HomeMy WebLinkAbout04-5958
HOURIGAN, KLUGER & QUINN
A PROFESSIONAL CORPORATION
BY: James T. Shoemaker, Esquire
IDENTIFICATION NO. 63871
LAW OFFICES
600 THIRD AVENUE
KINGSTON, PA 18704
(570) 287-3000
ATTORNEY FOR PLAINTIFF
MELLON BANK, N.A., now by assignment
CITIZENS BANK OF PENNSYL VANIA
8 West Market S 1.
Wilkes-Barre, PA 18701,
IN THE COURT OF COMMON PLEAS
OF CUMBERLAND COUNTY
Plaintiff
vs.
CIVIL ACTION -- LAW
REPLEVIN
SANG HO KW AK, Individually and d/b/a
Young's Food Market, and YONHWAKWAK:
2208 Chatham Way
Harrisburg, PA 17110,
Defendants
NO.OY --~5f
LLU'll~~
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
are served by entering a written appearance personally or by attorney and filing in writing with the
Court your defenses or objections to the claims set forth against you. You are warned that if you fail
to do so the case may proceed without you and a judgment may be entered against you by the Court
637973.1
without further notice for any money claimed in the Complaint or for any other claim or relief
requested by the Plaintiff. You may lose money or property or other rights important to you.
YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO
NOT HAVE A LAWYER, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW.
THIS OFFICE CAN PROVIDE YOU WITH INFORMATION ABOUT HIRING A
LAWYER.
IF YOU CANNOT AFFORD TO HIRE A LAWYER, THIS OFFICE MAY BE ABLE
TO PROVIDE YOU WITH INFORMATION ABOUT AGENCIES THA T MAY OFFER
LEGAL SERVICES TO ELIGmLE PERSONS AT A REDUCED FEE OR NO FEE.
COURT ADMINISTRATOR
Cumberland County Court House
Carlisle, PA 17013
(717) 249-1133
-or-
PENNSYLVANIA LAWYERS REFERRAL SERVICE
P.O. Box 1086, 100 South Street
Harrisburg, P A 17108
(pennsylvania residents phone:
1-800-692-7375; out-of-state
residents phone: 1-717-238-6715)
HOURIGAN, KLUGER & QUINN, P.C.
BY: "-
James T. Shoemaker, Esquire
Counsel for the plaintiff, Mellon Bank, N.A.,
now by assignment, Citizens Bank of
Pennsylvania
637973.1
HOURIGAN, KLUGER & QUINN
A PROFESSIONAL CORPORATION
ALLAN M. KLUGER
RICHARD M. GOLDBERG
JOSE PH A. LACH
RONALD V. SANTORA
JOSEPH E. KLUGER
JAMES T. SHOEMAKER
MICHAEL J. KOWALSKI
RICHARD M. WILLIAMS
JENNIFER L. ROGERS L1TTzr'
JOSEPH A. QUINN. JR
ARTHUR L. PICCONE
RICHARD S. BISHOP
DANIEL J. DISTASIO
DONALD C. L1GORIO
MICHELLE M. OUINN
DAVID AIKENS. JR.
AMANDA V. WRIGHT-KLUGER
MICHAEL A LOMBARDO III
LAW OFFICES
SUITE TWO HUNDRED
434 LACKAWANNA AVENUE
SCRANTON. PA t 8503-20 14
(570) 346.84 t 4
FACSIMILE (570) 961-5072
600 THIRD AVENUE
KINGSTON, PA 18704-5815
(570) 287-3000
FACSI MILE (570) 287-8005
E-MAIL: hkq@hkqpc.com
OF COUNSEL
ROBERT C CORDARO
ANDREW HOURIGAN, JR
1948~'978
Ext. 1126
Direct e-mail: ishoemaker(Q)hkQPC.com
'ALSO MEMBER NJ BAR
November 23, 2004
Sang Ho K wak, Individually
and d/b/a Young's Food Market
2208 Chatham Way
Harrisburg, P A 17110
Property Address:
Account No.:
Young's Food Market, RD 3 Box 672 Newville, PA 17241
0805386-0101
IMPORTANT NOTICE
THIS NOTICE IS SENT TO YOU IN AN ATTEMPT TO COLLECT A DEBT AND ANY
INFORMATION OBTAINED FROM YOU WILL BE USED FOR THAT PURPOSE.
UNLESS YOU, WITHIN THIRTY (30) DAYS OF RECEIPT OF THIS NOTICE, DISPUTE THE
VALIDITY OF THE DEBT, IT WILL BE ASSUMED TO BE VALID.
IF YOU NOTIFY THIS OFFICE IN WRITING WITHIN THIRTY (30) DAYS THAT THIS
DEBT, OR ANY PORTION THEREOF IS DISPUTED, WE WILL OBTAIN AND FORWARD
TO YOU A VERIFICATION OF THE DEBT OR THE JUDGMENT AGAINST YOU. WE
WILL ALSO PROVIDE, UPON WRITTEN REQUEST WITHIN THIRTY (30) DAYS OF THE
DATE OF THIS NOTICE, THE NAME AND ADDRESS OF THE ORIGINAL CREDITOR, IF
DIFFERENT FROM THE CURRENT CREDITOR.
- V~truly yours, .'
- . "--'-~
"--!~es T. Shoemaker, Esquire
ITS :je
THIS NOTICE DOES NOT SUPERCEDE YOUR OBLIGATIONS UNDER THE FOREGOING
NOTICE TO PLEAD
638028.2
HOURIGAN, KLUGER & QUINN
A PROFESSIONAL CORPORATION
BY: James T. Shoemaker, Esquire
IDENTIFICATION NO. 63871
LAW OFFICES
600 THIRD AVENUE
KINGSTON, PA 18704
(570) 287-3000
MELLON BANK, N.A., now by assignment
CITIZENS BANK OF PENNSYLVANIA
8 West Market St.
Wilkes-Barre, PA 18701,
ATTORNEY FOR PLAINTIFF
IN THE COURT OF COMMON PLEAS
OF CUMBERLAND COUNTY
Plaintiff
vs.
CNILACTION --LAW
REPLEVIN
SANG HO KW AK, Individually and d/b/a
Young's Food Market, and YON HWA KWAK:
2208 Chatham Way
Harrisburg, PA 17110,
Defendants
NO. Oy - S9SR
c~U\ tTUJ;
COMPLAINT
The plaintiff, Mellon Bank, N.A., now by assignment, Citizens Bank of Pennsylvania (the
"Bank"), by and through its counsel, Hourigan, Kluger & Quinn, P.c., complains of the defendant, Sang
Ho Kwak, Individually and d/b/a Young's Food Market ("Mr. Kwak"), R.D. 3, Box 672, Newville, PA
17241, as follows:
638018]
1. The Bank is a Pennsylvania state chartered bank conducting business in the
Commonwealth of Pennsylvania, having an office located at 8 West Market Street, Wilkes-Barre, PA
18711-0101.
2. Mr. Kwak is an adult individual with a last known address of2208 Chatham Way,
Harrisburg, P A 17110.
3. Upon information and belief, Yon Hwa Kwak is deceased.
4. On or about May 28, 1999, the Bank made a loan to Mr. Kwak, individually and
d/b/a Say-Ford Supermarket and Yon Hwa Kwak (jointly, the "Kwaks"), in the amount of
$395,000.00, as evidenced by a note, disclosure and security agreement (the "Note"). (A true and
correct copy ofthe Note is attached hereto as Exhibit "A" and incorporated herein by reference.)
5. In order to induce the Bank to make the aforesaid loan, Mr. K wak granted the
Bank a security interest in , among other things, his equipment, machinery, motor vehicles,
furniture, fixtures, inventory, accounts and contract rights (collectively, the "Collateral"), as
evidenced by a security agreement (the "Security Agreement") and as protected by certain UCC-l
financial statements (the "UCC-l Financial Statements"). (A true and correct copy of the
Security Agreement and the UCC-l Financial Statements is attached hereto as Exhibit "B" and
incorporated herein by reference.)
6. The Note was not assigned, except as stated above.
7. Mr. Kwak defaulted under the terms ofthe Note by failing to make monthly
payments of principal and interest due under the Note.
638018.1
2
8. The fair market value of the Collateral is unknown, but is believed to be less
than the amount due and owing the Bank by the Kwaks under the Note.
9. The Bank believes and therefore avers that Mr. Kwak has possession ofthe
Collateral.
10. Mr. Kwak has failed and refused, despite repeated demands by the Bank, to pay
the balance due under the Note or to deliver possession of the Collateral to the Bank.
11. The balance of the Note as of October 26,2004 was $320,245.20, consisting of
principal in the amount of$311,149.22, accrued interest in the amount of$8,512.74, and late
charges in the amount of$583.24, exclusive ofattomeys' fees and costs.
WHEREFORE, the Bank demands judgment in replevin in favor of the Bank and against
the Kwaks in the amount of $320,245.20, plus interest from October 26,2004, attorneys' fees
and costs, and requests this Court to enter an Order directing the Prothonotary to issue a writ of
possession to the Sheriff directing the Sheriff to seize the Collateral.
Respectfully submitted,
HOURIGAN, KLUGER & QUINN, P.C.
BY: ~.. S ---
James T. Shoemaker, Esquire
ill No.: 63871
Counsel for the plaintiff, Mellon Bank, N.A.,
now by assignment, Citizens Bank of
Pennsylvania
600 Third Avenue
Kingston, PA 18704
Telephone (570) 287-3000
638018.1
3
P~omi~sorv Note"
,1. ,
$ 395,000.00
Promise To Pay,. FOR VALUE RECEIVED,aIid intending to be legally
bound, Undersigned, as defined below, promises to pay to:
Mellon Bank. N.A.
("Bank") or its order at
Harrisburg, Pennsylvania
the sum of
Three Hundred Ninety Five Thousand and
00/100
Dollars ($ 395,000.00 ), ;with interest on the
outstanding balance from the date of: this Promissory Note
("Note") at the rate(s) ("Contractual Raters)") and in accordance
with the repayment schedule specified belqw.
Contractual Rate(s); Repayment Schedules. :
o Interest at a rate per annum:which is %
above Bank's Prime Rate, such rate to change from time to time
as of the effective date of each announcea change in such Prime
Rate, shall ~ .paid when principal ~nts are due. Principal
shall be paid m consecutive n;lOnthly installments of
$ each, commencing bn
and continuing thereafter on the i day of each month
with the balance of the indebtedness, if n~t sooner paid, due and
payable on :
,
o Interest at a rate per annum which is %
above the CD Rate, such rate to change from time to time as of
the effective date of each change in or re$etting of the CD Rate
sh~lI ~ paid when principal pa~ents ar~ due. Principal shall ~
paid 10 consecutIVe mdnthly installments of
$ each, 1 commencing on
, and continui~g thereafter on the
day of each month wit~ the balance of the
indebtedness, if not sooner paid, que and payable on
i
r
o The principal balance he~f, together with all
accrued and unpaid interest, shall be 'paid on
d . "
an mterest at a rate per annum whiclj1 is % above
Bank's Prime Rate, such rate to change from time to time as of
the effective date of each announced chaqge in such Prime Rate
shall be paid on the day of eachi month commencing o~
. I
,
I
o The principal balance hr' f, together with all
.accrued and unpaid interest, shall be pai on ,
and interest at a rate per annum which . % above the
CD Rate, such rate to change from me to time as of the
effectiye date of each change in or resetti~ of the CD Rate, shall
be paId on the day of each ronth commencing on
!
o In no event shall the rate charged ,'on this Note exceed
. % per annum.
I
o The principal balance hereof, together with all
a~ed and unpaid interest, shall be paid on ,
and mterest at the rate of % per annum shall be paid
on the day of each month commencing on
...... y.~' I'
fXJ '- -S" F) Interest shall be ca1cu*ed at the rate of
~ , c;o % per annum. Principal and~terest shall be paid in
1 7 q consecutive monthly installments of
S ',92'.65 -'r'oo
'j~~ .
. "~L; .' II .'
,
. ~
~., Mellon Bank
Date
'::"'- /A/97
07/01/1999 , and continuing thereafter on the 1ST
day of each month with the balance of the indebtedness if not
soo~er paid, due and payable on 06/01/2014. During any
penod that the ~ntractual Rate(s) is reduced by 0.25% per
annum, as descnbed elsewhere in this Note installments of
princrl and interest shall instead be in 'the amount of
$ ,864.70 each. If the reduction in the Contractual
Rate(s) is no longer in effect, the amount of installments of
principal and interest shall return to and be the same as the amount
of such installments prior to the reduction in the Contractual
Rate(s).
Un.dersigned shall pay Bank concurrently with the execution and
dehvery hereof, or Undersigned previously has paid Bank, an
origination fee of $ 3 I 950. 00 ,to compensate Bank
for its underwriting, origination and administration of the loan
evidenced by this Note. This fee shall be deemed fully earned by
Bank on the date hereof, shall not be refunded, and is in addition
to any other fees, costs or expenses which may be due and payable
hereunder.
,
Unless Undersigned has authorized Bank to take payments out of
a Mellon Olecldng Account, as set forth below Undersigned will
mail or deliver to Bank the amount billed by Bank each month.
Undersigned will mail or deliver the payments so that Bank
receives all payments no later than the due date shown on each bill.
o Undersigned authorizes Bank to take all
payments of principal and/or interest and/or other amounts due
under this Note out of Undersigned's Mellon O1eclting Account
Number , titled in the name(s) of
, on or
after the day of each month. Undersigned will keep a
sufficient balance in this account to cover the full amounts of all
required payments. At. its option, Bank may terminate
Undersigned's ability to use this service. This authorization shall
remain in effect until revoked by Undersigned in writing or until
the loan evidenced by this Note is paid in full or until Bank has
termin~ted Undersigned's ability to use this service, as the case may
be. Pnor to maturity, while this authorization is in effect and
provided that Undersigned keeps a sufficient balance in this
account to cover the full amounts of all required payments, the
Contractual Rate(s) shall be reduced by 0;25% per annum. This
authorization will be effective even though this Note and the
account may be titled in different versions of Undersigned's name.
If the original principal amount of this Note is in excess of
$10,000.00, or if U~dersigned is a corporation, interest shall be
calcul~t~ on ~he. basis of a 360-day year and actual'days elapsed. If
the anginal pnnClpal amount of this Note is $10,000.00, or less, and
Undersigned is not a corporation, interest shall be calculated on the
basis of a 365-day year or 366-day year, as the case may be, and
actual days elapsed.
"Prime Rate" shall mean the interest rate per annum announced
from time to time by Bank as its Prime Rate. The Prime Rate may
be greater or less than other interest rates charged by Bank to
?ther borrowers. and is not solely based or dependent upon the
Interest rate which Bank may charge any particular borrower or
class of borrowers.
If a single certificate of deposit is held by Bank as collateral security
for the indebtedness evidenced by this Note, as more fully
described in the Assignment of Deposit Account expressly referring
to this Note, "CD Rate" shall mean.. the interest rate paid by Bank
on such certificate of deposit (the "ditificate"), said CD Rate to be
.' , ( Page 1 of 5
.;~I,
, .-If
reset by Bank at each renewal of the Cetuticate. If more than one
certificate of deposit is held by Bank as collateral security for the
indebtedness evidenced by this Note, as more fully described in the
Assignment(s) of Deposit Account expressly referring to this Note,
"CD Rate" shall mean the highest of the interest rates paid by Bank
on such certificates of deposit (the "Certificates"), said CD Rate to
be reset at each renewal of each Certificate.
Late Charge. If any payment (including without limitation any
regularly scheduled payment, balloon payment or final payment) is
not paid within 15 calendar days after it is due, Undersigned will pay
a late charge of the greater of $25.00, or three percent (3%) of the
unpaid portion of the scheduled payment due (regardless of whether
the payment due consists of principal and interest, principal only or
interest only). Such late charge shall be in addition to any increase
made to the Contractual Rate(s) applicable to the outstanding
balance hereof as a result of maturity of this Note or otherwise, as
well as in addition to any other applicable fees, charges and costs.
Default Rate(s); Post-Maturity Rate(s). Upon the occurrence of
any Event of Default (as defined in this Note), at Bank's option,
interest shall accrue at a rate equal to two percent (2%) per annum
above the Contractual Rate(s) until the earlier of the date that such
Event of Default has been cured or until and including the date of
maturity hereof.
After maturity, whether by acceleration or otherwise, interest shall
accrue at a rate equal to two percent (2%) per annum above the
Contractual Rate(s) until all sums due hereunder are paid. Interest
shall continue to accrue after the entry of judgment (by confession or
otherwise) at the Contractual Rate(s) until all sums due hereunder
and/or under the judgment are paid, except that after maturity or, at
Bank's option, upon the occurrence of any Event of Default, interest
shall accrue at a rate equal to two percent (2%) per annum above
the Contractual Rate(s).
Books and Records; TIme of Essence. So long as Bank is the
holder hereof, Bank's books and records shall be presumed, except
in the case of manifest error, to accurately evidence at all times all
amounts outstanding under this Note and the date and amount of
each advance and payment made pursuant hereto.
The prompt and faithful performance of all of Undersigned's
obligations hereunder, including without limitation time of payment,
is of the essence of this Note.
_ Security Interest, Setoff and Assignments. To secure all amounts
at any time owing or payable under this Note and Undersigned's
obligations hereunder, as well as to secure all costs and expenses
incurred by Bank in the collection or enforcement of this Note or the
- protection of any collateral securing this Note (including without
limitation all advances made by Bank: for taxes, levies, insurance,
filing fees, and repairs to or maintenance of said collateral),
Undersigned hereby grants to Bank a security interest in, lien upon,
and right of setoff against, all deposit accounts, credits, securities,
moneys, or other property of Undersigned which may at any time be
in the possession of, delivered to, or owed by Ban~ including any
proceeds or returned or unearned premiums of insurance, and the
proceeds of all the foregoing property. Other property, real or
personal, may secure this Note, as set forth in other documents and
agreements.
Undersigned aclcnowIedges and agrees that Undersigned shall
renew, or cause to be renewed, the Certificate(s), if any, until the
indebtedness evidenced by this Note has been paid in full.
Undersigned further agrees tbat Undersigned will execute, or will
cause to be executed, upon demand by Bank any financing
statements or other documents, induding, without limitation,
additional Assignments of Deposit Account, wbicb Bank: may deem
necessary or desirable to evidence, perfect or maintain perfection of
the security interests created in the Certificate(s) and any renewals,
replacements and substitutions thereof.
,<
I
Additional Tenus and Conditions
1. Covenants. Undersigned covenants and agrees that until all
indebtedness evidenced hereby has been paid in full, Undersigned
shall: (a) maintain at all times a positive tangible net worth; (b) (1)
have all Environmental Permits necessary for the conduct of each
of Undersigned's businesses and operations, (2) conduct each of
Undersigned's businesses and operations in material compliance
with all applicable Environmental Laws and Environmental
Permits, (3) not permit to exist any event or condition that requires
or is likely to require Undersigned under any Environmental Law
to pay or expend funds by way of fines, judgments, damages,
cleanup, remediation or the like in an aggregate amount, the
payment of which could reasonably be expected to interfere
substantially with normal operations of Undersigned or materially
adversely affect the financial condition of Undersigned, (4) notify
Bank promptly upon becoming aware of any pending or tbreatened
proceeding, suit, investigation, allegation or inquiry regarding any
alleged event or condition that, if resolved unfavorably to
Undersigned or any of Undersigned's subsidiaries or affiliates, is
likely to cause Undersigned or any of its subsidiaries or affiliates
under any Environmental Law to pay or expend funds by way of
fines, judgments, damages, cleaning, remediation or the like, and
(5) provide at Undersigned's cost, upon request by Bank,
certifications, documentation, copies of pleadings and other
information regarding the above, all in form and content
satisfactory to Bank; (c) conduct each of Undersigned's businesses
and operations in material compliance with all federal, state or local
laws, statutes, regulations, rules, ordinances, court or administrative
orders or decrees, or private agreements or interpretations, now or
hereafter in existence, directly or indirectly relating to or affecting
Undersigned's businesses or operations; (d) use the proceeds of the
loan evidenced hereby only for business purpose(s) specified to
Bank at or prior to the execution hereof; (e) promptly notify Bank
in writing of any change in Undersigned's residence or Chief
Executive Office; (f) purchase and maintain policies of insurance
(including flood insurance) to protect against such risks and
casualties, and in such amounts, as shall be required by Bank:
and/or applicable law, wbich policies shall (1) be in form and
substance satisfactory to Ban~ (2) at Bank's option, designate
Bank as loss payee and/or as additional insured, and/or contain a
lender's loss payable endorsement, and (3) be (or certificates
evidencing same shall be) deposited with Bank; (g) (1) maintain
and keep proper records and books of account in conformance with
generally accepted accounting principles applied on a consistent
basis in which full, true and correct entries shall be made of all
Undersigned's dealings and business affairs, (2) provide to Bank at
Undersigned's cost, upon Bank's request, financial or other
information, documentation or certifications (including without
limitation annual and periodic balance sheets and income
statements, personal financial statements, federal income tax
returns, inventory reports (including a description of raw materials,
finished goods, and the aging thereof, as applicable), and accounts
receivable and payable aging reports), all in form and content
satisfactory to Ban~ and (3) permit, upon request by Bank:, any of
the officers, employees or representatives of Bank to visit and
inspect any of Undersigned's properties and locations and to
examine its books and records and discuss the affairs, finances and
accounts of Undersigned with representatives thereof, as often as
Bank may request; (h) provide additional collateral at such times
and having such value as Bank may request, if Bank shall bave
reasonable grounds for believing that the value of the collateral
securing the indebtedness evidenced by this Note has become
iosufficient to secure said indebtedness; (i) pay, upon demand by
Ban~ (1) all costs and fees pertaining to the filing of any financing,
continuation or termination statements, mortgages, satisfaction
pieces, judgments and any other type of document which Bank
deems necessary or desirable to be filed with regard to security
interests which secure the indebtedness evidenced bereby,
regardless of whether such secl,f.1nty interests were granted by
Undersigned, and (2) all costs and expeqses incurred by Bank in
Page 20f5
, ')i,'
'cvnnection with any collateral securing this Note (including without
limitation all advances made by Bank for taxes, levies, insurance,
repairs to or maintenance of said collateral, appraisal or valuation
of said collateral, and determination of flood hazard), regardless of
whether such collateral is owned by Undersigned; and (j) pay, upon
demand by Bank, all amounts incurred by Bank in connection with
any action or proceeding taken or commenced by Bank to enforce
or collect this Note, including attorney's fees equal to the lesser of
(1) 20% of the outstanding principal balance and interest then due
hereunder or $500.00, whichever is greater, or (2) the maximum
amount permitted by law, plus attorney's costs and all costs of legal
proceedings.
2. Events of Default. The occurrence of any of the following shall
constitute an "Event of Default" hereunder: (a) default in payment
or performance of any of the indebtedness or obligations evidenced
by this Note or any other evidence of liability of Undersigned to
Bank; (b) the breach by any Obligor (defined as Undersigned and
each surety or guarantor of any of Undersigned's liabilities to Bank
as well as any person or entity granting Bank a security interest in
property to secure any indebtedness) of any covenant contained in
this Note or in any separate security, guarantee or suretyship
agreement between Bank and any Obligor, the occurrence of any
default hereunder or under the terms of any such agreement, or
the discovery by Bank of any false or misleading -representation
made by any Obligor herein or in any such agreement or in any
other information submitted to Bank by any Obligor; (c) with
respect to any Obligor: (1) death or incapacity of any individual or
general partner, or (2) dissolution of any partnership or
corporation; (d) any assignment for the benefit of creditors by any
Obligor; (e) insolvency of any Obligor; (f) the filing or
commencement of any petition, action, case or proceeding,
voluntary or involuntary, under any state or federal law regarding
bankruptcy, insolvency, reorganization, receivership or dissolution,
including the Bankruptcy Reform Act of 1978, as amended, by or
against any Obligor; (g) default under the terms of any lease of or
mortgage on the premises where real or personal property securing
the indebtedness evidenced by this Note is located; (h) the
garnishment, tax assessment, attachment or taking by
governmental authority or other creditor of any property of any
Obligor which is in Bank's possession or which constitutes security
for any indebtedness evidenced hereby; (i) entry of judgment
against any Obligor in any court of record; (j) the assessment
against any Obligor by the 'Internal Revenue Service or any other
federal, state or local taxing authority of unpaid taxes, or the
issuance of a levy or the entering of a lien in connection therewith;
(Ie) change in control of or transfer of any interest in any Obligor
- (other than an Obligor who is an individual); (I) a determination by
Bank, which determination shall be conclusive if made in good
faith, that a material adverse change has occurred in the financial
- or business condition of any Obligor; (m) the maturity of any life
insurance policy held as collateral for the indebtedness evidenced
by this Note by reason of the death of the insured or otherwise; or
(n) default by Undersigned in the payment of any indebtedness of
Undersigned or in the performance of any of Undersigned's
obligations (other than indebtedness or obligations evidenced by
this Note or any other evidence of liability of Undersigned to Bank)
and such default shall continue for more than any applicable grace
period.
3. Acceleration: Remedies. Upon the occurrence of any Event of
Default: (a) all amounts due under this Note, including the unpaid
balance of principal and interest hereof, shall become immediately
due and payable at the option of Bank, without any demand or
notice whatsoever; and (b) Bank may immediately and without
demand exercise any of its rights and remedies granted herein,
under applicable law, or which it may otherwise have, against
Undersigned or otherwise. Notwithstanding any provision to the
contrary contained herein, upon the occurrence of an Event of
Default as described in Section 2(f) hereof, aU amounts due under
this Note, including w....Jut limitation the unpaid balance of principal
and interest hereof, shall become Immediately due and payable,
without any demand, notice or further action by Bank whatsoever,
and an action therefor shall immediately accrue.
4. Bank's Rights. Undersigned hereby authorizes Bank, and Bank
shall have the continuing right, at its sole option and discretion, to: (a)
do anything which Undersigned is required but fails to do, and in
particular Bank may, if Undersigned fails to do so, obtain and pay any
premiums payable on any policy of insurance required to be obtained
or maintained hereunder; (b) direct any insurer to make payment of
any insurance proceeds, including any returned or unearned
premiums, directly to Bank, and apply such moneys to any
indebtedness or other amount evidenced hereby in such order or
fashion as Bank may elect; (c) pay the proceeds of the loan evidenced
by this Note to any or all of the Undersigned individually or jointly, or
to such other person(s) as any of the Undersigned may direct, except
to the extent otherwise provided in Section 6 hereof; and (d) add any
amounts paid or incurred by Bank under Section l(i), Section 10) or
Section 4(a) to the principal amount of the indebtedness evidenced
by this Note.
5. Authorization to Borrow. Undersigned hereby represents, warrants,
certifies and covenants as follows:
(a) If Undersigned is a corporation, that the person(s) signing below
hold(s) the office(s) indicated below (and continue to hold such
office(s) until Bank has received notice to the contrary in writing
from Undersigned), and that the Board of Directors of Undersigned
has adopted resolutions providing that: (1) the person(s) executing
and delivering this Note on behalf of Undersigned is/are authorized
(i) to incur indebtedness and obligations on behalf of Undersigned by
borrowing or making other financial arrangements with Bank from
time to time, upon terms and conditions as they in their sole
discretion deem desirable, (ii) to make, execute and deliver
promissory notes, letter of credit agreements, security agreements,
assignments, mortgages and all other documents required by Bank in
connection with the incurring of indebtedness or obligations, and (m)
to assign and pledge as collateral secUrity for any such indebtedness
or obligations, now or hereafter existing, any real or personal
property of Undersigned; (2) the actions of anyone or more officers
of Undersigned in borrowing money from Bank heretofore for the
account of Undersigned, in assigning or pledging any of
Undersigned's property for the payment thereof, or in doing any
other act in connection therewith are hereby ratified, confirmed and
approved; and (3) said resolutions shall have the force of a continuing
agreement with Bank, and shall be binding upon Undersigned until a
resolution amending them shall have been duly and legally adopted
and Bank furnished a certified copy thereof.
(b) If Undersigned is a partnership, that (1) Undersigned's name
shown below is a trade name of Undersigned's firm used in the
conduct of an unincorporated business owned entirely by the persons
signing this Note on behalf of said partnership; (2) the partners
executing and delivering this Note are authorized (i) to incur
indebtedness and obligations on behalf of Undersigned by borrowing
from or making other financing or credit accommodations with Bank
from time to time, upon such terms and conditions as they in their
sole discretion deem desirable, (ii) to make, execute, and deliver
promissory notes, letter of credit agreements, security agreements,
assignments, mortgages and all other documents required by Bank in
connection with the incurring of indebtedness or obligations, and (iii)
to assign and pledge as collateral security for any such indebtedness
or obligationS:"oaw or hereafter existing, any real or personal
property of Undersigned; (3) the actions of anyone or more partners
of Undersigned in borrowing money from Bank heretofore for the
account of Undersigned, in assigning or pledging any of
Undersigned's property for the payment thereof, or in doing any
other act in connection therewith..are hereby ratified, confirmed, and
approved; (4) notwithstanding any Ynodification or terminatiOn of the
Page 3 of5
'"" ~
.:\"
. power of any of the partners to represe~~id firm, whether by
expiration of the partnership agreement, by death or retirement
of any partner, or the accession of one or more new partners, or
otherwise, and notwithstanding any other notice thereof Bank
may receive, this authority shall continue to be binding upon each
of the Undersigned individually and upon their legal
representatives, and upon Undersigned and its successors, until
Bank has received notice in writing to the contrary signed by one
of the Undersigned or by Undersigned's duly authorized agent
(Receipt of such notice will not relieve any partner of any liability
arising from obligations incurred prior to Bank's receipt of such
notice.), and (5) nothing herein shall be construed to limit the
rights granted to a partner by law or by the partnership
agreement, but all rights granted herein shall be in addition to
such rights.
6. Definitions; Miscellaneous Provisions. (a) Undersigned waives
(except where requested hereby) notice of action taken by Bank;
and hereby ratifies and confirms whatever Bank may do. Bank
shall be entitled to exercise any right notwithstanding any prior
exercise, failure to exercise or delay in exercising any such right.
(b) Bank shall retain the lien of any judgment entered on account
of the indebtedness evidenced hereby. Undersigned warrants that
Undersigned has no defense whatsoever to any action or
proceeding that may be brought to enforce or realize on any such
judgment. (c) If any provision hereof shall for any reason be held
invalid or unenforceable, no other provision shall be affected
thereby, and this Note shall be construed as if tbe invalid or
unenforceable provision had never been a part of it. The
descriptive headings of this Note are for convenience only and
shall not in any way affect the meaning or construction of any
provision hereof. (d) The rights and privileges of Bank contained
in this Note shall inure to the benefit of its successors and assigns,
and the duties of Undersigned shall bind all heirs, personal
representatives, successors and assigns. (e) This Note shall in all
respects be governed by the laws of the state in which this Note is
payable (except to the extent that federal law governs). (f)
Undersigned hereby irrevocably appoints Bank and each holder
hereof as Undersigned's attorney-in-fact to endorse
Undersigned's name to any draft or check which may be payable
to Undersigned in order to collect the proceeds of any insurance
or any returned or unearned premiums in respect of any policies
of insurance required to be maintained hereunder. Undersigned
hereby acknowledges that this appointment of Bank and each
holder hereof as attorney-in-fact is irrevocable and is coupled
with an interest. (g) Undersigned assigns to Bank all moneys
which may become payable on any policy of insurance required to
be maintained under this Note, including any returned or
unearned premiums. (h) "Environmental Law" means any
_ federal, state or local environmental law, statute, regulation, rule,
ordinance, court or administrative order or decree, or private
agreement or interpretation, now or hereafter in existence,
relating to the manufacture, distribution, labeling, use, handling,
collection, storage, treatment, disposal or otherwise of Hazardous
Substances, or in any way relating to pollution or protection of
the environment or public health. (i) "Environmental Permit"
means any federal, state or local permit, license or authorization
issued under or in connection with any Environmental Law. (j)
#'.
..
"Hazardous Substances" means petIdeum and petroleum
products, radioactive materials, asbestos, radon, lead
containing materials, sewage or any materials or substances
defined as or included in the definition of "hazardous wastes,"
"hazardous substances," "hazardous materials," "toxic
substances," "hazardous air pollutants," "toxic pollutants,"
"pollution," or terms of similar meaning, as those terms are
used in any Environmental Law. (k) "Chief Executive Office"
means the place from which the main part of the business
operations of an entity is managed. (I) "Undersigned" refers
individually and collectively to all makers of this Note,
including, in the case of any partnership, all general partners of
such partnership individually and collectively, whether or not
such partners sign below. Undersigned shaD each be jointly and
severally bound by the terms hereof, and, with respect to any
partnership executing this Note, each general partner shall be
bound hereby both in such general partner's individual and
partnership capacities.
7. Diroction to Pay Proceeds.Undersigned hereby authorizes and
directs Bank to pay the proceeds ofthis Note by: . '7
tJ crediting Account Number 000- f.;'l1 ~ 1 if c..fl, .tl (p /, z. 6 I i
~in~~~~ / /
5flNb liD ~ DN l+wlt- K ~ rt'f\.
in the amount of$ I . " ./ '"
. I n m R :il' 52 q 0/' ~i.lft.fJn'1llJ t I/O
llIpaying (no (1)" IOJ-fJ7~- J"2 &C;S- -
j'\ A It\,} r. :#-3 I! 3Q 5..3~ i1/qq (P2.. q 2'-'
J
the amount of$
Rpaying /;CNLi/Cf)L! '!1;/J9tj. ~'/
the amount of $
8. Affidavit of Business Loan. (This Affidavit is not applicable if
Undersigned is a corporation.) Undersigned, being duly
authorized, depose(s) and say(s) under penalty of perjury that
Undersigned:
(a) Is/Are engaged in business aslXl Owner(s), 0 General
Partner(s) of: (name and nature of business)
YOUNG' i FOOD MARKET AND .
SAY-F~ SUPERMARKET i (_ 1''-
FOOD MARKET
(b) Hereby make(s) application to Bank for a loan, the
proceeds of which will be utilized for the purpose(s) of
REFINANCE MELLON DEBT. OTHER DEBT
CONSOLIDATION & EQUIPMENT & INVOICE
PURCHASE
(c) Exercise(s) actual control over the managerial decisions of
the business.
(Remainder of page intentionally left blank)
.) Page40f5
'.),"
-9. Confession of Judgment. UNDERSIGNED HEREBY
EMPOWERS TIlE PROTIlONOTARY OR ANY
ATTORNEY OF ANY COURT OF RECORD TO APPEAR
FOR UNDERSIGNED AND TO CONFESS JUDGMENT
AS OFfEN AS NECESSARY AGAINST UNDERSIGNED
IN FAVOR OF TIlE HOLDER HEREOF, REGARDLESS
OF WI-IETIlER ANY EVENT OF DEFAULT HAS
OCCURRED, AT ANY TIME AND AS OF ANY TERM,
FOR TIlE OUTSTANDING PRINCIPAL BALANCE
HEREOF PLUS INTEREST DUE UNDER TIlE TERMS
HEREOF AND ALL OTIlER AMOUNTS DUE
HEREUNDER, TOGETIlER WI1lI COSTS OF LEGAL
PROCEEDINGS AND AN ATTORNEY'S COMMISSION
EQUAL TO TIlE LESSER OF (A) 20% OF TIlE
OUTSTANDING PRINCIPAL BAlANCE AND
INTEREST TIlEN DUE HEREUNDER OR $500.00,
WHICHEVER IS GREATER, OR (B) TIlE MAXIMUM
AMOUNT PERMITIED BY LAW, WITH RELEASE OF
ALL ERRORS. UNDERSIGNED WAIVES ALL LAWS
EXEMPTING REAL OR PERSONAL PROPERTY
FROM EXECUTION.
By signing this Note, Undersigned agrees to all terms of the Note and swears, under penalty of perjury (as set forth in
18 Pa.C.S. ~904, If governed by Pennsylvania law), to the Amdavlt of Business Loan (if completed) set forth in
Section 8 of this Note.
Signatures
Witness the due execution hereof under seal.
x
Witness:
x
Mellon Bank, N.A
Mellon Bank (DE) National Association
CUS43 Rev.(lWJ6) LC. 9196 ill 9196
OZT5 p 166~-3823 1 cl4S43(01)
052799,1605
. I~-dU(il: ~
<. x )., . I
~G HU KW . , J., UUAL AJ.IlU
~~~/~ U u~~T-,h~fJ ~/FZ~"71,i.J/(,2 7
672 B ERVILLE ROAD . / /
NEWVILLE, PA 17241 >~ 7~
Individual:
~U~ t1j ~AK !JUJi(L (L-q ~ (Seal)
672~s~~tILLE ROAD
NEWVILLE, PA 17241
).
Page 5 of 5
. .),'
- . ..
$..curlty.4g~,..ment. '.
..~~,.i'~1ri~'~ '~.%..~~".;~~:...x.., ....b..::,,':J...;~.:.~..y...;,;..-.<...:~....A..~,;:.;..l.'-,~. "" ",: . .....y.>.~;,: '-l(''''': ~~..:'.." ",...~."f,...
."'''').,~'J)1:''"IlJJJ;JjJm)j1j'''~3mIJ',.i!IlRIf~r~'~~~,?'W)l'Q1~.r.y,'',,:-,.I'..,~..~'VIIL')IIM., .' . 'PT"
@ Mellon Bank
For value received, and intending to be legally bound, in
consideration of a loan or other credit accommodation in the
amount of
Three Hundred Ninetv Five Thousand and
00/100
Dollars ($ 395,000.00 ) made by
Nellon ~ank. N.A.
("Bank") to
SANG HO KWAK, INDIVIDUALLY AND
D /PJ~UNG' S FOOD ~~RlC1r.~ID
SAY- SUPERMARKET 7U
YON KWA~ '
("Borrower(s)"), said obligation evidenced by a
PROMISSORt NOTE
dated _ S-.. iff)." '1 'I , (the "Note")
Undersigned, intending to be legally bound, hereby agrees as
follows:
1. Security Interest. Undersigned hereby grants to Bank a security
interest in the following property now owned or hereafter acquired
by Undersigned:
(Certain terms used herein are defined in Section 13 below.)
IX! ~.P 'l/6t) all equipment, wherever located, including
mac~tfrr, mbtorvehicles, furniture and fixtures;
/,/y
IX] C' ~ fb}1i11 inventory (whether held for sale or lease or to
be iu(nisJ?ed under contracts of service), raw materials, work in
process, and materials used or consumed in the conduct of
Undersigned's business, and all books, records, invoices or other
documents which describe or evidence the same;
IX! <'"'~ Y&fall accounts, contract rights, general intangibles,
chart~r, chases in action, instruments, documents (including
all documents of title and warehouse receipts) and all rights to the
payment of money, however evidenced or arising;
o (d) all securities; all cash, stock or other dividends or
distributions paid upon or made in respect of such securities in any
form; all securities received in addition to or in exchange for such
securities; and all subscription rights incident to such securities;
o
(e) all farm products; and
o (f) all property or rights described below under the
caption "Description of Collateral."
Description of Collateral (Give a sufficiently detailed description
to identify each item).
.....'.,','.. ..:'".:
',..V' .
In addition to the foregoing, Undersigned: (1) grants to Bank a
security interest in all accessions, parts, accessories, attachments and
appurtenances in any way used with, attached or related to, or
installed in, or intended to be so used, attached, related to or installed
in, any equipment or inventory constituting "Collateral" hereunder;
(2) grants to Bank a security interest in all substitutions for, renewals
of, improvements, replacements and additions to, and the products
and proceeds (cash and non-cash) of all of the foregoing property
and any insurance policies relating thereto; (3) grants to Bank a
security interest in, lien upon, and right of setoff against, all deposit
accounts, credits, securities, moneys or other property of
Undersigned which may at any time be in the possession of, delivered
to or owed by Bank, including any proceeds or returned or unearned
premiums of insurance, and the proceeds (cash and non~h) of all
the foregoing property; and (4) assigns to Bank all moneys which may
become payable on any policy of insurance required to be maintained
under this Agreement, including any returned or unearned
premiums.
