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HomeMy WebLinkAbout10-2273UNRUH, TURNER, BURKE & FREES, P.C. BY: JOHN K. FIORILLO, ESQUIRE ATTORNEY I.D. No. 55658 - BY: NANCY J. GLIDDEN, ESQUIRE ATTORNEY I.D. No. 78961 P.O. Box 515 WEST CHESTER, PA 19381-0515 610-692-1371 PNC BANK, NATIONAL ASSOCIATION 1600 Market Street Philadelphia, PA 19103 Plaintiff vs. INFRATECH INDUSTRIES, INC. 145 Willow Mill Park Road Mechanicsburg, PA 17050 Defendant NOTICE : ATTORNEYS FOR PLAINTIFF n N J'?-- CTt r , < c.> : IN THE COURT OF COMMON PLEAS : CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW No. 16 0""' C-?" You have been sued in court. If you wish to defend against the claims set forth in the following pages, you must take action within twenty (20) days after this complaint and notice are served, by entering a written appearance personally or by attorney and filing in writing with the court your defenses or objections to the claims set forth against you. You are warned that if you fail to do so the case may proceed without you and a judgment may be entered against you by the court without further notice for any money claimed in the complaint or for any other claim or relief requested by the plaintiff. You may lose money or property or other rights important to you. YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW. THIS OFFICE CAN PROVIDE YOU WITH INFORMATION ABOUT HIRING A LAWYER. IF YOU CANNOT AFFORD TO HIRE A LAWYER, THIS OFFICE MAY BE ABLE TO PROVIDE YOU WITH INFORMATION ABOUT AGENCIES THAT MAY OFFER LEGAL SERVICES TO ELIGIBLE PERSONS AT A REDUCED OR NO FEE. q9? C K-0 a.3?9sa CUMBERLAND COUNTY LAWYER REFERRAL SERVICE 32 South Bedford Street Carlisle, PA 17013 (717) 249-3166 AVISO L Le han demandado en corte. Si usted quiere defenderse contra las demandas nombradas en las paginas siguientes, tiene viente (20) dias a partir de recibir esta demanda y notificacion para entablar personalmente o por un abogado una comparecencia escrita y tambien para entablar con la corte en forma escrita sus defensas y objeciones a las demandas contra usted. Sea advisado que si usted no se defiende, el caso puede continuar sin usted y la corte puede incorporar un juicio contra usted sin previo aviso para conseguir el dinero demandado en el pleito o para conseguir cualquier otra demanda o alivio solicitados por el demandante. Usted puede perder dinero o propiedad u otros derechos importantes para usted. USTED DEBE LLEVAR ESTE DOCUMENTO A SU ABOGADO INMEDIATAMENTE. SI USTED NO TIENE ABOGADO, VAYA EN PERSONA O LLAME POR TELEFONO LA OFICINA NOMBRADA ABAJO PARA AVERIGUAR DONDE SE PUEDE CONSEGUIR ASSISTENCIA LEGAL. ESTA OFICINA PUEDE PROPORCIONARLE LA INFORMACION SOBRE CONTRATAR A UN ABOGADO. SI USTED NO TIENE DINERO SUFICIENTE PARA PAGAR A UN ABOGADO, ESTA OFICINA PUEDE PROPORCIONARLE INFORMACION SOBRE AGENCIAS QUE OFRECEN SERVICIOS LEGALES A PERSONAS QUE CUMPLEN LOS REQUISITOS PARA UN HONORARIO REDUCIDO 0 NINGUN HONORARIO. UNRUH, TURNER, BURKE & FREES, P.C. BY: JOHN K. FIORILLO, ESQUIRE ATTORNEY I.D. NO. 55658 BY: NANCY J. GLIDDEN, ESQUIRE ATTORNEY I.D. No. 78961 P.O. Box 515 WEST CHESTER, PA 19381-0515 610-692-1371 PNC BANK, NATIONAL ASSOCIATION 1600 Market Street Philadelphia, PA 19103 Plaintiff VS. ATTORNEYS FOR PLAINTIFF : IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW : No. INFRATECH INDUSTRIES, INC. 145 Willow Mill Park Road Mechanicsburg, PA 17050 Defendant COMPLAINT 1. Plaintiff, PNC Bank, N.A. (the "Bank") is a banking institution, whose address is 1600 Market Street, Philadelphia, PA 19103. 2. Defendant, Infratech Industries, Inc. is a Pennsylvania Corporation with an address of 145 Willow Mill Park Road, Mechanicsburg, PA 17050. 3. On or about January 27, 2006, in consideration of monies lent, Infratech Industries, Inc. (the "Borrower") executed and delivered to the Bank a term note in the original principal sum of $30,000.00 (the "Note"). A true and correct copy of the Note is attached hereto and made a part hereof as Exhibit "A". 4. On or about November 16, 2006, Borrower and the Bank executed a Change in Terms Agreement: which, among other things, increased the principal amount of the January 27, 2006, loan to 5300,000.00. A true and correct copy of the Change in Terms Agreement is attached hereto and made a part hereof as Exhibit "B." 5. The Note, as amended, has not been assigned and the Bank is still the holder thereof. 6. Borrower has defaulted on its obligations to the Bank under the Note, as amended, by virtue of among other things, failing to make payment as and when due. 7. As a result of said defaults, Borrower is in default and the following amounts are immediately due and payable under and in connection with said Note, as amended, as of February 8, 2010: Principal $346,877.45 Interest as of 02/08/10 $ 95,178.34 Late Charges as of 02/08/10 $ 10,574.95 Attorney's Commission (10%) $ 45,263.07 TOTAL $497,893.81 Interest continues to accrue from February 8, 2010, at a per diem rate of $97.41. WHEREFORE, Plaintiff PNC Bank, N.A., respectfully requests judgment in its favor and against Defendant, Infratech Industries, Inc., in the amount of $497,896.81 plus interest from February 8, 2010 at the per diem rate of $97.41 and attorneys fees, costs and expenses. UNRUH, TURNER, BURKE & FREES, P.C. Date: _ By: John K. iorillo, Esquire Nancy J. Glidden, Esquire Attorneys for Plaintiff, PNC Bank, N.A. P.O. Box 515 West Chester, PA 19381-0515 Attorney I.D. No. 55658/78961 (610) 692-1371 -2- VERIFICATION The undersigned is representative of PNC Bank, N.A., the Plaintiff in this matter that is represented by counsel, and the undersigned makes this verification being duly authorized to do so. Counsel has been furnished with factual information upon which the foregoing pleading is based. To the extent that the foregoing pleading is based on the factual information provided to counsel, I verify that those facts are true and correct to the best of my knowledge, information and belief. However, the language of the pleading is that of counsel and, to the extent that the foregoing pleading goes beyond the factual information provided to counsel, I have relied upon counsel in making this verification. I understand that false statements herein are made subject to the penalties of 18 Pa. C.S. §4904, relating