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HomeMy WebLinkAbout09-4635COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION PNC BANK, NATIONAL ASSOCIATION, Plaintiff V. MICHAEL J. CARACCI and PATRICIA M. CARACCI, Defendants DOCKET NO. oq - y (o36 e IV&[lGf'A CONFESSION OF JUDGMENT :PREVIOUSLY ASSIGNED TO: N/A CONFESSION 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 Defendants and confess judgment in favor of the Plaintiff and against the Defendants as follows: a. b. C. d. C. Principal Interest to June 30, 2009 Late Charges Satisfaction Fees Attorneys' Fees TOTAL: $297,442.16 $ 14,862.41 $ 1,760.02 $ 38.50 $ 31,230.46 $345,333.55, plus interest, other expenses, fees and costs Respectfully submitted, McNees Wallace & Nurick LLC Date: July 8, 2009 By: G ffrey S'S1Su ,Esquire S e Cou D #24848 100 Pine Stree , PO Box 1166 Harrisburg, PA 17108-1.166 (717) 237-5439 Attorneys for Plaintiff, PNC Bank, N. A. COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION PNC BANK, NATIONAL ASSOCIATION, DOCKET NO. Plaintiff V. CONFESSION OF JUDGMENT MICHAEL J. CARACCI and PATRICIA M. CARACCI, Defendants :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, PA 17011 (the "Plaintiff") 2. The Defendants, Michael J. Caracci and Patricia M. Caracci (together "Defendants"), are adult individuals whose last known address is 7 North Hill Drive, Mount Holly, NJ 08060. 3. The Defendants executed and delivered to the Plaintiff an SBA Unconditional Guarantee dated May 10, 2007 (the "Guarantee"), a true and correct photostatic reproduction of the original of which is attached hereto as Exhibit "A" and made a part hereof. 4. The Defendants executed and delivered to the Plaintiff a Disclosure for Confession of Judgment dated May 10, 2007 (the "Disclosure"), a true and correct photostatic reproduction of the original of which is attached hereto as Exhibit "B" and made a part hereof. 5. Under the Guarantee, the Defendants guaranteed to the Plaintiff the payment of all amounts due to the Plaintiff by D & C Tanning Corp d/b/a Hollywood Tans (the "Debtor") under the Promissory Note dated May 10, 2007, for a Loan (the "Loan") in the original principal amount of Three Hundred Twenty-Seven Thousand and Two Hundred Dollars ($327,200.00) (the "Note"). A true and correct photostatic reproduction of the original Note is attached hereto as Exhibit "C" and made a part hereof. 6. The Plaintiff has demanded payment in full of the Loan from the Debtor, and the Debtor is in default of the Debtor's obligation to make payment in full of the Loan to the Plaintiff as required in the Note and/or the Guaranty. The Plaintiff has also demanded payment in full from the Defendants as provided in the Guarantee, and the Defendants have failed to make payment in full of the Loan to the Plaintiff, as required in the Guarantee. As a result of the Plaintiffs demand for payment of the Loan and the Debtor's and/or Defendants' default for failure to make payment of the Loan, all amounts outstanding under or in connection with the Loan as provided in the Note and the Guarantee are now due and payable in full by the Debtor and/or the Defendants. A copy of the Plaintiffs demand is attached hereto as Exhibit "D" and made a part hereof. 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 Guarantee or the Note. 9. Judgment has not been entered on the Guarantee in any jurisdiction. 10. An itemized computation of the amount due to the Plaintiff from the Defendants under the Guarantee as of June 30, 2009, is as follows: a. Principal $297,442.16 b. Interest $ 14,862.41 C. Late Charges $ 1,760.02 d. Satisfaction Fees $ 38.50 e. Attorneys' Fees $ 31,230.46 TOTAL: $345,333.55 11. Interest continues to accrue at the rate of $18.84 per day through the date of payment, including on and after the date of entry of judgment on this Complaint. WHEREFORE, Plaintiff, PNC Bank, National Association, demands judgment against the Defendants, Michael J. Caracci and Patricia M. Caracci, in the amount of Three Hundred Forty- Five Thousand Three Hundred Thirty-Three and 551100 Dollars ($345,333.55), plus interest at the rate of $18.84 per day 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 may be entitled. Date: July 8, 2009 Respectfully submitted, McNees Wallace & LLC By: Sup i rCourt ID #24848 100 Pine Street, PO Box 1166 Harrisburg, PA 17108-1166 (717) 237-5439 Attorneys for Plaintiff, PNC Bank, N. A. COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION PNC BANK, NATIONAL ASSOCIATION, : DOCKET NO. Plaintiff V. MICHAEL J. CARACCI and PATRICIA M. CARACCI, CONFESSION OF JUDGMENT Defendants :PREVIOUSLY ASSIGNED TO: N/A VERIFICATION I, Stephen Landis, Assistant Vice