HomeMy WebLinkAbout01-6183WAYPO1NT BANK,
Plaintiff
DOVER GF, LP,
Defendant
: IN THE COURT OF COMMON PLEAS
: OF CUMBERLAND COUNTY, PENNSYLVANIA
NO.
JURY TRIAL DEMANDED
NOTICE
YOU HAVE BEEN SUED IN COURT. If you wish to defend against the claims
set forth in the following pages, you must take action within twenty (20) days after this Complaint
and Notice are served, by entering a written appearance personally or by attorney and filing in
writing with the Court your defenses or objections to the claims set forth against you. You are
warned that if you fail to do so the case may proceed without you and a judgment may be entered
against you by the Court without further notice for any money claimed in the Complaint or for any
other claim or relief requested by the Plaintiff. You may lose money or property or other fights
important to you.
YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU
DO NOT HAVE A LAWYER OR CANNOT AFFORD ONE, GO TO OR TELEPHONE THE
OFFICE SET FORTH BELOW TO FiND OUT WHERE YOU CAN GET LEGAL HELP.
CUMBERLAND COUNTY BAR ASSOCIATION
2 Liberty Avenue
Carlisle, PA 17013
1-800-990-91
Michael W. Winfield, Esquire
Attorney I.D. No. 72680
RHOADS & SINON LLP
One South Market Square, 12th Floor
P.O. Box 1146
Harrisburg, PA 17108-1146
(717) 233-5731
Attorneys for Plaintiff
WAYPOINT BANK,
Plaintiff
DOVER GF, LP,
Defendant
: IN THE COURT OF COMMON PLEAS
: OF CUMBERLAND COUNTY, PENNSYLVANIA
: CIVIL ACTION - LAW
: NO. -
: JURY TRIAL DEMANDED
COMPLAINT
NOW COMES, Plaintiff, Waypoint Bank, by and through its attomeys, Rhoads &
Sinon LLP, and hereby avers the following:
1. Plaintiff is Waypoint Bank ("Waypoint"), a federal savings bank and
successor to York Federal Savings & Loan Association, with a principal place of business
located at 235 North Second Street, Harrisburg, Dauphin County, Pennsylvania.
2. Dover GF, LP ("Dover"), upon information and belief, is a limited
partnership organized and existing under the laws of the Commonwealth of Pennsylvania with a
principal place of business at 1000 North Front Street, Suite 500, Wormleysburg, Cumberland
County, Pennsylvania.
3. On or about November 28, 2000, Defendant entered into a Standard Form
of Agreement between Owner and Contractor ("Dover/Ziegler Agreement") with Bryan A.
400132.1
Ziegler Excavating & Paving, Inc. ("Ziegler") for site work related to the construction of a new
Giant Food store and retail shops in Dover, Pennsylvania (the "Project"). A tree and correct
copy of the Dover/Ziegler Agreement is attached hereto as Exhibit "A".
4. Pursuant to the terms of the Dover/Ziegler Agreement, Ziegler was to
receive payment in the amount of $1,340,000, in the form of monthly progress payments based
upon a schedule of values submitted by Ziegler, which allocated the entire contract stun among
the various portions of the work to be performed.
5. On or about April 7, 2000, Waypoint executed an agreement with Ziegler
pursuant to which Waypoint purchased, and Ziegler assigned, among other things, certain of
Ziegler's accounts receivables for the Project ("Waypoint/Ziegler Agreement"). A tree and
correct copy of the Waypoint/Ziegler Agreement is attached hereto as Exhibit "B'. A true and
correct copy of the list of accounts receivables for the Project purchased by Waypoint from
Ziegler is attached hereto as Exhibit "C".
6. As Owner of the accounts receivable for the Project, Waypoint has the
same rights and remedies against Dover vis-h-vis the accounts receivables as Ziegler had.
7. Upon information and belief, Ziegler defaulted under the terms of its
contract with Dover, and abandoned the Project.
8. Upon information and belief, at the time Ziegler defaulted on its conlxact
with Dover, Ziegler had performed work amounting to $506,690, and had submitted applications
for payment to Dover for said amount.
-2-
9. Upon information and belief, Ziegler was paid only $96,219 by Dover for
the work performed under its contract, notwithstanding that it performed work and submitted
applications for payment amounting to $506,690.
10. Under the terms of the WaypointJZiegler Agreement, Waypoint
purchased, and Ziegler assigned, $334,802.60 of the $506,690 in receivables for the Project.
11. On or about March 23, 2001, Waypoint notified Dover through its Project
Representative of Waypoint's rights to collect upon Ziegler's accounts receivables, and
demanded paymem of the $334,802.60 stun.
12. Notwithstanding Waypoint's demand, Dover has refused to make any
payment to Waypoint.
13. Although Dover has asserted to Waypoint that it maintains defenses to
payment, it has refused to provide documentation to support that any such defenses exist,
although Waypoint has requested same.
COUNT I - BREACH OF CONTRACT
14. Paragraphs 1 through 13 are incorporated herein by reference as if set
forth here at length.
15. As Owner of Ziegler's accounts receivables on the Project, and assignee of
Ziegler's rights created therein, Waypoint has the same enforcement rights against Dover as
Ziegler would other, vise have.
-3-
16. Dover's failure and refusal to make payment to Waypoint of the amounts
due and owing on the accounts receivables constitutes a breach of contract for which Dover is
liable to Waypoint.
WHEREFORE, Waypoint demands judgment against Dover GF, LP in the
amount of $334,802.60, along with interest, costs of suit, and such other relief as deemed
reasonable and appropriate by this Court.
COUNT II - ACTION FOR PENALTIES, INTEREST AND ATTORNEYS
FEES PURSUANT TO THE CONTRACTOR/SUBCONTRACTOR
PAYMENT ACT
17. Paragraphs 1 through 16 are incorporated herein by reference as if set
forth here at length.
18. In failing to remit payment to Waypoint after notice of the sale and
assignment of accounts receivables to Waypoint, Dover failed to comply with the payment
provisions set forth in its contract with Ziegler.
19. Pursuant to Section 12 of the Contractor/Subcontractor Payment Act, 73
P.S. §512, a contractor is entitled to an award of penalties, interest and attorneys fees for all
amounts wrongfully withheld from payment by an Owner.
20. Upon information and belief, Dover has wrongfully withheld payment of
the amounts owed on the accounts receivables owned by Waypoint.
-4-
21. Waypoint, as Owner of the accounts receivables and assignee of Ziegler's
rights, is entitled to pursue against Dover the remedies afforded by the Contractor/Subcontractor
Payment Act.
22. Waypoint is entitled to interest at 1% per month, penalties at 1% per
month, and attorneys fees as a result of Dover's actions in failing to remit payment.
WHEREFORE, Waypoint demands judgment against Dover GF, LP in the
amount of $334,802.60, along with interest, costs of suit, attorneys fees, and penalties, as
provided by the Contractor/Subcontractor Payment Act, and such other costs as deemed
reasonable and appropriate by this Court.
Respectfully sul ai~ed,
B . Michael ~V. Winfield
One Soutl~ Market Square
P. O. Box 1~46
Harrisburg, 1~17108-1146
(717) 233-5731
Attorneys for Plaintiff
VERIFICATION
David E. Zuem, deposes and says, subject to the penalties of 18 Pa. C.S. §4904
relating to unswom falsification to authorities, that he is the President of Waypoint Bank, that he
makes this verification by its authority and that the facts set forth in the Complaint are tree and
correct to the best of his knowledge, information~ e .,~/'~
Date: //)/~t~/
/ / Dav)'d E. Zuem,~esident
AIA Doctln~ A101/Cma
Standard Form of Agreement
Between Owner and Contractor
~,here r~ basis of paTmen~ is a STI?UI.~TED S~
1992 CONSTRUC"nON MANAGER-ADVISER EDITION
THIS DOCUMENT HAS IMPORTANT LEGAL CONSEQUENCES; CONSULTATION WITH AN
ATTORNEY JS ENCOURAGED WITH RESPECT TO ITS COMPLETION OR MODIFICATION.