to unsworn falsification to authorities. BY: -1- PNC BANK, N.A. EXHIBIT "A" PROMISSORY NOTE References in the shaded area are for Lender's use only and do not limit the applicability of this document to any particular loan or item. Any Item above containing "'"•"_has been omitted due to text length limitations. Borrower: INFRATECH INDUSTRIES. INC (TIN: 20-09306591 Lender: PNC Bank. National Association 145 WILLOW MILL PARK ROAD Business Banking MECHANISBURG, PA 17050 4242 Carlisle Pike Camp HUI, PA 17001 Principal Amount: $30,000.00 Initial Rate: 9.500% Date of Note: January 27, 2006 PROMISE TO PAY. INFRATECH INDUSTRIES, INC ('Borrower") promises to pay to PNC Bank, National Association ("Lender"), or order, In lawful money of the Untied States of America, the principal amount of Thirty Thousand & 001100 Dollars ($30,000.00) or so much as may be outstanding, together with interest on the unpaid outstanding principal bal"ce of each advance. Interest shall be calculated from the date of each advance until repayment of each advance. PAYMENT. Borrower will pay this loan In accordance with the following payment schedule: Borrower will pay regular monthly payments of accrued Interest beginning FEBRUARY 27, 2006 and ell subsequent interest payments are due on the some day of each month after that. Borrower wig pay this loan in one payment of all outstanding principal plus all accrued unpaid interest on the Expiration Date. Borrower may borrow, repay mid rsborrow hereunder unit the Expiration Date, subject to the terms and conditions of this Note. The "Expiration Date" shall mean JANUARY 27, 2008 or such later date as may be designated by written notice from Lender to Borrower. Borrower acknowledges and agrees that in no event will Lender be under any obfigadon to extend or renew the loan or this Note beyond the Initial Expiration Date. In no event shah the aggregate unpaid principal amount of advances under this Note exceed the face amount of this Note. Unless otherwise agreed or required by applicable law, payments will be applied first to any accrued unpaid Interest; than to principal; then to any unpaid collection costs; and then to any late charges. The annual Interest rate for this Note Is computed on a 3651360 basis; that Is, by applying the ratio of the annual Interest rate over a year of 360 dove, muldpled by the outstanding principal balance, multiplied by the actual number of days the principal balance is outstanding. Borrower will pay Lender at lender's address shown above or at such other place as Lender may designate In writing. VARIABLE INTEREST RATE The interest rate on this Note Is subject to change from time to time based on changes in an independent index which is the highest Prime Rate as published in the "Money Rates" section of The Wall Street Journal (the "Index"). The Index Is not necessarily the lowest rate charged by Lender on Its loans. If the Index becomes unavailable during the term of this loan, Lender may designate e substitute index after notice to Borrower. Lender will tell Borrower the current Index rate upon Borrower's request, The interest rate change will not occur more often than each day. Borrower understands that Lender may make loans based on other rates as well. The Index currently Is 7.250% per annum. The interest rate to be applied to the unpaid principal balance of this Note Will be at a rate of 2.280 percentage points over the Index, resulting in an initial rate of 9.500% per annum. NOTICE: Under no circumstances will the interest rate on this Note be more than the maximum rate allowed by applicable law. PREPAYMENT. Borrower may pay without penalty all or a portion of the amount owed earlier then It is due. Early payments will not, unless agreed to by Lender in writing, relieve Borrower of Borrower's obligation to continue to make payments of accrued unpaid interest. Rather, early payments will reduce the principal balance due. Borrower agrees not to send lender payments marked "paid in full", "without recourse", or similar language. If Borrower sends such a payment, Lender may accept it without losing any of Lender's rights under this Note, and Borrower will remain obligated to pay any further amount owed to Lender. All written communications concerning disputed amounts, including any check or other payment instrument that indicates that the payment constitutes "payment in full" of the amount owed or that is tendered with other conditions or limitations or as full satisfaction of a disputed amount must be mailed or delivered to: PNC Bank, National Association, Atin; Doc Prep/Operations Department - BBCAC, 8800 Tinicum Boulevard 5th Floor Philadelphia. PA 19163. LATE CHARGE. If a payment is 15 days or more late, Borrower will be charged 5.000% of the regularly scheduled payment or $100,00, whichever Is leas. INTEREST AFTER DEFAULT. Upon default, including failure to pay upon final maturity, Lender, at its option, may, if permitted under applicable law, increase the variable interest rate on this Note to 7.250 percentage points over the Index. The interest rata will not exceed the maximum rate permitted by applicable law. If judgment is entered in connection with this Note, interest will continue to accrue on this Note after judgment at the interest rate applicable to this Note at the time judgment is entered. DEFAULT. Each of the following shelf constitute an event of default ("Event of Default') under this Note; Payment Default. Borrower fails to make any payment when due. Other Defaults. Borrower or Grantor fails to comply with or to perform any other term, obligation, covenant or condition contained in this Note or in any of the related documents or to comply with or to perform any term, obligation, covenant or condition contained In any other agreement between Lender and Borrower. Dafauft in Favor of Third Parties. Borrower or any Grantor defaults under any loan, extension of credit, security agreement, purchase or sales agreement, or any other agreement, in favor of any other creditor or person that may materially affect any of Borrower's property or Borrower's ability to repay this Notts or perform Borrower's obligations under this Note or any of the related documents. False Statements. Any warranty, representation or statement made