HomeMy WebLinkAbout06-0433
IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA
CIVIL DIVISION
SNAP-ON CREDIT, LLC
Plaintiff
No, Olo - /..j J3
Ct'uiL"T~
vs.
COMPLAINT IN REPLEVIN
JOHN M . CRIST and JOHN
M. CRIST HOLDINGS, INC.
Defendants
FILED ON BEHALF OF
Plaintiff
COUNSEL OF RECORD OF
THIS PARTY:
William T. Molczan, Esquire
PA!.D. #47437
WELTMAN, WEINBERG & REIS CO., L,P.A.
2718 Koppers Building
436 Seventh A venue
Pittsburgh, PAl 5219
(412) 434-7955
WWR 1\0. 049636t8
IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY. PENNSYLVANIA
CIVIL DlV1SION
SNAP-ON CREDIT, LLC
Plaintiff
vs.
Civil Action No, 0'- - 'i'::: 3 ~TIl-
JOHN M . CRIST and JOHN
M, CRIST HOLDINGS, INC.
Defendants
COMPLAINT IN REPLEVIN AND NOTICE TO DEFEND
You have been sued in court. If you wish to defend against the claims set forth in the following pages, you
must take action within twenty (20) days after this complaint and notice are served, by entering a written
appearance personally or by an attorney and filing in writing with the court your defenses or objections to the
claims set forth against you. You are warned that if you fail to do so the case may proceed without you and a
judgment may be entered against you by the court without further notice for any money claimed in the complaint or
for any other claim or relief requested by the plaintiff. You may lose money or prope11y or other rights important to
you.
YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. OF YOU DO NOT HAVE A
LA WYER OR CANNOT AFFORD ONE, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW TO
FIND OUT WHERE YOU CAN GET LEGAL HELP
Cumberland County Bar Association
32 South Bedford Street
Carlisle, Pa 17013
(717) 249-3166
WWR No. 04963618
COUNT I - REPLEVIN
]. Plaintiff is a corporation having offices at Libertyville, II 60048.
2. Defendant, John M, Crist, is an adult individual residing at 1201 Cross Creek Drive,
Mechanicsburg,Pa 17050. Defendant, John M. Crist Holdings, lnc" is a Pennsylvania Corporation doing business
at 1201 Cross Creek Drive, Mechanicsburg,Pa 17050.
3. Plaintitl'is the holder ofa Loan and Promissory Note (hcreinaftcr the "Contract'.) and Security
Agreement secured by a equipment duly executed and delivered by Defendant in favor of Snap-On Credit. LLC all
or about August 13, 2004, A true and correct copy of the Contract and Security Agreement is attached hereto.
marked as Exhibit "1" and made a part hereof.
4, Pursuant to said Contract and Security Agreement, Defendant took possession of the equipment
more particularly identified in the attached exhibit "2".
5. Snap-On Credit, LLC subsequently assigned its right, title and interest in said Installment Sale
Contract and Security Agreement to Plaintiff.
6. Under the terms of the Contract, Defendants were to make Five Hundred and Nineteen (519)
consecutive monthly payments of $551.11 beginning May 5.2000.
7. The total principal amount due to Plaintiff pursuant to the Contract was $179.168,22.
8. Plaintiff maintains a first lien on the aforesaid equipment.
WWR No. 04963618
9. Defendant is in default of the terms and conditions of the Contract because Defendant has failed to
make the required monthly payments since September 26, 2005.
] O. Plaintiff is entitled to immediate possession of said equipment which Plaintiff holds a security
interest in and any proceeds of/he equipment by virtue of Defendants' default.
11. Defendant has made partial payment under the Contract leaving an unpaid balance in the amount of
$164,619.96 as of January 1],2006.
12. Plaintiff avers that the Contract provides for finance charges at the rate of 10.25% per annum.
13. Plaintiff has performed all conditions precedent as holder of all right, title and interest in the
collateral, but Defendant wrongfully remain in possession of the cquipment at the above-stated address.
14. By virtue of Defendants' default. PlaintilThas an immediate right to possession of the equipment
covered by the Security Agreement
] 5, Under the terms of the Contract, Defendant has undertaken to pay to Plaintiff its reasonable
attorneys' fees and costs of retaking possession of the collateral.
WHEREFORE, Plaintiff prays for Judgment against Defendant, John M, Crist and John M. Crist Holdings,
Ind., jointly and severally, in Count I of this Complaint In Replevin. as follows:
A, For possession of the equipment, morc particularly identilied as a exhibit "2".
WWR No. 049636 t 8
COUNT II
ACTION IN CONTRACT FOR IN PERSONAM DAMAGES
16. Plaintiff incorporates herein by reference thereto each of the preceding paragraphs of this
Complaint in their entirety as if the same were more fully set forth herein.
17, In the alternative to Count I, Plaintiff pleads an action in contract as a result of Defendants' default
for the accelerated balance due under the Contract in the amount of $164.619 .96, plus appropriate additional
finance charges at the rate of 10.25% per annum on the balance due from January 1].2006 and costs.
18. Under the terms of/he Contract, Plaintiff is entitled to recover reasonable attorneys' fees and costs
of retaking possession of the collateral.
19, Plaintiff avers that such attorneys' fees amount to $1,500,00 to date,
WHEREFORE, Plaintiff prays for the entry of Judgment on Count II against Defendant, John M, Crist and
John M, Crist Holdings, Inc. jointly and severally, in the amount of$164.619.96 plus continuing linance chargcs at
the aforesaid rate of 1 0.25% per annum from January 11. 2006, expenses for retaking possession. attorneys fees of
$1,500.00 and costs,
WELTMAN. W9,dNBERG AND REIS. CO, L.P.A.
t/," / 1'/1.
i /.......----: II.
V~ 1_.. (;tr---
William . Molcza Sq~.
PA J.D. #47437 /
WELTMAN, WEINBER(f & REIS CO., L.P.A,
2718 Koppers Building
436 Seventh Avenue
Pittsburgh, P A 15219
(412) 434-7955
WWR 1\0.04963618
LOAN AND SECURITY AGREEMENT
. .. This Lc:'AN AND SEC~ AGREEMENT (this "Agreement") is made between Snap-on Credit LLC, a Delaware limited liability company with
Its pnnclpal place of bus mess at 1125 Tn-State ParJ..."'Way, Gurnee, Illinois, 60031 ("Lender"), and JOHN M. CRIST HOLDINGS. INC. ("Borrower"), a corporation
with its principal place of business at 120J CROSS CREEK DR. MECHANICSBURG, FA 17050.
WHEREAS, Borrower has entered into a Dealer Franchise Agreement with Snap-on Tools Company LLC ("Snap.on"), an affiliate of Lender,
pursuant to which Borrower will operate a Snap-on dealership ("Dealership"); and
WHEREAS, in order to finance certain costs associated with the Borrower's Dealership and to provide working capital for such Dealership, Borrower
desires to borrow, and Lender is willing to lend money to Borrower upon the terms and conditions herein (the "Dealer Finance Program").
NOW, THEREFORE, the Lender and Borrower hereby agree as follows:
I. TIlE LOAN.
Subject to the tenns and conditions of this Agreement, Lender will
lend to Borrower the sum of$]79.]68.22 and such additional amounts
as agreed by addendum by the parties from time to time (the "Loan").
The Loan shall be evidenced by Borrower's promiss01)' note(s), in fonn
and substance acceptable to Lender, in the principal amount specified in
the preceding sentence (hereafter collectively referred to as the "Note").
The Note shall be executed and delivered to Lender before or
concurrently with Lender's disbursement of the Loan. The unpaid
principal amount of the Loan shall bear interest and shall be due and
payable as provided in the Note. As used in this Agreement, the term
"Borrower's Liabilities" shall include principal and interest under the
Note and any additional notes, together with all costs and expenses
(including reasonable attoTlleys' fees) to he paid by Borrower as provided
in this Agreement together with any other amount owed under any other
agreement between Borrower and Lender or Lenders and Assignees or
under any Lender sponsored van lease program ("Van Lease Program").
2. GENERAL TERMS.
a Default Rate. After the occurrence of an Event of Default under
this Agreement and so long as such Event of Default continues, the Note
and all other Borrower's Liabilities shall (subject to any limitations of
applicable law) bear interest at rates per annum equal to the respective
rate applicable to such Note and other Borrower's Liabilities prior to
such Event of Default plus four percent (411/,,), or the maximum rate
pennitted by applicable law.
b. Pavrnents. All payments under this Agreement and with respect
to a Note shall be made in immediately available funds by Borrower to
Lender by debiting Borrower's bank account, pursuant to instructions
duly executed by Borrower and delivered to Borrower's bank, on the date
when payments are due. Prepayments, if pennitted hereunder or under a
Note. may be made at Lender's offices at 1125 Tn-State Parkway,
Gurnee. Illinois, 60031 ('ILender's Principal Office") or at such other
10catiQn as Lender may designate. Whenever any payment to be made
hereunder or with respect to a Note shall be stated to be due on a date
other than a business day (or if Borrower's bank is not open on a
business day when an account is to be debited), such payment shall be
made on the next succeeding business day, and such extension of time
shall be included in the computation of interest or any fees. As used
herein, "business day" means any day on which Lender is open for
business at Lender's Principal Office. Lender may, at its option and
upon notice to Borrower, require Borrower to make all payments in
immediately available funds to Lender at Lender's Principal Office.
c. Mandatorv Preoavrnent for Reiected Revolvine: Accounts. In
the event Borrower receives Loan funds for the acquisition of accounts
receivable, commonly referred to as "Revolving Accounts" ("RA's") and
Borrower rejects all or any portion of said Revolving Accounts within
forty-five (45) days from date of disbursement of this Loan in
accordance with the provisions of Borrower's Dealer Franchise
Agreement with Snap-on, then upon receipt of reimbursement from
Snap won for said rejected Revolving Accounts, Borrower shall be
required to prepay a portion of the Loan in an amount equal to the
amount loaned for the acquisition of the rej~cted Revolving Accounts,
d. Van r ease Reouirement. Borrower acknowledges that Borrower
is obligated under his Dealer Franchise Agreement to acquire a van
meeting certain specifications. Borrower acknowledges that the van is
an integral part of Borrowers business operations. Borrower shall be
obligated under this Agreement to meet said van requirements through a
purchase or lease of a designated van from a designated source.
However, if Borrower acquires a van with no continuing financial
obligations by Borrower, then this specified van requirement shall not
apply, Van leasing may be with a third party unrelated to Lender
("ussor"). Borrower agrees to permit any infonnation regarding the van
lease to be obtained from Lessor at any time during the term of this
Agreement. In the event Borrower elects to pwiicipate under this Dealer
Finance Program and enter into this Agreement, Lender shall designate
both the van and the source. Payment for said van lease or purchase shall
be made through Lender in accordance with Section 2.b above and the
van lease Of purchase documents. Lender shall forward payments to
Lessor or lender of Ute van; provided, however, that in no event shall
Lender be obligated to make payments on behalf of LesseefBorrower
when such payment has not been paid to Lender by Borrower. No
portion of Borrower's payments to Lender with respect to the van lease
shall be retained by Lender beyond the period necessary for transmittal
on a monthly basis to Lessor or Lessors agent.
e. Aoolication of Payments. Lender will apply against Borrower's
Liabilities, on the date of receipt all payments received thereon,
including cash, collections of Accounts Receivable, proceeds of
Collateral (as hereinafter defined) and any other amounts; provided that
(n Lender shall charge back to Borrow~r any payments that may be
required to be returned to the entity making such payment and Borrower
shall continue to pay interest on the amount charged back from the date
that such payment was applied against Borrower's Liabilities; (ii) Lender
shall have the exclusive right to determine how, when and in what
amounts application of such payments and such credits shall be made on
Borrower's Liabilities, and such determination shall be conclusive and
binding upon Borrower. Lender's decision with respect to payment of
Borrower's Liabilities shall in no way relieve Borrower from its
obligation for payments. under Borrower's van lease or unoer this
Agreement or any other agreement. Pwiial prepayments by Borrower, if
permitted, shall not relieve Borrower from Borrower's obligation to make
weekly payments. Prepayments may be subject to a prepayment
premium and pwiiaI prepayments may be prohibited as provided under
the Note. Notwithstanding the foregoing or the tenns of any Note, in
the event the Borrower's Dealership is tenninated, unless tennination
is due to the relocation to another Dealership, Borrower shall not be
obligated to pay a prepayment premium or penalty, If Borrower's
Dealership is relocated, provided Borrower is not in default under this
Agreement or any Note, Borrower may elect to continue the existing
Loan and, thus, avoid a prepayment penalty. If upon relocation,
Borrower elects to repay the Loan in full. then Borrower may be
subject to a prepayment premium as pro~ided under the Note.