President of 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 Complaint 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 unworn falsification to authorities. PNC BANK, NATIONAL ASSOCIATION Date: June 'kQ, 2009 By: Stephe Landis Assistant Vice President EXHIBIT A (Page S of 5) U.S. 9me11 &Wnm Adv&hfteUve AT U.S. Small Business Administration UNCONDITIONAL GUARANTEE Fill SBA Loan # PLP 24097950-10 SBA Loan Name Hollywood Tans Guarantor Michael J. Caracci Patricia M. Caracci Borrower D & C Tanning Corp dba Hollywood Tans Lender PNC BANK, National Association Date 5-- 14-e Note Amount 327,200.00 1. GUARANTEE: Guarantor unconditionally guarantees payment to Lender of all amounts owing under the Note, This Guarantee remains in effect until the Note is paid in full. Guarantor must pay all amounts due under the Note when Lender makes written demand upon Guarantor. Lender is not required to seek payment from any other source before demanding payment from Guarantor. 2. NOTE: The "Note" is the promissory note dated in the principal amount of THREE HUNDRED TWENTY SEVEN THOUSAND TWO HUNDRED ----00/100 Dollars, from Borrower to Lender. It includes any assumption, renewal, substitution, or replacement of the Note, and multiple notes under a fine of credit. 3. DEFINITIONS: "Collateral" means any property taken as security for payment of the Note or any guarantee of the Note. "Loan" means the loan evidenced by the Note. "Loan Documents" means the documents related to the Loan signed by Borrower, Guarantor or any other guarantor, or anyone who pledges Collateral. "SBA" means the Small Business Administration, an Agency of the United States of America. SBA Form 148 (10198) previous edivom obsoleEe. Pape 115 Walters. Kluwer Financial Services, St. Cloud, MN (Page 2 of 5) 4. LENDER'S GENERAL POWERS: Lender may take any of the following actions at any time, without notice, without Guarantor's consent, and without making demand upon Guarantor. A. Modify the terms of the Note or any other Loan Document except to increase the amounts due under the Note; B. Refrain from taking any action on the Note, the Collateral, or any guarantee; C. Release any Borrower or any guarantor of the Note; D. Compromise or settle with the Borrower or any guarantor of the Note; E. Substitute or release any of the Collateral, whether or not Lender receives anything in return; F. Foreclose upon or otherwise obtain, and dispose of, any Collateral at public or private sale, with or without advertisement; G. Bid or buy at any sale of Collateral by Lender or any other lienholder, at any price Lender chooses; and H. Exercise any rights it has, including those in the Note and other Loan Documents. These actions will not release or reduce the obligations of Guarantor or create any rights or claims against Lender. 5. FEDERAL LAW: When SBA is the holder, the Note and this Guarantee will be construed and enforced under federal law, including SBA regulations. Lender or SBA may use state or local procedures for fling papers, recording documents, giving notice, foreclosing liens, and other purposes. By using such procedures, SBA does not waive any federal immunity from state or local control, penalty, tax, or liability. As to this Guarantee, Guarantor may not claim or assert any local or state law against SBA to deny any obligation, defeat any claim of SBA, or preempt federal law. 6. RIGHTS, NOTICES, AND DEFENSES THAT GUARANTOR WAIVES To the extent permitted by law, A. Guarantor waives all rights to: 1) Require presentment, protest, or demand upon Borrower; 2) Redeem any Collateral before or after Lender disposes of it; 3) Have any disposition of Collateral advertised; and 4) Require a valuation of Collateral before or after Lender disposes of it, B. Guarantor waives any notice of- t ) Any default under the Note; 2) Presentment, dishonor, protest, or demand; 3) Execution of the Note; 4) Any action or inaction on the Note or Collateral, such as disbursements, payment, nonpayment, acceleration, intent to accelerate, assignment, collection activity, and incurring enforcement expenses; 5) Any change in the financial condition or business operations of Borrower or any guarantor; 6) Any changes in the terms of the Note or other Loan Documents, except increases in the amounts due under the Note; and 7) The time or place of any sale or other disposition of Collateral. C. Guarantor waives defenses based upon any claim that: 1) Lender failed to obtain any guarantee; 2) Lender failed to obtain, perfect, or maintain a security interest in any property offered or taken as Collateral; 3) Lender or others improperly valued or inspected the Collateral; 4) The Collateral