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HomeMy WebLinkAbout06-3235KEEFER WOOD ALLEN & RAHAL, LLP 210 WALNUT STREET PO BOX 11963 HARRISBURG, PA 17108-1963 MANUFACTURERS AND TRADERS TRUST COMPANY Plaintiff V. LUCKENBILL BROTHERS PAVING & EXCAVATING, INC. Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW NO. Ot. -32,39 (21 ul IL (EJLr+-? NOTICE YOU HAVE BEEN SUED IN COURT. If you wish to defend against the claims set forth in the following pages, you must take action within twenty (20) days afterthis Complaint and notice are served, by entering a written appearance personally or by attorney and filing in writing with the Court your defenses or objections to the claims set forth against you. You are warned that if you fail to do so the case may proceed without you and a judgment may be entered against you by the Court without further notice for any money claimed in the Complaint or for any other claim or relief requested by the Plaintiff. You may lose money or property or other rights important to you. YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER OR CANNOT AFFORD ONE, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW TO FIND OUT WHERE YOU CAN GET LEGAL HELP. CUMBERLAND COUNTY BAR ASSOCIATION 32 SOUTH BEDFORD STREET Carlisle, PA 17013 Telephone: (800) 990-9108 KEEFER,; WOOD, ALL`ElN & RAHAL Date: June 5, 2006 By: C`?"'??`?I CI Eugene 'E. Pe insky, Jr. Attorney I.D. #23702 210 Walnut Street P.O. Box 11963 Harrisburg, PA 17108-1963 (717) 255-8051 Attorneys for Plaintiff KEEFER WOOD ALLEN & RAHAL, LLP 210 WALNUT STREET PO BOX 11963 HARRISBURG, PA 17108-1963 MANUFACTURERS AND TRADERS IN THE COURT OF COMMON PLEAS OF TRUST COMPANY CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff CIVIL ACTION - LAW V. NO. LUCKENBILL BROTHERS PAVING & EXCAVATING, INC. Defendant NOTICIA Le han demandado a usted en la corte. Si usted quiere defenderse de estas demandas expuestas en las paginas siguientes, usted tiene viente (20) dias de plazo al partir de la fecha de la demanda y la notificacion. Usted debe presentar una apariencia escrita o en persona o por abogado y archivar en la corte en forma escrita sus defensas o sus objeciones a las demandas en contra de su persona. Sea avisado qua si usted no Be defiende, la corte tomara medidas y puede entrar una orden contra usted sin previo aviso o notificacion y por cualquier queja o alivio que es pedido en la peticion de demands. Usted puede perder dinero o sus propiedades o otros derechos importantes para usted. LLEVE ESTA DEMANDAA UN ABODAGO INMEDIATAMENTE. SI NO TIENE ABOGADO O SI NO TIENE EL DINERO SUFICIENTE DE PAGAR TAL SERVICIO, VAYA EN PERSONA O LLAME POR TELEFONO A LA OFICINA CUYA DIRECCION SE ENCUENTRA ESCRITAABAJO PARA AVERIGUAR DONDE SE PUEDE CONSEGUIR ASISTENCIA LEGAL. CUMBERLAND COUNTY BAR ASSOCIATION 32 SOUTH BEDFORD STREET Carlisle, PA 17013 Telephone: (800) 990-9108 KEEFER, WOOD, ALLEN & RAHAL Date: June 5, 2006 By: Eugene E. Pepinsky, Jr. Attorney I.D. #23702 210 Walnut Street P.O. Box 11963 Harrisburg, PA 17108-1963 (717) 255-8051 Attorneys for Plaintiff KEEFER WOOD ALLEN & RAHAL, LLP 210 WALNUT STREET PO BOX 11963 HARRISBURG, PA 17108-1963 MANUFACTURERS AND TRADERS TRUST COMPANY Plaintiff V. LUCKENBILL BROTHERS PAVING & EXCAVATING. INC. Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW NO. D/a - 3?3s l rv?C ?riL COMPLAINT 1. Plaintiff Manufacturers and Traders Trust Company is a New York banking corporation, with an address at 213 Market Street, Harrisburg, Pennsylvania 17101. 2. Defendant Luckenbill Brothers Paving & Excavating, Inc. is a Pennsylvania corporation, whose address is 631 S. Route 183, Schuylkill Haven, Pennsylvania 17972-9459. 3. At all times relevant, Plaintiff has maintained a perfected security interest in all business assets of Shaull Equipment and Supply Company (the "Debtor"). True and correct copies of Bank's Security Agreement and Financing Statement UCC are attached hereto and marked Exhibit A. 4. On or about March 6, 2006, Defendant purportedly purchased a Paver Ap1050 s/n IJG00181 from Debtor for $5,300. 5. Plaintiff is informed, believes and, therefore, avers that the Paver has a value of approximately $20,000. 6. Plaintiff is informed, believes and, therefore, avers that the sale was not in the ordinary course of Debtor's business. 7. By reason of the foregoing, Defendant acquired the Paver subject to Plaintiffs perfected security interest. KEEFER WOOD ALLEN & RAHAL, LLP 210 WALNUT STREET PO BOX 11963 HARRISBURG, PA 17108-1963 Despite Plaintiffs repeated demands, Defendant has failed and refused to return the Paver to Plaintiff or pay to Plaintiff the true value thereof. Defendant, therefore, has converted the Paver in violation of Plaintiffs rights. WHEREFORE, Plaintiff demands judgment against Defendant in the amount of $20,000 plus interest and costs of suit. KEEFER, WOOD, ALLEN & RAHAL Date: June 5, 2006 By: Eugene E. Pe insky, Jr. Attorney I.D. #23702 210 Walnut Street P.O. Box 11963 Harrisburg, PA 17108-1963 (717) 255-8051 Attorneys for Plaintiff VERIFICATION The undersigned, Kenneth L. Milliken, hereby verifies and states that: 1. He is Vice President of Manufacturers and Traders Trust Company; 2. He is authorized to make this Verification on its behalf; 3. The facts set forth in the foregoing Complaint are true and correct to the best of her knowledge, information and belief; and 4. He is aware that false statements herein are made subject to the penalties of 18 Pa. C.S. § 4904, relating to unsworn falsification to authorities. Kenneth L. Milliken Dated: June 5, 2006 M&T Bank Manufacturers and Traders Trust Company GENERAL SECURITY AGREEMENT Pennsylvania Debtor: SHAULL EQUIPMENT AND SUPPLY COMPANY, a corporation organized under the laws of Pennsylvania Organizational Identification Number (if any): 326574 Chief executive office/residence: 100 Market Street, Lemoyne, Pennsylvania 17043-0612 Secured Party: MANUFACTURERS AND TRADERS TRUST COMPANY, a New York banking corporation with banking offices at One M&T Plaza. Buffalo, New York 14240 Attention: Office of General Counsel For good and valuable consideration, the receipt and sufficiency of which is acknowledged, and intending to be legally bound, Debtor agrees with Secured Party as follows: 1. Security Interests 1.1 Grant. As security for the prompt and complete payment and performance when due of all of the Obligations, Debtor does hereby grant to Secured Party a continuing security interest ("Security Interest") in all personal property and fixtures of Debtor, wherever located, whether now existing or owned or hereafter arising or acquired, whether or not subject to the Uniform Commercial Code, as the same may be in effect in the Commonwealth of Pennsylvania, as amended from time to time, ("UCC") and whether or not affixed to any realty including (t) all accounts, chattel paper, investment property, deposit accounts, documents, equipment, farm products, general intangibles (including trademarks, service marks, trade names, patents, copyrights, licenses and franchises), instruments, inventory, money, letter of credit rights, causes of action (including tort claims) and other personal property (including agreements and instruments not constituting chattel paper or a document, general intangible or instrument); (tt) all additions, accessions to, substitutions for, or replacements of the foregoing; (iii) all proceeds and products of the foregoing including insurance proceeds; and (iv) all business records and information relating to any of the foregoing and any software or other programs for accessing and manipulating such information (collectively, the 'Collateral*). Debtor acknowledges and agrees that, in applying the law of any jurisdiction that at any time enacts all or substantially all of the uniform provisions of Revised Article 9 of the Uniform Commercial Code (1999 Official Text), the foregoing collateral description covers all assets of Debtor. 