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HomeMy WebLinkAbout08-1346REED SMITH LLP By: Matthew E. Tashman, Esquire Identification No. 67036 Jennifer P. Knox, Esquire Identification No. 206298 2500 One Liberty Place 1650 Market Street Philadelphia, PA 19103-7396 (215) 851-8100 (215) 851-1420 (telecopy) WACHOVIA BANK, NATIONAL ASSOCIATION 123 South Broad Street Philadelphia, PA 19109, Plaintiff, VS. BPC Partners 4150 Chambers Hill Road Swatara, PA 17111, Defendant. NOTICE COURT OF COMMON PLEAS CUMBERLAND COUNTY Pursuant to Rule 236 of the Supreme Court of Pennsylvania, you are hereby notified that a JUDGMENT BY CONFESSION has been entered against you in the above-captioned proceeding. Copies of all documents that have been filed with the Prothonotary in support of the Confession of Judgment are attached hereto. If you have any questions concerning this Notice, please call Matthew E. Tashman, Esquire, at (215) 851-8100. jl 141 ? ye PROTHONOTARY ?. REED SMITH LLP By: Matthew E. Tashman, Esquire Identification No. 67036 Jennifer P. Knox, Esquire Identification No. 206298 2500 One Liberty Place 1650 Market Street Philadelphia, PA 19103-7396 (215) 851-8100 (215) 851-1420 (telecopy) WACHOVIA BANK, NATIONAL ASSOCIATION 123 South Broad Street Philadelphia, PA 19109, Plaintiff, : vs. : BPC Partners : 4150 Chambers Hill Road Swatara, PA 17111, : Defendant. COURT OF COMMON PLEAS CUMBERLAND COUNTY -Xo. o y-, 1 3 4 (o &?'-a 7z ' ENTRY OF JUDGMENT BY CONFESSION AND ASSESSMENT OF DAMAGES Pursuant to the Complaint in Confession of Judgment filed in the within action and the Warrants of Attorney attached thereto, judgment is hereby entered against the Defendant. DAMAGES ARE ASSESSED AS FOLLOWS: Guaran Unpaid principal balance under the Guaranty as of February 28, 2008 Unpaid interest under the Guaranty as of February 28, 2008 Total amount due under the Guaranty as of February 28, 2008 (subject to additional interest and $11,328,608.67 $12,347.27 2 costs and attorneys' fees accruing thereafter) Forbearance Fees (due under Forbearance Agreement) Costs and attorneys' fees (not to exceed) TOTAL AMOUNT DUE ON ALL OF THE FOREGOING AS OF FEBRUARY 28, 2008 (SUBJECT TO ADDITIONAL INTEREST AND COSTS AND ATTORNEYS' FEES ACCRUING THEREAFTER) $11,340,955.94 $250,000.00 $567,047.80 $12,158,002.94 S Q? LAT, 113 PROTHONOTARY I,w REED SMITH LLP By: Matthew E. Tashman, Esquire Identification No. 67036 Jennifer P. Knox, Esquire Identification No. 206298 2500 One Liberty Place 1650 Market Street Philadelphia, PA 19103-7396 (215) 851-8100 (215) 851-1420 (telecopy) WACHOVIA BANK, NATIONAL ASSOCIATION 123 South Broad Street Philadelphia, PA 19109, ; Plaintiff, vs. BPC Partners 4150 Chambers Hill Road ; Swatara, PA 17111, Defendant. COURT OF COMMON PLEAS CUMBERLAND COUNTY -kL,., _ 0 ?, / 3 4,L ?.t `j-Z- ,. COMPLAINT IN CONFESSION OF JUDGMENT Plaintiff, Wachovia Bank, National Association (the "Bank") by and through its attorneys, Reed Smith LLP, files this Complaint for judgment by confession pursuant to Pennsylvania Rules of Civil Procedure 2950-2956 and, in support hereof, states as follows: 1. The Bank is a national banking association with an address of 123 South Broad Street, Philadelphia, Pennsylvania, 19109, and is authorized to conduct business in the Commonwealth of Pennsylvania. 2. Defendant, BPC Partners (the "Defendant") is a business located at 4150 Chambers Hill Road, Swarata, Pennsylvania 17111. 3. The Defendant, the Bank, and the following entities: Dunphy Nissan, Inc., Autohaus Acquisition, Inc., Reinhart Federal, Inc., Reinhart Acquisition, Inc., R.A.P Industries, Inc., SNL Trading, Inc., D, B& E Enterprises, LLC a/ka/ D, B, & E Enterprises, LLC a/k/a D, B and E Enterprises, LLC, Nicholas Reinhart, and Denise Reinhart (together with the Defendant, the "Obligors") are parties to that certain Forbearance Agreement dated March 27, 2007 (the "Forbearance Agreement"). A true and correct copy of the Forbearance Agreement is attached hereto and incorporated herein as Exhibit "A". 4. Prior to executing the Forbearance Agreement, the Defendant executed a guaranty dated February 23, 2007 (the "Guaranty") guaranteeing the prompt payment of all amounts due and owing by the other Obligors to the Bank. A true and correct copy of the Guaranty is attached hereto and incorporated herein as Exhibit "B". 5. Pursuant to the Guaranty, the Defendant was and remains obligated (collectively, the "Guaranteed Obligations") under the following notes: a. That certain Promissory Note Wholesale Line of Credit dated December 19, 2005, by Dunphy Nissan, Inc., in favor of the Bank, in the original principal amount of $6,000,000.00, as amended by that certain Modification Number One to the Promissory Note dated December 30, 2005 (the 16,000,000.00 Dunphy Nissan Note"). A true and correct copy of the $6,000,000.00 Dunphy Nissan Note is attached hereto and incorporated herein as Exhibit «C99. 2 b. That certain Promissory Note Wholesale Line of Credit dated December 30, 2005, by Autohaus Acquisition, Inc. and Reinhart Federal, Inc., in favor of the Bank, in the original principal amount of $5,000,000.00 (the 15,000,000.00 Autohaus Note"). A true and correct copy of the $5,000,000.00 Autohaus Note is attached hereto and incorporated herein as Exhibit "D"; C. That certain Promissory Note Wholesale Line of Credit dated December 19, 2005, by Reinhart Acqusition [sic], Inc., in favor of the Bank, in the original principal amount of $6,000,000.00 (the 16,000,000.00 Reinhart Acquisition Note"). A true and correct copy of the $6,000,000.00 Reinhart Acquisition Note is attached hereto and incorporated herein as Exhibit "E"; d. That certain Promissory Note dated September 16, 2005, by SNL Trading, Inc., in favor of the Bank, in the original principal amount of $2,800,000.00, as amended by that certain Modification Number One to the Promissory Note dated December 30, 2005 (the 12,800,000.00 SNL Note"). A true and correct copy of the $2,800,000.00 SNL Note is attached hereto and incorporated herein as Exhibit "F"; e. That certain Promissory Note dated December 15, 2005, by D, B and E Enterprises, LLC in favor of the Bank, in the original principal amount of $1,840,000.00 (the "$1,840,000.00 D, B and E Note"). A true and correct copy of the $1,840,000.00 D, B and E Note is attached hereto and incorporated herein as Exhibit "G"; and f. That certain Promissory Note dated December 15, 2005 by Nicholas Reinhart and Denise G. Reinhart, in favor of the Bank, in the original principal amount of $2,880,000.00 (the 12,880,000.00 Reinhart Note"). A true and correct copy of the $2,880,000.00 Reinhart Note is attached hereto and incorporated herein as Exhibit "H". 6. The Forbearance Agreement and the Guaranty authorize the confession of judgment against the Defendant. 7. As a result of, among other things, the failure to make payments under the Guaranty and the Forbearance Agreement as and when due, events of default occurred under the Guaranty and the Forbearance Agreement. 8. Pursuant to the terms of the Guaranty and the Forbearance Agreement, upon the occurrence of an event of default, the Bank was authorized to declare all amounts payable thereunder to be immediately due and payable. 9. On or about July 5, 2007, the Bank sent a letter (the "July Default Letter") to the Defendant notifying the Defendant of the occurrence of events of default under the Guaranty and the Forbearance Agreement, and declared the unpaid principal amount of the Guaranteed Obligations, interest accrued thereon, and all other amounts owing under the Guaranty and the Forbearance Agreement to be immediately due and payable in full. A true and correct copy of the July Default Letter is attached hereto and incorporated herein as Exhibit "I". 10. The Defendant has not paid the full amounts owed to the Bank under the Guaranty and the Forbearance Agreement. 11. Pursuant to the terms of the Guaranty and the Forbearance Agreement, upon the occurrence of an event of default under the Guaranty or the Forbearance Agreement, or at any 4 time thereafter, the Bank may appear for and confess judgment against the Defendant for the amounts due and owing under, the Guaranty and the Forbearance Agreement. 12. Under the terms of the Guaranty and the Forbearance Agreement, the Bank is entitled to recover from the Defendant the costs of any suit, including attorneys' fees. 13. Under the terms of the Guaranty, the Defendant agreed that, the state and federal courts of the Commonwealth of Pennsylvania in any county where the Bank has an office, or in any location where the Guarantor or any of its property is located, shall have jurisdiction with respect to matters involving the Guaranty. 14. As of February 28, 2008, the amounts due and owing by the Defendant to the Bank under the Guaranty and the Forbearance Agreement are as follows: Guaran Unpaid principal balance under the Guaranty as of February 28, 2008 $11,328,608.67 Unpaid interest under the Guaranty as of February 28, 2008 $12,347.27 Total amount due under the Guaranty as of February 28, 2008 (subject to additional interest and costs and attorneys' fees accruing thereafter) $11,340,955.94 Forbearance Fees (due under Forbearance Agreement) $250,000.00 Costs and attorneys' fees (not to exceed) $567,047.80 TOTAL AMOUNT DUE ON ALL OF THE FOREGOING AS OF FEBRUARY 28, 2008 (SUBJECT TO ADDITIONAL INTEREST AND COSTS AND ATTORNEYS' FEES ACCRUING THEREAFTER) $12,158,002.94. 5 15. The Guaranty and the Forbearance Agreement have not been assigned by the Bank. 16. The Bank's claims against the Defendant are not based upon a residential mortgage and Act 6 does not apply. 17. No judgment has been entered on the Guaranty or the Forbearance Agreement in any jurisdiction. 18. The confession of judgment provisions appearing in the Guaranty and the Forbearance Agreement are less than twenty (20) years old. 19. Judgment in favor of the Bank and against the Defendant is not being entered against a natural person in a consumer credit transaction. 20. Judgment in favor of the Bank and against the Defendant as demanded is authorized by the confession of judgment provisions contained in the Guaranty and the Forbearance Agreement. WHEREFORE, Wachovia Bank, National Association, as authorized by the Warrant of Attorney contained in the Guaranty and the Forbearance Agreement, hereby demands that judgment by confession be entered in its favor and against the Defendant in the amount of $12,158,002.94 plus interest accruing after February 28, 2008, plus costs and attorneys' fees and requests such other and further relief as the Court may deem proper. 6 REED SMITH LLP Dated: February 2008 By: J/,/, t //j X el M tthe . Tas an, Esquire Identification No. 67036 Jennifer P. Knox, Esquire-- Identification No. 206298 2500 One Liberty Place 1650 Market Street Philadelphia, PA 19103-7396 (215) 851-8100 (215) 851-1420 (telecopy) Attorneys for Wachovia Bank, National Association 7 p I :w11=6j 6 ? 0:! j U3J? REED SMITH LLP By: Matthew E. Tashman, Esquire Identification No. 67036 Jennifer P. Knox, Esquire Identification No. 206298 2500 One Liberty Place 1650 Market Street Philadelphia, PA 19103-7396 (215) 851-8100 (215) 851-1420 (telecopy) WACHOVIA BANK, NATIONAL COURT OF COMMON PLEAS ASSOCIATION CUMBERLAND COUNTY 123 South Broad Street Philadelphia, PA 19109, Plaintiff, VS. BPC Partners 4150 Chambers Hill Road Swatara, PA 17111, Defendant. VERIFICATION Patrick McGovern hereby states that he is a Senior Vice President of Wachovia Bank, National Association and verifies that the statements made in the foregoing Complaint In Confession Of Judgment are true and correct to the best of his knowledge, information and belief. The undersigned understands that the statements made therein are made subject to penalties of 18 Pa. Cons. Stat. Ann. § 4904 relating to unworn falsification to authorities. Dated: Februarys , 2008 Patrick McGove Senior Vice President Wachovia Bank, National Association REED SMITH LLP By: Matthew E. Tashman, Esquire Identification No. 67036 Jennifer P. Knox, Esquire Identification No. 206298 2500 One Liberty Place 1.650 Market Street Philadelphia, PA 19103-7396 (215) 851-8100 (215) 851-1420 (telecopy) WACHOVIA BANK, NATIONAL COURT OF COMMON PLEAS ASSOCIATION CUMBERLAND COUNTY 123 South Broad Street Philadelphia, PA 19109, Plaintiff, VS. BPC Partners 4150 Chambers Hill Road Swatara, PA 17111, Defendant. AFFIDAVIT COMMONWEALTH OF PENNSYLVANIA SS. COUNTY OF PHILADELPHIA Patrick McGovern, being duly sworn according to law, deposes and says that he is a Senior Vice President of Wachovia Bank, National Association and that he is duly authorized to make this affidavit on behalf of Plaintiff; that the facts set forth in the foregoing Complaint In Confession Of Judgment are true and correct to the best of his information and belief; and that the Guaranty and the Forbearance Agreement (each as defined in the Complaint) which are attached as Exhibits to the Complaint In Confession Of Judgment are true and correct copies of the originals executed by the Defendant. Irk worn to and subscribed before e thiQ day of February, 2008. _OMMONWEALTH OF PENNSYLVANLA SEAL N:AR'IAL Donna Anzio, Notary Public Pha, Philadelphia County City of M commex ices Ma 22,2411 Patrick McGoverrf Senior Vice President Wachovia Bank, National Association REED SMITH LLP By: Matthew E. Tashman, Esquire Identification No. 67036 Jennifer P. Knox, Esquire Identification No. 206298 2500 One Liberty Place 1650 Market Street Philadelphia, PA 19103-7396 (215) 851-8100 (215) 851-1420 (telecopy) WACHOVIA BANK, NATIONAL COURT OF COMMON PLEAS ASSOCIATION CUMBERLAND COUNTY 123 South Broad Street Philadelphia, PA 19109, vs. BPC Partners 4150 Chambers Hill Road Swatara, PA 17111, Plaintiff, Defendant. AFFIDAVIT OF INCOME COMMONWEALTH OF PENNSYLVANIA SS. COUNTY OF PHILADELPHIA Patrick McGovern, being duly sworn according to law, deposes and says that he is a Senior Vice President of Wachovia Bank, National Association; that he is a duly authorized representative of Plaintiff; and that, to the best of his knowledge, information and belief, the income of the Defendant is in excess of $10,000 per year Patrick McGovernt/ Senior Vice President Wachovia Bank, National Association Sworn to.and subscribed before me this day of Februa 20 - cd? v Notary Public COMMONWEALTH Of ?MNSYLVArmit NOTARIAL SEAL Donna A. Deprinzio, Notary Public City of Philadelphia, Philadelphia County M commission expires May 22, 2011 -2- REED SMITH LLP By: Matthew E. Tashman, Esquire Identification No. 67036 Jennifer P. Knox, Esquire Identification No. 206298 2500 One Liberty Place 1.650 Market Street Philadelphia, PA 19103-7396 (215) 851-8100 (215) 851-1420 (telecopy) WACHOVIA BANK, NATIONAL ASSOCIATION 123 South Broad Street Philadelphia, PA 19109, Plaintiff, VS. BPC Partners 4150 Chambers Hill Road Swatara, PA 17111, Defendant. COURT OF COMMON PLEAS CUMBERLAND COUNTY AFFIDAVIT OF NONAPPLICABILITY OF GOODS AND SERVICES INSTALLMENT SALES ACT COMMONWEALTH OF PENNSYLVANIA SS. COUNTY OF PHILADELPHIA Patrick McGovern, being duly sworn according to law, deposes and says that he is a Senior Vice President of Wachovia Bank, National Association and that he is a duly authorized representative of Plaintiff; that the Complaint In Confession Of Judgment does not arise out of a retail installment sale, contract, or account, as defined under the Goods and Services Installment Sales Act, 69 Pa. Stat. Ann. § 1101, et sea.: and that the foregoing facts are true and correct to the best of his knowledge, information and belief. Patrick McGoverr/ Senior Vice President Wachovia Bank, National Association and subscribed before me day of February, 200 . v 21?(/ C I Z //t'3 Notary Public vm..,.,.1VCtfAR1AL SEAL Doma A. DcPn°zjo, NotarY Public City of pWaddp a* Philadaipbia County . _ Mav 22.2011 -2- REED SMITH LLP By: Matthew E. Tashman, Esquire Identification No. 67036 Jennifer P. Knox, Esquire Identification No. 206298 2500 One Liberty Place 1650 Market Street Philadelphia, PA 19103-7396 (215) 851-8100 (215) 851-1420 (telecopy) WACHOVIA BANK, NATIONAL COURT OF COMMON PLEAS ASSOCIATION CUMBERLAND COUNTY 123 South Broad Street Philadelphia, PA 19109, Plaintiff, VS. BPC Partners 4150 Chambers Hill Road Swatara, PA 17111, Defendant. AVERMENT OF DEFAULT COMMONWEALTH OF PENNSYLVANIA SS. COUNTY OF PHILADELPHIA Patrick McGovern, being duly sworn according to law, deposes and says that he is a Senior Vice President of Wachovia Bank, National Association; that he is a duly authorized representative of Plaintiff; that the Defendant executed the Guaranty and the Forbearance Agreement (each as defined in the Complaint), true and correct copies of which are attached to the Complaint; that the Defendant is in default under the Guaranty and the Forbearance Agreement; and that as of February 28, 2008 there is $11,590,955.94 due and owing under the Guaranty and the Forbearance Agreement plus costs and attorneys fees not to exceed $567,047.80. Patrick McGovern Senior Vice President Wachovia Bank, National Association and subscribed before me day of February, 2008. 12 , //.` - Public _ -",7.v-,z gVLVANi NV 1 niv?"' "` Donna A. Deprinzio, NO MY Pub ty city of Philadelphia, P?? ?,2011 My commission exp' -2- REED SMITH LLP By: Matthew E. Tashman, Esquire Identification No. 67036 Jennifer P. Knox, Esquire Identification No. 206298 2500 One Liberty Place 1650 Market Street Philadelphia, PA 19103-7396 (215) 851-8100 (215) 851-1420 (telecopy) WACHOVIA BANK, NATIONAL COURT OF COMMON PLEAS ASSOCIATION CUMBERLAND COUNTY 123 South Broad Street Philadelphia, PA 19109, Plaintiff, vs. BPC Partners 4150 Chambers Hill Road Swatara, PA 17111, Defendant. AFFIDAVIT OF COMMERCIAL TRANSACTION COMMONWEALTH OF PENNSYLVANIA SS. COUNTY OF PHILADELPHIA Patrick McGovern, being duly sworn according to law, deposes and says that he is a Senior Vice President of Wachovia Bank, National Association; that he is a duly authorized representative of Plaintiff; that the underlying transaction relative to this Complaint In Confession Of Judgment is a commercial transaction to the best of his knowledge, information and belief. YX7 ? 7/X YP 7A Patrick McGovern Senior Vice President Wachovia Bank, National Association Sworn to and subscribed before me %;2zg8.? Notary Public IENNyYLVAIIIn AL Public otary city of elp6ia County a 22, 2011 Mii -2- ?pgBEARAATCE A(:i?E1i?NT This FORBEARANCE AGREEMZNI` (the "Agreement") is made this 27`s day of March, 2007 by and ainer?g WACHUVIA BANK, NATIONAL ASSOCIATION (the "Bank"'), DUNPHY.NMSAN,:INC., AUTOHAUS ACQUISITION, INC., REINHA.RT FEDERAL, INC., REINHART ACQUISITION, INC., R.A.P. DMUSTRIEB, INC., BPC PA.RTNER% SNL TRADING, INC.-,.D, B& E EN'I'.ETrPRISSBS, LLC, NICHOLAS REINHART and DENISE REINHART (individually, a "Borrower" .and collectively, the "Borrowers"). BABA, CKGRUiIND A. The Borrowers and the Dank are parties to various agreements, instruments and other documents between the Borrowers .and the Banks, including but not limited to the agreements, instruments and other documents set forth on the attached Schedule "A" (collectively, the "Loan Documents") pursuant to which the Bank made various loans, extensions of credit and other financial accommodations available to the.Borrowers. B. The Borrowers and the Bank are parties to those certain letter agreements dated February 23, 2007 and March 14, 2007 (collectively, the "Original Forbearance Agreements"). The Original Forbearance Agreements, by their terms, expire on March 23, 2007. This Agreement shall supersede the original Forbearance Agreements, but not that certain letter dated February 26, 2007 from Bank to the Borrowers. C. Defaults and events of default have occurred and are continuing under the Loan Documents as a result of, among other things: (1) the Borrowers :selling Collateral without complying with.the repayment provisions contained in the Loan Domunants and depositing such sale proceeds into bank accounts maintained with financial institutions other than the Bank; and (b) the existence of an approximately:S2,000,000 "ou"f-trust" position (collectively, the "specified Bvents.of Default j. D. The Borrowers have requested the Bank continue to forbear from exercising its rights and remedies under the. Loan Aocuments for a limited period of time. Subject to the terms and conditions contained herein, the Bankhas agreed to the Burrowers' request. NOW, THEREFORE, incorporating the Background section herein, and in consideration of the mutual promises contained herein, and for other good and valuable consideration, the receipt and.legel sufficiency of which :are hereby acknowledged, and intending to be legally bound hereby, the Bank and the Borrowers agree as follows; I . &Mobdmnents. To induce the Bank to enter into this Agreement, the Borrowers, individually and together, jointly and severally, each acknowledge, agree, warrant, and represent that: PHLL0401172.6-M[TASHMA (a) w . . ?. (1) The SpedfIC4 Events of DdwAt enumerated in the Background Section of this Agremuent have occurred, have not and cannot be oared, and are material in nature; (2) but for this Agreement, the Bank would be presently entitled to exercise its rights and remedies under the Loan Documents and applicable law; (3) the Loan Documents are valid and enforceable against, and all of the terms and conditions of the Loan Documents are binding as to, each such Borrower who is a party to such .dom=ts; (4) the B.auk`e liens and :security :intoreas in .and to the collateral desctibod in the Loan Documents are valid, legal, binding and properly recorded or filed; (5) to the extent that .any of the :Loan Documents require notification by the Bank to the Borrowers or any other party of the existence of the Specified Events of Default and an opportunity to cure. such Specified Events of DAult, such .notice and period for cure were properly given by the Bank or:aro hereby waived by the Borrowers; and (b) the Borrowers have no defenses, set-offs or counterclaims against the OW& or, alternatively, to the extent that any defenses, set-offs or counterclaims =exist, the. Borrowers hereby waive any and all defenses, set- offs and counterclaims which they may have or claim to have. (b) Aclmowl2&MQ t OfOWWAdM,. The Borrowers agree that, as of March 21, 2007, the principal and interest amounts owed to the Bank with respect to the Loans are as set forth below, plus fees and costs, and that such amounts are without offset, counterclaim or other defense: -2- PH JSOjjn*WTAWWA Loan Pr nci Interest . Loan A - $6,000,000.00 Loan to Dunphy $5,505,9.09.20 $91,390.05 Nissan, Inc. Loan B - $2,000,000.00 Loan to RAY.' $1.,810,783.92 $18,433:60 Industries ho Loan C - $5,000,000.00 Loan to Autohaus Acquisition,. Inc. 00 Reinhart PoOTal Inc. $3,866,089.41 $41,646.28 Loan D - $6,000,000.00 loan to Reinhart $2,380,682.04 $48,038.71 Acquisition, Inc. Loan B - $2,000 000:00 Loan to BPC Partners $1,833,333.35 $2145.00 Loan F - $2,800,000.00 Loan to SNL Trading, :Inc. $2,5191992.00 $2,948.39 Loan G - $1,1.60,000.00 Loan to SNL Trading, Inc. $1,063,333.40 $1,244.10 Loan H - $1,840,000.00 Loan to. D, Band E $1,686,666.70 $1,973.40 Ent 'sus LLC . . Loan I - $100,000.00 Loan to R.A.P. Industries, Inc., Autohaus Acquisition, Inc., Reinhart Acquisition, Inc. and DunphyNissan, $0.0.0 $0.00 Inc. Loan I - $100,000.00 Loan to Reinhart $100,000.00 $1,173.89 Acquisition, Inc., Autohaus Acquisition, Inc. and'Dun h Nissan,.Inc. Loan K - $100,000.00 Loan to Dunphy Nissan, $100,000.00 $929.1.9 Inc., Autohaus Acquisition, Inc., and Reinhart A uisition Inc. Loan L - $100,000.00 Loan to Autoitaus $100,000.00 $93.8.68 Acquisition, Inc., Dunphy Nissan, Inc. and Reinhart Acquisition, Inc. Loan M - $2,880,000.00 Loan to Nicholas $2,735,68.1.86 $3,200.75 Reinhart and Denise 0. Reinhart -3- pHUJS-WIZZ4-MTASHMA Loan N - $1,150,000.00 Loon to Nicholas $950,000-00 $741.00 Reinhart and Denise G. Reinhart Wo.S133y47.52 I.OW O Credit) The foregoing, together with accrued and uppaid.interest, fees and expenses, including, but not limited to attorneys' fees ,and costs, are collectively referred to herein as the "Obligations". (c) Adeauata &WUVt lion. The Borrowers have each been represented by legal counsel of their choice, understand and are fully aware of the terms contained in this Agreement and have volwtarily, without coercion or duress of any kind, entered into this Agreement and the documents executed in connection with this Agreement. 2. Release by the Borrowers. The $orrowera, on behalf of themselves, and any person or entity claiming by, under or through them, hereby unconditionally remise, release and forever discharge the Bank and Its past and.present officers, directors, shareholders, agents, parent corporation, subsidiaries, affiliates, trustees, administrators, attorneY#, predecessors, and sugeessors and assigns, of and from any and an manner of ,actions, Causes of action .s> ,debts, dues, -accounts, claims, counterclaims, crossclaims, defenses and/or demands whatsoever, including claims for contribution and/or Indemnity, whether now :known or unknown, past or present, asserted nor unasserted, contingent or liquidated, at law or in equity, or resuldug.fraam any assignment, if any, which they ever had, now have, or may have.against the Bank, for or by reason of any cause, matter or thing whatsoever, arising from the beginning of time to the effective date of this Agreement, including but not limited to, any sad all claims relating to or arising from the leading or any other relationship between the Borrowers and the Bank. The Borrowers agree that they have been represented by counsel of their choice in connection this Agreement, including in connection with this paragraph, and that such counsel has explained the significance of the forgoing release to them and that they have,kaowingly and intentionally agreed to the forgoing release and to the other matters set forth to this Agreement. 3. ftagtgntations ad Warranties. To induce the Bank to enter into this Agreement, and as partial consideration for the terms and conditions contained herein, each Borrower makes the following representations and warranties to the Bank, each and all of which shall survive the execution and deliveryof this Agreement: (a) OrMWZation and Authority. Each non-individual :Borrower is duly organized, validly existing and in good standing under the laws of the state of its organization and has taken all necessary action to duly authorize the execution, delivery and implementation of this Agreement and all documents, agreements and instruments executed by it in connection herewith. Each individual Borrower is sui fun's with full power and capacity to enter into this Agreement. 4- FHi js-wiin.44XTMHW fb) Other Consents. No =sent, waiver, approval :or.other authorization of or by any court, administrative agency or other govz=eutal or quasi-governmental authority is required in connoction with the mmution and delivery of or compliance with this Agreement or ,any other document or hwrmem relating to this Agreement. (.o) -St, The execution and delivery of this Agreement and all other documents and instruments oxamted in connection herewith will not conflict with, or result in a breach of (i) the terms, conditions or provisions of the incorporating documents or by-Laws of any Borrower; or (ii) any mortgage, lease, agreement, or other instrument; or any applicable law, judgment, order, writ, injunction, decree, rule or regulation of any court, administrative agency or other governmental authority to which any Borrower is a party or by which any Borrower's properties are bound. (d) Valid and Binding Aureecnent. Ties,Agreement is, and each of the documents executed pursuant hereto, are legal, valid, and binding obligations of each Borrower, enforceable against each such party in accordance with their rsspecdve terms, subject only to limitations imposed by virtue of federal/state bankruptcy or insolvency laws. (e) Comp__^ ianco_with Laws. Each Borrower is in :compliance in all material respects with all known laws, regulations and requirements applicable to its business and has not received, and has no knowledge of, any order or notice of any governmental investigation or of any violations or claims of violation of any known law, regulation or any governmental requirement applicable to it. (f .) No n m or 1Vlis gWJ" &MXUents. Neither this Agreement nor any other document exwgWd in connection herewith contains any untrue statement of a material fact and/or omits any material fact necessary in order to make the statement made, in light of the circumstances under which it was made, :accurate. { g) Other Representations Wat'ranties and QV-0010016W Each Borrower reaffirms all of its respedive:represontations, warranties, and covenants to the Bank contained in the Loan Documents, and each Borrower warrants that all such representations, . warranties, and covenants are true and correct as of the date .hereof 4 Esr,be eArg,W Cpvpnan_ t, ."The Borrowers, jointly and severally, and the Bank covenant and agree as follows: (a) Lien Releases,. Subject to the'Bank's receipt of the Out-of Trust Payment (as defined herein), and satisfaction of all other conditions precedent set forth in Section 6 of this Agreement, Bank shall release. (a) its liens on the Borrower's 7200 West Chester Pike property, 4902 Louise Drive property and 6475 Carlisle Pike Property; and (b) its second lien (but not its first lien) on the Borrower's 51 O West Chester Pike property. Luther, with respect to the Loan designated as "Loan 0" in Section 1(b) of this Agreement, Bank .agrecs that prior to September 30, 2007, it will not declare an Event of Default under the Loan Documents evidencing "Loan G" to the extent that such Event of Default is caused by: (i) Borrower's breach of the "Cross Default" subsection of that certain Promissory Note by SNL Trading, Inc. in favor of the 1Bank PHUID-W 172AWrAWMA c amount Of $1,1.60,000,00; (i?.Bnrrower's dated December 15, 2045 in the origuial I? breach of the "Cross Remand"subsection of that certain Loan Agreement between SNL Trading, inc. and the Bank dated December 15,2005; and (iii) Andrew Mogilyansky, or his designee, becoming the tenant on the 510 West Chester Pike property. By way of further clarification with respect to items (a)(ii) and (a)(H) it is the intention of the Bank and the Borrowers that prior to September 30, 2007, the Bank will only declare an Event of Default with respect to "Loan G" if caused by a default related to that Loan and the 510 West Chester Pike property (and not with respect to any %rrosss-default" or "cross-deMand" default). (b) Worldn 'tat Finan?rng. On or before April 30, 2007, Borrower shall obtain additional working capital financing of.not.less than $500,000. Such working capital financing shall not be socured by How on any assets that are subject to liens in favor of the Bank. of Floor Plan Loans ad Lines of Cruet. On or before May (C) VmMt 31, 2007, Borrowers shall deliver to Bank commitment letters reasonably acceptable to Bank pursuant to which the Borrowers will repay in full, on or before June 30, 2007, the Loans designated as "Loan " "Loan C", "Loan D", "Loan I", ``Loan J", "Loan V and A", "Loan B, "Loan L" in Section 1(b) of this Agreement (the "Operating Company Loans'. On or before June 30, 2007, Borrower shall repay in full the Operating Company Loans and such Operating Company Loans shall be automatically terminated . (d) Scheduled Pavments During the term of this Agreement, the Borrowers shall pay to the Bank principal, interest and all other amounts as and when due under the Loan Documents, other than curtailment payments; provided, however, that interest billed by the Bank on March 1, 2007 shall not be payable by the Borrowers until April 13, 2007, Without limiting the foregoing, as any vehicles financed under the Loan Documents are sold or otherwise disposed of, Borrowers shall provide the Bank with immediate notice of same .and Bank may automatically debit Borrowers' accounts to repay to Bank the amount advanced, less any previous principal curtailments made. All such payments.shall be applied on it "match funding" basis. Borrowers shall provide Bank with access to all of Borrowers' books and records and Borrower shall implement such procedural safeguards as .Bank shall require in order to assure the Bank that Borrower is operating on a "match funding" basis. (a) n pn„eni11Q of Floor Plan Lines. Subject to the Borrower's compliance with all terms and conditions set forth in this Agreement and the Loan Documents, until the earlier of June 30, 2007 or the occurrence of an Event of Default under this Agreement, the Bank agrees to continue to allow advances unda:(a) that certain Promissory Note--Wholesale Line of Credit dated December 30, 200.5 by Autobaus Acquisition, Inc., Reinhart Poderal, Inc. in favor of the Bank (the "Autohaus Note'l, provided, however, that advances shall not exceed the face .amount of the Autohaus Note ($5,000,000); (b) that certain Promissory Note - Wholesale Line of Credit dated December 19, 2,005 by Reinhart Acquisition, Inc. in favor of the Bank (the "RAI Note'l; provided, however that in no event shall: (x) the Borrowers under the RAI Note be authorized orrequest advances in excess of (i) $1,500,000 on account of new vehicles .and (ii) $2,500,000 on account of used vehicles; (c) that certain promissory Note - Wholesale Line of Credit dated August 12, 2005 by Dunphy Nissan, Inc.. in favor of the Bank (the "Dunphy Note'j, provided, however, that -in no event shall Dunphy Nissan, Inc. be authorized or request advances -6- FHLU"11T2.4METASHWI in excess of. (1) :$4,500,000 on account of new vehicles and (ii) $1,000,000 on account of used vehicles; and (d) that certain promissory Note - Wholesale Line of Credit dated December 20, 2005 by R.A.P. Industries, inc. in.favor .of the, Bank (the `TR.