or furnished to Lender by Borrower or on Borrower's behalf under this Note or the related documents Is false or misleading in any material respect, either now or at the time made or furnished or becomes false or misleading at any time thereafter. Insolvency. The dissolution or termination of Borrower's existence as a going business, the insolvency of Borrower, the appointment of a receiver for any pan of Borrower's property, any assignment for the benefit of creditors, any type of creditor workout, or the commencement of any proceeding under any bankruptcy or insolvency laws by or against Borrower. Creditor or Forfeiture Proceedings. Commencement of foreclosure or forfeiture proceedings, whether by judicial proceeding, self-help, repossession or any other method, by any creditor of Borrower or by any governmental agency against any collateral securing the loan. This includes a garnishment of any of Borrower's accounts, including deposit accounts, with Lender. However, this Event of Default shall not apply if there is a good faith dispute by Borrower as to the validity or reasonableness of the claim which Is the basis of the creditor or forfeiture proceeding and if Borrower gives Lender written notice of the creditor or forfeiture proceeding and deposits with Lender monies or a surety bond tot the creditor or forfeiture proceeding, in an amount determined by Lender, in its sofa discretion, as being an adequate PROMISSORY NOTE (Continued) reserve or bond for the dispute. Page 2 Events Affecting Guarantor. Any of the preceding events occurs with respect to any Guarantor of any of the indebtedness or any Guarantor dies or becomes incompetent, or revokes or disputes the validity of, or liability under, any guaranty of the indebtedness evidenced by this Note. Change In Ownership. Any change in ownership of twenty-five percent (25%) or more of the common stock of Borrower. Adverse Change. A material adverse change occurs In Borrower's financial condition, or Lender believes the prospect of payment or performance of this Note is impaired. Insecurity. Lender in good faith believes itself insecure. LENDER'S RIGHTS. Upon default, Lander may, after giving such notices as required by applicable law, declare the entire unpaid principal balance on this Note and all accrued unpaid interest immediately due, without notice, and than Borrower will pay that amount. ATTORNEYS' FEES; EXPENSES. Lender may hire or pay someone else to help collect this Note if Borrower does not pay. Borrower will pay Lender that amount. This includes, subject to any limits under applicable law, Lender's attorneys' fees and Lender's legal expenses, whether or not there is a lawsuit, including attorneys' fees, expenses for bankruptcy proceedings lnncluding efforts to modify or vacate any automatic stay or injunction), appeals and any anticipated post-judgement collection services, if not prohibited by applicable low, Borrower also will pay any court costs, in addition to all other sums provided by low. WAIVER OF JURY TRIAL. THE BORROWER IRREVOCABLY WAIVES ANY AND ALL RIGHTS THE BORROWER MAY HAVE TO A TRIAL BY JURY IN ANY ACTION, PROCEEDING OR CLAIM OF ANY NATURE RELATING TO THIS NOTE, ANY DOCUMENTS EXECUTED IN CONNECTION WITH THIS NOTE OR ANY TRANSACTION CONTEMPLATED IN ANY OF SUCH. DOCUMENTS. THE BORROWER ACKNOWLEDGES THAT THE FOREGOING WAIVER IS KNOWING AND VOLUNTARY. GOVERNING LAW. This Note will be governed by federal taw applicable to Lender and, to the extent not preempted by federal low, the laws of the Commonwealth of Pennsylvania without regard to its can8'rch of law provisions. This Note has been accepted by Lander In the Commonwealth of PannsyWarda. CHOICE OF VENUE. If there is a lawsuit, Borrower agrees upon Lender's request to submit to the jurisdiction of the courts of Cumberland County, Commonwealth of Pennsylvania. RIGHT OF SETOFF. In addition to ell liens upon and rights of setoff against Borrower's money, securities or other property given to Lender by law, Lender shell have, with respect to Borrower's obligations to Lender under this Note and to the extent permitted by law, a contractual possessory security interest in and a contractual right of setoff against, and Borrower hereby assigns, conveys, delivers, pledges and transfers to Lender all of Borrower's right, title and interest in and to, all of Borrower's deposits, moneys, securities and other property now or hereafter in the possession of or on deposit with, or in transit to, Lender or any other direct or indirect subsidiary of The PNC Financial Services Group, Inc., whether held in a general or special account or deposit, whether held jointly with someone also, or whether held for safekeeping or otherwise, excluding, however, all IRA, Keogh, and trust accounts. Every such security Interest and right of setoff may be exercised without demand upon or notice to Borrower. Every such right of setoff shall be deemed to have been exercised immediately upon the occurrence of an Event of Default hereunder without any action of Lender, although Lender may enter such setoff on its books and records at a later time. COLLATERAL. Borrower acknowledges this Note is secured by the following collateral described in the security instrument fisted herein: inventory, chattel paper, accounts, equipment, general intangibles and consumer goods described in a Commercial Security Agreement dated January 27, 2006. LINE OF CREDIT. This Note evidences a revolving line of credit. Advances under this Note may be requested orally by Borrower or by an authorized person. All oral requests shag be confirmed in writing on the day of the request. All communications, instructions, or directions by telephone or otherwise to Lender are to be directed to Lender's office shown above, Borrower agrees to be liable for all sums either: lA) advanced in accordance with the instructions of an authorized person or (Bl credited to any of Borrower's accounts with Lender. The unpaid principal balance owing on this Note at any time may be evidenced by endorsements on this Note or by Lender's internal records, including daily computer print-outs. Lander will have no obligation to advance funds under this Note if, (A) Borrower or any guarantor is In default under the terms of this Note or any agreement