1.2 Obligations. The term "Obligations" means any and all indebtedness or other obligations of Debtor to Secured Party in any capacity, now existing or hereafter incurred, however created or evidenced, regardless of kind, class or forth, whether direct, indirect, absolute or contingent (including obligations pursuant to any guaranty, endorsement, other assurance of payment or otherwise), whether joint or several, whether from time to time reduced and thereafter increased, or entirely extinguished and thereafter reincured, together with all extensions, renewals and replacements thereof, and all interest, fees, charges, costs or expenses which accrue on or in connection with the foregoing, including any indebtedness or obligations (t) not yet outstanding but contracted for, or with regard to which any other commitment by Secured Party exists; (ii) arising prior to, during or after any pendency of any bankruptcy, insolvency, receivership or other similar proceeding, regardless of whether allowed or allowable in such proceeding; (iii) owed by Debtor to others and which Secured Party obtained, or may obtain, by assignment or otherwise; and (iv) payable under this Agreement. 2. Covenants. Debtor covenants and agrees as follows: 2.1 Perfection of Security Interest. Debtor shall execute and deliver to Secured Party such financing statements, control agreements or other documents, in form and content satisfactory to Secured Party, as Secured Party may from time to time request to perfect and continue the Security Interest. Upon the request of Secured Party, Debtor shall deliverto Secured Party any and all instruments, chattel paper, negotiable documents or other documents evidencing or constituting any part of the Collateral properly endorsed or assigned, in a manner satisfactory to Secured Party. Until such delivery, Debtor shall hold such portion of the Collateral in trust for Secured Party. Debtor shall pay all expenses for the preparation, filing, searches and related costs in connection with the grant and perfection of the Security Interest Debtor authorizes (both prospectively and retroactively) Secured Party to file financing statements, and any continuations and amendments thereof, with respect to the Collateral without Debtor's signature. A photocopy or other reproduction of any financing statement or this Agreement shall be sufficient as a financing statement for filing in any jurisdiction. 2.2 Necative Pledoe; Disposition of Collateral. Debtor shall not grant or allow the imposition of any lien, security interest or encumbrance on, or assignment of, the Collateral unless consented to in writing by Secured Party. Debtor shall not make or permit to be made any sale, transfer or other disposition of the Collateral; provided, however, prior to the occurrence of an Event of Default, Debtor may in the ordinarycourse of business consistent with its past practices and with prudent and standard practices used in the industry that is the same or similar to that in which Debtor is engaged: (i) dispose of any Collateral consisting of equipment that is obsolete or wom-out; (ii) sell or exchange any Collateral consisting of equipment in connection with the acquisition of other equipment that is at least as valuable as such equipment, that Debtor intends to use for substantially the same purposes as such equipment and that is not subject to any security interest or other lien or encumbrance; (iii) collect Collateral consisting of accounts or assign such Collateral for purposes of collection; or (iv) sell or lease Collateral consisting of inventory. A sale, lease or other transfer of such Collateral consisting of inventory in the ordinary course of Debtor's business does not include a transfer in partial or complete satisfaction of any liability or obligation or any bulk sale. 2.3 Condition of Collateral* Impermissible Use. Debtor shall keep the Collateral consisting of goods in good condition (other than ordinary wear and tear) and shall not commit or permit damage or destruction to such Collateral. Debtor shall not permit (i) the Collateral consisting of goods to be used in such a manner that would violate any insurance policy or warranty covering the Collateral or that would violate any applicable law of any governmental authority (including any environmental law) now or hereafter in effect; (iii) the Collateral consisting of goods to become fixtures on any real property on which Secured Party does not have a first priority mortgage lien (unless Secured Parry has been provided with an acceptable landlord/mortgagee waiver) or become an accession to any goods not included in the Collateral; or (iii) any goods included in the Collateral to be placed in any warehouse that may issue a negotiable document with regard to such goods. 2.4 Modification to Collateral. Debtor shall not, without Secured Party's prior written consent, grant any extension, compound, settlement for less than full amount, release (in whole or in part), modification or cancellation of, or substitution for, or credits or adjustments on Collateral consisting of accounts, chattel paper, general intangibles, instruments, documents, investment property, except that so long as no Event of CL&107-PA (11101) $e Default is than inexistence, Debtor may grant to account debtors, or other persons obligated with the Collateral, extensions, credits, discounts, compromises or settlements in the ordinary course of business consistent with its past practices and consistent with prudent and standard practices used in the industries that are the same or similar to those in which Debtor is engaged. 2.5 Titled Goods. Debtor shall cause all goods included in the Collateral to be properly titled and registered to the extent required by applicable law. Upon the request of Secured Party, Debtor shall cause the interest of Secured Party to be properly indicated on any certificate of title relating to such goods and deliver to Secured Party each Such certificate, and any additional evidence of ownership, certificates of origin or other documents evidencing any interest in such goods. 2.6 Insurance. Debtor shall at its own expense, keep in force at all times insurance covering damage to persons and against fire, flood, theft and all other risks which the Collateral may be subject, all in such amounts, with such deductibles and issued by such insurance company as shall be satisfactory to Secured Party. Such insurance shall have all endorsements that Secured Party may require and shall further (i) name Secured Parry as an additional insured on the casualty insurance and a lender's loss payable or mortgagee on the hazard insurance; (ii) provide Secured Parry with a minimum of thirty (30) days prior written notice of any amendment or cancellation; and (iii) insure Secured Party notwithstanding any act or neglect of Debtor or other owner of the property described in such insurance. If Debtor fails to obtain the insurance as provided herein, Secured Party may, but is not obligated, to obtain such insurance as Secured Party may deem appropriate including, if it so chooses, "single interest insurance" which will cover only Secured Party's interest in the Collateral. Debtor shall pay to Secured Party for the cost of such insurance. Secured Party shall have the option to hold insurance proceeds as part of the Collateral, apply any insurance proceeds toward the Obligations or apply the insurance proceeds towards repair or replacement of the item of Collateral in respect of which such proceeds were received. Upon the request of Secured Party, Debtor shall from time to time deliver to Secured Party such insurance policies, or other evidence of such policies satisfactory to Secured Party and such other related information Secured Party may request. 2.7 Collateral Information. Debtor shall provide all information, in form and substance satisfactory to Secured Party, that Secured Party shall from time to time request to (i) identify the nature, extent, value, age and location of any of the Collateral, or (ii) identify any account debtor or other party obligated with respect to any chattel paper, general intangible, instrument, investment property, document or deposit account included in the Collateral. 