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HomeMy WebLinkAbout04-2517TAYLOR WHARTON GAS EQUIPMENT, A DMSION OF HARSCO CORPORATION, Plaintiff VS. CYRO WELD CORPORATION, Defendant : IN THE COURT OF COMMON PLEAS : CUMBERLAND COUNTY, PENNSYLVANIA : CIVIL ACTION-LAW NO. Oq - 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 32 S. Bedford Street 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 la demanda y la notificacion. Usted debe presentar una apariencia escrita o en persona o pot abogado y archivar en la corte en forma escrita 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 32 S. Bedford Street Carlisle, PA. 170'13 -- (717) 249-3166 (800) 990-9108 TAYLOR WHARTON GAS EQUIPMENT, A DIVISION OF HARSCO CORPORATION, Plaintiff CYRO WELD CORPORATION, Defendant : IN THE COURT OF COMMON PLEAS : CUMBERLAND COUNTY, PENNSYLVANIA : CML ACTION-LAW NO. Oc/- 2.~lq i. COMPLAINT 1. The Plaintiff is Taylor-Wharton Gas Equipment, a division of HARSCO Corporation, a corporation organized and existing under the laws of the state of Delaware, with an address of 350 Poplar Church Road, P.O. Box 8316, Camp Hill, Cumberland County, Pennsylvania 17001-8316. 2. The Defendant is Cryo Wold Corporation, a corporation organized and existing under the laws of the state of New York, with an address of 29 Noxon Road, Poughkeepsie, New York 12603. COUNTI 3. Paragraphs 1-2 are hereby incorporated by reference as if set forth at length. 4. On or about November 5, 1999, the Defendant entered into a Commercial Note pursuant to which it agreed to pay to the Plaintiff the sum of $76,838.10, in 59 consecutive inst~lruents of $1,604.37, 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". 5. The equipment referenced in the Note was shipped on December 10, 1999, making the first payment due 30 days thereafter. 6. The Defendant is presently in default on its payments on the Note. 7, There is presently due and owing to the Plaintiff by the Defendant the sum of $15,179.00 representing the unpaid balance on the Note, COUNTII 8. Paragraphs 1-2 are hereby incorporated by reference as if set forth at length. 9. In addition to the aforementioned Note obligation of the Defendant, Defendant also maintained an open account with the Plaintiff for the purpose of purchases on revolving open credit. 10. Defendant was required to pay the open account in full within 30 days of invoice. 11. The current balance on the open account is $5,772.60, which is more than 30 days overdue. 12. Pursuant to the terms of all of the aforementioned Note, the Defendant 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. 13. Plaintiff has made demand upon the Defendant for the full mount 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. WHEREFORE, Plaintiff requests this Honorable Court to enter Judgment in favor of the Plaintiff and against the Defendant in the amount of $20,951.60 as of April 30, 2004, plus continuing interest at the contract rate on the aforementioned Note, plus reasonable attorney's fees and costs of suit. Respectfully submitted, ~John~N. Purcell, Jr. ( m~29955 x~_~.719 North Front Street Harrisburg, PA 17102 (717) 234-4178 76,838.10 ,f ~) COII'IMERCIAL NOTE ( ~ November 5, 1999 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 Seventy-six Thousand Eight Hundred Thirty-eight and 10/100 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 o£$1,604.37 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 £mal 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 9.25% 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. Accrued 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 accrue 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 rote provided for in this Note until the entire unpaid balance has been paid in full, notwithstanding the entry of any judgment against Borrower. PAYMENT - 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 the amount by which the , aggregate present value of scheduled principal and interest payments eliminated by the prepayment exceeds the principal amount being prepaid. Said present value shall be calculated by application of a discount rate determined by Company, in its reasonable judgment, to be the yield-to-maturity plus 1.15% at the time of prepayment, on U.S. Treasury securities having a maturity which most closely approximates the final maturity date of the principal balance then outstanding. Whether or not a prepayment fee is required hereunder, 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. Notwithstanding, any provision contained herein, the maximum prepayment to be paid by Borrower under this Note shall not exceed the foregoing expressed as a percent of the outstanding principal balance being prepaid: Fully 1st 2nd 3rd 4th 5th Amortized Year Year Year Year Year I 2.00% 2 2.50% 2.00% 3 3.50% 3.00% 2.00% 4 4.00% 3.50% 3~00% 2.00% 5 5.00% 4.00% 3.50% 3.00% 2.00% COLLATERAL - This Note and the indebtedness