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OBERMAYER REBMANN MAXWELL & HIPPEL LLP
By: William J. Leonard, Esquire
Roger P. Cameron, Esquire
Identification Nos. 42362, 53251
1617 John F. Kennedy Boulevard, 19th Floor
Philadelphia, PA 19103-1895
(215) 665-3000
Attorneys for Plaintiff
FINOVA CAPITAL CORPOR
111 West 40'" Street, 14" Floor
New York, NY 10018
Plaintiff,
Vs.
IF SERVICES LTD., t/a
ROHRER STROMBOLI,
1302 State Hill Road, Bldg. No. 3
Camp Hill, PA 17011
Defendant.
CUMBERLAND COUNTY
COURT OF COMMON PLEAS
CIVIL ACTION - LAW
No. 4,q -6 (4?
ENTRY OF APPEARANCE FOR
DEFENDANT IF SERVICES LTD. T/A ROHRER STROMBOLLI AND
PRAECIPE FOR CONFESSION OF JUDGMENT
AND ASSESSMENT OF DAMAGES
TO THE PROTHONOTARY:
Kindly enter my appearance for and on behalf of Defendant IF Services Ltd. t/a Rohrer
Strombolli in the above-captioned matter.
I hereby confess judgment under Pa. R. Civ. P. 2951 in favor of Plaintiff and against
the Defendant IF Services Ltd. t/a Rohrer Strombolli by virtue of the Warrant of Attorney
contained in the Loan and Security Agreement attached to the Complaint in Confession of
Judgment, and assess damages as follows:
Accelerated Principal
and Interest S 655,840.89
Attorneys Ices 597.580.61
TOTAL $753,421.50
172141
together with costs incurred during the proceedings in this matter and interest at the statutory rate
from the date of judgment.
Respectfully submitted,
q OBERMAYER REBMANN MAXWELL & HIPPEL LLP
Dated: l0 l / By
Wil am J. Leonard, Esquire
Roger P. Cameron, Esquire
Identification Nos. 42362, 53251
Attorneys for Defendant
IF Services Ltd. t/a Rohrer Strombolli
ORDER OF.IUDGMENT
AND NOW, this day of UNJ99; IT IS HEREBY ORDERED
1=
AND DECREED that JUDGMENT BE ENTERED IN FAVOR OF PLAINTIFF AND
AGAINST DEFENDANT IF SERVICES LTD. T/A ROHRER STROMBOLLI by virtue of the
Warrant of Confession in the Loan and Security Agreement for the following amounts:
Accelerated Principal
and Interest $ 655,840.89
Attorneys Fees $ 97.580.61
TOTAL. $7539421.50
together with costs incurred during the proceedings in this matter and interest at the statutory rate
from the date of j/u/dgment.
I
'1999
Dated:
PROTHONOTARY
172141
.,
?__-
Curtin R. Long
•ROTMOMOTARV
OFFICE OF THE PROTHONOTARY
COURT OF COMMON PLEAS
CUMBERLAND COUNTY
1 COURTHOUSE SQUARE, CARLISLE, PA 17013
(717) 240-6195
To: IF SERVICES LTD., t/a
ROHRER STROMBOLI
1302 State Hill Road, Bldg. No. 3
Camp Hill, PA 17011
FINOVA CAPITAL CORPORATION
111 West 40th Street, 14th Floor
New York, NY 10018
VS.
IF SERVICES LTD., t/a
ROHRER STROMBOLI,
1302 State Hill Road, Bldg. No. 3
Camp Hill, PA 17011
NOTICE
COURT OF COMMON PLEAS
CUMBERLAND COUNTY
Tem, 19
No. l
Pursuant to Rule 236 of the Supreme Court of Pennsylvania, you are hereby notified that a
judgment has been entered against you in the above proceeding as indicated below.
Curtis X-ot ono&V
'judgment by Default
FX.•Money judgment
C] judgment in Replevin
r- judgment for Possession
C judgment on Award of Arbitration
judgment on Verdict
Q judgment on Court Findings
IF YOU HAVE ANY QUESTIONS CONCERNING THIS NOTICE. PLEASE CALL:
ATTORNEY Rnanr P CnmPrnn Esquire
11R#"i Affamov 1 NV v#
at this telephone number: (215 1 6h 5-19 A A
341 P810
OBERMAYER REBMANN MAXWELL & HIPPEL LLP
By: William J. Leonard, Esquire
Roger P. Cameron, Esquire
Identification Nos. 42362, 53251
1617 John F. Kennedy Boulevard, 19th Floor
Philadelphia, PA 19103-1895
(215) 665-3000
Attorneys for Plaintiff
FINOVA CAPITAL CORPOA
111 West 40° Street, 14" Floor
New York, NY 10018
COURT OF COMMON PLEAS
CUMBERLAND COUNTY
Plaintiff,
VS.
CIVIL ACTION - LAW
No. 9 g _ G 14 P
IF SERVICES LTD., t/a
ROHRER STROMBOLI,
1302 State Hill Road, Bldg. No. 3
Camp Hill, PA 17011
Defendant.
COMPLAINT - CIVIL ACTION
CONFESSION OF.I1DGMENT FOR MONEY DAMAGES
Plaintiff, FINOVA Capital Corp. ("FINOVA"), through its counsel, Obermayer Rebmann
Maxwell & Hippel LLP, files this complaint in confession of judgment against Defendant for
money damages pursuant to Pa. R. Civ. P. 2951(b), rd =q., and in support thereof avers as follows:
1. Plaintiff is a corporation duly organized and existing under and pursuant to the
laws of the Slate of Delaware, whose address is as set forth above.
2. Defendant is a corporation, upon information and belief, duly organized and
existing under the laws of the State of Delaware, whose address and principal place of business
is as set forth above and which trades as Rohrer Stromboli.
172127
10. Pursuant to the Accounting, as of February 8, 1999 Defendant was indebted to
FINOVA in the amount of $638,769.82 plus interest and costs.
11. On or about March 17, 1999, in connection with this same commercial
transaction, FINOVA and Defendant entered into a Forbearance Agreement, pursuant to which
FINOVA agreed to forbear from commencing any action against Defendant for the obligations
that Defendant owed to FINOVA under the Loan and Security Agreement, except as set forth in
that Forbearance Agreement, in consideration for Defendant making certain payments to
FINOVA and taking such further action as set forth and pursuant to the terns and conditions of
that Forbearance Agreement. A true and correct copy of the Forbearance Agreement is annexed
to and incorporated herein as Exhibit "D".
12. Defendant is in default of the terms and conditions of the Forbearance Agreement
because of, among other things, its failure to pay in full when due the obligations set forth in the
Forbearance Agreement, including payments due on August 1, September 1 and October 1, 1999
and failing to fulfill certain financial covenants.
13. Pursuant to the Loan and Security Agreement and the Forbearance Agreement as
of September 1, 1999, Defendant is indebted to FINOVA in the principal amount of
$650,537.37, plus per diem interest of $147.32 from September 1, 1999, attorney fees of
$97,580.61 and costs.
14. The Loan and Security Agreement permits the confession of judgment for money
damages for the recovery all sums due under the Loan and Security Agreement.
15. The warrant of attorney appearing in the Loan and Security Agreement is less
than twenty (20) years old and has not been assigned or previously exercised with respect to the
defaults at issue here.
172127
3. On September 11, 1998, in connection with a commercial transaction, Defendant,
as Maker, entered into a written Loan and Security Agreement, with Plaintiff, as Holder. A true
and correct copy of the Loan and Security Agreement Note is annexed hereto and incorporated
herein to this Complaint as Exhibit "A".
4. Defendant is in default of the terns and conditions of the Loan and Security
Agreement because of, among other things, its failure to pay in full when due its obligations
under and pursuant to the terms of the Loan and Security Agreement.
5. Pursuant to the Loan and Security Agreement, at Section 2.10 (e), FINOVA shall
provide Defendant with monthly accountings, which accountings shall be deemed correct,
accurate and binding upon Defendant and an account stated unless Defendant notifies FINOVA
in writing to the contrary within thirty days after the account is rendered.
6. On or about September 30, 1998 FINOVA rendered and delivered to Defendant a
monthly accounting (the "Accounting"). A copy of the Accounting is annexed hereto and
incorporated herein as Exhibit "B".
7. Defendant did not to notify FINOVA in writing within the thirty days alter it
rendering the Accounting that the Accounting was incorrect, inaccurate, and non-binding and/or
not an account stated.
8. Pursuant to that Accounting and the Loan and Security Agreement, on February
2, 1999 Defendant was indebted to FINOVA in the amount of $631,592.14.
9. On February 2, 1999 FINOVA, served by Federal Express, a Notice of Default
upon Defendant. A true and correct copy of this notice is annexed hereto and incorporated
herein as Exhibit "C".
172127
16. An Affidavit of Default is annexed hereto and incorporated into as Exhibit "E".
17. An Affidavit certifying that the address of FINOVA is as set forth above, that the
last known address of Defendant is as set forth above, that its income exceeds $10,000.00 per
year, and that it is not in the military service of the United States and/or its States, Territories or
Allies is annexed hereto and incorporated herein as Exhibit "F".
18. An Affidavit certifying that the transaction upon which this matter is based is not
a retail or installment sale, contract or account is annexed hereto and incorporated herein as
Exhibit "G
19. An Affidavit certifying that the transaction is not a consumer credit transaction
with an natural person is annexed hereto and incorporated herein as Exhibit "H".
20. An Affidavit certifying that the transaction upon which this matter is based is a
business transaction is annexed hereto and incorporated herein as Exhibit "I".
WHEREFORE, Plaintiff FINOVA Capital Corporation, as authorized by the warrant of
attorney appearing in the Loan and Security Agreement, respectfully demands that judgment be
entered in its favor and against Defendant IF Services Ltd., t/a Rohrer Stromboli, in the amount
172127
a
of $650,537.37 together with interest of $5,303.52 from September 1, 1999 through October 6,
1999, attorneys fees of $97,580.61, costs, and such further relief as the Court deems just and
proper.
Respectfully submitted,
OBERMAYER REBMANN MAXWELL & HIPPEL LLP
Dated: Olt,By:
William Y Leonard, Esquire
Roger P. Cameron, Esquire
Identification Nos. 42362, 53251
One Penn Center, 19" Floor
1617 John F. Kennedy Boulevard
Philadelphia, PA 19103-1895
(215) 665-3000
Attorneys for Plaintiff
FINOVA Capital Corp.
172127 S
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FINOVA
FINANCIAL INNOVATORS
LOAN AND SECURITY AGREEMENT
IF SERVICES LTD.
DIB/A ROHRER'S STOMBOLI
1302 Slate Hill Road
Building No. 3
Camp H114 Pennsylvania 17011
23-2662008
Borrower Fed ID Tax No.
$600,000
Credit Limit
As of September 11, 1998
FINOVA BUSINESS CREDIT
0DMAAT0CSVUIEF_O0L4IIocu
DEFINITIONS ...........................................................................................................1
1.1 Defined Terms ...............................................................................................1
1.2 Other Terms ...................................................................................................7
2. LOANS; INTEREST RATE AND OTHER CHARGES ..................................................7
2.1 Total Facility ..................................................................................................7
2.2 Loans ..............................................................................................................7
2.3 Overlines; Overadvances ...............................................................................7
2.4 Intentionally Omitted .....................................................................................7
2.5 Loan Account .................................................................................................7
2.6 Interest; Fees ..................................................................................................7
2.7 Default Interest Rate ......................................................................................7
2.8 Examination Fee ............................................................................................7
2.9 Excess Interest ...............................................................................................8
2.10 Principal Payments; Proceeds of Collateral ..................................................8
2.11 Application of Collateral ................................................................................9
2.12 Application of Payments..... ................................... o ............... ....................... 10
2.13 Intentionally Omitted ....................................................................................10
3. SECURITY ........................................................................................................................10
3.1 Security Interest in the Collateral ..................................................................10
3.2 Perfection and Protection of Security Interest ...............................................10
3.3 Preservation of Collateral ..............................................................................11
3.4 Insurance ........................................................................................................11
3.5 Collateral Reporting; Inventory..................................................................... 11
3.6 Receivables... ................................................................................... o ............. 11
3.7 Equipment ......................................................................................................12
3.8 Other Liens; No Disposition of Collateral .....................................................12
3.9 Collateral Securi...............12
4. CONDMONS OF CLOSING ...................................................................................12
4.1 Initial Advance ...............................................................................................12
4.2 Subsequent Advances ....................................................................................16
5. REPRESENTATIONS AND WARRANTIES ..................................................................16
5.1 Due Organization ...........................................................................................16
5.2 Other Names ..... 16
5.3 Due Authorization. ................ 6 ..................... o .............. 6 ....... ............. 6 ........ o ...5.4 Binding Obligation .................................. 16
5.5 Intangible Property ........................................................................................17
5.6 Capital ............................................................................................................
5.7 Material Litigation .........................................................................................17
5.8 Title; Security Interests of FINOVA ..............................................................17
.ODMAVCD0=M V _DOC.41 600
5.9 Restrictive Agreements; Labor Contracts ......................................................17
5.10 Laws ...............................................................................................................17
5.11 Consents .........................................................................................................17
5.12 Defaults .......................................................................................................... 17
5.13 Financial Condition ........................................................................................ 17
5.14 ER1SA ............................................................................................................ 17
5.15 Taxes .............................................................................................................. 17
5.16 Locations; Federal Tax ID No ....................................................................... 17
5.17 Business Relationships .................................................................................. 18
5.18 Reaffirmations ................................................................................................ 18
5.19 Year 2000 ....................................................................................................... 18
6. COVENANTS ...........................................................................................................18
6.1 Affirmative Covenants ...................................................................................18
6.1.1 Taxes ..................................................................................................18
6.1.2 Notice of Litigation ............................................................................18
6.1.3 ERISA ................................................................................................18
6.1.4 Change in Location ............................................................................ 18
6.1.5
6.1.6
6.1.7
6.1.8
6.1.9
6.1.10
6.1.11 Corporate Existence ...........................................................................
Labor Disputes ...................................................................................
Violations of Law ..............................................................................
Defaults ..............................................................................................
Capital Expenditures ..........................................................................
Books and Records ............................................................................
Leases; Warehouse Agreements ........................................................ 18
18
18
18
18
18
19
6.1.12
6.1.13 Additional Documents .......................................................................19
Financial Covenants ...........................................................................19
6.2 Negative Covenants ......................................................................................19
6.2.1 Mergers ..............................................................................................19
6.2.2 Loans ..................................................................................................19
6.2.3 Dividends ...........................................................................................19
6.2.4 Adverse Transactions .........................................................................19
6.2.5 Indebtedness of Others .......................................................................19
6.2.6 Repurchase .........................................................................................19
6.2.7 Name ..................................................................................................19
6.2.8
6.2.9 Prepayment ........................................................................................19
Capital Expenditure ...........................................................................19
6.2.10 Compensation ....................................................................................20
6.2.11 Indebtedness .......................................................................................20
6.2.12 Affiliate Transactions .........................................................................20
6.2.13 Nature of Business .............................................................................20
6.2.14 FINOVA's Name ................................................................................20
6.2.15 Margin Security ........... ..... ....................................................... .......... 20
6.2.16 Real Property .....................................................................................20
6.2.17 Year 2000 ...........................................................................................20
ODMAWCD=JLMEF DO(.ti11101'J
DEFAULT AND REMEDIES ...................................................................................20
7.1 Events of Default ...........................................................................................20
7.2 Remedies ............................................................................ ...................21
7.3 Confession of Judgment .................................................................................22
7.4 Standards for Determining Commercial Reasonableness ..............................22
8. EXPENSES AND INDEMNITIES ...........................................................................23
8
1 E
. xpenses .......................................................................... .................
23
8.2 Environmental Matters .................................................... .............
..............................23
9. MISC
9.1
2
9 ELLANEOUS ....................................................................
Examination of Records; Financial Reporting .................
T
T
i
i ..............................24
..............................24
. erm;
erm
nat
on ........................................................... ...........
25
9
3 R ...................
.
9.4
9.5
9.6 ecourse to Security; Certain Waivers ............................
No Waiver by FINOVA ...................................................
Binding on Successor and Assigns ..................................
Severability ...................................................................... ..............................25
..............................25
..............................25
....................
.
25
9
7 A
d .
........
.
9.8 men
ments; Assignments .............................................
Integration ........................................................................ ......
..............................25
9.9
10
9 Survival ............................................................................
E
id ..............................26
.
9.11
9.12 v
ence of Obligations ...................................................
Loan Requests ..................................................................
Notices ............................................................................. ..............................26
..............................26
..............
.
26
9
13 B
k .
..............
. ro
erage Fees ................................................................. ..................
....
.
26
9.14 Disclosure ........................................................................ .
.
.....
....................
.
.
.
26
9.15 Publicity ........................................................................... .
.
.
....
..............................26
9.16 Captions ......................................................................... ..............................26
9.17
9
18 Injunctive Relief ...............................................................
C ..............................26
.
9.19
9
20 ounterparts; Facsimile Execution ..................................
Construction .....................................................................
i ..............................27
..............................27
.
9.21
9.22
9.23
9.24
9.25 T
me of Essence ...............................................................
Limitation of Actions .......................................................
Liability ............................................................................
Notice of Breach by FINOVA .........................................
Application of Insurance Proceeds . ...............................
Power of Attorney ............................................................ ..............................27
.............................27
..............................27
.............................. 27
..............................27
..............................28
9.26
9.27 Governing Law; Waivers .................................................
MUTUAL WAIVER OF RIGHT TO JURY TRIAL ...... ..............................28
..............................28
oowAvcDOCUMEP Docurwru
TILTS LOAN AND SECURITY AGREEMENT (collectively with the Schedule to Loan Agreement (the
"Schedule") attached hereto, the "Agreement") dated the date set forth on the cover page, is entered into by and
between the borrower named on the cover page (jointly and severally, the "Borrower"), whose address is set forth on
the cover page and FINOVA Capital Corporation ("FINOVA"), whose address is I I I West 40th Street, 14th
Floor, New York, NY 10018.
1. DEFINITIONS.
1.1 Definemts. As used in this
Agreement, the following terms have the definitions
set forth below:
"Acquisition" has the meaning set forth in
Section 4.l(ce) hereof.
"Armisition Documents" has the meaning
set forth in Section 4.1(ce) hereof.
"AW has the meaning set forth in Section
4.l(z) hereof.
"Additional Sums" has the meaning set forth
in Section 2.9(s) hereof.
"Atti&W means any Person controlling,
controlled by or under common control with
Borrower. For purposes of this definition. "control"
means the possession, directly or indirectly, of the
power to direct or cause direction of the management
and policies of any Person. whether through
ownership of common or preferred stock or other
equity interests, by contract or otherwise. Without
limiting the generality of the foregoing, each of the
following shall be an Affiliate: any officer, director,
employee or other agent of Borrower, any
shareholder, member or subsidiuy of Borrower, and
any other Person with whom or which Borrower has
common shareholders, off(cen or directors.
"Agreement" has the meaning set forth in
the preamble.
"Applicable Law" has the meaning set forth
in Section 8.2(a) hereof.
"Amlicable Usury law" has the meaning
set forth in Section 2.9(b) hereof.
"AWrnment of Life Insurance" has the
meaning set forth in Section 4.1(u) hereof.
"Blocked Account" has the meaning set
forth in Section 2.10(x) hereof.
"Business Day" means any day on which
commercial banks in both New York New York and
Phoenix. Arizona are open for business.
"Capital Expenditures" means all
expenditures made and liabilities incurred for the
acquisition of any fixed asset or improvement,
replacement, substitution or addition thereto which
has a useful life of more than one year and including,
without limitation. those arising in connection with
Capital Lesses.
"Capital Lease" means any lease of property
by Borrower that, in accordance with GAAP, should
be capitalized for financial reporting purposes and
reflected as a liability on the balance sheet of
Borrower.
"Closing Date" means the date of the initial
advance made by FINOVA pursuant to this
Agreement.
"C means the Uniform Commercial
Code as adopted and in effect in the State of Arizona
from time to time.
"Collateral" has the meaning set forth in
Section 3.1 hereof.
"Collateral Moritorine Fee" has the
meaning set forth in the Schedule.
"Current Asset" at any date means the
amount at which the current asset of Borrower
would be shown on a balance sheet of Borrower as at
such date, prepared in accordance with GAAP,
12i4ritild that amount due from Affiliates and
investment in Affiliates shall be excluded therefrom.
"Current Liabilities" at any date means the
amount at which the current liabilities of Borrower
would be shown on a balance sheet of Borrower as at
such date, prepared in accordance with GAAP.
"Deposit Account" has the meaning set
forth in Section 9105 of the Code.
"Dominion Account" has the meaning set
forth in Section 2.10(x) hereof.
ODMATCDOMAMEF-DOCA2801\5
FINOVA Loan and Security Aereement
"Famines Before Interest. Taxes.
Depreciation and Amortization" for any fiscal period
of Borrower means the net income of Borrower for
such fiscal period, plus interest expense, depreciation
and amortization and provision for income taxes for
such fiscal period, and minus nonrecurring
miscellaneous income and expenses, all calculated in
accordance with GAAP.
"Eligible inventory" means Inventory which
FINOVA, in its Permitted Discretion, deems Eligible
Inventory, based on such considerations as FINOVA
my from time to time deem appropriate. Without
limiting the generality of the foregoing, no Inventory
shall be Eligible inventory unless, in FINOVA's
Permitted Discretion, such Inventory (!) consists of
finished goods, in good, new and salable condition
which tae not obsolete or unmerchanuble, and are
not comprised of work in process, packaging
materials or supplies; (ifi) meets all standards
imposed by any governmental agency or authority;
(iv) conforms in all respects to the warranties and
representations set forth herein; (v) is at all times
subject to FINOVA's duly perfected, fast priority
security interest; and (vi) is situated at a location in
compliance with Section 5.16 hereof.
"?jjgble Rtteivab!es" means Receivables
arising in the ordinary course of Borrowers business
from the We of goods or rendition of services, which
FINOVA, in its Permitted Discretion, shall deem
eligible based on such considerations as FINOVA
may from time to time deem appropriate. Without
limiting the foregoing, a Receivable shall not be
deemed to be an Eligible Receivable if (i) the account
debtor his failed to pay the Receivable within a
period of sixty (60) days after invoice date, to the
ex=t of any amount remaining unpaid after such
period; (ii) the account debtor his failed to pay more
than 25% of all outstanding Receivables owed by it
to Borrower within sixty (60) days afkr invoice date;
(iii) the account debtor is an Affiliate of Borrower;
(iv) the goods relating thereto tae placed on
consignment, guarwteed sale, "bill and hold."
•COD' or other temu pursuant to which payment by
the account debtor may be conditionA4 (v) die
account debtor is not located in the United Slates,
unless the Receivable is supported by a letter of
credit or other form of guaranty or security, in cacti
case in form and substance satisfactory to FINOVA;
(vi) the account debtor is the United States or any
department. agency or instrumentality thereof or any
State, city or municipality of the United Suter, (vu)
Borrower is or may become liable to the account
debtor for goods sold or services rendered by the
account debtor to Borrower; (vio) the account
debtoes total obligations to Borrower exceed 15% of
all Eligible Receivables, to the extent of such excess;
(ix) the account debtor disputes liability or makes any
claim with respect thereto (up to the amount of such
liability or claim), or is subject to any insolvency or
bankruptcy proceeding, or becomes insolvent, fails or
goes out of a material portion of its business; (x) the
amount thereof consists of late charges or finance
charges; (xi) the amount thereof consists of a credit
balance more than sixty (60) days put due; (xis) the
face amount thereof exceeds $10,000, unless
accompanied by evidence of shipment of the goods
telating thereto satisfactory to FINOVA in its
Permitted Discretion; (xiii) the invoice constitutes ¦
progress billing on a project not yet completed,
except that the final billing at such time as the matter
his been completed and delivered to the customer
may be deemed an Ehgtble Receivable; or (xiv) the
amount thereof is not yet represented by an invoice or
hill issued in the name of the applicable account
debtor.
"Pqudi fen(" means all of Borrowers
present and hereafter acquired machinery, molds,
machine tools, motors, furniture, equipment,
furnishings, fixtures, trade fixtures, motor vehicles,
tools. parts. dyes, jigs, goods and other tangible
personal property (other than Inventory) of every
kind and description used in Borrower's operations or
owned by Iorrower and any interest in any of the
foregoing, and all atuchmeits, acceswries,
accessions, replacements, substitutions, additions or
improvements to any of the foregoing, wherever
located.
"Lnvmnnmcji ,I Costs" has the meaning set
fordo in Section 9.2(b) hereof.
");(ISA" means the Employment
Retirement Income Security Act of 1974, as
amended, and the regulations thereunder.
"pRISA Affiliate" means each trade or
business (whether or not incorporated and whether or
not foreign) which is or may hereafter become a
member of a group of which Borrower is a member
and which is treated as a single employer under
FRISA Section 4001(bx1), or IRC Section 414.
"Event of Default" means any of the events
set forth in Section 7.1 of this Agreement.
"Exam ination Fee" his the meaning set forth
in the Schedule.
ODMAV(9OC5'aMel Dg(1rrrOw
FINOVA Loan and Security Agreement
"Excess Availability" means, as of the date
of determination thereof, the amount by which the
average daily total principal balance of the Revolving
Credit Loans facility which Borrower would be
permitted to have outstanding over the prior 30 days,
based on the formulas and reserves set forth in the
Schedule, exceeds the sum of the Receivable Loans
and the Inventory Loans then actually outstanding,
such excess then being reduced by an amount
necessary to provide for the payment of all accounts
payable of Borrower which are more than 30 days
put due date and all book overdrafts.
property, rights as a licensor or licensee of any kind,
royalties, telephone numbers, proprietary
information, purchase orders, and all insurance
policies and claims (including without limitation
credit, liability, property and other insurance) tax
refunds and claims, computer programers, discs, tapes
and tape riles, claims under guaranties, security
interests or other security held by or granted to
Borrower to secure payment of any of the
Receivables by an account debtor, all rights to
indemnification and all other intangible property of
every kind and nature (other than Receivables).
"Excess Cash Flow" means Operating Cash
Flow/Permitted less each of (i) Total Contractual
Debt Service; (ii) Management Fees actually paid, to
the extent permitted hereunder, and (iii) Preferred
Stock Dividends actually paid, to the extent permitted
hereunder.
"Facility Fee" has the meaning set forth in
the Schedule.
TWOVA Affiliate" has the meaning set
forth in Section 9.22 hereof.
"G&Ar means generally accepted
accounting principles in the United States of America
as in effect from time to time as set forth in the
opinions and pronouncements of the Accounting
Principles Board and the American Institute of
Certified Public Accountants and the statements and
pronouncements of the Financial Accounting
Standards Boards which are applicable to the
circumstances as of the date of determination
consistently applied, except that, for the financial
covenants set forth in this Agreement, GAAP shall be
determined on the basis of such principles in effect
on the date hereof and consistent with those used in
the preparation of the audited financial statements
delivered to Lender prior to the date hereof.
'General In asbles" means all general
intangibles of Borrower, whether now owned or
bereafter created or acquired by Borrower, including,
without limitation, all choses in action, causes of
action, corporate or other business records, Deposit
Accounts, inventions, designs, drawings, blueprints,
Trademarks, Licenses and Patents, names, trade
secrets, goodwill, copyrights, registrations, licenses,
franchises, customer lists, security and other
deposits, rights in all litigation presently or hereafter
pending for any cause or claim (whether in contract,
tort or otherwise), and all judgments now or hereafter
arising therefrom, all claims of Borrower against
FINOVA, rights to purchase or sell real or personal
"Guarantor(s)" has the meaning set forth in
the Schedule.
"Hazardous Substance" his the meaning set
forth in Section 8.2(s) hereof.
"Indebtedness" means all of Borrower's
present and future obligations, liabilities, debts,
claims and indebtedness, contingent, fixed or
otherwise, however evidenced, crated, incurred,
acquired, owing or arising, whether under written or
oral agreement, operation of law or otherwise, and
includes, without limiting the foregoing (i) the
Obligations, (ii) obligations and liabilities of any
Person secured by alien, claim, encumbrance or
security interest upon property owned by Borrower,
even though Borrower has not assumed or become
liable therefor, (iii) obligations and liabilities created
or arising under any lease (including Capital Leases)
or conditional sales contract or other title retention
agreement with respect to property used or acquired
by Borrower, even though the rights and remedies of
the lessor, seller or lender are limited to repossession,
(iv) all unfunded pension fund obligations and
liabilities and (v) deferred taxes.
"Initial Term" has the meaning set forth on
the Schedule.
"Insurance Collateral" has the meaning set
forth in Section 4.1(u) hereof.
*Inventory" means all of Borrowees now
owned and hereafter acquired goods, merchandise or
other personal property, wherever located, to be
furnished under any contract of service or held for
sale or lease, all raw materials, work in process,
finished goods and materials and supplies of any
kind, nature or desorption which are or might be
used or consumed in Borrowers business or used in
connection with the manufacture, packing, shipping,
advertising, selling or finishing of such goods,
merchandise or other personal property, and all
0DMAVCD0C4aMEF DOCUrrON
EMOVA Loan and Security Agreement
documents of title or other documents representing
them
"Inventory Loans" has the meaning set forth
in the Schedule.
"Mo means the Internal Revenue Code of
1986, as amended, and the regulations thereunder.
"Life Insurance Policy" has the meaning set
forth in Section 4.1(u) hereof.
%" has the meaning set forth in Section
2.2 hereof.
"Loan Document" means, collectively, this
Agreement, any note or notes executed by Borrower
and payable to FINOVA, and any other present or
future agreement entered into in connection with this
Agreement, together with all alterations,
amendment, changes, extensions, modifications,
refinancings, refundings, renewals, replacement,
restatement, or supplement, of or to any of the
foregoing.
"Loan Party" means Borrower, each
Guarantor, each Subordinating Creditor and each
other party (other than FINOVA) to any Loan
Document
"?nan Reserves" means, u of any date of
determination, such amounts as FINOVA may from
time to time establish and revise in good faith
reducing the amount of Revolving Credit Loans and
Letters of Credit which would otherwise be available
to Borrower under the lending formula(s) provided in
the Schedule: (a) to reflect event, conditions,
contingencies or risks which, as determined by
FINOVA in good faith, do or may affect either (i) the
Collateral or any other property which is security for
the Obligations or it value, (ii) the assets, business or
prospects of Borrower or any Guarantor or (its) the
security interest and other rights of FINOVA in the
Collateral (including the enforceability, perfection
and priority thereof) or (b) to reflect FINOVA's good
faith belief that any collateral report or financial
information furnished by or on behalf of Borrower or
any Guarantor to FINOVA is or may have been
incomplete, inaccurate or misleading in any material
respect or (c) in respect of any state of facts which
FINOVA determines in good faith constitutes an
Event of Default or may, with notice or passage of
time or both, constitute an Event of Default.'
I.ose Year" means each twelve month
period commencing on the Closing Date.
"Maximum Interest Rate" has the meaning
set forth in Section 2.9(e) hereof.
"Minimum Interest Charge" has the meaning
set forth in the Schedule.
"Multiemplover Plan" means a
"multiemployer plan" as defined in ERISA Sections
3(37) or 4001(x)(3) or IRC Section 414(f) which
covers employees of Borrower or any ERISA
Affiliate.
"Net Worth" at any date muss the
Borrowers net worth as determined in accordance
with GAAP.
"Obliatitions" means all present and future
loans, advances, debt, liabilities, obligations,
covenants, duties and indebtedness at any time owing
by Borrower to FINOVA, whether evidenced by this
Agreement, any note or other instrument or
document, whether arising from an extension of
credit, opening of a letter of credit, banket's
acceptance, loan, guaranty, indemnification or
otherwise, whether direct or indirect (including,
without limitation. those acquired by assignment and
any participation by FINOVA in Borrower: debt
owing to others), absolute or contingent, due or to
become due, including, without limitation, all
interest, charges, expenses, feu, attorney's fees,
expert witness fees, Examination Fee, letter of credit
fees, Collateral Monitoring Fee, Closing Fee, Facility
Fee, Termination Fee, Minimum Interest Charge and
any other sums chargeable to Borrower hereunder or
under any other agreement with FINOVA.
"Oomflnng Cash F1owfActuall" Mans, for
any period, Borrowers net income or loss (excluding
the effect of any extraordinary gains or losses),
determined in accordance with GAAP, Wa Of MilM
each of the following items, to the extent deducted
from or added to the revenues of Borrower in the
calculation of net income or loss: (i) depreciation;
(ii) amortization and other non-cash charges; (W)
interest expense paid or accrued; (iv) total federal and
state income tax expense determined as the accrued
liability of Borrower in respect of sucn period,
regardless of what portion of such expense has
actually been paid by Borrower during such period;
and (v) Management Fm paid, to the extent
permitted hereunder, and after deduction for each of
(a) federal and state income taxes, to the extent
actually paid during such period, (b) any non-cash
income; and (c) all actual Capital Expenditures made
during such period and not financed.
anMAWDOCTA EF DOClrraoN 4
FINOVA Loan and Security Agreement
"operating Cash Flow/Pemutted" means,
for any period Borrowees net income or loss
(excluding the effect of any extraordinary gains or
losses), determined in accordance with GAAP, glo
or beach of the following items, to the extent
deducted from or added to the revenues of Borrower
in the calculation of net income or loss: (i)
depreciation; (ii) amortization and other non-cash
charges; (tai) interest expense paid or accrued; (iv)
total federal and state income tax expense determined
as the accrued liability of Borrower in respect of such
period regardless of what portion of such expense
has actually been paid by Borrower during such
period; and (v) Management Fees and other fees paid
to Subordinating creditors. to the extent permitted
hereunder, and after deduction for each of (a) federal
and state income taxes, to the extent actually paid
during such period; (b) any non-cash income; and (c)
an permitted Capital Expenditures (without regard to
any waiver given by FINOVA with respect to any
limitation on such Capital Expenditures) actually
made during such period and not financed.
"Overadvance" has the meaning set forth in
Section 2.3.
"Qyetline has the meaning set forth in
Section 2.3.
"EB_W means the Pension Benefit
Guarantee Corporation.
"Permitted Discretion" means FINOVA's
judgment exercised in good faith based upon its
consideration of any factor which FINOVA believes
in good faith: (i) will or could adversely affect the
value of any Collateral, the enforceability or priority
of FINOVA's Bens theseon or the amount which
FINOVA would be likely to receive (after giving
consideration to delays in payment and costs of
enforcement) in the liquidation of such Collateral; (ii)
suggem that any collateral report or financial
infomution delivered to FINOVA by any Person on
behalf of the Borrower is incomplete, inaccurate or
misleading in any tuatetial respect; ((h) materially
increases the likelihood of a bankruptcy,
reorganization or other insolvency proceeding
involving the Borrower, any Loan Party or any of the
Collateral, or (iv) creates or reasonably could be
expected to create an Event of Default. In exercising
such judgment, FINOVA may consider such factors
already included in or tested by the definition of
Eligible Receivables or Eligible Inventory, as well is
any of the following: (i) the financial and business
climate of the Bornowces industry and general
macroeconomic conditions, (ii) changes in collection
history and dilution with respect to the Receivables,
(iii) changes in demand for, and pricing of, Inventory,
(iv) changes in any concentration of risk with respect
to Receivables and/or Inventory, and (v) any other
factors that change the credit risk of leading to the
Borrower on the security of the Receivables and
Inventory. The burden of establishing lack of good
faith hereunder shall be on the Borrower.
"Permitted Encumbrance" means each of the
liens, mortgages and other security interests set forth
on the Schedule.
"Person" means any individual, sole
proprietorship, partnership, joint venture, trust,
unincorporated organization, association,
corporation, limited liability company, government,
or any agency or political division thereof, or any
other entity.
"('W means any plan described in ERISA
Section 3(2) maintained for employees of Borrower
or any ERISA Affiliate, other than a Multiemployer
Plan.
"Pledoors" has the meaning set forth in
Section 4.1(cc) hereof.
"Prepared Financials" means the balance
sheets of Borrower as of the date act forth in the
Schedule in the section entitled 'Repotting
Requirements' , and as of each subsequent date on
which audited balance sheets are delivered to
FINOVA from time to tim: hereunder, and the
related statements of operations, changes in
stockholdces equity and changes in cash flow for the
periods ended on such dates.
"Prime Rate" has the meaning set forth in
the Schedule.
"Prohibited Transaction" mesas any
transaction described in Section 406 of ERISA which
is not exempt by reason of Section 408 of ERISA,
and any transaction described in Section 4975(c) of
the IRC which is not exempt by reason of Section
4975(cx2) of the IRC.