1
12/01 LSA 03/03
EXHIBIT
l
..
f. Late Charees and NSF Check Charees. To the extent
pennitted by and subject to applicable law, if Borrower fails to make
payments under the Loan within 10 days after the due date, Borrower
may be assessed a Late Charge of $10.00 or 5% of the amount due.
whichever is greater (or the maximum permitted by applicable law if
less). To the extent permitted by and subject to applicable law. if
Borrower makes payments by check under the Loan and Borrower's
check is not paid because of non-sufficient funds in Bonower's
checking account or a closed accoW1t, Borrower may be assessed an
NSF Check Charge of $25.00 (or the maximum permitted by
applicable law iflcss).
g. Statement of Account. An of Borrower's Liabilities shall constitute
one loan secured by the Collateral and by all security interests, liens,
claims and encumbrances heretofore, now or from time to time hereafter
granted by Borrower to Lender. In determining Borrowers Liabilities,
the books and records of Lender shall be controlling. All statements of
accounts rendered by Lender to Borrower concerning Borrower's
Liabilities hereunder, including all statements of principal, interest, fees,
expenses and costs owing to Lender by Borrower, shalt be presumed
correct and accurate and shall constitute an account stated between
Lender and Borrower unless Borrower, within 180 days after receipt of
the statement, delivers to Lender written objection, specifying the error
or errors, if any, contained in such statement. Lender, at its sole
discretion, may request Borrower to certify as to the accuracy of Lender's
records relative to Borrower's Liabilities and Borrower shall comply
within 30 days of such request.
3. COLLATERAL
a. Descrintion, Borrower hereby grants and assigns to Lender, and
agrees that Lender shall have, a security interest in the following
business property, assets, rights and interests of Borrower, whether now
owned or existing or hereafter acquired or arising (collectively, the
~Conateraln):
i. All of Borrower's Accounts (the tenn "Accounts" as used
herein includes, without limitation, aU of Borrower's accounts receivable
arising out of the sale or lease of Inventory or other goods or out of the
rendering of services), whether or not specifica1.1y assigned to Lender~
ii. All of Borrower's Inventory (the term "Inventory" as used
herein includes, without limitation, all of Borrower's goods held for sale
or lease or being processed for sale or lease, including all materials,
work-ill-process, finished goods, supplies and other goods - customarily
classified as inventory), including Inventory at any time in the
possession of any bailee;
iii. All of Borrower's business equipment (1he "Equipment");
iv. All of Borrower's goods, vehicles, (including Borrower's
van or truck) furnishings and fixtures wherever located but only to the
extent that such items are used primarily in connection with Borrower's
Dealership;
v. All of Borrower's cash, negotiable instrUments, documents
of title, warehouse receipts, chattel paper, general intangibles, securities,
leases, contract rights, certificates of deposit, deposit accounts, cash
equivalents, interest or dividends on any of the foregoing, insurance
claims, patents, trademarks, good will and other property of any kind or
description, wherever now or hereafter located, but only to the extent
that such items are used primarily in connection with Borrower's
Dealership; and
vi. Without limiting the foregoing, all substitutions, renewals,
improvements and replacements ot: and additions and accessions to, the
foregoing, and all products and proceeds of the foregoing, including,
without limitation. all of the proceeds in any form of Borrower's
Accounts and Inventory, whether specifically assigned to Lender or not.
Notwithsttmding the foregoing, if Borrower is an individual, Borrower's
residence, personal, family or household goods and assets not related to
or used primarily in connection with Borrower's Deatership are
specifically excluded from the definition of "Collateral." The tenns used
herein to identify the Collateral shall have the respective meanings
assigned to such tenns as of the date hereof in the Uniform Corrunercial
Code, as amended, in effect in the state listed in the introductory
paragraph as Borrower's adrlress (the "Dee"). The security interest
granted hereby shalt continue to attach to the Collateral notwithstanding
MY sale, exchange or other disposition of the Collateral by Borrower,
except for Inventory sold in the ordinary course of business. The
security interest herein granted is to secure the payment of all of
Borrower's Liabilities and the perfotll1ance of all of Borrower's
obligations to Lender hereunder and any and all other obligations of
Borrower to Lender of every kind and description, direct or indirect,
absolute or contingent, due or about to become due, now existing or
hereafter arising.
b. Financiml Statements. Borrower shall sign and deliver such
financing statements and other documents, in form satisfactory to
Lender, as Lender may at any time reasonably request in order to
effectuate or perfect Lender's security interest in the Collateral
hereunder, or facilitate the reaJization by Lender upon the Collateral, or
any part thereot: and shatl reimburse Lender for the costs of preparing
and filing the same. Further, to the extent permitted by and subject to
applicable law, Borrower hereby grants Snap-on or its agent or
assigns the power of attorney and right to sign on behalf of
Borrower and file or record, any and all such financing statements
and related documents as may be necessary to perfect or maintain
the security interest granted by Borrower under this Agreement.
Borrower authorizes Lender the right to describe the collateral in any
financing statement as "all business assets." This statement in any
financing statement shall not expand or limit the property given as
security for perfonnance of obligations under this Agreement as
described above.
c. lnsocction. Lender or its agents may at any reasonable rime
conduct a physical audit of Borrower's Inventory and inspect the
CoUateral and the books. and records of Borrower pertaining to the
Collateral, or any part thereat: and may make or require Borrower to
furnish copies or extracts from such books and records. Borrower, at its
sole cost and expense, shall keep and maintain satisfactory and complete
books and records of the Collateral until all of Borrower's Liabilities
shall have been fully paid and discharged. Lender shall have a special
property interest in and to any and all books and records of Borrower
pertaining to the Collateral, including any books and records retained by
Snap-on Tools Company LLC or its subsidiaries or affiliates, and upon
the occurrence of an Event of Default Borrower shan deliver such books
and records to Lender at the demand of Lender. At the request of
Lender, Borrower shall duly cause its accounts receivable ledger and
other books and records relating to the Collateral to be stamped, in fonn
and manner satisfactory to Lender, with a proper reference to the fact
that the Collateral has been assigned to Lender.
d. Preservation. Lender may, but shall not be obligated to, take
such action from time to time as it may in its sole judgment deem
appropriate to maintain or protect the Collateral, and for that purpose
may, among other things, at its option (i) payor obtain the removal of
any tax, lien, security interest, claim or encumbrance that may be levied
or placed on or with respect to any of the Collateral; (ii) pay the costs of
insurance on any of the Collateral; or (Hi) make any payment under any
lease or contract to which Borrower is a party in order to cure or avoid a
default thereunder. Borrower shall reimburse Lender, promptly upon
demand by Lender, for any costs or expenses incurred by Lender in the
protection or maintenance of the Collateral, including the expenditures
described herein and any costs to move the Collateral to another
location. Lender shall have exerdsed reasonable care in the custody and
preservation of any Collateral in its possession or control if it takes such
action for that purpose as Borrower shall request in writing, but the
failure to comply with any such request shall not be deemed a failure to
exercise reasonable care. Borrower shall have the sole responsibility for
taking such steps as may be necessary from time to time to preserve all
rights of Borrower and Lender in the Collateral against other parties.
Borrower shall keep the Collateral in good condition and repair and shall
not waste, destroy, hide, misappropriate any of the Collateral.
c. Insurance. Borrower shall maintain in effect at all times policies
of insuring against loss of or damage to all tangible property constituting
Collateral. Such insurance shall, except as may othelWise be agreed to
2
12/01 LSA 03/03
..
in writing by Lender, (i) cover all risks, (ii) be in amounts equal to the
full value of the Collateral, (iii) be provided by such companies as are
satisfactory to Lender, (iv) contain a lender's [ass payable clause naming
Lender as payee as its interest may appear, and (v) provide at least 10
days' prior wrinen notice to Lender of any cancellation. Borrower shall
cause a certificate of insurance evidencing the insurance coverage
required under this Agreement to be delivered to Lender prior to the
closing of the Loan under this Agreement After an Event of Default, as
hereinafter defined, Lender may act as attorney for Borrower in
obtaining and canceling such insurance and in adjusting and settling any
claims with respect thereto and endorsing any drafts received as a result
thereof.
f. Liens. Borrower represents and warrants that the Collateral is,
and covenants and agrees that it will keep the Collateral free from, any
lien, security interest (other than the security interest herein granted;
other security interests granted to Lender, Snap-on Tools Company LLC,
or their affiliates; and other liens pennitted under Section 5.aii below),
claim or encumbrance, and agrees to defend the Collateral against any
and all claims and demands of all persons at any time claiming the same
or any interest therein.
g. Use. Borrower shall not sell, assign, lease, transfer or convey
any of the Collateral or any interest therein; provided that, so long as no
Event of Default, as hereinafter defined, has occurred under this
Agreement, Borrower may sell Inventory in the ordinary course of
business (not including any transfer in connection with or in satisfaction
of any debt) and may sell or assign Accounts and equipment leases to
Lender, Snap.on Tools Company LLC, or their affiliates in the ordinary
course of business. Borrower may use and consume any supplies, the
use and consumption of which is necessary in order to carry on
Borrower's business, may use and operate any Equipment and may
otherwise use the Collateral in any lawful manner not inconsistent with
this Agreement, so long as no Event of Default has occurred under this
Agreement.
h. Locations. Borrower represents and warrants that all Collateral
shall be kept at the location indicated in the first paragraph of this
Agreement or other location preapproved by Lender; provided that
Borrower may move its business vehicles and their contents, including
Inventory and Equipment, so long as they are routinely returned to the
referenced location. Borrower shall notify Lender promptly in writing of
any change in Borrower's address or in the location of any Collateral or
use of any other names under which it is doing business.
i. Collection of Accounts. The collection of the Accounts and the
application of the proceeds received therefrom shall be subject to the
following:
i. Borrower is authorized to collect the Accounts or any part
thereof, but such authorization may be restricted or terminated by Lender
at any time in the Event of Default, as hereinafter defined. Borrower
shall not, without the prior written consent of Lender (i) grant any
extension of time for the payment of the Accounts; (ii) compromise,
compound or settle the Accounts or any part thereof for less than the full
amount thereof; (iii) release, in whole or in part, any person liable for the
payment of the Accounts or any part thereot: or allow any credit,
discount or allowance whatsoever upon the Accounts or any part thereof,
unless such activity shall be deemed to be in the ordinary course of
Borrower's business and will not occasion or threaten a material adverse
change in the financial condition or results of Borrower's business
operations.
ii. Upon the occurrence of an Event of Default (as hereinafter
defined) Lender may, without notice to or assent of Borrower, extend the
time of payment or compromise, settle for cash or credit or otherwise
settle, upon any terms or conditions, any part of the Accounts and
thereby discharge or release the person or persons liable for the payment
of the Accounts or any part thereof without affecting Borrower's
Liabilities to Lender. Lender may. but shall not be obliged to, demand
or enforce payment of the Accounts or any part thereof and shall not be
liable for its failure to collect or enforce the payment thereof or for the
negligence of its agents or attorneys with respect thereto.
iii. Upon the occurrence of an Event of Default, Lender,
without notice to Borrower, may notifY any person. corporation or
partnership (the "Obligorn) liable for the payment of any Account of the
fact that the Account has been assigned to Lender and may direct that
payment of such Account be made directly to Lender. If Lender so
requests after the occurrence of an Event of Default, all bills and
statements rendered by Borrower to the Obligor shall state that the same
has been assigned to Lender and is payable solely to Lender. When
requested by Lender after the occurrence of an Event of Default,
Borrower will notifY or cause to be notified the Obligor to pay directly to
Lender any sum or sums then due or to become due on account of the
Accounts or any part thereof.
