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HomeMy WebLinkAbout07-2341COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION PNC BANK, NATIONAL ASSOCIATION, DOCKET NO. O ~I --oZ..3y ~ C l u ~ ~~ . ~ ~.. Plaintiff v. :CONFESSION OF JUDGMENT DONALD J. ZYDORCZYK, Defendant :PREVIOUSLY ASSIGNED TO: N/A CONFE55ION OF JUDGMENT Pursuant to the authority contained in the warrant of attorney, the original or a copy of which is attached to the Complaint filed in this action, I appear for the Defendant and confess judgment in favor of the Plaintiff and against the Defendant as follows: a. Principal $431,928.30 b. Interest to April 19, 2007 $ 62,810.33 c. _ Appraisal Fee $ 500.00 d. Property Search Fee $ 70.00 e. Attorneys' Fees 49,473_Rf TOTAL DUE: $544,782.49, plus interest, other expenses, fees and costs Respectfully submitted, McNees Wallace & Nurick LLC Date: Apri~, 2007 By: eo S. uff, Esquire preme urt ID #24848 100 Pine eet, PO Box 1166 Hamsburg, PA 17108-1166 (717) 237-5439 Attorneys for Plaintiff COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION PNC BANK, NATIONAL ASSOCIATION, DOCKET NO. d ~ - ~3~! f l~ l.u~ ~ ~lL~ Plaintiff v. CONFESSION OF JUDGMENT DONALD J. ZYDORCZYK, Defendant :PREVIOUSLY ASSIGNED TO: N/A COMPLAINT FOR CONFESSION OF JUDGMENT UNDER RULE 2951 1. The Plaintiff, PNC Bank, National Association, is a national banking association organized and existing under the laws of the United States of America with a principal regional office located at 4242 Carlisle Pike, Camp Hill, Pennsylvania 17011 (the "Bank"). 2. The Defendant, Donald J. Zydorczyk, is an adult individual whose last known address is 2102 Brigade Road, Enola, Pennsylvania 17025 (the "Defendant") 3. The Defendant executed and delivered to the Bank a Guaranty and Suretyship Agreement dated September 14, 2004 (the "Guaranty"), a true and correct photostatic reproduction of the original of which is attached hereto as Exhibit "A" and made part hereof. 4. Under the Guaranty, the Defendant guaranteed to the Bank the payment of all amounts due to the Bank by Little Critters, Inc. d/b/a Painting Red Rhinos (the "Debtor") under a Committed Line of Credit Note dated September 14, 2004, in the original principal amount of Six Hundred Fifty Thousand Dollars ($650,000) (the "Note"), a true and correct photostatic reproduction of the original of which is attached hereto as Exhibit "B" and made part hereof. 5. The Defendant executed and delivered to the Bank a Disclosure for Confession of Judgment (the "Disclosure for Confession"), a true and correct photostatic reproduction of the original of which is attached hereto as Exhibit "C" and made a part hereof. 6. The Debtor is in default of the Debtor's obligations to make payment to the Bank as required in the Note, and the Defendant is in default of the Defendant's obligations to make payment to the Bank under the Guazanty. As a result of the Debtor's and the Defendant's defaults, all amounts outstanding under in the Note have been accelerated and aze due and payable in full under the Note and the Guazanty. 7. Judgment is not being entered by confession against a natural person in connection with a consumer credit transaction. 8. There has not been any assignment of the Guaranty or the Note. 9. Judgment has not been entered on the Guaranty in any jurisdiction. 10. An itemized computation of the amount due to the Bank by the Defendant as a result of the Defendant's default under the Guaranty is as follows: a. Principal $431,928.30 b. Interest to April 19, 2007 $ 62,810.33 c. Appraisal Fee $ 500.00 d. Property Search Fee $ 70.00 e. Attorneys' Fees $ 49,47' RF TOTAL DUE: $544,782.49 11. Interest continues to accrue at a rate at all times equal to Bank's Prime Rate in effect from time to time, plus four and three-quarters percent (4.75%). WHEREFORE, Plaintiff, PNC Bank, National Association, demands judgment against the Defendant, Donald J. Zydorczyk, in the amount of Five Hundred Forty-Four Thousand Seven Hundred Eighty-Two and 49/100 Dollars ($544,782.49), plus interest at a rate at all times equal to Bank's Prime Rate in effect from time to time, plus four and three-quarters percent (4.75%) through the date of payment, including on and after the date of entry of judgment on this Complaint, and for other expenses, fees and costs to which the Plaintiff maybe entitled. Respectfully submitted, McNees Wallace & Nurick LLC Date: April 2007 By: eo y S. Sh ff, Esquire Supreme Court ID #24848 100 Pine Street, PO Box 1166 Harrisburg, PA 17108-1166 (717) 237-5439 Attorneys for Plaintiff COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION PNC BANK, NATIONAL ASSOCIATION, :DOCKET NO. Plaintiff ; v :CONFESSION OF JUDGMENT DONALD J. ZYDORCZYK, ; Defendant :PREVIOUSLY ASSIGNED TO: N/A VERIFICATION I, Eric D. Krimmel, Vice President, for PNC Bank, National Association, being authorized to do so on behalf of PNC Bank, National Association, hereby verify that the statements made in the foregoing pleading are true and correct to the best of my information, knowledge and belief. I understand that false statements herein are made subject to the penalties of 18 Pa. C.S. Section 4904, relating to unsworn falsification to authorities. PNC BANK, NATIONAL ASSOCIATION Date: ~ f ~ ~ ~o ? By; ~ -C ~'~.J ~_-~ Eric D. Krimmel Vice President • . Guaranty and Suretyship ~ PNCBAI~K Agreement TIi~S GUARANTY AND SURETYSHIP AGREEMENT (this "Guaranty") is made and entered into as of this {~ day of September, 2004, by DONALD J. ZYDORCZYK (the "Guarantor"), with an address at 2102 Brigade Road, Enola, Pennsylvania 17025, in consideration of the extension of credit by PNC BANK, NATIONAL ASSOCIATION (the "Bank"), with an address at 8800 Tinicum Boulevard, First FIoor, Philadelphia, Pennsylvania 19153, to LITTLE CRITTERS, INC. d/b/a PAINTING RED RHINOS (the "Borrower"), and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged. I. Guaranty of Obligations. The Guarantor hereby .unconditionally guarantees, as a primary obligor, and becomes surety for, the prompt payment and performance of all loans, advances, debts, liabilities, obligations, covenants and duties owing by the Borrower to the Bank or to any other direct or indirect subsidiary of The PNC Financial Services Group, Inc., of any kind or nature, present or future (including any interest accruing thereon after maturity, or after the filing of any petition in bankruptcy, or the commencement of any insolvency, reorganization or like proceeding relating to the Borrower, whether or not a claim for post-filing or post-petition interest is allowed in such proceeding), whether direct or indirect (including those acquired by assignment or participation), absolute or contingent, joint or several, due or to become due, now existing or hereafter arising, whether or not (i) evidenced by any note, guaranty or other instrument, (ii) arising under any agreement, instrument or document, (iii) for the payment of money, (iv) arising by reason of an extension of credit, opening of a letter of credit, loan, equipment lease or guarantee, (v) under any interest or cutrertcy swap, future, option or other interest rate protection or similar agreement, (vi) under or by reason of any foreign currency transaction, forward, option or other similar transaction providing for the purchase of one currency in exchange for the sale of another currency, or in any other manner, or (vii) arising out of overdrafts on deposit or other accounts or out of electronic fiords transfers (whether by wire transfer or through automated clearing houses or otherwise) or out of the return unpaid of, or other failure of the Bank to receive final payment for, any check, item, instrument, payment order or other deposit or credit to a deposit or other account, or out of the Bank's non-receipt of or inability to collect funds or otherwise not being made whole in connection with depository or other similar arrangements; and any amendments, extensions, renewals and increases of or to any of the foregoing, and alt costs and expenses of the Bank incurred in the documentation, negotiation, modification, enforcement, collection and otherwise in connection with any of the foregoing, including reasonable attorneys' fees and expenses (hereinafter referred to collectively as the "Obligations"). If the Borrower defaults under any such Obligations, the Guarantor will pay the amount due to the Bank. Z. Nature of Guaranty; Waivers. This is a guaranty of payment and not of collection and the Bank shall not be required, as a condition of the Guarantor's liability, to make any demand upon or to pursue any of its rights against the Borrower, or to pursue any rights which may be available to it with respect to any other person who may be liable for the payment of the Obligations. This is an absolute, unconditional, in'evocable and continuing guaranty and will remain in full force and effect until all of the Obligations have been indefeasibly paid in full, and the Bank has terminated this Guaranty. This Guaranty will remain in full force and effect even if there is no principal balance outstanding under the Obligations at a particular time or from time to time. This Guaranty will not be affected by any surrender, exchange, acceptance, compromise or release by the Bank of any other party, or any other guaranty or any security held by it for any of the Obligations, by any failure of the Bank to take any steps to perfect or maintain its lien or security interest in or to preserve its rights to any security or other collateral for any of the Obligations or any guaranty, or by any irregularity, unenforceability or invalidity of any of the Obligations or any part thereof or any security or other guaranty thereof. The Guarantor's obligations hereunder shall not be affected, modified or impaired by any counterclaim, set-off, recoupment, deduction or defense based upon any claim the Guarantor may have (directly or indirectly) against the Borrower or the Bank, except payment or performance of the Obligations. x h~, 1~~,t «A» • Notice of acceptance of this Guaranty, notice of extensions of credit to the Borrower from time to time, notice of default, diligence, presentment, notice of dishonor, protest, demand for payment, and any defense based upon the Bank's failure to comply with the notice requirements under Sections 9-611 and 9-612 of the Uniform Cornmercial Code as in effect from time to time are hereby waived. The Guarantor waives all defenses based on suretyship or impairment of collateral. The Bank at any time and from time to time, without notice to or the consent of the Guarantor, and without impairing or releasing, discharging or modifying the Guarantor's liabilities hereunder, may (a) change the manner, place, time or terms of payment or performance of or interest rates on, or other terms relating to, any of the Obligations; (b) renew, substitute, modify, amend or alter, or grant consents or waivers relating to any of the Obligations, any other guaranties, or any security for any Obligations or guaranties; (c) apply any and all payments by whomever paid or however realized including any proceeds of any collateral, to any Obligations of the Borrower in such order, manner and amount as the Bank may determine in its sole discretion; (d) settle, compromise or deal with any other person, including the Borrower or the Guarantor, with respect to any Obligations in such manner as the Bank deems appropriate in its sole discretion; (e) substitute, exchange or release any security or guaranty; or (f) take such actions and exercise such remedies hereunder as provided herein. 3. Repayments or Recovery from the Bank. If any demand is made at any time upon the Bank for the repayment or recovery of any amount received by it in payment or on account of any of the Obligations and if the Bank repays all or any part of such amount by reason of any judgment, decree or order of any court or administrative body or by reason of any settlement or compromise of any such demand, the Guarantor will be and remain liable hereunder for the amount so repaid or recovered to the same extent as if such amount had never been received originally by the Bank. The provisions of this section will be and remain effective notwithstanding any contrary action which may have been taken by the Guarantor in reliance upon such payment, and any such contrary action so taken will be without prejudice to the Bank's rights hereunder and will be deemed to have been conditioned upon such payment having become fnal and irrevocable. 4. Financial Statements. Unless compliance is waived in writing by the Bank or until all of the Obligations have been paid in full, the Guarantor will promptly submit to the Bank such information relating to the Guarantor's affairs (including but not limited to annual financial statements and tax returns for the Guarantor) or any security for the Guaranty as the Bank may reasonably request. 5. Enforceability of Obligations. No modification, limitation or discharge of the Obligations arising out of or by virtue of any bankruptcy, reorganization or similar proceeding for relief of debtors under federal or state law will affect, modify, limit or discharge the Guarantor's liability in any manner whatsoever and this Guaranty will remain and continua in full force and effect and will be enforceable against the Guarantor to the same extent and with the same force and effect as if any such proceeding had not been instituted. The Guarantor waives all rights and benefits which might accrue to it by reason of any such proceeding and will be liable to the full extent hereunder, irrespective of any modification, limitation or discharge of the liability of the Boaower that may result from any such proceeding. 6. Events of Default. The occurrence of any of the following shall be an "Event of Default": (i) any Event of Default (as defined in any of the Obligations); (ii) any default under any of the Obligations that dots not have a defined set of "Events of Default" and the lapse of any notice or cure period provided in such Obligations with respect to such default; (iii) demand by the Bank under any of the Obligations that have a demand feature; (iv) the Guarantor's failure to perform any of its obligations hereunder; (v) the falsity, inaccuracy or material breach by the Guarantor of any written wan: anty, representation or statement made or furnished to the Bank by or on behalf of the Guarantor; or (vi) the termination or attempted termination of this Guaranty. Upon the occurrence of any Event of Default, (a) the Guarantor shall pay to the Bank the amount of the Obligations; or (b) on demand of the Bank, the Guarantor shall immediately deposit with-the Bank, in U.S. dollars, all amounts due or to become due under the Obligations, and the Bank may at any time use such funds to repay the Obligations; or -2- • • (c) the Bank in its discretion may exercise with respect to any collateral any one or more of the rights and remedies provided a secured party under the applicable version of the Uniform Commercial Code; or (d) the Bank in its discretion may exercise from time to time any other rights and remedies available to it at law, in equity or otherwise. 7. lti¢ht of Setoff. In addition to all liens upon and rights of setoff against the Guarantor's money, securities or other property given to the Bank by law, the Bank shall have, with respect to the Guarantor's obligations to the Bank under this Guaranty and to the extent permitted by law, a contractual possessory security interest in and a contractual right of setoff against, and the Guarantor hereby grants Bank a security interest in, and hereby assigns, conveys, delivers, pledges and transfers to the Bank all of the Guarantor's right, title and interest in and to, all of the Guarantor's deposits, moneys, securities and other property now or hereafter in the possession of or on deposit with, or in transit to, the Bank or any other direct or indirect subsidiary of The PNC Financial Services Group, Inc., whether held in a general or special account or dtposit, whether held jointly with someone else, or whether held for safekeeping or otherwise, excluding, however, all 1RA, Keogh, and trust accounts. Every such security interest and right of setoff may be exercised without demand upon or notice to the Guarantor. Every such right of setoff shall be deemed to have been exercised immediately upon the occurrence of an Event of Default hereunder without any action of the Bank, although the Bank may enter such setoff on its books and records at a later time. 8. Collateral. This Guaranty is secured by the property described in any collateral security documents which the Guarantor executes and delivers to the Bank and by such other collateral as previously may have been or may in the future be granted to the Bank to secure any Obligations of the Guarantor to the Bank 9. Costs. To the extent that the Bank incurs any costs or expenses in protecting or enforcing its rights under the Obligations or this Guaranty, including reasonable attorneys' fees and the costs and expenses of litigation, such costs and expenses will be due on demand, wilt be included in the Obligations and will bear interest from the incurring or payment thereof at the Default Rate (as defined in any of the Obligations). 