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Home My WebLink About07-4919i IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CITICAPITAL COMMERCIAL CORPORATION, Plaintiff, vs. LARRY L. FOSTER, Defendant. CIVIL DIVISION No: 07 - /~Q IGi Civ i t leo-m COMPLAINT IN REPLEVIN AND ASSUMPSIT Filed on Behalf o£ Plaintiff Counsel of Record for This Party: Thomas E. Reilly, Esquire Pa. I.D. #25832 THOMAS E. REILLY, P.C. Firm LD. #511 2025 Greentree Road Pittsburgh, PA 15220 (412) 341-1600 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CITICAPITAL COMMERCIAL CORPORATION, Plaintiff, vs. LARRY L. FOSTER, Defendant. CIVIL DIVISION No: NOTICE TO DEFEND You have been sued in court. If you wish to defend against the claims set forth in the following pages, you must take action within twenty (20) days after this Complaint and notice are served, by entering a written appearance personally or by attorney and filing in writing with the court your defenses or objections to the claims set forth against you. You are warned that if you fail to do so the case may proceed without you and a judgment may be entered against you by the court without further notice for any money claimed in the complaint or for any other claim or relief requested by the plaintiff. You may lose money or property or other rights important to you. YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE LAWYER OR CANNOT AFFORD ONE, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW TO FIND OUT WHERE YOU CAN GET LEGAL HELP. IF YOU CANNOT AFFORD TO HIRE A LAWYER, THIS OFFICE MAY BE ABLE TO PROVIDE YOU WITH INFORMATION ON AGENCIES THAT MAY OFFER LEGAL SERVICES TO ELIGIBLE PERSONS AT A REDUCED FEE OR NO FEE. CUMBERLAND COUNTY BAR ASSOCIATION 32 SOUTH BEDFORD STREET CARLISLE, PA 17013 (717) 249-3166 J IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CITICAPITAL COMMERCIAL CORPORATION, Plaintiff, vs. LARRY L. FOSTER, Defendant. CIVIL DIVISION No: ~ ~- ~/ 4 / 9 f~P ew- COMPLAINT IN REPLEVIN AND ASSUMPSIT AND NOW, comes Plaintiff, CitiCapital Commercial Corporation, by and through its counsel, Thomas E. Reilly, P.C., and files the within Complaint in Replevin and avers as follows: 1. CitiCapital Commercial Corporation is a corporation having an office located at 3950 Regent Boulevard, Irving, TX 75063, and is hereinafter referred to as "Plaintiff '. 2. Larry L. Foster is an individual residing in the Commonwealth of Pennsylvania, whose last known address is 60 Conrad Road, Carlisle, Cumberland County, PA 17013, and is hereinafter referred to as "Defendant." COUNT I -REPLEVIN -ACCOUNT NO.111-0193493-000 3. Plaintiff incorporates by reference the averments contained in Paragraphs 1 through 2 as if fully set forth herein. 4. On or about August 30, 2003, the Defendant purchased one Bobcat Hydraulic Mini-Excavator 325, Serial Number 232312368, from Clugston AG and Turf Incorporated and entered into a written Security Agreement to secure payment of the portion of the purchase price thereof. A true and correct copy of the written Agreement is marked Exhibit "A", attached hereto and made a part hereof. 5. The written Agreement was assigned for value to Plaintiff. A true and correct copy of the Assignment of Seller is marked Exhibit "B", attached hereto and made a part hereof. 6. To provide notice of its interest in the above described equipment, Plaintiff filed a Financing Statement with the Commonwealth of Pennsylvania, a true and correct copy of which is marked Exhibit "C", attached hereto, and made a part hereof. 7. The Defendant defaulted under the terms and conditions of the written Agreement by failing to make payment when due. 8. Numerous demands were made by the Plaintiff upon the Defendant for payment, but the Defendant has failed and refused to pay. 9. Plaintiff is advised, believes, and therefore avers, that the value of the equipment is the sum of $11,800.00, and that the vehicle is in the Defendant's possession, but its exact whereabouts are unknown. 10. By reason of the default, Plaintiff is entitled to immediate possession of the equipment and has demanded the same from the Defendant, but Defendant has failed and refused to deliver possession to Plaintiff. WHEREFORE, Plaintiff, CitiCapital Commercial Corporation, respectfully demands Judgment in Count I for possession of one Bobcat Hydraulic Mini-Excavator 325, Serial Number 232312368, and/or the value of same in the sum of $11,800.00 plus additional damages for the Defendant's unjust retention thereof. COUNT II - ASSUMPSIT -ACCOUNT NO.111-0193493-000 11. Plaintiff incorporates by reference the averments contained in Paragraph 1 through 10 as if fully set forth herein. 12. The amount due and owing Plaintiff by the Defendant is as follows: Balance: $9,386.53 Accrued Interest: $288.26 Late Charges: $157.43 Total: $9,832.24 Interest continues to accrue on the net balance at the rate of $1.52 per diem from July 11, 2007. 13. Under Exhibit "A", Plaintiff is entitled to recover reasonable attorney fees, which Plaintiff alleges to be the sum of $1,500.00. 14. Plaintiff has made demands upon Defendant for payment, but Defendant has failed and refused to pay. WHEREFORE, Plaintiff demands Judgment against the Defendant, Larry L. Foster, in Count II in the sum of $11,332.24 with interest continuing to accrue at the rate of $1.52 per diem, plus court costs. COUNT III -REPLEVIN -ACCOUNT NO. 111-0237776-000 15. Plaintiff incorporates by reference the averments contained in Paragraphs 1 through 14 as if fully set forth herein. 16. On or about Apri125, 2005, the Defendant purchased one Bobcat Skid- Steer Loader 5150, Serial Number 526916991, Cab, Heat, and ACS, from Clugston AG and Turf Incorporated and entered into a written Security Agreement to secure payment of the portion of the purchase price thereof. A true and correct copy of the written Agreement is marked Exhibit "D", attached hereto and made a part hereof. 17. The written Agreement was assigned for value to Plaintiff. A true and correct copy of the Assignment of Seller is marked Exhibit "E", attached hereto and made a part hereof. 18. To provide notice of its interest in the above described equipment, Plaintiff filed a Financing Statement with the Commonwealth of Pennsylvania, a true and correct copy of which is marked Exhibit "F", attached hereto, and made a part hereof. 19. The Defendant defaulted under the terms and conditions of the written Agreement by failing to make payment when due. 20. Numerous demands were made by the Plaintiff upon the Defendant for payment, but the Defendant has failed and refused to pay. 21. Plaintiff is advised, believes, and therefore avers, that the value of the equipment is the sum of $15,300.00, and that the vehicle is in the Defendant's possession, but its exact whereabouts are unknown. 22. By reason of the default, Plaintiff is entitled to immediate possession of the equipment and has demanded the same from the Defendant, but Defendant has failed and refused to deliver possession to Plaintiff. WHEREFORE, Plaintiff, CitiCapital Commercial Corporation, respectfully demands Judgment against Defendant, Larry L. Foster, in Count III for possession of one Bobcat Skid-Steer Loader 5150, Serial Number 526916991, Cab, Heat, and ACS, and/or the value of same in the sum of $15,300.00 plus additional damages for the Defendant's unjust retention thereof. COUNT IV - ASSUMPSIT -ACCOUNT NO. 111-0237776-000 23. Plaintiff incorporates by reference the averments contained in Paragraph 1 through 22 as if fully set forth herein. 24. The amount due and owing Plaintiff by the Defendant is as follows: Balance: $15,050.62 Accrued Interest: $462.24 Late Charges: $155.84 Total: $15,668.70 Interest continues to accrue on the net balance at the rate of $2.43 per diem from July 11, 2007. 25. Under Exhibit "D", Plaintiff is entitled to recover reasonable attorney fees, which Plaintiff alleges to be the sum of $1,500.00. 26. Plaintiff has made demands upon Defendant for payment, but Defendant has failed and refused to pay. WHEREFORE, Plaintiff demands Judgment against the Defendant, Larry L. Foster, in Count IV in the sum of $1,7168.70 with interest continuin to accrue at the rate of $2.43 per diem, plus court costs. ~ THOIVSA~ E. REILLY, P.C. BY: Thomas E. Reilly,l/s 2025 Greentree Roa Pittsburgh, PA 15 (412) 341-1600 Attorneys for Plaintiff ~'n~d" SECURITY AGREEMENT f~ (Conditional Sale Contract) ~•-- Financial Setvtces The u buyer, rneanin all buyers lparntly and severally ("Buyate~,, havirg been quoted both a time sale price and k~ah sob price, has elected to purchass~rdrases ~ the urWetsigned seller ("Soper") for the time sale peace shown below. under the Urerrre and provisions of this agreen~aM, the following d roperly (herein. with a0 presets and a a~chm~nt~, aocsssaries, replacement parts, repairs, additions, and ap proceeds theroof. referred b as "Copatera~: (1) BOBCAT FtYDRAUt.iC NLINI-EXCAVATOR 325 31N 232312366 The Collateral wip be used ~rimatihr for_~lbusiness or tommmercial Collateral will be kept at 60 NRAD Rvwu and, when in use, w111 be used arlly in Ble fallowing State(s): PA !arming INSURAIyCE COVERAGE LIABILITY INSURANCE COVERAGE FOR BODILY INJURY AND PROPERTY DAMAGE CAUSED TO OTHERS IS NOT INCLUpED iN THIS AGREEMENT. PHYSICAL. DAMAGE INSURANCE COVERING THE COIlATERAL IS REQUIRED; however, Buyer has tare option of fumishirrg the required klsuranoe iklrough an agent ar broker of Buyer's choice. ^ Buyer requests and authorize Soler to obtain Insurance coverage in the nature of "All Rb irrskrrarloe (Fire, extended coverage, 'r vandaYwn, theft and ooliblon and containing e>adusions from m coverage aocepiabie to Seer) on the Collateral for c = ordhs from Ada w~ thisSAgreemant, 0.00 r deduct occurrence. ~i Q Buyer has obtained the required coverages through: ~1 {r1 79~ -~~ Buyer hereby auntorizes sNbr ana my assignee to rebase to any inwtance company atflllalsd tsith Seger or rely assignee any infomriagon Matlng to a contract or potiry of Irtsuranee which is ~m~ing oar Coy p .reside Ittsurarree coverage a~inst physical CREDR INSURANCE, ff incuded, is not a factor in the approval of credit, is not required by the Soper and is for fhe term of the kxedit only. ^ Buyer desires Credit insurance: Premium S 0.00 (Farr rhr„r rd in 4(hi-OTHER CHARGES) T uW Buyer hereby requests aqd authorizes Seller to obt~n Credit W~ irrsurre-oe, ff checked above, t0 the extent the cost thereof is included u in Item 4(b) - Other Charges. y ® Buyer does not want Credit I once. BUYER Date _~~~~ (Only one person ysign above, and any credit insurance cov only that person. Credif'insurattoe does not cover any co-buyer.) Description of Trade-1n: Gross Allowance ...... .................... Use Amount Owirrg To: When not h use, the O.oo .................. s ................. S 0.00 TradeJn(NetAlbrrarx~) ............................... S 0.00 (her reo,s rd in 2{bi) 1. CASH SALE PRICE ........................................................ S 26,818.00 2. (a) Cash Down Payment ............... S 2,500.00 (b) Trade-in (See above) ............... S 0.00 (c) Nat Rerxal Cred'R ............... S 0.00 TOTAL DOWN PAYMENT (a + b +c) .................. S 2,800.00 3. UNPAID BALANCE OF CASH SALE PRICE (1 Minus 2) ................. S 21,318.00 4. OTHIBt cHARCEs (a) Physical Dsmaps inaurarrce ............. s 0.00 (b) CredM Insurance ..................... S 0.00 (c) OfAcial Foes ................5 0.00 (d) other .................................... S 173.00 (Oeskxibe) Administratlve Fes TOTAL OTHER CHARGES (a+b*c+d) ............................ S 176.00 5. PRINCIPAL BALANCE (3+4) ................... S 24,493.00 6. FINANCE CHARGE ................ S 2.493.20 7. UNPAID TIME BALANCE (5+8) ,,. S ~.~-~ B. TIME SALE PRICE (1+4+8) ...._....... ........... S 29,488:20 an 3-exares rm". ra~ot ORKi1NAL FOR CITICAPRAL kxmnn Na-vrl>- t~ingersotl-Rand Financial Services is a division d CitiCapital Commerdal Corporatlon 1.80948.2.0 XC:20030828161326 EXHIBIT ~. ~ li vrlth the bllowiny serial Buyer's Inhiafs . PAYMENT SCHEDULE: Buyer promises to pay Setler the UNPAID TIME BALANCE (Item 7 above) in ~~ ~ or~~k~.nu) instalirrtents ~ ~~~ For ~~ ~ (a) g 449.77 on 10!01!2003 and a like sum on ttte Ilke date of each monthly instagrr-ents: ~ month thereafter until tiny paid, For other than ~) equal successive Installments: provided, havvever, that the final Installment shetl Ire in the amount of the remaining unpaid balance. 1. DELINQUENCY, RETURNED CFECKS AND ACCELERATION MiEREST. For each irratatltnerrt not~~ppaekt when due Buyer mess to pay to Seller a delinquency charge calculated thereon at the rate of 1%, % per month for ttra period of degrtquency a, at sellers ~% of suc~ft insta provided that such a delinquency dur-ys is not prohibtled by law, otherwise at the hi~test rate Buyer can 1 atly otttlgsie itself ~ p ~ aedlor Seller can aolbct. Buyer agrees roe reimburse SeINr knrrtedtately upon demand for any amowtt Charged to Ssllsr by arty daposRary inatltutlon bsuuss a shack, drag or ofiter order mods or drawn by or for the beneffi of Buyer Is rtrtrarteid unpaid [or ar-y reason and, R sgowad by law to pry Saifar an addltlornt handllr~p charge in lire srrrount of :25.00 tx in the event app~Icable law mlb or restrkb the amount of wch reitn~trreemsnt andfor handlMg charge, IM arraurKs chargeable under thl: provision will balirrtibd andlor rastrided in arxordance wtlh appliubis law. Buyer agrees to pay Setler, upon acoelerotion of Buyers indebtedness. etterest an erg sans Uten tg hereunder at Qte rate of 1 3r, % per month if not preh~tted~y law otherwise at the highest rats Buyer cron tagady obAgarte itsalE b pay andfar SeNer ~~ir fsgaNy coUsd. Arty note taken hsreMrith avkfenoas hdebtedneas and not payment. All amounts payabb hereunder are payable at Seller's address shown lekrw or at such other address as Seller may spedry from time to Urns in g. 2. 8Et'xIRiTY NTEREBT AND ALLOCATION OF PAYMENTS. To secure ppaayment of the UNPAID TIME BALANCE, Sutler retains title m and a security interest in the Cotleteral _of any ro and redelivery of the~Cr~oe4yateraci t~orgBeusyer. All psymer>ts made by Buysrwith ref~r~npcaeyrrto~putnhisAgr~ement dehbt~ This ~ ~trds over ersiy oon{icUng P-oviswn o~ ~ua~ h t~ un~hl atpQSU ha'antyd~e~ ~ ~ PardMbetw lelenaSeil~ar d Buyer unless t~heY parties mutually agree in writing in a subsequent agreement la override This provision. 1. CROSS 8ECURITY. Buyer grants to Seller, its atfilates (indudirrp, wghout Irtdtatbn, atryr direct or indirect parent, subsidiary err sister entity) successors and assigns a ssctsity interest in the Cotlataral (separate and distinct from end subordinate to the security interest granted to Seller under ~wagraph 2 of this AgreenNnt) to secure the payment and perTornrance of ai debts and all 6abi6Ues of Buyer b SeNer of every kindand character, whether now e>dsthg or her anscg, and whether direct. hrdirect. absolute. contingent, primary. secondary. or otlterwiae, or to arty affltlates (including, without GmttaUon, arty direct or indirect parent, sufrsidfary or sister anti ), successors or as of Seller, now t~ or hsrseRer ether under this reement err any outer agreement, and whether due deectly or by assignment. Theme security irderest gran~tad Trerein shag oonh~ to be etiecihre of arty retaking or redelivery of Ure Collateral to Buyer. Upon any assigrrmertt of this Agreement by Seller, the assignee shag then ba deemed the Seller for the purposes of this paragraph. 