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Home My WebLink About01-7086 MAY&MAY,P.C. BY: DONALD R. REA VEY, ESQUIRE Attorney I.D. # 82498 3438 TRlNDLE ROAD, SUITE 201 CAMP HTI..L, P A 17011 (717) 612-0102 Fax: (717) 612-0103 ATTORNEYS FOR DEFENDANT THOMAS A. SPECK Plaintiff, IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA THOMAS A. SPECK, v, CIVIL ACTION - LAW AND EQUITY SEBASTIAN G,Z. TRISCARI, Defendant. NO. DJ - 7D~ r,'uL ~YY) NOTICE TO DEFEND 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 notiee 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 Bar Association 2 Liberty Avenue Carlisle, Pennsylvania 717-249-3166 MAY & MAY, P.C. BY: DONALD R. REA VEY, ESQUIRE Attorney ID. # 82498 3438 TRINDLE ROAD, SillTE 201 CAMP HILL, PA 17011 (717) 612-0102 Fax: (717) 612-0103 ATTORNEYS FOR THE DEFENDANT THOMAS A. SPECK Plaintiff, IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA THOMAS A. SPECK, v. CIVIL ACTION - LAW AND EQillTY SEBASTIAN G,Z. TRISCARI, Defendant. NO. C), -70~Co Q:'u'\L '-r~ COMPLAINT Plaintiff, Thomas A. Speck, a partner ofTri-Video Services, avers as follows in support of this Complaint against Defendant, Sebastian G.Z, Triscari, also a partner of Tri-Video Services: NATURE OF THE ACTION 1. Plaintiffs bring this action in law and equity seeking a dissolution, and an accounting with regard to the partnership known as Triscari Video Services (hereinafter "the Partnership" or "Tri- Video Services"). Due to the wrongful conduct of the Defendant the Plaintiff also seeks the appointment ofa receiver to oversee the assets ofTri-Video Services. Due to the Defendants missaplication and dissipation of partnership funds the Plaintiff is unable to ascertain the true assets and liabilities ofTri-Video Services, In addition, the Plaintiff seeks relief under the various remedies available to him at law as more fully described below. THE PARTIES 2. Plaintiff, Thomas A. Speck, is an adult individual residing at 4408 Carlisle Pike, Cumberland County, Camp Hill, Pennsylvania, 3. Defendant, Sebastian G.Z. Triscari, is an adult individual residing at 9 Southwatch Lane, Silver Springs, Cumberland County, Pennsylvania, with a business address of 59 Central Boulevard, Camp Hill, Cumberland County, Pennsylvania, JURISDICTION AND VENUE 4, This Court has jurisdiction over the Defendant in this action inasmuch as the Defendant regularly conducts business in the Commonwealth of Pennsylvania and because the events giving rise to this action took place within Pennsylvania. 5, Venue for this action is properly laid in Cumberland County Pennsylvania pursuant to Rules lO06(a) and 2179(a) of the Pennsylvania Rules of Civil Procedure because the Defendant regularly conducts business in Cumberland County and because the causes of action asserted herein arose in this County, FACTUAL BACKGROUND 6, On January 1, 2000 a partnership agreement was entered into between the Plaintiff and the Defendant for the purpose of establishing Tri. Video Services, A true and correct copy of the partnership agreement is attached hereto as Exhibit" A" (hereinafter "Partnership Agreement"), According to the Partnership Agreernent the Plaintiff was established as a -2- 50% partner and, similarly, the Defendant enjoyed 50% of the Partnership. 7, The Partnership was to conduct business and did conduct business at 55-B Central Blvd" Cumberland County, Camp Hill, Pennsylvania (hereinafter "Office Space"). 8. The business purpose of the Partnership was to provide videotaping services for weddings, recitals, school activities, sporting events, seminars and other special events. The videotapes would be edited and finished at the Office Space which provided a wide array of technological equipment. In addition, the Partnership offered editing and reproduction of existing videotape. 9, The Partnership was not intended to compete with the Defendant's other business, Triscari Productions, but it was, instead, established to take advantage of referrals from Triscari Productions. Prior to the establishment of the Partnership, Triscari Productions had to refer any requests for videotaping of weddings, recitals, school activities, sporting events, seminars and other special events to completely unrelated entities. 10. The Partnership Agreement provided, inter alia, that, as capital contributions to the Partnership, the Plaintiff was to pay for materials in the amount of $500 and contribute his labor to renovate the Office Space. The Plaintiff believes that the fair market value for his labor in renovating the Office Space is approximately $2,500, 11. In addition, the Partnership Agreement contemplated that the Plaintiff's labor in setting up the Office Space was to be considered a capital contribution to the Partnership. Setting up the Office Space included set up of all computer systems, and all studio furniture and equipment. The Plaintiff believes that the fair market value for his labor in transporting and setting up equipment and/or assets at the Office Space is approximately $2,000. -3- 12, Pursuant to the Partnership Agreement Sebastian Triscari was to provide a Partnership web site and technical services in maintaining the Partnership equipment. The estimated value of setting up such a web site is approximately $3,000 with a monthly service charge of approximately $80. Me, Triscari's contribution in maintaining the video equipment, as promised, is valued at approximately $5,000. The Defendant, failed to provide either service, 13. On February 29,2000 the Plaintiff and the Defendant entered into a revised partnership agreement (hereinafter "Revised Partnership Agreement"), A true and correct copy of the Revised Partnership Agreement is attached hereto as Exhibit "B." 14. Pursuant to the Revised Partnership Agreement, Sebastian Triscari was to contribute equipment to the Partnership including, cameras, tripods, light kits, audio, Hi-8, half inch VHS/SVHS and three quarter inch editing equipment, electronics racks, monitors, cables and the like, Sebastian Triscari estimated that the value of this equipment totaled $85,600. See, the true and correct copy of the Partnership inventory list attached hereto as Exhibit "c." The Revised Partnership Agreement clearly states that this equipment is the property of the Partnership, 15, Plaintiff believes that the actual value of the items enumerated in Exhibit "c" was much less than $85,600. Plaintiff estimates the actual value of these items to be, in fact, less than $10,000. 16. The Revised Partnership Agreement states that the Partnership will pay its general manager, Thomas Speck and annual salary of$41,500 per year, Only a minimal annual salary was ever paid to Thomas Speck. -4- 17. The Revised Partnership Agreement clearly provides that the profits of the Partnership will be split evenly between Thomas Speck and Sebastian Triscari, It further provides that if either one of them were to refer work to the Partnership in excess of$2,500 a 10% commission would be due the responsible party, 18. On several occasions, Sebastian Triscari demanded a 10% commissions on referrals he was not entitled to. Although Thomas Speck believed he was not entitled to them, he, nevertheless, payed them to Mr. Triscari in the interests of keeping the peace. It is estimated that the total amount of these unearned commissions were approximately $4,000. 19. On one occasion, Mr, Triscari took equipment from the inventory of the Partnership without accounting for it. This equipment was part of Mr. Triscari's original capital contribution of equipment discussed in paragraph 14 above. The specific item removed from inventory is known as a Canare Patchbay valued by Mr, Triscari in Exhibit "c" as worth $1,500. On another occasion, Mr. Triscari removed Alta Centaurus editing equipment from the assets of the Partnership valued by himself as worth $10,000, See, Exhibit "C." 20, On another occasion, Mr, Triscari removed video tape from the premises of the Partnership without accounting for it. The video tape in question contained images of an individual claiming to be a disciple of Jesus Christ. The videotape was taken during a for profit venture of the Partnership in Harrisburg, Pennsylvania, The individual who is the subject of the videotape had gained a certain amount of notoriety because he had appeared in the local news on several occasions, It is believed that representatives of Steven -5- Spielberg, a well know movie director with offices in Los Angeles California, was interested in obtaining a copy of the footage, It is believed that Mr, Triscari sold or otherwise profited from giving the same footage to Mr, Spielberg without accounting to the Partnership for the profit or gain, The actual amount of the sale or gain is unknown. 21. It is believed and, therefore, averred that Sebastian Triscari had removed other additional items from the Partnership inventory on other occasions without accounting for them, The exact identity of these items is unknown at this time. 22. On several occasions the Defendant had the Partnership perform work which he would later characterize as his own personal enterprise. He would then wrongfully receive the profits from this work for his own personal use or that of his other business enterprises failing to account to the Partnership for the profits. 23. Mr, Triscari failed to maintain the Office Space in a manner that allowed for an efficient operation of the Partnership. On one occasion, the Plaintitfwas left to repair a burst sewer pipe and clean the carpeting of the Office space as a result from his own personal expenses. The approximate cost of the repairs approached $1,000, 24. In addition the Partnership enjoyed the cleaning and bookkeeping services ofMrs, Speck at an estimate value of $500 per month, 25. Because Mr. Triscari had overvalued his contributions and had been removing partnership assets from the Partnership, it became necessary for the Partnership to obtain a business loan for $10,000 to purchase new equipment and to take care of other Partnership obligations. 26. Despite the business loan of$10,000, the Partnership was still in need of working capital -6- due to Mr, Triscari's overvaluing of assets and removal of the same, In October of2000, the Partnership added Ken Stephan, D.O., as a 5% partner for the sum of$10,000. A true and correct copy of the Investor Agreement joining Dr, Stephan as a 5% partner is attached hereto as Exhibit "D" ( hereinafter "Investor Agreement"), 27, As detailed in the Investor Agreement, the Partnership purchased its furniture and custom tops from Sebastian Triscari for the cost of $2,000. The Investor Agreement clearly states that the furniture and custom tops became the property of the Partnership after the purchase, See, Exhibit "D," 28, Dr. Stephan's 5% interest in the Partnership was transferred to Thomas Speck on December 14, 200 I. See the attached Assignment Agreement attached hereto as Exhibit "E." 29. Thomas Speck now has a 52.5% interest in the Partnership while Sebastian Triscari now enjoys a 47.5% interest in the Partnership, 30, Again, due to Mr, Triscari's overvaluing of assets and removal of partnership assets, Thomas Speck was forced to personally contribute approximately $7,000 towards the purchase of new equipment for the Partnership, 31. Shortly after May 2000, Mr. Triscari failed to refer business to the Partnership as was orally agreed to between the Plaintiff and the Defendant at the outset of the Partnership. In addition to the oral agreement this understanding had been memorialized at page 4 of the business plan the partnership submitted to obtain the business loan discussed in paragraph 25, above. A true and correct copy of this business plan is attached hereto as Exhibit "F," It is further believed and, therefore, averred that the Defendant did in fact make referrals -7- to competitors ofTri-Video Services or had the work performed by student interns at Triscari Productions rather than refer the business to Tri- Video Services directly. 32, It is further believed and, therefore, averred that not only did Mr, Triscari fail to refer business to the Partnership, but that he actually discouraged individuals from using the Partnership. It is believed and, therefore, averred that Mr, Triscari also engaged in making false and misleading statements concerning the Partnership and Mr. Speck personally with the intent of causing a loss of business to the Partnership and Mr. Speck, personally. 33. It is further believed and, therefore, averred that Mr. Triscari's sole motivation in refusing to refer work to the Partnership was to induce Mr. Speck into doing construction work on his personal property, Mr, Triscari had made it clear that unless Mr, Speck was willing to do construction work for him at the rate of $20 per hour he would receive no referrals from himself. 34, By December of 2000, the Partnership began to suffer from a lack of work due to Mr. Triscari's breach of his agreement to provide referrals, and his wrongful conversion, overvaluation, and dissipation of Partnership assets. It then became necessary for Mr, Speck to move the partnership to his home because the Partnership could no longer afford to pay the Defendant's rent. Mr. Triscari had been renting office space to the Partnership at the rate of$500,OO per month plus utilities, See, Exhibit "B." Mr, Speck moved enough of the Partnership equipment to his new office so that he could continue Partnership business with the approval ofMr, Triscari, 35. Mr. Triscari retained possession of the remaining inventory and assets of the Partnership, 36. The Plaintiff has attempted to carry on the affairs of the Partnership to the best of his -8- ability with the limited equipment and resources remaining. 37. In reliance on Mr. Triscari's misrepresentations concerning his desire to properly conduct the Partnership, Thomas Speck moved his family to the Cumberland County Pennsylvania area at great expense to himself. 38. It appears that upon a true and just settlement of the partnership accounts a considerable balance will be due from the Defendant to Plaintiff in respect to their Partnership dealings. COUNT I DISSOLUTION OF PARTNERSHIP 39. The Plaintiff hereby incorporates by reference Paragraphs 1 through 38 with the same force and effect as if set forth at length, 40. Due to the Defendant's conduct described herein, including overvaluing the Partnership assets and dissipating and misappropriating the same without accounting to the Partnership, the Plaintiff now seeks a judicial decree dissolving the Partnership pursuant to 15 Pa.C.S. ~ 8354, WHEREFORE, the Plaintiff demands a judgment in his favor against Defendant, Sebastian Triscari, in the form of a decree of dissolution of the Partnership, Tri- Video Services, thereby setting a date certain of Partnership dissolution, and such other relief as the court may deem appropriate. COUNT n ACTION FOR ACCOUNTING PURSUANT TO Pa.R.C.P NO. 1530 AND TO INSPECT BOOKS AND RECORDS PURSUANT TO 15 Pa.C.S. 6 8335 -9- 41. The Plaintiff hereby incorporates by reference Paragraphs 1 through 40 with the same force and effect as if set forth at length. 42, Due to the Defendant's wrongful conduct described herein, including dissipating, misappropriating, conversion and overvaluing Partnership assets, Plaintiff is entitled to an accounting of: a. All transactions and dealing of the Partnership from January 2000 until February 2001; b. All profits and losses of the Partnership from January 2000 until February 2001; c, All of the Partnership assets and liabilities from January 2000 until February 2001; 43. The Defendant is a constructive trustee of the funds and assets he wrongfully appropriated and converted to his own use. 44. Moreover, Sebastian Triscarl should account for all Partnership funds spent for his personal use and that of his family and friends and pay back such misapplied funds to the Partnership. 45. Moreover, Sebastian Triscari should account for his overvaluation of Partnership assets and pay back the difference between the actual value of the assets and the misrepresentation of their value to the Partnership. 46, Moreover, Sebastian Triscari should account for wrongful conversion, dissipation, and sale of partnership property and return the items or their value to the Partnership. 47. Moreover, Sebastian Triscari should account for wrongfully receiving commissions on work he was not entitled to and return these sums to the Partnership. 48. Moreover, Sebastian Triscari should account for any and all wrongful conduct towards the -10- Partnership as more fully described herein and return the items or their value to the Partnership, 49. As a Partner, the Plaintiff is also entitled to a full and complete inspection of the Partnership books and records in the possession of Sebastian Triscari, WHEREFORE, Plaintiff demands judgment in his favor and against Sebastian Triscari and for an Order directing Defendant to produce all Partnership books and records for inspection pursuant to Pa,C,S. ~ 8335, account for all of the transactions, dealings, assets and liabilities of Tri- Video Services and such other relief that the Court deems just and proper, COUNT ill APPOINTMENT OF RECEIVER 50. The Plaintiff hereby incorporates by reference Paragraphs 1 through 49 with the same force and effect as if set forth at length. 51. Based upon the wrongful conduct of Sebastian Triscari as set forth above, the immediate appointment of a receiver as contemplated by 15 Pa.C,S, ~ 8359 is necessary to safeguard the remaining assets of the Partnership and to prevent the Defendant from further dissipating those assets. 52, The relief sought by the Plaintiff in this matter is emergent in nature in that the Plaintiff and the Partnership will suffer irreparable harm if the Defendant is permitted to continue dissipating the assets of the Partnership, WHEREFORE, Plaintiff demands judgement in his favor and against the Defendant in -11- the form of the Appointment of a Receiver with such powers and duties as this Court may from time to time direct as necessary to preserve the remaining assets of Defendants wherever situated now in the possession and control of the Defendant and the Plaintiff. COUNT IV BREACH OF FIDUCIARY DUTY 53. The Plaintiff hereby incorporates by reference Paragraphs 1 through 52 with the same force and effect as if set forth at length. 54, As an original equal partner ofTri-Video Services, the Defendant owes a fiduciary duty to the Partnership and to his partner, Thomas Speck. Accordingly, the Defendant has a fiduciary duty not to engage in Partnership waste, mismanagement, and/or misappropriation of the Partnership assets, and not to oppress his partner, Thomas Speck. 55. The Defendant breached his fiduciary duties to the Partnership by operating the Partnership for his own personal benefit and for the benefit of his family and friends since at least January of2000. 56. The Defendant breached his fiduciary duty by, among other things as described herein, failing to provide business references to the Partnership and converting Partnership property to his own use, Not only did the Defendant simply fail to make referrals, but he made referrals to competitors ofTri-Video Services or had the work performed by student interns at Triscari Productions rather than refer the business to Tri- Video Services directly. 57. The Defendant breached his fiduciary duty by overvaluing the assets of the Partnership -12- causing it to become financially unstable, 58, The Defendant breached his fiduciary duty to the Partnership for additional reasons as indicated under the facts as fully set forth herein. WHEREFORE, Plaintiff demands judgment in his favor and against Defendant for an amount in excess of the jurisdictional limit for arbitration, together with interest and costs, punitive damages, and such other and further relief as the Court deems just and proper, COUNT V BREACH OF PARTNERSHIP AGREEMENT 59. The Plaintiff hereby incorporates by reference Paragraphs 1 through 58 with the same force and effect as if set forth at length, 60, The Partnership Agreement and the Revised Partnership Agreement are attached hereto as Exhibits "A", and "B" respectively. 61. The wrongful conduct of the Defendant described herein is a breach of the Partnership Agreement and the Revised Partnership Agreement in the following particular respects and there may be additional breaches under the facts set forth above: a, Overvaluing the assets of the Partnership; b. Converting the assets of the Partnership; c. Dissipating the assets of the Partnership; d, Failing to provide references to maintain the Partnership; e. Failing to set up a web site and maintain the Partnership's equipment; -13- f. Failing to maintain the Office Space; g. Failing to insure that the Plaintiff would receive a salary as required; h. Demanding commissions to which he was not entitled; 62. As a direct and proximate result of the Defendants' breaches of the Partnership Agreement and the Revised Partnership Agreement, the Plaintiff has suffered damage in excess of the jurisdictionaIlimits for arbitration, WHEREFORE, Plaintiff demands judgment in his favor and against Defendant for an amount in excess of the jurisdictionaIlimit for arbitration, together with interest and costs, punitive damages, and such other and further relief as the Court deems just and proper, COUNT VI TORTIOUS INTERFERENCE WITH PROSPECTIVE BUSINESS RELATIONS 63, The Plaintiff hereby incorporates by reference Paragraphs 1 through 62 with the same force and effect as if set forth at length. 64, The Partnership Agreement and the Revised Partnership Agreement clearly contemplated that the Defendant would provide referrals to Tri- Video Productions from customers calling in to Triscari Video Production, Inc, seeking videotaping services. 65. Early in the operation of the Partnership, the Defendant failed to provide the referrals as promised. It is believed and therefore averred that the Defendant did in fact make referrals to competitors ofTri-Video Services or had the work performed by student interns at Triscari Productions rather than refer the business to Tri- Video Services directly, -14- 66, The Defendant had full knowledge that the business of the Partnership and specifically the livelihood of Thomas Speck would be injured if he failed to provide referrals to the Partnership and ifhe dissipated and misappropriated the Partnership assets, 67. In failing to provide referrals, the Defendant acted without privilege and with the purpose and intent to harm. 68. The Defendants acted with reckless indifference to the rights of the Plaintiff in an outrageous and willful manner such that an award of punitive damages is justified, 69. As a direct and proximate result of the Defendant's actions as more fully described above the Plaintiff has suffered pecuniary loss to his business in an amount in excess of the jurisdictional limit for arbitration. WHEREFORE, Plaintiff demands judgment in his favor and against Defendant for an amount in excess of the jurisdictional limit for arbitration, together with interest and costs, punitive damages, and such other and further relief as the Court deems just and proper. COUNT vn COMMERCIAL DISPARAGEMENT 70. The Plaintiff hereby incorporates by reference Paragraphs 1 through 69 with the same force and effect as if set forth at length, 71. It is believed and, therefore, averred that the Defendant knowingly published false statements regarding the Partnership, intending to cause pecuniary loss, or reasonably should have recognized that such publication would cause pecuniary loss. -15- 72. It is believed and, therefore, averred that the Defendant through his oral statements, published the above described false and defamatory statements regarding the Partnership and Thomas Speck personally. 73. It is believed and, therefore, averred that the statements left the audience with the false impression and understanding that the services of the Partnership and Mr. Speck, personally were somehow substandard and would not be performed in a workmanlike manner, 74. It is believed and, therefore, averred that the Plaintiff has suffered actual pecuniary loss as a direct result of the Defendant's disparaging statements in the following ways and in any other way an application of the facts described above would apply: a. the resultant loss of business opportunities and goodwill, particularly good will established by Tri- Video Services and Thomas Speck, personally with others in the remote video graphic industry and the industries which provide products and services to it; 75. It is believed and, therefore, averred that the persons hearing these false and malicious statements made by the Defendant understood them to refer to the Partnership and Thomas Speck, personally. 76. It is believed and, therefore, averred that at all times the Defendant knew that their statements were false and disparaging and/or acted with reckless disregard for the truth of the statements. 77. It is believed and, therefore, averred that the Defendant's conduct was intentional, malicious, wanton and deliberately intended to cause pecuniary loss to the Partnership and Thomas Speck, personally. -16- WHEREFORE, Plaintiff demands judgment in his favor and against Defendant for an amount in excess of the jurisdictional limit for arbitration, together with interest and costs, punitive damages, and such other and further relief as the Court deems just and proper, COUNT vm FRAUD 78, The Plaintiff hereby incorporates by reference Paragraphs 1 through 77 with the same force and effect as if set forth at length, 79. The Defendant knowingly made false statements to the Partnership and Thomas Speck personally, Such false statements include any false and misleading statements discussed above and more specifically include: a, statements made in the Partnership Agreement and the Revised Partnership Agreement regarding the value of the Defendant's capital contributions to the Partnership; b, oral statements made to Thomas Speck personally regarding the Defendant's good intentions to create a Partnership and to refer business to the Partnership; c. written statements made when the partnership was originally formed indicating that the potential income for the Partnership would be between $48,000 to $180,000 in its first year while its projected income in the second year would be $250,000. A true and correct copy of original income projections is attached hereto as Exhibit "G." 80. The Defendant made these statements with the intention that the Plaintiff would understood them as factually accurate and with the intention that the Partnership and Thomas Speck, personally, would rely on the statements to their detriment. 81, The Plaintiff did rely on these statements to his detriment in that he was induced to enter -17- into a Partnership with severely depreciated assets and was later forced out of business by the malicious conduct of the Defendant. 82. The Defendant has suffered damage in relying on these malicious and fraudulent statements in that he moved his entire family to the area for the sole purpose of conducting the business of the Partnership and because he contributed a great deal of his own money and time into making the Partnership work. WHEREFORE, Plaintiff demands judgment in his favor and against Defendant for an amount in excess of the jurisdictional limit for arbitration, together with interest and costs, punitive damages, and such other and further relief as the Court deems just and proper. COUNT IX MISREPRESENTA nON 83. The Plaintiff hereby incorporates by reference Paragraphs 1 through 82 with the same force and effect as if set forth at length, 84. The Defendant made negligent and careless misrepresentations to the Partnership and Thomas Speck personally. Such false statements include any statements discussed above and more specifically include: a, statements made in the Partnership Agreement and the Revised Partnership Agreement regarding the value of the Defendant's capital contributions to the Partnership; b, oral statements made to Thomas Speck personally regarding his good intentions to create a Partnership and to refer business to the Partnership which would directly affect Mr. Speck personally. -18- c. written statements made when the partnership was originally fonned indicating that the potential income for the Partnership would be between $48,000 to $180,000 in its first year while its projected income in the second year would be $250,000, A true and correct copy of original income projections is attached hereto as Exhibit "G." 85. The Plaintiff understood the Defendant's negligent and careless misrepresentations as factually accurate and relied on the statements to his detriment. 86. The Plaintiff did rely on negligent and careless misrepresentations to his detriment in that he was induced to enter into a Partnership with severely depreciated assets, one which was later forced out of business by the malicious conduct of the Defendant. 87, The Defendant has suffered damage in relying on these malicious statement in that he moved his entire family to the area for the sole purpose of conducting the business of the Partnership and because he contributed a great deal of his own money and time into making the Partnership work. WHEREFORE, Plaintiff demands judgment in his favor and against Defendant for an amount in excess of the jurisdictional limit for arbitration, together with interest and costs, punitive damages, and such other and further relief as the Court deems just and proper. COUNT X NEGLIGENCE 88. The Plaintiff hereby incorporates by reference Paragraphs I through 87 with the same force and effect as if set forth at length. 89. All of the resultant losses and damages sustained by Plaintiff resulted directly and -19- proximately from the Defendant's negligence and carelessness as discussed herein and in the following particular respects: a. Overvaluing the assets of the Partnership; b. Converting the assets of the Partnership; c. Dissipating the assets of the Partnership; d. Failing to provide references to maintain the Partnership; e. Failing to set up a web site and maintain the Partnership's equipment; f. Failing to maintain the Office Space; g. Failing to insure that the Plaintiff would receive a salary as required; h. Demanding commissions to which he was not entitled; WHEREFORE, Plaintiff demands judgment in his favor and against Defendant for an amount in excess of the jurisdictional limit for arbitration, together with interest and costs, punitive damages, and such other and further relief as the Court deems just and proper. By: MAY & MAY, P. C, Date' 2.(11.(/0 I # /" /~....... DONALD R. REA Y, ESQ. Attorney LD. # 82498 3483 Trindle Road Camp Hill, P A 17011 (717) 731-1970 Attorneys for the Defendant, Thomas A Speck -20- Exhibit A PRELIMINARY AGREEMENT RE: Triscari Video Services (TVS) 55 Central Blvd. Camp Hill, PA 17011 Established - Jan 1, 2000 Re-negotiation - prior to Jan 1,2001 PARTIES: Partnerl Producer. . . . . . . Thomas A. Speck Partner! Specialist . . . . . . Sebastian Triscari CONTRIBUTIONS: Thomas A. Speck, Materials and Labor to renovate office space at 55 Central Blvd., Camp Hill, Labor to set up equipment and work areas, Oversee planning, production & marketing of video services related to but not limited to, Collaborations with Triscari Productions or others, Approved projects over $5,000.00 or any under, Special events such as Weddings & Recitals, Film or picture transfers with or without sound, Inventory and other documentation recordings, page 1 (ICI.:I.;,.A · PRELIMINARY AGREEMENT CONTRIBUTIONS: ( continued) Sebastian Triscari Office spaces at 55 Central Blvd., Camp Hiff Equipment including- Cameras, tripods, light kits, audio, Hi-B, 1/2" VHS/SVHS & 3/4" editing, electronics racks, monitors, cables, etc., Web site, design and hosting, Technical services and editing software, MUTUALLY AGREED: That both parties accept this preliminary agreement as an outline of a proposed business relationship between Triscari Productions Inc. and the proposed Triscari Video Services and that a contractual agreement be established between the two entities on or about 3/1/2000. Effective 111/2000, In consideration of the proposed partnership T.V.S. is to pay Triscari Productions Inc. the following: $40.00 per month for utifities 50% of it's profit. page 2 PRELIMINARY AGREEMENT MUTUALLY AGREED: ( continued) Sebastian Triscari agrees to reimburse Thomas A. Speck for costs of renovations to the office space if the described business relationship is terminated, by either party, prior to 3/1/2000. Effective 3/2000, Under contract T.V.S. is to pay: $40.00 per month for utilities $400.00 per month for office rent $100.00 per month for Equip. lease 30% of it's profit Thomas A. Speck agrees to a two (2) year non-compete agreement within a 60 mile radius of Camp Hill, PA. _J~ V - Sebatian Triscari Triscari Productions Inc. . ,,-La .f~ Thomas A. Speck Triscari Video Services page 3 Exhibit B " REVISED PRELIMINARY AGREEMENT RE: Triscari Video Services 55-B Central Blvd. Camp Hill, PA 17011 Established - Jan 1, 2000 Revised - February 29,2000 Re-negotiation - prior to Jan 1, 2001 PARTIES: Partnerl Manager. . . . . . Thomas A. Speck (50% interest) Partnerl Associate. . . .. Sebastian Triscari (50% interest) MUTUALLY AGREED: That both parties accept this revised preliminary agreement as a current outline of a proposed business relationship between Sebastian Triscari representing Triscari Productions Inc. and Thomas A. Speck representing the newly created Triscari Video Services and that a contractual agreement be established between the two parties in May, 2000. PAGE 1 5\ ~5 ~J(":I.:" · 8" ....., "Sf REVISED PRELIMINARY AGREEMENT In consideration of the agreement Thomas Speck agrees to the following work and contributions to the offices owned by Sebastian Triscari at 55-B Central Ave. Camp Hill, PA. Purchase $500.00 of building materials for renovations, Provide labor to renovate and paint office space and to set up equipment and work areas (approx. 4 weeks = $2,500.), Deliver office furniture and custom tops valued at $2,000.00, Provide the following computer components for an editing system; 450MHz tower system with 128 MB of RAM, AGP video card, 24X CD rom, 3 1/2" floppy, stereo speakers, modem, keyboard, mouse, pad, (1) 2 Gig. boot drive, (1) temporary 13 Gig. write to drive, labor & Windows 98. Total contribution valued at approximately $1,000.00. Description of duties of Thomas A. Speck: . Oversee planning, produ'ction & marketing of video services related to but not limited to, , Special events such as Weddings & Recitals, Film or picture transfers with or without sound, School events such as sports or the arts, Inventory and other documentation recordings, Approved projects over $10,000.00 or any under, Collaborations with Triscari Productions or others, PAGE 2 +<; REVISED PRELIMINARY AGREEMENT In consideration of the agreement Sebastian Triscari agrees to the following contributions to Triscari Video Services, Provide said office space for use by Triscari Video Services, _ J"'\" To facilitate use of equipment by Triscari Video Services L~.! ,/ . including- Cameras, tripods, light kits, audio equip., Hi-8, " 1/2" VHS/SVHS & 3/4" editing, electronics racks, monitors, controllers, cables, etc., Technical services to oversee the connecting of equipment and components so as to assure their proper functioning, Provide the following computer components for an editing system; video capture board, hard drive and $500.00 to purchase (2) 21" svga mqnitors and cables, etc... to complete a working system. Total contribution approx. $1,000.00, Development and animation of Triscari Video Services logo as well as multi-page Web site design and hosting, Triscari Productions to purchase office furniture and desk tops, delivered by Thomas Speck, at a cost of $2,000.00, 9Pz' ,To extend to Triscari Video Services $2,500.00 in operating it' '"t.,C/ / capital as an interest free loan. The loan is to be paid back // ( in $500. installments. One installment will be due during . / \ each of the first 'five months that Triscari Video Services , exceeds $10,000.00 in business during the month. PAGE 3 2>1 ~ REVISED PRELIMINARY AGREEMENT Furthermore, it is mutually understood and agreed that, Triscari Video Services shall pay an annual salary of $41,500.00 to Thomas Speck as general manager, Triscari Video Services shall pay Sebastian Triscari $500.00 per month as rent for office facilities, to begin April, 2000, Triscari Video Services shall split it's profits between Sebastian Triscari and Thomas Speck, 50% to both, / (It is understood that the completed editing system and office l computers shall be the property of Triscari Video Services, Triscari Video Services will pay a flat 10% commission to Sebastian Triscari on productions, over $2,500.00, generated by him and his 'efforts, Triscari Productions Inc. shall pay a flat 10% commission to Thomas Speck on productions generated by his efforts, Sebastian Triscari agrees to reimburse Thomas A. Speck for costs of materials to renovate office space if the described business relationship is terminated, prior to 5/112000, Thomas Speck will agree to a non-compete agreement. Sebastian Triscari Triscari Productions Inc. Triscari Video Services PAGE 4 Exhibit C rRISCARI VIDEO SERVICES 55-B Central Boulevard Camp Hill, PA 17011 (717)-909-0745 INVENTORY UNIT #1 CAMERA SONY 3 ~d Hi 8 DXC-325 & case f 7J '1fJ(J Batteries (3) .f 9{," 3> '-=, _;< g'2 ()(') Charging Station I /)b. 01> Wise Guy charger & AC converter "f a,b. <l1\ Jj,,} rl\ Miller Tripod & case , J- Miller L.W. Dolly '( d- ~ JVC TM41AU mini color field monitor J.-1Oc.J UNIT #2 CAMERA SONY DXC-M3A & case SONY 3/4 BVU-150 Field deck Batteries (2) Anton Bauer charger & charging adapter NC AC Power adapter Quickset Tripod D- 2 Rolling Base Panasonic Quintrix n Color field monitor Page 1 J1 ~)OO I .y L! ')10 I /<0 ,611 (}.O6 ;;Vu '-:;:::?f L /rU - E" J( a- ; It;... \\ ( II INVENTORY continued UNIT #3 (lockdown) CAMERA JVC-KY 2000 (w) AC adapter AMPEX 3/4 Field deck JVC 3/4 field deck (backup) Davis & Sanford rolling tripod JVC CX 6l0DS mini color monitor UNIT #4 (incomplete) CAMERA Panasonic WV 3400 Panasonic NV-8420 VHS Field deck SVHSNHS UNITS PANASONIC Omni movie HQ AFX CCD & case PANASONIC Omni movie HQ AF SVHS & case Batteries ( ) (2) Panasonic power supply/charger (w) case Sony RM-E300 editing controller & titler Hitachi VHS movie, power supply & case Tripod Page 2 I~ (IV () -- 10 C ,- :LrO 6 1(1 cl d-o ~ 1,1t) U IfG cJ 0 s--ci '- 1006 I po::; I DO INVENTORY continued LIGHTING Strand case (4) IANEBEAM 1000 var. spots (w) bam doors (4) Light Stands Photo-Flex soft light kit LOWELL case (3) DP lights (w) bam doors (1) Stand TOTA-SYSTEM (2) Tota-Lights (5) Tota-mounts (5) Flexi-shafts (2) Lrg, Tota-flectors (1) Un-brellas (1) Tota-Pouch (2) Tota-clamps (1) Tota-tatch (5) Lrg. Tota-flags (1) Sm. Tota-flag (2) D screens (1) Stand (3) Flag frames KOBOLD hand held spot FREZZI Mini light (w) SONY BC-130W Battery Charger SONY NP-4000 Rechargeable Battery Pack , SOUND (2) SONY lapel mikes I~ 'f;2. -- (1) PANASONIC shot gun mike (1) Telescopic mike boom Page 3 , /~d y SI "JI;J.. n< Y -::.. (pDO, 0 () - 100,00 /)-4 -- ~~S-O .!( ,0 - ~a<Yo . '3~."" 1'tfJ,/tJ -- ~ 3oc1 4'~ I {-o - INVENTORY continued EDITING SUITE- (2) NC CR-600U 3/4 UYCR (source) (1) lVC CR-850m 3/4 DYCR (recorder) y 3,)00 r-?- C; ABNER controller (1) P ANASONIC 6300 VHS Editing deck (1) SONY Photo Capture Camera (1) TAMRON FOTOVIX film\video processor (slides) EFFECTS ALTA CENTAURUS still store edit/effects CPU, Key board controller COMMODORE AMIGA 2000 VIDEO TOASTER CPU, Keyboard & Mouse NON-LINEARlDIGITAL ADOBE PREMIERE 450MHz CPU (w) AT! 32MB Capture board 24X CD ROM, 16 bit stereo, 2 + 13 gig, hard drives (2) 19" ffiM 2IP Monitors keyboard, mouse Page 4 Y7 dJO " ffJ<;U U "6 .; d--J , <j SO ~ I J J/' I {'tJ 6 I i1/ldde; ~I (I, J ) () 4 ('0) . , 12 (HJ6 INVENTORY continued rJebD ~\S MONITORS (1) 18" Panasonic Color Monitor (main) (2) 13" Panasonic Color Monitors d- \t t- (1) 13" Commodore 1084 Color Monitor (amiga) (2) 11" Taxan Chromo Display Monitors 5 () 'f'J- (1) 8" Panasonic Twin pack B& W (1) 7" Panasonic Twin pack Color (1) 5" Sony Trinitron Color Tn-pack SOUND TASCAM M-308B Sound board Pioneer CD player Pioneer Tuner Equalizer & Controller (2) APM Speakers 1$"'JtJ i--:l. (2) Auratonen Speakers if s-o X 2- Recording booth DUPLICATING (1) RGB Computer/ SVideo converters (2) VDA-6 distribution amp. (10) GE HQ VHS VCRs in rack VIDEO PROJECTOR KODAK LC500 Page 5 VhGES J; ~1~o 4 r~~ ("O(} if I 00 I{ 30D f/ to D:f" ~ 75fj ~ !Jl)O fisc "1 dO -t1dd . f M 11u& :J.. {O ~1 {~~--'() f/J.5()o. I INVENTORY continued RACKS (2) 77" tall racks (4) 48" rack units (2) 17" top racks 'i :;L""- (j :L (f <l (tJd OTHER EQUIPMENT TEXTRONIX 1410 Signal Generator CANARE Patchbay IDTACID RR-230 1" (reel to reel) lVC Editing Control Unit RM-86U Office Wave 133 Mhz (w) 24X CDROM Panasonic Printer 486 CPU (word processing) Illuminated Sign ASSORTED CABLES YJ-- t-{ (<.?- TOTAL VALUE OF INVENTORY l' ")(50 ::1~lfd ~ - --0/<(,' 20 () ,--- 1T I )' dJ ..-:--- ;:f 1. ('6 c) ~ J/ ~(JU I \ ( ~d , If / <)iJ P30 D t; ~D $ '2./6() 0 $ ~S(/')()n.oo I Sebastian Triscari ,/ Page~ '" Thomas A Speck Exhibit D INVESTOR AGREEMENT RE: Triscari Video Services 55-B Central Blvd. Camp Hill, PA 17011 Established October, 2000 PARTIES: Partner/Manager. . . . . . . . . . Thomas A. Speck (47.5% interest) , Partner/Associate. . . . . . . " Sebastian Triscari (47.5% interest) Partner/Investor. . . . . . . . .. Ken Stephan (5% interest) MUTUAllY AGREED: That all parties accept this agreement as the basis for a working business relationship. It is understood that Ken Stephan shall invest the total amount of $10,000.00 into Triscari Video Services (AKA, Tri Video Services) for the purchase of equipment and the operations of said company. That, in consideration of this investment capital, he shall receive an interest share of 5% of the company. It is understood that Thomas Speck will reduce his previous 50% interest to 47.5% so as to provide for half of Mr. Stephan's interest share. It is understood that Sebastian Triscari will reduce his previous 50% interest to 47.5% so as to provide for half of Mr. Stephan's interest share. '~ , Page 1 tr1-S W (It I.: ,.+ "J)" ~ Triscari Video Services shall distribute profit dividends between the three partners, based on these newly established interest shares. It is also understood that Triscari Video Services will purchase all existing office furniture and custom tops from Mr. Triscari at a total cost of $2,000.00. This furniture will then become part of the existing inventory of Triscari Video Services at 55-B Central Blvd. All other applicable agreements, previously established between Sebastian Triscari and Thomas Speck, will remain in full effect. The above agreement is thereby accepted and this reorganization of interest shares is hereby established. ~_(2 Sebastian Triscari JUt Page 2 Exhibit E 12/14/2001 15:15 8544899200 1%/14/0t 11:18 FAX '711. 81Z! Dl03' ; ~ i GAFFNEY FAMILY MED lay'" 1Il~ PAGE 01 . Kenneth Stephan, ran.fer and assign to Thomas Speck. .n Thomas Sp~k ha lllb'1' el to &CCilpt from Kenn,eh Stephan, M.D.. all of Pr. st~han'8 ght, title ~nd interest in and to tQe T i, Video P&r~ner.~ip ~4 11 of ens aseets and personal pro~e~ty th4lreof. iJ(.nn~th $tep I M.D., hereby abso:l.utely and uncQndit~onall~ wi~bdr'w. from allaspacts of the Tri Video Partnersh~p" iqcludins ~he withdrawal and relin~~.hment of an ,and all o~er.l1ip [nte, .t therein _ ,Thoma. sp~c:k l'rolllisea to Kenneth Strepharf. )IIi.D.,. $10,000 :\.n c:on.iderat.icn of the transfe of ~he pa2jtner~hipi int ,r.st. . . i . , ,2. '! i' , ,. Thc~. Sp4il It ',agreeS tO'1'ele SIl.: incl mnify and hQld harml.... Kilnnath Stephan M.D., from. and aia1in.t any and alldutil!lli, obl:igat~onsl and lia~i~it1.,. of~thei Tri Vid.o Partner.hip includ1ng, but not nece..arily 1i it.~ to, anyaetj,gn, caulle of action, claim or d.l.'II~d w~tllce u !bY, IIY thlrd party. ','", Ii' . 3., "This Agre~ment may be, executed in any ,number of]coun e~.rt., aDd each couneerpart .hall for all purp li- es be deer-Ci Oil oljig1n 1. INwt~S , the part i.. hereto have duly antered into thill: Aasi ~.~nt thilll u'" day of December. 2001. . \. , E 1<" ,t ,:, "E II Exhibit F ,- "TiII-VlDeo SERVICES BUSINESS PLAN TRISCARI VIDEO SERVICES 55-B Central Boulevard Camp Hill, PA 17011 (717)-909-0745 Principals: Sebastian Triscari - Thomas A. Speck TABLE OF CONTENTS Title page and contents 1. Executive Summary 2. Business Description 2. Products & Services 3. Marketing Plan 4. Operations and Management 5. , Activity 5. Financial Components 6. 1. ()tL:I"..,. "r" Executive Summary The purpose of this business plan is to describe the services we offer and the objectives of the company. It is our goal that the reader will recognize the unique position of the company. The company benefits from an affiliation with the well ,established Triscari Productions.Inc. and the equipment and industry experience of its president, Sebastian Triscari. The potential for early financial returns will be enhanced due to the contributions and minimal start- up and operating expenses arranged by the general manager Thomas Speck. These factors ~hould be of particular interest to the potential investor. Business Description Triscari Video Services a.k.a. "Tri- Video Services" is a video media production company centered in Camp Hill,PA. The company was established in January, 2000 through a general partnership agreement between Sebastian Triscari and Thomas A.' Speck. The company services persons wishing to use any of several video fonnats to record; document or inventory. We will also edit, produce and reproduce finished videos used for presentations, entertainment, training or marketing. 2. Products and Services Tri Video Services utilizes broadcast quality cameras and professional audio and lighting equipment. Our editing facility offers a full range of video effects. The facility is centered around a solid 3/4" linear editing system. We use photo capture and offer film transfer to video. Our studio's audio capabilities include a sound booth for narrative recordings. We have also added a non-linear editing system to incorporate the newest computer enhanced digital media in our services. Our facility has been newly remodeled and prepared for optimum use of space. An impressive array of equipment has been installed throughout. All this has been done through the efforts and contributions of the primaries so as to minimize the startup and maintenance costs of the company. We are now poised to operate and make money.' Our target market includes all those who are drawn to the well established and generally used media of video tapes. Specifically those who are seeking better than average services without a large corporate budget. Our plan is to keep our own budget down so we can more easily meet the needs of those with smaller budgets. Possible applications of our services would include Weddings, Recitals, School Activities, Sports, Seminars and other Special Events. Our services will be used to enhance presentations and make training easier. Video taping can also be used to verify or inventory items or structures, monitor the progress of a project, record statements or document a scene. We will continue to find and develop many more areas where we will be of service. 3, Marketing Plan Tri Video Services was initially established to provide a referral company for a growing number of clients who were being passed over by Triscari Productions Inc. for larger contracts. These smaller contracts however could cover a substantial amount of this companies annual financial needs. The company will also research hundreds of video production master tapes which were obtained by Triscari Productions through business buyouts. After detennining client identity, they will be contacted and made aware of the existence of these useful and potentially valuable materials and our services. Additional sales contacts will be made through personal and business-to- business inquiries to further expand our client base. We already have a number of very valuable clients plaiming profitable projects in July. An informative web site is being developed and directory adds and listings will be used to make company information available to potential consumers. It is important to note that we are not in competition with Triscari Productions. In fact, the efforts of each company will have a supporting effect on the other. The end result will be a broader range of services to cover a broader range of clientele. We will also capitalize on each of our successes through active pursuit of referrals and testimonials. The range of applications for our services is huge. 4. - ~~.' _..~.~~"...'~"'~ .".-..,..._~ ,.., ^,.,,'..l;."," r,. .~..-~~--,,--,-,....,".~ Operation and Management Tri Video Services has a staff of one. As General Manager, Thomas Speck will oversee the daily activities of the company. Mr. Speck will make sales contacts, detennine client needs and draftproposals. He will schedule productions and supervise the step by step completion of each project to ensure an appropriate and timely finished product. Equipmeijt maintenance will be generally done in house. A service arrangement will be made with an outside entity for electronic repairs. Monthly rent for the office space is $500.00. Utilities are $60.00 per month. The company will also benefit from the assistance of persons wishing to be involved in the productions. Clients often take a very active role in their production. Local students seeking an internship with a production company are often available to work with us and gain experience in the industry at little or no costto the company. There is also agrowing pool of persons who have ,or wish to gain experience in the field. They will periodically work with us on an "as-needed" bases. Taking advantage of these resources will enable us to meet the needs of the clients without creating additional expenses. . ' Activity We have already had an exciting start to our business. Later this month we, will be shooting an evening of Barbershop music in Hershey, We are planning for a week long shoot for Messiah College in July. We are also scheduling for weddings and other special events. A doctor has asked us to record some basic procedures and we are very pleased that the Public Safety Center at HACC has expressed interest in our services for their broad training needs. The list goes on. 5. Financial Components Book keeping will be facilitated by using Quick-Book Pro. Weekly updates and a monthly reconciliation will. be perfoi1t1ed on the accounts. An accounting firm will review quarterly need.s and prepare all tax forms. It is .our opinion that the company will quickly develop a client base sufficient to meet it's financial needs. Overhead has been kept to a minimum so carrying.costs are low. Our production costs have been further reduced by recycling tapes. We currently have sufficient tape for our editing needs. We feel that the best financial tool for the company would be a business line of credit in !he amount of$10,000.00 with an.artached Visa card for easy access. The'line can be collateralized by the valuable editing equipment . which is free and clear of lean. The estimated value of our current equipment is $95,000.00 It is not anticipated that anyfurther financial assistance will be required during the fIrst year of operation. . It is anticipated that the company will reach an average of more than $2,000.00 in business perweek dUring the second quarter of the year. At this . point the company will be in a position of self sufficiency. Sincerely, ~~ Thomas A. Speck. ~ ~~~~. Sebastian Triscari 6; Exhibit G TVP INC. & Tom Speck January 1, 2000 to December 30, 2000 Re-nogatiation January 1,2001 - Non-compete clause 2 years in Triscari Production contribution: 1. Location - 55 Central Blvd, Camp Hill, P A 17011 2. Sign Space - 2 sides - 2 lines 8" x 36" 3 . Web site - Design hosting 4. Equipment - 3/4" Edit, Y2 VHS - SVHS, Hi-8, Light kit, tripod - several cameras 5. Good Name 6. First 2 months - No rent. Thereafter $500.00 month plus Y2 of the utilities Tom Speck Contribution: 1. Materials 2. Labor - Finish space, assemble equipment Products: 1. Film transfers 2. Dance recitals 3. Weddings 4. Special events 5. Video inventory 6. Pictures & music to tape 7. School events 8. Collaboration with Chuck Shults Enterprise First 2 months Thereafter 50 - 50 split 70 - 30 split Income Projections $4,000/ Month $10,000/Month $15,000 / Month 2nd Year $250,000 Worst Case Expected Best Case $48,000/ Year $120,000/Year $180,000 /Year , 'I ~ "6" f....... VERIFICATION I, Thomas A. Speck, the Plaintiff herein, hereby verify that I have read the foregoing Complaint, and that the information contained therein is true and correct to the best of my knowledge, information and belief. I understand that false statements herein are made subject to the penalties of 18 Pa.C.S. Section 4904 relating to unsworn falsification to authorities. Th~~~L Date: n-l~ ~ ~ ill ~ 1 l ~ ~ ~ 0 Q "-> . ?