10. Postponement of Subrogation. Until the Obligations are indefeasibly paid in full, expire, are terminated and are not subject to any right of revocation or rescission, the Guarantor postpones and subordinates in favor of the Bank or its designee (and any assignee or potential assignee) any and all rights which the Guarantor may have to (a) assert any claim whatsoever against the Bon'ower based on subrogation, exoneration, reimbursement, or indemnity or any right of recourse to security for the Obligations with respect to payments made hereunder, and (b) any realization on any property of the Borrower, including participation in any marshalling of the Borrower's assets. 11. Power to Confess Judement. The Guarantor hereby empowers any attorney of any court of record, after the occurrence of any Event of Default hereunder, to appear for the Guarantor and, with or without complaint filed, confess judgment, or a series of judgments, against the Guarantor in favor of the Bank for the amount of the Obligatlons and an attorney's commission of the greater of 10% of such principal and interest or 51,000 added as a reasonable attorney's fee, and for doing so, this Guaranty or a copy verified by affidavit shall be a sufficient warrant. The Guarantor hereby forever waives and releases all errors in said proceedings and all rights of appeal and all relief from any and all appraisement, stay or exemption laws of any state now in force or hereafter enacted. No single exercise of the foregoing power to confess judgment, or a series of judgments, shall be deemed to• exhaust the power, whether or not any such exercise shall be held by any court to be invalid, voidable, or void, but the power shall continue undiminished and it may be exercised from time to time as often as the Bank shall elect until such time as the Bank shall have received payment in full of the Obligations and costs. Nohvithstanding the attorney's commission provided for in the preceding paragraph (which is included in the Fvarrant for purposes of establishing a sum certain), the amount of -3- • • attorneys' fees that the Bank may recover from the Guarantor shall not exceed the aMual attorneys' fees Incurred by the Bank. 12. Notices. All notices, demands, requests, consents, approvals and other communications required or permitted hereunder ("Notices") must be in writing and will be effective upon receipt. Notices may be given in any manner to which the Bank and the Guarantor may separately agree, including electronic mail. Without limiting the foregoing, first-class mail, facsimile transmission and commercial courier service are hereby agreed to as acceptable methods for giving Notices. Regardless of the manner in which provided, Notices may be sent to addresses for the Bank and the Guarantor as set forth above or to such other address as either may give to the other for such purpose in accordance with this section. 13. Preservation of ltiehts. No delay or omission on the Bank's part to exercise any right or power arising hereunder will impair any such right or power or be considered a waiver of any such right or power, nor will the Bank's action or inaction impair any such right or power. The Bank's rights and remedies hereunder are cumulative and not exclusive of any other rights or remedies which the Bank may have under other agreements, at law or in equity. The Bank may proceed in any order against the Borrower, the Guarantor or any other obligor of, or collateral securing, the Obligations. 14. Ille alt If any provision contained in this Guaranty should be invalid, illegal or unenforceable in any respect, it shall not affect or impair the validity, legality and enforceability of the remaining provisions of this Guaranty. 15. Changes in Writing. No modification, amendment or waiver of, or consent to any departure by the Guarantor from, any provision of this Guaranty will be effective unless made in a writing signed by the Bank, and then such waiver or consent shall be effective only in the specific instance and for the purpose for which given. No notice to or demand on the Guarantor will entitle the Guarantor to any other or further notice or demand in the same, similar or other circumstance. 16. Entire A¢reement. This Guaranty (including the documents and instruments referred to herein) constitutes the entire agreement and supersedes all other prior agreements and understandings, both written and oral, between the Guarantor and the Bank with respect to the subject matter hereof; provided, however, that this Guaranty is in addition to, and not in substitution for, any other guarantees from the Guarantor to the Bank. 17. Successors and Assigns. This Guaranty will be binding upon and inure to the benefit of the Guarantor and the Bank and their respective heirs, executors, administrators, successors and assigns; vided however, that the Guarantor may nvt assign this Guaranty in whole or in part without the Bank's prior written consent and the Bank at qny time may assign this Guaranty in whole or in part. 18. Interuretation. In this Guaranty, unless the Bank and the Guarantor otherwise agree in writing, the singular includes the plural and the plural the singular; references to statutes are to be construed as including all statutory provisions consolidating, amending or replacing the statute referred to; the word "or" shall be deemed to include "and/or", the words "including", "includes" and "include" shall be deemed to be followed by the words "without limitation"; and references to sections or exhibits are to those of this Guaranty. Section headings in this Guaranty are included for convenience of reference only and shall not constitute a part of this Guaranty for any other purpose. If this Guaranty is executed by more than one party as Guarantor, the obligations of such persons or entities will be joint and several. 19. Indemnity. The Guarantor agrees to indemnify each of the Bank, each legal entity, if any, who controls the Bank and cacti of their respective directors, officers and employees (the "Indemnified I'arties'~, and to hold each Indemnified Party harmless from and against, any and all claims, damages, losses, liabilities and expenses (including all fees and charges of internal or external counsel with whom any Indemnified Party may consult and all expenses of litigation and preparation therefor) which any Indemnified Pariy may incur or which -4- • ~ may be asserted against any Indemnified Party by any person, entity or governmental authority (including any person or entity claiming derivatively on behalf of the Guarantor), in connection with or arising out of or relating to the matters referred to in this Guaranty, whether (a) arising from or incurred in connection with any breach of a representation, warranty or covenant by the Guarantor, or (b) arising out of or resulting from any suit, action, claim, proceeding or governmental investigation, pending or threatened, whether based on statute, regulation or order, or tort, or contract or otherwise, before any court or governmental authority; rop vided, however, that the foregoing indemnity agreement shall not apply to any claims, damages, losses, liabilities and expenses solely attributable to an Indemnified Party`s gross negligence or willful misconduct. The indemnity agreement contained in this Section shall survive the termination of this Guaranty and assignment of any rights hereunder. The Guarantor may participate at its expense in the defense of any such claim. 