2.8 Financial Information. Debtor shall furnish to Secured Party financial statements in such form (e.g., audited, reviewed, compiled) and at such intervals as Secured Party shall request from time to time plus any additional financial information that Secured Parry may request. A8 such financial statements shall be in conformity with generally accepted accounting principles consistently applied. 2.9 Taxes: Licenses: Compliance with Laws. Before the end of any applicable grace period, Debtor shall pay each tax, assessment, fee and charge imposed by any governmental authority upon the Collateral, the ownership, disposition or use of any of the Collateral, this Agreement or any instrument evidencing any of the Obligations. Debtor shall maintain in full force and effect each license, franchise or other authorization needed for any ownership, disposition or use of the Collateral and the conduct of its business, operations or affairs. Debtor shall comply with all applicable law of any governmental authority (including any environmental law), now or hereafter in effect, applicable to the ownership, disposition or use of the Collateral or the conduct of its business, operations or affairs. 2.10 Records: Legend. Debtor shall maintain accurate and complete books and records relating to the Collateral in conformity with generally accepted accounting principles consistently applied. At Secured Party's request, Debtor will legend, in forth and manner satisfactory to Secured Party, its books and records to indicate the Security Interest. 2.11 Additional Collateral. If at any time the liquidation value of any of the Collateral is unsatisfactory to Secured Party, then on demand of Secured Party Debtor shall either immediately (i) furnish such additional collateral satisfactory to Secured Party to be held by Secured Party as if originally pledged hereunder and shall execute such additional security agreements, financing statements orotheragreements as requested by Secured Parry (ii) or repay the Obligations to bring the outstanding amount of the Obligations to within a satisfactory relationship to the liquidation value of the Collateral. 2.12 Notifications ofChanne. Immediately upon acquiring knowledge or reason to know of any of the following, Debtor shall notify Secured Party of the occurrence or existence of (i) any Event of Default; (ii) any event or condition that, after notice, lapse of time or after both notice and lapse of time, would constitute an Event of Default; (iii) any account or general intangible that arises out of a contract with any governmental authority (including the United States); (iv) any event or condition that has or (so far as can be foreseen) will or might have any material adverse effect on the Collateral (including a material loss destruction or theft of, or of any damage to, the Collateral, material decline in value of the Collateral or a material default by an account debtor or other party's performance of obligations with respect to the Collateral), on Debtor or its business, operations, affairs or condition (financial or otherwise). 2.13 Protection of Collateral: Further Assurances. Debtor shall, at its own cost, faithfully preserve, defend and protect the Security Interest as a prior perfected security interest in the Collateral under the UCC and other applicable law, superior and prior to the rights of all third parties (other than those permitted pursuant to Section 3.1) and shall defend the Collateral against all setoffs, claims, counterclaims, demands and defenses. At the request of Secured Party, Debtor shall do, obtain, make, execute and deliver all such additional and further acts, things, deeds, assurances and instruments as Secured Party may deem necessary or advisable from time to time in order to attach, continue, preserve, perfect or protect the Security Interest and Secured Party's rights hereunder including obtaining waivers (in forth and content acceptable to Secured Party) from landlords, warehousemen and mortgagees. Debtor hereby irrevocably appoints Secured Party, its officers, employees and agents, or any of them, as attomeys-in-fact for Debtor with full power and authority in the place and stead of Debtor and in the name of Debtor or its own name from time to time in Secured Party's discretion, to perform all acts which Secured Party deems appropriate to attach, continue, preserve or perfect and continue the Security Interest, including signing for Debtor (to the extent such signature may be required by applicable law) UCC-1 financing statements and UCC-3 Statements of Change or to accomplish the purposes of this Agreement. This power of attorney, being coupled with an interest, is irrevocable and shall not be affected by the subsequent disability or incompetence of Debtor. 3. Representations and Warranties. Debtor represents, warrants and agrees as follows: 3.1 Title. Debtor holds good and marketable title to the Collateral free and clear from any security interest or other lien or encumbrance of any parry, other than the Security interest or such liens, security interests or other liens or encumbrances specifically permitted by Secured Party and set forth on Exhibit A hereto ("Permitted Liens"). Debtor has not made any prior sale, pledge, encumbrance, assignment or other disposition of any of the Collateral except for the Permitted Liens. 3.2 Authority. If Debtor is a business entity, it is duly organized, validly existing and in good standing under the laws of the above named state of organization. Debtor has the full power and authority to grant the Security Interest and to execute, deliver and perform its obligations CLB-107-PA (11101) SS in accordance with this Agreement. The execution and delivery of this Agreement will not (i) violate any applicable law of any governmental authority or any judgment or order of any court, other governmental authority or arbitrator; (ii) violate any agreement governing Debtor or to which Debtor is a parry; or (iii) result in a security interest or other lien or encumbrance on any of its assets. Debtor's certificate of incorporation, by- laws or other organizational documents do not prohibit any tens or condition of this Agreement. Each authorization, approval or consent from, each registration and filing with, each declaration and notice to, and each other act by or relating to, any party required as a condition of Debtor's execution, delivery or performance of this Agreement (including any shareholder or board of directors or similar approvals) has been duty obtained and is in full force and effect. Debtor has the power and authority to transact the business in which it is engaged and is duly licensed or qualified and in good standing in each jurisdiction in which the conductof its business orownership of property requires such licensing orsuch qualifications. 3.3 Judgments and Litigation. There is no pending or threatened claim, audit, investigation, action or other legal proceeding or judgment or order of any court, agency or other governmental authority or arbitratorwhich involves Debtor or the Collateral and which might have a material adverse effect upon the Collateral, the Debtor, its business, operations, affairs or condition (financial or otherwise), or threaten the validity of this Agreement or any related document or action. Debtor will immediately notify Secured Party upon acquiring knowledge of the foregoing. 3.4 Enforceability of Collateral. Instruments, chattel paper, accounts or documents which constitute any part of the Collateral are genuine and enforceable in accordance with their terms, comply with the applicable law of any governmental authority concerning form, content, manner of preparation and execution, and all persons appearing to be obligated on such Collateral have authority and capacity to contract and are in fact obligated as they appear to be on such Collateral. There are no restrictions on any assignment or other transfer or grant of the Security Interest by Debtor. Each sum represented by Debtor from time to time as owing on accounts, instruments, deposit accounts, chattel paper and general intangibles constituting any part of the Collateral by account debtors and other parties with respect to such Collateral is the sum actually and unconditionally owing by account debtors and other parties with respect thereto at such time, except for applicable normal cash discounts. None of the Collateral is subject to any defense, set-off, claim or counterclaim of a material nature against Debtor except as to which Debtor has notified Secured Party in writing. 