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HomeMy WebLinkAbout95-01662 tf 15 /&l('). (( ,~,tLt,tA. V ,A,- l'1'--" 0740361/3528OO6P.NOl $91,352.00 March IS, 1995 PROMISSORY JUDGMENT NOTE FOR V AWE RECEIVED, KEITH L. PLASTERER and JAMIE PLASTERER (hereinafter collectively "MAKER") promise to pay to the order of GEORGE D. BERRYHILL, SR., (hereinafter "PAYEE") at the office of PAYEE, or at such other place designated by the PAYEE, the principal sum of Ninety-One Thousand Three Hundred Fifty-Two ($91,352.00) Dollars, payable in four (4) equal annual installments of Twenty-Two Thousand Eight Hundred Thirty-Eight ($22,838.00) Dollars on each of July I, 1996, 1997, 1998 and 1999. Interest, at the rate of ten (10%) per annum, shall be payable quarterly beginning July I, 1995, on any unpaid principal balance hereof. This Note may be prepaid in whole or in part at any time without penalty. Each of the following events shall constitute an Event of Default under this Note, regardless of the cause thereof and whether within or beyond the control of MAKER: (a) The failure of MAKER to pay any sum under this Note or that certain promissory note of even date herewith between MAKER and PAYEE In the principal amount of $300,000, within thirty (30) days after written notice by registered or certified mail, postage prepaid and return receipt requested, from PA YEE to MAKER that such payment has not been made when due, which notice may be given at any time on or after the 5th day following the dale when such payment was due, and such payment shall be subject to a twenty ($20.00) dollar per diem late charge after the 5th day following the date when such payment was due; (b) So long as PAYEE Is not in default under that certain Non-Competition Agreement by and between PAYEE, MAKER and Carlisle Sports Emporium, Inc. (the "Corporation") dated of even date herewith (the "Non-Competition Agreement"), the failure of KP/the Corporation to pay any sum due under the Non-Competition Agreement within thirty (30) days after wriuen notice by registered or certified mail, postage prepaid and return receipt requested, from PA YEE to MAKER that such payment has not been made when due, which notice may be given at any time on or after the 5th day following the date when such payment was due. (c) The failure of MAKER and/or the Corporation to cure, within sixty (60) days of written notice thereof, any default by MAKER or the Corporation in the performance of any non-monetary obligation under the Non- Competition Agreement or that certain Buyout Agreement of even dale 074036"3~2aOO6P.NOl herewith by and betwccn MAKER, PAYEE and Ihe Corporation (lhe "Agreement") . (d) The entry of a final non-appealable judgment, made by a court of competent jurisdiction against MAKER and/or the Corporation, for monetary damages (not covered by a policy of insurance In place for the benefit of MAKER and/or the Corporation) in excess of SI,OOO,OOO. (e) The failure of MAKER and/or the Corporation to cure, within sixty (60) days of written notice thereof, any failure of MAKER and/or the Corporation to pay, withhold, collect or remit any material tax or penalty or interest thercon, when due and payable. (I) The dissolution and/or liquidation of the Corporation or the permanent suspension of the Corporation's business. (g) If MAKER or the Corporation shall become insolvent or make an assignment for the benefit of creditors, file a petition in bankruptcy, apply to or petition any tribunal for the appointment of a receiver, intervenor or trustee for MAKER or the Corporation or a substantial part of the MAKER's or the Corporation's assets: or if MAKER or the Corporation shall commence any proceeding under any bankruptcy, assignment or readjustment of debt law or statute of any jurisdiction, whether now or hereafter in effect: or if any such petition or application shall have been filed or proceeding commenced against MAKER or the Corporation which shall not be dismissed within ninety (90) days, or if any such receiver, intervenor or trustee shall have been appointed and shall not have been dismissed within ninety (90) days, (h) The sale by the Corporation of substantially all of Its assets to an unrelated third party, other than in the ordinary course of business; or the sale by MAKER of the equity interest owned by him in the Corporation to an unrelated third party: or the redemption by the Corporation of the equity interest of MAKER in the Corporation. If an Event of Default should occur under this Note, then the entire unpaid