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HomeMy WebLinkAbout04-3753AMERICAN WELDING & TANK GROUP, A DIVISION OF I-IAR~C O CORPORATION, Plaintiff VS. DDL, INC. d/b/a FISHER LP GAS, FISHER Bo'FrLE GAS, TERESA E. FISHER AND MARK A. FISHER, Defendant IN THE COURT OF COMMON PLEAS CUMBERLANr~ COUNTY, PENNSYLVANIA : CIVIL ACTION..LAW :NO. NOTICE You have been sued in court. If you wish to defend against the claims set forth in the following pages, you must take action within twenty (20) days after this complaint and notice have been served. To defend against the aforementioned claims, a written appearance ' stating your defenses and obiections must be entered and filed in writing by you, the defendant, or by an attorney. You are warned that if you fail to take action against these claims, the court may proceed without you and a iudgement for any money claimed in the complaint or for any other claim required by the Plaint:iff may be entered against you by the court without further notice. You may lose money, property or other :rights important to you. YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER OR CANNOT AFFORD ONE, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW TO FIND OUT WHERE YOU CAN GET LEGAL HELP. Cumberland County Bar Association 32 S. Bedford Street Carlisle, PA. 17013 -- (717) 249-3166 (800) 990-9108 NOTICIA ~ Le hah demandado a usted en la corte. Si usted quiere defenderse de estas damandas expuastas en las paginas siguientes, usted tiene viente (20) dias de plazo al par'dr de la fecha de la demanda y la notificaaion. Usted debe presentar una apariencia escrita oen persona o por abogado y archivar en la corte en forma escrita sus defensas o sus obieciones a las demandas en contra de su persona. Sea avisado que si usted no se defiende, la corte tomara medidas y puede entrar una ordeo contra usted sin previo aviso o notificacion y por cuaiquier queja o aiivio que es pedido en la Peticion de demanda. Usted puede perder dinero o sus propiedades o otros derechos importantes para usted. LLEVE ESTA DEMANDA A UN ABODAGO IMMEDLATAMENTE. SI NO TIENNE ABOGAD O SI NO TIENE EL DINERO SUFICIENTE DE PAGAR TAL SERVICIO, VAYA EN PERSONA O LLANIE POR TELEFONE ESCRIDA ABA JO PARA AVERIGUAR DONDE SE PUEDE CONSEGUIR ASSISTENCIA LEGAL: A LA OFICINA CUYA DIRECCION SE ENCUENTRA Cumberland County Bar Association 32 S. Bedford Street Carlisle, PA. 17013 -- (717) 249-3166 (800) 990-9108 AMERICAN WELDING & TANK GROUP, A DIVISION OF HARSCO CORPORATION, Plaintiff VS. DDL, INC. d/b/a FISHER LP GAS, FISHER BOTTLE GAS, TERESA E. FISHER AND MARK A. FISHER, Defendant : IN THE COURT OF COMMON PLEAS : CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION-LAW NO. - 7¢3 COMPLAINT 1. The Plaintiff is American Welding & Tank Grc,up, a division of HARSCO Corporation, a corporation organized and existing under the laws of the state of Delaware, with an address of 4718 Old Gettysburg Road, Suite 300, P.O. Box 8316, Camp Hill, Cumberland, PA 17001-8316. 2. The Defendant DDL, Inc. d/b/a Fisher LP Gas (hereinafter "DDL"), is a corporation organized and existing under the laws of the state of Michigan, with an address of 17254 Caberfae Highway, Wellston, Michigan 49689. 3. The Defendant Fisher Bottle Gas, is a corporatien organized and existing under the laws of the state of Michigan, with an address of 17254 Caberfae Highway, Wellston, Michigan 49689. 4. The Defendant Teresa A. Fisher, is an adult individual with an address of 17254 Cabeffae Highway, Wellston, Michigan 49689. 5. The Defendant Mark A. Fisher, is adult individual with an address of 17254 Caberfae Highway, Wellston, Michigan 49689. COUNTI 6. Paragraphs 1-5 are hereby incorporated by reference as if set forth at length. 7. On or about May 2, 2003, the Defendant DDL, Inc. d/b/a Fisher LP Gas entered into a Commercial Note pursuant to which it agreed to pay to the Plaintiff the sum of $103,692.58, in 59 consecutive installments of $2,135.92, and one final installment commencing 30 days from the date of shipment of equipment separately Purchased by Defendant until paid in full. A copy of the Note with all the terms is attached hereto and made a part hereof as Exhibit "A". 8. The equipment referenced in the Note was shipped on May 15, 2003, making the first payment due 30 days thereafter. 9. The Defendant is presently in default on its Pa~nents on the Note. 2 10. There is presently due and owing to the Plaintiff by the Defendant the sum of $90,864.01, plus accrued interest of $1,291.10, for a total unpaid balance on the Note of $92,155.11. COUNT 11. Paragraphs 1-5 are hereby incorporated by reference as if set forth at length. 12. On or about August 18, 2003, the Defendant DDL, Inc. d/b/a Fisher LP Gas entered into a Commercial Note pursuant to which it agreed to pay the Plaintiff the sum of $60,000.00 in 59 consecutive installments of $1,;~35.91, and one final installment commencing 30 days from the date of shipment of equipment separately purchased by Defendant until paid in full. A copy of the Note and with all the ten-ns is attached hereto and made a part hereof as Exhibit "B". 13. The equipment referenced in the Note was shipped on September 8, 2003 making the first payment due 30 days thereafter. 14. The Defendant is presently in default on its payments on Note. 3 15. There is presently due and owing to the Plaintiff the sum of $54,731.12, plus accrued interest of $777.68, for a total unpaid balance on the Note of $55,508.80. COUNTIII 16'P~agraphs1-5areherebyinco~oratedbyre~renceasifset~h~ len~h. 17. On or about August 28, 2002, the Defendant Fischer Bottle Gas entered into a Commercial Note pursuant to which is agreed to pay the Plaintiff the sum of $20,245.41 in 59 consecutive installments of $419.28, Cad one final installment commencing 30 days from the date of shipment of equipment separately Purchased by Defendant until paid in full. A copy of the Note with all the terms is attached hereto and made a par~ hereof as Exhibit "C". 18. The equipment referenced in the Note was shipped on September 5, 2002, making the first payment due 30 days thereafter. 19. The Defendant is presently in default on its payments on Note. 20. There is presently due and owing to the Plaintiff by the Defendant the sum of $14,983.88, plus accrued interest of $218.5.6, for a total unpaid balance on the Note of $15,202.44. COUNT IV 21. Paragraphs 1-5 are hereby incorporated by reference as if set forth at length. 22. On or about September 4, 2002, the Defend~aut Fischer Bottle Gas entered into a Commercial Note pursuant to which it agreed to pay the Plaintiff the sum of $16,962.53 in 59 consecutive installments of $351.29, mad one final installment commencing 30 days from the date of shipment of equipment separately purchased by the Defendant until paid in full. A copy of the Note with ail the terms is attached hereto and made a part hereof as Exhibit "D". 23. The equipment referenced in the Note was shipped on September 4, 2003, making the first payment due 30 days thereafter. 24. The Defendant is presently in default on its payments on Note. 5 25. There is presently due and owing to the Plaintiff by the Defendant the amount of $12,559.03, plus accrued interest of $183.113, for a total unpaid balance on the Note of $12,742.21. COUNT V 26. Paragraphs 1-5 are hereby incorporated by reference as if set forth at length. 27. On or about August 28, 2002, Defendant Fischer Bottle Gas entered into a Commercial Note pursuant to which it agreed to pay the sum of $14,332.31 in 59 consecutive installments of $296.82, and one final installment commencing 30 days from the date of shipment of equipment separately purchased by the Defendant until paid in full. A copy of the Note with all the terms is attached hereto and made a par~ hereof as Exhibit "E". 28. The equipment referenced in the Note was -'Chipped on September 5, 2002, making the first payment due 30 days thereafter. 29. The Defendant is presently in default on its payments on Note. 6 30. There is presently due and owing to the Plaintiff by the Defendant the amount of $10,607.53, plus accrued interest of $154.7Z~, for a total unpaid balance on the Note of $10,762.25. COUNT VI 31. Paragraphs 1-5 are hereby incorporated by ~:eference as if set forth at length. 32. On or about September 10, 2002, Defendant Fischer Bottle Gas entered into a Commercial Note pursuant to which it agreed to pay' the Plaintiff the sum $16,438.25 in 59 consecutive installments of $340.43, and one final installment commencing 30 days from the date of shipment of equipment separately purchased by Defendant until paid in full. A copy of the Note and all the terms is attached hereto and made a part hereof as Exhibit "F". 33. The equipment referenced in the Note was shipped on October 12, 2002, making the first payment due 30 days thereafter. 34. The Defendant is presently in default on its payments on Note. 7 35~ There is presently due and owing to the Plaintiff by the Defendant the amount of $12,770.85, plus accrued interest of $186.28, for a total unpaid balance on the Note of $12,957.13. COUNT VII 36. Paragraphs 1-5 are hereby incorporated by reference as if set forth at length. 37. On or about September 10, 2002, the Defendant Fischer Bottle Gas entered into a Commercial Note pursuant to which it agreed to pay to the Plaintiff the sum of $16,438.25 in 59 consecutive installments of $340.43, and one final installment commencing 30 days from the date of shipment of equipment separately purchased by Defendant until paid in full. A copy of the Note and. all the terms is attached hereto and made a part hereof as Exhibit "G". 38. The equipment referenced in the Note was shipped on October 12, 2002, making the first payment due 30 days thereafter. 39. The Defendant is presently in defa~flt on its payments on Note. 8 40. There is presently due and owing to the Plaintiff by the Defendant the amount of $12,770.85, plus accrued interest of $186.28, for a total unpaid balance on the Note of $12,957.13. COUNT VIII 41. Paragraphs 1-5 are hereby incorporated by :reference as if set forth at length. 42. On or about September 10, 2002, the Defendant Fischer Bottle Gas entered into a Commercial Note pursuant to which it agreed to pay to the Plaintiff the sum of $15,583.25 in 59 consecutive installments of $322.73, and one final installment commencing 30 days from the date of shipment of equipment separately purchased by Defendant until paid in full. A copy of the Note and all the terms is attached hereto and made a part hereof as Exhibit "H". 43. The equipment referenced in the Note was shipped on October 13, 2002, making the first payment due 30 days thereafter. 44. The Defendant is presently in default on its payments on Note. 9 45. There is presently due and owing to the Plaintiff by the Defendant the amount of $12,102.19, plus accrued interest of $176.57., for a total unpaid balance on the Note of $12,278.71. COUNT IX 46. Paragraphs 1-5 are hereby incorporated by reference as if set forth at length. 47. In addition to the aforementioned Note ob]J.gations of the Defendant, Defendant also maintained an open account with the Plaintiff for the purpose of purchases on revolving open credit. 48. Defendant was required to pay the open account in full within 30 days of invoice 49. The current balance on the open account is $31,092.00, which is more than 30 days overdue. 50. Pursuant to the terms of all of the aforementioned Notes, the Defendant is responsible for the payment of all costs and expenses, including reasonable attorneys 10 fees and disbursements, which may be incurred by Plaintiff in the collection of the Notes with the enforcement of the company's rights ~md remedies thereunder. 51. Plaintiff has made demand upon the Defendant for the full amount of the above Note obligations and open account balance, yet despite demand, the Defendant has failed to and/or refused to make payments as aforesaid. WHEREFORE, Plaintiff requests this Honorable, Court to enter Judgment in favor of the Plaintiff and against the Defendants in the combined amount of $255,655.78 as of June 30, 2004, plus continuing interest at the contract rates on each of the aforementioned Notes, plus reasonable attorney's fees and costs of suit. COUNTX 52. Paragraphs 1-5, are hereby incorporated by reference. 53. Concurrent with the execution of the aforementioned Notes between Plaintiff and Defendant DDL (referenced in Count I and[ II), Defendants Teresa E. Fisher and Mark A. Fisher entered into Personal Guaranty Contracts with American Welding & Tank Group, a division of HARSCO Corporation, a copy of which is attached hereto and made a part hereof as Exhibit "I" ~Lud "J". 11 54. Pursuant to the Personal Guaranty Contracts, Defendants Teresa E. Fisher and Mark A. Fisher agreed that in the event of default on the part of Defendant DDL under its Notes, Defendants Teresa E. Fisher and Mark A. Fisher would guaranty the payments of all sums due and owing thereunder, including attomeys fees. 55. Defendants Teresa E. Fisher and Mark A. Fisher are in default under the Personal Guaranty Contracts. 56. Defendant DDL, as primary Obhgor and Defendant Teresa E. Fisher and Mark A. Fisher, as Guarantors of the Personal GuaranW Contracts, are indebted to the Plaintiff in the amounts due and owing in Counts I and II, plus attomeys fees per the Note and Personal Guaranty Contracts, plus continuing interest and costs. WHEREFORE, the Plaintiff, American Welding & Tank Group, a division of HARSCO Corporation, pray this Honorable Court enter' judgment against Defendant Teresa E. Fisher and in favor of the Plaintiff in the amounts due and owing m Counts I and II, plus continuing interest, reasonable legal fees, ~and costs of suit. COUNT XI 57. Paragraphs 1- 5, are hereby incorporated by reference. 12 58. Concurrent with the execution of the aforementioned Note between Plaintiff and Defendant Fischer Bottle Gas, Defendant Mark A. Fisher entered into Personal Guaranty Contracts with American Welding' & Tank Group, a division of HARSCO Corporation, a copy of which is attached hereto and made a par~ hereof as Exhibit "If", "L", "M", "N", "O', and "P".. 59. Pursuant to the Personal Guaranty Contracts, Defendant Mark A. Fisher agreed that in the event of default on the par~ of Defendant Fisher Bottle Gas, under its Note, Defendant Mark A. Fisher would guaranty the payments of all sums due and owing thereunder, including attorneys fees. 60. Defendant Mark A. Fisher in default under the Personal Guaranty Contracts. 61. Defendant Fisher Bottle Gas, as primary Obligor and Defendant Mark A. Fisher, as Guarantor of the Personal Guaranty Contracts, are indebted to the Plaintiff in the amounts due and owing in Counts III, IV, V, VI, VII, and VIII, plus attomeys fees per the Note and Personal Guaranty Contracts, plus continuing interest and COSTS. WHEREFORE, the Plaintiff, American Welding & Tank Group, a division of HARSCO Corporation, pray this Honorable Court enter judgment against Defendant 13 Mark A. Fisher and in favor of the Plaintiff in the amounts due and owing in Counts III IV, V, VI, VII, and VIII, plus continuing interest, reasonable legal fees, and costs of suit. PURCELL, KRUG & H_ALLER 1719 North Front Street Harrisburg, PA 17102 (717) 234-4178 14 VERIFICATION COMPANY NAME: AMERICAN WELDING & TANK, A DIVISION OF HARSCO CORPORATION I verify that the statements made in the foregoing Complaint are true and correct. I understand that false statements herein are made subject to the penalties of 18 PA C.S. § 4904 relating to unsworn falsification to authorities. Dated: COMMERCIAL NOTE $103,692.58 i ~i May 2, 2003 FOR VALUE RECEIVED, each of the undersigned, jointly and severally if more than one (hereinafter collectively referred to as "Borrower"), promises to pay to the order of HARSCO CORPORATION (the "Company"), at its offices at 4718 Old Gettysburg Rd., Ste 300, P. O. Box 8316, Camp Hill, PA 17001-8316, the principal amount of One Hundred Three Thousand Six Hundred Ninety-Two and 58/100 DOLLARS, in lawful money of the United States, plus interest, to be paid as follows: said principal plus interest shall be payable in 59 consecutive equal monthly installments of principal and interest, each in the amount of $2,135.92 commencing 30 days from date of shipment of Equipment and on the same day of the month each month thereafter, each of which installments shall be applied first to the payment of accrued and unpaid interest and then to the payment of principal and a f'mal installment in an amount which is necessary to pay in full all of the outstanding principal plus accrued and unpaid interest on this Note on the date of the t-mai payment. Interest shall accrue at the rate of 8.67% per annum. Payments will be applied as aforesaid on the date received. ADDITIONAL TERMS OF THIS NOTE - Each of the following provisions shall apply to this Note, to any extension or modification hereof and to the indebtedness evidenced hereby, except as otherwise expressly stated above or in a separate writing signed by Company and Borrower. INDEBTEDNESS - This Note evidences the indebtedness of Borrower in connection with the sale of Equipment sold by Company to Borrower. INTEREST - Interest shall be calculated on the basis ora 360-day year and shall be charged for the actual number of days elapsed. Accrued interest shall be payable monthly. Accrued interest shall also be payable when the entire principal balance of this Note becomes due and payable (whether by demand, stated maturity or acceleration) or, if earlier, when such principal balance is actually paid to Company. Interest shall accrue from the date shipment of Equipment is made by Company, provided, however, that to the extent this Note represents a replacement, substitution, renewal or refinancing of existing indebtedness, interest shall accrue from the date hereof. Interest shall accrue on the unpaid balance hereof at the rate provided for in this Note until the entire unpaid balance has been paid in full, notwithstanding the entry of any judgment against Borrower. PREPAYMENT - A prepayment of principal (including any principal repayment as a result of acceleration by Company of this Note) shall require immediate payment to Company of a prepayment fee equal to 1.5% of the principal amount being prepaid. Prepayments shall be applied to scheduled installments of principal in the inverse order of their maturity, shall be accompanied by payment of accrued interest on the principal amount being prepaid and, unless this Note has been accelerated by Company shall not be permitted in an amount less than the scheduled principal installment prior to final maturity of the outstanding principal balance. COLLATERAL - This Note and the indebtedness evidenced hereby shall be secured by any lien or security interest evidenced by a writing (whether now existing or hereafter executed) which contains a provision to the effect that such lien or security interest is intended to secure this Note or indebtedness evidenced hereby. EVENTS OF DEFAULT - Each of the following shall be an Event of Det~ult hereunder: (a) the nonpayment when due of any amount payable under this Note or under any obligation or hidebtedness to Company of Borrower or any person liable, either absolutely or contingently, for payment of any indebtedness evidenced hereby, including endorsers, guarantors and sureties (each such person is referred to as an "Obligor"); (b) if Borrower or any Obligor has failed to observe or perform any other existing or future agreement with Company of any nature whatsoever; (c) if any representation, warranty, certificate, financial statement or other information made or given by Borrower or any Obligor to Company is materially incorrect or misleading; (d) if Borrower or any Obligor shall become insolvent or make an assignment for the benefit of creditors or if any petition shall be filed by or against Borrower or any Obligor under any bankruptcy or insolvency law; (e) the entry of any judgment against Borrower or any Obligor which remains unsatisfied for 15 days or the issuance of any attuchment, tax lien, levy or garnishment against any property of material value in which Borrower or any Obligor has an interest; (f) if any attachment, levy, garnishment or similar legal process is served upon Company as a result of any claim against Borrower or any Obligor or against any property of Borrower or any Obligor; (g) the dissolution, merger, consolidation or change in control (as control is defined in Rule 12b-2 under the Security Exchange Act of 1934), of any Borrower which is a corporation or partnership, or the sale or transfer of any substantial portion of any of Borrower's assets, or if any agreement for such dissolution, merger, or consolidation, change in control, sale or transfer is entered into by Borrower, without the written consent of Company; (h) the death of any Borrower or Obligor who is a natural person: (i) if Company determines reasonably and in good faith that an event has occurred or a condition exists which has had, or is likely to have, a material adverse effect on the financial condition or creditwort]tiness of Borrower or any Obligor, or on the ability of Borrower or any Obligor to perform its obligation evidenced by this Note; (j) if Borrower shall fail to remit promptly when due to the appropriate government agency or authorized depository, any amount collected or ExV,',',o',¥ l"N' withheld from any employee of Borrower for payroll taxed, Social Security payments or similar payroll deductions; · . (k) iF any Obligor shall attemI ) terminate or disclaim such Obligor's iiabilit 'ir the indebtedness evidenced by ~ this Note; (1) if Company shall reasonably and in gookt faith determine and nob,;, Borrower that any collateral for this Note or for the indebtedness evidenced hereby is insufficient as to quality or quanhty; (m) if Borrower shall fail to pay when due any material indebtedness for borrowed money other than to Company; of(n) if Borrower shall be notified of the failure of Borrower or any Obligor to provide financial and other information promptly when reasonably requested by Company. COMPANY,S REMEDIES - Upon the occurrence of one or more Events of Default, unless Company elects otherwise, the entire unpaid balance of this Note and all accrued interest shall be immediately due and payable without notice to Borrower or any Obligor, and Company may, immediately or at any time thereafter, exemise any or all of its fights and remedies hereunder or under any agreement or otherwise under applicable law against Borrower, any Obligor and any collateral. Company may exercise its rights and remedies in any order and may, at its option, delay in or refrain from exercising some or all of its rights and remedies without prejudice thereto. If Borrower fails to make any payment when due hereunder, Borrower shall pay company a service charge of five percent (5%) of such delinquent amount plus interest thereon from the due date thereof until paid at the rate set forth above. NOTICE TO BORROWER - Any notice required to be given by Company under the provisions of this Note shall be effective as m each Borrower and each Obligor when addressed to Borrower and deposited in the mail, postage prepaid, for delivery by first class mail at Borrower's mailing address as it appears on Company's records. PAYMENTS - All payments due under this Note are to be made in inm;ediately available funds. If Company accepts payment in any other form, such payment shall not be deemed to have been made until the funds comprising such payment have actually been received by or made available to Company. PAYMENT OF COSTS - In addition to the principal and interest payable hereunder, Borrower agrees to pay Company, on demand, all costs and expenses (including reasonable attorney's fees and disbursements) which may be incurred by Company in the collection of this Note or the enfomement of Company's rights and remedied hereunder. REPRESENTATIONS BY BORROWER - If Borrower is a corporation or a general or limited partnership, Borrower represents and warrants that it is validly existing and in good standing in the jurisdiction under whose laws it was organized. If Borrower is a corporation, Borrower represents and warrants that the execution, delivery and performance of this Note are within Borrower's corporate powers, haw: been duly authorized by all necessary action by Borrower's Board of Directors, and are not in contravention of the terms of Borrower's charter, by-laws, or any resolution of its Board of Directors. If Borrower is a general or limited partnership, Borrower represents and warrants that the execution, delivery and performance of this Note have been duly authorized and are not in conflict with any provision of Borrower's partnership agreement or certificate of limited partnership. Borrower further represents and warrants that this Note has been validly executed and is enforceable in accordance with its terms, that the execution, delivery and performance by Borrower of this Note are not in contravention of law and do not conflict with any indenture, agreement or undertaking to which Borrower is a party or is otherwise bound, and that no consent or approval of any governmental authority or any third party is required in connechon with the execution, delivery and performance of this Note. WAIVER, ETC., - Borrower and each Obligor waive presentment, dishonor, notice of dishonor, protest and notice of protest. Neither the failure nor any delay on the part of Company to exercise any right, remedy, power or privilege hereunder shall operate as a waiver or modification thereof. No consent, waiver or modification of the terms of this Note shall be effective unless set forth in a writing signed by company. All rights and remedies of Company are cumulative and concurrent and no single or partial exercise of any power or privilege shall preclude any other or further exercise of any right, power or privilege. MISCELLANEOUS - This Note is the unconditional obligation of Borrower, and Borrower agrees that Company shall not be required to exercise any of its rights or remedies against any colIateral in which it holds a lien or security interest or against which it has a right of setoffor against any particular Obligor. Alt representation, warranties and agreements herein are made jointly and severally by each Borrower. If any provision of this Note shall be held invalid or unenforceable, such invalidity of unenforceability shall not affect any other provision hereof. To the extent that this Note represents a replacement, substitution, renewal or refinancing of a pre-existing note or other evidence of indebtedness, the indebtedness represented by such pre-existing note or other instrument shall not be deemed to have been extinguished hereby. This Note has been delivered in and shall be governed by and construed in accordance with the laws of the Commonwealth of Pennsylvania without regard to the law conflicts. This Note shall be binding upon each Borrower and each Obligor and upon their personal representatives, heirs, successors and assigns, and shall benefit Company and its successors and assigns. ASSIGNMENT BY COMPANY - Company may assign or transfer, and Borrower hereby consents to the assignment or transfer, of Company's intere ~ this Note without notice to Borrower. B )wer agrees that the liability of ' Borrower to any assignee of '.:ompany or any subsequent 'assigrtee of such assignee, shall be absolute and unconditional. CONSENT TO JURISDICTION AND VENUE - IN ANY LEGAL PROCEEDING INVOLVING, DIRECTLY OR INDIRECTLY, ANy MATTER ARISING OUT OF OR RELATED TO THIS NOTE OR THE RELATIONSHIP EVIDENCED HEREBY, EACH UNDERSIGNED PARTY HEREBY IRREVOCABLY SUBMITS TO THE NONEXCLUSIVE JURISDICTION OF ANY STATE OR FEDERAL COURT LOCATED IN ANY COUNTY OF THE COMMONWEALTH OF PENNSYLVANIA WHERE COMPANY MAINTAINS AN OFFICE AND AGREES NOT TO RAISE ANY OBJECTIOt~ TO SUCH JURISDICTION OR TO THE LAYING OR MAINTAINING OF THE VENUE OF ANY SUCH PROCEEDING IN SUCH COUNTY. EACH UNDERSIGNED PARTY AGREES THAT SERVICE OF PROCESS IN ANY SUCH PROCEEDING MAY BE DULY EFFECTED UPON IT BY MAILING A COPY THEREOF, BY REGISTERED MAIL, POSTAGE PREPAID, TO EACH UNDERSIGNED PARTY. WAIVER OF JURY TRIAL - EACH UNDERSIGNED PARTY HEREBY WAIVES AND COMPANY BY 1TS ACCEPTANCE HEREOF THEREBY WAIVES, TRIAL BY JURY IN ANY LEGAL PROCEEDING INVOLVING, DIRECTLY OR INDIRECTLY, ANY MATTER (WHETHER SOUNDING IN TORT, CONTRACT OR OTHERWISE) IN ANY WAY ARISING OUT OF OR RELATED TO THIS NOTE OR THE RELATIONSHIP EVIDENCED HEREBY. THIS PROVISION IS A MATERIAL INDUCEMENT FOR COMPANY TO ENTER INTO, ACCEPT OR RELY UPON THIS NOTE. IN WITNESS WHEREOF, Borrower, intending this to be a sealed instrument and intending to be legally bound hereby, has executed and delivered this Note as of the day and year I~Lrst above written. Corporation or Partnership: DDL, ][nc. dba Fisher LP Gas COMMERCIAL NOTE $60,000.00 August 18, 2003 FOR VALUE RECEIVED, each of the undersigned, jointly and severally if more than one (hereinafter collectively referred to as "Borrower"), promises to pay to the order nf HARSCO CORPORATION (the "Company"), at its offices at 4718 Old Gettysburg Rd., Ste 300, P. O. Box 8316, Camp Hill, PA 17001-8316, the principal amount of Sixty Thousand and No/100 DOLLARS, in lawful money of the United States, plus interest, to be paid as follows: said principal plus interest shall be payable in 59 consecutive equal monthly installments of principal and interest, each in the amount of $1,235.91 commencing 30 days from date of shipment of Equipment and on the same day of the month each month thereafter, each of which installments shall be applied first to the payment of accrued and unpaid interest and then to the payment of principal and a final installment in an amount which is necessary to pay in full all of the outstanding principal plus accrued and unpaid interest on this Note on the date of the final payment. Interest shall accrue at the rate of 8.67% per annum. Payments will be applied as aforesaid on the date received. ADDITIONAL TERMS OF THIS NOTE - Each of the following provisions shall apply to this Note, to any extension or modification hereof and to the indebtedness evidenced hereby, except as otherwise expressly stated above or in a separate writing signed by Company and Borrower. INDEBTEDNESS - This Note evidences the indebtedness of Borrower in connection with the sale of Equipment sold by Company to Borrower. INTEREST - Interest shall be calculated on the basis of a 360-day year and shall be charged for the actual number of days elapsed. Accrued interest shall be payable monthly. Accrued iuterest shall also be payable when the entire principal balance of this Note becomes due and payable (whether by demand, stated maturity or acceleration) or, if earlier, when such principal balance is actually paid to Company. Inlerest shall accrue from the date shipment of Equipment is made by Company, prov_i~ however, that to the extent this Note represents a replacement,_ substitution, renewal or refinancing of existing indebtedness, interest shall accrue from the date hereof. Interest shall accrue on the unpaid balance hereof at the rate provided for in this Note until the entire unpaid balance has been paid in full, notwithstanding the entry of any judgment against Borrower. PREPAYMENT - A prepayment of principal (including any principal repayment as a result of acceleration by Company of this Note) shall require immediate payment to Company of a prepayment fee equal to 1.5% of the principal amount being prepaid. Prepayments shall be applied to schednled installments of principal in the inverse order of their maturity, shall be accompanied by payment of a~crned in terest on the principal amount being prepaid and, unless this Note has been accelerated by Company shall not be permitted in an amount less than the scheduled principal installment prior to final maturity of the outstanding principal balance. COLLATERAL - This Note and the indebtedness evidenced hereby shall be secured by any lien or security interest evidenced by a writing (whether now existing or hereafter executed) which contains a provision to the effect that such lien or security interest is intended to secure this Note or indebtedness evidenced hereby. EVENTS OF DEFAULT - Each of the following shall be an Event of Default hereunder: (a) the nonpayment when due of any amount payable under this Note or under any obligation or indebtedness to Company of Borrower or any person liable, either absolutely or contingently, for payment of any indebtedness evidenced hereby, including endorsers, guarantors and sureties (each such person is referred to as an "Obligor"); (b) if Borrower or any Obligor has failed to observe or perform any other existing or future agreement with Company of any nature whatsoever; (c) if any representation, warranty, certificate, financial statement or other information made or given by Borrower or any Obligor to Company is materially incorrect or misleading; (d) if Borrower or any Obligor shall become insolvent or make an assignment for the benefit of creditors or if any petition shall be filed by or against Borrower or any Obligor under any bankruptcy or insolvency law; (e) the entry of any judgment against Borrower or any Obligor which remains unsatisfied for 15 days or the issuance of any attachment, tax lien, levy or garnishment against any property of material value in which Borrower or any Obligor has an interest; (f) if any attachment, levy, garnishment or similar legal process is served upon Company as a result of any claim against Borrower or any Obligor or against any property of Borrower or any Obligor; (g) the dissolution, merger, consolidation or change in control (as control is defined in Rule 12b-2 under the Security Exchange Act of 1934), of any Borrower which is a corporation or partnership, or the sale or transfer of any substantial portion of any of Borrower's assets, or if any agreement for such dissolution, merger, or consolidation, change in control, sale or transfer is entered into by Borrower, without the written consent of Company; (h) the death of any Borrower or Obligor who is a natural person; (i) if Company determines reasonably and in good faith that an event has occurred or a condition exists which has had, or is likely to have, a material adverse effect on the financial condition or creditworthiness of Borrower or any Obligor, or on the ability of Borrower or any Obligor to perform its obligation evidenced by this Note; (j) if Borrower shall fail to remit promptly when due to the appropriate government agency or authorized "73' depository, any amount collecte ' ? withheld from any employee of Borrower ~ payroll taxed, Social Security paymehts or similar payroll dca, ,Ions; (k) if any Obligor sha]l attempt to tern. ]re or disclaim such Obligor's liability for the indebtedness evidenced by this Note; (1) if Company .shall reasonably and in good faith determine and notify Borrower that any collateral for this Note or for the indebtedness evidenced hereby is insufficient as to quality or quantity; (m) if Borrower shall fail to pay when due any material indebtedness for borrowed money other than to Company; of(n) if Borrower shall be notified of the failure of Borrower or any Obligor to provide financial and other information promptly when reasonably requested by Company. COMPANY'S REMEDIES o Upon the occurrence of one or more Events nf Default, unless Company elects otherwise, the entire unpaid balance of this Note and all accrued interest shall be immediately due and payable without notice to Borrower or any Obligor, and Company may, ~mmediately or at any time thereafter, exercise any or all of its rights and remedies hereunder or under any agreement or otherwise under applicable law against Borrower, any Obligor and any collateral. Company may exercise its rights and remedies in any order and may, at its option, delay in or refrain from exercising some or all of its rights and remedies without prejudice thereto. If Borrower fails to make any payment when due hereunder, Borrower shall pay company a service charge of five percent (5%) of such delinquent amount plus interest thereon from the due date thereof until paid at the rate set forth above. NOTICE TO BORROWER - Any notice required to be given by Company under the provisions of this Note shall be effective as to each Borrower and each Obligor when addressed to Borrower and deposited in the mail, postage prepaid, for delivery by first class mail at Borrower's mailing address as it appears on Company's records. PAYMENTS - All payments due under this Note are to be made in immediately available funds. If Company accepts payment in any other form, such payment shall not be deemed to have been made until the funds comprising such payment have actually been received by or made available to Company. PAYMENT OF COSTS - In addition to the principal and interest payable hereunder, Borrower agrees to pay Company, on demand, all costs and expenses (including reasonable attorney's fees and disbursements) which may be incurred by Company in the collection of this Note or the enforcement of Company's rights and remedied hereunder. REPRESENTATIONS BY BORROWER - If Borrower is a corporation or a general or limited partnership, Borrower represents and warrants that it is validly existing and in good standing in the jurisdiction under whose laws it was organized. If Borrower is a corporation, Borrower represents and warrants that the execution, delivery and performance of this Note are within Borrower's corporate powers, have been duly authorized by all necessary action by Borrower's Board of Directors, and are not in contravention of the terms of Borrower's charter, by-laws, or any resolution of its Board of Directors. If Borrower is a general or limited partnership, Borrower represents and warrants that the execution, delivery and performance of this Note have been duly authorized and are not in conflict with any provision of Borrower's partnership agreement or certificate of limited partnership. Borrower further represents and warrants that this Note has been validly executed and is enforceable in accordance with its terms, that the execution, delivery and performance by Borrower of this Note are not in contravention of law and do not conflict with any indenture, agreement or undertaking to which Borrower is a party or is otherwise bound, and that no consent or approval of any governmental authority or any third party is required in connection with the execution, delivery and performance of this Note. WAIVER, ETC., - Borrower and each Obligor waive presentment, dishonur, notice of dishonor, protest and notice of protest. Neither the failure nor any delay on the part of Company to exercise any right, remedy, power or privilege hereunder shall operate as a waiver or modification thereof. No consent, waiver or modification of the terms of this Note shall be effective unless set forth in a writing signed by company. All rights and remedies of Company are cumulative and concurrent and no single or partial exercise of any power or privilege shall preclude any other or further exercise of any right, power or privilege. MISCELLANEOUS - This Note is the unconditional obligation of Borrower, and Borrower agrees that Company shall not be required to exercise any of its rights or remedies against any collateral in which it holds a lien or security interest or against which it has a right of setoff or against any particular Obligor. All representation, warranties and agreements herein are made jointly and severally by each Borrower. If any provision of this Note shall be held invalid or unenforceable, such invalidity of unenforceability shall not affect any other provision hereof. To the extent that this Note represents a replacement, substitution, renewal or re£mancing of a pre-existing note or other evidence of indebtedness, the indebtedness represented by such pre-existing note or other instrument shall not be deemed to have been extinguished hereby. This Note has been delivered in and shall be governed by and construed in accordance with the laws of the Commonwealth of Pennsylvania without regard to the law conflicts. This Note shall be binding upon each Borrower and each Obligor and upon their personal representatives, heirs, successors and assigns, and shall benefit Company and its successors and assigns. ASSIGNMENT BY COMPANY - Cc ~.ny may assign or transfer, and Borrower her" · consents to the assignment or transfe?, of Company's interest . this Note without n~otice to' Borrower. Bor~. ?er agrees that the liability of Borrower to any assignee of Company or any subsequent assignee of such assignee, shall be absolute and unconditional. CONSENT TO JURISDICTION AND VENUE - IN ANY LEGAL PROCEEDING ]INVOLVING, DIRECTLY OR INDIRECTLY, ANY MATTER ARISING OUT OF OR RELATED TO THIS NOTE OR THE RELATIONSHIP EVIDENCED HEREBY, EACH UNDERSIGNED PARTY HEREBY IRREVOCABLY SUBMITS TO THE NONEXCLUSIVE JURISDICTION OF ANY STATE OR FEDERAL COURT LOCATED IN ANY COUNTY OF THE COMMONWEALTH OF PENNSYLVANIA WHERE COMPANY MAINTAINS AN OFFICE AND AGREES NOT TO RAISE ANY OBJECTION TO SUCH JURISDICTION OR TO THE LAYING OR MAINTAINING OF THE VENUE OF ANY SUCH PROCEEDING IN SUCH COUNTY. EACH UNDERSIGNED PARTY AGREES THAT SERVICE OF PROCESS IN ANY SUCH PROCEEDING MAY BE DULY EFFECTED UPON IT BY MAILING A COPY THEREOF, BY REGISTERED MAIL, POSTAGE PREPAID, TO EACH UNDERS][GNED PARTY. WAIVER OF JURY TRIAL - EACH UNDERSIGNED PARTY HEREBY WAIVES AND COMPANY BY ITS ACCEPTANCE HEREOF THEREBY WAIVES, TRIAL BY JURY IN ANY LEGAL PROCEEDING INVOLVING, DIRECTLY OR INDIRECTLY, ANY MATTER OVHETHER SOUNDING IN TORT, CONTRACT OR OTHERWISE) IN ANY WAY ARISING OUT OF OR RELATED TO THIS NOTE OR THE RELATIONSHIP EVIDENCED HE]ZEBY. THIS PROVISION 1S A MATERIAL INDUCEMENT FOR COMPANY TO ENTER INTO, ACCEPT OR RELY UPON THIS NOTE. IN WITNESS WHEREOF, Borrower, intending this to be a sealed instrument and intending to be legally bound hereby, has executed and delivered this Note as of the day and year first above written. Corporation or Partnership: DDL~ Inc. dba Fisher LP Gas Teresa E,. Fisher President 3 COMMERCIAL NOTE $20,24'.5.41 i ~ugust 28, 2002 FOR VALUE RECEIVED; each of the undersigned, jointly and severally if more than one (hereinafter collectively referred to as "Borrower"), promises to pay to the order ofttARSCO CORPORATION (the "Company"), at its offices at 4718 Old Gettysburg Rd., Ste 300, P. O. Box 8316, Camp Hill, PA 17001-8316, the principal amount of Twenty Thousand Two Hundred Forty-five and .41 DOLLARS, in lawful money of the United States, plus interest, to be paid as follows: said principal plus interest shall be payah.le in 59 consecutive equal monthly installments of principal and interest, each in the amount of $419.28 conmaencing 30 days from date of shipment of Equipment and on the same day of the month each month thereafter, each of which installments shall be applied first to the payment of accrued and unpaid interest and then to the payment of principal and a final installment in an amount which is necessary to pay in full all of the outstanding principal plus accrued and unpaid interest on this Note on the date of the final payment. Interest shall accrue at the rate of 8.90% per annum. Payments will be applied as aforesaid on the date received. ADDITIONAL TERMS OF THIS NOTE - Each of the following provisions shall apply to this Note, to any extension or modification hereof and to the indebtedness evidenced hereby, except as otherwise expressly stated above or in a separate writing signed by Company and Borrower. INDEBTEDNESS - This Note evidences the indebtedness of Borrower in connection with the sale of Equipment sold by Company to Borrower. INTEREST ~"Interest shall be calculated on the basis of a 360-day year and shall be charged for the actual number of days elapsed. Accrued interest shall be payable monthly. Accrued interest s~'fl'~fflso be payable when the entire principal balance of this Note becomes due and payable (whether by demand, stated maturity or acceleration) or, if earlier, when such principal balance is actually paid to Company. Interest shall accrue from the date shipment of Equipment is made by Company, provided, however, that to the extent this Note represents a replacement, substitution, renewal or refinancing of existing indebtedness, interest shall accrue from the date hereof. Interest shall accrue on the unpaid balance hereof at the rate provided for in this Note until the entire unpaid balance has been paid in full, notwithstanding the entry of any judgment against Borrower. PREPAYMENT - A prepayment of principal (including any principal repayment as a result of acceleration by Company of this Note) shall require immediate payment to Company of a prepayment fee equal to 1.5% of the principal amount being prepaid. Prepayments shall be applied to scheduled installments of principal in the inverse order of their maturity, shall be accompanied by payment of accrued interest on the principal amount being prepaid and, unless