4. PREPAYMENT. Buyer may prepay Buyers obligations under this Agreement in tutl at any Ume. Upon prepaymenbt Buyer wtll receive a rebate of the urteamed portion of the finance charge cakxileted using an actuarial method err such other method as is requiirraedd y applicable law minus, ff the t is roads prior m the last twelve martths of the contract, a prepayment prooessing fee equal to the leaser of ~a) one peroere nt {1%) of the amount each full twelve month period remaining under' the teen of ttus Agreembnt as of propayrtrsttt and (b) the maximum yre Minaret andla aoquisitlon dtarge allowed by apptlcatrle law. All accrued end unpaid late charges and other amounts chargeable ~ Buyer under this l~reement wdtl be payable immediately upon such prepayment. 5. DISCLAUNER. There are rto wananUes other than those prvvtried tree Manutarerror or Ina t,;aaararot. seuerc rVw OR WARRANTIES EXPRESS OR IMPLIED AS TO THE QUALITY ORiCIMNSHiP DESIGN, MERCHANTABI 1TY, THE COLLATERAL FOR ANY PARTICl1L1Ui PURPOSE OR ANA' OTHER REPRE'`SENTATtON OR WARRA~TY to IMPLY I~~~i ~ sv~warranties are to writing and signed by Seder. Seger shah not tinder arty circarrr>sienoes be liable far 8. TRADE QI AND DOWN PAYMENT. _ &iyer wanarrts tt-at (a) c~tedc or other tnstnanant ppre~ttted~~to ~~lly~rreaes an)r porti(obn of the "Cash Down PaymenC indicated above represents funds immediately avaUable to 5elier and wit not 68 retuntsd M rod herein~a~ taN~s Ag)rsBert~axth (if any) of the arrta~irnt and authority to convey Utb to arty Troda-In listed herein to Soler and, upon the ptayrna inditated, Buyer shall have tltb to the Trade-in free and dear of any Ikn, daim, security interest or trrterest of wry Party other tltan those chiming by or tttrorrgh Soler. 7. ADDITIONAL WAaRpRpArNTIES AND ArCbiyREEMeEoNeTssBaryBuyer watTants anudyeagreee that the an~d~naooepted by Buyer" in~s~fa~cfOBry ecort0'rUaope; ttte Gouat~ wltl~6e~m lefts Zs in yaod W opentsd with sera oMy by quaUffed personnel in the rsgtrlar course of Buyer's business tegtrlaUorts, manufacturers spsdficatkxra end the reatrkdians contained in irtsurence p corniiunctlon vdtlt the stora~e~ transportation tx disposal of substances oortsiderod to be toxk: a ihaf would ~~ the Collslaral to seinro or mMiscatiat b arty govemmwrtat body; and U herein and wilt not be removed from said IocaUort wlttrout Uyie prcbr wrUUn consent of SeiN no ly used by Buyer at more Than one bcation, Buyer may use the Cotlateral away from that~a) K the Cotlaterol is not caromed to said kicatbn within 30 days. tBu~yera wtlt immediate revue ~e omf Utfs~J4gr~ee~nren r~st~Y have t~ rgM two ~pt~u~ ate CoUabrroa~ at all rhea of and performance by under the terms of this rectors, ass icable; ttra CoNs3rtercal was deBveared to rt~iort, and appearance and witl be tared and rrtormtty twiN erg aod~aWa governmental laws and fry lhs Cetlateral; Elie tarot witl not be used fn Maus tx in ~ort~utcxiort wtlh any or for any try tl wtll be kept by Buyer at the sat forth for it hat if the t,.ollataral is of a type whkdt is mottle and m in the rorogguler worse of Buyers busirtass u, and cacti 30 days tlrsreafter until lira Co feral is nos be removed frtxn tM state(s) of use inairetad on res and fiom time to time. Buyer further warrants acrd agr~~~ that the title to and securiri interest in the Cdlateral taken artdlor tetalrted by Soler is and shatl terttlnue to be superior to any UUe to or interest in ttte Cogateral now or hereafter held or chimed byy any other party; the coileteral is free from and wtli be kept free from erg Dens Waims, security interests and encurnDranoegs (rwhether rbr err Interior to the interests of Seller) other than that created by this Agreement; notwlthstsndtng Sellers interest In proceeds, Buyer wir not and wui not afk>rr any other party to riortsign, se5 rant, land. anctmtber, filedge. Uenater, serxete or othentiias d~po~ of arty of the Collateral without Setler's prior written consent; Buyer shat do ity Sretler deems necessary err expedbM to perfect or preserve the interests gyranted to Soler order this Agreement and the ftrst priority of such IMar~a~, any Manufadurofs Statement ~ Certlflc,~ats aF Origin rolathy to the Collateral sttatl be immediately dslNerod to Seller and, tl a Certlficata of Title or leVatlon is requksd for enY Item of Callaleral Buyer wNl cooperate with Seller bl obtaining the Certitkete of Tito err rogistraUon dist>>osing the interests aF~uyer and Seger fn the Cdtatsral; Buy+sr shall defend any Pa 2 d 5 d StreurMy Aproemerd dad OafdaAl baMroen LARRY L FOSTER l8uyer) (Seller) which hdudsa, wlthait lfrrritaacn. an item d Cdeterai with the btlowiry aerial rwrtrber: 23Zt12~ee a t;saree ~,,. tyQt ORKiiNAL FOR CITICAPtTAL t ~i ~ vd, Br's Inkials t.t t 1.80948.2.0 XC:200308281$1326 r action, proceeding a< daim affecting the Collateral try ttre interests of Setiet in the Cdbtarai; Buyer sha@ pay ~ amounts payabb in conjunction wkh p or es levied or assessed in the storage. maintenance or repanr of the Collateral and ad taxes, essessrrratta, license fees and outer private chsr'g p conjunction wkh the operation or use of the Cd~b~eral or bvied~2e pas~la9 a~ ~~ ~ ~t ~ ~~~or~eY~rrn~i~onathee C~.oNaterelt amend which are being contested by Buyer in good by apprvP Buyer strati from time to time famish Seller wkh suds financial statements and other irdcrrrastion as Seger may reasonalaly request. B. MSUtiANCE AND RISK OF LOSE. Buyer shag at all times bear ad risk of Ices d, damage to or destrudipn of ttta Coibteral. Buyer Risre~ or immediatey procure and maintain insurerrce on the Colaterel, for the full insunabb value 7nereof and for the Ilfe of Chia Agreement M the form d "AII similar insutsnos (nearing the Colaterel for fire. extended coverage. vandalism, ttnefl and aolpsbn and coMaWrg only those eaudusiorns from coverage which are aoceptabb to Briley) plus such other irtsurarxe as Seller ua~~ h u noa~saatiafa~ to 3eNer eacfi w~r(h a ~r~idard bng-fonn~loss-PaY labb B agrees to deliver promptly ib Selby oertificatea or, if reQ that Salbrs is under such pdncy tapl not be irtvaltdated by act, omiabn or rrogled endorsement naming Seller or asaigro as loss-paiyee and providng n9h d anyone other than r, and corrta&ring the irnstuara M to glue 30 Says prior written notios to Seller beforo arty cancapa of or material dtange b the s wilt be eadhre as to Sdrsr. whether such csnoeltation or change rs at the dirscUon of Buyer or tnsuror. Setlar's acoeptarws of Pdkriss m baser amou is or risks wMl not bs a waiver of Buyer's d~gatbn to procure insurarx:s complying with the provisions hereof tly aRer no8ce from Selby. B s to Seder all d arty physical damage oc cradle hsurarnce for which a charge is stated in tttb or tore is maintained by Buyer in a~coo herewith. indu~ ~ relumad and uneamsd praniums, uP to the amount owing hereunder by Buyer Seller writ not have the right to oanoel any such msuraraoe witiwut Buyers oonaent prior to the occurance d an event d default and the ropossesaion, kris or destrtadion of the Colateral. Buyer di ~n all insurers to pa such sobfy to the order of Seder tar application to Buyers indebtedness to Seller. Seller may, at ks option. aPWy nY proceeds raoeived by r to the final maturvrg hints due hereunder in the irnsrae order of their maturity. 4. PEI2FORNUW CE BY SELLER ff Buyer faits to pertrnm arty of Buyers ab kona. pursuant to Pa 7 a 8 shove, S ~e~rt~ y ~ sue, ~or~ma~ the account of Buyer. Any such adios by Seibr ehas ba m Sellac's aria dasaretiton and Selby shall not bb egated in any way on taetnatf of Buyer shalt not otr5gate Seller to patorrt the same or arty similar ad in the future and shall not cure or waive Buyers taprme or` perforrrwr-oe as an event of dafauk hereunder. Ali awns advanced ar posts and expenses incurred by Selby Pursuant to tlcb Paragraph, hrctudinngg the reasonable fees of any attomeY retained by Seder, shall be for the accaan! of Buyer, shall conslkub Nd edraesa aecurod by Salters security interesi In the Cdtatsral, shale best interest at the sate as apedfied herein in the event d acceleration and. artless Seiler, in Bettye sob distxstion agrees othenrise In writing, shall be irnnmadfatety due and payabb. 10. EVENT OF DEFAULT. Time is of the essence. An event of defauk shad occur if: (a Buyer tails to pay when due arty amount owed by It to Seder or arty afiitiete (inducting, without tiraifalion, any dhsd ar ind'uect paront, subsfdiary or sisslssr e~ly)~ suooessar or assignee d Seller under this Agraamatt or under the feints of any promissory nab dethrered In aar)urtctiorn ttriti- thfe Aprsement w N Sayer tads to pay when due arnmtnt owed by k to 3e1er or any atNiate ((krduding wltirout YrNtatnon, any direct or indiroct parent, subsidiary a sister ardtiy}, strcoesaor or assignee d ^ael~ under arty otirsr document, agreement or frotrumen~ (Y) Buyer faNs to perform in compliance with any of ihs aproerrents hereunder or any warranty made by Buyer in this q~ment is ar becomes inco~ or if Buyer falls to perform or abser(ve rrya ngtsrm or provision to be performed or d~asrved by k urxfer any other dowmant, fnatrument or agreement iu by B r to Seller a an affiliate hrdurti wltfwut limitation, any dked or indirad pacaM, subsidiary or sister entdy), suooessor or assignee of Seder or otherwise aoqulred by Selby a arty atfldale (htduding, wilhcut Wnilation, any direct or ind'sset parent, sutnidiarv or stater eMityl, auooeasor or assignee d Seibr, (c) arty trnfornation, represattation, or warranty famished by Buyer to Seller or b any aflgfate of Seer is inaccurate or irroonect in any material rasped when famished• ( Buyer taecoraee insdvent or ceases th do or is pmhtbited by arty court order or govemmentat action from oonductlng the business in which Buyer is prMr eng ed on the date of this ,qq~~taerrertt as a go' oomcern; (e arty surety or bornding canpanY assumes arr~ryY o~f Buyers responsibilities atria any contract or job; (~ if arty of the EquipmenF ie last, stobn, destroyed, abandoned, or rebceted, used a maintained in vtoiation ofi the terms hereof or if Buyer attains to ooraign. sad, rent. lend or encumber any of the Equipment; ( Buyer fibs a n in ban ruptcy, or for an arrangement reorgar~ation, ar similar relfd or makes an assignment for thrbenefit d crodttars. or applies for'thefnagppointrnen d a recehrorkwbustee for a substanlisl r( of its assets or for arty d the uipment, or aCergtta to take advant~ageec to u~pon~any~of it«ie~~~dateral• ~ thBuy ~oat~ 4~othe~t as a bmpal anktyar Buyer or against Buyer, (t-) arty other attempts th attach, ropoasess fa any party in control of Buyer lees any actior- looking to Buyer's dissolution as a legal aMity: (j) Seger in good kh barreves that the prospect of payment or performance hereunder is knpaired; (k them shag ~e a material dtengs in the avnentNp or control d Buyx; (~ if there shop oaxrr a. n (i) faun. C7 corrtiscation, (iii) reten~, or (Fr1 seizure of oontrd, custody or P ~ Colbterat by any geverxrbrrta7authority inducting, wkitout lama" 'tats an~Y mtan~ state. federal or other goverrmmeratal entity or tat agency or hneMalelty (ap such entidss, agerxties and irrstrurrnsntalkiec shag herainaftar be referred to as 'Goverementat y tin) If anyone In the control custody or possesson of tfie Cdlnteral or the Buyer is aocuced or albged ar drao~ or Itot arabaegraently arraign f4~~~ed or oonvidad) by anyy Gcwarrrrental Authority to tastre used the Cdiaterel is connection with the cornrrnissbrt d any aims (other than a misdemeanor moving violaNor-p (n} them shag be a ~1~ ores ~r tqs~ edny ~ the: (i) condition (financial or othsrwise~, business. perfomrance. praspecis, operations or properties o) fire 8 (ii) bga5ly, ceabl th Agreement, (ii) perfecUeon or priority the ten granted in favor of Seger pursuant to this Agresrrrertt, (hr) abiUly~of the Buver to ropey the lyrist news or perforn i~ ob ations under this Agreement, a (v) rights and remedies d the Seller under this Agrsemart are im red (o) there shad bs a death d a majority owner of Buyer a a gguaran3ar d the obfigationx of Buyer under this Agreement: or (p) axoept for the seeurl~t interest, Iten or reaervatian of title to B~riD ~ SeUers° i~enar~ionrontwl~tlr re~spe ttt~ rya st~mbte~ ~ef wjt a~raami of bye a wa'm~ror o sumcfi defaukCcaa~terasedersrivr~ai, eer ~ auk htti0tane e waiver of arty other default. 11. REpEWEB UPON DEFAULT. Upon the oocumenoe d an event d detauk, and at any time theroaflar as long as the default oorriinues, Seller may, at ks tion, wkh or without tnotics tc Bunryyeerr ((r~ declare tfris Agreement to be in default. (p) declare the irrdebbdraess harourder b be immedia6ely due and payable. (~) dedaro ati dher debts then owiraq 6~y Bt,yer to Seller ~ any aR(liate (indudirg, without imitation, any dined or indksd parent. sut>:idlary or aistar entity), strcoeesor or assignee d Seger to be anmedia due and payabb. (iv) arKxl any krsurance and crad'it arty -efund to 1M indebtedness, and (v) exactas al(of the rights read remedies of a Seger reader the Uniform Cammeraal Code and other appticnble laws, inducting. without limitation, the right to roq iro B r to assembb tM Equipment and deliver k to Seiler at a toe to be desigtrabd~ Shier grftfch b ntiasorrably cnmlenieM to both pp~ibes~ and to lady enter anY pfemises where the Colbesral may be without jud~al process anndd take possession therod. Acoelsration d any or ap indebteditese, H so elected by Seller, shat be subject to ep appticabb laws inducting those pertaining >n rettanda and restates d urtsamad charges. Any properly other ttwn the Cdlateral which is fn err upon the Cdlsriaral at the rime d repossession maybe taken and held wtthoot Ifabdity urtB its rotum is treated by Sayer. An sob or other diapositimt d any d the C feral may be made at public or private sob or through pubic &radim at the option d Seller. SNbr may buy at arty sob and beopnne tits orintar d the CoR~atsral. Unbss otherwise provided ~r taw. any raquiremeM of naaonabls notion which Seller may bs abYgaUed to des regarding the sob or other dispeaition of Colateral arW be met if such ratite is given to Buyer nt bast tar days berms the lime of sate or other dispoakfor. ~uyK a~aas that Seger may bring arty bpai Wocesdings d dears try to adores ttw PaYn>ent and pedamanoe of Buyers obigafbna hereunder in any court fn the State shown h Begets address set froth herein and service of process raay ba made upon Buyer by rending a Dopy of firs sumnans to Buyer. Alt notloes to B to this q~nt trip be mrrsiderod rsoeived when delivered in person (~Mdud(rg ~y f~arairn8e fransmbalen or mated to Buyer at t1w addtsss of~yer oonTained in $ria Apnerwnt or at arty address talk designated by Buyer to Seger @- writing. '17rs /Ding by S~ df a scpon or with respect m the Colaterol or any d Buyers ofaGgrttione ltersrtnder shat rat constitute an electlon by Seder d Seders ronaedtes or a wai+rer d pets b th take possession d the Cdbtarsl as provided above. Expanses of retaking, holding. preparing for sob, salWtg and ttrs ilea chap brclude (s} the rsaeonabb fees of amy attorneys rofained by Seller. (b) any amounts advanced arsacperases irtaared by seder pursuant to Paragraph 9 harod and (c all ocher bgal end other expenses incurred by Seller. ~naggrees that k is fiabb for and wN txomPtiY t~Y an defidancy r'ssukirtg from arty dtspositiari of Collateral after Cogat~l wi~ttn~wt g~ ties eslo~tiae Copat~ai. ~rar ay jm~any~irar~iran~tiea~obf tl~tle, p~esmsidmr quia~ djt rt~iarrtm or tt~ie~lpie yThs procedure writ not be oonsdered to adverosly affect the cornmerdat reesonal>ilenesa of any sob d the Colateral. 