20. Governing Law and Jurisdiction. This Guaranty has been delivered to and accepted by the Bank and will be deemed to be made in the State where the Bank's office indicated above is located. Tests GUARANTY WILL BE INTERPRETED AND THE RIGHTS AND LIABILITIES OF THE BANK AND THE GUARANTOR DETERMINED IN ACCORDANCE WITH THE LAWS OF THE STATE WHERE THE BANK'S OFFICE INDICATED ABOVE IS LOCATED, EXCLUDING ITS CONFLICT OF LAWS RULES. The Guarantor hereby irrevocably consents to the exclusive jurisdiction of any state or federal court in the county or judicial district where the Bank's office indicated above is located; provided that nothing contained in this Guaranty will prevent the Bank from bringing any action, enforcing any award or judgment or exercising any rights against the Guarantor individually, against any security or against any property of the Guarantor within any other county, state or other foreign or domestic jurisdiction. The Guarantor acknowledges and agrees that the venue provided above is the most convenient forum for both the Bank and the Guarantor. The Guarantor waives any objection to venue and any objection based on a more convenient forum in any action instituted under this Guaranty. Z1. Equal Credlt Oaoortunity Act. If the Guarantor is not an "applicant for credit" under Section 202.2 (e) of the Equal Credit Opportunity Act of 1974 ("ECOA"), the Guarantor acknowledges that (i) this Guaranty has been executed to provide credit support for the Obligations, and (ii) the Guarantor was not required to execute this Guaranty in violation of Section 202.7(d) of the ECOA. 22. Aathorization to Obtain Credit Reuorts. By signing below, each Guarantor who is an individual provides written authorizarion to the Bank or its designee (and any assignee or potential assignee) to obtain the Guarantor's personal credit profile from one or more national credit bureaus. Such authorization shall extend to obtaining a credit profile in considering this Guaranty and subsequently for the purposes of update, renewal or extension of such credit or additional credit and for reviewing or collecting the resulting account. 23. WAIVER OF JURY TRIAL. THE GUARANTOR IRREVOCABLY WAIVES ANY AND ALL RIGHT THE GUARANTOR MAY HAVE TO A TRIAL BY JURY IN ANY ACTION, PROCEEDING OR CLAIM OF ANY NATURE RELATING TO THIS GUARANTY, ANY DOCUMENTS EXECUTED 1N CONNECTION WITH THIS GUARANTY OR ANY TRANSACTION CONTEMPLATED IN ANY OF SUCH DOCUMENTS. THE GUARANTOR ACKNOWLEDGES THAT THE FOREGOING WAIVER IS KNOWING AND VOLUNTARY. The Guarantor acknowledges that it has read and understood all the provisions of this Guaranty, including the confession of judgment and waiver of jury trial, and has been advised by counsel as necessary or appropriate. -5- Y • WITNESS the due execution hereof as a document under seal, as of the date first written above, with the intent to be legally bound hereby. WITNESS /ATTEST: r'~ / (Ind' ual) Print Name: G ~~ ~ - xt't~e ~' d V Print Name: J. Zydorczyk (SEAL) -6- Committed Line of Credit Note ~ PNCBANC $650,000.00 September ~ ~ , 2004 FOR VALUE RECEIVED, LITTLE CRITTERS, INC. D/B/A PAINTING RED RHINOS (the "Borrower"), with an address at 701-A W. Simpson Street, Mechanicsburg, Pennsylvania 17055, promises to pay to the order of PNC BANK, NATIONAL ASSOCIATION (the "Bank"), in lawful money of the United States of America in immediately available funds at its offices located at 8800 Tinicum Boulevard, First Floor, Philadelphia, Pennsylvania 19153, or at such other location as the Bank may designate from time to time, the principal sum of SIX HUNDRED FIFTY THOUSAND DOLLARS ($650,000.00) (the "Facility") or such lesser amount as may be advanced to or for the benefit of the Borrower hereunder, together with interest accruing on the outstanding principal balance from the date hereof, all as provided below. 1. Rate of Interest. Amounts outstanding under this Note will bear interest at a rate per annum which is at all times equal to the Prime Rate plus one and three-quarters percent (1.75%). Interest wiU be calculated based on the actual number of days that principal is outstanding over a year of 360 days. As used herein, "Prime Rate" shall mean the prime rate in effect on the first business day of the month in which an interest rate change occurs, as published in the Wall Street Journal on the next business day. The Prime Rate is not tied to any external rate of interest or index, and does not necessarily reflect the lowest rate of interest actually charged by the Bank to any particular class or category of customers. If and when the Prime Rate changes, the rate of interest on this Note will change automatically without notice to the Borrower, effective on the date of any such change. In no event will the rate of interest hereunder exceed the maximum rate allowed by law. 2. Advances. The Borrower may borrow, repay, but not rebon-ow, hereunder until the Expiration Date, subject to the terms and conditions of this Note and the Loan Documents (as defined herein). The "Expiration Date" shall mean September _, 2009, or such later date as may be designated by the Bank by written notice from the Bank to the Borrower. The Borrower acknowledges and agrees that in no event will the Bank be under any obligation to extend or renew the Facility or this Note beyond the Expiration Date. In no event shall the aggregate unpaid principal amount of advances under this Note exceed the face amount of this Note. 3. Advance Procedures. A request for advance made by telephone must be promptly confirmed in writing by such method as the Bank may require. The Borrower authorizes the Bank to accept telephonic requests for advances, and the Bank shall be entitled to rely upon the authority of any person providing such instructions. The Borrower hereby indemnifies and holds the Bank harmless from and against any and all damages, losses, liabilities, costs and expenses (including reasonable attorneys' fees and expenses) which may arise or be created by the acceptance of such telephone requests or making such advances. The Bank will enter on its books and records, which entry when made will be presumed correct, the date and amount of each advance, as well as the date and amount of each payment made by the Borrower. 4. Payment Terms. Accrued interest will be due and payable on the first day of each month, beginning with the payment due on October 1, 2004. The outstanding principal balance and any accrued but unpaid interest shall be due and payable on the Expiration Date. If any payment under this Note shall become due on a Saturday, Sunday or public holiday under the laws of the State where the Bank's office indicated above is located, such payment shall be made on the next succeeding business day and such extension of time shall be included in computing interest in connection with such payment. The Borrower hereby authorizes the Bank to charge the Borrower's deposit account at the Bank for any payment when due hereunder. Payments received will be applied to charges, fees and expenses (including attorneys' fees), accrued interest and principal in any order the Bank may choose, in its sole discretion. ~~ 5. Late Payments: Defaalt Rate. If the Bon ower fails to make any payment of principal, interest or other amount coming due pursuant to the provisions of this Note within fifteen (15) calendar days of the date due and ~~1~„10.~ "~» • ~ payable, the Borrower also shall pay to the Bank a late charge equal to the lesser of five percent (5%) of the amount of such payment or $100.00 (the "Late Charge"). Such fifteen (15) day period shall not be construed in any way to extend the due date of any such payment. Upon maturity, whether by acceleration, demand or otherwise, and at the Bank's option upon the occurrence of any Event of Default (as hereinafter defined) and during the continuance thereof, amounts outstanding under this Note shall bear interest at a rate per annum (based on the actual number of days that principal is outstanding over a year of 360 days) which shall be three percentage points (3%) in excess of the interest rate in effect from time to time under this Note but not more than the maximum rate allowed by law (the "Default Rate"). The Default Rate shall continue to apply whether or not judgment shall be entered on this Note. Both the Late Charge and the Default Rate are imposed as liquidated damages for the purpose of defraying the Bank's expenses incident to the handling of delinquent payments, but are in addition to, and not in lieu of, the Bank's exercise of any rights and remedies hereunder, under the other Loan Documents or under applicable law; and any fees and expenses of any agents or attorneys which the Bank may employ. In addition, the Default Rate reflects the increased credit risk to the Bank of carrying a loan that is in default. The Borrower agrees that the Late Charge and Default Rate aze reasonable forecasts of just compensation for anticipated and actual harm incurred by the Bank, and that the actual halm incurred by the Bank cannot be estimated with certainty and without difficulty. 