this Note has been accelerated by Company shall not be permiRed in an amount less than the scheduled principal installment prior to final maturity of the outstanding principal balance. COLLATERAL - This Note and the indebtedness evidenced hereby shall be secured by any lien or security interest evidenced by a writing (whether now existing or hereafter executed) which contains a provision to the effect that such lien or security interest is intended to secure this Note or indebtedness evidenced hereby. EVENTS OF DEFAULT - Each of the following shall be an Event of Default hereunder: (a) the nonpayment when due of any amount payable under this Note or under any obligation or indebtedness to Company of Borrower or any person liable, either absolutely or contingently, for payment of any indebtedness evidenced hereby, including endorsers, guarantors and sureties (each such person is referred to as an "Obligor"); (b) if Borrower or any Obligor has failed to observe or perform any other existing or future agreement with Company of any nature whatsoever; (c) if any representation, warranty, certificate, financial statement or other infurmation made or given by Borrower or any Obligor to Company is m~aterially incorrect or misleading; (d) if Borrnwer or any Obligor shall become insolvent or make an assignment for the benefit of creditors or if any petition shall be filed by or against Borrower or any Obligor under any bankruptcy or insolvency law; (e) the entry of any judgment against Borrower or any Obligor which remains unsatisfied for 15 days or the issuance of any attachment, tax lien, levy or garnishment against any property of material value in which Borrower or any Obligor has an interest; (f) if any attachment, levy, garnishment or simiiar legal process is served upon Company as a result of any claim against Borrower or any Obligor or against any property of Borrower or any Obligor; (g) the dissolution, merger, consolidation or change in con~'ol (as control is defined in Rule 12b-2 under the Security Exchange Act of 1934), of any Borrower which is a corporation or partnership, or the sale or transfer of any substantial portion of any of Boncower's assets, or if any agreement for such dissolution, merger, or consolidation, change in control, sale or transfer is entered into by Borrower, without the written consent of Company; (h) the death of any Borrower or Obligor who is a natural person; (i) if Company determines reasonably and in good faith that an event has occurred or a condition exists which has had, or is likely to have, a material adverse effect on the financial condition or creditworthiness of Borrower or any Obligor, or on the ability of Borrower or any Obligor to perform its obligation evidenced by this Note; 0) if Borrower shall fail to remit promptly when due to the appropriate government agency or authorized depository any amount collected or withheld from any employee of B~,,Tower for payroll taxed, Social Security paymev~o or similar payroll deductions; '('k) if a~y Obligor shall attempt ~ }minate or disclaim sdch Obligor's liiability fm indebtedness evidenced by this Note; (1) if Company shall reasonably and in good faith determine and notify Borrower that any collateral for this Note or for the indebtedness evidenced hereby is insufficient as to quality or quantity; (m) if Borrower shall fail to pay when due any material indebtedness for borrowed money other than to Company; of (n) if Borrower shall be notified of the failure of Borrower or any Obligor to provide financial and other information promptly when reasonably requested by Company. COMPANY'S REMEDIES - Upon the occtuwence of one or more Events of Default, unless Company elects otherwise, the entire unpaid balance of this Note and ~1 accrued interest shall be immediately due and payable without notice to Borrower or any Obligor, and Company rm.,.', immediately or at any time thereafter, exercise any or all of its rights and remedies hereunder or under any a~ment or otherwise under applicable law against Borrower, any Obligor and any collateral. Company may exercise its rights and remedies in any order and may, at its option, delay in or refrain from exercising some or all of its n.'dats and remedies without pre.]:udice thereto. If Borrower fails to make any payment when due hereunder, Borrower shall pay company a service charge of five percent (5%) of such delinquent amount plus interest thereon fi.om the due date thereof until paid at the rate set forth above. NOTICE TO BORROWER - Any notice required to be given by Company under the provisions of this Note shall be effective as to each Borrower and each Obligor when addressed to Borrower and deposited in the mail, postage bmpaid, for delivery by first class mail at Borrower's mailing address as :it appears on Company's records. PAYMENTS - All payments due under th/s Note are to be made in immediately available funds. If Company accepts payment'Ri-any other form., such payment shall not be deemed to have been made until the funds comprising such payment have actually been received by or made available to Company. PAYMENT OF COSTS - In addition to the prmcipai and interest payable hereunder, Borrower agrees to pay Company, on demand, all costs and expenses (inchidmg reasonable anorney's fees and disbursements) which may be incurred by Company in the collection of this Nole or the enforcement of Company's rights and remedied hereunder. REPRESENTATIONS BY BORROWER - If Borrower is a corporation or a general or limited partnership, Borrower represents and warrants that it is validly exasting and in good standing in the jurisdiction under whose laws it was organized. If Borrower is a corporation. Borrower represents and warrants that the execution, delivery and performance of this Note are within Borrower's corporate powers, have been duly authorized by all necessary action by Borrower's Board of Directors, and are not in contravention oft. he terms of Borrower's charter, by-laws, or any resolution of its Board of Directors. If Bo:rower is a general or limited parmership, Borrower represents and warrants that the execution, delivery and performance of this Note have been duly authorized and are not in conflict with any provision of Borrower's parmersh/p agreement or certificate of l:[mited partnership. Borrower further represents and warrants that this Note has ~en validly executed and is enforceable in accordance with its t6rms, that the execution, delivery and performance by Borrower of this Note are not in contravention of law and do not conflict with any indenture, agreement or undertakSng to which Borrower is a party or is otherwise bound, and that no consent or approval of any govermnental authority or any third party is required in connection with the execution, delivery and performance of this Note. WAIVER, ETC., - Borrower and each Obligor waive presentment, dishonor, notice of dishonor, protest and notice of protest. Neither the failure nor any delay on the part of Company to exercise any right, remedy, power or privilege hereunder shall operate as a waiver or modLfication thereof. No consent, waiver or modification of the terms of this Note shall be effective unless set forth in a xwifing signed by company. AIl rights and remedies of Company are cumulative and concurrent and no single or partial exercise of any power or privilege shall preclude any other or further exercise of any right, power or pm43.ege. MISCELLANEOUS - This Note is the uncond/rional obligation of Borrower, and Borrower agrees that Company shall not be required to exercise any of its rights or remedies against any collateral in which it holds a lien or security interest or against which it has a right ofseroffor against any particular Obligor. All representation, warranties and agreements herein are made jointly and severally by each Borrower. If any provision of this Note shall be held invalid or unenforceable, such invalidity of unenforceability shall not affect any other provision hereof. To the extent that this Note represents a replacement, substitution, renewal or refi~mncing of a pre.existing note or other evidence of indebtedness, the indebtedness represented by such pre-existing note or other instrument shall not be deemed to have been extinguished hereby. This Note has been delivered irt and shall be governed by and construed in accordance with the laws of the Commonwealth of Pennsylvania without regard to the law conflicts. This Note shall be binding upon each Borrower and each Obligor and upon their personal representatives, heirs, successors and assigns, and shall benefit Company and its successors and assigns. ASSIGNMENT BY COMPANY - Company rna)- assign or transfer, and Borrower hereby consents to the assigranent or transfer, of Company's interest in this Note without notice to Borrower. Borrower agrees that the liability of Borrower to any'assignee 0fCov,-~.~y or any subsequent assignee of such assignee ~hall be absolute and ~ncon~itional. ' CONSENT TO JURISDICTION AND VENUE - IN ANY LEGAL PROCEEDING ]INVOLVING, DIRECTLY OR INDIRECTLY, ANY MATTER ARISING OUT OF OR RELATED TO THIS NOTE OR THE RELATIONSHIP EVIDENCED HEREBY, EACH UNDERSIGNED PARTY HEREBY IRREVOCABLY SUBMITS TO THE NONEXCLUSIVE JURISDICTION OF ANY STATE OR FEDERAL COURT LOCATED IN ANY COUNTY OF THE COMMONWEALTH OF PENNSYLVANIA WHERE COMPANY MAINTAINS AN OFFICE AND AGREES NOT TO RAISE ANY OBJECTION TO SUCH JURISDICTION OR TO THE LAYING OR MAINTAINING OE THE VENUE OF ANy SUCH PROCEEDING IN SUCH COUNTY. EACH UNDERSIGNED PARTY AGREES THAT SERVICE OF PROCESS IN ANY SUCH PROCEEDING MAY BE DULY EFEECTED UPON IT BY MAILING A COPY THEREOF, BY REGISTERED MAIL, POSTAGE PREPAID, TO EACH UNDERSIGNED PARTY. WAIVER OF JURY TRIAL - EACH UNDERSIGNED PARTY HEREBY WAIVES AND COMPANY BY ITS ACCEPTANCE HEREOF THEREBY WAIVES, TRIAL BY JURY IN ANY LEGAL PROCEEDING INVOLVING, DIRECTLY OR INDIRECTLY, ANY MATTER OVHETHER SOUNDING IN TORT, CONTRACT OR OTHERWISE) IN ANy WAY ARISING OUT OF OR RELATED TO THIS NOTE OR THE RELATIONSHIP EVIDENCED HEREBY. THIS PROVISION IS A MATERIAL INDUCEMENT FOR COMPANY TO ENTER INTO, ACCEPT OR RELY UPON THIS NOTE. IN WITNESS WHEREOF, Borrower, intending this to be a sealed instrument and intending to be legally bound hereby, has executed and delivered this Note as of the day and year first above wriHen. .Corporation or Partnership: (Print name and title) Fischer Bottle Gas Mark Fischer~ President Individuals: (Print name of Wimess) (Print name of Wimess) Borrower (Print name of Borrower) x (Print name of Borrower) COMMERCIAL NOTE ~ ~' ?~16,96~.53 ~ ~ugust 28, 2002 FOR VALUE RECEIVED, each of the undersigned, jointly anti severally if more than one (hereinafter collectively referred to as "Borrower"), promises to pay to the order of HARSCO CORPORATION (the "Company"), at its offices at 4718 Old Gettysburg Rd., Ste 300, P. O. Box 8316, Camp Hill, PA 17001-8316, the principal amount of Sixteen Thousand Nine Hundred Sixty-two and .53/100 DOLLARS, in lawful money of the United States, plus interest, to be paid as follows: said principal plus interest shall be payable in 59 consecutive equal monthly installments of principal and interest, each in the amount of $351.29 conanencing 30 days from date of shipment of Equipment and on the same day of the month each month thereafter, each of which installments shall be applied first to the payment of accrued and unpaid interest and then to the payment of principal and a final installment in an amount which is necessary to pay in full all of the outstanding principal plus accrued and unpaid interest on this Note on the date of the final payment. Interest shall accrue at the rate of 8.90% per. annum. Payments will be applied as aforesaid on the date received. ADDITIONAL TERMS OF THIS NOTE - Each of the following provisions shall apply to this Note, to any extension or modification hereof and to the indebtedness evidenced hereby, except as otherwise expressly stated above or in a separate writing signed by Company and Borrower. iNDEBTEDNESS - This Note evidences the indebtedness of Borrower in connection with the sale of Equipment sold by Company to Borrower. INTEREST Z'Intere]t shall be calculated on the basis of a 360-day year and shall.~charged for the actual number of days elapsed. Accrued interest shall be payable monthly. Accrued interest shalI~lso be payable when the entire principal balance of this Note becomes due and payable (whether by demand, stated maturity or acceleration) or, if earlier, when such principal balance is actually paid to Company. Interest shall accme from the date shipment of Equipment is made by Company, provided, however, that to the extent this Note represents a replacement, substitution, renewal or refinancing of existing indebtedness, interest shall accrue from the date hereof. Interest shall accrue on the unpaid balance hereof at the rate provided for in this Note nntil the entire unpaid balance has been paid in full, notwithstanding the entry of any judgment against Borrower. PREPAYMENT - A prepayment ofprincipai (including any principal repa'.~ent as a result of acceleration by Company of this Note) shall require immediate payment to Company of a prepayment fee equal to 1.5 % of the principal amount being prepaid. Prepayments shall be applied to scheduled installments of principal in the inverse order of their maturity, shall be accompanied by payment of accrued intelest on the principal amount being prepaid and, unless this Note has been accelerated by Company shall not be permitted in an amount less than the scheduled principal installment prior to final maturity of the outstanding principal hidance. COLLATERAL - This Note and the indebtedness evidenced hereby shall be secured by any lien or security interest evidenced by a writing (whether now existing or hereafter executed) which contains a provision to the effect that such lien or security interest is intended to secure this Note or indebtedness evidenced hereby. EVENTS OF DEFAULT - Each of the following shall be an Event of Default hereunder: (a) the nonpayment when due of any amount payable under this Note or under any obligation or indebtedness to Company of Borrower or any person liable, either absolutely or contingently, for payment of any indebtedness evidenced hereby, including endorsers, guarantors and sureties (each such person is referred to as an "Obligor"); (b) if Borruwer or any Obligor has failed to observe or perform any other existing or future agreement with Company of any nature whatsoever; (c) if any representation, warranty, certificate, financial statement or other information made or given by Borrower or any Obligor to Company is materially incorrect or nfisleading; (d) if Borrower or any Obligor shall become insolvent or make an assignment for the benefit of creditors or if any petition shall I:,e filed by or against Borrower or any Obligor under any bankruptcy or insolvency law; (e) the entry of any judgment against Borrower or any Obligor which remains unsatisfied for 15 days or the issuance of any attachment, tax lien, levy or garnishment against any property of material value in which Borrower or any Obligor has an interest; (f') if any attachment, levy, garnishment or similar legal process is served upon Company as a result of any claim against Borrower or any Obligor or against any property of Borrower or any Obligor; (g) the dissolution, merger, consolidation or change in control (as control is defined in Rule 12b-2 under the Security Exchange Act of 1934), of any Borrower which is a corporation or partnership, or the sale or transfer of any substantial portion of any of Borrower's assets, or if any agreement for such dissolution, merger, or consolidation, change in control, sale or transfer is entered into by Borrower, without the written consent of Company; th) the death of any Borrower or Obligor who is a natural person; ti) if Company determines reasonably and in good faith that an event has occurred or a condition exists which has had, or is likely to have, a material adverse effect on the financial condition or creditworthiness of Borrower or any Obligor, or on the ability of Borrower or any Obligor to perform its obligation evidenced by this Note; 0) if Borrower shall fail to remit promptly when due to the appropriate government agency or authorized depository, any amount collected or .. withheld from any employee ofF' wower for payroll taxe,d, Socia! Security paymem~ or similar payroll deductions; .' (k) if any Obligor shall attempt t, A'minate or disclaim such Obligor's liability roi ) indebtedness evidenced by this Note; (1) if Company shall reasonably and in good faith determine and notify Borrower that any collateral for · this Note or for the indebtedness evidenced hereby is insufficient as to quality or quantity; (m) if Borrower shall fail to pay when due any material indebtedness for borrowed money other than to Company; of(n) if Borrower shall be notified of the failure of Borrower or any Obligor to provide financial and other information promptly when reasonably requested by Company. COMPANY'S REMEDIES - Upon the occurrence of one or more Events of Default, unless Company elects otherwise, the entire unpaid balance of this Note and all accrued interest shall be in'mediately due and payable without notice to Borrower or any Obligor, and Company may, immediately or at any time thereafter, exercise any or all of its rights and remedies hereunder or under any agreement or otherwise under applicable law against Borrower, any Obligor and any collateral. Company may exercise its rights and remedies in any order and may, at its option, delay in or refrain from exercising some or all of its rights and remedies without prejudice thereto. If Borrower fails to make any payment when due hereunder, Borrower shall pay company a service charge of five percent (5%) of such delinquent amount plus interest thereon from the due date thereof until paid at the rate set forth above. NOTICE TO BORROWER - Any notice required to be given by Company under the provisions of this Note shall be effective as to each Borrower and each Obligor when addressed to Borrower and deposited in the mail, postage prepaid, for delivery by first class mail at Borrower's mailing address as it appears on Company's records. PAYMENTS - All payments due under this Note are to be made in immediately available funds. If Company accepts payment 'ih~ny offier folm, such payment shall not be deemed to have been.,.~until the funds comprising such payment have actually been received by or made available to Company. PAYMENT OF COSTS - In addition to the principal and interest payable hereunder, Borrower agrees to pay Company, on demand, all costs and expenses (including reasonable attorney's fees ;and disbursements) which may be incurred by Company in the collection of this Note or the enforcement of Company's rights and remedied hereunder. REPRESENTATIONS BY BORROWER - If Borrower is a corporation or a general or limited partnership, Borrower represents and warrants that it is validly existing and in good standing in the jurisdiction under whose laws it was organized. If Borrower is a corporation, Borrower represents and warrants that the execution, delivery and performance of this Note are within Borrower's corporate powers, have been duly authorized by all necessary action by Borrower's Board of Directors, and are not in contravention of the te~ms of Borrower's charter, by-laws, or any resolution of its Board of Directors. If Borrower is a general or limited partuership, Borrower represents and warrants that the execution, delivery and performance of this Note have heen duly authorized and are not in conflict with any provision of Borrower's partnership agreement or certificate of limited partnership. Borrower further represents and warrants that this Note has been validly executed and is enforceable in accordance with its tehns, that the execution, delivery and performance by Borrower of this Note are not in contravention of law and do not conflict with any indenture, agreement or undertaking to which Borrower is a party or is otherwise bound, and that no consent or approval of any governmental authority or any third party is required in connection with the execution, delivery and performance of this Note. WAIVER, ETC., - Borrower and each Obligor waive presentment, dishonor, notice of dishonor, protest and notice of protest. Neither the failure nor any delay on the part of Company to exercise any right, remedy, power or privilege hereunder shall operate as a waiver or modification thereof. No consent, waiver or modification of the terms of this Note shall be effective unless set forth in a writing signed by company. All rights and remedies of Company are cumulative and concurrent and no single or partial exercise of any power or privilege shall preclude any other or further exercise of any right, power or privilege. MISCELLANEOUS - This Note is the unconditional obligation of Borrower, and Borrower agrees that Company shall not be required to exercise any of its rights or remedies against any collateral in which it holds a lien or security interest or against which it has a right ofsetoffor against any particular Obligor. All representation, warranties and agreements herein are made jointly and severally by each Borrower. If any provision of this Note shall be held invalid or unenforceable, such invalidity of unenforceability shall not affect any other provision hereof. To the extent that this Note represents a replacement, substitution, renewal or refinancing of a pre-existing note or other evidence of indebtedness, the indebtedness represented by such pre-existing note or other instrument shall not be deemed to have been extinguished hereby. This Note has been delivered in and shall be governed by and construed in accordance with the laws of the Commonwealth of Pennsylvania without regard to the law conflicts. This Note shall be binding upon each Borrower and each Obligor and upon their personal representatives, heirs, successors and assigns, and shall benefit Company and its successors and assigns. ASSIGNMENT BY COMPANY - Company may assign or transfer, and Borrower hereby consents to the assignment or transfer, of Company's interest in this Note without notice to Borrower. Borrower agrees that the liability of · Borrow. er to any assignee of Com~l~y or any subsequent assignee of such assignee, ~hall be absolute and 'unconditional. 'CONSENT TO JURISDICTION AND VENUE - IN ANY LEGAL PROCEEDING INVOLVING, DIRECTLY OR INDIRECTLY, ANY MA'VrER ARISING OUT OF OR RELATED TO THIS NOTE OR THE RELATIONSHIP EVIDENCED HEREBY, EACH UNDERSIGNED PARTY HEREBY IRREVOCABLY SUBMITS TO THE NONEXCLUSIVE JURISDICTION OF ANY STATE OR FEDERAL COURT LOCATED IN ANY COUNTY OF THE COMMONWEALTH OF PENNSYLVANIA WHERE COMPANY MAINTAINS AN OFFICE AND AGREES NOT TO RAISE ANY OBJECTION TO SUCH JURISDICTION OR TO THE LAYING OR MAINTAINING OF THE VENUE OF ANY SUCH PROCEEDING IN SUCH COUNTY. EACH UNDERSIGNED PARTY AGREES THAT SERVICE OF PROCESS IN ANY SUCH PROCEEDING MAY Big DULY EFFECTED UPON IT BY MAILING A COPY THEREOF, BY REGISTERED MAIL, POSTAGE PREPAID, TO EACH UNDERSIGNED PARTY. WAIVER OF JURY TRIAL - EACH UNDERSIGNED PARTY HEREBY WAIVES AND COMPANY BY ITS ACCEPTANCE HEREOF THEREBY WAIVES, TRIAL BY JURY IN ANY LEGAL PROCEEDING INVOLVING, DIRECTLY OR INDIRECTLY, ANY MATTER OVHETHER SOUNDING IN TORT, CONTRACT OR OTHERWISE) IN ANY WAY ARISING OUT OF OR RELATED TO THIS NOTE OR THE RELATIONSHIP EVIDENCED HEREBY. THIS PROVISION IS A MATERIAL INDUCEMENT FOR COMPANY TO ENTER INTO, ACCEPT OR RELY UPON THIS NOTE. IN WITNESS WHEREOF, Borrower, intending this to be a sealed instrument and intending to be legally bound hereby, has executed and delivered this Note as of the day and year first ',above written. .Corporation or Partnership: Fischer ]~,ottle Gas ~(Pri~t name and title) Mark Fischer~ President Individuals: Witness (Print name of Witness) (Print name of Witness) Borrower x (Print name of Borrower) X (Print name of Borrower) COMMERCIAL NOTE ,$14 332.31~ ! )ugust 28, 2002 FOR VALUE RECEIVED, each of the undersigned, jointly and severally if more than one (hereinafter collectively referred to as "Borrower"), promises to pay to the order of I-IARSCO CORPORATION (the "Company"), at its offices at 4718 Old Gettysburg Rd., Ste 300, P. O. Box 8316, Camp Hill, PA 17001-8316, the principal amount of Fourteen Thousand Three Hundred Thirty-two and .31/100 DOLLARS, in lawful money of the United States, plus interest, to be paid as follows: said principal plus interest shall be payable in 59 consecutive equal monthly installments of principal and interest, each in the amount of $296.82 commencing 30 days from date of shipment of Equipment and on the same day of the month each month thereafter, each of which installments shall be applied first to the payment of accrued and unpaid interest and then to the payment of principal and a final installment in an amount which is necessary to pay in full all of the outstanding principal plus accrued and unpaid interest on this Note on the date of the final payment. Interest shall accrue at the rate of 8.90 % per annum. Payments will be applied as aforesaid on the date received. ADDITIONAL TERMS OF THIS NOTE - Each of the following provisions shall apply to this Note, to any extension or modification hereof and to the indebtedness evidenced 'hereby, except as otherwise expressly stated above or in a separate writing signed by Company and Borrower. [NDEBTEDNESS- This Note evidences the indebtedness of Borrower in connection with the sale of Equipment sold by Company to Borrower. INTEREST--'lntere'~t shall be calculated on the basis of a 360-day year and s~charged for the actual number of days elapsed. Accrued interest shall be payable monthly. Accrued interest shall also be payable when the entire principal balance of this Note becomes due and payable (whether by demand, stated maturity or acceleration) or, if earlier, when such principal balance is actually paid to Company. Interest shall accrue from the date shipment of Equipment is made by Company, provided, however, that to the extent this Note represents a replacement, substitution, renewal or refinancing of existing indebtedness, interest shall accrue from the date hereof. Interest shall accrue on the unpaid balance hereof at the rate provided for in this Note until the entire unpaid balance has been paid in full, notwithstanding the entry of any judgment against Borrower. PREPAYMENT - A prepayment of principal (including any principal repayment as a result of acceleration by Company of this Note) shall require immediate payment to Company of a prepayment fee equal to 1.5% of the principal amount being prepaid. Prepayments shall be applied to scheduled installments of principal in the inverse order of their maturity, shall be accompanied by payment of accrued interest on the principal amount being prepaid and, unless this Note has been accelerated by Company shall not be perrrdtted in an amount less than the scheduled principal installment prior to final maturity of the outstanding principal balance. COLLATERAL - This Note and the indebtedness evidenced hereby shall be secured by any lien or security interest evidenced by a writing (whether now existing or hereafter executed) which contains a provision to the effect that such lien or security interest is intended to secure this Note or indebtedness evidenced hereby. EVENTS OF DEFAULT - Each of the following shall be an Event of Default hereunder: (a) the nonpayment when due of any amount payable under this Note or under any obligation or indebtedness to Company of Borrower or any person liable, either absolutely or contingently, for payment of any indebtedness evidenced hereby, including endorsers, guarantors and sureties (each such person is referred to as an '"Obligur"); (b) if Borrower or any Obligor has failed to observe or perform any other existing or future agreement with Company of any nature whatsoever; (c) if any representation, warranty, certificate, f'mancial statement or other information made or given by Borrower or any Obligor to Company is materially incorrect or misleading; (d) if Borrower or any Obligor shall become insolvent or make an assignment for the benefit of creditors or if any petition shall be filed by or against Borrower or any Obligor under any bankruptcy or insolvency law; (e) the entry of any judgment against Borrower or any Obligor which remains unsatisfied for 15 days or the issuance of any attachment, tax lien, levy or garnishment against any property of material value in which Borrower or any Obligor has an interest; (f) if any attachment, levy, garnishment or similar legal process is served upon Company as a result of any claim ;against Borrower or any Obligor or against any property of Borrower or any Obligor; (g) the dissolution, merger, consolidation or change in control (as control is defined in Rule 12b-2 under the Security Exchange Act of 1934), of any Borrower which is a corporation or partnership, or the sale or transfer of any substantial portion of any of Borrower's assets, or if any agreement for such dissolution, merger, or consolidation, change in control, sale or transfer is entered into by Borrower, Without the written consent of Company; (h) the death of any Borrower or Obligor who is a natural person; (i) if Company determines reasonably and in good faith that an event has occurred or a conditinn exists which has had, or is likely to have, a material adverse effect on the financial condition or creditworthiness of Borrower or any Obligor, or on the ability of Borrower or any Obligor to perform its obligation evidenced by this Note; O) if Borrower shall fail to remit promptly when due to the appropriate government agency or authorized depository, any amotmt collected or · withheld from any employee ofP' ~ower for payroll taxed, Social Se,~urity paymer 2r similar payroll deductions; .., ~(k] if ~ny Obligor shall auempt t,_ )minate or disclaim snch Obligor s liability for lindebtedness evidenced by this Note; (I) if Company shall reasonably and in good faith determine and notify Borrower that any collateral for this Note or for the indebtedness evidenced hereby is insufficient as to quality or quantity; (m) ifBon'ower shall fail to pay when due any material indebtedness for borrowed money other than to Company; of (n) if Borrower shall be notified of the failure of Borrower or any Obligor to provide financial and other information promptly when reasonably requested by Company. COMPANY'S REMEDIES - Upon the occurrence ofune or more Events of Default, unless Company elects otherwise, the entire unpaid balance of this Note and alt accrued interest shall be iramediately due and payable without notice to Borrower or any Obligor, and Company may, immediately or at any time thereafter, exercise any or all of its rights and remedies hereunder or under any agreemem or otherwise under applicable law against Borrower, any Obligor and any collateral. Company may exercise its rights and remedies in any order and may, at its option, delay in or refrain from exercising some or all of its rights and remedies without prejudice thereto. If Borrower fails to make any payment when due hereunder, Borrower shall pay company a service charge of five percent (5%) of such delinquent amount plus interest thereon from the due date thereof until paid at the rate set forth above. NOTICE TO BORROWER - Any notice required to be given by Company under the provisions of this Note shall be effective as to each Borrower and each Obligor when addressed to Borrower and deposited in the mail, postage ~repaid, for delivery by first class mail at Borrower's mailing address as it appears on Company's records. PAYMENTS - All payments due under this Note are to be made in immediately available funds. If Company accepts payment 'ffi~.ny otlter foian, such payment shall not be deemed to have been made until the funds comprising such payment have actually been received by or made available to Company. PAYMENT OF COSTS o In addition to the principal and interest payable hereunder, Borrower agrees to pay Company, on demand, all costs and expenses (including reasonable attorney's fees and disbursements) which may be incurred by Company in the collection of this Note or the enforcement of Company's rights and remedied hereunder. REPRESENTATIONS BY BORROWER - If Borrower is a corporation or a general or limited parmership, Borrower represents and warrants that it is validly existing and in good standing in the jurisdiction under whose laws it was organized. If Borrower is a corporation, Borrower represents and wan'mats that the execution, delivery and performance of this Note are within Borrower's corporate powers, have been duly authorized by all necessary action by Borrower's Board of Directors, and are not in contravention of the terms of Borrower's charter, by-laws, or any resolution of its Board of Directors. If Borrower is a general or limited parmersbip, Borrower represents and warrants that the execution, delivery and performance of this Note have ]been duly authorized and are not in conflict with any provision of Borrower's parmership agreement or certificate of limited parmership. Borrower further represents and warrants that this Note has been validly executed and is enforceable in accordance with its tei-rns, that the execution, delivery and performance by Borrower of this Note are not in contravention of law and do not conflict with any indenture, agreement or undertaking to which Borrower is a parly or is otherwise bound, and that no consent or approval of any governmental authority or any third party is required in connection with the execution, delivery and performance of this Note. WAIVER, ETC., - Borrower and each Obligor waive presentment, dishonor, notice of dishonor, protest and notice of protest. Neither the failure nor any delay on the part of Company to exercise any right, remedy, power or privilege hereunder shall operate as a waiver or modification thereof. No consent, waiver or modification of the terms of this Note shall be effective unless set forth in a writing signed by company. All rights and remedies of Company are cumulative and concurrent and no single or partial exercise of any power or privilege shall preclude any other or further exercise of any right, power or privilege. MISCELLANEOUS o This Note is the unconditional obligation of Borrower, and Borrower agrees that Company shall not be required to exercise any of its rights or remedies against any collateral in which it holds a lien or security interest or against which it has a right of setoff or against any particular Obligor. All representation, warranties and agreements herein are made jointly and severally by each Borrower. If any provision of this Note shall be held invalid or unenforceable, such invalidity of unenforceability shall not affi:ct any other provision hereof. To the extent that this Note represents a replacement, substitution, renewal or re f'mancing of a pre-existing note or other evidence of indebtedness, the indebtedness represented by such pre-existing note or other instrument shall not be deemed to have been extinguished hereby. This Note has been delivered in and shall be governed by and construed in accordance with the laws of the Commonwealth ofPeunsylvania withctu regard to the law conflicts. This Note shall be binding upon each Borrower and each Obligor and upon their personal representatives, heirs, successors and assigns, and shall benefit Company and its successors and assigns. ASSIGNMENT BY COMPANY - Company may assign or transfer, and Borrower hereby consents to the assignment or transfer, of Company's interest in this Note without notice to Borrower. ]Borrower agrees that the liability of Borrower !o any assignee of Corr- '~y or any subsequent assignee of such assignee ' '?11 be absolute and .-, ,ur~conditional. ' CONSENT TO JURISDICTION AND VENUE - IN ANY LEGAL PROCEEDING INVOLVING, DIRECTLY OR INDIRECTLY, ANY MATTER ARISING OUT OF OR RELATED TO THIS NOTE OR THE RELATIONSHIP EVIDENCED HEREBY, EACH UNDERSIGNED PARTY HEREBY IRREVOCABLY SUBMITS TO THE NONEXCLUSIVE JURISDICTION OF ANY STATE OR FEDERAL COURT LOCATED IN ANY COUNTY OF THE COMMONWEALTH OF PENNSYLVANIA WHERE COMPANY MAINTAINS AN OFFICE AND AGREES NOT TO RAISE ANY OBJECTION TO SUCH JURISDICTION OR TO THE LAYING OR MAINTAINING OF THE VENUE OF ANY SUCH PROCEEDING IN SUCH COUNTY. EACH UNDERSIGNED PARTY AGREES THAT SERVICE OF PROCESS IN ANY SUCH PROCEEDING MAY BE DULY EFFECTED UPON IT BY MAILING A COPY THEREOF, BY REGISTERED MAIL, POSTAGE PREPAID, TO EACH UNDERSIGNED PARTY. WAIVER OF JURY TRIAL - EACH UNDERSIGNED PARTY HEREBY WAIVES AND COMPANY BY ITS ACCEPTANCE HEREOF THEREBY WAIVES, TRIAL BY JURY IN ANY LEGAL PROCEEDING INVOLVING, DIRECTLY OR INDIRECTLY, ANY MATYER (WHETHER SOUNDING IN TORT, CONTRACT OR OTHERWISE) IN ANY WAY ARISING OUT OF OR RELATED TO THIS NOTE OR THE RELATIONSHIP EVIDENCED HEREBY. THIS PROVISION IS A MATERIAL INDUCEMENT FOR COMPANY TO ENTER INTO, ACCEPT OR RELY UPON THIS NOTE. IN WITNESS WHEREOF, Borrower, intending this to be a sealed insU'ument and intending to be legally bound hereby, has executed and delivered this Note as of the day and year first above written. .Corporation or Partnership: By.. - (Print name and title) Fischer Bottle Gas Mark Fiseher, President Individuals: Witness Print name of Witness) Borrower (Print name of Borrower) X (Print name of Witness) x (Print name of Borrower) COMMERCIAL NOTE $16,438.25 ~ ~ September 10, 2002 FOP. VALUE RECEIVED, each of the undersigned, jointly and several!y if more than one (hereinafter · collectively referred to as "Borrower"), promises to pay to the order of HARSCO CORPORATION (the "Company"), at its offices at 4718 Old Gettysburg P.d., Ste 300, P. O. Box 8316, Camp Hill, PA 17001-8316, the principal amount of Sixteen Thousand Four Hundred Thirty-eight and .25/100 DOLLARS, in lawful money of the United States, plus interest, to be paid as folhiws: said principal plus interest shall be payable in 59 consecutive equal monthly installments of principal and interest, each in the amount of $340.43 commencing 30 days from date of shipment of Equipment and on the same day of the month each month thereafter, each of which installments shall be applied first to the payment of accrued and unpaid interest and then to the payment of principal and a final installment in an amount which is necessary to pay in full all of the outstanding principal plus accrued and unpaid interest on this Note on the date of the final payment. Interest shall accrue at the rate of 8.90% per annum. Payments will be applied as aforesaid on the date received. ADDITIONAL TERMS OF THIS NOTE - Each of the following provisions shall apply to this Note, to any extension or modification heranfand to the indebtedness evidenced hereby, except as otherwise expressly stated above or in a separate writing signed by Company and Borrower. INDEBTEDNESS - This Note evidences the indebtedness of Borrower in connection with the sale of Equipment sold by Company to Borrower. INTEREST - Interest shall be calculated on the basis of a 360-day year and shall be charged for the actual number of days elapsed. Accrued interest shall be payable monthly. Accrued interest shall also be payable when the entire principal balance of this Note becomes due and payable (whether by demund, stated maturity or acceleration) or, if earlier, when such principal balance is actually paid to Company. Interest shall accrue from the date shipment of Equipment is made by Company, provided, however, that to the extent this Note represents a replacement, substitution, renewal or refinancing of existing indebtedness, interest shall accrue from the date hereof. Interest shall accrue on the unpaid balance hereof at the rate provided for in this Note until the entire unpaid balance has been paid in full, notwithstanding the entry of any judgment against Borrower. PREPAYMENT - A prepayment of principal (including any principal repayment as a result of acceleration by Company of this Note) shall require immediate payment to Company of a prepayment fee equal to 1.5% of the principal amount being prepaid. Prepayments shall be applied to scheduled installments of principal in the inverse order of their maturity, shall be accompanied by payment of accmed interest on the principal amount being prepaid and, unless this Note has been accelerated by Company shall not be perrnitted in an amount less than the scheduled principal installment prior to final maturity of the outstanding principal balance. COLLATERAL - This Note and the indebtedness evidenced hereby shall be secured by any lien or security interest evidenced by a writing (whether now existing or hereafter executed) which contains a provision to the effect that such lien or security interest is intended to secure this Note or indebted:aess evidenced hereby. EVENTS OF DEFAULT - Each of the following shall be an Event of Default hereunder: (a) the nonpayment when due of any amount payable under this Note or under any obligation or indebtedness to Company of Borrower or any person liable, either absolutely or contingently, for payment of any indebtedness evidenced hereby, including endorsers, guarantors and sureties (each such person is referred to as ant "Obligor"); (b) if Borrower or any Obligor has failed to observe or perform any other existing or future agreement with Company of any nature whatsoever; (c) if any representation, warranty, certificate, financial statement or other information made or given by Borrower or any Obligor to Company is materially incorrect or misleading; (d) if Bc~rrower or any Obligor shall become insolvent or make an assignment for the benefit of creditors or if any petition shall be filed by or against Borrower or any Obligor under any bankruptcy or insolvency law; (e) the entry of any judgment against Borrower or any Obligor which remains unsatisfied for 15 days or the issuance of any attachment, tax lien, levy or garnishment against any property of material value in which Borrower or any Obligor has an interest; (f) if any attachment, levy, garnishment or similar legal process is served upon Company as a result of any claim against Borrower or any Obligor or against any property of Borrower or any Obligor; (g) the dissolution, merger, cousolidation or change in control (as control is defined in Rule 12b-2 under the Security Exchange Act of 1934), of any Borrower which is a corporation or partnership, or the sale or transfer of any substantial portion of any of Borrower's assets, or if any agreement for such dissolution, merger, or consolidation, change in control, sale or transfer is entered into by Borrower, without the written consent of Company; (h) the death of any Borrower or Obligor who is a natural person; (i) if Company determines reasonably and in good faith that an event has occurred or a condition exists which has had, or is likely to have, a material adverse effect on the financial condition or creditworthiness of Borrower or any Obligor, or on the ability of Borrower or any Obligor to perform its obligation evidenced by this Note; (j) if Borrower shall fail to remit promptly when due to the appropriate government agency or authorized depository, any amount collected or withheld from any employee ot Borrower tbr payroll taxed, Social Security payments or similar payroll deductions; (k) if any Obligor shall attemp_~' ~erminate or disclaim such Obligor's liability fe~ t~ae indebtedness evidenced by .-., , this Note; (1) if Company shalt .