that Borrower or any guarantor has with Lender, including any agreement made in connection with the signing of this Note; (B) Borrower or any guarantor cones doing business or is insolvent; (C) any guarantor seeks, claims or otherwise attempts to limit, modify or revoke such guarantor's guarantee of this Note or any other loan with lender, (D) Borrower has applied funds provided pursuant to this Note for purposes other than those authorized by Lender; or (E) Lender in good faith believes itself insecure. FINANCIAL INFORMATION PROVISION. Borrower agrees to deliver any financial and other business information concerning Borrower that Lender may request from time to time, such as annual end Interim financial statements fall of which shell be prepared in accordance with generally accepted accounting principles) and federal income tax returns. DEPOSITORY. Borrower will establish and maintain, with Lender, Borrower's primary depository account(s). If Borrower fails to establish end/or maintain its primary depository account(sl with Lender, Lender may, at its option, upon thirty (30) days notice to Borrower, increase the interest rate payable by Borrower under this Note by up to 1.00 percentage points 11.00%). Lender's right to Increase the Interest rate pursuant to this paragraph shell be in addition to any other rights or remedies Lender may have under this Note, all of which are hereby reserved, and shall not constitute a waiver, release or limitation upon Lender's exercise of any such rights or remedies. AUTOMATIC DEBIT OF PAYMENTS. The Borrower hereby authorizes the Lender to charge the Borrower's deposit account at the Lander for any payment when due hereunder. If the Borrower revokes this authorization for any reason whatsoever or fails to maintain a deposit account with the Lender which may be charged, the Lender may, at its option, upon thirty (301 days notice to the Borrower, increase the interest rate payable by the Borrower under this Note by twenty-five 125) basis points (0,25%). TERMINATION OF LINE OF CREDIT. Upon sixty 160) days prior written notice to Borrower, Lender may terminate the Line of Credit, with or without cause,' and demand full payment of the entire unpaid principal balance of this Note, and all accrued and unpaid Interest on the balance, and all other amounts due in accordance with the terms of this Note. Unless Lender's notice provides otherwise, Lender will have no further obligation to advance funds under this Note. CONVERSION TO TERM LOAN. Lender retains the right to convert all or any part of the outstanding Indebtedness under this Note into an amortizing term loan, with or without cause, upon providing sixty (60) days prior written notice to Borrower (the "Conversion Notice'). If Lender exercise this right, Lender will compute a new monthly payment with respect to the part of the indebtedness so converted (the "Term Loan Portion"), and Borrower will be advised of such new monthly payment with respect to the Term Loan Portion in the Conversion Notice. Monthly payments on the Term Loan Portion following the Conversion Notice shall be based upon an amortization period specified in the Conversion Notice ithe "Amortization Period"l. Subsequent payments on the Term Loan Portion shag be determined monthly and shall be In the amounts determined by Lender to be necessary to fully amortize the then outstanding principal balance so converted over the then remaining Amortization Period at the effective interest rate on this Note as of the date the amount of such payment is calculated by Lender. All PROMISSORY MOTE (Continued) Page 3 outstanding principal and accrued interest will be due on the last day of the Amortization Period. All of the provisions of this Note and any Related Documents shall apply to the Term Loan Portion except to the extent inconsistent with this parof. ACBS CLOSED LOAN PACKAGE. Send closed loan package, Including fee collected, to the Document Control Centef(DCC) at P7•PFSC•04-L. SUCCESSOR INTERESTS. The terms of this Note shell be binding upon Borrower, and upon Borrower's heirs, personal representatives, successors and assigns, and shall inure to the benefit of Lender and its successors and assigns. GENERAL PROVISIONS. Lender may delay or forgo enforcing any of its rights or remedies under this Note without losing them. Borrower and any other person who signs, guarantees or endorses this Note, to the extent allowed by law, waive presentment, demand for payment, and notice of dishonor- Upon any change in the term of this Note, and unless otherwise expressly stated in writing, no party who signs this Note, whether as maker, guarantor, accommodation maker or endorser, shall be released from liability. All such parties agree that Lender may renew or extend (repeatedly and for any length of time) this loan or release any party or guarantor or collateral; or impair, fall to realize upon or perfect Lender's security interest in the collateral; and take any other action deemed necessary by Lender without the consent of or notice to anyone. All such parties also agree that Lender may modify this ban without the consent of or notice to anyone other than the party with whom the modification is made. The obligations under this Note are joint end several. If any portion of this Nate is for any reason determined to be unenforceable, it will not affect the enforceability of any other provisions of this Note. CONFESSION OF JUDGEMENT. THE BORROWER HEREBY EMPOWERS ANY ATTORNEY OF ANY COURT OF RECORD. AFTER THE OCCURRENCE OF ANY EVENT OF DEFAULT HEREUNDER. TO APPEAR FOR THE BORROWER AND. WITH OR WITHOUT COMPLAINT FILED, CONFESS JUDGMENT, OR A SERIES OF JUDGMENTS, AGAINST THE BORROWER IN FAVOR OF LENDER OR ANY HOLDER HEREOF FOR THE ENTIRE PRINCIPAL BALANCE OF THIS NOTE, ALL ACCRUED INTEREST AND ALL OTHER AMOUNTS DUE HEREUNDER. TOGETHER WITH COSTS OF SUIT AND AN ATTORNEY'S COMMISSION OF THE GREATER OF 10% OF SUCH PRINCIPAL AND INTEREST OR 81.000 ADDED AS A REASONABLE ATTORNEY'S FEE, AND FOR DOING SO, THIS NOTE OR A COPY VERIFIED BY AFFIDAVIT SHALL BE A SUFFICIENT WARRANT. THE BORROWER HEREBY FOREVER WAIVES AND RELEASES ALL ERRORS IN SAID PROCEEDINGS AND ALL RIGHTS OF APPEAL AND ALL RELIEF FROM ANY AND ALL APPRAISEMENT, STAY OR EXEMPTION LAWS OF ANY STATE NOW IN FORCE