All such property subject to Bank's security interests described in this
Section 1 is referred to herein collectively as the "Collateral." With
respect to Section 4 hereunder, the term "Collateral" shall not include
the property described in Subsection (3) of this Section 1.
AIl security interests in Collateral shall be deemed to arise and be
perfected under and governed by the Uniform Commercial Code,
except to the extent that such law does not apply to certain types of
transactions or Collateral, in which case applicable law shall govern.
2. Obligations Secured. The Collateral shall secure the following
obligations ("Obligation(s)"): (a) all amounts at any time owing or
payable under the Note, and any other indebtedness, liability or
obligation of Borrower(s) or of Undersigned to Bank, now existing or
Page 10f4
hereafter incurred, whether direct or indirect, absolute or
contingent, individual, joint or several, now due or to become due,
and whether owed as drawer, maker, endorser, guarantor, surety or
othelWise; (b) all costs and expenses incurred by Bank in the
collection of the same; and (c) all future advances made by Bank
for taxes, levies, insurance, and repairs to or maintenance of the
Collateral. Provided, however, the interests assigned hereby shall
not secure any obligation (other than the Obligation evidenced by
the Note) which is defined as "consumer credit" by Federal Reserve
Board Regulation Z, 12 C.F.R. f 226.1 et 1Cq., and is not exempted
from the application of that Regulation.
3. Representations. Undersigned hereby makes the following
representations and warranties which shall be true and correct on
the date of this Agreement and shall continue to be true and
correct at the time of the creation of any Obligation secured hereby
~ until the Obligations secured hereby shall have been paid in
full: (a) Undersigned's residence and/or Chief Executive Office, as
the case may be, is as stated below or as otherwise stated in a
subsequent written notice delivered to Bank pursuant to the terms
hereof; (b) Undersigned has good and marketable title to the
Collateral subject to no security interest, lien or encumbrance,
except as indicated to the contrary to Bank in writing prior to the
execution of this Agreement; and (c) if any of the Undersigned is
an individual, each such individual is at least 18 years of age and
under no legal disability or incapacity.
4. Covenants. Undersigned covenants and agrees that until the
Obligations secured hereby have been paid in full Undersigned
shall: (a) not permit the use of the Collateral for any illegal
purposes; (b) promptly notify Bank in writing of any change in its
or their residence or Chief Executive Office; (c) not permit removal
of any of the Collateral from county to county or state to state
unless Bank has given written consent in advance; (d) maintain at
all times good and marketable title to all Collateral, free and clear
of any security interest, lien or encumbrance (except as to which
Bank may grant its prior written consent pursuant to Section 4 (e)
below), and defend such title against the claims and demands of all
persons; (e) not (1) affix the Collateral or permit the Collateral to
be affixed to real estate or to any other goods, (2) lease, mortgage,
pledge or encumber the Collateral, (3) permit the Collateral's
identity to be lost (4) permit the Collateral to be levied upon or
attached under any legal process, (5) permit or cause any security
interest or lien to arise with respect to the Collateral (other than
thCl')C created in this Agreement), or (6) except Collateral
customarily sold by Undersigned in the ordinary coune of business
and so sold in such manner for full value, sell, consign, part with
possession of, or otherwise dispose of the Collateral or any rights
therein, except as Bank may grant its prior specific written consent
with respect to acts or events specified in Subsections (1), (2), (5)
or (6) hereof; (f) maintain the Collateral in good condition and
repair, excepting only reasonable wear and tear; pay and discharge
all taxes and other levies on the Collateral. As well as the costs of
repair and maintenance thereof; and furnish to Bank upon request
documental}' proof of payment of such taxes, levies and costs; (g)
purchase and maintain policies of insurance (including flood
insurance) to protect the Collateral or other property against such
risks and casualties, and in such amounts, as shall be required by
Bank anellor applicable law, which policies shall (1) be in form and
substance satisfactory to Bank, (2) at Bank's option, designate
Bank as loss payee and/or as additional insured, and/or contain a
lender's loss payable endorsement, and (3) be (or certificates
evidencing same shall be) deposited with Bank; (h) execute, upon
demand by Bank, any financing statements or other documents
which Bank may deem necessary to perfect or maintain perfection
of the security interest(s) created in this Agreement and pay, upon
demand by Bank, (1) all casts and fees pertaining to the filing of
any financing, continuation or termination statements, mortgages,
satisfaction pieces, judgments and any other type of document
which Bank deems necessary or desirable to be filed with regard to
the Collateral, and (2) all costs and expenses incurred by Bank in
.; .,.,.--
connection with the Collateral (including without limitation a)}
advances made by Bank for taxes, levies, insurance, repairs to or
maintenance of the Collateral, appraisal or valuation of said
collateral, and determination and monitoring of flood hazard status);
(i) procure, and cause a statement of Bank's security interest to be
noted on, any certificate of title issued or required by law to be issued
with respect to any motor vehicle constituting part of the Collateral,
and cause any such certificate to be delivered to Bank within 10 days
from the later of the date of this Agreement or the date of the
issuance of such certificate; 0) pay, upon demand by Bank, all
amounts incurred by Bank in connection with any action or
proceeding taken or commenced by Bank to enforce this Agreement
or protect, insure or realize upon the Collateral, including attorney's
fees equal to the lesser of (a) 20% of the amount of the Obligations
secured hereby then due or $500.00, whichever is greater, or (b) the
maximum amount permitted by law, and attorney's costS and all costs
of legal proceedings; (k) reimburse Bank on demand for any
advances made by it for payment of (1) premiums to insure the
Collateral, or (2) taxes, levies or casts, together with interest thereon
at the highest rate allowed by law; and (I) immediately notify Bank if
any of Undersigned's accounts arise out of contracts with the United
States or any department, agency or instrumentality thereof, and
execute any instruments and take any steps required by Bank in
order that all moneys due and to become due under any such
contracts shall be assigned to Bank and notice thereof given to the
United States under the Federal Assignment of Claims Act.
s. Events of Default. The occurrence of any of the following shall
constitute an "Event of Default" hereunder: (a) default (i) in the
performance of any covenant hereunder or (ii) under any other
instrument or document evidencing or securing the Obligations; (b)
any warranty, representation or statement made or furnished to
Bank by or on behalf of the Undersigned proving to have been false
in any material respect when made or furnished; (c) loss, theft,
substantial damage, destruction, sale or encumbrance to or of any of
the Collateral, or the making of any levy, seizure or attachment
thereof or thereon; or (d) death, dissolution, termination of
existence, insolvency or business failure of the Undersigned,
appointment of a receiver for Undersigned or any part of the
Collateral, assignment for the benefit of creditors or the
commencement of any proceeding under any bankruptcy or
insolvency law by or against the Undersigned.
6. Remedies of Bank. Upon the occurrence of any Event of Default:
(a) Undersigned shall, upon demand by Bank, assemble the
Collateral and promptly make it available to Bank at any place
designated by Bank which is reasonably convenient to both parties;
(b) Bank may immediately and without demand exercise any of its
rights and remedies granted herein, under applicable law, or which it
may otherwise have, against the Undersigned, the Collateral, or
otherwise; and (c) Bank may, without notice or process of any sort,
peaceably enter any premises where any Collateral is located and take
possession, retain and dispose of such Collateral and all property
located in or upon it. Bank shall have no obligation to return any
such property not constituting Collateral unless Bank actually
receives Undersigned's written request therefor specifically
describing such property within 72 hours after repossession thereof.
7. Bank's Rights. Undersigned hereby authorizes Bank, and Bank
shall have the continuing right, at its sole option and discretion, to:
(a) do anything which Undersigned is required but fails to do
hereunder, and in particular Bank may, if Undersigned fails to do so,
(1) insure or take any reasonable steps to protect the Collateral, (2)
pay all taxes, levies, expenses and costs arising with respect to the
Collateral, or (3) pay any premiums payable on any policy of
insurance required to be obtained or maintained hereunder; (b)
direct any insurer to make payment of any insurance proceeds,
including any returned or unearned premiums, directly to Bank, and
apply such moneys to any Obligations evidenced or secured hereby in
such order or fashion as Bank may elect; and (c) inspect the
Collateral at any reasonable time. P 2 4
age of
.. ,. . ..
In addition to the rights given to Bank in this Agreement, Bank
shall have all the rights and remedies of a secured party under any
applicable law, including without limitation, the Uniform
Commercial Code.
8. Additional Representations. In addition to the representations
and warranties set forth elsewhere in this Agreement, Undersigned
hereby makes the following representations and warranties which
shall be true and oorrect on the date of this Agreement and shall
continue to be true and correct at the time of any borrowing under
any line of credit with Bank and until the Obligations secured by
this Agreement shall have been paid in full: (a) each account: (1)
represents an amount actually owing to Undersigned by the
account debtor (less discounts allowed for prompt payment); (2) is
valid and enforceable according to Its terms without further
performance of any kind; (3) is not evidenced by any instrument or
chattel paper unless the original of such instrument or chattel
paper has been deposited with Bank; and (4) is not evidenced by
any judgment unless such judgment has been assigned of record to
Bank; and (b) the locations of all of Undersigned's places of
business are as stated below, and the inventory and records of the
accounts are kept at the places indicated below.
9. Additional Covenants. In addition to the covenants set forth
elsewhere in this Agreement, Undersigned covenants and agrees
that until the Obligations secured by this Agreement have been
paid in full Undersigned shall: (a) immediately notify Bank in
writing in the event that any of the following occurs: (1) any
account is or becomes entitled or eligible for discount for prompt
payment; (2) any account debtor has or may have any defense to
payment of, or right of setoff, counterclaim, or recoupment against
any account; (3) any account represents an amount which is
disputed by the account debtor or the payment of which is in any
way contingent or conditional; or (4) the desirability, usefulness, or
marketability of any of the inventory has been in any way reduced
or impaired by reason of physical deterioration, technical
obsolescence, or otherwise; (b) keep accurate and complete books
and records in accordance with generally accepted accounting
principles and, at Undersigned's expense, promptly furnish Bank
such information and documents relating to the Collateral at such
times and in such form and detail as Bank may request, including
without limitation: (1) copies of invoices or other evidence of
Undersigned's accounts and schedules showing the aging,
identification, reconciliation, and collection thereof; (2) evidence of
shipment and receipt of goods and the performance of services or
obligations covered by accounts; and (3) reports as to
Undersigned's inventory and purchases, sales, damage, or loss
thereof; all of the foregoing to be certified by authorized officers or
other employees of Undersigned; (c) not change any location listed
below regarding places of business, inventory and records of
accounts without Bank's prior written consent; (d) at
Undersigned's expense, diligently collect the accounts on behalf of
Bank until such time as Bank exercises its right to directly collect
the accounts, and upon notice from Bank, deliver all proceeds of
accounts to Bank forthwith upon receipt, in the original form in
Which received; (e) immediately upon Bank's request, open a cash
collateral account ("Cash Collateral account") at Bank and deposit
therein all cash proceeds of collections on the accounts; (f)
immediately upon Bank's request, give the Bank assignments, in
form acceptable to Bank, of specific accounts or groups of accounts
and specific general intangibles, and immediately repay the amount
loaned against any account so assigned to the Bank if the contract
with the account debtor is breached, cancelled or terminated; (g)
immediately upon Bank's request, furnish Bank with all
information received by Undersigned regarding the financial
condition of any account debtor, except to the extent prohibited by
law; (h) immediately deliver to Bank all instruments, documents or
chattel paper representing any of the Collateral and immediately
assign of record to Bank any judgment representing any account
constituting Collateral; and (i) immediately upon Bank's request,
mark its records evidencing its accounts in a manner satisfactory to
Bank so as to show which accounts have been assigned to Bank.
10. Additional Rights of Bank. In addition to the Bank's rights set
forth elsewhere in this Agreement, Undersigned hereby authorizes
Bank, and Bank shall have the continuing rights at any time, whether
or not any default has occurred under this Agreement, and at its sole
option and discretion, without notice, to: (a) take over and collect any
or all of the accounts and to take any other action pursuant to its
power of attorney granted herein; (b) exercise absolute and exclusive
dominion and control over all funds deposited in the Cash Collateral
account; apply any funds therein against any Obligations; and charge
to any deposit account of Undersigned any Item of payment credited
to the Cash Collateral account which is subsequently dishonored; (c)
at any reasonable time, through its authorized agents and employees,
inspect, audit, and verify the accounts and the inventory, review
Undersigned's books and records, and copy or make excerpts from
any document; and (d) verify accounts with debtors in the name of
Undersigned, Bank, or Bank's designee.
11. Miscellaneous Provisions. (a) Undersigned waives protest of all
commercial paper at any time held by Bank on which Undersigned is
in any way liable, notice of nonpayment at maturity of any and all
accounts, and (except where requested hereby) notice of action taken
by Bank; and hereby ratifies and confirms whatever Bank may do.
The rights and remedies of Bank hereunder are cumulative. Bank
shall be entitled to exercise any right notwithstanding any prior
exercise, failure to exercise or delay in exercising any such right. (b) If
any provision hereof shall for any reason be held invalid or
unenforceable, no other provision shall be affected thereby, and this
Agreement shall be construed as if the invalid or unenforceable
provision had never been a part of it. The descriptive headings of this
Agreement are for convenience only and shall not in any way affect
the meaning or construction of any provision hereof. (c) The rights
and privileges of Bank contained in this Agreement shall inure to the
benefit of its successors and assigns, and the duties of Undersigned
shall bind all heirs, personal representatives, successors and assigns.
(d) No modification of this Agreement, nor any waiver of any
provision hereof, shall be effective or enforceable unless set forth in
writing and signed by an officer of Bank. (e) This Agreement shall in
all respects be governed by the laws of the state where the
Obligations are payable as reflected in the document(s) evidencing
such Obligations (except to the extent that federal law governs), and
all references to the Uniform Commercial Code shall be deemed to
refer to the Uniform Commercial Code as enacted in such state. (f)
Undersigned hereby irrevocably appoints Bank and each holder
hereof as Undersigned's attorney-in-fact to: (1) endorse
Undersigned's name to any draft or check which may be payable to
Undersigned in order to collect the proceeds of any insurance or any
returned or unearned premiums in respect of any policies of
insurance required to be maintained hereunder; and (2) take any
action Bank deems necessary to perfect or maintain perfection of any
security interest granted to Bank herein, including executing any
document on Undersigned's behalf. (g) Undersigned shall bear the
risk of loss of, damage to, or destruction of the Collateral, and
Undersigned hereby releases Bank from all claims for loss or damage
to the Collateral caused by any act or omission on the part of Bank,
except for willful misconduct. (h) The prOlhpt and faithful
performance of all of Undersigned's Obligations hereunder,
including without limitation, time of payment, is of the essence of this
Agreement. (i) Copies or reproductions of this document or of any
financing statement may be filed as a financing statement.
12. Additional Power of Attorney. In addition to the powers of
attorney granted to Bank by Undersigned elsewhere in this
Agreement, Undersigned hereby appoints Bank and its officers,
Page 3 of 4
employees and agents as its irrevocable, true and lawful attorneys
in fact with all necessary power and authority to: (a) endorse
Undersigned's name on all media of payment delivered to Bank or
deposited in the Cash Collateral account; (b) notify Undersigned's
account debtors of the assignment of their debts and direct them to
make all payments thereon to Bank; (c) in Bank's name or in the
name of Undersigned, demand, sue for, collect, compromise, settle,
and give releases from any account; and (d) take such other action
as Bank may deem appropriate for any such purpose. In exercising
its rights under this section, Bank shall have no liability to
Undersigned except for willful misconduct.
13. Definitions. As used herein: (a) "account," "chattel paper,"
"contract right," "document," "instrument" and "inventory" have the
same respective meanings given to those terms in the Uniform
Commercial Code; (b) "Chief Executive Office" means the place
from which the main part of the business operations of an entity is
Signature.
Witness the due execution hereof this
".9 t) 7 II
'.
"
managed; (c) "general intangibles" has the meaning given to't1:lf!
term in the Uniform Commercial Code, including without limitation,
customer lists, books and records (including without limitation, all
correspondence, files, tapes, cards, book entries, computer runs,
computer programs and other papers and documents, whether in the
possession or control of Undersigned or any computer service
bureau), rights in franchises and sales contracts, patents, copyrights,
trademarks, logos, goodwill, trade names, label designs, royalties,
brand names, plans, blueprints, inventions, patterns, trade secrets,
licenses, jigs, dies, molds and formulas; and (d) "Undersigned" refers
individually and collectively to all makers of this Agreement,
including, in the case of any partnership, all general partners of such
partnership individually and collectively, whether or not such partners
sign below. Undersigned shall each be jointly and severally bound by
the terms hereof, and with respect to any partnership executing this
Agreement, each general partner shall be bound hereby both in such
general partner's individual and partnership capacities.
day of /'''//J Y 19$:9
Witness:
x
Location OrlDveDtory:
RP 3 BO~ 6?2
NF.'(lVTT.T.1P., p~ 17'41
LZ-012S Rev.(10196) L.C 9196 LD 9196
0275 P 166-64-3823 1 LZ012S (02)
052799,1605
/~
?)~fb/a
672
E, PA 17241
Location or records CODcemiDa the aceouDts:
RD 3 BOX 672
NF.WVTT.T.F., p~ 17'41
Page 4 of 4
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T-442 P05/11 U-170
FINANaNC STIt.TDlar
"alto"", OIaIImotdo.l <:.a. E_ vce.t
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All.. DEIITDII.'S U/iltT, TIUE. """ INTEREST. IIIlfTllEI *'" 11II
IEREAfTEIl EXISTING III AtmllltED. III AIlD TO ALL lllYEllTlRf
UICUOIIlG 'em_NEll OIl 1f1lQS$E$UlI GCZlD$), utalfiS. IlI'IiN
~S. GENEIlA!. III.NG..LES. llCIt\IIElITS, PlATTU ,.am,
INSTllJ\l;NTS, NDTES, aWn. U1TfllSOll CVltfS Of ClEOIT.
lIEailv",Ln. mf. AIICUITS CllIINIO TO DOTGI. F1XTU1\U,
flJIlNI1I1l& ~o IOllIPWT, ~L NClDIICl'S NIII CASH AND
1IOlI-CA$1\ PlIClC1!COI lINC~1lO1111 INIIJIAIIC! PDlI~res AIIIl
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UCC FINANCING STATEMENT AM, ENDMENT /7 ::r:..;~
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. . . PA.RTIf:S _.
Debu,r name O-St IIJlme lin<11C iI1diWlulll) a.nd mallin, addn:=
." ~l(IJM:,'$ANli HO
. "
RP 3 BOX ~ ' '1 a..
)IE\oIVILLE, PA 1 ?241
Dcblow _c (la&t.lUlmc flpi if indivi4ual) .114 JlIlIilinll ad4~
YDUllG' S ~OOO MAIUCIiT
RD 3 BOIC ~ (jo,"",
NEWILL!!, PA 17241
Dcblllr name (laat name rJl1t IClndividl1al) and llllIiling llddrcaa:
Bee1lftd Parl1(Ics) nJmC(;) (Wt DMlC 6DI iC lndividuaI) anc1
ucIdrua lot.ecurlty Inu:rcal inrol'lllallon:
Mellon aank, N.~.
ll\l8frwOG lIanlc.ng loan C:..,Cer
0l'\4' MoHon fhlnk Center 1 Rill. 1S'-1i!70
Pltt~burg~. PA 1S2Sa-Ov01
"2-
AKfaacc(-) or ~ p~ 1IIII\l!(af (I.W DIImc tItst If lncllvldllal)
~ addtaa for IOCluity IaICI'CIiC Information..
Spcdal 'I)pu 01 lI'lII1IclI (cbcck'lCappl1cable):
o 'IIIe lena "Pcbtcx" and "Secured I'.nyt IlWID "LeAc:c"
ad "Lcaor,. rcapeaWe!)'.
C ne CenD& "Dcbcot' .Illl "SccuRd Party" J:O.Wl "CoImgnce"
pel "CoaIlpor.' rc:spectively.
o DdKor fa 1\ TrllmmltUllr; Utility-
SECURED PAIn'YSIGNATIJRE(S)
"'slaktDaJ.t" aw.....1h oDlY the 8ec1llllll Putt' aIpAare to
pedect .lICCIldty iatcraUn collatcal (c:bcckappli<:ab1c bcK(~))-
~~~'.~ ~~; .
.. .~T~729: P.002/008 F-210
t1NM<<:1NU 8i~1'~
Uniform Cou\mllmal Code FonnUCC-l
II A:> 1_ IMPORTANT - Please rWI1nstruc:1iou
1lP1 r; _ dl\!fuU,.btrorerompletine _ .
FII1ngNo. (s1llo1l1ped by filing offlCeP):: ~t"t. ~ .!t~~ (llImped t:f.J fi1ius oCfice&?:
:::. :)0:. qn'~~'o~_ DEEDS
::i' !.H;;, :~LAtI[) COUNTY - flA
1
1.
9-r7T'J 'S'/ JUH2~_~.~~ 1~ ~1 _.. s
. nil FIDaoc/.Dc SlAlc~ iii plllICftKll for filing'puDWIDlIO 1IIe Unifotlll CollUIltrCial
CodA!, and ia lOb:1iJedl\'llh lhc(da:chpP1lcable~~
C SeeretatyaC\hec.........: .~.AIth. ': '. Ill.., "j'"
[J 'Prothouowyof. " ,.,.
!XI real ClIlato (CCOrcJa of CIJ4III!RUJlp ,_ .. ~,: . ~~
iii (cha;:k~ it~ J'rod~oClhc col~ in;.,ClOVere4..
'ldcaUJy nIa\c4 RGl....k, Ihppilallble: "fIII;\101~ iI, or Inc!ucles.
(checlcappropriale~CI))- ~. '-:;'
a. [J Ctvpl p;owiaJortobc~OA- .;, -' .,....
b. iii goodawllldUrcorlltClObcccuDc:,QxI~ ~-:f
Il. [J mlNl'lllI ot 1hc IIU (lDcludiq 011 and PS)a..,l!la&1lC:tCcI oa-
If. 0 _ala l'CtulUll& ftom ui&--..Li ot'p"~;,Cir lIle IIfcc (iadudius nil.ad gas) at
Ibewc1J1leBdotmincheadClll~ ',' ,\0\11:"1'1
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Ille rol1owill, RllI CSlllle: : I:,
a. [] ao:jllltecl After. chaa... or Aa~~ Idcrdll,1 or 001'padte IItnIctw:c RD 3 lOX 3U ,
of (he Deblor. SIoctM~ NEWlLLE PA ln41' .
b. C as to which the IlUPI baa lapsed. DeoIcriW ~ Dook~at (llhecI(cil\etCl Deeds 0 MorIpics,
c. altead)' aabJact to. &CQlf\ly Interest III _..ther coanl1m at. Pa&e(s) _. . Cor CUMIrEIit;Alllf':;:;f;':';~~
I'cmmyJ\lal1la - Collnty. UlIiConu PlItCd ldeatlilCt .~. ""'W,~~...
D Vthen tho C4J1ataal wu ID.IIW to IIUs 1lOUDl)'. . ,;:: ". ~
o Dcsc:n'b6donAddiIiouAISbeet.," "<1':" ~ '.;,.
C -::. ~~... _I".-nee 01' J;>1Iu:c oI'bvah1e8llll'llIlAovcd Ha_ .t-=onI 0WDu (rl!qtUred on'; tt:~ ~~ all'lalereSt of I'CIOOO.\):
d. a1ceady lubJ~ 10 a accllr.ityInwrflSt In _ther juda.cI1eUoll_ DEBTOR Si(;N~'A;..'i'V~s)
o when ~ coilaleral wa RWved to Pr:lUlS)'lvaAb. ., " .
Owllcu lhe Dcbtor'l\ocaUoD"" "'0\'611 \D P~lVl1nb. .. ~~:7~'~~ ~..~-'_ :.~", ',':. m.. . ~~,.
e.n which la ~ ofth4cml1at~ dcscn"W 111 b1oclt9. ~(.5~ ;cco MAR~T '. . .
in ..bleb ucc:urily lJ11'erect __ pa:viOual)' perfected (alaa drscrlbc: 11\. . ~..'. .
~ III bIoc:k9.lfpurc:based with cath ~ and not ': ; -
adequatl:\y deac:rlbc1 OD \he original fllWlClllt: IlJltCllSCllt). Ib
S-UCd p~ SlpatDrt:C') Rln'URNlU!ClW'TTO:
(requited otIly lf1ialt(ca)'" cheeked aboYe)\ Mellon Bant~ N .A.
Mel.LO~BA.N:r._)J ~, ._ BUS.ness aai\k..ng lOllll c.nt.~.
G~ ~ P.O. BoX 3080
Pittsburgh, Pol 1SnO-JD8ll
_ 'W/ . AU., Coll._.I ..."
I
STItNtJARD l'OICM - fORMPA Ucc.l (Rd. 3,'93)
ApJl"OWlll bySm'du1otC:O-Q~ 6rPnllly{vnla
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lb NumMJ'-otMdllloIlQ.S te~ l~8Dy.. . ~',,:,_ _ _
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COUA.'l'EJ.UL"f'...':',,: .
. .. .' ~-<"'~'~'i:1I.:.
JckDurr~nrI by1lcmlUldlorl:ypQ:,.,l- \~"~:.y..!i
AlL DE1J1"OR'S IltGllT, TtTLe, AND INTEREST.i~\lIiS'\'HER NOll Clt
HEREAFTER ~TSTII/G OR ACOUIIlE~~ ANO TO ALL INVEHTllRY
(INClUDING lE1lJRNED Oil REPOSS COODS)'~ ACCOUIlT$. OPEl
ACCWNTS, GENEAAl. INTAJlGI8LES, <l)OC\JI4ENlli.j":CllATTEL PAPER,
IIISTRUMeiITS, NOTES, DRAUS, Ll!lTElS ClR ADVIUS or CREDIT.
RECEIVABlES, Ol'IIER JMClJIITS WING TO DlOBTOI, FIXTURES.
FURNITURE .uo EQlJIPMM, ALL ~R.CID\JCTS AIlll CASH AND
NOIH:A$H PROCEEtl$ (1NCLlJ)UIG 11ISURANCE, pOLICIES AllD
PRCCEEOS) OF TilE fORSGOltl(; lIIll All GUARAIITrES, CLAIMS,
RIGKTS, REJQ;OlES AND PUVILEGES'llELAnNli~,:TIleJU:TO.
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Oct-20-2004 08:32am
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T~729 P.003/009 F-210
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UCC FINANCING STATEMENT AMENDMENT
FOWlWIN~"""'_~ . _ IYj"J..ft;
-~ NAME I. PHONe all cONTIoCt' AT fUR (QII\lOMIt
8. 'SlONOAC:I<NOWlJitlGIWfTTOlIJ'IMu.MAddrWl
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Detail report item #1 printed by: DOTTIE HOFFMAN on 2/22/01
================================~==============================================
PENNSYLVANIA Dee DETAIL REPORT
DATA COVERAGE THROUGH
FE B 0 5 , 2 0 0 1
SEARCH COMPLETED
FEB 22, 2001
08:59 AM (CST)
~==~~~~=====~==~=======~===~====~=============================================~
Filing Location:
SECRETARY OF STATE OF PENNSYLVANIA
308 NQRTH OFFICE BUILDING
HARRISBURG, PA. 17105-8722
Original Filing Number:
Original Filing Date:
26811373
06/23/1997
Collateral:
FURNITURE AND FIXTURES
HEREAFTER ACQUIRED PROPERTY
INVENTORY
MACHINERY AND EQUIPMENT
OTHER
Debtor:
KWAK, SANG HO
RD 3 BOX 672
NEWVILLE, PA. 17241-0000
Additional Debtor:
YOUNG'S FOOD MARKET
RD 3 BOX 672
NEWVILLE, PA. 17241-0000
Secured Party:
MELLON BANK NA
BUSINESS BANKING LOAN CENTER
PGH, PA. 15258-0001
THE INFORMATION IN THIS REPORT IS PROVIDED IN CONFIDENCE SOLELY FOR YOUR USE IN
EVALUATING ACTUAL OR CONTEMPLATED BUSINESS TRANSACTIONS INVOLVING THE BUSINESS
ENTITY TO WHICH SUCH INFORMATION RELATES. NEITHER EXPERIAN NOR EXPERIAN'S
SOURCES WARRANT THE ACCURACY, COMPLETENESS, CURRENTNESS, MERCHANTABILITY OR
FITNESS FOR A PARTICULAR PURPOSE OF SUCH INFORMATION. IN NO EVENT WILL EXPERIAN
BE LIABLE FOR INDIRECT, INCIDENTAL, CONSEQUENTIAL OR SPECIAL DAMAGES RESULTING
FROM THE USE OF SUCH INFORMATION.
THE FOLLOWING DATA IS FOR INFORMATION PURPOSES ONLY AND IS NOT AN OFFICIAL
RECORD. CERTIFIED COPIES MAY BE OBTAINED FROM THE PENNSYLVANIA DEPARTMENT OF
STATE.
~
VERIFICATION
I, Joseph E. Sweeney, hereby certify that I am an Assistant Vice President of Citizens
Bank of Pennsylvania I have the authority to make this verification on its behalf. I hereby verify
that the factual averments contained in the foregoing complaint are true upon my personal
knowledge or information and belief. I understand that this verification is made subject to the
penalties of 18 Pa.C.S.A. 94904 relating to unsworn falsification to authorities.
637979.]
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HOURIGAN, KLUGER & QUINN
A PROFESSIONAL CORPORATION
BY: JAMES T. SHOEMAKER ESQUIRE
IDENTIFICATION NO. 63871
LAW OFFICES
600 Third Avenue
Kingston, PA 18704
(570) 287-3000
ATTORNEY FOR PLAINTIFF
MELLON BANK., N.A., now by assignment
CITIZENS BANK OF PENNSYLVANIA
8 West Market St.
Wilkes-Barre, PA 18701,
IN THE COURT OF COMMON PLEAS
OF CUMBERLAND COUNTY
Plaintiff
vs.
CIVIL ACTION -- LAW
REPLEVIN
SANG HO KW AK, Individually and d/b/a
Young's Food Market, and YON HW A KW AK:
2208 Chatham Way
Harrisburg, PA 17110,
Defendants
NO. 04 - ~"'5y
C21,J~'UL~
PLAINTIFF'S MOTION FOR WRIT OF SEIZURE
The plaintiff, Mellon Bank, N.A., now by assignment, Citizens Bank of Pennsylvania, by and
through its counsel, Hourigan, Kluger & Quinn, P.c., hereby submits, pursuant to Pa.R.c.P. 1075.1, its
motion for writ of seizure, against the defendants, Sang Ho. Kwak, individually and d/b/a Young's Food
Market, and Yon Hwa Kwak, as follows:
638031.1
.~
On even date herewith, the plaintiff is filing a complaint in replevin against the defendants. (A true
and correct copy of plaintiff s complaint in replevin is attached hereto pursuant to Pa. R.C.P. No.1 075 .1 (b),
incorporated herein by reference pursuant to Pa. R.C.P. No. 1019(g) and marked as Exhibit "I.")
WHEREFORE, the plaintiff prays this Court to enter an Order directing the Prothonotary to issue
a writ of seizure to the Sheriff directing the Sheriffto seize the Collateral.
Respectfully submitted,
HOURIGAN, KLUGER & QUINN, P.C.
BY:
~~
James T. Shoemaker, Esquire
ill No.: 63871
Counsel for the plaintiff, Mellon Bank, N.A., now by
assignment, Citizens Bank of Pennsylvania
600 Third Avenue
Kingston, PA 18704
Telephone (570) 287-3000
Facsimile (570) 287-8005
Dated: November z,:} , 2004
638031.1
2
"
VERIFICATION
I, Joseph E. Sweeney, hereby certify that I am an Assistant Vice President of Citizens
Bank of Pennsylvania I have the authority to make this verification on its behalf. I hereby verify
that the factual averments contained in the foregoing motion are true upon my personal
knowledge or infc,nnation and belief. I understand that this verificatio~ is made subject to the
penalties of 18 Pa.C.S.A. ~ 4904 relating to unsworn falsification to authorities.
ftLir
637979.1
..
HOURIGAN, KLUGER & QUINN
A PROFESSIONAL CORPORATION
BY: James T. Shoemaker, Esquire
IDENTIFICATION NO. 63871
LAW OFFICES
600 THIRD AVENUE
KINGSTON, PA 18704
(570) 287-3000
ATTORNEY FOR PLAINTIFF
MELLON BANK, N.A, now by assignment
CITIZENS BANK OF PENNSYLVANIA
8 West Market St.
Wilkes-Barre, PA 18701,
IN THE COURT OF COMMON PLEAS
OF CUMBERLAND COUNTY
Plaintiff
vs.
CIVIL ACTION -- LAW
REPLEVIN
SANG HO KW AK, Individually and d/b/a
Young's Food Market, and YONHWAKWAK:
2208 Chatham Way
Harrisburg, P A 1711 0,
Defendants
NO.
2004
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 Notic,e
are served by entering a written appearance personally or by attorney and filing in writing with the
Court your defenses or objections to the claims set forth against you. You are warned that if you fail
to do so the case may proceed without you and a judgment may be entered against you by the Court
637973.1
'k ' EXHIBIT
.~~. .' ,
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without further notice for any money claimed in the Complaint or for any other claim or relief
requested by the Plaintiff. You may lose money or property or other rights important to you.
YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO
NOT HA VE A LAWYER, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW.
THIS OFFICE CAN PROVIDE YOU WITH INFORMATION ABOUT HIRING A
LAWYER.
IF YOU CANNOT AFFORD TO HIRE A LAWYER, THIS OFFICE MAY BE ABLE
TO PROVIDE YOU WITH INFORMATION ABOUT AGENCIES THAT MAY OFFER
LEGAL SERVICES TO ELIGmLE PERSONS AT A REDUCED FEE OR NO FEE.
COURT ADMINISTRATOR
Cumberland County Court House
Carlisle, P A 17013
(717) 249-1133
-or-
PENNSYL VANIA LAWYERS REFERRAL SERVICE
P.O. Box 1086, 100 South Street
Harrisburg, P A 17108
(pennsylvania residents phone:
1-800-692- 7375 ; out-of-state
residents phone: 1-717-238-6715)
HOURIGAN, KLUGER & QUINN, P.e.
BY: '-
James T. Shoemaker, Esquire
Counsel for the plaintiff, Mellon Bank, N.A.,
now by assignment, Citizens Bank of
Pennsylvania
637973.1
"
HOURIGAN, KLUGER & QUINN
A PROFESSIONAL CORPORATION
ALLAN M KLUGER
RICHARD M GOLDBERG
JOSEPH A LACH
RONALD V SANTORA
JOSEPH E HUGER
JAMES T SHOEMAKER
MICHAEL J KOWALSKI
RICHARO M WILLIAMS
JENNIFER L ROGERS L1TTZr
JOSEPH A QUINN JR
ARTHUR L PICCONE
RICHARD S. BISHOP
DANIEL J DISTASIO
DONALD C. L1GORIO
MICHELLE M. OUINN
DAVID AIKENS, JR
AMANDA V WRIGHT.KLUGER
MICHAEL A LOMBARDO III
LAW OFFICES
SUITE TWO HUNDRED
434 LACKAWANNA AVENUE
SCRANTON. PA 18503 2014
(570) 346.8414
FACSIMILE (570) 961.5072
600 THIRD AVENUE
KI NGSTON, PA 18704-5815
(570) 287-3000
FACSIMILE (570) 287-8005
E-MAIL: hkq@hkqpc.com
OF COUNSEL
ROBERT C CORDARO
ANDREW HOURIGAN. JR.
1948+1978
Ext. 1126
Direct e-mail: ishoemaker(aJ)Jkqpc.com
"ALSO MEMBER NJ BAR
November 23, 2004
Sang Ho K wak, Individually
and d/b/a Young's Food Market
2208 Chatham Way
Harrisburg, P A 17110
Property Address:
Account No.:
Young's Food Market, RD 3 Box 672 Newville, PA 17241
0805386-0101
IMPORTANT NOTICE
THIS NOTICE IS SENT TO YOU IN AN ATTEMPT TO COLLECT A DEBT AND ANY
INFORMATION OBTAINED FROM YOU WILL BE USED FOR THAT PURPOSE,
UNLESS YOU, WITHIN THIRTY (30) DAYS OF RECEIPT OF THIS NOTICE, DISPUTE THE
VALIDITY OF THE DEBT, IT WILL BE ASSUMED TO BE VALID.
IF YOU NOTIFY THIS OFFICE IN WRITING WITHIN THIRTY (30) DAYS THAT THIS
DEBT, OR ANY PORTION THEREOF IS DISPUTED, WE WILL OBTAIN AND FORWARD
TO YOU A VERIFICATION OF THE DEBT OR THE JUDGMENT AGAINST YOU. WE
WILL ALSO PROVIDE, UPON WRITTEN REQUEST WITHIN THIRTY (30) DAYS OF THE
DATE OF THIS NOTICE, THE NAME AND ADDRESS OF THE ORIGINAL CREDITOR, IF
DIFFERENT FROM THE CURRENT CREDITOR.
, Very truly yours, .
- . ,,---...- -~.~
I
''-{anles T. Shoemaker, Esquire
JTS:je
THIS NOTICE DOES NOT SUPERCEDE YOUR OBLIGATIONS UNDER THE FOREGOING
NOTICE TO PLEAD
638028.2
\
HOURIGAN, KLUGER & QUINN
A PROFESSIONAL CORPORATION
BY: .James T. Shoemaker, Esquire
IDENTIFICATION NO. 63871
LAW OFFICES
600 THIRD AVENUE
KINGSTON, PA 18704
(570) 287-3000
MELLON BANK, N.A., now by assignment
CITIZENS BANK OF PENNSYLVANIA
8 West Market St.
Wilkes-Barre, PA 18701,
ATTORNEY FOR PLAINTIFF
IN THE COURT OF COMMON PLEAS
OF CUMBERLAND COUNTY
Plaintiff
vs.
CIVIL ACTION -- LAW
REPLEVIN
SANG HO KW AK, Individually and d/b/a
Young's Food Market, and YON HW A KW AK :
2208 Chatham Way
Harrisburg, P A 17110,
Defendants
NO.
2004
COMPLAINT
The plaintiff, Mellon Bank, N.A., now by assignment, Citizens Bank of Pennsylvania (the
"Bank"), by and through its counsel, Hourigan, Kluger & Quinn, P.c., complains of the defendant, Sang
Ho Kwak, Individually and d/b/a Young's Food Market ("Mr. Kwak"), R.D. 3, Box 672, Newville, PA
17241, as follows:
63XOI8.!
"
1. The Bank is a Pennsylvania state chartered bank conducting business in the
Commonwealth of Pennsylvania, having an office located at 8 West Market Street, Wilkes-Barre, PA
18711-01Ol.
2. Mr. Kwak is an adult individual with a last known address of2208 Chatham Way,
Harrisburg, P A 17110.
3. Upon information and belief, Yon Hwa Kwak is deceased.
4. On or about May 28, 1999, the Bank made a loan to Mr. Kwak, individually and
d/b/a Say-Ford Supermarket and Yon Hwa Kwak (jointly, the "Kwaks"), in the amount of
$395,000.00, as evidenced by a note, disclosure and security agreement (the "Note"). (A true and
correct copy ofthe Note is attached hereto as Exhibit "A" and incorporated herein by reference.)