The 1992 Editiott Of AlA Document A.201/Cma, Ge~eml Conditions of ~ ~ for Cott. sttt/4~, ~ Manager-~i~i~er
Edl#on, is a ted in ~is Eocument reference. Do not ..~
· usew~nother c°ncl#/o~sunfesathisdocumentismodfffed.
AGREEMENT ~
made as of the Twenty Eight day of
On ~s, ~ Cay, mmut a,~ See,..) TWO Thousand
BETWEEN the Owner
and the Contractor:
November
DOVER GF, LP
1000 NORTH FRONT STREET
SUITE 500
WORMLEYSBURG, PA 17043
in the year of
For the following Project:
(Include ~e~e~ descript/o~ ~ Project, location, ad~ress
BRYAN A. ZIEGLER EXCAVATING & PAVING, INC.
R.R#3 BOX 362
PALMYRA, PA 17078-9731
The Construction Manager is:
NEW GIANT FOOD STORE #306
& RETAIL SHOPS
(DOVER MARKETPLACE)
PA ROUTE 74 & PALAMINO ROAD
DOVER, PA
DENNIS J. SCHMIDT
GENERAL CONTRACTOR, INC.
1000 NORTH FRONT STREET, STE. 500
WORMLEYSBURG, PA 17043
The The Engineer is: R.J.FISHER & ASSOCIATES, INC.
(~me~) 1546 BRIDGE STREET
NEW CUMBERLAND, PA 17043
The Owner and Contractor a ree as set forl~ below,
C~ 1975, 19~0, 1g~2 byT~e Ame~c~n Ins~ute of'"
AIA DOCUMENT A101/CMa · OWNER-CONTRACTOR AGREEMENT, CONSTRUCTION
MANAGER-ADVISER EDITION · AIA · 1992 * THE AMERICAN INSTITUTE OF ARCHITECTs,
1735 NEW YORK AVENUE, N.W. WASHINGTON, DC. 20006-5292 · WARNINQ: Urdk~n~e~
phot(x:c~yfng violat~ U.S, Copyright law~ and Will ~ubJect the violator to legal
pro~uflon.
A101/CMa-1992 I
THE CONTRACT DOCUMENT8
integrated agreement between the pe~dss hereto and prior negotiations, mprssentations or agreements, either w~tten
or oral. An enumeration of the Contract Documents, other than Modifications, apeears in Arti~e ii.
THE WORK OF THIS CONTRACT
The Contract shall execute the entire Work dsscdbed in the Contract Documents, except to the extef~t specifically indicated in the
Contract Documents to be the resp<melbility of others, ores follows:
ALL WORK IS SPECIFIED IN PLANS PREPARED BY R.J. FISHER & ASSOCIATES, INC.
PERTAINING TO SITE DEMOLITION, EROSION CONTROL, BULK EXCAVATION AND
FILL, STORM SEWER, SANITARY SEWER, WATER SERVICES, CONCRETE CURBING,
CONCRETE WALKS AND ISLANDS, WIDENING OF ROADS, RAINWATER COLLECTION
SYSTEM, ELECTRIC TRENSCHING, BITUMINIOUS PAVING, LINE PAINTING, SIGNAGE,
BOLLARDS, TRAFFIC SIGNAL, S/TE LAYOUT, ALL PENN DOT WORK, FINE GRADING
AND SEEDING, AND ALL LANDSCAPING.
DATE OF COMMENCEMENT AND SUBSTANTIAL COMPLETION'
3.1 The date of COmmencement is the date from which the Contract T~me of Paragraph 3.2 is measured, and shell be the date of
this Agreement, as first written above, unless a d;fferent date is stated below or provision is made for the date to be fixed in a notice
to proceed issued by the Owner.
WITHIN TEN (10) DAYS OF THE NOTICE TO PROCEED AS ISSUED BY THE OWNER AND AS SOON AS
PERMITS ARE OBTAINED.
Unless the date of commencement is established by a notice to proceed issued by the Owner, the Contractor shall notify the Owner,
through the Construction Manager, in wdting not less than five days before commencing the Work to permit the timely filing of
mortgages, mechanic's liens and other security interests.
3.2 The Contractor shall achieve Substantial Completion of the entire Work not later than
TWO HUNDRED FORTY (240) CALENDAR DAYS.
,subject to adjustments of this Contract Time as provided in the Contract Documents.
(Inse'ff Pr°v~ ff anY, [Or liqui~ate~ ;~mages mlati~g to faiiu~ to cot~Dl~ on ~.)
AIA DOCUMENT A101/CMa · OWNER-CONTRACTOR AGREEMENT, CONSTRUCTION
MANAGER-ADVISER EDiTION ° AIA ° 1992 · THE AMERICAN INSTITUTE OF ARCHITECTS,
1735 NEW YORK AVENUE, N.W. WASHINGTON, DC. 20006-5292 · WARNING: Unllcen.~l
photocopying viola*-- U.S. Copydght ~ in'* Mil ~ubJect Ute vlolltor to legal
A101/CM-,.1992 2
4J Unit price~, if ~ny, ~re ~m fc~lows:
A. ~CAVATION ~D REMOV~ ~ UNSUff~ ~
B. RIPPED BU~ R~K ~CAVATION
C. B~S~D BU~ R~K ~CAVA~ON
D. RIPP~ ~ENCH R~K ~CAVA~
E. B~8~ TRENCH R~K ~CAVATION
F. IMbeD SU~ BAC~I~
G. REMOVE SPI~GE BY O~ERS
H. REMOVAL FROM ~E SI~ OF ~CESS RL
· $ 28 PER C.Y
$14 PER O.Y.
$ 34 PER C.Y.
$18 PER C,Y.
$ 46 PER C.Y.
$ 22 PER C.Y.
$6.80 PER C.Y.
$6.8O PER C.Y.
AJA DOCUMENT A101/CMa · OWNER-CONTRACTOR AGREE)~NT, CONSTRUCTION
,~.,,~.~ :o.~,?_.~ ,?. w~,,~, ~ ~,..~__. w....,~: u...--.
A101~1~ 3
5.1 Based upo~ APPticetion~ f°r PaYn~mt submfttad by ~e Contm~or to tha C(~.tn~n ~, and ulx~ Project Ap~ce~
and CmlJficates for Payment issued by t~e Co.-~ru~ion Manager and An~itsc~ ~ Owner shall make progreas payments on
account of the Contract Sum to tyro Contmofor as provided below and elsewhere the Co~raof Documents.
5.2 The pednd covered by each Application for Payment shall be one calendar month ending on the last day of the month, or as
follows:
Provided an Application for Payment ~s submitted to the Construction Manager not later than the 25TH
daY °f a rn°nth, the Owner shall make paymont to the Contrastor not latar than the 30TH day o f the following month. If
an Application for Payment la received by the Constmctien Manager after the application date fixed above, payment shall be made
by the Owner not later than THIRTY (30) days after the Construction Manager receives the Application for Payment.