12. 1MISCELLANEOU8. (A) M d 5ekers rights hereunder are cumulative and not akemative. (B) The htdusion of a trade name or dfvisbn Hama in the identification of ggu~yy~~r~ hereunder shall not Whit Seller's right, aflsr the ocxarrertoe d an event d default. to prvoeed trgak~at all d Buyers easels. inducting those held or uaedby Buyer ittdividua or under andher trade or division rotas. (C) N wrmitted bw, Buyer agrees tiaat a caabon, photographic orother ro action d this Agreement ov of a finartchg statartant may be tiled as a flnandrg statement (D~) Seller may oansct tmterrt errors heroin and fpl in blanks. All d the tarns and provisions hereof shad appy to and be bbtdtngupon Buyer, ks hairs. personal rap awrxssars and assgns and shad Inure benefit d Seller, its suoosasas and assigns. (F) Buyer and br hen w~aivs any right do 1Mal by ury In artyr sctiort a pnoe;eed reladnp fa this A~nanerrt the tramactlon eonlamplatad hereby. (G) H apowad by law,'Itae reasonable toes d sttpmeyy" retained by 8elbr shale irxritade the amour of any tlat~, retainer. cantingen~te~d to ttds ~~irret «rotlaedVan~sa ilo~ ns yoorontbathmplat~ed by th~b%prst.~(M)~ S ai arms ~Mhtsng aid ~ moo!' ~~ Prosecution or defense of any ptlgatfon Agree Pape 3 d 5 d Saa+rfy AgrsamsM daMd 06fa010S t~etvwen IARRY L FOSTER t8uyw) and CLUGtiTON Aft AND TURF er (tietler) which indudsa, vrtewut sardbtlion, an item d f:aselerat with the idiorrirap serial rearrest: s- szoae reset- tarot Buyers In ' b CommT raor-Veb i.ta i~'~" ~' ORKiINAL FOR CRICAPRAL 1.6tt9482A XC:20030828161328 hereby waives arty exemptions or appnlisals. (I . No waiver or chartpe fn this Agreement or in any related note shall be Dlndm~ upon Soler, ar Sealer's assignee, unless such waterer or change ffi in and signed by orb of 11s affioere and any such waiver or change sha11 than ba effecW~e only ttport the terms and to the extent provided In such ~~~ ( The aooeptanoe by Seller of airy rorr>rttartoe tram a party other than Buyer strap in ra way consMtute Seller's consent to the transfer of of the Co to such party. (tC) My captions or tteadirga ktduded in tMs Agreement era for catvenienos of reference only and shah not limit or othenwisa affect the mesrting of any provision oortfahed in this Agroemsnt. (L) Any Provision contained heroin which is contrary to, prohNaited by or invalid under spplkaWe laws or regulations shah bs deemed InappNcabk~and ed iterefrom, but shell trot invalidate the remaining provisions hereof. 13. ASSKiNMENT. Buyer shall not assign This AgreemenE witl-out ilia prior written cortsertt of Salver. Soler or any assignee a successor of Seller shall have the right to transfer, sell or assign all or any portion of this Agreerttant or the indebtedness artdlor obRpatiorrs twretardar, wittrout notice, advtowledgenrett ar consent from Buyer. l~pon assignment, the term 'Se1er' shall mean and rofer m any assronee who is the holder of title Agreement. Ths assf~rtor wiN not be the assignee's aaggesnt r any purpose. Buyer waives and wUl rot assert agabret arty aasiprtee of SNler any debits, counterdaUn, claims n reooupment, abatement, redtxxllon defenses or set-offs for breach of wartanty ar for any other rosson which B could assert against Seller, except deferreea which cannot ba waived usrder the Uni)am Commercial Cade. Upon ful payment oT all oblgations seared~th'm Agresrtrent, the assignee nay delver aN original papers to Mrs assignor for Buyer. DEFAULT HEREUNDER). This power is led with an inlerost and is arevocabls so forg as Ntdetttedrress remaets unpaid tram t3tryer m seller. Buyer agrees m exevete and deliver to Seiler, upon Salleet's roquesl, such docurrteMs, w, rec~rrds and asrwranoes as Boller deems rlsoassary or adviaeble for the ooNirmation or perfection of Mrs severity interoat in Coga6sral and SeNst• riDhb herourxfer, indud4p such documads, Mrtitings, nroords and aesurancss as Se1er matey ~uke for fling ar reoordi B authorizes Ssibr a y a deslgneeanofY Seiler or any asatgnsedof~~oll~er (or ar~y designee a~s~s~ee of SeNr (oar any des~ae ofis~de)s at fif~ng~~CaUat~ar~a~l. B~uyeratr~~ ~r oar others 1h~an ttr~terelydeaaibed herefr~i tier or arty 1S. CHATTEL PAPER. This spedflc Severity q~ merit is m be sole! oraly~ ~to~~ASSOCIATE8 FGt8T CAPITAL CORPORATfON CITICAPRAL COMMERCULL CORPORA710N, or one of their affiliates or wbsldlariss ("C!1'ICAPITAL") and is subject to the security IMerost of CITICAaITAL. The Doter coppyy of this Security Agreerttertt which constitutes Chattel Paper for aN purposes of the Uniform Commerdal Code is the copy marked "DRIOINAL F Cif (CAPITAL "whk:6 k delivered to and held by CITtCAPITAL. Ar-y dtanoe in Ure name of the assigroe of this Secruity Agroement frflrn CITICAPITAL shah render the copy of this Severity Agreement so VOID and of no Toros and effect. No assignee ar secured party bthsr than CITtCAPITAI wNl under any dreumstances acquire arty rigFits in undue or to rs Securihr Agroement or any sums due hereunder. Any assignirrertt or transfer of the Agroentent to arty assignee or secured party other than Cfj1CAPITAL violates the rights of Cfi1CAP1T 16. PRNACY WAVER. Selby ma receive from and disclose to any Individual. corporation btlsinels bust assoolatfon, company, partrtaship. jokd venwn or other entity (herein mNectlvsty, the ~~~ inckrding, without IimMl The general of t}te S~ellsrs.parant or airy a to or arty subsidy ~ Seller and arty L>redit reporMrg agency ar otfi~ aril ty wtiethsr or not rola~ to SeIMr for ar+yp rpose~onrwtlan about Buyers aaoourtts <~dit appNca'UOn and credit axpsrierros with Seller and Buyer authorizes any 6t >p lekass to Se11sr any fntrfomtation related to Buyers accounts, ae<3N sxpsrisnoe and account information regarding the Buyer. Thla shill tae confinuin~autlwrtzatlort for aN pnasarrt and futurr dlsdosuras of Buyer's acopunt Irrfomla8on, cradH a M.atton and credit axpertertce an Buyer made Seller, or arty Entity ragtraeted b release such IttforTrlatbn to Sailer. 1T. OEBIT TRANSACTIONS. Salter or any a~ssiggnee or other holder of this~A re~gi~~ment (colectively 'Holds') may but shat trot be required to offer Buyer file aptlon of payl~any of Buyers obligations to Fldder through printed cfiec~CS ('fit Transadions~drawn punuu tar t to this authorization upon Rovers chedting accarM,t usry Buvefs ctteckktg account nwr~er. bank touting Dods and other Ltfonnatiort which uyr provkfas to Hokfer odor to Itte first Debit Transaction. Buyer a rthorfzM fielder to Initiate Debit Transactions from Buyers dtsckutg aocourtt let the amount naoessary to pay the fnstaNmartt payments, deNnquency charges, or arch other amounts as may now or hereafter be due hereunder or under arty other present or fuhiro~aaBBraenwrtt with ar whidt is held by Fiotder, plus a fee of ten do0ars (510.00 for each Debit Transaction initiated by Holder. In the event appNcable law prolNbRs or roshicts the amount of such fors, the fee chergeabb under this n shah be limited ertdlor restricted in aooordanoe with applksattte Iaw. HoWar may from time to tiros increase ordecrease rite Debit Transactbn fee upon p~ipr written notk~s addressed to guy~rs last known address as shown an the reports of Holder and such increase or decease shah be etfecMve as stated in the written notice. Unless protdblted by appNcsbb law. Buyers contlnued use of Oabit Trsruactions after the affediva date pact in audt notice shah cortdus establish Buyers agreement to pay the new Debit Tronaactiort fee staled therein. 8uyar authorizes Holder ~ arty oftioer~itrtployee a desipnes of Holder endorse Rovers name as drawer on arty printed check drawn in aocordsnae with this auNtarizatYon. UntN canoeNed by Buyer, true autltorl:atron shall be vaNd for aN Debit Transactons Hakler irtidatas in payment of Boyars obligations hereunder or trader arty other present or futuro agroemsnt with or wltkft fs held by Holder. This atrthat¢ation maybe cartoeled at any lime by Buyargivutp at Isast three (~3j busktess days prbrwrttten ratios to Buyers bank and Holder. PaymerK by Debk Transacions to trot required by Seller nor is Its use a factor in the approval o- asdit. 18. LOCATION OF BUYER ~~}} If Buyer is a corporation. Nmited oorttpa Nndted or other isterad orpanizatlon, its state of organizatkxr is in the stab set foittt immed ttr~yy tx/bw its s rtattiro on tits last gpasppee of~fris Agrserrterr~ (~ fF Buyer is an irrdividuai. hiaRrer primal place of raaktertce is at the addrosa set forth imrrt~4eyr below hf~er ai~taturo an thslast page of this 1lgrsertterd; (Ni) tf r b anizadon, 7is piece of txtsirteas or tf ft has more Mtan one place of business its chief executive otfios, b located at the address set forth imrrted~ below it"a sigrtaturo on the last ps~e of tlth Agroement. Buyer a~Qress that k wNl not witltout the prior wrkten consent of Se it~st~ d organizatiat if it is ~r corporaticrt, timksd Na6'i imited~srtnershrp or other organization or the bcatiaon of ks ch axes amps a its pros of buehtsss tf N is an a anizetion. tf Btryer ism an it dlvWual, Buyer must notify Seller n wrNing o~ a change in hidher prirtdpd place of residsnoe 30 days prbr to such change. ~ 18. PAYMENT PROCESSi NG. Buyer hereby agrees trial any payments made by Buyer herwnder by check and reoelved by Seger at an address other than the address spsdflsd on Mte related invoice may be replaced bar Soper with a substNute instrument of equal amount and presented to Buyers flnandal institution for payment from the account roferertoed on the dredt from Buyer. ff Buyer sends airy psyr~~ hereunder by check to SeNer at any address other than Mrs one spedfied on the rested hrvoioe. then Buyer shall be deemed to have suthartxed SNfer to aubsNtube such check wkh an htstrumant d equal amount and present the substitute instrument to Buyers narrcfal instkutfan for payment fivm the account refersrtaed on Buyers check. Pa e 4 of 5d /-~e merit dated tIBA0103 between LARRY L PQa1ER rairvr) and CLUG$~~yp TURF INCENtPORATED (Seller) which Ino~dea, witlwrrt IfineaUon, an item d Collateral with eve robowftp serial number. 3 eZ0.99e Rar.1?A1 Cwt ~M (Buyers InMI'els~ t.tt ORKiNAL FOR CRICAPRALf,~ 1( ~ 1.80!348.2.0 XC:200308281613T6 Kr ~ DELNERY AND ACCEPTANCE # COLLATERAL (Check Appropriate Box) On ' Z9 • ~ the Collateral was delivered to Buyer with all installation and other work necessary for the proper uae of the Collateral le~C~ arx! de~ery wawa ly y paooa~tad bey B~uy~err, the Collateral was inspected by Buyer and found to be in satisfactory condition In ap The Collateral has rwt Yet been delivered to or accepted by Buyer and. upon delivery. Buyer agrees to execute a delivery and acceptance certificate in a Farm acceptable to Seller or Seller's assignee. THIS WRITTEN AGREEMENT REPRESENTS THE FINAL AGREEMENT BETWEEN THE PARTS AID MAY NOT BE CONTRADICTED BY EVIDENCE OF PRIpp~~~,, CONTEMPORANEOUS, OR SU68EQUENT ORAL AGREEMENTS OF THE PARTIE8. THERE ARE NO UNWRITTEN ORAL AGREEMENTS BE7VYEEN THE PARTIES. Buyer and Soper agree that this is a live page agreamerd and each page hereof constitutes a part of this agreen-ent. NOTICE TO BUYER - DO NOT SIGN THIS CONTRACT BEFORE YOU READ IT OR IF IT CONTAINS ANY BLANK SPACES. YOU ARE ENTITLED TO A COPY OF THE AGREEMENT YOU SIGN. Buyer's Soda) Security or Federal Taxpayer identifirwtion Number is: 180809820 srrd Co-Buyer's is: Buyer hereby acknowledges receipt of an exact copy o~3oro3 of this contract. owed CLUGSTON AG AND TURF WCORPORATED Seller: DBA UYY D BOBCAT ,-C rdie ~.~oulal~' pt mponearL auFoAtsd pertr Mar ' s;,e,r,sw onprses eis. r pM,srsi:o. a tamer o••rr mut:Yn' B'awr orPM~. e1n.,rlidti) 2231 SOUTH MARKET STREET Cesar Ade~m) MECHANICSBURG PA 17055 (aqr• sm..ra ao cans LARRY L FOSTER ~Y~(s) DBA BUTCH'S CONSTRUCTION e~.w va•wor e.rl:v~ •~a.lo.a+d w.. rina.idirl,/rn irri~Adrl rhaW aipn ~d rwrrNlaaslMridrrrY~ Tide INDIYWUAL nfmpaatim,.lo6~.aobmat.ip+sa.howcawr+.1>4.ry.risrdD~.wn•+ perrrrmutstprt rwrlyoprrr,ahowwhtclt.) ey Title (r oobursr, oooersrara aoglior. ~ ors nrd r,owwNda State of Oryan¢ation: Prfndpal ReslderroelChiaF Executive OtficelPlaoe of Business: 80 CONRAD ROAD CARLISLE PA 17013 ta4r, coulrrr. sir-, am ap ooay osnolas t.I-wer t. FD pips s er s a Ap and CLUQST~ON~/Ki I[Nb T~tJRF INCORPORATED ~~~ (Seller) which irdudaa. ~Y~ifout IlmNetlor4 an stern d Codalarai witty flw for n0 aerial M+ SIN 43~31L16a ~Gomm1 Nan-~~ Various Slessa 1.11 ORIGINAL FOR GITICAPITi4; $0948.2.0 XC:20030028i81326 ~,Uta-"e9-2a03 15: S3 FP.G^1: rr + CaP.OUr 1 8~3 t~10 4101 TrJ ~ 71724~9tJ213 P. E~3 ~~~ ~n~~~~~~ lictant;iat Setvrct:s DOCUMENTS (rJtedc appropriate; Dated ASSIGNMENT OF 5ELLER (pLtALtFY1hG ANtpI:NT AIVD PERIOD) Debtor LARRY L FOSTER ~ Retell Instslimeilt Contract __ - © SecurftyAgreamert °8f3Q~? _. ~ Promissory Nate ___ _.~-._..-- ~ Guaranty OBA BLITCM'S COiVSTRUt:TiDN Street aOCONRADROAD _ .~-._--- •- sty, State 3ZIP t`ARUSIE PA 17019 p _ ~ Preeient 5&'.9nCi s _ :e.sas.xo For value rxelved, the undersEgned ("kssignot"y hereby aelis, assigns and transfota to INGc'RStJLL-RAND FINANCIAL SERVICES, a dMsion of CitiCapelal Cornmercral Corporation, its sucaessoro ant aasrgns ("AssiSnee'~, ail Assignor's right, tide and inte-set in and to (a) the attached ebore•dssigneted sec~rlty agreement, retell l;lstaUment cor:trect, chattel inert age or other title retention or Ilan lnatrument (ihc "Sectmty Agreement')) between A~pnor and the debtor named above (`Debtor'), (bjgarty notes, guaranties and other documents executed in catinection with the 3erxxkyx A rearnent (herein, ;rich the 9erxxity Agreamant, called the "DoatmanlC), c) all amounts due and to bew:rtrr due under the Dowments, ~d) the property in which a security tntenast or ('tan is granted m or rase by Assignor under the Security Agreement (the "ColtaberaP), and (e) a!l of Rsdgnar'a rl his and retnedisa under or sn connedfon with the Doa.nttents, including the right, wtthtxtt natioa to Ass(gnw and wimout affecting Ass~gnor's liability hereunder. (I) to collect arty and arf amounts owing under the Documents, (iiy to endorse Assignor's name on arty note or remittance received, (iF) to release or disdtarga Debtor or any alher persons obUgated under the Documents, on taints sa6afactory to !