OR HEREAFTER ENACTED. INTEREST ON ANY SUCH JUDGMENT SHALL ACCRUE AT THE DEFAULT RATE. NO SINGLE EXERCISE OF THE FOREGOING POWER TO CONFESS JUDGMENT, OR A SERIES OF JUDGMENTS, SHALL BE DEEMED TO EXHAUST THE POWER, WHETHER OR NOT ANY SUCH EXERCISE SHALL BE HELD BY ANY COURT TO BE INVALID, VOIDABLE, OR VOID, BUT THE POWER SHALL CONTINUE UNDIMINISHED AND IT MAY BE EXERCISED FROM TIME TO TIME AS OFTEN AS LENDER SHALL ELECT UNTIL SUCH TIME AS LENDER SHALL HAVE RECEIVED PAYMENT IN FULL OF THE DEBT, INTEREST AND COSTS. NOTWITHSTANDING THE ATTORNEY'S COMMISSION PROVIDED FOR IN THE PRECEDING PARAGRAPH (WHICH IS INCLUDED IN THE WARRANT FOR PURPOSES OF ESTABLISHING A SUM CERTAIN), THE AMOUNT OF ATTORNEYS' FEES THAT LENDER MAY RECOVER FROM THE BORROWER SHALL NOT EXCEED THE ACTUAL ATTORNEYS' FEES INCURRED BY LENDER. PRIOR TO SIGNING THIS NOTE, BORROWER READ AND UNDERSTOOD ALL THE PROVISIONS OF THIS NOTE, INCLUDING THE VARIABLE INTEREST RATE PROVISIONS. BORROWER AGREES TO THE TERMS OF THE NOTE. THIS NOTE IS GIVEN UNDER SEAL AND IT IS INTENDED THAT THIS NOTE IS AND SHALL CONSTITUTE AND HAVE THE EFFECT OF A SEALED INSTRUMENT ACCORDING TO LAW. BORROWER: INFRATECH INDUSTRIES, INC BY (Seel) J9RN EARLEY, Vice Pree' ent of IN RAT CH INDUSTRIES, INC BY; - a?? ISeaq E $, Pr e jWINFRATECH INDUSTRIES. 1 umRrrat-oww.t.30-W- M r:-9"-rr..r9,a.,,,.,.,xr.2M wq..e..,..'..PA TAC.MKV=W maommu m.,. EXHIBIT "B" CHANGE IN TERMS AGREr,"ENT Fri?tntPBt Loar: Date M>t?tlti??r: ?f?tt Ne Oait I OaR ?t [dicer lnitisFs , $ 1`'# tSi+ . a E$T442 " ?? r i7'6 QQ 0.? . References in the shaded area are for Lender's use only and do not limit the applicability of this document to any particular loan or item. Any item above containing •* '" has been omitted due to text length limitations. Borrower: INFRATECH INDUSTRIES, INC. (TIN: 20-0930659) Lender: PNC Bank, National Association 145 WILLOW MILL PARK ROAD Business Banking MECHANICSBURG, PA 17050 4242 Carlisle Pike Camp Hill, PA 17001 Principal Amount: $300,000.00 Initial Rate: 10.500% Date of Agreement: November 16, 2006 DESCRIPTION OF EXISTING INDEBTEDNESS. A $30,000.00 PROMISSORY NOTE DATED JANUARY 27, 2006 BETWEEN BORROWER AND LENDER AS HERETOFORE MODIFIED FROM TIME TO TIME. DESCRIPTION OF CHANGE IN TERMS. 1) THE MAXIMUM PRINCIPAL AMOUNT OF THE NOTE SHALL BE INCREASED FROM $30,000.00 TO $300,000.00 2) TWO NEW MORTGAGES SHALL BE EXECUTED 3) A PACKAGING FEE OF $1,000.00 AND A SBA LOAN FEE OF $4,200.00 SHALL BE DUE AND PAYABLE BY THE BORROWER 4) THE REPAYMENT SCHEDULE SHALL BE MODIFIED AS DEFINED BELOW. PROMISE TO PAY. INFRATECH INDUSTRIES, INC. ('Borrower"1 promises to pay to PNC Bank, National Association ("Lender"), or order, in lawful money of the United States of America, the principal amount of Three Hundred Thousand & 00/100 Dollars (8300,000.00) or so much as may be outstanding, together with interest on the unpaid outstanding principal balance of each advance. Interest shah be calculated from the date of each advance until repayment of eacli advance. PAYMENT. Borrower will pay this loan in accordance with the following payment schedule: Borrower will pay regular monthly payments of accrued interest beginning DECEMBER 16, 2006, and aH subsequent interest payments are due on the same day of each month after that. Borrower will pay this loan in one payment of ad outstanding principal plus all accrued unpaid interest on the Expiration Date. Borrower may borrow, repay and raborrow hereunder until the Expiration Date, subject to the terms and conditions of this Note. The "Expiration Data" shall mean JANUARY 27, 2008, or such later date as may be designated by written nodes from Lender to Borrower. Borrower acknowledges and agrees that in no event will Larder be under any obligation to extend or renew the loan or this Note beyond the initial Expiration Date. In no event shall the aggregate unpaid principal amount of advances under this Note exceed the face amount of this Note. Unless otherwise agreed or required by applicable law, payments will be applied first to any accrued unpaid interest; then to principal; then to any unpaid collection costs; and then to any:,late charges. Interest on this Agreement is computed on a 365/360 simple interest basis; that is, by applying the ratio of the annual interest rate over a year of 360 days, multiplied by the outstanding principal balance, multiplied by the actual number of days the principal balance is outstanding. Borrower will pay Lender at Lender's address shown above or at such other place as Lender may designate in writing. VARIABLE INTEREST RATE. The interest rate on this loan is subject to change from time to time based on changes in an independent index which is the highest Prime Rate as published in the "Money Rates" section of The Wall Street Journal (the "Index'). The Index is not necessarily the lowest rate charged by Lender on its loans. If the Index becomes unavailable during the term of this loan, Lender may designate a substitute index after notifying Borrower. Lender will tell Borrower the current index rate upon Borrower's request. The interest rate change will not occur more often than each day. Borrower understands that Lender may make loans based on other rates as well. The Index currently is 8.25.0% per annum. The interest rate to be applied to the unpaid principal balance during this loan will be at a rate of 2:250 percentage points over the Index, resulting in an initial rite of 10.500% per annum. NOTICE: Under no circumstances will the interest rate on this loan be more than the maximum rate allowed by applicable law. PREPAYMENT. Borrower may pay without penalty all or a portion of the amount owed earlier than it is due. Early payments will not, unless agreed to by Lender in writing, relieve Borrower of Borrower's obligation to continue to make payments of accrued unpaid interest. Rather, early payments will reduce the principal balance due. Borrower agrees not to send Lender payments marked "paid in full", "without recourse", or similar language. If Borrower sends such a`•payment, Lender may accept it without losing any of Lender's rights under this Agreement, and Borrower will remain obligated to pay any further amount owed to Lender. All written communications concerning disputed amounts, including any check or