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HomeMy WebLinkAbout04-0358HARSCO CORPORATION, GAS & FLUID CONTROL GROUP, Plaintiff IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION-LAW PROPANE EXPRESS, LLC, EXPRESS OIL, INC. and ROBERT K. DESIDERIO : NO. Defendants : NOTICE You have been sued in court. If you wish to defend against the claims set forth in the following pages, you must take action within twenty (20) days after this complaint and notice have been served. To defend against the aforementioned claims, a written appearance stating your defenses and objections must be entered and filed in writing by you, the defendant, or by an attorney. You are warned that if you fail to take action against these claims, the court may proceed without you and a judgement for any money claimed in the complaint or for any other claim required by the plaintiff may be entered against you by the court without further notice. You may lose money, property or other rights important to you. YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER OR CANNOT AFFORD ONE, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW TO FIND OUT WHERE YOU CAN GET LEGAL HELP. Cumberland County Bar Association 2 Liberty Avenue Carlisle, PA. 17013 - (717) 249-3166 (800) 990-9108 NOTICIA Le han demandado a usted en la corte. Si usted quiere defenderse de estas damandas expuastas en las paginas siguientes, usted tiene viente (20) dias de plazo al partir de la fecha de ia demanda y ~a notificacion. Usted debe presentar una apariencia escrita o en persona o por abogado y archivar en ia corte en forma escdta sus defensas o sus objeciones a las demandas en contra de su persona. Sea avisado que si usted no se defiende, la corte tomara medidas y puede entrar una orden contra usted sin previo aviso o notificacion y por cualquier queja o alivio que es pedido en la peticion de demanda. Usted puede perder dinero o sus propiedades o otros derechos importantes para usted. LLEVE ESTA DEMANDA A UN ABODAGO IMMEDIATAMENTE. SI NO TIENNE ABOGAD O SI NO TIENE EL DINERO SUFICIENTE DE PAGAR TAL SERVICiO, VAYA EN PERSONA O LLAME POR TELEFONE A LA OFICINA CUYA DIRECCION SE ENCUENTRA ESCRIDA ABA JO PARA AVERIGUAR DONDE SE PUEDE CONSEGUIR ASSISTENCIA LEGAL: Cumberland County Bar Association 2 Liberty Avenue Carlisle, PA. 17013 -- (717) 249-3166 (800) 990-9108 HARSCO CORPORATION, GAS & FLUID CONTROL GROUP, Plaintiff VS, PROPANE EXPRESS, LLC, EXPRESS OIL, INC. and ROBERT K. DESIDERIO Defendants : IN THE COURT OF COMMON PLEAS : CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION-LAW :NO. COMPLAINT 1. The Plaintiff is Harsco Corporation, Gas & Fluid Control Group, a division of Harsco Corporation, a corporation organized and existing under the laws of the state of Delaware, with an address of 4718 Old Gettysburg Road, Suite 300, P.O. Box 8870, Camp Hill, Cumberland, PA 17001-8870. 2. The Defendants are Propane Express, LLC, and Express Oil, Inc., corporations organized and existing under the laws of the state of Connecticut, and Robert K. Desiderio, an individual, all with an address of 237 Huntington Avenue, Waterbury, Connecticut 06708. COUNT 1 HARSCO CORPORATION v. PROPANE EXPRESS, LLC 3. On or about March 25, 2003, the Defendant Propane Express, LLC entered into a Commercial Note pursuant to which it agreed to pay to the Plaintiff the sum of $16,638.03, in 59 consecutive installments of $342.72, commencing 30 days from the date of shipment of equipment separately purchased by Defendant until paid in full. A copy of the Note with all the terms is attached hereto and made a part hereof as Exhibit "A". 4. The Defendant is presently in default on its payments on the Note. 5. There is presently due and owing to the Plaintiff by the Defendant the sum of $16,573.55. representing the unpaid balance on the Note, plus accrued interest. 6. Defendant has returned 24 of the tanks financed through the above referenced note, giving it a credit against the balance due on the note of $10,842.00, leaving an unpaid balance of $5,731.55. 7. In addition to the aforementioned Note obligations of the Defendant, Defendant also maintained an open account with the Plaintiff for the purpose of purchases on a revolving open credit. 2 8, Defendant was required to pay the open account in full within 30 days of invoice. 9. The current balance on the open account is $5,488.86, which is more than 30 days overdue, as shown on the attached Exhibit "B". 10~ Pursuant to the terms of the aforementioned Note, the Defendant Propane Express, LLC is responsible for the payment of all costs and expenses, including reasonable attorneys fees and disbursements, which may be incurred by Plaintiff in the collection of the Note with the enforcement of the company's rights and remedies thereunder. 11. Plaintiff has made demand upon the Defendant for the full amount of the above Note obligation and open account balance, yet despite demand, the Defendant has failed to and/or refused to make payments as aforesaid. 8 COUNT II HARSCO CORPORATION v. ROBERT K. DESIDERIO AND EXPRESS OIL, INC. 12. Paragraphs 1 through 11 are hereby incorporated by reference as if set forth at length. 13. Concurrent with the obligation set forth above, the individual Defendant executed a personal Guaranty Contract in which he agreed that in the event the amounts due under any contract, including open accounts, between Plaintiff and Defendant Propane Express, LLC were not paid, he would personally guarantee the payment of the same. Copies of the Contract are attached hereto and made a part hereof as Exhibits "C". 14. Concurrent with the obligation set forth above, the Defendant Express Oil, Inc. executed a corporate Guaranty Agreement in which it agreed that in the event the amounts due under any Obligation of the Defendant Propane Express, LLC with the Plaintiff, including open accounts, were not paid, it would guarantee the payment of the same. Copies of the Contract are attached hereto and made a part hereof as Exhibits "D". 