~ssrgna0. by operation of taw or otherwise, ('cry to ss:tle, compromse or adjust are and aU tighLS agttitst and to grant extensions of tune of payment iG Debtor tx any other parsons obligated tinder the Dxurnen~, and (vy to take any other adian Assignor might take but for this aasigrment Asl3tgnar warrards that: the De~cuntants are genuine, coUectib e, enforceable and in all respects what tney purport to bs; a!I signatures, names, addresses, arrtottrtts and other satamertts and facts contained in the Documents and herein ere Vue and correct; the Col:aterai was sold to Debtor !r a bona Ede tine sale trensadion; Debtor has paid Rte down payment in cash or as lrihenvise set forth in tits Securely Agreement. and no pert thereat was loaned directly or indirecty byAasignor; the Collateral was delivered in satisfactorryy condition to Debtor on the date set forth below, was properly installed if required; and was ac~spled by Debtor; Debtor is not in defisult under ins Security Agratxttent; aN parties b the Documents here ffie capachy to contract artd none of such parties is a mine t the security intemst, lien and -oaervatlon of title evidancod bylhe Securiy Agreement are valid, first, prior to all others and et'fe:live aggarnst ail persons; Asslgror hsa caused or will pranptly cause such actions or procedures 1o bo taken as are required or petmitad by atsrtuie or regulation to perfect such security interest, lien and reservation . of ttt;e to Assignee's favor, incktdirtg, withot:t limitation, filing flrraneing sratements, recording documents end obtaining Cert;ficafes of T'rile diaJasinpg Assignee's irteresl; Assstgnor has fu0 title to and the right to slit and assten the Documents and lho security irteresi, lien and roserved tRte evidenced (hereby, artd this assignment conveys the seine free std clear of a>' liens and encumbrances ~vltatsoevtar, the Documents are and will continue to be froe from defensex, cctnter-c:a~:ns, cross,daims and set-alts; end Assignor will continua to be liable hereunder notwttnstanding Assignee's waiver of er failure to enforce any of the tears, covenants or condtllons contained In the Documents or any release of, or failure cut the pert of Assfgrtee to realize upon ar protect, the Col!atera! or any lien thereon. Assignor agrees chat Assignee may audit its books and records retannQ to the Documents. Assi~gnee will have no obligation of Assignor as seller under the 3ecurMy Agreement. Unless otherwise agreed under the provisbns of any apD;fcable undarhrirg a merit, any amounts retained by Assignert as a reatrve or hotdbadc wilt be held by Assiggnee as securty !or but not in IEeu of tdFttee perfarmanca of Assignors obligations under this ar any other ograement with Asalgnae or any affiliate of AsaignAe, and will be paid to Aaslgnor without interest when all direct and ail conGnger-t obligations of Assignor, whether heretatdar or under any other agreement with Asttignes or any rltli6ale of Assiprree, have been satisfied. in fire ev~srt of any detauel by Assignor in the performance of any suer obligations, Aasigl'tes may apply any reserve, holdback, exeunt cr property in Attsignee's possession toward aatlsfectbn of such obligations. U Assigner elves a rebate of A.nance ehergA computed on the total finance charge payable by Debtor, and such rebate la greater tltatl s like rebate oompu eel on the portion of the finank:e chi.~ge to be earned hereafter by Assignee, Assgnor wilt pay to Assignee upon demand the difference between such rebates' the portion of She finance charge io be earned hereafter by Assignee is the excess of (I) the amount ro lxi! COIlelled under the Security A,gree~nent end retelned ter Assignee, over (ii) iha amount paid by llsaignee to Assignor for the Securtty Agreement. Assignor waives presentment end demand roc pa mint, prowst and notice of nonpayrrsni, and subordinates all rights AsslQnor may now or hereafter have a afirst Debtor to any rights Ass~nes mzy now a hereafter have against Debtor. Assignor will have ro atrtharty to, and will not, without nae's prior written consent, accesrt collectforts, repossess, substittte or consent to the roturn o` She Coflateral, or modify She farina of the sofa. Assignee's krlowledpe at any time of any breach of or noncompilance with any of ?he foregoing wiN net corslitute any waiver by Assignee. Assprta waives rohce of acceptance hereof. R any of the foregoing warranties ors untrue, or ff Assi oar breactes any provision hereof, cr if Debtor faits ro pay any payment on the DoctuneMs when due, or if Debtor is otherwise in dtafaul~ under the terms c. the Otx;urreMs, or If Debtor or Assignor becomes insolvent or makes an assignment for She benetif of asdilars, or if a petition for a ratxiver or i~ uaniattptey is filed by tx against Debtor of Assigner, then to any such event Assignor will, without requlrbg Assignee to proceed against Debtor or arty otner person or any security, repurchase the Documents on demand and pay Assignee an amount, In cash. equal to the balance remainlrtg unpaid thereunder plus arty expenses d oopection, rr~pOSSessior,, transportation and storage (inGudin~reasonably attorney's fees and court coats) incurred by Assigrtea, test any customary refund by Assignee of unetarrted finance charges. per. such payment by Asslgnar, Aselgqnee wSC reassign the Dtxximents upon Asalq~O~'s request bterefor, provided Ala~iggnnor is not L1en ottterwiss in ddsuft to Assigrtes. ANY REA£SIGNMENT OF THE DOCUtvIENTS OR THE COLLATERAL 8Y ASSIGNEE N,1LL BE WITHOUT RECOURSE dR WAWRANTY OF ANY KIND. In the event the Dxumerus have bean reassigned by Assignee to Assignor, Astsig~r +v!II have the rent to rase!( the Colateral, provided, however suc!t right will not swat, or if it exists, Ppape~ f o12 or Aaraianmaa of SMNr dabd ~~ twtwwn ~_,~_ Ct.UG5rOM AA6 ~ TURF lICORPOA/.T~ (~lynor) one CRIGplu1 Commercial Corporritlon (Aasiaroe"'~"~r 9~ ?rp00S +.00 ir-parsoU-Rand Financial 5ervicvs .s a dNision of Clthspicsl Cor:+rrlrirctal Leasing Corpaadon. 1.80848.1.0 XC:70090LZ"181928 EXHIBIT ~ ~~ ~t1 9 stir,-?o_2a03 1x:55 FRD"9:CITGRDUF 1 898 61}7 4191 TD:717c459F~28 F,3~3 witl tie witndrawn if A3Ef nor bermes insolvent or cBases to do business as a going concern or makes an ass'igrtmenf for the benefit of creditors, or it a petition far a receiver cr in bankruptcy is filed by or against Assignor, or if any of the foregoing wsnsntiss are untrue, or if Assignor breaches any pr°?ision hereof d the Net Loss (as hereinafter defined) whh respect to the tr8nsacKi~t asstHned herouider exceeds an erssount equal sC t5 ,Assignee will reimburse AsslQnor an demand for an amount aqua! to su;h excess, provided however, thri Plat Loss provisions hereof unfit not apply and Assignee vn@ not br required tD reimburse Assignor for any such excess it Assignor becomes insolvent, or otrases to do business as aroing ecncem, or makes an assignmart nor the bsneln of creditors, or it a petition of a retalver or En bankruptcy is Lied by ar against Assignor or If Assignor is then othcrwT.se In default to Assignee whether under tiffs assignment or any other agreamant or it any of the fa!egang warranties a-e urdrue. The term "iVet Loss" will mean the gross amount paid by Assignor to Assbpnee for the repurchase cf the Doaunrnts minus off amaasts remvsred theroon, whether from the Debtor, a guarantor, it+e resale al the Collateral or otherwise. tt is aggr+eeC that na bss wiY ba considered to have tx3en suBerod by A>,ignor if, within 1Z0 dayys a19er Assignee's rei;ueat fcr repurchase of ttte Documents, Assignor fads to condude a boas fide Se1R of :he CcJtaterat, to an indapendettt purchaser, and to establish end rarefy Assignee In wrlUrtp of ~e amount of amy Nei Loss. ft is further agreed 'hat Assignor will not bs dt:emad to have suffered a Nrt Loss from the resale of the o8ateret unless Assignee is [~ advised ~ the price Assignor intends to acoetK for such resale at least SO days in advance afAssignor's acceCting such price and {U) given the opportunity to purchase such Collateral from Assigrwrfor the same price. Natwtths;arding the foregoing, rf Debtor pays the first bC ~nstaliments due urxfer the Security A®reement within 3t) days of the respective due dates of each such instalimenf without benefit of extension r. rewrite, Provided Debtor is not insdveni, has not made an assignment for the bereft! of creators, and no petition for a receiver or ~ bankruptcy has been *led by or against Ootxor and Debtor fs not otherwise in default under the terms of ltts Documents, then In such even, Assignor wNl thereafter Oe relieved of i>v ottpgatlon to repurchase the Documents as set iarlh barest, except that Assiggnor wil! continue to be obligated to repurchase the Documents untll ail amounts payable under the Documents have been paid In full ifAssignor becomes insotverri or makes an assignment for the benefit of creditors, or if a petmrxr for a receiver or (n bankruptcy Is }fled by or against Ass!gnor, or if any of the foregoing warranties are untrue, or Ii Assignor breaches any provision hereof. The Collateral was detryerers to Debtor on ~ ~~ ~ ~) CLU6STON AG AND TURF INCORPORATED Pay• 1 or i of AaarenmaM of gaffer 6atatl e813N03 _ ay„~a CfeCapiUi Gommardal Corporation (Aasipniarr-~ } }woos •GCn ASSIGNOR DbA C~UY}ft1ERl.ANO BO13t:AT ay ~ /~ ~ _ _ _.. - ------ Title ~rY,a~~rSr -- CLUOETON AO AND TriRF gICORpORATt~ (ASafynorl and }.80348.1.0 XC:20031tB26151326 UCC FINANCING STATEMENT FOLLOW INSTRUCTIONS front and back CAREFULLY A. NAME 8 PHONE OF CONTACT AT FILER [optional]. Pam Jones 972-657-8497 8. SEND ACKNOWLEDGMENT TO: (Name and Address) f CitiCapital Commercial Corporation 8001 Ridgepoint Dr. Irving, TX 75063 FILING NUMBER: 20031042628 FILING DATE: 19-SEP-2003 PA, Secretary of Commonwealth I THE ABOVE SPACE IS FOR FILING OFFICE USE ONLY 1. DEBTOR'S EXACT FULL LEGAL NAME -insert only p~ debtor name (1 a or 1 b) - do not abbreviate or combine names 1 a. ORGANIZATI ON'S NAME OR ib. INDIVIDUAL'S LAST NAME FIRST NAME MIDDLE NAME FOSTER LARRY L 1c. MAILING ADDRESS 6O CONRAD ROAD CITY STATE POSTAL CARLISE PA 17013 1d. TAX ID #: SSN OR EIN ADD'L INFO RE te. TYPE OF ORGANIZATION tf. JURISDICTION OF ORGANIZATION tg. ORGANIZATION ORGANIZATION DEBTOR 2. ADDITIONAL DEBTOR'S EXACT FULL LEGAL NAME -insert only 2ng debtor name (2a or 2b) - do not abbreviate or combine names OR 2b. INDIVIDUAL'S LAST NAME 2c. MAILING ADDRESS 2d. TAX ID #: SSN OR EIN ADD'L INFO RE Ile. TYPE OP ottGANtcA nuN I a. JVr<~aUw nvw yr vnvnn~c.~ ~ w~. ORGANIZATION DEBTOR I I 3. SECURED PARTY'S NAME (or NAME of TOTAL ASSIGNEE of ASSIGNOR S!P) -insert only 4IIfl secured party name (3a or 3b) 9a. oRCANIZATION's NAME CITICAPITAL COMMERCIAL CORPORATION 4. This FINANCING STATEMENT covers the following collateral: - Together with all present and future attachments, accessories, replacement parts, additions, and all cash and non-cash proceeds thereof. 1 HYDRAULIC MINI EXCAVATOR MODEL 325 SN 232312366 5. ALTERNATIVE DESIGNATION [IfapplicableJ: LESSEE/LESSOR CONSIGNEE/CONSIGNOR BAILEE/SAILOR SELLERIBUYER AG. LIEN NON-UCC FILING 8. ESTAT RECOR Attach tAddend ~m recur or reco in if a licabl 7~ ADDITIONAL FE tionnl a for s All Debtors Debtor 1 Debtor 2 g. OPTIONAL FILER REFERENCE DATA 228616 CC ssss2~s EXHIBIT FILING OFFICE COPY -NATIONAL UCC FINRNCING STATEMENT (FORM UCC1) (REV. 07/29198) \ I ~ / l a OR 3b. INDIVIDUAL'S LAST NAME FIRST NAME MIDDLE NAME SUFFIX sc MAILNG ADDRESS g001 RIDGEPOINT DR CRY IRVING STATE TX POSTAL CODE 75063 COUNTRY USA any if any NONE USA f~ 1n~~ersall~nd. Financial SerVic6s SECURITY AGREEMENT (Conditional Sale Contract) The undersigned buyer, meaning all buyers jointly and severally ("Buyer"), having been quoted both a time sale price and cash sale price, has elected to purchase and hereby purchases from the undersigned seller ("Seller") for the time sale price shown below, under the terms and provisions of this agreement, the following described property {herein, with all present and future attachments, accessories, replacement parts, repairs, additions, and all proceeds thereof, referred to es "Collateral"): (1) BOBCAT SKIO•STEER LOADERS S150 S!N 526916991 CAB, HEAT, ACS The Collateral will be used primarily for:©business or commercial use other than farming operations;^ farming operations. When not in use, the Collateral will be kept at: 60 CONRAD ROAD CARLISLE PA 17013 and, when in use, will be used only in the following State(s): PA -- PAYMENT SCHEDULE: Buyer promises to pay Seller the TIME BALANCE (Item 7) in 60 installments as (TOUT No. N Inetakmw) For equal successive monthly installments: (e) $ 389,57 on 06/01/2005 (Dale) and a like sum on the like date of each month thereafter until fully paid, For other than equal successive monfhly installments: (b) provided, however, that the final installment shall be in the amount of the remaining unpaid balance. INSURANCE COVERAGE LIABILITY INSURANCE COVERAGE FOR BODILY INJURY AND PROPERTY DAMAGE CAUSED TO OTHERS tS NOT INCLUDED IN THIS AGREEMENT. PHYSICAL DAMAGE INSURANCE COVERING THE COLLATERAL IS REQUIRED; however, Buyer has the option of furnishing the required insurance through an agent or broker of Buyer's choice. Check if Applicable: ^ Buyer requests and authorizes Seller to obtain insurance coverage in the nature of "All Risk" insurance (Fire, extended coverage, vandalism, theft and collision and containing exclusions from coverage acceptable to Seller) on the Collateral for months from the date of this Agreement, and for the premium of $ 0.00 with a $ 0.00 deductible per Dascriptlon of Trade-In: Gross Allowance S 0,00 Less Amount Owing To: ..................................................................... 3 0.00 Trade-In (Net Albwance) .................................. S ................... 0.00 _ _ (Enter above and in 21D)) 1. (a) Selling Price „,,,,,,,,,,,,,,,,,,,,,,,,,,,, S 20,800.00 (b) Sales Tax .............................. $ 1,248.00 CASH SALE PRICE (a + b) $ 22,048.0 0 2. (a) Cash Down Payment ............... S . 2,000.00 _ (D} Trade-in (See above) S 0.00 (c) Net Rental Credit $ 0.00 TOTAL DOWN PAYMENT (a + b + p) $ 2 000.00 3. UNPAID BALANCE OF CASH SALE PRICE (1 M6fua 2) S 20,048.00 4. OTHER CHARGES (a) Physkal Damage Insurance .,,.... S 0.00 (b) Oflldal Fees ............................. S 0.00 (c) Other ...................................... S 0.00 (Describe) TOTAL OTHER CHARGES (a + b + c) $ 0.00 5. PRINCIPAL BALANCE (3+4) $ 20,048.00 occurrence. 6. {a) Finance Charge •,. S 3,151.20 (b) Administrative Fee ,,,,,,,,,,,,,,,,,, S 175.00 DELINQUENCY CHARGE. For each installment not paid when due, TOTAL FINANCE CHARGE (a + b) $ 3,326.20 Buyer agrees to pa~to Seller a delinquency charge calculated thereon at the rate of 1'/: o per month for the period of delinquency or, at 7~ UNPAID TIME BALANCE (5+6) $ 23,374.20 Seller's option, 5% of such installment, provided that such a s. TIME SALE PRICE 1+4+s delinquency charge is not prohibited by law, otherwise at the highest ( ) -•~-••••••• ................................. S 25,374.20 rate Buyer can legally obligate itself to pay and/or Seller can legally Annual Percentage Rata ............... .. 5.90yy collect. ...................................... Cast of Credit (Finance Charge plus Administrative Fee) _ _ _ B_21 eA Page 1 of 6 of Security Agqreement dated 04129!05 between LARRY LFOSTER - '-' - (BuYed and CLUGSTON AG triND TURF INCORPORi4TED (Seller) which indudes, without Ilmitatbn, an item of Collateral with the fdlowtng serial numb-er: 526916991 3.621826 Rev.p9l2p0e ORIGINAL FOR CITICAPITAL Comm INon-Veh-Vanoua Stelae (R.D.) 1.17 EXHIBIT .205643.1.0 XC:200504271544sa Ingersoll-Rand Financial Services is a division of CitiCapital (t ~ ` ~ tal Commercial Leasing Corporation. Buyer's Initials ~t~ J 1.0 THE COLLATERAL 1.1 Down Payment and Disclaimer. Buyer represents and warrants that (a) any check or instrument presented to Seller as any portion of a 'Cash Down Payment" indicated on the first page of this Agreement represents funds immediately available to Seller and will not be retumed or dishonored for any reason; and (b) Buyer has title to and the full right and authority to convey title to any Trade•ln listed on the first page of this Agreement and, upon payment to the party listed on the first page of this Agreement (rf any) of the amount indicated, Seller shall have title to the Trade-In free and c{ear of any lien, claim, security interest or other interest of any party other than those claiming by through or under Seller. There are no warranties other than those made try the manufacturer of the Collateral. SELLER MAKES NO REPRESENTATION OR WARRANTIES, EXPRESS OR IMPLIED, AS TO THE QUALITY, WORKMANSHIP, DESIGN, MERCHANTABILITY, SUITABILITY, OR FITNESS OF THE COLLATERAL FOR ANY PARTICULAR PURPOSE, OR ANY OTHER REPRESENTATION OR WARRANTY WHATSOEVER, EXPRESS OR IMPLIED, unless such warranties are in writing and signed by Seller. Seller shall not under any circumstances be liable for loss of anticipatory profits or for consequential damages. 