-.P. Note'), provided, however, that advances shall not exceed the ice amount of the .R.A.P. Note ($2,000,000). Nothing contained in this paragraph or elsewhere in this Agreement Shall constitute an agroommt by the Bank to make advances to the Borrowers under any other Loan Document. ]Notwithstanding the foregoing Bank will cooperate reasonably with Borrowers with respwt to Salo, purchase and disposition of new and .used, m well as trado-in 'vehicles so long as within the limits stated herein. (f) ether $aalt Accou. Borrowers hereby represent and warrant that Schedule "B" hereto sets forth a complete and accurate list of all accounts of the Borrowers maintained at financial institutions other than the Bank, and the approximate principal balance of such accounts as of the date hereof. Borrower shall use the Bank as its primary depository institution. (g) Asset SalV$ZSfinanc nns. Borrowers shall use their best efforts to either sell assets in order to repay the Obligations 'or .refinance the Obligations. In furtherance thereof, promptly upon receipt, Borrowers shall deliver to Bank copies of all letters of intent, commitment letters or similar agreements regarding the sale or refinancing.of.some or all of the Borrowers' .assets, (h) RAP • Upon the sole of all or substantially all of the assets ofR,A.P: Industries, Inc. ("RAF) to Andrew Mogilyansky or his designm,,provided that such sale occurs on or before'September 50, 2007, Bank agrees that it will release its lien on the assets of RAP, provided that Bank receives all proceeds of such asset ado and such proceeds are not less than all principal, inteeest.and other amounts then outstanding` under the Loan designated as "Loan B" in Section 1(b) of this Agreement. { i) 5119 Wit Chester pjM 9[mSM Sale. Upon the sale of the 510 West Chester Pike property to Andrew Mogilyansky or :his designee, provided that such sale occurs on or before September 30, 2007, Bank agrees that it will release its lien such property, provided that Bank receives proceeds from such sale not less than all principal, interest.and other amounts then outstanding under the Loan designated as `Loan C)" in Section 1(b) of this Agreement. (j) AMs to Books and Records. 'Me Borrowers agree to allow any representative of the Bank to examine the Borrowers' books of account and other records and files, to make copies thereof and to discuss tho Borrower' affairs, business, finances and accounts with the Borrowers' officers -and employees, all at such reasonable times and as. often as the Bank may request. (k) Forbearance Fee. Inconsideration for the Bank's agreement to enter into this Agreement, the Bask shall immediately earn .a forbearance fee of $250x000 (the "Forbearance Fee'). The Borrowers shall pay the Forbearance Fee as follows. (i) :$30,000 on the data of April 30,1007; (H) $.20,000 on May 31, 2007; (iii) $100,000 on June 30, 2007; and (iv) $100.,000 on September 30, 2007; provided, however, that: (x) the $20,000 portion of the -7 PHLOS-01172A-WTAS" Forbearance Fee payable on .May 31, 2007 shall be deferred to June 30, 2007 if the Borrowers have delivered to Bank on or before May 31, 2007 commitment letters reasonably:aoceptable to Bank pursuant to which the Borrowers will repay in full, on or before June 30, 2007, the Operating Company Loans; (Y) the $100,000 portion (or $1.20,000. portion, if *11cable) of the Forbearance Fee piyable on June,30,.2007'shall be parmaneutly waived and forgiven if the Operating company Loans are paid and satisfied in full on or prior to .June 30, 2007; and (z) the $1oo oo0 portion of the fwbaaxaoce Fine shall be paman+ntly waived and forgiven if all of the Obligations are paid and satisfied in full prior to September 30, 2007. 5. Forbearance h XBsi1t. Without waiving the Specified Events of Default or the . Bank's rights and remedies with respect thapto, and subject to the tern's and conditions set forth herein, the Loan Documents, and the .documents executed in connection with this Agreement, the Bank agrees to forbear in the exercise of its rights and remedies under the Loan Documents with respect to the Specified Events of Default until the earlier of September 30, 2007 or the occurrence of an Event of Default under this Agrecr pant (the "Termination Date"). 6. Cpnditions Precedent. The effectiveness of this Agreement, and the Bank's obligations hereunder, are conditioned upon the fulfillment by the Borrowers of all of the following conditions precedent: (a) el __veev o_f 3>sOunents. The Borrowers shall deliver to the Bank the following documents, in form and substance satisfactory to the Bank and its counsel, and if such documents require signatures, then executed by the appropriate parties: i ) this Agreement; (ii) a mortgage on 4150 .Chambors .1 ill Road (to replace the mortgage received but not recorded with the Original Forbearance Agreements); (iii') Corporate authority documents for the Borrowers authorizing them to enter into this Agreement and any other agreement executed in connection herewith; and iv) such.other documents as reasonably requested by the Bank. .(b) OUj_Of.TnXd pg= nt. The Borrowers hall have paid the Bank, in immediately available funds, $1,839,000 (the "put-of-Trnst Paymentj, which amount the Borrowers and the Bank estimate to be approximately the out-of-trust amount. 7. Ry_earts, of Default. Each of the following shall constitute are event of default ("Event of Default") under this Agreement: (a) gayrr?ent. Failure of any Borrower to pay any amount as and when due hereunder or under the Loan Documents (other than curtailment payments). -8.. PIij-NI I O&TASHMA (b) ltevresentationsn Warranties. Any representation or warranty trade by any of the Borrowers in this Agreement or in the Loan Documents shall be false or misleading in any material respect as of the date made. (c) ,overi_,?ts. failure of the Borrowers to observe any covenant set forth in this Agreement or the Loan Documents. (d) Azeernents Invalid. The validity, binding nature of, or enforceability.of any term or provision of this Agreement or any of the Loan Documents is .disputed by, on behalf of, or in the right or name of any Borrower or any material term or provision of this Agreement or any of the Loan Documents is found or declared to be invalid, avoidable, or unenforceable by any court of competent jurisdiction. (e) e'ross-Defaults. The occurrence of a default or event of default (other than the Specified Events of Default) under any of the Loan Documents. (f) Baniaiintcv or Insolvency of Any Bow (1) Any Borrower becomes. insolvent, or generally fails to pay, or is generally unable to pay, or admits in writing (.other than as set forth in financial statements previously provided to the Bank) its inability to pay its debts as they become due or applies for, consents to, or acquiesces in, the appointment of a trustee, receiver or other custodian, or a substantial part of its property, or makes a general assignment for the benefit of creditors. (2) Any Borrower commences any bankruptcy, reorganization, debt arrangement, or other case or proceeding under any state or federal bankruptcy or insolvency law, or any dissolution or liquidation proceeding. (3) Any bankruptcy, reorganization, debt arrangement, or other case or proceeding under any state or federal bankruptcy or insolvency law, or any dissolution or liquidation proceeding, is involuntarily commenced against or in respect of any Borrower or an order for relief is entered in any such proceeding, and any such decree or order remains in effect for a period of sixty (60) days. (4) A trustee, receiver, or other custodian is appointed for any Borrower or a substantial part of its property. ((j) t A v i e. A material adverse .change occurs in the financial condition or credit worthiness of any :Borrower or with respect to any collateral of the Bank, with such determination to be made by the Bank in its discretion, in good faith, including, but not limited to, any change or potential change that occm or which could occur in any Borrower's financial condition or assets as a result of any action taken by, or on behalf of, any creditor or group of creditors of one or both of the Borrowers. 8. Wis. An Event of Default hereunder shall constitute an Event of Default under each of the Loan Documents. An Event of Default under any Loan Document shall _g, PHLLM-Wii79A4&rTA%W constitute an Event of Default under all of the other:Loan Documents. Upon the Termination Date, the Bank's obligations hereunder.shall teuninato and the Bank shall have and may exercise, .at its option, ail of the remedies set forth herein, in any of the documents executed in connection herewith, in any of the Loan Documents and/or under applicable. law, including, without limitation, the following: C`?n-- fe io?3 Qf Jud t• EACH BORROWER,HEREBY IRREVOCABLY AUTHORITY AND EMPOWERS THE BANK, BY ITs ATTORNEY;, OR THE PROTHONOTARY Olt THE CLERK OF ANY COURT OF.RECORD IN THE COMMONWEALTH OF PENNSYLVANIA, OR IN ANY JURISDICTION WHERE Rim TED BY LAW, UPON THE TE ATION DATE OR AT ANY TIME THEREAFTER, TO APPEAR FOR SUCH BORROWER A" CON MS AND ENTER JUDGMENT AGAINST IT IN FAVOR OF THE BANK FOR THE AMOUNT OF ALL OF THE OBLIGATIONS TO THE BANK UNDER THE LOAN DOCUMENTS, TOGETHER WITH REASONABLE ?COSTS OF SUIT AND WITH REASONABLE AND ACTUAL. COLLECTION COSTS (INCLUDING REASONABLE ATTORNEYS' FEES), WITH OR WITHOUT DECLARATION, AND WITHOUT STAY OF EXECUTION, AND WITH RELEASE OF ERRORS AND THE RIGHT TO IBM EXECUTION FORTHWITH, AND FOR DOING SO THIS AGREEMENT OR A COPY VERIFIED BY AFFIDAVIT SHALL BE A SUFFICIENT WARRANT. EACH BORROWER HEREBY WAIVES AND RELEASES ALL RELIEF FROM ANY AND ALL APPRAISEMENT, STAY OR EXEMPTION LAW OF ANY STATE NOW IN FORCE OR HEREAFTER ENACTED. THIS AUTHORITY AND POWER SHALL NOT 8E EXHAUSTED BY THE EXERCISE THEREOF AND SHALL CONTINUE UNTIL THE OBLIGATIONS TO THE BANK ARE FULLY PAID, PERFORMED, OISCHARGED AND SATISFIED. BEING FULLY AWARE OF ITB RIGMS'TO PRIOR NOTICE AND HEARING.ON THE VALIDITY OF.ANY CLAIMS THAT MAY BE ASSERTED AGAINS'T' IT 8Y THE BA14.K HEREUNDER BEFORE JUDGMENT CAN BE ENTERED AND BEFORE ASSETS OF ANY BORROWER CAN BE GARNISHED AND ATTACHED, EACH BORROWER HEREBY XNOWINGLY) VOLUNTARILY AND INTENTIONALLY WAIVES THESE RIGHTS AND EXPRESSLY AGREES AND CONSENTS TO THE BANK, UPON THE TEATION DATE OR AT ANY TIME THEREAFTER, ENTERING,TUDGMENT AGAINST EACH SUCH BORROWER BY CONFESSION AND ATTACHING AND GARNISHING THE 8ANK ACCOUNTS AND OTHER ASSETS OF EACH BORROWER WITHOUT PRIOR NOTICE OR OPPORTUNITY. FOR A:HEARING. EACH BORROWER ACKNOWLEDGES THAT IT HAS HAD THE ASSISTANCE OF COUNSEL IN THE REVIEW AND EXECUTION OF THIS AGREEMENT AND 1URTHZR ACKNOWLEDGES THAT THE MEANING AND .EFFECT OF THE FOREGOING PROVISIONS CONCERNING CONFESSION OF IUDGM ,NT HAVE BEEN FULLY EXPLAINED TO IT BY SUCIL COUNSEL. 9. mbee epus. (a) Rgi gon an?Qafta ion. Except.ag amended and supplemented hereby, all of the terms and provisions of the Loan Documents shall remain in full force and .1 p. pH1LU3-8p1172A-METASMAIA effect including loan provisions concerning payment of costs and expenses and, except as expressly amended hereby, are hereby ratified and confirmed. Each Borrower hereby ratifies and confirms that the Loan Documents are valid ..arid binding obligations and enforceable in accordance with their respective terms. This Agreement does not constitute a novation of any of the loans evidenced by the Loan Aocummu. (b) Ail notices required under this Agreement and, fiOm and after the date hereof, all notices required under the Loan'bocuments shall be in writing and shall be given by either (i) hand-delivery, (ii) first class mail (postage prepaid), (i ) reliable overnight commercial courier (charges prepaid), or (iv) telecopy or other means of electronic transmission, if confirmed promptly by any of the methods specified in clauses (i), (ii) and (iii) of this sentence, to the following addresses. If to any.Borrower: clo Reinhart Acquisition, Inc. 620 North Reading Road Lphrata, Pennsylvania 17522 Attention: Nicholas Reinhart Telecopy: With a copy to: Mattion4 Ltd. 2nd Floor 399 Market Street Philadelphia, PA 19106 Attention: John Mattioni, Esquire Telecopy: 215-923-2227 If to the Bank: Wachovia Bank, National Association 1.23 S. Broad .Streeet 7th Floor, PA1246 Philadelphia, PA 191:09-1199 Attention: Patrick Mcoovern Telecopy: 215-670-6645 With a copy to: Reed Smith LLF 2500 One Liberty Place Philadelphia, PA 19103 Attention: Peter S. Clark, Esquire -11- PHLLMWI172A-AAf TAGHMA Telecopy: (215) 851-1420 Notice given by teleovpy or other means of electronic transmission shall be deemed to have been given and received when sent. Notice by overnight courier shall be deemed to have been given and received on the date scheduled for ddivery. Notice by mail shall be deemed to have been given and received three (3) calendar days a*= the date first deposited in the United States Mail. Notice by hand delivery :shall be deemed to have been given and received upon delivery. A party may change its address by giving written notice to the other party as specified herein. (c) QqJW In the event and to the extent of any conflict between the provisions of this Agreement or the documents executed in connection with this Agreement and the provisions of the Loan Documents, the provisions of this.Agreerneat or the :documents executed in connection with this Agreement with respect thereto shall govern. (d) D 1 . warranties. All r entations and (e) Survival of lterstatiorts ?wa warranties contained in this Agreement, the documents executod in connection herewith and the Loan Documents shall survive the execution of this Agreement and .are material and have been or will be relied upon by the Bank, notwithstanding any investigation made by any person, entity or organization on either the.Baok's or any borrower's behalf. No implied representations or warranties are created or arise as a result of this Agreement. for purposes of the foregoing, all statements in any certificate or other writing required by this Agreement to be delivered to the Bank on or after the execution of this Agreement by or on behalf of ;any Borrower pursuant to and in,accordance with this Agreement or in connection with the transactions contemplated thereby shall be deemed to be representations and warranties contained in this,Agreement. (f) No W ve7. No failure or delay on the pant of the Bank in the exercise of any right, power or remedy shall operate as a waiver thereof, nor shall any single or partial exercise of any right, power or remedy preclude any other or further exercise thereof, or the exercise of any other right, power or remedy. (g) Headings. The hoWIngs and underscoring of articles, sections and clauses have been included herein for convenience only and shall not be considered in interpreting this Agreement. (h) Governinst Law, This Agreement shall be construed in accordance with and governed by the internal laws of the Commonwealth of Pennsylvania. (i) IInte. This .Agroernent and the documents referred to, comprising or relating to this Agreement constitute the sole agreement of the parties with respect to the subject matter hereof and thereof and supersede all oral negotiations and prior writings with respect to the subject matter hereof and thereof. -12- mnumiuzA4&In+sHW { ) Ames dmoluud WAiver. No mumdmont of" Agroement, and no waiver, discharge or termination of any me or more.of the provisions bacof, shall be.effective unless set forth in writing and signed by 411 of the parties hereto. (k) 5 WN end Assiszns. This Agreement (o shall be binding upon the successors end assigns, and Sank and the Borrowers and upon their to nominees, (ii) shall inure to the benef t.of the Borrowers and tho Bank and to their respective nominees, successors and assigns; g cpdjW however, that Sao .Borrower may assign its rights hereunder or any interest herein without obtaining the prior written co=ent of the Bank, and any such assignment or attempted assignment shall be void and of no effort with respect 'to the Bank. Notwithstanding the foregoing, Bards will cooperate with Borrowers reasonable efforts to raise required fimds, sell.awots, borrow against equity value in other real and personal assets, reasonably necessary to permit Borrowers to satisfy and.repay the loans under the Loan Agrioements. (1) SEAM-1 tv of Pro^'dM. Any provision of this Agreement that is held to be inoperative„ unenforceable, void or invalid in any jurisdiction shall, as to that jurisdiction, be.ineffective, unenforceable, void Or invalid without affecting the remaining provisions in that jurisdiction or the operation, enforeeability or validity of that provision in any other jurisdiction, and to this end the provisions of this Agrmnont'are, declared to be severable. (m) No JWrd-Pariv Beneficiaries. Notwithstanding anything to the contrary contained herein, no provision of this Agreement or any other document executed in connection herewith is intended to benefit any party other than the signatories hereto nor shall any such provision be enforceable by any other party. (rr) D1t (o) WAIVER OI, MY TRIAL. TO THE W(TENTFERMiTTTED BY APPLICABLE LAW, EACH BORROWER BY EXECUTION HEREOF AND BANK BY ACCEPTANCE HEREOF,. KNOWINGLY, VOLUNTARILY AND INTENTIONALITY WAIVE ANY RIGHT THEY MAY HAVE TO .A TRIAL :]3Y JURY IN RESPECT OF ANY LITIGATION BACKED ONy OR ARISING OUT OF, UNDER OR IN CONNECTION WITH THIS AGREEMENT, THE LOAN DOCUMENTS, ANY AGREEMENT CONTEMPLATED TO BE EXECUTED IN CONNECTION-WITH THIS AGREEMENT, OR ANY COURSE OF CONDUCT, COURSE OF DEALING, STATEMENTS (WHETHER. VERBAL OR WRITTEN) OR ACTIONS OF ANY PARTY WITH RESPECT HERETO. THIS PROVISION IS A MATERIAL INDUCEMENT TO SANK TO ACCEPT THIS AGREEMENT. THE TERMS HEREOF SHALL SUPERSEDE AND REPLACE ANY PRIOR AGREEMENT, RELATED TO ARBITRATION Olt DISPUTES BETWEEN THE PARTIES CONTAINED IN ANY LOAN DOCUMENT OR ANY OTHER DOCUMENT OR AGREEMENT HERETOFORE EXECUTED IN CONNECTION WITH, RELATED TO OR BEING MODIFIED BY, THIS AGREEMENT. (p) Counterparts" This Agreement may be executed in any number of counterparts and by the different parties on separate counterparts and each such counterpart shall -13- Prnl;ffl-vo„7z.>-Wr be deemed to be an original, but all such countorPUW sball together constitute one and the same Agreement. 'I'bis Agreement sball be doomed to have been executed and delivered when the Bank has received c(=terparts hereof exacuted by all parties listed on the signature pages below. ?l4 r?tN.i.?t??s.?-?r?s?a? IN WrrNBS.S WHEREOF, the patties to this Agent have mucd this Agreement to be executed individually, or by their duly authorized officers on the date firstwritten above. OUNM NISSAN, INC. Br/. ` i- Nathv- Nicholas Reinhart Title.-' R.A.P. MUSTRIEB, INC. Name: Nicholas R hdmd Title: AUTORAUS ACQUISITION, INC. By: Name: Nicholas Reinhart Title: REDMART FEDERAL, INC. By: Name: Nicholas Reinhart Title, RMBART ACQUISITION., INC. Y Name; Nicholas Reinhart Tittle: BPC PARTNERS Bar ----- Nicholas Reinhart, Pa tneF,, as to Partnership Only B ,,? ' ! :' Denise Reinhart, Partner,.as to Partnership Only -13- PHLt I-WI1M.4 4UrMHMA SNL TRADING, INC. Name: Nicholas Reinhart Title: V,0 AND E ENW.RM. SW7 LLC By: Name: Nicholas Reinhart Title: Nicholas Reinhart, individually 1. Debuse Reinhart, individually WACHOVIA BANK, NATIONAL ASSOCIATION By: . Name: Title: -1 b- P LU54M AMETASHW sNI. TRAVING, INC. By. Naim' Nicholas Reinhart ntlo: D, .E AND E ENTWR%a., UC By: Name: Nicholas Reinhw Title: Nicholas Reinhart, incliyiduaily Denisie RR ' individually WACHOVIA BANK, NATIONAL ASSOCIATION iv. IL- 1. GXa Y' Name: Patrick McG6wm Title: Senior Vke PreskW -16} rHLUa.oo,:, re,,. WTAaW ti;?,+ ? 6% GUARANTY GUARANTY dated February 23, 2007 made by BPC PARTNERS (the "Guarantor"), in favor of WACHOVIA BANK, NATIONAL ASSOCIATION (the "Bank") to secure the obligations of Dunphy Nissan, Inc., R.A.P. Industries, Inc., Autohaus Acquisition, Inc., Reinhart Acquisition, Inc., Reinhart Federal, Inc., SNL Trading, Inc., D, B & E Enterprises, LLC. and Nicholas Reinhart (collectively, the "Borrower"). BACKGROUND A. The Borrower and the Bank are parties to various agreements, instruments and other documents, including but not limited to those set forth on Exhibit A hereto (the "Loan Documents") pursuant to which the Bank has made certain loans (the "Loans") to the Borrower. B. Events of Default have occurred and are continuing under the Loan Documents and the Borrower, the Guarantor and the Bank have entered into a letter agreement dated the date hereof (the "Forbearance Agreement"). As a condition to entering into the Forbearance Agreement, the Bank has required that the Guarantor shall have executed and delivered to the Bank an instrument guaranteeing the obligations of the Borrower under the Loan Documents. C. The Guarantor has determined that the Bank's agreement to forbear under the Forbearance Agreement directly benefits, and that its execution, delivery and performance of this Guaranty is within the purposes and in the best interests of, the Guarantor. D. Capitalized terms used herein without definition shall have the meanings ascribed to them in the Loan Documents. COVENANTS NOW, THEREFORE, in consideration ofthe undertakings of the Bank pursuant to the Forbearance Agreement and intending to be legally bound, the Guarantor hereby agrees as follows: I . Guaran . Tile Guarantor hereby irrevocably, absolutely and unconditionally guarantees and becomes surety for the following obligations and liabilities (hereinafter collectively referred to as the "Obligations"): (a) the prompt payment by the Borrower, as and when due and payable, whether by acceleration or otherwise of all amounts now or hereafter owing by the Borrower in respect of the Loan Documents, whether for principal, interest, fees, expenses or otherwise, and the due performance and observance by the Borrower of its other obligations now or hereafter existing in respect of any of the Loan Documents and any renewals, extensions and modifications thereof-, and PHLLIB-985252 1-M ETASHMA 4t--- (b) any and all expenses, including reasonable attorneys fees, incurred by the Bank in enforcing its rights under this Guaranty. 2. Guarantor's Obligations Unconditional. (a) The Guarantor hereby guarantees that the Obligations will be paid strictly in accordance with the terms of the Loan Documents. The liability of the Guarantor hereunder shall be absolute and unconditional, irrespective of: (i) any lack of validity or enforceability of any such Loan Document or any agreement or instrument relating thereto, including, without limitation, the lack of validity or enforceability of all or any portion of the liens or security interests granted thereby; (ii) any change in the time, manner or place of payment of, or in any other term in respect of, all or any of the Obligations, or any other amendment or waiver of or consent to any departure from the terms of any such Loan Document; (iii) any exchange or release of, or non-perfection of any lien on or security interest in, any collateral, or any release or amendment or waiver of or consent to any departure from the terms of any other guaranty for all or any of the Obligations; (iv) any other circumstance which might otherwise constitute a defense available to, or a discharge of, the Borrower or any other guarantor or obligor in respect of the Obligations or the Guarantor in respect hereof; or (v) the absence of any action on the part of the Bank to obtain payment of the Obligations From the Borrower or from the Guarantor or from any other guarantor or obligor. (b) This Guaranty (i) is a continuing guarantee and shall remain in full force and effect until all of the Obligations and other expenses guaranteed pursuant to Section I hereof have been paid in full and no further Loans are available under the Loan Documents; and (ii) shall continue to be effective or shall be reinstated, as the case may be, if at any time any payment of any of the Obligations is rescinded, avoided or rendered void as a preferential transfer, impermissible set-off, fraudulent conveyance or must otherwise be returned or disgorged by the Bank upon the insolvency, bankruptcy or reorganization of either the Borrower or the Guarantor or otherwise, all as though such rescinded, avoided or voided payment had not been made, and notwithstanding any action or failure to act on the part of the Bank in reliance on such payment. 3. Waivers. The Guarantor hereby waives (i) promptness and diligence; (ii) notice of the incurrence of any Obligation by the Borrower; (iii) notice of any actions taken by the Bank or the Borrower under any Loan Document or any other agreement or instrument relating thereto; (iv) acceptance of this Guaranty and reliance thereon by the Bank; (v) presentment, demand of payment, notice of dishonor or nonpayment, protest and notice of protest with respect to the Obligations, and all other formalities of every kind in connection with the enforcement of the Obligations or of the obligations of the Guarantor hereunder or of any other guarantor, the omission of or delay in which, but for the provisions of this Section 3, might constitute grounds for relieving the Guarantor of its obligations hereunder; (vi) any requirement that the Bank protect, secure, perfect or insure any security interest or lien or any property subject thereto or exhaust any right or take any action against the Borrower, the Guarantor, any other person or any collateral; and (vii) notice of any election by the Bank to sell any of the property mortgaged, assigned or pledged as security for any of the Obligations at a public or private sale. 2 PHLLIO-985252 I-METASHMA c? 4. Subrogation and Similar Rights. The Guarantor will not exercise any rights which it may acquire by way of subrogation, indemnification or contribution, by reason of any payment made by it hereunder or otherwise,, until after the date on which all of the Obligations shall have been satisfied in full and until such time, any such rights against the Borrower shall be ftilly subordinate in lien and payment to any claim which the Bank now or hereafter has against the Borrower. If any amount shall be paid to the Guarantor on account of such subrogation, indemnification or contribution at any time when all of the Obligations and all other expenses guaranteed pursuant hereto shall not have been paid in full, such amount shall be held in trust for the benefit of the Bank, shall be segregated from the other funds of the Guarantor and shall forthwith be paid over to the Bank to be applied in whole or in part by the Bank against the Obligations, whether matured or unmatured, in accordance with the terns of the Loan Documents. If the Guarantor shall make payment to the Bank of all or any portion of the Obligations and all of the Obligations shall be paid in full, the Bank will, at the written request of the Guarantor, execute and deliver to the Guarantor (without recourse, representation or warranty) appropriate documents necessary to evidence the transfer by subrogation to the Guarantor of an interest in the Obligations resulting from such payment by the Guarantor, such subrogation to be fully subject and subordinate, however, to the Bank's right to collect any other amounts which may be due to the Bank by the Borrower. Representations and Warranties. The Guarantor hereby represents and warrants as follows: (a) The Guarantor (i) is duly formed or organized, validly existing and in good standing under the laws of the state of its formation; and (ii) has all requisite power and authority to execute, deliver and perform this Guaranty. (b) The execution, delivery and performance by the Guarantor of this Guaranty are within its power, have been duly authorized by all necessary action, do not and will not contravene any law or governmental regulation or any contractual restriction binding on or affecting the Guarantor or any of its property, and do not and will not result in or require the creation of any lien, security interest or other charge or encumbrance upon or with respect to any of its property. (c) No authorization or approval or other action by, and no notice to or filing with, any governmental authority or other regulatory body is required for the due execution, delivery and performance by the Guarantor of this Guaranty. (d) This Guaranty is a legal, valid and binding obligation of the Guarantor. enforceable against the Guarantor in accordance with its terms. (e) There is no action, suit or proceeding pending or threatened against or otherwise affecting the Guarantor before any court, arbitrator or governmental department, commission, board, bureau, agency or instrumentality which may materially and adversely affect the Guarantor's ability to perform its obligations hereunder. PHL LI B-985252 1-M E T ASHMA r11/ J) Each financial statement of Guarantor which has been previously furnished to the Bank presents fairly the financial position of Guarantor as at the date thereof and its results of operations for the period covered thereby, all in conformity with generally accepted accounting principles applied on a consistent basis, and since such date, there has been no material adverse change in Guarantor's financial condition or results of operations except as disclosed to the Bank in writing prior to the date hereof. 6. Right of Set-oft. Upon the occurrence and during the continuance of any Event of Default, the Bank may, and is hereby authorized at any time and from time to time, without notice to the Guarantor (any such notice being expressly waived by the Guarantor) and to the fullest extent permitted by law, to set-off and apply any and all deposits (general or special, time or demand, provisional or final) at any time held and other indebtedness at any time owing by the Bank to or for the credit or the account of the Guarantor against any and all obligations of Guarantor now or hereafter existing under this Guaranty, irrespective of whether or not the Bank shall have made any demand under this Guaranty and although such obligations may be contingent or unmatured. The Bank agrees promptly to notify the Guarantor after any such set- off and application made by the Bank, provided that the failure to give such notice shall not affect the validity of such set-off and application. The rights of the Bank under this Section 6 are in addition to other rights and remedies (including without limitation, other rights of set-ofd which the Bank may have. 7. Notices. Every notice and communication under this Agreement shall be given in accordance with the Forbearance Agreement. 8. Miscellaneous. (a) The Guarantor will make each payment hereunder in lawful money of the United States of America and in same day funds to the Bank at its address as set forth in the Forbearance Agreement. (b) This Guaranty contains the entire agreement of the parties hereto with respect to the subject matter hereof. No amendment of any provision of this Guaranty shall be effective unless it is in writing and signed by the Guarantor and the Bank, and no waiver of any provision of this Guaranty, and no waiver or consent to any departure by the Guarantor therefrom, shall be effective unless it is in writing and signed by the Bank, and then such waiver or consent shall be effective only in the specific instance and for the specific purpose for which given. (c) No failure on the part of the Bank to exercise, and no delay in exercising, any right hereunder or under any other Loan Document or any right against any other guarantor of the Obligations shall operate as a waiver hereof or thereof,- nor shall any single or partial exercise of any right preclude any other or further exercise thereof or the exercise of any other right. The rights and remedies of the Bank provided herein and in the other Loan Documents, and in any instrument signed by any other guarantor of the Obligations are cumulative and are in 4 PHLLIB-985252 1-METASHMA addition to, and not exclusive of, any rights or remedies provided by law. The rights of the Bank under any of the Loan Documents, under this Guaranty and under any other guaranty of the Obligations against any party thereto are not conditional or contingent upon any attempt by the Bank to exercise any of its rights under any other Loan Document, under this Guaranty or under any other guaranty of the Obligations against any such party or against any other person. (d) Any provision of this Guaranty which is prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective to the extent of such prohibition or unenforceability, and such prohibition or unenforceability shall not invalidate such provision to the extent it is not prohibited or unenforceable in any other jurisdiction, nor invalidate the remaining provisions hereof or thereof, all of which shall be liberally construed in favor of the Bank in order to effect the provisions hereof. (e) The obligations of the Guarantor hereunder shall not be subject to any counterclaim, setoff, deduction or defense based upon any related or unrelated claim which the Guarantor may now or hereafter have against the Borrower or the Bank. except payment of the Obligations. (f) This Guaranty shall (i) be binding on the Guarantor and its successors and assigns, and (ii) inure, together with all rights and remedies of the Bank hereunder, to the benefit of the Bank and its successors, transferees and assigns. Without limiting the generality ofthe foregoing clause (ii), the Bank may assign or otherwise transfer any note held by it, and the Bank may assign or otherwise transfer its rights under any other Loan Document or under any other guaranty of the Obligations to any other person, and such other person shall thereupon become vested with all of the benefits in respect thereof granted to the Bank, herein or otherwise. Notwithstanding the foregoing clause (f)(i), none of the rights or obligations of the Guarantor hereunder may be assigned or otherwise transferred without the prior written consent of the Bank. (g) This Guaranty shall be governed by and construed in accordance with the internal laws, and not the law of conflicts, of the Commonwealth of Pennsylvania. (h) The Guarantor agrees that any action or proceeding against the Guarantor to enforce, or arising out of, this Guaranty may be commenced in state or federal court in any county in the Commonwealth of Pennsylvania in which the Bank has an office, or in any other location where the Guarantor or any of its property is located, and the Guarantor waives personal service of process and agrees that a summons and complaint commencing an action or proceeding in any such court shall be properly served and shall confer personal jurisdiction if served by registered or certified mail in accordance with Section 7 hereof. (i) The paragraph headings used herein are for convenience only and do not affect or modify the terms and conditions hereof. 