMEDIATAMENTE.
SI USTED NO TIENE 0 NO CONOCE UN ABOGADO, VA Y A 0 LLAME A LA
OFICINA EN LA DIRECCION ESCRITA ABAJO PARA AVERIGUAR DONDE
PUEDE OBTENER ASISTENCIA LEGAL.
CUMBERLAND COUNTY BAR ASSOCIATION
2 Liberty Avenue
Carlisle, Pennsylvania 17013
Telephone: (717) 249-3166
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IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY
,
PENNSYLVANIA
CIVIL ACTION
WA YPOINT BANK, F/K/A
YORK FEDERAL SAVINGS
AND LOAN ASSOCIATION
Plaintiff
No. dQG \ - 661 C).(J f>
VS.
WILLIAM B. BARRICK
Defendant
AMENDED COMPLAINT TO CONFORM
CONFESSED JUDGMENT
Plaintiff, Waypoint Bank, f/kla York Federal Savings and Loan Association,
by his undersigned counsel, files this Complaint pursuant to 41 P.S. 9407 and
Pa. R.C.P. 2983, to conform the judgment confessed in this action, and avers the
following:
1. Plaintiff, Waypoint Bank, f/kla York Federal Savings and Loan
Association (hereinafter "Plaintiff'), is a corporation organized and existing under
the laws of the United States of America, and it is registered to do business in
Pennsylvania, with offices for the purpose of doing business at 449 Eisenhower
Boulevard, Harrisburg, Pennsylvania 17105.
2. Defendant William B. Barrick (hereinafter "Defendant") is an adult
individual who resides at 103 Bungalow Road, Enola, Cumberland County,
Pennsylvania 17025.
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3, On August 10, 1999 Defendant executed a Guaranty for payment
of monies due under the Business Manager Agreement payable to the Plaintiff in
the amount of One Hundred Fifty Thousand and 00/100 Dollars ($150,000.00). A
true and correct copy of the Guaranty and Business Manager Agreement are
attached hereto, incorporated herein and attached as Exhibits A and B,
respectively.
4. On November 29, 2000, Plaintiff caused a judgment by confession
to be entered in the amount of $43,834.90 against the Defendant in the Court of
Common Pleas of Cumberland County as of October 31, 2000, Term, 2000 -
8341.
5. The judgment is a lien on residential property owned by the
Defendant in this County.
6. The following is an itemization of the amount presently due the
Plaintiff from the Defendant:
Principal. . . .. . . . . . . . . . . . . . . . . . . .
$43,834.90
Interest from 11/29/00 through 1/29/01
(inclusive) at $7.21 per diem. . . . . . . .
$ 447.02
$ 2,191.75
$46,473.67
Attorney's fees. . . . . . . . . . . .. ....
Total........................ .
7. The underlying obligation is not a residential mortgage for $50,000
or less and the notice requirement of 41 Pa. Stat. Ann. 9403 does not apply.
8. Notice of the entry of confessed judgement was mailed to
Defendant in accordance with PaRC.P. 236 on November 29,2000.
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WHEREFORE, Plaintiff demands judgment in the sum of Forth Six
Thousand Four Hundred Seventy Three and 67/100 Dollars ($46,473.67) as
authorized by 41 Pa. Cons. Stat. Ann. S 407.
Respectfully submitted,
Benjam' F. Riggs,
Attorney for Plaintiff
P.O. Box 1711
Harrisburg, PA 17105-1711
Phone: (717) 815-4518
I.D. No. 72030
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GUARANTY
KNOW ALL MEN BY THESE PRESENTS, that in order to induce YORK FEDERAL
SAVINGS AND LOAN ASSOCIATION, a federal savings and loan association, With its
principal offices located in the City of York, County ofY ork, Commonwealth of Pennsylvania, (the
"Bank"), to extend credit to or on the account of NEW AGE GAMES, LTD., a Pennsylvania
business corporation (the "Business"), and for other good and valuable consideration, the receipt
and sufficiency of which is hereby acknowledged, and intending to be legally bound hereby, the
undersigned, individually, jointly and severally, directly and unconditionally, do hereby guarantee
to Bank the prompt and full payment and performance of all Business's obligations to Bank, as
required by and defined in the BnsinesslManager Agreement (the "Agreement") of even date
hereWith in the amount of One Hundred Fifty Thonsand ($150,000.00) Dollars, given to Bank by
Business. AI; used in this Guaranty, the term "Loan Documents" means collectively any instrument
or agreement in connection with the Loan as defined in the Agreement.