"[rogm" has the meaning set forth in
Section 8.2(a) hereof.
"Receivable Loans" has the meaning set
forth on the Schedule.
ODMAVrvocshwrF Docursow
"Receivables" means all of Borrower's now
owned and hereafter acquired accounts (whether or
not earned by performance), proceeds of any letters
of credit naming Borrower as beneficiary, contract
rights, chattel paper, instruments, documents and all
other forms of obligations at any time owing to
Borrower, all guaranties and other security therefor,
whether secured or unsecured, all merchandise
returned to or repossessed by Borrower, and all rights
of stoppage in transit and all other rights or remedies
of an unpaid vendor, lienor or secured party.
"Renewal Tenn" has the meaning set forth
on the Schedule.
"RR=ruble Event" means a reportable
event described in Section 4043 of ERISA or the
regulations thereunder, a withdrawal from a Plan
described in Section 4063 of ERISA, or a cessation
of operations described in Section 4068(f) of ERISA.
"Revolving Credit Loans" has the meaning
set forth in the Schedule.
"Reyoi ina Credit Limit" has the meaning
set forth in the Schedule.
"Revolving Interest Rate" has the meaning
set forth in the Schedule.
"Schedule has the meaning set forth in the
preamble.
"SdgC" has the meaning set forth in the
Schedule.
"Seller Noncom=le Agreement" has the
meaning set forth in the Schedule.
"Senior Contractual Debt Service" means,
for any period, the sum of payments made or required
to be made by Borrower during ouch period for (i)
interest and scheduled principal payments due on the
Term Loam, and (ii) interest only payments due on
the Revolving Credit Loans facility plus the
Collateral Monitoring Fee, the Facility Fee and the
Unused Line Fee.
*Start Date has the meaning set forth in the
Schedule.
"Stock Pledge Agreement" has the meaning
set forth in Section 4.1(ce) hereof.
'Subordinated Debt" means liabilities of
Borrower the repayment of which is subordinated, to
ODMAYCDOCSaatrF_DOCU n t0W
the payment and performance of the Obligations,
pursuant to a subordination agreement acceptable to
FTNOVA.
"Subordinating Creditor" has the meaning
set forth in the Schedule.
"Term Loans" has the meaning set forth in
the Schedule.
"Termination Fee" has the meaning set forth
in Section 9.2(d) hereof.
"Total Contractual Debt Service" means, for
any period, the sum of payments made (or, u to
clause (i) of this sentence, required to be made) by
Borrower during such period for (i) Senior
Contactual Debt Service, (ti) pursuant to the Seller
Note and/or Noncompete Agreement, and (iii)
interest and scheduled principal payments due on any
and all other Indebtedness of Borrower, including
without limitation the Subordinated Indebtedness.
"Total Facility" has the meaning set forth in
Section 2.1 hereof.
"Trademarks. Conydghts. Licenses and
patents" means all of Borrowers right, title and
interest in and to, whether now owned or hereafter
acquired: (i) trademarks, trademark registrations,
trade names, trade name registrations, and trademark
or trade name applications, including without
limitation such as arc listed on the Schedule attached
hereto and made a part herwG as the same may be
amended from time to time, and (a) renewals thereof,
(b) all income, royalties, damages and payments now
and hereafter due and/or payable with respoa thereto,
including without limitation. damages and payments
for past or future infringements thereof, (c) the right
to sue for past, present and future infringements
thereof, (d) all rights corresponding thereto
throughout the world, and (e) the goodwill of the
business operated by Borrower connected with and
symbolized by any trademarks or trade runes; (ii)
copyrights, copyright registrations and copyright
applications, including without limitation such as arc
listed on the Schedule attached hereto and made a
part hereof, as the same may be amended from time
to time, and (a) renewals thereof, (b) all income,
royalties, damages and payments now and hereafter
due and/or payable with respect thereto, including
without limitation, damages and payments for past or
future infringements thereof, (c) the right to sue for
past, present and future infringements thereof, and (d)
all rights corresponding thereto throughout the world;
(iii) license agreements, including without limitation
FINOVA Loan and Security Agreement
such as are listed on the Schedule attached hereto and
made a part hereof, and the right to prepare for sale,
sell and advertise for sale any Inventory now or
hereafter owned by Borrower and now or hereafter
covered by such licenses; and (iv) patents and patent
applications, registered or pending, including without
limitation such as are listed on the Schedule attached
hereto, together with all income, royalties, shop
rights, damages and payments thereto, the right to sue
for infiingements thereof, and all rights thereto
throughout the world and all reissues, divisions,
continuations, renewals, extensions and
continuatiom•in-part thereof.
"Unused Line Fee" has the meaning set forth
in the Schedule.
("Overadvance") in the Schedule, then Borrower
shall, upon FINOVA's demand, immediately pay to
FINOVA, in cash, the full amount of such Overline
or Overadvance which, at FINOVA's option, may be
applied to reduce the outstanding principal balance of
the Loans and/or cash collateralize all or any part of
any outstanding Letters of Credit. Without limiting
Borrower's obligation to repay to FINOVA on
demand the amount of any Overline or Overadvance,
Borrower agrees to pay FINOVA interest on the
outstanding principal amount of any Overline or
Overadvance, on demand, at the rate set forth on the
Schedule and applicable to the Revolving Credit
Loans.
2.4 Intentionally Omitted.
1.2 Other Terms. All accounting terms
used in this Agreement, unless otherwise indicated,
shall have the meanings given to such tertu in
accordance with GAAP. All other terms contained in
this Agreement, unless otherwise indicated, shall
have the meanings provided by the Code, to the
extent such terms are defined therein.
2. LOANS; INTEREST RATE AND
OTHER CHARGES.
2.1 Total Facility. Upon the terms and
conditions set forth herein and provided that no Event
of Default or event which, with the giving of notice
or the passage of time, or both, would constitute an
Event of Default, shall have occurred and be
continuing, FINOVA shall, upon Borrower's request,
make advances to Borrower from time to time in an
aggregate outstanding principal amount not to exceed
the Total Facility amount (the "Total Facility") set
forth on the Schedule hereto, subject to deduction of
reserves for accrued interest and such other reserves
as FINOVA deems proper from time to time, and less
amounts FINOVA may be obligated to pay in the
future on behalf of Borrower. The Schedule is an
integral part of this Agreement and all references to
"herein", "herewith" and words of similu import
shall for all purposes be deemed to include the
Schedule.
2.2 L&M. Advances under the Total
Facility ("j@1n11" and individually, a "LM") shall
be comprised of the amounts shown on the Schedule.
2.7 Overlines: Overadvances. If at any
time or for any reason the outstanding amount of
advances (including all Letters of Credit) extended or
issued pursuant hereto exceeds any of the dollar
limitations ("Overllne") or percentage limitations
2.5 Loan Account. All advances made
hereunder (including without limitation all advances
made by FINOVA under or in connection with any
Letter of Credit) shall be added to and deemed part of
the Obligations when made. FINOVA may from
time to time charge all Obligations of Borrower to
Borrower's loan account with FINOVA.
2.6 Interest: Fees. Borrower shall pay
FINOVA interest on the average daily outstanding
balance of the Obligations at the per annum rate set
forth on the Schedule. Borrower shall also pay
FINOVA the fees set forth on the Schedule.
2.7 Default Interest Rate. Upon the
occurrence and during the continuation of an Event
of Default, Borrower shall pay FINOVA interest on
the daily outstanding balance of the Obligations and
any L/C Fee at a rate per annum which is two percent
(2%) in excess of the rate which would otherwise be
applicable thereto pursuant to the Schedule.
2.8 Examination Fee. Borrower agrees
to pay to FINOVA the Examination Fee in the
amount set forth on the Schedule in connection with
each audit or examination of Borrower performed by
FINOVA prior to or after the date hereof. Without
limiting the generality of the foregoing, Borrower
shall pay to FINOVA an initial Examination Fee in
an amount equal to the amount set forth on the
Schedule. Such initial Examination Fee shall be
deemed fully earned at the time of payment and due
and payable upon the closing of this transaction, and
shall be deducted from any good faith deposit paid by
Borrower to FINOVA prior to the date of this
Agreement.
ODMAVCDOCS LMEF DOttilmraa\f
FINOVA Loan and Sepurity Agreement
2.9 Excess Interest.
(a) The contacted for rate of interest of
the loan contemplated hereby, without limitation,
shall consist of the following: (i) the interest rate set
forth on the Schedule, calculated and applied to the
balance of the Obligations in accordance with the
provisions of this Agreement; (ii) interest after an
Event of Default, calculated and applied to the
amount of the Obligations in accordance with the
provisions hereof; and (iii) all Additional Sums (as
herein defined), if any. Borrower agrees to pay an
effective contacted for ate of interest which is the
sum of the above-referenced elements. The
Examination Fee, attorneys fees, expert witness fees,
letter of credit fees, collateral monitoring fees,
closing fees, facility fees, Termination Fees,
Minimum Interest Charges, other charges, goods,
things in action or any other sums or things of value
paid or payable by Borrower (collectively, the
"Additional Sums"), whether pursuant to this
Agreement or any other documents or instruments in
any way Penang to this (ending transaction, or
otherwise with respect to this lending transaction,
that under any appUable law may be deemed to be
interest with respect to this lending tranuction, for
the purpose of any applicable law that may Limit the
maximum amount of interest to be charged with
respect to this (ending transaction, shall be payable
by Borrower as, and shall be deemed to be, additional
interest and for such purposes only, the agreed upon
and "contracted for ate of interest" of this lending
transaction shall be deemed to be increased by the
rate of interest resulting from the inclusion of the
Additional Sums.
(b) It is the intent of the parties to
comply with the usury laws of the State of Arizona
(the "Applicable Usury Law"). Accordingly, it is
agreed that notwithstanding any provisions to the
contrary in this Agreement, or in any of the
documents securing payment hereof or otherwise
relating hereto, in no event shall this Agreement or
such documents requite the payment or permit the
collection of interest in excess of the maximum
contract ate permitted by the Applicable Usury Law
(the "Maximum Interest Rate"). In the event (a)
any such excess of interest otherwise would be
contracted for, charged or received from Borrower or
otherwise in connection with the loan evidenced
hereby, or (b) the maturity of the Obligations is
accelerated in whole or in part, or (c) all or part of the
Obligations shall be prepaid, so that under any of
such circumstances the amount of interest contacted
for; shared or received in connection with the loan
evidenced hereby, would exceed the Maximum
Interest Rate, then in any such event (1) the
provisions of this paragraph shall govern and control,
(2) neither Borrower nor any other Person now or
hereafter liable for the payment of the Obligations
shall be obligated to pay the amount of such interest
to the extent that it is in excess of the Maximum
Interest Rate, (3) any such excess which may have
been collected shall be either applied as a credit
against the then unpaid principal amount of the
Obligations or refunded to Borrower, at FINOVA's
option, and (4) the effective ate of interest shall be
automatically reduced to the Maximum Interest Rate.
It is further agreed, without limiting the generality of
the foregoing, that to the extent permitted by the
Applicable Usury law; (i) all calculations of interest
which are made for the purpose of determining
whether such rate would exceed the Maximum
Interest Rate shall be made by amortising, prorating,
allocating and spreading during the period of the full
stated term of the loan evidenced hereby, all interest
at any time contracted for, charged or received from
Borrower or otherwise in connection with such loan;
and (ii) in the event that the effective ate of interest
on the loan should at any time exceed the Maximum
Interest Rate, such excess interest that would
otherwise have been collected had there been no
ceiling imposed by the AppUable Usury Law shall
be paid to FINOVA from time to time, if and when
the effective interest ate on the loan otherwise Calls
below the Maximum Interest Rate, to the extent that
interest paid to the date of calculation does not
exceed the Maximum Interest Rate, until the entire
amount of interest which would otherwise have been
collected had there been no ceiling imposed by the
Applicable Usury Law has been paid in full.
Borrower further agrees that should the Maximum
Interest Rate be increased at any time hereafter
because of a change in the Appheable Usury Law,
then to the extent not prohibited by the Applicable
Usury Law, such increases shall apply to all
indebtedness evidenced hereby regardless of when
incurred; but, again to the extent not prohibited by
the Applicable Usury Law, should the Maximum
Interest Rate be decreased because of a change in the
Applicable Usury Law, such decreases shad not
apply to the indebtedness evidenced hereby
regardless of when incurred.
2.10 Principal Pavmens: Proceeds of
Collateral.
(a) Principal Payments. Except when
evidenced by notes or other instruments issued or
made by Borrower to FINOVA specifically
containing payment provisions which are in conflict
with this Section 2.10 (in which event the confUcting
nDMAVCDOCS"Er DOC%4I909J
FINOVA Loan and Security Agreement
provisions of said notes or other uu:ruments shall
govern and control), that portion of the Obligations
consisting of principal payable on account of Loans
shall be payable by Borrower to FINOVA
immediately upon the earliest of 0) the receipt by
FINOVA or Borrower of any proceeds of any of the
Collateral, to the extent of said proceeds, (ii) the
occurrence of an Event of Default in consequence of
which FINOVA elects to accelerate the maturity and
payment of such loam, or (iii) any termination of this
Agreement pursuant to Section 9.2 hereof; provided.
however. that any Overadvance or OverUne shall be
payable on demand pursuant to the provisions of
Section 2.3 hereof.
(b) Collections. Until FINOVA notifies
Borrower to the contrary, Borrower may make
collection of all Receivables for FINOVA and shall
receive all such payments or sums as trustee of
FINOVA and immediately deliver all such payments
or sums to FINOVA in their original form, duly
endorsed in blank or cause the same to be deposited
into a Blocked Account or Dominion Account.
FINOVA or its designee may, at any time, notify
account debtors that the Receivables have been
assigned to FINOVA and of FINOVA's security
interest therein, and may collect the Receivables
directly and charge the collection costs and expenses
to Borrower's loan account. Borrower agrees that, in
computing the charges under this Agreement, all
items of payment shall be deemed applied by
FINOVA on account of the Obligations two (2)
Business Days after receipt by FINOVA of good
funds which have been finally credited to FINOVA's
account, whether such funds arc received directly
from Borrower or from the Blocked Account bank or
the Dominion Account bank pursuant to Section
2.10(c) hereof, and this provision shall apply
regardless of the amount of the Obligations
outstanding or whether any Obligations are
outstanding; provided, that if any such good funds are
received after 12:00 p.m. noon (New York time) on
any Business Day or at any time on any day not
constituting a Business Day, such funds shall be
deemed received on the immediately following
Business Day. FINOVA is not, however, required to
credit Borrower's account for the amount of any item
of payment which is unsatisfactory to FINOVA in its
Permitted Discretion and FINOVA may charge
Borrower's loan account for the amount of any item
of payment which is returned to FINOVA unpaid
(e) F•tsbli•hment of a L ockbox Account
or Dominion Account. Unless Borrower shall be
otherwise directed by FINOVA in writing, Borrower
shall cause all proceeds of Collateral to be deposited
into a lockbox account, or such other "blocked
account" as FINOVA may require (each, a "{locked
Account") pursuant to an arrangement with such
bank as may be selected by Borrower and be
acceptable to FINOVA which proceeds, unless
otherwise provided herein, shall be applied in
payment of the Obligations in such order as FINOVA
determines in its Permitted Discretion. Borrower
shag issue to any such bank an irrevocable letter of
instruction directing said bank to transfer such funds
so deposited to FINOVA, either to any account
maintained by FINOVA at said bank or by wire
transfer to appropriate account(s) of FINOVA. All
funds deposited in a Blocked Account shall
immediately become the sole property of FINOVA
and Borrower shall obtain the agreement by such
bank to waive any offset rights against the funds to
deposited. FINOVA assumes no responsibility for
any Blocked Account arrangement, including without
limitation, any claim of accord and satisfaction or
release with respect to deposits accepted by any bank
thereunder. Alternatively, FINOVA may establish
depository accounts in the name of FINOVA at a
bank or banks for the deposit of such funds (each, a
"Dominion Account") and Borrower shag deposit all
proceeds of Receivables and all cash proceeds of any
sale of Inventory or, to the extent permitted herein,
Equipment or cause same to be deposited, in kind, in
such Dominion Accounts of FINOVA in lieu of
depositing same to Blocked Accounts, and, unless
otherwise provided herein, all such funds shag be
apphed by FINOVA to the Obligations in such order
as FINOVA determines in its Permitted Discretion.
(d) Payments Without Deductions.
Borrower shaU pay principal, interest, and all other
amounts payable hereunder, or under any other Loan
Document, without any deduction whatsocver,
including, but not limited to, any deduction for any
setoff or counterclaim.
(e) Monthly Accountings. FINOVA
shall provide Borrower monthly with an account of
advances, charges, expenses and payments made
p.rsuant to this Agreement. Such account shill be
deemed correct, accurate and binding on Borrower
and an account sated (except for reverses and
reappUcatiom of payments made and corrections of
errors discovered by FINOVA), unless Borrower
notifies FINOVA in writing to the contrary within
thirty (30) days after each account is tendered,
describing the nature of any alleged errors or
admissions.
2.11 Application of Collateral. Except as
otherwise provided herein, FINOVA shall have the
ODMAVCVOCSxMEF DOCU2109J
continuing and exclusive right to apply or reverse and
reapply any and all payments to any portion of the
Obligations in such order and manner as FINOVA
shall determine in its Permitted Discretion. To the
extent that Borrower makes a payment or FINOVA
receives any payment or proceeds of the Collateral
for Borrower's benefit which is subsequently
invalidated, declared to be fraudulent or preferential,
set aside or required to be repaid to a trustee, debtor
in possession, receiver or any other parry under any
bankruptcy law, common law or equitable cause, or
otherwise, then, to such extent, the Obligations or
part thereof intended to be satisfied shall be revived
and continue as if such payment or proceeds had not
been received by FINOVA.
2.12 Application of Payments. The
amount of all payments or amounts received by
FINOVA with respect to the Loan shall be applied to
the extent applicable under this Agreement: (i) rust,
to accrued interest through the date of such payment,
including any Default Interest; (ii) then, to any late
fees, overdue risk assessments, Examination Fee and
expenses, collection fees and experues and any other
fees and expenses due to FINOVA hereunder, and
(iii) last, the remaining balance, if any, to the unpaid
principal balance of the Loan; provided however,
while an Event of Default exists under this
Agreement, or under any other Loan Document, each
payment hereunder shall be (1) held as cash collateral
to secure Obligations relating to any Letter of Credit
or other contingent obligations arising under the Loan
Documents and/or (2) applied to amounts owed to
FINOVA by Borrower as FINOVA in its Permitted
Discretion may determine. In calculating interest and
applying payments as set forth above: (a) interest
shall be calculated and collected through the date a
payment is actually applied by FINOVA under the
terms of this Agreement; (b) interest on the
outstanding balance shall be charged during any
grace period permitted hereunder, (c) at the end of
each month, all accrued wA unpaid interest and other
charges provided for hereunder shall be added to the
principal balance of the Loan; and (d) to the extent
that Borrower makes a payment or FINOVA receives
any payment or proceeds of the Collateral for
Borrower's benefit that is subsequently invalidated,
set aside or required to be repaid to any other Person,
then, to such extent, the Obligations intended to be
satisfied shall be revived and continue as if such
payment or proceeds had not been received by
FINOVA and FINOVA may adjust the Loan balances
as FINOVA. in its Permitted Discretion, deems
appropriate under the circumstances.
2.13 Intentionally Omitted.
3, SECURITY.
3.1 Security Interest in the Collateral.
To secure the payment and performance of the
Obligations when due. Borrower hereby grants to
FINOVA a first priority security interest (subject
only to Perrnitted Encumbrances) in all of Borrowers
now owned or hereafter acquired or arising
Inventory, Equipment, Receivables, real property, life
insurance policies and the proceeds thereof,
Trademarks, Copyrights, Licenses and Patents,
Borrowers rights, but not its obligations, under the
Acquisition Documents, Investment Property (as
defined in Section 9.115 of the Code) and General
intangibles, including, without limitation, all of
Borrower's Deposit Accounts, money, any and all
property now or at any time hereafter in FINOVA's
possession (including claims and credit balances),
and all proceeds (including proceeds of any insurance
policies, proceeds of proceeds and claims against
third parties), all products and all books and records
and computer data related to any of the foregoing (all
of the foregoing, together with all other property in
which FINOVA may be granted a lien or security
interest, is referred to herein, collectively, as the
"Collateral").
3.2 Perfection and Protection of Security
Interest. Borrower shall, at is expense, take all
actions requested by FINOVA at any time to perfect,
maintain, protect and enforce FINOVA's fast priority
security interest and other rights in the Collateral and
the priority thereof from time to time, including,
without limitation, (i) executing and filing financing
or continuation statements and amendments thereof
and executing and delivering such documents and
rides in connection with motor vehicles as FINOVA
shall require, all in form and substance satisfactory to
FINOVA, (ii) maintaining a perpetual inventory and
complete and accurate stock records, (iii) delivering
to FINOVA warehouse receipts covering any portion
of the Collateral located in warehouses and for which
warehouse receipts are issued, and transferring
inventory to warehouses designated by FINOVA, (iv)
placing notations on Borrower's books of aecoum to
disclose FINOVA's security interest therein and (v)
delivering to FINOVA all letters of credit on which
Borrower is named beneficiary. FINOVA may file,
without Borrower's signature, one or more financing
statements disclosing FINOVA's security interest
under this Agreement. Borrower agrees that a
carbon. photographic, photostatic or other
reproduction of this Agreement or of a financing
statement is sufficient as a financing statement. If
any Collateral is at any time in the possession or
ODMAVCDOMAMrl_DOCA2904\5 10
control of any warehouseman. bailee or any of
Borrower's agents or processors, Borrower shall
notify such Person of FINOVA's security interest in
such Collateral and upon FINOVA's request, instruct
them to hold all such Collateral for FINOVA's
account subject to FINOVA's instructions. From
time to time, Borrower shall, upon FINOVA's
request, execute and deliver confirmatory written
instruments pledging the Collateral to FINOVA, but
Boroweet failure to do so shall not affect or limit
FINOVA's security interest or other rights in and to
the Collateral. Until the Obligations have been fully
satisfied and FINOVA's obligation to make further
advances hereunder has terminated, FINOVA's
security interest in the Collateral shall continue in full
force and effect.
3.3 Preservation of Collateral. FINOVA
may, in its Permitted Discretion, at any time
discharge any hen or encumbrance on the Collateral
or bond the same, pay any insurance, maintain
guards, pay any service bureau, obtain any record or
take any other action to preserve the Collateral and
charge the cost thereof to Borrower's loan account as
an Obligation.
3.4 Insurance. Borrower will nuintain
and deliver evidence to FINOVA of such insurance
as is required by FINOVA, written by insurers, in
amounts, and with lendees loss payee, additional
Insured, and other endorsements, satisfactory to
FINOVA. All premiums with respect to such
insurance shall be paid by Borrower as and when
due. Accurate and wed copies of the policies
shaU be delivered by Borrower to FINOVA. If
Borrower fails to comply with this Section, FINOVA
may (but shall not be required to) procure such
insurance and endorsements at Borowces expense
and charge the cost thereof to Borowees loan
account as an Obligation.
3.5 Collateral Reporting: Inventory.
(a) Invoice. Borrower shall not relate
any invoice or sale from the original date thereof or
make Wes on extended terms beyond those
customary in Borrower's industry, or otherwise
extend or modify the term of any Receivable. If
Borrower becomes aware of any matter affecting any
Receivable, including information affecting the credit
of the account debtor thereon, Borrower shall
promptly notify FINOVA in writing. Borrower shall
sequentially number each invoice.
(b) instruments. In the event any
Receivable is or becomes evidenced by a promissory
note, trade acceptance or any other instrument for the
payment of money, Borrower shall immediately
deliver such instrument to FINOVA appropriately
endorsed to FINOVA and, regardless of the form of
any presentment, demand, notice of dishonor, protest
and notice of protest with respect thereto, Borrower
shall remain liable thereon unul such instrument is
paid in full.
(c) Physical Inventory. Borrower shall
conduct a physical count of the inventory at such
intervals as FINOVA requests and promptly supply
FINOVA with a copy of such accounts accompanied
by a report of the value (calculated at the lower of
cost or market value on a runt in, first out basis) of
the Inventory and such additional information with
respect to the Inventory as FINOVA may request
from time to time.
(d) Returns. For so long as no Event of
Default has occurred and is continuing and subject to
the provisions of Section 3.6(b), if any account
debtor returns any Inventory to Borrower in the
ordinary course of its business, Borrower shall
promptly determine the reason for such return and
promptly issue a credit memorandum to the account
debtor (sending a copy to FINOVA) in the
appropriate amount In the event any attempted
retum occurs after the occurrence of any Event of
Default, Borrower shall (i) bold the returned
Inventory in trust for FINOVA, (H) segregate all
returned Inventory from all of Borowees other
property, (iii) conspicuously label the returned
Inventory as FINOVA's property, and
(iv) immediately notify FINOVA of the return of any
inventory, specifying the reason for such return, the
location and condition of the returned Inventory, and
on FINOVA's request deliver such returned Inventory
to FINOVA.
(e) Borrower shall not consign any
Inventory.
3.6 Receivables.
(a) Eligibility. (i) Borrower represents
and warrants that each Receivable coven and shall
cover a bona fide sale or lease and delivery by it of
goods or the rendition by it of services in the ordinary
course of its business, and shau be for a liquidated
amount and FINOVA's security interest shall not be
subject to any offset, deduction, counterclaim, rights
of return or cancellation, lien or other condition If
any representation or warranty herein is breached as
to any Receivable or any Receivable ceases to be an
Eligible Receivable for any reason other than
uosuvCDOCSxstrr DWars0M
payment thereof, then FINOVA may, in addition to
its other rights hereunder, designate any and all
Receivables owing by that account debtor as not
Eligible Receivables; provided. that FINOVA shall in
any such event retain its security interest in all
Receivables, whether or not Eligible Receivables,
until the Obligations have been fully satisfied and
FINOVA's obligation to provide loans hereunder has
terminated.
(ii) FINOVA at any time shall be entitled to
(i) establish and increase or decrease Loan Reserves
against Eligible Receivables and Eligible Inventory,
(ii) reduce the advance rates in the Schedule or
restore such advance rates to any level equal to or
below the advance rata set forth in the Schedule or
(iii) impose additional restrictions (or eliminate the
same) to the standards of eligibility set forth in the
definitions of "Eligible Receivables" and "Eligible
Inventory," in the exercise of its Permitted
Discretion. FINOVA may but shall not be required
to rely on the schedules actor reports delivered to
FINOVA in connection herewith in determining the
then eligibility of Receivables and Inventory.
Reliance thereon by FINOVA from time to time shall
not be deemed to limit the right of FINOVA to revise
advance rata or standards of eligibility as provided
above.
(b) Disputes. Borrower shall notify
FINOVA promptly of all disputes or claims and settle
or adjust such disputes or claims at no expense to
FINOVA, but no discount, creait or allowance stall
be granted to any account debtor and no recurs of
merchandise stall be accepted by Borrower without
FINOVA's consent, except for discounts, credits and
allowances made or given in the ordinary course of
Borrower's business. FINOVA may, at any time after
the occwTc= of an Event of Default, settle or adjust
disputes or claims directly with account debtors for
amounts and upon terms which FINOVA considers
advisable in its remable credit judgment sad, in all
cases, FINOVA shall credit Botrower's loan account
with only the net amounts received by FINOVA in
payment of any Receivables.
3.7 FcutiRmenl Borrower shall keep and
maintain the Equipment in good operating condition
and repair and nuke all necessary replacements
thereto to maintain and preserve the value and
operating efficiency thereof at all times consistent
with Borrowers past practice, ordinary wear and tear
excepted. Borrower shall not permit any item of
Equipment to become a future (other than a trade
future) to real estate or an accession to other
property.
3.8 Other Liens: No Disomition of
Collat. Borrower represents, warrants and
covenants that except for FINOVA's security interest,
Permitted Encumbrances, and such other liens,
claims and encumbrances as may be permitted by
FINOVA in its Permitted Discretion from time to
time in writing, (a) all Collateral is and shall continue
to be owned by it free and clear of all liens, claims
and encumbrances whatsoever and (b) Borrower shall
not, without FINOVA's prior written approval, sell,
encumber or dispose of or permit the sale,
encumbrance or disposal of any Collateral or all or
any substantial part of any of its other assets (or any
interest of Borrower therein), except for the sale of
Inventory in the ordinary course of Borrowces
business. In the event FINOVA gives any such prior
written approval with respect to any such sale of
Collateral, the same may be conditioned on the sale
price being equal to, or greater than, an amount
acceptable to FINOVA. The proceeds of any such
sales of Collateral shall be remitted to FINOVA
pursuant to this Agreement for application to the
Obligations.
3.9 Collateral Security. The Obligations
shall constitute one loan secured by the Collateral.
FINOVA may, in its Permitted Discretion, (i)
exchange, enforce, waive or release any of the
Collateral, (u) apply Collateral and direct the order or
manner of sale thereof as it may determine, and (ill)
settle, compromise, collect or otherwise liquidate any
Collateral in any manner without affecting its right to
take any other action with respect to any other
Collateral.
4. CONDITIONS OF CLOSING.
4.1 Initial Advance. The obligation of
FINOVA to matte the initial advance hereunder or to
issue or arrange for the issuance of the initial Letter
of Credit hereunder is subject to the fulfillment, to
the satisfaction of FINOVA and its counsel, of each
of the following conditions on or prior to the date set
forth on the Schedule:
(a) roan Documents . FINOVA shall
have received each of the following Loan
Documents: (i) the Agreement fully and properly
executed by Borrower, (ii) promissory notes in such
amounts and on such terms and coodndons as
FINOVA shall specify, executed by Borrower, (iii)
Guaranties executed by each of the Guarantors and/or
Validity and Support Agreements executed by the
applicable parties; (iv) such security agreements,
intellectual property assignments, pledge agreements,
owsAvcDOCTAMEl Docursoru 12
FINOVA Loon and Security Apreement
mortgages and deeds of tout as FINOVA may
require with respect to this Agreement and any
Guaranties, executed by each of the parties thereto
and, if applicable, duly acknowledged for recording
or filing in the appropriate governmental offices; (v)
Subordination Agreements in form and substance
acceptable to FINOVA, executed by each of the
Subordinating Creditors, together with copies of all
instruments subject thereto showing a legend
indicating such subordination; (vi) such Blocked
Account or Dominion Account agreements as it shall
determine; and (vii) such other documents,
instruments and agreements in connection herewith
as FINOVA shall require, executed, certified and/or
acknowledged by such parties as FINOVA shall
designate;
(b) Minimum Excess Availability.
Borrower shall have Excess Availability under the
Revolving Credit Loans facility of not less than the
amount specified in the Schedule, after giving effect
to the initial advance hereunder and after giving
effect to any applicable Loan Reserves against
borrowing availability under the Revolving Credit
Loam.
condition or assets, indicating that such party is in
good standing;
(g) Authorizing Resolutions and
Incumbent: FINOVA shall have received a
certificate from the Secretary of Borrower attesting to
(i) the adoption of resolutions of Borrower's Board of
Directors, and shareholders or members if necessary,
authorizing the borrowing of money from FINOVA
and execution and delivery of this Agreement and the
other Loan Documents to which Borrower is a parry,
and authorizing specific officers of Borrower to
execute sure, and (ii) the authenticity of original
specirr o-? signatures of such effects;
(h) Insurance. FINOVA shall have
received the inemmaee certificates and certified
copies of policies required by Section 3.4 hereof, in
form and substance satisfactory to FINOVA and its
counsel, together with an additional insured
endorsement in favor of FINOVA with respect to all
liability policies and a Icndees loss payable
endorsement in favor of FINOVA with respect to all
casualty and business interruption policies, each in
form and substance acceptable to FINOVA and its
counsel;
(e) Terminations by Existing Lender.
Borrower's existing lendet(s) shall have executed and
delivered UCC termination statements and other
documentation evidencing the termination of its liens
and security interats in the assets of Borrower or a
subordination agreement in form and substance
satisfactory to FINOVA;
d) Charter Documents. FINOVA shall
have received copies of Borrower's Bylaws and
Articles or Certificate of Incorporation, as amended,
modified, or supplemented to the Closing Date,
certified by the Secretary of Borrower;
(e) Good SLdjaL FINOVA shall hive
received a certificate of corporate status with respect
to Borrower, dated within ten (10) days of the
Closing Date, by the Secretary of State of the state of
incorporation of Borrower, which certificate shall
indicate that Borrower is in good standing in such
state;
(q Foreign Qualification. FINOVA
shall have received certificates of corporate status
with respect to Borrower and each other Loan Party,
each dated within ten (10) days of the Closing Date,
issued by the Secretary of State of each state in which
such partys failure to be duly qualified or licensed
would have a material adverse effect on its financial
(i) Title Insurance. FINOVA shall have
received binding commitments to issue such title
insurance with respect to Collateral or security for
Guaranties which is comprised of real property as it
shall determine;
(j) Sca_rches: Certificates of Title.
FINOVA shall have received searches reflecting the
riling of its financing statements and future filings in
such jurisdictions as it shall determine, and dui have
received certificates of title with respect to the
CoUterat which shall have been duly exmted in a
manner sufficient to perfect all of the security
interests granted to FINOVA;
(k) Landlord. Bailee and Mortgagee
Waivers. FINOVA shag have received landlord,
bailee and/or mortgagee waivers from the lessors,
bailees and/or mortgagees of all locations where any
Collateral is located;
(1) fSSS. Borrower shall have paid all
fees payable by it on the Closing Date pursuant to
this Agreement;
(m) Opinion of Counsel. FINOVA shall
have received an opinion of Borrowces counsel
covering such matters as FINOVA shall determine in
its Pemutted Discretion;
oosuvcDOCSJL EF Docvrsosu 13
(n) Officer Certificate. FINOVA shall
have received a certificate of the President and the
Chief Financial Officer or similar official of
Borrower, attesting to the accuracy of each of the
representations and warranties of Borrower set forth
in this Agreement and the fulfillment of all
conditions precedent to the initial advance hereunder;
(o) Solvency Certificate. If requested,
FINOVA shall have received a signed certificate of
the Borowces duly elected Chief Financial Offccr
concerning the solvency and fmancial condition of
Borrower, on FINOVA's standard form;
(p) Blocked Account. The Blocked
Account referred to in Section 2.10(c) hereof shall
have been established to the satisfaction of FINOVA
in is Permitted Discretion;
(q) Fnvironmental Assessment. If
required by FINOVA, Borrower shall have caused a
phase I Environmental Assessment to be conducted
on the property or properties owned or occupied by
Borrower, all at Borrower's own expense and the
results of such susessment(s) shall have been in form
and substance satisfactory to FINOVA. Such
assessment(s) shat have included, at FINOVA's
option, core samplings, and shall have been
conducted by an environmental engineer acceptable
to FINOVA;
(r) FnvLmamental Certificate. Al
FINOVA's option, FINOVA shall have received an
Environmental mate from Borrower, in form
and substance satisfactory to FINOVA, with respect
to all locations of CollauTal;
(a) seaMh and References. FINOVA
shat have received and approved the results of UCC,
tax Gen, litigation, judgment, and bankruptcy
searches regarding Buyer, Borrower, Seller, Investors
and such member of the senior mlmgement of
Seller as shall remain with Borrower, and shall have
received satisfactory customer, vendor and credit
refemee checks on Seller.
(t) Lease and Landlord's Consent.
FINOVA shall require that the Lease in favor of
Borrower from Seller regarding Borrowers facility at
the location(s) listed in the Schedule shall be for a
term (including renewal option) through the
Maturity Date. FINOVA shall further require that
prior to the Closing Date, Seller enter in a Landlord's
Consent Agreement and Estoppel Certificate, in form
and substance satisfactory to FINOVA to cure
defaults under such lease and continue in occupancy
of such premises in the event of defaults by Borrower
pursuant either to the Lease or the Loan Documents.