5.4 Each Application for Payment shall be based upon the Schedule of Values submitted by the Contractor in accordance with the
Contract Documents. The Schedule of Values shall allocate the entire Contract Sum among the various portions of the Work and be
prepared in such form and supported by such data to substantiate its accuracy as the Conatmcfion Manager or Architect may
require. This schedule, unless objected to ' ·
Contractor's Applications for Payment. by the Construction Manager or Amhitsct, shall be used aa a basis for reviewing the
5.5 Applicetiona for Payment shall indicate the paruentsge of cornplefion of each po~on of the Work as of the end of the period
covered by the Application for Payment.
5.6 Subject to the pmvialons of the Contract Documents, the amount of each progreas payment shall be computed as follows:
5.6.1 Take that portion of the Contract Sum properly allocable to completed Work as determined by multiplying the percentage
completion of each portion of the Work by the share of the total Contract Sum allocated to that portion of the Work in the Schedule
of Values, less retainage of TEN percent ( 10 %). Pending final determination of cost to the Owner of
changes in the Work, amounts not in dispute may be included as provided in .Subparagraph 7.3.7 of the General Conditions;
5.6.2 Add that portion of the Contract Sum properly allocable to materials and equipment delivered and suitably stored at the site for
subsequent incorporation in the completed constmcfion (or, if approved in advance by the Owner, suitably stored off tha site at a
location agreed upon in writing), less retainage of TEN pement ( 10+A147 %);
5.6.3 Subtract the aggregate of previous payments made by the Owner, and
5.6.4 Subtract amounts, if any, for which the Construction Manager or Architect has withheld or nullified a Certificate for Payment
as provided in paragraph 9.5 of the General conditions.
5.7 The progress payment amount determined in accordance with Paragraph 5.6 shall be further mod;fled under the following
circumstances:
5.7.1 Add, upon Substantial completion of the Work, a sum sufficient to increase the total payments to NINETY-FIVE
percent ( 95 %) of the Contract Sum, lees such amounts as the Construction Manager recommends and the Architect determines
for incomplete Work and unsettled claims; and
5.7.2 Add, if final completion of the Work is thereafter mater~aliy delayed through no fault of the Contractor, any additional amounts
payable in accordance with Subparagraph 9.10.3 of the General Conditions.
5.8 Reduction or limitafion of retainage, if any, shall be as follows:
RETAINAGE WILL BE REDUCED TO FIVE PERCENT (5%) WHEN TO PROJECT IS FIFTY
.PERCENT (50%) COMPLETED.
AI~ DOCUMENT A101/CMa · OWNER-CONTRACTOR AGREEMENT, CONSTRUCTION
photocopying vlolata~ U.S. Copyright lat,m and will ~ubJ~t Ute vtolstor to legal
A101/CMa-1992 4
Final payment' c°n~ the entire unpald baisnce of the Contract Sum, shall be ma~ ~ ~ ~r ~ ~ ~or ~ (I)
· e Contract has been fully Pel~ommcl by the Contractor except for the Contractor's re~norMdbl'lJty to correct nonocnforming Wort< ~
provided in Subparagraph 12.2.2 of the General Conditions and to satisfy other requirements, if any, which rl~.~Martiy suwive final
paymem; and (2) a final Project Certificate for Payment has been issued by the Construc~on Manager and Architect; such final
.~..yment shall be made the Owner not more than 30 days after the issuance
~ollows: .. of the final Project Certificate for Payment, or as
MISCELLANEOUS PROVISION8
7.1
Where reference ~s made n this Agreement to a provision of the General Conditions or another Contract DOCUment, the
reference mfem to that provision as amended or supplemented by other provisions of the Contract Documents.
7.2 Payments due and unpaid under the Contract shall bear interest from the date payment is due at the rate stated below, or in the
absence thereof, at the legal rate prevailing from time to time at the place where the Project is located.
(Inse~t mte ol intere~ agm~l ul~n, if any)
7.3 Temporary Facilities and aewices:
7.4 Other Provisions:
(He*'e l~t any special provJsk~ns affeci~g the Conb~c~)
AIA DOCUMENT A101/CMa * OWNER-CONTRACTOR AGREEMENT, CONSTRUCTION
MANAGER-ADVISER EDITION * AIA ' 1992 * THE AMERICAN INSTIT~JTE OF ARCHITECTS,
1735 NEW YORK AVENUE. N.W. WASHINGTON, DC. 2~0~6-5292 ° WARNING: UnJie~t~
A101/CMa-1992 5
TERMINATION OR BUSP~
8.1 The Contract may be terminated by ~e Owner or the Contractor as provided in Artiofe 14 of the General Conditions.
8.2 The Wor~ must be suspended by the Owner as provided in At~cte 14 of the General Conditions.
ENUMERATION OF CONTRACT DOCUMENTS
9.1 The Contract Documents, except for Modifications issued after execution of this Agreement, are enumera;ed as follows:
9.1.1 The Agreement is this executed Standard Form of Agreement Between Owner and Contractor, AIA Document AI01/CMa,
1992 Construction Manager-Adviser Edition.
9.1.2 .The General Conditions are the GeceraJ Conditions of the Contract for Construction, AJA Document A101/CMa. 1997
Construction Manager-Adviser Edition. GIANT FOOD STORE EDITION DATED 3/15/1999
9.1.3 The Supplementary and other Conditions of the Contract are ~nse contained in the Project Manual dated August 2, 2000 , and are as follows:
Document
Title Pages
9.1.4 The Specifications are those contained in the Project Manual dated as in Subparagraph 9.1.3, and are as follows:
02151
02220
02221
02630
Title
SHORING
STRUCTURAL EXCAVATION,
BACKFILL AND COMPACTION
TRENCHING BACKFILLING AND
COMPACTING
CONCRETE WALKS, CURBS AND
RAMPS
Page8
02151-1 THRU 02151-2
02221-1 THRU 02220-8
02221-1 THRU 02PP1-10
02630-1 THRU 02630-4
AIA DOCUMENT A101/CMa · OWNER-CONTRACTOR AC~-"~'_.-q;ENT, CONSTRUCTION
MANAGER-ADVISER EDITION * AIA · 1992 · THE AMERICAN INSTITUTE OF ARCHITECTS,
1735 NEW YORK A~ENUE, N.W. WASHINGTON, DC, 20(X)6-5292 · WARNING: Un~enm~cI
~_~_ _ _~uflo~nn. g vtol~ U.S. Copyright I...nd will mJl~est the violator Io legal
A101/CMa-1992 6
g.l~ The Dmv~ng~ are ~m foffow~ and em dated
Number Title
1 COVER SHEET Date
2 EXISTING CONDITIONS GRIG REVISED
3 FINAL LAND DEVELOPMENT 11/9/99 8/18/00
4 EASEMENT PLAN 11/9/99 8/18/00
5 GRADING & LANDSCAPING PLAN 11/9/99 8/18/00
6 EROSION CONTROL PLAN 11/9/99 8/18/00
7 SANITARY PLAN 11/9/99 8/18/00
8 SANITARY PROFILES 11/9/99 8/18/00
9 STORM SEWER 11/9/99 6/12/00
11/9/99 6/12/00
10 PALOMINO RD. PROFILE & STORM SEWER 11/9/99 6/18/00
11 & 12 MISCELLAENOUS DETAILS 11/9/99 6/18/00
13 EROSION CONTROL DETAILS 11/9/99 6/12/00
14 PALOMINO ROAD IMPROVEMENTS 12/30/99 6/18/00
I thru 8 HIGHWAY GCC. PLAN
RE-5 SITE LIGHTING 6/18/00
2 Of 2 PALOMINO AND CARLISLE ROAD 5/11/00 6/28/00
9.1.6 The Addenda, if any, are as follows:
oa~e
Number
Pages
Portions of Addenda relating to bidding requirements am not part of the Contract Documents unless the bidding
requirements are also enumerated in this Article 9.