~?- ~ 8 6 '.--:J , ;S -r.J i:" i<<-1 ~:lf7 :.') ......... --..0 j ~ I ..".- ..... 0''': c/~~ ,C ~ "tJ~ ~ r:: -~"""'I " '- i....) -.Q p:-~ :'"? 1,- .. <. j '.'1 ~~:~.) i.y 'j :.-1 .;- L_ -~'.,>- J ~ '" ~ O. -~ ,. . ~ . SHERIFF'S RETURN - REGULAR CASE NO: 2001-07086 P COMMONWEALTH OF PENNSYLVANIA: COUNTY OF CUMBERLAND SPECK THOMAS A VS -".- TRISCARI SEBASTIAN G Z JASON VIORAL , Sheriff or Deputy Sheriff of -- ..... ..... ..... ".- Cumberland County, Pennsylvania, who being duly sworn according to law, _ ... _. says, the within COMPLAINT & NOTICE was served upon TRISCARI SEBASTIAN G Z the DEFENDANT , at 2058:00 HOURS, on the 20th day of December, 2001 at 9 SOUTHWATCH LANE MECHANICSBURG, PA 17055 by handing to SEBASTIAN TRISCARI a true and attested copy of COMPLAINT & NOTICE together with ...- and at the same time directing His attention to the contents thereof. - ..... .... ..... ,....... ... ... ...." Sheriff's Costs: Docketing Service Affidavit Surcharge So Answers: 18.00 5.20 .00 10.00 .00 33.20 ~>J?,.,.-~~ R. Tomas Kline 12/21/2001 MAY & MAY Sworn and Subscribed to before me this V~ day of G.~ J,~.u A.D. o f/;,""o/ ~ Prothonotary' · By: ~ r;}~ DftP / Y Sheriff , , / /' f /'" j/ ... -- ..... ..... ..... ".- ... ... .. Barbara Sump1e-Sullivan, Esquire Supreme Court #32317 549 Bridge Street New Cumberland, PA 17070 (717) 774-1445 THOMAS A. SPECK, Plaintiff IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA v. CIVIL ACTION LAW AND EQUITY SEBASTIAN G. Z. TRlSCARl, Defendant NO. 2001-7086 DEFENDANT'S PRELIMINARY OBJECTIONS AND NOW comes the Defendant, Sebastian GZ. Triscari, by his counsel, Barbara Sumple-Sullivan, Esquire and files Preliminary Objections to the Complaint filed by Thomas A. Speck: I. Preliminary Objection in the Nature of Failing to Plead in Conformity with Law or Rule of Court: 1. Pa. R.C.P. 1028(2) provides that preliminary objections may properly be filed if Plaintiff fails to plead in conformity with law or rule of court. 2. Pa. R.C.P. 1019(a) requires all complaints to plead material facts on which the cause(s) of action is (are) based in a concise and summary form. 3. Plaintiffs complaint violates Rule 1019(a) in that: (A) The pleading states irrelevant and immaterial allegations which extend without cause or reason and which render the pleading redundant. (B) Said Complaint sets forth evidentiary matters only and pleads evidence in lieu offacts. 4. Pa. RC.P. IOI9(b) requires averments of fraud to be averred with particularity. 5. Plaintiff s complaint violates Rule 10 19(b) in that Plaintiff fails to aver with the required particularity the factual basis of his allegation of fraud. 6. Pa. RC.P. 1019(f) requests averments of special damage to be stated with particularity . 7. Plaintiffs complaint violates Pa. RC.P. 1019(f) in that he has failed to specifically plead items of special damages or to even sufficiently itemize the damages alleged to be sought. This includes allegation of punitive damages. 8. Plaintiffs complaint violates Pa. RC.P. 1022 in that numerous paragraphs include multiple statements in lieu of one material allegation making it impossible to respond to. II. Preliminary Objection Based on Insufficient Specificity ofthe Complaint: 9. Pa. R.C.P. 1028 (a)(3) requires a complaint to be plead with sufficient certainty to allow the Defendant to ascertain from the pleadings the present state and nature of the claim with sufficient precision to prepare a responsible response. 10. Plaintiffs complaint fails to meet this requirement in that: (A) Plaintiff fails to plead facts or state a cause of action for defamation of character, slander, commercial disparagement, fraud or misrepresentation; (B) Plaintiff has failed to specify damages with the required specificity or plead a cause of action for punitive damages. 11. Defendant is unable to respond to the complaint in its current form and ask that Plaintiff be required to plead appropriate factual averments for response to determine basis of his allegation. 2 III. Preliminary Objection to Legal Sufficiency of Pleading: 12. Plaintiff has failed to plead the required components of a cause of action for torts he attempts to plead, such as misrepresentation, commercial disparagement, defamation or slander. 13. Plaintiff has failed to state a cause of action for punitive damages. 14. Plaintiff has failed to plead a cause of action in negligence. WHEREFORE, Defendant, Sebastian G.Z. Triscari, respectfully request this Honorable Court to dismiss Plaintiffs Complaint. Respectfully submitted, DATED: Januaryf: 2002 Barbara Sumple-Sullivan, Esquire 549 Bridge Street New Cumberland, P A 17070-1931 (717) 774-1445 Supreme Court l.D. No. 32317 Attorney for Defendant Triscari 3 Barbara Sumple-SuJlivan, Esquire Supreme Court #32317 549 Bridge Street New Cumberland, PA 17070 (717)774-1445 THOMAS A. SPECK, Plaintiff IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA v. CIVIL ACTION LAW AND EQUITY : NO. 2001-7086 SEBASTIAN G. Z. TRlSCARI, Defendant CERTIFICATE OF SERVICE I, BARBARA SUMPLE-SULLIV AN, ESQUIRE, do hereby certify that on this date, I served a true and correct copy of Defendant's Preliminary Objections, in the above-captioned matter upon the following individual(s), by United States, First Class Mail, addressed as follows: Donald R. Reavey, Esquire MAY & MAY, P.C. 3438 Trindle Roa Camp Hill, PAl 1 Barbara Sump Ie-Sullivan, Esquire 549 Bridge Street New Cumberland, PA 17070-1931 (717) 774-1445 Supreme Court I.D. 32317 Attorney for Defendant Triscari DATE: Janua~, 2002 4 (') R5 0 c:: ~n -off. <- '-j """ L.,_ 2:'rn ;;,:: r-l''7jJ] :n 2:5;' , ""1"Jr'71 0,: '.0 "LJ9 ;::$< '~-~ ~;, ,,0 " "."- J, :!E8 - -,L"1'l - ~(5 5>c:: r::> c.i rn ~ ."""1 W ~ (X> -<: q..,,~<,"' "~d.."'~~ "- en f; '::; c>:. N.. ~-,._- ~- u...!Q C\; :::> oS: :;,!G ~ C.1;E :~~3 f'~' - Cl... 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V'l : NOU::>V'lIAI::> : lUllpU:lJ:lG 'rnv::>snu "Z 'D NVUSVIIHS 'A VINV A 'lASNNHd 'A~NflO::J GNVTIlHHWO::> SVH'ld NOWWO::> 1:10 nmo::> HH~ NI JJHU!l1ld ')I::>HdS 'V SVWOH~ ,V1>I-17LL (LIL) OLOL I V d 'PUllPQqwn:) M.QN lQ:lJjS Q8P!la 617, L I flf# l.I1IO:) Qwoodns alJTIbsa 'UllA!IlnS-Qldwns 1U1lq.ma 'h"d",,~;)'''''';1ii'lf~ .. t,,~ , <ji'~ ~ " (') <:) 0 c: '" -r, ".. '- I -Oft: .'f... ,.., rn fTl ;;Z :;'77) ;Z:'-, -', I '-j~ "'s f?i, \.0 ='2 ~;~ ~" ZC) )';-0 ry ~c: ~ .:..:> .....". :'::J co -< Barbara Swnple-SuIlivan. Esquire Supreme Court #32317 549 Bridge Street New Cumberland, P A 17070 (717) 774-1445 THOMAS A. SPECK, Plaintiff : IN THE COURT OF COMMON PLEAS : CUMBERLAND COUNTY, PENNSYL VANIA v. : CIVIL ACTION : LAW AND EQUITY : NO. 2001-7086 SEBASTIAN G. Z. TRISCARI, Defendant CERTIFICA TE OF SERVICE I, BARBARA SUMPLE-SULLIV AN, ESQUIRE, do hereby certify that on this date, I served a true and correct copy of Defendant's Preliminary Objections, in the above-captioned matter upon the following individual(s), by United States, First Class Mail, addressed as follows: Donald R. Reavey, Esquire MAY&MAY,P.C. 3438 Trindle Roa Camp Hill, PA 1 1 Barbara Sump Ie-Sullivan, Esquire 549 Bridge Street New Cumberland, P A 17070-1931 (717) 774-1445 Supreme Court LD. 32317 Attorney for Defendant Triscari DATE: Januarr::r., 2002 4 - Barbara Sumple-Sullivan, Esquire Supreme Court #32317 549 Bridge Street New Cumberland, P A 17070 (717) 774-1445 THOMAS A. SPECK, Plaintiff : IN THE COURT OF COMMON PLEAS : CUMBERLAND COUNTY, PENNSYL VANIA v. : CIVIL ACTION : LAW AND EQUITY SEBASTIAN G. Z. TRISCARI, Defendant : NO. 2001-7086 v. KENNETH STEPHAN, Additional Defendant PRAECIPE FOR WRIT TO JOIN ADDITIONAL DEFENDANT TO THE PROTHONOTARY: Please issue a writ to join KENNETH R. STEPHAN, as an additional Defendant in this action. DATE: 1//Idi9- r ' Barbara Sumple-Sullivan, Esquire 549 Bridge Street New Cumberland, PA 17070-1931 (717) 774-1445 Supreme Court I.D. 32317 Attorney for Defendant Triscari Barbara Sump1e-Sullivan, Esquire Supreme Court #32317 549 Bridge Street New Cumberland. P A 17070 (717) 774-1445 THOMAS A. SPECK, Plaintiff : IN THE COURT OF COMMON PLEAS : CUMBERLAND COUNTY, PENNSYLVANIA v. : CIVIL ACTION : LAW AND EQUITY : NO. 2001-7086 SEBASTIAN G. Z. TRISCARl, Defendant v. KENNETH R. STEPHAN, Additional Defendant WRIT TO JOIN ADDITIONAL DEFENDANT TO: KENNETH R. STEPHAN Family General Practice 149 W. Hanover Street Biglerville, Pennsylvania 17307 You are notified that SEBASTIAN GZ. TRISCARl has joined you as an additional Defendant in this action, which you are required to defend. Prothonotary . . Barbara Sump1e-Sullivan, Esquire Supreme Court #32317 549 Bridge Street New Cumberland, P A 17070 (717)774-1445 THOMAS A. SPECK, Plaintiff v. : IN THE COURT OF COMMON PLEAS : CUMBERLAND COUNTY, PENNSYL VANIA : CIVIL ACTION : LAW AND EQUITY SEBASTIAN G. Z. TRISCARI, Defendant : NO. 2001-7086 v. KENNETH STEPHAN, Additional Defendant CERTIFICATE OF SERVICE I, BARBARA SUMPLE-SULLIVAN, ESQUIRE, do hereby certify that on this date, I served a true and correct copy of WRIT TO JOIN ADDmONAL DEFENDANT AND PRAECIPE FOR WRIT TO JOIN ADDmONAL DEFENDANT, in the above-captioned matter upon the following individual(s), by United States, First Class Mail, addressed as follows: Donald R. Reavey. Esquire MAY & MAY, P.C. 3438 Trind1e Road Camp Hill, PA 17011 DATE: January g, 2002 Barbara ump1e-Sullivan, Esquire 549 Bridge Street New Cumberland, PA 17070-1931 (717) 774-1445 Supreme Court 1.D. 32317 Attorney for Defendant Triscari p "'" :o:S;: ~R? ;?: 1.-' CI5.l'- ;::s~' 'fie ;'Er: ~C5 c- ;?: ~ w CoO R5 1;;; ~ o 1'1 .:iJ ~~:,i;; ',!h <--i'r ~-i'.:fY 52':;!:! cJri !if -< I '-0 ~ f\J " . Cumberland County, ss: The Commonwealth of Pennsylvania to Kenneth R. Stephan (Name of Additional Defendant) You are notified that Sebastian G. Z. Triscari (Name (~) of Defendant (s) has (have) joined you as an additional defendant in this action, which you are re- quired to defend. Date Janlll'n:}' 9. 2002 Curtis R. Lonq IIrotbonotary ~~.,....p 2 ?f./?///rt'o r- Deputy (SEAL) Kenneth R. Steghan Family General Practic 149 W. Hanover Street Biglerville. PA 17307 . ~ C:I ~ '1 H-JfU1~ ~ o~ ~. 1-" . I 0- O~ <g. 1-" 5 *-J~C:I~ S f-' 1(1) -J F1 >-4,c '< st en k3t ~Ql g~ 1-" ~ :J> w..... <0 ~ f-' :<l . ~~[: ~ . ~~ I ffi en l"tf-' l"t 11 (1) :i\l f-' (1) ~ . m I t""..... 1 ~ 'Ol"tf? 00 f-' ~ :J>' f-' ;.- -J f-' to:I>-4 w n ..... 1-" '!jZ .... 0 l"t -J ~ .... -J 1-" 0 ~a ;: n ;;l -J 0 (1) 0 " I 0> !!. j ..... $ '" >z i F - ;.- w r s ..... ~ 3 II e- ~ ... PRAECIPE FOR LISTING CASE FOR ARGUMENT (Must be typewritten and sul::rnitted in duplicate) TO THE PROTHONOTARY OF CUMBERLAND COUNTY: Please list the within matter far the next A.rgunent Court. --------------------------------------------------------------------------------------- CAPTION OF CASE (entire caption must be stated in full) THOMAS A. SPECK, ( Plaintiff) vs. SEBASTIAN G. Z. TRISCARI, (Defendant) vs. KENNEl'H R. S'l'EHAN, (Additional Defendant) No. 2001-7086 Civil 19 1. State matter to be argued (Le., plaintiff's ITOtion for new trial. defendant's danurrer to canplaint, etc.): Defendant, Sebastian G.Z. Triscari's Preliminary Objections 2. Identify counsel who will argue case: (a) for plaintiff: Dohat6 R.Reayey..,ESquire, May & May, P.C. Address: 3438 Trind1e Road, Camp Hill, PA 17011 (b) for defendant: Barbara Sumple-Sullivan, Esquire Address: 549 Bridge Street, New CUmberland, PA 17070 3. I will notify all parties in writing wi thin bolo days that this case has been listed for argurent. 4 . A.rgunent Court Date : May 22, 2002 Attorney far Defendant, Sebastian Triscari Dated: ~-Iq-c)coo.... (") c If:: c N <' ". '"0 ii, '-4 -0 -,- ~fB ::t1 lli;JJ Zr:; N .'om (fj"",::; W '7y ~6 ~\::> """ ,]i-ri ~O ::r ~-S -'1 ~'~t5 .5>0 Y? ~5rn C $ CJl ~ N ;;0 -<: Barbara Sumple-Sullivan, Esquire Supreme Court #32317 549 Bridge Street New Cumberland, P A 17070 (717) 774-1445 THOMAS A. SPECK, Plaintiff IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYL VANIA v. CIVIL ACTION : LAW AND EQUITY : NO. 2001-7086 SEBASTIAN G. Z. TRlSCARI, Defendant v. KENNETH R. STEPHAN, Additional Defendant PETITION OF DEFENDANT, SEBASTIAN G.Z. TRlSCARI FOR POSSESSION OF COLLATERAL IN ACCORDANCE WITH SECURITY AGREEMENT ASSIGNMENT Petitioner, Sebastian G.z. Triscari, by and through his counsel, Barbara Sumple-Sullivan, files this Petition for Possession of Collateral in Accordance with Security Agreement Assignment. In support hereof, Petitioner asserts as follows: 1. Petitioner is Defendant, Sebastian G.Z. Triscari, an individual doing business at 59 Central Boulevard, Camp Hill, Pennsylvania 17011. 2. Respondent is Plaintiff, Thomas A Speck, an individual residing at 4408 Carlisle Pike, Camp Hill, Pennsylvania 17011 and currently employed as a police officer for Hampden Township, Cumberland County, Pennsylvania. It is believed and averred that Respondent may be continuing in business ventures utilizing video and recording . equipment acquired by Triscari Video Services, the business ventre which is the subject of the above captioned litigation. 3. Plaintiff filed a Complaint in this action on December 18, 200 I after Defendant had advised Plaintiff, through counsel, of his intention to take possession of certain video and electronic equipment. 4. Defendant filed preliminary objection to the complaint on January 6, 2002 and a brief in support of the Preliminary Objections on March 15,2002. After the listing of the objections for argument by Plaintiff, the matter was stricken by the Prothonotary from the Argument list without notice to Defendant because of Plaintiff's counsel's failure to appropriately list the matter. These objections remain pending and have been listed for argument by Defendant for May, 2002 Argument Court. 5. The deposition of Plaintiff Thomas Speck has been taken bu Defendant in the matter on January 16,2002. 6. Defendant refutes the allegation of the complaint and avers that Plaintiff, not Defendant, has been the managing partner and Plaintiff has mismanaged the partnership, to the detriment and financial loss of Defendant. Defendant will file a counterclaim. 7. Plaintiff has taken no action to further his alleged efforts for appointment of a receiver as indicated in Count III for providing an accounting or to move to dissolve the alleged 2 . partnership or otherwise safe guard the assets. 8. The partnership had borrowed monies in the amount ofTen Thousand Dollars ($10,000.00) on a line of credit with Commerce Bank on May 4,2000, a copy of said note and security agreement is attached hereto as Exhibit "A." 9. Said note was modified by agreement to extend the maturity date. A copy of the modification is attached hereto as Exhibit "B." 10. A DCC financing statement was also filed giving Commerce Bank a security interest in: All inventory, chattel paper, accounts, equipment, general intangibles and fixtures; whether any of the foregoing is owned now or acquired later; all accessions, additions, replacements, and substitutions relating to the foregoing; all records of any kind relating to the foregoing; all proceeds relating to the foregoing (including insurance, general intangibles and other accounts proceeds). 11. Such collateral included certain video equipment in the sole possession of the Plaintiff which is attached hereto as Exhibit "C." 12. A security agreement was given to Commerce in the assets of the business, which included a certain camera which was alleged to be purchased by Plaintiff for the partnership. 13. Said assets have been in the possession of the Plaintiff when he vacated the partnership location. 3 14. The entire line of credit sum was advanced by Plaintiff without knowledge or consent of Defendant. 15. Plaintiff failed to satisfy the monies due and now alleges the partnership has no funds. 16. After repeated demands by Commerce and lack of any payments from Plaintiff, Defendant proceeded to satisfy the debt outstanding. 17. Under threat of default, Defendant paid the entire indebtedness due and owing to Commerce and was assigned the security interests in the property. A copy of said assignment is attached hereto as Exhibit "D." 18. Demand had been made upon Plaintiffto allow Defendant access to peacefully remove the items subject to the security interest. 19. This demand has brought no return of the equipment. 20. Defendant believes and therefore avers that Plaintiff may be utilizing the equipment for his sole benefit. 21. Defendant requests that the equipment be provided to him in accordance with his assignment of the collateral to him by Commerce Bank. 4 WHEREFORE, Defendant requests a Rule to Show Cause be issued as to why Respondent should not be given possession of the equipment which is secured by lien assigned to him by Commerce Ban1e DATE: ~ ,2002 Respectfully sub / //' // Barbara Sumple-Sullivan, Esquire 549 Bridge Street New Cumberland, PA 17070-1931 (717) 774-1445 Supreme Court J.D. 32317 Attorney for Defendant Triscari 5 EXHIBIT IIAII I,". { PROMISSORY NOTE TrliICM Video ServIca (nN: 251853479) 55-8 Cenlral Blvd Camp Hili, PA 17011 eornrn.rce BankJHarrlaburg. thUonal AuodIdon MaIn OfficelCol1\lTWlldlll Coat Cllfltar P.O. Box 8588 100 Senate Aven.... CIImp Hili, PA 17001-8598 .c. (3 if '" < Principal Amount: $10,000.00 Initial Rate: 9.250% Date of Note: May 4, 2000 c PRO"SE TO PAY. TrIacarI Video s.vIcM (-Borrower") prom.... to pay to Comrnal"* BanklHlrrlaburg, National Aaaociation (-LIndIr"'), or ,:, ordel, In IawfuJ money 01 the United States 01 America, on demand, the principal amount of Ten ThOUUlnd . 001100 Dol..... ($10,000.00) or so ..0 much .. may be outatMdlng, together with Intareat on the unpakt outsbuldlng principal balance 01 each advance. Interett ,hall be calculated V' from ttte date 01 each advance until repayment 01 each actvance. PAYMENT. Borrow<< will pay thl, 10M Immediately upon lIndIr"' dM1and. In addition, Borroww 'Ntll pay reguIIr monthly plyments 01 all accruad unpafd Interesl due aa 01 each payment date. beginning June 4, 2000, with all aubMquant Interest paymenla to be due on the same day 018llch month.ner that The amuallnterest rate for this Note 18 computed on a 365I'JElO basis; that Is, ~pplying the ratio of the 8MU8llnterest rate over a year 01 360 days, muI~1ed by the outstanding principal balance, nUtlplled by the actual n 01 days the principal balance Is ol,ltstancllng. Botrowet wll pay l.er"$r at Leoder'a add...s 8hown above or at such other pI&ce as ltender may eslgnate In wrtllng. Unlea8 otherwise agreed or requinK:I by applicable lalit, payments wll be applied first to accrued unpaid Interest, theh to principal, and any remaining amount to any unpaid collection CO$1$ and late charges. 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 The ~t prine rate pUJllshed In !he WaI Street JoumaI and In effect as 01 the first day at each blUing cycle prior to the rala change date (the "Index"). The Index 18 not neceasarly the lowest rate charged by Lender on 118 loans. U the Index becorne8 unavailable during the term at this loan, I..ender may designate a aubstitute Index after notice to Borrower. Lender wUl tell Borrower the current Index rate upon Botrower"s request. BofrowElf understands thai lender may make loans based on oIher rales as well. The Interest rate change will not occur more often than each day. The Index CUlranUy 18 1.000% pet annum. The Interest rate to be applied to the unpaikt principal balance 01 thl, Note will be at a ra.. of 0,250 percllflblga polnla over the Index, ....utung In an Inltllll rate 019.250% par annum. NOTICE: Under no circumstances wlllhe Inlerest rate on this Note be more than the maximum rate allowed by applicable law. PREPAYMENT. Borrower may pay aM or a portion ot the amount owed eartier than Ills due. Early payments wI! not, unless agreed to by Lender In writing, relieve Borrower 01 Borrowets obligation to continue 10 make payments 01 accrued unpalcl Inlerest Rathel, they wll reduce the principal balance due. DEFAULT. Borrower wI be In delaultll any 01 the following happ&na: (a) Borrower talslO make any payment when due. (b) Borrower breaks any promise BorrowElf has made to Lender, or Borrower tals to oompIy with or to perform whan due any other term, obligation, covenanl, or condition contained In this Note or any agreement related to this Note, or In any other agreement or loan Borrower has with Lender. (c) Borrower defa~ under any loan, extension ot credII, security agreement, purchase or sales agreement, or any other agreement, In favor 01 any other" creditor or person that may materially affect any ot Bonower'a property or Borl"OWElf's abNIty to repay this Note or perform Borrower's obIlgallona lnder this Note or any 01 the Related Documents. (d) Any rep<<l8tlrlfallon or statemant made or furnished to Lender by Borrower or on Borrower's b8haU Is false or misleading In any material respect either now or at the 1Im& made or furnished. (e) Any partner dies or any 01 the partners or Borrower becomes Insolvent, a receiver Is appointed for any part 01 Borrower"s pmperIy, Borrower makes an 88Slgrvn&nt for the benefit ot creditors, or any proceeding Is COlTUll8fICed either by Borrow&l or against Borrower under any bankruplcy or Insolvency laws. (I) Ally creditor tries to take any ot Borrower"s property on or In which Lendet has a lien or security Interest. This Includes a gamlslvn&nl 01 any of Borrower"s accounta with Lender. (g) Any of the events described In this defaull section occurs with respect 10 any g&lllN1lI partner 01 Borrower or any guarantor 01 this Note. (h) A material adverse change occurs In Borrower's financial condlllon, or Lender believes the prospect 01 payment or performance 01 the Indebtedness Is impaired. (I) Lender In good faith deems ltsell insecure. II any default, other than a delault In payment. Is curable and II Borrower has not been given a notice 01 a breach ot the eame provision of this Note within the preceding twelve (12) months, It may be cured (and no event 01 default wiD have occurred) /I Borrower, after receiving wrllten notice from Lender demanding cure ot such default: (a) cures the default wIIhIn ten (10) days; or (b) /I the cure requires more than ten (10) days, immediately Inltlales steps which Lender deems In Lender's sole discretion to be sullk:ient to cure the default and thereafter continues and completes all reasonable and necesS8f)' steps sufficient to produce compliance as soon as reasonably practical. LENDER'S RIGHTS, Upon default, Lender may, after giving such noUces as required by applicable law, declare the entire unpaIcI principal balance on this Note and a. accrued unpaid nterest immediately due, and then Borrower wlll pay that amcM.I'lt. Upon default, Including faDure to pay upon IInaI maturity, Lender, at Its option, may also, II p&l11VItecI U1dElf applicable law, Increase the varlablelnlerest rate on this Note to 2.250 percentage poInt& over the lndex, The Interet rate wll not exceed the maximum rate permitted by applicable law. Lender may hire or pay someone else to help collect this Note It Borrower does not pay. Borrower aI&o wll pay l.er1dElf that amount This Includes, subject to any IImIIs under appUcable law, Lender's attomeya' fees and Lender's legal expenae& whether or noIlhere Is a lawsuit, including attorneys' fees and I&gaI &xp8l1888 for bankruptcy proceedings (including efforts to modify (I( vacate any automatic slay or 1nj1XlC1lon), appeals, and any anticipated post-judgment collection services. It not prohlbllad by applicable law, Borrower also will pay any court costs, In addIIlon to all other SIXnl provided by law. If J~ 18 entered In connection with this Note, Interest win continue to accrue on this Note aflElf judgment at the Interest rate applicable to this Note at the 1Im& juc:Vnent Is enter"ed. Th" Note haa baIIfI delivered 10 LencI.. and accaptec:I by Lend.. In the ~Ith of PennaytvaniL If there.. a lawault, Borrower..... upon Lendar', reqUMt to submit to ttM JurlacUctlon 01 the courts 01 Cumbarland County, the CommonweIIth 01 p.,n,ytvan... Lander and Borrower hereby walw the right to any )tHy trial In any action, proceeding, 01' counterclaim broughl by either Lender or EkNroww' aglllnal the other. Thl, Note shall be governed by and construad In accordance with tile laws 01 the CommonWNIth 01 p.,n'y1wnla. DtSHONORED ITEM FEE. Borrower will pay a fee to Lender of $10.00 II Borrower makes a payment on Borra.ver's loan and the c:heck or preauthorized charge with which BorI'OW8( pays Is later dishonored. RIGHT OF SETOFF. Borrower grants to Lender a contr&ctuaI securIIy Int&r88t In, and hereby 88S1gna, oorweys, deIIver8, pledges, and transfElfS to Lender all Borrowar's right, tIIIe and Interest In and 10, Borrower's 8OCOLWlts with Lender (whether checking, savings, or SOI11& other account), lncIudlng withoullimltation all accounts h&IcI joInUy with 8OITI8OI'I8 else and aU accounts Borrower may open In the future, excluding however all IRA and Keogh accooots, and all trust &CCOLms for which the grant 01 a aecurity Interest would be prohIb/Ied by law. Borrower authorizes Lender, to the extent parmltted by applicable law, to charge (I( sekltI all sums owing on this Note against any and all such ac:coults. COLLATERAL ThIs Note Is securw.i by III 1 BI l!eo priority security Interest In all buslnsss 3SSotzl of the Boocwer 03 mere fully &8t forth Iri ~ Convnerclal Security Agreement of even date herewith and to be perfecled by UCC-1 Financing Statement. ParaonaI guarantees ot Sebasllan G. TrlSCarl and Thomas A. Speck. PROPERTY INSURANCE. Borrower understands that Borrower Is required to obtain Insurance for the coIIaIaraIlI8CtJl'hg thIe Note. Further Inforn18tJon cOf\Ceming this requirement Is set forth In the Security Agreement and In the Agreement to Provide Insurance, aU the terms and conditions at which are hereby Iloorporaled and made a part of this Note. UNE OF CREDIT. this Nota evidenc:es a revolving line of credit. Advances under this Note may be requested orally by Borrower or by an authorized person. Lender may, but need not, require that all oral requests be confirmed In writing. All COI'M'UIIcatlons, In8truc1ions, or dlntcllons by telephone or otherwise to Lender are 10 be dlr&eled to Lender's otfIce shown above. The following party or parties are authorized to request advances under the line 01 credit 0011 Lender receives from Borrower al Leoder"s address shown above written notice 01 revocation 01 their authority: Sabutlan O. Trlacarl and Thomaa A. Spack. Borrowet agrees to be liable for all sums either: (a) advanced In acoordance with the instructions 01 an authorized person or (b) credited to any 01 Borrower's accounts with l.endel. The unpaIcI prhclpal balance owing on this Nole et any time may be evlclenced by endorsements on this Nota or by Lender"s Internal records, IncIudlng dally computer prInI-outs. Lender will have no obligation to &dvance funds under this Note /I: (a) Borrower or any guarantor Is In default undElf the terms 01 this Note or any agreement that Borrower or any guarantor has with Lender, including any agreement macI& In comectlon with the signing ot this Note; (b) Borrower or any guarantor C&ase8 doing business or Is Insolvent; (c) any guarantor seeks, c1alm8 Of' otherwise atlempla 10 IlmII, modIty or revoke such guaranlor"s guarantee ot this Note or any other loan with Lender; (d) Borrower has applied lunds provided pursuant to this NoIe lor purposes other than those authorized by Lender; or (e) Lender In good faith deems Itselllnsecure under this Note or any other agreement between Lender and Borrower. ANNUAL PAYOUT PERIOD. Borrower ,hall be required to reduce the outstanding prlnclpall:Nllance under" this line ot Credit to zero for a thirty (30) coosecutive day period during each year 01 the Lne of Credit. I 05-04-2000 LOBn No 2862095 PROMISSORY NOTE (Continued) Page 2 GENERAL PROVISIONS. Thi$ Note III payable on demand. The Inclusion 01 specific del8~ provIalons or r\glts of Lender shall not pl'sclude Lender's right to declare payment 01 this Note on Ita demand. Lender may delay or forgo enforcing any of Its rights 0( remedies under this Note wilhOullo&lng them. 8OI'rower and any other person who signs, guarantees or andor88S this Note, to 1he extent allowed by law, waive preseotmenl, demand for payment, prote8t and notice of di&honor. Upon any change In the terms of this Note, and unI888 otheIwlse expressly stated in writing, no party who signs Ihia Note, whether as maker, gu&nlf1tor, accommodation maker or endorser, shall be releesed from IIabDlty. All such parties agree !hat Lender may renew ()( 8lllend (repeatedly and for any length of tme) this Io&n, or release any party, partner, or guarantor (l( oollBtelal; or impair, lall to realize upon or perlect Lender's security interest WI the c:oIIateral; and take sny other action d&emed necessary by Lender without the oon&enl of 0( notice to anyone. All auch parties 8180 agree thai L.ender mey modify IhIa Ioen withcMJt the consent of or notice to anyone other than the party with whom the modification Is made. II any portion ollhis Nota 18 for 8l'rf reesoo determined to be ooenforceable, It will not affect Ihe enfofceabYIly of any other provisions 01 IhIs Note. CONFESSION OF JUDGMENT. BORROWER HEREBY IRREVOCABLY AUTHORIZES AND EMPOWERS ANY ATTORNEY OR n-IE PROTHONOTARY OR CLERK OF ANY COURT IN THE COMMONWEALTH OF PENNSYLVANIA, OR ELSEWHERE, TO APPEAR AT ANY TIME FOR BORROWER AFTER A DEFAULT UNDER THIS NOTE, AND WITH OR WITHOUT COMPLAINT FILED, AS OF ANY TERM, CONFESS OR ENTER JUDGMENT AGAINST BORROWER FOR THE ENTIRE PRINCIPAl BAlANCE OF THIS NOTE, AlL ACCRUED INTEREST, LATE CHARGES, AND ANY AND AlL AMOUNTS EXPENDED OR ADVANCED BY LENDER RELATING TO ANY COUATERAl SECURING THIS NOTE TOGETHER WITH INTEREST ON SUCH AMOUNTS, TOGETHER WITH COSTS OF SUIT, AND AN ATTORNEY'S COMMISS!ON OF TEN PERCENT (10%) OF THE UNPAID PRINCIPAl BALANCE AND ACCRUED INTEREST FOR COllECTION, BUT IN ANY EVENT NOT LESS THAN FIVE HUNDRED DOUARS ($500) ON WHICH JUDGMENT OR JUDGMENTS ONE OR MORE EXECUTIONS MAY ISSUE IMMEDIATELY; AND FOR SO DOING, THIS NOTE OR A COPY OF THIS NOTE VERIFIED BY AFFIDAVIT SHAlL BE SUFFICIENT WARRANT. THE AUTHORITY GRANTED IN THIS NOTE TO CONFESS JUDGMENT AGAINST BORROWER SHAll NOT BE EXHAUSTED BY ANY EXERCISE OF THAT AUTHORITY, BUT SHAt). CONTINUE FROM TIME TO TIME AND AT AlL TIMES UNTIL PAYMENT IN FULL OF AlL AMOUNTS DUE UNDER THIS NOTE. BORROWER HEREBY WAIVES ANY RIGHT BORROWER MAY HAVE TO NOllCE OR TO A.HEARING IN CONNECTION WITH ANY SUCH CONFESSI~ OF JUDGMENT, EXCEPT ANY NOTICE AND/OR HEARING REQUIRED UNDER "PUCABlE LAW WITH RESPECT TO EXECUTION OF tHE JUDGMENT, AND STATES THAT EITHER A REPRESENTATIVE OF LENDER SPECIACAlLY CAlLED THIS CONFESSION OF JUDGMENT PROVISION TO BORROWER'S ATTENTION OR BORROWER HAS BEEN REPRESENTED BY INDEPENDENT LEGAl COUNSEl. PRIOR TO StGNING 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 AND ACKNOWLEDGES RECEIPT OF A COMPLETED COPY OF THE NOTE. THIS NOTE HAS BEEN SIGNED AND SEALED BY THE UNDERSIGNED. '''''''''''~~..~~ (SEAL) B ~~L"""'0'(. ) y: . " , , , n'" ',"','l:';X';X'.'~~ EAL ThomI. A. peck, G . :Igned,~.nd:~of: Witness e:- X Wltneu Variable Rate, linec/Credlt LASER PRO, Reg. U.S. Pili. & T.M. 011., Ver. 3,2& (~)2OOIlCFl PraServlcal, h:. All ~ghIa _1td.lPA-020E3.2705TR1OO.LNC20.0YL] COMMERCIAL SECURITY AGREEMENT Borrower: Trlocarl Video Servlces (TIN: 251853479) 5S-B Central Blvd Camp Hili, PA 17011 lender: Commerce B.nkIH.rrlaburg, N.tlon.1 Association Main OlllcelCommerclal Cost Canlllr P.O. Box 8599 100 Senate Avenue C.mp Hili, PA 17001-8599 THIS COMMERCIAL SECURITY AGREEMENT Is entered Into between Trlscarl Video Services (referred to below as 'Grantor'): .nd Commerce BanklHarrt.burg, Natlon.1 Aaaoclatlon (referred to below as .Lender'). For valu.ble con.ld....tlon. Gr.ntor granla to Lender . security In_ In the Colleteral to secure the Indebtedn... .nd .g.... th.t Lender .h.1I h.ve the rlghla .taled In thl. Agreement wIlh respect to the Collateral, In addition to .11 other rlghla which Lender may h.ve by I.w. DEFlNmONS. The following words shall have the following meanings when used in this Agreement Tenns not otherwise defined in this Agreement shall have the meanings .ttributed to such tenns in the Uniform Commercial Code. All references to dollar amounts shall mean amounts in I.wful money of the United States of America, Agreement The word "Agreement' means this Commercial Security Agreement, as this Commercial Security Agreement may be amended or modified from time to time, together with all exhibits and schedules attached to this Commercial Security Agreement from time to time. Collateral. The word 'Collateral' means the following described property of Grantor, whether now owned or hereafter acquired, whether now existing or hereafter arising, and wherever located: All Inventory, chattel plI,*, accounla, equipment, gen....llnlanglbl.. .nd fixtures In addition, the word "Collateral" includ.. all the following, whether now owned or hereafter acquired, whether now existing or hereafter arising, and wherever located: (a) All attachments, accessions, accessories, tools, parts, suppllas, Increases, and additions to and all replacements of and substitutions for any proparty described above. (b) All products and produce of any of the property described in this CoIlataral section. ee) AU accounts, general intangibles, instruments, rents, monies, payments, and all other rights, arising out of a sale, leass, or other disposition of any of the property dascribed In this Collateral section, (d) All proceeds (Including insurance proceeds) from the sale, destruction, loss, or other disposition of any of the proparty described in this Collateral section. (e) All records and data relating to any of the proparty described in this Collateral section, whether in the form of a writing, photograph, microfdm, microfiche, or electronic media, togethar with all of Granto(s right, title, and interast in and to all computer software required to utilize, create, malntsin, and procass any such records or data on electronic media. Event of Detaull, The words "Event of Defaulr mean and include without limitation any of the Events of Default set forth below In the section titled "Events of Defau~.' Grantor. The word -Grantor- means Trisesri Video Services, its successors and assigns. Guarantor. The word 'Guarantor" means and includes without limitation each and ali of the guarantors, sureties, and accommodation parties in connection with the Indebtednass. Indebtedn.... The word "Indebtednass' means the indebtedness evidenced by the Note, Including all principal and interest, together with all other indebtedness and costs and expenses for which Grantor is responsible under this Agreement or under any of the Related Documents. In addition, the word "Indebtedness" Includes all other obligations. debts and lieblllties, plus interest thereon, of Grantor, or anyone or more of them, to Lender, as well as all claims by Lender against Grantor, or anyone or more of them, whether existing now or later; whether they are voluntary or involuntary, due or not due, direct or Indirect, absolute or contingent, liquidated or unliquidated; whether Grantor may be liable Individually or joinUy with others; whether Grantor may be obligated as guarantor, surety, accommodation party or otherwise; whether recovery upon such Indebtedness may be or hereafter may become barred by any statute of limitations; and whether such indebtedness may be or hereafter may become otherwise unenforceable. Lender. The word -Lender" means Commerce BanklHarrlsburg, National Association, its successors and assigns. Note. The word 'Note" means the note or cred~ agreement dated May 4, 2000. In the principal amovnt of $10,000,00 from Triscari Video Services to Lender, together with all renewals of, extensions of, modifications of, refinancings of, consolidations of and substitutions for the note or credit agreement. Related Documents. The words -Related Documents- mean and include without limitation all promiSSOry notes, credit agreements, loan agreements, environmental agreements, guaranties, security agreements, mortgages, deeds of trust, and all other instruments, agreements and documents, whether now or hereafter existing, executed in connection with the Indebtedness. RIGHT OF SETOFF. Grantor hereby grants Lender a contractual security interest in and hereby assigns, conveys, delivers, pledges, and transfers all of Granto(s rlgh~ title and interast in and to Granto(s accounts with Lander (whether checking, savings, or some other account), InCluding all accounts held Jointly with someone else and all accounts Grantor may open In the future, excluding, however, all IRA and Keogh accounts, and all trust accounts for which the grant of a security Interast would be prohibited by law. Grantor authorizes Lender, to the extent parmilted by applicable law, to charge or setoff alllndebledness against any and all such accounts. OBUGATlONS OF GRANTOR. Grantor warrants and covenants to Lender as follows: Perfection of Security In_I, Grantor agrees to execute such financing statements and to take whatever other actions are requested by Lender to parlect and continue Lende(s security Interast In the Collateral. Upon request of Lender, Grantor will deliver to Lender any and all of the documents evidencing or constituting the Collateral, and Grantor will n~ Lender's interest upon any and all chattel paper if not delivered to Lender for possession by Lender. Grantor hereby appoints Lender as its irrevocable attorney-in-fact for the purpose of executing any documents necessary to perfect or to continue the security interest granted in this Agreement. Lender may at any time, and without further authorization from Grantor, file a carbon, photographic or other reproduction of any financing statement or of this Agreement for use as a 05-04-2000 Loan No 2862095 COMMERCIAL SECURITY AGREEMENT (Continued) Page 2 financing statem.nt Grantor will reimburse Lend.r for all .xpenses for the perlection .nd the continuation of the perlection of Lende~s security int.rest in the Collateral. Grantor promptly will notify Lender before any chang. in Granto~s name including any. change to the assumed business names of Grantor, Thla 10 a continuing Security Agreement and will conlinue In effect avan though all or any part of the Indebtedn... 10 paid In full and avan though for a period of time Grantor may not be Indebted to Lender. No Violation. Th. .xecution and deliv.ry of this Agreement will not violat. any law or agreement gov.ming Grantor or to which Grantor is a perty, and its pertn.rshlp agreem.nt does not prohlbll any t.rm or condition of this Agreem.nt. Enforceability of Collateral. To the .xt.nt the CoIlat.ral consists of accounts, chattel paper, or general Intangibles, the CoIlat.ral Is .nforceabl. in accordance with its terms, is genuine, and complies with applicable laws concerning form, content and manner of preparation and execution, and all p.rsons appearing to be obligated on the Collateral have authority and capacity to contract and are In fact obligated as they appear to be on the Collateral. At the time any account becomes subject to a security interest in favor of Lender, the account shall be a good and valid account r.pr.s.nting an undisputed, bona fld. ind.btedn.ss Incurred by the account debtor, for m.rchandls. h.ld subject to d.liv.ry instructions or th.r.tofor. shipped or dellv.red pursuant to a contract of sal., or for s.rvices th.retofor. performed by Grantor with or for the account debtor, there shall be no setoffs or counterclaims against any such account; and no agreement under which any deductions or discounts may be cl.lmed shall have been mad. with the account d.btor .xc.pt those disclosed to L.nd.r in writing, Location of the Collateral. Grantor, upon request of Lend.r, will d.liv.r to Lend.r in form satisfactory to L.nd.r a schedul. of r.aI properties and Collat.rallocations relating to Grantor's operations, Including without limitation the following: (a) all r.al property owned or being purchased by Grantor; (b) all real property being r.nted or I...ed by Grantor; (c) all storage facilities owned, r.nted, I...ed, or being used by Grantor; and (d) all oth.r properti.s wh.r. Collateral Is or may be located. Exc.pt in the ordinary cours. of its business, Grantor shall not r.mov. the Collateral from its existing locations without the prior written consent of Lender. Removal of Collateral. Grantor shall k..p the Collat.ral (or to the .xtent the Collateral consists of intanglbl. property such as accounts, the records concerning the Collateral) at Grantor's address shown above, or at such other locations as are acceptable to Lender. Except in the ordinary course of its business, including the sales of inventory, Grantor shall not removB the Collateral from its existing locations without the prior wrltt.n consent of Lend.r. To the .xt.nt thet the Collateral consists of v.hlcl.s, or oth.r titled property, Grantor shall not take or permll any action which would require application for c.rtificates of till. for the v.hicles outside the Commonwealth of P.nnsylvania, without the prior written consent of Lend.r. . Transactions Involving Collateral. Except for inventory sold or accounts collected in the ordinary course of Grantor's business, Grantor shall not sell, off.r to sell, or oth.rwls. transf.r or dlspos. of the Coliateral. Whll. Grantor is not In defautt und.r this Agreement, Grantor may sell inventory, but only in the ordinary course of Its business and only to buyers who qualify as a buyer In the ordinary course of business. A sale in the ordinary cours. of Granto~s business does not Include a transfer In partial or total satisfection of a d.bt or any bulk sal., Grantor shall not p1edg., mortgege, .ncumber or otherwise permll the Collat.ral to be subject to any lien, security int.rest, .ncumbranc., or charg., other than the security inter.st provided for In this Agreement, without the prior written cons.nt of Lend.r. This includes security int.rests .v.n II junior in right to the security Int.rests granted und.r this Agreem.nt Unless waived by Lend.r, all proceeds from any disposition of the CoIlat.ral (for whatev.r reason) shall be held in trust for Lend.r and shall not be commingled with any oth.r funds; provided howev.r, this requirement shall not constitut. cons.nt by L.nd.r to any sal. or oth.r disposition, Upon receipt, Grantor shall immediat.1y deliv.r any such proceeds to L.nd.r. Title. Grantor r.pres.nts and warrants to Lend.r that II holds good and marketabl. tItI. to the CoIlat.ral, free and ci.ar of all Ii.ns and .ncumbrances .xc.pt for the lien of this Agreem.nt, No financing statement cov.ring any of the Collateral Is on fil. in any public offic. other then those which r.flect the security interest created by this Agreement or to which Lend.r has speclllcally cons.nted. Grantor shall def.nd Lend.~s rights in the Collateral ageinst the claims and d.mands of all oth.r persons, Collllleral Schedules and Locatlona. As oft.n as Lender shall requlr., and insofar as the Collat.ral consists of accounts and g.n.ral Intangibles, Grantor shall deliv.r to Lend.r scheduies of such CoIlat.ral, including such Information as Lend.r may requlr., including without limitation names and addresses of account debtors and' agings of accounts and genaral intangibles. Insofar as the Collateral consists of Inv.ntory and equlpmen~ Grantor shall deliv.r to Lend.r, as often as Lend.r shall requlra, such lists, d.scriptions, and designations of such Collateral as Lender may require to id.ntlfy the natur., .xtent, and location of such Collateral. Such information shall be submitted for Grantor and each of its subsldiarles or related companies. Maintenance and Inspeclion of Collllleral. Grantor shall mainteln all tangibl. CoUateral In good condKion and r.pelr. Grantor will not commll or penoll damage to or d.structlon of the CoIlat.ral or any part of the CoIlat.raI. Lend.r and its d.signated r.presentativ.s and agents shall have the right at all r...onabl. times to .xamln., inspect, and audll the Collat.ral wher.v.r located, Grantor shall immediately notify Lender of all cases involving the retum, rejection, repossession, loss or damage of or to any CoIlat.raI; of any request for cradll or adjustment or of any oth.r dispute arising with respect to the Collateral; and gen.rally of all happenings and .vents affecting the CoIlat.ral or the value or the amount of the Collat.raI. Taxes, Au...menta and llena. Grantor will pey when due all taxes, assessments and Ii.ns upon the CoIlat.raI, its us. or operation, upon this Agreement upon any promissory note or notes .vldencing the Indebteclness, or upon any of the other Related Documents. Grantor may withhold any such peyment or may .Iect to contest any lien II Grantor ts In good faith conducting an appropriate proceeding to contest the obllgetion to pey and so long as Lend.