3.5 Location of Chief Executive Office. Records. Collateral. The locations of the following are listed on page one of this Agreement or, if different or additional, on Exhibit A hereto:(!) Debtor's residence, principal place of business and chief executive office; (ii) the office in which Debtor maintains its books or records relating to the Collateral; (iii) the facility (including any storage facility) at which now owned or subsequently acquired inventory, equipment and fixtures constituting any part of the Collateral shall be kept; and (iv) the real property on which any crop included in the Collateral is growing or is to be grown, or on which any timber constituting any part of the Collateral is or is to be standing. Debtor will not effect or permit any change in any of the foregoing locations (or remove or permit the removal of the records or Collateral therefrom,, except for mobile equipment included in the Collateral which may be moved to another location for not more than thirty (30) days) without thirty (30) days prior written notice to Secured Party and all actions deemed necessary by Secured Party to maintain the Security Interest intended to be granted hereby at all times fully perfected and in full force and effect have been taken. All of the locations listed on page one or Exhibit A are owned by Debtor, of if not, by the party(ies) identified on Exhibit A. 3.6 Structure: Name. Debtor's organizational structure, state of registration and organizational identification number (if arty) are stated accurately on page one of this Agreement, and its full legal name and any trade name used to identify it are stated accurately on page one of this Agreement, or if different or additional are listed on Exhibit A hereto. Debtor will not change its name, any trade names or its identity, its organizational structure, state of registration or organizational identification number without thirty (30) days priorwriften notice to Secured Party. All actions deemed necessary by Secured Party to maintain the Security Interest intended to be granted hereby at all times fully perfected and in full force and effect have been taken. 4. Performance and Expenditures by Secured Party. If Debtor fails to perform or comply with any of the terms hereof, Secured Party, at its option, but without any obligation so to do, may perform or comply, or otherwise cause performance or compliance, with such terms including the payment or discharge of all taxes, fees, security interest or other liens, encumbrances or claims, at any time levied or placed on the Collateral. An election to make expenditures or to take action or perform an obligation of Debtor under this Agreement, after Debtor's failure to perform, shall not affect Secured Party's right to declare an Event of Default and to exercise its remedies. Nor shall the provisions of this Section relieve Debtor of any of its obligations hereunder with respect to the Collateral or impose any obligation on Secured Party to proceed in any particular manner with respect to the Collateral. 5. Duty of Secured Party. Secured Party's sole duty with respect to the custody, safekeeping and physical preservation of the Collateral in its possession shall be to deal with it in the same manner as Secured Party dealswith similar property forits own account. Neither Secured Party nor its directors, officers, employees or agents shall be liable for failure to demand, collect or realize upon the Collateral or for any delay in doing so or shall be under any obligation to sell or otherwise dispose of the Collateral upon the request of Debtor or any other person or to take any other action whatsoever with regard to the Collateral. The powers conferred on Secured Party hereunder are solely to protect Secured Party's interests in the Collateral and shall not impose any duty upon any Secured Party to exercise any such powers. Secured Party shall be accountable only for amounts that it actually receives as a result of the exercise of its powers under this Agreement, and neither it nor its officers, directors, employees or agents shall be responsible to Debtor for any act or failure to act hereunder, except for its own gross negligence or wilful misconduct. 6. Certain Rights and Remedies. 6.1 Inspection; Verification. Secured Parry, and such persons as it may designate, shall have the right from time to time to (i) audit and inspect (a) the Collateral, (b) all books and records related thereto (and make extracts and copies from such records), and (c) the premises upon which any of the Collateral or books and records may be located; (ii) discuss Debtor's business, operations, affairs or condition (financial or otherwise) with its officers, accountants; and (iii) verify the validity, amount, quality, quantity, value, condition and status of, or any other matter relating to the Collateral in any manner and through any medium Secured Party may consider appropriate (including contacting account debtors or third party possessing the Collateral for purpose of making such verification). Debtor shall furnish all assistance and information and perform any acts Secured Party may require regarding thereto. Debtor shall bear the cost and expense of any such inspection and verification. 6.2 Notification of Security Interest. Secured Party may notify any or all account debtors and other person obligated with respect to the Collateral of the Security Interest therein. Upon the request of Secured Party, Debtor agrees to enter into such warehousing, lockbox or other custodial arrangement with respect to any of the Collateral that Secured Party shall deem necessary or desirable. 6.3 Application of Proceeds. Secured Party may apply the proceeds from the sale, lease or other disposition or realization upon the Collateral to the Obligations in such order and manner and at such time as Secured Parry shall, in its sole discretion, determine. Debtorwaives CUB-107-PA (11101) SS and agrees not to assert any rights it may have or acquire under current Section 9-112 of the UCC (or any subsequent amendment thereto). Debtor shall remain liable for any deficiency if the proceeds of any sale, lease or other disposition or realization upon the Collateral are 'nsufficient to pay the Obligations. Any proceeds received by Debtor from the Collateral after an Event of Default shall (i) be held by Debtor in trust for Secured Party in the same medium in which received; (ii) not be commingled with any assets of Debtor; and (iii) be delivered to Secured Party in the form received, property indorsed to permit collection. After an Event of Default, Debtor shall promptly notify Secured Party of the return to or repossession by Debtor of goods constituting part of the Collateral, and Debtor shall hold the same in trust for Secured Party and shall dispose of the same as Secured Party directs. 6.4 Income and Proceeds of Instruments and Investment Property. Until the occurrence of an Event of Default, Debtor reserves the right to request to receive all cash income or cash distribution (whether in cash or evidenced by check) payable on account of any instrument or investment property constituting part of the Collateral (collectively, "Cash Distribution"). Until actually paid, all rights in the foregoing shall remain subject to the Security Interest. Any other income, dividend, distribution, increase in or profits (including any stock issued as a result of any stock split or dividend, any capital distributions and the like) on account of any instrument or investment property constituting part of the Collateral and, upon the occurrence of an Event of Default, all Cash Distributions, shall be delivered to Secured Parry immediately upon receipt, in the exact form received and without commingling with other property which may be received by, paid or delivered to Debtor or for Debtors account, whether as an addition to, in discharge of, in substitution of, or in exchange of the Collateral. Until delivery, such Collateral shall be held in trust for Secured Party. 