5. In order to induce the Bank to make the aforesaid loan, Mr. Kwak granted the
Bank a security interest in , among other things, his equipment, machinery, motor vehicles,
furniture, fixtures, inventory, accounts and contract rights (collectively, the "Collateral"), as
evidenced by a security agreement (the "Security Agreement") and as protected by certain UCC-l
financial statements (the "UCC-l Financial Statements"). (A true and correct copy of the
Security Agreement and the UCC-I Financial Statements is attached hereto as Exhibit "B" and
incorporated herein by reference.)
6. The Note was not assigned, except as stated above.
7. Mr. Kwak defaulted under the terms of the Note by failing to make monthly
payments of principal and interest due under the Note.
6380\8.\
2
"
8. The fair market value of the Collateral is unknown, but is believed to be less
than the amount due and owing the Bank by the Kwaks under the Note.
9. The Bank believes and therefore avers that Mr. Kwak has possession of the
Collateral.
10. Mr. Kwak has failed and refused, despite repeated demands by the Bank, to pay
the balance due under the Note or to deliver possession of the Collateral to the Bank.
11. The balance of the Note as of October 26,2004 was $320,245.20, consisting of
principal in the amount of$311,149.22, accrued interest in the amount of$8,512.74, and late
charges in the amount of$583.24, exclusive of attorneys' fees and costs.
WHEREFORE, the Bank demands judgment in replevin in favor of the Bank: and against
the Kwaks in the amount of$320,245.20, plus interest from October 26,2004, attorneys' fees
and costs, and requests this Court to enter an Order directing the Prothonotary to issue a writ of
possession to the Sheriff directing the Sheriff to seize the Collateral.
Respectfully submitted,
HOURIGAN, KLUGER & QUINN, P.e.
BY: ~.. S -.--
James T. Shoemaker, Esquire
ill No.: 63871
Counsel for the plaintiff, Mellon Bank, N.A.,
now by assignment, Citizens Bank of
Pennsylvania
600 Third Avenue
Kingston, P A 18704
Telephone (570) 287-3000
638018.1
3
:"'::'::':':'Plomi~s6 Note
." ..... ...... .. rv
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. .
.. .
$ 395,000.00
Promise To Pay.. FOR VALUE RECElVED,a~d intending to be legally
bound, UndersIgned, as defined below, promises to pay to:
Mellon Bank, N.A.
("Bank") or its order at
Harrisburg, Pennsylvania
the sum of
Three Hundred Ninety Five Thousand and
00/100
Dollars ($ 395,000.00 ), :with interest on the
outstanding balance from the date of: this Promissory Note
("Note") at the rate(s) ("Contractual Rate(s)") and in accordance
with the repayment schedule specified belqw.
Contractual Rate(s); Repayment Schedules. :
o Interest at a rate per annum:which is %
above Bank's Prime Rate, such rate to change from time to time
as of the effective date of each announce<I change in such Prime
Rate, shall be paid when principal paympnts are due. Principal
shall be paid in consecutive D;lonthly installments of
$ each, commencing on
and continuing thereafter on the : day of each month
with the balance of the indebtedness, if n~t sooner paid, due and
payable on :
,
i
o Interest at a rate per annum which is %
above the CD Rate, such rate to change from time to time as of
the effective date of each change in or re$etting of the CD Rate
shall be paid when principal payments arc; due. Principal shall ~
paid in consecutive m9nthly installments of
$ each, commencing on
, and continuir g thereafter on the
day of each month witt the balance of the
indebtedness, if not sooner paid, clue and payable on
I
I
n The principal balance he~~f, together with all
accrued and unpaid interest, shall be 'paid on
and interest at a rate per annum WhiCtl is % abov~
Bank's P~e Rate, such rate to change o~ time to time as of
the effective date of each announced cha ge m such Prime Rate
shall be paid on the day of eachi month commencing o~
, I
I
I
o The principal balance hereof, together with all
.accrued and unpaid interest, shall be paid on ,
and interest at a rate per annum which ~ % above the
CD Rate, such rate to change from ti me to time as of the
effect~e date of each change in or resetti~ of the CD Rate, shall
be pald on the day of each ronth commencing on
I
o In no event shall the rate charged ,'on this Note exceed
. % per annum.
I
o The principal balance he~ f, together with all
accrued and unpaid interest, shall be pai on
and interest at the rate of % r annum shall be paid
on the day of each m th commencing on
fXI "- S"' :;; ..' 'Yr~.rest shall be calculted at' the rate of
R, c:;n % per annum. Principal and ~terest shall be paid in
17q consecutive monthly installments of
S 3,923.65 . ead>,Ton
:..:- .::t" ., "I <~~~~ - _j:-
. - ..d:;., ,,)). '.- 1
~ :' ~:i.Lo ,-'\ ; ~t~ ~~ 1
, ". _ c ..
~ 'Mellon Bank
Date
~';.-- /;4/11
07/01/1999 ,and continuing thereafter 011 the 1ST
day of ea~h month with the balance of the indebtedness, if not
soo?er paId, due and payable on 06/01/2014 . During any
penod that the Clmtractual Rate(s) is reduced by 0.25% per
annum, as described elsewhere in this Note, installments of
principal and interest shall instead be in the amount of
$ 3,864.70 each. If the reduction in the Contractual
Rate(s) is no longer in effect, the amount of installments of
principal and interest shall return to and be the same as the amount
of such installments prior to the reduction in the Contractual
Rate(s).
Undersigned shall pay Bank concurrently with the execution and
delivery hereof, or Undersigned previously bas paid Bank, an
origination fee of $ 3 I 950 . 00 , to compensate Bank
for its underwriting, origination and administration of the loan
evidenced by this Note. This fee shall be deemed fully earned by
Bank on the date hereof, shall not be refunded, and is in addition
to any other fees, costs or expenses which may be due and payable
hereunder.
,
Unless Undersigned has authorized Bank to take payments out of
a Mellon Olecking Account, as set forth below Undersigned will
mail or deliver to Bank the amount billed by Bank each month.
Undersigned will mail or deliver the payments so that Bank
receives all payments no later than the due date shown on each bill.
o Undersigned authorizes Bank to take all
payments of principal and/or interest and/or other amounts due
under this Note out of Undersigned's Mellon Olecking Account
Number , titled in the name(s) of
, on or
after ~he . ~y of each ~tith. Undersigned will keep a
suffiCient balance m this account to cover the full amounts of all
required payments. At. its option, Bank may terminate
Undersigned's ability to use this service. This authorization shall
remain in effect until revoked by Undersigned in writing or until
the loan evidenced by this Note is paid in full or until Bank has
terminated Undersigned's ability to use this service as the case may
be. Prior to maturity, while this authorization is in effect and
provided that' Undersigned keeps a sufficient balance in this
account to cover the full amounts of all required payments, the
Contractual Rate(s) shall be reduced by 0:25% per annum. This
authorization will be effective even though this Note and the
account may be titled in different versions of Undersigned's name.
If the original principal amount of this Note is in excess of
$10,000.00, or if U~dersigned is a corporation, interest shall be
calculated on the basis of a 360-day year arid actual'days elapsed. If
the original principal amount of this Note is $10,000.00, or less, and
Undersigned is not a corporation, interest shall be calculated on the
basis of a 365-day year or 366-day year, as the case may be, and
actual days elapsed.
"Prime Rate" shall mean the interest rate per annum announced
from time to time by Bank as its Prime Rate. The Prime Rate may
be greater or less than other interest rates charged by Bank to
?ther borrowers. and is not sOlely based or dependent upon the
IOterest rate which Bank may charge any particular borrower or
class of borrowers. .
If a single certificate of deposit is held by Bank as collateral security
for the indebtedness evidenced by this Note, as more fully
d~bed in the Assignment of Deposit Account expressly referring
to thIS Note, "CD Rate" shall mean~he interest rate paid by Bank
on such certificate of deposit (the "~t1ifi~t~"), said CD Rate to be
Page 1 of5
'.~;. <
reset by Bank at each renewal of the Ce(~te. If more than one
certificate of deposit is held by Bank as collateral security for the
indebtedness evidenced by this Note, as more fully described in the
Assignment(s) of Deposit Account expressly referring to this Note,
"CD Rate" shall mean the highest of the interest rates paid by Bank
on such certificates of deposit (the flCertificates"), said CD Rate to
be reset at each renewal of each Certificate.
Late Charge. If any payment (including without limitation any
regularly scheduled payment, balloon payment or final payment) is
not paid within 15 calendar days after it is due, Undersigned will pay
a late charge of the greater of $25.00, or three percent (3%) of the
unpaid portion of the scheduled payment due (regardless of whether
the payment due consists of principal and interest, principal only or
interest only). Such late charge shall be in addition to any increase
made to the Contractual Rate(s) applicable to the outstanding
balance hereof as a result of maturity of this Note or otherwise, as
well as in addition to any other applicable fees, charges and costs.
Default Rate(s); Post-Maturity Rate(s). Upon the occurrence of
any Event of Default (as defined in this Note), at Bank's option,
interest shall accrue at a rate equal to two percent (2%) per annum
above the Contractual Rate(s) until the earlier of the date that such
Event of Default bas been cured or until and including the date of
maturity hereof.
After maturity, whether by acceleration or otherwise, interest shall
accrue at a rate equal to two percent (2%) per annum above the
Contractual Rate(s) until all sums due hereunder are paid. Interest
shall continue to accrue after the entry of judgment (by confession or
otherwise) at the Contractual Rate(s) until all sums due hereunder
and/or under the judgment are paid, except that after maturity or, at
Bank's option, upon the occurrence of any Event of Default, interest
shall accrue at a rate equal to two percent (2%) per annum above
the Contractual Rate(s).
Books and Records; Time of Essence. So long as Bank: is the
holder hereof, Bank's books and records shall be presumed, except
in the case of manifest error, to accurately evidence at aU times all
amounts outstanding under this Note and the date and amount of
each advance and payment made pursuant hereto.
The prompt and faithful performance of all of Undersigned's
obligations hereunder, including without limitation time of payment,
is of the essence of this Note.
_ Security Interest, Setoff and Assignments. To secure all amounts
at any time owing or payable under this Note and Undersigned's
obligations hereunder, as well as to secure all costs and expenses
_incurred by Bank in the collection or enforcement of this Note or the
protection of any collateral securing this Note (including without
limitation aU advances made by Bank for taxes, levies, insurance,
filing fees, and repairs to or maintenance of said collateral),
Undersigned hereby grants to Bank a security interest in, lien upon,
and right of setoff against, all deposit accounts, credits, securities,
moneys, or other property of Undersigned which may at any time be
in the possession of, delivered to, or owed by Bank, including any
proceeds or returned or unearned premiums of insurance, and the
proceeds of all the foregoing property. Other property, real or
personal, may secure this Note, as set forth in other documents and
agreements.
Undersigned aclcnowledges and agrees that Undersigned shall
renew, or cause to be renewed, the Certificate(s), if any, until the
indebtedness evidenced by this Note has been paid in full.
Undersigned furthec agrees that Undersigned will execute, or will
cause to be executed, upon demand by Bank any financing
statements or other documents, including, without limitation,
additi<?fi3l Assignments of Deposit Account, which Bank may deem
necessary or desirable to evidence, perfect or maintain perfection of
the security interests created in the Certificate(s) and any renewals,
replacements and substitutions thereof.
;,
I
Additional Terms and Conditions
1. Covenants. Undersigned oovenants and agrees that until all
indebtedness evidenced hereby bas been paid in full, Undersigned
shall: (a) maintain at all times a pooitive tangible net worth; (b) (1)
have all Environmental Permits necessary for the conduct of each
of Undersigned's businesses and operations, (2) conduct each of
Undersigned's businesses and operations in material compliance
with all applicable Environmental Laws and Environmental
Permits, (3) not permit to exist any event or condition that requires
or is likely to require Undersigned under any Environmental Law
to pay or expend funds by way of fines, judgments, damages,
cleanup, remediation or the like in an aggregate amount, the
payment of which could reasonably be expected to interfere
substantially with normal operations of Undersigned or materially
adversely affect the financial ooodition of Undersigned, (4) notify
Bank promptly upon becoming aware of any pending or threatened
proceeding, suit, investigation. aUegation or inquiry regarding any
alleged event or condition that, if resolved unfavorably to
Undersigned or any of Undersigned's subsidiaries or affiliates, is
likely to cause Undersigned or any of its subsidiaries or affiliates
under any Environmental Law to payor expend funds by way of
fines, judgments, damages, cleaning, remediation or the like, and
(5) provide at Undersigned's cost, upon request by Bank,
certifications, documentation, copies of pleadings and other
information regarding the above, aU in form and content
satisfactory to Bank; (c) conduct each of Undersigned's businesses
and operations in material compliance with aU federal, state or local
laws, statutes, regulations, rules, ordinances, court or administrative
orders or decrees, or private agreements or interpretations, now or
hereafter in existence, direct1y or indirect1y relating to or affecting
Undersigned's businesses or operations; (d) use the proceeds of the
loan evidenced hereby only for business purpose(s) specified to
Bank at or prior to the execution hereof; (e) promptly notify Bank
in writing of any change in Undersigned's residence or Chief
Executive Office; (f) purchase and maintain policies of insurance
(including flood insurance) to protect against such risks and
casualties, and in such amounts, as shaU be required by Bank
and/or applicable law, wbicb policies shall (1) be in form and
substance satisfactory to BanIc, (2) at Bank's option, designate
Bank as loss payee and/or as additional insured, and/or contain a
lender's loss payable endorsement, and (3) be (or certificates
evidencing same shall be) deposited with Bank; (g) (1) maintain
and keep proper records and books of account in conformance with
generally accepted accounting principles applied on a consistent
basis in which full, true and correct entries shall be made of all
Undersigned's dealings and business affairs, (2) provide to Bank at
Undersigned's cost, upon Bank's request, financial or other
information, documentation or certifications (including without
limitation annual and periodic balance sheets and income
statements, personal financial statements, federal income tax
returns, inventory reports (including a description of raw materials,
finished goods, and the aging thereof, as applicable), and accounts
receivable and payable aging reports), aU in form and content
satisfactory to Bank, and (3) permit, upon request by Bank, any of
the officers, employees or representatives of Bank to visit and
inspect any of Undersigned's properties and locations and to
examine its books and records and discuss the affairs, finances and
accounts of Undersigned with representatives thereof, as often as
Bank may request; (h) provide additional collateral at such times
and having such value as Bank may request, if Bank shall have
reasonable grounds for believing that the value of the collateral
securing the indebtedness evidenced by this Note bas become
iosufficieot to &ealrc said indebtedn~; (i) pay, upon demand by
Bank, (1) all costs and fees pertaining to the filing of any financing,
continuation or termination statements, mortgages, satisfaction
pieces, judgments and any other type of document which Bank
deems necessary or desirable to be filed with regard to security
interests which secure the. indebtedness evidenced hereby,
regardless of whether such seqirity interests were granted by
Undersigned, and (2) aU costs and expel}SCS incurred by Bank in
Page 20f5
. '.~~j, '
, "
connection with any collateral securing this Note (including without
limitation all advances made by Bank for taxes, levies, insurance,
repairs to or maintenance of said collateral, appraisal or valuation
of said collateral, and determination of flood hazard), regardless of
whether such collateral is owned by Undersigned; and (j) pay, upon
demand by Bank, all amounts incurred by Bank in connection with
any action or proceeding taken or commenced by Bank to enforce
or collect this Note, including attorney's fees equal to the lesser of
(1) 20% of the outstanding principal balance and interest then due
hereunder or $500.00, whichever is greater, or (2) the maximum
amount permitted by law, plus attorney's costs and aU costs of legal
proceedings.
2. Events of Default. The occurrence of any of the following shall
constitute an ftEvent of Defaultft hereunder: (a) default in payment
or performance of any of the indebtedness or obligations evidenced
by this Note or any other evidence of liability of Undersigned to
Bank; (b) the breach by any Obligor (defined as Undersigned and
each surety or guarantor of any of Undersigned's liabilities to Bank
as well as any person or entity granting Bank a security interest in
property to secure any indebtedness) of any covenant contained in
this Note or in any separate security, guarantee or suretyship
agreement between Bank and any Obligor, the occurrence of any
default hereunder or under the terms of any such agreement, or
the discovery by Bank of any false or misleading representation
made by any Obligor herein or in any such agreement or in any
other information submitted to Bank by any Obligor; (c) with
respect to any Obligor: (1) death or incapacity of any individual or
general partner, or (2) dissolution of any partnership or
corporation; (d) any assignment for the benefit of creditors by any
Obligor; (e) insolvency of any Obligor; (1) the filing or
commencement of any petition, action, case or proceeding,
voluntary or involuntary, under any state or federal law regarding
bankruptcy, insolvency, reorganization, receivership or dissolution,
including the Bankruptcy Reform Act of 1978, as amended, by or
against any Obligor; (g) default under the tenus of any lease of or
mortgage on the premises where real or personal property securing
the indebtedness evidenced by this Note is located; (h) the
garnishment, tax assessment, attachment or taking by
governmental authority or other creditor of any property of any
Obligor which is in Bank's possession or which constitutes security
for any indebtedness evidenced hereby; (i) entry of judgment
against any Obligor in any court of record; (j) the assessment
against any Obligor by the 'Internal Revenue Service or any other
federal, state or local taxing authority of unpaid taxes, or the
issuance of a 1e\Y or the entering of a lien in connection therewith;
(k) change in control of or transfer of any interest in any Obligor
- (other than an Obligor who is an individual); (I) a determination by
Bank, which determination shall be conclusive if made in good
faith, that a material adverse change has occurred in the financial
- or business condition of any Obligor; (m) the maturity of any life
insurance policy held as collateral for the indebtedness evidenced
by this Note by reason of the death of the insured or othetwise; or
(n) default by Undersigned in the payment of any indebtedness of
Undersigned or in the performance of any of Undersigned's
obligations (other than indebtedness or obligations evidenced by
this Note or any other evidence of liability of Undersigned to Bank)
and such default shall continue for more than any applicable grace
period.
3. Acceleration; Remedies. Upon the occurrence of any Event of
Default: (a) all amounts due under this Note, including the unpaid
balance of principal and interest hereof, shall become immediately
due and payable at the option of Bank, without any demand or
notice whatsoever; and (b) Bank may immediately and without
demand exercise any of its rights and remedies granted herein,
under applicable law, or which it may otherwise have, against
Undersigned or otherwise. Notwithstanding any provision to the
contrary contained herein, upon the occurrence of an Event of
Default as described in Section 2(1) hereof, aU amounts due under
this Note, including w....Jut limitation the unpaid balance of principal
and interest hereof, shall become immediately due and payable,
without any demand, notice or further action by Bank whatsoever,
and an action therefor shall immediately accrue.
4. Bank's Rights. Undersigned hereby authorizes Bank, and Bank
shaH have the continuing right, at its sole option and discretion, to: (a)
do anything which Undersigned is required but fails to do, and in
particular Bank may, if Undersigned fails to do so, obtain and pay any
premiums payable on any policy of insurance required to be obtained
or maintained hereunder; (b) direct any insurer to make payment of
any insurance proceeds, including any returned or unearned
premiums, directly to Bank, and apply such moneys to any
indebtedness or other amount evidenced hereby in such order or
fashion as Bank may elect; (c) pay the proceeds of the loan evidenced
by this Note to any or all of the Undersigned individually or jointly, or
to such other person(s) as any of the Undersigned may direct, except
to the extent othetwise provided in Section 6 hereof; and (d) add any
amounts paid or incurred by Bank under Section l(i), Section 1(j) or
Section 4(a) to the principal amount of the indebtedness evidenced
by this Note.
S. Authorization to Borrow. Undersigned hereby represents, warrants,
certifies and covenants as follows:
(a) If Undersigned is a corporation, that the person(s) signing below
hold(s) the office(s) indicated below (and continue to hold such
office(s) until Bank has received notice to the contrary in writing
from Undersigned), and that the Board of Directors of Undersigned
has adopted resolutions providing that: (1) the person(s) executing
and delivering this Note on behalf of Undersigned is/are authorized
(i) to incur indebtedness and obligations on behalf of Undersigned by
borrowing or making other financial arrangements with Bank from
time to time, upon terms and conditions as they in their sole
discretion deem desirable, (ii) to make, execute and deliver
promissory notes, letter of credit agreements, security agreements,
assignments, mortgages and all other documents required by Bank in
connection with the incurring of indebtedness or obligations, and (Iii)
to assign and pledge as collateral secUrity for any such indebtedness
or obligations, now or hereafter existing, any real or personal
property of Undersigned; (2) the actions of anyone or more officers
of Undersigned in borrowing money from Bank heretofore for the
account of Undersigned, in assigning or pledging any of
Undersigned's property for the payment thereof, or in doing any
other act in connection therewith are hereby ratified, confirmed and
approved; and (3) said resolutions shall have the force of a continuing
agreement with Bank, and shall be binding upon Undersigned until a
resolution amending them shall have been duly and legally adopted
and Bank furnished a certified copy thereof.
(b) If Undersigned is a partnership, that (1) Undersigned's name
shown below is a trade name of Undersigned's firm used in the
conduct"of an unincorporated business owned entirely by the persons
signing this Note on behalf of said partnership; (2) the partners
executing and delivering this Note are authorized (i) to incur
indebtedness and obligations on behalf of Undersigned by borrowing
from or making other financing or credit accommodations with Bank
from time to time, upon such terms and conditions as they in their
sole discretion deem desirable, (ii) to make, execute, and deliver
promissory notes, letter of credit agreements, security agreements,
assignments, mortgages and all other documents required by Bank in
connection with the incurring of indebtedness or obligations, and (Iii)
to assign and p~~ge as collateral security for any such indebtedness
or obligationS;'oaw or hereafter existing, any real or personal
property of Undersigned; (3) the actions of anyone or more partners
of Undersigned in borrowing money from Bank heretofore for the
account of Undersigned, in assigning or pledging any of
Undersigned's property for the payment thereof, or in doing any
other act in connection therewith _.acc hereby ratified, confirmed, and
approved; (4) notwithstanding any modification or tenninatlOn of the
.~ Page30f5
.".',," ,
.~1',
power of any of the partners to represent said firm, whether by
e~iration of the partnership agreement, by death or retirement
of any partner, or the accession of one or more new partners, or
otherwise, and notwithstanding any other notice thereof Bank
may receive, this authority shall continue to be binding upon each
of the Undersigned individually and upon their legal
representatives, and upon Undersigned and its successors, until
Bank has received notice in writing to the contrary signed by one
of the Undersigned or by Undersigned's duly authorized agent
(Receipt of such notice will not relieve any partner of any liability
arising from obligations incurred prior to Bank's receipt of such
notice.), and (5) nothing herein shall be construed to limit the
rights granted to a partner by law or by the partnership
agreement, but all rights granted herein shall be in addition to
such rights.
6. Definitions; Miscellaneous Provisions. (a) Undersigned waives
(except where requested hereby) notice of action taken by Bank;
and hereby ratifies and confirms whatever Bank: may do. Bank
shall be entitled to exercise any right notwithstanding any prior
exercise, failure to exercise or delay in exercising any such right.
(b) Bank shall retain the lien of any judgment entered on account
of the indebtedness evidenced hereby. Undersigned warrants that
Undersigned has no defense whatsoever to any action or
proceeding that may be brought to enforce or realize on any such
judgment. (c) If any provision hereof shall for any reason be held
invalid or unenforceable, no other provision shall be affected
thereby, and this Note shall be construed as if the invalid or
unenforceable provision had never been a part of it. The
descriptive headings of this Note are for convenience only and
shall not in any way affect the meaning or construction of any
provision hereof. (d) The rights and privileges of Bank contained
in this Note shall inure to the benefit of its successors and assigns,
and the duties of Undersigned shall bind aU heirs, personal
representatives, successors and assigns. (e) This Note shall in aU
respects be governed by the laws of the state in which this Note is
payable (except to the extent that federal law governs). (f)
Undersigned hereby irrevocably appoints Bank and each holder
hereof as Undersigned's attorney-in-fact to endorse
Undersigned's name to any draft or checlc which may be payable
to Undersigned in order to collect the proceeds ofaoy insurance
or any returned or unearned premiums in respect of any policies
of insurance required to be maintained hereunder. Undersigned
hereby acknowledges that this appointment of Bank and each
holder hereof as attorney-in-fact is irrevocable and is coupled
with an interest. (g) Undersigned assigns to Bank all moneys
which may become payable on any policy of insurance required to
be maintained under this Note, Including any returned or
unearned premiums. (h) "Environmental Law" means any
_ federal, state or local environmental law, statute, regulation, rule,
ordinance, court or administrative order or decree, or private
agreement or interpretation, now or hereafter in existence,
relating to the manufacture, distribution, labeling, use, handling,
collection, storage, treatment, disposal or otherwise of Hazardous
Substances, or in any way relating to pollution or protection of
the environment or public health. (i) "Environmental Permit"
means any federal, state or local permit, license or authorization
issued under or in connection with any Environmental Law. (j)
#'.
.'-
"Hazardous Substances" means petrolewn and petroleum
products, radioactive materials, ~ radon, lead
containing materials, sewage or any material'l or substances
defined as or included in the definition of 'bazardous wastes,"
"hazardous substances," "hazardous materials," "toxic
substances," "hazardous air pollutants," "toxic pollutants,"
"pollution," or terms of similar meaning, as thooe terms are
used in any Environmental Law. (k) "aller Executive Office"
means the place from which the main part of the business
operations of an entity is managed. (I) "Undersigned" refers
individually and collectively to all makers of this Note,
including, in the case of any partnership, all general partners of
such partnership individually and collectively, whether or not
such partners sign below. Undersigned sbaI each be jointly and
severally bound by the terms hereof, and, with respect to any
partnership executing this Note, each geoeraI partner shall be
bound hereby both in such general partner's individual and
partnership capacities.
7. Direction to Pay Proceeds.Undersigned hereby authorizes and
directs Bank to pay the proceeds of this Note by: . . '1
!'t crediting Account Number 000- r.o z 7 '1 if '1y I :tI {p I; 2. B /. i
in the name 0511Nb "0 ~ OrJ JfWfr KW rrrC.
in theamountof$ I . '. .1 tt/
I R 5 q 0/' E-t./#/t?'j mtllO
'1Z)paying rn.0~ :#lPj' 2_. IDJ-fJi'Y-j7.&cjS--
/'\. AItJ.L- :i'I-3!I,!,.(J?36 J?/qq Vz.q 2'-'
I
the amount of $ .
~ying f)CtJtF/Cf)L! 1/;/19tj. tp'l
the amount of $
8. Affidavit of Business Loan. (Ibis Affidavit is not applicable if
Undersigned is a corporation.) Undersigned, being duly
authorized, depose(s) and say(s) under penalty of perjury that
Undersigned:
(a) Is/Are engaged in business 38&1 Owner(s), 0 General
Partner(s) of: (name and nature of business)
YOUNG' Ii FOOD MARKET AND .
SAY-F~.{> SUPERMARKET ~ (, C, f'-
FOOD MARKET
(b) Hereby make(s) application to Bank for a loan, the
proceeds of which will be utilized for the purpose(s) of
REFINANCE MELLON DEBT, OTHER DEBT
CONSOLIDATION & EQUIPMENT & INVOICE
PURCHASE
(c) Exercise(s) actual control over the managerial decisions of
the business.
(Remainder of page intentionally left blank)
.'~, ' Page 4 of 5
"..)1, r
.,' "
9. Confession of Judgment. UNDERSIGNED HEREBY
EMPOWERS 1HE PR01HONOTARY OR ANY
ATIORNEY OF ANY COURT OF RECORD TO APPEAR
FOR UNDERSIGNED AND TO CONFESS JUDGMENT
AS OFTEN AS NECESSARY AGAINST UNDERSIGNED
IN FAVOR OF TIlE HOLDER HEREOF, REGARDLESS
OF WHEnIER ANY EVENT OF DEFAULT HAS
OCCURRED, AT ANY TIME AND AS OF ANY TERM,
FOR 11IE OUTSTANDING PRINCIPAL BALANCE
HEREOF PLUS INTEREST DUE UNDER TIlE TERMS
HEREOF AND ALL OTIIER AMOUNTS DUE
HEREUNDER, TOGE1HER WITH COSTS OF LEGAL
PROCEEDINGS AND AN A 1TORNEY'S COMMISSION
EQUAL TO nIE LESSER OF CA) 20% OF HIE
OlITSTANDING PRINCIPAL BAlANCE AND
INTEREST THEN DUE HEREUNDER OR $500.00,
WHICHEVER IS GREATER, OR Cll) TIlE MAXIMUM
AMOUNT PERMITTED BY LAW, WITII RELEASE OF
ALL ERRORS. UNDERSIGNED WAIVES ALL LAWS
EXEMPTING REAL OR PERSONAL PROPERTY
FROM EXECUTION.
By signing this Note, Undersigned agrees to all terms of the Note and swears, under penalty of perjury (as set forth in
18 Pa.e.S. ~904, If governed by Pennsylvania law), to the Amdavit of Business Loan (If completed) set forth In
Section 8 of this Note.
Signatures
Witness the due execution hereof under seal.
x
Witness:
x
Mellon Bank, NA
Mellon Bank (DE) National Association
C[A543 Rev.(lWJ6) L.c. 9/96lD 9/96
0275 P 1~-3823 1 cl4543 (01)
052199.1605
I~-dU{ll: . ~
( X ) , . I
~G HU KW . , i' UUAL ~U
DB/A . U ' S FOOD MARKET AND . .., . ~_
tJP~T S'"H-"/-F~-..:z,-J <::;,;../'1=z'"lp;..;lc,c /
672 B ERVILLE ROAD }'j/ c-J/
NEWVILLE, PA 17241 .~ l~
Individual:
~UN tV~AK jJUP(L {~~ (Seal)
672~tOSERVILLE ROAD
NEWVILLE, PA 17241
..~, .
Page 5 of 5
....}r
Security Agr~eme~t . 8 . Mellon Bank
~.. ,~.'II I" ,'" "~" " ',1"" :.''''illl~l~''. ".~ . ~ '.~ ~~~ " I, ~ ," .:~~'" . I ." .," '!I. i "'~' ",~;" _,'" .~, '. ~ I " ~II~ "oo'I~IM ~ , oj I ,t1~.. ~..." ".~" /"i.~ "~lt~, I ~,"'1 '., : ~". y" j. ,.' ^'II~~ ~'" ~fI;ta It" ,,'!'; iN \/, ~....', ; ,,'..... ..~ .~~ ~'" ,...I"~.~'..II".,,: ,..... ".....,.., .
For value ~ived, and intending to be legally bound, in
consideration of a loan or other credit accommodation in the
amount of
Three Hundred Ninetv Five Thousand and
00/100
Dollars ($ 395,000.00 ) made by
Mellon Bank. N.A.
("Bank") to
SANG HO KWAK, INDIVIDUALLY AND
D/B/A:iONG'S FOOD MA~KRVD
SAY- SUPERMARKET "'7
YON HW l{W1',T{
("Borrower(s)"), said obligation evidenced by a
PROMISSORY NOTE
dated ~S--;;;"fJ. '1';/ , (the "Note")
Undersigned, intending to be legally bound, hereby agrees as
follows:
1. Security Interest Undersigned hereby grants to Bank a security
interest in the following property now owned or hereafter acquired
by Undersigned:
(Certain terms used herein are defined in Section 13 below.)
Iil C:l~ V /6.) aU equipment, wherever located, including
mac~, m{,t~r vehicles, furniture and fixtures;
Iil c./ ~.f;1l inventory (whether held for sale or lease or to
be 1Ufuis~ed under contracts of service), raw materials, work in
process, and materials used or consumed in the conduct of
Undersigned's business, and all books, records, invoices or other
documents which describe or evidence the same;
Iil <:"'~ Y~ll accounts, contract rights, general intangibles,
chart~r, chases in action, instruments, documents (including
all documents of title and warehouse receipts) and all rights to the
payment of money, however evidenced or arising;
o (d) all securities; all cash, stock or other dividends or
distributions paid upon or made in respect of such securities in any
form; all securities received in addition to or in exchange for such
securities; and all subscription rights incident to such securities;
o (e) all farm products; and
o (f) all property or rights described below under the
caption "Description of Collateral."
Description of Collateral (Give a sufficiently detailed description
to identify each item).
In addition to the foregoing, Undersigned: (1) grants to Bank a
security interest in all accessions, parts, accessories, attachments and
appurtenances in any way used with, attached or related to, or
installed in, or intended to be so used, attached, related to or installed
in, any equipment or inventory constituting "Collateral" hereunder;
(2) grants to Bank a security interest in all substitutions for, renewals
of, improvements, replacements and additions to, and the products
and proceeds (cash and non-cash) of all of the foregoing property
and any insurance policies relating thereto; (3) grants to Bank a
security interest in, lien upon, and right of setoff against, all deposit
accounts, credits, securities, moneys or other property of
Undersigned which may at any time be in the possession of, delivered
to or owed by Bank, including any proceeds or returned or unearned
premiums of insurance. and the proceeds (cash and non-cash) of all
the foregoing property; and (4) assigns to Bank all moneys which may
become payable on any policy of insurance required to be maintained
under this Agreement, including any returned or unearned
premiums.
All such property subject to Bank's security interests described in this
Section 1 is referred to herein collectively as the "Collateral." With
respect to Section 4 hereunder, the term "Collateral" shall not include
the property described in Subsection (3) of this Section 1.
All security interests in Collateral shall be deemed to arise and be
perfected under and governed by the Uniform Commercial Code,
except to the extent that such law does not apply to certain types of
transactions or Collateral, in which case applicable law shall govern.
2. Obligations Secured. The Collateral shall secure the following
obligations ("Obligation(s)"): (a) all amounts at any time owing or
payable under the Note, and any other indebtedness, liability or
obligation of Borrower( s) or of Undersigned to Bank, now existing or
Page 1 of 4
hereafter incurred, whether direct or indirect, absolute or
contingent, individual, joint or several, now due or to become due,
and whether owed as drawer, maker, endorser, guarantor, surety or
otherwise; (b) all costs and expenses incurred by Bank in the
collection of the same; and (c) all future advances made by Bank
for taxes, levies, insurance, and repairs to or maintenance of the
Collateral. Provided, however, the interests assigned hereby shall
not secure any obligation (other than the Obligation evidenced by
the Note) which is defined as "consumer credit" by Federal Reserve
Board Regulation Z, 12 c.F.R.f226.1 et seq., and is not exempted
from the application of that Regulation.
3. Representations. Undersigned hereby makes the following
representations and warranties which shall be true and correct on
the date of this Agreement and shall continue to be true and
correct at the time of the creation of any Obligation secured hereby
and until the Obligations secured hereby shall have been paid in
full: (a) Undersigned's residence and/or Chief Executive Office, as
the case may be, is as stated below or as otherwise stated in a
subsequent written notice delivered to Bank pursuant to the terms
hereof, (b) Undersigned has good and marketable' title to the
Collateral subject to no security interest, lien or encumbrance,
except as indicated to the contrary to Bank in writing prior to the
execution of this Agreement; and (c) if any of the Undersigned is
an individual, each such individual is at least 18 years of age and
under no legal disability or incapacity.
4. Covenants. Undersigned covenants and agrees that until the
Obligations secured hereby have been paid in full Undersigned
shall: (a) not permit the use of the Collateral for any illegal
purposes; (b) promptly notify Bank in writing of any change in its
or their residence or Chief Executive Office; (c) not permit removal
of any of the Collateral from county to county or state to state
unless Bank has given written consent in advance; (d) maintain at
all times good and marketable title to all Collateral, free and clear
of any security interest, lien or encumbrance (except as to which
Bank may grant its prior written consent pursuant to Section 4 (e)
below), and defend such title against the claims and demands of all
persons; (e) not (1) affix the Collateral or permit the Collateral to
be affixed to real estate or to any other goods, (2) lease, mortgage,
pledge or encumber the Collateral, (3) permit the Collateral's
identity to be lost (4) permit the Collateral to be levied upon or
attached under any legal process, (5) permit or cause any security
interest or lien to arise with respect to the Collateral (other than
those created in this Agreement), or (6) except Collateral
customarily sold by Undersigned in the ordinary course of business
and so sold in such manner for full value, sell, consign, part with
possession of, or otherwise dispose of the Collateral or any rights
therein, except as Bank may grant its prior specific written consent
with respect to acts or events specified in Subsections (1), (2), (5)
or (6) hereof; (f) maintain the Collateral in good condition and
repair, excepting only reasonable wear and tear; pay and discharge
all taxes and other levies on the Collateral. As well as the costs of
repair and maintenance thereof; and furnish to Bank upon request
documentary proof of payment of such taxes, levies and costs; (g)
purchase and maintain policies of insurance (including flood
insurance) to protect the Collateral or other property against such
risks and casualties, and in such amounts, as shall be required by
Bank and/or applicable law, which policies shall (1) be in form and
substance satisfactory to Bank, (2) at Bank's option, designate
Bank as loss payee and/or as additional insured, and/or contain a
lender's loss payable endorsement, and (3) be (or certificates
evidencing same shall be) deposited with Bank; (h) execute, upon
demand by Bank, any financing statements or other documents
which Bank may deem necessary to perfect or maintain perfection
of the security interest(s) created in this Agreement and pay, upon
demand by Bank, (1) all costs and fees pertaining to the filing of
any financing, continuation or termination statements, mortgages,
satisfaction pieces, judgments and any other type of document
which Bank deems necessary or desirable to be filed with regard to
the Collateral, and (2) all costs and expenses incurred by Bank in
connection with the Collateral (including without limitation all
advances made by Bank for taxes, levies, insurance, repairs to or
maintenance of the Collateral, appraisal or valuation of said
collateral, and determination and monitoring of flood hazard status);
(i) procure, and cause a statement of Bank's security interest to be
noted on, any certificate of title issued or required by law to be issued
with respect to any motor vehicle constituting part of the Collateral,
and cause any such certificate to be delivered to Bank within 10 days
from the later of the date of this Agreement or the date of the
issuance of such certificate; (j) pay, upon demand by Bank, all
amounts incurred by Bank in connection with any action or
proceeding taken or commenced by Bank to enforce this Agreement
or protect, insure or realize upon the Collateral, including attorney's
fees equal to the lesser of (a) 20% of the amount of the Obligations
secured hereby then due or $500.00, whichever is greater, or (b) the
maximum amount permitted by law, and attorney's costS and aU costs
of legal proceedings; (k) reimburse Bank on demand for any
advances made by it for payment of (1) premiums to insure the
Collateral, or (2) taxes, levies or costs, together with interest thereon
at the highest rate allowed by law; and (1) immediately notify Bank if
any of Undersigned's accounts arise out of contracts with the United
States or any department, agency or instrumentality thereof, and
execute any instruments and take any steps required by Bank in
order that all moneys due and to become due under any such
contracts shall be assigned to Bank and notice thereof given to the
United States under the Federal Assignment of Oairns Act.
5. Events of Default. The occurrence of any of the following shall
constitute an "Event of Default" hereunder: (a) default (i) in the
performance of any covenant hereunder or (ii) under any other
instrument or document evidencing or securing the Obligations; (b)
any warranty, representation or statement made or furnished to
Bank by or on behalf of the Undersigned proving to have been false
in any material respect when made or furnished; (c) loss, theft,
substantial damage, destruction, sale or encumbrance to or of any of
the Collateral, or the making of any levy, seizure or attachment
thereof or thereon; or (d) death, dissolution, termination of
existence, insolvency or business failure of the Undersigned,
appointment of a receiver for Undersigned or any part of the
Collateral, assignment for the benefit of creditors or the
commencement of any proceeding under any bankruptcy or
insolvency law by or against the Undersigned.
6. Remedies of Bank. Upon the occurrence of any Event of Default:
(a) Undersigned shall, upon demand by Bank, assemble the
Collateral and promptly make it available to Bank at any place
designated by Bank which is reasonably convenient to both parties;
(b) Bank may immediately and without demand exercise any of its
rights and remedies granted herein, under applicable law, or which it
may otherwise have, against the Undersigned, the Collateral, or
otherwise; and (c) Bank may, without notice or process of any sort,
peaceably enter any premises where any Collateral is located and take
possession, retain and dispose of such Collateral and all property
located in or upon it. Bank shall have no obligation to return any
such property not constituting Collateral unless Bank actually
receives Undersigned's written request therefor specifically
describing such property within 72 hours after repossession thereof.