6. Prenavment. The indebtedness evidenced by this Note maybe prepaid in whole or in part at any time without penalty. 7. Other Loan Documents. This Note is issued in connection with a loan agreement between the Borrower and the Bank, dated on or before the date hereof, and the other agreemtnts and documents executed and/or delivered in connection therewith or referred to therein, the terms of which are incorporated herein by reference (as amended, modified or renewed from time to time, collectively the "Loan Documents"), and is secured by the property (if any) described in the Loan Documents and by such other collateral as previously may have been or may in the future be granted to the Bank to secure this Note. S. Events of Default. The occurrence of any of the following events will be deemed to be an "Event of Default" under this Note: (i) the nonpayment of any principal, interest or other indebtedness under this Note when due; (ii) the occurrence of any event of default or any default and the lapse of any notice or cure period, or any Obligor's failure to observe or perform any covenant or other agreement, under or contained in any Loan Document or any other document now or in the future evidencing or securing any debt, liability or obligation of any Obligor to the Bank; (iii) the filing by or against any Obligor of any proceeding in bankruptcy, receivership, insolvency, reorganization, liquidation, conservatorship or similar proceeding (and, in the case of any such proceeding instituted against any Obligor, such proceeding is not dismissed or stayed within 30 days of the commencement thereof, provided that the Bank shall not be obligated to advance additional funds hereunder during such period); (iv) any assignment by any Obligor for the benefit of creditors, or any levy, garnishment, attachment or similaz proceeding is instituted against any property of any Obligor held by or deposited with the Bank; (v) a default with respect to any other indebtedness of any Obligor for borrowed money, if the effect of such default is to cause or permit the acceleration of such debt; (vi) the commencement of any foreclosure or forfeiture proceeding, execution or attachment against any collateral securing the obligations of any Obligor to the Bank; (vii) the entry of a final judgment against any Obligor and the failure of such Obligor to discharge tbe judgment within ten (YO) days of the entry thereof; (viii) any material adverse change in any Obligor's business, assets, operations, financial condition or results of operations; (ix) any Obligor ceases doing business as a going concern; (x) any representation or warranty made by any Obligor to the Bank in any Loan Document or any other documents now or in the future evidencing or securing the obligations of any Obligor to the Bank, is false, erroneous or misleading in any material respect; {xi} if this Note or any guarantee executed by any Obligor is secured, the failure of any Obligor to provide the Bank with additional collateral if in the Bank's opinion at any time or times, the market value of any of the collateral securing this Note or any guarantee has depreciated below that required pursuant to the Loan Documents or, if no specific value is so required, then in an amount deemed material by the Bank; (xii) the revocation or attempted revocation, in whole or in part, of any guarantee by any Obligor; or (xiii) the death, incazceration, indictment or legal incompetency of any individual Obligor or, if any -2- C:\Documenu and Seltings\Chuy111..ocal Settings\Ttnrtporary Internet Fika\Content.1E51413GHB121\Nae.doc • • Obligor is a partnership or limited liability company, the death, incarceration, indictment or legal incompetency of any individual general partner or member. As used herein, the term "Obligor" means any Borrower and any guarantor of, or any pledgor, mortgagor or other person or entity providing collateral support for, the Bon: ower's obligations to the Bank existing on the date of this Note or arising in the future. Upon the occurrence of an Event of Default: (a) the Bank shall be under no further obligation to make advances hereunder; (b) if an Event of Default specified in clause (iii) or (iv) above shall occur, the outstanding principal balance and accrued interest hereunder together with any additional amounts payable hereunder shall be immediately due and payable without demand or notice of any kind; (c) if any other Event of Default shall occur, the outstanding principal balance and accrued interest hereunder together with any additional amounts payable hereunder, at the Bank's option and without demand or notice of any kind, may be accelerated and become immediately due and payable; (d) at the Bank's option, this Note will bear interest at the Default Rate from the date of the occurrence of the Event of Default; and (e) the Bank may exercise from time to time any of the rights and remedies available under the Loan Documents or under applicable law. 9. Power to Confess Judement. The Borrower hereby empowers any attorney of any court of record, after the occurrence of any Event of Default hereunder, to appear for the Borrower and, with or without complaint filed, confess judgment, or a series of judgments, against the Borrower in favor of the Bank or any holder hereof for the entire principal balance of this Note, all accrued interest and all other amounts due hereunder, together with costs of suit and an attorney's commission of the greater of 10% of such principal and interest or $1,000 added as a reasonable attorney's fee, and for doing so, this Note or a copy verified by affidavit shall be a sufficient warrant. The Borrower hereby forever waives and releases all errors in said proceedings and all rights of appeal and all relief from any and all appraisement, stay or exemption laws of any state now in force or hereafter enacted. Interest on any such judgment shall accrue at the Default Rate. No single exercise of the foregoing power to confess judgment, or a series of judgments, shall be deemed to exhaust the power, whether or not any such exercise shall lie held by sny court to be invalid, voidable, or void, but the power shall continue undiminished and it may be exercised from dme to time as often as the Bank shall elect until such time as the Bank shall have received payment in Tull of the debt, interest and costs. Notwithstanding the attorney's commission provided for in the preceding paragraph (which is included in the warrant for purposes of establishing a sum certain), the amount of attorneys' fees that the Bank may recover from the Borrower shall not exceed the actual attorneys' fees incurred by the Bank. 10. Right of Setoff. In addition to all liens upon and rights of setoff against the Borrower's money, securities or other property given to the Bank by law, the Bank shall have, with respect to the Borrower's obligations to the Bank under this Note and to the extent permitted by law, a contractual possessory security interest in and a contractual right of setoff against, and the Borrower hereby grants the Bank a security interest in, and hereby assigns, conveys, delivers, pledges and transfers to the Bank, all of the Bon ower's right, title and interest in and to, all of the Borrower's deposits, moneys, securities and other property now or hereafter in the possession of or on deposit with, or in transit to, the Bank or any other direct or indirect subsidiary of The PNC Financial Services Group, Inc., whether held in a general