}onably and in good faith determine and notif) ~rower that any collateral for this Note or for the indebtedness evidenced hereby is insufficient as to quality or quantity; (m) if Borrower shall fail · to pay when due any material indebtedness for borrowed money other than to Company; of (n) if Borrower shall be notified of the failure of Borrower or any Obligor to provide financial and other information promptly when reasonably requested by Company. COMPANY'S REMEDIES - Upon the occurrence of one or more Events of Default, unless Company elects otherwise, the entire unpaid balance of this Note and all accrued interest shall be immediately due and payable without notice to Borrower or any Obligor, and Company may, immediately or at any thne thereafter, exercise any or all of its rights and remedies hereunder or under any agreement or otherwise under applicable law against Borrower, any Obligor and any collateral. Company may exercise its rights and remedies in any order and may, at its option, delay in or refrain from exercising some or all of its rights and remedies without prejudice thereto. If Borrower fails to make any payment when due hereunder, Borrower shall pay company a serv:[ce charge of five percent (5%) of such delinquent amount plus interest thereon from the due date thereof until paid at the rate set forth above. NOTICE TO BORROWER - Any notice required to be given by Company under the provisions of this Note shalI be effective as to each Borrower and each Obligor when addressed to Borrower and deposited in the mail, postage prepaid, for delivery by first class mail at Borrower's mailing address as it appears on Company's records. PAYMENTS - All payments due under this Note are to be made in immediately available funds. If Company accepts payment in any other form, such payment shall not be deemed to have Seen made until the funds comprising such payment have actually been received by or made available to Company. PAYMENT OF COSTS - In addition to the principal and interest payable hereunder, Borrower agrees to pay Company, on demand, all costs and expenses (including reasonable attorney's fees and disbursements) which may be incurred by Company in the collection of this Note or the enforcement of Company's rights and remedied hereunder. REPRESENTATIONS BY BORROWER - If Borrower is a corporation or a general or limited partnership, Borrower represents and warrants that it is validly existing and in good standing in the jurisdiction under whose laws it was organized. If Borrower is a corporation, Borrower represents and warrants that the execution, delivery and performance of this Note are within Borrower's corporate powers, have been duly authorized by all necessary action by Borrower's Board of Directors, and are not in contravention of the terms of Borrnwer's charter, by-laws, or any resolution of its Board of Directors. If Borrower is a general or limited partnership, Borrower represents and warrants that the execution, delivery and performance of this Note haw~ been duly authorized and are not in conflict with any provision of Borrower's parmership agreement or certificate c~f limited partnership. Borrower further represents and warrants that this Note has been validly executed and is enforceable in accordance with its terms, that the execution, delivery and performance by Borrower of this Note are not in contravention of law and do not conflict with any indenture, agreement or undertaking to which Borrower is a party or is otherwise bound, and that no consent or approval of any governmental authority or any third party is required in connection with the execution, delivery and performance of this Note. WAIVER, ETC., - Borrower and each Obligor waive presentment, dishonor, notice of dishonor, protest and notice of protest. Neither the failure nor any delay on the part of Company to exercise any right, remedy, power or privilege hereunder shall operate as a wai-/er or modification thereof. No consent, waiver or modification of the terms of this Note shall be effective unless set forth in a writing signed by company. All rights and remedies of Company are cumulative and concurrent and no single or partial exercise of any power or privilege shall preclude any other or fu~er exercise of any right, power or privilege. MISCELLANEOUS - This Note is the unconditional obligation of Borrower, and Borrower agrees that Company shall not be required to exercise any of its rights or remedies against any collateral in which it holds a lien or security interest or against which it has a right of setoffur against any particular Obligor. All representation, warranties and agreements herein are made jointly and severally by each Borrower. If any provision of this Note shall be held invalid or unenforceable, such invalidity nf unenforceability shall not affect any other provision hereof. To the extent that this Note represents a replacement, substitution, renewal or refinancing of a pre-existing note or other evidence of indebtedness, the indebtedness represented by such pre-exisdng note or other instrument shall not be deemed to have been extinguished hereby. This Note has been delivered in and shall be governed by and construed in accordance with the laws nfthe Commonwealth of Pennsylvania without regard to the law conflicts. This Note shall be binding upon each Borrower and each Obligor and upon their personal representatives, heirs, successors and assigns, and shall benefit Company and its successors and assigns. ASSIGNMENT BY COMPANY - Company may assign or transfer, and Borrower hereby consents to the assignment or transfer, of Company's interest in this Note without notice to Borrower. Borrower agrees that the liability of Borrower to any assignee ot Company or any subsequent assignee of such assignee, shall be absolute and unconditional. _ CONSENT TO JURISDICTION AND VENUE - IN ANY LEGAL PROCEEDINO INVOLVING, DIRECTLY OR INDIRECTLY, ANY MATTER ARISING OUT OF OR RELATED TO THIS NOTE OR THE RELATIONSHIP EVIDENCED HEREBY, EACH UNDERSIGNED PARTY HEREBY IRREVOCABLY SUBMITS TO THE NONI,.'XCLUSIVE JURISDICTION OF ANY STATE OR FEDERAL COURT LOCATED IN ANY COUNTY OF THE COMMONWEALTH OF PENNSYLVANIA WHERE COMPANY MAINTAINS AN OFFICE AND AGREES NOT TO RAISE ANY OBJECTION TO SUCH JURISDICTION OR TO TIlE LAYING OR MAINTAINING OF TIlE YEN1JE OF ANY SUCIl PROCEEDING IN SUCI~[ COgJNTY. EACIl UNDERSIGNED PARTY COPY THEREOF, BY REGISTERED MAIL, POSTAGE PREPAID, TO EACH UNDERSIGNED PARTY. WAIVER OF JURY TRIAL - EACH UNDERSIGNED PARTY HEREBY WAIVES AND COMPANY BY ITS ACCEPTANCE HEREOF THEREBY WAIVES, TRIAL BY JURY IN ANY LEGAL PROCEEDING INVOLVING, DIRECTLY OR INDIRECTLY, ANY MATTER (WHETHER SOUNDING IN TORT, CONTRACT OR OTIlERWISE) IN ANY WAY ARISING OUT OF OR RELATED TO THIS NOTE OR THE RELATIONSHIP EVIDENCED HEREBY. THIS PROVISION IS A MATERIAL INDUCEMENT FOR COMPANY TO ENTER INTO, ACCEPT OR RELY UPON THIS NOTE. IN WITNESS WHEREOF, Borrower, intending this to be a sealed insmauent and intending to be legally bound hereby, has executed and delivered this Note as of the day and year fin;t above written. Corporation or Partnership: Fischer Bottle Gas (Print name and title) Mark A. Fischer, President Individuals: Witness (Print name of Witness) Borrower (Print name of Borrower) X (Print name of Borrower) X (Print name of Witness) COMMERCIAL NOTE _. .". $16,43~.25 ~ leptember 10, 2002 FOR VALUE RECEIVED, each of the undersigned, jointly and severally if more than one (hereinafter collectively referred to as "Borrower"), promises to pay to the order of HARSCO CORPORATION (the "Company"), at its offices at 4718 Old Gettysburg Rd., Ste 300, P. O. Box 8316, Camp Hill, PA 17001-8316, the principal amount of Sixteen Thousand Four Hundred Thirty-eight and .25/100 DOLLARS, in lawful money of the United States, plus interest, to be paid as follows: said principal plus interest shall be payable in 59 consecutive equal monthly installments of principal and interest, each in the amount of $340.43 commencing 30 days from date of shipment of Equipment and on the same day of the month each month thereafter, each of which installments shall be applied first to the payment of accrued and unpaid interest and then to the payment of principal and a final installment in an amount which is necessary to pay in full ali of the outstanding principal plus accrued and unpaid interest on this Note on the date of the final payment. Interest shall accme at the rate of 8.90% per annum. Payments will be applied as aforesaid on the date received. ADDITIONAL TERMS OF THIS NOTE - Each of the following provisions .';hall apply to this Note, to any extension or modification hereof and to the indebtedness evidenced hereby, except as. otherwise expressly stated above or in a separate writing signed by Company and Borrower. INDEBTEDNESS - This Note evidences the indebtedness of Borrower in connection with the sale of Equipment sold by Company to Borrower. INTEREST - Interest shall be calculated on the basis ora 360-day year and shall be charged for the actual number of days elapsed. Accrued interest shall be payable monthly. Accmed imerest shall also be payable when the entire principal balance of this Note becomes due and payable (whether by demand, stated maturity or acceleration) or, if earlier, when such principal balance is actually paid to Company. Interest shall accrue from the date shipment of Equipment is nude by Company, provided, however, that to the extent this Note represents a replacement, substitution, renewal or refinancing of existing indebtedness, interest shaI1 accrue from the date hereof. Interest shall accrue on the unpaid balance hereof at the rate provided for in this Note until the entire unpaid balance has been paid in full, notwithstanding the entry of any judgment against Borrower. PREPAYMENT - A prepayment ofprincipaI (including any principal repayment as a result of acceleration by Company of this Note) shall require immediate payment to Company of a prepayment fee equal to 1.5% of the principal amount being prepaid. Prepayments shall be applied to scheduled installments of principal in the inverse order of their maturity, shall be accompanied by payment of accrued interest on the principal amount being prepaid and, unless this Note has been accelerated by Company shall not be pern~tted in an amount less than the scheduled principal installment prior to final maturity of the outstanding principal balance. COLLATERAL - This Note and the indebtedness evidenced hereby shall be secured by any lien or security interest evidenced by a writing (whether now existing or hereafter executed) which contains a provision to the effect that such lien or security imerest is intended to secure this Note or indebtedness evidenced hereby. EVENTS OF DEFAULT - Each of the following shall be an Event of Default hereunder: (a) the nonpayment when due of any amount payable under this Note or under any obligation or indebtedness to Company of Borrower or any person liable, either absolutely or contingently, for payment of any indebtedness evidenced hereby, including endorsers, guarantors and sureties (each such person is referred to as an "Obligor"); (b) if Borrower or any Obligor has failed to observe or perform any other existing or future agreement vhth Company of any nature whatsoever; (c) if any representation, warranty, certificate, financial statement or other irLformatiun made or given by Borrower or any Obligor to Company is materially incorrect or misleading; (d) if Borrower or any Obligor shall become insolvent or make an assignment for the benefit of creditors or if any petition shall be filed by or against Borrower or any Obligor under any bankruptcy or insolvency law; (e) the entry of any judgment against Borrower or any Obligor which remains unsatisfied for 15 days or the issuance of any attachment, tax lien, levy or garnishment against any property of material value in which Borrower or any Obligor has an interest; (0 if any attachraent, levy, garnishment or similar legal process is served upon Company as a result of any claim against Borrower or any Obligor or against any property of Borrower or any Obligor; (g) the dissolution, merger, consolidation or change in control (as control is defmed in Rule 12b-2 under the Security Exchange Act of 1934), of any Borrower which is a corporation or partnership, or the sale or transfer of any substantial portion of any of Borrower's assets, or if any agreement for such dissolution, merger, or consolidation, change in control, sale or txansfur is entered into by Borrower, without the written consent of Company; (h) the death of any Borrower or Obligor who is a natural person; (i) if Company determines reasonably and in good faith that an event has occurred or a condition exists which has had, or is likely to have, a material adverse effect on the financial condition or creditworthiness of Borrower or any Obligor, or on the ability of Borrower or any Obligor to perform its obligation evidenced b3, this Note; (j) if Borrower shall fail to remit promptly when due to the appropriate government agency or authorized depository, any amount collected or w thheld from any employee of B,'~:ower for payroll taxed, Social Security paymen3s qr similar payroll deductions; (k) if any Obligor shall attempt t, )minate or disclaim such Obligor's liability for. ndebtedness evidenced by this Note; (1) if Company shall reasonably and in good faith determine and notify Borrower that any collateral for this Note or for the indebtedness evidenced hereby is insufficient as to quality or quantity; (m) if Borrower shall fail to pay when due any material indebtedness for borrowed money other than to Company; of (n) if Borrower shall be notified of the failure of Borrower or any Obligor to provide financial and other information promptly when reasonably requested by Company. COMPANY'S REMEDIES - Upon the occurrence of one or more Events of Defanlt, unless Company elects otherwise, the entire unpaid balance of this Note and all accmed interest shall be immediately due and payable without notice to Borrower or any Obligor, and Company may, Unmediately or at any time thereafter, exercise any or all of its rights and remedies hereunder or under any agreement or otherwise under applicable law against Borrower, any Obligor and any collateral. Company may exercise its rights and remedies in any order and may, at its option, delay in or refrain from exercising some or all of its rights and remedies without prejudice thereto. If Borrower fails to make any payment when due hereunder, Borrower shall pay company a service charge of five percent (5%) of such delinquent amount plus interest thereon from the due date thereof until paid at the rate set forth above. NOTICE TO BORROWER - Any notice required to be given by Company ~mder the provisions of this Note shall be effective as to each Borrower and each Obligor when addressed to Borrower and deposited in the mail, postage prepaid, for delivery by first class mail at Borrower's mailing address as it appears on Company's records. PAYMENTS - All payments due under this Note are to be made in immediately available funds. If Company accepts payment in any other form, such payment shall not be deemed to have been made until the funds comprising such payment have actually been received by or made available to Company. PAYMENT OF COSTS - Ill addition to the principal and interest payable hereunder, Borrower agrees to pay Company, on demand, all costs and expenses (including reasonable attorney's fees and disbursements) which may be incurred by Company in the collection of this Note or the enforcement of Company's rights and remedied hereunder. REPRESENTATIONS BY BORROWER - If Borrower is a corporation or a general or limited parmership, Borrower represents and warrants that it is validly existing and in good standing in the jurisdiction under whose laws it was organized. If Borrower is a corporation, Borrower represents and warrants that the execution, delivery and performance of this Note are within Borrower's corporate powers, have been duly authorized by all necessary action by Borrower's Board of Directors, and are not in contravention of the terms of Borrower's charter, by-laws, or any resolution of its Board of Directors. If Borrower is a general or lira/ted partnership, Borrower represents and warrants that the execution, delivery and performance of this Note have been duly authorized and are not in conflict with any provision of Borrower's parmership agreement or certificate of limited parmership. Borrower further represents and warrants that this Note has been validly executed and is enforceable in accordance with its terms, that the execution, delivery and performance by Borrower of this Note are nn~ in con~avention of law and do not conflict with any indenture, agreement or undertaking to which Borrower is a pa~ or is otherwise bound, and that no consent or approval of any governmental authority or any third party is required in connection with the execution, delivery and performance of this Note. WAIVER, ETC., - Borrower and each Obligor waive presentment, dishonor, notice of dishonor, protest and notice of protest. Neither the failure nor any delay on the part of Company to exercise any right, remedy, power or privilege hereunder shall operate as a waiver or modification thereof. No consent, waiver or modification of the terms of this Note shall be effective unless set forth in a writing signed by company. All rights and remedies of Company are cumulative and concurrent and no single or partial exercise of any power or privilege shall preclude any other or further exercise of any right, power or privilege. MISCELLANEOUS - This Note is the unconditional obligation of Borrower, and Borrower agrees that Company shall not be required to exercise any of its rights or remedies against any collateral in which it holds a lien or security interest or against which it has a right of setoffor against any particular Obligor. All representation, warranties and agreements herein are made jointiy and severally by each Borrower. If any provision of this Note shall be held invalid or unenforceable, such invalidity of unenfurceability shall not affect any other provision hereof. To the extent that this Note represents a replacement, substitution, renewal or refinancing ora pre-existing note or other evidence of indebtedness, the indebtedness represented by such pre-existing note or other instrument shall not be deemed to have been extinguished hereby. This Note has been delivered in and shall be governed by and construed in accordance with the laws of the Commonwealth of Pennsylvania without regard to the law conflicts. This Note shall be binding upon each Borrower and each Obligor and upon their personal representatives, heirs, successors and assigns, and shall benefit Company and its successors and assigns. ASSIGNMENT BY COMPANY - Company may assign or transfer, and Borrower hereby consents to the assignment 6r transfer, of Company's interest in this Note without notice to Borrower. Borrower agrees that the liability of Borrower to any assignee of Com,'~y or any subsequent assignee of such assignee,~s~ll be absolute and /'.unconditional. CONSENT TO JURISDICTION AND VENUE - IN ANY LEGAL PROCEEDING INVOLVING, DIRECTLY OR INDIRECTLY, ANY MATTER ARISING OUT OF OR RELATED TO THIS NOTE OR THE RELATIONSHIP EVIDENCED HEREBY, EACH UNDERSIGNED PARTY HEREBY IRREVOCABLY SUBMITS TO THE NONEXCLUSIVE JURISDICTION OF ANY STATE OR FEDERAL COURT LOCATED IN ANY COUNTY OF THE COMMONWEALTH OF PENNSYLVANIA WHERE COMPANY MAINTAINS AN OFFICE AND AGREES NOT TO RAISE ANY OBJECTION TO SUCH JURISDICTION OR TO THE LAYING OR MAINTAINING OF THE VENUE OF ANY SUCH PROCEEDING IN SUCH COUNTY. EACH UNDERSIGNED pARTY AGREES THAT SERVICE OF PROCESS IN ANY SUCH PROCEEDING MAY BE DULY EFFECTED UPON IT BY MAILING A COPY THEREOF, BY REGISTERED MAIL, POSTAGE PREPAID, TO EACH UI~DERSIGNED PARTY. WAIVER OF JURY TRIAL - EACH UNDERSIGNED PARTY HEREBY WAIVES AND COMPANY BY ITS ACCEPTANCE HEREOF THEREBY WAIVES, TRIAL BY JURY IN ANY LEGAL PROCEEDING INVOLVING, DIRECTLY OR INDIRECTLY, ANY MATTER (~VIt ETHER SOUNDING IN TORT, CONTRACT OR OTHERWISE) IN ANY WAY ARISING OUT OF OR RELATED TO THIS NOTE OR THE RELATIONSHIP EVIDENCED HEREBY. THIS PROVISION IS A MATERIAL INDUCEMENT FOR COMPANY TO ENTER INTO, ACCEPT OR RELY UPON THIS NOTE. 1N WITNESS WHEREOF, Borrower, intending this to be a sealed instrument and intending to be legally bound hereby, has executed and delivered this Note as of the day and year first above written. Corporation or Partnership: (Print name and title) .Fischer ][~ottle Gas Mark A. Fischer~ President Individuals: Witness (Print name of Witness) Borrower (Print name of Borrower) X (Print name of Witness) X (Print name of Borrower) COMMERCIAL NOTE _ · · " $15,58~.25 ~ ~eptember 10, 2002 FOP, VALUE P~ECEIVED, each of the undersigned, jointly and severally if more than one (hereinafter collectively referred to as "Borrower"), promises to pay to the order Of HARSCO CORPORATION (the "Company"), at its offices at 4718 Old Gettysburg Rd., Ste 300, P. O. Box 83 ! 6, Camp Hill, PA 17001-8316, the principal amount of Fifteen Thousand Five Hundred Eighty-three and .25/100 DOLLARS, in lawful money of the United States, plus interest, to be paid as follows: said principal plus interest shall be payable in 59 consecutive equal monthly installments of principal and interest, each in the amount of $322.73 commencing 30 days from date of shipment of Equipment and on the same day of the month each month thereafter, each of which installments shall be applied first to the payment of accmed and unpaid interest and then to the payment of principal and a final installment in an amount which is necessary to pay in full all of the outstanding principal plus accrued and unpaid interest on this Note on the date of the final payment. Interest shall accme at the rate of 8.90% per annum. Payments will be applied as aforesaid on the date received. ADDITIONAL TERMS OF THIS NOTE - Each of the following provisions shall apply to this Note, to any extension or modification hereof and to the indebtedness evidenced hereby, except as otherwise expressly stated above or in a separate writing signed by Company and Borrower. INDEBTEDNESS - This Note evidences the indebtedness of Borrower in connection with the sale of Equipment sold by Company to Borrower. INTEREST - Interest shall be calculated on the basis ora 360-day year and shall be charged for the actual number of days elapsed. Accmed interest shall be payable monthly. Accrued interest shall also be payable when the entire principal balance of this Note becomes due and payable (whether by demand, stated maturity or acceleration) or, if earlier, when such principal balance is actually paid to Company. Interest shall accme from the date shipment of Equipment is made by Company, provided, however, that to the extent this Note represents a replacement, substitution, renewal or refinancing of existing indebtedness, interest shall accrue from the date hereof. Interest shall accrue on the unpaid balance hereof at the rate provided for in this Note ~antil the entire unpaid balance has been paid in full, notwithstanding the entry of any judgment against Borrower. PREPAYMENT - A prepayment of principal (including any principal repayment as a result of acceleration by Company of this Note) shall require immediate payment to Company of a prepayment fee equal to 1.5% of the principal amount being prepaid. Prepayments shall be applied to schedul[ed installments of principal in the inverse order of their maturity, shall be accompanied by payment of accrued interest on the principal amount being prepaid and, unless this Note has been accelerated by Company shall not be permitted in an amount less than the scheduled principal installment prior to final maturity of the outstanding principal balance. COLLATERAL - This Note and the indebtedness evidenced hereby shall be secured by any lien or security interest evidenced by a writing (whether now existing or hereafter executed) which contains a provision to the effect that such lien or security interest is intended to secure this Note or indebtedness evidenced hereby. EVENTS OF DEFAULT - Each of the following shall be an Event of Default hereunder: (a) the nonpayment when due of any amount payable under this Note or under any obligation or indebtedness to Company of Borrower or any person liable, either absolutely or contingently, for payment of any indebtedness evidenced hereby, including endorsers, guarantors and sureties (each such person is referred to as an '~Obligor"); (b) if Borrower or any Obligor has failed to observe or perform any other existing or future agreement with Company of any nature whatsoever; (c) if any representation, warranty, certificate, financial statement or other information made or given by Borrower or any Obligor to Company is materially incorrect or misleading; (d) if Bon'ower or any Obligor shall become insolvent or make an assignment for the benefit of creditors or if any petition shall be filed by or against Borrower or any Obligor under any bankruptcy or insolvency law; (e) the entry of any judi~rnent against Borrower or any Obligor which remains unsatisfied for 15 days or the issuance of any attachment, tax lien, levy or garnishment against any property of material value in which Borrower or any Obligor has an interest; (f) if any attachment, levy, garnishment or similar legal process is served upon Company as a result of any claim against Borrower or any Obligor or against any property of Borrower or any Obligor; (g) the dissolution, merger, consolidatinn or change in control (as control is defined in Rule 12b-2 under the Security Exchange Act of 1934), of a~ty Borrower which is a corporation or partnership, or the sale or transfer of any substantial portion of any of Borrower's assets, or if any agreement for such dissolution, merger, or consolidation, change in control, sale or transfer is entered into by Borrower, without the written consent of Company; (h) the death of any Borrower or Obligor who is a natural person; (i) if Company determines reasonably and in good faith that an event has occurred or a condition exists which has had, or is likely to have, a material adverse effect on the financial condition or creditworthiness of Borrower or any Obligor, or on the ability of Borrower or any Obligor to perform its obligation evidenced by this Note; (3) if Borrower shall fail to remit promptly when due to the appropriate government agency or authorized depository, any amount collected or · withheld from any employee of B,~rLower for payxoll taxed, Social Security payme? 9r similar payroll deductions; , '~ (k) if any Obligor shall attempt l~nate or disclaim such Obligor's liability fo indebtedness evidenced by this Note; (1) if Company shall reasonably and in good faith determine and notify Borrower that any collateral for this Note or for the indebtedness evidenced hereby is insufficient as to quality or quantity; (m) if Borrower shall fail to pay when due any material indebtedness for borrowed money other the n to Company; of (n) if Borrower shall be notified of the failure of Borrower or any Obligor to provide financial and other information promptly when reasonably requested by Company, COMPANY'S REMEDIES - Upon the occurrence of one or more Events of Default, unless Company elects otherwise, the entire unpaid balance of this Note and all accrued interest shall be in'ar~ediately due and payable without notice to Borrower or any Obligor, and Company may, immediately or at any time thereafter, exercise any or all of its rights and remedies hereunder or under any agreement or otherwise under applicable law against Borrower, any Obligor and any collateral. Company may exercise its fights and remedies in any order and may, at its option, delay in or refrain from exercising some or all of its rights and remedies without prejudice thereto. If Borrower fails to make any payment when due hereunder, Borrower shall pay company a service charge of five percent (5%) of such delinquent amount plus interest thereon from the due date thereof until paid at the rate set forth above. NOTICE TO BORROWER - Any notice required to be given by Company under the provisions of this Note shall be effective as to each Borrower and each Obligor when addressed to Borrower and deposited in the mail, postage prepaid, for delivery by fLrst class mail at Borrower's mailing address as it appears on Company's records. PAYMENTS - All payments due under this Note are to be made in immediately available funds. If Company accepts payment in any other form, such payment shall not be deemed to have been made until the fimds comprising such payment have actually been received by or made available to Company. PAYMENT OF COSTS - In addition to the principal and interest payable he:reunder, Borrower agrees to pay Company, on demand, all costs and expenses (including reasonable attorney's fees and disbursements) which may be incurred by Company in the collection of this Note or the enforcement of Company's rights and remedied hereunder. REPRESENTATIONS BY BORROWER - If Borrower is a corporation or a general or limited partnership, Borrower represents and warrants that it is validly existing and in good standing in the jurisdiction under whose laws it was organized. If Borrower is a corporation, Borrower represents and warrants that the execution, delivery and performance of this Note are within Borrower's corporate powers, have been duly authorized by all necessary action by Borrower's Board of Directors, and are not in contravention of the terms of Borrower's charter, by-laws, or any resolution of its Board of Directors. If Borrower is a general or limited parmership, Borrower represents and warrants that the execution, delivery and performance of this Note have been duly authorized and are not in conflict with any provision of Borrower's parmership agreement or certificate of limited partnership. Borrower further represents and warrants that this Note has been validly executed and is enforceable in accordance with its terms, that the execution, delivery and performance by Borrower of this Note are not in contravention of law and do not conflict with any indenture, agreement or undertaking to which Borrower is a party or is otherwise bound, and that no consem or approval of any governmental authority or any third party is required in coimection with the execution, delivery and performance of this Note. WAIVER, ETC., - Borrower and each Obligor waive presentment, dishonor, notice of dishonor, protest and notice of protest. Neither the failure nor any delay on the part of Company to exercise any right, remedy, power or privilege hereunder shall operate as a waiver or modification thereof. No consent, waiver or modification of the terms of this Note shall be effective unless set forth in a writing signed by company. Ali rights and remedies of Company are cmnnlative and concurrent and no single or partial exercise of any power or privilege shall preclude any other or further exercise of any right, power or privilege. MISCELLANEOUS - This Note is the unconditional obligation of Borrower, and Borrower agrees that Company shall not be required to exercise any of its rights or remedies against any collateral in which it holds a lien or security interest or against which it has a right of setoffor against any particular Obligor. Ali representation, warranties and agreements herein are made jointly and severally by each Borrower. If any provision of this Note shall be held invalid or unenforceable, such invalidity of tmenforceability shall not affect any other provision hereof. To the extent that this Note represents a replacement, substitution, renewal or refinancing of a pre-existing note or other evidence of indebtedness, the indebtedness represented by such pre-existing note or other instrument shall not be deemed to have been extinguished hereby. This Note has been delivered in and shall be governed by and construed in accordance with the laws of the Commonwealth of Pennsylvania without regard to the law conflicts. This Note shall be binding upon each Borrower and each Obligor and upon their personal representatives, heirs, successors and assigns, and shall benefit Company and its successors and assigns. ASSIGNMENT BY COMPANY - Company may assign or transfer, and Borrower hereby consents to the assignment Or transfer, of Company's interest in this Note without notice to Borrower. Borrower agrees that the liability of ', Borrower to any assignee of Cor'-'~y or any subsequent assignee of such assignee ,h~ll be absolute and ' ~ncond~tional. CONSENT TO JURISDICTION AND VENUE - IN ANY LEGAL PROCEEDING INVOLVING, DIRECTLY OR INDIRECTLY, ANY MATTER ARISING OUT OF OR RELATED TO THIS NOTE OR THE RELATIONSHIP EVIDENCED HEREBY, EACH UNDERSIGNED PARTY HEREBY IRREVOCABLY SUBMITS TO THE NONEXCLUSIVE JURISDICTION OF ANY STATE OR FEDERAL COURT LOCATED IN ANY COUNTY OF THE COMMONWEALTH OF PENNSYLVANIA WHERE COMPANY MAINTAINS AN OFFICE AND AGREES NOT TO RAISE ANY OBJECTION TO SUCH JURISDICTION OR TO THE LAYING OR MAINTAINING OF THE VENUE OF ANY SUCH PROCEEDING IN SUCH COUNTY. EACH UNDERSIGNED PARTY AGREES THAT SERVICE OF PROCESS IN ANY SUCH PROCEEDING MAY BE DULY EFFECTED UPON IT BY MAILING A COPY THEREOF~ BY REGISTERED MAIL, POSTAGE pREPAID, TO EACH UNDERSIGNED PARTY. WAIVER OF JURY TRIAL - EACH UNDERSIGNED PARTY HEREBY WAIVES AND COMPANY BY ITS ACCEPTANCE HEREOF THEREBY WA[WES, TRIAL BY JURY IN ANY LEGAL PROCEEDING INVOLVING, DIRECTLY OR INDIRECTLY, ANY MATTER ~VHETHER SOUNDING IN TORT, CONTRACT OR OTHERWISE) IN ANY WAY ARISING OUT OF OR RELATED TO THIS NOTE OR THE RELATIONSHIP EVIDENCED HEREBY. THIS PROVISION IS A MATERIAL INDUCEMENT FOR COMPANY TO ENTER INTO, ACCEPT OR RELY UPON THIS NOTE. IN WITNESS WHEREOF, Borrower, intending this to be a sealed instrument and intending to be legally bound hereby, has executed and delivered this Note as of the day and year first above written. Corporation or Partnership: Fischer ]Bottle Gas (Print name and title) Mark A. Fischer~ President Individuals: Witness (Print name of Witness) Borrower x (Print name of Borrower) X (Print name of Wimess) x (Print name of Borrower) Personal Guaranty Contract GUARANTY AGREEMENT dated this 2nd day of May 2003 for and in consideration of the extension of credit to DDL, inc. dba Fisher LP Gas and/or his; agents of Teresa E. Fisher and Mark A. Fisher (referred to hereinafter as the "Guarantor''), and other good and sufficient considerations to the undersigned accruing, I (or we, jointly and severally) hereby give this Continuing Guaranty to Harsco Corporation, Gas & Fluid Control Group (referred to hereinafter as the "Harsco"), for the payment in full, together with all interest, fees and charges of whatsoever nature and kind of any and all indebtedness of the Guarantor to the Harsco, whether an open account, credit card account, or evidenced by note, secured or unsecured, due and owing at the present time, or that may hereafter be due and owing by Guarantor to Harsco, and it is further agreed that if bills are not paid when due, I (or we or any of us) will personally pay the same upon notice and demand. It is agreed that this Continuing Guaranty applies to any extensions or renewals of credit given by Harsco to Guarantor. It is specifically understood and agreed that the Harsco shall not be required to exhaust its legal remedies for recovery and collection against the Guarantor before looking to the undersigned (or any of them) for payment of this account, but that if the account is not !paid when due Haraco may, at once, notify the undersigned, and upon receipt of such notice that the said account is past due and unpaid, the undersigned assumes liability therefor and agrees to pay the same without delay or defalcation. The discharge of Guarantor in bankruptcy will not relieve the undersigned from liability with regard to any amount due and owing under this Continuing Guaranty. It is distinctly understood and agreed that Harsco may enter suit against the undersigned (or any one or more of the undersigned) for the recovery of the en[ira amount of said indebtedness hereby secured, and may recover judgment therefore against the undersigned (or any one or more of said guarantors). It is also understood and agreed that in the event the Harsco commences such suit then and in that event I (or we and each of us) shall pay for the cost of suit and attorneys' fees and commissions for collection, in addition to the indebtedness hereby secured. It is further understood and agreed that the undersigned, each for himself, his heirs, executors, and administrators, does hereby waive the benefit of any and all state laws exempting real and/or personal property from levy and sale on execution, and agrees to the immediate issuance and levying of writs of execution upon his interests in any real estate of personal properly and the subjugation thereof to sale for satisfaction of any such judgment or judgments. The undersigned hereby waives notice of the acceptance of this guaranty, notice of demand and maturity of payments to become due, notice of default in payment by the Guarantor and all such notices required or customarily given under like circumstances. It is also specifically understood and agreed that I (or we and each of us) expressly consent that the time of payment of any indebtedness hereby secured may be extended, or that the Harsco may at any time require and accept other security of any nature whatsoever from Guarantor without notice to consent from me (or us or each of us). I (or we and each of us jointly and severally) agree to be held responsible for said obligations precisely as if the same had been contracted and due and owing by the undersigned or each of us in person. This Continuing Guaranty binds each of the signers hereto, jointly and severally, their respective heirs, executors, and administrators and shall extend to and cover all renewals of any claims or demands guaranteed under this instrument, or the extension of time of payment thereof, and shall remain in full force and effect from this date until revoked by the undersigned in writing to be sent by registered mail to the Vice President-Controller at P. O. Box 8316, City of Camp Hill, State of Pennsylvania 17001-8316, evidence of such mailing to be established by postal receipt. No addition, alteration, modification, novation or change in any of the terms or conditions of this Guaranty shall be binding upon the Harsco unless made in writing and signed by an authorized Vice President of Harsco. 1 The obligation of Guarantor is a primary and unconditional obligation and shall not be affected in any manner by any change in the status of Customer or by any change from any cause whatsoever. This Guaranty shall not be revoked by the death or incapacity of any Guarantor but shall remain in full force and effect until terminated in a writing executed by Harsco and Guarantor. Guarantor hereby waives any defenses whatsoever which Guarantor and/or Customer may h-"lve with respect to any of the obligations or liabilities of Guarantor to Harsco under this Guaranty including, without limitation to the generality hereof, defenses arising out of estoppel, laches or any statute of limitations. It is the specific intention and agreement of the parties that this Agreement for any purpose be governed and interpreted solely by and under the laws of the Commonwealth of Pennsylvania in which jurisdiction the principal offices of Harsco Corporation are located. It is the specific intention and agreement of the parties that this Agreement be suitable for filing and confession of judgment in the event of a default hereunder. If any provisions of this Guaranty Agreement shall contravene or be invalid under the laws of the United States or any State, such contravention or invalidity shall not invalidate this Agreement or' any other agreement which is part of this transaction, but shalt be construed as not containing such provision, and the rights and obligations of the parties under this Guaranty Agreement shall be interpreted, construed and enforced accordingly. IN WITNESS WHEREOF, the parties have executed this Guaranty Agreement the day and year first above written. WITNESS: GUAP. ANTOR ere.ia E. Fisher Mark A. Fisher WITNESS: Harsco Corporation, Gas ~, Fluid Control Group Personal Guaranty Contract GUARANTY AGREEMENT dated this 18th day of August 2003 for and in consideration of the extension of credit to DDL, Inc. dba Fisher LP Gas and/or his agents of Teresa E. Fisher and Mark A. Fisher (referred to hereinafter as the "Guarantor'), and other good and sufficient considerations to the undersigned accruing, I (or we, jointly and severally) hereby give this Continuing Guaranty to Harsco Corporation, Gas & Fluid Control Group (referred to hereinafter as the "Harsco"), for the payment in full, together with all interest, fees and charges of whatsoever nature, and kind of any and all indebtedness of the Guarantor to the Harsco, whether an open account, credit card account, or evidenced by note, secured or unsecured, due and owing at the present time, or that may hereafter be due and owing by Guarantor to Harsco, and it is further agreed that if bills are not paid when due, I (or we or any of us) will personally pay the same upon notice and demand. It is agreed that this Continuing Guaranty applies to any extensions or renewals of credit given by Harsco to Guarantor. It is specifically understood and agreed that the Harsco shall not be required to exhaust its legal remedies for recovery and collection against the Guarantor before looking to the undersigned (or any of them) for payment of this account, but that if the account is not paid when due Harsco may, at once, notify the undersigned, and upon receipt of such notice that the said account is past due and unpaid, the undersigned assumes liability therefor and agrees to pay the same without delay or defalcation. The discharge of Guarantor in bankruptcy will not relieve the undersigned from liability with regard to any amount due and owing under this Continuing Guaranty. It is distinctly understood and agreed that Harsco may enter suit against the undersigned (or any one or more of the undersigned) for the recovery of the entire amount of said indebtedness hereby secured, and may recover judgment therefore against the undersigned (or any one or more of said guarantors). It is also understood and agreed that in the event the Harsco commences such suit then and in that event I (or we and each of us) shall pay for the cost of suit and attorneys' fees and commissions for collection, in addition to the indebtedness hereby secured. It is further understood and agreed that the undersigned, each for himself, his heirs, executors, and administrators, does hereby waive the benefit of any and all state laws exempting real and/or personal property from levy and sale on execution, and agrees lo the immediate issuance and levying of wdts of execution upon his interests in any real estate of personal property and the subjugation thereof to sale for satisfaction of any such judgment or judgments. The undersigned hereby waives notice of the acceptance of this guaranty, notice of demand and maturity of payments to become due, notice of default in payment by the Guarantor and all such notices required or customarily given under like circumstances. It is als() specifically understood and agreed that I (or we and each of us) expressly consent that the time of payment of any indebtedness hereby secured may be extended, or that the Harsco may at any time require and accept other security of any nature whatsoever from Guarantor without notice to consent from me (or us or each of us). I (or we and each of us jointly and severally) agree to be held responsible for said obligations precisely as if the same had been contracted and due and owiing by the undersigned or each of us in person. This Continuing Guaranty binds each of the signers hereto, jointly and severally, their respective heirs, executors, and administrators and shall extend to and cower all renewals of any claims or demands guaranteed under this instrument, or the extension of time of payment thereof, and shall remain in full force and effect from this date until revoked by the undersigned in writing to be sent by registered mail to the Vice President-Controller at P. O. Box 8316, City of Camp Hill, State of Pennsylvania 17001-8316, evidence of such mailing to be established by postal receipt. No addition, alteration, modification, novation or change in any of the terms or conditions of this Guaranty shall be binding upon the Harsco unless made in writing and signed by an authorized Vice President of Harsco. 