1.2 Collateral Receipt and Use, Buyer warrants and agrees that: the Colla#eral was delivered to and accepted by Buyer in satisfactory conditiwn; the Collateral will be used solely for business purposes; the Collateral Is free from and wIU be kept free from alt liens, claims, security interests and encumbrance other than that created hereby; notwithstanding Seller's claim to proceeds, Buyer will not, without Seller's prior written consent, sell, rent, lend encumber, pledge, transfer, secrete or otherwise dispose of any of the Collateral, nor will Boyar permit any such act; the Collateral wilt be maintained in good operating condition, repair and appearance, and will be used and operated with care, only by qualified personnel in the regular course of Buyer's business and in conformity with all applicable governmental laws and regulations; the Collateral shall remain personal property and not become part of any real property regardless of the manner of affixation; Ssller may inspect the Collateral and all books and records relating to the Collateral or Buyer's performance under this Agreement at all reasonabte times and from time to time; the Collateral wilt be kept by Buyer at Buyer's place of business which Is indicated immediately below Boyar's signature and will not be removed from said location without the prior written consent of Seller, except that an Item of Collateral which is mobile and of a type normally used at more than one location may be used by Buyer away from said location in the regular course of Buyer's business provided that (a) such item Is not removed from the United States, and (b) iF such item is not returned to said location within 30 days, Buyer will immediately upon Seller's request, and each 30 days thereafter until the item is returned, report the then current location thereof to Seller in writing. 1.3 Insurance. Buyer shall ai all times bear all risk of loss of, damage to or destruction of the Collateral. Buyer agrees to procure forthwith and maintain Insurance on the Collateral, for the actual cash value thereof and for the life of this agreement, in the form of Fire Insurance with Combined Additional Coverage and Collision, Theft and/or Vandalism and Malicious Mischief Coverage when appropriate, plus such other insurance as Setter may specify from time to time, all inform and amount and with insurers satisfactory to Seller. Buyer agrees to deliver promptly to Seller certificates or if requested, policies of insurance satisfactory to Seller, each with a standard long form loss payable endorsement naming Seller or its assigns as toss payee as their interests may appear. Each policy shall provide that Seller's interest therein will not be invalidated by the acts omissions or neglect of anyone other than Seller, and will contain insurer's agreement to give 30 days prior written notice to Seller before cancellation of or any material change in the policy will be effective as to Seller, whether such cancellation or change is at the direction of Buyer or insurer. Seller's acceptance of policies in lesser amounts or risks will not be a waiver of Buyer's foregoing obligation. Buyer assigns to Setter all proceeds of any physical damage insurance maintained by Buyer with respect to the Collateral and any and all returned premiums, up to the amount owing hereunder by Buyer. Buyer directs all insurers to pay such proceeds directly to Seller. Buyer authorizes Ssller to endorse Buyer's name to all remittances without the joinder of Buyer. 2.0 SECURITY INTEREST 2.1 Security Interest. Seller retains title to and Buyer hereby grants Seller a first and perfected security interest in the Collateral to secure payment of the Time Balance indicated on first page of this Agreement and all other obligations of Buyer to Seller under this Agreement. Buyer further grants to Seller, Seller's successors and assigns and any Affiliate of any of them a security interest in the Collateral (separate and distinct from and subordinate only to the security interest granted to Seller above) to secure the payment and performance of all now existing or hereafter arising debts, liabilities and obligations of Buyer of every kind and character whether now existing ar hereafter arising, and whether direct, indirect, absolute, contingent, primary, secondary, or otherwise, to Seller or Seller's successors or assigns and any Affiliate of any of them, whether under this Agreement or any other agreement, and whether due directly or acquired by assignment ("Llabillties"). For the purposes of this Agreement, an "Affiliate" of any party means and includes any direct or indirect parent, subsidiary or sister entity of that party. Any sums at any time owing to Buyer and in the possession of Seller or any such Affiliate shall secure the Liabilities of Buyer to Seller and any Affiliate of Seller. Upon any assignment of this Agreement by Seller, the security interests granted herein will be assigned to and inure to the benefit of such assignee and the Affiliates of such assigner. The security interests granted herein shall continue to be effective regardless of any retaking or redelivery of the Collateral to Buyer. 2.2 Perfection and Preservation of Security Interest Buyer agrees, at its own cost and expense: to do everything necessary or expedient to perfect and preserve the security interests of Seller obtained hereunder; to extinguish or defend any action, proceeding or claim affecting the Collateral including but not limited to any mechanic's lien, forfeiture action or proceeding; and to pay promptly any taxes, assessments, license fees and other public or private charges when levied or assessed against the Collateral, this agreement or an accompanying note. Buyer authorizes Seller or any officer, employee or designee of Seller or any assignee of Seller (or any designee of such assignee) to file a financing statement describing the Collateral for itself and as representative of its Affiliates. Buyer egrets to execute and deliver to Seller, upon Seller's request, such documents, writings, records and assurances as Seller deems necessary or advisable for the confirmation or perfection of the security interest in the Collateral and Seller's rights hereunder, including such documents, writings, records and assurances as Seller may require for filing or recording. 2.3 Location of Buyer. (i} If Buyer is a corporetion, limited liability company, limited partnership or other registered organization, its state of organization is in the state set forth immediately below its signature on the last page of this Agreement and Buyer agrees that it will not change its form or state of organization without 30 days prior written notice to Seller. (iI) If Buyer is an individual, his/her principal place of residence is at the address set forth immediately below his/her signature on the last page of this Agreement and, if Buyer changes Buyer's principal residence, Buyer will notify Seller in wr(ting of a change in his/her principal place of residence within 30 days of such change. Buyer agrees ko reimburse Seller for all costs Incurred by Seller related to any such change. Pa e 2 of 6 of Security A reement dated 04129!05 between LARRY L FOSTER (Buyer) and CLUG$TON AG At~ TURF INCORPORATED (Setter) which Includes, without Ilrnltatbn, an item of Collateral with the following serial number: 5 8918991 ORIGINAL FOR CITICAPITAL 3' 621626 Rev, 098004 BUyer'S InllialS COmmt Non•Veh-various States (8.0.1 [- " - " 1.11 ~~ I t.205643.t.0 XC20050427154454 ~V~-~ ~~ 3.0 ACCOUNT MANAGEMENT AND.PAYMENT PROCESSING 3.1 Application of Payments. Ail payments made by Buyer to Seller pursuant to this Agreement may be applied first to any indebtedness which is not secured, then to delinquency charges, then to finance charges, then to insurance payments, then to any other fees or other amounts payable hereunder other than the Liabilities secured by a purchase money security interest in the Collateral, until all of such Liabilities are paid in full, and then to the Liabilities secured by a purchase money security interest In the Collateral in the order in which the Liabilities were incurred, This provision controls over any conflicting provision or language in this Agreement or in any other agreement between Seller and Buyer unless the parties mutualry agree In writing In a subsequent agreement to override this provision. 3.2 Debit Transactions. Seller or any assignee or other holder of this Agreement (collectively "Holder") may but shat! not be required to offer Buyer the option of paying any of Buyer's obligations to Holder through printed or electronic checks, drafts or charges ("Debit Transactions"). Each such Debit Transaction may be orally authorized by Buyer, any representative or officer of Buyer or any other party having access to or control of the account upon which the Debit Transaction is to be charged. Buyer authorizes Holder or any officer, employee or designee of Holder to initiate Debit Transactions from Buyer's account in the verbally authorized amount plus the Holder's then Debit Transaction Fee. This authorization may be canceled at any time by Buyer giving at least throe-business day's prior written notice to Buyer's bank and Holder. Buyer authorizes Ho-der to substitute a Debit Transaction for any check or other remittance submitted by Buyer in the amount of that remittance. Payment by Debit Transactions is not required by Seller nor is its use a factor in the approval of credit. 3.3 Payment Processing. Buyer hereby agrees that any payment made by Buyer hereunder by remittance and received by Seller at an address other than the address specified on the related invoice may be replaced by the Holder with a substitute written or electronic instrument of equal amount and presented to Buyer's financial institution for payment from the account referenced on the remittance from Buyer. 3-4 Returned Payments. In the event that a check, draft or other remittance sent by Buyer or a Debit Transaction authorized by Buyer is returned unpaid or rejected for any reason other than the lack of a proper endorsement by Seller, Seller agrees that the application of such payment to Buyer's Liabilities will be reversed and Buyer agrees to immediately pay Seller the amount of such returned payment, plus any delinquency charge accruing as the result of the reversal of any such payment. Buyer further agrees to pay Seller any amount charged to Seller by any depositary institution because of such return and en additional handling charge in the amount, if any, equal to $20, or in the event applicable law limits or restricts the amount of such reimbursement andlor handling charge, the amounts chargeable under this provision will be limited andlor restricted in accordance with applicable law. 3.5 Authorization to Share Information. Seller or any assignee of this Agreement may receive from and disclose to any assignee of Seller or any Affiliate of either of them, the seller or manufacturer of any Equipment, any Guarantor or other party having a disclosed or undisclosed obligation related to the Liabilities or Collateral, or any potential purchaser, participant or investor in Buyer's Liabilities or any assignee or affiliate of any of them (herein collectively, the "Entity"), and any credit reporting agency for any purpose, information about Buyer's accounts, credit application and credit experience with Seller or any Entity. Buyer authorizes any Entity to release to Seller or any assignee, or any Affiliate of either of them any information related to Buyer's accounts, credit experience and account information regarding Buyer. This shall be continuing authorization for alt present end future disclosures of Buyer's account information, credit application and credit experience on Buyer made by Seller, or any Entity requested. 4.0 PERFORMANCE BY SELLER 4.1 performance. If Buyer fails to perform any of its obligations hereunder, including, without limitation, Buyer's obligation to insure the Collateral or to protect and preserve the security interest of Buyer, Seller may perform the same, but shalt not be obligated to do so, for the account of Buyer to protect the interest of Seller or Buyer or both, at Seller's option, Buyer shall immediately repay to Seller any amounts paid by Seller together with interest thereon at the rate payable upon acceleration of Buyer's obligations under this Agreement. Performance by Seller will not constitute a waiver of any default by Buyer. 4.2 Power of Attorney. BUYER HEREBY APPOINTS SELLER OR ANY OFFICER, EMPLOYEE OR DESIGNEE OF SELLER, OR ANY ASSIGNEE OF SELLER (OR ANY DESIGNEE OF SUCH ASSIGNEE} AS BUYER'S ATTORNEY IN FACT TO, IN BUYER'S OR SELLER'S NAME: (a) PREPARE, EXECUTE AND SUBMIT ANY NOTICE OR PROOF OF LOSS IN ORDER TO REALIZE THE BENEFITS OF ANY INSURANCE POLICY INSURING THE COLLATERAL; (b} PREPARE, EXECUTE AND FILE ANY AGREEMENT, DOCUMENT, FINANCING STATEMENT, TITLE APPLICATION, INSTRUMENT (OR ANY OTHER WRITING Oft RECORD) THAT, IN SELLER'S OPINION, IS NECESSARY TO PERFECT AND/OR GIVE PUBLIC NOTICE OF THE INTERESTS OF SELLER IN ANY COLLATERAL THAT SECURES OR THAT MAY SECURE ANY OBLIGATIONS OR INDEBTEDNESS OF BUYER TO SELLER; AND (c) ENDORSE BUYER'S NAME ON ANY REMITTANCE REPRESENTING PROCEEDS OF ANY INSURANCE RELATING TO THE COLLATERAL OR THE PROCEEDS OF THE SALE, LEASE OR OTHER DISPOSITION OF THE COLLATERAL (WHETHER OR NOT THE SAME IS A DEFAULT HEREUNDER), This power is coupled with an interest and is irrevocable as long as any Liabilities remain unpaid. 