changed in value, or was neglected, lost, destroyed, or underinsured; SBA Form 148 (10518) Previous editions obsolete, Page NS Wolters Kluwer Financial Services, St. Cloud, MN (Page 3 'of 5) 5) Lender impaired the Collateral; 6) Lender did not dispose of any of the Collateral; 7) Lender did not conduct a commercially reasonable sale; 8) Lender did not obtain the fair market value of the Collateral; 9) Lender did not make or perfect a claim upon the death or disability of Borrower or any guarantor of the Note; 10) The financial condition of Borrower or any guarantor was overstated or has adversely changed; 11) Lender made errors or omissions in Loan Documents or administration of the Loan; 12) Lender did not seek payment from the Borrower, any other guarantors, or any Collateral before demanding payment from Guarantor. 13) Lender impaired Guarantor's suretyship rights; 14) Lender modified the Note terns, other than to increase. amounts due under the Note. If Lender modifies the Note to increase the amounts due under the Note without Guarantor's consent, Guarantor will not be liable for the increased amounts and related interest and expenses, but remains liable for all other amounts; 15) Borrower has avoided liability on the Note; or 16) Lender has taken an action allowed under the Note, this Guarantee, or other Loan Documents. 7. DUTIES AS TO COLLATERAL: Guarantor will preserve the Collateral pledged by Guarantor to secure this Guarantee. Lender has no duty to preserve or dispose of any Collateral. 8. SUCCESSORS AND ASSIGNS: Under this Guarantee, Guarantor includes heirs and successors, and Lender includes its successors and assigns. 9. GENERAL PROVISIONS: A. ENFORCEMENT EXPENSES. Guarantor promises to pay all expenses Lender incurs to enforce this Guarantee, including, but not limited to, attorney's fees and costs. B. SBA NOT A CO-GUARANTOR. Guarantor's liability will continue even if SBA pays Lender, SBA is not a co-guarantor with Guarantor. Guarantor has no right of contribution from SBA. C, SUBROGATION RIGHTS. Guarantor has no subrogation rights as to the Note or the Collateral until the Note is paid in full. D. JOINT AND SEVERAL LIABILITY, All individuals and entities signing as Guarantor are jointly and severally liable. E. DOCUMENT SIGNING. Guarantor must sign all documents necessary at any time to comply with the Loan Documents and to enable Lender to acquire, perfect, or maintain Lender's liens on Collateral. F. FINANCIAL STATEMENTS. Guarantor must give Lender financial statements as Lender requires. G. LENDER'S RIGHTS CUMULATIVE, NOT WAIVED. Lender may exercise any of its rights separately or together, as many times as it chooses. Lender may delay or forgo enforcing any of its rights without losing or impairing any of them. H, ORAL STATEMENTS NOT BINDING, Guarantor may not use an oral statement to contradict or alter the written terms of the Note or this Guarantee, or to raise a defense to this Guarantee, 1. SEVERABILITY. If any part of this Guarantee is found to be unenforceable, all other parts will remain in effect. J. CONSIDERATION. The consideration for this Guarantee is the Loan or any accommodation by Lender as to the Loan. SBA Form 146 (10/98) Previous editions obsolete. Page 3/5 Wolters Kluwer Financial Services, St. Cloud, MN (Page 4 of 5) 10. STATE-SPECIFIC PROVISIONS: 1, POWER TO CONFESS JUDGMENT. UNDERSIGNED HEREBY EMPOWERS ANY ATTORNEY OF ANY COURT OF RECORD, AT ANY TIME AFTER THE OCCURRENCE OF ANY EVENT OF DEFAULT HEREUNDER, TO APPEAR FOR THE UNDERSIGNED AND, WITH OR WITHOUT COMPLAINT FILED, CONFESS JUDGMENT, OR A SERIES OF JUDGMENTS, AGAINST THE UNDERSIGNED IN FAVOR OF THE LENDER OR ANY HOLDER HEREOF FOR THE ENTIRE PRINCIPAL BALANCE OF THIS GUARANTY, ALL ACCRUED INTEREST AND ALL OTHER AMOUNTS DUE HEREUNDER, TOGETHER WITH COSTS OF SUIT AND AN ATTORNEY'S COMMISSION OF 10% OF SUCH PRINCIPAL AND INTEREST 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 UNDERSIGNED 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. JUDGMENT MAY BE CONFESSED FROM TIME TO TIME UNDER THE AFORESAID POWER TO CONFESS JUDGMENT AND NO SINGI,E 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 LENDER SHALL ELECT UNTIL SUCH TIME AS THE LENDER SHALL HAVE RECEIVED PAYMENT IN FULL OF THE DEBT, INTEREST, COSTS AND FEES. 2. Governing Law, Jurisdiction. This Guaranty will be interpreted and the rights and liabilities of the parties hereto determined In accordance with the laws of the Commonwealth of Pennsylvania, excluding its conflict of laws rules. The Undersigned hereby irrevocably consents to the exclusive jurisdiction of the Courts of Common Pleas of the Commonwealth of Pennsylvania and the United