HomeMy WebLinkAbout05-4421
HOURIGAN, KLUGER & QUINN
A PROFESSIONAL CORPORATION
BY: James T. Shoemaker, Esquire
IDENTIFICATION NO. 63871
LAW OFFICES
600 THIRD AVENUE
KINGSTON, PA 18704
(5701287-3000
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 HWA KWAK
Box 672, RD#3 Bloserville Road
Newville, PA 17241,
Defendants
NO. DS" - ,l.fl..f~f
C;D i L ~Eiu-rt
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 without further notice for any
money claimed in the Complaint or for any other claim or reliefrequested by the Plaintiff. You may lose
money or property or other rights important to you.
677397.1
YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT
HAVE A LAWYER, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW. THIS
OFFICE CAN PROVIDE YOU WITH INFORMATION ABOUT HIRING A LAWYER.
IF YOU CANNOT AFFORD TO HIRE A LAWYER, THIS OFFICE MAY BE ABLE TO
PROVIDE YOU WITH INFORMATION ABOUT AGENCIES THAT MAY OFFER LEGAL
SERVICES TO ELIGIBLE PERSONS AT A REDUCED FEE OR NO FEE.
COURT ADMINISTRATOR
Cumberland County Court House
Carlisle, PA 17013
(717) 249-1133
-or-
PENNSYLVANIA LA WYERS REFERRAL SERVICE
P.O. Box 1086, 100 South Street
Harrisburg, PA 17108
(Pennsylvania residents phone:
1-800-692-7375; out -of-state
residents phone: 1-717-238-6715)
HOURIGAN, KLUGER & QUINN, P.C.
BY: ~~5------
James T. Shoemaker, Esquire
Counsel for the plaintiff, Mellon Bank, N.A.,
now by assignment, Citizens Bank of
Pennsylvania
677397.\
Ext.1126
Direct e-mail: ishoemaker(a)hkqpc.com
August 26, 2005
Sang Ho Kwak, individually
and d/b/a Young's Food Market
RD#3
BOX 672
Newville, PA 17241
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, .
~
James T. Shoemaker, Esquire
JTS:dg
THIS NOTICE DOES NOT SUPERCEDE YOUR OBLIGATIONS UNDER THE FOREGOING
NOTICE TO PLEAD
679988.]
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 PENNSYL VANIA
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 HWA KWAK
RD#3, Box 672
Newville, PA 17241,
Defendants
NO. DS - .L.J1fJ.1
CI~~L~8L~
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:
I. 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 18711-0] 0],
2. Mr. Kwak is an adult individual with a last known address of 2208 Chatham Way, Harrisburg,
PA 171]0.
3, Upon information and belief, Yon Hwa Kwak is deceased.
677402.1
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,OOO.OO, 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, furnitUIe, fixtures,
inventory, accounts and contract rights (collectively, "Young's 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 true and correct copy of the Security Agreement and the DCC-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 of the Note by failing to make monthly payments of
principal and interest due under the Note.
8. As a result ofMr. Kwak's default under the terms of the Note, the Bak and Mr. Kwak
entered into a forbearance agreement dated Aprill2, 2005 (the "Forbearance Agreement"), upon the
terms and conditions more particularly set forth therein. (A true and correct copy of the Forbearance
Agreement is attached hereto as Exhibit "c" and incorporated herein by reference.)
9. Mr. Kwak defaulted under the terms of the Forbearance Agreement by failing to make
payments of interest due under the Forbearance Agreement.
677402.\
2
10. The fair market value of the Young's Collateral is unknown, but is believed to be less
than the amount due and owing the Bank by the Kwaks under the Note.
I]. The Bank believes and therefore avers that Mr. Kwak has possession ofthe Collateral.
12. Mr. K wak 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.
13. The balance ofthe Note as of August 8, 2005 was $296,891.95, consisting of principal in
the amount of$291,949.92, accrued interest in the amount of$4,706.61, and late charges in the amount
of$235.42, 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$296,891.95, plus interest from August 8, 2005, 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,
HOUR1~UINN, 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, P A 18704
Telephone (570) 287-3000
FacsimiI7l(570) 287-8005
Dated: t1~lht 110 ,2005
677402.]
3
$
395,000.00
Promiso 70 Pay. FOR VALOE RECEI\'En,and intending to be k't~al1y
hound, Undersigned, as llcfmcl1 helow, promises In pay to:
M(~11on B,iTlYO-l N.!\..
r&;;;~)~;r~\ ~)-rue( Z\{~~--~--~----~------ ---.
Barr iBbu._0J' Penosyl vania
lhe sum of
Three Hundred Ninety Five Thousand and
00/100
Dollars ($ 395,000.00 ), :with interest on lhe
ouL~tanding balance from the dale of: this Promissory Note
("Note") at the rate(,) ("Contractual Ratctsn and in accordance
wilh the repayment schedule specified helqw.
Controctual Rat<3(s); Ropaymont Sc1wdules. :
o Interest at a rate per annum;which is %
above 133nk', Prime Rale, such rate to change from lime to time
as of the e!fcctive date of each announcdl change in such Prime
Rate, shal! be paid when principal paym,ents are due. Principal
shal! be pald III consecutive '1IOnthly instaUments of
$ .. each, commencing !m '
and contmumg thereafter on the i day of each month
with the balance of the indebtedness, if n<i>t sooner paid, due and
payable on :
o Interest at a rate per annum which is %
above the CD Rate, such rate In change /rom time to lime as of
the e!fective date of each change in or r,*etting of the CD Rate
shal! be paid when principal payments ar~ due. Principal shal! ~
paid in Consecutive m<jnth!y installments of
$ each, . I commencing on
. and continu"1& thereafter on the
day of each month wi~ the balance of the
indebtedness, if not sooner paid, 4ue and payable on
,
,
o The principal balance he),eof, together wilh all
a~ed and unpaid interest, shall be 'paid on .
and mterest at a rate per annum whicb is % above
Bank's Pr:une Rate, such rate to change trom time to time as of
the effecm:e date of each announced cha4ge in such Prime Rate,
shall be pald on the day of each! month commencing on
. ,
.'
,
I
o The principal balance ht' f, together with all
.a=ued and unpaid interest, shal! be pai on . ,
and interest at a rate per annum which % ahove the
CD Rate, such rate to change from me to lime as of the
effeeti;e date of each change in or reselti~~Ofthe CD Rate, shall
be paId on the day of each r~nth commencing on
I
o In no event shall the rate charged I'on this Note exceed
.. % per annum.
,
o The principal balance h~f' together wilh all
a=ued 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
. :',' '1Y- I
llil ... 5";') Interest shall be calcuJted at lbc rate of
A. ,0;0 % per annum. Principal and ~terest shall be paid in
'7Q ronse<:utive mootW installments of
$ 3 .Q'~ 65 each,
. ~
-<
"
w
~
w
!;;'
t;;
-'
;;'
/!
_f,' p$117~
!!?J!}VJ5!_2~_, and continuing lhcr(,~lrlcr on (he 1ST
day of (':tell month wilh the hal;lIlc,c of the- iildcbtcd'1C-;Z~~-irllOl
S{)\JIlCf p~lld, due ;~nd payable on _O!!)!!)j2014 _" During ~l11Y
pcnod tll,lt the ~.:ontractual Ral~(s) l~ reduced hy 0.2'5% ~r
,m.lll1~l, <1.'> dc.<c-nhcd c!:;;cw!1efc m tIll::; Nolc, il1stallmC'nls of
pnncj);:l.! and interest shall instead be in the amourll of
$ _,864.7.0 each. If the. redudion in the C...oo,tradu<\!
Rare(s) is or' longer in cffC'-cf, the ;1n10un( of installmenl.s or
pnncipal and inlcre">l shall return to and be lhe 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 has paid 133nlc, an
origination fee of $ .. 3,950.00.10 compensate Bank
for Its undC<Wl1ung, ongmatioo and administration of the loan
evidenced by this Note. This fee shaI! be deemed fully earned by
Bank on the date hereof, sbal! 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 133nk to take payments out of
a Mellon Olecldng Account, as set forth below Undersigned will
mail or deliver to 133nk the amount billed by Bank each month.
Undersigned will mail or deliver lbc 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 Olecldng Account
Number . titled in the name(s) of
. on or
after the day of eaell niorith. Undersigned will keep a
suffidcntbalance in this account to rover the ful! amounts of all
required payments. At, its option, Bank may terminate
Undersigned" ability to use this service. This authorizarion shall
remain in c.!fect until rcvuked by Undersigned in writing or until
the loan CVldenced by this Note is paid in full or until Bank has
tenni~ted Undersi~ed's a?ility ~o use this service, as the case may
be~ Poor to matunty, whde - thIS authorization is in effect and
provided that Undersigned keeps a sufficient balance in this
account to ooverthe full amounts of all required payments, the
O:mtractual Rate(s) shall be reduced by 0~25% per annum. This
authorization will be effective even though this Note and the
account may be tilled in diffcrent versions of Undersigned's namc.
If the original principal amount of this Note is in excess of
$10,000.00, or if Undersigned is a corporation, interest shal! be
calculated on lbc 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 not a corporation, interest shalt 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 ratc per annum announced
from time to time by Dank as its Prime Rate. The Prime Rate may
be greater or less than other interest rates charged by 133nk to
?ther borrowers. and is not solely based or dependent upon the
mterest. rate wtuch Bank may charge any particular borrower or
dass of borrowers. '
If a single certificate of deposit is held by Bank as rollateral security
for ~ i?<lebtedn'7" evidenced by this Note, as more fully
described III the Assignment of Deposit Account expressly referring
to Ibis Note, ';CD Rate" shall mcatt,,!l>e interest rate paid by Bank
00 suell certifi~e of deposit (the -aatifieate"), said CD Rate to be
- .. :,
.".. Page 1 of5
'.'1'.'
, . /
reset by llank at each renewal of the Ccrilflcate, l[ more tllan one
certificate of deposit is held by Bank as collateral security for tile
indebtedness evidenced by this Note, as more fulty dc..<:.criOCd in the
A~signmcnl(s) of Deposit Account expressly referring to this NOlt',
"CD Rate" shallmcan the hig,hc..~l of the interest rales paid by Ibn.k
nn such ccrtific~ltcs of deposit (the "O..TtiflGllCs"'), 5:lid CD ILlle to
be reset at each renewal of cadl Certificate.
Lata Chargo. If any paymcnt (including without limilallon any
regularly scheduled payment, balloon payment or final payment) is
not paid within 15 calendar days after it is duc, Undersigned will pay
a btc charge of the greater of $25.00, or three percent (3%) of the
unpaid portion of tile sclleduled payment due (regardl= of wlletller
tile 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 O:mtractual Ratc{s) applicable to the outstanding
balance hereof as a result of maturity of this Note or otherwise, a'i
well as in addition to any otller applicable fees, charges and costs.
Delaun Rate(s); Post.Maturity Rata(s). Upon the occurrence. of
any Event of Default (as defined in this NoIe), at Bank's option,
interest shall accrue at a rate equal to two percent (2%) per annum
above the OJntractual Rate(s) until the earlier of the date that such
Event of Default has been cured or until and including the date of
Dlllturity hereof.
After maturity, whether by a=leration or otherwise, interest shall
accrue at a rate equal to two percent (2%) per annum above the
OJntractual Rate(s) until all sums due hereunder are paid. Interest
shall oontinue to accrue after the entry of judgment (by oonfession or
otherwise) at the OJntractual Rate(s) until aU sums due hereunder
and/or under the judgment are paid, except that after maturity or, at
Bank's optioo, 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; Tlm6 of Essence. So Ioilg 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 aU of Undersigned's
obligatioos hereunder, including without limitation time of payment,
is ofthe essence oftrus Note.
_ Security Interest. Satoff and Assignments. To secure aU amounts
at any time owing or payable under this Note and Undersigned's
obligations hereunder, as well as to secure an costs and expenses
incurred by Bank in the oolleetion or enforcement of this Note or the
'protection of any oollateral securing this NoIe (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, an deposit accounts, credits, =rities,
moneys, or other property of Undersigned wbich may at any time be
in the possession of, delivered to, or owed by Banlc, 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 sct forth in other documenlS and
agreements.
Undersigned acknowledges and agrees lhat Undersigned shan
renew', or cause to be renewed, the Certificate(s), if any, untit the
indebtedness evidenced by this Note has bt:A:n paid in full.
Undccsigned further agrees that Undersigned win emeute, or will
cause to be executed, upon demand by Bank any financing
&latements or other documents, including, without limitation,
additiooal Assignments of IJcpQoit Account, wbicb _ may deem
n=ssal)' or desirable to C\'idenee, perfect ()( maintain perfection of
the =rity interests created in the O:<tiftcate(s) and any renewals,
replacements and substitutions thereof.
,.
,
Additional Tenus and Conditions
L Covenants. Undersigned covenants and agrees that until an
indebtedn"'" evidenced hereby has been paid in fun, Undersigned
shall: (a) maintain at all times a positive tangible net worth: (b) (1)
have all Envlronmcntal Permits necessary for the conduct of caell
of U ll(_krsigncd'.s busincS-.'ics and operations, (2) conduct C;jCll of
Undersigned's businesses and operations in material compliancc
with all applicahle Environmenral Laws and Environmcnwl
Permits, (3) not pcrmi1. 1.0 exist any event or condition that requires
or is likely 10 require Undersigned under any Environmental Law
to payor expend funds by W'dY of fincs, judgments, damages,
cleanup, remediation or the Ijkc in an aggregate amount, the
payment of wbich could reasonably be expected to interfere
substantially with normal operations of Undersigned or materially
advecscly affect the finaneial oondition of Undersigned, (4) notify
Bank promptly upon beooming aware of any pending or threatened
proceeding, suit, investigation, allegation ()( inquiry regarding any
alleged event or condition that, if resolved untavorably 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, deaning, 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
satisfactOl)' to BanI<; (c) conduct each of Undersigned's businesses
and operations in material compliance with aU federal, state or local
laws, statutes, regulations, rules, ordinances, oourt or administrative
orders or decrees, or private agreements or interpretations, now or
hereafter in existence, directly ()( indireetIy 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 aeeution heroof; (e) promptly notify Bank
in writing of any change in Undersigned's residence or anef
Executive Office; (f) purchase and maintaio policies of insurance
(l11cluding fiood insurance) to prot<ct against such risks and
casualties, and in such amounts, as sIiaII be required by Bank
and/or applicable law, which policies sIiaII (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 oontain a
lender's loss payable endorsement, and (3) be (or certificates
C\'idencing same shall be) deposited with BanI<; (g) (1) maintain
and leep 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 (inducting without
limitation annual and periodic balance sheets and income
statements, personal finaneial statements, federal inoome tax
returns, inventOl)' reports (including a description of raw materials,
finished goods, and the aging thereof, as applicable), and accounts
rcreivable and payable aging reports), aU in form and oontent
satisfactOl)' to Banlc, and (3) permit, upon request by BanI<, any of
the officers, employees or rcpr=ntativcs of Bank to visit and
inspect any of Undersigned's properties and locations and to
examine ilS 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 shan have
reasonable grounds for believing that the value of the collateral
securing the indebtedness evidenced by this Note has become
insulIicieal to 5CCUre oaid indebtedness; (i) pay, upon demand by
Banlc, (1) all costs and fees pertaining to the filing of any financing,
continuation or termination statemeots, mortgages, satisfaction
pieces, judgments and any 0Iber type of document wbich Bank
deems n=ry or desirable to be fi1cd with regard to seeunly
interests wbicb ..:cure the -indebtedness C\'idenced hereby,
regardless pi whether such sooirity interests were granted by
UndcrsigneIl.and (2) aU ((lSts anQ~ incurred by Bank in
'.\' ," Page20f5
.;'
wnnection with any collateral securing this Note (including without
lim~lation aU advances made by Bank for l3XCS, levies, insurance,
repairs to or maintenance of said collateral, appraisal or valuation
of &>.id co\btcra\, and determination of flood haz...lrd), regardless of
whether such collateral is owned by Undersigned; and (j) pay, ufX'n
demand by Bank, aU amountS incurred by lbnk in connection with
~lI1Y action or proceeding taken or commenced by Bank. to enforce
or coUect this Note, induding attorney's fees equal to the 1c......<;er of
(1) 20% of the ouL<;tanding principal balance and intercst then duc
hereunder or $500.00, whichever is greater, or (2) the max1n1Um
amount permitted by law, plus attorney's costs and all costs or legal
proceedings.
2. Events of Dofault. The occurrence of any of the {oU{)lN\ng 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
Dank; (b) the breach by any Obligor (defmed as Undersigned and
each surety or guarantor of any of Undersigned's liabilities to Bank
as well as any perron or entity granting Bank a security interest in
pcopccty to secure any indebtedness) of any COYCI13Ilt contained in
this Note or in any separate security, guarantc<: or suretyship
agreement between Bank and any Obligor, the occurrence of any
default hereunder or under the terms of any sudt 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 suhmitted to Bank by any Obligor; (e) with
respect to any Obligor: (I) 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; (I) the filing or
commencement of any petition, action, case or proceeding,
voluntary or involuntary, under any state or federal law regarding
banlcruptcy, insolvency, reorganization, receivership or dissolution,
including the Bankruptcy Reform Act of 1978, as amended, by or
against any Obligor; (g) default under the teons of any lease of or
mortgage on the pcemises where real or personal property securing
the indebtedness evidenced by this Note is located; (h) the
garnishment, laX assessment, attachment or taking by
governmental authority or other creditor of any property of any
Obligor which is in Hanle's possession or which constitutes security
for any indebtedness evidenced bereby; (i) entry of judgment
against any Obligor in any court of r=rd; (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 Ie\)' or the entering of a lien in connection therewith;
(k) change in control or or transfer of any intercst in any Obligor
(other than an Obligor who is an individual); (I) . determination by
Bank, which determination shall be conclusive if made in good
faith, that a material adverse change bas occurred in the firulncial
- or business condition of any Obligor; (m) the maturity of any lire
insurance policy held as collateral for the indebtedness evidenced
by this Note by reason of thc death of the insured or otherwisC; or
(n) default by Undersigned in the payment of any indebtedness or
Undersigned or in the performance of any of Undersigned's
obligations (other than indcbtedness 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; Remedios. Upon the occurrence of any Event of
Default: (a) all amounts due under this Note, including the unpaid
balance of principal and interest, hcreof, shall become immediately
due and payable at the option of Bank, without any demand or
notice whatsoever; and (b) Dank may immedialely 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. NOlwithstanding any pcovision to the
contrary contalned bcrein, upon the occurrence of an Event or
Default as described In Section 2(1) bcrco~ an 3lIlOUnlS due under
this NOle, induding W....Jut limitalioo the unpaid balance or principal
and interest herror, shall become immediately due and payable,
without any demand, notice or further action by Bank whatsoever,
and an action therefor sh:lll immedialely :lccruc.
4. Bank's Rig!Jts. Undersigned herehy aultlorizcs Bank, and Bank
:;;hall have lhe cOlllinuillg righi, at it:;; sole option and ULS<:Tcllon, to: (:1)
do anything which Undersigned i.<; required but fails to do, and in
particular Hank may, if Undersigned fails to do w, ohtain and ~IY Bny
premiums payable on any policy of insurance required to be obtained
or maintained hereunder; (b) direct any insurer 10 make paymcnl or
any insurance proceed:">, including any returned or unearned
premium:">, 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 or the loan evidenced
by this Note to any or all or the Undersigned individually or joinUy, or
to such other person(s) as any of lbe Undersigned may direct, except
to the extent otherwise provided in Section 6 herrof; and (d) add any
amounlS paid or incurred by Bank under Section I(i), Section 10) or
Section 4(a) to the principal amount of the indebtedness evidenced
by this NOle.
5. Authoriz.a6on I" Borrow. Undersigned hereby represents, warranlS,
certifies and covenants as follows:
(a) If Undersigned is a corporation, that the pcrson(s) signing below
hold(s) the office(s) indicated below (and continue to hold such
office(s) until Dank has received notice to the contrary in writing
from Undersigned), and that the Doard of Directors of Undersigned
has adopted resolutions providing that: (I) 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 firulncial arrangemenlS 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 agreemenlS,
assignmenls, 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 01
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 bindiog 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 paitnership, that (I) Undersigned'. 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 arc authorized (i) to incur
indebtedness and obligations on behalf of Undersigned by borrowing
from or making other financing or credit accommodations with Dank
from lime to time, upon such terms and conditions as thcy in their
sole discretion deem desirablc, (ii) to make, execute, and deliver
promissory notes, Ictter of credit agreements, security agreements,
assignmenls, mortgages and all other documents required by Bank in
connection with the incurring or indcbtedness Of obligations, and (iii)
to assign an4. pI~ge as collateral security for any such indcbtedness
or ObligatiOnS, ~Ow or hereafter existing, any real or personal
property of Undersigned; (3) the actions of anyone or more partners
of Undersigned in borrowing money from Banle beretofore for the
account of Undersigned, in assigning or pledging any of
Undersigned's pcoperty for the payment thereof, or in doing any
otbcr act in, connection thercwith.,are hereby ratified, conlirmed, and
approved; (41.notwithstanding anyt.odiflC8tion ()( tenninatlOiJ. of the
Page30f5
.~i.
,
power of any of the partners to represent said fum, whether by
expiration of the partnership agreement, by death or retirement
of any pannef, or the acccs....;;ion of one or more new partners, or
othcrv.'isc, :lIld notwithstanding any other notice thereof Bank
may receive, this authority shall continue to be binding upon each
of the Undersigned il1di\'idll~l1!y and upon their kgal
rcprcscllwtivc'l, and u{xm Undersigned alld its successors, until
Bank has received notic,C in \\'firing (0 the mOlfary signed by one
of the Undersigned or by Undersigned's duly <iuthoril.cd agent
(Receipt of such notic'c will not relieve any partner of any h3bilily
arising from obligations incurred prior to Bank's receipt of such
notice.), and (5) nothing herem shall t:>c construed to IlIml tile
rights granted to a partner by law Of by the partnership
agreement, but all rights granted herein shalt 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 confinns 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 ao:ount
of the indebtedness evidenced hereby. Undersigned warrants that
Undersigned has no defense what.soevec to any action or
proceeding that may be brougbt to emorre or realize on any such
judgmenL (e) If any provision bereof 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 bad never been a part of il The
descriptive beadings of this Note are for convenienre only and
shall not in any way affect the mealling or construction of any
provision bereof. (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) 1bis 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). (I)
Undersigned hereby irrevocably appoints Bank and each holder
hereof as Undersigned's attorney-in-fact to endorse
Undersigned's name to any draft or chcclc which may be payable
to Undersigned in order to collect tbc proceeds of any insurance
or any returned or unearned premiums in respect. of any policies
of insurance required to be maintained hereunder. Undersigned
hereby aelcnowledgcs that this appointment of Bank and each
holder hereof as attorney.in.fact is irrevocable and is coupled
with an intercsL (g) Undersigned assigns to Bank all moneys
which may become payable on any policy of insuran<:e 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, rute,
ordinance, court or administrative order or deccee, 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 Hw..ardous
Substances, or in any way relating to pollution or protection of
the environment or public health. (i) "Environmental Permitll
means any federal. state or local permit. licen"iC or authorization
issued under or in connection with any FnviroomentaJ Law. 0)
"Hazardous Substances" means pdmIcwn and petroleum
products, radioactive materials, asbestos, radon, lead
containing materials, sewage or any material.<i. or substances
defmed a<; or included in the definition of "har...ardi..)us wastes"
"Jlazardous substanc-cs," "hazardous materials," "toxic
substanccs," "hal..:lrdollS air [X>IIUUlOts," "toxic pnlhnant:),"
"fXJllution," or tcrms of similar meaning. as those lemlS arc
uscd in any Environmental Law. (k) "Chief Executive Office"
mcans the pl~lcc from which thc main part of the business
operations of an entity is managed. <') "Undco;.igo.cd" refers
illdividuaJJy and collectively to all makers or this Note,
including, in the QI.'iC of any partnership, all general partners of
such partnership jndividualIy and coUcctively, whether or not
such partners sign below. Undersigned shaI1 each be jointly and
severally bound by the terms hereof, and, with respect to any
partnership executing this Note, each gcueral partner shall be
bound hereby both in such gcueral partner's individual and
partnership capacities.
7. Direction to Pay Proceeds.Undersigned hereby authorizes and
directs Bank to pay the proceeds oUbis Note by: " .
P: N"", i),-7-1;'i..lJ .'/11 I }() /-
creditingAo:ountNumber uvv-vl.. 7 'I' I.PI;LU
in the name of I /
5fJN6110 ~D~ JfWJ} KIJPrf\.
intheamountof$' '., N
I m n '52Q 00 F~I~i!n<j dltM)
''f.7Ipaying (nfJ n:ff UJ,' , 10/-57':;--/'2 &9J .
/\ A wI:. "'.31 JQ5.,3 jUCj' '2-q ZL
the amount of $
~ying fjltJiflCfJL! 11?;I91.tpf
the amount of$
8. Affidavit of Business Loan.(This Affidavit is not applicable if
Undersigned is a corporation.) Undersigned, being duly
authorized, deposc(s) and say(s) under penalty of perjury that
Undersigned: .
(a) WAre engaged in business aslla Owner(s), 0 General
Panner(s) ot (name and nature of husiness)
YOUNG'S FOOD MARKET AND .
SAY-FOP!? SUPERMARKET 'If. yf-"'"
FOOD MARKET
(b) Hereby make(s) application to Dallk for a loan, the
proceeds of which will be utilized for the purpose(s) of
REFINANCE MELLON DEBT. OTHER DEBT
CONSOLIDATION & EQUIPMENT & INVOICE
PURCHASE
(e) Exercisc(s) actual control over the managerial decisions of
the business.
(Remainder of page intentionally len blank)
~,." Page 4 of 5
,
. ..~..r
'9, Confossion of Judgmont. UNDERSIGNED HEREIlY
EMPOWERS TIm rROTIfONOTARY OR ANY
ATTORNEY OF ANY COURT OF RECORD TO APPEAR
FOR UNDERSIGNED AND TO CONn;ss JUDGMENT
AS OITEN AS NECESSARY AGAINST UNDERSIGNED
IN FAVOR OF '11 IE HOLDER IIEREOF, RH,ARDLESS
OF WHETIIER ANY EVENT OF DEFAULT liAS
OCCURRED, AT ANY TIME AND AS OF ANY TERM,
FOR l1iE OUTSTANDING PRINCIPAL BALANCE
HEREOF PLUS INTIiREST DUE IINDER 1'1 IE 'noRMS
HEREOF AND ALL OllIER AMOUNTS DUE
HEREUNDER, lDGETIfER WITH COSTS OF LEGAL
PROCEEDINGS AND AN ATIDRNEY'S COMMISSION
FOIIAL TO TilE LESSER OF (A) 20% OF TIlE
OUTSTANDiNG PIUNCJI'A'- BALANCE AND
INTEREST THEN nUE IIEREUNDER Oil ssex)()()
WIllCIIEVElt IS <iREATER, OR (lJ) 'J1IE MAXIMUr--t
AMOUNT PERMrITED BY lAW, WrI11 RELEASE OF
ALL ERRORS, UNDERSIGNED WAIVES ALL LAWS
EXEMI"I1NG IU2AL OR PERSONAL PROPERTY
FROM EXECUTION,
By signing this Note, Undersigned agrees to all tcrnts 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 of Ruslness Loan (If completed) set forth In
Section 8 of this Note.
Witness the due execution hereof under seal.
x
Witness:
:"".~~n
,
Mdlon Bank, NA
Mellon Bank (DE) National Association
aASO R<v.(lot16) LC 91961D 9196
0Il5 P 166-64-3823 1 d450(OI)
052199.1605
,
's FOOD MARKET AND
UPERMARK:BT 5"i4Y~F!-~..-?.J s:'--/?Fi;..",?-j,.-;,Jlo?7
672 B ERVILLE ROAD I
NEWVILLE, PA 17241 )'IL.- 'lIe
Individual:
~UN~AK iJJJ{L {L~fL
672 LOSERVILLE ROAD
NEWVILLE, PA 17241
(Seal)
-'.~~-'
rageS 0[5
:~;- '
.:_:.,,;.>: .. :::::::~::':::':::::::::: .....:~.:.;... .,.,; :::.~;:,:;:,::.~;::;::.;.:.:.....,. ...._.................w... ;.:;.:.:.:...:~,.:.~:.:;.:.: .,;.,:.:.;.:.:. .. ..... ........w................
L;;[I'J"'itlll!tli')lllll"llltllill"ltillilllill*-II~~tl~l~t~
...":.......,,...:.,~::;::.~:~~::;:,:::::: ...~....~.:;..........:::":::::;:::':':::::;l:::;'::... .\:.~~:.:~::.:~.? :':':';'~~:::~::::~:-:-..~'*:::;:;:r,:"
iS~^rim;Wr 'r,jm~nf '.
...~...~~> ': ",,:;:'*0'::-'>:--)'''; .-::>>.-1, $~d' ~~ ",'x:;::,-:;.-M'
, ~%>:x. ~*~..-::::,:tr,*~-:;;>>::-:-'%%4:;:'-:: -:;W:B:~~tY. :;.::(~~:::~*:x:.:.;
":.'-'-''i:1'}h~~~.>>.w...'''''''-:).~~5:;-).<...~~>>>>>>>y;~>>>'f%~~:'''$':~)).)-<;:Y:i"'),%'\
For value received, and intending to be legally bound, in
consideration of a loan or other credit accommodation in the
amount of
Three Hundred Ninety Five Thousand and
00/100
Dollars ($ 395,000.00 ) made by
Mellon Bank. N.A.
~Bank'~to
i~~~i~ ;:~v9:4Y 00
SAY-F' SUPERMARKET V
('Borrower(s)"), said obligation evidenced by a
PROMISSbRY NOTE
dated
Undersigned,
follows:
_ /; - - d f2 c <; 7 (the "Note')
intending to be legally bound, hereby agrees as
L 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! ~ Yk/a) all equipment, wherever located, including
ma 10 ry, motor vehicles, furniture and fixtures;
IX! ~ ~~ll 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# Y J;J 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 moneyl 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 [or such
securities; and all subscription rights incident to such securities;
o (e) all farm products; and
o (C) all property or rights described below under the
caption 'Description of CollateraL'
Description of Collateral (Give a sufficiently detailed description
to identify each item).
!.
<i
eo
w
~
w
~
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~
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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-<:ash) 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-<:ash) 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 uneamed
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) o[ this Section L
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 C'Obligation(s)"): (a) all amounts at any time owing or
payable undl:( the Note, and any other indebtedness, liability or
obligation of Borrower( s) or of Undersigned to Bank, now existing or
Page 1 o[ 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 furtber
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
tbat 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 cbange 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 acceptahle 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
cbattel paper representing any of the Collateral and immediately
assign of record to Bank any judgmenr 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 lime, whether
or not any default has occurred under this Agreement, and at its sole
option and discretion, without notice, to: (3) take over and collect any
or aU 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 Casb Collateral account which is subsequently dishonored; (c)
at any reasonable time, through its authorized agents and employees,
inspect, audit, and verify the 3C00Unts 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 tbereby, 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 sball 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 federat 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 statem~Qt may be filed as a financing statement.
12. Additional Power of Attorney. In addition to the powers of
attorney g~ted to Bank by Undersigned elsewhere in this
Agreement, Undersigned hereby appoints Bank and its officers,
Pagc30f4
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UCC FINANCING STATEMENr AMENDMENT 0 ,L~~
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Oct-l0-l004 08:,lam
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. IXb'ror. n:1me (ltt&t name G(l;t if individual) .1l1d DJallJn!; IlkIn::ll,'1:
.' "~AK. SA!<l.G tlO
RD 3 OCK ~"'1'L
}l(WILLE, PA 1nt.1
Dcbtut' ,JUlW.C (la&t name t1~t IT indivicJu"l) and roailin& Hdd~;
YDllloH,'S FOOO HARKET
RD 3 EOl( 3t6" ,","'l"\-
NEUVILLE. PA 17241
DeMur tulmo= (lut n.:une r111t It individUAl) and mniling addInla:
8c<.1lRdParlt(lcs) namt;(l) (b:taemefi:rJ;l iCindividUal)an4
addreu:!or &OCUl'ity JUtc.n:llt tnrotmatkm:
Kelton 8ank~ ~4A.
.\.\Ainaoo 1I8f'!1l:tng lean Ccrlter
OM- HellOC'1 think: Center! Rnl.4 151-12.70
PlttSburg~. FA 1S2SS-0u01
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A.u.(pec(.) .t St-cuNd Putj JWru!(s) (1m n.&mc first JC indMdu.al)
~.dclreR; rorcecutity intaa:c 1n!ormation-.
s.-w>>>-.rl''''''.. (~"..plieable):
o The lctma "Pcbl<x" and 'Sccurol Pany'..... "Les&e<"
KlS. ~:l'Olpo:tivcl>,.
C The: (Q:m& "Oc:bc:~ and. "$ecIw:;d P"~ D1e14 "'Condgnc..;-
pel "CoaJlpoc," rapc:c:tivdy.
o IJcb.t<< III ~ 't'nnc:niUiu&, UIiGo/_
SECURED PARTY SIGNATIlRE(S)
'I1llIab.kmcut II. t1lld wtthanlr the S<<llJ'CId Parlt' ~ to
ped"" .1CCOdl)' u.t=t In roIl.t=1 (<:b<:cl< applicablo 1>0<(<<))-
a..O~4!~lJ\cr.duuJ~atQam#.o 1d4:P.UtJ''''<<I~t.e IItnlcture
oCthe Debtor.
b.OV:lQwhichtb,=, n1.lna:*lapud.
c. altc:adyaubjtd to a cco.mtyinl.erea 11\ awotJurC6lll1l7ln
J'awayh'ArLla -
o v.t&cn\ho t4UaunllVUmo"'c4 toth1&OOUQi)'.
o ..wen the Debtor. tt:clclll'nctl: or pLi.<cc ocbu:dndfl 'fI'U lP,oved
to UtilI o:waty.
4.. alceadYl'UbJcc:ttaaxcdrltylntcre1t(q ADGlhCl'~ct10k_
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e.O whkhJ. ~ oCtf\<'lccl1a(eca)dcscn'"tJdiublocf&:9.
in 'W'hldl a accurity ihIelUt wu. p~\1:It:f pedectcd (ma da.eribc::
~ In b1ack.9. ifpurchuod with au p~ and lIot
adequately ckIa1.boJ. 00 l1w: oc1ll:r~l fmananc Sl.llIloaent).
:;.cured ParC! StanAlUl'c(.)
("'I"ited OAlyIf ""'<"') .. cboe>.edaw.-c),
MEllON B
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Uniform CQm~al Code Forni UCC-l
/7 -.:l J IMPORTANT-Pk-a~reo.dlm:trudiolli:
__{Y:1 t2 _ <.1\rt."rul1ykforeromplehn?
Flll"l: 1'\0.. (Sl.'\mprd l')' t:iullgoCllCCr): ~ ~t~~ ~"~ ~.IV~~ (jl~ll"KXll:1f GIll!!; ofLica):
::', :~G' ",',< 0r DEEDS
";".I"~'ILAtIO COUNTY-f'A
'9'{ JUI4 26 Al'IIO 51
5
la
This Flnanclng StAk~ Ia paented tQl" tiling'pUIaUBIll \0 me UauonD, Commcrdd
Cod~ and ~ 10 be: filedwlth lhc(chcdc..lIpplIQblc-box):
o $6crd.al)'oCu.e~th. <~. fir-. '?'
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A.lt. OEllTM'C ItrCKT, U1'l.e. AND, INTERESr{\lKEl"HER Nau OR
KE..RaFTt:R EXISTJIlG OR ACOUIfl'S)I.IK AHa. TO.At.L INVENTORY
(INCLUDING aElURNED OR. IEPQS$ESSfI) COCDSi)': ACCOU"T$r C1PEK
ACCOONT$f Gf:NElAL IIlTIJIGlat.fS.. ~p~EJnS;J;CHA1'TEL PAPER,
UlSlltUtEJO'lj:, lIOTES, DRAftS, t.fTTElS,QR AD.,ICfS Of C~DIT..
RECEIVAUlES, Ol'tl:ER .AMaJN.TS MNG TO OESTOR, FIXTURES.
FUIUU~ AJC) ftIJIPHM I ALL AACOtlcTS ANtL,CASH J.ND
NON-eJ\$lf .ROCEBlS (lIlCUDlia ,.SllAANCf. I'Olle1'$ JJlJ]
fROCEZ:DS) Of rilE roREOOIt4(; lSm AU. 'GUAR.QTtES" C1.J.JKS,
RIGHts, kEKF.OIES AfIl PRfVlt.EGES.~~LA.r~~~?8EP.ETO.
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1. 0 ctvpCpowinc:ortob:~Oa'-' --" ........
b. G:J IOOdcwftld:llltc DC ane 10 ~e:f1xt~ '-~"7"
Co IJ tnlo<.-.b at Jbo IJko (bid""",, all.... ;oS) .. CXU><tcd QU -
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d. 0 &(CGG.QtlI rdu1da& fr'GDl tbc-'w.;:,<<'~~.itXihc: l1kc (indudin;: aU aDd ,t.4.C) At
'~weDheadatll:1iAehcadCIQ...... .;.-. :A1l.d~".i"J
,be CoIlowiaC real c:st~Uc:: :' :, ':j - \ ~ '
"" 3 BOX J;>A ,
Sl=tM....... .EWILLE PA 17?<1.j" . "
n..onL<d..: lloolc'Ot(<oI.<cl:'cn40,,=,> DMQrtgaac,
atPate(l) Car OJHa'€RLAWO--~f,+':~~
O::)unty. UnibmP4tCdTdcntJUd~.. ~"-H.~~...
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DEBTOR. SIGN;(tul>:E(S)
SAKG HI) k\W:: c~~. ~.;";':~-;'
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Mellon Ilanlc:" ".1...
llUS(oe$$ 831'1k.ing lOGn ~tll~
P.O~ Box SD80 . .
Pltt:lOburgh. PA 1S230~3080 .~:;..
Atto: Coll.t.~.l unf~
11
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ORIGINAL COPY
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'02 APR5 MIl D2
. ~-.;~,;~,':"::">r~'';.~~'-' ..'h'
fQu.O\Ifll-l~"-""'Malol~
A... NAME &. PHONE OF cONTACT A,fi(..5t (QpUoMlf
UCC FINANCING STATEMENT AMENDMENT
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a. ~EHOAC::IQ.(OWLECC.\.laq-TOl ~&MM4"""1
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8Ll$ltMU .At'J<I1'\f Lu., ctttur
".0. 141. 3080
P1 ttst::ul1lhr PA. 1S2Ja.lO&n
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~cfl-;Vd."..............w..~a.-4M.~l~"""lN'~""1'.
O~"""'&NJ/IfII-IID.1I~----"""""'-"-"""'" OotUriMl'M4 .......~...,.. O~.~~""7&"7kw_
...-1f~~IR"""l'",,,,"''''''''_~fl~~~~h. ....II-.c.f........," ...h;-.~......,..~'''u~
'tHE...
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1OllU<. SANG no,
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RD "" ,,,,.. 672 NIlINILLE PA 17241 ~
1'''- lAXlO-.hH6fUl" 1=~ r"ll?€~~ l'(."'~Cf~l'oC>>l 1.~TfOJr(ID<l'.1I....
- 0..".,
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OR eh:tu". 1ank. at '~'1\'Wr1h l\I'Ilf\cU 14f\'dntl LaanC.,t..;:"~~:,:~~.:
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111 ~~~G(T" 275
l.l..o<,'7$ k.ow..&.attLC..UI LDwl N.'TIc.u.LUCCF\NJ..NC\NG $.TA.TE64EN,T ~OMeNT (FORM ~~C31 tnEV.ar/2"ilM.\
""lli 0. ~t."'--h I 17J.V."1~ 11111 l~UQ\.lj;:c. .. .~_.__
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Detail report item ill printed by: DOTTIE HOFFMAN on 2/22/01
-===~====~====~=================~=============~================================
PENNSYLVANIA \lee DF,TA TJ. REPORT
Ili\T/\ ClIVI':;Zi\(;I': TIIIZlI\ll:11
].'I<H () I), )('11) 1
;:1':1\1\('11 UlMI'I,I-:T!ill
1"1-:1\ :'), )()(II
(Ii;: II() J\H {C:;Tj
Filing Loc~tion:
:;ECRETAHY OF STATE OF PENNSYLVJ\NJJ\
:JOP NORTIl OFfF:I': hO] W] N(i
HARRISBURG, PA. I7IOc,-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 I~
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 EXPERIA!'
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.
..v'
'.1
. ; , ~ ..... L I " i,.
....:
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, ' ~~! ': ' , .,
.
FORBEARANCE AGREEMENT
This forbearance agreement ("Agreement") is made this ~ day Of~' 2005 by
and between Sang Ho Kwak, individually and d/b/a Say-Ford Supermarket aIkIa Sayford Supermarket
(hereinafter, Say-Ford Supermarket and Sayford Supermarket will be referred to as "Say-Ford
Supermarket") and d/b/a Young's Food Market ("Mr. Kwak") and Mellon Bank, N.A., now by
assignment, Citizens Bank of Pennsylvania (the "Bank").
WIT N E SSE T H:
WHEREAS, on or about May 28,1999, the Bank made a loan to Mr. Kwak and Yon Hwa
Kwak ("Mrs. Kwak'~ Gointly, the "Kwaks") in the amount of $395,000.00 (the "Loan");
WHEREAS, the Loan is evidenced by a note and security agreement dated May 28, 1999 (the
"Note");
WHEREAS, in order to induce partially the Bank to make the Loan, the K waks executed and
delivered to the Bank a mortgage (the "Mortgage'~ on their improved real estate situate in the
Township ofFrankford, Cumberland County, Pennsylvania, as more particularly described in
Cumberland County Mortgage Book 1552, pages431 et seq. (the "Mortgaged Property");
WHEREAS, in order to induce partially the Bank to make the Loan, Mr. K wak, individually
and d/b/a Say-Ford Supermarket granted the Bank a security interest in, among other things, his
equipment, machinery, motor vehicles, furniture, fixtures, inventory, accounts and contract rights
(collectively, the "Say-Ford Collateral"), as evidenced by a security agreement (the "Say-Ford
646216.3
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----_.- -----~--~--_._-_..._._--- .. ...,----..---.-
Security Agreement") and as perfected by certain UCC-l financing statements (the "Say-Ford UCC-I
Financing Statements");
WHEREAS, in order to induce partially the Bank to make the Loan, Mr. Kwak, individually
and d/b/a Young's Food Market granted the Bank a security interest in, among other things, his
equipment, machinery, motor vehicles, fumitliIe, fixtures, inventory, accounts and contract rights
(collectively, the "Young's Food Market Collateral"), as evidenced by a secmity agreement (the
"Young's Food Market Secmity Agreement") and as perfected by certain UCC-I financing
statements (the "Young's Food Market UCC-l Financing Statements");
WHEREAS, Mrs. Kwak is deceased;
WHEREAS, Mr. Kwak defaulted under the terms of the Note for failing to make payments of
principal and interest when due;
WHEREAS, as a result of Mr. Kwak's defaulting under the Note, on or about December 2,
2004, the Bank confessed judgment against Mr. Kwak in the Court of Common Pleas ofCmnberland
County at No. 04-6040 in the amount of $384,294.24, plus interest and costs (the "Confessed
Judgment'');
WHEREAS, Mr. Kwak has informed the Bank of his inability to pay the Note, in accordance
with its terms, and has requested the Bank to enter into this Agreement relative to this one obligation
of the Kwaks to the Bank;
WHEREAS, Mr. Kwak and the Bank wish to enter into this Agreement without the Bank's
waiving any of its rights and remedies under the subject indebtedness, but in an effort to permit Mr.
646216.3
2
--,--_..-"~-----_._---_..._---'-_.._._._-_._....<-
Kwak the opportunity to resolve his financial difficulties and to arrange for the repayment of his
obligations to the Bank under the Note;
WHEREAS, in consideration of said forbearance, the parties hereto wish to enter into this
Agreement outlining the terms of the forbearance.
NOW, THEREFORE, intending to be legally bound hereby, and in consideration of the
mutual terms and conditions hereinafter set forth, the receipt and adequacy of such consideration
being hereby acknowledged, the parties hereto mutually agree as follows:
1. Confirmation of Mr. Kwak's Indebtedness. Mr. Kwak hereby confirms and
acknowledges that he is justly and truly indebted to the Bank under the Note, without any setoff or
defenses thereto. There is due to the Bank under the Note as of March 23, 2005 the amount of
$298,840.40, consisting of principal in the amount of$297,289.47 and interest in the amount of
$1,550.93, accruing at the approximate per diem rate of$70.l9. It is expressly understood that the
foregoing statement of indebtedness does not include accrued interest from March 14,2005,
attorneys' fees and costs, or other expenses which may be incurred by the Bank if the Bank [mds it
necessary to exercise its rights or remedies under the Loan Documents (as hereinafter defined). It is
further expressly understood that the aforesaid amounts shall be included in the indebtedness due to
the Bank from Mr. Kwak.
2. Confirmation of Loan Documents. Mr. Kwak hereby acknowledges and agrees that
the information contained in the above-referenced recitals is true, accurate and complete, and fliIther
ratifies, confirms and acknowledges that all loan documents (the Note, the Mortgage, the Say-Ford
Security Agreement, the Young's Food Market Security Agreement, the Say-Ford Financing
646216.3
3
Statements, the Young's Food Market Financing Statements, and any and all addenda or supplements
thereto, and other related documents executed by the K waks, or either of them, and delivered to the
Bank (hereinafter collectively referred to as the "Loan Documents")) concerning the indebtedness as
referenced hereinabove and the Confessed Judgment are valid, binding and in full force and effect as
of the date hereof, and that the Kwaks have no defense, setoff, counterclaim or challenge against the
payment of any and all sums owing under the terms of the Loan Documents or the enforcement or
validity of any of the terms thereof.
3. Re-affirmation of Certain CQllateral. Mr. Kwak hereby confirms and re-affirms that
the equipment listed on Schedule A hereto is part of the Say-Ford Collateral and/or the Young's Food
Market Collateral and is subject to a perfected, first lien security interest in favor of the Bank. Mr.
Kwak further agrees not to move any or all of the equipment set forth on Schedule A from the
location set forth on Schedule A without first obtaining the express, written consent of the Bank,
which consent may not be umeasonably withheld. Mr. Kwak also agrees not to sell any of the
equipment set forth on Schedule A without first obtaining the express, written consent ofthe Bank,
which consent may be withheld for any reason.
4. Payment of Indebtedness. On or about December 29,2004, Mr. Kwak paid the Bank
$30,000.00, for all past due payments, late charges, attorneys' fees and costs due under the Note and
in consideration for the Bank's agreeing to enter into this Agreement. On or before April 1,2005,
Mr. Kwak shall pay the Bank a principal and interest payment of$3,923.65. On or before May 1,
2005, Mr. Kwak shall pay the Bank a principal and interest payment of$3,923.65. On or before June
c1,2005, Mr. Kwak shall pay the Bank a principal and interest payment of$3,923.65. On or before
646216.3
4
July 1, 2005, Mr. Kwak shall pay the Bank a principal and interest payment of $3,923.65. On or
before August 1,2005, Mr. Kwak shall pay the Bank a principal and interest payment of$3,923.65.
On or before September I, 2005, Mr. Kwak shall pay the Bank a principal and interest payment of
$3,923.65. On or before October 1, 2005, Mr. Kwak shall pay the Bank a balloon payment of all
principal, interest, late charges, attorneys' fees and costs, if any, then due under the Note.
5. Forbearance Term. The Bank hereby agrees to forbear from exercising the rights and
remedies available to it as a result of the defaults which have occurred prior to the date hereof until
the earlier of October 1,2005 or an Event of Default (as hereinafter defined).
6. Interest Interest will continue to accrue on the outstanding principal balance at the
contractual rate set forth in the Note.
7. Finandal Statements. During the term of this Agreement, Mr. Kwak shall, upon
request, provide any and all financial information the Bank may so request from time to time,
including, but not limited to, a copy of his most recently filed federal income tax retUIns and current
fully-executed financial statements.
8. Events of Default. The occurrence of any one or more of the following is an Event of
Default hereunder:
a) Mr. Kwak fails to observe or perform each and every provision of this Agreement, the
Note, and any other loan documentation relative to the obligations of the Kwaks,
including, but not limited to, the failure to make the payments as provided herein;
b) Mr. K wak files a petition under any provision of federal or state bankruptcy,
insolvency, moratorium or similar law, or such petition is filed against him;
646216.3
5
c) Mr. Kwak misrepresents any warranty or representation given hereunder or
misrepresents any material fact hereunder.
9. Forbearance by Bank. In consideration of this Agreement, the Bank hereby agrees
that during the term of forbearance it shall take no action to collect its collateral or to enforce the
within obligations or the underlying obligations so as to provide Mr. Kwak with an opportunity to
resolve his financial difficulties as set forth herein. Said forbearance is conditioned upon Mr. Kwak's
complying with this Agreement.
10. Binding Effect. This Agreement shall be binding upon the parties hereto, their
executors, administrators, heirs, successors and assigns. Mr. Kwak shall not have the right to assign
his rights hereunder without prior written consent of the Bank.
11. Inspections and Appraisals. Mr. Kwak hereby grants to the Bank the right at any time
and from time to time to conduct inspections and/or appraisals of any or all of its collateral, including
the Mortgaged Property, the Say-Ford Collateral and the Young's Food Market CollateraL
12. Governing Law and Venue. This Agreement shall be governed, construed and
enforced in accordance with the laws of the Commonwealth of Pennsylvania. Any and all disputes
hereunder shall be commenced and resolved in any of the courts of common pleas of Penn sylvania.
13. No Waiver or Novation. Nothing herein contained and no actions taken by the Bank
herein or in connection herewith shall constitute or be deemed to be a waiver or release of any default
by Mr. Kwak of his obligations, or of the security interests, rights, remedies or privileges afforded to
the Bank thereunder. Nothing herein shall constitute a waiver by the Bank of Mr. Kwak's
non-compliance with the terms of his obligations, nor shall anything contained herein constitute an
646216.3
6
agreement by the Bank to enter into any further agreements with Mr. Kwak. Neither this Agreement
nor any other documents to be executed in connection herewith is in any way intended to constitute a
novation of or a waiver of any of the underlying obligations. The Note and any and all other
agreements in writing between Mr. Kwak and the Bank shall remain in full force and effect. In the
event of any inconsistency between the terms of this Agreement and the terms of the Loan
Documents, the terms of this Agreement shall prevaiL All other terms, conditions and covenants set
forth in the Loan Documents, except as expressly modified herein, remain unchanged and in full force
and effect.
