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HomeMy WebLinkAbout03-2995TAYLOR-WHARTON GAS EQUIPMENT, A DIVISION OF HARSCO CORPORATION, Plaintiff VS. IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION-LAW : NO. 03 - CENTENNIAL PROPANE : CORPORATION AND KAREN SUE : QUERY, : Defendants : NOTICE 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 have been served. To defend against the aforementioned claims, a written appearance stating your defenses and objections must be entered and filed in writing by you, the defendant, or by an attorney. You are warned that if you fail to take action against these claims, the court may proceed without you and a judgement for any money claimed in the complaint or for any other claim required by the plaintiff may be entered against you by the court without further notice. You may lose money, 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, PA. 17013 -- (717) 249-3166 (800) 990-9108 NOTICIA Le hah demandado a usted en la corte. Si usted quiere defenderse de estas damandas expuastas en las paginas siguientes, usted tiene viente (20) dias de plazo al partir de la fecha de ia demanda y la notificacion. Usted debe presentar una apariencia escrita oen persona o por abogado y archivar en la corte en forma escrita sus defensas o sus objeciones a las demandas en contra de su persona. Sea avisado que si usted no se defiende, la corte tomara medidas y puede entrar una orden contra usted sin previo aviso o notificacion y por cualquier queja o alivio que es pedido en la peticion de demanda. Usted puede perrier dinero o sus propiedades o otros derechos impodantes para usted. LLEVE ESTA DEMANDA A UN ABODAGO IMMEDIATAMENTE. SI NO TIENNE ABOGAO O SI NO TIENE EL DINERO SUFICIENTE DE PAGAR TAL SERVlCIO, VAYA EN PERSONA O LLAME POR TELEFONE A LA OFICINA CUYA DIRECCION SE ENCUENTRA ESCRIDA ABA JO PARA AVERIGUAR DONDE SE PUEDE CONSEGUIR ASSISTENClA LEGAL: Cumberland County Bar Association 2 Liberty Avenue Carlisle, PA. 17013 -- (717) 249-3166 (800) 990-9108 TAYLOR-WHARTON GAS EQUIPMENT, A DIVISION OF HARSCO CORPORATION, Plaintiff VS. CENT~.'NNIAL PROPANE CORPORATION AND KAREN SUE QUERY, Defendants IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION-LAW NO. COMPLAINT 1. The Plaintiff is Taylor-Wharton Gas Equipment, a division of HARSCO Corporation, a corporation organized and existing under the laws of the state of Delaware, with an address of 4718 Old Gettysburg Road, Suite 300, P.O. Box 8870, Camp Hill, Cumberland, PA 17001-8870. 2. The Defendant Centennial Propane Corporation is a corporation organized and existing under the laws of the state of Colorado, with an address of 1416 Park Street, Suite A, P.O. Box 927, Castle Rock, Colorado 80104. 3. The Defendant Karen Sue Query is an adult individual with a current address of 1416 Park Street, Suite A, P.O. Box 927, Castle Rock, Colorado 80104. COUNT I HARSCO CORPORATION V. CENTENNIAL PROPANE CORPORATION 4. On or about May 16, 1997, the Defendant entered into a Commercial Note pursuant to which it agreed to pay to the Plaintiff the sum of $16,808.16, in 59 consecutive installments of $367.55, commencing 30 days from the date of shipment of equipment separately purchased by Defendant until paid in full. A copy of the Note with all the terms is attached hereto and made a part hereof as Exhibit "A". 5. The equipment referenced in the Note was shipped on or about May 29, 1997, making the first payment due 30 days thereafter. 6. The Defendant is presently in default on its payments on the Note. 7. There is presently due and owing to the Plaintiff by the Defendant the sum of $8,455.95 representing the unpaid balance on the Note. 8. On or about September 5, 1996, the Defendant entered into a Comrnerciai Note pursuant to which it agreed to pay the Plaintiff the stu~n of $17,681.40 in 59 consecutive installments of $384.44, commencing 30 days from the date of shipment of equipment separately purchased by Defendant until paid in full. A copy of the Note and with all the terms is attached hereto and made a par~ hereof as Exhibit "B". 9. The equipment referenced in the Note was shipped on or about September 11, 1996, making the first payment due 30 days thereafter. 10. The Defendant is presently in default on its payments on Note. 11. There is presently due and owing to the Plaintiff the sum of $2,304.21 representing the unpaid balance on the Note. 12. On or about December 13, 1995, the Defendant entered into a Commercial Note pursuant to which is agreed to pay the Plaintiff the sum of $34,335.85 in 59 consecutive installments of $746.54 commencing 30 days from the date of shipment of equipment separately purchased by Defendant until paid in full. A copy of the Note with ail the terms is attached hereto and made a part hereof as Exhibit "C". 13. The equipment referenced in the Note was shipped on or about December 14, 1995, making the first payment due 30 days thereafter. 14. The Defendant is presently in default on its payments on Note. 15. There is presently due and owing to the Plaintiff by the Defendant the sum of $2,384.55 representing the unpaid balance on the aforesaid Note. 16. On or about May 8, 1996, the Defendant entered into a Commercial Note pursuant to which it agreed to pay the Plaintiff the sum of $16,306.18 in 59 consecutive inst~!lruents of $354.54 commencing 30 days from the date of shipment of equipment separately purchased by the Defendant until paid in full. A copy of the Note with all the terms is attached hereto and made a part hereof as Exhibit "D". 17. The equipment referenced in the Note was shipped on or about May 8, 1996, making the first payment due 30 days thereafter. 18. The Defendant is presently in default on its payments on Note. 19. There is presently due and owing to the Plaintiff by the Defendant the amount of $1,218.81. 20. The total amount due under all four transactions is $14,363.52. 21. Pursuant to the terms of ail of the aforementioned Notes, the Defendant is responsible for the payment of ail costs and expenses, including reasonable attorneys fees and disbursements, which may be incurred by Plaintiff in the collection of the Notes with the enforcement of the company's rights and remedies thereunder. 22. Plaintiff has made demand upon the Defendant for the full amount of the above Note obligations and open account balance, yet despite demand, the Defendant has failed to and/or refused to make payments as aforesaid. COUNT HARSCO CORPORATION V. KAREN SUE QUERY 23. Paragraphs 1 through 22 are hereby incorporated by reference as if set forth at length. 24. Concurrent with the obligation set forth above, the individual Defendant, Karen Sue Query, executed a personal Guaranty Contract in which she agreed that in the event the amounts due under the contract between Plaintiff and Defendant Centennial Propane Corporation would not be pa~d, she would personally guarantee the payment of the same. A copy of the Contract is attached hereto and made a part hereof as Exhibit "E" 25. Pursuant to the aforementioned Guaranties, the individual Defendants are liable over to the Plaintiff for the amounts due as set forth in paragraphs 20 and 21 above. WHEREFORE, Plaintiff requests this Honorable Court to enter Judgment in favor of the Plaintiff and against the Defendants, jointly and separately, in the amount of $14,363.52 as of March 1, 2003, plus continuing interest at the contract rates on each of the aforementioned Notes, plus reasonable attorney's fees and costs of suit. Respectfully submitted, P~ER BY I.D,f #29955 .