This Guaranty shall constitute a contract of suretyship under the laws of the Commonwealth
of Pennsylvania. The liability of the undersigned is and shal1 be joint, several, unlimited, absolute,
primary, and continuing, and may be enforced without the necessity of prior resort by Bank to any
other rights, remedies, or securities under the Loan Documents or otherwise.
Without requiring any further consent or any notice, the undersigned assent and agree to all
renewals, extensions or postponements of the time of payment of any of said obligations; to all
compromises, adjustments, indulgences and forbearances; to all changes, additions, substitutions,
exchanges, releases or alterations to any collateral or security; to all provisions of all existing and
future instruments, documents and papers and amendments thereto, as may evidence, contain, give
rise or otherwise relate to any obligations of Bnsiness to Bank and to all things as may be done
pursuant thereto; to the addition or release of any other person or entity, primarily or secondarily
liable; and that the existence, occurrence or doing of any or all of the foregoing shall in no way
impair or diminish the liability of the undersigned to Bank.
The undersigued hereby waive: notice of acceptance of this Guaranty; presentment,
dishonor, demand, protest, and all notices thereof; all notices of any extension or renewals to, and
of any breaches, defaults, acts, omissions, or wrong doings by Business, or others; all notices in
connection with this Guaranty, except as specifically provided herein, or the obligations guaranteed
hereby or any security and of any action taken in reliance thereon; all other notices and demands of
every kind to which the undersigned might otherwise be or become entitled; all diligence by Bank
in the exercise or enforcement of any rights or remedies whatsoever; any and all rights of
indemnification' or other cause of action against Business relating to performance under tlns
Guaranty or the obligations guaranteed hereby; and all suretyship defenses and defenses in the
nature thereof. The undersigned waive and renounce, for themselves, and their families, any and all
homestead and exemption rights which the undersigned, or their families may have under or by
virtue of the Constitution or laws of any State, or the United States, either now or hereafter to be
allowed as against their obligations to Bank by virtue of this Guaranty, or which may be allowed to
Business.
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The undersigned waive all rights of subrogation, repayment, reimbursement, or recoupment,
or any other "claim" (as that term is defined in Section 101 of the United States Banlauptcy Code,
as amended) which the undersigned might otherwise have from or against the Business, the
. Business's property or the Business's bankruptcy estate as a result of the undersigneds' payment or
performance of the obligations. The parties specifically intend the waiver contained in this Section
to confer third-party beneficiary rights upon the Business and its successors and assigns, including
without limitation any debtor in possession or trustee in bankruptcy for the Business's bankruptcy
estate.
The undersigned agree: that nothing shall impair, diminish, discharge, or satisfy their said
liability under this Guaranty except payment and fulfillment of all obligations of Business to Bank;
to save harmless and indemnify Bank from and against any and all loss, damage, and from all
obligations, demands, or liabilities by whomsoever asserted, which are incurred or suffered or paid
by Bank as a result of, or in any way arising out of or following, or consequential to the transactions
evidenced by the Loan Documents between Business and Bank; that all rights and remedies
whatsoever of Bank shall be cumulative; and that all present and future debts, liabilities, and
obligations of Business to the undersigned, fixed or contingent, direct or indirect, secured or
unsecured, and of any kind whatsoever, are hereby subordinated to the present and future
obligations of Business to Bank and are hereby assigned by the undersigned to Bank.
The undersigned assume all responsibility for being and keeping themselves informed of
Business's financial condition and assets, and of all other circumstances bearing upon or relevant to
the risk of nonpayment or nonperformance by Business under the Loan Documents and the nafure,
scope and extent of the risks which the undersigned assume and incur hereunder, and agree that
Bank shall have no duty to advise the undersigned of information known to it regarding such
circumstances or risks.
This Guaranty shall be construed and enforced according to the laws of the Commonwealth
ofPe11l1sylvania.
This Guaranty shall remain in full force and effect until Business has fully satisfied and
performed and paid all sums, obligations, debts and liabilities under the Loan Documents and this
Guaranty.
The within agreements, obligations, undertakings, representations and warranties shall inure
to the benefit of Banlc, its successors and assigns, and shall bind the undersigned and their
successors. This instrument shall talce effect as a sealed instrument.