7. Bank's Rights. Undersigned hereby authorizes Bank, and Bank
shall have the continuing right, at its sole option and discretion, to:
(a) do anything which Undersigned is required but fails to do
hereunder, and in particular Bank may, if Undersigned fails to do so,
(1) insure or take any reasonable steps to protect the Collateral, (2)
pay all taxes, levies, expenses and costs arising with respect to the
Collateral, or (3) pay any premiums payable on any policy of
insurance required to be obtained or maintained hereunder; (b)
direct any insurer to make payment of any insurance proceeds,
including any returned or unearned premiums, directly to Bank, and
apply such moneys to any Obligations evidenced or secured hereby in
such order or fashion as Bank may elect; and (c) inspect the
Collateral at any reasonable time.
PllOP ? nf .d.
In addition to the rights given to Bank in this Agreement, Bank
shall have all the rights and remedies of a secured party under any
applicable law, including without limitation, the Uniform
Commercial Code.
8. Additional Representations. In addition to the representations
and warranties set forth elsewhere in this Agreement, Undersigned
hereby makes the following representations and warranties which
shall be true and correct on the date of this Agreement and shal1
continue to be true and correct at the time of any borrowing under
any line of credit with Bank and until the Obligations secured by
this Agreement shall have been paid in full: (a) each account: (1)
represents an amount actually owing to Undersigned by the
account debtor (less discounts allowed for prompt payment); (2) is
valid and enforceable according to Its terms without further
performance of any kind; (3) is not evidenced by any instrument or
chattel paper unless the original of such instrument or chattel
paper has been deposited with Bank; and (4) is not evidenced by
any judgment unless such judgment has been assigned of record to
Bank; and (b) the locations of al1 of Undersigned's places of
business are as stated below, and the inventory and records of the
accounts are kept at the places indicated below.
9. Additional Covenants. In addition to the covenants set forth
elsewhere in this Agreement, Undersigned covenants and agrees
that until the Obligations secured by this Agreement have been
paid in full Undersigned shall: (a) immediately notify Bank in
writing in the event that any of the following occurs: (1) any
account is or- becomes entitled or eligible for discount for prompt
payment; (2) any account debtor has or may have any defense to
payment of, or right of setoff, counterclaim, or recoupment against
any account; (3) any account represents an amount which is
disputed by the aerount debtor or the payment of which is in any
way contingent or conditional; or (4) the desirability, usefulness, or
marketability of any of the inventory has been in any way reduced
or impaired by reason of physical deterioration, technical
obsolescence, or otherwise; (b) keep accurate and complete books
and records in accordance with generally accepted accounting
principles and. at Undersigned's expense. promptly furnish Bank
such information and documents relating to the Collateral at such
times and in such form and detail as Bank may request, including
without limitation: (1) copies of invoices or other evidence of
Undersigned's accounts and schedules showing the aging,
identification, reconciliation, and col1ection thereof; (2) evidence of
shipment and receipt of goods and the performance of services or
obligations covered by accounts; and (3) reports as to
Undersigned's inventory and purchases, sales, damage, or loss
thereof; all of the foregoing to be certified by authorized officers or
other employees of Undersigned; (c) not change any location listed
below regarding places of business, inventory and records of
accounts without Bank's prior written consent; (d) at
Undersigned's expense. diligently collect the accounts on behalf of
Bank until such time as Bank exercises its right to directly collect
the accounts, and upon notice from Bank. deliver all proceeds of
accounts to Bank forthwith upon receipt. in the original form in
which received; (e) immediately upon Bank's request, open a cash
collateral account ("Cash Collateral account") at Bank and deposit
therein all cash proceeds of collections on the accounts; (f)
immediately upon Bank's request, give the Bank assignments, in
form acceptable to Bank, of specific accounts or groups of accounts
and specific general intangibles, and immediately repay the amount
loaned against any account so assigned to the Bank if the contract
with the account debtor is breached, cancelled or terminated; (g)
immediately upon Bank's request, furnish Bank with all
information received by Undersigned regarding the financial
condition of any account debtor. except to the extent prohibited by
law; (h) immediately deliver to Bank all instruments. documents or
chattel paper representing any of the Collateral and immediately
assign of record to Bank any judgment representing any account
constituting Col1ateral; and (i) immediately upon Bank's request,
mark its records evidencing its accounts in a manner satisfactory to
Bank so as to show which accounts have been assigned to Bank.
10. Additional Rights of Bank. In addition to the Bank's rights set
forth elsewhere in this Agreement, Undersigned hereby authorizes
Bank, and Bank shalt have the continuing rights at any time, whether
or not any default has occurred under this Agreement, and at its sole
option and discretion, without notice, to: (a) take over and collect any
or all of the accounts and to take any other action pursuant to its
power of attorney granted herein; (b) exercise absolute and exclusive
dominion and control over al1 funds deposited in the Cash ColIateral
account; apply any funds therein against any Obligations; and charge
to any deposit account ot Undersigned any Item ot payment credited
to the Cash ColIateral account which is subsequently dishonored; (c)
at any reasonable time, through its authorized agents and employees,
inspect, audit, and verify the accounts and the inventory, review
Undersigned's books and records, and copy or make excerpts from
any document; and (d) verify accounts with debtors in the name of
Undersigned, Bank, or Bank's designee.
11. Miscellaneous Provisions. (a) Undersigned waives protest of all
commercial paper at any time held by Bank on which Undersigned is
in any way liable, notice of nonpayment at maturity of any and all
accounts. and (except where requested hereby) notice of action taken
by Bank; and hereby ratifies and confirms whatever Bank may do.
The rights and remedies of Bank hereunder are cumulative. Bank
shall be entitled to exercise any right notwithstanding any prior
exercise, failure to exercise or delay in exercising any such right. (b) If
any provision hereof shall for any reason be held invalid or
unenforceable, no other provision shall be affected thereby, and this
Agreement shall be construed as if the invalid or unenforceable
provision had never been a part of it. The descriptive headings of this
Agreement are for convenience only and shall not in any way affect
the meaning or construction of any provision hereof. (c) The rights
and privileges of Bank contained in this Agreement shall inure to the
benefit of its successors and assigns, and the duties of Undersigned
shall bind all heirs, personal representatives. successors and assigns.
(d) No modification of this Agreement, nor any waiver of any
provision hereof, shall be effective or enforceable unless set forth in
writing and signed by an officer of Bank. (e) This Agreement shall in
all respects be governed by the laws of the state where the
Obligations are payable as reflected in the document(s) evidencing
such Obligations (except to the extent that federal law governs), and
all references to the Uniform Commercial Code shalI be deemed to
refer to the Uniform Commercial Code as enacted in such state. (f)
Undersigned hereby irrevocably appoints Bank and each holder
hereof as Undersigned's attorney-in-fact to: (1) endorse
Undersigned's name to any draft or check which may be payable to
Undersigned in order to collect the proceeds of any. insurance or any
returned or unearned premiums in respect of any policies of
insurance required to be maintained hereunder; and (2) take any
action Bank deems necessary to perfect or maintain perfection of any
security interest granted to Bank herein, including executing any
document on Undersigned's behalf. (g) Undersigned shall bear the
risk of loss of. damage to, or destruction of the Collateral, and
Undersigned hereby releases Bank from all claims for loss or damage
to the ColIateral caused by any act or omission on the part of Bank,
except for willful misconduct. (h) The prolhpt and faithful
performance of all of Undersigned's Obligations hereunder,
including without limitation, time of payment, is of the essence of this
Agreement. (i) Copies or reproductions of this document or of any
financing statem~nt may be filed as a financing statement.
12. Additional Power of Attorney. In addition to the powers of
attorney granted to Bank by Undersigned elsewhere in this
Agreement. Undersigned hereby appoints Bank and its officers,
Page 3 of 4
employees and agents as its irrevocable, true and lawful attorneys
in fact with all necessary power and authority to: (a) endorse
Undersigned's name on all media of payment delivered to Bank or
deposited in the Cash Collateral account; (b) notify Undersigned's
account debtors of the assignment of their debts and direct them to
make all payments thereon to Bank; (c) in Bank's name or in the
name of Undersigned, demand, sue for, collect, compromise, settle,
and give releases from any account; and (d) take such other action
as Bank may deem appropriate for any such purpose. In exercising
its rights under this section, Bank shall have no liability to
Undersigned except for willful misconduct.
13. Definitions. As used herein: (a) "account," "chattel paper,"
"contract right," "document," "instrument" and "inventory" have the
same respective meanings given to those terms in the Uniform
Commercial Code; (b) "Chief Executive Office" means the place
from which the main part of the business operations of an entity is
Signatures
\\IlIlC~ lh~ lIuc CXc\;UllUIl bcr~llhJS
,,,"tj' .
x
Witness:
Locations of inventory:
Rn 3 BOX 672
NF.WVTT.T.F., PA 17241
LZ-Ol2S Rev.(10196) LC. 9196 ill 9196
0275 p 166~.3823 1 LZOl25 (02)
052799,1605
managed; (c) "general intangibles" has the meaning given to 'thft
term in the Uniform Commercial Code, including without limitation,
customer lists, books and records (including without limitation, all
correspondence, files, tapes, cards, book entries, computer runs,
computer programs and other papers and documents, whether in the
possession or control of Undersigned or any computer service
bureau), rights in franchises and sales contracts, patents, copyrights,
trademarks, log~ goodwill, trade names, label designs, royalties,
brand names, plans, blueprints, inventions, patterns, trade secrets,
licenses, jigs, dies, molds and formulas; and (d) "Undersigned" refers
individually and collectively to all makers of this Agreement,
including, in the case of any partnership, all general partners of such
partnership individually and collectively, whether or not such partners
sign below. Undersigned shall each be jointly and severally bound by
the terms hereof, and with respect to any partnership executing this
Agreement, each general partner shall be bound hereby both in such
general partner's individual and partnership capacities.
""l ui I~~:" , J~ V
-~~~ ../~ /U~(Seal)
indiviqaa y and d/b/a
YOUNG /S DMARKET
RD 3 a 672
NEWV E, PA 17241
Locations ofreeords concerning the accounts:
RD 3 BOX 672
NF.WVTT.T,'Ii!, PA 17241
Page 4 of 4
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. 'PARTIfS ..
. ~btll~ name (last name arM Ie individuo1) and mallin, .dd=
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RP 3 !lOX 3tt\ (. '7 ~
,NEWVILLE, PA 11'241
Dcbla~ l\lWlC (!ll&I. name t'Il"'t if indm4ual) 1114 JUlIilin; .dd~
YDUlIG'S Fooo KAlOOiT
lID 3 BOX ~ "',~
NEWILL!!, Pol 17241
Debtor name: (Jut name ril1t If Individual) lad lnIliling ~dx'aw:
8oe1lftd PG11(lw) namc(;) (Wt D8mC fiIJI !C.Indivi4ua1) aad
uddraa lor lICCIItity IIIlUC8t iuro~tIoa:
Mellon Bank, M.A.
.~fnooo lIaillr;in; loan Co:nter
~ Mellon aank ccnter6 Rm. 1S'-1~70
Pltt&burQ/l, PI. 152Sa-O 01
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~ Iddtaa roc ICCIIdty 1nlc:R:5C Inlonnation.
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pel "CoaIfanor." zapc:ctivdy.
C DdK<< /lI.Il Tn\DmIlUiar; Ulllity.
s~~ PARTYSIGNATURE(S)
TIak .tdcmall" SSW ~(h: ouJ.y the ~un4 Parlflllr;mlCwe to
perfect. ~l)' iutaatln c:alIa~ (dlceklp(llialb1c boz(ec))-
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- ,'T~7Z9' '.0021008 F-210
t1NANC1NUb-i~.r~
UnlCoJ:1ll Commen:ial Code Forni UCCI
I' A ~ J, IMPORTANT - Please read I.nsttucIions
1!J.1 t7 . dlreruU,btrorerompletjn~ .
F~No. (Stlllllpo:! by filing olflCCP):: ~'Ltat. ~ ~~~ (1Imnpc:d ~ filio& ott:ice":
:..: ....'F il:-:~~""'"'I'; OEED~
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[J Secrclal)'oC1heCam~th. ': ; 0:". "Y.
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AlL oalM'S IttGHT. nTle. AHD INTERES'r{ \lItl!'l'Hell NOU CR
HERnFTER ~ISTJNG OR ACOUIIlED, .111 AIlO TO.ALl INVENTORY
(INCUlDING lEltJRNED Qlt REPOS$E$$El) COClOS)!~ Accoulln, Cl'EIl
ACCOOKTS, GENEIVII.. IIITAlIGI8LES. <l)OC\JI4EIIlli;.t.alAfTEL PA.PER.
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Detail report item #1 printed by: DOTTIE HOFFMAN on 2/22/01
====r===========================4==============================================
~ PENNSYLVANIA Dee DETAIL REPORT
DATA COVERAGE THROUGH
FEB 05, 2001
SEARCH COMPLETEIl
FEB 22, 2001
08:59 AM (CST)
~~===================================~===~===~~==================~============~
Filing Location:
SECRETARY OF STATE OF PENNSYLVANIA
308 NORTH OFFICE BUILDING
HARRISBURG, PA. 17105-8722
Original Filing Number:
Original Filing Date:
26811373
06/23/1997
Collateral:
FURNITURE AND FIXTURES
HEREAFTER ACQUIRED PROPERTY
INVENTORY
MACHINERY AND EQUIPMENT
OTHER
Debtor:
KWAK, SANG HO
RD 3 BOX 672
NEWVILLE, PA. 17241-0000
Additional Debtor:
YOUNG'S FOOD MARKET
RD 3 BOX 672
NEWVILLE, PA. 17241-0000
Secured Party:
MELLON BANK NA
BUSINESS BANKING LOAN CENTER
PGH, PA. 15258-0001
THE INFORMATION IN THIS REPORT IS PROVIDED IN CONFIDENCE SOLELY FOR YOUR USE IN
EVALUATING ACTUAL OR CONTEMPLATED BUSINESS TRANSACTIONS INVOLVING THE BUSINESS
ENTITY TO WHICH SUCH INFORMATION RELATES. NEITHER EXPERIAN NOR EXPERIAN'S
SOURCES WARRANT THE ACCURACY, COMPLETENESS, CURRENTNESS, MERCHANTABILITY OR
FITNESS FOR A PARTICULAR PURPOSE OF SUCH INFORMATION. IN NO EVENT WILL EXPERIAN
BE LIABLE FOR INDIRECT, INCIDENTAL, CONSEQUENTIAL OR SPECIAL DAMAGES RESULTING
FROM THE USE OF SUCH INFORMATION.
THE FOLLOWING DATA IS FOR INFORMATION PURPOSES ONLY AND IS NOT AN OFFICIAL
RECORD. CERTIFIED COPIES MAY BE OBTAINED FROM THE PENNSYLVANIA DEPARTMENT OF
STATE.
VERIFICATION
I, Joseph E. Sweeney, hereby certify that I am an Assistant Vice President of Citizens
Bank of Pennsylvania I have the authority to make this verification on its behalf. I hereby verify
that the factual averments contained in the foregoing complaint are true upon my personal
knowledge or information and belief. I understand that this verification is made subject to the
penalties of 18 Pa.C.S.A. ~ 4904 relating to unsworn falsification to authorities.
~~tQ
sep, E. tSweene
637979.1
.....
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HOURIGAN, KLUGER & QUINN
A PROFESSIONAL CORPORATION
BY: James T. Shoemaker, Esquire
IDENTIFICATION NO. 63871
LAW OFFICES
600 THIRD AVENUE
KINGSTON, PA 18704
(570) 287-3000
ATTORNEY FOR PLAINTIFF
MELLON BANK, N.A., now by assignment
CITIZENS BANK OF PENNSYLVANIA
8 West Market St.
Wilkes-Barre, PA 18701,
IN THE COURT OF COMMON PLEAS
OF CUMBERLAND COUNTY
Plaintiff
vs.
CNIL ACTION -- LAW
REPLEVIN
SANG HO KW AK, Individually and d/b/a
Young's Food Market, and YON HWA KWAK
2208 Chatham Way
Harrisburg, P A 1711 0,
Defendants
NO. 04 - 5958 CNIL TERM
NOTICE OF HEARING FOR SEIZURE OF PROPERTY
TO: Sang Ho Kwak, individually and d/b/a
Young's Food Market
2208 Chatham Way
Harrisburg, PA 17110
You are hereby notified that
1. Plaintiff has commenced an action of replevin and has filed a motion for writ of seizure of
the property described in the complaint. A copy ofthe complaint, the motion for writ of seizure, the brief
in support of motion for writ of seizure and the Court's Rule dated December 14, 2004 is attached to this
notice.
2. There will be hearing on this motion for writ of seizure on January 3,2005 at 3:00 p.m., at
the Cumberland County Courthouse, Carlisle, Pennsylvania, Court Room No.5.
644890.1
{'
3. You may appear in person or by a lawyer at the time and place set forth or file written
objections setting forth your reasons why the property should not be: seized.
4. Your failure to appear at the hearing may result in the seizure ofthe property claimed by the
plaintiff before a final decision in this case.
Respectfully submitted,
HOURIGAN, KLUGER & QUINN, P.C.
BY:
\/~
James T. Shoemaker, Esquire
ID NO.: 63871
Counsel for the plaintiff, Mellon Bank, N.A.,
now by assignment, Citizens Bank of Pennsylvania
600 Third Avenue
Kingston, PA 18704
(570) 287-3000 Telephone
(570) 27-8005 Facsimile
Dated: December 28, 2004
644890.1
:.
i'\. ('
",'
HOURIGAN, KLUGER & QUINN
A PROFESSIONAL CORPORATION
BY: James T. Shoemaker, Esquire
IDENTIFICATION NO. 63871
LAW OFFICES
600 THIRD AVENUE
KINGSTON, PA 18704
(570\ 287-3000
MELLON BANK, N.A., now by assignment
CITIZENS BANK OF PENNSYLVANIA
8 West Market St.
Wilkes-Barre, PA 18701,
ATTORNEY FOR PLAINTIFF
IN THE COURT OF COMMON PLEAS
OF CUMBERLAND COUNTY
Plaintiff
vs.
CIVIL ACTION -- LAW
REPLEVIN
SANG HO KW AK, Individually and d/b/a
Young's Food Market, and YON HWAKWAK:
2208 Chatham Way
Harrisburg, P A 1711 0,
Defendants
NO.04-sq~f
C-<JiJ)-~
NOTICE
YOU HAVE BEEN SUED IN COURT. If you wish to defend against the claims set forth
in the following pages, Y9U must take action within twenty (20) days after this Complaint and Notice
are served by entering a written appearance personally or by attorney and filing in writing with the
Court your defenses or objections to the claims set forth against you. You are warned that if you fail
to do so the case may proceed without you and a judgment may be entered against you by the Court
637973.1
:J' <:/; .': ~l. .~:. r1., ~'\~:f~ ;"""~~- I'~ ~: ~.~ :-~'::. :~~ ~~"~D
:;; i ',:.~.' '.,':' . " -, ~.--} (, ':1 ~',9"'"
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~~~....: -i~J ~:t~:'.~'J -::5 ~.. f) ,~,_- . ~! f I~.~.: ~~~~~, P.i..
___ nl~~'~c~.~$f~
(:rm.-W3fK~(!ry
without further notice for any money claimed in the Complaint or for any other claim or relief
requested by the Plaintiff. You may lose money or property or other rights important to you.
YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO
NOT HAVE A LAWYER, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW.
THIS OFFICE CAN PROVIDE YOU WITH INFORMATION ABOUT HIRING A
LAWYER.
IF YOU CANNOT AFFORD TO HIRE A LAWYER, THIS OFFICE MAY BE ABLE
TO PROVIDE YOU WITH INFORMATION ABOUT AGENCIES THAT MAY OFFER
LEGAL SERVICES TO ELIGffiLE PERSONS AT A REDUCED FEE OR NO FEE.
COURT ADMINISTRATOR
Cumberland County Court House
Carlisle, PA 17013
(717) 249-1133
-or-
PENNSYL VANIA LAWYERS REFERRAL SERVICE
P.O. Box 1086, 100 South Street
Harrisburg, P A 17108
(pennsylvania residents phone:
1-800-692-7375; out-of-statle
residents phone: 1-717-238-6715)
HOURIGAN, KLUGER & QUINN, P.c.
BY:~~
James T. Shoemaker, Esquire
Counsel for the: plaintiff, Mellon Bank, N.A.,
now by assignment, Citizens Bank of
Pennsylvania
.)'
637973.1
HOURIGAN, KLUGER & QUINN
^ PRor[SSIONAl CORPORATION
Al LAN M KLUGLh'
RICHARD M GOLDBERG
JOSEPH A I ACH
RONALD V S^N10R^
JOSEPH E KLUGER
JAMES T SHOEMAKER
MICHAEL J KOWALSKI
RICHARD M WILL!AMS
JENNIFER l ROGERS ulTzr
JL,Sl \'. i I~ tHJlNN jp
ARTHUR l PICCONE
RrtH^RD S RISHOP
l)t\NH-L.l \)1$1^$IO
DON/,Lf) C LlGORIO
MICHELLE M. QUINN
DAVID AIKENS, JR
AMM'>lO^ V WRIGHT,KLUGER
MICHAEL ^ LOMBARDO III
LAW OFFICES
~,IJl TI 1 'vH) I !(d~lJl.'! fl
GOO THIRD AVl:-NUE
434 LACKA\'\IANNf\ ^VLNIJf
KINGSTON. PA 18704-5815
SCRANTON, PA 1 H'\d,J ~() III
(~) "/0) J .1u t';; 1 -1
(570) 287-3000
FACSIMILE (570) 287-8005
E-MAIL: hkq@hkqpc.com
FACSIMILE (f)70) ()(ll 50??
OF COUNSEL
ROBERT C CORDARO
ANDREW HOURIGAN. JR
1948-1978
Ext. 1126
Direct e-mail: ishoemaker(l2)hkqpc.com
"ALSO MEMBER NJ BAR
November 23,2004
Sang Ho Kwak, Individually
and d/b/a Young's Food Market
2208 Chatham Way
Harrisburg, PA 17110
Property Address:
Account No.:
Young's Food Market, RD 3 Box 672 Newville, PA 17241
0805386-0101
IMPORTANT NOTICE
THIS NOTICE IS SENT TO YOU IN AN ATTEMPT TO COLLECT A DEBT AND ANY
INFORMATION OBTAINED FROM YOU WILL BE USED }10R THAT PURPOSE.
UNLESS YOU, WITHIN THIRTY (30) DAYS OF RECEIPT OF THIS NOTICE, DISPUTE THE
VALIDITY OF THE DEBT, IT WILL BE ASSUMED TO BE VALID.
IF YOU NOTIFY THIS OFFICE IN WRITING WITHIN THIRTY (30) DAYS THAT THIS
DEBT, OR ANY PORTION THEREOF IS DISPUTED, WE WILL OBTAIN AND FORWARD
TO YOU A VERIFICATION OF THE DEBT OR THE JUDGMENT AGAINST YOU. WE
WILL ALSO PROVIDE, UPON WRITTEN REQUEST WITHIN THIRTY (30) DAYS OF THE
DATE OF THIS NOTICE, THE NAME AND ADDRESS OF THE ORIGINAL CREDITOR, IF
DIFFERENT FROM THE CURRENT CREDITOR.
- Very truly yours, .
( . --_/~
'----', -
''---1~mes T. Shoemaker, Esquire
ITS :je
THIS NOTICE DOES NOT SUPERCEDE YOUR OBLIGATIONS UNDER THE FOREGOING
NOTICE TO PLEAD
638028.2
. i'
HOURIGAN, KLUGER & QUINN
A PROFESSIONAL CORPORATION
BY: James T. Shoemaker, Esquire
IDENTIFICATION NO. 63871
ATTORNEY FOR PLAINTIFF
LAW OFFICES
600 THIRD AVENUE
KINGSTON, PA 18704
(570) 287-3000
MELLON BANK, N.A., now by assignment
CITIZENS BANK OF PENNSYLVANIA
8 West Market St.
Wilkes-Barre, PA 18701,
IN THE COURT OF COMMON PLEAS
OF CUMBERLAND COUNTY
Plaintiff
vs.
crVIL ACTION -- LAW
REPLEVIN
SANG HO KW AK, Individually and d/b/a
Young's Food Market, and YON HWA KWAK:
2208 Chatham Way
Harrisburg, P A 17110,
Defendants
NO.
2004
COMPLAINT
The plaintiff, Mellon Bank, N.A., now by assignment, Citizens Bank of Pennsylvania (the
"Bank"), by and through its counsel, Hourigan, Kluger & Quinn, P.c., complains of the defendant, Sang
Ho Kwak, Individually and d/b/a Young's Food Market ("Mr. Kwak"), R.D. 3, Box 672, Newville, PA
17241, as follows:
63~Olg.1
"J
1. The Bank is a Pennsylvania state chartered bank conducting business in the
Commonwealth of Pennsylvania, having an office located at 8 West Market Street, Wilkes-Barre. PA
18711-0101.
2. Mr. Kwak is an adult individual with a last known address of2208 Chatham Way,
Harrisburg, P A 17110.
3. Upon information and belief, Yon Hwa Kwak is deceased.
4. On or about May 28, 1999, the Bank made a loan to Mr. Kwak, individually and
d/b/a Say-Ford Supermarket and Yon Hwa Kwak (jointly, the "Kwaks"), in the amount of
$395,000.00, as evidenced by a note, disclosure and security agreement (the "Note"). (A true and
correct copy ofthe Note is attached hereto as Exhibit "A" and incorporated herein by reference.)
5. In order to induce the Bank to make the aforesaid loan, Mr. Kwak granted the
Bank a security interest in , among other things, his equipment, machinery, motor vehicles,
furniture, fixtures, inventory, accounts and contract rights (collectively, the "Collateral"), as
evidenced by a security agreement (the "Security Agreement") and as protected by certain UCC-1
financial statements (the "UCC-I Financial Statements"). (A true and correct copy of the
Security Agreement and the UCC-1 FinaIlcial Statements is attached hereto as Exhibit "B" and
incorporated herein by reference.)
6. The Note was not assigned, except as stated above.
7. Mr. Kwak defaulted under the terms of the Note by failing to make monthly
payments of principal and interest due under the Note.
638018.1
2
),
8. The fair market value of the Collateral is unknown, but is believed to be less
than the amount due and owing the Bank by the K waks under the Note.
9. The Bank believes and therefore avers that Mr. Kwak has possession ofthe
Collateral.
10. Mr. Kwak has failed and refused, despite repeated demands by the Bank, to pay
the balance due under the Note or to deliver possession of the Collateral to the Bank.
11. The balance of the Note as of October 26,2004 was $320,245.20, consisting of
principal in the amount of$311,149.22, accrued interest in the amount of$8,512.74, and late
charges in the amount of$583.24, exclusive of attorneys' fees and costs.
WHEREFORE, the Bank demands judgment in replevin in favor ofthe Bank and against
the Kwaks in the amount of $320,245.20, plus interest from October 26,2004, attorneys' fees
and costs, and requests this Court to enter an Order directing the Prothonotary to issue a writ of
possession to the Sheriff directing the Sheriff to seize the CollateraL
Respectfully submitted,
HOURIGAN, KLUGE~ & QUINN, P.c.
BY: ~S _'-
James T. Shoemaker, Esquire
ID No.: 63871
Counsel for the plaintiff, Mellon Bank, N.A.,
now by assignment, Citizens Bank of
Pennsylvania
600 Third A venue
Kingston, P A 18704
Telephone (570) 287-3000
638018.1
3
.'~J. I
'1i~1iii<J~'.'IV_I1Il![
$ 395,000.00
Promiso To Pay. FOR VALUE RECEIVED, and intending 10 be legally
bound, Undersigned, as defined below, promises 10 pay to:
Mellon Bank, N.A.
("Bank") or its order at
Harrisburg, Pennsylvania
Ihe sum of
Three Hundred Ninety Five Thousand and
00/100
Dollars ($ 395,000.00 ), ~wilh interesl on the
outstanding balance from the date of: this Promissory Note
("Note") at the rate(s) ("Contractual Rate(s)") and in acwrdancc
with the repayment schedule specified belqw.
Contractual Rate(s); Repayment Schedules. :
o Interest at a rate per annum:which is %
above Bank's Prime Rate, such rate to ch.~nge from time to time
as of the effective date of each announccil change in such Prime
Rate, shall be paid when principal paym,ents are due. Principal
shall be paid in consecutive D,lOOthJy installments of
S each, commencing bn ,
and continuing thereafter on the i day of each month
with the balance of the indebtedness, if n~t sooner paid, due and
payable on :
,
o Interest at a rate per annum which is %
above the CD Rate, such rate to change tram time to time as of
the effective date of each change in or r$tting of the CD Rate,
shall be paid when principal payments ar4 due. Principal shall be
paid in Consecutive m9nthly installments of
S each, . I commencing on
, and continu~ thereafter on the
day of each month witli the balance of the
indebtedness, if not sooner paid,. que and payable on
I
I
o The principal balance heJ~f, together with all
accrued and unpaid interest, shall be' paid on ,
and interest at a rate per annum whicJ) is % above
Bank's Prime Rate, such rate to change from time to time as of
the effective date of each announced chaqge in such Prime Rate
shall be paid on the day of eachjmonth commencing o~
. ,
..
I
I
o The principal balance ht' r. together with all
.accrued and unpaid interest, shall be pa' on . ,
and interest at a rate per annum which . % above the
CD Rate, such rate to change from me to time as of the
eff~e date of each change in or resetti~ of the CD Rate, shall
be paId on the day of each tOnth commencing on
!
o In no event shall the rate charged Ion this Note exceed
% per annum.
I
o The principal balance htr. together with all
accrued and unpaid interest, shall be pai. on ,
and interest at the rate of % annum shall be paid
on the day of each m nth commencing on
fXI ....5';J)... ~~~est shall be calcJted at' the rate of
A . c;n % per annum. Principal and ~terest shall be paid in
17q consecutive monthlY installments of
$ 3 , q 23 . 65 each, coo1meocin on
. .l;f:~':!'I!'::;:.'::;';';;"t'.:.:ti;::;<::~t:f:t
.:::::=::::::::::::::::::::::::::::::~~~~~~~~~W~~~~~~~:~:~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~i~~t:::::
ate
-.::-- /AJ,97
07/01/1999 , and continuing thereafter on the 1ST
day of each month wilh the balance of Ihe indebledne~~, if not
soo~er paid, due and payable on 06/01/2014 . During any
penod Ihat Ihc ~nlraetual Rat~(s) is reduced by 0.25% per
annum, a~ descnbed elsewhere In this Note, inslallments of
principal and interest shall instead be in the amount of
$ 3,864.70 each. If the reduction in the Contractual
Rate(~) i~ no longer in effect, Ihe amount of in~tal1ments of
principal and inlercst shall return to and be the same as the amount
of such install men Is prior to the reduction in the Contractual
Ratc(s).
Undersigned shall pay Bank concurrently with the execution and
delivery hereof, or Undersigned previously has paid Banle, an
origi.nation fee ~~ $ .. ~ ' 950. 00 , to compensate Bank
for Its underwnting, onglOatiOn and administration of the loan
evidenced by this Note. This fee shaU be deemed fully earned by
Bank on the dale hereof, shall not be refunded, and is in addition
to any other fees, costs or expenses which may be due and payable
hereunder.
,
Unless Undersil~ed has authorized Bank to take payments out of
a ~ellon ~eckmg Account, as set forth below, Undersigned will
mad or deliver to Bank the amount billed by Bank each month.
Undersigned will mail or deliver the payments so that Bank
receives all payments no later than the due date shown on each bill.
o Undersigned authorizes Bank to take all
payments of priincipal and/or interest and/or other amounts due
under this Note: out of Undersigned's Mellon Olecldng Account
Number . titled in the name(s) of
. , on or
after ~e _~ ~y of each ~th. Undersigned will keep a
suffiCIent balance 10 this account to cover the full amounts of all
requiw;! ~yme?~ At. its . option, Bank may terminate
UndersIgned s ~.bility to use this service. This authorization shall
remain in ~ffect until r~oked by, Undersigned in writing or until
the loan evIdenced by this Note IS paid in full or until Bank has
termin~ted Und~rsi~ed's a~i1ity ~o use this service, as the case may
be. Pnor to matunty, whIle thIS authorization is in effect and
provided that Undersigned keeps a sufficient balance in this
account to cover the full amounts of all required payments, the
Contractual Rate(s) shall be reduced by O~25% per annum. This
authorization will be effective even though this Note and the
account may be titled in different versions of Undersigned's name.
If the original principal amount of this Note is in excess of
SlO,OOO.OO, or if U~dersigned is a corporation, interest shall be
calculated on the: basis of a 360-day year and actual'days elapsed. If
the original principal amount of this Note is $10,000.00, or less, and
Undersigned is Dot a corporation, interest shall be calculated on the
basis of a 365-day year or ~ay year, as the case may be, and
actual days elaps.ed.
"Prime Rate" shall mean the interest rate pee annum announced
from time to time by Bank as its Prime Rate. The Prime Rate may
be greater or less than other interest rates charged by Bank to
?ther borrowers.. and is not Solely based or dependent upon the
mterest rate whl:ch Bank may charge any particular borrower or
dass of borrowers. .
If a single oertifi<:ate of deposit is held by Bank as collateral security
for the indebtedness evidenced by this Note as more fully
described in the .t\ssi.gnment of Deposit Account ~ressly referring
to this Note, "cn Rate" shall ~the interest rate paid by Bank
on such certificate of deposit (the "G&1ificat~~), Said CD Rate to be
. . q
. ';;2 ;'>' Page 1 of 5
..
..,
;',
~~t by Bank at each renewal of the Certltfate. If more than one
certificate of deposit is held by Bank as collateral security for the
indebtedness evidenced by this Note, as more fully described in the
Assignment(s) of Deposit Account expressly referring to this Note,
"CD Rate" shall mean the highcst of the intercst rates paid by Bank
on such certificates of deposit (the "Certificates"), said CD Rate to
be reset at each renewal of each Certificate.
Late Charge. If any payment (including without limitation any
regularly scheduled payment, balloon payment or final payment) is
not paid within 15 calendar days after it is due, Undersigned wilI pay
a late charge of the greater of $25.00, or three percent (3%) of the
unpaid portion of the scheduled payment due (regardless of whether
the payment due consists of principal and interest, principal only or
interest only). Such late charge shall be in addition to any increase
made to the Contractual Rate(s) applicable to the outstanding
balance hereof as a result of maturity of this Note or otherwise, as
well as in addition to any other applicable fees, charges and costs.
Default Rate(s); Post-Maturity Rate{s). Upon the occurrence of
any Event of Default (as defined in this Note), at Bank's option,
interest shall accrue at a rate equal to two percent (2%) per annum
above the Contractual Rate(s) until the earlier of the date that such
Event of Default bas been cured or until and including the date of
maturity hereof.
After maturity, whether by acceleration or otherwise, interest shall
accrue at a rate equal to two percent (2%) per annum above the
Contractual Rate(s) until all sums due hereunder are paid. Interest
shall continue to accrue after the entry of judgment (by confession or
otherwise) at the Contractual Rate(s) until aU sums due hereunder
and/or under the judgment are paid, except that after maturity or, at
Bank's option, upon the occurrence of any Event of Default, interest
sball accrue at a rate equal to two percent (2%) per annum above
the Contractual Rate(s).
Books and Records; Time of Essence. So long as Bank is the
holder hereof, Bank's books and records shaU be presumed, except
in the case of manifest error, to accurately evidence at aU times all
amounts outstanding under this Note and the date and amount of
each advance and payment made pursuant hereto.
The prompt and faithful performance of all of Undersigned's
obligations hereunder, including without limitation time of payment,
is of the essence of this Note.
_ Security Interest, Setoff end Assignments. To secure all amounts
at any time owing or payable under this Note and Undersigned's
obligations hereunder, as well as to secure all costs and expenses
incurred by Bank in the collection or enforcement of this Note or the
-protection of any collateral securing this Note (tncluding without
limitation all advances made by Bank for taxes, levies, insurance,
filing fees, and repairs to or maintenance of said collateral),
Undersigned hereby grants to Banle a security interest in, lien upon,
and right of setoff against, all deposit accounts, credits, securities,
moneys, or other property of Undersigned which may at any time be
in the possession of, delivered to, or owed by Banle, including any
proceeds or returned or unearned premiums of insurance, and the
proceeds of all the foregoing property. Other property, real or
persooa~ may secure this Note, as set forth in other documents and
agreements.
Undersigned acknowledges and agrees that Undersigned shall
renew, or cause to be renewed, the Certificate(s), if any, until the
indebtedness evidenced by this Note bas been paid in fulL
Undecsigned further agrees that Undersigned will ac:cute, or will
cause to be executed, upon demand by Bank any financing
statements or other documents, including, without limitation,
additic?oal Assignments of ~ Aocount, wbicb Bant may deem
oecx:ssary or desirable to evidence, perfect or maintain perfection of
the security interests created in the Certificate(s) and any renewals,
replacements and substitutions thereof.
Additional Tenus and Conditions
1. Covenants:. Undersigned COIIaJallts and agrees that until all
indebtedness evidenced hereby has been paid in full, Undersigned
shall: (a) maintain at all times a positive tangible net worth; (b) (1)
have all Environmental Permits necessary for the conduct of each
of Undersigned's businesses and operations, (2) conduct each of
Undersigned's businesses and operations in material compliance
with all applicable Environmental Laws and Environmental
Permits, (3) not permit to exist any event or condition that requires
or is likely to require Undersigned under any Environmental Law
to payor (:xpend funds by way of fines, judgments, damages,
cleanup, remediation or the like in an aggregate amount, the
payment of which could reasonably be expected to interfere
substantially with normal operations of Undersigned or materially
adversely aflCct the financial condition of Undersigned, (4) notify
Bank promptly upon becoming aware of any pending or threatened
proceeding, .suit, investigation, allegation or inquiry regarding any
alleged event or condition that, if resolved unfavorably to
Undersigned or any of Undersigned's subsidiaries or affiliates, is
likely to cause Undersigned or any of its subsidiaries or affiliates
under any Environmental Law to pay or expend funds by way of
fines, judgm~nts, damages, cleaning, remediation or the like, and
(5) provide at Undersigned's cost, upon request by Bank,
certifications" documentation, copies of pleadings and other
information regarding the above, all in form and content
satisfactory to Bank; (c) conduct each of Undersigned's businesses
and operations in material compliance with all federal, state or local
laws, statutes, regulations, rules, ordinances, court or administrative
orders or de<:rees, or private agreements or interpretations, now or
hereafter in ,existence, directly or indirectly relating to or affecting
Undersigned's businesses or operations; (d) use the proceeds of the
loan evidenced hereby only for business purpose(s) specified to
Bank at or prior to the execution hereof; (e) promptly notify Bank:
in writing of any change in Undersigned's residence or OIief
Executive Office; (f) purchase and maintain policies of insurance
(including tlooc.f insurance) to protect against such risks and
casualties, and in such amounts, as sIiaIl be required by Bank:
and/or appli<:able law, which policies shal1 (1) be in form and
substance satisfactory to Bank, (2) at Bante's option, designate
Bank as loss payee and/or as additional insured, and/or contain a
lender's loss payable endorsement, and (3) be (or certificates
evidencing s:JiIDe shall be) deposited with Banle; (g) (1) maintain
and keep proper records and books of account in conformance with
generally accepted accounting principles applied on a consistent
basis in whicl1 full, true and correct entries shall be made of all
Undersigned's dealings and business affairs, (2) provide to Bank at
Undersigned',s cost, upon Bank's request, financial or other
information, documentation or certifications (including without
limitation annual and periodic balance sheets and income
statements, personal financial statements, federal income tax
returns, inventory reports (including a description of raw materials,
finished goods, and the aging thereof, as applicable), and accounts
receivable and payable aging reports), all in form and content
satisfactory to Banle, and (3) permit, upon request by Banle, any of
the officers, employees or representatives of Bank to visit and
inspect any of Undersigned's properties and locations and to
examine its books and records and discuss the affairs, finances and
accounts of Undersigned with representatives thereof, as often as
Bank may request; (h) provide additional collateral at such times
and having such value as Bank may request, if Bank shall bave
reasonable grounds for believing that the value of the collateral
securing the indebtedness evidenced by this Note has become
insufficient to secure said indebtedness; (i) pay, upon demand by
Banle, (1) all (osts and fees pertaining to the filing of any financing,
continuation or termination statements, mortgages, satisfaction
pieces, judgments and any other type of document which Bank
deems necessary or desirable to be filed with regard to security
interests whkb secure the.. indebtedness evidenced hereby,
re~ of whether such q!rity interests were granted by
Undersrgned, and (2) all costs an<fC:xpe.yses incurred by Bank: In
Page20f5
.' ');.'
ronnection with any collateral securing this Note (including without
Iim1tation all advances made by Bank for taxes, levies, insurance,
rcpairs to or maintenance of said collateral, appraisal or valuation
of said collatcral, and determination of flood hazard), rcgardless of
whcther such collatcral is owned by Undcrsigned; and (j) pay, upon
demand by Bank, all amounts incurred by Bank in connection with
any action or proceeding taken or commenced by Bank to enforce
or collect this Note, including attorney's fees equal to the lesser of
(1) 20% of the outstanding principal balance and intcrcst then due
hereunder or $500.00, whichever is greater, or (2) the maximum
amount permitted by law, plus attorney's costs and all costs of legal
proceedings.