~s interest in the Collateral is not jeopardized In L.nde~s sol. opinion. If the Collateral Is subjected to a lien which is not discharged within fifteen (15) deys, Grantor shall deposll with Lend.r cesh, a sufficient corporate surety bond or other security satisfactory to Lend.r in an amount adequate to provld. for the discharg. of the U.n plus any Interest, costs, attom.ys' fees or oth.r charges thet could accru. as a result of foreclosur. or saI. of the Collateral. In any contest Grantor shall d.fend its.lf and Lend.r and shall satisfy any final adversa judgment before enforcement agelnst the Collat.raI, Grantor shall name Lend.r as an addllional obligee under any surety bond fumlshed in the contest proceedings. Compliance WIth Governmental Requirements. Grantor shall comply promptly with all laws, ordinances, rul.s and regulations of all gov.mmental authorities, now or h.reafter in effect, appIlcab1. to the ownership, production, disposition, or us. of the Collateral. Grantor mey contest In good faith any such law, ordinanc. or regulation and withhold compliance during any proceeding, including _ropriate appeals, so long as Lend.rs Int.restln the Collateral, In Lend.rs opinion, is not Jeopardized. Hazardoua Substan.... Grantor r.pres.nts and warrants thetthe Collateral nev.r has been, and never wUI be so long as this Agreernent remains a lien on the Collateral, used for the gen.ration, manufactura, storage, transportation, treatment, disposal, rei.... or threa_ reIeas. of any hazardous waste or substance, as those terms ara defined in the Comprehensiv. Envlronmenfal Respons., Compensation, and LIabIlity Act of 1980, as amended, 42 U.S.C. SecIlon 9601, et seq. rCERCLA'), the Superlund Amendments and Reauthorization Act of 1986, Pub. L No. 99-499 rSARA"), the Hazardous Materials Transportation Act, 49 U.S.C. Section t801, et seq., the R8SOUIC. Conservation and Recov.ry Act, 42 U.S.C. SecIlon 6901, et seq., or other appIicabI. state or Federa/laws, rules, or regulations adopted pursuant to any of the foregoing. Th. terms "hazardous waste' and "hazardous substance" shall elso include, without limitation, petroI.um and petroleum by-products or any fraction thereof _ and asbestos.,. Th. representations and warranties containeq herein. are based on Grantor's due diligence In InyestigetiJ;1g the Collateral for hazardous wastes and substances. Grantor hereby (a) rei..... and waives any future claims against Lend.r for indemnity or contribution In the event Grantor becomes liabI. for cleanup or other costs und.r any such laws, and (b) agrees to Indemnify and hold harmless Lender ageinst 05-04-2000 Loan No' 2862095 COMMERCIAL,. SE~URITY AGREEMENT (Continued) Page 3 any and all claims and losses resulting from a breach of this provisien of this Agreement This obligation to ind8fMify shall survive the payment of the Indebtedness and the satisfaction of this Agreement Maintenance 01 Casually Inaurance. Grantor shall procure and meintain all risks Insurance, inclUding without limitation fire, theft and liability coverage together with such other insurance .. Lender may requlra with respect to the Collateral, In fonn, amounts, coverages and basis reasonably acceptable to Lender end issued by e company or companies reescnebly acceplable to Lender. Grantor, upon request of Lender, will deliver to Lender from time to time the poIicias or certificetes of insurance in fonn satisfactory to Lender, including stipulations that coverages will not be cancalled or diminished without atleest thirty (30) days' prior written notice to Lender and not including any dlsclalmer of the Insurer's liability for fallura to give such a notice. Each insurance policy also shall include an endorsement providing that coverage In favor of Lender will not be Impaired in any way by any act, omissicn or default of Grantor or any other persen. In connection with all policies covering ..sets in which Lender holds or is offered a security interest, Grantor will provide Lender with such loss peyable or other endorsements .. Lender may requira. If Grantor at any time faits to obtain or maintain any insurance.. required under this Agreement, Lender may (but shall not be obligated .. to) obtain such insurance as Lender deems appropriate, including It it so chooses 'single interest insurance,' which will cover oniy Lender's Interest in tha Collateral. AppllC8Uon 01 Insurance Proceeds. Grantor shall promptly notify Lender of any loss or damage to the Collateral. Lender may make proof of loss It Grantor fails to do so within fifteen (15) days of the casuelly, All proceeds of any insurance en the Collateral, including accrued proceeds thereon, shell be held by Lender as part of the Colleteral. If Lender consents to rapair or replacement of the damaged or destroyed CoIlataral, Lender shall, upon satisfactory proof of expendi1ure, payor reimburse Grantor from the proceeds for the reescneble cost of repair or restoration, If Lender does not censent to repair or replacement of the Collateral, Lender shall retain e sufficient amount of the proceeds to pay all of the Indebtedness, and shall pay the balance to Grantor. Nrt proceeds which have not been disbursed within six (6) months aftar their receipt end which Grantor has not corrvnitted to the repair or restoration of the Collateral shell be used to prepay the Indebtedness. _ Insurance Reserves. Lender may require Grantor to maintain with Lender resolVes for payment of insurance premiums, which reserves shall be created by monthly payments from Grantor of a sum estimated by Lendar to be sufficient to produce, at leest fifteen (15) days before the premium due date, amounts atleest equal to the insurance premiums to be paid. If fifteen (15) days before payment Is due, the reserve funds are insufficient Grantor shall upon demand pay any deficiency to Lender. The reserve funds shall be held by Lender.. a ganeral depostt and shall constitute a non-Interest-bearing account which Lender may satisfy by payment of the insurance premiums required to be paid by Grantor as they become due. Lender does not hold the reserve funds in trust for Grantor, and Lender is not the agent of Grantor for payment of the Insurance premiums required to be paid by Grantor, The responsibility for the payment of premiums shall remain Grantor's sole responsibility, Insurance Reports. Grantor, upon request of Lender, shall fumish to Lender reports en each existing policy of Insurance showing such intormalion as Lender may reasonably request including the following: (a) the name of tha insurer; (b) the risks insured; (c) the amount of the policy; (d) the proparty insured; (e) the then current value on the basis of which insurance has been obtained and the manner of detenninlng that vaiue; and (I) the expiraticn date of the policy. In addition, Grantor shall upon request by Lender (however not more often than annually) have an independent appraiser satisfactory to Lender detennine, as applicable, the cash value or replacement cost of the Collateral, GRANTOR'S RIGHT TO POSSESSION AND TO COLLECT ACCOUNTS. Until default and except as otherwise provided below with respect to accounts. Grantor may have possession of the tangible personal property and beneficial use of all the Collateral and may use it in any lawful manner not inconsistent with this Agreement or the Related Documents, provided that Grantor's right to possession and beneficial use shall not apply to any Collateral where possessien of the Collateral by Lender is required by law to perfect Lender's security interest in such Collateral. Until otherwise notified by Lender, Grantor may collect any of the Collateral censisting of accounts. At any time and even though no Event of Default exists, Lender may exercise lis rights to collect the accounts and to notify account debtors to make payments directly to Lender for application to the Indebtedness, If Lender at any time has possession of any Collateral, whether before or after an Event of Default, Lender shall be deemed to have exercised reasonable care in the custody and preservation of the Collateral It Lender lakes such aclion for that purpose as Grantor shall request or as Lender, in Lender's sole discretion, shall deem appropriate under the circumstances, but failure to honor any request by Grantor shall not of itself be deemed to be a failure to exercise reasonable care. Lender shall not be required to take any steps necessary to preserve any rights in the Collateral against prior parties, nor to protect, preserve or maintain any security interest given to secure the Indebtedness. EXPENDITURES BY LENDER. It not discharged or paid when due, Lender may (but shell not be obligated to) discharge or pey any amounts required to be discharged or paid by Grantor under this Agreemen~ including without limitation all taxes, liens, security Interests, encumbrances, and other claims, at any time levied or placed on the Collateral. Lender also may (but shall not be obligated to) pey all costs for insuring, maintaining and presarving the Collateral. All such expendttures incurred or paid by Lender for such purposes will then bear Interest at the rate charged under the Note from the date incurred or paid by Lender to the date of repayment by Grantor. All such expanses shall become a perl of the Indebtedness and, at Lender's option, will (a) be payable en demand, (b) be added to the balance of the Note and be apportioned among and be payable with any installment payments to become due during either (i) the tenn of any applicable insurance policy or (IQ the remaining tenn of the Note, or (c) be treated as a balloon payment which will be due and payable at the Note's maturity, This Agreement also will secure peyment of these amounts, Such right shall be in addition to all other rights and remedies to which Lender may be entitled upon the occurrence of an Event of Default. EVENTS OF DEFAULT. Each of the following shall censtitule an Event of Defauit under this Agreement: Delault on Indebtedness. Failure of Grantor to make any peyment when due on the Indebtedness. Other Defaults. Failure of Grantor 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 in any other agreement between Lender and Grantor. Default In Favor of Third Parties. Should Borrower or any Grantor default 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 or any Grantor's ability to repay the Loans or perform their respective obligations under this Agreement or any of the Related Documents. False Statements. Any warranty, representation or statement made or furnished to Lender by or on behalf of Grantor under this Agreement, the Note or the Related Documents is false or misleading in any material respect, either now or at the time made or furnished. Defective Collaterallzatlon. This Agreement or any of the Related Documents c..ses to be in full force and effect (Including failure of any collateral documents to create a valid and perfected security interest or lien) at any time and for any reason. Death or Insolvency. The dissolution or termination of Grantor's existence as a going business or the death of any partner, the insolvency of Grantor, the appointment of a receiver for any part of Grantor's property, any assignment for the beneftt of creditors, any type of creditor workout, or the commencement of any proceeding under any bankruptcy or insolvency laws by or against Grantor. Creditor or Forfeiture Proceedings. Commencement of foreciosure or forfeiture proceedings, whether by judiCial proceeding, self-help, repassessien or any other method, by any creditor of Grantor or by any govemmental agency against the Collateral or any other collateral securing the Indebtedness. This includes a garnishment of any of Grantor's deposit accounts with Lender. However, this Event of Default shall not apply if there is a good faith dispute by Grantor as to the validity or reasonableness of the claim which is the basis of the creditor or forfeiture proceeding and if Grantor gives Lender written notice of the creditor or forfeiture proceeding and deposits with Lender monies or a surety bond 05-04-2000 Loan No 2862095 COMMERCIAL SECURITY AGREEMENT (Continued) Page 4 tor the creditor or forfenure proceeding, in an erneunt determined by Lender, in its sole discretion, es being an adequate reserve or bond tor the dispute. Events Affecting Guarantor. Any of the preceding events occurs with respect to any Guarantor of any of the Indebtedness or such Guarantor dies or becomes incompetent. Lender, at its option, may, but shall not be required to, permn the Guaranto(s estate to assume unconditionally the obligations arising under the guaranty In a manner satisfactory to Lender, and, in doing so, cure the Event of Default Adverse Change. A material adverse change occurs in Granto(s financial condition, or Lender believes the prospect of peyment or performance of the Indebtedness is impaired. Insecurity. Lender, in good faith, deems itsen insecure. Right to Cure. If any defaun, other than a Delault on Indebtedness, is curable and n Grantor has not been given a prior notice of a breach of the same provision of this Agreement. n may be cured (and no Event of Default will have occurred) n Grantor, after Lender sends wrillen notice demanding cure of such default, <a) cures the delaun within ten (10) days; or (b), n the cure requires more than ten (10) days, immediately initiates steps which Lender deems in Lender's sole discretion to be sufficient to cure the default and thereafter continues and completes all reasonable and necessary steps sufficient to produce compliance as soon as reasonably practical. RIGHTS AND REMEDIES ON DEFAULT. If an Event of Defaun occurs under this Agreement, at any time thereefter, Lender shall have all the rights of a secured party under the Pennsylvania Uniform Commercial Code. In addition and without limitation, Lender may exercise anyone or more of the following rights and remedies: Accelerate Indebtedn.... Lender may declare the entire Indebtedness, including any prepayment penalty which Grantor would be required to pay, immediately due and payable, without notice. Assemble COllateral. Lender may require Grantor to deliver to Lender all or any portion of the Coliateral and any and all certificates of title and other documents relating to the Collateral. Lender may require Grantor to essemble the Collateral and make n aveilable to Lender at a place to be designated by Lender. Lender also shall have full power to enter upon the property of Grantor to take possession of and remove the Collateral. II the Collateral contains other goods not covered by this Agreement at the time of repossession, Grantor agrees Lender may take such other goods, provided thet Lender makes reasonable efforts to retum them to Grantor after repossession. Selllhe COllateral. Lender shall have full power to sell, lease, transfer, or otherwise deal with the Collateral or proceeds thereof in lis own name or that of Grantor. Lender may sell the Collateral at public auction or private sale. Unless the Collateral threatens to decline speedily in value or is of a type customarily sold on a recognized market, Lender will give Grantor reasonable nollee of the time after which any private sale or any other intended disposition of the Collateral is to be made. The requirements of reesonable nollee shall be met n such notice is given at leest ten (10) days before the time of the sale or disposition, All 'expenses relating to the disposition of the Collateral, Including without limitation the expenses of retaking, holding, insuring, preparing for sale and selling the Collateral, shall become a part of the Indebtedness secured by this Agreement and shall be payable on demand, with interest at the Note rate from date of expenditure until repaid. Appoint Receiver. To the extent permitted by applicable law, Lender shall have the following rights and remedies regarding the appointment of a receiver: (a) Lender may have a receiver appo;nted as a matter of right, (b) the receiver may be an employee of Lender and may serve without bond, and (c) all fees of the receiver and his or her attomey shall becoma part of the Indebtedness secured by this Agreement and shall be payable on demand, with interest at the Note rate from date of expendnure until repaid. COllect Revenues, Apply Accounts. Lender, either lisen or through a receiver, may collect the payments, rents, income, and revenues from the Coliateral. Lender may at any tima in its discretion transfer any Collateral into lis own name or thet of its nominee and receive the payments, rents, income, and revenues therefrom and hold the same as securfly tor the Indebtedness or apply n to peyment of the Indebtedness In such order of preference es Lender may determine. Insofar as the Collateral consists of accounts, general intangibles, Insurance policies, instruments, chattel paper, choses In action, or similar property, Lender mey demand, collect, receipt for, setUe, compromise, adjust, sue for, foreclose, or realize on the Collateral es Lender may determine, whether or not Indebtedness or Collateral Is then due. For these purposes, Lender may, on behalf of and in the name of Grantor, receive, open and dispose of mail addressed to Grantor; change any address to which mail and payments are to be sent; and endorse notes, checks, drafts, money orders, documents of title, instruments and items pertaining to payment, shipment, or storage of any Collateral. To facilitate collection, Lender may notify account debtors and obligors on any Collateral to make payments directly to Lender. Obtain DeIIclency. II Lender chooses to sell any or all of the Collateral, Lender may obtain a judgment against Grantor for any deficiency remaining on the Indebtedness due to Lender after application of all amounts received from the exercise of the rights provided in this Agreement. Grantor shall be liable for a deficiency even n the transaction described in this subsection is a sale of accounts or chattel paper. Other Rights and Remedies. Lender shall have all the rights and remedies of a secured creditor under the provisions of the Uniform Commercial Code, as may be amended from time to time. In addnion, Lender shall have and may exercise any or all other rights and remedies n may have available at law, in equity, or otherwise. Cumulative Remedies. All of Lende(s rights and remedies, whether evidenced by this Agreement or the Related Documents or by any other writing, shall be cumulative and may be exercised singularly or concurrentiy. Election by Lender to pursue any remedy shall not exclude pursun of any other remeqy, and an election to make expenditures or to take action to perform an obligation of Grantor under this Agreement, after Granto(s failure to perform, shall not affect Lende(s right to declare a default and to exercise its remedies. MISCELLANEOUS PROVISIONS. The following miscellaneous provisions are a pert of this Agreement Amendments. This Agreement, together with any Related Documents, constitutes the entire understanding and agreement of the parties es to the matters set forth In this Agreement. No alteration of or amendment to this Agreement shall be effective unless given in writing and signed by the party or parties sought to be charged or bound by the alteration or amendment. Applicable Law. This Agreement has been delivered to Lender and accepted by Lender in the Commonwealth of Pennsylvania. II there Is e lawsuit, Grantor agrees upon Lende(s request to submn to the Jurfsdlction of the courts of the Commonwealth of Pennsylvania. Lender end Grantor hereby waive the right to any jury trial In any action, proceeding, or counterclaim brought by either Lender or Grantor egainst the other. This Agreement shall be govemed by end construed In accordance with the laws of the Commonwealth of Pennsylvania. Attorneys' ....; Expenses. Grantor agrees to pay upon demand all of Lende(s costs end expenses, Including attorneys' fees end Lender's legal expenses, incurred In connection with the enforcement of this Agreement. Lender may pay someone else to halp enforce this Agreement, end Grantor shall pay the costs end expenses of such enforcement Costs and expenseo include Lende(s attorneys' fees .end legal expenses whether or not there Is a lawsuit, including ettomeys' fees end legal expenses for bankruptcy proceedings (end including efforts to modify or vacate any automatic stay or inJunction), eppeals, and any anticipated post-judgment collection services, Grantor also shall pay all court costs end such addltlpnal fees es may be directed by the court. . Captlon _Ings. Caption headings in this Agreement are for convenience purposes only and are not to be used to Interpret or detine the plOVisions of this Agreement. 05-04-2000 . . Loan No 2862095 COMMERCIAL SECURITY AGREEMENT . (Continued) Page 5 Multiple ""rUes. All obligations of Grantor under this Agreement shall be joint and several, and all references to Grantor shall mean each and every Grantor. This means that each of the persons signing below is responsible for all obligations in this Agreement. Neil.... All notices required to be given under this Agreement shall be given In writing, may be sent by telefacsimUe (unless oth9lWise required by law), and shall be effective when actually delivered or when deposited with a nationally recognized ovemlght courier or deposited in the United States mail, first class, postage prepeld, addressed to the perty to whom the notice is to be given at the address shown above. Any perty may change its address for notices under this Agreement by giving fonnel wrltlen notice to the other perties, specifying that the purpose of the notice Is to changelhe perty's address, To the extent pennilled by applicable law. n there Is morelhen one Grantor, notice to any Grantor wUI conslilule notice to all Grantors. For notice purposes, Grantor will keep Lender informed at all times of Granto(s current address(es). Power 01 Attorney. Grantor hereby appoints Lender as its true and lawful attomey-in-fact, irrevocably, with full power of substitulion to do the following: (a) to demand, collect, receive, receipt for, sue and recover all sums of money or other property which may now or hereafter become due, owing or peyable from the Collateral; (b) to execute, sign and endorse any and all claims, Instruments, receipts, checks, drafts or warrants Issued in peyment for the Collateral; (c) to seltie or compromise any and all claims arising under tha Collateral, and, in the place and stead of Grantor, to execute and deliver its release and seltiement for the claim; and (d) to file any claim or claims or to taka any action or inslilula or take part in any proceedings, either in its own name or in the name of Grantor, or otherwise, which in the discretion of Lander may seem to be necessary or advisable. This power Is given as security for the Indebtedness, and the authority hereby conferred is and shall be irrevocable and shall remain in full force and effect until renounced by Lender. Severability. II a court of competent jurisdiction finds any provision of this Agreement to be invalid or unenforceable as to any person or circumstance, such finding shall not render that provision invalid or unenforceable as to any other persons or circumstances. If feasible, any such ollending provision shall be deemed to be modnied to be within the i1mits of enforceability or validity; however, n the offending provision cannot be so modffied, it shall be stricken and all other provisions of this Agreement in all other respects shall remain valid and enforceable. Successor Interests. The tenns of this Agreement shall be binding upon Grantor, and upon Granto(s heirs, personal representatives, successors, and assigns, and shall be enforceable by Lender and its successors and assigns. Waiver. Lender shall not be deemed to have waived any rights under this Agreement unless such waiver is given in writing and signed by Lender. No delay or omission on the part of Lender in exercising any right shall operate as a waiver of such right or any other right A waiver by Lender of a provision of this Agreement shall not prejudice or conslilule a waiver of Lende(s right otherwise to demand strict compliance with that provision or any other provision of this Agreement. No prior waiver by Lender, nor any course of dealing between Lender and Grantor, shall conslilule a waiver of any of Lender's rights or of any of Granto(s obligations as to any Mure transactions. Whenever the consent of Lander Is required under this Agreement, the granting of such consent by Lender in any instance shall not conslilule continuing consent to subsequent instances where such consent is required and in all cases such consent may be granted or withheld in the sole discretion of Lender. GRANTOR ACKNOWLEOGES HAVING REAO ALL THE PROVISIONS OF THIS COMMERCIAL SECURITY AGREEMENT, ANO GRANTOR AGREES TO ITS reRMS. THIS AGREEMENT IS DAreD MAY 4, 2000. THIS AGREEMENT HAS BEEN SIGNED AND SEALED BY THE UNDERSIGNED. GRANTOR: Triscarl Video Servl .................................. ................................... ................................................... ..:.:.:.:.:.:.:.:.:.:.:.:.:.:.:.:.:.:.:.:.:.:.:.:.........,"i:.:;.;:;:;:::;:;:;:;:;:;:;:;:;:;:;: (SEAL) ~~ ................w...... .....................w. (SEAL) By: Sign X 01: X LENDER: By: Authorized Officer LASER PRO, Reg. U.s. Pat. & T.M. Off.. Vsr. 3.28c (c) 2000 CFI ProS . 88, Inc. All rights ressrved.IPA-E40 E3.27 F3.27 OSTAIOO.LN C20.0VLI EXHIBIT II B II "-,. "".. ... ...,'- PROMISSORY NOTE MODIFICATION AGREEMENT THIS PROMISSORY NOTE MODIFICATION AGREEMENT, made and entered into as of this day of July, 2001, by and between COMMERCE BANKI HARRISBURG, NATIONAL ASSOCIATION, a national banking association (hereinafter called "Bank"), having its principal place of business at 100 Senate Avenue, P. O. Box 8599, Camp Hill, Pennsylvania 17001-8599, and Triscari Video Services (hereinafter called "Borrower"). WITNESSETH: k "'( \' 15: WHEREAS, Borrower executed and delivered to Bank a Promissory Note") dated May 4, 2000, in the original amount of $10,000 , which evidences a loan by the Bank to the Borrower; and ""' v \ WHEREAS, the Bank and Borrower mutually agree to modify the terms of the Note to change the Maturity Date, as hereinafter provided. NOW THEREFORE, for value received and in consideration of the mutual covenants and agreements hereinafter contained and intending to be legally bound hereby, Bank and Borrower covenant and agree to amend and modify the Note heretofore described as follows: 1. The Note and all Loan Documents related thereto shall be amended to provide that effective July 31, 2001, the Note will be extended to August 30, 2001. 2. Except to the extent specifically set forth herein, all of the terms, conditions, covenants and agreements contained in the Note shall remain in full force and effect. Borrower hereby ratifies and affirms each and every term and condition, obligation, and covenant of Borrower under the Note in every respect and shall pay and discharge the indebtedness evidenced by the Note in accordance with its terms as modified herein. This Modification shall not altar, diminish, or otherwise affect the lien on the business assets or the collateral therein described. IN WITNESS WHEREOF, the parties hereto have executed this Agreement the day and year first above written. 1 . . ATTES COMMERCE BANK/HARRISBURG, N. A. BY: tIt/J.IAIllnafi Colleen R. singer,Vice President (Vice j/t/<<, 'YfIy Witness Borrower: Triscari Video Services ~uM't,~ Witness 2 EXHIBIT "e" EXHIBIT "C" 1. CAMERA & JVC: Camera & JVC GY-DV500 Mini DV & Hard Case (new) JVC AA-P41AU AC Power Adapter (new) Davis & Sanford Rolling Tripod 10 Panasonic Mini DV Tapes (new) 1 Panasonic Head Cleaning Tape Batteries (6) Charging Station JVC TM41AU Mini Color Field Monitor 2. Non-Linear/Digital Editing: Matrox RT 2000 system AVID system (Full description of these items are attached hereto) 3. VIDEO Monitor: Two 13" Panasonic Color Monitors 4. Duplicating: Sony VCDS 1 000 Hi-8 Deck Sharp 4 Head HIFI VCR 5. Panasonic NY 8050 Time Lapse VCR 6. Canare Patchbay 7. 500 MHZ AMD System 8. 400 MHZ AMD System 9. LIGHTING: Frezzi Mini Light with Sony BC 130W Battery Charger and Sony No- 4000 Rechargeable Battery Pack; EXHIBIT "0" ...;;' ,'X'_.>'~~.- " ASSIGNMENT AGREEMENT THIS ASSIGNMENT AGREEMENT, made this -31J day of November, 2001, by and between COMMERCE BANKIHARRISBURG, N.A., a National Banking Association (hereinafter called "Bank"), and SEBASTIAN G. TRlSCARI ("Assignee"), WITNESSETH: WHEREAS, Triscari Video Services, a Pennsylvania General Partnership, entered into a Loan Agreement, Promissory Note, Security Agreement and Guarantees (Sebastian G. Triscari and Thomas A. Speck, Guarantors); and WHEREAS, the loan has gone into default such that there is a current outstanding balance of$IO,062.50 in principal, $195.72 in interest, $964.62 in late fees and $500.00 in legal fees, for a total amount of $11,722.84; and WHEREAS, Assignee desires to purchase the loan obligation from Bank and have all right, title and interest in said loan assigned to Assignee in consideration for the $11,722.84. NOW THEREFORE, in consideration of the premises above which are herein incorporated by reference and the payment of$II,722.84, it is hereby agreed as follows: 1. Bank hereby assigns to Assignee all right, title and interest in the said Promissory Note, Security Agreements and other loan documents as set forth above including all Guarantees to Assignee. 2. The Bank hereby releases Assignee from any and all liabilities or other responsibilities under the above-described loan. . 3. Assignee hereby releases Bank from any and all liabilities under the loan documents or any other causes of action that Assignee may have against the Bank as it relates to the loan transactions described herein. 4. Assignee hereby agrees to indemnify and hold Bank hannless from any and all claims, liabilities, causes of actions of any nature whatsoever, including reasonable attorney's fees, as it may relate to the loan transaction or to any collection process which Assignee may have or result from as a result of Assignee attempting to collect or otherwise enforce the loan documents against the co-guarantor, Thomas A. Speck. 5. This Agreement shall be construed under the laws of the Commonwealth of Pennsylvania. 6. This Agreement shall be binding on the heirs, executor and assigns of all parties hereto. 7. This Agreement shall constitute the entire agreement between the parties, all prior agreements being incorporated herein, and shall not be modified unless in writing signed by both parties. IN WITNESS WHEREOF, the parties have set their hands and seals the day first above written. COMMERCE BANKIHARRISBURG, N.A. By !j~P .---' Barbara Sumple-Sullivan. Esquire Supreme Court #32317 549 Bridge Street New Cumberland, P A 17070 (717)774-1445 THOMAS A. SPECK, Plaintiff IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA v. CIVIL ACTION : LAW AND EQUITY : NO. 2001-7086 SEBASTIAN G. Z. TRISCARI, Defendant v. KENNETH R. STEPHAN, Additional Defendant VERlFICA TION I, SEBASTIAN G.Z. TRlSCARI, hereby certify that the facts set forth in the foregoing Petition of Defendant, Sebastian G.Z. Triscari for Possession of Personalty in Accordance With Security Agreement Assignment are true and correct to the best of my knowledge, information and belief. I understand that any false statements made herein are subject to penalties of 18 Pa. C.S.A. ~4904 relating to unsworn falsification to authorities. DATED: p~..:L ~~3~ SEBASTIAN G.Z. TRlst'ARI Barbara Sumple-Sullivan, Esquire Supreme Court #32317 549 Bridge Street New Cumberland, P A 17070 (717) 774-1445 : IN THE COURT OF COMMON PLEAS : CUMBERLAND COUNTY, PENNSYLVANIA THOMAS A. SPECK, Plaintiff v. : CIVIL ACTION : LAW AND EQUITY SEBASTIAN G. Z. TRISCARI, Defendant : NO. 2001-7086 v. KENNETH R. STEPHAN, Additional Defendant CERTIFICATE OF SERVICE I, BARBARA SUMPLE-SULLIVAN, ESQUIRE, do hereby certify that on this date, I served a true and correct copy of Petition of Defendant, Sebastian G.Z. Triscari for Possession of Collateral in Accordance With Security Agreement Assignment, in the above- captioned matter upon the following individual(s), by United States, First Class Mail, addressed as follows: Donald R. Reavey, Esquire MAY & MAY, P.C. 3438 Trindle Road Camp Hill, PA 17011 Dr. Kenneth R. Stephan 110 Calton Drive Calton, South Carolina 29341 DATE: ~r ,2002 Barbara Sumple-Sullivan, Esquire 549 Bridge Street New Cumberland, PA 17070-1931 (717) 774-1445 Supreme Court I.D. 32317 Attorney for Defendant Triscari >- c: ~ .'- LLJ~? QFi l.l- _,,~ t5F~:: T (: [~~ i~ ~~:):-- .!J,..;'" F'. U... C~j lO <::) S~ '" 01 - o z [; <( " > J ~ .J Z :J ti ~ Ul ~ .J ~ W ~ >-<f) u .J ~ ii: a. LIJ Z ~ .., u Z o ~ c 11I ~ :J ~ D- o( (I) a:l ci ..I <( ~ z 0:: '" <( <( ~ III w 0:: m <( ::E III a :!: w z :i ~= ?: :~S~'S '-) ~": ~ ?~ en ('oJ C::. '-l. .", .,.:~:; ':."-- ~.- ~;:.)b~! C~J c:> r APR 2 6 200[): Barbara Sump Ie-Sullivan, Esquire Supreme Court #32317 549 Bridge Street New Cumberland, P A 17070 (717) 774-1445 THOMAS A. SPECK, Plaintiff IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA v. CIVIL ACTION : LAW AND EQUITY SEBASTIAN G. Z. TRISCARI, Defendant : NO. 2001-7086 v. KENNETH R. STEPHAN, Additional Defendant RULE AND NOW, this 1 d day of Mf ,2002, upon consideration of Defendant, Triscari's Petition for Possession of Collateral in Accordance with Security Agreement Assignment, A Rule is issued on Plaintiff, Thomas A. Speck, to show cause, if any, why the Court should not grant the relief requested. The Rule is returnable within ;u) days from the date of service hereof. BY THE COURT: J. ji-~.'._.~~:~~~/~, ~ ~/L. I~~ /2J~ 'lX. ~I ~, 6/~/():J.. -8, jJ, r , O? ~&n iJ. "... f", - ,:; r-,. .J I'd 2: 2LI '''0 ; CUA1~~,;t P~~':~r'';:./j,i COU~/!'II / _, 11 ~01 LV~;\/I/\ I 'Ii 1 1/ if 'i /1 THOMAS A. SPECK, Plaintiff : IN THE COURT OF coMMON PLEAS : CUMBERLAND COUNTY, PENNSYLVANIA v. : CIVIL ACTION . T ^ UT liNn HOT TlTY THOMAS A. SPECK : IN THE COURT OF COMMON PLEAS Plaintiff : CUMBERLAND COUNTY, PENNSYLVANIA v. : CIVIL ACTION : LAW AND EQUITY SEBASTIAN G.Z. TRISCARI "lOa/' Defendant : No. 2001-rEl6a v. KENNETH STEPHAN Additional Defendant : PRAECIPE TO WITHDRAW APPEARANCE FOR PLAINTIFF TO THE PROTHONOTARY: Please withdraw the appearance of Donald R. Reavey, Esquire and the firm of May and may, P.C, as counsel for the Plaintiff, Thomas A. Speck. ~/~ Donald R. Reavey, Esquire DATE: sl 0,101- CERTIFICATE OF SERVICE AND Now, this rr day of May, 2002, I, Mark K. Emery, esquire do hereby certify that f have served the foregoing Praecipe to Withdraw Appearance for Plaintiff by mailing a true and correct copy via United States first class mail, addressed as follows: Barbara Sumple-Sullivan, Esquire 549 Bridge Street New Cumberland, PA 17070-1931 LAW OFFICES OF MARK K. EMERY 0-/:?-;:::Z,-7~~/~ By: /.::'/ /. / /,/ ~_. . ....-Mark K. Emery " () c " -r..", l~;~.' rnrT:" z:::~ -;.rr 0)~." r:;CJ .,- '1>(-' Z.; ,...(1 )> c:': 3 , C-:J rv o -n .,~ ,.-'. J' -~ ',d:\ .....,-; "~ .-1 -"1" ._~\-J , -~'-i" I . ~-- -Y-l ;:}.c5 c5:-n ..-01 ~ :0 '-< -n ->,.. N N .-1 , t \ . . THOMAS A. SPECK Plaintiff : IN THE COURT OF COMMON PLEAS : CUMBERLAND COUNTY, PENNSYLVANIA : CIVIL ACTION : LAW AND EQUITY v. SEBASTIAN G.Z. TRISCARI Defendant : No. 2001-7.Qei. q.~ p.or SIA"pk-S...I/,~.., p"""'~41 v. KENNETH STEPHAN Additional Defendant : NOTICE TO DEFEND 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 serve, 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 OR CANNOT AFFORD ONE, GO TO OR TELEPHONE THE OFICE SET FORTH BELOW TO FIND OUT WHERE YOU CAN GET LEGAL HELP. Cumberland County Bar Association 2 Liberty Avenue Carlisle, PA 17013 717 -249-3166 ~ Plaintiff, IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA THOMAS A SPECK, v, CIVIL ACTION - LAW AND EQUITY SEBASTIAN G.Z. TRISCARI, Defendant NO, 01-7086 v. KENNETH STEPHAN Additional Defendant AMENDED COMPLAINT AND NOW comes the Plaintiff, by and through his attorney, Mark K. Emery, Esquire, and files this Amended Complaint, as follows: 1. Plaintiff, Thomas A Speck, is an adult individual residing at 4408 Carlisle Pike, Cumberland County, Camp Hill, Pennsylvania. 2. Defendant, Sebastian G,Z, Triscari, is an adult individual residing at 9 Southwatch Lane, Silver Springs, Cumberland County, Pennsylvania, with a business address of 59 Central Boulevard, Camp Hill, Cumberland County, Pennsylvania, 3, Plaintiff and Defendant were, at all times relevant to this Complaint, 50/50 partners in Tri- Video Services, which had an address for conducting business at 55-B Central Blvd" Camp Hill, Pennsylvania, (hereinafter referred to as the "Office Space"). 4. On January 1, 2000 a partnership agreement was entered into between the Plaintiff and the Defendant for the purpose of establishing Tri- Video Services, A true and correct copy of -1- " the partnership agreement is attached hereto as Exhibit "A" (hereinafter "Partnership Agreement"). 5, The business purpose of the Partnership was to provide videotaping services for weddings, recitals, school activities, sporting events, seminars and other special events. In addition, the Partnership offered editing and reproduction of existing videotape. 6. During all times relevant to this Amended Complaint, defendant was the owner and operator of Triscari Productions, Inc. 7, The Partnership Agreement provided, inter alia, that, as capital contributions to the Partnership, Plaintiff was to pay for materials in the amount of$500 and contribute his labor to renovate the Office Space. S, Pursuant to the Partnership Agreement Defendant was to provide a Partnership web site and technical services in maintaining the Partnership equipment 9. On February 29,2000 Plaintiff and Defendant entered into a revised partnership agreement (hereinafter "Revised Partnership Agreement"). A true and correct copy of the Revised Partnership Agreement is attached hereto as Exhibit "B." 10, Pursuant to the Revised Partnership Agreement, Defendant was to contribute equipment to the Partnership including, cameras, tripods, light kits, audio, Hi-S, half inch VHS/SVHS and three quarter inch editing equipment, electronics racks, monitors, cables and the like. 11. Defendant estimated that the value of the above-stated equipment totaled $95,000, See, the true and correct copy of the Partnership inventory list attached hereto as Exhibit "c." 12. Plaintiff believes and therefore avers that the actual value of the items enumerated in Exhibit "e" was much less than $95,000. -2- " 13, The Revised Partnership Agreement states that the Partnership will pay Plaintiff, as its general manager, an annual salary of$41,500 per year. 14. In breach of this Agreement the Partnership Plaintiff has been paid only twenty thousand ($20,000,00) dollars. 15. On at least three occasions, Defendant was paid commissions on referrals he was not entitled to. Said unearned referrals relate to jobs for Messiah College, Everest and Adds on Wheels. (Copies of the checks made out to Defendant for these unearned commissions are in the possession of Defendant) 16, Defendant has taken equipment from the inventory of the Partnership without accounting for it, namely a Canare Patchbay and an Alta Centaurus editing equipment. 17, Defendant removed a videotape from the premises of the Partnership, said videotape containing valuable materials regarding an individual claiming to be a disciple of Jesus Christ. 18. It is believed and, therefore, averred that Defendant has sold or otherwise utilized the tape for his own personal gain, 19. It is believed and, therefore, averred that Defendant has removed other additional items from the Partnership inventory on other occasions without accounting for them. The exact identity of these items is unknown at this time as Defendant has refused to identify the partnership property in his possession. 20, On at least one occasion Defendant had the Partnership perform work which he would later characterize as his own personal enterprise, thereby denying the partnership revenue derived from such work. Such occasion involved the usurpation of a job filming a -3- barbershop quartet in Hershey, 21. Defendant failed to maintain the Office Space in a manner that allowed for an efficient operation of the Partnership, and required Plaintiff to personally expend monies for necessary repaIrs. 22. In October of2000, the Partnership added Ken Stephan, D,O., as a 5% partner for the sum of $10,000. A true and correct copy of the Investor Agreement joining Dr, Stephan as a 5% partner is attached hereto as Exhibit "D" ( hereinafter "Investor Agreement"), 23. Dr. Stephan's 5% interest in the Partnership was transferred to Thomas Speck on December 14, 2001. See the attached Assignment Agreement attached hereto as Exhibit "E" 24. Plaintiff has advanced approximately nine thousand ($9,000.00) dollars to the partnership for purchase of equipment and coverage of Partnership expenses, Copies of all receipts or invoices evidencing such advances are in Defendant's possession. 25, Commencing shortly after May 2000, Defendant failed to refer business to the Partnership as was orally agreed to between the Plaintiff and the Defendant at the outset of the Partnership, and as memorialized in the Partnership's business plan, 26. It is further believed and, therefore, averred that Defendant discouraged individuals from using the Partnership. 27, It is believed, and therefore averred, that Defendant discouraged at least two individuals, Charles Schultz and Charlie "Tremendous" Jones, from utilizing the Partnerships services. 28, It is believed and, therefore, averred that Defendant engaged in making false and misleading statements concerning the Partnership and Plaintiff, personally, with the intent -4- .' of causing a loss of business to the Partnership and Plaintiff, personally. 29. Defendant misidentified himself as Plaintiff to at least one client, Mary Gross, in order to usurp a Partnership opportunity for the benefit of his own business, 30. It is further believed and, therefore, averred that Defendant's motivation in refusing to refer work to the Partnership was to induce Plaintiff into doing construction work on his personal property. 31. Defendant implied that unless Plaintiff was willing to do construction work for him, the Partnership would receive no referrals from himself 32, By December of 2000, the Partnership began to suffer from a lack of work due to Defendant's breach of his agreement to provide referrals, and his wrongful conversion and dissipation of Partnership assets, 33. Due to the loss of revenue, the Partnership could no longer afford to pay rent. 34, Thereafter, the Partnership's operations were moved to Plaintiff's residence. 35, Defendant agreed and approved of the moving of the office, and a portion of the Partnership assets, to Plaintiff's residence. 36. Defendant retained possession of the remaining inventory and assets of the Partnership, and has retained such assets to this day. 37. The Plaintiff has attempted to carry on the affairs of the Partnership to the best of his ability with the limited equipment and resources remaining, 38. In reliance on Defendant's misrepresentations concerning his desire to properly conduct the Partnership, Plaintiff moved his family to the Cumberland County Pennsylvania area at great expense to himself -5- COUNT I DISSOLUTION OF PARTNERSHIP 39. The Plaintiff hereby incorporates by reference Paragraphs 1 through 38 with the same force and effect as if set forth at length, 40. Due to the Defendant's conduct described herein, the Plaintiff now seeks a judicial decree dissolving the Partnership pursuant to 15 Pa.C.S. ~ 8354, WHEREFORE, the Plaintiff demands a judgment in his favor against Defendant, Sebastian Triscari, in the form of a decree of dissolution of the Partnership, Tri- Video Services, thereby setting a date certain of Partnership dissolution, and such other relief as the court may deem appropriate. COUNT II ACTION FOR ACCOUNTING PURSUANT TO Pa.R.C.P NO. 1530 AND TO INSPECT BOOKS AND RECORDS PURSUANT TO 15 Pa.C.S. & 8335 41. The Plaintiff hereby incorporates by reference Paragraphs 1 through 40 with the same force and effect as if set forth at length. 42. Due to the Defendant's wrongful conduct described herein, including dissipating, misappropriating, conversion and overvaluing Partnership assets, Plaintiff is entitled to an accounting of the Partnership, including but not limited to an accounting by Defendant of: (a) All funds acquired through the improper use of partnership property; (b) The true value of all Partnership assets provided by Defendant; -6- (c) The conversion or use of all Partnership property for personal profit or gam; (d) All commissions improperly obtained from the Partnership; (e) All partnership equipment in his possession, or that he has sold, discarded or otherwise converted. WHEREFORE, Plaintiff demands judgment in his favor and against Sebastian Triscari and for an Order directing Defendant to produce all Partnership books and records for inspection pursuant to Pa.C.S, ~ 8335, account for all of the transactions, dealings, assets and liabilities of Tri- Video Services and such other relief that the Court deems just and proper. COUNT III APPOINTMENT OF RECEIVER 43. The Plaintiff hereby incorporates by reference Paragraphs 1 through 42 with the same force and effect as if set forth at length, 44, Based upon the wrongful conduct of Defendant ,as set forth above, the immediate appointment of a receiver as contemplated by 15 Pa.C.S. ~ 8359 is necessary to safeguard the remaining assets of the Partnership and to prevent the Defendant from further dissipating those assets. 45. The relief sought by the Plaintiff in this matter is emergent in nature in that the Plaintiff and the Partnership will suffer irreparable harm if the Defendant is permitted to continue dissipating the assets of the Partnership, -7- .. WHEREFORE, Plaintiff demands judgement in his favor and against the Defendant in the form of the Appointment of a Receiver with such powers and duties as this Court may from time to time direct as necessary to preserve the remaining assets of Defendants wherever situated now in the possession and control of the Defendant and the Plaintiff. COUNT IV BREACH OF FIDUCIARY DUTY 46. The Plaintiff hereby incorporates by reference Paragraphs 1 through 45 with the same force and effect as if set forth at length. 47, As an original equal partner of Tri-Video Services, the Defendant owes a fiduciary duty to the Partnership and to his partner, Thomas Speck. 48, The Defendant breached his fiduciary duty, as set forth herein, by, (a) failing to provide business references to the Partnership; (b) converting Partnership property to his own use; (c) overvaluing the assets he provided to the Partnership; (d) improperly receiving commissions to which he was not entitled; (e) usurping Partnership opportunities for his own personal gain; WHEREFORE, Plaintiff demands judgment in his favor and against Defendant for an amount in excess of the jurisdictional limit for arbitration, together with interest and costs, punitive damages, and such other and further relief as the Court deems just and proper. -8- .. COUNT V BREACH OF PARTNERSHIP AGREEMENT 49. The Plaintiff hereby incorporates by reference Paragraphs 1 through 48 with the same force and effect as if set forth at length. 50, The Partnership Agreement and the Revised Partnership Agreement are attached hereto as Exhibits "A", and "B" respectively. 51, The wrongful conduct of the Defendant described herein is a breach of the Partnership Agreement and the Revised Partnership Agreement in the following particular respects: (a) overvaluing the assets provided to the Partnership, and thereby not providing the value as promised; (b) failing to provide suitable office space; (c) failing to provide a web site, or its design and hosting; (d) overcharging for utilities; ( e) failing to provide references and! or usurping Partnership opportunities for his own personal gain; (t) failing to act with good faith and fair dealing, WHEREFORE, Plaintiff demands judgment in his favor and against Defendant for an amount in excess of the jurisdictional limit for arbitration, together with interest and costs, and such other and further relief as the Court deems just and proper. -9- COUNT VI TORTIOUS INTERFERENCE WITH PROSPECTIVE BUSINESS RELATIONS 52, The Plaintiff hereby incorporates by reference Paragraphs 1 through 51 with the same force and effect as if set forth at length, 53. Rather than refer certain prospective clients to the Partnership, had the services performed by Triscari Productions. 54. It is believed and therefore averred that Defendant's purpose and/or intent was to financially harm Plaintiff by lowering the income of the partnership, thereby lessening Plaintiff's partnership draw. 55. Defendant lacked any privilege or justification for these actions. 56. Due to the decrease in the gross revenue of the Partnership, Plaintiff has been damaged as his partnership interest is thereby devalued. WHEREFORE, Plaintiff demands judgment in his favor and against Defendant for an amount in excess of the jurisdictional limit for arbitration, together with interest and costs, punitive damages, and such other and further relief as the Court deems just and proper. COUNT VII COMMERCIAL DISPARAGEMENT 57, The Plaintiff hereby incorporates by reference Paragraphs I through 56 with the same force and effect as if set forth at length. 58. Defendant made untrue statements off act disparaging both the Partnership and Plaintiff, -10- 59, Defendant continuously referred to Plaintiff in derogatory terms in the presence of both his staff and customers of Triscari Productions. 60. As Triscari Productions was to be the primary source of referrals to the partnership, such comments negatively impacted the Partnerships ability to secure such referrals. 61. Defendant possessed no privilege to make such untrue statements, 62, Plaintiff has suffered direct financial loss through the Partnerships loss of business. WHEREFORE, Plaintiff demands judgment in his favor and against Defendant for an amount in excess of the jurisdictional limit for arbitration, together with interest and costs, punitive damages, and such other and further relief as the Court deems just and proper. COUNT VIII MISREPRESENTATION 63, The Plaintiff hereby incorporates by reference Paragraphs 1 through 62 with the same force and effect as if set forth at length. 64. The Defendant made negligent and careless misrepresentations to the Partnership and Thomas Speck personally, to wit: 1. statements made in the Partnership Agreement and the Revised Partnership Agreement regarding the value of the Defendant's capital contributions to the Partnership Defendants willingness and/or ability to provide the matters promised under the Agreements; 2, oral statements made to Thomas Speck personally regarding his good intentions to create a Partnership and to refer business to the Partnership, which would directly affect Mr. Speck personally. -11- 3. written statements made when the partnership was originally formed indicating that the potential income for the Partnership would be between $48,000 to $180,000 in its first year while its projected income in the second year would be $250,000, A true and correct copy of original income projections is attached hereto as Exhibit "F," 65. The Plaintiff understood the Defendant's negligent misrepresentations as factually accurate and relied on the statements to his detriment. 66, Defendant knew, or reasonably should have known, that Plaintiff would rely upon such misrepresentations in entering into the Partnership. 67. Plaintiff justifiably relied upon the negligent misrepresentations in entering into the Partnership, 68. The Defendant has suffered damage in relying on these misrepresentations in that he moved his entire family to the area for the sole purpose of conducting the business of the Partnership, forewent other employment opportunities in the belief the Partnership could and would produce the salary promised to him, through the loss of his Partnership contributions and through the loss of the Partnerships reasonably expected revenue and Income. -12- WHEREFORE, Plaintiff demands judgment in his favor and against Defendant for an amount in excess of the jurisdictional limit for arbitration, together with interest and costs, punitive damages, and such other and further relief as the Court deems just and proper. Respectfully submitted, THE LAW OFFICES OF MARK K. EMERY r-)I'O~ By '~<:7- Mark K. Emery Supreme Court J.D. #7 7 410 North Second Street Harrisburg, P A 17101 717-238-9883 -13- PRELIMINARY AGREEMENT RE: Triscari Video Services (TVS) 55 Central Blvd. Camp Hill, PA 17011 Established - Jan 1, 2000 Re-negotiation - prior to Jan 1, 2001 PARTIES: Partner! Producer. . . . . . . Thomas A. Speck Partner! Specialist. . . . . . Sebastian Triscari CONTRIBUTIONS: Thomas A. Speck, Materials and Labor to renovate office space at 55 Central Blvd., Camp Hill, Labor to set up equipment and work areas, Oversee planning, production & marketing of video services related to but not limited to, Collaborations with Triscari Productions or others, Approved projects over $5,000.00 or any under, Special events such as Weddings & Recitals, Film or picture transfers with or without sound, Inventory and other documentation recordings, page 1 '>>t l; It: 4. "A' PRELIMINARY AGREEMENT CONTRIBUTIONS: (continued) Sebastian Triscari Office spaces at 55 Central Blvd., Camp Hill Equipment including- Cameras, tripods, light kits, audio, Hi-a, 1/2" VHS/SVHS & 3/4" editing, electronics racks, monitors, cables, etc., Web site, designand hosting, Technical services and editing software, MUTUALLY AGREED: That both parties accept this preliminary agreement as an outline of a proposed business relationship between Triscari Productions Inc. and the proposed Triscari Video Services and that a contractual agreement be established between the two entities on or about 3/1/2000. Effective 1/1/2000, In consideration of the proposed partnership T.V.S. is to pay Triscari Productions Inc. the following: $40.00 per month for utilities 50% of it's profit. page 2 PRELIMINARY AGREEMENT MUTUALLY AGREED: ( continued) Sebastian Triscari agrees to reimburse Thomas A. Speck for costs of renovations to the office space if the described business relationship is terminated, by either party, prior to 3/1/2000. Effective 3/2000, Under contract T.V.S. is to pay: $40.00 per month for utilities $400.00 per month for office rent $100.00 per month for Equip. lease 30% of it's profit Thomas A. Speck agrees to a two (2) year non-compete agreement within a 60 mile radius of Camp Hill, PA. _J~~\ Sebatian Triscari Triscari Productions Inc. . '" -Ld~~ Thomas A. Speck Triscari Video Services page 3 . r- 5( REVISED PRELIMINARY AGREEMENT RE: Triscari Video Services 55-8 Central Blvd. Camp Hill, PA 17011 Established - Jan 1, 2000 Revised - February 29, 2000 Re-negotiation - prior to Jan 1, 2001 PARTIES: Partnerl Manager. . . . . . Thomas A. Speck (50% interest) Partnerl Associate. . . .. Sebastian Triscari (50% interest) MUTUALLY AGREED: That both parties accept this revised preliminary agreement as a current outline of a proposed business relationship between Sebastian Triscari representing Triscari Productions Inc. and Thomas A. Speck representing the newly created Triscari Video Services and that a contractual agreement be established between the two parties in May, 2000. PAGE 1 ~5 !J(I.:c.:,. "8" "'SI REVISED PRELIMINARY AGREEMENT In consideration of the agreement Thomas Speck agrees to the following work and contributions to the offices owned by Sebastian Triscari at 55-B Central Ave. Camp Hill, PA. Purchase $500.00 of building materials for renovations, Provide labor to renovate and paint office space and to set up equipment and work areas (approx. 4 weeks = $2,500.), Deliver office furniture and custom tops valued at $2,000.00, Provide the following computer c~mponents for an editing system; 450MHz tower system with 128 MB of RAM, AGP video card, 24X CD rom, 3 1/2" floppy, stereo speakers, modem, keyboard, mouse, pad, (1) 2 Gig. boot drive, (1) temporary 13 Gig. write to drive, labor & Windows 98. Total contribution valued at approximately $1,000.00. Description of duties of Thomas A. Speck: " Oversee planning, produ'ction & marketing of video services related to but not limited to, Special events such as Weddings & Recitals, Film or picture transfers with or without sound, School events such as sports ofthe arts, Inventory and other documentation recordings, Approved projects over $10,000.00 or any under, Collaborations with Triscari Productions or others, PAGE 2 yIi-<; REVISED PRELIMINARY AGREEMENT In consideration of the agreement Sebastian Triscari agrees to the following contributions to Triscari Video Services, Provide said office space for use by Triscari Video Services, To facilitate use of equipment by Triscari Video Services including- Cameras, tripods, light kits, audio equip., Hi-B, 1/2" VHS/SVHS & 3/4" editing, electronics racks, monitors, controllers, cables, etc., Technical services to oversee the connecting of equipment and components so as to assure their proper functioning, Provide the following computer components for an editing system; video capture board, hard drive and $500.00 to purchase (2) 21" svga mqnitors and cables, etc... to complete a working system. Total contribution approx. $1,000.00, Development and animation of Triscari Video Services logo as well as multi-page Web site design and hosting, Triscari Productions to purchase office furniture and desk tops, delivered by Thomas Speck, at a cost of $2,000.00, To extend to Triscari Video Services $2,500.00 in operating capital as an interest free loan. The loan is to be paid back in $500. installments. One installment will be due during each of the first five months that Triscari Video Services exceeds $10,000.00 in business during the month. ' PAGE 3 r- 2>( ~ REVISED PRELIMINARY AGREEMENT Furthermore, it is mutually understood and agreed that, Triscari Video Services shall pay an annual salary of $41,500.00 to Thomas Speck as general manager, Triscari Video Services shall pay Sebastian Triscari $500.00 per month as rent for office facilities, to begin April, 2000, Triscari Video Services shall split it's profits between Sebastian Triscari and Thomas Speck, 50% to both, It is understood that the completed editing system and office computers shall be the property of Triscari Video Services, Triscari Video Services will pay a flat 10% commission to Sebastian Triscari on productions, over $2,500.00, generated by him and his 'efforts, Triscari Productions Inc. shall pay a flat 10% commission to Thomas Speck on productions generated by his efforts, Sebastian Triscari agrees to reimburse Thomas A. Speck for costs of materials to renovate office space if the described business relationship is terminated, prior to 5/1/2000, 2 Speck wm agree to a nOn-compete agreement. ...