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HomeMy WebLinkAbout08-0968IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA PNC BANK, NATIONAL ASSOCIATION, Plaintiff, No. D9 - QtoB Civi LTerM vs. JAMES A. STOUFFER and KATHLEEN T. STOUFFER, Defendants CONFESSION OF JUDGMENT Pursuant to the authority granted in the Warrant of Attorney contained in the Guaranty, a copy of which is attached as Exhibit "A" to the Complaint filed in this action; and the Note, a copy of which is attached as Exhibit "B", the undersigned attorney hereby appears for Defendants and confesses judgment in favor of Plaintiff, PNC BANK, NATIONAL ASSOCIATION, and against Defendants, as follows: Principal Debt $ 39,887.57 Interest through 1/10/08 1,521.98 Late Charge 150.02 Attorney's Commission 4,140.95 Total $ 45,700.52 ti Donna M. Donaher, Esquire Attorney for PNC Bank, National Association IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA PNC BANK, NATIONAL ASSOCIATION, Plaintiff, vs. JAMES A. STOUFFER and KATHLEEN T. STOUFFER, CIVIL DIVISION NO. COMPLAINT IN CONFESSION OF JUDGMENT Filed on behalf of Plaintiff, PNC Bank, National Association Defendants. Code: Counsel of Record for This Party: Donna M. Donaher, Esquire Pa. I.D. #53165 TUCKER ARENSBERG, P.C. Firm #287 1500 One PPG Place Pittsburgh, PA 15222 (412) 566-1212 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA PNC BANK, NATIONAL ASSOCIATION, Plaintiff, vs. JAMES A. STOUFFER and KATHLEEN T. STOUFFER, Defendants No. o P- 9 G P ? 77, COMPLAINT IN CONFESSION OF JUDGMENT AND NOW, comes the Plaintiff, PNC BANK, NATIONAL ASSOCIATION, by and through its counsel, Tucker Arensberg, P.C., and files this Complaint confessing judgment in its favor, stating as follows: 1. Plaintiff, PNC BANK, NATIONAL ASSOCIATION, ("PNCB"), is a national banking association organized and existing under the laws of the United States of America and a citizen of Pennsylvania, with its main office located at Fifth Avenue and Wood Street, Pittsburgh, Pennsylvania. 2. Defendants are James A. Stouffer and Kathleen T. Stouffer, whose last known address is 5213 Royal Drive, Mechanicsburg, PA 17055. 3. Defendants, on November 9, 2005, executed a Commercial Guaranty ("Guaranty") and thereby guaranteed prompt and punctual payment of the indebtedness due under a certain Promissory Note ("Note") between PNCB and Luf Lawn & Garden, Inc., dated November 9, 2005. True and correct copies of the Guaranty and Note are attached hereto, incorporated herein and labeled, respectively, Exhibits "A" and "B". 4. By the Guaranty, Defendants, jointly and severally, promised to guarantee to pay Plaintiff the principal sum of $40,000.00 together with interest thereon in the manner provided by the Note. 5. There has been no assignment of the Guaranty. 6. Judgment has not been entered on the Guaranty in any jurisdiction against the Defendants or either Defendant. 7. The judgment by confession sought by PNCB in this Complaint is not being entered against a natural person in connection with a consumer credit transaction. 8. By Warrant of Attorney contained in the Guaranty, Defendants authorized entry of judgment by confession. 9. Pursuant to the Warrant of Attorney executed by Defendants, Defendants waived the benefit of all laws exempting real or personal property from execution. 10. Pursuant to the Warrant of Attorney contained in the Guaranty, judgment may now be entered against Defendants as payment on the Note was not made when due thereby creating an event of default under the Note and accelerating all amounts due thereunder. 11. Under the Guaranty, the following amounts are now due by Defendants to PNCB: Principal Debt $ 39,887.57 Interest through 1/10/08 1,521.98 Late Charge 150.02 Attorney's Commission 4.140.95 Total $ 45,700.52 12. Under the terms of the Guaranty, Defendants are liable to PNCB for attorney's commission of ten percent for collection. -2- WHEREFORE, Plaintiff, PNCB, dem lands that a judgment be entered against Defendants. James A. Stouffer and Kathleen T. Stouffer, jointly and severally, as authorized in the Warrant of Attorney contained in the Guaranty, in the sum of $45,700.52, together with interest and costs of suit. TUCKER ARENSBERG, P.C. By Donna M. Donaher, Esquire 1500 One PPG Place Pittsburgh, PA 15222 (412) 566-1212 -3- (Page 7 "of 14.) , COMMERCIAL GUARANTY I References in the shaded area are for Lender's use only and do not limit the applicability of this document to any particular loan or item. Any item above containing •" has been omitted due to text length limitations. Borrower: LUFF LAWN & GARDEN, INC. ISSN: 23-2248765) Lender: 1590 STATE STREET PNC Bank, National Association CAMP HILL, PA 17011 Business Banking 4242 Carlisle Pike Camp HUI, PA 17001 Guarantor: JAMES A STOUFFER (SSN: 194 44 7806) KATHLEEN T. STOUFFER (SSN: 184-48-8071) 5213 ROYAL DRIVE MECHANICSBURG, PA 17055 AMOUNT OF GUARANTY. The amount of this Guaranty is Unlimited. CONTINUING UNLIMITED GUARANTY. For good and valuable consideration, JAMES A STOUFFER and KATHLEEN T. STOUFFER 1"Guarantor') absolutely and unconditionally guarantees and promises to pay, jointly and severally, to PNC Bank, National Assoc!"on ('Lender") or its order, in legal tonder',of the United States of America, the Indebtedness 1113 that term is defined herein) of LUFF LAWN & GARDEN, INC. ("Borrower") to Lender an the terms and condhions set forth in this Guaranty. This Guaranty is a guaranty of payment and not a guaranty of collection. Under this Guaranty, the liability of Guarantor is unlimited and the obligations of Guarantor are continuing. INDEBTEDNESS GUARANTEED. The Indebtedness guaranteed by this Guaranty includes any and all of Borrower's indebtedness to Lender and is used in the most comprehensive sense and means and includes any and all of Borrower's liabilities, obligations and debts to Lender, now existing or hereinafter incurred or created, including, without limitation, all loans, advances, interest, costs, debts, overdraft indebtedness, credit card indebtedness, lease obligations, other obligations, and liabilities of Borrower, or any of them, and any present or future judgments against Borrower, or any of them; and whether any such Indebtedness is voluntarily or involuntarily incurred, due or not due, absolute or contingent, liquidated or unliquidated, determined or undetermined; whether Borrower may be liable individually or jointly with others, or primarily or secondarily, or as guarantor or surety; whether recovery on the Indebtedness may be or may become barred or unenforceable against Borrower for any reason whatsoever; and whether the Indebtedness arises from transactions which may be voidable on account of infancy, insanity, ultra vires, or otherwise. DURATION OF GUARANTY. This Guaranty will take effect when received by Lender without the necessity of any acceptance by Lender, or any notice to Guarantor or to Borrower, and will continue in full force until all Indebtedness incurred or contracted before receipt by Lender of any notice of revocation shall have been fully and finally paid and satisfied and all of Guarantor's other obligations under this Guaranty shall have been performed in full. If Guarantor elects to revoke this Guaranty, Guarantor may only do so in writing. Guarantor's written notice of revocation must be mailed to Lender, by certified mail, at Lender's address listed above or such other place as Lender may designate in writing. Written revocation of this Guaranty will apply only to advances or new Indebtedness created after actual receipt by Lender of Guarantor's written revocation. For this purpose and without limitation, the term 'new Indebtedness' does not include Indebtedness which at the time of notice of revocation is