4 15. Pursuant to the aforementioned Guaranties, the individual Defendant and the corporate Defendant is liable over to the Plaintiff for the amounts due as set forth above, WHEREFORE, Plaintiff requests this Honorable Court to enter Judgment in favor of the Plaintiff and against the Defendants in the amount of $11,456,89 as of January 31, 2004, plus continuing interest at the contract rates on the aforementioned Note, plus reasonable attomey's fees and costs of suit. Respectfully submitted, PURCELL, KRUG & HALLER BY lI~. #29955 1719 North Front Street Harrisburg, PA 17102 (717) 234-4178 5 COMMERCIAL NOTE $16,638,03 March 25, 2003 FOR VALUE RECEIVED, each of the undersigned, jointly and severally if more than one (hereinafter collectively referred to as "Borrower"), promises to pay to the order of HARSCO CORPORATION (the "Company"), at its offices at 4718 Old Gettysburg Rd., Ste 300, P. O. Box 8316, Camp Hill, PA 17001-8316, the principal amount of Sixteen Thousand Six Hundred Thirty-eight and 031100 DOLLARS, in lawful money of the United States, plus interest, to be paid as follows: said principal plus interest shall be payable in 59 consecutive equal monthly installments of principal and interest, each in the amount of $342.72 commencing 30 days from date of shipment of Equipment and on the same day of the month each month thereafter, each of which installments shall be applied first to the payment of accrued and unpaid interest and then to the payment of principal and a final installment in an amount which is necessary to pay in full all of the outstanding principal plus accrued and unpaid interest on this Note on the date of the final payment. Interest shall accrue at the rate of 8.67% per annum. Payments will be applied as aforesaid on the date received. ADDITIONAL TERMS OF THIS NOTE - Each of the following provisions shall apply to this Note, to any extension or modification hereof and to the indebtedness evidenced hereby, except as otherwise expressly stated above or in a separate writing signed by Company and Borrower. INDEBTEDNESS - This Note evidences the indebtedness of Borrower in connection with the sale of Equipment sold by Company to Borrower. INTEREST - Interest shall be calculated on the basis of a 360-day year and shall be charged for the actual number of days elapsed. Accrued interest shall be payable monthly. Accrned interest shall also be payable when the entire principal balance of this Note becomes due and payable (whether by demand, stated maturity or acceleration) or, if earlier, when such principal balance is actually paid to Company. Interest shall accrne from the date shipment of Equipment is made by Company, provided, however, that to the extent this Note represents a replacement, substitution, renewal or refinancing of existing indebtedness, interest shall accrue from the date hereof. Interest shall accrue on the unpaid balance hereof at the rate provided for in this Note until the entire unpaid balance has been paid in full, notwithstanding the entry of any judgment against Borrower. PREPAYblENT - A prepayment of principal (including any principal repayment as a result of acceleration by Company of this Note) shall require immediate payment to Company of a prepayment fee equal to 1.5% of the principal amount being prepaid. Prepayments shall be applied to scheduled installments of principal in the inverse order of their maturity, shall be accompanied by payment of accrued interest on the principal amount being prepaid and, unless this Note has been accelerated by Company shall not be permitted in an amount less than the scheduled principal installment prior to final maturity of the outstanding principal balance. COLLATERAL - ']'his Note and the indebtedness evidenced hereby shall be secured by any lien or security interesl evidenced by a writing (whether now existing or hereafter executed) which contains a provision to the effect that such lien or security interest is intended to secure this Note or indebtedness evidenced hereby. EVENTS OF DEFAULT - Each of the following shall be an Event of Default hereunder: (a) the nonpayment when due of any amount payable under this Note or under any obligation or indebtedness to Company of Borrower or any person liable, either absolutely or contingently, for payment of any indebtedness evidenced hereby, including endorsers, guarantors and sureties (each such person is referred to as an "Obligor"); (b) if Borrower or any Obligor has failed to observe or perform any other existing or future agreement with Company of any nature whatsoever; (c) if any representation, warranty, certificate, financial statement or other information made or given by Borrower or any Obligor to Company is materially incorrect or misleading; (d) if Borrower or any Obligor shall become insolvent or make an assignment for the benefit of creditors or if any petition shall be filed by or against Borrower or any Obligor under any bankruptcy or insolvency law; (e) the entry of any judgment against Borrower or any Obligor ~'hich remains unsatisfied for 15 days or the issuance of any attachment, tax lien. levy or garnishment against any property of material value in which Borrower or any Obligor has an interest; { 0 if any attachment, levy, garnishment or similar legal process is served upon Company as a result of any claim against Borrower or any Obligor or against any property of Borrower or any Obligor; (g) the dissolution, merger, consolidation or change in control (as control is defined in Rule 12b-2 under the Security Exchange Act of 1934), of any Borrower which is a corporation or partnership, or the sale or transfer of any substantial portion of any of Borrower's assets, or if any agreement for such dissolution, merger, or consolidation, change in control, sale or transfer is entered into by Borrower, without the written consent of Company; (h) the death