balance of said principal sum, together with any attorney's fees but in no event less than the sum of One Thousand Dollars ($1,000) shall, at the option of PAYEE and without notice to MAKER, become due and payable immediately, and PA YEE may also recover all costs of suit and other expenses in connection therewith. -2- 0740568/55Z8006P.NOl MAKER hereby irrevocably authorizes and empowers any attorney or the Prothonotary or Clerk of any court in the Commonwealth of Pennsylvania, or elsewhere, to appear at any time for MAKER in connection with the delivery, acceptance, performance, default or enforcement of this Note. MAKER hereby irrevocably authorizcs and cmpowers any attorncy or the Prothonotary or Clerk of any court in the Commonwealth of Pennsylvania, or elsewhere, to appear at any time for MAKER in any action brought against MAKER on this Note, with or without declaration filed, as of any term, and therein to confess or enter judgment against MAKER for the entire unpaid principal of this Note, together with costs of suit and reasonable attorneys' fees, and other sums secured by the Note; and for so doing this Note or a copy hereof verified by affidavit shall be sufficient warrant. The authority granted herein to confess judgment shall not be exhausted by any exercise thereof but shall continue from time to time and at all times until payment in full of all the amounts due hereunder. The remedies of PA YEE as provided in the Note and the warrants contained therein shall be cumulative and concurrent, and may be pursued singly, successively or together at the sole discretion of PA YEE, and may be exercised as often as occasion therefor shall occur; and the failure to exercise any such right or remedy shall in no event be construed as a waiver or release thereof. MAKER hereby waives presentment for payment, demand, notice of demand, notice of nonpayment or dishonor, protest and notice of protest of this Note, and all other notices in connection with the delivery, acceptance, performance, default, or enforcement of the payment of this Note, and agrees that the liability of MAKER shall be unconditional, without regard to the liability of any other party, and shall note be affected in any manner by any indulgence, extension of time, renewal, waiver or modification granted or consented to by PA YEE. MAKER consents to cny and all extensions of time, renewals, waivers, or modifications that may be granted by PA YEE with respect to the payment or other provisions of the NOTE, and to the release of the collateral or any part thereof, with or without substitution. No delay by the PA YEE or any holder in exercising any power or right hereunder shall operate as a waiver of any power or right, preclude other or further exercise thereof, or the exercise of any other power or right hereunder or otherwise; and no waiver whatever or modification of the terms hereof shall be valid unless in writing signed by the PAYEE or any holder of this Note and then only to the extent therein set forth. .J. ',' SUBORDINATION AORIIHIHT THIS AGREEMENT, MADE THIS ~ DAY OF ,~l i" , 1998 BY OeorljJe D. Berryhill, C"PLAIHTIrl'''); AND CODeroe Bank/HarrbburljJ, N.A. C"Bank") WHEREAS, leith L. Plaeterer AND Je.ie Lee Plaaterer ARE THE OWNERS OF THE PREMISES KNOWN AS 36 KELLY DRIVE, SILVER SPRING TOWNSHIP, CUMBERLAND COUNTY, PENNSYLVANIA. SEE EXHIBIT "A" ATTACHED. WHEREAS, "PLAIHTUr" IS THE HOLDER OF A CERTAIN JUDGMENT ENTERED Maroh 31, 1995 to 11995-01"2 IN THE AMOUNT OF $91,352.00 IN THE OFFICE OF THE PROTHONOTARY FOR CUMBERLAND COUNTY, WHICH IS A LIEN ON THE ABOVE MENTIONED PREMISES. WHEREAS, CODeroe Bank/Harriaburq, M.A., ITS SUCCESSORS AND ASSIONS; "BANI" HAS MADE AN ADDITIONAL LOAN FOR $249,000.00 TO BE SECURED BY A MORTGAGE ON THE ABOVE DESCRIBED PREMISES, WHICH MORTGAGE IS DATED i/:J/9~ AND IS INTENDED TO BE FORTHWITH RECORDED IN ThE I AFORESAID OFFICE OF THE RECORDER OF DEEDS. WHEREAS, THE JUDGMENT FIRST ABOVE MENTIONED IS PRIOR AND SUPERIOR TO THE LIEN OF THE LAST ABOVE MENTIONED MORTGAGE; AND WHEREAS, "~I" DESIRES THAT THE MORTGAGE LAST MENTIONED, DATED ~!!; V BE MADE A SECOND LIEN UPON THE ABOVE DESCRIBED PREMISE . NOW, THEREFORE, IN CONSIDERATION OF THE PREMISES "PLAIHTII'I''' DOES HEREBY DECLARE AND AGREE THAT THE LIEN OF THE MORTGAGE LAST MENTIONED SHALL BE A SECOND LIEN UPON THE PREMISES, SUPERIOR TO ANY RIGHT, TITLE INTEREST, CLAIM OR LIEN WHICH THE FIRST ABOVE MENTIONED JUDGMENT REPRESENTS AND SAID PRIOR JUDGMENT SHALL BE IN ALL THINGS SUBJECT AND SUBORDINATED TO THE MORTGAGE LAST ABOVE MENTIONED,