If any amount due Bank under any of the Loan Documents shall remain unpaid or if
Business is in default under any of the terms of any of the Loan Documents at the expiration of
fifteen (15) days after written notice thereof to the undersigned, then the undersigned hereby
authorizes and empowers irrevocably, the Prothonotary, clerk of court or any attorney of any court
of record to appear for them in such court, in term, or vacation, at any time and confess judgment in
favor of Banlc, jointly and severally, with or without the filing of an averment or declaration of
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default, for such amount as may appear to be unpaid, all interest due thereon and all reasonable
costs incurred in connection with the collection of such amount, together with an attorney's fee of
five (5%) percent of the total unpaid principal indebtedness, interest thereon and all other sums due
Bank by Business, and the undersigned waives and releases any and all errors which may intervene
in any such proceedings and waives all right of appeal and consent to immediate execution upon
such judgment. The undersigned shall not cause any bill in equity to be filed to interfere in any
manner with the operation of such judgment, hereby ratifying and confirming all that said attorney
may do by virtue hereof. The authority hereinabove granted shall not be exhausted by one exercise
thereof, but judgment may be confessed as aforesaid from time to time and as often as any default
shall occur hereunder. Confession of judgment may be made by filing copies of the Loan
Documents and this Guaranty Agreement in lieu of originals thereof.
The undersigned acknowledge that they understand the meaning and effect of the
confession contained in the foregoing paragraph. Specifically, they understand among other things
that (I) they are relinquishing the right to have notice except as provided herein, an opportunity to
be heard and the right to have the burden of proof of default rest on Bank prior to the entry of
judgment, (2) the entry of judgment may result in a lien on their property, (3) they will bear the
burden and expense of attacking the judgment and challenging execution on the lien and sale of the
property covered thereby, and (4) enough of their property may be taken to pay the principal
amount, interest, costs and attorney's fees.
ThI WITNESS WHEREOF, the undersigned intending to be legally bound hereby, have
hereunto set their hands and seals this 10 day of Ick., oS? , 1999.
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WITNESS:
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JrJ;Jl!t/IAlL 60 6c2k11~J(
. William B. Barrick
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THE BUSINESSIMANAGER@AGREEMENT
WITH BUSINESSES AND PROFESSIONALS
TO: York Federal Savings and Loan Association
101 South George Street, P. O. Box 15068
York, PA 17405-7068
(the "Bank")
FROM: New Age Garnes, Ltd.
1302 Slate Hill Road
Camp Hill, PA 17011
(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 or services to Customers and purchased by the Bank
pursuant to the Bank's BUSINESSIMANA GER plan.
SECTION 1: DEFINITIONS
1.1 "Credit Application and A2reement" means a Credit Application and Agreement
executed by a Customer and any other agreement or documentation that governs the terms and disclosures
relating to a Receivable.
1.2 "Credit Memo" means a form reflecting a credit, other than a credit arising from a
payment, to a Customer's account with the Business.
1.3 "Customer" means a debtor obligated on one or more Receivables which arose from
goods the Business sold or services it rendered to the Customer.
1.4 "Face Amount" of a Receivable means on any date the outstanding balance of such
Receivable (after taking into account, without duplication, all payments, returns, credits, or allowances of
any nature at any time issued, owing, granted or outstanding), plus any taxes imposed in connection with
such Receivable.
1.5 "Invoice" means an invoice or similar evidence (whether in written or electronic form)
of the terms of a non-cash sale of goods or provision of services previously made by the Business to a
Customer.
1.6
Charge.
"Net Amount" of a Receivable means the Face Amount of a Receivable less the Service
1.7 "Oblij!;ations" means all of the Business's obligations to the Bank, whether pursuant to
this Agreement, under any note, contract, guaranty, accommodation or otherwise however and whenever
created, arising or evidenced, whether direct or indirect, absolute or contingent, now or hereafter existing
or due.
1.8 "Receivables" means all accounts, instruments, contract rights, chattel paper.
documents, and general intangibles arising 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.
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1.9 "Repurchase Oblillation" means the liability of the Business to the Bank under 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.
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.