AIA DOCUMENT AIO1/CMa · OWNER-CONTRACTOR AGREEMENT, CONSTRUCTION
MANAGER-ADVISER EDITION "AIA ° 1992 · THE AMERICAN INSTITUTE OF ARCHITECTS,
1735 NEW YORK AVENUE, N.W. WASHINGTON, DC. 20008-5292 * WARNING: Uollcens~l
A101/CMa.1992 7
.1.7 I~r d°cument~, If anY, fo~nlng pa~ of Ih® Contm~ Documen.m are as fo#owl:
BRYAN A. ZEIGLER EXCAVATING AND PAVING, INC'S, SEPTEMBER 13, 2000 RID FORM
AND AUGUST 7, 2000 QUOTATION LE
This Agreement is
copies of which entered into as of the day and year first written above and is executed in at least four original
one is to be delivered to the Contractor, one each to the Construction Manager and Architect for
use in the administration of the Contract, and the remainder to the Owner.
OWNER CONTRACTOR
Bryan A. Z~.eoler, Presiden,~
for Reproductio~ of this document -,~,,,,~-~ ,,,e repn~uced. See Instruction Sheet for Limited License
AIA DOCUMENT A101./CMa * OWNER-CONTRACTOR AGREEMENT, CONSTRUCTION
MANAGER-ADVISER EDmON * AIA ° 1992 * THE AMERICAN INSTITUTE OF ARCHITECTS,
1735 NEW YORK AVENUE, N.W. WASHINGTON, DC. 20006-5292 * WARNING: Unll~eneed
A101/CMa-1992 8
BUSI1VESS[ A AGI EMENT
WITH BUSIIFESSE5 AND PROI;~SIONALS
TO: York Federal Savin~ and Loan Association
101 South Oeor~e Street, P. O. Box 15068
York. PA 17405-7068
(~ "B~9
FROM: Bryan A. Ziegler Excavating
& Paving, Inc.
134 Bell Road
Palmyra, PA 17075
(the "Business")
This Agreement is entered into by and between the Bank and the Bu~ess to govern the sale of
Receivables, as defined below, by the Business to the Bank. The Business agrees to the
following te~-~ according to which, when accepted by the B~,~lr, the Business will receive
payment for Receivables arising fi.om sales or services ~o Customer~ and purchased by the Bank
pursuant to the B ,,v's BUSllVESSIM. N ,I G£R plan.
SECTION 1: DF_~INITIONS
1,1 "Credit Applicalton and A~reemenV' means a Credit Applioalion and Asresment
executed by a Customer and any other agreement or documentation that governs h~e terms and disclosures
relal~ng to a Receivable.
1.2 "Credit Memo" means a foi,n reflecting a credit, other than a credit arising from a
payment, to a Customer's account with the Business.
1.3 "Customer" means a debtor obligated on one or more Receivables which arose fi.om
goods the Business sold or services it rendered to the Customer.
1.4 "Face Amount" of a l~ceivable means on any date thc ouu~anding balance of such
Receivable (after talcing into account, without duplication, all payments, returns, credits, or allowances of
any nature at a~y time issued, owing, ,~tcd or ou~tanding), plus any taxes imposed m connection with
such Receivable.
1.$ "..Invoice" means an invoice or similar emclenc¢ (whether m writum or clcctromc form)
of the terms of a non-cash sale of goods or provision of services previously made by the Business to a
Customer.
1.6
"iNet Amount" ora P, cceivable means ~ Face Amount ora Receivable less the Service
1.7 "Obligations" means all of the lausiness's obligations to the Bank, whether pursuant to
this Agreement, under any note, contract, guaranty, accommodation or otherwise however and whenever
created, arising or evidenced, whether direct or indirect, absolute or contingent, now or hereafter existing
or due.
1.8 "Receivables" means all accounts, imstr~m~ents, contract rights, chattel paper.
docum~u, and ganeral intangibles arising fi.om thc Business's sale of goods or rendering of services, and
the proceeds thereof, and all security and gum'anties therefore, whether now exisiing or hereafter c:eated,
that are accelXed by the Bazgc for pur~hsse hereunder in the Banlds sole arid absolute discretion.
1,9 "Repurchase Obllgalion" m~ans thc liability of the Business to thc Bank unticr this
Agroement ill an arrioucl! equal on ~ date to the ~ce Amount of Receivables on that date,
plus attorneys' fces (if incurred) and accrued and unpaid finance charges related to such Receivables.
1.I0 "Reserve" means funds of the Basmess used to provide for the funding of the
Business's Repurchase Obligation. "Reserve Account" ~leans the deposi! accotm! of the Business
containing thc Reserve established pursuant to Section 2.5 of this Agreement
IAI "Service Charge" means a discount equal to three sad 00/100 peresnt (3.00%) of the
Face Amount of each Receivable thc Business tenders to the Baz~ that is acquired by thc B~,,t- The
Business acknowledges ~hat h~e Service Charge is a discount for value and in no even! col~itutes interest
or a similar charge and that the tra~ctions contemplated under this Agrecment are not Iransactions fc~
thc usc, forbearancc or detention of money. The Service Charge has been agreed upon by the panics as
representing a re. enable and customary fair m~ket value discount
SECTION 2: S~Lr~ PURCHASE PRICEi BH.l.r~G; ]~..~_.RVF,
2.1 Asst~ment sad Sale. The Bank hereby pur~-h,,,e.s from the Business mol the Bt~iness
hereby assigns and selLs to the B~le u absolute owner, the Business's entire int.-est in such of its
currently outstanding Receivables as are described on attached Exhibit 2.1, as well as its future
Receivables tq.~ented by Invoices it delivers to the Bank; provided, however, that at no time shall the
iolal outstanding Face Amount of Receivables purchased by the Bank exceed $2,00n,000.00 unless
agreed to by the Bank. The Business and the Bank agree that: (a) the Business will submit to the Bank all
Invoices representing receivables arising from all sales of goods or provisions of services to Customers
for the Bergs determination of accep~abilffy as Receivables; Co) the transactio-,s conlamplated by this
Agreement are account purchase transactions; (¢) thc Receivables arc being purchased by the Baulc from
)he Business at a di~coung (d) the pus'chase and sale of the P..eceivables vests absolute right, title and
ownership of such Receivables, ~ogether with ali incidents and benefits thcrcof inc),,ti,~g servicing fights
and rights to verify Receivables witll Cklstomers, in the Bank; and (c) the Business has no righ~ to
reacquire, redeem or otha'wise obtain title to the Receivables or any proceeds thereof. The Business
further sells and assigns to the Bank all of the Business's fights a.s an unpaid vendor, lienor, or lienholder,
all of its related rights of stoppage in h-armit, replevin and reclamation and rights against th/rd parlies (all
of which shall ccastkute part of the Receivables), and agrees to cooperate with the Bn,~¥ in its exercise of
these rights. Thc Business and the Bank agree to execute and deliver such further insu'uments, documents
and endorsements as may be necessary to effectuate the sales and purchases cont~upla~ed hereby and the
purposes of )his Agreement.
2.2 Purchase Price. The purchase price of the Receivables shall be equal to the Net
Amount thereof. The Net Amount less the Reserve associated with the Receivables shall be credited to
the Business's primary account with the Baltic on or before the next b~nbing day ~'ter delivery to the
Bank of acceptable Invoices. The Business and the Bank have agreed upon the purchase price of tile
Receivables and said price reasonably reflects their fair mn~ket value.