2. Events of Default. The occurrence of any of the following shall
constitute an ftEvent of Dcfaultft hereunder. (a) default in payment
or performance of any of the indebtedness or obligations evidenced
by this Note or any other evidence of liability of Undersigned to
Bank; (b) the breach by any Obligor (defined as Undersigned and
each surety or guarantor of any of Undersigned's liabilities to Bank
as well as any person or entity granting Bank a security interest in
property to secure any indebtedness) of any covenant contained in
this Note or in any separate security, guarantee or suretyship
agreement between Bank and any Obligor, the occurrence of any
default hereunder or under the terms of any such agreement, or
the discovery by Bank of any false or misleading representation
made by any Obligor herein or in any such agreement or in any
other information submitted to Bank by any Obligor; (c) with
respect to any Obligor. (1) death or incapacity of any individual or
general partner, or (2) dissolution of any partnership or
corporation; (d) any assignment for the benefit of creditors by any
Obligor; (e) insolvency of any Obligor; (f) the filing or
commencement of any petition, action, case or proceeding,
voluntary or involuntaty, under any state or federal law regarding
bankruptcy, insolvency, reorganization, receivership or dissolution,
including the Bankruptcy Reform Act of 1978, as amended, by or
against any Obligor; (g) default under the terms of any lease of or
mortgage on the premises where real or personal property securing
the indebtedness evidenced by this Note is located; (11) the
garnishment, tax assessment, attachment or taking by
governmental authority or other creditor of any property of any
Obligor which is in Bank's possession or which constitutes security
for any indebtedness evidenced hereby; (i) entry of judgment
against any Obligor in any court of record; (j) the assessment
against any Obligor by the 'Internal Revenue Service or any other
federal, state or local taxing authority of unpaid taxes, or the
issuance of a levy or the entering of a lien in connection therewith;
(Ie) change in control of or transfer of any interest in any Obligor
- (other than an Obligor who is an individual); (I) a determination by
Bank, which determination shall be conclusive if made in good
faith, that a material adverse change bas occurred in the financial
- or business condition of any Obligor; (m) the maturity of any life
insurance policy held as collateral for the indebtedness evidenced
by this Note by reason of the death of the insured or otherwise; or
(n) default by Undersigned in the payment of any indebtedness of
Undersigned or in the performance of any of Undersigned's
obligations (other than indebtedness or obligations evidenced by
this Note or any other evidence of liability of Undersigned to Bank)
and such default shall continue for more than any applicable grace
period.
3. Acceleration; Remedies. Upon the oceurrence of any Event of
Default: (a) all amounts due under this Note, including the unpaid
balance of principal and interest hereof, shall become immediately
due and payable at the option of Bank, without any demand or
notice whatsoever; and (b) Banle may immediately and without
demand exercise any of its rights and remedies granted herein,
under applicable law, or which it may otherwise have, against
Undersigned or otherwise. Notwithstanding any provision to the
contrary contained bcrein, upon the occurrence of an Event of
Default as described in Section 2(f) hereof, aU amounts due under
.( ;
this Note, incJ:uding WI...Jut limitation the unpaid balance of principal
and interest hereof, shall become immediately due and payable,
without any demand, notice or further action by Bank whatsoever,
and an action therefor shall immediately accrue.
4. Bank's Rights. Undersigned hereby authorizes Bank, and Bank
shall have the continuing right, at its sole option and discretion, to: (a)
do anything which Undersigned is required but fails to do, and in
particular Banle may, if Undersigned fails to do so, obtain and pay any
premiums payable on any policy of insurance required to be obtained
or maintained hereunder; (b) direct any insurer to make payment of
any insurance proceeds, including any returned or unearned
premiums, directly to Bank, and apply such moneys to any
indebtedness or other amount evidenced hereby in such order or
fashion as Bank may elect; (e) pay the proceeds of the loan evidenced
by this Note to any or all of the Undersigned individually or jointly, or
to such other person(s) as any of the Undersigned may direct, except
to the extent otherwise provided in Section 6 hereof; and (d) add any
amounts paid or incurred by Bank under Section l(i), Section 1(j) or
Section 4(a) to the principal amount of the indebtedness evidenced
by this Note.
5. Authorization to Borrow. Undersigned hereby represents, warrants,
certifies and covenants as follows:
(a) If Undersigned is a corporation, that the person(s) signing below
hold(s) the office(s) indicated below (and continue to hold such
office(s) until Bank has received notice to the contrary in writing
from Undersi,~ned), and that the Board of Directors of Undersigned
has adopted resolutions providing that: (1) the person(s) executing
and deliverinE this Note on behalf of Undersigned is/are authorized
(i) to incur indebtedness and obligations on behalf of Undersigned by
borrowing or making other financial arrangements with Bank from
time to time, upon terms and conditions as they in their sole
discretion deem desirable, (d) to make, execute and deliver
promissory notes, letter of credit agreements, security agreements,
assignments, mortgages and aU other documents required by Bank in
connection wilh the incurring of indebtedness or obligations, and (Iii)
to assign and pledge as collateral secUrity for any such indebtedness
or obligatiorn~ now or hereafter existing, any real or personal
property of Undersigned; (2) the actions of anyone or more officers
of Undersignc:d in borrowing money from Bank heretofore for the
account of Undersigned, in assigning or pledging any of
Undersigned's property for the payment thereof, or in doing any
other act in connection therewith are hereby ratified, confirmed and
approved; and (3) said resolutions shall have the force of a continuing
agreement with Bank, and shall be binding upon Undersigned until a
resolution am~ding them shall have been duly and legally adopted
and Bank furnished a certified copy thereof.
(b) If Unden.igned is a partnership, that (1) Undersigned's name
shown below is a trade name of Undersigned's firm used in the
conduct of an unincorporated business owned entirely by the persons
signing this Note on behalf of said partnership; (2) the partners
executing and delivering this Note are authorized (i) to incur
indebtedness Md obligations on behalf of Undersigned by borrowing
from or makiI:lg other financing or credit accommodations with Bank
from time to ltime, upon such terms and conditions as they in their
sole discretion deem desirable, (ii) to make, execute, and deliver
promissol}' notes, letter of credit agreements, security agreements,
assignments, mortgages and all other documents required by Bank in
connection with the incurring of indebtedness or obligations, and (iii)
to assign an~ Irledge as collateral security for any such indcbtedness
or obligatiOnS; :oaw or hereafter existing, any real or personal
property of Undersigned; (3) the actions of anyone or more partners
of Undersigned in borrowing money from Bank heretofore for the
account of Undersigned, in assigning or pledging any of
Undersigned's property for the payment thereof, or in doing any
other act in CXJonection therewith.at:C hereby ratified, confirmed, and
approved; (4) notwithstanding anylmodiftcation or termination of the
:. Page30f5
....\1..'
,.
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~
power of any of the partners to represent said firm. whether by
expiration of the partnership agreement, by death or retirement
of any partner, or the accession of one or more new partners, or
otherwise, and notwithstanding any other notice thereof Bank
may receive, this authority shall continue to be binding upon each
of the Undersigned individually and upon their legal
representatives, and upon Undersigned and its sucecssors, until
Bank has received notice in writing to the contrary signed by one
of the Undersigned or by Undersigned's duly authorized agent
(Receipt of sueh notice will not relieve any partner of any liability
arising from obligations incurred prior 1O Bank's receipt of such
notice.), and (5) nothing herein shall be construed to limit the
rights granted to a partner by law or by the partnership
agreement, but all rights granted herein shall be in addition to
such rights.
6. Definitions; Miscellaneous Provisions. (a) Undersigned waives
(except where requested hereby) notice of action taken by Banle;
and hereby ratifies and confirms whatever Bank: may do. Bank
shall be entitled to exercise any right notwithstanding any prior
exercise, failure to exercise or delay in exercising any such right.
(b) Bank shall retain the lien of any judgment entered on account
of the indebtedness evidenced hereby. Undersigned warrants that
Undersigned has no defense whatsoever to any action or
proceeding that may be brought to enforce or realize on any such
judgment. (c) If any provision hereof shall for any reason be held
invalid or unenforceable, no other provision shaD be affected
thereby, and this Note shall be construed as if the invalid or
unenforceable provision had never been a part of it. The
descriptive headings of this Note are for convenience only and
shall not in any way affect the meaning or construction of any
provision hereof. (d) The rights and privileges of Bank: contained
in this Note shall inure to the benefit of its successors and assigns,
and the duties of Undersigned shall bind all heirs, personal
representatives, successors and assigns. (e) This Note shall in aD
respects be governed by the laws of the state in which this Note is
payable (except to the extent that federal law governs). (f)
Undersigned hereby irrevocably appoints Bank: and each holder
hereof as Undersigned's attorney-in-fact to endorse
Undersigned's name to any draft or check: which may be payable
to Undersigned in order to collect the proceeds of any insurance
or any returned or unearned premiums in respect of any policies
of insurance required to be maintained hereunder. Undersigned
hereby acknowledges that this appointment of Bank and each
holder hereof as attorney-in-fact is irrevocable and is coupled
with an interest. (g) Undersigned assigns to Bank all moneys
which may become payable on any policy of insurance required to
be maintained under this Note, including any returned or
unearned premiums. (h) "Environmental Law" means any
_ federal, state or local environmental law, statute, regulation, rule,
ordinance, court or administrative order or decree, or private
agreement or interpretation, now or hereafter in existence,
relating to the manufacture, distribution, labeling, use, handling,
collection, storage, treatment, disposal or otherwise of Hazardous
Substances, or in any way relating to potlutkln or protection of
the environment or public health. (i) "Enviroomental Permit"
means any federal, state or local permit, license or authorization
issued under or in connection with any Environmental Law. (j)
"Hazardous Substances" means petroleum and petroleum
products, radioactive materials, asbestos, radon, lead
containing materials, sewage or any materials or substances
defined as or included in the definition of "hazardous wastes"
"hazardous substances," "hazardous materials," "toxic
substances," "hazardous air pollutants," "toxic pollutants,"
"pollution," or terms of similar meaning, as those terms are
used in any Environmental Law. (k) "Chief Executive Office"
means the place from which the main part of the business
operations of an entity is managed. (I) "Undersigned" refers
individually ;:lOd collectively to all makers of this Note,
including, in the case of any partnership, all general partners of
such partnership individually and collectively, whether or not
such partners sign below. Undersigned shaU each be jointly and
severally bound by the terms hereof, and, with respect to any
partnership executing this Note, each general partner shall be
bound hereby both in such general partner's individual and
partnership capacities.
7. Direction to Pay Proceeds.Undersigned hereby authorizes and
direets Bank to pay the proceeds of this Note by: . .
Vi crediting Accclunt Number ()ti)- ro z 1 '1 if+(, :tl &; I; 2a / i
(\inthenameof I /
51lN6 tlO ~DtJ IfWIr K \oJ It(\.
in the amount of $ I .,1 fI/
I R 529 00 Ei.I~J('19 mtkO
''0paying rnDI~ :fI (Pl' _' IDJ-fJ1:;- J 2. &~S- -
/\ A 1,J L $1-3 J .30fJ.3 - if ,q "2-1 u
the amount of S .
~ying f)tN<EICfJL! q/;;l9'1<~f
the amount of $
8. Affidavit of Business Loan. (This Affidavit is not applicable if
Undersigned is a corporation.) Undersigned, being duly
authorized, depose(s) and say(s) under penalty of perjury that
Undersigned: .
(a) Is/Are enl:aged in business aslia Owoer(s), 0 General
Partoer(s) of: (name and nature of business)
YOUNG~ooD MARKET AND
SAY-Fop-R-SUPERMARKET if. yl--
FOOD MARKET
(b) Hereby make(s) application to Bank for a loan, the
proceeds of which will be utilized for the purpose(s) of
REFINANCE MELLON DEBT. OTHER DEBT
CONSOLIDATION & EQUIPMENT & INVOICE
PURCHASE
(c) Exercise(s) actual control over the managerial decisions of
the business.
(Remainder of page intentionally left blank)
.".'
.,)t Page 4 of 5
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9. Confession of Judgment. UNDERSIGNED HEREBY
EMPOWERS TIlE PROTIlONOTARY OR ANY
ATTORNEY OF ANY COURT OF RECORD TO APPEAR
FOR UNDERSIGNED AND TO CONFESS JUDGMENT
AS OFTEN AS NECESSARY AGAINST UNDERSIGNED
IN FAVOR OF TIlE HOLDER HEREOF, REGARDLl1')S
OF WHETHER ANY EVENT OF DEFAULT liAS
OCCURRED, AT ANY 11ME AND AS OF ANY TERM,
FOR TIlE OUTSTANDING PRINCIPAL BALANCE
HEREOF PLUS INTEREST DUE UNDER TIlE TERMS
HEREOF AND ALL OTIIER AMOUNTS DUE
HEREUNDER, TOGETIlER wnH COSTS OF LEGAL
PROCEEDINGS AND AN ATfORNEY'S COMMISSION
EQUAL TO TIlE LESSER OF (A) 20% OF TilE
OUTSTANDING I'RINCIPAL BALANCE AND
INTEREST HIEN DUE HEREUNDER OR $500.00,
WlUCIIEVER IS GREATER, OR (13) TIlE MAXIMUM
AMOUNT PERMITTED BY 1A W, WITH RELEASE OF
ALL ERRORS. UNDERSIGNED WAIVES ALL LAWS
EXEMPTING REAL OR PERSONAL PROPERTY
FROM EXECUTION.
By signing this Note, Undersigned agrees to all terms of the Note and swears, under penalty of perjury (as set forth in
18 Pa.C.S. ~904, If governed by Pennsylvania law), to the Aftldavlt or BusIness Loan (IC completed) set Corth In
Section 8 of this Note.
11~~~!!II'~!ga!li~II!II!lllllllll!I!I~I!I!III!lllllll!Il~~llll!II!~llllllllll~lll~I!!!I!I~I!ll~:::::::::::::::::::::::::l~~lll~lllllllllll!IIIII~I.:.;~~:I:lll~I~1:1!:I:l:I~lll:I~1111Ij:I~I)ll~::I!!!~:j:~:11:11:~I~~:1l::I:::I~I:I~ljll~~l[I~I~I~I~III~111;:ll!jlll:lll[I~~1i!II;I!II:I:I:llllllll1:llI1I,::ll:,11:1!:ll:I!!I!!111Illl!!:::::::
Witness the due execution hereof under seal
x
witness:
:itne.~~
,
Mdlon Banlc, NA
Mdlon Bank (DE) National Association
CL-450 Rev.(t0i96) LC 9196 ill 9196
0275 r l(i6.6.(-3823 1 d4543 (01)
052799,1605
~~a"
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~~~(J ~~~lF~tl <;V'/'}-:~~1#;.;}lu~7
672 B :imVILLE ROAD . /..-
NEWVILLE, PA 17241 ) k-. ftC
Individual:. . /_
X.~~AK /J>>P- (~F'-.J (Seal)
~~RVILLE ROAD
NEWVILLE, PA 17241
"., "'.:,..
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Page 5 of 5
-or
....\" '
For value received, and intending to be legally bound, in
consideration of a loan or other credit accommodation in the
amount of
Three Hundred Ninetv Five Thousand and
00/100
Dollars ($ 395,000.00 ) made by
Mellon Bank. N.A.
~Bank"UO
;~~; =~r~
SAY- . SUPERMARKET V
("Borrower(s)"), said obligation evidenced by a
PROMISSORY NOTE
dated _1,-- CJ-f) - '1'1 . (the "Note")
Undersigned, intending to be legally bound, hereby agrees as
follows:
1. Security Interest. Undersigned hereby grants to Bank a security
interest in the following property now owned or hereafter acquired
by Undersigned:
(Certain terms used herein are defined in Section 13 below.)
IXI ~ ~ (6.) all equipment, wherever located, including
ala ry, m tor vehicles, furniture and fixtures;
IXI fi'~ 'if;n inventory (whether held for sale or lease or to
be . ed under contracts of service), raw materials, work in
process, and materials used or consumed in the conduct of
Undersigned's business, and all books, records, invoices or other
documents which describe or evidence the same;
IX! 0~ Y ~II accounts, contract rights, general intangibles,
~ chases in action, instruments, documents (including
all documents of title and warehouse receipts) and all rights to the
payment of money, however evidenced or arising;
o (d) all securities; all cash, stock or other dividends or
distributions paid upon or made in respect of such securities in any
form; all securities received in addition to or in exchange for such
securities; and all subscription rights incident to such securities;
o (e) all farm products; and
o (f) all property or rights described below under the
caption "Description of Collateral."
Description of CoUateral (Give a sufficiently detailed description
to identify each item).
In addition to the foregoing, Undersigned: (1) grants to Bank a
security interest in all accessions, parts, accessories, attachments and
appurtenances in any way used with, attached or related to, or
installed in, or ~l1tended to be so used, attached, related to or installed
in, any equipment or inventory constituting "Collateral" hereunder;
(2) grants to ~lDk a security interest in all substitutions for, renewals
of, improvements, replacements and additions to, and the products
and proceeds (cash and non-cash) of all of the foregoing property
and any insurance policies relating thereto; (3) grants to Bank a
security interest in, lien upon, and right of setoff against, all deposit
accounts, credits, securities, moneys or other property of
Undersigned which may at any time be in the possession of, delivered
to or owed by Hank, including any proceeds or returned or unearned
premiums of insurance, and the proceeds (cash and non-cash) of all
the foregoing property; and (4) assigns to Bank all moneys which may
become payablt: on any policy of insurance required to be maintained
under this Agreement, including any returned or unearned
premiums.
AIl such property subject to Bank's security interests described in this
Section 1 is referred to herein collectively as the "Cotlateral." With
respect to Section 4 hereunder, the term "Collateral" shall not include
the property described in Subsection (3) of this Section 1.
All security intl~rests in Collateral shall be deemed to arise and be
perfected under and governed by the Uniform Commercial Code,
except to the e:rtent that such law does not apply to certain types of
transactions or Collateral, in which case applicable law shall govern.
2. Obligations Secured. The Collateral shall secure the following
obligations ("Obligation(s)j: (a) all amounts at any time owing or
payable under tbe Note, and any other indebtedness, liability or
obligation of Borrower(s) or of Undersigned to Bank, now existing or
Page 1 of 4
In addition to the rights given to Bank in this Agreement, Bank
shall have all the rights and remedies of a secured party under any
applicable law, including without limitation, the Uniform
Commercial Code.
8. Additional Representations. In addition to the representations
and warranties set forth elsewhere in this Agreement, Undersigned
hereby mak:es the following representations and warranties which
shall be true and correct on the date of this Agreement and shall
continue to be true and correct at the time of any borrowing under
any line of credit with Bank and until the Obligations secured by
this Agreement shall have been paid in full: (a) each account: (1)
represents an amount actually owing to Undersigned by the
account debtor (less discounts allowed for prompt payment); (2) is
valid and enforceable according to i~ terms without further
performance of any kind; (3) is not evidenced by any instrument or
chattel paper unless the origina1 of such instrument or chattel
paper has been deposited with Bank; and (4) is not evidenced by
any judgment unless such judgment has been assigned of record to
Bank; and (b) the locations of all of Undersigned's places of
business are as stated below, and the inventory and records of the
accounts are kept at the places indicated below.
9. Additional Covenants. In addition to the covenants set forth
elsewhere in this Agreement, Undersigned covenants and agrees
that until the Obligations secured by this Agreement have been
paid in full Undersigned shall: (a) immediately notify Bank in
writing in the event that any of the following occurs: (1) any
account is or becomes entitled or eligible for discount for prompt
payment; (2) any account debtor has or may have any defense to
payment of, or right of setoff, counterclaim, or recoupment against
any account; (3) any account represents an amount which is
disputed by the aCcount debtor or the payment of which is in any
way contingent or conditional; or (4) the desirability, usefulness, or
marketability of any of the inventory has been in any way reduced
or impaired by reason of physical deterioration, teehnical
obsolescence, or otherwise; (b) keep accurate and complete books
and records in accordance with generally accepted accounting
principles and, at Undersigned's expense, promptly furnish Bank
such information and documents relating to the Collateral at such
times and in such form and detail as Bank may request, including
without limitation: (1) copies of invoices or other evidence of
Undersigned's accounts and schedules showing the aging,
identification, reconciliation, and coUeetion thereof; (2) evidence of
shipment and receipt of goods and the performance of services or
obligations covered by accounts; and (3) reports as to
Undersigned's inventory and purchases, sales, damage, or loss
thereof; all of the foregoing to be certified by authorized officers or
other employees of Undersigned; (c) not change any location listed
_ below regarding places of business, inventory and records of
accounts without Bank's prior written consent; (d) at
Undersigned's expense, diligently collect the accounts on behalf of
Bank until such time as Bank exercises its right to direetly colleet
the accounts, and upon notice from Bank, deliver all proceeds of
accounts to Bank forthwith upon receipt, in the original form in
which received; (e) immediately upon Bank's request, open a cash
coIlateral account ("Cash Collateral account") at Bank and deposit
therein all cash proceeds of collections on the accounts; (f)
immediately upon Bank's request, give the Bank assignments, in
form acceptable to Bank, of specific accounts or groups of accounts
and specific general intangibles, and immediately repay the amount
loai1ed against any account so assigned to the Bank if the contract
with the account debtor is breached, cancelled or terminated; (g)
immediately upon Bank's request, furnish Bank: with all
information received by Undersigned regarding the financial
condition of any account debtor, except to the extent prohibited by
law; (h) immediately deliver to Bank all instruments, documents or
chattel paper representing any of the Collateral and immediately
assign of reeord to Bank any judgmcnl representing any account
constituting Collateral; and (i) imllll'1fisttely upon Bank's request,
mark its records evidencing its accounts in a manner satisfactory to
Bank so as to show which accounts have been assigned to Bank.
10. Additional Rights of Bank In addition to the Bank:'s rights set
forth elsewhere in this Agreement, Undersigned hereby authorizes
Bank:, and Bank shall have the continuing rights at any time, whether
or not any detmIt has occurred under this Agreement, and at its sole
option and disc:retion, without notice, to: (a) take over and collect any
or all of the Blccounts and to take any other action pursuant to its
power of attorney granted herein; (b) exercise absolute and exclusive
dominion and control over all funds deposited in the Cash Collateral
account; apply any funds therein against any Obligations; and charge
to any deposit account of Undersigned any Item of payment credited
to the Cash Collateral account which is subsequently dishonored; (c)
at any reasonable time, through its authorized agents and employees,
inspect, audit, and verify the accounts and the inventory, review
Undersigned's books and records, and copy or make excerpts from
any document;. and (d) verify accounts with debtors in the name of
Undersigned, Hank, or Bank's designee.
11. Mrscellaneow Provisions. (a) Undersigned waives protest of all
commercial paper at any time held by Bank on which Undersigned is
in any way liable, notice of nonpayment at maturity of any and all
accounts, and (except where requested hereby) notice of action taken
by Bank; and hereby ratifies and confirms whatever Bank may do.
The rights andl remedies of Bank hereunder are cumulative. Bank
shall be entit\ied to exercise any right notwithstanding any prior
exercise, failur(: to exercise or delay in exercising any such right. (b) If
any provision hereof shaD for any reason be held invalid or
unenforceable, no other provision shall be affected thereby, and this
Agreement shall be construed as if the invalid or unenforceable
provision had never been a part of it. The descriptive headings of this
Agreement are for convenience only and shall not in any way affect
the meaning or construction of any provision hereof. (c) The rights
and privileges of Bank contained in this Agreement shall inure to the
benefit of its successors and assigns, and the duties of Undersigned
shaD bind all heirs, personal representatives, successors and assigns.
(d) No modification of this Agreement, nor any waiver of any
provision hereof, shall be effective or enforceable unless set forth in
writing and signed by an officer of Bank. (e) This Agreement shall in
all respects b4~ governed by the laws of the state where the
Obligations are payable as reflected in the document(s) evidencing
such Obligations (except to the extent that federal law governs), and
all references to the Uniform Commercial Code shall be deemed to
refer to the Ullliform Commercial Code as enacted in such state. (f)
Undersigned hereby irrevocably appoints Bank: and each holder
hereof as Undersigned's attorney-in-fact to: (1) endorse
Undersigned's Ill8me to any draft or check which may be payable to
Undersigned in order to collect the proceeds of any insurance or any
returned or unearned premiums in respect of any policies of
insurance requ:ired to be maintained hereunder; and (2) tak:e any
action Bank dec~ms necessary to perfect or maintain perfection of any
security interest granted to Bank herein, including executing any
document on Undersigned's behalf. (g) Undersigned shall bear the
risk of loss of, damage to, or destruction of the Collateral, and
Undersigned h(:reby releases Bank from all claims for loss or damage
to the Collateral caused by any act or omission on the part of Bank:,
except for willful misconduct. (h) The proihpt and faithful
performance of all of Undersigned's Obligations hereunder,
including without limitation, time of payment, is of the essence of this
Agreemen~. (i) Copies or reproductions of this document or of any
financing statetTI~nt may be filed as a financing statement.
12. Additional Power of Attorney. In addition to the powers of
attorney grantl~ to Bank by Undersigned elsewhere in this
Agreement, Undersigned hereby appoints Bank and its officers,
Page 3 of 4
~
10-20-'04 11:22 FROM-
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Oct-20-2004 08:32am
, PARTIES
-x;:bror n:unc (ltlsl name !in-t If individual) and maillot addl'C83:
.' ~ ~Al:,' SAN~ /lO
RP 3 {lOX m " '7 ~
,NEWVILLE, P^ 11241
Dcblar I\JlIlC (lMt nam" f1~t IT indh'idual) and JlIlIilin!; Idd.~
YOUllG'S FOOO Hl.ltKET
RD 3 lIol( ~ ",.....
f1EllVtLLI:, PA 17241
Debtur nam<= (l.ul name flllt I! individual) and IXIlIilina:.d<Jrc;u:
80(~ Putt(la.) namc(.) (last D8lIlC Mt iC iDdividu4l) Me!
addreu fIx 50CIIrity 11Iu:rcat information:
Mellon Rank, ..~.
1IllAfMOO lIail!t;lng loan Center
~ Mellon ~ Center! Rm. 15'-1~70
plttsbul"g~, PA lS2Sa-Ou01
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~ .ddtesa ror l<<llrity lnlc:rG( Jntormation.
Spcda1 'l)puGfl'uilC$ (~thpplieable):
a The tenDI "Pc:btor" and "Sa:ured Pant' meAll "U!Aec"
ad "Lcuor: (QIpcetM:1j.
C 'I'M Cerm& "Oc:bcor" ancl ~ Party" 1l1ea4 "Coadp><<"
pd "CoaI1lP'<<: I"IpcctiYdy.
o DdXor I&.ll TrauamIUiur; Ulili;y_
S~ PA.RTYSIGNATIIRE(S)
~ IWcmcu.t t. aw. with GIllY the 8f(lIhlcl Padta a/pnlm'e to
pcd'ect OICCdn"t)' IlltuaUn collatcnl (d1cc:kopplicablc ~~)-
a. [] ""jGltcd aRo:. chalice of AaDl~ ld"afI~ or OOl'padte ._arc
ottMDebtor.
b. C as 10 wbicb tbe 111I"1 balJ Zapud.
c:. alrcad1IlIbjCC:UOa &cQUitylnlet'e$t 11\ aJIufh"r ~lIDl1ln
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e.O wbIch Ia proccc:.da of th<scollat~ d=~ III block. 51,
in~hIcb a --'t11I1tete$t......... P~usl.1 perfected (1Ilaa <kseribc:
~ III block 9,If putdwod 'With c:W& J'rweed1 and lIot
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s.curcd Pan)' S~tve(.)
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MELlOM II
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.Deta~l report item #1 printed by: DOTTIE HOFFMAN on 2/22/01
._______________________________J___________~_________--------_________________
--------------------------------J-------------~--------------------------------
PENNSYLVANIA Dee DETAIL REPORT
DATA COVERAGE THROUGH
FES OS, 2001
SEAFCH COMPLETE])
FEG 22, 2001
U8:59 AM (CST)
._~-----------------------------------------------------------------------------
--------------------------------------------------------------------------------
Filing Location:
SECRETARY OF STATE OF PENNSYLVANIA
308 NORTH OfFICE BUILDING
HARRISBURG, PA. 17105-8722
Original Filing Number:
Original Filing Date:
26811373
06/23/1997
Collateral:
FURNITURE AND FIXTURES
HEREAFTER ACQUIRED PROPERTY
INVENTORY
MACHINERY AND EQUIPMENT
OTHER
Debtor:
KWAK, SANG HO
RD 3 BOX 672
NEWVILLE, PA. 17241-0000
Additional Debtor:
YOUNG'S FOOD MARKET
RD 3 BOX 672
NEWVILLE, PA. 17241-0000
Secured Party:
MELLON BANK NA
BUSINESS BANKING LOAN CENTER
PGH, PA. 15258-0001
TBE INFORMATION IN THIS REPORT IS PROVIDED IN CONFIDENCE SOLELY FOR YOUR USE IN
EVALUATING ACTUAL OR CONTEMPLATED BUSINESS TRANSACTIONS INVOLVING THE BUSINESS
ENTITY TO WHICH SUCH INFORMATION RELATES. NEITHER EXPERIAN NOR EXPERIAN'S
SOURCES WARRANT THE ACCURACY, COMPLETENESS, CURRENTNESS, MERCHANTABILITY OR
FITNESS FOR A PARTICULAR PURPOSE OF SUCH INFORMATION. IN NO EVENT WILL EXPERIAN
BE LIABLE FOR INDIRECT, INCIDENTAL, CONSEQUENTIAL OR SPECIAL DAMAGES RESULTING
FROM THE USE OF SUCH INFORMATION.
THE FOLLOWING DATA IS FOR INFORMATION PURPOSES ONLY AND IS NOT AN OFFICIAL
RECORD. CERTIFIED COPIES MAY BE OBTAINED FROM THE PENNSYLVANIA DEPARTMENT OF
STATE.
',),'
VERIFICATION
I, Joseph E. Sweeney, hereby certify that I am an Assistant Vice President of Citizens
Bank of Pennsylvania I have the authority to make this verification on its behalf. I hereby verify
that the factual averments contained in the foregoing complaint are true upon my personal
knowledge or information and belief. I understand that this verification is made subject to the
penalties of 18 Pa.C.S.A. ~ 4904 relating to unsworn falsification to authorities.
637979,]
.)J, t
HOURIGAN, KLUGER & QUINN
A PROFESSIONAL CORPORATION
BY: JAMES T. SHOEMAKER ESQUIRE
IDENTIFICATION NO. 63871
LAW OFFICES
600 Third Avenue
Kingston, PA 18704
(570) 287-3000
ATTORNEY FOR PLAINTIFF
MELLON BANK, N.A., now by assignment
CITIZENS BANK OF PENNSYLVANIA
8 West Market St.
Wilkes-Barre, PA 18701,
f' .)
IN THE COURT OF COMMON PLEAS ':~
OF CUMBERLAND COUNIY~; ~
" (>
" ,
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n
-0
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Plaintiff
vs.
CNIL ACTION -- LAW
~ .-#
ItEPLEVIN
( '\
0"
SANG HO KW AK, Individually and d/b/a
Young's Food Market, and YON HWA KWAK:
2208 Chatham Way
Harrisburg, PA 17110,
Defendants
NO. OLf -
Cl'al{c,-~
PLAINTIFF'S MOTION FOR WRIT OF SEIZURE
The plaintiff, Mellon Bank, N.A., now by assignment, Citizens Bank of Pennsylvania, by and
through its counsel, Hourigan, Kluger & Quinn, P.c., hereby submits, pursuant to Pa.R.C.P. 1075.1, its
motion for writ of seizure, against the defendants, Sang Ho. Kwak, individually and d/b/a Young's Food
Market, and Yon Hwa Kwak, as follows:
63g03 L 1
,\.
On even date herewith, the plaintiff is filing a complaint in replevin against the defendants, (A true
and con"ect copy of plaintiffs complaint in replevin is attached hereto pursuant to Pa. R.C.P. No, 1075.1 (b),
incorporated herein by reference pursuant to Pa. R.c.P. No. 1019(g) and marked as Exhibit "1.")
WHEREFORE, the plaintiff prays this Court to enter an Order directing the Prothonotary to issue
a writ of seizure to the Sheriff directing the Sheriff to seize the CollateraL
Respectfully submitted,
HOURIGAN, KLUGER & QUINN, P.C.
BY:
~5--
James T. Shoemaker, Esquire
ID No.: 63871
Counsel for the plaintiff, Mellon Bank, N.A., now by
assignment, Citizens Bank of Pennsylvania
600 Third Avenue
Kingston, PA 18704
Telephone (570) 287-3000
Facsimile (570) 287-8005
Dated: November l-.} , 2004
(,JXOJ LI
2
.)'
VERIFICA TION
I, Joseph E. Sweeney, hereby certify that I am an Assistant Vice President of Citizens
Bank of Pennsylvania I have the authority to make this verification on its behalf. I hereby verify
that the factual averments contained in the foregoing motion are true upon my personal
knowledge or infem!ation and belief. I understand that this verificatio~ is made subject to the
penalties of 18 Pa.C.S.A. S 4904 relating to unsworn falsification to authorities.
j-t/r
637979, t
)
HOURIGAN, KLUGER & QUINN
A PROFESSIONAL CORPORATION
BY: James T. Shoemaker, Esquire
IDENTIFICATION NO. 63871
LAW OFFICES
600 THIRD AVENUE
KINGSTON, PA 18704
(570) 287-3000
ATTORNEY FOR PLAINTIFF
MELLON BANK, N.A., now by assignment
CITIZENS BANK OF PENNSYLVANIA
8 West Market St.
Wilkes-Barre, PA 18701,
IN THE COURT OF COMMON PLEAS
OF CUMBERLAND COUNTY
Plaintiff
Ys.
CIVIL ACTION -- LAW
REPLEVIN
SANG HO KW AK, Individually and d/b/a
Young's Food Market, and YONHWAKWAK:
2208 Chatham Way
Harrisburg, P A 1711 0,
Defendants
NO.
2004
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
are served by entering a written appearance personally or by attorney and filing in writing with the
Court your defenses or objections to the claims set forth against you. You are warned that if you fail
to do so the case may proceed without you and a judgment may be entered against you by the Court
6379nl
~~.
-i:XHIBIT
11/1J
,).'
without further notice for any money claimed in the Complaint or for any other claim or relief
requested by the Plaintiff You may lose money or property or other rights important to you,
YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO
NOT HAVE A LAWYER, GO TO OR TELEPHONE THI~ OFFICE SET FORTH BELOW.
THIS OFFICE CAN PROVIDE YOU WITH INFORMATION ABOUT HIRING A
LAWYER
IF YOU CANNOT AFFORD TO HIRE ALA WYER, THIS OFFICE MAY BE ABLE
TO PROVIDE YOU WITH INFORMATION ABOUT AGENCIES THAT MAY OFFER
LEGAL SERVICES TO ELIGffiLE PERSONS AT A REDUCED FEE OR NO FEE.
COURT ADMINISTRATOR
Cumberland County Court House
Carlisle, P A 17013
(717) 249-1133
-or-
PENNSYL V ANlA LAWYERS REFERRAL SERVICE
P.O. Box 1086, 100 South Street
Harrisburg, P A 17108
(Pennsylvania residents phone:
1-800-692- 7375 ; out-of-state
residents phone: 1-717 -238-6715)
HOURIGAN, KLUGER & QUINN, P.c.
'-~;
BY:~"~
James T. Shoemaker, Esquire
Counsel for the plaintiff, Mellon Bank, N.A.,
now by assignment, Citizens Bank of
Pennsylvania
,~;
637973.1
HOURIGAN, KLUGER & QUINN
A, PROfESSIONAL CORPORATION
Al LAN M KI lJ~,1 I.,'
RICHARD M GOLORf l:;>(-j
JOSEPH ^ I ACH
RONALD V SANTQP^
JOSEPH E Io<lUGER
JAMES T SHOEMAKE:R
MICHAEL J KOWALSKI
RICHARD M WILLIAMS
Jl::.NNlrEh' L ROGE!~S 1.11 rZI-
,HY;' l'H t, U\JINN ,]I">
AR1HUR l PICCONE
RleHM.!D S BISHOP
nANIIl J OlSlAS10
DONAI [) C LIGORlt1
MICHU.Lf:. M. OUINN
DAVID AIKENS, JR
AMANOA V WRIGHT-KLUGER
MICHAEL ^ LOMBARDO III
LAW OFFICES
C,[)I]I l\/'vU IllH~I)I.'1 [~
GOO THIRD AVE NUE
434 '-ACKAWANt>JA ^V[NlIF
KINGSTON. PA 18704-5815
~CR^NTON I--'A lH'lO:J ')();/!
('J-;(I) JI1(1-l::H 1 <1
(570) 287-3000
FACSIMILE (570) 287-8005
E-MAIL: hkq@hkqpc.com
FACS1MIl E (fl70) <)61 ~:dJ7~)
OF COUNSEL
ROBERT C CORDARO
ANDREW HOURIGAN JR
1948-1978
Ext 1126
Direct e-mail: ishoemaker(iil.hkqpc.com
-ALSO MEMBER NJ BAR
November 23, 2004
Sang Ho Kwak, Individually
and d/b/a Young's Food Market
2208 Chatham Way
Harrisburg, P A 17110
Property Address:
Account No.:
Young's Food Market, RD 3 Box 672 Newville, PA 17241
0805386-0101
IMPORTANT NOTICE
THIS NOTICE IS SENT TO YOU IN AN ATTEMPT TO COLLECT A DEBT AND ANY
INFORMATION OBTAINED FROM YOU WILL BE USED ]~OR THAT PURPOSE.
UNLESS YOU, WITHIN THIRTY (30) DAYS OF RECEIPT OF THIS NOTICE, DISPUTE THE
VALIDITY OF THE DEBT, IT WILL BE ASSUMED TO BE VALID.
