HomeMy WebLinkAbout03-5128HOURIGAN, KLUGER & QUINN
A PROFESSIONAL CORPORATION
BY: James T. Shoemaker, Esquire
IDENTIFICATION NO. 63871
LAW OFFICES
600 Third Avenue
Kingston, PA 18704
(570)287-3000
MELLON BANK, N.A., now by assignment,
CITIZENS BANK OF PENNSYLVANIA
8 West Market Street
Wilkes-Barre, PA 18711-0101
Plaintiff
VS.
PENN-WILD PUBLICATIONS, INC.
4707 North Clearview Drive
Camp Hill, PA 17011,
Defendant
ATTORNEY FOR PLAINTIFF/DEFENDANT
IN THE COURT OF COMMON PLEAS
OF CUMBERLAND COUNTY
CIVIL ACTION -- LAW
IN CONFESSION OF JUDGMENT
CONFESSION OF JUDGMENT
Pursuant to the authority set forth in the warrant of attorney contained in the original
Unconditional Guarantee, a tree and correct 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:
574669.1
U.S. Small Business Adrnin~stmtion
NOTE
SBA Loan #
SBA Loan Name
PLP 346-444-4000
CELTIC t~CN PU~LISHANG, INC.
Date
Loan Amount
[nterest Rate
Boffower
$500,000.00
WSJ pRIF~ + 1.00%
CELTIC MZIZN PUNISHING,
Operating
Company
Lender
Fr~T,TCN BANK, N.A.
PRO1VI~E TO PAY:
In return for the Loan, Borrower pron:fises to pay to the order of Lender th; amount of
__________******************************
intere~ on the unpaid principal balance, and all other amounts ~quired by ~is Note.
Dollm's,
2. DEFIIWITIONS:
"Collateral" m~ans any property taken as security for payment of thiz Note or any guarantee of this Note.
"Gt~rautor" means each ~r~on or entity that signs a guarante~ of payment of this Note.
"Loan" means the loan evidenced by this Note.
"Loan Doouments' meam the docurnent~ related to Uhis loan signed by Borrower, any Guarantor, or unyon~ who
pledges collateral.
"SBA" means the Small Business Adminis~ation~ an Agency of the Unite~ States of America.
SBA Form 147 (I0/22/98) Prwious cdifiom ob~olct~
EXHIBIT
3. PAYMENT f~-RMS:
Borrower met make all pa.vm~ts at the place Lender desi~tes. The payment terms for th.is Note are:
The interest rate on this Note will fluctuate. The initial interest rate is 9,50% per year. This initial rate is
the prime rate on the date SBA received the loan application, plus 1.0%.
Borrower must pay a total of 6 payments of interest only on the disbursed principal balance
beginning one month from the month this Note is dated and every month thereafter; payments must
be made on the I $?' calendar day in the months they are due.
Borrower must pay interest on the disbursed principal balance, plus principal of $5,952.38, every month,
beginning seven months from the month this Note is dated; payments must be made on the
calendar day in the months they are due.
Lender will apply each installment payment first to pay interest accrued to the day Lender receives the
payment, then to bring principal current, then to pay any late fees. and will apply any remaining balance
to reduce principal.
Lender may adjust the interest rate for the first time no earlier than the first calendar day of the first
month after initial disbursement. The interest rate will then be adjusted monthly (the "change
period").
The "Prime Rate" is the prime rate in effect on the first business day of the month in which a change
occurs, as published in the Wall Street Journal on the next business day.
The adjusted interest rate will be 1.0% above the Prime Rate. Lender wild adjust the interest rate on
the first calendar day of each change period. The change in interest rate is effective on that day
whether or not Lender gives Borrower notice of the change.
Lender must adjust the payment amount at least annually as needed to amortize principal over the
remaining term of the note.
If SBA purchases the guaranteed portion of the unpaid principal balance, the interest rate becomes
fixed at the rate in effect at the time of the earliest uncured payment default. If there is no uncured
payment default, the rate becomes fixed at the rate in effect at the time of purchase.
All remaining principal and accrued interest is due and payable 7 years and 6 months from date of Note.