1 The obligation of Guarantor is a pdmary and uncondition~al obligation and shall not be affected in any manner by any change in the status of Customer or by any change from any cause whatsoever. This Guaranty shall not be revoked by the death or incapacity of any Guarantor but shall remain in full force and effect until terminated in a wdting executed by Harsco and Guarantor. Guarantor hereby waives any defenses whatsoever which Guarantor and/or Customer may have with respect to any of the obligations or liabilities of Guarantor to Harsco under this Guaranty including, without limitation to the generality hereof, defenses arising out of estoppel, laches or any statute .of limitations. It is the specific intention and agreement of the parties that this Agreement for any purpose be governed and interpreted solely by and under the laws of the Commonwealth of Pennsylvania in which jurisdiction the principal offices of Harsco Corporation are located. It is the specific intention and agreement of the parties that this Agreement be suitable for filing and confession of judgment in the event of a default hereunder. If any provisions of this Guaranty Agreement shall contravene or be invalid under the laws of the United States or any State, such contravention or invalidity shall not invalidate this Agreement or any other agreement which is part of this transaction, but shall be construed as not containing such provision, and the rights and obligations of the parties under this Guaranty Agreement shall be interpreted, construed and enforced accordingly. IN WITNESS WHEREOF, the parties have executed this Guaranty Agreement the day and year first above wdtten. WITNESS: GUARANTOR Mark A. Fisher WITNESS: Harsco Corporation, Gas & Fluid Control Group Personal Guaranty Contract GUARANTY AGREEMENT dated this 28th day of August, 2002 for and in consideration of the extension of credit to Fischer Bottle Gas and/or his agents of Mark Fischer (referred to hereinafter as the "Guarantor"), and other good and sufficient considerations to the undersigned accruing, I (or we, jointly and severally) hereby give this Continuing Guaranty to Harsco Corporation, Gas & Fluid Control Group (referred to hereinafter as the "Harsco"), for the payment in full, together with all interest, fees and charges of whatsoever nature and kind of any and all indebtedness of the Guarantor to the Harsco, whether an open account, credit card account, or evidenced by note, secured or unsecured, due and owing at the present time, or that may hereafter be due and owing by Guarantor to Harsco, and it is further agreed that if bills are not paid when due, I (or we or any of us) will personally pay the same upon notice and demand. It is agreed that this Continuing Guaranty applies to any extensions or renewals of credit given by Harsco to Guarantor. It is specifically understood and agreed that the Harsco shall not be required to exhaust its Ib~a-'l ren'i~d es'for recovery and collection against the Guaran~ore looking to the undersigned (or any of them) for payment of this account, but that. if the account s not paid when due Harsco may, at once, notify the undemigned, and upon receipt of such notice that the said account is past due and unpaid, the undersigned assumes liabilify therefor and agrees to pay the same without delay or defalcation. The discharge of Guarantor in bankruptcy will not relieve the undersigned from liability with regard to any amount due and owing under this Continuing Guaranty. It is distinctly understood and agreed that Harsco may enter suit against the undersigned (or any one or more of the undersigned) for the recovery of the entire amount of said indebtedness hereby secured, and may recover judgment therefore against the undersigned (or any one or more of said guarantors). It is also understood anti agreed that in the event the Harsco commences such suit then and in that event I (or we and each of u~) shall pay for the cost of suit and attorneys' fees and commissions for collection, in addition to the indebtedness hereby secured. It is further understood and agreed that the undersigned, each for himself, his heirs, executors, and administrators, does hereby waive the benefit of any and all state laws exempting real and/or personal property from levy and sale on execution, and agrees to the immediate issuance and levying of writs of execution upon his interests in any real estate of personal property and the subjugation thereof to sale for satisfaction of any such judgment or judgments. The undersigned hereby waives notice of the acceptance of this guaranty, notice of demand and maturity of payments to become due, notice of default in payment by the Guarantor and all such notices required or customarily given under like c, ircumstances. It is also specifically understood and agreed that I (or we and each of us) expressly consent that the time of payment of any indebtedness hereby secured may be extended, or that the Harsco may at any time require and accept other security of any nature whatsoever from Guarantor without notice to consent from me (or us or each of us). I (or we and each of us jointly and severally) agree to be held responsible for said obligations precisely as if the same had been contracted and due and owing by the undersigned or each of us in person. This Continui0g Guaranty binds each of the signers hereto, jointly and severally, their respective heirs, executors, and administrators and shall extend to and cover all renewals of any claims or demands guaranteed under this instrument, or the extension of time of payment thereof, and shall remain in full force and effect from this date until revoked by the undersigned in writing to be sent by registered mail to the Vice President-Controller at P. O. Box 8316, City of Camp Hill, State of Pennsylvania 17001-8316, evidence of such mailing to be established by postal receipt. No addition, alteration, modification, novation or change in any of the terms or conditions of this Guaranty shall be binding upon '[he Harsco unless made in writing and signed by an authorized Vice President of Harsco. The obligation of Guarantor is a primary and unconditional obligation and shall not be affected in any manner by any change in the status of Customer or by any change from any cause whatsoever. This Guaranty shall net be revoked by the death or incapacity of any Guarantor but shall remain in full force and effect until terminated in a writing executed by Harsco and Guarantor. Guarantor hereby waives any defenses whatsoew;r which Guarantor and/or Customer may have with respect to any of the obligations or liabilities of Guarantor to Harsce under this Guaranty including, without limitation to the generality hereof, defenses arising out of estoppel, laches or any statute of limitations. It is the specific intention and agreement of the parties that this Agreement for any purpose be governed and interpreted solely by and under the laws of the Commonwealth of Pennsylvania in which jurisdiction the principal offices of Harsco Corporation are located. It is the specific intention and agreement of the parties that this Agreement be suitable for filing and confession of judgment in the event of a default hereunder. If any provisions of this Guaranty Agreement shall contravene or be invalid under the laws of the United States or any State, such contravention or invalidity shall not invalidate this Agreement or any~ffier agTeern'ent which is part of this transaction, but shall be co~ued as not containing such provision, and the rights and obligations of the parties under,ires ~uaranty Agreement shall be interpreted, construed and enforced accordingly. IN WITNESS WHEREOF, the parties have executed this Guaranty Agreement the day and year first above written. (Name and address) WITNESS: GUARANTOR .._ (Name) Harsco COrporation, Gas & Fluid Control Group. Personal Guaranty Contract GUARANTY AGREEMENT dated this 28th day of August, 2002 for and in consideration of the extension of credit to Fischer Bottle Gas and/or his agents of Mark Fischer (referred to hereinafter as the "Guarantor"), and other good and sufficient considerations to the undersigned accruing, I (or we, jointly and severally) hereby give this Continuing Guaranty to Harsco Corporation, Gas & Fluid Control Group (referred to hereinafter as the "Harsco"), for the payment in full, together with all interest, fees and charges of whatsoewsr nature and kind of any and all indebtedr~ess of the Guarantor to the Harsco, whether an open account, credit card account, or evidenced by note, secured or unsecured, due and owing at the present time, or that may hereafter be due and owing by Guarantor to Harsco, and it is further agreed that if bills are not paid when due, I (or we or any of us) will personally pay the same upon notice and demand. It is agreed that this Continuing Guaranty applies to any extensions or renewals of credit given by Harsco to Guarantor. It is specifically understood and agreed that the Harsco shall not be required to exhaust its t~a-I rerri~dies'for recovery and collection against the Guarantor~ore looking to the undersigned (or any of them) for payment of this account, but that'if the account is not paid when due Harsco may, at once, notify the undersigned, and upon receipt of such notice that the said account is past due and unpaid, the undersigned assumes liability therefor and agrees to pay the same without delay or defalcation. The discharge of Guarantor in bankruptcy will not relieve the undersigned from liability with regard to any amount due and owing under this Continuing Guaranty. It is distinctly understood and agreed that Harsco may enter suit against the undersigned (or any one or more of the undersigned) for the recovery of the entire amount of said indebtedness hereby secured, and may recover judgment therefore against the undersigned (or any one or more of said guarantors). It is also understood and agreed that in the event the Harsco commences such suit then and in that event I (or we and each of us) shall pay for the cost of suit and attorneys' fees and commissions for collection, in s~ddition to the indebtedness hereby secured. It is further understood and agreed that the undersigned, each for himself, his heirs, executors, and administrators, does hereby waive the benefit of any and all state laws exempting real and/or personal property from levy and sate on execution, and agrees to the immediate issuance and levying of writs of execution upon his interests in~ any real estate of personal property and the subjugation thereof to sale for satisfaction of any such judgment or judgments. The undersigned hereby waives notice of the acceptance of this guaranty, notice of demand and maturity of payments to become due, notice of default in payment by the Guarantor and all such notices required or customarily given under like circumstances. It is also specifically understood and agreed that I (or we and each of us) exprassly consent that the time of payment of any indebtedness hereby secured may be extended, or that the Harsco may at any time require and accept other security of any nature whatsoever from Guarantor without notice to consent from me (or us or each of us). I (or we and each of us jointly and severally) agree to be held responsible for said obligations precisely as if the same had been contracted and due and owing by the undersigned or each of us in person. This Continuing Guaranty binds each of the signers hereto, jointly and severally, their respective heirs, executors, and administrators and shall extend to and cover all renewals of any claims or demands guaranteed under this instrument, or the extension of time of payment thereof, and shall remain in full force and effect from this date until revoked by the undersigned in writing to be sent by registered mail to the Vice President-Controller at P. O. Box 8316, City of Camp Hill, State of Pennsylvania 17001-8316, evidence of such mailing to be "L" established by postal receipt. No addition, alteration, modification, novation or change in any of the terms or conditions of this Guaranty shall be binding upon 'the Harsco unless made in writing and signed by an authorized Vice President of Harsco. The obligation of Guarantor is a primary and unconditional obligation and shall not be affected in any manner by any change in the status of Customer or by any change from any cause whatsoever. This Guaranty shall not be revoked by the death or incapacity of any Guarantor but shall remain in full force and effect un{il terminated in a writing executed by Harsco and Guarantor. Guarantor hereby waives any defenses whatsoever which Guarantor and/or Customer may have with respect to any of the obligations or liabilities of Guarantor to Harsco under this Guaranty including, without limitation to the generality hereof, defenses arising out of estoppel, laches or any statute of limitations. It is the specific intention and agreement of the parties that this Agreement for any purpose be governed and interpreted solely by and under the laws of the Commonwealth of Pennsylvania in which jurisdiction the principal offices of Harsco Corporation ara located. It is the specific intention and agraement of the parties that this Agreement be suitable for filing and confession of judgment in the event of a default hereunder. If any previsions of this Guaranty Agreement shall contravene or be invalid under the laws of the United States or any State, such contravention or invalidity shall not invalidate this Agreement or any'~fl~er a~¥eern'ent which is part of this transaction, but shall be co~.~rued as not containing such provision, and the rights and obligations of the parties under {his Guaranty Agreement shall be interpreted, construed and enforced accordingly. IN WITNESS WHEREOF, the parties have executed this Guaranty Agreement the day and year first above written. WIT~ESS: (Name and addr~'ss) ' WITNESS: GUARANTOR (Name) Harsco Corporation, Personal Guaranty Contract GUARANTY AGREEMENT dated this 28th day of August, 2002 for and in consideration of the extension of credit to Fischer Bottle Gas and/or his agents of Mark Fischer (referred to hereinafter as the "Guarantor"), and other good and sufficient considerations to the undersigned accruing, I (or we, jointly and severally) hereby give this Continuing Guaranty to Harsco Corporation, Gas & Fluid Control Group (referred to hereinafter as the "Harsco"), for the payment in full, together with all interest, fees and charges of whatsoever nature and kind of any and all indebtedness of the Guarantor to the Harsco, whether an open account, credit card account, or evidenced by note, secured or unsecured, due and owing at the present time, or that may hereafter be due and owing by Guarantor to Harsco, and it is [udher agreed that if bills are not paid when due, I (orwe or any of us) will personally pay the same upon notice and demand. It is agreed that this Continuing Guaranty applies to any extension, s or renewals of credit given by Harsco to Guarantor, It is specifically understood and agreed that the Hars(;o shall not be required to exhaust its I~"~-~1 rerfi~dies' for recovery and collection against the Guarantor. Lq.E~fora looking to the undersigned (or any of them) for payment of this account, but that if the account is not paid when due Harsco may, at once, notify the undersigned, and upon receipt of such notice that the said account is past due and unpaid, the undersigned assumes liability therefor and agrees to pay the same 'without delay or defalcation. The discharge of Guarantor in bankruptcy will not relieve the undersigned from liability with regard to any amount due and owing under this Continuing Guaranty. It is distinctly understood and agreed that Harsco ma!/enter suit against the undersigned (or any one or more of the undersigned) for the recovery of the entire amount of said indebtedness hereby secured, and may recover judgment therefore against the undersigned (or any one or more of said guarantors). It is also understood and agreed that in the event the Harsco commences such suit then and in that event I (or we and each of us) shall pay for the cost of suit and attorneys' fees and commissions for collection, in addition to the indebtedness hereby secured. It is further understood and agreed that the undersign,ed, each for himself, his heirs, executors, and administrators, does hereby waive the benefit of any and all state laws exempting real and/or personal property from levy and sale on execution, and agrees to the immediate issuance and levying of writs of execution upon his interests in any real estate of personal property and the subjugation thereof to sale for satisfaction of any such judgment or judgments. The undersigned hereby waives notice of the acceptance of this guaranty, notice of demand and maturity of payments to become due, notice of default in payment by the Guarantor and all such notices required or customarily given under like circumstances. It is also specifically understood and agreed that I (or we and each of us) expressly consent that the time of payment of any indebtedness hereby secured may be extended, or that the Harsco may at any time require and accept other security of any nature whatsoever from Guarantor without notice to consent from me (or us or each of us). I (or we and each of us jointly and severally) agree to be held responsible for said obligations precisely as if the same had been contracted and due and owing by the undersigned or each of us in person. This Continuing Guaranty binds each of the signers hereto, jointly and severally, their respective heirs, executors, and administrators and shall extend to and cover all renewals of any claims or demands guaranteed under this instrument, or the extension of time of payment thereof, and shall remain in full force and effect from this date until revoked by the undersigned in writing to be sent by registered mail to the Vice President-Controller at P. O. Box 8316, City of Camp Hill, State of Pennsylvania 17001-8316, evidenca of such mailing to be established by postal receipt. No addition, alteration, modification, novation or change in any of the terms or conditions of this Guaranty shall be binding upon the Harsco unless made in writing and signed by an authorized Vice President of Harsco. The obligation of Guarantor is a primary and unconditional obligation and shall not be affected in any manner by any change in the status of Customer or by any change from any cause whatsoever. This Guaranty shall not be revoked by the death or incapacity of any Guarantor but shall remain in full force and effect until terminated in a writing executed by Harsco and Guarantor. Guarantor hereby waives any defenses whatsoew~r which Guarantor and/or Customer may have with respect to any of the obligations or liabilities of Guarantor to Harsco under this Guaranty including, without limitation to the generality hereof, defenses arising out of estoppel, laches or any statute of limitations. It is the specific intention and agreement of the parties that this Agreement for any purpose be governed and interpreted solely by and under the laws of the Commonwealth of Pennsylvania in which jurisdiction the principal offices of Harsco Corporation are located. It is the specific intention and agreernent of the parties that this Agreement be suitable for filing and confession of judgment i~ the event of a default hereunder. If any provisions of this Guaranty Agreement shall contravene or be invalid under the laws of the United States or any State, such contravention or invalidity shall not invalidate this Agreement or any ~d~er ag~eernent which is part of this transaction, but shall be construed as not containing such provision, and the rights and obligations of the parties under~'Guaranty Agreement shall be interpreted, construed and enforced accordingly. IN WITNESS WHEREOF, the parties have executed this Guaranty Agreement the day and year first above written. (Name and address) WITNESS: GUARANTOR (Name) Harsco Corporation, Personal Guaranty Contract GUARANTY AGREEMENT dated this 10th day of September, 2002 for and in consideration of the extension of credit to Fischer Bottle Gas and/or his agents of Mark A. Fischer (referred to hereinafter as the "Guarantor"), and other good and sufficient considerations to the undersigned accruing, I (or we, jointly and severally) hereby give this Continuing Guaranty to Harsco Corporation, Gas & Fluid Control Group (referred to hereinafter as the "Harsco"), for the payment in full, together with all interest, fees and charges of whatsoever nature and kind of any and all indebtedness of the Guarantor to the Harsco, whether an open account, credit card account, or evidenced by note, secured or unsecured, due and owing at the present time, or that may hereafter be due and owing by Guarantor to Harsco, and it is further agreed that if bills are not paid when due, I (or we or any of us) will personally pay t;he same upon notice and demand. It is agreed that this Continuing Guaranty applies to any exten.~;ions or renewals of credit given by Harsco to Guarantor. It is specifically understood and agreed that the Harsco shall not be required to exhaust its legal remedies for recovery and collection against the Guarantor before looking to the undersigned (or any of them) for payment of this account, but that if the account is not paid when due Harsco may, at once, notify the undersigned, and upon receipt of such notice that the said account is past due and unpaid, the undersigned assumes liability therefor and agrees to pay the same without delay or defalcation. The discharge of Guarantor in bankruptcy will not relieve the undersigned from liability with regard to any amount due and owing under this Continuing Guaranty. It is distinctly understood and agreed that Harsco may enter suit against the undersigned (or any one or more of the undersigned) for the recovery of the entire amount of said indebtedness hereby secured, and may recover judgment therefore against the undersigned (or any one or more of said guarantors). It is also understood and agreed that in the event the Harsco commences such suit then and in that event I (or we and each of us) shall pay for the cost of suit and attorneys' fees and commissions for collection, in addition to the indebtedness hereby secured. It is further understood and agreed that the undersiglned, each for himself, his heirs, executors, and administrators, does hereby waive the benefil[ of any and all state laws exempting real and/or personal property from levy and sale on execution, and agrees to the immediate issuance and levying of writs of execution upon his interests in any real estate of personal property and the subjugation thereof to sale for satisfaction of any such judgment or judgments. The undersigned hereby waives notice of the acceptance of this guaranty, notice of demand and maturity of payments to become due, notice of default in payment by the Guarantor and all such notices required or customarily given under like circumstances. It is also specifically understood and agreed that I (or we and each of us) expressly consent that the time of payment of any indebtedness hereby secured may be extended, or that the Harsco may at any time require and accept other security of any nature whatsoever from Guarantor without notice to consent from me (or us or each of us). I (or we and each of us jointly and severally) agree to be held responsible for said obligations precisely as if the same had been contracted and due and owing by the undersigned or each of us in person. This Continuing Guaranty binds each of the signers hereto, jointly and severally, their respective heirs, executors, and administrators and shall extend to and cover all renewals of any claims or demands guaranteed under this instrument, or the extension of time of payment thereof, and shall remain in full force and effect from this date until revoked by the undersigned in writing to be sent by registered mail to the Vice President-Controller at P. O. Box 8316, City of Camp Hill; State of Pennsylvania 17001-8316, evidence of such mailing robe established by postal receipt. No addition, alteration, modification, novation or change in any of the terms or conditions of this Guaranty shall be binding upon the Harsco unless made in wdting and signed by an authorized Vice President of Harsco. The obligation of Guarantor is a primary and unconditional obligation and shall not be affected in any manner by any change in the status of Customer or by any change from any cause whatsoever. This Guaranty shall not be revoked by the death or incapacity of any Guarantor but shall remain in full force and effect until terminated in a writing executed by Harsco and Guarantor. Guarantor hereby waives any defenses whatsoever which Guarantor and/or Customer may have with respect to any of the obligations or liabilities of Guarantor to Harsco under this Guaranty including, without limitation to the generality hereof, defenses arising out of estoppel, laches or any statute of limitations. It is the specific intention and agreement of the parties that this Agreement for any purpose be governed and: interpreted solely by and under the laws of the Commonwealth of Pennsylvania in which jurisdiction the principal offices of Harsco Corporation are located. It is the specific intention and agreement of the parties that this Agreement be suitable for filing and confession of judgment in the event of a default hereunder. If any provisions of this Guaranty Agreement shall contravene or be invalid under the laws of the United States or any State, such contravention or invalidity shall not invalidate this Agreement or any other agreement which is part of this transaction, but shall be construed as not containing such provision, and the rights and obligations of the parties under this Guaranty Agreement shall be interpreted, construed and enforced accordingly. IN WITNESS WHEREOF, the parties have executed this Guaranty Agreement the day and year first above written. (Name and address) WITNESS: GUARANTOR .. Mark A. I~ischer (Name) Harsco Corporation, Personal Guaranty Contract GUARANTY AGREEMENT dated this 10th day of September, 2002 for and in consideration of the extension of credit to Fischer Bottle Gas and/or his agents of Mark A. Fischer (referred to hereinafter as the "Guarantor")i and other good and sufficient considerations to the undersigned accruing, I (or we, jointly and severally) hereby give this Continuing Guaranty to Harsco Corporation, Gas & Fluid Control Group (referred to hereinafter as the "Harsco"), for the payment in full; together with all interest, fees and charges of whatsoever nature and kind of any and all indebtedness of the Guarantor to the Harsco, whether an open account, credit card account, or evidenced by note, secured or unsecured, due and owing at the present time, or that may hereafter be due and owing by Guarantor to Harsco, and it is further agreed that if bills are not paid when due, I (or we or any of us) will personally pay tha same upon notice and demand. It is agreed that this Continuing Guaranty applies to any extensiens or renewals of credit given by Harsco to Guarantor. It is specifically understood and agreed that the Harsco shall not be required to exhaust its legal remedies for recovery and collection against the Guarantor before looking to the undersigned (or any of them) for payment of this account, but that if the account is not paid when due Harsco may, at once, notify the undersigned, and upon reoeipt of such notice that the said account is past due and unpaid, the undersigned assumes liability therefor and agrees to pay the same without delay or defalcation. The discharge of Guarantor in bankruptcy will not relieve the undersigned from liability with regard to any amount due and owing under this Continuing Guaranty. It is distinctly understood and agreed that Harsco may enter suit against the undersigned (or any one or more of the undersigned) for the recovery of the entire amount of said indebtedness hereby secured, and may recover judgment therefore against the undersigned (or any one or more of said guarantors), it is also understood and agreed that in the event the Harsco commences such suit then and in that event I (or we and each of us) shall pay for the cost of suit and attorneys' fees and commissions for collection, in addition to the indebtedness hereby secured. It is further understood and agreed that the undersigned, each for himself, his heirs, executors, and administrators, does hereby waive the benefit of any and all state laws exempting real and/or personal property from levy and sale on execution, and agrees to the immediate issuance and levying of writs of execution upon his interests in any real estate of personal property and the subjugation thereof to sale for satisfaction of any such judgment or judgments. The undersigned hereby waives notice of the acceptance of this guaranty, notice of demand and maturity of payments to become due, notice of default in payment by the Guarantor and all such notices required or customarily given under like circumstances. It is also specifically understood and agreed that I (or we and each of us) expressly' consent that the time of payment of any indebtedness hereby secured may be extended, or that the Harsco may at any time require and accept other security of any nature whatsoever from Guarantor without notice to consent from me (or us or each of us). I (or we and each of us jointly and severally) agree to be held responsible for said obligations precisely as if the same had been contracted and clue and owing by the undersigned or each of us in person. This Continuing Guaranty binds each of the signers hereto, jointly and severally, their respective heirs, executors, and administrators and shall extend to and cover all renewals of any claims or demands guaranteed under this instrument, or the extension of time of payment thereof, and shall remain in full force and effect from this date until revoked by the undersigned in writing to be sent by registered mail to the Vice President-Controller at P. O. Box 8316, City of Camp Hill, State of Pennsylvania 17001-8316, evidence of such mailing to be established by postal receipt, No addition, alteration, modification, novation or change in any of the terms or conditions of this Guaranty shall be binding upon the Harsco unless made in writing and signed by an authorized Vice President of Harsco. The obligation of Guarantor is a primary and unconditional obligation and shall not be affected in any manner by any change in the status of Customer or by any change from any cause whatsoever. This Guaranty shall not be revoked by the death or incapacity of any Guarantor but shall remain in full force and effect until terminated in a writing executed by Harsco and Guarantor. Guarantor hereby waives any defenses whatsoever which Guarantor and/or Customer may have with respect to any of the obligations or liabilities of Guarantor to Harsco under this Guaranty including, without limitation to the generalil~ hereof, defenses adsing out of estoppel, laches or any statute of limitations. It is the specific intention and agreement of the parties that this Agreement for any purpose be governed and interpreted solely by and under the laws of the Commonwealth of Pennsylvania in which jurisdiction the principal offices of Harsco Corporation are located. It is the specific intention and agreement of the parties that this Agreement be suitable for filing aAd confessioq of judgment in the event of a default hereunder. If any provisions of this Guaranty A~i'~ement shall contravene Or be invalid under the laws of the United States or any State, such contravention or invalidity shall not invalidate this Agreement or any other agreement which is part of this transaction, but shall be construed as not containing such provision, and the rights and obligations of the parties under this Guaranty Agreement shall be interpreted, construed and enforced accordingly. IN WITNESS WHEREOF, the parties have executed this Guaranty Agreement the day and year first above written. WI~T~_S: . (Name and address) WITNESS: GUARANTOR Mark A. Fischer (Name) Harsco Corporation, Personal Guaranty Contract GUARANTY AGREEMENT dated this 10th day of September, 2002 for and in consideration of the extension of credit to Fischer Bottle Gas and/or his agents of Mark A. Fischer (referred to hereinafter as the "Guarantor"), and other good and sufficient considerations to the undersigned accruing, I (or we, jointly and severally) hereby give this Continuing Guaranty to Harsco Corporation, Gas & Fluid Control Group (referred to hereinafter as the "Harsco"), for the payment in full, together with all interest, fees and charges of whatsoever nature and kind of any and all indebtedness of the Guarantor to the Harsco, whether an open account, credit card account, or evidenced by note, secured or unsecured, due and owing at the present time, or that may hereafter be due and owing by Guarantor to Harsco, and it is further agreed that if bills are not paid when due, I (or we or any of us) will personally pay the same upon notice and demand. It is agreed that this Continuing Guaranty applies to any extensions or renewals of credit given by Harsco to Guarantor. It is specifically understood and agreed that the Harsco shall not be required to exhaust its legal remedies for recovery and collection against the Guarantor before looking to the undersigned (or any of them) for payment of this account, but that if the account is not paid when due Harsco may, at once, notify the undersigned, and upon receipt of such notice that the said account is past due and unpaid, the undersigned assumes liability therefor and agrees to pay the same without delay or defalcation. The discharge of Guarantor in bankruptcy will not relieve the undersigned from liability with regard to any amount due and owing under this Continuing Guaranty. it is distinctly understood and agreed that Harsco may enter suit against the undersigned (or any one or more of the undersigned) for the recovery of the entire amount of said indebtedness hereby secured, and may recover judgment therafore against the undersigned (or any one or more of said guarantors). It is also understood and agreed that in the event the Harsco commences such suit then and in that event I (or we and each of us) shall pay for the cost of suit and attorneys' fees and commissions for collection, in addition to the indebtedness hereby secured. It is further understood and agreed that the undersigned, each for himself, his heirs, executors, and administrators, does hereby waive the benefit of any and all state laws exempting real and/or personal property from levy and sale on execution, .and agrees to the immediate issuance and levying of writs of execution upon his interests in any real estate of personal property and the subjugation thereof to sale for satisfaction of any such judgment or judgments. The undersigned hereby waives notice of the acceptance of this guaranty, notice of demand and maturity of payments to become due, notice of default in payment by the Guarantor and all such notices required or customarily given under like circumstances. It is also specifically understood and agreed that I (or we and each of us) expressly consent that the time of payment of any indebtedness hereby secured may be extended, or that the Harsco may at any time require and accept other security of any nature whatsoever from Guarantor without notice to consent from me (or us or each of us). I (or we and each of us jointly and severally) agree to be held responsible for said obligations precisely as if the same had been contracted and due and owing by the undersigned or each of us in person. This Continuing Guaranty binds each of the signers hereto, jointly and severally, their respective heirs, executors, and administrators and shall extend to and cover renewals of any claims or demands guaranteed under this instrument, or the extension of time of payment thereof, and shall remain in full force and effect from this date until revoked by the undersigned in writing to be sent by registered mail to the Vice President-Controller at P. O. Box 8316, City of Camp Hill, State of Pennsylvania 17001-8316, evidence of such mailing to be established by postal receipt. No addition, alteration, modification, novation or change in any of the terms or conditions of this Guaranty shall be binding upon the Harsco unless made in writing and signed by an authorized Vice President of Harsco. The obligation of Guarantor is a primary and unconditional obligation and shall not be affected in any manner by any change in the status of Customer or by any change from any cause whatsoever. This Guaranty shall not be revoked by the death or incapacity of any Guarantor but shall remain in full force and effect until terminated n a wr t ng executed by Harsco and Guarantor Guarant°r hereby wa yes any defenses whatsoever which Guarantor and/or Customer may have with respect to any of the obligations or liabilities of Guarantor to Harsco under this Guaranty including, without limitation to the generality ~ereof defenses arising out of estoppel, laches or any statute of limitations. It is the specific ntantion and agreement of the parties that this Agreement for any purpose be governed and interpreted solely by and under the laws of the Commonwealth of Pennsylvania n which .jurisdiction t ~e principal offices of Harsco Corporation are located. It s the spe~:ific intention and agreement of the parties that this Agreement be suitable for filing and confession of.Judgment in the event of a default hereunder, if any provisions of this Guaranty Agreement shall contravene or be invalid under the laws of the United States or any State, such contravention or invalidity shall net invalidate this Agreement or any other agreement which is part of this transaction, but shall be oonstrued as not containing such provision, and the rights and obligations of the parties under this Guaranty Agreement shall be interpreted, construed and enforced accordingly. IN WITNESS WHEREOF, the parties have executed this Guaranty Agreement the day and year first above written. ame and address~ WITNESS: GUARANTOR Mark A. Fi~scher (Name) -- Harsco Corporation, AFFIDAVIT CYF SERVICE Commonwealth of Pennsylvania Case Number: 04-3753 CIVIL TERM County of CUMBERLAND Common Pleas Court Plaintiff: AMERICAN WELDING & TANK GROUP, A DIVISION OF HARSCO CORPORATION VS. Defendant: DDL, INC. D/BIA FISHER LP GAS, FISHER BOTTLE GAS, TERESA E. FISHER AND MARK A. FISHER For: John W. Purcell Jr. PURCELL, KRUG & HALLER Received by CHOICE PROCESS - TAMPA on the 9th day of August, 2004 at 9:25 am to be served on TERESA A. ~ISHER,'~7254CABERFAEHIGHWAY, WELLSTO~ MICHIGAN49689. ,~"~.~,~/ ~4~o/.~L~, ~ ein.gdulysw°rn, dep°se and say that on the /~ 7~day of_,~..~ ,208~'/ at =/ ~,~'/~.m.,executsd service by delivering a true copy of the NOTICE AND COMPLAIN'r in accordance with state statutes in the manner marked below: ( ) PUBLIC AGENCY: By serving the within-named agency. ,~SUBSTITUT, E SERVICE: By servingx/C~'~/~ ~ORPORATE SERVICE: By serving/~'~~ / ( ) OTHER SERVICE: As described in the Comments below by serving as as as of as () NON SERVICE: For the reason detailed in the Comments below. COMMENTS: I certify that I have no interest in the above action, am of legal age and have proper authority in the jurisdiction in which this service was made. cS~bsc~/e,d/~Dd/~Sw~rn to~e.~,fl me on th~,SZ('day .'"-f/,I C/L~.~. ~T- ,c::~c'~''~y~the affiant who is pem~nal~nown to me. NOTARY PROCESS SERVER # Appointed in accordance with State Statutes CHOICE PROCESS - TAMPA P.O. Box 1;!15 Tampa, FL 33601 (813) 229-1.444 Our Job Serial Number: 2004004092 ~ A~ H~i~~ Database Ser~4ce$ nc P ~t ~, ~'~ , .- ~ess ~r's T=,= V55, A~ing ~ ,~ ~ ~ AFFIDAVIT OF SERy_ICE Commonwealth of Pennsylvania County of CUMBERLAND Common Pleas Court Case Number: 04-3753 CIVIL TERM Plaintiff: AMERICAN WELDING & TANK GROUP, A DIVISION OF HARSCO CORPORATION VS. Defendant: DDL, INC. DIBIA FISHER LP GAS, FISHER BOTTLE GAS, TERESA E. FISHER AND MARK A: FISHER For: John W. Purcell Jr. PURCELL, KRUG & HALLER Received by CHOICE PROCESS - TAMPA on the 9th day of August, 2004 at 9:25 am to be served on MARK A. FISHER, 17254 CABER;:AE HIGHWAY, WELLSTON, MICHIGAN 4961~9. I, '~{ ~/, ! ~'-~/~ ~-/· h , be ng duly sworn, depose and say that on the/~' ~'~/day of )~ ~. ,20 ~ ~ at _.~.: ~-~ ~.m., executed service by delivering a true copy of the NOTICE AND COMPLAINT in accordance with state statutes in th~ msnner marked below: ( ) PUBLIC AGENCY: By serving the within-named agency. as of () SUBSTITUTE SERVICE: By serving as ERVICE: By serving as ( ) OTHER SERVICE: As described in the Comments below by serving as () NON SERVICE: For the reason detailed in the Comments below. COMMENTS: I certify that I have no interest in the above action, am of legal age andl have proper authorit~ in the jurisdiction in which this service was madc. ~,, PROCESS SERVER # Appointed in accordance with State Statutes CHOICE PROCESS - TAMPA PoO. Box 1215 Tampa, FL 33601 (813) 22¢,)-1444 Our Job :Serial Number: 2004004093 AFFIDAVIT OF SERVICE Commonwealth of Pennsylvania Case Number: 04-3753 CIVIL TERM County of CUMBERLAND, Common Pleas Court Plaintiff: AMERICAN WELDING & TANK GROUP, A DIVISION OF HARSCO CORPORATION VS. Defendant: DDL, INC. DIBIA FISHER LP GAS, FISHER BOTTLE GAS, TERESA E. FISHER AND MARK A. FISHER For: John W. Purcell Jr. PURCELL, KRUG & HALLER Received by CHOICE PROCESS - TAMPA cn the 9th dey of AuGust, 2004 at 9:25 am to be sepzed c,n FISHER BOTTLE GAS, 17254 CASERFAE HIGHWAY, WELLSTON, MICHIGA/N ~,96~9. ~, ~-^ t~ J · .~'~. ~ , being duly sworn, depose and say that on the ~ day of.~=~___, 20~ ~ at ~ :.~.m., executed service by delivering a true copy of the NOTICE! AND COMPLAINT in accordance with state statutes in the manner marked below: ( ) PUBLIC AGENCY: By serving the within-named agency. () SUBSTITUTE SERVICE: By serving as as of Y~CORPORATE SERVICE: By serving/~'~-d,,~ ~ ~ ~;,~ ( ) OTHER SERVICE: As described in the Comments below by serving as as ( ) NON SERVICE: For the reason detailed in the Comments below. COMMENTS: I certify that I have no interest in the above action, am of legal age and have proper authority in the jurisdiction in which this service was made. YL Sub~dbed,and ~wor ~n~3rl~[o/re me on the(~ day of ~ ~ 5~y the affiant who is pemq~ known t~e. , N~RY PROCES,~ SERVER # Appointed in accordance with StatE; Statutes CHOICE PROCESS - TAMPA P.O. Box 1215 Tampa, FI. 33601 (813) 229-1444 Our Job Serial Number: 2004004091 AFFIDAVIT OF SERVICE Commonwealth of Pennsylvania County of CUMBERLANd'. Common Pleas Court Case Number: 04-3753 CIVIL TERM Plaintiff: AMERICAN WELDING & TANK GROUP, A DIVISION OF HARSCO CORPORATION VS. Defendant: DDL, INC. D/B/A FISHER LP GAS, FISHER BOTTLE GAS, TERESA IE. FISHER AND MARK A. FISHER For: John W. Purcell Jr. PURCELL, KRUG & HALLER Rece~;ed by CHOICE pROcEss - TAMPA on th3 9th day of A,!gust, 2004 a~ 9:25 am to be ser.,ed on DDL, INCORP?.~RATED DIR!A F!~HER LP GAC, 172.54 CADERFAE HIGHWAY, WELLSTON~MICHIGAN 49689. I, O~ ~4, f-'4 ~- ~v ~J ~ ~ , being duly sworn, depose and say that on the / ? 7'~clay of .~_/~. , 20d ~/at ~': Z¢/.m., executed service by delivering a true copy of the NOTICE AND COMPLAINT'in &ccordance with state statutes in the manner marked below: ( ) PUBLIC AGENCY: By serving the within-named agency. ~CORPORATE SE .I~V~IOE: By serving//~'~,~./ as of as ( ) OTHER SERVICE: As described in the Comments below by serv ng as () NON SERVICE: For the reason detailed in the Comments below. COMMENTS: I certify that I have no interest in the above action, am of legal age and have proper authority in the jurisdiction in which this service was made. Subs~i~e~[.and .Sworn to ~e. fgr, ezme on the~_ day of ~zT~/~/~'~ 7~ , ~/the affiant who is person~ known to me. PROCESS SERVER # Appointed in accordance with State Statutes CHOICE PROCESS - TAMPA P.O. Box: 1215 Tampa, FL 33601 (813) 229-1444 Our Job :Serial Number: 2004004090 John W. Purcell, Jr. I.D. 29955 Purcell, Krug & Hailer 1719 North Front Street Harrisburg, PA 17102 (717) 234-4178 jourcell~Dkh.com AMERICAN WELDING & TANK GROUP, A DIVISION OF HARSCO CORPORATION, Plaintiff VS. DDL, INC. d/b/a FISHER LP GAS, FISHER BO~i~LE GAS, TERESA E. FISHER AND MARK A. FISHER, Defendant : IN THE COURT OF COMMON PLEAS : CUMBERLAND COUNTY, PENNSYLVANIA : : CIVIL ACTION-LAW : NO. 04-3753 CIVIL TERM PRAECIPE TO THE PROTHONOTARY: Please enter judgment in favor of the Plaintiff and against the Defendants in the above matter, for failure to file a response to the Complaint, within twenty days of service, and after Ten Day Notice pursuant to Pa. R.C.P. 237.1. Judgment shall be as follows: 1. In favor of the Plaintiff and against the Defendants for $255,655.78 as of June 30, 2004, plus continuing interest thereafter, plus reasonable Attorney's fees and costs of suit. I hereby certify that a Ten Day Notice of Default was mailed to the Defendants on September 9, 2004 in accordance with the above referenced Rule. Date: September 22, 2004 PURCELL, KRUG & HALLER J~R1h V~L )Purcell, Jr., Esquire ~719~'or~h Front Street tTa~sburg, PA 17102 (717) 234-4178 AMERICAN WELDING & TANK GROUP, A DIVISION OF HARSCO CORPORATION, Plaintiff VS. DDL, INC. d/b/a FISHER LP GAS, FISHER BOTTLE GAS, TERESA E. FISHER AND MARK A. FISHER, Defendants : IN THE COURT OF COMMON PLEAS : CUMBERLAND COUNTY, PENNSYLVANIA : CIVIL ACTION-LAW : NO. 04-3753 CIVIL TERM NOTICE TO PLEAD TO: DDL, Inc. d/b/a Fisher LP Gas, Defendant 17254 Caberfae Highway Wellston, MI 49689 DATE OF NOTICE: September 9, 2004 YOU ARE IN DEFAULT BECAUSE YOU HAVE FAILED TO ENTER A WRITTEN APPEARANCE PERSONALLY OR BY ATTORNEY AND FILE IN WRITING WITH THE COURT YOUR DEFENSES OR OBJECTIONS TO THE CLAIMS SET FORTH AGAINST YOU. UNLESS YOU ACT WITHIN TEN DAYS FROM THE DATE OF THIS NOTICE A JUDGMENT MAY BE ENTERED AGAINST YOU WITHOUT A HEARING AND YOU MAY LOSE YOUR PROPERTY OR OTHER IMPORTANT RIGHTS. YOU SHOULD TAKE THIS NOTICE TO A LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER OR CANNOT AFFORD ONE, GO TO OR TELEPHONE THE FOLLOWING OFFICE TO FIND OUT WHERE YOU CAN GET LEGAL HELP. Cumberland County Bar Association 2 Liberty Avenue Carlisle, PA 17013 (717)240-3166 or (800) 990-9108 I.,1~. 