5.0 DEFAULT AND REMEDIES 5.1 Events of Default, Time is of the essence. An event of default shall occur if: (a) Buyer fails to pay when due any amount owed by it to Seller, any assignee or any A~liate, successor or assign of either of them under this Agreement or under the terms of any promissory note delivered in conjunction with this Agreement; (b) or if Buyer fails to pay any Liabilities when due to Seller or an assignee or any Affiliate, successor or assign of either of them or is otherwise in default under any other document, agreement or instrument; (c) Buyer defaults under the terms of any secured indebtedness or indebtedness of a material amount to any other party; {d) Buyer fails to perform or observe any other term or provision to be performed or observed by it hereunder or under any other instrument or agreement furnished by Buyer to Seller or an assignee or to any Affiliate, successor or assign of either of them or otherwise acquired by Seller or an assignee or any Affiliate, successor or assign of either of them; (e) Buyer becomes insolvent or ceases to do business as a going concern; (f) any of the Collateral is lost or destroyed, (g) Buyer makes an assignment for the benefit of creditors or takes advantage of any law for the relief of debtors; (h} a petition in bankruptcy or for an arrangement reorganization, or similar relief is filed by or against Buyer; (i} any property of Buyer is attached, or a trustee or receiver is appointed for Buyer or for substantial part of its property, or Buyer applies for such. appointment; (j} Seller in good faith believes that the prospect of payment or performance hereunder is impaired; (k) Buyer fails to pay any final Judgment, court order, or, for sovereign borrowers, any declaration of moratorium; (I) if there shall occur an appropriation, confiscation, retention, or seizure of control, custody or possession of any Collateral by any governmental authority Including without limitation, any municipal, state, federal or other governmental entity or any governmental agency or Page 3 of 6 of Security Agreement dated 04!29105 between LARRY L FOSTER (Buyer) and CLUGSTON AG AND TURF INCORPORATED (Seller) which Includes, without limitation, an item of Collateral with the tottowing serial number: 526976991 , ORIGINAL FOR CITICAPITAL Buyer's I~s 3.621626 Rev. 49!2001 Comm'I Nott-Veh-Various States (R.D.) 1.1 t '~/ 1 1.205643.1.0 XC:20050427t54454 instrumentality (all such entities, agencies and instrumentalities shall hereinafter be collectively referred to as "Governmental Authority"); (m) if anyone in the control, custody or possession of any Collateral or the Buyer is accused or alleged or charged (whether or not subsequently arraigned, indicted or convicted) by any Govemmental Authority to have used any Collateral in connection with the commission of any crime {other than a misdemeanor moving violation); (n) there shall be a material adverse change in any of the (i) t;ondttion (financial or otherwise), business performance, prospects, operations or properties of the Buyer; (il) legality, validity or enforceability of this Agreement; (iii) perfection or priority of the lien granted in favor of Seller pursuant to this Agreement; (iv) the ebiltty of the Buyer to repay the indebtedness or perform its obligations under this Agreement or, (v) rights and remedies of the Seller under this Agreement are impaired; (o) there shall be a death of Buyer or a majority owner of Buyer or a guarantor of the Buyer's Liabilities; (p) except for the security interest, lien or reservation of title in favor of Seller or as otherwise granted herein, there shall be any lien, claim or encumbrance on any of the Collateral securing the indebtedness or obligation of Buyer to Seller, or {q) Buyer defaults under any guaranty, collateral agreement, or other support agreement. 5.2 Remedies. Upon the occurrence of an event of default, and at any time thereafter as long as the default continues, Seller may, at its option, wtth or without notice ko Buyer (i) declare this agreement to be in default, (ii) declare the indebtedness hereunder to be immediately due and payable, (ii) declare all other debts then owing by Buyer to Seller, or any successor or assignee of Seller or any Affiliate of any of them to be immediately due and payable, (iv) cancel any insurance and credit any refund to the indebtedness, and (v) exercise all of the rights and remedies of a secured party under the Uniform Commercial Code and any other applicable laws, including the right to require Buyer to assemble the Collateral and deliver it to Seller at a place to be designated by Seller which is reasonably convenient to both parties and to lawfully enter any premises where the Collateral may be without judicial process and take possession thereof. Acceleration of any Liabilities or indebtedness, if so elected by Seller, shall be subject to all applicable laws including those pertaining to refunds and rebates of unearned charge. Any property other than Collateral that is in or upon the Collateral at the time of repossession maybe taken and held without liability until its return requested by Buyer. Unless otherwise provided by law, any requirement of reasonable notice which Seller may be obligated to give regarding the sate or other disposition of Collateral will be met if such notice is mailed to Buyer at its address shown herein or to the most current address designated by Buyer to Seller in writing at least ten days before a lime of sale or other disposition. Seller may dispose of any Collateral at a public or private sale or at auction. Seller may buy at any sale and become the owner of the Collateral. Buyer agrees that Seller may bring any legal proceedings it deems necessary to enforce the payment and pertormance of Buyer's obligations hereunder in any court in the State shown in Sellers address set forth herein, and service of process may be made upon Buyer by mailing a copy of the summons to Buyer at its address shown herein. The inclusion of a trade name or division name in the identification of Buyer hereunder shall not limit Seller's right, after the occurrence of an event of default, to proceed against all of Buyer's assets, including chose held or used by Buyer individually or under another trade or division name. Expenses of retaking, holding, preparing for sale, selling and the like shall include (a) the reasonable fees of any attorneys retained by Seller, and (b) all other legal expenses incurred by Setter. Buyer agrees that Buyer is liable for alt amounts due hereunder, including any deficiency remaining after any disposition of Collateral after default. Seller may sel- the Collateral without giving any warranties as to the Collateral. Seller may disclaim any warranties of title, possession, quiet enjoyment, or the like. This procedure will not be considered to adversely affect the commercial reasonableness of any sale of the Collateral. 5.3 Acceleration Interest. Buyer agrees to pay Setter, upon acceleration of the above indebtedness, interest on all sums then owing hereunder at the rate of 1 1129'° per month if not prohibited by law, otherwise at khe highest rate Buyer can legally obligate itself to pay or Seller can legally collect. Any note taken herewith evidences indebtedness and not payment. 6.0 PREPAYMENT 6.1 Partial Prepayment and Automatic Reschedule. Buyer does not have the right to prepay only a portion of the balance of this Agreement prior to maturity without the consent of Seller. (a) In the event that there are several units subject to this Agreement and a!I of that portion of the obligation that relates to a specific unit is paid in full either as a result of a casualty loss related to the unit which is reported in writing to Seller or the sale of the unit with the prior consent of Seller, Seller will apply the proceeds received by Seller and identified as relating to any such transaction to the balance due under this Agraemen# and reschedule the remaining monthly payments under this Agreement over the then remaining term. (b) In the event that Buyer is obligated to Seller or to an assignee of Seller under the terms of any other agreement, and Seller or such assignee received one or more remittance(s) (other than as indicated in 6.1 (a}above) with respect to Phis Agreement at a time when any amount is past due under another agreement, Seller or Seller's assignee will have the right to apply any portion of such excess to the payments then due or past due under the other agreement. (c) In the event that Seller receives one or more a remittances} (other than as indicated in 6.1(a) or 6.1(b} above) with respect to this Agreement in an aggregate amount in excess of the then amounts due and unpaid under this Agreement, and the aggregate excess amount is equal to or less than four regularly scheduled payments under this Agreement, Seller will apply the amount of such excess to the immediately succeeding monthly payments under this Agreement. In the event that Seller receives one or more remittance(s) with respect to this Agreement in an aggregate amount in excess of the then amounts due and unpaid under this Agreement, and the excess amount is in an aggregate amount greater than four regularly scheduled payments under this Agreement, or Seller will, at Seller's option either (i) apply the amount of such excess to the final maturing installment payments under this Agreement, or (ii) apply the amount Of Such excess to the balance due under this Agreement and reschedule the remaining monthly payments under this Agreement over the then remaining term. The interest or finance charge Included in this Agreement is precomputed and early payment of one or more installments prior to their maturity date may not reduce the total interest or finance charge payable by Buyer under this Agreement unless the monthly payments are rescheduled. (d} In the event that Seller elects to reschedule the monthly payments under this Agreement, the portion of the balance remaining unpaid under this Agreement at the t(me of reschedule will be calculated in the same manner as upon prepayment (but without penalty), The Finance Charge or Annual Percentage Rate applicable to the rescheduled payments will be the lesser of the rate included in this Agreement and the maximum rate allowed by applicable law. Buyer's rescheduled payments wi(I appear on Buyer's account statement. 6.2 Prepayment in Full. Buyer has the right to prepay the indebtedness under this Agreement in full (but not in part) at any time. Upon prepayment Buyer will receive a rebate of the unearned portion of the finance charge calculated using an actuarial method or such other method as is required by any applicable law minus, if the prepayment is made prior to the last twelve months of the contract, a prepayment processing fee equal to the lesser of {a) 1% of the originally scheduled balance on the date of prepayment for each full twelve month period remaining under the term of this Agreement as of prepayment and (b) the maximum prepayment andlor acquisition charge allowed by applicable law; provided, however, that no such prepayment andlor acquisition charge shall be due if this Agreement is subject to the laws of Arizona, Connecticut (and the cash sale price is $50,000 or less with respect to trailer or motor vehicle collateral or $16.000 or less with respect to non-vehicular collateral}, Idaho, Montana, Nebraska, New York, Rhode island, or West Virginia. Atl accrued and unpaid late charges and other amounts chargeable to Suyer under this Agreement will be payable immediately upon such prepayment. Page 4 of 6~} Security A r Qment doted p4/29rQ5 between t.ARRY L FOSTER and CLUGSTON AG q~~ TURF INCORPORATED (Seller) which includes, without limitation, an Item of Collateral with the follow~ingr)serial number: 526916991 3-&21626 Rev. 09/2004 ORIGINAL FOR CITICAPITAL Ctxnm'I NonNeh•Varfout: States (R.oJ Buyer's I Is t.tt ~~ 1.205643.1.0 XC:20050427154454 T.0 ASSIGNMENT AND GENERAL 7 ~ Chattel Paper. This Agreement Is entered into by Seller and Buyer on the express understanding that this Agreement will be purchased by Ingersoll-Rand Financial Services, a division of CitlCapital Commercial Corporation or one of its Affiliates (°CltfCapltal"). This agreement is to be assigned only to CitiCapital and is subject to the security interest of CitiCapital. The only copy of this Agreement that constitutes "Chattel Paper for all purposes of the Uniform Commercial Code Is the copy marked "ORICa1NAL FOR CITICAPITAL" which is delivered to and held by CitiCapltal. Any assignment or transfer of this Agreement to any assignee other than CitiCapltal without the express written consent of CitlCapital violates the rights of CItCapital. Any attempted assignment to any other party without the express written consent of CitiCapital shall be VOID and of no force and eNect. No assignee or secured party other than CitiCapital or a party receiving an assignment with the express written consent of CitlCapital will under any circumstances acquire any rights in, under or to this Agreement or any sums due hereunder. 7.2 Aeslgnment. Seller intends to assign this agreement to CklCapitat. As an Inducement to CklCapital to accept en asalgnment of this Agreement from Seller, Buyer hereby (a) consents to such esslgnment and agrees not to assert age)nst CitiCapltal Balms, counterclaim, claims in recoupmenl, abatement, reducl)on, defenses, ar set-0ffs for breach of warranty or for any oNer reason which Buyer could assert against Seller or the manufacturer of the Equipment, except defenses which cannot be waived under the Uniform Commercial Code; {b) agrees to make andJor settle any end all Balms with regard to the Collaterel directly and exclusively against and with Seller or the manufacturer and Buyer agrees not to assert any of such Balms against CitiCapltal; and (c) agrees that, upon assignment the security Interests grantetl herein will Inure to the benefit of CitiCapital and ifs Affiliates. Any sums at any lima owing to Buyer and In the possession of CitiCapltal or any such Affiliate shall secure the Liabllkies of Buyer to CitiCapkal and any Attlllate of CitlCapital, 7.3 General. (a) Waiver of any default shall not be a waiver of any other default. (b) All of Seller's rights are cumulative and not alternative. (c) No waiver or change in this Agreement or in any related note shall bind Seller unless in writing signed by one of its officers. (d) The term "Seller" shall include an assignee of Seller who is the holder of this agreement. (e) Any provision hereof contrary te, prohibited by or invalid under applicable laws or regulations shall be Inapplicable and deemed omitted herefrom, but shall not invalidate the remaining provisions hereof. (f) Buyer waives alt exemptions to the extent permitted by law. (g) Seller may correct patent errors herein. (h) Any captions to the provisions of this Agreement are for convenience only and do not limit or affect the application or interpretation of this Agreement. (i) All of the terms and provisions of this agreement shall apply to and be binding upon Buyer, its heirs, personal representatives, successors and assigns and shall inure to the benefit of Seller, its successor and assigns. (j) The acceptance by Seller of any remittance from a party other than Buyer shall in no way constitute Seller's consent to the transfer of any of the Equipment to such party, (k) If allowed by law, the "reasonable fees of attorney" retained by Seller shall include the amount of any flat fee, retainer, contingent fee or the hourly charges of any attorney retained by Seller in enforcing any of Seller's rights hereunder or in the prosecution or defense of any litigation related to this Agreement or the transactions contemplated by this Agreement. (I) Buyer represents and warcants that there Is no material pending or threatened investigation by any governmental authority litigation or other legal proceeding, (m) So long as any of the Liabilities remains unpaid or unperformed, Buyer will provide Seller with such financial Inforrnation as Seller may reasonably request, including copies of Buyer's financial statements prepared in accordance with generally accepted accounting principles consistently applied within 30 days of the and of each of Buyer's fiscal quarters and within 90 days after the end of each of Buyer's fiscal years. Such financial statements shall be prepared on the same basis {reviewed, audited, etc.) as Buyer's financial statements are curcently prepared unless advised by the Seller otherwise, at which time the Buyer will comply with the Seller's request. (nj Buyer waives any right it may have to direct the application of any payments made by it to Salter, and Seller may at its option offset and deduct any liability or obligation of Buyer from any or ak sums owed by it to Buyer. 7,4 Additional Covenants and Oral Agreement. Buyer and Seller agree that this is a five-page agreement and each page hereof constitutes a part of this Agreement. THIS WRITTEN AGREEMENT REPRESENTS THE FINAL AGREEMENT BETWEEN THE PARTIES AND MAY NOT BE CONTRADICTED BY EVIDENCE OF PRIOR, CONTEMPORANEOUS, OR SUBSEQUENT ORAL AGREEMENTS OF THE PARTIES. THERE ARE N4 UNWRITTEN ORAL AGREEMENTS BETWEEN THE PARTIES. 