-- Sebastian Triscari Triscari Productions Inc. Triscari Video Services PAGE 4 , I , I TRISCARI VIDEO SERVICES 55-B Central Boulevard Camp Hill, PA 17011 (717)-909-0745 INVENTORY UNIT #1 CAMERA SONY 3 ccd (w) Hi 8 DXC-325 & case . $7,400. Batteries (3) Charging Station Wise Guy charger & AC converter Miller Tripod & case Miller L.W. Dolly lVC TM41AU mini color field monitor UNIT #2 CAMERA SONY DXC-M3A & case SONY 3/4 BVU-150 Field deck Batteries (2) Anton Bauer charger & charging adapter lVC AC Power adapter Quickset Tripod D-2 Rolling Base Panasonic Quintrix II Color field monitor Supply of 3/4" sm. tapes Page 1 $285. $150. $120. . $1,750. $250. $200. . $3,500. $4,500. $150. $500. $200. $200. $50. $150. $500. Fil ; t..... " ~ If I I , I , INVENTOR Y continued UNIT #3 (lockdown) CAMERA SONY DXC-1800 & case . $1,500. , $1,000. AMPEX 3/4 Field deck Davis & Sanford rolling tripod $100. JVC CX 61 ODS mini color monitor $200. SVHSNHS UNITS P ANASONIC Omni movie HQ AFX CCD & case P ANASONIC Omni movie HQ AF SVHS & case . $1,000. . Sl,OOO. Batteries ( ) (2) Panasonic power supply/charger (w) case $50. Sony RM-E300 editing controller & titler . $1,000. Hitachi VHS movie, power supply & case .' $800. Tripod $100. OTHER EQUIPMENT JVC-KY 2000 (w) AC adapter JVC 3/4 field deck . Sl,OOO. $500. PANASONIC WV 3400 Panasonic NV-8420 VHS Field deck $100. $200. , Page 2 , I I , INVENTORY continued LIGHTING ----,_._-_.-. .. .....---- Strand case (4) IANEBEAM 1000 var. spots (w) barn doors $600. (4) Light Stands $100. Photo-Flex soft light kit $150. LOWELL case (3) DP lights (w) barn doors $750. (1) Stand $50. TOTA-SYSTEM (2) Tota-Lights (5) Tota-mounts (5) Flexi-shafts (2) Lrg. Tota-flectors (I) Un-bretIas (1) Tota-Pouch (3) Flag frames KOBOLD hand held spot $800. (2) Tota-clamps (1) Tota-tatch (5)Lrg. Tota-flags (1) Sm. Tota-flag (2) D screens (1) Stand $35. . . FREZZI Mini light (w) SONY BC-BOW BatteryCharger SONY NP-4000 Rechargeable Battery Pack SOUND $210. (2) SO~Y lapel mikes (1) PANASONIC shot gun mike . . (1) Telescopic mike boom $300. $200. $50. Page 3 , I . , ._~~~..- . ... - . .- .---- -... --.-.---....---...---- .--. , , . t I I , INVENTORY continued EDITING SUITE- (2) lVC CR-600U 3/4 UVCR (source) (1) lVC CR-850m 3/4 UVCR (recorder) ABNER controller . $7,000. . $5,500. . $3,500. Supply of 3/4" Ig. tapes $500. (1) P ANASONIC 6300 VHS Editing deck . $1,500. (l) SONY Photo Capture Camera . $1,500. (1) TAMRON FOTOVIX fiIm\video processor (slides) . $1,000. EFFECTS ALTA CENTAURUS still store edit/effects CPU, Key board controller $10,000. COMMODORE AMIGA 2000 VIDEO TOASTER . . $7,500. CPU, Keyboard & Mouse NON-LINEAR/DIGIT AL ADOBE PREMIERE 450MHz CPU (w) AT! 32MB Capture board 24X CD ROM, 16 bit stereo, , . 2 + 13 gig, hard drives . (2) 19" IBM 21P Monitors keyboard, mouse $2,000. Page 4 _"'..__'__R_._.__..._.__........ ._ , , , INVENTORY continued MONITORS , ' (1) 18" Panasonic Color Monitor (main) $450. (2) 13" Panasonic Color Monitors $500. (1) 13" Commodore 1084 Color Monitor (amiga) $250. (2) 11" Taxan Chromo Display Monitors $100. (l) 8" Panasonic Twin pack B&W $300. (1) 7" Panasonic Twin pack Color $500. (1) 5" Sony Trinitron Color Tri-pack $750. SOUND TASCAM M-308B Sound board Pioneer CD player Pioneer Tuner Equalizer & Controller (2) APM Speakers (2) Auratonen Speakers Recording booth DUPLICA TING . (1) RGB Computer/ SVideo converters (2) VDA-6 distribution amp. (10) GE HQ VHS VCRs VIDEO PROJECTOR KODAK LC500 Page 5 . . . $1,500. $150. $50. $50. $500. . $250. $1,200. $2,500. , , , , ' INVENTOR Y continued RACKS (2) 77" tall racks (4) 48" rack units (2) l7" top racks $500. $800. $300. OTHER EQUIPMENT TEXTRONIX 1410 Signal Generator . $4,200. CANARE Patchbay . $1,500. HITACHI RR-230 1" (reel to reel) . $4,500. JVC Editing Control Unit RM-86U . $1,500. Office Wave 133 Mhz (w) 24X CDROM (w) Hewlet Packard Printer . . . $500. 486 CPU (word processing) (w) Panasonic Printer , . . $300. Ilhuninated Sign . . . $l50. ASSORTED CABLES TOTAL VALUE OF INVENTORY $ 95,000. -~~?V~ 1J~, Sebastian Triscari ~~z Page 6 . . . I I , INVESTOR AGREEMENT RE: Triscari Video Services 55-B Central Blvd. Camp Hill, PA 17011 Established October, 2000 PARTIES: Partner/Manager. . . . . . . . . . Thomas A. Speck (47.5% interest) Partner/Associate. . . . . . . " Sebastian Triscari (47.5% interest) Partner/ Investor. . . . . . . . .. Ken Stephan (5% interest) MUTUALLY AGREED: That all parties accept this agreement as the basis for a working business relationship. It is understood that Ken Stephan shall invest the total amount of $1 0,000.00 into Triscari Video Services (AKA, Tri Video Services) for the purchase of equipment and the operations of said company. That, in consideration of this investment capital, he shall receive an interest share of 5% of the company. It is understood that Thomas Speck will reduce his previous 50% interest to 47.5% so as to pro.vide for half of Mr. Stephan's interest share. It is understood that Sebastian Triscari will reduce his previous 50% interest to 47.5% so as to provide for 'half of Mr. Stephan's interest share. ,!L Page 1 rr1I-.2 ~ € If I.: 'if. "nil , \ I ' . I (> , Triscari Video Services shall distribute profit dividends between the three partners, based on these newly established interest shares. It is also understood that Triscari Video Services will purchase all existing office furniture and custom tops from Mr. Triscari at a total cost of $2,000.00. This furniture will then become part of the existing inventory of Triscari Video Services at 55-B Central Blvd. All other applicable agreements, previously established between Sebastian Triscari and Thomas Speck, will remain in full effect. The above agreement is thereby accepted and this reorganization of interest shares is hereby established. _~ (L~ Sebastian Triscari ~gL Thomas A. SpecK Ken Step an Ut- Page 2 12/14/01 11:18 fAX 71~ UIZ ~lU3 ,-~-_...._""'-"",.' IUIY . ....,. Kenneth Stephan, to.transfer and assign to Thomas Speck, an ThOMas SP.ck he, eby ag os to accept from Kenn~th Stephan, M.D" all of ~.: Stepihan's r'ght, title iilnd interest: in and to tQe T i Video Par~ner.~ip ~d '11 of the aseets and personaL property th~u:eof.. :Kenn~th $tep .an, M.D., hereby ab/illo:l.utely and unl:ondit:l;cinall~ wi~hdr,ws from .dlaspects of the Tri Video P61rtnersh~p, iqc::lu!1ingthe withdrawal and relinq\l.1.shment of an and'. all o"!'nersl1ip ~nte est therein.. Themn SPlick promises to Kenneth Stephart. Mi.D.,. $10, 000 in con.1.deration of the transfe of the pa~tner~hip! intra.t. i ~. i' e. . T.hom.. Spe k agree~ te:rele RQ,! ind mnify and h9ld harmless; Kenneth stephan M.D., from and agalin5lt any and all duties, obl:igat:i.ons, and lia~i~~t~~. Of~lthel Tri Video Partnership including, but not necessarily 1i it@~ to any action, cause of a~tion, claim or de~and wh~tsoe Jer ~ ay thlrd party. ' i This ~Q'rell!ment may be'. executed in any and each co~nterpart shall fer all purp s- 1. 1 ~) I , . , 'l '. I , the parties hereto have dulyentBred ~~eml!!'!nt thiS' 12<" day of Deeember, 2001. E Je": ';1. \\E '1 . . 1 t J . f, " . l) , . TVP INC. & Tom Speck January 1, 2000 to December 30,2000 Re-nogatiation January 1, 2001 - Non-compete clause 2 years in Triscari Production contribution: 1. Location - 55 Central Blvd, Camp Hill, P A 17011 2. Sign Space - 2 sides - 2 lines 8" x 36" 3. Web site - Design hosting 4. Equipment - % "Edit, Y:z VHS - SVHS, Hi-8, Light kit, tripod - several cameras 5. Good Name 6. First 2 months - No rent. Thereafter $500.00 month plus Y:z of the utilities Tom Speck Contribution: 1. Materials 2. Labor - Finish space, assemble equipment Products: 1. Film transfers 2. Dance recitals 3. Weddings 4. Special events 5. Video inventory 6. Pictures & music to tape 7. School events 8. Collaboration with Chuck Shults Enterprise First 2 months Thereafter 50 - 50 split 70 - 30 split Income Projections $4,000 I Month $10,000 I Month $15,000 I Month Worst Case Expected Best Case $48,000 I Year ' $120,000 I Year $180,000 I Year 2nd Year $250,000 tJtl: L.-,. ,\ F - .. . . I" , . . . . , . . ,). t VERIFICATION I, Thomas A. Speck, hereby verify that I have read the foregoing Amended Complaint and that the information contained therein is true and correct tot he best of my knowledge, information and belief. I understand that false statements herein are subject to the penalties of 18 Pa.C.S, S 4904 relating to unsworn falsification to authorities. \nO~~ DATE:as-rf?J . .. " .. . ... r . ., . It , # l" . CERTIFICATE OF SERVICE AND NOW, this 21 st day of May, 2002, I, Mark K. Emery, Esquire do hereby certify that I have served the foregoing Amended Complaint by mailing a true and correct copy via United States first class mail, addressed as follows: Barbara Sumple-Sullivan, Esquire 549 Bridge Street New Cumberland, PA 17070-1931 LAW OFFICES OF MARK K. EMERY BY:~~ -Mark K. Emery .- .'- -~.~._~-'=....,.._...,--~~---..,-,-,. tts. ~:3 " , ' 2: ,or:. ~-_. i' u (, ("I (' L'i' l i'l '- .. .. ~ - ,'~ ,--i: C~'~7 C..','< (..L~ C: .". (' '.-.-' , G ,- !) '/ "/-: ,Cj .J- . .. , v '- 05/15/2002 11:21 2389884 MARK K EIYERY PAGE 03 .. v. : IN THE COURT OF COMMON PLEAS : CUMBERLAND COUNTY, PENNSYLVANIA : CIVil ACTION : LAW AND eQUITY : No, 2001-1868 01- "T08<, ffer- SIA""Ic--S..I/t"';" pfLrakpA.' THOMAS A. SPECK Plaintiff v, SEBASTIAN G,Z TRISCARI Defendant KENNETH STEPHAN Additional Defendant : STIPULATION OF CONSENT TO AMEND COMPLAINT AND NOW, come. the Defendant, Sebastian G,Z, Tnscarl, by and through his attorney, Barbara Sumple-Sullivan, and hereby consents to allow Plaintiff to file a First Amended Complaint pursuant to Pa. R.C,P 1033. Said amended complaint shall be filed on or before May 21, 2002. Respectfully submitted, DATED:'S:/~ -o;{ arbara Sumple-Sulhvan Supreme Court 1.0, No 32317 New Cumberland, PA 17070-1931 717 -774-1445 Attorney for Defendant Triscari r I I I ~ {'-.J ,.... .c: ~ ?i :s~ (-)-.... /:-, L.-, --~ ':);::J -'~? >:- .,1'; If) ,_2 \':cZ ,..uuJ .~CICl- ~ ::::> o ('oj .. - - ,.,1;,.... 0- ~,L l.' ~' N o . ' Barbara Sumple-Sullivan, Esquire Supreme Court #32317 549 Bridge Street New Cumberland, PA 17070 (717) 774-1445 THOMAS A. SPECK, Plaintiff : IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA v. CIVIL ACTION : LAW AND EQUITY SEBASTIAN G. Z. TRISCARI, Defendant : NO. 2001-7086 v. KENNETH R. STEPHAN, Additional Defendant : JURY TRIAL DEMANDED NOTICE TO DEFEND 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 OR CANNOT AFFORD ONE, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW TO FIND OUT WHERE YOU CAN GET LEGAL HELP. CUMBERLAND COUNTY BAR ASSOCIATION 2 LIBERTY AVENUE Carlisle, Pennsylvania 17013 (717) 249-3166 Barbara Sumple-Sullivan, Esquire Supreme Court #32317 549 Bridge Street New Cumberland, PA 17070 (717) 774-1445 THOMAS A. SPECK, Plaintiff IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA v. CIVIL ACTION LAW AND EQUITY SEBASTIAN G. Z. TRISCARI, Defendant : NO. 2001-7086 v. KENNETH R. STEPHAN, Additional Defendant JURY TRIAL DEMANDED ANSWER AND COUNTERCLAIM OF DEFENDANT. SEBASTIAN G.Z. TRISCARI 1. Denied. After reasonable investigation, Defendant is without knowledge or information sufficient to form a belief as to the truth of said averment and said averment is denied. To the best of Defendant's knowledge, Plaintiff no longer resides at the listed address. 2. Admitted. 3. Admitted in part. Denied in part. It is admitted that the parties had an address for conducting business of 55 Central Boulevard, Camp Hill, Cumberland County, Pennsylvania. The remainder of the averments in said paragraph as to the nature of their association is denied as a conclusion oflaw. To the extent a response is required and, in the alternative, it is denied that the parties were equal partners given the existence of a 1 third party, the named Additional Defendant, Kenneth R. Stephan. 4. Denied. It is denied that on January 1, 2000, a partnership agreement was entered into between Plaintiff and Defendant for the purposes of establishing Tri- Video Services. It is averred that, on or about that date, Plaintiff contacted Defendant to determine if Defendant had an opportunity for Plaintiff to work in video production. The parties then developed a "Preliminary Agreement," which was executed between the parties. The agreement was an outline of a proposed business relationship between Triscari Productions, Inc. and that the proposed Triscari Video Services. It stated that a contractual agreement would be established between the two entities on or about March 1,2000. It is admitted that a copy of the Preliminary Agreement is attached to the Complaint as Exhibit "A." It is denied as a conclusion of law that said agreement constituted a partnership agreement between Plaintiff and Defendant. 5. Admitted in part. Denied in part. It is admitted that the business purpose of the contemplated business association was to provide videotaping for weddings, recitals, school activities, sporting events, seminars and other special events. It is also admitted that the entity was to offer editing and reproduction of existing videos. It is denied that said entity was intended at that time to be a partnership or the agreement was a written partnership agreement. 6. Denied. Paragraph 6 is denied as stated. Triscari Productions, Inc. is a validly formeddand existing corporation. It is admitted that Defendant is the Chief Operations Officer for 2 said corporation and owns shares of stock in said corporation. It is denied that Defendant is the owner and operator. 7. Denied. It is denied that Exhibit "A," which Plaintiff has identified as a Partnership Agreement is a Partnership Agreement. The averments of Paragraph 4 are incorporated by reference. It is further denied that said writing provided that, as a capital contribution to the Partnership, Plaintiff was to pay for materials in the amount ofFlVE HUNDRED DOLLARS ($500.00) and contribute his labor to renovate the Office Space. It is averred that Exhibit "A" is a writing which speaks for itself and any characterization of the terms or nature of the documents is denied. 8. Denied. The averments of paragraph 4 are incorporated herein by reference. It is denied that Exhibit "A," which Plaintiff has identified as a Partnership Agreement provides that Defendant was to provide a Partnership web site and technical service in maintaining the Partnership equipment. It is averred that Exhibit "A" is a writing which speaks for itself and any characterization of the term or nature of the document is denied. 9. Denied. It is denied that on February 29,2000, Plaintiff and Defendant entered into a Revised Partnership Agreement. It is averred that a "Revised Preliminary Agreement" was established on or about February 29, 2000, which writing was attached as Exhibit "R." It is averred that Exhibit "B" is a writing which speaks for itself and any characterization of the terms or nature of the documents is denied. It is further averred that said agreement represented a proposed business relationship between Sebastian 3 Triscari representing Triscari Production, Inc. and Thomas A. Speck representing the newly created Triscari Video Services and that a contractual agreement would be established between the two parties in May, 2000. 10. Denied. It is denied that Exhibit "B" constitutes a revised partnership agreement. The averments of paragraph 9 are incorporated herein by reference. It is specifically denied that, pursuant to said "Revised Preliminary Agreement," Defendant was to contribute equipment to the partnership including, cameras, tripods, light kits, audio, Hi-8, half inch VHS, SVHA and three quarter inch editing equipment, electronic racks, monitors, cables and the like. It is specifically averred that Exhibit "B" indicated that Defendant, on behalf of Triscari Productions, Inc., would "facilitate use of equipment by Triscari Video Services." It is averred that, pursuant to the Revised Preliminary Agreement, the equipment was not transferred to Triscari Video Services. 11. Admitted in part. Denied in part. Paragraph 11 is admitted with the clarification that Defendant estimated the purchase price of the inventory of equipment set forth as NINETY-FIVE THOUSAND DOLLARS ($95,000.00). It is further asserted that Defendant did not intend said equipment to be Partnership assets and did not prepare Exhibit "C." Defendant never intended same to be a listing of inventory of Triscari Video Services in accordance with the terms of the Preliminary Agreement and Revised Preliminary Agreement. 12. Denied. After reasonable investigation, Defendant is without sufficient information to 4 form a belief as to truth of said averment and same is denied. It is averred, however, that it is the nature of such technology and electronics to become quickly antiquated and depreciate in value from date of purchase. 13. Denied. It is denied that a Revised Partnership Agreement exists. Paragraph 9 is incorporated herein by reference. It is averred that, pursuant to the "Revised Preliminary Agreement" attached as Exhibit "B" for a proposed business relationship, an annual salary of FORTY-ONE THOUSAND FIVE HUNDRED DOLLARS ($41,500.00) was reviewed. It is averred, however, that salary requirements for Plaintiff to function as general manager of the business were latter agreed upon to be a sliding value dependent upon the success of the enterprise and the monies which Plaintiff generated through the business. It was specifically discussed that the sums could be less or more dependent on the success by Plaintiff. However, no fixed salary was ever agreed to at any time by the parties. It is further averred that Plaintiff failed to perform any business duties requested by Defendant's failure to report earnings or other financial information for the business entity. 14. Denied. It is denied that any specific agreement was reached on the salary to be paid to Plaintiff. It is further averred that monies taken by Plaintiff, which amounted in excess of TWENTY THOUSAND DOLLARS ($20,000.00) were not approved by Defendant and taken without Defendant's notice. It is further averred that Plaintiff never revealed withdrawal of these sums from the business until the time of filing this Amended Complaint and rather had previously represented that he received no monies. 5 15. Denied. It is denied that Defendant received commissions on referrals which he was not entitled to. It is averred that Plaintiff, as the manager of the business, handled all financial affairs of the business and actually made all checks payable from the business, including any checks to Defendant. It is averred that if any payment for commissions was inappropriate, Plaintiff was negligent in making said payments. It is further averred that Plaintiff repeatedly failed to maintain accurate and sufficient records of the business and that his repeated failures in this regard resulted in financial losses incurred by the business. It is further asserted that any sums paid by Plaintiff to Defendant in accordance with their agreement for payment of commissions. 16. Denied. Defendant has never taken equipment from the Partnership because the assets cited were not Partnership assets. It is further asserted that all equipment purchased by and on behalf of the Partnership was and continues to be in the possession of the Plaintiff. 17. Denied. It is denied that Defendant ever removed a video tape from the premises of the Partnership which contained valuable materials regarding an individual claiming to be disciple of Jesus Christ. It is averred that Plaintiff, through his own incompetence and lack of appropriate care in operating the business, lost the tape and future opportunities for the business. 18. Denied. It is denied that Defendant ever sold or otherwise utilized the tape for his own purposes. Specific proof of same is demanded at trial. By way of further answer, 6 paragraph 17 is incorporated herein by reference. 19. Admitted in part. Denied in part. It is admitted that Defendant had allowed the free exchange of his corporation's equipment between his business address of 59 Central Boulevard for use at 55 Central Boulevard. It is denied such property became assets of the Partnership. It is denied that Defendant ever permanently took any item from the Partnership without accounting for it. It is further averred that when Plaintiff left 55 Central Boulevard, he did so without notice to the Defendant and took all Partnership property therein, except items to be discarded by the landlord. Plaintiff did not leave an inventory of Partnership assets or Triscari Productions Inc.'s items so that the whereabouts of the equipment for these entities could be appropriately determined. 20. Denied. It is denied that Defendant performed work which he would later categorize as his own personal enterprise. All work received by Defendant was initially to be handled by Triscari Productions, Inc. except small jobs or other undesirable work which Defendant choose not to undertake. It is averred that the development of the business entity was solely to handle work not desired by Defendant or work too small to be handled by Triscari Productions, Inc. It was further averred that there was a clear understanding that referrals of only these types of jobs would be made to Plaintiff. It is further asserted that these referrals were to be only one source of revenue for the Partnership and not the sole source. Plaintiff repeatedly failed to develop the business as he represented he would. 7 21. Denied. It is denied that the office space was not maintained. It is averred that throughout the term of the occupancy, only one issue arose which related to a pipe. It is averred that Plaintiff repaired the situation before it even gave notice to Defendant. It should be noted that Defendant is the owner of the real estate and that notice should have been given to him as landlord prior to Plaintiff acting unilaterally to take remedial actions in the building. It is further averred that the rent charged by Defendant to the business entity was below market value as further assistance to the developing business. 22. Admitted in part. Denied in part. It is admitted that in October of2000, the Partnership added Kenneth Stephan as a partner. It is denied that Stephan was added as a limited partner or that the partnership was a limited partnership. It is believed and averred that the percentage of five percent (5%) as set forth in Exhibit "D" was utilized to define the percentage for distribution of profit dividends between the three partners in light of the nominal investment and lack of contribution provided by the Additional Defendant Stephan. 23. Admitted in part. Denied in part. It is admitted that a writing dated December 14,2001 is attached as Exhibit "E" and that by it, Additional Defendant is purporting to transfer to Plaintiff his interest in the Partnership. It is denied that said transfer is legally effectuated. It is averred that this transfer was made without notice or approval of the Defendant. It is further asserted, that to the best knowledge of Plaintiff, the Partnership ceased existence in December, 2000, in advance of any purported transfer of interest. 8 24. Denied. After reasonable investigation, Defendant is without knowledge or information sufficient to form a belief as to the truth of said averment and said averment is denied. It is further denied that Defendant has any information, receipts or documentation supporting Plaintiff s allegation of contribution of NINE THOUSAND DOLLARS ($9,000.00) and proof thereof is demanded. 25. Denied. It is denied that referrals to the partnership ceased after May, 2000. It is asserted that the referrals were made as long as Plaintiff satisfactorily serviced the accounts being referred to him by Defendant. The exact date when referrals ceased is unknown by Defendant. However, it is asserted that Plaintiff failed to share with Defendant any information concerning the operation of the business, its financial status or its profitability. Plaintifffailed to service the referrals and/or failed to satisfactorily service the referrals made, causing these individuals to complain and seek remedial measures from Defendant immediately. It was only upon Plaintiffs breach to properly operate the business in a professional and appropriate matter did referrals cease. It is denied that there was any business plan at the onset of the Partnership. 26. Denied. It is denied that Defendant discouraged individuals from using the Partnership. Proof of same is requested. 27. Denied. It is denied that Defendant discouraged Charles Schultz and Charlie "Tremendous" Jones from using the Partnership services. It is averred that Defendant made the referral of Charles Schultz to the Partnership and contractual work was 9 negotiated between Plaintiff and Mr. Schultz as a result of the referral. By way of further answer, to this date, said work has never been completed by Plaintiff. Defendant has no knowledge as to the arrangements and agreement regarding Mr. Jones other than introduction was made of Plaintiff to Mr. Jones by Defendant. 28. Denied. It is denied that Defendant has made any false and misleading statements concerning the Partnership and Plaintiff personally. It is denied that Defendant has any intention of causing any loss of business to the Partnership and Plaintiff personally. Strict proof of same is required at trial. 29. Denied. After reasonable investigation, Defendant is without knowledge sufficient to form a belief as to the truth of the averment and said averment is denied. 30. Denied. It is denied that Defendant had any motivation to refuse to refer work to the Partnership other than to avoid damage to the professional reputation in making the referral and/or having demands made on him to correct the errors of Plaintiff. It is averred that Defendant had no desire to induce Plaintiff to perform construction work. It is averred that Defendant did and could have provided some construction work for Plaintiff while Tri-Video Services was in its growing stages to supplement Plaintiffs lack of income from the entity. Defendant believed this would help Plaintiff since the amount of his income was to be dependant on the growth of the Partnership business. 31. Denied. Paragraph 31 is denied. Defendant is without information or belief sufficient to 10 form a belief as to the truth of the averment and same is denied. It is asserted that Defendant made no statement concerning same and said allegation is illogical in that the association was formed to allow Defendant to receive a portion of work which his current business could not handle or chose not to handle because of its minor nature. 32. Admitted in part. Denied in part. It is admitted that by December, 2000, the Partnership suffered. It is asserted that Plaintiff failed to provide Defendant with any status report of the Partnership because Plaintiff, as managing partner, kept little or no records, provided no reports, disbursed monies as he pleased without consulting with the other partners. It is denied that the business suffered from a lack of work due to the Defendant's alleged breach of agreement to provide referral or any conversion of Partnership assets. It is averred that the Partnership failed because Plaintiff, as managing partner, failed to complete the referrals made to him, failed to correctly complete work referred to him, lacked the skill to operate the business, lacked the ability to run a business and because he took monies for personal uses such as food and supplies for his family, failed to undertake any business development efforts. 33. Denied. After reasonable investigation, Defendant is without knowledge sufficient to form a truth of the averment and said paragraph is denied. It is asserted and believed that any loss of revenue resulted from the reasons set forth in paragraph 32 which is incorporated herein by reference. 34. Admitted with the clarification that said relocation occurred without notice and/or 11 approval of the other partners. It is asserted that Defendant was out of the country when the move occurred and Defendant was notified by employees of his corporation, Triscari Productions, Inc. that trucks were at the Partnership office removing items. It is further averred that Defendant has no knowledge if the Partnership business continued after that date. It is averred that, while Defendant has no specific knowledge, Plaintiff seemed to cease operation of the business upon relocation and his failure to provide any business information to the partners continued. 35. Admitted in part. Denied in part. It is admitted that after Plaintiff relocated from the business, he advised that he could not pay the rent. Defendant then agreed to the relocation from the Partnership space since it was already completed. It is averred that the actual move occurred without notice to Defendant. Plaintiff made the relocation while the Defendant was out of the country and Plaintiff took Partnership assets including the Partnership equipment, financial accountings and all business records from the Partnership office space without any inventory being left or approved by the Defendant. 36. Denied. It is denied that Defendant has Partnership inventory or the assets of the Partnership. By way of further answer, the response to paragraphs 10, 11 and 35 are incorporated herein be reference. 37. Denied. After reasonable investigation, Defendant has no knowledge as to any attempts of Plaintiffto carry on the affairs of the Partnership after the relocation. It is asserted that no reports, records, meetings, notice or financial accounting, were ever given by Plaintiff. 12 It is also averred that at the conclusion of the 2000 year, Defendant repeatedly sought information about the Partnership for his completion of his taxes. Plaintiff, as managing partner, failed to provide any information, failed to appropriately handle Partnership affairs, failed to appropriately handle the winding up of the partnership, failed to provide the necessary documents and make necessary filings and refused to provide even the underlying financial information to allow Defendant to undertake completion of winding up of the affairs, or an audit and accounting of the Partnership. Plaintiff also misrepresented to Defendant the status of the formal accounting for the business and the costs he was to pay for said accounting. 38. Denied. After reasonable investigation, Defendant is without knowledge sufficient to form a belief as to the truth of the averment and said paragraph is denied. It is further specifically denied that Defendant made any misrepresentation to the Plaintiff and that Defendant specifically complied with the terms of all agreements with Plaintiff. COUNT I DISSOLUTION OF PARTNERSHIP 39. Defendant incorporates by reference paragraphs 1 through 38. 40. Denied. Paragraph 40 is denied as a conclusion of law to which no responsive pleading is due. It is denied that any conduct by Defendant warrants ajudicial decree of the Partnership, pursuant to 15 C.S. 8354. It is asserted that because of Plaintiffs mismanagement, Defendant requests formal decree of dissolution. 13 COUNT II ACTION FOR ACCOUNTING PURSUANT TO Pa.R.C.P. NO. 1530 AND TO INSPECT THE BOOKS AND RECORDS PURSUANT TO 15 Pa.C.S. ~8335 41. Defendant incorporates his answers to paragraphs 1 through 40 of the Answer and his Counterclaim. 42. Denied. It is denied that Defendant undertook any wrongful conduct such as dissipating, misappropriating, converting or overvaluing the Partnership assets. It is averred that Plaintiff is guilty of misappropriation, improper management and removal of Partnership asset. Plaintiff totally controlled the operations of the Partnership, had total control of the day to day business operation, totally controlled the financial affairs of the Partnership, and thus must account to the Defendant for the losses and affairs of the Partnership. WHEREFORE, Defendant requests judgment against Plaintiff and in his favor for an accounting and access to all Partnership records and receipts. COUTN III APPOINTMENT OF RECEIVER 43. The Defendant hereby incorporates by reference his Answers to paragraphs 1 though 42. 44. Admitted in Part. Denied in Part. Paragraph 44 is denied. It is denied that Defendant was responsible for any wrongful conduct for the reasons set forth in the Counterclaim, 14 which is incorporated herein, Defendant avers Plaintiff is guilty of wrongful conduct. It is averred that any act to safeguard the Partnership assets should be taken. It is averred that Defendant has long asked that the assets be placed in escrow and safekeeping but Plaintiff has repeatedly refused. 45. Denied. It is denied that the matter is of "emergent" nature. It is averred if such an emergency nature exists, action would have been taken by Plaintiff prior to filing this Amended complaint, which actions would have included taking any and all equipment which it believed it was entitled to when Plaintiff unilaterally, relocated without notice which assets were in his sole control, immediately filing a lawsuit prior to the threat of same by Defendant as Defendant was intending to enforce the obligations of the Plaintiff as managing partner to provide an accounting for tax purposes, and to seek some injunctive relief upon his leaving the Partnership location in December 2000. WHEREFORE, Defendant demands judgment in his favor but has no objection to Appointment of a Receiver to protect his interests. COUNT IV BREACH OF FIDUCIARY DUTY 46. Plaintiff hereby incorporates by reference his Answer to paragraphs 1 through 45. 47. Paragraph 47 is denied as a conclusion oflaw to which no responsive pleading is due. 48. It is denied that Defendant breached any fiduciary duty due Plaintiff. It is further averred 15 that: a) Defendant made business referrals to the Partnership and continued to do so until Plaintiff s unsatisfactory performance of his job duties made it impossible to do so; b) Defendant denied converting any Partnership assets to his use and incorporates by reference paragraphs 9 and 10 of his Answer to the Complaint. It is further averred that all Partnership assets were and continue to be in sole possession of Plaintiff; c) Defendant never transferred the property to the Partnership nor ever provided an overstatement of value for the property available for use by the Partnership; d) Defendant denies receiving any commissions to which he was not entitled. It is further averred that ifhe did receive such commissions in error, said commissions were received solely from and paid directly by Plaintiff, who has sole control of the financial affairs of the Partnership, which illustrates Plaintiff s complete incompetence in handling the business affairs of the Partnership; e) Defendant denies usurping any Partnership opportunities for his own personal gam. WHEREFORE, Defendant demands judgment in his favor and against Plaintiff. 16 COUNT V BREACH OF PARTNERSHIP AGREEMENT 49. Defendant incorporates by reference his Answer to paragraphs 1 though 48. 50. Denied. It is denied that the documents attached as Exhibits "A" and "B" are Partnership Agreements for the reasons set forth in paragraphs 4 through I 0, which are incorporated herein by reference. It is denied that any written Partnership Agreement exists. 51. Denied. Paragraph 51 is denied as a conclusion oflaw to which no responsive pleading is due. By way of further answer, Defendant incorporates by reference paragraph 51. WHEREFORE, Defendant requests judgment be entered in his favor. It is further asserted that Plaintiff has failed to plead or prove any economic damages in this matter. COUNT VI TORTUOUSINTERFERENCE~TH PROSPECTIVE BUSINESS RELATIONS 52. Defendant incorporates by reference his Answer to paragraphs 1 though 51. 53. Denied. Paragraph 53 is not a complete sentence and is unintelligible and cannot be answered. 54. Denied. Paragraph 54 is denied. It is denied that Defendant's purpose and/or intent was 17 to financially harm Plaintiff by lowering the income of the Partnership, thereby lessening the Plaintiffs Partnership draw. It is averred that Defendant fully complied with his referrals to Plaintiff provided Plaintiff would adequately and professionally service those referrals. Once Plaintiff showed that he was incompetent in handling the requirement of those referrals, Defendant ceased making those referrals. However, it is further averred that Defendant did nothing to obstruct Plaintiffs ability to develop the business. It is averred that the business failed solely due to incompetent management of business affairs by Plaintiff. 55. Denied. Paragraph 55 is denied as a legal conclusion to which no responsive pleading is due. By way of further answer, Defendant incorporates paragraph 54 by reference. 56. Admitted in part. Denied in part. It is admitted that decrease in gross revenue of the Partnership has caused devaluation in his Partnership interests of Plaintiff. It is further admitted that the decrease in gross revenue of the Partnership caused a devaluation of the Partnership interests of Defendant. It is denied that the decrease in gross revenue resulted from the acts of the Defendant. It is averred that said decline resulted solely from incompetence and lack of technological and business ability of Plaintiff, which expertise Plaintiff had represented to Defendant that he had possessed. It is further averred that, Plaintiff has failed to plead any economic damage in this matter. WHEREFORE, Defendant requests judgment be entered in his favor. 18 COUNT VII COMMERCIAL DISPARAGEMENT 57. Defendant hereby incorporates by reference his answers to paragraphs I though 56. 58. Denied. It is denied that Defendant made any untrue statements concerning the Partnership or plaintiff and proof of same is demanded. 59. Denied. After reasonable investigation, Defendant is without knowledge sufficient to form a belief as to the truth of the averment and proof of same is required. Defendant is without knowledge as to what Plaintiff considers derogatory terms. It is denied that any negative or inappropriate comment was made to any customers ofTriscari Productions, Inc. 60. Denied. After reasonable investigation, Defendant is without knowledge sufficient to form a belief as to the truth of the averment and proof of same is required. It is further averred that Plaintiff, as managing partner, was charged with the development of the new business entity. The growth of the business of the Partnership was not the responsibility of the Defendant, nor was any referrals by Defendant intended to be sole stream of revenue of the Partnership. It is Plaintiff who failed to grow and develop the Partnership as was anticipated by the parties, to the loss and detriment of Defendant. 61. Denied. Paragraph 61 is denied as a legal conclusion to which no responsive pleading is due. 19 62. Denied. Paragraph 62 is denied as a conclusion oflaw to which no responsive pleading is due. It is further averred that Plaintiff has failed to plead any specific economic damages in this matter. COUNT VIII MISREPRESENTATION 63. Defendant hereby incorporates by reference his answers to paragraphs 1 though 62. 64. Denied. It is denied that any negligent and careless misrepresentations were made. By way of further answer it is averred as follows: 1. Denied. It is denied that any written Partnership Agreement existed between Plaintiff and Defendant. Alternatively, even if the court would deem Plaintiff s Exhibits "A" and "B" to be Partnership Agreements, they were not executed between the named parties. It is also averred that said exhibits do not state any values as capital contributions to the Partnership. 2. Admitted. It is agreed that Defendant orally made representations to Plaintiff concerning his good intentions to create a partnership and refer business to the Partnership. It is averred that Defendant complied with these representations only after Plaintiff failed to service and/or perform satisfactory services required by the persons referred in a satisfactory and successful manner. 3. Admitted in part. It is admitted that business projections were made as part of planning for the business entity. It is asserted that such projections are set forth 20 on Exhibit "E." It is averred that said exhibit was created by Plaintiff and the document shows the continuing nature of the negotiations between the parties after the execution of Exhibits "A" and "B." It is further averred that during the initial year of operation after start up, income in excess of the worst year projections was in fact placed by Defendant based on the referrals actually made. 65. Denied. After reasonable investigation, Defendant is without knowledge to form a belief as to the truth of the averment. It is denied any representation was made by Defendant. 66. Denied. Paragraph 66 is denied as a conclusion of law to which no responsive pleading is due. 67. Denied. After reasonable investigation, Defendant is without knowledge to form a belief as to the truth of the averment. It is denied any representation was made by Defendant. 68. Denied. After reasonable investigation, Defendant is without knowledge to form a belief as to the truth of the averment. It is denied any representation was made by Defendant. It is further averred that Plaintiff has failed to plead any economic damages alleged to be suffered. WHEREFORE, judgment in favor of Defendant is requested. 21 COUNTERCLAIM 69. Counterclaim Plaintiff is Sebastian Triscari, an individual residing at 59 Central Boulevard, Camp Hill, Cumberland County, Pennsylvania 17011. 70. Counterclaim Defendant is Thomas A. Speck, an individual who purports to reside at 4408 Carlisle Pike, Camp Hill, Cumberland County, Pennsylvania 17011. 71. Counterclaim Plaintiff has extensive years of experience and an established reputation in the audio/video production industry. 72. Counterclaim Plaintiff is chief operating officer of Triscari Productions, Inc., a Pennsylvania corporation, which has been incorporated since 1995. 73. Counterclaim Plaintiff also individually owns certain real estate located at 55 Central Boulevard, Camp Hill, Cumberland County, Pennsylvania, which real estate Counterclaim Plaintiff leases to businesses. 74. Near the end of 1999, Counterclaim Defendant Speck approached Counterclaim Plaintiff Triscari to determine if any type of business relationship could be developed between them which would allow Counterclaim Defendant Speck to be part of the video production industry. 22 75. After numerous conversations, it was orally agreed between the parties that a separate entity would be developed between them, which entity was intended to capture a portion ofthe existing Central Pennsylvania video market which was identified as not being serviced by Counterclaim Plaintiff through his other business entitles. 76. The parties agreed that said market would include small and less valuable projects such as video taping weddings, meetings, video transfers, etc. 77. The parties agreed that they would combine into ajoint entity to be developed by the parties, which would be managed by Counterclaim Defendant and would be operated by Counterclaim Defendant. 78. The parties agreed the Counterclaim Plaintiff would be granted a commission for referrals of businesses made, as well as an equal percentage of the net revenue ofthe new business. 79. At all times relevant hereto, it was known and agreed that Counterclaim Plaintiff would continue his current business and refer to Counterclaim Defendant those jobs which he choose not to perform. 80. There was never any commitment in the number of referrals or quantity of work to be referred to the new entity by Counterclaim Plaintiff. 23 81. In order to assist the new entity, Counterclaim Plaintiff also agreed that space would be provided to the entity at the offices owned by Counterclaim Plaintiff at a reduced rent. 82. The fair market value of the rental of the space utilized by the new entity was ONE THOUSAND FIVE HUNDRED DOLLARS ($1,500.00) per month. 83. Counterclaim Plaintiff allowed the entity three (3) full months of free monthly rent and then charged the new entity FIVE HUNDREE DOLLARS ($500.00) per month to assist its development. 84. Counterclaim Plaintiff advanced operating capital to Counterclaim Defendant to commence the entity. 85. Counterclaim Plaintiff also paid for the utilities for the new entity and agreed to charge to the entity a fixed montWy sum of SIXTY-FIVE DOLLARS ($65.00) in lieu of the actual charges would have been approximately ONE HUNDRED TWENTY DOLLARS ($120.00) per month. 86. Because equipment for this industry is extremely costly, it was agreed that Counterclaim Plaintiff would lease the right to use the equipment owned by Triscari Productions, Inc. to the entity at a nominal value of ONE HUNDRED DOLLARS ($100.00) per month. 24 87. Counterclaim Plaintiff was lenient in allowing the full use of his separate business equipment inventory and this equipment was loaned between the two places of business, said places being 55 Central Boulevard and 59 Central Boulevard, CampHill, Pennsylvania. 88. Counterclaim Plaintiff never transferred any interest in the equipment to the Partnership but eventually even dropped the actual rental charge to further assist the cash flow of the new business entity. 89. While the partners negotiated numerous business plan prospects, no formal Partnership agreement was ever signed between them. 90. It was the intention of the parties that the entity was to be incorporated but Counterclaim Defendant never completed this paperwork. 91. The business began functioning prior to the actual finalization of any formal business from being agreed to by the parties. 92. A general partnership was then formed and a fictitious name of"Tri Video Services" filed for the business in March, 2000. 25 93. At all times relevant hereto, Counterclaim Defendant had sole operation and control of the affairs of the new business entity and made all decisions concerning business development, staffing, advertising, material and equipment acquisition. 94. Counterclaim Defendant was in sole control of the day-to-day operations of the business and retained all records thereto. 95. Counterclaim Defendant was solely responsible for business development efforts. 96. Counterclaim Defendant was in sole control of the financial operations of the business and retained all records thereto. 97. Counterclaim Defendant was solely responsible to provide reports and progress report to Counterclaim Plaintiff for the business. 98. The entity began to operate in Spring, 2000, initially upon referrals made by Counterclaim Plaintiff. 99. These referrals included, but were not limited to, jobs for Messiah College and ajob for Everest which totaled approximately TWENTY-THREE THOUSAND DOLLARS ($23,000.00). 26 100. Shortly upon Counterclaim Defendant's execution of the initial jobs, Counterclaim Plaintiff received numerous complaints about the technical quality of the work product being performed by Counterclaim Defendant. 101. Counterclaim Plaintiff attempted to teach Counterclaim Defendant concerning the technological requirements of such a business, which assistance and direction Counterclaim Defendant did not heed. 102. Counterclaim Plaintiff also attempted to work with Counterclaim Defendant to establish a financial accounting and reporting system. 103. Such financial and accounting procedure was critical amongst the parties in that compensation and draws from the partnership were agreed to be dependent on the financial success of the Partnership. 104. Counterclaim Defendant refused to implement any financial accounting procedures suggested by Counterclaim Plaintiff. 105. Instead, Counterclaim Defendant used an accounting procedure suggested and implemented by his wife. 106. Counterclaim Defendant allowed his wife to sign checks and undertake the financial affairs of the Partnership, which action was never approved by Counterclaim Plaintiff. 27 107. The parties agreed to a commission percentage to be paid to Counterclaim Plaintiff for each referral. 108. Counterclaim Defendant made the payment to Counterclaim Plaintiff upon the referral. 109. Counterclaim Plaintiff and Counterclaim Defendant had no specific agreement concerning compensation for Counterclaim Defendant. 110. Counterclaim Defendant was to receive a draw consistent with the cash generated by the company with the mutual agreement ofthe parties. 111. Counterclaim Defendant took monies and paid same to his wife, family and self, without the consent and knowledge of the Counterclaim Plaintiff. 112. Counterclaim Defendant initially denied receipt of any sums. 113. Counterclaim Defendant filed a Federal Tax return indicating profit from the business entity as SIX THOUSAND FIVE HUNDRED DOLLARS ($6,500.00). 114. Counterclaim Defendant now pleads receipt of TWENTY THOUSAND DOLLARS ($20,000.00). 28 115. A review of the financial records provided in discovery indicate that the gross receipts in the business were SEVENTY-SIX THOUSAND SEVENTY-SEVEN DOLLARS and 77/100 ($76,007.77). 116. A review of the financial records provided in discovery indicate that the listed expenses, the legitimacy of many of these expenses which are contested by Counterclaim Plaintiff, in the business were THIRTY-ONE THOUSAND SIX HUNDRED FIFTY-TWO and 26/1 00 ($31,652.26). 117. The net profit of the business was therefore FORTY-FOUR THOUSAND THREE HUNDRED FIFTY-FIVE DOLLARS and 51/100 ($44,355.51). 118. It is further averred that some contested expenses, include, but are not limited to: 1) Payments to Counterclaim Defendant's wife in the amount of FIFTEEN THOUSAND FOUR HUNDRED FORTY DOLLARS ($15,440.00); 2) Payment to Counterclaim Defendant's child in the amount of TWO HUNDRED SIXTY-FIVE DOLLARS ($265.00); 3) Transfers to Counterclaim Defendant's individual name or to cash, the purpose if questioned in the amount ofTEN THOUSAND SEVEN HUNDRED FORTY- ONE DOLLARS ($10,741.00); 4) Payments of past due and overdrawn fees on Partnership Credit Card in the amount of FIVE HUNDRED FIVE DOLLARS ($505.00) on charges ofless than 29 ONE THOUSAND DOLLARS ($1,000.00), which fees could have been avoided with good management; and 5) Payment of personal Chinese food expense and various school expenses in excess of TWO HUNDRED DOLLARS ($200.00). The total amount of unauthorized expense is in excess of TWENTY-SEVEN THOUSAND ONE HUNDRED FIFTY-ONE DOLLARS ($27,151.00) and still subject to audit of the records presented in discovery in this matter. 119. On October 2000, the parties added a third partner said partner being Additional Defendant, Kenneth R. Stephan. 120. Additional Defendant contributed TEN THOUSAND DOLLARS ($10,000.00) to the Partnership. 121. Additional Defendant Stephan agreed to accept five percent (5%) distribution of profits. 122. Counterclaim Plaintiff and Counterclaim Defendant were each to receive forty-seven and one-half percent (47.5%) of the profits of the Partnership. 123. Counterclaim Plaintiff has not received its forty-seven and one-half percent (47.5%) of the net profits. 30 124. Counterclaim Plaintiff should receive TWENTY-ONE THOUSAND SIXTY-EIGHT DOLLARS AND 861100 ($21,068.86). 125. Counterclaim Plaintiff should receive forty-seven and one-half percent (47.5%) of improperly deducted expenses which, to date are TWENTY -SEVEN THOUSAND ONE HUNDRED FIFTY-ONE DOLLARS ($27,151.00), or the sum ofTWEL VE THOUSAND EIGHT HUNDRED NINETY-SIX DOLLARS and 72/100 ($12,896.72). 126. Further, Counterclaim Defendant had approached Counterclaim Plaintiffin April, 2000 and advised that a line of credit in the amount ofTEN THOUSAND DOLLARS ($10,000.00) was necessary to cover the cash flow of the business and for acquisitions of certain equipment. 