(u) Life Insurance. FINOVA shall
require that Borrower maintain a life insurance policy
on the life of the persons specified in the Schedule in
an amount specified in the Schedule (the "Lik
Insurance Policy"). The Life Insurance Policy shall
be collaterally assigned to FINOVA (pursuant to in
assignment in form satisfactory to FINOVA,
hereinafter referred to as the "Assignment of Life
Insurance") and be accepted and acknowledged in
writing by the applicable insurer or its authorized
representative. Borrower hereby grans to FINOVA
a security interest in the Life Insurance Policy, all
replacements thereof, any supplementary contract
issued in connection therewith, and all proceeds of
the foregoing (including without limitation, the
beneficiary's interest therein, collectively referred to
as the "Insurance Collateral") to secure Borrowers
payment and performance of all the Obligations. The
insurer under the Life Insurance Policy and the terns
and conditions of the Life Insurance Policy are
subject to the approval of FINOVA. The original of
the policy evidencing the Life Insurance Policy,
signed by an authorized insurance company
representative, shall be delivered to FINOVA at the
closing together with a duly executed Collateral
Assignment of Life Insurance which has been
accepted and acknowledged in writing by the
applicable insurer or is authorized representative.
The Life Insurance Policy shall require the insurer to
provide FINOVA with thirty (30) days advance
written notice of any cancellation and/or any material
change in coverage. Borrower warrants and
represents that it is and will be (throughout the entire
term of the Loan) the owner and beneficiary of the
Life Insurance Policy. Notwithstanding anything
herein to the contrary, upon the maturity of the Life
insurance Policy or upon the death of the individual
inured, the proceeds of the Life Insurance Policy
shall be paid directly to FINOVA, shall (at the option
of FINOVA) be traced as a prepayment and, if
treated as a prepayment, shall be applied in order
against (a) all of Borrower's Obligation, other thm
as set forth in the remaining subsections of this
paragraph, (b) all toss and expenses of FINOVA in
a'^cection with such prepayment, (c) accrued
interest, and (d) the unpaid principal balance of the
Loam in such manner as FINOVA shall elect No
prepayment premium or Termination Fee shall be due
and owing in connection with such prepayment To
the extent that the proceeds of said Life Insurance
Policy exceed the amount of Borrowers Obligation,
any such excess shall be paid by FINOVA directly to
oD?uVCDO=AMrt Docursosu 14
FINOVA Loan and Security Agreement
Borrower. Notwtthsunding anything to the contrary
herein, the obligations, undertakings and
representations of Borrower under this Section 4.1(u)
shall survive the Closing Date and shall be a
continuing obligation and agreement of Borrower
hereunder.
(v) No Material Adverse Changes. Prior
to the Closing Date, there shall have occurred no
material adverse change in the financial condition of
Seller or Borrower, or in the condition of the assets of
Seller, from that shown on the draft financial
statements for Seller dated on the date set forth in the
Schedule. At the closing, Borrower shall deliver to
FINOVA an olficces certification confirming that
Borrower is unaware of the existence of any such
material adverse change in Seller's financial
condition.
(w) Material Agreements. FINOVA
shall have received, reviewed and approved all
material agreements to which Borrower shall be a
patty, including any such agreements of Seller which
Borrower shall assume.
facilities or modifications of Borrower's employment
practices shall be required to bring them into
compliance with the ADA, review and approval by
FINOVA of Borrower's proposed plan to come into
such compliance. Borrower shall deliver
representations and warranties to FINOVA
concerning Borrower's compliance with the ADA,
and no evidence shall have come to the attention of
FINOVA indicating that Borrower is not in
compliance with the ADA (except to the extent that
FINOVA has reviewed and approved Borrower's plan
to come into compliance).
(aa) Subordination and lntercreditor
Agreements. FINOVA and each Subordinating
Creditor shall have entered into a Subordination
Agreement, in form and substance satisfactory to
FINOVA. Without limiting the generality of the
foregoing, Seller shall enter into one or more
Subordination Agreements with FINOVA, in form
and substance satisfactory to FINOVA, providing
that Seller's right to payments to respect of the Seller
Subordinated Indebtedness shall be subordinated in
right of payment to the Loan.
(x) Pjpiections. Borrower shall submit
cash flow projections and pro forma balance sheet
with adjusting entries (i) showing that the proposed
financing will provide sufficient funds for the
Borrower's projected working capital needs, and (ii)
showing: (1) that the Borrower will have reasonably
sufficient capital for the conduct of its business
following the initial funding, and (2) that the
Borrower will not incur debts beyond its ability to
pay such debts as they mature.
(y) Qpipiyyg. To the extent any Person
other than Borrower shall be parties to the Loan
Documents, FINOVA reserves the right to require
satisfactory opinions of counsel for each such Person
concerning the proper organization of such Person
and the due authorization, execution, delivery,
enforceability, validity and binding effect of the Loan
Documents to which such Person is a party. Each
such opinion of counsel shall confirm, to the
satisfaction of FINOVA, that the opinion is being
delivered to FINOVA at the instruction of the party
represented by such counsel, that FINOVA is entitled
to rely on such opinion and that for purposes of such
reliance, FINOVA is deemed to be in privity with the
opining counsel.
(z) ADA Compliance. If necessary, as
of the hosing Date, Borrower shall be in compliance
with the Americans with Disabilities Act of 1990
("A2W), or, if any renovations of Borrower's
(bb) Stock Pledge. Pledgors under the
Stock Pledge Agreement ("Pjedrors;") of even date
herewith ("Stock Pledge Agreement") shall have
executed and delivered the Stock Pledge Agreement,
pledging in favor of FINOVA all of the issued and
outstanding common capital stock of Borrower.
FINOVA shall be in possession on the Closing Date
of original stock certificates evidencing the shun of
Borrowers stock so pledged to FINOVA, and of
undated stock Powers and Assignments Apart from
Certificate, executed in blank by Pledgors with
respect to all such shares.
(cc) Acquisition Documents. FINOVA
must review and find satisfactory the Asset Purchase
Agreement, including copies of all exhibits and
schedules thereto, the Seller Noncompete Agreement
(which Seller Noncompete Agreement shall provide
for payments in an amount as previously represented
to FINOVA), and all other documents referred to
therein, and all other instruments to be executed
between Borrower and Seller in connection with the
acquisition (the "Acquisition"; all such documents
and instruments being referred to herein collectively
as the "Acquisition Documents"). The Acquisition
Documents must contain specific representations and
warranties, in form and substance satisfactory to
FINOVA, with respect to the accuracy of the
fuancial information submitted by Seller, and shall
further contain indemnity provisions acceptable to
FINOVA which shall address, among other items,
ooMAVCDOMarrrlpocWrroau 15
FINOVA n and Security Agreement
liability for environmental contamination and clean
up, if any. In addition, FINOVA must review and
find satisfactory all tern and conditions applicable
to any promissory notes delivered to evidence the
Seller Subordinated indebtedness.
(dd) Employment and Noncom=
Aurcements. FINOVA shall have reviewed and
approved all employment and non-compete
agreements to be in effect as of the Closing Date
between Borrower and (1) Seller or (2) any former
officer, director, member or shareholder of Seller.
(cc) Intentionally Omitted.
(n) Intentionally Omitted.
(gg) adMdUj Conditions. Borrower shall
have complied with all additional conditions
precedent as set forth in the Schedule attached hereto.
(hh) other Marten. All other documents
and legal marten in connection with the transactions
contemplated by this Agreement shall have been
deUvered, executed and recorded and shall be in form
and substance satisfactory to FINOVA and its
counsel including, without limitation, each of the
items listed on the Closing Checklist attached as
jilt 4.1 hereto.
4.2 Su •, , nt Advances. The
obligation of FINOVA to make any advance or issue
or cause any Letter of Credit to be issued hereunder
(including the initial advance or Letter of Credit)
shall be subject to the further conditions precedent
that. on and as of the date of such advance or Letter
of Credit issuance: (a) the representations and
warnmdes of Borrower set forth in this Agreement
shall be accurate, before and alter giving effect to
such advance or issuance and to the application of
any proceeds thereof, (b) no Event of Default and no
event which, with notice or passage of time or both,
would constitute an Event of Default has occuaed
and Is continuing, or would result from such advance
or Issuance or from the appUcation of any proceeds
thereof; (c) no material adverse change has occurred
in the Borrowedt business, operations, financial
condition, in the condition of the Collateral or other
nuts of Borrower or in the prospect of repayment of
the Obligations; and (d) FINOVA shall have recetved
such other approvals, opinions or documents as
FINOVA shall reasonably request.
5. REPRESENTATIONS AND
WARRANTIES.
Borrower represents and warrants that:
5.1 DUG QM1niZA1ion. It is a corporation
duly organized, validly existing and in good standing
under the laws of the State set forth on the Schedule,
is quallfted and authorized to do business and is in
good standing in all states in which such qualification
and good standing are necessary in order for it to
conduct its business and own its property, and has all
requisite power and authority to conduct its business
as presently conducted, to own its property and to
execute and deliver each of the Loan Documents to
which it is a pasty and perform all of its Obligations
thereunder, and has not taken any steps to wind-up,
dissolve or otherwise liquidate its assets;
5.2 Other Names. Borrower has not,
during the preceding five (5) yeah, been (mown by or
used any other corporate or fictitious name except as
set forth on the Schedule, nor has Borrower been the
surviving corporation of a merger or consolidation or
acquired all or substantially aU of the assets of any
person during such time;
5.3 D,L &U9W& lJlM- The execution,
delivery and performance by Borrower of the Loan
Documents to which it is A parry have been
authorized by AU necessary corporate action and does
not and shall not constitute a violation of any
applicable law or of Borrower's Articles or Catifsate
of Incorporation or By-Laws or any other document,
agreement or instrument to which Borrower is a party
or by which Borrower or its assets are bound;
5.4 Aindin¢ Obiig1dM Each of the
Loan Documents to which Borrower is a Putt' is the
legal, valid and binding obligation of Borrower
enforceable against Borrower in accordance with its
terms;
5.5 Intantrible ProoerlY. Borrower
possesses adequate assets. licenses, patents, patent
applications, copyrights, ndemub. trademark
appUations and trade names for the present and
planned future conduct of its business without any
known conflict with the rights of others, and each is
valid and has been duly registered or filed with the
appropriate. governmental authorities; each of
Borrowers patents, patent sppliatiom, Copyrights,
trademarks and trademark applications which have
been registered or filed with any governmental
authority (including the U.S, Patent and Trademark
ODMAVCD=XMEF DOCA2s0W 16
FINOVA Loan and Security A¢reemenr
Office and the Library of Congress) are listed by
name, date and filing number on the Schedule;
5.6 QVjlsl. Borrower has capital
sufficient to conduct its business, is able to pay its
debts as they mature, and owns property having a fair
salable value greater than the amount required to pay
all of its debts (including contingent debts);
5.12 Defaults, Borrower is not in default
with respect to any note, indenture, loan agreement,
mortgage, lease, deed or other agreement to which it
is a parry or by which it or its assets are bound, nor
has any event occurred which, with the giving of
notice or the lapse of time, or both, would cause such
a default;
5.7 Material Litigation. Borrower his no
pending or overtly threatened litigation, actions or
proceedings which would materially and adversely
affect its business, assets, operations, prospects or
condition, financial or otherwise, or the Collateral or
any of FINOVA's interests therein;
5.8 Title, Security Interests of FiNOVA.
Borrower has good, indefeasible and merchantable
title to the Collateral and, upon the execution and
delivery of the Loan Documents, the filing of UCC• I
Financing Statements, delivery of the certificate(s)
evidencing any pledged securities, the filing of any
collateral assignments or security agreements
regarding Borrower, Trademarks, Copyrights,
Liccnses and/or Patents, if any, with the appropriate
governmental offices and the recording of any
mortgages or deeds of trust with respect to real
property, in each case in the appropriate offices, this
Agreement and such documents shall create valid and
perfected first priority liens in the Collatera4 subject
only to Permitted Encumbrances;
5.9 Restrictive Atreementst Labor
Contracts. Borrower is not a party or subject to any
contract or subject to any charge, corporate
restriction, judgment, decor or order materially and
adversely affecting its business, assets, operations,
prospects or condition, financial or otherwise, or
which restricts its right or ability to incur
indebtedness, and it is not party to any labor dispute.
In addition, no labor contract its scheduled to expire
during the Initial Term of this Agreement, except as
disclosed to FINOVA in writing prior to the date
hereof,
5.10 heist. Borrower is not in violation of
any applicable statute, regulation. ordinance or any
order of any court, tnbttnal or governmental agency,
in any respect materially and adversely affecting the
Collateral or its business, assets, operations,
prospects or condition, financial or otherwise;
5.11 Consents: Borrower his obtained or
caused to be obtained or issued any required consent
of a governmental agency or other Person in
connection with the financing contemplated hereby;
5.13 Financial Condition. The Prepared
Financials fairly present Borrower's ftnsncial
condition and results of operations and those of such
other Persons described therein as of the date thereof
in accordance with GAAP; there are no material
omissions from the Prepared Financials or other facts
or circumstances not reflected in the Prepared
Financials; and there his been no material and
adverse change in such fmancul condition or
operations since the date of the initial Prepared
Financials delivered to FINOVA hereunder;
5.14 ERiSA. Neither Borrower, nor any
ERISA Affiliate, nor any Plan is or has been in
violation of any of the provisions of ERISA, any of
the qualification requirements of MC Section 401(x)
or any of the published interpretations thereunder,
nor has Borrower or any ERISA Affiliate received
any notice to such effect. No notice of intent to
terminate a Plan has been filed under Section 4041 of
ERISA, nor has any Plan been terminated under
ERISA. The PBGC has not instituted proceedings to
terminate, or appointed a trustee to administer, a
Plan. No lien upon the assets of Borrower has arisen
with respect to a Plan. No prolubited transaction or
Reportable Event his occurred with respect to a Plan.
Neither Borrower nor any ERISA Affiliate has
incurred any withdrawal liability with respect to any
Multiemployer Plan. Borrower and each ERISA
Affiliate have made all contributions required to be
made by them to any Plan or Multiemployer Plan
when due. There is no accumulated funding
deficiency in any Plan, whether or not waived;
5.15 J;. Borrower his filed all tax
retums and such other reports as it is required by law
to file and has paid or made adequate provision for
the payment on or prior to the date when due of all
taxes, assessments and similar charges that are due
and payable;
5.16 locations: Federal Tax ID No.
Borrower's chief executive office and the offices and
locations where it keeps the Collateral (except for
Inventory in transit) are at the locations set forth on
the Schedule, except to the extent that such locations
may have been changed after notice to FINOVA in
ODMAVCDOC9aMCF.DOC.A3#O6U 17
accordance with Section 6.1.4 hereof; Borrowers
federal tax identification number is as shown on the
Schedule;
5.17 Business Relationships. There exists
no actual or threatened termination, cancellation or
limitation of, or any modification or change in, the
business relationship between Borrower and any
customer or any group of customers whose purchases
individually or in the aggregate are material to the
business of Borrower, or with any material supplier,
and them exists no present condition or state of facts
or circumstances which would materially and
adversely affect Borrower or prevent Borrower from
conducting such business after the consummation of
the transactions contemplated by this Agreement in
substantially the same manner in which it has
heretofore been conducted; and
5.18 Rea dons. Each request for a
loan made by Borrower pursuant to this Agreement
shall constitute (i) an automatic representation and
warranty by Borrower to FINOVA that there does not
then exist any Event of Default and (ii) a
reaffirmation as of the date of said request of all of
the representations and warranties of Borrower
contained in this Agreement and the other Loan
Documents.
5.19 Year 2100. Borrower has taken all
action necessary to assure that them will be no
material adverse change to Borrower's business by
reason of the advent of the year 2000, including
without limitation that all computer-based systems,
embedded microchips and other processing
capabilities effectively recognize and process dates
after April 1. 1999.
6. COVENANTS.
6.1 Affirmative Covenants. Borrower
covenants that, so long as any Obligation remains
outstanding and this Agreement is in effect, it shall:
6.1.1 J=. File all tax returns and
pay or snake adequate provision for the payment of
an taxes, assessments and other charges on or prior to
the date when due;
6.1.2 Notice of Litigation.
Promptly notify FINOVA in writing of any litigation,
suit or administrative proceeding which may
materially and adversely affect the Collateral or
Borrower's business, assets, operations, prospects or
conditions, financial or otherwise, whether or not the
claim is covered by insurance;
6.1.3 E$ISA. Notify FINOVA in
writing (i) promptly upon the occurrence of any event
described in Paragraph 4043 of ERISA, other than a
termination, partial termination or merger of* Plan or
a transfer of a Plan's assets and (ii) prior to any
termination, partial termination or merger of a Plan or
a transfer of a Plan's asses;
6.1.4 Change in Incation. Notify
FINOVA in writing forty-five (45) days prior to any
change in the location of Borrower's chief executive
office or the location of any Collateral, or Borrower's
opening or closing of any other place of business;
6.1.5 Comotate Existence
Maintain its corporate existence and its qualification
to do business and good standing in an states
necessary for the conduct of its business and the
ownership of its property and maintain adequate
assets, licenses, patents, copyrights, trademarks and
trade names for the conduct of its business;
6.1.6 Labor Disoutes. Promptly
notify FINOVA in writing of any labor dispute to
which Borrower is or may become subject and the
expiration of any labor contract to which Borrower is
a party or bound;
6.1.7 Violations of Law. Promptly
notify FINOVA in writing of any violation of any
law, statute, regulation or ordinance of any
governmental entity, or of any agency thereof,
applicable to Borrower which may materially and
adversely affect the Collateral or Borrower's
business, assets, prospects, operations or condition,
financial or otherwise;
6.1.8 Defaults. Notify FINOVA in
writing within five (5) Business Days of Borrower's
default under any note, indenture, loan agreement,
mortgage, lease or other agreement to which
Borrower is a party or by which Borrower is bound,
or of any other default under any Indebtedness of
Borrower;
6.1.9 vital Expenditures.
Promptly notify FINOVA in writing of the making of
any Capital Expenditure materially affecting
Borrower's business, assets, prospects, operations or
condition, financial or otherwise, except to the extent
permitted in the Schedule. Notwithstanding the
foregoing, FINOVA shall have the right of first refusal
to provide Borrower with financing for such Capita
Expenditures, including, without limitation, (a) to
purchase or lease any property which is presently
ODMATCDOcrararF_DOCwrsosu 18
FINOVA Loan and Security Agreement
subject to a lien senior to that of FINOVA's and
pursurnt to financing which the Borrower seeks to
replace, and (b) to acquire any property alter the date of
this Agreement with purchase money financing. Such
right of first refusal shall be based upon substantially the
same terms and conditions offered to Borrower, in
wnting by any other lender. FINOVA shall respond to
any written request for such financing, which request
shall include a copy of the other lender's financing
proposal or offer, within ten (10) days of such written
request. FINOVA shall not unreasonably withhold its
consent to such financing.
6.2 Negative Covenants. Without
FINOVA's prior written consent, which consent
FINOVA may withhold in its Permitted Discretion,
so long as any Obligation remains outstanding and
this Agreement is in effect, Borrower shall not:
6.2.1 Mercers. Merge or
consolidate with or acquire any other Person, or make
any other material change in its capital structure or in
its business or operations which might adversely
affect the repayment of the Obligations;
6.1,10 Books and Records. Keep
adequate records and books of account with respect
to its business activities in which proper entries are
made in accordance with GAAP, reflecting all of its
financial transactions;
6.1.11 Leases: Warehouse
ACISSIDents. Provide FiNOVA with (i) copies of all
agreements between Borrower and any landlord,
warehouseman or bailee which owns any premises at
which any Collateral may, from time to time, be
located (whether for processing, storage or
otherwise), and (ii) without limiting the landlord,
badce and/or mortgagee waivers to be provided
pursuant to Section 4.1(k) hereof, additional landlord,
bailee and/or mortgagee waivers in form acceptable
to FBJOVA with respect to all locations where any
Collateral is hereafter located;
6.1.12 Additional Documents. At
FINOVA's request, promptly execute or cause to be
executed and delivered to FINOVA any and all
documents, instruments or agreements deemed
necessary by FINOVA to facilitate the collection of
the Obligations or the collateral or otherwise to give
effect to or arty out the terms or intent of this
Agreement or any of the other Loan Documents.
Without limiting the generality of the foregoing, if
any of the Receivables with a face value in excess of
$1,000 arises out of a contract with the United Sates
of America or any department, agency, subdivision or
instrumentality, thereof. Borrower shall promptly
notify FINOVA of such fact in writing and shall
execute any instruments and take any other action
required or requested by FINOVA to comply with the
provisions of the Federal Assignment of Claims Act;
and
6.1.13 Financial Covenants.
Comply with the financial covenants set forth on the
Schedule.
6.2.2 (Bpus. Make advances, loans
or extensions of credit to, or invest in, any Person.
except for loans or cash advances to employees
which are permitted in the Schedule;
6.2.3 Jam. Declare or pay
cash dividends upon any of its stock or distribute any
of its property or redeem, retire, purchase or acquire
directly or indirectly any of its stock;
6.2.4 Adverse Transactions. Enter
into any transaction which materially and adversely
affects the CoLiaterai or its ability to repay the
Obligations in full u and when due;
6.2.5 Indebtedness of Others.
Guarantee or become directly or contingently liable
for the Indebtedness of any Person, except by
endorsement of instruments for deposit and except
for the existing guarantees nude by Borrower prior to
the date hereof, if any, which are set forth in the
Schedule;
6.2.6 Rourchsse. Make a We to
any customer on a bill-and-hold, guaranteed sale, sale
and return, We on approval, consignment, or any
other repurchase or return buffs;
6.2.7 j lA=. Use any corporate or
fictitious name other than its corporate fume u set
forth in its Articles or Cate of Incorporation on
the date hereof or as set forth on the Schedule;
6.2.8 Emaymcni• Prepay any
Indebtedness other than trade payables and other than
the Obligations;
6.2.9 C+niLl Expenditue. Make or
incur any Capital Expenditure if, after giving effect
thereto, the aggregate amount of all Capital
Expenditures by Borrower in any fiseal yeu would
exceed the amount set forth on the Schedule;
ODMUVrDOCSarter DOCVnsosu 19
6.2.10 Comoersation. Pay total
compensation. including salaries, withdrawals, fees,
bonuses, commissions, drawing accounts and other
payments, whether directly or indirectly, in money or
otherwise, during any fiscal year to all of Borrower's
executives, officers and directors (or any relative
thereof) in an amount in excess of the amount set
forth on the Schedule;
6.2.11 Indebtedness. Create, incur,
assume or permit to exist any Indebtedness (including
Indebtedness in connection with Capital Leases) in
excess of the amount set forth on the Schedule, other
thaw (i) the Obligations, (ii) trade payables and other
contractual obligations to suppliers and customers
incurred in the ordinary course of business, and (iii)
other Indebtedness existing on the date of this
Agreement and reflected in the Prepared Financials
(except Indebtedness paid on the date of this
Agreement from proceeds of the initial advances
hereunder), and ((v) Subordinated Debt;
6.2.12 Affiliate Transactions.
Except as set forth below, sell, transfer, distribute or
pay any money or property to any Affiliate, or invest
in (by capital contribution or otherwise) or purchase
or repurchase any stock or Indebtedness, or any
property, of any Affiliate, or become liable on any
guaranty of the indebtedness, dividends or other
obligations of any Affiliate. Notwithstanding the
foregoing, Borrower may pay compensation
permitted by Section 6.23 to employees who are
Affliues and, if no Event of Default his occurred.
Borrower may (i) engage in tnnsactions with
Affiliates in the normal course of business, in
amounts and upon terns which are fully disclosed to
FINOVA and which are no less favorable to
Borrower than would be obtainable in a comparable
arm's length transaction with a Person who is not an
Affiliate. and (U) make payments to a Subordinating
creditor that is an Affiliate, subject to and only to the
extent expressly permitted in the Subordination
Agreennt between such Subordinating Creditor and
FINOVA;
6.2.13 Ns lM of JU1ja a. Enter
into any new business or nuke any material change
in any of Borrower's business objectives, purposes or
operations;
6.2.14 FINOVA's Name. Use the
name of FINOVA in connection with any of
Borrower's business or activities, except in
connection with internal business matter or as
required in dealings with governmental agencies and
financial institutions or with trade creditors of
Borrower, solely for credit reference purposes; or
6.2.15 Martin Security. Borrower
will not (and has not in the put) engaged principally,
or as one of its important activities, is the business of
extending credit for the purpose of purchasing or
carrying margin stock (within the meaning of
Regulation 0 or Regulation U issued by the Board of
Governors of the Federal Reserve System), and no
proceeds of any Loan or other advance will be used
to purchase or carry any margin stock or to extend
credit to others for the purpose of purchasing or
carrying any margin stock. or in any manner which
might cause such Loan or other advance or the
application of such proceeds to violate (or require
any regulatory filing under) Regulation G,
Regulation T, Regulation U, Regulation X or any
other regulation of the Board of Governors of the
Federal Reserve System, in each case as in effect on
the date or dates of such Loan or other advance and
such use of proceeds. Further, no proceeds of any
Loan or other advance will be used to acquire any
security of a elm which is registered pursuant to
Section 12 of the Securities Exchange Act of 1934.
6.2.16 Real Prometty. Purchase or
acquire any real property without FINOVA's prior
written consent, a condition of which consent shall
include delivery of appropriate environmental reports
and analysis, in form and substance satisfactory to
FBJOVA and its counsel.
6.2.17. Year 2004. Borrower shall
take all action necessary to assure that then will be
no material adverse change to Borrowees business by
reason of the advent of the year 2000, including
without limitation that aU computer•bssed systerns,
embedded microchips and other processing
capabilities effectively recognize and process dates
alter April 1, 1999. At FINOVA's request, Borrower
shall provide to FINOVA assurance reasonably
acceptable to FINOVA that Borrower's computer-
based systems, embedded microchips and other
processing capabilities are year 2000 compatible.
7. DEFAULT AND REMEDEES.
7,1 any of Default Any
one or more of the following events $ball constitute
an Event of Default under this Agreement:
(a) Borrower fails to pay when due and
payable any portion of the Obligations at sated
maturity, upon acceleration or otherwise;
oDMAVCDOCSAMEF nocu7a0VJ 20
(b) Borrower or any other Loan Party
fails or neglects to perform keep, or observe any
Obligation including, but not limited to, any term
provision, condition, covenant or agreement
contained in any Loan Document to which Borrower
or such other Loan Party is a party;
(c) Any material adverse change occurs
in Borrower's business, assets, operations, prospects
or condition, financial or otherwise;
(d) The prospect of repayment of any
portion of the Obligations or the value or priority of
FINOVA's security interest in the Collateral is
materially impaired;
(e) Any portion of Borrowefa assets is
seized, attached, subjected to a writ or distress
wamot, is levied upon or comes into the possession
of any judicial officer and is not vacated or bonded
within five (5) days.
(f) Borrower shall generally not pay its
debts as they become due or shall enter into any
agreement (whether written or oral), or offer to enter
into any agreement, with all or a significant number
of its creditors regarding any moratorium or other
indulgence with respect to its debts or the
participation of such creditors or their representatives
in the supervision, management or control of the
business of Borrower,
(g) Any bankruptcy or other insolvency
proceeding is commenced by Borrower, or any such
proceeding is commenced against Borrower and
remains undischarged or unstayed for forty-five (45)
days;
(b) Any notice of lien, levy or
assessment is filed of record with respect to any of
Borrowefa assets and is not vacated or bonded within
five (5) days.
(i) Any judgments tae entered against
Borrower in an aggregate amount exceeding $25,000
in any fueal year and is not vacated or bonded within
thirty (30) days.
0) Any default shall occur under (i) any
material agreement between Borrower and any third
party including, without limitation, any default which
would result in a right by such third party to
accelerate the maturity of any indebtedness of
Borrower to such third party, or (ii) any Subordinated
Debt without limiting the foregoing, which default is
not cured within five (5) days of the date of such
default, provided Borrower delivers to FINOVA a
copy of the notice of such default within 24 hours of
Borrower's receipt of such notice, and further
provided Borrower is not otherwise in default under
the terms of this Agreement.
(k) Any representation or warranty nude
or deemed to be made by Borrower, any Affiliate or
any other Loan Party in any Loan Document or any
other statement, document or report nude or
delivered to FINOVA in connection therewith shall
prove to have been misleading in any material
respect;
(1) Any Guarantor becomes
incapacitated, dies, terminates or attempts to
terminate its Guaranty or any security therefor or
becomes subject to any bankruptcy or other
insolvency proceeding;
(m) Any Prohibited Transaction or
Reportable Event shall occur with respect to a Plan
which could have a material adverse effect on the
fuancial condition of Borrower, any hen upon the
assets of Borrower in connection with any Plan shall
arise; Borrower or any of its ERISA Affiliates shall
fail to make full payment when due of all amounts
which Borrower or any of its ERISA Affliues may
be required to pay to any Plan or any Muldemployer
Plan as one or more contributions thereto; Borrower
or any of its ERISA Affiliates creates or permits the
creation of any accumulated funding deficiency,
whether or not waived; or
(n) Any transfer of more than ten percent
(101/6) of the issued and outstanding shares of
common stock or other evidence of ownership of
Borrower,
NOTWITHSTANDING ANYTHING TO
THE CONTRARY HEREIN, FINOVA RESERVES
THE RIGHT TO CEASE MAKING ANY LOANS
DURING ANY CURE PERIOD STATED ABOVE,
AND THEREAFTER IF AN EVENT OF DEFAULT
HASOCCURRED.
7.2 Regis. Upon the occurrence of
an Event of Default, FINOVA may, at its option and
in its Permitted Discretion and in addition to all of its
other tights under the Loan Documents, cease
nuking Loans, terminate this Agreement and/or
declare all of the Obligations to be immediately
payable in full. Borrower agrees that FINOVA shall
also have all of its rights and remedies under
applicable law, including, without limitation. the
default rights and remedies of a secured party under
oDnuvcva'sawv_DOCWrsosu i I
the Code, and upon the occurrence of an Event of
Default Borrower hereby consents to the appointment
of a receiver by FINOVA in any action initiated by
FINOVA pursuant to this Agreement and to the
jurisdiction and venue set forth in Section 9.26
hereof, and Borrower waives notice and posting of a
bond in connection therewith. Further, FINOVA
may, at any time, take possession of the Collateral
and keep it on Borrower's premises, at no cost to
FINOVA, or remove any part of it to such other
place(s) as FINOVA may desire, or Borrower shall,
upon FiNOVA's demand, at Borrower's sole cost,
assemble the Collateral and make it available to
FINOVA at a place reasonably convenient to
FINOVA. FINOVA may sell and deliver any
Collateral at public or private sales, for cash, upon
credit or otherwise, at such prices and upon such
terms as FINOVA deems advisable, at FINOVA's
Permitted Discretion, and may, if FINOVA deems it
reasonable, postpone or adjourn any sale of the
Collateral by an announcement at the time and place
of sale or of such postponed or adjourned sale
without giving a new notice of We. Borrower agrees
that FINOVA has no obligation to preserve rights to
the Collateral or marshal any Collateral for the
benefit of any Person. FINOVA is hereby granted a
license or other right to use, without charge,
Borrowees labels, patens, copyrights, name, trade
secrets, trade names, trademarks and advertising
matter, or any similar property, in completing
production, advertising or selling any Collateral and
Borrowces rights tinder all licenses and all fiynchise
agreements shall inure to FINOVA's benefit. Any
requirement of reasonable notice shall be met if such
notice is trailed postage prepaid to Borrower at its
address set forth in the heading to this Agreement at
least five (5) days before We or other disposition.
The proceeds of We shall be applied, first, to all
attorneys fees and other expenses of sale, and second,
to the Obligations in such order as FINOVA shall
elect, in its Permitted Discretion. FINOVA shall
rerun any excess to Borrower and Borrower shall
remain liable for any deficiency to the fullest extent
permitted by law.
7.3 Confession of Judgment. If an
Event of Default shall occur under this Agreement,
or a default shall exist under any other agreements
entered into between Borrower and FINOVA or
delivered by Borrower to FINOVA, and after giving
effeet to any applicable cure periods, if any.
Borrower hereby Irrevocably authorizes and
empowers any attorney or clerk of any court of
record in the Commonwealth of Pennsylvania or
elsewhere (either by amicable action or in a
proceeding commenced by Complaint) to appear for
and CONFESS JUDGMENT against all, or any of
them, (a) for such sums for which the Borrower
may become liable to FINOVA and/or (b) in any
action instituted by FINOVA to obtain possession
of any Collateral securing the Borrower's
Obligations hereunder, with or without declaration.
with costs of suit, without stay of execution, and
with fifteen percent (15%) of the principal amount
thereof but not less than $5,000 added for attorney's
fees together with interest on said judgment at the
highest annual rate permitted by law, or if no such
rate is specified by law, then at the rate set forth in
Section 2.7 of this Agreement, calculated from the
date of default until full payment of same is received
by FINOVA. Borrower: (a) waives the right of
inquisition on any Collateral levied on, and agrees
that the Collateral may be sold on a Writ of
Execution or by secured party public or private sale;
(b) waive and release all relief from any and all
appraisen=t, stay, exemption or appeal clause of
any suite now in force or hereafter enacted; and (c)
releases FTNOVA and any said attorney from all
errors and damages arising out of compliance with
this warrant.
THE AUTHORITY AND POWER TO
APPEAR FOR AND CONFESS OR ENTER
JUDGMENT AGAINST THE BORROWER
SHALL NOT BE EXHAUSTED BY THE
INIIIAL EXERCISE THEREOF, AND THE
SAME MAY BE EXERCISED FROM TIME TO
TIME, AS OFTEN AS FINOVA SHALL DEEM
NECESSARY AND DESIRABLE, FOR THE
SAME OR SUBSEQUENT DEFAULTS AND
IRRESPECTIVE OF ANY PUBLIC OR
PRIVATE SALE OF THE COLLATERAL OR
ANY FORECIASURE PROCEEDINGS AND
FOR SO DOING THIS AGREEMENT SHALL
BE A GOOD AND SUFFICIENT WARRANT,
7,4 Standards for Determining
Commercial Reasonableness. Borrower and
FINOVA agree that the following conduct by
FINOVA with respect to any disposition of Collateral
shall conclusively be deemed commercially
reasonable (but other conduct by FINOVA,
including, but not limited to, FINOVA's use in its
Permitted Discretion of other or different times,
places and manners of noticing and conducting any
disposition of Collateral shall not be deemed
unreasonable): Any public or private disposition: (i)
as to which on no later than the fifth calendar day
prior thereto written notice thereof is marled or
0DMAV'CDoCS&MEP_D0C1129091r 22
personally delivered to Borrower and, with respect to
any public disposition, on no later than the firth
calendar day prior thereto notice thereof describing in
general non-specific terms, the Collateral to be
disposed of is published once in a newspaper of
general circulation in the county where the sale is to
be conducted (provided that no notice of any public
or private disposition need be given to the Borrower
or published if the Collateral is perishable or
threatens to decline speedily in value or is of a type
customarily sold on a recognized market); (ii) which
is conducted at any place designated by FINOVA,
with or without the Collateral being present; and (iii)
which commences at any time between 8:00 a.m. and
5:00 p.m. Without limiting the generality of the
foregoing, Borrower expressly agrees that. with
respect to any disposition of accounts, instruments
and general intangibles, it shall be commercially
reasonable for FINOVA to direct any prospective
purchasa thereof to ascertain directly from Borrower
any and all information concerning the same,
including, but not limited to, the terms of payment,
aging and delinquency, if any, the financial condition
of any obligor or aeuunt debtor thereon or guarantor
thereof, and any collateral therefor.
8. EXPENSES AND INDEMMTB:S
8.1 );gptwes. Borrower covenants that,
so long as any Obligation remains outstanding and
this Agreement remains in effect, it shall promptly
reimburse FINOVA for all costs, fees and expenses
incurred by FINOVA in connection with the
negotiation, preparation, execution, deliverv,
administration and enforcement of :ach of the Loan
Documents, including, but not limited to, the
attorneys' and paalegals' fees of in-house and outside
counsel, expert witness fees, lien, title search and
insurance fees, appraisal fees, all charges and
expenses incurred in connection with any and all
environmental reports and environmental remediation
activities, and all other costs, expenses, taxes and
filing or recording fees payable in connection with
the transactions contemplated by this Agreement,
including without limitation all such costs, fees and
expenses as F'INOVA shall inns or for which
FINOVA shall become obligated in connection with
(i) any inspection or verification of the Collateral, (ii)
any proceeding relating to the Loan Documents or
the CoWtera4 (iii) actions taken with respect to the
Collateral and FINOVA's security interest therein.
including, without limitation, the defense or
prosecution of any action involving FINOVA and
Borrower or any third party, (iv) enforcement of any
of FINOVA's rights and remedies with respect to the
Obligations or Collateral and (v) consultation with
FINOVA's attorneys and participation in any
workout, bankruptcy or other insolvency or other
proceeding involving any Loan Party or any Affiliate,
whether or not suit is filed or the issues are peculiar
to federal bankruptcy or state insolvency laws.