1.11 "Service Charge" means a discount equal to three and 81/100 percent (3.81 %) 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 $150,000.00 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
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
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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 BilIinj(. 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 Receivables sold to the Bank hereunder,
but in the event the Business does, it will receive remittances in trust for the Bank and will 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 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 10.00% of the Face Amount 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: 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 repurchase all or any portion of
such Receivables from any particular Customer if any minimum payment due on one or more of such
Receivables remains unpaid following 91 days after its due 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 any portion of such Receivables from any particular Customer if any minimum
payment due on one or more of such Receivables remains unpaid following 91 days after its due date.
For purposes of this Agreement, the aging status of Receivables purchased from the Business as shown
on the aging report of Receivables produced or generated by the Bank will be deemed conclusive
(absent manifest error) in detennining which Receivables the Bank may require the Business to
repurchase. Regardless 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 require the Business to
repurchase any or all outstanding Receivables (a) upon a Default, as defmed in Section 8, or (b) upon
the termination of this Agreement. Any decision by the Bank to require repurchase of less than the
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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 Effecting Repurchase. Should the Bank require repurchase of one or more 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 pennitted by
applicable law, the Business authorizes any attorney-at-law to appear for the Business in any court of
record in the United States, and to confess judgment for such amount 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 Banlc 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- I
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 OT other party executes additional security agreements, pledge
agreements, guaranties and documents of similar 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.
SECTION 4: REPRESENTATIONS. WARRANTIES AND COVENANTS
4.1 Representations and Warranties. The Business represents and warrants that:
(a) it is fully authorized to enter into this Agreement and to perform hereunder, and that this Agreement
constitutes its legal, valid and binding obligation; (b) the Business is solvent and in good standing in the
State of its organization; ( c) it is not the present intent of the Business to seek protection under any
banlauptcy laws; (d) its Receivables are and that they will be at the time of their creation, bona fide and
existing obligations of Customers of the Business arising out of its sales or services, free and clear of all
security interests, liens, and claims whatsoever of third parties; ( e) the documentation under which the
Receivables are payable authorize the payee thereof to charge, collect and receive interest at the rate
provided in such documentation; (f) all Receivables and all documents and practices related thereto
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comply with all applicable federal and state laws; (g) the Receivables wili be paid by Customers prior to
the date of required 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 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 the following financial information, financial records, and documentation on the
Business, any guarantors, or any Customer upon the Bank's request; (a) within thirty (30) days after the
end of each calendar month, fmancial statements of the Business prepared by and certified by the
Business's authorized agent; (b) within ten (10) days after the end of each calendar month, a listing of the
Business's accounts payable and accounts receivable aged from the date of invoice; (c) within one-
hundred twenty (120) days after the end of each fiscal year, financial statements of the Business prepared
by an acceptable independent certified public accountant on a compiled basis; (d) within one-hundred
twenty (120) days after the end of each fiscal year, personal financial statements and personal tax returns
of the individual Guarantors; (e) within one-hundred twenty (120) days after the end of each fiscal year,
financial statements of the corporate Guarantor prepared by an acceptable independent certified public
accountant on a reviewed basis;
(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 Customer's obligation to pay the related Receivable in accordance
with its terms; (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 an 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 AND PROCEDURES: RESPONSffilLITY FOR USE
5.1 Forms and Procedures. The Business will use only forms, agreements, and advertising
materials supplied or approved by the Bank in connection with the Receivables and will follow all
procedures that are satisfactory to the Bani, in connection with the use of such forms, agreements, and
advertising materials.
5.2 Responsibility. The Business will be solely responsible for the adequacy, completeness
and accuracy of the raw data relating to the Receivables, its preparation in the fonn required and its
transmission to the Bank, and will indemnify and hold the Bank, its contractors, and their respective
agents and employees harmless from (and pay all reasonable attorneys' fees with respect to) any claim or
liability sustained by virtue of acting in reliance upon data furnished by the Business. The Business
understands that the form of credit application and agreement and other documentation the Bank supplies
to the Business should be reviewed by the Business's counsel as the Bank makes no representation or
warranty as to their enforceability in the Business's state or their compliance with applicable federal
and state laws< The Bank and the Business agree that the Bank is the owner of all Receivables
purchased by the Bank hereunder, and that all activities of the Bank in connection with the collection of
Receivables, generation of information, and processing of data, is for the account of the Bank's own
affairs; and that the information generated in connection therewith 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 respect to) any loss or claim involving
breach of warranty or representation by the Business and from any loss 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 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.