127. Counterclaim Defendant asserted the loan was required to fill in void between when contracts were executed and materials were purchased and until payment was received. 128. In May, 2000, Counterclaim Defendant worked with Commerce Bank, prepared all papers for the line of credit of TEN THOUSAND ($10,000.00) DOLLARS, and presented these to Counterclaim Plaintiff agreed to sign as partner and personally guarantee the line. 129. Counterclaim Defendant defaulted on the payment of the loan and never advised Counterclaim Plaintiff who was contacted directly about the default by Commerce Bank. 31 130. Counterclaim Plaintiff negotiated a time extension to make payment so that Counterclaim Plaintiff could determine the status of the financial affairs of the Partnership. Counterclaim Defendant refused to provide any such financial information. 131. On or about November 30, 2001, Counterclaim Defendant, in an attempt to mitigate damages in the form of penalties and interest charges and save his credit rating, paid the sum of ELEVEN THOUSAND SEVEN HUNDRED TWENTY-TWO DOLLARS and 841100 ($11,722.84) to Commerce Bank to satisfy the obligation of the Partnership, which obligation was personally guaranteed by Counterclaim Plaintiff and Counterclaim Defendant the security and said rights of Commerce Bank were assigned to Counterclaim Plaintiff. (A copy is attached as Exhibit "A"). 132. Counterclaim Plaintiff is entitled to receive from Counterclaim Defendant one half of all sums duly paid to Commerce Bank or the sum of FIVE THOUSAND EIGHT HUNDRED SIXTY-ONE DOLLARS and 42/100 ($5,861.42), plus interest and costs. 133. Counterclaim Defendant ceased operating the Business sometime in 2001. 134. Counterclaim Defendant failed to properly wind up the affairs of the Partnership. 135. Counterclaim Defendant has retained the value of the Partnership equipment assets, including the camera. 32 136. Counterclaim Plaintiff is entitled to these assets being liquidated and one-half the value of the same being paid to Counterclaim Plaintiff. COUNT I BREACH OF PARNERSHIP AGREEMENT 137. Counterclaim Plaintiff incorporates by reference paragraphs 69 though 136 by reference. 138. Pursuant to the agreement of the parties, as amended by the Partnership Agreement executed with partner and Additional Defendant Stephan, Counterclaim Plaintiff was to receive forty-seven and one-half percent (47.5%) of the net profits of the Partnership. 139. The estimated net profit of the partnership was FORTY-FOUR THOUSAND THREE HUNDRED FIFTY-FIVE DOLLARS and 511100 ($44,355.51). 140. Counterclaim Defendant has retained all of said net profits. 141. Counterclaim Plaintiff is due the sum of TWENTY-ONE THOUSAND SIXTY-EIGHT DOLLARS and 86/100 ($21,068.86). 142. Further, Counterclaim Defendant has improperly taken monies from the Partnership which is in the form of contested expenses and cash withdrawals. 33 143. The amount to date of contested expenses is TWENTY -SEVEN THOUSAND ONE HUNDRED FIFTY-ONE DOLLARS ($27,151.00). 144. These expenses should be added to the net profit of the Partnership and 47.5% of same or TWELVE THOUSAND EIGHT HUNDRED NINETY -SIX DOLLARS and 7211 00 ($12,896.72) should be paid to Counterclaim Plaintiff. 145. The indebtedness of the Partnership due and owing to Commerce Bank as expenses, which should have been paid by Counterclaim Defendant from the partnership assets. 146. Due to his failure to make the payments, Counterclaim Plaintiff incurred a loss in the amount of ELEVEN THOUSAND SEVEN HUNDRED TWENTY-TWO DOLLARS and 84/100 ($11,722.84). 147. Said sums should have been paid in full from the Partnership, plus interest in accordance with 13 Pa. C.S.A. 8331 (3) from November 30, 2001 to date of payment. 148. In the alternative, Counterclaim Plaintiff should receive at least one-half of said sums actually paid by Counterclaim Plaintiff to Commerce Bank for the indebtedness. WHEREFORE, Counterclaim Plaintiff seeks judgment in the amount of FORTY-FIVE THOUSAND SIX HUNDRED EIGHTY-EIGHT DOLLARS and 421100 ($45,688.42) plus interests and costs of suit. 34 COUNT II BREACH OF FIDUCIARY DUTY AND MISAPPROPRIATION OF FUNDS 149. Paragraphs 69 though 148 of Counterclaim Plaintiff s Counterclaim are incorporated herein by reference. 150. As the managing partner of Tri- Video Services, Counterclaim Defendant was to effectuate the daily management of the Partnership business and to be solely responsible for the prudent fmancial management of the Partnership, including safeguard of its assets. 151. Counterclaim Defendant failed to meet this obligation and misappropriated and mishandled the business affairs of the Partnership as set for the paragraphs 99, 100, 105, 106,111, 117 and 188. 152. Counterclaim Defendant owed a fiduciary duty to the partnership and to Counterclaim Plaintiff, which it breached through misapplication and misappropriation of business opportunities and business assets. 153. As a direct and proximate result of Counterclaim Defendant's actions, Counterclaim Plaintiff has suffered harm and financial loss. 35 WHEREFORE, Counterclaim Plaintiff requests judgment in his favor in the amount of FORTY-FIVE THOUSAND SIX HUNDRED EIGHTY-EIGHT DOLLARS and 421100 ($45,688.42), plus interest and costs of suit, as well as a full accounting of funds spent by Counterclaim Defendant while Counterclaim Defendant was operating the Partnership and an order requiring Counterclaim Defendant to make Plaintiff whole for any and all sums misappropriated by Counterclaim Defendant. COUNT III ACTION FOR POSSESSION OF PROPERTY 154. Paragraphs 69 though 153 are incorporated herein by reference. 155. Counterclaim Defendant has sole possession and control of equipment and assets owned by the Partnership, as well as certain equipment owned by Counterclaim Plaintiff. 156. Any right of possession of Partnership assets has been assigned to Counterclaim Plaintiff as a result of the security interest in same received from Commerce Bank which is attached hereto as Exhibit "A." 157. Counterclaim Defendant has no present right to possession of the property. 36 WHEREFORE, Counterclaim Plaintiff requests this Court to enter an order directing Defendant to immediately surrender possession of the property, all assets, cash, receivables, contract rights, records to the Counterclaim Plaintiff. Respectfully submitted, DATE: June 10,2002 arbara Sumple-Sullivan, Esquire 549 Bridge Street New Cumberland, P A 17070-1931 (717) 774-1445 Supreme Court I.D. 32317 Attorney for Defendant Triscari 37 EXHIBIT "A" . . . ASSIGNMENT AGREEMENT THIS ASSIGNMENT AGREEMENT, made this -3tl day of November, 2001, by and between COMMERCE BANKIHARRISBURG, N.A., a National Banking Association (hereinafter called "Bank"), and SEBASTIAN G. TRISCARI ("Assignee"), WITNESSETH: WHEREAS, Triscari Video Services, a Pennsylvania General Partnership, entered into a Loan Agreement, Promissory Note, Security Agreement and Guarantees (Sebastian G. Triscari and Thomas A. Speck, Guarantors); and WHEREAS, the loan has gone into default such that there is a current outstanding balance of$10,062.50 inprincipal, $195.72 in interest, $964.62 in late fees and $500.00 in legal fees, for a total amount of$II,722.84; and WHEREAS, Assignee desires to purchase the loan obligation from Bank and have all right, title and interest in said loan assigned to Assignee in consideration for the $11,722.84. NOW THEREFORE, in consideration of the premises above which are herein incorporated by reference and the payment of$II,722.84, it is hereby agreed as follows: 1. Bank hereby assigns to Assignee all right, title and interest in the said Promissory Note, Security Agreements and other loan documents as set forth above including all Guarantees to Assignee. 2. The Bank hereby releases Assignee from any and all liabilities or other responsibilities under the above-described loan. . . .' 3. Assignee hereby releases Bank from any and all liabilities under the loan documents or any other causes of action that Assignee may have against the Bank as it relates to the loan transactions described herein. 4. Assignee hereby agrees to indemnify and hold Bank harmless from any and all claims, liabilities, causes of actions of any nature whatsoever, including reasonable attorney's fees, as it may relate to the loan transaction or to any collection process which Assignee may have or result from as a result of Assignee attempting to collect or otherwise enforce the loan documents against the co-guarantor, Thomas A. Speck. 5. This Agreement shall be construed under the laws of the Commonwealth of Pennsylvania. 6. This Agreement shall be binding on the heirs, executor and assigns of all parties hereto. 7. This Agreement shall constitute the entire agreement between the parties, all prior agreements being incorporated herein, and shall not be modified unless in writing signed by both parties. IN WITNESS WHEREOF, the parties have set their hands and seals the day first above written. COMMERCE BANK/HARRISBURG, N.A. By !~~~ --' Sebastian G. Triscari ::::1 ~ PROMISSORY. NOTE V' Borrower: Trt_ V~ ServIGM (11N: 251853479) 55-B Centr.. Blvd I Camp Hili, PA 17011 Lender: Commerce BankIH.......burg. NaUonal Auocilltlon Main Offlce/COmrnwcll' CoIit Ceo'" P.O. Box 1&" 100 Senate Avenue Comp HII~ PA 111101-8599 if /Cl < Prlnclpel Amount: $10,000.00 Inltlel Rete: 9.250% Oete 01 Note: Mey 4, 2000G PROMISE TO PAY. Tra.carl Video ServIceI: (.Borrow...) proml.. to fMIY to Commerce BankMarrllburg, NatloMlI Alaoclatlon (.Lend....). or ;'-1 ordw, In lawful money of the United States of America, on demand, the prlnclp81 amount of Ten Thousand & 001100 Dollarl ($10,000.00) or 80 ,..0 much .. fMY be outstllndlng, together with In__t on the unpaid outatandlng prlnclplll balance of eKh lKIYance. InterNt ahan be calculated V~ lnIm "'" _01 """" __unUI_t 01 """"_nee. PAYMENT. Borrower will PQ' thll IoIIn Immediately upon Lender'l demand. In addlUon, Borrow.- will pay regular monthly pIIyments of all accrued unpaid In_eat due al of each payment date, beginning June 4, 2000, with allaub8equent tntereIt payments to be due on the .ame q.J day of each month after that. The annual Interest rate for this Note Is oomputed on a 3651380 bole; that is, by applying the ratio of the annual Interest c::Ii rate over . year 01 360 days, m~led by "'" outstanding prlnc:ipal batan<:e, multiplied by \fle ootuaI number 01 days \fle prlnc:ipal balance Is 0' outstanding. Borrower wHl pay Lender at Lender's address shown above or at such other pface as Lender may designBte In writing. Unless otherwise agreed Of requlred by appUcable law, payments will be applied flfsl to accrued mpald Interest, then to principal. and any remaining amount 10 any 9-"" unpaid collection costs and late charges. VARIABLE INTEREST RATE. The Interest rate on this Note ts subject 10 change from ttme to time based on changes In an Independent Index whtch Is tha Tho hIglast prWna rate puIlIlshad in \fle WaI S1raat JoumaI and in affact a. 01 \fle fl<st day 01 each bllIing cycle prior to \fle rata chango data (tha .Index.). The Index Is not necessarly the lowest rate charged by Lender on Its loans. "the Index becomes unavalabte during the tann of this loan, Lender may designate a subetltutelndex after notlce to Borrower. Lender will tell Borrower the current Index rate upon Borrower's request. Borrower understands that Lender may make loans based on other rates as well. The intef'est rate change wNI not occur more often than each day. The Index currentty II: 1.000% per ennum. The In...... rate to be applied to the unpaid principal bllllnce of thll Note will be at a rate of 0.250 percentage polnta over the Index, ....ultlng In an !nIUel rate of 1.250% per annum. NOTICE: Under no circumstances will the Interest rate on this Note be more than the maxlmt.m rate allowed by applicable law, PREPAYMENT. Borrower may pay 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 Interesl Rather, they wNI reduce the principal b81ance due, DEFAULT. Bo<rower wi! ba in dalault W any 01 \fle foIiowirig happan.: (a) Borrowar faU. to maka any paymant whan due, (b) Borrowa' bfaaks any promise Borrowef has made to Lender, or Borrower lals to comply with or to perform when due any other lann, obligation, covenant, or condition contained In thts Note or any agreement related to this Note, or In any other agreement or IoBn Borrower has with Lender. (c) Borrower defautts under any loan, exlenskln of credit, securtly aQreement, purchase Of sales agreement, or any other agreement, In favor 01 any other creditor Of person that may materially affect any of Borrower's property or Borrower's ability to repay this Note or perform Borrower's obligations under INs Note Of any of the Related Documents. (d) Any representallon or statement made or furnished to Lender by Borrower or on Borrower's behalf m false or mlsJeadlng In any material respecl either now or at the lime made or furnished. (e) Any partner dies or any of the partners or Borrower becomes insotvent. a receiver Is appointed for any part of Borrower's property, Borrower makes an assignment for the benefit of creditors, or any proceeding Is commenced either by Borrower or against Borrower lJlder any bankruptcy or Insdvency laws, (I) Any creditor tries to take any of Borrower's property on or In which lender has a IkHl or security lnIerest. This Includes II gamlstwnent of any of Borrower's accounts with Lender. (g) Any of the events described In this default section occurs with respect to any general partner of Borrower or any guarantor of thts Note. (h) A material adverse change occurs In Borrower's r_ coodltlon, '" Landai' balievoa "'" prospact 01 paymant '" partormance 01 the ,-.... Is Impalrad. (I) Landar in good faith dooms ilsalf Insecure. If any default, other than a default In payment, Is curable and If Borrower has not been given a notice of a breach of the same provision of this Note within the preceding twetve (12) months, II may be cured (and no event of default wi have occurred) if Borrower, after receiving written noIlce from lender demandfng cure of such default (a) cures the defautt wlthln ten (10) days; or (b) If the cure requires more than ten (10) days, knmedIately Initiates steps which Lender deems In Lender's sole discretion to be sufflclent: to cure the default and thereafter continues and completes all reasonable and necessary stepI aulflctent to produce compliance as soon as reasonably practical, LENDER'S RIGHTS. Upon default, Lender may, after gMng such notices as required by appItcable law, declare the entire unpaid prlnclpal balance on this Note and all accrued unpaid Interest hTmedlately due, and then BorrOWer wHl pay that amount. Upon default, Including faMure to pay upon tlnal maturtly, Lender, 8t 118 option, may also, If permltted under applicable law, Increase the varlable Interest rate on this Note to 2.250 percentage JX>ints over the Index. The Interest rate wi not exceed the maximum rate permltted by eppItcable law. Lender may hire or pay someone else to help collect thJs Note It Borrower does not pay. Borrower also wi pay Lender that amount Thls Includes, subject to any limits under applicable law, Lender's attorneys' fees and Lender's legal expenses whether or not there Is a IawsulI, including attorneys' fees and legal expenses tor bankruptcy proceedings (including efforts to modify or vacate any automatic stay or iriunctlon), appeals, and any anticipated post.JLKVnent conectlon servlces. It not prohillitad by applicable law, Borrowar also will pay any court cos1s, in addition to aU othar sums pIOVldad by taw. If Judgment ia entered In connaclion with this Note. ilIerest will conttnue to accrue on this Note after Judgment at the Interest rate applicable to lilts Note at the lime judgment Is entered. Thl. Note ha, beM1 dellvwed to Lender and accepted by Lender In the Commonwaatth of Pennlylvanlll. If there I' a lawlult, Borrower agrees upon Lender', requ..t to .ubmlt to the lurlldlcUon of the cou.... of Cumberland County, the Commonw.1th of Pennlyfvllnlll. Lender and Borrower hereby waive the right to any Jury trial In .ny action, proceeding, or counterclaim brought by either Lender or Borrow<< agalnlt the _, Thto Note 011.11 be ~ by.nd conolrulld In _nee wl1h "'" _ 01 "'" Commonwoal1h 01 Pann.ylvonto, DISHONORED ITEM FEE. Borrower will pay a fee to Lender of $10.00 If Borrower makes a payment on Borrower's loan and the check or preauthorized charge with which Borrower pays Is Ia~ dishonored. RIGHT OF SETOFF. Borrowef ~ to Lender a contractual security Interest in, and hereby assigns, conveys, delivers, pledges, and transfers to Lender all Borrower"s 1'iSt1t, tide and Interest In end to, Borrower's eocounts with Lender (whether checking, savings, or some other account), Including without ,_tton aI ~ haId joinIIYIl"'th somaona _ and all accounts Bo<rower may opan in th~ future, ""eluding howavar aU IRA and Keogh aCCOUllS, and all trust accounts tor which the grant of a security Interest WOIJd be prohibited by law. Borrower authorizes Lender, to the extent permltted by appIlcabte law, to charge or setoff aU SOO'l9 owing on this NoIe against any and all such accounts. COLLATERAL ThIs Note Is S8Curft"J by " 1st lien priority security tnt9rHt In all buslngss 3SSotc of the Ccrrcwer n3 more fully set forth In th~ Comnerclal Security Agreement of even date herewith and to be perfected by UCC-1 Flnanclng Statement. Personal guarantees of Sebasllan G. Triscarl and Thomas A. Speck. PROPERTY INSURANCE. Borrower understands that Borrower Is required to obtaillnsurance tor the collateral securing this Note. Further Information concerning this requifement Is 8et forth In the Security Agreement and in the Agreement to PnMde Insurance, all the terms and conditions of whtch are hereby Incorporated and made a part of thts Note. UNE OF CREDIT. This Nota evldancas . ravoIvIng Una of credit. _ane.. undar this Note may ba raquasted orally by Borrowar '" by an au1hor~ed parson. L..- may. but naad not, raqulra thel all ",a1 ,aquasls ba conflm1ad in writing. Aft communications, instructions, '" dIractIons by laIap1lona or otherwise to Lender are to be directed to Lender's office shown above. The following party or parties are authorized to request advances under the line of credit untU Lender receives from Borrower at Lender's address shown above written notice of revocation of their authority: Sebaltlan G. Trlscarl and Thom.' A. Speck. Borrower agrees to be liable for an sums e/Iher: (8) advanced In accordance wJth the Instructions of an authOrIzed person Of (b) credited to any of Borrower"s accounts wtth Lender. The oopald principal balance owing on this Note at any time may be evidenced by. endorsements on this Note or by Lender"s Internal records, lncIudtng dally computer prlnt-outs. Lender wHI have no obligation to advance funds under Ihis Note If: (a) Borrower or any guarantor Is In defaUt tnder 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 cesses doing business or Is Insolvent; (c) any guarantor seeks, dalms or otherwise attemp18 to 1ImII, modtfy 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 tor purposes other than those authorized by Lender; or (8) Lender In good faith deeri'Is IIseff Insecure under this Note or any other agreement between Lender and Borrower. ANNUAL PAYOUT PERIOD. Borrower shall be required to reduce the outstanding prilclpal balance under this Line of Credit 10 zero tor a thirty (30) consecutive day period durlng each year of the Une of Credll. o --'-' VI 05-04-2000. Loan No 2862095 PROMISSORY NOTE (Continued) Page 2 GENERAL PROVISIONS, This Note Is payable on demend, The Inclusion of spaclllc default provision. or rI\11l8 of LeOOM shell not preclude Lender's right to deele.. payment of Ihls Note on Its demond, Lender may delay or forgo enforcing eny of n. rlghl8 or remedies unde< Ihls Note wllhoot losing them. Borrower and any other person who signs, guarantees Of endorses tht8 Note, to the extent allowed by taw. waive presentment, demand for payment, protest and notice of dt9honor. Upcn any ch8nge In the tenns of this Note, and untess otherwise expressly stated In writing, no party who signs this Note, whether as maker, guarantor. accoomodatlon maker or endorser. shall be released from liability. All such parties agree that Lender may renew or extend (repe&tedIy and lot any length of time) this loB", or release any party, partner, or guarantor or coIlat8f81; or 1ql8lr, faH to realize upon or perfect lender's security Interes\ In the coItateral; and take any other action deemed necessary by Lender without the consent of or notice to anyone. All such parties also BQf88 that Lender may modify this loan without the consent of or notice to anyone other than the party with whom the modification Is made. "any portton of tilts Note Is for any reason determined to be unenforceable, It wi' not affect the enforceability of any other provisions of Ihls Note, CONFESSION OF JUDGMENT. BORROWER HEREBY IRREVOCABLY AUTHORIZES AND EMPOWERS ANY ATTORNEY OR THE PROTHONOTARY OR CLERK OF ANY COURT IN THE COMMONWEALTH OF PENNSYLVANIA, OR ELSEWHERE, TO APPEAR AT ANY TIME FOR BORROWER AFTER A DEFAULT UNDER THIS NOTE, AND WITH OR WITHOUT COMPLAINT FILED, AS OF ANY TERM, CONFESS OR ENTER JUDGMENT AGAINST BORROWER FOR THE ENTIRE PRINCIPAL BALANCE OF THIS NOTE, ALL ACCRUED INTEREST, LATE CHARGES, AND ANY AND ALL AMOUNTS EXPENDED OR ADVANCED BY LENDER RElATING TO ANY COLLATERAL SECURING THIS NOTE TOGETHER WITH INTEREST ON SUCH AMOUNTS, TOGETHER WITH COSTS OF SUIT, AND AN ATTORNEY'S COMMISSION OF TEN PERCENT (10%) OF THE UNPAID PRINCIPAL BAlANCE AND ACCRUED INTEREST FOR COLLECTION, BUT IN ANY EVENT NQT LESS THAN FIVE HUNDRED DOLLARS ($500) ON WHICH JUDGMENT OR JUDGMENTS ONE OR MORE EXECUTIONS MAY ISSUE IMMEDIATELY; AND FOR SO DOING, THIS NOTE OR A COPY OF THIS NOTE VERIFIED BY AFFIDAVIT SHALL BE SUFFICIENT WARRANT, THE AUTHORITY GRANTED IN THIS NOTE TO CONFESS JUDGMENT AGAINST BORROWER SHALL NOT BE EXHAUSTED BY ANY EXERCISE OF THAT AUTHORITY, BUT SHALL CONTINUE FROM TIME TO TIME AND AT ALL TIMES UNTIL PAVMENT IN FULL OF ALL AMOUNTS DUE UNDER THIS NOTE, BORROWER HEREBY WAIVES ANY RIGHT BORROWER MAY HAVE TO NOTICE OR TO A HEARING IN CONNECTION WITH ANY SUCH CONFESSION OF JUDGMENT, EXCEPT ANY NOTICE AND/OR HEARING REQUIRED UNDER APPLICABLE LAW WITH RESPECT TO EXECUTION OF THE JUDGMENT, AND STATES THAT EITHER A REPRESENTATIVE OF LENDER SPECIFICALLY CALLED THIS CONFESSION OF JUDGMENT PROVISION TO BORROWER'S ATTENTION OR BORROWER HAS BEEN REPRESENTED BY INDEPENDENT LEGAL COUNSEL 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 AND ACKNOWLEDGES RECEIPT OF A COMPLETED COPV OF THE NOTE. THIS NOTE HAS BEEN SIGNED AND SEALED BV THE UNDERSIGNED. "':'~''''::~~:l':;~~:l~~?~mi::~:::~:~:: F'WWf (SEAL) BY:i;~~r,~,~L'i ThO.... A. poCk, P. ;Ii (SEAL) :-~_~.p!: 01: Wi...... ~. X -... V.ubI. R... Une of er.dII. lASER PRO. Reg. U.S. Pat.' T.M. on., Vet. 3.281: (e)2000CFI ProSIIMcM,Inc. A1111ghl11 ~.IPA-D20 E3.2105TR1OO.LN C20.OVLI I. "".'" ~.. ..-..:- . . , PROMISSORY NOTE MODIFICATION AGREEMENT THIS PROMISSORY NOTE MODIFICATION AGREEMENT, made and entered into as of this day of July, 2001, by and between COMMERCE BANK/ HARRISBURG, NATIONAL ASSOCIATION, a national banking association (hereinafter called "Bank"), having its principal place of business at 100 Senate Avenue, P. O. Box 8599, Camp Hill, Pennsylvania 17001-8599, and Triscari Video Services (hereinafter called uBorrower"). WITNESSETH: )..; "'(l ~ t1 'l'l WHEREAS, Borrower executed and delivered to Bank a Promissory Note") VI dated May 4, 2000, in the original amount of $10,000 which evidences a loan by the Bank to the Borrower; and WHEREAS, the Bank and Borrower mutually agree to modify the terms of the Note to change the Maturity Date, as hereinafter provided. NOW THEREFORE, for value received and in consideration of the mutual covenants and agreements hereinafter contained and intending to be legally bound hereby, Bank and Borrower covenant and agree to amend and modify the Note heretofore described as follows: 1. The Note and all Loan Documents related thereto shall be amended to provide that effective July 31, 2001, the Note will be extended to August 30, 2001. 2. Except to the extent specifically set forth herein, all of the terms, conditions, covenants and agreements contained in the Note shall remain in full force and effect. Borrower hereby ratifies and affirms each and every term and condition, obligation, and covenant of Borrower under the Note in every respect and shall pay and discharge the indebtedness evidenced . by the Note in accordance with its terms as modified herein. This Modification shall not altar, diminish, or otherwise affect the lien on the business assets or the collateral therein described. IN WITNESS WHEREOF, the parties hereto have executed this Agreement the day and year first above written. 1 .. . . . ATTES (Vice l1tlf</l~ ~~ W~tness fJulM-l :I ?b~ Witness . . , COMMERCE BANK/HARRISBURG, N. A. BY: c~~~.t~inger,ViCe President Borrower: Triscari Video Services as 2 . COMMERCIAL SECURITY AGREEMENT References In thB shadBd Bf88 arB for lBndBr'S use only and do not IImtt thB applicability of this document to any particular loan or Item. Borrower: Trlscarl VIdeo Services (TIN: 251853479) 55-B Central Blvd Camp Hili, PA 17011 Lender: Commerce BanklHarrlsburg, National Association Main Otllce/Commerclal Cost Center P.O. Box 8599 100 Senate Avenue Camp Hili, PA 17001-8599 THIS COMMERCIAL SECURITY AGREEMENT Is entBred Into betwMn Trlscarl VIdeo Services (referred to below as 'Grantor'); and Commerce BankIHarrlsburg, National Association (referred to below as 'Lender'). For valuable consideration, Grantor grants to Lender a security Interest In the Collateral to secure the IndebtBdn.. and ag~ that Lender shall have the rights statBd In this AgrMment with respect to the Collateral, In addition to all other rights which Lender may have by law. DEFlNmONS. ThB following words shall have the following meanings when usBd in this Agreement TBrms not OtherwisB definBd in this Agreement shall havB the meanings attributBd to such terms in the Uniform CommarciBI Code, All references to dollar amounts shall mBan amounts in lawful money of thB UnilBd States of America, Agl'Ml118l'lt The word "AgreemBnf maans this CommBrcial Security Agreement, as this Commercial Security Agreement may be amandBd or modlflBd from tima to limB, together with all exhibits and schBdulBS attachBd to this Commercial Security Agreemant from lime to limB. Collateral. The word "CollatBraI: mBBns the following described property of Grantor, whethBr now ownBd or hBrBafler .acquirBd, whBthBr now BXisting or herBBfler arising, and whBrever IocatBd: All Inventory, chattel paper, accounts, equipment, general Intangibles and fixtures In addition, the word 'Collateral" includes all the following, whether now ownBd or herBBfler acqulrBd, WhethBr now existing or hBrBBflBr arising, and wherBver located: (a) All attachments, accessions, accessories, tools, parts, supplies, increases, and additions to and all replacements of and substitutions for any property described above, (b) All products and produce of any of the property described in this Collateral section. (c) All accounts, gBneral intangibles, Instruments, rents, monies, payments, and all other rights, arising out of a sale, lease, or othBr disposition of any of the property described in this Collateral section. (d) All proceBds (including insurance proceeds) from the sale, destruction, loss, or other disposition of any of the property described in this Collateral section. (e) All records and data relating to any of the property describBd in this Collateral section, whethBr in the form of a writing, photograph, microfilm, mlcrofichB, or electronic mBdia, togethBr with all of Gl'lIntor's right, title, and intBrest in and to all computer softwarB requirBd to utilize, create, maintain, and process any such records or data on electronic media. Event of Default The words "Event of Defaulr mean and include without limitation any of thB Events of Default set forth below in the section titlBd 'Events of DBfault." Grantor. The word "Grantor" means Triscari VidBO Services, its successors and assigns. Guarantor. ThB word "Guarantor" means and includes without limitation each and all of the guarantors, sureties, and accommodation parties in connection with the IndebtBdness, IndebtBdn... The word 'Indebtedness' means the indebtBdnBss evidencBd by the NotB, including all principal and interest, together with all othBr IndebtBdness and costs and expenses for which Grantor is responsible under this Agreement or under any of the RelatBd Documents, In addition, thB word "IndebtBdness" includes all other obligations, debts and liabilities, plus intBrest thBreon, of Grantor, or anyone or more of them, to Lander, as well as all CIBims by LBnder against Grantor, or anyone or more of them, whether Bxisting now or lalBr; whBthBr they are voluntary or involuntary, due or not due, direct or indirect, absolute or contingant, IlquldatBd or unllquidatBd; whether Grantor may be liable individually or jointiy with others; whether Grantor may be obligated as guarantor, surBty, Bccommodation party or othBrwise; whethBr recovBry upon such IndBbtedness may be or herBBfler may becomB barrBd by any statute of limitations; and whether such indebtBdness may be or herBBfler may become othBrwisB unenforceable. Lender. The word "Lender" means CommBrce BanklHarrisburg, National Association, its successors and assigns. Note. The word "Note' means the note or crBdtt agreement datBd May 4, 2000, in the principal amount of $10,000,00 from Triscari VidBO Services to Lender, together with all renBwals of, extensions of, modifications of, refinancings of, consolidBtions of and substttutions for the note or crBdtt Bgreement. RelatBd Documents. The words "RelatBd Documents' mean and include without limitation all promissory notes, crBdit agreements, loan agreements, environmental agreements, guaranties, security agreements, mortgages, deeds of trust, and all other instruments, agreements and documents, whether now or herBBfler existing, executBd in connection with the IndebtBdness. RIGHT OF SETOFF. Grantor hereby grants Lender a contractual security interest in and hereby assigns, conveys, delivers, plBdges, and transfsrs all of Grantor's right, title and interest in and to Grantor's accounts with Lender (whether checking, savings, or some other account), including all BCCOUnts held jointiy with someone else and all accounts Grantor may open in the future, excluding, however, all IRA and Keogh accounts, and all trust BCCOUnts for which the grant of a security interest would bB prohibited by law. Grantor authorizes Lender, to thB extent permitted by applicable law, to charge or setoff alllndebtBdness against any and all such accounts. OBUGATlONS OF GRANTOR. Grantor warrants and covenants to Lender as follows: Perfection of Security Interest. Grantor agrees to execute such financing statements and to take whatever other actions are requestBd by Lender to PBrfect and continue LendBr'S security intBl'est in the Collateral. Upon request of Lender, Grantor will deliver to Lander any and all of the documents evidencing or constituting the Collateral, and Grantor will note Lender's interest upon any and all chattel paper if not delivBl'Bd to Lender for possession by Lender, Grantor hereby appoints Lender as its irrevocable attomey-in-fact for the purpose of executing any documents necessary to perfect or to continue thB security Interest granted In this Agreement. Lander may at any lime. and without further authorization from Grantor, file a carbon, photogl'llphic or other reproduction of any financing statement or of this Agreement for use as B 05-04-2000 Loan No 2862095 COMMERCIAL SECURITY AGREEMENT (Continued) Page 2 financing slatement. Grantor will reimburse LBnder for all expenses for the perfection and the continuation of the perfBCtion of Lender's security interest in thB Collateral. Grantor promptly will notify Lender beforB any change in Grantor's narns including any_ change to the assulTlBd business names of Grantor. Thll II a continuing Security Agreement and wlll contlnuB In effect even though all or any part of the IndBbtednBSI II paid In full and even though for a period of time Grantor may not be Indebted to Lender. No Violation. The execution and delivery of this Agreement will not violate any law or agreement govemlng Grantor or to which Grantor Is a perty, and its pertnership agreement does not prohibn any term or condnion of this Agreement. Enforceablllty of Collateral. To the extent the Collateral consists of accounts, chattel peper, or general Intangibles, the Collateral is enforceable in accordance with its terms, is genuine, and complies with applicable laws concBming form, content and mannBr of preperatlon and execution, and all persons appearing to be obligated on the Collateral have authority and capacity to contract and are in fact obligated as they appear to be on the Collateral, At the time any account becomes subject to a security interest in favor of LendBr, the account shall be a good and valid account representing an undisputed, bona fide indebtedness incurred by the account debtor, for rnsrchandise held subject to delivBry instructions or theretofore shipped or delivered pursuant to a contract of sale, or for services theretoforB performed by Grantor with or for the account debtor; therB shall be no setoffs or counterclaims against any such account; and no agreement undBr which any deductions or discounts may be clailTlBd shall have been made with the account debtor except those disclosed to Lender in writing, location of thB Collateral. Grantor, upon request of Lender, will delivBr to Lender in form satisfactory to Lender B schedulB of rBBI properties and Collateral locations rBlBting to Grantor's operations, including without limitation the following: (a) all real property owned or being purchased by Grantor; (b) all real property being rBnted or IBBsed by Grantor; (c) all storage facilnies owned, rented, leasBd, or being used by Grantor; and (d) all othBr properties where Collateral is or may be locatBd, Except in the ordinary course of ns business, Grantor shall not remove the Collateral from its existing locations without the prior written consent of Lender, RBI1loval of Collateral. Grantor shall keep the Collateral (or to the Bxtent the Collateral consists of intangible property such as accounts, the records conceming the Collateral) at Grantor's address shown above, or Bt such other locations as are acceplable to LBnder. Except in the ordinary course of its business, including the sales of inventory, Grantor shall not rBmove the Collateral from its existing locations without the prior written consent of Lender. To the extent that the Collateral consists of vehicles, or othBr titlBd property, Grantor shall not lake or permn any action which would require application for certificates of titlB for the vehicles outside the Commonwealth of Pennsylvania, without the prior written consent of Lender. Transactlonl Involving Collateral. Except for inventory sold or accounts collected in the ordinary course of Grantor's business, Grantor shall not sBII, offer to sell, or othBrwise transfer or dispose of thB Collateral. WhilB Grantor is not in dBfault under this Agreernsnt, Grantor may sBlI inventory, but only in the ordinary coursB of its business and only to bUYBrs who qualify as B buyer in thB ordinary course of business, A salB in the ordinary course of Grantor's business dOes not include a transfer in pertial or tOtal satisfaction of a dBbt or any bulk sale, Grantor shall not pledge, mortgage, encumber or otherwise permit the Collateral to be subject to any lien, security interest, encumbrancB, or charge, other than the security interest providBd for in this Agreement, without the prior written consent of LendBr. This includes security intBrests Bven II junior in right to the security interests grantBd under this Agreement. Unless waived by Lender, all proceeds from any disposition of the CoIlatBral (for whatBver rBBson) shall be hBld in trust for LBnder and shall not be commingled with any othBr funds; providBd however, this requirement shall not constitute consent by Lender to any sale or othBr disposition, Upon recBlpt, Grantor shall immediatBly dBliver any such proceeds to LendBr, Title. Grantor represents and warrants to LendBr that it holds good and marketablB title to thB Collateral, free and clear of all liBns and encumbrances Bxcept for thB lien of this Agreernsnt. No financing slatement covering any of the Collateral is on file in any public office othBr than those which reflect thB security interest crBBted by this Agreernsnt or to which LendBr has specifically consented, Grantor shall defend Lender's rights in the Collateral against the claims and demands of all other persons, Collateral SchedulBS and locations. As often as Lender shall require, and insofar as- the CoIlatBral consists of accounts and general intangibles, Grantor shall deliver to Lender schBdules of such Collateral, including such information as LBndBr may require, including without limitation names and addresses of account debtors and' agings of accounts and general intangibles. Insofar as thB Collateral consists of inventory and equipment, Grantor shall dBlivBr to Lender, as often as Lender shall require, such lists, descriptions, and designations of such Collateral as Lender may require to identify thB nature, extent, and location of such CollatBral. Such information shall be submitted for Grantor and BBch of its subsidiaries or related companies, Maintenance and Inlpectlon of Collateral. Grantor shall maintain all tangiblB Collateral in good condition and repair. Grantor will not commit or permit damagB to or destruction of the Collateral or any pert of the Collateral. Lender and its designatBd represBnlatives and agents shall haVB thB right at all rBBsonablB times to Bxamine, inspect, and audn the Collateral wherevBr located. Grantor shall immediately notify Lender of all cases involving the retum, rejection, repossession, loss or damage of or to any Collateral; of Bny request for crBdit or adjustment or of any othBr dispute Brlsing with respect to the Collateral; and generally of all happenings and BVents affBCting the Collateral or thB vBlue or the amount of thB CoIlBtBral. TaxBS, Aa_Imenll and Llenl. Grantor will pey when due all taxes, assessments and liens upon the CoIlBteral, its USB or operlItIon, upon this Agreement, upon Bny promissory note or notes Bvidencing thB IndBbtedness, or upon any of thB other RBlated Docurnsnts. Grantor rtlIIy withhold any such peyment or may Blect to contest any lien II Grantor is in good fBith conducting an appropriate proceeding to contest the obligation to pey and so long as Lender's interest in thB Collateral is not jeopardized in Lender's sole opinion. If the Collateral is subjected to a lien which is not discharged within fifteen (15) days, Grantor shall deposit with Lender cash, a sufficient corporate surety bond or other security satisfactory to Lender in an amount adequatB to provide for thB discharge of the lien plus any intBrest, costs, attorneys' fees or other charges thet could 8CCruB as a result of foreclosurB or salB of thB CoIlBtBral, In any contest Grantor shall dBfBnd itsett and Lender and shall satisfy Bny final adverse judgment bBforB enforcBrnBnt Bgainst thB Collateral. Grantor shall name Lender BS an additional obligee under any surety bond fumishBd in the contest proceedings. Compliance WIth Governmental Requirements. Grantor shall comply promptly with all laws, ordinances, rules and regulations 01 all govemmental authorities, now or herBBfter in Bffect, applicable to the ownership, production, disposition, or use of thB Collateral. Grantor may contest in good faith any such law, ordinance or regulation Bnd withhold compliance during any proceeding, including appropriate appeals, so long as LendBr's interest in the Collateral, In Lender's opinion, is not jeopardized. Hazardoua Substances. Grantor represents and warrants that thB CoIlateraJ nevBr has been, and never will be SO long as this ~ rernBins a lien on thB Collateral, usBd for thB generBtIon, manufacturB, storagB, transportation, trBBtment, disposal, rBlBBS8 or thrBBtened rBlBBS8 of any hazardous waste or substance, as those terms BrB dBfined In thB CornprBhenslvB Environmental Response, Compensation, and UallIIIty Act of 1980, as Bmended, 42 U.S.C. SectIon 9601, et seq. ("CERCLAj, the Superfund Amendments and RBButhorizatlon Act of 1986, Pub, L No. 99-499 ("SARAj, the Hazardous Materials Transportation Act, 49 U,S,C. Section 1801, et SBq., the Resource ConsBlVatlon and Recovery Act, 42 U.S.C. SectIon 6901, et SBq., or other applicablB state or FBderallaws, rules, or regulations adopted pursuant to any of thB foregoing. The terms "hazardous waste' and "hazardous substance" shall also Include, without limitation, petroIsum and petrolBum by-products or any f1action thBl'Bof . anct asbestos, , The representations and WBrrBntIes conteInec! he[eIn, arB ~ed on Grantor's due diligence In inl(estigati(19 thB CoIlateraJ for hazardous wastes and substances. Grantor hereby (a) releases and waives any future claims against LendBr for Indemnltx or contrll?Ution In the BVent Grantor becomes liable for cleanup or other costs undBr any such laws, and (b) agrees to indemnify and hold harmless Lender against ". I ~ 05-~2000 Loan No. 2862095 COMMERCIAL SECURITY AGREEMENT " .. . (Continued) Page 3 BIlY and BlI claims and losses resulting from a breach of this provision of this Agreement. This obligation to IndBlTlnify shall survive the paymBllt of thB IndBbtedness and the satisfaction of this AgreemBnt. Maintenance of Casualty Insurance. Grantor shall procure and maintain all risks insurance, Including without limitation firB, thBft and liabiity coveragB togethBr with such other insurence as LBnder may requirB with respect to thB CoIlaterBl, in fonn, amounts, COVBreges and basis reasonably accllplable to Lender and issued by a company or companies reasonably accBptabtB to LBnder. Grantor, upon request of lBnder, will dBliver to Lander from time to time thB policies or certificates of insurancB in fonn satisfactory to lBnder, including stipulations that coverages will not be cancBlled or diminished without at least thirty (30) days' prior writtan notice to LandBr and not Including BIlY disclaimer of thB insurer's liability for failurB to give such a notice. Each insurance policy Blso shall Include an andorsement providing that coveregB in favor of Lander will not be impaired In any way by any act, omission or dafault of Grantor or any other person. In connBCtion with BlI policies COVBring assets in which lBndBr holds or is offered a security intBrest, Grantor will provide Lander with such loss payable or othBr BndOrsements as lBnder may require, If Grantor at any time fails to obtain or maintain any insurancB as required under this Agreement, Lander may (but shall not be obligated to) obtain such insurancB as LBnder deems appropriate, including n tt so chooses .single IntBrest Insurance; which will cover only lBnder's interest in thB CoIlaterel. Application of Insurance Proceeds. Grantor shall promptly notify Lender of any loss or damagB to thB CoIlaterBl, Lender may makB proal of loss n Grantor fails to do so within fifleen (15) days of the casualty, All proceeds of any inSUranCB on the Collateral, Including accrued proceeds thereon, shall be held by lBnder as part of the Collateral. If Lender consants to repair or r&placBlTlent of the damaged or destroyed CoIIBterBl, Lander shall, upon satisfactory proof of expanditure, payor reimburse Grantor from the proceeds for thB reasonablB cost of repair or restoretlon. If Lander does not consent to repair or rBplacBlTlant of the CoIlaterel, Lender shBlI retain B sufficiant amount of the proceeds to pay BlI of thB Indebtedness, and shall pay the bBIance to Grantor, Any proceeds which have not been disbursed within six (6) months after their recBlpt and which Grantor has not committed to the repair or restoration of the Collateral shall be used to prepay the IndBbtedness. Insurance Reserves. LBnder may require Grantor to maintain with LBndBr reserves for payment of insurance premiums, which resBrvBS shall be crested by monthly payments from Grantor of a sum BStlmated by LandBr to be sufficient to produce, at lesst fifleen (15) days beforB the premium due date, amounts at lesst equBl to the insurance premiums to be paid. If frfteen (15) days before paymBllt is'1:fuB, the rBServB funds are insufficient, Grantor shBlI upon demand pay any deficiency to LBnder. The rBSBrvB funds shall be hBld by LendBr as a genBraI depostt and shBlI constiluIe a non-intBrest-bearing account which Lander may satisfy by payment of the insurance prBlTliums required to be paid by Grantor as they become dUB. Lander does not hold the reserve funds in trust for Grantor, and Lender is not the agant of Grantor for payment of the insurancB prBlTliums required to be paid by Grantor. ThB responsibility for the paymant of premiums shall remain Grantor's sole responsibility, Insurance Reports. Grantor, upon request of Lander, shall fumish to Lender reports on esch existing policy of insurance showing such Infol'lTlBtIon as Lender may reasonBbly request including the following: (a) the namB of the insurer; (b) the risks Insured; (c) the amount of the policy; (d) the property insured; (e) the than current vBlue on the basis of which Insurance has been obtained and the manner of dBlennining that value; and (I) the expiration date of the policy, In addttion, Grantor shall upon requBSt by LBnder (however not more often than annuBlly) havB an Independent appraiser satisfactory to Lender detennine, as applicable, the cash vBlue or replacBment cost of the Collateral. GRANTOR'S RIGHT TO POSSESSION AND TO COLLECT ACCOUNTS. Until dBfault and except as otherwise provided below with respect to accounts, Grantor may have possession of the tangible personBl property and beneficial use of BlI the Collateral and may use tt in any lawful manner not inconsistant with this Agreement or the Related Documants, provided that Grantor's right to possession and benefICial use shall not apply to any CoIlatBrBl where possession of the Collateral by Lender is required by law to perfect LBndBr's security interest in such Collateral. Until otherwise notified by Lender, Grantor may collect any of the Collateral consisting of accounts, At any time and evan though no Evant of Defaull exists, LBnder may Bxercise its rights to collect the accounts and to notify account debtors to make payments directly to Lender for application to the Indebtedness, If lBnder at any time has possBSsion of any Collateral, whether before or after an Evant of Default, Lander shall be deemed to have exercised ressonable care in the custody and preservation of the CollaterBl if LendBr takes such action for that purpose as Grantor shall request or as lBnder, In Lender's sole discretion, shall deem appropriate under thB circumstancBS, but failure to honor any request by GrBntor shall not of itself be deemed to be a failure to exercise reBsonable care. Lander shall not be required to take any steps necessary to preserve any rights in the Collateral against prior parties, nor to protect, preserve or maintain any security InterBSt glvan to secure the Indebtedness. ' EXPENDITURES BY LENDER. If not discharged or paid when due, Lender may (but shall not be obligated to) discharge or pay any amolrlts required to be discharged or paid by Grantor under this Agreement, including without limitation BlI taxes, Uans, security interests, encumbrances, and other claims, at any time levied or placed on the Collaterel. Lender also may (but shall not be obligated to) pay BlI costs for insuring, maintaining and preserving the Collateral. All such expenditures Incurred or paid by LBnder for such purposes will than bear interest at the rate charged under the NOtB from the date incurred or paid by Lender to the date of repayment by Grantor. All such expanses shall become a part of the Indebtedness and, at Lander's option, will (a) be payable on demand, (b) be added to the bBIance of the Note and be apportioned among and be payablB with any installmant payments to become due during either (i) the tenn of any applicable Insurance policy or (10 thB rB/TlBlnlng tenn of the NOtB, or (c) be trested as a balloon payment which will be due and payable at the Note's maturity. This Agreemant Blso will secure payment of these BlTlOunts, Such right shall be in addition to all other rights and remedlBs to which Lander may be entitled upon the occurrBnce of an Event of Default. EVENTS OF DEFAULT. Each of the following shall constitute an Event of Default undBr this Agreemant: Default on IndBbtednBSs. FailurB of Grantor to make any payment whan dUB on the IndebtednBSs. Other Defaults. Failure of Grantor to comply with or to perform any other tenn, obligation, covenant or condition contained in this Agreement or In any of the Related Documents or in any other agreement between Lander and Grantor, Default In Favor of Third Parties. Should Borrower or any Grantor default under any loan, extension of credit, security agreement, purchase or sales agreement, or any other agreemant, In favor of any other creditor or person that may materially affect any of Borrower's property or Borrower's or any Grantor's ability to repay the Loans or perform their respective obligations under this Agreement or any of the RBlated Documants, False StatBlTlents. Any warranty, representation or statemant made or fumished to LandBr by or on behalf of Grantor under this Agreemant, the Note or the Related Documents is false or misleBding In any material respect, either now or at the time made or fumished. Defective Collaterallzatlon. This Agreement or any of the Related Documants CBases to be in full force and effect (Including failure of any collaterBl documants to create a valid and perfected security interBst or Uan) at any time and for any reason, Death or Insolvency. The dissolution or tenninatlon of Grantor's existence as a going business or the death of any partner, the insolvancy of Grantor, the appointment of a recBiver for any part of Grantor's property, BIlY assignment for thB benefit of creditors, any type of creditor workout, or the commencement of any proceeding under BIlY bankruptcy or Insolvency laws by or against Grantor, Creditor or Forfeiture Proceedings. CommancBlTlBllt of foreclosure or forfeiture proceedings, whether by judicial proceeding, self-hBlp, repossession or any other method, by any creditor of Grantor or by any govemmental agency against the Collateral or any other collateral securing the Indebtedness, This includes a gamishmant of any of Grantor's depostt accounts with Lender, However, this EVBnt of Default shall not apply n thBre is B good faith dispute by Grantor as to the vBlidity or reasonableness of thB claim which is the basis of the creditor or forfeiture proceeding and n Grantor gives Lender written notice of the crednor or forfetture proceeding and deposits with LandBr moniBS or a sur8ly bond 05-04-2000 Loan No 2862095 COMMERCIAL SECURITY AGR!EMENT (Continued) Page 4 for the cred~or or forfeilurB procBeding, in an amount dBlennined by Lender, in Its sole discretion, as being an adequate reserve or bond for the disputB, Events Affecting Guarantor. Any of the preceding events occurs with respect to sny Guarantor of sny of the IndBbtedness or such Guarantor dies or becomes incompetent LendBr, at Its option, may, but shall not be required to, penn~ the Guarentor's estate to assume uncond~ionally the obligations arising under the guarenty in a manner satisfactory to Lender, and, in doing so, cure the Event of Default AdVBrSB Change. A material adverse change occurs in Grantor's financial condition, or Lender believes the prospect of payment or performance of the Indebtedness is impaired. Insecurity. Lender, in good faith, deems Itself insecure, Right to Cure. If any default, other than a Default on Indebtedness, is cureble and If Grantor has not been given a prior notice of a breach of thB same provision of this Agreement, ~ may be cured (and no Event of Default will have occurred) If Grantor, after LBnder sends written notice demanding cure of such default, (a) cures the defBUlt within tBn (10) days; or (b), If thB cure requires more than ten (10) days, immediately initiates steps which LBnder deems in Lender's sole discrBtion to be sufficient to cure the default and thereafter continues and completes BII reasonable and necessary steps sufficient to produce compliance as soon as reasonably practical, RIGHTS AND REMEDIES ON DEFAULT. If an Event of Default occurs under this Agreement, at sny time thereafter, Lender shall havB all the rights of a secured party under the PBnnsylvania Uniform Commercial Code. In addition and without limitation, Lender may exercise sny one or more of the following rights and remedies: AccelBI'8te IndBbtednesS. Lender may declare the entire Indebtedness, including any prepayment penalty which Grantor would be required to pay, immediately due and payable, without notice, AssBrTlblB ColIBtsral. Lender may require Grentor to deliver to LBnder all or any portion of the Collateral and any and all certificates of We snd other documents relating to the CollatBrel. Lender may require Gl'BOtor to asSBlTlblB the CoIlatBraI and mal<B ~ avallBble to Lender at a p1Bca to be designated by Lender, Lender also shall have full power to Bnter upon the property of Grantor to teke possession of Bnd remove the CoIlatBraI, If the Collateral contains other goods not covBred by this Agreement at the time of repossession, Gl'BOtor agrees LendB!' may takB such other goods, provided thet Lender mal<es reasonable efforts to return thBrn to Grantor after repossession. SBII the CollatBraI. Lender shall havB full power to sBII, leasB, transfBr, or othBrwisB deal with thB Collateral or procBeds thereof in Its own nBme or thet of Grantor. LBnder may sell thB ColIBtBral at public auction or private salB. Unless the Collateral threatens to decline speedily in valUB or is of B type customarily sold on a recognized market, Lender will givB GrBntor reasonable notice of thB time after which sny privatB sale or any other Intended dispos~ion of the Collateral is, to be madB. ThB requirements of reasonablB notiCB shall be met If such noticB is given at least ten (10) days before thB time of thB sale or dispos~ion. All expenses relating to the disposition of the Collateral, including without limitation the expenses of rBleking, holding, insuring, preparing for sBle and selling thB CoIlatBraI, shall become B part of the Indebtedness secured by this Agreement snd shall be payable on demand, with interest at thB Note rate from datB of Bxpendilure until repaid, Appoint Receiver. To the extent permitted by Bpplicable law, Lender shall have the following rights and rBmedies rBgarding the BPpointment of a receiver: (a) Lender may hBve a receiver appointed as B mattBr of right, (b) the receiver may be sn Brnployee of Lender and may SBrve without bond, and (c) all fees of the receiver and his or her attorney shall become part of thB Indebtedness secured by this Agreement and shall be payable on demand, with interest at the Note rete from date of expend~ure until repaid. Collect Revenues, Apply Accounts. LendBr, eithBr Itself or through a receiver, may collect thB payments, rBnts, incomB, and rBVenues from the Collateral. LendBr may at any time in Its discretion trensfBr any CoIlatBral into Its own name or that of Its nominee and recBive the payments, rents, income, Bnd revenues therBfrom and hold the same as security for thB IndBbtedness or BPply ~ to payment of the Indebtedness in such order of preferBnce as Lender may detennine. Insofar as the Collateral consists of accounts, general intangibles, insUI'BOCB policies, instruments, chattel paper, choses in action, or similar property, LendBr may demand, collect, recBipt for, sBttle, compromise, adjust, sue for, foreclose, or realize on the CoIlalBral as Lender may dBlermine, whether or not Indebtedness or Collateral is then due. For these PUrposBS, LendBr may, on behalf of and in the name of Grsntor, receive, open and dispose of mail Bddressed to Grentor; change Bny address to which mail and payments are to be sent; and endorse notBS, checks, drefts, monBY OrdBrs, documents of We, instruments and ~ems pertaining to payment, shipment, or storege of sny Collateral. To facllitalB collection, Lender may notify account debtors and obligors on any CoIlalBraI to makB payments direc1ly to lendB!'