14. Extension. Nothing herein shall be construed as a representation or warranty by the
Bank that the forbearance term granted herein shall be extended or renewed and the parties hereto
confirm and acknowledge that no further extensions or renewals have been promised.
15. Time. Time is of the essence of each provision of this Agreement.
16. Construction. The parties acknowledge that each party and each party's counsel have
reviewed and revised this Agreement and that the normal rule of construction to the effect that any
ambiguities are to be resolved against the drafting party will not be employed in the interpretation of
this Agreement or any amendments or schedules hereto.
17. Release. Mr. Kwak hereby waives and releases the Bank, its officers, employees,
agents, representatives, attorneys and directors and their execntors, administrators, heirs, successors
and assigns from any and all claims, causes of action, set-offs, recoupments, actions, debts, damages,
liabilities and expenses which they may have against the Bank in connection with the Note, any
6462]6.3
7
action or inaction of the Bank or in any way related to the Loan Documents and/or the negotiation of
this Agreement.
18. Voluntary Agreement. Mr. Kwak represents and warrants to the Bank that (i) he is
represented by legal counsel of his choice in regard to the transaction provided for in this Agreement
and that such counsel has explained to him the significance of the terms, and the full meaning and
effect of this Agreement; (ii) he is fully aware and clearly understand all of the terms and provisions
contained in this Agreement; (iii) he has voluntarily, with full knowledge and without coercion or
distress of any kind, entered into this Agreement and the documents executed in connection with this
Agreement; (iv) he is not relying on any representations either written or oral, express or implied,
made to them by the Bank other than as set forth in this Agreement; and (v) the consideration
received by Mr. Kwak to enter into this Agreement and the arrangement contemplated by this
Agreement is fair, reasonable, equitable, actual and adequate.
19. Modification. This Agreement may not be modified except by a writing executed by
the parties hereto with the same formality as this Agreement.
20. Gender and Number. Unless otherwise specified, the masculine shall include the
feminine and the neuter and vice versa. The singular.shall includethe,plural and vice versa.
21. Additional Instruments. Each party shall, at the request of the other party, execute,
acknowledge and deliver whatever additional instruments may be required in order to accomplish the
intent of this Agreement.
22. Invalidity. In the event anyone or more of the provisions contained in this
Agreement shall for any reason be held to be invalid, illegal or unenforceable in any respect, such
646216.3
8
invalidity, illegality or unenforceability shall not affect any of the provisions ofthis Agreement, and
this Agreement shall be construed as if such invalid, illegal or unenforceable provisions had never
been contained herein.
23. Counterparts. This Agreement may be executed in identical counterparts which
together shall constitute a single agreement.
24. Complete Agreement. This is the complete agreement and there is no written or oral
understanding or agreement directly or indirectly connected with this Agreement that is not
specifically incorporated herein by reference.
25. Waiver of Jury Trial. Mr. Kwak and the Bank irrevocably, as an independent
covenant, waive jury trial and the rights thereto in any action or proceeding between Mr. Kwak
and the Bank.
IN WITNESS WHEREOF, Mr. Kwak and the Bank, intcndingto be legally bound hereby,
have executed this Agreement the day and year first above written.
~(,c.~.I..-.
('~--'. ..1
\ /'
MELLON BANK. N.A., now by assignment,
CITIZENS B OF PENNSYLVANIA
ATTEST:
BY:
646216,3
9
COMMONWEALTH OF PENNSYLVANIA
SS:
COUNTY OF LUZERNE
~.
ON THIS, the .l..2..-. day of
f1 Pre, I
, 2005, before me, the undersigned officer,
personally appeared Joseph E. Sweeney, who acknowledged himselfto be Assistant Vice President of
Citizens Bank of Pennsylvania, and that he, being authorized to do so, executed the foregoing
instrument for the pmposes herein contained by signing the name of Citizens Bank of Pennsylvani[l.,
by himself, as Assistant Vice President.
IN WITNESS WHEREOF, I have hereunto set my hand and notarial seal.
COMMONWEALTH OF PENNSYLVANIA
Notarial Seal
Jane A Muscavage. Notary Public
City Of Wilkes-Barre. Luzeme Coonty
My Commission Expires Nov. 3. 2007
Member. Pennsylvania Association Of Notaries
C2 ~
J() . ,)'--
N~~IC ~
COMMONWEALTH OF PENNSYLVANIA
COUNTY OF
SS:
ON THIS, the ~ day of ---B.pr I \
, 2005, before me, the undersigned officer,
personally appeared Sang Ho Kwak, known to be (or satisfactorily proven) to be the person whose
name is subscribed to the within instrument, and acknowledged that he executed the same for the
pmpose therein contained.
IN WITNESS WHEREOF, I have hereunto set my hand and notarial seal.
~'
~\.-\ y/\
NOTARYPUBLI
646216.3
COMMONWEALTH OF PENNSYLVANIA
NoIariaI Seal
Rhonda Heffelfinger, NoIaJy Public
City Of HaniSbUlll, Dauphin CountJ
My Commission Expires Apr. 22, 2008
Member, PennsylvanIa Association Of Notaries
SCHEDULE A
Savford Market Secured Equipment
Sharp ER-A330 Cash Register
TEL SL 9000
Casio PCRT 2000 Cash Register
Mega Refrigerator Unit
Panasonic KX-FP121 Fax Machine
Pre Fab 10 x 12 Walk In Cooler
Bunn Coffee Maker VPS Series
Hobart Meat Tenderizer
Power Cooler 2 Door
Bird Meat Cutter
Beverage Air Deli Cooler
Heat Sealer 20 Inch
True Deli Bar Refrigerator
Berkel Meat Slicer 3340
Hussman Meat Cooler Displays (3)
Berkel Meat Slicer 919/1
Tafco Pre Fab Walk In Cooler 12 Door
Eastern Mfg. Checkout Computer
System
(1) Master Computer
(2) Check Out Stations
Tafco Pre Fab Walk In Freezer 12 Door
Whirlpool Range
YounQ's Market (Newville. PA) Secured Equipment
Powers Sliding Cooler with butcher top cover, Ser. No. B947-556
Migdi Deli Case with Bottom Refrigerator, Ser. No. 894004
21/2 x 3' Tappan Chest Freezer
Sturdi-Bilt up Draft and Exhaust Fan
30" Comstock-Castle Stove, Ser. No. 7MM420
Castle Pizza 2-Shelf Oven, Ser. No. 6MM128
Westy Cash Register Sanyo, Ser. No. 63404445
Slicer Model 919-1, Ser. No. 9365-1151-09830
c--
'--.. --'" /
___~_,' -' ""c...,) /7~'-d' /;~~<.
SANG HO KW AK
/1
':/
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~~~ / ..~
'~")
L---
Sworn to and subscribed before me
this __~Jr. day of -Apr i \
,2005.
COMMONWEALTH OF PENNSY~VANIA
Notarial Seal
Ahonda Helfellinger, NotaJy Public
CiIy 01 Harrisburg, Dauphin County
MI Commission Expires Apr. 22, 2008
Member, PennsylvanIa Assocla.tlon Of Notaries
42tv()'('~,~ \~VV"f;"
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.
,IIi/
677409.1
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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 assigrrment
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
1307 N. 3'd Street
Harrisburg, P A 171 02,
Defendants
NO. OS- -tj'-{),;/ c.~~i.-L~~
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:
On even date herewith, the plaintiff is filing a complaint in replevin against the defendants. (A true
and correct copy of plaintiffs complaint in replevin is attached hereto pursuant to Pa. R.C.P. No. 107s.l(b),
incorporated herein by reference pursuant to Pa. R.C.P. No. IOl9(g) and marked as Exhibit "1.")
67741 L1
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:
~--s
600 Third Avenue
Kingston, P A 18704
Telephone (570) 287-3000
Facsimile (570) 287-8005
Dated: A--1./j"; 2<.. , 2005
James T. Shoemaker, Esquire
ill No.: 63871
Counsel for the plaintiff, Mellon Bank, N.A., now by
assignment, Citizens Bank of Pennsylvania
677411.1
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 information and
belief. I understand that this verification is made subject to the penalties of 18 Pa.C.S.A. S 4904 relating
to unsworn falsification to authorities.
A
6774]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 PENNSYL VANIA
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 HWA KWAK
RD#3, Box 672
Newville, PA 17241,
Defendants
NO.
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:
I. The Bank is a Pennsylvania state chartered bank conducting business in the Commonwealth of
Permsylvania, having an office located at 8 West Market Street, Wilkes-Barre, PA 1871 ]-0101.
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.
677402.1
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, fixtUIes,
inventory, accounts and contract rights (collectively, "Young's 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 of the Note by failing to make monthly payments of
principal and interest due under the Note.
8. As a result ofMr. Kwak's default under the terms of the Note, the Bak and Mr. Kwak
entered into a forbearance agreement dated April 12, 2005 (the "Forbearance Agreement"), upon the
terms and conditions more particularly set forth therein. (A true and correct copy of the Forbearance
Agreement is attached hereto as Exhibit "c" and incorporated herein by reference.)
9. Mr. Kwak defaulted under the terms ofthe Forbearance Agreement by failing to make
payments of interest due under the Forbearance Agreement.
677402.\
2
10. The fair market value ofthe Young's Collateral is unknown, but is believed to be less
than the amount due and owing the Bank by the Kwaks under the Note.
11. The Bank believes and therefore avers that Mr. Kwak has possession of the Collateral.
12. 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.
13. The balance of the Note as of August 8, 2005 was $296,891.95, consisting of principal in
the amount of$291,949.92, accrued interest in the amount of$4,706.61, and late charges in the amount
of $235.42, 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$296,891.9s, plus interest from August 8, 2005, 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,
HOURI~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, P A 18704
Telephone (570) 287-3000
Facsimil.71(570) 287-8005
Dated: ,1::h.. rIb , 2005
J
677402.1
3
$ 395,000.00
Promiso To Pay. FOR VALUE RI<X~EIVEn,and intending to be legally
\xJunJ, Undersigned, as defined tKlow, promises to pay to:
Mellon Bank, N_~,____
CBank") or its order at .
Harrisburg, Pennsylvan1a
1he sum of
Three Hundred Ninetv Five Thousand and
00/100
Dollar> ($ 395,000.00 ), :wilh interest on the
outstanding balance from the date of: this Promissory Note
("Nole") al the ralc(s) ("Contractual Ratc\,s)") and in a=rdancc
with the repayment schedute specified belqw.
Contractual Rato(s); Repayment Schodules. ;
o Interest at a rate per annum;which is %
above Bank's Prime Rate, such rate to cb;lnge from time to time
as of the effective date of each announccl1 change in such Prime
Rate shall be paid when principal paym,ents are due. Principal
sball' be paid in consecutive l\lOOthly installments of
$ each, commencing ba ,
and continuing thereafter on the l day of each month
with the balance of the indebtedness, if D91 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
tbe effective date of eaeh change in or re!Ctting of the CD Rate,
sball be paid when principal payments ar~ due. Principal sball be
paid in Consecutive m<jnthly instaJ!ments of
$ eaeh, I commencmg on
. and continuirl,g thereafter on the
day of each month willi the balance of the
indebtedness, if not sooner paid,. 4ue and payable on
,
I
o The principal balance !>e)f'Of, together with all
accrued and unpaid interest, shall be paid on ,
and interest at a rate per annum whicb is % above
Bank's Prime Rate, such rate to change (rom time to time as of
tbe effective date of each announced chaqge in sueh Prime Rate,
shall be paid on the day of eachl month commencing on
, ,
: I
o The principal balance ht' f, together with all
_a=oed and unpaid interest, sball 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
effective date of each ehange in or resetti~_of lb. e CD Rat~, sball
be paid on the day of eaeh rvnth commencmg on
. I
o In no event shall the rate charged ,'on this Note exceed
. % per annum. I
o The principal balance ht~ together with all
a=ued and unpaid interest, shall be pal on . '
and intercst at the rate of % ~ annum shall .be paid
on the day of each "T.th commenctOg on
, ' y'1L' t'
lX1 , '> ~ " Interest sball be calcu ted at the rat~ ?f
" ~n % per annum. Principal and ter~ shalt be paid to
,'7Q . consecutive month installments of
S 3.973.65 eaeh,eo'
.
~
~
"
w
~
~ /1-
~ ~
~
~
0-/ /01/1999__, and continuing thereafter on the --.!~_
d;lj' of each- mOllth \vilh the balanc--c of the indchlcdncss, if Ilol
&Xll1Cr paid, <Ioc ;:lOti payable on --.5!..!i.LOl/20~. DUling ;)ny
period that the Contractual Rate(s) is reduced by 0.25% per
;mnUrIl, ;1.<; described elsewhere in this Note, tnstatlme,nls of
principal and inlerest shall instead be in the amount of
$ j, 864 _ 70 each_ If the reduction in the Contractual
Rale(s) is no long-cr in effect, the amount of installments or
principal and interest shall retum to and be the same as the amount
of such in..<;tallmcnts prior 10 lhe reduction in the Contractual
Ratc(s),
Under>igned shall pay Bank concurrently with the execution and
delivery hereo~ or Undersigned previously bas paid Bank, an
origination fee of S 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 hereo~ sball not be refunded, and is in addition
10 any otber fees, costs or expenses whieh may be due and payable
hereunder.
Untess Undersigned has autborized 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 ~nk
receives aU payments no later than the due date shown on each bill.
o Undersigned authorizes Bank 10 take all
payments of principal and/or interest and/or other amounts due
under this Note out of Undcr.;igned's Mellon Oleck:ing Account
Number , titled in the name(s) of
t on or
after the day of each 1rioQth. Undersigned will keep a
sufficient balance in this account 10 cover the full amounts of all
required payments. At its option, Bank may terminate
Undersigned's ability to use .this se<Vice. This ~ulho~tion shall
remain in effect until revoked by Undersigned m wnting or until
the' loan evidenced by this Note is paid in full or until Bank has
tenninaled Undersigned's ability to use this service, as the case may
be. prior to maturity, while, this authorization is in effect. an~
provided that Undersigned keeps a sufficient balance in thIS
aCCOUQt to' cover -the full amOUnts of aU required payments, the
Contraelual 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 NOle is in excess of
S 10,000.00, or If Undersigned is a corporation, ipterest shall be
calculated on the basis of a 3<iO-day year and actual days elapsed. If
the original principal amount of this Note is $10,000.00, or less, and
Undersigned is not a corp:JCatioo, intC:fest shaU be calculated on the
basis of a 365.<Jay year or 366-<lay year, as the case may be, and
aelual days elapsed.
"Prime Rate" shall mean the interest rate pee annum announced
feom time to time by Bank as its Prime Rate. The Prime Rate may
be greater or less than other interest rates charged by Bank 10
othcr borrowers and is not solely based or dependent upon the
interest rate which Baok may charge any particular. borrower or
dass of borrowers.
If a single certificate of deposit is held by Bank as collaterat security
for the indebtedness evidenced by this Note, as more ~lIy
described in the Assignment of Deposil Account express~y refemng
to this Note, ~CD Rate" sball mea.n,.,1he interest rate paId by Bank
on sueh eertili~e of deposil (the "Catilicate'), Said CD Rate to be
.:. ,,).' rage lof5
y: '
./
reset by Bank al each renewal of the Ccrm.catc. If more than one
certificate of deposil is held by Bank as collateral security for lhe
indebtedness evidenced by this Notc, as more fully described in the
Assignmcnl(s) of Deposit Account expressly referring to this Note,
"CD Rate" shal1 mean the highest of the interest f<lles paid hy Bank
on such ccrtifiGllCS of deposit (the "Certificates"), said CD IblC 10
be reset at each renewal of each Certificate.
Lato Chargo. If any payment (including without limitation any
regularly scheduled payment, baUoon payment or final payment) is
not paid within 15 calendar days after it is due, Undersigned will pay
a !;J(C charge of the greater of $25.00, or three ~rccnt (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 lo the Contractual Ratc{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 Rat6(s). Upon the occurrence. of
any Event of Default (as defined in this NOle), at Bank's option,
interest shall accrue at a rate equal to two percent (2%) per annum
above the Contractual Ratc{s) untillhe earlier of the dale that such
Evenl of Default has been cured or until and induding the dale of
maturity hereof.
After maturity, whether by acceleration or otherwise, interest shall
accrue at a rale equal to two percent (2%) per annum above the
Contractual Ratc{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 Ratc{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
sball accrue at a rate equal to two percent (2%) per annum above
the Contractual Ralc{s).
Books and Records; Time of Essence. So long as Bank is the
holder hereof; Bank's books and records shall be presumed, cxcept
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 aod 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 oftms 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 aU costs and expenses
incurred by Bank in the collection or enforcement of this Note or the
'prolection of any collateral securing this Note (induding withoUl
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 up:::m,
and right of setoff against, aU 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~ induding any
proceeds or returned or unearned premiums of insurance, and the
pr<J<::ttds of all the foregoing property. Other property, real or
personal., may secure this Note, as set focth 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.
Undecsigned furthec agrees that Undersigned will execute. or will
cause to be executed, upon demand by Bank:: any financing
statements or othec documents, induding, without limitation,
additional Assignments of Deposit A<xount, wbicIt !lank may deem
neoessaty or desirable 10 evidence, perfect or maintain perfection of
the security interests created in tbe O:rtificate(s) and any renewals,
replacemenlS and substitutions thereof.
Additional Terms and Conditions
L Coven8Jlts. Undersigned COYCD3Ilts and agrees that until all
indebtedncs, evidenced hereby has been paid in full, Undersigned
$hall: (a) maintain at all times a positive tangible net worth; (b) (1)
h:we all Environmental Permits necessary for the conduct of e8ch
or Undcr.siSllcd's busincs-'){:s ;;md operations, (2) conduct cach oj
Undersigned's businesses and operations in material compliance
with all applicable Environmental Laws and Environmental
Permits, (3) not permit 10 exist any event or condition that requires
or is likely to require Undersigned under any Environmental Law
to payor expend funds by way of fines, judgments, damages,
cleanup, remediation or the lilce in an aggregme amount, the
payment of which could reasonably be expected to interfere
substantially with nonnal operations of Undersigned or materially
advc=1y affect 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 U ndersigoed or any of its subsidiaries or affiliates
under any Environmental Law to payor expend funds by way of
fines, judgments. damages, deaning, remediation or the like. and
(5) provide al Undersigned's cost, upon request by Bank,
certifications, documentation, copies of pleadings and other
information regarding the above, aU in fonn and content
satisfactory to Bank; (e) conduct each of Undersigned's businesses
and operations in material compliance with all federal, state or local
laws, statutes, regulations, rules, ordinances, oourt 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 cxeetJOOn heren~ (e) promptly notify Bank
in writing of any change in Undersigned's residence or Olief
ExeetJdvc Office; (f) purchase and maintain policies of insurance
(mcluding fiood insurance) 10 protect against such risks and
casualties, and in snch amounts, as s\iaIl be required by Bank
and/or applicable law, wbicIt policies shall (1) be in fOnD and
substance satisfactory to Bank, (2) at Banle'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 ptOpcr 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 (inducting without
limitation annual and periodic balance sheets and income
statements, personal financial statements, federal income tax:
returns, inventory reports (induding 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 U ndersigocd'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 requcst; (h) provide additional collateral at sum times
and having such value as Bank may request, if Bank sbaU have
reasonable grounds for believing that the value of the collateral
securing the indebtedness evidenced by this Note has become
insufficient 10 iCCtIrc said indebIedncss; (i) pay, upon demand by
Bank., (1) all costs and fees pertaining to the filing of any financing,
continuation or tennination statements, mortgages, satisfaction
pieces, judgments and any other type of document which Bank
deems necessary or desirable to be med with regard to security
interests whid1 secure the' indebtedness evidenced hereby,
regardless pf. whether such se..irity interests were granted by
Undersigncll" and (2) all costs ana~ incurred by Bank in
. '.).: ., Page 20f5
wnnection with any collateral securing this Note (induding wilhoul
lim;tation all advances made by Bank for taxes, levies, insurancc.
repairs to or maintenance of said collateral, appraisal or valuation
of s-'1.id coll~ltcral, and determination of flood ha7..ard), rcgardlcs..<; of
whether such coHatcral is owned by Undersigned; and (D pay, upon
demand by Bank, all amounts incurred by Bank in connection with
.Ill)' action or proceeding takcn or commenced by Bank to enforce
or collcct this Note, including altorncy's fees equal to the Icsscr 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 Dofault. 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; (h) the breach by any Obligor (defmed 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 teons 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; (I) 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 Banlcruptcy Reform Act of 1978, as amended, by or
against any Obligor; (g) default under the teons of any tease 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 Se<vice 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 conlrol of or transfer of any interest in any Obligor
(other than an Ohligor who is an individual); (I) a determination by
Bank, which determination shall be condusive 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 tbe indebtedness evidenced
by this Note by reason of the death of the insured or otherwisC; 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. Accel6ration; R6m6dias. Upon the occurrence of any Event of
Default: (a) all amounts due under this Note, induding the unpaid
halance of principal and interest hereof, shall become immediately
due and payable at the option of Bank., without any demand or
notice whatsoever. and (b) Dank may immediately and without
demand exercise any of its rights and remedles granted herein,
under applicable law, or which it may otherwise have, againsl
Undersigned or otherwise. Notwithstanding any provision to the
contrary contained herein, upon the occurrence of an Event of
Default as dcscrilxid In Section 2(1) hereof; aU amounts due under
this Note, including w,,,.Jut limitation the unpaid balance of principal
and interest hercof, shall become immediately due and payable,
without any demand, notice or further action by Bank whatsoever,
and an action therefor shall immediately accruc.
4. Bank's Rigllls. Undersigncd herehy authorizes Bank, and B;lnk
shall have the cOlltinuing righi, al its sole oplion and discretion, to: (<I)
do anything which Undersigned is required but fails to do, and in
pmticular Bank maYI if Undersigned fails to do so, ohtain and p..,yany
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 10 any or all of the Undersigned individually or jointly, or
to such other person(s) as any of lbe 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 BOfTOW. 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 islare authorized
(i) to incur indebledness 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 (ill)
to assign and pledge as collateral secUrity for any such indebtedness
or obtigatiODS. 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.
"
c
power of any of the partners to repr=;;t said fum, whether by
expiration of the partnership agreement, by death or retirement
of any partner, or the accession of onc or more new partners, or
otherwise, and notwithstanding any other notice thereof Dank
may receive, this authority shall continue to Ix binding ufXm each
of the Undersigned il1dividu~llly and ufXm their legal
representativC5, and upon Undersigned and its sua::cssors, until
Dank has received notice in writing to the contrary signed byone
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 (0 nank.'s receipt of such
notice.), and (5) nattling 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; Misce/faneous Provisions. (a) Unc.k:cigned waives
(except where requested hereby) notice of actioo taken by Banle;
and hereby ratifies and confinns whatever Bant 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 aceount
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
sball not in any way affect the meaning- or construction of any
provision hereoL (d) The rights and privileges of Bant contained
in this Note shall inure to the benefit of its succxssorsand assigns,
and the duties of Undersigned shall bind aU 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 checlc which may be payable
to Undersigned in order to coUect 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 Bant and each
holder hereof as attorney-in-fact is irrevocable and is coupled
with an interest. (g) Undersigned assigns to Bant aU 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 othecwisc 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 petroIenm 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 to
"hazardous substanc.cs," "hazardous materials," "toxic
substances," "h~lz,.ardous air pollutanls," "toxic JXlllutants,"
"pollution," or (erms of similar meaning, as those terms are
used in any Environmental Law. (k) "Olid Executive Officc"
means the place from which the main part of the business
operations of an entity is managed. (I) "Undersigned" refers
individually and collectivcly to all makers of this Nole
including, in the case of any partnership. all general partners or
such partnership individually and coUectiveIy. 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 Note, each geoeraI partner shall be
bound hereby both in such general partuer's individual and
partnership capacities.
7. Direction to Pay Proceeds.Undersigned hereby authorizes and
directs Bank to pay the proceeds of this Note by: . .
Vi crediting Aceount Number OCO-f.(;z.1-1 'I<fI. flf.p II 2.6 j-
f\ in the name of /
5fltJ611D ~OrJ rfWfr K'JIt(,-
in the amount of $' . tV
I f1, 529 00 t;~"ihn'j ITIt/!O
''{IJpaying (llJjm t1 $ Ui,' ' 101-57:;--1'2 &<jJ ,
j'\ AlnJL "'.31.305.3 Juq. . 2-1 2.l
the amount of S .
~ying DcrJU:-;CflL! 9/;/!9'1J"f{
the amount of S
8. Affidavit of Business Loan.(lbis Affidavit is not applicable if
Undersigned is a corporation.) Undersigned, being duly
authorized, depose(s) and say(s) under penatty of petjuty that
Undersigned: .
(a) WAre engaged in business aslXl Owner(s), 0 General
Partner(s) of: (name and nature of business)
YOUNG'S FOOD MARKET AND .
SAY-FOP,? SUPERMARKET '/{. y"-
FOOD MARKET
(b) Hereby make(s) appllcation 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 len blank)
..~. ..;,
.~V Page40fS
.:~'.
- -"
9, Confession of Judgment. UNDERSIGNED HEREfiY
EMPOWERS TIm PROTIfONOTARY OR ANY
ATTORNEY OF ANY COURT OF RECXlRD ro APPEAR
FOR UNDERSIGNED AND TO CONFESS JUDGMENT
AS OFTEN AS NECESSARY AGA[NST UNDERSrGNED
[N FAYOR OF 11[E HOLDER HEREOF, REGARDLESS
OF WHETHER ANY EYENT OF DEFAULT liAS
OCCURRED, AT ANY 11ME AND /IS OF ANY TERM.
FOR ruE OUTSTANDING PRINCIPAL BALANCE
HEREOF PLUS INTEREST DUE UNDER 1111' TERMS
HEREOF AND ALL OTIlER AMOUNTS DUE
HEREUNDER, TOGElliER WITH CXlSTS OF LEGAL
PROCEEDINGS AND AN A1TORNEY'S COMMISSION
EQUAL TO -l1lE LESSER OF (A) 20% OF THE
OUTSTANDING PRINCIPAL BALANCE AND
INTEREST 'Il [FN DUE HEREUNDER OR ,,00 00
Wl/ICIlEVEH IS GHEATEH, on (B) 'mE MAXIMUM
AMOUNT PERMITI'ED BY tAW, wmf RELEASE OF
ALL ERRORS, UNDERSIGNED WAIVES ALL LAWS
EXEMPT[NG REAL OR PERSONAL PROPERTY
FROM EXECUTION,
By signing this Note, Undersigned agrees to all ternts 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 AfTIdavIt of Business Loan (If completed) set forth In
Section 8 of this Note.
Witness the due execution hereof under seal.
x
witness:
:"..~~-
~
Mellon Bank, NA
Mellon Bank (DE) National Association
CL-(5(J ""'.(10,%) LC. 9/% ill 9/%
0Il5 P 166-64.3823 I d4S43 (01)
052799,1605
,
's FOOD MARKET AND
tJPE-RMAR.K:BT 5"4-Y-F-~'-2d _~/?FD"1,.i<0Io77
672 B ERVILLE ROAD //
NEWVILLE, PA 17241 )'jL. )K..
Individual:
~UN~AK iJJ11. (~~
672 LOSERVILLE ROAD
NEWVILLE, PA 17241
(Seal)
.'-~~:""
Page S ofS
,)" '
fjjiillltilfIJiiI11iil'l""%W
-
For value received, and intending to be legally bound, in
consideration of a loan or other credit accommodation in the
amount of
Three Hundred Ninety Five Thousand and
00/100
Dollars ($ 395,000.00 ) made by
Mellon Bank. N.A.
~Bank"~to
~;~~ ~:~V~~rrD
SAY-F. SUPERMARKET V
("Borrower(s)"), said obligation evidenced by a
PROMISSORY NOTE
dated
Undersigned,
follows:
- /':'--'?-I?' '/7 . (the "Note")
intending to be legally bound, hereby agrees as
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.)
lXI ~ 'f.k;..) all equipment, wherever located, including
ma m ry, motor vehicles, furniture and fixtures;
lXI ~~ )t:f;.1I inventory (whether hetd for sale or lease or to
be is 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;
lXI ~ Y &&all accounts, contract rights, general intangibles,
chat! I 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 (I) all property or rights described below under the
caption "Description of CollateraL"
Description or CoUateral (Give a sufficiently detailed description
to identify each item).
.
~
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"
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~
w
!;(
~
~
~
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v-1
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 prcx1ucts
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 deJXlSit
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; aM (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 undl:( t~e Note, and any other indebtedness, liability or
obligation of Borrower( s) or of Undersigned to Bank, now existing or
Page 1 of4
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 followi.ng representations and warranties which
shall be true and correct on the dale of Ihis Agreemenl and shall
continue to be true and correct at the time of any borrowing under
any line of credit with Bank and unlil Ihe Ohligations secured by
this Agreement shall have been paid in full: (a) each account: (1)
represents an amount actually owing 10 Undersigned by the
account debtor (less discounts allowed for prompl payment); (2) is
valid and enforceable according to its terms without further
performance of any lcind; (3) is not evidenced by any instrument or
chattel paper unless the original of such inslrument 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
Banle; and (b) the locations of all of Undersigned's places of
business are as stated below, and the inventory and records of the
acrounts are k:ept at the places indicated below.
9. AddiJional Cove1U1J1ls. 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
acrount is or becomes entitled or eligible for discount for prompt
payment; (2) any acrount dehtor has or may have any defense to
payment of, or right of setoff, counterclaim, or recoupment against
any acrount; (3) any acrount 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 hook:s
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, induding
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, salesJ 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 tbe accounts on behalf of
Bank until such time as Bank exercises its right to directly collect
the accounts, and upon notice from Bank, deliver aU proceeds of
accounts to Bank forthwith upon receipt, in the anginal form in
whieh received; (e) immediately upon Bank:'s request, open a cash
collateral acrount ("Cash Collateral account") at Bank and deposit
therein all cash proceeds of collections on the accounts; (t)
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 tbe amount
loaned against any account so assigned to the Bank if the contract
with the acrount 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; (b) immediately deliver to Bank: all instruments, documents or
chauel paper representing any of the Collateral and immediately
assign of record to Bank any judgmatt representing any account
constituting Collateral; and (i) immediately upon Bank's request,
marlc 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 sel
forth elsewhere in this Agreement, Undersigned hereby authorizes
Bank, and Bank shall have the continuing rights al 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 tak:e any other action pun;uanl to ils
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 deposll account of Undersigned any Item of payment credited
to the Cash Collateral acrount which is sub6equently dishonored; ( c)
at any reasonable time, through its authorized agents and employees,
inspect, audit, and verify the accounts and the inventory, review
Undersigned's hook:s and records, and ropy or mak:e excerpts from
any document; and (d) verify accounts with debtors in the name of
Undersigned, Banle, or Bank's designee.
11. MLScellaneousProvisions. (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 sueh righl. (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 il. TIle 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 tbis Agreement shall inure to the
benelil 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 bereof, shall be effective or enforceable unless set forth in
writing and signed by an officer of Ban\<. (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
sueh 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. (t)
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 eheck: 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. (8) Undersigned shall bear the
risk of loss of, damage to, or destruction of the Collateral, and
Undersigned hereby releases Bank: from all claims for lass or damage
to the Collateral caused by any act or omission on the part of Bank,
except for willfut misconduct. (h) The prothp' 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\'f!t may be filed as a financing statement.
12. Additional Power of Attorney. In addition to the powers of
attorney gr:l!lted to Bank by Undersigned elsewhere in this
Agreement, UlIdersigned hereby appoints Banlc and its officers,
Page 3 of4
~
10-20-'04 11:22 FRQM-
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'l'ARTlES
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. _ '~AK.' S"~.G t!o
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I>c.btool' ruunc (lAd name fln~ fi indi'lidu-,l) and mailin!; add~:
)'DlJI{Ci'S FOCO MARKET
RO 3 EO~ 3t6" c..,"'\.-"
NEWell", PA 17241
Deb1ur fUl,lI:SC (lut nAm.e rll'lIt If individual) and mniliJlg a.ddrr:::aa:
8oelJftd.Putt(I~) I1AIDc(l) (Wt umefmtiC.ind.MdunI.):tnd
addreu lor ~ty Intet'l:lt inrormatlon:
Helton Bank, N_~.
1JUlIfnGoo lI'a.~tng Wan. C<<lte.r-
o.-..t "eUon flank: Center! RnI. 151-W.7Q
PfttsbYr~. PA 15258-0001
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Aafp<<(.) of &c1a-od p~ ~I) (J.W na:me Cltst Ie indMdu.n)
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SECURED PARTYSICNA=(S)
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peneq .1CCI1dl)'Ulkrdt.Jn c:oIlar:cn1 (checlt"ppllCllble bo;t(<<))-
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INSTRtJtENTS, NaTES, DRAf1$, LfTTEI.S,QR APf{ICES 0' C~DIT~
RECElVABlEs, orHER .AMtXJIITS anNG To DE8TOI.. FIXTURES.
FURNlnmE AJlD EQlJIPMEJIT, AlL ~COlJcrs A1W..,CASH .um
NO~-r;.<,S1f PROCa'll$ (1IlCUDIOG I"SURA"a; P<lt/CIE$ "'0
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Detail report item #1 printed by: DOTTIE HOFFMAN on 2/22/01
:===============================~==============================================
PENNSYLVANIA UCC DETAIL REPORT
L1ATA COVEIZJ\GE TIIEO\JGIl
FJ;:n Il:l, :21](1 I
:;U\W:II COMI'LE'l')':)!
FI;:1l ::'2, 2C1CI]
II<: : :, '3 f\t~ ( c: 'J' )
~-----==~-==============-~===~=====~========~=~=~=~~=====~~~========-
-------- ____.
------------ -.--
riling Location:
SECRETARY OF STATE OF PENNSYLVANIA
JOB NORTH OFFTr:F; RlJT WING
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.
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FORBEARANCE AGREEMENT
This forbearance agreement ("Agreement") is made this ~ day of Ar P.I I , 2005 by
and between Sang Ho Kwak, individually and d/b/a Say-Ford Supermarket aIkIa Sayford Supermarket
(hereinafter, Say-Ford Supermarket and Sayford Supermarket will be referred to as "Say-Ford
Supermarket") and d/b/a Young's Food Market ("Mr. Kwak") and Mellon Bank, N.A., now by
assignment, Citizens Bank of Pennsylvania (the "Bank'').
WITNE S SETH:
WHEREAS, on or about May 28,1999, the Bank made a loan to Mr. Kwak and Yon Hwa
Kwak ("Mrs. Kwak") Gointly, the "Kwaks'') in the amount of $395,000.00 (the "Loan");
WHEREAS, the Loan is evidenced by a note and security agreement dated May 28, 1999 (the
"Note'');
WHEREAS, in order to induce partially the Bank to make the Loan, the K waks executed and
delivered to the Bank a mortgage (the "Mortgage") on their improved real estate situate in the
Township ofFrankford, Cumberland County, Pennsylvania, as more particularly described in
Cumberland County Mortgage Book 1552, pages431 et seq. (the "Mortgaged Property");
WHEREAS, in order to induce partially the Bank to make the Loan, Mr. K wak, individually
and d/b/a Say-Ford Supermarket granted the Bank a security interest in, among other things, his
equipment, machinery, motor vehicles, furniture, fixtures, inventory, accounts and contract rights
(collectively, the "Say-Ford Collateral"), as evidenced by a security agreement (the "Say-Ford
646216.3
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Security Agreement") and as perfected by certain UCC-l financing statements (the "Say-Ford UCC-l
Financing Statements");
WHEREAS, in order to induce partially the Bank to make the Loan, Mr. Kwak, individually
and d/b/a Young's Food Market granted the Bank a security interest in, among other things, his
equipment, machinery, motor vehicles, furniture, fixtures, inventory, accounts and contract rights
(collectively, the "Young's Food Market Collateral"), as evidenced by a security agreement (the
"Young's Food Market Security Agreement") and as perfected by certain UCC-I financing
statements (the "Young's Food Market UCC-l Financing Statements");
WHEREAS, Mrs. Kwak is deceased;
WHEREAS, Mr. Kwak defaulted under the terms of the Note for failing to make payments of
principal and interest when due;
WHEREAS, as a result of Mr. Kwak's defaulting under the Note, on or about December 2,
2004, the Bank confessed judgment against Mr. Kwak in the CoUIt of Common Pleas of Cumberland
County at No. 04-6040 in the amount of $384,294.24, plus interest and costs (the "Confessed
Judgment");
WHEREAS, Mr. Kwak has informed the Bank of his inability to pay the Note, in accordance
with its terms, and has requested the Bank to enter into this Agreement relative to this one obligation
of the Kwaks to the Bank;
WHEREAS, Mr. Kwak and the Bank wish to enter into this Agreement without the Bank's
waiving any of its rights and remedies under the subject indebtedness, but in an effort to permit Mr.
6462\6.3
2
Kwak the opportunity to resolve his financial difficulties and to arrange for the repayment of his
obligations to the Bank under the Note;
WHEREAS, in consideration of said forbearance, the parties hereto wish to enter into this
Agreement outlining the terms of the forbearance.
NOW, THEREFORE, intending to be legally bound hereby, and in consideration of the
mutual terms and conditions hereinafter set forth, the receipt and adequacy of such consideration
being hereby acknowledged, the parties hereto mutually agree as follows;
1. Confirmation of Mr. Kwak's Indebtedness. Mr. Kwak hereby confirms and
acknowledges that he is justly and truly indebted to the Bank under the Note, without any setoff or
defenses thereto. There is due to the Bank under the Note as of March 23, 2005 the amount of
$298,840.40, consisting of principal in the amount of $297,289.47 and interest in the amount of
$1,550.93, accruing at the approximate per diem rate of$70.19. It is expressly understood that the
foregoing statement of indebtedness does not include accrued interest from March 14,2005,
attorneys' fees and costs, or other expenses which may be incurred by the Bank if the Bank fmds it
necessary to exercise its rights or remedies under the Loan Documents (as hereinafter defined). It is
further expressly understood that the aforesaid amounts shall be included in the indebtedness due to
the Bank from Mr. Kwak.
2. Confirmation o/Loan Documents. Mr. Kwak hereby acknowledges and agrees that
the information contained in the above-referenced recitals is true, accurate and complete, and further
ratifies, confirms and acknowledges that all loan documents (the Note, the Mortgage, the Say-Ford
Security Agreement, the Young's Food Market Security Agreement, the Say-Ford Financing
646216.3
3
Statements, the Young's Food Market Financing Statements, af!d any and all addenda or supplements
thereto, af!d other related documents executed by the K waks, or either of them, and delivered to the
Bank (hereinafter collectively referred to as the "Loan Documents")) concerning the indebtedness as
referenced hereinabove af!d the Confessed Judgment are valid, binding and in full force and effect as
of the date hereof, and that the Kwaks have no defense, setoff, counterclaim or challenge against the
payment of any and all sums owing under the terms of the Loaf! Documents or the enforcement or
validity of any of the terms thereof
3. Re-affirmation of Certain Collateral. Mr. Kwak hereby confirms and re-affirms that
the equipment listed on Schedule A hereto is part of the Say-Ford Collateral and/or the Young's Food
Market Collateral and is subject to a perfected, first lien security interest in favor of the Bank. Mr.
Kwak further agrees not to move any or all of the equipment set forth on Schedule A from the
location set forth on Schedule A without first obtaining the express, written consent of the Bank,
which consent may not be umeasonably withheld. Mr. Kwak also agrees not to sell any of the
equipment set forth on Schedule A without first obtaining the express, written consent of the Bank,
which consent may be withheld for af!Y reason.
4. Payment of Indebtedness. On or about December 29, 2004, Mr. Kwak paid the Bank
$30,000.00, for all past due payments, late charges, attorneys' fees and costs due under the Note and
in consideration for the Bank's agreeing to enter into this Agreement. On or before April 1 ,2005,
Mr. Kwak shall pay the Bank a principal and interest payment of$3,923.65. On or before May 1,
2005, Mr. Kwak shall pay the Bank a principal and interest payment of$3,923.65. On or before June
1,2005, Mr. Kwak shall pay the Bank a principal and interest payment of$3,923.6s. On or before
646216.3
4
July 1, 2005, Mr. Kwak shall pay the Bank a principal and interest payment of$3,923.6s. On or
before August 1,2005, Mr. Kwak shall pay the Bank a principal and interest payment of$3,923.65.
On or before September 1,2005, Mr. Kwak shall pay the Bank a principal and interest payment of
$3,923.65. On or before October 1, 2005, Mr. Kwak shall pay the Bank a balloon payment of all
principal, interest, late charges, attorneys' fees and costs, if any, then due under the Note.
5. Forbearance Term. The Bank hereby agrees to forbear from exercising the rights and
remedies available to it as a result ofthe defaults which have occurred prior to the date hereof until
the earlier of October 1, 2005 or an Event of Default (as hereinafter defined).
6. Interest. Interest will continue to accrue on the outstanding principal balance at the
contractual rate set forth in the Note.
7. Financial Statements. During the term ofthis Agreement, Mr. Kwak shall, upon
request, provide any and all financial information the Bank may so request from time to time,
including, but not limited to, a copy of his most recently filed federal income tax returns and current
fully-executed financial statements.
8. Events of DefaulL The occurrence of anyone or more of the following is an Event of
Default hereunder:
a) Mr. Kwak fails to observe or perform each and every provision of this Agreement, the
Note, and any other Joan documentation relative to the obligations of the Kwaks,
including, but not limited to, the failure to make the payments as provided herein;
b) Mr. Kwak files a petition under any provision of federal or state bankruptcy,
insolvency, moratorium or similar law, or such petition is filed against him;
646216.3
5
c) Mr. K wak misrepresents any warranty or representation given hereunder or
misrepresents any material fact hereunder.
9. Forbearance by Bank. In consideration of this Agreement, the Bank hereby agrees
that during the term of forbearance it shall take no action to collect its collateral or to enforce the
within obligations or the underlying obligations so as to provide Mr. Kwak with an opportunity to
resolve his financial difficulties as set forth herein. Said forbearance is conditioned upon Mr. Kwak's
complying with this Agreement.
10. Binding Effect. This Agreement shall be binding upon the parties hereto, their
executors, administrators, heirs, successors and assigns. Mr. Kwak shall not have the right to assign
his rights hereunder without prior written consent of the Bank.
11. Inspections and Appraisals. Mr. K wak hereby grants to the Bank the right at any time
and from time to time to conduct inspections and/or appraisals of any or all of its collateral, including
the Mortgaged Property, the Say-Ford Collateral and the Young's Food Market CollateraL
12. Goveming Law and Venue. This Agreement shall be governed, construed and
enforced in accordance with the laws of the Commonwealth of Pennsylvania. Any and all disputes
. hereunder shall be commenced and resolved in any of the courts of common pleas of Pennsylvania.
13. No Waiver or Novation. Nothing herein contained and no actions taken by the Bank
herein or in connection herewith shall constitute or be deemed to be a waiver or release of any default
by Mr. K wak of his obligations, or of the security interests, rights, remedies or privileges afforded to
the Bank thereunder. Nothing herein shall constitute a waiver by the Bank of Mr. Kwak's
non-compliance with the terms of his obligations, nor shall anything contained herein constitute an
646216.3
6
agreement by the Bank to enter into any further agreements with Mr. Kwak. Neither this Agreement
nor any other documents to be executed in connection herewith is in any way intended to constitute a
novation of or a waiver of any of the underlying obligations. The Note and any and all other
agreements in writing between Mr. Kwak and the Bank shall remain in full force and effect. In the
event of any inconsistency between the terms of this Agreement and the terms of the Loan
Documents, the terms of this Agreement shall prevail. All other terms, conditions and covenants set
forth in the Loan Documents, except as expressly modified herein, remain unchanged and in full force
and effect.
14. Extension. Nothing herein shall be construed as a representation or warranty by the
Bank that the forbearance term granted herein shall be extended or renewed and the parties hereto
confirm and acknowledge that no further extensions or renewals have been promised.
15. Time. Time is of the essence of each provision of this Agreement.
16. Construction. The parties acknowledge that each party and each party's counsel have
reviewed and revised this Agreement and that the normal rule of construction to the effect that any
ambiguities are to be resolved against the drafting party will not be employed in the interpretation of
this Agreement or any amendments or schedules hereto.
17. Release. Mr. K wak hereby waives and releases the Bank, its officers, employees,
agents, representatives, attorneys and directors and their executors, administrators, heirs, successors
and assigns from any and all claims, causes of action, set-offs, recoupments, actions, debts, damages,
liabilities and expenses which they may have against the Bank in connection with the Note, any
6462/6.3
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action or inaction of the Bank or in any way related to the Loan Documents and/or the negotiation of
this Agreement.
18. Voluntary Agreement. Mr. Kwak represents and warrants to the Bank that (i) he is
represented by legal counsel of his choice in regard to the transaction provided for in this Agreement
and that such counsel has explained to him the significance of the terms, and the full meaning and
effect of this Agreement; (ii) he is fully aware and clearly understand all of the terms and provisions
contained in this Agreement; (iii) he has voluntarily, with full knowledge and without coercion or
distress of any kind, entered into this Agreement and the documents executed in connection with this
Agreement; (iv) he is not relying on any representations either written or oral, express or implied,
made to them by the Bank other than as set forth in this Agreement; and (v) the consideration
received by Mr. K wak to enter into this Agreement and the arrangement contemplated by this
Agreement is fair, reasonable, equitable, actual and adequate.
19. Modification. This Agreement may not be modified except by a writing executed by
the parties hereto with the same formality as this Agreement.
20. Gender and Number. Unless otherwise specified, the masculine shall include the
feminine and the neuter and vice versa. The singular ,shall include.the,pluraLandvice versa.
21. Additional Instruments. Each party shall, at the request of the other party, execute,
acknowledge and deliver whatever additional instruments may be required in order to accomplish the
intent ofthis Agreement.
22. Invalidity. In the event anyone or more of the provisions contained in this
Agreement shall for any reason be held to be invalid, illegal or unenforceable in any respect, such
646216.3
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invalidity, illegality or unenforceability shall not affect any ofthe provisions of this Agreement, and
this Agreement shall be construed as if such invalid, illegal or unenforceable provisions had never
been contained herein.
23. Counterparts. This Agreement may be executed in identical counterparts which
together shall constitute a single agreement.
24. Complete Agreement. This is the complete agreement and there is no written or oral
understanding or agreement directly or indirectly connected with this Agreement that is not
specifically incorporated herein by reference.
25. Waiver of Jury Trial. Mr. Kwak and the Bank irrevocably, as an independent
covenant, waive jury trial and the rights thereto in any action or proceeding between Mr. Kwak
and the Bank.
IN WITNESS WHEREOF, Mr. Kwak and the Bank, intending to be legally bound hereby,
have executed this Agreement the day and year first above written.
WITNESS:
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ATTEST:
MELLON BANK, N.A., now by assignment,
CITIZENS B OF PENNSYLVANIA
BY:
646216.3
9
COMMONWEALTH OF PENNSYLVANIA
SS:
COUNTY OF LUZERNE
" tit
ON THIS, the J A day of
H fie, J
, 2005, before me, the undersigned officer,
personally appeared Joseph E. Sweeney, who acknowledged himse!fto be Assistant Vice President of
Citizens Bank of Pennsylvania, and that he, being authorized to do so, executed the foregoing
instrument for the purposes herein contained by signing the name of Citizens Bank ofPennsylvanil!-,
by himself, as Assistant Vice President.
IN WITNESS WHEREOF, I have hereunto set my hand and notarial seal.
COMMONWEALTH OF PENNSYLVANIA
Notanal Seal
Jane A. Muscavage. Notary Public
City OfWiIkes-Barre. Luzeme Courm-
My Commission ElCpires Nov. 3. 2007
Member. PennSylvania Associahon Of Notaries
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COMMONWEALTH OF PENNSYLVANIA
COUNTY OF
SS:
ON THIS, the ~ day of ---..f3..pr I
, 2005, before me, the undersigned officer,
personally appeared Sang Ho K wak, known to be (or satisfactorily proven) to be the person whose
name is subscribed to the within instrUInent, and acknowledged that he executed the same for the
purpose therein contained.
IN WiTNESS WHEREOF, I have hereunto set my hand and notarial seal.
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NOTARYPUBLI .
646:2:16.3
COMMONWEALTH OF PENNSYLVANIA
NotarIal Seal
Rhonda HeffeIlinger, Notary PUblic
City Of Hanisburg, Dauphin ~
My Commission Exp;res Apr. 22, 2008
Member, Pennsylvania Association Of Nolaries
,
SCHEDULE A
Savford Market Secured Equipment
Sharp ER-A330 Cash Register
TEL SL 9000
Casio PCRT 2000 Cash Register
Mega Refrigerator Unit
Panasonic KX-FP121 Fax Machine
Pre Fab 10 x 12 Walk In Cooler
Bunn Coffee Maker VPS Series
Hobart Meat Tenderizer
Power Cooler 2 Door
Bird Meat Cutter
Beverage Air Deli Cooler
Heat Sealer 20 Inch
True Deli Bar Refrigerator
Berkel Meat Slicer 3340
Hussman Meat Cooler Displays (3)
Berkel Meat Slicer 919/1
Tafco Pre Fab Walk In Cooler 12 Door
Eastern Mfg. Checkout Computer
System
(1) Master Computer
(2) Check Out Stations
Tafco Pre Fab Walk In Freezer 12 Door
Whirlpool Range
Younq's Market (Newville. PAl Secured Equipment
Powers Sliding Cooler with butcher top cover, Ser. No. B947-556
Migdi Deli Case with Bottom Refrigerator, Ser. No. 894004
21/2 x 3' Tappan Chest Freezer
Sturdi-Bilt up Draft and Exhaust Fan
30" Comstock-Castle Stove, Ser. No. 7MM420
Castle Pizza 2-Shelf Oven, Ser. No. 6MM128
Westy Cash Register Sanyo, Ser. No. 63404445
Slicer Model 919-1, Ser. No. 9365-1151-09830
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./ SANG HO KW AK
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Sworn to and subscribed before me
this~dayof-B..pr 1\
,2005.
COMMONWEALTH OF PENNSYLVANIA
Notarial Seal
Rhonda Heffelfjnger. NotaJy Public
City Of Hanisbu'll, Dauphin County
My Commission El<pires Apr. 22, 2008
Member, Pennsylvania Assoclation Of Notaries
\J'~m'~ \~~lf\,iY^'r/:'
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. S 4904
relating to unsworn falsification to authorities.