Borrower shall also pay all FINOVA charges in
connection with bank wire transfers, forwarding of
loan proceeds, deposits of checks and other items of
payment, returned checks, establishment and
maintenance of lockboxes and other Blocked
Accounts, and all other bank and administrative
matters, in accordance with FINOVA's schedule of
bank and administrative fees and charges in effect
from time to time.
8.2 Environmental Matters.
(a) Defitritiong. The following
definitions apply to the provisions of this Section 8.2:
(a) the term "Agglleable Law" shall include, but
shall not be limited to, all local, state and/or federal
laws, rules, regulations or ordinances, whether
currently in existence or hereafter enacted, which
govern, to the extent applicable to the Property or to
Borrower, (i) the existence, cleanup and/or remedy of
contamination on real property; (ii) the protection of
the environment from tail, air or water pollution, or
from spilled, deposited or otherwise emplaced
contamination; (iii) the emission or discharge of
hazardous substances into the environment; (iv) the
control of hazardous wastes; or (v) the use,
generation, transport, treatment, removal or recovery
of Hazardous Substances; (b) the term "Hazardous
Substance" shall mean (i) any oil, flammable
substance, explosives, radioactive materials,
hazardous wastes or substances, toxic wastes or
substances or any other wastes, materials or
pollutants which either pose a hazard to the Property
or to persons on or about the Property or cause the
Property to be in violation of any Applicable Law;
(ii) asbestos in any form which is or could become
friable, ura formaldehyde foam insulation,
transformers or other equipment which contain
dielectric fluid containing levels of polychlorinated
biphenyla, or radon gas; (ill) any chemica4 material
or substance defined as or included in the definition
of "hazardous substances," "waste," "hazardous
wastes," "bazardous materials," "extremely hazardous
waste," "restricted hazardous waste," or "toxic
substances" or words of similar import under any
Applicable Law; ; (iv) any other chemical, material
or substance, exposure to which is prohibited, limited
or regulated by any governmental authority which
may or could pose a hazard to the health or safety of
the occupants of the Property or the owners and/or
occupants of property adjacent to or surrounding the
ODMATCDOCSaMEF DWAntOtln 13
Property, or any other person coming upon the
Property or adjacent property; and (v) any other
chemical, materials or substance which may or could
pose a hazard to the environment; and (c) the term
"Property" shall mean all real property, wherever
located, in which Borrower or any Affiliate of
Borrower has any right, title or interest, whether now
existing or hereafter arising, and including, without
limitation, as owner, lessor or lessee.
(b) Covenants and Representations.
(1) Borrower represents and warrants that there have
not been during the period of Borrower's possession
of any interest in the Property and, to the best of its
knowledge after reasonable inquiry, there have not
been at any other times, any activities on the Property
involving, directly or indirectly, the use, generation,
treatment, storage or disposal of any Hazardous
Substances except in couVWcc with Applicable
Law (i) under, on or in the land included in the
Property, whether contained in soil, tanks, sumps,
ponds, lagoons, barrels, cans or other containments,
structures or equipment, (U) incorporated in the
buildings, structuea or improvements included in the
property, including any building material containing
asbestos, or (ili) used in connection with any
operations on or in the Property. (2) Without limiting
the generality of the foregoing and to the extent not
included within the scope of this Section 8.2(b),
Borrower represents and warrants that it is in full
compliance with Applicable Law and has received no
notice from any Person or any govemmemtal agency
or other entity of any violation by Borrower or its
Affiliates of any Applicable Law. (3) Borrower shall
be solely responsible for and agrees to indemnify
FINOVA, protect and defend FINOVA with counsel
reasonably acceptable to FINOVA, and hold
FINOVA harmless from and against any claims,
action, administrative proceedings, judgments,
damages, punitive damages, penalties, fines, costs,
liabilities (including sums paid in settlements of
claims), interest or losses, attorneys' fees (including
any feu and expeasa incurred in enforcing this
indemnity), co ssnitant fen, expert fees, and other
out-of pocket costs or expenses actually incurred by
FINOVA (coUeatively, the "F.nvironmentat Costs"),
that may, at any time or from hme to time, wise
di=dY or indirectly from or in connection with: 0)
the presence, suspected presence, release or
suspected release of any Hazardous Substance
whether into the air, soil, surface water or
groundwater of or at the Property, or any other
violation of AppUuble Law, or (ii) any breach of the
foregoing representation and covenamts; except to
the extent any of the foregoing result from the actions
of FINOVA, its employees, agents and
representatives. All Environmental Costs incurred or
advanced by FINOVA shall be deemed to be nude
by FINOVA in good faith and shall constitute
Obligations hereunder.
9. MISCELLANEOUS.
9.1 Examination of Records: Financial
Reporting.
(a) Examinations. FINOVA shall at all
reasonable times have full access to and the right to
examine, audit, make abstracts and copies from and
inspect Borrower's records, files, books of account
and all other documents, instruments and agreements
relating to the Collateral and the right to check, test
and appraise the Collateral. Borrower shall deliver to
FINOVA any instrument necessary for FINOVA to
obtain records from any service bureau maintaining
records for Borrower. AU instruments and
certificates prepared by Borrower showing the value
of any of the Collateral shall be accompanied, upon
FINOVA's request, by copies of related purchase
orders and invoices. FINOVA may, at any time after
the occurrence of an Event of Default, remove from
Borrower's premises Borrower's books and records
(or copies thereof) or require Borrower to deliver
such books and records or copies to FINOVA.
FINOVA may, without expense to FINOVA, use
such of Borrowees persommel, supptics and premises
as may be reasonably necessary for maintaining or
enforcing FINOVA's security interest.
(b) Rmttinv Requirements. Borrower
shall deliver to FINOVA a weekly borrowing base
certificate on the last business day of each week and
each time Borrower requests an advance. Borrower
shall furnish FINOVA, upon request, such
information and statements as FINOVA shall request
from time to time regarding Borrowers business
affairs, financial condition and the results of its
operation. Without limiting the generality of the
foregoing, Borrower shall provide FINOVA with: (i)
FINOVA's standard form collateral and loan report,
daily, and upon FINOVA's request, eopie•. of sales
journals, cash receipt journals, and deposit :aps; (U)
upon FINOVA's request, copies of sales invoices,
customer statements and credit memoranda issued,
remittance advices and reports; (ill) copies of
shipping and delivery documents, upon request; ((v)
on or prior to the date set forth on the Schedule,
monthly agings (aged from invoice date) and
reconciliation of Receivables (with Wrings of
concentrated accounts), payables reports, inventory
reports, compliance certificates and unaudited
financial statements with respect to the prior mouth
oosuVCDOCTAMEF Docu»osu 24
prepared on a basis consistent with such statements
prepared in prior months and otherwise in accordance
with GAAP; (v) audited annual consolidated and
consolidating financial statements, prepared in
accordance with GAAP applied on a basis consistent
with the most recent Prepared Financials provided to
FINOVA by Borrower, including balance sheets,
income and cash flow statements, accompanied by
the unqualified report thereon of independent
wed public accountants acceptable to FINOVA,
as soon as available, and in any event, within ninety
(90) days after the end of each of Borrower's fiscal
years; sad (vi) such certificates relating to the
foregoing as FINOVA may request, including,
without limitation, a monthly certificate from the
president and the chief financial officer of Borrower
showing Borrowers compliance with each of the
financial covenants set forth in this Agreement, and
stating whether any Event of Default has occurred or
event which, with giving of notice or the passage of
time, or both, would constitute an Event of Default,
and if so, the steps being taken to prevent or cure
such Event of Default. All reports or financial
statements submitted by Borrower shall be in
reasonable detail and shall be certified by the
principal financial officer of Borrower as being
complete and correct.
(c) Guarantors Financial Statements and
Tax Retums. Borrower shall cause each of the
Guarantors to deliver to FINOVA such Guarantors
annum, financial statement (in form acceptable to
FINOVA) and a copy of such Guarantors federal
income tax return with respect to the corresponding
year, in each case on the date when such tax return is
due or, if earlier, on the date when available.
9.2 Term: Temsiru tion.
(a) 1=. The Initial Terre of the
Revolving Credit Loans facility and the obligation of
FINOVA to make advances with respect thereto in
accordance with this Agreement shall be as set forth
on the Schedule, and the Revolving Credit Loans
facility and this Agreement shall be automatically
renewed for one or more Renewal Term(s) as set
forth in the Schedule, unless earlier terminated as
provided herein.
(b) Prior Notice. Each party shall have
the right to terminate this Agreement effective At the
end of the Initial Term or at the end of any Rcewal
Term by giving the other party written notice not less
than sixty (60) days prior to the effective date of such
termination, by registered or certified nail.
(c) Payment in Full. Upon the
effective date of termination, the Obligations shall
become immediately due and payable in full in cash.
(d) Early Termination, Termination
Ea. In addition to the procedure set forth in Section
9.2(b), Borrower may temdnate this Agreement at
any time but only upon sixty (60) days' prior written
notice and prepayment of the Obligations. Upon any
such early termination by Borrower or any
termination of this Agreement by FINOVA upon the
occurrence of an Event of Default, then, and in any
such event, Borrower shall pay to FINOVA upon the
effective date of such termination a fee (the
"Termination Fee") in an amount equal to the
amount shown on the Schedule.
9.3 Recourse to Security: Certain
Waivers. All Obligations shall be payable by
Borrower as provided for herein and, in full, at the
termination of this Agreement; recourse to security
shall not be required at any time. Borrower waives
presentment and protest of any instrument and notice
thereof, notice of default and, to the extent permitted
by applicable taw, all other notices to which
Borrower might otherwise be entitled.
9.4 No Waiver by FINOVA. Neither
FINOVA's failure to exercise any right, remedy or
option under this Agreement, any supplement, the
Loan Documents or other agreement between
FINOVA and Borrower not any delay by FINOVA in
exercising the same shall operate as a waiver. No
waiver by FINOVA shall be effective unless in
writing and then only to the extent stated. No waiver
by FINOVA shall affect its right to require strict
performance of tits Agreement. FINOVA's rights
and remedies shall be cumulative and not exclusive.
9.5 Binding on Successor and Assirm..
AB terms, conditions, promises, covenants,
provisions and wmttantes shall inure to the benefit of
and bind FINOVA's and Borrowers respective
representatives, successors and assigns.
9.6 Severability. If any provision of this
Agreement shall be prohibited or invalid under
applicable law, it shall be ineffective only to such
extent, without invalidating the remainder of this
Agreement.
9.7 Amendments: Assignments. This
Agreement may not be modified, altered or amended,
except by an agreement in writing signed by
Borrower and FINOVA. Borrower rnsy not sell,
assign or transfer any interest in this Agreement or
ODMAVCDOCSAMLF DDC%4210 W 25
any other Loan Document, or any portion thereof.
including, without limitation, any of Borrower's
rights, title, interests, remedies, powers and duties
hereunder or thereunder. Borrower hereby consents
to FINOVA's participation, sale, assignment, transfer
or other disposition, at any time or times hereafter, of
this Agreement and any of the other Loan
Documents, or of any portion hereof or thereof,
including, without limitation. FINOVA's rights, title,
interests, remedies, powers and duties hereunder or
thereunder. In connection therewith, FINOVA may
disclose all documents and iaforrnation which
FINOVA now or hereafter may have relating to
Borrower or Borrowers business. To the extent that
FINOVA assigns its rights and obligations hereunder
to a third party, FINOVA shall thereafter be released
from such assigned obligations to Borrower and such
assignment shall effect a novation between Borrower
and such third party.
9.8 lntertation. This Agreement,
together with the Schedule (which is a part hereol)
and the other Loan Documents, reflect the entire
understanding of the parties with respect to the
transactions contemplated hereby.
9.9 Survival. All of the representations
and warranties of Borrower contained in this
Agreement shall survive the execution, delivery and
acceptance of this Agreement by the parties, No
termination of this Agreement or of any guaranty of
the Obligations shall affect or impair the powers,
obligations, duties, rights, representations, warranties
or liabilities of the parties herein and all shall survive
such termination.
9.10 Evidence of Obligations. Each
Obligation may, in FINOVA's Permitted Discretion,
be evidenced by notes or other instruments issued or
made by Borrower to FINOVA. If not so evidenced,
such Obligation shall be evidenced solely by entries
upon FINOVA's books and records.
9.11 Loan Reauests. Each oral or written
request for a loan by any Person who purports to be
any employee, officer or authorized agent of
Borrower shall be made to FINOVA on or prior to
11:00 a.m, Eastern time, on the Business Day on
which the proceeds thereof are requested to be paid to
Borrower and shall be conclusively presumed to be
made by a Person authorized by Borrower to do so
and the crediting of a loan to Borrower's operating
account shall conclusively establish Borowers
obligation to repay such loan. Unless and until
Borrower otherwise directs FINOVA in writing, all
loans shall be wired to Borrower's operating account
set forth on the Schedule.
9.12 Notices. Any notice required
hereunder shall be in writing and addressed to the
Borrower and FINOVA at thew addresses set forth at
the beginning of this Agreement with a copy to
Vard Griffith. VP, at 355 S. Grand Ave., Suite 2400,
Los Angeles, CA 90071, and a copy to Joseph R.
D'Amore, VP-Associate General Counsel, at 1850 N.
Central Ave., Suite 1141, Phoenix, AZ 85002.
Notices hereunder shall be deemed received on the
earlier of receipt, whether by mail, personal delivery,
facsimile, or otherwise, or upon deposit in the United
States mail, postage prepaid.
9.13 Brokerage Fees. Borrower
represents and warrants to FINOVA that, with
respect to the financing transaction herein
contemplated, no Person is entitled to any brokerage
fee or other commission and Borrower agrees to
indemnify and hold FINOVA harmless against any
and all such claims.
9.14 Disclosure. No represrnation or
warranty made by Borrower in this Agreement, or in
any financial statement, report, certificate or any
other document furnished in connection herewith
contains any untrue statement of a material fact or
omits to state any material fact necessary to make the
statements herein or therein not misleading. Then is
no fact known to Borrower or which reasonably
should be known to Borrower which Borrower has
not disclosed to FINOVA in writing with respect to
the transactions contemplated by this Agreement
which materially and adversely affects the business,
uses, operations, prospects or condition (financial or
otherwise), of Borrower.
9.15 Publicity. FINOVA is hereby
authorized to issue appropriate press releases and to
cause a tombstone to be published announcing the
consummation of this transaction and the aggregate
amount thereof.
9.16 Cannons. The Section titles
contained in this Agreement are without substantive
meaning and are not part of this Agreement.
9.17 iniunctive Relief. Borrower
recognizes that, in the event Borrower fails to
perform, observe or discharge any of its Obligations
under this Agreement, any remedy at law may prove
to be inadequate relief to FINOVA. Therefore,
FINOVA, if it so requests, shall be entitled to
temporary and permanent injunctive relief in any
ODMAWDOCTAMEF Docunsoau 26
Responsible Executed
P= Appro val Received
Certificate of Good Standing as a Foreign Corporation in Pennsylvania' Borrower
UCC-1 Financing Statements (Non-Fixture Filing)-See Attached Chart RME&F
Dominion Account Agreement' FINOVA
Condition Subsequent Letter RME&F 9/11/98
Wire Instructions FINOVA 9/11/98
Signature Authorization RME&F 9/11198
Instructions for Accounts Receivable Financing RME&F 9/11198
Certificate of No Change RME&F 9/11198
Certificate of Invoice RME&F 9111198
Appointment of Agent for Borrower and each Guarantor RME&F 9111198
Guaranty of Leo Bloom and Shirley R. Bloom RME&F 9111198
Tradestyle Letter RME&F 9111/98
Certificate of Personal Financial Statements for Leo Bloom RME&F 9/11198
Certificate of Personal Financial Statements for Shirley R. Bloom RME&F 9/11/98
Stock Power RME&F 9/11/98
Notice of Pledge Stock Certificate RME&F 9/11198
Pledge and Security Agreement RME&F 9111198
Confession of Judgment Explanation and Disclosure of Rights/Waivers for RME&F 9/11/98
Guarantors
Confession of Judgment Explanation and Disclosure of Rights/Waivers for RME&F 9111/98
Borrower
Trademark Collateral Assignment and Security Agreement RME&F 9/11198
Escrow Letter RME&F 9/11/98
Additional Guarantor Letter RME&F 9/11198
Condition Subsequent
ODMAVCDOCSAMrl DOCA4211"
J udy/qpi Ifism ceri 9.27.99
INCUMBENCY CERTIFICATE OF SECRETARY
The undersigned. SHIRLEY R. BLOOM. hereby certifies that:
1. She is the duly elected and acting Secretary of IF SERVICES. LTD., a
Delaware corporation (the "Company");
2. The Loan and Security Agreement and the Loan Documents entered into
between the Company and FINOVA CAPITAL CORPORATION has been duly authorized and
approved by the Board of Directors of the Company and such approval has not been altered,
amended, modified or rescinded and remains in full force and effect as of the date hereof.
3. Each of the named persons below is the duly elected and qualified incumbent
in the office of the Company set forth opposite his or her name and the signature set forth
opposite his or her name is his or her we and correct signature:
N= Tula al=
LEO BLOOM President
LEO BLOOM Treasurer _
LEO BLOOM Chief Executive /0 (?'?--t1 11v?-?
Officer
R I mr, y
SHIRLEY R. BLOOM Secretary 5 hAh I le4f
SHIRLEY R. BLOOM Vice President ?hL R• ?'y?'°^'
IN WITNESS WHEREOF, the undersigned has executed this Certificate of
Secretary this tt?_ day of September, 1998.
Smolt R.
- Shirley R. BI om - Secretary
I, LEO BLOOM, Chief Executive Officer of the Company, do hereby certify that
SHIRLEY R. BLOOM is the duly elected and qualified Secretary of the Company and that the
signature set forth opposite her name is her genuine signature
Leo Bloom
judykjp/i rso2ccn 8.27.98
OFFICER'S CERTIFICATE PURSUANT TO
SECTION 4.1(II) OF LOAN AND SECURITY AGREEMENT
LEO BLOOM, the President and Treasurer of IF SERVICES, LTD., a
Delaware ccrporation (the "Borrower"), hereby certifies and attests to the accuracy of
each of the representations and warranties of Borrower set forth in the Loan and
Security Agreement between the Borrower and FINOVA CAPITAL CORPORATION.
Furthermore, the undersigned hereby certifies and attests that all of the conditions
precedent to the Initial advance contemplated by the Loan and Security Agreement
have been met and completed.
DATED: 1998
IF SERVICES, LTD.
By `N-
Leo Bloom
President and Treasurer
Rohrer's Super Stromboli (Application pending)
Rohrer's Pretzel Stromboli (Application pending)
Rohrer's Breakfast Stromboli (Application pending)
Rohrer's (Registered August 13, 1985, No. 1,354,524)
Rohrer's (Registered July 2, 1996, No. 1,983,974)
DATED:' September ` 1998
IF SERVICES LTD.
By (l
Leo Bloom - Presi
E nt ? „ ?
Int. Cl.: 30
Prior U.S. Cl.: 46 Reg. No. 1,354,524
United States Patent and Trademark Office RnwendAws. 13, ago
TRADEMARK
PRINCIPAL REGISTER
J&OHRERPS
jNE ED STATES CITI•
ROHREL peA PIZZA QUEEN
134 N.HANOVER STREET
CARLISLE. PA 11013
FOR: STROMBOLI. IN CLASS 301U.S CL. 411,
FIRST USE 4-?0.1914; IN' COAIMCRCE
4-30.1414,
NO CLAIM 13 MADE TO THE EXCLUSIVE
RIGHT TO USE THE REPRESENTATION OF A
STROMBOLI. APART FRCM THE MARK AS
SHOWN.
SER. NO. 413.254. FILED 4 15-1194
KICHARO A. STRASER. EXAMINING ATTOR.
HEY
S=-P-02-1998 15:37 717 763 ^751 95% P.11
1\VIIHLf J11\VIIYV L? ~
Int. Cl.: 30
Prior U.S. Cl-* 46 Reg. Na. 1,983,
99s
United States Patent and Trademark office R•?b1«? jo1y 1, 11"
TRADEMARK
pydNCIPAL REGISTER
000999
S•PRO CORPORATION (PENNSYLVANIA COR-
PORATION)
71414ORTH 11ANOVER STREET
CARLISLE, PA 17017
IN CLASS SO (U.S. CL.
FOR, STAOMBOLL C
FIRST LSE 10-13-1994: IN COMMERCE
ta1S-1994.
OWNER OF LS. REO. NO.11174,514.
THE STIPPLINO 1S A pBATURE OF TIM
MARK AND DOES NOrr INDICATE COLOR'
SER. NO.74.699,79% FILED 6 16-1995.
CYNTHIA SLOAN. "AMININO ATTORNEY
717 763 7751 95% P.12
Sgp-02-1998 :537
None
DATED: September 1998
IF SERVICES, LTD.
By
Leo Bloom - President
3 tea, -
Fork Lifts, Inc. - Operational Lease
Rotary Dock Seals
Dock Levelers
Thermal Zone Ovens, Inc.
DATED: September 4, 1998
$ 10.000.00
IF SERVICES. LTD.
By.
(
Leo Bloom - President
.1
FINOVA Loan and Security Agreement
such cue without the necessity of proving actual
damages.
9.18 o tit arts: Facsimile Execution.
This Agreement may be executed in one or more
counterparts, each of which taken together shall
constitute one and the same instrument, adrtussible
into evidence. Delivery of an executed counterpart of
this Agreement by telefacsimile shall be equally as
effective as delivery of a manually executed
counterpart of this Agreement. Any party delivering
an executed counterpart of this Agreement by
telefaesirnile sbaU also deliver a manually executed
counterpart of this Agreement, but the failure to
deliver a manually executed counterpart shall not
affect the validity, enforceability, and binding effect
of this Agreement.
9.19 Construction. The parties
acknowledge that each party and its counsel have
reviewed this Agreement and that the normal rule of
construction to the effect that any ambiguities are to
be resolved against the drafting party shall not be
employed in the interpretation of this Agreement or
Any amendments or exhibits hereto.
9.20 Time of Essence. Time is of the
essence for the performance by Borrower of the
Obligations set forth in this Agreement.
9,21 Limitation of Actions. Borrower
agrees that any claim or cause of action by Borrower
against FINOVA, or any of FINOVA'a directors,
ofBccrs, employees, agents, accountants or attorneys,
based upon, arising from, or relating to this
Agreement, or any other present or future agreement,
or any other transaction contemplated hereby or
thereby or relating hereto or thereto, or any other
matter, cause or thing whatsoever, whether or not
relating hereto or thereto, occurred, done, omitted or
suffered to be done by FINOVA, or by FINOVA's
directors, officers, employees, agents, Accountants or
attorneys, whether sounding in contract or in tort or
otherwise, shall be barred unless asserted by
Borrower by the commencement of an action or
proceeding in a court of competent jurisdiction by the
filing of a complaint within one year after the rust
act, occurrence or omission upon which such claim or
cause of action, or any put thereof, is baud and
service of a summwns and complaint on an officer of
FINOVA or any other Person authorized to accept
smite of process on behalf of FINOVA, within 30
days thercaf er. Borrower agrees that such one-year
period of rime is a reasonable and sufficient time for
Borrower to investigate and act upon any such claun
or cause of action. The one-year period provided
herew shall not be waived, tolled or extended except
by a specific written agreement of FINOVA. This
provision shall survive any termination of this Loan
Agreement or any other agreement.
9.22 Uab lity. Neither FINOVA nor any
FINOVA Affiliate shall be liable for any indirect,
special, incidental or consequential damages in
connection with any breach of contract, tort or other
wrong relating to this Agreement or the Obligations
or the establishment, administration or collection
thereof (including without limitation damages for
lost of profits, business interruption, or the like),
whether such damages are foreseeable or
unforeseeable, even if FINOVA has been advised of
the possibility of such damages. Neither FINOVA,
nor any FINOVA Affiliate shall be liable for any
claims, demands, losses or damages, of any kind
whatsoever, made, claimed, incurred or suffered by
the Borrower through the ordinary negligence of
FINOVA, or any FINOVA Affiliate. "FINOVA
AL illate" shall mean FINOVA's directors, officers,
employees, agents, attorneys or any other Person or
entity affiliated with or representing FINOVA.
9.23 Notice of Breach by FINOVA.
Borrower agrees to give FINOVA written notice of
(1) any action or inaction by FINOVA or any attorney
of FINOVA in connection with any Loan Documents
that may be actionable against FINOVA or any
attorney of FINOVA or (ii) any defense to the
payment of the Obligations for any reason, including,
but not limited to, commission of a ton or violation
of any contractual duty or duty implied by law.
Borrower agrees that unless such notice is fully given
as promptly as potable (and in any event within
thirty (30) days) after Borrower has knowledge, or
with the exercise of reasonable diligence should have
had knowledge, of any such action, inaction or
defense, Borrower shall not assert, and Borrower
shall be deemed to have waived, any claim or defense
ansing therefrom.
9.24 Anolication of Insurance Proceeds.
The net proceeds of any casualty insurance insuring
the Collateral, after deducting all costs and expenses
(including attorneys' fees) of collection. shall be
applied, at FINOVA's option, either toward replacing
or restoring the Collateral, in a manner and on terms
satisfactory to FINOVA, or toward payment of the
Obligations. Any proceeds applied to the payment of
Obligations shall be applied in such mamcr as
FINOVA may elect. In no event shall such
appUcauon relieve Borrower from payment in full of
all installments of principal and interest which
ODMAVCDO TJLMEr D0C1A2r0a\r 17
FINOVA Loan and Security Agreement
thereafter become due in the order of matunty
thereof.
9.25 Power of Attorney. Borrower
appoints FINOVA and its designees as Borrower's
attorney, with the power to endorse Borrower's name
on any checks, notes, acceptances, money orders or
other forms of payment or security that come into
FINOVA's possession; to sign Borrowers name on
any invoice or bill of lading relating to any
Receivable, on drafts against customers, on
assignments of Receivables, on notices of
assignment, financing statements and other public
records, on vchficatiom of accounts and on notices to
customers or account debtors; to send requests for
verification of Receivables to customers or account
debtors; after the occurrence of any Event of Default.
to notify the post office authorities to change the
address for deliveryof Borrower's mail to an address
designated by FINOVA and to open and dispose of
all mail addressed to Borrower; and to do all other
things FINOVA deems necessary or desirable to
carry out the terms of this Agreement Borrower
hereby ratifies and approves all acts of such attorney.
Neither FINOVA nor any of its designees shall be
liable for any acts or omissions not for any error of
judgment or mistake of fact or law while acting as
Borrowces attorney. This power, being coupled with
an interest, is irrevocable until the Obligations have
been fully satisfied and FINOVA's obligation to
provide loam hereunder shall have terminated
9.26 Governintr Law, Waivers. THIS
AGREEMENT, INCLUDING WITHOUT
LIMITATION ENFORCEMENT OF THE
OBLIGATIONS, SHALL BE INTERPRETED IN
ACCORDANCE WITH THE INTERNAL LAWS
(AND NOT THE CONFLICT OF LAWS RULES)
OF THE STATE OF ARIZONA GOVERNING
CONTRACTS TO BE PERFORMED
ENTIRELY WITHIN SUCH STATE.
BORROWER HEREBY CONSENTS TO THE
EXCLUSIVE JURISDICTION OF ANY STATE
OR FEDERAL COURT LOCATED WITHIN
THE COUNTY OF MARICOPA IN TIDE STATE
OF ARIZONA OR, AT THE SOLE OPTION OF
FINOVA, IN ANY OTHER COURT IN WHICH
FINOVA SHALL INITIATE LEGAL OR
EQUITABLE PROCEEDINGS AND WHICH
HAS SUBJECT MATTER JURISDICTION
OVER THE MATTER IN CONTROVERSY.
BORROWER WAIVES ANY OBJECTION OF
FORUM NON CONVENIENS AND VENUE.
BORROWER FURTHER WAIVES PERSONAL
SERVICE OF ANY AND ALL PROCESS UPON
IT, AND CONSENTS THAT ALL SUCH
SERVICE OF PROCESS BE MADE IN THE
MANNER SET FORTH IN SECTION 9.12
HEREOF FOR THE GIVING OF NOTICE.
BORROWER FURTHER WAIVES ANY RIGHT
IT MAY OTHERWISE HAVE TO
COLLATERALLY ATTACK ANY JUDGMENT
ENTERED AGAINST IT.
9.2: Mutual Waiver of Right to Jury
Trial. FINOVA and Borrower each hereby
waives the right to trial by jury In any action or
proceeding based upon, arising out of, or In any
way relating to: (I) this Agreement; (11) any other
present or future Itutrument or agreement
between FINOVA and Borrower; or (III) any
conduct, acts or omissions of FINOVA or
Borrower or any of their directors, officers,
employees, agents, attorneys or any other persons
affiliated with FINOVA or Borrower; to each of
the foregoing cases, whether sounding In contract
or tort or otherwise.
IF SERVICES LTD, D/B!A ROHRER'S STROMBOLI
Fed. Tax ID #23-2662008
By f?-b
Leo Bloom, President and Chief Executive Officer
ODMAVCDo=JutFl_DOCN29011J 1-8
STATE OF NEW YORK )
) ss.:
COUNTY OF NEW YORK )
On this I Ith day of September, in the year 1998, before me, the undersigned, a Notary Public in and for said
state, personally appeared Leo Bloom, personally known to me or proved to me on the basis of satisfactory evidence
to be the person whose name is subscribed to the within instrument and acknowledged to me that he executed the
same in his capacity and that by his signature on the instrument, the person or the entity upon behalf of which the
person acted, executed the instrument. n
0TARY PUBLIC FINOVA CAPITAL CO ORATION GLADYS MALDONADO
Notary Public, State of New York
No. 01 MA507"95 Queens C,o}?nty
gy Term Expires March 171951_
ar IcWo ce resident
t.0 MAYCDOCSaMr! DOCUrroau 19
Schedule to
Loan and Security Agreement
Borrower: If Services Ltd.
Address: 1302 Slate Hill Road
Building No. 3
Camp Hill, Pennsylvania 17011
Date: As of September 11, 1998
This Schedule forms an integral part of the Loan and Security Agreement between the above
Borrower and FWOVA Capital Corporation dated the above date, and all references herein and
therein to "this Agreement" shall be deemed to refer to said Agreement and to this Schedule.
"Q rantaWl means Leo Bloom and Shirley R. Bloom.
" alke, means S-Pro Corporation.
"Subordinating Creditor' means Leo Bloom.
(Section 2.1):
S600,000
(Section 2.2):
Revolvine Credit Loans: A revolving line of credit consisting of
loans against Bonrower's Eligible Receivables ("Rt_-O-•hRble Loans"
and against Borrower's Eligible inventory (" ln=12 i.oaos') (the
Receivable Loans and the inventory Loans shall be collectively referred
to as the "Revolving Credit Loans) in an aggregate outstanding
principal amount not to exceed the lesser of (a) or (b) below:
(a) Up to Three Hundred Thousand Dollars (5300,000) (the
"Revolving Credit Limit'), 101 any Loan Reserves, or
OOMAVC90C=MEF OOf.M7104U
(b) the sum of
i
(i) an amount up to 80% of the net amount of Eligible
Receivables; plu
(ii) an amount not to exceed the lesser of:
(A) up to 35% of the value of Borrowces Eligible
Inventory, calculated at the lower of cost or market value
and determined on a first-in, first-out basis, or
(B) $100,000; IM
(iii) any Loan Reserves.
Term Loan: one or more term loans against the value of Borrower's
machinery and equipment CI Term Loans") in an aggregate outstanding
principal amount not to exceed $291,000; Rrovided. that the Term
Loans, if any, shall be in such amounts and on such terms as are set
forth on separate promissory notes of Borrower from time to time, each
in form and substance satisfactory to FINOVA.
FEES (SECTION 2.6):
Revolving Interest Rate. Borrower shall pay FINOVA interest on the
daily outstanding balance of Borrower's Revolving Credit Loans at a
per annum rate of 4% in excess of the rate of interest announced
publicly by Citibank, N.A., (or any successor thereto), from time to
time as its "prime rate" (the" Prime Rate") which may not be such
institution's lowest rate. The interest rate chargeable hereunder in
respect of the Revolving Credit Loans (herein, the "R vol Interest
H&') shall be increased or decreased, as the case may be, without
notice or demand of any kind, upon the announcement of any change in
the Prime Rate. Each change in the Prime Rate shall be effective
hereunder on the first day following the announcement of such change.
Interest charges and all other fees and charges herein shall be computed
on the basis of a year of 360 days and actual days elapsed and shall be
payable to FINOVA in arrears on the first day of each month.
Tenn Interest Rate: Borrower shall pay FINOVA interest on the daily
outstanding balance of the Term Loans at a per annum rate of 4% in
excess of the rate of interest announced publicly by Citibank, N.A., (or
any successor thereto), from time to time as its "prime rate" (the "
Prime Rate") which may not be such institution's lowest rate. The
interest rate chargeable hereunder in respect of the Revolving Credit
Loans (herein, the "Term Interest Rate") shall be increased or
OOMAVCOOCS"EF OOC'41'0N 2
decreased, as the case may be, without notice or demand of any kind,
upon the announcement of any change in the Prime Rate. Each change
in the Prime Rate shall be effective hereunder on the first day following
the announcement of such change. Interest charges and all other fees
and charges herein shall be computed on the basis of a year of 360 days
and actual days elapsed and shall be payable to FINOVA in arrears on
the first day of each month.
Minimum Interest Charge. With respect to each calendar month or
portion thereof during the term of this Agreement (excluding the
calendar month in which this Agreement is executed), Borrower shall
also pay FINOVA, on the first day of the next month, as a minimum
interest charge, which charge, if any, shall be the amount equal to the
difference between the interest rate charged against $400,000 and the
actual interest charges accrued for the immediately preceding month
(the "Minimum Interest Charge"). Notwithstanding the occurrence
of any Event of Default hereunder or termination of this Agreement by
FINOVA as a result thereof, the Minimum Interest Charge shall be paid
by Borrower for the unexpired portion of the Initial Term or any
Renewal Term of this Agreement.
Collateral Monitoring Fee. On the first day of each calendar month
following the closing of this transaction, Borrower shall pay FINOVA
a collateral monitoring fee of $1,000 ("Collateral Monitoring Fee").
Facility Fee. Borrower shall pay to FINOVA a facility fee equal to 1%
per annum of the amount of the Total Facility ("Facility Fee"). The
Facility Fee shall be deemed fully earned and payable on the Closing
Date and thereafter shall be payable annually, commencing upon the
fast anniversary of the date of this Agreement and continuing on each
subsequent anniversary thereof.
Examination Fee. Borrower agrees to pay to FINOVA an examination
fee in the amount of $750 per person per day in connection with each
audit or examination of Borrower performed by FINOVA prior to or
after the date hereof, plus all costs and expenses incurred in connection
therewith (the "Examination Fee"). Without limiting the generality of
the foregoing, Borrower shall pay to FINOVA an initial Examination
Fee in an amount equal to $750 per person per day, plus all costs and
expenses incurred in connection therewith. Such initial Examination
Fee shall be deemed fully earned at the time of payment and due and
payable upon the closing of this transaction, and shall be deducted from
any good faith deposit paid by Borrower to FINOV A prior to the date
of this Agreement.
ODMATCDOCYJLMEF DOCti17ww
CONDITIONS OF CLOSING (Section 4.1):
The obligation of FINOVA to make the initial advance hereunder or to
issue or arrange for the issuance of the initial Letter of Credit hereunder
is subject to the fulfillment, to the satisfaction of FINOVA and its
counsel, of each of the following conditions, in addition to the
conditions set forth in Sections 4.1 and 4.2 above:
(a) Lease and Landlord's Consent (Section 4.1(t)). Location(s):
1302 Slate Hill Road
Building No. 3
Camp Hill, Pennsylvania 17011
Harrisburg Cold Storage
1125 Berry Hill Street
Harrisburg, Pennsylvania 17105
(b) Life Insurance (Section 4.1(u)). Life insurance policies shall be
maintained on the following individuals and at the following amounts:
Leo Bloom, of not less than $600,000
(c) No Material Adverse Change (Section 4.1(v)). Draft financial
statements for Seller dated as of June 30, 1998. Further, no material
adverse change has occurred in the Borrower's business, operations,
financial condition, or assets or in the prospect of repayment of the
Obligations since June 30, 1998.
Borrower shall cause the conditions precedent set forth in Section 4.1
of this Agreement and set forth above in this Schedule to be satisfied,
and shall provide evidence to FINOVA that all such conditions
precedent have been satisfied, on or before September 18, 1998.