other payment instrument that: indicates that the payment constitutes "payment in full" of the amount owed or that is tendered with other conditions or limitations or as full satisfaction of a disputed amount must be mailed or delivered to: PNC Bank, National Association, Attn: Doc Prep/Operations Department - BBCAC, 8800 Tinicum Boulevard 5th Floor Philadelphia, PA 19153. LATE CHARGE. If a payment is 15 days or more late, Borrower will be charged 5.000% of the regularly scheduled payment or $100.00. whichever is less. INTEREST AFTER DEFAULT. Upon default, including failure to pay upon final maturity, the interest rate on this loan shall be increased by adding a 5.000 percentage point margin ("Defauk Rate Margin'). The Default Rate Margin shall also apply to each succeeding interest rate change that would have applied had there been no default. If judgment is entered in connection with this Agreement, interest will continue to accrue after the date of judgment at the rate in effect at the time judgment is entered. However, in no event will the interest rate exceed the maximum interest rate limitations under applicable law. DEFAULT. Each of the following shall constitute an Event of Default under this Agreement: Payment Default. Borrower fails to make env payment when due under the Indebtedness. Other Defaults. Borrower or Grantor fails to comply with or to perform any other term, obligation, covenant or condition contained in this Agreement or in any of the Related Documents or to comply with or to perform any term, obligation, covenant or condition ContalrWd in any bthef agreement between Lender and Borrower. Default in Favor of Third Parties. Borrower defaults under any loan, extension of credit, security agreement, purchase or sales agreement, or any other agreement, in favor of any other creditor or person that may materially affect any of Borrower's property or Borrower's ability to perform Borrower's obligations under this Agreement or any of the Related Documents. False Statements. Any warranty, representation or statement made or furnished to Lender by Borrower or on Borrower's behalf under this Agreement or the Related Documents is false or misleading in any material respect, either now or at the time made or furnished or becomes false or misleading at any time thereafter. CHANGE IN TERMS AGREEMENT Loan No: 0000772442 (Continued) Page 2 Insolvency. The dissolution or termination of Borrower's existence as a going business, the inoglyoncy Of 60ISOmr) tht 99¢Oltl mt'M 4t d receiver for any part of Borrower's property, any assignment for the benefit of creditors, any type of creditor workout, or the commencement of any proceeding under any bankruptcy or insolvency laws by or against Borrower. Creditor or Forteitme Proceedings. Commencement of foreclosure or forfeiture proceedings, whether by judicial proceeding, self-help, repossession or any other method, by any creditor of Borrower or by any governmental agency against any collateral securing the Indebtedness. This includes a garnishment of any of Borrower's accounts, including deposit accounts, with Lender. However, this Event of Default shall not apply if there is a good faith dispute by Borrower as to the validity or reasonableness of the claim which is the basis of the creditor or forfeiture proceeding and if Borrower gives Lender written notice of the creditor or forfeiture proceeding and deposits with Lender monies or a surety bond for the creditor or forfeiture proceeding, in an amount determined by Lender, in its sole discretion, as being an adequate reserve or bond for the dispute. Events Affecting Guarantor. Any of the preceding events occurs with respect to any Guarantor of any of the indebtedness or any Guarantor dies or becomes incompetent, or revokes or disputes the validity of, or liability under, any Guaranty of the Indebtedness evidenced by this Note. Change In Ownership. Any change in ownership of twenty-five percent 125%) or more of the common stock of Borrower. Adverse Change. A material adverse change occurs in Borrower's financial condition, or Lender believes the prospect of payment or performance'of the Indebtedness is impaired. Insecurity. Lender in good faith believes itself insecure. LENDER'S RIGHTS. Upon default, Lender may, after giving such notices as required by applicable law, declare the entire unpaid principal balance on this Agreement and all accrued unpaid interest immediately due, and then Borrower will. pay that amount. ATTORNEYS' FEES; EXPENSES. Lender may hire or pay someone else to help collect this Agreement if Borrower does not pay. Borrower will pay Lender that amount. This includes, subject to any limits under applicable law, Lender's attorneys' fees and Lender's legal expenses, whether or not there is a' lawsuit, including attorneys' fees, expenses for bankruptcy proceedings (including efforts to modify or vacate any automatic stay or injunction), and appeals. If not prohibited by applicable law, Borrower also will pay any court costs, in addition to all other sums provided by law. GOVERNING LAW. This Agreement will be governed by federal law applicable to Lender and. to. the extent not preempted by federal law. the laws of the Commonwealth of Pennsylvania without regard to its conflicts of law provisions. This Agreement has been accepted by Lender In the Commonwealth of Pennsylvania. CHOICE OF VENUE. If there is a lawsuit, Borrower agrees upon Lender's request to submit tot the jurisdiction of the courts of Cumberland County, Commonwealth of Pennsylvania. RIGHT OF SETOFF. To the extent permitted by applicable law, Lender reserves a right of setoff in'all Borrower's accounts with Lender (whether checking, savings, or some other account). This includes all accounts Borrower holds jointly with' someone else and all accounts Borrower may open in the future. However, this does not include any IRA or Keogh accounts, or any trust accounts for which setoff would be prohibited by law. Borrower authorizes Lender, to the extent permitted by applicable law, to charge or setoff all sums owing on the indebtedness against any and all such accounts, and, at Lender's option, to administratively freeze all such accounts to allow Lender to protect Lender's charge and setoff rights provided in this