6.5 Registered Holder of the Collateral. Secured Parry shall have the right to transfer to or register (with or without reference to this Agreement) in the name of Secured Party or its nominee any investment property, general intangible, instrument or deposit account constituting part of the Collateral so that Secured Parry or such nominee shall appear as the sole owner of record thereof; provided, however, that so long as no Event of Default has occurred, Secured Party shall deliver to Debtor all notices, statements or other communications received by it or its nominee as such registered owner, and upon demand and receipt of payment of necessary expenses thereof, shall give to Debtor or its designee a proxy or proxies to vote and take alt action with respect to such Collateral. After the occurrence of any Event of Default, Debtor waives all rights to be advised of or to receive any notices, statements or communications received by Secured Party or its nominee as such record owner, and agrees that no proxy or proxies given by Secured Party to Debtor or its designee as aforesaid shall thereafter be effective. 7. Default. 7.1 Events of Default. Any of the following events or conditions shall constitute an "Event of Defaulr: (i) failure by Debtor to pay when due (whether at the stated maturity, by acceleration, upon demand or otherwise) the Obligations, or any part thereof, or there occurs any event or condition which after notice, lapse of time or after both notice and lapse of time will permit acceleration of any Obligation; (ii) default by Debtor in the performance of any obligation, term or condition of this Agreement or any other agreement with Secured Party or any of its affiliates or subsidiaries (collectively, 'Affiliates"); (iii) failure by Debtor to pay when due (whether at the stated maturity, by acceleration, upon demand or otherwise) any indebtedness or obligation owing to any third party or any Affiliate, the occurrence of any event which could result in acceleration of payment of any such indebtedness or obligation or the failure to perform any agreement with any third party or any affiliate; (iv) Debtor is dissolved, becomes insolvent, generally fails to pay or admits in writing its inability generally to pay its debts as they become due; (v) Debtor makes a general assignment, arrangement or composition agreement with or for the benefit of its creditors or makes, or sends notice of any intended, bulk sale; the sale, assignment, transfer or delivery of all or substantially all of the assets of Debtor to a third party; or the cessation by Debtor as a going business concern; (vi) Debtor files a petition in b:.nkruptcy or institutes any action under federal or state law for the relief of debtors or seeks or consents to the appointment of an administrator, receiver, custodian or similar official for the wind up of its business (or has such a petition or action filed against it and such petition action or appointment is not dismissed or stayed within forty-five (45) days); (vii) the reorganization, merger, consolidation or dissolution of Debtor (or the making of any agreement therefor); (viii) the death or judicial declaration of incompetency of Debtor, if an individual; (ix) the entry of any judgment or order of any court, other governmental authority or arbitrator against Debtor; (x) falsity, omission or inaccuracy of facts submitted to Secured Party or any Affiliate (whether in a financial statement or otherwise); (A) an adverse change in the Collateral, Debtor, its business, operations, affairs or condition (financial or otherwise) from the status shown on any financial statement or other document submitted to Secured Party, and which change Secured Party determines will have a material adverse affect on (a) Debtor, its business, operations or condition (financial or otherwise), or (b) the ability of Debtor to pay or perform the Obligations; (xit) any pension plan of Debtor fails to comply with applicable law or has vested unfunded liabilities that, in the opinion of Secured Party, might have a material adverse effect on Debtors ability to repay its debts; (xiii) any indication or evidence received by Secured Party that Debtor may have directly or indirectly been engaged in any type of activity which, in Secured Party's discretion, might result in the forfeiture or any property of Debtor to any governmental authority; (xiv) the occurrence of any event described in Section 7.1(i) through and including 7.1(AH)with respect to any endorser, guarantor or any other party liable for, or whose assets or any interest therein secures, payment of any of the Obligations; or (xv) Secured Party in good faith deems itself insecure with respect to payment or performance of the Obligations. 7.2 Rights and Remedies Upon Default. Upon the occurrence of any Event of Default, Secured Party without demand of performance or other demand, presentment, protest, advertisement or notice of any kind (except any notice required by taw) to or upon Debtor or any other person (ail and each of which demands, presentments, protests, advertisements and notices are hereby waived), may exercise all rights and remedies of a secured party under the UCC, under other applicable law, in equity or otherwise or available under in this Agreement including: 7.2.1 Obligations Immediately Due: Termination of Lending. Secured Party may declare ail or any part of any Obligations not payable on demand to be immediately due and payable without demand or notice of any kind. All or any part of any Obligations whether or not payable on demand, shall be immediately due and payable automatically upon the occurrence of an Event of Default in Section 7.1 (vi) above. The provisions hereof are not intended in any way to affect any rights of Secured Parry with respect to any Obligations which may now or hereafter be payable on demand. Secured Party may terminate any obligation it may have to grant any additional loan, credit or other financial accommodation to Debtor. 7.2.2 Access to Collateral. Secured Party, or its agents, may peaceably retake possession of the Collateral with or without notice or process of law, and for that purpose may enter upon any premises where the Collateral is located and remove the same. At Secured Party's request, Debtor shall assemble the Collateral and deliver it to Secured Parry or any place designated by Secured Party, at Debtors expense. 7.2.3 Sel I Collateral. Secured Parry shall have the right to sell, lease or otherwise dispose of the Collateral in one or more parcels at public or private sale or sales upon such terms and conditions as it may deem advisable and at such prices as it may deem best, for cash or on credit or for future delivery without assumption of any credit risk. Each purchaser at any such sale shall hold the property sold absolutely, free from any claim or right on the part of Debtor. Debtor hereby waives (to the extent permitted by taw) all rights of redemption, stay and appraisal which Debtor now has or may at any time in the future have under any applicable law now existing or hereafter enacted. Secured CL&107-PA (11101) SB Party stall have the right to use Debtor's premises and any materials or rights of Debtor (including any intellectual property rights) without charge for such sales or disposition of the Collateral or the completion of any work in progress for such times as Secured Party may see fit. Without in any way requiring notice to be given in the following time and manner, Debtor agrees that with respect to any notice by Secured Party of any sale, lease or other disposition or realization or other intended action hereunder or in connection herewith, whether required by the UCC or otherwise, such notice shall be deemed reasonable and proper if given at least five (5) days before such action in the manner described below in the Section entitled "Notices". 