of any Borrower or Obligor who is a natural person; (i) if Company determines reasonably and in good faith that an event has occurred or a condition exists which has bad. or is likely to have, a material adverse effect on the financial condition or creditworthiness of Borrower or any Obligor, or on the ability of Borrower or any Obligor to perform its obligation evidenced by this Note; (j) if Borrower shall fail to remit promptly when due to the appropriate government agency or authorized depository, any amount collected or . withheld from any employee of V'~rrower for payroll taxed, Social Security payments or similar pa~oll deductiofis; (k) if any Obligor shall anempi terminate or disclaim sudh Obligor's liability the indebtedness evidenced by this Note; (1) if Company shall reasonably and in good faith determine and notify Borrower that any collateral for this Note or for the indebtedness evidenced hereby is insufficient as to quality or quantity; (m) if Borrower shall fail to pay when due any material indebtedness for borrowed money other than to Company; of (n) Jf Borrower shall be notified of the failure of Borrower or any Obligor to provide financial and other ixfformation prm,tptly x~hen reasonably requested by Company. COMPANY'S REMEDIES - Upon the occurrence of one or more Events of Default, unless Company elects otherwise, the entire unpaid balance of this Note and all accrued interest shall be immediately due and payable without notice to Borrower or any Obligor, and Company may, immediately or at any time thereafter, exercise any or all of its rights and remedies hereunder or under any agreement or otherwise under applicable law against Borrower, any Obligor and any collateral. Company may exercise its rights and remedies in any order and may, at its option, delay in or refrain from exercising some or all of its rights and remedies without prejudice thereto, If Borrower fails to make any payment when due hereunder, Borrower shall pay company a service charge of five percent (5%) of such delinquent amount plus interest thereon from the due date thereofunfil paid at the rate set forth above. NOTICE TO BORROWER - Any notice required to be given by Company under the provisions of this Note shall be effective as to each Borrower and each Obligor when addressed to Borrower and deposited in the mail, postage prepaid, for delivery by first class mail at Borrower's mailing address as it appears on Company's records. PAYMENTS - All payments due under this Note are to be made in immediately available fimds. If Company accepts payment in any other form, such payment shall not be deemed to have been made until the funds comprising such payment have actually been received by or made available to Company. PAYMENT OF COSTS - In addition to the principal and interest payable hereunder, Borrower agrees to pay Company, on demand, all costs and expenses (including reasonable attorney's fees and disbursements) which may be incurred by Company in the collection of this Note or the enforcement of Company's rights and remedied hereunder. REPRESENTATIONS BY BORROWER - [f Borrower is a corporation or a general or limited partnership, Borroxver represents and warrants that it is validly existing and in good standing in the jurisdiction under whose laws it was organized. If Borrower is a corporation, Borrower represents and warrants that the execution, delivery and performance of this Note are within Borrower's corporate powers, have been duly authorized by all necessary action by Borrower's Board of Directors, and are not in contravention of the terms of Borrower's charter, by-laws, or any resolution of its l~oard of Directors. If Borrower is a general or limited partnership, Borrower represents and warrants that the execution, delivery and performance of this Note have been duly authorized and are not in conflict with any provision of Borrower's parmership agreement or certificate of limited partnership. Borrower fur~er represents and warrants that this Note has been validly executed and is enforceable in accordance with its terms, that the execution, delivery and performance by Borrower of this Note are not in contravention of law and do not conflict with any indenture, agreement or undertaking to which Borrower is a party or is otherwise bound, and that no consent or approval of any governmental authority or any third party is required in connection with the execution, delivery and performance of this Note. V~AIVER. ETC., ~ Borrower and each Obligor ~vaive presentment, dishonor, notice of dishonor, protest and notice of protest. Neither the failure nor any delay on the part of Company to exercise any right, remedy, power or privilege hereunder shall operate as a waiver or modification thereof. No consent, waiver or modification of the terms of this Note shall be effective unless set forth in a xvriting signed by company. All rights and remedies of Company are cumulative and concurrent and no single or panini exercise of any power or privilege shall preclude any other or further exercise of any right, power or privilege. MISCELLANEOUS - This Note is the unconditional obligation of Borrower, and Borrower agrees that Company shall not be required to exercise any of its rights or remedies against any collateral in which it holds a lien or security interest or against which it has a right of setoffor against any particular Obligor. All representation, warranties and agreements herein are made jointly and severally by each Borrower. If any provision of this Note shall be held invalid or unenforceable, such invalidity of unenforceabitity shall not affect any other provision hereof. To the extent that this Note represents a replacement, substitution, renewal or refinancing of a pre-existing note or other evidence of indebtedness, the indebtedness represented by such pre-existing note or other instrument shall not be deemed to have been extinguished hereby. This Note has