evidenced hereby shall be secured by any lien or security interest 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 nnv Obligor to Company is materially incorrect or misleading; (d) if Borrower or any Obligor shall beco~me ~ . - 'x~/X~ ~ insolvent or make an assignrn~nt ,for the benefit of credi't$~s or ii'ny petition shall be filed by or against Borrow;r or any Obligor under any ban~ ~tcy or insolvency law; (e) the entry of any jud~ Mt against Borrower or any Obligor which remains unsatisfied for 15 days or the issuance of any anachment, tek 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 e~tered 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 had, 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 Borrower for payroll taxed, Social Security payments or similar payroll deductions; (k) if any Obligor shall attempt to terminate or disclaim such Obligor's liability for 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) if Borrower shall be notified of the failure of Borrower or any Obligor to provide financial and other information promptly when 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 thereof until 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 thc mail, postage prepaid, for delivery by f~rst 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 funds. 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 - If Borrower is a corporation or a general or limited partnership, Borrower 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 .t/his 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 Board 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 partnership agreement or certificate of limited partnership. Borrower f~rther 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. WAIVER, ETC,, - Borrower and each Obligor' waive 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 writing signed by company. All rights and remedies of Company are cumulative and concurrent and no single or partial 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 fights or remedies against any collateral in which it holds a lien or security .atrestor against which it has a tight of setoff'oi' against'any All particular Obligor. representation warranties agreements herein are made jc~ ? and severally by each Borrower. If any pro',! 'p of this Note shall be held ll~ invalid or unenforceable, such invalidity of unenforceability shall not affect any o,ser provision hereof. To the l~ extent that this Note represents a replacement, substitution, renewal or refinancing ora pre-existing note or other r 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 a'ansfer, and Borrower hereby consents to the assignment or ~ansfer, of Company's interest in this Note without notice to Borrower. Borrower 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 MAURER ARISING OUR OF OR RELATED TO THIS NOTE OR THE RELATIONSHIP EVIDENCED HEREBY, EACH UNDERSIGNED PARTy HEREBY IRREVOCABLY SUBMIT~ 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 OIIJECTION TO SUCH JURISDICTION OR TO THE LAYING OR MAINTAINING OF THE VENUE OF ANY SUCH PROCEEDING IN 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 MAIL, 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 tN ANY LEGAL PROCEEDING INVOLVING, DIRECTLY OR INDIRECTLY, ANY MAURER (WHETHER 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. 1N WITNESS WHEREOF, Borrower, intending this to be a sealed instrument 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: (Print name and title) Thomas L. Dval. Jr.. President (Print name and title) Individuals: Witness Borrower (Print name of Witness) (Print name of Borrower) X X (Print name of Witness) (Print name of Borrower) VERIFICATION COMPANY NAME: TAYLOR WHARTON GAS EQUIPMENT, A DIVISION OF HARSCO CORPORATION I 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. Dated: Title John W. Purcell, Jr. I.D. 29955 Purcell, Krug &Haller 1719 North Front Street Harrisburg, PA 17102 (717) 234-4178 jourcell(~., okh.com TAYLOR WHARTON GAS EQUIPMENT, A DIVISION OF HARSCO CORPORATION, Plaintiff VS. CYRO WELD CORPORATION, Defendant : IN THE COURT OF COMMON PLEAS : CUMBERLAND COUNTY, PENNSYLVANIA : : CIVIL ACTION-LAW : : NO. 04-2517 PRAECIPE TO THE PROTHONOTARY: Please reinstate the Complaint in the above captioned matter. / I.D. 29955 { 1~7'19 North Fro~.~t Street ~-"Harrisburg, PA 17102 (717) 234-4178 Dated: December 6, 2004 John W. Purcell, Jr. J.D. 29955 Purcell, Krug & Haller 1719 North Front Street Harrisburg, PA 17102 (717) 234-4178 ipurcell(Q;>pkh.com TAYLOR WHARTON GAS EQUIPMENT, A DIVISION OF HARSCO CORPORATION, Plaintiff : IN THE COURT OF COMMON PLEAS : CUMBERLAND COUNTY, PENNSYLVANIA : CIVIL ACTION-LAW VS. : NO. 04-2517 CIVIL TERM CYRO WELD CORPORATION, Defendant PRAECIPE TO THE PROTHONOTARY: Please mark the above matter settled and discontinued with prejudice. ~-..) C) ~':::';; ;i, ;';";"' -'1 rt"i C;;j I N -'(1 _'r _\,'-'" c:'? <? 1'''