~1~19 North Front Street ~ Harrisburg, PA 17102 (717) 234-4178 S 16,808.16 May 16, 1997 Exhibit FOR VALUE RECEIVED. each of the undersigned, jointly and severally if more than one Ihereinaf~er collectively referred to as "Borrower"), promises to pay to the order of HARSCO CORPORATION (the "Company"), at its offices at 4718 Old Gettysburg Road. 17055. P.O. Box 8870, Camp Hill. Pennsylvania 17001- 8870. the principal amount of Sixteen Thousand Eight Hundred Eight and 16/100 DOLLARS. in lawful money, of the United States. plus interest, to be paid as follows: said principal plus interest shall be payable in 59 Consocuuve equal monthly insuillments of principal and interest, each in the amount of $367,55 commencing 30 days from the date of shipment of Equipment and on the same day of the month each month therealter, each of which installments shall be applied first to the payment of accrued and unpaid interest and then to the payment of principal and a final installment in an amount which is necessary to pay in fall all of the outsW~nding principal plus accrued and unpaid interest on this Note on the date of the final payment Interest shall accrue at the rate of 11.25% per annum. Payments will be applied as aforesaid on the date received. AI~DITIONAL TERMS OF THIS NOTE - Each of the following provisions shall apply to this Note. to any extension or modification hereof and to the indebtextness exddenced hereby, except as otherwise ex~pressly sUited above or ia a separate writing signed by Company and Borrower. INDEBTEDNESS - This Note evidences the indebtedness of Borrower in connection with the sale of Equipment sold by Company to Borrower. INTgREST- Interest shall be calculated on the basis of a 360-<tay year and shall be charged for the actual n,,mber of days elapsed. Accrued interest shall be payable monthly. Accrued interest shall also be payable when the entire principal balance of this Note becomes due and payable (whether by demand, stated maturity or acceleration) or, if earlier, when such principal balance is actually paid to Company. Interest shall accrue from the date sh/pment of Equipment is made by Company, provided, however, that to the extent th/s Note represents a replacement. substitution, renewal or refinancing of e:cisting indebtedness, interest shall accrue from the date hereof. Inter~ shall accrue on the unpaid balance hereof at the rate provided for in this Note until the entire unpaid balance has been Paid in full, notwithstanding the entry of any judgment against Borrower. PREPAYMEN~ - Borrower may at its option prrpay all or any portion of the principal balance of this Note wiflmut ?re:mum or penalty. Prepayments shall be. applied to ~cheduied ins,ailments of principal in the inverse order of their maturity, shall be accompanied by payment of accrued interest on the ptin/'ipal amount being prePmd and, unless this Note has been accelerated by Company shall not be permitted in an amount less than the scheduled principal inslallmant prior to final maturity of the outstanding prmcipal balance. COLLATERAL - This Note and the indebtedness evidenced hereby shall be secured by any lien or security interest evidenced by a writing (whether now existing or hereafter executed) which contains a provision to the effec~ that such lien or seeanty interest is intended to secure this Note or indebtedness evidenced hereby. EVENTS OF I~EFAULT - Each of the following shall be an Event of Default hereunder: (al the nonpayment when due of any amount payable under this Note or under any obligation or indebtedness to Cmnpany of Borrower or any person hable, either absolutely or contingently, for payment of any indebtedness evidenced hereby, including endorsers, guatatuors and sureties (each such person is referred to as an "Obligor"); (b) if Borrower or any Obligor has failed to obsetwe or perform any oth~:r existing or future agreement with Company of any nature whatsoever; (c) if any representation, warrant)', certificate, financial statement or other information made or given by Borrower or any Obligor to Company is materially incorrect or misleading; (d) if Borrower or any Obligor shall become insolvent or make an assignment for the benefit of creditors or if any petition shall be filed by or against Borrower or any Obligor under any bankrupt~ insolven~ law: (el the entry, of any judgment against Borrower or any Obligor which remains unsatistied for 15 days or thc issuance of any attachment, tax lien. lex?* or garuishraent against any property of material value in which Borrower or any Obligor has an interest: (fl if any attachment. I¢~?. garmshment or similar legal process is served upon Company as a result of any claim agamst Borrower or any Obligor or agamst any property of Borrower or any Obligor: (gl the dissolution, merger, consolidation or change in control (as control is defined in Rule 12b-2 under the Securities Exchange Act of 1934L of any Borrower which is a corporation or partnership, or the sale or transfer of any substantial pelion of any of Borrower's assets. or finny agr~:ment for such dissolution, merger, or consolidation, change in control, sale or transfer is entered into by Borrower. without the written consent of Company: lb) the death of any Borrower or Obligor who is a natural person; (il if Company determines reasonably and in goc~t faith that an event has occurred or a condition exists which has had, or is likely to have. a material adverse effect on the financial condition or creditwomhiness of Borrower or any Obligor. or on the ability nf Borrower or any Obligor to per,btm its obligation evidenced by. this depository., any asuoant collected or withheld from any employee of Borrower lbr payroll taxes. Social Securi .ty pa.vments or similar pay'roll deducUuns: (k) if any Obligor shall attempt to terminate or disclaim such Obligor's liability, for the indebtedness eVidenced by this Note: (l) if Company shall reasonably and in good faith deterrmne and notify Borrower that any collateral for this Note or for the indebtedness evidenced hereby is insufficient as to qnality and quantity; (m) ff Borrower shall fail to pay when due any material indebtedness tbr ~orrowed money. other than to Company: or (n) if Borrower shall be notified of the failure of Borrower or any Obligor to provide financial and other information promptly when reasonably requested by Company. COMPANY'S REMEI)IE$ - Upon occurrence of one or more Events of Default. unless Company elects otherwise, the entire unpaid balance of this Note and all accrued interest shall be immediately due and payable without notice to Borrower or any Obligor, :md Company may. immediately or at any time thereafter, exercise any or all of it~ rights and remedies hereunder or under any agreement or otherwise under applicable law against Borrower. any Obligor and any collateral. Company may exercise its rights and remedies in any order and may, at its option~ delay in or refrain from exercising some or all of its rights and remedies without prejudice thereto. If Borrower fails to make any pa,Vment when due hereunder, Borrower shall pay Company a se.wice charge of five percent (5%) of such delinquent amount plus interest thereon from the due date thereof until paid at the rate sot forth above. NOTICE TO BORROWER - Any notice required to be given by Company under the provisions of this Note shall be effective as m each Borrower and each Obligor when addressed to Borrower and deposited in the maik postage 9repald, for delivery, by first class mail at Borrower's mailing address as it appears on Company's records. PAYMENTS - All payments due under this Note are to be made in immediately available funds. If Company ~ payment in any other form, such payment shall not he deemed to have beton made until the funds comprising such payment have actually been received by or made available to Company. PAYMENT OF COSTS - In addition to the principal and interest payable hereunder. Borrower agrees to pay Company, on demand, all costs and expenses (including reasonable attorney's fees and disbursements) which may be incurred by Company in the collection of this Note or the enforcement of Company's rights and remedie$,~ hereunder. REPRESENTATIONS BY BORROWER - [f Borrower is a corporation or limited partnership. Borrower repre~ts warrants that it is validly existing and in good standing in the jurisdiction under whose laws it was or~ Borrower is a corporation, Borrower represents and warrunts that the execution, delivery and pefformunet:~"~ Note are within Borrower's corporate powers, have been duly authorized by all necessa~ action by Borrower's Board of directors, and are not in contravention of the terms of Borrower's cha/'ter, by-laws, or any ~solution of its Board of Directors. Ii'Borrower is a general or limited partnership, Borrower represents and warrants that tl~ execution, delivery and performance of this Note have been duly authorized and are not in conflict with any provision of BO~'s partnership ag~ement or certificate of limited partnership. Borrower further and warrants that this Note has been validly executed and is enforceable in accordance with its terms, that the execution, delivery and performance by Borrower of this Note are not in contravention of law and do not conflict with any indenture, agreement or undertaking to which Borrower is a party, or is otherwise bound, and that no consent or approval of any governmental authori~ or any third part3.' is required in connecuon with the execution. deliver2,,' and performance of this Note. WAIVER~ ETC. - Borrower and each Obligor waive presentment, dishonor, notice of dishonor, protest and notice of protest. Neither the failure nor any delay on the pan of Company to exercise any right, remedy, power or privilege