8. CONFESSION OF JUDGMENT. THE GUARANTOR HEREBY IRREVOCABLY AUTHORIZES AND EMPOWERS THE BANK, BY ITS ATTORNEY, PHL L I B-885252 1-METHS HM A Al? OR THE PROTHONOTARY OR THE CLERK OF ANY COURT OF RECORD IN THE COMMONWEALTH OF PENNSYLVANIA OR IN ANY JURISDICTION WHERE PERMITTED BY LAW, UPON THE OCCURRENCE OF AN EVENT OF DEFAULT AS DEFINED IN THE FORBEARANCE AGREEMENT OR AT ANY TIME THEREAFTER, TO APPEAR FOR THE GUARANTOR AND CONFESS AND ENTER JUDGMENT AGAINST IT IN FAVOR OF THE BANK IN ANY JURISDICTION IN WHICH THE GUARANTOR OR ANY OF ITS PROPERTY IS LOCATED FOR THE AMOUNT OF ALL OBLIGATIONS, TOGETHER WITH COSTS OF SUIT AND WITH ACTUAL COLLECTION COSTS (INCLUDING REASONABLE ATTORNEYS' FEES), WITH OR WITHOUT DECLARATION, AND WITHOUT STAY OF EXECUTION, AND WITH RELEASE OF ERRORS AND THE RIGHT TO ISSUE EXECUTION FORTHWITH, AND FOR DOING SO THIS AGREEMENT OR A COPY VERIFIED BY AFFIDAVIT SHALL BE A SUFFICIENT WARRANT. THE GUARANTOR HEREBY WAIVES AND RELEASES ALL RELIEF FROM ANY AND ALL APPRAISEMENT, STAY OR EXEMPTION LAW OF ANY STATE NOW IN FORCE OR HEREAFTER ENACTED. THIS AUTHORITY AND POWER SHALL NOT BE EXHAUSTED BY THE EXERCISE THEREOF AND SHALL CONTINUE UNTIL THE OBLIGATIONS ARE FULLY PAID, PERFORMED, DISCHARGED AND SATISFIED. BEING FULLY AWARE OF ITS RIGHTS TO PRIOR NOTICE AND HEARING ON THE VALIDITY OF ANY CLAIMS THAT MAY BE ASSERTED AGAINST IT BY THE BANK UNDER THIS AGREEMENT BEFORE JUDGMENT CAN BE ENTERED AND BEFORE ASSETS OF THE GUARANTOR CAN BE GARNISHED AND ATTACHED, THE GUARANTOR HEREBY KNOWINGLY, VOLUNTARILY AND INTENTIONALLY WAIVES THESE RIGHTS AND EXPRESSLY AGREES AND CONSENTS TO THE BANK, UPON THE OCCURRENCE OF AN EVENT OF DEFAULT, OR AT ANY TIME THEREAFTER, ENTERING JUDGMENT AGAINST THE GUARANTOR BY CONFESSION AND ATTACHING AND GARNISHING THE BANK ACCOUNTS AND OTHER ASSETS OF THE GUARANTOR, WITHOUT PRIOR NOTICE OR OPPORTUNITY FOR A HEARING. THE GUARANTOR ACKNOWLEDGES THAT IT HAS HAD THE ASSISTANCE OF COUNSEL IN THE REVIEW AND EXECUTION OF THIS AGREEMENT AND FURTHER ACKNOWLEDGES THAT THE MEANING AND EFFECT OF THE FOREGOING PROVISIONS CONCERNING CONFESSION OF JUDGMENT HAVE BEEN FULLY EXPLAINED TO THE GUARANTOR BY SUCH COUNSEL. 9. Judicial Proceedings. Any suit, action, or proceeding, whether claim or counterclaim, brought or instituted by the Guarantor or the Bank, or any of their successors or assigns, on or with respect to this Agreement or the dealings of the Guarantor or the Bank with respect hereto, shall be tried only by a court and not by a jury. THE GUARANTOR HEREBY KNOWINGLY, VOLUNTARILY AND INTENTIONALLY WAIVES ANY RIGHT TO A TRIAL BY JURY IN ANY SUCH SUIT, ACTION OR PROCEEDING. Further, the Guarantor waives any right it may have to claim or recover, in any such suit, action or proceeding, any special, exemplary, punitive or consequential damages or any damages other than, or in addition to, actual damages. THE GUARANTOR ACKNOWLEDGES AND PH LLI B-985252 1-M ETASHM A V AGREES THAT THIS PARAGRAPH 1S A SPECIFIC AND MATERIAL ASPECT OF THIS AGREEMENT AND THAT THE BANK WOULD NOT EXTEND CREDIT TO THE BORROWER IF THE WAIVERS SET FORTH IN THIS PARAGRAPH WERE NOT A PART OF THIS AGREEMENT. IN WITNESS WHEREOF, the Guarantor has caused this Guaranty to be executed by an officer thereunto duly authorized, as of the date first above written. WITNESgr% Q-V&4 Name: a0%'13 5-?? Name: Je*+,J+ BPC PARTNERS t By: ai a icholas Reinhart Title: General Partner By: ame: Denise G. Reinhart Title: General Partner PH LlJ 8-985252 1-M ET ASHMA Exhibit A Loan A - $6,000,000.00 Loan to Dunphy Nissan, Inc. 1. Promissory Note Wholesale Lien of Credit for $6,000,000.00 dated August 12, 2005 by Dunphy Nissan, Inc. in favor of Wachovia Bank, NA. 2. Modification Number One to the Promissory Note dated December 30, 2005 between Dunphy Nissan, Inc. and Wachovia Bank, NA. 3. Auction Funding Addendum dated August 12, 2005 between Dunphy Nissan, Inc. and Wachovia Bank, NA. 4. Floorplan Connection Addendum dated August 12, 2005 between Dunphy Nissan, Inc. and Wachovia Bank, NA. Wholesale Security Agreement dated December 30, 2005 by Dunphy Nissan, Inc. in favor of Wachovia Bank, NA. 6. Wholesale Security Agreement dated August 12, 2005 by Dunphy Nissan, Inc. in favor of Wachovia Bank, NA. Loan B - $2,000,000.00 Loan to R.A.P. Industries, Inc. 7. Promissory Note Wholesale Lien of Credit for $2,000,000.00 dated December 20, 2005 by R.A.P. Industries, Inc. in favor of Wachovia Bank, NA. Modification Number One to the Promissory Note dated July 13, 2006 between R.A.P. Industries, Inc. and Wachovia Bank, NA. 9. Loan Agreement dated December 20, 2005 between R.A.P. Industries, Inc. and Wachovia Bank, NA. 10. Auction Funding Addendum dated December 20, 2005 between R.A.P. Industries, Inc. and Wachovia,Bank, NA. 11. Floorplan Connection Addendum dated December 20, 2005 between R.A.P. Industries, Inc. and Wachovia Bank, NA. 12. Wholesale Security Agreement dated December 20, 2005 by R.A.P. Industries, Inc. in favor of Wachovia Bank, NA. Loan C - $5,000,000.00 Loan to Autohaus Acquisition, Inc. and Reinhart Federal, Inc. 13. Promissory Note Wholesale Lien of Credit for $5,000,000.00 dated December 30, 2005 by Autohaus Acquisition, Inc., Reinhart Federal, Inc. in favor of Wachovia Bank, NA. 14. Loan Agreement dated December 30, 2005 between Autohaus Acquisition, Inc., Reinhart Federal, Inc. and Wachovia Bank, NA. PHLLIB-984745. t-METASHMA 15. Auction Funding Addendum dated December 30, 2005 between Autohaus Acquisition, Inc., Reinhart Federal, Inc. and Wachovia Bank, NA. 16. Floorplan Connection Addendum dated December 30, 2005 between Autohaus Acquisition, Inc., Reinhart Federal, Inc. and Wachovia Bank, NA. 17. Wholesale Security Agreement dated December 30, 2005 by Autohaus Acquisition, Inc., Reinhart Federal, Inc. in favor of Wachovia Bank, NA Loan D - $6,000,000.00 Loan to Reinhart Acquisition, Inc 18. Promissory Note Wholesale Line of Credit for $6,000,000.00 dated December 19, 2005 by Reinhart Acquisition, Inc. in favor of Wachovia Bank, NA. 19. Loan Agreement dated December 19, 2005 between Reinhart Acquisition, Inc. and Wachovia Bank, NA. 20. Auction Funding Addendum dated December 19, 2005 between Reinhart Acquisition, Inc. and Wachovia Bank, NA. 21. Floorplan Connection Addendum dated December 19, 2005 between Reinhart Acquisition, Inc. and Wachovia Bank, NA. 22. Wholesale Security Agreement dated December 19, 2005 by Reinhart Acquisition, Inc. in favor of Wachovia Bank, NA. Loan E - $2,000,000.00 Loan to BPC Partners 23. Promissory Note for $2,000,000.00 dated December 15, 2005 by BPC Partners, Nicholas Reinhart, Denise Reinhart in favor of Wachovia Bank, NA. 24. Loan Agreement dated December 15, 2005 between BPC Partners, Nicholas Reinhart, Denise Reinhart and Wachovia Bank, NA. 25. Wachovia Swap Transaction Confirmation dated December 1, 2005 between BPC Partners and Wachovia Bank, NA. 26. Open-End Mortgage and Assignment of Rents dated December 15, 2005 by BPC Partners in favor of Wachovia Bank, NA. Loan F - $2,800,000.00 Loan to SNL Trading, Inc. 27. Promissory Note for $2,800,000.00 dated September 16, 2005 by SNL Trading, Inc. in favor of Wachovia Bank, NA. 28. Modification Number One to the Promissory Note dated December 20, 2005 between SNL Trading, Inc. and Wachovia Bank, NA. -2- PHLLIB-984745.1-METASHMA 29. Loan Agreement dated September 16, 2005 between SNL Trading, Inc. and Wachovia Bank, NA. 30. Wachovia Swap Transaction Confirmation dated September 19, 2005 between SNL Trading, Inc. and Wachovia Bank, NA. 31. Wachovia Swap Transaction Confirmation dated November 15, 2005 between SNL Trading, Inc. and Wachovia Bank, NA. 32. Open-End Mortgage and Assignment of Rents dated September 16, 2005 by SNL Trading, Inc. in favor of Wachovia Bank, NA. Loan G - $1,160,000.00 Loan to SNL Trading, Inc. 33. Promissory Note for $1,160,000.00 dated December 15, 2005 by SNL Trading, Inc. in favor of Wachovia Bank, NA. 34. Loan Agreement dated September 16, 2005 between SNL Trading, Inc. and Wachovia Bank, NA. 35. Wachovia Swap Transaction Confirmation dated December 23, 2005 between SNL Trading, Inc. and Wachovia Bank, NA 36. Open-End Mortgage and Assignment of Rents dated December 15, 2005 by SNL Trading, Inc. in favor of Wachovia Bank, NA. Loan H - $1,840,000.00 Loan to D, B and E Enterprises, LLC 37. Promissory Note for $1,840,000.00 dated December 15, 2005 by D, B and E Enterprises, LLC in favor of Wachovia Bank, NA. 38. Loan Agreement dated December 15, 2005 between D, B and E Enterprises, LLC and Wachovia Bank, NA. 39. Wachovia Swap Transaction Confirmation dated December 23, 2005 between D, B and E Enterprises, LLC and Wachovia Bank, NA. 40. Open-End Mortgage and Assignment of Rents dated December 15, 2005 by D, B and E Enterprises, LLC in favor of Wachovia Bank, NA. Loan I - $100,000.00 Loan to R.A.P. Industries, Inc., Autohaus Acquisition, Inc., Reinhart Acquisition, Inc. and Dunphy Nissan, Inc. 41. Promissory Note for $100,000.00 dated October 31, 2006 by R.A.P. Industries, Inc., Autohaus Acquisition, Inc., Reinhart Acquisition, Inc. and Dunphy Nissan, Inc in favor of Wachovia Bank, NA. -3- P H L L I B-984745.1-M ETAS H MA 42. Loan Agreement dated October 31, 2006 between R.A.P. Industries, Inc., Autohaus Acquisition, Inc., Reinhart Acquisition, Inc. and Dunphy Nissan, Inc and Wachovia Bank, NA. 43. Security Agreement dated October 31, 2006 by R.A.P. Industries, Inc. in favor of Wachovia Bank, NA. 44. Security Agreement dated October 31, 2006 by Autohaus Acquisition, Inc. in favor of Wachovia Bank, NA. 45. Security Agreement dated October 31, 2006 by Dunphy Nissan, Inc in favor of Wachovia Bank, NA. 46. Security Agreement dated October 31, 2006 by Reinhart Acquisition, Inc. in favor of Wachovia Bank, NA. Loan J - $100,000.00 Loan to Reinhart Acquisition, Inc., Autohaus Acquisition, Inc. and Dunphy Nissan, Inc. 47. Promissory Note for $100,000.00 dated August 31, 2006 by Reinhart Acquisition, Inc., Autohaus Acquisition, Inc., and Dunphy Nissan, Inc, in favor of Wachovia Bank, NA. 48. Loan Agreement dated August 31, 2006 between Reinhart Acquisition, Inc., Autohaus Acquisition, Inc., and Dunphy Nissan, Inc. and Wachovia Bank, NA. 49. Security Agreement dated August 31, 2006 by Reinhart Acquisition, Inc. in favor of Wachovia Bank, NA. Loan K - $100,000.00 Loan to Dunphy Nissan, Inc., Autohaus Acquisition, Inc., and Reinhart Acquisition, Inc. 50. Promissory Note for $100,000.00 dated August 31, 2006 by Dunphy Nissan, Inc, Autohaus Acquisition, Inc., and Reinhart Acquisition, Inc. in favor of Wachovia Bank, NA. 51. Security Agreement dated August 31, 2006 by Dunphy Nissan, Inc. in favor of Wachovia Bank, NA. Loan L - $100,000.00 Loan to Autohaus Acquisition, Inc., Dunphy Nissan, Inc. and Reinhart Acquisition, Inc. 52. Promissory Note for $100,000.00 dated August 31, 2006 by Autohaus Acquisition, Inc., Dunphy Nissan, Inc and Reinhart Acquisition, Inc. in favor of Wachovia Bank, NA. 53. Security Agreement dated August 31, 2006 by Autohaus Acquisition, Inc. in favor of Wachovia Bank, NA. -4- PHLLIB-984745.1-METASHMA Loan M - $2,880,000.00 Loan to Nicholas Reinhart and Denise G. Reinhart 54. Promissory Note for $2,880,000 dated December 15, 2005 by Nicholas Reinhart and Denise G. Reinhart in favor of Wachovia Bank, NA 55. Open-End Mortgage and Assignment of Rents dated December 15, 2005 by BPC Partners in favor of Wachovia Bank, NA. Loan N - $1,150,000.00 Loan to Nicholas Reinhart and Denise G. Reinhart 56. Promissory Note for $1,150,000 dated October 25, 2006 by Nicholas Reinhart and Denise Reinhart in favor of Wachovia Bank, NA 57. Loan Agreement dated October 25, 2006 between Nicholas Reinhart and Denise Reinhart and Wachovia Bank, NA 58. Security Agreement dated October 25, 2006 by Nicholas Reinhart and Denise Reinhart in favor of Wachovia Bank, NA OTHER 59. Mortgages and Guaranties by Borrowers executed in connection with the Original Forbearance Agreements. -5- PHLL I B-984745.1-M ETASHMA Ex Imo: 6 ,i ? aaiQ,FE@ r ), 1i.Jii7g F; Fhai132o91 sect W'000.oo IAN"GEMENTDFS IT PROMISSORY NOTE WHOLESALE LINE OF CREDIT V(=, P. , 2,%34'2 August 1Z . 2005 Dunphy Nla?san. Inc. 5018 Township Line Road Drexel Hilt, Pennsylvania 19026 (individually and collectly* "Borrower") Wachovia Hsutk, Nations! Assoeiaton 790' River Road Summand, New Jersey 07907 (Hereinafter referred to as 'Bang') 13000 rer promises to pay to the order of BanK in lawful money of the united States of America, at its office Indicated above or wherever also Bank may (58,000,00.00) or such sum as may be advanced ar?andsum m of x t min to Mime awa inter e0st onDollam the unpaid principal balance at the rate and on the terms provided in thlS Promissory Note (includIEN all renewals, extensions or modifications hereof thls "Note"). ADVANCES. Funds may to advanced in the dlscrFffon of Batik from time to tune to or on behalf of the Borrower under this Note subject to the following eoWftlom., (a) Each advance will be subject to the approval of Banlti and Bank may, with or WifhOUt cau, e, refuse any request for an advance, (b) Any advance made by Bank for the purchase of inventory shag be used only for such purpose. and not for any other purp088: (0) AW advance made by [lank for the purph.ase of new or used inventory may be made directly to the manutkcxurer or other seller by any means which Bank may elect (Including, without 11MR4011. eledronic funds transfer debit or automated clearing house dew), and Bangs books and rem relEft to such advances shall, In the absence of manifest error, be eonclusmlre, provided such books and records are kept and ?walained reasonably and in good faith, and, (d) III any case where Bank sends Borrower a statenment of a transacWri or of.a series of transactio the terms of this Note, ns undertaken gorrower sfcag be deemed 10 have 3dmowfedged the indebtedness on th ;terms set forth therein, unless Borrower not?fies Bank in waiting of any correction or objection therbb wiUn five (5) business days after receipt thereof. Each advance by Bank to Borrower hereunder shall becorne a Part of the princlpat amount of the Note balance outstandkV to Borrower c Wculated daily after first deducting all Principal payments and adding all advances or other principal debits, Botrower hereby acknowledges and agrees that in the event advances made-hereunder exceed the above-sWed total Note amount; such advances shall be subject to the terms and conditions herein and in the Loan Documents and 13OMowet shall be directly liable for such over4imlt amount LOAN AGREEMENT. This Note Is subject to the provisions of that certain Wholesale Loan Agreement between flank and Borrower of even date herewith, as modified from time to brne. WHOLESALE LINE OF CREDIT. Advance by Bank to Borrower under this Note shall be In the form of a revolving line of credit (the 'Wholesale Line of CredLC). The Wholesale Line of Credit shall consist of the sepeate line(s) of credit described below, USE OF PROCEEDS. Borrower shag use the proceeds of the Wholesale Lane of Credit evidenced by this Note for the cemmerclal lurPoses of Borrower, as follows- on o, PC1394956XXXXOOI CDCNOTEXXX ozicF E!, b. ?,),; i,s .: 1 lFI'is13zo?'y,' 1,1ANJ'' EUIEN 1 DPS IT Up to .55,000,000.00 wig be used to finance Borrower's Inventory of new motor vehldes ("Wholesale line - New') Up to $1,000,000.00 will be used to finance Borrowwee inventory of used motor vehicles ('Wholesale Line = Used'). seCURITY. Borrower has granted Bank a security interest In the collateral desodbed in ttie Loan Documents. Including, but not limited to, personal properly collateral described in that certain Security Agreement of even date herewith. INTEREST RATE. The per annum interest rate to be charged on all advances under the separate line(s) of credit -shall be as follows: Wholesale Lihe - New will be 1-Month LIBOR plus 1.45%; Wholesale Line -- Used will be 1-Month LIBOR plus 1.45% ('Interest Rate")_ As used' herein, "LIBOR' means, with respect to each Interest Period (defined below), the rate for U.S. dollar deposits with a maturity equal to the number of months specified above, as reported on Telerate page 6750 as of 11;00 mrn.. London time, on the second London business day before such Interest Period begins. or, in the ma of the first Interest Period, the second London business day before the first day of the calendar month during which such Interest Period begin (or if not so reported, then as determined by the Bank from another reoognized source or Interbank quotaaon). The 'Interest Rate for each Interest Period (defined below) strati accrue each day during such Interest Period, commencing on and including the fast day to but excluding the last day. `Interest Period' means each period commencing on the first day of the calendar month and ending on the tiist day of the next succeeding calendar month; provided (1) the first Interest Period shall commence on the date hereof and (if) any Interest Period that would othenHlse extend past the maturity date of this Note shah, end on the maturity date of this Note. In all cases, interest shall be calculated on a basis of a 360 day year for the actual number of days In the applicable period. BREACH RATE. In addition to all other tights contained in this Note, if Borrower fails to comply with the terms and provisions of this Note and other Loan Documents, then all outstanding Obligations shall dear interest at the above-stated Interest Rate plus 010A. REPAYMENT TERMS. Interest accrued during each calendar month shalt be payable on the le day of the immediately following calendar month. Advances under this Note shall be payable as follows: Wholesale Line - New 1=ach advance made under the Wholesale Line - New shall W payable in full upon demand, or if prior demand is not made, on the le day of the month Immediately following the 16th month after the date of the advance, with prNticipal cvrtallinents payable on the le day of the month immediately lollowirg the le and le months after the date of the advance. Each principal curtailment shall equal10% of the original amount advanced. Each advance for a motor vehicle under the Wholesale Line - New shall not exceed Borrowers factory or distributor invoice price, including freight; for such motor vehicle. Wholesale Line - Used Each advance made under the Wholesale Line - Used shall be payable in full upon demand, or if prior demand IS not made, an the Ie day of the month immediately following the 6th month after the date of the advance, with a principal curtailment payable on the 15s' day of the month immediately following the 3 month after the date of the advance- The principal cufti6nent shall equal 10% of the original amourd advanced. Each advance for a motor vehicle under the Wholesale Line - Used shag not exceed 13orraosar's invoice cast when the motor vehicle is. purchased at an accredited auction for resale or 10p% of the average Black Book Wholesale price on all other motor vehicles. In addition, the Wholesale Line - Used shall be-available only with respect to current and the preceding 5 model years with mileage not exceeoing 75,000 miles. B30W (Rev 2zok Page o2/F_?E!. 1'? Fh,,ls132o!R "dlANA(iEMEN DFS IT 4.' 0V124 ADDITIONAL P'AYMI,NTS, In addition to the payments required above, as a hereunder is sold particular vehicle financed or otherw1Se dr'eposed Borrower shall pay to Bank the amount advanced, less any papal ?1 of, treats rrrade, with respect to such vehicle upon the earner to Occur of (t) the receipt by Borrower of the Proceeds of such sale or other disposition (whether cash brJ rMs day after such sale or other deposition. defined In 11 U.S.C. If $orrcwer hag entered l e nto or + adlts) or (ii} the 5 § 101, as in effect from tkme to p agreement (as hereunder, nom ) in connection with the?eXtensloh of credit payment shall af>'eot Borrowers obligation to continue making payments under the swap agreement With Bank or any of its affiliates, which shall remain in full farce and effect notWithstanding e=h repayment, subject to the terms of the swap agreement tATE CHARGE. If Payments') are rotor any payments (other than payments due under the paragraph entitled `Additional past due far r or more l made. such Bo aunt a ? pay to Bank a late charge equai to 4% of each payment 15 charge shah not apply to payments due at rat may be permitted by law, *Mohevrar is greater, This late in an amount not greater then the hi hest ecceti°n hereof; unless such late payment is g periodic payment due hereunder. Acceptance by Bank of any late payment without an acoompanying We charge shalt not be deemed a waiver of Bank's right to collect such late charge or to collect a late charge for any subsequent late Payment received. DEMAND NOTE. Notwithstanding the scheduled repayment terms above or any other provisions of this Note or the Loan Documents, Borrower acknowledges and agrees that this is a d mand Note and that all Obl%Wons hereunder shall become immediately due and SanK In orrower add?rtion, fm OblrgaWns hereunder shall automatically become immedpayable u demand iately dueoand payable if B Y guarantor or endorser of this Note commences or has commenced against it a bardauptcy or insolvency proceeding. DEFINITION& Loan Documents. The term "Loan Docum nts^, as used In this Note and the other Loam Documents, refers to all documerft exeouted in connection with or related to the loan evldenced'by this Note-and any prior notes which evidence all or an (afters of credit issued pursuant to any loan y tin of the roan evidenced by this Note, and such left oers of fixed' a9reement to which this Note is subject; any applications or fit and any other documents exerted in connection therewith or related thereto, and may Include, without flmltation, a commitment letter that survives closing, a loan agreement, this Note, guaranty agreements, security agreements, instruments, an renewals or security instruments, financing statements, mortgage include swa y modifications, whenever any of the roregoing are executed, but does not p agreements (as defined in 11 U.S.C. § 101, as in effect from time to time). Obpgations. The tw m "Obligations", as used in this Note and the other Moan Documents, refers to any and all indebtedness and other obligations under this Note, all other obligations under any Document(s), and all obligations under any swap agreements (as defined in 11 U.S.C. other Loan from time to time) between Borrower and Bank, or its affiliates, whenever executed 101, Corwin in effW or. w Terms. All terms that are used but not otherwise defined fin any of the Loan Documents sheI he" he definitions provided in the Uniform Commercial Code, ATTORNEYS' FEES AND OTHER COLI.i:CTION COSTS. Borrower shall pay'ail of Bank's reasonable expenses actuary incurred to enforce or coiled any of the obi reasonable arbitration, pamalegais', attomeys' and experts' fees and °? including, without d without lofhe commencement of a sulf, in any trial, arbitration, or administrartive?neediwhether incurred bankruptcy proceeding. Proceedng, or in any appellate or USURY! if at any time the effective interest rate under this Note would, but for this paragraph, exceed the maximum lawful rate, the effective Interest rate under this Note shall be the maximum lawful rate, and any amount received by Bank in ex of such rate shall be applied to principal and then to fees and expenses, or, if no such amounts are owing retuned to Bonvwec &I&- cRa•2.0I Pape o:.F.tE, 1' ??P14?szszoR q?:'yAS???ENI- AFS IT c a a P. " 1 J F112 In WITNESS WHEREOF, Borrower, on the day and year first above written, has Caged this Note to ba executed under seal- Dunphy Nissan, Inc. By' ent (SEAL) N" olds Fi ? a ?id Ddo Znddnp . 107787 - 2D74 dca CAT-D*W*SDOOG4 FacftIt)88415$ G35MO (Fh-=o) Page 02/0--C, ?V E???N ?DFS IT MODIFICATION NUM13ER ONE TO THE PROWSSQRY NOTE EQwnphy Nissan. Inc. 5018 Township Line Road Drexel Hill, Pennsylvania 19020 (Hereinafter reierred to as -13orrowee,) Wachovia,Bank, NationafAssoofatton Phllade,IP , Pennsylvania 19109 (Hereinafter referred to as "Bank-) ?• --- r ?L124 THIS AGREEMENT Is entered into as of Borrower, by and between Bank and RECITALS Bank (s the holder of a Promissory' Note Wholesale Line of Credit exeeuted and delivered by Borrower, dated August 12, 2005, in the origfnat principal amount of $6,800,000.00 (the, Note"); Borrower and Bank have agreed to modify the terms of the Note. In 00119111dration of SMWs continued extension or credit and the agreements contalnW herein, the parties agree as follows: AGREEMENT AGKNoWLEDGMENT OF BALANCE. Borrower acknowledges that the most re0ent Commercial Loan Invoice gent to Borrower with respect to the obligations under the Note is owect MODIFICATIONS. The Note is hereby modified by deleting the provisions in the Note establishing the repayment terms and subetttutlhg the following In their place and stead: REPAYMENT TERMS. Advances under the Note shall be payable as folows: wholesale Line - New Each advance made under the Wholesale Urea _ New shall be payable in full upon demand, or if prior demand is not muMe, on the I& day of the month immediately following the 18th month after lir a da te o the 'advanc, with principal curtailments payable on the I IP day of the month Immediately fallowing t f 0 le and 15"' months after the date of the advance. Each principal curtallment shall equal 10% of the original amount advanced. Each advance for a motor vehicle under the Wholesale Line - New shall not exceed gorrower's factory or distributor invofce price, including freight, for such motor vehicle. Wholesale Lirm - Used Each advance made under the Wholesale Line - Used shall be demand is not made, on the 1001 day of the month immediately fallo?ni of ng the t6th month fterdthe da eri the advance, with a principal curtailment payable oh the I V day of 3`d the month immediately following the month after the date of the advance. The principat curtaiilrnentshall equal 109A of the original amount advat?ced. Each advance for a motor vehicle under the Wholesale Line - Used shall not exceed Borrower's kwolce cost When the motor vehicle Is purchased at an accredited auction for resale or 100% ¦ ,a?? PC1437578XXXXOOJ CDMAEXXXXX M? OZ/CC -C• c . I- 1, r t132o4•' l 1`-q r p. ???C?'] DFS I'S' - - F ??xLg J to be consistent However, In the event of any Inconsistencies among this Agreement and any of the Loan Documents, the terms of this Agreement, and then the Note, shall control. This Agreement may be wcecuted In any number of eounterpaf and by the different parties on Separate counterpart shall be deemed an original, but all such counterparts shall together cotite one and counterparts. Each such same agreement Terms used in this Agreement which are capitalized annot othe wise defined he elin shall have the meanings asonbed to such terms in the Notes PUNITIVE DAMAGES. EACH OF THE PARTIES HERIrTO'1 INCLUDING BLIABILITY; ACCEPTANCE HEREOF, AGREES THAT IN ANY JUDICIAL, MEDIATION OR ARBITRATION PROCEEDING OR ANY CLAIM OR CONTROVERSY BETWEEN OR AMONG THEM THAT MAY ARISE OUT OF OR BE IN ANY WAY CONNECTED WITH THIS AGREEMENT, THE LOAN DOCUMENTS OR ANY OTHER AGREEMENT OR DOCUMENT SETWESN OR AMONG THEM OR THE OBLIGATIONS EVIDENCED HEREBY OR RELATED HERETO, IN NO EVENT SHALL ANY PARTY HAVE A REMEDY OF, OR Be LIABLE TO THE OTHER FOR, (1) INDIRECT, SPECIAL OR CONSEQUENTIAL DAMAGES OR (2) PUNITIVE OR EXEMPLARY 6AMAGES. EACH OF THE PARTIES HEREBY EXPRESSLY WAIVES ANY RIGHT OR CLAIM TO PUNITIVE OR EXEMPLARY DAMAGES THEY MAY NAVE OR WHICH MAY ARISE IN THE FUTURE IN CONNECTION WITH ANY SUCH PROCEEDING, CLAIM OR CONTROVERSY, WHETHER THE SAME IS RESOLVED BY ARBITRATION, MEDIATION, JUDICIALLY OR OTHERWISE FINAL AGREEMENT. This Agreement and the other Loan Documents represent the final agreement between the parties and may not be contradicted by evidence of prior, contemporaneous or subsecluent oral agreements of the parties. There are no unwritten oral agreements between the parties. Borrower reaffirms and restOes the following with respect to the Note as modified herein: CONFESSION OF JUDGMENT. THE FOLLOWING PARAGRAPH SF7S FORTH A POWER OF AUTHORITY FOR ANY ATTORNEY TO CONPESS JUDGMENT AGAINST BORROWER. IN GRANTING THIS WARRANT OF ATTORNEY TO CONFESS JUDGMENT AGAINST ]BORROWER, THE BORROWER, FOLLOWING CONSULTATION WITH (OR DECISION NOT TO CONSULT) SEPARATE COUNSEL FOR BORROWER AND WITH KNOWLEDGE OF THE LEGAL EFFECT HEREOF, HEREBY KNOWINGLY, INTENTIONALLY, VOLUNTARILY, INTELLIGENTLY AND UNCONDITIONALLY WAIVES ANY AND ALL RIGHTS THE BORROWER HAS OR MAY HAVlr TO PRIOR NOTICE AND AN OPPORTUNITY FOR HEARING UNDER THE RESPECTIVE CONST UNITED STATES OF AMERICA, COMMONWEALTH OF PENNS?VANI, OR ELSEWHERE INCLUDING, WITHOUT LIMIYATION, A HEARING PRIOR. TO GARNISHMENT AND ATTACHMeW OF THE BORROWER'S BANK ACCOUNT AND OTHER ASSETS. BORROWER A0KN0WLLdGES AND UNDERSTANDS THAT BY ENTERING INTO THIS AGREEMENT CONTAINING A CONFESSION OF JUDGMEENT CLAUSE THAT BORROWER IS VOLUNTARILY, f irELLIGENTLY AND KNOWINGLY GIVING UP ANY AND ALL RIGHTS, INCLUDING CONSTITUTIONAL RIGHTS, THAT BORROWER HAS OR MAY HAVE TO NOTICE AND A HEARING 13EFORE JUDGMENT CAN 13E ENTERED AGAINST BORROWER AND BEFORE THE BORROVM" ASSETS, INCLUDING, WITHOUT LIMITATION,. ITS BANK ACCOUNTS, MAY BE GARNISHED, LEVIED, EXECUTED UPON AND/OR ATTACHED. BORROWER UNDERSTANDS THAT ANY SUCH GARNISHMENT, LEVY, EXECUTION ANWOR ATTACHMENT SHALL RENDER THE PROPERTY GARNISHED, LEVIED, EXECUTED UPON OR ATTACHED IMMEDIATIFLY UNAVAILABLE TO BORROWER. IT IS SPrECIFICALLY ACKNOWLEDGED BY BORROWER THAT THE BANK HAS RELIED ON THIS WARRANT OF ATTORNEY AND YHE RIGHTS WAIVED BY BORROWER HEREIN IN RECEIVING THIS AGREEMENT AND AS AN INDUCEMENT TO GRANT FINANCIAL ACCOMMODATIONS TO THE BORROWER. If a Default occurs under this Agreement or any other Loan Do sev eeslly authorizes and em ewers a Currents, each Borrower hereby jointly and county in the Commonwealth of Pennsylvania,eor of aany ny jurWietrecord wh or the prothonotary or deed of any any united States District Court; to appear for Borrower in any and all actions which may be brought' hereunder and enter and confess judgment against the Borrower or any of them in favor of the Bank for such sums as are due or may become due hereunder or under any other Loan Documents, together with costs of suit end actual colleaUon costs including, without limitation, reasonable attorneys' fees equal to s+aes?tR.u,e.o) Pape 3 m9dw'doc 02/off c 7 12.209''` V1 N ?fvEl',N -Dxs IT z 5% of the Obligations then due and owing but in no event less than $5,o00.00, with or without declaration, without prior notice, without stay of execution and with release of all procedural errors and the right,to issue executions forthwith. To the extent permitted by law, Borrower wolves the right of Inquisition on any real estate fevied on, voluntarily condemns the same, authorizes the prothonotary or clerk to enter upon the writ of execution this voluntary condemnation and agrees that such real estate may be sold on a writ of execution; and also waives any relief from any appraisement, stay or exemption law of any state now In force or hereafter enacted- Borrower further waives the right to any notice and hearing prior to the execution, levy. aftachment or other type of enforcement of any judgment obtained hereunder, including, without fimFtation, the right to be notified arid heard Prior to the garnishment, levy, execution upon and attachment of Borrower's frank accounts and other property. If a copy of this Agreement verified by affidavit of any officer of the Bank shall have been filed in such action, it shall not be necessary to file the original thereof as a warrant of attorney, any practice or usage to the contrary notwithstanding. The authority herein granted to confess judgment shag not be exhausted by any single exercise thereof, but shall continue and may be exercised from time to time as often as the Bank shalt find It necessary and desirable and at air times until full payment of all amounts due hereunder and under any other Loan Documents. The Bank may confess one or mote judgments in the same or c1ftrent Iur<sdictions far all or any part of the Obligations arising hereunder or under any other Loan Documents to Which Borrower is a party, without regard to whether judgment has theretofore been cone on more than one occasion for the same Obligations In the event that any judgment confessed against the SorroWer is stricken or opened upon application by or on behalf of Borrower or any obligor for any reason, the Bank is hereby authorised and empowered to again appear for and confess judgment against Borrower for any part or all of the Obfigations owing under this Agreement and/or for any other liabilities, as herein provkied. WAIVER OF JURY TRIAL, TO THE EXTENT PERMITTED BY APPLICABLE LAW, EACH 01 SORROWER BY EXECUTION HEREOF AND BANK BY ACCEPTANCE KNOWINGLY, VOLUNTARILY AND INTENTIONALLY WANES ANY RIGHT EACH MAY HAVE TO A HEREOF, TRIAL BY JURY IN RESPECT OF ANY LITIGATION BASED ON, OR ARISING OUT OF, UNDER OR IN CONNECTION %TrH THIS AGREEMENT, THE LOAN DOCUMENTS OR ANY AGREEMENT CONTEMPLATED TO BE EXECUTED IN CONNECTION WITH THIS AGREEMENT, OR ANY COURSE OF CONDUCT, COURSE OF ,DEALING, STATEMENTS (WHETHER VERBAL OR WRITTEN) OR ACTIONS OF ANY PARTY WITH RESPECT HERETO. THIS PROVISION IS A MATERIAL INDUCEMENT TO BANK TO ACCEPT T1418 AGREEMENT. EACH OF THE PARTIES AGREES THAT THE TERMS HEREOF SHALL SUPERSEDE AND RE=PLACE ANY PRIOR AGREEMENT RELATED TO ARBITRATION OF DISPUTES BETWF-EN THE PARTIES CONTAINED IN ANY LOAN DOCUMENT OR ANY OTHER DOCUMENT OR AGREEMENT HERETOFORE EXECUTED IN CONNECTION W", RELATED TO OR BEING REPLACED, SUPPLEMENTED, EXTENDED OR MODIFIED BY,. THIS AGREEMENT. 