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RECEIV!:u .~.. v v 2005 \.
iRECEIVED nub 302005
MELLON BANK, N.A., now by assignment
CITIZENS BANK OF PENNSYL VANIA
8 West Market St.
Wilkes-Barre, PA 18701,
IN THE COURT OF COMMON PLEAS
OF CUMBERLAND COUNTY
Plaintiff
vs.
CIVIL ACTION n LAW
REPLEVIN
SANG HO KWAK and YON HWA KWAK
672 Bloserville Road
Newville, PA 17241,
Defendants
NO. DS - "f.lf~1
C,~d-,~8L~
ORDER
AND NOW, this -4 day Of~, 2005, at 7.:60 o'clock f-..m., it is hereby
ordered that there will be a hearing on the Plaintiffs motion for writ of seizure, on theL5~day of
dJtJ~L401~ 2005, at /: 3iJ o'clock, -f-.m., at the Cumberland County Courthouse,
One Courthouse Square, Carlisle, Pennsylvania, Court Room --'---...
sc: ~:aK;~
~hae1 L. Solomon, Esquire ~
~es T. Shoemaker, Esquire
J.
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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
CNIL ACTION -- LAW
Plaintiff
REPLEVIN
vs.
SANG HO KW AK, Individually and d/b/a
Young's Food Market and YON HWA KWAK:
672 B10serville Road
Newville, PA 17241,
Defendants
NO. 05-4421 Civil Term
NOTICE OF HEARING FOR SEIZURE OF PROPERTY
TO: Sang Ho Kwak, Individually and
d/b/a Young's Food Market
672 Bloserville Road
Newville, PA 17241
You are hereby notified that
1. Plaintiff has commenced an action of replevin and has filed a motion for writ of
seizure ofthe property described in the complaint. A copy ofthe complaint, the motion for writ
68290].1
of seizure, the brief in support of motion for writ of seizure and the Order dated September 9,
2005, is attached to this notice.
2. There will be hearing on this motion for writ of seizure on Thursday, December
15,2005, at 1 :30 p.m., at the Cumberland County Courthouse, One Courthouse Square, Carlisle,
Pennsylvania, Court Room 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 of the property
claimed by the plaintiff before a final decision in this case.
Respectfully submitted,
HOURIGAN, KLUGER & QUINN, P.C.
BY:
~~ ----
James T. Sh~maker, 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
(570) 287-3000 Telephone
(570) 287-8005 Facsimile
Dated: September ~o ,2005
682901.1
HOURIGAN, KLUGER & QUINN
A PROFESSIONAL CORPORATION
BY: James T. Shoemaker, Esquire
IDENTIFICATION NO. 63871
LAW OFFICES
600 THIRD AVENUE
KINGSTON. PA 18704
(570) 287-3U~U
ATTORNEY FOR PLAINTIFF
>J
r-."
c-:-:-J
C_.'~
C)
--n
-"
-::-r:
,
'-D
MELLON BANK, N.A., now by assigrunent
CITIZENS BANK OF PENNSYLVANIA
8 West Market St.
Wilkes-Barre, PA 18701,
IN THE COURT OF COM~(}N Pk.EAS,
OF CUMBERLAND COUNTY"
,---,
....<.::
C,)
Plaintiff
vs.
CIVIL ACTION -- LAW
REPLEVIN
SANG HO KW AK, individually and d/b/a
Young's Food Market, and YON HWA KWAK
Box 672, RD#3 Bloserville Road
Newville, PA 17241,
Defendants
NO. DS; _ ,/...jJ{;)(
CI~~l'-r8L.hf
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 without further notice for any
money claimed in the Complaint or for any othcr claim or relief requested by the Plaintiff. You may lose
money or property or other rights important to you.
617Yl71
YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT
HAVE A LAWYER, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW. THIS
OFFICE CAN PROVIDE YOU WITH INFORMATION ABOUT HIRING A LAWYER.
IF YOU CANNOT AFFORD TO HIRE A LAWYER, THIS OFFICE MAY BE ABLE TO
PROVIDE YOU WITH INFORMATION ABOUT AGENCIES THAT MAY OFFER LEGAL
SERVICES TO ELIGIBLE PERSONS AT A REDUCED FEE OR NO FEE.
COURT ADMINISTRATOR
Cumberland County Court House
Carlisle, P A 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.
~.....~
\~~-~,.
_.~~.. . -.-
._,. ,F--
BY:' /--'"
James T. Shoemaker, Esquire
Counsel for the plaintiff, Mellon Bank, N.A.,
now by assignment, Citizens Bank of
pennsylvania
-"""~-
677397.1
Ext. 1126
Direct e-mail: ishoemakcr(cbhkapc.com
August 26, 2005
Sang Ho Kwak, individually
and d/b/a Young's Food Market
RD#3
BOX 672
Newville, PA 17241
Property Address:
Account No.:
Young's Food Market, RD#3, Box 672, Newville, PA ]7241
0805386-0]01
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,
L~:SL-"
James T. Shoemaker, Esquire
JTS:dg
THIS NOTICE DOES NOT SUPERCEDE YOUR OBLIGATIONS UNDER THE FOREGOING
NOTICE TO PLEAD
67998'2,.\
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
"(5.70) 28(..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.
CIVIL ACTION -- LAW
REPLEVIN
SANG HO KW AK, individually and d/b/a
Young's Food Market, and YON HWA KWAK
RD#3, Box 672
Newville, PA 17241,
Defendants
NO.
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"), RD. 3, Box 672, Newville, PA 17241, as follows:
1. The Bank is a Pennsylvania state chartered bank conducting business in the Commonwealth of
Pemlsylvania, having an office located at 8 West Market Street, Wilkes-Barre, PA ]8711.0101.
2. Mr. Kwak is an adult individual with a last known address of 2208 Chatham Way, Harrisburg,
PA17]IO.
3. Upon information and belief, Yon Hwa Kwak is deceased.
677402. J
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.)
S. 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, "Young's 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 ofthe Note by failing to make monthly payments of
principal and interest due under the Note.
8. As a result ofMr. Kwak's default under the terms of the Note, the Bak and Mr. Kwak
entered into a forbearance agreement dated April 12, 2005 (the "Forbearance Agreement"), upon the
terms and conditions more particularly set forth therein. (A tme and correct copy of the Forbearance
Agreement is attached hereto as Exhibit "c" and incorporated herein by reference.)
9. Mr. Kwak defaulted under the terms of the Forbearance Agreement by failing to make
payments of interest due under the Forbearance Agreement.
677402_]
2
10. The fair market value of the Young's Collateral is unknown, but is believed to be less
than the amount due and owing the Bank by the Kwaks under the Note.
11. The Bank believes and therefore avers that Mr. Kwak has possession of the Collateral.
12. 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.
13. The balance ofthe Note as of August 8, 2005 was $296,891.95, consisting of principal in
the amount of$291,949.92, accrued interest in the amount of$4,706.61, and late charges in the amount
of $235.42, 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$296,891.9s, plus interest from August 8, 2005, 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 Sheriffto seize the Collateral.
Respectfully submitted,
HOURIGAN, KLUG~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
Telephone (570) 287-3000
Facsimile,,(570) 287-8005
Dated: .' I-.,",r l (;- , 2005
,
6774Q2.\
3
$ 395,000.00 ,_____
f'romiso To Fay. Fon VALUE RECElVED,and intending to be legally
1l{)ul1cJ, U/lcJn;;igncd, as ddlncd below, promises 10 pay 10:
}'1eJJoI1_Jli.!..!)_.v~__tl_J\~ ____ ____
("Hank") or it.s order at .
ffarrieburg, ppnr~_~'y)vanLa_
lhe .sUIll oj
Three Hundred Ninety Five Thousand and
QQL1 00
Dollars ($ 395,000.00 ), :with interest on the
outstanding balance from the date or: this Promissory Note
("Note") at thc cate(s) ("O:mtractual Ratej:s)"} and in accordance
with the repayment schedule spectfied helqw,
Contractu<lf Rate(s); R8paymanl Schedules. :
o Intercst at a rate per arW.um:which is %
above Bank's Prime Rate, such rate to ch:lnge from time to time
as of the effective date of each announceG change in such Prime
Rate shall he paid when principal paym,ents are due. Principal
shall' be paid in consecutive l\lonthly installments of
$ eachl commencing on ,
and continuing thereafter on the i day of each month
with the balance of the indebtedness, if DQt sooner paid, due and
payable on :
o In:ercst 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$ctting of the CD Rate,
shall be paid when principal payments ar~ due. Principal shall be
paid in Consecutive mdnthly installments of
I .
$ each, . commencmg on
, and continuu)g thereafter on the
day of each month witl\ the balance of the
indebtedness, if not sooner paid, ~ue and payable on
;
o The principal balance pe!,eof, together with all
accrued and unpaid interest, sbaU be paid on ,
and interest at a rate per annum whl~ is % above
Bank's Prime Rate, such rate to change from time to time as of
the effective date of each announced cha*ge in such Prime Rate,
shall ~ paid on the day of eachlmonth commencing on
, ,
:
,
I
o The principal balance ht' f. together with all
...accrued and unpaid interest, shaU be pai on - 1
and interest at a rate per annum which' % above the
CD Rate, such rate to change from e to time as. of lhe
effective date of each change in or rese((i~ of the CD Rate, shall
be paid on the day of each ronth oornmencmg on
, ,
,
o In no event shall the rale charged Ion this Note exceed
~ % per annum. I
o The principal balance het f, 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 mtnth commenCIng on
,
.'. 'V I!- I
1XI "S--.., 'Interest shall be calcul~ted at the rate ,?f
A C.O % per annum. Principal and ttter<:t shall be paId In
1;"'<l - consecutive monthly ~Ilments of
$ 3 '373.6<; e3ch,co
, >)
~
~
co
w
~
w
>-
~
~
~
/!
~/!yf~
./
07/01/1999 , and continuing thcrc<,ncr on the 1ST
;f:lyofc;1Ch~lliH1th \-<.1(h the balance of Ihe indchlcdn-cs:<;, if not
soonCf paid, due and p-ay"b{e on O(ljOl/2014 . During <lny
period that (he C(ll1tractual Ilate(~) is reduced by 0.25% per
annum, a<; dexribcd elsewhere in this Note, installments of
principal and interest shaH instead be in the amounl of
$ 3 (864 ~ 70 caeh. If the reduction in the Contractu<11
Ralc(s) is no longer in effect, the amount of installments or
principal and irt(crcs( shall return to and be the same a~ the amount
of such instaUmcnts. prior to the reduction in the Conlractual
Ratc(s),
Undersigned shall pay Bank concurrently with the execution and
delivery hereof, or Undersigned previously has paid Banle, an
origination fee of $, 3,950.00 . 10 compensate Bank
for its unde<Writing. origiuatioo.and administration of the loan
evidenced by this Note. This fee shan be deemed fully earned by
Bank on Ihe date hereof, shall not be refunded, and is in addition
to any other fees, <:osts or expenses which may be due and payable
hereunder.
Unless Undersigned has authorized Bank 10 take payments out of
a Mellon O1ecldng 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 tl1an the due date shown on each bill.
o Undersigned authorizes Banle to take all
payments of principal anel/or interest and/or other amounts due
under this Note out of Undersigned's MeUon Oleclcing Account
Number . titled in the name(s) of
Ion or
after the day of each niouth. Under:signed 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 Banle 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 thal Undersigned keeps a sufficient balance in this
account to cover -the full amounts of aU required payments, the
Contractual Rate(s) shall be reduced by 0:25% per annum. This
authorization will be effective even thoug~ this Note and the
account may be titled in different versions of Undersigned's name.
If the _original principal amount or this -Note is in Q::CCSS of
S1O,OOO.OO, or if U!1decsigned is 3: -corporation, ipterest shall be
calculated on the basis of a 3<iO-<lay year and 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.{\ay year or 3('6-<lay 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 Dank as its Prime Rate. The Prime Rate may
be greater or less than other interest rates charged by Bank to
other borrowers and is not solely based or dependent upon the
interest rate which Bank may charge any particular borrower O(
dass o( borrowers.
If a single certificate of deposif is held by Bank as collateral securily
for the indebledness evidenced by this Note1 as marc [~Uy
d=ibcd in the Assignment of Deposit Account expressly referring
to this Note "CD Ralc" shall mean the interest rate paid by Dank
on such certifi~te o[ deposit (the lIl~ifIC3te")1 Said CD Ratc to be
Page 10f5
-""'
,.
,
. /
reset by Bank at each rcnc\V3I of the Ccdlficatc. If morc than one
certificate of deposit is held by Bank a, collateral security far the
indebtednes.s evidenced by this NOIC, as morc fulty described in [he
A'\..')ignnlcnt(s) of Deposit Account expressly rdcmng to this Note,
"CD Rate" shall mean the highest of the interest ralcs paid hy B;lnK
OIl such ccrtifiGllCS of deposit (the "CcrlifiGllCS"), s:lid CD R:.llc [U
be reset at each renewal of each Certificate.
Late Chargo. If any payment (including without limitation any
regularly scheduled payment, balloon paymcnl or final payment) 1.<;
not paid within 15 calendar days after it is clue, Undersigned win pay
a late charge of the greater of $25.00, or three percent (3(I's) of the
unpaid portion of the scheduled payment due (regardl= of whether
(he payment due consists of principal and interest, principal onty or
interest only). Such late charge shall be in addition to any increase
made to the Contractual Ratc{s) applicable to the outstanding
balance hereof as a result of malurity of this Note or otherwise, as
well as in addition to any other applicable fees, ch3rges 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
atxwe the Contractual Rate(s) until the earlier of the date that such
Event of Default lIas been cured or until and including the date of
maturity l1ereaf.
After maturity, whetller by acceleration or olhetwise, interest shall
accrue at a rate equal to two percent (2%) per annum above the
O:mtractual Rate(s) until aU sums due hereunder are paid. Interest
shall continue to accrue after the entry of judgment (by confession or
ollIetwise) at the O:>ntractual Rate(s) until aU sums due hereunder
and/or under the judgment are paid, except that after maturity or, at
BanlCs option, upon the occurrence of any Event of Default, interest
shall accrue at a rate equal to twO percent (2%) per annum above
lIIe Omtractual 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 aU amounts
- at any time owing or payable under this Note and Undersigned's
obligations hereunder, as well as to secure aU costs and expenses
incurred by Bank in the collection or enforcement of this Note or the
-protection of any collateral securing lIIis Nate (including willIout
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 agai.nst. 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 aclcnowledgcs and agrees that Undersigned shall
renew, or cause to be renewed, the Certificatc(s), if any, until the
indebtedness evidenced by this Note has been paid in futL
Undersigned furthcc agrees that Undersigned will execute, or will
cause to be executed, upon demand by Bank: any financing
statemcots or other documents, indudiog, without limitation,
additional Assignments of Deposit Account, whictl Bank: may deem
~ or dC'ilcable to evidence, perfect or maintain perfection of
the security interests created in the Certificate(s) and any renewal'),
replacements and substitutioCL"i thereof.
Additional Terms and Conditions
\. Covenants, Undersigned covenants and agrees that until a
indcbtC'..dncs.<;_ cvidcnce.d ~ereby ha"i been paid in full, Undersigne.
~ban: (a) ~1a~nlam at all hmcs.3 positive tangible nct worth; (b) (1
have all blVlfonmental PcrmH5 oeccs..vuJ for Ihe conduct of cae
of Un<..kT:>igl1cu':i \)\J:)inc.i.')cs and opcr,Hions, (2) conuuct (,;lCh c
Undersigned's businesses and ofXrations in material compliano
WIth at! applicable Environmental Laws and Environmenl<'
Pc~mi~s, (3) nol pc:mit lo Cxls.l any evenl or condition lhat require
or lS hk.dy to requIre Underslgned under any Environmental LCl\
to payor eXfJC.nd_ funds by WdY of fines, judgments, damagc5
cleanup, rcmcdt~l1on or the lik.e in an aggregate amount, th(
payment of wlueh could reasonably be expected to interfen
substantially with normal operations of Undersigned or materiall'
adversely affect the financial rondition of Undersigned, (4) not~
Bank promptly upon beconung aware of any pending or threatenc<
proceeding, suit, investigation, allegation or inquiry l"cgarding a01
alleged even! or condition that, if resolved unfavorably t(
Und,,;(signcd or ar.y of Undersigned's subsidiaries or affiliates i:
lik.ely l' J cause Undersigned or any of its subsidiaries or affi\i;t~
under any Environmental Law to payor expend funds by way 0
fines, judgments, damagcs~ deaning, remediation or the like ane
(5) provide at Undersigned's east, upon request by Bank
certifications, documentation, copies of pleadings and othel
iafonnation regarding the alx:)ve, all in form and content
satisfactory to Bank; (e) conduet each of Undersigned's busin=
and operations in material compliance with aU federal, Slate or local
laYlS, statutcsj regulations. rules. ordinances, court or administrative
orders or decrees, or private agreements or interpretations. now Q[
hereafter in existence. directly or indirectly relating to or affecting
Undersigned's businesses or operations; (d) use lIIe proceeds ofllIe
loan evidenced hereby only for business purpose(s) specified to
Bank at or prior to the execution hecco~ (e) promptly notiJy Bank
in writing of any change in Undersigned's residence or Chic!
Executive Office; (f) purchase and maintain policies of insurance
(mcluding flood insurance) to protect against sueb risks and
casualties, and in such amounts, as shan be required by Bank
and/or applicable law, wluch policies shaII (1) be in form and
substance satisfactory tn l3anlc, (2) at Bank's option, designate
Bank as loss payee and/or as additional in 'lured. and/or contain a
lender's loss payable endorsement, and (3) be (or certificates
evidencing same shall be) deposited willI Bank; (g) (1) maintain
and keep proper records and books of account in conformance willI
generally accepted accounting principles applied on a consistent
basis in which full, true and correct entries sl1all 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
retums, inventory reports (including a description of raw materials,
finished goods, and the aging tl1ereaf, as applicable), and accounts
receivable and payable aging reports), all in farm and content
satisfactory to Dank, 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 tbe affairs, finances and
accounts of Undersigned with representatives thereof. as often as
Bank may request; (11) provide a.dditional collateral at sucb times
and having such value as Bank may request, if Bank shaU have
reasonable grounds for believing that the value of the collateral
SC-aJring the indebtedness evidenced by this Note has become
insufficient to .!<XUre said indebledOc.5S; (i) pay, upon de/llJlnd 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 ncccssa.ry or desi.rable to be ftied with regard to security
interests which secure the., indebtedness cviden<:cd hereby,
regardless pf whether such ""'irity interests were grant;<1 by
Underslgnell..and (2) all costs ani! CXjJC1,L= incurred by Bank m
'.
rage 20(5
)' '
wnncctio'n with any oollateral securing this Note (induding withoul
Iim{tation all advances made by Bank for (axes, levies, insurance,
repairs to or maintenance of said collateral. appraisal or valuation
of ~'1id collateral, and determination of fIocxj ha7..1rd), regardless of
whether such collateral is owned by Undersigned; and (D pay, upon
dCOl:md by B:1nk, aU amoun!s incurred by Ibnk in connection with
all)' action or proceedmg taken or commenced by B:lllllO enforce
or collcct this Note, including attorney's fees equal (0 the tc..<;.SC( 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 or legal
proceedings.
2. Events of Default The occurrence of any of the following shall
constitute an "Event of Dcfau\t" hereunder. (a) default in payment
or performance of any of the indebtedness or obligations evidenced
by this Note Of any other evidence of liability of Underslgncd to
Bank; (b) the breach by any Obligor (defined as Undersigned and
each surety or guarantor of any of Undersigned's liabilities to Rank
as well as any person or entity granting Banle a sccutity infere~1 in
property to secure any indebtedness) of any CQl/CUaUt contained in
this Note or in any separate security, guarantee or suretyship
agreement between Bank: and any Obligor, the QCl;UITcuee of any
default hereunder or under the teons of any such agreement, or
the discovery by Hank: of any false or misteading representation
made by any Obligor herein or in any snch agreement or in any
other information submitted to Hank: by any Obligor; (e) 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; (I) 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 Banlcruptcy 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 taldng by
governmental authority or other creditor of any property of any
Obligor which is in Bank.1s possession or which constitutes security
for any indebtedness evidenced hereby; (i) entry of judgment
against any Obligor in any oourt of record; (j) the assessment
against any Obligor by the 'Internal Revenue Service or any other
federal,. state or local taxing auUtority 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
Baole, which determination shall be condusive if made in go<X1
faith, that a material adverse change has QCl;UITed 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 othervlisC; 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 shaH continue for morc than any applicable grace
period,
3_ Acce/eravon; Remedies. U{X)n the occurrence of any Event of
Default: (a) all amounts due under this Note, including the unpaid
balance of principal and interest hercof, shall become immediately
due and payable at the option of Bank, 'Without any demand or
notice whatsoever, and (b) Bank may tmmcdialdy and without
demand exercise any of its rights and remedies grnntcd herein,
under applicable law, Of which it may otherwise have, against
Undersigned or othccwisc. Notwithstanding any provision to the
contrary contained herein, upon the occurrence of an Event of
Default as describCd In Section 2(1) beroo~ aU amounts due undCl'
this Note, induding w""Jullimi1.3oon the unpaid balance of prine
and inleresl hereof, shall beoome immediately due and paya
without any demand, notice or further action by Dank whatsoc'
and an action therefor shall immediately accrue.
4. Bank's Rights. Undersigned herehy authorizes Ba!1k, and H:
shall have Ihc omlinuing rig/iI, al ils sole option and dl.<rCrcliOll {(r
do anything which Undersigned L'i required but fails to do, 'and
partic:ular Dank Ol<lY, if Undc~signc.d fails to do so, oh(<lln and P<'Y
prcnllums [XIyablc on <wy policy of Insurance required (0 be obtain
or maintained hereunder; (b) direct any insurer to make payment
any insurance proceeds, including any returned or unc..'\o
premiums, directly to Bank, and apply such moneys to ;
indebtedness or Olher amount evidenced hereby in such order
fashion as Bank may elect; (e) pay the proceeds or the loan eviden<
by this Note to any or all of the Undersigned individuaHy or jointly,
to such other pcrson(s) as any of the Undersigned may direct, exc
to the extent otherwise provided in Section 6 hereof; and (d) add;
amounts paid or incurred by Bank under Section l(i), Section 1(11
Seelion 4{a) to the principal amount of the indebtedness evident
by this Note.
5~ Authorization to Borrow. Undersigned hereby represents, warraf
certifies and covenants as follows:
(a) If Undersigned is a corporation, that the person(s) signing bel
hold(s) the office(s} indicated below (and continue to hold Sl
office(s) until Bank has received notice to the contrary in writ
from Unden;igned), and that the Board of Directors of Undersigr
has adopted resolutions providing that: (1) the person(s) execut
and delivering this Note on behalf o{ Undersigned is/are authoru
(i) to incur indebtedness and obligations on behatf of Undersigned
borrowing or malcing other financial arrangements with Bank frc
time to time, upon terms and conditions as they in their So
discretion deem desirable, (Li.) to make, execute and deli-
promissory notes1 letter of credit agreements, security agreemer
assignments, mortgages and all other documents required by Bank:
connection with the incurring of indebtedness or obligations, and (
to assign and pledge as oollateral security {or any sneb indebtedn'
or obligations. now or hereafter emling, any real or persol
property of Undersigned; (2) the actions of anyone or more offio
of Undersigned in borrowing money from Bank heretofore for I
account of Undersigned, in assigning Or pledging any
Undersigned's property for the payment thereof, or in doing ,
other act in connection lherewith are hereby ratified, confirmed a
appr<Ned; and (3) said resolutions shall have lhe force of a cantinu]
agreement with Bank:, and shall be binding upon Undersigned unt
resolution amending them shall have been duly and legally adopl
and Bank furnished a certified copy thereof.
(b) If Undersigned is a partnership, that (1) Undersigned's nal
shown bel(JIN is a trade name of Undersigned's fi["m used in I
ronduct of an unincorporated business Q\imed entirely by the pers<
signing this Note on behalf of said partnership; (2) the part"
executing and delivering this Note arc authorized (i) to io<
indebtedness and obligations on behalf of Undersigned by barrow
from or making other financing or credit accommodations wilh B2
from time to time, upon such terms and conditions as they in th
sole discretion deem desirable. (ii) lo make, execute, and deli-
promissory notcs, letter of credit agreements, security agrecmcr
assignments, mortgages and aU other documents required by Bank
ronncction with the incurring of indebtedness or obligations, and (
to assign. ao.d pl;~se as collateral security (or any such indebtcdn
or obligationS.~ -nov.' or hereafter existing, any real or pccso'
property of Undersigned; (3) the actions of any onc or morc partO(
of Undersigned in oorrowing money from Bank heretofore (or I
account of Undersigned, in assigning or pledging any
Undersigned's property {or the payment thereo~ or in doing ,
other act in, connection lhercwith,..af,C hereby ratified, confirmed, a
approved; (4l notwithstanding any:modificalion or tcmtinatlOi1 of tl
rage 3 or 5
.'V.
power of any of the partners 10 represenl said fUlD, whether by
expiration of the partnership agreement. by death or retirement
of any p:1rtncr, or the accession of one or more new panners, or
othcrv.'isc, and notwithstanding any other notice thereof Bank
nJil}' receive, this JUlhorily sh(l/l conlinue to be binding upon each
of (he Undersigned individ\lalty and UIX)fl their kgal
rcprcscnL:Hivcs, and Ura" Undersigned and its su~sors, until
Dank has received notice in "''filing to the con\rary signed by onc
of the Undersigned or by Undersigned's duly .Iulhorizcd agent
(Receipt of such notice will not relieve any partner of any liability
arising from obligations incurred prior to Dank's receipt of such
nolice.), 3nd (5) nothing herem shall be ooos{fucd to \lmi\ the-
rights granted to a parlncr by law or by the partnership
agreement, but all rights granted herein shall be in addition lo
such rights.
6. Definitions; Miscellaneous Provisions. (a) Undersigned waives
(except where requested hereby) notice of adion taken by Bank;
and hereby ratifies and confinns whatever Bank may do. Bank
shall be entitled to exercise any right dotWJ.th.,Canding dny 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 !he indebtedness evidenced hereby. Undersigned warrants Ihat
Undersigned has no defense whatsoever to any action or
proceeding that may be brought to enforce or realize on any such
judgmenL (e) If any provision hereof shall for any reason be held
invalid or unenforceab1e, no other provision shall be affected
thereby, and this Note shall be construed as if the invalid or
unenforceable provision bad never been a part of iL The
descriptive headings of this Note are for convenience only and
shall not in any way affect the meaning- or construction of any
provision bereo[ (d) The rights and privileges of Bank contained
in this Note shall inure to the benefit of its SUCttSSOfS and assigns,
and the duties of Undersigned shall bind aU heirs, personal
representatives, successors and assigns. (e) This Note shan in aU
respects be governed by the laws of !he state in which this Note is
payable (except to the ertent that federal law governs), (I)
Undersigned hereby irrcv0C'3bly appoints Bank: and each holder
hereof as Undersigned's attorney-in-fact to endorse
Undersigned's name to any draft or ehectc which may be payable
to Undersigned in order to coUed 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 aeknowledges that this appoiotment of Bank and each
holder hereof as attorney-in-fact is irrevocable and is coupted
with an interest. (g) U naersigned assigns to Bank. aU moneys
whieh may beeome 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, rute,
ordinance, court or administrative order or decree. or private
agreement or interpretation, now or hereafter in aistence,
relating to the manufacture, distribution, labeling. use, handling,
collection, storage, treatment, disp:JS31 or otherwise of Hazardous
Substances, or in any way relating to pollution or protection of
the environment or pLlblic health. (i) "Environmental Permit"
means any federal, state or local permit, license or authorization
issued under or in connection with any Environmental Law. (D
"Hazardous Substances" means petroleum and petroleum
pr<xl.ucts, radioactive materials., asbestos. radon, lead
cDolaining m3tcria!s, sewage or any II13terials or subslances
dcHncd as or included in lhe dcfinition of "hazardous wasles ..
~h3zardous subst(-lnc-c:<;,~ "hazardous materials" "tox(c
sub:il<1nCCs," "h;lZ.arduus <lir pollutants," "(oxic ~tlulan15,"
"pollution,~ or terms of similar meaning, as those tcrms arc
used 10 any Environmental Law. (k) "Chief Executivc Office"
mcans the pl<lcc from which the main parl of {he business
operations of an entity is managed. (I) "Undersigned" refers
individually and col!cctively to all makers of this Note,
including, in the c-<t<;c of any partnership. all general parlners of
such partnership individually and coUcclively. whether or not
sueh partners sign below. Undersigned shaII eaeh be jointly and
severally bound by the terms hereof, and, wilh respect to any
partnership exeruting this Note, each general partner shall be
boL1nd hereby both in such general partners individual and
partnership eapacities.
7. Direction to Pay Proceeds.Undersigned bereby authQrizes and
directs Bank to pay Ihe proceeds of this Note by: . '
VI crediting Aceoun. t Number otC-f(,Z 7 -1 'I'f1. 11 (p 1,2.9
~in~M~~ /
5f1N6)/0 ~DJ'J !fWPr K.\J {({\.
in the amount of $ ,
. I tm r1 $' 529 00 ~~I/hn'j mt//OtV
'i7lpaying mO _ H (P" _' ID/-(}.,7'!J-j 2&'1. S
f'\. AWL "'-31'!'w;?3' VOle;; '2..~
the amount of $
~ying fjltJU:;CflL! q/;I/9tj.~f
the amount of $
8. NfidavitofBusin6ss Loan.(Ihis Affidavit is not applicable if
Undersigned is a corporation.) Undersigned, being duly
authorized, depose(s) and say(s) under penalry of perjury that
Undersigned:
(a) !sIAre engaged in business asS Owner(s), 0 General
partner( s) of: (name and nature of business)
XOUNG 'S FOOD MARKET AND
SAX-FOP,? SUPERMARKET H- 9(----.
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) Ex:ercise(s) actual control over the managerial decisions of
the business.
(Remainder of page intentionally lell blank)
\1''' Page 4 of 5
~'
'.. :.
9, Confession of Judgment. UNDERSIGNED HEREBY
EMPOWERS 11m PROTIiONOTARY OR ANY
ATTORNEY OF ANY COURT OF RECORD TO APPEAR
FOR UNDERSIGNED AND TO CONHOSS JUDGMENT
AS OFTEN AS NECESSARY AGAINST UNDFRSIGNED
IN FAVOR OF TIll' 1I0l.DER lIEREOF, RFGAIUJl.ESS
OF WHETHER ANY EVENT OF DEFAULT lIAS
OCCURRED, AT ANY TIME AND AS OF ANY TERM,
FOR THE OUTSTANDINO PRINCIPAL IJALANCE
HEREOF PLUS INTEREST DUE UNDER 11lE TERMS
HEREOF AND ALL OnIER AMOUNTS DUE
HEREUNDER, TOGETIlER WITH CXlSTS OF LEGAL
PROCEEDINGS AND AN ATTORNEY'S COMMISSION
EQUAL TO TIlE lESSER OF (A) 20% OF TIlE
OUTSTANDING PRINCIPAl. BALANCE AND
INTEREST THEN DUE llEREUNDER Of( :);';00.00,
WHICHEVER IS GREATER, OR (B) 'nIE MAXIMUM
AMOUNT PERMITTED 131' LAW, wnlf RELEASE OF
ALL ERRORS, UNDERSrGNED WAIVES ALL LAWS
EXEMPTING REAL OR PERSONAL PROPERTY
FROM EXECUTION,
By signing this Note, Undersigned agrees to nIl teons of the Note and swears, under penalty of perjury (as set forth in
18 Pa.C.S. ~9Q4, If governed by Penn$ylvanla Iuw), to the Affidavit of BU$lne$$ Loan (If completed) set forth In
Section 8 or this Note.
Witness the due executioo.bereof under seal
x
Witness:
:"""~/~
Mellon [lank. N.A
Mellon Bank (DE) N3lional Association
Cl..<543 R~,(tOi96) LC. 9fX, ill 9t16
0215 p 166~.38D I d4S43 (01)
052199.1605
,
. S FOOD MARKET AND
U-PE-R.MARKBT S-:4Y-F!.~'--?cJ .");;..'/:?FD~'1,,;.)/('.2
672 B ERVILLE ROAD//
NEWVILLE, PA 17241 }'IL- '7H..-
Individual:
~UN i1JJ;h;:AK iJA)-P. I~~
6721LOSERVILLE ROAD
NEWVILLE, PA 17241
(Seal)
. ;~'
PageS of5
.\,
...............-....-.-......... .._._.......-...........-...-...-..........,..._... ..............-....._'""". ........-...................".
For value received, and intending to be legally txmnd, in
consideration of a loan or other credit accommodation in the
amount of
Three Hundred Ninety Five Thousand and
00/100
Dollars ($ 395,000.00 ) made by
Mellon Bank. N.A.
("Bank") to
SANG HO KWAK. INDIVIDUALLY AND
~f~~~oF:~:~~~~rn
("Borrower(s)"), said obt:gation eVidenced by a
PROMISSORY NOTE
dated
Undersigned,
follows:
_ ~-'?fii '/ '7
intending to be legally
. (the "Note")
bound, hereby agrees as
1. Security InJerest Undersigned hereby grants to Baok a security
intere.st in the following property now owned or hereafter acquired
by Undersigned:
(Certain terms used herein are defined in Section 13 below.)
!Xl ~ fk;..) all equipment. wherever located, including
m3C 10 ry, motor vehicles, furniture and fixtures;
!Xl ~~ )cf;.1I inventory (whether held for sale or lease or to
be nis 00 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;
!Xl ~ Y&;fall accounts, contract rights, general intangible.s,
chatt I r, choses in action, instruments, documents (including
all documents of title aod warehouse receipts) and all rights to the
payment of money, however evidenced or arising;
o (d) all securitie.s; all cash, stock or other divideods or
distributions paid u(Xln 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 fann products; and
o (I) all property or rights described below under the
caption "Description of CollateraL"
Description or Collateral (Give a sufficiently detailed description
to identify each item).
~
<(
co
w
~
w
~
~
~
~
<(
",/1
x.'::J
_.~.."~._""...~.,._"..,
In addition to the foregoing, Undersigned: (I) grants to Bank
security interest in all accessions, parts, accessories, attachments al
appurtenances in any way used with. attacbed or related to,
installed in, or intended to be so used, attached, related to or install<
in, any equipment or inventory constituting "Collateral" hereund(
(2) grants to Bank a security interest in all substitutions for, renew:
of, improvements, replacements and additions to, and the prcxlu(
and proceeds (cash aod non-cash) of all of the foregoing propel
and any insuraoce policie.s relating thereto; (3) grants to Bank
security interest in, lien upon, and right of setoff against, all depo
accounts, credits, securities, moneys or other property
Undersigned which may at any time be in the possession of, deliven
to or owed by Bank, including any proceeds or returned or uncaro<
premiums of insurance, and the proceeds (cash and non-cash) of;
the foregoing property; and (4) assigns to Bank all moneys which m
become payable on any policy of insurance required to be maintainl
under this Agreement, including any returned or uneaml
premiums.
All such property subject to Bank's security interests described in tI
Section I is referred to herein collectively as the "Collateral." Wi
respect to Section 4 hereunder, the term "Collateral" shall not inclD'
the property described in Subsection (3) of this Section I.
All security interests in Collateral shall be deemed to arise and
perfected under and governed by the Uniform Commercial Co<:
except to the extent that such law does not apply to certain types
transactions or Collateral, in which case applicable law shall govern.
2, Obligations Secured. The Collateral shall secure the followi
obligations CObligation(s)"): (a) all amounts at any time owing
payable undq the Note, and any other indebtedness, liability
obligation of Borrower(s) or of Undersigned to Banle, now existing {
Page 1 o(
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 COOe.
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
cDntinue to be true and correct at the time of any borrowing under
any line nf credit with Bank and until the Obligations secured by
this Agreement shalt have been paid in fult: (a) each account: (I)
represents an amount actually owing to Undersigned by the
account debtor (less discounts altowed 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 alt 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: (I) any
account is o{ beoomes 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
dispute<l 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 impaire<l 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 infonnation 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 coUection thereof; (2) evidence of
shipment and receipt of goods and the performance oC 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 emplnyees 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
tbe accounts, and upon notice from Bank, deliver all proceeds of
accounts to Bank forthwith upon receipt, in the original form in
which received; (eJ immediately upon Bank's reques~ 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, cancelle<l or terminated; (g)
immediately upon Bank's request, furnish Bank with all
information received by Undersigned regarding the financial
condition of any account deblor, except to the ertent prohibited by
la~ (h) immediately deliver to Bank aU instruments, documents or
chattel paper representing any of the Collateral and immediately
assign of record to Bank any judgment representing any aceou
constituting Collateral; and (i) immediately upon Bank's reque
mark its records evidencing its accounts in a manner satisfactory
Bank so as to show which accounts have been assigned to Bank.
10. Additional Rights of Bank. In addition to Ihe Bank's rights s
forth elsewhere in this Agreement, Undersigned hereby authoriz
Bank, and Bank shall have Ihe continuing rights al any time, wheth
or not any default has occurred under this Agreement, and at its sc
option and discretion, without notice, to: (a) take over and collect al
or all of the accounts and to take any other action pursuant to ;
power of attorney granted herein; (b) exercise absotute and exclusi'
dominion and control over all funds deposited in the OIsh Collater
account; apply any funds therein agaiost any Obligations; and chaq
to any deposit account of Undersigned any Item of payment credit(
to the Cash Collateral account which is subsequently dishonored; (
at any reasonable time, through its authorized agents and employee
inspect, CJudit, and verify the accounts and the inventory, revie
Undersigned's books and records, and copy or make excerpts fro
any document; and (d) verify accounts with debtors in the name ,
Undersigned, BanI<, or Bank's designee.
II. M'lScelIaneous Provisions. (a) Undersigned waives protest of ,
commercial paper at any time held by Bank on which Undersigned
in any way liable, notice of nonpayment at maturity of any and ~
accounts, and (except where requested hereby) notice of action take
by Bank; and hereby ratifies and confirms whatever Bank may de
The rights and remedies of Bank hereunder are cumulative. Ball
shall be entitled to exercise any right notwithstanding any pri(
exercise, failure to exercise or delay in exercising any such right. (b)
any provision hereof shan for any reason be held invalid (
unenforceable, no other provision shall be affected thereby, and th
Agreement shall be construed as if the invalid or unenforceabl
provision had never been a part of it. The descriptive headings of th
Agreement are for convenience only and shall not in any way aff~
the meaning or construction of any provision hereof. (c) The righ!
and privileges of Bank contained in this Agreement shan inure to th
benefit of its successors and assigns. and the duties of Undersigne
shall bind all heirs, personal representatives, successors and assign
(d) No modification of this Agreement, nor any waiver of an
provision hereof, shall be effective or enforceable unless set forth i
writing and signed by an officer of Bank. (eJ This Agreement shall i
all respects be governed by the laws of the state where th
Obligations are payable as reflected in the document(s) evidencin
such Obligations (except to the extent that federal law governs), an
all references to the Uniform Commercial Code shall be deemed t
refer to the Uniform Commercial Code as enacted in such state. (:
Undersigned hereby irrevocably appoints Bank and each hold,
hereof as Undersigned's attorney.in-fact to: (t) endo!>
Undersigned's name to anydraft or check which may be payable t
Undersigned in order to collect the proceeds of any. insurance or ar.
returned or unearned premiums in respect of any policies (
insurance required to be maintained hereunder; and (2) take ar.
action Bank. deems necessary to perfect or maintain perfection of ar
security interest granted to Bank: herein, including executing ar
document on Undersigned's behalf. (g) Undersigned shall bear th
risk: of loss of, damage to, or destruction of the Collateral, an
Undersigned hereby releases Bank from all claims for loss or dama~
to the Collateral caused by any act or omission on the part of BanI
except for willful misconduct. (h) The prompt and faithn
performance of all of Undersigned's Obligations hcreunde
including without limitation, time of payment, is of the essence of th
Agreemen.t. (i) Copies or reproductions oC this document or of ar
financing statemc:nt may be filed as a financing statement.
12, Additional Power of Atromey. In addition to the powers (
attorney granted to Bank by Undersigned elsewhere in th
Agreement, Undersigned hereby appoints Bank and its officers,
Page 3 of4
1~~20~'01 11:22 FROM~
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, PARTIES
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.' 'K;-'AX, SAN.G" HlJ
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flcltoo Bank,.. N.A.
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UCC FINANCING STATEMENT AMENDMENT
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[J'etail report item #1 printed by: DOTTIE JIOF'FMAN on 2/22/01
===============================1======================~==~=================,
PENNSYLVANIA UCC DETAIL REPORT
llATA COVEIU\CE TIlF\O\I(;11
1'1':1\ IJ:" >' (](I 1
:;1-:1\]\1:1] C:OMI'j,[.:'
IT:n >'2, 21
( ) H : ~) ~~ f-\H ( C ~
----------.---- -------------
--------.-------.-----
------------.------------------------.------------ -
--------------------------------------------- ---
------
-------
Filing Location:
SECRETARY OF STATE OF PENNSYLVANIA
JOB NORTH OFfICE RUTWTNG
HARRISBURG, PA. 1710~i-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
EVALUATING ACTUAL OR CONTEMPLATED BUSINESS TRANSACTIONS INVOLVING THE BUSINE~
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 EXPERT
BE LIABLE FOR INDIRECT, INCIDENTAL, CONSEQUENTIAL OR SPECIAL DAMAGES RESULTI~
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.
..\'
. ., , <<;C.lY." r' 1
.' ".:
FORBEARANCE AGREEMENT
-m iL",/ '
This forbearance agreement ("Agreement") is made this 1L-. day of ~, 2005 by
and between Sang Ho Kwak, individually and d/b/a Say-Ford Supermarket aIkIa Sayford Supermarket
(hereinafter, Say-Ford Supermarket and Sayford Supemlarket will be referred to as "Say-Ford
Supermarket") and d/b/a Young's Food Market ("Mr. Kwak") and Mellon Bank, N.A., now by
assignment, Citizens Bank of Pennsylvania (the "Bank").
. WITNESSETH:
WHEREAS, on or about May 28,1999, the Bank made a loan to Mr. Kwak and Yon Hwa
Kwak ("Mrs. Kwak") Gointly, the "Kwaks") in the amount of $395,000.00 (the "Loan");
WHEREAS, the Loan is evidenced by a note and security agreement dated May 28, 1999 (the
"Note");
WHEREAS, in order to induce partially the Bank to make the Loan, the Kwaks executed and
delivered to the Bank a mortgage (the "Mortgage") on their improved real estate situate in the
Township ofFrankford, Cumberland County, Pennsylvania, as more particularly described in
Cumberland County Mortgage Book 1552, pages431 et seq. (the "Mortgaged Property");
WHEREAS, in order to induce partially the Bank to make the Loan, Mr. K wak, individually
and d/b/a Say-Ford Supermarket granted the Bank a security interest in, among other things, his
equipment, machinery, motor vehicles, furniture, fixtures, inventory, accounts and contract rights
(collectively, the "Say-Ford Collateral"), as evidenced by a security agreement (the "Say-Ford
646216.3
.
~
~
"
w
~
! (?
Security Agreement") and as perfected by certain UCC-l financing statements (the "Say-Ford UCC-l
Financing Statements");
WHEREAS, in order to induce partially the Bank to make the Loan, Mr. Kwak, individually
and d/b/a Young's Food Market granted the Bank a security interest in, among other things, his
equipment, machinery, motor vehicles, furniture, fixtures, inventory, accounts and contract rights
(collectively, the "Young's Food Market Collateral"), as evidenced by a security agreement (the
"Young's Food Market Security Agreement") and as perfected by certain UCC-l financing
statements (the "Young's Food Market UCC-l Financing Statements");
WHEREAS, Mrs. Kwak is deceased;
WHEREAS, Mr. Kwak defaulted under the terms of the Note for failing to make payments of
principal and interest when due;
WHEREAS, as a result of Mr. Kwak's defaulting under the Note, on or about December 2,
2004, the Bank confessed judgment against Mr. Kwak in the Court of Common Pleas of Cumberland
County at No. 04-6040 in the amount of$384,294.24, plus interest and costs (the "Confessed
Judgment");
WHEREAS, Mr. Kwak has informed the Bank of his inability to pay the Note, in accordance
with its terms, and has requested the Bank to enter into this Agreement relative to this one obligation
of the Kwaks to the Bank;
WHEREAS, Mr. Kwak and the Bank wish to enter into this Agreement without the Bank's
waiving any of its rights and remedies under the subject indebtedness, but in an effort to permit Mr.
646216.3
2
K wak the opportunity to resolve his financial difficulties and to arrange for the repayment of his
obligations to the Bank under the Note;
WHEREAS, in consideration of said forbearance, the parties hereto wish to enter into this
Agreement outlining the terms of the forbearance.
NOW, THEREFORE, intending to be legally bound hereby, and in consideration of tile
mutual terms and conditions hereinafter set forth, the receipt and adequacy of such consideration
being hereby acknowledged, the parties hereto mutually agree as follows:
1. Confirmation of Mr. Kwak's Indebtedness. Mr. Kwak hereby confirms and
acknowledges that he is justly and truly indebted to the Bank under the Note, without any setoff or
defenses thereto. There is due to the Bank under the Note as of March 23, 2005 the amount of
$298,840.40, consisting of principal in the amount of$297,289.47 and interest in the amount of
$1,550.93, accruing at the approximate per diem rate of $70.19. It is expressly understood that the
foregoing statement of indebtedness does not include accrued interest from March 14,2005,
attorneys' fees and costs, or other expenses which may be incurred by the Bank if the Bank fmds it
necessary to exercise its rights or remedies under the Loan Documents (as hereinafter defined). It is
further expressly understood that the aforesaid amounts shall be included in the indebtedness due to
the Bank from Mr. Kwak.
2. Confirmation of Loan Documents. Mr. Kwak hereby acknowledges and agrees that
the information contained in the above-referenced recitals is true, accurate and complete, and further
ratifies, confirms and acknowledges that all loan documents (the Note, the Mortgage, the Say-Ford
Security Agreement, the Young's Food Market Security Agreement, the Say-Ford Financing
&46216.3
3
-_._----_.-._._--~---- ~
Statements, the Young's Food Matket Financing Statements, and any and all addenda or supplements
thereto, and other related documents executed by the K waks, or either of them, and delivered to the
Bank (hereinafter collectively referred to as the "Loan Documents")) concerning the indebtedness as
referenced hereinabove and the Confessed Judgment are valid, binding and in full force and effect as
ofthe date hereof, and that the Kwaks have no defense, setoff, counterclaim or challenge against the
payment of any and all sums owing under the terms of the Loan Documents or the enforcement or
validity of any of the terms thereof.
3. Re-affirmation of Certain Collateral. Mr. Kwak hereby confirms and re-affirms that
the equipment listed on Schedule A hereto is part of the Say-Ford Collateral and/or the Young's Food
Market Collateral and is subject to a perfected, first lien security interest in favor of the Bank. Mr.
K wak further agrees not to move any or all of the equipment set forth on Schedule A from the
location set forth on Schedule A without first obtaining the express, written consent of the Bank,
which consent may not be umeasonably withheld. Mr. Kwak also agrees not to sell any of the
equipment set forth on Schedule A without first obtaining the express, written consent of the Bank,
which consent may be withheld for any reason.
4. Payment of Indebtedness. On or about December 29, 2004, Mr. Kwak paid the Bank
$30,000.00, for all past due payments, late charges, attorneys' fees and costs due under the Note and
in consideration for the Bank's agreeing to enter into this Agreement. On or before April 1, 2005,
Mr. Kwak shall pay the Bank a principal and interest payment of$3,923.6s. On or before May 1,
2005, Mr. Kwak shall pay the Bank a principal and interest payment of $3,923.65. On or before June
1,2005, Mr. Kwak shall pay the Bank a principal and interest payment of$3,923.6s. On or before
646216.3
4
July 1, 2005, Mr. Kwak shall pay the Bank a principal and interest payment of$3,923.6s. On or
before August 1,2005, Mr. Kwak shall pay the Bank a principal and interest payment of $3,923.65.
On or before September 1, 2005, Mr. K wak shall pay the Bank a principal and interest payment of
$3,923.65. On or before October 1,2005, Mr. Kwak shall pay the Bank a balloon payment of all
principal, interest, late charges, attorneys' fees and costs, if any, then due under the Note.
5. Forbearance Term. The Bank hereby agrees to forbear from exercising the rights and
remedies available to it as a result of the defaults which have occurred prior to the date hereof until
the earlier of October 1,2005 or an Event of Default (as hereinafter defined).
6. Interest. Interest will continue to accrue on the outstanding principal balance at the
contractual rate set forth in the Note.
7. Financial Statements. During the term of this Agreement, Mr. Kwak shall, upon
request, provide any and all financial information the Bank may so request from time to time,
including, but not limited to, a copy of his most recently filed federal income tax returns and current
fully-executed financial statements.
8. Events of Default. The occurrence of anyone or more of the following is an Event of
Default hereunder:
a) Mr. Kwak fails to observe or perform each and every provision of this Agreement, the
Note, and any other loan documentation relative to the obligations of the Kwaks,
including, but not limited to, the failure to make the payments as provided herein;
b) Mr. K wak files a petition under any provision of federal or state bankruptcy,
insolvency, moratorium or similar law, or such petition is filed against him;
646216.3
5
-J---
c) Mr. Kwak misrepresents any warranty or representation given hereunder or
misrepresents any material fact hereunder.
9. Forbearance by Bank. In consideration of this Agreement, the Bank hereby agrees
that during the term of forbearance it shall take no action to collect its collateral or to enforce the
within obligations or the underlying obligations so as to provide Mr. Kwakwith an opportunity to
resolve his financial difficulties as set forth herein. Said forbearance is conditioned upon Mr. Kwak's
complying with this Agreement.
10. Binding Effect. This Agreement shall be binding upon the parties hereto, their
executors, administrators, heirs, successors and assigns. Mr. Kwak shall not have the right to assign
his rights hereunder without prior written consent of the Bank.
11. Inspections and Appraisals. Mr. Kwak hereby grants to the Bank the right at any time
and from time to time to conduct inspections and/or appraisals of any or all of its collateral, including
the Mortgaged Property, the Say-Ford Collateral and the Young's Food Market Collateral.
12. Governing Law and Venue. This Agreement shall be governed, construed and
enforced in accordance with the laws ofthe Commonwealth of Pennsylvania. Any and all disputes
hereunder shall be commenced and resolved in any ofthe courts of common pleas of Pennsylvania.