States District Court for the Eastern District of Pennsylvania; provided that nothing contained in this Guaranty will prevent the Lender or any holder hereof from bringing any action, enforcing any award or judgment or exercising any rights against the Undersigned, against any security or against any property of the Undersigned within any other county, state or other foreign or domestic jurisdiction. The Undersigned agrees that the venue provided above is the most convenient forum for both the Lender and the Undersigned and the Undersigned waives any objection to venue and any objection based on a more convenient forum in any action instituted under this Guaranty. The Undersigned agrees that service of process in any such proceeding may be duly effected upon the Undersigned by mailing a copy thereof by registered mail, postage prepaid, to the Undersigned. 3. WAIVER OF JURY TRIAL. THE UNDERSIGNED IRREVOCABLY WAIVES ANY AND ALL RIGHTS THE UNDERSIGNED MAY HAVE TO A TRIAL BY JURY IN ANY ACTION, PROCEEDING OR CLAIM OF ANY NATURE RELATING TO THIS GUARANTY, ANY DOCUMENTS EXECUTED IN CONNECTION WITH THIS GUARANTY OR ANY TRANSACTION CONTEMPLATED IN ANY OF SUCH DOCUMENTS. THE UNDERSIGNED ACKNOWLEDGES THAT THE FOREGOING WAIVER IS KNOWING AND VOLUNTARY. SBA Forth 148 (10198) Previous editions obsolete. Page 415 Wolters Kluwer Financial Services., St. Cloud, MN (Page 5 of 5) 11. GUARANTOR ACKNOWLEDGMENT OF TERMS, Guarantor acknowledges that Guarantor has read and understands the significance of all terms of the Note and this Guarantee, including all waivers. 22. GUARANTOR NAME(S) AND SIGNATURE(S): By signing below, each individual or entity becomes obligated as Guarantor under this Guarantee. ael J. Caracci Patricia M. Caracd . d7 S-i4- e7 SBA Form 148 (10198) Previous edWons obsolete. Page 515 Wolters Kluwer Financial Services, St. Cloud, MN EXHIBIT B (Page 1 of 1) Disclosure for Confession of Judgment (Guarantor) Undersigned: Michael J. Caracci Patricia M. Caracci 7 North Hilt Drive Mount Holly, NJ 08060 Lender: PNC BANK, NATIONAL ASSOCIATION 8800 TINICUM BOULEVARD PHILADELPMA, PA 19153 PNCBANK The undersigned has executed, and/or is executing, on or about the date hereof, a US Small Business Administration Guaranty and Commercial Guaranty, in respect of the obligations owed to Lender by D & C TANKING CORP DBA HOLLYWOOD TANS under which the undersigned is obligated to repay monies to Lender. A. THE UNDERSIGNED ACKNOWLEDGES AND AGREES THAT THE ABOVE DOCUMENT CONTAINS PROVISIONS UNDER WHICH LENDER MAY ENTER JUDGMENT BY CONFESSION AGAINST THE UNDERSIGNED. BEING FULLY AWARE OF ITS RIGHTS TO PRIOR NOTICE AND A HEARING ON THE VALIDITY OF ANY JUDGMENT OR OTHER CLAIMS THAT MAY BE ASSERTED AGAINST IT BY LENDER THEREUNDER BEFORE JUDGMENT LS 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 DOCUMENT CONTAINS 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 BE 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 document to the attention of the undersigned, and/or that the undersigned was represented by legal counsel in connection with the above document. D. The undersigned hereby certifies: that its annual income exceeds $10,000; that all references to Athe undersigned= above refer to all persons and entities signing below; and that the undersigned received a copy hereof at the time of signing. Dated: -'/0-6 Michael J. Ca cci r Patricia M. Caracci 7&° C:IDOCUME-ITe232441LOCALS-1?Templnotes97E53A\PA conf.guarantor 2.doc ..Form 4C - PA Rev. 3199 EXHIBIT C i US Small Budems AdminiatnUou U.S. Small Business Administration IMP NOTE SBA Loan # PLP 24097950-10 SBA Loan Name Hollywood Tans Date s /o-X00-7 Loan Amount 327,200.00 Interest Rate Floating at WSJ Prime plus 1.75% resulting in an initial rate of 10.00% Borrower D & C Tanning Corp dba Hollywood Tans Operating Company Lender PNC BANK, National Association 1. PROMISE TO PAY: In return for the Loan, Borrower promises to pay to the order of Lender the amount of THREE HUNDRED TWENTY SEVEN THOUSAND TWO HUNDRED -00/100 Dollars, interest on the unpaid principal balance, and all other amounts required by this Note. 2. DEFINITIONS: "Collateral" means any property taken as security for payment of this Note or any guarantee of this Note. "Guarantor" means each person or entity that signs a guarantee of payment of this Note. "Loan" means the loan evidenced by this Note. "Loan Documents" means the documents related to this loan signed by Borrower, any Guarantor, or anyone who pledges collateral. "SBA" means the Small Business Administration, an Agency of the United States of America. SBA Form 147 (06/03/02) Version 4.1 Page 1/6 Wolters Kluwer Financial Services, St. Cloud, MN 