~A Fom~ 14.7 (I0/7.2/~) pr~,'i~ua eAitioaa ob$ole~ Pa~ 2/6
RIGHT TO PREPAY:
Borrower may' ix~pay this Note. Borrower ma)' prepay 20 percent or less of the unpaid principal balance at any time
without notice. If Borrower prepays more than 20 percent and the Loan has been sold on the secondary, market,
Borrower must:
A. Give Lender writtennotic~;
B. Pay all accrued interest; and
C. If the psepayment is received less than 21 days from the date Lender receives thc nofice, pay an amoont equel ts 21
gays' interest from the dots lender receives the notice, less any interest accrued durin8 the 21 days and paid under
subparagraph B.
If Borrower does not p,~ay within 60 days from the date Lender receives the no,ice, Borrower must give Lender s
new notice.
D~A~T:
Borrower is in default under this Note if Borrower does not make a payment when due under this Nots, or if Borrower
or Operating Company:.
A. Fails to do anythi~5 required by this Note and other Loan Documents;
B. Defaults on any other loan with Lender;,
C. Does not preserve, or account to Lender's satisfaction for, any of the Collatmal or its pwceeds;
D. Does not disclose, or anyone acting on their behalf does not disclose, any maim-iai fact to Lender or SBA.;
E. Makes, or anyone aciing on their behalf makes, a materially false or misleadin~ represemation to Lender or SBA;
F. Do faults on any loan or a/leemont with anothes creditor, if Loncler believes the default may materially affect
Borwwer's ability to pay this Note;
G. Fails to pay any ~xes whan due;
H. Becomes the subject of a proceedin8 under any baula'uptoy or insolvency law;
Has a receiver or llqulclawr appointsd for any pan of their business or property;
$. Makes an assislunent for the benefit of creditors;
K. Has any adverse change in/'mancial condition or business operation that Lender believes may materially affect
Borrower's ability to pay this Note;
L. Reor~sniTes, merges, censolidetss, or otherwise changes ownership or business structure without Lender's prior
writlen consent; or
M. Beoomes the subject of a civil or criminal action that Lender believes may materially affect Borrower's abll/ty to
pay this Nots.
6. LENDER'S RIGHTS IF THERE IS A DEFAULT:
Without notice or demand and without givh~g u~ any of its rights, Lender re.ay:
A. Requlr~ immediate payment of all amounts owing under this Note;
B. Collect all amounts owin~ from any Borrower or C-uarsntor,
C. File suit and obtain judgment;
D. Take possession of any Collateral; or
E. Sell, lease, or otherwise dispose of, any Collateral at public or ~nivate sale, with or without advertisement.
7. LENDER'S GENERAL POWERS:
Without notice and without Borrower's consent, Lender may:
A. Bid on or buy the Collateral at its sale or the sale of another lienholder, at any price it chooses;
B. Incur expenses to-collect amounts due under this Note, enforce the terms of this Note or an)' other Loan
Document, and preserve or dispose of the Collateral. Among other things, the expenses may include payments
for property taxes, prior liens, insurance, appraisals, environmental remediation costs, and reasonable attorney's
fees and costs. IfLonder incurs such exPenSes, it may demand i,.~iediate repayment from Bon'ower or add the
expenses to the principal balance;
C. Release anyone obli~ted to pay this Note;
D. Compromise, release, renew, extend or substitute any of the Collateral; and
E. Take any action necessary to protect the Collateral or collect amounts owing on this Note,
When SBA is the holder, this Note will be interpreted and enforced under federal law, including SBA regulations.
Lender or SBA may use state or local procedu~s for filing papers, reocrdi~ documents, giving notice, foreclosi~
liens, and other purposes. By using such procedures, SBA docs not waive any federal immunity from state or local
control, penalty, tax, or liability. As to this Note, Borrower may not claim or assert against SBA any local or state law
to deny any oblisation, defeat any claim of.SBA, or praempt federal law.
SUCCESSORS AND ASSIGNS:
Under this Note, Bon'ower and Operatin$ Company include the suoceasors of eneh, and Lender inolude$ its successors
and assi~as.
I0.