paragraph. COLLATERAL. Borrower acknowledges this Agreement is secured by SECURITY AGREEMENT DATED JANUARY 27, 2006. LINE OF CREDIT. This Agreement evidences a revolving line of credit. Advances under this Agreement may be requested orally by Borrower or as provided in this paragraph. All oral requests shall be confirmed in writing on the day of the request. All communications, instructions, or directions by telephone or otherwise to Lender are to be directed to Lender's office shown above. The following persons currently are authorized to request advances and authorize payments under the line of credit unfit Lender receives from Borrower, at Lender's address shown above, written notice of revocation of their authority: JOHN B HESS. President of INFRATECH INDUSTRIES, INC.; and JOHN A EARLEY 111, Vice President of INFRATECH INDUSTRIES, INC. Borrower agrees to be liable for all sums either: (A) advanced in accordance with the instructions of an authorized person or (B) credited to any of Borrower's accounts with Lender. The unpaid !principal balance owing on this Agreement at any time may be evidenced by endorsements on this Agreement or by Lender's internal records, including daily computer print-outs. CONTINUING VALIDITY. Except as expressly changed by this Agreement, the terms of the original obligation or obligations, including all agreements evidenced or securing the obligation(s), remain unchanged and in full force and effect. Consent by Lender to this Agreement does not waive Lender's right to strict performance of the obligation(s) as changed, nor obligate Lender.to make any future change in terms. Nothing in this Agreement will constitute a satisfaction of the obligation(s). It is the intention of Lender to retain as liable parties all makers and endorsers of the original obligation(sl, including accommodation parties, unless a party is expressly released by Lender in writing. Any maker or endorser, including accommodation makers, will not be released by virtue of this Agreement. If any person who signed the original obligation does not sign this Agreement below, then all persons signing below acknowledge that this Agreement is given conditionally, based on the representation to Lender that the non-signing party consents to the changes and provisions of this Agreement or otherwise will not be released by it. This waiver applies not only to any initial extension, modification or release, but also to all such subsequent actions. FINANCIAL INFORMATION PROVISION. Borrower agrees to deliver any financial and other business information concerning Borrower that Lender may request from time to time, such as annual and interim financial statements (all of which shall be prepared in accordance with generally accepted accounting principles) and federal income tax returns. DEPOSITORY. Borrower will establish and maintain, with Lender, Borrower's primary depository accountis). If Borrower fails to establish and/or maintain its primary depository account(s) with Lender, Lender may, at its option, upon thirty 130) days notice to Borrower, increase the interest rate payable by Borrower under this Note by up to 1.00 percentage points (1.00%). Lender's right to increase the interest rate pursuant to this paragraph shall be in addition to any other rights or remedies Lender may have under this Note, all of which are hereby reserved, and shall not constitute a waiver, release or limitation upon Lender's exercise of any such rights or remedies. AUTOMATIC DEBIT OF PAYMENTS. The Borrower hereby authorizes the Lender to charge the Borrower's deposit account at the Lender for any payment when due hereunder. If the Borrower revokes this authorization for any reason whatsoever or fails to maintain a deposit account with the Lender which may be charged, the Lender may, at its option, upon thirty (30) days notice to the Borrower, increase the interest rate payable by the Borrower under this Note by twenty-five (25) basis points (0.25%). TERMINATION OF LINE OF CREDIT. -n sixty (60) days prior written notice to Borro ender may terminate the Line of Credit, with or without cause, and demand full pays. F the entire unpaid principal balance of this No. .d all accrued and unpaid interest on the balance, and all other amounts due in accordan.._ with the terns of this Note. Unless Lender's notice provides otherwise, Lender will have no further obligation to advance funds under this Note. CHANGE IN TERMS AGREE'--NT Loan No: 0000772442 (Continued) Page 3 CONVERSION TO TERM LOAN. Lender retains the right to convert all or any part of the outstanding indebtedness under this Note into an amortizing term loan, with or without cause, upon providing sixty (60) days prior written notice to Borrower (the "Conversion Notice"). If Lender exercise this right, Lender will compute a new monthly payment with respect to the part of the indebtedness so converted (the "Term Loan Portion"), and Borrower will be advised of such new monthly payment with respect to the Term Loan Portion in the Conversion Notice. Monthly payments on the Term Loan Portion following the Conversion Notice shall be based upon an amortization period specified in the Conversion Notice (the "Amortization Period"). Subsequent payments on the Term Loan Portion shall be determined monthly and shall be in the amounts determined by Lender to be necessary to fully amortize the then outstanding principal balance so converted over the then remaining Amortization Period at the effective interest rate on this Note as of the date the amount of such payment is calculated by Lender. All outstanding principal and accrued interest will be due on the last day of the Amortization Period. All of the provisions of this Note and any Related Documents shall apply to the Term Loan Portion except to the extent inconsistent with this paragraph- SUCCESSOR INTERESTS. The terms of this Agreement shall be binding upon Borrower, and upon Borrower's heirs, personal representatives, successors, and assigns, and shall be enforceable by Lender and its successors and assigns. MISCELLANEOUS PROVISIONS. Lender may delay or forgo enforcing any of its rights or remedies under this Agreement without losing them. Borrower and any other person who signs, guarantees or endorses this Agreement, to the extent