3. PAYMENT TERMS: Borrower must make all payments at the place Lender designates. The payment terms for this Note are: Maturity: This Note will mature in 10 years from date of Note. The interest rate on this Note will fluctuate. The initial interest rate is 10.00% per year. This initial rate is the prime rate on the date SBA received the loan application, plus 1.75%. The initial interest rate must remain in-effect until the first change period begins. Borrower must pay a total of 6 payments of interest payments 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 first calendar day in the months they are due. Borrower must pay principal and interest payments of $4,457.28 every month, beginning seven month from the month this Note is dated; payments must be made on the first 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 the principal. The interest rate will be adjusted quarterly (the "change period"). The "Prime Rate" is 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 adjusted interest rate will be 1.75% above the Prime Rate. Lender will 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. Loan Prepayment: Notwithstanding any provision in this Note to the contrary: Borrower may prepay this Note. Borrower may prepay 20% or less of the unpaid principal balance at any time without notice. If Borrower prepays more than 20% and the Loan has been sold on the secondary market, Borrower must: (a.) Give Lender written notice; (b.) Pay all accrued interest; and (c.). If the prepayment is received less than 21 days from the date Lender receives the notice, pay an amount equal to 21 days' interest from the date Lender receives the notice, less any interest accrued during the 21 days and paid under subparagraph b., above. ?c%69 PW04slon 4.1 Page 216 Wolters Kluwer Financial Services, St. Cloud, MN SBA 147: Note Page 2 Continuation Continuation of "..." If Borrower does not prepay within 30 days from the date Lender receives the notice, Borrower must give Lender a new notice. All remaining principal and accrued interest is due and payable 10 years from date of Note. Late Charge: if a payment on this Note is more than 10 days late, Lender may charge Borrower a late fee of up to 5.00% of the unpaid portion of the regularly scheduled payment. Page 1 Bankers Systems, Inc., St. Cloud, MN 4. DEFAULT: Borrower is in default under this Note if Borrower does not make a payment when due under this Note, or if Borrower or Operating Company: A. Fails to do anything 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 Collateral or its proceeds; D. Does not disclose, or anyone acting on their behalf does not disclose, any material fact to Lender or SBA; E. Makes, or anyone acting on their behalf makes, a materially false or misleading representation to Lender or SBA; F. Defaults on any loan or agreement with another creditor, if Lender believes the default may materially affect Borrower's ability to pay this Note; 0. Fails to pay any taxes when due; H. Becomes the subject of a proceeding under any bankruptcy or insolvency law; I. Has a receiver or liquidator appointed for any part of their business or property; J, Makes an assignment for the benefit of creditors; K. Has any adverse change in financial condition or business operation that Lender believes may materially affect Borrower's ability to pay this Note; L. Reorganizes, merges, consolidates, or otherwise changes ownership or business structure without Lender's prior written consent or M. Becomes the subject of a civil or criminal action that Lender believes may materially affect Borrower's ability to . pay this Note. 5. LENDER'S RIGHTS IF THERE IS A DEFAULT: Without notice or demand and without giving up any of its rights, Lender may: A. Require immediate payment of all amounts owing under this Note; B. Collect all amounts owing from any Borrower or Guarantor, 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 private sale, with or without advertisement. 6. 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 any 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. If Lender incurs such expenses, it may demand immediate repayment from Borrower or add the expenses to the principal balance; C. Release anyone obligated 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. SBA Form 147 (06103/02) Version 4.1 Page 316 Wolters Kluwer Financial Services, St. Cloud, MN 7. WHEN FEDERAL LAW APPLIES: 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 procedures for filing papers, recording documents, giving notice, foreclosing liens, and other purposes. By using such procedures, SBA does 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 obligation, defeat any claim of SBA, or preempt federal law. 8. SUCCESSORS AND ASSIGNS: Under this Note, Borrower and Operating Company include the successors of each, and Lender includes its successors and assigns. 