7.2.4 Collect Revenues. Secured Party may either directly or through a receiver (1) demand, collect and sue on any Collateral consisting of accounts or any other Collateral including notifying account debtors or any other persons obligated on the Collateral to make payment on the Collateral directly to Secured Party; (ii) file any claim or to take any other action or proceeding in any court of law or equity or otherwise deemed appropriate by Secured Party with respect to the Collateral or to enforce any other right in respect of the Collateral; (iii) take control, in any manner, of any payment or proceeds from the Collateral; (iv) prosecute ordefend any suit, action or proceeding brought against Debtor with respect to the Collateral; (v) settle, compromise or adjust any and all claims arising under the Collateral or, to give such discharges or releases as Secured Party may deem appropriate; (vi) receive and collect all mail addressed to Debtor, direct the place of delivery thereof to any location designated by Secured Party; to open such mail; to remove all contents therefrom; to retain all contents thereof constituting or relating to the Collateral; (vii) execute, sign or endorse any and all claims, endorsements, assignments, checks or other instruments with respect to the Collateral; or (viii) generally, use, sell, transfer, pledge and make any agreement with respect to or otherwise deal with any of the Collateral; and Debtor hereby irrevocably appoints Secured Party, its officers, employees and agents, or any of them, as attomeys-in- fact for Debtor with full power and authority in the place and stead of Debtor and in the name of Debtor or in its own name from time to time in Secured Party's discretion, to take any and all appropriate action Secured Party deems necessary or desirable to accomplish any of the foregoing or otherwise to protect, preserve, collect or realize upon the Collateral or to accomplish the purposes of this Agreement. Debtor revokes each power of attorney (including any proxy) heretofore granted by Debtorwith regard to the Collateral. This power of attorney, being coupled with an interest, is irrevocable and shall not be affected by the subsequent disability or incompetence of Debtor. 7.2.5 Setoff. Secured Party may place an administrative hold on and set off against the Obligations any property held in a deposit or other account With Secured Party or any of its Affiliates or otherwise owing by Secured Party or any of its Affiliates in any capacity to Debtor. Such set-off shall be deemed to have been exercised immediately at the time Secured Party or such Affiliate elects to do so. 0. Expenses. Debtor shall pay to Secured Party on demand all costs and expenses (including ail reasonable fees and disbursements of all counsel retained for advice, suit, appeal or other proceedings or purpose and of any experts or agents it may retain), which Secured Party may incur in connection with (i) the administration of this Agreement, including any administrative fees Secured Party may impose forthe preparation of discharges, releases or assignments to third-parties; (it) the custody or preservation of, or the sale, lease or other disposition or realization on the Collateral; (iii) the enforcement and collection of any Obligations or any guaranty thereof; (iv) the exercise, performance enforcement or protection of any of the rights of Secured Party hereunder, or (v) the failure of Debtor to perform or observe any provisions hereof. After such demand for payment of any cost, expense or fee under this Section or elsewhere under this Agreement, Debtor shall pay interest at the highest default rate specified in any instrument evidencing any of the Obligations from the date payment is demanded by Secured Party to the date reimbursed by Debtor. All such costs, expenses or fees under this Agreement shall be added to the Obligations. 9. Indemnification. Debtor shall indemnify Secured Party and its Affiliates and each officer, employee, accountant, attorney and other agent thereof (each such person being an "Indemnified Party) on demand, without anylimitation as to amount, against each liability, costand expense (including all reasonable fees and disbursements of all counsel retained for advice, suit, appeal or other proceedings or purpose, and of any expert or agents an Indemnified Party may retain) heretofore or hereafter imposed on, incurred by or asserted against any Indemnified Party (including any claim involving any allegation of any violation of applicable law of any governmental authority (including any environmental law or criminal law)), however asserted and whether now existing or hereafter arising, arising out of any ownership, disposition or use of any of the Collateral; provided, however, the foregoing indemnity shall not apply to liability, cost or expense solely attributable to an Indemnified Party s gross negligence orwillful misconduct. This indemnity agreement shall survive the termination of this Agreement. Any amounts payable under this or any other section of this Agreement shall be additional Obligations secured hereby. 10. Miscellaneous. 10.1 Notices. Any demand or notice hereunder or under any applicable taw pertaining hereto shall be in writing and duly given if delivered to Debtor (at its address on the Secured Party's records) or to the Secured Party (at the address on page one and separately to the Secured Party officer responsible for Debtor's relationship with the Secured Party). Such notice or demand shall be deemed sufficiently given for all purposes when delivered (i) by personal delivery and shall be deemed effective when delivered, or (ii) by mail or courier and shall be deemed effective three (3) business days after deposit in an official depository maintained by the United States Post Office for the collection of mail or one (1) business day after delivery to a nationally recognized overnight courier service (e.g., Federal Express). Notice by e-mail is not valid notice under this or any other agreement between Debtor and the Secured Party. 10.2 Governing Law; Jurisdiction. This Agreement has been delivered to and accepted by the Secured Party and will be deemed to be made in the Commonwealth of Pennsylvania. Unless provided otherwise under federal law, this Agreement will be interpreted in accordance with the laws of the Commonwealth of Pennsylvania excluding its conflict of laws rules. DEBTOR HEREBY IRREVOCABLY CONSENTSTO THE EXCLUSIVE JURISDICTION OF ANY STATE OR FEDERAL COURT IN THE COMMONWEALTH OF PENNSYLVANIA IN A COUNTY OR JUDICIAL DISTRICT WHERE THE SECURED PARTY MAINTAINS A BRANCH AND CONSENTS THAT THE SECURED PARTY MAY EFFECT ANY SERVICE OF PROCESS IN THE MANNER AND AT DEBTOR'S ADDRESS SET FORTH ABOVE FOR PROVIDING NOTICE OR DEMAND; PROVIDED THAT NOTHING CONTAINED IN THIS AGREEMENT WILL PREVENT THE SECURED PARTY FROM BRINGING ANY ACTION, ENFORCING ANY AWARD OR JUDGMENT OR EXERCISING ANY RIGHTS AGAINST DEBTOR INDIVIDUALLY, AGAINST ANY SECURITY OR AGAINST ANY PROPERTY OF DEBTOR WITHIN ANY OTHER COUNTY, STATE OR OTHER FOREIGN OR DOMESTIC JURISDICTION. Debtor acknowledges and agrees that the venue provided above is the most convenient forum for both the Secured Party and Debtor. Debtor waives any objection to venue and any objection based on a more convenient forum in any action instituted under this Agreement. 10.3 Security Interest Absolute. All rights of Secured Party hereunder, the Security Interest and all obligations of Debtor hereunder shall be absolute and unconditional irrespective of (i) any filing by or against Debtor of any petition in bankruptcy or any action under federal or state law for the relief of debtors or the seeking or consenting to of the appointment of an administrator, receiver, custodian or similar officer for the wind up of its business; (ii) any lack of validity or enforceability of any agreement with respect to any of the Obligations, (iii) any change in the time, manner or place of payment of, or in any other term of, all or any of the Obligations, or any other amendment or waiver of or any consent to any departure from any agreement or instrument with respect to the Obligations, (iv) any exchange, release or non-perfection of any lien or CLS-107-PA (11101) SB any release or amendment or waiver of or consent under or departure from any guarantee, securing or guaranteeing all or any of the Obligations, or (v) any other circumstance that might otherwise constitute a defense available to, or a discharge of, Debtor in respect of the Obligations or this Agreement. If, after receipt of any payment of all or any part of the Obligations, Secured Party is for any reason compelled to surrender such payment to any person or entity, because such payment is determined to be void or voidable as a preference, impermissible setoff, or a diversion of trust funds, or for any other reason, such payment shall be reinstated as part of the Obligations and this Agreement shall continue in full force notwithstanding any contrary action which may have been taken by Secured Party in reliance upon such payment, and any such contrary action so taken shall be without prejudice to Secured Party's rights under this Agreement and shall be deemed to have been conditioned upon such payment having become final and irrevocable. 