29955 "~719~kSrth Front Street 'Fta~sburg, PA 17102 (717) 234-4178 Attorney for Plaintiff NOTICIA IMPORTANTE TO: DDL, Inc.,d/b/a Fisher LP Gas, Defendant 17254 Caberfae Highway Wellston, MI 49689 FECHA DE NOTICIA: September 9, 2004 USTED NO HA COMPLIDO CON EL AVISO ANTERIOP, PORQUE HA FALTADO EN TOMAP, MEDIDAS P,EQUERIDAS RESPECTO A ESTE CASO. SI USTED NO ACUTA DENTP,O DE DIEZ (10) DIAS DESDE LA FECHA DE ESTA NOTIClA, ES POSIBLE QUE UN FALLO SEP,IA P,ESITRADO CONTRA USTED SIN UNA AUDENClA Y USTED PODP,IA PEP, DER SU PROPIEDAD O OTP,OS DERECHOS IMPOP,TANTES. USTED DEBE LLEVAP, ESTA NOTIClA A SU ABOGADO EN SEGUIDA. SI USTED NO TIENE ABOGADO O NO TIENE CON QUE PAGAR LOS SERVIClOS DE UN ABAOGADO, VAYA O LLAME A LA OFIClNA ABA JO PARA AVERIGUAP, A DONDE USTED PUEDE OBTENEP, LA AYUDA LEGAL. Cumberland County Bar Association 2 Liberty Avenue Carlisle, PA 17013 (717)240-3186 or (800) 990-9108 AMERICAN WELDING & TANK GROUP, A DIVISION OF HARSCO CORPORATION, Plaintiff VS. DDL, INC. d/b/a FISHER LP GAS, FISHER BOTTLE GAS, TERESA E. FISHER AND MARK A. FISHER, Defendants : IN THE COURT OF COMMON PLEAS : CUMBERLAND COUNTY, PENNSYLVANIA : CIVIL ACTION-LAW : NO. 04-3753 CIVIL TERM NOTICE TO PLEAD TO: Fisher Bottle Gas, Defendant 17254 Caberfae Highway Wellston, MI 49689 DATE OF NOTICE: September 9, 2004 YOU ARE IN DEFAULT BECAUSE YOU HAVE FAILED TO ENTER A WRITTEN APPEARANCE PERSONALLY OR BY ATTORNEY AND FILE IN WRITING WITH THE COURT YOUR DEFENSES OR OBJECTIONS TO THE CLAIMS SET FORTH AGAINST YOU. UNLESS YOU ACT WITHIN TEN DAYS FROM THE DATE OF THIS NOTICE A JUDGMENT MAY BE ENTERED AGAINST YOU WITHOUT A HEARING AND YOU MAY LOSE YOUR PROPERTY OR OTHER IMPORTANT RIGHTS. YOU SHOULD TAKE THIS NOTICE TO A LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER OR CANNOT AFFORD ONE, GO TO OR TELEPHONE THE FOLLOWING OFFICE TO FIND OUT WHERE YOU CAN GET LEGAL HELP, Cumberland County Bar Association 2 Liberty Avenue Carlisle, PA 17013 (717)240-3166 or (800) 990-9108 BY~ Jr".-1.Z.l.g4~orth Front Street Harrisburg, PA 17102 (717) 234-4178 Attorney for Plaintiff NOTICIA IMPORTANTE TO: Fisher Bottle Gas, Defendant 17254 Caberfae Highway Wellston, MI 49689 FECHA DE NOTICIA: September 9, 2004 USTED NO HA COMPLIDO CON EL AVISO ANTERIOR PORQUE HA FALTADO EN TOMAR MEDIDA$ REQUERIDAS RESPECTO A ESTE CASO. SI USTED NO ACUTA DENTRO DE DIEZ (10) DIAS DESDE LA FECHA DE ESTA NOTICIA, ES POSIBLE QUE UN FALLO SERIA RESITRADO CONTRA USTED SIN UNA AUDENCIA Y USTED PODRIA PERDER SU PROPIEDAD O OTROS DERECHOS IMPORTANTES. USTED DEBE LLEVAR ESTA NOTICIA A SU ABOGADO EN SEGUIDA. SI USTED NO TIENE ABOGADO O NO TIENE CON QUE PAGAR LOS SER¥1CIOS DE UN ABAOGADO, VAYA O LLAME A LA OFICINA ABA JO PARA AVERIGUAR a DONDE USTED PUEDE OBTENER LA AYUDA LEGAL. Cumberland County Bar Association 2 Liberty Avenue Carlisle, PA 17013 (717)240-3166 or (800) 990-9108 AMERICAN WELDING & TANK GROUP, A DIVISION OF HARSCO CORPORATION, Plaintiff VS. DDL, INC. d/b/a FISHER LP GAS, FISHER BOTTLE GAS, TERESA E. FISHER AND MARK A. FISHER, Defendants : IN THE COURT OF COMMON PLEAS : CUMBERLAND COUNTY, PENNSYLVANIA : CIVIL ACTION-LAW : NO. 04-3753 CIVIL TERM NOTICE TO PLEAD TO: Teresa E. Fisher, Defendant 17254 Caberfae Highway Wellston, MI 49689 DATE OF NOTICE: September 9, 2004 YOU ARE IN DEFAULT BECAUSE YOU HAVE FAILED TO ENTER A WRITTEN APPEARANCE PERSONALLY OR BY ATTORNEY AND FILE IN WRITING WITH THE COURT YOUR DEFENSES OR OBJECTIONS TO THE CLAIMS SET FORTH AGAINST YOU, UNLESS YOU ACT WITHIN TEN DAYS FROM THE DATE OF THIS NOTICE A JUDGMENT MAY BE ENTERED AGAINST YOU WITHOUT A HEARING AND YOU MAY LOSE YOUR PROPERTY OR OTHER IMPORTANT RIGHTS. YOU SHOULD TAKE THIS NOTICE TO A LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER OR CANNOT AFFORD ONE, GO TO OR TELEPHONE THE FOLLOWING OFFICE TO FIND OUT WHERE YOU CAN GET LEGAL HELP. Cumberland County Bar Association 2 Liberty Avenue Carlisle, PA 17013 (717)240-3166 or (800) 990-9108 PURER BY ~. /LD. 29955 "4-719 North Front Street Harrisburg, PA 17102 (717) 234-4178 Attorney for Plaintiff NOTICIA IMPORTANTE TO: Teresa E. Fisher, Defendant 17254 Caberfae Highway Wellston, MI 49689 FECHA DE NOTICIA: September 9, 2004 USTED NO HA COMPLIDO CON EL AVISO ANTERIOR PORQUE HA FALTADO EN TOMAR MEDIDAS REQUERIDAS RESPECTO A ESTE CASO. SI USTED NO ACUTA DENTRO DE DIEZ (10) DIAS DESDE LA FECHA DE ESTA NOTICIA, ES POSIBLE QUE UN FALLO SERIA RESITRADO CONTRA USTED SIN UNA AUDENCIA Y USTED PODRIA PERDER SU PROPIEDAD O OTROS DERECHOS IMPORTANTES. USTED DEBE LLEVAR ESTA NOTIClA A SU ABOGADO EN SEGUIDA. SI USTED NO TIENE ABOGADO O NO TIENE CON QUE PAGAR LOS SERVICIOS DE UN ABAOGADO, VAYA O LLAME A LA OFICINA ABA JO PARA AVERIGUAR A DONDE USTED PUEDE OBTENER LA AYUDA LEGAL. Cumberland County Bar Association 2 Liberty Avenue Carlisle, PA 17013 (717)240-3166 or (800) 990-9108 AMERICAN WELDING & TANK GROUP, A DIVISION OF HARSCO CORPORATION, Plaintiff VS. DDL, INC. d/b/a FISHER LP GAS, FISHER BOTTLE GAS, TERESA E. FISHER AND MARK A. FISHER, Defendants : IN THE COURT OF COMMON PLEAS : CUMBERLAND COUNTY, PENNSYLVANIA : CIVIL ACTION-LAW : NO. 04-3753 CIVIL TERM NOTICE TO PLEAD TO: Mark A. Fisher LP Gas, Defendant 17254 Caberfae Highway Wellston, MI 49689 DATE OF NOTICE: September 9, 2004 YOU ARE IN DEFAULT BECAUSE YOU HAVE FAILED TO ENTER A WRITTEN APPEARANCE PERSONALLY OR BY ATTORNEY AND FILE IN WRITING WITH THE COURT YOUR DEFENSES OR OBJECTIONS TO THE CLAIMS SET FORTH AGAINST YOU. UNLESS YOU ACT WITHIN TEN DAYS FROM THE DATE OF THIS NOTICE A JUDGMENT MAY BE ENTERED AGAINST YOU WITHOUT A HEARING AND YOU MAY LOSE YOUR PROPERTY OR OTHER IMPORTANT RIGHTS. YOU SHOULD TAKE THIS NOTICE TO A LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER OR CANNOT AFFORD ONE, GO TO OR TELEPHONE THE FOLLOWING OFFICE TO FIND OUT WHERE YOU CAN GET LEGAL HELP. Cumberland County Bar Association 2 Liberty Avenue Carlisle, PA 17013 (717)240-3166 or (800) 990-9108 BY~"~ ) ~ ~ (' John/IN. Purcell, Jr. ~ yD. 29955 17',,..~tg'North Front Street Harrisburg, PA 17102 (717) 234-4178 Attorney for Plaintiff NOTICIA IMPORTANTE TO: Mark A. Fisher, Defendant 17254 Caberfae Highway Wellston, MI 49689 FECHA DE NOTICIA: September 9, 2004 USTED NO HA COMPLIDO CON EL AVISO ANTERIOR PORQUE HA FALTADO EN TOMAR MEDIDAS REQUERIDAS RESPECTO A ESTE CASO. SI USTED NO ACUTA DENTRO DE DIEZ (10) DIAS DESDE LA FECHA DE ESTA NOTICIA, ES POSlBLE QUE UN FALLO SERIA RESITRADO CONTRA USTED SIN UNA AUDENCIA Y USTED PODRIA PERDER SU PROPIEDAD O OTROS DERECHOS IMPORTANTES. USTED DEBE LLEVAR ESTA NOTIClA A SU ABOGADO EN SEGUIDA. SI USTED NO TIENE ABOGADO O NO TIENE CON QUE PAGAR LOS SERVICIOS DE UN ABAOGADO, VAYA O LLAME A LA OFIClNA ABA JO PARA AVERIGUAR A DONDE USTED PUEDE OBTENER LA AYUDA LEGAL. Cumberland County Bar Association 2 Liberty Avenue Carlisle, PA 17013 (717)240-3166 or (800) 990-9108 AMERlCAN WELDING & TANK GROUP, A DIVISION OF HARSCO CORPORATION, Plaintiff : IN THE COURT OF COMMON PLEAS : CUMBERLAND COUNTY, PENNSYLVANIA : CIVIL ACTION-LAW vs. DDL, INC. d/b/a FISHER LP GAS, FISHER BOITLE GAS, TERESA E. FISHER AND MARK A. FISHER, Defendant : NO. 04 - 3"'1$3 C!.iUll '-r E.a.rY"\ NOTICE You have been sued in court. If you wish to defend against the claims set forth in the following pages, you must take action within twenty (20) days after this complaint and notice have been served. To defend against the aforementioned claims, a written appearance stating your defenses and objections must be entered and filed in writing by you, the defendant, or by an attorney. You are warned that if you fail to take action against these claims, the court may proceed without you and a judgement for any money claimed in the complaint or for any other claim required by the plaintiff may be entered against you by the court without further notice. You may lose money, property or other rights important to you. YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER OR CANNOT AFFORD ONE, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW TO FIND OUT WHERE YOU CAN GET LEGAL HELP. Cumberland County Bar Association 32 S. Bedford Street Carlisle, PA. 17013 -- (717) 249-3166 (800) 990-9108 ~ NOTICIA Le han demandado a usted en la corte. Si usted quiere defenderse de estas damandas expuastas en las paginas siguientes, usted tiene viente (20) dias de plazo ai partir de la fecha de la demanda y la notificacion. Usted debe presentar una apariencia escrita 0 en persona 0 por abogado y archivar en la corte en forma escrita sus defensas 0 sus objeciones alas demandas en contra de su persona. Sea avisado que si usted no se defiende, la corte tomara medidas y puede entrar una orden contra usted sin previo aviso 0 notificacion y por cualquier queja 0 alivio que es pedido en la peticion de demanda. Usted puede perder dinero 0 sus propiedades 0 otros derechos importantes para usted. " LLEVE ESTA DEMANDA A UN ABODAGO IMMEDIATAMENTE. SI NO TIENNE ABOGAD 0 SI NO TIENE EL DINERO SUFICIENTE DE PAGAR TAL SERVICIO, VAYA EN PERSONA 0 LLAME POR TELEFONE A LA OFICINA CUYA DIRECCION SE ENCUENTRA ESCRlDA ABAJO PARA A VERlGUAR DONDE SE PUEDE CONSEGUIR ASSISTENCIA LEGAL: Cumberland County Bar Association 32 S. Bedford Street Carlisle, PA. 17013 -- (717) 249-3166 (800) 990-9108 AMERICAN WELDING & TANK GROUP, A DIVISION OF HARSCO CORPORATION, Plaintiff : IN THE COURT OF COMMON PLEAS : CUMBERLAND COUNTY, PENNSYLVANIA : CIVIL ACTION-LAW vs. DDL, INC. d/b/a FISHER LP GAS, FISHER BOTILE GAS, TERESA E. FISHER AND MARK A. FISHER, Defendant : NO. D'1- :3 7S 3 {}ioLT~ COMPLAINT 1. The Plaintiff is American Welding & Tank Group, a division of HARSCO Corporation, a corporation organized and existing under the laws of the state of Delaware, with an address of 4718 Old Gettysburg Road, Suite 300, P.O. Box 8316, Camp Hill, Cumberland, PA 17001-8316. 2. The Defendant DDL, Inc. d/b/a Fisher LP Gas (hereinafter "DDL"), is a corporation organized and existing under the laws of the state of Michigan, with an address of 17254 Caberfae Highway, Wellston, Michigan 49689. 3. The Defendant Fisher Bottle Gas, is a corporation organized and existing under the laws of the state of Michigan, with an address of 17254 Caberfae Highway, Wellston, Michigan 49689. 4. The Defendant Teresa A. Fisher, is an adult individual with an address of 17254 CabeIfae Highway, Wellston, Michigan 49689. 5. The Defendant Mark A. Fisher, is adult individual with an address of 17254 CabeIfae Highway, Wellston, Michigan 49689. COUNT I 6. Paragraphs 1-5 are hereby incorporated by reference as if set forth at length. 7. On or about May 2,2003, the Defendant DDL, Inc. d/b/a Fisher LP Gas entered into a Commercial Note pursuant to which it agreed to pay to the Plaintiff the sum of $103,692.58, in 59 consecutive installments of $2, 135.92, and one final installrnent commencing 30 days from the date of shipment of equipment separately purchased by Defendant until paid in full. A copy of the Note with all the terms is attached hereto and rnade a part hereof as Exhibit "A". 8. The equipment referenced in the Note was shipped on May 15, 2003, making the first payment due 30 days thereafter. 9. The Defendant is presently in default on its payments on the Note. 2 10. There is presently due and owing to the Plaintiff by the Defendant the sum of $90,864.01, plus accrued interest of $1,291.10, for a total unpaid balance on the Note of$92,155.11. COUNT II 11. Paragraphs 1-5 are hereby incorporated by reference as if set forth at length. 12. On or about August 18, 2003, the Defendant DDL, Inc. d/b/a Fisher LP Gas entered into a Commercial Note pursuant to which it agreed to pay the Plaintiff the sum of $60,000.00 in 59 consecutive installments of $1,235.91, and one final installment commencing 30 days from the date of shiprnent of equipment separately purchased by Defendant until paid in full. A copy of the Note and with all the terms is attached hereto and made a part hereof as Exhibit "B". 13. The equipment referenced in the Note was shipped on September 8, 2003 rnaking the first payment due 30 days thereafter. 14. The Defendant is presently in default on its payments on Note. 3 15. There is presently due and owing to the Plaintiff the surn of $54,731.12, plus accrued interest of $777.68, for a total unpaid balance on the Note of $55,508.80. COUNT III 16. Paragraphs 1-5 are hereby incorporated by reference as if set forth at length. 17. On or about August 28, 2002, the Defendant Fischer Bottle Gas entered into a Commercial Note pursuant to which is agreed to pay the Plaintiff the sum of $20,245.41 in 59 consecutive installments of $419.28, and one final installment commencing 30 days from the date of shipment of equipment separately purchased by Defendant until paid in full. A copy of the Note with all the terms is attached hereto and rnade a part hereof as Exhibit "C". 18. The equipment referenced in the Note was shipped on September 5, 2002, making the first payment due 30 days thereafter. 19. The Defendant is presently in default on its payments on Note. 4 20. There is presently due and owing to the Plaintiff by the Defendant the sum of $14,983.88, plus accrued interest of $218.56, for a total unpaid balance on the Note of $15,202.44. COUNT IV 21. Paragraphs 1-5 are hereby incorporated by reference as if set forth at length. 22. On or about September 4, 2002, the Defendant Fischer Bottle Gas entered into a Cormnercial Note pursuant to which it agreed to pay the Plaintiff the sum of $16,962.53 in 59 consecutive installments of $351.29, and one final installment cormnencing 30 days frorn the date of shipment of equipment separately purchased by the Defendant until paid in full. A copy of the Note with all the terms is attached hereto and rnade a part hereof as Exhibit "0". 23. The equiprnent referenced in the Note was shipped on September 4, 2003, making the first payment due 30 days thereafter. 24. The Defendant is presently in default on its payments on Note. 5 25. There is presently due and owing to the Plaintiff by the Defendant the amount of $12,559.03, plus accrued interest of $183.18, for a total unpaid balance on the Note of $12,742.21. COUNT V 26. Paragraphs 1-5 are hereby incorporated by reference as if set forth at length. 27. On or about August 28,2002, Defendant Fischer Bottle Gas entered into a Commercial Note pursuant to which it agreed to pay the sum of $14,332.31 in 59 consecutive installments of $296.82, and one final installment commencing 30 days from the date of shipment of equipment separately purchased by the Defendant until paid in full. A copy of the Note with all the terms is attached hereto and made a part hereof as Exhibit "En. 28. The equipment referenced in the Note was shipped on September 5, 2002, making the first payment due 30 days thereafter. 29. The Defendant is presently in default on its payments on Note. 6 30. There is presently due and owing to the Plaintiff by the Defendant the amount of $10,607.53, plus accrued interest of $154.72, for a total unpaid balance on the Note of$10,762.25. COUNT VI 31. Paragraphs 1-5 are hereby incorporated by reference as if set forth at length. 32. On or about September 10, 2002, Defendant Fischer Bottle Gas entered into a Commercial Note pursuant to which it agreed to pay the Plaintiff the sum $16,438.25 in 59 consecutive installments of $340.43, and one final installment commencing 30 days frorn the date of shipment of equipment separately purchased by Defendant until paid in full. A copy of the Note and all the terms is attached hereto and made a part hereof as Exhibit "F". 33. The equipment referenced in the Note was shipped on October 12, 2002, making the first payment due 30 days thereafter. 34. The Defendant is presently in default on its payments on Note. 7 35. There is presently due and owing to the Plaintiff by the Defendant the amount of $12,770.85, plus accrued interest of $186.28, for a total unpaid balance on the Note of $12,957.13. COUNT VII 36. Paragraphs 1-5 are hereby incorporated by reference as if set forth at length. 37. On or about September 10, 2002, the Defendant Fischer Bottle Gas entered into a Commercial Note pursuant to which it agreed to pay to the Plaintiff the sum of $16,438.25 in 59 consecutive installments of $340.43, and one final installment commencing 30 days from the date of shiprnent of equiprnent separately purchased by Defendant until paid in full. A copy of the Note and all the terms is attached hereto and made a part hereof as Exhibit "G". 38. The equiprnent referenced in the Note was shipped on October 12, 2002, making the first payment due 30 days thereafter. 39. The Defendant is presently in default on its payments on Note. 8 40. There is presently due and owing to the Plaintiff by the Defendant the amount of $12,770.85, plus accrued interest of $186.28, for a total unpaid balance on the Note of$12,957.13. COUNT VIII 41. Paragraphs 1-5 are hereby incorporated by reference as if set forth at length. 42. On or about September 10, 2002, the Defendant Fischer Bottle Gas entered into a Commercial Note pursuant to which it agreed to pay to the Plaintiff the sum of $15,583.25 in 59 consecutive installments of $322.73, and one final installrnent commencing 30 days from the date of shipment of equipment separately purchased by Defendant until paid in full. A copy of the Note and all the terms is attached hereto and made a part hereof as Exhibit "H". 43. The equipment referenced in the Note was shipped on October 13, 2002, making the first payment due 30 days thereafter. 44. The Defendant is presently in default on its payments on Note. 9 45. There is presently due and owing to the Plaintiff by the Defendant the amount of$12,102.19, plus accrued interest of $176.52, for a total unpaid balance on the Note of $12,278.71. COUNT IX 46. Paragraphs 1-5 are hereby incorporated by reference as if set forth at length. 47. In addition to the aforementioned Note obligations of the Defendant, Defendant also maintained an open account with the Plaintiff for the purpose of purchases on revolving open credit. 48. Defendant was required to pay the open account in full within 30 days of invoice 49. The current balance on the open account is $31,092.00, which is more than 30 days overdue. 50. Pursuant to the terms of all of the aforernentioned Notes, the Defendant is responsible for the payment of all costs and expenses, including reasonable attorneys 10 fees and disbursements, which may be incurred by Plaintiff in the collection of the Notes with the enforcement of the company's rights and remedies thereunder. 51. Plaintiff has made demand upon the Defendant for the full amount of the above Note obligations and open account balance, yet despite demand, the Defendant has failed to and/or refused to make payments as aforesaid. WHEREFORE, Plaintiff requests this Honorable Court to enter Judgment in favor of the Plaintiff and against the Defendants in the combined amount of $255,655.78 as of June 30, 2004, plus continuing interest at the contract rates on each of the aforementioned Notes, plus reasonable attorney's fees and costs of suit. COUNT X 52. Paragraphs 1-5, are hereby incorporated by reference. 53. Concurrent with the execution of the aforementioned Notes between Plaintiff and Defendant DDL (referenced in Count I and II), Defendants Teresa E. Fisher and Mark A. Fisher entered into Personal Guaranty Contracts with American Welding & Tank Group, a division of HARSCO Corporation, a copy of which is attached hereto and rnade a part hereof as Exhibit "r" and "J". 11 54. Pursuant to the Personal Guaranty Contracts, Defendants Teresa E. Fisher and Mark A. Fisher agreed that in the event of default on the part of Defendant DDL under its Notes, Defendants Teresa E. Fisher and Mark A. Fisher would guaranty the payments of all sums due and owing thereunder, including attorneys fees. 55. Defendants Teresa E. Fisher and Mark A. Fisher are in default under the Personal Guaranty Contracts. 56. Defendant DDL, as primary Obligor and Defendant Teresa E. Fisher and Mark A. Fisher, as Guarantors of the Personal Guaranty Contracts, are indebted to the Plaintiff in the amounts due and owing in Counts I and II , plus attorneys fees per the Note and Personal Guaranty Contracts, plus continuing interest and costs. WHEREFORE, the Plaintiff, American Welding & Tank Group, a division of HARSCO Corporation, pray this Honorable Court enter judgment against Defendant Teresa E. Fisher and in favor of the Plaintiff in the amounts due and owing in Counts I and II, plus continuing interest, reasonable legal fees, and costs of suit. COUNT XI 57. Paragraphs 1- 5, are hereby incorporated by reference. 12 58. Concurrent with the execution of the aforementioned Note between Plaintiff and Defendant Fischer Bottle Gas, Defendant Mark A. Fisher entered into Personal Guaranty Contracts with American Welding & Tank Group, a division of HARSCO Corporation, a copy of which is attached hereto and rnade a part hereof as Exhibit UK", liLli, "M", UN", 110", and uP"." 59. Pursuant to the Personal Guaranty Contracts, Defendant Mark A. Fisher agreed that in the event of default on the part of Defendant Fisher Bottle Gas, under its Note, Defendant Mark A. Fisher would guaranty the payments of all sums due and owing thereunder, including attorneys fees. 60. Defendant Mark A. Fisher in default under the Personal Guaranty Contracts. 61. Defendant Fisher Bottle Gas, as primary Obligor and Defendant Mark A. Fisher, as Guarantor of the Personal Guaranty Contracts, are indebted to the Plaintiff in the amounts due and owing in Counts III, N, V, VI, VII, and VIII , plus attorneys fees per the Note and Personal Guaranty Contracts, plus continuing interest and costs. WHEREFORE, the Plaintiff, American Welding & Tank Group, a division of HARSCO Corporation, pray this Honorable Court enter judgment against Defendant 13 Mark A. Fisher and in favor of the Plaintiff in the amounts due and owing in Counts III IV, V, VI, VII, and VIII, plus continuing interest, reasonable legal fees, and costs of suit. PURCELL, KRUG & HALLER BY ----- --- . Purcell, Jr. LD. 9955 1719 North Front Street Harrisburg, PA 17102 (717) 234-4178 14 VERIFICATION COMPANY NAME: AMERICAN WELDING & TANK, A DIVISION OF HARSCO CORPORATION I verify that the statements made in the foregoing Complaint are true and correct. I understand that false statements herein are made subject to the penalties of 18 PA C.S. ~ 4904 relating to unsworn falsification to authorities. Dated: 7/7-.7/pL{ By dLPX- ./ Title ~ ~(e:.lfb:,.:AttV~ -I Cfl....t~o\I!:.t. COMMERCIAL NOTE $103,692.58 May 2, 2003 . FOR VALUE RECEIVED, each of the undersigned, jointly and severally if more than one (hereinafter collectively referred to as "Borrower"), promises to pay to the order of HARSCO CORPORATION (the "Company"), at its offices at 4718 Old Gettysburg Rd., Ste 300, P. O. Box 8316, Camp Hill, PA 17001-8316, the principal amount of One Hundred Three Thousand Six Hundred Ninety-Two and 58/100 DOLLARS, in lawful money of the United States, plus interest, to be paid as follows: said principal plus interest shall be payable in 59 consecutive equal montWy installments of principal and interest, eacb in the amount of $2,135.92 commencing 30 days from date of shipment of Equipment and on the same day of the month each month thereafter, each of which installments shall be applied fIrst to the payment of accrued and unpaid interest and then to the payment of principal and a fmal installment in an amount which is necessary to pay in full all of the outstanding principal plus accrued and unpaid interest on this Note on the date of the fmal payment. Interest shall accrue at the rate of 8.67% per annum. Payments will be applied as aforesaid on the date received. ADDITIONAL TERMS OF THIS NOTE - Each of the following provisions shall apply to this Note, to any extension or modifIcation hereof and to the indebtedness evidenced hereby, except as otherwise expressly stated above or in a separate writing signed by Company and Borrower. INDEBTEDNESS - This Note evidences the indebtedness of Borrower in connection with the sale of Equipment sold by Company to Borrower. INTEREST - Interest shall be calculated on the basis of a 360-day year and shall be charged for the actual number of days elapsed. Accrued interest shall be payable montWy. Accrued interest shall also be payable when the entire principal balance of this Note becomes due and payable (whether by demand, stated maturity or acceleration) or, if earlier, when such principal balance is actually paid to Company. Interest shall accrue from the date shipment of Equipment is made by Company, provided, however, that to the extent this Note represents a replacement, substitution, renewal or refInancing of existing indebtedness, interest shall accrue from the date hereof. Interest shall accrue on the unpaid balance hereof at the rate provided for in this Note until the entire unpaid balance has been paid in full, notwithstanding the entry of any judgment against Borrower. PREPA YMENT - A prepayment of principal (including any principal repayment as a result of acceleration by Company of this Note) shall require immediate payment to Company of a prepayment fee equal to 1.5% of the principal amount being prepaid. Prepayments shall be applied to scheduled installments of principal in the inverse order of their maturity, shall be accompanied by payment of accrued interest on the principal amount being prepaid and, unless this Note has been accelerated by Company shall not be permitted in an amount less than the scheduled principal installment prior to fInal maturity ofthe outstanding principal balance. COLLATERAL - This Note and the indebtedness evidenced hereby shall be secured by any lien or security interest evidenced by a writing (whether now existing or hereafter executed) which contains a provision to the effect that such lien or security interest is intended to secure this Note or indebtedness evidenced hereby. KM EVENTS OF DEFAULT - Each of the following shall be an Event of Default hereunder: (a) the nonpayment when due of any amount payable under this Note or under any obligation or indebtedness to Company of Borrower or any person liable, either absolutely or contingently, for payment of any indebtedness evidenced hereby, including endorsers, guarantors and sureties (each such person is referred to as an "Obligor"); (b) if Borrower or any Obligor has failed to observe or perform any other existing or future agreement with Company of any nature whatsoever; (c) if any representation, warranty, certifIcate, fInancial statement or other information made or given by Borrower or any Obligor to Company is materially incorrect or misleading: (d) if Borrower or any Obligor shall become insolvent or make an assignment for the benefIt of creditors or if any petition shall be filed by or against Borrower or any Obligor under any bankruptcy or insolvency law; (e) the entry of any judgment against Borrower or any Obligor which remains unsatisfIed for 15 days or the issuance of any attachment. tax lien. levy or garnishment against any property of material value in which Borrower or any Obligor has an interest; (t) if any attachment, levy, garnishment or similar legal process is served upon Company as a result of any claim against Borrower or any Obligor or against any property of Borrower or any Obligor; (g) the dissolution, merger, consolidation or change in control (as control is defIned in Rule 12b-2 under the Security Exchange Act of 1934), of any Borrower which is a corporation or partnership, or the sale or transfer of any substantial portion of any of Borrower's assets, ot ifany agreement for such dissolution, merger, or consolidation, change in control, sale or transfer is entered into by Borrower, without the written consent of Company: (h) the death of any Borrower or Obligor who is a natural person; (i) if Company determines reasonably and in good faith that an event has occurred or a condition exists which has had, or is likely to have, a material adverse effect on the financial condition or creditworthiness of Borrower or any Obligor, or on the ability of Borrower or any Obligor to perform its obligation evidenced by this Note; U) if Borrower shall fail to remit promptly when due to the appropriate govemment agency or authorized depository, any amount collected or Ex\--.'~',\- l"~' witlilield from any employee of Borrower for payroll taxed, Social Security payments or similar payroll deductions; (k) if any Obligor shaIl attemr j terminate or disclaim such Obligor's liabili! .if the indebtedness evidenced by this Note; (I) if Company shall ,easonabIy and in good faith determine and nOb,/Borrower that any collateral for this Note or for the indebtedness evidenced hereby is insufficient as to quality or quantity; (m) if Borrower shall fail to pay when due any material indebtedness for borrowed money other than to Company; of (n) if Borrower shall be notified of the failure of Borrower or any Obligor to provide financial and other information promptly when reasonably requested by Company. COMPANY'S REMEDIES - Upon the occurrence of one or more Events of Default, unless Company elects otherwise, the entire unpaid balance of this Note and all accrued interest shall be immediately due and payable without notice to Borrower or any Obligor, and Company may, immediately or at any time thereafter, exercise any or all of its rights and remedies hereunder or under any agreement or otherwise under applicable law against Borrower, any Obligor and any collateral. Company may exercise its rights and remedies in any order and may, at its option, delay in or refrain from exercising some or all of its rights and remedies without prejudice thereto. If Borrower fails to make any payment when due hereunder, Borrower shall pay company a service charge of five percent (5%) of such delinquent amount plus interest thereon horn the due date thereof until paid at the rate set forth above. NOTICE TO BORROWER - Any notice required to be given by Company under the provisions of this Note shall be effective as to each Borrower and each Obligor when addressed to Borrower and deposited in the mail, postage prepaid, for delivery by first class mail at Borrower's mailing address as it appears on Company's records. PAYMENTS - All payments due under this Note are to be made in immediately available funds. If Company accepts payment in any other form, such payment shall not be deemed to have been made until the funds comprising such payment have actually been received by or made available to Company. PAYMENT OF COSTS -In addition to the principal and interest payable hereunder, Borrower agrees to pay Company, on demand, all costs and expenses (including reasonable attorney's fees and disbursements) which may be incurred by Company in the collection ofthis Note or the enforcement of Company's rights and remedied hereunder. REPRESENTATIONS BY BORROWER - If Borrower is a corporation or a general or limited partnership, Borrower represents and warrants that it is validly existing and in good standing in the jurisdiction under whose laws it was organized. If Borrower is a corporation, Borrower represents and warrants that the execution, delivery and performance of this Note are within Borrower's corporate powers, have been duly authorized by all necessary action by Borrower's Board of Directors, and are not in contravention of the terms of Borrower's charter, by-laws, or any resolution of its Board of Directors. If Borrower is a general or limited partnership, Borrower. represents and warrants that the execution, delivery and performance of this Note have been duly authorized and are not in conflict with any provision of Borrower's partnership agreement or certificate of limited partnership. Borrower further represents and warrants that this Note has been validly executed and is enforceable in accordance with its terms, that the execution, delivery and performance by Borrower of this Note are not in conlTavention of law and do not conflict with any indenture, agreement or undertaking to which Borrower is a party or is otherwise bound, and that no consent or approval of any governmental authority or any third party is required in connection with the execution, delivery and performance of this Note. W AJVER, ETC., - Borrower and each Obligor waive presentment, dishonor, notice of dishonor, protest and notice of protest. Neither the failure nor any delay on the part of Company to exercise any right, remedy, power or privilege hereunder shall operate as a waiver or modification thereof. No consent, waivet or modification of the terms of this Note shaIl be effective unless set forth in a writing signed by company. AIl rights and remedies of Company are cumulative and concurrent and no single or partial exercise of any power or privilege shaIl preclude any other or further exercise of any right, power or privilege. MISCELLANEOUS - This Note is the unconditional obligation of Borrower, and Borrower agrees that Company shaIl not be required to exercise any of its rights or remedies against any coIlateral in which it holds a lien or security interest or against which it has a right of setoff or against any particular Obligor. AIl representation, warranties and agreements herein are made jointly and severally by each Borrower. If any provision of this Note shaIl be held invalid or unenforceable, such invalidity of unenforceability shaIl not affect any other provision hereof. To the extent that this Note represents a replacement, substitution, renewal or refinancing of a pre-existing note or other evidence of indebtedness. the indebtedness represented by such pre-existing note or other instrument shall not be deemed to have been extinguished hereby. This Note has been delivered in and shaIl be governed by and construed in accordance with the laws of the Commonwealth of Pennsylvania without regard to the law conflicts. This Note shaIl be binding upon each Borrower and each Obligor and upon their personal representatives, heirs, successors and assigns, and shaIl benefit Company and its successors and assigns. K~ 2 ASSIGNMENT BY COMPANY - Company may assign or transfer, and Borrower hereby consents to the assignment or transfer, of Company's intere jl this Note without ,notice t? Borrower. B' )wer agrees that the liability of Borrower to any assignee of Lompany or any subsequent assignee of such assignee, shall be absolute and unconditional. CONSENT TO JURISDICTION AND VENUE - IN ANY LEGAL PROCEEDING INVOLVING, DIRECTLY OR INDIRECTLY, ANY MATTER ARISING OUT OF OR RELATED TO THIS NOTE OR THE RELATIONSHIP EVIDENCED HEREBY, EACH UNDERSIGNED PARTY HEREBY IRREVOCABLY SUBMITS TO THE NONEXCLUSIVE JURISDICTION OF ANY STATE OR FEDERAL COURT LOCATED IN ANY COUNTY OF THE COMMONWEALTH OF PENNSYLVANIA WHERE COMPANY MAINTAINS AN OFFICE AND AGREES NOT TO RAISE ANY OBJECTION TO SUCH JURISDICTION OR TO THE LAYING OR MAINTAINING OF THE VENUE OF ANY SUCH PROCEEDING IN SUCH COUNTY. EACH UNDERSIGNED PARTY AGREES THAT SERVICE OF PROCESS IN ANY SUCH PROCEEIlING MAY BE DULY EFFECTED UPON IT BY MAILING A COPY THEREOF, BY REGISTERED MAIL, POSTAGE PREPAID, TO EACH UNDERSIGNED PARTY. WAIVER OF JURY TRIAL - EACH UNDERSIGNED PARTY HEREBY WAIVES AND COMPANY BY ITS ACCEPTANCE HEREOF THEREBY WAIVES, TRIAL BY JURY IN ANY LEGAL PROCEEDI)I;G INVOLVING, DIRECTLY OR INDIRECTLY, ANY MATTER (WHETHER SOUNDING IN TORT, CONTRACT OR OTHERWISE) IN ANY WAY ARISING OUT OF OR RELATED TO THIS NOTE OR THE RELATIONSHIP EVIDENCED HEREBY. THIS PROVISION IS A MATERIAL INDUCEMENT FOR COMPANY TO ENTER INTO, ACCEPT OR REL Y UPON TIllS NOTE. IN WITNESS WHEREOF, Borrower, intending this to be a sealed instrument and intending to be legally bound hereby, has executed and delivered this Note as of the day and year ftrst above written. Corporation or Partnership: DDL, Inc. dba Fisher LP Gas ~~~,~ , Tere~-; i1iYs'her, President I r<-h 3 ., '. COMMERCIAL NOTE . $60,000.00 Augusl ]8, 2003 FOR VALUE RECEIVED, each of the undersigned, jointly aud severally if more than one (hereinafter collectively referred to as "Borrower"), promises to pay to the order ofHARSCO CORPORATION (the "Company"), at its offtces at 4718 Old Gettysburg Rd., Ste 300, P. O. Box 8316, Camp Hi1l, PA ]7001-8316, the principal amount of Sixty Thousand and NollOO DOLLARS, in lawful money of the United States, plus interest, to be paid as follows: said principal plus interest shall be payable in 59 consecutive equal monthly installments of principal and interest, each in the amount of $],235.9] commencing 30 days from date of shipment of Equipment and on the same day of the month each month thereafter, each of which installments sha1l be applied first to the payment of accrued and unpaid interest and then to the payment of principal and a final installment in an amount which is necessary to pay in full all of the outstanding principal plus accrued and unpaid interest on this Note on the date of the ftnal payment. Interest shall accme at the rate of 8.67% per annum. Payments will be applied as aforesaid on the date received. ADDITIONAL TERMS OF THIS NOTE - Each of the following provisions shall apply to this Note, to any extension or modification hereof and to the indebtedness evidenced hereby, except as otherwise expressly stated above or in a separate writing signed by Company and Borrower. INDEBTEDNESS - This Note evidences the indebtedness of Borrower in connection with the sale of Equipment sold by Company to Borrower. INTEREST - Interest shall be calculated on the basis of a 360-day year and shall be charged for the actual number of days elapsed. Accrued interest shall be payable monthly. Accmed interest shall also be payable when the entire principal balance of this Note becomes due and payable (whether by demand, stated maturity or acceleration) or, if earlier, when such principal balance is actually paid to Company. Interest shall accrue from the date shipmenl of Equipment is made by CompanJS..J'f'>vided, however. that to the extent this Note represents a replacement. ___ __ substitution, renewal or refinancing of existing indebtedness, interest shall accrue from the date hereof. Interest shall accme on the unpaid balance hereof at the rate provided for in this Note until the entire unpaid balance has been paid in full, notwithstanding the entry of any judgment against Borrower. PREPAYMENT - A prepayment of principal (including any principal repayment as a result of acceleration by Company of this Note) shall require immediate payment to Company of a prepayment fee equal to 1.5% of the principal amount being prepaid. Prepayments shall be applied to scheduled insta1lments of principal in the inverse order of their maturity, shall be accompanied by payment of accmed interest on the principal amount being prepaid and, unless this Note has been accelerated by Company shall not be perrnitted in an amount less than the scheduled principal installment prior to final maturity of the outstanding principal balance. COLLATERAL - This Note and the indebtedness evidenced hereby shall be secured by any lien or security interest evidenced by a writing (whether now existing or hereafter executed) which contains a provision to the effect that such lien or security interest is intended to secure this Note or indebtedness evidenced hereby. ~~ EVENTS OF DEFAULT - Each of the following shall be an Event of Default hereunder: (a) the nonpayment when due of any amount payable under this Note or under any obligation or indebtedness to Company of Borrower or any person liable, either absolutely or contingently, for payment of any indebtedness evidenced hereby, including endorsers, guarantors and sureties (each such person is referred to as an "Obligor"); (b) if Borrower or any Obligor has failed to observe or perforrn any other exisling or future agreement with Company of any nature whatsoever; (c) if any representation, warranty, certificate, financial statement or other information made or given by Borrower or any Obligor to Company is materially incorrect or misleading; (d) if Borrower or any Obligor shall become insolvent or make an assignment for the benefit of creditors or if any petition shall be filed by or against Borrower or any Obligor under any bankruptcy or insolvency law; (e) the entry of any judgment against Borrower or any Obligor which remains unsatisfied for 15 days or the issuance of any attachment, tax lien, levy or garnishment against any property of material value in which Borrower or any Obligor has an interest; (1) if any attachment, levy. garnishment or similar legal process is served upon Company as a result of any claim against Borrower or any Obligor or against any property of Borrower or any Obligor; (g) the dissolution, merger, consolidation or change in control (as control is defined in Rule 12b-2 under the Security Exchange Act of 1934), of any Borrower which is a corporation or partnership, or the sale or transfer of any substantial portion of any of Borrower's assets, or if any agreement for such dissolution, merger, or consolidation, change in control, sale or transfer is entered into by Borrower, without the written consent of Company; (h) the death of any Borrower or Obligor who is a natural person; (i) if Company deterrnines reasonably and in good faith that an event has occurred or a condition exists which has had, or is likely to have, a material adverse effect on the financial condition or creditworthiness of Borrower or any Obligor, or on the ability of Borrower or any Obligor to perforrn its obligation evidenced by this Note; (j) if Borrower shall fail to remit promptly when due to the appropriate government agency or authorized \ " t?!' E~\l'-"i:)'\ \.....) depository, any amount collecte' 'withheld from any employee of Borrower C payroll taxed, Social Security payments or similar payroll deo_ .Ions; (k) if any ObNgor shaH attempt to tern. .Ite or disclaim such Obligor's liability for the indebtedness evidenced by this Note; (I) if Company shall reasonably and in good faith determine and notifY Borrower that any collateral for this Note or for the indebtedness evidenced hereby is insufficient as to quality or quantity; (m) if Borrower shall fail to pay when due any material indebtedness for borrowed money other than to Company; of (n) if Borrower shall be notified of the failure of Borrower or any Obligor to provide ftnancial and other information promptly when reasonably requested by Company. COMPANY'S REMEDIES - Upon the occurrence of one or more Events of Default, unless Company elects otherwise, the entire unpaid balance of this Note and all accmed interest shall be immediately due and payable without notice to Borrower or any Obligor, and Company may, immediately or at any time thereafter, exercise any or all of its rights and remedies hereunder or under any agreement or otherwise under applicable law against Borrower, any Obligor and any collateral. Company may exercise its rights and remedies in any order and may, at its option, delay in or refrain from exercising some or all of its rights and remedies withoul prejudice thereto. If Borrower fails to make any payment when due hereunder, Borrower shall pay company a service charge of ftve percent (5%) of such delinquent amount plus interest thereon from the due date thereof until paid at the rate set forth above. NOTICE TO BORROWER - Any notice required to be given by Company under the provisions of this Note shall be effective as to each Borrower and each Obligor when addressed to Borrower and deposited in the mail, postage prepaid, for delivery by first class mail at Borrower's mailing address as it appears on Company's records. PAYMENTS - All payments due under this Note are to be made in immediately available funds. If Company accepts payment in any other form, such payment shall not be deemed to have been made until the funds comprising such payment have actually been received by or made available to Company. PAYMENT OF COSTS - In addition to the principal and interest payable hereunder, Borrower agrees to pay Company, on demand, all costs and expenses (including reasonable attorney's fees and disbursements) which may be incurred by Company in the collection of this Note or the enforcement of Company's rights and remedied hereunder. REPRESENTATIONS BY BORROWER - If Borrower is a corporation or a general or limited partnership, Borrower represents and warrants that it is validly existing and in good standing in the jurisdiction under whose Jaws it was organized. If Borrower is a corporation. Borrower represents and warrants that the execution, delivery and perfonnance of this Note are within Borrower's corporate powers, have been duly authorized by an necessary action by Borrower's Board of Directors, and are not in contravention of the tenns of Borrower's charter, by-laws. or any resolution of its Board of Directors. If Borrower is a general or limited partnership, Borrower represents and warrants that the execution, delivery and performance of this Note have been duly authorized and are not in conflict with any provision of Borrower's partnership agreement or certificate of limited partnership. Borrower further represents and warrants that this Note has been validly executed and is enforceable in accordance with its terms, that the execution, delivery and performance by Borrower of this Note are not in contravention of law and do not conflict with any indenture, agreement or undertaking to which Borrower is a party or is otherwise bound, and that no consent or approval of any governmental authority or any third party is required in connection with the execution, delivery and performance