4. REPRESENTATIONS AND WARRANTIES OF
BORROWER.
a. Borrower represents and warrants to Lender that, except as may
have been previously disclosed in writing to Lender;
i. Borrower is a sole proprietor of an unincorporated business
or is a duly organized, validly existing corporation or limited liability
company in good standing under the laws of its jurisdiction of
organization, and, if a corporation or a limited liability company, is duly
qualified and in good standing and authorized to do business in each
other jurisdiction where, because of the nature of Borrower's activities or
properties, such qualification is required;
ii. The execution and delivery of this Agreement, the
borrowings hereunder, the execution and delivery of the Note, and the
perfonnance by Borrower of its obligations under this Agreement and
the Note are within Borrower's powers and have been duly authorized by
all necessary action (corporate or other), and do not and will not
contravene or conflict with any provision of any organizational
documents (including, without limitation. any articles of incorporation
or by-laws) of Borrower or of any agreement or other document binding
upon Borrower or to which its assets are subject;
iii. This Agreement is, and the Note, when executed and
delivered will be legal. valid and binding obligations of Borrower
enforceable against Borrower in accordance with their respective tenns,
subject only to bankruptcy, insolvency and other similar laws generally
relating to or affecting the enforceability of creditors' rights;
iv. There are no legal. governmental, arbitration or other actions
or proceedings which are pending or threatened against Borrower which
might result in (a) any material adverse change in Borrower's financial
condition, or results of Borrower's business operations; or (b) materially
and adversely affect Borrowers' use of Borrower's property or assets,
including the Collateral;
v. Except as disclosed in the financial statements of Borrower
most recently delivered to Lender pursuant to or in connection with this
Agreement, Borrower has no indebtedness or other liabilities;
vi. Borrower is solvent and generally paying its debts as they
mature, and Borrower has capital sufficient to carry on its current and
proposed business and transactions;
vii. The financial statements, schedules and other infonnation
furnished to Lender prior to and after the execution and delivery of this
Agreement fairly and accurately present the financial condition and, if
applicable, results of operations of Borrower (and any other persons
described therein) as of and for the period ending on the date as of which
such financial statements are presented; and since the date of the
financial statements of Borrower most recently furnished to Lender,
there has been no material adverse change in the financial condition or
results of business operations of Borrower;
viii. Borrower has timely filed all material tax returns and
reports required to be filed by Borrower with any governmental entity,
and has timely paid all taxes, assessments, fees and other charges upon
Borrower and upon Borrower's properties, assets and income due and
payable;
ix. None of Borrower's Liabilities violates the provisions of the
usury laws or any other laws governing interest rates of any state having
jurisdiction over Borrower's Liabilities, this Agreement or any
transaction contemplated hereby; and the Loan is a loan to a business
3
12/01 LSA 03/03
...
and each of Borrower's Liabilities under this Agreement is primari\)' for
a business or commercial purpose and does not consist of or involve any
credit offered or extended to a consumer primarily for personal, family
or household purposes; and
x. The Borrower is not in violation of any applicable law,
regulation or ordinance of the United States of America or any state,
city, town, municipality, county or other jurisdiction. or arWlY agency or
instrumentality of any of the foregoing, in any respect materially and
adversely affecting its financial condition, results of operations of
Borrower's business. Of its property or assets, including, without
limitation, any law, regulation or ordinance relating to occupational
health or safety or protection of the environment, including hazardous
substances.
b. Borrower further represents and warrants that as of the date of
this Agreement and as of the disbursement of the Loan, Borrower is in
full compliance with aJl of Borrower's covenants under this Agreement
and there does not exist any Event of Default or other event which, but
for the passage oftime or giving of notice would be an Event of Default.
5. COVENANTS OF BORROWER.
a Nee:ative Covenants. Borrower shall not:
i. Sell, assign, lease, transfer or convey any of Borrowers
property or assets or any interest therein except sales of Inventory, sales
or assignmerlts of Accounts and equipment leases to Snap-on Tools
Company LLC, Lender, or their affiliates, and use of cash in the ordinary
course of business; and Borrower shall at all times have good title to and
ownership of its property and assets, including the Collateral, and shall,
except as permitted in Section S.a.\\ below, not allow, suffer or cause to
exist thereon any lien, claim, security interest or encumbrance
(including, without limitation, any lien or encumbrance of any
governmental entity or agency or with respect to any taxes or debts owed
thereto); provided that Borrower shall have the right to contest, in good
faith, with reasonable diligence and by appropriate proceedings, the
validity of any lien or encumbrance or claim thereot: but only if none of
the property or assets of Borrower is subject to sale or foreclosure during
such contest, and Borrower shall promptly pay any judgment rendered
against Borrower in connection with any such contest~
ii. Incur any indebtedness or guarantee or otherwise become
liable with respect to the obligation or indebtedness of any other person
or entity, whether for borrowed money or otherwise, except for
(a) indebtedness incurred in connection with the lease or purchase of
Borrower's van, computer system and other business equipment,
provided Lender consents in its sole discretion to such loan or lease, (b)
Borrower's Liabilities and any other indebtedness owed to Lender,
(c) extensions of the maturities of existing indebtedness and interest
thereon, (d) indebtedness which is unsecured and is to persons who
execute and deliver to Lender (in fonn and substance acceptable to
Lender) agreements subordinating such indebtedness and their claims
against Borrower irl connection therewith to the payment of Borrower's
Liabilities, (e) indebtedness for personal, family or household purposes
that is either unsecured or secured by assets other than the Collateral,
and (f) trade payables and other obligations arising in the ordinary
course of business;
iii. Enter into any transaction which materially and adversely
affects Borrower's ability to repay Borrowers Liabilities or any other
indebtedness of Borrower;
iv. Close or deplete the bank account from which payments on
the Note are to be debited pursuant to Section 2.b above, unless suitable
arrangements are made upon 30 days' written notice to Lender prior to
such closure or depletion for Lender to debit a different bank account;
and
v. Use the Loan or any portion thereof to make any "R.A.
Deposit" or other payment to Snap-on Tools Company LLC or its
affiliates (other than Lender) except payments for the purchase of
Inventory, Accounts or other assets for use in Borrower's Dealership.
b. Affirmative Covenants. Borrower shall:
i. Operate Borrower's business and properties in accordance
with and comply in all respects with all applicable laws, regulations and
ordinances of the Unitea States of America, of any state, city, town,
municipality, county or other jurisdiction, and of any agency or
instrumentality of any of the foregojng~
ii. Timely file all tax returns and reports required to be filed by
Borrower with any governmental entity, and timely pay all taxes,
assessments, fees and other charges upon Borrower and upon Borrower's
properties, assets and income;
Hi. Maintain sufficient funds in the bank account to be debited
pursuant to Section 2.b above to make each payment on the Note and
under this Agreement when and as due;
iv. Maintain levels of Inventory (at Borrower's cost) and
Accounts (excluding Accounts or equipment leases sold or assigned to
Snap-on Too]s Company LLC, lender or their affiliates in exchange for
consideration other than the Loan) at least equal to the original principal
amount of the Loan less any mandatory prepayments as required herein;
v. Use the Loan solely to acquire Inventory, Accounts and
other assets and for working capital in conneCtion with the
commencement and operation of Borrowers Dealership;
vi. Prepare and deliver to Lender, from time to time as
requested, financial statements and other information regarding the
financial condition and result'i of operations of Borrower's Dealership;
and
vii. Comply with all tenus of the van lease and any van
maintenance agreement.
6. DEFAVL T AND ACCELERATION BV LENDER.
a. Automatic Acceleration Without Notice. Borrower shall be
deemed in default under this Agreement and Lender may, at its option,
without prejUdice to any and all other rights and remedies it may have
under this Agreement or under applicable law, accelerate the Loan and
declare the entire unpaid amount of Borrower's Liabilities to be
immediately due and payable under this Agreement without notice to
Borrower in the following instances each of which shall be considered
an Event ofDefau]t:
i. If Borrower is adjudicated a bankrupt or becomes insolvent,
or has a trustee or receiver appointed by a court of competent
juriSdiction for all or any part of Borrower's property; or
ii. If a plan of liquidation, reorganiZation, composition or
arrangeroer.t ofBoITOwer's Bflairs is sought to be instituted for or against
Borrower, whether or not the same is subsequerltly approved by a court
of competent jurisdiction; or
Hi. If a proceeding is filed under any bankruptcy laws or other
similar laws and such proceeding is not dismissed within ninety (90)
days after filing;
iv. If Borrower makes a genera] assignment for the benefit of
creditors; or
v. Upon the death or incapacity of Borrower (or the stockholder
of a corporate Borrower)~ or
vi. If Borrower shall cease to be an authorized Snap-on Dealer
because of the termination of,. or the transfer or assignment of rights
under, the Dealer Franchise Agreement, the Conversion Dealer
Franchise Agreement, or any other Dealer Agreement betweerl Borrower
and Snap-on Tools Company LLC (or an affiliate thereof).
b. Acceleration Uoon Notice. Borrower shall be deemed in default
under this Agreement and Lender may, at its option, without prejudice to
any and all otl1er rights and remedies it may have under this Agreement
or under applicable law, accelerate the Loan and declare the entire
unpaid amount of Borrowers Liabilities to be immediately due and
payable under this Agreement effective upon Borrower's receipt of
written notice of acceleration in the following instances each of which
shall be considered an Event of Default
i. If Borrower fails to satisfy any material judgment against
Borrower within thirty (30) days after the judgment is entered and
becomes final; or
ii. If any representation or warranty of Borrower contained in
this Agreement or in any document or instrument delivered pursuant to
this Agreement is untrue or incorrect; or
4
12101 LSA 03/03
.
..
Hi. If Borrower falsifies any report or document required to be
furnished Lender, or has made a material misrepresentation in
connection with the approval of Borrower under this Agreement, or
engages in conduct involving dishonesty in dealing with Lender; or
iv. If Borrower has any obligations outstanding to Lender under
this Agreement and Borrower's equity, as determined in accordance with
a physical inventory, and review of RA balances has declined from the
previous inventory and review of RA balances (or, if no physical
inventory has yet been conducted, since Borrower began operations) and
Borrower's equity in Borrowers Dealership is not restared by the next
physical inventory and review of RA balances (which may be taken
thirty (30) days or more after the previous inventory); or
v. If Borrower remains in default beyond the applicable cure
period, if any, under any other vvritten agreement with Lender or Snap-
on (or any subsidiary or affiliate of Snap --on) or under any van lease; or
vi. If any guarantee of any of Borrower's Liabilities is tenninated
or limited fOf any reason, including, without limitation, because of
revocation or the death of any guarantor.
c. Acceleration UnoR Exniration of Cure Period.
i. Except for those items listed in preceding Sections 6,8 ~ b,
Borrower shall have thirty (30) days after written notice of default from
Lender within which to remedy any Event of Default under this
Agreement, including but not limited to, those items set forth below as
(1) through (3) of this Section 6c, and provide evidence of that remedy
to Lender. If any such default is not cured within that time, Lender may
accelerate all Loans and declare the entire unpaid amount of Borrower's
Liabilities to be immediately due and payable without further notice to
Dealer effective immediately upon expiration of that time, unless Lender
shall notifY Borrower otherWise in writing.