1 l Signatures On the next page soma iR? loci Pape 4 mftwdm FJti, DF$ IT s F 2 '' J /124 IN WITNESS WHEREOF, the undersign have signed and sealed this Agreement the day and year first above wrftten. - Dunphy NISSan, Inc. h By ?? alas aCW`c v1R B nk, ation clarion Sy. I?aric id, Vi - e (SEAT } Tr&dit *- 448M&ko CAT -'1 -' M G3M11 FadW ID 43%M (Rev 7&d) Pago 6 lsodiwdw , rx ky bJ+ p r` $6,oo0,000.00 Autahaus Acquisition, Inc_ 4150 Chambers Hill Road Harrisburg. Pennsylvania 17111 Reinhart Federal, ]no, 620'N_ Redding Ephrata, Pennsylvania 17522 (Hereinafter ralerred to as "BarroWe Wachavia Bank, National Association Philadelphia, Pennsylvania 19109 (Herainatter referred to as-SaW ) i L0 2405 Borrower pmmiaes to paY to the order of Sank, in lawful money or the United States of America, at 0 olfroe indicated above or wherever else Bank may specify, the sum of Five Million and INof100 pollars ($5,000,000.00) or such sum as may be advanced and outstanding from time to time, with interest on the unpald principal balance at the rata and on the terns provided in this 13mmissory Note (inCiudinq all fenewale, aldenslons or rnodltfeabotts hereof, this "Note"). AIIVANCES. Funds may be advanced in Ow discretion of Bank from time to tithe to or on behalf or the Borrower under this Note subject to the following Cowlions: (a) Each advance will be subject to the approval of Bank, and Bank My, with or without cause. refuse any request for an advance: (b) Any advance made by Bank far tha purchase of Invernofy shall be used only for ouch purpose, and not for any other purpose; (c) Any advance rtlade by Bank forthe purchase of new or used inventory may be made dirgrtly to the manufacturer or other seller dy any means which Bank may elect (InGCRrdlrQ without limitation, electronic funds transfer debit or automated clearing house debi), and Bank's books and records retailing to auch advances shall, in the absence of manliest error, be cWrohtBNe, provided such books and records are kept and maintained reasonably and In good falth; and, (d) In any case where Bank sands law ver a statement of a transaction or of a series of transactions undertaken pursuant to the terms of this Note, Borrower shall be deemed to hava acknowledged the Indebtednese on the terms set forth thereat, unless Borrower notifies Bank in wrftmg of any correction or objection thereto within five (5) business days alter receipt fhereot Eadt advance by Bank to Barrwar hereunder shalt became a part of the principal amount of the NOW balance outstanding to Borrower caloWated daily after first deducting all principal payments and adding all advances or other principal debits. Borrower hereby ack riwMedges and agrees chat in the event advances made hereunder exceed the above-slated total Note amount, such advances Shall be Uibject to the terms and conditions hereln and in the Loan Documents and Borrower shall be directly liable for such over4lmit amount. LOAN AGREEMENT. 'fhls Note is subject to the provisions of that certain Wholesale Loan Agreernant between Bank and Borteywer of even date herewith, as modified from Vme to tire- WHOLESALE LINE OF r-PMrf. Advrlnoes by Bank to Borrower under this Note shall be in the form of a revolving line of credit (the 'Wholesale tine of Credit'). The WholeS81t tine of Credit shall consist or the separate fine(s) of credit described below, USE OF PROCEEDS. Borrower shall use the proceeds of the Wholesale Line of Credit evidenced by this Note for the CornmerOW purposes of Dorrovver, as follows: ? o '14E??J IFS IT PROMISSORY NOTE WHOLESALE LINE OF CREDIT ,! PCI4253S4XXXX001 CDCNOTEXXX .? c? 0210- Eh,l -)FS IT -- • tip to 54,000,000.00 will be used to finance BonoWers inventory of new motor vehiciss ("Wholesa(e Line- NeW)_ • Up to 51,000,o0D_00 will be used to finanC%? Borrowers inventory of used molar vehicles ('Wholesale Line -Used'). sECUR1TY. Borrower has granted Sank a security interest in the colateral described in the Loan Documents, including, taut not limited to, personal property collateral described in that certain Security Agreement of even date herewith. lKTEREST RATE. The per annum Inta?est rate to be Charged on all advances under the separate line(6) of credit strap be as follows- Wholesale Line - Nevwill be Bank's Prime Rate plus 1.45%; Wholesale Line - Used will be Banks Prime Rate phis 1,45% ("Interest Rate: Ae used herein, 'Banl[s Prime Rate' refers to that interest rate so denominated and set by Flank from time to time as an interest rat&basis for borrowings. Banks Prime Rate is but one of several Interest rate bases used by Bank Bank lends at intermt rates above and below its Prime Rate, and Borrower acknowledges that Banks Prime Rate is not represented or intended to be the lowest or most favarable rate of Interest oflered by Bank The Interest Rate to be applied during each calendar month shall remain the same during each day during such calendar morilh and shag be based on the Banks Prime Rate on the last business day of the immediately preceding calendar month. In all cases, interest shall be calculated on a basis of a 360 day year for the actual number ofdays In the applicable period. BREACH RATE. In addition to all other rights contained in this Note, if Borrower fails to comply with the terms and proviisions of this Nole and other Lean Documents, then all outstmdfn9 Obligations shall hear Interest at the above-51ated interest Rate plus 3M REPAYMENT TERMS- Interest accrued during each calendar month shall be payable on the le day of the immediately foilo+Artlg calendar month. Advances under this Note shall be payable as follows= WhoiesMe Line - New Each advance made under the Wholesale Line - New shall be payable in toll upon demand, or It prior demand is not made, on the" i day of the month Immediately l,01109119 the 18th month alter the data of the advance, m_th principal curtalanents payable on the 15"' day of the month immediately fokowing the Ie and IV" monthe altar the date of the advance. Each principal curtailment shall equal 1DOA of the original amount advanced. Each advance for a motor vehicle under the Whok"a Urfa - New shat not exceed Borrowers Factory or distributor invoke price, including freight, for such motor vehicle. Wholesale Lore - Utod Each adv8r10e made under the Wholesale Line - Used shall bs payable In full upon demand. or if prior demand is not made, on the 151h day of the month immediately following the 6th month after the date of the advance, with a principal curtailment payable on the 156 day of the month Immediately following the V month after the date of the advance. The principal cusfaiifrnent shalt equal 10% of the original arnourtt advanced. Each advance for a motor vehicle under the Wholesale Dine - Used shall not exceed Sorrowers Invoice cast when the motor vehicle Is purchased at an accredited auction for resale or 100% of the average NADA Trade-In prim on all other motor vehicles. In addition, the Wholesale Line - Used Shall be avaidblc only with respect to current and the preceding 5 model years vAth mileage not exceeding 75,000 mlles. ADOMONAL PAYMENTS. in addition to the payments required -above, as a particular vehicle financed hereunder is sold or othaiwise disposed of, Borrower shall pay to Bank the amount 20vanced, less any *MOO lRW 23.01 Pay. 2 K.C.M.c IT r J Y -1 1 1 - prindpai curtailments made, with respect to such vehicle upon the earlier to occur of (1) the receipt by Borrower of the precedds of such sale or other disposition (Whether cash, goods or credits) or (ii) t 10"' calendar day after such sale or other disposition- if Borrower has entered into a wrap agr e defined in 11 U.S-C. § 101, as in acted {ram time to time) In connec iun with the Extension of credit hereunder, no repayment shall affect Borrowers obligation to continue makN pvyrnents under the swaP agreement with Bank or any of its affiliates, which shall remain In full force and effect notwithstanding such repayment sub)ed to the terms of the swap agreement LATE CHARGE. If arty payments (other than payments due under the paragraph entitled 'Additional Payments') are not timely made, Borrower shall pay to Bank a late charge equal to 4% of each payment past due for 15 or more days, or such amount as may be pemtitied by km, whichever is greater. This late charge shall not apply to payments due at aneturity or by acceleration hereof, unless such We payment is in an amount not greater than the highest periodic payment due hereunder. Ac oeptance by Bank of any Into payment without an acoompartying late charge shall not I>a deemed a waiver of Bank's right to collect such fate charge or to collect a late charge for any subsequent late payment received. DEMAND NOTE. Notwithstanding the scheduled repayment terms above or any other terms or provisions of this Note or the Loan Domments, Borrower acknowledges and agrees that this is a demand Note and that all Obligations hereunder shall become immediately duo and payable upon demand by Bank In addition, the Obllgatios hereunder shalt Womatioally become immediately dire and payable if Bonvwer or any guarantor or endorser of this Note commences or has commenced against it a bankruptcy or insolvency proceeding. AUTOMATIC GESIT OF CHECKING ACCOUNT FOR LOAN PAYMENT. Borrower authorizes Bank to debt demand deposit account number ` - or any other account with Wavhovia Bank, National Association (routing number 1 designated in Wrifg by Borrower, beginning 2D05 for any payments due under thts Note. Borrower further certifies that Borrower holds legttirmute ownership of this Account and preauthorizes this periodic debit as pan of its right under said ownership. DEFINITIONS. LA$n Dcmurrmrts. The team "Loan DomunenW, as used in this Note and the other Loan Documents, refers to all documents executed in cormecfion with or related to the iOan evidenced by this Nate and any prior notes which evidence ail or arty portion of the loan evidenced by this Note, and any letters of credit issued pursuant to any loan agreement to which this Note is subject any applications for such letters of credit and any other documents executed in connection therewith or related thereto, and may include, without lin alien, a commWmirt letter't1vt survives doming, a loan agreement, this Note, guaranty agreements. security agnterrienis, security inalrument5, fitimricing statemerrts, mortgage instruments, any renewalS or modifications, whenever arty of the foregoing are executed, but does not include strap agreements (as defined in 11 U.S.G. § 101, as in effect from time to timed Obligations. The %rm "Obligatiorie", as used in this Note and the other Loan Documents, refers to any and all indebtedness and other obligations under this Note, all other obligations under any other Moan Document(s), and all obligations wider any Swap agreements (as defined in 11 U.S,G- § 101, as in effect from time to clime) between Borrower and Bank, or its affiliates, whenever executed. Certain Other Terms. All terms that are Used bit not otherwise defined in any of the Goan Domment5 shall have the definitions provided in the Uniform CanmerdW Code_ ATTORNEYS' FM AND OTHER COLLECTION COSTS. Borrower SNIT pay all of 6anKs reasonable expenses actually incumW to enforce or collect any of the Obligations including, without (imitation, reasonable arbitration, parategaW, attorneys' and experts' Toes anti expenses, whether inourred without the commenoemerd of a suit, In any trial, arbitratiom or admirilstrative proceeding, or in any appellate or bankruptcy proceeding. USURY_ if at any time the effective Interest rate render this Note would, but for this paragraph, exceed the maximum lawful rate, the effective interest rate under this Note shall be the maximum lawful rate, and any 01111100:11w=0) %063 Mtaeuc 0210 - I1 ?,?? 3209 ?116r r?i?!!REp,j jDFS IT - -- amount received isy Bank in excess of such race Shall be applied to principal and then to fees and expenses, or, if no such amounts are owing, reWmed to aorrawer- FINANCIAL AND OTHER INFORMATION. Bonower shall derrverto Bank such intormatlon as Bank may Teasonably request from time to time, including vnthout limtation, tinancisi statements and lnlormatlon pertaining to Sorroymes nnanciW cendWon. Such inforrnation shall be true, complete, and accurate. CONFESSION OF JUDGMENT. THE FOLLOWING PARAGRAPH SETS FORTH A POWER OF AUTHORITY FOR ANY ATTORNEY TO CONFESS JUDGMENT AGAJNST BORROWER. IN SO GRANTING FOLLOWING CONSULTATION WITH (OR DECISION NOT TO AGAINST CONSUL RR SE ARATE COUNSEL FOR BORROWER AND WITH KNOWLEDGE OF THE LEGAL EFFECT HEREOF, HERF-SY KNOWINGLY, INTENTtONALL.Y, VOLUNTARILY, INTELLIGENTLY AND UNCONDITIONALLY WAIVES OR HAVE TO PRIOR NOTICE AN ANY AND ALL RIGHTS THE ER OPPORTUNITY FOR HEARING@UNDER THE RE PECTIVEYCONSTRUTIONS AND LAWS OFOTHE UN11ED STAPES OF AMERICA. COMMONWEALTH OF PENNSYLVANIA, OR ELSEWHERE INCLUDING, WITHOUT LIMITATION, A HEARING PRIOR TO GARNISHMENT AND ATTACHMENT OF THE BORROWERS HANK ACCOUNT AND OTHER ASSETS. BORROWER ACKNOWLEDGES AND UNDERSTANDS JUDGMENT CLAUSE THAT BORROWER IS VOLUNTARILY. NOTE INTELLIGENTLY AND KNOWINGLY GIVING UP ANY AND ALL RIGHTS; INCLUDING CONSTITUTIONAL RIGHTS, THAT BORROWER HAS OR MAY HAVE TO NOTICE AND A HEARING BEFORE JUDGMENT CAN BE ENTLRED AGAINST BORROWER AND BEFORE THE BORROWER'S ASS1:rS, INCLUDING, WITHOUT LIMITATION, ITS BANK ACCOUNTS, MAY BE GARNISHED, LIEWED, EXECUTED UPON AND/OR ATTACHED. BORROWER UNDERSTANDS THAT ANY SUCH GARNISHMENT, LEVY, EXECUTION ANWOR ATTACHMENT SHALL RENDER THE PROPERTY GARNISHED, LEVIED, EXECUTED UPON OR ATTACHED IMMEDIATELY UNAVAtL.AHLE TO BORROWER- IT IS SPECIFICALLY ACIWOWLEDGM BY BORROWER THAT THE BANK HAS REUi=D ON THIS WARRANT OF ATTORNEY AND THE RJOWS WAIVED BY BORROWER HEREIN IN RECEIVING THIS NOTE AND AS AN INDUCEMENT TO GRANT FINANCIAL ACCOMMODATIONS TO THE BORROWER. If a Default Occurs under this Note or any other Loan Deourneft. each Borrower hereby jointly and severally outhortFes and empowers any attomey of any court of record or the prothonotary or clerk of any county In the CommonWeellh of Perinoylvanta, or in any jtWisdiction where permitted by law or the Clerk of any United States District Court, to appear for borrower in any and all actions which may be brought hereunder and enter and confess judgment against the Borrower or any of then in favor or the Bank for such sums as are due or may beoorne due hereunder or under any other Loan Documents, logetw with Coate of suit and actual ooltection oasts including, without limitation, regsorwbte aifomeys, fees equal tri 5°h of the dbfigetions then due and owing but in no event IeW thM $5,0D0.00, with or without declaration, without prior reoltce, without stay of execution and with MIease of 30 procedural errors and the tight to issue executions forthwilh. To the extent permitted Icy law, Borrower Waives trio right of Inquisition on any real estate levied on, voluntarl y condemns the same, authodZes the prothonotary or clerk to triter upon the writ of execrdiOn this voluntary condemnation and agrees that such real esf8ts may be sold Orr a writ or exseutiom and also waives any relief from any appral6eM0K stay or exemption taw of any state now in force nr heieafor enactetl. Elofrwpa Turmes waves the right t0 MW nolleo and hew ft prW to the sxe%Mcn, Icvy, atlaeirma I: or other type of eMorcement cl any judgment ohlained ttereurrder, lndMding, without "fffedtloh, the right to be rrotilted crud heard prior to the garnishment, terry, execution upon and attachment of Aorroweft b9nh aocour& and other propart r. If a copy of this Note verified by affidavit of any oWmr of the Bank shall have been filed In such action, It shd not be rimessary to file the original thereof as a warrant of aKomey, any practice or usage to the conhary notwithstanding The authority herein gmte!d to confess judgment shall not be exnausted by any slrigie exercise thereat, but shall oontinue and may be wmrdsed from time. to Qme as often as the Bank shall find It necessary and desirable and at all times until full payment at ;0 amounts due hereunder and under any other Loan Documents. The Bank may confess one or more judgments in the same or different jurisdictions for all or any Part of the OlrAgatlons arising hereunder or under any other loan Documents to which Borrower is a party, without regard to whether judgment has theretofore been confessed on more 08=[A-n93 Page 4 ".b1W Oil/IDf ILf''+_3209_ i, ''I 'l??]=I?'j E??J7IFS IT than one occasion for IV same Otallgation3. In the event that any judgment confessed against the Borrower is stricken or Opened upon apocatlon by or on behalf of Borrower or cany onieslor for aannt y raga n. the bank is hereby authorized and empowerad to again appear for and Borrower for any part or all of the Obligations owing under this Note and/or for any other liablliffws, as herein provided- WAIVERS AND AMENDMENTS. No waivers, amendments or modMcations of this Note and other Loan the any Documents shall be valid unless in writing and elgned by a ootficar of finder Netherte and otheotcan delay on the part of Bank In exercising ary right. power. Y this Documents shall operate as a waiver Ihereo> nor shah a single or partial exercise thereof preclude any other or further exercise thereof or the exercise of any other rignt power or remedy. Except to the extent otherwise provided by the Loan Documents or prohibited by law, each Borrower and each other person liable under this Nate waives presentment, protest, notice of dishonor, demand for payment', noboa of intention to demand, notion of demand notice of sale and all other notices of any kind. Further, each agrees that Bank may (i) extend, modly or tore rthiei this No compromises a onovat r 7tion of the Wholesale Line of Credit evidenced by ttiis Note, and/or (Ii) g with rm;Peot to any collateral securing this Note, or with respect to any Borrower or other person liable under this Note or any other Loans ocuments, all without notice to or consent of each Bro such person, and without affactbn the liabdlty of each Borrower and other such person; v;deck Dark may not extend, modify or renew this Note or make a navation of the loan evidenced by this Note without the consent of the Bonower, or if there is more than one Borrower, without the consent of ??a`rt?one Borrower, and further provided, If there Is more than one Boaawer, Bank may o rr,odlllcation of this Note which increases thm burdens of a Borrower without the consent or that Bo"mer. NIMCF-LL4NEOUS PROVISONS. AsaWnwarlt, This Note and the otter Loan Doou ri f erinuie t the benefit of and be binding upon the parties and theft respective hens, legal successors and assigns- Bank's interests in and rights under this Note.and the other Loan Documents are freely assignable, in whole or in part, by Bank to addition, nothing In this Note or any of the other Loan Documents shall prohibit Bank from pledOV or asslgnlrQ this We or any of the other Loan Documents or any interest therein to any Federal Reserve Bank Borrower shall not assign its rights and Interest hereunder without the prior written consent of Bank, and any attempt by Borrower to assign without Banns prior written consent le null and voki. Any asQgnment shall riot release Borrower from the Obligations. Applicable LM, Ccinflect Beblreeu Documents, This Note and, unless otherms untie the in an other Loan Document, the other Loan Documents shall be gowmed by and construed laws ofthe slate named In Banks address on the first pass hereof without regard to that state's conflict of laws principles- It the terms of this Note should conflict with the tsfine of any loan agreement or any ter oontrol Note. " or this Anammts commilmwit letter that aw, aorro0we franks Bank a security interest in all of Borrower's accounts with. Except as prohibited by Bank and any of its aflliates- Sale Prooeeds. Bank, in its sole discretion, may regWre that all proceeds aelsirtq itom the sale of collateral be deposlted I>y or on behalf of Borrower in a sepatMe and segregated account at Bank. Swap Agreements. AN swap agreements (as defined in 11 U_S.C. § 10.1, as in effect from time to time), if any, between Borrower and Bank or its affiliates are independent agreements gvvemed by the written provisions of Bald swap agreements, which will remain in full force and erect, unaffected by any repayment, prepayment. acceleration, reduction, increase or change in the terms of this Nate, except as otherwise expressly prrlvlded in said wMen? swap agreements, and any payoff statement from eank relating to this Note shall not apply to said swap agreements except as otherwise expressly provided In such payoff statement JurisdMon. Borrower irrevocably agrees to non-exclusive personal jurisdidlon in the state named in Bank's address on the first page hereof. SeVeiability. If any provision of this Note or of the other Loan Documents shall be prohibited or Invalid under applicable law, such provision shall be ineffective but only to the extent of such prohibition or irrvalidily, without invalidating the remainder or such provision or the remaining provlslons of this Note, or other such document. Notices. Any notices to Borrower shah be sufficiently given. If in wrting and mailed or delivered to the Borrowees address shonm above or such other address as provided hereunder, and to Bank, if in writing and mailed Or delivered to Waohovia Bank, National Association, Malt Code VA7629, P. 0. Box 13327, Roanoke, VA 24040 or Wwhovia Bank National Association, Mail Code VA762a, 10 Page 5 NdGd.- 53EOED(Tdn23Y) u2; it-- L,.:. rt. n; rlr5132o t 1 jL14 Eh? D)±S IT - j' r, L''130 South Jefferson Street, Roanoke, VA 24011 or such other address as Hank may specify in writing from time to time. Notices to bank must include the mail code- In the event that Borrower Changes Borrower's address at any time prior to the date the ObiipWra are Paid In fulk Borrower agrees to promptly gh'e written notice of acid change of address by registered or certified mail, return recelpt requested, all charges [repaid. Termination. Either party by notice to the other may terminate the Wholesale Line(s) of Credit referred to herein and the consWetaiion of advances hereunder at airy lime. No Wmin-ation hereunder shall r0leve Borrower from any obligation to Bank then outstanding. No termination shall affect BorroweYs obligation to continue msWg payments under any swap agreement (as defined in 11 U.S-C. § 101, 0 In effect from time to time), which shall remain in full force and effect notwithstanding such termination, subject to the terms of the swap agreement. The terms and proVisionS of this Note shall continue in full force and effect, natwithstandam9 the payment of one or more of the Obligatklns of Borrower to Bank or the termination of the Wholesale Line(s) of Credit referred to herein, until all of The Obligations of Borrower to Bank (art*, With respect to Swap agreement obligations, its affiliates) have been paid in full and Bank has terminated this Note in writing. In no event shall Borrower or Bank be liable to the other for indirect, special, or consNuentlal damagm which may arise out of or are in any way connected with the termination of this Note. Plural; Captions, Al references in the Loan Documents to Bbn'ower, guarantor, person, document or other nouns of reference mean both the singular and plural form, as the case may be, and the term "poison" shall mean any Individual, person or entity. The captions contained in the Loan Documents are inserted for convenience only and shall not affect the meaning or Interpretation of the Loan Documents. Advanoea. Bank may, In its sole discretion, make other advances which shall be deemed to be advWces under this Note, even though the stated principal amount of this Note may rte exceeded as g result thereof. Posting of Payatents. All payments, received during normal banking hours after ZOO pm. local time at the office of Bank first shown above shall be deemed received at the opening or the next franking day. joint and Scverel obligatiow. If there is more than one Borrower, each is jointly and severally obfigatod. Fees and Taxim. gorrower shall promptly pay all documentary, intangible recordation and/or similar taxes on this transactlon whether assessed at closing or artsim irom time to time- I-WrATION ON LIABILITY: WAIVER OF PUNITIVE DAMAGES. EACH OF THE PARTIES HERETO, INCLUDING HANK BY ACCEPTANCE HEREOF, AGREES THAT W ANY JUDICIAL, MEDIATION OR ARBITRATION PROCEEDING 09 ANY CLAIM OR CONTROVf=RSY BETWEEN OR AMONG THEM THAT MAY ARISE OUT OF OR BE IN ANY WAY CONNECTED WITH THIS AGREEMENT, THE LOAN DOCUMENTS OR ANY OTHER AGREEMENT OR DOCUMENT BETWEEN OR AMONG THEM OR THE OBLIGATIONS EVIDENCED HEREBY OR RELATED HERETO, IN NO EVENT SHALL ANY PARTY HAVE A REMEDY OF, OR BE LIABLE TO THE OTHER FOR, (1) INDIRECT, SPECIAL OR CONBEOUENTIAL DAMAGES OR (2) PUNITIVE OR EXEMPLARY DAMAGES. EACH OF THE PARTIES HER1 6Y EXPRESSLY WAIVES ANY RIGHT OR CLAIM TO PUNITIVE OR EXEMPLARY DAMAGES THEY MAY HAVE OR WHICH MAY ARISE IN THE FUTURE W CONNECTION WITH ANY SUCH PROCEEDING, CLAIM OR CONTROVERSY, WHETHER THE SAME 19 RESOLVED BY ARBITRATION, MEDIATION, JUDICIALLY OR OTHERWISE. Patriot Act Notice. To help fight the fund kv of tefrorlanr and money Warrndedrvg aeuvtlles, Federal law requires all financial inetihAons to obtain, verify, and record Inlorrnation that Identifies each person who opens an somunt For purposes of this Section, account shall be understood to Include loan accounts. FINAL AGREEMENT. This Note and the other Loan Documents represent the final agreement between the parties and may not ba contradicted by evidence of prior, contemporaneous or subsequent oral agreements of the p®rties. There are no unwrItten oral agreements between the parties. WAIVER OF JURY TRIAL TO THE EXTENT PERMITTED BY APPUCAi3LE LAW, EACH OF BORROWER BY EXECUTION HEREOF AND BANK 8Y ACCEPTANCE HEREOF, KNOWINGLY. VOLUNTARILY AND INTIONALLY WArVT-= ANY EACH MAY HAVE A RIAL BY JURY N RESPECT OF ANY LITIGATION BASED ONS OR ARRIGHT NG OUT OF UNDERTOR Ir4 CONNECTION WITH THIS NOTE, THE LOAN DOCUMENTS OR ANY AGREEMENT CONTEMPLATED TO BE EXECUTED IN CONNECTION WITH THIS NOTE, OR ANY COURSE OF CONDUCT, COURSE OF DEALING, STATEMENTS (WHETHER VERBAL OR WRITTEN) OR ACTIONS OF ANY PARTY WITH RESPECT HFRETO. THIS PROVISION IS A MATERIAL INDUCEMENT TO BANK TO ACCEPT THIS NOTE. EACH OF THE PARTIES AGREES THAT THE TERMS HEREOF SHALL. SUPERSEDE AND REPLACE ANY PRIOR AGREEMENT RELATED TO ARBITRATION OF DISPUTES BETWEEN THE PARTIES CONTAINED IN ANY LOAN DOCUMENT OR ANY OTHER DOCUMENT OR AGREEMENT F1gn 6 w.W00 saeoea ptnv ^ao1 1-320 0 'E N'- VFS IT I? iZ30 HERETOFORE EXECUTED iN CONNECTION OATH, RELATED TO OR BEING REPLACED, SUPPLEMENTED, EXTENDED OR MODIFIED SY, THIS NOTE- IN WITNESS WHEREOF, Borrower, on the day and yoar llrat above written, has caused this Nate to be executed under seat. Autohaus Acquisition, Inc, >3y (SEW-) einhart, President Reinhart Federal, Inc. By: 1L-U-- (SEW..) Nicholas Reinhart, President Trscddro tt 290756w CAT - vsai f 5=33 Fkaky 10 425364 $4 owmvi PaBo7 wtaWc r,?,O-,f E, h,j - --_ P ;xszD nFS IT ]Dlsizso PROMISSORY NOTE WFiOLF?ALE I.,INE OF CREDIT 56,.000,ccaco 2DO5 Reinhart Acquafion, Inc. 620 North Reading Road Ephrata, Pennsylvania 17522 (Hereinafter referred to as "Oorrower l Wachovia Bank National Association Philadelphia, Pennsylvania 19109 (Hereinafter referred to as'BanK') Borrower promises to pay to the order Of Bank, in lawful money of the United States of America, at Its oft& Inditatted above or vrhWeVer else Hank may specify, the sum of Six Million end NOW Dollars ($6,000,000.00) or such sum as may be advanced and outstanding kam time to the, with interest on the unpaid principal balance at the rate and on the terms provided in this Promissory Note (including all renewals, extensions or modifications hereof, this -Note" j_ ADVANCES. Funds may be advanced in the disrretlon of Bank from time to time to or on behall of the Borrower under this Note subiact to the following oerrditions: (a) Each advance will be. subect to the approval of Bank, and Bank may, with or Without cause. refuse any request for an advance; (b) Any advance made by Bang Tor the purchase of Inventory shall be read only for such purpose, and not for any other purpose; (o) Any advance made by Bank for the purchase of new or used Inventory may be made directly to the manufacturer or other scaler by any means which Bank may elect (including, without limitation, eteclrork funds transfer debit or automated clearing house debit), and Bank's books and records relating to such advances shall. In the absence of manifest error, be conclusive, provided such books and records are kept and maintained reasonably aind in good faith; and, (d) In any case where Bank sends Borrower a statement of a transaction or of a series of bansadions undertaken pursuant to the terms or this Note, 2orrower shall be deemed to have acknowledged file indebtedness on the terms set form therein, unless Borrower notifies Bank in t Mng of any oDlMedon or Objection thereto within five (5) business days after receipt thereof. Each advance by Bank to Borrower hereunder shall become a part of the principal amount of the Note balance ouWandlrtq to torrower calculated dally after first deducting all principal payments and adding all advances or other principal debits. Borrower hereby acknowledges and agrees that in the event advances made herounder exceed the above-stated total Note amount, such advances shall be subject to the terms and conditions herein and in the Loan Documents and Borrower shall he directly liable for such over4mit amount. LOAN AGREEMENT. This Note is subject to the provisions or that certain Wholesale Loan Agreement between Bank and Borrower of even date he vveb% as modified from time to time. WHOLESALE LINE OF CREDIT. A 1vances by Bank to Borrower under this Note shall be in the firm of a revotving tide of credit (the'Wholssale Line of Credit" ). The Wholesale Line or credit shall consist of the separate line(s) of ctedil described below. US12 OF PROCEEDS. Borrower shall use the proceeds Of the Wholesale Line of Credit evidenced by this NOto for the commercial purposes of eorrower, as follows: • Up to S2,500,000.00 will be used to finance Borrowers Inventory of new motor vehicles ('Wholesale Line - New). • Up to S3,500,ODO.00 win be used to finance Borrowere InVOMOry of used motor vehicles ("Wholesale Line - Used"). «bo2G(RV2aCU PC1425565XXXX001 CDCNOTEXXX ,,MATE 02/1 -_. r, 5! r'r'313Z0!, ,"yEp,j DF5 TT i' -- F ,1014/130 SECURITY. Borrower has granted Bank a security Interest in the collateral described in the loan Documents, h)cluding, but not limlted to, personal property collateral described in that certain Security Agreement of even dale herewith. INTEREST RATE. The per annum fnterftt rate to be charged on all advances under the separate line(a) of credit shall be as follows: Wholesale Line - NW V/111 be Banks Prlrng Rate plus 1.4S9k Wholesale Line - Used will be Bank's Prime Rate plus 1.450A ("Interest Rate"). As used herein. 