or special account or deposit, whether held jointly with someone else, or whether held for safekeeping or otherwise, excluding, however, all IRA, Keogh, and trust accounts. Every such security interest and right of setoff may be exercised without demand upon or notice to the Borrower. Every such right of setoff shall be deemed to have been exercised immediately upon the occun~ence of an Event of Default hereunder without any action of the Bank, although the Bank may enter such setoff on its books and records at a later time. 11. Indemnity. The Borrower agrees to indemnify each of the Bank, each legal entity, if any, who controls, is controlled by or is under common control with the Bank, and each of their respective directors, officers and employees (the "Indemnified Parties"), and to hold each Indemnified Party harmless from and against any and all claims, damages, losses, liabilities and expenses (including all fees and charges of internal or external counsel -3- C:\Documenu and SettinQa\Cheryl\L.acal Scuings\Temporary Interne! FiiealContent.lESWHOHa1ZlWote.doc • ~ with whom any Indemnified Party may consult and all expenses of litigation and preparation therefor) which any Indemnified Party may incur or which may be asserted against any Indemnified Party by any person, entity or governmental authority (including any person or entity claiming derivatively on behalf of the Borrower), in connection with or arising out of or relating to the matters referred to in this Note or in the other Loan Documents or the use of any advance hereunder, whether (a) arising from or incurred in connection with any breach of a representation, warranty or covenant by the Bonower, or (b) arising out of or resulting from any suit, action, claim, proceeding or governmental investigation, pending or threatened, whether based on statute, regulation or order, or tort, or contract or otherwise, before any court or governmental authority; provided, however, that the foregoing indemnity agreement shall not apply to any claims, damages, losses, liabilities and expenses solely attributable to an Indemnified Party's gross negligence or willful misconduct. The indemnity agreement contained in this Section shall survive the termination of this Note, payment of any advance hereunder and the assignment of any rights hereunder. The Bon•ower may participate at its expense in the defense of any such action or claim. 12. Miscellaneous. All notices, demands, requests, consents, approvals and other communications required or permitted hereunder ("Notices") must be in writing (except as may be agreed otherwise above with respect to borrowing requests) and will be effective upon receipt. Notices may be given in any manner to which the parties may separately agree, including electronic mail. Without limiting the foregoing, first-class mail, facsimile transmission and commercial courier service are hereby agreed to as acceptable methods for giving Notices. Regardless of the manner in which provided, Notices maybe sent to a party's address as set forth above or to such other address as any party may give to the other for such purpose in accordance with this paragraph. No delay or omission on the Bank's part to exercise any right or power arising hereunder will impair any such right or power or be considered a waiver of any such right or power, nor will the Bank's action or inaction impair any such right or power. The Bank's rights and remedies hereunder are cumulative and not exclusive of any other rights or remedies which the Bank may have under other agreements, at law or in equity. No modification, amendment or waiver of, or consent to any departure by the Borrower from, any provision of this Note will be effective unless made in a writing signed by the Bank, and then such waiver or consent shall be effective only in the specific instance and for the purpose for which given. The Borrower agrees to pay on demand, to the extent permitted by law, all costs and expenses incurred by the Bank in the enforcement of its rights in this Note and in any security therefor, including without limitation reasonable fees and expenses of the Bank's counsel. if any provision of this Note is found to be invalid, illegal or unenforceable in any respect by a court, all the other provisions of this Note will remain in full force and effect. The Borrower and all other makers and indorsers of this Note hereby forever waive presentment, protest, notice of dishonor and notice ofnon-payment. The Borrower also waives all defenses based on suretyship or impairment of collateral. If this Note is executed by more than one Borrower, the obligations of such persons or entities hereunder will be joint and several. This Note shall bind the Borrower and its heirs, executors, administrators, successors and assigns, and the benefits hereof shall inure to the benefit of the Bank and its successors and assigns; vided, however, that the Borrower may not assign this Note in whole or in part without the Bank's written consent and the Bank at any time may assign this Note in whole or in part. This Note has been delivered to and accepted by the Bank and will be deemed to be made in the State where the Bank's office indicated above is located. THIS NOTE WII.I., BE INTERPRETED AND THE RIGHTS AND LIABILITIES OF THE BANK AND THE BORROWER DETERMINED IN ACCO1tDANCE WITH THE LAWS OF THE STATE WHERE THE BANK'S OFFICE INDICATED ABOVE IS LOCATED, EXCLUDING ITS CONFLICT OF LAWS RULES. The Borrower hereby irrevocably consents to the exclusive jurisdiction of any state or federal court in the county or judicial district where the Bank's office indicated above is located; provided that nothing contained in this Note will prevent the Bank from bringing any action, enforcing any award or judgment or exercising any rights against the Borrower individually, against any security or against any property of the Borrower within any other county, state or other foreign or domestic jurisdiction. The Borrower acknowledges and agrees that the venue provided above is the most convenient forum for both the Bank and the Borrower. The Borrower waives any objection to venue and any objection based on a more convenient forum in any action instituted under this Note. -4- C:\Dacumenta and Satin`a\Cderyl\I.ocal Settinea\Temporary Internet Fitas\Content.lES\46GHB1211Note.doc • ~ 13. Authorization to Obtain Credit Resorts. By signing below, each Borrower who is an individual provides written authorization to the Bank or its designee (and any assignee or potential assignee hereofl to obtain the Borrower's personal credit profile from one or more national credit bureaus. Such authorization shall extend to obtaining a credit profile in considering this Note and subsequently for the purposes of update, renewal or extension of such credit or additional credit and for reviewing or collecting the resulting account. 14. WAIVER OF JURY TRIAL. THE BORROWER IRREVOCABLY WAIVES ANY AND ALL RIGHTS THE BORROWER MAY HAVE TO A TRIAL BY JURY IN ANY ACT10N, PROCEEDING OR CLAIM OF ANY NATURE RELATING TO THIS NOTE, ANY DOCUMENTS EXECUTED IN CONNECTION WITH THIS NOTE OR ANY TRANSACTION CONTEMPLATED IN ANY OF SUCH DOCUMENTS. THE BORROWER ACKNOWLEDGES THAT THE FOREGOING WAIVER IS KNOWING AND VOLUNTARY. The Borrower acknowledges that it has read and understood all the provisions of this Note, including the confession of judgment and waiver of jury trial, and has been advised by counsel as necessary or appropriate. WITNESS the due execution hereof as a document under seal, as of the date first written above, with the intent to be legally bound hereby. WITNESS /ATTEST: N /W . Print Name: LI S~c.. ~ ~~a~y Title: (Include title only if an officer of entity signing to the right) LITTLE CRITTERS, IlV /a ~NTING RED RHINOS / By. (SEAL) Print Name: Don J. Zydorczyk Title: President -5- C:~Documeata and SaUngclCherylitacal Seuiags~Temporuy laternet Fikc~Conte~u.ffiSWfil3HB1Z1gVote.doc t • • Disclosure for Confession of Judgment ~PNCBAIVC Undersigned: Donald J. Zydorczyk 2102 Brigade Road EDOIa, PA 17025 Lender: PNC Bank, National Association 8800 Tinicum Boulevard Philadelphia, PA 19153 The undersigned has executed, and/or is executing, on or about the date hereof, the following document(s) under which the undersigned