contingent, unliquidated, undetermined or not due and which later becomes absolute, liquidated, determined or due. This Guaranty will continue to bind Guarantor for all Indebtedness incurred by Borrower or committed by Lender prior to receipt of Guarantor's written notice of revocation, including any extensions, renewals, substitutions or modifications of the Indebtedness. All renewals, extensions, substitutions, and modifications of the Indebtedness granted after Guarantor's revocation, are contemplated under this Guaranty and, specifically will not be considered to be now Indebtedness. This Guaranty shall bind Guarantor's estate as to Indebtedness created both before and after Guarantor's death or incapacity, regardless of Lender's actual notice of Guarantor's death. Subject to the foregoing, Guarantor's executor or administrator or other legal representative may terminate this Guaranty in the same manner in which Guarantor might have terminated it and with the same effect. Release of any other guarantor or termination of any other guaranty of the Indebtedness shall not affect the liability of Guarantor under this Guaranty. A revocation Lender receives from any one or more Guarantors shall not affect the liability of any remaining Guarantors under this Guaranty. ft is anticipated that fluctuations may occur in the aggregate amount of Indebtedness covered by this Guaranty, and Guarantor specifically acknowledges and agrees that reductions in the amount of Indebtedness, even to zero dollars (50.00), prior to Guarantor's written revocation of this Guaranty shall not constitute a termination of this Guaranty. This Guaranty is binding upon Guarantor and Guarantor's heirs, successors and assigns so long as any of the guaranteed Indebtedness remains unpaid and even though the Indebtedness guaranteed may from time to time be zero dollars ($0.001. GUARANTOR'S AUTHORIZATION TO LENDER. Guarantor authorizes Lender, either before or after any revocation hereof, without notice or demand and without lessening Guarantor's liability under this Guaranty. from time to time: JAI prior to revocation as set forth above, to make one or more additional secured or unsecured loans to Borrower, to lease equipment or other goods to Borrower, or otherwise to extend additional credit to Borrower; (B) to alter, compromise, renew, extend, accelerate, or otherwise change one or more times the time for payment or other terms of the Indebtedness or any part of the Indebtedness, including increases and decreases of the rate of interest on the Indebtedness; extensions may be repeated and may be for longer than the original loan term; (C) to take and hold security for the payment of this Guaranty or the Indebtedness, and exchange, enforce, waive, subordinate, fail or decide not to perfect, and release any such security, with or without the substitution of new collateral; (D) to release, substitute, agree not to sue, or deal with any one or more of Borrower's sureties, endorsers, or other guarantors on any terms or in any manner Lender may choose; (E) to determine how, when and what application of payments and credits shall be made on the Indebtedness; (F) to apply such security and direct the order or manner of sale thereof, including without limitation, any nonjudicial sale permitted by the terms of the controlling security agreement or deed of trust, as Lender in its discretion may determine; IG) to sell, transfer, assign or grant participations in all or any part of the Indebtedness; and (H) to assign or transfer this Guaranty in whole or in part. GUARANTOR'S REPRESENTATIONS AND WARRANTIES. Guarantor represents and warrants to Lender that (A) no representations or agreements of any kind have been made to Guarantor which would', limit or quality in any way the terms of this Guaranty; IBS this Guaranty is executed at Borrower's request and not at the request of Lender; (BC) Guarantor has full power, right and authority to enter into this Guaranty; (D) the provisions of this Guaranty do not conflict with or result in a default under any agreement or other instrument binding upon Guarantor and do not result in a violation of any law, regulation, co uarantor; (E) Guarantor has not and will not, without the prior written consent of Lender, sell, lease, assig XHISIT r, or otherwise dispose of all or substantially all of Guarantor's assets, or any interest therein; (F) upon L vide to Lender financial and credit information in form acceptable to Lender, and all such financial information k1k future financial information which will be provided to Lender is and will be true and correct in all material r tor's financial condition as of the dates the financial information is provided; (G) no material adverse cha :9 inancial condition since the date of the most recent COMMERCIAL GUARANTY Loan No: 010764273 (Continued) Page 2 financial statements provided to Lender and no event has occurred which may materially adversely affect Guarantor's financial condition; (H) no litigation, claim, investigation, administrative proceeding or similar action {including those for unpaid taxes) against Guarantor is pending or threatened; (1) Lender has made no representation to Guarantor' as to the creditworthiness of Borrower; and W) Guarantor has established adequate means of obtaining from Borrower on a continuing basis information regarding Borrower's financial condition. Guarantor agrees to keep adequately informed from such means of any facts, events, or circumstances which might in any way affect Guarantor's risks under this Guaranty, and Guarantor further agrees that Lender shall have no obligation to disclose to Guarantor any information or documents acquired by Lender in the course of its relationship with Borrower. GUARANTOR'S WAIVERS. Except as prohibited by applicable law, Guarantor waives any right to require Lender (A) to continue lending money or to extend other credit to Borrower: (8) to make any presentment, protest, demand, or notice of any kind, including notice of any nonpayment of the Indebtedness or of any nonpayment related to any collateral, or notice of any action or nonaction on the part of Borrower, Lender, any surety, endorser, or other guarantor in connection with the Indebtedness or in connection with the creation of new or additional loans or obligations; (C) to resort for payment or to proceed directly or at once against any person, including Borrower or any other guarantor; (D) to proceed directly against or exhaust any collateral held by Lender from Borrower, any other guarantor, or any other person; (E) to give notice of the terms, time, and place of any public or private sale of personal property security held by Lender from Borrower or to comply with any other applicable provisions of the Uniform Commercial Code; IFI to pursue any other remedy within Lender's power; or (G) to commit any act or omission of any kind, or at any time, with respect to any matter whatsoever. Guarantor also waives any and all rights or defenses based on suretyship or impairment of collateral including, but not limited to, any rights or defenses arising by reason of (A) any "one action" or "anti daf?ciency" law or any other law which may prevent Lender from bringing any action, including a claim for deficiency, against Guarantor, before or after Lender's commencement or completion of any foreclosure action, either judicially or by exercise of a power of sale; (8) any elution of remedies by Lender which destroys or otherwise adversely affects Guarantor's subrogation rights or Guarantor's rights to proceed against Borrower for reimbursement, including without (imitation, any loss of rights Guarantor may suffer by reason of any low limiting, qualifying, or discharging the Indebtedness; (C) any