13. No Waiver or Novation. Nothing herein contained and no actions taken by the BarJk
herein or in connection herewith shall constitute or be deemed to be a waiver or release of any default
by Mr. Kwak of his obligations, or of the security interests, rights, remedies or privileges afforded to
the Bank thereunder. Nothing herein shall constitute a waiver by the Bank ofMr. Kwak's
non-compliance with the terms of his obligations, nOT shall anything contained herein constitute an
646216.3
6
agreement by the Bank to enter into any further agreements with Mr. Kwak. Neither this Agreement
nor any other documents to be executed in connection herewith is in any way intended to constitute a
novation of or a waiver of any ofthe underlying obligations. The Note and any and all other
agreements in writing between Mr. Kwak and the Bank shall remain in full force and effect. In the
event of any inconsistency between the terms cfthis Agreement and the terms of the Loan
Documents, the terms of this Agreement shall prevaiL All other terms, conditions and covenants set
forth in the Loan Documents, except as expressly modified herein, remain unchanged and in full force
and effect.
14. Extension. Nothing herein shall be construed as a representation or warranty by the
Bank that the forbearance term granted herein shall be extended or renewed and the parties hereto
confirm and acknowledge that no further extensions or renewals have been promised.
IS. Time. Time is of the essence of each provision ofthis Agreement.
16. Construction. The parties acknowledge that each party and each party's counsel have
reviewed and revised this Agreement and that the normal rule of construction to the effect that any
ambiguities are to be resolved against the drafting party will not be employed in the interpretation of
this Agreement or any amendments or schedules hereto.
17. Release. Mr. Kwak hereby waives and releases the Bank, its officers, employees,
agents, representatives, attorneys and directors and their executors, administrators, heirs, successors
and assigns from any and all claims, causes of action, set-offs, recoupments, actions, debts, damages,
liabilities and expenses which they may have against the Bank in connection with the Note, any
&462\6.3
7
action or inaction of the Bank or in any way related to the Loan Documents and/or the negotiation of
this Agreement.
18. Voluntary Agreement. Mr. Kwak represents and warrants to the Bank that (i) he is
represented by legal counsel of his choice in regard to the transaction provided for in this Agreement
and that such counsel has explained to him the significance ofthe terms, and the full meaning and
effect ofthis Agreement; (ii) he is fully aware and clearly understand all of the terms and provisions
contained in this Agreement; (iii) he has voluntarily, with full knowledge and without coercion or
distress of any kind, entered into this Agreement and the documents executed in connection with this
Agreement; (iv) he is not relying on any representations either written or oral, express or implied,
made to them by the Bank other than as set forth in this Agreement; and (v) the consideration
received by Mr. Kwak to enter into this Agreement and the arrangement contemplated by this
Agreement is fair, reasonable, equitable, actual and adequate.
19. Modification. This Agreement may not be modified except by a writing executed by
the parties hereto with the same formality as this Agreement.
20. Gender and Number. Unless otherwise specified, the masculine shall include the
feminine and the neuter and vice versa. The singular,shall inc1ude.the,pluraLandvice versa.
21. Additional Instruments. Each party shall, at the request of the other party, execute,
acknowledge and deliver whatever additional instruments may be required in order to accomplish the
intent of this Agreement.
22. Invalidity. In the event anyone or more of the provisions contained in this
Agreement shall for any reason be held to be invalid, illegal or unenforceable in any respect, such
646216.3
8
,
. ~---- ---- ----~-----_._----_...-
invalidity, illegality or unenforceability shall not affect any ofthe provisions of this Agreement, and
this Agreement shall be construed as if such invalid, illegal or unenforceable provisions had never
been contained herein.
23. Counterparts. This Agreement may be executed in identical counterparts which
together shall constitute a single agreement.
24. Complete Agreement. This is the complete agreement and there is no written or oral
understanding or agreement directly or indirectly connected with this Agreement that is not
specifically incorporated herein by reference.
25. Waiver of Jury Trial. Mr. Kwak and the Bank irrevocably, as an independent
covenant, waive jury trial and the rights thereto in any action or proceeding between Mr. Kwak
and the Bank.
IN WITNESS WHEREOF, Mr. Kwak and the Bank, intending to be legally bound hereby,
have executed this Agreement the day and year first above written.
WITNESS:
~, c.{.I--
(---.) .,1
!t~/
MELLON BANK, N.A., now by assignment,
CITIZENS B OF PENNSYL VANIA
ATTEST:
/
BY:
646216,)
9
COMMONWEALTH OF PENNSYLVANIA
SS:
COUNTY OF LUZERNE
Oft.
ON THIS, the 1L day of
jf} f1e I I
,2005, before me, the undersigned officer,
personally appeared Joseph E. Sweeney, who acknowledged himselfto be Assistant Vice President of
Citizens Bank of Pennsylvania, and that he, being authorized to do so, executed the foregoing
instrument for the purposes herein contained by signing the name of Citizens Bank ofPennsylvanii:l.,
by himself, as Assistant Vice President.
IN WITNESS WHEREOF, I have hereunto set my hand and notarial seal.
COMMONWEALTH OF PENNSYLVANIA
Notarial Seal
Jane A. Muscavage. Notary Public
City Of Wilkes-Barre. Luzeme County
My Commission Expires Nov. 3. 2007
Member, Pennsylvania Associahon Of Notaries
~ ~~~/~
N~ Y LIC .
COMMONWEALTH OF PENNSYLVANIA
SS:
COUNTY OF
ON THIS, the ~ day of -1lpr I \
,2005, before me, the undersigned officer,
personally appeared Sang Ho Kwak, known to be (or satisfactorily proven) to be the person whose
name is subscribed to the within instrument, and acknowledged that he executed the same for the
purpose therein contained.
IN W lTNESS WHEREOF, 1 have hereunto set my hand and notarial seal.
~'
LQMy\{',/,A,-1 y /\
NOTARY PUBLIC l
6462163
COMMONWEALTH OF PENNSYLVANIA
Notarial Seal
Rhonda fleffeffinger, Notary Public
City Of Hanisburg, Dauphin County
My Commission Expires Apr. 22, 2008
Member, Penns~llvanja Association Of Notaries
SCHEDULE A
Savford Market Secured EauiDment
Sharp ER-A330 Cash Register
TEL SL 9000
Casio PCRT 2000 Cash Register
Mega Refrigerator Unit
Panasonic KX-FP121 Fax Machine
Pre Fab 10 x 12 Walk In Cooler
Bunn Coffee Maker VPS Series
Hobart Meat Tenderizer
Power Cooler 2 Door
Bird Meat Cutter
Beverage Air Deli Cooler
Heat Sealer 20 Inch
True Deli Bar Refrigerator
Berkel Meat Slicer 3340
Hussman Meat Cooler Displays (3)
Berkel Meat Slicer 919/1
Tafco Pre Fab Walk In Freezer 12 Door
Eastern Mfg. Checkout Computer
System
(1) Master Computer
(2) Check Out Stations
Tafco Pre Fab Walk In Cooler 12 Door
Whirlpool Range
YounQ's Market (Newville. PAl Secured Equipment
Powers Sliding Cooler with butcher top cover, Ser. No. B947-556
rv1igdi Deli Case with Bottom Refrigerator, Ser. No. 894004
21/2 x 3' Tappan Chest Freezer
Sturdi-Bi/t up Draft and Exhaust Fan
30" Comstock-Castle Stove, Ser. No. 7MM420
Castle Pizza 2-Shelf Oven, Ser. No. 6MM128
Westy Cash Register Sanyo, Ser. No. 63404445
Slicer Model 919-1. Ser. No. 9365-1151-09830
,
/'
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~_______ . // c". ,.;-
SANG HO KWAK
/
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Sworn to and subscribed before me
this l +h day of A p r I \
.2005.
COMMONWEALTH OF PENNSYLVANIA
Notarial Seal
Rhonda Heffelfinger, NotaJy Publk:
City Of Hanisburg, Daupl1in County
My Commission Expires Apr. 22. 2008
Member, Pennsylvania Association Of Notaries
\1' )
kk.)'I'{\flA'-
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.
,Ii {./
/
677409.]
"
'.
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
n
c
r->
C:::l
C:'J
(J1
SANG HO KW AK, individually and d/b/a
Young's Food Market, and YON HW A KW AK
1307 N. 3'd Street
Harrisburg,PA 17102,
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-n
.....
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c-:,
;',)
, r,
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Defendants
NO.
.,:.,:-<. ~..i."_ 'on
05 - 11 d- / ;;;'v;. .'/~ ::~'
.'b urr:r'l
-( -.J ":<.
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:
On even date herewith, the plaintiff is filing a complaint in replevin against the defendants. (A true
and correct 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.")
677411.1
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.
,~S-
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: j/Jy'r>'1 2(, ,2005
677411.1
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 information and
belief. I understand that this verification is made subject to the penalties of 18 Pa.C.S.A. S 4904 relating
to unsworn falsification to authorities.
/>..
677412.1
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
OF CUMBERLAND COUNTY
Plaintiff
vs.
CIVIL ACTION -- LAW
REPLEVIN
SANG HO KW AK, individually and d/b/a
Young's Food Market, and YON HWA KWAK
RD#3, Box 672
Newville, PA 17241,
Defendants
NO.
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:
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 1,8711-0101.
2. Mr. Kwak is an adult individual with a last known address of2208 Chatham Way, Harrisburg,
PA]711O.
3. Upon information and belief, Yon Hwa Kwak is deceased.
677402.1
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, "Young's Collateral"), as evidenced by a security
agreement (the "Security Agreement") and as protected by certain UCC-l financial statements (the
"UCC-I 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 of the Note by failing to make monthly payments of
principal and interest due under the Note.
8. As a result ofMr. Kwak's default under the terms of the Note, the Bak and Mr. Kwak
entered into a forbearance agreement dated April 12, 2005 (the "Forbearance Agreement"), upon the
terms and conditions more particularly set forth therein. (A true and correct copy of the Forbearance
Agreement is attached hereto as Exhibit "c" and incorporated herein by reference.)
9. Mr. Kwak defaulted under the terms of the Forbearance Agreement by failing to make
payments of interest due under the Forbearance Agreement.
677402.]
2
10. The fair market value of the Young's Collateral is unknown, but is believed to be less
than the amount due and owing the Bank by the Kwaks under the Note.
11. The Bank believes and therefore avers that Mr. Kwak has possession of the Collateral.
12. Mr. K wak has failed and refused, despite repeated demands by the Bank, to pay the
balance due under the Note or to deliver possession ofthe Collateral to the Bank.
13. The balance of the Note as of August 8, 2005 was $296,891.95, consisting of principal in
the amount of$291,949.92, accrued interest in the amount of$4,706.61, and late charges in the amount
of$235.42, 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$296,891.95, plus interest from August 8, 2005, 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,
HOURl~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
Telephone (570) 287-3000
~:~~~iA~:':~~ 2~7:8005
I
,2005
677402.1
3
:::lii;i!~~~!!llfll!lr"lll
.- - .:. ".-:-.- --.:-;-.~ :,:~.:.:.;.:.:-;.;-:-'-:';, ::::::::::;;::::;:{:;:::;:r;::::;::::::::::::::~:::~:;::::::~:;:::}:::~:~:::;:;::::::.:.., -,-
$ 395,000.00
Promiso To Pay. FOR VALUE RECElVED,arid inlcnding to be legally
bound, Undersigned, as defined below, promises 10 pay to:
Mellon Bank, N.A.
("llank") or its order at .
Harrisburg, Pennsylvan1a
the sum of
Three Hundred Ninety Five Thousand and
00/100
Dallal> ($ 395 , 000 . 00 ), :with intercst on the
outstanding balance from the date of: this Promissory Note
("Note') at the rate(s) ('Contractual Ralqs)') and in accordance
with the repayment schedule spcctfied belqw.
Contractual Rato(s),' Repayment Schedules. :
D Interest at a rate per annum;which is %
above Bank's Prime Rate, such rate to ch;lnge from time to time
as of the effective date of each announced change in such Prime
Rate, shall be paid when principal payments are. due. Principal
shall be paid in consecutive I\lOnthly mstallments of
$ each, commencing pn ,
and continuing thereafter on the l day of each month
with the balance of the indebtedness, if nilt 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,
shall be paid when principal payments an! due. Principal sball be
paid in con=tive md,nthly insta~ents of
$ each, I commenCIng on
. and continuUl.ll thereafter on the
day of each month willi the balance of the
indebtedness, if not sooner paid" que and payable on
,
I
'. l .
D The principal balance ~etl"'f, together WIth all
accrued and unpaid interest, shall be paid on ,
and interest at a rate per annum whicb. 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 eachj month commencing on
, ,
: ,
I
D The principal balance ht' ~ together with all
.accrued and unpaid interest, sball 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
effective date of eaeh change in or resctti~ of the CD Rat~, shall
be paid on the day of each tOnth commenclOg on
. ,
,
D In no event shall the rate charged I' on this Note exceed
. % per annum. I
D ,The principal balance h~eeof' together with all
accrued and unpaid interest, shall be pal- on .
and interest at the rate of % annum shall be paid
on the day of each m th commencing on
. I
IX! ~ '5' A'" ~!&crcst shall be calcu~ted at the rat,: ?f
R c;n % per annum. Principal and f1ter~t shall be paid In
f7q 'consecutive monthly '~Ilments of
$ 3.CJ?3.IiS each,co .
~
"
'"
"'
~
~ .4
ate Iq
..:~-- pi/'ll
07/01/1999 , and continuing thereafter on the 1ST
d.1Y or each month with lhe halance of the indeblcdnc....<i, if not
WOllcr paid, dlle and payable on 06/01/2014 . During any
period that the Contractual Rate(s) is reduced by 0.25% pcr
annum, 3!'i described el:)CWhere in this Note. installmcnl~ of
principal and interest shall instead be in the amount of
$ 3,864.70 cacho If the reduction in the Contractual
Ratc(s) i!'i no longer in effcct, the amounl of installment~ of
principal and interest shall return (0 and be the same as the amount
of such installments prior to the reduction in the Contrnctual
Ratc(s).
Undel>igned shall pay Bank concurrently with the execution and
delivery hereof, or Undel>igned previously has paid BanI:, an
origination fee of S 3,950.00 ,to compensate Bank
for its undetwriting, origination and administration of the loan
evidenced by this Note. This fee shaD be deemed fully earned by
Bank on the date herco~ sball DOl be refunded, and is in addition
to any other fees, costs or expenses which may be due and payable
bereunder.
Unless Undersigned has authorized Bank to take payments out of
a Mellon O1eclcing Account, as set forth below, Undecsigned will
mail or deliver to Bank the amount billed by Bank each month.
Undel>igned will mail or dcIivec the payments so tbat B~nk
receives all payments no I~ter than the due date shown on each bill.
D 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 O1ccking Account
Number . titled in tbe namc(s) of
. on or
after the ' day of each niotith. Undersigned will keep a
sufficienlbalance in this aCCOUnt ti; covecthe full amounts of all
required payments. At, its option, Bank may terminate
Undel>igned's ability to use this service.. This authorization shall
remain in effe<:t 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 ~aturity, while, this authoriza~ion is in eff~ an~
provided that Undersigned keeps a suffiCient balance In thIS
account to' cover -the full amounts of aU required payments, the
O:mtractual 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 vemons ofUndersigned's name.
If the .original principal amount of this .Note .is in excess of
$ to,OOO.OO, or if U !ldersigned is a corporation, '!'terest 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 not a COrporation, intc:cest 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
feom time to time by Bank as its Prime Rate. The Prime Rate may
be greater or less than othe~ interest rates charged by Bank to
othec borrowers and is not solely t;>>ased or dcpend<?nt upon the
interest rate which Bank may charge any particular borrower or
class of borrowers.
It a single certificate of deposit is held by Bank as collateral security
for the indebtedness evidenced by this Note, as, more ~lIy
described in the Assignment of Deposit Account cxpress~y refcmng
to this Note, :CD Rate' sball meaD: Ibe interest rate patd by Bank
on such ccrtifiqte of deposit (the '~ir""!te'), said CD Rate to be
';;'" Page 1 of 5
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reset by Bank at each renewal of the ec.iiflcate. If more than one
certificate of deposit is held by Dank as collateral security for the
indebtedness evidenced by this Note, a< morc fully described in the
AS-'iignmcnt(s) of DCfXJsit Account expressly referring to this Note,
"CD Rate" sh<lll mean the highest of the interest rales. paid hy Bank
011 such ccrtillGltcs or deposit (the "Certificates"), said CD lZ~llC 10
be reset at each renewal of each Certificate.
Lata Charga. If any payment (including without limitation any
regularly scheduled payment, balloon payment or final payment) is
not paid within 15 calendar days ancr it is due, Undersigned will pay
a lalc charge of the greater of $25.00, or three percent (3%) of Ihe
unpaid portion of the scheduled payment due (regardless of whether
the payment due consists of principal and interest, principal only or
interest only). Such late charge shall be in addition to any increase
made to the Contractual Ratc(s) applicable to the OUl$tanding
balance hereof as a result of maturity of this Note or otherwise1 as
well as in addition to any other applicable fees, charges and cosl$.
Dolau# Rato(s); Post-Maturity Rato(s). Upon the occurrence. of
any Event of Default (as defined in this Note), at Bank's option,
interest shall accrue at a rate equal to twO perrent (2%) per annum
above the Contractual Ratc(s) untiIthe earlier of the date that such
Event of Default has been cured or until and induding the date of
maturity hercoL
After maturity, whether by acceleration or otherwise, interest shall
accrue at a rate equal to two percent (2%) per annum above the
Contractual Ratc(s) until all sums due hereunder are paid. Interest
shall rontinue to accrue after the entry of judgment (by confession or
otherwise) at the Contractual Ratc(s) until all sums due hereunder
and/or under the judgment are paw, except that after maturity or J at
Bank's option, upon the occurrence of any Event of Default., interest
shall accrue at a rate equal to twO percent (2%) per annum above
the Contractual Ratc(s).
Books and Records; nme of Essence. So long as Bank is the
holder hercof; Bank's books and records shall be presumed, except
in the case of manifest error, to accurately evidence at all times aU
amounts outstanding unt;ler t~is Note and the date and amount of
each advance and payment made pursuant hereto.
The prompt and faithful performance of aU of Undernigned's
obligations bereunder, induding without limitation time of payment,
is of the essence of this Note.
Security lotef'est. Setoff and Assignments. To secure aU amounts
- at any time owing or payable under this Note and Undersigned's
obligations hereunder, as well as t.o secure aU costs and expenses
incurred by Bank in the collection or enforcement of this Note or the
'protection of any collateral securing this Note (induding without
limitation aU advances made by Bank for taxes, levies. insurance,
filing fees, and repairs to or maintenance of said collateral),
Undersigned hereby grants to Bank: a security interest in, lien UJX'D,
and right of sctoff against, all deposit accounl$, eredil$, securities,
moneys, or other property of Undernigncd which may at any time be
in the possession of, delivered to. or owed by Bank, induding any
proceeds or returned or unearned premiums of insurance, and the
proceeds of all the foregoing property. Other property, real or
personal, may secure this Note, as set forth in other documenl$ and
agreements.
Undersigned acknowledges and agrccs that Undersigned .hall
renew. or cause to be renewed, the Certificate(s), if any. until the
indebtedness evidenced by lhis Note has been paid in fulL
Undersigned further agrees that Undersigned wilt cxocutc. or win
cause to be executed, upon demand by Bank any financing
statements or other documents. induding. without limitation.
additional Assignments of Deposit Account, wbich Ilartk may deem
necessary or desirable to evidence, perfect or maintain perfection of
the security interesl$ ereated in the Certificate(s) and any renewals,
replacements and substitutions theceo(.
Additional Tenus and Conditions
I. Covenants. Undersigned rovenaots and agrees that until all
indebtedness evidenced hereby has been paid in full, Undersigned
shall: (a) maintain at all times a positive tangiblc net worth; (b) (I)
h:.wc all EnvlTonmcn1al Permits necessary lor Ihe conduct of each
of Undcrsisncd's hu.sincs...~s and opcr~ltions] (2) conduct each 01
Undersigned]s businesses and operations in material compliance
with all applicable Environmental Laws and Environmental
Pcr_mi~s, (3) nol pc~mil to exis.l 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, rcmechation or the like in an aggregate amount, the
payment of which rould reasonably be expected to interfere
substantially with normal operatioos of Undernigned or materially
adversely affect the !inan~ condition of Undersigned, (4) notify
Bank promptly upon becoming aware of any pending or threateued
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 a.ffiliates, is
likely to cause Und=igned 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, documentatioo, copies of pleadings and other
information regarding lbc above, all in form and content
satisfactory to Bank; (c) conduct each of Undersigned's businesses
and operation:; in material compliance with all federal, state or local
13vr.;, statutes. regulations, rules. ordinances, court or administrative
orders or decrees, or private agreements or interpretatioos, 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 pucpose(s) specified to
Bank at or prior to the execution hereof; (e) promptly notiJy BanIc
in writing of any change in Undersigned's =idence or Chief
Executive Office; (1) purchase and maintain policies of insurance
(mcluding 11000 insurance) to protect against such risks and
casualties, and in such amounts, as sIia11 be. required by Bank:
and/or applicable law, which policies sbaII (1) be in fonn and
substance satisfactory to Banlr, (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 a=pted accounting principles applied on a consistent
basis in which full, true and correct entries shall be made of all
U ndernigned'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 inoome tax
returns, invento!)' reports (including a description of raw materials,
finished goods, and the aging thereof; as appUcable), 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 Undernigncd's properties and locations and to
examine il$ books and rCcords and discuss the affairl;, finances and
accouuts of Undernigned with representatives thereof, as often as
Dank may request; (h) provide additional collateral at such times
and having such value as Bank may request, if Bank shaU have
reasonable grounds for believing that the value of the oollateral
securing the indebtedness evidenced by this Note has becOme
insuffidClltlo secure said indebtedness; (i) pay, upon de013nd by
Dank, (1) all cosl$ and fees pertaining to the filing of any financing,
continuation or tennination statements, mortgages, satisfaction
pieces, judgments and any other type of document which Bank
dcems n=ry or desirable to be fded with regard to =rity
interests wl1idt =re tI1c, indebtedness evidenced hereby,
regardless pf whcther such ~rity interests were granted by
Und=i~and (2) all COSlS an<f~ incUrred by Bank in
.'. Page2of5
- ~_~i..'
c.Jnnection with any collaleral securing this Nole (induding without
Hm{l3lion all 2.dvanccs made by Bank. for laxcs, levies, insurance,
repairs to or maintenance of said collateral, appraisal or valuation
of &.'1id coHatcrat, and dClcrmina1ion of flood h;u..ard), rcgard\cs-<; of
whether such collateral is OYlllcd by Undersigned; and 0) pay, upon
demand by Bank, aU amounts incurred by Bank in connection \\i\h
.allY action or proceeding laken Of commenced by Bank to enforce
or collect this Note, including attorney's fces c.qu31 to the 1esser of
(1) 20% of {he outstanding principal halancc and intcrest (hen due
hereunder or $500.00, whichever is grc.atcrt or (2) the maximum
amount permiHed by law, plus aHomey's costs and all costs of Icgal
proceedings.
2. Events of Default The occurrenCC of any of the following shall
constitute an 'Event of Default' hereunder: (a) default in payment
or performance of any o( the indebtedness Of obligations evidenced.
by this Note or any other evidence of liabilily of -Undersigned 1O
I3ank; (h) the breach by any Ohligor (defined as Undcrnigned and
each surety or guarantor of any of Und=igncd's liabilities to I3ank
as well as any person or entity granting Bank a security interest in
property to SCaJre 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 agreemen~ or
the discovery by Bank of any false or misleading representation
lI13de 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 partnernhip or
corporation; (d) any assignment for the benefit of ereditorn by any
Obligor; (e) insolvency of any Obligor; (I) the filing or
commencement of any petition, action. case or proceeding,
voluntary or involuntary, under any stale or federal law regarding
baOIcruPtcy, insotvenc:r, reorganization. receivership or dissolution,
including the Bankruptcy Reform Art of 1978, as amended, by or
against any Obligor; (g) default under the tenns of any Icasc of or
mortgage on the premises where real or pe=na1 property securing
the indebtedness evidenced by this Note is located; (11) the
garnishment, tax assessment, attachment or talJng by
governmental authority or other tteditor of any property of any
Obligor which is in Bank's possession at which coostitutes security
for any indebtedness evidenced bereby; (i) entry of judgment
against any Obligor in any court of rcoord; (j) the assessment
against any Obligor by the 'Internal Rcvcnue Service or any other
federal, state or local taxing authority of unpaid taxes, or the
issuance of a Ie\)' 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
Banle, 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 lor tbe indebtedness evidenced
by this Note by rcason 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 auy applicable grace
period.
3. Acc8!er9.tion; Remedi8S. Upon the occurrence of any Evenl 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 Banle, without any demand or
notice whatsoeVer; and (h) Dank lI13Y immediately and without
demand exercise any of its rights and remedies granted herein,
under applicable law, or which it may otherwise have, against
UndetSigned or otherwise. Notwithstanding any provision to the
contrary contained herein, upon the occurrence of an Evcot of
Default as dcscribe,fln Section 2(t) hereof, aU amounts due under
this Note, including W",,)ut limitation the unpaid balance of principa
and interest hercof, shall become immediately due and payable
wilhoot any demand, notice or further action by Bank whatsoever
and an action therefor sh;tll immediately accrue_
4. Bank"s Rights. Undersigned hcrdl)-' authorizes Hank, and nan~
shall hav~ the c<~nllnuing ri~hl, at i!s sole ?ptiOrl and di~rc(ion, (0: (.(
do anythmg WhlCh UndersIgned lS requIred but fails to do and ir
par1i~1ar Dank. may, if Undc~sign~ fails (0 do so, ohtain and' p.'y an)
prcmmms p:lyablc on any pohey of msurancc required to be oblained
or maimained hcrcundcr; (b) dircct any insurer to make payment 01
~my insurance proceeds, including any returned or uncarncC
premiums, directly to Dank., and apply such moneys lo an)
indebtedness or other amount evidenced hereby in such order Q[
fashion as Bank may elect; (c) pay the proceeds of the toan evidenccc
by this Note to any or a\l of the Undersigned individually or jointly, 01
to such other person(s} as any of the Undersigned may direct, exccpt
to the extent otherwise provided in Section 6 hereol; and (d) add an)
amo~nts paid or incun:ed. by Bank under Section l(i), Section 1(j) 01
Section 4(a) to the pnnapal amount of the indebtedness evidenec<J
by this Note.
5.~Z8tion to BoITow. UndetSigned hereby represents, warrants,
certifies and covenanlS as follows:
(a) If Und=igned is a corporation, that the pcrson(s) signing belm<
hold(s) the office(s) indicated below (and continue to hold such
oflke(s) until Bank has received notiee to the eontrary in writing
from Und=igned), and that the Board of Directors of Undersigned
bas adopted resolutions providing that: (1) tbe person(s} executing
and delivering this Note on behalf of Undersigned isfare authorized
(i) to incur indebtedness and obligations on behalf of UndetSigned by
borrowing or making other financial arrangements with Bank !rom
time to time, upon terms and conditions as they in their sole
discrelion deem desirable, [oJ to make, execute and deIi\ter
promissory notes, letter of eredit agreements, security agreements,
assignments, mortgages and all other documents required by Bank in
connection with the incurring of ind~edness or obligations, and (Iii)
to assign and pledge as collateral security for any sueb indebtedness
or obligations, now or bereafter existing, any real or personal
property of Undersigned; (2) the actions of anyone or more officers
of Undersigned In borrowing money !rom Bank heretofore for the
account of Undernigned, in assigning or pledging any at
Undcrnigncd'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 Danle, and shall be binding upon Under.;igned until a
resolution amending them shall have been duly and legally adopted
and Bank furnished a certified copy thereof.
(b). If Undersigned is a paitnernhip, that (1) Undersigned's name
sbown below is a trade name of Undersigned's firm used in tbe
conduct of an unincorporated business O\imed entirely by the persons
signing this Notc on behalf of said partnership; (2) the partncn
executing and delivering this Note arc authorized (i) to incuI
indebtedness and obligations on behalf of Undersigned by borrowing
from or making olher financing or credit accommodations with Bank
from time to lime, upon such terms and conditions as they in theh
sole discretion deem desirable, (ii) to make, execute. and deliver
promisSory nOles, letter of credit agreements, security agreements
assignments, mortgages and all other documents required by I3ank in
connection wilh the incurring o( indebledness or obligations, and (iii~
to assign and pledge as collateral security for any such indebtedn"",
or obligaliOnS: :~'ii6w or hereafter exisling, any real or pc.rsana~
property of Undersigned; (3) the actions of anyone or morc partners
of Undersigned in borrowing money from Dank heretofore for th,
account of Undernigned, in assigning or pledging any 0
Undersigned's property for the. payment thereof, or in doing an]
other act in, connection therewith ..ar.e hereby ratified, oon!lm1ed, an<
approved; (4}notwithstanding any'l'nodification or tcnninatlOi1 of the
Page30f5
. '~\,.-'
c
powcr of any of the partncrn to reprcscmsaid rum, whether by
expiration of the partnership agreement. by death or retirement
of any partner, or the accession of onc or more new par1n~rs, or
othcrv.;sc, :Jl1d nOlwilhst3nding any other notice thereof Dank
may receive, this aUlhority shall continue lO be binding upon each
of the Undersigned individually and upon their leg:11
representatives, and Ura" Undersigned and its successors, unt((
Dank has received notice in writing to the contrary signed byone
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 10 Oank's receipt of such
notice.), <.Jnd (5) nothing herein sh.all be construed (0 limit the
righlS 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) UllCIenigned waives
(except where requested hereby) notice of action Iaken by Bank;
and hereby ratifies and confirms whatever Bant may do. Bant
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 shan be affected
thereby, and this Note shall be construed lIS if the invalid or
unenforceable provision had never been a part of it The
descriptive headings of this Note arc for oon'lCOience only and
sball not in any way affect the meaning. oc constru<:tion of any
provision hereof. (d) The rigbts and privileges of Bant oontained
in this Note :sha.D inure to the benefit of its suocessors and assigns,
and the duties of Undernigned shaD bind aD heirs, pemonal
repr=ntatives, 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 checl< which may be payable
to Undersigned in order to coUect 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 Bant and each
holder hercof as attorney-in-fact is irrevocable and is coupled
with an interest. (g) Undernigned assigns to Bant all moneys
which may become payable on any policy ofinsurance required to
be maintained under this Note, including any returned or
unearned premiunlS_ (h) "Environmental Law'" means any
federal. :state or local environmental law. statute, regulation, rule,
ordinance, court or administrative ordcr 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
SubslanCCS, or in any way relating to pollution or protection of
the environment Of public health. (i) "Environmental Permit"
means any federal, state or local pennit, license oc authorization
issued under Of in connection with any Environmental Law. CD
'Hazardous Substances' means petroleum and petroleum
products, radioactive materials, asbestos, radon, lead
containing materials, rewagc. or any materials or substances
defined as Or included in the definition of "hazardous wastes n
"ha1.aroous substances," "hazardous materials," "'toxic
substances," "hazardous air fXJllutanu," "toxic pollutants,"
"pollution," or terms of similar meaning, as those terms arc
used in any Environmcnlal law. (k:) "Chief Executive Office"
means the pl4\cc from which the main pari of the business
operations of 30 entity is managed. (I) "Undersigned" refers
individually and cottcctivcly to all makers of this Notc
including, in the case of any partnership, all general panners or
such partnernhip individually and ooIIcctively, whet\ler or not
sueh partnern sign below. Undernigued shal1 each be jointly and
severally bound by the terms hereof, and, witlt respect to any
partnernhip executing this Note, each geocral panner shall be
bound hereby both in such gencral partners individual and
partnernhip capacities.
7. Direc60n to Pay Proceeds.Undersigned hereby authorizes and
directs Bant to pay the proceeds of this Note by: ..
1I1creditingAccountNumher o[;('rEOzJ -11'11..jf{y U!.6/
!' in the name of /
5fl/IJ& liD ~OtJ Jlwfr KoJlt"
in the amount of$ I . 'ar
. I IJ.mR :0' 529 00 [;l.ii+/f1'j flIt//O'.
'{7Jpaying (lllj _ Ul'<, _ - ID/-rcJ?"-S-J"2-&Y:> _
/'\ Al"JL"'-3I.?G?~.3 J7/9' z.q"
the amount of S
~ying fjlfllr.F/ C fl L! <]6) 9'1- iR tf
the amount of S
8. Affidavit of Business Loan.(Ibis Affidavit is not applicable if
Undernigned is a corporation.) Undersigned, being duly
authorized, deposc(s) and say(s) under penalty of perjury that
Undernigncd:, '
(a) WAre engaged in business aslXl Owner(s), 0 General
Partncr(s) of: (name and nature of husiness)
YOUNG'S FOOD MARKET J\ND
SAY-F<fI? SUPERMARKET H_yf......
FOOD MARKET
(b) Hereby make(s) application 10 Bank for a loan, the
proceeds of which will be utiliz<:d for the purposc(s)of
REFINANCE MELLON DEBT, OTHER DEBT
CONSOLIDATION & EQUIPMENT & INVOICE
PURCflASE
(e) Exercisc(s) actual control over the managerial decisions of
the business..
(Remainder of page intentiQnally len blank)
-.~(' Page 4 of 5
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9. Confession of Judgment. UNDERSIGNED HEREBY
EMPOWERS THE PROTImNOTARY OR ANY
ATTORNEY OF ANY COURT OF RECORD 1D APPEAR
FOR UNDERSIGNED AND TO CONFESS JUDGMENT
AS OFTEN AS NECESSARY AGAINST UNDERSIGNED
IN FAVOR OF 11112 HOLDER HEREOF, REGAlmlESS
OF WHETHER ANY EVENT OF DEFAULT liAS
OCCURRED, AT ANY TIME AND AS OF ANY 1TIRM,
FOR TIlE OUTSTANDING PRINCIPAL BALANCE
HEREOF PLUS INTEREST DUE UNDER TIlE TERMS
HEREOF AND ALL OTIffiR AMOUNTS DUE
HEREUNDER, 1DGETIIER WfIn COSTS OF LEGAL
PROCEEDINGS AND AN A1TORNEY'S COMMISSION
EQUAl. TO 'llIE LESSER OF (A) 2D% OF TilE
OUTSTANDING PRINCIPAL BALANCE ANI)
INTEREST '11IEN DUE HEREUNDER OR $SOOOO
WlIICHEVER IS GREATER, OR (B) 'llIE MAXiMln1
AMOUNT PERMI1TED BY LAW, wm~ RELEASE or-
ALL ERRORS. UNDERSIGNED WAlVES ALL LAWS
EXEMPTING REAL OR PERSONAL PROPERTY
FROM EXECUTION,
By signing this Note, Undersigned agrees 10 alllerms of the Note and swears, under penalty of perjury (as set forth in
18 Pa.C.S. ~904, If governed by Pennsylvania law), to the Affidavit of nuslness Loan (If completed) set forth In
Section 80f this Note.
Ilig!i~i!,!!il'ljl!l~ll";;il!lll!r;;lllillll,'lil:!I!li111 filII I llllll! 1!!!I!!llilll I 1,1l!II!I:IIIIII'IJllllli I 1!I!j:llllil[,t'lllIitIJ~'I.'J;III;lllll'~il(tlltl'[11111II
Witness the due execution hereof under seal.
x
:"".~~
Mdlon B.nl<, NA
Mellon Bank: (DE) Na(ional Associa(ion
aASO R<v.(lotJ6) LC. 9f)6 ill 9f)6
071$ r 16<i-44-38Zl 1 d45-13 (01)
OSzm.lGOS
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. S FOOD MARKET AND
UPE-RMAitK:BT S"HY-F,,~~<...J .>;,'r,*D"1..:;~21('.21
672 B ERVILLE ROAD //
NEWVILLE, PA 17241 }'tL- )K..-
Individual:
~UN~AA iJvp ~~/~ (Seal)
672 LOSERVILLE ROAD
NEWVILLE, PA 17241
....'-.",
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Page 5 of5
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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
i~7~~~ ~:~v~~r ~D
SAY-F SUPERMARKET V
('Borrower(s)'), said obligation evidenced by a
PROMISSORY NOTE
,->--a-fii- "1'1
intending to be legally
dated
Undernigned,
follows:
, (the 'Note')
bound, hereby agrees as
1. Security Interest. Undernigned hereby grants to Bank a security
intercst in the following property now owned or hereafter aequired
by Undersigned:
(Certain terms used berein are defined in Section 13 below.)
li1I ~ 'f f(..) all equipment, wherever located, including
ma m ry, motor vebicles, furniture and fixtures;
li1I ~ )t:f;;lI inventory (whether held for sale or lease or to
be is 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;
"li1I ~Y~II accounts, contract rights, general intangiblcs,
chatt f, 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 securitics; 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;
o (e) all farm produets; and
o (I) all property or rights described below under the
caption 'Description of Collateral.'
DescriptioD of CoUateral (Give B sufficiently detailed description
to ide.ntify each item)4
!,
"
"
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~
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"
v~
In addition to the foregoing, Undersigned: (1) grants to Ban1c a
security intercst 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 intercst in all substitutions for, renewals
of, improvements, replacements and additions to, and the products
and proceeds (cash and non-<:ash) 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, securitics, 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-<:ash) 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 intercsts 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 intercsts 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 docs 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 C'Obligation(s)'): (a) all amounts at any time owing or
payable undlo( tbe Note, and any other indebtedness, liability or
obligation of Borrower(s) or of Undersigned to Bank, now existing or
V-::'fJP 1 nf'A
In addition to the rights given to Bank in this Agreemenl, Bank
shall have all the rights and remedies of a seeured 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 wbieh
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 eredit with Bank and until the Obligations seeured by
this Agreement shall have been paid in full: (a) each account: (1)
represents an amount aetually owing to U ndernigned by the
aCCilunt debtor (less discounts allowed for prompt payment); (2) is
valid and enforceable according to its terms without furlher
performance of any kind; (3) is not evidenced by any instrument or
chattel paper unless the original of such instrument or ehallel
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. AdditWnal Cove/ltVl/S. 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 Undernigned shall: (a) immediately notify Bank in
writing in the event that any of the following occurn: (1) any
account is or becomes entitled or eligible for discount for prompt
payment; (2) any account debtor has or =y 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 whieh 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 othcrwire; (b) keep accurate and complete books
and records in accordance with generally accepted accounting
principles and, at Undernigned's expense, promptly furnish Bank
sucb infonnation and documents relating to the Collateral at such
times and in such fonn and detail as Bank may request, including
without limitation: (1) copies of invoices or other evidence of
Undersigned's acrounts and schedules showing the aging,
identification, reconciliation, and collection thereof; (2) evidence of
shipment and receipt of goods and the performancc 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 ccrtified by authorized officern or
other employees of Undernigned; (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 aU proceeds of
accounts to Bank forthwith upon receipt, in the original fonn in
whieh 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 upori Banle's request, give the Bank assignments, in
form acceptable to Bank, of specilie 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 tenninated; (g)
immediately upon Bank's request, fumish Bank with all
information received by Undersigned regarding the financial
condition of any account debtor, except to the enent 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 Collaleral; and (i) immediately upon Bank's request,
mark its records evidencing its accounts in a manner satisfactory to
Banle so as to show which accounts have been assigned to Bank.
10. Additional Rights of Bank. In additioo to the Bank's rights set
forth elsewhere in this Agreement, Undersigned hereby authorizes
Banle, and Banle 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; (h) exercise absolute and exclusive
dominion and control over all funds deposited in the Cash Collateral
account; apply aoy funds therein against any Obligations; and charge
10 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
Undernigned's books and records, and copy or make excerpts from
any document; and (d) verify accounts with debtors in the name of
Undersigned, Banlc, or Bank's designee.
11. M'lScellaneousProvisions. (a) Undersigned waives protest of all
cominercial 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 ratilies 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 o:ercising 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. (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 aU heirs, personal representatives, successors and assigns.
(d) No modification of this Agreement, nor any waiver of any
provision hereof, shaU be effectNe 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
sueh Obligations (except to the enent that federal law governs), and
all references to the Unifonn Commercial Code shall be deemed to
refer to the Unifonn Commercial Code as enacted in such state. (1)
Undersigned hereby irrevocahly appoints Bank and caeh holder
hereof as Undernigned'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 la, 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 prot'npt and faithful
perfonnance of all of Undernigned's Obligations hereunder,
including without limitation, time of payment, is of the essence of this
Agreemen!. (i) Copies or reproductions of this dqcument or of any
financing sta\em9l1tmay be Iiled as a financing statement.
12. AdditWnal Power of Attorney. In addition to the powers of
attorney granted 10 Bank by Undersigned elsewhere in this
Agreement, Undersigned herehy appoints Bank and its officers,
P~ve ~ nf4
~-.
10-20-' 04 11:22 FJlCt1-
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Oct-20-200~ 08:32a.
. PARTIES
. D.:bUir n::l.!ne(lDs( Wlme l:io:l j{indivklunl) ;llld m~nln& Iddn:l.:"l:
.' '~'AX.' SAt.'G r,o
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/EWJLLE, P^ 1n41
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'tOlniC'S FO()l) MARKET
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DeMur IUlmc (lut n::ll:rtt: r1.l'lt IC indivUlu.al) and mniling.addcur.:
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~ "e\ion fi.ank Centet"6 1l:1Il~ 1s'-u~7a
PittsbYr~, PA 15258-0 01
1-
AKfaDec(.) o( ~d. Par(;f !lame(l) (l.34t n.me Otst Je indlvld\lat)
lUKl.ddrc:R rot UCUricy Iolaa:t In!orn:sa.tion..
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o The ,.,.,.. "Pebla<":wI 'S=r<d Pant' """" 'l.esocc"
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[] D<bco.*".II ~iUior; Ul1lity~
SECUl!ED PARTY SICNATURE(S)
'('IL(. ala.kmart Ia I1ltA. ~ oob- the S<<ared Parl(l ~ to
pcriect alCC'Wil)' loktUtJn c:cllat~ (elIed appllOilblc: ~")) -
a.. 0 8O:jdJrcd..ner. duu:1i:'C" o(ItUlcte" Idcu.n:~ or QOrpoale lltJ:uduc:e
oClhe Debtor.
b.O as 10 which lLe DII"" ~ J.pud.
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Detail report item #1 printed by: DOTTIE HOFFMAN on 2/22/01
==~=====~=====~================~==~==~=======================================
PENNSYINANIA UCC DETAIL REPORT
DATA COVERAGE TI1P.OUGH
FD.l \1:" 2 \10 1
:,J::lIl,CII C;01'1I'LETI:;
I"EIJ 22, 2(J[)
1)(::,,') N1 (C)'I'
============~==~=======================================================~-------
-~-~-----
Filing Location:
SECRETARY OF STATE OF PENNSYLVANIA
308 NORTH OfFIcE BUll,DING
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
---------~--------------------------------------------------------------------
T5E INfORMATION IN THIS REPORT IS PROVIDED IN CONFIDENCE SOLELY FOR YOUR USE I
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 EXPERIA
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.
_~~i. .
..._ ~ ....____._~..n~ ,_. .~_~_ __. _____._________--,-....__ _. _.._,.____._.~_ __ _ '_.___'_ "_ .._. .._.__".~..__.._..._____'~~ ._______
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FORBEARANCE AGREEMENT
This forbearance agreernent ("Agreement") is made this JJ:Z: day of .At r../ I , 2005 by
and between Sang Ho Kwak, individually and d/b/a Say-Ford Supermarket a!k/a Sayford Supermarket
(hereinafter, Say-Ford Supermarket and Sayford Supermarket will be referred to as "Say-Ford
Supermarket") and d/b/a Young's Food Market ("Mr. Kwak'') and Mellon Bank, N.A., now by
assignment, Citizens Bank of Pennsylvania (the "Bank'').
.WITNESSETH:
WHEREAS, on or about May 28, 1999, the Bank rnade a loan to Mr. Kwak and Yon Hwa
Kwi!k ("Mrs. Kwi!k'') (jointly, the "Kwaks'') in the amount of $395,000.00 (the "Loan");
WHEREAS, the Loan is evidenced by a note and security agreement dated May 28, 1999 (the
"Note");
WHEREAS, in order to induce partially the Bank to make the Loan, the Kwaks executed and
delivered to the Bank a mortgage (the "Mortgage'') on their irnproved real estate situate in the
Township ofFrankford, Cumberland County, Pennsylvania, as more particularly described in
Cumberland County Mortgage Book 1552, pages431. e( seq~ (the "Mortgaged Property");
WHEREAS, in order to induce partially the Bank to make the Loan, Mr. K wak, individually
and d/b/a Say-Ford Supermarket granted the Bank a security interest in, among other things, his
equipment, rnachinery, motor vehicles, furniture, fixtures, inventory, accounts and contract rights
(collectively, the "Say-Ford Collateral"), as evidenced by a security agreement (the "Say-Ford
646216.3
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Security Agreement") and as perfected by certain UCC-1 financing staternents (the "Say-Ford UCC-1
Financing Statements'');
WHEREAS, in order to induce partially the Bank to rnake the Loan, Mr. Kwak, individually
and d/b/a Young's Food Market granted the Bank a security interest in, among other things, his
equipment, machinery, motor vehicles, furniture, fixtures, inventory, accounts and contract rights
(collectively, the "Young's Food Market Collateral''), as evidenced by a security agreement (the
"Young's Food Market Security Agreement'') and as perfected by certain UCC-I fmancing
statements (the "Young's Food Market UCC-1 Financing Staternents'');
WHEREAS, Mrs. Kwak is deceased;
WHEREAS, Mr. Kwak defaulted under the terms of the Note for failing to make payments of
principal and interest when due;
WHEREAS, as a result of Mr. Kwak's defaulting under the Note, on or about December 2,
2004, the Bank confessed judgment against Mr. K wak in the Court of Cornmon Pleas of Cumberland
County at No. 04-6040 in the amount of $384,294.24, plus interest and costs (the "Confessed
Judgment");
WHEREAS, Mr. Kwak has informed the Bank of his inability to pay the Note, in accordance
with its terms, and has requested the Bank to enter into this Agreement relative to this one obligation
of the Kwaks to the Bank;
WHEREAS, Mr. Kwak and the Bank wish to enter into this Agreernent without the Bank's
waiving any of its rights and remedies under the subject indebtedness, but in an effort to permit Mr.
646216.3
2
...----.--- --~ ~_.,---_._----_._--------
Kwak the opportunity to resolve his financial difficulties and to arrange for the repayment of his
obligations to the Bank under the Note;
WHEREAS, in consideration of said forbearance, the parties hereto wish to enter into this
Agreement outlining the terms of the forbearance.
NOW, THEREFORE, intending to be legally bound hereby, and in consideration of the
mutual terms and conditions hereinafter set forth, the receipt and adequacy of such consideration
being hereby acknowledged, the parties hereto mutually agree as follows:
1. Confirmation of Mr. Kwak's Indebtedness. Mr. Kwak hereby confirms and
acknowledges that he is justly and truly indebted to the Bank under the Note, without any setoff or
defenses thereto. There is due to the Bank under the Note as of March 23, 2005 the amount of
$298,840.40, consisting of principal in the amount of $297,289.47 and interest in the amount of
$1,550.93, accruing at the approximate per diem rate of$70.19. It is expressly understood that the
foregoing statement of indebtedness does not include accrued interest from March 14,2005,
attorneys' fees and costs, or other expenses which may be incurred by the Bank if the Bank fmds it
necessary to exercise its rights or rernedies under the Loan Documents (as hereinafter defined). It is
further expressly understood that the aforesaid amounts shall be included in the indebtedness due to
the Bank from Mr. Kwak.
2. Confirmation of Loan Documents. Mr. Kwak hereby acknowledges and agrees that
the information contained in the above-referenced recitals is true, accurate and complete, and further
ratifies, confirms and acknowledges that all loan documents (the Note, the Mortgage, the Say-Ford
Security Agreement, the Young's Food Market Security Agreernent, the Say-Ford Financing
646216.3
3
Statements, the Young's Food Market Financing Statements, and any and all addenda or supplements
thereto, and other related documents executed by the K waks, or either of them, and delivered to the
Bank (hereinafter collectively referred to as the "Loan Documents")) concerning the indebtedness as
referenced hereinabove and the Confessed Judgment are valid, binding and in full force and effect as
ofthe date hereof, and that the Kwaks have no defense, setoff, counterclaim or challenge against the
payment of any and all sums owing under the terms of the Loan Docurnents or the enforcernent or
validity of any of the terms thereof.
3. Re-affirmation of Certain Collateral. Mr. Kwak hereby confirms and re-affirms that
the equipment listed on Schedule A hereto is part of the Say-Ford Collateral and/or the Young's Food
Market Collateral and is subject to a perfected, first lien security interest in favor of the Bank. Mr.
Kwak further agrees not to move any or all of the equipment set forth on Schedule A from the
location set forth on Schedule A without first obtaining the express, written consent of the Bank,
which consent may not be umeasonab1y withheld. Mr. K wak also agrees not to sell any of the
equipment set forth on Schedule A without first obtaining the express, written consent of the Bank,
which consent may be withheld for any reason.
4. Payment of Indebtedness. On or about Decernber 29, 2004, Mr. Kwak paid the Bank
$30,000.00, for all past due payments, late charges, attorneys' fees and costs due under the Note and
inconsideration for the Bank's agreeing to enter into this Agreement. On or before April 1,2005,
Mr. Kwak shall pay the Bank a principal and interest payment of$3,923.65. On or before May 1,
2005, Mr. Kwak shall pay the Bank a principal and interest payment of$3,923.65. On or before June
1,2005, Mr. Kwak shall pay the Bank a principal and interest payment of$3,923.65. On or before
646216.3
4
July 1,2005, Mr. Kwak shallpaythe Bank a principal and interest payment of$3,923.65. On or
before August 1,2005, Mr. Kwak shall pay the Bank a principal and interest payment of$3,923.65.
On or before September 1, 2005, Mr. Kwak shall pay the Bank a principal and interest payment of
$3,923.65. On or before October 1, 2005, Mr. Kwak shall pay the Bank a balloon payment of all
principal, interest, late charges, attorneys' fees and costs, if any, then due under the Note.
5. Forbearance Term. The Bank hereby agrees to forbear from exercising the rights and
remedies available to it as a result ofthe defaults which have occurred prior to the date hereof until
the earlier of October 1,2005 or an Event of Default (as hereinafter defined).