. Obtain Deflcliilcy. If Lender ChoosBS to sell any or all of thB CoIlalBral, LendBr may obtain a jucfgment Bgainst Grantor for any deficiency remaining on the IndBbtedness due to Lender aftBr application of all amounts received from thB eXBrclse of thB rights provided in this Agreement. Grantor shall be liablB for a dBliciency eVBn If the transaction dBScribed in this subsection Is B salB of accounts or chattel paper, othBr Rights and RBrTledles. Lender shall haVB all thB rights and rBmedies of a secured creditor under the provisions of the Uniform Convnercial Code, as may be Bmended from time to time. In addition, Lender shall havB snd may exercise any or BII othsr rights Bnd remediBS It may have BvBilable at law, in equity, or otherwise. CumulatlvB Remedies. All of Lender's rights and rBmedies, whBther BVidenced by this Agreement or the RBlated Documents or by any other writing, shall be cumulative and may be BXBrcised singulBrty or concurrsntly. Election by Lender to pursue any remedy shall not exclude pursu~ of Bny other remedy, and sn election to mal<e BXpendilures or to take action to perform an obligation of Gl'BOtor undBr this Agreement, aftsr Grantor's fBfture to perform, shall not affect LendBr'S right to declarB a default and to exercisB Its remediBS, MISCELLANEOUS PROVISIONS. The following mlscellsneous proVisions are a part of this Agreement: Amendments. This Agreement, together with any Related Documents, constitutes the entirB understanding Bnd agreement of thB parties as to the matters SBt forth in this Agreement. No altBratlon of or amendment to this Agreement shall be BffBCtivB unless given in writing and signed by the party or parties sought to be charged or bound by the a~eretion or amendment. Applicable Law. This Agreement has been delivered to Lender and accepted by Lender in the Commonwealth of PennsylVBr1ia. If therB Is a lawsuit, Gl'BOtor Bgrees upon Lender's request to subm~ to the jurisdiction of the courts of the Commonwealth of PBMSylvsnla. Lendsr and Grantor hereby wBiYe the right to sny jury trial in any action, procBeding, or countBrclBim brought by BithBr Lender or Grantor against thB other. This Agreement shall be govBmed by and construed in accordBnC8 with the laws of the Commonwealth of Pennsylvsnia, Attorneys' F_; Expenses. Grantor agrees to pay upon demand all of Lender's costs and expenses, including attorneys' fees and Lender's legal expenses, Incurred in connection with thB enforcement of this Agreement. LendBr may pay someone e1sB to help enforce this Agreement, and Grantor shall pay the costs and Bxpenses of such enforcement. Costs and Bxpenses Include Lender's attomsys' fees and legal expenses whether or not !hare is a lawsuit, including attomsys' fees and legal expenses for bankruptcy proceedings (Bnd including efforts to modify or vacalB sny automatic stay or injunction), lIppeBIs, and any BntIclpated post-judgment collection sBrVlces. Grentor also shall pay all court costs ~ such BddltipnBl fees as may be directed by the court. Caption HB8dlngL Caption headings in this Agreement Bre for convenience PUrposBS only and BrB not to be used to Interpret o~ defins the provisions of this Agreement. " .,.1.... 05-04-,2000 Loan No '2862095 COMMERCIAL S.ECURITY AGREEMENT . (Continued) Page 5 Multiple PartlBS. All obligations of GrB/lIOr under this Agreement shall be Joint and SBVBrBI, and all references to GrB/lIOr shall meBn BBch Bnd BVBry GrB/lIOr, This means that BBCh of the persons signing below is responsible for all obllgetlons in this Agreement. Notices. All notIcBS requirBd to be givBrl undBr this AgrBBmBnt shall be givBrl in writing, may be sent by telBfacsimile (unlBSs othBrwisB requirBd by law), and shall be BffBCtivB whBrl actually dBlivBrBd or whBrl deposited with a natlonBlly rBCOgnizBd ovBmight courier or deposttBd in the UnttBd States mail, first clBSs, postage prepeid, addrBSSBd to the party to whom the notice is to be given at the Bddress shown above, Any party may change its address for notlcBS undBr this AgrBBment by giving formal writtBrl notice to thB other parllBS, specifying that thB PUrposB of the notlcB is to change thB party's addrBSs. To the BXlant permittBd by applicable law, n there is morB thBn one Grantor, notice to BnY Grantor will conStJtutB noticB to all GrBntors. For notlcB purposes, Grsntor will keep LandBr informed at all times of Grantor's currBrlt addrBSS(BS), Power of Attorney. Grantor hereby appoints LBrlder BS its true and lawful attomey-In-lact, irrBvocably, with full power of substitution to do the following: (a) to dBmand, collBCt, rBCBive, rBCBipt for, sue Bnd rBCover all sums of money or other property which may now or harBBftar become dUB, owing or payable from the Collateral; (b) to eXBCutB, sign and endorse BnY Bnd all claims, instrumBnts, receipts, ChBCks, drafts or warrants issuBd in paymBrlt for the CoIlaterBI: (c) to settle or compromise BnY and all claims arising under the CollaterBI, and, in the place and stBBd of Grantor, to eXBCutB Bnd deliver its rBlease and settlement for thB claim; Bnd (d) to filB BnY claim or claims or to takB BnY action or institute or take part in BnY proceBdings, BithBr in its own name or in thB name of GrB/lIOr, or othBrwisB, which in thB discrstlon of lBnder may seem to be nBCBSsary or advisable, This power is givBrl as SBCUrity for the IndebtBdnBSs, and the authority hersby confBrrBd is Bnd shall be irrBvocable and shall remBin in full forcB and Bffect until rBnOuncBd by Lender. Severability. If a court of competent jurisdiction finds any provision of this Agreement to be invalid or unBrlforcBBble as to any person or circUmstanCB, such finding shall not rBndBr that provision invalid or unBrlforcBBble as to BnY other persons or CircumstancBS, If feasible, any such offending provision shall be dBBll1Bd to be modifiBd to be within tha limits of BrlforcBBbility or validity; however, n the offanding provision cannot be so modifiBd, tt shall be StrickBn and all other provisions of this Agreement in all other respects shall remBin valid and enforcBBble, Successor InterllSts. The terms of this AgrBBment shall be binding upon Grantor, and upon Grantor's heirs, personal reprBSBntativBs, successors, Bnd assigns, and shl!!1 be BrlforcBBble by LBrlder Bnd its SUCCBSSOrs Bnd BSsigns. Waiver. LBrlder shall not be deemBd to have waivBd any rights under this AgrBBmBrlt unless such waiver is given in writing and signBd by Lander. No dBlay or omission on the part of LBrlder in exercising any right shall operste as a waiver of such right or BnY other right. A waivBr by LandBr of a provision of this AgrBBment shall not prejudice or ConStJtutB a waiver of lBnder's right otherwisB to dBmand strict compllancB with that provision or any other provision of this AgrBBment. No prior waiver by LBnder, nor BnY course of dealing between LBndBr and Grantor, shall ConStJtutB a waiver of BnY of LBrlder's rights or of BnY of GrBntor's obligetions BS to BnY MurB transactions. WhBrlBVer the consent of LendBr is requirBd under this AgrBBment, the granting of such consent by Lender in any instancB shall not constitute continuing COnSBrlt to subsequBrlt instances where such conSBrlt is requirBd !,"d in all cases such consent may be grBntBd or withheld in the sole discrBtion of LBnder, GRANTOR ACKNOWLEDGES HAVING READ ALL THE PROVISIONS OF THIS COMMERCIAL SECURITY AGREEMENT, AND GRANTOR AGREES TO ITS TERMS. THIS AGREEMENT IS DATED MAY 4, 2000. THIS AGREEMENT HAS BEEN SIGNED AND SEALED BY THE UNDERSIGNED. GRANTOR: Trlscarl Video Servl "~(sEALJ By:' (SEAL) Sign X X LENDER: LASER PRO, Reg, U,S, Pat & T,M, Off" Vor, 3,28c (e) 2000 CFI ProS 'os, Ine, All rights resorvod,IPA-E40 E3,27 F3,27 OSTRIOO,LN C20,OVLJ PARTIES DEBTOR ...... (last nome filS' if Individual) end moiling add....: Tr1scarI Video ServicBs 55-B Central Blvd Camp Hili, PA 17011 DEBTOR name (last name first if Individual) and mailing address: oeBTOR name (Last name first if IndiVidual) and mailing address: seCURED PARTYOee) name(s) (1ast name first if individual) and address for MCurilyl_lnfOllllllfion: CommBrce BBnklHarrisburg, National Association P.O, Box 8599, 100 Senate Avenue Camp Hill, PA 17001-8599 ASSIGNEE(S) OF SECURED PARTY name(s) (1801 name first if individual) end addrass for security interest infonnation: SPECiAl TYPES OF PARTIES (Check ff eppiicallle): O The tenns -Debtor" and -Secured party" mean "Lessee" and "J-assol'", respectively, o o The tenns "Debtor" and .Secured Party" mean .Consignee" and 'Conoignof, respectively, Debtor is a Transmitting Utility SECURED PARTY SIGNATURE(S) THIS STATEMENT IS FiLED WITH ONLY THE SECURED PARTY'S SIGNATURE to perfect a security Interest in c"'lateral (check applicable bo.(..)) -' aD b'D ACQUIRED AFTER A CHANGE OF NAME, IDENTITY OR CORPORATE STRUCTURE of the Deb'or, as to which the filing has lapsed. c. already subject to a security interest in ANOTHER COUNTY in Pennsylvania D when the COLLATERAl WAS MOveD to this county. D when the DEBTOR'S RESIDENCE OR PLACE OF BUSINESS WAS MOVED to this county. d. already subject to a security interest in ANOTHER JURISDICTION - . D when the COLLATERAL WAS MOVED to Pennsylvania. D 8, D when tho DEBTOR'S RESIDENCE OR PLACE OF BUSINESS WAS MOVED to Pennsylvania. which is PROCEEDS of the coUateral described in block 9. in which a security interest was previously perfected (also describe proceeds in block 9. if purchased with cash proceeds and not adequately descnbed on the original financing statement). SECURED PARTY SIGNATURE(S): (required only if bOx(es) is checked above): FINANCING STATEMEN"I' UNIFORM COMMERCiAl CODE FORM UCC-1 FILING NO, (stamped by filing offIce~: DATE, TIME. FiLING OFFICE (otampod by filing oIfIcor) 5 1. This FINANCING STATEMENT is presented forflling pursuant to the Uniform Commercial Code. and is to be filed with the (check applicable box): ~ SecretlUY of the Commonwealth, o Prothonotary of D 1'8a1 estate Records of 6 7 8 County, 1b County, NUMBER OF ADDITIONAl SHEETS (If any): OPTIONAL SPECIAL IDENTIFICATION (Max, 10 chOl8CtelS): COLLATERAL 2 Identify collateral by item andlortype: See Attached Exhibit to UCC Financing Statsment dated May 4, 2000. 2. ~ (check only if desired) Products of the collateral are also covered. 9 3 IDENTIFY RELATED REAL ESTATE. if applicable. The collateral is, or includes (check appropriate bo.(..)) - a. D CROPS growing or to be grown on - b. ~ goods which are to become FIXTURE on - c. 0 MINERALS orthe like (including oil and gas) as extracted on- d, D ACCOUNTS RESULTING FROM THE SALE OF MINERALS or the like (including oil end goo) at the wellhead or minehead on- the following real estate: STREET ADDRESS: DESCRIBE AT: Book of (check one) D Deeds D Mortgages, at Page(s)_. County. Uniform Parc&lldentifier for D Describe on Additional Sheet NAME OF RECORD OWNER (required only if no Debtor has an interest of record): 10 1b 11 RETURN RECEIPT TO: Commerce Bank/Harrlsburg, National Association P.O. Box 8599 100 Senate Avenue Camp Hili, PA 17001-8599 4 12 STANDARD FORM - FORM UCC-1 (7-89) Approved by the Secretary of the Commonwealth of Pennsylvania flUNG OFFICE ORIGINAL NOTE - This page will not be returned by the Department of State, EXHIBIT TO UCC-1 FINANCING S:rAT~MENT DEBTOR: May 4, 2000 TrIscarI VldBO Services MAILING ADDRESS: 55-B Central Blvd, Camp Hili, PA 17011 COLLATERAL DESCRIPTION: All Inventory, Chattel Paper, Accounts, Equipment, GenBnlI Intangibles and Fixtures; whethBr any of the foregoing Is ownBd now or acquired later; all accessions, additions, replacemBnts, and substitutions relating to any of the foregoing; all records 01 any kind relating to any of the foregoing; all proceeds relating to any of the foregoing (Including Insurance, genBrallntanglbles and othBr accounts proceecls).. 1111. Financing Statement Is to be recordBd In the real estatB records. Some or all of the collatBral Is locatBd on thB following described real estate: 111ls Exhibit Is executed on the same datB as the UCC-1 Financing StatBment by CommBrce BanklHarrlsburg, National Ass latlon and the underslgnBd. / ~~S~lanG~:~a~ . . PARTIES DEBTOR IlllITl8 (Lut nll/ll8 first n lndIvidulll) end mailing odd....: Trlscari VIdBO Services 55-B CBI11rBI Blvd Camp Hili, PA 17011 OEBTOR name (Last name first if Individua6) and mailing address: oeaTOR name (Lat name first if Individual) and mailing address: SECURED PARTYQ..) nome(.) OUl nll/ll8 first if indviduaJ) end address lor socultly I_I i_on: CommercB BanklHarrisburg, National Association P.O. Box 8599, 100 SenBta Avenue Camp Hili, PA 17001.8599 ASSIGNEE(S) OF SECURED PARTY name(s) QUI nll/ll8 first if individual) end address tor security inte.-1lnformation: SPECIAL TYPES OF PARTIES (Chock if applicable): O The tfHmS -Debtor" and .Secured Party" mean "Lessee" and "Lessor", roopoctively, - o o The terms "Debtor" and .Secured Party. mean .COnsignee" and "COnsignor". respectively. Debtor is a Transmining Utility SECURED PARTY SIGNATURE(S) THIS STATEMENT IS FILED WITH ONLY THE SECURED PARTY'S SIGNATURE to perfect. security intel'8St in collateral (check applicable box(oa)) -' LD b'D ACQUIRED AFTER A CHANGE OF NAME, IDENTITY OR CORPORATE STRUCTURE ofth. Debtor, U to which the filing hu lapsed. c. already subject to a security interest in ANOTHER COUNTY in Pennsylvania D D when the COLLATERAL WAS MOVED to this county. wilen tho DEBTOR'S RESIDENCE OR PLACE OF BUSINESS WAS MOVED to this county. d. already subject to a security interast in ANOTHER JURISDICTION - D when the COLLATERAL WAS MOVED to Pennsylvania. D e'D wilen the DEBTOR'S RESIDENCE OR PLACE OF BUSINESS WAS MOVED to Pennsylvania. which is PROCEEDS of the collateral described in tHock 9. in which a security interest was previously pertected (ajso describe proceeds in block 9. it purchased with cash proceeds and not adequately described on the original financing stalement). SECURED PARTY SIGNATURE(S): (required only it box(es) is checked above): FINANCING STATEMENT UNIFORM COMMERCIAL CODE FORM UCC-1 ALING NO, (SllllTlped by IIl1ng offIcor): DATE, TIME, FILING OFFICE (stomped by flllng _.r) 5 10 This FINANCING STATEMENT is presented torflllng pursuant to the Unitonn Commerciaj Code. and is to be filed with Ihe (check applicabte box): D Secretary of the COmmonweaUh. [!J ProthonoteJy of Cumbe~end County D r&aI estate Records of 6 7 8 lb County, NUMBER OF ADDITIONAL SHEETS (lIeny): OPTIONAL SPECIAL IDENTIACATION (M... 10 ch_): COLLATERAL 2 Identify collateral by item andlortype: See Attached Exhibtt to UCC Financing Statement dated May 4, 2000, 20 [!J (check only if desired) Products of the collateral ant also covered. 9 3 IDENTIFY RELATED REAL ESTATE. if appUcable. The collateral is. or includes (check appropriate box(os)) - a. D CROPS growing or to be grown on - b. [!J goods which are to become FIXTURE on - c. D MINERALS ortheUke Oncludlng oil and gas) as extracted on- d, D ACCOUNTS RESULTING FROM THE SALE OF MINERALS or the like Qncludlng 011 end gos) al the wellhead or minehead on - the following real estate: STREET ADDRESS: DESCRIBE AT: Book for 01 (chock one) D Doods 0 MOIlg.goa,etP"llo(s)_, COunty. Unifonn Parcelldentifler D Describe on Additional Sheet NAME OF RECORD OWNER (required only if no Debtor has an interest of record): 10 DEBTOR SIGNATURE(S) lb 11 RETURN RECEIPT TO: Commerce BanklHarrlsburg, National Association P.O. Box 8599 100 Senate Avenue Camp Hili, PA 17001-8599 4 12 STANDARD FORM - FORM UCC-l (7-89) Approved by the SecrBtary of the Commonwealth of Pennsylvania DEBTOR COPY NOTE - This page will not be retumed by the Department of State, EXHIBIT TO UCC-1 FINANCING STAT~MENT DEBTOR: May 4, 2000 Trlscarl VldBO Services MAILING ADDRESS: 55-B CBllnl Blvd, Camp Hili, PA 17011 COLLATERAL DESCRIPTION: All Inventory, Chattel PaPBl', Accounts, EqulpmBllt, GBllerallntanglbles and Fixtures; whether any of the forBgolng Is owned now or acquired 18ter; all accessions, additions, replacements, and substitutions relating to any of the foregoing; all records of any klnd relating to any of the foregoing; all proceeds relating to any of thB foregoing (Including Insurance, general IntanglblBS and other accounts proceeds).. this FInancing StatemBllt Is to be recorded In the real estate records. SomB or all of thB collateral Is located on the following dBScrlbed real estate: this Exhibit Is executed on the samB date as the UCC.1 Financing Statement by Commerce BanklHarrlsburg, National Association and the undersigned. Y.~carl ~~C/ e/ BV~ Signature(o) of De oj ~ "71~ Ignoture(o) of See rod POlly Q " COMMERCIAL. GUARANTY Borrower: Trt_rt V~ ServIGM (11N: 251853479) 55-B COntnll Blvd Camp HIli, PA 17011 Lender: Commerce BanklHarriaburg, NaUonal A..oclatlon MIIln OfflcWCommercllil Cost Center P.O. Box 8599 100 Sene" Avenue Camp HIli, PA 17001-8599 Guarentor: ThomIlll A. Spock 3789 Carll... Rood 0-., PA 17324 AMOUNT OF GUARANTY. Thll... guaranty of payment of 100.000% of the Note, including without IIm1t1tfon the principal Note amount o' Ten ThouoMd & 001100 Doll.,.. "10,000.00). GUARANTY. For good and Y11luable conltldendJon, Tllom.. A. Speck (-Gulrantor.) lbeolutely end unconditionally guarant... and promises 10 poy to Commorce Bon_~, -...1 All_.llon ('Lender") or IllI _, on -nd, In 1eglI1_ oIth. Un_ S..... 01 Amerleo, 100.000% ollheln__ (0 thot tonn 10 deIInlld boIow) 01 TrIocort Video SOMceo ('Borrower') to Lender on the ........ ond condlllon. Nt forth In thle Gu..-anty. Gu....ntor .U..... th8t Lender, In Ita aole dl8cretIon, mIIY determine which portion of Borrower', Indebtednesl to Lender 10 -"" by 0.._'. _11IOO guoronty. DEFlNmONS. lhe foIlow1nQ WOlds _ hIlvethe IoIIowInQ mesnlngs when used In this Guaranty: Borroww. lhe word "Bonowet" meano Tr1scari VIdeo serv_, Gu....,tor. The word "Guarantor" means Thomas A. Speck. Gu...nty. The word "Guaranty" ITI88flS this Guaranty med9 by Guarantor for the benefit of Lender dated May 4, 2000. 1__. lhe word "Ind_." means the Note, IncludlnQ (a) an principal, (b) aJllntaraa~ (e) a11lala chllrges, (d) all _ _ and loan charges, and (8) aA collection costs and expenses relating to the Note or 10 any coHateral tor the Note. Collection costs and expenses Include without limitation all of Lender's attorneys' fees and Lender's legal expertS", whether or not suit Is instituted, and attorney.' fees and legal a.pens.. for bankruptcy pn,eaadi ogs (lnctudtng afforts to mcdlfy or yocala any .uIomallc .lay or InJunctlon), appeal., and any antlclpatad post-]udomant cclIectlon ....-, Lender. The word -Lender" means Conmerca BanklHarrlsburg, National Association, Its successors and BSSVls. Not.. The word -Note- means the promissory note or credit agreement dated May 4, 2000, In the original principal amount of '10.000.00 from I!OITowar to Landor, Icgav. with an ranawals cf, aXtanaIon8 of, rncdlfIcatlon8 of, raflnanclnga of, ccnscIldatlon. of, and .ub8t1tu11on8 for the promissory note or agreement. NotIce to a.....ntor: The Note evIdence8 a revolving Itne of credit from Lender to Borrower, Related Documenta. The WOfdft -Related Documents- mean and Include wtlhout linltatlon all promissory notes, credtt agreements, loan agreements, envlrormentsl agreements, gtlBrantles, security agreements, fl'IOI'Ig8ig88, deeds of trusl, and all other Instruments, agreements and documents, whether now or hereafter existing, executed In connection with the Indebtedness. MAXIMUM UABILfTY. The maximum liability of Guarantor under this Guarenty ...11 not exceed at any one time 100.000% o' the amount o' the IndebtecL.s dltlCl'lbed above, plus all coeta Met expens.. o' (a) enforcement of tltls Guaranty and (b) collection and al. o' any collateral ucurlng thlo Ou.ronty. The above limllatlon on IlabHIty Is not a restriction on the amount of the Indebtedness of Borrower to Lender etther In the aggregate or at any one time. If Lender presently holds one or more guaranties, or hereafter recefves addllfonal guaranties from Guarantor, the ~ of Lender under an guaranties shall be cumulative. ThiI Guaranty shBII not (lIlIess spec"lcally provk:led below to the contrary) affect or Invalk:late any such other guaranties. The 'labllly cf G.....- wi! ba the _Ia IIabIIIy cf Gusnmlor undar tho Iam18 of Ihlo Guaranty and any .uch _ o.ntannInal8d OUSrontlas, NATURE OF GUARANTY. Guarantor Intends to guarantee at aI tines the performance and pl'Ol'1lJl payment when due, whethef at maturity or earlier by reason of acceleration or othefwlse, of allndebIednesa wtthln the limits sel forth In the precedtng section of this Guaranty. 111ls Guaranty covers a revotvlng line of credit and guarantor underalandli and .... that thl. guarantee .hall be open Md continuous unU! the lme of credit I. __ _ Ihe _.....10 plIld In fun, 0 provIdlId boIow. DURA110N OF OUARANTY, This Gusranty will taka affect when received by Lendor without the nec...1Iy of any accaptanca by Landor, or any notice to Guarantor or to Borrower, and wUI conti1ue In full force untH aN Indebtedness shaI have been fiMy and bUy pa~ and satisfied and all olher obligations of Guarantor mder this Guaranty shan have been performed In full. ReIe8se of any other guarantor or termination of any other guaranty of the Indebtedness shall not affect the llablltty of Guarantor under thts Guaranty. A revocation received by Lender from any one or more Guarantors shall not affect the IlabHlty of any remaining Guarantors under this Guaranty, Thl. Guaranty covers e revolving line o' credit end It I. .peclflcally ....tlclpMed ttm fluctuation. will occur In the aggregate amount of hMlebtecll~. owing 'rom Borrower to Lender. GUlrwltor apeclflCIIlly acknowIedgeI ~d .... IMt fluctuation. In the amount of Indebtedneaa, even to zero dollarl ($ 0.00), .hall not constitute. termfmltlon of thl. GUllrenty. Gu....ntor'. liability unci<< thl. Guaranty .hall terminate only upon (e) termination In wrltlng by Borrower and Lender of the line 01 crlIdll, (b) poymont 01 Ihe h___ In lull In IlIgIIl _..nd (e) poymonl In full In IlIgIIl _ 01 .11 0_ obIlgot1on. 01 Gu.,..ntor under thl. Guaranty. GUARANTOR'S AUTHORIZATlON TO LENDER. Guarantor authorizes lender, without notice or demlnd end without leuenlng Guarentor'. Iteblllty under thl. GualW1ty, from time to time: (a) to make one or more additional secured or unsecured loan. to Borrower, to lea.e equipment or otIt.. goods to BOI'I'OWW, or otherwl.. to extend additional credit to Borrower; (b) to .ner, comproml.e. renew. extend, acceIwaIe, or otherwIae change one or more II,.,.. the time for payment or oth.. terms of thelndebtednen or any p8rt 01 the Indebtedn.... Including IncnNllW and decreues of the rate of IntereIt on the Indebtedn_; exten.1ons may be ......ted and may be for longer than the ortglnal IHn term; (c) 10 take and hold aecurIty for the payment of thl. Guaranty or the Indebtedn_, and exchange, enforce, waive. .ubordlnate, fell or decide not to perfect, Md rei.... any IUCh aecurlty, with or without the aubetltutlon of new coll....I; (d) to relnH. 1Ubltltute, .gree not to .ue. or elMl with anyone or more o' Borrower's .urea.... encIoreers, or othw guarantors on eny terms or In any mannw Lender may chooae; (.) to ~fne how, when and what .pplk:eUon of PQmenII .net credIta ....11 be made on the Indebtednes.; (I) to epply .uch securfty end direct tile order or manner of ale thereof, Inctudlng wfthout limitation, any nonJudlcllll ale permitted by the term. of the controlling aecurtty agreement or deed of trust. .. Lender In Ita discretion may determine; (g) to 118I1, ....n..... 8IIign, or grent pert:lctpa:tlon. In ell or any pert of the Indebtednen; end (h) to Hllgn or Iran"" this Guaranty In who.. or In part. GUARANTOR'S REPRESENTATlONS AND WARRANTIES. Guarantor represents and warrants to Lender that (a) no representations or agreements of any kind hIlve boon modo to Guarantor wf1Ich would limit or qualify In any way tho Iam18 of Ihlo Guaranty; (b) this Gusranty Is 8l<ecuted at Borrowar'. raquasl and notal tho _t of Landor; (e) Guarantor hIl. full powor, right and auffQlly to ."tar Into this Guaranly; (d) the provision. cf this Guaranty do not conflict wfIh or resutlln a defaulllJf'lder any agreement or other hstrument binding upon Guarantor and do noI result In a violation of any law, regutation, court decree or order applicable to Guarantor; (e) Guarantor has not and wll not, wiIhouI the prior wrlIten consent of Lender, sen, lease, assigl, encumber, hypothecate, transfer, or othefwtse dispose of an or substantially aD of Guarantor's assets, or any Inlerest therein; (f) upon Lender's request, Guarantor will provide to Lender financial and credit Infonne.tion In form acceptable to Lender, and all such financial infonnatlon which currenlty has been, and an future flnanclallnformatfon which will be provided to Lender Is and wi be true and correct In a" material respects and fairly present the financial condiIlon of Guarantor as of the dates the flnanclallnformatlon ts provided; (g) no material adverse change has occurred In Guarantor's manclal condition since the date of the most recent financial statements provided to Lender and no event has occurred which may materially adversely affect Guarantor's financial condition; (h) no litigation, claim, investigation, administrative proceeding or slmlar action (including thoee for LJ1P8Id taxes) agalnat Guarantor is pending or threatened; (Q Lender has made no representation to Guarantor as to the credllworthlness of Borrower; and 0) Guarantor has eslablished adequate means of obtaining from Borrower on a continuing basis information regarding Borrower's financial condition, Guarantor agrees to keep adequately Informed from such means of any facts, events, or circumstances which might: In any way affect Guarantor'. risks under this Guaranty, and Guarentor further agreee that Lender shall have no obligation to disclose to Guaranlor any Infonnation or documents acquired by Lender In the course of lis relationship wfIh Borrower. GUARANTOR'S WAIVERS. Except 88 prohibited by applicable law, Guarantor waives any right to require Lender (a) to continue lending money or to extend other credit to Borrower; (b) to make any presentment, protest, demand, or notice of any kind, including notice of any l'lOrlpAyment of 'the Inclebledness or of any nonpayment related to any collateral, or notice of any action or nonaction on the pert of Borrower, Lender, any surety, endorser, or other guarantor In ccnnectloo wtth the Indebtedness or In connection wtth the creation of new or additional bans or obIlgatlons: (c) to resort for paymenl or to proceed d1recUy or at once agalnl!ll any person, including Borrower or any other guarantor; (d) to proceed dWectty against or exhaust any collateral held by Lender from Borrower, any other guarantor, or any other person: (e) to gtve notice of the tenns. time, and place of any public or private sale of personal property secuffty held by Lender from Borrower or to compty with any oIher applicable provisions of the Uniform Comnerclal Coda; (Q to purBua any _ ramady within Lendar'. powar; or (g) to corrrnII any act or omIaslon of any kind, or at any lima, with raspect to any 05-04-2000 Loan No 2862095 COMMERCIAL GUARANTY (Continued) Page 2 matter whatsoever. If now or hereafter (a) Borrowef shall be or become Insolvent, and (b) the Indebtedness shan not at all Urnes unti paid be fuUy secured by collateral pledged by Borrower. Guarantor hereby forever waives and relinquishes In favor of lender and Borrower, and IheIr respective successors, any claim or right to payment Guaranlor may now have or heJeafler have or acquire 8gE1lnSt Borrower, by subrogation or otherwise, so that al no time shall Guarantor be or become a -creditor" of Borrower within the meanilg of 11 U.S.C. section 547(b), or any successor provtslon of the Federal bankruptcy laws, Guarantor also waives any and all ~ or defenses arising by reason of (a) any -one action- or -antl-deficlency- law or any other law which may prevent Lender from bringing any ectIon.lndudtng 8 claim for deficiency, agalnsl Guarantor. before or after Lender's \NI1.,.etlC.enl8f1l or CClfllJIetion of any forectosure action, either judlclaJty or by exercise 01 a power of sale; (b) any etectIon of remedtes by Lender which destroys or otherwise adversely affects Guarantor's subrogation r~ or Guarantor's rights to proceed against Borrowef for reimbursement, including without limttation, any loss of rights Guarantor may suffer by reason of any law llmttfng, qualifying, or discharging the Indebtedness; (e) any dlsablity or other defense of Borrower, of any other gusrantor, or of any other person, or by l"ENISOf'l of the cessation 01 Borrower's liability from any cause whatsoever, other than payment In full In legal tender. of the Indebtedness; (cI) any IVttlo claim discharge of the Indebtedness on the baS$ of unjustified impairment of any collateral for the Il'JdebtEdless; (e) any statute of limitations, If at any time any action or suit brought by Lender against Guarantor is commenced there is outsl8.ndlng Indebtedness of Borrovver to Lender which Is not barred by any appllcabte statute of limitations; or (f) any defenses given to guarantors allaw or in equity other than actual payment and petformance of the Indebtedness. If payment is made by Borrower, whether voIunlarHy or othetwlse, or by any third party. on the Indebtedness and therea.ftef Lender Is forced to ramll the amount of that payment to Borrower's trustee In bankruptcy or 10 any slmlar person under any federal or state bankruptcy law or law for the relief of cIebIors, the Inclebledness shall be considered unpaid lor the purpose of enforcemonl 01 !hill GUOlllnty, Guarantor flJf1her waives and agrees not to assert or claim at any time any deductions to the amooot guaranteed under this Guaranty for any claim of setoff, COUlterctalm, ooooter demand, recoupment or slmHar rVrt. whether such cfalm, demand or right may be asserted by the Borrower. the Guarantor, or both, GUARANTOR'S UNDERSTANDING WITH RESPECT TO WAIVERS. Guarantor warrants and agrees that each of the waivers set forth above is made wtth Guarantor's f1JI knowledge of Its slgnlflclmce and consequences and that, under the circumstances, the waivers are reasonable and not contrary 10 public policy or law. "any such waiver ts determined to be contrary to any applicable law or public policy. such waiver shall be effective only to the oxtent pormittod by law or public policy, LENDER'S RIGHT OF SETOFF. In addition to all liens upon and rights of setofl against the moneys. securtties or other property of Guarantor given to Lender by law, lender she' have, with respect to Guarantor's obligations to lender under tNs Guaranty and to the extent permit1ed by law, a contractual security lnteJest In and a right of setoff against, and Guarantor hereby assigns, conveys, delivers, pledges, and transfers to lender all of Guarantor's rittd, tllle and Interest in and to, all deposits. moneys, securlt6es and other property of Guarantcx now or hereafter In the possession of or on deposll wfth lender, whether hetd In a general or special accOUll or deposit, whether held joinIfy wtth someone else, or whethef held for safekeeping or otherwise, excluding however all IRA, KSOltt. and trust accounts. Every such seclWtty Interest and right of setoff may be exercised without demand upon or notice 10 Guarantor. No security Interest or right of setoff shan be deemed to have been waived by any act or conduct on the part of lender or by any ~ect to exercfse such right of setoff or to enforce such security Interest or by any delay in so doing. Every right of seton and security Inlerest shall continue In full force and effect until sooh right of setoff or security interest ts speclftcally waived or released by an Instrument In writing executed by Lender. SUBORDfNAnON OF BORROWER'S DEBTS TO GUARANTOR. Guarantor agrees that the Indebtedness of Borrower to lender. whether now existing or hereafter crealed. shall be pribr to any claim that Guarantor may now have or hereafter acquire against Borrowef. whether or not Borrower becomes Insolvent. Guarantor hereby expressty.subordlnates any claim Guarantor may have against Borrower, upon any account whatsoevet', 10 any claim that lender may now or hereafter have against Borrower. In the event of Insolvency and consequent liquidation of the BSSets of Borrower, through bankruptcy, by an ass9lment for the benefit of creditors, by voluntary liquidation. or otherwise. the assets of Borrower a.ppIlcable to the payment of the claims of both Lencler and Guarantor shaM be paid to lender and shall be first applied by lender to the Indebtedness of Borrower to lender. Guarantor does hereby assVl to lender all claims which II may have or acquire against Borrower or against any assignee or trustee in bankruptcy of 8orro'Ner, provided however, that such assignment shall be effective only for the purpose of assuring to lender fun payment In legal tender of the Indebtedness. If lender so requests, any notes or credit agreements now or hereafter evidencing any debts or obligations of Borrower to Guarantor shell be marked with a legend that the same are subject to this Guaranty and shall be delivered to lender. Guarantor agrees, and lender hereby Is authorized, In the name of Guarantor, from time to time to execute and file financing statements and conllnuatlon statements and to execute such other cIocuments and to take such other actions as lender deems necessary or appropriate to perfect. preserve and enforce its rights under this Guaranty. MISCELLANEOUS PROVISIONS. The following mIscelIan90us provisions are a part of this Guaranty: Amendmentt:. This Guaranty, together with any Related Documents, constitutes the entire understanding and agreement of the partIes as to the matters set forth i1 this Guaranty. No alteration of or amendment to this Guaranty shell be effective unless given In wrttlng and signed by the party or portlos sought to be chorgod or bound by tho oItorollon or _I. AppllClbfe LBw. ThIs Guaranty has been delivered to lender and accepted by lender In the Commonwealth of Pennsylvania. If there Is a lawsuit, Guarantor agrees upon Lender's request to slbmlt to the jurisdiction of the courts of Cumbertand County, COl'lYI"IOOWeatth of Pennsyivanla. lender and Guarantor hereby waive the ril;td to any jury trial In any action, proceeding, or counterclaim brought by either Lender or Guarantor against the other. ThIs Guaranty shall be governed by and construed In accordance with the laws of the Commonwealth of Pennsylvania. Attornep' Fees; Expen.... Guarantor agrees 10 pay upon demand all of lender's costs and expenses. including attorneys' fees and lender's legal expenses, Incurred In comectIon wtth the enforcement 01 this Guaranty. lender may pay someone else to help enforce this Guaranty. and Guarantor shaH pay the costs and expenses of such enforcement. Costs and expenses Inctude Lender's attorneys' fees and legal expenses whother or not thero ill a lawsuR, including attornays' 1000 and logol expenses for bonk"4"CY procoodlngs (and including offorts to modify or vacate any automatic stay or i1junctlon), appeals, and any anticipated post-judgment collection services. Guarantor also shall pay an court costs Bnd such addftlonal fees as rMY be directed by the court. Notices. All noIlca requlred to be given by either party to the other under this Guaranty shan be In writing, may be sent by telefacslmile (unless otherwise required by law). and shal be effecttve when actuaIty delivered or when deposited with a nationalty recognized ovemight courier, or when deposlled In the United States mal, first class postage prepaid, addressed to the party to whom the notice Is to be given at the address shown above or to such other addresses as either party may despte to the oIhet' In wrltlng. If there Is more than one Guarantor, notice to any Guarantor will consUMe notice to an Guarantors. For notice purposes. Guarantor agrees to keep lender Informed at all times of Guarantor's current address. ' Interprel8:Uon. In an cases where there Is more than one Borrower or Guarantor. then all words used i1 this Guaranty In the slngutar shall be deemed to have been used In the plural where the context and constructlon so require; and where there Is more than one Borrower named in this Guaranty or when this Guaranty Is executed by more than one Guarantor, the words -Borrower" and -Guarantor" respectively shall mesn all and any one or more of them. The words -Guarantor: -Borrower,- and -lender" Inctude the heirs, successors, assigns, and transferees of each of them. Caption headings In this Guaranty are for convenience purposes only and are not to be used to Interpret or define the provlsk:lns of this Guaranty. If a court of competent jurtsdk:tton finds any provtslon of this Guaranty 10 be invalid or unenforceable as to any person or circumstance, such fIncNng shall not render that provIsk:ln invalid or unenforceable as to any other persons or clrcl.mSt8nces, and aH provisions of this Guaranty i1 all other respects shall rem&1n valid and enforceable. If any one or more 01 Borrower or Guarantor are corporaUons or partnerships. It Is not necessary for lender to inquire Into the powers of Borrower or Guarantor or of the officers. directors, partners, or agents acting or purporting to act on their behalf, and any Indebtedness made or created In reliance upon the professed exercise of such powers shall be guaranteed under this Guaranty. Waiver. lender shaJI not be deemed to hBve waived any rights lMlder this Guaranty t.IlIess such waiver Is given In writing and sllTled by lender. No delay or omIsskJn on the part of Lender In exercising any right shall operate as a waiver of such right or any other right. A waiver by Lender of a provlskln of this Guaranty shall not pretucfice or constitute a waiver of Lender's rittd otherwise 10 demand strict compllance with that provision or any othar provision of this Guaranty. No prior waiver by lender. nor any course 01 deellng between lender and Guarantor, shall constkute 8 walvet' of any of Lender's right9 or of any of Guarantor's obl9ations as to any future transactklns. Whenever the consent of lender Is required under this Guaranty, the granting of such consent by lender i1 any klstance shaH not constitute conti1uing consent to subsequent Instances where such consent Is requtred and In aD cues such consent may be granted or withheld In the sole discretion of lender. COMMERCIAL GUARANTY Borrower: Trt_1 \IIdoo SorYk:eo (11N: 251153479) 55-B Central Blvd Camp Hili, PA 17011 Lender: eo....... __obu<g, -.. 110_ MaIn OffIc8I'Commercllll Coat c...tw P.O. Box 1599 100 Senate Avenue CIImp HIli, PA 17001-8599 Guarantor: SebII.u.n G. Trlecarl 8 South W.lchl..,. __rg, PA 17065 AMOUNT OF GUARANTY. Thlo I. . _tv 01 poymonl 01100.000% 01 \he Noto, including wltlloulllmlloUon \he prtnclpIIl NolO .mounl 01 Ton Thouuncl & 00/100 Dollo... (.10,OOO,OO~ GUARANTY, For good _ ....._ con.I_. -." G. T_ ('GUlIl'ontor') _utoIy _ uncondRlonolty gworon_ _ prom'''' to pIIy to eo.m.ce BanklHw'risburg, National Auocldon (-Lender.) or 118 order, on demand, In legal tender of the Untted Slatee of Amorlco, 100,000% olth. In__ (a. th.11lIrm I. doIlnod _) 01 T_ V_ _ ('_I to Londor on \he tor... one! condltioM Nt forth In thl. Guaranty. Guarantor..... that l.cInd<<, In Ita .. dlacreUon, mIIY determine which portion 0' Borrower', Indebtedn... to Lender I, covered by ~uarantor" p8f'C*1tage gu....nty. DEFlNmoNS. _ following words shall have Ihe foIlowino IT188llings wilen used In \his Guaranty: Borrower. The word -Borrower" means Tr1scarl Video Services. Gu....ntor. The word -Guarantor" means Sebastian Q. Triscari. Guaranty. The word "Guaranty- means this Guaranty made by GU8lantor for the benefit of Lender dated May 4. 2000. In_.. _ word 'I_s' means Ihe Note, Includino (a) all pmcipoI, (b) 011_', (c) alllale ch8rgea, (d) 011 loan fees end loan charges, and (8) aB cotlectlon costs and expenses relating to the Note or to any collateral for the Note. Collection costs and expenses lncJude without limitation all of Lender's attorneys' tees and Lender's legal expenses, whether or not suit Is Instituted, and attorneys' fees and legal expenses tor bankruptcy proceedings (Including efforts to modify or vacate any automatic stay or Injunction). appeals, and any anticipated post.judgment collection services. Lender. The word -Lender" means Commerce Bank/Harrisburg, National Association, its successors and assigns. Note. The word "Note- means the promissory note or credil agreement dated May 4. 2000, In the oriGinal principal amount o' "0,000.00 from Borrower to Lendet', together with all renewais of. extensions of, modifications of, refinancings of, consoUdaUons of, and substitutions for the promissory note or agreement. Not1co to GUlll'8l1tor: The Note evldencee a revolving line o' credit from Under to Borrower. Rei'" Docunwam. The words "Related DoclJlTl8OlS" mean and include wWlout limitation aN prorri88ory notes, credit agreemenIS, loan agreements, environmental agreements, guaranties, security agreements, mortgages, deeds of trust, and all other Instruments, agreements and documents, whether now or hereafter existing, executed In connection with the Indebtedness. MAXIMUM UABIUTY. The maximum Itablllty o' Gua.-.ntor under thl8 Gu....nty IhaII not exceed at any one time lOD.CIOO% o' the amount o' the Indebtedneu: deacrlbed above, plUI all COItI and expen... o' (a) en'orcement o' this Gueranty and (b) collection and .... o' any col'aleral lecurlng thl. Guaranty. The above Ilmilation on liability is not a resbiction on the amount of the Indebtedness of Borrower to Lender &mler In the aggregate or at any one time. If Lender presenUy I"lo6ds one or more guaranties. 01 hereafter receives additional guaranties from Guarantor. the rights of Lender under all guaranties shall be cumulative. This Guaranty shall not (unless specifically provided below to the contrary) affect or invalidate any such other guaranties. The liability of Guarantor will be the aggregate liability of Guarantor under the terms of this Guaranty and any such other unterminated guaranties. NATURE OF GUARANTY. Guarantor Intends to guarantee at all times the performance and prompt payment when due, whether at maturity or 'earlier by reason 01 acceleration or otherwise, of all Indebtedness wltNn the limits set forUlln the preceding section of thI8 Guaranty. Thl. GU8I'IInty covera a revolving line 0' credit and guarantor underatanda and agr... that IhI8 guarantee ahan be open and contlnuou. until the line of credit I. terminated and the Indebtedneaa I. p11ld In full, .. provkIed below. DURAnON OF GUARANTY. This Guaranty wm l81<e _ wilen recalv8d by ~ wlIhouIlhel18C88SIty '" lVly llCC8pIll/lcO by ~, or lVly notice to Guarantor or to Borrower. and wHI continue In tulllorce until all Indebtedness &hall have been fully and flnaIIy paid and satisfied and all other obIigalklns of Guarantor under this Guaranty shan have been performed in full. Release of any other guarantor or termination of any other guaranty of the Indebtedness shaH not affect the liability of Guarantor under this Guaranty. A revocation recetved by Lend9l' from any one or more Guarantors shall not affect the liability of any remaining GU8IIlrltors und9r this Guaranty. Thl. Guaranty covers a revolving Iln. o' credit and It I. IIpIIClftcally anticipated that 'Iuctuetlona will occur In the ..... amount o' Indobteclrlea owing from Borroww to Lender. GUllf'antor speclllcally acknowledgea and agr... that lIuclu.tlona In the amount of Indebtedn..., even to zero dollara ($ 0.00). ahaU not conatllule a twmlnatlon of 11111 Gu.ranty. Guarantor'. liability under this Gu.......ty ahall "'mlnate only upon (.) ....mln.tkm In wrlUng by Borrower and Lender o. the Ilne of credit. (b) pIIyRM1f1t 0' the Indebtednel. In full In legal lender, and (c) payment In full In legal lender o' all other obligation. or Guarantor under thl. Guaranty. GUARANTOR'S AUTHORIZATION TO LENDER. Guarantor authorizes Lender, wtthouI notice or demand and without IeeMnlng Guarantor'. II.bUlIy under thl. Guaranty. from time 10 time: (a) 10 make on. or more additional aecured or unsecured Joana to Borrower. to I.... equlpmenl or other goods to Borrower, or oth.-wl.. to extend addltlonal credit to Borrowerj (b) to aII.-. compromlH. renew. extwKl. acceler.... or otherwl.. change one or more U..... the Ume 'or pIIyment or other Iernw of the kKIebtecIneIa or any part o. the Indebtedn.., Including Increases and decreII... o' the ..... 0' Interest on the Indebtedneaai exlenalons mIIY be repeated and mIIY be for longer than the original loan term; (c) to take and hold aecurtty for the payment 0' Ihl. Guaranty or 1M Indeblodnels, and uehang.. enforce. waive, .ubordlnate. 