disability or other defense of Borrower, of any other guarantor, or of any other person, or by reason of the cessation of Borrower's liability from any cause whatsoever, other than payment in full in legal tender, of the Indebtedness; (D) any right to claim discharge of the Indebtedness on the basis of unjustified impairment of any collateral for the Indebtedness: (E) any statute of limitations, if at any time any action or suit brought by Lender against Guarantor is commenced, there is outstanding Indebtedness of Borrower to Lender which is not barred by any applicable statute of limitations; or (F) any defenses given to guarantors at law or in equity other than actual payment and performance of the Indebtedness. If payment is made by Borrower, whether voluntarily or otherwise, or by any third party, on the Indebtedness and thereafter Lender is forced to remit the amount of that payment to Borrower's trustee in bankruptcy or to any similar person under any federal or state bankruptcy law or law for the relief of debtors, the Indebtedness shall be considered unpaid for the purpose of the enforcement of this Guaranty. Guarantor further waives and agrees not to assert or claim at any time any deductions to the amount guaranteed under this Guaranty for any claim of setoff, counterclaim, counter demand, recoupment or similar right, whether such claim, demand or right may be asserted by the Borrower, the Guarantor, or both. GUARANTOR'S UNDERSTANDING WITH RESPECT TO WAIVERS. Guarantor warrants and agrees that each of the waivers set forth above is made with Guarantor's full knowledge of its significance and consequences and that, under the circumstances, the waivers are reasonable and not contrary to public policy or law. If any such waiver is determined to be contrary to any applicable law or public policy, such waiver shall be effective only to the extent permitted by law or public policy. LENDER'S RIGHT OF SETOFF. To the extent permitted by applicable law, Guarantor grants Lender a contractual security interest in, and hereby assigns, conveys, delivers, pledges and transfers to Lender all of Guarantor's right, title and interest in and to Guarantor's accounts with Lender (whether checking, savings or some other accountl, including without limitation all accounts held jointly with someone else and all accounts Guarantor may open in the future, excluding however all IRA and Keogh accounts, and all trust accounts for which the grant of a security interest would be prohibited by law. Guarantor authorizes Lender, to the extent permitted by applicable law, to charge or setoff all sums owing on the Indebtedness against any and all such accounts and, at Lender's option, to administratively freeze all such accounts to allow Lender to protect Lender's charge and setoff rights provided in this paragraph. SUBORDINATION OF BORROWER'S DEBTS TO GUARANTOR. Guarantor agrees that the Indebtedness of Borrower to Lender, whether now existing or hereafter created, shall be superior to any claim that Guarantor may now have or hereafter acquire against Borrower, whether or not Borrower becomes insolvent. Guarantor hereby expressly subordinates any claim Guarantor may have against Borrower, upon any account whatsoever, to any claim that Lender may now or hereafter have against Borrower. In the event of insolvency and consequent liquidation of the assets of Borrower, through bankruptcy, by an assignment for the benefit of creditors, by voluntary liquidation, or otherwise, the assets of Borrower applicable to the payment of the claims of both Lender and Guarantor shall be paid to Lender and shall be first applied by Lender to the Indebtedness of Borrower to Lender. Guarantor does hereby assign to Lender all claims which it may have or acquire against Borrower or against any assignee or trustee in bankruptcy of Borrower; provided however, that such assignment shall be effective only for the purpose of assuring to Lender full payment in legal tender of the Indebtedness. If Lender so requests, any notes or credit agreements now or hereafter evidencing any debts or obligations of Borrower to Guarantor shall be marked with a legend that the same are subject to this Guaranty and shall be delivered to Lender. Guarantor agrees, and Lender is hereby authorized, in the name of Guarantor, from time to time to file financing statements and continuation statements and to execute documents and to take such other actions as Lender deems necessary or appropriate to perfect, preserve and enforce its rights under this Guaranty. MISCELLANEOUS PROVISIONS. The following miscellaneous provisions are a part of this Guaranty: Amendments. This Guaranty, together with any Related Documents, constitutes the entire understanding and agreement of the parties as to the matters set forth in this Guaranty. No alteration of or amendment to this Guaranty shall be effective unless given in writing and signed by the party or parties sought to be charged or bound by the alteration or amendment. Attorneys' Fees; Expenses. Guarantor agrees to pay upon dernand all of Lender's costs and expenses, including Lender's attorneys' fees and Lender's legal expenses, incurred in connection with the enforcement of this Guaranty. Lender may hire or pay someone else to help enforce this Guaranty, and Guarantor shall pay the costs and expenses of such enforcement. Costs and expenses include Lender's attorneys' fees and legal expenses whether or not there is a lawsuit, including attorneys' fees and legal expenses for bankruptcy proceedings (including efforts to modify or vacate any automat?c stay or injunction), appeals, and any anticipated post-judgment collection services. Guarantor also shall pay all court costs and such addi Tonal fees as may be directed by the court. Caption Headings. Caption headings in this Guaranty are for convenience purposes only and are not to be used to interpret or define the provisions of this Guaranty. Governing Law. This Guaranty will be governed by federal law applicable to Lender and, to the extent not preempted by federal law, the laws of the Commonwealth of Pennsylvania without regard to its conflicts of law provisions. This Guaranty has been accepted by Lender in the Commonwealth of Pennsylvania. COMMERCIAL GUARANTY Loan No: 010764273 (Continued) Page 3 Choice of Venue. If there is a lawsuit, Guarantor agrees upon Lender's request to submit to the jurisdiction of the courts of Cumberland County, Commonwealth of Pennsylvania Integration. Guarantor further agrees that Guarantor has read and fully understands the terms of this Guaranty; Guarantor has had the opportunity to be advised by Guarantor's attorney with respect to this Guaranty; the Guaranty fully reflects Guarantor's intentions and parol evidence is not required to interpret the terms of this Guaranty. Guarantor hereby indemnifies and holds Lender harmless from all losses, claims, damages, and costs (including Lender's attorneys' fees)j suffered or incurred by Lender as a result of any breach by Guarantor of the warranties, representations and agreements of this paragraph. Interpretation. In all cases where there is more than one Borrower or Guarantor, then all words used in this Guaranty in the singular shall be deemed to have been used in the plural where the context and construction so require; and where there is more than one Borrower named in this Guaranty or when this Guaranty is executed by more than one Guarantor, the words "Borrower" and "Guarantor" respectively shall mean all and any one or more of them. The Words "Guarantor,' "Borrower,' and 'Lender' include the heirs, successors, assigns, and transferees of each of them. If a court finds that any provision of this Guaranty is not valid or should not be enforced, that