6. . Interest. Interest will continue to accrue on the outstanding principal balance at the
contractual rate set forth in the Note.
7. Financial Statements. During the term of this Agreement, Mr. Kwak shall, upon
request, provide any and all financial information the Bank may so request frorn time to time,
including, but not limited to, a copy of his most recently filed federal income tax returns and current
fully-executed financial statements.
8. Events of Default. The occurrence of anyone or more of the following is an Event of
Default hereunder:
a) Mr. Kwak fails to observe or perform each and every provision of this Agreernent, the
Note, and any other loan documentation relative to the obligations of the Kwaks,
including, but not lirnited to, the failure to rnake the payments as provided herein;
b) Mr. Kwak files a petition under any provision of federal or state bankruptcy,
insolvency, moratorium or similar law, or such petition is filed against him;
646216.3
5
....-....--.----. --_..._~_.__._----
c) Mr. Kwak rnisrepresents any warranty or representation given hereunder or
misrepresents any material fact hereunder.
9. Forbearance by Bank. In consideration of this Agreement, the Bank hereby agrees
that during the term of forbearance it shall take no action to collect its collateral or to enforce the
within obligations or the underlying obligations so as to provide Mr. Kwak with an opportunity to
resolve his financial difficulties as set forth herein. Said forbearance is conditioned upon Mr. Kwak's
complying with this Agreement.
10. Binding Effect. TIlls Agreement shall be binding upon the parties hereto, their
executors, administrators, heirs, successors and assIgns. Mr. Kwak shall not have the right to assign
his rights hereunder without prior written consent of the Bank.
11. Inspections and Appraisals. Mr. Kwakhereby grants to the Bank the right at any time
and frorn time to time to conduct inspections and/or appraisals of any or all of its collateral, including
the Mortgaged Property, the Say-Ford Collateral and the Young's Food Market Collateral.
12. Governing Law and Venue. TIlls Agreement shall be governed, construed and
enforced in accordance with the laws ofthe Commonwealth of Pennsylvania. Any and all disputes
. hereunder shall be commenced and resolved in any of the courts of common pleas of Pennsylvania.
13. No Waiver or Novation. Nothing herein contained and no actions taken by the Bank
herein or in connection herewith shall constitute or be deerned to be a waiver or release of any default
by Mr. Kwak of his obligations, or ofthe security interests, rights, remedies or privileges afforded to
the Bank thereunder. Nothing herein shall constitute a waiver by the Bank of Mr. Kwak's
non-cornp1iance with the terms of his obligations, nor shall anything contained herein constitute an
646216.3
6
----.--.---.------.-----.----------------,.---.
agreement by the Bank to enter into any further agreernents with Mr. Kwak. Neither this Agreernent
nor any other documents to be executed in connection herewith is in any way intended to constitute a
novation of or a waiver of any of.the underlying obligations. The Note and any and all other
agreernents in writing between Mr. Kwak and the Bank shall remain in full force and effect. In the
event of any inconsistency between the terms of this Agreement and the terms of the Loan
Documents, the terms of this Agreement shall prevail. All other terms, conditions and covenants set
forth in the Loan Documents, except as expressly modified herein, remain unchanged and in full force
and effect.
14. Extension. Nothing herein shall be construed as a representation or warranty by the
Bank that the forbearance term granted herein shall be extended or renewed and the parties hereto
confirm and acknowledge that no further extensions or renewals have been promised.
15. Time. Time is of the essence of each provision of this Agreement.
16. Construction. The parties acknowledge that each party and each party's counsel have
. reviewed and revised this Agreement and that the normal rule of construction to the effect that any
ambiguities are to be resolved against the drafting party will not be employed in the interpretation of
this Agreement or any amendments or schedules hereto.
17. Release. Mr. K wak hereby waives and releases the Bank, its officers, employees,
agents, representatives, attorneys and directors and their executors, adrninistrators, heirs, successors
and assigns from any and all claims, causes of action, set-offs, recouprnents, actions, debts, damages,
liabilities and expenses which they may have against the Bank in connection with the Note, any
646216.3
7
action or inaction of the Bank or in any way related to the Loan Documents and/or the negotiation of
this Agreernent.
18. Voluntary Agreement. Mr. Kwak represents and warrants to the Bank that (i) he is
represented by legal counsel of his choice in regard to the transaction provided for in this Agreernent
and that such counsel has explained to him the significance of the terms, and the full meaning and
effect of this Agreement; (ii) he is fully aware and clearly understand all of the terms and provisions
contained in this Agreement; (iii) he has voluntarily, with full knowledge and without coercion or
distress of any kind, entered into this Agreement and the documents executed in connection with this
Agreement; (iv) he is not relying on any representations either written or oral, express or implied,
made to them by the Bank other than as set forth in this Agreement; and (v) the consideration
received by Mr. Kwak to enter into this Agreement and the arrangement contemplated by this .
Agreement is fair, reasonable, equitable, actual and adequate.
19. Modification. This Agreement may not be modified except by a writing executed by
the parties hereto with the same formality as this Agreernent.
20. Gender and Number. Unless otherwise specified, the masculine shall include the
feminine and the neuter and vice versa. Thesingu1ar.shallindudethe.pluraLand.:vice versa.
21. Additional Instruments. Each party shall, at the request of the other party, execute,
acknowledge and deliver whatever additional instruments may be required in order to accomplish the
intent of this Agreement.
22. Invalidity. In the event anyone or more ofthe provisions contained in this
Agreement shall for any reason be held to be invalid, illegal or unenforceable in any respect, such
646116.3
8
invalidity, illegality or unenforceability shall not affect anyofthe provisions of this Agreernent, and
this Agreement shall be construed as if such invalid, illegal or unenforceable provisions had never
been contained herein.
23. Counterparts. This Agreement may be executed in identical counterparts which
together shall constitute a single agreement.
24. Complete Agreement. This is the cornp1ete agreement and there is no written or oral
understanding or agreement directly or indirectly connected with this Agreement that is not
specifically incorporated herein by reference.
25. Waiver of Jury Trial. Mr. Kwak and the Bank irrevocably, as an independent
covenant, waive jury trial and the rights thereto in any action or proceeding between Mr. KWak
and the Bank.
IN WITNESS WHEREOF, Mr. Kwak and the Bank, intending to be legally bound hereby,
have executed this Agreement the day and year first above written.
WITNESS:
~(. C. ~./-....
ATTEST:
.-.-; /1
,
MELLON BANK, N.A., now by assignment,
CITIZENS B OF PENNSYLVANIA
/
BY:
646216.3
9
,
COMMONWEALTH OF PENNSYLVANIA
SS:
COUNTY OF LUZERNE
,., fj,.
ON THIS, the ~ day of
jq~11
,2005, before me, the undersigned officer,
personally appeared Joseph E. Sweeney, who acknowledged himselfto be Assistant Vice President of
Citizens Bank of Pennsylvania, and that he, being authorized to do so, executed the foregoing
instrument for the purposes herein contained by signing the name of Citizens Bank of Pennsylvania.., .
by himself, as Assistant Vice President.
IN WITNESS WHEREOF, I have hereunto set my hand and notarial seal.
COMMONWEALTH OF PENNSYLVANIA
Notarial Seal
Jane A. Muscavage, Not3ry Public
City Of Wilkes-Barre, Luzeme County
My Commissioo Expires Nov. 3, 2007
Member. Pennsyfvania Associahon Of Notaries
N'(!~UC "*""~"d<"-
CO:t\1MONWEALTH OF PENNSYLVANIA
COUNTY OF
ss:
ON THIS, the ~ day of -1lpr I \
, 2005, before me, the undersigned officer,
personally appeared Sang Ho Kwak, known to be (or satisfactorily proven) to be the person whose
name is subscribed to the within instrument, and acknowledged that he executed the same for the
pUlpose therein contained.
IN WITNESS WHEREOF, I have hereunto set my hand and notarial seal.
~~'
NOTARYPUBLI . /\
646216.3
COMMONWEALTH OF PENNSYLVANIA
NotaOal Seal
Rhonda Heffelfinger, NofaJy Public
City Of Hanisburg, Dauphin County
My Commissioo ExPres Apr. 22, 2008
,
SCHEDULE A
Savford Market Secured Equipment
Sharp ER-A330 Cash Register
TEL SL 9000
Casio PCRT 2000 Cash Register
Mega Refrigerator Unit
Panasonic KX-FP121 Fax Machine
Pre Fab 10 x 12 Walk In Cooler
Bunn Coffee Maker VPS Series
Hobart Meat Tenderizer
Power Cooler 2 Door
Bird Meat Cutter
Beverage Air Deli Cooler
Heat Sealer 20 Inch
True Deli Bar Refrigerator
Berkel Meat Slicer 3340
Hussman Meat Cooler Displays (3)
Berkel Meat Slicer 919/1
Tafco Pre Fab Walk In Cooler 12 Door
Eastern Mfg. Checkout Computer
System
(1) Master Computer
(2) Check Out Stations
Tafco Pre Fab Walk In Freezer 12 Door
Whirlpool Range
Youno's Market (Newville. PA) Secured EQuioment
Powers Sliding Cooler with butcher top cover, Ser. No. B947-556
Migdi Deli Case with Bottom Refrigerator, Ser. No. 894004
21/2 x 3' Tappan Chest Freezer
Sturdi-Bilt up Draft and Exhaust Fan
30" Comstock-Castle Stove, Ser. No. 7MM420
Castle Pizza 2-Shelf Oven, Ser. No. 6MM128
Westy Cash Register Sanyo, Ser. No. 63404445
Slicer Model 919-1, Ser. No. 9365-1151-09830
../'1
./ /
~---. / /
", ". / , ..:,--"" /' ..-..-'
. cc"'"\ ,,:/-?"{: //.< .'\ "'""":)
-____.-. .I /"/0' //', :rA\
SANG HO KW AK L/
Sworn to and subscribed before me
this~h day of Apr, \
,2005.
COMMONWEALTH OF PENNSYLVANIA
Nolana! Seal
Rhonda Heffelfinger. Notary Public
City Of Harrisburg, Dauphin County
My Commission Expires Apr. 22, 2008
lQfvOY'~ l~{Q~Vv!Y'vaf/:'
'v l/ (
.'
VERIFICATION
I, Joseph E. Sweeney, hereby certify that 1 am an Assistant Vice President of Citizens Bank of
Pennsylvania 1 have the authority to make this verification on its behalf. 1 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. g4904
relating to unsworn falsification to authorities.
(....
I
v~.
. Sweeney
/J ',.,-r-
I"{~r'
677409.1
jRECEIVED AUG 302005
,9
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 assigmnent
CITIZENS BANK OF PENNSYLVANIA
8 West Market St.
Wilkes-Barre, PA 18701,
IN THE COURT OF COMMON PLEAS
OF CUMBERLAND COUNTY
Plaintiff
vs.
CN1L ACTION -- LAW
REPLEVIN
SANG HO KW AK, Individually and d/b/a
Young's Food Market, and YON HW A KW AK
1307 N. 3'd Street
Harrisburg, PA 17102,
Defendants
NO.
o5-1'-1d.-/- c;vl'L t;'r~
BRIEF IN SUPPORT OF PLAINTIFF'S MOTION
FOR WRIT OF SEIZURE
The plaintiff, Mellon Bank, N.A., now by assigmnent, Citizens Bank of Pennsylvania (the
"Bank"), by and through its counsel, Hourigan, Kluger & Quinn, 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 follows:
I. HISTORY OF THE CASE
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, Luzerne County, PA
18711. Mr. Kwak is an adult individual having a last known address of2208 Chatham Way, Harrisburg,
PA 17110. Upon information and belief, Yon Hwa Kwak is deceased.
6774]3.1
. .
. ,
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.) 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
"Young's 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 true and
correct copy of the Security Agreement and the UCC-1 Financial Statements is attached hereto as
Exhibit "B" and incorporated herein by reference.)
Mr. Kwak defaulted under the terms of the Note by failing to make monthly payments of
principal and interest due under the Note.
As a result of Mr. Kwak's default under the terms of the Note, the Bak and Mr. Kwak entered
into a forbearance agreement dated April 12,2005 (the "Forbearance Agreement"), upon the terms and
conditions more particularly set forth therein. (A true and correct copy of the Forbearance Agreement is
attached hereto as Exhibit "c" and incorporated herein by reference.) Mr. Kwak defaulted under the
terms of the Forbearance Agreement by failing to make payments of interest due under the Forbearance
Agreement.
The fair market value of the Young's 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.
6774]3.]
2
.
The balance ofthe Note as of August 8, 2005 was $296,891.95, consisting of principal in the
amount of$291,949.52, accrued interest in the amount of$4,706.61, late charges in the amount of
$235.42, exclusive of attorneys' fees and costs.
II. STATEMENT OF THE OUESTlON INVOLVED
WHETHER THE BANK IS ENTITLED TO POSSESSION OF THE
COLLATERAL WHEN MR. KW AK HAS DEFAULTED UNDER THE
TERMS OF THE NOTE?
III. ARGUMENT
Pa.R.Civ.P. No. 1075.1 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
hearing, the plaintiff must file a motion for writ of seizure. See Pa.R.Civ.P. No.1 075.1 (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 of a 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 a writ of
seizure of the property in a replevin action must be held whether or not the defendant or other person
6774]].1
3
found in possession ofthe property appears. See Pa.R.Civ.P. No. 1075.1(e); see also EQuico Lessors
Inc. v. Ewing. 281 Pa. Super. 147, 152,421 A.2d 1190, 1193 (1980) (holding thatprimafacie 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 gI075.1(e):1 (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 g1075.1(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 possession of
the property. See 4 Goodrich Amram 2d g1075.1(e):1 (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).
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 Maver v. Chelten Ave. Bldg. COIl'.. 321 Pa. 193, 196,
183 A. 773,774 (1936); General Motors Acceptance Corn. v. Burns. 25 D&C 2d 293, 296-300 (1961).
677413.]
4
, .
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, it
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 the goods, provided that in so doing he does not
exceed the limits prescribed by the law. See Kneas v. Fitler. 2 Serg & R 263, 264 (Pa. 1816); Maver. 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. See Maver. 321 Pa. at 196, 183 A. at 774. The burden is
upon the plaintiff in a replevin action to establish every material element of his case upon which an issue
is raised under his pleadings. Blossom Prods. Com. v. National Underwear Co.. 325 Pa. 383, 387, 191
A.40, 42 (1937). The plaintiff must establish his right to possession ofthe subject property by a
preponderance ofthe evidence. See Petition of Allstate Ins. Co.. 289 Pa. Super. 329, 333,433 A.2d 91,
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).
677413.]
5
. .
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. Staoles. 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, KLUGER & QUINN, P.C.
By:~-5
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
(570) 287-3000 Telephone
(570) 287-8005 Facsimile
Dated: A"",)\( 1" , 2005
I I
677413.]
6
$ 395,000.00
promisQ To Pay. F()H VALlJE RECElvEn,aruJ intending to be lega!!y
hound, Undersigned, as defined l)Clow, prornisc5 10 p:1)' 10:
l'1e11oo nan}~ N.l\_
CB~lllk"J or i15 urdu at
Harriaburq, Pennsylvania
the sum of
Three Hundred Ninety Five Thousand and
00/100
Dollars ($ 395,000.00 ), :with interest on the
outstanding balance [rom the date of: this Promissory Notc
('NOle') at the rate(s) ('Contractual Ratqs)") and in accordance
WIth the repayment schedule specified belqw.
Contractual Rate(s); Repaymont Schedules. ;
o Interest at a rate per annum:which is %
above Bank's Prime Rate, such rate 10 ch:lOge from time to time
as of the effective date of each announcciJ change in such Prime
Rate, shall ~ paid when principal l"'Yll\ents are due. Principal
shall be paId 10 consecutive I\lOOthly installments of
S each, commencing 1m ,
and oontinuing thereafter on the ; day of each month
with the balance of the indchtedocss, it ni>t sooner paid, due and
payable on :
:
o Interest at a rate per annunl which is %
above the CD Rate, such rate 10 change trom time 10 time as of
the effective date of each change in Of rqctting of the CD Rate
s~lI ~ paid when principal payments ar~ due. Principal shall ~
patd 10 consecutive m<jnthly installments of
S each'.lco==cing 00
. and OODtinU~ thereafter on the
day of each month with: the balance of the
indebtedness, if nol sooner paid,. 4ue and payable on
,
,
,
o The principal balance he~~ together with all
accrued and unpaid interes~ shall be' paid 011
and interest at a rate per annum whi~ is % abov~
Bank's P~me Rate. such rate to change om time to time as of
the eff~ date of each announced cha .ge in such Prime Rate,
shall be paId on the day of eachl month commencing on
. ,
,
I
o The principal balance ht' ~ together with all
.accrued and unpaid intercst, shall be pai 00 . ,
and ioterest 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 rcsctti~ of tb. e CD Rate, shall
be paId on the day of each l"onth commencing on
!
o In nO evcnt shall the rate charged Ion this Notc exceed
% per annum.
I
o The principal balance htf' together with all
a~ed and unpaid interest, shalt be pai, on .
and Interest at the nlte of % annum shall be paid
on the day of each mtntb commencing on
1iI ,5' A'" ~ft~cst shall be calCU.ted al the. rate of
A . ~n % .per annum. Principal and ~tercst shall be paid in
,'7Q consecutive moathl insb.Umcnts of
S 3.<)23 liS each, co
!.
<(
'"
w
~
w
~
'"
~
/t
~~-- //$/71
07/01/1999 ,"Old wntmUlng thereaftcr on the 1ST
(by of c;l~1l monlh wilh lhe h..'1lancc of Ihe indchledlle~<;, if llnt
MX1!lCr [hud, (jue and payable on 06/01/2014 _ During ~lflY
pcnod that thc Contraclual Rate(s) i, reduced by 0.25% pcr
annum, as dC$('.ribcd elsewhere in .his NO/c, installmcnls of
principal and interest shall instead be in the amount of
S 3,864.70 each. If Ihe reduction in the Contractu;]!
IblC(S) is no longer in dred. the amount of inst<'lllmcnts of
princip31and inlerest shall relum 10 and be the same as the amount
of such installments prior to the rcduClioo. in the Contractual
Rate( s).
Undernigned shall pay Bank cooQul"enlly with the cxCaJtion and
delivery hereof, or Undernigned previously has paid Bank, an
ongl.nauOI1 fee ?f S .' 3,950.00. 10 compensate Bank
for Its underwnling, ongInation and administration of the loan
evidenced by Ihis Note. This fee shall be deemed fully earned by
Bank on the dale herco~ shaD not be refunded, and is in addition
to any other fees, costs or expc= which may be due and payable
hereunder.
Unless Undernigned has authorized Bank 10 lake payments out of
a ":fellon O1cclJng ACCO\ln~ as set forth below, Under:;lgned will
mati or deliver to Bank the amounl billed by Bank each month.
Undersigned will mail or deliver the payments so that Bank
receivcs all payments no later than the due date shown on each bill.
o Undcrnigned authorizes Bank 10 lake all
payments of principal and/or interest and/or other amounts due
under this NOle out of Undersigned's Mellon CbccIdng Accouot
Number . titled in the name(s) of
. on or
after ~e . ~y of each ~th. Undcrnigned will keep a
suffiCIent 'balance In lhis accounl 10 cover: the full amounts of all
rcquir,,-? ~e?ls. At. its . option, Bank may Icnninate
U ndcrnlgned s abtlity to use this scmcc. This authorization shall
rcmain in effect until rcvolccd by Uodersigned in writing or until
the '?Sn evidenced by this NOle .is paid in full or until Bani:: has
tcnnmated Undernigned's ability 10 use this service, as the case may
be. Pnor to t?-13turity, white. this authorization is in effect and
provided that Undersigned keeps a sufficient balance in this
account to' rover -the full amounts of aU r~uired payments. the
Contra.dual Rat.e(s) shall be reduced by 0.25% pcr annum. This
authonzallon will be cffective even though this Note and the
account may be titled in different versidns ofUndecsignei:1's name.
I[ the original principal amouni of this Note is in excess of
$10,000.00. or .if Ufldersignoo is a 'corporation, ip.tercst shalt be
calculated on ~he.hasis of a 36O-<layyear and actual days elapsed. If
the ongmal pnoapal amount of this Note is SlO,(X)(),OO, 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
adual days elapsed.
"Prime Rate" shall mean the interest rale per annum announced
(rom lime to time by Bank: as its Prime Rate. The Prime Rate may
be greater or less than olher inlerest rates charged by Bank to
?thcr borrowers. and is not ooIcIy, l?ascd or dependent upon the
mterest rate which Bank may charge any particular borrower or
dass of borrowern. .
I[ a singtc certificate of deposit is held by Dank as coIlatcr.1 security
for the indebtedness C1Iidcnccd by this Note, as more fully
d~bcd in the Assign~CDt of D<;posit Account expressly referring
10 tlllS Note, ';CD Rate shaH m""'h~\tc interest rate paid by Uank
on SUdl certifi~te of deposit (the "C&tifiqte'), Said CD Rate 10 be
. .....
. '>' Page lof5 .
',,:
,-
,
--.- .
rcsct by Donk at each rencwal of the Ccru&ate. If more than one
certificate of deposit is lreld by nank as collateral security for the
indebtedness evidenced by this Notc, as morc fully dcscrihcd in (he
A,>signmcnl(s) uf Deposit ^ccount cxprcs..,<:,\y referring to ~his NOh:,
"CD Rale" sh~ill mean the highest of lhe imCfCS{ r;llcs p;lid tlY lbllt.;
on such n:nificllcS of <'!c\1<..l"it (the "O:nific;\\(s"), :\;\id CD IZ;\\( \n
t>C reset at C<.lcll renewal of each Ccrtifiallc.
Lalo Chargo. If any IXlyIllCll1 (including without limitation allY
regularly scheduled payment, baHoon payment or [mat payment) is
not paid v..'ithin 15 calendar days after it is duc, Undersigned \~iJ[ ~l)'
<.1 late charge of the greater or $25.00, or lllfCC percent (YX') of ttK.
unpaid portion of the scheduled payment due (regardless of whether
the payment duc consists of principal and interest, principal onlYJJ.r
interest only). Such lale charge shall be in addition to any increase
made to thc O:mtractual Ratc(s) applicable to thc oULStanding
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). UfXJn the occurrence. of
any Evenl of Default (as defined in this Note), al Bank's option,
interest shall accrue at a rate equal to two perceat (2%) per annum
above the Contractual Ratc(s) until the earlier of the date that such
Event of Default bas been cured or until and including the datc of
maturity lrercoL
After maturity, whether by acceleration Or otberwise, interest shall
accrue at a rate equal to two percent (2%) per annum above the
Contractual Ratc(s) until all sums due lrereunder are paid lnterest
shall coatinue to accrue after the entry of judgment (by confession or
otherwise) at the CQntractual Ratc(s) until all sums due hereunder
and/or under the judgment are paid. except that after maturity or, at
Baa~s option, upon the occurrence of any Event of Default, intercst
shaD accrue at a rate equal to two percent (2%) per annum above
the Contractual Ratc(s).
Books end Records; Time of Essence. So loi1g as Bank: is the
bolder hereof; Bank's books and records sball 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 Undernigned's
obligations hereunder, including without limitation time of payment.
is of the essence oflhis 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 oc enforcemenl of this Nole or the
protection of any rollateral securing this Note (including without
limitation_ aU advances made by Bank for taxes. levies, insurancc.
filing fees, and repairs to or maintenance of said collateral),
Undcrsigned hereby grants to Bank: a security interest in, lien u{Xln,
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 0Y.'Cd by Bank, induding any
prc>c:eeds or returned or uneamed 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 Undcrnigned shall
renew, or cause to be renewed, the CertiflC3tc(s), if any, untit the
indebtedness evidenced by this Note has been paid in full.
Undersigned further agrees that Undersigned wilt execute, or will
cause 10 be executed, upon demand by Dank any financing
statements or other documents, iaduding, without limitation,
additional AssignmCdts of Deposit AOCOUdt, whicl1 Danl may deem
ncocssary or desirable 10 evidCdOC, pctfecl or maintain perfection of
the security interests created in Ilre Certificalc(s) and any renewals,
replacements and substitutions therco(
Additional Tams and <Auditions
l. Covooonls. Undersigned COYeDants and agrees that until all
indebtedness evidenced lrereby ha., been paid in full, Undcrsigncd
shall: (3) mainlain at aUlJOles a fXl5itivc langi()le ncl \I,,'orth; (b) (1)
have all Environmental Permits nccc~<;';HY for the conduct of each
of UmlcrXltllCd's busillC;;",>C:) and oJx:r~lIiol1:), (2) fondue! CICl1 oj
Undersl~ned's businesses and operations in material compliance
wilh all applicable Environmental I.aws and Environmcnti:ll
Permits, (3) not permit to exisl any evenl or condition that requires
or is likely to require Undersigned under any Environmental Law
to payor expend funds by way of finc.'), judgmenls, damages,
de<mup, remediation or the like in an aggregate amount, the
payment of which could reasonably be cxpected to interfere
substantially ...nb normal operations of Und=igned or materially
a<IveIOcly atred the financial rondition of Undernigned, (4) notifY
Dan!:. promp<ly upon bcooming aware of any pending or threatened
proceeding. suit, investigation, allegation or inquiry regarding any
alleged """"t or ronditioo that, if resolved unfavorably to
Undersigned or any of Under.iigned's subsidiaries or affiliates, is
lil:eIy 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 likeJ and
(5) provide at Undersigned's cost, upon request by Bank,
ccrtificatioos, doo.rmcntation, ropies of pleadings and other
information regarding the above, all in fonn and rontcut
satisfactO<)' to Baal; (c) ronduct each of Undersigned's businesses
and operations in material complianoc with all fedetal, state Or local
Jaws. statutes. regulatioos, rules. ordinances, court or administrative
orders oc decrees, or private agreements or interpretations, nCYI or
hereafter in existcuoc, directly or indirectly relating to or affecting
Undernigncd's businesses or operations; (d) use the proceeds of the
loan cvidaJocd bereby only for business purpose(s) specified to
Dank at or prior 10 the execution bereof; (e) promptly notify Bank
in writing of any change in Undersigned's residence or Chief
Executive Office; (f) purd1ase and maintain policies of insurance
(mcluding IIood insurance) 10 protect against such risks and
casualties, and in .suell amounts, as sball be. required by Bank
and/or applicable law, whiell poUcies sbaII (1) be in fonn and
substance satisfactory to Baak, (2) at Bank's option, dcsignatc
Bank as Ia<s payee aod.k>r as additional insured, and/or contain a
Icndct's Ia<s payable endorsement, and (3) be (or certificatcs
evidencing same shall be) deposited with Bank; (g) (1) maintain
and keep puper records and books of account in conformance with
generally a=pted accounting principles appUed on a consistent
basis in wbich full, true and correct entries shall be made of all
Undernigncd's dealings and business alfairn, (2) provide to Bank at
Undersigned"s. cost, upon Bante's request. fioanaal or other
io(ormaUod. documentation or certifications (inducting without
limitation annual and periodic balance sheets and income
statements, personal financial statements, federal inoome tax
returns, ilM:ntory reports (including a description of raw materials,
finislred goods, and tbe aging tbereof; as applicable), and accounts
rcccMible and payable aging reports), all in fonn snd content
satisl:actO<)' to Bank, and (3) permit, upon request by Bank, any nf
the officas, emplnyccs or reprcscntatives of Dank to visit aud
inspect atI'f of Undersigned's properties and locations snd to
examine its books and records and discuss the affairs, flOances and
accounts d Undersigned with representatives thereof. as often as
Banl may n:ques!; (h) providc additional rollatcral at such times
and having such value as Dank may request, if Bank shall have
reasonable uouods for believing that the value of the collateral
SCOJring lhe indebtedness evidenced by this Note has become
insullicicullo &cCUre said indebtcdnCSi; (i) pay. upon demand by
BanI:, (I) 011 costs and fees pertaining to thc filing of any financing,
continuatioo Of tennination statements. mortgages, satisfaction
pieces, iudt;meots and any other type of documenl which Bank
_ n=ary or desirable to be filed with regard to security
intcrests _ secure the., indebtedness evidenced hereby,
regardt=, oC V<belher suell si:<irity interests were 8raoted by
UndersignQl, and (2) .11 costs an,f<:xp<:yscs incurred by Dank in
.'.' Pagc20f5
~~j.
CJnncction with any collateral securing !his Note 0nduding wilhoul
limitation all advances made by Bank for taxes, levies, insurance,
repairs 10 or maintenance of said collateral, appraisal or valuation
or ~aid coll:ltcral, ilnd dCICrlnination of flood h:l.7..1rd), rcg:1fdlcss of
whether suc.h ('ollateral is owned by Undersigned; 311d (j) P;:lY, UfXl!1
c!cm:wu hy B:H1k, all ;JfllOU/1(S inclIrred hy Ibnt in cnnncclinn wi!!}
:II1Y action or pnx:ccuing 1:IKCll or commenced by B:lllK to enforce
or collect tl1is Note, including atlorncy's fees equal to the Ic.'.,s.cr of
(1) 20% of Ole outstanding principal h..11:mcc and inlcreslrhen due
hereunder or S500.00, whichever is greater, or (2) the maximum
amount pcrmitted by law, plus allOrnC)"s costs and all costs of legal
rrocccding~.
2. Evonts 0/ Default The occurrence of any of the fol1olNing shall
constitute an "'Event of Default.. hereunder: (a) default in payment
or performance of any of the indebtedness or obligatiOdS evidenced
by this Notc or any othcr evidence of liability of Undccigncd to
Dank; (h) the breach by any Obligor (defined as Undasigncd and
each surety or guarantor of any of Undersigned's liabilities to Dank
as well as any person or entity granting Bank a security interest in
property to secure any indeblcdness) of any covenant rontained in
this Note or in any separate security, guarantee Of suretyship
agreement between Bank and any Obligor, the oo:uncncc 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 informalion submitted to Dank by any Obligor; (e) with
respect to any Ohligor: (1) death or incapacity of any individual or
general partner, or (2) dissotution of any partncrnhip or
corporation; (d) any assignment for the benefit of cceditorn by any
Obligor; (c) insolvency of any Ohtigor; (I) the filing or
commencement of any petition, action, case or proceeding.
voluntary or involuntary, under any state or fedcrallaw regarding
bankruptcy, insolvency, reorganization., receivership or dissolution,
inducting the Bankruptcy Reform Ad of 1978, as amended, by or
against any Obligor; (g) defautt under the terms of any lease of or
mortgage on the premises where real or pernonal 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
againsl any Obligor in any court of record; 0) the assessment
against any Obfigor by the 1nternal Revenue Sclvice 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;
(1::) change in control of or transfer of any interest in any Obligor
(other than an Obligor who is an indi'iidual); (l) a determination by
Bank, which determination shalt be conclusive if made in good
faith, that a material adverse change has occurred in the financial
- or busincss condition of any Obligor; (m) the maturity of any life
ins,urance policy held as collateral for the indcbledncss cv(denced
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 pcrfonTIance of any of Undersigned's
obligations (other than indebtedness or obligations evidenced by
this Note or any other evidence of liability of Undersigned to Dank)
and such default shall continue for more than any applicable grace
period.
3. Acealoration; Remodios. Upon the occurrence of any Event of
Default: (3) all amounts duc under this Note. induding the unpaid
balance of principal and intercs,~,hercof. shall bcoome immediately
duc and payable at the option of Bank. without any demand or
notice whatsoeVer; and (b) Dank may immediately and wi.hou.
demand exercise any oC its rights and remedies gr.mted herein,
under applicable law. or which it may otherwise have, against
Undernigned or othctWisc. Notwithstanding any provision to the
contrary oontaiQOlj herein, upon the OCClIrrCQGC 0( an Event o(
Defautt as dcscribe.fln Section 2(1) hereo~ all amounlS due under
!his Note, including w._.Jut limitalion the unpaid balance of principal
and interest hereof, shan become immediately due and payable,
without any demand, noticc or Cunhcr action by Dank: 'Whatsoever,
<lnd an aelion therefor sh:1I1 immcdi:llcly accrue.
4. 8:mk"s Rights. Undersigned herehy aUlhorizc..<; Bank, and lbn~
~/J:lll have tile continUing righi, al il~ ~()lc option and discrCliol1, to: (;I)
do anything whidl Undersigned i<; required but fails to do, and in
partirular Bank may, if Undersigned fail::; to do SO, ohtain and p..1Y <1(1)'
premiums p..1)'nble on any policy of insurance required to be obtained
or maintained hereunder, (b) direct any insurer to make payment of
any insurance proceeds, il1c1tldin~ any returned or unearned
premiums, dircctly to Dank, and apply such moneys to any
indebtedness or other amount cvidenced hereby in such order or
fashion as Dank may clccl; (e) pay the proceeds of the loan evidenccd
by this Note to any or all or the Undernigned individually or jointly, or
to such other pernon(s) as any of the Undersigned may dirccl, exccpt
to the extent otherwise provided in Seclion 6 hereof; and (d) add any
amounts paid or incurred by Bank under Section l(i), Section 1(j) or
Scclion 4( a) to the principal amount of the indcbledness evidenced
by this Note.
5. Authoriza6on to Boirow. Undernigned hereby represents, warrants,
certifies and covenants as follows:
(a) If Undernigned is a corporation, that the pcrson(s) signing below
hold(s) the office(s) indicated below (and continue to hold such
office(s) until Bank has rcoeivcd noliee to the eontrary in writing
from Undersigned), and that the Board of Direct= of Undersigned
has adopted resolutions providing that: (1) the pernon(s) executing
and delivering this Note on behalf of Undersigned Ware authorized
(i) to incur indebtedness and obligations on behalf of Undernigned by
borrowing or making other financial amlngcments with Banle from
time to time, upon teems and conditioos as they in their sole
discretion deem dcsicahte, (Ii) to make, execute and deliver
promissory notes, letter of eredit agreements, security agreements,
assignments, mortgages and all other documents required by Banlc in
connection with the incurring of indebtedness or obligations, and (iii)
to assign and ptedge as collateral secUrity for any such indebtedness
or obligations, now or hereafter existingl any real or personal
property of Undersigned; (2) the aetions of anyone or more officcrn
of Undersigned in borrowing money from Bank heretofore for the
account of Undcrnigned, in assigning or pledging any of
Undersigned's property for the payment tbereof, or in doing any
other act in connection therewith are hereby ratified, confumoo and
approved; and (3) said resolutions shaU have the foree of a continuing
agreement with Danle, and shall be binding upon Undersigned until a
resolution amending them shaU have been duly and legally adopted
and Bank fumished a certified copy thereof.
powcr of any of the partnern to rcpresent said firm, whcther by
expiration of the partnership agreement. by death or retirement
of .any par1ncr, or lhe accession of one or morc new p..1rtncrs, or
o!/lcrv.'isc, and not,l,itl1slanding any other notice thereof lbnk
Ill;l)' receive, this authori!)' shall continue lo be IlinJinl; UjXlIl each
of Ihe lIntlcr~igllcd individ\la\\y ;lI)d llJ'lI)1] their k't::ll
rcprcscillalivc.s, and upon Undersigned and its successors, until
B<lnk h3S received notice in "''filing iO the o..)ll\f<\fY sir,llcd by onc
of the Undersigned or by Undt~rsibncd's duly aul/lorizcel agC/ll
(Receipt of such nolicc will not relieve any p3f1ncr of any liability
arLsing from obligations incurred prior to Il;ll1k's receipt of such
notice), ;lJld (5) nothing herem 511;111 be construed 10 limit tile
rights granted (0 a partner by law or by the partnership
agreement, but all right.<; granted herein shaH be in addi1ion 10
such righlS.
6. Dofinitions; Miscellaneous Provisions. (a) Undersigned waives
(except wherc requested hereby) notice of action laken by Bank;
and hereby ratifies and conftrms 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 relain the lien of any judgment entered on account
of the indebtedness evidenced hereby. Undernigned warrants tbat
Undersigned has no defense whatsoever to any action or
proceeding that may be brought to enforce or realize on any such
judgmenL (e) If any provision bercof shall for any reason be held
invalid or unenforceable, 00 other provision shall be affected
thereby, and this Note shall be construed as if the invalid or
uneoforceable provision bad never been a part of iL The
descriptive beadings of this Note are for convenience only and
shan not in any way affect the meaning' or construction of any
provisiou bercoL (d) The rights and privileges of !lank conlained
in this Note shall inure to the benefit of its successors and assigns.
and !be duties of Undernigned shall bind all heirs, personal
reprcscalatives, successorn and assigns. (e) This Note sball in all
respcctlS be governed by the Ia% of the state in which this Note is
payable (except to !be extent that federal taw governs)_ (I)
Undernigned hereby irrevocably appoints Bank and each holder
hereof as Undersigned's attorney-in-fact to endocse
Undersigned's name _ to any draft or chcdc 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 aclcnowledges 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 poticy of insurance required to
be maintained under this Note, including any returned or
unearned premiums. (h) "Environmental Law" means any
... federal, state or lo:al environmen'lat law, statute, regulation, rulc.
ordinance, court or administrative order or decree, or privatc
agreement or interprctation, now or hereafter in existencc,
.relating to the manufacturc. distribution. labeling, use, handling,
collection, storage, treatment, disposal or otherwise of Hazardous
Substances, or in any way rdating to pollution or protection of
the environmcnt or public health. (i) "Environmental Permit"
means any federal, state or local permit, liocnsc or authorization
issued under or in oonnection with any Environmental Law. (j)
'Hazardous Subslanccs" means pdroIewn and petroleum
products, radioactive matcrials, """"""" radon, lead
containing materials, scmgc or 3I1J' Jll3falah or substances
dcfmed as or indudcd in the definition or -mzardous wasles,"
"!Hf..ardous suhstances," "hazardous materials," "taxi('
.sub:)l~lIKC.s," "h~lI,arJou:c; air pollul;lOls." "toxic pollutants,"
"[XJllution," or terms of similar meaning, as those terms arc
used in <Jny Environmental Law. (k) "Olid Executive Office"
means the pl.acc from which the main pan of the business
opera lions or an entity is managed. <I) "Undersigned" refers
individually and collectively 10 all makers of thi~ Note,
including, in the case of ~n)' partnership, aU general panners of
such partnership individually aod coIIedivdy. whether or not
such pannm sign below. UndCC>igocd man each be jointly and
severally bound by thc tenns hcreol; and, with respect to any
panncrnhip executing this Note, each grottal partner shall be
bound her~ both in such general partnci"s individual and
partnership capacities.
7. Oirec6on Co Pay Proceeds.Undemgned bcreby authorizes and
directs Bank to pay !be proceeds of this Note by: ..
P: ' iJ 1-7;1".; $1.1 )Q J
creditingAo:ountNumbcr ()fX)- uL 77"'1 ' lJI',L.U
in the name of /
5/lN6 )/0 ~ON //-W1t- ioJFrf'-
in the amount of $ . tV
1 11 5 q 00 J;~Ji-Jn'j mille
'l7ipaying rnp,mH :fI(p,. 2. tD!-fJ7:.r-/c.&</S-
7'. A wI. "01 .':05..3 11 ,9' ..2..q l
the amount of S
~ying [jlrJU}C/lU 91.7,/9'/-<1f
the amount of $
8. Affidavit of Business Loan.(This Affidavit is Dot applicable if
Undersigned is a corporation.) UndCC>igned, being duly
authorized, dcpose(s) and say(s) uuder penalty of pcljuty !bat
Undcrnigned: -
(a) WAre engaged in husiness aslia Owner(s), 0 General
Partner(s) of: (name and naturcofbusiness)
YOUNG'S FOOD MARKET AND
SAY-F~D SUPERMARKET ']f. yf-
FOOD MARKET
(b) Hereby makc(s) application to Bank for a loan, !be
proceeds of which win be utilized for the purposc(s) of
REFINANCE MELLON DEBT, OTHER DEBT
CONSOLIDATION & EQUIPMENT & INVOICE
PURCHASE
(c) Exercise(s) actual control OVer the managerial decisions of
the business.
(Rem:ainder or page intcntionnlly Iefi blank)
--;ii, Page 4 of 5
y'
9_ Confossion of Judgment. UNDERSIGNED HEREBY
EM1'OWERS TIm PROTIlONOTARY OR ANY
ATfORNEY Of' ANY COURT Of' RECORD TO APPEAR
f'0I( UNDERSIGNED AND TO CONFESS JUDGMENT
AS OFI'EN AS NECFSSARY N;AINST UNDERSIGNED
IN FAVOR 01''1'1110 IIOI.DE/( 111'1(1'01', 1(F(;AIUJl.I",
OF Wlll,T1IER ANY EVENT OF DEFAULT liAS
OCCURRED, AT ANY 11ME AND AS OF ANY TERM,
paR 11m OUTSTANDlNO I'IUNCII'AL IJALANCE
IIEREOF PLUS INTEREST DUE UN DE/( 11 IE TERMS
HEREOF AND ALL OTIiER AMOUNTS DUE
HEREUNDER, TOGETIiER WillI COSTS OF LEGAL
PROCEEDINGS AND AN ATTORNEYS COMMISSION
EQUAL TO 'IllE LESSER OF (A) 20% OF 'IlIE
OUTSTANIlING PRINCIPAL BALANCE AND
INTI'/(FST THEN llUE llFREUNllER OR $)()() (Xl
WlllCII/!VER IS GREATER, OR (B) HIE MAXIMUM
AMOUNT PERMflTED BY lAW, Willi RELEASE OF
ALL ERRORS. UNDEJ(SIONED WAIVES ALL LAWS
EXEMP11NG REAL OR PERSONAL PROPERTY
FROM EXECUTION_
By signing this Note, Undersigned agrees to all temlS of the Note and swears, under penalty of perjury (as set forth in
t8 fa.C.S. ~<)(}4, If governed by Pennsylvania law), 10 the Affidavlf of nuslness Loan (If completed) sel Corlh In
Section 8 or this Note.
Witness the due execution hereof under seal.
x
Witness:
:'m.~~_
.'
Melton B.nk, NA-
Mcllon Dank. (DE) NaCional Associacion
a...cS43 lkv~loti6) LC 9(96 W 9(96
021j r t6G,6<-]821 I dtSQ (Ot)
OS2799,I60S
I ~V"i-du.Zil:
X
,
D/B/A 'SFOODMARKETAND _"___
sM .gPE-RMA.-RI<eT 5:HY-F,-"'~ZJ S:,../:?r<"'/?J"H!Ic.~/
672 B ERVILLE ROAD )._./ Cf/
NEWVILLE, PA 17241 ~ fK-
Individual:
~UN ~M. MAJ{}- {~k
672 LOSERVILLE ROAD
NEWVILLE, PA 17241
(Seal)
,
.._~.u
PageSofS
,':I"
For value received, and intending to be legally bound, in
consideration of a loan or other credit accommodation in the
amount of
Three Hundred Ninety Five Thousand and
00/100
Dollars(S 395,000.00 ) made by
Mellon Bank, N.A.
fBank'~to
~~~~~ :~~V~rrD
SAY- . SU;ERMJIRKET V
('Borrower(s)'), said obligation evidenced by a
PROMISSbRY NOTE
dated
Undernigned,
follows:
_ -5-. 2-f2 - "I '7
intending to be legally
. (the 'Note')
bound, hereby agrees as
1. SecuriJy InteresL Undernigned hereby grants to Bank a security
interest in the following propcrty now owned or hereafter aequired
by Undersigned:
(Certain terms used herein are defined in Section 13 below.)
!Xl ~ t,kf,.) aD equipment, wherever located, including
ma 10 ry, m tor vehicles, furniture and fixtures;
!Xl S:::r::: 'irall inventory (whether held for sale or lease or to
be nis eel 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;
.!Xl ~YkaD accounts, contract rights, general intangibles,
chatt I f) 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 securitics in any
fonn; all securities received in addition to or in exchange for such
securities; and all subscription rights incident to such securities;
o (c) all farm products; and
o (f) all propcrty or rights described below uoder the
caption "Description of Collateral."
Description of Collateral (Give a sufficiently detailed description
to ide.Dtify each item).
!,
.,
"
w
~
~
>-'.
00
.:.
~
~
.::f%
In addition to the foregoing, Undersigned: (1) grants to Bank a
security intercst 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-eash) of all of the foregoing propcrty
and any Insurance policies relating thereto; (3) grants to Bank a
security intercst in, lien upon, and right of setoff against, all deposit
accounts, credits, securitics, moneys or other propcrty 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-eash) of all
the foregoing propcrty; 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 propcrty subject to Bank's security interests described in this
Scction 1 is referred to herein collectively as the 'Collateral.' With
rcspect to Section 4 hereunder, the term 'Collateral' shall not include
the propcrty described in Subsection (3) of this Scction I.
All security intercsts in Collateral shall be deemed to arise and be
pcrfected under and governed by the Uniform Commercial Code,
except to the extent that such law docs not apply to certain types of
transactions or Collateral, in which case applicable law shaD govern.
2 ObligatiDns Secured. The Collateral shall secure the following
obligations c'~bligation(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
in addition 10 the rights given to Bank in this Agreement, Bank
shall have all the rights and remedies of a seeured party under any
applicable Jaw, 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 reprcscntations 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) eaeh account: (I)
reprcscnts an amount aetually owing to Undernigned 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 witb Bank; and (4) is not evidenced by
any judgment unless sueh judgment bas been assigned of record to
Bank; and (b) tbe locations of all of Undernigned's places of
business are as stated below, and the inventory and records of the
accounts are kept at the places indicated below.
9. Additirmnl Covenants. tn addition to the covenants set forth
elsewhere in this Agreement, Undersigned covenants and agrees
tbat until the Obligations secured by this Agreement have been
paid in full Undersigned sball: (a) immediately notify Bank in
writing in the event that any of the following occurn: (I) any
account is or becomes entitled or eligible for discount for prompt
payment; (2) any account debtor bas or may bave 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 wbich 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
limes 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 tbe 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 officern or
other employees of Undersigned; (c) not change any location listed
below regarding places of business, inventory and records of
accounts witbout Bank's prior written consent; (d) at
Undernigned's expense, diligently collect tbe accounts on behalf of
Bank until sueh 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 casb proceeds of collections on tbe accounts; (I)
immediately upon Bank's request, give the Bank ,assignments, in
form acceptable to Bank, of specific accounts or groups of accounts
and spccifie general intangibles, and immediately repay tbe amount
loaned against any account so assigned to tbe Bank if the contract
witb tbe. account debtor is breached, cancelled or terminated; (g)
immediately upon Bank's request, furnish Bank with all
information received by Undernigned regarding tbe financial
condition of any account debtor, except to tbe extent prohibited by
law; (b) Immediately deliver to Bank all instruments, documents or
ehattel paper representing any of the Collateral and immediately
assign of record to .Bank any judgment reprcscnting any account
constituting Collateral; and (i) immediately upon Bank's request,
mark its records evidencing its accounts in 3 manner satisfactory to
Bank so as to show which accounts have been assigned to Bank.
10. Additional Righls of Bank In addition to the Bank's rights set
forth elsewhere in this Agreement, Undersigned hereby authorizes
Bank, and Bank sball have tbe continuing rigbts at any time, whether
or not any default bas occurred under tbis Agreement, and at its sole
option and discretion, without not~ to: (3) lake over and collect any
or all of the accounts and to take any otber action pursuant to its
power of attorney granted herein; (b) exercise absolute and exclusive
dominion and control over all funds deposited in tbe Cash Collateral
account; apply any funds therein against any Obligations; and ebarge
to any deposit acrount of Undersigned any Item of payment credited
to tbe Casb CoDateral account which is subsequently disbonored; (e)
at any reasonable time, tbrougb its authorized agents and employees,
inspect, audit, and verify the accounts and the inventory, review
Undcrnigned's books and records, and copy or make excerpts from
any document; and (d) verify accounts witb debtorn in the name of
Undersigned, Bank, or Bank's designee.
11. MlScelllDU!ous Provisions. (a) Undersigned waives protest of all
commercial paper at any time beld by Bank on which Undersigned is
in any way liahle, notice of nonpayment at maturity of any and all
accounts, and (except wbere requested bereby) notice of action taken
by Bank; and bereby ratifies and confirms whatever Bank may do.
The rights and remedies of Bank hereunder are cumulative. Bank
shall be entitled to exercise any rigbt notwithstanding any prior
exercise, failure to exercise or delay in exercising any such rigbt. (b) If
any provision bereof shall for any reason be held invalid or
unenforceable, DO other provision shal1 be affected thereby, and this
Agreement sbaII be construed as if tbe invalid or unenforceable
provision bad never been a part of it. The descriptive beadings of this
Agreement are for convenience only and shall not in any way affect
the meaning or construction of any provision bereof. (e) The rigbts
and privileges of Bank contained in this Agreement sball inure to tbe
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 sball in
all respects be governed by the laws of tbe state where tbe
Obligations are payable as reflected in the document(s) evidencing
sueh Obligations (except to tbe 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. (I)
Undersigned bereby irrevocably appoints Bank and each bolder
bereof as Undernigned's attorney-in-fact to: (I) endorse
Undernigned's name to any draft or check wbieb may be payable to
Undersigned in order to collect the proceeds of any. insurancc 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, ineluding executing any
document on Undernigned's bebalf. (g) Undersigned sball bear tbe
risk of loss of, damage to, or destruction of the Collateral, and
Undersigned hereby releases Bank from all claims for Ioss'or damage
to the, CoIla:te~1 caused by any act or omission on ttle part of Bank,
except for willful misconduct. (h) The prOlhpt and faitbful
performancc of all of Undernigned's Obligations hereunder,
including witbout limitation, time of payment, is of tbe essence of this
Agreement. (i) Copies or reproductions of this document or of any
financing sta!.em~llt Illay be filed as a financingstatemenl.
12 AddirioM! Power of Attorney. In addition to the powers of
attorney granted to Bank by Undernigned elsewhere in this
Agreement, Undersigned bereby appoints Bank and its officcrn,
J>",n... ':t.-oF A
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. PARTtES
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,J.lEWllLE~ PA 11241
Ik-bto<:' JUUDc (l1Ld name n~~ if indivi<lual) '-nd r.1JIi1i.Jlc: addft:.U;
yaUIofG's FOOO MARI::ET
RD 3 IIOX 3t6- "',"\-
N"ovtllE. PA 172'1
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H~\\on lan\:.. N...
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Sl>CURED P.mTYSICNJ\.TURE(S)
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ACCC1JKT$, Gtf.lEUt. UluJtGlstes. JC:llXl~elTS:,~nEL PAPER..
UlSTlWfEMT$', IJOTES, DWts, WTEI-S}iR. .Ani/ICES Of aEOIt.