'Banks Prime Rate' refers to that interest mite so denominated and set by Bank from time to time as an interest rate hae4s for bomnwiiVs. Bank's Prime Rate is but one of Several interest rate based used by Bank Bank lends at Interest rates above and below ifs Prime Rate, and Borrower aekr'iowledgea that Bank's Prime Rats i9 not represented or Intended to be the lowest or most favorable rate of interest offered by Bank The Interest Rate to be applied during each calendar month shall remain the Sarre during each day during such calendar month and shall be based on the Bank's Prime Rate on the fast business day of the immediately precedbV calendar month. In all cases, Interest shall be calculated on a basis of a 960 day year for the actual number of days In the applicable period. BREACH RATE In addition to all other rights contained In We Note. if Borrower fails to comply with the terrMe and Provisions of this Note and other Loan Docuniante, then all ourstancling Obligations shall bear interest at the above-stated Interest Rate plus 396. REPAYMENT TERMS. Interest accrued during each caiendar month shall be payable on the 15m day of the Immediately following calendar month. Advances under this Mote shall be payaoie as follows: Wholesale Line - New Each advance Made Under the demand is not made, on the 95 dray of the ryljperdh I m ety fol?lov inng the f 18th month fter the or if prior "a of - Now shall the advance , With Prinr-4)W Gvrtaifinenb& payable on f1>e 15s' day of the month immediately following the 12"' and 15"' months after the date of the advance. Each principal ourlallFnent shelf equal 10% of the ollgrnaf amount advanced Each advance for a motor vehicle under the Wholesale Line -New sholl not exceed Borrower% factory or distributor invoice price, including freight, for such motor vahlde, Whofesaia Line - UsW Each advance made under the Wholesale Line - Used Shall be payable in lug upon demand, or if prior demand is not rnade, on ilia 15 day of the month immediately following the 6th month rafter the date of the advance, %NIM a principal eartailmetlt pWgble on the 15° day of the month immediately following the e month after the date of the advance. The principal curtailment shall equal 10% of the original amount advanced- Each advance for a motor vehicle under the Whole551e Line - Used shall not exceed Borrowers Invoice cost when the Motor vehicle is purchased at an aocrWted auction for regale or 10D% of the average NADA Tirade-in Price On all other motor vehicles. In addition, the Wholesale Line - Used shall be avaftade, only With respect to current and the preceding 6 model years whh mileage not exceeding 75,000 hales, ADDITIONAL PAYMENTS- In addition to the payments required above, as a particular vehicle financed hereuhder Ia sold or otherwise disposed of, B0rrovre1` shall pay to Bank the amount advanced, lees any principal ctirtailrnents n dlde, with respect to such vehicle upon the earlier to oocur of (I) ft receipt b Borrower of the proccpde of such sale ar other disposition (whether cash, goods or credits) or (II) the 19 calendar day after such aale or other disposition. If narrower has entered into a swap agreement (as defined In 11 U.S.C_ § 101, W in effect from Ume to time) In connedion with the extension of credit hereunder, no repayment shall affect Borrowers obligation to continue making payments under the swap namoM_ 6) Pape 2 Me44oc 02/? n Z S 1320, DFS IT 015/130 agreement with Bank or any of its amgares, which shall remain In fun torte and effect roWthstandlny such repayment, subJect to the tORhs of the SWip agreemenL LATE CHARGE. If any payments (other than payments due under the paragraph entitled `Additional Payments'are not timely made, Son-WW shall pay to Bank a late cha?go equal to 401o of each payment past due far 15 or more days, or such amount as may be permitted by tan, whichever Is greater. This late charge ehall not apply to payments due at maturity or by aoeelerZion hereof, unless such late payment le in an amount not greater than the highest perlOdic payment due hereunder, Acceptance by Bank of any late payment wtgt0ut an aocompanying late charge shall not be deemed a waiver of Barks right to collect such late charge or to colect a late charge for any subsequent late payment received. DEMAND NOTE Notwithstanding the scheduled repayment terms above or any other terms or provisions of this Note or the Loan Doeumentsl Borrower actmowledges and agrees that (his Is a demand Note and that all Obligations hereunder shat become immediately due and payable upon demand by Bank. In addition, the Obligations. hereunder strap agtoMatically become immediately due and payable it Borrower or tiny guarantor or endorser of this NOtO commences or has commenced against It a bankruptcy or tnsolvencyy proceeding. AUTOMATIC DEBIT OF CHECKING ACCOUNT FOR LOAN PAYMENT. Borrower authorizes Basic to debit demand dep*1 account number L700001tri 16411$&or any other account with Wachovia Bank, NaJt onal Asso106 lOn (rouling number x91 abo - o 1 designated T??!? for any payments due under thin Note. Borrower g by t3hat lac r. beginning Iegitlrr9te hip Of this account and preauthorizes teas Periodic debit a tt ace?fi? that Borrower holds ownership, as part of its right under said DEFINITIONS. Loan Documents. The terns "Loan ooctanents", as used in this Note and the other Loan Documents, refers to all dacum®nts ekecuted in connection with or related to the town evidenced by this Note and any prior notes which evidence all or any portion of the loan evlderAMd by this Note, and any letters of credit Issued pursuant to any lost 2greemenlt to which this Note is subject, any applications for such letters of credit and any other documenls executed In connection therewith or related thereto, and may Include, without Wilation, a commitment letter that survives closing, a loan agreement, this We, guaranty agn"ments, security agreerneift security instruments, financing statements, mortgage instruments, any renewals or modifications whenever any of the foregoing ate executed, but does not include swap agreements (as defined in 11 U.S.C. § 141, as in effect from time to time). Obligations. The ?t?n b l o o used in thLs Note and the other loan Documents refers to any and All indebt e n ss anand t all other b? under under this Note, alt other obligations under any other Loan from time to drne} between Borravver any Bank or Its a?tiates.whenever execuiled ?Corwi? Ot er Terris, AD terms that are used but not otherwhe defined In any of the Loan Documents shall have the definitions provided in the Uniform CommeroW Code. ATTORNEYS' FEES AND OTHER COLLECTION COSTS. E)Qnwmr shall pay all of Banks reasonaWe expenses actually incurred to enforce or collect any of the Obligations Includling, without limitation, reasonable art ration, paralepals'. attorneys' and expert' fees and expenses, whether incurred without the commencement of a snit in any trial, arbitratlor% or admINstrative, proceeding, or in any appellate or baniwptcy prmeadtng. USURY. It at any time the effective interest ram under this Note would, but for this paragraph, exceed the maximum lawful Tale, the ef(ecdve hrterest rate under this Note shall be the maximum Lawful rate, and any amount received by Banx in exoew of such rate shall be applied to principal and then to fees and expenses, or, if no such amounts are owing, rehurxW to Borrower s9teo Dan 2+.01 Pg. 3 Note ma -?, Z 'd`fii320h,i _?i'EN AJFS IT FINANCIAL AND OTHER INFORMATION, Borrower$hail deliver to sank such Informati rbalonably request from time to time, Ihcluding without limitation, hnanclal st PGtamin8 to Borrower's financial condrtlon. Such inform an as Bank may CONFESSION Off JUDGMENT. anon Shad be tr ate d, An and Information ue comptet and accurate Av?OR? FOR AM THE FOLLOWING PARAGRAPH SETS FORTH A POWER OF ATTORNEY -ro CON SS GRANTING THIS WARRANT OFF ATTORNEY TO JDUDG DORROWER. FOLLOWING ENT AGAINST BORROWER IN CONSULTATION CONFESS COUNSEL FOR BORROWER AND WITH KNOWLEDGE ER, THE (OREDSS EctsI NpAGO CONSULT) SEPARATE KNOWINGLY, IMENOWER A voL?TH Iljy-fF THE yLEGAL ANY AND ALIT RIGHTS THE BpRR EFFECT HONALL, lIFRt:ES ELLIGE ' TO OPPORTUNITY FOR HEARING UNDER R HAS OR MAY HAS UNCONDITIONALLY WAIVES IN UNITED UNITE(? STATES OF THE RESPECTIVE CONST17UTJ NS ANDQLAWS OFpTHE G, TES OF AM?ICA, COMMONWEALTH OF P IN THE NC;, WI IJOUT UMTrATION, A IfWirgl3 PRIOR TO GARNISHMENT OR F-SEWHERE 01`7 BORRO WERS AND UNDERSTANDS T RANK ACCOUM AND OTHER ASS GARNISHMENT AND ATTACHMENT JUDGMENT CLAUSE THAT BORE ?EKING INTO THIS NO E COMRROWER ACKNOWLEDCES O?'1fER is VOLU{It't'gRIh.Y, INTELGLY GIVING UP ANY AND ALL RIGHTS, INCLUp1NQ CONSTITU'1lpELLt(3RIGHENHnTS,y AND IW0111?IN KNOWIN OF S OR MAY T BORROWER HAVE TO NOTICE AND A WA JUDGMENT AGAINST BORROWER AND BEFORE THE RlNO BEFORE LIMITATION, ITS BANJO ACCOtrNTS, M BORROWEMS GAN BE ENTERED AITACHEb. BORROWER UftD MAY BE CARN)SHED, ASSN INCLUDING, WITHOUT AND/OR ATTACH114ENT ERBTANDS THAT IGARJFD, EXET. LEVY UPON CUIVrq AND/OR UPON SHALL REAIDER A!\Il' SUCH ARN>SHMEN , FJCEl1T10N ATTACHED IMMEDIAr?y UNA Av E(( PROPERTY ACKNOWLEpGEO By BORROWER ?NISIIED, LEVIED, EXL'CUTEp TO BORROWER. IT ATTORNEY AND THE RIGHTS SAT THE RANK HAS RELIED ON TH g CIFICALLY A5 AN INDUCEMENT" TO G WANED ISY BORROWER HERflN ARRANT OF RANT FINANCIAL ACCOMMODATION$ 70 THE RCCEJVNqG THIS NOTE AND If a Default OC Vrs under BORROWER severally in the C mmowe??e ? 20omey of any n oburtt ofe county in the _t h of P?nsylvanla, or in anyNrfsdl On Where edvh the Borrower hereby jointly and any Untied Stays Olstria strlct Court , to prothonotary or clerk of an Y nereunder and enter and confess u aPpear for Borrower fn ag permrlted by law or the Berk or allch s urns as are due 1 dgment AAFlnct the 60Ir Y and atI actions which may tie brought or may 0 own titre hereund er or ultdeWr Ynr Oany of them in favor of the Qank for n 5° iha p am gandCrons actual than collec duetioand costs lndudinr?, wlthOUt Ihm DOOUtnents, to Cher pyvjn re Loan W6% "NK notice. 9 but in no event less uta 5, pp 00, with or without decYafq Issue execullons fOrthyMh To the execution and with release of all real estate levied extent on. vOlun PenTdtted by l9w, BOrr Procedural enrols and the trt 1 , the writ of ? ?' '?emna the ?, autlloriz r valves the right of aril the on any, of "eartio cd als this vO anry conde=won and agrees that s. Prothonotary or clerk tp enter upon ?, and also yyp any relief fhom an e force or hereafter evaded, gOrroyv? Y PPramement; stay or rest! estate may be sold on a writ Including, r l?sr n? the right to any nom ens twari of Onj Y ate now in lncluding yyl(hop hln7Rrlt or Othar g Prior to II1e exeeu$on uAOn and natatlob, tht r ? ight fn be noUfied of Any ng f7ldgrrlerrt obtained hereunder, Note vefffret! hnl'nt Of 8`~- bank T aceourfa endprlor ? by arndavR Of any officer Of the n royE+nflshment, levy, ssaty to h7e the original thereof as a Bank shah have been filed utio(uty6o If a copy of this n Fthbtanding, The a(dhOnty. heroin warrant of attorney, any Practice or rl. h snail not he exerdae thereof, but Sha deslllydbfs conti and nue and may be exisra dl"9m s wee to the contrary and find It necegs from time tp [not be eXha ? by any near any Other Loch at all times until hill pay-erg of ail amou as ? @often as the ga single °a'°' The B nk shall iurlsdlctions far all ank may any Part of ay confess One or more er-under and under whl than orroweriIs a P h, same Without tvip ege Q? whether emunder or Under other L... same Or Docum ?fferent Obrr than as theretofore tO Borrower is stricken or per )W dons. In the event that an been COnUmed on more the Bank Is hereb Y a ?° pPllcaibn by or on batlalf Of g any ludFinant Con?ssed against the uthorYZed and empowered a aln a 0rrOwer or any obligor for *n y pPear for and confess judgment agabignt Page 4 rumen; L;. L?'?a`s13zo,;' 1?,',?(it!'rEh? DFS IT `017!13 0 herein p( vid y part or all of the obligations owing under this Not. anyor for any other liabilities, as WAIVERS AND AMENDMENTS. No H`?iyers oournent s s h all he valid unless In writing 31md si p amendments or tYlodattony of this Note and other Loan delay on the part of gook km exerdsin goad by an offScer or Bank. Neither the failure not any Docxlmanls shall operate as a g any r?gnt, power, or remedy under this Note and other Loan other or further waiver thereof, no shaft a single or partial exercise thereof preclude any exerase thereof or the exerr?5e or. ny other right power or remedy, Drcept to the extent omeryyis' pr 6d by the Loan u nls or prohibite by i3w, each Bo each other person liable undo this Note poc rr Rower and payment; oti ce o r Intention to demand, notice off demand, notice oti? no Wa and d ives Presentment Prot n all other not Further, each of sale ce5 of any Idndr agrees that Bank may (q extend, modify or renew this Note or male a novation of the withWhorespelegalellLitne ofanyCloditcollatnvideralsenrecuri?dnbg y t this his NNo ote Perelea or and/or (ill slant o anyes, rowerornises or hrdul w genCyc o arany other Loan Documents, 911 not ipce t or cotta ntof eah g such person and without portion liable under may not this Note extend, affeo6ng the liability of each Borrower and other such p orrorovi and Bank modify or renew this Note or make a novauon of the loan evidenced o #ft Np e; ? the consent of the Borrower, or if there is more than one Borrower, by wt one Borrower; and further provided, if there Is more than one BorroweroBank Bank may t f enter alnloa modlgoation of this Mote dory increases the burdehs of a Borrower without the Consent of that Borrower. MISCELLANEOUS PROVialONS,. AssignmariL This Note and the other Loan Documents shall inure to the" su"benefit Of and be binding upon the parties and their respective heirs, legal fepresentativgs, are aa assigns' Bank's interests in and rights udder this Note and the other Loan Documents Y Unable, in whole or in part, by Bank In addltion, nothing in this Note or any of the other p?? Documents shall prohibit Bank from pledging or assigning this Note or any of the other Loan any interest therein to any Federal ReseNe Bank Borrower shall not assign its rights and interest hereunder without the prior wriNen consent of Bank, and arry attempt by Borrower to assign without Bank's prior written consent is null and void Any assignMent shall not release Borrower from the Obligations. Applicable Levi, Conflict BetwMm Docufents. This Nola and, unless otherwise Provided in any other Loan Document, the other Loan Document shall be governed by and construed under the laws orthe state named In Banks addMe on the first page hereof mwlthout regard to that states conflict or laws prtnaples. If the terms of this Note should conflict with the terms of any ban agreement or any eommiimeru letter that sunrives closing, the lerntg of thts Note sNII Control, f3orraliver•9 Accounts, Except as Prohibited by law, Borrower grants Bank a security interest in all of Borrower's accounts with Bank and any of its afrikites_ Sale Proceeds Bank, in its Sole discretion, may require 1hal all prnoeads arising rrom the sale of C 11aterdl be deP00it*d by or on behalf of Borrower In a separate and segregated account at Bank Swap Agreements. All swap agreements (as defined in 11 U.S.C. § 101, as in effect from fire to time), if any, between Brower and Bank or Its afii6ates are independent agreements governed by the written provisions of said swap agreements, which waif remain in full force and effaat, unaffected by any rapa Prnp?lhlent, acceleration, reduction, increase or change In the terms of this Note, except as Otherwise escprasgly Provided in said written swap agreements,?tCept and any payoff stalerrMrrt from Bank retailing to this Note shall not apply to said guise agreements as omerwiae aXI3res91Y Provided in such Payoff statement Judadkoon. Borrower 1r?woeably agrees to non-exclusive Personal 1tlrfsdiCtlon in the state named In Banks address on the first page hereof. Severabifity, if any provision of this Note or of the other Loan Documents shall to roh' such provision shall be ineifecWe but only to the p rched or invalid under applicable law, irrvalidating the remainder of such exam g Such ons o ifson or invalidity, r such t documer>t. NcdlGee. Any notices to gQ on or the remamin Provisions ns of this Note or otter spry delivered to tfte Borrowers mwmr shall be suf6cientty given, if in Writing arrd mailed or dank, if in writing and mailed a or doWered lb Wacitiovia ddress shown above or suoh other address as provided hereunder, and to B ank Box 13327, Roanoke, VA 24040 or WaChovia eank ? coal assAssociation, lyair ode V7nga A7628., F'• Code VA76528 South Jefferson Street, Roanoke, VA 24011 or such other address Sank ma 1rsch Coda 10 time to dd ass ranted Notices any priorank the d to incWe the gby mall code. In the event that Borrower ie venting'(tom a paid in anger Borrowers AA Borrower agrees to promptly give &IWW p;.,, zi,o) pa9• 5 iLbaoe a??F=E. ?. );? r,Fi,f813:0 :;i Ea;EPI- -- DFS IT _718/X30 Written notice of said Change or aWress by realsterad or certified clfarges prepaid. Terminajkmn E- tttai return of Credit referred to herein and the co i? by notice ',D the other may termlfrate tbe?Who?uested a, reuntler shall reBlDVe iBorrower n and from any orblinn or addvBank hereunder at an ?rr Linens affect Scrrowel's ob)igavDn to Continue mall then syMp ndin any ttr,_ No termination U 5 C § 70y, 8s In effect Trorrl time to P?IYments under any yya 9 No termination shall such termination, subject to the tmrlns fie)' which shall remain in ull to 00 and effect?notdyyeitlt tn' 11 tlrng continua in full Force and effect of the swap agreement. The terms and Provisions of this Note shat! Sorrowerto tank or the tenninetlon ? hon9 the payment of ens or more or the Obrigatlons of Obligations of BOrrOwer to Bank a kftfe Line(s) of Credit been paid in full and Bank has t (?. Myth respect to referred to herein, until all of fho liable to the other for indr Special. or terminated p agregrtent vblig fgailorrs, its affigates) have this Note in wfifirig. In no event shall Borrower or Bank be connected With the term °0e4uentlal dathages whioh ,,,ay arise out of OF a orr matron of th is Nota, Plural; GAtforefens, Afi refCfen rp in any wv jy guarantor, person . document or ON,, nouns of rd10e mean both the Loan Docu ,am as the case ,nay be, and the term „ hwnts to oft captions gontairred in the won" shall mean an Ip 'the singular entIty- and pThe meani Loan Documents are Ins convenience d tVidual, person or t QjTect nq or interpretation of the Loan Documents. Advance& Baryr only Ana shall not on. r the other advances which shall be deemed to to advances under this Note, even tho amount of this Note may aY. In its sole discretion, Frisks during normal b Note y be ekCesded as a result thereof, POS$ng of P the stated principal 8 hours alter the p.m. local time at the ot3rce of Bank first shiowrl above shall v b nts d r reoabed at the opening of the next bar*irV daY- Joint and Sovetai ObllOWn If there mo e re than one Borrower, each is 1oRtiy and severalty oblint . Fees and Tauoes_ prorMAY pay all documentary. intangible recordation and/or Simper takes on asked at closing or arising nom time to time. LIMITATION ON L1ABIL Borrower shat! DAMAGES. EACH ? UansaCtlon whether OF THE PARTIES HERETO. INCLUDING BANK BY 0.'CC?ANCE HEREOPi AGREES THAT IN ANY JUDICIAL, MEDIATION OR ARBITRATION PROCEEDING OR ANY CLAIM OR CONTROVERSY ®ETWEEN OR AMONG THEM THAT MAY AR1rF CONNECTED WITH TH15 AGREEMENT, THE LOAN DOCUMENTS OR ANY OTHER AGRA ENT - OUT OF OR IN WAY OR DOCUMENT BETWEEN OR AMONG THEM OR THE ORLIGATIONS EVIDENCED 1 fEREDY OR RELATED HERETO, IN NO EVENT SMALL ANY PARTY HAVE A REMEDY OF, OR ID LIABLE TO THE OTHER FOIq, (t) INOIRECT SPECIAL OR CONSEOUENTLAL AAMAt',,ES OR (2) PUNITIVE OR EXEMPLARY DAMAGEa- EACH OF THE PARTIM HEREBY EXPRESSLY WAIVES ANY RIGHT OR CLAIM TO PUNITIVE OR aEMPLARY DAMAGES THEY MAY HAVE OR WHrCH AAAY ARISE IN THE FUTURE IN CONNECTION WITH ANY SUCH PROCEEDING, CLAIM OR CONTROVERSY THE SgIyE IS RESOLVED BY ARBITRATION, MEDIATION, JUDICIALLY OR OTra, WHETHER Aar aticp To help figttl the fundtr? orterrnrlsm and money launderin ERWISE. Parrlot all financial instltutionS to obtain, verily, and record information that i erin Ac eel . Federal law "Ire, account For purposes of this section, accotaM shall r uncle Person who opens an AGREEMENT. This Note and the other loan p rstvad to ingiude loan acco Parties and may not be tradtcted owmants represent the dal aWeementu?FINAL al3mements of the parties. There are no IhY evidence of prior, contemporaneous between tits r?tteh oral agreements between the partiesOr. subw"nt oral WAIVER OF JURY TRIAL. TO THE IM(TENT PERMITTED BY APPLICABLE LAW, EACH BORROWER BY EXECUTION HEREOF AND BANK BY VOLUNTARILY AND INTENTIONALLY W ACCEPTANCE HEREOF, iSN04V1N0 Y IN RESPECT OF ANY LITIGATION BASE O RIGHT EACH MAY HAVE TO A T 13Y WITH THIS NOTE=, THE LOAN pOCUMENTS pO OUT OF DER OR IN CON TION NECTION AGREEMENT corjTeMPLATED To BE EXECUTED IN CONNECTION WITH THIS NOTE, OR ANY COURSE DEALING, STATEMENTS (WHE7HF VERB OR WRITTEN) OR A OF CONDUCT. COURSE OF ACTIONS OF ANY PARTY RESPECT i-IERET•O . THIS PROVIIS,R IS A MATERIAL EN O A T TO BANK NOTE. EACH OF THE PARTIES AGREES THAT THE TERMS HEREOF S TO AEPT?S REPLACE ANY PRIOR AGREEMENT RELATED TO ARBITRATION OF DISPUTE BETEEN ATHE ND PARTIES EXECUTED W ANY LOAN HERETOFORE ORE ORE t?CECUTED IN DOCUMENT OR ANY OTHER DOCUMENT OR AG BETWEEN ENT CONNECTION WITH, RELATED TO OR BEING RFP SUPPLEMENTED, pXTIENDED OR MODIFIED BY, THIS NOTE. LACED, tr'*yz3.o, %go e N^sac f"-ii -- n qDF$ IT • F' =019/130 IN WITNESS WHEREOF, 9orrower, vn the day and year first above written, has executed under seal. OauSed this Note tc be Relinhart Acqusltion, Inc. ay: N s *'t PresideAt (SEAL) CTA - l)& f M3231 Fkcmgy J0 QMtis Pape 7 rfttdr ?xlnjbr L ? ? gip, - r - ,i?? , _•,,?? _ PROMISSORY NOTE ?rL $z,soo,va0.00 ; 2005 ( s!§ SNL Trading, Inc. $018 Township Line Road Drexel Hill, Pennsylvania 19026 - (Individually and oollecfsvely "Borrower") Wachovin Bank, National Association r" 123 South Broad Street s=. Philadelphia. Pennsylvania 19109 (Hereinafter referred to as 'Bank') i r# Borrower promises to pay to the order of Bank, in lawful money of the United States of America, at its office indicated above or wherever else Bank may specify, the sum of TWO Million, Eight Hundred Thousand and Nol100 Dollars ($2,800,000.00) or such sum as may be advanced and outstanding from time to time, with Interest on the unpaid principal balance at the rala and on the terms provided in this Promissory Note (including all renewals, extensions or modifications hereof, this Note"). LOAN AGREEMENT. This Note is subject to the provisions of that certain Loan Agreement between Bank and Borrower of even date herewith, as modified from time to time. USE OF PROCEEDS. Borrower shall use the proceeds of the loan(s) evidenced by this Note for the commercial purposes of Borrower, as follows: Refinance existing mortgages and provide working capital SECURITY. Borrower has granted Bank a security Interest in the Collateral described in the Loan Documents, including, but not limited to, real and personal property collateral described in that certain security instrument of even date herewith. INTEREST RATE. Interest shall accrue on the unpaid principal balance of this Note during each Interest Period from the date hereof at a rate per annum equal to 1-month LIBOR plus 1.85% ("Interest Rate')_ "Interest Period' means each period commencing on and including the date an interest payment is due as provided in the Repayment Terms paragraph and ending on but excluding the date the next interest payment is due, with the first interest period commencing on the date of closing. Upon determination by Bank of the Interest Rate for any Interest Period, such Interest Rate shall remain in effect for the entire Interest Period until redetermined for the next successive Interest Period "LIBOR" is the rate for U_S. dollar deposits with a maturity equal to the number of months specified above, as reported on Telerate page 3750 as of 11:00 am., London time, on the second London business day before the relevant Interest period begins (or if not so reported, then as determined by Bank from another recognized source or interbank quotation). INDEMNIFICATION. Borrower shall indemnify Sank against Bank's loss or expense as a consequence of (a) Borrower's failure to make any payment when due under this Note, (b) any payment, prepayment or conversion of any loan an a day other than the last day of the Interest Period, or (c) any failure to make a borrowing or conversion after giving notice thereof ("Indemnified Loss or Expense'). The amount of such Indemnified Loss or Expense shall be determined by Bank based upon the assumption that Bank funded 144% of that portion of the loan in the London interbank market. DEFAULT RATE. In addition to ail other rights contained in this Note, fi a Default (as defined herein) occurs and as long as a Default continues, all outstanding Obligations, other than Obligations under any swap agreements (as defined in 11 U.S.C. § 101, as in effect from time to time) between Borrower and 53506G(Rev2201 NoteAm N T ?x ;.o art s?. Bank or Its affiliates, shall bear Interest at the Interest Rate plus 3°,o {"Default Rate"). The Default Rate shall also apply from acceleration until the Obligations or any judgment thereon is paid in full. INTEREST AND FEE(S) COMPUTATION (ACTUAU360). Interest and fees, if any, shall be computed on the basis of a 360-day year for the actual number of days in the applicable period ("Actual/360 Computation"). The Actual/360 Computation determines the annual effective yield by taking the stated (nominal) rate for a year's period and then dividing said rate by 360 to determine the daily periodic rte to be applied for each day in the applicable period. AppticatiW of the Actual/360 Computation produces an annualized effective rate exceeding the nominal rate. REPAYMENT TERMS. This Note shall be due and payable in principal payments as set forth in Schedule A attached hereto and made a part hereof, plus accrued interest thereon on the date each principal payment is due, All remaining principal and interest shalt be due and payable on September 15, 2010. APPLICATION OF PAYMENTS, Monies received by Bank from any source for application toward payment of the Obligations shall be applied to accrued interest and then to principal. If a default occurs, monies may be applied to the Obligations in any manner or order deemed appropriate by Bank. If any payment received by Bank under this Note or other Loan Documents is rescinded, avoided or for any reason returned by Bank because of any adverse claim or threatened action, the returned payment shall remain payable as an obligation of all persons liable under this Note or other Loan Documents as though such payment had not been made. DEFINITIONS. Loan Documents. The term "Loan Documents", as used in this Note and the other Loan Dcourrnents, refers to all documents executed in connection with of related to the loan evidenced by this We and any prior notes which evidence all or any portion of the loan evidenced by this Mote, and any letters of credit issued pursuant to any loan agreement to which this Note is subject, any applications for such letters of credit and any other documents executed in connection therewith or related thereto, and may include, without Hmile ion, a commitment letter that survives dosing, a loan agreement, this Note, guaranty agreements, security agreements, security instruments, financing statements, mortgage instruments, any renewals or modifications, whenever any of the foregoing are executed, but does not include swap agreements (as deemed in 11 U.S.C. § 1011, as in effect from time to time). Obligations. The Arm "Obligations", as used in this Note and the other Loan Documents, refers to. any and all Indebtedness and other obligations under this Note, all other obiigalJlolns under any other Loan Document(s), and all obligations under any swap agreements (as defined in 11 U.S_C. § 101, as in effect from time to time) between Borrower and Bank, or its affiliates, whenever enoubed, Certain Other Termy. All temps that are used but not otherwise defined in any of the LoaJ1 Documents shall have the definitions provided in the Uniform Commercial Code. LATE CHARGE. If any payments arc not timely made, Borrower shall also pay to Bank a late charge equal to 5"A of each payment past due for 10 or more days. This late charge shall not apply to payments due at maturity or by acceleration hereof, unless such late payment is in an amount not greater than the highest periodic payment due hereunder. Acceptance by Bank of any late payment without an accompanying Este charge shall not be deemed a waiver of Bank's right to collect such late charge or to collect a late charge for any subsequent We payment received. If this Note is secured by owner-occupied residential real property located outside the state in which the office of Bank first shown above is located, the late charge laws of the state where the real property is located shall apply to this dote and the late charge shall be the highest amount allowable under such laws, if no amount is stated thereunder, the late charge shall be 5% of each payment past due for 10 or more days. G=itiEBl- -- F ATtORNEYS' FEES ARD OT14FR COLLECTION COSTS. Borrower shall pay all of Bank's reasonable expenses actually incurred to enforce or collect any of the Obligations including, without limitation. reasonable arbitration, paralegals', attorneys' and experts' fees and expenses, whether incurred without the commencement of a suit, in any trial, arbitration, or administrative proceeding, or in any appellate or i? bankruptcy proceeding. i USURY. If at any time the atfecl:W interest rate under this Note would, but for this paragraph, exceed the maximum lawful rate, the effective interest rate under this Note shall be the maximum lawful rate, and any T1 amount received by Bank in excess of such rate shall be applied to principal and then to fees and expenses, or, if no such amounts are owing, retunled to Borrower. DEFAULT. 0 any of the following occurs, a default ("Default") underthis Note shall exist: Nonpayment; Nonperformance. The failure of timely payment or performance of the Obligations or Default under this Note or any other Loan Documents. False Warranty. A warranty or representation made or deemed t` made in the Loan Documents or furnished Bank in connection with the loan evidenced by this Note proves materially false, or if of a continuing nature, becomes materially false. Cross Default, At Bank's option, any defauft in payment or perfommance of any oblrgation under any other loans, contracts or agreements of Borrower, any Subsidiary or Affiliate of Borrower, any general partner of or the holder(s) of the majority ownership interests of Borrower with Bank or its affiliates ("Affiliate" shall have the meaning as defined in 11 U,S.C, g 101, as in effect from time to time, except that the term "Borrower' shall be substituted for the term "Debtor" therein; "Subsidiary" shall mean any business in which Borrower holds, directly or indirectly, a corrtrolling interest). Cessation; Bankruptcy, The death of, appointmer of a guardian for, dissolution of, termination of eadstence of, loss of good standing status by, appointment of a receiver for, assignment for the benefit of creditors of, or commencement of any bankruptcy or insolvency proceeding by or against Borrower, its Subsidiaries or Affiliates, if any, or any general partner of or the holden) of the majority ownership interests of Borrower, or any party to the Loan Documents. Material Capftl Structure or Business Alteration, Without prior written consent of Bank, (i) a material alteration irr the kind or type of Borrowers business or that of Borrower's Subsidiaries or Affiliates, if any; (ii) the Sale of eubstarMalty all of the business or assets of Borrower, any of Borrowers Subsidiaries or Af lates or any guarantor, or a material portion (10% or more) of such business or assets if such a sale is outside the ordinary course of business of Borrower, or any or Borrower's Subskliaries or Affiliates or any guarantor, or mare than 50% of the outstanding stock or voting power of or in any such en* in a single transaction or a series of transactions; Ciij the acquisition of substantially all of the business or assets or more than 509 of the outstanding stock or voting power of any other entity; or (iv) should any Borrower or any of Borrowers Subsidiaries or Affiliates or any guarantor enter into any merger or consolidation. Material Adverse Change. Bank determines in good faith, in its sole discretion, that the prospects for payment or performance of the Obligations are impaired or there has occurred a material adverse change in the business or prospects of Borrower, financial or otherwise. REMEDII=S UPON DEFAULT. If a Default occurs under this Note or any Loan Documents, Bank may at any time thereaflter. take the following actions; Bank Lion. Foreclose its security interest or lien against Borrower's accounts wkhout notice. Acceleration Upon Default. Accelerate the maturity of this Note and, at Bank's option, any or all other Obligations, other then Obligations under any swap agreements (as defined in 11 U_S_C- § 101, as in effect from time to time) between Borrower and Bank, or its affiliates, which shall be due in accordance with and governed by the provisions of said swap agreement; whereupon this Note and the accelerated Obligations shall be immediately due and payable; provided, however, if the Default is based upon a bankruptcy or insolvency proceeding commenced by or against Borrower or any guarantor or endorser of this Note, all Obligations (other their Obligations under any swap agreement as referenced above) shall automatically and Immediately be due and payable, Cumulative. Exercise any rights and remedies as provided under the Note and other Low Documents, or as provided by law or equity. FINANCIAL AND OTHER INFORMATION. Borrower shall deliver to Bank such information as Sank may reasonably request from time to time, including without limdation, financial statements and information pertaining to Borrower's financial condition. Such information shall be true, complete, and accurate. CONFESSION OF JUDGMENT. 7HE FOLLOW NG PARAGRAPH SETS FORTH A POWER OF AUTHORITY FOR ANY ATTORNEY TO CONFESS JUDGMENT AGAINST BORROWER. IN GRANTING THIS WARRANT OF ATTORNEY TO CONFESS JUDGMENT AGAINST BORROWER, THE BORROWER, FOLLOWING CONSULTATION WITH (OR DECISION NOT TO CONSULT) SEPARATE =f` COUNSEL FOR BORROWER AND WITH KNOWLEDGE OF THE LEGAL EFFECT HEREOF, HEREBY z KNOWINGLY, INTENTIONALLY, VOLUNTARILY, INTELLIGENTLYAND UNCONDITIONALLY WAIVES I ANY AND ALL RIGHTS THE BORROWER HAS OR MAY HAVE TO PRIOR NOTICE AND AN OPPORTUNITY FOR HEARING UNDER THE RESPECTIVE CONSTITUTIONS AND LAWS OF THE UNITED STATES OF AMERICA, COMMONWEALTH OF PENNSYLVANIA. OR ELSEWHERE INCLUDING, WITHOUT LIMITATION, A HEARING PRIOR TO GARNISHMENT AND ATTACHMENT OF THE BORROWER'S BANK ACCOUNT AND OTHER ASSETS. BORROWER ACKNOWLEDGES 3?. AND UNDERSTANDS THAT BY (ENTERING INTO THIS NOTE CONTAINING A CONFESSION OF JUDGMENT CLAUSE THAT BORROWER 13 VOLUNTARILY, INTELLIGENTLY AND KNOWINGLY r = GIVING UP ANY AND ALL RIGHTS, INCLUDING CONSTITUTIONAL FLIGHTS, THAT BORROWER HAS OR MAY HAVE TO NOTICE AND A HEARING RIEFORE JUDGMENT CAN BE ENTERED AGAINST BORROWER AND BEFORE THE BORROWERS ASSETS, INCLUDING, WITHOUT i[ Lt NTATION, ITS BANK ACCOUNTS, MAY BE GARNISHED, LEVIED, EXECUTED UPON ANDIOR ATTACHED. BORROWER UNDERSTANDS THAT ANY SUCH GARNISHMENT, LEVY, EXECUTION ANDIOR ATTACHMENT SHALL RENDER THE PROPERTY GARNISHED, LEVIED, EXECUTED UPON OR ATTACHED IMMEDIATELY UNAVAILABLE TO BORROWER. IT IS SPECIFICALLY ACKNOWLEDGED BY BORROWER THAT THE BANK HAS RELIED ON THIS WARRANT OF ATTORNEY AND THE MiIGHT'S WAIVED BY BORROWER HEREIN IN RECEIVING THIS NOTE AND AS AN INDUCEMENT TO GRANT FINANCIAL ACCOMMODATIONS TO THE BORROWER. If a Default occurs under this Note or any other Loan Documents, each Borrower herby jointly and severally authorizes and empowers any attorney of any court of record or the prothonotary or clerk of any county in the Commonwealth of Pennsylvania. or in any jurisdiction where permitted by law or the clerk of any United States District Court, to appear for Borrower in arty and all actions which may be brought hereunder and enter and confess judgment against the Borrower or any of them in favor of the bank for such sums as are due or may become due hereunder or under any other Loan Documents, together with costs of suit and actual collection costs including, without limitation, reasonable attorn"' fees equal to 50A of the Obligations then due and owing but in no event less than $5,000.00, with orwithout declration, without prior notice, without stay of execudoh and with release of an procedural errors and the right to Issue executions forthwith. To the extant permitted by law, Borrower waives the right of inquisition on any real estate levied on, voluntarily condemns the some, alAhorizas the prothonotary or clerk to enter upon the writ of execution this voluntary condemnation and agrees that such real estate may be sold on a writ of execution: and also waives any relief from any appraisement, " or exemption law of any state now in force or heraatler enacted. Borrower further waives; the right to any notice and hearing Print to the execution, levy, attachment or other type of enforoement of any judgment obtained hereunder, including, without limitation, the right to be note and heard prior to the garnishment, levy, execution upon and viltachment of Borrower`s bank accounts; and other property. If a copy of this Note vetifred by affidavlt of any officer of the Bank shalt have been tiled in such action, it shall not be necessary to Tile the original thereof as a warrant of attorney, any practice or usage to the contrary notwithstanding. The authority heroin granted to Confess judgment shall not be exhausted by any single exercises thereof, but shall continue and may be exercised fr*m lirne to time as often as the Bank shall fmd it necessary and desirable and at ail times until full payment of all amounts due hereunder and under any other Loan Documents. The Bank may confm one or more judgments in the Same or different jurisdictions for all or any part of the Obligations arising hereunder or under any other Loan Documents to which Borrower is a party, without regard to whether judgment has theretofore been Confessed on more than one =43sion for the same Obligations. In the event that any judgment confessed against the Borrower is stricken or opened upon application by or on behalf of Borrower or any obligor for any reason, the Bank is hereby authorized and empowered to again appear for and confess judgment against Borrower for any part or all of the Obligations owing under this Note and/or for any other liabilities, as herein provided. E,' -.