C_rEHERAL PROVISIONS:
A. All individuals and entities si~:tin$ this Note are jointly a~d severally liable.
B. Bom~wer waives all sumtyskip defenses.
C. Borrower must s/~n all documonts nocessary et any time to comply with the Loan Documents and to enable
Lender to acquit, perfect, or maintain Lender's liens on Collateral.
D. Lend~rmayexerciseany~fitsrightsseparate~yort~ther~asmanytimesandinany~rdoritch~ses. Lender
may delay or forgo enforcing any of its rights without givin~t up any of th~m.
E. Borrower may not u~ an oral statement of L~nder or SBA to ocnwadict or aim- th~ wril~en terms of this Note.
F. If any part of th/s Note is unenforceable, all other parts r~fin in effect.
To the extent allowed by law, Borrower waive~ all dermmds and notices in connection with this Note, inoludin~
presentment, demand, protes~ and notice of dishonor. Borrower also waives any defenses based Upon any claim
~hat Lender did not obtain any guarantee; did not obtain, perfect, or ~l-~ain a lien upon Collateral; impaired
Collateral; or did not obtain the fair market value of Collateral at a sale.
SBA Form 147 (1~/22~95) previous editions obsol~'t~ Ps~e 4/6
11. STATE-SPECIFIC PROVISIONS:
THE CONFESSION OF JUDGMENT BELOW IS PART OF THIS OBLIGATION.
THE UNDERSIGNED HEREBY AUTHORIZES AND EMPOWERS ANY ATI'ORNEY
OR CLERK OF ANY COURT OF RECORD IN THE UNITED STATES OR
ELSEWHERE TO APPEAR FOR AND, WITH OR WITHOUT DECLARAT'-.'.SN FILED.
CONFESS JUDGMENT AGAINST THE UNDERSIGNED IN FAVOR OF THE '
HOLDER, ASSIGNEE OR SUCCESSOR OF HOLDER OF THIS NOTE, AT ANY
TERM, FOR THE FULL OR TOTAL AMOUNT OF TI-IlS NOTE, TOGETHER WITH
ALL "INDEBTEDNESS" PROVIDED FOR THEREIN, WITH COSTS OF SUIT AND
AT'I'ORNEY'S COMMISSION OF TEN (10) PERCENT FOR COLLECTION: AND THE
UNDERSIGNED EXPRESSLY RELEASES ALL ERRORS, WAIVES ALL STAY OF
EXECU'~ON, RIGHTS OF INQUISITION AND EXTENSION UPON ANY LEVY UPON
REAL ESTATE AND ALL EXEMPTION OF PROPERTY FROM LEVY AND SALE
UPON ANY EXECUTION HEREON, AND TH]~ UNDERSIGNED EXPRESSLY
AGREES TO CONDEMNATION AND EXPRESSLY RELINQUISHES ALL RIGHTS
TO BENEFITS OR EXEIVIFTIONS UNDER ANY AND ALL EXEIvlPTION LAWS NOW
IN FORCE OR WHICH MAY HEREAI- I~:R BE ENACTED,
$1~A Fontt 147 (I0/22/~8) Pr~vlou* editions
12. BORROWER'S NAME(S) AND SIGNATURE(S):
By sig~in~ below, ach individual or ~ntity becomes obligated under this Note as Borrower.
Attest: Dennis R. Ritchey, CFO---..~_ '3
CELTIC MOON PUBLISHING, INC.
By Sherry ~'.¥. Ri[obey, President
Address:
4720 Carlisle Pike
Mechanicsburg, PA 17055
(Corporate Seal)
147 ( I 0t'~./~) Pr~ions ~illo~s obsol~ P~p ~6
Corpor e Guaranty and
Suretyshlp/Pleclge Resolt..,on Mellon Bank
At a meeting of the Board of Directors of
PENN-WILD PUBLICATIONS, INC.
a Corporation incorporated and existing under the laws of
COMMONWEALTH OF PI::NNSYLVA.NTA . duly and legally
held on P.F,~.~'.~9'~-.~' 1's7 /Fg'~ i a quorum being
present and voting through~ut, the follOW~ng resolutions were
adopted:
RESOLVED, that this Board of Diractors finds it to be in the best
interests of this Corporation and hereby anI~or,ves the
o~ th~ Corporation or any ~x~
of them tn cau~ this Corporation to guarantee any and ali
indebtedness of
CW. LTIC MOON PUB~.ISHINO, INC.
a(n) Cor~orat:ion ("Debtor") to
Mellon Bank, N.A.