RECEIVJ\.BlES. OllER I.MlUlTs WING 10 DE8raa, fiXTURES.
IUlUU1UIlE IJI) l<aJlfllElft. ALL ~R.OOIJCT$. Alln;CASH AHlJ
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UCC FINANCING STATEMENT AMENDMENT
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Detail report item jll printed by: DOTTIE HOFFMAN on 2/22/01
'===============================1=============================================
PENNSYLVANIA UCC DETAIL REPORT
UJ\TJ\ COVERJ\C;E THROUGH
1''1':11 Il~" ::' Il (] ]
SEJ\HClI CmlI '],1':'1'1':
FF,n ;:;:-:, 70()
(lH: ~,CJ J\M le;T
==~======================~====================~==============================~
Filing Location:
SECRETARY OF STJ\TE OF' PENNSYLVANIA
}08 NORTIi OrFIcE: 8\IT].[lING
IiARRISBURG, PA. 17105-8722
Original Filing Number:
Original Filing Date:
26811373
06/23/1997
Colla teral :
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 I
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 EXPERIP
BE LIABLE FOR INDIRECT, INCIDENTAL, CONSEQUENTIAL OR SPECIAL DAMAGES RESULTIN(
FROM THE USE OF SUCH INFORMATION.
THE FOLLOWING DATA IS FOR INFORMATION PUfU'OSES ONLY AND IS NOT AN OFFICIAL
RECORD. CERTIFIED COPIES MAY BE OBTAINE[) FROM THE PENNSYLVANIA DEPARTMENT OF
STATE.
~
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FORBEARANCE AGREEMENT
This forbearance agreement ("Agreement") is made this ~day Of~, 2005 by
and between Sang Ho Kwak, individually and d/b/a Say-Ford Supermarket aIkIa Sayford Supermarket
(hereinafter, Say-Ford Supermarket and Sayford Supermarket will be referred to as "Say-Ford
Supermarket") and d/b/a Young's Food Market ("Mr. Kwak") and Mellon Bank, N.A., now by
assignment, Citizens Bank of Pennsylvania (the "Bank").
. WITNESSE TB:
WHEREAS, on or about May 28,1999, the Bank made a loan to Mr. Kwak and Yon Hwa
Kwak: ("Mrs. Kwak:") Gointly, the "Kwaks") in the amount of $395,000.00 (the "Loan");
WHEREAS, the Loan is evidenced by a note and security agreement dated May 28, 1999 (the
''Note'');
WHEREAS, in order to induce partially the Bank to make the Loan, the Kwaks executed and
delivered to the Bank a rnortgage (the "Mortgage") on their improved real estate situate in the
Township ofFrankford, Cumberland County, Pennsylvania, as more particularly described in
Cumberland County Mortgage Book 1552, pages 43 1 e( seq. (the "Mortgaged Property");
WHEREAS, in order to induce partially the Bank to make the Loan, Mr. Kwak, individually
and d/b/a Say-Ford Supermarket granted the Bank a security interest in, among other things, his
equipment, machinery, motor vehicles, furniture, fixtures, inventory, accounts and contract rights
(collectively, the "Say-Ford Collateral"), as evidenced by a security agreement (the "Say-Ford
646216.3
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,
Security Agreement") and as perfected by certain UCC-1 financing statements (the "Say-Ford UCC-I
Financing Statements'');
WHEREAS, in order to induce partially the Bank to rnake the Loan, Mr. Kwak, individually
and d/b/a Young's Food Market granted the Bank a security interest in, arnong other things, his
equipment, machinery, motor vehicles, furniture, fixtures, inventory, accounts and contract rights
(collectively, the "Young's Food Market Collateral"), as evidenced by a security agreement (the
"Young's Food Market Security Agreernent") and as perfected by certain UCC-1 financing
statements (the "Young's Food Market UCC-1 Financing Statements");
WHEREAS, Mrs. Kwak is deceased;
WHEREAS, Mr. Kwak defaulted under the terms of the Note for failing to make payments of
principal and interest when due;
WHEREAS, as a result of Mr. Kwak's defaulting under the Note, on or about December 2,
2004, the Bank confessed judgment against Mr. Kwak in the Court of Common Pleas of Cumberland
County at No. 04-6040 in the amount of $384,294.24,. plus interest and costs (the "Confessed
Judgment");
WHEREAS, Mr. Kwak has informed the Bank: of his inability to pay the Note, in accordance
with its terms, and has requested the Bank to enter into this Agreement relative to this one obligation
of the Kwaks to the Bank;
WHEREAS, Mr. Kwak and the Bank wish to enter into this Agreement without the Bank's
waiving any of its rights and remedies under the subject indebtedness, but in an effort to permit Mr.
646216.3
2
._._._..._.._.-.,_..,-_._.._-_._..._------_.~..,_._-~---.._-_._._----~--_._.._._-----_.
Kwak the opportunity to resolve his financial difficulties and to arrange for the repayment of his
obligations to the Bank under the Note;
WHEREAS, in consideration of said forbearance, the parties hereto wish to enter into this
Agreement outlining the terms of the forbearance.
NOW, THEREFORE, intending to be legally bound hereby, and in consideration of the
mutual terms and conditions hereinafter set forth, the receipt and adequacy of such consideration
being hereby acknowledged, the parties hereto mutually agree as follows:
1. Confirmation of Mr. Kwak's Indebtedness. Mr. Kwak hereby confirms and
acknowledges that he is justly and truly indebted to the Bank under the Note, without any setoff or
defenses thereto. There is due to the Bank under the Note as of March 23, 2005 the amount of
$298,840.40, consisting of principal in the amount of$297,289.47 and interest in the amount of
$1,550.93, accruing at the approximate per diem rate of $70.19. It is expressly understood that the
foregoing statement of indebtedness does not include accrued interest from March 14,2005,
attorneys' fees and costs, or other expenses which may be incurred by the Bank if the Bank fmds it
necessary to exercise its rights or remedies under the Loan Documents (as hereinafter defined). It is
further expressly understood that the aforesaid amounts shall be included in the indebtedness due to
the Bank from Mr. Kwak.
2. Confirmation of Loan Documents. Mr. Kwak hereby acknowledges and agrees that
the information contained in the above-referenced recitals is true, accurate and complete, and further
ratifies, confirms and acknowledges that all loan documents (the Note, the Mortgage, the Say-Ford
Security Agreement, the Young's Food Market Security Agreernent, the Say-Ford Financing
646216.3
3
~ ..__________... ____ .______u _.__....._____ ____. _..__. _..____...._._.___.___._.__~_~______..__U.____.~__......_...._.._..__ .._.__ .... ..__.__....
Statements, the Young's Food Market Financing Statements, and any and all addenda or supplements
thereto, and other related documents executed by the K waks, or either of them, and delivered to the
Bank (hereinafter collectively referred to as the "Loan Documents")) concerning the indebtedness as
referenced hereinabove and the Confessed Judgment are valid, binding and in full force and effect as
of the date hereof, and that the Kwaks have no defense, setoff, counterclaim or challenge against the
payment of any and all sums owing under the terms of the Loan Docurnents or the enforcement or
validity of any of the terms thereof.
3. Re-afJirmation of Certain Collateral. Mr. Kwak hereby confirms and re-affirms that
theequiprnent listed on Schedule A hereto is part of the Say-Ford Collateral and/or the Young's Food
Market Collateral and is subject to a perfected, first lien security interest in favor of the Bank. Mr.
Kwak further agrees not to move any or all of the equiprnent set forth on Schedule A frorn the
location set forth on Schedule A without first obtaining the express, written consent of the Bank,
which consent may not be umeasonab1y withheld. Mr. Kwak also agrees not to sell any of the
equipment set forth on Schedule A without first obtaining the express, written consent of the Bank,
which consent rnay be withheld for any reason.
4. Payment of Indebtedness. On or about Decernber 29,2004, Mr. Kwak paid the Bank
$30,000.00, for all past due payments, late charges, attorneys' fees and costs due under the Note and
inconsideration for the Bank's agreeing to enter into this Agreement. On or before April 1,2005,
Mr. Kwak shall pay the Bank a principal and interest payment of$3,923.65. On or before May 1,
2005, Mr. Kwak shall pay the Bank a principal and interest payment of$3,923.65. On or before June
1,2005, Mr. Kwak shall pay the Bank a principal and interest payment of $3,923.65. On or before
646216.3
4
July 1, 2005, Mr. Kwak shallpay the Bank a principal and interest payment of $3,923.65. On or
before August 1,2005, Mr. Kwak shall pay the Bank a principal and interest payment of$3,923.65.
On or before September 1, 2005, Mr. Kwak shall pay the Bank a principal and interest payment of
$3,923.65. On or before October 1, 2005, Mr. Kwak shall pay the Bank a balloon payment of all
646216.3
5
c) Mr. Kwak misrepresents anywarranty or representation given hereunder or
misrepresents any material fact hereunder.
9. Forbearance by Bank. In consideration ofthis Agreement, the Bank hereby agrees
that during the term of forbearance it shall take no action to collect its collateral or to enforce the
within obligations or the underlying obligations so as to provide Mr. Kwak with an opportunity to
resolve his financial difficulties as set forth herein. Said forbearance is conditioned upon Mr. Kwak's
complying with this Agreement.
10. Binding Effect. This Agreement shall be binding upon the parties hereto, their
executors, administrators, heirs, successors and assigns. Mr. Kwak shall not have the right to assign
his rights hereunder without prior written consent of the Bank.
11. Inspections and Appraisals. Mr. Kwak:hereby grants to the Bank the right at any time
and from tirne to time to conduct inspections and/or appraisals of any or all of its collateral, including
the Mortgaged Property, the Say-Ford Collateral and the Young's Food Market Collateral.
12. Goveming Law and Venue. This Agreement shall be governed, construed and
enforced in accordance with the laws of the Commonwealth of Pennsylvania. Any and all disputes
. hereunder shall be commenced and resolved in any of the courts of common pleas of Pennsylvania.
13. No Waiver or Novation. Nothing herein contained and no actions taken by the Bank
herein or in connection herewith shall constitute or be deemed to be a waiver or release of any default
by Mr. Kwak of his obligations, or of the security interests, rights, remedies or privileges afforded to
the Bank thereunder. Nothing herein shall constitute a waiver by the Bank of Mr. Kwak's
non-compliance with the terms of his obligations, nor shall anything contained herein constitute an
646216.3
6
agreement by the Bank to enter into any further agreernents with Mr. Kwak. Neither this Agreement
nor any other documents to be executed in connection herewith is in any way intended to constitute a
novation of or a waiver of any of the underlying obligations. The Note and any and all other
agreements in writing between Mr. Kwak and the Bank shall remain in full force and effect. ill the
event of any inconsistency between the terms of this Agreernent and the terms of the Loan
Documents, the terms of this Agreement shall prevail. All other terms, conditions and covenants set
forth in the Loan Docurnents, except as expressly modified herein, rernain unchanged and in full force
and effect.
14. Extension. Nothing herein shall be construed as a representation or warranty by the
Bank that the forbearance term granted herein shall be extended or renewed and the parties hereto
confirm and acknowledge that no further extensions or renewals have been promised.
15. Time. Time is of the essence of each provision of this Agreement.
16. Construction. The parties acknowledge that each party and each party's counsel have
reviewed and revised this Agreement and that the normal rule of construction to the effect that any
ambiguities are to be resolved against the drafting party will not be employed in the interpretation of
this Agreement or any arnendrnents or schedules hereto.
17. Release. Mr. Kwak hereby waives and releases the Bank, its officers, employees,
agents, representatives, attorneys and directors and their executors, administrators, heirs, successors
and assigns from any and all claims, causes of action, set-offs, recoupments, actions, debts, damages,
liabilities and expenses which they may have against the Bank in connection with the Note, any
6462] 6.3
7
action or inaction of the Bank or in any way related to the Loan Documents and/or the negotiation of
this Agreernent.
18. Voluntary Agreement. Mr. Kwak represents and warrants to the Bank that (i) he is
represented by legal counsel of his choice in regard to the transaction provided for in this Agreement
and that such counsel has explained to him the significance of the terms, and the full meaning and
effect of this Agreement; (ii) he is fully aware and clearly understand all of the terms and provisions
contained in this Agreement; (iii) he has voluntarily, with full knowledge and without coercion or
distress of any kind, entered into this Agreement and the documents executed in connection with this
Agreement; (iv) he is not relying on any representations either written or oral, express or implied,
made to them by the Bank other than as set forth in this Agreement; and (v) the consideration
received by Mr. Kwak to enter into this Agreement and the arrangement conternp1ated by this
Agreernent is fair, reasonable, equitable, actual and adequate.
19 . Modification. This Agreement may not be modified except by a writing executed by
the parties hereto with the same formality as this Agreement.
20. Gender and Number. Unless otherwise specified, the masculine shall include the
feminine and the neuter and vice versa. . Ihesingular-shall include. the.p1ural and.Yice versa....
21. Additional Instruments. Each party shall, at the request of the other party, execute,
acknowledge and deliver whatever additional instruments may be required in order to accomplish the
intent of this Agreement.
22. Invalidity. In the event anyone or rnore of the provisions contained in this
Agreement shall for any reason be held to be invalid, illegal or unenforceable in any respect, such
646216.3
8
. _.._-_.._--_..~_._~--'--_._..,-- .-.,.-..--'. ,,'.. --~.._.~---..
..... '.. -_.'.'",,"-"'_._-~ ---_..._--.'-~
'.
invalidity, illegality or unenforceability shan not affect anyofthe provisions of this Agreement, and
this Agreement shall be construed as if such invalid, illegal or unenforceable provisions had never
been contained herein.
23. Counterparts. This Agreement may be executed in identical counterparts which
together shall constitute a single agreernent.
24. Complete Agreement. This is the complete agreement and there is no written or oral
understanding or agreement directly or indirectly connected with this Agreement that is not
specifically incorporated herein by reference.
25. Waiver of Jury Trial. Mr. Kwak and the Bank irrevocably, as an independent
covenant, waive jury trial and the rights thereto in any action or proceeding between Mr. Kwak
and the Bank.
IN WITNESS WHEREOF, Mr. Kwak and the Bank, intending to be legally bound hereby,
have executed this Agreernent the day and year first above written.
WITNESS:
~(. C.{.I--
ATTEST:
~. --.--J. ..,
\ l'~
MELLON BANK, N.A., now by assignment,
CITIZENS B OF PENNSYLVANIA
BY:
646216.3
9
..
SCHEDULE A
Savford Market Secured Equipment
Sharp ER-A330 Cash Register
TEL SL 9000
Casio PCRT 2000 Cash Register
Mega Refrigerator Unit
Panasonic KX-FP121 Fax Machine
Pre Fab 10 x 12 Walk In Cooler
Bunn Coffee Maker VPS Series
Hobart Meat Tenderizer
Power Cooler 2 Door
Bird Meat Cutter
Beverage Air Deli Cooler
Heat Sealer 20 Inch
True Deli Bar Refrigerator
Berkel Meat Slicer 3340
Hussman Meat Cooler Displays (3)
Berkel Meat Slicer 919/1
Tafco Pre Fab Walk In Cooler 12 Door
Eastern Mfg. Checkout Computer
System
(1) Master Computer
(2) Check Out Stations
Tafco Pre Fab Walk In Freezer 12 Door
Whirlpool Range
Younq's Market (Newville. PAl Secured Equipment
Powers Sliding Cooler with butcher top cover, Ser. No. B947-556
Migdi Deli Case with Bottom Refrigerator, Ser. No. 894004
21/2 x 3' Tappan Chest Freezer
Sturdi-Bilt up Draft and Exhaust Fan
30" Comstock-Castle Stove, Ser. No. 7MM420
Castle Pizza 2-Shelf Oven, Ser. No. 6MM128
Westy Cash Register Sanyo, Ser. No. 63404445
Slicer Model 919-1, Ser. No. 9365-1151-09830
1
./;
~-~~:., 'J .?~" /<:<, h~/
------ ./ I L'::.' -:/ .,~., .:;/-",\
/ SANG HO KWAK L/
Sworn to and subscribed before me
this l th day of ---.fJ..pr i \
,2005.
COMMONWEALTH OF PENNSYLVANIA
Notarial Seal
Rhonda HeKelfinger, Notary Pubfic
City Of Hanisburg, Pauphin County
My Commission Expires Apr. 22, 2008
Member, Pennsylvania Association Of Notaries
I lit I ~ '
~lUrv()Y\-OU-~ N\f/"'""\
COMMONWEALTH OF PENNSYLVANIA
SS:
COUNTY OF LUZERNE
"f:;(,
ON THIS, the J A day of
Flf1e,l
, 2005, before me, the undersigned officer,
personally appeared Joseph E. Sweeney, who acknowledged hirnselfto be Assistant Vice President of
Citizens Bank of Pennsylvania, and that he, being authorized to do so, executed the foregoing
instrument for the purposes herein contained by signing the narne of Citizens Bank ofPennsylvanill, .
by himself, as Assistant Vice President.
IN WITNESS WHEREOF, I have hereunto set my hand and notarial seal.
COMMONWEALTH OF PENNSYLVANIA
Notarial Seal
Jane A Muscavage, No1<iry Public
City Of Wllkes.Barre, Luzeme County
My Commission Expires Nov. 3, 2007
Member. Penn6y1v0nia Association Of Notaries
~~
~. ~
N~ Y LIC. ~/
COMMONWEALTH OF PENNSYLVANIA
COUNTY OF
SS:
ON THIS, the ~ day of ---.11p r I
, 2005, before me, the undersigned officer,
personally appeared Sang Ho K wak, known to be (or satisfactorily proven) to be the person whose
name is subscribed to the within instrument, and acknowledged that he executed the same for the
purpose therein contained.
IN WITNESS WHEREOF, I have hereunto set my hand and notarial seal.
~'lm~;
646216.3
COMMONWEALTH OF PENNSYLVANIA
Notarial Seal
Rhonda Heffelfinger, NotaJy Public
City Of Harrisburg, Dauphin County
My Commission ExcIres /\Dr. 22.l!OOB
,
I
\
~ECEIVtu AUG 302005
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 and YON HW A KW AK
672 Bloserville Road
Newville, PA 17241,
Defendants
NO. Of: -4Af~l
CL~~tT 02-~
ORDER
AND NOW, tlri, qfh d,y Of~ 2005," f(tXJ o'dock p-.m., it i, h=by
ordered that there will be a hearing on the Plaintiffs motion for writ of seizure, on the J..5M day of
Ol'hrnJH.AJ ,2005, at I :30 o'clock, f--.m., at the Cumberland County Courthouse,
One Courthouse Square, Carlisle, Pennsylvania, Court Room I .
~
.
sc: Sang Ho Kwak
Yon Hwa Kwak
Michael L. Solomon, Esquire
James T. Shoemaker, Esquire
677410.1
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 PENNSYL V ANlA
8 West Market St.
Wilkes-Barre, PA 18701,
IN THE COURT OF COMMON PLEAS
OF CUMBERLAND COUNTY
CIVIL ACTION -- LAW
Plaintiff
REPLEVIN
vs.
SANG HO KW AK, Individually and d/b/a
Young's Food Market and YON HW A KW AK:
672 Bloserville Road
Newville, P A 17241
Defendants
NO. 05-4421 Civil Term
CERTIFICATE OF SERVICE
1, JAMES T. SHOEMAKER, ESQUIRE, hereby certify that I am serving a true and
correct copy of the foregoing notice of hearing for seizure of property upon the defendants, by
depositing said document in the United States mail, first class, post pre-paid, addressed as
follows:
Sang Ho Kwak, individually
and d/b/a Young's Food Market
672 Bloserville Road
Newville, PA 17241
683262.1
Sang Ho Kwak, individually
and d/b/a Young's Food Market
22 Chatham Way
Harrisburg, P A 1711 0
Sang Ho Kwak, individually
and d/b/a Young's Food Market
1307 N. 3'd Street
Harrisburg, PAl 7102
Sang Ho Kwak, individually
and d/b/a Young's Food Market
2208 Chatham Way
Harrisburg, PAl 711 0
Sang Ho Kwak, individually
and d/b/a Young's Food Market
RD #3, Box 672
Newville, P A 17241
Yon Hwa Kwak
1307 N. 3'd Street
Harrisburg, P A 17102
Yon Hwa Kwak
22 Chatham Way
Harrisburg, PA 17110
Yon Hwa Kwak
672 Bloserville Road
Newville, P A 17241
Yon HwaKwak
2208 Chatham Way
Harrisburg, PAl 7110
683262.1
Yon Hwa Kwak
RD #3, Box 672
Newville,PA 17241
Michael L. Solomon, Esquire
Thomas, Thomas, Armstrong & Niesen
212 Locust Street, Suite 500
P.O. Box 9500
Harrisburg, PA 17108-9500
Respectfully submitted,
Hourigan, Kluger & Quinn, P.c.
~5-
----.
BY:
James T. Shoemaker, Esquire
LD. No. 63871
Counsel for the plaintiff, Mellon Bank, N.A.,
now by assignment, Citizens Bank of
Pennsylvania
600 Third Avenue
Kingston, PA 18704-5815
(570) 287-3000 (telephone)
(570) 287-8005 (facsimile)
Dated: September 20
,2005
683262.1
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SHERIFF'S RETURN - OUT OF COUNTY
CASE NO: 2005-04421 P
COMMONWEALTH OF PENNSYLVANIA:
COUNTY OF CUMBERLAND
MELLON BANK NA NOW CITIZENS
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 COMPLAINT & NOTICE
On September 23rd , 2005 , this office was in receipt of the
attached return from DAUPHIN
Sheriff's Costs:
Docketing
Out of County
Surcharge
Dep Dauphin County
Postage
18.00
9.00
10.00
42.00
4.32
83.32
09/23/2005
HOURIGAN KLUGER
So answers.;.-
:.::"":,,,,:.>>/" "" , ....-:.~::-
//;~ee4?/--;4?
/ , ' -
R. Thomas Kline
Sheriff of Cumberland
County
QUINN
Sworn and subscribed to before me
this J0 day of 4km~Cf'
)06> ~~~
SHERIFF'S RETURN - OUT OF COUNTY
CASE NO: 2005-04421 P
COMMONWEALTH OF PENNSYLVANIA:
COUNTY OF CUMBERLAND
MELLON BANK NA NOW CITIZENS
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 D/B/A YOUNG'S
FOOD MARKET
but was unable to locate Him
in his bailiwick. He therefore
deputized the sheriff of DAUPHIN
County, Pennsylvania, to
serve the within COMPLAINT & NOTICE
On September 23rd , 2005 , this office was in receipt of the
attached return from DAUPHIN
Sheriff's Costs:
Docketing
Out of County
Surcharge
So answers,
,
6.00
.00
10.00
.00
.00
16.00
09/23/2005
HOURIGAN KLUGER
/ ~
.' <y-~~..- /?/-;f- ~~2_--'--"""
R. Thomas Kline
Sheriff of Cumberland County
QUINN
Sworn and subscribed to before me
this
:So
)..0 D)
day of ~~.r(l1 ~%
A'D',~
W~;?
. ~~onot y
SHERIFF'S RETURN - OUT OF COUNTY
CASE NO: 2005-04421 P
COMMONWEALTH OF PENNSYLVANIA:
COUNTY OF CUMBERLAND
MELLON BANK NA NOW CITIZENS
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 COMPLAINT & NOTICE
On September 23rd , 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
09/23/2005
HOURIGAN KLUGER
So answers;
---'_..-v( ----=----_,.~. -.,~--:;::::;~..
// '" /'.y- /-r:~-
R. Thomas Kline
Sheriff of Cumberland County
QUINN
Sworn and subscribed to before me
this ~() day of ~1~b..t,.y
~o';(~;E~J
, vp;r;:~ary
In The Cou.rt of Common Pleas of Cumberland County, Pennsylvania
Mellon Bank NA
VS.
Sang Ho Kwaket al
SERVE: Sang Ho Kwak
No.
05-4421 civil
Now,
Septeml;ler..16, 2005
, I, SHERlFF 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.
~~~~
Sheriff of Curnberland County, PA
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
Sworn and subscribed before
me this _ day of ,20_
COSTS
SERVICE .
lvITLEAGE
AFFIDAVIT
$
$
In The Court of Common Pleas of Cumberland County, Pennsylvania
Mellon Bank NA
VS.
Sang Ho Kwak et al
Sang Ho Kwak d/b/a Young's Food Market
SERVE:
No.
05-4421 civil
Now,
Septffill;ier.16, 2005
, 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
Sheriff ofCurnherland COUllty, PA
Affidavit of Service
Now,
,20_, at
o'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
AFFIDAVIT
$
$
In The Cou.rt of Common Pleas of Cumberland County, Pennsylvania
Mellon Bank NA
VS.
Sang Ho Kwak et al
SERVE: Yon Hwa Kwak
No.
05-4421 civil
Now,
Septem~er.16, 2005
, 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.
"../"/~/ /~
~~~4~
Sheriff of Cumberland County, PA
Affidavit ofSe:rvice
Now,
,20_, at
o'clock
M. served the
within
upon
at
by handing to
copy of the original
a
and made lmowll to
the contents thereof.
So answers,
Sheriff of
County, PA
Sworn and subscribed before
me this _ day of ,20_
COSTS
SERVICE
MILEAGE
AFFIDAVIT
$
$
@ffice of tIre ~4eriff
William T. Tully
Solicitor
Charles E. Sheaffer
Chief Deputy
Mary Jane Snyder
Real Estate Deputy
Michael W.Rinehart
Assistant Chief Deputy
Dauphin County
Harrisburg, Pennsylvania 17101
ph: (717) 780-6590 fax: (717) 255-2889
Jack Lotwick
Sheriff
Commonwealth of Pennsylvania
MELLON BANK NA
vs
County of Dauphin
KWAK SANG HO
Sheriff's Return
No. 1642-T - -2005
OTHER COUNTY NO. 05-4421 CIVIL
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 SANG HO
the DEFENDANT named in the within NOTICE/COMPLAINT & BRIEF SUPPORT OF PTF
and that I am unable to find him/her in the County of Dauphin, and
therefore return same NOT FOUND, September 21, 2005
PROPERTY SOLD IN SPRING - MOVED TO CUMBERLAND COUNTY
Sworn and subscribed to
So Answers,
?I!~
lefore me this 21ST day of SEPTEMBER, 2005
Sheriff of Dauphin County, Pa.
~~
By
NOTARIAL SEAL
MARY JANE SNYDER, Notary Public
Highspire, Dauphin County
My Commission Expires Sept 1, 2006
Deputy Sheriff
Sheriff's Costs: $42.00 PD 09/20/2005
RCPT NO 210728
@ffice of t4c ~4~riff
William T. Tully
Solicitor
Charles E. Sheaffer
Chief Deputy
Mary Jane Snyder
Real Estate Deputy
Michael W. Rinehart
Assistant Chief Deputy
Dauphin County
Harrisburg, Pennsylvania 17101
ph: (717) 780-6590 fax: (717) 255-2889
Jack Lotwick
Sheriff
Commonwealth of Pennsylvania
MELLON BANK NA
vs
County of Dauphin
KWAK SANG HO
Sheriff's Return
No. 1642 -T - -2005
OTHER COUNTY NO. 05-4421 CIVIL
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 NOTICE/COMPLAINT & BRIEF SUPPORT OF PTF
and that I am unable to find him/her in the County of Dauphin, and
therefore return same NOT FOUND, September 21, 2005
PROPERTY SOLD IN SPRING - MOVED TO CUMBERLAND COUNTY
Sworn and subscribed to
So Answers,
Jf~
lefore me this 21ST day of SEPTEMBER, 2005
Sheriff of Dauphin County, Pa.
~A/
By
NOTARIAL SEAL
MARY JANE SNYDER, Notary Public
Highspire, Dauphin County
My Commission Expires Sept 1, 2006
Deputy Sheriff
Sheriff's Costs: $42.00 PD 09/20/2005
RCPT NO 210728
(1\)ffite of tlp~ ~4criff
William T. Tully
Solicitor
Charles E. Sheaffer
Chief Deputy
Mary Jane Snyder
Real Estate Deputy
Michael W. Rinehart
Assistant Chief Deputy
Dauphin County
Harrisburg, Pennsylvania 17101
ph: (717) 780-6590 fax: (717) 255-2889
Jack Lotwick
Sheriff
Commonwealth of Pennsylvania
MELLON BANK NA
vs
County of Dauphin
KWAK SANG HO
Sheriff's Return
No. 1642-T - -2005
OTHER COUNTY NO. 05-4421 CIVIL
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 SANG HO D/B/A
YOUNG'S FOOD MARKET
the DEFENDANT named in the within NOTICE/COMPLAINT & BRIEF SUPPORT OF PTF
and that I am unable to find him/her in the County of Dauphin, and
therefore return same NOT FOUND, September 21, 2005
PROPERTY SOLD IN SPRING - MOVED TO CUMBERLAND COUNTY
Sworn and subscribed to
So Answers,
Jf~
lefore me this 21ST day of SEPTEMBER, 2005
Sheriff of Dauphin County, Pa.
~&J
By
NOTARIAL SEAL
MARY JANE SNYDER, Notary Public
Highspire, Dauphin County
My Commission Expires Sept 1, 2006
Deputy Sheriff
Sheriff's Costs: $42.00 PD 09/20/2005
RCPT NO 210728
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
ClTlZENS BANK OF PENNSYL V ANlA
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
Box 672, RD#3 Bloserville Road
Newville, PA 17241,
Defendants
NO. oS - tl4~l C.I~~L 1~
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 ajudgment may be entered against you by the Court without further notice for any
money claimed in the Complaint or for any other claim or relief requested by the Plaintiff. You may lose
money or property or other rights important to you.
677397.1
Tr~l,r~ ("
In
'- ';j.~P~~I,j~
""TotlwnDrdry
.,~. :--.. -'. ",... '-"'"'17'" ---n.
~ . <i ' -;",. ";"_:~ I:'"'. ;.,
~ Jnv1
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 INFORMA nON ABOUT HIRING A LAWYER.
IF YOU CANNOT AFFORD TO HIRE A LAWYER, THIS OFFICE MAY BE ABLE TO
PROVIDE YOU WITH INFORMATION ABOUT AGENCIES THAT MAY OFFER LEGAL
SERVICES TO ELIGIBLE PERSONS AT A REDUCED FEE OR NO FEE.
COURT ADMlNlSTRATOR
Cumberland County Court House
Carlisle, PA 17013
(717) 249-1133
-or-
PENNSYLVANIA LA WYERS 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
~.
677397.1
Ext. 1126
Direct e-mail: ishoemakeralihkqpc.com
August 26, 2005
Sang Ho Kwak, individually
and d/b/a Young's Food Market
RD#3
BOX 672
Newville, PAl 7241
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,
~
James T. Shoemaker, Esquire
JTS:dg
THIS NOTICE DOES NOT SUPERCEDE YOUR OBLIGATIONS UNDER THE FOREGOING
NOTICE TO PLEAD
679988.[
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.
CIVIL ACTION -- LAW
REPLEVIN
SANG HO KW AK, individually and d/b/a
Young's Food Market, and YON HWA KWAK
RD#3, Box 672
Newville, PA 17241,
Defendants
NO.
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:
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,
PA 17110.
3. Upon information and belief, Yon Hwa Kwak is deceased.
677402.1
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, "Young's Collateral"), as evidenced by a security
agreement (the "Security Agreement") and as protected by certain UCC-1 financial statements (the
"UCC-l Financial Statements"). (A true 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.
8. As a result ofMr. Kwak's default under the terms of the Note, the Bak and Mr. Kwak
entered into a forbearance agreement dated April 12, 2005 (the "Forbearance Agreement"), upon the
terms and conditions more particularly set forth therein. (A true and correct copy of the Forbearance
Agreement is attached hereto as Exhibit "c" and incorporated herein by reference.)
9. Mr. Kwak defaulted under the terms of the Forbearance Agreement by failing to make
payments of interest due under the Forbearance Agreement.
677402.]
2
10. The fair market value of the Young's Collateral is unknown, but is believed to be less
than the amount due and owing the Bank by the Kwaks under the Note.
11. The Bank believes and therefore avers that Mr. Kwak has possession ofthe Collateral.
12. 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.
13. The balance of the Note as of August 8, 2005 was $296,891.95, consisting of principal in
the amount of$291,949.92, accrued interest in the amount of$4,706.61, and late charges in the amount
of$235.42, 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$296,891.95, plus interest from August 8, 2005, 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,
HOURI~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, P A 18704
Telephone (570) 287-3000
Facsi~il2'(570) 287:8005
Dated. ,'::h_,r Z.. ,2005
,
677402.1
3
$ 395,000.00
Promiso To PiJY. FOR VALUE RECEIVED,arid intending to he legally
bound, Unckr.signcd, as defined lx~lo\\', promiscs 10 pay to:
Mpl,12p_nank..L--.U~_.._____ _~.________~
("Bank") or its order at .
Harriobu_~r pennsylvaola
11)(:; sum of
Three Hundred Ninety Five Thousand and
QQjl00
Dollarn ($ 395,000.00 ), :with interest on the
outstanding balance from the dale of; this PromISSOry Note
('Note') at the rate(s) ('Contractual Ratqs)") and in accordance
with the repayment schedule specified belqw.
Contractual Rato(s); Repayment Schodules. ~
o Interest at a rate per annum;which is %
above Bank's Prime Rate, such rate to cm.nge from time to ti!ne
as of the effective date of each announced change in such Prime
Rate shall be paid when principal Mnts arc due. Principal
sball 'be paid in consecutive f\lOnthly installments of
$ each, commencing \In ,
and continuing thereafter on the i day of each month
with the balance of the indebtedness, if nilt 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
tbe effective date of each change in or r~ting of the CD Rate,
shall be paid when principal payments ar~ due. Principal shall be
paid in consecutive m<jnthly insta~ents of
$ each, I commcncmg on
, and continuirl,g thereafter on the
day of each month with the balance of the
indebtedness, if not sooner paid,. que and payable on
,
,
o The principal balance ~eJl'Of, together with all
accrued and unpaid interest, shall be paid on ,
and interest at a rate per annum which is % above
Bank's Prime Rate, such rate to change tram time to time as of
the effective date of each announced cha*ge in such Prime Rate,
shall be paid on the day of ~ch!month commencing on
.-
,
I
o The principal balance ht' f, together with all
.accrued and unpaid intercst, shall be pal on ,
and interest at a rate per annum which. % above the
CD Rate such rate to change from me to time as of the
effective date of eaeh change in or rcsctti~ of the CD Rat~, shall
be paid on the day of each tOoth commencmg 00
. I
o In no event shan the rate charged I' on this Note exceed
4 % per annum. .
o The principal balance $ h f, togelher 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 oommenemg on
, .. y.~' ~'
IXI ...> ~ ~ Interest shall be calcu ted at the rat,: ?f
R ~n % per annum. Principal and tcr~t shall be patd m
17Q . consecutive monthl ~lImcnts of
S 3.<J:>3 Ii'> cach,oo
.
~
"
"
w
~
w
~
"'
-'
~
"
;1
07{01{1999 . and coolinuing thercaflcr on lhe --131'--_
Zby of cachlllOcllh with thc halJncc _of the indchlcdnes, if not
sooner paid, due amI payable on 0&/01/2014 . During :lny
pcri(xl th3.I the ('...onlraetual Ralc(s) i.<; reduced by 0.75% per
annum, as dcxrioc,d chcwhere in this Note, installments of
principal and interest shall instead be in the amount of
$ 3 f 864.70 each. If the reduction in the Contractual
Ralc(sf'"is no longer in effect, the amounl of installments of
principal and interest shall return {o and be the same as the amount
of such installments prior to the reduction in the Contractual
Ratc(s).
Undersigned shall pay Bank concurrently with the execution and
delivery hereof, or Undernigned previously has paid Banle, an
origination fee of $ 3 ,950. 00 . to compensate Bank
for its underwriting, origination and administration of the loan
evidenced by tbis Note. This fee sha1l be deemed fully earned by
Bank on the date hereo~ sball not be refunded, and is in addition
(0 any other fccs, rosts or expcuscs which may be due and payable
hereunder.
Unless Und=igned bas authorized Bank to take payments out of
a Mellon O1cc1dng Account, as set forth below, Undersigned will
mail or deliver (0 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 Und=igned authorizes Bank to take all
payments of principal and/or intercst and/or other amounts due
under this Note out of Und=igned's McI10n O1ccIdng Account
Number . . tilled in the name(s) of
. on or
after the day of each trloOllL Undersigned will keep a
sufficienlbalancc in tbis aCCOUnt ti; cover the full amounts of all
required payments. At. its option, Bank may. t~nninate
Undernigned'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 eff~ an~
provided that Undersigned keeps a sufficient balance In thIS
account to covcrthe full amounts of all required payments, tbe
Contractual Ratc(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 vemdns of Undersigned's name.
If the <>riginal principal amount of this Note is in excess of
$10,000.00, or if Updernigned is a corporation, iptercst shall be
calculated on the basis of a 360-day year aod 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 lhe 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 intercs\ rates charged by Bank to
other borrowers and is not solely based or dependent upon the
interest rate which Bank may charge any particular borrower or
dass of borrowers.
If a single certificate of deposit is held by Bank as cotlateral security
for the indebtedness evidenced by this Note, as more f~lIy
described in the Assignment of Deposit Account cxpress~y referring
to this Note, ~CD Rate' sball mean-",.lbe intcrest ':'lte paId by Bank
()(l such ocrtifi~e of deposit (the 'G!i1i~te'), saId CD Rate to be
"., }, Page 10f5
.).,'
,.
.
. /
reset by Bank at each renewal of the Ccriificatc_ If more than one
certificate of deposit is held by Bank as collateral security for the
indebtedness evidenced by this Notc, as more fully described in the
As..'iignmcnt(s) of DC[XJsit Account expressly referring to this Note,
"CD Rate" shall mean the highest of the interesl rates paid hy Bank
on such certificates of uCfXJsit (lhc "CcrtifiGIlCS"), s;lid CD Fate [0
be reset at each renewal of each Certificate.
Lata Chargo. 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 win pay
a laIc 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 latc charge shall be in addition (0 any increase
made to the Contractual Ratc(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 applicahle fees, charges and costs.
Oelauft 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 Ratc(s) until the earlier of the date that sueh
Event of Default bas been cured or until and including the date of
maturity bereo(
After maturity, whether by aoccleration or otherwise, interest shall
accrue at a rate equal to two percent (2%) per annum above the
Contractual Ratc(s) until all sums due hereunder are paid. Interest
shall continue to acaue after the entry of judgment (by confessioD or
otherwise) at the Contractual Ratc(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 Ratc(s).
Books and Records; Time of Essence. So Ioilg as Banle is the
bolder hereof, Bank's books and rcoords shall be presumed, except
in the case of manifest error, to accurately evidence at all times all
amounts outstanding under t~is Note and the date and amount of
each advance and payment made pursuant hereto.
The prompt and faithful performance of aU of Undernigned'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 aU 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 Banle, 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 Undroigned shall
renew, or cause to be renewed, the Certificate(s), if any, until the
indebtedness evidenced by this Note has been paid in fult
Undersigned further agrees that Undersigned win execute, or will
cause to be executed. upon demand by Dank: any financing
statements or other documents, induding" without limitation,
additional Assignments of Deposit Ac:eount, which Bank may deem
ncocssary or desirable to evidence, pedoct or maintain pedcction of
the security interests created in the Certiftcatc(s) and any renewals,
replacements and substitutions therCQf.
Additional Tenus and Conditions
\. Covenants. Undersigned oovcnants and agrees that until all
indebtcdncs.~ evidenced hereby has been paid in full, Undersigned
shall: (a) ~la~nlain at all timcs,3 JXlSitive tangible net worth; (b) (I)
have all I:nvJronmental Pcrnllls necc5S.:'1ry for the conduct of each
of Umkrsigncd's husinc$ses and operations, (2) conduct each oj
Undersigned's businesses and operations in material compliance
with all applicahle Environmental Laws and r;;nvironmcntal
Permits, (3) not permit to exist any event or condition that requires
or is likely 10 require Undersigned under any Environmental Law
to payor expend funds by way or 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 nperations of Undersigned or materially
adve=1y affect the financial condition of Undernigned, (4) notify
Bank promptly upon becoming aware of any pending or threatened
proceeding, suit, investigatioo. allegation or inquiry regarding any
alleged cvenl 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, judgmentsl damages, deaning, remediation or the like, and
(5) provide at Undersigned's cost, upon request by Bank,
certifications, documentation, copies of pleadings and otber
information regarding the above, all in form and content
satisfactory to Banle; (c) conduct each of Undernigned'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, nOYt or
hereafter in existence, directly or indirectly relating to or affecting
Undernigned's businesses or operations; (d) use the proceeds of the
loan evidenced bereby only for business purposc(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 Ollef
Executive Office; (I) purchase and maintain policies of insurance
(lOeluding llood insurance) to protect 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 Banle's option, designate
Bank as loss payee and/or as additional insured, and/or contain a
lender's 1= payable endon;cment, and (3) be (or certificates
evidencing same shall be) deposited with Banle; (g) (1) maintain
and keep proper rcoords and booI:s of account in conformancc with
generally accepted accounting principles applied on a consistent
basis in which full, true and correct entries shall be made of all
Undernigned's dealings and business affairs, (2) provide to Bank at
Undersigned's_ cost, upon Bank's request, financial or other
information, documentation or certifications (induding 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
r=ivable and payable aging reports), all in form and content
satisfactory to Banle, and (3) permit, upon request by Banle, any of
the officern, employees or representatives of Bank to visit and
inspect any of Undernigncd's properties and locations and to
examine its bcx:dcs and records and dlscuss 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 has become
insufficient 10 ~re said lndebtcdncss; (i) pay, upon demand by
Banle, (1) all costs and fees pertaining to the filing of any financing,
continuation or tennination statements. mortgages. satisfaction
pieces, judgments and any other type of document which Bank
dooms n=ry or desirable to be fIled with regard to security
interests which secure the' indebtedness evidenced hereby,
regard1= pf whether such seqirity interests were grouted by
Unde",i~and (2) all costs anif~ inrurred by Bank In
. .
'. Page 20f5
').,'
wnnectidn with any coUaleral securing this Note (including without
lim;tation all advances made by Bank for taxes, levies, insurance,
repairs to or maintenance of said collateral, appraisal or valuation
of s,..1id collateral, and determination of f1cxxl hazard), regardless of
whether such collateral is owned by Undersigned; and (j) pay, upon
dcm::md hy Bank, all amounts incurred by Bank in ronncction v,ith
allY action or proceeding taken or commenced by Bank to enforce
Of collect this Note, including attorney's fees equal to the lesser of
(I) 20% of the ouLstanding principal balance and interest then due
hereunder or $500.00, whichever is greater, or (2) the maximum
amount pcrmitted by law, plus attorncy's costs and aU 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; (h) the breach by any Obligor (defined as Undernigned 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 tenns 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; (e) with
respect to any Obligor: (1) death or incapacity of any individual or
general partner, or (2) dissolution of any partnernhip or
corporation; (d) any assignment for the benefit of creditors by any
Obligor; (e) insolvcncy 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 pelOOnaI property securing
the indebtedncss evidenced by this Note is located; (11) the
garnishment, tax assessment, attachment or taking by
governmental authority or other creditor of any propcrly of any
Obligor which is in Bank's possession or which constitutes security
for any indebtedncss evidenced hereby; (I) entry of judgment
against any Obligor in any court of record; (j) the assessment
against any Obtigor by the 'Internal Rcvcnue Service or any olher
federal, state or local taxing authority of unpaid taxes, or the
~uance 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
Bank, which determination shalt be conclusive if made in good
faith, that a material adverse change has occurred in the financial
- or busincss 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 Ihis Note, including the unpaid
halancc of principal and inlerest hereof, shall become immediately
due and payable at the option .of Bank. without any demand or
notice whatsoever; and (b) Banlc may immediately and without
demand exercise any of its rights and remedies granted herein,
under applicable law, or which it may otherwise havc, against
Undcrnigned or otherwise. Notwithstanding any provision 10 the
contrary oontai~ herein, upon the occurrence of an Event of
Default as dcscribCdln 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 Dank whatsoever,
and an action thcrefor shall immediately accruc.
4. Bank's Aigl1ts. Undersigned hereh)' authorizes Bank, and Ibnk
shall hav~ the C(~n(illuing ri~ht, at ~ts sole ~)ption and dlXrction, 10: (:1)
do anythmg whIch Undersigned IS reqUired but fails to do, and in
particular Dank may, if Undersigned fails (0 do so, obtain and pay <In)'
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 rcturned or unc<lrncd
premiums, directly to Bank, and apply such moneys to any
indebtedness or othcr 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 pcrson(s) as any of the Undersigned may direct, except
to the exlent otherwise provided in Section 6 hereof; and (d) add any
amounts paid or incurred by Bank under Section l(i), Section 1(j) or
ScctiOl1 4(a) to the principal amount of the indebtedncss evidenced
by this Note.
5. Authodza6on to Borrow. Undernigned hereby represents, warrants,
certifies and covenants as (OUCNlS:
(a) If Undernigned is a corporation, that the pcrson(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 Undcrnigned), and that the Board of Directorn of Undersigned
has adopted rcsolutions providing that: (1) the pelOOn(s) executing
and delivering this Note on behalf of Undersigned is/are authorized
(i) to incur indebtedncss and obligations on behalf of Undernigned 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, (n) to malee, 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 indebtedncss or obligations, and (ili)
to assign and pledge as collateral secUrity for any such indebtedncss
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 Undernigned, in assigning or pledging any of
Undcrnigned's property for the paymcot 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 Undernigned until a
rcsolutlon amending them shall have been duly and legally adopted
and Bank furnished a certified copy thereof.
(b) If Undmigned is a paitncrnhip, that (1) Undernigned'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 partnernhip; (2) the partncrn
executing and delivering this Note arc authorized (i) to incur
indebtedness and obligations on behalf of Undersigned by borrowing
from or making other financing or credit accommodations with Bank
from lime to time, upon such terms and conditions as they in their
sole discretion deem desirable, (ii) to make, execute, and deliver
promissory notes, klter 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.d plf?ge as oollatcral security for any such indebtedness
or obligationS: 'nOw or hereafter existing, any real or personal
property of Undernigned; (3) the actions of anyone or more partnern
of Undersigned in borrowing money from Bank heretofore for the
account of Undcrnigned, in assigning or pledging any of
Undersigned's propcrty for the paymcot thereo~ or in doing any
other act in, oonncction thercwith...arc hereby ratified, confinned, and
approved; (4).notwithstanding any'modification or terminatIOn of the
Page30f5
.~"
~~
,
power of any of the partnern 10 reprcscmsaid rum, whether by
expiration of the partnership agreement. by death or retirement
of any partner, or the accession of onc or more new partners, or
otherwise, and not\'.rithslanding any other notice thereof Bank
may receive, this authority shall continue to be binding upon each
of the Undersigned individually and u[Xm their Iega!
representatives, and uran Undersigned and ils successors, until
Bank has received notice in \\'filing to the contrary signed byone
of the Undersigned or by Undcr:<iigncd's duly authorized agent
(Receipt of such notice will not relieve any partner of any liability
arising from obligations incurred prior lo Bank's receipt of such
notice.), ;jnd (5) not/ling herein shall be construed to limit the
rights granted to a partner by law or by the partnership
agreement, but all rights granted hcrein shall be in addition to
such rights.
6. DefinWons; Miscellaneous Provisions. (a) Undersigned waives
(except where requested hereby) notice ofactiod laken 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 e}(ercise 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 "",Iiz.e on any such
judgmenL (e) 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 arc for co"""niencc 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 Undernigned shall bind all heirs, personal
representatives, sucecssorn and assigns. (e) lbis Note shall in all
respects be governed by the laws of the slate in which this Note is
payable (except to the extent that federal law governs). (f)
Undernigned hereby irrevocably appoints Bank and each holder
hereof as Undersigned's attorney-in-fact to endorse
Undernigned's name to any draft or chcclc whieb 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 aeknowledgcs that this appoiulment of Bank and each
holder hereof as attorney-in-fact is irrevocable and is coupled
with an interest. (g) Undernigned assigns to Bank all moueys
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 enviranmentallaw. 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, handlingj
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 locat permit. license or authorization
issued under or in connection with any Environmental Law. (j)
'Hazardous Substances' means pctroIcum and petroleum
products, radioactive matcrials, asbestos, radon, lead
containing materials, sewage Of any materials or substancc..'i
defined as or included in the ddinition of "hazardous wastes "
"hazardous substanccs," "hazardous materials," "toxic
:,;u/):')lanCC5," "haf.ardoos air pollutants," "toxic pollutanb,"
"pollution," or terms of similar meaning. as those terms arc
used in any Environmental Law. (k) "Olicr Executive Officc"
means the place from Wllich the main part of the business
operations of an cntity is managed. (I) "Undersigned" rcicrs
individually and collectively to all makers of this Note
including, in the case of any partnership. aU general parlncrs of
such partnership individually and coUcctively, whether or nat
such partnern sign below. Undersigued shall each be jointly and
severally bound by the terms hereof, and, with respect to any
partnernhip executing this Note, each general partner shall be
bound hereby both in such gencral partner's individual and
partnernhip capacities.
7. Direction to Pay Proceeds.Undersigned hereby authorizes and
directs Bank to pay the proceeds of this Note by: . .
VlereditingAcmuntNumber oW--oz.l-1 </'-1<(, .1l{y f, Ze 1-
~~~M~~ /
5{j/ll6)/0 ~DtJ ilWA- K~rr{,-
in the amount of$ . . "11/
I ~mfl $' 52n 00 G{Ij}-/n'jmtliO
''{7]paying (llL? t1 iJJ, T 10/-57"5"-/? &'/J '
j""'\.. A"";1: "'.31 .305.3 ~ Ji ,1 "Zft Zl
the amount of S
~ying DCrJU}CfJJ! %/ltf,IRf
the amount of S
8. Affidavit of Business Loan.(Ibis Affidavit is not applicable if
Uudersigned is a corporation.) Undersigned, being duly
authorized, deposc(s) and say(s) under penalty of petjury that
Undernigned:
(a) WAre engaged in business aslil Owner(s), 0 General
Partner( s) of: (name and nature of business)
YOUNG'S FOOD MARKET AND
SAY-Fof'I? SUPERMARKET if. 9;---'"
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) Exercisc(s) actual control over the managerial decisions of
the business.