hereunder shall operate as a waiver or modification thereof. No consent, waiver or modification of the terra, of this Note shall bo effeCnve unless set forth in a writing signed by Company. All rights and remedies of Comtmny are cumulative and concurrent and no single or partial exercise of any power or privilege shall preclude any other further exercise of any right, power or privilege. MISCELLA~NEOUS - This Note is the unconditional obligation of Borrov, er. and [~orrower agrees that Company shall not be required to exercise any of its rights or remedies against any collateral in which it holds a lien or security interest or against which it has a right of setoff or against any particular Obligor. All representation, warranties and agreements herein are made jointly and severally by each Borrower. if any provision of this Note shall I~ held invalid or unenforceable, such validity or unenforceabiliD' shall not affect any other provision hereof To the extent that this Note represents a replacement, substitution, renewal or refinancing of a pre-existing note or other evidence of indebtedness, the indebtedness represented by such pre.existing note or other instrument shall not bo deemed to have beer~ extmgmshed hereby This Note has been delivered in and shall be governed by and construed in accordsnc~ with me laws of the Commonwealth of Pennsylvania without regard to the lag' conflicts. This Note shall be binding upon each Borrower and each Obligor and upon their personal reprcsentatrves, heirs, successors :md assigns, and shall benefit Comt~anv and its successors and assigns XSSIGNMENT BY COMPANY - Company may assign or ~ransfer. and IBorroxser hereby consents to the assignment or transfer, of Company's interest m this Note wilhout notice to Borrower. Borrower agrees that tile iiab~ii _fy of Borrov~r to any assignee of Company or any subsequent assignee of such assignee, shall be absolute and unconditional. CONSENT TO JURISDICTION .~aND VENUE - tN ANY LEGAL PROCEEDING INVOLVING. DIRECTLY OR INDIRECTLY. ANY MATTER ARISING OUT OF OR RELATED TO Tills NOTE OR TIlE RELATIONSIIlP EVIDENCED IIEREBY, EACII UNDERSIGNED PARTY HEREBY IRREVOCABLY SUBMITS TO TIlE NONEXCLU$1VE JURISDICTION OF ANY STATE OR FEDERAL COURT LOCATED IN ~a~ COUNTY OF TIlE COMMONWEALTII OF PENNSYLVANIA WHERE COMPANY MAINTAINS AN OFFICE &ND AGREF,~ NOT TO RAISE ANY OBJECTION TO SUCtl JURISDICTION OR TO TIlE LAYING OR MAINTAINING OF THE VENUE OF ANY SUCH PROCEEDING IN SUCH COUNTY. EACII UNDERSIGNED PARTY AGREES TItAT SERVICE OF PROCESS IN ANY SUCH PROCEEDING MAY BE DULY EFFECTED UPON IT BY MAILING A COPY FHEREOF, BY REGISTERED MAIL, POSTAGE PREPAID, 'ro EACtl UNDERSIGNED PARTY. WAIVER OF JURY TRIAL - EACH UNDERSIGNED PARTY IIEREBY WAIVES AND COMPANY BY ITS ACCEPTANCE HEREOF THEREBY WAIVES, TRIAL BY JURY IN ANY LEGAL PROCEEDING INVOLVING. DIRECTLY OR INDIRECTLY, ANY MATTER (WHETHER SOUNDING IN TORT. CONTRACT OR OTI1ERWISE) IN ANV WAY ARISING OUT OF OR RELATED TO THIS NOTE OR THE RELATIONSItlP EVIDENCED tlEREBY. TIllS PROVISION IS A MATERIAL INDUCEMENT FOR COMPANY TO ENTER INTO, ACCEPT OR RELY L'PON Tills NOTE. IN WITNESS WHEREOF, Bo'-rower. intending this to be a sealed instrument and intending to ~ legally bound hereby, has executed and delivered this Note as of the day and year first above Corporation or Partnership: (Print name and title) Karen S. Query, President (Print name and title) I~dividual: Witness (Print name of Witness) Print name of Borroxver) (Print name of Witness) /Print name of Borrower) $17,681.40 CO~RCIAL ~NOTE September S, 1~96 Exhibit FOR VALUE RECEIVED, each of the tmdersigncd, jointly and severally ffmore thnn one (hereina~er collectively referred to as "Borrower"), promises to pay to the order of HAR.SCO CORPORATION (the "Company"), at its offices at 1011 Mumma Road, P.O. Box 8870, Camp Hill, Penmylvanla 17001-8870, the principal amount of Seventeen Thousand Six Hundred Eighty=one and 40/100 DOLLARS, in lawful money of the United States, plus interest, to be paid as follows: said F~'~ucipal plus interest ~hall be payable in 59 ~ve equal monthly installments of principal and interest, each in the amount of $384.44 commencing 30 days flora the date of shipment of Equipment and on the same day of the month each month therea~er, each of which installments shall be appl/ed i'u'st to the payment of accrued and unpaid interest and then to the payment of principal and a final installment in an amount which is necessary to pay in full ali of the outstanding principal plus accrued and unpaid interest on this Note on the date of the final payment. Interest shall accrue at the rate of 11.0% per annum. Payments will be applied as aforesaid on the date received. ADDITIONAL TEI~'~LS OF TFiL5 NOTE - Each of the following provisions shall apply to this Note, to any extension or modification hereof and to the indebtedness evidenced hereby, except as otherwise expressly stated above or in a separate wndng signed by Company and Borrower. INDEBTEDNESS = This Note evidences thc indebtedness of Borrower in connection with thc sale of Equipment sold by Company to Borrower. INTERF. ST - Interest shaU be calculated on thc basis of a 360-day year and shall be charged for the actual oumh~' of days elapsed. Accrued interest shah be payable monthly. Accrued interest sh~l also be payable when the principal balance of th~s Note becomes due and payable (whether by demand, stated maturity or acceleration) or, if earlier, when such principal balance is actually paid to Company. Interest shall accrue from the date shipment of Equipment is made by Company, provided, however, that to the extent tiffs Note represents a replacement. substitution, renewal or re6nancing of exisdng indebtedness, interest shall accrue fi.om the date hereof. Interest shall accrue on the unpaid balance hereof at the rate provided for in this Note until the enfre unpaid balance has been paid in full, notwithstanding the entry of any judgment against Borrower. PREPAY34ENT - Borrower may at its option prepay all or any portion of the principal balance of this Note without premium or penalty. Prepayments shall be applied to scheduled instaUments of ?incipal in the inverse order of their maturity, shaU be accompanied by payment of accrued interest on the principal amount being prepaid and, unless this Note has been accelerated by Company shah not be permitted in an amount less than the scheduled principal installment prior to f'mal maturity of the outstanding principal balance. COLLATERAL - This Note and the indebtedness evidenced hereby shall be secured by any lien or securi .ty interest evidenced by a writing (whether now existing or hereafter executed) which contains a provision to the effect that such lien or security interest is intended to secure this Note or indebtedness evidenced hereby. EVENTS OF DEFAULT - Each of the folloWing shall be an Event of Default heretmder: (a) the nonpayment when due of any amount payable under this Note or under any obligation or indebtedness to Company of Borrower or any person liable, either absolutely or contingently, for payment of any indebtedness evidenced hereby, including endorsers, guarantors and sureties (each such person is referred to as an "Obligor"); Co) ff Borrower or any Obligor has failed to observe or perform any other existing or future agreement with Company of any nav. a-e whatsoever;, (c) if any representation, warranty, certificate, finnncial statement or other information made or given by Borrower or any Obligor to Company is materially incorrect or misleading; (d) if Borrower or any Obligor shall become insolvent or make an assi~enment for the benefit of creditors or ff any petition shall be Fried by or against Borrower or any Obligor under any bankruptcy insolvency law; (e) the entry of any judgment ag.ln~t Borrower or any Obligor which remains unsatisfied for 15 days or the issuance of any attachment, tax hen, levy or garnishment against any propen'y of material value in which Borrower or any Obligor has an interest; (0 ff anY attachment, levy, garnishment or similar legal process is served upon Company as a result of any ctalm against Borrower or any Obligor or against any property of Borrower or any Obligor; (g) the dissolution, merger, cousolida~on or change/a cootxol (as control is defined in Rule 12b-2 under the Securities Exchange Act of 1934), of any Borrower which is a corporation or parmership, or the sale or transfer of any substantial portion of any of Borrower's assets, or if any agreement for such dissolution, merger, or consolidation, change in control, sale or transfer is entered into by Borrower, without the writren consent of Company; (h) the death of any Borrower or Obhgor who is a natural person; (i) if Company determines reasonably and in'good faith that an event ha~ occurred or a condition exists which has had, or is likely to have, a material adverse effect on the financial couditien or creditwortinaess of Borrower or any Obli~,or. or on the ability of Borrower or any Obligor to neff.oma its obligation evidenced by this Note; (j) if Borrower shall fail to r~aUt promptly when doe tq the'apprupriate government agency or depository, may amount collected or withheld fxom any empinyec of Borrower for payroll taxes, Social SeCUrity payments or similar payroll deductions; (k) if any Obligor shall attempt to terminate or disclaim such Obligor's liability for the indebtedness evidenced by ~ Note; (1) if Company shall reasonably and m good faith determi.¢ and holily Borrower that arty collateral for t~ Note or for thc indebtedness evidenced hereby is insufficient as to quality and quantity; (m) if Borrower shall fail to pay when duc any material indebtedness for borrowed money other than to Company; or (n) if Borrower shall be notified of the failure of Borrower or any Obligor to provide fi-a-cial and other informa'tioo promptly when reasonably requested by Company. COMI'AN¥'S I~,~I¥1EOW.~ - Upon occurrence of one or more Events of Defanlt, unless Company elects otherwise, the entire unpaid balance of thif Note and all accrued interest shall be in~nediately due and payable without notice to Borrower or any Obligor, mad Company may, immediately or at any time thereal%r, exercise any or all of its rights and remedies hereunder or ~mder any agreement or othe~se under apphcablelaw against Borrower, any Obligor and any collateral. Company may exercise its fights and remedies in any order and may, at its option, delay in or refrain from exercising some or all of its rights and remedies without prejudice thereto. If Borrower fails to malee any payment when due hereunder, Borrower shall pay Company a service charge of five percent (5%) of such delinquent amount plus interest thereon from the due date thereof until paid at the rate set forth above. NOTICE TO BORROWER - &ny notice required to be given by Company under the provisions of'his Note shall be effective as to each Burrower and each Obligor when addressed to Borrower and deposited m the mail, postage prepaid, for delivery by £~rs~ class mail at Borrower's mailing address as it appears on Company's records. PAYMENTS - All payments doe under this Note are to be made in mediately available funds. If Company accepts payment in any other form, such payment shall not be deemed to have been made until the funds composing such payment have acmaliy been received by or made available to Company. PAYMENT OF COSTS - Ill addition to the principal and interest payable hereunder, Borrower agrees to pay Company, on demand, all costs and expenses (including reasonable attorney's fees and dizbursements) which may be incurred by Company in the collection of this Note or the enforcement of Company's rights and remedies hereunder. REPRESENTATIONS BY BORROWER - If Borrower is a corporation or limited partnersh/p, Borrower represents and warrants that it is validly existing and in good standing in the jurisdiction under whose laws it was urganiTed. If Borrower is a corporation, Borrower represents and warrants that the execution, delivery and performance of this Note are within Borrower's corporate powers, have been duly authorized by all necessary action by Borrower's Board of directors, and are not in contravention of the terms of Borrower's charter, by-laws, or any resolution of its Board of Directors. If Borrower is a general or limited parmerahip, Borrower represents and warrants that the execution, delivery and performance of th~ Note have been duly authorized and are not in conflict with any provision of Borrower's parmership agreement or certificate of Limited parmership. Borrower further represents and warrants that this Note has been validly executed and is enforceable in accordance with its terms, that the execution, delivery and performance by Borrower of this Note are not in contravention of law and do not conflict with any indenture, agreement or undertaking to which Borrower is a party or is otherwise bound, and that no consent or approval of any governmental authority or any third pa_ny is required in connection with the execution, delivery and performance of this Note· WAD/ER, ETC. - Borrower and each Obligor waive presentment, dishonor, notice of dishonor, protest and notice of protest. Neither the failure nor any delay on the part of Company to exercise any right, remedy, power or privilege hereunder shall operate as a waiver or modification thereof. No consent, waiver or modification of the terms of this Note shall be effective unless set forth in a writing signed by Company. All rights and remedies of Company are cumulative and concurrent and no single or partial exercise of any power or privilege shall preclude any other further exercise of any right, power or privilege. MISCELLANEOUS - mh~ Note is the unconditional obligation of Borrower, and Borrower agrees that Company shall not be required to exercise any of its rights or remedies against any collateral in which it holds a lien or security interest or against which it has a right ofsetoffor against any particular Obligor. All representation, warranties and agreements herein axe made jointly and severally by each Borrower. If any provision of this Note shall be held invalid or unenforceable, such validity or unenforceability shall not affect any other provision hereof. To the extent that this Note represents a replacement, substitution, renewal or refinancing of a pre-existing note or other evidence of indebtedness, the indebtedness represented by such pre-existing note or other instrument shall not be deemed to have been extinguished hereby. This Note has been delivered in and shall be governed by and construed in accordance with the laws of the Commonwealth of Pennsylvania without regard m the law confl/cts. ~ Note shall be binding upon each Borrower and each Obligor and upon their personal representatives, heirs, successors and assigns, and shall benefit Company and its successors and assigns. CONSENT TO JURISDICTION AND VENUE - IN ~ LEGAL PROCEEDING ll~VOLV~G, DIRECTLy OR INDIRECTLY, Ab/Y MA 1 1 ER ARISING OUT OF OR RELATED TO THIS NOTE OR '1 m~; RELATIONSHEP EVIDENCED HEREBy, EACH UNDERSIGNED PARTY 14~nEBy IRREVOCABLY SUBMI'P3 TO 1 HE NONEXCLUSIVE JURISDICTION OF ANY STATE OR FEDERAL COURT LOCATED IN ANY COUNTY OF THE COMMONWEALTH OF PENNSYLVANIA WHERE COMPANY MAINTAINS AN OFFICE AND AGREES NOT TO RAISE ANY OBJECTION TO SUCH ~URISDICTION OR TO THE LAYING OR MAIN'rAINING OF THE VENUE OF ANY SUCH PROCEEDING IN SUCH COUNTY. EACH UNDERSIGNED pARTY AGREE-~ THAT SERVICE OF PROCESS IN ANY SUCH PROCEEDING MAY BE DULY EFFECTI~ UPON IT BY MAILING A COPY THEREOF, BY REGISTEHED MAIL, POSTAGE pREpAID, TO EACH UNDERSIGNED pARTY. WAIVER OF,JURY TRIAL - EACH UNDERSIGNED PARTY HEREBY WAIVES AND COMPANY BY ITS ACCEPTANCE HEREOF THEREBy WA/VES, TRIAL BY JURY IN ANY LEGAL PROCEEDING INVOLVING. DIRECTLY OR INDH~CTLy, .~NY MA t 1 ~R (XVH~TIEER SOUNDING IN TORT, COIFTRACT OR O2 lt~RWISE) IN ANY WAY ARISING OUT OF OR RELATED TO THIS NOTE OR THE RELATIONSI-I/~ EVIDENCED HEREBY. THIS PROVISION IS A MATERIAL INDUCEMENT FOR COMPANY TO ENTER INTO, ACCEPT OR RELY UPON THIS NOTE. IN WITNESS WHEREOF, Borrower, intending this to be a sealed immmaent and intending to be legally bound hereby, has executed and delivered this Note as of the day and year first above written. Corporation or Partnership: By: By: (Print name and title) Centeniyropane Corpo~on Klren S. Oucry. Prcsident (Print ri.amc and title) Individual: Witness x x (Print name of Wimess) (Print name of Borrower) x x (Print name of Wimess) (Print name of Borrower) COMMERCIAL NOTE 34,335.85 December 13, 1995 Exhibit FOR VALUE RECEIVED, each of the undersigned, jointly and severally if more than one (hereinafter collectively referred to as "Borrower"), promises to pay to the order of Harsco Corporation (the "Company"). at its offices at 101 l Mumma Rnad, P.O. Box 8870, Camp Hill, Pennsylvania 17001-8870, the principal amount of Thirty-four Thousand Three Hundred Thirty-five and 85/100 DOLLARS. in lawful money of the United States, plus interest, to be paid as follows: said principal plus interest shall be payable in 59 Consecutive equal monthly installments of principal and interest, each in the amount of $746.54commencing 30 days fi.om the date of shipment of Equipment and on the same day of the month each