of this Note. WAIVER, ETC.,. Borrower and each Obligor waive presentment, dishonor, notice of dishonor, protest and notice of protest. Neither the failure nor any delay on the part of Company to exercise any right. remedy, power or privilege hereunder shall operate as a waiver or modification thereof No consent, waiver or modification of the terms of this Note shall be effective unless set forth in a writing signed by company. All rights and remedies of Company are cumulative and concurrent and no single or partial exercise of any power or privilege shall preclude any other or further exercise of any right, power or privilege. MISCELLANEOUS - This Note is the unconditional obligation of Borrower, and Borrower agrees that Company shall not be required to exercise any of its rights or remedies against any collateral in which it holds a lien or security interest or against which it has a right of setoff or against any particular Obligor. All representation, warranties and agreements herein are made jointly and severally by each Borrower. If any provision of this Note shall be held invalid or unenforceable, such invalidity of unenforceability shall not affect any other provision hereof. To the extent that this Note represents a replacement, substitution, renewal or refmancing of a pre-existing note or other evidence of indebtedness, the indebtedness represented by such pre-existing note or other instrument shall not be deemed to have been extinguished hereby. This Note has been delivered in and shall be governed by and construed in accordance with the laws of the Commonwealth of Pennsylvania witbout regard to the law conflicts. This Note shall be binding upon each Borrower and each Obligor and upon their personal representatives, heirs, successors and assigns, and shall benefit Company and its successors and assigns. ~~\ 2 " ~~ ASSIGNMENT BY COMPANY. C" 3ny may assign or transfer, and Borrower her' . consents to the assignment or transfer, of Company's interest _ Ithis Note without n'Otice to' Borrower. Bor.. ler agrees that the liability of Borrower to any assignee of Company or any subsequent assignee of such assignee, shall be absolute and unconditional. CONSENT TO JURISDICTION AND VENUE -IN ANY LEGAL PROCEEDING INVOLVING, DIRECTLY OR INDIRECTLY. ANY MATTER ARISING OUT OF OR RELATED TO THIS NOTE OR THE RELATIONSHIP EVIDENCED HEREBY, EACH UNDERSIGNED PARTY HEREBY IRREVOCABLY SUBMITS TO THE NONEXCLUSIVE JURISDICTION OF ANY STATE OR FEDERAL COURT LOCATED IN ANY COUNTY OF THE COMMONWEALTH OF PENNSYLVANIA WHERE COMPANY MAINTAINS AN OFFICE AND AGREES NOT TO RAISE ANY OBJECTION TO SUCH JURISDICTION OR TO THE LAYING OR MAINTAINING OF THE VENUE OF ANY SUCH PROCEEDING IN SUCH COUNTY. EACH UNDERSIGNED PARTY AGREES THAT SERVICE OF PROCESS IN ANY SUCH PROCEEDING MAY BE DULY EFFECTED UPON IT BY MAILING A COPY THEREOF. BY REGISTERED MAIL, POSTAGE PREPAID, TO EACH UNDERSIGNED PARTY. WAIVER OF JURY TRIAL. EACH UNDERSIGNED PARTY HEREBY WAIVES AND COMPANY BY ITS ACCEPTANCE HEREOF THEREBY WAIVES, TRIAL BY JURY IN ANY LEGAL PROCEEDING INVOLVING, DIRECTLY OR INDIRECTLY, ANY MATTER (WHETHER SOUNDING IN TORT, CONTRACT OR OTHERWISE) IN ANY WAY ARISING OUT OF OR RELATED TO THIS NOTE OR THE RELATIONSHIP EVIDENCED HEREBY. THIS PROVISION IS A MATERIAL INDUCEMENT FOR COMPANY TO ENTER INTO, ACCEPT OR RELY UPON THIS NOTE. IN WITNESS WHEREOF, Borrower, intending this to be a sealed instrument and intending to be legally bound hereby, has executed and delivered this Note as of the day and year first above written. Corporation or Partnership: DDL. Inc. dba Fisher LP Gas ~c~ Teresa E. Fisher, President 3 COMMERCIAL NOTE .' '$20,245.4 ] iugust 28, 2002 FOR VALUE RECElVED, each of the undersigned, jointly and severally if more than one (hereinafter collectively referred to as "Borrower"), promises to pay to the order ofHARSCO CORPORATION (the "Company"). at its offtces at 47l 8 Old Gettysburg Rd., Ste 300, P. O. Box 8316, Camp Hill, P A 17001-83 1 6, the principal amount of Twenty Thousand Two Hundred Forty-five and .41 DOLLARS, in lawful money of the United States, plus interest, to be paid as follows: said principal plus interest shall be payable in 59 consecutive equal monthly installments of principal and interest, each in the amount of$419.28 commencing 30 days from date of shipment of Equipment and on tlle same day of the month each month thereafter, each of which installments shall be applied first to the payment of accrued and unpaid interest and then to the payment of principal and a final installment in an amount which is necessary to pay in full all oftlle outstanding principal plus accrued and unpaid interest on this Note on the date of the ftnal payment. Interest shall accrue at the rate of 8.90% per annum. Payments will be applied as aforesaid on the date received. ADDITIONAL TERMS OF THIS NOTE - Each of the following provisions shall apply to this Note, to any extension or modiftcation hereof and to the indebtedness evidenced hereby, except as otherwise expressly stated above or in a separate writing signed by Company and Borrower. INDEBTEDNESS - This Note evidences the indebtedness of Borrower in connection with the sale of Equipment sold by Company to Borrower. INTEREST~Interest shaU be calculated on the basis ofa 360-day year and shall be charged for the actual number of days elapsed. Accrued interest shall be payable monthly. Accrued interest SllaIftlso be payable when the entire principal balance of this Note becomes due and payable (whether by demand, stated maturity or acceleration) or, if earlier, when such principal balance is actually paid to Company. Interest shall accrue from the date shipment of Equipment is made by Company, provided, however, that to the extent this Note represents a replacement, substitution, renewal or reftnancing of existing indebtedness, interest shall accrue from the date hereof. Interest shall accme on the unpaid balance hereof at the rate provided for in this Note until the entire unpaid balance has been paid in full, notwithstanding the entry of any judgment against Borrower. PREPAYMENT - A prepayment of principal (including any principal repayment as a result of acceleration by Company of this Note) shall require immediate payment to Company of a prepayment fee equal to 1.5% of the principal amount being prepaid. Prepayments shall be applied to scheduled installments of principal in the inverse order of their maturity, shall be accompanied by payment of accrued interest on the principal amount being prepaid and, unless this Note has been accelerated by Company shall not be pennitted in an amount less than the scheduled principal installment prior to final maturity of the outstanding principal balance. COLLATERAL - This Note and the indebtedness evidenced hereby shall be secured by any lien or security interest evidenced by a writing (whether now existing or hereafter executed) which contains a provision to the effect that such lien or security interest is intended to secure this Note or indebtedness evidenced hereby. EVENTS OF DEFAULT - Each of the following shall be an Event of Default hereunder: (a) the nonpayment when due of any amount payable under this Note or under any obligation or indebtedness to Company of Borrower or any person liable, either absolutely or contingently, for payment of any indebtedness evidenced hereby, including endorsers, guarantors and sureties (each such person is referred to as an "Obligor"); (b) if Borrower or any Obligor has failed to observe or perform any other existing or future agreement with Company of any nature whatsoever; (c) if any representation, warranty, certiftcate, financial statement or other information made or given by Borrower or any Obligor to Company is materially incorrect or misleading; (d) if Borrower or any Obligor shall become insolvent or make an assignment for the benefit of creditors or if any petition shall be filed by or against Borrower or any Obligor under any bankruptcy or insolvency law; (e) the entry of any judgment against Borrower or any Obligor which remains unsatisfied for 15 days or the issuance of any attachment, tax lien, levy or garnishment against any property of material value in which Borrower or any Obligor has an interest; (I) if any attachment, levy, garnishment or similar legal process is served upon Company as a result of any claim against Borrower or any Obligor or against any property of Borrower or any Obligor; (g) the dissolution, merger, consolidation or change in control (as control is defined in Rule 12b-2 under the Security Exchange Act of 1934), of any Borrower which is a corporation or partnership, or the sale or transfer of any substantial portion of any of Borrower's assets, or if any agreement for such dissolution, merger, or consolidation, change in control, sale or transfer is entered into by Borrower, without the written consent of Company; (h) the death of any Borrower or Obligor who is a natural person; (i) if Company detennines reasonably and in good faith that an event has occurred or a condition exists which has had, or is likely to have, a material adverse effect on the fmancial condition or creditworthiness of Borrower or any Obligor, or on the ahility of Borrower or any Obligor to perform its obligation evidenced by this Note; (j) if Borrower shall fail to remit promptly when due to the appropriate government agency or authorized depository, any amount collected or E')L'D\"\J',\ "C/ withheld from any employee ofP~'"To\\'er IDr payroll taxed, Social Security paymep"'or similar payroll deductions; '(k) if a~y Obliger shall attempt, IminaIe or disclaim stich Obligor's liability fOI jndebtedness evidenced by this Note; (I) if Company shall reasonably and in good faith determine and notify Borrower that any collateral for this Note or for the indebtedness evidencN hereby is insufftcient as to quality or quantity; (m) if Borrower shall fail to pay when due any material indebtedne;s tor borrowed money other than to Company; of(n) if Borrower shall be notified of the failure of Borrower or any Obligor to provide financial and other information promptly when reasonably requested by Company. COMPANY'S REMEDIES - Upon the OCCU'Tence of one or more Events of Default, unless Company elects otherwise, the entire unpaid balance of this Note and:!'!1 accrued interest shall be immediately due and payable without notice to Borrower or any Obligor, and Company IIlJ)", inmlediately or at any time thereafter, exercise any or all of its rights and remedies hereunder or under any agr""ment or otherwise under applicable law against Borrower, any Obligor and any collateral. Company may exercise iIS rights and remedies in any order and may, at its option, delay in or refrain from exercising some or all of its nghts and remedies without prejudice thereto. If Borrower fails to make any payment when due hereunder, Borrower shall pay company a service charge of five percent (5%) of such delinquent amount plus interest thereon from the due date thereof until paid at the rate set forth above. NOTICE TO BORROWER - Any notice required to be given by Company under the provisions of this Note shall be effeclive as to each Borrower and each Obligor when addressed to Borrower and deposited in the mail, postage prepaid, for delivery by ftrst class mail aI Borrower's mailing address as it appears on Company's records. PAYMENTS - All payments due under this \"ote are to be made in immediately available funds. If Company accepts paymenrltf1lny other form, such payment shall not be deemed to have been made until the funds comprising such payment have actually been received by or made available to Company. ~ PAYMENT OF COSTS - In addition to the principal and interest payable hereunder, Borrower agrees to pay Company, on demand, all costs and expenses (including reasonable attorney's fees and disbursements) which may be incurred by Company in the collection of this Note or the enforcement of Company's rights and remedied hereunder. REPRESENTATIONS BY BORROWER - If Borrower is a corporation or a general or limited partnership, Borrower represents and warrants that it is validly exi5ring and in good standing in the jurisdiction under whose laws it was organized. If Borrower is a corporation. Borrower represents and warrants that the execution, delivery and performance of this Note are within Borrower's corporate powers, have been duly authorized by all necessary action by Borrower's Board of Directors, and are not in contravention of the terms of Borrower's charter, by-laws, or any resolution of its Board of Directors. IfBo:Tower is a general or limited partnership, Borrower represents and warrants that the execution, delivery and performance of this Note have been duly authorized and are not in conflict with any provision of Borrower's partnership agreement or certiftcate of limited partnership. Borrower further represents and warrants that this Note has been validly executed and is enforceable in accordance with its terms, that the execution, delivery and performance by Borrower of this Note are not in contravention oflaw and do not conflict with any indenture, agreement or undertaking to which Borrower is a party or is otherwise bound, and that no consent or approval of any governmental authority or any third party is required in connection with the execution, delivery and performance of this Note. WAIVER, ETC., - Borrower and each Obligor waive presentment, dishonor, notice of dishonor, protest and notice of protest. Neither the failure nor any deJay OD the part of Company to exercise any right, remedy, power or privilege hereunder shall operate as a waiver or modification thereof. No consent, waiver or modification of the terms of this Note shall be effective unless set forth in a "riling signed by company. All rights and remedies of Company are cumulative and concurrent and no single 0' partial exercise of any power or privilege shall preclude any other or further exercise of any right, power or pri\ilege. MISCELLANEOUS - This Note is the uncondirional obligation of Borrower, and Borrower agrees that Company shall not be required to exercise any of its rights or remedies against any collateral in which it holds a lien or security interest or against which it has a right of motT or against any particular Obligor. All representation, warranties and agreements herein are made jointly and so\'orally by each Borrower. If any provision of this Note shall be held invalid or unenforceable, such invalidity oiWlenforceability shall not affect any other provision hereof. To the extent that this Note represents a replacem:nt, substitution, renewal or refinancing of a pre-existing note or other evidence of indebtedness, the indebtedne;; represented by such pre-existing note or other instrument shan not be deemed to have been extinguished hereby, This Note has been delivered in and shall be governed by and construed in accordance with the laws of the COf1llOOnwealth of Pennsylvania without regard to the law conflicts. This Note shall be binding upon each Borrower and each Obligor and upon their personal representatives, heirs, successors and assigns, and shall beneftt Company and it; successors and assigns. ASSIGNMENT BY COMPANY - Company nuy assign or transfer, and Borrower hereby consents to the assignment or transfer, of Company's interest in this !\ore without notice to Borrower. Borrower agrees that the liability of Borrower to any assigneeofCorv-ony or any subsequent assignee of such assignee "hall be absolute and ~nconditional. . ) " CONSENT TO JURISDICTION AND VENUE -IN ANY LEGAL PROCEEDING INVOLVING, DIRECTLY OR INDIRECTLY, ANY MATTER ARISING OUT OF OR RELATED TO THIS NOTE OR THE RELATIONSHIP EVIDENCED HEREBY, EACH UNDERSIGNED PARTY HEREBY IRREVOCABLY SUBMITS TO THE NONEXCLUSIVE JURISDICTION OF ANY STATE OR FEDERAL COURT LOCATED IN ANY COUNTY OF THE COMMONWEALTH OF PENNSYLVANIA WHERE COMPANY MAINTAINS AN OFFICE AND AGREES NOT TO RAISE ANY OBJECTION TO SUCH JURISDICTION OR TO THE LAYING OR MAINTAINING OF THE VENUE OF ANY SUCH PROCEEDING IN SUCH COUNTY. EACH UNDERSIGNED PARTY AGREES THAT SERVICE OF PROCESS IN ANY SUCH PROCEEDING MAY BE DULY EFFECTED UPON IT BY MAILING A COpy THEREOF, BY REGISTERED MAIL, POSTAGE PREPAID, TO EACH UNDERSIGNED PARTY. WAIVER OF JURY TRIAL - EACH UNDERSIGNED PARTY HEREBY WAIVES AND COMPANY BY ITS ACCEPTANCE HEREOF THEREBY WAIVES, TRIAL BY JURY IN ANY LEGAL PROCEEDING INVOLVING, DlRECTL Y OR INDIRECTLY, ANY MAlTER (WHETHER SOUNDING IN TORT, CONTRACT OR OTHERWISE) IN ANY WAY ARISING OUT OF OR RELATED TO THIS NOTE OR THE RELATIONSHIP EVIDENCED HEREBY. THIS PROVISION IS A MATERIAL INDUCEMENT FOR COMPANY TO ENTER INTO, ACCEPT OR RELY UPON THIS NOTE. IN WITNESS WHEREOF, Borrower, intending this to be a sealed instrument and intending to be legally bound hereby, has executed and delivered this Note as of the day and year first above written, !=orporation or Partnership: f7~k ~ AJ Fischer Bottle Gas By: 111~ h~W pt/V-L f\--, h~ckv (Print name and title) By:J!!~ti?-<~ fJr-scl. Marl;; Fischer, President Individuals: ~];, II ,J~ J f) ,}; fJ. Sote EK. (Print name of Witness) 'Hn~~l~~~ t1,/c.Jf-k e- V~LIT (Print name of Witness) Borrower x /ltLa ~ j?1/k2-t.. ;4. hsd"W?/ (Print name of Borrower) x (print name of Borrower) COMMERCIAL NOTE ., ..' $16,962.53 ~ugust 28, 2002 FOR VALUE RECEIVED, each of the undersigned, jointly and severally if more than one (hereinafter collectively referred to as "Borrower"), promises to pay to the order ofHARSCO CORPORATION (the "Company"), at its offtces at 4718 Old Gettysburg Rd., Ste 300, P. O. Box 8316, Camp Hill, PA 17001-8316, the principal amount of Sixteen Thousand Nine Hundred Sixty-two and .53/100 DOLLARS, in lawful money of the United States, plus interest, to be paid as follows: said principal plus interest shall be payable in 59 consecutive equal monthly installments of principal and interest, each in the amonnt of$351.29 commencing 30 days from date of shipment of Equipment and on the same day of the month each month thereafter, each of which installments shall be applied fIrst to the payment of accrued and unpaid interest and then to the payment of principal and a final installment in an amount which is necessary to pay in full all of the outstanding principal plus accmed and unpaid interest on this Note on the date of the fInal payment. Interest shall accrue at the rate of8,90% per. annum. Payments will be applied as aforesaid on the date received. ADDITIONAL TERMS OF THIS NOTE - Each ofthe following provisions shall apply to this Note, to any extension or modiftcation hereof and to the indebtedness evidenced hereby, except as otherwise expressly stated above or in a separate writing signed by Company and Borrower. iNDEBTEDNESS - This Note evidences the indebtedness of Bon-ower in connection with the sale of Equipment sold by Company to Borrower. INTERESt =1ntere~t shall be calculated on the basis of a 360-day year and s~lll~':; charged for the actual number of days elapsed. Accrued interest shall be payable montllly. Accrued mterest s a a so be payable when the enlIre principal balance of this Note becomes due and payable (whether by demand, stated maturity or acceleration) or, if earlier, when such principal balance is actually paid to Company. Interest shall accrue from the date shipment of Equipment is made by Company, provided, however, that to the extent this Note represents a replacement, substitution, renewal or reftnancing of existing indebtedness, interest shall accrue from the date hereof. Interest shall accrue on the unpaid balance hereof at the rate provided for in this Note until the entire unpaid balance has been paid in full, notwithstanding the entry of any judgment against Bon-ower. PREPA YMENT - A prepayment of principal (including any principal repayment as a result of acceleration by Company of this Note) shall require immediate payment to Company ofa prepayment fee equal to 1.5% of the principal amount being prepaid. Prepayments shall be applied to scheduled installments of principal in the inverse order of their maturity, shall be accompanied by payment of accrued interest on the principal amount being prepaid and, unless this Note has been accelerated by Company shall not be pennitted in an amount less than the scheduled principal installment prior to ftnal maturity of the outstanding principal balance. COLLATERAL - This Note and the indebtedness evidenced hereby shall be secured by any lien or security interest evidenced by a writing (whether now existing or hereafter executed) which contains a provision to the effect that such lien or security interest is intended to secure this Note or indebtedness evidenced hereby. EVENTS OF DEFAULT - Each of the following shall be an Event of Default hereunder: (a) the nonpayment when due of any amount payable under this Note or under any obligation or indebtedness to Company of Borrower or any person liable, either absolutely or contingently, for payment of any indebtedness evidenced hereby, including endorsers, guarantors and sureties (each such person is referred to as an "Obligor"); (b) if Borrower or any Obligor has failed to observe or perform any other existing or future agreement with Company of any nature whatsoever; (c) if any representation, warranty, certificate, financial statement or other information made or given by Borrower or any Obligor to Company is materially incorrect or misleading; (d) if Borrower or any Obligor shall become insolvent or make an assignment for the benefIt of creditors or if any petition shall be med by or against Borrower or any Obligor under any bankruptcy or insolvency law; (e) the entry of any judgment against Borrower or any Obligor which remains unsatisfIed for 15 days or the issuance of any attachment, tax lien, levy or garnishment against any property of material value in which Borrower or any Obligor has an interest; (I) if any attachment, levy, garnishment or similar legal process is served upon Company as a result of any claim against Borrower or any Obligor or against any property of Borrower or any Obligor; (g) the dissolution, merger, consolidation or change in control (as control is defined in Rule 12b-2 under the Security Exchange Act of 1934), of any Borrower which is a corporation or partnership, or the sale or transfer of any substantial portion of any of Borrower's assets, or ifany agreement for such dissolution, merger, or consolidation, change in control, sale or transfer is entered into by Borrower, without the written consent of Company; (h) the death of any Borrower or Obligor who is a natural person; (i) if Company detennines reasonably and in good faith that an event has occurred or a condition exists which has had, or is likely to have, a material adverse effect on the financial condition or creditworthiness of Borrower or any Obligor, or on the ability of Borrower or any Obligor to perform its obligation evidenced by this Note; U) if Borrower shall fail to remit promptly when due to the appropriate government agency or authorized depository, any amount collected or E"')'.\-.-'\1~ "~" " .withheld from any employee ofP' 'Tower for payroll taxe~, Socia! Security paymenl<~" similar payroll deductions; " .' (k) if any Obligor shall attempt I. Aminate or disclaim such Obligor's liability foe ,I indebtedness evidenced by this Note; (I) if Company shall reasonably and in good faith detennine and notify Borrower that any collateral for . this Note or for the indebtedness evidenced hereby is insufftcient as to quality or quantity; (m) if Borrower shall fail to pay when due any material indebtedness for borrowed money other than to Company; of (n) if Borrower shall be notifted of the failure of Borrower or any Obligor to provide ftnancial and other information promptly when reasonably requested by Company, COMPANY'S REMEDIES - Upon the occurrence of one or more Events of Default, unless Company elects otherwise, the entire unpaid balance of this Note and all accmed interest shall be immediately due and payable without notice to Borrower or any Obligor, and Company may, inmJediately or at any time thereafter, exercise any or all of its rights and remedies hereunder or under any agreement or otherwise under applicable law against Borrower, any Obligor and any collateral. Company may exercise its rights and remedies in any order and may, at its option, delay in or refrain from exercising some or all of its rights and remedies without prejudice thereto. If Borrower fails to make any payment when due hereunder, Borrower shall pay company a service charge of ftve percent (5%) of such delinquent amount plus interest thereon from the due date thereof until paid at the rate set forth above. NOTICE TO BORROWER - Any notice required to be given by Company under the provisions of this Note shall be effective as to each Borrower and each Obligor when addressed to Borrower and deposited in the mail, postage prepaid, for delivery by ftrst class mail at Borrower's mailing address as it appears on Company's records. PAYMENTS - All payments due under this Note are to be made in immediately available funds. If Company accepts payment 'iiillny other fohn, such payment shall not be deemed to have been made until the funds comprising such payment have actually been received by or made available to Company. --:----'"" PAYMENT OF COSTS - In addition to the principal and interest payable hereunder, Borrower agrees to pay Company, on demand, all costs and expenses (including reasonable attorney's fees and disbursements) which may be incurred by Company in the collection of this Note or the enforcement of Company's rights and remedied hereunder. REPRESENT A nONS BY BORROWER - If Borrower is a corporation or a general or limited partnership, Borrower represents and warrants that it is validly existing and in good standing in the jurisdiction under whose laws it was organized. If Borrower is a corporation, Borrower represents and warrants that the execution, delivery and performance of this Note are within Borrower's corporate powers, have been duly authorized by all necessary action by Borrower's Board of Directors, and are not in contravention of the terms of Borrower's charter, by-laws, or any resolution of its Board of Directors. If Borrower is a general or limited partnership, Borrower represents and warrants that the execution, delivery and performance of this Note have been duly authorized and are not in conflict with any provision of Borrower's partnership agreement or certificate of limited partnership. Borrower further represents and warrants that this Note has been validly executed and is enforceable in accordance with its teims, that the execution, delivery and performance by Borrower of this Note are not in contravention oflaw and do not conflict with any indenture, agreement or undertaking to which Borrower is a party or is otherwise bound, and that no consent or approval of any governmental authority or any third party is required in connection with the execution, delivery and performance of this Note. WAIVER, ETC., - Borrower and each Obligor waive presentment, dishonor, notice of dishonor, protest and notice of protest. Neither the failure nor any delay on the part of Company to exercise any right, remedy, power or privilege hereunder shall operate as a waiver or modification thereof. No consent, waiver or modification of the terms of this Note shall be effective unless set forth in a writing signed by company. All rights and remedies of Company are cumulative and concurrent and no single or partial exercise of any power or privilege shall preclude any other or further exercise of any right, power or privilege. MISCELLANEOUS - This Note is the unconditional obligation of Borrower, and Borrower agrees that Company shall not be required to exercise any of its rights or remedies against any collateral in which it holds a lien or security interest or against which it has a right of setoff or against any particular Obligor. All representation, warranties and agreements herein are made jointly and severally by each Borrower. lf any provision of this Note shall be held invalid or unenforceable, such invalidity of un enforceability shall not affect any other provision hereof. To the extent that this Note represents a replacement, substitution, renewal or refinancing of a pre..:existing note or other evidence of indebtedness, the indebtedness represented by such pre-existing note or other instrument shall not be deemed to have been extinguished hereby. This Note has been delivered in and shall be governed by and construed in accordance with the laws of the Commonwealth of Pennsylvania without regard to the law conflicts. This Note shall be binding upon each Borrower and each Obligor and upon their personal representatives, heirs, successors and assigns, and shall beneftt Company and its successors and assigns. ASSIGNMENT BY COMPANY - Company may assign or transfer, and Borrower hereby consents to the assignment or transfer, of Company's interest in this Note without notice to Borrower. Borrower agrees that the liability of Borrower 10 any assignee of CO/l1-'~y or any subsequent assignee of such aSSIgnee, <hall be absolute and " '~ncondjtional. ' , 'CONSENT TO JURISDICTION AND VENlIE -IN ANY LEGAL PROCEEDING INVOLVING, DIRECTLY OR INDIRECTLY, ANY MATTER ARISING OUT OF OR RELATED TO THIS NOTE OR THE RELATIONSHIP EVIDENCED HEREBY, EACH UNDERSIGNED PARTY HEREBY IRREVOCABLY SUBMITS TO THE NONEXCLUSIVE JURISDICTION OF ANY STATE OR FEDERAL COURT LOCATED IN ANY COUNTY OF THE COMMONWEALTH OF PENNSYLVANIA WHERE COMPANY MAINTAINS AN OFFICE AND AGREES NOT TO RAISE ANY OBJECTION TO SUCH JURISDICTION OR TO THE LAYING OR MAINTAINING OF THE VENUE OF ANY SlICH PROCEEDING IN SUCH COUNTY. EACH UNDERSIGNED PARTY AGREES THAT SERVICE OF PROCESS IN ANY SUCH PROCEEDING MAY BE DULY EFFECTED UPON IT BY MAILING A COpy THEREOF, BY REGISTERED MAIL, POSTAGE PREPAID, TO EACH UNDERSIGNED PARTY. WAIVER OF JURY TRIAL - EACH UNDERSIGNED PARTY HEREBY WAIVES AND COMPANY BY ITS ACCEPTANCE HEREOF THEREBY WAIVES, TRIAL BY JURY IN ANY LEGAL PROCEEDING INVOLVING, DIRECTLY OR INDIRECTLY, ANY MATTER (WHETHER SOUNDING IN TORT, CONTRACT OR OTHERWISE) IN ANY WAY ARISING OllT OF OR RELATED TO THIS NOTE OR THE RELATIONSHIP EVIDENCED HEREBY. THIS PROVISION IS A MATERIAL INDUCEMENT FOR COMPANY TO ENTER INTO, ACCEPT OR RELY UPON THIS NOTE, IN WITNESS WHEREOF, Borrower, intending this to be a sealed instrument and intending to be legally bound hereby, has executed and delivered this Note as ofthe day and year ftrst above written. ~orporation or Partnership: Fischer Bottle Gas By: rn~t. 'A. (UGh-er By:JJ/~;)A- ~fut name and title) Mark Fischer, President Individuals: Witness ,X-"~~ A.~~ LD ( 5 A . ':) (J ,2 E. K (Print name of Witness) ~~l~1Ua^~ rJ. I C:. [+LJ.....J..... L- Ve iC-e e;,T"" (Print name of Witness) Borrower x mrL t1J<-- /l1 f}r2- K... Pr R~vh..if (Print name of Borrower) x (Print name of Borrower) COMMERCIAL NOTE . .$]~,332,31 Jugust 28, 2002 FOR VALUE RECEIVED, each of the undersigned, jointly and severally if more than one (hereinafter collectively referred to as "Borrower"), promises to pay to tile order ofHARSCO CORPORATION (the "Company"), at its offices at 4718 Old Gettysburg Rd., Ste 300, P. O. Box 8316, Camp Hill, P A 17001-8316, the principal amount of Fourteen Thousand Three Hundred Thirty-two and .31/100 DOLLARS, in lawful money of the United States, plus interest, to be paid as follows: said principal plus interest shall be payable in 59 consecutive equal monthly installments of principal and interest, each in the amount of $296.82 commencing 30 days from date of shipment of Equipment and on tbe same day of the month each month thereafter, each of which installments shall be applied first to the payment of accrued and unpaid interest and then to the payment of principal and a final installment in an amount which is necessary to pay in full all of the outstanding principal plus accmed and unpaid interest on this Note on the date of the final payment. Interest shall accrue at the rate of 8.90% per annum. Payments will be applied as aforesaid on the date received. ADDITIONAL TERMS OF THIS NOTE - Each of the following provisions shall apply to this Note, to any extension or modiftcation hereof and to the indebtedness evidenced hereby, except as otherwise expressly stated above or in a separate writing signed by Company and Borrower. iNDEBTEDNESS - This Note evidences the indebtedness of Borrower in connection with the sale of Equipment sold by Company to Borrower. INTERES"=1ntere!t shall be calculated on the basis of a 360-day year and shhlll~.1) charged for the actual number of days elapsed. Accrued interest shall be payable monthly. Accrued interest s a a so be payable when the entire principal balance of this Note becomes due and payable (whether by demand, stated maturity or acceleration) or, if earlier, when such principal balance is actually paid to Company. Interest shall accrue from the date shipment of Equipment is made by Company, provided, however, that to the extent this Note represents a replacement, substitution, renewal or refinancing of existing indebtedness, interest shall accrue from the date hereof. Interest shall accrue on the unpaid balance hereof at the rate provided for in this Note until the entire unpaid balance has been paid in full, notwithstanding the entry of any judgment against Borrower. PREPAYMENT - A prepayment of principal (including any principal repayment as a result of acceleration by Company of this Note) shall require immediate payment to Company of a prepayment fee equal to 1.5% of the principal amount being prepaid. Prepayments shall be applied to scheduled installments of principal in the inverse order of their maturity, shall be accompanied by payment of accrued interest on the principal amount being prepaid and, unless this Note has been accelerated by Company shall not be permitted in an amount less than the scheduled principal installment prior to final maturity of the outstanding principal balance. COLLATERAL - This Note and the indebtedness evidenced hereby shall be secured by any lien or security interest evidenced by a writing (whether now existing or hereafter executed) which contains a provision to the effect that such lien or security interest is intended to secure this Note or indebtedness evidenced hereby. EVENTS OF DEFAULT - Each of the following shall be an Event of Default hereunder: (a) the nonpayment when due ., of any amount payable under this Note or under any obligation or indebtedness to Company of Borrower or any person liable, either absolutely or contingently, for payment of any indebtedness evidenced hereby, including endorsers, guarantors and sureties (each such person is referred to as an "Obligor"); (b) if Borrower or any Obligor has failed to observe or perform any other existing or future agreement with Company of any nature whatsoever; (c) jf any representation, warranty, certificate, financial statement or other infonnation made or given by Borrower or any Obligor to Company is materially incorrect or misleading; (d) if Borrower or any Obligor shall become insolvent or make an assignment for the benefit of creditors or if any petition shall be filed by or against Borrower or any Obligor under any bankruptcy or insolvency law; (e) the entry of any judgment against Borrower or any Obligor which remains unsatisfted for 15 days or the issuance of any attachment, tax lien, levy Or garnishment against any property of material value in which Borrower or any Obligor has an interest; (1) if any attachment, levy, garnishment or similar legal process is served upon Company as a result of any claim against Borrower or any Obligor or against any property of Borrower or any Obligor; (g) the dissolution, merger, consolidation or change in control (as control is defined in Rule 12b-2 under the Security Exchange Act of 1934), of any Borrower which is a corporation or partnership, or the sale or transfer of any substantial portion of any of Borrower's assets, or if any agreement for such dissolution, merger, or consolidation, change in control, sale or transfer is entered into by Borrower, without the written consent of Company; (h) the death of any Borrower or Obligor who is a natural person; (i) if Company determines reasonably and in good faith that an event has occurred or a condition exists which has had, or is likely to have, a material adverse effect on the financial condition or creditworthiness of Borrower or any Obligor, or on the ability of Borrower or any Obligor to perform its obligation evidenced by this Note; (j) if Borrower shall fail to remit promptly when due to the appropriate government agency or authorized depository, any amount collected or e)'.'v,',"o',\- "E" .' . withheld from any employee of p. "y.ower for payroll taxed, Social Security paymer '?r similar payroll deductions; '.(kj if any Obligor shall attempt k .\ninate or disclaim s.uch Obligor's liability for iindebtedness evidenced by this Note; (I) if Company shall reasonably and in g.ood faith detemline and natify Borrawer that any collateral for this Nate or far the indebtedness evidenced hereby is insufficient as to quality .or quantity; (m) ifB.orrower shall fail t.o pay when due any material indebtedness for borrowed money other than to Company; .of (n) if Barrower shall be natifted of the failure .of Barrower or any Obligor to provide financial and ather infarmation promptly when reasonably requested by Company. COMPANY'S REMEDIES - Upon the occurrence of one or more Events of Default, unless Company elects otherwise, the entire unpaid balance of this Note and all accrued interest shall be immediately due and payable without notice to Barrower or any Obligor, and Company may, immediately or at any time thereafter, exercise any or all of its rights and remedies hereunder or under any agreement or otherwise under applicable law against Borrower, any Obligor and any collateral. Company may exercise its rights and remedies in any order and may, at its option, delay in or refrain from exercising some or all of its rights and remedies without prejudice thereto. If Borrower fails to make any payment when due hereunder, Borrower shall pay company a service charge offtve percent (5%) of such delinquent amount plus interest thereon from the due date thereof until paid at the rate set forth above. NOTICE TO BORROWER. Any notice required to be given by Company under the provisions of this Note shall be effective as to each Borrower and each Obligor when addressed to Borrower and deposited in the mail, postage prepaid, for delivery by first class mail at Borrower's mailing address as it appears on Company's records. PAYMENTS - All payments due under this Note are to be made in immediately available funds. If Company accepts payment"iri1lny other fohn, such payment shall not be deemed to have been made until the funds comprising such payment have actually been received by or made available to Company. --:----'" PAYMENT OF COSTS - In addition to the principal and interest payable hereunder, Borrower agrees to pay Company, on demand, all costs and expenses (including reasonable attorney's fees and disbursements) which may be incurred by Company in the collection of this Note or the enforcement of Company's rights and remedied hereunder. REPRESENTATIONS BY BORROWER - If Borrower is a corporation or a general or limited partnership, Borrower represents and warrants that it is validly existing and in good standing in the jurisdiction under whose laws it was organized. If Borrower is a corporation, Borrower represents and warrants that the execution, delivery and performance of this Note are within Borrower's corporate powers, have been duly authorized by all necessary action by Borrower's Board of Directors, and are not in contravention of the terms of Borrower's charter, by-laws, or any resolution of its Board of Directors. lf Borrower is a general or limited partnership, Borrower represents and warrants that the execution, delivery and performance of this Note have been duly authorized and are not in conflict with any provision of Borrower's partnersllip agreement or certificate oflimited partnership. Borrower further represents and warrants that this Note has been validly executed and is enforceable in accordance with its terms, that the execution, delivery and performance by Borrower of this Note are not in contravention oflaw and do not conflict with any indenture, agreement or undertaking to which Borrower is a party or is otherwise bound, and that no consent or approval of any governmental authority or any third party is required in connection with the execution, delivery and performance of this Note. WAIVER, ETC., - Borrower and each Obligor waive presentment, dishonor, notice of dishonor, protest and notice of protest. Neither the failure nor any delay on the part of Company to exercise any right, remedy, power or privilege hereunder shall operate as a waiver or modiftcation thereof. No consent, waiver or modification of the terms afthis Note shall be effective unless set forth in a writing signed by company. All rights and remedies of Company are cumulative and concurrent and no single or partial exercise of any power or privilege shall preclude any other or further exercise of any right, power or privilege. MISCELLANEOUS - This Note is the unconditional obligation of Borrower, and Borrower agrees that Company shall not be required to exercise any of its rights or remedies against any collateral in which it holds a lien or security interest or against which it has a right of setoff or against any particular Obligor. All representation, warranties and agreements herein are made jointly and severally by each Borrower. If any provision of this Note shall be held invalid or unenforceable, such invalidity ofunenforceability shall not affect any other provision hereof. To the extent that this Note represents a replacement, substitution, renewal or refmancing of a pre-existing note or other evidence of indebtedness, the indebtedness represented by such pre-existing note or other instrument shall not be deemed to have been extinguished hereby. This Note has been delivered in and shall be governed by and construed in accordance with the laws of the Commonwealth of Pennsylvania without regard to the law conflicts. This Note shall be binding upon each Borrower and each Obligor and upon their personal representatives, heirs, successors and assigns, and shall benefit Company and its successors and assigns. ASSIGNMENT BY COMPANY - Company may assign or transfer, and Borrower hereby consents to the assignment or transfer, of Company's interest in this Note without notice to Borrower. Borrower agrees that the liability of . Borrower to any assignee of Corr' 'py or any subsequent assignee of such assigner' "I'll be absolute and , .ul1conditional. J CONSENT TO JURISDICTION AND VENUE -IN ANY LEGAL PROCEEDING INVOLVING, DIRECTLY OR INDIRECTLY, ANY MA ITER ARISING OUT OF OR RELATED TO THIS NOTE OR THE RELATIONSHIP EVIDENCED HEREBY, EACH UNDERSIGNED PARTY HEREBY IRREVOCABLY SUBMITS TO THE NONEXCLUSIVE JURISDICTION OF ANY STATE OR FEDERAL COURT LOCATED IN ANY COUNTY OF THE COMMONWEALTH OF PENNSYLVANIA WHERE COMPANY MAINTAINS AN OFFICE AND AGREES NOT TO RAISE ANY OBJECTION TO SUCH JURISDICTION OR TO THE LAYING OR MAINTAINING OF THE VENUE OF ANY SUCH PROCEEDING IN SUCH COUNTY. EACH UNDERSIGNED PARTY AGREES THAT SERVICE OF PROCESS IN ANY SUCH PROCEEDING MAY BE DULY EFFECTED UPON IT BY MAILING A COPY THEREOF, BY REGISTERED MAIL, POSTAGE PREPAID, TO EACH UNDERSIGNED PARTY. WAIVER OF JURY TRIAL - EACH UNDERSIGNED PARTY HEREBY WAIVES AND COMPANY BY ITS ACCEPTANCE HEREOF THEREBY WAIVES, TRIAL BY JURY IN ANY LEGAL PROCEEDING INVOLVING, DIRECTLY OR INDIRECTLY, ANY MATTER (WHETHER SOUNDING IN TORT, CONTRACT OR OTHERWISE) IN ANY WAY ARISING OUT OF OR RELATED TO THIS NOTE OR THE RELATIONSHIP EVIDENCED HEREBY. THIS PROVISION IS A MATERIAL INDUCEMENT FOR COMPANY TO ENTER INTO, ACCEPT OR RELY UPON THIS NOTE. IN WITNESS WHEREOF, Borrower, intending this to be a sealed instrument and intending to be legally bound hereby, has executed and delivered this Note as of the day and year fIrst above written. ~orporation or Partnership: (lwr~ By: J1l7- J ,~rL- /1lfJ(2L P-. hsc-/t..,,- (Print name and title) Fischer Bottle Gas By:)j1~ 3-~ Mark Fischer, President ]ndividuals: Witness Borrower x ~ 'J fl. .