10.4 Remedies Cumulative; Preservation of Rights. The rights and remedies herein are cumulative, may be exercised singly or concurrently and are not exclusive of any other rights or remedies which Secured Parry may have under other agreements now or hereafter in effect between Debtor and Secured Party, at law (including under the UCC) or in equity. No failure or delay of Secured Parry in exercising any power or right hereunder shall operate as a waiver thereof, nor shall any single or partial exercise of any such right or power, or any abandonment or discontinuance of steps to enforce such a right or power, preclude any other or further exercise thereof or the exercise of any other right or power. Debtor expressly disclaims any reliance on any course of dealing or usage of trade or oral representation of Secured Party including representations to make loans to Debtor. No notice to or demand on Debtor in any case shall entitle Debtor to any other or further notice or demand in similar or other circumstances. 10.5 Joint and Several: Successors and Assigns. If there is more than one Debtor, each of them shall be jointly and severally liable for all amounts, which become due, and the performance of all obligations under this Agreement and the term 'Debtor' shall include each as well as all of them. This Agreement shall be binding upon Debtor and upon its heirs and legal representatives, its successors and assignees, and shall inure to the benefit of, and be enforceable by, Secured Party, its successors and assignees and each direct or indirect assignee or other transferee of any of the Obligations; provided, however, that this Agreement may not be assigned by Debtor without the prior Written consent of Secured Party. 10.8 Walvers; Changes In Writing. No course of dealing or other conduct, no oral agreement or representation made by Secured Party or usage of trade shall operate as a waiver of any right or remedy of Secured Party. No waiver of any provision of this Agreement or consent to any departure by Debtor therefrom shall In any event be effective unless made specifically in writing by Secured Party and then such waiver or consent shall be effective only in the specific instance and for the purpose for which given. No modification to any provision of this Agreement shall be effective unless made in writing in an agreement signed by Debtor and Secured Party. 10.7 Interpretation. Unless the context otherwise clearly requires, references to plural includes the singular and references to the singular include the plural; the word 'or has the inclusive meaning represented by the phrase "and/or'; the word "Including', 'Includes* and 'include' shalli be deemed to be followed by the words 'without limitation'; and captions or section headings are solely for convenience and not part of the substance of this Agreement. Any representation, warranty, covenant oragreement herein shall survive execution and delivery of this Agreement and shall be deemed continuous. Each provision of this Agreement shall be interpreted as consistent with existing law and shall be deemed amended to the extent necessary to comply With any conflicting law. If any provision nevertheless is held invalid, the other provisions shall remain in effect. Debtor agrees that in any legal proceeding, a photocopy of this Agreement kept in Secured Party's course of business may be admitted into evidence as an original. Terms not otherwise defined in this Agreement shall have the meanings attributed to such tenors In the UCC. 10.8 Waiver of JUN Trial. DEBTOR AND SECURED PARTY HEREBY KNOWINGLY, VOLUNTARILY, AND INTENTIONALLY WANE ANY RIGHT TOTRIALBY JURY DEBTOR AND SECURED PARTY MAY HAVE IN ANY ACTION OR PROCEEDING, IN LAW OR IN EQUITY, IN CONNECTION WITH THIS AGREEMENT OR ANY TRANSACTIONS RELATED HERETO. DEBTOR REPRESENTS AND WARRANTS THAT NO REPRESENTATIVE OR AGENT OF SECURED PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SECURED PARTY WILL NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THIS JURY TRIAL WAIVER. DEBTOR ACKNOWLEDGES THAT SECURED PARTY HAS BEEN INDUCED TO ENTER INTO THIS AGREEMENT BY, AMONG OTHERTHINGS,THE PROVISIONS OF THIS SEC7nON. Dated: May jl-?o , 2005 SHAULL EQUIPMENT / UPPL NY G BY ter W. Ginanni, Jr., Authorization Confirmed: FOR SECURED PARTY USE ONLY Borrower. SHAULL EQUIPMENT A? D?UPPLY COMPANY Obligor #: 9947418701 cLB-107-PA (11/01) 59 COMMONWEALTH OF PENNSYLVANIA ACKNOWLEDGMENT ?SS. COUNTY OF On the 10 day of May, in the year 2005, before me, the undersigned, a Notary Public in and for said Commonwealth, personally appeared LESTER W. GINANNI, JR., personally known tome or proved tome on the basis of satisfactory evidence to be the individual whose name is subscribed to the within said instrument and acknowledged to me that he/she executed the same in his/her capacity, and that by his/her signature on the instrument, the individual, or the person upon behalf of which the individual acted, executed the t P Y MANIA f )UM44L IIEAL K/M M. tM1720N, Hcb" flrblc w 0 r r" it Cw" Exhibit A 3on 3. 20M 1. Permitted Liens (§3.1) Rely on existing UCCs financing statements for M&T Bank 2. Residence, principal place of business or chief executive office (§3.5(1)) 100 Market Street, Lemoyne, Pennsylvania 17043-0612, Cumberland County. 3. Address (including county) of each place of business or location where the Collateral of the undersigned will be kept (§3.5) 100 Market Street, Lemoyne, Pennsylvania 17043-0612, Cumberland County, 4. Trade Name, 'Doing Business As' Name or Assumed Name (53.6) Authorization Confirmed: Borrower. SHAULL EQUIPMENT FOR SECURED PARTY USE ONLY .Y COMPANY Obligor #: 9947418701 owned by Le-10v-PA(1tro+) se Debtaramrfe (last name first if individual) and mailing address: SaAULL EQUIPMENT AND SUPPLY COMPAIN17 100 Marker Street Lemoyne, PA 17043 Debtor name (last name first if individual) and mailing address: nnnna"nrv ?, n, c,".on, ? ons UsORTACamtne Coda Fornr ti IMPORTANT -Pleasp ase rted instructions nns an reverse side of nape 4 before Completing Filing No. (Vamped by filing Sfirzr): Date, Time, Filing Ofrice sLmnnd iy filing onicerl: ?8?50100 5'r'ii0'(2l ?i!' t Debtor name past name first if individual) and mailing with the (clv,ck applicable hail: 0 Secretary of .he Cmnmoraeanh. 0 Prothonotary of ..?-__. O real elate records of past name first if individual) and address for VAUPt>IN DEPOSIT BANK AND TRUST COMPANY 213 Market Street Harrisburg, PA 17101 Assigneo(s) of Secured Pany name(s) bast name first if individua i and address for.security interest information: Y Bp;Ekullypes of Parties (check if applicable): 0,:The terms "Debtor" and "Secured Party" mean "Lessee and "Lessor," z res;?ctivety. , 0 the terms "Debtor" and "Secured Party" mean "Consignee" and ?Consigrioi;' tespectively. :1,Q Defiler4 a TransmittingUbldy. by item and/or type: the following real estate: 100 Market Street, Lemoyne, PA and Street Address: 5969 William Flynn Highway, Bakerstown, PA Described al: Book of (check one) 0 Deeds 0 Mortgages, at Page(s) for County, Uniform Parcel Identifier 0 Described an Additional Sheet Name of record owner (required only it no Debtor has an interest of fs ord): Debtor hereby grants to Secured Party a lien on and security interest in the Collateral as identified and described on Schedule A attached hereto and made a part hereof. real estate. p applicable: The collateral is, or includes (check appropriate box(esp - a. LJ crops grawing at to be sawn an - b. ® goods which are or 3mome fistures on - c 0 minerals at dse like (including all and gas) as extracted on - d. 0 accounts resultingfrom the sale of minerals or the like(includingoil and gas) at the wellhead or minehead on - fills,stl4ament is tiled-faith only tie Secured; Party's signature to perfect a sfi:'Q'rity',id Brest iratdlaterel (check appReable box(es)) af,.Q:}cguired after a change of name, identify or corporate structure of the Debtor. 