2.3 Documentation. Thc Business will provide the Bank with al~y,opriate Credit
Apphcafions and Agreements, Invoices, and C~dh Memos (if applicable) related to all sales and services
crealing Receivables of Customers, and such othc~ documents and proof of delivery of goods or r,~,tering
of services as the Bs~k may reasonably require. As to the P.~'ceivables described ~n Exhibit 2.1, the
payment of the purak-,e price by the B.t~k as set forth in Section 2.2 hereof shall be conclusive cvi,t,m~e
of assignment m~l sale thereof, and, if the Bank so requires, any Invoices the Business may thereafter
send (if any) will clearly indinate that the related Receivables have been assi~,ned, sold, and are payable to
the Bank only.
Bmln~. The Bank will send a m~,ndfly statement m ~ C~t~ i~g ~ek
~t ~fivi~ ~ ~ p~g bi~g ~fi~, u~ess o~e~ ~ ~ ~e p~es. ~
Cu~ ~ ~ ~c~ m m~ pa~en~ ~ a post office box cun~o~ ~ &e B~-~ ~
pay~ r~e~ ~om or for ~e a~um of a ~o~r wffi ~ apph~ to ~ obl~afiom of ~t
Cu~. Pa~t wffi ~ ~ ma~ wh~ r~ by ~e B~. ~ v~o~, m~ca~ns or
ex~in~ of ~b~ss on ~ivables sold ~o ~ B~ her~ w~ ~ m~d~ ~y ~ ~e B~
No~ing ~ this A~nl au~r~s ~e ~ess ~ ~l]~t R~vables ~ld ~ ~e Bs~ ~r~,
~ ~ ~e ~enl ~e B~ does, it ~ ~eive r~s ~ ~sz f~ ~e B~ ~ wffi ,e~t ~e
s~ ~ ~e Bsn~ no ~r ~ ~c ~xl bsn~ing ~y. ~ Bursa wffi ~y to ~ B~ ~y ~
c~ges ~ ~ a Cus~r p~i to ~ ~l~ble C~e~l A~li~on ~d A~n~ or ~
of s~c ~ ~y on ~e ~s~ss's p~ ~ ~live~g pa~ or Cr~i ~ ~ ~ B~.
2.5 Reserve. The Bank may retain a portion of the sums payaMe to the Business as a
Reserve, the nm,~unt of which the Bn,~' may adjust ff~m time to ~im~ in its reasonable discretion, to
provide for satisfeclion of the Buaincs~'s Repurchase Obligation. The initial amount of the Reserve will
be equal to 10% of the Face Amount of all Receivables initially pttrchased by the Bank. Thereafter, and
subject to the Bank's fight to adjust the Reserve as set out above, the Bank will retain as Reserve and
deposit in the Reserve Account 10.00% of the Face Amount purchased by the Bank subsequent to its
init/al purchase of the Receivables. The Reserve will be held in a separate, imeresi-bearing account for
the benefi~ of the Bu*i,~ss.
SECTION 3: R.EPURCfH~E OF RECEIV.I~I/tS: SECLI~tTY ~h'~'TFAIEST
3.1 Required ~,pur~h-se. With respect to any Receivables inilially pur~h-sed by the
Bank and shown on Exhibit 2.1. the Bank may requh'~ the Business to repurchase all or any portion of
such P. zceivables from any pal'~fl~r Customer ii' ally minimum payment due on cae or more of such
Receivables rem,ins -,?aid following 120 days after its invoice da~e. With respect to any Receivables
purchased subsequent to ~ Bank's initial purchase hereunder, the Bank may require the Business to
repurchase ail or any portion of such lh~ceivables fram any particular Customer if any minlm~lm
payment due on one or more of such Receivables ~m~;,~, unpaid following 120 days afle~ its invoke
date. For pu.,poses of this Agreement, the alinl stares of Receivables purchased from the Business as
shown on the aging report of Reccivables produced or generated by the Bank will be deemed conclusive
(absem manifes~ error) in determining which Receivables the Bank may require the Business to
repurchase. Regardless of when purch~d, the B~nI~ may require the Business m repurchase all or any
portion of such Receivables from any particular Customer if such Customer is bankrup~ or insolvent or
if any dizpute arises with a Cus~omur regarding mw..h Receivables (including, without limitation, any
a/legcd deduction, defense, off:set or coun~erchim thereto). The Bank may require the Business to
repurchase any or ail outstanding. Receivables (a) upon a Default, as del'reed in Section 8, or (b) upon
3
the termln:~tioa of this Agre~m~t. Aw/decision by thc Bank to require t~purchase of less than the
maxirr~m ~r~ount pe. rmi~d by this Agr~ment shall not be deemed a waiver of the l~,~"s rights m
requh'e such repurchase to the m=xhnum ex~nt pet'mitted in this Agreement.
3.2 Effe~_'~g Repurchsse. Should the Bmk require ~c~ of one ~ m~ R~bles,
~ B~mess ~1 ~ liable ~
~cei~bles. Up~ a D~t or ~i,n~ ~ ~is A~ml, ~e R~c~se Ob~fi~ ~1 ~o
~clu~ ~ ~o~ of~ ~,,,,,i~ ~ o~ obli~fi~ of~ B~s ~g ~ ~ A~mt.
Wi~out notice to or ~d ~ ~c B~mess, ~e B~ ~y ~bit ~ ~o~t of ~h R~wc~
Obh~fi~ (md ~y ~t nec~s~ to b~g ~e Reset W ~e leal r~d ~ ~e B~ ~ i~ ~lc
~d ~ble ~e~on) a~
B~s ~ ~e B~. ~ ~e cyst ~h ~o~ c~ ~uffici~t ~ ~r ~c B~'s ~t ~ ~c
Bs~ elec~ not ~ ~ ~ch ~bi~ ~e B~ a~es ~ ~y ~y ~h ~fici~ ~ sh~l on
d~d. ~e B~ ~l ~ve no ~g
r~c~ ~ ~ if
a~licable ~w, ~ B~s au~z~ ~y a~-at-law ~ app~ for thc B~ss ~ ~y ~ of
~ord m ~ U~ States, ~ m ~ess j~t for such ~o~i M may ~ to b~ ~id
· ~ ~g~ ~ ~y ~o~ble fees f~ coUe~on of said judger.
Security Interest. The Business hereby grants the Bank a secu.,ity interest in all of its
present and future a~counts, insWanents, cou~-~:t fights, chattel paper, documents and goneral intangibles
(in each case as defined in th~ Uniform Commgcial Code as in effect in the State whose law gov=ris this
Agreement) and the proceeds thereof, antl all retwned, repossessed, and reclaimed goods, and related
books and records, to secure all oftbe Business's Obligations, and agrees to exemite appropriate UCC- 1
/~='~cing and other related statements. In addition, thc Business grants the Bank a security interest in the
Reserve and in the Rescue Account to secure all of ~he Bnsiness's Obligations. The Business agrees to
execute such additional documents and take such further action as Bank deems necessary or desirable in
order to perfect ~ security interests granted herein and otherwise ~o effectuate thc purposes of the
Agreement. In the event that the Bank requires additional security for thc Business's obligations under
this Agreemeat and the Business or other party executes additional security agreements, pledge
agreements, guaranties and documents of similar import (collectively, thc "Additional Security
Documents"), terms used therein such as, but not limited to, "loans," "indebtedness," "secured
obligations," and "obligations,~ shall bc deemed to include the Repurchase Obligation a~ defined hcrein,
and notwithstanding the provisions of the Additional Security Documonts, the Repta'chase Obligation
secured thereby shall not constitute a loan.