been delivered in and shall be governed by and construed in accordance with the laws of the Commonwealth of Pennsylvania without regard to the law conflicts. This Note shall be binding upon each Borrower and each Obligor and upon their personal representatives, heirs, successors and assigns, and shall benefit Company and its successors and assigns. ASSIGNMENT BY COMPANY ~ Company may assign or transfer, and Borrower hereby consents to the assignment or transfer, of Company's interes this Note without notice to Borrower. Bt ~er agrees that the liability of Borrower to any assignee of Company or any subsequent assignee of such assignee, shall be absolute and unconditional. CONSENT TO JURISDICTION AND VENUE - IN ANY LEGAL PROCEEDING INVOLVING, DIRECTLY OR INDIRECTLY, ANY MATFER ARISING OUT OF OR RELATED TO THIS NOTE OR THE RELATIONSHIP EVIDENCED HEREBY, EACH UNDERSIGNED PARTY HEREBY IRREVOCABLY SUBMITS TO THE NONEXCLUSIVE JURISDICTION OF ANY STATE OR FEDERAL COURT LOCATED IN ANY COUNTY OF THE COMMONWEALTH OF PENNSYLVANIA WHERE COMPANY MAINTAINS AN OFFICE AND AGREES NOT TO RAISE ANY OBJECTION TO SUCH JURISDICTION OR TO THE LAYING OR MAINTAINING OF THE VENUE OF ANY SUCH PROCEEDING tN SUCH COUNTY. EACH UNDERSIGNED PARTY AGREES THAT SERVICE OF PROCESS IN ANY SUCH PROCEEDING MAY BE DULY EFFECTED UPON IT BY MAILING A COPY THEREOF, BY REGISTERED MALL, POSTAGE PREPAID, TO EACH UNDERSIGNED PARTY. WAIVER OF JURY TRIAL - EACH UNDERSIGNED PARTY HEREBY WAIVES AND COMPANY BY ITS ACCEPTANCE HEREOF THEREBY WAIVES, TRIAL BY JURY IN ANY LEGAL PROCEEDING INVOLVING, DIRECTLY OR INDIRECTLY, ANY MATTER ('*VHETHER SOUNDING IN TORT, CONTRACT OR OTHERWISE) IN ANY WAY ARISING OUT OF OR RELATED TO THIS NOTE OR THE RELATIONSHIP EVIDENCED HEREBY. THIS PROVISION IS A MATERIAl. INDUCEMENT FOR COMPANY TO ENTER INTO, ACCEPT OR RELY UPON THIS NOTE. IN WITNESS WHEREOF, Borrower, intending this to be a sealed insmament and intending to be legally bound hereby, has executed and delivered this Note as of the day and year first above written. Corporation or Partnership: By: Propane Robert K. Desiderio, President (Print name and title) Individuals: Witness Borrower (Print name of Witness) (Print name of Borrower) X (Print name of Witness) (Print name of Borrower) 10/28/03 10:35:07 262636 PROPANE EXPRESS Find invoice Type options, press Enter. 5=D±splay Accounts Receivable Inquiry C/N 100 KNAHONEY ARR310 Open Accounts Receivable : Open AR total : : 5,488,86 : : Press Enter to continue. : Opt Invoice Ship-to Typ St 0 lnv 2259602 262636 IN 50203 2260089 262636 IN 60503 6619009 262636 IN 51603 6619009 262636 OR 51403 6619355 262636 IN 62003 Net Age Invoice Amount 60103 149 1,804.12 7~503 115 1,452.20 61503 135 902,06 61503 135 851,00~ 72003 100 2,181,48 F2=Nindo~ FS=Fold Fg:Oontacts F18=Calculate balance F11=Remarks F12=Cance~ F20=Customer summary Personal Guaranty Contract GUARANTY AGREEMENT dated this 25th day of March 2003 for and in consideration of the extension of credit to Propane Express, LLC and/or his agents of Robed K. Desiderior and Erin Desiderio (referred to hereinafter as the "Guarantor"), and other good and sufficient considerations to the undersigned accruing, I (or we, jointly and severally) hereby give this Continuing Guaranty to Harsco Corporation, Gas & Fluid Control Group (referred to hereinafter as the "Harsco"), for the payment in full, together with all interest, fees and charges of whatsoever nature and kind of any and a~l indebtedness of the Guarantor to the Harsco, whether an open account, credit card account, or evidenced by note, secured or unsecured, due and owing at the present time, or that may hereafter be due and owing by Guarantor to Harsco. and it is further agreed that if bills are not paid when due, I (or we or any of us) will personally pay the same upon notice and demand. It is agreed that this Continuing Guaranty applies to any extensions or renewals of credit given by Harsco to Guarantor. It is specifically understood and agreed that the Harsco shall not be required to exhaust its legal remedies for recovery and collection against the Guarantor before looking to the undersigned (or any of them) for payment of this account, but that if the account is not paid when due Harsco may, at once, notify the undersigned, and upon receipt of such notice that the said account is past due and unpaid, the undersigned assumes liability therefor and agrees to pay the same without delay or defalcation. The discharge of Guarantor in bankruptcy wi!l not relieve the undersigned from liability with regard to any amount due and owing under this Continuing Guaranty. it is distinctly understood and agreed that Harsco may enter suit against the undersigned (or any one or more of the undersigned) for the recovery of the entire amount of said indebtedness hereby secured, and may recover judgment therefore against the undersigned (or any one or more of said guarantors). It is also ;Jnderstood and agreed that in the event the Harsco commences such suit then and in that event I (or we and each of us) shall pay for the cost of suit and attorneys' fees and commissions for collection, in addition to the indebtedness hereby secured. It is further understood and agreed that the undersigned, each for himself, his heirs, executors, and administrators, does hereby waive the benefit of any and all state laws exempting real and/or personal property from levy and sale on execution, and agrees to the immediate issuance and levying of writs of execution upon his interests in any real estate of personal property and the subjugation thereof to sale for satisfaction of any such judgment or judgments. The undersigned hereby waives notice of the acceptance of this guaranty, notice of demand and maturity of payments to become due, notice of default in payment by the Guarantor and all such notices required or customarily given under like circumstances. It is also specifically understood and agreed that t (or we and each of us) expressly consent that the time of payment of any indebtedness hereby secured may be extended, or that the Harsco may at any time require and accept other security of any nature whatsoever from Guarantor without notice to consent from me (or us or each of us). I (or we and each of us jointly and severally) agree to be held responsible for said obligations precisely as if the same had been contracted and due and owing by the undersigned or each of us in person. This Continuing Guaranty binds each of the signers hereto, jointly and severally, their respective heirs, executors, and administrators and shall extend to and cover all renewals of any claims or demands guaranteed under this instrument, or the extension of time of payment thereof, and shall remain in full force and effect from this date until revoked by the undersigned in writing to be sent by registered mail to the Vice President-Controller at P. O. Box 8316, City of Camp Hill, State of Pennsylvania 17001-8316, evidence of such mailing to be established by postal receipt. No addition, alteration, modification, novation or change in any of the terms or conditions of this Guaranty shall be binding upon the Harsco unless made in writing and signed by an authorized Vice President of Harsco. The obligation of Guarantor is a primar7 and unconditional obligation and shall not be affected in any manner by any change in the status of Customer or by any change from any cause whatsoever. This Guaranty shall not be revoked by the death or incapacity of any Guarantor but shall remain in full force and effect until terminated in a writing executed by Harsco and Guarantor. Guarantor hereby waives any defenses whatsoever which Guarantor and/or Customer may have with respect to any of the obligations or liabilities of Guarantor to Harsco under this Guaranty including, without limitation to the generality hereof, defenses arising out of estoppel, laches or any statute of limitations. It is the specific intention and agreement of the parties that this Agreement for any purpose be governed and interpreted solely by and under the laws of the Commonwealth of Pennsylvania in which jurisdiction the principal offices of Harsco Corporation are located. It is the specific intention and agreement of the parties that this Agreement be suitable for filing and confession of judgment in the event of a default hereunder. If any provisions of this Guaranty Agreement shall contravene or be invalid under the taws ef the United States or any State, such contravention or invalidity shall not invalidate this Agreement or any other agreement which is part of this transaction, but shall be construed as not containing such provision, and the rights and obligations of the padies under this Guaranty Agreement shall be interpreted, construed and enforced accordingly. IN WITNESS WHEREOF, the parties have executed this Guaranty Agreement the day and year first above written, WITNESS: {Name an~ address) Robert K. Desiderio Erin Dc~id~, ;v WITNESS: Harsco Corporation, Gas & Flu, id Control Group GUARANTEE AGREEMENT Made as of Mamh 25, 2003 by Express Oil, Inc. (Name) 237 Huntinqton Avenue Waterbury (Street and number) (City) New Haven CT 06708 (County) (State) (Zip) ("Guarantor"); a corporation, said address being Guarantor's principal place of business. 1.1 Definitions. As used in this Guarantee, the following terms, unless the context otherwise requires, will have the meanings indicated: 1~1.1 "Debtor' means Propane Express, LLC a corporation, having its principal place of business at 237 Huntington Avenue, Waterbury, CT 06708. 1.1.2 "Seller' means American Welding & Tank, Division of Harsco Corporation, a Delaware corporation. 1.1.3 "Obligations" means all indebtedness, obligations and liabilities of any kind of Debtor to Seller, now existing or hereafter arising, and whether direct or indirect, acquired outright, conditionally or as a collateral security from another, absolute or contingent, joint or several, secured or unsecured, due or to become due, contractual or tortious, liquidated or unliquidated, or arising by operation of law or otherwise, and including without limitation all sums owed under any promissory notes of Debtor payable to Seller. 2.1 Guarantee. intending to be legally bound, and to induce Seller to grant credit or continue to grant credit or otherwise extend financ~ial accommodation to Debtor, Guarantor hereby unconditionally and absolutely guarantees to Seller the due performance and full payment of all Obligations together with all expenses of obtaining or endeavoring to obtain performance or payment of the Obligations, or enforcing this Guarantee, including court costs and reasonable attorneys' fees and expenses: This Guarantee is a continuing one and will be effective and binding on Guarantor regardless of how long before or after the date hereof any of the Obligations were or are incurred, except that upon receipt by Seller of a notice that Guarantor will not be liable for future Obligations, Guarantor will not be liable for such of the Obligations as are incurred after such receipt unless such Obligations are renewals, extensions or modi[ications of Obligations theretofore existing or unless Seller is bound by agreement entered into before receipt of such notice to permit such Obligations to be incurred. 3.1 Amount of Liability. This Guarantee will be unlimited in amount. 4.1 Unconditional Liability. The liability of Guarantor under this Guarantee is continuing, absolute and unconditional and will not be affected in any way by reason of: 4.1.1 Any failure to retain or preserve, or the lack of prior enforcement of, any rights against any person or persons (including Debtor and Guarantor) or in any property; 4.1.2 The invalidity of any such rights which may be attempted to be obtained; 4.1.3 Any delay in enforcing or failing to enforce any such rights even if such rights are thereby lost; or 4.1.4 Any delay in making demand on Guarantor for performance or payment. 