'all or decide not to perfect, and r...... any such HCurtIy. with or without the aubatltutlon of new coI.....alj (d) to ........, .ub.Ulut.. agree not to .u.. or deal with any one or more o' BorroWW'. auretl... endora.... or other guarantors on any ....m. or In any manner Lender may chOOHi (e) to determine how, when and what application of paymenta and creellta &hall be made on the Indebtedn".i (I) to apply .uch security and direct the order or manner o' nl. thereo.. Including without limitation. any nonjudicial ..Ie permitted by the term. o' the controlling HCurlly agreement or deed 0' trult, .. Lender In 1m dJacretlon may determlnei (g) to .ell. ....nl..... ".'gn, or gl'llnt partlclpllUon. In all or any part o' the Indebtednelli and (h) to ...Igo or ....narer thl. Gual'llnty In whole or In part. GUARANTOR'S REPRESENTATIONS AND WARRANTIES. Guarantor represents and warrants to Lender that (a) no representations or agreements of any kind have been made to Guarantor which woUd limit or qualify In any way the terms of this Guaranty; (b) this Guaranty Is executed at Borrower's request and not at the request of Lender; (c) Guarantor has full power, right and authority 10 enter Into this Guaranty; (d) the provisions 01 this Guaranty do not confllc1 with or raault in a default under any agreement or other Instrument binding upon Guarantor and do not reautlln a vloAatfon of any law, regulation. court decree or order appIicatAe to Guarantor; (e) Guarantor has not and will not, without the prior written consem of Lender, sell, lea8e, assigl, encumber, hypothecate, transfer, or oth8lwlse clisp)s8 of all or slbstantially all of Guarantor's assets, or any interest therein; (I) upon Lender's request, Guarantor wUl provide to Lender filancial and credit information In Iorm acceptable to Lender, and all such ftnandaI Information which currenti)' has been, and all future filancial information whk:h will be provided 10 Lender is and wll be true and correct In aU material respects and talrty present the flnBflCiaI condition of Guarantor as of the dates the flnanclallnformatlon Is provided; (g) no material adverse change has occurred In Guarantor's financial condition since the date of the most recent financial statements provided to Lender and 00 event has occurred which may materially adversely affect Guarantor's financial condiUon; (h) no liUgatlon, claim. Invesligation, administrative proceeding or similar action (including those for unpaid taxes) against Guarantor Is pending or threatened; (i) Lender has made no representation 10 Guarantor as 10 the creditworthiness at Borrower; and (j) Guarantor has established adequate means 01 obtaining Ircm Borrower on a continuing ba&1s lnIom1allon regarding Borrower's financial condition. Guarantor agrees to keep adequate!y InIormed from such means of any lacts, events, or circumstances wh6ch might In any way affect Guarantor's risks under this Guaranty. and Guarantor further agrees that Lender shall have no obligation to disclose to Guarantor any information or documents acquired by Lender In the course of Its relationship with Borrower. GUARANTOR'S WAIVERS. Except as prohIbIt8d by .ppllcebla law, Guerenlcr wolves lVly ~l to require ~ (e) 10 """,",ue lending mcnay or to extend other credit to Borrower; lb) to make any presentment, protest, demand, or notice of any klncl, Including notice of any nonpayment 01 the Indebtedness or of any nonpayment related to any collateral, or noUce of any action or nonactIon on the part of Borrower, Lender. any surety, endorser, or other guarantor in comectlon with the Indebtedness or In connection with the creation 01 new or addItlonaI loans or obligations; (c) to resort tor payment or to proceed dlrecUy or at once against any person, including Borrower or any other guarantor; (d) 10 proceed directly against or exhaust any collateral held by Lender trom Borrower, any other guarantor, or any other person; (e) to give notice of the terms, time, and place of any public or private sale of personal property security held by Lender trom Borrower or to comply with any other applk:able plOvislons of the UnHorm Corrmerclal Cooe: (f) to pursue any other remedy wlthin Lender's power; or (g) to coomit any act or omission of any kind, or at any time, with respect to any 05-04-2000 Loan No 2862095 COMMERCIAL GUARANTY (ContInued) matter whatsoever. If now or hereafter (a) Borrower shall be or become Insolvent, and (b) the Indebledness shall not at aU timee until paid be fuIy secured by ooMateraI pledged by Borrower, Guarantor heleby forever waives and relinquishes In favor of Lender and Borrower, and their reapective SUCC8SSOf1l, any claim or right 10 payment Guarantor may now have or hereafter have or acquire against BofTower. by subrogation or otherNis8. so that at no time shall Guarantof be or become a -creditor" of Borrower wtIhIn the meaning of 11 U.S.C. section 547(b). or any sucx:eesor provision of the Federal bankru~ laws. GuaranIOr' also wBlves any and all rights or defenses ariBlng by reason of (a) any Mone actIonM or Manti-deflci8ncyM law or any other law which may prevent Lender from bringing any action. Inctudlng 8 dalm for deficiency, 8gU1st Guarantor, before or after Lender's corrmencement or COft1)Ietion of any toraclosUfa action, alIhar Judicially or by axarclse ofa powar of_; (b) OIly oIactlon of remedlas by Landar which daslroys or olhaIwlse adva<saly affects Guarantor's subrogation rights or Guarantor's rights to proceed against Borrower for reimbursement, lncWdng without limitation, any loss of rights GUllIantor may suffer by reason of any iaw limiting, quatlfylng, or discharging the Indebtedne&aj (e) any di8abIIty or other defense of Borrower, of any other guarantor, or of any other person, or by reason of Ihe cessation of 80rr0we(s UabiNty from any cause whaIsoeYer, other than pe.yment in lull In Iagsl_, oflhe _s; (d) any rlghI \0 c:laln1 dlsoharga oflhe ,_ on tha basis 01 unjuallllad Impalnnant of OIly collateral lor tha Indebledness; (e) any statute of limtations, If at any time any action or suit broLVlt by Lender against Guarantor Is commenced there Is outstanding Indebtedness of Bofrowef to Lender which Is not barred by any applicable statute of Imitations; or (f) any defen888 given to guarantors at law or An equity oIhar than ""'"'" payment and partormance 01 tha 1_, K pay"- Is mads by Borrowar, whathar vollOllarly or otha<wIse, or by any th.,d party, on the Indebtedness and thereafter L.ender Is forced to remit the amoWlt of that payment to Borrower's trustee In bankruptcy or to any siTilar person LIlder any federal or state bankruptcy law or saw 'or the relief of debtors, the Indebtemess shall be considered unpaid '01 the purpose o. enforcement 01 this Guaranty. Guarantor further waives and agrees not to assert or c&alm at any time any deductions to the amount guaranteed under this Guaranty for any claim of setoff, counterclabn, counter demand, recoupment or similar righi, whether such clain, demand 01 right may be asserted by the Borrower, the Guarantor, or both.' I GUARANTOR'S UNDERSTANDING WITH RESPECT TO WAIVERS. Guarantor warrants and agrees that each of the waivers set forth above is made with GuaranlOr's full knowledge of its significance and consequences and that, under the circumstances, the waivers are reasonable and not contrary to pubjlc polley or law. "any such waiver Is determined to be contrary to any applicable law or public policy, such waiver shall be effective only to the extent permitted by taw or public policy. LENOER'S RIGHT OF SETOFF, In addition \0 a/Illans upon and r1(11Is of setoff against tha moneya, oecur/Uas or othar property of Gusranlor g1van \0 Lender by law, Lendef shaU have, with respecl to Guarantor's obItgatlons to Lender under this Guaranty and to the extent permiIted by law, a contrBCtual security Interest In and a rVrt of setoff agailst. and Guarantar hereby assigns, conveys, deUvers, pledges, and tranafera 10 Lender all of Guarantor"s righi, DUa and Intar86t An and to, all deposits, moneys, securItie8 and other property of Guarantor now or hsntafter In the poB8easlon of or on deposit with Lender, whelher held In . general or epectaI account or deposit, whether held jointly with someone else, or whether held for safekeeping or otherwise, excluding however aM IRA, Keogh, and trust accounts. Every such security nteresl and right of setoff may be exercised without demand upon or notice 10 Guaranlor. No security 6nteresl or right of setoff shaH be deemed to have been waived by any act or conduct on the part of Lender or by any neglect 10 exercise such right of setoff or 10 enforce such security Antarest or by any delay In 80 doing. Every right of setoff and security interest shaH cootinue 6n fiM force and effect until such rVrt of setoff or security Inlareslis specifically waived or released by an Inslrument In writing executed by LencIer. SUBORDINATION OF BORROWER'S DEBTS TO GUARANTOR. Guarantor ograss that tha 'ndabladness of Borrowar \0 Landar, wha/har now existing or hereafter created, shall be prior 10 any claim that Guarantor may now have or hereafter acquire against Borrower, whether or not Borrower bacomas Insolvent, Guarantor ha<aby axpraosly subordinates any clolm Guarantor may have against Borrower. upon OIly account whatooaver, 10 any claim that Lender may now or hereafter have aganst Borrbwer. In Ihe event of Insolvency and consequent liquidation of Ihe aea. of Borrower, throogh bankruptcy, by an assignment lor tha banefll 01 cradltora, by volunlaly liquidation, or _, tha .._ of Borrowar appIlca/lIa \0 tha payment 01 tha claims of both Landar and Guarantor shal be paid \0 Landar and shal be first applied by Landar 10 tha 1_ 01 Borrower \0 Lender. Guarantor does hereby assign to Lender all claims which II may have or acquire against Borrower or against any assignee or trustee In bankruptcy oIllorrower; provided however, that such assignment a/1a/I ba effactlva only lor tha purposa 01 ..surtng \0 Landar lull payment In lagaI tender of the Indebtedness. If Lender so requests, any notes or credll agreements now or hereafter evidencing any debts or obligations of Borrower 10 Guarantor shaU be marked with a legend that the same are sut)tect to this Guaranty and shall be delivered 10 Lender. Guarantor agrees, and Lender hereby is aulhorlzed, In the name of Guarantor, from tme k:t time 10 execute and file financing statements and continuation statements and to execute such other documenIs and to take such other actions as Lender deems necessary or appropriate to perfect, preserve and en'orce Its rights under this Guaranty. MISCELLANEOUS PROVISIONS. Tha following mlscallllnaous provisions are a part of this Guaranty: Amendmentl. This Guaranty, together with any Related Oocumenls, constllu1e8 the entire understandilg and agreement of Ihe parties as to the matters set forth In ttUs Guaranty. No atleralion of or amendment 10 this Guaranty shaH be effective untess given In writing and signed by the party or parties SOlVlt 10 be charged or bound by the alleralion or amendment. Appllcab1e Law. This Guaranty has been delivered 10 Lender and accepted by Lender In the Conmonwealth of Pennsylvania. II there 18 a lawsull, Guaranlor agrees upon Lender's requesl to submll to the jurlsdlc1lon of the courts of CurnbeIIand County, Commonwealth of P8Msytvania. L.ender and Guarantor hereby walvellle right to any Jury trial In any action, proceeding, or countarclain brot01t by either L.ender or Guaranlor against the other. This Guaranty shall be governed by and construed in accordance with the laws of the Commonwealth of Pennsylvania. Attorney.' F...; Expenea. Guarantor agrees to pay upon demand aM of Lender's costs and expenses, including attorneys' f8El8 and Lender's legal expenses, Incurred In COMeCtion with the enforcement of this Guaranty. Lender may pey someone else 10 help enforce this Guaranty, and Guarantor shall pay the costs and expenses of such enforcement. Costs and expenses r.cIude Lender's attorneys' fees and legal expens88 whathar or net there Is 0 lawsuit, including ollomayS' laos 000 lagaI axpans.. lor bankr_ proceadings (and including alforts \0 modlty or vacate any automatic stay or injunction), appeals, and any 8ntic41Bted post-judgment collection services. Guarantor also shall pay au court costs and such additional fees as may be directed by the court. Notlcee. All notice& required to be given by either party to the other under this Guaranty shaH be 6n writing, may be sent by leIefacUni1e (unless otherwise required by law), and shall be effective when actually delivered or when deposited with a naUonalIy recognized overnJc;.Clt courier, or when deposited In the United States maN, first class postage prepaid, addressed to the party to whom the notice 1& 10 be given at the address shown above or to such other addresses as either party may desv.te 10 the other In wriaw.g. "there is more than one Guaranlor, notice 10 any Guarantor wll constitute notice to all Guarantors. For notice purposes, Guarantor agrees to keep l.ender Informed at a111imes of Guarantor's current addrB5S. Interpretation. In all cases where there Is more than one Borrower or Guarantor, then all words used in this Guaranty 6n Ihe singWlr shall be deemed to have been used in Ihe plural where Ihe oonIext and construction so require; and where there ts more than one Borrower named in this Guaranty or when this Guaranty Nt executed by more than one Guarantor, the words -Bofrower" and -Guarantor" respectiYeIy shall mean aN and anyone or more of them. The words -Guarantor,- -Borrower,- and -Lender"' Include the heirs, successors, assigns, and transferees 01 each of them. Caption headings In this Guaranty are tor oOnvenience purposes only and are not to be used to Interpret or define the provisions 01 UlIs Guaranty. If a court of competent juriadlctkln flncla any provision of this Guaranty to be invalid or lI'l8f'lforceable as to any person or circumstance, such flndhg shall not render that prov!slon invalid or W18nforceabIe as to any o1her persona or circumstances, and all provisions of .. Guaranty In all other respects shaH remain valid and enforceable. "anyone or more of Borrower or Guarantor are corporations or partnerships, II is not necessary for Lender 10 inquire Into the powers 01 Borrower or Guarantor or of the officers, directors, partners, or agents acIIng or purporting to act on their behetf, and any Indebtedness made or created In reliance upon the professed exerctse of such powers shaD be guaranleed under this Guaranty. Waiver. Lender shall not be deemed to have waived any ~ts LIlder this Guaranty llI'Has such waiver Is given In wriIing and signed by Lender. No delay or omission on the pert of Lender in exercising any r1gh1 shaD operate as a waiver of such right or any other righl. A waNer by Lender of a provision of this Guaranty shaH not prejudice or constitute a waiver of L.ender's right otherwise 10 demand strlcl corqJIiance with thai provision or any other provision of this Guaranty. No prior waiver by Lender, nor any course of dealing between Lender and GuaranIor, shall constitute a waiver of any of L.ender's rights or of any of Guarantor's obligations as to any fuIure transactions. VVhenever the consent of Lender is required under this Guaranty, the granting of such consent by Lender 6n any Instance shall not: constltute oon1InuIng consent to subsequent Instances where such consent Is required and In aH cases such consent may be granled or wlthhek:lln the sole discretion of Lender. 05-04-2lM!O " Loan No 2862095 COMMERGIAL GUARANTY , (Continued) Page 3 CONFESSION OF JUDGMENT, GUARANTOR HEREBY IRREVOCABLY AUTHORIZES AND EMPOWERS ANV ATTORNEY OR THE PROTHONOTARV OR CLERK OF ANY COURT IN THE COMMONWEALTH OF PENNSYLVANIA, OR ELSEWHERE, TO APPEAR AT ANY TIME FOR GUARANTOR AFTER A DEFAULT UNDER THIS GUARANTY, AND WITH OR WITHOUT COMPlAINT FILED, PS OF ANY TERM, CONFESS OR ENTER JUDGMENT AGAINST GUARANTOR FOR THE ENTIRE PRINCIPAL BALANCE OF THIS GUARANTY, All ACCRUED INTEREST, LATE CHARGES, AND ANY AND ALL AMOUNTS EXPENDED OR ADVANCED BY LENDER RELATING TO ANV COLLATERAL SECURING THE INDEBTEDNESS TOGETHER WITH INTEREST ON SUCH AMOUNTS, TOGETHER WITH COSTS OF SUIT, AND AN ATTORNEY'S COMMISSION OF TEN PERCENT (10%) OF THE UNPAID PRINCIPAL BALANCE AND ACCRUED INTEREST FOR COlLECTION, BUT IN ANY EVENT NOT LESS THAN FIVE HUNDRED DOllARS ($500) ON WHICH JUDGMENT OR JUDGMENTS ONE OR MORE EXECUTIONS MAY ISSUE IMMEDIATELV; AND FOR so DOING, THIS GUARANTY OR A COPY OF THIS GUARANTY VERIFIED BY AFFIDAVIT SHALL BE SUFFICIENT WARRANT, THE AUTHORITY GRANTED IN THIS GUARANTY TO CONFESS JUDGMENT AGAINST GUARANTOR SHALL NOT BE EXHAUSTED BY ANY EXERCISE OF THAT AUTHORITY, BUT SHAll CONTINUE FROM TIME TO TIME AND AT All TIMES UNTIL PAYMENT IN FULL OF All AMOUNTS DUE UNDER THIS GUARANTY, GUARANTOR HEREBY WAIVES ANV RIGHT GUARANTOR MAV HAVE TO NOTICE OR TO A HEARING IN CONNECTION WITH ANY SUCH CONFESSION OF JUDGMENT, EXCEPT ANY NOTICE AND/OR HEARING REQUIRED UNDER APPLICABLE LAW WITH RESPECT TO EXECUTION OF THE JUDGMENT, AND STATES THAT EITHER A REPRESENTATIVE OF LENDER SPECIFICAllV CAllED THIS CONFESSION OF JUDGMENT PROVISION TO GUARANTOR'S ATTENTION OR GUARANTOR HAS BEEN REPRESENTED BV INDEPENDENT LEGAL COUNSEL EACH UNDERSIGNED GUARANTOR ACKNOWLEDGES HAVING READ ALL THE, PROVISIONS OF THIB GUARANTY AND AGREES TO ITS TERMS. IN ADOITION, EACH GUARANTOR UNDERSTANDS THAT THIS GUARANTY IS EFFEcnvE UPON GUARANTOR'S EXECUTION AND DEUVERY OF THIS GUARANTY TO LENDEIl AND THAT THE GUARANTY WILL CONTINUE UNTIL TERMINATED IN THE MANNER SET FORTH IN THE SECTION TITLED 'DURATION OF GUARANTY,' NO FORMAL ACCEPTANCE BY LENDER IS NECESSARY TO MAKE THIS GUARANTY EFFEcnvE. THIS GUARANTY IS DATED MAV 4, 2000. THIS GUAIlANTY HAS BEEN SIGNED AND SEALED BV THE UNDERSIGNED. GUARANT~~ ~ ~ ':'';':':':';':':', -,,:.:,.:.,:.:.x.;:.;:.y,;.:.,:.,' ...:.,:-,;.;.,:."",,,;,.' .,.%".,:~, :,.v,:-':<<':v' :.".'.-,,:.:,-.:,,'- .:-;;:":.,:<~:":.,{-,.,:-:,:,,,,.:,,-,;;.: X """g' ............,., ............L,. ... ......,.,....,.... (SEAL) .)';::::..{_.,::....(.:.i::,.:..:.\.:..... ." ..... ". . ...:::.-1.:...:. ..+..:p:.,..:/ .. .,'" ,.... ....:'"'.~:;;::.::.,....:.....::;:..:,::.::::,i::::::'::: 111 A, Spec~ :~~~~ X WI_ INDIVIDUAL ACKNOWLEDGMENT PI} (!wn Bu?UH,JD On this, tho 4 H... dIly of rn~ ' 20 00, boforo me {!WC~L fl. fiE HII\J6 ,the u.-olgned NoIary PubItc, porsonoIIy llIlP88'Od A. Speck, k.-n to me (or sollsfoctorly ) to be tho porson _ nome Is subscribed to tho within 1110_ and ocknowIodgod thoI he or she oxocutod tho oomo for tho purpos~.. contained, ~ In """- whenIof,l_ MI my hond.... 0_ _I, {] /J ' ~ -' V",/ho. 7 Notary and for tho Slata of Pf/ STATE OF I )8S COUNTY OF LASER PRO, Reg. U.S. Pat. & T.U. Off.. v.... 3.28c (c)2000CA PtoS~.Inc. AIlI\ghtllI8l8fYed. (PA-E20 E3.270l5TRIOO.LNC20.0Vl) Notal1al Sui ChofVIA,__....... _Top.. vol1lCollo<y ..,~ElopkooJuly211, 2002 Member, .......... AIIoaIIIIDn 01 HotIrtes .;. ) 05-04-2000. , Loan No' 286209s COMMERCIAL GUARANTY , (Continued) Page 3 CONFESSION OF JUDGMENT, GUARANTOR HEREBV IRREVOCABLY AUTHORIZES AND EMPOWERS ANY ATTORNEY OR THE PROTHONOTARV OR CLERK OF ANY COURT IN THE COMMONWEALTH OF PENNSYLVANIA, OR ELSEWHERE, TO APPEAR AT ANY TIME FOR GUARANTOR AFTER A DEFAULT UNDER THIS GUARANlY, AND WITH OR WITHOUT COMPlAINT FILED, AS OF ANY TERM, CONFESS OR ENTER JUDGMENT AGAINST GUARANTOR FOR THE ENTIRE PRINCIPAL BALANCE OF THIS GUARANTY, ALL ACCRUEO INTEREST, LATE CHARGES, AND ANY AND All AMOUNTS EXPENDED OR ADVANCED BY LENDER RELATING TO ANY COLlATERAL SECURING THE INDEBTEDNESS TOGETHER WITH INTEREST ON SUCH AMOUNTS, TOGETHER WITH COSTS OF SUIT, AND AN ATTORNEY'S COMMISSION OF TEN PERCENT (10%) OF THE UNPAID PRINCIPAL BALANCE AND ACCRUED INTEREST FOR COLLEC11ON, BUT IN ANV EVENT NOT LESS THAN AVE HUNDRED DOLlARS ($500) ON WHICH JUDGMENT OR JUDGMENTS ONE OR MORE EXECUTIONS MAY ISSUE IMMEDIATELV; AND FOR SO DOING, THIS GUARANTY OR A COPY OF THIS GUARANlY VERIFIED BY AFADAVIT SHAll BE SUFFICIENT WARRANT, THE AUTHORllY GRANTED IN THIS GUARANTY TO CONFESS JUDGMENT AGAINST GUARANTOR SHAll NOT BE EXHAUSTED BY ANY EXERCISE OF THAT AUTHORllY, BUT SHAll CONTlNUE FROM 11ME TO 11ME AND AT ALL TIMES UNTIL PAYMENT IN FULL OF All AMOUNTS DUE UNDER THIS GUARANlY, GUARANTOR HEREBV WAIVES />N( RIGHT GUARANTOR MAY HAVE TO NOTICE OR TO A HEARING IN CONNECTION WITH ANY SUCH CONFESSION OF JUDGMENT, EXCEPT ANY NOTICE AND/OR HEARING REQUIRED UNDER APPUCABLE LAW WITH RESPECT TO EXECUTION OF THE JUDGMENT, AND STATES THAT EITHER A REPRESENTA11VE OF LENDER SPECIFICALL V CAllED THIS CONFESSION OF JUDGMENT PROVISION TO GUARANTOR'S ATTENTION OR GUARANTOR HAS BEEN REPRESENTED BY INDEPENDENT LEGAL COUNSEL EACH UNDERSIGNED GUARANTOR ACKNOWLEDGES HAVING READ ALL THE PROVISIONS OF THIS GUARANTY AND AGREES TO ITS TERMS, IN ADomON, EACH GUARANTOR UNDERSTANDS THAT THIS GUARANTY IS EFFEcnYE UPON GUARANTOR'S EXECUTION AND DEUVERY OF THIS GUARANTY TO LENDER AND THAT THE GUARANTY WILL CONllNUE UNllL TERMINATED IN THE MANNER SET FORTH IN THE SECTION lTTLED 'DURAll0N DF GUARANTY.' NO FORMAL ACCEPTANCE BV LENDER IS NECESSARY TO MAKE THIS GUARANTY EFFECTIVE. THIS GUARANTY IS DATED MAY 4, 2000. THIS GUARANTY HAS BEEN SIGNED AND SEALED BV THE UNDERSIGNED. GUARANTORy /"'? x i)}~j~i"::;;:;:X*'::~::;~~::~~;~:::"ii:::i:::" '''':'':~....;.,' "'::''}fdJt~~M~i~:; (SEAL) ~7~' INDIVIDUAL ACKNOWLEDGMENT STATE OF PA CtA rn8f.RCf-WO I ISS COUNTY OF On this, the if u., day 01 ~ ' 20~, beIo<e me (H~l II, Ft.. rfl1,Aic; , the understgned Notary PubHc, personally Sebaetlan Q. TrllCIri. known to me (or saUsf proven) 10 be the person whose name is _'h__m_~M.m_h_b~_.' In wit.... whereol,lhorelmto HI my hond _ ol1Iclol_l. ~ ' Notary Publk: and for the State of f; lASER PAO, RItIJ. u.s. Pal. & T.M. OfI'., Vet. 3.28e (c)2000 CFI PloSeMc_.Inc. All right. ,.erved.IPA-E20 &3.27 05TR1OO.LN C20.OVlJ _rIoI_ QIeIJIA. FIImOlg. ~_ _lWp.. VcnCouNy "'-EJpho N:t 20, 2002 -,,..'.........._01_ l ' "" 't. Supreme Court #32317 549 Bridge Street New Cumberland, P A 17070 (717) 774-1445 THOMAS A. SPECK, Plaintiff : IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA v. CIVIL ACTION LAW AND EQUITY : NO. 2001-7068 SEBASTIAN G. Z. TRISCARI, Defendant v. KENNETH R. STEPHAN, Additional Defendant VERIFICATION I, SEBASTIAN G,Z, TRISCARI, hereby certify that the facts set forth in the foregoing Answer Counterclaim of Defendant, Sebastian G.Z. Triscari are true and correct to the best of my knowledge, information and belief. I understand that any false statements made herein are subject to penalties of 18 Pa. C.S.A. ~4904 relating to unsworn falsification to authorities. DATED: rJ:JR 0 ,2002 ~j,~~ -SE ASTIAN G.Z. TRIS , ' . I " f- Barbara Sump1e-Sullivan, Esquire Supreme Court #32317 549 Bridge Street New Cumberland, P A 17070 (717) 774-1445 THOMAS A. SPECK, Plaintiff : IN THE COURT OF COMMON PLEAS : CUMBERLAND COUNTY, PENNSYLVANIA v. : CIVIL ACTION : LAW AND EQUITY : NO. 2001-7086 SEBASTIAN G. Z. TRISCARI, Defendant v. KENNETH R. STEPHAN, Additional Defendant : JURY TRIAL DEMANDED CERTIFICATE OF SERVICE I, BARBARA SUMPLE-SULLIV AN, ESQUIRE, do hereby certify that on this date, I served a true and correct copy of Answer, New Matter and Counterclaim of Defendant, Sebastian G.z. Triscari, in the above-captioned matter upon the following individual(s), by United States, First Class Mail, addressed as follows: Mark K. Emery, Esquire 410 North Second Street Harrisburg, PA 17102 Dr. Kenneth R. Stephan 110 Calton Drive Calton, South C Barbara Sumple-Sullivan, Esquire 549 Bridge Street New Cumberland, PA 17070-1931 (717) 774-1445 Supreme Court I.D. 32317 Attorney for Defendant Triscari DATE: June 10,2002 >- C'.J ~ ~ ::J-< h ..:3 0-- LJJ ~. j U~ 7 O~" :a:: :>. u:~ 0... Q~ :..1- r~".~ 00 0 '!:?(J) 6u: .:JZ ".........~ W::L :z tlJdJ I:::tUJ :::> CDe.. l.i... ~~.+ ::a ..,L J \-- N :J LL U 0 0 ~ (") Cl ci z [) c( " ~ ~ ..J Z ..J I- <( :J "' > U) "' .J UJ I 0:: >- tl 11I Iii lJ) - ..J "' Z .. 0. Cl Z ~ ::E c w := :J ii: D- o( U) III 6 .J c( ~ z 0:: III <( c( ~ m w 0:: 1Il c( ::E m B ;:: w z (;:'~.J t ., r:; r ex ? Lcl<;:: THOMAS A, SPECK : IN THE COURT OF COMMON PLEAS Plaintiff : CUMBERLAND COUNTY, PENNSYLVANIA v, : CIVIL ACTION : LAW AND EQUITY SEBASTIAN G.Z. TRISCARI 70'~ Defendant : No, 2001-f-e65'" v, KENNETH STEPHAN Additional Defendant PLAINTIFF'S ANSWER TO COUNTERCLAIM AND NOW, comes the Plaintiff, Thomas A. Speck, by and through his attorneys, The Law Offices of Mark. K. Emery, and files this Answer to Counterclaim, as follows: 69, Admitted upon information and belief. 70, Denied, Counterclaim Defendants residence is located at 1412 Concord Road, Mechanicsburg. 71, Denied as stated, It is admitted that Counterclaim Plaintiff has worked in the video production industry, It is denied to the extent it is averred that Counterclaim Plaintiff has a reputable reputation, 72, Admitted upon information and belief. 73, Admitted upon information and belief. 74. Admitted that in 1999 the parties began discussions regarding developing a video production entity, All other averments are denied, 75. Admitted that the parties agreed to establish a new business entity, Such agreement was memorialized in writing, See Exhibit A from Plaintiff's Amended Complaint. 76, Admitted that the new entity, Triscari Video Services (hereinafter "TVS") would engage in projects such as weddings, meetings and similar type jobs. It is denied that such projects were or are "small" or "less valuable", 77, Admitted. By way of further response Counterclaim Defendant incorporates Exhibits A and B of the Amended complaint. 78. Denied. The Agreement, as memorialized in Exhibits A and B of the Amended Complaint, are writings which speak for themselves, 79, Denied, The Agreement, as memorialized in Exhibits A and B of the Amended Complaint, are writings which speak for themselves, 80. Denied as stated. It is admitted that there was never any commitment as to the number of referrals Counterclaim Plaintiff was to make, However, Counterclaim Plaintiff indicated that he could, and would, generate enough referrals to make the business profitable. Contrary to this misrepresentation, Counterclaim Plaintiff provided only a nominal number of referrals, and failed to act in good faith in providing referrals. 81, Denied, The Agreement, as memorialized in Exhibits A and B of the Amended Complaint, are writings which speak for themselves. 82, Denied, It is specifically denied that the fair market rental of office space was, or is, $1500,00 per month. Further, Counterclaim Defendant provided substantial services which enabled the property to be utilized as an office. 83, Admitted, 84, Admitted, Counterclaim Plaintiff was fully repaid such capital, ahead of schedule. 85, Admitted that Counterclaim Plaintiff paid for utilities, It is denied that the actual charges would be $120,00, 86, Denied, It is specifically denied that it was agreed that the equipment would only be leased to TVS, Rather, the agreement was that the equipment would be transferred to TVS, 87, Denied, It is specifically denied that Counterclaim Plaintiff loaned or otherwise made available any equipment of value, 88, Denied, It is specifically denied that Counterclaim Plaintiff never transferred ownership interest in the assets, 89, Denied, See Exhibits A and B of the Amended Complaint. 90, Admitted that the parties discussed eventually incorporating TVS, It is denied that Counterclaim Defendant was to perform that task, 91. Denied, The business plan and structure was agreed upon prior to the start of the business. 92, Admitted that a partnership was formed, and the fictitious name Tri Video Services was filed with the Department of State. 93. Denied, It is specifically denied that Counterclaim Defendant was in sole control of the business and made all decisions, 94, Denied that Counterclaim Defendant was in sole control of the day-to-day operations and retained all records, 95, Denied that Counterclaim Defendant was solely responsible for the business development efforts, 96, Denied that Counterclaim Defendant was in sole control of the financial operations of the business and retained all records thereto. 97. Denied that Counterclaim defendant was responsible for providing reports to Counterclaim Plaintiff, 98. Admitted that TVS began operations in Spring 2000, The remainder of this paragraph is denied, 99, Admitted that TVS performed services for Messiah College and Everest. 100, Denied that there were complaints regarding the technical work performed by Counterclaim Defendant. 101. Denied that Counterclaim Plaintiff attempted to teach the technical requirements to Counterclaim Defendant. In fact, Counterclaim Plaintiff provided no useful technical assistance, 102, Denied that Counterclaim Plaintiff attempted to work with Counterclaim Defendant in setting up a financial accounting system, It is further denied that the system utilized by the business was not satisfactory, 103, Denied as sated. It is denied that Counterclaim Defendant's salary was not set at a specific rate, On the contrary, it was specifically agreed that Counterclaim Defendant would be paid a yearly salary of $41,5000, 104, Denied, It is specifically denied that Counterclaim Plaintiff offered any useful financial accounting advice, 105, Admitted that Counterclaim Defendants wife, at no cost to the business, set up and implemented the accounting procedures. 106, Denied, It is denied that Counterclaim Defendants wife undertook the financial affairs of the business, It is admitted that his wife assisted in operating the business, under the direction and control of Counterclaim Defendant. Counterclaim Plaintiff was fully aware of this assistance, and never raised any issue or dispute. 107, Admitted that it was agreed that Counterclaim Plaintiff would receive commissions of ten percent for all jobs valued at over $2500,00. Despite such agreement, Counterclaim Plaintiff demanded commissions on all referrals, regardless of the value, 108, Admitted that such payments were made, even when not earned by Counterclaim Plaintiff, 109. Denied, It was specifically agreed that Counterclaim Defendant would receive a set salary of $41,500.00, 110, Denied, See paragraph 109 incorporated herein. 111, Denied, It is specifically denied that Counterclaim Defendant, or his family, was paid any sums of money not due as either salary or reimbursement of expenses or costs. It is further denied that Counterclaim Plaintiff was not aware of these matters or did not consent to them, 112, Denied, 113. Counterclaim Defendant's tax return is a writing, which speaks for itself, and therefore Paragraph 113 is denied. 114, Counterclaim Defendant's pleading is a writing, and matter of record, which speaks for itself, and therefore Paragraph 114 is denied. 115, The financial records are writings, which speak for themselves, Counterclaim Plaintiff's attempt to characterize such writings is denied.. 116. Denied, See paragraph 115 incorporated herein, 117, Denied, See paragraph 115 incorporated herein. 118, Denied as stated, It is admitted that certain payments were made to Counterclaim Defendant and his family, or were made to cover other expenses, It is specifically denied that such payments were not proper and appropriate business expenses, 119, Admitted. 120, Admitted, 121, Admitted, 122, Admitted. 123, Denied, It is specifically denied that Counterclaim Plaintiff is due any monies from TVS, Further, due to Counterclaim Plaintiff's malfeasance, misfeasance and breach of fiduciary duty, the business did not generate profits, 124, Denied as a conclusion of law, 125, Denied as a conclusion of law. 126. Admitted. Such money was particularly necessary due to Counterclaim Plaintiff's failure to provide referrals and other services as agreed. 127, Admitted that a business loan is usually necessary to cover cash flow Issues, 128. Admitted that Counterclaim Defendant did all of the work to secure the line of credit, and Counterclaim Plaintiff reviewed all documents prior to signing, 129, Denied. Counterclaim Plaintiff did not default on the line of credit. Such would be impossible since it was not a personal line of credit, but rather a business line of credit for TVS. The business did default due to Counterclaim Plaintiff's failure to perform as agreed, 130, After reasonable investigation Counterclaim Defendant can neither admit or deny paragraph 130, 131, Admitted only that Counterclaim Plaintiff made payment of Commerce Bank, The remainder of paragraph 131 is denied, 132, Denied as a conclusion of law, 133, Admitted that the business ceased active operations in 2001, Such was necessary due to Counterclaim Plaintiff's misfeasance, malfeasance and breach of fiduciary duty, Counterclaim Defendant was unable to continue operation of the business as Counterclaim Plaintiff was in possession of the necessary equipment. 134, Denied, Counterclaim Defendant attempted to settle the affairs of the business but is unable to at this time due to Counterclaim Plaintiffs failure to cooperate or account for partnership assets, 135. Denied, In fact, Counterclaim Plaintiff has retained possession of a substantial portion of the partnership assets, yet refuses to account for same, 136. Denied as a conclusion of law, COUNT I BREACH OF PARTNERSHIP AGREEMENT 137, Counterclaim Defendant incorporates paragraphs 69 through 136 fully herein by reference, 138, Denied as a conclusion of law, 139, Denied that Counterclaim Plaintiff has correctly calculated the net profit of the business, 140, Denied, Counterclaim Defendant has obtained only what was due him as salary or reimbursement of costs or expenses incurred by him for the business, 141, Denied as a conclusion of law, 142. Denied that Counterclaim Defendant has taken any monies not properly due him. 143, Denied that any expenses are, or should be, contested, 144, Denied as a conclusion of law, 145. Denied, Paragraph 145 is not understandable and therefore not capable of a complete response, and is therefore denied, 146, Denied as stated, It is admitted that Counterclaim Plaintiff made a payment to Commerce Bank. It is denied that such payment was not due as a result of Counterclaim Plaintiff's own malfeasance, misfeasance and breach of fiduciary duty, which caused the financial distress of TVS, Further, as a personal guarantor he is legally obligated to make payment upon TVS lack of capital. 147, Denied as a conclusion of law. 148, Denied as a conclusion of law. WHEREFORE, Counterclaim Defendant respectfully requests this Honorable Court enter judgement for him and against Counterclaim Plaintiff, COUNT II BREACH OF FIDUCIARY DUTY AND MISAPPROPRIATION OF FUNDS 149, Paragraphs 69 through 148 are incorporated fully herein by reference, 150. Admitted that as managing partner Counterclaim Defendant was responsible for the day-to-day management, It is denied that Counterclaim Plaintiff, as a full partner, was not equally responsible for the prudent financial management of the business, 151, Denied as a conclusion of law, 152, Denied as a conclusion of law, By way of further response, Counterclaim Defendant neither misapplied or misappropriated business opportunities or assets, 153, Denied as a conclusion of law, WHEREFORE, Counterclaim defendant respectfully requests this Honorable Court enter judgement for him and against Counterclaim Plaintiff. COUNT III ACTION FOR POSSESSION OF PROPERTY 154. Paragraphs 69 through 153 are incorporated fully herein be reference, 155, Denied, It is specifically denied that Counterclaim Plaintiff is not in possession of a substantial portion of the business assets, Counterclaim Plaintiff has failed and refused to account for these assets, 156, Denied as a conclusion of law, 157, Denied as a conclusion of law, . WHEREFORE, Counterclaim defendant respectfully requests this Honorable Court enter judgement for him and against Counterclaim Plaintiff, Respectfully submitted, THE LAW OFFICES OF MARK K. EMERY By: F~:~ 7 - /t~OJ.,. ,.- Mark K, Emery, Esquire ..' Supreme Court No, Wf37 410 North Seco~reet Harrisburg, PA 17101 (717) 238-9883 VERIFICA TJON I, Thomas A. Speck, hereby verify that I have read the foregoing Answer and that the information contained therein is true and correct to the best of my knowledge, information and berief. I understand that false statements herein a'e subject to the penalties of 18 PaC.S. 94904 relating to unsworn falsificatior to authorities. T~(.7;2L DATE: 7hl../o-1.. I . . . CERTIFICATE OF SERVICE AND NOW, this 15th day of July, 2002, I, Mark K Emery, Esquire do hereby certify that I have served the foregoing Answer to Counterclaim by mailing a true and correct copy via United States first class mail, addressed as follows: Barbara Sumple-Sullivan 549 Bridge Street New Cumberland, PA 17070-1931 LAW OFFICES OF MARK KEMERY ~. ,/--- ~".' ...",,~...;; BY'?~-~ Mark KEmery >- _"1' ?: r.::: -U' <I.. -"- 1-'- 0;' :~)4 U.l~! 8;~ ~2t;-'1 :c l..!.- '=.:- ....; :':') ::j ~t:,l ! n ~n _::1 ";'; ,/..',- ccz Et\:t~ _J l,cJliJ =~ L1'J 0- t..-- -, ""';;' l.l.. r..... :'5 0 C) U . .. ~. -. THOMAS A. SPECK : IN THE COURT OF COMMON PLEAS Plaintiff : CUMBERLAND COUNTY, PENNSYLVANIA v, : CIVIL ACTION : LAW AND EQUITY SEBASTIAN G.Z. TRISCARI Defendant : No, 2001-7086 v, KENNETH STEPHAN Additional Defendant : PLAINTIFF'S MOTION TO COMPEL ANSWERS TO DISCOVERY AND NOW, comes the Plaintiff, Thomas A. Speck, by and through his counsel, The Law Offices of Mark K, Emery, and files this Motion to Compel Answers to Discovery, as follows: 1. Plaintiff served Interrogatories and a Request for Production of Documents upon Defendant Sebastian GZ. Triscari on February 13, 2002, Copies of such discovery requests are attached and incorporated herein as Exhibits "A" and "B", respectively, 2. Defendant has failed and refused to respond to these discovery requests, 3, The undersigned, as new counsel for Plaintiff and an effort to resolve any issues which may have existed as to the applicability of certain of the discovery requests, agreed to amend the discovery requests, 4, Counsel for the parties agreed that such amended would be done by letter. A copy of the letter setting forth the amendments to the discovery requests is attached and incorporated herein as Exhibit "C", ']I I' _6 J' 5, While counsel for Defendant has agreed to respond to the discovery request, no response has been provided, 6, Plaintiff has made repeated requests for a response, but believes and therefore avers that no response will be provided absent an Order of Court. WHEREFORE, Plaintiff respectfully requests this Honorable Court enter an Order requiring Defendant to respond to all outstanding discovery requests within 15 days, or suffer the appropriate sanctions. Respectfully submitted, THE LAW OFFICES OF MARK K. EMERY By: Mark K. mery, Es Supreme Cou , . No, 72787 410 North Second Street Harrisburg, PA 17101 (717) 238-9883 DATE: 1- f-t?d- I ~ ~, " EXHIBIT A I . ... " MAY & MAY, P,C, BY: DONALD R REA VEY, ESQUIRE Attorney J.D. # 82498 3438 TRINDLE ROAD, SUITE 201 CAMP HILL, P A 170 II (717) 612-0102 Fax: (717) 612-0103 ATTORNEYS FOR THE PLAINTIFF, THOMAS A. SPECK THOMAS A. SPECK, Plaintiff, IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA v. SEBASTIAN G.Z. TRlSCARI, CIVIL ACTION - LAW AND EQUITY Defendant. CIVIL ACTION NO. 01-7086 INTERROGATORIES PROPOUNDED UPON THE DEFENDANT, SEBASTIAN G,Z, TRISCARI. BY THE PLAINTIFF. THOMAS A, SPECK DATED FEBRUARY 13. 2002 Plaintiff, Thomas A. Speck, by the undersigned attorney, requests that defendant answer under oath the following interrogatories within thirty days of service in accordance with Pa. RC,P, No. 4005 and 4006, These interrogatories are deemed to be continuing to the extent provided in Pa. RC.P. No, 4007.4: J, INSTRUCTIONS AND DEFINITIONS Please follow these instructions and use the following definitions in answering these interrogatories. Any term or work which is not defined herein has its usual and customary meaning. a. Each of the following interrogatories shall be answered separately and fully in writing. The answers shall be signed and verified by the person making them, Objections, if any, shall be signed by the attorney making them. b, Where knowledge or information in possession of a party is requested, such request includes knowledge of the party's agents, employees, servants, officers, directors, accountants, attorneys (unless privileged), or other persons acting or purporting to act on behalf of the party to whom these interrogatories are addressed. You must make inquiries of your agents, employees, etc., whenever such inquiry is necessary to enable you to answer these interrogatories completely and accurately. I. .... " c. When, after a reasonable and through investigation, you are unable to answer any interrogatory, or any part thereof, because oflack of information available to you, specify in full and complete detail the reason the information is not available to you and what had been done to locate such information. In addition, specify what knowledge or belief you have concerning the unanswered portion of the interrogatory and set forth the facts upon which such knowledge or belief is based, d. Where an interrogatory does not specifically request a particular fact, but where such fact or facts are necessary to make the answer to the interrogatory either comprehensible, or complete, or not misleading, you are requested to include such fact or facts as part of the answer, and the interrogatory shall be deemed specifically to request such fact or facts. e, If, in answering these interrogatories, you encounter any ambiguity, in a question, instruction, or definition, set forth the matter deemed ambiguous and the interpretation you used . . In answenng, f If you assert a privilege, work product immunity, or decline to provide an answer on the basis of some other objection, please: i, identify and describe the document or communication in question; ii, describe the basis for the asserted privilege or objection; iii, identify every person whom the document was sent, or every person present when the communication was made; iv, identifY the present custodial of the document, ifany. Include sufficient facts for the court to make a full determination of whether the claim or objection is valid. g. Unless otherwise indicated, these interrogatories refer to the time, places and circumstances of the occurrences mentioned or complained of in plaintiff s complaint and defendant's answer, new matter, and counterclaim, if currently applicable. h. The pronoun "you" refers to the party to whom these interrogatories are addressed, the party's agents, representatives and, unless privileged, the party's attorneys. Additionally, the pronoun "you" refers to each parent, predecessor, subsidiary, affiliate, and each present and former officer, employee, agent, representative, and attorney of a corporate or other business entity. i. The word "person" means any natural individual in any capacity whatsoever or any entity or organization, including divisions, department, or other units therein, and shall include -2- . . , , '. " without limitation a public or private corporation, partnership, joint venture, voluntary unincorporated association, organization, proprietorship, trust, state, government agency, commission, bureau, or department. j, The term "document" means any medium in which information or intelligence can be recorded or retrieved, and includes, without limitation, the original or copy, regardless of origin and location, of any book, pamphlet, periodical, letter memorandum, (including any memorandum or report of a meeting or conversation), invoice, bill, order, form, receipt, financial statement, accounting entry, diary, calendar, telex, telegram, cable, report, record, contract, study, handwritten note, draft, working paper, chart, paper, print, laboratory record, drawing sketch, graph, index, list, tape, photograph, microfilm, data sheet, or date processing card, or any other written, recorded, transcribed, punched, taped, filmed, or graphic matter, however produced or reproduced, which is or was in your possession, custody or control. k. The term "communication" means any oral or written utterance, notation, or statement of any nature whatsoever between or among two or more persons, by or to whomsoever made, and including without limitation correspondence, documents, conversations, dialogues, discussions, interviews, consultations, agreements, and other understanding. 1. The word "identifY," or words of similar import, when used in reference to: i. a natural individual, requires you to state his or her full name, and present or last known residential address, business address, and telephone number; ii, a corporation, requires you to state its full corporate name, and any names under which it does business, its state of incorporation, the address and telephone number of its principal place of business, and the address and telephone number( s) of all its offices. iii. a business other than a corporation, requires you to state the full name or style under which the business is conducted, its business address, its telephone numbers, and the identity of the persons who own, operate, and control the business; iv, a document, requires you to state its title, its date, the names of its authors and recipients, and its present or last known location and custodian, including any documents prepared subsequent to any time period; v, a communication, requires you, if any part of the communication was written, to identifY the documents which refer to or evidence the communication, and, if any part of the communication was non-written, to identify the person participating in or otherwise present during all or part of the communication, and describe the substance thereof. m. When an interrogatory requires you to "describe," to "state the basis of," or to "state the facts" on which you rely to support a particular claim, contention, or allegation, state in your answer each and every fact and identifY each and every communication or document which you -3- I ' . ..... " contend supports, refers to, or evidences such claim, contention, or allegation. When an interrogatory requires you otherwise to describe or state the facts relating to any particular set of circumstances, act, event, transaction, occurrence, meeting, purchase, sale, agreement, contract, venture, relationship, conversation, representation, communication, or other item of information, state briefly in your answer the facts (including dates and places) relating to such transaction, occurrence, relationship, set of circumstances, etc,; identify any persons who are or were parties thereto or have knowledge thereof; and identifY any communications and documents relating to or evidencing such transaction, occurrence, relationship, set of circumstances, etc, n, The word "Partnership" shall refer to the business entity known as Triscari Video Services (hereinafter "the Partnership" or "Tri- Video Services") which is the subject of the Complaint in this action. Any Interrogatory referring to the Partnership shall require a response to the business activity described in the Complaint regardless of the respondent's belief regarding the legal status of the entity. Ifa question is phrased using partnership language asking for information regarding items such as capital contributions for example, and you contend no partnership relationship existed please disregard the partnership term and answer the question as if no partnership existed, if that is your contention. 0, Tricari Productions shall refer to the business entity known as Triscari Productions, Inc. with a business address of 59 Central Boulevard, Camp Hill, Cumberland County, Pennsylvania. The entity is registered with the Department of State as an incorporated business with it's Chief Executive Officer being Sebastian G.Z. Triscari, the Defendant in the instant litigation. I. Have you ever been sued in Court for any matter related to the conduct of your business affairs? 2. Please list all individuals or entities with whom you had entered into a business relationship or with whom you are currently engaged in a business relationship either as an independent contractor, partnership, or other type of business relationship during the past seven years. Please exclude from this list individuals hired as employees or student interns of either Triscari Productions or Triscari Video Services, as this question is dealt with below. a, for the individuals or entities listed in response to the above question please list the nature of the business relationship and the purpose for which it was entered into. b. for the individuals or entities listed in response to the above question please indicate if there were any complaints regarding the manner in which you conducted the business relationship. 1. If your answer to the above interrogatory is in the affirmative please describe the nature of the complaint, the date of occurrance, and any measures taken to rectify such complaint. Please identify which complaint -4- , . " .".. , .' corresponds whith which business entity or individual. 3, Do you contend that no partnership relation ever existed between you and the Plaintiff? a. If your answer is in the affirmative, please state the facts which form the basis of this contention, 4, Did each partner make capital contributions either by the addition oflabor and materials, monetary sums, or equipment? a. If your answer is in the affirmative, state whether the capital contribution of each partner was received by the Partnership, b. If your answer is in the affirmative, state the amount received from each partner. Please attach any documentation in your possession which would reflect the amounts received, if any, Please include as capital contributions, any contributions oflabor and materials, if any, Please consider this Interrogatory a request to produce such documentation, 5. Please describe your understanding of the nature of the business activity engaged in by you and the Plaintiff? 6. Have you collected any of the accounts receivable or other debts owed to the Partnership? If your answer is in the affirmative please state: a, The amount collected; b. Whether each payment was entered in the partnership records; c. Please consider this Interrogatory a request to produce any and all documentation related to accounts receivable or other debts owed to the Partnership collected by yourself. 7, Have you or has any employee or intern employed by Triscari Productions ever discouraged anyone from using the services of the Partnership? 8, Please identify to the best of your abilities all individuals who called Triscari Productions during the years 1999,2000, and 2001 seeking the type of work performed by the Partnership, a, Please consider this Interrogatory a request to produce any and all documentation related to such calls, including, but not limited to, notes of telephone conversations, and/or call slips. -5- Jr. ~''''' , .. 9. As Thomas Speck's partner in Tri Video Services did you believe that you owed Mr, Speck a fiduciary duty, that is a duty to deal with him fairly in pursuing a common goal without any self-dealing on your part? Regardless of your answer please state: a, your understanding of how one partner is to deal with another partner when engaged in a partnership, 10. Do you believe that Thomas Speck performed his duties in relation to the Partnership in a less than acceptable manner? If your answer to the above Interrogatory is in the affirmative please state: a. The factual basis on which your belief is based; b. Please consider this Interrogatory a request to produce any and all documentation which you believe tends to indicate that Thomas Speck performed his duties in a less than acceptable manner; c, If you were dissatisfied with how Thomas Speck performed his duties why didn't you tenninate the Partnership? 11. Did you believe that part of your obligation under the partnership agreement was to provide referrals to the Partnership from individuals calling Triscari Productions seeking the type of services provided by the Partnership? If you answer is in the negative please describe why you feel this was not part of your responsibility. If your answer to this question is in the affirmative please state: a. Whether or not you, an employee of Triscari Productions, a student intern employed by Triscari Productions, or any individual failed to provide such referral or referrals, please identify any such employees; b, Whether or not instead of referring the work to the Partnership you had the work performed by Triscari Productions either through employees, student interns, or referred the work to another entity; c. Whether or not instead of referring business to the partnership you or employees of Triscari productions discouraged individuals from using the services of the Partnership; d. Please identify any individuals who failed to refer business to the Partnership, discouraged individuals from using the Partnership, or who made any referrals to the partnership; e. Please consider this Interrogatory a request to produce any and all documentation -6- ., . . . , ,. related to referrals from Triscari Productions to the Partnership, including, but not limited to, the identity of individuals who called Triscari Productions seeking the type of work done by the Partnership, notes of telephone conversations with these individuals, and call slips, 12, Please list all of the work or jobs of the Partnership for which you felt you were entitled to a commission either under the partnership agreement or otherwise, For each work or job for which you felt you were entitled to a commission please identify the job or client and the amount of commission claimed and the reasons you felt you were entitled to a conumsslOn, 13, Did you believe you were entitled to a commission for the job entitled "a week long shoot for Messiah College in July" referenced in Exhibit "F" of the Complaint? If your answer to the above Interrogatory is in the affirmative please state: a, Why you believed you were entitled to the commission, specifically describing what actions you took which you believed entitled you to the same. b, Please consider this Interrogatory a request to produce any documentation related to commissions which you have in your possession. 14, Did Steven Spielberg or representatives of his make you aware of his interest in a video tape of an individual claiming to be a disciple ofJesus Christ which was either in the control and custody of the Partnership, yourself, or Triscari Productions? If your answer is in the affirmative please state the following: a. Did you believe that the video tape was the property of the Partnership? b. Did you believe that the video tape had been produced or filmed by Thomas Speck? c, Did you provide a copy of the video tape to Steven Spielberg or his representatives; d. Did you, Triscari Productions, or the Partnership receive compensation, of any type, for the videotape described in this Interrogatory? e. Please consider this Interrogatory a request to produce any documentation related to the event described in this Interrogatory, 15. Have you ever removed property from the business address of the Partnership? If your answer is in the affirmative, please state: a, The item or items removed; -7- ,. .. ~ ' I' ffP I. b. Whether or not you believed the item to belong to the Partnership; c, Whether or not you accounted to the partnership for the removal of the item or items; 16. Did you ever remove, from the business address of the Partnership, an item known as a Canare Patchbay, referenced in paragraph 19 of the Complaint, and/or Alta Centaurus editing equipment, also referenced at paragraph 19 of the Complaint. If your answer to this question is in the affinnative please state the following: a. Did you believe that the item(s) belonged to the Partnership? Ifnot, why not. If you did believe they belonged to the Partnership what is the basis of your belief. b. What are the current whereabouts of the items referenced in this Interrogatory? 