IF YOU NOTIFY THIS OFFICE IN WRITING WITHIN THIRTY (30) DA YS THAT THIS
DEBT, OR ANY PORTION THEREOF IS DISPUTED, WE WILL OBTAIN AND FORWARD
TO YOU A VERIFICATION OF THE DEBT OR THE JUDGMENT AGAINST YOU. WE
WILL ALSO PROVIDE, UPON WRITTEN REQUEST WITHIN THIRTY (30) DAYS OF THE
DATE OF THIS NOTICE, THE NAME AND ADDRESS OF THE ORIGINAL CREDITOR, IF
DIFFERENT FROM THE CURRENT CREDITOR.
- Very truly yours,
_/'
\ -,-'-
'---~.... e
,
'--fames T. Shoemaker, Esquire
JTS:je
THIS NOTICE DOES NOT SUPERCEDE YOUR OBLIGATIONS UNDER THE FOREGOING
NOTICE TO PLEAD
638028,2
:1'
HOURIGAN, KLUGER & QUINN
A PROFESSIONAL CORPORATION
BY: James T. Shoemaker, Esquire
IDENTIFICATION NO. 63871
ATTORNEY FOR PLAINTIFF
LAW OFFICES
600 THIRD AVENUE
KINGSTON, PA 18704
(570) 287-3000
MELLON BANK, N.A., now by assignment
CITIZENS BANK OF PENNSYLVANIA
8 West Market St.
Wilkes-Barre, PA 18701,
IN THE COURT OF COMMON PLEAS
01' CUMBERLAND COUNTY
Plaintiff
vs.
CIVIL ACTION -- LAW
REPLEVIN
SANG HO KW AK, Individually and d/b/a
Young's Food Market, and YON HW A KW AK :
2208 Chatham Way
Harrisburg, P A 17110,
Defendants
NO.
2004
COMPLAINT
The plaintiff, Mellon Bank, N.A., now by assignment, Citizens Bank of Pennsylvania (the
-
"Bank"), by and through its counsel, Hourigan, Kluger & Quinn, P.c., complains of the defendant, Sang
Ho Kwak, IndividuaIIy and d/b/a Young's Food Market ("Mr. Kwak"), R.D. 3, Box 672, Newville, PA
17241, as follows:
63~Olg.1
.).'
1. The Bank is a Pennsylvania state chartered bank conducting business in the
Commonwealth of Pennsylvania, having an office located at 8 West Market Street, Wilkes-Barre, P A
18711-01Ol.
2. Mr. Kwak is an adult individual with a last known address of2208 Chatham Way,
Harrisburg, PA 17110.
3. Upon information and belief, Yon Hwa Kwak is deceased.
4. On or about May 28, 1999, the Bank made a loan to Mr. Kwak, individually and
d/b/a Say-Ford Supermarket and Yon Hwa Kwak (jointly, the "Kwaks"), in the amount of
$395,000.00, as evidenced by a note, disclosure and security agreement (the "Note"). (A true and
correct copy of the Note is attached hereto as Exhibit "A" and incorporated herein by reference.)
5. In order to induce the Bank to make the aforesaid loan, Mr. Kwak granted the
Bank a security interest in , among other things, his equipment, machinery, motor vehicles,
furniture, fixtures, inventory, accounts and contract rights (collectively, the "Collateral"), as
evidenced by a security agreement (the "Security Agreement") and as protected by certain UCC-1
financial statements (the "UCC-1 Financial Statements"). (A tme and correct copy of the
Security Agreement and the UCC-1 Financial Statements is attached hereto as Exhibit "B" and
incorporated herein by reference.)
6. The Note was not assigned, except as stated above.
7. Mr. Kwak defaulted under the terms of the Note by failing to make monthly
payments of principal and interest due under the Note.
638018.1
2
)
. .
8. The fair market value of the Collateral is unknown, but is believed to be less
than the amount due and owing the Bank by the Kwaks under the Note,
9. The Bank believes and therefore avers that Mr. Kwak has possession of the
Collateral.
10. Mr. Kwak has failed and refused, despite repeated demands by the Bank, to pay
the balance due under the Note or to deliver possession of the Collateral to the Bank:.
11. The balance ofthe Note as of October 26, 2004 was $320,245.20, consisting of
principal in the amount of$311,149.22, accrued. interest in the amount of$8,512.74, and late
charges in the amount of$583.24, exclusive of attorneys' fees :md costs.
WHEREFORE, the Bank demands judgment in replevin in favor of the Bank and against
the Kwaks in the amount of $320,245.20, plus interest from October 26,2004, attorneys' fees
and costs, and requests this Court to enter an Order directing the Prothonotary to issue a writ of
possession to the Sheriff directing the Sheriff to seize the Collateral.
Respectfully submitted,
HOURIGAN, KLUGER & QUINN, P.e.
BY: ~S _'--
James T. Shoemaker, Esquire
ill No.: 63871
Counsel for the plaintiff, Mellon Bank, N.A.,
now by assignment, Citizens Bank of
Pennsylvania
600 Third A venue
Kingston, P A 18704
Telephone (570) 287-3000
638018.1
3
.~,
1!;:]ii:::~:~~~~~~~~ll::ilill;l:i!lll:!::ijijjl!!lj!!j:jji::'::::"",
$ 395,000.00
Promiso To Pay, FOR VALUE RECEIVED,and intending to be legally
bound, Undersigned, as defined below, promises to pay to:
Mellon Bank, N.A.
("Bank") or ils order at
Harrisburg, Pennsylvania
the sum of
Three Hundred Ninety Five Thousand and
00{100
Dollars ($ 395,000.00 ), ~wilh interest on the
outstanding balance from the date of: this Promissory Note
("Note") at the cate(s) ("Contractual Ratqs)") and in accordance
with the repaymcnt schedulc specified belqw.
Contractual Rate(s); Repayment Schedules. :
o Interest at a rate per annum:which is %
above Bank's Prime Rate, such rate to ch3nge from time to time
as of the effective date of each announce<I change in such Prime
Rate, shaU be paid when principal ~nts are due. Principal
shall be paid in consecutive D;lODthIy installments of
$ each, commencing 9n ,
and continuing thereafter on the i day of each month
with the balance of the indebtedness, if n~t sooner paid, due and
payable on :
o Interest at a rate per annum which is %
above the CD Rate, such rate to change from time to time as of
the effective date of each change in or r~g of the CD Rate,
shaU be paid when principal payments a~ due. Principal shall be
paid in consecutive mdpthly installments of
$ each, . I commencing on
, and continu~ thereafter on the
day of each month witli the balance of the
indebtedness, if not sooner paid,. que and payable on
I
I
o The principal balance ~f, together wilh aU
accrued and unpaid interest, shaU be "paid on
and interest at a rate per annum whicJ\i is % abov~
Bank's Prime Rate, such rate to change from time to time as of
the effective date of each announced chaqge in such Prime Rate
shall be paid on the day of eachj month commencing o~
, .
.-
I
I
o The principal balance ht' f, together with all
_accrued and unpaid interest, shaU be pa' on . ,
and interest at a rate per annum which . % above the
CD ~ate, such rate to .change from e to time as of the
eff~e date of each change in or resetti~ of the CD Rate, shall
be paId on the day of each ronth commencing on
I
o In no event shall the rate charged I' on this Note exceed
. % per annum.
I
o The principal balance~ h f, together with all
accrued and unpaid interest, shaU be pai on ,
and interest at the rate of % annum shall be paid
on the day of each th commencing on
IX! sA'" ~~est shall be calClJted at. the rate of
A . c;n % ,per annum. Principal and ~terest shaU be paid in
17q consecutive mon~ installments of
$ 3,'23,65 coch."
. . . 'I --fit .
, U"%1,t~'-ljl:9:n~!:li:!I:!::!;'!:!,:! '
07/01/1999 ,and continuing thereafter on thc 1ST
day of each month wilh lhe balance of the indebtedness, if nol
s<Xl,ncr p..l1d, due and p..lyable on 06/01/2014 . During any
penod that the <:Ontractual Rate(s) is reduced by 0.25% pcr
annum, as d~.cnbcd elsewhere in this Note installments of
princrl and interest shall instead be in 'the amounl of
$ ,864.70 each. If the reduction in the OJntractual
Ratc(s) is no longer in cffcct, the amount of installments of
principal and interest shall return to and be thc same as the amount
of such installments prior to the reduction in the OJntractual
Rate(s).
Undersigned shall pay Bank concurrently with the execution and
delivery hereof, or Undersigned previously has paid Bank, an
origi.nation fee I~~ $ .. ~, 950.00 , to compensate Bank
for Its underwnting, ongmatloo and administration of the loan
evidenced by this Note. This fee shall be deemed fully earned by
Bank on the date hereof, shall not be refunded, and is in addition
to any other fee~, costs or expenses which may be due and payable
hereunder.
Unless Undersi~:ned has authorized Bank to take payments out of
a Mellon Oleck:ing Account, as set forth below Undersigned will
mail or deliver to Bank the amount billed by Bank each month.
Undersigned will mail or deliver the payments so that Bank
receives all payments no later than the due date shown on each bill.
o Undersigned authorizes Bank to take all
payments of principal amI/or interest and/or other amounts due
under this Note out of Undersigned's Mellon Olecldng Account
Number . , titled in the name(s) of
, on or
after ~e _~ ~y of each ~nth. Undersigned will k:eep a
suffiCIent balance In this account to cover the fuU amounts of all
requir~ ~e?!S. At. its option, Bank may terminate
UndeCSlgned s abilIty to use this service. This authorization shall
remain in ~ffect until revoked by Undersigned in writing or until
the loan CVlden<:ed by this Note is paid in full or until Bank has
termin?ted Und(~rsi~ned's a~i1ity to use this service, as the case may
be. Poor lo matunty, while this authorization is in effect and
provided that Undersigned keeps a sufficient balance in this
account to cover the full amounts of all required payments, the
OJntractual Rate(s) shall be reduced by 0.25% per annum. This
authorization will be effective even though this Note and the
account may be titled in different versions of Undersigned's name.
If the -Original principal amount of this Note is in excess of
$10,000.00, or i:f U~dersigned is a corporation, ipterest shall be
calcu~t~ on ~e.basis of a 360~y year and actual days elapsed. If
the ongmal pnnclpal amount of this Note is $10,000.00, or less, and
Undersigned is not a corporation, interest shall be calculated on the
basis of a 365-day year or 366~y year, as the case may be, and
actual days elapsl~.
"Prime Rate" shall mean the interest rale per annum announced
from time to time by Bank as its Prime Rate. The Prime Rate may
be greater or less than other interest rates charged by Bank to
?ther borrowers. and is not sOlely based or dependent upon the
mterest rate which Bank may charge any particular borrower or
class of borrowers. .
If a single certiti<:3te of deposit is held by Bank as collateral security
for ~ i?debtedn~ evidenced by this Nole, as more fully
desa;abed 10 the ASSIgnment of Deposit Account expressly referring
to this Note! "CD Rate" s~lI meaQ, flIe interest rate paid by Bank
00 such certificat,e of depOSIt (the "~ifi~t~")' said CD Rate to be
";',' Page 1 of5
, ~y. I
;.
I
.,
reset by Bank at each renewal of thc Ce[ufi~tc_ If more than onc
certificate of deposit is hcld by Bank as collateral security for thc
indcbtcdness evidcnced by this Notc, as marc fully described in the
Assignmcnt(s) of Dcposit Account cxpressly referring to this Note,
.CD Rate" shall mean the highcst of the intcrcst ratcs paid by Bank
on such certificatcs of deposit (thc "Certificates"), said CD Ratc to
be rcset at each rcncwal of each Certificatc.
Late Charge, If any payment (including without limitation any
regularly scheduled paymcnt, balloon paymcnt or final payment) is
not paid within 15 calendar days after it is duc, Undersigned will pay
a late charge of thc greater of $25.00, or three percent (3%) of the
unpaid portion of the scheduled payment due (regardless of whether
the payment due consists of principal and interest, principal only or
interest only). Such late charge shall be in addition to any increase
made to thc Contractual Rate(s) applicable to the outstanding
balance hereof as a result of maturity of this Note or otherwise, as
well as in addition to any other applicable fees, charges and costs.
Default Rate(s); Post-Maturity Rate(s). Upon the occurrence of
any Event of Default (as defined in this Note), at Bank's option,
interest shaD accrue at a rate equal to two percent (2%) per annum
above the Contractual Rate(s) until the earlier of the date that such
Event of Default bas been cured or until and including the date of
maturity hereof.
After maturity, whether by acceleration or otherwise, interest shall
accrue at a rate equal to two percent (2%) per annum above the
Contractual Rate(s) until all sums due hereunder are paid. Interest
shall continue to accrue after the entry of judgment (by confession or
otherwise) at the Contractual Rate(s) until aD sums due hereunder
and/or under the judgment are paid, except that after maturity or, at
Bank's option, upon the occurrence of any Event of Default, interest
shall accrue at a rate equal to two percent (2%) per annum above
the Contractual Rate(s).
Books and Records; Time of Essence. So long as Bank is the
holder hereof, Bank's books and records shall be presumed, except
in the case of manifest error, to accurately evidence at all times all
amounts outstanding under this Note and the date and amount of
each advance and payment made pursuant hereto.
The prompt and faithful performance of all of Undersigned's
obligations hereunder, including without limitation time of payment,
is of the essence of this Note.
_ Security Interest, Setoff and Assignments. To secure all amounts
- at any time owing or payable under this Note and Undersigned's
obligations hereunder, as well as to secure all costs and expenses
incurred by Bank in the collection or enforcement of this Note or the
-protection of any collateral securing this Note (including without
limitation all advan~ made by Bank for taxes, levies, insurance,
filing fees, and repairs to or maintenance of said coUateral),
Undersigned hereby grants to Bank: a security interest in, lien upon,
and right of setoff against, all deposit accounts, credits, securities,
moneys, or other property of Undersigned which may at any time be
in the possession of, delivered to, or owed by Bank, including any
proceeds or returned or unearned premiums of insurance, and the
proceeds of aU the foregoing property. Other property, real or
personal, may secure this Note, as set forth in other documents and
agreements.
Undmigned aclmowledges and agrees that Undersigned shall
renew, or cause to be renewed, the Certificate(s), if any, until the
indebtedness evidenced by this Note has been paid in full.
Undersigned further agrees that Undersigned will execute, or will
cause to be executed, upon demand by Bank: any fioancing
statements or other documents, including, without limitation,
additft?oal Assignments of Deposit Account, which Bank: may deem
oeocssary or desirable to evidence, perfect or maintain perfection of
the security interests created in the Certificate(s) and any renewals,
replacements and substitutions thereof.
Additionul Tenus and Conditions
1. Cov6n8Irts. Undersigned c:ow:oants and agrees that until aU
indebtcdl1<~ evidenced hereby has been paid in fuU, Undersigned
shall: (a) maintain at aU timcs a positive tangiblc net worth; (b) (1)
havc all Environmental Pcrmits nccessary for thc conduct of cach
of Undersigned's businesses and operations, (2) conduet eaeh of
Undersigmxl's businesses and operations in matcrial compliancc
with aU applicablc Environmental Laws and Environmental
Permits, (3) not permit to cxist any event or condition that requircs
or is likely to require Undersigned under any Environmental Law
to payor expend funds by way of fines, judgmcnts, damagcs,
cleanup, n~mediation or the like in an aggregatc amount, thc
payment of which could reasonably be expected to interfere
substantia1l!y with normal operations of Undersigned or materially
adversely lllffeet the financial condition of Undersigned, (4) notify
Bank promptly upon becoming aware of any pending or threatened
proceeding, suit, investigation, allegation or inquiry regarding any
alleged event or condition that, if resolved unfavorably to
Undersign<::d or any of Undersigned's subsidiaries or affiliates, is
likely to cause Undersigned or any of its subsidiaries or affiliates
under any Environmental Law to pay or expend funds by way of
fines, judgments, damages, cleaning, remediation or the like, and
(5) provide at Undersigned's cost, upon request by Bank,
certificatiolllS, documentation, copies of pleadings and other
informatiOIl regarding the above, all in form and content
satisfactory to Bank:; (c) conduct each of Undersigned's businesses
and operations in material compliance with all federal,litate or local
laws, statutc:s, regulations, rules, ordinances, court or administrative
orders or d1x:rees, or private agreements or interpretations, now or
hereafter ill existence, directly or indirectly relating to or affecting
Undersigned's businesses or operations; (d) use the proceeds of the
loan evidCllGed hereby only for business purpose(s) specified to
Bank at or prior to the execution hereof; (e) promptly notify Bank
in writing .of any change in Undersigned's residence or Chief
Executive Office; (f) purchase and maintain policies of insurance
(mcluding 11l00d insurance) to protect against such risks and
casualties, und in such amounts, as shall be required by Bank
and/or applicable law, which policies shall (1) be in form and
substance satisfactory to Ban1c, (2) at Bank's option, designate
Bank: as loss payee and/Or as additional insured, and/or contain a
lender's loss payable endorsement, and (3) be (or certificates
evidencing ~;ame shall be) deposited with Bank; (g) (1) maintain
and keep proper records and books of account in conformance with
generally accepted accounting principles applied on a consistent
basis in which full, true and correct entries shall be made of aU
Undersigned's dealings and business affairs, (2) provide to Bank at
Undersigned's cost, upon Bank's request, financial or other
information, documentation or certifications (including without
limitation clinnual and periodic balance sheets and income
statements, personal financial statements, federal income tax
returns, inventory reports (including a description of raw materials,
finished goods, and the aging thereof, as applicable), and accounts
receivable and payable aging reports), all in form and content
satisfactory to Bank, and (3) permit, upon request by Bank, any of
the officers, employees or representatives of Bank to visit and
inspect any of Undersigned's properties and locations and to
examine jts books and records and discuss the affairs, finances and
accounts of Undersigned with representatives thereof, as often as
Bank may ((:quest; (b) provide additional collateral at such times
and having ~;uch value as Bank may request, if Bank: shall have
reasonable grounds for believing that the value of the collateral
securing the indebtedness evidenced by this Note has become
insufficient to secure said indebtednessj (i) pay, upon demand by
Bank, (1) all costs and fees pertaining to the filing of any financing,
continuation or termination statements, mortgages, satisfaction
pieces, judgments and any other type of document which Bank
deems neoes:;ary or desirable to be filed with regard to security
interests which secure the.. indebtedness evidenced hereby,
regardless of whether such secirity interests were granted by
Undersigned, and (2) aU oosts an<f~ incurred by Bank in
Page20f5
.' .~~j,. r
cOnnection with any collateral securing this Note (mcluding without
limitation all advances madc by Bank for taxes, Ievics, insurance,
repairs to or maintcnance of said collateral, apprai<>al or valuation
of said collatcral, and dctcrmination of flood hazard), regardlcss of
whcther such collatcral is owned by Undersigned; and (j) pay, upon
demand by Bank, all amounts incurred by Bank in connection with
any action or proceeding takcn or commenced by Bank to enforce
or collect this Notc, including attorncy's fees equal to thc lesser of
(l) 20% of the outstanding principal balance and intcrest thcn due
hcrcundcr or $500.00, whichcver is grcatcr, or (2) thc maximum
amount permitted by law, plus attorncy's costs and all costs of Icgal
proceedings.
2. Events of Default. The occurrence of any of thc following shall
constitute an "Event of Default" hcreunder: (a) default in payment
or performance of any of the indebtedness or obligations evidenced
by this Note or any other evidence of liability of Undersigned to
Bank; (b) the breach by any Obligor (defined as Undersigned and
each surety or guarantor of any of Undersigned's liabilities to Bank:
as welt as any person or entity granting Bank. a security interest in
property to secure any indebtedness) of any covenant contained in
this Note or in any separate security, guarantee or suretyship
agreement between Bank. and any Obligor, the occurrence of any
default hereunder or under the terms of any such agreement, or
the discovery by Bank of any false or misleading representation
made by any Obligor herein or in any such agreement or in any
other information submitted to Bank by any Obligor; (c) with
respect to any Obligor: (1) death or incapacity of any individual or
general partner, or (2) dissolution of any partnership or
corporation; (d) any assignment for the benefit of creditors by any
Obligor; (e) insolvency of any Obligor; (f) the filing or
commencement of any petition, action, case or proceeding,
voluntary or involuntary, under any state or federal law regarding
bankruptcy, insolvency, reorganization, receivership or dissolution,
including the Bankruptcy Reform Act of 1978, as amended, by or
against any Obligor; (g) default under the terms of any lease of or
mortgage on the premises where real or personal property securing
the indebtedness evidenced by this Note is located; (11) the
garnishment, tax assessment, attachment or taking by
governmental authority or other creditor of any property of any
Obligor which is in Bank's possession or which constitutes security
for any indebtedness evidenced hereby; (i) entry of judgment
against any Obligor in any court of record; (j) the assessment
against any Obligor by the 'Internal Revenue Service or any other
federal, state or local taxing authority of unpaid taxes, or the
issuance of a levy or the entering of a lien in connection therewith;
(k) change in control of or transfer of any interest in any Obligor
... (other than an Obligor who is an individual); (I) a determination by
Banlc, which determination shall be conclusive if made in good
faith, that a material adverse change has occurred in the financial
-or business condition of any Obligor; (m) the maturity of any life
insurance policy held as coltateral for the indebtedness evidenced
by this Note by reason of the death of the insured or otherwise; or
(n) default by Undersigned in the payment of any indebtedness of
Undersigned or in the performance of any of Undersigned's
obligations (other than indcbtedness or obligations evidenced by
this Note or any other evidcnce of liability of Undersigned to Bank)
and such default shalt continue for morc than any applicable grace
period.
3. Acceleration; Remedies. Upon the occurrence of any Event of
Default: (a) aU amounts due undcr this Note, including the unpaid
balance of principal and interest hereof, shall become immediately
due and payable at the option of Bank, without any demand or
notice whatsoever; and (b) Bank. may immediately and without
demand exercise any of its rights and remedies granted herein,
under applicable law, or which it may otherwise have, against
Undersigned or otherwise. Notwithstanding any provision to the
contrary contained herein, upon the occurrence of an Event of
Default as described in Section 2(f) hereo[, aU amounts due under
this Note, inc:luding w.<..JUt limitation the unpaid balance of principal
and inteccst hereof, shall become hnmediately due and payablc,
without any demand, notice or further action by Bank whatsoever,
and an action thcrcfor shaH immediately accruc.
4. Bank's Rights, Undersigned hcreby authorizes Bank, and Bank
shall have the continuing right, at its sole option and di'iCretion, to: (a)
do anything which Undcrsigned is required but fails to do, and in
particular Bank may, if Undersigned fails to do so, obtain and pay any
premiums payable on any policy of insurance rcquired to be obtained
or maintained hereunder; (b) direct any insurer to make payment of
any insurance proceeds, including any returned or unearned
premiums, directly to Bank, and apply such moneys to any
indcbtedness or other amount evidenced hereby in such ordcr or
fashion as Dank may elect; (c) pay the proceeds of the loan evidenced
by this Note 10 any or all of the Undersigned individually or jointly, or
to such other person(s) as any of the Undersigned may direct, except
to the extent otherwise provided in Section 6 hereof; and (d) add any
amounts paidl or incurred by Bank: under Section 1(i), Section 1(j) or
Section 4(a) to the principal amount of the indebtedness evidenced
by this Note.
5. Authorization to Borrow. Undersigned hereby represents, warrants,
certifies and covenants as follows:
(a) If Undersigned is a corporation, that the person(s) signing below
hold(s) the office(s) indicated below (and continue to hold such
office(s) untiJI Bank has received notice to the contrary in writing
from Undersigned), and that the Board of Directors of Undersigned
has adopted resolutions providing that: (1) the person(s) executing
and delivering this Note on behalf of Undersigned Ware authorized
(i) to incur indebtedness and obligations on behalf of Undersigned by
borrowing or making other financial arrangements with Bank from
time to time, upon terms and conditions as they in their sole
discretion deem desirable, (d) to mak:e, execute and deliver
promissory notes, letter of credit agreements, security agreements,
assignments, mortgages and aU other documents required by Bank in
connection with the incurring of ind~tedness or obligations, and (ui)
to assign and pledge as collateral security for any such indebtedness
or obligations, now or hereafter existing, any real or personal
property of Undersigned; (2) the actions of anyone or more officers
of U ndersign<:d in borrowing money from Bank: heretofore for the
account of Undersigned, in assigning or pledging any of
Undersigned's property for the payment thereof, or in doing any
other act in connection therewith are hereby ratified, confirmed and
approved; and (3) said resolutions shall have the force of a continuing
agreement with Banlc, and shall be binding upon Undersigned until a
resolution am<~nding them shall have been duly and legally adopted
and Bank: furnished a certified copy thereof.
"
'-
~
power of any of the partners to represent said firm, whether by
expiration of the partnership agreement, by death or retirement
of any partner, or the accession of one or more new partners, or
othcrwise, and notwithstanding any othcr notice thercof Bank
may receive, this authority shall continue to be binding upon cach
of the Undcrsigned individually and upon their legal
representatives, and upon Undcrsigned and its successors, until
Bank has receivcd notice in writing to the contrary signed by one
of the Undersigned or by Undersigncd's duly authorizcd agent
(Rcceipt of such notice will not relieve any partncr of any liability
arising from obligations incurred prior to Bank's receipt of such
notice.), and (5) nothing herein shall be construed to limit the
rights granted to a partner by law or by thc partnership
agrecment, but all rights granted herein shall be in addition to
such rights.
6. Definitions; Misceffaneous Provisions. (a) Undersigned waives
(except where requested hereby) notice of action taken by Banle;
and hereby ratifies and confirms whatever Bank: may do. Bank
shall be entitled to exercise any right notwithstanding any prior
exercise, failure to exercise or delay in exercising any such right.
(b) Bank shall retain the lien of any judgment entered on account
of the indebtedness evidenced hereby. Undersigned warrants that
Undersigned has no defense whatsoever to any action or
proceeding that may be brought to enforce or realize on any such
judgment. (c) If any provision hereof shall for any reason be held
invalid or unenforceable, no other provision shall be affected
thereby, and this Note shaD be construed as if the invalid or
unenforceable provision had never been a part of it. The
descriptive headings of this Note are for convenience only and
shall not in any way affect the meaning or construction of any
provision hereof. (d) The rights and privileges of BanIc contained
in this Note shall inure to the benefit of jts successors and assigns,
and the duties of Undersigned shall bind all heirs, personal
representatives, successors and assigns. (e) This Note shaD in aU
respects be governed by the laws of the state in which this Note is
payable (except to the extent that federal law governs). (f)
Undersigned hereby irrevocably appoints Bank and each holder
hereof as Undersigned's attorney-in-fact to endorse
Undersigned's name to any draft or check: which may be payable
to Undersigned in order to collect the proceeds of any insurance
or any returned or unearned premiums in respect of any policies
of insurance required to be maintained hereunder. Undersigned
hereby acknowledges that this appointment of Bank and each
holder hereof as attorney-in-fact is irrevocable and is coupled
with an interest. (g) Undersigned assigns to Bank all moneys
which may become payable on any policy of insurance required to
be maintained under this Note, including any returned or
unearned premiums. (h) "Environmental Law" means any
_ federal, state or local environmental law, statute, regulation, rule,
ordinance, court or administrative order or decree, or private
agreement or interpretation, now or hereafter in existence,
relating to the manufacture, distribution, labeling, use, handling,
collection, storage, treatment, disposal or otherwise of Hazardous
Substances, or in any way relating to pollution or protection of
the environment or public health. (i) "Environmental Permit"
means any federal, state or local permit, license or authorization
issued under or in connection with any Environmental Law. (j)
"Hazardous Substances" means petroleum and petroleum
products, radioactive materials, asbestos, radon, lead
containing materials, sewage or any materials or substances
defined as or included in thc dcfinition of "hazardous wastes,.
"hazardous substances," "hazardous materials," "toxic
substances," "hazardous air pollutants," "toxic pollutants,"
"pollution," or terms of similar meaning, as those terms arc
uscd in any Environmental Law. (k) "Chicf Exeeutivc Office"
mcans the place from which thc main part of the business
operations of an entity is managed. (I) "Undcrsigncd" refers
individually and collcctively to all makcrs of this Note,
including, in :thc case of any partnership, all gcneral partners of
such partner.iliip individually and coDectively, whether or not
such partners sign below. Undersigned shaU each be jointly and
severally bound by the terms hereof, and, with respect to any
partnership (Jrccuting this Note, each general partner shall be
bound hereby both in such general partner's individual and
partnership capacities.
7. Direction tGI Pay Proceeds.Undersigned hereby authorizes and
directs Bank: to pay the proceeds of this Note by: . ' .~
ft " 1.),~7'1;'cI,1 f/I 1)6./,:
creditiogAceount Number oco- vl. 777 I (JIll LU
in the name of / /
5{1N6 UO ~DtJ JfWit K\J!f(\.
in tile amoun:t 0($ I . . _I
I R 5 q 00 b/.ljl-Jt?Cj mtl/clV
''{7)paying fh.0m :fi (PI' 2. ID}-fJ7:J#f2 G,cjS- _
/'\ A ""rI :t1,3 J .305.3- iUq '<2-1 lL
the amount of $ .
~ying f)lf1JtJ/CnL! 9/;)tjt/-/P'l
the amount 0:[ $
8. Affidavit ofJ'3usiness Loan.(1bis Affidavit is not applicable if
Undersigned is a corporation.) Undersigned, being duly
authorized, d'~pose(s) and say(s) under penalty of perjury that
Undersigned: .
(a) WAre elligaged in business astXI Owoer(s), 0 General
Partner( s) of: (name and nature of business)
YOUNG~?ooD MARKET AND .
SAY-F<>fW- SUPERMARKET 'I (. y 1'-
FOOD MARKET
(b) Hereby make(s) application to Bank for a loan, the
proceeds ofwrnch will be utilized for the purpose(s) of
REFINANC]~ MELLON DEBT, OTHER DEBT
CONSOLID1~TION & EQUIPMENT & INVOICE
PURCHASE
(c) Exercise(s) actual control over the managerial decisions of
the business.
(Remainder of page intentionally lell: blank)
.....1..
':~V' Page40f5
.~; .
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"-
9~ Confession of Judgment. UNDERSIGNED HEREBY
EMPOWERS TIlE PROTIlONOTARY OR ANY
ATIORNEY OF ANY COURT OF RECORD TO APPEAR
FOR UNDERSIGNED AND TO CONFESS JUDGMENT
AS OFTEN AS NECESSARY AGAINST UNDERSIGNED
IN FAVOR OF TIlE HOLDER HEREOF, REGARDLESS
OF WHETHER ANY EVENT OF DEFAULT HAS
OCCURRED, AT ANY TIME AND AS OF ANY TERM,
FOR TIlE OUTSTANDING PRINCIPAL BALANCE
HEREOF l'LUS INlEREST DUE UNDER nlE TERMS
HEREOF AND ALL OTIffiR AMOUNTS DUE
HEREUNDER, TOGETIlER WIlli COSTS OF LEGAL
PROCEEDINGS AND AN ATrORNEY'S COMMISSION
EQUAL TO TIlE LESSER OF (A) 20% OF TIlE
OUTSTANDING PRINCIPAL BALANCE AND
INTEREST TllEN DUE HEREUNDER OR $500,00,
WIIICIIEVER IS GREATER, OR (13) TIlE MAXIMUM
AMOUNT PERMITTED BY LAW, WIlTI RELEASE OF
ALL ERRORS. UNDERSIGNED WAIVES ALL LAWS
EXEMPTING REAL OR PERSONAL PROPERTY
FROM EXECUTION.
By signing this Note, Undersigned agrees to all terms of the Note and swears, under penalty of perjury (as set forth in
18 Pa.C.s. ~904, if governed by Penn$ylvanla law), to the Amdavit of BIllslness Loan (If completed) set forth In
Section 8 ofthis Note.
Witness the due execution hereof under seal.
x
Witness:
:itne~~
--
Mdlon Banlc, NA
Mellon Banlc (DE) National Association
CL-4S0 Rev.(IQfJ6) LC. 9196 ill 9196
0275 r 166~-3823 1 d4S43(OI)
OS2799.160S
~)Z~l' .
-- X ~ . \ . eat)
, ,
D/B/A~U 's FOOD MARKET AND _ _ _
sAy -F ~T S"fi i - FL- /:?_J. S.:- / '?,F<"~?7,.i I.! I( ,2 /
672 B ERVILLE ROAD . / /
NEWVILLE, PA 17241 } lL- 7K-
Individual:
~~AK IJ.vp- I~~ (Seal)
672~LOSERVILLE ROAD
NEWVILLE, PA 17241
-,;~;;-
Page 5 of 5
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For value received, and intending to be legally bound, in
consideration of a loan or other credit accommodation in the
amount of
Three Hundred Ninetv Five Thousand and
00/100
Dollars ($ 395,000.00 ) made by
Mellon Bank. N.A.
("Bank") to
SANG HO KWAK, INDIVIDUALLY AND
~/~S FOOD ~ ~
SAY- . SUPERMARKET V
("Borrower(s)"), said obligation evidenced by a
~ROMISSbRY NOTE
dated ~ --:;-- Ol-fi. '1 '1 , (the "Note")
Undersigned, intending to be legally bound, hereby agrees as
follows:
1. Security Interest. Undersigned hereby grants to Bank a security
interest in the following property now owned or hereafter acquired
by Undersigned:
(Certain terms used herein are defined in Section 13 below.)
IX) ~ ~ /(a) aU equipment, wherever located, including
ma ry, m tor vehicles, furniture and fixtures;
IX) ~ r'f;n inventory (whether held for sale or lease or to
be . Cd under contracts of service), raw materials, work: in
process, and materials used or consumed in the conduct of
Undersigned's business, and all books, records, invoices or other
documents which describe or evidence the same;
. IX) c-'P Y &Y all accounts, contract rights, general intangibles,
~ chases in action, instruments, documents (including
all documents of title and warehouse receipts) and all rights to the
payment of money, however evidenced or arising;
o (d) all securities; all cash, stock or other dividends or
distributions paid upon or made in respect of such securities in any
form; aU securities received in addition to or in exchange for such
securities; and all subscription rights incident to such securities;
0-
(e) all farm products; and
o (I) all property or rights described below under the
caption "Description of Collateral."
Description of Collateral (Give a sufficiently detailed description
to identify each item),
In addition to the foregoing, Undersigned: (1) grants to Bank a
security intereS1t in all accessions, parts, accessories, attachments and
appurtenances in any way used with, attached or related to, or
installed in, or intended to be so used, attached, related to or installed
in, any equipment or inventory constituting "Collateral" hereunder;
(2) grants to Bnnk a security interest in all substitutions for, renewals
of, improvements, replacements and additions to, and the products
and proceeds (cash and non-cash) of all of the foregoing property
and any insurance policies relating thereto; (3) grants to Bank a
security interest in, lien upon, and right of setoff against, all deposit
accounts, credits, securities, moneys or other property of
Undersigned which may at any time be in the possession of, delivered
to or owed by Bank, including any proceeds or returned or unearned
premiums of insurance, and the proceeds (cash and non-cash) of all
the foregoing property; and (4) assigns to Bank all moneys which may
become payabk: on any policy of insurance required to be maintained
under this Agreement, including any returned or unearned
premiums.
All such property subject to Bank's security interests described in this
Section 1 is referred to herein collectively as the "Collateral." With
respect to Section 4 hereunder, the term "Collateral" shall not include
the property dCliCribed in Subsection (3) of this Section 1.
All security int<<:rests in Collateral shall be deemed to arise and be
perfected unde,r and governed by the Uniform Commercial Code,
except to the Q1ent that such law does not apply to certain types of
transactions or Collateral, in which case applicable law shall govern.
2. Obligations Secured. The Collateral shall secure the following
obligations ("Obligation(s)"): (a) all amounts at any time owing or
payable under the Note, and any other indebtedness, liability or
obligation ofBorrower(s) or of Undersigned to Bank, now existing or
Page 1 of 4
in addition to the rights given to Bank in this Agreement, Bank
shall have all the rights and remedies of a secured party under any
applicable law, including without limitation, the Uniform
Commercial Code.
8. Additional Representations. In addition to the representations
and warranties set forth elsewhere in this Agreement, Undersigned
hereby makes the following representations and warranties which
shall be true and correct on the date of this Agreement and shall
continue to be true and correct at the time of any borrowing under
any line of credit with Bank and until the Obligations secured by
this Agreement shall have been paid in full: (a) each account: (1)
represents an amount actually owing to Undersigned by the
account debtor (less discounts allowed for prompt payment); (2) is
valid and enforceable according to its terms without further
performance of any kind; (3) is not evidenced by any instrument or
chattel paper unless the original of such instrument or chattel
paper has been deposited with Bank; and (4) is not evidenced by
any judgment unless such judgment bas been assigned of record to
Bank; and (b) the locations of all of Undersigned's places of
business are as stated below, and the inventory and records of the
accounts are kept at the places indicated below.
9. Additional Covenants. In addition to the covenants set forth
elsewhere in this Agreement, Undersigned covenants and agrees
that until the Obligations secured by this Agreement have been
paid in full Undersigned shall: (a) immediately notify Bank in
writing in the event that any of the following occurs: (1) any
account is or becomes entitled or eligible for discount for prompt
payment; (2) any account debtor bas or may have any defense to
payment of, or right of setoff, counterclaim, or recoupment against
any account; (3) any account represents an amount which is
disputed by the aCcount debtor or the payment of which is in any
way contingent or conditional; or (4) the desirability, usefulness, or
marketability of any of the inventory bas been in any way reduced
or impaired by reason of physical deterioration, technical
obsolescence, or otherwise; (b) keep accurate and complete books
and records in accordance with generally accepted accounting
principles and, at Undersigned's expense, promptly furnish Bank
such information and documents relating to the Collateral at such
times and in such form and detail as Bank: may request, including
without limitation: (1) copies of invoices or other evidence of
Undersigned's accounts and schedules showing the aging,
identification, reconciliation, and collection thereof; (2) evidence of
shipment and receipt of goods and the performance of services or
obligations covered by accounts; and (3) reports as to
Undersigned's inventory and purchases, sales, damage, or loss
thereof; all of the foregoing to be certified by authorized officers or
other employees of Undersigned; (C) not change any location listed
below regarding places of business, inventory and records of
accounts without Bank's prior written consent; (d) at
Undersigned's expense, diligently collect the accounts on behalf of
Bank: until such time as Bank exercises its right to direetly collect
the accounts, and upon notice from Bank, deliver all proceeds of
accounts to Bank forthwith upon receipt, in the original form in
which received; (e) immediately upon Bank's request, open a cash
collateral account ("Cash Collateral account") at Bank and deposit
therein all cash proceeds of collections on the accounts; (f)
immediately upon Bank's request, give the Bank assignments, in
form acceptable to Bank, of specific accounts or groups of accounts
and specific general intangibles, and immediately repay the amount
loaned against any account so assigned to the Bank if the contract
with the account debtor is breached, cancelled or terminated; (g)
immediately upon Bank's request, furnish Bank: with all
information received by Undersigned regarding the financial
condition of any account debtor, except to the extent prohibited by
law; (h) immediately deliver to Bank all instruments, documents or
chattel paper representing any of the Collateral and immediately
assign of record to .Bank any judgment representing any account
constituting Collateral; and (i) immediately upon Bank's request,
mark its records evidencing its accounts in a manner satisfactory to
Bank so as to show which accounts have been assigned to Bank.
10. Additional Rights of Bank. In addition to the Bank's rights set
forth elsewhere in this Agreement, Undersigned hereby authorizes
Bank, and Bank shall have the continuing rights at any time, whether
or not any defllult has occurred under this Agreement, and at its sole
option and dis<:retion, without notice, to: (a) take over and collect any
or all of the accounts and to take any other action pursuant to its
power of attorney granted herein; (b) exercise absolute and exclusive
dominion and control over all funds deposited in the Cash Collateral
account; apply any funds therein against any Obligations; and charge
to any deposit account ot Undersigned any Item ot payment credited
to the Cash Collateral account which is subsequently dishonored; (c)
at any reasonable time, through its authorized agents and employees,
inspect, audit, and verify the accounts and the inventory, review
Undersigned's books and records, and copy or make excerpts from
any document; and (d) verify accounts with debtors in the name of
Undersigned, Bank, or Bank's designee.
11. MisceUaneous Provisions. (a) Undersigned waives protest of all
commercial paper at any time held by Bank on which Undersigned is
in any way liable, notice of nonpayment at maturity of any and all
accounts, and (except where requested hereby) notice of action taken
by Banle; and lI1ereby ratifies and confirms whatever Bank may do.
The rights and remedies of Bank: hereunder are cumulative. Bank:
shall be entitl4~ to exercise any right notwithstanding any prior
exercise, failure to exercise or delay in exercising any such right. (b) If
any provision hereof shall for any reason be held invalid or
unenforceable, no other provision shall be affected thereby, and this
Agreement shall be construed as if the invalid or unenforceable
provision bad never been a part of it. The descriptive headings of this
Agreement are for convenience only and shall not in any way affect
the meaning 01' construction of any provision hereof. (e) The rights
and privileges of Bank contained in this Agreement shall inure to the
benefit of its successors and assigns, and the duties of Undersigned
shall bind all b:irs, personal representatives, successors and assigns.
(d) No modification of this Agreement, nor any waiver of any
provision hereof, shall be effective or enforceable unless set forth in
writing and sigr,led by an officer of Banlc. (e) This Agreement shall in
all respects bl: governed by the laws of the state where the
Obligations are payable as reflected in the document(s) evidencing
such Obligations (except to the extent that federal law governs), and
all references to the Uniform Commercial Code shall be deemed to
refer to the Uniform Commercial Code as enacted in such state. (f)
Undersigned hereby irrevocably appoints Bank and each holder
hereof as Undersigned's attorney-in-fact to: (1) endorse
Undersigned's name to any draft or check: which may be payable to
Undersigned in order to collect the proceeds of any. insurance or any
returned or unearned premiums in respect of any policies of
insurance required to be maintained. hereunder, and (2) tak:e any
action Bank: de<:rns necessary to perfect or maintain perfeetion of any
security interest granted to Bank herein, including executing any
document on Undersigned's behalf. (g) Undersigned shall bear the
risk of loss of, damage to, or destruction of the Collateral, and
Undersigned hereby releases Bank from all claims for loss or damage
to the Collateml caused by any act or omission on the part of Bank,
except for willful misconduct. (h) The prOlhpt and faithful
performance of all of Undersigned's Obligations hereunder,
including without limitation, time of payment, is of the essence of this
Agreement. (i) Copies or reproductions of this document or of any
financing statem~Qt may be filed as a financing statement.
12. Additional Power of Attorney. In addition to the powers of
attorney grantl~d to Bank by Undersigned elsewhere in this
Agreement, Undersigned hereby appoints Bank and its officers,
Page 3 of 4
10-20-'04 11:22 FROM-
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. P}.RTI~
----n:bu.r name (lluit name umit indiWlun1) artd malllnt add=:
. _ ~ lCIJAK,' SANe; /lo
. .
RP 3 !lOX m (. '7 :L-
,N~WVILLE. PA lr.241
Deb..... I\lIlIlC (ia&l. name flI'-1t if indMdual) and JlIlIiling add~
YDU!lG's Fooo MARKET
IlO 3 sOl( ~ ",....
tlEllV(LlE, PA 17241
Dcblur nilii<' (IUl n.3me fllll Ie individUAl) and mllllin,addlar.
8ee1lftCl Partt(l-) JWIlC(I) (Wt lI11me fmt iCindividuaI) and
addr<* w.- 50CIIrity 11Iu:ra1 infOrmation:
Mellon aank~ M.A.
~fMG. W41*(ng Loan Centu
~ Mellon ~ ccnttr6 R~. 15'-1~70
Pltt$burgh. PA 1S2S!-O 01
1-
Aalpec(.) of ~d p~ -Ca) (Ia.st name tIrst It lndLvld\1ll)
~ addteR fOt: &Cellrily Inlens( Intormation.
Spcd81'1>>>u.'~ (cb<;QciCappncabk):
[] 'the tuma "Pcbllx" 2.lld "Sccul'l:d Pant' IlloWI ~
allII "Lcuor,- fQI~1.
C no cenu. "Oc:bc0l"' and "$ccuRxI1'Atty" 1l1ea4 "ColIci~.
pd "CoatIpQr,WlQpcclNdy.
o DdlC.x" JI'lnmmlUiuJ: UIl"Uty.
S~CURED PARTY SIGNATDRE(S)
11ak aWccbco.t '-aw 1I1(11.nJy the 8eeue4 PuC"'~ lQ
perfect II 1CCdn'1y InterelUn collat~ (check IIpp1icablc bQ.( <<)) -
.. [] """idlted after a chao~ ot~e, Idcad1(y WClOrpcxate ~e
of the Debtor.
b. 0 as l.Q which lhc IIIJ"I blI& lapud..
eo attcad11ubJOQt to a .comly intCt'Cl:! III anufJur e4DDI;J In
J'amsyJ.-an1a -
o l'tbCll dlo colla~...l,.... m.,," to this 00Wl11.
o wilen the: Deblor'lI aul.lmee 01' J>lacc ol:bvaIn_ lI'N )Roved
to tIIi.I county.
cl. aIt'eacfy '\IbJQ;t 10 a accdrlty Int<:ceat (a IUlOlhcr .)udodtctSo.. _
o wilen Ule caDate..l...... IIIO"H to Pcllll&)'lYaAl2.
D wilen [he Dcbl6t'1 I6aaUoa "a h\01'H 10 PauIq'IVlIlIia.
eoO wIilch.. ~ of thccoUaleal describo!d ia block 9,
In...hkba 8Oattil)' lliIerect -- ~ti perfected Cabo dambc
~ III block 9, Ifplltl:lwod '&'ilk cuh ~ and lIot
adcqUAtclt deterlbot on \b4 odgtmt fll1lUlallC 100teDWlt).
Secured Party SltpAtu<:(lI)
(requited Ol\ly lC~ca) ... d.ec:tcd above):
MeLLON B
ST.ucDARD POlU(- pCllU'(l'A Ucx::.l (Rd.3193)
AppcovoI1>y~dCo_oDW<&1d< c>lP"".oytv&llia
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t11'lMllCINU N'i~'TKMmT
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I' A :;) / JMPORTAr-IT - Please read lnstrucIioIIlI
1c..v1 V Q\r...rutl~ bt:fore completing
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::: ;",;r,~';1 :'::~"''''~r DEED'
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::;" ~.l:; i:.;1 L A'(O COUNTY - f'A
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1 5
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Ickutlry ~ral by 1cell1lUldIbr r,yp.;: ,.,i, '~~.i~' :/'4 ,;
ALL oeaTM'C _ICHT, Tt1t\.E. AND IllTElEST~"\lKET1\E1t IIOU OR
HEREAFTER fOXISTIICG OR ~lcaulllEll.~ ,III AND. TO:ALL IIIVEIITQRY
(INCUlOING ael1JRNEll Clll. REPOSSESSeD COODS)'; AcaJUIITS. OPEl(
ACaurrS. GEN~sv.1.. IIlTAJ/GI9lfS, 'POClJI(EJITS-~'1;QfAn(L '''''Ell,
INSTRlAEIlTS, IIOTES, DRJlfts. WTERS.ClR AO(jIUS Of CRl;DIt.
RECEIVABlES, orltER >>tt'lIlTS (lI((NQ To llEaTOl~ FIXTURES.
FURIlITlJll.E AID eQl./IPMl!Jl1~, ALL ~COIJC'(S Al/fI -CASH AIID
llOlI-tIIS1t PRQCEEl)$ (111ClmUIQ JIISllRAlI~ 'OllelEs AIlD
I'Rot:Ea)$) ~ TIlE RJIU:Q(llllG AlID AU .GUAlWlTtES. CLAIMS,
RIGHTS, REKEOIES AI<<) P~:fVlt.EGES.lCu.nljl1::TIleIl.ETO.
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(d\eeltappropriatelx:lK(ea))-. . . r";,~ ",;';:.' .
a. 0 etvpI p;uwiui:ortobcPaOu-': '~.' -' .~.
b. I2I &oOO.w1skls,...,ot'_'IObcea=e,l(xt~ <>:"7
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d. a &<<011.... rcllu1ctrl& fr6II~ uic-..L;d";r;..~;,~ i1ae IIIcc (iadudin, ail.ad J") at
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Detail report item #1 printed by: DOTTIE HOFFMA1\r on 2/22/01
. .
================================~==============================================
PENNSYLVANIA uee DETAIL FEPORT
DATA COVERAGE THROUGH
FEG 05, 2001
SEAHCll C:()M[,LET1'~]}
FEB 22, 2 () 0 ]
08 : ~) C) AM (C; T )
--------------------------------------------------------------------------------
---------------------------------------------------------------------------------
Filing Location:
SECRETARY OF STATE OF FENNSYLVANIA
308 NORTH OfFICE BUILDING
HARRISBURG, PA. 17105-8722
Original Filing Number:
Original Filing Date:
26811373
06/23/1997
Collateral:
FURNITURE AND FIXTURES
HEREAFTER ACQUIRED PROPERTY
INVENTORY
MACHINERY AND EQUIPMENT
OTHER
Debtor:
KWAK, SANG HO
RD 3 BOX 672
NEWVILLE, PA. 17241-0000
Additional Debtor:
YOUNG'S FOOD MARKET
RD 3 BOX 672
NEWVILLE, PA. 17241-0000
Secured Party:
MELLON BANK NA
BUSINESS BANKING LOAN CENTER
PGH, PA. 15258-0001
T~E INFORMATION IN THIS REPORT IS PROVIDED IN CONFIDENCE SOLELY FOR YOUR USE IN
EVALUATING ACTUAL OR CONTEMPLATED BUSINESS TRANSACTIONS INVOLVING THE BUSINESS
ENTITY TO WHICH SUCH INFORMATION RELATES. NEITHER EXPERIAN NOR EXPERIAN'S
SOURCES WARRANT THE ACCURACY, COMPLETENESS, CURRENTNESS, MERCHANTABILITY OR
FITNESS FOR A PARTICULAR PURPOSE OF SUCH INFORMATION. IN NO EVENT WILL EXPERIAN
BE LIABLE FOR INDIRECT, INCIDENTAL, CONSEQUENTIAL OR SPECIAL DAMAGES RESULTING
FROM THE USE OF SUCH INFORMATION.
THE FOLLOWING DATA IS FOR INFORMATION PURPOSES ONLY AND IS NOT AN OFFICIAL
RECORD. CERTIFIED COPIES MAY BE OBTAINED FROM THE PENNSYLVANIA DEPARTMENT OF
STATE.
,}'
VERIFICA TION
I, Joseph E. Sweeney, hereby certify that I am an Assistant Vice President of Citizens
Bank of Pennsylvania I have the authority to make this verification on its behalf. I hereby verify
that the factual averments contained in the foregoing complaint are true upon my personal
knowledge or information and belief. I understand that this veJification is made subject to the
penalties of 18 Pa.C.S.A. ~ 4904 relating to unsworn falsification to authorities.
637979,1
',\" '
NO\} 3 G 2nul, t
HOURIGAN, KLUGER & QUINN
A PROFESSIONAL CORPORATION
BY: JAMES T, SHOEMAKER ESQUIRE
IDENTIFICATION NO, 63871
LAW OFFICES
600 THIRD AVENUE
KINGSTON PA 18704-5815
(570) 287-3000
ATTORNEY FOR PLAINTIFF
MELLON BANK, N.A., now by assignment
CITIZENS BANK OF PENNSYLVANIA
8 West Market St.
Wilkes-Barre, PA 18701,
IN THE COURT OF COMMON PLEAS
OF CUMBERLAND COUNTY
Plaintiff
vs.
crVIL ACTION -- LAW
REPLEVIN
SANG HO KW AK, Individually and d/b/a
Young's Food Market, and YON HWA KWAK:
2208 Chatham Way
Harrisburg, PA 17110,
Defendants
NO.(Jli-5q~ 2004
BRIEF IN SUPPORT OF PLAINTIFF'S MOTION
FOR WRIT OF SEIZURl8:
The plaintiff, Mellon Bank, N.A., now by assignment, Citizens Bank of Pennsylvania (the
"Bank"), by and through its counsel, Hourigan, Kluger & Quina, P.c., hereby submits its brief in
support of plaintiffs motion for writ of seizure against the defendants, Sang Ho Kwak,
individually and d/b/a Young's Food Market ("Mr. Kwak") and Yon Hwa Kwak (jointly, the
"Kwaks"), as foUows:
I. HISTORY OF THE CASE
The Bank is a Pennsylvania state chartered bank conducting business in the
Commonwealth ofPcnnsylvania, having an office located at 8 West Market Street, Wilkes-
Barre, Luzerne County, PA 18711. Mr. Kwak is an adult individual having a last known address
638041.1
>,
of2208 Chatham Way, Harrisburg, PA 17110. Upon information and bclicf, Yon Hwa Kwak is
deceased,
On or about May 28, 1999, the Bank made a loan to Mr. Kwak, individually and d/b/a
Say-Ford Supermarket and Yon Hwa Kwak (jointly, the "Kwaks"), in the amount of$395,000.00
as evidenced by a note, disclosure and security agreement (the . 'Note"). (A true and correct copy
ofthe Note is attached hereto as Exhibit "A" and incorporated herein by reference.) In order to
induce the Bank to make the aforesaid loan, Mr. Kwak granted the Bank a security interest in,
among other things, his equipment, machinery, motor vehickles, furniture, fixtures, inventory,
accounts and contract rights (collectively, the "Collateral"), as evidenced by a security
agreement (the "Security Agreement") and as protected by certain UCC-l financial statements
(the "UCC-l Financial Statements"). (A true and correct copy of the Security Agreement and the
UCC-l Financial Statements is attached hereto as Exhibit "B" and incorporated herein by
reference. )
Mr. K wak defaulted under the terms ofthe Note by failing to make monthly payments of
principal and interest due under the Note.
The fair market value ofthe Collateral is unknown, but is believed to be less than the
amount due and owing the Bank by the Kwaks under the Note. The Bank believes and therefore
- -
avers that Mr. Kwak has possession of the Collateral. Mr. Kwak has failed and refused, despite
repeated demands by the Bank, to pay the balance due under the Note or to deliver possession of
the Collateral to the Bank.
63804 1.1
2
~,
The balance of the Note as of October 26,2004 was $320,245,20, consisting of principal
in the amount of$311,149.22, accrued interest in the amount of$8,512.74, late charges in the
amount of$583.24, exclusive ofattomeys' fees and costs.
II. STATEMENT OF THE QUESTION INVOLVED
WHETHER THE BANK IS ENTITLED TO POSSESSION OF
THE COLLATERAL WHEN THE BORROWER HAS
DEFAULTED UNDER THE TERMS OF THE NOTE?
III. ARGUMENT
Pa.R.Civ.P. No.1 075.1 sets forth the procedure for the issuance of a prejudgment writ of
seizure after notice and hearing which is designed to be in accordance with the due process
requirements enumerated in Fuentes v. Shevin. 407 U.S. 67,92 S.Ct. 1983,32 L.Ed.2d 556, reh.
den., 409 U.S. 902, 93 S.Ct. 177,34 L.Ed.2d 165 (1972).
The procedure set forth in Pa.R.Civ.P. No. 1075.1 is one of two means for obtaining the
remedy of a prejudgment seizure of property in a replevin action. In appropriate cases, the
plaintiff may cause a writ of seizure to be issued ex parte with notice and a hearing postponed
until after the property is seized. See Pa.R.Civ.P. No. 1075.2.
To invoke the remedy of a prejudgment seizure of property in a replevin action after
notice and. a h~aring, the plaintiff must file a motion for writ of seizure. See Pa.R.Civ.P. No.
1075.1(a). The plaintiff may move for the issuance of a writ of seizure after the complaint has
been filed, whether or not the complaint has been served. Pa.R.Civ.P. No. 1075.1(a).
Upon the filing of the motion for issuance ofa writ of seizure, the court must fix the date
and time for a hearing on the motion. See Pa.R.Civ.P. No. 1075.1 (a), A hearing on a motion for
()3~041.1
3
>
a writ of seizure of the property in a replevin action must be held whether or not the defendant or
other person found in possession of the property appears. See Pa,R.Civ.P. No, I075.1(e); see
also Equico Lessors Inc. v. Ewing. 281 Pa. Super. 147, 152,421 A.2d 1190, 1193 (1980)
(holding that prima facie right established by testimony of plaintiffs employees that property was
deteriorating and in jeopardy).
Pursuant to Pa.R.Civ.P. No. 1075.1(e), the court must initially make a determination at
the hearing whether the notice required by Pa.R.Civ.P. 1075, or a reasonable attempt to give
notice has been made. See 4 Goodrich Amram 2d S 1075 .1 (e): L (1991). If the court is satisfied
that the notice requirements ofPa.R.Civ.P. No. 1075 have been met, the court must determine
from the complaint, affidavits, testimony, admissions, or other evidence which may be received
whether the plaintiff has established the probable validity of his claim and, if so, the court may
order a writ of seizure to be issued upon the filing of a bond as provided by the Pennsylvania
Rules of Civil Procedure. See 4 Goodrich Amram 2d Sl075.1(e):1.
The rule does not mandate any particular form of hearing on the motion for a writ of
seizure. It seems that all that is required is an opportunity for the plaintiff to show that the action
is free of fraud, accident, or mistake, and that there is a probability that he or she may sustain his
right to poss~ssion of the property. See 4 Goodrich Amram 2d S1075.1(e): I (1991).
The hearing is not for the purpose of making a final determination on the merits of the
plaintiffs claimed right to possession of the property, but merely for determining whether the
plaintiff has a probable right to possession. See Hamilton Bank v. Seiaer. 22 D&C 3d 534, 537
(1982).
63804 LI
4
"
Except where the sheriff is authorized by the plaintiff to leave the subject property in a
replevin action with the defendant or any other person found in possession, the Pennsylvania
Rules of Civil Procedure require the sheriff, upon service of the writ of seizure, to take
possession of the subject property. See Pa.R.Civ.P. No. 1075.4(a); see also Mayer v. Chelten
Ave. Bldg. Corp., 321 Pa. 193, 196, 183 A. 773, 774 (1936); General Motors Acceptance Corp.
v. Bums, 25 D&C 2d 293, 296-300 (1961). Additionally, the form of the writ of seizure
prescribed by the Pennsylvania Rules of Civil Procedure specifically directs the sheriff to seize
the subject property. See Pa.R.Civ.P. No. 1354. Furthermore, ilt has been held that even a
defendant who is properly in possession of the subject property by virtue of a valid lien is
obligated to surrender possession to the sheriff. See Mitchell v. McKinnis, 284 Pa. Super. 469,
473,426 A.2d 142, 144 (1981) (noting that the defendant had no right to give a counter-bond and
keep possession since his lien was fully protected by the plaintiffs bond).
The sheriff must take physical possession of the property. The sheriff has the right to
enter the defendants' house for the purpose of searching for tht: goods, provided that in so doing
he does not exceed the limits prescribed by the law. See Kneas v. Fitter, 2 Serg & R 263, 264
(Pa. 1816); Mayer, 321 Pa. at 196, 183 A. at 774. The sheriff has the right to enter a door already
opened and may even be authorized to break open doors and enter by force in order to execute
the writ of seizure. See Commonwealth v. Temple, 38 D&C 2d 120, 127 (1965). However, the
sheriff may use no more force than necessary and must exercise due care. Sce Mayer, 321 Pa. at
196, 183 A, at 774. The burden is upon the plaintiff in a replevin action to establish every
material elemcnt of his case upon which an issue is raised unde:rhis pleadings, Blossom Prods.
63804 Ll
5
:v
Corp. v. National Undclwear Co., 325 Pa. 383,387, 191 A.40, 42 (I937). The plaintiff must
establish his right to possession of the subject property by a preponderance of the evidence. See
Petition of Allstate Ins. Co., 289 Pa. Super. 329, 333,433 A.2cl91, 93 (1981). A claimant who
asserts a lien and a right to possession until the lien is discharged is not required to prove a title
in addition to the right of possession. See Griffin v. Keefer, 30 Dauph. Co. Rep. 315, 317
(1927).
Once the plaintiff establishes his right to possession, the burden of proof shifts to the
defendants to prove his right to retain possession. See Petition of Allstate, 289 Pa. Super. at 333,
433 A.2d at 93; Carroll v. Godding, 155 Pa. Super. 490,492, 38 A.2d 720, 721 (1944); Johnson
v. Staples. 135 Pa. Super. 274, 280, 5 A.2d 433,436 (1939).
IV. CONCLUSION
In light of the foregoing, the plaintiff prays this Court to enter an Order directing the
Prothonotary to issue a writ of seizure to the Sheriff directing the Sheriffto seize the Collateral.
Respectfully submitted,
HOURIGAN, ~~~UINN, P.c.
BY: ~
James T. Shoemaker, Esquire
ill No.: 63871
Counsel for the plaintiff, Mellon Bank, N.A., now
by assignment, Citizens Bank of Pennsylvania
600 Third Avenue
Kingston, PA 18704
(570) 287-3000 Telephone
(570) 287-8005 Facsimile
Dated: November L'~ ,2004
63804Ll
6
,}
It'\ili:G~~gmi~!g~ii:'f!gl~:iill'I'[illiil':li~~'i\\!i!1\lii'!tl:
.-.......... .;.-;.._.;;........ "-:':':':':-:':':'::-.:' ..... .... ...
H_O..
$ 395,000.00
Promise To Pay, FOR VALUE RECEIVEn,ar\d intcnding to be Icgally
bound, Undersigned, as defincd belo\\', promises to pay to:
Mellon Bank, N.A.
("Bank") or its order at
Harrisburg, Pennsylvania
the sum of
Three Hundred Ninety Five Thousand and
00/100
Dollars ($ 395,000.00 ), :with interest on thc
outstanding balance from the date of: this Promissory Note
("Note") at the rate(s) ("Contractual Ratqs)") and in accordance
with the repayment sehedu1e specified bclqw.
Contractual Rate(s); Repayment Schedules. :
o Interest at a rate per annum:which is %
above Bank's Prime Rate, such rate to cb:ange from time to time
as of the effective date of each announcciI change in such Prime
Rate, shall be paid when principal paym,ents are due. Principal
shall be paid in consecutive qKmthly installments of
$ each, commencing bn ,
and continuing thereafter on the i day of each month
with the balance of the indebtedness, if n~t sooner paid, due and
payaNeoo :
j
I
o Interest at a rate per annuni which is %
above the CD Rate, such rate to change trom time to time as of
the effective date of each change in or r~ting of the CD Rate
shall be paid when principal payments ar,~ue. Principal shall ~
paid in Consecutive mOfth1y installments of
$ each, _ I commencing on
, and continu~ thereafter on the
day of each mooth witli the balance of the
indebtedness, if not sooner paid,. 4ue and payable on
I
I
i
o The principal balance he~f, together with all
accrued and unpaid interest, shall be 'paid 00
and interest at a rate per annum whi~ is % abov~
Bank's Prime Rate, such rate to change om time to time as of
the eff~e date of each announced tha ge in such Prime Rate,
shall be paid on the day of eachlmonth commencing on
. I
- I
I
o The principal balance ht' f, together with all
_a<x:ruod and unpaid interest, shall be pai 00 ' .
and interest at a rate per annum which . % above the
CD Rate, such. rate to change from me to time as of the
eff~ date of each change in or resetti~ of the CD Rate, shall
be paid on the day of each tOOth commencing on
!
o In no event shall the rate charged Ion this Note exceed
% per annum.
I
o The principal balance htf' together with all
accrued and unpaid interest, shall be pai on
and interest at the rate of % annum shall be paid
on the . day of each +th commencing on
lXI S;~... ~~erest shalI be calcu.lted at' the rate of
A., tin % per annum. Principal and ~terest shall be paid in
17q consecutive monthly installments of
$ 3,923.65 each, co 00.
.'rUire:-:
07/01/1999 , and continuing thereafter on Ihe 1ST
d:1Y of c.1ch month with thc halancc of the indchtednes.~, if not
S(xl!lCr paid, due and payable on 06/01/2014. During an)'
pcnod that the Contractual Rate(s) i" reduced by 0.25% pcr
annum, as d(~<;cribcd elsewherc in Ihis NoIe, installmcnts of
princft and, interest shall instead be in Ihe amount o[
$ ,864. 70 each. If the reduction in the Contractual
Ratc(s) is no longcr in effect, the amount of installmcnts of
principal and intcrest shall return to and be the same as the amount
of such installments prior to the reduction in the Contractual
Rate(s).
Undersigned shall pay Bank concurrently with the execution and
de.li~ery. hereof, or Undersigned previously has paid Banlc, an
ongmation fee of $ 3 , 950. 00 . to compensate Bank
for its underwriting, origination and administration of the loan
evidenced by this Note. This fee shall be deemed fully earned by
Bank on the date hereof, shall not be refunded, and is in addition
to any other fec~, costs or expenses which may be due and payable
hereunder.
.
Unless Undersigned has authorized Bank to take payments out of
a Mellon Olecldng Account, as set forth below Undersigned will
mail or deliver to Bank the amount billed by Bank each month.
Undersigned \1\~D mail or deliver the payments so that Bank
receives all payments no later than the due date shown on each bill.
o Undersigned authorizes Bank to take all
payments of principal and/or interest and/or other amounts due
under this Not,~ out of Undersigned's Mellon O1ecIdng Account
Number ' , . titled in the name(s) of
. . , on or
after ~e _-;- ~y of each n;iOOth. Undersigned will keep a
suffiCient balance In this account to cover the fun amounts of all
required payments. At, its option, Bank may terminate
Undersigned's ability to use this service. This authorization shall
remain in effect until revoked by Undersigned in writing or until
the loan evidenced by this Note is paid in full or until Bank has
terrnin?ted Undersi~ed's a~ility to use this service, as the case may
be. Pnor to matunty, while this authorization is in effect and
provided that Undersigned keeps a sufficient balance in this
account to eov<:r .the full amounts of all required payments, the
Contractual Ra1le(s) shall be reduced by 0:25% per annum. This
authorization ",ill be effective even though this Note and the
account may be titled in different versions of Undersigned's name.
If the original principal amount of this Note is in excess of
S10,OOO.OO, or ii~ U~dersigned is a corporation, ipterest shall be
calcul~tc:<l on ~~:. basIS of a 360-<fay year and actual days elapsed. If
thc ongmal pnn'::lpal amount of this Note is SlO,OOO.OO, or less, and
Undcrsigned is not a corporation, interest shall be calculated on the
basis of a 365-<1ay year or 366-<1ay year, as the case may be, and
actual days elapsed.
"Prime Rate" shall mean the interest rate per annum announced
from time to time by Bank as its Prime Rate. The Prime Rate may
be greater or kss than other interest rates charged by Bank to
?ther borrowers. and is not sOlely based or dependent upon the
mterest rate which Bank may charge any particular borrower or
class of borrowers. .
If a single certificate o( deposit is held by Bank as cotlateral securily
(or t~e i?debt<:dnc:ss evidenced by this Note, as more fully
descnbed U1 thc Assignment of ~posit Account expressly referring
to this Note! "CD Rate" shall mean: (be interest rate paid by Bank
on such certificate of deposit (the ..C&tjfi~te")' Said CD Rate to be
'~}.-I ':':.' Page 1 of 5 '
,-
.
---r- ,I., .
rcsct by Bank at each renewal of thc Cc(ufi~tc. If more than onc
certificate of dcposit is held by Bank as collateral security for thc
indcbtedness evidenced by this Notc, as marc fully dcscribed in thc
A,>signmcnt(s) of Deposit Account cxpressly rcferring to this Note,
"CD Rate" shall mean the highest of the interest rates paid by Bank
on such certificates of deposit (the "CertifiC<l1es"), said CD Rate to
be rcsct at each renewal of each Certificatc,
Lato Chargo, If any pa)ment (including without limitation any
regularly scheduled payment, balloon payment or final payment) is
not paid within 15 calendar days after it is due, Undersigned will pay
a latc charge of the greater of $25.00, or three percent (3%) of the
unpaid portion of thc scheduled paymcnt due (regardless of whether
thc payment due consists of principal and interest, principal only or
interest only). Such late charge shall be in addition to any increase
made to thc Contractual Rate(s) applicablc to the outstanding
balance hereof as a result of maturity of this Note or othcrwise, as
well as in addition to any other applicable fees, charges and costs.
Default Rate(s); Post-Maturity Rate(s). Upon the occurrence. of
any Event of Default (as defined in this Note), at Bank's option,
interest shaU accrue at a rate equal to two percent (2%) per annum
above the Contractual Rate(s) until the earlier of the date that such
Event of Default has been cured or until and including the date of
maturity hereof.
After maturity, whether by acceleration or otherwise, interest shaII
accrue at a rate equal to two percent (2%) per annum above the
Contractual Rate(s) until all sums due hereunder are paid. Interest
shall continue to accrue after the entry of judgment (by confession or
otherwise) at the Contractual Rate(s) until all sums due hereunder
and/or under the judgment are paid. except that after maturity or, at
Bank's option, upon the occurrence of any Event of Default, interest
shaU accrue at a rate equal to two percent (2%) per annum above
the Contractual Rate(s).
Books and Records; Time of Essence. So Ioi1g as Bank is the
holder hereof, Bank's books and records shall be presumed, except
in the case of manifest error. to accurately evidence at aU times all
amounts outstanding under this Note and the date and amount of
each advance and payment made pursuant hereto.
The prompt and faithful performance of all of Undersigned's
obligations hereunder, including without limitation time of payment,
is of the essence of this Note.
__ Security Interest. Setoff and Assignments. To secure all amounts
at any time owing or payable under this Note and Undersigned's
obligations hereunder, as well as to secure all costs and expenses
incurred by Bank in the collection or enforcement of this Note or the
-protection of any collateral securing this Note (including without
limitation. aU advances made by Bank: for taxes, levies, insurance,
filing fees. and repairs to or maintenance of said collateral),
Undersigned hereby grants to Bank: a security interest in, lien upon,
and right of setoff against, all deposit accounts, credits, securities,
moneys. or other property of Undersigned which may at any time be
in the possession of, delivered to, or owed by Bank, including any
proceeds or returned or unearned premiums of insurance, and the
proceeds of aU the foregoing property. Other property, real or
personal, may secure this Note, as set forth in other documents and
agreements.
Undersigned acknowledges and agrees that Undersigned shall
renew, or cause to be renewed, the Certifacate(s), if any, until the
indebtedness evidenced by this Note has been paid in full.
Undersigned further agrees that Undersigned will execute, or will
cause to be executed, upon demand by Banle any financing
statements or other documents, including, without limitation,
additi<?Ml Assignments of Deposit Aooount, wbich Bank may deem
I1<lCaS3IY or desirable to evidenoc; perfect oc maintain perfection of
the security interests created in the Certificate(s) and any renewals,
replacements and substitutions thereoL
Additional Tcnns and Conditions
1. CownaRIs. Undersigned cxwenants and agrees that until all
indcbtcdoc!iS evidenced hercby has been paid in full, Undersigned
shall: (a) maintain at all times a positive tangible net worth; (b) (I)
have all El:IVironmental Permits neccssary for the conduct of each
of Undcrsi,gned's busines.<;cs and operations, (2) conduct each 01
UndcrsiglKd's businesses and operations in material compliancc
with all <Ipplicable Environmcntal Laws and Environmental
Permits, (3) not pcrmit to exist any event or condition that requires
or is likely to require Undersigned under any Environmental Law
to pay or expend funds by way of fines, judgments, damages,
cleanup, [(:mediation or the like in an aggrcgate amount, the
payment (]{ wbich could reasonably be expected to interferc
substan~, with normal operations of Undersigned or materially
adversely alfect the financial condition of Undersigned, (4) notify
Bank: prompdy upon becoming aware of any pcnding or threatened
proceeding, suit, investigation, allegation or inquiry regarding any
alleged al:ol or condition that, if resolved unfavorably to
Undersigned or any of Undersigned's subsidiaries or affiliates, is
lik:ely to QIl1SC Undersigned or any of its subsidiaries or affiliates
under any :Environmental Law to pay or expend funds by way of
fines, judgments, damages. deaning, remediation or the like, and
(5) provi&~ at Undersigned's cost, upon request by Bank,
certifications, documentation. copies of pleadings and other
information regarding the above, all in form and content
satisfactory to Bank; (c) conduct each of Undersigned's businesses
and operations in material compliance with aU federal, state or local
laws, statute:$, regulations, rules, ordinances, court or administrative
orders or dc:crees, or private agreements or interpretations, now or
hereafter in existence, direct1y or indirectly relating to or affecting
Undersigned's businesses or operations; (d) use the proceeds of the
loan evideuced hereby only for business purpose(s) specified to
Bank at or :prior to the execution hereof; (e) promptly notify Bank
in writing It)f any change in Undersigned's residence or Olief
Executive Office; (f) purchase and maintain policies of insurance
(mcluding lllooc;l insurance) to protect against such risks and
casualties, 2m in such amounts, as sfiall be required by Bank
and/or applicable law, which policies shall (1) be in form and
substance satisfactory to Bank, (2) at Bank's option, designate
Bank as loss payee and/or as additional insured, and/or contain a
lender's loss payable endorsement, and (3) be (or certificates
evidencing lialIlC shall be) deposited with Banle; (g) (1) maintain
and keep pmper records and books of account in conformance with
generally accepted accounting principles applied on a consistent
basis in which full, true and correct entries shall be made of all
Undersigned's dealings and business affairs, (2) provide to Bank at
Undersigned's, cost, upon Bank's request, financial or other
information, documentation or certifications (including without
limitation 2l1Ulual and periodic balance sheets and income
statements, personal financial statements. federal income tax
returns, ilMntory reports (including a description of raw materials,
finished goods, and the aging thereof, as applicable), and accounts
receivable and payable aging reports), all in form and content
satisfactory to Bank, and (3) permit, upon request by Bank, any of
the offioea, employees or reprcscntatives of Bank to visit and
inspect any of Undersigned's properties and locations and to
examine its books and reCords and discuss the affairs, finances and
accounts of Undersigned with representatives thereof, as often as
Banle may I'equest; (h) provide additional collateral at such times
and having :such value as Bank: may request, if Banle shall have
reasonable l:rounds for believing that the value of the collateral
securing thc:: indebtedness evidcnced by this Note has become
insufficient 10 iCCUre said indebtedness; (i) pay, upon demand by
Eanle, (1) aU costs and fees pertaining to the filing of any financing,
cootinuatioo or termination statements. mortgages. satisfaction
picoes, judDnents and any other type of document which Bank:
deems nOCClsaty or desirable to be filed with regard to security
interests wllicb secure the 'indebtedness evidcnced hereby,
regardless of whether such ~rity interests were granted by
Undersignod, and (2) all costs an<fCxre.yses incurred by Bank in
Page 20(5
.> '.~~;. ~
wnnection with any collateral securing this Note (induding without
limitation all advances made by Bank for taxes, levies, insurance,
rcpairs to or maintcnance of said collatcral, appraisal or valuation
of said collateral, and determination of flood hazard), regardless of
whether such collateral is owned by Undersigned; and (j) pay, upon
demand by Bank, all amounts incurred by Bank in connection "..ith
an)' action or proceeding taken or commenced by Bank to cnforce
or collect this Note, including attorney's fees equal to the lesser of
(1) 20% of the outstanding principal balance and intcrcst then duc
hereunder or $500.00, whichever is grcater, or (2) thc maximum
amount permitted by law, plus attorney's costs and all costs of legal
proceedings,
2. Events of Default The occurrence of any of the following shall
constitute an "Event of Default" hercunder: (a) default in payment
or performance of any of the indebtedncss or obligations evidenced
by this Note or any other evidcnce of liability of Undersigned to
Banle; (b) the breach by any Obligor (defined as Undersigned and
each surety or guarantor of any of Undersigned's liabilities to Bank
as well as any person or entity granting Bank a security interest in
property to secure any indebtedness) of any covenant contained in
this Note or in any separate security1 guarantee or suretyship
agreement between Bank and any Obligor, the occurrence of any
default hereunder or under the terms of any such agreement, or
the discovery by Bank of any false or misleading representation
made by any Obligor herein or in any such agreement or in any
other information submitted to Bank by any Obligor; (c) with
respect to any Obligor: (1) death or incapacity of any individual or
general partner, or (2) dissolution of any partnership or
corporation; (d) any assignment for the benefit of creditors by any
Obligor; (e) insolvency of any Obligor; (f) the filing or
commencement of any petition, action, case or proceeding,
voluntary or involuntary, under any state or federal law regarding
bankruptcy, insolvency, reorganization, receivership or dissolution,
including the Bankruptcy Reform Act of 1978, as amended, by or
against any Obligor; (g) default under the terms of any lease of or
mortgage on the premises where real or personal property securing
the indebtedness evidenced by this Note is located; (h) the
garnishment, tax assessment, attachment or taking by
governmental authority or other creditor of any property of any
Obligor which is in Bank's possession or which constitutes security
for any indebtedness evidenced hereby; (i) entry of judgment
against any Obligor in any court of record; (j) the assessment
against any Obligor by the 'Internal Revenue Service or any other
federal, state or local taxing authority of unpaid taxes, or the
issuance of a levy or the entering of a lien in connection therewith;
(Ie) change in control of or transfer of any interest in any Obligor
- - (other than an Obligor who is an individual); (I) a determination by
Banlc, which determination shall be conclusive if made in good
faith, that a material adverse change has occurred in the financial
-or business condition of any Obligor; (m) the maturity of any life
insurance policy held as collateral for the indebtedness evidenced
by this Note by reason of the death of the insured or otherwise; or
(n) default by Undersigned in the payment of any indebtedncss of
Undersigned or in the performance of any of Undersigned's
obligations (other than indebtedncss or obligations evidenced by
this Note or any other evidence of liability of Undersigned to Bank)
and such default shall continue for more than any applicable grace
period.
3. Acceleration; Remedies. Upon the occurrence of any Event of
Default: (a) all amounts due under this Note, induding the unpaid
balance of principal and interest hereof, shall become immediately
due and payable at the option of Bank, without any demand or
notice whatsoever; and (b) Bank may immediately and without
demand exercise any of its rights and remedies granted herein,
under applicable law, or which it may otherwise have, against
Undersigned or otherwise. Notwithstanding any provision to the
contrary contained herein, upon the occurrence of an Event of
Default as described in Section 2(l) hereof., all amounts due undcc
this Note, induding w....)ut limitation the unpaid balance of principal
and interest hereof, shall become immediately due and payable,
without any demand, notice or further action by Bank. whatsoevcr,
and an action therefor shall immcdiatcly accrue.
4, Bank's Rig/Its, Undersigncd hercby authorizes Bank, and Bank
shall have the continuing right, at its sole oplion and discretion, to: (a)
do anything which Undersigned is required but fails to do, and in
particular Bank may, if Undcrsigned fails to do so, obtain and pay an)'
prcmiums payable on any policy of insurance required to be obtaincd
or maintaino:J hereunder; (b) dircct any insurer to make payment of
any insuran.:;e procecds, including any returned or unearncd
prcmiums, directly to Bank, and apply such moneys to any
indebtedncss or other amount evidenced hereby in such order or
fashion as B<llnk may elect; (c) pay the proceeds of the loan evidenced
by this Note 110 any or all of the Undersigned individually or jointly, or
to such other person(s) as any of the Undersigned may direct, except
to the extent otherwise provided in Section 6 hereof; and (d) add any
amounts paid or incurred by Bank under Section l(i), Section 1(j) or
Section 4(a) to the principal amount of the indebtedness evidenced
by this Note.