fact by itself will not mean that the rest of this Guaranty will not be valid or enforced. Therefore, a court will enforce the rest of the provisions of this Guaranty even if a provision of this Guaranty may be found to be invalid or unenforceable. If any one or more of Borrower or Guarantor are corporations, partnerships, limited li bility companies, or similar entities, it is not necessary for Lender to inquire into the powers of Borrower or Guarantor or of the officers, d?rectors, partners, managers, or other agents acting or purporting to act on their behalf, and any Loan indebtedness made or created in reliance upon the professed exercise of such powers shall be guaranteed under this Guaranty. Notices. Unless otherwise provided by applicable law, any notice required to be given under this Guaranty shall be given in writing, and, except for revocation notices by Guarantor, shall be effective when actually delivered, when actually received by taletacsimile (unless otherwise required by law), when deposited with a nationally, recognized overnight courier, or, if mailed, when deposited in the United States mail, as first class, certified or registered mail postage prepaid, directed to the addresses shown near the beginning of this Guaranty. All revocation notices by Guarantor shall be in writing andshall_ be effective upon delivery to Lender as provided in the section of this Guaranty entitled "DURATION OF GUARANTY.' Any party may change its address for notices under this Guaranty by giving formal written notice to the other parties, specifying that the purpose of th notice is to change the party's address. For notice purposes, Guarantor agrees to keep Lender informed at all times of Guarantor's cur ant address. Unless otherwise provided by applicable law, if there is more than one Guarantor, any notice given by Lender to any Guarant r is deemed to be notice given to all Guarantors. No Waiver by Lender. Lender shall not be deemed to have wailed any rights under this Guaranty unless such waiver is given in writing and signed by Lender. No delay or omission on the part of Lender' in exercising any right shall operate as a waiver of such right or any other right. A waiver by Lender of a provision of this Guaranty shall!,, not prejudice or constitute a waiver of Lender's right otherwise to demand strict compliance with that provision or any other provision of this Guaranty. No prior waiver by Lender, nor any course of dealing between Lender and Guarantor, shall constitute a waiver of any of Lender's rights or of any of Guarantor's obligations as to any future transactions. Whenever the consent of Lender is required under this Guaranty, the granting of such consent by Lender in any instance shall not constitute continuing consent to subsequent instances where such consent is required and in all cases such consent may be granted or withheld in the sole discretion of Lender. Successors and Assigns. The terms of this Guaranty shall be binding upon Guarantor, and upon Guarantor's heirs, personal representatives, successors, and assigns, and shall be enforceable by Lender and its successors and assigns. WAIVER OF JURY TRIAL. GUARANTOR IRREVOCABLY WAIVES ANY AND ALL RIGHT GUARANTOR MAY HAVE TO A TRIAL BY JURY IN ANY ACTION, PROCEEDING OR CLAIM OF ANY NATURE RELATING TO THIS GUARANTY, ANY RELATED DOCUMENTS, OR ANY DOCUMENTS EXECUTED IN CONNECTION WITH THIS GUARANTY OR ANY TRANSACTION CONTEMPLATED IN ANY OF SUCH DOCUMENTS. GUARANTOR ACKNOWLEDGES THAT THE FOREGOING WAIVER IS KNOWING AND VOLUNTARY. LIMITED RECOURSE AS TO NON-APPLICANT SPOUSE. Notwithstanding anything contained herein to the contrary, it is agreed that, unless an exception to the requirements of Regulation B of the Board of Governors of the Federal Reserve System applies in connection with the extension of the Indebtedness and the execution of this Guaranty, the spouse who is deemed not to be the "applicant for credit" for purposes of such regulation (the "Non-Applicant Spouse") shall be personally liable under this Guaranty only with respect to assets held jointly as of the date hereof or hereafter acquired, and the lien of any judgment, order or other relief against the Non-Applicant Spouse shall be limited thereto. Nothing herein, however, shall limit the Lender's rights against any person, firm or entity other than the Non-Applicant Spouse. AUTHORIZATION TO OBTAIN CREDIT REPORTS. If the Guarantor is/are an individual(s), by signing below, the undersigned individual(s), provides written authorization to Lender or its designee (and any assignee or potential assignee hereof) to obtain his/her/their personal credit profile(s) from one or more national credit bureaus. Such authorization shall extend to obtaining a credit profile(s) in considering any extension of credit to the Borrower or the Guarantor and subsequently for the purposes of update, renewal or extension of such credit or additional credit and for reviewing or collecting the resulting account. A photocopy or facsimile copy of this authorization shall be valid as the original. By signature below, I/we affirm my/our identity as the respective individlual/s identified in this Guaranty. DEFINITIONS. The following capitalized words and terms shall ha e the following meanings when used in this Guaranty. Unless specifically l stated to the contrary, all references to dollar amounts shall mean amounts in lawful money of the United States of America. Words and terms used in the singular shall include the plural, and the plural shall include the singular, as the context may require. Words and terms not otherwise defined in this Guaranty shall have the meanings attributed to such terms in the Uniform Commercial Code: Borrower. The word "Borrower" means LUFF LAWN & GARDEN, INC. and includes all co-signers and co-makers signing the Note. Guarantor. The word "Guarantor" means each and every person or entity signing this Guaranty, including without limitation JAMES A STOUFFER and KATHLEEN T. STOUFFER. Guaranty. The word "Guaranty" means the guaranty from Gualrantor to Lender, including without limitation a guaranty of all or part of the Note. Borrower's indebtedness to Lender as more particularly d scribed in this Guaranty. Indebtedness. The word "Indebtedness" means the indebtedness evidenced by the Note, or Related Documents, including all principal and interest together with all other indebtedness and costs and expanses for which Borrower is responsible under this Guaranty or under any of the Related Documents. In addition, the word "Indebtedness" includes all other obligations, debts and liabilities, plus interest thereon, of Borrower, or any one or more of them, to Lender, as well as a I claims by Lender against Borrower, or any one or more of them, whether existing now or later; whether they are voluntary or involunta , due or not due, direct or indirect, absolute or contingent, liquidated or unfiquidated; whether Borrower may be liable individually or jot tly with others; whether Borrower may be obligated as a guarantor, surety, accommodation party or otherwise; whether recovery upon such indebtedness may be or hereafter may become barred by any statute of limitations; and whether such indebtedness may be or hereafter may become otherwise unenforceable. Lender. The word 'Lender' means PNC Bank, National Association its successors and assigns. 