4.2 Guarantor's Claims and Defenses. The liability of Guarantor under this Guarantee will not be subject to any counterclaim, setoff, deduction or defense based upon any claim the Guarantor may have against Seller or Debtor. 5.1 Consents and Waivers. The Guarantor hereby consents to the taking of, or failure to take, from time to time without notice to the Guarantor, any action of any nature whatsoever with respect to the Obligations and with respect to any dghts against any person or persons (including Debtor and Guarantor) or in any property, including but not being limited to any renewals, extensions, modifications, postponements, compromises, indulgences, waivers, surrenders, exchanges and releases, and Guarantor will remain fully liable in this Guarantee notwithstanding any of the foregoing. Guarantor hereby waives the benefit of all laws now or hereafter in effect in any way limiting or restricting the liability of Guara,ntor hereunder except the defense of payments made on account of the Obligations and Guarantor's liability under this Guarantee. Guarantor hereby waives all notices of any character whatsoever with respect to this Guarantee and the Obligations, including, without limitation, notice: 5.1.1 Of the acceptance of and reliance on this Guarantee; 5.1.2 Of the present existence or future incurring of any of the Obligations; 5.1.3 Of the amount, terms and conditions thereof; and 5.1.4 Of any defaults thereon. 6.1 Acceleration. Upon the occurrence of any event of default under any agreement between Debtor and Seller, or if any of the Obligations are not duly performed, including the prompt payment when due of any amount payable thereon, all the Obligations will at Seller's option be deemed to be immediately due and payable for the purposes of this Guarantee and the liability of Guarantor. 7.1 No Subroqation. So long as the Obligations have not been paid in full, no payment by Guarantor, pursuant to the provisions hereof, will entitle Guarantor, by subrogation to the rights of Seller or otherwise, to any payment by Debtor or out of the property of Debtor. 8.1 Subsequent Guarantees. A subsequent guarantee by Guarantor or any other guarantor of the Obligations will not be deemed to be in lieu of or to supersede or terminate this Guarantee but will be construed as an additional or supplementary guarantee unless otherwise expressly provided therein; and in the event Guarantor or any other guarantor have given to Seller a previous guarantee or guarantees, this Guarantee will be construed to be an additional or supplementary guarantee, and not be in lieu thereof or to terminate such previous guarantee or guarantees. 9.1 Joint and Several Liability. If more than one person is designated as Guarantor herein the obligations of each such person will be joint and several, and any reference to the "Guarantor" will be deemed to refer to and be applicable to each one separately, as well as to all. If there is more than one Guarantor, Seller may take any action whatsoever with respect to one Guarantor, without in any way affecting the obligations of any other Guarantor. 10.1 Waiver. Any waiver by Seller of any provisions hereof or of the full and timely performance by Guarantor of its obligations will be in writing and will be effective only in the specific instance and only for the purpose for which given. No failure or delay on the part of Seller in exercising any right, power or privilege under this Guarantee will operate as a waiver thereof, nor will any single or partial exercise of any dght, power or remedy by Seller preclude any other or further exercise thereof or the exercise of any other right, power or remedy under this Guarantee. The remedies provided herein are cumulative and not exclusive of any remedies provided by law. 11.1 Notices. All notices, demands and other communications which are required to be given to or made by Guarantor or Seller to the other in connection with this Guarantee will be in writing and will be deemed to have been given when mailed by certified or registered mail or telegraphed or delivered by hand to the applicable party at the following address (or at such other address as is designated in a written notice given in conformity with this section). - If to Seller: Vice President-Controller, Harsco Corporation, P. O. Box 8316, 4718 Old Gettysburg Rd., Camp Hill, PA 17001; if to Guarantor 12.1 Successors and Assiqns. This Guarantee and all of the terms and conditions hereof will be binding upon the personal representatives, successors and assigns of Guarantor and will inure to the benefit of the successors and assigns of Seller but will confer no rights on third persons. 13.1 Goveminq Law. This Guarantee will be governed by and construed in accordance with the laws of the Commonwealth of Pennsylvania where Seller maintains its principal divisional offices. IN WITNESS WHEREOF, the undersigned have executed this Guarantee Agreement as of the date first set forth above. (signature of officer) (SEAL) ~._~//ef~~rtn~rship) VERIFICATION COMPANY NAME: Harsco Corporation, Gas & Fluid Control Group verify that the statements made in the foregoing Complaint are true and correct. I understand that false statements herein are made subject to the penalties of 18 PA C.S. § 4904 relating to unsworn falsification to authorities. STATE OF PENNNSYLVANIA IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY HARSCO CORPORATION, GAS & FLUID CONTROL GROUP Plaintiff(s), Petitioner(s) PROPANE EXPRESS, LLC, EXPRESS OIL, INC. AND ROBERT K. DESIDERIO Defendant(s), Respondent(s) CLIENT: Choice Process - Tampa INDEX NO.: 04-3:58 Civil Team RETURN DATE: ~Z/6/2004 JUSTICE: 20040{)0561 AFFIDAVIT OF SERVICE STATE OF CONNECTICUT: COUNTY OF HARTFORD I, William Overton being duly sworn according to law upon my oath, depose and say, that deponent is not a party to this action, is