7.5 Waiver of Trial Sy Jury. Seller and Buyer hereby waive any right to trial by Jury in any action relating to this Agreement. Seller and Buyer hereby, for themselves, their successors and assigns, WAIVE ANY RIGHT TO SUE FOR OR COLLECT FROM THE OTHER PARTY ANY DIRECT, INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE OR CONSEQUENTIAL DAMAGES OF ANY CHARACTER AS A RESULT OF OR RELATING TO THIS AGREEMENT, THE TRANSACTIONS CONTEMPLATED BY THlS AGREEMENT OR THE ENFORCEMENT BY EITHER PARTY OF ITS RIGHTS UNDER THIS AGREEMENT EXCEPT TO THE EXTENT THAT ANY SUCH DAMAGES ARE PROVEN TO BE THE DIRECT RESULT OF THE GROSS NEGLIGENCE OR WILLFUL MISCONDUCT OF THE OTHER PARTY. IMPORTANT INFORMATION ABOUT ESTABLISHING A RELATIONSHIP WITH CITICAPITAL To help the United States Government fight terrorism and money laundering, Federal law requires us to obtain, verify, and record information that identifies each person or business that opens an account or establishes a relationship, What this means for you: when you open an account or establish a relationship, we will ask for your name, street address, date of birth, and identification number, such as a social security number or taxpayer identification number. For businesses, we will ask for the business name, street address and tax identification number. Federal law requires us to obtain this Information. We may also ask to see your driver's license or other .identifying documents that will allow us to identify you. We appreciate-your cooperation. Page 5 of 6 of Seeurlry Agreement daated Q4/29/q5 LARRY L POSTER and CLUGSTON AG /CNO TURF 1NC0 behvaen (Buyer) number_ 528918991 (Seller) which Includes, without 1lmitation, an item of Collateral with the following ser'~al 3.62'1626 Rev. 09/2004 ORIGINAL FOR CITICAPITAL Canmt Non•VM-Various Slates (R.O.) Buyer's Initials _ t.tt 1.205643.1.0 XC:20050427154454 ' lG . DELIVERY ANCheck Appropnate Box OLLATERAL On __ ~/ ~ q/~J . ~a Collateral was delivered to Buyer with all installation and other work necessary for the proper use of the Collateral espelcs and deliveryawas uncandi~onally arauepted by Buyer' the Collateral was inspected by Buyer and found to be in satisfactory condition in all InhB form acceptabletoySelleer or Seller s essignee~epted by Buyer and, upon delivery, Buyer agrees to execute a delivery and acceptance certificate THtS WRITTEN AGREEMENT REPRESENTS THE FINAL AGREEMENT BETWEEN THE PARTIES AND MAY NOT BE CONTRADICTED BY AGREEMENTS BETWi=EN THE PART ES UBuyer andUSel eQf agree that his isRa sIM page agreement aRdleach page hereof Con IS~tNittwesla paR otRttAtis agreement. NOTICE TO BUYER - DO NOT SIGN THIS CONTRACT BEFORE YOU READ IT OR IF IT CONTAINS ANY BLANK SPACES. YOU ARE ENTITLED TO A COPY OF THE AGREEMENT YOU SIGN. Buyer's Social Security or Federal Taxpayer Identification Number is: 160609820 and Co-Buyer's is: - ---- Date 14J29t05 Seller: CLUGSTON AG AND TURF INCORPORATED A CUMBERLA B Title -.~~~~~ t- ~ i4~~~~ - By Buyer hereby acknowledges receipt of an exact copy of this contract. ///~~~~ Buyer(s): LARRY L FOSTER ~ /l !/ By Title INDIVIDUAL 2231 SOUTH MARKET STREET .._ .. __ (Strnl Addrsaa) MECHANICSBURG (Chy, Stets end Zip Code) PA 17055 rtle ---- (If co-Guyer, coDanner t# oo-alftcar, 7+9n here and chow wNCh) State of Organization: --• Principal ResidencelChief Executive OfficelPlace of Business: 60 CONRAD ROAD __ ~ _ _ (6troet Addrosa} CARLISLE PA 17013 _ _ (Cay, COUNTY, Sule, and Zip Cods) Date of Birth: 11(07!1964 _ ___ _ _ (Individ~eVSON Pmprie4orahq} OM29I05 between LARRY L FOSTER (Buyer) Page 6 of 6 of Sewrity Aggre~ement dated Seller which includes, without (imitation, an item of Collaterel with the following serial and _ CLUGSTON ACi /UVD TURF INCORPORA ( ) number: 52691 991 3.627626 Rev. 0912004 Comm? Non-Veh•varaus 6tetsa (R.O.) 7.+7 ORIGINAL FOR CITICAPITAL 1.205643.1.0 XC:200b0427154454 ~a~1 ~g®I~n~~de ASSIGNMENT OF SELLER Financial Services (WITHOUT RECOURSE) DOCUMENTS (check appropriate) Dated Debtor LARRY L FOSTER ® Security Agreement oa129JO5 _., v a~ ~-- mow, .Y- ^ Promissory Note pBA N ^ Guaranty Street so CONRAD ROAD ^ City, State & Zip CARLISLE PA 17013 ^ Present Balance Owed by Debtor $ - 23.3Ta.2o For value received, the undersigned ("Assignor") hereby salts, assigns and transfers to INGERSOLL-RAND FINANCIAL SERVICES, a division of CitiCepital Commercial Corporation, its successors and assigns ("Assignee"), wITHOUT RECOURSE as to the financial ability of the debtor named above ("Debtor") to pay, alt Assignor's right, title and interest in and to (a) the security agreement or other title retention or lien instrument described above (the Securlly Agreement") between Assignor end Debtor, (b) any notes, guaranties and other documents executed in connection with the Security Agreement (herein, with the Securlly Agreement, called the "Documents"), (c)all amounts due or to become due under the Documents, (d) the property in which a security interest or lien is granted to or reserved by Assignor under the Security Agreement (the "Collateral"), and {e} alt of Assignor's rights and remedies under or in connection with the Documents, Including the right, without notice to Assignor and without affecting Assignor's liability hereunder: (i) to collect any and all amounts owing under the Documents, (li} to endorse Assignor's name or any note or remittance received, (iii) to release or discharge Debtor or any other persons obligated under the Dowments, on terms, satisfactory to Assignee, by operation of law or othervvise, (iv) to settle, campromise or adjust any end all rights against and to grant extensions of time of payment to Debtor or any other persons obligated under the Documents, and {v) to take any other action Assignor might take but for this assignment. Assignor warrants that: the Documents are genuine, collectable, enforceable and in all respells what they purport to be; all signatures, names, addresses, amounts and other statements and facts contained In the Documents and herein are true and correct; Debtor has obtained all insurance required by the Security Agreement and such insurance is In full force and effect; the Collateral was sold to Debtor in a bona fide time sale transaction; Debtor has paid the down payment in cash or as otherwise set forth In the Security Agreement, and no part thereof was loaned directly or indirectly by Assignor; the Collateral was delivered In satisfactory condition to Debtor on the date set forth below, was property installed if required, and was accepted by Debtor; Debtor is not in default under the Security Agreement; all parties to the Documents have the capacty to contract and none of such parties fs a minor; the security interest, lien and reservatlon of title evidenced by the Securlly Agreement are valid, first, prior to ell others and effective against all persons; Assignor has caused or will promptly cause such actions or procedures to be taken as are required or pennltted by statute or regulation to perfect such security interest, lien and reservation of title in Assignee's favor, including, wthout limitation, filing financing statements, recording documents and obtaining Cert~cates of Title disclosing Assignee's interest; Assignor has full title to and the right to sell and assign the Documents and the security Interest, I(en and reserved title evidenced thereby, and this assignment conveys the same free and clear of all liens end encumbrances whatsoever; the Documents are and will continue to be free from defenses, counter-claims, cross-claims and set-offs, and Assignor shall continue to be liable hereunder notwithstanding Assignee's waiver of or failure to enforce any of the terms, covenants or conditions contained in the Documents or any release oi, or failure on the part of Assignee to realize upon or protect, the Collateral or any lien thereon. Assignor agrees that Assignee may audit its books and records relating to the bocuments. Assignee shall have no obligations of Assignor as seller under the Security Agreement. Unless othervvise agreed under the provisions of any applicable underlying agreement, any amount retained by Assignee as a reserve or holdback shall be held by Assignee as security for but not in lieu of the performance of Assignor's obligations under this or any other agreement with assignee or any affiliate of Assignee, and shall be paid to Assignor without interest when all amounts due under the Documents have been paid in full, provided that no direct or contingent obligation of Assignor, whether hereunder or under any other agreement with Assignee or any affiliate of Assignee, Is in default at the time such reserve or holdback amount is to be paid to Assignor. In the event of any such default, Assignee may apply any reserve, holdback, account or property in Assignee's possession toward satisfaction of such ablfgations. If Assignee gives a rebate of finance charge computed on the total finance charge payable by Debtor, and such rebate Is greater than a like rebate computed on the portion of the finance charge to be earned hereafter by Assignee, Assignor will pay to Assignee upon demand the difference between such rebates; the portion of the finance charge to be earned hereafter by Assignee Is the excess of (i) the amount to be collected under the Security Agreement and retained by Assignee, over (ii) the amount paid or to be paid by Assignee to Assignor for the Security Agreement. ANY REASSIGNMENT OF THE DOCUMENTS ANDlOR THE COLLATERAL BY ASSIGNEE SHALL BE WITHOUT RECOURSE OR WARRANTY OF ANY KIND. Assignor waives presentment and demand for payment, protest and notice of non-payment, and subordinates all rights Assignor may now or hereafter have against Debtor to any rights Assignee may now or hereafter have against Debtor, Assignee shell have no authority to, and will not, without Assignee's prior written consent, accept collections, repossess, substitute or consent to the return of the Collateral, or modify the terms of the Documents. Assignee's knowledge at any time of any breach of or non-compliance with any of the foregoing shall not constitute any waiver by Assignee. Assignor waives notice of acceptance hereof. At the request of Assignee, Assignor agrees to glue reasonable assistance to effect collection of the Documents and repossession of the Collateral, and any such services shall be furnished without cost to Assignee unless Assignee otherwise agrees in writing. Assignor agrees to store on Assignor's premises, without cost to Assignee, any repossessed Collateral. Assignor hereby acknowledges that such Collateral shall at all times remain the property of Assignee and Assignor shat) have no right to sell, lease, rent, move or otherwise transfer or dispose of such Collateral without the prior written consent of Assignee. If any of the foregoing warranties are untrue, or if Assignor breaches any provision hereof, Assignor wIl! indemnify and hold Assignee harmless from any losses, damages or claims arising therefrom and will, without requiring Assignee to proceed against Debtor or any other person or any security, repurchase the Documents on demand and pay Assignee in cash the balance remaining unpaid thereunder plus any expenses of collection, repossession, transportation and storage (including reasonable attorney's fees and court costs} incurred by Assignee, less any customary refund by Assignee ofunearned finance charges. The Collateral was delivered to Debtor on LII ~~?,f• c ~_ , Dated 04/29/05 (Date) ASSIGNOR CLUGSTON AG AND TURF INCORPORATED DBA CUMBERLAND BOBCAT Name of ' ' uel, Corporalian tx paMerstdp. indivi ow trade style, if any, attar neme.i 8y pr knryorotion, authorized officer muss sign and show Corporate dde. If paMenhip, a general paMer must sign. If owner or paMer, show which.) e~ Title ~C~lrer4L ~/1~rQ,J/~E~ 620854 Rev. 0512004 Assignment o1 Seller (wOR) ~ .02 Page 1 of t Ingersoll-Rand Financial Services is a division of CitiCa ttal EXHIBIT ~•?ft~5643.1.O.XICt200SO4~71544)5.4 P t t r i l a ommercta easing orpora ton, UCC FINANCING STATEMENT FOLLOW INSTRUCTIONS front and back CAREFULLY A. NAME & PHONE OF CONTACT AT FILER [optional] Phone (800)331-3282 Fax 818)662-4141 B. SEND ACKNOWLEDGMENT TO: (Name and Address) UCC Direct Services P.O. Box 29071 Glendale, CA 91209-9071 FILING NUMBER: 2005050400808 FILING DATE: 04-MAY-2005 IMAGE REFLECTS DATA FROM AN ELECTRONIC FILING PA, Secretary of Commonwealth I THE ABOVE SPACE IS FOR FILING OFFICE USE ONLY 1. DEBTORS EXACT FULL LEGAL NAME -insert only gilg debtor name (ta or t b) - do not abbreviate or combine names ta.ORGANIZATION'S NAME OR 1b. INDIVIDUAL'S LAST NAME FIRST NAME MID FOSTER LARRY L tc. MAILING ADDRESS 6O CONRAD ROAD CITY CARLISLE STATE PA POSTAL CODE 17013 td. TAX ID #: SSN OR EIN ADD'L INFO RE 1e. TYPE OF ORGANIZATION 1f. JURISDICTION OFORGANIZATION tg. ORGANIZATIONAL ID #, if any ORGANIZATION DEBTOR 2. ADDITIONAL DEBTOR'S EXACT FULL LEGAL NAME -insert only 4Il@ debtor name (2a or 2b) • do not abbreviate or combine names 2a. ORGANIZATION'S NAME OR 2b. INDIVIDUAL'S LAST NAME FIRST NAME MIDDLE NAME 2c. MAILING ADDRESS CITY STATE POSTAL CODE ORGANIZATION DEBTOR I 3. SECURED PARTY'S NAME (or NAME of TOTAL ASSIGNEE of ASSIGNOR S/P) -insert only Qpg secured party name 3a. oRGANIZATION•s NAME CITICAPITAL COMMERCIAL CORPORATION 4. This FINANCING STATEMENT covers the following collateral: 1 BOBCAT SKID-STEER LOADERS 5150 S/N 526916991 CAB, HEAT, ACS Together with all present and future attachments, accessories, replacement parts, additions, and all cash and non-cash proceeds thereof. 5. ALTERNATIVE DESIGNATION (it applicableJ: LESSEEILESSOR CONSIGNEE/CONSIGNOR BAILEE/BAILOR SELLERlBUVER AG. LIEN NON-UCC FILING g, is rs to e i e or recor or recor ed) m t e 7. ec to on a for s STATE RECORDS. Attach Addendum i(a livable ADDITIONAL FEE o tional All Debtors Debtor 1 Debtor 2 8, OPTIONAL FILER REFERENCE DATA 0496 LM 14187660 EXHIBIT FILING OFFICE COPY -NATIONAL UCC FINANCING STATEMENT (FORM UCC1) (REV. 07129/98) ~ t ll any USA NINE OR 3b. INDIVIDUAL'S LAST NAME FIRST NAME MIDDLE NAME SUFFIX 3c. MAILING ADDRESS 8OO 1 RIDGEPOINT DR CIN IRVING STATE TX POSTAL CODE 75063 COUNTRY USA VERIFICATION I, a duly authorized representative of CitiCapital Commercial Corporation, depose and say subject to the penalties of 18 Pa.C.S.A. §4904 relating to unsworn falsification to authorities that the facts set forth in the foregoing Complaint in Replevin are true and correct to the best of my information and belief. t° ~ J o O * ~ C7 ~:~ 04 ~ _ ~- n „~ J ~-. ._ ~ O ~ e} s ,. 9 j ~' ...- 3 ' ~ `_ .. ~y V --G ~:/ SHERIFF'S RETURN - REGULAR CASE NO: 2007-04919 P COMMONWEALTH OF PENNSYLVANIA: COUNTY OF CUMBERLAND CITICAPITAL COMMERCIAL CORP VS FOSTER LARRY _L CPL RICHARD SMITH Sheriff or Deputy Sheriff of Cumberland County, Pennsylvania, who being duly sworn according to law, says, the within NOTICE AND COMPLAINT IN was served upon FOSTER LARRY L the DEFENDANT at 1415:00 HOURS, on the 23rd day of August 2007 at 60 CONRAD ROAD CARLISLE, PA 17013 LARRY FOSTER by handing to a true and attested copy of NOTICE AND COMPLAINT IN together with REPLEVIN AND ASSUMSIT and at the same time directing His attention to the contents thereof. Sheriff's Costs: Docketing Service Affidavit Surcharge ~~~~a~ ~ So Answers: ~''E~ R. Thomas Kline 08/24/2007 THOMAS REILLY PC By: eputy Sheriff 18.00 4.80 .00 lo.oo .00 0 Sworn and Subscibed to before me this day of A.D. }_ ~ IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CITICAPITAL COMMERCIAL CORPORATION, Plaintiff, vs. LARRY L. FOSTER, Defendant. CIVIL DIVISION No: 07-4919 PRAECIPE FOR DEFAULT JUDGMENT Filed on Behalf of Plaintiff Counsel of Record for This Party: Thomas E. Reilly, Esquire Pa. T.D. #25832 THOMAS E. REILLY, P.C. Firm I.D. #511 2025 Greentree Road Pittsburgh, PA 15220 (412) 341-1600 ;.. 