(1) Failure by BDrrower to comply with the proviSions of this
Agreement or any van lease or any other written agreement with
Lender (or any subsidiary or affiliate including Snap-Dn Tools
Company LLC) or tD carry out the tenns of this Agreement in good
faith; Dr
(2) Failure of BOIJower to observe or to comply with any of
the covenants set forth in this Agreement, or
(3) Failure of Borrower to submit when required any reports
pertaining to the Dealership.
ii. Notwithstanding the provisions of preceding Section 6.c.i, if
the Event of Default consists of Borrower's failure tD pay any monies
owed to Lender when such monies become due and payable, whether
pursuant to this Agreement, any Loan, or otherwise (whether upon
maturity, acceleration or otherwise), and Dealer fails to pay such monies
within ten (10) days after receiving "Mitten notice of default, then, unless
Lender shall notifY Borrower otherwise in writing, the entire amount Df
Borrower's Liabilities and all balances due under this Agreement shall
be accelerated and shall be immediately due and payable in full without
prejudice to any and all other rights and remedies Lender may have
under this Agreement or under applicable law.
7. EFFECT OF DEFAULT AND ACCELERATION ON
BORROWER'S RIGHTS.
If an Event of Default under this Agreement shall occur, then
Lender may, at its option, exercise any Dne or more of the following
rights and remedies:
a, Ifno Loan has been disbursed, Lender may tenninate and cancel
this Agreement, or if an additional Loan has not been disbursed, Lender
may refuse to disburse the additional Loan amount;
b. Lender may accelerate all Loans and declare the entire unpaid
amount of Borrower's Liabilities to be immediately due and payable;
c. Except as may Dtherwise be required by law, Lender (a) may sell
aU or any of the Collateral at public or private sale or sales upon such
tenns and conditions as Lender deems proper (and Lender may purchase
any or all of the Collateral at any such sale), and apply the net proceeds
of such sale, after deducting all costs, expenses and attorneys' fees
incll-md at any time in the collection of Borrower's Liabilities and in the
protection and sale of the Collateral or Lender's assignee or vendors
under any Van Lease Program, first to the payment of Borrower's
Liabilities and then to the payment of any other liabilities of Borrower to
Lender, and shall return any remaining proceeds to Borrower; provided
that Borrower shall remain liable for any Borrower's Liabilities or other
amounts remaining unpaid alter such application and interest thereon;
and (b) may take such other actions as it may deem appropriate or in its
interest with respect tD the Collateral including, without limitation,
(i) transferring the whole or any part of the Collateral intD its name ortbe
name Df a nominee, (ij) collecting any amounts due on the Collateral
directly from the persons obligated thereon, (iii) exercising any voting or
other rights with respect to any Collateral consisting Df securities,
(iv) taking possession and control of the Collateral and any proceeds
thereof and (v) suing or making any compromise or settlement with
respect to any of the Collateral; and
d. Lender may exercise from time to time any rights and remedies
available to it under all applicable laws, including, without limitation,
the uee and the commercial cDde of any other applicable state. In
addition to and not in limitation of all rights of ofiSet that Lender may
have under applicable law, Lender shall, upon the occurrence of an
Event of Default, have the right to appropriate and apply to the payment
of and to set-off against Borrower's Liabilities any and all balances,
credits, accounts or money of Borrower then or thereafter received or
held by or under the control of Lender. Except as may otherwise be
required by law, including with respect to notice of any sale of
Collateral, Borrower hereby waives, in connection with this Agreement
and Borrower's Liabilities. any right under or benefit of any law (whether
or not intended for its advantage or protectiDn) that would restrict or
limit the right or ability of Lender to obtain payment of Borrower's
Liabilities, including any law that would restrict or limit Lender in the
exercise of right to appropriate at any time hereafter any indebtedness
owing from Lender to Borrower and any property of Borrower in the
possession or control of Lender and apply the same toward or set-off the
same against the payment of Borrower's Liabilities. AU rights of Lender
under this Agreement are cumulative.
8. INDEMNIFICATION BY BORROWER.
Borrower shall indemnitY and hold Lender, its officers,
directors, agents and employees from and against any and all loss,
liability or damage (including attorney's fees) arising out of or related to
<t) Borrower's violation of applicable law, including. without limitation,
any law, regulation or ordinances relating to taxation, employment, the
environment or hazardous substances; and (ii) any hazardous substances
disposed of or located, released or transported from any property oWIled,
leased or used by Borrower, or (iii) any claim of my of the foregoing.
9. ARBITRATION; CERTAIN WAIVERS; MISCELLANEOUS.
a. Agreement to Arbitrate. Except as otherwise provided in
Section 9(d) below, any controversy or dispute arising out of, or
relating to the Dealership or this Agreement including, but nDt limited
to, any claim by Borrower, or any person in privity with or cla.itning
through, on behalf of or in the right of Borrower, concerning the entry
into, perfonnance under, nomenewal of, or tennination of, this
Agreement; any claim against a past or present employee. officer.
director, agent or affiliate of Lender; any claim of breach of this
Agreement or any agreement between the parties or their respective
affiliates (whether existing before or after this Agreement); and any
claims arising under state or federal laws. including any statutes, rules,
or regulations, shall be submitted to final and binding arbitration as the
sole and exclusive remedy for any such controversy or dispute. Unless
prohibited by applicable law, any claim shall be made by filing a
written demand for arbitration within one (1) year following the
conduct, act or other event or occurrence first giving rise to the claim;
otherwise, the right to any remedy shall be forever bartOO. Persons in
privity with or claiming through, on behalf of or in the right of
Borrower include, but are not limited to. spouses and other fantily
members, heirs, executors, representatives, successors and assigns.
BORROWER AND LENDER ACKNOWLEDGE AND AGREE
5
12101 LSA 03103
TIlAT, BY ENTERING INTO AN ARllITRATlON
AGREEMENT, THEY ARE WAIVING ANY RIGHT TO A
TRIAL BY JURY IN ANY COURT PROCEEDING.
b. Procedures for Arbitration. The right and duty of the parties to
this Agreement to resolve any disputes by arbitration shall be governed
exclusively by the Federal Arbitration Act, as amended, and
arbitration shall take place according to the commercial arbitration
rules of the American Arbitration Association in effect as of the date
the demand for arbittation is filed. The arbitration shall be held at the
office of the Amerit;;an Arbitration Association nearest the Snap-on
Branch Office to which Borrower was assigned prior to the dispute;
provided, however. if such office is outSide the state in which the
Borrower resides, Borrower may cause the arbitration to be held
within the Borrower's state of residence at a place mutually convenient
to the parties and the arbitrator(s). The arbitration shall proceed
before either a single arbitrator Of three arbitrators. Borrower shall
have the option to choose within 10 days after the filing of a demand
for arbitration between whether to proceed before one arbitrator or
three arbitrators. Failure to select the number of arbitrators within the
time allowed shall result in the use of a single arbitrator. If a single
arbitrator procedure \s selected, the arbitrator shall be chosen by the
striking method from a panel of neutral arbitrators provided by the
American Arbitration Association. Lender shall pay the fees and
expenses of the single arbitrator and shall also pay the filing fees and
costs charged by the American Arbitration Association to the extent
they exceed the amount the Borrower would otherwise have had to pay
to file a suit in court. If a three arbitrator procedure is selected, each
pany shall cboose one arbitrator and the two so chosen will select a
third, and failing selection of an arbitrator by either party or by the two
chosen by the parties. the arbitrator(s) shall be selected from a panel of
neutral arbitrators provided by the American Arbitration Association
and shall be chosen by the striking method. In a three arbitrator
procedure, the parties sball bear their own costs of the arbitration,
provided, however, that the fees and ex:penses of the arbitrators shall
be paid 50% by each side. Unless otherwise agreed by the parties or
ordered by the arbitrator(s), pre~hearing discovery in any arbitration is
limited to the following: (1) production of all documents that will be
introduced at the hearing; (2) production of written or recorded
statements; (3) production of all documents relied upon by experts in
the hearing; and (4) not more than two depositions per side.
c. Limitation on Damav.es. Enforceability. Each party further
agrees that. unless such a limitation is prohibited by applicable law. the
other party shall not be liable for punitive or exemplary damages and
that the arbitrator{s) shall have no authority to award the same. The
award or decision by the arbitrator(s) shall be final and binding on the
parties and may be enforced by judgment or order of a court having
subject matter jurisdiction in the state where the arbitration took place.
The parties consent to the exercise of personal jurisdiction over them
by such courts for the purpose of carrying out this provision; and they
waive any objections that they would othern<ise have to the same.
Unless prohibited by applicable law, (i) no arbitration under Section 9
shall include, by consolidation, joinder or in any other manner, any
person other than Borrower and Lender and any other person in privity
with or claiming through, in the right of or on behalf of Borrower or
Lender, unless both Borrower and Lender CQment in writing, and (ii)
no finding or stipulation of fact in any other arbitration, judicial or
similar proceeding shall be given precllliiive or collateral estoppel
effect in any arbitration hereWlder, and no conclusion of law in any
other arbitration shall be given any weight in any arbitration
hereunder, except to the extent such finding, stipulation or conclusion
may have been determined in another proceeding between BOrfwer
and Lender or any person in privity with or claiming through, in the
right of or on behalf of Borrower or Lender. In the event any
provision in this Section 9 is determined by the arbitrator(s) or a court
of competent jurisdiction to be legally invalid or unenforceable under
the law applicable in a particular case, then it is the intention of the
parties to this Agreement that such provision be deemed inoperative
and stricken from this Agreement, and that the remainder of this
Section 9, to the extent not legally invalid or unenforceable under
applicable law, be enforced as written and as if the invalid or
unenforceable provision or provisions had not been included in this
Section 9.
d. Each party shall have the right to seek from an appropriate court
provisional remedies including, but not limited to, temporary restraining
orders or preliminary injunctions before, during or after arbitration.
Neither party need await the outcome of the arbitration before seeking
provisional remedies. Seeking any such remedies shall not be deemed to
be a waiver of either party's right to compel arbitration. Any such action
shall be brought by Lender or Borrower in the county (or similar political
unit) or federal judicial district where Borrower resides, or where any
property that may be the subject of the action is located. The parties
consent to the exercise of personal jurisdiction over them by courts
located there and to the propriety of venue in such courtS for the PUl1lose
of carrying out this provision; they waive any objections that they would
otherwise have to the same; and they waive the right to have any such
action decided by ajury.
e. Waiver of Demand Etc Borrower hereby waives demand.
presentment and protest, and notice of demand, presentment, protest,
nonpayment or dishonor, with respect to the Note and Borrower's
Liabilities, and with res.pect to any notes, checks or other \'Wgotiable
instruments which may be included in the Collateral or held by Lender
with respect to which Borrower is an endorser, drawer, surety or other
responsible party, and Borrower hereby consents to any and every
renewal or extension of time that may be granted with respect to such
instruments.
f. Collection Costs. Except as provided under Section 9(b). above
Borrower shaH pay all reasonable costs of coUection of Borrower's
Liabilities. all reasonable costs in connection with the use, custody,
protection and sale of the Collateral and reasonable all costs paid or
incurred in enforcing or preserving any of under's rights hereunder Of in
connection with any transaction or proceeding in which Lender may
became concerned or involved by reason ofits interest in this Agreement
Of any of Borrower's Liabilities or any action by Borrower, in each case
including reasonable attorneys' fees, all promptly on demand of Lender
or other person incurring the same. Borrower shall also pay interest on
the foregoing amounts at the highest defauh rate provided under Section
2.a. Any such costs may be deducted by Lender from any money
received under this Agreement {lr on the Note.
g. No Waiver bv Lender Lender shall not (by act, delay, omission
or otherwise) be deemed to have waived any of its rights or remedies
hereunder, or provision hereof, unless such waiver is in writing and
signed by Lender, and any such waiver shall be effective only to the
extent specifically set forth therein; and a waiver by Lender of any right
or remedy under this Agreement on anyone occasion shall not be
construed as a bar to or waiver or any such right or remedy which
Lender would otherwise have had on any future occasion.
h. Further Acts. Borrower shall do and perform aU further acts and
deeds and shall execute and deliver to Lender all instruments,
documents, assignments, assurances or other writings that may be
necessaJ)' or desimble to Lender to carry out the tenns and intent of this
agreement or effectuate the rights of Lender hereunder.
i. Limitation of Lender's Liabilitv. Borrower agrees that Lender
shall not be liable to Borrower for (i) any failure of Lender to protect,
enforce or collect in whole or in part any of the Collateral; (ii) Lender's
notification to any Obligor of Lender's security interest in the Accounts;
(iii) Lender's directing any Obligor to pay any sums owing to Borrower
directly to Lender; and (iv) any other act or omission to act on the part of
Lender, its officers, agents or employees, except for gross negligence or
willful misconduct
j. Severability. If any provision of this Agreement or the
application thereof to any person or circumstance is held invalid or
unenforceable, the remainder of this Agreement and the application of
such provision to other ptr.:.ons or CircumstWlCes shail not be affected
thereby and the invalid or unenforceable provision of this Agreement
shall be severable in any such instance.
6
12/0 I LSA 03/03
k. Successors and Assilms. This Agreement shalt be binding upon
and inure to the benefit of the successors and assigns of Borrower and
Lender, provided that this Agreement may not be assigned by Borrower
without the prior written cOl15ent of Lender.
I. Notices. All notices or other communications hereunder shall be
in writing, shall be given either by hand delivery or by certified or
registered mail addressed to Borrower or Lender, as the case may be, at
the addresses indicated 10 the fil'3t paragraph of this Agreement, to the
attention of the person or persons indicated below the signatures to this
Agreement, and shaH be deemed given when so delivered or delivery is
refused by the addressee. Lender may, at its option, rely upon notice or
other communications received from Borrower by facsimile (FAX)
communication. Either party to this Agreement may change the name or
address to which notices shall be sent to it, by written notice to the other
party given in accordance with this Section.
m. Amendments. This Agreement may be amended from time to
time by amendments duly executed by Borrower and Lender; provided
that any amendment hereto signed by Borrower shall be binding upon
Borrower.
n. Multiole Borrowers. If this Agreement (inClUding any
counterpart hereof) is signed by more than one Borrower, the liability of
each Borrower shall be joint and several, and each reference herein to
Borrower shaJl be deemed to refer to each such Borrower. No release,
discharge or modification of the obligations of, or the Collateral
provided by, any person liable under this Agreement shall affect the
obtigations of any other person under this Agreement.
o. Entire A!!l'Cement. This Agreement and the Note and the other
documents delivered or to be delivered in conn~ction with or pursuant to
this Agreement contain all of the agreements of Lender and Borrower
with respect to the subject matter hereof.
p. Goveminll Law. This Agreement shall be construed in
accordance with the laws (without regard to the conflicts of laws
provisions) of the State Illinois in which the Lender's office is located,
except to the extent the Federal Arbitration Act governs in accordance
with Section 9.a above.
FOR CALIFORNIA RESIDENTS: This Agreement is made pursuMt to
Section 22500 of the: California Financial Code.
IMPORTANT: READ BEFORE SIGNING. THE TERMS OF
TillS AGREEMENT SHOULD BE READ CAREFULLY
BECAUSE ONLY THOSE TERMS IN WRITING ARE
ENFORCEABLE. NO OTHER TERMS OR ORAL PROMISES
NOT CONTAINED IN TillS WRITTEN CONTRACT MAY BE
LEGALLY ENFORCED. YOU MAY CHANGE THE TERMS OF
THIS AGREEMENT ONLY BY ANOTHER WRITTEN
AGREEMENT.
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be duly signed this 08/13/Z004
BORROWER-
::HNM.CR1~
,
c>
.
C/
t""'
~
PnntName ;:--\nhn C 6 -;-,-r-
Title: Vi-Pf,ickD+
7
12/01 LSA 03/03
....
PROMISSORY NOTE
$179.168.22
For value received, the undersigned ("Borrower") hereby promises to pay to the order of
Snap-on Credit LLC ("Lender") the principal sum of $179.168.22, together with interest thereon
at the rate of 10.25% per annum (calculated on the basis of a 365-day year). Principal and
interest shall be payable in 519 weekly installments consisting of principal and interest of
$551.11, commencing on 08/30/2004 , and continuing on the same day of each successive week
thereafter until Paid in Full with the last installment equal to the balance due 08/11/2014. The
entire unpaid balance, together with all accrued and unpaid interest and all other sums due
hereunder, if not sooner due or paid, shall be immediately due and payable in full on 08/11/2014.
After the occurrence of an Event of Default and for so long as such Event of Default
continues, Borrower promises to pay Lender interest on the unpaid principal amount hereof and
on all other Borrower's Liabilities at a rate per annum that is equal to the interest rate specified
above plus four percent (4%); provided, however, such rate shall not exceed the highest rate
permitted by applicable law.
This Note is issued pursuant to, secured by and is subject to all of the terms and provisions
of, the Loan and Security Agreement dated as of 08/13/2004 between Borrower and Lender, as
such Loan and Security Agreement may be amended from time to time (the "Loan and Security
Agreement), the terms and provisions of which are hereby incOlporated by reference.
A mandatory prepayment may be required in accordance with the terms of the Loan and
Security Agreement. For a statement of the terms and conditions under which the maturity of this
Note may be accelerated, reference is made to the Loan and Security Agreement. Capitalized terms
used herein and not otherwise defined herein are used with the meanings attributed to them in the
Loan and Security Agreement.
Unless otherwise prohibited by law or as permitted hereunder, Borrower shall be subject to
a prepayment premium if Borrower elects to prepay this Note in full. Except as required under
the LOAN AND SECURITY AGREEMENT for rejected Revolving Accounts and partial
prepayments of not more than one additional weekly payment per week, no partial prepayments
shall be permitted or accepted. Notwithstanding the foregoing, there shall be no prepayment
premium in the event the Borrower's Dealership is terminated, unless termination of the
1
3/0 I PN 03/03
~
Dealership occurs due to Borrower relocating and entering into another Dealership. Such
prepayment premium shall be equal to:
if the term a/this Note is five (5) years oriess, then the prepayment premium is:
(i) one (1) monthly payment if prepaid on or before the end oftenn of this Note.
Or
if the term a/this Note is more than 5 years, then the prepayment premium is:
(i) two (2) monthly payments if prepaid on or before the end of the 59th month of this
Note, or (ii) one (1) monthly payment if prepaid on or after the 60th month but on or
before the final payment on this Note.
In no event shall the aforementioned prepayment premium exceed the highest amount
allowable under applicable law. Such prepayment premium, represents the costs of prepayment
incurred by Lender. The monthly prepayment premium shall be based on the monthly equivalent
of the total number of weekly payments, which is calculated by multiplying 4.33 times the
weekly payment.
Borrower represents, warrants and covenants that (a) this Note evidences a Loan for business
and commercial purposes; (b) the proceeds of the Loan evidenced by this Note have not and will
not be used for personal, family or household purposes; (c) neither this Note nor any other
Borrower's Liabilities violates the provisions of the usury laws or any other applicable laws
governing interest rates of any state having jurisdiction over this Note, Borrower's Liabilities or the
Loan and Security Agreement; (d) neither this Note nor any other Borrower's Liabilities is subject
to Regulation Z of the Board of Governors of the Federal Reserve System.
Borrower hereby waives demand, presentment, protest, and notice of demand, nonpayment or
dishonor with respect to this Note. Borrower agrees to pay all reasonable costs of collection of this
Note and any other Borrower's Liabilities, all reasonable costs in connection with the use, custody,
protection and sale of the Collateral and all reasonable costs paid or incurred in enforcing or
preserving any of Lender's rights hereunder or in connection with any transaction or proceeding in
which Lender may become concerned or involved by reason of its interest in this Note or any other
Borrower's Liabilities or any action by Borrower, in each case including reasonable attorneys' fees,
all promptly on demand of Lender or other person incurring the same. Lender shall not (by act,
delay, omission or otherwise) be deemed to have waived any of its rights or remedies hereunder, or
any provision hereof, unless such waiver is in writing signed by Lender, and any such waiver shall
be effective only to the extent specifically set forth therein; and a waiver by Lender of any right or
remedy under this Note on anyone occasion shall not be construed as a bar to or waiver of any such
right or remedy which Lender would otherwise have had on any future occasion.
This Note shall be deemed to have been delivered and made at Gurnee, Illinois and shall be
interpreted and the rights and liabilities of the parties hereto determined in accordance with the laws
2
310 I PN 03103
.
JI
(without regard to the conflicts oflaws provisions) of the State of Illinois. Whenever possible each
provision of this Note shall be interpreted in such manner as to be effective and valid under
applicable law, but if any provision of this Note shall be prohibited by or invalid under applicable
law, such provision shall be ineffective to the extent of such prohibition or invalidity, without
invalidating the remainder of such provision or the remaining provisions of this Note. Whenever in
this Note reference is made to Lender or Borrower, such reference shall be deemed to include, as
applicable and to the extent permitted by the Loan and Security Agreement, a reference to their
respective successors and assigns, and the provisions of this Note shall be binding upon and shall
inure to the benefit of such successors and assigns, including, without limitation, a receiver, trustee
or debtor in possession of or for Borrower.
Lender may at any time transfer this Note and Lender's rights in any or all of the
Collateral. Any transfer by Lender of its rights in any Collateral shall relieve Lender from all
liability with respect to such Collateral.
BORROWER:
JOHN M. CRIST HOLDINGS,
By:
Print Name: \JCShn rn'~--r
Title: 'V, c6iden-t'
Date: 9; - I ?S--C::-W
3 3/0 I PN 03/03
"
. .'
,.
.
CONTINUING UNCONDITIONAL GUAR.ANTEE
(FOR CORPORATE BORROWER or LIMITED LIABILITY COMPANY BORROWER)
FOR VALUE RECENED, and to induce Snap-on Credit LLC, formerly Snap-on Credit
Corporation, (the "Lender") to lend money, extend credit or provide other financial accommodation,
or to oontinue any of the foregoing, to John M. Crist Holdin!!s, Inc., a Pennsvlvania cmporation
("Borrower") the stock of which or all of the membership interest in which is owned by the
Guarantor or Guarantors, and in consideration thereof, the undersigned Guarantor or Guarantors
(hereafter collectively the "Guarantor") hereby unconditionally absolutely guarantees: (A) the full
and prompt payment when due (whether at maturity or by declaration, acceleration or otherwise)
and at all times thereafter of all indebtedness, obligations and liabilities of every kind and nature
whatsoever 0 f Borrower to Lender howsoever created, a rising, acquired, held 0 r evidenced, and
whether direct or indirect, primary or secondary, absolute or contingent, joint or several, now or
hereafter existing, due or to become due; and (B) the full, prompt and faithful perfonnance and
discharge by Borrower of each and every term, condition, agreement, representation and warranty
on the part of Borrower contained in any agreement (including any amendment, modification or
supplement thereof) relating to any loan, credit or other financial accommodation from Lender to
Borrower (all such obligations referred, to in (A) and (B) above being hereinafter collectively
referred to as the "Liabilities"). The Guarantor further agrees to pay to Lender, upon demand, all
costs and expenses, including attorneys' fees, paid or incurred by Lender in collecting or obtaining
payment or performance of any Liabilities or in enforcing Lender's rights under or with respect to
any agreement or collateral or other security in connection with any Liabilities, or in enforcing this
Continuing Unconditional Guarantee (this "Guarantee").