BORROWER INFORMATION:
Borrowees State of Incorporation (Section 5.1): Delaware.
Borrowees copyrights, patents trademarks, and licenses (Section 5.5): Borrower to Supply
on Separate Exhibit.
Fictitious Names/Prior Corporate Names (Section 5.2):
Prior Corporate Names: None
ooruvrnocsru+er oocurra\5 4
Fictitious Names: Rohrces Stomboli
IFS Limited
Borrower Locations (Section 5.16)
1302 Slate Hill Road
Building No. 3
Camp Hill, Pennsylvania
Harrisburg Cold Storage
1125 Berry Hill Street
Harrisburg, Pennsylvania 17105
Borrower's Federal Tax Identification Number (Section 5.16): 23-2662008
Permitted Encumbrances (Section 1.1): None.
6.1.13):
Borrower shall comply with all of the following covenants.
Compliance shall be determined as of the end of each month or
quarter (as determined by FINOVA in its Permitted Discretion),
except as otherwise specifically provided below:
Net Worth. Borrower shall maintain Net Worth of not less than Two Hundred
Fifty Thousand Dollars ($250,000);
Senior Debt Service Coverage Ratio As of the last day of each calendar quarter
ended March 31, June 30, September 30 or December 31,
Borrower's Operating Cash Flow/Actual for the consecutive 12-
month period ending as of such last day must be at least 1.0 times
the amount necessary to meet Borrower's Senior Contractual Debt
Service for such 12-month period; 2gvided however. that, with
respect to the calculations set forth herein for the period from the
Closing Date through December 31, 1998, Borrower's Operating
Cash Flow/Actual and Senior Contractual Debt Service shall be
determined beginning as of June 1, 1998 (the "Start Date") and
provided further. that all such determinations shall be made on a
consolidated basis.
(SECTION
Employee Advances: Borrower shall not make any loans or advances to Employees
except in the ordinary course of business and consistent with past
practices of Borrower in an aggregate amount not exceeding at any
time $5,000.
ODMAWDOCSAMEF D00A2601?3
Existing Guaranties: Borrower to describe on separate Exhibit.
Capital Expenditures: Without prior written notice to FINOVA, Borrower shall not make
or incur any Capital Expenditure if, after giving effect thereto, the
aggregate amount of all Capital Expenditures by Borrower in the
fiscal year (beginning with the current fiscal year) until the first
anniversary of this Agreement would exceed $100,000, and
$25,000 in each fiscal year thereafter.
Compensation: Borrower shall not pay total compensation, including salaries,
withdrawals, fees, bonuses, commissions, drawing accounts and
other payments, whether directly or indirectly, in money or
otherwise, during any fiscal year to all of Borrower's executives,
officers and directors (or any relative thereof) in an amount in
excess of $100,000 during the current fiscal year and thereafter in
an amount in excess of 115% of such total compensation paid in
the immediately preceding fiscal year.
Indebtedness: Without prior written notice to FINOVA, Borrower shall not
create, incur, assume or permit to exist any Indebtedness
(including Indebtedness in connection with Capital Leases) in
excess of $25,000 other than (i) the Obligations, (ii) trade payables
and other contractual obligations to suppliers and customers
incurred in the ordinary course of business and (iii) other
Indebtedness existing on the date of this Agreement and reflected
in Exhibit 6.2.11 attached hereto (other than Indebtedness paid on
the date of this Agreement from proceeds of the initial advances
hereunder).
IRTING REQUIREMENTS (SECTION 9.1):
1. Borrower shall provide FINOVA with monthly agings aged by invoice
date and reconciliations of Receivables within ten (10) days after the
end of each month.
2. Borrower shall provide FINOVA with monthly accounts payable
agings aged by invoice date, outstanding or held check registers and
inventory certificates within ten (10) days after the end of each month.
3. Borrower shall provide FINOVA with monthly perpetual inventory
reports for the Inventory valued on a first-in, fast-out basis at the
lower of cost or market (in accordance with GAAP) or such other
inventory reports as are reasonably requested by FINOVA, all within
ten (10) days after the end of each month.
ooMAVCDocsxMEr DOCU79ons 6
4. Borrower shall provide FINOVA with monthly unaudited financial
statements within thirty (30) days after the end of each month.
5. Borrower shall provide FINOVA with audited consolidated and
consolidating fiscal financial statements within ninety (90) days after
the end of each fiscal year, as more specifically described in Section
9.1(b) hereof, and with an opinion issued by a Certified Public
Accountant which is acceptable to FINOVA.
6.
Borrower shall provide FINOVA with annual operating budgets
(including income statements, balance sheets and cash flow
statements, by month) for the upcoming fiscal year of Borrower within
thirty (30) days prior to the end of each fiscal year of Borrower.
7. Borrower's balance sheets for purposes of the definition of Prepared
Financials shall be as of end of fiscal year.
8. Borrower shall provide FINOVA with a weekly borrowing base
certificate on the last business day of each week and each time the
Borrower requests an advance.
TERM (SECTION 9.2):
The initial tern of this Agreement shall be two year(s) from the date
hereof (the "Initial Term") and shall be automatically renewed for
successive periods of one (1) year each (each, a "Renewal Term"),
unless earlier terminated as provided in Section 7 or 9.2 above or
elsewhere in this Agreement.
TERMINATION FEE (Section 9.2):
(A) Revolving Credit Loans Facility. The Termination Fee applicable
to the Revolving Credit Loans facility provided for in Section 9.2(d)
shall be an amount equal to the following percentage of the Revolving
Credit Limit:
(i) five percent (5%), if such early termination occurs on or prior to
the first anniversary of the date of this Agreement;
(ii) four percent (4%), if such early termination occurs after the irst
anniversary of the date of this Agreement.
(B) Term Loans. The Termination Fee applicable to the Tern Loans
provided for in Section 9.2(d) shall be equal to :
OOMAVCDO AMEP.DUCA260 W
(i) five percent (5%) of the amount prcpaid if such prepayment is
made during the Loan Year beginning on the Closing Date; and
(ii) four percent (4%) of the amount prepaid if such prepayment is
made after the first anniversary of the date of this Agreement.
DISBURSEMENT (Section 9.11):
Unless and until Borrower otherwise directs FINOVA in writing, all
loans shall be wired to Borrower's following operating account:
Pennsylvania State Bank
ABA #031-302-447
Account # 151-0901 -0
Payee: IF Services Ltd.
IF SERVICES LT .
By
Leo Bloom, P i en and
Chief Executive 0111cer
STATE OF NEW YORK )
) ss.:
COUNTY OF NEW YORK)
FINOVA CAPITA RP TION
By
?-d2 ---- -
War leill d/Vice President
On this l Ith day of September, in the year 1998, before me, the undersigned, a Notary Public in and
for said state, personally appeared Leo Bloom, personally known to me or proved to me on the basis of
satisfactory evidence to be the person whose name is subscribed to the within instrument and
acknowledged to me that he executed the same in his capacity and that by his signature on the instrument,
the person or the entity upon behalf of which the person acted, executed the instrument.
"NOTARY P LIC
OLADYS MALDONADO
Notary Pubtlp, $tate Ot New vnrk
NO.OIMA507"9ti Oua.n• r .-nr
Term Expires M.• ' - 99
ODMAW DOWAMEF_DOCA HOW
EXHIBIT 4.1
DOCUMENT CHECKLIST
FINOVA CAPITAL CORPORATION
Borrower: IF Services Ltd.
DOCUMENT CHECKLIST
PART I: PARTIES
aver:
IF Services Ltd.
1302 Slate Hill Road
Building No. 3
Camp Hill, Pennsylvania 17011
FINOVA Capital Corporation CFINOVK)
111 West 40th Street
New York, New York 10018
Attn: Brad Mitch
Ruskin, Moscou, Evans & Faltischek, P.C.
170 Old Country Road
Mineola, New York 11501
Attn: Jeffrey A. Wurst, Esq.
Karen J. DeSalvo, Esq.
Baskin, Leisawitz, Heller & Abrshamowitz, P.C.
2201 Ridgewood Road
Suite 400
Wyomissing, Pennsylvania 19810
Attn: Charles Phillips, Esq.
0DMUV000CMMU_D0CVA311%1
PART 11: DOCUMENTS
Responsible Executed
E= Appr oval Received
Loan and Security Agreement RME&F 9111/98
Secured Promissory Note RME&F 9/11198
Action Without A Meeting by Board of Directors (Borrowing Resolutions) Borrower 9/11/98
Incumbency Certificate Borrower 9111198
Form of Assignment of Lease Borrower 9111/98
Certificate of President Borrower 9/11/98
Landlord/Mortgagee Waivers:
a. 1302 Slate Hill Road
Camp Hill, Pennsylvania 17011
b. 1125 Berry Hill Street
Harrisburg, Pennsylvania
Subordination Agreement with Leo Bloom
Opinion of Borrower's Counsel
Articles of Incorporation of Borrower
Bylaws of Borrower
Cash Flow Projection and Pro-Forma Balance Sheet
Evidence of Insurance Policies of Borrower
Payment of Initial Fiold Examination
Payment of Secured Party Expenses as of Closing
$in Borrowing Availability
Certificate of Good Standing as a Domestic Corporation (Delaware)
Borrower 9111198
Borrower 9111/98
Borrower
Borrower
Borrower
Borrower
Borrower
Borrower
Borrower
Borrower
Borrower
Borrower
9/11198
9/11/98
9/11/98
9/11/98
9/11198
9/11/98
9/11198
9/11198
9111198
9/11198
ODMAVC TAMEF DDCV471M
S291,000 New York, New York
As of September 11, 1998
FOR VALUE RECEIVED, IF SERVICES LTD., a Delaware corporation
("Borrower"), promises to pay to the order of FINOVA CAPITAL CORPORATION, a
Delaware corporation ("FINOVA"), at its offices at 111 West 40'° Street, 14' Floor, New
York, New York 10018, or at such other place or places as FINOVA may from time to time
designate in writing, the principal sum of Two Hundred Ninety-One Thousand Dollars
($291,000), plus interest in the manner and upon the terms and conditions set forth below.
This Secured Promissory Note is made pursuant to that certain Loan and Security
Agreement of even date between the FINOVA and Borrower (the "Loan Agreement'), the
provisions of which are incorporated herein by this reference. Capitalized terms herein,
unless otherwise noted, shall have the meaning set forth in the Loan Agreement.
1.0 Schedule of Paymentst Rate and Payment of Interest: Prepayment.
1.1 This Note shall be payable as follows:
a. Twenty-three (23) equal successive monthly installments of principal in
the amount of Four Thousand Eight Hundred Fifty Dollars ($4,850.00) together with accrued
interest thereon payable on the first day of each month, beginning October 1, 1998, and
continuing through and including August 1, 2000; and
b. A final installment payable out the first day of September, 2000, in the
amount of the principal balance together with accrued interest thereon remaining unpaid.
1.2 Prepayment may be made under this Note in whole but not in part,
subject to the Termination set forth in the Loan Agreement, provided that such prepayment is
preceded by not less than five (5) business days prior written notice to FINOVA and
accompanied by all accrued and unpaid interest and the full amount of the applicable
Termination Fee. Notwithstanding anything herein to the contrary, in the event the Loan
Agreement is terminated by Borrower, by FINOVA or by any other person at any time, then
the entire unpaid principal balance of this Note, together with all accrued and unpaid interest
hereon and the full amount of the applicable Termination Fee, shall become immediately due
and payable in full on the effective date of such termination, without presentment, notice or
demand of any kind.
1.3 Interest shall be computed on the basis of a 360-day year for the actual
number of days elapsed, and shall be at the rate of four (4) percentage points above the Prime
Rate (as hereinafter defined), computed on the basis of a 360-day year; proms, w v ,
upon the occurrence and during the continuance of an event of default (as hereinafter
defined), interest shall accrue on the outstanding principal balance of this Note at a default
rate (the "Default Rate") of six (6) percentage points above the Prime Rate, and shall be
oDMA VCDLCSAMFP_DOCA111T1
payable on demand. "Prime Rate" means, for any day, the rate of interest per annum (over a
year of 360 days) announced by Citibank, N.A. (the "Dmk"), from time to time, as its "base
rate" (or any successor thereto) in effect on such day. The Prime Rate is not necessarily the
lowest rate charged by the Bank. As of the date of this Note, the Prime Rate is eight and
one-half percent (8 1/2%) per annum. The applicable rate of interest assessed hereunder will
be increased or decreased from time to time hereafter in an amount equal to any increase or
decrease hereafter made by the Bank in the Prime Rate. A change in the Prime Rate shall be
effective on the first day following such change.
2.0 Events of Defaults, Remedies.
2.1 The occurrence of any one of the following events shall constitute a
default by Borrower under this Note (hereinafter an "Event of Default"): (a) if Borrower
fails to pay to FINOVA an installment of principal or interest hereunder when due; (b) if
Borrower fails to pay any of its Obligations (as defined in the Loan Agreement) to FINOVA
when due and payable or declared due and payable; (c) if Borrower fails or neglects to
perform, keep or observe any term, provision, covenant, warranty or representation contained
in this Note or the Loan Agreement (other than as referred to in (a) or (b) of this paragraph),
which is required to be performed, kept or observed by Borrower or if a default occurs under
the Loan Agreement after giving effect to applicable cure periods, if any; or (d) the
occurrence of a default or an event of default under any agreement, instrument or document
heretofore, now or at any time or times hereafter delivered to FINOVA by Borrower or by
any guarantor of part or all of Borrower's Obligations to FINOVA.
2.2 Upon the occurrence of any Event of Default hereunder, in addition to
FINOVA's right to charge interest on the Obligations at the Default Rate: (a) at the option of
FINOVA, the entire unpaid amount of all of the Obligations, including without limitation the
Termination Fee, shall become immediately due and payable without demand, notice or legal
process of any kind; (b) FINOVA may, at its option, without demand, notice or legal process
of any kind, exercise any and all rights and remedies granted to it by the Loan Agreement or
by any other agreement now or hereafter existing between FINOVA and Borrower or
between FINOVA and any guarantor of part or all of Borrower's liabilities to FINOVA; and
(c) FINOVA may at its option exercise from time to time any other rights and remedies
available to it under the Uniform Commercial Code or other law of the State of Arizona.
2.3 The remedies of FWOVA as provided herein and in the Loan
Agreement shall be cumulative and concurrent, and may be pursued singularly, successively,
or together, at the sole discretion of FINOVA. No act of omission or commission of
FINOVA, including specifically any failure to exercise any right, remedy or recourse, shall
be deemed to be a waiver or release of the same, such waiver or release to be effected only
through a written document executed by FINOVA and then only to the extent specifically
recited therein. A waiver or release with reference to any one event shall not be construed as
continuing, as a bar to, or as a waiver or release of, any subsequent right, remedy or recourse
as to a subsequent event.
ODMAWDOCSAMEF DOCA295M .2-
3.0 General Provisions.
3.1 Borrower warrants and represents to FINOVA that Borrower has used
and will continue to use the loans and advances represented by this Note solely for proper
business purposes, and consistent with all applicable laws and statutes.
3.2 This Note is secured by the Collateral described in the Loan
Agreement.
3.3 Borrower waives presentment, demand and protest, notice of protest,
notice of presentment and all other notices and demands in connection with the enforcement
of FINOVA's rights hereunder, except as specifically provided and called for by this Note,
and hereby consents to, and waives notice of, the release, addition, or substitution, with or
without consideration, of any collateral or of any person liable for payment of this Note. Any
failure of FINIOVA to exercise any right available hereunder or otherwise shall not be
construed as a waiver of the right to exercise the same or as a waiver of any other right at any
other time.
3.4 If this Note is not paid when due or upon the occurrence of an Event of
Default, Borrower further promises to pay all costs of collection, foreclosure fees, attorneys
fees and expert witness fees incurred by FWOVA, whether or not suit is filed hereon, and the
fees, costs and expenses as provided in the Loan Agreement.
3.5 The contracted for rate of interest of the loan contemplated hereby,
without limitation, shall consist of the following: (i) the interest rate set forth on the
Schedule, calculated and applied to the principal balance of this Note in accordance with the
provisions of this Note: (ii) interest after an Event of Default, calculated and applied to the
amounts due under this Note in accordance with the provisions hereof; and (iii) all Additional
Sums (as herein deemed), if any. Borrower agrees to pay an effective contracted for rate of
interest which is the sum of the above-referenced elements. All examination fees, attorneys
fees, expert witness fees, letter of credit fees, collateral monitoring fees, closing fees, facility
fees, Termination Fees, Minimum Interest Charges, other charges, goods, things in action or
any other sums or things of value paid or payable by Borrower (collectively, the "Additional
agate', whether pursuant to this Note, the Loan Agreement or any other documents or
instruments in any way pertaining to this lending transaction, or otherwise with respect to
this lending transaction, that under any applicable law may be deemed to be interest with
respect to this lending transaction, for the purpose of any applicable law that may limit the
maximum amount of interest to be charged with respect to this lending transaction, shall be
payable by Borrower as, and shall be deemed to be, additional interest and for such purposes
only, the agreed upon and "contracted for rate of interest" of this lending transaction shall be
deemed to be increased by the rate of interest resulting from the inclusion of the Additional
Sums.
3.6 It is the intent of the parties to comply with the usury law of the State of
Arizona (the "Aonlicable Usury .1w" ). Accordingly, it is agreed that notwithstanding any
ODMAWCDOCSAMFI-DOCAUSM .3
i
provisions to the contrary in this Note, or in any of the documents securing payment hereof
or otherwise relating hereto, in no event shall this Note or such documents require the
payment or permit the collection of interest in excess of the maximum Interest Rate, then in
any such event (1) the provisions of the paragraph shall govern and control, (2) neither
Borrower nor any other person or entity now or hereafter liable for the payment hereof shall
be obligated to pay the amount of such interest to the extent that it is in excess of the
Maximum Interest Rate, (3) any such excess which may have been collected shall be either
applied as a credit against the then unpaid principal amount hereof or refunded to Borrower,
at FINOVA's option, and (4) the effective rate of interest shall be automatically reduced to
the Maximum Interest Rate. It is further agreed, without limiting the generality of the
foregoing, that to the extent permitted by the Applicable Usury Law; (x) all calculations of
interest which are made for the purpose of determining whether such rate would exceed the
Maximum Interest Rate shall be made by amortizing, prorating, allocating and spreading
during the period of the full stated term of the loan evidenced hereby, all interest at any time
contracted for, charged or received from Borrower or otherwise in connection with such loan;
and (y) in the event that the effective rate of interest on the loan should at any time exceed
the Maximum Interest Rate, such excess interest that would otherwise have been collected
had there been no ceiling imposed by the Applicable Usury Law shall be paid to FINOVA
from time to time, if and when the effective interest rate on the loan otherwise fall below the
Maximum Interest Rate, until the entire amount of interest which would otherwise have been
collected had there been no ceiling imposed by the Applicable Usury Law has been paid in
full. Borrower further agrees that should the Maximum Interest Rate be increased at any
time hereafter because of a change in the Applicable Usury Law, then to the extent not
prohibited by the Applicable Usury Law, such increases shall apply to all indebtedness
evidenced hereby regardless of when incurred; but, again to the extent not prohibited by the
Applicable Usury Law, should the maximum Interest Rate be decreased because of a change
in the Applicable Usury Law, such decreases shall not apply to the indebtedness evidenced
hereby regardless of when incurred.
3.7 FINOVA may at any time transfer this Note and FINOVA's rights in
any or all collateral securing this Note, and FINOVA thereafter shall be relieved from all
liability with respect to such collateral arising after the date of such transfer.
3.8 This Note shall be binding upon Borrower and its legal representatives,
successors and assigns. Wherever possible, each provision of this Note shall be interpreted in
such manner as to be effective and valid under applicable law, but if any provision of the
Note shall be prohibited by or invalid under such law, such provision shall be severable, and
be ineffective to the extent of such prohibition or invalidity, without invalidating the
remaining provision of this Note.
THIS NOTE HAS BEEN DELIVERED FOR ACCEPTANCE BY FINOVA
IN PHOENIX, ARIZONA AND SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE INTERNAL LAWS (AS OPPOSED TO THE CONFLICTS
OF LAW PROVISIONS) OF THE STATE OF ARIZONA, AS THE SAME MAY FROM
TIME TO TIME BE IN EFFECT, INCLUDING, WITHOUT LIMITATION, THE
0DMA%PCD0CSPIMPF_D0CA29$ W -4-
UNIFORM COMMERCIAL CODE AS ADOPTED IN ARIZONA. BORROWER
HEREBY (i) IRREVOCABLY SUBMITS TO THE JURISDICTION OF ANY STATE OR
FEDERAL COURT LOCATED IN MARICOPA COUNTY, ARIZONA OVER ANY
ACTION OR PROCEEDING TO ENFORCE OR DEFEND ANY MATTER ARISING
FROM OR RELATED TO THIS NOTE; (ii) WAIVES PERSONAL SERVICE OF ANY
AND ALL PROCESS UPON BORROWER, AND CONSENTS THAT ALL SUCH
SERVICE OF PROCESS BE MADE BY MESSENGER, CERTIFIED MAIL OR
REGISTERED MAIL DIRECTED TO BORROWER AT THE ADDRESS SET FORTH
BELOW AND SERVICE SO MADE SHALL BE DEEMED TO BE COMPLETED UPON
THE EARLIER OF ACTUAL RECEIPT OR THREE (3) DAYS AFTER THE SAME
SHALL HAVE BEEN POSTED TO BORROWER'S ADDRESS; (iii) IRREVOCABLY
WAIVES, TO THE FULLEST EXTENT BORROWER MAY EFFECTIVELY DO SO,
THE DEFENSE OF AN INCONVENIENT FORUM TO THE MAINTENANCE OF ANY
SUCH ACTION OR PROCEEDING; (iv) AGREES THAT A FINAL JUDGMENT IN ANY
SUCH ACTION OR PROCEEDING SHALL BE CONCLUSIVE AND MAY BE
ENFORCED IN ANY OTHER JURISDICTION BY SUIT ON THE JUDGMENT OR IN
ANY OTHER MANNER PROVIDED BY LAW; (v) AGREES NOT TO INSTITUTE ANY
LEGAL ACTION OR PROCEEDING AGAINST FINOVA OR ANY OF FINOVA'S
DIRECTORS, OFFICERS, EMPLOYEES, AGENTS OR PROPERTY, CONCERNING
ANY MATTER ARISING OUT OF OR RELATING TO THIS NOTE IN ANY COURT
OTHER THAN ONE LOCATED IN MARICOPA COUNTY, ARIZONA; AND (vi)
IRREVOCABLY WAIVES ANY "GHT TO A TRIAL BY JURY IN ANY ACTION
ARISING UNDER OR IN CONNECTION WITH THIS NOTE. NOTHING IN THIS
PARAGRAPH SHALL AFFECT OR IMPAIR FINOVA'S RIGHT TO SERVE LEGAL
PROCESS IN ANY MANNER PERMITTED BY LAW OR FINOVA'S RIGHT TO BRING
ANY ACTION OR PROCEEDING AGAINST BORROWER OR BORROWER'S
PROPERTY IN THE COURTS OF ANY OTHER JURISDICTION.
If an Event of Default shall occur under this Note, or a default shall exist under the
Loan Agreement after giving effect to applicable cure periods, if any, or a default shall
exist under any other agreements entered into between Borrower and FINOVA or delivered
by Borrower to FINOVA, Borrower hereby irrevocably authorizes and empowers any
attorney or clerk of any court of record in the Commonwealth of Pennsylvania or
elsewhere (either by amicable action or in a proceeding commenced by Complaint) to
appear for and CONFESS JUDGMENT against all, or any of them, (a) for such stuns for
which the Borrower may become liable to FINOVA and/or (b) in any action instituted by
FINOVA to obtain possession of any Collateral securing the Borrower's Obligations
hereunder, with or without declaration, with costs of suit, without stay of execution, and
with fifteen percent (15%) of the principal amount thereof but not less than $5,00, added
for attorney's fees together with interest on said judgment at the highest annual rate
permitted by law, or if no such rate is specified by law, then at the rate set forth in Section
1.3 of this Note, calculated from the date of default until full payment of same is received
by FINOVA. Borrower, (a) waives the right of inquisition on any Collateral levied on,
and agrees that the Collateral may be sold on a Writ of Execution or by secured party
ODMA`JC SAMFt D0C%4383W - 5
public or private sale; (b) waive and release all relief from any and all appraisement, stay,
exemption or appeal clause of any state now in force or hereafter enacted; and (c) releases
FINOVA and any said attorney from all errors and damages arising out of compliance with
this warrant.
THE AUTHORITY AND POWER TO APPEAR FOR AND CONFESS OR
ENTER JUDGMENT AGAINST THE BORROWER SHALL NOT BE EXHAUSTED
BY THE INITIAL EXERCISE THEREOF, AND THE SAME MAY BE EXERCISED
FROM TIME TO TIME, AS OFTEN AS FINOVA SHALL DEEM NECESSARY
AND DESIRABLE, FOR THE SAME OR SUBSEQUENT DEFAULTS AND
IRRESPECTIVE OF ANY PUBLIC OR PRIVATE SALE OF THE COLLATERAL
OR ANY FORECLOSURE PROCEEDINGS AND FOR SO DOING THIS
AGREEMENT SHALL BE A GOOD AND SUFFICIENT WARRANT.
IF SERVICES LTD.
a Delaware corporation
By:009 Q
Leo Bloom, President
and Chief Executive Officer
Federal Taxpayer Identification
Number: 23-2662008
Address: 1302 Slate Hill Road
Building No. 3
Camp Hill, Pennsylvania 17011
0DMAVCD0CMMEF-D0CW21$W .6-
STATE OF NEW YORK )
) ss.:
COUNTY OF NEW YORK )
On this 11th day of September, in the year 1998, before me, the undersigned, a Notary
Public in and for said state, personally appeared Leo Bloom, personally (mown to me or
proved to me on the basis of satisfactory evidence to be the person whose name is subscribed
to the within instrument and acknowledged to me that he executed the same in his capacity
and that by his signature on the instrument, the person or the entity upon behalf of which the
person acted, executed the instrument.
ANOTY UBLIC
NADO
OtADYS MA100
Notry Pubft Stu Of Now York
No. 01 MA5074495 Ouans nrj
Term Expires March 171
ADMAVCD0C"ME?_D0CI4215 f -7-
CONFESSION OF JUDGMENT EXPLANATION AND DISCLOSURE OF
RIGHTS/WAIVERS
Lender: FINOVA Capital Corporation
Borrowers: IF Services Ltd.
Guarantor/
Surety: Leo Bloom
1. Lender has agreed to make certain loans and advances in the principal amount of Six
Hundred Thousand Dollars ($600,000) (the "Loan") to Borrower pursuant to that certain Loan and
Security Agreement dated as of September 11, 1998 by and between Lender and Borrower and the
Secured Promissory Note dated as of September 11, 1998 executed by Borrower and delivered to
Lender (collectively, the "Security Agreement"). To induce Lender to make such Loan, undersigned
("Obligor") has agreed to become a guarantor and surety who will be primarily liable for the
payment and performance of the Loan as if Obligor was the Borrower. In connection therewith,
Obligor is executing and delivering to Lender that certain Secured Continuing Guaranty (the
"Instruments") which contain (or have attached thereto) warrants of attomey to confess judgment
(the "Warrants") against Obligor.
2. Obligor clearly and specifically acknowledges, understands and agrees that:
(A) THE WARRANTS CONTAINED IN (OR ATTACHED TO) THE INSTRUMENTS
ARE PROVISIONS PURSUANT TO WHICH LENDER MAY ENTER JUDGMENT BY
CONFESSION AGAINST OBLIGOR.
(B) THE INSTRUMENTS AND/OR WARRANTS ALSO CONTAIN PROVISIONS
UNDER WHICH LENDER MAY, AFTER ENTRY OF JUDGMENT AND WITHOUT EITHER
NOTICE OR A HEARING, FORECLOSURE UPON, ATTACH, LEVY OR TAKE POSSESSION
OF OR OTHERWISE SEIZE PROPERTY OF OBLIGOR, IN FULL OR PARTIAL PAYMENT
OF THE JUDGMENT.
(C) BY SIGNING THE INSTRUMENTS AND/OR WARRANTS CONTAINING THE
CONFESSION OF JUDGMENT CLAUSES, OBLIGOR WILL AUTHORIZE LENDER TO
ENTER A JUDGMENT AGAINST OBLIGOR AND IN LENDER'S FAVOR WHICH WILL GIVE
LENDER A LIEN UPON ANY REAL ESTATE OBLIGOR MAY OWN, INCLUDING (IF
OBLIGOR IS AN INDIVIDUAL) OBLIGOR'S HOME.
(D) BY SIGNING THE INSTRUMENTS AND/OR WARRANTS CONTAINING THE
CONFESSION OF JUDGMENT CLAUSES, OBLIGOR WILL GIVE UP THE RIGHT TO ANY
NOTICE OR OPPORTUNITY TO BE HEARD PRIOR TO THE ENTRY OF THIS JUDGMENT
ON THE RECORDS OF THE COURT.
(E) BY SIGNING THE INSTRUMENTS AND/OR WARRANTS CONTAINING THE
CONFESSION OF JUDGMENT CLAUSES, OBLIGOR WILL AGREE THAT LENDER CAN
ENTER THIS JUDGMENT PRIOR TO PROOF OF NON-PAYMENT OR OTHER DEFAULT ON
OBLIGOR'S PART.
(F) BY SIGNING THE INSTRUMENTS AND/OR WARRANTS CONTAINING THE
CONFESSION OF JUDGMENT CLAUSES, OBLIGOR WILL SUBJECT ALL OF OBLIGOR'S
PROPERTY, BOTH REAL AND PERSONAL, TO EXECUTION (AND SHERIFF'S SALE),
PURSUANT TO THIS JUDGMENT, PRIOR TO PROOF OF NON-PAYMENT OR OTHER
DEFAULT ON THE PART OF OBLIGOR OR ANY OTHER PARTY.
(G) BY SIGNING THE INSTRUMENTS AND/OR WARRANTS CONTAINING THE
CONFESSION OF JUDGMENT CLAUSES, OBLIGOR WILL BE UNABLE TO CHALLENGE
THIS JUDGMENT, SHOULD LENDER ENTER IT, EXCEPT BY PROCEEDING TO OPEN OR
STRIKE THE JUDGMENT, AND SUCH A PROCEEDING WILL RESULT IN ATTORNEY'S
FEES AND COSTS WHICH OBLIGOR WILL HAVE TO PAY.
3. Obligor acknowledges, knows and understands that it is the confession of judgment clause(s)
in the Instruments and/or Wan-ants which give(s) Lender the rights enumerated in subparagraphs A
through G of Paragraph 2 above. IF OBLIGOR DOES NOT SIGN THE INSTRUMENTS AND/OR
WARRANTS WHICH CONTAIN CONFESSION OF JUDGMENT CLAUSES(S). OBLIGOR
UNDERSTANDS THAT OBLIGOR WOULD HAVE THE FOLLOWING:
(A) THE RIGHT TO HAVE NOTICE AND AN OPPORTUNITY TO BE HEARD
PRIOR TO ENTRY OF JUDGMENT.
(B) THE RIGHT TO HAVE THE BURDEN OF PROVING DEFAULT REST UPON
LENDER BEFORE OBLIGOR'S PROPERTY COULD BE EXPOSED TO EXECUTION ON THE
JUDGMENT.
(C) THE RIGHT TO AVOID THE ADDITIONAL EXPENSE OF ATTORNEY'S FEES
AND COSTS INCIDENT TO THE OPENING OR STRIKING OFF OF A CONFESSED
JUDGMENT.
4. With full and complete understanding of these rights which Obligor has prior to signing the
Instruments and/or Warrants and being clearly aware that these rights will be given up, waived,
relinquished, and abandoned if Obligor signs the Instruments and/or Warrants, OBLIGOR
NEVERTHELESS FREELY KNOWINGLY INTELLIGENTLY AND VOLUNTARILY
CHOOSES TO SIGN THE INSTRUMENTS AND/OR WARRANTS. WITH OBLIGOR'S
INTENTION BEING TO GIVE UP WAIVE RELINQUISH AND ABANDON OBLIGOR'S
KNOWN RIGHTS (AS DESCRIBED IN PARAGRAPH 3 BOVE) AND TO SUBJECT
OBLIGOR TO THE CIRCUMSTANCES DESCRIBED IN PARAGRAPH 2 ABOVE.
5. Obligor acknowledges, represents and warrants to Lcnder that:
(A) Obligor's annual income exceeds $10,000;
(B) Obligor has received a copy of this disclosure document at or before the time of
signing the Instruments and/or Warrants; and
(C) The Loan has been advanced for business purposes.
IN WITNESS WHEREOF, Obligor intending to be legally bound, has executed this disclosure
dated as of the 11th day of September, 1998.
We have read this entire form and we fully understand its contents.
WITNESS: IF SERVICES LTD.
4h.. By:
Lco B om, President and Chief Execut a Officer
Leo Bloom, Guarantor
STATE OF NEW YORK )
) ss.:
COUNTY OF NEW YORK )
On this 11th day of September, in the year 1998, before me, the undersigned, a Notary Public
in and for said state, personally appeared Leo Bloom, personally (mown to me or proved to me on
the basis of satisfactory evidence to be the person whose name is subscribed to the within instrument
and acknowledged to me that he executed the same in his capacity and that by his signature on the
instrument, the person or the entity upon behalf of which the person acted, executed the instrument.
NOTARY PUBLIC
QLADYS MALDONADO
Nobry 14:Sub d Now Yak
No 01 APuh1074 QuN7n C$Ur
Term Exorss March 17
..0DMAVC )0CSAMFLD00A787 W
CONFESSION OF JUDGMENT EXPLANATION AND DISCLOSURE OF
RIGHTS/WAIVERS
Lender: FINOVA Capital Corporation
Borrowers: IF Services Ltd.
Guarantor/
Surety: Shirley R. Bloom
1. Lender has agreed to make certain loans and advances in the principal amount of Six
Hundred Thousand Dollars ($600,000) (the "Loan") to Borrower pursuant to that certain Loan and
Security Agreement dated as of September 11, 1998 by and between Lender and Borrower and the
Secured Promissory Note dated as of September 11, 1998 executed by Borrower and delivered to
Lender (collectively, the "Security Agreement"). To induce Lender to make such Loan, undersigned
("Obligor") has agreed to become a guarantor and surety who will be primarily liable for the
payment and performance of the Loan as if Obligor was the Borrower. In connection therewith,
Obligor is executing and delivering to Lender that certain Secured Continuing Guaranty (the
"Instruments") which contain (or have attached thereto) warrants of attorney to confess judgment
(the "Warrants") against Obligor.
2. Obligor clearly and specifically acknowledges, understands and agrees that:
(A) THE WARRANTS CONTAINED IN (OR ATTACHED TO) THE INSTRUMENTS
ARE PROVISIONS PURSUANT TO WHICH LENDER MAY ENTER JUDGMENT BY
CONFESSION AGAINST OBLIGOR.
(B) THE INSTRUMENTS AND/OR WARRANTS ALSO CONTAIN PROVISIONS
UNDER WHICH LENDER MAY, AFTER ENTRY OF JUDGMENT AND WITHOUT EITHER
NOTICE OR A HEARING, FORECLOSURE UPON, ATTACH, LEVY OR TAKE POSSESSION
OF OR OTHERWISE SEIZE PROPERTY OF OBLIGOR, IN FULL OR PARTIAL PAYMENT
OF THE JUDGMENT.
(C) BY SIGNING THE INSTRUMENTS AND/OR WARRANTS CONTAINING THE
CONFESSION OF JUDGMENT CLAUSES, OBLIGOR WILL AUTHORIZE LENDER TO
ENTER A JUDGMENT AGAINST OBLIGOR AND IN LENDER'S FAVOR WHICH WILL GIVE
LENDER A LIEN UPON ANY REAL ESTATE OBLIGOR MAY OWN, INCLUDING (IF
OBLIGOR IS AN INDIVIDUAL) OBLIGOR'S HOME.
(D) BY SIGNING THE INSTRUMENTS AND/OR WARRANTS CONTAINING THE
CONFESSION OF JUDGMENT CLAUSES, OBLIGOR WILL GIVE UP THE RIGHT TO ANY
NOTICE OR OPPORTUNITY TO BE HEARD PRIOR TO THE ENTRY OF THIS JUDGMENT
ON THE RECORDS OF THE COURT.