month thereafter, each of which installments shall be applied first to the payment of accrued and unpaid interest and then to the payment of principal and a final installment in an amount which is necessary to pay in full all of the outstanding principal plus accrued and unpaid interest on this Note on the date of the tiro'al payment. Interest shall accrue at the rate of 11.0% per annum. Payments will be applied as aforesaid on the date received. ADDITIONAL TERMS OF T~IIS NOTE - Each of the following provisions shall apply to this Note. to any extension or modification hereof and to the indebtedness evidenced hereby, except as otherwise expressly stated above or in a separate writing signed by Company and Borrower. IN~EBTEDNIESS - Th~$ Note evidences the indebtedness of Borrower in connection with the sale of Equipment sold by Company to. Borrower. INTEREST - Interest shall be calculated on the basis of a 360-day year and shall be charged for the actual number of days elapsed. Accrued interest shall be payable monthly. Accrued interest shall also be payable when the entire principal balance of this Note becomes due and payable (whether by demand, stated maturity or acceleration) or, if earlier, ~vhen such principal balance is actually paid to Company. Interest shall accrue from the date shipment of Equipment is made by Company, provided, however, that to the extent this Note represents a replacement, substitution, renewal or ref'mancing of existing indebtedness, interest shall accrue fi.om the date hereof. Interest shall accrue on the unpaid balance hereof at the rate provided for in this Note until the entire unpaid balance has been paid in full, notwithstanding the entry of any judgment against Borrower. PREPAYMENT ~ Borrower may at its option prepay all or any portion of the principal balance of this Note without premium or penalty. Prepayments shall be applied to scheduled installments of principal in the inverse order of theft__maturity, shall be accompanied by payment of accrued interest on the principal amount being prepaid and, unless this Note has been accelerated by Company shall not be permitted in an amount less than the scheduled principal installment prior to final maturity of the outstanding principal balance. COLLATERAL - This Note and the indebtedness evidenced hereby shall be secured by any lien or security interest evidenced by a writing (whether now existing or hereafier executed) which contains a provision to the effect that 'such lien or security interest is intended to secure this Note or indebtedness evidenced hereby. EVENTS OF DEFAULT - Each of the following shall be an Event of Default hereunder: la) the nonpayment when due of any amount payable under this Note or under any obligation or indebtedness to Company of Borrower or any person liable, either absolutely or contingently, for payment of any indebtedness evidenced hereby, including endorsers, guarantors and sureties (each such person is referred to as an "Obligor"); lb) if Borrower or any Obligor has failed to observe or perform any other existing or future agreement with Company of any nature whatsoever; lc) if any representation, warrunW, certificate, financial statement or ether intbrmation made or given by Borrower or any Obligor to Company is materially incorrect or misleading; (d) if Borrower or any Obligor shall become insolvent or make an assignment tbr the benefit of creditors or if any petition shall be filed by or against Borrower or any Obligor under any bankruptcy insolvency law; lc) the ent~' of any judgment against Borrower or any Obligor which remains unsatisfied for 15 days or the issuance of any attachment, tax lien. levy or garnishment against any property of material value in which Borrowe/'br any Obligor has an interest: (t) if any attachment, levy, garnishment or similar legal process is served upon Company as a result of any claim against Borrower or any Obligor or against any property, of Borrower or any Obligor; (g) the dissolution, merger, consolidation or change in control (as control is defined in Rule 12b-2 under the Securities Exchange Act of [934), of any Borrower which is a corporation or partnership, or the sale or transfer of any substantial portion of any of Borrower's assets, or if any agreement tbr such dissolutiom merger, or consolidation, change in control, sale or transfer is entered into by Borrower. without the written consent of Company: (h) the death of any Borrower or Obligor who is a natural person: l.i) if Company determines reasonably and in good faith that an event has occurred or a condition exists which has had. or is likely to have. a material adverse effect on the financial condition or creditworthiness of Borrower or any Obligor, or on the abiliw of Borrower or any Obligor to perform its obligation evidenced by this Note; (j) if Borrower shall l~'ail to remit promptly when d,ue tq the appropriate government agency or aut/aorized ' depository, any mount collected or withheld from any employee of Borrower for payroll taxes, Social Security . payments or similar payrnll[ deductions; (k) if any Obligor shall attempt to terminate or disclaim such Obtigor's liability fur the indebtedne,~Is evidenced by this Note; (1) if Company shall reasonably and in good faith determine and notify Borrower that any collateral for this Note or for the indebtedness evidenced hereby is insufficient as to quality and quantity; (m) it Borrower shall fail to pay when due any material indebtedness for borrowed money other than to Company: er tn) if Borrower shall be notified of the failure of Borrower or any Obligor to provide financial and other inforrc, ution promptly when reasonably requested by Company. COMPANY'S REMEDIES - Upon occurrence of one or more Events of Default. unless Company elects otherwise, the entire unpaid balance ofth~s Note and all accrued interest shall be immediately due and payable without notice ~o Borrower or any Obligor, and Company may, immediately or at any time thereafter, exercise any or all of its rights and remedies hereunder or under any agreement or otherwise under applicable, law against Borrower, any Obligor and any collateral. Company may exercise its rights and remedies in any order and may, at its option, delay in or refrain from exercising some or all of its rights and remedies without prejudice thereto. If Borrower fails to make any payment '~ ~'en due hereunder. Borrower shall pay Company a service charge of five percent (5%) of such delinquent amount plus interest thereon from the due date thereof until paid at the rate set forth above. NOTICE TO BORROWER - Any notice required to be given by Company under the provisions of this Note shall be effective as to each Borrower and each Obligor when addressed to Borrower and deposited in the mail, postage prepaid, for delivery by fa'st class mail at Borrower's mailing address as it appears on Company's records. PAYMENTS - All payments due under this Note are to be made in immediately available funds. If Company accepts payment in any other form, such payment shall not be deemed to have been made until the funds comprising such payment have actually been received by or made available to Company. PAYMENT OF COSTS - In addition to the principal and interest payable hereunder, Borrower agrees to pay Company, on demand, all costs and expenses (including reasonable attorney's fees and disbursements) which may be incurred by Company in the collection of this Note or the enforcement of Company's rights and remedies hereunder. REPRESENTATIONS BY BORROWER ~ If Borrower is a corporation or ILmited partnership, Borrower represents and warrants that it is validly existing and in good standing in the jurisdiction under whose laws it was organized, If Borrower is a corporation. Borrower represents and warrants that the execution, delivery and performance of this Note are within Borrower's corporate powers, have been duly authorized by all necessary action by Borrower's Board of directors, and are not in conlravention of the terms of Borrower's charter, by-laws, or any resolution of its Board of Directors. If Borrower is a general or limited parmership, Borrower represents and warrants that the execution, delivery and performance of this Note have been duly authorized and are not in conflict with any provision of Borrower's parmership agreement or certificate of limited parmership. Borrower further represents and warrants that this Note has been validly executed and is enforceable in accordance with its terms, that the execution, delivery and performance by Borrower of this Note are not in contravention of law and do not conflict with any