In the event that Borrower fails to pay, perform or discharge the Liabilities when such
Liabilities become due and payable (whether by default, acceleration or otherwise), or in the event
of the death, incompetency, dissolution, insolvency or bankruptcy of Borrower or the Guarantor or
the inability of Borrower to pay its debts as they mature, or in the event of an assignment by
Borrower for the benefit of creditors, or the institution of any proceeding by or against Borrower
alleging that Borrower is insolvent or unable to pay its debts as they mature, and if such event shall
occur at a time when any of the Liabilities may not then be due and payable, the Guarantor agrees to
pay to Lender, immediately upon demand, the full amount which would be payable hereunder by
the Guarantor if all oft he Liabilities were then due and payable and to () therwise perform and
discharge such Liabilities.
This Guarantee shall be a continuing, absolute and unconditional guarantee, and shall remain
in full force and effect until written notice of its discontinuance shall be actually received by Lender,
and also until any and all of said Liabilities created before receiving such notice of discontinuance
shall be fully paid, performed or discharged. The death of the Guarantor shall not terminate this
Guarantee until written notice of such death shall have been actually received by Lender, and also
until all of said Liabilities created before receiving such notice shall be fully paid, performed or
discharged.
The liability of the Guarantor under this Guarantee shall not be affected, impaired, reduced,
released, limited or modified by any of the following (any or all of which may be done or omitted
by Lender in its sole discretion and without notice): (a) any act or failure to act by Lender with
respect to Borrower, the Liabilities or any collateral or security therefor; (b) any sale, pledge,
CG04
,
surrender, compromise, release, renewal, extension, indulgence, alteration, disposition, exchange,
change or modification in or of any of the Liabilities (including, without limitation, any renewal
note), any collateral or security for the Liabilities or any agreement or instrument relating to the
Liabilities; (c) the acceptance, rejection or release by Lender of any collateral or security for, any
obligor with respect to, or any other guarantee of, any of the Liabilities; (d) any failure, neglect or
omission by Lender to realize upon any of the Liabilities or upon any collateral or security therefor
(including any failure to protect or insure or to perfect any lien on any such collateral or security);
(e) the invalidity or unenforceability of or any irregularity with respect to any Liability; (t) the
bankruptcy or insolvency of Borrower or the application to Borrower or its estate of any provision
of the United States Bankruptcy Code or any other bankruptcy or insolvency law; (g) the extension
of additional loans, credits or other financial accommodations made to Borrower without notice to
or approval ofthe Guarantor; (h) any change in Borrower's name or any merger, acquisition or
consolidation involving Borrower; or (i) any other act or failure to act of any kind by Lender, other
than the execution and delivery by Lender to the Guarantor of a written document clearly and
expressly amending, releasing or canceling this Guarantee.
The Guarantor hereby waives: (a) notice of the acceptance ofthis Guarantee; (b) notice of the
existence, creation, extension or modification of any of the Liabilities, any collateral or other
security therefor or any agreement relating thereto; (c) demand, presentment, protest and notice of
demand, presentment, protest, nonpayment, dishonor or default, and all other notices whatsoever;
and (d) all diligence in collection or protection of or realization upon any Liabilities, any obligation
of the Guarantor hereunder or any collateral or other security for any of the foregoing.
This Guarantee is a guaranty of payment and not of collection. There shall be no conditions
to the obligation of the Guarantor to pay, perform and discharge any Liabilities upon failure by
Borrower to pay, perform or discharge such Liabilities when due (whether at maturity or by
declaration, acceleration or otherwise), and Lender shall be under no obligation to seek to obtain
payment, performance or discharge from Borrower or any other person or entity or to resort to or
seek to realize upon any collateral or any other security or property whatsoever prior to obtaining
payment, performance or discharge by the Guarantor on this Guarantee. Lender shall have the
exclusive right to determine how, when and what application shall be made of any payments and
credits on the Liabilities or under this Guarantee.
Until all of the Liabilities are fully paid, performed and discharged, the Guarantor
hereby:
(a) assigns to Lender as security for the Guarantor's obligations under this Guarantee, and
subordinates to the Liabilities, any liabilities, indebtedness and obligations of Borrower held
by or owed to the Guarantor, including any collateral or other security therefor, and
(b) and assigns to Lender, and agrees that Lender shall have, a security interest in the following
business property, assets, rights and interests of Borrower or Guarantor (as applicable),
whether now owned or existing or hereafter acquired or arising:
(1) Any collateral, including, but not limited to, any goods, equipment, chattel paper,
accounts, general intangibles, or any other assets it may now own or hereafter acquire
CG-4
-2-
which may constitute Collateral (as such term is defined in (b) (1) through (6), infra), or
proceeds of Collateral of Borrower or Guarantor (as applicable) for any amounts owed to
Lender by Borrower, and;
(2) All of Borrower's or Guarantor's (as applicable) Accounts (the term "Accounts" as used
herein includes, without limitation, all of Guarantor's accounts receivable arising out of the
sale or lease of Inventory or other goods or out of the rendering of services), whether or
not specifically assigned to Lender;
(3) All of Borrower's or Guarantor's (as applicable) Inventory (the term "Inventory" as used
herein includes, without limitation, all of Borrower's or Guarantor's goods held for sale or
lease or being processed for sale or lease, including all materials, work-in-process, finished
goods, supplies and other goods customarily classified as inventory), including Inventory at
any time in the possession of any bailee;
(4) All of Borrower's or Guarantor's (as applicable) business equipment (the "Equipment");
(5) All of Borrower's or Guarantor's (as applicable) goods, vehicles, (including Borrower's or
Guarantor's van or truck) furnishings and fixtures wherever located but only to the extent
that such items are used primarily in connection with Borrower's or Guarantor's (as
applicable) Snap-on dealership ("Dealership");
(6) All of Borrower's or Guarantor's (as applicable) cash, negotiable instruments, documents
of title, warehouse receipts, chattel paper, general intangibles, securities, leases, contract
rights, certificates of deposit, deposit accounts, cash equivalents, interest or dividends on
any of the foregoing, insurance claims, patents, trademarks, good will and other property
of any kind or description, wherever now or hereafter located, but only to the extent that
such items are used primarily in connection with Borrower's or Guarantor's (as applicable)
Dealership; and
Without limiting the foregoing, all substitutions, renewals, improvements and
replacements of, and additions and accessions to, the foregoing, and all products and proceeds
of the foregoing, including, without limitation, all of the proceeds in any form of Borrower's
or Guarantor's (as applicable) Accounts and Inventory, whether specifically assigned to Lender
or not. Notwithstanding the foregoing, if Guarantor is an individual, Guarantor's residence,
personal, family or household goods and assets not related to or used primarily in connection
with Borrower's or Guarantor's (as applicable) Snap-on Dealership are specifically excluded
from the definition of "Collateral." The terms used herein to identify the Collateral shall have
the respective meanings assigned to such terms as of the date hereof in the Uniform
Commercial Code, as amended, in effect in the state listed in the introductory paragraph as
Borrower's address (the "UCC"). The security interest granted hereby shall continue to attach
to the Collateral notwithstanding any sale, exchange or other disposition of the Collateral by
Borrower or Guarantor (as applicable), except for Inventory sold in the ordinary course of
business. The security interest herein granted is to secure the payment of all of Guarantor's
obligations to guarantee payment andlor performance to Lender of all of the Liabilities; all
costs and expenses, including attorneys' fees, paid or incurred by Lender in collecting or
obtaining payment or performance of any Liabilities or in enforcing Lender's rights under or
with respect to any agreement or collateral or other security in connection with any Liabilities,
or in enforcing this Guarantee and the performance of all of Guarantor's obligations to Lender
CG-4
-3-
hereunder; and any and all other obligations of Borrower or Guarantor to Lender of every kind
and description, direct or indirect, absolute or contingent, due or about to become due, now
existing or hereafter arising. And;
(c) waives any rights that the Guarantor may have against Borrower or with respect to the
Liabilities or any collateral or other security therefor by reason of anyone or more payments
or acts in compliance with the obligations of the Guarantor under this Guarantee.
Lender may, without notice, sell, assign or transfer all or any of the Liabilities and, in such
event, each and every immediate and successive assignee, transferee or holder of, or any participant
in, any of the Liabilities shall have the rights, powers and benefits granted to Lender in this
Guarantee, including the right to enforce this Guarantee by suit or otherwise.
In the event that a claim (a "repayment claim") shall be made upon Lender at anytime for
repayment of any amount received by Lender in payment of any of the Liabilities, whether received
from Borrower or the Guarantor, or received as the proceeds of collateral, or otherwise, by reason
of: (a) any judgment, decree or order of any court or administrative body having jurisdiction over
Lender or any of its property; or (b) any settlement or compromise of any such repayment claim
effected by Lender with the claimant (including Borrower), the Guarantor shall remain liable to
Lender for any amount repaid pursuant thereto to the same extent as if such amount had never
originally been received by Lender, notwithstanding any termination hereof or the cancellation of
any note or other instrument evidencing any of the Liabilities.
Except as otherwise provided below, any controversy or dispute arising out of, or relating
to tbis Guarantee including, but not limited to, any claim by Guarantor, or any person in privity
with or claiming through, on behalf of or in the right of Guarantor, concerning the entry into,
performance under, or tennination of, tbis Guarantee; any claim against a past or present
employee, officer, director, agent or affiliate of Lender; any claim of breach of this Guarantee or
any agreement between the parties or their respective affiliates (whether existing before or after
this Guarantee); and any claims arising under state or federal laws, including any statutes, rules,
or regulations, shall be submitted to final and binding arbitration as the sole and exclusive
remedy for any such controversy or dispute. Unless probibited by applicable law, any claim
shall be made by filing a written demand for arbitration within one (1) year following the
conduct, act or other event or occurrence first giving rise to the claim; otherwise, the right to any
remedy shall be forever barred. Persons in privity with or claiming through, on behalf of or in
the right of Guarantor include, but are not limited to, spouses and other family members, heirs,
executors, representatives, successors and assigns. GUARANTOR AND LENDER
ACKNOWLEDGE AND AGREE THAT, BY ENTERlNG INTO AN ARBITRATION
AGREEMENT, THEY ARE WANING ANY RIGHT TO A TRIAL BY JURY IN ANY
COURT PROCEEDING.
The right and duty of the parties to this Guarantee to resolve any disputes by arbitration
shall be governed exclusively by the Federal Arbitration Act, as amended, and arbitration shall
take place according to the commercial arbitration rules of the American Arbitration Association
in effect as ofthe date the demand for arbitration is filed. The arbitration shall be held at the
CG-4
-4-
,
office of the American Arbitration Association nearest the Snap-on Branch Office to which
Guarantor was assigned prior to the dispute; provided, however, if such office is outside the state
in which the Guarantor resides, Guarantor may cause the arbitration to be held within the
Guarantor's state of residence at a place mutually convenient to the parties and the arbitrator(s).
The arbitration shall proceed before either a single arbitrator or three arbitrators. Guarantor shall
have the option to choose within 10 days after the filing of a demand for arbitration between
whether to proceed before one arbitrator or three arbitrators. Failure to select the number of
arbitrators within the time allowed shall result in the use of a single arbitrator. If a single
arbitrator procedure is selected, the arbitrator shall be chosen by the striking method from a panel
of neutral arbitrators provided by the American Arbitration Association. Lender shall pay the
fees and expenses of the single arbitrator and shall also pay the filing fees and costs charged by
the American Arbitration Association to the extent they exceed the amount the Guarantor would
otherwise have had to pay to file a suit in court. If a three arbitrator procedure is selected, each
party shall choose one arbitrator and the two so chosen will select a third, and failing selection of
an arbitrator by either party or by the two chosen by the parties, the arbitrator(s) shall be selected
from a panel of neutral arbitrators provided by the American Arbitration Association and shall be
chosen by the striking method. In a three arbitrator procedure, the parties shall bear their own
costs ofthe arbitration, provided, however, that the fees and expenses of the arbitrators shall be
paid 50% by each side. Unless otherwise agreed by the parties or ordered by the arbitrator( s),
pre-hearing discovery in any arbitration is limited to the following: (1) production of all
documents that will be introduced at the hearing; (2) production of written or recorded
statements; (3) production of all documents relied upon by experts in the hearing; and (4) not
more than two depositions per side.