- WAIVERS AND AMENDMENTS. No waivers, amendments or modifications of this Note and other Loan Documents shall be valid unless in writing and signed by an officer of Hank. No waiver by Bank of any Default shall operate as a waiver of any other Default or the same Default on a future occasion, Neither the Failure nor any delay on the [tart of Bank in exercising any right, power, or remedy under this Note and ( other Loan Documents shall operate as a waiver thereof, nor shall a single or partial exercise thereof ?__ preclude any other or further exercise thereof or the exercise of any other rigtlt power or remedy. 94 Except to the extent otherwise provided by the Loan Documents or prohibited by law, each Borrower and each other person liable under this Note waives presentment, protest, notice of dishonor, demand for payment, notice of intention to accelerate maturity, notice of acceleration of maturity, notice of sale and all other notices of any kind. Further, each agrees that Bank may (i) extend, modify or renew this Note or _ make a novetion of the loan evidenced by this Note, and/or (il) grant releases, compromises or indulgences with respect to any collateral securing this Note, or with respects person liable under this Note or any other Loan Documents, all without notice to orBorrower con? seam oor other f each ''?• Borrower and other such person, and without atTecting the liability of each Borrower and other such eenc d by this NoBank te without thnot e cconse t a of the Boor renew ibis Note or nvwe or if there is more n then one Borrower, Without the consent of at least one Borrower; and further provided, if there is more than one Borrower, Bank may not enter into a modification of this Note which increases the burdens of a Borrower without the consent of that Borrower. MISCELLANEOUS PROVISIONS. Assignment, This Note and the other Loan Documents shall inure to the benefit of and be binding upon the parties and their respective heirs, legal representatives, successors and assigns. Bank's interests in and rights under this Note and the other Loan Documents are freely assignable, in whole or in part, by Bank. In addition, nothing in this Note or any of the other Loan Documents shall prohibit Bank from plettlging or assigning this Note or any of the other Loan Documents or any interest therein to any Federal Reserve Bank. Sommw shell not assign its rights and interest hereunder without the prior written consent of Batik, and arty attempt by Borrower to assign wlftuk Bank's prior written consent is null and void. Any assignment shall not release Borrower from the Obligations- Applicable Law; Conflict Between Documents. This Note and, unless otherwise provided in any other Loan Uocumen% the other Loan Documents shall be govemed by and construed under the laws of the state named in Bank's address on the first page hereof without regard to that state's conflict of laws principles. If the terms of this Note should conflict with the tens of any loan agreement or any commitment letter that survives closing, the terms of this Note shall control. Borrower's Accounts. Except as prohibited by law. Borrower grants Bank a security interest in all of Borrowers accounts with Bank and any of its affiliates. Smp Agreements. All swap agreements (as defined in 11 U.S.C. S 101, as in effect from time to time), if any, between Borrower and Bank or its affiliates are independent agreements governed by the written provisions or said swap agreements, which wfll remain in full force and effect, unaffected by any repayment, prepayment, acceleration, reduction, increase or change in the terms of this Note, except as otherwise expressly provided in said written swap agreements, and any payoff stai+entent from Bank relating to this Note shall not apply to said swap agreements except as otherwise expressly provided in such payoff statement. Jud6diction. Borrower irrevocabSy agrees to non-exclusive personal jurisdiction in the state named in Bank's address on the first page hereof Severabillty, If any provision of this Note or of the other loan Documents shall be prohibited or invalid under aWI'rc;able law, such provision shall be ineffective but only to the extent of such prohibition or invagtlity, without invalidating the remainder of such provision or the remaining provisions of this Note or other such document. Notices. Any notices to Borrower shall be sufficiently given, if in writing and mailed or delivered to the Borrower's address shown above or suoh other address as provided hereunder, and to Bank, If In writing and mailed or delivered to Wachovia Bank, National Association, Mail Code VA7028, P. O. Box 13327, Roanoke. VA 24040 or Waohovia Bank, National Association, Mail Code VA7628, 10 South Jefferson Street, Roanoke, VA 24011 or such other address as Bank may specify in writing from time to time. Notfces to Bank must include the maid code, In the event that Borrower changes Borrower's address at any time prior to the date the Obligations are paid in fun, Borrower agrees to promptly give written notice of said change of address by registered or certified mail, return receipt requested, all charges prepaid. Plural; Captions. All references in the loan Documents to Borrower, guarantor, person, document or other nouns of reference mean both the singular and plural form, as the case may be, and the term "person" shall mean any individual, person or entity. The captions contained in the Loan Documents are inserted for convenience only and shall not affect the meaning or interpretation of the Loan Documents. Advances. Bank may, in its sole discretion, make other advances which shall be deemed to be advances under this Note, even though the stated principal amount of this Note may be exceeded as a result thereof. Posting of Payments. All payments received during normal banking hours after 2,00 p.m_ local time at the office of Bank first shown above shall be deemed received at the opening of the next banking day_ Joint and Several Obligations. If there is more than one Borrower, each is jointly and severally obligated. Fees and Taxes. Borrower shall promptly pay all documentary, intangible recordation and/or similar taxes on this transaction whether assessed at closing rrt or arising from time to time. LIMITATION ON LIABILITY; WAIVER OF PUNITIVE DAMAGES. EACH OF THE PARTIES HERETO, INCLUDING BANK BY ACCEPTANCE HEREOF, AGREES THAT IN ANY JUDICIAL, MEDIATION OR ARBITRATION PROCEEDING OR ANY CLAIM OR CONTROVERSY BETW15EN OR AMONG THEM THAT MAY ARISE OUT OF OR BE IN ANY WAY CONNECTED WITH THIS AGREE=MENT, THE LOAN DOCUMENTS OR ANY OTHER AGREEMENT OR DOCUMENT' BETWEEN OR AMONG THEM OR THE OBLIGATIONS EVIDENCED HEREBY OR RELATED HERETO. IN NO EVENT SHALL ANY PARTY HAVE A REMEDY OF, OR BE LIABLE TO THE OTHER ah FOR, (11) INDIRECT. SPECIAL OR CONSEQUENTIAL DAMAGES OR (2) PUNITIVE OR EXEMPLARY DAMAGE=S. EACH OF THE PARTIES HEREBY EXPRESSLY WAIVES ANY RIGHT OR CLAIM TO ?a PUNITIVE OR EXEMPLARY DAMAGES THEY MAY HAVE OR WHICH MAY ARISE IN THE FUTURE IN CONNECTION WITH ANY SUCH PROCEEDING, CLAIM OR CONTROVERSY, WHETHER THE SAME IS RESOLVED BY ARBITRATION, MEDIATION, JUDICIALLY OR OTHERWISE. Patriot Act Notice. To help fight the funding of terrorism and money laundering activities, Federal law requires all financial institutions to obtain, verify, and record information that identifies each person who opens an account For purposes of this section, account shall be understood to include Joan accounts. FINAL AGREEMENT. This Note and the other Loan Documents represent 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 no unwritten oral agreements between the parties. WAIVER OF JURY TRIAL. TO THE EXTENT PERMITTED BY APPLICABLE LAW, EACH OF BORROWER BY EXECUTION HEREOF AND BANK BY ACCEPTANCE HEREOF, KNOWINGLY, VOLUNTARILY AND INTENTIONALLY WAIVES ANY RIGHT EACH MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LITIGATION BASED ON, OR ARISING OUT OF, UNDER OR IN CONNECTION WITH THIS NOTE, THE LOAN DOCUMENTS OR ANY AGREEMENT CONTEMPLATED TO BE EXECUTED IN CONNECTION WITH THIS NOTE, OR ANY COURSE OF CONDUCT, COURSE OF DEALING, S-rATMW-NTS (WHETHER VERBAL OR WRITTEN) OR ACTIONS OF ANY PARTY WITH RESPECT HERETO. THIS PROVISION IS A MATERIAL INDUCEMENT TO BANK TO ACCEPT THIS NOTE. EACH OF THE PARTIES AGREES THAT THE TERMS HEREOF SHALL SUPERSEDE AND RSP1ACE ANY PRIOR AGREEMEW RELATED TO ARBITRATION OF DISPUTES BETWEEN -Mr: PARTIES CONTAINED IN ANY LOAN DOCUMENT OR ANY OTHER DOCUMENT OR AGREEMENT HERETOFORE EXECUTED IN CONNECTION WITH, RELATED TO OR BEING REPLACED, SUPPLEMENTED, EXTENDED OR MODIFIED BY, THIS NOTE. IN WITNESS WHEREOF, Borrower, on the day and year first above written, has caused this Note to be executed under seal. SNL Trading, Inc. B (SEAL) i holas R , resident TraWrtg*- 7Mrke CAT. E)"I #690729 Facility ID 345425 F 1. 6. 4 : F 1V -, 1 ,,1 1, r?;JE N SCHEDULE A TO PROMISSORY MOTE I THE ORIGINAL PRINCIPAL AMOUNT OF $2,800,000.00 dated • t 2005 ps The principal amount of the Note will be paid in the amounts and on the dates as shown below: V, Pavmgnt Due Date Principal Payment Rwainina Princip al -- Due Outstanding # (folloowing scheduled principal sri Sep 15, 2005 0100 payment) 2,800,000.00 , S Oct 17, 2005 15,556.00 2,784,444.00 i Nov 15, 2005 15,556.00 2,768,888.00 Dec 16, 2005 16,556.00 2,753,332.00 Jan 17, 2006 15,556.00 2,737,776.00 Feb 15, 2006 15,556.00 2,722220.00 Mer 15, 2006 16,556.00 2,706,664.00 Apr 17, 2006 15,556.00 21691,108.00 May 15, 2006 15,556.00 2,675,552.00 Jun 15, 2006 15,556.00 2,659,996.00 Jul 17, 2006 15,556.00 2,644,440.00 Aug 15, 2006 16,556,00 2,625,884.00 Sep 15, 2006 15,556.00 2,613,328.00 Oct 16, 2006 15,556.00 2,597,772.00 Nov 15, 2006 15,556.00 2,582,216.00 Dec 15, 2006 15,556.00 21566,660.00 Jan 16, 2007 15,556.00 2,561,104.00 Feb 15, 2007 15,556.00 2,535,548.00 Mar 15, 2007 15,556.00 2,519,992.00 Apr 16, 2007 15,556.00 2,504,436.00 May 15, 2007 15,556.00 2,488,680.00 Jun 15, 2007 15,556.00 2,473,324.00 Jul-16,2007 15,556.00 2,457,768.00 Aug 15, 2007 15,556.00 2,442,212.00 Sep 17, 2007 15,556.00 2,426,656.00 Oct 15, 2007 15,556.00 2,411,100.00 Nov 15, 2007 15,556.00 2,395,544.00 ?. - r - FI ri Dec 17, 2007 15,556.00 2,379,988.00 Jan 15, 2008 15,556.00 2,364,432.00 Feb 15, 2008 15, 556.00 2, 348, 876.00 Mar 17, 2008 15,556.00 2,333,320.00 q Apr 15, 2008 15,556.00 2,317,764.00 May 15, 2008 15,556.00 2,302,208.00 Jun 16, 2008 15,556.00 2,286,652.00 Jul 15, 2008 15,556.00 2,271,096.00 Aug 15, 2008 15,556.00 2,255,640.00 Sep 15, 2408 15,556.00 2,239,984.00 m Oct 15, 2008 15,556.00 2,224,428.00 Nov 17, 2008 15,556.00 2,208,872.00 Dec 15, 2008 15,556.00 2,193,316.00 Jan 15, 2009 15,566.00 2,177,760.00 Feb 17, 2009 15,556.00 2,162,204.00 Near 16, 2009 151556.00 2,146,648.00 Apr 15, 2009 15,556.00 2,131,092.00 May 15, 2009 15,556.00 2,115,536.00 Jun 15, 2009 15,556.00 2,099,980.00 Jul 15, 2009 15,556.00 2,084,424.00 Aug, 17, 2009 15,556-00 2,068,868.00 Sep 15, 2009 15,556.00 2,053,312.00 Oct 15, 2009 15,556.00 2,037,756.00 Nov 16, 2009 15. 2,022,200.00 Dec 18, 2009 15,556.00 2,006,644.00 Jan 15, 2010 15,556.00 11991,088.00 Feb 16, 2010 15,556.00 1,975,532.00 Mar 15, 2010 15,556.00 1,959,976.00 Apr 15, 2010 15,556.00 1,944,420.00 May 17, 2010 15,556.00 1,928,864.00 Jun 15, 2010 15,556,00 1,913,308.00 Jul 15, 2010 15,656.00 1,897,752.00 Aug 16, 2010 15,556.00 1,882,196.00 SW 15, 2010 1,882,196.00 0.00 F _ r. _'V E Id r ?!. 6, L;,; 7 4:22PhA ntt?AN'' EN1EN MODI`FICA17ON NUMBER ONE TO THE PROMISSORY NOS = r. ?s tro a? z =f y w fry'; SNL Trading, inc. 5018 Township Line Road Drexel Hill, Pennsylvania 19026 (hereinafter referred to as "9orrower') h! c_;. 7 F; F. 2 , Wachovia Bank, National Association Philadelphia, Pennsylvania 19109 (Hereinafter referred to as 13anK') THIS AGREEMENT is entered into as of Zy by and between Bank and Borrower. RECITALS SanK i8 the holder eff a Promissory Note executed and delivered by Borrower, dated September 16, 2005. rrrthe original principal amount of $2,600,009.00 (the "Note'); Borrower and Bank have agreed to modify the terms of the Note. In consideration of Banks continued extension of credit and the agreements containeG herein, the parties agree as follows: AGREEMENT ACKNOWLEDGMENT OF BALANCE. Borrower acknowledges that the most recent Commercial Loan Invoice sent to Borrower with respect to the Obligations under the Nate is correct MODIFICATION& The Note is hereby modifred by deleting the provisions in the Note establishing the applicable interest rate and any Indemnification or prepeyrrlent obligations, and substituting the following in their place and stead, INTEREST RATE Interest shall accrue on the unpald principal balance of this Note during each interest Period from the date hereof at a rate per annum equal to 1-morith LIBOR plus 1,770% ("Interest Rate'), 'Interest Period" means each period commencing on and including the date an interest payment is due as provided in the Repayment Terns paragraph and endirg on but excluding the date the next interest payment is clue, with the first interest period comrnenckQ on the date of closing. Upon determination by Bank of the Interest Rate for any Interest Period, such Interest Rate shall remain in effect for the entire interest Period until redetermined for the next successive Interest Period, "LIBOR" Is the rate for U.S. dollar deposits with a maburi(y equal to the number of months specified above, as reported on Telerate page 3750 as of 11:00 a.nL, London time, on the second London business day before the relevant interest Period begins (or if not so reported, then a5 determined by Bank from another recognized source or interi7anlc quotation). INDEMNIFICATION. Borrower shall indemnity Bark against Banks loss or expense as a consequence of (a) Borrower's failure to make any payment when due under this Note, (b) any payment, prepayment or conversion of any loan on s day other than the last day of the Interest Period, or (0) any failure to make a borrowing ar conversion after giving notice thereof ("indemnified Loss or Expense")_ The amount of such Indemnified Loss or Expense shall be determined by Bank based upon the assumption that Bank funded 100% of that portion of the loan in the London Interba nk market. 040M [FLY 116 111 PC1440029XXXXOOI COMAEXXXXX Ma ar4- MAE 0 E'. b. 2 i1j7_ 4; 24PN1 R? - MAN ?",;E_MENT F II f Nt11, ;p; P, 22 DEFAULT RATE. In addition to all other rights contained in this Note, if a Default (as defined herein) occurs and as long as a Default continues, all outstanding Obligations, other than Obligations under any • P aSreemersts (as defined in 11 U.S.C. § 101, as In effect from time to time) between Borrower and Bank or its affrlfates, shall bear interest at the Interest Rate plus 3% ("Default Rate"). The Default Rate shall also apply ftorrl aoc:eleration until the Obligations or any judgment thereon is paid in full. INTEREST AND FE=E(S) COMPUTATION (AOTMAL/300). Interest and tees. if any, shall be computed ' on the basis of a 360-day year for the actual number of days In the applicable period ("Actuall3W r, Computation")- The ActuaMC Computation determloas the annual effective yleld by taKng the stated a (nominal) rate for a yeafs period and then dviding said rate by 360 to determine the daily periodic rate to be appifed for each day in the applicable period. Application of the Actuar/360 Computation produces an annualized effective rate exceeding the nominal rate. ACKNOWLEDGMENTS AND REPRESENTATIANS_ Borrower acknowledges and represents that the Note and other Loan Documents, as amended hereby, are in full force and effect without any defense, - b counterclaim, right or claim of set-off, that, after giving effect to this Agreement, no default or event that with the passage of time or giving of notice would constitute a default under the Loan Documents has $? occurred, all representations and warranties contained in the Loan Documents are true and correct as of ' this date, all necessary action to authorize the execution and delivery of this ry Agreement has been taken; and this Agreement is a modifacatim of an existing obligation and Is not a novation. COLLATERAL. Borrower acicnowiedges and confirms that there have been no changes in the ownership of any collateral pledged to secure the OFbigatiores (the "Collateral") since the Collateral was originally pledged; Borrower acknowledges and confirms that the Bank has existing, valid flint priority security Interests and liens in the Collateral; and that such security interests and liens shall secure Borrower's Obligations, including any modifiadiort of the Note or Loan Agreement, if any, and ail future modificatlons, extensions, renewals and/or replacements of the Loan Documents. MISCELLANEOUS, This Agreement shall be constfued in accordance with and governed by the laws of the applicable state as originally provided in the Loan Documenft without reference to that state's aordlicts of iaw principles. This Agreement and the other Loan Documents constitute the sole agreement of the parties with respect to the aubj0d matter thereof and supersede all oral negotiations and prior writings with respect to the subject matter thereof. Na amendment of this Agreement, and no waiver of any one or more of the provisions hereof shall be effective unless set forth, in writing and signed by the partfes hereto. The illegality, unenforoeability or inconsistency of any provision of this Agreement shall not in any my affect or Impair the legality, enforceabillty or consistency of the remaining provisions of this Agreement or the other Loan Documents. This Agreement and the other Loan Documents are intended to be consistent. However, in the event of any inoonsist;ercies among this Agreement and any of the Loan Documents, the terms ofthis Agreement, and then the Note, shall control. This Agreement may be executed. in any number of counterparts and by the different parties on separate counterparts. Each such counterpart shall be deemed an original, but all such oounterparts shall together constitute one and the same agreement. Terms used in this Agreement whloh are capitalized and not otherwise defined herein shall have the meanings ascribed to such terms in the Note. LIMITATION ON LIABILITY; WAIVER OP PUNITIVE DAMAGES. EACH OF THE PARTIES HEIRETO, INCLUDING BANK BY ACCEPTANCE HEREOF, AGREES THAT IN ANY JUDICIAL„ MEDIATION OR ARBITRATION PROCEIMING OR ANY CLAIM OR CONMOVERSY i3EN,-EN OR AMONG THEM THAT MAY ARISE OUT OF OIZ 13E IN ANY WAY CONNECTED WITH THIS AGREEMENT. THE LOAN DOCUMENTS OR ANY OTHER AGREEMENT OR DOCUMENT BETWEEN OR AMONG THEM OR THE OBLIGATIONS EVIDENCED HEREI3Y OR RELATED HERETO, IN NO EVENT SHALL ANY PARTY HAVE A REMEDY OF, OR BE LIABLE TO THE OTHER FOR, (1) INDIRECT, SPECIAL OR CONSEQUENTIAL DAMAGE=S OR (2) PUNITIVE OR EXF-MPLARY DAMAGES. EACH OF THE PARTIES HEREBY EXPR5S8LY WAIVES ANY RIGHT OR CLAIM TO PUNITIVE OR EXEMPLARY DAMAGES THEY MAY HAVE OR VIMICH MAY ARISE IN THE FUTURE IN CONNECTION WITH ANY SUCH PROCEEDING, CLAIM OR CONTROVERSY, WHETHER THE SAME IS RESOLVED BY ARBITRATION, MEDIATION, JUDICIALLY 5..40M ($kw Sao) Page 2 F??,B. 6. 7 _ 4 Ph<? R' AANAGEMENT NO. 767 - P. 23 OR oTHERWISE. FINAL AGREEMENT. This Agreement and the other Loan Documents represent the frnaf agreement between the parties and may net be contradicted by evidence of prior, oonternporaneous or subsequent oral agreements of the patties. There are no unwritten oral agreements between the parties. Borrower reaffirms and restates the 'Following with respect to the Note as modified erect CONIr'ESSION OF JUDGMENT. THE FOLLOWING PARAGRAPH SETS FORTH A POWER OF AUTHORITY FOR ANY ATTORNEY TO CONFESS JUDGMENT AGAINST BORROWER. IN taRANTING THIS WARRANT OF ATTORNEY TO CONFESS JUDGMENT AGAINST 1ORROWER, THE .? BORROWER, FOLLOWING CONSULTATION WITH (OR DECISION NOT TO CONSULT) SEPARATE COUNSEL FOR BORROWER ANI7 WITH KNOWLEDGE OF THE LEGAL EFFECT HEREOF. IMF-RESY 3 KNOWINGLY, INTENTIONALLY, VOLUNTARILY, INTELLIGENTLY AND UNCONDITIONALLY WAIVES ANY AND ALL RIGHTS THE 5ORROWER HAS OR MAY HAVE TO PRIOR NOTICE AND AN OPPORTUNITY FOR HEARING UNDER THE RESPECTIVE CONSTITUTIONS AND LAWS OF THE Ka UNITED STATES OF AMERICA, COMMONWEALTH OF PENNSYLVANIA, OR EI SEW14ERE s INCLUDING, WITHOUT LIMTTATPION. A BEARING PRIOR TO GARNISHMENT AND ATTACHMENT dF THE SORROWEWS BANK ACCOUNT AND OTt1W ASSETS. BORROWER ACKNOWLEDGES AND UNDERSTANDS T14AT BY ENTERING INTO TKIS AGREEMENT CONTAINM A CONFESSION OF JUDGMENT CLAUSR THAT BORROWER IS VOLUNTARILY, INTELLIGENTLY AND KNOWINGLY GIVING UP ANY AND ALL RIGWS, INCLUDING CONSTITUTIONAL RIGHTS, THAT BORROWER HAS OR MAY HAVE TO NOTICE AND A NEARING HEPORE JUDGMENT CAN BE ENTERED AGAINST BORROWER AND BEFORE THE BORROWER'S ASSETS. INCLUDING, WITHOUT LIMITATION, ITS BANE( ACCOUNTS. MAY BE GARNISHED , LEVIED, EXECUTED UPON AND1OR ATTACHED. BORROWER UNDERSTANDS THAT ANY SUCH GARNISHMEW, LEVY, EXECUTION AN01011 ATTACHMENT SHALL PENDER THE PROPERTY GARINIMMED, L OVIE0. IZ-XPCUTED UPON OR ATTACHED IMMEDIATELY UNAVAILABLE TO BORROWER. IT IS SPE=CIFICALLY ACKNOWLEDGED BY BORROWER THAT THE BANK HAS RELIED ON THIS WARRANT OF ATTORNEY AND THE RIGHTS WAIVED BY BORROWER HEREIN IN RECEIVING THIS AGREEMENT AND S AN INDUCEMENT TO GRANT FINANCIAL ACCOMMODATIONS TO THE BORROWER. If a Dafauft occurs under this Agreement or any other loan Documents, each Borrower hereby jointly and severally authorizes and empowers any attorney of any court of second or the prothonotary or clerk of any county in the Commonwealth of Pennsylvania, or in any jurisdiction where permktW by law or the clerk of any UnW States District Court, to appear for Burrower in any and all actions which may be brought hereunder and enter and confess Ndgmen't against the Borrower or any of them in favor of the Sank or Such sums as are due or may become due hereunder or under any other Loan Documentsr together costs of $uit and actual collection costs including. without limitation, reasonable attorneys' fees equal to 5% ofthe Obligations then due and owing but in no event less than $5, 000.00, With or without declaration, without prior notice, without Stay of exeoution and with release of all procedural errors and the right to issue executions forthwlth. To the eXtent permitted by law. Borrower waives the right of inquisition on any real estate leered on, voluntarily condemns the same, authorizes the prothonotary or dark to enter upon the writ of execution this voluntary condemnation and agrees that such real estate may be sold on a writ of execution; and also waives any relief from any appraisement, Stay or exemption law of any state now in force or hereafter enacted. Borrower further waives the Fight to any notice and heating prior to the axecuttion, levy, attachment or other type of enforcement of any judgment obtained hereunder, including, without limitation, the right to be notified and heard prior to the garnishment, levy, execution upon and attachment of Sorfo"Ws bank accounts and other property. If a copy of this Agreement verified by affidavit of any officer of the Bank shat( have be filed ousage the Cht alllno be necessary to file the od&81 thereof as a warrant of attorney, any practice t noWthatariding. The authority herein granted to confess judgment shall not be exhausted by any aingle exercise thereof. but shall confmue and may be exercised from time to time as often as the Bank shall rind 'd necessary and desirable and at all times until felt payment of all amounts clue hereunder and under any other Loan Documents. The Bank may Confess orte or more judgments in the same or cliffereTit IuTisdictions for all or any part of the Obligations arising hereunder or under any other Loan Documents to which borrower is a party, without regard to whether judgment Aas theretofore been confessed on more 64OW(RW IM P*ge 3 rca (' ' P?AIV?("'EM T ?Vc?. iF7 F'. 24 than one oacasiQn for the Borrower is stricken: or o S?a orme Ob)igaWns. fn the event that the Bank is hereby author¢ed Pon aPPlicstion by or on behalf of Bp any Judgment oir an confessefor any d rea ?! . Borrower for an and eampower to y obl' the son !. as herein Pravid? part or all of the 45119 lions owing unaDahl aPPear for and confess l?lgment aga t ? der this Agreement and/or for any other )iablliti9s, S? WAIVER OIL JURY TRIAL Ta THE `-x BORROWER BY ENT PERMITTED BY EXECUTION HEREOF AND SANK APPLICABLE LAW, EACH OF VOLUNTARILY AND INTENTIONALLY WAIVES ANY ACCEPTANCE F?EREc7F, KNOWINGLY, 2 WITH LITIGATION BASED ON, AN ARISING RiGHT EACH OUT M Y HAVE TO A TFq IS AGREEMENT. THE LOAN DOCUMENTS OR ANY TRIAL BY JURY r EXECUTED IN CONNECTION WITH THIS AGREEMENT, OF. OR OR AGREEMENT CONTEMPLATED TO RESPECT HERETO. (WHETHER' COURSE OCdND CC?URSE WITH ERE'O. THIS PROVISION 5BA MATERIAL WRITTEN) OR ACTIONS OF ANY r_ THIS AGREEMENT. EACH OF PARTY tv° E AND REP 7K PARTIES AGI,1: 11GfiAAENT TO BANK TO ACCi;pY i.ACE ANY PRIOR AGREEMENT REEA EO TO AR ITRAT HEREOF SHALL SUPERSED ION OF DISPUTES AGREEMENT EX C IN ANY LOAN DOCUMENT REf'LACt?D, SUPPLE EXECUTED IN CONNEGTICIIV WITH R ANY RE OTHER DOCUMENT OR M£NTED. EXTENDED OR MODIFIED IATED TO OR BEING IN WITNESS BY, 'THIS AGREEMENT above WrAten.WIIEREOFthe ur+dersigned have signed andsealed this Agreement the day and year first SNP, Trading. Irk By., v olas RePnh?ident {SAL) Tracking*: 44W7*, CAT - OaMj * a3 M, r=Bcr,Ky to aanozi 040W-(it, 14 0) pa" 4 Cxti?b?tG Fs!. R' ',9A'u ^ G E iM E N T PROMISSORY NOTE J f'. J December/ 2005 D, B AND E ENTERPRISES, LLC 515 Noith Reading Road 71 Ephrata, Pennsylvania 17522 (Hereinafter referred to as "Borrower") Wachovia Bank, National Association Philadelphia, Pennsylvania 19109 (Hereinafter referred to as `Bank") Borrower promises to pay to the order of Bank, in lawful money of the United States of America, at its office indicated above or wherever else Bank may specify, the sum of One Million, Eight Hundred Forty Thousand and No/100 Dollars ($1,$40,000.00) or such sum as may be advanced and outstanding from time to rime, wish interest on the unpaid principal balance at the rate and on the terms provided in this Promissory Note (including all rene"Is, extensions or modifications hereof. this "Note'). LOAN AGREEMENT. This Note is subject to the provisions of that certain Loan Agreement between Bank and Borrower of even date herewith, as modified from time to time. USE. OF PROCEWS. Borrower shall use the proceeds of the loan(s) evidenced by this Note for the commercial purposes of Borrower, as follows: Refinance existing mortgages, SECURITY. Borrower has granted Bank a security interest in the collateral described in the Loan Documents, including, but not limited to, real and personal' property collateral described in that certain security instrument of even date herewith. INTEREST RATE Interest shall accrue on the unpaid principal balance of this Note during each interest Period from the date hereof at a rate per annum equal to 1-month LIBOR plus 1.7% ("Interest Rate"). "Interest Period" rneans each pviod commencing on and including the date an interest payment is due as provided in the Repayment Terms paragraph and ending on but excluding the date the next interest payment is due, with the first interest period commencing on the daW of closing, Upon determinmon by Bank of the Interest Rate for any Interest Period, such interest Rate shall remain in effect for the entire Interest Period until redetermined for the next successive Interest Period. "LIBOR" Is the rate for U-S, dollar, deposits with a maturity equal to the number of months specified above, as reported on Telerate page 3750' as of 11:00 a.m_, London time, on the second London business day before the relevant Interest Period begins (or if not so reported, then as determined by Bank from another recognized source or interbank quotation). INDEMNIFICATION. Borrower shall indemnify Bank against Bank's loss or expense as a consequence of (a) Borrower's failure to make any payment when due under this Note, (b) any payment, prepayment or conversion of any loan on a day other than the last day of the interest Period, or (c) any failure to make a borrowing orconversidn after giving notice thereof ("Indemnified Loss or Expense")- The amount of such Indemnified Loss or Expense shall be determined by Bank based upon the assumption that Bank funded, 100'%b of that portion of the loan in the London interbank market. DEFAULT RATE. In addition to all other rights contained in this Note, V a Default (as defined herein) occurs and as long as a Default continues, all outstanding Obligations, other than Obligations under any swap agreements (as defined in l' 1 U,S.C. § 101, as in effect from time to time) between Borrower and • tawso(RAVM.0) PC14:3223OXXXXOOI CDCNOTEXXX Nok dac CNOTE FEE. i0 FMl Rr MAN'( EfVIENi ;d Bank or its affiliates, shall bear interest at the interest Rate plus 3% ("Default Rate"). The Default Rate shalf also apply from acceleration until the Obligations or any judgment thereon Is paid In full. INTEREST AND FEE(S) COMPUTATION (ACTUAL1360). Intent and fees, if any, shall be computed on the basis of a 360-day year for the actual number of days in the applicable period CActuati360 Computation"). The Actuaf/360 Computation determines the annual effective yield by taking the stated (nominal) rate for a year's period and then dividing said rate by 360 to determine time daily periodic rate to be applied for each day in the applicable period. Application of the Actual/360 Computation produces an annualized effective rate exceeding the nominal rate. REPAYWNT TERMS. This Note shall be due and payable as set forth hereinbelow. From the date of this Note, accrued interest shall be payable in consecutive monthly payments payable on each of the dates listed in the column titled "Payment Due Date" in Schedule A attached hereto and made a part hereof ('Schedule A). Principal shall be payable an each of the dates and in the amounts set forth in Schedule A. All remaining principal and interest shall be due and payable on December 15, 2010. APPJJCATION OF PAYMENTS. Monies received by Bank from any source for application toward payment of the Obligations shall be applied to accrued interest and then to, principal. If a Default occurs, monies may be applied to the Obligations in any manner or order deemed appropriate by Bank. If any payment received by Bank urider this Note or other Loan Documents is rescinded, avoided or for any reasan refurrred by Bank because of any adverse claim or threatened action, the returned payment shall remain payable as an obligation of all persons liable under this Note or other Loan Documents as though, such payment had not been made. DEFINITIONS. Loan Document,. The term "Loan Documents", as used in this Note and the other Loan Documents, refers to all documents executed In connection with or related to the loan evidenced by this Note and ony prior notes which evidence all or any portion of the loan evidenced by this Note, and any letters of credit issued pursuant to any loan agreement to which this Note is subject, any applications for such, letters of credit and any other documents executed in connection therewith or related thereto, and may include, without limitation, a commitment letter that surv vea closing, a loan agreement, this Note. guaranty agreements, security agreements, security instruments, financing statements, mortgage instruments, any renewals or modifications, whenever any of the foregoing are executed, but does not include swap agreements (as defined in 11 U.S.G, § 101, as in effect from time to time). Obligations. The terrh "Obligations", as used in this Note and the other Loan Documents, refers to any and all indebtedness and other obligations under this Note, all other obligations under any other Loan Document(s), and all obligations under any swap agreements (as defined in 11 tl.S_C. § 101, as in effect from time to time) between Borrower and Bank, or its affiliates, whenever executed. Certain Other Terms. All tarrns that are used but not otherwise defined in any of the Loan Documents shall have the definitions provided in the uniform Commercial Code_ LATE CHARGE. if any payments are not timely made, Borrower shall also pay to Bank a late charge equal to 5% of each payment past due for 10 or more days. This [ate charge shall not apply to payments due at maturity or by acceleration hereof, unless such late payment is in an amount not greater than the highest periodic payment due hereunder. Acceptance by Bank of any late payment without an accompanying late charge shall not be deemed a waiver of Bank's right to collect such I-ate charge or to collect a late charge for any subsequent late payment received. If this Note is secured by o%Aner_occupied residential reel property located outside the state in which the office of Bank first shown above is located, the late charge laws of the state where the real property is located shall apply to this Note and the late charge shall be the highest amount allowable under such laws. If no amount is stated thereunder, the late charge shall be 5% of eaoh payment past due for 10 or rnore!days, 53MW fRw 210) Page 2 Note dx . -) r' ,._.._F B_ r;;, ?-); .?P1,?1_ q'- MANAGEMENT P, i ATTORNEYS' FEES AND OTHER COLLECTION COS'T'S, Borrower Shalt pay all of bank's reasonable expenses actually incurred to enforce or collect any of the Obligations including, without limitation, reasonable arbitration, paralegals', attorneys' and experts' fees and expenses, whether incurred without the commencement of a suit, in any trial, arbitration, or administrative proceeding, or in any appellate or bankruptcy proceeding. USURY.. rf at any time the effective interest rate under this Note would, but for this maximum lawful rate, the effective interest rate under this Note shall be the maximum awful rate, and exceed the amount rerr imd by Bank in excess of such rate shall be applied to principal and then to fees and expenses, or, if no such amounts are owing, returned to Borrower. DEFAULT. If any of the following occurs, a default (" Defaute) under this Mote shall exist: Nonpayment; Nonperfvrmarice. The failure of timer Note or any other Loan Documents. Fad ?? or pe?rrnance of the Obligations or Default under this made In the Loan Documents or furnished Bankonnec?tiorranty or n w th the Ploa @vidoenced byothla Note proves materially false, or if of a continuing nature, becomes materially false. Cross Default At Bank's option, any default in payment or performance of any obligation under any other loans, contracts or r agreements ,of Borrower, any Subsidiary or Affiliate of Borrower, any general partner of or the holder(s) of the majority ownership interacts of Borrower with Bank or its affiliates ("Affiliate" shall have the meaning as defined in 11 U.S.C. § 101, as in offset from time to time, except that the term "Borrower" shall be substituted for the term 'Debtor' therein: Subsidiary" shall mean any business in which Borrower holds, directly or indirectly, a controlling interest). Cessation; Bankruptcy. The death of, appointment of a guardian for, dissolution of, termination of existence of. loss of good standing status by, appointment of a receiver for, assignment for the benefit of creditors of, or commencement of any bankruptcy or insolvency proceeding by or against Borrower, its Subsidiaries or Affiliates, if any, or any general partner of or the holder(s) of the majority ownership interests of Borrower, or any party to the Loan Documents. Material Capital Structure or Business Alteration. Without prior written consent of Bank, (I) a material alteration in the kind or type of Borrower's business or that of Borrower's Subsidiaries or Affiliates, if any; (ii) the sale of substantially all of the business or assets of Borrower, any of Borrower's Subsidiaries or Affiliates or any guarantor, or a material portion (10% or more) of such business or assets if such a sale is outside the ordinary course of business of Borrower, or any of Borrower's Subsidiaries of Affiliates or any guarantor, or more than 50% of the outstanding stook or voting power of or in any such entity in a single transaction or a series of transactions; (iii) the acquisition of substantially all of the business or assets or more than 60% of the outstanding stock or voting power of any other entity; or (iv) should any Borrower or any of Borrower's Subsidiaries or Affiliates or any guarantor enter into any merger or consWidation. Material Adverse Change. Bank determines in good faith, in its sole discretion, that the prospects for payment or performance of the Obligations are impaired ar there has occurred a material adverse change in the business or prospects of Borrower, financial or otherwise. REMEDIES UPON DEFAULT. If a Default occurs under this Note or any Loan Documents, Bank may at any time therwfter, fake the following actions. Bank Lion. Foreclose its security Jnteregt or lien against Borrower's accounts without notice. Acceleration Upon Default. Accelerate the maturity of this Note and, at Sank's option, any or all other Obligations, other than Obligations under any swap agreements (as defined In 11 U.S.C. § 101, as In effect from time to time) between Borrower and Bank, or its affiliates, which shall tie due in accordance with and governed by the provisions of said swap agreements; whereupon this !Vote and the acoelerated Obligations shall be immediately due and payable; provided, however, if the Default is based upon a bankruptcy or insolvency proceeding commenced b or Borrower or any guarantor or endorser of this Note, all Obligations (o(her than Obligations under any swap agreement as referenced above) shall automatically and immediately be due and payable. Cumulative. Exercise any rights and remedies as provided under the Note and other Loan Documents, or as provided by law or equity. FINANCIAL AND OTHER INPORMATION. Borrower shall deriver to Bank such information as Bank may reasonably request from time to time, including without limitation, financial statements and Information pertaining to Borrower's (nancial ogndition. Such information shall be true, complete, and accurate. 53.5060 IRN 210) Page 3 MMe doc N0. j6? F'. c CONFESSION OF JUDGMENT- THE FOLLOWING PARAGRAPH SETS FORTH A POWER OF AUTHORITY FOR ANY ATTORNEY TO CONFESS JUDGMENT AGAINST BORROWER, IN GRANTING THIS WARRANT OF ATTORNEY TO CONFESS JUDGMENT AGAINST BORROWER, THE BORROWER, FOLLOWING CONSULTATION WITH {OR DECISION NOT TO CONSULT) SEPARATE COUNSEL FOR BORROWER ANU WrM KNOWLEDGE OF THE LEGAL EFFECT HEREOF, HEREBY 17 KNOWINGLY, INTENTIONALLY, VOLUNTARILY, INTELUGENTLY AND UNCONDITIONALLY WAIVES ANY AND ALL RIGHTS THE BORROWER HAS OR MAY HAVE TO PRIOR NOTICE AND AN OPPORTUNITY FOR HEARING UNDER THE RESPECTIVE CONSTITUTIONS AND LAWS OF THE 4.y UNITED STATES OF AMERICA, COMMONWEALTH OF PENNSYLVANIA, OR ELSEWHERE INCLUDING, WITHOUT LIMITATION, A HEARING PRIOR TO GARNISHMENT AND ATTACHMENT OF THE BORROWERS BANK ACCOUNT AND OTHER ASSETS. ]BORROWER ACKNOWLEDGES ?. AND UNDERSTANDS THAT BY ENTERING INTO THIS NOTE CONTAINING A CONPE-SSION OF JUDGMENT CLAUSE THAT BORROWER 15 VOLUNTARILY, INTELLIGENTLY AND KNOWINGLY LAI; GIVING UP ANY AND ALL RIGHTS, INCLUDING CONSTITLMONAL RIGHM THAT HAS OR MAY HAVE TO NOTICE AND A HEARING BEFORE JUDGMENT CAN BE BORROWER s ? AGAiNt`I' BORROWER AND BEFORE LIMITATION, ITS BANK ACCOUNTS, MAY THE G?ARRNISHED GA .S ASSETS, INCLUDINGPOM , ANDIO - ATTACHED, BORROWER UNAERSTANOS THAT ANY SUCH GARNISHMENT, L VY, EXECUTION ANDIOR ATTACHMENT SHALL. RENDER THE PROPERTY GARNISHED, LEVIED, EXECUTED UPON OR ATTACHED IMMEDIATELY UNAVAILABLE TO BORROWER, IT IS SPECIFICALLY ACKNOWLEDGED BY BORROWER THAT THE BANK HAS RELIED ON THIS WARRANT OF ATTORNEY AND THE RIGHTS WAlveD BY BORROWER HEREIN IN RECEIVING THIS NOTE AND AS AN INDUCEMENT TO GRANT FINANCIAL ACCOMMODATIONS TO THE BORROWER, If a Default ooours under this Note or any other Loan Documents, each Borrower hereby jointly and severally authorizes and empowers any attorney of any court of record or the prothonotary or clerk of any county in the Commonwealth of Pennsylvania, or in any jurisdiction where permitted by law or the clerk of any united States District Court, to appear for Borrower in any and all actions which may be brought hereunder and enter and confess judgment against the Borrower or any of them in favor of the Bank for such sums as are. due or may beeorog due hereunder or under any other Loan Documents, together with costs of suit and actual collection costs including, without limitation, reasonable attorneys' fees equal to 5% of the Obligations then due and owing but in no event less than $ oap,00, with orwithout declaration, without prior notice, without stay of execution and with release of all procedural en'ors and the right to issue executions forthwith- To the extent permitted by law, Borrower waives the right of inquisition on any real estate levied on, voluntarily condemns the same, authorizes the prothonotary, or Clerk to enter upon the writ of execution this voluntary condemnation and agrees that such real 'estate may be sold on a writ of execution; and also waives any relief from any appraisement, fty or exemption law of any state now in force or hereafter enart+ed. Borrower further waives the right to any notice and h execution, levy, attachment or other typo of enforcement of any jud9 the mr~nt obtaineatinged prior hereun n including, without (limitation, the right to be notified and heard der, prior execution upon and attachment of Borrower's bank accounts and other pro the ty. if a garnishment copy levy, Note verified by affidavit of any officer of the Bank shall have been filed in suG action, rt shall copy no bes necessary to file the original thereof as a warrant of attorney, any practice or usage to the contrary notwithstanding. T'ne authority herein granted to confess judgment shall riot be exhausted by any single exercise thereof, but shalt continue and may be exercised from time to time as often as the Bank shall rind it necessary and desirable and at all times until full payment of all amounts due hereunder and under any ether Loan Documents. The Bank may confess jurisdictions for all of any part of the Obligations arts g hereunderororr under any other Loa Docur ents Iffere to which Borrower is a party without r than one rower is for tt . egg to whether judgment has theretofore been confessed on more same Obligations. In the event that any judgment confessed against the Borrower is stricken or opened upon application by or on behalf of Borrower or any obligor fora rea the Bunk is hereby authorized and empowered to again appear for and confess ud nt ant Borrower for any part or all of the Obrigations owing under this Note and/or for any othermb hoes, as herein provided. ?'?? tRev :3.0) Page 4 Wk+doc I? L :Y C iYIA'? G'FMENT >?..__ N0. iE3 F', WAIVERS AND AMENDMENTS. No waivers, amendments or modifications of this Note and other Loan Docaments shall be valid unless in writing and signed by an officer of Bank No waiver by Bank of any Default shall operate as a waiver of any other Default or the same Default on a future occasion. Neither the faffure nor any delay on the part of Bank in exercising any right, power, or remedy under this Note and other Loan Documents shall operate as a waiver thereof, nor shall a single or partial exemise thereof weedude any otter or further exercise thereof or the exercise of any other right, power or remedy. Except to the extent otherwise provided by the Loan Doouments or prohibited by law, each Borrower and each other person liable under this Note waives presentment, protest, notice of dishonor, demand for payment, notice of intention to accelerate maturity, notice of acceleration of maturity, notice of sate and all other notices of any kind. Further, each agrees that Bank may (i) extend, modify or renew this Mote or make a novation of the loan evidenced by this Note, and/or ((i) grant releases, compromises or indulgences with respect to any collateral securing this Note, or with respect to any Borrower or other person liable under this Note or any other Loan Doournents all without notice to or consent of each Borrower and other such person, and without affecting the liability of each Borrower and other such person, provided. Bank may not extend, modify or renew this Note or make a novation of the loan evidenced by this Note without the consent of the Borrower, or if there is more than one Borrower, without the consent of at least one Borrower; and further provided, if there is more than one Borrower, Bank may not enter into a modification of this Note which increases the burdens of a Borrower without the consent of that Borrower. MISCELLANEOUS PROVISIONS, Assignment. This Note and the other Loan Documents shall inure to the benefit of and be binding upon the panties and their respective heirs, legal representatives, suocessors and assigns. Bank's interests in and rights under this Note and the other Loan Documents are freely assignable, in whole or in part, by Bank. In addition, nothing in this Note or any of the other Loan Documents shall prohibit Bank from pledging or assigning this Note or any of the other Loan Documents or any interest therein to any Federal Reserve Bank. Borrower shall not assign its rights and interest hereunder without the prior written consent of Bank, and any attempt by Borrower to assign without Bank's prior written consent is null and void. Any assignment shall not release Borrooftr from the Obligations. Applicable L w, Conflict Between Documents. This Note and, unless otherwise provided in any other Loan Document, the other Loan Documents shall be governed by and construed under the laws of the state named in Banks address on the first page hereof without regard to that state's conflict of laws principles. If the terms of this Note should conflict with the terms of any loan agreement or any commitment letter that survives closing, the terms of this Note shall control. Borrowers Acoounts. Except as prohibited by law. Borrower gram Bank a security interest in all of Borrowers accounts with Bank and any of its affiliates. Swap Agreements. All swap agreements (as defined in 11 U.S_C. § 101, as in effect from time to time), if any, between Borrower and Bank or its affiliates are independent agreements governed by the written provisions of said swap agreements, which will remain in full force and effect, unaffected by any repayment, prepayment, acceleration, reduction, increase or change in the terms of this Note, except as otherwise expressly provided in said written swap agreements, and any payoff statement from Bank relating to this Note shall not apply to said swap agreements except as otherwise expressly provided in such payoff statement. Jurisdict)on. Borrower irrevocably agrees to non-exclueive personal jurisdiction in the state named in Bank's address on the first SeverabUity. If any provision of this Note or of the other Loan Documents shall be prohibited or invalid under applicable law, such provision shall be ineffective but only to the extent of such prohibition or invalidity, without invalidating the remainder of such provision or the remaining provisions of this Note or other such document. Notices. Any notices to Borrower shall be sufficiently given, if in writing and mailed or delivered to the Borrower's address shown above or such other address as provided hereunder, and to Bank, if in writing and mailed or delivered to Wachovia Bank, National Association, Mail Code VA7628, P. O. Box 13327, Roanoke. VA 24040 or Wachovia Bank, National Association, Mail Code VA7626, 1 o South Jefferson Street, Roanoke, VA 24011 or such other address as Bank m writing from time to time. Notices to Bank must include the mail code. In the event that Borrower changes Borrower's address at an time may specify in to promptly give written notice of said change oothe dddate the ress by rreg stems or ce? Fed mail, return receipt requested, all charges prepaid. Plurat, Captions. All references in the Loan Documents to Borrower, guarantor, person, document or other nouns of reference mean both the singular and plural form, as the 53MM (R- za 0r Page 5 Ndt doo n,?ryr IA iy A (.1 EVENT N0.7? F, Iii ?i case may be. and the tern "person" shall mean any individual. person or entity. Tice captions contained in the Loan Documents are inserted for convenience only and shall Interpretation of the Loan Documents. Advances. Bank may, in its sole disomtion, make other advances which shall be deemed to be advances under this not affect the meaning or Note may be exceeded as a result t Note, even though the shDted Principal amount of this Posting banking hours after 2:00 p.m. local time at the office of Of kBan first shown above shall to deemed received Payments -received during normal at the opening of the next banking day. Joint and Several ObIlgations. If there is more than one 13offtWer, each is jointly and severally obligated. Fees and Taxes. P docurnentary, intangible recordation andfor similar taxes on this transaction wwhethe assessseedPtiy at pay all closing or arising from time to time. LIMITATION ON LIABILITY; WAIVER OF PUNITIVE DAMAGE. EACH OF THE PARTIES HERETO, INCLUDING BANK BY ACCEPTANCE HEREOF, AGREES THAT IN ANY JUDICIAL, MEDIATION OR ARBITRATION PROCEEDING OR ANY CLAIM OR CONTROVERSY BETWEEN OR AMONG THEM THAT MAY ARISE OUT OF OR BE IN ANY WAY CONNECTED WITH THIS AGREEMENT, THE LOAN DOCUMENTS OR ANY OTHER AGREEMENT OR DOCUMENT BETWEEN OR AMONO THEM OR THE OBLATIONS EVIDENCED HEREBY OR RELATED HERETO, IN NO EVENT SHALL A.14Y PARTY HAVE A REMEDY OF, OR BE LIABLE TO THE OTHER FOR, (1) INDIRECT, SPECIAL OR CONSEQUENTIAL DAMAGES OR (2) PUNITIVE OR EXEMPLARY DAMAGES. EACH OF THE PARTIES HEREBY EXPRESSLY WAIVES ANY RIGHT OR CLAIM TO PUNITIVE OR EXEMPLARY DAMAGES THEY MAY CONNECTION WITH ANY SUCH PROCEEDING, CLAIM OR CONTROVERSY. WHIET THE E SAME FUTURE IN IS RESOLVED BY ARBITRATION, MEDIATION, JUDICIALLY OR OTHERWISE. Patriot Act Notice. To help fight the funding of terrorism and money laundering activities. Federal law requires all financial institutions to obtain, verify, and record information that identifies each person who opens an account. For purposes of this section, account shall be understood to include loan accounts- FINAL AGREEl1AENT. This Note and the other Loan Documents represent the final agreement be parties arrd may not be contradicted by evidence of prior, contemporaneous or sub t?err the a9teement•3 of the parties- 'There are no unwritten oral agreements between the parties. seclueht oral WAIVER OF JURY TRIAL, TO THE EXTENT PERMITTED BY APPLICABLE LAW, EACH OF BORROWER BY EXECUTION HEREOF AND BANK BY ACCEPTANCE HEREOF, KNOWINGLY, VOLUNTARILY AND INTENTIONALLY WAIVES ANY RIGHT EACH MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LITIGATION BASED ON, OR ARISING OUT OF, UNDER OR IN CONNECTION WITH THIS NOTE, THE LOAN DOCUMENTS OR ANY AGREEMENT CONTEMPLATED TO BE EXECUTED IN CONNECTION W[TI-l THIS NOTE, OR ANY GOURSE OF CONDUCT, COURSE OF DEALING, STATEMENTS (WHETHER VERBAL OR WRITTEN) OR ACTIONS OF ANY PARTY WITH RESPECT HERETO. THIS PROVISION IS A MATERIAL INDUCEMENT TO BANK TO ACCEPT THIS NOTE=. EACH OF THE PARTIES AGREES THAT THE TERMS HEREOF SHALL SUPERSEDE AND REPLACE ANY PRIOR AGREEMENT RELATED TO ARBITRATION OF DISPUTES BETWEEN THE PARTIES CONTAINED IN ANY LOAN DOCUMENT OR ANY OTHER DOCUMENT OR AGREEMENT HERETOFORE EXECUTED IN CONNECTION WITH RELATED TO OR BEING REPLACED, SUPPLEMENTED, EXTENDED OR MODIF(ED BY, THIS NOTE. 535M (psv23 0; Page 6 rroro Roe MA N' A !; F V F RI F?' --? 1 ,v,,A?fu'?( EVEN SCHEDULE A TO PROMISSORY NOTE 1290330 0 The, Note will be paid in the principal amounts plus accrued interest on the date 71 shown below: s as t" Payment Due Date Principal Payment Remai'ning p ? ?Ue _?, Outstanding {following scheduled principal ° Dec 15, 2005 0 00 payment} K Jan 17, 2006 . 10 222 22 1, 40,ooo.oa ix_ ~eb 15, 2006 , . 10 222 22 1,529,777.78 Mar 15, 2006 , . 10 222 22 11819,555.56 Apr 17, 2006 , . 10 222 22 1,809,333.33 May 15, 2006 , . 10 222 22 1,799,11'1.11 Jun 15, 2006 . , 10 222 22 1,788,888.89 Jul 17, 2006 , , 10 222 22 1,778,666.67 Aug 15, 2006 , . 10 222 22 1,768,444.44 Sep 15, 2006 , . 10 222 22 1,758,222.22 Oct 16 2006 , . 1,748,000.()0 , Nov 15 2006 10, 222.22 1,737,777-78 , Dec 15 2006 10,222.22 1,727,555.56 , Jan 16 2007 0,222.22 1, 717, 333.33 , Feb 15 2007 10,222.22 1,707,111.11 , Mar 15 2007 10, 222.22 1,696,888.89 , Apr 16 2007 10,222.22 1,686,666.67 , May 15 2007 10,222.22 1,676,444.44 , Jun 15 2007 10,222.22 1,666,222.22 , Jul 1-6 2007 10,222.22 1, 656, 000.00 , Aug 15 2007 10,222,22 1,645,777.78 , Sep 17 2007 10,222.22 1,635,555.56 , Oct 15 2007 10,222.22 1,625,333.33 , Nov 15 2007 10,222.22 1,615,111.11 , Dec 17 2007 10,.222.22 1,604,888.89 , Jan 15 2008 10,222.22 1,594,666.67 , Feb 15 20.08 1 Q,222.22 1,584,444.44 , 10,222.22 1,574,222.22 sa5oao{rte, ? p? Now Ct ,NLAN?GEN4ENT N(;. 7(.i P. 1 Mar 17, 2008 Apr 15 2008 10,222.22 1,564,000.00 , May 15 2008 10,222.22 1,553,777.78 , 10,222.22 1,643,555.56 1290330 ?d r Pay ment Due Date nnciMl Payment Remainin a Princepof Ue lDutstandina (following saiteduied principal ? Jun 16, 2008 Jul 15 2008 10,222.22 paY?nt) 4,533,333.33 , Aug 15 2008 10,222.22 1,523,111.11 , Sep 15 2008 10,222.22 1,512,888.89 , Oct 15 2008 10,222.22 1,502,666.67 , Nov 17 2008 10,222.22 1,492,444.44 , Dec 15 2008 10,222.22 1,482,222.22 , Jars 15 2009 10,222.22 1,472,000.00 , Feb 17 2009 10,222.22 1,461, 777.78 , Mar 46 2009 10,222,22 1,451,555.56 , Apr 15 2009 10,222.22 1,441,333.33 , May 15, 2009 40,222-22 1,431,111.11 Jun 15 2009 10,222.22 1,420,888-89 , Jul 15 ZOOS 10,222.22 1,470,e66.67 , Aug 17 2009 1 0,222.22 1,400,444.44 , Sep 15 20N 10,222.22 1,390,222.22 , Oct 15 2009 10,222.22 1,380,000.00 , Nov 16 2009 10,222.22 1,369,777.78 , Dec 15 2009 10,222.22 1,359,555.56 , Jan 15, 2010 10,222.22 1,349,333,33 Feb 16 2010 10,222.22 1,339,'111.11 , Mar 15 2010 10,222.22 1,328,888.89 , Apr 15 2010 10,222.22 1,318,666.67 , May 17 2010 10,222.22 1,308,444.44 , Jun 15 2010 10,222.22 1,298,222.22 , 10,222.22 1,28x,000.00 G E hv! E M N0. a .R Jul-15,2010 Aug 16, 2010 Sep 15, 2010 Got 15, 2010 Nov 15, 2010 Pa x men?? dee 15, 2010 10,222.22 10,222.22 10,222,22 10,222.22 10,222.22 Princi at Pa ent DUM 1,236,888.89 1,277,777.78 1,267,555.56 1,257,333-33 1,247,111.11 1,236, 888.89 1290330 Remaini Princi ai ou?tandina (following scheduled principal Payment) 0.00 ?xti;???N i PROMISSORY NOTE _V $2,880,000.00 &C- . ' S .2005 Nicholas Reinhart 450 Hartzog Valley Road fell Denver, Pennsylvania 17517 Denise G Reinhart 450 Hertzog Valley Road Denver, Pennsylvania 17517 (Individually and collectively, "Borrower") - Wachovia Bank, National Association Philadelphia, Pennsylvania 19109 (Hereinafter referred to as "Bank") Borrower promises to pay to the order of Bank, in lawful money of the United States of America, at its office indicated above or wherever else Bank may specify, the sum of Two Million, Eight Hundred Eighty Thousand and No/100 Dollars ($2,880,000.00) or such sum as may be advanced and outstanding from time to time, with interest on the unpaid principal balance at the rate and on the terms provided in this Promissory Note (including all renewals, extensions or modifications hereof, this "Note'). USE OF PROCEEDS. Borrower shall use the proceeds of the loan(s) evidenced by this Note for the commercial purposes of Borrower, as follows: Refinance existing debt with Lehman and create liquidity to fund an investment account. SECURITY. BPC Partners, a Pennsylvania partnership has granted Bank a security interest in the collateral described in the Loan Documents, including, but not limited to, real and personal property collateral described in that certain security instrument of even date herewith. INTEREST RATE. Interest shall accrue on the unpaid principal balance of this Note during each Interest Period from the date hereof at a rate per annum equal to 1-month LIBOR plus 1.7% ("Interest Rate"). "Interest Period" means each period commencing on and including the date an interest payment is due as provided in the Repayment Terms paragraph and ending on but excluding the date the next interest payment is due, with the first interest period commencing on the date of closing. Upon determination by Bank of the Interest Rate for any Interest Period, such Interest Rate shall remain in effect for the entire Interest Period until redetermined for the next successive Interest Period. "LIBOR" is the rate for U.S. dollar deposits with a maturity equal to the number of months specified above, as reported on Telerate page 3750 as of 11:00 a.m., London time, on the second London business day before the relevant Interest Period begins (or if not so reported, then as determined by Bank from another recognized source or interbank quotation). INDEMNIFICATION. Borrower shall indemnify Bank against Bank's loss or expense as a consequence of (a) Borrower's failure to make any payment when due under this Note, (b) any payment, prepayment or conversion of any loan on a day other than the last day of the Interest Period, or (c) any failure to make a borrowing or conversion after giving notice thereof ("Indemnified Loss or Expense"). The amount of such Indemnified Loss or Expense shall be determined by Bank based upon the assumption that Bank funded 100% of that portion of the loan in the London interbank market. (RwM) PC1415568XXXX001 CDCNOTEXXX N,,,,,CNOW z? DEFAULT RATE. In addition to all other rights contained in this Note, if a Default (as defined herein) occurs and as long as a Default continues, all outstanding Obligations, other than Obligations under any swap agreements (as defined in 11 U.S.C. § 101, as in effect from time to time) between Borrower and Bank or its affiliates, shall bear interest at the Interest Rate plus 3% ("Default Rate"). The Default Rate shall also apply from acceleration until the Obligations or any judgment thereon Is paid in full. INTEREST AND FEE(S) COMPUTATION (ACTUAL/360). Interest and fees, if any, shall be computed on the basis of a 360-day year for the actual number of days in the applicable period ("ActuaV360 Computation"). The Actual/360 Computation determines the annual effective yield by taking the stated (nominal) rate for a year's period and then dividing said rate by 360 to determine the daily periodic rate to be applied for each day in the applicable period. Application of the Actual/360 Computation produces an annualized effective rate exceeding the nominal rate. REPAYMENT TERMS. This Note shall be due and payable as set forth hereinbelow. From the date of this Note, accrued interest shall be payable in consecutive monthly payments payable on each of the dates listed in the column titled "Payment Due Date" in Schedule A attached hereto and made a part hereof ("Schedule A'). Principal shall be payable on each of the dates and in the amounts set forth in Schedule A. AN remaining principal and interest shall be due and payable on December 15, 2010. APPUCA71ON OF PAYMENTS. Monies received by Bank from any source for application toward payment of the Obligations shall be applied to accrued interest and then to principal. If a Default occurs, monies may be applied to the Obligations in any manner or order deemed appropriate by Bank. If any payment received by Bank under this Note or other Loan Documents is rescinded, avoided or for any reason returned by Bank because of any adverse claim or threatened action, the returned payment shall remain payable as an obligation of all persons liable under this Note or other Loan Documents as though such payment had not been made. DEFINITIONS. Loan Documents. The term "Loan Documents", as used in this Note and the other Loan Documents, refers to all documents executed in connection with or related to the loan evidenced by this Note and any prior notes which evidence all or any portion of the loan evidenced by this Note, and any letters of credit issued pursuant to any loan agreement to which this Note Is subject, any applications for such letters of credit and any other documents executed in connection therewith or related thereto, and may include, without limitation, a commitment letter that survives closing, a loan agreement, this Note, guaranty agreements, security agreements, security instruments, financing statements, mortgage instruments, any renewals or modifications, whenever any of the foregoing are executed, but does not include swap agreements (as defined in 11 U.S.C. § 101, as in effect from time to time). Obligations. The term "Obligations", as used in this Note and the other Loan Documents, refers to any and all indebtedness and other obligations under this Note, all other obligations under any other Loan Document(s), and all obligations under any swap agreements (as defined in 11 U.S.C. § 101, as in effect from time to time) between Borrower and Bank, or its affiliates, whenever executed. Certain Other Terms. All terms that are used but not otherwise defined in any of the Loan Documents shall have the definitions provided in the Uniform Commercial Code. LATE CHARGE. If any payments are not timely made, Borrower shall also pay to Bank a late charge equal to 5% of each payment past due for 10 or more days. This late charge shall not apply to payments due at maturity or by acceleration hereof, unless such late payment is in an amount not greater than the highest periodic payment due hereunder. Acceptance by Bank of any late payment without an accompanying late charge shall not be deemed a waiver of Bank's right to collect such late charge or to collect a late charge for any subsequent late payment received. If this Note is secured by owner-occupied residential real property located outside the state in which the office of Bank first shown above is located, the late charge laws of the state where the real property is 535090 (Rev 23.0) Page 2 NQW00c located shall apply to this Note and the late charge shall be the highest amount allowable under such laws. If no amount is stated thereunder, the late charge shall be 5% of each payment past due for 10 or more days. ATTORNEYS' FEES AND OTHER COLLECTION COSTS. Borrower shall pay all of Bank's reasonable expenses actually incurred to enforce or collect any of the Obligations including, without limitation, reasonable arbitration, paralegals', attorneys' and experts' fees and expenses, whether Incurred without the commencement of a suit, in any trial, arbitration, or administrative proceeding, or in any appellate or bankruptcy proceeding. USURY. If at any time the effective interest rate under this Note would, but for this paragraph, exceed the maximum lawful rate, the effective interest rate under this Note shall be the maximum lawful rate, and any amount received by Bank in excess of such rate shall be applied to principal and then to fees and expenses, or, if no such amounts are owing, returned to Borrower. DEFAULT. If any of the following occurs, a default ("Default") under this Note shall exist: Nonpayment; Nonperformance. The failure of timely payment or performance of the Obligations or Default under this Note or any other Loan Documents. False Warranty. A warranty or representation made or deemed made in the Loan Documents or furnished Bank in connection with the loan evidenced by this Note proves materially false, or if of a continuing nature, becomes materially false. Cross Default At Bank's option, any default in payment or performance of any obligation under any other loans, contracts or agreements of Borrower, any Subsidiary or Affiliate of Borrower, any general partner of or the holder(s) of the majority ownership interests of Borrower with Bank or its affiliates ("Affiliate" shall have the meaning as defined in 11 U.S.C. § 101, as in effect from time to time, except that the term "Borrower" shall be substituted for the term "Debtor" therein; "Subsidiary" shall mean any business in which Borrower holds, directly or indirectly, a controlling interest). Cessation; Bankruptcy. The death of, appointment of a guardian for, dissolution of, termination of existence of, loss of good standing status by, appointment of a receiver for, assignment for the benefit of creditors of, or commencement of any bankruptcy or insolvency proceeding by or against Borrower, its Subsidiaries or Affiliates, if any, or any general partner of or the holder(s) of the majority ownership interests of Borrower, or any party to the Loan Documents. Material Business Alteration. Without prior written consent of Bank, a material alteration in the kind or type of Borrower's business. Material Adverse Change. Bank determines in good faith, in its sole discretion, that the prospects for payment or performance of the Obligations are impaired or there has occurred a material adverse change in the business or prospects of Borrower, financial or otherwise. REMEDIES UPON DEFAULT. If a Default occurs under this Note or any Loan Documents, Bank may at any time thereafter, take the following actions: Bank Lien. Foreclose its security interest or lien against Borrower's accounts without notice. Acceleration Upon Defau)L Accelerate the maturity of this Note and, at Bank's option, any or all other Obligations, other than Obligations under any swap agreements (as defined in 11 U.S.C. § 101, as in effect from time to time) between Borrower and Bank, or its affiliates, which shall be due in accordance witli and governed by the provisions of said swap agreements; whereupon this Note and the accelerated Obligations shall be immediately due and payable; provided, however, if the Default is based upon a bankruptcy or insolvency proceeding commenced by or against Borrower or any guarantor or endorser of this Note, all Obligations (other than Obligations under any swap agreement as referenced above) shall automatically and immediately be due and payable. Cumulative. Exercise any rights and remedies as provided under the Note and other Loan Documents, or as provided by law or equity. PERSONAL FINANCIAL STATEMENTS. Each Borrower who is an individual shall deliver to Bank annually, within thirteen months of the previous statement date on file with Bank, Borrowers financial statement Said financial statement shall disclose all of Borrowers assets, liabilities, net worth, income and contingent liabilities, all in reasonable detail and acceptable to Bank and submitted on a form to be provided by Bank or on such other form acceptable to Bank, signed by Borrower and certified by Borrower to Bank to be true, correct and complete. 