SEt:i']ON 4: REPRESENTATIONS. W~IlIS AND COVENANTS
4.1 Representations and Warranties. The Business represents and warrants that:
(a) it is fully authorized to enter into this Agreemen'/and to perform hereunder, and that this Agreement
constitutes its legal, valid and binding obligation; (b) the Business is solvent and in good standing in thc
State of its organization; (c) it is not the present intent of thc Business to seek pro~tion under any
bankruptcy laws; (ti) its Receivables are and that they will be at the time of thei~ creation, bona fide and
existing obligations of Customers of the Business arising out of its sales or services, free and clear of all
security interests, liens, and claims whatsoever of third parties; (e) the documentation under which the
Receivables are payable authorize the payee thereof to charge, collect and receive interest at the rate
4
provided in such documentation; (f) all Receivables and all documents and practices related thereto
comply with all applicable federal and state laws; (g) the Receivables will be paid by Customers prior to
the date of required repurchase ~r will be ropurchased by thc Business pt~uant to Sections 3.1 and 3.2
hereof; (h) the collateral in which a security inter~t is gnmted in Section 3.3 hereof or in any Additional
Security Documents is not subject to any other security interest, lien or encumbrance whatsoever (except
in favor of the Bank), and that thc Business will not permit such collateral to become so encumbered
without the Bartles prior written consent; and (i) the Business's inventory is not subject to any security
interest, lien or encumbrance whatsoever and that the Business will not pen-nit its inventory to become so
encumbered without the Bank's prior written consent
4.2 Covem~uts. The Business covenants that
(i) it will allow the Ba~k to review and inspect during reasonable business hours, and the
Business will supply thc following financial information, financial records, and documentation on the
Business, any guarantors, or any Customer upon the Bank's request; (a) within thirty (30) days after the
end of each calendar month, financial statements of the Business prepared by and certified by the
Business's authorized agent; Co) within one-hundred twenty (120) days aria' the end of each fiscal year,
financial stat,,m~ts of the Business prepared by an acceptable independent certified public accountant on
a reviewed basis; (c) within one-hundred twenty 020) days after the end of each fiscal year, personal
financial statements and personal tax ~'/urns of the individual Guarantors; (d) wit~ on~-hundred twenty
(120) days aflcr the end of each fiscal year, financial statements of the corporate Guarantor prepared by
an acceptable independent certified public accountsnt on a reviewed basis (e) wecldy verification of
FICA tax payment by Business;
(ii) with respect to each Receivable as it arises: (a) the Business will have made delivery of the
goods and/or will have ren~ the services represented by the Invoice, and the goods and/or services
will have been accepted; (b) the Business will have preserved and will continue to preserve any liens and
any rights to licus available by virtue of the sales and/or Services; (c) the Customer will not be the
Business's affiliate; (d) the Bank's copy of the invoice will be genuine aM will comply with this
Agreement; (c) the Business will have no knowledge of any dispute or potential dispute that may hnpair
the validity of the wansaction or the Customer's obligation to pay the related Receivable in accordance
with its terms; (f) the Business will have the righ: to render thc services and/or to sell the goods creating
the Receivable, and will do so in accordance with all applicable laws; (g) the Business will have paid or
provided for the payment of all taxes arising from thc lrkm~¢tion creating the Receivable; and th) the
Receivable will not be subject to any deduc'cion, offset, defense, or counterclaim;
(iii) thc lransactions contemplated in Section 2.1 hereof are account p~n-chasc hn,~tions, ~he
Business will reflect such mmsactions in its accounting books and records as absolute sales of
Receivables to the Bank, A,~,t the Business vall r~mburse and indcranify the Bank for all loss, damag.e
and expenses, including reasonable attorneys' fees, incurred in defending such transactions as absolute
sales of Receivables, or as a result of the recharactefization of such transact/ohs; and
(iv) in the event of the commencement of any proceeding under any bankruptcy or insolvency
laws by or ag'ain~ the Business, the Business will not oppose or object to any motion by the Bank seelei,~g
relief from the automatic stay provisiom of such laws with respect to the Res~'vc ar the Reserve Account
or to any motion by the Bank with respect ~o the Receivables.
~:~.I.-IION ~: I~OR~$ ~ PROC~.DURE$: RESPONd" ~, ~ .ITY FOR. USE
5.1 Forms sad Procedures. The Business will use orgy forras, a~-eesnents, ~nd ~ivcnising
materials supplied or approved by the Bank in connection with the Receivables =.a will follow all
procedures lilat are satisfactory ~o the Bank ill connection with the use of tach forms, atlrcements, and
edve~smg materials.
5.2 Responsibili~, The Business will bc solely responsible for the adequacy, completeness
and accuracy of the raw data relating to the Receivables, its preparation in the form required and its
transmission to the B.,,t-. and will indemnify and hold the B--k. its conU~cUa's, and their respective
a~.-nts and employees h~mless from (and pay all reasonable attorneys' flees with respect to) any claim or
liability sustained by virtue of ~ting in reliance upon data furnished by the Business, Thc Business
undr~h,nds that the form of credit application and agreement ando~her documentation the Bank supplies
m the Business should be reviewed by the Bu.i--ss's counsel as the Bank makes no reprcsentation or
warranty as ro their enforceability in the Business's sia~e or their comPliance with applicable federal
and stare laws, The p.,m~r and the Business agree hsmt the Bank is the owner of all Receivables
purchased by the Bank here,,-a,cr, and &.at all activities of the Bank in connection with file collec-6nn of
Receivables, generation of informatioa, and processing of da~a, is for file account of file B~nk's own
affairs; alld shat the inforlllalion genera~ext in conllecfion therewith i~ the properly of the Bank The
Business will h~-m.!ry a~l hold the Bank, its con~ractors, a.,ul their respective agents s.,~ employees
harmless from (and pay all reasonable a~omeys' fees with respe.~ to) any loss or claim involving
breach of warran~ or representalion by the Business and frown any loss or claim by any Customer
relating lo goods and/or services (or the manner or type of their sale or provision) giving rise lo
Receivables purchased by file Ba~k hereunder.
SECTION 6: POVirF_,R OF A'II'OIL,NvEY
The B,,,:i-ess appoints the Bank as its atu~rney-in-fact co receive, open, and dispose of all mall
addressed ~o file Business pertaining to Receivables; lo endorse thc Business's nnm.~ upon any no~es,
acceptances, checks, drafts, money orders, and other evidences of payment of Receivables that may
come into the Bank's possession, and ~o deposit or otherwise collect the same; a.a to do all other acts
~.a ~hlngs uece-~ to carry out ~he ~ of this A~reemcnt. ~ power, being coupled with an
interest, is irrevocable while any Receivable owned by the Bank shall remain unpaid.