("Bank") as ~t forth in the Guaranty and SuretysBip Agreement
("Agreement") and that such officer{s) of this Corporation are
hereby authorized to execute the Agreement, said Agreement to be
in such form as required by Bank.
FURTHER RESOLVED, that any d~
of such officers identified by title in the immediately preceding
Resolution be and is/are hereby authorized, directed and
empowered to grant, transfer, pledge, mortgage or otherwtse
Signatures.
Title:
hypothecate to Bank and to execute and deliver to Bank any and all
mortgages, deeds of trust, pledge and security agreements, financing
statements and such other agreements and documents required by
Bank as security for said Agreement and/or for the indebtedne~ of
Debtor to Bank.
FURTHER RESOLVED, that the Secretary of this Corporation is
hereby directed to file with Bank a certified copy of these Re~olutions
and a list of the persons, together with specimens of their signatures,
who are the presem holders of said offices; and that Bank shall be
entitled as against this Corporation to presume cunelnsively that the
persons so certified continue to hold the same officas respectively
until Bank has received notice to the contrary in writing from the
Secretary.
FURTHER RESOLVED, that these Resolutions shall have the
force of a continuing agreement with Bank, and shall be binding
upon the Corporation until a resolution amending them shall have
been duly and legally adopted and Bani[ shall have been furnmhed
with a certified copy thereof.
The undersigned certifies that the undersigned is an officer of said
Corporation, holding the title indicated below, and that the foregoing
Resolutions were duly and legally adopted at the meeting ~et forth
above, are in accord with the articles and by-laws of the Corporation,
and are in full force and effect as of the (late shown below. The
undersigned further certifies that as of the date shown below each
person identified by signature below is an officer of this Corporation
homing the office or offices Mentified opposite each such aignatura,
and that each such signature is genuine.
X
IN WITNESS WrctEB. EOF, I have hereunto set my hand and affixed the sealof the Corporation.
Date:
CertifTing Officer:. (Name and Title)
Director's GgrUfl~Uon ' ' "' ' ' '
I hereby certify that I am a Director of said Corporation and that thc foregoing is a correct copy of the R~olutiona 0nsa~l ns ~ art forth,
and that the same arc now in full force.
Date:
CL-360 R~v.(4/96) LC. 1,96 LD 3/96
0275 B 23-2949055 1 CL360 (01) 121499,1253
Director's Signature:
EXHIBIT
AFFIDAVIT
COMMONWEALTH OF PENNSYLVANIA:
: SS.
COUNTY OF LUZERNE :
I, Joseph E. Sweeney, being duly swom according to law, depose and say that I am an
Assistant Vice President of Citizens Bank of Pennsylvania. I am duly authorized to make this
affidavit on its behalf. On September 11, 2003, the amount owed to Mellon Bank, N.A., now by
assignment, Citizens Bank of Pennsylvania, pursuant to the Guarantee, was as follows:
Principal balance on Note ................... $344,779.43
Interest to 09/11/03 ......................... $ 12,463.25
Attorneys' Fees (20%) ....................... $71,448.54
TOTAL .............. $428,691.22
Sworn to and subscribed
before me this 5~ day of
~~0~r- ,2003.
NOTARIAL SEAL
TERRI c. S~,)IIT?I, Notary Public
Luzeffte moro- Luzern~ County
My Commission Expires Feb. 02, 2004
;y,WAssistant
Vice President
574666.1
EXHIBIT "C"
AFFIDAVIT OF LAST KNOWN ADDRESS
COMMONWEALTH OF PENNSYLVANIA:
: SS.
COUNTY OF LUZERNE :
I, Joseph E. Sweeney, Assistant Vice President of Citizens Bank of Pennsylvania, being duly
sworn according to law, depose and say that the last known address of the defendant is as follows:
Penn-Wild Publications, Inc.