(E) BY SIGNING THE INSTRUMENTS AND/OR WARRANTS CONTAINING THE
CONFESSION OF JUDGMENT CLAUSES, OBLIGOR WILL AGREE THAT LENDER CAN
ENTER THIS JUDGMENT PRIOR TO PROOF OF NON-PAYMENT OR OTHER DEFAULT ON
OBLIGOR'S PART.
(F) BY SIGNING THE INSTRUMENTS AND/OR WARRANTS CONTAINING THE
CONFESSION OF JUDGMENT CLAUSES, OBLIGOR WILL SUBJECT ALL OF OBLIGOR'S
PROPERTY, BOTH REAL AND PERSONAL, TO EXECUTION (AND SHERIFF'S SALE),
PURSUANT TO THIS JUDGMENT, PRIOR TO PROOF OF NON-PAYMENT OR OTHER
DEFAULT ON THE PART OF OBLIGOR OR ANY OTHER PARTY.
(G) BY SIGNING THE INSTRUMENTS AND/OR WARRANTS CONTAINING THE
CONFESSION OF JUDGMENT CLAUSES, OBLIGOR WILL BE UNABLE TO CHALLENGE
THIS JUDGMENT, SHOULD LENDER ENTER IT, EXCEPT BY PROCEEDING TO OPEN OR
STRIKE THE JUDGMENT, AND SUCH A PROCEEDING WILL RESULT IN ATTORNEY'S
FEES AND COSTS WHICH OBLIGOR WILL HAVE TO PAY.
3. Obligor acknowledges, (mows and understands that it is the confession of judgment clause(s)
in the Instruments and/or Warrants which give(s) Lender the rights enumerated in subparagraphs A
through G of Paragraph 2 above. IF OBLIGOR DOES NOT SIGN THE INSTRUh EMS AND/OR
WARRANTS WMCH CONTAIN CONFESSION OF JUDGMENT CLAUSES(S). OBLIGOR
?. ni?n
INDERSTANDS THAT OBLIGOR WOULD HAVE THE FOLLOWING:
(A) THE RIGHT TO HAVE NOTICE AND AN OPPORTUNITY TO BE HEARD
PRIOR TO ENTRY OF JUDGMENT.
(B) THE RIGHT TO HAVE THE BURDEN OF PROVING DEFAULT REST UPON
LENDER BEFORE OBLIGOR'S PROPERTY COULD BE EXPOSED TO EXECUTION ON THE
JUDGMENT.
(C) THE RIGHT TO AVOID THE ADDITIONAL EXPENSE OF ATTORNEYS FEES
AND COSTS INCIDENT TO THE OPENING OR STRMI NG OFF OF A CONFESSED
JUDGMENT.
4. With full and complete understanding of these rights which Obligor has prior to signing the
Instruments and/or Warrants and being clearly aware that these rights will be given up, waived,
relinquished, and abandoned if Obligor signs the Instruments and/or Warrants, OBLIGOR
??}AND??V}.[O]LIINTARIL]-?Y?
N EVER rLESS FREELt KNOWINGLY, INTELLIGENTLY
CHOOSES SIGN TBE I NSTR* MMS AND/OR WARRANT. WITH OBLIGORS
INTENTION BEING TO GIVE UP WAM RELINQUISH AND ABANDQh QBL1Q=
KNOWN RIGHTS (AS DESCRIBED IN PARAGRAPH 3 ABOVE) AND TO SUBJECT
_ _ __ __ ..» ..............e..... vnae nt:0f'Br0FT% FM PAR Ar.R APH 7 ABOVE.
5. Obligor acknowledges, represents and warrants to Lender that:
(A) Obligor's annual income exceeds $10,000,
(B) Obligor has received a copy of this disclosure document at or before the time of
signing the Instruments and/or Warrants; and
(C) The Loan has been advanced for business purposes.
IN WITNESS WHEREOF, Obligor intending to be legally bound, has executed this disclosure
dated as of the l Ith day of September, 1998.
We have read this entire form and we fully understand its contents.
WITNESS:
WITNESS:
IF SERVICE LTD.
By:
Leo Bloom, President and Chief Executive Officer
Shirleylk. , Guarantor
STATE OF NEW YORK )
) ss.:
COUNTY OF NEW YORK )
On this 11th day of September, in the year 1998, before me, the undersigned, a Notary Public
in and for said state, personally appeared Leo Bloom, personally known to me or proved to me on
the basis of satisfactory evidence to be the person whose name is subscribed to the within instrument
and acknowledged to me that he executed the same in his capacity and that by his signature on the
instrument, the person or the entity upon behalf of which the person acted, executed the instrument.
NOTARY UBLI
GLADYS MALDONADO
Notary Public. Sutra of New York
No, O1MA5074495 Queens County
Term E*m Much 1719 R 99
STATE OF NEW YORK )
) ss...
COUNTY OF NEW YORK )
On this 11th day of September, in the year 1998, before me, the undersigned, a Notary Public
in and for said state, personally appeared Shirley R. Bloom, personally known to me or proved to
me on the basis of satisfactory evidence to be the person whose name is subscribed to the within
instrument and acknowledged to me that she executed the same in her capacity and that by her
signature on the instrument, the person or the entity upon behalf of which the person acted, executed
the instrument.
OTARY P IC
GLADYS MALDONADO
ryopry Pubtto. stets of Now York
??msMarch 1719? ?
.ADMAWDOCUMFF.D0C1411M
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FEB-18 99 OV:57 FROM:
70:12124030459 PAGE:10e11
Run Dab: Wednesday. September 30. 1990 FINOVA C6pltal Corporation (NoveW(26) (INTSTMTI) Page: 1
Rut Time: 16:02:13 Ino"st Stournent
IF Bervkm LTD We R*nm Custwmr W. 35412 FINOVA Capital C nwatbn (NoveLAXZS)
1302 Stab HA Road 6 3 Contract It 1
Schedule S: 1
Camp H61 PA 17011 Collateral Type: AR DE
Data Raw Advance Adjusenent Cash Loan Balance Care. Bal. Inures,
Curtent Month BaginnkV Baler": 000
911N6 12.6000% 0.00 0.00 0.00 0.00 0.00 0.00
92196 12.5000% 0.00 0.00 0.00 0.00 0100 0.00
913196 12,6000% 0.00 0.00 0.00 0.00 0.00 0.00
9/41911 12.5000% 0.00 0.00 0.00 0.00 0.00 0.00
915199• 12.5000% 0.00 0.00 0.00 0.00 0.00 0.00
916196- 12.5000% 0.00 0.00 0.00 0.00 0.00 0.00
917196• 12.5000% 0.00 0.00 0.00 0.00 0.00 0.00
9111199 12.0000% 0.00 0.00 0100 0.00 0.00 0.00
9NNB 12,6000% 0,00 0.00 0.00 0.00 0.00 0.00
9110N6 12.5000% 0.00 0.00 000 0.00 0.00 0.00
WI IM 12.6000% 0.00 0.00 0.00 0.00 0.00 0.00
9112196• 12.6000% coo 0.00 0.00 0.00 0.00 0.00
91.3196' 12.6000% 0.00 0.00 0.00 0.00 0.00 0.00
9/14M 12,5000% 0.00 0.00 0.00 0.00 0.00 0.00
9116196 12.5000% 0.00 0.00 0.00 0.00 0.00 0.00
9116N6 12.6000% 0.00 6.000.00 0.00 6.000.00 0.000.00 2.06
e/17N6 12.5000% 317,766.00 -291,000.00 0.00 32,755.00 32.765.00 11.37
9110196 12.6000% 61,372.00 0.00 0.00 64,127.00 64,127.00 29.21
M19N6• 12.6000% 0.00 0.00 0.00 64,127.00 64.127.00 29.21
9120196• 12.5000% 0.00 0.00 0.00 64,127.00 94.127.00 2921
921/96 12.5000% 4,265.61 0.00 5,765.40 62.647.41 94,176.21 32.70
•22/911 12.5000% 20,000.00 0.00 0.00 102,647.41 102,647.41 35.64
983106 12.5000% 42,641.45 0.00 OAO 145.196.66 145.iaw 60.41
684M 12.5000% 0.00 0.00 12,247.60 132,941.30 161.931.38 63.17
g/2SN9 12.6000% 0.00 0.00 0.00 132,041.36 132,941.36 45.16
9126199• 12.5000% 0.00 0.00 0.00 132.041.36 132,941.36 46.16
927N6• 12.5000% 0100 0.00 0.00 132,941.36 132,041.36 46.16
986199 12.5000% 7,957.36 0.00 21,050.00 110,940.71 161.946.71 66.23
989N6 12.6000% 0.00 0.00 0.00 119,646.71 119,646.71 41.61
W30199 12.6000% 0.00 0.00 5,464.60 114,363.91 125.313.61 43.51
TOTAL: 443,911.111 •285,000.00 44.527.70 1,607.400.45 1,621,016.66 $62.63
Use Busktas Days Yes Average Loan Balance 100,497.76 Cu"m Month Inwmt 523.40
Fiat with Pdme Yes (Ckbank • Daily) / CumM Month Float 30.43
Calculation Days 360 Collateral Monkoring Fee 1.000.00 Last Month InL A Fleet Adj. 0.00
Clearance Days 2.00' Wkerae 190.00 Total Face 1.160.80
Loan Raw 4.0000% -'
Total Due 1,742.63
(6#Al) ?t/
i
r+
FES-18 99 09:57 FROM: TO:12124030459 PHGE:11,11
Run Date: Wedrwdey, September 30. 1995 FINOVA Capital Corporation (NaisLAX26) (INT6TMT1) Page, 2
Run TIma:18:02:22 Interest Sutenuint
IF Smvkas LTD We RoMaa Customer W. 3S412 FINOVA C&OW Cor mom (NovstA1t25)
1302 Slap His Road 0 7 Contracts: I
Camp Hid PA 17011 Schedule 9: 3
Coaatoml Type: TE OE
Date Rata Advance Adjuetmenl Cash Loan Salutes Calm Sal. Interest
Current MaNI Goghmtrlg 6alrru: 0.00
WIN 12.50001A 0.00 0.00 0.00 0.00 0
00 0
00
wzm 12.5000% 0.00 0.00 0.00 0.00 .
0.00 .
0
00
97395
914M 12.fiOW%
12
6000% 0.00
0
00 0.00
0
00 0.00 0.00 0.00 .
0.00
WGW .
12.5000% .
0.00 .
0.00 0.00
0.00 0.00
0.00 0.00
0.00 0.00
0
00
9AWW 12.6000% 0.00 0.00 0.00 0.00 0.00 .
0
00
9779, 1XS000% 0.00 0.00 0.00 0.00 0
00 .
0
00
wm 12.6000% 0.00 0.00 0.00 0.00 .
0.00 .
0
00
99195 1X0000% 0.00 0.00 000 0.00 0.00 1
0
00
silo/" 1X5000% 0.00 0.00 0100 0.00 0
00 .
0
00
911195 12.5000% 0.00 0.00 0.00 0.00 .
0.00 .
0
00
9n2mS• 115000% 0.00 0.00 0.00 0.00 0.00 .
0
00
9113Nr 12.6000% 0.00 0.00 0.00 0.00 0.00 .
0
00
911011 12.5000% 0.00 0.00 0.00 0.00 0.00 .
0
00
W1S95 12.6000% 0.00 0.00 0.00 0.00 0.00 .
0
00
WSW 1X6000% 0.00 0.00 0.00 0.00 0.00 .
0.00
W17M 12.6000% 0.00 291.000.00 0.00 291.000.00 251.000.00 101.04
911S9S 12.5000% 0.00 0.00 0.00 291.000.00 291.000.00 101.04
IW 99r 12.6000% 0.00 0.00 0.00 291.000.00 291.000.00 101.04
OnWr 12.5000% 0.00 0.00 000 291.000.00 291.000.00 101.04
9121M 1X6000% 0.00 0.00 0.00 291.000.00 291.000.00 101.04
W22M 12.6000% 0.00 0.00 0.00 291.000.00 291.000.00 101.04
972395 12.6000% 0.00 0.00 0.00 291.000.00 291.000.00 101.04
9124M 1X5000% 0.00 0.00 0.00 291.000.00 291.000.00 101.04
9/26% 12.6000% 0.00 0.00 0.00 291,000.00 291.000.00 101.04
9/2519, 12.5000% 0.00 0.00 0.00 291.00000 291.000o0 101.04
9/279, 12.5000% 0.00 0.00 0.00 291,00000 291.000oo 101.04
92696 12.5000% 0.00 0.00 0.00 291,000.00 291.000.00 101.04
0/29195 12.6000% OAo 0.00 0.00 291,000.00 291.000.00 101.04
W30% 12.5000% 0.00 0.00 0.00 291.000.00 291.00000 101.04
TOTAL: 0.00 291.00000 0.00 4,074,000AO 4,074.000.00 1,414.65
Use Suss Days Yes Low Salome
Ave" 271,600.00 Currant Month traersst 1,414.38
I" With P Yes
(Ckbmk- Why)
CumeM Month Flog
0.00
Calculation Days 360 Lest Month !rat t Float Adj. 0,00
C"W" Days 0.00 Total Fees 0.00
Loan Rate 4.0000% .-
TaW Due 1,414.65
Customer Roep - IF Ser*" LTD dWs Rotaera (35412)
Curanl Month Interest 1,977.39
Previous Mahn Int Adj. 0.00
Total Interest 1,977.39
Total Fees 1,150.00
Total Due 3,157.39
FEB-18 99 09:56 FROM:
70:12124030459 PAGE:08,11
610^,9& I -
(NOvaLAX25)
corporation
8 PINOVACapital
(ROHR INTbTMTt)Page:7
Run Date: Friday. October 30. 1 99 ?
ro nt
Run Tkns:14,68.08
FINOVA Capeal CMwatlen (NovaLAX25)
Cuswmr t: 3 5412
IF SsrAoaa LTD drbls Rohrare Contract a: 1
1302 Slate Hill Road 0 3 Schedule 0 : 1
Collateral Type: AR DE
Camp Nib PA 17017 ?
Cash Loan Balance Gate. Bel. Intermit
Rote
Dew Advance Adjustment
- "-
114,38].91
Current Month 6"Inntrq balance:
Willis 122500%
14,649.01
3.167.39
0.00
0
00
132,390.31
132,390.31
1]2,390.31
132,300.31 45.05
4505
00%
107/98 12.2 0.00 0.00
00
0 ,
0.00 132,390.31 132.390.31 45.05
05
45
5
10I1A8• 12.2500%
1a4Ae• 12.2500% 0.00
0.00 .
0.00 0.00
00
0 132.390.31
132,390.31 132.390 31
132,390.37 ,
46.06
io15190 12.2500% 0.00 0.00
00
0 .
287.39
5 134,734.09 gS.306.e7 •9.46
1010,96 12.2500% 7.0.11.17
13
785 .
0.00 ,
32.3111140 137.199.68 201,536,48 68.60
48
02
10/7,98 12.2500%
2600%
12 .
.65
11,705.05 0.00 23.350.00 125.635.53
76
143
910 242.385.63
910.76
143 .
48.97
.
low"
11119,98 122600% 18,275.23
7 0.00
000 0,00
0,00 ,
.
143,910.76 ,
143,910.71 48.97
1011090' 12.2500% 0.00
00
0 000 143.910.76 143,910,78 45.97
ta11A1• 12.2500% 0.00 .
000 0.00 143,910.76 143,910.76 4697
10112N0• 13.2500%
% 0.00
02'
6
613 0.00 2.464.00 110,040.56 163.004.68 52.07
21
59
1011341 12.2600 ,
.
973
10
23 0.00 1.980.00 170.033.68 173,993.68 .
lot" 12.2500% .
. 00
0 0.00 770.033.68 170,033.48 57.58
10116011 12.260044, 0.00
0
00 .
00
0 3.420.00 150.413.68 160293.66 51.35
ton"a 12.2500%
• .
00
0 .
0
00 0.00 166.813.66 165.613.05 55.69
12.2500%
1.37741 .
00
0 .
0.00 0.00 166,613.6E 166,613.68 5569
101164th 12.2500%
10119196 12.0000% .
24,680.93, 0.00 1,550.00 1119,762.61 192,852.41
61
762
189 6428
63
25
11170,98 12.0000% 0.00 0.00
0
00 0.00
0
00 169,762.61
109.752.61 .
.
169.76161 .
6326
10121196 12.0000%
0000%
lormll 12 0.00
30,904,97 .
0.00 .
0.00 220,656.68 220,655.68 73 55
73
65
.
1073,90 12.0000% 0.00 0.00 0.00
00
0 220,656.65
220
456
16 220.664.68
656.68
220 .
73.55
10124489 12.0000%
1075198• 12.0000% 0.00
0.00 0.00
0.00 .
0.00 ,
.
220,656.58 ,
220.656.68 73.65
73
50
1012610 12.0000% 0.00 69.75 0,00
00
0 220,746.43
43
744
220 220,746.43
746.43
220 .
7358
107716 12.0000%
0000%
10128M 12 0.00
18,199.51 0.00
0.00 .
14,091.89 .
.
272.654.05 .
251,037.93 8365
.
0000%
107940 12 0.00 0.00 0.00 22204.05 222,664.05 7426
.
10/30196 12.0000% 0.00 0.00 9,000.35 212,973.70 252,495.10 84.11
10/31190• 12.00D0% 0.00 0.00 0.00 212,973.70 212,973.70 70.99
TOTAL. 189,704.68 3.247.14 94,30203 5.310,145,711 5,673.020.64 1,910.57
Use Busirrss Days Yes Average Loan Galante 173,811.75 Current Month Interest 1,014.26
Float w h Pmm Yes (ChAsnk • Doty) Current Month Float 96.61
Calculation Days 360 ' Collateral Mon" Fee 1,000.00 0, Last Month
i IM 6 Float Adj. -0.87
Clearance Days 2.00. "raw Total Fes
300.00 1.300.00
Lon Raw 4.0000%
Total Due
3.210.00
P
i
i
i?
j
FEB-18 99 09:56 FROM: TD:12124030459 PRGE:09?11
Run Oete: Friday, October 30, 1998 FINOVA Capital Corpontlon (NovaLAX26) (EOMR_INTSTMTi) Pogo: 2
Run Tine: 1666:09 Interest Statement
IF Services LTD We Rohrer% Customer a: 75412 FINOVA Capital Corporation (NovaLAX26)
1002 Slate NIII Road 0 0 Contract is 1
Camp Hill PA 17011 Schedule r: 7
Collateral Type: TE OE
Date Rate Advance Adjustment Cash Loan Balance Ca1c. Bat Interest
Curtenl Month BWn" Balance: 201,000.00
101196 12.2500% 0.00 000 0.00 291,000.00 201
000.00 99
02
tol?18 12.2500% 0.00 0.00 0.00 291,000.00 ,
201
000
00 .
90
02
101798' 12.2500% 0.00 000 0.00 291,000.00 ,
.
201
000
00 .
90
02
10/4198• 12.2500% 0.00 000 0.00 291.000.00 .
.
291
000.00 .
99
02
10/5198 12.2500% 0.00 0.00 0.00 291,000.00 .
201
000.00 .
99
02
10Nl198 12.2500% 0.00 0.00 0.00 201.000.00 .
201.000.00 .
00
02
10/7198 12.2500% 0.00 0.00 0.00 291.000.00 291.000.00 .
09
02
10996 12.2500% 0.00 000 0.00 291.000.00 291
000.00 .
99
02
109198 12.2500% 0,00 0.00 0.00 201,000.00 .
291
000.00 .
99
02
10110198'
' 12.2500% 0.00 0.00 0.00 201.000.00 ,
291,000.00 .
99
02
1011198 12.2500% 000 0.00 0.00 201.000.00 201.000.00 .
90
02
1011218• 12.2500% 0.00 0.00 0.00 291.000.00 291,000.00 .
99
02
10/13108 12.2500% 0.00 0.00 0.00 291,000.00 291
000.00 .
99
02
101141011 12.2500% 0.00 0.00 0.00 201,000.00 ,
201.000.00 .
99
02
1011898 12.2500% 0.00 0.00 0.00 201.000.00 201.000.00 .
09.02
1x16198 12.2500% 0.00 0.00 0.00 291.000.00 291.000.00 99
02
10117100 12.2500% 0.00 0.00 0.00 291.000.00 291,000.00 .
02
00
10118198' 12.2500% 000 0.00 0.00 201,000.00 201,000.00 .
99.02
10/19198 12.0000% 0.00 0.00 0.00 291,000.00 291,000.00 97.00
101209! 12.0000% 0.00 0.00 0.00 201,000.00 201.000.00 97.00
IOr21M 12.0000% 000 0.00 0.00 201,000.00 201,000.00 97.00
111/22/96 12.0000% 0.00 0.00 0.00 291.000.00 201.000.00 97
00
10120198 110000% 0.00 0.00 0.00 291.000.00 291.000.00 .
97.00
1=4198• 12.0000% 0.00 0.00 0.00 201,000.00 291,000,00 97
00
1=8108' 12.0000% 0.00 0.00 0.00 201.000.00 291,000.00 .
97.00
10 MI 12.0000% 0.00 0.00 0.00 291,000.00 201,000.00 97.00
10127198 12.0000% 0.00 0.00 0.00 291.000.00 291,000.00 67.00
10128398 12.0000% 0.00 0.00 0.00 291,000.00 291,000.00 97.00
10129198 110000% 0.00 0.00 0.00 291,000.00 201.000.00 97.00
10170198 12.0000% 0.00 0.00 0.00 291,000.00 291,000.00 97.00
100198• 12,0000% 0.00 0.00 0.00 291.000.00 291,000.00 97.00
TOTAL 000 0.00 0.00 9,021,000.00 9,021,000.00 7,043.76
Usa,
Days
om
Yes
Avenge Lan Balance
291,000.00 Current Month interest
7,017,76
Ftealvv4h
Prime Y
es (Cldhank - Daly) Current Month Float 0.00
Calculation o as 360 Last Month Int. 6 FlatAdl. 4.02
60 Total Feu 0.00
Lan Rate 4.0000%
Total Due 7,041.74
Customer Reap • IF Semas LTD We Rohrers (75412)
Current Month Interest 4,954,27
Previous Month Int. Adj. •2.89
Total Interest 4,051.74
Total Fee 1.700.00
r
i
Total Due 8,251.74
FEB-18 99 09155 FROM.
TO:12124030459 PRGE:06,11
Run Date: Monday, November 30. 1996 FINOVA Capital CoMamilon (NoVst-AX26) (EOMR INTSTMTI) Palle: 1
Run Tian: 16.24:21 Inveroat Statement
IF Services LTD dMe Rohrere Customer W. 35412 FINOVA Capital Corporation (NovaW(25)
1302 Slata HO Road 8 3 Conned 4: 1
Sdwdulo a. 1
Camp Hill PA 17011 Collateral Typo: AR DE
Date Reis Advance Adtustrrtent Cash Loan ealance CO-- Bal. Interest
Current Month Beginning BaW=: 212,973.70
1111190' 12.00001E 0.00 11,101.34 0.00 224,075.04 224,075.04 74.69
m2M 12.0000% 24,621.00 0,00 0.00 248,696.04 240,090.04 $2.90
1M M 12.0000% 0.00 0.00 0.00 246,690.04 241,696.04 02.90
IWAIS 12
0000% 0.00 0.00 0.00 249,695.04 244,696.04 02.90
1116190 .
0000%
12 32.999.00 0.00 0,46600 275,230.04 30I.M.04 10o.36
111190 .
12.0000% 0.00 O.W 0.00 276.230.04 275,230.04 904
1tfrtW 12.9000% 0.00 0.00 0.00 275,230.04 276,230.04 01.74
1110190• 12.0000% 0.00 0.00 0.00 276,230.04 276,230.04 91.74
11100 12.0000% 0.00 0.00 0.00 275,230.04 275,230.04 91,74
1111011/ 110000% 0.00 0.00 0.00 276.230.04 275230.04 91.74
1111110• 12
0000% 0,00 0.00 0.00 276,230.04 276,230.04 91.74
11112199 .
12.0000% 23,312.47 0.00 0.00 298,642.61 206.64151 99.51
111131$ 12.0000% 6,306.20 0.00 0.00 303,849.71 303,610.71 101.26
11n416a 12.0000% 0.00 0.00 0.00 303.646.71 303,648.71 101.26
1111SM' 12.0000% 0,00 0.00 0.00 3M.648.71 303.640.71 101.20
1111016 0000%
12 0.00 0.00 0.00 303.546.71 303,640.71 101.20
1111718 .
MO W% 0.00 0.00 3.640.49 300209.23 307,499.19 10160
1111610 11.7600% 14,428.00 0.00 5,637.50 30$.996.73 320.273.73 104.63
11n419e 11.760% 20,000.00 0.00 0.64 320,990.73 320,996.73 107.35
t120/9e 11.7500% 0.00 e,6411.75 420.00 337,227.40 336,907.48 110.62
11!21190• 11.7600% 0.64 0.00 0.64 337,227.40 337,227.46 110.07
1102W 11.7600% 0.64 0.64 0.00 337,227.48 337,227.48 110.07
11123198 11
7600% 20,000.00, 0.00 0.00 357227.48 357,227.46 116.50
1112400 ,
11.7500% 0.00 0.00 1,306.86 356,920.82 359.54120 117.45
118610 11.7600% 0.64 0.64 6,282.00 350.650.62 370,960.62 123.04
1112016• 11.7600% 0.64 0.00 O,W 350.654.62 350,66882 114.45
7187/94 11.7500% 0.00 0.00 0.00 350.658.62 350,060.62 114.46
1NM06• 11.7600% 0.00 0.00 0.00 350.6511.62 360.666.62 114.46
11/8416' 11.7600% 0.00 0.00 0.00 350,630.62 350,650.92 114.45
114010 11.7500% 36,000.00 1,701.78 30,000.00 337,360.40 437,360.40 142.76
TOTAL: 175,666.67 21,461.87 72.731.84 9,164,400.62 9.340,727 .05 3.061.53
Use Business Days Yea Average Loan eeisnce 306.480.02 Conant Month Interact 3.023.94
Fisatwith Prbm Yea (C6DWt-Daily) Current Month Flows
' 57.79
Caicuww as" 360 Collateral Monilorl" Foo Lest Montle Int. 6 Flost Adi
1.000,00 " 0.00
Ckaanoe Dsys 2.00, Wre Ise 240.00 Taal Fen 1.240.00
LOW Rate 4.0000%
Total Due
4,321.63
&-1?7
FEB-18 99 09:56 FROM: TOt12124030459 PAGE:07,11
Run Don: Monday, November 30, I9o6 FINOVA Capital Corporation (NOraLA)l26) (EDMRINTSTMTI) Pole. 2
Run Time: 16.24,21 Inleresl6taMmant
IFSeMoeoLTDdW&Rohrors Customers.]5412 FINOVACapital Corporation )NovalAA2S)
1302 Saste NO Road a 3 Contract rt 1
Schedule 6: 3
Camp Mill PA 17011 Collateral Type: TE DE
Dote Rate Advance Adjustment Cash Loan Balance Cale. oil. Interest
CurtentMonth BoWi g Balance; 291.000.00
111171a• 12.0000% 0.00 r4,S50.00 000 266,160.00 218,160.00 95.34
11r295 12.0000% 0.00 0.00 0.00 266.150.00 285.150.00 95.71
1144 12.0000% 0.00 0.00 0.00 266.160.00 206.160.00 95.78
11198 12.00110% 0.00 0.00 0.00 215.160.00 266.150.00 95.76
111698 12.0000% 0.00 0.00 0.00 215.160.90 265.160.00 95.38
11r" 12.0000% 0.00 0.00 0.00 265.160.00 215.160.90 95.76
111101• 12.0000% 0.00 0.00 0.00 266,150.00 280,150.00 95.38
111191• 12,0000% 0,00 0.00 0.00 266.160.00 215.160.00 96.36
1119911 13.0000% 0.00 0.00 0.00 266.15000 21t1.16o.w 95.38
1111091 12.0000% 0.00 0.00 0.00 205.160.00 206.150.00 95.76
11111/16• 12.0000% 0.00 O.DO 0.00 265,100.00 265.150.90 9576
11112198 12.0000% 0.00 0.00 0.00 206,160.00 210.160.00 9576
1111795 12.0000% 0.00 0.00 0.00 256,160.00 206.160.00 9538
1111491• 12.0000% 0.00 0.00 0.00 200,150.00 288.160.00 05.38
1111696• 12.0000% 0.00 0,00 0.00 266,150.00 2811,160.00 95.76
11116190 12.0000% 0.00 0.00 0.00 266.160.00 2110.160.10 95.71
11117106 12.0000% 0.00 0.00 0.00 266,160.00 260.160.00 95.75
11111795 11.7500% 0.00 0.00 0.00 255.160.00 206.150.00 93.40
1111991 11.76600% 0.00 0.00 0.00 286.150.00 206,160.00 97.40
118096 11.7600% 0.00 0.00 0.00 256.160.00 206.150.00 07.40
111211W 11.761% 0.00 0.00 0.00 288.160.10 266,160.00 97.40
1112295• 11.7600% 0.00 0.00 0.00 256,150.00 2111,160.00 97.40
11627706 11.7600% 0.00 0.00 0.00 255.150.00 265,160.110 97.40
11124191 11.7500% 0.00 0.00 0.00 256.150.00 206,160.00 93.40
11125706 11.7600% 0.00 0.00 0.00 215,150.00 216.160.00 97.40
1112695• 11.76110% 0.00 0.00 0.00 206,150.00 2161160.00 97.40
11mNS 11.7500% 0.00 0.00 0.00 261.160.00 286,160.00 97.40
111261116• 11.1500% 0.00 0.00 0.00 216,160.00 206,150.00 97.40
111291950 11.7500% 0.00 0.00 0.00 206,160.00 210.150.00 9740
1167091 11.7600% 0.00 0.00 0.00 256,150.00 206,160.00 9740
TOTAL 0.00 4,650.00 0.00 5,094.500.00 5,554,500.00 2,875.06
U" Business
Days yes Averspa Low Balance 266,15000 Cw" Month Interest 2,875.66
Float with PMW Y
es (Cab.na • Dsey) CANf" Month Float 0.00
C," Won Days 760 Lest More Int. A FWM A4 0.00
Clearance Drys 0.00 Total Foss 0.00
Loan Rote 4.0000%
Total Ow 2.875 68
Cusaomm Ramp • IF Services, LTD We Rohrom (75412)
Current Month Interest 5,917,29
Previous Mach Inl Adj. Moo
Total Interest 5,917.29
Total Fees 1,24000
Total Due 7,157.29
FEB-18 99 09:55 FROM: 70:12124830459 PAGE:04,11
Run Date: Thursday, Dvosm"t 31, 1999
Run Tine: 12:19.61
IF Svrvkes LTD NWa Rohrem
1702 Slate Mill Road a 3
Camp Hill PA 17011
FINOVA CaPltal CorPontlon (NovaW(26)
Interest Statement (EO4R_INTSTMT7) Pape: 1
Customer a: 35412 FINOVA Capital Corporation
Contrad 6; 1 (NOYaIA%26)
Schedule a: 1
C0931er3l Type. AR DE
Data Rata Advance Adlustrnant Cash -"' ?---
-- Loan Balance
`
?~
Csk.BaL
Interest
Current Monty
Bapin N Balance: -`? -^'--^-
337,360.40
1211/98 11.7500% 10.000.00 12
007
29
1212198
12/396 11.7500%
11,7500% 000
0
00 .
.
0.00 1.125.00
0.00 366242,69
356
242
69 360,492.69 117.66
12/196 11.7600% .
16.000.00 0,00
0
00 0.00 .
.
358,242.69 356,242.69
330212
69 116.93
121698
1216698' 11.7600%
1
0.00 .
0,00 0.00
0
00 373,242.69 .
373,242.09 116.93
121
82
121798 1.7600%
11.7500% 0.00
0
00 0.00 .
0.00 373.242,49
373
242
69 373.242.69 .
121.82
121690
11,7600% .
0.00 0.00
0
00
0.00 ,
.
373.242.09 373.242.69
373242
69 121.82
12990
12MOM 11.7600%
11
7500%
0.00 .
0.00 0.00
5.307
50 373,242-09
367 .
373212.69 121.82
121.82
1L1196 .
11.7500% 0.00
0
00 Mao .
0.00 ,935.19
367
935
19 378,660.19 123.65
12J129a'
11.7600% ,
0.00 0.00
0
00
000 .
.
367,933.19 387,935.19
367
935
19 120.09
12/131960 11.7300%
0.00 .
0
00 0.00 367,935.19 .
.
367.836.19 120.09
120
09
1211496 11.7600% 0.00 ,
0
00 0.00
1 367,935.19
367.935.19 .
/20
00
1212596
1211698 11.7500%
11
7600% 0,00 .
0.00 3.51200
9.239.17 354A23.10
346
164
02
361,447.19 ,
124.60
12n79e .
11,7• % 0.00
0.00
000
0
0
O.oo .
.
x3,164.02 363,602.36
x5
104
02
118.70
1211696 11,7500% 0 .0
0
00 0.00 x3,/94,02 ,
.
x5,194,02 113.00
112
66
12119198'
1
• 11.7500%
0.00 '
0.00 0.00
0
00 x6,161.02
x3.164.02 .
112.66
28096
12121190 11.7600%
11
7600% 0.00 0,00 .
0.00 x6,164.02
x5
194
02 x5,194.02 112.65
128296
4M .
11.7500% 0.00
0.00
0.00
0
00
0.00 ,
.
x5,164.02 x5.194.02
x5,184.02 112.66
112
66
12r 11.7500%
0.00 .
0
00 9.160.00 338.004.02
364.364.02 .
116
68
128496 11.7500% 0.90 .
000 0.00 330,004.02 330.004.02 .
109
67
1212698• 11,7500% 0.00 0
00 0.00 ]30,004.02 336,004.02 .
100
07
1286196• 117600% 0.00 .
0
00 0,00 336,004.02 336.004.02 .
109
87
1211798' 11,7600% 0.00 .
0.00 0.oo
0
00 336,004.02 336.004.02 .
109.67
12126198 11.7500%
1
17247.29 .
0
00 336,004.02 330.004.02 109.07
1212896 11.
500% 0.00
0
00 . 353,231.31 353251.31 116
30
1213096 11.7$00%
0.00 .
0
00 0.00 353,251.31 353.251.31 .
115
30
1213198
113600%
0.00 .
0
00 0.00 333.251.31 333.251.31 .
11510
. 0.00 353,231.31 353261.31 115.30
TOTAL: 25.000.00 29,254.56 38,363.67 10.98036016 11,057,093.60 3,606.90
Use Business Days
Fbel w1h Prime Yee
Y Ave" Loan Bayne 354,205.10 Cunnt Month Interval 3
683
87
Calculation Cleeraince Da
s ee
/
i
6 (CSi wA • D
Co ? Mongorvp Foe
1,000.00 ? Lust Moo nIrnL & Heart Adj ,
.