over 18 years of age and resides in Middlebury, CT. Fudhermore, that on February 9, 2004 at 5:18 PM at 55 Jericho Road, Watertown, CT, deponent served the Notice and Complaint upon Robert K. Desiderio, (Defendant/Respondent) herein known as Recipient. Said service was effected in the following manner: By delivering thereat a true copy of each Notice and Complaint to Robert K. Desiderio, personally; Deponent knew said person so served to be the person mentioned and described as said recipient therein. Deponent describes the individual served to the best of deponent's ability at the time and circumstances of service as follows: Sex: Male Skin: White Hair: Gray Age(Approx): 51-65 Height(Approx): 5'9"- 6'Weight(Approx): 161-200 lbs Other: Balding and Glasses I asked the Recipient if he/she was in active military service of the United States or the State of Connecticut in any capacity and received a negative reply. Recipient wore ordinary civilian clothes and no military uniform. The source of my information and the grounds of my belief are the conversations and observations above narrated. Upon information and belief I aver that the Recipient is not in the military service of Connecticut State or the United States as that term is defined in the statues of Connecticut State or the Federal Soldiers and Sailors Civil Relief Act. I certify that the foregoing statements made by me are true, correct and my free act and deed. I am aware that if any of the foregoing statements made by me are willfully false, I am subject to punishment. Public STATE OF PENNNSYLVANIA IN THE C~[JRT OF COMMON PLEAS CUMBERLAND COUNTY HARSCO CORPORATION, GAS & FLUID CONTROL GROUP Plaintiff(s), Petitioner(s) PROPANE EXPRESS, LLC, EXPRESS OIL, INC. AND ROBERT K. DESIDERIO Defendant(s), Respondent(s) CLIENT: Choice Process - Tampa INDEX NO.: 04-3158 Civil Team RETURN DATE: ;2/612004 JUSTICE: 2004000~. AFFIDAVIT OF SERVICE STATE OF CONNECTICUT: COUNTY OF HARTFORD I, William Overton being duly sworn according to law upon my oath, depose and say, that deponent is not a party to this action, is over 18 years of age and resides in Middlebury, CT. Furthermore, that on February 9, 2004 at 5:18 PM at cio Robert Desiderio, 55 Jericho Road, Watertown, CT, deponent served the Notice and Complaint upon Express Oil, Inc., (Defendant/Respondent) herein known as Recipient. Said service was effected in the following manner: By delivering to and leaving a true copy of each Notice and Complaint with Robert K. Desiderio a person who is known to be the authorized agent of said corporation and/or company, and who is authorized by said corporation and/or company to receive said Notice and Complaint. Deponent describes the individual served to the best of deponent's ability ai the time and circumstances of service as follows: Sex: Male Skin: White Hair: Gray Age(Approx): 51-65 Height(Approx): ."i'9" - 6' Weight(Approx): 161-200 lbs Other: Balding and Glasses I certify that the foregoing statements made by me are true, correct and my free act and deed. I am aware that if any of the foregoing statements made by me are willfully false, I am subject to punishment. '~illi~-'~;~on, Pdvate Proc~C~s Servcr STATE OF PENNNSYLVANIA IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY HARSCO CORPORATION, GAS & FLUID CONTROL GROUP Plaint[fi(s), Petitioner(s) against PROPANE EXPRESS, LLC, EXPRESS OIL, INC. AND ROBERT K. DESIDERIO Defendant(s), Respondent(s) CLIENT: Choice Process - Tampa INDEX NO.: 04-358 Civil Team RETURN DATE: 21512004 JUSTICE: 2004000559 AFFIDAVIT OF SERVICE STATE OF CONNECTICUT: COUNTY OF HARTFORD I, Mark Lautenbach being duly sworn according to law upon my oath, depose and say, that deponent is not a party to this action, is over 18 years of age and resides in Manchester, CT. Furthermore, that on February 6, 2004 at 9:50 AM at cio P. Michael Margolis, 254 Prospect Avenue, Hartford, CT, deponent served the Notice and Complaint upon Propane Express LLC, (DefendantJRespondent) herein known as Recipient. Said service was effected in the following manner: By delivering to and leaving a true copy of each Notice and Complaint with P. Michael Margolis a person who is known to be the Registered Agent of said corporation and/or company, and who is authorized by said corporation and/or company to receive said Notice and Complaint. Deponent describes the individual served to the best of deponent's ability at the time and circumstances of service as follows: Sex: Male Skin: White Hair: Black Age(Approx): 36-50 Height(Approx): 5'4"-5'8" Weight(Approx): 131-160 lbs Other: Glasses/Balding I certify that the foregoing statements made by me are true, correct and my free act and deed. I am aware that if any of the foregoing statements made by me are willfully false, I am subject to punishment. Sw rn to bef~i~d~ ortJV~,L~24~. 2004 Notary Public ~~ HARSCO CORPORATION, GAS & FLUID CONTROL GROUP, Plaintiff VS. PROPANE EXPRESS, LLC EXPRESS OIL, INC. AND ROBERT K. DESIDERIO, Defendants : IN THE COURT OF COMMON PLEAS : CUMBERLAND COUNTY, PENNSYLVANIA : : CIVIL ACTION-LAW NO. 04-358 CIVIL TERM PRAECIPE TO THE PROTHONOTARY: Please enter judgment in favor of the Plaintiff and against the Defendants in the above matter, for failure to file a response to the Complaint, within twenty days of service, and after Ten Day Notice pursuant to Pa. R.C.P. 237.1. Judgment shall be as follows: 1. In favor of the Plaintiff and against the Defendants for $11,456.89 as of January 31, 2004, plus continuing interest thereafter, plus reasonable Attorney's fees and costs of suit. I hereby certify that a Ten Day Notice of Default was mailed to the Defendants on April 5, 2004 in accordance with the above referenced Rule. Date: PURCELL, KRUG & HALLER B~squire Harrisburg, PA 17102 (717) 234-4178 HARSCO CORPORATION, GAS & FLUID CONTROL GROUP, Plaintiff VS. PROPANE EXPRESS, LLC, EXPRESS OIL, INC. AND ROBERT K, DESlDERIO, Defendant : IN THE COURT OF COMMON