17. Please account for the whereabouts of all the items listed in Exhibit "C" of the Complaint. If the item has been sold please list its sales price and to whom it was sold. If the item is no longer in your possession please describe where you believe it is, 18, Did you value the items listed in Exhibit "c" of the Complaint? If your answer is in the affinnative please state the following: a. Did you consider the items to be a capital contribution to the Partnership? If not, why not. b, Did you believe the value listed to be the true value of the items? 1. If not, why did you misrepresent the value of the items? c, Had you previously listed any or all of these items as an asset of any other corporation or business entity, including Triscari Productions? If yes, did you already depreciate the value of these items in that other business entity? 19. Does the partnership agreement between Thomas Speck and yourself provide that Thomas Speck was to be paid a salary of $41,500 per year? If your answer to this Interrogatory is in the negative what was your understanding of how the Plaintiff was to be compensated? If your answer to this Interrogatory is in the affirmative please state: a, Was the Plaintiff ever paid a salary? 1. If yes, what was the amount? 11. If no, why not? -8- ~ ~ II' ~ , I' -' I" 20. Please list the names, and last known addresses, telephone numbers, and job descriptions of all the employees ofTriscari Productions, Inc, and all of the students interning at Triscari Video Productions during the years 1999, 2000, and 2001. 21. Did you believe that the job undertaken by the Partnership to shoot an evening of Barbershop music in Hershey, referenced in Exhibit "F" of the Complaint, was ajob which didn't properly belong to the Partnership? If your answer is in the affirmative please state: a. Whether or not you believed it properly belonged to Triscari Productions or yourself personally, 1. If you didn't believe that the profits from the job properly belonged to the Partnership why did you reference it in the business plan attached to the Complaint as Exhibit "F" as being a job which the Partnership was to undertake? THE LAW FIRM OF MAY & MAY, p,c. Date zl/3/dl By:#'//t' ~ DONALD R. REA VEY, ESQ. Attorney I.D. # 82498 3483 Trindle Road Camp Hill, P A 17011 (717) 731-1970 Attorneys for the Plaintiff, Thomas A. Speck -9- .' I.. I ~ J I' "I ,," CERTIFlCA TE OF SERVICE I, Donald R. Reavey, Esq. an attorney with the law firm of May & May, P.C., does hereby swear and affirm that I served a true and correct copy of the foregoing, Interrogatories Propounded upon the Defendant, Sebastian G.Z, Triscari, by the Plaintiff, Thomas A. Speck Dated February 13, 2002, to the following individual by depositing the same with United States Postal Service via first class mail: Barbara Sumple-Sullivan, Esq. 549 Bridge Street New Cumberland, P A 17070 Fax: (717) 774-7059 THE LAW FIRM OF MAY & MAY, P,C, Date: zit 3/6 t By ~//Z ~ DONALD R. REA VEY, ESQ. Attorney LD. # 82498 3483 Trindle Road Camp Hill, PA 17011 (717) 612-0102 Attorneys for the Plaintiff, Thomas A. Speck -11- I 'l .' .......... I' 'l'..11 EXHIBIT B I .) . I .( " j' ~,., .-' MAY&MAY,P,C. BY: DONALD R. REA VEY, ESQUIRE Attorney LD. # 82498 3438 TRINDLE ROAD, SillTE 201 CAMPHll.L, PA 17011 (717) 612-0102 Fax: (717) 612-0103 ATTORNEYS FOR THE PLAINTIFF, THOMAS A. SPECK THOMAS A. SPECK, Plaintiff, IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA v. CIVIL ACTION - LAW AND EQillTY SEBASTIAN G,Z, TRISCARI, Defendant, CIVIL ACTION NO. 01-7086 REQUEST FOR PRODUCTION OF DOCUMENTS PROPOUNDED UPON THE DEFENDANT, SEBASTIAN G,Z, TRISCARI, BY THE PLAINTIFF, THOMAS A, SPECK DATED FEBRUARY 13.2002 You are hereby requested to produce, pursuant to Pennsylvania Rule of Civil Procedure 4009, the following documents, writings, photographs, or tangible things. Said documents, writings, photographs, or tangible things are to be produced, for the purpose of inspecting, photographing and copying, at the law offices of May and May, P.C., 3483 Trindle Road, Camp Hill, PA 17011, on or before thirty days from the date of service of this Request for Production: I, INSTRUCTIONS AND DEFlNmONS Please follow these instructions and use the following definitions in answering these interrogatories. Any term or work which is not defined herein has its usual and customary meamng. a, Each of the following interrogatories shall be answered separately and fully in writing. The answers shall be signed and verified by the person making them. Objections, if any, shall be signed by the attorney making them. b. Where knowledge or information in possession of a party is requested, such request includes knowledge of the party's agents, employees, servants, officers, directors, accountants, attorneys (unless privileged), or other persons acting or purporting to act on behalf of the party to whom these interrogatories are addressed, You must make inquiries of your agents, employees, f .) . ' ......-l j J ~ I. f. etc., whenever such inquiry is necessary to enable you to answer these interrogatories completely and accurately. c. When, after a reasonable and through investigation, you are unable to answer any interrogatory, or any part thereof, because of lack of information available to you, specify in full and complete detail the reason the information is not available to you and what had been done to locate such information, In addition, specify what knowledge or belief you have concerning the unanswered portion of the interrogatory and set forth the facts upon which such knowledge or belief is based. d. Where an interrogatory does not specifically request a particular fact, but where such fact or facts are necessary to make the answer to the interrogatory either comprehensible, or complete, or not misleading, you are requested to include such fact or facts as part of the answer, and the interrogatory shall be deemed specifically to request such fact or facts, e. If, in answering these interrogatories, you encounter any ambiguity, in a question, instruction, or definition, set forth the matter deemed ambiguous and the interpretation you used . . In answenng. f If you assert a privilege, work product immunity, or decline to provide an answer on the basis of some other objection, please: i. identify and describe the document or communication in question; ii. describe the basis for the asserted privilege or objection; iii, identify every person whom the document was sent, or every person present when the communication was made; iv. identify the present custodial of the document, if any. Include sufficient facts for the court to make a full determination of whether the claim or objection is valid, g. Unless otherwise indicated, these interrogatories refer to the time, places and circumstances of the occurrences mentioned or complained of in plaintiff's complaint and defendant's answer, new matter, and counterclaim, ifcurrentIy applicable. h. The pronoun "you" refers to the party to whom these interrogatories are addressed, the party's agents, representatives and, unless privileged, the party's attorneys. Additionally, the pronoun "you" refers to each parent, predecessor, subsidiary, affiliate, and each present and former officer, employee, agent, representative, and attorney of a corporate or other business -2- I .) . ~ .. I J . '" ,. entity, i, The word "person" means any natural individual in any capacity whatsoever or any entity or organization, including divisions, department, or other units therein, and shall include without limitation a public or private corporation, partnership, joint venture, voluntary unincorporated association, organization, proprietorship, trust, state, government agency, commission, bureau, or department. j. The term "document" means any medium in which information or intelligence can be recorded or retrieved, and includes, without limitation, the original or copy, regardless of origin and location, of any book, pamphlet, periodical, letter memorandum, (including any memorandum or report of a meeting or conversation), invoice, bill, order, form, receipt, financial statement, accounting entry, diary, calendar, telex, telegram, cable, report, record, contract, study, handwritten note, draft, working paper, chart, paper, print, laboratory record, drawing sketch, graph, index, list, tape, photograph, microfilm, data sheet, or date processing card, or any other written, recorded, transcribed, punched, taped, filmed, or graphic matter, however produced or reproduced, which is or was in your possession, custody or control. k. The term "communication" means any oral or written utterance, notation, or statement of any nature whatsoever between or among two or more persons, by or to whomsoever made, and including without limitation correspondence, documents, conversations, dialogues, discussions, interviews, consultations, agreements, and other understanding. 1. The word "identifY," or words of similar import, when used in reference to: i, a natural individual, requires you to state his or her full name, and present or last known residential address, business address, and telephone number; ii. a corporation, requires you to state its full corporate name, and any names under which it does business, its state of incorporation, the address and telephone number of its principal place of business, and the address and telephone number(s) of all its offices, iii. a business other than a corporation, requires you to state the full name or style under which the business is conducted, its business address, its telephone numbers, and the identity of the persons who own, operate, and control the business; iv, a document, requires you to state its title, its date, the names of its authors and recipients, and its present or last known location and custodian, including any documents prepared subsequent to any time period; v. a communication, requires you, if any part of the communication was written, to identify the documents which refer to or evidence the communication, and, if any part of the communication was non-written, to identify the person participating in or otherwise -3- J '. ~. ... ,I . T,. ~~" present during all or part of the communication, and describe the substance thereof m. When an interrogatory requires you to "describe," to "state the basis of," or to "state the facts" on which you rely to support a particular claim, contention, or allegation, state in your answer each and every fact and identify each and every communication or document which you contend supports, refers to, or evidences such claim, contention, or allegation. When an interrogatory requires you otherwise to describe or state the facts relating to any particular set of circumstances, act, event, transaction, occurrence, meeting, purchase, sale, agreement, contract, venture, relationship, conversation, representation, communication, or other item of information, state briefly in your answer the facts (including dates and places) relating to such transaction, occurrence, relationship, set of circumstances, etc.; identify any persons who are or were parties thereto or have knowledge thereof; and identify any communications and documents relating to or evidencing such transaction, occurrence, relationship, set of circumstances, etc, n. The word "Partnership" shall refer to the business entity known as Triscari Video Services (hereinafter "the Partnership" or "Tri- Video Services") which is the subject of the Complaint in this action, Any Interrogatory referring to the Partnership shall require a response to the business activity described in the Complaint regardless of the respondent's belief regarding the legal status ofthe entity, Ifa question is phrased using partnership language asking for information regarding items such as capital contributions for example, and you contend no partnership relationship existed please disregard the partnership term and answer the question as if no partnership existed, if that is your contention, 0, Tricari Productions shall refer to the business entity known as Triscari Productions, Inc. with a business address of 59 Central Boulevard, Camp Hill, Cumberland County, Pennsylvania. The entity is registered with the Department of State as an incorporated business with it's Chief Executive Officer being Sebastian G.Z. Triscari, the Defendant in the instant litigation, 1, Please provide any and all documents and financial records relating to Triscari Productions, including but not limited to, tax returns, the gross receipts for all video contracts transacted by Triscari Productions, and any books indicating the assets and liabilities ofTriscari Productions during 1999,2000, and 2001. 2, Please provide any and all documents and financial records, not previously produced by the Plaintiff, relating to Tri- Video Services, including, but not limited to, tax returns, the gross receipts for all video contracts transacted by Tri- Video Services, and any books or documents indicating the assets and liabilities of the Partnership during 1999,2000, and 2001. 3. Please provide any and all financial records relating to the Defendant, Sebastian G,Z. Triscari and his wife, personally, including, but not limited to, tax returns, personal bank account statements, and statements regarding personal retirement accounts for 1999, -4- . I " . J. j ,.. ,~. '," 2000, and 2001. 4. Each and every document which you have identified in your answers to to Plaintiff's Interrogatories to Defendant. 5. Each and every document whose identification was requested in Plaintiff's Interrogatories. 6. Please produce each and every document related to the formation of the Partnership including personal notes, and agreements not otherwise attached as an exhibit to the Complaint. By: MAY&MAY,P.C. Date 2/1 Y tJ 2 #/' /" ~ --:7 - DONALD R. REA VEY, ESQ. Attorney J.D. # 82498 3483 Trindle Road Camp Hill, P A 17011 (717) 731-1970 Attorneys for the Defendant, Thomas A. Speck -5- , . \ ~ . ... j .J I' ~~ ..... CERTIFICATE OF SERVICE I, Donald R, Reavey, Esq, an attorney with the law firm of May & May, P,C., does hereby swear and affirm that I served a true and correct copy of the foregoing, Request For Production of Documents Propounded Upon The Defendant, Sebastian G.Z. Triscari, by The Plaintiff, Thomas A. Speck Dated February 13,2002, to the following individual by depositing the same with United States Postal Service via first class mail: Barbara Sumple-Sullivan, Esq. 549 Bridge Street New Cumberland, PA 17070 Fax: (717) 774-7059 THE LAW FIRM OF MAY & MAY, P,C, Dated: 2/1J/~2 By #/t'~ DONALD R. REA VEY, ESQ. Attorney I.D. # 82498 3483 Trindle Road Camp Hill, PA 17011 (717) 612-0102 Attorneys for the Plaintiff, Thomas A. Speck -6- I . ~ If. . ~ ' ,,, ;: ~, 'I. oil; EXHIBIT C ," /I ,Ill LAW OFFICES OF MARK K. EMERY 410 North Second Street Harrisburg, PA 171 02 (717) 238-9883 1.\ r' Mark K. Emery, Esquire Fax (717) 238-9884 e-mail memerylaw@aol.com June 14, 2002 Barbara Sumple-Sullivan, Esquire 549 Bridge Street New Cumberland, PA 17070 RE: Speck v, Triscari No, 2001-7086 (Cumberland) Dear Barbara: Pursuant to our prior conversation, I ask that you provide the following documents or information, While I believe much of this is covered in the discovery previously served, I ask that any additional information or documents be provided without the need for a more formal request. Some requests are also made in response to your Answer and Counterclaim. I will certainly provide the same courtesy, 1, A list of all Partnership items, assets or materials in Mr. Triscari's possession or which had been in his possession since the removal of the Partnership from their original office space, This would include but is not limited to the Alta Centaurus and CANARE patchbay, This should include an identification of whether Mr, Triscari has utilized such assets, and if so the income derived from such use, In the event any asset has been sold or otherwise transferred or relinquished, this should include the date, manner and income derived, if any. I ask that for ease of reference the response refer to the Exhibit "C" of the Amended Complaint. If it is your client's position that these assets were "leased" or "loaned" to TVS, I ask that he specifically state the status (i,e, whether it is partnership property of Triscari Productions, Inc, property) for each and every item of inventory, 2. A list of all commissions obtained by Mr, Triscari from Triscari Video Services (TVS), as well as any other income he derived form the company, 3, A list of all referrals he provided to TVS, 1-' ",; ,t~..)l ...... Barbara Sumple-Sullivan June 14, 2002 Page 2 4, A list of all Partnership assets he contributed to the Partnership, as well as a list of any such assets that he continued to list as assets for depreciation purposes on the tax returns of Triscari Productions, Inc, (TPI), 5, An identification of all work performed and income derived by TPI for Charles Schultz, Charlie ''Tremendous'' Jones and Mary Gross. Please provide all work orders, invoices, checks, etc, which support this response, 6, Identify the monthly rent received for the office space either prior to or after the Partnership no longer utilized the space, I ask that any lease agreements or other documents supporting this response be provided, I also ask for the supporting documentation or other basis for your allegation that the fair rental value of the office space is $1500,00, and whether that is based upon the current rate or the value prior to the work performed on the space by Thomas Speck, 7, Identify any repairs or other maintenance performed on the office space during the time the Partnership utilized such space. Please provide any invoices, cancelled checks, etc, , which support this response, 8, Identify any complaints you have or were made by customers or other third-parties regarding the performance of Thomas Speck as managing partner of TVS or of the services provided. This should not be a simple generalization, but rather specific details, including reference to any written documents and the identity of the complaining party, 9, Copies of Mr, Triscari's 2000 and 2001 Federal Income Tax Returns, 10, Copies of TPl's 2000 and 2001 Federal Income Tax Returns, This should include all schedules, and in particular any schedules or worksheets setting forth depreciation of assets, If the depreciation was not fully itemized on the return, I ask that any worksheets, schedules or other internal documentation setting forth the depreciation be provided, 11, Identify all individuals, with name, address and phone number, who were interns, employees, contractors or otherwise provided services for Tiscari Video Productions from January 1, 2000 to the present. . .. '..... ""1- ~ BarDar~SU"mple-Sullivan June 14,2002 Page 3 12, All documents evidencing your allegation that an agreement existed whereby TVP "loaned" or "leased" equipment to TVS, including cancelled checks, invoices or other proof of payment. 13, Identify the accountant, or any other individual who would prepare financial or accounting documents, for TPI from 1999 to the present. 14, Identify the specific basis for the allegation that Mr, Speck is utilizing the equipment in his possession, I have discussed with my client the possibility of placing all of the equipment in his possession in your hands to be held in "escrow" until this can be resolved. This would be solely as a good faith atempt to insure for your client that the equipment is not being used, While he is amenable to such, it is conditioned on the getting straight-forward and complete response to the above If you have any questions regarding this, please contact me, Thank you Very truly yours, LAW OFFICES OF MARK K, EMERY ..~../~~""~/ /......" By: /~/ ./;;;;?~ . Mark K. Emery mls cc: Thomas Speck _ -. I'" :a- " . -.J -:"'.,r CERTIFICATE OF SERVICE AND NOW, this 5th day of September, 2002, I, Mark K. Emery, Esquire do hereby certify that I have served the foregoing Motion to Compel Answers to Discovery by mailing a true and correct copy via United States first class mail, addressed as follows: Barbara Sumple-Sullivan 549 Bridge Street New Cumberland, PA 17070-1931 LAW OFFICES OF MARK K. EMERY BY:~~ Mark K. E t.' . ,... t ... ."", ... 0 C) 0 c ; ~'.) -n :,/) " =.; I ""L - , J C " -'::? --Tl '1 J ?~ , In f'".) '- , =-.~4 , S:J -< ( ..i"'J --< THOMAS A. SPECK, Plaintiff vs. IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW SEBASTIAN G.Z. TRISCARI Defendant 01-7086 CIVIL vs. KENNETH STEPHAN, Additional Defendant IN RE: PLAINTIFF'S MOTION TO COMPEL ORDER AND NOW, this I'.. ., day of September, 2002, a brief argument on the within motion to compel is set for Thursday, October 3,2002, at 3:00 p.m. in Courtroom Number 4, Cumberland County Courthouse, Carlisle, P A. BY THE COURT, Mark K. Emery, Esquire For the Plaintiff /14 Barbara Sumple-Sullivan, Esquire For the Defendant - ~ 1~/7'o,). cr 9--- :rlm \fit"lVi\l'\S~,!N3d \.it Ir ~,' ~',' ,,\ ,~r'.I!"t:) I ,\. \1,1 \ 1.,\' ",--":':'1, ." . ....' \.... ,-,' ,'.... .' ,~ i 2 :5 \:1"1 L I d3S (,,0 ^'cl'11C, i L_'. :;0 j:)'l~,~(}-{i :'J'-;: ~ 3 THOMAS A. SPECK, Plaintiff IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYL VANIA v. CIVIL ACTION - LAW AND EQUITY SEBASTIAN G. Z. TRISCARI, Defendant NO. 2001-7086 CIVIL TERM v. KENNETH STEPHAN Additional Defendant IN RE: DEFENDANT'S PRELIMINARY OBJECTIONS Before HOFFER. p, J,. HESS. J, and OLER, J. ORDER OF COURT AND NOW, this I~ ~ay of N rV ,2002, pursuant to the opinion filed this date, the preliminary objections of the defendant are denied. / Mark K. Emery, Esquire 410 North Second Street Harrisburg, Pa 17101 For the Plaintiff / Dr. Kenneth R. Stephan 110 Calton Drive Calton, South Carolina 29341 >l~~ 11(* - /I./9-0~ / Barbara Sumple-Sullivan, Esquire 549 Bridge Street New Cumberland, PA 17070-1931 For Defendant Triscari , , :r".,ln8 :1 /~ :t: \ j c) \ i.1J>l THOMAS A. SPECK, Plaintiff IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA v. SEBASTIAN G. Z. TRISCARI, Defendant NO. 2001-7086 CIVIL TERM v. KENNETH STEPHAN, Additional Defendant IN RE: DEFENDANT'S PRELIMINARY OBJECTIONS Before HOFFER. p, J.. HESS, J, and OLER. J. HOFFER, P.J.: Before the Court are the preliminary objections of the defendant, Sebastian Triscari, to the Complaint of the plaintiff, Thomas Speck. Plaintiff Speck brings this action in law and equity seeking a dissolution, and an accounting with regard to the partnership formed between himself and defendant Triscari, known as Triscari Video Services ("Tri- Video Services"). In addition, the plaintiff seeks the appointment of a receiver to oversee the assets of Tri- Video Services. He also seeks relief under the following remedies: breach of fiduciary duty, tortious interference with prospective business relations, commercial disparagement, fraud, misrepresentation, and negligence. FACTUAL PLEADINGS On January 2, 2000, plaintiff Speck and defendant Triscari entered into a partnership agreernent for the purposes of establishing Tri- Video Services. The plaintiff and defendant were equal partners at the time the original partnership agreement was signed, each with a 50% share in the venture. The business was located in Camp Hill, and was intended to provide videotaping services for weddings, recitals, school activities, sporting events, and other special events. Triscari's other business, Triscari Productions, was apparently supposed to refer requests for videotaping of these types of events to this new venture. Pursuant to the partnership agreement, plaintiff Speck was to pay for materials and provide labor for the renovation of the office location. In addition, he was to set up all equipment at the location, including computer systems and office furniture. Speck is claiming that these contributions amount to approximately $5,000. Defendant Triscari was to set up the partnership's web site, provide technical services, and maintain the video equipment. The value of setting up the web site was estimated at approximately $3,000 with an $80 service fee, and the video equipment maintenance was valued at approximately $5,000. On February 29, 2000, the plaintiff and defendant entered into a revised partnership agreement. The agreement sets out equal shares for both partners, but names plaintiff Speck as managing partner. Both partners were to receive 10% commissions for referrals of work to the partnership. (The language of the agreement indicates that Triscari will receive a 10% commission for productions over $2,500 generated by him. The clause relating to Speck's commission does not include the $2,500 figure.) In addition, defendant Triscari was to contribute video and office equipment to the partnership. He estimated the value of this equipment at $85,600, but plaintiff believes the worth to be closer to $10,000. 2 In October 2000, the partnership added Ken Stephan, D.O., as a 5% partner for the sum of $10,000. On December 14, 2001, Dr. Stephan's entire 5% interest was transferred to Speck, giving him a 52.5% interest in the partnership, and Triscari a 47.5% interest. Plaintiffs Complaint contends that the partnership began to suffer from lack of work by December 2000. As a result, the partnership could not pay the rent for the office space, leased to the partnership by defendant Triscari at a rate of $500.00 per month plus utilities. Plaintiff Speck, with Triscari's approval, then moved the office (including equipment) to an office in his residence. On December 18, 2001, plaintiff Speck filed the Complaint against defendant Triscari, alleging the causes of action listed above. Defendant Triscari has filed two Preliminary Objections. Defendant's Preliminary Objections are as follows: 1. Plaintiff has Failed to Plead in Conformity with Law or Rule of Court (Pa. R.C.P. l028(a)(2)) Defendant claims that plaintiffs Complaint violates Pa. R.c.P. 1019 and Pa. R.C.P. 1022. Pa. R.C.P. 1019(a) states, "The material facts on which a cause of action or defense is based shall be stated in a concise and summary form." Specifically the defendant claims that almost every paragraph of plaintiff s Complaint contains multiple averments, as well as immaterial and irrelevant averments, thereby violating Rule 10 I 9(a). He cites eleven paragraphs from the Complaint, and 3 concludes that the complex averments of evidence and speculation in them and almost every other paragraph (89 total) make the Complaint "difficult, if not impossible, to respond to." In Pennsylvania, a complaint is not rendered defective under subdivision (a) of Rule 1019 merely because plaintiff avers facts not necessary to establish a prima facie case, since such averments, where the adverse party is not prejudiced thereby, will be treated as harmless surplusage. Armstrong Cork Co. v. Kimmel, 2 Pa. D & Cold 175, 54 Lane. L.R 233 (1955). In addition, the Complaint need not cite evidence, but only state those facts necessary for defendant to prepare a defense. Com.. Dept. of Transp. (PennDOT) v. Bethlehem Steel Corp., 380 Aold 1308, Pa. Cmwlth. 1, (Cmwlth. 1977). But, "allegations will withstand challenge under 10 19( a) if (1) they contain averments of all of the facts the plaintiff will eventually have to prove in order to recover, and (2) they are 'sufficiently specific so as to enable defendant to prepare his defense.'" Com.. Dept. of Transo. (PennDOT) v. Bethlehem Steel Corp., 380 A.2d 1308, 1313, Pa. Cmwlth. 1, 12 (Cmwlth. 1977). Defendant claims that there are no facts pleaded to sustain the important issues that need to be pleaded to meet a prima facie statement of the plaintiffs theories of liability. Upon a closer reading, while the Complaint is lengthy and cumbersome, it does assert the facts that the plaintiff will eventually have to prove in order to recover. Pa. RC.P. 1022 states, "Every pleading shall be divided into paragraphs numbered consecutively. Each paragraph shall contain as far as practicable only one material allegation." A Pennsylvania Court of Common Pleas has stated, though, that this rule is 4 not violated by paragraphs which, while lengthy and complex, contain basically but one material allegation, with certain supportive informative subsidiary allegations. Bethlehem Steel Corp. v. Litton Industries. Inc., 71 Pa. D. & C.2d 635 (1974). Each numbered paragraph in the Complaint at hand contains one material allegation, supplemented by informative subsidiary allegations. It is possible for the defendant to respond to these allegations. 2. Plaintiff's Complaint Fails to Specifically Allege Facts Sufficient to Support the Numerous Theories of Liability Or Damages Which Are Pleaded. The defendant contends that the Complaint is deficient in that it does not plead the specific factual basis to underlie the theories of liability or of damages. Specifically, defendant seeks dismissal of the Complaint due to lack of specificity and insufficiency of the pleading in setting forth material facts upon which his causes of action are premised. A. Lack of Specificity 1. Fraud Pa. RC.P. 1019 (b) requires averment of fraud be made with particularity. Pennsylvania courts have expounded on this requirement with regards to particularity. In determining whether complaint avers fraud with sufficient specificity, the court must look to the complaint as a whole and ascertain whether it adequately explains the nature of the claim to defendant so that he may prepare a defense, and whether it is sufficiently specific to convince the court that averments therein are not merely subterfuge; however, plaintiff is not required to plead evidence in the complaint and, therefore, need not allege all of factual details underlying the claim of fraud. Maleski bv Tavlor v. DP Realtv Trust, 5 653 Aold 54 (Cmwlth.1994) (emphasis added). In addition, Subdivision (b) of this rule, requiring that averments of fraud be averred with particularity, merely prohibits allegation of fraud in pleadings as mere legal conclusions without alleging facts to support it and does not require that the complaint be drawn with skill and contain all of its allegations in logical and proper sequence. Borelli v. Barthel, 211 A.2d 11, 205 Pa.Super. 442 (1965). In the Complaint at hand, paragraph 79, when incorporated with the Complaint as a whole (in particular paragraphs 14, 15,31, and Exhibits A, B, F, G), sufficiently alleges fraud by providing enough details by which the defendant can form a defense. 2. Commercial Disparagement Defendant also claims that the allegation for commercial disparagement in the Complaint should be pleaded with more particularity. The elements for an action for commercial disparagement are: (1) The disparaging statement of fact is untrue or that the disparaging statement of opinion is incorrect; (2) That no privilege attaches to the statement; (3) That the plaintiff suffered a direct pecuniary loss as the result of the disparagement. U.S. Healthcare. Inc. v. Blue Cross of Greater Philadelphia, 898 F.2d 914, C.A.3 (1990). Defendant specifically cites paragraphs 32 and 71 when referring to the need for greater specificity in regards to this claim. Paragraph 32 states, "[N]ot only did Mr. Triscari fail to refer business to the Partnership, but . . . he actually discouraged individuals from using the Partnership." Complaint ~ 32. Paragraph 71 states, "Defendant knowingly published false statements regarding the Partnership, intending to 6 cause pecuniary loss, or reasonably should have recognized that such publication would cause pecuniary loss." Complaint ~ 71. These paragraphs, especially paragraph 71, do assert a proper claim for commercial disparagement. While paragraph 32 does not state specifically how the defendant discouraged individuals from using the Partnership, and paragraph 71 does not specify the false statement made by the defendant, both contentions do provide the defendant with enough information by which he can provide a defense. Again, with regard to specificity, "allegations will withstand challenge under 10 19( a) if (I) they contain averments of all of the facts the plaintiff will eventually have to prove in order to recover, and (2) they are 'sufficiently specific so as to enable defendant to prepare his defense.'" PennDOT v. Bethlehem Steel, 380 A.2d at 1313. The plaintiff has asserted such facts he will have to prove in order to recover, and the defendant should be able to form a defense with the information presented. The discovery phase more than likely will bring these facts to light, but in the meantime they are sufficiently pleaded in the Complaint. 3. Damages a. Lack of Itemization Defendant claims that the Complaint is insufficient because it does not itemize the monies due to the plaintiff. Pursuant to Rule 10 19( f), special damages must be pleaded. While it is necessary to itemize damages when pleading special damages, which arise as a consequence of circumstances of a particular wrong, it is not necessary when seeking general damages, which the law presumes follow from the type of wrong complained of. Black's Law Dictionary 394, 396 (ih edition 1999). The plaintiff in the 7 case at hand does not need to itemize the alleged monies due because the loss the plaintiff is claiming naturally resulted from the actions of the defendant of which the plaintiff is complaining. Had the loss not necessarily resulted from the act complained of, those damages would constitute special damages, thus the plaintiff would be required to plead with particularity. Several Pennsylvania courts have found that general damages need not be pleaded with particularity.! Here, in Count V, Breach of Partnership Agreement, the plaintiff pleads that "[a]s a direct and proximate result of the Defendant's breaches of the Partnership Agreement and the Revised Partnership Agreement, the Plaintiff has suffered damage in excess of the jurisdictional limits for arbitration." Complaint ~ 62. In addition, in the plaintiffs count for negligence, he asserts that he suffered loss in eight particular respects. Complaint ~ 89. These assertions, as well as those in all counts, are sufficient to establish damages by which the defendant can form a defense. b. Punitive Damages The defendant also claims that the plaintiff has not set forth a factual basis to support an assessment of punitive damages. Specifically, he contends that even if all 1 See Weaver v. Habecker, 44 Lanc.L.R. 164 (Pa.Com.PI. 1934)(holding that where general damages may be proven without being specially pleaded, averment of facts showing wrong done is sufficient to entitle plaintiff to establish them); Dalton v. South Bethlehem Brewinq Co., 29 Northam. 215 (Pa.Com.PI. 1944 )(finding that general damages which are the ordinary and usual consequences of the wrong done may be proved without being specially pleaded, and that the averment of the facts showing the wrong done together with a general averment of the resulting damage is sufficient to authorize the recovery of such damages as would naturally follow from the act complained of). 8 the alleged facts were admitted to, those acts would not rise to the level of conduct so reckless, wanton, outrageous or severe to award punitive damages. Generally it is not necessary to itemize or specify punitive damages. Haas v. Blue Cross, 12 Pa. D. & C.3d 582,585 (Pa.Com.PI. I 979)(citing 2A Anderson Pa. Civ. Practice S 1019.72). It is nonetheless necessary that there be sufficient factual averments to support such damages and such averments as will inform the defense of what to expect at trial. Id. (citing Joseph v. Naylor, 257 Pa. 561, 101 Atl. 846 (1917); Mazzarella v. Lehigh Foundations, Inc., 49 Pa. D. & Cold 198 (1969); 3 Standard Pa. Pract. S187, 459 (1952 ed.)). Pennsylvania has adopted the view of section 908 of the Restatement, 2d, Torts, that punitive damages may be awarded for "conduct that is outrageous, because of the defendant's evil motive or his reckless indifference to the rights of others." Id. (citing Pierce v. Capital Cities Communications, Inc., 576 F. 2d 495 (3d Cir. 1978), cert. denied, 99 S. Ct. 181 (1978); Chambers v. Montgomery, 411 Pa. 339, 192 A. 2d 355 (1963); Focht v. Rabada, 217 Pa. Superior Ct. 35,268 A. 2d 157 (1970)). In the case at bar, the plaintiff is seeking punitive damages in Counts IV-X. These counts do sufficiently plead punitive damages. For example, in Count VI, Tortious Interference with Prospective Business Relations, plaintiff asserts that by failing to provide referrals defendant Triscari acted with reckless indifference to the rights of the plaintiff. Complaint ~~ 66-68. Setting forth this factual allegation is sufficient to establish punitive damages. It is important to note, though, that whether such damages can be proven is an altogether different matter, to be determined at trial. But, in regards to pleading, punitive damages have been properly asserted. 9 B. Demurrer Defendant is seeking a demurrer on the grounds that the plaintiff has not properly pleaded the material facts upon which to base his causes of action. Specifically, the plaintiff has pleaded three torts: negligence, commercial disparagement, and misrepresentation. 1. Negligence The defendant sets out the elements for negligence, and proceeds to simply argue that the plaintiff has not set forth sufficient facts to sustain such a claim2. In fact, plaintiff establishes early on in the Complaint the duty the defendant owed to the plaintiff through their partnership.3 Other parts of the Complaint, including specifically Count X claiming negligence, then contend that the defendant breached that duty. Therefore, the elements of negligence have been properly pleaded by the plaintiff. 2. Commercial Disparagement The court's response to the defendant's objection with regard to a claim of commercial disparagement is sufficiently covered above in section 2.A.2. 3. Misrepresentation 2 Brief in Support of the Preliminary Objections of Defendant, Sebastian G.Z. Triscari, 1'[2.A). 3 Complaint 1'[6. 4 Brief in Support of the Preliminary Objections of Defendant, Sebastian G.Z. Triscari, 1'[2.C). 10 The defendant sets out the elements for misrepresentation4, and argues that the plaintiff has not established the second element, a fraudulent utterance. In order to show a fraudulent utterance the plaintiff must plead that the false representation was made knowingly, or in conscious ignorance of the truth, or recklessly without caring whether it be true or false. Ft. Washington Resources v. Tannen, 858 F.Supp. 455 (B.D. Pa. 1994). The plaintiff does contend in Count IX specifically that the fraudulent utterances were made knowingly by the defendant. The specificity stated in this Count is sufficient to sustain an assertion of fraudulent utterance. 11 THOMAS A. SPECK : IN THE COURT OF COMMON PLEAS Plaintiff : CUMBERLAND COUNTY, PENNSYLVANIA v. : CIVIL ACTION : LAW AND EQUITY SEBASTIAN G.Z. TRISCARI '10'!.\.1 Defendant : No. 2001 7888 v. KENNETH STEPHAN Additional Defendant MOTION FOR LEAVE OF COURT TO AMEND COMPLAINT AND NOW, comes the Plaintiff, Thomas A. Speck, and files this Motion for Leave of Court to Amend Complaint, as follows: 1. Plaintiff filed his Complaint on December 1 S, 2001, and an Amended Complaint on May 21, 2002. Defendant filed his Answer and Counterclaim on or about June 10, 2002. 2. Plaintiffs Amended Complaint asserts causes of action for, inter alia, breach of fiduciary duty, breach of partnership agreement and misrepresentation, arising out of a failed business partnership between Plaintiff and Defendant. 3. Upon conducting discovery, Defendant has now taken the position that certain items of inventory do not belong to the partnership, but instead belong to Defendant's separate, and wholly owned, corporation. 4. Defendant takes such position despite filing a P,etition for Possession of Collateral in Accordance with Security Agreement Assignment, dated April 25, 2002, in which he states that Commerce Bank was provided a security interest in the collateral of the partnership. (See '1110-12 of Petition. 5. Defendant now takes the position that such items he identified as assets of the partnership in his sworn and verified Petition are not partnership assets, but rather assets of his corporation. 6. Defendant has executed, and Plaintiff will be able to provide at trial, other documents evidencing that such assets are owned, or at least Defendant stated that they are owned, by the partnership. 7. Based upon Defendants new, and conflicting legal position regarding such assets, Plaintiff possesses the basis to assert a claim for fraud against Defendant. 8. Plaintiff has requested Defendant's counsel to Gonsent to the amendment of the Amended Complaint to assert such cause of action, and such request has been refused. 9. Pursuant to Pa. R.C.P. 1033, Plaintiff may amend his complaint to allege a cause of action for fraud. WHEREFORE, Plaintiff Thomas A Speck respectfully requests this Honorable Court grant his Motion for Leave of Court to Amend Complaint. Respectfully submitted, LAW OFFICES OF MARK K. EMERY By: ~~ ./- Mark K. Emery, Esquirl'l Supreme Court I.D. No. 72787 410 North Second Street Harrisburg, PA 17101 (717) n8-9883 Attorney for Plaintiff Date: 7-1-03 CERTIFICATE OF SERVICE AND NOW, this 1st day of July, 2003, I, Mark K. Emery, Esquire do hereby certify that I have served the foregoing Motion for Leave of Court to Amend Complaint by mailing a true and correct copy via United States first class mail, addressed as follows: Barbara Sumple-Sullivan 549 Bridge Street New Cumberland, PA 17070-1931 LAW OFFICES OF MARK K. EMERY BY:~~~_ Mark K. Emery Q ~ -cl ii~ rTirll ~';'Z r:~C' ~;: "', Z(~: -- c; >c ~ c:::~ w o 'Tl c:: r- " ;,:::;:. -~':TI ~-.i (-J ')6 __,J '~r" c'i-;j ",'0 ~-:)m .:.:... :L~ ::0 -< "'" :.JC l.'? '" -..J vi. : IN THE COURT OF COMMON PLEAS : CUMBERLAND COUNTY, PENNSYLVANIA : CIVIL ACTION : LAW AND EQUITY : ~~~ : No. 2001 THOMAS A. SPECK Plaintiff SEBASTIAN G.Z. TRISCARI Defendant v. KENNETH STEPHAN Additional Defendant RULE TO SHOW CAUSE AND NOW, this -r .::r" '1 day of JJ.IBe, 2003, upon consideration of Plaintiffs Motion for Leave of Court to Amend Complaint, as RULE is issued to defendant Sebastian G.Z. Triscari to show cause as to why such Motion should not be granted. Rule returnable fifteen (15) days from date of service. BY THE COURT / -/I J. Distribution: Mark K. Emery, Esquire Barbara Sumple-Sullivan, Esquire Kenneth Stephan 7 1- ()~ (0 vr-w ~ ..> VlNVA1ASNN3d }J.NnO:-:' ilc.~\rl>:i:::8V'1m i'JO:8 Hd L - lnr 80 ,lJ:JvIUi,O:-LCc: :Jlll :10 381.:l:l0-CB11:J Barbara Sump Ie-Sullivan, Esquire Supreme Court #32317 549 Bridge Street New Cumberland, P A !7070 (717) 774-]445 THOMAS A SPECK, Plaintiff IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYL VANIA v. CIVIL ACTION LAW AND EQUITY SEBASTIAN G. Z. TRISCARI, Defendant NO. 2001-7086 v. KENNETH R. STEPHAN, Additional Defendant RESPONSE OF DEFENDANT, SEBASTIAN G. Z. TRISCARI, TO MOTION OF PLAINTIFF TO FOR LEAVE TO AMEND THE COMPLAINT 1. Admitted. 2. Admitted. 3. Admitted with the clarification that Defendant's position has been consistent throughout these proceedings, including the discovery stage, and the entire business venture. Any contrary indication by the Plaintiff is denied. It is asserted that this position was clearly conveyed to the Plaintiff in paragraph 88 of the Counterclaim, which paragraph reads, inter alia: "Counterclaim Plaintiff never transferred any interest in the equipment to the partnership..." This pleading was I filed on June 10,2002. For Plaintiff to make the assertion that this is a new position by the Defendant is false. 4. Admitted in part. Denied in part. It is admitted that Defendant maintains this position despite the filing of the Petition for Possession of Collateral with Security Agreement Assignment dated April 25, 2002. It is denied that Defendant's position is, in any way, inconsistent. When Defendant Triscari became aware of the default by Plaintiff, as managing partner, to satisfy the partnership's line of credit, a line of credit which Defendant had personally guaranteed and from whom a personal demand for payment was being made by Commerce Bank, Defendant Triscari paid in full the entire obligation of the partnership, and additional interest and penalties. In exchange therefore and in an effort to maintain a secured interest in any and all partnership property to defray this oblligation, he secured an assignment of all collateral underlying the Commerce note and DCC security filing. There was no specific listing of specific equipment of the partnership subject to the DCC security interest and, because Dt:fendant was not the managing partner, he was not totally aware of what equipment was involved, purchased or taken from his property when Plaintiff vacated the partnership offices (which offices were owned by Defendant) while Defendant was away. Because Plaintiff had taken physical possession of all property, the Petition sought return of any such property of value while it still had value. At the: time of that filing, the exact nature and extent of equipment in the possession of the Plaintiff was unknown to 2 Defendant and, to some extent, still remains unknown. However, items of value and specific concern were listed in the Petition. Possession by Plaintiff of any property was improper since it was either subject to the partnership security interest or personal property of Plaintiff. No action was taken by the court on the Petition as filed. 5. Denied. By way of further response, paragraphs 3 and 4 of this reply are incorporated herein by reference. 6. After reasonable investigation, Defendant is without sufficient knowledge to establish a reasonable belief regarding the truth of the averment. Therefore, said paragraph is denied. 7. Denied. It is denied that the position of the Defendlmt is either new or conflicting. The remainder of the paragraph is denied as a conclusion of law to which no response is due. 8. Admitted. Plaintiff has threatened he would file fraud charges against the Defendant and Defendant sees no viable cause of aClion in this regard. By way of further answer, it is asserted that Defendant has already consented to Plaintiff's amendment of the pleading on May 21,2002 and sees no merit or justification for further filing at this late date, especially given the extensive nature of the already pleaded causes of action by the Defendant and no chlmge in operative facts. 9. Denied. Paragraph 9 is denied as a conclusion oflaw to which no responsive pleading is required. 3 WHEREFORE, Defendant requests leave be denied to the Plaintiff to further amend this already amended complaint. DATE: July 24, 2003 / / a..= S=p]~,""M" E'qw~ 549 Bridgf: Street New Cumberland, PA 17070-1931 (717) 774-1445 Supreme Court 1.D. 32317 Attorney for Defendant Triscari 4 Barbara Sump Ie-Sullivan, Esquire Supreme Court #32317 549 Bridge Street New Cumberland, P A 17070 (717) 774-1445 THOMAS A SPECK, Plaintiff IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA v. CIVIL ACTION LAW AND EQUITY SEBASTIAN G. Z. TRISCARI, Defendant : NO. 2001-7086 v. KENNETH R. STEPHAN, Additional Defendant CERTIFICATE OF SERVICE I, BARBARA SUMPLE-SULLIVAN, ESQUIRE, do hereby certify that on this date, I served a true and correct copy of RESPONSE OF DEFENDANT, SEBASTIAN G. Z. TRlSCARI, TO MOTION OF PLAINTIFF TO FOR LEAVE TO AMEND THE COMPLAINT, in the above-captioned matter upon the following individual(s), by United States, First Class Mail, addressed as follows: Mark K. Emery, Esquire 410 North Second Street Harrisburg, P A 17101 Dr. Kenneth R. Stephan 110 Calton Drive Calton, South Carolina 29341 DATE: July 24,2003 ! ~ S"mpl~Swli",,, fuq.,rr, 549 Bridge Street New Cumberland, PA 17070-1931 (717) 774-1445 Supreme Court LD. 32317 Attorney for Defendant Triscari "'111-; [tit (i. r ;J}: )> o c_~ <~ -',.1 "'f' ,'.) ',) ..U I, [) PRAECIPE FOR LISTING CASE FOR ARGUMENT (Must be typewritten and sul:mitted in duplicate) TO THE PROTHONOTARY OF CUMBERLAND COUNTY: please list the within matter f= the next Argunent Court. --------------------------------------------------------------------------------------- CAPTION OF CASE (entire caption must be stated in full) Thomas A. Speck ( Plaintiff) vs. Sebatian G.Z. Triscari vs. Kenneth R. Stephan ( Defendant) No. 7086 Civil,aw and Equity ~ 2001 1. State matter to be argued (i.e.. plaintiff's rrotion for new trial. defendant's denurrer to c~laint. etc.): Plaintiff's Motion for Leave of Court to Amend Complaint 2. Identify counsel who will argue case: (a) for pLrintiff: Address: Mark K. Emery, Esquire 410 North Second Street Harrisburg, PA 17101 (b) for defendant: Address: Barbara Sumple-Sullivan 549 Bridge Street New Cumberland, PA 17070 3. I will notify all parties in writing within boo days that this case has been listed for argurent. 4. Argunent Court Date: August 27, 2003 ~~ Dated: August 4, 2003 Attorney for Plaintif THOMAS A. SPECK, Plaintiff IN THE COURT OF COMMON PLEAS OF CUMBERLAND com.ny, PENNSYLVANIA vs. CIVIL ACTION - LAW SEBASTIAN GZ. TRISCARI Defendant 01-7086 CIVIL vs. KENNETH STEPHAN, Additional Defendant IN RE: PLAINTIFF'S MOTION FOR LEAVE OF COURT TO AMEND COMPLAINT BEFORE HOFFER, P.].. HESS AND OLER. U. ORDER AND NOW, this /.---> ..> day of September, 2003, foHowing consideration of this matter on the briefs filed by the parties, the motion of the plaintiff for leave of court to amend his complaint is GRANTED. BY THE COURT, ~k K. Emery, Esquire For the Plaintiff ;fiH!.! vB'arbara Sumple-Sullivan, Esquire For the Defendant > ~. Kenneth R. Stephan 11 0 Calton Drive Calton, South Carolina 29341 fl espy "1'\) L-iY'e' ,,,\ J... R){,:, oq-J5-d3 :rlm \j\},;',}/\I}/J\\:N =?:cl r\.U',\i'(Y .., ~\~~,C:1r"\n~) 0\ :'C: ., . "',.1 " d"j'S Ab\,.nc >:: " J 11- '.iO 38\J:\C~<}:"~"~""" " Barbara Sumple-Sullivan, Esquire Supreme Court #32317 549 Bridge Street New Cumberland, P A 17070 (717) 774-1445 THOMAS A. SPECK, Plaintiff : IN THE COURT OF COMMON PLEAS : CUMBERLAND COUNTY, PENNSYL VANIA v. : CIVIL ACTION : LAW AND EQUITY : NO. 2001-7086 SEBASTIAN G. Z. TRISCARI, Defendant v. KENNETH R. STEPHAN, Additional Defendant JURY TRIAL DEMANDED PRAECIPE TO DISCONTINUE WITH PREJUDICE TO THE PROTHONOTARY: Please discontinue the above captioned case as to all Defendants and all claims with prejudice. j.-If Dated: ~ H ,2005 ~???~ Mark K. Emery, Esquire 410 North Second Street Harrisburg, P A 17102 (717) 238-9883 Supreme Co .. 72787 Attorne. or PI . tiff ]Jr Dated: fu1ie ~ 2005 Barbara Sumple-Sullivan, Esquire Supreme Court #32317 549 Bridge Street New Cumberland, P A 17070 (717) 774-1445 IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA THOMAS A. SPECK, Plaintiff v. CIVIL ACTION LAW AND EQUITY SEBASTIAN G. Z. TRISCARI, Defendant : NO. 2001-7086 v. KENNETH R. STEPHAN, Additional Defendant JURY TRIAL DEMANDED CERTIFICATE OF SERVICE I, MARK K. EMERY, ESQUIRE, do hereby certify that on this date, I served a true and correct copy of Praecipe to Discontinue, in the above-captioned matter upon the following individual(s), by United States, First Class Mail, addressed as follows: Barbara Sumple-Sullivan, Esquire 549 Bridge Street New Cumberland, PA 17070-1931 Dr. Kenm:th R. Stephan 110 Calton Drive Calton, South Carolina 29341 _J- fJ (or DATE:).m1e --> 2005 ~~~ Mark K. Emery, Esquire 410 North Second Street Harrisburg, PA 17102 (717) 238-9883 Supreme Court I.D. 72787 Attorney for Plaintiff ....' ~ g <J' '- ~ c:: p,:D 0- r- :a~ n~ <.J1 (?(:l ~J -ri -0 .;:~,jt~ \..~ ; -- Off'\ ~:.-~, ~? -\ "- CJ ::2. - "'. U1 .-