~~l-- jA/5 Jl. ,&,,.e...f K (Print name of Witness) x J?lre a 9-X-. /JI fJr2 k... ;+. HS c.J,..r (Print name of Borrower) (Y~ x x (Print name of Witness) (Print name of Borrower) COMMERCIAL NOTE $16,438.25 _ ,September 10,2002 I FOR VALUE RECEIVED, each of the undersigned, jointly and severally if more than one (hereinafter . collectively referred to as "Borrower"), promises to pay to the order of HARSCO CORPORATION (the "Company"), at its offtces at 4718 Old Gettysburg Rd., Ste 300, P. O. Box 8316, Camp Hill, PA 17001-8316, the principal amount of Sixteen Thousand Four Hundred Thirty-eight and ,25/100 DOLLARS, in lawful money of the United States, plus interest, to be paid as follows: said principal plus interest shall be payable in 59 consecutive equal monthly installments of principal and interest, each in the amount of $340.43 commencing 30 days from date of shipment of Equipment and on the same day of the month each month thereafter, each of which installments shall be applied first to the payment of accrued and unpaid interest and then to the payment of principal and a final installment in an amount which is necessary to pay in full all of the outstanding principal plus accmed and unpaid interest on this Note on the date of the final payment Interest shall accrue at the rate of 8.90% per annum. Payments will be applied as aforesaid on the date received. ADDITIONAL TERMS OF THIS NOTE - Each ofthe following provisions shall apply to this Note, to any extension or modiftcation hereof and to the indebtedness evidenced hereby, except as otherwise expressly stated above or in a separate writing signed by Company and Borrower. INDEBTEDNESS - This Note evidences the indebtedness of Borrower in connection with the sale of Equipment sold by Company to Borrower. INTEREST - Interest shall be calculated on the basis of a 360-day year and shall be charged for the actual number of days elapsed. Accmed interest shall be payable monthly. Accrued interest shall also be payable when the entire principal balance of this Note becomes due and payable (whether by demand, stated maturity or acceleration) or, if earlier, when such principal balance is actually paid to Company. Interest shall accrue from the date shipment of Equipment is made by Company, provided, however, that to the extent this Note represents a replacement, substitution, renewal or reftnancing of existing indebtedness, interest shall accme from the date hereof. Interest shall accrue on the unpaid balance hereof at the rate provided for in this Note until the entire unpaid balance has been paid in full, notwithstanding the entry of any judgment against Borrower. PREPAYMENT - A prepayment of principal (including any principal repayment as a result of acceleration by Company of this Note) shall require immediate payment to Company of a prepayment fee equal to 1.5% of the principal amount being prepaid. Prepayments shall be applied to scheduled installments of principal in the inverse order of their maturity, shall be accompanied by payment of accrued interest on the principal amount being prepaid and, unless this Note has been accelerated by Company shall not be permitted in an amount less than the scheduled principal installment prior to ftnal maturity of the outstanding principal balance. COLLATERAL - This Note and the indebtedness evidenced hereby shall be secured by any lien or security interest evidenced by a writing (whether now existing or hereafter executed) which contains a provision to the effect that such lien or security interest is intended to secure this Note or indebtedness evidenced hereby. EVENTS OF DEFAULT - Each of the following shall be an Event of Default hereunder: (a) the nonpayment when due of any amount payable under this Note or under any obligation or indebtedness to Company of Borrower or any person liable, either absolutely or contingently, for payment of any indebtedness evidenced hereby, including endorsers, guarantors and sureties (each such person is referred to as an "Obligor"); (b) if Borrower or any Obligor has failed to observe or perform any other existing or future agreement with Company of any nature whatsoever; (c) if any representation, warranty, certifIcate, financial statement or other information made or given by Borrower or any Obligor to Company is materially incorrect or misleading; (d) if Borrower or any Obligor shall become insolvent or make an assignment for the beneftt of creditors or if any petition shall be filed by or against Borrower or any Obligor under any bankruptcy or insolvency law; (e) the entry of any judgment against Borrower or any Obligor which remains unsatisfied for 15 days or the issuance of any attachment, tax lien, levy or garnishment against any property of material value in which Borrower or any Obligor has an interest; (I) ifany attachment, levy, garnishment or similar legal process is served upon Company as a result of any claim against Borrower or any Obligor or against any property of Borrower or any Obligor; (g) the dissolution, merger, consolidation or change in control (as control is deftned in Rule l2b-2 under the Security Exchange Act of 1934), of any Borrower which is a corporation or partnership, or the sale or transfer of any substantial portion of any of Borrower's assets, or if any agreement for such dissolution, merger, or consolidation, change in control, sale or transfer is entered into by Borrower, without the written consent of Company; (h) the death of any Borrower or Obligor who is a natural person; (i) if Company determines reasonably and in good faith that an event has occurred or a condition exists which has had, or is likely to have, a material adverse effect on the financial condition or creditworthiness of Borrower or any Obligor, or on the ability of Borrower or any Obligor to perform its obligation evidenced by this Note; U) if Borrower shall fail to remit promptly when due to the appropriate government agency or authorized depository, any amount collected or S ')l'n~' -\ " t=:-II withheld from any employee otBorrower tor payroll taxed, Social Security payments or similar payroll deductions; (k) if any Obligor shall attemp' . . terminate or disclaim such Obligor's liability f0"'pe indebtedness evidenced by , . this Note; (I) if Company shah .lonably and in good faith determine and notif) !Tower that any collateral for this Note or for the indebtedness evidenced hereby is insufficient as to quality or quantity; (m) if Borrower shall fail . to pay when due any material indebtedness for borrowed money other than to Company; of(n) if Borrower shall be notified of the failure of Borrower or any Obligor to provide ftnancial and other information promptly when reasonably requested by Company. COMPANY'S REMEDIES - Upon the occurrence of one or more Events of Default, unless Company elects otherwise, the entire unpaid balance of this Note and all accrued interest shall be immediately due and payable without notice to Borrower or any Obligor, and Company may, immediately or at any time thereafter, exercise any or all of its rights and remedies hereunder or under any agreement or otherwise under applicable law against Borrower, any Obligor and any collateral. Company may exercise its rights and remedies in any order and may, at its option, delay in or refrain from exercising some or all of its rights and remedies without prejudice thereto. If Borrower fails to make any payment when due hereunder, Borrower shall pay company a service charge of five percent (5%) of such delinquent amount plus interest thereon from the due date thereof until paid at the rate set forth above. NOTICE TO BORROWER - Any notice required to be given by Company under the provisions of this Note shall be effective as to each Borrower and each Obligor when addressed to Borrower and deposited in the mail, postage prepaid, for delivery by first class mail at Borrower's mailing address as it appears on Company's records. PAYMENTS. All payments due under this Note are to be made in immediately available funds. If Company accepts payment in any other form, such payment shall not be deemed to have been made until the funds comprising such payment have actually been received by or made available to Company. PAYMENT OF COSTS -In addition to the principal and interest payable hereunder, Borrower agrees to pay Company, on demand, all costs and expenses (including reasonable attorney's fees and disbursements) which maybe incurred by Company in the collection of this Note or the enforcement of Company's rights and remedied hereunder. REPRESENTATIONS BY BORROWER - If Borrower is a corporation or a general or limited partuership, Borrower represents and warrants that it is validly existing and in good standing in the jurisdiction under whose laws it was organized. If Borrower is a corporation, Borrower represents and warrants that the execution, delivery and performance of this Note are within Borrower's corporate powers, have been duly authorized by all necessary action by Borrower's Board of Directors, and are not in contravention of the terms of Borrower's charter, by.laws, or any resolution of its Board of Directors. If Borrower is a general or limited partnership, Borrower represents and warrants that the execution, delivery and performance of this Note have been duly authorized and are not in conflict with any provision ofBorrower's partnership agreement or certiftcate of limited partnership. Borrower further represents and warrants that this Note has been validly executed and is enforceable in accordance with its terms, that the execution, delivery and performance by Borrower of this Note are not in contravention of law and do not conflict with any indenture, agreement or undertaking to which Borrower is a party or is otherwise bound, and that no consent or approval of any govermnental authority or any third party is required in connection with the execution, delivery and performance of this Note. WAIVER, ETC" - Borrower and each Obligor waive presentment, dishonor, notice of dishonor, protest and notice of protest. Neither the failure nor any delay on the part of Company to exercise any right, remedy, power or privilege hereunder shall operate as a waiver or modification thereof. No consent, waiver or modiftcation of the terms of this Note shall be effective unless set forth in a writing signed by company. All rights and remedies of Company are cumulative and concurrent and no single or partial exercise of any power or privilege shall preclude any other or further exercise of any right, power or privilege. MISCELLANEOUS. This Note is the unconditional obligation of Borrower, and Borrower agrees that Company shall not be required to exercise any of its rights or remedies against any collateral in which it holds a lien or security interest or against which it has a right of setoff or against any particular Obligor. All representation, warranties and agreements herein are made jointly and severally by each Borrower. If any provision of this Note shall be held invalid or unenforceable, such invalidity of un enforceability shall not affect any other provision hereof. To the extent that this Note represents a replacement, substitution, renewal or refmancing of a pre-existing note or other evidence of indebtedness, the indebtedness represented by such pre-existing note or other instrument shall not be deemed to have been extinguished hereby. This Note has been delivered in and shall be governed by and construed in accordance with the laws of the Commonwealth of Pennsylvania without regard to the law conflicts. This Note shall be binding upon each Borrower and each Obligor and upon their personal representatives, heirs, successors and assigns, and shall beneftt Company and its successors and assigns. ASSIGNMENT BY COMPANY - Company may assign or transfer, and Borrower hereby consents to the assignment or transfer, of Company's interest in this Note without notice to Borrower. Borrower agrees that the liability of Borrower to any assIgnee ot Company or any subsequent assignee of such assignee, shall be absolute and unconditional. i . , CONSENT TO JURISDICTION AND VENUE - IN ANY LEGAL PROCEEDING INVOLVING, DIRECTLY OR INDIRECTLY, ANY MATTER ARISING OUT OF OR RELATED TO THIS NOTE OR THE RELATIONSHIP EVIDENCED HEREBY, EACH UNDERSIGNED PARTY HEREBY IRREVOCABLY SUBMITS TO THE NONEXCLUSIVE JURISDICTION OF ANY STATE OR FEDERAL COURT LOCATED IN ANY COUNTY OF THE COMMONWEALTH OF PENNSYL VANIA WHERE COMPANY MAINTAINS AN OFFICE AND AGREES NOT TO RAISE ANY OBJECTION TO SUCH JURISDICTION OR TO THE LAYING OR MAINTAINING OF THE VENUE OF ANY SUCH PROCEEDING IN SUCH COUNTY. EACH UNDERSIGNED PARTY AGREES THAT SERVICE OF PROCESS IN ANY SUCH PROCEEDING MAY BE DULY EFFECTED UPON IT BY MAILING A COpy THEREOF, BY REGISTERED MAIL, POSTAGE PREPAID. TO EACH UNDERSIGNED PARTY. WAIVER OF JURY TRIAL - EACH UNDERSIGNED PARTY HEREBY WAIVES AND COMPANY BY ITS ACCEPTANCE HEREOF THEREBY WAIVES, TRIAL BY JURY IN ANY LEGAL PROCEEDING INVOLVING, DIRECTLY OR INDIRECTLY, ANY MATTER (WHETHER SOUNDING IN TORT, CONTRACT OR OTHERWISE) IN ANY WAY ARISING OUT OF OR RELATED TO THIS NOTE OR THE RELATIONSHIP EVIDENCED HEREBY. THIS PROVISION IS A MATERIAL INDUCEMENT FOR COMPANY TO ENTER INTO. ACCEPT OR REL Y UPON THIS NOTE. IN WITNESS WHEREOF, Borrower, intending this to be a sealed instrument and intending to be legally bound hereby, has executed and delivered this Note as of the day and year first above written. Corporation or Partnership: Fischer Bottle Gas By: mvL ~ ?1--- f11/4flJL. ff r; J., V' (Print name and title) By:1I1d.- t: J~ Mark A, Fischer. President Individuals: Witness Borrower f-cj{L R fJ~ PC<.+rlc.,'A. rC., P,.i-ed- (Print name of Witness) x ;mA- t; -:y tJ1 /9t'2.4c.. A hi> d....- (Print name of Borrower) x x (Print name of Witness) (Print name of Borrower) COMMERCIAL NOTE , , , . '$16,438,25 JePtember 10, 2002 FOR VALUE RECEIVED, each of the undersigned, jointly and severally if more than one (hereinafter collectively referred to as "Borrower"), promises to pay to the order of HARSCO CORPORATION (the "Company"), at its offtces at 4718 Old Gettysburg Rd., Ste 300, P. O. Box 8316, Camp Hill, PA 17001-8316, the principal amount of Sixteen Thousand Four Hundred Thirty-eight and .25/100 DOLLARS, in lawful money of the United States, plus interest, to be paid as follows: said principal plus interest shall be payable in 59 consecutive equal monthly installments of principal and interest, each in the amount of $340.43 commencing 30 days from date of shipment of Equipment and on the same day of the month each month thereafter, each of which installments shall be applied ftrst to the payment of accrued and unpaid interest and then to the payment of principal and a ftnal installment in an amount which is necessary to pay in full all of the outstanding principal plus accrued and unpaid interest on this Note on the date of the ftnal payment. Interest shall accrue at the rate of8.90% per annum. Payments will be applied as aforesaid on the date received, ADDITIONAL TERMS OF THIS NOTE - Eacb of the following provisions shall apply to this Note, to any extension or modiftcation hereof and to the indebtedness evidenced hereby, except as otherwise expressly stated above or in a separate writing signed by Company and Borrower. INDEBTEDNESS - This Note evidences the indebtedness of Borrower in connection with the sale of Equipment sold by Company to Borrower. INTEREST - Interest shall be calculated on the basis of a 360-day year and shall be charged for the actual number of days elapsed. Accrued interest shall be payable monthly. Accrued interest shall also be payable when the entire principal balance of this Note becomes due and payable (whether by demand, stated maturity or acceleration) or, if earlier, when such principal balance is actually paid to Company. Interest shall accrue from the date shipment of Equipment is made by Company, provided, however, that to the extent this Note represents a replacement, substitution, renewal or refinancing of existing indebtedness, interest shall accme from the date hereof. Interest shall accrue on the unpaid balance hereof at the rate provided for in this Note until the entire unpaid balance has been paid in full, notwithstanding the entry of any judgment against Borrower. PREPAYMENT - A prepayment of principal (including any principal repayment as a result of acceleration by Company of this Note) shall require immediate payment to Company ofa prepayment fee equal to 1.5% of the principal amount being prepaid. Prepayments shall be applied to scheduled installments of principal in the inverse order of their maturity, shall be accompanied by payment of accrued interest on the principal amount being prepaid and, unless this Note has been accelerated by Company shall not be pennitted in an amount less than the scheduled principal installment prior to ftnal maturity of the outstanding principal balance. COLLATERAL. This Note and the indebtedness evidenced hereby shall be secured by any lien or security interest evidenced by a writing (whether now existing or hereafter executed) which contains a provision to the effect that such lien or security interest is intended to secure this Note or indebtedness evidenced hereby. EVENTS OF DEFAULT - Each of the following shall be an Event of Default hereunder: (a) the nonpayment when due of any amount payable under this Note or under any obligation or indebtedness to Company of Borrower or any person liable, either absolutely or contingently, for payment of any indebtedness evidenced hereby, including endorsers, guarantors and sureties (each such person is referred to as an "Obligor"); (b) if Borrower or any Obligor has failed to observe or perform any other existing or future agreement with Company of any nature whatsoever; (c) if any representation, warranty, certificate, [maneial statement or other information made or given by Borrower or any Obligor to Company is materially incorrect or misleading; (d) if Borrower or any Obligor shall become insolvent or make an assignment for the beneftt of creditors or if any petition shall be med by or against Borrower or any Obligor under any bankruptcy or insolvency law; (e) the entry of any judgment against Borrower or any Obligor which remains unsatisfted for 15 days or the issuance of any attachment, tax lien, levy or garnishment against any property of material value in which Borrower or any Obligor has an interest; (I) if any attachment, levy, garnishment or similar legal process is served upon Company as a result of any claim against Borrower or any Obligor or against any property of Borrower or any Obligor; (g) the dissolution, merger, consolidation or change in control (as control is defmed in Rule 12b-2 under the Security Exchange Act of 1934), of any Borrower which is a corporation or partnership, or the sale or transfer of any substantial portion of any of Borrower's assets, or if any agreement for such dissolution, merger, or consolidation, change in control, sale or transfer is entered into by Borrower, without the written consent of Company; (h) the death of any Borrower or Obligor who is a natural person; (i) if Company determines reasonably and in good faith that an event has occurred or a condition exists which has had, or is likely to have, a material adverse effect on the fmanciaI condition or creditworthiness of Borrower or any Obligor, or on the ability of Borrower or any Obligor to perform its obligation evidenced by this Note; U) if Borrower shall fail to remit promptly when due to the appropriate government agency or authorized depository, any amount collected or c.~'~'\\ "G" withheld from any employee of Br~pwer for payroll taxed, Social Security payments ~r similar payroll deductions; (k) if any Obligor shall attempt t, minate or disclaim such Obligor's liability for, ,ndebtedness evidenced by this Note; (I) if Company shall reasonably and in good faith detennine and notify Borrower that any collateral for this Note or for the indebtedness evidenced hereby is insufftcient as to quality or quantity; (m) if Borrower shall fail to pay when due any material indebtedness for borrowed money other than to Company; of (n) if Borrower shall be notifted of the failure of Borrower or any Obligor to provide ftnancial and other information promptly when reasonably requested by Company. COMPANY'S REMEDIES - Upon the occurrence of one or more Events of Default, unless Company elects otherwise, the entire unpaid balance of this Note and all accrued interest shall be immediately due and payable without notice to Borrower or any Obligor, and Company may, inunediately or at any time thereafter, exercise any or all of its rights and remedies hereunder or under any agreement or otherwise under applicable law against Borrower, any Obligor and any collateral. Company may exercise its rights and remedies in any order and may, at its option, delay in or refrain from exercising some or all of its rights and remedies without prejudice thereto. If Borrower fails to make any payment when due hereunder, Borrower shall pay company a service charge of ftve percent (5%) of such delinquent amount plus interest thereon from the due date thereof until paid at the rate set forth above. NOTICE TO BORROWER - Any notice required to be given by Company under the provisions of this Note shall be effective as to each Borrower and each Obligor when addressed to Borrower and deposited in the mail, postage prepaid, for delivery by ftrst class mail at Borrower's mailing address as it appears on Company's records. PAYMENTS - All payments due under this Note are to be made in immediately available funds. If Company accepts payment in any other form, such payment shall not be deemed to have been made until the funds comprising such payment have actually been received by or made available to Company. PAYMENT OF COSTS - In addition to the principal and interest payable hereunder, Borrower agrees to pay Company, on demand, all costs and expenses (including reasonable attorney's fees and disbursements) which may be incurred by Company in the collection of this Note or the enforcement of Company's rights and remedied hereunder. REPRESENTATIONS BY BORROWER -If Borrower is a corporation or a general or limited partnership, Borrower represents and warrants that it is validly existing and in good standing in the jurisdiction under whose laws it was organized. If Borrower is a corporation, Borrower represents and warrants that the execution, delivery and performance of this Note are within Borrower's corporate powers, have been duly authorized by all necessary action by Borrower's Board of Directors, and are not in contravention of the terms of Borrower's charter, by-laws, or any resolution of its Board of Directors. If Borrower is a general or limited partnership, Borrower represents and warrants that the execution, delivery and performance of this Note have been duly authorized and are not in conflict with any provision of Borrower's partnership agreement or certiftcate oflimited partnership. Borrower further represents and warrants that this Note has been validly executed and is enforceable in accordance with its terms, that the execution, delivery and performance by Borrower of this Note are not in contravention oflaw and do not conflict with any indenture, agreement or undertaking to which Borrower is a party or is otherwise bound, and that no consent or approval of any governmental authority or any third party is required in connection with the execution, delivery and performance of this Note. WAIVER, ETC., - Borrower and each Obligor waive presentment, dishonor, notice of dishonor, protest and notice of protest. Neither the failure nor any delay on the part of Company to exercise any right, remedy, power or privilege hereunder shall operate as a waiver or modiftcation thereof. No consent, waiver or modification of the terms of this Note shall be effective unless set forth in a writing signed by company. All rights and remedies of Company are cumulative and concurrent and no single or partial exercise of any power or privilege shall preclude any other or further exercise of any right, power or privilege. MISCELLANEOUS - This Note is the unconditional obligation of Borrower, and Borrower agrees that Company shall not be required to exercise any of its rights or remedies against any collateral in which it holds a lien or security interest or against which it has a right of setoff or against any particular Obligor. All representation, warranties and agreements herein are made jointly and severally by each Borrower. If any provision of this Note shaU be held invalid or unenforceable, such invalidity ofunenforceability shaU not affect any other provision hereof. To the extent that this Note represents a replacement, substitution, renewal or refmancing of a pre-existing note or other evidence of indebtedness, the indebtedness represented by such pre-existing note or other instrument shaU not be deemed to have been extinguished hereby. This Note has been delivered in and shall be governed by and construed in accordance with the laws of the Commonwealth of Pennsylvania without regard to the law conflicts. This Note shall be binding upon each Borrower and each Obligor and upon their personal representatives, heirs, successors and assigns, and shall benefit Company and its successors and assigns. ASSIGNMENT BY COMPANY - Company may assign or transfer, and Borrower hereby consents to the assignment or transfer, of Company's interest in this Note without notice to Borrower. Borrower agrees that the liability of Borrower to any assignee of Com''^''1Y or any subsequent assignee of such assignee, ~h.aU be absolute and - . - .~ anconditional. CONSENT TO JURISDICTION AND VENUE. IN ANY LEGAL PROCEEDING INVOLVING, DIRECTLY OR INDIRECTLY, ANY MATTER ARISING OUT OF OR RELATED TO THIS NOTE OR THE RELATIONSHIP EVIDENCED HEREBY, EACH UNDERSIGNED PARTY HEREBY IRREVOCABLY SUBMITS TO THE NONEXCLUSIVE JURISDICTION OF ANY STATE OR FEDERAL COURT LOCATED IN ANY COUNTY OF THE COMMONWEALTH OF PENNSYLVANIA WHERE COMPANY MAINTAINS AN OFFICE AND AGREES NOT TO RAISE ANY OBJECTION TO SUCH JURISDICTION OR TO THE LAYING OR MAINTAINING OF THE VENUE OF ANY SUCH PROCEEDING IN SUCH COUNTY. EACH UNDERSIGNED PARTY AGREES THAT SERVICE OF PROCESS IN ANY SUCH PROCEEDING MAYBE DULY EFFECTED UPON IT BY MAILING A COPY THEREOF. BY REGISTERED MAIL, POSTAGE PREPAID, TO EACH UNDERSIGNED PARTY. WAIVER OF JURY TRIAL - EACH UNDERSIGNED PARTY HEREBY WAIVES AND COMPANY BY ITS ACCEPTANCE HEREOF THEREBY WAIVES, TRIAL BY JURY IN ANY LEGAL PROCEEDING INVOLVING. DIRECTLY OR INDIRECTLY, ANY MATTER (WHETHER SOUNDING IN TORT, CONTRACT OR OTHERWISE) IN ANY WAY ARISING OUT OF OR RELATED TO THIS NOTE OR THE RELATIONSHIP EVIDENCED HEREBY. THIS PROVISION IS A MATERIAL INDUCEMENT FOR COMPANY TO ENTER INTO, ACCEPT OR RELY UPON THIS NOTE. IN WITNESS WHEREOF, Borrower, intending this to be a sealed instrument and intending to be legaUy bound hereby, has executed and delivered this Note as of the day and year first above written. Corporation or Partnership: Fischer Bottle Gas By:PGJ1^- (l1fl~t n.~ an[!l;r (l~' By: /11cA- tj ~~ Mark A. Fischer; President Individuals: ;~~f~ ~(J( +rl t.' '^- R, frl.e r+-- (Print name of Witness) Borrower x mvL c. fA-- mf1f4- 14 Fi~c..hA/ (Print name of Borrower) x x (Print name of Witness) (Print name of Borrower) COMMERCIAL NOTE . $] 5,583.25 ~ptember ] 0, 2002 FOR VALUE RECEIVED, each of the undersigned, jointly and severally if more than one (hereinafter collectively referred to as "Borrower"), promises to pay to the order of HARSCO CORPORATION (the "Company"), at its offtces at 4718 Old Gettysburg Rd., Ste 300, P. O. Box 8316, Camp Hill, PA ]7001-83]6, the principal amount of Fifteen Thousand Five Hundred Eighty-three and .25/]00 DOLLARS, in lawful money of the United States, plus interest, to be paid as follows: said principal plus interest shall be payable in 59 consecutive equal monthly installments of principal and interest, each in the amount of $322.73 commencing 30 days from date of shipment of Equipment and on the same day of the month each month thereafter, each of which installments shall be applied ftrst to the payment of accrued and unpaid interest and then to the payment of principal and a ftnal installment in an amount which is necessary to pay in full all of the outstanding principal plus accrued and unpaid interest on this Note on the date of the ftnal payment. Interest shall accrue at the rate of8.90% per annum. Payments will be applied as aforesaid on the date received. ADOITIONAL TERMS OF THIS NOTE - Each of the following provisions shall apply to this Note, to any extension or modification hereof and to the indebtedness evidenced hereby, except as otherwise expressly stated above or in a separate writing signed by Company and Borrower. INDEBTEDNESS - This Note evidences the indebtedness of Borrower in connection with the sale of Equipment sold by Company to Borrower. INTEREST -Interest shall be calculated on the basis ofa 360-day year and shall be charged for the actual number of days elapsed. Accrued interest shall be payable monthly. Accrued interest shall also be payable when the entire principal balance of this Note becomes due and payable (whether by demand, stated maturity or acceleration) or, if earlier, when such principal balance is actually paid to Company. Interest shall accrue from the date shipment of Equipment is made by Company, provided, however, that to the extent this Note represents a replacement, substitution, renewal or reftnancing of existing indebtedness, interest shall accrue from the date hereof. Interest shall accrue on the unpaid balance hereof at the rate provided for in this Note until the entire unpaid balance has been paid in full, notwithstanding the entry of any judgment against Borrower. PREPAYMENT - A prepayment of principal (including any principal repayment as a result of acceleration by Company of this Note) shall require immediate payment to Company of a prepayment fee equal to 1.5% of the principal amount being prepaid. Prepayments shall be applied to scheduled installments of principal in the inverse order of their maturity, shall be accompanied by payment of accrued interest on the principal amount being prepaid and, unless this Note has been accelerated by Company shall not be permitted in an amount less than the scheduled principal installment prior to ftnal maturity of the outstanding principal balance. COLLATERAL - This Note and the indebtedness evidenced hereby shall be secured by any lien or security interest evidenced by a writing (whether now existing or hereafter executed) which contains a provision to the effect that such lien or security interest is intended to secure this Note or indebtedness evidenced hereby. EVENTS OF DEFAULT - Each of the following shall be an Event of Default hereunder: (a) the nonpayment when due of any amount payable under this Note or under any obligation or indebtedness to Company of Borrower or any person liable, either absolutely or contingently, for payment of any indebtedness evidenced hereby, including endorsers, guarantors and sureties (each such person is referred to as an "Obligor"); (b) if Borrower or any Obligor has failed to observe or perform any other existing or future agreement with Company of any nature whatsoever; (c) if any representation, warranty, certificate, financial statement or other infonnation made or given by Borrower or any Obligor to Company is materially incorrect or misleading; (d) if Borrower or any Obligor shall become insolvent or make an assignment for the beneftt of creditors or if any petition shall be filed by or against Borrower or any Obligor under any bankruptcy or insolvency law; (e) the entry of any judgment against Borrower or any Obligor which remains unsatisfied for ] 5 days or the issuance of any attachment, tax lien, levy or garnishment against any property of material value in which Borrower or any Obligor has an interest; (I) if any attachment, levy, garnishment or similar legal process is served upon Company as a result of any claim against Borrower or any Obligor or against any property of Borrower or any Obligor; (g) the dissolution, merger, consolidation or change in control (as control is deftned in Rule l2b-2 under the Security Exchange Act of 1934), of any Borrower which is a corporation or partnership, or the sale or transfer of any substantial portion of any of Borrower's assets, or if any agreement for such dissolution, merger, or consolidation, change in control, sale or transfer is entered into by Borrower, without the written consent of Company; (h) the death of any Borrower or Obligor who is a natural person; (i) if Company determines reasonably and in good faith that an event has occurred or a condition exists which has had, or is likely to have, a material adverse effect on the financial condition or creditworthiness of Borrower or any Obligor, or on the ability of Borrower or any Obligor to perform its obligation evidenced by this Note; (j) if Borrower shall fail to remit promptly when due to the appropriate government agency or authorized depository, any amount collected or e:)t""~\\- "~' . withheld from any employee of Borrower for payroll taxed, Social Security paymepts ~r similar payroll deductions; . (k) if any Obligor shall attempt ~~ 'ininate or disclaim such Obligor's liability fo 'indebtedness evidenced by this Note; (I) if Company shall reasonably and in good faith determine and notify Borrower that any collateral for . this Note or for the indebtedness evidenced hereby is insufftcient as to quality or quantity; (m) if Borrower shall fall to pay when due any material indebtedness for borrowed money other than to Company; of(n) if Borrower shall be notifted of the failure of Borrower or any Obligor to provide financial and other information promptly when reasonably requested by Company. COMPANV'S REMEDIES - Upon the occurrence of one or more Events of Default, unless Company elects otherwise, the entire unpaid balance of this Note and all accrued interest shall be immediately due and payable without notice to Borrower or any Obligor, and Company may, immediately or at any time thereafter, exercise any or all of its rights and remedies hereunder or under any agreement or otherwise under applicable law against Borrower, any Obligor and any collateral. Company may exercise its rights and remedies in any order and may, at its option, delay in or refrain from exercising some or all of its rights and remedies without prejudice thereto. If Borrower fails to make any payment when due hereunder, Borrower shall pay company a service charge offtve percent (5%) of such delinquent amount plus interest thereon from the due date thereof until paid at the rate sel forth above. NOTICE TO BORROWER - Any notice required to be given by Company under the provisions of this Note shall be effective as to each Borrower and each Obligor when addressed to Borrower and deposited in the mail, postage prepaid, for delivery by fIrst class mail at Borrower's mailing address as it appears on Company's records. PAYMENTS - All payments due under this Note are to be made in immediately available funds. If Company accepts payment in any other form, such payment shall not be deemed to have been made until the funds comprising such payment have actually been received by or made available to Company. PAYMENT OF COSTS - In addition to the principal and interest payable hereunder, Borrower agrees to pay Company, on demand, all costs and expenses (including reasonable attorney's fees and disbursements) which may be incurred by Company in the collection of this Note or the enforcement of Company's rights and remedied hereunder. REPRESENTATIONS BY BORROWER - If Borrower is a corporation or a general or limited partnership, Borrower represents and warrants that it is validly existing and in good standing in the jurisdiction under whose laws it was organized. If Borrower is a corporation, Borrower represents and warrants that the execution, delivery and performance of this Note are within Borrower's corporate powers, have been duly authorized by all necessary action by Borrower's Board of Directors, and are not in contravention of the terms of Borrower's charter, by-laws, or any resolution of its Board of Directors. If Borrower is a general or limited partnership, Borrower represents and warrants that the execution, delivery and performance ofthis Note have been duly authorized and are not in conflict with any provision of Borrower's partnership agreement or certificate oflimited partnership. Borrower further represents and warrants that this Note has been validly executed and is enforceable in accordance with its terms, that the execution, delivery and performance by Borrower of this Note are not in contravention oflaw and do not conflict with any indenture, agreement or undertaking to which Borrower is a party or is otherwise bound, and that no consent or approval of any governmental authority or any third party is required in connection with the execution, delivery and performance of this Note. WAIVER, ETC" - Borrower and each Obligor waive presentment, dishonor, notice of dishonor, protest and notice of protest. Neither the failure nor any delay on the part of Company to exercise any right, remedy, power or privilege hereunder shall operate as a waiver or modification thereof. No consent, waiver or modification of the terms of this Note shall be effective unless set forth in a writing signed by company. All rights and remedies of Company are cumulative and concurrent and no single or partial exercise of any power or privilege shall preclude any other or further exercise of any right, power or privilege. MISCELLANEOUS - This Note is the unconditional obligation of Borrower, and Borrower agrees that Company shall not be required to exercise any of its rights or remedies against any collateral in which it holds a lien or security interest or against which it has a right of setoff or against any particular Obligor. All representation, warranties and agreements berein are made jointly and severally by each Borrower. If any provision of this Note shall be held invalid or unenforceable, such invalidity ofunenforceability shall not affect any other provision hereof. To the extent that this Note represents a replacement, substitution, renewal or refmancing of a pre-existing note or other evidence of indebtedness, the indebtedness represented by such pre-existing note or other instrument shall not be deemed to have been extinguished hereby. This Note has been delivered in and shall be governed by and construed in accordance with the laws of the Commonwealth of Pennsylvania without regard to the law conflicts. This Note shall be binding upon each Borrower and each Obligor and upon their personal representatives, heirs, successors and assigns, and shall benefit Company and its successors and assigns. ASSlGNMENT BY COMPANY - Company may assign or transfer, and Borrower hereby consents to the assignment Of transfer, of Company's interest in this Note without notice to Borrower. Borrower agrees that the liability of . Borrower to any assignee of CO,f'- '~y or any subsequent assignee of such assignee'''~lI be absolute and . unconditional. I " I CONSENT TO JURISDICTION AND VENUE. IN ANY LEGAL PROCEEDING INVOL VING, DIRECTLY OR INDIRECTLY, ANY MATTER ARISING OUT OF OR RELATED TO THIS NOTE OR THE RELATIONSHIP EVIDENCED HEREBY, EACH UNDERSIGNED PARTY HEREBY IRREVOCABLY SUBMITS TO THE NONEXCLUSIVE JURISDICTION OF ANY STATE OR FEDERAL COURT LOCATED IN ANY COUNTY OF THE COMMONWEALTH OF PENNSYLVANIA WHERE COMPANY MAINTAINS AN OFFICE AND AGREES NOT TO RAISE ANY OB~ECTION TO SUCH JURISDICTION OR TO THE LAYING OR MAINTAINING OF THE VENUE OF ANY SUCH PROCEEDING IN SUCH COUNTY. EACH UNDERSIGNED PARTY AGREES THAT SERVICE OF PROCESS IN ANY SUCH PROCEEDING MAYBE DULY EFFECTED UPON IT BY MAILING A COpy THEREOF, BY REGISTERED MAIL, POSTAGE PREPAID, TO EACH UNDERSIGNED PARTY. WAIVER OF JURY TRIAL - EACH UNDERSIGNED PARTY HEREBY WAIVES AND COMPANY BY ITS ACCEPTANCE HEREOF THEREBY WAIVES, TRIAL BY JURY IN ANY LEGAL PROCEEDING INVOLVING, DIRECTLY OR INDIRECTLY, ANY MATTER (WHETHER SOUNDING IN TORT, CONTRACT OR OTHERWISE) IN ANY WAY ARISING OUT OF OR RELATED TO THIS NOTE OR THE RELATIONSHIP EVIDENCED HEREBY. THIS PROVISION IS A MATERIAL INDUCEMENT FOR COMPANY TO ENTER INTO, ACCEPT OR RELY UPON THIS NOTE. IN WITNESS WHEREOF, Borrower, intending this to be a sealed instrument and intending to be legally bound hereby, has executed and delivered this Note as of the day and year fIrst above written. Corporation or Partnership: Fischer Bottle Gas By:?f1~ PI ~ (1If/(LIL.. f) h.sJ.- (Print name and title) By: j#.-Lc ?