PLEAS : CUMBERLAND COUNTY, PENNSYLVANIA : : CIVIL ACTION-LAW : NO. 04-358 CIVIL TERM NOTICE TO PLEAD TO: Propane Express LLC, Defendant 254 Prospect Avenue Hartford, CT 06106 DATE OF NOTICE: April 5, 2004 YOU ARE IN DEFAULT BECAUSE YOU HAVE FAILED TO ENTER A WRITTEN APPEARANCE PERSONALLY OR BY ATTORNEY AND FILE IN WRITING WITH THE COURT YOUR DEFENSES OR OBJECTIONS TO THE CLAIMS SET FORTH AGAINST YOU. UNLESS YOU ACT WITHIN TEN DAYS FROM THE DATE OF THIS NOTICE A JUDGMENT MAY BE ENTERED AGAINST YOU WITHOUT A HEARING AND YOU MAY LOSE YOUR PROPERTY OR OTHER IMPORTANT RIGHTS. YOU SHOULD TAKE THIS NOTICE TO A LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER OR CANNOT AFFORD ONE, GO TO OR TELEPHONE THE FOLLOWING OFFICE TO FIND OUT WHERE YOU CAN GET LEGAL HELP. Cumberland County Bar Association 2 Liberty Avenue Carlisle, PA 17013 (717)240-3166 or (800) 990-9108 ./rD. 29955 ~ North Front Street Harrisburg, PA 17102 (717) 234-4178 Attorney for Plaintiff NOTIClA IMPORTANTE TO: Propane Express LLC, Defendant 254 Prospect Avenue Hartford, CT 06106 FECHA DE NOTICIA: April 5, 2004 USTED NO HA COMPLIDO CON EL AVISO ANTERIOR PORQUE HA FALTADO EN TOMAR MEDIDAS REQUERIDAS RESPECTO A ESTE CASO. SI USTED NO ACUTA DENTRO DE DIEZ (10) DIAS DESDE LA FECHA DE ESTA NOTICIA, ES POSIBLE QUE UN FALLO SERIA RESITRADO CONTRA USTED SIN UNA AUDENCIA Y USTED PODRIA PERDER SU PROPIEDAD O OTROS DERECHOS IMPORTANTES. USTED DEBE LLEVAR ESTA NOTICIA A SU AI3OGADO EN SEGUIDA. SI USTED NO TIENE ABOGADO O NO TIENE CON QUE PAGAR LOS SERVICIOS DE UN ABAOGADO, VAYA O LLAME A LA OFICINA ABA JO PARA AVERIGUAR A DONDE USTED PUEDE OBTENER LA AYUDA LEGAL. Cumberland County Bar Association 2 Liberty Avenue Carlisle, PA 17013 (717)240-3166 or (800) 990-9108 HARSCO CORPORATION, GAS & FLUID CONTROL GROUP, Plaintiff VS, PROPANE EXPRESS, LLC, EXPRESS OIL, INC. AND ROBERT K. DESlDERIO, Defendant : IN THE COURT OF COMMON PLEAS : CUMBERLAND COUNTY, PENNSYLVANIA : CIVIL ACTION-LAW : NO. 04-358 CIVIL TERM NOTICE TO PLEAD TO: Express Oil, Inc., Defendant 55 Jericho Road Watertown, CT 06795-1619 DATE OF NOTICE: April 5, 2004 YOU ARE IN DEFAULT BECAUSE YOU HAVE FAILED TO ENTER A WRITTEN APPEARANCE PERSONALLY OR BY ATTORNEY AND FILE IN WRITING WITH THE COURT YOUR DEFENSES OR OBJECTIONS TO THE CLAIMS SET FORTH AGAINST YOU. UNLESS YOU ACT WITHIN TEN DAYS FROM THE DATE OF THIS NOTICE A JUDGMENT MAY BE ENTERED AGAINST YOU WITHOUT A HEARING AND YOU MAY LOSE YOUR PROPERTY OR OTHER IMPORTANT RIGHTS. YOU SHOULD TAKE THIS NOTICE TO A LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER OR CANNOT AFFORD ONE, GO TO OR TELEPHONE THE FOLLOWING OFFICE TO FIND OUT WHERE YOU CAN GET LEGAL HELP. Cumberland County Bar Association 2 Liberty Avenue Carlisle, PA 17013 (717)240-3166 or (800) 990-9108 ~..~:~h'~W .~ P u"C~e I I, Jr. J I.D~. 29955 ,/ 1719 N/e'rth Front Street ~.._..~m~sburg, PA 17102 (717) 234-4178 Attorney for Plaintiff NOTICIA IMPORTANTE TO: Express Oil, Inc., Defendant 55 Jericho Road Watertown, CT 06795-1619 FECHA DE NOTICIA: April 5, 2004 USTED NO HA COMPLIDO CON EL AVISO ANTERIOR PORQUE HA FALTADO EN TOMAR MEDIDAS REQUERIDAS RESPECTO A ESTE CASO. SI USTED NO ACUTA DENTRO DE DIEZ (10) DIAS DESDE LA FECHA DE ESTA NOTICIA, ES POSIBLE QUE UN FALLO SERIA RESITRADO CONTRA USTED SIN UNA AUDENCIA Y USTED PODRIA PERDER SU PROPIEDAD O OTROS DERECHOS IMPORTANTES. USTED DEBE LLEVAR ESTA NOTIClA A SU ABOGADO EN SEGUIDA. SI USTED NO TIENE ABOGADO O NO TIENE CON QUE PAGAR LOS SERVIClOS DE UN ABAOGADO, VAYA O LLAME A LA OFIClNA ABA JO PARA AVERIGUAR A DONDE USTED PUEDE OBTENER LA AYUDA LEGAL. Cumberland County Bar Association 2 Liberty Avenue Carlisle, PA 17013 (717)240-3166 or (800) 990-9108 HARSCO CORPORATION, GAS & FLUID CONTROL GROUP, Plaintiff VS. PROPANE EXPRESS, LLC, EXPRESS OIL, INC. AND ROBERT K. DESlDERIO, Defendant : IN THE COURT OF COMMON PLEAS : CUMBERLAND COUNTY, PENNSYLVANIA : CIVIL ACTION-LAW : NO. 04-358 CIVIL TERM NOTICE TO PLEAD TO: Robert Desiderio, Defendant 55 Jericho Road Watertown, CT 06795-1619 DATE OF NOTICE: April 5, 2004 YOU ARE IN DEFAULT BECAUSE YOU HAVE FAILED TO ENTER A WRITTEN APPEARANCE PERSONALLY OR BY ATTORNEY AND FILE IN WRITING WITH THE COURT YOUR DEFENSES OR OBJECTIONS TO THE CLAIMS SET FORTH AGAINST YOU. UNLESS YOU ACT WITHIN TEN DAYS FROM THE DATE OF THIS NOTICE A JUDGMENT MAY BE ENTERED AGAINST YOU WITHOUT A HEARING AND YOU MAY LOSE YOUR PROPERTY OR OTHER IMPORTANT RIGHTS. YOU SHOULD TAKE THIS NOTICE TO A LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER OR CANNOT AFFORD ONE, GO TO OR TELEPHONE THE FOLLOWING OFFICE TO FIND OUT WHERE YOU CAN GET LEGAL HELP. Cumberland County Bar Association 2 Liberty Avenue Carlisle, PA 17013 (717)240-3166 or (800) 990-9108 f / I.D. 29955 (' 17..1,9 North Front Street ~....._~la r/rl~u~ r~g ,~ ~PA~ ~1~102 (717) 234-4178 Attorney for Plaintiff NOTICIA IMPORTANTE TO:Robert Desiderio 55 Jericho Road, Watertown, CT FECHA DE NOTICIA: April 5, 2004 USTED NO HA COMPLIDO CON EL AVISO ANTERIOR PORQUE HA FALTADO EN TOMAR MEDIDAS REQUERIDAS RESPECTO A ESTE CASO. SI USTED NO ACUTA DENTRO DE DIEZ (10) DIAS DESDE LA FECHA DE ESTA NOTICIA, ES POSIBLE QUE UN FALLO SERIA RESlTRADO CONTRA USTED SIN UNA AUDENClA Y USTED PODRIA PERDER SU PROPIEDAD O OTROS DERECHOS IMPORTANTES. USTED DEBE LLEVAR ESTA NOTIClA A SU ABOGADO EN SEGUIDA. SI USTED NO TIENE ABOGADO O NO TIENE CON QUE PAGAR LOS SERVICIOS DE UN ABAOGADO, VAYA O LLAME A LA OFICINA ABA JO PARA AVERIGUAR A DONDE USTED PUEDE OBTENER LA AYUDA LEGAL. Cumberland County Bar Association 2 Liberty Avenue Carlisle, PA 17013 (717)240-3!66 or (800) 990-9108 HARSCO CORPORATION, GAS & FLUID CONTROL GROUP, Plaintiff VS, PROPANE EXPRESS, LLC EXPRESS OIL, INC. AND ROBERT K. DESIDERIO, Defendants IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION-LAW NO. 04-358 CIVIL TERM TO THE PROTHONOTARY: PRAECIPE Please mark the judgment satisfied of record in the above captioned matter. PURCELL, KRUG & HALLER (717) 234-4178 Date: