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HomeMy WebLinkAbout00-05069MIKE GARDNER, Plaintiff V. STILES R. MADER, Defendant COURT OF COMMON PLEAS CUMBERLAND COUNTY, PA NO- CIVIL ACTION - LAW JURY TRIAL DEMANDED NOTICE TO DEFEND AND CLAIM RIGHTS YOU HAVE BEEN SUED IN COURT. If you wish to defend against the claims set forth in the following pages, you must take action within twenty (20) days after this Complaint and Notice are served, by entering a written appearance personally or by attorney and filing in writing with the Court your defenses or objections to the claims set forth against you. You are warned that if you fail to do so the case may proceed against you and a judgment may be entered against you by the court without further notice for any money claimed in the Complaint or for any other claim or relief requested by the Plaintiff. You may lose money or property or other rights important to you. YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE 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 LAWYER REFERRAL SERVICES One Courthouse Square Fourth Floor Carlisle, PA 17013 (717) 697 - 0371 AVISO Le han demando a usted en la corte. Si usted quiele defenderse de estas ' demandas expuestas en las paginas siguientes, usted tiene viente (20) dias de plazo at partir de la fecha de la demanda y la notification. Usted debe presentar una apariencia escrita o en persoa o por abogado y archivar en la corte enforma escrita sus defensas o sus objections a las demandas en contra de su persona. Sea avtsado que si usted no se defiende, la corte tomara medidas y puede entrar una orden contra usted sin previo aviso o notification y por cuaiguier queja o alivio que es pedido en is petition de demanda. Usted puede perder dinero o sus propiedades o otros derechos importanted para useted.. LLEVE ESTA DEMANDA A UN ABOGADO INMEDIATAMENTE St NO TIENE ABOGADO O SI NO TIENE DINERO SUFICIENTE DE PAGAR TAL SERVICO, VAYA EN PERSONA O LLAME POR TELEFONO A LA OFICINA CUYA DIRECCION SE ENCUENTRA ESCRITA ABAJO PARA AVERIGUAR DINDE SE PUEDE COSEGUIR ASISTENCIA LEGAL. CUMBERLAND COUNTY LAWYER REFERRAL SERVICES One Courthouse Square Fourth Floor Carlisle, PA 17013 (TIT) 697 - 4371 Darrell C. Dethlefs?,ll=squire 3805 Market Street P.O. Box 368 Camp Hill, PA 17001 (717) 975 - 9446 Atty. Id. No. 56805 Y ? A P MIKE GARDNER, Plaintiff V. STILES R. MADER, Defendant COURT OF COMMON PLEAS CUMBERLAND COUNTY, PA NO. ".5069 C?? ??ev® CIVIL ACTION - LAW JURY TRIAL DEMANDED COMPLAINT 1. The Plaintiff Mike Gardner is an adult individual with an address of P.O. Box 220, Plainfield, PA. 2. The Defendant Stiles R. Mader is an adult individual with an address of 164 12th Street, New Cumberland, PA 17070. 3. On or about May 5, 1998, the Plaintiff sold to the Defendant the following: a. a red and silver 1979 Chevy Dump Truck having VIN#CJ9Z180964; b. an interstate 48,000 pound trailer having VIN#1JKDLA202SA200230; and c. a D41 Kamatsu Crawler. 4. The purchase price for the three pieces of equipment was $65,000.00. See attached hereto as Exhibit "K a true and correct copy of the Bill of Sale. 5. The Defendant executed a Note dated May 5, 1998 in the amount of $51,500.00. See attached hereto as Exhibit "B" a true and correct copy of the note. 6. The Defendant also executed a Note dated May 5, 1998 in the amount of $13,500.00. See attached hereto as Exhibit "C" a true and correct copy of,the Note. 7. The Defendant executed a Security Agreement dated May 5, 1998. See attached hereto as Exhibit "D" a true and correct copy of the Security Agreement. 8. The Defendant has not made payments on the notes since December 29, 1998. 9. The Defendant has not made payments on the notes since December 29, 1998 despite requests from the Plaintiff to do so. 10. The Defendant made payments of $12,294.00 on the larger note and payments in the amount of $6,697.00 on the other note. 11. The Defendant is in default on the larger note and $53,359.27 is due on that note. 12. The Defendant is in default on the smaller note and $10,513.11 is due on that note. WHEREFORE, the Plaintiff demands judgment in his favor and against the Defendant in an amount in excess of $35,000 and in an amount in excess of the amount requiring compulsory arbitration. Darrell C. Dethlefs, E quire i 3805 Market Street P,O. Box 368 Camp Hill, PA 17001 (717) 975 - 9446 Atty. Id. No. 58805 VERWI ATION I hereby verify that the statements of fact made in the foregoing Complaint are true and correct to the best of my knowledge, information and belief. I understand that any false statements therein are subject to the criminal penalties contained in 18 Pa C. S. Section 4904, relating to unworn falsification to authorities. Date: Ni4cl CHAEL G NER BILL OF SALE WKNOW ALL MEN BY THESE PRES that MICHAEL GARDNER (collectively "Seller"), of Cumberlan County, Pennsylvania, for C,VV an?f? in consideration of the sum of -five Thousand Dollars ;(,5,000.00) and other good considera i? the receipt of which is hereby acknowledged, hereby sell, grant, convey and transfer unto STILES MADER ("Buyer"), an adult individual of Cumberland County, Pennsylvania, the following: ALL of DEBTOR's interest in: (1) a red and silver 1979 Chevy Dump Truck having VIN# CM180964 ; (2) an Interstate 48,000 pound trailer having VIN#1JKDLA202SA200?30 and, (3) a D41 Kamatsu Crawler. The assets are purchased in "AS-IS" condition, limited to the warranties set-forth herein. Buyers acknowledge receipt of the PURCHASED ASSETS. Buyers recognize and warrant that no warranties, express or implied, including warranties of fitness for purpose or merchantability are being given and that Buyers have inspected the equipment. Seller does hereby represent and warrant that he is the owner of such assets, and that they are free from all encumbrances and liens of any kind, and that he have a right to sell such aforesaid assets. This Bill of Sale, together with the Installment Notes, Security Agreement, and other incidental documents constitute the entire agreement of the parties. No prior oral or written representations shall be used to modify the terms hereto or the transactions contemplated herein. Buyer has inspected the assets being sold, or has been given an opportunity to in.4pect the assets being conveyed under this Agreement. Buyer shall be responsible for the cost of filing any UCC-1 and/or UCC-3 required by the Sellers. IN WITNESS WHEREOF, Michael Gardner has executed this Bill of Sale the date set-forth below. MICA L GARDNER d STILES MADER Date: a G t? h CSC c/} C - ,:.I J u CD U NOTE (Fixed Rate) May 5, 1998 New Cumberland Pennsylvania [City] [State] 164 12th Street New Cumberland, PA 17070 1. BORROWER'S PROMISE TO PAY In return fora loan that I have received, I promise to pay U.S. $51,500.00 (this amount is called "principal"), plus interest, to the order of the Lender. The Lender is Mike Gardner, P. 0. Box 220, Plainfield, Pennsylvania. I understand that the Lender may transfer this Note. The Lender or anyone who takes this Note by transfer and who is entitled to receive payments under this Note is called the "Note Holder". 2. INTEREST Interest will be charged on unpaid principal trail the full amount of principal has been paid I will pay interest at a yearly rate of 10%. The interest rate required by this Section 2 is the rate I will pay both before and after any default described in Section 6(B) of this Note. 3. PAYMENTS (A) Time and Place of Payments I will pay interest by making payments every month. I will make my monthly payments on the 5th day of each month beginning on June 5, 1998 1 will make these payments every month until I have paid all of the principal and interest and any other charges described below that I may owe under this Note. My monthly payments will be applied to interest before principal. If, on May 5, 2003,1 still owe amounts under this Note, I will pay those amounts in full an that date, which is called the "maturity date." I will make my monthly payments at Mike Gardner, P. 0. Box 220, Plainfield, PA 17081 or at a different place if required by the Note Holder. (6) Amount of Monthly Payments My monthly payment will be in the amount of U.S. $1,095.00. 4. BORROWER'S RIGHT TO PREPAY I have the right to make payments of principal at any time before they are due. A payment of principal only is known as a "prepayment." When I make a prepagment, I will tell the Note Holder in writing that I am doing so. I will make a full prepayment or partial prepayments without paying any prepayment charge. The Note Holder will use all of my prepayments to reduce the amount of principal that I owe under this Note. If I make a partial prepayment, there will be no changes in the due date or in the amount of my monthly payment unless the Note Holder agrees in writing to those changes. 5. LOAN CHARGES If a law, which applies to this loan and which sets maximum loan charges, is finally interpreted so that the interest Drother loan charges collected or to be collected in connection with this loan exceed the permitted limits, then: (i) any such loan charge shall be reduced by the amount necessary to reduce the charge to the permitted limit; and (ii) any sums already collected from me which exceeded permitted limits will be refunded to me. The Note Holder may choose to make this refund by reducing the principal I owe under this Note or by making a direct payment to me. If a refund reduces principal, the reduction will be treated as a partial prepayment. 6. BORROWER'S FAILURE TO PAY AS REQUIRED (A) Late Changes for Overdue Payments If the Note Holder has not received the full amount of any monthly payment by the and of Fifteen calendar days afterthe date it is due, I will pay a late charge to the Note Holder. The amount of the charge will be 5.00% of my overdue payment of principal and interest. I will pay this late charge promptly but only once on each late payment. (B) Default If I do not pay the full amount of each monthly payment on the date it is due, I will be in default. (C) Notice of Default If I am in default, the Note Holder may send me a written notice telling me that if I do not pay the overdue amount by a certain date, the Note Holder may require me to pay immediately the full amount of principal which has not been paid and all the interest that I owe on that amount. That date must be at least 30 days after the date on which the notice is delivered or mailed to me. SA-1114 "ey initialing, the Borrower(s) acknowledge(s) that this page is Initials Initials page 1 of 2 of the Multistate Fixed Rate Note" (D) No Waiver By Note Holder Even if, at a time when I am in default, the Note Holder does not require me to pay immediately in full as described above, the Note Holder will still have the right to do so if I am in default at a later time. (E) Payment of Note Holders Costs and Expenses If tIIhe Note Holder has required me to pay immediately in full as described above, the Note Holder will have: the right to be paid back by me for all of its costs and expenses in enforcing this Note to the extent not;pIrohibited by applicable law. Those expenses include, for example, reasonable attorneys' fees. 7. GIVING OF NOTICES Unless applicable law requires a different method, any notice that must be given to me under this Note will b;s,givsn bg delivering it or by mailing it by first class mail to me at the Property Address above prat a different address if I give the Note Holder a notice of my different address. Anynotice that must be given to the Note Holder under this Note will be given by mailing it by first class mail to the Note Holder at the address stated in Section 3(A) above or at a different address if I am given anotice of that different address. 0. OBLIGATIONS OF PERSONS UNDER THIS NOTE If more than one person signs this Note, each person is fully and personally obligated to keep all of the promises made in this Nate, including the promise to peg the full amount owed. Any person who is a guarantor, surety orandorser of this Note is also obligated to do these things. Any person who takes over these obligations, including the obligations of a guarantor, surety or endorser of this Note, is also obligated to keep all of the promises made in this Note. The Note Holder may enforce its rights under this Note against each person individually or against all of us together. This means that any one of us may be required to pay all of the amounts owed under this note. 9. WAIVERS I and any person who has obligations under this Note waive the rights of presentmerd and notice of dishonor. "Presentment" means the right to require the Note Holder to demand payment of amounts due. "Notice of dishonor" means the right to require the Note Holder to give notice to other persons that amounts due have not been paid. 10. UNIFORM SECURED NOTE This Note is a uniform instrument with limited variations in some jurisdictions. In addition to the protections given to the Note Holder under this Note, a Mortgage, Deed of Trust or Security Deed (the "Security Instrument'), dated the same date as this Note, protects the Note Holder from possible losses which might result if I do not keep the promises which I make in this Note. That Security Instrument describes how and under what conditions I may be required to make immediate payment in full of all amounts I owe under this Note. Some of those conditions are described as follows: Transfer of the Property or a Beneficial Interest in Borrower. If all or any part of the Property or any interest in it is sold ortransferred (orif a beneficial interest in Borrower is sold or transferred and Borrower is not a natural, person) without Lenders prior written consent, Lender may, at its option, require immediate payment in full of all sums secured by this Security Instrument. However, this option shall not be exercised by Lender if exercise is prohibited by federal law as of the date of this Security Instrument. If Lenderexercises this option, Lender shall give Borrower notice of acceleration. The notice shall provide a period of not less than 30 days from the date the notice is delivered or mailed within which Borrower must pay all sums secured by this Security Instrument. If Borrower fails to pay these sums prior to the expiration of this period, Lender may invoke any remedies permitted by this Security Instrument without further notice or demand on Borrower. WITNESS THE HAND(S) AND SEAL(S) OF THE UNDERSIGNED WITNES 1n/ ..?1 ?e CW'", (SEAL) STILES MADER Borrower By initialing, the Barrower(s) acknowledge(s) that this page is Initials Initials page 2 of 2 of the Multistate Fixed Rate Note" NOTE (Fixed Rate) May 5, 1998 New Cumberland Pennsylvania [City] [State] 164 12th Street New Cumberland, PA 17070 1. BORROWER'S PROMISE TO PAY In return fora loan that I have received, I promise to pay U.S. $13,500.00 (this amount is called "principal"), plus interest, to the order of the Lender. The Lender is Mike Gardner, P. G. Box 220, Plainfield, Pennsylvania. I understand that the Lender may transfer this Note. The Lender or anyone who takes this Note by transfer and who Is entitled to receive payments under this Note is called the "Note Holder". 2. INTEREST Interest will be charged on unpaid principal until the full amount of principal has been paid I will pay interest at a yearly rate of 10%. The interest rate required by this Section 2 is the rate I will pay both before and after any default described in Section 6(8) of this Note. 3_ PAYMENTS (A) Time and Place of Payments I will pay interest by making payments every month. I will make my monthly payments on the 5th day of each month beginning on June 5, 1998 1 will make these payments every month until I have paid all of the principal and interest and any other charges described below that I may owe under this Note. My monthly payments will be applied to interest before principal. If, on May 5, 2003,1 still owe amounts under this Note, I will peg those amounts in full on that date, which is called the "maturity data" I will make my monthly pagme is at Mike Gardner, P. o. Box 220, Plainfield, PA 17081 or at a different place if required by the Note Holder. (8) Amount of Monthly Payments My monthly payment will be in the amount of U.S. $287.00. 4. BORROWER'S RIGHT TO PREPAY I have the right to make payments of principal at any time before they are due. A payment of principal only is known as a "prepayment" When I make a prepayment, I will tell the Note Holder in writing that I am doing so. I will make a full prepayment or partial prepayments without paying any prepagment charge. The Note Holder will use all of my prepayments to reduce the amount of principal that I owe under this Note. If I make a partial prepayment, there will be no changes in the due date or in the amount of my monthly payment unless the Note Holder agrees in writing to those changes. 5. LOAN CHARGES If a law, which applies to this loan and which sets maximum loan charges, is finally interpreted so that the interest orother loan charges collected or to be collected in connection with this loan exceed the permitted limits, then: 0) any such loan charge shall be reduced by the amount necessary to reduce the charge to the permitted limit; and (ii) any sums already collected from me which exceeded permitted limits will be refunded to me. The Note Holder may choose to make this refund by reducing the principal I owe under this Note or by making a direct payment to ma If a refund reduces principal, the reduction will be treated as a partial prepayment. 6. BORROWER'S FAILURE TO PAY AS REQUIRED (A) Late Charges for Overdue Payments If the Nate Holder has not received the full amount of any monthly payment by the and of Fifteen calendar days afterthe date it is due, I will pay a late charge to the Note Holder. The amount of the charge will be 5.00% of my overdue payment of principal and interest. I will pay this late charge promptly but only once on each late payment. (B) Default If I do not pag the full amount of each monthly payment on the date it is due, I will be in default. (C) Notice of Default. - If I am in default, the Note Holder may send me a written notice telling me that if I do not pay the overdue amount by a certain date, the Note Holder may require me to pay Immediately the full amount of principal which has not been paid and all the interest that I owe on that amount. That date must be at least 30 days after the date on which the notice is delivered or mailed to me. &/2 "By initialing, the Borrower(s) acknowledge(s) that this page is Initials Initials page 1 of 2 of the Multistate Fixed Rate Note:' (D) No Waiver Bg Note Holder Even if, at a time when I am in default, the Note Holder does not require me to pay immediately in full as described above, the Note Holder will still have the right to do so if I am in default at a later time. (E) Payment of Note Holders Costs and Expenses If the Note Holder has required me to pay immediately in full as described above, the Note Holder will have the right to be paid back bg me for all of its. costs and expenses in enforcing this Note to the extent not prohibited bg applicable low. Those expenses include, for example, reasonable attorneys' fees. 7. GIVING OF NOTICES ` Unless applicable law requires a different method, any notice that must be given tome under this Note will be given by delivering it or by mailing it by first class mail to me at the Property Address above or at a'pifferent address if I give the Note Holder a notice of my different address. Anyl,notice that must be given to the Note Holder under this Note will be given by mailing it by first class mail to the Note Holder at the address stated in Section 3(A) above or at a different address if I am given a notice of that different address. 0. OBLIGATIONS OF PERSONS UNDER THIS NOTE If more than one person signs this Note, each person is fully and personally obligated to keep all of the promises made in this Note, including the promise to pay the full amount owed. Any person who is a guarantor, surety or endorserof this Note is also obligated to do these things. Any person who takes over these obligations, including the obligations of a guarantor, surety or endorser of this Note, is also obligated to keep all of the promises made in this Note. The Note Holder may enforce its rights under this Note against each person individually or against all of us together This means that any one of us may be required to pay all of the amounts owed underthis note. 9. WAIVERS I and any person who has obligations under this Note waive the rights of presentment and notice of dishonor. "Presentment" means the right to require the Note Holder to demand payment of amounts due. "Notice of dishonor" means the right to require the Note Holder to give notice to other persons that amounts due have not been paid. 10. UNIFORM SECURED NOTE This Note is a uniform instrument with limited variations in some jurisdictions. In addition to the protections given to the Note Holder under this Note, a Mortgage, Deed of Trust or Security Deed (the "Security Instrument'), dated the same date as this Note, protects the Note Holder from possible losses which might result if I do not keep the promises which I make in this Note. That Security Instrument describes how and under what conditions I may be required to make immediate payment in full of all amounts I owe under this Note Some of those conditions are described as follows: Transfer of the Property or a Beneficial Interest in Borrower. If all or any part of the Property or any interest in it is sold or transferred (or if a beneficial interest in Borrower is sold or transferred and Borrower is not a natural person) without Lenders prior written consent, Lender may, at its option, require immediate payment in full of all sums secured by this Security Instrument. However, this option shall not be exercised by Lender if exorcise is prohibited by federal law as of the date of this Security Instrument. If Lenderexercises this option, Lender shall give Borrower notice of acceleration. The notice shall provide a period of not less then 30 days from the date the notice is delivered or mailed within which Borrower must pay all sums secured by this Security Instrument. If Borrower fails to pay these sums prior to the expiration of this period, Lender may invoke any remedies permitted by this Security Instrument without further notice or demand on Borrower. WITNESS THE HAND(S) AND SEAL(S) OF THE UNDERSIGNED WITNESS: (SEAL) STILES MADER Borrower Sep-l By initialing, the Borrower(s) acknowledge(s) that this page is Initials Initials page 2 of 2 of the Multistate Fixed Rate Note" NOTE (Fixed Rate) May 5, 1998 New Cumberland Pennsylvania [City] [State] 164 12th Street New Cumberland, PA 17070 1. BORROWER'S PROMISE TO PAY In return fora loan that I havereceived, I promise to pay U.S. $13,500.00 (this amount Is called "principal'), plus interest, to the order of the Lender. The Lender is Mike Gardner, P. 0. Box 220, Plainfield, Pennsylvania. I understand that the Lender may transfer this Note. The Lender or anyone who tokes'Shis Note by transfer and who Is entitled to receive payments under this Note is called the "Note Holder". 2. INTEREST Interest will be charged on unpaid principal until the full amount of principal has been paid I will pay interest at a yearly rate of I OR. The interest rate required by this Section 2 is the rate I will pay both before and after any default described in Section 6(0) of this Note. 3. PAYMENTS (A) Time and Place of Payments I will pay interest by making payments every month. I will make my monthly payments on the 5th dag of each month beginning on June 5, 1999 1 will make these payments every month until I have paid all of the principal and interest and any other charges described below that I may owe under this Note. My monthly payments will be applied to interest before principal. If, on May 5, 2003,1 still owe amounts under this Note, I will pay those amounts in full on that date, which is called the "maturity date:' I will make my monthly payments at Mike Gardner, P. D. Box 220, Plainfield, PA 17061 or at a different place if required by the Note Holder. (B) Amount of Monthly Payments My monthly payment will be in the amount of U.S. $267.00. 4. BORROWER'S RIGHT TO PREPAY I have the right to make payments of principal at any time before they are due. A payment of principal only is known as a "prepagment" When I make a prepagment, I will tell the Note Holder in writing that I am doing so. I will make a full prepayment or partial prepayments without paying any prepayment charge. The Note Holder will use all of my prepayments to reduce the amount of principal that I owe under this Note. If I make a partial prepayment, there will be no changes in the due date or in the amount of my monthig payment unless the Note Holderagrees in writing to those changes. 5. LOAN CHARGES If a law, which applies to this loan and which sets maximum loan charges, is finally interpreted so that the interest or other loan charges collected or to be collected in connection with this loan exceed the permitted limits, then: (t) any such loan charge shall be reduced by the amount necessary to reduce the charge to the permitted limit; and (ii) any sums already collected from me which exceeded permitted limits will be refunded to me. The Note Holder may choose to make this refund by reducing the principal I owe under this Note or by making a direct payment to me. If a refund reduces principal, the reduction will be treated as a partial prepayment. 6. BORROWER'S FAILURE TO PAY AS REQUIRED (A) Late Charges for Overdue Payments If the Note Holder has not received the full amount of any monthly payment by the end of Fifteen calendar days afterthe date it is due, I will pay a late charge to the Note Holder. The amount of the charge will be 5.00X of my overdue payment of principal and interest. I will pay this late charge promptly but only once on each late payment. (B) Default If I do not pay the full amount of each monthly payment on the date it is due,1 will be in default. (C) Notice ofDefault If I am in default, the Note Holder may send me a written notice telling me that if I do not pay the overdue amount by a certain date, the Note Holder may require me to pay immediately the full amount of principal which has not been paid and all the interest that I owe on that amount. That date must be at least 30 days after the date on which the notice is delivered or mailed to me. a, By Initialing, the Borrower(s) acknowledge(s) that this page is Initials Initi CIS page 1 of 2 of the Multistate Fixed Rate Note" (D) No Waiver By Note Holder Even if, at a time when I am in default, the Note Holder does not require me to pay immediately in full'as described, above, the Note Holder will still have the right to do so if I am in default at a later time. (E) Payment of Note Holder's Costs and Expenses If the Note Holder has required me to pay immediatelg in full as described above, the Note Holder will have the right to be paid back by me for all of its costs and expenses in enforcing this Note to the extent not prohibited by applicable law. Those expenses include, for example, reasonable attorneys' fees. 7. ',GIVING OF NOTICES Unless applicable law requires a different method, any notice that must be given tome under this Note will be given by delivering it or by mailing it by first class mail to meat the Property Address above or at a different address if I give the Note Holder a notice of my different address. Any notice that must be given to the Note Holder under this Note will be given by mailing it by first class mail to the Note Holder at the address stated in Section 3(A) above or at a different address if I am given a notice of that different address. 0" OBLIGATIONS OF PERSONS UNDER THIS NOTE If more then one person signs this Note, each person is fully and personally obligated to keep all of the promises made in this Note, including the promise to pay the full amount owed. Any person who is a guarantor, surety or endorser of this Note is also obligated to do these things. Any person who takes over these obligations, including the obligations of a guarantor, surety orendofserof this Note; is also obligated to keep all of the promises made in this Note. The Note Holder may enforce its rights' under this Note against each person individually or against all of us together. This means that any one of us may be required to pay all of the amounts owed under this note. 9. WAIVERS I and any Person who has obligations under this Note waive the rights of presentment and notice of dishonor. "Presentment" means the right to require the Note Holder to demand payment of amounts due. "Notice of dishonor" means the right to require the Note Holder to give notice to other persons that amounts due have not been paid. 10. UNIFORM SECURED NOTE This Note is a uniform instrument with limited variations in some jurisdictions. In addition to the protections given to the Note Holder under this Note, a Mortgage, Deedof Trust or Security Deed (the "Security Instrument'), dated the same date as this Note, protects the Note Holder from possible losses which might result if I do not keep the promises which I make in this Note. That Security Instrument describes how and under what conditions I may be required to make immediate payment in full of all amounts I owe under this Note. Some of those conditions are described as follows: Transfer of the Property or a Beneficial Interest in Borrower. If all or any part of the Property or any Interest in it is sold or transferred (or if a beneficial interest in Borrower is sold or transferred and Borrower is not a natural person) without Lenders prior written consent, Lendermay, at its option, require immediate payment in full of all sums secured by this Security Instrument. However, this option shall not be exercised by Lender if exercise is prohibited by federal law as of the date of this Security Instrument. If Lenderexercises this option, Lender shall give Borrower notice of acceleration. The notice shall provide a period of not less than 30 days from the date the notice is delivered or mailed within which Borrower must pay all sums secured by this Security Instrument. If Borrower fails to pay these sums prior to the expiration of this period, Lender may. invoke any remedies permitted by this Security Instrument without further notice or demand on Borrower. WITNESS THE HAND(S) AND SEAL(S) OF THE UNDERSIGNED WITNESS: f e'?> 1rC ?G'r?G t( (SEAL) STILES MADER Borrower Srpl ..By Initialing, the Borrower(s) acknowledge(s) that this page is Initials Initials page 2 of 2 of the Multistate Fixed Rate Note" SECURITY AGREEMENT THIS SECURITY AGREEMENT, made this 5th day of May, 1998, by and between: STILES MADER, having an address of 164 12th Street, New Cumberland, Cumberland County, Pennsylvania (hereinafter individually and collectively referred to as "DEBTOR"), AND MIKE GARDNER, tla Gardner Construction Company, having an address of P. 0. Box 220, Plainfield, Cumberland County, Pennsylvania (hereinafter referred to as "SECURED PARTY"). .WITNESSETH THAT, in orderto provide security and collateral for the purchase money financing of a sale by SECURED PARTY to DEBTOR of certain assets as set-forth in a certain Note, as amended, extended or modified, by DEBTOR to SECURED PARTY, being hereinafter referred to as the "LOAN", and intending to be legally bound, DEBTOR grants to SECURED PARTY a security interest in the following property, assets, and rights to secure the payment of the LOAN and the performance by DEBTOR or all obligations in the referenced agreements: ALL of DEBTOR's interest in a red and silver 1979 Chevy Dump Truck, having VINE` CJ9Z180964 ; Interstate 48,000 pound trailer having VIN*lJKDLA202SA200230 and a D41 Ka m atsu Crawler. The security interest granted hereby shall extend to the proceeds, and products of such property, as well as all replacements, substitutions, additions and accessions thereto, and any property which DEBTOR may receive on account of such property, assets, or rights, including any insurance proceeds for losses sustained with respect to any of such property, assets, or rights. All of the foregoing property, assets, and rights are hereinafter referred to as the "Collateral". This security interest shall secure all sums advanced and loaned by SECURED PARTY to DEBTOR, including future advances, and including principal and interest, together with all costs and expenses incurred by SECURED PARTY in the collection and enforcement of the LOAN and any constituent notes and evidences of indebtedness of DEBTOR to SECURED PARTY thereunder, as well as all expenditures of SECURED PARTY for taxes, levies, insurance repairs to, and maintenance of the property, assets, and rights which are the subject of this Security Agreement. DEBTOR waives the right to assert against any assignee of SECURED PARTY, or any subsequent assignee, any defense, counterclaim or setoff which DEBTOR could assert against the SECURED PARTY in an action brought by SECURED PARTY upon the Loan (or any constituent part thereof) or upon this Security Agreement. Until default, DEBTOR is entitled to possession of all property, assets, and rights (the Collateral) in which a security interest has been given to SECURED PARTY, except that portion of the Collateral where possession is required in order for SECURED PARTY to perfect his security interest. SECURED PARTY may: 1. Enter upon DEBTOR's premises at any reasonable time to inspect the Collateral and DEBTOR shall assist SECURED PARTY in whatever way necessary to make any inspections; and/or 2. By any employee or employees: designate, execute, sign, endorse, transfer or deliver in the name of the DEBTOR, certificates of origin, applications for certificates of title, financing statements or any other documents, necessary to evidence and/or perfect the security interest granted by this Security Agreement. DEBTOR shall pay to SECURED PARTY any sums advanced by SECURED PARTY under the aforesaid Note, together with all interest, in accordance with the terms of the instruments, documents and agreements which may be executed from time to time. DEBTOR shall account fully and faithfully to SECURED PARTY upon demand for the proceeds in whatever form received in disposition, in any manner, including insurance proceeds, of all the Collateral. DEBTOR shall pay, without notice or demand of any kind except as provided for in any note, document and/or instrument secured by this Security Agreement, any or all liabilities secured by this Agreement, which shall become due and payable (without further demand or notice) upon default of the Note or breach of the terms hereof, or the terms of any instrument evidencing indebtedness. DEBTOR shall pay all expenses and reimburse SECURED PARTY for all costs and expenses of SECURED PARTY in connection with SECURED PARTY's exercise of any of their rights and remedies under this Security Agreement, including reasonable attorneys' fees equal to five percent (59) of the unpaid balance of the principal amount plus unpaid interest or $500.00 whichever is greatest, and also those costs and expenses of any repairs to any realty or other property to which any of the Collateral may be affixed. DEBTOR shall be in default under this Agreement upon the happening of any of the following events or conditions: 1. If DEBTOR becomes insolvent or unable to pay debts as they mature or makes an assignment for the benefit of creditors, or any proceeding is instituted by or against DEBTOR alleging that DEBTOR is insolvent or unable to pay debts as they mature and such proceeding remains undismissed for ninety (90) days, or 2. The. entry of any judgment against DEBTOR which remains unsatisfied for a period of ninety (90) days or which has not been secured or stayed by a supersedeas or other bond; or 3. The issuing of any attachment or garnishment, or the filing of any lien (other than a judgment lien or lien created by the docketing of a writ or execution) which remains unsatisfied for a period of thirty (30) days. 4. DEBTOR's default under any of the terms and conditions of the Note. 5. DEBTOR's sale of any of the collateral outside of the normal course of business. 6. The granting, whether voluntary or involuntary, of any lien, security interest or encumbrance on the collateral (or any part thereof), other than the security interest herein granted. DEBTOR shall be in default under this Agreement upon the happening of any of the following events or conditions: 1. Any warranty, representation or statement made or furnished to SECURED PARTY by or on behalf of any DEBTOR that was false in any material respect when made or furnished; or 2. Loss of, theft of, substantial damage to, or destruction of, any of the Collateral (without SECURED PARTY's prior written agreement) except in the ordinary course of business; or the making of any levy, seizure, or attachment of or on any of the Collateral; 3. Appointment of a receiver for all or any part of the Collateral; 4. Any incorporation, dissolution, merger, re capitalization, consolidation, or reorganization involving or affecting the DEBTOR or the Collateral not agreed to by SECURED PARTY. 5. A transfer of control of the DEBTOR or a substantial change in the management of the DEBTOR, not agreed to by SECURED PARTY; 6. Failure to promptly provide financial reports to SECURED PARTY-as they may request from time to time; or 7. Failure to pay trade creditors.when due. Upon DEBTOR's default, SECURED PARTY shall have all of the rights and remedies provided by the Uniform Commercial Code in effect in the Commonwealth of Pennsylvania at the date of execution of this Agreement; and in addition to, in conjunction with, or in substitution for those rights and remedies, SECURED PARTY and its agents may: I . (a) Require DEBTOR to assemble the Collateral and to make it available to SECURED PARTY at a place SECURED PARTY designates which is mutually convenient, to allow SECURED PARTY to take possession or dispose of the Collateral; and (b) Remedy any default and may waive any default without waiving the default remedies or without waiving any other prior or subsequent default; and (c) Discharge taxes, liens or security interests or other encumbrances at any time levied or placed on the Collateral, whether subordinate in priority to its security interest or not, pay for insurance on the Collateral, and pay for the maintenance and preservation of the Collateral. DEBTOR agrees to reimburse SECURED PARTY on demand for any payment made, or any expense incurred, by SECURED PARTY, pursuant to this authorization and all such payments by SECURED PARTY shall bear interest at the rate of ten percent (10%) per annum, from the date paid by SECURED PARTY; and (d) Enter into or onto any premises where the Collateral may be located for the purpose of taking possession of it. 2. Notify the account debtors or obligors of any accounts, chattel paper, negotiable instruments or other evidences of indebtedness, remitted by DEBTOR to SECURED PARTY as proceeds, to pay SECURED PARTY directly. If the proceeds of sale or other lawful disposition by SECURED PARTY of the Collateral Following its taking are insufficient to pay the expenses of taking, holding, preparing the Collateral for sale, selling it and the like, and to satisfy all obligations and indebtedness secured hereby, then DEBTOR agrees to pay any deficiency, but DEBTOR shall be entitled to any surplus if one results after lawful application of such proceeds. If the Collateral, or any item thereof, shall be disposed of at private sale under any agreement whereby all or part of the sale price is payable in installments, the cash selling price thereof (exclusive of finance charge, interest and any insurance premiums) shall be credited against DEBTOR's indebtedness secured hereby. DEBTOR represents and covenants: (1) that the address shown at the head of this Security Agreement is, in fact, DEBTOR's chief executive office; (2) that the Collateral shall at all times be considered as personal property; (3) that the Collateral is not and wi11 not be so affixed or related to the realty of DEBTOR or of any other person as to be part thereof or become in any sense a fixture, or if the Collateral has become a fixture before SECURED PARTY's security interest therein is perfected and the Collateral is or may become subject to the lien of a real estate mortgage, that DEBTOR will, on demand of SECURED PARTY, furnish the latter with a writing by which the real estate mortgagee subordinates its rights and priorities to SECURED PARTY's security interest hereunder; (4) that if the Collateral is or may become subject to the lien of a landlord, that DEBTOR will, on demand of SECURED PARTY furnish the latter with a landlord's waiver satisfactory to SECURED PARTY; (5) that the Collateral will be kept in as good condition and repair as it now is and will not be misused or abused, wasted or allowed to deteriorate, reasonable wear and tear excepted, and that the expense of any repairs and maintenance will be borne solely by DEBTOR; (6) that Collateral will not be permitted to become an accession to other goods or property not owned by DEBTOR or on which SECURED PARTY does not have a security interest of equal priority; (7) that the Collateral will not be used or be permitted to be used illegally; (8) that the Collateral will be kept at the DEBTOR's place of business in Cumberland County, Pennsylvania where SECURED PARTY may inspect said Collateral at any time, except for its temporary removal in connection with its ordinary use, or unless DEBTOR notifies SECURED PARTY in writing and SECURED PARTY's consent in writing, in advance of its removal to another location; (9) that. DEBTOR will pay promptly all taxes and assessments on the Collateral, its use or operation, and on the LOAN and all constituent notes and instruments; (10) the DEBTOR will not abandon, conceal, injure, or destroy the Collateral, nor deface any identifying marks thereon; (11) that DEBTOR will not sell, transfer dispose of, lease, assign, or encumber the Collateral, except for sales of inventory in the ordinary course of business as contemplated by Section 9-205 of the Uniform Commercial Code, without SECURED PARTY's prior written consent (except subject to the security interest of SECURED PARTY), nor permit DEBTOR's rights in it to be reached or levied upon by judicial process; (12) that DEBTOR will keep the Collateral free of all liens, encumbrances and security interests except for the SECURED PARTY's security interest hereunder and the lien of taxes not delinquent; (13) that no injury to or loss or destruction of the Collateral shall relieve DEBTOR of its obligation to pay the indebtedness secured hereby; (14) that the Collateral will be insured by DEBTOR, until SECURED PARTY's security interest is terminated, against all expected risks to which it is exposed and those which SECURED PARTY may reasonably designate, with the policies and insurers acceptable to SECURED PARTY and payable to both SECURED PARTY and DEBTOR as their interest may appear, and with duplicate policies deposited with the SECURED PARTY. The Collateral shall be insured in an amount at least equal to its value. The policies also shall provide that no act or default of DEBTOR shall affect the right of the SECURED PARTY to recover under said policy or policies. SECURED PARTY may apply any proceeds of the insurance it receives towards payment of the liabilities, whether due or not due, in such order of application as it may determine. Each policy shall provide for thirty (30) days written minimum cancellation notice to SECURED PARTY; (15) that if DEBTOR fails to obtain insurance as above- provided, or to observe or perform any of its other undertakings stated herein, SECURED PARTY may procure the insurance and perform said undertakings, and the cost and expense to SECURED PARTY in so doing will be added to the indebtedness secured hereby and will be payable by DEBTOR with interest to the date of payment at the rate of 10% per annum, to the SECURED PARTY on demand; (16) that the proceeds of any such insurance (including return premiums) may, at SECURED PARTY's option, be applied either to reduce the indebtedness secured hereby, or to repair or replace the Collateral and DEBTOR hereby authorizes SECURED PARTY, or SECURED PARTY's assigns, to endorse in the name of DEBTOR any check or draft issued by any carrier as insurance proceeds; (17) that DEBTOR will not permit anything to be done that may impair the value of any of the Collateral orthe security intended to be afforded by this Agreement, (18) that DEBTOR shall sign and execute alone, or with SECURED PARTY, any financing statement or other document, or procure any document, and pay all connected costs, including attorney's fees, necessary to protect the security interest under this Security Agreement against the rights or interest of third persons that there is no construction mortgage which would constitute a lien upon such property, assets or rights; (14) and that DEBTOR shall at all times keep accurate and complete records for the Collateral, and any property received on account of such Collateral, including any insurance proceeds for losses sustained with respect to such property, assets, or rights; q • IN WITNESS WHEREOF, the parties hereto, intending to be legally bound, have caused this Security Agreement to be executed the day and year first above-written. W ITNES s? STILES MADER WITNESS: a? GARDNER CONSTRUCTION COMPANY L MIKE GARDNER 9J V_ 2 SHERIFF'S RETURN - REGULAR CASE NO: 2000-05069 P COMMONWEALTH OF PENNSYLVANIA: COUNTY OF CUMBERLAND GARDNER MIKE MADER STILES R MCKINNEY , Sheriff or Deputy Sheriff of Cumberland County, Pensylvania, who being duly sworn according to law, says, the within COMPLAINT & NOTICE was served upon MADER STILES R the DEFENDANT VS , at 1430:00 HOURS, on the 28th day of July , 2000 at 409 GEARY AVE., APT. A NEW CUMBERLAND, PA 17070 by handing to JAMIE LU MADER, MOTHER OF DEFT. & ADULT IN CHARGE a true and attested copy of COMPLAINT & NOTICE together with and at the same time directing Her attention to the contents thereof. Sheriff's Costs: So Answers: Docketing 18.00 Service 10.54 7 Affidavit .00 Surcharge 10.00 R. Thomas Kline .00 38.54 08/01/2000 DARRELL C. DETHLEFS Sworn and Subscribed to before By: me this day of Deputy 'Sheriff