2000
y
Loan Rats 0
0
4.0000% ' 60-00- Tout Pees . 1.060.00
Total Ous 4,668.90
'N
.7,P
FEB-1B 99 09:55 FROMI
70:12124038459 PRGE105,11
Run Date: Thursday, December 31. FINOVA Capital Corporation (NoveLAX25) (EOMR iNTSTMTt) Page: 2
Run Time: 12:19:53 Interest Statement
IF Services LTD We Rohrers Customer 0: 35412 FINOVA CepiW Corporation (NmLAx25)
1302 Slats Hill Road 0 3 ContractM. 1
schedule 0:3
Camp Hill PA 17011 Collateral Typo: TIE DE
Data Rate Advance Adjustment Cash Loan Balance Cale. Bel. Interest
Curtenl Month Beginning Balance: 266,150.00
1211196 11.7500% 000 -4.650.00 0.00 291,300.00 261.300.00 91.61
1212198 11.7500% 0,00 0.00 0.00 281,300.00 291,300.00 91.61
12/]l96 11.7600% 0.00 0.00 0.00 281,300.00 201.300.00 91.81
1214911 11.7500% 0.00 0.00 0.00 281.300.00 281.300.00 91.01
1215196• 11.7600% 000 0.00 0.00 281,300.00 281.300.00 911 at
/2/61984 11.7500% 0.00 0.00 0.00 281,300.00 281.300.00 9191
12170 111,7500% 0.00 0.00 0.00 261.300.00 2011300.00 91.01
12/61911 11.7500% 0.00 0.00 0.00 281,300.00 261,300.00 9181
12191/11 11.7600% 0.00 0.00 0.00 251,300.00 201.300.00 91.81
1211015 11.7600% 0.00 0.00 0.00 281,300.00 281,300.00 91.61
1211115 11.7900% 0.00 0.00 0.00 201,300.00 251,300.00 91181
12/12/911• 11,7500% 0.00 0.00 0.00 261,300.00 281,300.00 91.01
12/131980 11.7500% 0.00 0.00 0.00 251,300.00 281,300.00 91.81
12M4106 11.7500% 0.00 0.00 0.00 2111,300.00 281,300.00 91.81
12115199 11.7500% 0.00 0.00 0.00 281.300.00 281,300.00 91.61
12116196 11.7500% 0.00 0.00 0.00 281,300.00 291.300.00 91.61
12117M 11.7500% 0.00 0.00 0.00 281,300.00 251,30000 91.81
12ne/e 11.750D% 0.00 0.00 0.00 281.300.00 281.300.00 91.81
1211918• 11.7600% 0.00 0.00 000 261.300.00 261.300.00 91.811
12MOW 11.7600% 0.00 0.00 0.00 281.300.00 281.300.00 9161
1X21108 11.7600% 0.00 0.00 0.00 21111.300.00 261.300.00 91.81
1X2716 11.750D% 0.00 0.00 0,00 291,300.00 261,300.00 91.81
12/2318 11.750D% 0.00 0.00 0.00 281,300.00 201.30000 91.81
12/24198 11.7500% 0.00 0.00 0.00 281,300.00 281,300.00 9101
12125189- 11.7500% 0.00 0.00 0.00 241,300.00 281.300.00 91.51
1X29180- 11.7500% 0.00 0.00 0.00 251.300.00 261.30000 9111
12127100 11.7600% 0.00 0.00 0.00 261,300.00 281,300.00 91.51
1212111 11.750D% 0.00 0.00 0.00 281.300.00 291,300.00 91 at
u1291e 11.7500% 0.00 0.00 0.00 201,300.00 281,300.00 9181
12/30198 11.7600% 0.00 0.00 0.00 281,300.00 281.300.00 91.51
12/31111 11.7500% 0.00 0.00 0.00 281.300.00 281.300.00 91.81
TOTAL: 0.00 .4,6SOVO 0.00 8,720.300.00 0.720.300.00 2.846.11
Use Business Days Yee Average Loan Balance 201,300.00 Current Month interest 2.646.11
Fleet with Pr2 Yes (Cibbank • Daily) Cunenl Month Float 0.00
CakWBon Days 360 Lest Month Int. a Ftosl Adj. 0.00
Clearenoe Days 0.00 Total Fees 0.00
Loan Rate 4.0000%
Total Due 2.846.11
Cuslomor Recap • IF Services LT D dlbla R ohrors (35412)
Currant Month Interest 6.455.01
Previous Month Int. Adj. 0.00
Total Interest 6.455.01
Total Fees 1,060.00
Total Due 7,515.01
FEB-18 99 09:54 FROM: TO:12124030459 PAGE:02,11
1 Da- nw
Run Data: Friday, Jsiuary, 29, 1999 FINOVA Capital Corporation (NovaLAX26) (EOMR INTSTMTI) Page 1
Run Time. 14 35 59 Interest Statement
IF Services LTD dlbl Rohrers Customer 0: 35412 FINOVA Capital Corporation (NovatAlt25)
1302 Slate Hill Road! 3 Contract a 1
I ScheduleC 1
Camp Hill PA 17011 f ?QI?'S??I Tr?l D?
Date Rate Advanu Adjustment Cash Loan Balance CO- Bal. Interest
Current Month Beginning Balance! 353,251,31
1
111199• 1175"
0.00
12.365.01
000
365.616.32
355,616.32
119.33
12199' 11.7500 0.00 0.00 000 365.616.32 365,616.32 119.33
113199' 11.7 0.00 000 0.00 365,616.32 366,616.32 119.33
5
114199 11.7900 000 0.00 0.00 365.615 32 365,616.32 119 33
115199 11.75 0.00 000 0,00 365.616.32 365,616.32 119 33
116199 11.76 0.00 000 000 365.616.32 365.616.32 119.33
WIN 11.7600% 0.00 O.DO 000 365.616.32 355,616.32 119,33
trim 11.7500% 0.00 0.00 0.00 365.616.32 365,616.32 119.33
119199• 11750014 0.00 0.00 000 365.616.32 365,616.32 119.33
1110199• 11.7500%' 0.00 0.00 0.00 365,616.32 365.616.32 119 33
1/11/99 11.750074 000 0.00 0.00 365,616.32 365,616.32 119.33
1112199 11.750070 0.00 0.00 0.00 365.516.32 365,616.32 119.33
1113!99 11.750074 0.00 0.00 5.066.60 360,547.52 370,665.12 120 99
1114199 11.7500'Q
0 000 coo 0.00 360.547.52 360,547.52 11765
1115199 11.75 0.00 0.00 0.00 360,547.52 360,647.62 117.66
11116199• 11750074 0.00 0.00 0.00 360,647.52 360,547.52 117.68
111799' 11.75001111 0.00 0.00 0.00 360,647.52 350.647.52 117.68
1/16199' 11.7500 vj 0.00 000 0.00 360.547.52 380,547.52 11768
1119199 13.7500 000 0.00 - 0.00 360,547.52 360,617.52 137.71
1120199 13.7500% 0.00 0.00 0.00 360,547.52 360,547,52 137.71
1121199 13.750074 0.00 OAO 000 360,547.52 360.647.52 137.71
1122199 13.7600%1 0.00 0 00 13,303.29 347,244 23 400,457.39 152 95
1123/99' 13.7500%1 0.00 0.00 0.00 347.244 23 347,244.23 132.63
12499' 13.7500%11 0.00 0.00 0.00 347,244.23 347,244.23 132.53
WSW 13.7500%; 0100 0.00 0.00 347.244.23 347,244.23 132,63
12699 13750079 0.00 0.00 0.00 347,244.23 347,244.23 132.63
12799 13.75007L( 0.00 0.00 OAO 347.244.23 347,244 23 132.53
12699 13750074 0.00 000 0.00 347,244.23 347,244.23 132.63
1129109 13.750074 0.00 000 0.00 347,244.23 347,244.23 132.63
113099• 13,760011ij 0.00 0.00 0.00 341.24423 347,244.23 132.63
113199• 13.7500%11 0.00 coo 000 347,244.23 347,24423 132.83
TOTAI: +- 0.00 » - 12.365.01 16,372.09 11.104.755.02 11,16a.116.5a 3.901.10
Use Business Days -? Yes'/ Average Loan Balance » 358.215.25 Currant Month Interest 3,87747
Foal with Prime Yoe (Citibank • Daey) Current Month Float 23.63
Calculation Days 360 j Collateral Monitoring Fee 1,000.00 ' Last Month MI. 6 Float Adj. 0.00
Clearance Days 2.00 Total Fees 1.000.00
Loan Rau 6.0000%, - - -- - -
Total Due 4,901.10
qQL-
FES-18 99 09:54 FROM:
70:12124030459 PRGE:03?11
Run Date. Friday, January 29. 1999 FINOVA Capital Corporation (NovaLAX25) (EOMR INTSTMTI) Page. 2
Run Time, 14.39:00 Interest Statement
IF Services LTD diOhActuate Customer N. 35412 FINOVACap1raiCorporataniNowW125)
1302 Slate Hill Road a 3 Contact e: 1
Schedule X' 3
Camp Hill PA 17011 Collateral Type: TE DE
Data Rau Advance Adjustment Cash Loan Balance Cale- Bd. Interest
current month Beginning Balance. 201,300.00
1011990 11.7500% 0.00 -4,85000 0.00 276,450.00 276,450.00 90.23
112199• 11,7500% 0.00 O.Oo 0.00 276.450.00 278.450.00 90.23
11309' 117500% 0.00 000 0.00 276,45000 276,450.00 90.23
114199 11.76011% 0.00 0.00 0.00 276.450.00 276,450.00 9D 23
115189 117500% 0100 0.00 0.00 278.450 OD 276,450.00 9013
lam 117500% 0.00 000 0.00 278,450.00 276,450.00 90.23
10199 11.7500% 0.00 0.00 0.00 276,450.00 276,460.00 90,23
1/1999 11.7500% 0.00 0.00 0100 276.450.00 276,450.00 9023
119199' 11,750(1% 0.00 0.00 0.00 276.450.00 276.45000 90.23
1190199' 11.7500% 0.00 0.00 000 276,45000 276,45000 90.23
1011/99 117500% 0.00 0.00 000 276,450.00 276,460.00 9023
1112109 11.7500% 0.00 0.00 0.00 276,450.00 276,450.00 90.23
1013199 11.7600% 0.00 0.00 0.00 276,450.00 278,450.00 90.23
1114199 11.7600% 0.00 0.00 O.DO 275,450,00 278,450.00 90.23
1115M 11.7500% 0.00 0.00 0.00 270,450.00 276,450.00 90.23
1116199' 11.7500% 000 0.00 0.00 276.450.00 276,460,00 90,23
1117199• 11.750D% 0.00 0.00 0.00 276,450.00 276,460.00 90.23
1116199• 11.7500% 0.00 0.00 0.00 276.450.00 276,450.00 9023
111909 13,7500% 0.00 0.00 0.00 276,450,00 276.450.00 105.59
112009 13.7500% 0.00 0.00 0,00 276,450.00 276,450,00 105.69
112109 137500% 0,00 0,00 0.00 275.450.00 276.450.00 105.59
1r1209 13.7500% 000 0.00 0.00 276.450.00 276.450.00 105.59
1123090 13.7500% 0.00 0.00 000 276,450.00 276,450.00 105.59
1/24996 13.7500% 0,00 0.00 0.00 276,450,00 276,45000 105.59
112509 13.7500% 000 0.00 0.00 276.450.00 276.450.00 105.59
It26199 13.7600% 0,00 0.00 0.00 276.450.00 278,450.00 105.59
112709 13.7500% 0.00 0.00 0.00 276,450.00 276,450.00 105,59
1126199 13.7500% 0.00 000 0.00 278,450.00 276,450.00 105.59
18999 13.7500% 0.00 0.60 0.00 270.450.00 276,450.00 105.59
1/30199' 13.7600% 0.00 0.00 0.00 276,450.00 270,450.00 10559
113109' 137000% 0.00 0.00 0.00 276,450.00 276,45000 10559
TOTAL: 0.00 -4.850.00 0.00 8,569.950.00 8,569,250.00 2,991351
Use Business Days Yes Average Loan Balance 276 450.00 Current Month Interest ~ 2,996.51
Float with Prime Yes (Citloank - Daily) Current Month Float 000
Calculation Days 360 Last Montt Int. t Float Ad). 0.00
Clearance Days 0.00 Total Fast; 0.00
Loan Rau 60000% --
Total Due 2.99681
Customer Recap - IF Services LTD We Rohrers (35412)
Current Month IMoresl 6,897.91
Previous Month Int. Adl. 000
Total Interest 6,897,91
Total Fees 1,000.00
Total Due 7,897.91
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FORBEARANCE AGREEMENT
THIS AGREEMENT, dated as of the[Pday of March, 1999, by and between
FINOVA CAPITAL CORPORATION, having a place of business located at 111 West 40th
Street, New York, New York 10018 ("FINOVA') and IF SERVICES, LTD., D/B/A ROHRER'S
STROMBOLI having its principal place of business at 1302 Slate Hill Road, Building No. 3,
Camp Hill, Pennsylvania 17011 ( the "Borrower and Leo Bloom and Shirley R. Bloom,
having an address located at Route 183, Box 139, Summit Station, Pennsylvania 17979 (the
"Guarantors').
WHEREAS, the Borrower and FINOVA entered into that certain Security
Agreement, dated September 11, 1998 (the "Security Agreement"); and
WHEREAS, pursuant to the Security Agreement, FINOVA agreed to make
certain loans and advances to or for the benefit of; and
WHEREAS, the Borrower remains obligated to FINOVA for the monies
borrowed under the Security Agreement and otherwise; and
WHEREAS, certain defaults exist under the Security Agreement; and
WHEREAS, as of February 28, 1999, the Borrower was obligated to FINOVA in
the amount of $638,769.87, together with interest thereon at the interest rate set forth in the
Security Agreement plus FINOVA's costs and expenses, including but not limited to legal fees,
costs and disbursements and any and all additional advances made by FINOVA, including
advances made to protect FINOVA's collateral (collectively, "Obligations"); and
WHEREAS, on or about February 2, 1999, FINOVA sent written default letters
to the Borrower and Guarantors ("Default Letters') which Default Letters advised the Borrower
and Guarantors of the default under the Security Agreement; and
WHEREAS, the Borrower has requested that FINOVA forbear in commencing
any action against the Borrower and Guarantors, except as set forth herein, for the Obligations
owing to FINOVA under the Security Agreement and FINOVA is willing to forbear pursuant to
the terms and conditions contained in this Agreement; and
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged the parties agree as follows:
1. All of the above recitals are hereby incorporated by reference and made a
pan of this Agreement.
2. The Borrower hereby acknowledges that it is indebted to FINOVA under
the Security Agreement in the amount of the Obligations and the Security Agreement is in
default, which defaults remain urcurcd and unwaived by this Agreement.
•:00MAWCD0C5%AM eF-o0CMr646u
MAR-17-1999 14:22 516 663 6678 9 7:: P.03
.a+ - .-. ... ....
3. Borrower agrees to repay the Obligations to FINOVA as follows:
/ a. S15,690.65 upon the execution and delivery of this Agreement, such
amount representing interest accrued and owing for the periods ending
/ January 31, 1999 and February 28, 1999; and
b. $350,000 on or before April 15, 1999, upon the receipt of such amount
FINOVA shall subordinate its security interest in and to the
Borrower's machinery and equipment to the security interest of a new
lender, and
c. Interest only, commencing on March 15, 1999 and continuing on each
Monday thereafter until the entire balance of the Obligations has been
fully paid; and
d. Commencing on August 30, 1999 and continuing on each Monday
thereafter, in addition to the interest payments referred to in
subparagraph "c" of this paragraph "3", $500 to be applied as payment
of principal; and
e. Commencing on November 30, 1999 and continuing on each Monday
thereafter, in addition to the interest payments referred to in
subparagraph "c" of this paragraph "3", 5750 to be applied as payment
of principal; and
f. Commencing on January 31, 2000 and continuing on each Monday
thereafter, $1,000 to be applied as payment of principal until June 30,
2000 at which time the entire balance of the Obligations together with
all additional interest, fees and costs shall be paid to FINOVA.
4. FINOVA shall retain its senior security interests in and to all other assets
of the Borrower's other than as provided for in paragraph "3(a)" of this Agreement.
S. Guarantors consent to the entry of a judgment against them in the amount
of $638,769.82, as set forth in the Complaint - Civil Action: Confession of Judgment for
Money Damages and its related documents, a copy of which is annexed hereto as Exhibit "A"
(the "Judgment'.
6. Guarantors acknowledge receiving Notice of Judgment, Execution and
Defendants' Rights pursuant to Rule 2958.1 of the Pennsylvania Rules of Civil Procedure in the
form attached to this Agreement as Exhibit "B". Guarantors accept receipt of that Notice as
though that Notice were served in accordance with Rule 2958.1 and waive any defects in such
service.
;0DMAN000C5%AM CY-00047611\5
6678 97: P.04
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?i „l.? Y?Y YYY YY. • •??•
7. Guarantors waive any and all defects and imperfections in that Judgment,
their rights to petition to strike and/or open the Judgments, and their rights to assert by way of
counterclaim, setoff and/or recoupment any and all defenses to that Judgment.
8. Guarantors represent that they make each of the waivers and
acknowledgments set forth above and below in this Agreement only after conferring with their
own legal counsel, that such counsel has explained to them clearly and completely the nattrre of
the rights , and that they freely, knowingly, voluntarily and intelligently make each of those
waivers.
9. FINOVA agrees to forebear in commencing any enforcement upon the
Judgment provided there is no default under this Agreement.
10. Guarantors acknowledge and agree that, immediately upon the occurrence
of an Event of Default and without any further or prior notice to Guarantors, FINOVA may
execute upon the Judgment and exercise any other rights and remedies it may have under this
Agreement, the Security Agreement, the Guarantee, and/or law or equity even if an Event of
Default occurs within thirty (30) days of the date of this Agreement. Guarantors waive any right
under the Pennsylvania Rules of Civil Procedure to any notice, including any prior or ,
contemporaneous thirty (30) days' notice, before FINVOA may execute on the Judgment.
11. Borrower re-afrums, as per the Reporting Requirements of Section 9.1 of
the Security Agreement that:
a. Borrower shall provide FINOVA with monthly agings aged by
invoice date and reconciliations of Receivables with ten (10) days after the end of each month.
b. Borrower shall provide FINVOA with monthly accounts payable
agings aged by invoice date, outstanding or held check registers and inventory certificates within
ten (10) days after the end of each month.
C. Borrower shall provide FINOVA with monthly perpetual inventory
reports for the Inventory valued on a first-in, first-out basis at the lower of cost or market (in
accordance with GAAP) or such other inventory reports as are reasonably requested by
FINOVA, all within ten (10) days after the end of each month.
d. Borrower shall provide FINVOA with monthly unaudited financial
statements within thirty (30) days after the end of each month.
12. Guarantors shall each deliver or cause to be delivered to FINOVA so as to
be received by FINOVA within ten (10) days from the date of the Agreement, frilly executed
updated personal financial statements by Leo Bloom and Shirley R. Bloom, together with
Affidavits of Personal Financial Statement, each as annexed hereto, as Exhibits "C" and "D."
%ODMA nOOC$VJAU_DO0d3SaN
6678 9 7:: P•05
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13. The Forbearance Period shall mean the period from the date of this
Agreement until the "Termination Date', which Termination Date shall be the earlier of.
(a) receipt of payment in full by FINOVA; (b) immediately upon an Event of Default under this
Agreement (as such term is hereafter defined) or (c) June 30, 2000.
14. During the Forbearance Period, FINOVA agrees to forbear in
commencing any action upon the Security Agreement for the obligations owing to FINOVA
under the Security Agreement provided an Event of Default under this Agreement has not
occurred (as such term is hereafter defined).
15. An Event of Default under this Agreement shall mean the following: (a)
the failure of the Borrower to observe, or timely comply with, or perform any covenant or term
contained in this Agreement, after the date of this agreement, or the Security Agreement; (b) the
failure of the Borrower to pay MOVA any sum when due under this Agreement or the Security
Agreement; (c) the occurrence of a material adverse change subsequent to the date of this
Agreement with respect to the Borrower's finances or property, it being specifically understood
and agreed that FINOVA may make such determination in its sole and absolute discretion; (d)
any financial statements, affidavits of financial condition or other financial information delivered
or provided by the Borrower in connection with this Agreement or the Security Agreement after
the date of the agreement is or shall be false or misleading in any material respect; (e) any
warranty or representation made or deemed made by the Borrower in this Agreement or the
Security Agreement is or shall be untrue in any material respect; (f) if at any time FINOVA shall,
in FINOVA's sole and absolute discretion, consider the obligations insecure or any part of the
collateral unsafe, insecure or insufficient and The Borrower (or other person or entity acting on
The Borrower's behalf) shall not on FINOVA's demand furnish other collateral or make
payment on account, satisfactory to FINOVA in its sole and absolute discretion; (g) The
Borrower: (1) becomes a debtor for any bankruptcy proceeding; or (ii) admits in writing its
inability to pay its debts as they mature.
16. This Agreement shall be construed under and in accordance with the laws
of the State of New York. Borrower agrees that any action brought under this Forbearance
Agreement or otherwise shall be subject to the exclusive jurisdiction and venue of the Supreme
Court of the State of New York (without regard to any choice of law rules), County of New York
of the United States District Court for the Southern District of New York.
17. This Agreement represents the entire Agreement between FINOVA and
The Borrower, all such other agreements (except the Security Agreement and any guaranty)
being merged with this Agreement and the Security Agreement and any other guaranty
remaining in full force and effect.
18. No executory agreement and no course of dealing between The Borrower
and FINOVA shall be effective to change or modify this Agreement in whole or in part; nor shall
any change, modification or waiver of any rights or powers of FINOVA be valid or effective
unless in writing or signed by an authorized officer of FINOVA.
•. DDMAVe DDeSVtMZF_DOQer s. t\5
P.06
IN WITNESS WHEREOF, the undersigned hereby agree to the terms and
conditions set forth hereinabove.
FINOVA CAPITAL CORPORATION
By: l!/?
onna Calderaro, Assistant Vice President
IF SERVICES LTD. D/B/A ROHRER' S
STROMBOLI
By: 6 6 \
Leo Bloom, President
Shirley R .)Bloom, Secretary
Leo Bloom, Guarantor
]hk"Ir!4 R t-L?x
Shirley R .'Bloom, Guarantor
STATE OF NEW YORK )
) ss..
COUNTY OF NEW YORK )
On this ? day of March, in the year of 1999, before me, the undersigned, a Notary
Public in and for said state, personally appeared Donna Calderaro, personally known to me or
proved to me on the basis of satisfactory evidence to be the person whose name is subscribed to
the within instrument and acknowledged to me that she executed the same in her capacity and
that by her signature on the instrument, the person or the entity upon behalf of which the person
acted, executed the instrument.
NOTARY PUBLIC
.:0 DMANC DOCSWM 6_D 0= 6r 611
G LAM MALDONADO
NoWyP %Stateof Now York
ft OIMA8074406 Ousens Cgnty
Two fabve March 171 D _
COMMONWEALTH OF PENNSYLVANIA )
) ss.:
/ COUNTY OF SOHWM=17 +nJa?r?S )
Oa the N'6_ day of March, in the year of 1999, before me, a Notary Public in and for
said Commonwealth and County, the undersigned officer, personally appeared Leo Bloom, who,
acknowledged himself to be the President of IF SERVICES LTD. DB/A ROHM'S
STROMBOLI, and that he, as such officer, being authorized to do so, executed the foregoing
Forbearance Agreement, for the purposes therein contained by signing the name of the
corporation by himself as such officer. And said Leo Bloom did further certify and acknowledge
that he received a true, correct and complete copy of the foregoing Forbearance Agreement.
IN WITNESS WHEREOF, I have hereunto set my hand and official seal.
Notary Public
My Commission Expires:
Seal NOTARIAL SEAL
BARBARA J. FLEISCF100D, Notsry RrC6o
y/yorttifisp. Buh ?oumr. PA
?, corm?eslar Eaphf S•z/-99
COMMONWEALTH OF PENNSYLVANIA )
) ss.:
COUNTY OFseHuYL-KlrL&ws
On the t% day of March, in the year of 1999, before me, a Notary Public in and for
said Commonwealth and County, the undersigned officer, personally appeared Shirley R. Bloom,
who, acknowledged himself to be the Secretary of IF SERVICES I.M. DB/A ROHRER'S
STROMBOLI , and that she, as such officer, being authorized to do so, executed the foregoing
Forbearance Agreement, for the purposes therein contained by signing the name of the
corporation by herself as such officer. And said Shirley R. Bloom did further certify and
acknowledge that he received a true, correct and complete copy of the foregoing Forbearance
Agreement.
IN WITNESS WHEREOF, I have hereunto set my hand and official seal.
Notary Public
My Commission Expires:
Seal NOTARIAL SEAL
BARBARA J. FIEiSCH00D, Notary PuW
WMnsturp, Berk$ County, PA
My Commswrt Exporss r.24.99
::o NW000CMAME!'_DOC426rru
97:1 P. es
COMMONWEALTH OF PENNSYLVANIA )
ss.:
COUNTY OF SGHULR )
On the \Q day of March, in the year of 1999, before me, a Notary Public in and for
said Commonwealth and County, the undersigned, officer, personally appeared Leo Bloom, who,
I am satisfied is the person named in and who executed the within Forbearance Agreement and
he did acknowledge that he signed, sealed and delivered the same as his act and deed for the uses
and purposes therein expressed. And said Leo Bloom did further certify and acknowledge that
he received a true, correct and complete copy of the within Forbearance Agreement.
Notary Public
My Commission Expires:
.NO?t1A1 SEAL ,
Seal BA}1gARA J. R E• ? i
?y?? y.24.99 i
I
COMMONWEALTH OF PENNSYLVANIA
ss.:
COUNTY OF SCHUYLKILL
On the l' day of March, in the year of 1999, before me, a Notary Public in and for
said Commonwealth and County, the undersigned officer, personally appeared Shirley R. Bloom,
who, I am satisfied is the person named in and who executed the within Forbearance Agreement
and she did acknowledge that she signed, sealed and delivered the same as her act and deed for
the uses and purposes therein expressed. And said Shirley R. Bloom did further certify and
actaowladge that she received a true, correct and complete copy of the within Forbearance
Agreement. i
Notary Public
My Commission Expires:
Seal TARIAL 8?AL
FjJ. riE15CH000,s
FLE erhs CowpP
mIsm rlPul 224
::0DMANCD0CSUtMCr D0CM2641\f
516 663 6678 97%: P•09
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6147 5166636601 RUSKIN M05CUU
EXHIBIT uA)3
OBERMAYERREBMANN MAXWELL & HIPPEL LLP
Dy: WLalam J. Leonard, Esquire
Roger P. Cameron, Esquire i
Identification Nos. 42362, 53251
1617 John F. Kennedy Boulevard,19tb Floor i
Phlladelphla, PA 19103-1895
(215) 6653000
and
RUSKIN, MOSCOU, EVANS & FALTISCHEK, P.C.
By: Robert D. Shapiro, Esquire
PA Attorney IM. No. 63032
17b Old Country Road
Mineola, New York 115014366
(516),663-6600
FINOVA CAPITAL CORPO1i
111 West 40° Street,14° Floor
New York, N.Y. 10019
Plalndff,
Vs.
LEO BLOOM AND SHIRLEY R. BLOOM,
Individually and as Husband and Wlfe,
Route 193
Box 139
Summit Station, PA 17979
Attorney for Pialut111
FINOVA Capital
Corporation
COURT OF
SCHUYLKILL COUNTY
LAW DIVL9ION
No.
COMPLAINT - CIVIL ACTION c^
CONFESSION OF JCm(;piFNT FOR MONEY DAMAGE-8
Plaintiff FINOVA Capital Corporation C WOVA'), through its counsel, Obemaay!&
tea- .:. ?? v
Rebmann Maxwell der H'ippel LLP and Raskin, Moscou, Evans & Faltischek, P.C., fill t a`
complaint in confession of judgment against Defendants Loo Bloom and Shirley R. Bloom for
money damagcs pursuant to PL R. Civ. P. 2951(b), et seq., and in support thereof avers as f IMS::
1. FINOVA is a corporation duly organized and existing under and pursuant to the
laws of the State of Delaware, whoso addtYas is as eat forth above.
t:ow.uvcD=%AMPr DWA1t7TA
FRI 10:46 (TX/R% 40 x2461
03/12/09
MAR-17-1999 14:24 516 663 6678 97%: x.10
,(t 47 y •5166636601 RUS14IN MOSCOU ^>-
2. Defendants are individuals and citizens of the Commonwealth of Pennsylvania,
whose address is as set forth above.
3. On September 11, 1998, in connection with a commercial transaction, IF
SERVICES, LTD. ("LFn, a corporation which is duly organized and existing under and pursuant
to the laws of the State of Delaware, has a place of business located at 1302 Slate Frill Road
Building No. 3, Camp Bill, Pennsylvania 17011, and does business as ROIIRER'S
STROMBOLI. entered into a Note and Security Agreement (collectively "Me Security
Agreement') with FINOVA. A true and correct copy of the Security Agreement is atmexod
hereto and incorpomted heroin as Exhibit 'W'
4. On September 11. 1998, in connection with that same commercial transaction, and
Security Agreement, Defendants, as guarantors, entered into that certain Secured Continuing
Personal Guaranty (the'Y3uaranty'? withFINOVA, whereby Defendants unconditionally,
absolutely and irrevocably, jointly and severally guaranteed to FINOVA the Rill payment and
performance of all obligations owed by IF to FINOVA under the Security Agreement. A true
and correct copy of the Guaranty is an=cd hereto and incorporated herein as Exhibit "B".
5. IF is in default of the corms and conditions of the Security Agreement by among
other things its failure to pay in U1 when duo the obligations, pursuant to the terms of the
Seaaity Agreement
6. Pursuant to the Security Agreement, at Section 2.10 (o), FINOVA shall provide IF
with monthly accountings, which accountings shall be deemed correct, accurate and binding
upon IF and an account stated unless 1F notifies FINOVA in writing to the contrary within thirty
days after the account is rendered.
7. On or about September 30. 1998 FINOVA rendered and delivered to IF a monthly
904W
:.,OMAVCDOc VtMU_oo"1973\4
03/12/99 FRI 10;46 (TI/RI NO $2461
P.11
47 5166636601
RUSNIN MOSCOU
rac,n 04
accounting which monthly accounting (the "Accounting') was accepted by 1F without protest A
copy of the Accounting is annexed hereto and incorporated herein as Exhibit "C".
8. On February 2, 1999 IF was indebted to FINOVA in the amuunt of S631,S92.14.
9. Based upon the foregoing, Defendants are obligated to FINOVA in the amount of
the Obligations.
10. On February 2, 1999, PlaintifF, served by Federal Express, a Notice of Default
upon IF. A true and correct copy of this notice is annexed hereto and incorporated herein as
Exhibit "D".
11. On February 2. 1999, Plaintiff served. by certified trail. a Notice of Default upon
Defendants. A true and correct copy of this notice is annexed hereto and incorporated herein as
Exhibit "B".
12. Pursuant to the Accounting as of February 8,1999IF is indebted to FINOVA in
the amount ofS6380769.82 plus interest and costs.
13. The Guaranty apecifically permits a confession of Judgment for stoney damages
for the recovery all sutras due thereunder.
14. The warrant of attorney appearing in the Guaranty is less than twenty (20) yam
old and has not been assigned or previously exercised with respect to the defaults at issue hero.
15. An Affidavit of Default it aencred hereto and Incorporated heroin as Exhibit "F'.
16. An Affidavit certifying that the addrms of FINOVA is as set forth above, that the
last {mown address of Defendants is as set forth above, that each of their incomes exceod+
S10.000 per year, and that neither is in the military service of the United States and/or its States,
Territories or Allies is annexed hereto and incorporated herein as Exhibit "a'.
17. An Affidavit certifying that the uuruurion upon which this matter is based is not
taco
+OOMAV000CrAMV-0O"1171%4
3
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MAR-17-1999 14125 516 663 6678 97: P.12
r4 A V V V J V V I V I4'u... ^ .. W•
47 5166636601 RUSKIN MOSCOU
vT?r;E ' e5
''
s entail or installment sale, contract or account is annexed hereto and incorporated herein as
Exb%blt 'Ir'.
18. An Affidavit certifying that me transaction is not a consumer credit transaction
with an natural person is annexed hereto and incorporated herein as Exhibit "r'.
19. An Affidavit testifying that the transaction upon which this matter is based is a
business transaction is annexed hereto and incorporated herein as Exhibit "J^.
WHEREFORE, PtsiatiQ FINOVA Capital Corporation, as authorized by the warrant of
attorney appearing in the Guaranty, respectfully demands that judgment be enteral in its favor
and against Defendants Leo Bloom and Shirley R. Bloom, jointly and acverally, individually and
as husband and wife, in the amount of S638,769.82, together with interest and attorneys fees
thereon.
Rc pocMWy submitted.
OBERMA REBMANN MAXWELL & HIPPEL LLP
Dated. O'1/0? ?99 Br
Wi . Leonard, Esquire
Roger P. Cameron, Esquire
Identification Nos. 42362, 53251
One Pear Center, 19' Floor
1617 John P. Kennedy Boulevard
Philadelphia, PA 19103-1895
(21'5)665-3000
• and -
RURKIbL MOSCOU, EVA S & FALTISCHM P.C.
By.
Robert D. Shnp?, Esq
PA Attorney I.D. No. 63032
Attorneys for Plaintiff
FINOVA CAPrrAL CORPORATION
9060 DOC161l7rM .
::00W1VCD0CMMFF- --
0]/12/99 FRI 10:46 (TX/R1 NO 62401
YER REBMANN MAXWELL 6r
William J. Leonard, Frgttlre
Roger P. Cameron, Esquire
0001- ldmtineetlon Nos. 12362, 53251
1617 John F. Kennedy Boulevard, 19th Floor
PbDadaipb"'PA 19103-1895
(215) 665-3000
EXHOIT I&W
RUSKIN, MOSCOU, EVANS B FALT ISCHEK, P.C.
By. Robert D. Shapiro, Esquire
PA Attorney I.D. No. 63032
NY Attorney LD. No. RS-7769
170 Old Country Road
Mineola, New York 11501.4366
FINOVA CAPITAL CORPORATION.
Plaintiff,
vs.
LEO AND SHIRLEY R. BLOOM,
Attorneys for Plaintiff
COURT OF COMMON PLEAS
SC1iUYLK ML COUNTY
LAW DIVISION
No. J-231-99
Notice Under Rule 2958.1 of JudL'ment and Execution Thereon
Notice of Defendants' Rights
To: LEO BLOOM
A judgment in the amount of 5728,785.32 has been entered against you and in favor of the plaintiff
without any prior notice or hearing based on a confession of jud(pnrsrt contained in a written agreement or
otter paper allegedly signed by you. The sheriff may take your money or other property to pay the
judgmeste at any time after thirty (30) days after the data on which this notice is served on you.
You may have legal rights to defeat rho jW%mmt or to prevent you money or property from being
talm. YOU MUST FILE A PETITION SEEKING RELIEF FROM THE JUDGMENT AND PRESENT
IT TO A JUDGE WITHDd THIRTY (30) DAYS AFTER THE DATE ON WHICH THIS NOTICE IS
SERVED ON YOU OR YOU MAY LOSE YOUR RIGHTS.
YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT
HAVE A LAWYER OR CANNOT AFFORD ONE, GO TO OR TELEPHONE THE OFFICE SET
FORTH BELOW TO FIND OUT WHERE YOU CAN GET LEGAL HELP.
Central Pena Legal Services
120 North 8th Street
Lebanon, Pennsylvania 17046-5097
(900) 299-6599
app-17-1999 :4:225
Roger P. Cameron, Esquire
Ober=yer Rebmann ?Amwoll A MPPaI LLP
Attorneys for Plaintiff
1617 John F. Kennedy Blvd., 19th Floor
Philadelphia PA 19103.1895
(215) 665.3000
1
P.14
W 518 883 8478
YER REBMANN MAXWELL & I
William J. Leonard, Esquire
Roger P. Cameron, Esquire
Identifuation Nos 42762, 53251
1617 John F. Kennedy Boulevard, 19th Floor
Phiiadelpbia, PA 19103-1895
(215) 665-3000
LLP
RUSKIN, MOSCOU, EVANS & FALTISCIIEK,
By- Robert D. Shapiro, Esquire
PA Attorney LD. No. 63032
NY Attorney I.B. No. RS- 7769
170 Old Country Road
Mineola, New York 11501.4366
FINOVA CAPITAL CORPORATION.
Plaintiff,
VS.
LEO AND SMRLEY R. BLOOM,
Attorneys for Plaintiff
COURT OF COMMON PLEAS
SCIMLICILL COUNTY
LAW DMSION
No. J - 231- 99
To: SWRLEY R. BLOOM
10015
A judgment in the amount of S728,785.: l has boa catered againstyou and in favor of the plains
without any prior notice or bearing based on a confession of judgment eontaiaed in a written agreement or
other paper allegedly signed by you. The sheriff 'may take your money or other property to pay the
judgment at any time after thirty (30) days after tAc date on which this notice is served an you.
You may have legal rights to defeat the jtl gnuat or to prevent you money or property from being
taken. YOU MUST FILE A PETITION SEEKWG RELIEF FROM THE JUDGMENT AND PRESENT
IT TO A JUDGE WITHIN THIRTY (30) DAYI AFTER THE DATE ON WHICH THIS NOTICE IS
SERVED ON YOU OR YOU MAY LOSE YOUR RIGHTS.
' YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT
HAVE A LAWYER OR CANNOT AFFORD 0!?1E, GO TO OR TELEPHONE THE OFFICE SET
FORTH BELOW TO FWD OUT WHERE YOU CAN GET LEGAL HELP.