<-- Mark A, Fischer. President Individuals: At,/LJ- P::+;,,~.,~ J2. Pr,'~S r- (Print name of Witness) Borrower x)17vL ~~ /1114-r2-iL fJ. ~ ~ (Print name ofBorrowerl x x (Print name of Witness l (Print name of Borrower) Personal Guaranty Contract GUARANTY AGREEMENT dated this 2nd day of May 2003 for and in consideration of the extension of credit to DOL, Inc. dba Fisher LP Gas and/or his agents of Teresa E. Fisher and Mark A. Fisher (referred to hereinafter as the "Guarantor"), and other good and sufficient considerations to the undersigned accruing, I (or we, jointly and severally) hereby give this Continuing Guaranty to Harsco Corporation, Gas & Fluid Control Group (referred to hereinafter as the "Harsco"), for the payment in full, together with all interest, fees and charges of whatsoever nature and kind of any and all indebtedness of the Guarantor to the Harsco, whether an open account, credit card account, or evidenced by note. secured or unsecured, due and owing at the present time, or that may hereafter be due and owing by Guarantor to Harsco, and it is further agreed that if bills are not paid when due, I (or we or any of us) will personally pay the same upon notice and demand. It is agreed that this Continuing Guaranty applies to any extensions or renewals of credit given by Harsco to Guarantor. It is specifically understood and agreed that the Harsco shall not be required to exhaust its legal remedies for recovery and collection against the Guarantor before looking to the undersigned (or any of them) for payment of this account, but that if the account is not paid when due Harsco may, at once, notify the undersigned, and upon receipt of such notice that the said account is past due and unpaid, the undersigned assumes liability therefor and agrees to pay the same without delay or defalcation. The discharge of Guarantor in bankruptcy will not relieve the undersigned from liability with regard to any amount due and owing under this Continuing Guaranty. It is distinctly understood and agreed that Harsco may enter suit against the undersigned (or any one or more of the undersigned) for the recovery of the entire amount of said indebtedness hereby secured, and may recover judgment therefore against the undersigned (or anyone or more of said guarantors). It is also understood and agreed that in the event the Harsco commences such suit then and in that event I (or we and each of us) shall pay for the cost of suit and attorneys' fees and commissions for collection, in addition to the indebtedness hereby secured. It is further understood and agreed that the undersigned, each for himself, his heirs, executors, and administrators, does hereby waive the benefit of any and all state laws exempting real and/or personal properly from levy and sale on execution, and agrees to the immediate issuance and levying of writs of execution upon his interests in any real estate of personal properly and the subjugation thereof to sale for satisfaction of any such judgment or judgments. The undersigned hereby waives notice of the acceptance of this guaranty. notice of demand and maturity of payments to become due, notice of default in payment by the Guarantor and all such notices required or customarily given under like circumstances. It is also specifically understood and agreed that I (or we and each of us) expressly consent that the time of payment of any indebtedness hereby secured may be extended, or that the Harsco may at any time require and accept other security of any nature whatsoever from Guarantor without notice to consent from me (or us or each of us). I (or we and each of us jointly and severally) agree to be held responsible for said obligations precisely as if the same had been contracted and due and owing by the undersigned or each of us in person. This Continuing Guaranty binds each of the signers hereto, jointly and severally, their respective heirs, executors, and administrators and shall extend to and cover all renewals of any claims or demands guaranteed under this instrument, or the extension of time of payment thereof, and shall remain in full force and effect from this date until revoked by the undersigned in writing to be sent by registered mail to the Vice President-Controller at P. O. Box 8316, City of Camp Hill, State of Pennsylvania 17001-8316, evidence of such mailing to be established by postal receipt. No addition, alteration, modification, novation or change in any of the terms or conditions of this Guaranty shall be binding upon the Harsco unless made in writing and signed by an authorized Vice President of Harsco. J~ , ~-IC-t 'k., f I . The obligation of Guarantor is a primary and unconditional obligation and shall not be affected in any manner by any change in the status of Customer or by any change from any cause whatsoever. This Guaranty shall not be revoked by the death or incapacity of any Guarantor but shall remain in full force and effect until terminated in a writing executed by Harsco and Guarantor. Guarantor hereby waives any defenses whatsoever which Guarantor and/or Customer may have with respect to any of the obligations or liabilities of Guarantor to Harsco under this Guaranty including, without limitation to the generality hereof, defenses arising out of estoppel, laches or any statute of limitations. It is the specific intention and agreement of the parties that this Agreement for any purpose be governed and interpreted solely by and under the laws of the Commonwealth of Pennsylvania in which jurisdiction the principal offices of Harsco Corporation are located. It is the specific intention and agreement of the parties that this Agreement be suitable for filing and confession of judgment in the event of a default hereunder. If any provisions of this Guaranty Agreement shall contravene or be invalid under the laws of the United States or any State, such contravention or invalidity shall not invalidate this Agreement or any other agreement which is part of this transaction, but shall be construed as not containing such provision, and the rights and obligations of the parties under this Guaranty Agreement shall be interpreted, construed and enforced accordingly. IN WITNESS WHEREOF, the parties have executed this Guaranty Agreement the day and year first above written. WITNESS: GUARANTOR ~) pl:\Q~oOO cJ~cliY\ ~sa E. Fisher lf2i~~ YJ. ;J~ ~~~-J(. A~ JJld VI 3~ Mark A. Fisher WITNESS: Harsco Corporation, Gas & Fluid Control Group ~~oiL~\= \ , 2 ~~ Personal Guaranty Contract GUARANTY AGREEMENT dated this 18th day of August 2003 for and in consideration of the extension of credit to DOL, Inc. dba Fisher LP Gas and/or his agents of Teresa E. Fisher and Mark A. Fisher (referred to hereinafter as the "Guarantor"), and other good and sufficient considerations to the undersigned accruing, I (or we, jointly and severally) hereby give this Continuing Guaranty to Harsco Corporation, Gas & Fluid Control Group (referred to hereinafter as the "Harsco"), for the payment in full, together with all interest, fees and charges of whatsoever nature and kind of any and all indebtedness of the Guarantor to the Harsco, whether an open account, credit card account, or evidenced by note, secured or unsecured, due and owing at the present time, or that may hereafter be due and owing by Guarantor to Harsco, and it is further agreed that if bills are not paid when due, I (or we or any of us) will personally pay the same upon notice and demand. It is agreed that this Continuing Guaranty applies to any extensions or renewals of credit given by Harsco to Guarantor. It is specifically understood and agreed that the Harsco shall not be required to exhaust its legal remedies for recovery and collection against the Guarantor before looking to the undersigned (or any of them) for payment of this account, but that if the account is not paid when due Harsco may, at once, notify the undersigned, and upon receipt of such notice that the said account is past due and unpaid, the undersigned assumes liability therefor and agrees to pay the same without delay or defalcation. The discharge of Guarantor in bankruptcy will not relieve the undersigned from liability with regard to any amount due and owing under this Continuing Guaranty. It is distinctly understood and agreed that Harsco may enter suit against the undersigned (or any one or more of the undersigned) for the recovery of the entire amount of said indebtedness hereby secured, and may recover judgment therefore against the undersigned (or anyone or more of said guarantors). It is also understood and agreed that in the event the Harsco commences such suit then and in that event I (or we and each of us) shall pay for the cost of suit and attorneys' fees and commissions for collection, in addition to the indebtedness hereby secured. It is further understood and agreed that the undersigned, each for himself. his heirs, executors, and administrators. does hereby waive the benefit of any and all state laws exempting real and/or personal property from levy and sale on execution, and agrees to the immediate issuance and levying of writs of execution upon his interests in any real estate of personal property and the subjugation thereof to sale for satisfaction of any such judgment or judgments. The undersigned hereby waives notice of the acceptance of this guaranty, notice of demand and maturity of payments to become due. notice of default in payment by the Guarantor and all such notices required or customarily given under like circumstances. It is also specifically understood and agreed that I (or we and each of us) expressly consent that the time of payment of any indebtedness hereby secured may be extended, or that the Harsco may at any time require and accept other security of any nature whatsoever from Guarantor without notice to consent from me (or us or each of us). I (or we and each of us jointly and severally) agree to be held responsible for said obligations precisely as if the same had been contracted and due and owing by the undersigned or each of us in person. This Continuing Guaranty binds each of the signers hereto, jointly and severally, their respective heirs, executors, and administrators and shall extend to and cover all renewals of any claims or demands guaranteed under this instrument, or the extension of time of payment thereof, and shall remain in full force and effect from this date until revoked by the undersigned in writing to be sent by registered mail to the Vice President-Controller at P. O. Box 8316, City of Camp Hill, State of Pennsylvania 17001-8316, evidence of such mailing to be established by postal receipt. No addition, alteration, modification, novation or change in any of the terms or conditions of this Guaranty shall be binding upon the Harsco unless made in writing and signed by an authorized Vice President of Harsco. 1 1M I' If ~~'1h 10,1 j The obligation of Guarantor is a primary and unconditional obligation and shall not be affected in any manner by any change in the status of Customer or by any change from any cause whatsoever. This Guaranty shall not be revoked by the death or incapacity of any Guarantor but shall remain in full force and effect until terminated in a writing executed by Harsco and Guarantor. Guarantor hereby waives any defenses whatsoever which Guarantor and/or Customer may have with respect to any of the obligations or liabilities of Guarantor to Harsco under this Guaranty including, without limitation to the generality hereof, defenses arising out of estoppel, laches or any statute of limitations. It is the specific intention and agreement of the parties that this Agreement for any purpose be governed and interpreted solely by and under the laws of the Commonwealth of Pennsylvania in which jurisdiction the principal offices of Harsco Corporation are located. It is the specific intention and agreement of the parties that this Agreement be suitable for filing and confession of judgment in the event of a default hereunder. If any provisions of this Guaranty Agreement shall contravene or be invalid under the laws of the United Slates or any Slate, such contravention or invalidity shall not invalidate this Agreement or any other agreement which is part of this transaction, but shall be construed as not containing such provision, and the rights and obligations of the parties under this Guaranty Agreement shall be interpreted. construed and enforced accordingly. IN WITNESS WHEREOF, the parties have executed this Guaranty Agreement the day and year first above written. WITNESS: GUARANTOR ~~~, ~LR~d /)-1 f),()", l{{)4a~ f--" lJ~ }fJL ?'}L-- Mark A. Fisher WITNESS: Harsco Corporation, Gas & Fluid Control Group ~~~~ ~kP~ <~ 2 " . . Personal Guaranty Contract GUARANTY AGREEMENT dated this 28th day of August, 2002 for and in consideration of the extension of credit 10 Fischer Bottle Gas and/or his agents of Mark Fischer (referred to hereinafter as the "Guarantor"), and other good and sufficient considerations to the undersigned accruing, I (or we, jointly and severally) hereby give this Continuing Guaranty to Harsco Corporation, Gas & Fluid Control Group (referred to hereinafter as the "Harsco"), for the payment in full, together with all interest, fees and charges of whatsoever nature and kind of any and all indebtedness of the Guarantor to the Harsco, whether an open account, credit card account, or evidenced by note, secured or unsecured, due and owing at the present time, or that may hereafter be due and owing by Guarantor to Harsco, and it is further agreed that if bills are not paid when due, I (or we or any of us) will personally pay the same upon notice and demand. It is agreed that this Continuing Guaranty applies to any extensions or renewals of credit given by Harsco to Guarantor. It is specifically understood and agreed that the Harsco shall not be required to exhaust its legal renf&dies' for recovery and collection against the Guaran!prf b~ore looking to the undersigned (or any of them) for payment of this account, butthat'i t e account is not paid when due Harsco may, at once, notify the undersigned, and upon receipt of such notice that the said account is past due and unpaid, the. undersigned assumes liability therefor and agrees to pay the same without delay or defalcation. The discharge of Guarantor in bankruptcy will not relieve the undersigned from liability with regard to any amount due and owing under this Continuing Guaranty. It is distinctly understood and agreed that Harsco may enter suit against the undersigned (or anyone or more of the undersigned) for the recovery of the entire amount of said indebtedness hereby secured, and may recover judgment therefore against the undersigned (or anyone or more of said guarantors). It is also understood and agreed that in the event the Harsco commences such suit then and in that event I (or we and each of us) shall pay for the cost of suit and attorneys' fees and commissions for collection, in addition to the indebtedness hereby secured. It is further understood and agreed that the undersigned, each for himself, his heirs, executors. and administrators, does hereby waive the benefit of any and all state laws exempting real and/or personal property from levy and sale on execution, and agrees to the immediate issuance and levying of writs of execution upon his interests in any real estate of personal property and the subjugation thereof to sale for satisfaction of any such judgment or judgments. The undersigned hereby waives notice of the acceptance of this guaranty, notice of demand and maturity of payments to become due, notice of default in payment by the Guarantor and all such notices required or customarily given under like circumstances. It is aiso specifically understood and agreed that I (or we and each of us) expressly consent that the time of payment of any indebtedness hereby secured may be extended, or that the Harsco may at any time require and accept other security of any nature whatsoever from Guarantor without notice to consent from me (or us or each of us). I (or we and each of us jointly and severally) agree to be held responsible for said obligations precisely as if the same had been contracted and due and owing by the undersigned or each of us in person. This Continuir")9 Guaranty binds each of the signers hereto, jointly and severally, their respective heirs, executors, and administrators and shall extend to and cover all renewals of any claims or demands guaranteed under this instrument, or the extension of time of payment thereof, and shall remain in full force and effect from this date until revoked by the undersigned in writing to be sent by registered mail to the Vice President-Controller at P. O. Box 8316, City of Camp Hill, State of Pennsylvania 17001-8316, evidence of such mailing to be f -I hJ,,1 "k" " . . established by postal receipt. No addition, alteration, modification, novation or change in any of the terms or conditions of this Guaranty shall be binding upon the Harsco unless made in writing and signed by an authorized Vice President of Harsco. The obligation of Guarantor is a primary and unconditional obligation and shall not be affected in any manner by any change in the status of Customer or by any change from any cause whatsoever. This Guaranty shall not be revoked by the death or incapacity of any Guarantor but shall remain in full force and effect untiltenninated in a writing executed by Harsco and Guarantor. Guarantor hereby waives any defenses whatsoever which Guarantor and/or Customer may have with respect to any of the obligations or liabilities of Guarantor to Harsco under this Guaranty including, without limitation to the generality hereof, defenses arising out of estoppel, laches or any statute of limitations. It is the specific intention and agreement of the parties that this Agreement for any purpose be governed and interpreted solely by and under the laws of the Commonwealth of Pennsylvania in which jurisdiction the principal offices of Harsco Corporation are located. It is the specific intention and agreement of the parties that this Agreement be suitable for filing and confession of judgment in the event of a default hereunder. If any provisions of this Guaranty Agreement shall contravene or be invalid under the laws of the United States or any State, such contravention or invalidity shall not invalidate this Agreement or any 'otller agleem"ent which is part of this transaction, but shall be ~~I)e~ued as not containing such provision, and the rights and obligations of the parties under. IS uaranty Agreement shall be interpreted, construed and enforced accordingiy. IN WITNESS WHEREOF, the parties have executed this Guaranty Agreement the day and year first above written. W~T~SS: 0 ct~ Q" /JcruI- J (J I':':' A An te- 'i:-K (Name and address) GUARANTOR I/f~ ~-t~ /I11fr2'r:... p.., h~~/u.r (Name) WITNESS: Harsco Corporation. Gas & Fluid Control Group ~ CO '- '+;L<-I,-/ duJ:::- .' . . Personal Guaranty Contract GUARANTY AGREEMENT dated this 28th day of August, 2002 for and in consideration of the extension of credit to Fischer Bottle Gas and/or his agents of Mark Fischer (referred to hereinafter as the "Guarantor"). and other good and sufficient considerations to the undersigned accruing, I (or we, jointly and severally) hereby give this Continuing Guaranty to Harsco Corporation, Gas & Fluid Control Group (referred to hereinafter as the "Harsco"), for the payment in full. together with all interest, fees and charges of whatsoever nature and kind of any and all indebtedness of the Guarantor to the Harsco, whether an open account, credit card account, or evidenced by note, secured or unsecured, due and owing at the present time, or that may hereafter be due and owing by Guarantor to Harsco, and it is further agreed that if bills are not paid when due, I (or we or any of us) will personally pay the same upon notice and demand. It is agreed that this Continuing Guaranty applies to any extensions or renewals of credit given by Harsco to Guarantor. It is specifically understood and agreed that the Harsco shall not be required to exhaust its leg81 remedies' for recovery and collection against the Guarantor bi/ore looking to the undersigned (or any of them) for payment of this account, but that'if the account is not paid when due Harsco may, at once, notify the undersigned, and upon receipt of such notice that the said account is past due and unpaid, the undersigned assumes liability therefor and agrees to pay the same without delay or defalcation. The discharge of Guarantor in bankruptcy will not relieve the undersigned from liability with regard to any amount due and owing under this Continuing Guaranty. It is distinctly understood and agreed that Harsco may enter suit against the undersigned (or anyone or more of the undersigned) for the recovery of the entire amount of said indebtedness hereby secured, and may recover judgment therefore against the undersigned (or anyone or more of said guarantors). It is also understood and agreed that in the event the Harsco commences such suit then and in that event I (or we and each of us) shall pay for the cost of suit and attorneys' fees and commissions for collection, in addition to the indebtedness hereby secured. It is further understood and agreed that the undersigned, each for himseif, his heirs, executors, and administrators, does hereby waive the benefit of any and all state laws exempting real and/or personal property from levy and sale on execution, and agrees to the immediate issuance and levying of writs of execution upon his interests in any real estate of personal property and the subjugation thereof to sale for satisfaction of any such judgment or judgments. The undersigned hereby waives notice of the acceptance of this guaranty, notice of demand and maturity of payments to become due, notice of default in payment by the Guarantor and all such notices required or customarily given under like circumstances. It is also specifically understood and agreed that I (or we and each of us) expressly consent that the time of payment of any indebtedness hereby secured may be extended, or that the Harsco may at any time require and accept other security of any nature whatsoever from Guarantor without notice to consent from me (or us or each of us). I (or we and each of us jointly and severally) agree to be held responsible for said obligations precisely as if the same had been contracted and due and owing by the undersigned or each of us in person. This Continuing Guaranty binds each of the signers hereto, jointly and severally, their respective heirs, executors, and administrators and shall extend to and cover all renewals of any claims or demands guaranteed under this instrument, or the extension of time of payment thereof, and shall remain in full force and effect from this date until revoked by the undersigned in writing to be sent by registered mail to the Vice President-Controller at P. O. Box 8316, City of Camp Hill, State of Pennsylvania 17001-8316, evidence of such mailing to be .f-J~'bJ L I, .. " v established by postal receipt. No addition, alteration, modification, novation or change in any of the terms or conditions of this Guaranty shall be binding upon the Harsco unless made in writing and signed by an authorized Vice President of Harsco. The obligation of Guarantor is a primary and unconditional obligation and shall not be affected in any manner by any change in the status of Customer or by any change from any cause whatsoever. This Guaranty shall not be revoked by the death or incapacity of any Guarantor but shall remain in full force and effect until terminated in a writing executed by Harsco and Guarantor. Guarantor hereby waives any defenses whatsoever which Guarantor and/or Customer may have with respect to any of the obligations or liabilities of Guarantor to Harsco under this Guaranty including, without limitation to the generality hereof, defenses arising out of estoppel, laches or any statute of limitations. It is the specific intention and agreement of the parties that this Agreement for any purpose be governed and interpreted solely by and under the laws of the Commonwealth of Pennsylvania in which jurisdiction the principal offices of Harsco Corporation are located. It is the specific intention and agreement of the parties that this Agreement be suitable for filing and confession of judgment in the event of a default hereunder. If any provisions of this Guaranty Agreement shall contravene or be invalid under the laws of the United States or any State. such contravention or invalidity shall not invalidate this Agreement or any oll'ier ag'reem'ent which is part of this transaction, but shall be con.li~rued as not containing such provision, and the rights and obligations of the parties under 1hls uaranty Agreement shall be interpreted, construed and enforced accordingly. IN WITNESS WHEREOF, the parties have executed this Guaranty Agreement the day and year first above written. JP~Sfl. !J~ Lv IS A. SQl1:.FX (Name and address) GUARANTOR JIt~~ 3~ :mv-L c; J~ (Name) WITNESS: .. ~~ Personal Guaranty Contract GUARANTY AGREEMENT dated this 28th day of August. 2002 for and in consideration of the extension of credit to Fischer Bottle Gas and/or his agents of Mark Fischer (referred to hereinafter as the "Guarantor"), and other good and sufficient considerations to the undersigned accruing. I (or we, jointly and severally) hereby give this Continuing Guaranty to Harsco Corporation, Gas & Fluid Control Group (referred to hereinafter as the "Harsco"), for the payment in full, together with all interest. fees and charges of whatsoever nature and kind of any and all indebtedness of the Guarantor to the Harsco, whether an open account, credit card account, or evidenced by note, secured or unsecured, due and owing at the present time. or that may hereafter be due and owing by Guarantor to Harsco, and it is further agreed that if bills are not paid when due, I (or we or any of us) will personally pay the same upon notice and demand. It is agreed that this Continuing Guaranty applies to any extensions or renewals of credit given by Harsco to Guarantor, It is specifically understood and agreed that the Harsco shall not be required to exhaust its legal remedies for recovery and collection against the Guarantor b.llfore looking to the undersigned (or any of them) for payment of this account, but that if the account is not paid when due Harsco may. at once, notify the undersigned, and upon receipt of such notice that the said account is past due and unpaid. the undersigned assumes liability therefor and agrees to pay the same without delay or defalcation. The discharge of Guarantor in bankruptcy will not relieve the undersigned from liability with regard to any amount due and owing under this Continuing Guaranty. It is distinctly understood and agreed that Harsco may enter suit against the undersigned (or anyone or more of the undersigned) for the recovery of the entire amount of said indebtedness hereby secured, and may recover judgment therefore against the undersigned (or anyone or more of said guarantors). It is also understood and agreed that in the event the Harsco commences such suit then and in that event I (or we and each of us) shall pay for the cost of suit and attorneys' fees and commissions for collection, in addition to the indebtedness hereby secured. It is further understood and agreed that the undersigned, each for himself, his heirs. executors. and administrators. does hereby waive the benefit of any and all state laws exempting real and/or personal property from levy and sale on execution, and agrees to the immediate issuance and levying of writs of execution upon his interests in any real estate of personal property and the subjugation thereof to sale for satisfaction of any such judgment or judgments. The undersigned hereby waives notice of the acceptance of this guaranty, notice of demand and maturity of payments to become due, notice of default in payment by the Guarantor and all such notices required or customarily given under like circumstances. It is also specifically understood and agreed that I (or we and each of us) expressly consent that the time of payment of any indebtedness hereby secured may be extended, or that the Harsco may at any time require and accept other security of any nature whatsoever from Guarantor without notice to consent from me (or us or each of us). I (or we and each of us jointly and severally) agree to be held responsible for said obligations precisely as if the same had been contracted and due and owing by the undersigned or each of us in person. This Continuing Guaranty binds each of the signers hereto. jointly and severally, their respective heirs. executors, and administrators and shall extend to and cover all renewals of any claims or demands guaranteed under this instrument, or the extension of time of payment thereof, and shall remain in full force and effect from this date until revoked by the undersigned in writing to be sent by registered mail to the Vice President-Controller at P. O. Box 8316, City of Camp Hill, State of Pennsylvania 17001-8316. evidence of such mailing to be f-/{1, brt '. M" " established by postal receipt. No addition, alteration, modification, novation or change in any of the terms or conditions of this Guaranty shall be binding upon the Harsco unless made in writing and signed by an authorized Vice President of Harsco. The obligation of Guarantor is a primary and unconditional obligation and shall not be affected in any manner by any change in the status of Customer or by any change from any cause whatsoever. This Guaranty shall not be revoked by the death or incapacity of any Guarantor but shall remain in full force and effect unlilterminated in a writing executed by Harsco and Guarantor. Guarantor hereby waives any defenses whatsoever which Guarantor and/or Customer may have with respect to any of the obligations or liabilities of Guarantor to Harsco under this Guaranty including, wilhoutlimitation to the generality hereof, defenses arising out of estoppel, laches or any statute of limitations. It is the specific intention and agreement of the parties that this Agreement for any purpose be governed and interpreted solely by and under the laws of the Commonwealth of Pennsylvania in which jurisdiction the principal offices of Harsco Corporation are located. It is the specific intention and agreement of the parties that this Agreement be suitable for filing and confession of judgment in the event of a default hereunder. If any provisions of this Guaranty Agreement shall contravene or be invalid under the laws of the United States or any State, such contravention or invalidity shall not invalidate this Agreement or any -otAer agreement which is part of this transaction, but shall be construed as not containing such provision. and the rights and obligations of the parties undeI'"1hi5"Guaranty Agreement shall be interpreted, construed and enforced accordingly. IN WITNESS WHEREOF, the parties have executed this Guaranty Agreement the day and year first above written. WI\N~S~: . ~ ~1 Ii rJ~L Ln I S l !;;/2 U( (Name and address) GUARANTOR )11~?17~ jJ111i2k.. r+- hsC/~ (Name) '0" /-A- ~ Harsco Corporation, Gas & Fluid ~' Group ~~.I'- ~ WITNESS: Personal Guaranty Contract GUARANTY AGREEMENT dated this 10th day of September, 2002 for and in consideration of the extension of credit to Fischer Bottle Gas and/or his agents of Mark A. Fischer (referred to hereinafter as the "Guarantor"), and other good and sufficient considerations to the undersigned accruing, I (or we, jointly and severally) hereby give this Continuing Guaranty to Harsco Corporation, Gas & Fluid Control Group (referred to hereinafter as the "Harsco"), for the payment in full, together with all interest, fees and charges of whatsoever nature and kind of any and all indebtedness of the Guarantor to the Harsco, whether an open account, credit card account, or evidenced by note, secured or unsecured, due and owing at the present time, or that may hereafter be due and owing by Guarantor to Harsco, and it is further agreed that if bills are not paid when due, I (or we or any of us) will personally pay the same upon notice and demand. It is agreed that this Continuing Guaranty applies to any extensions or renewals of credit given by Harsco to Guarantor. It is specifically understood and agreed that the Harsco shall not be required to exhaust its legal remedies for recovery and collection against the Guarantor before looking to the undersigned (or any of them) for payment of this account, but that if the account is not paid when due Harsco may. at once, notify the undersigned, and upon receipt of such notice that the said account is past due and unpaid, the undersigned assumes liability therefor and agrees to pay the same without delay or defalcation. The discharge of Guarantor in bankruptcy will not relieve the undersigned from liability with regard to any amount due and owing under this Continuing Guaranty. It is distinctly understood and agreed that Harsco may enter suit against the undersigned (or anyone or more of the undersigned) for the recovery of the entire amount of said indebtedness hereby secured, and may recover judgment therefore against the undersigned (or anyone or more of said guarantors). It is also understood and agreed that in the event the Harsco commences such suit then and in that event I (or we and each of us) shall pay for the cost of suit and attorneys' fees and commissions for collection, in addition to the indebtedness hereby secured. It is further understood and agreed that the undersigned, each for himself, his heirs, executors, and administrators, does hereby waive the benefit of any and all state laws exempting real and/or personal property from levy and sale on execution, and agrees to the immediate issuance and levying of writs of execution upon his interests in any real estate of personal property and the subjugation thereof to sale for satisfaction of any such judgment or judgments. The undersigned hereby waives notice of the acceptance of this guaranty, notice of demand and maturity of payments to become due, notice of default in payment by the Guarantor and all such notices required or customarily given under like circumstances. It is also specifically understood and agreed that I (or we and each of us) expressly consent that the time of payment of any indebtedness hereby secured may be extended, or that the Harsco may at any time require and accept other security of any nature whatsoever from Guarantor without notice to consent from me (or us or each of us). I (or we and each of us jointly and severally) agree to be held responsible for said obligations precisely as if the same had been contracted and due and owing by the undersigned or each of us in person. This Continuing Guaranty binds each of the signers hereto, jointly and severally, their respective heirs. executors. and administrators and shall extend to and cover all renewals of any claims or demands guaranteed under this instrument, or the extension of time of payment thereof, and shall remain in full force and effect from this date until revoked by the undersigned in writing to be sent by registered mail to the Vice President-Controller at P. O. Box 8316, City of Camp Hill, State of Pennsylvania 17001-8316, evidence of such mailing tobe f -.lh\ brl if Nfl established by postal receipt. No addition, alteration, modification, novation or change in any of the terms or conditions of this Guaranty shall be binding upon the Harsco unless made in writing and signed by an authorized Vice President of Harsco. The obligation of Guarantor is a primary and unconditional obligation and shall not be affected in any manner by any change in the status of Customer or by any change from any cause whatsoever. This Guaranty shall not be revoked by the death or incapacity of any Guarantor but shall remain in full force and effect until terminated in a writing executed by Harsco and Guarantor. Guarantor hereby waives any defenses whatsoever which Guarantor and/or Customer may have with respect to any of the obligations or liabilities of Guarantor to Harsco under this Guaranty including, without limitation to the generality hereof, defenses arising out of estoppel, laches or any statute of limitations. It is the specific intention and agreement of the parties that this Agreement for any purpose be governed and interpreted solely by and under the laws of the Commonwealth of Pennsylvania in which jurisdiction the principal offices of Harsco Corporation are located. It is the specific intention and agreement of the parties that this Agreement be suitable for filing and confession of judgment in the event of a default hereunder. If any provisions of this Guaranty Agreement shall contravene or be invalid under the laws of the United States or any State, such contravention or invalidity shall not invalidate this Agreement or any other agreement which is part of this transaction, but shall be construed as not containing such provision, and the rights and obligations of the parties under this Guaranty Agreement shall be interpreted, construed and enforced accordingly. IN WITNESS WHEREOF, the parties have executed this Guaranty Agreement the day and year first above written. WITNESS: () _ n ~-- R-~ Pet..+f'/ e I "'- R, Pr{ -e.s -j- (Name and address) GUARANTOR Jll~rk~ 2S-- JIt.vi C1 ~ (Name) WITNESS: Harsco Corporation, Ga\C'luid Control Group (f _r::!;J ~- - ~ 41-uS- Personal Guaranty Contract GUARANTY AGREEMENT dated this 10th day of September, 2002 for and in consideration of the extension of credit to Fischer Bottle Gas and/or his agents of Mark A. Fischer (referred to hereinafter as the "Guarantor"), and other good and sufficient considerations to the undersigned accruing, I (or we, jointly and severally) hereby give this Continuing Guaranty to Harsco Corporation, Gas & Fluid Control Group (referred to hereinafter as the "Harsco"), for the payment in full. together with all interest, fees and charges of whatsoever nature and kind of any and all indebtedness of the Guarantor to the Harsco, whether an open account, credit card account, or evidenced by note, secured or unsecured, due and owing at the present time, or that may hereafter be due and owing by Guarantor to Harsco, and it is further agreed that if bills are not paid when due, I (or we or any of us) will personally pay the same upon notice and demand. It is agreed that this Continuing Guaranty applies to any extensions or renewals of credit given by Harsco to Guarantor. It is specifically understood and agreed that the Harsco shall not be required to exhaust its legal remedies for recovery and collection against the Guarantor before looking to the undersigned (or any of them) for payment of this account, but that if the account is not paid when due Harsco may, at once, notify the undersigned, and upon receipt of such notice that the said account is past due and unpaid, the undersigned assumes liability therefor and agrees to pay the same without delay or defalcation. The discharge of Guarantor in bankruptcy will not relieve the undersigned from liability with regard to any amount due and owing under this Continuing Guaranty. It is distinctly understood and agreed that Harsco may enter suit against the undersigned (or anyone or more of the undersigned) for the recovery of the entire amount of said indebtedness hereby secured, and may recover judgment therefore against the undersigned (or anyone or more of said guarantors). It is also understood and agreed that in the event the Harsco commences such suit then and in that event I (or we and each of us) shall pay for the cost of suit and attorneys' fees and commissions for collection, in addition to the indebtedness hereby secured. It is further understood and agreed that the undersigned, each for himself, his heirs, executors, and administrators, does hereby waive the benefit of any and all state laws exempting real and/or personal property from levy and sale on execution, and agrees to the immediate issuance and levying of writs of execution upon his interests in any real estate of personal property and the subjugation thereof to sale for satisfaction of any such judgment or judgments. The undersigned hereby waives notice of the acceptance of this guaranty, notice of demand and maturity of payments to become due, notice of default in payment by the Guarantor and all such notices required or customarily given under like circumstances. It is also specifically understood and agreed that I (or we and each of us) expressly consent that the time of payment of any indebtedness hereby secured may be extended, or that the Harsco may at any time require and accept other security of any nature whatsoever from Guarantor without notice to consent from me (or us or each of us). I (or we and each of us jointly and severally) agree to be held responsible for said obligations precisely as if the same had been contracted and due and owing by the undersigned or each of us in person. This Continuing Guaranty binds each of the signers hereto, jointly and severally, their respective heirs, executors, and administrators and shall extend to and cover all renewals of any claims or demands guaranteed under this instrument, or the extension of time of payment thereof, and shall remain in full force and effect from this date until revoked by the undersigned in writing to be sent by registered mail to the Vice President-Controller at P. O. Box 8316, City of Camp Hill, State of Pennsylvania 17001-8316, evidence of such mailing to be L~(b,l <. , 0' j established by postal receipt. No addition, alteration, modification, novation or change in any of the terms or conditions of this Guaranty shall be binding upon the Harsco unless made in writing and signed by an authorized Vice President of Harsco. The obligation of Guarantor is a primary and unconditional obligation and shall not be affected in any manner by any change in the status of Customer or by any change from any cause whatsoever. This Guaranty shall not be revoked by the death or incapacity of any Guarantor but shall remain in full force and effect until terminated in a writing executed by Harsco and Guarantor. Guarantor hereby waives any defenses whatsoever which Guarantor and/or Customer may have with respect to any of the obligations or liabilities of Guarantor to Harsco under this Guaranty including, without limitation to the generality hereof, defenses arising out of estoppel, laches or any statute of limitations. It is the specific intention and agreement of the parties that this Agreement for any purpose be governed and interpreted solely by and under the laws of the Commonwealth of Pennsylvania in which jurisdiction the principal offices of Harsco Corporation are located. It is the specific intention and agreement of the parties that this Agreement be suitable for filing and confessiolJ of judgment in the event of a default hereunder. If any provisions of this Guaranty Agreement shall contravene or be invalid under the laws of the United States or any State, such contravention or invalidity shall not invalidate this Agreement or any other agreement which is part of this transaction, but shall be construed as not containing such provision, and the rights and obligations of the parties under this Guaranty Agreement shall be interpreted, construed and enforced accordingly. IN WITNESS WHEREOF, the parties have executed this Guaranty Agreement the day and year first above written. WITNHS: () ~ '-f~ /? t:'l-d Rtr/( ,'''-- l2. fr.'-e<;+ (Name and address) GUARANTOR 7h~ C; rL- Mark A. Fischer ;JJ #r2.IL fi- hlc.-h4" (Name) WITNESS: Harsco Corporation, GV"R5 G~", ~~ Personal Guaranty Contract GUARANTY AGREEMENT dated this 10th day of September, 2002 for and in consideration of the extension of credit to Fischer Bottle Gas and/or his agents of Mark A. Fischer (referred to hereinafter as the "Guarantor'), and other good and sufficient considerations to the undersigned accruing, I (or we, jointly and severally) hereby give this Continuing Guaranty to Harsco Corporation, Gas & Fluid Control Group (referred to hereinafter as the "Harsco"), for the payment in full, together with all interest, fees and charges of whatsoever nature and kind of any and all indebtedness of the Guarantor to the Harsco, whether an open account, credit card account, or evidenced by note, secured or unsecured, due and owing at the present time, or that may hereafter be due and owing by Guarantor to Harsco, and it is further agreed that if bills are not paid when due, I (or we or any of us) will personally pay the same upon notice and demand. It is agreed that this Continuing Guaranty applies to any extensions or renewals of credit given by Harsco to Guarantor. It is specifically understood and agreed that the Harsco shall not be required to exhaust its legal remedies for recovery and collection against the Guarantor before looking to the undersigned (or any of them) for payment of this account, but that if the account is not paid when due Harsco may, at once, notify the undersigned, and upon receipt of such notice that the said account is past due and unpaid, the undersigned assumes liability therefor and agrees to pay the same without delay or defalcation. The discharge of Guarantor in bankruptcy will not relieve the undersigned from liability with regard to any amount due and owing under this Continuing Guaranty. It is distinctly understood and agreed that Harsco may enter suit against the undersigned (or anyone or more of the undersigned) for the recovery of the entire amount of said indebtedness hereby secured, and may recover judgment therefore against the undersigned (or anyone or more of said guarantors). It is also understood and agreed that in the event the Harsco commences such suit then and in that event I (or we and each of us) shall pay for the cost of suit and attorneys' fees and commissions for collection, in addition to the indebtedness hereby secured. It is further understood and agreed that the undersigned, each for himself, his heirs, executors. and administrators, does hereby waive the benefit of any and all state laws exempting real and/or personal property from levy and .sale on execution, and agrees to the immediate issuance and levying of writs of execution upon his interests in any real estate of personal property and the subjugation thereof to sale for satisfaction of any such judgment or judgments. The undersigned hereby waives notice of the acceptance of this guaranty, notice of demand and maturity of payments to become due, notice of default in payment by the Guarantor and all such notices required or customarily given under like circumstances. It is also specifically understood and agreed that I (or we and each of us) expressly consent that the time of payment of any indebtedness hereby secured may be extended, or that the Harsco may at any time require and accept other security of any nature whatsoever from Guarantor without notice to consent from me (or us or each of us). I (or we and each of us jointly and severally) agree to be held responsible for said obligations precisely as if the same had been contracted and due and owing by the undersigned or each of us in person. This Continuing Guaranty binds each of the signers hereto, jointly and severally, their respective heirs, executors, and administrators and shall extend to and cover all renewals of any claims or demands guaranteed under this instrument, or the extension of time of payment thereof, and shall remain in full force and effect from this date until revoked by the undersigned in writing to be sent by registered mail to the Vice President-Controller at P.O. Box 8316, City of Camp Hill, State of Pennsylvania 17001-8316, evidence of such mailing to be f ~ ~ I Co ,1 '( p '. , . established by postal receipt. No addition, alteration, modification, novation or change in any of the terms or conditions of this Guaranty shall be binding upon the Harsco unless made in writing and signed by an authorized Vice President of Harsco. The obligation of Guarantor is a primary and unconditional obligation and shall not be affected in any manner by any change in the status of Customer or by any change from any cause whatsoever. This Guaranty shall not be revoked by the death or incapacity of any Guarantor but shall remain in full force and effect until terminated in a writing executed by Harsco and Guarantor. Guarantor hereby waives any defenses whatsoever which Guarantor and/or Customer may have with respect to any of the obligations or liabilities of Guarantor to Harsco under this Guaranty including, without limitation to the generality hereof, defenses arising out of estoppel, laches or any statute of limitations. It is the specific intention and agreement of the parties that this Agreement for any purpose be governed and interpreted solely by and under the laws of the Commonwealth of Pennsylvania in which jurisdiction the prinCipal offices of Harsco Corporation are located. It is the specific intention and agreement of the parties that this Agreement be suitable for filing and confession of judgment in the event of a default hereunder. If any provisions of this Guaranty Agreement shall contravene or be invalid under the laws of the United States or any State, such contravention or invalidity shall not invalidate this Agreement or any other agreement which is part of this transaction, but shall be construed as not containing such provision, and the rights and obligations of the parties under this Guaranty Agreement shall be interpreted, construed and enforced accordingly. IN WITNESS WHEREOF, the parties have executed this Guaranty Agreement the day and year first above written. qJJ~~~~ D",tn'i't'A.. f!-, Pd~~t- /Name and address) GUARANtOR ?JtL t:1p~ Mark A. Fischer - /fI~ fI hic.l-.~ (Name) WITNESS: ~~~ Harsco Corporation, Ga & Flui ntral Group . -lQ.. '7"' (J lI) 11 ~ lrt .... l:, 0 Vt ~ _ J ~ ..() ""C/ ~...() ~ ~ J:- f"--.) () (-"; ;~::; ""n .4,- ~--t ~J~. J1. f'i1r= :"11 'T' I;-:;~ G r_,' o -~'! :) r, rn (2 r', ~