SECTION 7: APPLICABLE LAW
This Agreement shall be governed by, construed and enforced according to the laws of the
Commonwealth 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
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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 banlauptcy 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; (1)
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 (I) 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 Banl,'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 here from. Nor shall the Bank be liable for any errors of judgment or
mistake of fact when acting as the Business's attorney-in-fact pursuant to Section 6, or liable for delay
in the performance of the 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
7
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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 Banlc.
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: 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 in connection with the
execution of this Agreement, including expenses incurred in connection with the filing of financing
statements, continuation statements arid record searches. All 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 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 Banlc, and then only to the
extent therein stated. Should any provision ofthis 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 defme 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
BusinessIManager 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 sigued 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 of any such inconsistency. Any 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.
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SECTION 12: SPECIAL STIPULATIONS
In the event of default and acceleration as provided above, Business authorizes and empowers
irrevocably, the Prothonotary, Clerk of Court or any Attorney of any court of record to appear for
the Business in such court, in term, or vacation, at any time and confess judgment, jointly and
severally, in favor of Bank with or without the filing of an averment or declaration of default, for
such amount as may appear to be unpaid, all interest due thereon and all reasonable costs incurred
in connection with the collection of such amount, together with an attorney's fee of Five (5%)
percent of the total amount due (but in no event less than Five Hundred ($500.00) Dollars, and the
Business waives and releases any and all errors which may intervene in any such proceedings and
waives all right of appeal and consents to immediate execution upon such judgment. The Business
shall not cause any bill in equity to be filed to interfere in any manner with the operation of such
judgment, hereby ratifYing and contlrming all the said attorney may do so by virtue hereof. The
authority hereinabove granted shall not be exhausted by one exercise thereof, but judgment may be
confessed aforesaid from time to time and as often as any default shall occur hereunder.
Confession of judgment nay be made by fIling a copy hereof in lieu of the original hereof.
The Business acknowledges that Business understands the meaning and effect of the confession
contained in the foregoing paragraph. Specifically, the Business understands among other things that (1)
Business is relinquishing the right to have notice except as provided herein, an opportunity to be heard
and the right to have the burden of proof of default rest on Bank prior to the entry of judgment, (2) the
entry of judgment may result in a lien on Business's property, (3) Business will bear the burden and
expense of attacking the judgment and challenging execution on the lien and sales of the property covered
thereby, and (4) enough of Business 's property may be taken to pay the principal amount, interest, costs
and attorney's fees.
Bank and Business acknowledge that disputes arising under this Agreement are likely to be
complex and they desire to streamline and minimize the cost of resolving such disputes. Therefore,
Bank and Business irrevocably waive all rights to a trial by jury in any action, counterclaim,
dispute or proceeding based upon, or related to the subject matter of this Agreement. This waiver
applies to all claims against all parties to such actions and proceedings including those involving
Bank or Bank's parent, affiliates or related entities, or any officer, director, shareholder, member,
attorney or partuer of any of them. It also applies whether such dispute or proceeding arises under
this Agreement, any other agreement, note, paper, instrument or document heretofore, or hereafter
executed or any other contract, whether similar or dissimilar; and whether or not it arises from
intentional or unintentional conduct, from fraud, other improper action or failure to act, or from
other reasons. This paragraph shall be deemed a covenant and enforceable independently of all
other provisions of this Agreement. This waiver is knowingly, intentionally and voluntarily made
by Business and Business acknowledges that neither the Bank, or any person acting on behalf of the
Bank, has made any representations to induce this waiver of trail by jury or in any way to modify
or nullify its effect. Business further acknowledges that it has been represented (or has had the
opportunity to be represented) in connection with the signing of this Agreement and in the making
of this waiver by independent legal counsel, selected of its own free will, and that it has had the
opportunity to discuss this waiver with counsel. Business further acknowledges that is has read and
understands the meaning and ramifications of this waiver provision.
This Agreement contains Business's waiver of trial by Jury, provides for the remedy of confession of
judgment by Bank and waiver of certain other rights and remedies by Business. In connection therewith,
maker voluntarily and knowingly waives Business's right to a trial by Jury, its right, if any to notice and
to be heard before the entry of corifession of judgment, and waives other rights and remedies as set forth
9
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in the Agreement. Business acknowledges that it is represented by counsel and that counsel has reviewed
and explained the meaning of these waivers and remedies to maker.
THE 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.
ATTEST:
BUSINESS:
NEW AGE GAMES, LTD.