11 Q a b which live filing has lapsed. d ,al"70'ispbWl to a security interest in another county in Pennsylvania - 0 when the collateral was moved to this county. '0 when the Debtors residence or place of business was moved to this county. d. already subject to a security interest in another laris6ction- 0 when the collateral was moved to Pennsylvania. 0 when the Debtors location was moved to Pennsylvania, e. 0 which is proceeds of the collateral described in block 9, in which a security inlereffi was previously perfected (also describe proceeds in block 9, if purchased with cash proceeds and not adequately described on the anginal financing s`utemenn. Secured Party Signature(s) (required only if box(es) is checked above): STANDARD FOR - FIAW PA Ua:t lame. 5/931 Awir"I b'l!Witury or e m imill,, offim"Nam, DebtorSignature(sl: Shaull°q ipment and y r la Company RETURN RECEIPT TD' C. Schwartz Dauphin Deposit Bank 3045 Market Street Camp Hill, PA 17011 County. County. hNrl and Trust Company 12 FIEIPiG OFFICE ORIGMAL NDiE - This page will not are returned by the Department of State. 2^8250(01 SCHEDIJU, A (1) All accounts, accounts receivable, contract rights relating to accounts receivable, chattel paper, instruments, do,:uments, general intangibles and other forms of obligations owing to Borrower, whether now owned or hereafter acquired by Borrower (collectively, the "Accounts"). (2) Any and all goods, merchandise or other personal property, wheresoever located and whether or not in transit, now owned or hereafter acquired by Borrower which is or may at any time be held for sale or lease, furnished under any contract of service or held as inventory, raw materials, work in process, - _ parts, finished goods, supplies or material used or consumed in Borrower's business, and all such property, the sale or other disposition of which has given rise to Accounts and which has been returned to or repossessed or stopped in transit by Borrower (collectively, the "Inventory"). (3) All letters of credit, instruments, guarantee claims, security interests or other security held by Borrower to secure payment of any of Borrower's Accounts. (4) All books and records, whether written, stored in' computer memory or stored on computer tape, disk or punch cards (including, without limitation, customer lists, credit files, computer programs, print-outs and other computer materials and record(s) of Borrower pertaining to any of the foregoing. (5) All of Debtor's fixtures, machinery and equipment of any nature whatsoever, now owned or hereafter acquired by Borrow- er, including specifically fixtures, machinery and equipment purchased by Debtors and now or at any time hereafter installed in, attached to or placed or situated in or upon the improvements erected on the real estate described in Paragraph 10 and used or intended to be used in the operation of any buildings and im- provements now or hereafter erected thereon, including replace- ments and substitutions thereof. (5) All proceeds and products of the foregoing. I Z°i? IS E? I H L SARA RAF 717-852-4693 FALLF(RST BANK ATTN: S RAFFENSSERGER MC 404-135 PO BOX 2503 1123 N GEORGE STREET YORK PA 17404 L la. INITIAL FINANCING STATEMENT FILT a 28250100 2. TERMINATION: EnslN,uu NnM FbnFAq Sw+nrll NnlgplaF al 3. CONTINUATION: Enaulr.ruaa el NF Finalwb9 3uWnwn WantlM mnbmNG la NIa anaiaNlal p,nad pFeltl,n M' yp1ea04 p.. i. ASSIGNMENT INS a umMJ: OIw wM d++MPw.az 4^ T+eFh S. AMENDMENT (PARTY INFORMATION): Tla Amsdm,m db+b AW dletllypE d W IeYp WN CFM neau ? p1Ml0a appraPNb Walln+l rT CXFNGE IumF wM?ar Wtrw: GM eulrltnmra nwl+Mgw.lF ar nam, IS_wn.AanF+f.NMNn ). ae TA+e@er alAaFnFCbual S. CURRENT RECORD INFORMATION: a0,n. ? nnue! R U9. F uww 7. ,..M„_.._. _ SHAULL EOUIPMF_NT & SUPPLY COMPANY 100 MARKET STREET Peaenw a .wnm C]Adaeea a ?Mni". a " LEMOYNE .1 aavYw W,IMI [3-W-4 PA 117043 I USA MtNn-0mant aulonzw h a Oaa`a warA 9. NAME CF SECURED PARTY OF RECORD AUTHORIZING THIS AMENDMENT Inam, a mignar, it IMua is N Aafi?amnll. IM A In ad, C ,atvw F Y'kl1 wo Mtlnrn2nnf OPMM, mil INs •S a TRMnaw ftlh,1Ra+ sy a *bW. Cna nm, ana wor woa at CESTOR a.~zin91le, Nnwanem. 9a ORG.wtzATtOMS NAME ALLFIRST BANK FORMERLY KNOWN AS DAUPHIN DEPOSIT BANK & TRUST CO 0017876-GIS FILING OFFICE COPY - NATIONAL UCC FINANCING STATEMENT AMENDMENT (FORM UCCZ) (REV. OT129193) Cl? n Srj w , -L - CD 0 OZ MANUFACTURERS AND TRADERS TRUST COMPANY Plaintiff V. LUCKENBILL BROTHERS PAVING & EXCAVATING, INC. Defendant Admitted. 2. Admitted. 3. Admitted. IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW NO, 06-3235 ANSWE 4. Denied. It is specifically denied that Defendant purchased a CAT Paver Ap 1050 sln 1JG00181 on March 6, 2006 for the sum of $5,300. On the contrary it is averred that Defendant entered into an agreement to purchase said Paver on or about November 15, 2005 and paid a total purchase price of $10,3000 in the form of a $5,000 cash payment to Shaull's Equipment and a check in the amount of $5,300 payable to M&T Bank. 5. Denied. It is specifically denied the Paver has a value of $20,000. On the contrary it is specifically averred the Paver had a value of $10,300 and said Paver is in need of repair and replace of parts with a total value in excess of $20,000. 6. Denied. It is specifically denied the sale was not in the ordinary course of Debtor's business and on the contrary it is averred that the sale was negotiated and completed within the ordinary course Debtor's business and therefore the Plaintiff's security interest follows the proceeds of said sale. Denied. It is specifically denied that Defendant acquired the Paver subject to Plaintiff s security interest for the reasons as set forth in paragraph 6 above. By way of further answer, the averments of paragraph 7 are a conclusion of law to which no responsive pleading is required. 8. Admitted in part and denied in part. It is admitted that Defendant has failed and refused to return Paver to Plaintiff. It is specifically denied that Defendant has failed to pay the true value thereof and on the contrary it is averred that payment in full was made as set forth above. The averments of paragraph 9 are a conclusion of law to which no responsive pleading is required. WHEREFORE, Defendant requests judgment against Plaintiff and in favor of Defendant and dismissal of Plaintiff s suit. arty A. Rubright, Esquire 29 East Main Street P.O. Box 706 Schuylkill Haven, PA 17972 (570) 385-4511 Attorney I.D. #29956 Attorney for Defendant VERIFICATION The undersigned, Larry Luckenbill, hereby verifies and states that: He si the President of Luckenbill Brothers Paving and Excavating, Inc. 1 He is authorized to make this Verification on its behalf. 3. The facts set forth in the foregoing Answer are true and correct to the best of his knowledge, information and belief, and 4. He is aware false statements herein are made subject to the penalties of 18 Pa. C. S. Section 4904 relating to unworn c> ? o 7 F "" J (J y t-_ W Curtis R. Long Prothonotary office of the Protbonotarp Cumberraub Countp Renee K. Simpson Deputy Prothonotary John E. Slike Solicitor `JI - 33.5 CVIL TERM ORDER OF TERMINATION OF COURT CASES AND NOW THIS 28TH DAY OF OCTOBER, 2009, AFTER MAILING NOTICE OF INTENTION TO PROCEED AND RECEIVING NO RESPONSE - THE ABOVE CASE IS HEREBY TERMINATED WITH PREJUDICE IN ACCORDANCE WITH PA R C P 230.2. BY THE COURT, CURTIS R. LONG PROTHONOTARY One Courthouse Square • Carlisle, Pennsylvania 17013 • (717) 240-6195 • Fax (717) 240-6573