14) COMMEI Loan No: 010764273 L GUARANTY inued) Page 4 Note. The word "Note" means the promissory note dated Borrower to Lender, together with all renewals of, extensions the promissory note or agreement. Related Documents. The words "Related Documents" mes agreements, guaranties, security agreements, mortgages, dei agreements and documents, whether now or hereafter existinc November 9, 2005, in the original principal amount of $40,000.00 from of, modifications of, refinancings of, consolidations of, and substitutions for all promissory notes, credit agreements, loan agreements, environmental s of trust, security deeds, collateral mortgages, and all other instruments, executed in connection with the Indebtedness.. CONFESSION OF JUDGEMENT. THE GUARANTOR HEREBY E POWERS ANY ATTORNEY OF ANY COURT OF RECORD, AFTER THE OCCURRENCE OF ANY EVENT OF DEFAULT HEREUNDER, TO AP EAR FOR THE GUARANTOR AND, WITH OR WITHOUT COMPLAINT FILED, CONFESS JUDGMENT, OR A SERIES OF JUDGMENTS, AGAINS THE GUARANTOR IN FAVOR OF LENDER OR ANY HOLDER HEREOF FOR THE ENTIRE PRINCIPAL BALANCE OF THIS GUARANTY, ALL ACC WED 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 $1,000 ADDED AS A REASONABLE ATTORNEY'S FEE, AND FOR DOI G SO, THIS NOTE OR A COPY VERIFIED BY AFFIDAVIT SHALL BE A SUFFICIENT WARRANT. THE GUARANTOR HEREBY FOREVER WAIVES AND RELEASES ALL ERRORS IN SAID PROCEEDINGS AND ALL RIGHTS OF APPEAL AND ALL RELIEF FROM ANY AND ALL APPR ISEMENT, STAY OR EXEMPTION LAWS OF ANY STATE NOW IN FORCE OR HEREAFTER ENACTED. INTEREST ON ANY SUCH JUDGMENT SH LL ACCRUE AT THE DEFAULT RATE. NO SINGLE EXERCISE OF THE FOREGOING POWER TO CONFE EXHAUST THE POWER. WHETHER OR NOT ANY SUCH EXERCIS BUT THE POWER SHALL CONTINUE UNDIMINISHED AND IT MAY UNTIL SUCH TIME AS LENDER SHALL HAVE RECEIVED PAYMENI ATTORNEY'S COMMISSION PROVIDED FOR IN THE PRECEDING ESTABLISHING A SUM CERTAIN), THE AMOUNT OF ATTORNEYS EXCEED THE ACTUAL ATTORNEYS' FEES INCURRED BY LENDER. GUARANTOR ACKNOWLEDGES HAVING READ ALL THE PROVIS ITS TERMS. THIS COMMERCIAL GUARANTY IS DATED NOVEMBI THIS GUARANTY IS GIVEN UNDER SEAL AND IT IS INTENDED Th OF A SEALED INSTRUMENT ACCORDING TO LAW. iS JUDGMENT, OR A SERIES OF JUDGMENTS, SHALL BE DEEMED TO E SHALL BE HELD BY ANY COURT TO BE INVALID, VOIDABLE, OR VOID, BE EXERCISED FROM TIME TO TIME AS OFTEN AS LENDER SHALL ELECT IN FULL OF THE DEBT, INTEREST AND COSTS. NOTWITHSTANDING THE 'ARAGRAPH {WHICH IS INCLUDED IN THE WARRANT FOR PURPOSES OF FEES THAT LENDER MAY RECOVER FROM THE GUARANTOR SHALL NOT VS OF THIS COMMERCIAL GUARANTY AND GUARANTOR AGREES TO 9, 2005. 'THIS GUARANTY IS AND SHALL CONSTITUTE AND HAVE THE EFFECT GUARANTOR: X (seal) JA S A STOUFFER X ok " 0 # W t (Seal) KA LEEN T R ' LASER MO -$. - 5.22.00.005 G1,,. 1NI,M F w S,W c 1"7, 2005. M Rq- Mrl & - M 7ACMPUE2p.FC T -2327MI ms !?age 2 'o£ 1,1 PROMISSORY NOTE Principal Amount: $40,000.00 Initial Date: 6.750% Date of Note: November S. 2005 PROMISE TO PAY. LUFF LAWN & GARDEN, INC. ("Borrower"l romises to pay to PNC Bank, National Association ("Lender"), or order, in lawful money of the United States of America, the principal amount of Forty Thousand & 001100 Dollars (540,000.00) or so much as may be outstanding, together with interest on the unpaid outstanding prin ipal balance of each advance. Interest shall be calculated from the date of each advance until repayment of each advance. PAYMENT. Borrower will pay this loan in accordance with the following payment schedule: Borrower will pay regular monthly payments of accrued inters t beginning on the first day of the Bilfing Cycle after the initial advance, and all subsequent interest payments are due on the some day w each month after that. Borrower will pay this loan in one payment of all outstanding principal plus all accrued interest on the Expiral on Date. Borrower may borrow, repay and reborrow hereunder until the Expiration Date, subject to the terms and conditions of this ate."Notwithstanding anything contained herein to the contrary, during the first twelve (12) Billing Cycles, the interest rate on this to shag be a fixed rate of 6.75%." The "Expiration Date" shall mean NOVEMBER 9, 2006, or such later date as may be designate by written notice from Lender to Borrower but in no event after the tenth anniversary of this Note. Borrower acknowledges and agree that in no event shall the aggregate unpaid principal amount of advances under this Note exceed the face amount of this Note. Unless otherwise agreed or required by applicable law, payments ill be applied first to any accrued unpaid interest; then to principal: then to any unpaid collection costs; and then to any Into charges. Inters t on this Note is computed on a 3651365 simple interest basis; that is, by applying the ratio of the annual interest rate over the number of ys in a year (366 during leap years). multiplied by the outstanding principal balance, multiplied by the actual number of days the principal b ce is outstanding. Borrower will pay Lender at Lender's address shown above or at such other place as Lender may designate in writing. VARIABLE INTEREST RATE. The interest rate on this Note is subject to change from time to time based on changes in an independent index which is the the highest Prime Rate as published in the "Money Rates" section of The Wall Street Journal (the "Index"). The Index is not necessarily the lowest rate charged by Lender on its loans. If the Index becomes unavailable during the term of this loan, Lender may designate a substitute index after notice to Borrower. Lender will tell Borrower the current Index rate upon Borrower's request. The interest rate change will not occur more often than each month. The Index for a Billing iICycle is determined on the first day of that cycle based on the Index for the last day of the preceding calendar month which is reported. Interest on this Note is computed on the basis of a year of 366/365 days, by applying the ratio of the annual interest rate on the first day of the Billing Cycle over a year of 366/365 days to obtain a daily periodic rate, multiplied by the average daily balance during the Billing Cycle, multiplied by the number of days in the Billing Cycle. Billing Cycle means the monthly interval between regular periodic statements. Borrower understands that Lender may make loans based on other rates as well. The Index currently is 6.750% per annum. The interest rate to be applied to the unpaid principal balance of this Note will be at a rate equal to the Index, resulting in an initial rate of 6.750% per annum. NOTICE: !Under no circumstances will the interest rate on this Note be more than the maximum rate allowed by applicable law. PREPAYMENT. Borrower may pay without penalty all or a portion of the amount owed earlier than it is due. Early payments will not, unless agreed to by Lender in writing, relieve Borrower of Borrower's obligation to continue to make payments of accrued unpaid interest. Rather, early payments will reduce the principal balance due. Borrower agreesnot to send Lender payments marked "paid in full", "without recourse", or similar language. If Borrower sends such a payment, Lender may $ccept it without losing any of Lender's rights under this Note, and Borrower will remain obligated to pay any further amount owed to Lender. II written communications concerning disputed amounts, including any check or other payment instrument that indicates that the payment constitutes "payment in full" of the amount owed or that is tendered with other conditions or limitations or as full satisfaction of a disputed amount must be mailed or delivered to: PNC Bank, National Association, Attn: Doc Prep/Operations Department - BBCAC, 8800 Tinicum Boulevard 5th Floor Philadelphia, PA 19153. LATE CHARGE. If a payment is 15 days or more late, Borrower will be charged 5.000% of the regularly scheduled payment or $100.00, whichever is less. INTEREST AFTER DEFAULT. Upon default, including failure to pays, upon final maturity, Lender, at its option, may, if permitted under applicable law, increase the variable interest rate on this Note to 5.000 percentage points over the Index. The interest rate will not exceed the maximum rate permitted by applicable law. If judgment is entered in connection with this Note, interest will continue to accrue on this Note after judgment at the interest rate applicable to this Note at the time judgment is entered. DEFAULT. Each of the following shall constitute an event of default CEvent of Default"I under this Note: Payment Default. Borrower fails to make any payment when due. Other Defaults. Borrower or Grantor fails to comply with or to perform any other term, obligation, covenant or condition contained in this Note or in any of the related documents or to comply with or io perform any term, obligation, covenant or condition contained in any other agreement between Lender and Borrower. Default in Favor of Third Parties. Borrower or any Grantor defaults under any loan, extension of credit, security agreement, purchase or sales agreement, or any other agreement, in favor of any other creditor or person that may materially affect any of Borrower's property or Borrower's ability to repay this Note or perform Borrower's obligations under this Note or any of the related documents. False Statements. Any warranty, representation or furnished to Lender by Borrower or on Borrower's behalf under this Note or the related documents is false or misleadin ow or at the time made or furnished or becomes false or misleading at any time thereafter. 11 XHIBIT ss, the insolvency of Borrower, the appointment of a Insolvency, The dissolution or termination of Borr ?? l.. 1'i receiver for any part of Borrower's property, a 1 /^l f creditors, any type of creditor workout, or the commencement of any proceeding under any bankr 3 l-? nst Borrower. edings, whether by judicial proceeding, self-help, Creditor or Forfeiture Proceedings. Commencem ce Borrower: LUFF LAWN & GARDEN, INC. (SSN: 23-2248765) Lender: PNC Bank, National Association 1590 STATE STREET Business Banking CAMP HILL, PA 17011 4242 Carlisle Pike 4b160, Camp Hill. PA 17001 (Page 3 -ol 4.) PROMISSORY NOTE Loan No: 010764273 (Continued) Page 2 repossession or any other method, by any creditor of Borrower or by any governmental agency against any collateral securing the loan. This includes a garnishment of any of Borrower's accounts, including deposit accounts, with Lender. However, this Event of Default shall not apply if there is a good faith dispute by Borrower as to the validity or reasonableness of the claim which is the basis of the creditor or forfeiture proceeding and if Borrower gives Lender written notice of the creditor or forfeiture proceeding and deposits with Lender monies or a surety bond for the creditor or forfeiture proceeding, in an amount determined by Lender, in its sole discretion, as being an adequate reserve or bond for the dispute. Events Affecting Guarantor. Any of the preceding events occurs with respect to any Guarantor of any of the indebtedness or any Guarantor dies or becomes incompetent, or revokes or disputes the validity of, or liability under, any guaranty of the indebtedness evidenced by this Note. Change In Ownership. Any change in ownership of twenty-five percent 125%) or more of the common stock of Borrower. Adverse Change. A material adverse change occurs in Borrower's financial condition, or Lender believes the prospect of payment or performance of this Note is impaired. Insecurity. Lender in good faith believes itself insecure. LENDER'S RIGHTS. Upon default, Lender may, after giving such notices as required by applicable law, declare the entire unpaid principal balance on this Note and all accrued unpaid interest immediately due, without notice, and then Borrower will pay that amount. ATTORNEYS' FEES: EXPENSES. Lender may hire or pay someone else to help collect this Note if Borrower does not pay. Borrower will pay Lender that amount. This includes, subject to any limits under applicable law, Lender's attorneys' fees and Lender's legal expenses, whether or not there is a lawsuit, including attorneys' fees, expenses for bankruptcy proceedings lincluding efforts to modify or vacate any automatic stay or injunction), appeals and any anticipated post-judgement collection services. It not prohibited by applicable law, Borrower also will pay any court costs, in addition to all other sums provided by law. WAIVER OF JURY TRIAL. THE BORROWER IRREVOCABLY WA114ES ANY AND ALL RIGHTS THE BORROWER MAY HAVE TO A TRIAL BY JURY IN ANY ACTION, 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. GOVERNING LAW. This Note will be governed by federal law applicable to Lender and, to the extent not preempted by federal law, the laws of the Commonwealth of Pennsylvania without regard to its conflicts of law provisions. This Note has been accepted by Lender in the Commonwealth of Pennsylvania. CHOICE OF VENUE. If there is a lawsuit, Borrower agrees upon Lender's request to submit to the jurisdiction of the courts of Cumberland County, Commonwealth of Pennsylvania. RIGHT OF SETOFF. In addition to all liens upon and rights of setoff against Borrower's money, securities or other property given to Lender by law, Lender shall have, with respect to Borrower's obligations to Lender under this Note and to the extent permitted by law, a contractual possessory security interest in and a contractual right of setoff against, and Borrower hereby assigns, conveys, delivers, pledges and transfers to Lender all of Borrower's right, title and interest in and to, all of Borrower's deposits, moneys, securities and other property now or hereafter in the possession of or on deposit with, or in transit to, Lender 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 Borrower. 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 Lender, although Lender may enter such setoff on its books and records at a later time. COLLATERAL. Borrower acknowledges this Note is secured by the following collateral described in the security instrument listed herein: collateral described in a Commercial Security Agreement dated November 9, 2005. LINE OF CREDIT. This Note evidences a revolving line of credit. Advances under this Note may be requested either orally or in writing by Borrower or by an authorized person. Lender may, but need not, require that all oral requests be confirmed in writing. All communications, instructions, or directions by telephone or otherwise to Lender are to be directed to Lender's office shown above. Borrower agrees to be liable for all sums either: (A) advanced in accordance with the instructions of an authorized person or (B) credited to any of Borrower's accounts with Lender. The unpaid principal balance owing on this Note at any time may be evidenced by endorsements on this Note or by Lender's internal records, including daily computer print-outs. Lender will have no obligation to advance funds under this Note if: (A) Borrower or any guarantor is in default under the terms of this Note or any agreement that Borrower or any guarantor has with Lender, including any agreement made in connection with the signing of this Note; (B) Borrower or any guarantor ceases doing business or is insolvent; (C) any guarantor seeks, claims or otherwise attempts to limit, modify or revoke such guarantor's guarantee of this Note or any other loan with Lender; (D) Borrower has applied funds provided pursuant to this Note for purposes other than those authorized by Lender: or (E) Lender in good faith believes itself insecure. FINANCIAL INFORMATION PROVISION, Borrower agrees to deliver any financial and other business information concerning Borrower that Lender may request from time to time, such as annual and interim financial statements fall of which shall be prepared in accordance with generally accepted accounting principles) and federal income tax returns. DEPOSITORY. Borrower will establish and maintain, with Lender, Borrower's primary depository account(s). If Borrower fails to establish and/or maintain its primary depository account(s) with Lender, Lender may, at its option, upon thirty (30) days notice to Borrower, increase the interest rate payable by Borrower under this Note by up to 1.00 percentage points (1.00%). Lender's right to increase the interest rate pursuant to this paragraph shall be in addition to any other rights or remedies Lender may have under this Note, all of which are hereby reserved, and shall not constitute a waiver, release or limitation upon Lender's exercise of any such rights or remedies. OVERDRAFT PROTECTION. If Borrower elects Overdraft Protection in connection with the Line of Credit evidenced by this Note by so indicating in the space provided below, during the Draw Period, Lender will !make a deposit to the business checking account with Lender designated below or in a subsequent writing by Borrower whenever a withdrawal is made from that checking account, either by writing a check from the checking account or in some other way, in an amount which is more money than the balance in that checking account. The amount which Lender will deposit will be the amount by which the withdrawal exceeds the balance in the checking account, rounded up to the next whole $1.00; however, the amount which will be deposited will not be less than $50.00. Lender will charge the amount of the deposit as an advance under the Line of Credit. Lender does not have to make a deposit to the checking account if a deposit will cause the balance of this account to exceed the maximum amount of the Line of Credit evidenced by this Note or would otherwise violate this Note or any other document(s) executed in connection with the Line of Credit. Checking account checks which are returned will be subject to Lender's regular overdraft charges. Overdraft Protection will not be available during the Repayment Period, YESL Borrower wants Overdraft Protection for PNC Bank Checking Account (Page Loan No: 010764273 PROMISSORY NOTE (Continued) Page 3 AUTOMATIC DEBIT OF PAYMENTS. The Borrower hereby authorizes the Lander to charge the Borrower's deposit account at the Lender for any payment when due hereunder. If the Borrower revokes this authorization for any reason whatsoever or fails to maintain a deposit account with the Lender which may be charged, the Lender may, at its option, upon thirty (30) days notice to the Borrower, increase the interest rate payable by the Borrower under this Note by twenty-five (25) basis points (0.25%). TERMINATION OF LINE OF CREDIT. Upon sixty 160) days prior written notice to Borrower, Lender may terminate the Line of Credit, with or without cause, and demand full payment of the entire unpaid principal balance of this Note, and all accrued and unpaid interest on the balance, and all other amounts due in accordance with the terms of this Note. Unless Lender's notice provides otherwise, Lender will have no further obligation to advance funds under this Note. CONVERSION TO TERM LOAN. Lender retains the right to convert all or any part of the outstanding indebtedness under this Note into an amortizing term loan, with or without cause, upon providing sixty (60) days prior written notice to Borrower (the "Conversion Notice'). If Lender exercise this right, Lender will compute a new monthly payment with respect to the part of the indebtedness so converted (the 'Term Loan Portion'), and Borrower will be advised of such new monthly payment with respect to the Term Loan Portion in the Conversion Notice. Monthly payments on the Term Loan Portion following the Conversion Notice shall be based upon an amortization period specified in the Conversion Notice (the "Amortization Period"). Subsequent payments on the Term Loan Portion shall be determined monthly and shall be in the amounts determined by Lender to be necessary to fully amortize the then outstanding principal balance so converted over the then remaining Amortization Period at the effective interest rate on this Note as of the date the amount of such payment is calculated by Lender. All outstanding principal and accrued interest will be due on the last day of the Amortization Period. All of the provisions of this Note and any Related Documents shall apply to the Term Loan Portion except to the extent inconsistent with this paragraph. SUCCESSOR INTERESTS. The terms of this Note shall be binding upon Borrower, and upon Borrower's heirs, personal representatives, successors and assigns, and shall inure to the benefit of Lender and its successors and assigns. GENERAL PROVISIONS. Lender may delay or forgo enforcing any of its rights or remedies under this Note without losing them. Borrower and any other person who signs, guarantees or endorses this Note, to the extent allowed by law, waive presentment, demand for payment, and notice of dishonor. Upon any change in the terms of this Note, and unless otherwise expressly stated in writing, no party who signs this Note, whether as maker, guarantor, accommodation maker or endorser, shall be released from liability. All such parties agree that Lender may renew or extend (repeatedly and for any length of time) this loan or release any parry or guarantor or collateral; or impair, fail to realize upon or perfect Lender's security interest in the collateral; and take any other action deemed necessary by Lender without the consent of or notice to anyone. All such parties also agree that Lender may modify this loan without the consent of or notice to anyone other than the party with whom the modification is made. The obligations under this Note are joint and several. If any portion of this Note is for any reason determined to be unenforceable, it will not affect the enforceability of any other provisions of this Note. CONFESSION OF JUDGEMENT. 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 LENDER 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 APPRAISFMENT, 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 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 LENDER SHALL ELECT UNTIL SUCH TIME AS LENDER SHALL HAVE RECEIVED PAYMENT IN FULL 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 LENDER MAY RECOVER FROM THE BORROWER SHALL NOT EXCEED THE ACTUAL ATTORNEYS' FEES INCURRED BY LENDER. PRIOR TO SIGNING THIS NOTE. BORROWER READ AND UNDERSTOOD ALL THE PROVISIONS OF THIS NOTE. INCLUDING THE VARIABLE INTEREST RATE PROVISIONS. BORROWER AGREES TO THE TERMS OF THE NOTE. THIS NOTE IS GIVEN UNDER SEAL AND IT IS INTENDED THAT THIS NOTE IS AND SHALL CONSTITUTE AND HAVE THE EFFECT OF A SEALED INSTRUMENT ACCORDING TO LAW. BORROWER: LUFF LAWN & GARDEN, INC. 01 dkA.,fA 444/_-Z S (Seal) B JAPES A. STO FE , P si t of LUFF LAWN & GA DEN, INC. B C *KL EK T. STO F E , V esr t of LUFF GARDEN. INC. -• 4 EnH10l,n V_,17,ooft CaY.11"wfi," WSsYtF 1w 1"7.2006. M%4-$4- -M TA n.n.D=K -.=-I _.f IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA PNC BANK, NATIONAL ASSOCIATION, Plaintiff, No. vs. JAMES A. STOUFFER and ) KATHLEEN T. STOUFFER, ) Defendants. ) AFFIDAVIT OF NON-MILITARY SERVICE COMMONWEALTH OF PENNSYLVANIA ) SS. COUNTY OF ALLEGHENY ) I, Darnella Ganaway, being duly sworn according to law, hereby depose and say that the Defendants are not members of the military service of the United States of America to the best of my knowledge, information and belief. Attorney Relations Sworn and subscribed before me this Z (W ay of1!9?