5. Authorization to Borrow. Undersigned hereby represents, warrants,
certifies and <:ovenants as follows:
(a) If Undeniigned is a corporation, that the person(s) signing below
hold(s) the office(s) indicated below (and continue to hold such
office(s) until Bank has received notice to the eontrary in writing
from Undersigned), and that the Board of Directors of Undersigned
has adopted resolutions providing that: (1) the person(s) executing
and deliverini~ this Note on behalf of Undersigned is/are authorized
(i) to incur indebtedness and obligations on behalf of Undersigned by
borrowing or making other financial arrangements with Bank from
time to tilIl(:, upon terms and conditions as they in their sole
discretion d<:em desirable, (Ii) to make, execute and deliver
promissory Dotes, letter of credit agreements, security agreements,
assignments, mortgages and all other documents required by Bank in
connection wi:th the incurring of indebtedness or obligations, and (ill)
to assign and pledge as collateral secUrity for any such indebtedness
or obligations, now or hereafter existing, any real or personal
property of Undersigned; (2) the actions of anyone or more officers
of Undersigned in borrowing money from Bank heretofore for the
account of Undersigned, in assigning or pledging any of
Undersigned':, property for the payment thereof, or in doing any
other act in connection therewith are hereby ratified, confirmed and
approved; and (3) said resolutions shall have the force of a continuing
agreement with Banlc, and shall be binding upon Undersigned until a
resolution amending them shall have been duly and legally adopted
and Bank furnished a certified copy thereof.
(b) If Undersigned is a partnership, that (1) Undersigned's name
shown below is a trade name of Undersigned's firm used in the
conduct of an unincorporated business owned entirely bY the persons
signing this Note on behalf of said partnership; (2) the partners
executing and delivering this Note are authorized (i) to incur
indebtedncss :and obligations on behalf of Undersigned by borrowing
from or making other financing or credit accommodations with Bank
from time to time, upon such terms and conditions as they in their
sole discretion deem desirable, (ii) to make, execute, and deliver
promissory notes, 1ctter of credit agreements, security agreements,
assignments, mortgages and all other documents required by Bank in
connection wi:lh the incurring of indebtedncss or obligations, and (iii)
to assign an~ pledge as collateral security for any such indebtedncss
or Obligatiolt~ :nOw or hereafter existing, any real or personal
property of UlI1<krsigned; (3) the actions of anyone or more partners
of Undersign<:d in borrowing money from Bank heretofore for the
account of Undersigned, in assigning or pledging any of
Undersigned'~ property for the payment thereof, or in doing any
other act in (X)nncction therewith ace hereby ratified, confirmed, and
appro-.tOO; (4) notwithstanding anY~odi~cation pc tenninatiOO of the
-'. " rage 3 of 5
'~~;:'
power of any of the partners to rcprcscnt said firm, whether by
expiration of the partncrship agreement, by death or retirement
of any partner, or the accession of one or more new partners, or
otherwise, and notwithstanding any othcr notice thereof Bank
may receivc, this authority shall continuc to be binding uJXJn eaeh
of the Undersigned individually and uJXlI1 their legal
representatives, and upon Undersigned and its sucecssors, until
Bank has received notice in writing to the contrary signcd by onc
of the Undersigned or by Undersigned's duly authorized agcnt
(Receipt of such notice will not relieve any partner of any liability
arising from obligations incurred prior to Bank's receipt of such
notice,), and (5) nothing hercin shall be construed to limit thc
rights granted to a partncr by law or by the partnership
agreemcnt, but all rights granted hcrein shall be in addition to
such rights.
6. Definitions; Misceflaneous Provisions. (a) Undersigned waives
(except where requested hereby) notice of action taken by Banle;
and hereby ratifies and confirms whatever Bank: may do. Bank
shaD be entitled to exercise any right notwithstanding any prior
exercise, failure to exercise or delay in exercising any such right.
(b) Bank shall retain the lien of any judgment entered on account
of the indebtedness evidenced hereby. Undersigned warrants that
Undersigned has no defense whatsoever to any action or
proceeding that may be brought to enforce or realize on any such
judgment. (c) If any provision hereof shall for any reason be held
invalid or unenforceable, no other provision shall be affected
thereby, and this Note shall be construed as if the invalid or
unenforceable provision had never been a part of it. The
descriptive headings of this Note are for convenience only and
shan not in any way affect the meaning or construction of any
provision hereof. (d) The rights and privileges of Bank contained
in this Note shall inure to the benefit of its successors and assigns,
and the duties of Undersigned shall bind aU heirs, personal
representatives, successors and assigns. (e) This Note shaD in all
respects be governed by the laws of the state in which this Note is
payable (except to the extent that federal law governs). (f)
Undersigned hereby irrevocably appoints Bank and each holder
hereof as Undersigned's attorney-in-fact to endorse
Undersigned's name to any draft or check: which may be payable
to Undersigned in order to collect the proceeds of any insurance
or any returned or unearned premiums in respect of any policies
of insurance required to be maintained hereunder. Undersigned
hereby acknowledges that this appointment of Bank and each
holder hereof as attorney-in-fact is irrevocable and is coupled
with an interest. (g) Undersigned assigns to Bank all moneys
which may become payable on any policy of insurance required to
be maintained under this Note, including any returned or
unearned premiums. (h) "Environmental Law" means any
_ federal, state or local environmental law, statute, regulation, rule,
ordinance, court or administrative order or decree, or private
agreement or interpretation, now or hereafter in existence,
.relating to the manufacture, distribution, labeling, use, handling,
coltection, storage, treatment, disposal or otherwise of Hazardous
Substances, or in any way relating to pollution or protection of
the environment or public health. (i) "Environmental Permit"
means any federal, state or local permit, liccnse or authorization
issued under or in connection with any Environmental Law. (j)
"Hazardous Substances" means pc:tnjcum and petroleum
products, radioactive materials. ~ radon, lead
containing matcrials, sewage or any malaials or substances
defined as or included in the dcfinition of "hazardous wastes,"
"hazardous substances,. "hazardous materials: "toxic
substances," "ha7.ardous air JXlllutants," "toxic pollutants,"
"pollution,. or tcrms of similar meaning, as those tcrms are
used in any Environmental Law. (Ie) "Old Executive Office.
means the place from which the main part of the business
operations of an entity is managed. (I) .Undersigned" refers
individually and collectively to all makers of this Note,
including, in the case of any partnership, all general partners of
such partnership individually and ooIIcctM:Iy, whether or not
such partners sign below. Undersigned sball each be jointly and
severally bound by the terms hereof, and, with respect to any
partnership executing this Note, each ~ partner shall be
bound hereby both in such general partner's individual and
partnership capacities.
7. Direction Ita Pay Proceeds.Undersigned hereby authorizes and
directs Bank: to pay the proceeds of this Note by: . . ,
.:tl' ',-
ti crediting Aooount Number ()ti)-i.{;"l1 ~1 if tff, (y J; 2.8, .
~in~M~~ / /
511N6}/D ~orJ 1M/} K~frf'-
in the amoullt 0[$ J ../
I 'f1 5 q 00 ' Gi./7hnCj m t//Cfl(
''{7Jpaying rnbmn :U(p/, 2., 1D/-fj7:J-/"2-&</J"
1" A l.Jr. ~3J ,3(;)5.3 if ,e; ~.z-q II
the amount t)f$ .
Rpaying f)ltJif/ G f} Li q /;/19 if. ~ tf
the amount ofS
8. Affidavit of Business Loan.(1bis Affidavit is not applicable if
Undersigned is a corporation.) Undersigned, being duly
authorized, depose(s) and say(s) under penalty of perjury that
Undersigned: . .
(a) WAre engaged in business aslXI Owner(s), 0 General
Partner(s) of: (name and nature of business)
YOUNG' S FOOD MARKET AND .
SAY-F~ SUPERMARKET if, 1"-
FOOD MARKET
(b) Hereby make(s) application to Bank for a loan, the
proceeds of which win be utilized for the purpose(s) of
REFINANCE MELLON DEBT. OTHER DEBT
CONSOLIDATION & EQUIPMENT & INVOICE
PURCHASE
(c) Exercise(l;) actual control over the managerial decisions of
~ business.
(Remainder of page intentionally lelt blank)
',.:,~'"
,~.'
Page4of5
.- -..
" "'V. I
:.' "
9. Confession of Judgment. UNDERSIGNED HEREBY
EMPOWERS TIm PROTI-IONOTARY OR ANY
ATfORNEY OF ANY COURT OF RECORD TO APPEAR
fOR UNDERSIGNED AND TO CONfESS JUDGMENT
AS OFIl2N AS NEcr',SSARY AGAINST UNDERSIGNED
IN FAVOR OF 111E HOLDER HEREOF, REGARDLESS
OF WHETHER ANY EVENT OF DEFAULT HAS
OCCURRED, AT ANY TIME AND AS OF ANY TERM,
FOR TIlE OUTSTANDING IlRlNCIPAL BALANCE
I IEREOf PLUS INTEREST DUE UNDER 11 IE TERMS
HEREOF AND ALL Oll-IER AMOUNTS DUE
HEREUNDER, TOGETIIER WITl-I rosrs OF LEGAL
PROCEEDINGS AND AN ATTORNEY'S COMMISSION
EQUAL TO TIlE LESSER OF (A) 20% OF TIlE
OlffSTANDlNG PRINCIPAL BALANCE AND
IN'IB~EST THEN DUE HEREUNDER OR $50000,
WlllCHEVER IS GREATER, OR (U) 11IE MAXIMUM
AMOUNT PERMrrrED BY LAW, wmf RELEA"iE OF
ALL ERRORS. UNDERSIGNED WAIVES ALL LAWS
EXEMPllNG REAL OR PERSONAL PROPERTY
FROM EXECUTION.
By signing this Note, Undersigned agrees to all terms of the Note and swears, under penalty of perjury (as set forth in
18 Pa.C.S. ~904, if governed by Pennsylvania law), to the Affidavit or Business Loan (if completed) set forth In
Section 8 of this Note.
Il~~l~'II~!gDlltil!I!lllllll!I~I!I~IIIIIIIIII~II~I~~'l1~~,:~I:!~II~I~lll~I\~~I~I~j\II~I\\!l~llljl~I~,\I[[I[!jlj\I!![I!ll~!!j\!~!~[\I:I~jl!I~~~I\[~I~~~!l!\lll~jl~1:[jll!\!'j~lj!j!~ll,lll!j!.!!!~~ll:!j!j:~l\!ll~,:j:~__:!;j!,[!j'~,I!~!:!\!:ll!~I\:~!~ll\III!II~ljlljl!I!llljljl:!lljllljl::!I!llljl~ljljl[~jlllll~j~llll!I~~jlll!l\Ij!\I!!!jll~~!I\I~~jl~lllllljl~
Witness the due execution hereof under seaL
x
Witness:
:itnes~~
--
Mellon Bank, N.A
Mellon Bank: (DE) National Association
CL-4S0 Rcv.(IW16) LC. 9196lD 9196
OIlS r 166~.3823 1 d4543(OI)
ilS2799.160S
.....-....-.-...-..........---...................-......-..,.-.......,.....,.......-..-..-.-.-................-.'.
. .........................---............--...........
..................-...............................-......................-.._....-.....................
. ..............................,...............
.:.:.;.:.:.;::;:;:::::::::::;::;;:::::;:::::;::;;;;:::::::::::;::::::=:::::::::;;:;.:.:.;.:.:.:.:.':
...,............................,..........
::::?:::;;;:::::::::~::::;::::::::::::::::::::~::::::::::::::::::~::::::::::::::::::::
..-.............-.................-...........................-..........................
~~:~l' .
x/.- I ,:Seal)
, .
D/B~~.U 's FOOD MARKET AND .., _ __
sM 'UPE-RMA-RKBT 5:'k/ -Fe.' "2-d 5:,-'/ '?~(j'7,.i '.! 1(,<:; /
672 B ~:ERVILLE ROAD )'1/ Cl/
NEWVILLE:, PA 17241 I'- I K-
Individu.a1:. . /_
x_~lli::(AK lJv-rL {.c(~rL (Seal)
~ERVILLE ROAD
NEWVILLE, PA 17241
".4~;~~
PageS 0(5
"'\" '
For value received, and intending to be legally bound, in
consideration of a loan or other credit accommodation in the
amount of
Three Hundred Ninetv Five Thousand and
00/100
Dollars ($ 395,000.00 ) made by
Mellon Bank. N.A.
~Bank"~to
~~~s =v~r~
SAY- SUPERMARKET v
("Borrower(s)"), said obligation evidenced by a
PROMISSORY NOTE
dated _1,--,;;..fi - '1 'j . (the "Note")
Undersigned, intending to be legally bound, hereby agrees as
follows:
1. Security Interest Undersigned hereby grants to Bank a security
interest in the following property now owned or hereafter acquired
by Undersigned:
(Certain terms used herein are defined in Section 13 below.)
IX! ~ ~ /(a) aU equipment, wherever located, including
oi3 ry, m tor vehicles, furniture and fixtures;
IX! ~~ )lJ1i11 iovcntory (whether held for sale or lease or to
be . Cd under contracts of service), raw materials, work: in
process, and materials used or consumed in the conduct of
Undersigned's business, and all books, records, invoices or other
documents which describe or evidence the same;
IXI cP y~u accounts, contract rights, general intangibles,
~ chases in action, instruments, documents (including
all documents of title and warehouse receipts) and all rights to the
payment of money, however evidenced or arising;
D (d) all securities; all cash, stock or other dividends or
distributions paid upon or made in respect of such securities in any
form; all securities received in addition to or in exchange for such
securities; and all subscription rights incident to such securities;
D-
(e) all farm products; and
D (f) all property or rights described below under the
caption "Description of Collateral."
Description of Collateral (Give a sufficiently detailed description
to identify each item).
In addition to the foregoing, Undersigned: (1) grants to Bank a
security interest in all accessions, parts, accessories, attachments and
appurtenances in any way used with, attached or related to, or
installed in, or intended to be so used, attached, related to or installed
in, any equipment or inventory constituting "Collateral" hereunder;
(2) grants to Bank a security interest in all substitutions for, renewals
of, improvements, replacements and additions to, and the products
and proceeds (cash and non-cash) of all of the foregoing property
and any insurance policies relating thereto; (3) grants to Bank a
security interest. in, lien upon, and right of setoff against, all deposit
accounts, credits, securities, moneys or other property of
Undersigned which may at any time be in the possession of, delivered
to or owed by Bank, including any proceeds or returned or unearned
premiums of insurance, and the proceeds (cash and non-cash) of all
the foregoing property; and (4) assigns to Bank all moneys which may
become payable: on any policy of insurance required to be maintained
under this A;greement, including any returned or unearned
premiums.
All such propeClty subject to Bank's security interests described in this
Section 1 is referred to herein collectively as the "Collateral." With
respect to Section 4 hereunder, the term "Collateral" shall not include
the property dCli:cribed in Subsection (3) of this Section 1.
All security interests in Collateral shall be deemed to arise and be
perfected under and governed by the Uniform Commercial Code,
except to the e1l1ent that such law does not apply to certain types of
transactions or Collateral, in which case applicable law shall govern.
2. Obligations secured. The Collateral shall secure the following
obligations ("Obligation(s)"): (a) all amounts at any time owing or
payable under the Note, and any other indebtedness, liability or
obligation of Borrower(s) or of Undersigned to Bank, now existing or
Page 1 of 4
,In addition to the rights given to Bank in this Agreement, Bank
shall have all the rights and remedies of a secured party under any
applicable law, including without limitation, the Uniform
Commercial Code.
8. Additional Representations. In addition to the representations
and warranties set forth elsewhere in this Agreement, Undersigned
hereby mak:es the following representations and warranties which
shall be true and correct on the date of this Agreement and shaH
continue to be true and correct at the time of any borrowing under
any line of credit with Bank and until the Obligations secured by
this Agreement shall have been paid in full: (a) each account: (1)
represents an amount actually owing to Undersigned by the
account debtor (less discounts aHowed for prompt payment); (2) is
valid and enforceable according to its terms without further
performance of any kind; (3) is not evidenced by any instrument or
chattel paper unless the original of such instrument or chattel
paper has been deposited with Bank:; and (4) is not evidenced by
any judgment unless such judgment has been assigned of record to
Baolc; and (b) the locations of aU of Undersigned's places of
business are as stated below, and the inventory and records of the
accounts are kept at the places indicated below.
9. Additional Covenants. In addition to the covenants set forth
elsewhere in this Agreement, Undersigned covenants and agrees
that until the Obligations secured by this Agreement have been
paid in full Undersigned shall: (a) immediately notify Bank in
writing in the event that any of the foHowing occurs: (1) any
account is o{ becomes entitled or eligible for discount for prompt
payment; (2) any account debtor has or may have any defense to
payment of, or right of setoff, counterclaim, or recoupment against
any account; (3) any account represents an amount which is
disputed by the aCcount debtor or the payment of which is in any
way contingent or conditional; or (4) the desirability, usefulness, or
marketability of any of the inventory has been in any way reduced
or impaired by reason of physical deterioration, technical
obsolescence, or otherwise; (b) keep accurate and complete books
and records in accordance with generally accepted accounting
principles and, at Undersigned's expense, promptly furnish Bank
such information and documents relating to the Collateral at such
times and in such form and detail as Bank may request, including
without limitation: (1) copies of invoices or other evidence of
Undersigned's accounts and schedules showing the aging,
identification, reconciliation, and collection thereof; (2) evidence of
shipment and receipt of goods and the performance of services or
obligations covered by accounts; and (3) reports as to
Undersigned's inventory and purchases, sales, damage, or loss
thereof; all of the foregoing to be certified by authorized officers or
other employees of Undersigned; (c) not change any location listed
below regarding places of business, inventory and records of
accounts without Bank's prior written consent; (d) at
Undersigned's expense, diligently coHect the accounts on behalf of
Bank until such time as Bank exercises its right to direetly collect
the accounts, and upon notice from Bank, deliver all proceeds of
accounts to Bank: forthwith upon receipt, in the original form in
which received; (e) immediately upon Bank's request, open a cash
collateral account ("Cash Collateral account") at Bank and deposit
therein all cash proceeds of collections on the accounts; (f)
immediately upon Bank's request, give the Bank assignments, in
form acceptable to Bank, of specific accounts or groups of accounts
and specific general intangibles, and immediately repay the amount
loaned against any account so assigned to the Bank if the contract
with the account debtor is breached, cancelled or terminated; (g)
immediately upon Bank's request, furnish Bank with all
information received by Undersigned regarding the financial
condition of any account debtor, except to the extent prohibited by
law; (h) immediately deliver to Bank all instruments, documents or
chattel paper representing any of the Collateral and immediately
assign of record to Bank any judgment representing any account
constituting O)lIateral; and (i) immediately upon Bank's request,
mark: its records evidencing its accounts in a manner satisfactory to
Bank so as to show which accounts have been assigned to Bank.
10. Additional Rights of Bank. In addition to the Bank:'s rights set
forth elsewhere: in this Agreement, Undersigned hereby authorizes
Bank, and Banl[ shall have the continuing rights at any time, whether
or not any default has occurred under this Agreement, and at its sole
option and discretion, without notice, to: (a) tak:e over and collect any
or all of the ac:counts and to take any other action pursuant to its
power of attorney granted herein; (b) exercise absolute and exclusive
dominion and (ootral over all funds deposited in the Cash Collateral
account; apply any funds therein against any Obligations; and charge
to any deposit lIccount or Undersigned any item or payment credited
to the Cash Collateral account which is subsequently dishonored; (c)
at any reasonable time, through its authorized agents and employees,
inspect, audit, and verify the accounts and the inventory, review
Undersigned's lbooks and records, and copy or make excerpts from
any document; and (d) verify accounts with debtors in the name of
Undersigned, Bank, or Bank:'s designee.
1 L MlSceUaneous Provisions. (a) Undersigned waives protest of all
commercial paper at any time held by Bank: on which Undersigned is
in any way liable, notice of nonpayment at maturity of any and all
accounts, and (c~cept where requested hereby) notice of action taken
by Bank; and hereby ratifies and confirms whatever Bank may do.
The rights and remedies of Bank hereunder are cumulative. Bank
shall be entitled to exercise any right notwithstanding any prior
exercise, failure to exercise or delay in exercising any such right. (b) If
any provision hereof shall for any reason be held invalid or
unenforceable, 1110 other provision shall be affected thereby, and this
Agreement shaD be construed as if the invalid or unenforceable
provision had nc:ver been a part of it. The descriptive headings of this
Agreement are for convenience only and shall not in any way affect
the meaning or construction of any provision hereof. (c) The rights
and privileges of Bank contained in this Agreement shall inure to the
benefit of its successors and assigns, and the duties of Undersigned
shall bind all h(:irs, personal representatives, successors and assigns.
(d) No modific:ation of this Agreement, nor any waiver of any
provision hereolF, shall be effective or enforceable unless set forth in
writing and signed by an officer of Bank. (e) This Agreement shall in
all respects be governed by the laws of the state where the
Obligations are payable as reflected in the document(s) evidencing
such Obligation:~ (except to the extent that federal law governs), and
all references to the Uniform Commercial Code shall be deemed to
refer to the Uniiform Commercial Code as enacted in such state. (f)
Undersigned h4:reby irrevocably appoints Bank and each holder
hereof as Undersigned's attorney-in-fact to: (1) endorse
Undersigned's name to any draft or cheek which may be payable to
Undersigned in order to collect the proceeds of any. insurance or any
returned or unearned premiums in respect of any policies of
insurance requiired to be maintained hereunder; and (2) tak:e any
action Bank deems necessary to perfect or maintain perfection of any
security interest granted to Bank: herein, including executing any
document on Undersigned's behalf. (g) Undersigned shall bear the
risk of loss of, damage to, or destruction of the Collateral, and
Undersigned hereby releases Bank from all claims for loss or damage
to the Collateral caused by any act or omission on the part of Bank,
except for willful misconduct. (h) The prorhpt and faithful
performance of all of Undersigned's Obligations hereunder,
including without limitation, time of payment, is of the essence of this
Agreemen~. (i) Copies or reproductions of this document or of any
financing statem~nt IDay be filed as a financing statement.
12 Additionall'ower of Attorney. In addition to the powers of
attorney grant(:d to Bank by Undersigned elsewhere in this
Agreement, Undersigned hereby appoints Bank and its officers,
Page 3 of 4
10-20-'04 11:22 FRQM-
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Oct-20-2004 09:32am
l"ARTIES
IXb~r n:lllle (last name [il).llf wdivlduul) and m311lnt add=:
_' '1(':JAl: I SAIi~ /10
RD 3 nox ~ " '] <-
,NEWVILLE, P^ 17241
Dcbl.a<' =e (Ia&l. nam" fl~t if indi,.,;(\ual) and mailing add~:
YDUlIG'S FOOO MARKET
1lD 3 llOl( :!ttr t.>,"\--
NEWILL!:, PA 17241
Debtor IUIII1<' (hat n2me fUlt If individual) and mlliling addlOlK:
kllft<ll'utt(ta.) ltI.D1C(a) (Wt D4me fmt i( lndMdual) :md
~4re.u tonel:ul'ity mu:rcat ml'otmatlon:
Helton Bank, ..~.
wuafnGoe lIa~1ng \.om Center
~ Kellon ~ CenterI Rm. 151-1~70
Pltt$bJrllh. ". 1S2SS-0uOl
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~ ~ tor I<<IIdty Inten:.( lnt.o=tion-
Spcdd'l}puaU'IU'UCll (cb<xXlCappliQb1c):
o 'Ibe lena "Pcbkx":lIId "Sccurall'.nt' meAlI ~
a4 "[.cuor:l'CllpoaM:It.
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Sli:CURE:P PARTYSICNA-TUIU:(S)
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$ecUftcf Paz(1 S~I1U<:(.)
(mqWted OI\ty ICbo:>;(ca) " c:bOc:Ud above):
KELLON B
srAmlARD POlQ.( -fORM!'A 00;.1 (Rd.3,93)
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:-::, :~O~, ~l~i:Fi)r: DEEDS
::;".1:;;; :lLAllo COUNTY - f'A
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'9" JUH 26 APlIO 51
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RECEIVABlES, tJ1'IER JJ.lIXJIITS OII'ING To DEBTOR, fiXTURES.
fURIIITUIl1: .AID fWIPMM, ALL ~~~UCTS' AIIll,CASH IJlO
NOJI-C4$M PROCEBlS (tNaJ.DUlG IllSURANCE. POLICIES IJlO
PRCCEEO$) ()l: Tl\E rotlEQQtl4C4 AJltl All. 'GUARAIlTtES, C:V.ll<S,
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Detail report item #1 printed by: DOTTIE HOF8MAN on 2/22/01
________________________________J_____________________-------__________________
--------------------------------,----------------------------------------------
PENNSYLVANIA UCC DETAIL REPORT
DATA COVERAGE THROUGH
FE G O~) I 2 CJ 0 ]
SEl\I<Cll COMPLETE!)
FE n ;; 2 I ;; () () 1
o l3 : ~) 9 AM (CS T )
~~~~~~~~~~~==~=======~======================================================~~.=
Filing Location:
SECRETARY OF STATE OF PENNSYLVANIA
308 NORTH OfFICE BUILDING
HARRISBURG, PA. 17105-8722
Original Filing Number:
Original Filing Date:
26811373
06/23/1997
Collateral:
FURNITURE AND FIXTURES
HEREAFTER ACQUIRED PROPERTY
INVENTORY
MACHINERY AND EQUIPMENT
OTHER
Debtor:
KWAK, SANG HO
RD 3 BOX 672
NEWVILLE, PA. 17241-0000
Additional Debtor:
YOUNG'S FOOD MARKET
RD 3 BOX 672
NEWVILLE, PA. 17241-0000
Secured Party:
MELLON BANK NA
BUSINESS BANKING LOAN CENTER
PGH, PA. 15258-0001
THE INFORMATION IN THIS REPORT IS PROVIDED IN CONFIDENCE SOLELY FOR YOUR USE IN
EVALUATING ACTUAL OR CONTEMPLATED BUSINESS TRANS;~CTIONS INVOLVING THE BUSINESS
ENTITY TO WHICH SUCH INFORMATION RELATES. NEITHER EXPERIAN NOR EXPERIAN'S
SOURCES WARRANT THE ACCURACY, COMPLETENESS, CURRENTNESS, MERCHANTABILITY OR
FITNESS FOR A PARTICULAR PURPOSE OF SUCH INFORMATION. IN NO EVENT WILL EXPERIAN
BE LIABLE FOR INDIRECT, INCIDENTAL, CONSEQUENTIAL OR SPECIAL DAMAGES RESULTING
FROM THE USE OF SUCH INFORMATION.
THE FOLLOWING DATA IS FOR INFORMATION PURPOSES ONLY AND IS NOT AN OFFICIAL
RECORD. CERTIFIED COPIES MAY BE OBTAINED FROM THE: PENNSYLVANIA DEPARTMENT OF
STATE.
).,'
12/28/2004 08:17
71 72~0~5.I3
PROTHONOT AI~Y C LONG
PAGE 01/02
---
.~
\
NO\l 3 {} 2.004 f'
MELLON BANK, N.A.~ now by assignment
CITIZENS BANK OF PENNSYL V ANlA
8 West Market St.
Wilkes-Barre, PA 18701,
Plaintiff
, ...... "..
nrT~E COURT OF COMMON PLEAS
OF CUMBERLAND COUNTY
VS.
CML ACTION -- LAW
REPLEVIN
SANG HO KW AK and YON HW A KW AK
672 Bloserville Road
Newville, PA 17241,
Defendants
NO.C'Y - ~r;sP
Go~LT~
ORDER
AND NOW, this/9~day of ~2004~ 3tH: ~()
o'clockA-.m., it is
hereby ordered that there will be a hearing on the Plaintiff's motion for writ of seizure, on the
'.3nJ dayof~L1FfIL'I ,20QJat 3:~ o'c1ock,_em.,attheCumberland
County Courthouse, One Courthouse Square, Carlisle, Pen-osylvarua. Court Ro~m 5' .
J.
sc: Sang Ho Kwak
Yon Hwa Kwak
James T. Shoemaker, Esquire
638046,1
. , -
HOURIGAN, KLUGER & QUINN
A PROFESSIONAL CORPORATION
BY: James T. Shoemaker, Esquire
IDENTIFICATION NO, 63871
A ITORNEY FOR Plaintiff
600 Third Avenue
Kingston, P A 18704
(570) 287-3000
MELLON BANK, N.A., now by assignment
CITIZENS BANK OF PENNSYLVANIA
8 West Market St.
Wilkes-Barre, PA 18701,
Plaintiff
IN THE COURT OF COMMON PLEAS
OF CillvfBERLAND COUNTY
vs.
CIVIL ACTION -- LAW
CONFESSION OF JUDGMENT
SANG HO KW AK and YON HW A KW AK
2208 Chatham Way
Harrisburg, PA 17110,
Defendants
NO. 04 - 5958 CIVIL TERM
CERTIFICATE OF SERV][CE
I, James T. Shoemaker, Esquire, hereby certify that I am serving a true and correct copy of the
foregoing notice of hearing upon the defendants, by forwarding said document, via overnight courier,
addressed as follows:
Sang Ho Kwak, individually and d/b/a
Young's Food Market
2208 Chatham Way
Harrisburg, P A 17110
Respectfully submitted,
600 Third Avenue
Kingston, PA 18704
(570) 287-3000 Telephone
(570) 287-8005 Facsimile
Dated: December 28, 2004
HOURIGAN, KLUGER & QUINN, P.C.
BY\~
Jamest. S oemaker, Esquire
ill No.: 63871
Counsel for the plaintiff, Tammac Corporation
644837.1
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HOURIGAN, KLUGER & QUINN
A PROFESSIONAL CORPORATION
BY: James T. Shoemaker, Esquire
IDENTIFICATION NO. 63871
ATTORNEY FOR Plaintiff
600 Third Avenue
Kingston, P A 18704
(570) 287-3000
MELLON BANK, N.A., now by assignment
CITIZENS BANK OF PENNSYLVANIA
8 West Market St.
Wilkes-Barre, PA 18701,
Plaintiff
IN THE COURT OF COMMON PLEAS
OF CUlv1BERLAND COUNTY
vs.
CIVIL ACTION -- LAW
CONFESSION OF JUDGMENT
SANG HO KW AK and YON HW A KW AK
2208 Chatham Way
Harrisburg, PA 17110,
Defendants
NO. 04 - 5958 CIVIL TERM
PRAECIPE TO DISCONTINUE WITHOUT PREJUDICE
To the Clerk of Courts:
Please discontinue the above-captioned action without prejudice.
Thank you.
600 Third Avenue
Kingston, PA 18704
Telephone (570) 287-3000
FacsImile (570) 287-8005
Dated: January 3,2005
Respectfully Submitted,
HOURIGAN, Ia..UGER & QUINN, P.C.
~7~
BY:~
James T. Shoem er, EsqUIre
LD. No. 63871
Counsel for the Plaintiff, Mellon Bank, N.A.
645386-1
"
HOURIGAN, KLUGER & QUINN
A PROFESSIONAL CORPORA nON
BY: James T. Shoemaker, Esquire
IDENTIFICATION NO, 63871
A TIORNEY FOR Plaintiff
600 Third Avenue
Kingston, P A 18704
(570) 287-3000
MELLON BANK, N.A., now by assignment
CITIZENS BANK OF PENNSYLVANIA
8 West Market St.
Wilkes-Barre, PA 18701,
Plaintiff
IN THE COURT OF COMMON PLEAS
OF CillvlBERLAND COUNTY
vs.
CNIL ACTION -- LAW
CONFESSION OF JUDGMENT
SANG HO KWAK and YON HWA KWAK
2208 Chatham Way
Harrisburg, PA 17110,
Defendants
NO. 04 - 5958 CNIL TERM
CERTIFICATE OF SERVICE
I, James T. Shoemaker, Esquire, hereby certify that I am serving a true and correct copy of the
praecipe to discontinue upon the defendants, by fOlwarding said document by U.S. first class mail,
postage prepaid, addressed as follows:
Sang Ho Kwak, individually and d/b/a
Young's Food Market
2208 Chatham Way
Harrisburg, P A 17110
Yon Hwa Kwak
2208 Chatham Way
Harrisburg, P A 17110
Respectfully submitted,
600 Third Avenue
Kingston, P A 18704
(570) 287-3000 Telephone
(570) 287-8005 Facsimile
Dated: January 3, 2005
HOURIGAN, KLUGER & QUINN, P.C.
BY~~
James T. Shoemaker, EsqUIre
ID No.: 63871
Counsel for th{~ plaintiff, Mellon Bank, N.A.
645389,}
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SHERIFF'S RETURN - OUT OF COUNTY
CASE NO: 2004-05958 P
COMMONWEALTH OF PENNSYLVANIA:
COUNTY OF CUMBERLAND
MELLON BANK NA
VS
KWAK SANG HO ET AL
R. Thomas Kline , Sheriff or Deputy Sheriff who being
duly sworn according to law, says, that he made a diligent search and
and inquiry for the within named DEFENDANT
, to wit:
KWAK SANG HO
but was unable to locate Him In his bailiwick. He therefore
deputized the sheriff of DAUPHIN County, Pennsylvania, to
serve the within ORDER, MOTN-WRIT SEIZ, CO
On January
7th , 2005 , this office was in receipt of the
attached return from DAUPHIN
Sheriff's Costs:
Docketing
Out of County
Surcharge
Dep Dauphin County
Mileage
So answers :--
:~,--~
18.00
9.00
10.00
36.00
7.40
80.40
01/07/2005
HOURIGAN KLUGER
,s::;','_;~~~__/ -- - ---
R. Thomas Kline---
Sheriff of Cumberland
County
QUINN
Sworn and subscribed to before me
(\
this
J(
day of
j~
'0P1
SHERIFF'S RETURN - OUT OF COUNTY
CASE NO: 2004-05958 P
COMMONWEALTH OF PENNSYLVANIA:
COUNTY OF CUMBERLAND
MELLON BANK NA
VS
KWAK SANG HO ET AL
R. Thomas Kline
, Sheriff or Deputy Sheriff who being
duly sworn according to law, says, that he made a diligent search and
and inquiry for the within named DEFENDANT
, to wit:
KWAK YON HWA
but was unable to locate Her
In his bailiwick. He therefore
deputized the sheriff of DAUPHIN
County, Pennsylvania, to
serve the within ORDER, MOT-WRIT SEIZ, COM
On January
7th , 2005 , this office was in receipt of the
attached return from DAUPHIN
Sheriff's Costs:
Docketing
Out of County
Surcharge
6.00
.00
10.00
.00
.00
16.00
01/07/2005
HOURIGAN KLUGER
So answer~.-:<:,_-?
....--..
---'
...//.
'.-,d..,. ~,/ .----; c::?,P
R. Th~mas Kline <-/ ..
Sheriff of Cumberland County
QUINN
Sworn and subscribed to before me
this
day of
~o
In The Court of Common Pleas Qf Cumberland County, Pennsylvania
Mellon Bank NA
VS.
Sang Ho Kwak et al
Sang Bo Kwak
SERVE:
No.
04-5958 civil
T-Jow,
December 22, 2004 , I, SHERIFF OF CUMBERLi\.ND COUNTY, P A, do
hereby deputize the Sheriff of
Dauphin
County to execute this Writ, this
deputation being made at the request and risk of the Plaintiff.
~./? ...:?' . <'~~'
~......-. ~~ J>' ~~,......
0> .r....~?"""""~ "'/''' _.(f;;~~
I' "oj'
Sheriff of Cum berland County, P A
Affidavit of Service
Now,
,20_, at
0' clock
M. served the
within
upon
at
by handing to
a
copy of the original
and made mown to
the contents thereof.
So answers,
Sheriff of
County, PA
Sv\'om and subscribed before
me this _ day of , 20
COSTS
SERVICE
MILEAGE
-,-\FFIDA VIT
$
$
In The Court of Common Pleas of Cumberland County, Pennsylvania
Mellon Bank NA
VS.
Sang Ho Kwak et al
Yqn Hwa Kwak
SERVE:
No.
04-5958 civil
Now,
Decanber 22, 2004 , I, SHERIFF OF CUMBERLAND COUNTY, P A, do
hereby deputize the Sheriff of
Dauphin
County to execute this Writ, this
deputation being made at the request and risk of the Plaintiff.
~~" <~ ~~'
;r ';'?~""ett.<. 4if' ~~-f"
~ ? ~
Sheriff of Cumberland County, P A
Affidavit of Service
Now,
,20_, at
0' clock
M. served the
within
upon
at
by handing to
a
copy of the original
and made known to
the contents thereof.
So answers,
Sheriff of
County, PA
Sworn and subscribed before
me this _ day of , 20
COSTS
SERVICE
MILEAGE
AFFIDA V1T
$
$
@Hite of tlp~ ~4er-iff
William T. Tully
So Ii citor
J. Daniel Basile
Chief Deputy
Mary Jane Snyder
Real Estate Deputy
Michael W. Rinehart
Assistant Chief Deputy
Dauphin County
Harrisburg, Pennsylvania 17101
ph: (7] 7) 255-2660 fax: (717) 255-2889
Jack Lotwick
Sheriff
Commonwealth of Pennsylvania
MELLON BANK NA
vs
County of Dauphin
KWAK SANG HO
Sheriff's Return
No. 7210-T - -2004
OTHER COUNTY NO. 04 5958
AND NOW:December 30, 2004 at 8:13AM served the within
ORDER,MOTION-WRIT OF SEIZURE,NOT&COMPLT upon
KWAK SANG HO by personally handing
to DEFENDANT
1 true attested copy(ies)
of the original ORDER,MOTION-WRIT OF SEIZURE,NOT&COMPLT and making known
to him/her the contents thereof at 2208 CHATHAM WAY
HARRISBURG, PA 17110-0000
Sworn and subscribed to
So Answers,
JK~
before me this 3RD day of JANUARY, 2005
,~
Sheriff of Dauphin County, Pa.
/"C/ .1 1/f;J
C:::;;'?>.~;~':~/S:'_I (--d-v..1L-
I ieputly Sheriff
By
NOTARIAL SEAL
MARY JANE SNYDER, Notary Public
Highspire, Dauphin County
My Commission Expires Sept. 1, 2006
Sheriff's Costs:$36.00 PD 12/28/2004
RCPT NO 202588
KC
@ffitt of tqr ~1rrriff
William T. Tully
Solicitor
J. Daniel Basile
Chief Deputy
Mary Jane Snyder
Real Estate Deputy
Michael W. Rinehart
Assistant Chief Deputy
Dauphin County
Harrisburg, Pennsylvania 17101
ph: (717) 255-2660 fax: (717) 255-2889
Jack Lotwick
Sheriff
Commonwealth of Pennsylvania
MELLON BANK NA
vs
County of Dauphin
KWAK SANG HO
Sheriff's Return
No. 7210-T - -2004
OTHER COUNTY NO. 04 5958
I, Jack Lotwick, Sheriff of the County of Dauphin, State of
Pennsylvania, do hereby certify and return, that I made diligent
search and inquiry for KWAK YON HWA
the DEFENDANT named in the within ORDER, MOTION-WRIT OF SEIZURE,NOT&COMPLT
and that I am unable to find him/her in the County of Dauphin, and
therefore return same NOT FOUND, January 3, 2005
PER SANG HO KWAK, DEFENDANT IS DECEASED 5/27/2005
Sworn and subscribed to
So Answers,
JK~
before me this 3RD day of JANUARY, 2005
Sheriff of Dauphin County, Pa.
~
By
NOTARIAL SEAL
MARY JANE SNYDER, Notary Public
Highspire, Dauphin County
My Commission Expires Sept I, 2006
Deputy Sheriff
Sheriff's CostS:$36.00 PD 12/28/2004
RCPT NO 202588