9. GENERAL PROVISIONS: A. All individuals and entities signing this Note are jointly and severally liable. B. Borrower waives all suretyship defenses. C. Borrower must sign all documents necessary at any time to comply with the Loan Documents and to enable Lender to acquire, perfect, or maintain Lender's liens on Collateral. D. Lender may exercise any of its rights separately or together, as many times and in any order it chooses. Lender may delay or forgo enforcing any of its rights without giving up any of them. E. Borrower may not use an oral statement of Lender or SBA to contradict or alter the written teens of this Note. F. If any part of this Note is unenforceable, all other parts remain in effect. G. To the extent allowed by law, Borrower waives all demands and notices in connection with this Note, including presentment, demand, protest, and notice of dishonor. Borrower also waives any defenses based upon any claim that Lender did not obtain any guarantee; did not obtain, perfect, or maintain a lien upon Collateral; impaired Collateral; or did not obtain the fair market value of Collateral at a sale. SBA Form 147 (06/03/02) Version 4.1 Page 4/6 Wolters Kluwer Financial Services, St. Cloud, MN 10. STATE-SPECIFIC PROVISIONS: 1. POWER TO CONFESS JUDGMENT. UNDERSIGNED HEREBY EMPOWERS ANY ATTORNEY OF ANY COURT OF RECORD, AT ANY TIME AFTER THE OCCURRENCE OF ANY EVENT OF DEFAULT HEREUNDER, TO APPEAR FOR THE UNDERSIGNED AND, WITH OR WITHOUT COMPLAINT FILED, CONFESS JUDGMENT, OR A SERIES OF JUDGMENTS, AGAINST THE UNDERSIGNED IN FAVOR OF THE 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 ATTORNEYS COMMISSION OF 10% OF SUCH PRINCIPAL AND INTEREST 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 UNDERSIGNED HEREBY FOREVER WAIVES AND RELEASES ALL ERRORS IN SAID PROCEEDINGS AND ALL RIGHTS OF APPEAL AND ALL RELIEF FROM ANY AND ALL APPRAlSEMENT, STAY OR EXEMPTION LAWS OF ANY STATE NOW IN FORCE OR HEREAFTER ENACTED. JUDGMENT MAY BE CONFESSED FROM TIME TO TIME UNDER THE AFORESAID POWER TO CONFESS JUDGMENT AND 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 LENDER SHALL ELECT UNTIL SUCH TIME AS THE LENDER SHALL HAVE RECEIVED PAYMENT IN FULL OF THE DEBT, INTEREST, COSTS AND FEES. 2. Governing Law; Jurisdiction. This Note will be interpreted and the rights and liabilities of the parties hereto determined in accordance with the laws of the Commonwealth of Pennsylvania, excluding its conflict of laws rules. The Undersigned hereby irrevocably consents to the exclusive jurisdiction of the Courts of Common Pleas of the Commonwealth of Pennsylvania and the United States District Court for the Eastern District of Pennsylvania; provided that nothing contained in this Note will prevent the Lender or any holder hereof from bringing any action, enforcing any award orjudgment or exercising any rights against the Undersigned, against any security or against any property of the Undersigned within any other county, state or other foreign or domestic jurisdiction. The Undersigned agrees that the venue provided above is the most convenient forum for both the Lender and the Undersigned and the Undersigned waives any objection to venue and any objection based on a more convenient forum in any action instituted under this Note. The Undersigned agrees that service of process in any such proceeding may be duly effected upon the Undersigned by mailing a copy thereof by registered mail, postage prepaid, to the Undersigned. 3. WAIVER OF JURY TRIAL. THE UNDERSIGNED IRREVOCABLY WAIVES ANY AND ALL RIGHTS THE UNDERSIGNED 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 UNDERSIGNED ACKNOWLEDGES THAT THE FOREGOING WAIVER IS KNOWING AND VOLUNTARY. SEA Form 147 (06103/02) Version 4.1 Page 5/6 Wolters Kluwer Financial Services, St Cloud, MN 11. BORROWER'S NAIviE(S) AND SIGNATURE(S): By signing below, each individual or entity becomes obligated under this Note as Borrower. D & C Tanning Corp dba Hollywood Tans 5 /1 )-07 /a-e7 Vice President SBA Form 147 (06/03/02) Version 4.1 X0-07 y'-/C?