/ 2008. /JA I ?? /) r . It Notary Public My commission expires: /1?9? Z?lj BANK_FIN:316540-1 000011-134928 OOMMONWEALTH OF PE"YLVAMA Notarial &W ? w? *Cm w"on EON Nov. 9.7011 Member. PanMyhranla Asseoiatlon of Notarks ? •, - ? e ? a ? . - ? - ' IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA PNC BANK, NATIONAL ASSOCIATION, Plaintiff, vs. JAMES A. STOUFFER and KATHLEEN T. STOUFFER, Defendants. No. CERTIFICATE OF RESIDENCE I hereby certify that the precise address of Plaintiff is: Fifth Avenue and Wood Street Pittsburgh, Pennsylvania 15222 and that the last known address of Defendants is: 5213 Royal Drive Mechanicsburg, PA 17055 By Donna M. Donaher, Esquire Attorney for PNC Bank, National Association AFFIDAVIT The undersigned hereby certifies that the judgment to be entered in this action is not being entered against a natural person in connection with a consumer credit transaction. To the contrary, the underlying transaction is a commercial transaction. No, -V\` Donna M. Donaher, Esquire Attorney for PNC Bank, National Association Sworn to and subsbed bef.Qre me this 5 day of A? ^ . QA --- 2008. Notary Public BANK_FI N:316533-1 000011-134928 COMMONWEALTH OF PENNSYLVANIA Notarial Seal Melissa Szakay, Notary Public City Of Pittsburgh, Allegheny County My Commission Expires Oct. 31, 2009 Member, Pennsvlvania Association of Notaries ACT 105 OF 2000 NOTICE A JUDGMENT HAS BEEN ENTERED AGAINST YOU BY CONFESSION OF JUDGMENT. PURSUANT TO 42 PA. C.S.A. §2737.1, IF YOU WERE INCORRECTLY IDENTIFIED AS A DEFENDANT IN THE COMPLAINT IN CONFESSION OF JUDGMENT, YOU MAY BE ENTITLED TO COSTS AND REASONABLE ATTORNEY FEES AS DETERMINED BY THE COURT. YOU MAY TAKE ACTION TO STRIKE THE JUDGMENT BY FOLLOWING THE PROCEDURE IN RULE 2959 WHICH IS AS FOLLOWS: 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 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 (see text of Rule 440 reprinted below). (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 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 is pending. Rule 440. Service of Legal Papers other than Original Process (a) (1) Copies of all legal papers other than original process filed in an action or served upon any party to an action shall be served upon every other party to the action. Service shall be made (i) by handing or mailing a copy to or leaving a copy for each party at the address of the party's attorney of record endorsed on an appearance or prior pleading of the party, or at such other address as a party may agree, or Note: Such other address as a party may agree might include a mailbox in the Prothonotary's office or an e-mail address. For electronic service by means other than facsimile transmission, see Rule 205.4(g). (ii) by transmitting a copy by facsimile to the party's attorney of record as provided by subdivision (d). (2) (i) If there is no attorney of record, service shall be made by handing a copy to the party or by mailing a copy to or leaving a copy for the party at the address endorsed on an appearance or prior pleading or the residence or place of business of the party, or by transmitting a copy by facsimile as provided by subdivision (d). (ii) If such service cannot be made, service shall be made by leaving a copy at or mailing a copy to the last known address of the party to be served. Note: This rule applies to the service upon a party of all legal papers other than original process and includes, but is not limited to, all other pleadings as well as motions, petitions, answers thereto, rules, notices, interrogatories and answers thereto. Original process is served under Rule 400 et seq. (b) Service by mail of legal papers other than original process is complete upon mailing. (c) If service of legal papers other than original process is to be made by the sheriff, he shall notify by ordinary mail the party requesting service to be made that service has or has not been made upon a named party or person. BANK_FIN:316533-1 000011-134928 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA PNC BANK, NATIONAL ASSOCIATION, Plaintiff, No. D W,' q6 Gig,1 4 er'io- vs. JAMES A. STOUFFER and KATHLEEN T. STOUFFER, Defendants AFFIDAVIT I, Darnella Ganaway, Attorney Relations Manager, PNC Bank, National Association, hereby certify that the facts set forth in the foregoing Complaint in Confession of Judgment are true and correct to the best of my knowledge, information and belief; that the Exhibits attached to the Complaint in Confession of Judgment are true and correct copies of the originals; and that the Borrower is in default under the Notes (as those are defined in the Complaint); that the underlying transactions giving rise to this action are commercial in nature and are not consumer credit transactions against a natural person; and that I am authorized to make this Affidavit. PNC Bares, National Association By: Sworn to and subscribed before me this day of fit?iMR Y , 2008. twuWaway ey Relations r COMMONWEALTH OF PENNSYLVANIA Notarial Seal GYn Rohisai?, Notary Pubfico Notary Public InW mBm.Aq@gh yCa#* My commission expires://, q, -z-&4 MY CormnWon EowNoKQ9 2Di1 °Nembe?, Pennayivania nssoda0orr of Nolatss BANK_FI N:316543-1 000011-134928 VERIFICATION The undersigned, Darnella Ganaway, hereby verifies the statements of fact contained in the attached Complaint in Confession of Judgment to be true and correct according to his personal knowledge, information and belief, and further pledges that this verification is made subject to the penalties of 18 Pa. C.S.A. §4904 relating to unsworn falsification to authorities. Date: 2,5 'q(3 By: cag me anaway - `? Attorney Relations Manager o ? "?^ ? c s ?_,? w t0 ? ? ? Q ?j i ? f -? - rn ? ,L "ti -- ? a ?:.v; c J .- ? ` ?` ? ,- b ? '- ' __, ? ? ` _ ?? _ t l t ? ?? ••..i IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA PNC BANK, NATIONAL ASSOCIATION, Plaintiff, No. ov,96&- ft<M vs. JAMES A. STOUFFER and KATHLEEN T. STOUFFER, Defendants. TO: Kathleen T. Stouffer 5213 Royal Drive Mechanicsburg, PA 17055 NOTICE OF ENTRY OF JUDGMENT Please take notice that on Fl If , 2008, a Judgment by Confession of Judgment, was entered against you in the court and at docket term and number set forth above. The amount of the Judgment is $45,700.52, plus costs. 1!"IJIA & W W Prot notary, rla County IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA PNC BANK, NATIONAL ASSOCIATION, Plaintiff, No. bft- q 6 k vs. JAMES A. STOUFFER and KATHLEEN T. STOUFFER, Defendants. TO: James A. Stouffer 5213 Royal Drive Mechanicsburg, PA 17055 NOTICE OF ENTRY OF JUDGMENT Please take notice that on Feh II , 2008, a Judgment by Confession of Judgment, was entered against you in the court and at docket term and number set forth above. The amount of the Judgment is $45,700.52, plus costs. &17*Q e Pr honota be nd County IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA PNC BANK, NATIONAL ASSOCIATION, Plaintiff, vs. JAMES A. STOUFFER and KATHLEEN T. STOUFFER, CIVIL DIVISION NO. 08-968 PRAECIPE TO VACATE JUDGMENT Filed on behalf of Plaintiff, PNC Bank, National Association Defendants. Code: Counsel of Record for This Party: Donna M. Donaher, Esquire Pa. I.D. #53165 TUCKER ARENSBERG, P.C. Firm #287 1500 One PPG Place Pittsburgh, PA 15222 (412) 566-1212 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA PNC BANK, NATIONAL ASSOCIATION, Plaintiff, vs. JAMES A. STOUFFER and KATHLEEN T. STOUFFER, Defendants. No. 08-968 PRAECIPE TO VACATE JUDGMENT TO: PROTHONOTARY OF CUMBERLAND COUNTY Kindly vacate the judgment entered in favor of PNC Bank, National Association and against the Defendants in the above-referenced case. Sworn to and subsr,'"' ?ibed before ,me this tt?? day of -4--- , 2008. TUCKER ARENSBERG, P.C. By /"2,8 ,,4 Donna M. Donaher, 1500 One PPG Place Pittsburgh, PA 15222 (412) 566-1212 Attorneys for Plaintiff r Cyf?mL Notary Public_-, COMWpNWEALTH OF PENNSYLVANIA _TIN:325256-1 000011-134928 NOtarial Sea] L49kn szahay, Notary Public CIV q pgsburyh, Allegheny County My Vision Expires Oct. 31,2009 Member. Pennsylvania ssxr. tp+an of Notaries L