4 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CITICAPITAL COMMERCIAL CORPORATION, CIVIL DIVISION No. 07-4919 Plaintiff, vs. LARRY L. FOSTER, Defendant. PRAECIPE TO ENTER JUDGMENT BY DEFAULT TO: PROTHONOTARY Kindly enter judgment by default against the named Defendant, Larry L. Foster, for failure to file an Answer for the following: COUNTI Possession of one Bobcat Skid Steer Loader 5150, Serial Number 526916991, Cab, Heat, and ACS. COUNT II Balance: $17,168.70 Interest from 7/12/07 to 10/4/07: $204.12 TOTAL: $17,372.82 plus continuing interest at the rate of $2.43 per diem and additional costs and expenses and such further relief as the Court deems just and proper. L I hereby certify that appropriate Notice of Default, as attached has been mailed in accordance with PA R.C.P. 237.1 on the date indicated on the Notice. TH By: Thomas E. Reil ,Esquire 2025 Greentre Road Pittsburgh, P 15220 (412) 341-1600 Attorneys for Plaintiff v IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CITICAPITAL COMMERCIAL CORPORATION, Plaintiff, vs. LARRY L. FOSTER, Defendant. CIVIL DIVISION No. 07-4919 CIVIL TERM TO: LARRY L. FOSTER 60 CONRAD ROAD CARLISLE, PA 17013 DATE OF NOTICE: ~ IMPORTANT NOTICE YOU ARE IN DEFAULT BECAUSE YOU HAVE FAILED TO ENTER A WRITTEN APPEARANCE PERSONALLY OR BY ATTORNEY AND FILE IN WRITING WITH THE COURT YOUR DEFEN5ES OR OBJECTIONS TO THE CLAIMS SET FORTH AGAINST YOU. UNLESS YOU ACT WITHIN TEN DAYS FROM THE DATE OF THIS NOTICE, A JUDGMENT MAY BE ENTERED AGAINST YOU WITHOUT A HEARING AND YOU MAY LOSE YOUR PROPERTY OR OTHER IMPORTANT RIGHTS. YOU SHOULD TAKE THIS NOTICE TO A LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER OR CANNOT AFFORD ONE, GO TO OR TELEPHONE THE FOLLOWING OFFICE TO FIND OUT WHERE YOU CAN GET LEGAL HELP. IF YOU CANNOT AFFORD TO HIRE A LAWYER, THIS OFFICE MAY BE ABLE TO PROVIDE YOU WITH INFORMATION ABOUT AGENCIES THAT MAY OFFER LEGAL SERVICES TO ELIGIBLE PERSONS AT A REDUCED FEE OR NO FEE. CUMBERLAND COUNTY BAR ASSOCIATION 32 SOUTH BEDFORD STREET CARLISLE, PA 17013 (717) 249-3166 .C. By: ~ / ''I~f' Thomas E. Reil ,Esquire 2025 Greentr Road Pittsburgh, A 15220 (412) 341 600 THIS IS AN ATTEMPT TO COLLECT A DEBT AND ANYTHING SAID CA BE USED FOR THAT PURPOSE IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CITICAPITAL COMMERCIAL CORPORATION, Plaintiff, vs. LARRY L. FOSTER, Defendant. CIVIL DIVISION No. 07-4919 AFFIDAVIT OF NON-MILITARY SERVICE COMMONWEALTH OF PENNSYLVANIA ) ss: COUNTY OF ALLEGHENY ) Before me, the undersigned, a Notary Public in and for the aforesaid County and State, personally appeared Thomas E. Reilly, Esquire, who having been duly sworn according to law deposes and says that to the best of his information and belief the Defendant is not in the military service of the United States of America and further, he hereby certifies that Notices required by Pa.R.C.P.237.1(a)(2) were mai ed to the Defendant as required by said Rule, more than ten days prier t he Praecipe to Enter Judgment by Default. Swo and sub d before me this ~ay of ~~~, 20 Not ry Pub is MMONWEALTH L~~'"'_!~ "%si',~ ... ...... „.4 Notarial Spar Jamie N. Millet, N~pry ~~~~; ~ Scott Two., E~q~t ~s~i!~r~ I~ Commission t~tti, 39, Meng, Penns~ylvarel~ p~rpeiatir;n ~t w~r'° :~~ i Thomas E. Reilly ii1 rt Q ~~ ~ O v -X- •.,. D `~ ~ ~ a ~ ~, i}; t ~~ _:~. v i~- ___h44ww~~~ ~-.,_ ~~ ~~_. ~ ~. _ ~ E...1 ' ~R ~{ y r~ - ~ ~ IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CITICAPITAL COMMERCIAL CORPORATION, Plaintiff, vs. LARRY L. FOSTER, Defendant. CIVIL DIVISION No: 07-4919 PRAECIPE FOR WRIT OF POSSESSION Filed on Behalf of Plaintiff Counsel of Record for This Party: Thomas E. Reilly, Esquire Pa. I.D. #25832 THOMAS E. REILLY, P.C. Firm I.D. #511 2025 Greentree Road Pittsburgh, PA 15220 (412) 341-1600 ., s IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CITICAPITAL COMMERCIAL CORPORATION, Plaintiff, vs. LARRY L. FOSTER, Defendant. CIVIL DIVISION No. 07-4919 PRAECIPE FOR WRIT OF POSSESSION TO THE PROTHONOTARY: Kindly issue a Writ of Possession in the above matter directed to the Sheriff of Cumberland County, PA. 1. To deliver possession of the equipment more particularly identified as a Bobcat Skid Steer Loader S 150, Serial Number 526916991, Cab, Heat and ACS. THOMAS E.~F,~LLY, P.C. Thomas E. Reilly, Esc Pa. I.D. #25832 2025 Greentree R ad Pittsburgh, PA 15220 (412) 341-1600 _.., ',` } (W ~ "' b c _ ~ ~ ~ ~ -.~ ~ ~ ]of 2 WRIT OF POSSESSION (Ejectment Proceedings PRCP3160-3165 etc.) IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CITICAPITAL COMMERCIAL CORPORATION VS. No. 07-4919 Civil Term LARRY L. FOSTER Costs Attorney's $ 149.30 Plaintiff's $ Prothonotary $ 2.00 COMMONWEALTH OF PENNSYLVANIA: COUNTY OF CUMBERLAND: To the Sheriff of Cumberland County, Pennsylvania (1) To satisfy the judgment for possession in the above matter you are directed to deliver possession of the following described property to: (Plaintiff (s)) CITICAPITAL COMMERCIAL CORPORATION being: (Premises as follows): BOBCAT SKID STEER LOADER 5150, SERIAL NUMBER 526916991, CAB, HEAT AND ACS. (2) To satisfy the costs against the defendant (s) you are directed to levy upon any property of the defendant (s) and sell his/her (or their) interest therein. C 's R. Long, Prothonot ~~8 Common Pleas Court of Cumberland County, PA Date 10-11-07 (Seal) A 2of2 No 07-4919 Civil Term IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CITICAPITAL COMMERCIAL CORPORATION VS. LARRY L. FOSTER WRIT OF POSSESSION P.R.C.P. 3160-3165 ETC. Costs Att'y $ 149.30 Plff (s~ $ Prothy $ 2.00 Sheriff $ Plaintiff (s) attorney name and address: THOMAS E. REILLY, ESQUIRE 2025 GREENTREE ROAD PITTSBURGH, PA 15220 Attorney for Plaintiff (s) Where papers may be served By virtue of this writ, on the day of I caused the within named , to have possession of the premises described with the appurtenances, and Sworn and subscribed to before me this Day of , Prothonotary So Answers, Sheriff By Deputy 07 - ~Ygt~ R. Thomas Kline, Sheriff, who being duly sworn according to law, states this Writ is returned Expired. Sheriff's Costs: Advance Costs: 150.00 Sheriffs Costs 45.90 Docketing 18.00 104.10 Poundage .90 Advertising Law Library Prothonotary 2.00 Refunded to Atty on 08/13/08 Mileage 5.00 Misc. Surcharge 20.00 Levy Post Pone Sale Certified Mail Postage Garnishee TOTAL 90 /811Q1l.~6 45 So Answers . ; ,,~~ ~. ~., R. T m Kline, Sheri By ~~.~ ~~. C ICS` LSY~~ ~~ 7 ~...:. ~, ~ ~ ~ ~~. 2of2 No 07-4919 Civil Term IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CITICAPITAL COMMERCIAL CORPORATION VS. LARRY L. FOSTER WRIT OF POSSESSION P.R.C.P. 31b0~-315 ETC. Costs Att'y $ 149.30 Plff (s~ $ Prothy $ 2.00 Sheriff $ Plaintiff (s) attorney name and address: THOMAS E. REII.,LY, ESQUIRE 2025 GREENTREE ROAD PITTSBURGH, PA 15220 Attorney for Plaintiff (s) By virtue of this writ, on the named appurtenances, and Sworn and subscribed to before me this Day of , Prothonotary Where papers maybe served day of I caused the within _, to have possession of the premises described with the So Answers, Sheriff By Deputy 1 of 2 WRIT OF POSSESSION (Ejectment Proceedings PRCP3160-3165 etc.) IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CITICAPITAL COMMERCIAL CORPORATION VS. No. 07-4919 Civil Term LARRY L. FOSTER Costs Attorney's $ 149.30 Plaintiff's $ Prothonotary $ 2.00 COMMONWEALTH OF PENNSYLVANIA: COUNTY OF CUMBERLAND: To the Sheriff of Cumberland County, Pennsylvania (1) To satisfy the judgment for possession in the above matter you are directed to deliver possession of the following described property to: (Plaintiff (s)) CITICAPITAL COMMERCIAL CORPORATION being: (Premises as follows): BOBCAT SKID STEER LOADER S150, SERIAL NUMBER 526916991, CAB, HEAT AND ACS. (2) To satisfy the costs against the defendant (s) you are directed to levy upon any property of the defendant (s) and sell his/her (or their) interest therein. ~1 K . ~~irtis R~L~o g, Prothonou~, -- Common Pleas Court of Cumberland County, PA Date 10-11-07 (Seal) r~ ~ IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CITICAPITAL COMMERCIAL CORPORATION, Plaintiff, vs. LARRY L. FOSTER, Defendant. CIVIL DIVISION No: 07-4919 PRAECIPE FOR DEFAULT JUDGMENT Filed on Behalf of: Plaintiff Counsel of Record for This Party: Thomas E. Reilly, Esquire Pa. LD. #25532 THOMAS E. REILLY, P.C. Firm LD. #511 2025 Greentree Road Pittsburgh, PA 15220 (412) 341-1600 !""' a IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CITICAPITAL COMMERCIAL CORPORATION, Plaintiff, vs. LARRY L. FOSTER, Defendant. CIVIL DIVISION No. 07-4919 PRAECIPE TO ENTER JUDGMENT BY DEFAULT TO: PROTHONOTARY Kindly enter judgment by default against the named Defendant, Larry L. Foster, for failure to file an Answer for the following: COUNTI Possession of one Bobcat Hydraulic Mini-Excavator 325, Serial Number 232312368, COUNT II Balance: $11,332.24 Interest from 7/12/07 to 10/4/07: $ 126.16 TOTAL: $11,458.40 plus continuing interest at the rate of $1.52 per diem and additional costs and expenses and such further relief as the Court deems just and proper. On October 11, 2008 default judgment was erroneously entered only on Counts III and IV of Plaintiff's Complaint (incorrectly identified as Counts I and II). This Praecipe enters default judgment on the two remaining counts of Plaintiff's Complaint. r I hereby certify that appropriate Notice of Default, as attached has been mailed in accordance with PA R.C.P. 237.1 on the date indicated on the Notice. , By: THOMA~/E./REILLY, P Thomas . R y, Esquire 2025 Gre ntr Road Pittsburgh A 15220 (412) 341-x+600 Attorneys for Plaintiff IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CITICAPITAL COMMERCIAL CORPOR.ATTON, Plaintiff, vs. LARRY L. FOSTER, Defendant. CIVIL DIVISION No. 07-4919 CIVIL TERM TO: LARRY L. FOSTER 60 CONRAD ROAD CARLISLE, PA 17013 DATE OF NOTICE: ~ IMPORTANT NOTICE YOU ARE IN DEFAULT BECAUSE YOU HAVE FAILED TO ENTER A WRITTEN APPEARANCE PERSONALLY OR BY ATTORNEY AND FILE IN WRITING WITH THE COURT YOUR DEFENSES OR OBJECTIONS TO THE CLAIMS SET FORTH AGAINST YOU. UNLESS YOU ACT WITHIN TEN DAYS FROM THE DATE OF THIS NOTICE, A JUDGMENT MAY BE ENTERED AGAINST YOU WITHOUT A HEARING AND YOU MAY LOSE YOUR PROPERTY OR OTHER IMPORTANT RIGHTS. YOU SHOULD TAKE THIS NOTICE TO A LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER OR CANNOT AFFORD ONE, GO TO OR TELEPHONE THE FOLLOWING OFFICE TO FIND OUT WHERE YOU CAN GET LEGAL HELP. IF YOU CANNOT AFFORD TO HIRE A LAWYER, THIS OFFICE MAY BE ABLE TO PROVIDE YOU WITH INFORMATION ABOUT AGENCIES THAT MAY OFFER LEGAL SERVICES TO ELIGIBLE PERSONS AT A REDUCED FEE OR NO FEE. CUMBERLAND COUNTY BAR ASSOCIATION 32 SOUTH BEDFORD STREET CARLISLE, PA 17013 (717) 249-3166 .C. By: ~ •~ rl~i' Thomas E. Reil ,Esquire 2025 Greentr Road Pittsburgh, A 1 X220 (412) 341 600 THIS IS AN ATTEMPT TO COLLECT A DEBT AND ANYTHING SAID CA BE USED FOR THAT PURPOSE ~'_ IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CITICAPITAL COMMERCIAL CORPORATION, Plaintiff, vs. LARRY L. FOSTER, Defendant. CIVIL DIVISION No. 07-4919 AFFIDAVIT OF NON-MILITARY SERVICE COMMONWEALTH OF PENNSYLVANIA ) ss: COUNTY OF ALLEGHENY ) Before me, the undersigned, a Notary Public in and for the aforesaid County and State, personally appeared Thomas E. Reilly, Esquire, who having been duly sworn according to law deposes and says that to the best of his information and belief the Defendant is not in the military service of the United States of America and further, he hereby certifies that Notices required by Pa.R.C.P.237.1(a)(2) w~e mailed to the Defendant as required by said Rule, more than ten days pri o the filing of the Praecipe to Enter Judgment by Default. Sworn to and subsc~,~'bed before me this ~ day ofi`~ua~s> , 20pf'.' ~-- ~---- ~ tary Public COMMONWEALTH OP PENNSYLVANUI Notaiiel SCI Lorraine Marie Crowr-, Notary PubNC Scott TWP•. AM~~Y AMY My Commission ExpNes April ~, 2012 Member. Pennsylvania Aisooialion oI Notaries Thomas E. ~ ~ ~ ~~ fir' ~ ~ -n .t ~, ~ ~~ ~ ~~ Y O l ~`e~ •~ '..:. mow... .-~y~ ,~,~, t~~ ins ..,~ \7~) .~; ~ rte. IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CITICAPITAL COMMERCIAL CORPORATION, Plaintiff, vs. LARRY L. FOSTER, Defendant. CIVIL DIVISION No: 07-4919 PETITION TO REQUIRE LARRY FOSTER TO APPEAR AND TESTIFY AS TO THE WHEREABOUTS OF THE PROPERTY INVOLVED IN REPLEVIN ACTION Filed on Behalf of: Plaintiff Counsel of Record for This Party: Thomas E. Reilly, Esquire Pa. I.D. #25832 THOMAS E. REILLY, P.C. Firm LD. #5I 1 2025 Greentree Road Pittsburgh, PA 15220 (412) 341-1600 ~~ IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CITICAPITAL COMMERCIAL CORPORATION, Plaintiff, vs. LARRY L. FOSTER, Defendant. CIVIL DIVISION No. 07-4919 PETITION TO REQUIRE LARRY L. FOSTER TO APPEAR AND TESTIFY AS TO THE WHEREABOUTS OF THE PROPERTY INVOLVED IN REPLEVIN ACTION AND NOW, comes Plaintiff, by and through its counsel, Thomas E. Reilly, Esquire and Thomas E. Reilly, P.C. and petitions this honorable court to enter an Order requiring a Larry L. Foster to appear and testify as to the whereabouts of the property involved in this replevin action, averring in support of the following: Plaintiff commenced this action in replevin at the above docket number to recover possession of one Bobcat Hydraulic Mini-Excavator 325, Serial Number 232312368. 2. On October 11, 2007, the Prothonotary issued a Writ of Possession for the property. Since the issuance of the Writ, the Plaintiff has been unable to locate the property which is the subject of the replevin action. 3. Pursuant to Pa. R.C.P. 1081(1), the court may issue an order of court requiring the defendant to appear and testify as to the whereabouts of the property which is the subject of the replevin action. 4. Furthermore, Plaintiff has moved for the entry of default judgment for possession of the property. Pursuant to Pa.R.C.P 3118(A)(4) the court may order the defendant or any other person to disclose the whereabouts of the defendant's property to the sheriff. WHEREFORE, Plaintiff respectfully requests this Honorable Court enter an order directing that Larry L. Foster appear and testify as to the whereabouts of the one Bobcat Hydraulic Mini-Excavator 325, Serial Number 232312368. THOI)/IA,$ E. REILLY, P.C. Dated: ~`~ ~~ ~l'~ BY: / Thomas E. Rei ,Esquire Pa. I.D. No. 2 832 2025 Green ee Road Pittsburgh, A 15220 (412) 341-1600 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CITICAPITAL COMMERCIAL CORPORATION, Plaintiff, vs. LARRY L. FOSTER, Defendant. CIVIL DIVISION No. 07-4919 AFFIDAVIT Before me, the undersigned authority, personally appeared Thomas E. Reilly, Esquire, being duly sworn according to law deposes and says that he is an attorney for the Plaintiff, authorized to make this Affidavit; that he, and not the Plaintiff makes this affidavit because he, and not the Plaintiff has first hand knowledge of the facts set forth in the foregoing Petition which are true and correct to the best of his knowledge, information and belief. f Thomas E.-1~2~ , Esq ire Sworn to and subscribed before me this /-3'K day of _ia.~ , 200P -' _ NNSYLVANIA Otary Notarial Seal Lorraine Marie Crown, Notary Public Scott Twp., Allegheny County My Commission Expires Apri129, 2012 Member. Pennsylvania Association of Notaries t F1~D-Vi r"~ 1 ~~3~ c ~