Each party further agrees that, unless such a limitation is prohibited by applicable law, the
other party shall not be liable for punitive or exemplary damages and that the arbitrator( s) shall
have no authority to award the same. The award or decision by the arbitrator(s) shall be final
and binding on the parties and may be enforced by judgment or order of a court having subject
matterjurisdiction in the state where the arbitration took place. The parties consent to the
exercise of personal jurisdiction over them by such courts for the purpose of carrying out this
provision; and they waive any objections that they would otherwise have to the same. Unless
prohibited by applicable law, (i) no arbitration under this Guarantee shall include, by
consolidation, joinder or in any other manner, any person other than Guarantor and Lender and
any other person in privity with or claiming through, in the right of or on behalf of Guarantor or
Lender, unless both Guarantor and Lender consent in writing, and (ii) no finding or stipulation of
fact in any other arbitration, judicial or similar proceeding shall be given preclusive or collateral
estoppel effect in any arbitration hereunder, and no conclusion of law in any other arbitration
shall be given any weight in any arbitration hereunder, except to the extent such finding,
stipulation or conclusion may have been determined in another proceeding between Guarantor
and Lender or any person in privity with or claiming through, in the right of or on behalf of
Guarantor or Lender. In the event any provision in this Guarantee is determined by the
arbitrator( s) or a court of competent jurisdiction to be legally invalid or unenforceable under the
law applicable in a particular case, then it is the intention of the parties to this Guarantee that
such provision be deemed inoperative and stricken from this Guarantee, and that the remainder
ofthis Guarantee, to the extent not legally invalid or unenforceable under applicable law, be
CG-4
-5-
"
enforced as written and as if the invalid or unenforceable provision or provisions had not been
included in this Guarantee.
Each party shall have the right to seek from an appropriate court provisional remedies
including, but not limited to, temporary restraining orders or preliminary injunctions before,
during or after arbitration, Neither party need await the outcome of the arbitration before
seeking provisional remedies, Seeking any such remedies shall not be deemed to be a waiver of
either party's right to compel arbitration. Any such action shall be brought by Lender or
Guarantor in the county (or similar political unit) or federal judicial district where Guarantor
resides, or where any property that may be the subject of the action is located. The parties
consent to the exercise of personal jurisdiction over them by courts located there and to the
propriety of venue in such courts for the purpose of carrying out this provision; they waive any
objections that they would otherwise have to the same; and they waive the right to have any such
action decided by a jury.
This Guarantee shall be deemed to have been delivered and made and shall be interpreted
and the rights and liabilities of the parties hereto determined in accordance with the laws
(without regard to the conflicts oflaws provisions) of the State of the Borrower's Regional
Customer Service Center in which the Lender's office is located, except to the extent the Federal
Arbitration Act governs the provisions of any arbitration agreement herein. Whenever possible
each provision of this Guarantee shall be interpreted in such manner as to be effective and valid
under applicable law, but if any provision of this Guarantee shall be prohibited by or invalid
under applicable law, such provision shall be ineffective to the extent of such prohibition or
invalidity, without invalidating the remainder of such provision or the remaining provisions of
this Guarantee, This Guarantee shall be binding upon the Guarantor and upon the heirs, legal
representatives and successors of the Guarantor, and shall inure to the benefit of Lender, its legal
representatives, successors and assigns.
If this Guarantee (including any counterpart hereof) is signed by more than one
Guarantor, the liability of each Guarantor shall be joint and several, and each reference herein to
the Guarantor shall be deemed to refer to each such Guarantor. In furtherance and not in
limitation of the rights and remedies of Lender hereunder or at law, Lender may proceed under
this Guarantee against any or all Guarantors in its absolute and sole discretion for any Liabilities
or other obligations of Borrower arising hereunder. No release, discharge or modification of the
obligations of, or the collateral provided by, any party liable on this Guarantee shall affect the
obligations of any other party on this Guarantee.
CG4
-6-
,
", ' ~
'.'
.
IN WITNE~ qREOF, t~dersigned has caused this Guarantee to be
executed delivered this day of -J Lt l , 20..12.-. t '
CG-4
-7-
'" gg
\: ~~
;;; .....J ('"l~
0 0;-0;-
'"
,..
~~ 00
tl
'"
",,,,
~U~<<
';:l~r-:-1'-
~..J~;S
",'"
~~ ""
....
0< rr:,f,,\
~~ --
",,,,
;."
z< ",,,,
-'"
"0
~v ",.",
"'<", ~~
';"'- ::^::;
z'"
;;;
:I 00
'"
-'" ~
~~ ~
.. Q< 00
~ '; ':l 1"
Q ....
Z "l
'" '"
I.:i ~ ,,~
~ "'''' '"
... ';'" '"
:A "-
l < ~ \;l
~ i
~
~
..
<:
>J -'
::l :5~
" vO
Cl~"
"- '" ='" g
~" ",,,, ~,
.... <~
~ " v<
S~ ",..
~ ~~
t/) In
Q
Q .... ='" ~
r! ~
~ ",," ~
'" ~~ - <~ '"
.... ~ '"
Q oc: ",-' 00 v<
'" ~tl
.... "" ~ ';~ ".
~ fi\ \.) "'''
~ '"
p: ~'" '"
Cl -<: ",,,, ~
~
r- oJ ~'" 'Q~ o-v r-'
Z ..l o-t: :e "'~ ~
~ u "'i '" UZ~ ';
'" ~ ~o~ ..
oJ 0", z'Qo c. g
oJ U $.~ 8~= ~'"
~ - 0& M
0 ,..
-", ~'"
1;; ';;> :<'V ~ " ~~
Z ~~ " '"'"
.... '"
'" "'- v"
'" "''' ~ Z:<. "'
'"
0 ~'" .. ;;;- ~
"" o-\::. a--' '" '"
",e ~ ;.t
~E: ~j ::;
0 ~ M
~ ",0 ::::
';V
-' ~
<", '" \:,.. 0
"'- '" "'i 0 0
0:<. '" 0 '"
'"- 00
,..", ~ e-' v
~" ~
'"
'" :,; v'" '"
~ OV "" v ::;
'" ,.~ .. ~
0- " ~. M
"- "" ~~ ~ ::::
. d '"
0 ~'" ';
~
~11~ ~
O'e~ Cl '"'"
..,"'P: ~ ~;.t M
~oJ '" ::; VV "" ..
~Jz ~ -~ .. ~~
.... '" ~.
;!a~O ~~ 0- '" 0-,
'" ~, ~< '"
,,~t-- P:"l '; ~ -'"
U"'''' ~oc:
oJ Cl
:I: "''''
t/) ;"l ~
'" es ~... ~
'"
Q -<: -<:~ ~ ....
'" ~
Cl ~ :I:c::. ~ ..... ~ ~
.. .. ~ ... "l
; .... S< oc:
P: :I: l>; ..... >v: ~ ~
t.:i U "- >v: ~
~ Z Cl 2
-<: Cl ~ ~ ol ~ 0
oJ U v
Cl ..l i:Q 0
oJ
....
'"
.;; --
u", "'"
",,,,
.", ~~
"'''
~~ ~~
;;;",
"'''
"",. ~~
~~ ~~
........~ t-n
tw ~~
<z
~'" ~
0
0
~~ s
<'" -
-' ;;;
;. ~~
,..~ ~~(
~'" ~~
-,,,, ~~
z --
~-' --
c,M
#~ ~~
~ ~~
~
~<.:> MM
~~
"'~ ..",
:; N~
"'<.:> ....
~ ~J';"
'"~
'" ....
99 00
~~
~~ f"'i'M'
5<.:> :::::
~~ "''''
MN
..
-
'2'" 0
0
<~ r:;
In'" ~
"'
EXHIBIT
~
ti'
;;;
"l
>'
l-'
:z;-
:1:5
Ow
-.,..J
1;;<
olb
Ul-'
VERIFICATION
The undersigned does hereby verify subject to the penalties of 18 PA. C.S. 4r04 relating
to unsworn falsifications to authorities, that he/she is 150'1/\ L. W l~~
(NAME)
p ~~O ~WA~ev
(TITLE)
of
S~-M G-eJd-
(COMPANY)
, plaintiff herein, that
he/she is duly authorized to make this verification, and that the facts set forth in the foregoing
Complaint are true and correct to the best of his/her knowledge, information and belief.
" FFI AL"
Stephanie L. Bruebach
Notary Public, Stale of Illinois
My Commission Exp. 11/01/2009
J'().,t~::{ Y6{'~ciL().t'{"'-
(- j U -0("
d~Cl-O
/ RE)
() ~ - 8
,
1J <n ::.,.
r::- 111 ,
~ l\:-
tn
"'0 CJ ,:,.';
-
-J ~ ~
~ ~
l-)
}.) -
J:: -_.~
...c ..() ~
-r-
.
SHERIFF'S RETURN - REGULAR
.,
CASE NO: 2006-00433 P
COMMONWEALTH OF PENNSYLVANIA:
COUNTY OF CUMBERLAND
SNAP-ON CREDIT LLC
VS
CRIST JOHN M ET AL
JASON VIORAL
Sheriff or Deputy Sheriff of
Cumberland County,Pennsylvania, who being duly sworn according to law,
says, the within COMPLAINT - REPLEVIN
was served upon
CRIST JOHN M
the
DEFENDANT
, at 1830:00 HOURS, on the 24th day of January ,2006
at 1201 CROSS CREEK DRIVE
MECHANICSBURG, PA 17050
by handing to
JOHN CRIST
a true and attested copy of COMPLAINT - REPLEVIN
together with
and at the same time directing His attention to the contents thereof.
Sheriff's Costs:
Docketing
Service
Affidavit
Surcharge
So Answers:
18.00
10.56
.00
10.00
.00
38.56
~~G).:'/ . //~
-:? /.~~","";'d<..., ~
7 "/
R. Thomas Kline
01/25/2006
WELTMAN WEINBERG REIS
Sworn and
Subscribed to
, i-A
)0/ day of
before
By:
~"%f
me this
,
SHERIFF'S RETURN - REGULAR
'I
CASE NO: 2006-00433 P
COMMONWEALTH OF PENNSYLVANIA:
COUNTY OF CUMBERLAND
SNAP-ON CREDIT LLC
VS
CRIST JOHN M ET AL
JASON VIORAL
, Sheriff or Deputy Sheriff of
Cumberland County, Pennsylvania, who being duly sworn according to law,
says, the within COMPLAINT - REPLEVIN
was served upon
JOHN M CRIST HOLDINGS INC
the
DEFENDANT
, at 1830:00 HOURS, on the 24th day of January
2006
at 1201 CROSS CREEK DRIVE
MECHANICSBURG, PA 17050
by handing to
JOHN CRIST
ADULT IN CHARGE
a true and attested copy of COMPLAINT - REPLEVIN
together with
and at the same time directing His attention to the contents thereof.
Sheriff's Costs:
Docketing
Service
Affidavit
Surcharge
So Answers:
6.00
.00
.00
10.00
.00
16.00
-,-;..~.::;.;'-"
",--
,
,..1':,.":/'
.".,. .
.-,--~<~_.,,'::.:~~
R. Thomas Kline
01/25/2006
WELTMAN WEINBERG REIS
Sworn and Subscribed to before
By:
9pu~riff
me this 501/,
day of
A.D.
IN TIlE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA
CIVIL DIVISION
SNAP-ON CREOlT, LLC
Plaintiff
No. 06-433 Civil Term
vs.
PRAECIPE FOR DEFAULT Jl.JDGMENT
JOHN M. CRIST and JOHN M.
CRIST HOLDINGS, INC.
Defendant
FILED ON BEHALF OF
Plaintiff
COUNSEL OF RECORD OF
THIS PARTY:
William T. Molczan, Esquire
PA.I.D.#47437
WELTMAN, WEINBERG & REIS CO., L.P.A.
2718 Koppers Building
436 Seventh Avenue
Pittsburgh, P A 15219
(412)434-7955
WWR#04963618
\
IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA
CIVIL DIV]SION
SNAP-ON CREDIT, LLC
Plaintiff
vs.
Civil Action No. 06-433 Civil Term
JOHN M. CRIST and JOHN M.
CRIST IIOLDINGS, INC.
Defendant
PRAECIPE FOR DEFAULT JUDGMENT
TO THE PROTHONOTARY:
Kindly enter Judgment against the Defendants, John M. Crist and John M. Crist Holdings, Inc., above
named. in the default of an Answer as follows:
For possession of the equipment, more particularly identified in the attached exhibit.
I hereby certify that appropriate Notices of Default, as attached have been mailed in accordance with PA
R.C.P. 237.1 on the dates indicated on the Notices.
WELTMAN, WEINBERG & REIS CO., L.P.A.
i /. j // h ~--
By: "VI ({..
William T. Molczal1, Esq
PA. 1.0.#47437
WELTMAN, WEINBERG & RE]S CO., L.P.A.
2718 Koppers Building
436 Seventh Avenue
Pittsburgh, PA 15219
(412) 434-7955
WWR#04963618
PlaintiWs address is: c/o Weltman, Weinberg & Rcis 27] 8 Koppers Building, 436 7'h Avenue, Pittsburgh, PA 15219
And that the last known address of the Defendants arc: 1201 Cross Creek Drive, Mechanicsburg, P A 17050
IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA
ClVIL DIVISION
SNAP-ON CREDIT, LLC
Plaintiff
06-433 CIVIL TERM
JOHN M CRIST and JOHN M CRIST HOLDINGS INC
Defendants
IMPORTANT NOTICE
TO:
John M Crist
120 I Cross Creek Drive
Mechanicsburg,Pa 17050
Date of Notice:
~\\(A~
YOU ARE IN DEFAULT BECAUSE YOU HAVE FAILED TO ENTER A WRITTEN APPEARANCE
PERSONALLY OR BY ATTORNEY AND FILE IN WRITING WITH THE COURT YOUR DEFENSES OR OBJECTIONS
TO THE CLAIMS SET FORTI'I AGAINST YOU. UNLESS YOU ACT WITHIN TEN DA YS FROM THE DATE OF THIS
NOTICE. A JUDGMENT MAY BE ENTERED AGAINST YOU WITHOUT A HEARING AND YOU MAY LOSE YOUR
PROPERTY OR OTHER IMPORTANT RlGHTS. YOU SHOULD TAKE THIS NOTICE TO A LAWYER AT ONCE. IF
YOU DO NOT HAVE A LA WYER OR CANNOT AFFORD ONE, GO TO OR TELEPHONE THE FOLLOWING OFFICE
TO FIND OUT WHERE YOU CAN GET LEGAL HELP.
Cumberland County Bar Association
32 South Bedford Street
Carlisle, PA 17013
(717) 249-3166
By:
William T. MoIczan, Esq . e
PA I.D. #47437
WELTMAN, WEINBERG & REIS CO., L.PA
2718 Koppers Building
436 Seventh A venue
Pittsburgh, PA 15219
(412) 434-7955
WWR #04963618
IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLV ANIA
CIVIL DIVISION
SNAP-ON CREDIT, LLC
Plaintiff
06-433 CIVIL TERM
JOHN M CRIST and JOHN M CRIST HOLDINGS INC
Defendants
IMPORTANT NOTICE
TO:
John M Crist Holdings Inc
120 I Cross Creek Drive
Mechanicsburg.Pa 17050
Date of Notice: <Q \\(Aaooc.
YOU ARE IN DEFAULT BECAUSE YOU HAVE FAILED TO ENTER A WRITTEN APPEARANCE
PERSONALLY OR BY ATTORNEY AND FILE IN WRITlNG WITH THE COURT YOUR DEFENSES OR OBJECTIONS
TO THE CLAIMS SET FORTH AGAINST YOU. UNLESS YOU ACT WITHIN TEN DA YS FROM THE DATE OF THIS
NOTICE, A JUDGMENT MAY BE ENTERED AGAINST YOU WITHOUT A HEARING AND YOU MAY LOSE YOUR
PROPERTY OR OTHER IMPORTANT RIGHTS. YOU SHOULD TAKE THIS NOTICE TO A LAWYER AT ONCE. IF
YOU DO NOT HA VE A LA WYER OR CANNOT AFFORD ONE, GO TO OR TELEPHONE THE FOLLOWING OFFICE
TO FIND OUT WHERE YOU CAN GET LEGAL HELP.
Cumberland County Bar Association
32 South Bedford Street
Carlisle, PA 17013
(717) 249-3166
WELTMA{;L' WINBERG & REIS CO.. L.P.A.
i / /I"
By: Will . ~
William T. Molezan, Esq e
PA I.D. #47437
WELTMAN, WEINBERG & REIS CO.. L.P.A.
2718 Koppers Building
436 Seventh Avenue
Pittsburgh, P A 15219
(412)434-7955
WWR #0496361 8
VERIFICATION
The undersigned does hereby verify subject to the penalties of 18 Pa.C.S. Section 4904 relating to unsworn
falsification to authorities, that the parties against whom Judgment is to be entered according to the Praecipe
attached are not members ofthe Armed Forces of the United States or any other military or non-military service
covered by the Soldiers and Sailors Civil Relief Act of 1940. The undersigned further states that the information is
true and correct to the best of the undersigned's knowledge and belief and upon information received from others.
WELTMAN, WEINBERG & REIS CO.. L.PA
I I,. //~
By: V}/., j ~ M/},
William T. Molcz n, Es
PA.1.0.#47437
WELTMAN, WEINBERG & REIS CO.. L.P.A.
2718 Koppers Building
436 Seventh Avenue
Pittshurgh, P A 15219
(412) 434-7955
WWR#04963618
IN THE COMMON PLEAS COURT OF CUMBERLAND COUNTY, PENNSYLVANIA
CIVIL DIVISION
SNAP-ON CREDIT, LLC
Case no: 06-433 Civil Term
Plaintiff
NON-MILITARY AFFIDAVIT
vs.
JOHN M. CRIST and JOHN M. CRIST HOLDINS, INC.
Defendants
The undersigned, who first being duly sworn, according to law, deposes and states as follows:
That he/she is the duly authorized agent of the Plaintiff in the
within matter.
Affiant further states that the within Affidavit is made pursuant to and in accordance with the
Servicemembers' Civil Relief Act (SCRA), 50 U.S.C. App. ~ 521.
Affiant further states that based upon investigation it is the affiant's beliefthat the Defendant, JOHN M.
CRIST and JOHN M. CRIST HOLDINS, INC. is not in the military service.
Affiant further states that this belief is supported by the attached certificate Patti Jo Bryner is not in the
military service.
Further Affiant sayeth naught.
SWORN TO AND SUBSCRIBED in my presence this _ day
of
NOTARY PUBLIC
This law firm is a debt collector attempting to collect this debt for our client and any information obtained will be
used for that purpose.
t t::J
'}- 1!-
~ ~
~ ~
~ cq
[:
D -:t
~~
~ -J
~ r
~~
-~
(....
~-_.
c::.--'
-,
L
..---------
IN HIE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA
CIVIL DIVISION
SNAP-ON CREDIT. LLC
Plaintiff
vs.
Civil Action No. 06-433 Civil Term
JOHN M. CRIST and JOliN M.
CRIST HOLDINGS, INC.
Defendant
NOTICE OF JUDGMENT OR ORDER
TO: () Plaintiff
(xx) Defendant
( ) Garnishee
You are hereby notified that the
following Order or Judgment was
entered against you on (Y?'::Jn r j 10, d-"OOb
(xx) Assumpsit Judgment for possession of the equipment more
particularly identified in the attached exhibit.
() Trespass Judgment in the amount
of $ plus costs.
() Ifnot satisfied within sixty (60)
days, your motor vehicle operator's license and/or registration will be
suspended by the Department of Transportation, Bureau of Traffic Safety.
Harrisburg, P A.
(xx) Entry of Judgment of
() Court Order
() Non-Pros
() Confession
(xx) Default
() Verdict
() Arbitration
Award
Prothonotary
John M Crist
120 I Cross Creek Drive
Mechanicsburg,Pa 17050
B, ~J>~
PROTHC OT AR . DE TY)
IN Tl IE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA
CIVIL DIVISION
SNAP-ON CREDIT, LLC
Plaintiff
vs.
Civil Action No, 06-433 Civil Term
JO\lN M. CRIST and JO\lN M.
CRIST HOLDINGS, INC.
Defendant
NOTICE OF JUDGMENT OR ORDER
TO: () Plaintiff
(xx) Defendant
( ) Garn ishee
You are hereby notified that the
following Order or Judgment was
entered against you on (Yl';1/J" 1-.. I 0 I ).DDfc,
(xx) Assumpsit Judgment for possession of the equipment more
particularly identified in the attached exhibit.
( ) Trespass Judgment in the amount
of $ plus costs.
( ) Ifnot satisfied within sixty (60)
days, your motor vehicle operator's license and/or registration will be
suspended by the Department of Transportation, Bureau of Traffic Safety,
\larrisburg, PA.
(xx) Entry of Judgment of
() Court Order
( ) Non-Pros
( ) Confession
(xx) Default
( ) Verdict
() Arbitration
Award
Prothonotary
John M Crist \loldings Inc
120 I Cross Creek Drive
Mechanicsburg,Pa 17050
Y)
,
IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA
CIVIL DIVISION
SNAP-ON CREDIT, LLC
Plaintiff
No. 06-433 Civil Term
vs.
PRAECIPE FOR SATISFACTION OF
,IUDGMENT
JOHN M. CRIST i1aJd/b/a JOHN M.
CRIST HOLDINGS, INC.
Defendants
FILED ON BEHALF OF
Plaintiff
COUNSEL OF RECORD OF
THIS PARTY:
James C. Warmbrodt
PA I.D #42524
WELTMAN, WEINBERG & REIS CO., L.PA
2718 Koppers Building
436 Seventh Avenue
Pittsburgh, P A 15219
(412) 434-7955
WWR No. 0496361g
.
IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA
CIVIL DIVISION
SNAP-ON CREDIT, LLC
Plainti!'!'
vs,
Civil Action No, 06-433 Civil Term
JOHN M. CRIST i/a1d/b/a JOHN M.
CRIST HOLDINGS. INC.
Defendants
PRAECIPE FOR SATISFACTION OF JUDGMENT
At the request of the undersigned attorneys for the Plaintiff. you are directed to satisfy the above-captioned
Judgment.
WELTMAN. WEINBERG & REIS CO.. L.P.A.
Sworn to and subscribed
bel' re me this :) 0
y f March. 06 ' r
7t
.":'~,;"c0':':'\~~~(-'si;,,;iJ'L""J:'.;::...
\ Heidi ,J. Kei!y, Notuy eubiic "\
IL Cit; O~ Pitt., 2,bU,.gl'.i. A\lt~~h~.ny CO~ill~l i
tJiV Ccrnnv"';wn EXP'(E,'" f\JW_ 4" ()'.:'- .
tk:r,)\~~;,--;-::,~~:_~,:~:,-;;::~,;'~~;G~~-';~"~;J"~(.~
WWR No. 04963618
,
c:i