/J~6/;/Jf0 Ii &AA/fV{
Secretary
,
By:
/J - /77t/>>1-<J~
President
ACCEPTANCE:
A . dthi ,/,It d f /J ./.1 L
This greement IS accepte s " v ay 0 ,/'TV) v", ~
,1999.
ATfeSI:
WT7/VE$1'
BANK:
YORK FEDERAL SAVINGS AND LOAN
ASSOCIATION
'~/n~
Assist!tIl:t Scw::litiy'
BY:~~
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Vice President
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VERIFICATION
I verify that the statements made in the foregoing Complaint are true and
correct to the best of my knowledge, information, and belief. I further verify that I
am a Senior Vice President of WAYPOINT BANK, and that as such, I am
authorized to make this Verification on its behalf. I understand that false
statements herein are made subject to the penalties of 18 Pa.C.S. S 4904
relating to unsworn falsification to authorities.
Date:
By:
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SHERIFF'S RETURN - REGULAR
CASE NO: 2001-00720 P
COMMONWEALTH OF PENNSYLVANIA:
COUNTY OF CUMBERLAND
WAY POINT BANK ET AL
VS
BARRICK WILLIAM B
SHAWN HARRISON
, Sheriff or Deputy Sheriff of
Cumberland County,pennsylvania, who being duly sworn according to law,
says, the within COMPLAINT & NOTICE
was served upon
BARRICK WILLIAM B
the
DEFENDANT
, at 0016:49 HOURS, on the 26th day of February, 2001
at 103 BUNGALOW ROAD
ENOLA, PA 17025
by handing to
WILLIAM BARRICK
a true and attested copy of COMPLAINT & NOTICE
together with
and at the same time directing His attention to the contents thereof.
Sheriff's Costs:
Docketing
Service
Affidavit
Surcharge
So Answers:
18.00
9.30
.00
10.00
.00
37.30
~~I'"~t:~.~
R. Thomas Kline
02/28/2001
WAYPOINT BANK
Sworn and Subscribed to before By:
me this d~
day of
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othonotary
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IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA
ACTION - - MORTGAGE FORECLOSURE
WAYPOINT BANK, F/KlA
YORK FEDERAL SAVINGS
AND LOAN ASSOCIATION
Plaintiff
No.: 2001-00720P
vs.
WILLIAM B. BARRICK
Defendant
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that on March 19, 2001 10-day Default Notices in the above-captioned
matter were mailed to the Defendant William B. Barrick, by regular mail, postage prepaid. True and
correct copies of the 10-day Default Notices are attached hereto and incorporated herein by
reference.
Be"j=;~,~
(I.D. #72030)
Attorney for Plaintiff
P.O. Box 1711
Harrisburg, PA 17105-1711
Telephone: (717) 815-4518
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IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA
ACTION - - MORTGAGE FORECLOSURE
WAYPOINT BANK, F/KlA
YORK FEDERAL SAVINGS
AND LOAN ASSOCIATION
Plaintiff
No. : 2001-00720P
vs.
WILLIAM B. BARRICK
Defendant
TO: William B. Barrick
. 103 BungaloWRbaa
Enola, PA 17025
DATE OF NOTICE: March 19, 2001
IMPORTANT NOTICE
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
YOlJ WITHOUT A HEARING AND YOU MAY LOSE YOUR PROPERTY 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 FOLLOWING OFFICE TO
FIND OUT WHERE YOU CAN GET LEGAL HELP.
COURT ADMINISTRATOR
Fourth Floor
Cumberland County Court House
Courthouse Square
Carlisle, PA 17013
Te~PhO"e!;;Jr~~
Benjamin F. iggs, Jr. ~
(I.D. #72030)
Attorney for Plaintiff
P.O. Box 1711
Harrisburg, PA 17105-1711
Telephone: (717) 815-4518
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IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY,
PENNSYLVANIA
ACTION - - MORTGAGE FORECLOSURE
WAYPOINT BANK, F/KlA
YORK FEDERAL SAVINGS
AND LOAN ASSOCIATION
Plaintiff
vs.
No: 2001-00720P
WILLIAM B. BARRICK
Defendant
PRAECIPE TO DISMISS
Please dismiss the above-captioned matter without prejudice.
",J.el71
Attorney for Plaintiff
Waypoint Bank, f/kla
York Federal Savings
and Loan Association
P.O. Box 1711
Harrisburg, PA 17105-1711
(717) 812-4518
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