(Remainder of page intentionally lel'l blank)
. \\;;' Page 4 of 5
)'
--
9. Confession of Judgment. UNDERSIGNED HEREBY
EMPOWERS THE PR01HONOTARY OR ANY
AlTORNEY OF ANY COURT OF REaJRD TO APPEAR
FOR UNDERSIGNED AND TO CONFESS JUDGMENT
AS OFTEN AS NECESSARY AGAINST UNDERSIGNED
IN FAVOR OF 1111' HOLDER HEREOF, REGAlmLESS
OF WHETHER ANY EVENT OF DEFAULT liAS
OCCURRED, AT ANY 11MB AND AS OF ANY TERM,
POR TIIE OUTSTANDING PRINCIPAL BALANCE
HEREOF PLUS INTEREST DUE UNDER llJE 'ffiRMS
HEREOF AND ALL O1HER AMOUNTS DUE
HEREUNDER, TOGE1HER WlTII COSTS OF LEGAL
PROCEEDINGS AND AN ATfORNEY'S COMMISSION
EQUAL TO TilE lESSER OF (Al 20% OF TilE
OUTSTANDING PRINCIPAL BALANCE AND
INTEREST '!lIEN DUE IIEREUNDER OR $)00.00
WllICIIEVER IS GREATER, OR (B) 'IlIE MAXIMUM
AMOUNT PERMITTED DY LAW, WITII RELEASE OF
ALL ERRORS. UNDERSIGNED WAIVES ALL LAWS
EXEMPDNG REAL OR PERSONAL PROPERlY
FROM EXECUTION.
By signing this Note, Undersigned agrees to all terms or 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 of Business Loan (If completed) sef forth In
Section 8 of this Note.
Witness the due execution hereof under seal.
x
Witness:
:""O~~
Mellon Dank, N.A.
Mellon Bank (DE) National Association
ClA543 R~.(lOll6) LC. 9196 ill 9196
0215 p 166~-38Z3 1 d<543 (01)
0:52199,l6Q5
I
x
,
's FOOD MARKET AND
.gPE-R.MARKBT $".4- y' -F!-~ ."-2-d s;.."i?.;::.c:-'>]...,.J /(",.c 7
672 B ERVILLE ROAD //
NEWVILLE, PA 17241 }'j.L '7tC
Individual:
~UN (VJ(wlu< !J;J-P V~(~
672 ~LOSERVILLE ROAD
NEWVILLE, PA 17241
(Seal)
";'i"
Page 5 of 5
\.
..(i,t.lfl~fl'lllllllll(!jii:i::I(~.'J!IIII'illlllt!1~
..;~~II!ltfllltrll:~!i!;llf:'
For value received, and intending to be legally bound, in
consideration of a loan or other credit accommodation in the
amount of
Three Hundred Ninetv Five Thousand and
00/100
Dollars ($ 395,000.00 ) made by
Mellon Bank, N.A.
~Bank'~to
i~;~~S ~~~v~~r ~D
SAY-F. SU~ERMARKET V
('Borrower(s)'), said obligation evidenced by a
PROMISSbRY NOTE
dated
Undernigned,
follows:
_ -S- - o>fii. <;7 , (the 'Note')
intending to be legally bound, hereby agrees as
1. Securi1y Interest Undersigned hereby grants to Bank a security
intercst in the following property now owned or hereafter acquired
by Undernigned:
(Certain terms used herein arc defined in Section 13 below.)
!XI l~ Yf(,.) all cquip~ent, wherever located, including
roB 10 ry, motor vehicles, furniture and fixtures;
!XI ~ if:;.1I inventory (whether held for sale or lease or to
be is ed under contracts of service), raw materials, work in
process, and materials used or consumed in the conduct of
Undersigned's business, and all haoles, records, invoices or other
documents which describe or evidence lbe same;
!XI c~ Y &fall accounts, contract rights, general intangibles,
~ choses 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 excI1ange for such
securities; and all subscription rights incident to such securities;
o (c) 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).
!.
"
~
w
~
w
~
~
~
~
"
\(,ij
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 payahle on any policy of insurance required to be maintained
under this Agreement, including any returned or unearned
premiums.
All such property subjcct to Bank's security intercsts described in this
Section 1 is referred to herein collectively as the 'CoUateral.' 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 Commereial Code,
except t() the extent that such law docs not apply to certain types of
transacttons or Collateral, in which case applicable law shall govern.
2. Obligations Secured. The Collateral shall secure the following
obligations C'Obligation(s)"): (a) all amounts at any time owing or
payable undl:( the Note, and any other indebtedness, liability or
obligation of Borrower(s) or ofUndernigned 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 remedics of a secured party under any
applicable law, including without limitation, the Uniform
Commercial Code.
8. Additional Representations. In addition to the representations
and warranHes set forth elsewhere in this Agreement, Undersigned
hereby makes the following reprcscntations and warranties whieh
shaU be true and correct on the date of this Agreement and shan
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)
reprcscnts 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
ehaltel paper unless the original of such instrument or chattel
paper has been deposited with Bank; and (4) is nol evidenced by
any judgment unless sueh judgment has been assigned of record to
Bank; and (b) the locations of all of Undernigned'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 Undernigned shall: (a) immediately notify BanI< in
writing in the cvent 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 bave any defense to
payment of, or right of setoff, counterclaim, or recoupment against
any account; (3) any account reprcscnts an amount wbieh is
disputed by the account debtor or the payment of whicb is in any
way contingent or conditional; or (4) the desirability, usefulness, or
marketahility of any of the inventory has been in any way reduced
or impaired by reason of physical deterioration, technical
obsolescence, or otherwise; (b) I<eep accurate and complete books
and records in a<:eordance with generally accepted accounting
principles and, at Undernigned's expense, promptly furnish BanI<
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 sbowing 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
thercof; all of the foregoing to be certified by authorized officern or
other employees of Undernigned; (c) not change any location listed
~ below regarding places of business, inventory and rccords of
accounts without Banl<'s prior written consent; (d) at
Undernigned'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 BanI< forthwith upon receipt, in the original fonn in
wbieh received; (e) Immediately upon Banl<'s request, open a cash
oollateral account ('Cash Collateral account') at BanI< and deposit
therein all cash proceeds of collections on the accounts; (f)
immediately upon Banl<'s request, give the BanI< assignments, in
form acceptable to Banle, of specifie 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 contraet
witb the. account debtor is hreached, cancelled or terminated; (g)
immediately upon Bank's request, furnisb BanI< with all
information received by Undernigned regirrding the financial
condition of any account debtor, except to the CXlent 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 BanI< any judgmeol representing any account
constituting Collateral; and (i) immediately upon Banl<'s request,
mark its records evidencing its accouots in a manner satisfactory to
BanI< so as to show whieh accounts have been assigned to Bank.
10. Additional Rights of Bank In addition to the Banl<'s rights set
forth elsewhere in this Agreement, Undersigned hereby authorizes
Bank, and Bank shall have the continuing rights at any lime, 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 an of the accounts and to take any other action pursuant to its
power of attorney granted herein; (b) exercise absolute and exelusive
drnninion and control over all funds deposited in the Casb Collateral
account; apply any funds therein agairlsl any Obligations; and eharge
10 any deposit acrount of Undersigned any Item of payment crediled
to the Cash Collateral account which is sub5cquently dishonored; (e)
at any reasonable time, through its authorized agents and employees,
inspect, audit, and verify the accouots and the inventory, review
Undersigned's booI<s and records, and copy or make excerpts from
any document; and (d) verify accounts witb debtorn in the name of
Un<lcrsigned, Banle, or Bank's designee.
11. M"lScellaneotlS Provisions. (a) Undersigned waives protest of all
commereial paper at any time held by BanI< on wbich Undernigned is
in any way liable, notice of nonpayment at maturity of any and all
accounts, and (except where requested hereby) notice of action tal<en
by Bank; and hereby ratifies and confirms whatcver Bank may do.
The rights and remedies of BanI< hereunder are eumulative. BanI<
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 bercof shall for any reason be beld 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. 'Ibc descriptive headings of this
Agreement are for convenience only and shall oat in any way affect
tbe meaning or construction of any provision bercof. (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 arc payahte as reflected in the document(s) evidencing
such Obligations (except to the eJrtent 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)
Undernigned hereby irrevocably appoints Bank and each holder
bercof as Undernigned's attorney-in-fact 10: (1) endorse
Undernigned's name to anydraft or checl< whicb may be payable to
Undernigned in order to coUeet 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 tbe Collateral, and
Undersigned bereby 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 prompt 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
finaneing statem~qt may be filed as a financing statement.
12. AdditiolUll Power of Atromey. In addition to the powers of
attorney g"'!lted to Bank by Undersigned elsewhere in this
Agreemenl, Undernigned hereby appoints Bank and its offioern,
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00t-20-2004 08:32am
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. .o.,bu,r n~me (loJ;t name Ul"l'( lfindivlcluuJ) <I..fld DlJlIln& lldJ'=:
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118N!ll~, PA 17241
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ReCEIVA.1llES, Q"n!.E~ w.cultS W1N~ 10 DEaTt4t, f1XtURES.
FUR)Il11Jl>E IJI) ECllJIPMElIT, ALL rROOUCl"S AIIll,CASH All.
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Business P:.,*i~ loan ~tllt
P.O~ Box 3080 ' . .
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Attn= Collatar.l Unf~ .
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ucc FINANCING STATEMENT AMENDMENT
f.OUD'o'tI/d'"ntVC7lCIl'4$~aMMOIoI~ ~
~ NAME &. PHONe of CONTM:I' AT flC..'S' (aptl61U1J
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,:==============================~=============~==~====~===~========~=====~=====
PENNSYLVANIA UCC DETAIL REPORT
IlATA COVElv\C;E TlmOUC;Jj
FICH (]", :)[][) J
:;I':1II\CII UlMI'LF:TI':I!
j'T:11 ;'2, 2([()]
(ir':: :.)9 J~H (C:.)'j')
---------------------------------------------------------------------
---------------------- ----------------------------..----------------.---------- -~=~-~----
Filing Location:
SECRETARY OF STATE OF PENNSYLVANIA
lOR NORTH Offlr;F; Ri!TWTNG
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.
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FORBEARANCE AGREEMENT
This forbearance agreernent ("Agreement") is made this iLday of ~, 2005 by
and between Sang Ho Kwak, individually and d/b/a Say-Ford Supermarket aIkIa Sayford Supermarket
(hereinafter, Say-Ford Supermarket and Sayford Supermarket will be referred to as "Say-Ford
Supermarket") and d/b/a Young's Food Market ("Mr. Kwak") and Mellon Bank, N.A., now by
assigmnent, Citizens Bank of Pennsylvania (the "Bank").
WIT N E SSE T H:
WHEREAS, on or about May 28, 1999, the Bank made a loan to Mr. Kwak and Yon Hwa
Kwak ("Mrs. Kwak") Gointly, the "Kwaks") in the amount of $395,000.00 (the "Loan");
WHEREAS, the Loan is evidenced by a note and security agreement dated May 28, 1999 (the
"Note'');
WHEREAS, in order to induce partially the Bank to make the Loan, the K waks executed and
delivered to the Bank a mortgage (the "Mortgage") on their improved real estate situate in the
Township ofFrankford, Curnberland County, Pennsylvania, as more particularly described in
Cumberland County Mortgage Book 1552, pages431 et seq. (the "Mortgaged Property");
WHEREAS, in order to induce partially the Bank to make the Loan, Mr. Kwak, individually
and d/b/a Say-Ford Supermarket granted the Bank a security interest in, among other things, his
equipment, machinery, motor vehicles, furniture, fixtures, inventory, accounts and contract rights
(collectively, the "Say-Ford Collateral"), as evidenced by a security agreement (the "Say-Ford
646216.3
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Security Agreement") and as perfected by certain UCC-1 financing statements (the "Say-Ford UCC-1
Financing Statements");
WHEREAS, in order to induce partially the Bank to rnake the Loan, Mr. Kwak, individually
and d/b/a Young's Food Market granted the Bank a security interest in, among other things, his
equipment, machinery, motor vehicles, furniture, fixtures, inventory, accounts and contract rights
(collectively, the "Young's Food Market Collateral"), as evidenced by a security agreement (the
"Young's Food Market Security Agreement") and as perfected by certain UCC-l financing
statements (the "Young's Food Market UCC-1 Financing Statements");
WHEREAS, Mrs. Kwak is deceased;
WHEREAS, Mr. K wak defaulted under the terms of the Note for failing to make payments of
principal and interest when due;
WHEREAS, as a result of Mr. Kwak's defaulting under the Note, on or about December 2,
2004, the Bank confessed judgment against Mr. K wale in the Court of Common Pleas of Curnber1and
County at No. 04-6040 in the amount of$384,294.24, plus interest and costs (the "Confessed
Judgment");
WHEREAS, Mr. Kwak has informed the Bank of his inability to pay the Note, in accordance
with its terms, and has requested the Bank to enter into this Agreement relative to this one obligation
of the Kwaks to the Bank;
WHEREAS, Mr. Kwak and the Bank wish to enter into this Agreement without the Bank's
waiving any of its rights and remedies under the subject indebtedness, but in an effort to permit Mr.
646216.3
2
.-----. .~---..._.._---------- ---.---.....-...------.
K wak the opportunity to resolve his financial difficulties and to arrange for the repayment of his
obligations to the Bank under the Note;
WHEREAS, in consideration of said forbearance, the parties hereto wish to enter into this
Agreement outlining the terms of the forbearance.
NOW, lliEREFORE, intending to be legally bound hereby, and in consideration of the
mutual terms and conditions hereinafter set forth, the receipt and adequacy of such consideration
being hereby acknowledged, the parties hereto mutually agree as follows:
1. Confirmation of Mr. Kwak's Indebtedness. Mr. Kwak hereby confirms and
acknowledges that he is justly and truly indebted to the Bank under the Note, without any setoff or
defenses thereto. There is due to the Bank under the Note as of March 23, 2005 the amount of
$298,840.40, consisting of principal in the amount of$297,289.47 and interest in the amount of
$1,550.93, accruing at the approximate per diem rate of$70.19. It is expressly understood that the
foregoing statement of indebtedness does not include accrued interest from March 14, 2005,
attorneys' fees and costs, or other expenses which may be incurred by the Bank if the Bank frods it
necessary to exercise its rights or remedies under the Loan Documents (as hereinafter defined). It is
further expressly understood that the aforesaid amounts shall be included in the indebtedness due to
the Bank from Mr. Kwak.
2. Confirmation of Loan Documents. Mr. Kwak hereby acknowledges and agrees that
the information contained in the above-referenced recitals is true, accurate and complete, and further
ratifies, confirms and acknowledges that al110an documents (the Note, the Mortgage, the Say-Ford
Security Agreement, the Young's Food Market Security Agreement, the Say-Ford Financing
6462 I 6.3
3
Statements, the Young's Food Market Financing Statements, and any and all addenda or supplements
thereto, and other related documents executed by the K waks, or either of them, and delivered to the
Bank (hereinafter collectively referred to as the "Loan Documents")) concerning the indebtedness as
referenced hereinabove and the Confessed Judgment are valid, binding and in full force and effect as
of the date hereof, and that the K waks have no defense, setoff, counterclaim or challenge against the
payment of any and all sums owing under the terms of the Loan Documents or the enforcement or
validity of any of the terms thereof.
3. Re-affirmation of Certain Collateral. Mr. Kwak hereby confirms and re-affirms that
the equipment listed on Schedule A hereto is part of the Say-Ford Collateral andlorthe Young's Food
Market Collateral and is subject to a perfected, first lien security interest in favor of the Bank. Mr.
Kwak further agrees not to move any or all of the equipment set forth on Schedule A from the
location set forth on Schedule A without first obtaining the express, written consent of the Bank,
which consent may not be umeasonably withheld. Mr. K wak also agrees not to sell any of the
equipment set forth on Schedule A without first obtaining the express, written consent of the Bank,
which consent may be withheld for any reason.
4. Payment of Indebtedness. On or about December 29,2004, Mr. Kwak paid the Bank
$30,000.00, for all past due payments, late charges, attorneys' fees and costs due under the Note and
inconsideration for the Bank's agreeing to enter into this Agreement. On or before April 1,2005,
Mr. Kwak shall pay the Bank a principal and interest payment of$3,923.65. On or before May 1,
2005, Mr. Kwak shall pay the Bank a principal and interest payment of$3,923.65. On or before June
1,2005, Mr. Kwak shall pay the Bank a principal and interest payment of$3,923.65. On or before
646216.3
4
July 1, 2005, Mr. Kwak shall pay the Bank a principal and interest payment of$3,923.65. On or
before August 1,2005, Mr. Kwak shall pay the Bank a principal and interest payment of$3,923.65.
On or before September 1, 2005, Mr. Kwak shall pay the Bank a principal and interest payment of
$3,923.65. On or before October 1, 2005, Mr. Kwak shall pay the Bank a balloon payment of all
principal, interest, late charges, attorneys' fees and costs, if any, then due under the Note.
5. Forbearance Term. The Bank hereby agrees to forbear from exercising the rights and
remedies available to it as a result of the defaults which have occurred prior to the date hereof until
the earlier of October 1,2005 or an Event of Default (as hereinafter defined).
6. Interest. Interest will continue to accrue on the outstanding principal balance at the
contractual rate set forth in the Note.
7. Financial Statements. During the term of this Agreement, Mr. Kwak shall, upon
request, provide any and all financial information the Bank may so request from time to time,
including, but not limited to, a copy of his most recently filed federal income tax returns and current
fully-executed fmancial statements.
8. Events of Default. The occurrence of anyone or more of the following is an Event of
Default hereunder:
a) Mr. Kwak fails to observe or perform each and every provision of this Agreernent, the
Note, and any other loan documentation relative to the obligations of the Kwaks,
including, but not lirnited to, the failure to rnake the payments as provided herein;
b) Mr. Kwak files a petition under any provision of federal or state bankruptcy,
insolvency, moratorium or similar law, or such petition is filed against him;
646216.3
5
,_.._-_._-~---,._--------
c) Mr. K wak misrepresents any warranty or representation given hereunder or
misrepresents any material fact hereunder.
9. Forbearance by Bank. In consideration of this Agreement, the Bank hereby agrees
that during the term of forbearance it shall take no action to collect its collateral or to enforce the
within obligations or the underlying obligations so as to provide Mr. Kwak with an opportunity to
resolve his financial difficulties as set forth herein. Said forbearance is conditioned upon Mr. Kwak's
complying with this Agreement.
10. Binding Effect. This Agreement shall be binding upon the parties hereto, their
executors, administrators, heirs, successors and assigns. Mr. Kwak shall not have the right to assign
his rights hereunder without prior written consent of the Bank.
11. Inspections and Appraisals. Mr. K wak hereby grants to the Bank the right at any time
and from time to time to conduct inspections and/or appraisals of any or all of its collateral, including
the Mortgaged Property, the Say-Ford Collateral and the Young's Food Market Collateral.
12. Goveming Law and Venue. This Agreement shall be governed, construed and
enforced in accordance with the laws of the Commonwealth of Pennsylvania. Any and all disputes
hereunder shall be commenced and resolved in any of the courts of common pleas of Pennsylvania.
13. No Waiver or Novation. Nothing herein contained and no actions taken by the Bank
herein or in connection herewith shall constitute or be deemed to be a waiver or release of any default
by Mr. Kwak of his obligations, or ofthe security interests, rights, remedies or privileges afforded to
the Bank thereunder. Nothing herein shall constitute a waiver by the Bank of Mr. Kwak's
non-cornpliance with the terms of his obligations, nor shall anything contained herein constitute an
646216.3
6
agreement by the Bank to enter into any further agreernents with Mr. Kwak. Neither this Agreement
nor any other documents to be executed in connection herewith is in any way intended to constitute a
novation of or a waiver of any of the underlying obligations. The Note and any and all other
agreements in writing between Mr. Kwak and the Bank shall remain in full force and effect. In the
event of any inconsistency between the terms of this Agreement and the terms of the Loan
Documents, the terms of this Agreement shall prevail. All other terms, conditions and covenants set
forth in the Loan Documents, except as expressly modified herein, remain unchanged and in full force
and effect.
14. Extension. Nothing herein shall be construed as a representation or warranty by the
Bank that the forbearance term granted herein shall be extended or renewed and the parties hereto
confirm and acknowledge that no further extensions or renewals have been promised.
15. Time. Time is of the essence of each provision of this Agreernent.
16. Construction. The parties acknowledge that each party and each party's connsel have
reviewed and revised this Agreernent and that the normal rule of construction to the effect that any
ambiguities are to be resolved against the drafting party will not be employed in the interpretation of
this Agreement or any amendments or schedules hereto.
17. Release. Mr. Kwak hereby waives and releases the Bank, its officers, employees,
agents, representatives, attorneys and directors and their executors, administrators, heirs, successors
and assigns from any and all claims, causes of action, set-offs, recoupments, actions, debts, damages,
liabilities and expenses which they may have against the Bank in connection with the Note, any
646216.3
7
action or inaction of the Bank or in any way related to the Loan Documents and/or the negotiation of
this Agreement.
18. Voluntary Agreement. Mr. Kwak represents and warrants to the Bank that (i) he is
represented by legal counsel of his choice in regard to the transaction provided for in this Agreement
and that such counsel has explained to him the significance of the terms, and the full meaning and
effect of this Agreement; (ii) he is fully aware and clearly understand all of the tenns and provisions
contained in this Agreernent; (iii) he has voluntarily, with full knowledge and without coercion or
distress of any kind, entered into this Agreement and the documents executed in connection with this
Agreement; (iv) he is not relying on any representations either written or oral, express or implied,
made to them by the Bank other than as set forth in this Agreement; and (v) the consideration
received by Mr. K wak to enter into this Agreement and the arrangement contemplated by this
Agreement is fair, reasonable, equitable, actual and adequate.
19. Modification. This Agreement may not be modified except by a writing executed by
the parties hereto with the same formality as this Agreement.
20. Gender and Number. Unless otherwise specified, the masculine shall include the
feminine and the neuter and vice versa. The singular shall inc1udethe~p1ural and vice versa.
21. Additional Instruments. Each party shall, at the request of the other party, execute,
acknowledge and deliver whatever additional instruments may be required in order to accomplish the
intent of this Agreement.
22. Invalidity. In the event anyone or more of the provisions contained in this
Agreement shall for any reason be held to be invalid, illegal or unenforceable in any respect, such
646216.3
8
invalidity, illegality or unenforceability shall not affect any ofthe provisions of this Agreement, and
this Agreement shall be construed as if such invalid, illegal or unenforceable provisions had never
been contained herein.
23. Counterparts. This Agreement may be executed in identical counterparts which
together shall constitute a single agreement.
24. Complete Agreement. This is the complete agreeme\j.t and there is no written or oral
understanding or agreement directly or indirectly connected with this Agreement that is not
specifically incorporated herein by reference.
25. Waiver of Jury Trial. Mr. Kwak and the Bank irrevocably, as an independent
covenant, waive jury trial and the rights thereto in any action or proceeding between Mr. KWak
and the Bank.
IN WITNESS WHEREOF, Mr. Kwak and the Bank, intending to be legally bound hereby,
have executed this Agreement the day and year first above written.
WITNESS:
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ATTEST:
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MELLON BANK, N.A., now by assignment,
CITIZENS B OF PENNSYLVANIA
/
BY:
646216.3
9
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.
COMMONWEALTH OF PENNSYLVANIA
SS:
COUNTY OF LUZERNE
.,~
ON THIS, the k- day of
ILJ r1e I I
,2005, before me, the undersigned officer,
personally appeared Joseph E. Sweeney, who acknowledged hirnselfto be Assistant Vice President of
Citizens Bank of Pennsylvania, and that he, being authorized to do so, executed the foregoing
instrument for the purposes herein contained by signing the narne of Citizens Bank of Pennsylvania,
by himself, as Assistant Vice President.
IN WITNESS WHEREOF, I have hereunto set my hand and notarial seal.
COMMONWEALTH OF PENNSYLVANIA
Nolanal Seal
Jane A Muscavage, Notary Public
CiIy Of Wilkes-Barre. Luzeme COunty
My Commission Expires Nov. 3, 2007
Member. Pennsylvama Assoclahon Of Notaries
~A)~~~
N~ Y LIC .
COMMONWEALTH OF PENNSYLV ANlA
COUNTY OF
ss:
ON THIS, the ~ day of -.flpr I \
, 2005, before me, the undersigned officer,
personally appeared Sang Ho Kwak, known to be (or satisfactorily proven) to be the person whose
name is subscribed to the within instrument, and acknowledged that he executed the same for the
purpose therein contained.
iN W 1TNESS WHEREOF, 1 have hereunto set my hand and notarial seal.
~'
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NOTARY PUBLI .
6462] 6.3
COMMONWEALTH OF PENNSYLVANIA
Notarial Seal
Rhonda Heffelfinger. NolaJy Public
CiIy Of Harrisburg, Dauphin County
My Commission Expires Apr. 22, 2008
Member, Pennsylvania Assoclatlon Of Notaries
SCHEDULE A
Savford Market Secured Equipment
Sharp ER-A330 Cash Register
TEL SL 9000
Casio PCRT 2000 Cash Register
Mega Refrigerator Unit
Panasonic KX-FP121 Fax Machine
Pre Fab 10 x 12 Walk In Cooler
Bunn Coffee Maker VPS Series
Hobart Meat Tenderizer
Power Cooler 2 Door
Bird Meat Cutter
Beverage Air Deli Cooler
Heat Sealer 20 Inch
True Deli Bar Refrigerator
Berkel Meat Slicer 3340
Hussman Meat Cooler Displays (3)
Berkel Meat Slicer 919/1
Tafco Pre Fab Walk In Cooler 12 Door
Eastern Mfg. Checkout Computer
System
(1) Master Computer
(2) Check Out Stations
Tafco Pre Fab Walk In Freezer 12 Door
Whirlpool Range
Younq's Market (Newville, PAl Secured Equipment
Powers Sliding Cooler with butcher top cover, Ser. No. B947-556
Migdi Deli Case with Bottom Refrigerator, Ser. No. 894004
21/2 x 3' Tappan Chest Freezer
Sturdi-Bilt up Draft and Exhaust Fan
30" Comstock-Castle Stove, Ser. No. 7MM420
Castle Pizza 2-Shelf Oven, Ser. No. 6MM128
Westy Cash Register Sanyo, Ser. No. 63404445
Slicer Model 919-1, Ser. No. 9365-1151-09830
- /~
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----- i // SAN6HO KW~~' ,/ L/
Sworn to and subscribed before me
this l + h day of --.fLp r i \
,2005.
COMMONWEALTH OF PENNSYLVANIA
Notarial Seal
Rhonda Heffel1inger. Notary Public
City Of Hanisburg, Dauphin CoIlnty
My Commission Expires Apr. 22, 2008
Member, PennsylvanIa Association Ot Notaries
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VERIFICATION
1, 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. 1 hereby verify that the factual
averments contained in the foregoing complaint are true upon my personal knowledge or information
and belief. 1 understand that this verification is made subject to the penalties of 18 Pa.C.S.A. S 4904
relating to unsworn falsification to authorities.
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j RECEIVED AUG 302005
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.
CIVIL ACTION -- LAW
REPLEVIN
SANG HO KW AK, Individually and d/b/a
Young's Food Market, and YON HW A KW AK
1307 N. 3,d Street
Harrisburg, PA 17102,
Defendants
NO.
BRIEF IN SUPPORT OF PLAINTIFF'S MOTION
FOR WRIT OF SEIZURE
The plaintiff, Mellon Bank, N.A., now by assignment, Citizens Bank of Pennsylvania (the
"Bank"), by and through its counsel, Hourigan, Kluger & Quinn, P.e., 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 follows:
I. HISTORY OF THE CASE
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, Luzeme County, PA
18711. Mr. K wak is an adult individual having a last known address of 2208 Chatham Way, Harrisburg,
P A 17110. Upon information and belief, Yon Hwa K wak is deceased.
677413_1
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.) 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
"Young's Collateral"), as evidenced by a security agreement (the "Security Agreement") and as
protected by certain UCC-I financial statements (the "UCC-l Financial Statements"). (A true and
correct copy ofthe Security Agreement and the UCC-I Financial Statements is attached hereto as
Exhibit "B" and incorporated herein by reference.)
Mr. Kwak defaulted under the terms of the Note by failing to make monthly payments of
principal and interest due under the Note.
As a result ofMr. Kwak's default under the terms ofthe Note, the Bak and Mr. Kwak entered
into a forbearance agreement dated April 12, 2005 (the "Forbearance Agreement"), upon the terms and
conditions more particularly set forth therein. (A true and correct copy of the Forbearance Agreement is
attached hereto as Exhibit "c" and incorporated herein by reference.) Mr. Kwak defaulted under the
terms of the Forbearance Agreement by failing to make payments of interest due under the Forbearance
Agreement.
The fair market value of the Young's 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.
677413.\
2
The balance of the Note as of August 8, 2005 was $296,891.95, consisting of principal in the
amount of$291,949.52, accrued interest in the amount of$4,706.61, late charges in the amount of
$235.42, exclusive of attorneys' fees and costs.
II. STATEMENT OF THE OUESTION INVOLVED
WHETHER THE BANK IS ENTITLED TO POSSESSION OF THE
COLLATERAL WHEN MR. KWAKHAS DEFAULTED UNDER THE
TERMS OF THE NOTE?
III. ARGUMENT
Pa.R.Civ.P. No. 1075.1 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
hearing, the plaintiff must file a motion for writ of seizure. See Pa.R.Civ.P. No. 1075.I(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.I(a).
Upon the filing of the motion for issuance of a writ of seizure, the court must fix the date and
time for a hearing on the motion. See Pa.R.Civ.P. No. 1075.I(a). A hearing on a motion for a writ of
seizure of the property in a replevin action must be held whether or not the defendant or other person
6774]).\
3
found in possession ofthe property appears. See Pa.R.Civ.P. No. 1075.I(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.I(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 {l 1075.I(e):1 (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 {l1075.I(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 possession of
the property. See 4 Goodrich Amram 2d {l1075.1(e):1 (1991).
The hearing is not for the purpose of making a final determination on the merits of the plaintiffs
claimed right to possession ofthe 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).
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 Maver v. Chelten Ave. Bldg. Cora.. 321 Pa. 193, 196,
183 A. 773, 774 (1936); General Motors Accet;ltance Cora. v. Burns. 25 D&C 2d 293, 296-300 (1961).
677413.1
4
Additionally, the form of the writ of seizure prescribed by the Pennsylvania Rules of Civil Procedure
specifically directs the sheriffto seize the subject property. See Pa.R.Civ.P. No. 1354. Furthermore, it
has been held that even a defendant who is properly in possession ofthe 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 the goods, provided that in so doing he does not
exceed the limits prescribed by the law. See Kneas v. Fitler. 2 Serg & R 263,264 (Pa. 1816); Maver. 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. Temole. 38 D&C 2d 120, 127 (1965). However, the sheriff may use no more force
than necessary and must exercise due care. See Maver. 321 Pa. at 196, 183 A. at 774. The burden is
upon the plaintiff in a replevin action to establish every material element of his case upon which an issue
is raised under his pleadings. Blossom Prods. Cora. v. National Underwear Co.. 325 Pa. 383, 387, 191
A.40, 42 (1937). The plaintiff must establish his right to possession ofthe subject property by a
preponderance of the evidence. See Petition of Allstate Ins. Co.. 289 Pa. Super. 329, 333,433 A.2d 91,
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).
677413.1
5
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. GoddinlJ:. 155 Pa. Super. 490,492, 38 A.2d 720, 721 (1944); Johnson v. Staoles. 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 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
(570) 287-3000 Telephone
(570) 287-8005 Facsimile
Dated: .It!")" I" ,2005
677413.1
6
$ 395,000.00
Promiso To Par.. HH{ VALliE In:cnvEll,and intending 10 he kf',;ll1y
l)(Jll\l(l, Un(krslgncd, :1'; defined helow, pn)misc.s 10 pay 10:
1'11' lLon_ll.i2Tll-;_~_ Jt~J,---,----_,
("B:lllk") or ib order at
Ha~~r isburg ( PennB~ania
lhcsumof '---- ---------
Three Hundred Ninet~y Five Thousand and
00(100 .
Dollars ($ 39 S , 000.00 ), :with interest on the
outstanding balance from the date of: this Promissory Note
CNotc") at thc ratc(s) ("Contractual Ratqs)") and in aC<<lrdance
with the repayment schedule specified belqw.
Contractual Rate(s); Repaymont $cJlOdules_ :
o Interest at a rate pee annum;which is %
above Banle's Prime Rate, such rate to ch;inge from time to time
as of the effective date of each announcea change in such Prime
Rate, sball ~ .paid when principal I"'l""ionts are due. Principal
sball be paId m consecutive f1lOnthly installments of
$ each, commencing lm ,
and continuing thereafter on the ; day of each month
with the balance of the indebtedness, if n\>! sooner paid, due and
payable on :
o Interest at a rate per annuoi which is _ %
above th,,: CD Rate, such rate to ch;inge /rom time to time as of
the effective date of each change in DC re$elting of the CD Rate
s~ll ~ paid when principal payments ar~ due. Principal shall .,,;
paid ill consecutive m<jnlbly 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,. due and payable on
I .
I
;
o The principal balance he.;,o~ together with all
accrued and unpaid interest, shall be. paid on
and interest at a rate per annum whic6- is % abov~
Bank's Prime Rate, such rate to change (rom 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 oommencing on
. ,
- i
I
o The principal balance ht' ~ together with all
_accrued and unpaid interest, sball 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 rcscUi'i.? of the CD Rate, shalt
be paid on the day of each rooth oommencing on
I
o In no event shall the rate charged ion this Note exceed
. % per annum_ I
I
o The principal balance htf, together with all
accrued and, unpaid interest, shall be pai, on
and interest at the ratc 0[% annum shan be paid
on the . day of each mtnUl oommendng on
IX! ....> A'" ~ftccest shall be calcu.lted at' the rate of
A . ~o % 'per annum. Principal and ~tcccst shall be paid in
1.,-<) consecutive month. iostaUmeats of
$ 1.'1'3 h~ each,oo .
. <i.
co
w
~
~ /t'
.:.
~
<:
.!,. fAr 1/
!}2jOl~19~~, :1f1d continuing Ihcrcaflcr on the 1ST
(by of C;:lch month wilh the halance of the inclchlcdnc~<; if~")l
~"'X).ncl j);\id, oue ;lOcI p:lyahlc 011 ---.!?Y01/2014. _ During :my
[K/lOO th;]! the ~.:on(ractual Ratc(s) i<; reduced by 0_25% rc-r
aOllum, ,IS dC~Tlbcd elsewhere in this No/c, installmenls of
principal and intercst shall instead be in the amount of
$ 3,864.10 each. If Ihe reduction in the Contractual
ILlle(s) is no longer in dfed, the amount of instl1l1mcnts of
rril1eipa! and interest shall return to and be the same as the amount
of SUdl installments prior to the reduction in the Contractual
Ratc(s).
Undersigned shall pay Bank concurrently with the execution and
deli~ery' hereof, Or V ndersigned pceviously has paid Banle, an
ongmation fee of $ 3,950.00 , 10 compensate Banle
for il5 underwriting, origination and administration of tl:te loan
evidenced by this Note. This fee shaI1 be deemed fully earned by
Banle on the date hereo~ shall not be refunded, and is in addition
to any other fees, costs or ~ which may be due and payable
hereunder.
,
Vnless UndersIgned has authorized Banle to lalee payments out of
a Mellon O1ee1cing Account, as set forth below, Underngned will
mall or. deltver .to Ba'.'1e the amount billed by Banle each month.
UndefSlgned wIll mall or deliver the payments so that Bank
receives all payments no later than the due date shawn on each bilL
o Undersigned authorizes Banle to lalee all
payments of principal and/or interest and/Or other amounts due
under this Note out of Underngned's MeUon O1ee1cing Account
Number . . titled in the name(s) of
. on or
after .the . ct:'y of each mOlith. Undersigned willleeep a
sufficient balance ill this account to covec the full amounts of all
required payments. At. its option, Banle may terminate
Undersigned's ability to use Ibis service. This authorization shall
remaIn in effect until revolced by Underngned in writing or until
the loan evidenced by this Note is paid in full or until Banle has
termi~ted Undersi~ned's ability 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 cover -the full amounts of aU required payments, the
OJlllractual Rate(s) shall be reduced by 0:25% per annum. This
authorization will be effective even though this Note and the
account may be titted in different versions of Undersigned's name.
If the -original principal amount of this Note is in excess of
$10,000.00, or _i~ U~dersigooo is a -corporation, ipterest shall be
calculated on ~he. basis of a 360-day year and actual days elapsed. If
the oogmal pnOClpal amount ot this Note is S 10,000.00, or less} and
Undersigned. is not a corporation. interest shan be calculated on the
basis of a 365-da.y year or 366-day year, as the case may be, and
actual days elapsed.
"Prime Rate" shall mean the interest ratc per annum announced
from time to lime by Bank as its Prime Rate. The Prime Rate may
be greater or less than other interest rates charged by Bank to
other borrowers and is not solely based or dependent upon the
intercst rate which Bank may charge any particu\ar borrower or
class of borrowers. .
If a single certificate of deposit is held by Banle as collateral security
for the indebtedness evidenced by this Note, as. more fully
dcsa:tbed in the Assignment of D<;posit Account expressly referring
to Uus Note, ~D Rate" shalllI1eaQ lI1e intccest rate paid by Banle
on suct, ccrtifiqle of deposit (the ~ifi":!te')' S3id CD Rate to be
'c".' '. PagelofS.
Additional Tams and Conditions
L Cowtl8t1h. Undersigned <menants 3l1d agrees that until all
indcbtcdOC'SS evidenced hereby Ita,,; been paid in full, Undersigned
sh.dl: (a) maintain at all limes 3 fXl<iilivc tangible nct \I.,'ofth; (b) (I)
have all Environmental Permits nc(",c:;;.s.ary for the conduct of each
01 Ul\\.kr$lgllco's husinc:-;..",c:'i and opcfali<llJ\, (2) conduc! ClC!l 01
Undersigned's businesses and operalions in material compliance
with aU applicable l'nvlnmmcntal 1..3\\':'; and Environmental
Permits, (3) not permit to exist any event or condition that requIres
or is. (ikely to require Undersigned under any Environmental Law
to pay or expend funds by way of finc.<;, judgments, damages,
clc-anup, rcmcd.i.ation or the Iilc in an aggregate amounl, lhe
payment of wbicb could reasonably be expected to interfere
substantially with normal opcrations of Undersigned or materially
advcrscly affect the financial condition of Undersigned, (4) notuy
Ilanl: prompdy upon becoming aware of any pending or threatened
proceeding, suit, invcstigatioo, anegation or inquiry regarding 3l1Y
alleged aocot or condition that, if resolved unfavorably to
Undersigned Or any of Undersigned's subsidiaries or affiliates. is
likely 10 cause Undersigned or any of its subsidiaries Or affiliates
under any Environmental I..aw 10 pay or expend funds by way of
tines, jud8IDcn(S, damages. cleaning. remediation or the like. and
(5) provide at Undersigned's cost, upon request by Bank,
rectifications, documentatioo, copies of pleadings and other
infonnation regarding the above, aU in fonn and content
satisfactory to Bant:; (e) conduct each of Undersigned's busin=
and operations in material compliance with an federal, state Or local
laws, statut~ regulati~ 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 evideuoo:l hereby only for business purpose(s) specified to
Bank at or prior to the CJ<ecution hereof; (e) promptly notify Bank
in writing of any change in Undersigned's residence or Chief
&ecutive Office; (f) purchase and maintain policies of insurance
(mcluding Oood insurance) to protect against such cislcs and
=ualtics, and in .such amounts, as sIi.al1 be. required by Bank
3l1d/or applicable law, which policies sbaIl (1) be in fonn 3l1d
substance satisfuctory to Banle, (2) at Banlc's option, designate
Bank as loss payee and/or as additional insured. and/Or contain a
lender's loss payable endorsement, 3l1d (3) be (or certificates
evidencing same shall be) deposited with Bank; (g) (1) maintain
and keep proper records and boolcs of aaxJUnt in conformance with
generally accepted accounting principles applied on a consistent
basis in which full, true and correct entries shall be made of an
Undersigned's dealings and business affairs, (2) provide to Bank at
Undersigned"s. cost. upon Bank"s request. financial or other
informatioo. documentation or certifications (including without
timilation annual and periodic balance sheets and income
statements. pcrsooal financial statements, federal income tax
returns, irM:rttory reports (including a description of raw materials,
finished goods, and the aging thereof, as applicable), and accounts
receivable and payable aging reports), all in fonn and content
satisfactory to Banle, and (3) pennit, upon requcst by Banle, any of
the offioca. employees or reprcscnLativ'cs of Dank to visit and
inspect any of Undersigned's properties and locations and to
examine its books and records and discuss the affairs, fmances and
accounts of Undersigned with representatives lheccof, as often as
Dank: may request; (h) provide additional collateral at such times
aod having such value as Bank may requcst, if Dank shall have
reasonable V"ounds for believing that the value of the collateral
securing Ihe indebtedness evidenced by this Note has become
insufficieut to oecurc said Indebtedness; (i) pay, upon demand by
Dank, (1) all costs and fees pertaining to the filing o[ any financing,
rontinuatioo Of termination statemenlS, mortgages, satisfaction
pieces, judt;mcots and any other type o[ document which Bank
deems noa:ssary or desirable to be filed with regard to =rity
inlercsts Wich =re the' indebtedness evidenced hereby,
regarolcss, of whether such s<:qi'rity intercsts were granted by
Undersign(x!, and (2) an costs ana~ incurred by Bank in
Page 20f5
--.
. ./
reset by Bank at each renewal of the Ccrillicate. If more than one
certifica'e of deposit is held by Bank as collateral security [or the
indeblcdncss evidenced by this Notc, as mDre fully descrihcd in the
A<>.<;ignnlcnl(s) of Deposit AC0JUJ1( cxpres..<;ly referring lO this Not..:,
"CD H.ateH shalllllC<:lll the higlJe:-;t of the inter,,-':,;l r;lles p:lid by lbnK
011 suetl ccniflc;llcs of {kp<.1~jl (llK "Ccrlifl,-:JIl'S"), s:lid CD lLuc It I
be reset at each renewal of each CcniflaHc
Lala CIJ<J.rgo. If any p:lyment (including Without limitation allY
regularly scheduled payment, balloon payment or final payment) is
not paid within 15 calendar days after it is due, Undersigned v.ill ray
a late charge of the greater of $25.00, or three percenl (3C;-;_-) of the
unpaid portion of the schcdulccl payment due (regardless of whether
the payment due consislS of principal and interest, principal only or
interest only). Such late charge shall be in addition to any increase
made to the Contractual Ratc{s) applicable to the outstanding
balance hereof as a result of maturity of this Note or otherv.'isc, as
well as in addition to any other applicable fees, charges and costs.
Default Rale{s); Post-Maturity Rate(s). Upon the occurrence of
any Event of Default (as defined in this Note), a( Bank's option,
interest shall accrue at a rate equal to two percent (2%) per annum
above the Contractual Rate(s) until tho earlier of the date that such
Event of Default bas been cured or until and including the date o[
maturity hereof.
Me{ 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 surns 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 Of, at
Bank's option, upon the occurrence of any Event of Default, interest
shan accrue at a rate cqualto two percent (2%) per aunum above
the Contractual Rate(s).
Books end Records; Time of Essence. So long as Bank is the
holder hereof, B3l1lc's boolcs and records shan 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 fuithful performance of all of Undersigned's
obligations hereunder I including without limitation time of payment,
is of the essence of this Note.
Security Interest. SetoH 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 aU 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 Dank: for taxes, levies. insurancc,
filing fees, and repairs LO or mainlenance of said coftatcral),
Undecsigned hereby grants to Dank: a security interest in, lien upon,
and right of setoff against, aU deposit accounts. credits. securities.
moneys. or other property of Undersigned which may a( any time be
in the possession of, delivered to, or owed by Dank, induding any
procec:ds or returned or unearned premiums of insurance, and the
prQC;('.(;(ls of aU t.he foregoing property. Other property. rcat or
personal, may secure this Note. as set forth in other documents and
8greernents~
Undersigned aclcnowJedgcs and agrees that Undersigned shan
renew, or cause to be renewed, the CertiflC3te(S), if 3ny, until the
indebtedaess evidenced by this Note has been paid in full.
Undccsigned further ;1grc.cs that Undersigned will cx<<ute, or will
cause to be executed, upon demand by Bank: any tirlandng
stalemeats oc othe.- documents, iadudiag, without limitation,
additional Assignments of Deposit Aooounl, which Dank may deem
necesSary or desirable to evidenoc, perfect or maintain perfection of
the seaJrity interests created in tbe Ccrtificate(s) and Bny renewals,
rqda<::c.mcnts and substitutions thereol
,.
,
~y
CDnnectio'n with any collateral securing this Note (induding withoul
limitation all advances made by Dank for taxes, levies" insurance,
repairs to or maintenance of said collateral, appraisal Of valuation
of ;<;;:lid collateral, and dctcflnin':llion of f100<J h.17........rd), rcgarolc:\..<; of
",..hc\!\cr such collateral is owned by Undersigned; ;Ind (j) P=IY, ufXm
dcrn:md by Ibnk, all amounts incurred hy Ibnk in connection with
allY ac~ion or pHKccding l;A.cn or COllll1lCllCcd hy Bank to enforce
or collect this Note, including attorney's fcc.<; equal to the lcS-<rCf of
(1) 20% of the outstanding princip.l\ D..l\ancc and interest tilen due
hereunder or $500.<XI, wllichever is greater, or (2) the maximum
amount permitted by law, plus attorney's costs and all costs of legal
rrcx:ecdings
2. Events of Dofault. The occorrence of any of the (ollowing 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 othcr evidence of liability of Undasigncd to
Dank; (b) the breach by any Obligor (defmed as Unda:signed and
each surety or guarantor of any of Undcrsigned'sli.abt.lities to Bank
as wen as any person or entity granting Bank a security interest in
property to secure any indebtedness) of auy covenant oontained in
this Note or in any separate S=rity, goarank<: or suretyship
agreement between Bank and any Obligor, the oo:urrence of any
default hereunder or under the terms of any such agreement, or
the discovery by Bank of any false or misleading cc:pr=ntation
made by any Obligor herein or in any such agreement or in any
other information submitted to Bank by any Obligor; (e) with
respect to any Obligor: (t) 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; (I) the filing or
commencement of any petition, action, case or proceeding,
voluntary or involuntary, under any state or federallaw regarding
bankruptcy, insolvency, reorganization, receivership or dissolution,
induding the Bankruptcy Reform Act of t918, as amended, by or
against any Obligor; (g) default under the terms of auy lease of or
mortgage on the premises where real or persooal property securing
the indebtedness evidenced by this Note is located; (b) 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
federat, state or local taxing authority of unpaid taxes, or the
issuance of a levy or the entering of a lien in conncctioo therewith;
(1:) 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 rcason of the death of the insured ()( otherwise; or
(n) default by Undersigned in the payment of any indebtedness of
Undersigned or in the pcrfonnancc of any of Undersigned's
obligations (other than indebtedness or obligations evidenced by
this Note oc any other evidence of liability of Undersigned to Dank)
and such default shall continue for more than any applicable grace
period.
3. Accoloration; Remodios. Upon the occurrence of any Event of
Default: (a) all amounts due undcr this Note, induding the unpaid
balance of principal and intercst hereof. shall become immediately
due and payable at the option of Bank, without any demand or
notice whatsoever; and (b) Dank: may immcdiatcly and without
demand exercise any of its rights and rClt100ies gr:adtcd herein,
under applicable law, or which it may otherwise have, against
Undersigned or OU1C<Wise. NotwiUlStanding any provision 10 the
oontnuy contained herein. u(XlO the occurrence of an Event of
Default as dcseribCdln Section 2{l) hCleo~ aU amounls due undCl
"
this Note, including w._.JU( 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 ::;11:111 imnlCdi:1tcly accrue.
4. Bank's Right:. UnderSigned herd))' Cluthorizc.<; B;ll1k, ;1nd Ibn~
s!J;11l have Ihe Q.)flluluing righI, .11 its.Yl1c oplion .;md lllxcClioll, 10: (;I)
do anything which Undersigned i<; required but fails to do, and in
particubr Bank may, ir Undcrsigned fails 10 do so, oht<lin and pay an)'
premiums p..l)'<lble on an)' policy of insurance required (0 be obtained
or maintained hereunder; (b) direct any insurer to make payment of
anr 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 pcrson(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 t(i), Section 1(j) or
Section 4{a) to the principal amount of the indebtedness evidenced
by this Note.
s.AJ1thorizatiQfl to Borrow. Undersigned hereby represents, 'Warrants,
certifies and covenants as follO\\lS:
(a) If Undersigned is a corporation, that the perron(s) signing helow
hold(s) the nffice(s) indicated below (and continue to hold such
office(s) until Bank bas received notice to the contra!}' in writing
from Undersigned), and that the Board of Direct= of Undersigned
has adopted resolutions providing that: (1) the persoo(s) executing
and delivering Ihis Note on behalf of Undersigned islare authorized
(i) to incur indebtedness and obligations on bebalf of Undersigned by
borrowing or making other financial arrangements with Bank from
time to time, upon terms and conditions as they in their sole
disa'etion deem desirable, Cd> to make, execute and deliver
promissory nOles, 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 (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 hcretofore 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. COnflClIled and
approved; and (3) said resolutions shall have the force of a continuing
agreement with Dank, and shall be binding upon Undersigned until a
resolution amending theal sball have been duly and legally adopted
and Bank furnished a certified copy thereof.
(b) If Undersigned is a paitnership, that (1) Undersigned's name
shown bclOYl 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 ma1cing othcr financing or credit accommodations with Dank
from timc 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 ~gn an<t p!cdgc as collateral security for any such indebtedness
or obliga.tionS: :ii.6w or hercaflcr 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 assigniug or pledging any o[
Undersigned's property for the payment thCleof, or in doing any
othec act il\ connection thClewith are hereby rati(jed, conlirmed, and
approved; (41notwithstanding any~ooification or tenninadoo of the
Pagc30f5
.y.
-
power of any of the partners to represent said firm, whether by
expiration of the partnership agreement. by death or retirement
of ~ny partner, or the accc..<;sion of onc or morC new p..1rtncrs, or
olhcfV.'isc, and nO(Wilhslanding any othcr notice Hlcrc.of Bank
Ill:l)' receive, this authority shall continue 10 be tJilJ(hng u/xJr1 each
of (he llndcrsigncd illdivldu;llly ;lJJd Ul'k.Hl their k)~;\l
rcprcscnt<Hives, and ufXm Undc0iigncd .llJd its successors, unti!