53WW (Rev 23.0) Pape 3 Notkdoc TAX RETURNS. Borrower shall deliver to Bank, within 30 days of filing, complete copies of federal and state tax returns, as applicable, together with all schedules thereto, each of which shall be signed and certified by Borrower to be true and complete copies of such returns. In the event an extension is filed, Borrower shall deliver a copy of the extension within 30 days of filing. FINANCIAL AND OTHER INFORMATION. Borrower shall deliver to Bank such information as Bank may s reasonably request from time to time, including without limitation, financial statements and information pertaining to Borrower's financial condition. Such information shall be true, complete, and accurate. CONFESSION OF JUDGMENT. THE FOLLOWING PARAGRAPH SETS FORTH A POWER OF AUTHORITY FOR ANY ATTORNEY TO CONFESS JUDGMENT AGAINST BORROWER. IN F GRANTING THIS WARRANT OF ATTORNEY TO CONFESS JUDGMENT AGAINST BORROWER, THE BORROWER, FOLLOWING CONSULTATION WITH (OR DECISION NOT TO CONSULT) SEPARATE COUNSEL FOR BORROWER AND WITH KNOWLEDGE OF THE LEGAL EFFECT HEREOF, HEREBY KNOWINGLY, INTENTIONALLY, VOLUNTARILY, INTELLIGENTLY AND UNCONDITIONALLY WANES t" ANY AND ALL RIGHTS THE BORROWER HAS OR MAY HAVE TO PRIOR NOTICE AND AN OPPORTUNITY FOR HEARING UNDER THE RESPECTIVE CONSTITUTIONS AND LAWS OF THE UNITED STATES OF AMERICA, COMMONWEALTH OF PENNSYLVANIA, OR ELSEWHERE INCLUDING, WITHOUT LIMITATION, A HEARING PRIOR TO GARNISHMENT AND ATTACHMENT OF THE BORROWER'S BANK ACCOUNT AND OTHER ASSETS. BORROWER ACKNOWLEDGES AND UNDERSTANDS THAT BY ENTERING INTO THIS NOTE CONTAINING A CONFESSION OF JUDGMENT CLAUSE THAT BORROWER IS VOLUNTARILY, INTELLIGENTLY AND KNOWINGLY GIVING UP ANY AND ALL RIGHTS. INCLUDING CONSTITUTIONAL RIGHTS, THAT BORROWER HAS OR MAY HAVE TO NOTICE AND A HEARING BEFORE JUDGMENT CAN BE ENTERED AGAINST BORROWER AND BEFORE THE BORROWER'S ASSETS, INCLUDING, WITHOUT LIMITATION, ITS BANK ACCOUNTS, MAY BE GARNISHED, LEVIED, EXECUTED UPON AND/OR ATTACHED. BORROWER UNDERSTANDS THAT ANY SUCH GARNISHMENT, LEVY, EXECUTION AND/OR ATTACHMENT SHALL RENDER THE PROPERTY GARNISHED, LEVIED, EXECUTED UPON OR ATTACHED IMMEDIATELY UNAVAILABLE TO BORROWER. IT IS SPECIFICALLY ACKNOWLEDGED BY BORROWER THAT THE BANK HAS RELIED ON THIS WARRANT OF ATTORNEY AND THE RIGHTS WAIVED BY BORROWER HEREIN IN RECEIVING THIS NOTE AND AS AN INDUCEMENT TO GRANT FINANCIAL ACCOMMODATIONS TO THE BORROWER. If a Default occurs under this Note or any other Loan Documerrts, each Borrower hereby jointly and severally authorizes and empowers any attorney of any court of record or the prothonotary or clerk of any county in the Commonwealth of Pennsylvania, or in any jurisdiction where permitted by law or the dark of any United States District Court, to appear for Borrower in any and all actions which may be brought hereunder and enter and confess judgment against the Borrower or any of them in favor of the Bank for such sums as are due or may become due hereunder or under any other Loan Documents, together with costs of suit and actual collection costs including, without limitation, reasonable attorneys' fees equal to 5% of the Obligations then due and owing but in no event less than $5,000.00, with or without declaration, without prior notice, without stay of execution and with release of all procedural errors and the right to issue executions forthwith. To the extent permitted by law, Borrower waives the right of inquisition on any real estate levied on, voluntarily condemns the same, authorizes the prothonotary or clerk to enter upon the writ of execution this voluntary condemnation and agrees that such real estate may be sold on a writ of execution; and also waives any relief from any appraisement, stay or exemption law of any state now in force or hereafter enacted. Borrower further waives the right to any notice and hearing prior to the execution, levy, attachment or other type of enforcement of any judgment obtained hereunder, Including, without limitation, the right to be notified and heard prior to the garnishment, levy, execution upon and attachment of Borrower's bank accounts and other property. If a copy of this Note verified by affidavit of any officer of the Bank shall have been filed in such action, it shall not be necessary to file the original thereof as a warrant of attorney, any practice or usage to the contrary notwithstanding. The authority herein granted to confess judgment shall not be exhausted by any single exercise thereof, but shall continue and may be exercised from time to time as often as the Bank shall find it necessary and desirable and at all times until full payment of all amounts due hereunder and under any other Loan Documents. The Bank may confess one or more judgments in the same or different 539080 (law 23.0) Page 4 NotaGOc i jurisdictions for all or any part of the Obligations arising hereunder or under any other Loan Documents to which Borrower is a party, without regard to whether judgment has theretofore been confessed on more than one occasion for the same Obligations. In the event that any judgment confessed against the Borrower is stricken or opened upon application by or on behalf of Borrower or any obligor for any reason, the Bank is hereby authorized and empowered to again appear for and confess judgment against 71 Borrower for any part or all of the Obligations owing under this Note and/or for any other liabilities, as herein provided. WAIVERS AND AMENDMENTS. No waivers, amendments or modifications of this Note and other Loan Documents shall be valid unless in writing and signed by an officer of Bank. No waiver by Bank of any Default shall operate as a waiver of any other Default or the same Default on a future occasion. Neither the failure nor any delay on the part of Bank in exercising any right, power, or remedy under this Note and other Loan Documents shall operate as a waiver thereof, nor shall a single or partial exercise thereof preclude any other or further exercise thereof or the exercise of any other right, power or remedy. Except to the extent otherwise provided by the Loan Documents or prohibited by law, each Borrower and -Y; each other person liable under this Note waives presentment, protest, notice of dishonor, demand for payment, notice of intention to accelerate maturity, notice of acceleration of maturity, notice of sale and all other notices of any kind. Further, each agrees that Bank may (i) extend, modify or renew this Note or make a novation of the loan evidenced by this Note, and/or (ii) grant releases, compromises or indulgences with respect to any collateral securing this Note, or with respect to any Borrower or other person liable under this Note or any other Loan Documents, all without notice to or consent of each Borrower and other such person, and without affecting the liability of each Borrower and other such person; provided, Bank may not extend, modify or renew this Note or make a novation of the loan evidenced by this Note without the consent of the Borrower, or if there is more than one Borrower, without the consent of at least one Borrower, and further provided, if there is more than one Borrower, Bank may not enter into a modification of this Note which increases the burdens of a Borrower without the consent of that Borrower. MISCELLANEOUS PROVISIONS. Assignment. This Note and the other Loan Documents shall inure to the benefit of and be binding upon the parties and their respective heirs, legal representatives, successors and assigns. Bank's interests in and rights under this Note and the other Loan Documents are freely assignable, in whole or in part, by Bank. In addition, nothing in this Note or any of the other Loan Documents shall prohibit Bank from pledging or assigning this Note or any of the other Loan Documents or any interest therein to any Federal Reserve Bank. Borrower shall not assign its rights and interest hereunder without the prior written consent of Bank, and any attempt by Borrower to assign without Bank's prior written consent is null and void. Any assignment shall not release Borrower from the Obligations. Organization; Powers. Borrower represents that Borrower (I) is (a) an adult individual and is juLiuri • or (b) a corporation, general partnership, limited partnership, limited liability company or other legal entity, duly organized, validly existing and in good standing under the laws of its state of organization, and is authorized to do business in each other jurisdiction wherein its ownership of property or conduct of business legally requires such organization (it) has the power and authority to own its properties and assets and to carry on its business as now being conducted and as now contemplated; and (iii) has the power and authority to execute, deliver and perform, and by all necessary action has authorized the execution, delivery and performance of, all of its obligations under this Note and any other Loan Document to which it is a party. Compliance with Laws. Borrower represents that Borrower and any subsidiary and affiliate of Borrower and any guarantor are in compliance in all respects with all federal, state and local laws, rules and regulations applicable to its properties, operations, business, and finances, including, without limitation, any federal or state laws relating to liquor (including 18 U.S.C. § 3617, et seq.) or narcotics (including 21 U.S.C. § 801, et seq.) and/or any commercial crimes; all applicable federal, state and local laws and regulations Intended to protect the environment; and the Employee Retirement Income Security Act of 1974, as amended (" ERISA'), if applicable. None of Borrower, or any subsidiary or affiliate of Borrower or any guarantor is a Sanctioned Person or has any of its assets in a Sanctioned Country or does business in or with, or derives any of its operating income from investments in or transactions with, Sanctioned Persons or Sanctioned Countries in violation of economic sanctions administered by OFAC. The proceeds from the Loan will not be used to fund any operations in, 53WW (Rev rao) Page 5 Mftdoc finance any investments or activities in, or make any payments to, a Sanctioned Person or a Sanctioned Country. "OFAC" means the U.S. Department of the Treasury's Office of Foreign Assets Control. 'Sanctioned Country' means a country subject to a sanctions program identified on the list maintained by =1 OFAC and available at httpJ/www.treas.gov/officestenbu mentbkrjsencbons/, or as otherwise published from time to time. 'Sanctioned Person' means (L) a person named on the list of Specially T" Designated Nationals or Blocked Persons maintained by OFAC evafiable at http:/hvww.bus.gov/OMGWenforcemeWofardsdrV, or as otherwise published from time to tkne, or (ii) (A) an agency of the government of a Sanctioned Country, (B) an organization controlled by a Sanctioned Country, or (C) a person resident In a Sanctioned Country, to the extent subject to a sanctions program ` administered by OFAC. Applicable Law; Conflict Between Documents. This Note and, unless otherwise provided in any other Loan Document, the other Loan Documents shall be governed by and construed under the laws of the state named in Bank's address on the first page hereof without regard to that state's conflict of laws principles. If the terms of this Note should conflict with the terms of any loan agreement or any commitment letter that survives closing, the terms of this Note shall control. Borrowers Accounts. Except as prohibited by law, Borrower grants Bank a security interest In all of Borrower's accounts with Bank and any of its affiliates. Swap Agreements. All swap agreements (as defined in 11 U.S.C. § 101, as in effect from time to time), if any, between Borrower and Bank or its affiliates are independent agreements governed by the written provisions of said swap agreements, which will remain in full force and effect, unaffected by any repayment, prepayment, acceleration, reduction, increase or change in the terms of this Note, except as otherwise expressly provided in said written swap agreements, and any payoff statement from Bank relating to this Note shall not apply to said swap agreements except as otherwise expressly provided in such payoff statement. Jurisdktion. Borrower irrevocably agrees to non-exclusive personal jurisdiction in the state named in Bank's address on the first page hereof. Severability. If any provision of this Note or of the other Loan Documents shall be prohibited or invalid under applicable law, such provision shall be ineffective but only to the extent of such prohibition or invalidity, without invalidating the remainder of such provision or the remaining provisions of this Note or other such document. Notices. Any notices to Borrower shall be suffidentiy given, if in writing and mailed or delivered to the Borrower's address shown above or such other address as provided hereunder, and to Bank, if in writing and mailed or delivered to Wachovla Bank, National Association, Mail Code VA7628, P. 0. Box 13327, Roanoke, VA 24040 or Wachovia Bank, National Association, Mail Code VA7628, 10 South Jefferson Street, Roanoke, VA 24011 or such other address as Bank may specify in writing from time to time. Notices to Bank must include the mail code. In the event that Borrower changes Borrower's address at any time prior to the date the Obligations are paid in full, Borrower agrees to promptly give written notice of said change of address by registered or certified mail, return receipt requested, all charges prepaid. Plural; Captions. All references in the Loan Documents to Borrower, guarantor, person, document or other nouns of reference mean both the singular and plural form, as the case may be, and the term "person" shall mean any individual, person or entity. The captions contained In the Loan Documents are inserted for convenience only and shall not affect the meaning or interpretation of the Loan Documents. Advances. Bank may, in its sole discretion, make other advances which shall be deemed to be advances under this Note, even though the stated principal amount of this Note may be exceeded as a result thereof. Posting of Payments. All payments received during normal banking hours after 2.00 p.m. local time at the office of Bank first shown above shall be deemed received at the opening of the next banking day. Joint and Several Obligations. If there is more than one Borrower, each is jointly and severally obligated. Fees and Taxes. Borrower shall promptly pay all documentary, intangible recordation and/or similar taxes on this transaction whether assessed at dosing or arising from time to time. LIMITATION ON LIABILITY; WAIVER OF PUNITIVE DAMAGES. EACH OF THE PARTIES HERETO, INCLUDING BAW BY ACCEPTANCE HEREOF, AGREES THAT IN ANY JUDICIAL, MEDIATION OR ARBITRATION PROCEEDING OR ANY CLAIM OR CONTROVERSY BETWEEN OR AMONG THEM THAT MAY ARISE OUT OF OR BE IN ANY WAY CONNECTED WITH THIS AGREEMENT, THE LOAN DOCUMENTS OR ANY OTHER AGREEMENT OR DOCUMENT BETWEEN OR AMONG THEM OR THE OBLIGATIONS EVIDENCED HEREBY OR RELATED HERETO, IN NO EVENT SHALL ANY PARTY HAVE A REMEDY OF, OR BE LIABLE TO THE OTHER FOR, (1) INDIRECT, SPECIAL OR CONSEQUENTIAL DAMAGES OR (2) PUNITIVE OR EXEMPLARY DAMAGES. EACH OF THE PARTIES HEREBY EXPRESSLY WAIVES ANY RIGHT OR CLAIM TO PUNITIVE OR EXEMPLARY DAMAGES THEY MAY HAVE OR WHICH MAY ARISE IN THE FUTURE IN CONNECTION WITH ANY SUCH PROCEEDING, CLAIM OR CONTROVERSY, WHETHER 5MM (RW 21.0) Page 6 Notsaoc THE SAME IS RESOLVED BY ARBITRATION, MEDIATION, JUDICIALLY OR OTHERWISE. Patriot Act Notice. To help fight the funding of terrorism and money laundering activities, Federal lave, requires all financial institutions to obtain, verify, and record information that identifies each person who opens an account. For purposes of this section, account shall be understood to inckude loan accounts. FINAL AGREEMENT. This Note and the other Loan Documents represent 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 no unwritten oral agreements between the parties. WAIVER OF JURY TRIAL. TO THE EXTENT PERMITTED BY APPLICABLE LAW, EACH OF BORROWER BY EXECUTION HEREOF AND BANK BY ACCEPTANCE HEREOF, KNOWINGLY, VOLUNTARILY AND INTENTIONALLY WAIVES ANY RIGHT EACH MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LITIGATION BASED ON, OR ARISING OUT OF, UNDER OR IN CONNECTION WITH THIS NOTE, THE LOAN DOCUMENTS OR ANY AGREEMENT CONTEMPLATED TO BE EXECUTED IN CONNECTION WITH THIS NOTE, OR ANY COURSE OF CONDUCT, COURSE OF DEALING, STATEMENTS (WHETHER VERBAL OR WRITTEN) OR ACTIONS OF ANY PARTY WITH RESPECT HERETO. THIS PROVISION IS A MATERIAL INDUCEMENT TO BANK TO ACCEPT THIS NOTE. EACH OF THE PARTIES AGREES THAT THE TERMS HEREOF SHALL SUPERSEDE AND -= REPLACE ANY PRIOR AGREEMENT RELATED TO ARBITRATION OF DISPUTES BETWEEN THE PARTIES CONTAINED IN ANY LOAN DOCUMENT OR ANY OTHER DOCUMENT OR AGREEMENT HERETOFORE EXECUTED IN CONNECTION WITH, RELATED TO OR BEING REPLACED, SUPPLEMENTED, EXTENDED OR MODIFIED BY, THIS NOTE. IN WITNESS WHEREOF, Borrower, on the day and year first above written, has caused this Note to be executed under seal. (SEAL) Nicho s Reinha (SEAL) enlse G Reinhart Tracking P 31176$V72g4125M/new CAT - Deal * 613130 Facility ID 415566 53M(FAv23.o) Page 7 Nas.doc SCHEDULE A TO PROMISSORY NOTE IN THE ORIGINAL PRINCIPAL AMOUNT OF $2,880,000.00 Dated , 2005 The principal amount of the Note will be paid in the amounts and on the dates as shown below. Payment Due Date Principal Payment Remilini_ ng Principal Due 00tanding (following scheduled principal payment) Dec 15, 2005 0.00 2,880,000.00 Jan 17, 2006 7,803.55 2,872,196.45 Feb 15, 2006 10,012.51 2,862,183.94 Mar 15, 2006 10,605.36 2,851,578.58 Apr 17, 2006 7,979.93 2,843,598.65 May 15, 2006 10,703.22 2,832,895.43 Jun 15, 2006 9,161.36 2,823,734.07 Jul 17, 2006 8,683.75 2,815,050.32 Aug 15, 2006 10,324.16 2,804,726.16 Sep 15, 2006 9,325.58 2,795,400.58 Oct 16, 2006 9,379.94 2,786,020.64 Nov 15, 2006 9,958.55 2,776,062.09 Dec 15, 2006 10, 014.73 2, 766, 047.36 Jan 16, 2007 9,030.89 2,757,016.47 Feb 15, 2007 10,122.18 2, 746, 894.29 Mar 15, 2007 11, 212.43 2, 735, 681.86 Apr 16, 2007 9,213.62 2,726,468.24 May 15, 2007 10,807.25 2,715,660.99 Jun 15, 2007 9,844.80 2,705,816.19 Jul 16, 2007 9,902.19 2,695,914.00 Aug 15, 2007 10,466.90 2,685,447.10 Sep 17, 2007 9,010.91 2,676,436.19 Oct 15, 2007 11,583.43 2,664,852.76 Nov 15, 2007 10,141.00 2,654,711.76 Dec 17, 2007 9,700.88 2,645,010.88 Jan 15, 2008 11,251.49 2,633,759.39 Feb 15, 2008 10,322.26 2,623,437.13 5 'O,Rsv 29.E NoWdoc LJ r; f? - i- Mar 17, 2008 10,382.44 2,613,054.69 Apr 15, 2008 11,425.77 2,601,628.92 May 15, 2008 10,998.83 2,590,630.09 1290163 Payment Due Date Principal Payment Remainina Principal Due Outstanding (following scheduled principal paYrneM) Jun 16, 2008 10,086.51 2,580,543.58 Jul 15, 2008 11,603.07 2,568,940.51 Aug 15, 2008 10,700.14 2,558,240.37 Sep 15, 2008 10,762.52 2,547,477.85 Oct 15, 2008 11, 304.33 2,536,173.52 Nov 17, 2008 9,937.28 2,526,236.24 Dec 15, 2008 12,374.31 2,513,861.93 Jan 15, 2009 11,021.23 2,502,840.70 Feb 17, 2009 10,144.14 2,492,696.56 Mar 16, 2009 13,019.68 2,479,676.88 Apr 15, 2009 11,686.84 2,467,990.04 May 15, 2009 11,752.77 2,456,237.27 Jun 15, 2009 11,357.17 2,444,880.10 Jul 15, 2009 11,883.15 2,432,996.95 Aug 17, 2009 10,577.58 2,422,419.37 Sep 15, 2009 12,465.42 2,409,953.95 Oct 15, 2009 12,080.19 2,397,873.76 Nov 16, 2009 11,246.48 2,386,627.28 Dec 15, 2009 12,660.61 2,373,966.67 Jan 15, 2010 11,836.78 2,362,129.89 Feb 16, 2010 11,461.58 2,350,668.31 Mar 15, 2010 13,740.83 2,336,927.48 Apr 15, 2010 12, 052.71 2, 324, 874.77 May 17, 2010 11,685.77 2,313,189.00 Jun 15, 2010 13,061.12 2,300,127.88 Z Exwj 12156706645 T-862 P.002l004 F-638 Jul-26-200T 02:51Pin From-SPECIAL ASSETS ., PA12a6 . 123 soutn Broad strut 7tn Fioor Pn isceipnia. PA 19109 July 7, 2007 By OVERNIGI?T tiD ULAR MAIL Dunphy Nissan, Inc- Autohaus Acquisition, Inc. Reinhart Federal, Inc. Reinhart Acquisition, lne. R.A.P. Industries, Inc. BFC Partners SNL Trading, Inc. D, B&. E Enterprises, LLC Mr. Nicholas Reinhart Mrs. )Denise Reinhart c/o Reinhart Acquisition, Inc. 620 North Reading Road Ephrata, Pennsylvania 17522 Attention: Nicholas Reinhart -VVA, GH0`V'r _ Re: Forbearance ?,groement (the ,'Forbearance Agreement") dated Marchan7, 2007 by and among Wachovia Bank, National Association (the Bank ), Dunphy R.A.P. Autohaus Acquisition, Inc., Reinhart Federal, Inc., Reinhart Acquisition, Nicholas Industries, Inc., BPC Partners, SNL Trading, D B& E Enterprises, Reinhart and Demise Reinhart (individually, a "Borrower" and collectively, the "Borrowers") Dear Mr. Reinhart: Reference is made to the Forbearance Agreement. Capitalized terms not otherwise the eement- defined herein shall have the meanings ascribed to such terms in the Forbearance Agr result An )went of Default has occurred Loansrinnfull wn or bcfaae June 30,0 007 (the =der the Borrowers' failure to repay the Operating Company "Specified Event of Default"). The Bank hereby reserves and preserves all of its other rights an remedies under the Loan Documents and applicable law, including without -limitation, the right to charge interest on the Obligations at the ersultaraihe under fees and expenses, including but p Y the Bank hereby makes demand that Borrow not limited to attorneys' fees and expenses. Attached is a copy of a legal fee invoice paid by the PHI.WI 001062.1 Jul-28-2007 02:51pe Froth-SPECIAL ASSETS 12156706645 T-962 P.003/004 F-636 be advised Bank Bank that must be reimbursed by the Borrowers. Bank's on se escollatera! moth torhof S$3,300, incurred fees and expenses for Mike RaY, the that which fees and expenses must be reirnb used by the Continue to reimburse the Bank fortsu?ch feeseTheees continue to accrue and the Borrowers m Bank does not waive the Specified Event letter any other Event of Default constitute or be deemed thaconstit may a occurred under the Loan Documents. waiver or modification of any of the terms, conditions, warranties, representations or covenants contained in the Loan Documents. ur counsel I also write to you in response nd the Juvleir?.viatt on.tletter to Bank's ?ounsel, Rae oSmith LLP- John Niattioni, which letter was forty Y In response to your letter: Harrisburg, FA - Sale of the ?.udi Franchise Please advise whether an agreement was reached after the scheduled July 3, 2007 meeting. To the extent agreement thBank knowawhn provide l$ ng on this transaction is con emplaced. Additionally, please se le Mechanicsburtr PA ale of 13.9 ac 6629 Car i e P,11- When we met last month, you advised the Bank that you had an agreement to sell this property, but that you could not share e agreement, nthe Bank can not meaningfully consider this transaction Bank with a copy of any s suggested at the last meeting, it would be helpful in its analysis of how to proceed. As the Bank if you would request from the proposed purchaser that you be allowed to share the agreement with the Bank (which should not be unexpected, as the Bank has a blanket rnortgage on the property). Ephrata. PA - ale of ttorv Ford please provide the Bank with a coped to Ford. agreement for the Victory Ford location, as well as a copy of the notice being pro Havertowv . PA Sale of Victory iylitsa ishi Please provide the Bank with a copy of the stock purchase agreement referenced in your letter. Additionally, please provide the Bank, with a copy of the approval received by Mr. Mogilyansky from Mitsubishi Motor Sales of America. Wholesale Financing pp 1001/Plan of tC inn You have requested that the Bank remove its on-site representative. For a number of reasons, the Bank will not do so. ivlost significantly, in the approximately one-year time period between the closing of the Bank's loans to the Borrowers roand my involvement in this e s allowed the Bank's posaion,toebecomeioutul collateral controls were in place an of-trust by approximately S2 million. In light of these past problems, in order for the Bank to - 2 - PMLLS-1091052.1 Jul-26-2007 02:544 From-SPECIAL ASSETS 12156706645 T-062 P.004/004 F-638 continue to lend, # a on-site collateral monitoring is an absolute necessity. Perhaps, had the Borrowers engaged a crisis manager, the Bank might have been ilthe ls necessary m ransitinging the collateral monitoring function to that crisis manager (provided controls had been put in place). But, as you decided that no crisis manager was necessary, that is not an alternative now. The Bank remains willing to consider a possible short-ternn extension of the forbearance period, subject to definitive commitments from the Borrowers to execute the transactions identified in your letter and to step down the availability under the Operating Company Loans. Please respond to me, in writing, on or before July 11, 2007 Sincerely, WACHON IA BANK, NATIONAL ASSOCIATION YL WWI it Name: ' i Title: cc: Matthew E. Tashman, Esquire (via telecopy) John Mattioni, Esquire (via telecopy and regular mail) - 3 - PFUIJ1k-108,092.1 c O NF` C U ?lj L?7 -n I r REED SMITH LLP By: Matthew E. Tashman, Esquire Identification No. 67036 Jennifer P. Knox, Esquire Identification No. 206298 2500 One Liberty Place 1650 Market Street Philadelphia, PA 19103-7396 (215) 851-8100 (2.15) 851-1420 (telecopy) WACHOVIA BANK, NATIONAL ASSOCIATION 123 South Broad Street Philadelphia, PA 19109, Plaintiff, VS. BPC Partners 4150 Chambers Hill Road Swatara, PA 17111, Defendant. COURT OF COMMON PLEAS CUMBERLAND COUNTY AFFIDAVIT OF NON-MILITARY SERVICE COMMONWEALTH OF PENNSYLVANIA SS. COUNTY OF PHILADELPHIA Patrick McGovern, being duly sworn according to law, deposes and says that he is a Senior Vice President of Wachovia Bank, National Association and that he is duly authorized to make this Affidavit on behalf of the Plaintiff; and that, to the best of his knowledge, information ! M and belief, the Defendant is not in the military service of the United States of America. Sworn and subscribed before me thi day of February, 20 tary Public COMMONWEALTH OF PENNSYLVANIA NOTARIAL SEAL Donna A. Deprinzio, Notary Public City of Philadelphia, Philadelphia County 2011 My commission cVm* May 22, *ack McGov Senior Vice President Wachovia Bank, National Association -2- ?? _ . ?.? ? ., ?? _ -., ra , ? f ?' ?.7 `_ r_ t.C3 l?;i :..:_? ` `7_. r ? f `? °-? REED SMITH LLP By: Matthew E. Tashman, Esquire Identification No. 67036 Jennifer P. Knox, Esquire Identification No. 206298 2500 One Liberty Place 1650 Market Street Philadelphia, PA 19103-7396 (215) 851-8100 (215) 851-1420 (telecopy) WACHOVIA BANK, NATIONAL COURT OF COMMON PLEAS ASSOCIATION CUMBERLAND COUNTY 123 South Broad Street Philadelphia, PA 19109, Plaintiff, VS. BPC Partners 4150 Chambers Hill Road Swatara, PA 17111, Defendant. CERTIFICATION OF ADDRESS Patrick McGovern, a Senior Vice President of Wachova Bank, National Association, certifies, to the best of his knowledge, information and belief, that the present address of the Plaintiff, Wachovia Bank, National. Association is 123 South Broad Street, Philadelphia, Pennsylvania 19109; and that, to the best of his knowledge, information and belief, the last known address of the Defendant is 4150 Chambers Hill Road, Swatara, Pennsylvania 17111. February`.?? 2008 Patrick McGov. Senior Vice President Wachova Bank, National Association (? ?? a,.7? r' - ?1 ? a r.? ?.., "Y ; .. r?, ',? . ? ? }"?, ? -t '^?.: -? "? r lv` REED SMITH LLP By: Matthew E. Tashman, Esquire Identification No. 67036 Jennifer P. Knox, Esquire Identification No. 206298 2500 One Liberty Place 1650 Market Street Philadelphia, PA 19103-7396 (215) 851-8100 (215) 851-1420 (telecopy) WACHOVIA BANK, NATIONAL ASSOCIATION ; 123 South Broad Street Philadelphia, PA 19109, Plaintiff, VS. BPC Partners 4150 Chambers Hill Road : Swatara, PA 17111, ; Defendant. COURT OF COMMON PLEAS CUMBERLAND COUNTY ENTRY OF APPEARANCE TO THE PROTHONOTARY: Please enter our appearance on behalf of the Plaintiff, Wachovia Bank, National Association, and enter judgment for damages in favor of Plaintiff and against the Defendant. REED SMITH LLP Dated: February Zg, 2008 By: //"?" atth w E. Tashman, Esquire Identification No. 67036 Jennifer P. Knox, Esquire Identification No. 206298 2500 One Liberty Place 1650 Market Street Philadelphia, PA 19103-7396 (215) 851-8100 (215) 851-1420 (telecopy) Attorneys for Wachovia Bank, National Association 2 ti _. ,.-. `?- ' c: ;? ;,? fl r-? :.y ?? -?'? - t ?3 ., , ,s} h, t _rr' `?C f y REED SMITH LLP By: Matthew E. Tashman, Esquire Identification No. 67036 Jennifer P. Knox, Esquire Identification No. 206298 2500 One Liberty Place 1650 Market Street Philadelphia, PA 19103-7396 (215) 851-8100 (215) 851-1420 (telecopy) WACHOVIA BANK, NATIONAL ASSOCIATION 123 South Broad Street Philadelphia, PA 19109, COURT OF COMMON PLEAS CUMBERLAND COUNTY Plaintiff, vs. BPC Partners 4150 Chambers Hill Road Swatara, PA 17111, Defendant. ENTRY OF APPEARANCE PRAECIPE FOR ASSESSMENT OF DAMAGES AND CONFESSION OF JUDGMENT TO THE PROTHONOTARY: Kindly enter our appearance for and on behalf of the Defendant above named. Pursuant to the authority contained in the Warrants of Attorney separately set forth in the Guaranty and Forbearance Agreement (each as defined in the Complaint), a true and correct copy of which are attached as Exhibits to the Complaint filed in this action, we hereby appear for the Defendant in this matter, BPC Partners, and confess judgment as authorized, in favor of the Plaintiff and against the Defendant, as follows: DAMAGES TO BE ASSESSED AS FOLLOWS: Guaranty Unpaid principal balance under the Guaranty as of February 28, 2008 Unpaid interest under the Guaranty as of February 28, 2008 Total amount due under the Guaranty as of February 28, 2008 (subject to additional interest and costs and attorneys' fees accruing thereafter) Forbearance Fees (due under Forbearance Agreement) Costs and attorneys' fees (not to exceed) TOTAL AMOUNT DUE ON ALL OF THE FOREGOING AS OF FEBRUARY 28, 2008 (SUBJECT TO ADDITIONAL INTEREST AND COSTS AND ATTORNEYS' FEES ACCRUING THEREAFTER) Dated: February , 2008 REED SMITH LLP $11,340,955.94 $250,000.00 $567,047.80 $12,158,002.94. By: Ma thew hman, Esquire Identification No. 67036 Jennifer P. Knox, Esquire Identification No. 206298 2500 One Liberty Place 1650 Market Street Philadelphia, PA 19103-7396 (215) 851-8100 (215) 851-1420 (telecopy) Attorneys for Wachovia Bank, National Association 2 $11,328,608.67 $12,347.27 4^x..1 C - rl f. !' C 7 C.3 r? REED SMITH LLP By: Matthew E. Tashman, Esquire Identification No. 67036 Jennifer P. Knox, Esquire Identification No. 206298 2500 One Liberty Place 1650 Market Street Philadelphia, PA 19103-7396 (215) 851-8100 (215) 851-1420 (telecopy) WACHOVIA BANK, NATIONAL ASSOCIATION 123 South Broad Street Philadelphia, PA 19109, COURT OF COMMON PLEAS CUMBERLAND COUNTY Plaintiff, VS. BPC Partners 4150 Chambers Hill Road Swatara, PA 17111, Defendant. NOTICE UNDER RULE 2958.1 OF JUDGMENT BY CONFESSION Notice of Defendant's Rights TO: BPC PARTNERS Pursuant to Rule 2958.1 of the Supreme Court of Pennsylvania, you are hereby notified that a judgment in the amount of $12,158,002.94 has been entered against you in the above- captioned proceeding and in favor of the Plaintiff without prior notice or hearing based on a confession of judgment contained in a written agreement or other paper allegedly signed by you. The Sheriff may take your money or other property to pay the judgment at any time after thirty (30) days after the date on which this notice is served on you. You may have legal rights to defeat the judgment or to prevent your money or property from being taken. YOU MUST FILE A PETITION SEEKING RELIEF FROM THE JUDGMENT AND PRESENT IT TO A JUDGE WITHIN THIRTY (30) DAYS AFTER THE DATE ON WHICH THIS NOTICE IS SERVED ON YOU OR YOU MAY LOSE YOUR RIGHTS. YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER OR CANNOT AFFORD ONE, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW TO FIND OUT WHERE YOU CAN GET LEGAL HELP. CUMBERLAND COUNTY BAR ASSOCIATION 32 South Bedford Street Carlisle, PA 17013 (717) 249 3166 (800) 990-9108 Dated and Served: February? r 2008 By Hand Delivery Respectfully submitted, REED SMITH LLP By: Nlatthev/ E. Tashm , Esquire Identification No. 67036 Jennifer P. Knox Identification No. 206298 2500 One Liberty Place 1650 Market Street Philadelphia, PA 19103-7396 (215) 851-8100 (215) 851-1420 (telecopy) Attorneys for Wachovia Bank, National Association 2 y ? =r C C ?-? ? .. f ;? ^Y°; -r Y _t"1 ? , s l i,,;J ? i\,? _ _ l.?-? '°Y.7 ;` _? ? r _? __ cr: T REED SMITH LLP By: Matthew E. Tashman, Esquire Identification No. 67036 Jennifer P. Knox, Esquire Identification No. 206298 2500 One Liberty Place 1650 Market Street Philadelphia, PA 19103-7396 (215) 851-8100 (215) 851-1420 (telecopy) WACHOVIA BANK, NATIONAL ASSOCIATION 123 South Broad Street ; Philadelphia, PA 19109, Plaintiff, VS. BPC Partners 4150 Chambers Hill Road Swatara, PA 17111, Defendant. COURT OF COMMON PLEAS CUMBERLAND COUNTY Docket No.: 08-1346 PRAECIPE TO WITHDRAW JUDGMENT WITHOUT PREJUDICE To the Prothonotary: Plaintiff, Wachovia Bank, National Association, hereby withdraws, without prejudice, the Entry of Judgment entered in above captioned action against the Defendant, BPC Partners and hereby voluntarily discontinues the above captioned action (without prejudice) pursuant to Pa. R. Civ. P. 229. t w Respectfully submitted, REED SMITH LLP By: Ma thew ashman, Esquire Jennifer P. Knox, Esquire REED SMITH LLP 2500 One Liberty Place 1650 Market Street Philadelphia, PA 19103 Attorneys for Plaintiff Wachovia Bank, National Association Dated: March (, 2008 x, p I to REED SMITH LLP By: Matthew E. Tashman, Esquire Identification No. 67036 Jennifer P. Knox, Esquire Identification No. 206298 2500 One Liberty Place 1650 Market Street Philadelphia, PA 19103-7396 (215) 851-8100 (215) 851-1420 (telecopy) WACHOVIA BANK, NATIONAL COURT OF COMMON PLEAS ASSOCIATION CUMBERLAND COUNTY 123 South Broad Street Philadelphia, PA 19109, Docket No.: 08-1346 Plaintiff, vs. BPC Partners 4150 Chambers Hill Road Swatara, PA 17111, Defendant. PRAECIPE TO SETTLE, DISCONTINUE AND END WITHOUT PREJUDICE TO THE PROTHONOTARY: Kindly mark the above-named action discontinued in accordance with Rule 229 of the Pennsylvania Rules of Civil Procedure. Respectfully submitted, REED SMITH LLP By: AJ&7_4 v Ma thew E. Tashman, Esquire Jennifer P. Knox, Esquire REED SMITH LLP 2500 One Liberty Place 1650 Market Street Philadelphia, PA 19103 Attorneys for Plaintiff Wachovia Bank, National Association Dated: March _X?, 2008 ? O ? -? :.. `r? u;: ? / F 4j? ?I:' ? } ? ?. .' Q ? ?A? M ' SHERIFF'S RETURN - NOT SERVED CASE NO: 2008-01346 P COMMONWEALTH OF PENNSYLVANIA COUNTY OF CUMBERLAND WACHOVIA BANK NA VS BPC PARTNERS R. Thomas Kline , Sheriff , who being duly sworn according to law, says, that he made a diligent search and inquiry for the within named DEFENDANT to wit: BPC PARTNERS unable to locate Them in his bailiwick. COMPLAINT & NOTICE NOTICE, ENTRY OF JUDGMENT BY CONFESSION but was He therefore returns the the within named DEFENDANT BPC PARTNERS NOT SERVED , as to 4150 CHAMBERS HILL ROAD HARRISBURG, PA 17111 SERVICE STOPPED PER FAX FROM ATTORNEY. Sheriff's Costs: So answers -? .-- Docketing 18.00 ` Service 6.31 Out of County 9.00 R. Thomas K1 ne Surcharge 10.00 Sheriff of Cumberland County .00 ,3J(a43.31 REED SMITH 03/14/2008 Sworn and Subscribed to before me this day of , A. D.