allowed by law, waive presentment, demand for payment, and notice of dishonor. Upon any change in the terms of this Agreement, and unless otherwise expressly stated in writing, no party who signs this Agreement, whether as maker, guarantor, accommodation maker or endorser, shall be released from liability. All such parties agree that Lender may renew or extend (repeatedly and for any length of time) this loan or release any party or guarantor or collateral; or impair, tail to realize upon or perfect Lender's security interest in the collateral; and take any other action deemed necessary by Lender without the consent of or notice to anyone. All such parties also agree that Lender may modify this loan without the consent of or notice to anyone other than the party with whom the modification is made. The obligations under this Agreement are joint and several. If any portion of this Agreement is for any reason determined to be unenforceable, it will not affect the enforceability of any other provisions of this Agreement. PRIOR TO SIGNING THIS AGREEMENT, BORROWER READ AND UNDERSTOOD ALL THE PROVISIONS OF THIS AGREEMENT, INCLUDING THE VARIABLE INTEREST RATE PROVISIONS. BORROWER AGREES TO THE TERMS OF THE AGREEMENT. THIS AGREEMENT IS GIVEN UNDER SEAL AND IT IS INTENDED THAT THIS AGREEMENT IS AND SHALL CONSTITUTE AND HAVE THE EFFECT OF A SEALED INSTRUMENT ACCORDING TO LAW. BORROWER: By: r ,.?C?tlnL? , {Seal} By: ISeap MN HESS -President of INFRATECH J N EA LEY Ill. Vice President of ATECH DUSTRIES, INC. l DUSTRIES, INC. N M MO lv -Y. V ,. 5.32.00=3 Cope. "W- R-W 9 W-10, Ill. 1797. 7C99. M NPI, R -M. M INFRATE NDUS, ?#BSI C M 14 SHERIFF'S OFFICE OF CUMBERLAND COUNTY Ronny R Anderson ~~~ -.~,,,._;•„.,-:,;-~ Sheriff "~~ ~ ~. Jody S Smith Chief Deputy ;`,, ~~ (~ ~i 1~ ~ ~ ~ t ~ ~ ~ ~ 7 Edward L Schorpp Solicitor ~ - ~ `~~1+,~~_ ~ i~ i ~ .~',~ ` is `~ PNC Bank, NA vs. Infratech Industries, Inc. Case Number 2010-2273 SHERIFF'S RETURN OF SERVICE 04/08/2010 01:09 PM -Gerald Worthington, Deputy Sheriff, who being duly sworn according to law, states that on April 8, 2010 at 1300 hours, he served a true copy of the within Complaint and Notice upon the within named defendant, to wit: Infratech Industries, Inc., by making known unto Nancy Early, Treasurer for Infratech Industries, Inc. at 145 Willow Mill Park Road, Mechanicsburg, Cumberland County, Pennsylvania 17050 its contents and at the same time handing to her personally the said true and correct copy of the same. SHERIFF COST: $37.00 April 09, 2010 GE LD WORTHINGTO EPUTY SO ANSWERS, ~~_`""s RON R ANDERSON, SHERIFF .'. Ccu y ~t~ShE :f_T< ,,,nil. Ine. PNC BANK, N.A. 10-2273 C—_ vs Case No. INFRATECH INDUSTRIES, INC. � tL` C Statement of Intention to Proceed Ac-a '°' ; ?c) To the Court: < c rt PNC BANK, N.A. intends to proceed with the above captioned matter. Print Name NANCY J. GLIDDEN, ESS�ign Name Date: 09-04-13 Attorney for PNC BANK, N.A. Explanatory Comment The Supreme Court of Pennsylvania has promulgated new Rule of Civil Procedure 230.2 governing the termination of inactive cases and amended Rule of Judicial Administration 1901. Two aspects of the recommendation merit comment. I.Rule of civil Procedure New Rule of Civil Procedure 230.2 has been promulgated to govern the termination of inactive cases within the scope of the Pennsylvania Rules of Civil Procedure. The termination of these cases for inactivity was previously governed by Rule of Judicial Administration 1901 and local rules promulgated pursuant to it. New Rule 230.2 is tailored to the needs of civil actions. It provides a complete procedure and a uniform statewide practice, preempting local rules. This rule was promulgated in response to the decision of the Supreme Court in Shop v.Eagle, 551 Pa. 360,710 A.2d 1104 (1998) in which the court held that "prejudice to the defendant as a result of delay in prosecution is required before a case may be dismissed pursuant to local rules implementing Rule of Judicial Administration 1901." Rule of Judicial Administration 1901(b) has been amended to accommodate the new rule of civil procedure. The general policy of the prompt disposition of matters set forth in subdivision(a)of that rule continues to be applicable. II Inactive Cases The purpose of Rule 230.2 is to eliminate inactive cases from the judicial system. The process is initiated by the court. After giving notice of intent to terminate an action for inactivity,the course of the procedure is with the parties. If the parties do not wish to pursue the case,they will take no action and"the Prothonotary shall enter an order as of course terminating the matter with prejudice for failure to prosecute." If a party wishes to pursue the matter,he or she will file a notice of intention to proceed and the action shall continue. a. Where the action has been terminated If the action is terminated when a party believes that it should not have been terminated, that party may proceed under Rule230(d)for relief from the order of termination. An example of such an occurrence might be the termination of a viable action when the aggrieved party did not receive the notice of intent to terminate and thus did not timely file the notice of intention to proceed. The timing of the filing of the petition to reinstate the action is important. If the petition is filed within thirty days of the entry of the order of termination on the docket,subdivision(d)(2)provides that the court must grant the petition and reinstate the action. If the petition is filed later than the thirty-day period, subdivision(d)(3)requires that the plaintiff must make a showing to the court that the petition was promptly filed and that there is a reasonable explanation or legitimate excuse both for the failure to file the notice of intention to proceed prior to the entry of the order of termination on the docket and for the failure to file the petition within the thirty-day period under subdivision(d)(2). B. Where the action has not been terminated An action which has not been terminated but which continues upon the filing of a notice of intention to proceed may have been the subject of inordinate delay. In such an instance, the aggrieved party may pursue the remedy of a common law non pros which exits independently of termination under Rule 230.2.