is obligated to repay monies to Lender: 1. Guaranty and Suretyship Agreement re: $650,000 Line of Credit Note 2. Open-End Mortgage and Security Agreement -Residential A. THE UNDERSIGNED ACKNOWLEDGES AND AGREES THAT THE ABOVE DOCUMENTS CONTAl1V PROVISIONS UNDER WHICH LENDER MAY ENTER JUDGMENT BY CONFESSION AGAINST THE UNDERSIGNED. BEING FULLY AWARE OF ITS RIGHTS TO PR10R NOTICE AND A HEARING ON THE VALIDI'T'Y OF ANY JUDGMENT OR OTHER CLAIMS THAT MAY BE ASSERTED AGAINST TT BY LENDER THEREUNDER BEFORE JUDGMENT IS ENTERED, THE UNDERSIGNED HEREBY FREELY, KNOWINGLY AND INTELLIGENTLY WAIVES THESE RIGHTS AND EXPRESSLY AGREES AND CONSENTS TO LENDER'S ENTERING JUDGMENT AGAINST IT BY CONFESSION PURSUANT TO THE TERMS THEREOF. B. THE UNDERSIGNED ALSO ACKNOWLEDGES AND AGREES THAT THE ABOVE DOCUMENTS CONTAIN PROVISIONS UNDER WHICH LENDER MAY, AFTER ENTRY OF JUDGMENT AND WITHOUT EITHER NOTICE OR A HEARING, FORECLOSE UPON, ATTACH, LEVY, TAKE POSSESSION OF OR OTHERWISE SEIZE PROPERTY OF THE UNDERSIGNED IN FULL OR PARTIAL PAYMENT OF THE JUDGMENT. BEING FULLY AWARE OF ITS RIGHTS AFTER JUDGMENT IS ENTERED (INCLUDING THE RIGHT TO MOVE TO OPEN OR STRIKE THE JUDGMENT), THE UNDERSIGNED HEREBY FREELY, KNOWINGLY AND INTELLIGENTLY WAIVES ITS RIGHTS TO NOTICE AND A HEARING AND EXPRESSLY AGREES AND CONSENTS TO LENDER'S TAKING SUCH ACTIONS AS MAY HE PERMITTED UNDER APPLICABLE STATE AND FEDERAL LAW WITHOUT PRIOR NOTICE TO THE UNDERSIGNED. C. The undersigned certifies that a representative of Lender specifically called the confession of judgment provisions in the above docurents to the attention of the undersigned, and/or that the undersigned was represented by legal counsel in connection with the above documents. D. The undersigned hereby certifies that his annual income exceeds $10,000; that above refer to all persons and entities signing below; and that the undersigned received a cs Dated: September ~, 2004 C:1Docurnents and Settings\CheryllLocal Settings\Temporary Internet FileslContent.IESWEGHBIZI\Disclosure-Zydorcryk.doc undersigned" of signing. ~ ra ~ ~ <, -~+ ,-; ~. ~ w ~. ~~ ~~ ~~ ~` ~ z COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION PNC BANK, NATIONAL ASSOCIATION, :DOCKET NO. 07 - ~3y1 ` Plaintiff ; ~~ ~' ~ ~ ~' v :CONFESSION OF JUDGMENT DONALD J. ZYDORCZYK, Defendant :PREVIOUSLY ASSIGNED TO: N/A AFFIDAVIT OF NON-MILITARY SERVICE TO THE PROTHONOTARY: I do certify, to the best of my knowledge, that the Defendant, Donald J. Zydorczyk, in the above-captioned action is not presently on active or nonactive military status. Respectfully submitted, McNees Wallace & Nurick LLC Date: April ' , 2007 B eo ey ,Esquire Supreme Court ID #24848 100 Pine Street, PO Box 1166 Harrisburg, PA 17108-1166 (717) 237-5439 Attorneys for Plaintiff '`' o - ~' -~ ~-~ ~. m ~- : ;~ .-~ ~:::. -rr ~, ~~-1 ~.. spa ~ =~ ,.: -t ~ ca ~ ~~ © c~ cx~ ~ COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION PNC BANK, NATIONAL ASSOCIATION, :DOCKET NO. ~"f -o2~~if( l~ l U ~ L~ Plaintiff "~' ") ~• :CONFESSION OF JUDGMENT l DONALD J. ZYDORCZYK, Defendant :PREVIOUSLY ASSIGNED TO: N/A CERTIFICATE OF ADDRESSES I hereby certify that the precise address of Plaintiff, PNC Bank, National Association, is 4242 Carlisle Pike, Camp Hill, Pennsylvania 17011; and that the last known address of the Defendant, Donald J. Zydorczyk, is 2102 Brigade Road, Enola, PA 17025. Respectfully submitted, Date: April, 2007 McNees Wallace & Nurick LLC By: Spy .Shull, Esquire Supr Court ID #24848 100 ne Street, PO Box 1166 Harrisburg, PA 17108-1166 (717) 237-5439 Attorneys for Plaintiff C~ '~'~.. C 7 ~, ,~ -C, ~ m ..i 3 ~ ; ,. -'.. . w L,~ ~= ~: ~ -r; -~'~ ~~ c,~ r" ~ ' ~V ~-. TT 1 _-j ~ ^~ ~ "~ COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION ~ '- PNC BANK, NATIONAL ASSOCIATION, :DOCKET NO. Q'T -oZ3tl~ ~cc~.~, 6 Sr/2., Plaintiff ~, v. :CONFESSION OF JUDGMENT DONALD J. ZYDORCZYK, Defendant :PREVIOUSLY ASSIGNED TO: N/A PRAECIPE FOR ENTRY OF APPEARANCE TO THE PROTHONOTARY: Please enter my appearance on behalf of Plaintiff, PNC Bank, National Association. Papers maybe served at the address set forth below. Geoffrey S. Shull, Esquire McNees Wallace &Nurick LLC 100 Pine Street, PO Box 1166 Hamsburg, PA 17108-1166 (717) 237-5439 Respectfully submitted, McNees Wallace &Nurick LLC Date: April ~v 2007 By: e S huff, Esquire upreme ourt ID #24848 100 Pine Street, PO Box 1166 Harrisburg, PA 17108-1166 (717) 237-5439 Attorneys for Plaintiff cj ~ o o „ "Zi i:;: ~ .~ .z; ~ c~:I° N J C r -- ~ ,~ ^__ .~,, -~ ~ _~ ~ ~ ~` r O ~ r~ oa -< .~ ti COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION //~~ PNC BANK, NATIONAL ASSOCIATION, :DOCKET NO. D'7 -a3y~ (.'lv ~L,~~J2_. Plaintiff v. :CONFESSION OF JUDGMENT DONALD J. ZYDORCZYK, Defendant :PREVIOUSLY ASSIGNED TO: N/A NOTICES IN CONNECTION WITH JUDGMENTS BY CONFESSION REQUIRED BY 42 Pa. C.S.A. § 2737.1 (Act 105 of 2000) To: Donald J. Zydorczyk Pursuant to 42 Pa. C.S. § 2737.1. please take notice that the Plaintiff in this matter has entered a judgment by confession against you in the amount of $544,782.49, plus interest, other expenses, fees and costs. You are entitled to file a petition to "strike" or "open" the judgment. In order to do so, you must promptly file a petition with the Court of Common Pleas of Cumberland County, Pennsylvania, as required by Rule 2959 of the Pennsylvania Rules of Civil Procedure. You will file a petition by leaving it with the courts or Prothonotary at the courthouse in Carlisle, Cumberland County, Pennsylvania. A petition is a formal statement of your reasons for challenging the judgment. You must include the names of the parties at the top of the first page and the case number, which is shown above. The petition must state your reasons for challenging the judgment is a separate numbered paragraphs. You have to sign the petition and include a sworn statement at the end of the document verifying that the facts you state in the petition are true and accurate. You will waive any defenses and objections not included in your petition to strike or open. You must therefore make every effort to raise all possible issues and defenses in your petition to strike or open in order to avoid waiving any claims. If you elect to file a petition, it must meet the requirements of Rule 2959 of the Rules of Civil Procedure. A full copy of Rule 2959 is attached to this Notice. You may also have to comply with local rules of procedure in effect in the county where the judgment was entered. If you do not file a petition challenging the judgment, the Plaintiff may take steps to collect on the judgment by asking the Sheriff to seize your assets. You may have other rights available to you other than as set forth in this notice. You should take this paper to your lawyer at once. If you do not have a lawyer, go to or telephone the office set forth below. This office can provide you with information about hiring a lawyer. t .- If you cannot afford to hire a lawyer, this office may be able to provide you with information about agencies that may offer legal services to eligible persons at a reduced fee or no fee. Cumberland County Bar Association 32 South Bedford Street Carlisle, PA 17013 (717) 249-3166 or 1-800-990-9108 Corporations may be unable to represent themselves in court. If the defendants include a corporation, the corporation must appear through an attorney if it intends to challenge the judgment. You may receive other papers and notices regarding the judgment. Those other papers do not negate or override this Notice. Likewise, this Notice is not intended to and does not negate any of the notices or information obtained in other papers that maybe served upon you. We reiterate that you are required to act promptly if you wish to seek relief from the judgment. Under certain circumstances, you have only 30 days in which to file a petition after papers are served on you. Even if the 30 day rule does not apply, you must act promptly in order to protect your interests. Failing to act in a timely manner will render you unable to challenge the judgment at a later time. Pursuant to 40 Pa. C.S.A. Section 2737.1, if you have been incorrectly identified and had a confession or judgment entered against you, you are entitled to costs and reasonable attorney fees as determined by the court. Respectfully submitted, McNees Wallace & Nurick LLC Date: April 2007 By: e . S ff, Esquire S eme Court ID #24848 100 Pine Street, PO Box 1166 Harrisburg, PA 17108-1166 (717) 237-5439 Attorneys for Plaintiff .