4707 North Clearview Drive
Camp Hill, PA 17011
Sworn to and subscribed before me
E. Sweeney, Assistant Vice Pr~ent
this ~-~ dayof ~,~e~(,2003.
NOTARIAL SEAL
'F. RRI C. SMITH, NotanZ Public
Lu~ Boro - Luzeme County
My Commissioa Expirss Feb. 02, 2004
574661.1
CERTIFICATION OF COMMERCIAL TRANSACTION
I, Joseph E. Sweeney, Assistant Vice President of Citizens Bank of Pennsylvania, depose
and say, subject to the penalties of 18 Pa. C.S. §4904 relating to unswom faisification to
authorities, that the underlying transaction relative to this complaint in confession of judgment is a
commercial transaction to the best of my knowledge or information and belie£
eney, Assistant Vice President
Prothonotary
Court of Common Pleas
Cumberland County Courthouse
Carlisle, PA 17013
CUMBERLAND COUNTY PENNSYLVANIA
TO:
Penn-Wild Publication, Inc.
4707 North Clearview Drive
Camp Hill, PA 17011
AS PRESCRIBED BY LAW, YOU ARE NOTIFIED THAT A JUDGMENT HAS
BEEN FILED IN THIS OFFICE AGAINST YOU BY CITIZENS BANK OF
PENNSYLVANIA IN THE AMOUNT OF $428,691.22, TOGETHER WITH INTEREST
[=MSEPTEMBER 1 AND COSTS UNTIL ON THE ~DAY OF
1,
2003,
PAID,
,2003.
Yo~stmly,
rothonotary ~.]
HOURIGAN, KLUGER & QUINN
A PROFESSIONAL CORPORATION
BY: JAMES T. SHOEMAKER, ESQUIRE
IDENTIFICATION NO. 63871
LAW OFFICES
600 Third Avenue
glngstim, PA 18704
(570) 287-.3000
ATTORNEY FOR PLAINTIFF
MELLON BANK, N.A., now by assignment,:
CITIZENS BANK OF PENNSYLVANIA
8 West Market Stree~
Wilkes-Bm-re, PA 18711-0101,
Plaintiff
VS.
PENN-WILD PUBLICATIONS, INC.
4707 North Clearview Drive
Camp Hill, PA 17011,
Defendant NO. 03-5128 Civil
AFFIDAVIT OF RETURN OF SERVICE BY MAIL
IN THE COURT OF COMMON PLEAS
OF CUMBERLAND COUNTY
CIVIL ACTION -- LAW
IN CONFESSION OF JUDGMENT
On Octolgr 1, 2003, I nailed ~ gquisite 2958.1 Nolic~ vi~ cnflied nail, rem~ receipt r~gstat, nfl regul~ mail to Defend~ Perm-Wild
Publications, Inc. TholMmfl~ sig~thor~mmr~ipt~onddiv~i~rocd~att~,hedhe~asExhibit~A,"w~retu~by~toffi~
Octolx~ 3, 2003.
I make thee sta~a~s Immant to 18 PA. C~. S~ §4904 Mating to m~swom falsific~on to authofitie~ md uadmtand fl~at falso stagr~ts may sub~t
HOURIGAN, KLUGER & ~P.C.
2003. z
NOTARIAL SEAL J
ROSEMARIE McCOY, NOTARY PUBLIC
WILKES-BARRE, LUZERNE COUNTY PA
MY COMMISSION EXPIRES ,MAR. 5, 2005
$~x~ T. Shoenat~, tsqum
578147.1
· Complete items 1, 2, and 3. Also complete
item 4 if Restricted Delivery is desired.
· Print your name and address on the reverse
so that we can return the card to you.
· Attach this card to the back of the mailpiece,
or on the front if space permits.
Date of Deliver,
[] Agent
is delivery address diffemnt ffom item l? [] Yes,
If YES, ecter delivery address baiow~ [] ~)
3. Smvice 'type
[] Certified Mail [] Express Mail
[] Regislered [] Return Receipt for Merchandise
[] Insured Mail [] C.O.D.
4. Restricted Delivery? (Extra Fee) [] Yes
2. Article Numl
7002 2410
0006 1863 8026
i PS Form 3811, July 1999
Domestic Return Receipt