indenture, agreement or mtdertaking to which Borrower is a party or is otherwise bound, and that no consent or approval of any governmental authority or any third party is required in connection with the execution, delivery and performance of this Note. WAI~'ER. ETC. - Borrower and each Obligor waive presentment, dishonor, notice of dishonor, protest and notice of protest. Neither the failure nor any delay on the part of Company to exercise any right, remedy, power or privilege hereunder shall operate as a waiver or modification thereof. No consent, waiver or modification of the terms of this Note shall be effective unless set forth in a writing signed by Company. All rights and remedies of Company are cumulative and concurrent and no single or partial exercise of any power or privilege shall preclude any other further exercise of any right, power or privilege. MISCELLA,NEOUS - This Note is the unconditional obligation of Borrower. and Borrower agrees that Company shall not be required to exercise any of its rights or remedies against any collateral in which it holds a lien or security. interest or against which it has a right of setoffor against any particular Obligor. All representation, warranties and agreements herein are made jointly and severally by each Borrower. if any provision of this Note shall be held invalid or unenforceable, such validity or unenforceabiliry shall not affect any other provision hereof. To the extent that this Note represents a replacement, substitution, renewal or refinancing of a pre-existing note or other evidence of indebtedness, the indebtedness represented by such pre-existing note or other instrument shall not be deemed to have been extinguished hereby. This Note has been delivered in and shall be governed by and construed in accordance with the laws of the Commonwealth of Pennsylvania without regard to the law conflicts. This Note shall be binding upon each Borrower and each Obligor and upon their personal representatives, heirs, successors and assigns, and shall benefit Company and its successors and assigns. .ASSIGNMENT BY COMPANY - Company may assign or transfer, and Borrower hereby consents to the assignment or -transfer. of Company's interest in this Note without notice to Borrower. Borrower agrees that the liability of Borrower to any assignee of Company or any subseqoent assignee of such assignee, shall be absolute and unconditional. CONSENT TO JURISDICTION AND VENUE - IN ANY LEGAL PROCEEDING INVOLVING, DIRECTLY OR INDIRECTLy, ANY MA'I-I'ER ARISING OUT OF OR RELATED TO THIS NOTE OR THE RELATIONSHIP EVIDENCED HEREBy, EACH UNDERSIGNED PARTY HEREBY IRREVOCABLY SUBMITS TO THE NONEXCLUSIVE JURISDICTION OF ANY STATE OR FEDERAL COURT LOCATED IN ANY COUNTY OF THE COMMONWEALTH OF PENNSYLVANIA WHERE COMPANY MAINTAINS AN OFFICE AND AGREES NOT TO RAISE ANY OBJECTION TO SUCH JURISDICTION OR TO THE LAYING OR MAINTAINING OF THE VENUE OF ANY SUCH PROCEEDING IN SUCH COUNTY. EACH UNDEi~IGNED PARTY AGREES THAT SERVICE OIF PROCESS IN ANY SUCH PROCEEDING MAY BE DULY EFFECTED UPON IT BY MAILING A COPY THEREOF, BY REGISTERED MAIL, POSTAGE PREPAID. TO EACH UNDERSIGNED PARTY. WAIVER OF JURY TRIAL - EACH UNDERSIGNED PARTY HEREBY WAIVES AND COMPANY BY ITS ACCEPTANCE HEREOF THEREBY WAIVES, TRIAL BY JURY IN ANY LEGAL PROCEEDING INVOLVING, DIRECTLY OR INDIRECTLY, ANY MATTER 0,VHETHER SOUNDING IN TORT, CONTRACT OR OTHERWISE) IN ANY WAY ARISING OUT OF OR RELATED TO THIS NOTE OR THE RELATIONSHIP EVIDENCED HEREBY. THIS PROVISION IS A MATERIAL INDUCEMENT FOR COMPANY TO ENTER INTO, ACCEPT OR RELY UPON THIS NOTE. IN WITNESS WHEREOF', Borrower. intending this to be a sealed instrument and intending to be legally bound hereby, has executed and delivered this Note as of the day and year fwst above written. Corporation or Pnrtnership: By: Centennial Propane Corporation By: ' ~& :~. ~_.~LC/, (Print name and title) Karen Ouery. President- (Print name and title) Individual: Witness x (Print name of Witness) (Print name of Borrower) x (Print name of Witnass) (Print name of Borrower) 16,306.18 COMMERCIAL NOTE May 8, 1996 Exhibit FOR VALUE RECEIVED, each of the undersigned, jointly and severally if more than one (hereinafter collectively referred to as "Borrower"), promises to pay to the order of HARSCO CORPORATION (the "Company"), at its offices at 1011 Mumma Road, P.O. Box 8870, Camp Hill, Pennsylvania 17001-8870, the principal amount of Sixteen Thousand Three Hundred Six and 18/100 DOLLARS, in lawful money of the United States, plus interest, to be paid as follows: said principal plus interest shall be payable in 59 Consecutive equal monthly installments of principal and interest, each in the amount of $354.$4 commencing 30 days from the date of shipment of Equipment and on the same day of the month each month thereafter, each of which installments shall be applied first to the payment of accrued and unpaid interest and then to the payment of principal and a final installment in an amount which is necessary, to pay in full all of the outstanding principal plus accrued and unpaid interest on this Note on the date of the final payment. Interest shall accrue atthe rate of 11.0% per annum. Payments will be a.eplied as aforesaid on the date receive~.. ADDITIONAL TERMS OF THIS NOTE - Each of the following provisions shall apply to this Note, to any extension or modification hereof and to the indebtedness evidenced hereby, except as otherwise expressly stated above or in a separate writing signed by Company and Borrower. INDEBTEDNESS - This Note evidences the indebtedness of Borrower in connection with the sale of Equipment sold by Company to Borrower. INTEREST - Interest shall be calculated on the basis of a 360-day year and shall be charged for the actual number of days elapsed. Accrued interest shall be payable monthly. Accrued interest shall also be payable when the entire principal balance of this Note becomes due and payable (whether by demand, stated maturity or acceleration) or, if earlier, when such principal balance is actually paid to Company. Interest shall accrue from the date shipment of Equipment is made by Company, provided, however, that to the extent this Note represents a replacement, substitution, renewal or refinancing of existing indebtedness, interest shall accrue from the date hereof. Inta~st shall accrue on the unpaid balance hereof at the rate provided for in this Note until the entire unpaid balance has been paid in full, notwithstanding the enay of any judgment against Borrower. PREPAYMENT - Borrower may at its option prepay all or any portion of the principal balance of this Note without premium or penalty. Prepayments shall be applied to scheduled instalLments of principal in the inverse order of their maturity, shall be accompanied by payment of accrued interest on the principal amount being prepaid and, unless this Note has been accelerated by Company shall not be permitted in an amount less than the scheduled principal installment prior to final maturity of the outstanding principal balance. COLLATERAL - This Note and the indebtedness evidenced hereby shall be secured by any lien or security interest evidenced by a writing (whether now existing or hereafter executed) which contains a provision to the effect that such lien or security interest is intended to secure this Note or indebtedness evidenced hereby. EVENTS OF DEFAULT - Each of the following shall be an Event of Default hereunder: (a) the nonpayment when due of any amount payable under this Note or under any obligation or indebtedness to Company of Borrower or any person liable, either absolutely or contingently, for payment of any indebtedness evidenced hereby, including endorsers, guarantors and sureties (each such person is referred to as an "Obligor"); (b) if Borrower or any Obligor has failed to observe or perform any other existing or future agreement with Company of any nature whatsoever; (c) if any representation, warren .ty, certificate, financial statement or other information made or given by Borrower or any Obligor to Company is materially incorrect or misleading; (d) if Borrower or any Obligor shall become insolvent or make an assignment for the benefit oCcreditors or if any petition shall be filed by or against Borrower or any Obligor under any bankruptcy insolvency law; (e) the entry of any judgment against Borrower or any Obligor which remains unsatisfied for 15 days or the issuance of any attachment, tax lien, levy or garnishment against any property of material value in which Borrower or any Obligor has an interest; (f) if any attachment, levy, garnishment or similar legal process is served upon Company as a resuIt of any claim against Borrower or any Obligor or against any property, of Borrower or any Obligor: (g) the dissolution, merger, consolidation or change in control (as control is defined in Rule 12b-2 under the Securities Exchange Act of 1934), of any Borrower which is a corporation or partnership, or the sale or transfer of any substantial portion of any of Borrower's assets, or if any agreement for such dissolution, merger, or consolidation, change in control, sale or transfer is entered into by Borrower. without the written consent of Company; (h) the death of any Borrower or Obligor who is a natural person: (i) if Company determines reasonably and in good faith that an event has occurred or a condition exists which has had, or is likely co have. a material adverse effect on the financial condition or creditworthiness of Borrower or any Obligor, c~r on the ability of Borrower or any Obligor to perform its obligation evidenced by this 'Note; (}) if Borrower shall fail to remit promptly when due to the appropriate government agency or authorized' depository any amount cc, ected or withheld from any emp oyee of Borrower for payroll taxes. Social Security payments or similar payroll deductions; (k) if any Obligor shall attempt to terminate or disclaim such Obligor's liability for the indebtedness evidenced by this Note; (1) if Company shall reasonably and in good faith determine and notify, Borrower that any collateral for this Note or for the indebtedness evidenced hereby is insufficient as to quality and quantity; (m) if Borrower shall fail to pay when due any material indebtedness for borrowed money other than to Company; or (n) if Borrower shall be notified of the failure of Borrower or any Obligor to provide t'mancial and other infurmation promptly when reasonably requested by Company, COMPANY'S REMEDIES - Upon occurrence of one or more Events of Default, unless Company elects otherwise, the entire unpaid balance of this Note and all accrued interest shall be immediately due and payable without notice to Borrower or any Obligor, and Company may, immediately or at any time thereafter, exercise any or all of its rights and remedies hereunder or under any agreement or otherwise under applicable law against Borrower, any Obligor and any collateral. Company may exercise its rights and remedies in any order and may, at its option, delay in or refrain from exercising some or all of its rights and remedies without prejudice thereto. [f Borrower thils to make any payment when due hereunder. Borrower shall pay Company a se~ice charge of five percent (5%) of such delinquent amount plus imerest thereon from the due dare thereof until .zaid at ;he rate set fo~h a~ov.~. NOTICE TO BORROWER - Any notice required to be given by Company under the provisions of this Note shall be effective as to each Borrower and each Obligor when addressed to Borrower and deposited in the mail, postage prepaid, for delivery by first class mail at Borrower's mailing address as it appears on Company's records. PAYMENTS - All payments due under this Note are to be made in immediately available funds. If Company accepts payment in any other form, such payment shall not be deemed to have been made until the fiinds comprising such payment have actually been received by or made available to Company. PAYMENT OF COSTS - In addition to the principal and interest payable hereunder, Borrower agrees to pay Company, on demand, all costs and expenses (including reasonable attorney's fees and disbursements) which may be incurred by Company in the collection of this Note or the enforcement of Company's rights and remedies hereunder. REPRESENTATIONS BY BORROWER - If Borrower is a corporation or limited partnership, Borrower represents and warrants that it is validly existing and in good standing in the jurisdiction under whose laws it was organized. If Borrower is a corporation, Borrower represents and warrants that the execution, delivery and performance of this Note are within Borrower's corporate powers, have been duly authorized by all necessary action by Borrower's Board of directors, and are not in contravention of the terms of Borrower's chaser, by-laws, or any resolution of its Board of Directors. If Borrower is a general or limited partnership, Borrower represents and warrants that the execution, delivery and performance of this Note have been duly authorized and are not in conflict with any provision of Borrower's parmership agreement or certificate of limited partnership, Borrower further represents and warrants that this Note has been validly executed and is entbrceable in accordance with its terms, that the execution. delivery and performance by Borrower of this Note are not in contravention of law and do not conflict with any indenture, agreement or undertaking to which Borrower is a party or is otherwise bound, and that no consent or approval of any governmental authority or any third party is required in connection with the execution, delivery and performance of this Note. WAIVER. ETC. - Borrower and each Obligor waive presentment, dishonor, notice of dishnnor, protest and notice of protest. Neither the failure nor any delay on the part of Company to exercise any right, remedy, power or privilege hereunder shall operate as a waiver or modification thereot~ No consent, waiver or modification of the terms of this Note shall be effective unless set forth in a writing signed by Company. All rights and remedies of Company are cumulative and concurrent and no single or partial exercise of any power or privilege shall preclude any other further exercise of any right, power or privilege. MISCELLANEOUS - This Note is the unconditional obligation of Borrower, and Borrower agrees that Company shall not be required to exercise any of its rights or remedies against any collateral in which it holds a lien or security interest or against which it has a right of setoffor against any particular Obligor. Ail representation, warranties and agreements herein are made jointly and severally by each Borrower. If any provision of this Note shall be held invalid or unenforceable, such validity or unenforceability shall not affect any other provision hereof. To the extent that this Note represents a replacement, substitution, renewal or refinancing of a pre-existing note or other evidence of indebtedness, the indebtedness represented by such pre-existing note or other instrument shall not be deemed to have been extinguished hereby. This Note has been delivered in and shall be governed by and construed in accordance with the laws of the Commonwealth of Pennsylvania without regard to the law conflicts. This Note shall be binding upon each Borrower and each Obligor and upon their personal representatives, heirs, successors and assigns, and shall benefit Company and its successors and assigns. ASSIGNMENT BY COMPANY - Company may assign'or transfer, and Borrower hereby consents to the assigrmaent or transfer, of Company's interest in this Note without notice to Borrower. Borrower agrees that the liability of Borrower to any assignee of Company or any subsequent assignee of such assignee, shall be absolute and unconditional. CONSENT TO JURISDICTION AND VENUE - IN ANY LEGAL PROCEEDING INVOLVING, DIRECTLY OR INDIRECTLy, ANY MATTER ARISING OUT OF OR RELATED TO THIS NOTE OR THE RELATIONSHIP EVIDENCED HEREBy, EACH UNDERSIGNED PARTY HEREBY IRREVOCABLY SUBMITS TO THE NONEXCLUSIVE JURISDICTION OF ANY STATE OR FEDERAL COURT LOCATED IN ANY COUNTY OF THE COMMON~VEALTH OF PENNSYLVANIA WHERE COMPANY MAINTAINS AN OFFICE AND AGREES NOT TO RAISE ANY OBJECTION TO SUCH JURISDICTION OR TO THE LAYING OR MAINTAINING OF THE VENUE OF ANY SUCH PROCEEDING IN SUCH COUNTY. EACH UNDERSIGNED PARTY AGREES THAT SERVICE OF PROCESS IN ANY SUCH PROCEEDING MAY BE DULY EFFECTED UPON IT BY MAILING A COPY THEREOF. BY REGISTERED MAIL, POSTAGE PREPAID, TO EACH UNDERSIGNED PARTY. WAIVER OF JURY'IR[AL. EACH UNDERSIGNED PARTY HEREBY WAIVES AND COMPANY BY ITS ACCEPTANCE HEREOF THEREBY WAIVES, TRIAL BY JURY IN ANY LEGAL PROCEEDING INVOLVING, DIRECTLY OR INDIRECTLY, ANY MA 1 l ~R (~VHETHER SOUNDING IN TORT, CONTRACT OR OTHERWISE) IN ANY WAY ARISING OUT OF OR RELATED TO THIS NOTE OR THE RELATIONSHIP EVIDENCED HEREBY. THIS PROVISION IS A MATERIAL INDUCEMENT FOR COMPANY TO ENTER INTO, ACCEPT OR RELY UPON THIS NOTE. , ,VITNESS WHEREOt., Borrower. intending this to be a sealed instrument and intending to be legally bound acreby, has executed and delivered tMs Note as of the day and year first above written. Corporation or Partnership: (Print name and title) Centennial Propane.7oration ~ Karen S. Ouerv. Presiuem (P~nt name and title) Individual: Witness (Print name of Witness) x X (Print name of Borrower) (Print name of Borrower) Personal Guaranty Contract GUARANTY AGREEMENT dated this 13th day of December, 1995 for and in consideration of the extension of credit to Centennial Propane Corporation and/or his agents of Karan Query (referred to hereinafter as the "Guarantor"), and other good and sufficient considerations to the undersigned accruing, I (or we, jointly and severally) hereby give this Continuing Guaranty to Taylor-Wharton Gas Equipment Division ef Harsco Corporatlor,, referred to hereinafter as the "Harsco"), for the payment in full, together with all interest, fees and charges of whatsoever nature and kind of any and all indebtedness of the Guarantor to the Harsco, whether an open account, credit card account, or evidenced by note, secured or unsecured, due and owing at the present time, or that may hereafter be due and owing by Guarantor to Harsco, and it is further agreed that if bills are not paid when due, I '(or we or any of us) will personally pay the same upon notice and demand. It is agreed that this Continuing Guaranty applies to any extensions or renewals of credit given by Harsco to Guarantor. It is specifically understood and agreed that the Harsco shall not be required to exhaust its legal remedies for recovery and collection against the Guarantor before looking to the undersigned (or any of them) for payment of this account, but that if the account is not paid when due Harsco may, at once, notify the undersigned, and upon receipt of such notice that the said account is past due and unpaid, the undersigned assumes liability therefor and agrees to pay the same without delay or defalcation. The discharge of Guarantor in bankruptcy will not relieve the undersigned from liability with regard to any amount due and owing under this Continuing Guaranty. It is distinctly understood and agreed that Harsco may enter suit against the undersigned (or any one or more of the undersigned) for the recovery of the entire amount of said indebtedness hereby secured, and may recover judgment therefore against the undersigned (or any one or more of said guarantors). It is also understood and agreed that in the event the Harsco commences such suit then and in that event I (or we and each of us) shall pay for the cost of suit and attorneys' fees and commissions for collection, in addition to the indebtedness hereby secured. It is further understood and agreed that the undersigned, each for himself, his heirs, executors, and administrators, does hereby waive the benefit of any and all state laws exempting real and/or personal property from levy and sale on execution, and agrees to the immediate issuance and levying of writs of execution upon his interests in any real estate of personal property and the subjugation thereof to sale for satisfaction of any such judgment or judgments. The undersigned hereby waives notice of the acceptance of this guaranty, notice of demand and maturity of payments to become due, notice of default in payment by the Guarantor and all such notices required or customarily given under tike circumstances. It is also specifically understood and agreed that I (or we and each of us) expressly consent that the time of payment of any indebtedness hereby secured may be extended, or that the Harsco may at any time require and accept other security of any nature whatsoever from Guarantor without notice to consent from me (or us or each of us). I (or we and each of us jointly and severally) agree to be held responsible for said obligations precisely as if the same had been contracted and due and owing by the undersigned or each of us in person. This Continuing Guaranty binds each of the signers hereto, jointly and severally, their respective heirs, executors, and administrators and shall extend to and cover alt renewals of any claims or demands guaranteed under this instrument, or the extension of time of payment thereof, and shall remain in full force and effect from this date until revoked by the Exhibit "E" undersigned in writing to be sent by registered mail to the Vice President-Controller at P. O, Box 8316, City of Camp Hill, State of Pennsylvania 17001-8316, evidence of such mailing to be established by postal receipt. No addition, alteration, modification, novation c: change in any of the terms or conditions of this Guaranty shall be binding upon the Harsco unless made in writing and signed by an authorized Vice President of Harsco. The obligation of Guarantor is a primary and unconditional obligation and shall not be affected in any manner by any change in the status of Customer or.by any change from any cause whatsoever. This Guaranty shall not be revoked by the death or incapacity of any Guarantor but shall remain in full rome and effect until terminated in a writing executed by Hareco and Guarantor. Guarantor hereby waives any defenses whatsoever which Guarantor and/or Customer may have with respect to any of the obligations or liabilities of Guarantor to Harsco under this G~3r~nty including, without limitation to the generality hereof, defenses adsing out of estoppel, itches or any statute of limitations. It is the specific intention and agreement of the parties that this Agreement for any purpose be governed and interpreted solely by and under the laws of the Commonwealth of Pennsylvania in which jurisdiction the principal office.~ ;f Harsco Corporation are located. It is the specific intention and agreement of the parties thai this Agreement be suitable for filing and confess .:n of judgment in the event of a Oefault hereunder. If any provisions of this Guaranty Agreement snait contravene or be invalid unoer the !aws of the United States or any State, such contravention or invalidity shall not invalidate this Agreement or any other agreement which is part of this transaction, but shall be construed as not containing such provision, and the rights and obligations of the parties under this Guaranty Agreement shall be interpreted, construed and enforced accordingly. IN WITNESS WHEREOF, the parties have executed this Guaranty Agreement the day and year first above written. WITNESS: (Name and address) GUARANT~)R ,~. ~ ~,~j! Karen Query (Name) WITNESS: ? Taylor-Wharton Gas Equipment Division of Harsco Corporation Vice President & Controller VERIFICATION COMPANY NAME: Taylor-Wharton Gas Equipment, a division of HARSCO Corporation I verify that the statements made in the foregoing Complaint are true and correct. I understand that false statements herein are made subject to the penalties of 18 PA C.S. § 4904 relating to unsworn.falsification to authorities. Dated: AFFIDAVIT = SERVICE Commonwealth of Pennsylvania Case Number: 03-2995 County of Cumberland Common Pleas Court Plaintiff: Taylor Whorton Gas Equipment, a Division of of Haraco Corporation vs. Defendant: Centennial Propance Corporation; Karan Sue Query For: Choice Process - Tampa 1112 Chanelside Drive #200 Tampa FL 33602 Received by A.A.A. PROCESS SERVERS on the 18th day of July, 2003 at 2:52 pm to be served on CENTENNIAL PROPANE; 1416 Park Street, Suite #A Castle Rock, Colorado 80104. I, Felina Swaba, being duly sworn, depose and say that onthe Zlst day of August, 2003 at 11:2,5 am, h ~: After due search, careful inquiry and diligent attempts I was unable to serve the Notice; Complaint; Exhibit "A"; Exhibit "B" Exhibit "C"; Exhibit "D"; Exhibit "IE' for the mason that I failed to rind Centennial Propane or information to allow further search. Comments pertaining to this Service: The follow ng is a list of attempts and their reults: 1) ~-19-2003 {~ 12:45f;,m -This address belongs to the National Association of School Nurses. When asked if Karen Query was in, they stated that they had no one who worked there by ,that name nor did they know of anyone by that name, I certify that I am over the age of 18 and have no interest in the above action. Subscribed and Sworn to before me on the 6th day of December, 2003 by the affiant who is personally krlpwn t~ me. ,,,~,%%%t11111111111 A.A.A. PROCESS SERVERS '~'~. W H~,~//~. P.Id.B. 184 (~OTARY PUBLIC ' *f¥~ o;~OTA/~,u";~ ~ Denver, CO 80210 - (8o0) -~e~.- ~ ~ Our Job Senal Number 2003000863 TAYLOR-WHARTON GAS EQUIPMENT, A DIVISION OF HARSCO CORPORATION, Plaintiff VS. CENT~;NNIAL PROPANE CORPORATION AND KAREN SUE QUERY, Defendants IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION'-LAW NO. 03-2995 CIVIL TERM PRAECIPE TO THE PROTHONOTARY: Please mark the above matter settled and discontinued. PURCELL, KRUG & HALLER f"~Jo~t~ W. Purcell, Jr. ~ ~.__.Mg. #29955 1719 north Front Street Harrisburg, PA 1'7102 (717) 234-4178 Dated: June 28, 2004