SECTION 7: APPLICABLE LAW
This Agrecmem shall be governed by, construed and enforced a~ording to the laws of the
Co,,,.~onwealfil of Pennsylwni~
SECTION 8: DEFAULT
8.1 Events of Default. The following events will constitute a defaul! (a "Default") under the
l~s of this Agreement: (al the Business fails to pay thc Repurchase Obligation or any other paymen'c
obligation of the Business under ~his Agreement on demand or the Business fails lo pay any indebtedness
of the Business owed to the Bank pmsuant m its terms; (b) the Business breaches the rcprasontations set
forth in Section ~t.l(d) or hils to turn over remittances on Receivables to the B,,~¥ in accordance with
Section 2.4 hereof] (c) except for the obligations described in Sections 8.1(a), and 8.1(b) hereoC the
Business fails to perform any obli~tion* covenant or liability in connection with this A~'ecmen~ wiflfin
ten (10) days after the date that written notice thereof is ~iven to the Business; (d) any wzr~nty,
represcntat/on or sta~mant whenever made by the Business in connection with this Agreement proves to
be false in any material respect when made, or the Business fails to disclose to the Bank that any such
w~.,~,,t~, ~resenmtion or statement has become unlrue in any material respect; (e) dissolution or
ter~ion of the Business if the Business is a corporation, partncrahip, or other exitity, or if the Business
is an individual, thc death of such individual; (i) the Business's insolvency, (~) the essi~ment for the
genera] b~ncfir of the Business's creditors, thc appoinuncnt of a rccoiver or trustee for its assets, thc
commencement of any proceeding under any bankruptcy or insolvency laws by or al~ainst the Business or
any proccedinl~ for the dissolution or liquidation, settlement of claims a~ainst or wind~ up of its affairs;
(h) thc t~.wi',-zation or withdrawal of any ~mranty for the Business*s Obli~,atio~s; (i) the B,,-;,~,',~ ~;I~ to
pay wben due any lax imposed on it or any tax lien is filed a~tinst the Business or any of its assets; (1)
any judgment a~inst the Business remains unpaid, unstsyed on appeal, undischarged, unbonded or
undisrnissed for a period of thirty (30) days; (It) the Business discontinues its business as a going concera;
or (1) thc Bank in good faith dcen~ the prospect o£ the Bu.siness's payment or performance of its
Obligations to have been impaired.
8.2 E~fec! of Default. Upon the occurrence of any De~?!t, in addition to any zip, his thc
Bank has under this Allrecmant or applicable law, thc Bsnk ~ im,~ediately ~r,~,~ this Allreement,
at which time all Obli~ationa the Business owes to the Bank will immediately becomc duc and payable
without notice, and the Bank's obli~aliuns to the Business hereunder will cease. After the occterence ora
Default, the Bank will have the fi~ht to withhold ~ny further payments to the Business, and none of the
Bank*s fights or collateral will be adversely affected thereby.
SECTION 9: NON-LIABII~IT¥ OF BANK: RELEASE
Except for a breach by the Bank of this Agreement, the Buiiness hereby releases, discharges,
and acquits the B~,~I~; its officers, dkecwrs, employees, parlicipan~s, successors ~n~ assi?= from any
and all claims, dem~n,t% losses, and liabiliV/ of any nature which the Business ever had, now or
hereafter can, sh~n or may have in counecfion with or arisinE out of the ~ransacfions con~emph~nd
herein or the documentation hereof. In addition to the provisions of this Section and Section $.2, the
B*,~' .~h~l not be liable for any indirect, special or consequential damages, such ~ loss of anticipated
revanues or other ece~omic loss in connection with or arlsinE out of any default in performance
hereunder or other matter arisin~ here from. Nor shall the Bank be liable for any errors ofjud§mant or
mistake of fact when actin~ as the Business's attorney-in-fact pursuant to Section 6, or liable for delay
in the performance of the Bank's duties caused by slrihe, lawsuit, riot, civil disturbance, fire, shortage
of supplies or materi~t% or any other cause reasonably beyond the Bank's control.
SECTION 10: E~'I,'~JCTIVE DATE: TERbiL~ATION: BIN'DENG EFFECT
This A~,'eement will be effective when accepted by the Bank, and will continue in full force and
effect until the earlier of (a) one year after the effective date of this A~'eement; or Co) sixty (60) days after
written notice of t~.,Jnalinn has been ~iven by one par~ tO the other (in each case subject to immediate
ic,',.ination upon a Default); and the term of this A~reement will automatically be extended for periods of
7
one y~ cm~ follow~ng its otherwise scheduled termination, subject
~ liable m
~y ~old ~y pa~t to ~ Bu~s ~ess sullied ~ ~ ~i~ sa~s~ ~ ~e B~.
~is A~t ~ b~d ~ B~s ~d ~e B~i~'s he~, ~ecut~, ~e~ ~d ~si~s
· na ~1 ~ m ~ b~efi~ of ~e ~ ~a ~e B~'s ~s~rs ~d assign. ~e ~si~ss agrees
~t ~ B~ ~y ~legam i~ ~d~ herder, but ~t ~e B~i~ss ~y ~ do so wight ~e B~'s
prior wfi~ ~.
SECTION 11: A'I'I'ORNEY'S FEES: PAST-DUE OBLIGATIONS: WAIVER:
8EVERABII.ITY: i~.ADINGS: Ei~'i'l.K~ AND CONTROLLING AGREEI~I!;NT:
NOTICES: COUNz'~:RPARTS
Thc Business will pay all reasonable expenses incurred by the Bank in cormection with the
execution of this Agreement, including ~ incurred in connection with the filing of financing
slat~ments, continuation st~toments and record scotch.c: All past-due obligations of the Business arising
under this Agreement shall bear interest at thc maximum nonusurious rate pcrmit'~l under applicable
stato or federal law. The Business hereby waives grace, demand (other than den~nd pursuant ~o $cctiun
3.2 hereof), presentment for payment, notice of dishonor or default, notice of intent to accelerate, notice
of acceleration, pro,est a~d notice of protest and diligence in collecting and bringing of suit against the
Business. Upon liquidation of/my collateral, settiement or prosecutiun ora dispute with any Cus~omor, or
enforcement of any obligation of tho Business hareunder, the Business will pay to the Bs,,I-. and the Bank
may charge to thc Bnsiness's account, all costs and expenses incurred, including reasonable attorneys'
fees, and such costs, expenses and fees shall constitute part of the Business's Obligations. No delay or
failure on the Banlds pan in exercising any fight, privilege, or option hereunder shall operate as a waiver
of such or of any other fight, privilege, or option, and no waiver, amendment or modification of any
provisiun of this Agreement .h.ll be valid unless in writing signed by the Bank, and than only to the
extent therein stated. Should any provision of this Agreement be prohibited by or invalid under applicable
law, the validity of the remai~ng provisions shall not be affected. The headings herein are for
convenience only, and shall not define or limit the scope, extent, meaning or intent of this Agreement.
This Agreement embodies the Busi~ess's entire agreemen~ as to its afl~liatian with the Bank's
Business[Mnn-ger program, although ~he Business anticipates that the Bank will subsequently outline
certain depository and other bar~ procedures, in thc event of any inconsistency bet~veen this Agreement
and any other agreement signed by the Business and thc Bank in connection with this Agreement,
including without limilation, any Addifioml Security Documents, the terms s~l provisions of this
Agreement .h.ll canlrol and the i~,u,~ ~ provisions of any such other document shall be ineffective to
the extent of any such inconsistency. Any notice, request or dem~rld to be given heretnlder will be
deemed to be given when deposited with a delivery service addressed to, or sent by registered or certified
mail to, the address of the ~ecipient listed at the beginning of this Agreement. This A~rcement may bc
executed in multiple cotmrerparts, wlfich when taken toge~er si~ll constitute one n~ the same
Agreenlent.