-o7 Page 6/6 Wolters Kluwer Financial Services, St. Cloud, MN Patricia M. Caracci, Treasurer EXHIBIT D PNC BANK, NATIONAL ASSOCIATION 4242 Carlisle Pike Camp Hill, PA 17011 E-mail: stephen.landis@pnc.com January 23, 2009 D & C Tanning Corporation d/b/a Hollywood Tans c/o Michael J. & Patricia M. Caracci 7 North Hill Drive Westampton, NJ 08060-5725 D & C Tanning Corporation d/b/a Hollywood Tans c/o Gerald H. & Kimberly J. Dunleavy 8 Karens Court Swedesboro, NJ 08085-3087 In re: Obligor/Obligation Nos.: 32385325-602981847 Dear Mr. & Mrs. Caracci: Dear Mr. & Mrs. Dunleavy: Dear D & C Tanning Corporation d/b/a Hollywood Tans: Stephen Landis Assistant Vice President (717) 735-5711 Tel (717) 735-4864 Fax As you know, you are obligated to PNC Bank, National Association ("PNC") for the above-referenced loan account (the "Loan" ), as evidenced by a certain Note, Agreements and other related loan documents (the "Loan Documents"). As you also know, you are in default under the Loan and Loan Documents for your failure to: pay the October 1, 2008 loan payment and each subsequent loan payment due thereafter and ceasing business operations. As a result of the above Events of Default, all liabilities and obligations under the Loan and Loan Documents have been accelerated and all liabilities and obligations under the Loan and Loan Documents are immediately due and payable to PNC. As of this date the amount due under the Loan and Loan Documents are as follows. Oblieor/Obligation Nos.: 32385325-602981847 Principal $297,442.16 Interest to 1/23/09 7,607.19 Late charges 891.44 Total $305,940.79 plus prepayment fee and satisfaction fees Please be advised that unless payment in full is immediately. delivered to PNC in the form of immediately available funds, PNC shall take all action it deems appropriate to collect the above sums due and owing, preserve, protect and enforce its rights under the Loan and Loan Documents. Very truly yours, PNC Bank, National Association Stephen Landis Assistant Vice President Certified Mail Nos.: 7008 0150 0002 6382 5421 7008 0150 0002 6382 5407 cc: Regular Mail ICBANK r of The PNC Financial Services Group rlisle Pike ill Pennsylvania 17011 D & C Tanning Corporation d/b/a Hollywood Tans c/o Gerald H. & Kimberly J. Dunleavy 8 Karens Court Swedesboro, NJ 08085-3087 ¦ Complete Items 1, 2, and 3: Also complete I item 4 if Restricted Delivery is desired. 1 a Print your name and address on the reverse I so that we can return the card to you. 1 ¦ Attach this card to the back of the maiipiece, 1 or on the front if space permits. A. Signature I X El Agent I ? Addressee B. Received by (Printed Name) C. Date of Delivery . I D. Is delivery address different from item 11 E]Yes I If YES, enter delivery address below: ? No I I i I I 1. Article Addressed to: i Swtd.tit pverN?j d?64z_- 30$'1 3. Service Type Wertified Mail ? Express Mail I 13 Registered ? Return Receipt for Merchandise i ? Insured Mail ? C.O.D. 4. Restricted Delivery? para Fee) ? Yes 1 1 2. Article Number I (Transfer from service label) -7 a or 0 tSb p b 01_ G 6 `l PS Form 3811, February 2004 Domestic Return Receipt 102e95-02-M-1540 '• -- e C3 ® 0 o rr. o Coverage provided) Lrl ® Ln Ln . , . ro co M - • - ?? - 0 ® .A -0 Postage $ C3 rU r u r1.1 Certified Fee Z. Z O p M O p O O p Retum Receipt Fee (Endorsement Required) Postmark Here ' O O Restricted Delivery Fee (Endorsement Required) 7 ? u L171 ?-i r_q • ??, D C3 O Total Postage & Fees $ 3Z cO a ' • ?? rO co CO ED Sent To G",uId 14. t K;•.i?.l 7' Qv„ le. Cl ??. M O . Street. A-- ------------ - - - ---------- - - - - - - - -------------y - orPO Box No. q v G C& v , C/ty, State. ZfP+4 I ----° ----- -- ------ w4e l6re My OP O W_ of -7 r a a d. a U m E 7 m U N m E 0 w Q C?. a e r c m .o •. m 7 Z m v 0 b N ca 2 N U- 00 cr) U_ C COURT OF COMMON PLEAS OF CUMBERLAND COUNTY,13ENNSYLVANIA CIVIL ACTION PNC BANK, NATIONAL ASSOCIATION, : DOCKET NO. CR - --Xfk Plaintiff V. MICHAEL J. CARACCI and PATRICIA M. CARACCI, : CONFESSION OF' JUDGMENT Defendants : 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 may be served at the address set forth below. Geoffrey S. Shuff, Esquire McNees Wallace & Nurick LLC 100 Pine Street, PO Box 1166 Harrisburg, PA 17108-1166 (717) 237-5439 Respectfully submitted, McNees Wallace & Nurick LLC Date: July 8, 2009 By: y of , Esquire Supreme Court ID #24848 100 Pine Street, PO Box 1166 Harrisburg, PA 17108-1166 (717) 237-5439 Attorneys for Plaintiff,13NC Bank, N. A. COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION PNC BANK, NATIONAL ASSOCIATION, : DOCKET NO. Plaintiff V. MICHAEL J. CARACCI and PATRICIA M. CARACCI, CONFESSION OF JUDGMENT Defendants :PREVIOUSLY ASSIGNED TO: N/A NOTICE UNDER RULE 2958.1 OF JUDGMENT AND EXECUTION THEREON NOTICE OF DEFENDANTS' RIGHTS TO: Michael J. Caracci and Patricia M. Caracci, Defendants A judgment in the amount of $345,333.55, 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 from 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. Lawyer Referral Service Cumberland County Bar Association 32 South Bedford Street Carlisle, PA 17013 (717) 249-3166 Respectfully submitted, McNees Wallace & Nurick LLC Date: July 8, 2009 By: G ?frK of Esquire S #24848 100 Pine Stree , PO Box 1166 Harrisburg, PA 17108-1166 (717) 237-5439 Attorneys for Plaintiff, PNC Bank, N. A. COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION PNC BANK, NATIONAL ASSOCIATION, : DOCKET NO. 0 9- Civil Term Plaintiff V. MICHAEL J. CARACCI and PATRICIA M. CARACCI, : CONFESSION OF JUDGMENT Defendants :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, PA 17011; and that the last known address of the Defendants, Michael J. Caracci and Patricia M. Caracci, is 7 North Hill Drive, Mount Holly, NJ 08060. Respectfully submitted, McNees Wallace & Nurick LLC Date: July 8, 2009 gy. o e ff, 'Es Su me Court ID #24848 100 Pine Street, PO Box 1166 Harrisburg, PA 17108-1166 (717) 237-5439 Attorneys for Plaintiff, PNC Bank, N. A. COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION PNC BANK, NATIONAL ASSOCIATION, DOCKET NO. Plaintiff V. : CONFESSION OF' JUDGMENT MICHAEL J. CARACCI and PATRICIA M. CARACCI, Defendants :PREVIOUSLY ASSIGNED TO: N/A AFFIDAVIT OF NON-MILITARY SERVICE TO THE PROTHONOTARY: I do certify, to the best of my knowledge, that the Defendants in the above-captioned action, Michael J. Caracci and Patricia M. Caracci, are not presently on active or non-active military status. Respectfully submitted, McNees Wallace & Nurick LLC Date: July 8, 2009 By: Peottr S' Shu , Esquire lgttgr-eme Co ID #24848 100 Pine Str et, PO Box 1166 Harrisburg, PA 17108-1166 (717) 237-5439 Attorneys for Plaintiff, PNC Bank, N. A. OF T 1Y tUL, Jim ? { J 1. , 401-7.5o Pf--? i%-M m* as,18(o5 COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, :PENNSYLVANIA CIVIL ACTION PNC BANK, NATIONAL ASSOCIATION, : DOCKET NO. 09 - L4 to 3S l., tV; 1-terit t Plaintiff V. MICHAEL J. CARACCI and PATRICIA M. CARACCI, : CONFESSION OF JUDGMENT Defendants :PREVIOUSLY ASSIGNED TO: N/A To: Michael J. Caracci and Patricia M. Caracci, Defendants You are hereby notified that on July gyp' 2009, judgment by confession was entered against you in the sum of $345,333.55, in the above-captioned case. DATE: - J&? 10 - 1 1 ?? -,.& -A P thonotary "_?/ 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. Lawyer Referral Service Cumberland County Bar Association 32 South Bedford Street Carlisle, PA 17013 (717) 249-3166 I hereby certify that the following is the address of the Defendants stated in the certificate of residence: Michael J. Caracci and Patricia M. Caracci 7 North Hill Drive Mount Holly, NJ 08060 r A, Michael J. Caracci and Patricia M. Caracci, Demandados: Por este medio usted sea avisado que en el dia de Julio de 2009, un juicio por admision flue registrado contra usted por la cantidad de $345,333.55, referente al caso mencionado arriba. Fecha: el dia de Julio de 2009. Protonotario LLEVE ESTA DEMANDA A UN ABOGADO 1NMEDIATAMENTE. SI USTED NO TIENE UN ABOGADO O SI NO TIENE EL DINERO PARA PAGAR TAL SERVICIO, VAYA PERSONALMENTE O LLAME POR TELEFONO A LA OFICINA CUYO TELEFONO Y DIRECCION SE ENCUENTRAN ESCRITOS ABAJO PARA AVERIGUAR DONDE USTED PODRA CONSEGUIR ASISTENCIA LEGAL. Lawyer Referral Service Cumberland County Bar Association 32 South Bedford Street Carlisle, PA 17013 (717) 249-3166 Por este medio certifico que la siguiente es la direccion de los demandados, dicho en el certificado de residencia: Michael J. Caracci and Patricia M. Caracci 7 North Hill Drive Mount Holly, NJ 08060 Geoffre Sh Wbado Demandante COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA PNC BANK, NATIONAL ASSOCIATION, CIVIL ACTION DOCKET NO. 09-4635 Civil Term Plaintiff v. CONFESSION OF JUDGMENT MICHAEL J. CARACCI and PATRICIA M. CARACCI, Defendants 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. Michael J. Caracci and Patricia M. Caracci 7 North Hill Drive Mount Holly, NJ 08060 Respectfully submitted, McNees Wallace & Nurick LLC Date: July 20, 2009 By; _G S. uff, Esquire eme ourt ID #24848 100 Pine Street, PO Box 1166 Harrisburg, PA 17108-1166 (717) 237-5439 Attorneys for Plaintiff 7160 3901 9848 1688 9664 _~' ~ ~. i ~ TO: Michael J. Caracci and Patricia M. Caracci 7 North Hill Drive Mount Holly, NJ 08060 HAR~q~s ~G "G ~~ SENDER: G f& S. Sh~u~ y 6' -- REFERENCE: P r NAS' ~ ~~ ' PS Form 3800 Janua 2005 i RETURN Postage ~ ~~ ~ SERVICE Certified Fee $O Return Receipt Fee ~ Restricted Delivery ~ Total Postage & Fees US Postal Service POSTMARK OR DATE Receipt for Certified Maii ~ No Insurance Coverage Provided Do Not Use for International May 2. Article Number 7160 3901 9848 1688 9664 Michael J; Caracci and Patricia M. Carucci 7 North Hill llrive Mount Holly, NJ 08060 gLEQ-0:-riC~' C}F ?H~ P~tt~~~?~?+~?QTARY Z~Q9 JtfL 2 f Ali 11 ~ 31 CUr~~u:~~,~~.;3u ~~:~~i~~Y ~cC~r~~Y~V~`~J~