- i~~ Pennsylvania Rule of Civil Procedure 2959 -Striking off Judgment (a)(1) Relief from a judgment by confession shall be sought by petition. Except as provided in subparagraph (2), all grounds for relief whether to strike off the judgment or to open it must be asserted in a single petition. The petition may be filed in the county in which the judgment was originally entered, in any county to which the judgment has been transferred or in any other county in which the sheriff has received a writ of execution directed to the sheriff to enforce the judgment. (2) The ground that the waiver of the due process rights of notice and hearing was not voluntary, intelligent and knowing shall be raised only (i) in support of a further request for a stay of execution where the court has not stayed execution despite the timely filing of a petition for relief from the judgment and the presentation of prima facie evidence of a defense; and (ii) as provided by Pennsylvania Rule of Civil Procedure 2958.3 or Rule 2973.3. (3) If written notice is served upon the petitioner pursuant to Rule 2956.1(c)(2) or Rule 2973.1(c), the petition shall be filed within thirty days after such service. Unless the defendant can demonstrate that there were compelling reasons for the delay, a petition not timely filed shall be denied. (b) If the petition states prima facie grounds for relief the court shall issue a rule to show cause and may grant a stay of proceedings. After being served with a copy of the petition the plaintiff shall file an answer on or before the return day of the rule. The return day of the rule shall be fixed by the court by local rule or special order. (c) A party waives all defenses and objections which are not included in the petition or answer. (d) The petition and the rule to show cause and the answer shall be served as provided in Rule 440. (e) The court shall dispose of the rule on petition and answer, and on any testimony, depositions, admissions and other evidence. The court for cause shown may stay proceedings on the petition insofar as it seeks to open the judgment pending disposition of the application to strike off the judgment. If evidence is produced which in a jury trial would require the issues to be submitted to the jury the court shall open the judgment. (f) The lien of the judgment or of any levy or attachment shall be preserved while the proceedings to strike off or open the judgment are pending. w p ~i "~= l77 A ~'~ t t , .~ Cr~ "C7 N fi'1 ~ ~~ ~ {~ Tyr ~ ~ . t3'- ; ,, ~ COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION PNC BANK, NATIONAL ASSOCIATION, DOCKET NO. ~'Z' --~,3[~~ ~~ u ~~ ~-'''1 Plaintiff v. :CONFESSION OF JUDGMENT DONALD J. ZYDORCZYK, Defendant :PREVIOUSLY ASSIGNED TO: N/A NOTICE UNDER RULE 2958.1 OF JUDGMENT AND EXECUTION THEREON NOTICE OF DEFENDANT'S RIGHTS TO: Donald J. Zydorczyk A judgment in the amount of $544,782.49, plus interest, other expenses, fees and costs has been entered against you and in favor of the plaintiff without any prior notice or hearing based on a confession of judgment contained in a written agreement or other paper allegedly signed by you. The sheriff may take your money or other property to pay the judgment at any time after thirty (30) days after the date on which this notice is served on you. You may have legal rights to defeat the judgment or to prevent your money or property from being taken. YOU MUST FILE A PETITION SEEKING RELIEF FROM THE JUDGMENT AND PRESENT IT TO A JUDGE WITHIN THIRTY (30) DAYS AFTER THE DATE ON WHICH THIS NOTICE IS SERVED ON YOU OR YOU MAY LOSE YOUR RIGHTS. YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW. THIS OFFICE CAN PROVIDE YOU WITH INFORMATION ABOUT HIRING A LAWYER. IF YOU CANNOT AFFORD TO HIRE A LAWYER, THIS OFFICE MAY BE ABLE TO PROVIDE YOU WITH INFORMATION ABOUT AGENCIES THAT MAY OFFER LEGAL SERVICES TO ELIGIBLE PERSONS AT A REDUCED FEE OR NO FEE. ,, i Cumberland County Bar Association 32 South Bedford Street Carlisle, PA 17013 (717) 249-3166 or 1-800-990-9108 Respectfully submitted, McNees Wallace & Nurick LLC Date: April 2007 By: G y S uff, Esquire preme ourt ID #24848 100 Pine Street, PO Box 1166 Harrisburg, PA 17108-1166 (717) 237-5439 Attorneys for Plaintiff rv ~ o C "J ~ ~l~ r'1 , ~- ` ~ ; - _ My ;•° _ C1 xj fT7~ ], r_. ~ ~ ~ -r' TITS ' ~ .+ t ~- ~ ~" t 1 f .,~` s _ti ~' COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION PNC BANK, NATIONAL ASSOCIATION, DOCKET NO. ~ ~' - oZ3Yl ~ ~, ~ L Plaintiff ~ ' v. DONALD J. ZYDORCZYK, Defendant To: Donald J. Zydorczyk, Defendant :CONFESSION OF JUDGMENT PREVIOUSLY ASSIGNED TO: N/A You are hereby notified that on ~.~,2t ~, °2~ _, 2007, judgment by confession was entered against you in the sum of $544,782.49, m the above-caption case. DATE: ~(~~l p~ Pr thonot 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 (717) 249-3166 or 1-800-990-9108 I hereby certify that the following is the address of the Defendant stated in the certificate of residence: Donald J. Zydorczyk 2102 Brigade Road Enola, PA 17025 A ey nt' ,, - ,. A, Donald J. Zydorczyk, Demandado(s) Por este medio sea avisado que en el dia de de 2007, un fallo por admision fue registrado contra usted por la contidad de $544,782.49, del caso antes escrito. Fecha: el dia de de 2007 Protonotario LLEVE ESTA DEMANDA A UN ABODAGO IMMEDIATAMENTE. SI NO TIENE ABOGADO O SI NO TIENE EL DINERO SUFICIENTE DE PAGAR TAL SERVICIO, VAYA EN PERSONA A LLAME POR TELEFONO A LA OFICINA CUYA DIRECCION SE ENCUENTRA ESCRITA ABAJO PARR AVERIGUAR DONDE SE PUEDE CONSEGUIR ASISTENCIA LEGAL. Cumberland County Bar Association 32 South Bedford Street Carlisle, PA 17013 (717) 249-3166 or 1-800-990-9108 Por este medio certifico que to siguiente es la direccion del demandado dicho en el certificado de residencia: Donald J. Zydorczyk 2102 Brigade Road Enola, PA 17025 Abo ada(a em dante(s) COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION PNC BANK, NATIONAL ASSOCIATION, Plaintiff DOCKET NO. 07-2341 Civil Term v. DONALD J. ZYDORCZYK, Defendant CONFESSION OF JUDGMENT PREVIOUSLY ASSIGNED TO: N/A RETURN OF SERVICE PURSUANT TO PA. R.C.P. No. 2958.1(c) Plaintiff, PNC Bank, National Association, hereby files this Return of Service and swears and affirms that the person or persons listed below was or were served pursuant to Pa. R.C.P. No. 2958.1(b) with the Notice of Judgment and Execution Required by Rule 2958.1 by certified mail, return receipt requested, as provided by Pa. R.C.P. No. 403. A copy of each receipt for certified mail is attached hereto. Donald J. Zydorczyk 2102 Brigade Road Enola, PA 17025 Respectfully submitted, McNees Wallace & Nurick LLC Date: May, 2007 By: e ey 5. Shull, squire Supreme Court ID #24848 100 Pine Street, PO Box 1166 Harrisburg, PA 17108-1166 (717) 237-5439 Attorneys for Plaintiff ~~ _ PNC Bank I Geoffrey S. Shuff , , , Domestic Return Receipt ?16a 39t]1 9849.9718 4664 TO' Donald J. Zydoeczyic 2102 Brigade Road Enola, PA 17025 SENDER: Geoffrey S. Shuff REFERENCE: PNC Bank RETURN Peerage RECEIPT Certified Fee SERVICE • Return Receipt Fee ~ Restricted Delius Total Postage & Fees US PCf6tai SetV1Ci P ~H DATE " Receipt for ~ °~a~e '. Certified Mail ~~` No lneurar~ Cowrape Provkled Do Not ties for krt~rnatlonel IrhN _ .':; G~ ~~ .~' ~ t ~...~ f _ x ti_ ~ ;.. ~. a., ,~ i., :. ice Y . `Y ~^ ~ ,• ~ , , „ Y ~• ~ r 1J' cL COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION PNC BANK, NATIONAL ASSOCIATION, DOCKET NO. 07-2341 Civil Term Plaintiff V. CONFESSION OF JUDGMENT DONALD J. ZYDORCZYK , Defendant _?„ rn ? rn- .Z-;v Wr-- r- N r- rT? RELEASE OF JUDGMENT _ Please release the following property from the lien and operation of the judgment in the above matter: 2102 Brigade Road, Lot #229, Plan Book 74, Page 6, Phases I & II, Whelan Crossing, Hampden Township, Cumberland County, Pennsylvania Tax Parcel No. 10-14-0837-021 McNees Wallace & Nurick LLC Date: July 25, 2011 By: Geo ey Shuff, Esquire prem "Court ID #24848 100 Pine Street, PO Box 1166 Harrisburg, PA 17108-1166 (717) 237-5439 Attorneys for Plaintiff ??, ? bRo?f 14 (44-- 61 Se?P " -fees, LLC 17050 Mechanul Pa