SECTION 1~: SPECIAL SI~/PULATIONS
In the event of dehul~ iud accelerutien to provided above, Business authorizes iud empowers
irrevocably, the Prothonotary, Clerk of Court or any Attorney of any court of rocord to appear for
the Business in such court, in tern~ or vacation, at any time and con/ess Judgment, Jointly and
severaily, in favor of Bank with or without the filing of in averment or dechrutinn of de/unit, for
such amount u may uppear to be unpaid, all interest due thereon and all reasonable costs incurred
in connection with the collection of such amount, together with au attorney's fee of Five (S%)
percent of the totai amount due (but in no event less than Five Hundred ($S00.00) Dontrs, iud the
Business w~ves and rele&~es uny iud aH errors which my intervene in any such proceedings iud
waives all Fight of appeal iud consents to ~r~mediate execution upon such iud~nent. The Business
shall not cause ~ny bill in eqni~ to be filed to interfere in any manner with the operation of such
jud~nent, hereby rai/~ying and COIlflFming Bli the said attoFney my do se by virtue hercof. The
authority hereinabove griuted shall not he ~vhonsted by one exercise thereof, but judgment may be
confessed aforesaid from time to time and ns often as any dehult shell occur hereunder.
Confession of judgment nay be mude by f'ding t copy hereof in lieu of the ori/inni hereo£
The ~usiness acknowledges that ~u~tnegs understands the meaning and effect of the confession
containexl in the foregoingparagr~h. Specifically. the Business understandz among other things that {J}
~u~ines$ i~ relinquishing the right to have not, ce except ~ provided herein, an opportunity to be heard
and the right to have the burden of proof of default rest on Bank prior to the entry of judgment, (2) the
entry of judgment may rezult in a lien on Business '$ properCy, ($} ~u~ine~$ will bear the burden and
expense of attacking the judgment and challenging execution on the lien and sale~ of the property covered
thereby, and (4.) enough of Business '$ proper~y may be taken to pay the principal amount, interest, costs
and attorney'$ fee~.
Bank end Business acknowledge that disputes arising under this Agreement are lfkely m be
complex and they desire to stremnline and rnlnlmi~e the cost Of resolving such disputo~ Therefore,
Blnk and Bn~inees irrevoc~bJy wa/ye nil rights M a trini by ]uFy in any action, countercinlm,
dispute or pFoceeding based upon, or rehted to the subject matter of this Agreement. This waiver
applies to nil claims agnln~ ail parties to such actions and proceedings including those involving
Bank or Bank's parent, ~tes or related entities, or any officer, director, shareholder, member,
attorney or partner of any of them. It also applies whether such dirpute or proceeding arises under
this Agreement, any other agreement, note, paper, instrument or document heretofore, or hereafter
executed or any other contract, whether similar or dissimilar; and whether or not it arises from
intentional or unintentional conduct, from frand, other improper action or failure to act, or from
other reasons. This paragraph shah be deemed a covenant iud enforceable independently of aH
other provisions of this Agreement. This wnlve~ is knowingly, intentionally iud voluntarily mmic
by Business and Business acknowledges that neither the Bank, or any person acting on behalf of the
Bunk, has made any representations to induce this waiver of trail by jur~ or in any way to modify
or nulli~ its effect. ]Business further acknowledges that it has been represented (or has had the
opportunity to be represented) in connection with the signing of this Agreement and in the making
of this waiver by Independent legal counsel, selected of its own free will, and that it has had the
opportunity to discuss thi~ waiver with counsel. Business further acknowledges that is has read and
understands the meaning and ramiflcniioas of this waiver provision.
2'his/lgreement contains ~u$iness's waiver of trial by Jury, provides for the remedy of confession of
judgment by Bank and waiver of aertafn other rights and remedies by Bu.~ine. v$. In connection therewith,
maker voluntarily and knowingly waiv~ ~u$iness'~ right to a trial by Jury, its right, if any to notice and
to be heard before the entry of confesxion of judgment, and waives other rights and remedie~ as set forth
in the ~gr~nent. 2~urine~$ acknowledge, r that it ir re~re~e~ted by counsel and that ~ouarel has revie~ved
and explained the meaning of the~e v:aiver,~ and remedies to maker.
THE UNDERSIGNED ACKI~OWLEDGES THAT THIS AGREEMENT CONTAINS A RELEASE
OF CLAIM~ AND WAIVEI~ OF CERTAII~ RIGHTS AND THAT THIS AGREEMENT HAS
BEEN FULLY UNDERSTOOD PRIOR TO EXECUTION.
ATTEST:
ACCEPTANCE:
This Agreemeat is accepted thiz ""~'-- dayof ~.~ck~ ,2000.
BUSINt/SS:
BRYAN A. zr~OL~R EXCAVAT~G &
PAVING, INC.
A'l;l'l;iT:
BANK:
YORK FEDERAL SAVINGS AND LOAN
ASSOCIATION
10
Disclosur, For Confession of Jud~ent
Bryan A. Zie~ler E----vafing and Paving, Inc. ("Bushess'), today is -~i~i~E The
Business~er Asresm~r~ (the "AgreemenI") wiIh York Federal Savi~s a~d Loa~
Association, ("York Federal") in the amou~ of Two l~llinu Dollars ($2,000,000.00)
which ohligaIes B~i~ess to pay that ~ to York Federal.
1. wh/ch penn~s York Federal to obtain a judgment agains~ Bus/ness in any Court of
Common Pleas/n the Co~;,~,mvealth of Pem~sylvania.
2. by wMeh Business con.~ts to the ~ of judgment aga/nst Bus/m~. The
jug~orr~ may i:m obiained ~aln~ and an ~ tar~i~h~ proceedi~s begun
withou! the followiug, all of which Busin~s~ ha~ im~mio,~y ,,~ lmowingly waived:
the figh~ rna nolice .,~t beari~;
b.
the right to reduce or set off a els~m by deduction a claim Business may
Imve agsi~t York Federal;
c. releasc of error;
inquest (the right to ascertain whether the rents or profits of B-einess's
real estate will be sufficient to satisfying the jud~om*~ w~hln seven ycars);
e. stay o£cxectnion;
£ exeaup/ion hws now or heres/ret to be passed;
g. the ri~o~ to cl~femd ~i,,~ the eatry of judgment ~in,~ B-~ess;
Bn~h*ss certifies that it received a copy ofth;~ disclosure a~ the tlm~ of signing.
Br~an A. Ziesier Excava~u~
and Paving, hu:.
EXhibit C
~LI£RT ~LIERT gAOE ODE DATE EST O0 TAX ;/L IRCOIE ;IL TAX
TOTAL 25,000.00 25,050.00 2,500.00
,*Mi, TI~AL~CTZON DETAIL
SHERIFF'S
CASE NO: 2001-06183 P
COMMONWEALTH OF PENNSYLVANIA:
COUNTY OF CUMBERLAND
WAYPOINT BANK
VS
DOVER GF LP
RETURN - REGULAR
CPL MICHAEL BARRICK , Sheriff or Deputy Sheriff of
Cumberland County, Pennsylvania, who being duly sworn according to law,
says, the within COMPLAINT & NOTICE was served upon
DOVER GF LP the
DEFENDANT , at 1300:00 HOURS, on the 31st day of October , 2001
at 1000 NORTH SECOND STREET
WORMLEYSBURG, PA 17043 by handing to
DOUG LEHMAN, ATTORNEY
a true and attested copy of COMPLAINT & NOTICE together with
and at the same time directing His attention to the contents thereof.
Sheriff's Costs:
Docketing 18.00
Service 10.40
Affidavit .00
Surcharge 10.00
.00
38.40
Sworn and Subscribed to before
me this ~- day of
A.D.
~P]~othonotary ' '
So Answers:
R. Thomas Kline
ii/O1/200i
RHOADS & SINON ,
-FDe~uty ~heriff