Bank has received notice in wrilinlj to the contrary sir,ncd by one
of tile Undersigned or by lJndcrsll,;l1cd\ duly authorized :lgL/ll
(Rcccip( of such notice will nol relieve any r;lrtncr of any liability
arising from obligations incurred prior 10 Ibnk's rcccipl of such
lhllicc_), ;llld (5) not/1ing hereill Sll;llJ be conslruuj 10 IUllit IIIC
rigl)ts grantcd to a partncr by law or by lhe parlocrship
agrccmcol, but all righlS granted herein shall be in addilion to
such rights.
6. Definitions; Miscellaneous Prowsiot1s. (3) Undersigned waives
(except where requesle<! hereby) notice of action taken by Banle;
and hereby ratifies and conflI1I1S whalevcr Bank may do. Bank
shall be entillcd to exercise any right notwithstandiog 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 indehte<!ness evidenced hereby. Undersigne<! warrant.< that
Undersigned has no defense whatsoever to any action or
proceeding that may be bcougb.t to enforce or realize on any such
judgmenL (e) If any provision hereof shall for any rC3S0n be held
invalid or unenforceable, no other provision shan be affected
thereby, and this Note shall be construe<! as if the invalid or
unenforceable provision bad never been a part of it. The
descriptive beadings of this Note are for convenience only and
shad not in any way affect the meaoing. or conslruction of any
provision hereof. (d) The rights and privileges of Bank eontaine<!
in this Note shaD inure to the benefit of its successors and assigns,
and the duties of Undersigne<! shall hind all heirs, personal
representatives, su=sors and assigns. (e) This Note shall in all
respects be governe<! by the lam of the state in which this Note is
payable (except to the extent that fe<!eral law governs). (f)
Undersigne<! hereby irrevocably appoints Bank and each holder
hereof as Undersigned's altomey-in-fact to endorse
Undersigne<!'s name to any draft or cheelc 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 polities
of insurance required to be maintained hereunder. Undersigned
hereby aelcnowle<!ges that this appointment of Bank: and each
holder hereof as attorney-in-fact is irrevocable and is coupled
with an interest. (g) Undersigne<! assigns to Bank all moneys
which may become payable on any policy of insurance require<! to
be maintained under this Note, including any returned or
unearned premiums. (h) "Environmental Law" means any
_ federal. state or 1<.X81 environmental law. statule, regulation. cule.
ordinancc. court or administrative order or decree, or private
agreement or interpretation, now or hereafter in existence,
"rdating to the manufacture, dislribution, labeling, USC, handling,
collection, storage, treatment, disposal or Qlhcrwisc of Hazardous
Substano:s, or in any way rdating to pollution or protection of
the environment or public health. (i) "Environmental PermiC'
means any federal, state or local permit. license or authorization
issued under or in connCdion with any Environmental Law. 0)
"Hazardous Substances" means pdroIc:om and petroleum
produce;, radioactive matCliaJs" """""" radon, lead
containing materials, sewage Of any materials or substance:,;
defined as or induded in (he definition of ~rdous wasles "
"ha:r...ardous subSl<lIH.TS," "ha7.<1rdous materials ;, ~1O;{C
. , .
sub~k\nCLS,~ "h~lf.,aruou:; air Ix)lIul;mls,'" "(oxic po!lul~lJll:-;,"
"pollution," Of terms of similar meaning, as those terms arc
used in an)' Environmental L;.lw. (k) "OIicf Executive Office"
means thc place from which the main part of tile business
operations of ::m entity is managed. (I) .Undersigned" refers
individually and collectively 10 aU malcers of this Note,
indudmg, in toc case uf ;;In)' partnership, aU general panncrs of
such partnership individually and ooUcctivdy. whether or nOl
such partners sign below. Undersigned _ each be jointly and
severally bound by the terms hereof; and, with respect to any
partnership =ting this Note, each ~ partner shaII he
bound ber~ both in such geoernl ~s individual and
partnership capacities.
7~ Direction to Pay Proceeds.Undeai.gned hereby authorizes and
directs Bank: to pay the proceeds of this Note by: . . .
VI crediting Acoount Number ()li)-l{, z.1 -1 iN</. 11 {y U 6 !
f'in the name of / /
511106110 ~OrJ 11WiJ- K'J!r'\.
inlheamountof$' . ,/ tV
. I I1m{j :fI' 52q 00 J;~lyiJt?1 mt!JO.
'[I]paying {/Iv w,' . 10/-'07'5-/ '2 &'IS-
1"- A..vI: ~of -"1ii5.,3 JJf<j.. 2fi II
Ihe amount ofS
~ying f)ttJrFICfiLx'1f;/191.letJ
theamountofS
8. Affidavit 0( Business Loan.(1l1is Affidavit is not applicable if
Undersigne<! is a corporntion.} Undersigned, being duly
authorized, depose(s) and say(s) under penalty of petjury that
Undersigned:
(a) WAre engage<! in business aslXl Owner(s), 0 General
Partner(s) ot (name and nature ofhusiness)
YOUNG'S FOOD MARKET AND .
SAY-FopD SUPERMARKET if. c,f--
FOOD MARKET
(h) Hereby make(s) application 10 Bank for a loan, the
proceeds ofwl1ich will he utilized for the purpose(s} of
REFINANCE M.ELLON DEBT, OTHER DEBT
CONSOLIDATION & EQUIPMENT & INVOICE
PURCHASE
(e) Exercisc(s) actual canlrol OVcr the managerial decisions of
the business.
(Remaindcr of page intcntionatty left blank)
,
.':v.\/.
Page40f5
".y'
9. Confossion of Judgmenf. UNDERSIGNED HEREIlY
EMPOWERS TIm PROTIfONOTARY OR ANY
ATfORNEY OF ANY COURT OF RECORD TO APPEAR
FOR UNDERSIGNED AND TO CONFLSS JUDGMENT
AS OFITN AS NECESSARY Ai,A1NST UNDFRSIGNED
IN FAVOR OF Till' 1I0l.lJI]Z IIFIU'OF, IZF(;A!WI.I';"
01.' WIIEIIIUZ ANY EVENT OF DEFAULT liAS
OCCURRED, AT ANY 11ME AND AS OF ANY TERM,
FOR 11m OUTSTANDING PRINCIPAL lJALANCI'
IIEREOF PLUS IN-IBZEST DUE UNDER 111E TERMS
HEREOF AND ALL OUIER AMOUNTS DUE
HEREUNDER. TOGElHER won COSTS OF LEGAL
PROCEEDINGS AND AN ATroRNEY'S COMMISSION
EOUAL TO -IlIE LESSER OF (A) 20% OF '1'111'
OUTSTANiJlNG PRINCIPAL BALANCE AND
INTEIZEST TIII:N Dill' III'REUNDFR OIZ ,'()()IXl,
IVllIClIEVEIZ IS GREATER, OR (IJ) -IlIE MAXIMUM
AMOUNT PERMflTED BY lAW, WilE RELEASE OF
ALL ERRORS. UNDf?RSIGNED WAIVES ALL LAWS
EXEMPnNG REAL OR PERSONAL PROPE.RTY
FROM EXECUTION.
By signing this Note, Undersigned agrees to all temts of the Note and swears, under pcrtaUy of perjury (as set forth in
18 Pa.C.S. ~904, If governed by Penn~ylvanla law), to the Affidavit of nuslness Loan (If completed) set forth In
Section 8 of this Note.
Witness the due execution hereof under seal.
x
'Witness:
:"".~~
Mellon Baolc, NA
Mellon Bank (DE) National Associ;ttion
CL-<SO R",,~IOlM) LC, 9196 ill 9196
UDS P 166-64-3823 I d'SO (01)
OSlm,1605
I
x
,
's FOOD MARKET AND _
gPE-RMARK:BT 5:HY-A~.2J ~/Jr<"~~'1,..;>JIr..c/
672 B ERVILLE ROAD }.,/ ,,//
NEWVILLE, PA 17241 ~ IK-
Individual:
x ~~ iJle{! V~~
l:U.N W AK . .~
672 LOSERVILLE ROAD
NEWVILLE, PA 17241
(Seal)
..:~t
Page 5 of5
.>'
_7v....
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(S 395,000.00 ) made by
Mellon Bank. N.A.
~Bank"~to
~7~~~ ;:;V~r':D
SAY- . SU;ERMARKET V
("Borrower(s)"), said obligation evidenced by a
PROMISSbRY NOTE
_ ~-- ?l? - "1'1
intending to be legally
dated
Undersigned,
follows:
, (tbe 'Note')
bound, bereby agrees as
L Security Interest Undersigned hereby grants to Bank a securily
interest in the following property now owned or bereafter acquired
by Undersigned:
(Certain terms used herein are defined in Section 13 below.)
IX! ~ t. k;.) all equipment, wherever located, including
ma In ry, m tor vehicles, furniture and fixtures;
IX! ~ 'i~1I inventory (whether held for sale or lease or to
be nis 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! ~Y~II accounts, contract rights, general intangibles,
chatt I r. chases in action, instruments, documents (including
all documents of title and warehouse receipts) and all rigbts to tbe
payment of money, however evidenced or arising;
o (d) all securities; all cash, stock or otber 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 aU subscription rights incident to such securities;
o (e) all farm products; and
o (I) all properly or rights described below under the
caption "Description of Collateral."
Description of Collateral (Give a sufficiently detailed description
to ide.otify each item).
!,
"
"
w
~
w
~
'"
.:.
~
A
In addition to tbe foregoing, Undersigned: (1) grants to Bank: a
security interest in all accessions, parts, accessories, attachments and
appurtenances in any way used with, attached or relaled 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 securily interest in all substitutions for, renewals
of. improvements, replacements and additions to. and the products
and proceeds (cash and non-<:asb) of all of the foregoing properly
and any insurance policies relating thereto; (3) grants to Bank a
securily interest in, lien upon, and right of setoff against, all deposit
accounts, credits, securities, moneys or other properly 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 payahle on any policy of insurance required to be maintained
under this Agreement, including any returned or unearned
premiums.
All such properly subject to Bank's securily interests described in this
Section 1 is referred to herein collectively as tbe "CollateraJ." With
respect to Section 4 hereunder, tbe term 'Collateral" shall not include
tbe properly described in Subsection (3) oftbis Section L
All securily interests in Collateral shall be deemed to arise and be
perfected under and governed by the Uniform Commercial Olde,
except to the extent tbat sucb law does not apply to certain types of
transactions or Collateral, in wbich case applicable law shall govern_
2. Obligations Secured_ The Collateral shall secure tbe following
obligations f'~bligation(s)'): (a) all amounts at any time owing or
payable under tbe Note, and any other indebtedness, liabilily or
obligation of Borrower(s} or of Undersigned to Bank, now existing or
Page 10f4
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 Codc.
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
shan 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: (I)
represents an amount actually owing to Undersigned by the
account debtor (less dis<:ounts allowed for prOlllpt payment); (2) is
valid and enforceable according 10 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 witb. Bank; and (4) is not evidenced by
any judgment unless such judgment has been assigned of record to
Bank; 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 sewred by this Agreement have been
paid in full Undersigned shall: (a) immediately notify Bank in
writing in tbe event that any of the following occurs: (I) 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 reasoD of physical deterioratioD, techDicat
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 OJIlateral at such
times and in such form and detail as Bank may request, including
without limitation: (1) copies of invoices or other evidence of
UDdersigDed's accounts and schedules showing the aging,
identification, reconciliation, and collection thereof; (2) evidence of
shipment and receipt of goods aDd 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 foregoiDg to be certified by authorized officers or
other employees of Undersigned; (c) Dot change any location listed
below regarding places of business, inventory and records of
accounts without Bank's prior writteD consent; (d) at
Undersigned's expense, diligently collect the accounts on behalf of
Bank until sucb time as Bank exercises its right to directly collect
the accounts, and upon notice from BaDk, deliver all proceeds of
accounts to Bank forthwith upon receipt, iD the original fonn in
which received; (e) immediately upon Bank's request, open a cash
collateral account ("Cash CoIlateral account") at Bank and deposit
therein all cash proceeds of coIlections on the accounts; (f)
immediately upon Bank's request, give the BaDk assignments, iD
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 probibited 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 shaIl have the continuing rights at any time, whether
or not any default has occurred under this Agreement, and at its sole
option and discretioD, without Dotice, to: (a) take over and collect any
or all of tbe accounts and to take any otber actioD pur.;uant to its
power of attorney granted hereiD; (b) exercise absolute aDd exclusive
dominion and control over all funds deposited in the Cash CoIlateral
account; apply any funds therein against any Obligations; and charge
10 any deposit acrount of Underslgned any Item ot payment credited
to the Cash CoUaleral accouDt which is subsequently dishonored; ( c)
at any reasonable time, through its authorized agents aDd employees,
inspect. audit, and verify the accounts. and the inventory, review
Undersigned's books and records, and copy or make excerpts from
any documeDt; and (d) verify accounts with debtor.; in the name of
Undersigned, BaoIe, or Bank's designee.
11. MIScellaneous Provisions_ (a) Undersigned waives protest of alt
commercial paper at any lime held by Bank on which Undersigned is
iD any way liable, notice of nonpayment at maturity of any and alt
accounts, aDd (excepl where requested hereby) notice of action taken
by Bank; aDd hereby ratifies and confirms whatever Bank may do.
The rights aDd remedies of Bank hereunder are cumulative. Bank
shalt be entitled to exercise any right Dotwithstanding any prior
exercise, fallure to exercise or delay in exercising aDY such right. (b) If
any provisiOD hereof shall for any reason be held invalid or
unenforceable, DO ather provision shall be affected thereby, and this
AgreemeDt shaI1 be construed as if the invalid or unenforceable
provision had never been a part of it. The descriptive headings of this
Agreement are for conveDience only and shalt not in any way affect
the meaning or construction of aDY provisioD hereof. (c) The rights
aDd privileges of Bank contained in this AgreemeDt shall inure to the
benefit of its successors and assigns, and the duties of Undersigned
shall bind aU 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 aDd signed by an officer of Banle. (e) This Agreement shall iD
all respects be governed by the laws of the state where the
Obligations are payable as reflected in the document(s) evideDcing
such Obligations (except to the extent that federal law governs), and
alt references to the Uniform Commercial Code shalt be deemed to
refer to the Uniform Commercial Code as enacted in such state. (f)
Undersigned hereby irrevocahly appoiDts Bank and each holder
hereof as Undersigned's attorney-in-fact to: (t) eDdorse
Undersigned's name to any draft or cheek which may be payable to
Undersigned in order to coltect the proceeds of any. insurance or aDY
retumed or unearned premiums in respect of any policies of
insurance required to be maintained bereunder; 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) Under.;igned shall bear the
risk of loss of, damage to, or destruction of the Collateral, and
Under.;igDed 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 prothpt and faithful
performance of all of Under.;igned'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 sta~em<;11t O1ay be filed as a financing statement.
t2. Additionn,l Power of Attorney. In addition to the powers of
attorney grailled to Bank by Undersigned elsewhere in this
Agreement, Under.;igned hereby appoints Bank and its officers,
Page 3 of 4
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00(-10-1004 06:31am
'I'ARTWS
. IhOtilr. mGlC (~1: ll:3111~ [irr{ J{ind:viduuJ) .and mal Un, ~(:.cll'=,:
. . '~'A( I SAl-I.1; HO
~n 3 COX yt, i... 'J "L
./JfJ..'\IILLE~ P^ 17241
DelIf.o.:- NUDC (lMt. name f11"1' if individUIlI) and r-lRilin& addn':!.s:
yaUIl"G'5 FOOO HARKEl
RD 3 BOl( 3t6- c..,~
~EUV[llE, PA 172'1
Dcbtur name (Lut o.aroe Cint If individ1l..l.1) a.ll.d mailing a.ddrru:
BoelU:le<l P-.rl1(Id-) ru.mq.) (Wt Gllnte fin;t iCindivi4ual) :m4
add~ bx &OCUtity Jn~( incot'mJ.dQo:
Mdt-co '1lN;,~ tl.fr,.
.~{MOO II.aOll:tng \.ouo Ccoter
~ Ketlon ~ Cent&r{ Rm~ 151-121Q
PittsburQ~. PA lS2Sa.O~Q1
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AAfa.oec(w) Qf ~cl Putt JUlme(.) (l.w mOle fi1'U.U: tndMdJ.Ul)
.00 addcet:l: (OCl<<Uct'( lat~ 1n!ormat(O(L
sp<dd'IYP-Gr~arad (dKdcffapp1ic.ablc):
a 'The ,<=< "P<:bl<x" and 'S<curol Pmy" -.. 'l=<"
~ "'Leuar..fQI~I)'.
o n" (ami: "Ochc:0I"" ud "$ccutedparty" D1~ "CoJuigno;.
-.ad 'CoaJ1~" tapcan.dy.
o DdMt.... "t.'n.a&mlUinz:; U\iUty.
Sl:CUREV P.ARTYSIC~TUlU'(S)
"I'IlJ. .w.cmco.t II; fUt,clwCtb.Grd;r the: 8ecnrc4P'lf1fia~ to
pedllCt. ~i' intaatln cotlll.l~ (chcck."pphailblc bc:k(<<))-
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0( lh~ Deb(OC'.
b..D as to wllich thc D1Illj: Iu\e t.ps.04.
eo a.lrc2dt IIUbJQCt to. KCtJrlty interet{ In fUl..th~r C41U1~ La.
J'amsyJvaw.ll _
o Vt'hca tho C4I1altcal ~ movC'll to thic oouoty.
o when tb(: Dcbwl'"'. tc<<'J.~ Q(' p"':ux orbLlGhlt8ll"'" 1n/)Y~
toUUl (XllInty.
d. a1cea4y Jl.\tJ]cct to a J<:Cdrll)' lntcccat fa &WQlh<< jurls..drcUOb -
o wh..en the COUalcOlI ~ aa.4ov,td to Pc:ttlll)'NarJ.s..
o wfacn Ihe Deb..",.. t~(!Oh \fa tn01'.M. ta Pt:nttq'I'VltnU.
e.OVJb.lcht. ~ orthaco11.a(o-dd~1;..!diab1lld::.9.
in ~ch a ~t:f lJll:~t wu. pa:vlowt)' perfected (alaQ d=erit.o<::
~ lI:L blDd9, Itpurdwodwith CUh p~ and not
adeq.UAtdr d~bo.1 on tLa ooa,hut (maIlCUlt:su.l<:ment).
S+cUI:'Cd P't'fl.1 S(p.allU".t(..)
(mquU<d ""'yl!""'<o>>" d=t.od."".,<),
MELlOW 2
S'TJUo(OAJlOPORM.f(:UU,(PAUCCl (Rn.3t.Ul
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lJu.lform ~n:iv1 Code Forni UCCl
{IL --:'II n,WORTANT-rk-a?::no..dlD."lU1.ldio~
LJi13J2 dlrt'rull'f~rore(,.,mpletin?
FIlhJC!\o. (s!.J\mjy,1 1')' lJ1il1x of{lCcl'l ; ~)'L~,: ~'ICW'~_:'~:~<t..rg~ ('t.ampcd ly fjlillt: (\[licc():
:':'. :CG' .,,',," i)i' DEEDS
:"".1';: :llAIIO COUNTY - PI>
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~FTeR r=:trmllG OK ACOlJIIlED...IIIIJCO. TO:1o.U. lKVEMTOR.T
(lNaJJDHIG kelURMED aa IEPOSSESS€P cocbS)'; Accouttrs. ~EIl
ACco:.JI{T$~ GEf.lEW.. lIrlt'AltG1BtES.. ~~TS;T.J:ltAnf1. PAPER~
UtST~NTS, NOTEs, DRAftS, lfTTERS:;QR ADvlces Of atOll,
RECEIVABlES, D1lIER 1HCUIn: WING To tlEQTC1l~ fiXTURES'.
FURNITlJItE AID e:a.rIPMm~ AlL ~~OOUcTS. AUl),CASH Afro
.o~-t'.$. PROC8'D$ (lllOl1J)lH. IHSURANOE.l'OllOIEO _
PRlJCWJ$) at: TlfE RmEGOttlC4 l1lO AU. 'ClJAR,(JlTtES. (:U.U(S~
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UCC FINANCING STATEMENT AMENDMENT
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getail report item #1 printed by: DOTTIE HOFFMAN on 2/22/01
,===============================~=============================================,
PENNSYLVANIA uee DETAIL REPORT
IJI\TI\ COVEIu\C;E TllfZO\lGl1
1"1-:11 IJ:" ?IJO]
SJ::I\!,UI Cm11'LET!-:I
J'Y.l1 "/7, 71\1\
OH:~01CJl\M (CST
--------------- --------
------------------------
----------------_.~--- - '" ------ .._----.-----"---._----.-----.__.._---_.~---"---------
-----------------------------.---.----------.---------------- --
Filing Location:
SECfZETARY OF STATE: OF PENNSYLVANIA
308 NORTH OfF'1CE f\UT!,fJING
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 II
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 EXPERIN
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 OBTAINE[) F[,OM THE PENNSYLVANIA DEPARTMENT OF
STATE.
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.
FORBEARANCE AGREEMENT
This forbearance agreement ("Agreement") is made this 1L day of At p. J I , 2005 by
and between Sang Ho Kwak, individually and d/b/a Say-Ford Supermarket a!k/a Sayford Supermarket
(hereinafter, Say-Ford Supermarket and Sayford Supermarket will be referred to as "Say-Ford
Supermarket") and d/b/a Young's Food Market ("Mr. Kwak") and Mellon Bank, N.A., now by
assignment, Citizens Bank of Pennsylvania (the "Bank").
. WITNESSE TH:
WHEREAS, on or about May 28,1999, the Bank made a loan to Mr. Kwak and Yon Hwa
Kwak ("Mrs. Kwak") (jointly, the "Kwaks'') in the amount of $395,000.00 (the "Loan");
WHEREAS, the Loan is evidenced by a note and security agreement dated May 28, 1999 (the
"Note");
WHEREAS, in order to induce partially the Bank to make the Loan, the K waks executed and
delivered to the Bank a mortgage (the "Mortgage") on their improved real estate situate in the
Township ofFrankford, Cumberland County, Pennsylvania, as more particularly described in
Cumberland County Mortgage Book 1552, pages431 et seq~ (the "Mortgaged Property");
WHEREAS, in order to induce partially the Bank to make the Loan, Mr. Kwak, individually
and d/b/a Say-Ford Supermarket granted the Bank a security interest in, among other things, his
equipment, machinery, motor vehicles, furniture, fixtures, inventory, accounts and contract rights
(collectively, the "Say-Ford Collateral"), as evidenced by a security agreement (the "Say-Ford
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Security Agreement") and as perfected by certain UCC-l financing statements (the "Say-Ford UCC-I
Financing Statements");
WHEREAS, in order to induce partially the Bank to make the Loan, Mr. Kwak, individually
and d/b/a Young's Food Market granted the Bank a security interest in, among other things, his
equipment, machinery, motor vehicles, furniture, fixtures, inventory, accounts and contract rights
(collectively, the "Young's Food Market Collateral''), as evidenced by a security agreement (the
"Young's Food Market Security Agreement") and as perfected by certain UCC-l financing
statements (the "Young's Food Market UCC-l Financing Statements");
WHEREAS, Mrs. Kwak is deceased;
WHEREAS, Mr. Kwak defaulted under the terms of the Note for failing to make payments of
principal and interest when due;
WHEREAS, as a result of Mr. Kwak's defaulting under the Note, on or about December 2,
2004, the Bank confessed judgment against Mr. K wale in the Court of Common Pleas of Cumberland
County at No. 04-6040 in the amount of$384,294.24,. plus interest and costs (the "Confessed
Judgment");
WHEREAS, Mr. Kwak has informed the Bank of his inability to pay the Note, in accordance
with its terms, and has requested the Bank to enter into this Agreement relative to this one obligation
of the K waks to the Bank;
WHEREAS, Mr. Kwak and the Bank wish to enter into this Agreement without the Bank's
waiving any of its rights and remedies under the subject indebtedness, but in an effort to permit Mr.
646216.3
2
-----_.~~...---
Kwak the opportunity to resolve his financial difficulties and to arrange for the repayment of his
obligations to the Bank under the Note;
WHEREAS, in consideration of said forbearance, the parties hereto wish to enter into this
Agreement outlining the terms ofthe forbearance.
NOW, THEREFORE, intending to be legally bound hereby, and in consideration of the
mutual terms and conditions hereinafter set forth, the receipt and adequacy of such consideration
being hereby acknowledged, the parties hereto mutually agree as follows:
1. Confirmation of Mr. Kwak's Indebtedness. Mr. Kwak hereby confirms and
acknowledges that he is justly and truly indebted to the Bank under the Note, without any setoff or
defenses thereto. There is due to the Bank under the Note as of March 23,2005 the amount of
$298,840.40, consisting of principal in the amount of$297,289.47 and interest in the amount of
$1,550.93, accruing at the approximate per diem rate of $70.19. It is expressly understood that the
foregoing statement of indebtedness does not include accrued interest from March 14, 2005,
attorneys' fees and costs, or other expenses which may be incurred by the Bank if the Bank [mds it
necessary to exercise its rights or remedies under the Loan Documents (as hereinafter defined). It is
further expressly understood that the aforesaid amounts shall be included in the indebtedness due to
the Bank from Mr. Kwak.
2. Confirmation of Loan Documents. Mr. Kwak hereby acknowledges and agrees that
the information contained in the above-referenced recitals is true, accurate and complete, and further
ratifies, confirms and acknowledges that all loan documents (the Note, the Mortgage, the Say-Ford
Security Agreement, the Young's Food Market Security Agreement, the Say-Ford Financing
646216.3
3
Statements, the Young's Food Market Financing Statements, and any and all addenda or supplements
thereto, and other related documents executed by the K waks, or either of them, and delivered to the
Bank (hereinafter collectively referred to as the "Loan Documents")) concerning the indebtedness as
referenced hereinabove and the Confessed Judgment are valid, binding and in full force and effect as
of the date hereof, and that the Kwaks have no defense, setoff, counterclaim or challenge against the
payment of any and all sums owing under the terms of the Loan Documents or the enforcement or
validity of any of the terms thereof.
3. Re-affirmation of Certain Collateral. Mr. Kwak hereby confirms and re-affirms that
the equipment listed on Schedule A hereto is part of the Say-Ford Collateral and/or the Young's Food
Market Collateral and is subject to a perfected, first lien security interest in favor of the Bank. Mr.
Kwak further agrees not to move any or all of the equipment set forth on Schedule A from the
location set forth on Schedule A without first obtaining the express, written consent of the Bank,
which consent may not be unreasonably withheld. Mr. K wak also agrees not to sell any of the
equipment set forth on Schedule A without first obtaining the express, written consent ofthe Bank,
which consent may be withheld for any reason.
4. Payment of Indebtedness. On or about December 29,2004, Mr. Kwak paid the Bank
$30,000.00, for all past due payments, late charges, attorneys' fees and costs due under the Note and
inconsideration for the Bank's agreeing to enter into this Agreement. On or before April 1,2005,
Mr. Kwak shall pay the Bank a principal and interest payment of$3,923.65. On or before May 1,
2005, Mr. Kwak shall pay the Bank a principal and interest payment of$3,923.65. On or before June
1,2005, Mr. Kwak shall pay the Bank a principal and interest payment of$3,923.65. On or before
646216.3
4
July 1,2005, Mr. Kwak shall pay the Bank a principal and interest payment of$3,923.65. On or
before August 1,2005, Mr. Kwak shall pay the Bank a principal and interest payment of $3,923.65.
On or before September 1, 2005, Mr. Kwak shall pay the Bank a principal and interest payment of
$3,923.65. On or before October I, 2005, Mr. Kwak shall pay the Bank a balloon payment of all
principal, interest, late charges, attorneys' fees and costs, if any, then due under the Note.
5. Forbearance Term. The Bank hereby agrees to forbear from exercising the rights and
remedies available to it as a result of the defaults which have occurred prior to the date hereof until
the earlier of October 1,2005 or an Event of Default (as hereinafter defined).
6. Interest. Interest will continue to accrue on the outstanding principal balance at the
contractual rate set forth in the Note.
7. Financial Statements. During the term ofthis Agreement, Mr. Kwak shall, upon
request, provide any and all financial information the Bank may so request from time to time,
including, but not limited to, a copy of his most recently filed federal income tax returns and current
fully-executed financial statements.
8. Events of Default. The occurrence of anyone or more ofthe following is an Event of
Default hereunder:
a) Mr. Kwak fails to observe or perform each and every provision of this Agreement, the
Note, and any other loan documentation relative to the obligations of the Kwaks,
including, but not limited to, the failure to make the payments as provided herein;
b) Mr. Kwak files a petition under any provision of federal or state bankruptcy,
insolvency, moratorium or similar law, or such petition is filed against him;
646216.3
5
--.....-
c) Mr. Kwak misrepresents any warranty or representation given hereunder or
misrepresents any material fact hereunder.
9. Forbearance by Bank. In consideration ofthis Agreement, the Bank hereby agrees
that during the term of forbearance it shall take no action to collect its collateral or to enforce the
within obligations or the underlying obligations so as to provide Mr. Kwak with an opportunity to
resolve his financial difficulties as set forth herein. Said forbearance is conditioned upon Mr. Kwak's
complying with this Agreement.
10_ Binding Effect. This Agreement shall be binding upon the parties hereto, their
executors, administrators, heirs, successors and assigns. Mr. Kwak shall not have the right to assign
his rights hereunder without prior written consent of the Bank.
11_ Inspections and Appraisals. Mr. K wak hereby grants to the Bank the right at any time
and from time to time to conduct inspections and/or appraisals of any or all of its collateral, including
the Mortgaged Property, the Say-Ford Collateral and the Young's Food Market Collateral.
12. Govemillg Law alld Vellue. This Agreement shall be governed, construed and
enforced in accordance with the laws of the Commonwealth of Pennsylvania. Any and all disputes
hereunder shall be commenced and resolved in any of the courts of common pleas of Pennsylvania.
13. No Waiver or Novation. Nothing herein contained and no actions taken by the Bank
herein or in connection herewith shall constitute or be deemed to be a waiver or release of any default
by Mr. Kwak of his obligations, or ofthe security interests, rights, remedies or privileges afforded to
the Bank thereunder. Nothing herein shall constitute a waiver by the Bank of Mr. Kwak's
non-compliance with the terms of his obligations, nor shall anything contained herein constitute an
646216.3
6
agreement by the Bank to enter into any further agreements with Mr. Kwak. Neither this Agreement
nor any other documents to be executed in connection herewith is in any way intended to constitute a
novation of or a waiver of any of the underlying obligations. The Note and any and all other
agreements in writing between Mr. Kwak and the Bank shall remain in full force and effect. In the
event of any inconsistency between the terms ofthis Agreement and the terms of the Loan
Documents, the terms of this Agreement shall prevail. All other terms, conditions and covenants set
forth in the Loan Documents, except as expressly modified herein, remain unchanged and in full force
and effect.
14. Extension. Nothing herein shall be construed as a representation or warranty by the
Bank that the forbearance term granted herein shall be extended or renewed and the parties hereto
confirm and acknowledge that no further extensions or renewals have been promised.
15. Time. Time is of the essence of each provision of this Agreement.
16. Construction. The parties acknowledge that each party and each party's counsel have
reviewed and revised this Agreement and that the normal rule of construction to the effect that any
ambiguities are to be resolved against the drafting party will not be employed in the interpretation of
this Agreement or any amendments or schedules hereto.
17. Release. Mr. Kwak hereby waives and releases the Bank, its officers, employees,
agents, representatives, attorneys and directors and their executors, administrators, heirs, successors
and assigns from any and all claims, causes of action, set-offs, recoupments, actions, debts, damages,
liabilities and expenses which they may have against the Bank in connection with the Note, any
646216.3
7
action or inaction of the Bank or in any way related to the Loan Documents and/or the negotiation of
this Agreement.
18. Voluntary Agreement. Mr. Kwak represents and warrants to the Bank that (i) he is
represented by legal counsel of his choice in regard to the transaction provided for in this Agreement
and that such counsel has explained to him the significance of the terms, and the full meaning and
effect ofthis Agreement; (ii) he is fully aware and clearly understand all of the terms and provisions
contained in this Agreement; (iii) he has voluntarily, with full knowledge and without coercion or
distress of any kind, entered into this Agreement and the documents executed in connection with this
Agreement; (iv) he is not relying on any representations either written or oral, express or implied,
made to them by the Bank other than as set forth in this Agreement; and (v) the consideration
received by Mr. Kwak to enter into this Agreement and the arrangement contemplated by this
Agreement is fair, reasonable, equitable, actual and adequate.
19. Modification. This Agreement may not be modified except by a writing executed by
the parties hereto with the same formality as this Agreement.
20. Gender and Number. Unless otherwise specified, the masculine shall include the
feminine and the neuter and vice versa. The singular-shall include.the_pluraLandvice versa..
21. Additional Instruments. Each party shal1, at the request of the other party, execute,
acknowledge and deliver whatever additional instruments may be required in order to accomplish the
intent of this Agreement.
22. Invalidity. In the event anyone or more of the provisions contained in this
Agreement shall for any reason be held to be invalid, illegal or unenforceable in any respect, such
646216_3
8
-...-).
(....,
\ l~
,
.
.__._n"__________._______
invalidity, illegality or unenforceability shall not affect any of the provisions of this Agreement, and
this Agreement shall be construed as if such invalid, illegal or unenforceable provisions had never
been contained herein.
23. Counterparts. This Agreement may be executed in identical counterparts which
together shall constitute a single agreement.
24. CompleteAgreement. This is the complete agreement and there is no written or oral
understanding or agreement directly or indirectly connected with this Agreement that is not
specifically incorporated herein by reference.
25. Waiver of Jury Trial. Mr. Kwak and the Bank irrevocably, as an independent
covenant, waive jury trial and the rights thereto in any action or proceeding between Mr. Kwak
and the Bank.
IN WITNESS WHEREOF, Mr. K wak and the Bank, intending to be legally bound hereby,
have executed this Agreement the day and year first above written_
~(.c.{h-
ATTEST:
MELLON BANK, N.A., now by assignment,
CITIZENS B OF PENNSYLVANIA
/
BY:
646216.3
9
.'
SCHEDULE A
Savford Market Secured Equipment
Sharp ER-A330 Cash Register
TEL SL 9000
Casio PCRT 2000 Cash Register
Mega Refrigerator Unit
Panasonic KX-FP121 Fax Machine
Pre Fab 10 x 12 Walk In Cooler
Bunn Coffee Maker VPS Series
Hobart Meat Tenderizer
Power Cooler 2 Door
Bird Meat Cutter
Beverage Air Deli Cooler
Heat Sealer 20 Inch
True Deli Bar Refrigerator
Berkel Meat Slicer 3340
Hussman Meat Cooler Displays (3)
Berkel Meat Slicer 919/1
Tafco Pre Fab Walk In Cooler 12 Door
Eastern Mfg. Checkout Computer
System
(1) Master Computer
(2) Check Out Stations
Tafco Pre Fab Walk In Freezer 12 Door
Whirlpool Range
Younq's Market (Newville. PAl Secured Equipment
Powers Sliding Cooler with butcher top cover, Ser. No. B947-556
Migdi Deli Case with Bottom Refrigerator, Ser. No. 894004
21/2 x 3' Tappan Chest Freezer
Sturdi-Bilt up Draft and Exhaust Fan
30" Comstock-Castle Stove, Ser. No. 7MM420
Castle Pizza 2-Shelf Oven, Ser. No. 6MM128
Westy Cash Register Sanyo, Ser. No. 63404445
Slicer Model 919-1 , Ser. No. 9365-1151-09830
~----., ,/ .
-_____ ) ,<"? ') /-/(S: /<.::
/ SANd HO K1AIAK-
//
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,/' /'
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Sworn to and subscribed before me
this l th day of A pr \ \
,2005.
COMMONWEALTH OF PENNSYLVANIA
Notarial Seal
Rhonda Heffelfinger, Notary Public
City Of Harrisburg. Dauphin County
My Commission Expires Apr. 22. 2008
Member, Pennsylvania Association Of Notaries
\ {'II. I ~ .
~l0T\..()Y\'{/u~ \ J I vJ'("f""'->
.
COMMONWEALTH OF PENNSYLVANIA
SS:
COUNTY OF LUZERNE
",tit
ON THIS, the J ~ day of
)fJ fre I I
, 2005, before me, the undersigned officer,
personally appeared Joseph E. Sweeney, who acknowledged himselfto be Assistant Vice President of
Citizens Bank of Pennsylvania, and that he, being authorized to do so, executed the foregoing
instrument for the purposes herein contained by signing the name of Citizens Bank ofPennsylvani~,
by himself, as Assistant Vice President.
IN WITNESS WHEREOF, I have hereunto set my hand and notarial seal.
COMMONWEALTH OF PENNSYLVANIA
Notarial Seal
Jane A. Muscavage, Notary Public
City OfWilkes-Barre, Luzeme County
My Commission Expires Nov. 3, 2007
Member. Pennsylvama Association Of Notaries
~~
Ji:J- "--
N~ Y LIC ~/
COMMONWEALTH OF PENNSYLVANIA
SS:
COUNTY OF
ON THIS, the ~ day of -..Bf r I \
,2005, before me, the undersigned officer,
personally appeared Sang Ho K wak, known to be (or satisfactorily proven) to be the person whose
name is subscribed to the within instrument, and acknowledged that he executed the same for the
purpose therein contained.
iN WITNESS WHEREOF, 1 have hereunto set my hand and notarial seaL
~'
~'\- /\
NOTARYPUBLI .
646216.3
COMMONWEALTH OF PENNSYLVANIA
Notarial Seal
Rhonda Heffelfinger, Notary PUbl'lC
City Of Harrisburg, Dauphin County
My Commission Expires Apr. 22, 2008
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SHERIFF'S RETURN - OUT OF COUNTY
CASE NO: 2005-04421 P
COMMONWEALTH OF PENNSYLVANIA:
COUNTY OF CUMBERLAND
MELLON BANK NA NOW CITIZENS
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 COMPLAINT & NOTICE
On October
31st , 2005 , this office was in receipt of the
attached return from DAUPHIN
Sheriff's Costs:
Docketing
Out of County
Surcharge
Dep Dauphin County
Postage
18.00
9.00
10.00
49.25
4.35
90.60
10/31/2005
HOURIGAN KLUGER
So answers:
-:~ '.--,. ."."."""'" "..~.,."".< ---- ,..
$:.-::---~~ ~/
./ ~:
R. Thomas Kline
Sheriff of Cumberland
County
QUINN
Sworn and subscribed to before me
....
/0-
day of lil.~
this
;Z ov ,>'
~D. . .~
/ ~tary
SHERIFF'S RETURN - OUT OF COUNTY
CASE NO: 2005-04421 P
COMMONWEALTH OF PENNSYLVANIA:
COUNTY OF CUMBERLAND
MELLON BANK NA NOW CITIZENS
VS
KWAK SANG HO ET AL
R. Thomas Kline , Sheriff or Deputy Sheriff who being
duly sworn according to law, says, that he made a diligent search and
and inquiry for the within named DEFENDANT
, to wit:
KWAK SANG HO D/B/A YOUNG'S
FOOD MARKET
but was unable to locate Him in his bailiwick. He therefore
deputized the sheriff of DAUPHIN County, Pennsylvania, to
serve the within COMPLAINT & NOTICE
On October
31st , 2005 , this office was in receipt of the
attached return from DAUPHIN
Sheriff's Costs:
Docketing
Out of County
Surcharge
6.00
.00
10.00
.00
.00
16.00
10/31/2005
HOURIGAN KLUGER
So answer$,:
____0 ~-,,__-,~>i!'~~"'- c.--
,,/ ~....-</--- ~~_. c'/"'
R. Thomas Kline --
Sheriff of Cumberland
County
QUINN
Sworn and subscribed to before me
this !t) >:::.- day of711:1~L
,JOD! A.D. ~
f!~"1
SHERIFF'S RETURN - OUT OF COUNTY
CASE NO: 2005-04421 P
COMMONWEALTH OF PENNSYLVANIA:
COUNTY OF CUMBERLAND
MELLON BANK NA NOW CITIZENS
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 COMPLAINT & NOTICE
On October
31st , 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
10/31/2005
HOURIGAN KLUGER
So answers.:
" .... ---.-~_.-,.-,,~~.
.,i. /~ /~;<-///--
R. Thomas Kline
Sheriff of Cumberland County
QUINN
Sworn and subscribed to before me
this
",.
Jf) -
day of ~~
. /
Joe,
~
p' 0 otar
In The Court of Common Pleas of Cumberland County, Pennsylvania
Mellon Bank NA
VS.
Sang Ho Kwak et al
SERVE: Sang Ho Kwak
No.
05-4421 civil
Now,
September 26, 2005
, 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.
~~~"U::r/~~
Sheriff of Cumberland County, PA
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
SERV1CE .
MILEAGE
AFFIDAV1T
$
$
@{{b:~ of tlp~ ~4priff
William T. Tully
Solicitor
Charles E. Sheaffer
Chief Deputy
Mary Jane Snyder
Real Estate Deputy
Michael W. Rinehart
Assistant Chief Deputy
Dauphin County
Harrisburg, Pennsylvania 17101
ph: (717) 780-6590 fax: (717) 255.2889
Jack Lotwick
Sheriff
Commonwealth of Pennsylvania
MELLON BANK NA N/B/A CITIZENS BANK OF
vs
County of Dauphin
KWAK SANG HO D/B/A YOUNGS FOOD MARKET
Sheriff's Return
No. 1691-T - -2005
OTHER COUNTY NO. 05-4421
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 SANG HO INDIVIDUALLY
the DEFENDANT named in the within NOTICE OF HEARING FOR SEIZURE & COMPL
and that I am unable to find him/her in the County of Dauphin, and
therefore return same NOT FOUND, September 3D, 2005
PER MR, KWON, DEFT MOVED, ADDRESS UNKNOWN
Sworn and subscribed to
So Answers,
Jf~
before me this 4TH day of OCTOBER, 2005
Sheriff of Dauphin County, Pa.
~A/
By
NOT ARlAL SEAL
MARY JANE SNYDER, Notary Public
Highspire, Dauphin County
My Commission Expires Sept 1,2006
Deputy Sheriff
Sheriff's Costs: $49.25 PD 09/2B/2005
RC1?T NO 210949
In The Court of Common Pleas of Cumberland Cm.lnty, Pennsylvania
Mellon Bank NA
VS.
Sang Ho Kwak et al
Sang Ho Kwak d/b/a Young's Food Market
SERVE:
NO.
05-4421 civil
Now,
September 26. 2005
, 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. '
../'J / ~
?"'~~r~~
Sheriff of Cumberland County, PA
Affidavit of Service
,20--> at
o'clock
M. served the
Now,
within
upon
at
by handing to
a
copy of the original
and made ]mown to
the contents thereof.
So answers,
Sheriff of
County, PA
Sworn and subscribed before
me this _ day of ,20_
COSTS
SERVICE
MILEAGE
AFFIDAVIT
$
$
@ttb:~ of tlp~ ~4Pt'iff
William T. Tully
Solicitor
Charles E. Sheaffer
Chief Deputy
Mary Jane Snyder
Real Estate Deputy
Michael W. Rinehart
Assistant Chief Deputy
Dauphin County
Harrisburg, Pennsylvania 17101
ph: (717) 780-6590 fax: (717) 255-2889
Jack Lotwick
Sheriff
Commonwealth of Pennsylvania
MELLON BANK NA N/B/A CITIZENS BANK OF
vs
County of Dauphin
KWAK SANG HO D/B/A YOUNGS FOOD MARKET
Sheriff's Return
No. 1691-T - -2005
OTHER COUNTY NO. 05-4421
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 SANG HO D/B/A YOUNGS FOOD MARKET
the DEFENDANT named in the within NOTICE OF HEARING FOR SEIZURE & COMPL
and that I am unable to find him/her in the County of Dauphin, and
therefore return same NOT FOUND, September 30, 2005
PER MR KWON DEFT MOVED, ADDRESS UNKNOWN
Sworn and subscribed to
before me this 4TH day of OCTOBER, 2005
So Answers,
If~
Sheriff of Dauphin County, Pa.
~4J
By
NOTARIAL SEAL
MARY JANE SNYDER, Notary Public
Highspire, Dauphin County
My Commission Expires Sept 1, 2006
Deputy Sheriff
Sheriff's Costs: $49.25 PD 09/28/2005
RCPT NO 210949
In The Court of Common Pleas of Cumberland County, Pennsylvania
Mellon Bank NA
VS.
Sang Ho Kwak et al
SERVE: Yon Hwa Kwak
No.
05-4421 civil
Now,
September 26, 2005
, 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.
../7 /' ij
~~c.,t:<..~~
Sheriff of Cumberland County, P A
Affidavit of Service
Now,
,20_, at
o'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
AFFIDAVIT
$
$
@ffice of t4c ~4c:riff
William T. Tully
Solicitor
Charles E. Sheaffer
Chief Deputy
Mary Jane Snyder
Real Estate Deputy
Michael W. Rinehart
Assistant Chief Deputy
Dauphin County
Harrisburg, Pennsylvania 17101
ph: (717) 780-6590 fax: (717) 255-2889
Jack Lotwick
Sheriff
Commonwealth of Pennsylvania
MELLON BANK NA N/B/A CITIZENS BANK OF
vs
County of Dauphin
KWAK SANG HO D/B/A YOUNGS FOOD MARKET
Sheriff's Return
No. 1691-T - -2005
OTHER COUNTY NO. 05-4421
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 NOTICE OF HEARING FOR SEIZURE & COMPL
and that I am unable to find him/her in the County of Dauphin, and
therefore return same NOT FOUND, September 30, 2002
PER MR KWON DEFENDANT IS DECEASED
Sworn and subscribed to
So Answers,
:;I?~
before me this 6TH day of OCTOBER, 2005
Sheriff of Dauphin County, Pa.
~&J
By
NOTARIAL SEAL
MARY JANE SNYDER, Notary Public
Highspire, Dauphin County
My Commission Expires Sept 1, 2006
Deputy Sheriff
Sheriff's Costs: $49.25 PD 09/28/2005
RCPT NO 210949
HOURIGAN, KLUGER & QUINN
A PROFESSIONAL CORPORATION
BY:
JAMES T. SHOEMAKER. ESQUIRE
ATTORNEY FOR PLAINTIFF
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,
:IN THE COURT OF COMMON PLEAS
:OF CUMBERLAND COUNTY
Plaintiff
vs.
:CIVIL ACTION .- LAW
REPLEVIN
SANG HO KWAK, individually and d/b/a
Young's Food Market and YON HWA KWAK
Box 572, RD#3, Bloserville Road
Newville, PA 17241,
05-4421
PRAECIPE TO DISCONTINUE CASE WITHOUT PREJUDICE
TO: Prothonotary
Kindly discontinue the plaintiff's action in the above-referenced matter without
prejudice. Thank you.
Respectfully submitted,
HO , KLUGER ~N, P.C.
;/'
Ja T. Shoemaker, Esquire
Id No: 63871
Counsel for the plaintiff, Citizen Bank of
Pennsylvania
B'
600 Third Avenue
Kingston, PA 18704
(570) 287-3000 Telephone
(570) 287.8005 Facsimile
Dated: December 12, 2005
693803.1
.'
c:-'
,-
,Cr..!
\
,
MELLON BANK, NA, now
By assignment CITIZENS BANK:
OF PENNSYLVANIA,
Plaintiff
v.
SANG HO KW AK and YON
HWAKWAK,
Defendants
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
CIVIL ACTION - LA W
NO. 05-4421 CIVIL TERM
IN RE: PLAINTIFF'S MOTION FOR WRIT OF SEIZURE
ORDER OF COURT
AND NOW, this 12th day of December, 2005, upon consideration of the attached
letter from Patricia A. Haney, Paralegal to James T. Shoemaker, Esq., attorney for
Plaintiff, the hearing previously scheduled for December 15, 2005, is cancelled.
_.~James T. Shoemaker, Esq.
600 Third A venue
Kingston, PA 18704-5815
Attorney for Plaintiff
/-!Vl.ichael L. Solomon, Esq.
212 Locust Street
P.O. Box 9500
Harrisburg, P A 17108-9500
Attorney for Defendants
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BY THE COURT,
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12/12/05 10:42
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RightFAX
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HOURIGAN, KLUGER & QUINN
A PRO"ESSIONAL C~PORA.TlOO
ALLANM KLUGE'"
RIf:HARD M GOL DBERG
RIf:HAfID S BISHOr>
JAMEST SHOEMAKER
MIC':HAFI J KOWAI.<;KI
RIC':HARDM WII.I.IAIoI:;
TFRFlENCEJ HE""ON
JENNIFER L ROGERS'
M;f:HAEL,II, ~OMBARDO III
HIl Viol Or.H"FIT!'""
JOSEPHA QUINN, JR
AFI'THUFI L i>ICCONE
JOSl':PHE KlUGEFl
DONALD r: lIGORIO
IIlICHELLE ill QUINN
D....VIDAIKENS,JI'!
DAVIDW SABA
AMANDA V WF!:IGHT.KlUGEFl
MICHAEL T !lLAZICK
LAW OFFICES
600 THIRD AVENUE
KINGSTON, PA 1 8704.5815
(570) 287-3000
FACSMIlE (570) 287-800S
E-MAIL: hkq@hkqpc.com
OF COUNSE,
RO!lEFlTr: CORDARO
ANDREW HOUFlIGAN, JIiI
194f\.1978
'ALSOMEMBEIl NJ BAF!:
Ext.1195
December 12, 2005
Sent via overnigbt mail and [ax to 717-240-6460
Cumberland County Court Administrator
Cumberland County Courthouse
One Courthouse Square
Carlisle PA 17013
At1n: Melissa
RE: Mellon Bank, N.A., now by assignment, Citizens Bank o[ Pennsylvania v. Sang
Ho Kwak, individually and dba Young's Food Market and Yon Hwa Kwak
05 .~~21 (Cumberland County Replevin)
GUfFile No. 5001-4870
Dear Melissa:
!\UITE TWO HUNGRED
43.e LACK....WANNA AVE
SCRANTON, PA 11:1503.2014
(570) 346-1:1414
FACSIMILE(570) 961-5072
Please cancel the hearing on the motion for \Wit of seizure in connection with the above matter which was
scheduled for December 15, 2005. A praecipe to discontinue this action is being filed.
Thank you for your assistance with thi.1i matter.
Please call me if you have any questions.
Sincerely,
Patricia A. Haney, Paralegal
EnLI.
cc: Joseph E. Sweeney
Michael 1,. Solomon, Esq.
James T. Shoemaker, Esq.
696126.1