Central
120
Lebanon, P
n Legal Services
th 8th Street
ylvania 17046-5097
299.6599
Roger P. Cameron, Esquire
Obermayer Rebmann Mauwell & Mmml LLP
Attorneys for P6tintilf
1617 John F. Kennedy Blvd., 19th Floor
Philadelphia PA 19103-1895
(215) 665-3000
M0P-17-1-4Z 1dr= c.r ell - -1
11 fI11
CERTIFICATE OF PERSON
.o Bloom hereby certifies under
I hereby execute and deliver thh
(FINO dA") for the purpose of inducing FIN(
advance monies and/or extend credit and other
DB/A ROHRER'S STROMBOLI ("Borrower"
("Security Agreement") dated September 11, 1!
with all security agreements, mortgages, guarar
executed by Borrower and delivered to FINOV
FINANCIAL STATEMENTS
of perjury that:
certificate to FINOVA Capital Corporation
VA, now and from time to time hereafter, to
financial assistance to IF SERVICES, LTD.,
pursuant to that certain Security Agreement
98 between Borrower and FINOVA (together
ties, assignments, instruments and documents
k in connection therewith (the "Agreements").
2. Attached hereto as Exhibit A is 1
1999, said personal financial statement is a fair
such time.
3. 1 do not intend to incur debts u
due. The aggregate value of my property at a
debts.
4. I do not contemplate filing a p
of any threat of a filing of any bankruptcy or
personal financial statement as of March _,
:sentation of my assets and liabilities as of
t are beyond my ability to pay as same become
valuation is sufficient in amount to pay my
in bankruptcy nor do I have any knowledge
ncy proceeding against me.
5. The statements contained herein shall be continuing in nature and shall be deemed
to have been remade upon each borrowing by Borrower under the Agreements, unless and until I
give FINOVA prior written notice to the contrary delivered to 111 West 401h Street, New York,
NY 10018, attention Philip Commaccio, Vice resident. I hereby acknowledge that FINOVA
has relied upon the warranties, representations and covenants contained herein.
Signed in New York, New York on March 1999
Sworn to before me this
-day of March, 1999 Leo Bloom
Notary Public
::0 DMAV'CDUCNIMFF_D00Ud 1DM
MAP-17-1999 :4126
516 663 6678 97.:
r.16
FiNOVA CAPITAL CORPORATION
Statement
Name: Leo Bloom Home Address: Route 183, Box 1:
of inducing FINOVA ("ComPanY") to extend credit 10
intending to be legally bound hereby, Undersigned W
statement of Undersigned's financial Condition On the
Company of toy MATERIAL ADVERSE CHANGE in
the contrary received by Company from undersigned
continuing warranty that thete has been no tnatcritl adw
In consideration of Company, extrusion of credit in i
whatsoever, undersigned agrees with company that in
event that company determines that such informaamr t
uive Company any of the notices hereinbefore re#
Company option be deemed to be immedimaly due ai
Statement could result in criminal action
Marches 1999
, Summit Stations, Pennsylvania 17979. For the purpose
r upon the request of Undersigned from time to time and
tits this personal Statement as being t true and correct
ova date, and agrees to give immediate writ= notice to
arch futanclal condition. In the absence of written notice to
this personal Statement shall be deemed to constitute a
to cl=Ze in Undersigned's financial condition.
speet of which Undersigned is obligated in any manner
he event of Undersigned's failure to insolvency: or in the
warranties are untrue of in the event undersigned fails to
:d, all of Undersigned's Liabilities to company shall at
l payable. Any willful misrepresentation on this Personal
to
rCe
urns
morns
ee
slatoieaanee tnwff* aced not be mailed ,r you
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THE UNDERSIGNED CERTIFY (IES) THJ
INFORMATION HEREIN HAS BEEN CA]
THE UNDERSIONKO EXPRESSLY AUTHORIZE (S) 111'701
APPLIED HEREIN, INCLUDING BUT NOT LOWED TO REP
ITS DI.SCRKTION DEEMS NECESSARY. ANYONE ME
INFORMATION IN CONNECTION WITH TVM STATEMBNT.
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NED HEREIN IS AUTHORU7.ED TO FURNISII THEM WITH
are jointly owned)
_ 165.16.9061
Social Security t1 Date of Birth
5
P.20
Exhibit "D"
CERTIFICATE OF PERSONAL FINANCIAL STATEMENTS
Shirley R. Bloom hereby certifies under penalty of perjury that:
1. 1 hereby execute and deliver this certificate to FINOVA Capital
Corporation ("FINOVA") for the purpose of inducing FINOVA, now and from time to time
hereafter, to advance monies and/or extend credit and other financial assistance to IF
SERVICES, LTD., DB/A RO11RER'S STROMBOLI ("Borrower") pursuant to that certain
Security Agreement ("Security Agreement") dated September 11, 1998 between Borrower and
FINOVA (together with all security agreements, mortgages, guaranties, assignments, instruments
and documents executed by Borrower and delivered to FINOVA in connection therewith (the
"Agreements").
2. Attached hereto as Exhibit A is my personal financial statement as of
March _, 1999, said personal financial statement is a fair presentation of my assets and
liabilities as of such time.
3. I do not intend to incur debts which are beyond my ability to pay as same
become due. The aggregate value of my property at a fair valuation is sufficient in amount to
pay my debts.
4. 1 do not contemplate filing a petition in bankruptcy nor do I have any
knowledge of any threat of a filing of any bankruptcy or insolvency proceeding against me.
5. The statements contained herein shall be continuing in nature and shall be
deemed to have been remade upon each borrowing by Borrower under the Agreements, unless
and until I give FINOVA prior written notice to the contrary delivered to 111 West 40th Street,
New York, NY 10018, attention Philip Commaccio, Vice President. i hereby aciotowledge that
FINOVA has relied upon the warranties, representations and covenants contained herein.
Signed in New York, New York on March ___, 1999.
Sworn to before me this
- day of March, 1999
Notary Public
::0 DMAVCDOCSW 4U_DOC162646:4
MAR-17-1999 14:27
516 663 6678
Shirley R. Bloom
97%
P.21
AU rA.L o16 663 6678 R.%MF/WURST
tTNOVA CAPITAL CORPORATION
Personal Statement
March _, 1999
Z022
Name: Shirley R. Bloom Home Address: Route 183, Box 139, Summit Stations, pc=ylvanla 17979. For the
purpose of inducing FINOVA C'Company") to extend credit to or upon the request of Undersigned from time to
time and intending to be legally bound hereby, Undersigned submits this Personal Statement as being a true and
correct statement of Undersigned's fmaneial couditiear on the above date, and agrees to give immediate written
notice to Company of any MATERIAL. ADVBTLSE CHANGE in such financial condition. In the absence of written
notice to the contrary received by Company from Undersigned , this Personal Statement shall be deemed to
constitute a continuing warranty that there has been no material adverse change In Undersigned's financial
Condition.
La consideration of Company extension of credit in respect of which Undersigned is obligated in any manner
whatsoever, Undersigned agrees with company that in the event of Undersigned's failure to insolvency: or in the
event that company determines that such information or warranties are untrue or in the event Undersigned fails to
give Company any of the notices hereiabefore required, all of Undersigned's Liabilities to Company shall at
Company option be deemed to be immediately due and payable. Any willful misrepresentation on this personal
Statement could result in criminal action.
ASICLS Liabilities
Cash In hand k m Banks Notes Payable to BenWStttmad
fee Schedule C
.S. DOV, SCNndts-stn schedule A I
Limited Seanihaset Schedule A I
Willed Secuntia•see schedule A Notes payable to Bsaks•Unsecpred lee
schedule C
Notes Payable to relatives see schedule C
Accounts sod Notts Rcceiviblt Due from
Mends dcreladvea Notes payablt to others-son schedule C
Accounts and Notts Rcceivsbnc Due from
Others ood I ACtOUnts and bills due
AtCOpn6 and Notes Reunvsble•Doubttul Unpaid Income Tai
Real hJtata orned•sN Schedule D Other unpaid taxes and miaesn
Real Errata Munples Raeivable Red Mutt Mortgages payable-see
eehedule e
Automobiles I Other debuatrnure
Other l'MmA I'MPerty
Cash Surtedda Vdut•Litc Insurance
see schedule D
Either atsets•iuhare•aae schedule R
Pledged I 1
Unpitdirtd TOTAL LIABILITIES
Vested Invaau•(rnisty, Pension Plans,
Pit. Shanne.DeirmdCa en.l Net WoM
TOTAL ASSE73 TOTAL LI OUTIES dt NET WORTH I
SOURCES OF INCOME ANNUAL PERSONAL INFORMATION
Gala S BVItnele or occ Ynallon
Bonus Std Comnrtnons S
Iv,dends aM Inlensn S
Kcal Ernie lnpume S Em to et
Addrers
phone
income hem Alimony, Child Support or Scpintt Panntr or afCcer,n my oNer vealnure eompany'S
name
::ODMAtPCDOCS\RM 611_DOC42641N
MRR-
vedad if you
b
d Address
e n
not
Malnueunee lncotno ner
ed as a basis for
M Phone
et
do m choose to We it con
repaying this ablipden Na. De dmu
Other lneoewlu ndn Aga
TOTAL S
CONTINGENT LIABILMES
GENERAL INFORMATION
endaur cwftker at mmmotfor Personst ChecW" Aeemmu esrded at
ertenal Saving AOenun esrtted at
f lnwma T4tH t[altd thou h rhst Nu7
On leave or Contaeu
f -Ifty use" led cdt4ce scheduleE
Le IcWms
Prmisionfor FederalineomtTsaxs S USE3EPARATESHEET
Are you dekndenl at plaintiff H any cults or legal
actions 7 aid
OLUeSpealalDebt S Any unsalisfiodjudpdenuaf4Myou7
Wn
luve you ever been personally involvtd bl
*amluvpwy ceedin 7if"VFS"tx l
::01)MAIF000SRMff DOCe61641M
MAR-17-1999 14128
516 663
8
,
SCH
No. of shuts or Face value
onds EDULE A-51Ut:RS A14U HUDN
Description UO Ureweu
In Name of
'Market
Listed
. T,1 l,., TTCT
Dempdonorprip-cm
Waddrw Dix Sloe in
Ae uired Nine. Cost Inc
For Market
Value mwpp
Arc nlh+ mo a ee
SCHEDULE
Amount D-LIFE INSURANCE. CARRIED INCLU
Name of Co an Owner DING N.S.L.1 AND G
Beneftei ROUP IN
CSv SURANCE
Loam
. nnc.?n ni c,\CGT t ATOr STliCT
J W1L V V vu ..•v • •.r....
Description Value r..r . r--. r..
Title in Name Pledged
S Of
Addressof
e
Pledge
y,? YLY
MAR-1
:.ODMAVCDOC3VlMEF_DDC16161fu 9
d
Nuna of attomey (if any) Name of Accountant (if any)
THE UNDERSIGNED CERTIFY (MS) THAT BOTH PAGES HEREOF AND THE
INFORMATION HEREIN HAS BEEN CAREFULLY READ AND IS TRUE AND CORRECT
THB UNDBASIONED EUPMSLY AUTHORIZZ (S) FINOVA To MAKE SUCH D1GUMISS CONCMtNING THB INFORMATION
AFPLMD HERSIN. INCLUDING BUT NOT LAUTRD TO REPORTS FROM CR!<DR PMORTTNO AGENCV.S. AS THE COMPANY IN
ITS DIS =ON DEEMS NECESSARY. ANYONS MBNTIONeO HERCIN LS AViNORIZF.D TO FURNISH THEM WTTH
INFOIUMTION IN CONNECTION WITH THIS STATEM1247.
(spouse must s(pt (f any auets arr jo(ndy owned)
Much .1999 2084 E•6fi4?
sig utore Social Security N Date of Bistb
!:ODMALPCDOC=MV-DOC 54rA 10
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OBERMAYER REBMANN MAXWELL. & HIPPEL I.I.P
By: William J. Leonard, Esquire
Roger P. Cameron, Esquire
Identification Nos. 42362, 53251
1617 John F. Kennedy Boulevard, 191h Floor
Philadelphia, PA 19103-1895
(215) 665-3000
Attorneys for Plaintiff
FINOVA CAPITAL CORPORATION
111 West 401' Street, 141h Floor
New York, NY 10018
Plaintiff,
VS.
IF SERVICES ).TD., t/a
ROHRER STROMBOLI,
1302 State Hill Road, Bldg. No. 3
Camp Hill, PA 17011
COURT OF COMMON PLEAS
CUMBERLAND COUNTY
CIVIL ACTION - LAW
No.
AFFIDAVIT OF DEFAULT
STATE OF NEW YORK
. SS.
COUNTY OF NEW YORK
I, Donna Caldcraro, being duly sworn according to law, depose and say that:
I am an Assistant Vice President of FINOVA Capital Corporation,
Plaintiff in the above-captioned matter, and am authorized to make this affidavit on its
behalf;
2. Defendant breached and violated the terms of the Loan and Security
Agreement by, among other things, failing to make the payments thereon in full when
due and other breaches of the financial covenants therein, as set forth in the Complaint;
3. Despite notice of default to Defendant, Defendant has failed to cure these
breaches and violations of the Loan and Security Agreement. See, Exhibit "C" to the
Complaint;
4. Defendant breached and violated the terms and conditions of the
Forbearance Agreement by, among other things, failing to make the payments thereon in
full when due and failing to fulfill financial covenants therein, as set forth in the
Complaint;
5. The Note specifically permits confession of judgment for money damages
for the recovery of all amounts due under the Loan and Security Agreement and any
other charges and interests, together with attorneys fces and costs;
6. The warrant of attorney appearing in the Loan and Security Agreement is
less than twenty (20) years old and has not been assigned or previously exercised with
respect to the defaults at issue in this matter; and
By reason of the aforesaid, Plaintiff is entitled, under the terms of the
Loan and Security Agreement, to the entry of a money judgment against Defendant in the
total amount of $650,537.37, plus interest from September I, 1999, attorneys fees and
costs, as set forth in the Complaint.
Dated: September 20, 1999
i
na Caldcraro
Assistant Vice President of
FINOVA Capital Corporation
Swom to and subscribed
before me this j:W day
of September, 1999
1 ? A Q x4NOTA6
PU LIC
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Wtary pumso, State of Nov York
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09/24/99 08:,23 FAX 51e 903 0878 R1tEF/NURST
W.J.L.
OBERMAYER REBMANN MAXWELL & HIPPEL LLP
By: William J. Leonard, Esquire
Roger P. Cameron, Esquire
Identification Nos. 42362, 53251
1617 John F. Kennedy Boulevard, 19th Floor
Philadelphia, PA 19103-1895
(215) 665-3000
SEP 2 91999
Attorneys for Plaintiff
0004
FINOVA CAPITAL CORPOR
111 West 40" Street, 14" Floor
New York, NY 10018
Plaintiff,
VS.
IF SERVICES LTD., t/a
ROHRER STROMBOLI,
1302 State Hiil Road, Bldg. No. 3
Camp Hill, PA 17011
COURT OF COMMON PLEAS
CUMBERLAND COUNTY
CIVIL ACTION - LAW
No.
AFFIDAVIT OF ADDRESSES INCOME AND NON MILITARY SERVICE
STATE OF NEW YORK
. SS.
COUNTY OF NEW YORK
I, Donna Calderaro, being duly sworn according to law, depose and say that:
1. I am an Assistant Vice President of FINOVA Capital Corporation, Plaintiff in the
above captioned matter, and am authorized to make this affidavit ou its behalf;
2. The address of Plaintiff is 111 West 4& Street, 14a' Floor, New York, NY
10018.
3. The address of the Defendant is 1302 State Hill Road, Bldg. No. 3, Camp Hill, PA
17011;
4. To the best of my knowledge or information and belief, the income of Defendant
exceeds $10,000 per year, and
__00/24/99 08:33 FAX 316 883 0078 RKEF/WMST ®006
5. To the best of my knowledge or information and belief, the Defendant is 1141 in
the Military Service of the United States, nor any State or Territory thereof, or its allies as
defined in the Soldiers' and Sailors' Civil Relief Act of 1940 and amondmn?enttssQ thereto.
/%A A
Dated:
onna alderato
Assistant Vice President of
FINOVA Capital Corporation
Sworn to and subscribed
before me this Vday
of .1999
NOT' PUBLIC
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OBERMAYER REBMANN MAXWELL & HIPPEL LLP
By: William J. Leonard, Esquire
Roger P. Cameron, Esquire
Identification Nos. 42362, 53251
1617 Jobn F. Kennedy Boulevard, 19th Floor
Philadelphia, PA 19103-1895
0 000
Attorneys for Plaintiff
FINOVA CAPITAL CORPOR
111 West 40th Street, lVh Floor
New York, NY 10018
VS.
Plaintiff,
IF SERVICES LTD., Vat
ROHRER STROMBOLI,
1302 State Hill Road, Bldg. No. 3
Camp Hill, PA 17011
COURT OF COMMON PLEAS
CUMBERLAND COUNTY
CIVIL ACTION - LAW
No.
AFFIDAVIT THAT TRANSACTION DOES NOT ARISE FROM A RETAIL
INSTALLMENT SALE CONTRACT OR ACCoxm
STATE OF NEW YORK
COUNTY OF NEW YORIC
SS.
I, Dolma Calderaro, being duly sworn according to law, depose and say that:
I am an Assistant Vice President ofFINOVA Capital Corporation, and am
authorized to make this affidavit on its behalf, and
2. The transaction upon which the judgment is being entered does not aline
from a retail or installment sale, contract or account.
Dated: Ana i4
Donna Calderaro
Assistant Vice President of
FINOVA Capital Corporation
Sworn to and subppcribed
bcfo o this2Nday
of d4m.i2?L4. '1999
NOT Y UBLIC
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OBERMAYER REBMANN MAXWELL. & IIIPPEI. I.LP
By: William J. Leonard, Esquire
Roger P. Cameron, Esquire
Identification Nos. 42362, 53251
1617 John F. Kennedy Boulevard, 19th Floor
Philadelphia, PA 19103-1895
(215) 665-3000
Attorneys for Plaintiff
FINOVA CAPITAL CORPORATION
111 West 401h Street, 141h Floor
New York, NY 10018
Plaintiff,
VS.
CIVIL. ACTION - LAW
IF SERVICES LTD., t/a
ROHRER STROMBOLI,
1302 State Hill Road, Bldg. No. 3
Camp Hill, PA 17011
Defendant.
COURT OF COMMON PLEAS
CUMBERLAND COUNTY
No.
AFFIDAVIT OF NO CONSUMER CREDIT TRANSACTION
STATE OF NEW YORK
COUNTY OF NEW YORK
. SS.
1, Donna Caldcraro, being duly sworn according to law, depose and say that:
I am an Assistant Vice President of FINOVA Capital Corporation, and am
authorized to make this affidavit on its behalf; and
2. The transaction upon which thejudgment is being entered does not arise
from a consumer credit transaction with a natural person.
Datcd: Scptcmbcr 20, 1999
?LX6' &W%auj
Donna Caldcraro
Assistant Vice President of
FINOVA Capital Corporation
Sworn to and subscribed before
me this N' day of Scpternbccrr 1999
NOTARY POBLIC/
ODMA n'Lx S NMI/ [Wtl1ls1
OLAM MAlDO M
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OBERMAYER REBMANN MAXWELL & HIPPEL mx
By: William J. Leonard, Esquire
Roger P. Cameron, Esquire
Identification Nos. 42362, 53251
1617 John F. Kennedy Boulevard, 19th Floor
Philadelphia, PA 19103-1895
(215) 665-3000
Attorneys for Plaintiff
FINOVA CAPITAL CORPORATION
111 West 401h Street, 141h Floor
New York, NY 10018
Plaintiff,
VS.
IF SERVICES LTD., t/a
ROHRER STROMBOLI,
1302 State Hill Road, Bldg. No. 3
Camp Hill, PA 17011
COURT OF COMMON PLEAS
CUMBERLAND COUNTY
CIVIL ACTION - LAW
No.
AFFIDAVIT OF BUSINESS TRANSACTION
STATE OF NEW YORK
COUNTY OF NEW YORK
. SS.
1, Donna Calderaro, being duly sworn according to law, depose and say that:
1. 1 am an Assistant Vice President of FINOVA Capital Corporation, and am
authorized to make this affidavit on its behalf, and
2. The transaction upon which the judgment is being entered is a business
transaction.
Dated: September 20, 1999
"yxe',
onna Calderaro
Assistant Vice President of
FINOVA Capital Corporation
Swo to and subscribed before me this &111ay
of [y`.119999 /
NOTARY P BLIC
OpNAft MKS N%III IMKC'n A I OuDYS MALDONADO
Notary Public, State of NewYbtt
No. DI MA5074495 Queens County
Term Expires March 17 1111 l!
OBERMAYER REBMANN MAXWELL & HIPPEL LLP
By: William J. Leonard, Esquire
Roger P. Cameron, Esquire
Identification Nos. 42362, 53251
1617 John F. Kennedy Boulevard, 19th Floor
Philadelphia, PA 19103-1895
(215) 665-3000
Attorneys for Plaintiff
FINOVA CAPITAL. CORPORATION
111 West 40 Street, 14'h Floor
New York, NY 10018
Plaintiff,
VS.
IF SERVICES LTD., t/n
ROHRER STROMBOLI,
1302 State Hill Road, Bldg. No. 3
Camp Hill, PA 17011
COURT OF COMMON PLEAS
CUMBERLAND COUNTY
CIVIL ACTION - LAW
No.
VERIFICATION
Understanding that false statements made in this verification arc subject to the
penalties of 18 Pa. C.S.A. Section 4904 relating to unswom falsification to authorities, l
verify that 1 am an Assistant Vice President of FINOVA Capital Corporation, the
Plaintiff in the above-captioned matter, that I am authorized to make this verification on
Plaintiffs behalf, and that the facts set forth in the foregoing complaint are true and
correct to the best of my knowledge or information and belief.
Dated: September 20, 1999
I
(/t.,
Donna Caldcrar
Assistant Vice P csident of
FINOVA Capital Corporation
QDNA KINKS AM li I%lCn,f:.I
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G&N
Process Sening Division
The Bellevue
Suite 2 10
210 South Broad Street
Philadelphia. PA 19102
(215) 735-7820
Fax(213)790•1376
PLAINTIFF(S)
DEFENDANT(S)
SERVE AT
183, 9mtdt Station
RAILI&lFMa, EtmiVanin
DATE RECEIVED
Philadelphia
Association of
Profeminnal
Process S n
SERVE BY
O ClvllActlon O
O Summons Q
O Writ of d
991
SPECIAL INSTRUCTIONS
Served and made known to IF S?tvisir?q, L.
on the 13th day of Docerber ,19 99 at o'clock, M.,
at 189-9 idt Station CountyofaMX5!hrrT1n
Commonwealth of Pennsylvania, In the manner described below:
O Defendant(s) personally served.
O Adult family member with whom said Defendant(s) reside(s). Relationship Is
O Adult In charge of Defendant's residence who refused to give name or relationship.
O Manager/Clerk of place of lodging In which Dofendant(s) reside(s).
O Ag?oMn In charge of Defendant's off lea or usual place of business.
6 an officer of said Defendant company.
O Other
DESCRIPTION AGE HEIGHT WEIGHT RACE SEX OTHER
On the dayof
Defendant not found because: O Moved O Unknown
19 , at o'clock, M.,
O No Answer O Vacant O Other
NAMEOFSERVER
Jaye Daurmad being duly swom according to law, deposes and
says that he/she Is process server herein names; and that the facts herein set forth
above are true and correct to the best of their knowledge, information and belief.
Sheriff
AFFIDAVIT OF SERVICE
Process Server/ Competent
DEPUTIZED SERVICE
Now, this day of 19 . I do hereby deputize the
toservethis O Summons O Complaint O Other
By (Competent Adult)
Swo to a s bsutbed lore trilis
of 19_
and make return thereof and according to Law.
County Shetill's Chock $
Law Firm __Wz
Attorney's Name
Address
ATTEST
PRO PROTHY
DATE
C1990 Philadelphia Assoc, of Professional Process Servers Rev 1
OBERMAYER REBMANN ..sAXWELL & HIPPEL LLP
By: William J. Leonard. Esquire
Roger P. Cameron, Esquire
Identification Nos. 42362, 53251
1617 John F. Kennedy Boulevard. 19th Floor
Philadelphia, PA 19103-1895
(215) 665.3000
Attorneys for Plaintiff
FINOVA CAPITAL CORPORATION
COURT OF COMMON PLEAS
Plaintiff,
CUMBERLAND COUNTY
VS.
CIVIL ACTION - LAW
IF SERVICES LTD., t/a
ROHRER STROMBOLI, No. 99-6148 CIVIL
Defendant.
Notice Linder Rule 2958.1 of Judgment and Execution Thereon
Notice of Defendants' Rlghte_
To: IF SERVICES LTD. t/n ROHRER STROMBOLI
A judgment in the amount of 5753,421.50 plus costs has been entered against you and in favor of
the plaintiff without any prior notice or hearing based on a confession of judgment contained in a written
agreement or other paper allegedly signed by you. The sheriff may take your money or other property to
pay the judgment at any time after thirty (30) days after the date on which this notice is served on you.
You may have legal rights to defeat the judgment or to prevent you money or property from
being taken. YOU MUST FILE A PETITION SEEKING RELIEF FROM THE JUDGMENT AND
PRESENT IT TO A JUDGE WITHIN THIRTY (30) DAYS AFTER THE DATE ON WHICH THIS
NOTICE IS SERVED ON YOU OR YOU MAY LOSE YOUR RIGHTS.
YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE, IF YOU DO NOT
HAVE A LAWYER OR CANNOT AFFORD ONE, GO TO OR TELEPHONE THE OFFICE SET
FORTH BELOW TO FIND OUT WHERE YOU CAN GET LEGAL KELP.
Cumberland County Bar Association
2 Liberty Avenue
Carlysle Pennsylvania 17013
(800) 990-9108
(717)249.3166
Roger P. Cameron. Esquire
Obermayer Rebnman Maxwell & Ilippel LLP
Anomeys for Plaintiff
1617 John F. Kennedy Blvd., 19th Floor
Philadelphia PA 19103.1895
(215) 665-3000
218983
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IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA
CIVIL DIVISION
PRAECIPE FOR WRIT OF EXECUTION
Caption: ? X ) Confessed Judgment
FINOVA Capital Corporation ( )Other
111 West 40th Street, 14th Floor
New York, NY 10018 File No. 99-6148 Civil
VS.
IF Services Ltd., t/a Rohrer Stromboli
1302 Slate Hill Road
Camp Hill, PA 17011, Dft.
and
Donald Slike
100 East Lau r La
f6%1E046TH Oil, aF T A b'MURT:
Amount Due $753.421.50
Interest *
*from to ay
Atty's Comm
Costs
The undersigned hereby certifies that the below does not arise out of a retail installment sale, contract, or
account based on a confession of judgment, but if it does, it is based on the appropriate original proceeding filed
pursuant to Act 7 of 1966 as amended; and for real property pursuant to Act 6 of 1974 as amended.
Issue writ of execution in the above matter to the Sheriff of
for debt, Interest and costs, upon the following described property of the defendant(s)
County,
PRAECIPE FOR ATTACHMENT EXECUTION
Issue writ of attachment to the Sheriff of-_Cumberland County, for debt, Interest and
costs, as above, directing attachment against the above named garnishee(s) for the following property (If real
estate, supply six copies of the description: supply four copies of lengthy personalty list)
See list of personalty attached as Exhibit A.
and all other property of the defendant(s) in the possession, custody or control of the said garnishee(s).
(Indicate) Index this writ against the garnishee(s) as a lis pendens against real estate of the
defendant(s) described in the attached exhibit.
Date '1 /24 /nn Signature:
Print Name: _Rpger P. Cameron
b rm$yy r Rebmann Maxwell b Hippel LLP q
Adgrels: 16 7 J.F.1i?Alvd.. Qne Penn_CS?&,1Mli:
Philadelphia, VA 19103-1895
Attorney for: Plaintiff
Telephone: (?1g) 665-1244
Supreme Court ID No.: 53251
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EXHMT A
All of f ?? ,2J c i S aTJ• S I nowAnts (whether or not corned by pclatreramoal pcxsds
"A all *,her
otany lettm of t redit /r%SBn?nc rs u banetiawy, oomtnit rights. chattsl papa. Instum cc u, alu'm'
forms of obligations at any tiros owing 20MMAIKA all purarAcs and odhcr ucuritY therefor. whether aecaned or
uniauted, all mishandles shamed eo or repossessed by/FSrR??t stand oU rights of aoppabs in transit and all otter rights
of remedies of an uape(d vendor. Manor of secured party (collaotively. "Receivables').
All of IF SFQviees'4.7D.'t goods.. merchandise atothapersonal property. wherever
located. In be furnished under any oontraet of ¦ rywe or held for sale or lase. all raw materials, work in process. finished
goods and tnoseriale and ampplisa of any khtd. nuvm or description which see or might be used or cotsumcd to ;-vs i
business or mud (nemmecdon wish the tranufeaum packing. shipping, advamsinb. selling or llnishlnp of tuck ceods.
merchandise or other penoaal property. and all documents of tide at other documents teptao sing them (callesdvoly.
"Invmroey? • •
AU or It- $5 ER ? i c CS t 7-4. 13 machinery, molds. machine tools, motors, lUmicars. qu(pmcot.
fee. patucs, trade raMres, motor rc hialas, toola, parts, dye, jigs. floods and other tangible p al ?yRep ??
(otter than favi troy) of every kind and description used In 'Its • operation or owned by it-
in say of the foregoing, std all anaehmeats, aesasset(a. aeseseiona, roplaccmrau, abstitudana. additions or
jmpstevermmts m any of the foregoing, wherever located.
All getstal intsnQlbles of iPWO /dg{whatrarv ow owned or herasfter creanad or acquired by Borrower. aeounn.
including. without limitation. all chow In action, smuts of actsm, corporate or other busuWAS records, deposit
inventions, designs, drawings. blueprints, aedemorks. Uceaacs and patinas. tames. uada seem, goodwill, eogyritlss.
aril `enw@ct
roglstradoae, licenses, franchises, castmmer lists, security and other depasits, rights Inauli new ion presently or
pending for any maw or claim (whether in contract. ton or otherwise), and af(judgn u a a licensor
oh Uccose ' I r S 6R ? r FSI--T4. e numbersp proprietary infatroadess. purchase ooridea. ar a W. I rins urance policies
and or dcaclaim nw (Including say kind, without rarities. i Pn credit. and odncr (aaaanac) tax reRmds and clalms, compute
prograesueiry Imsrsu or other security hold by of gaud to
proposes, res, tirsses, , spas pa and ope nice. le e. claims under gtoaraadve, ss, s liability, rAus ul Y
to scam payment of any of the Receivables by on assents debtor, all rights m indemnification and off other
intangible property of every kind and mace (other than Receivables). ;any
en AU investment property and money of / F .SCR, n c B possession e-r.udlnL claims too credit beiamoes), and all
d sU property now or at any time henaftw In ,t S proewda (Including proceeds of any inuuronae polio s. proceeds of proceeds and claims against third pards). all products
and all books and records related to any of the foregoing.
d ova . not include the cooler villa and compressors
fro vert'd-
owned by Landlord which existed in the
OBERMAYER REBMANN MAXWELL & HIPPEL LLP
By: Roger P. Cameron, Esquire
Identification No. 53251
1617 John F. Kennedy Boulevard, 19th Floor
Philadelphia, PA 19103-1895
(215) 665-3000
Attorneys for Plaintiff
Plaintiff,
CUMBERLAND COUNTY
VS.
IF SERVICES LTD., t/a
ROHRER STROMBOLI,
Defendant,
and
DONALD SLIKE,
COURT OF COMMON PLEAS
CIVIL ACTION - LAW
No. 99-6148 CIVIL
Garnishee.
CERTIFICATION
I certify that
(a) This praecipe is based upon a judgment entered by confession, and
(b) Notice has been served pursuant to Rule 2958.1 on December 13, 1999, at least
thirty days prior to the filing of this praecipe, as evidence by a return of service
filed of record in this matter on February 11, 2000.
Respectfully submitted,
Dated:
OBERMAYER REBMANN MAXWELL & HIPPEL LLP
3/.t/uti By: CJ ?` ??"~
Roger P. Cameron, Esquire
Attomeys for Plaintiff
244760
OBERMAYER REBMANN MAXWELL & HIPPEL LLP
By: Roger P. Cameron, Esquire
Identification No. 53251
1617 John F. Kennedy Boulevard, 19th Floor
Philadelphia, PA 19103-1895
(215) 665-3000
Attorneys for Plaintiff
Plaintiff,
vs.
IF SERVICES LTD., t/a
ROHRER STROMBOLI,
Defendant.
COURT OF COMMON PLEAS
CUMBERLAND COUNTY
CIVIL ACTION - LAW
No. 99-6148 CIVIL
PRAECIPE FOR WRIT OF EXECUTION
UPON A CONFESSED JUDGMENT
To the Prothonotary:
Kindly issue a Writ of Execution upon ajudgment entered by confession in the above
matter,
(1)
(2)
(3)
(4)
(5)
directed to the Sheriff of Cumberland County;
against IF Services Ltd. t/a Rohrer Stromboli, defendant; and
against Donald Slikc, as garnishee;
and index this Writ
(a)
(b) against
defendant and
as garnishee,
as a lis pcndens against real property of the defendant in the name of gamishec as
follows:
Amount due
$753,421.61
2"337
Interest from 10/7/99 at 6% per annum $ 20,806.80
($123.85/per diem)
Costs to be added $
CERTIFICATION
I certify that
(a) This praecipe is based upon a judgment entered by confession, and
(b) Notice has been served pursuant to Rule 2958.1 on December 13, 1999, at least
thirty days prior to the filing of this praecipe, as evidence by a return of service
filed of record in this matter on February 11, 2000.
Respectfully submitted,
OBERMAYER REBMANN MAXWELL & HIPPEL LLP
Dated: 3?? °T (1?' o
By'
Roger P. Ca on, Esquire
Attorneys for Plaintiff
244337 2
R. Thomas Kline, Sheriff, who being duly sworn according
to law, states this writ is returned STAYED per instructions from
Attorney Camero n.
Sheriff's Costs : Advance Costs: $150.00
Docketing $18.00 Sheriff's Costs: 67.26
Poundage 1.32 $ 82.74
Law Library .50
Prothonotary 1.00
Service 7.44
Garnishee 9.00 Refund to atty on 6-14-00
Surcharge 10.00
Levy 20.00
$67.26
So?fDgw?fa: ??
R. Thomas Kline, Sheriff
Sworn and subsc ribed to before me
This .24A* day of
2000, A.D.
?iProthonot r
BY
put Sheriff
0
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1
P
7
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nC*t .2 pV0
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WRIT OF EXECUTION and/or ATTACHMENT
COMMONWEALTH OF PENNSYLVANIA) NO. 99-6148 Civil g)gp;7py TERM
COUNTY OF CUMBERLAND) CIVIL ACTION - LAW
TO THE SHERIFF OF Ctmix>rl arxl COUNTY:
To satisfy the debt, interest and costs due FINOVA Capital Corporation 111 West 40th Street
14th Floor, New York, N. Y. 10018 PLAINTIFF(S)
frbtfi Services, Ltd., t/a/ Rohrer Stromboli 1302 Slate Hill Road Camp Hill Pa 17011
-DEFENDANT(S)
(1) You are directed to levy upon the property of the defendant(s) and to sell
(2) You are also directed to attach the property of the defendant(s) not levied upon in the possession of
Donald Slike 100 East Lauer Lane Clmp Hill, Pa. 17011
GARNISHEE(S) as follows:
See list of personal attached as Exhibit A
and to notify the gamishee(s) that: (a) an attachment has been issued; (b) the garnishee(s) is/are enjoined from paying any
debt to or for the account of the defendant(s) and from delivering any property of the defendant(s) or otherwise disposing
thereof;
(3) Ilpropertyofthedelendant(s)notlevfeduponansubjectioattachment isfoundInthepossession ofanyoneother
than a named gamishee, you are directed to notify hinvher that he/she has been added as agarnishee and is enjoined as above
stated.
Amount Due g ? L.L. _ $0.50
10/07/99 to @$ ay
Interest 70.910-65 Due Prothy, 1.00
Any's Comm
Ally Paid 32.50
Plaintiff Paid
Date: March 27, 2000
REOU8§eTI ?rR%brnann, Maxell & Hippel LLP
Name -Roger P. Cameron, Fsg.
Other Costs
Curtis R. Long
Prothonotary, Civil Division
by: ?,crc? L?. /Ni?QCL
Deputy
Address: 1617 J. F. K. Blvd One Penn Center, 19th Floor
Attorney for: Plaintiff
Telephone: (2151 665-3244
Supreme Court ID No. 53251
I