HomeMy WebLinkAbout09-7481I 1
IN THE COURT OF COMMON PLEAS
OF CUMBERLAND COUNTY, PENNSYLVANIA
SOVEREIGN BANK CIVIL ACTION
Plaintiff
VS. No. ? y ?ccu-t
GATOR DEVELOPMENT, LLC,
401 MARKET STREET PARTNERS, LLC,:
PETER J. RUSSO, an adult individual, and
R. CHRISTOPHER ZAMPOGNA,
an adult individual,
Defendants Confession of Judgment
CONFESSION OF JUDGMENT
Pursuant to the authority contained in the Warrants of Attorney, copies of which
are attached hereto, I appear for the above Defendants Gator Development, LLC, 401
Market Street Partners, LLC, Peter J. Russo, an adult individual, and R. Christopher
Zampogna, an adult individual, and confess judgment in favor of the Plaintiff, Sovereign
Bank, and against the Defendants Gator Development, LLC, 401 Market Street Partners,
LLC, Peter J. Russo, an adult individual, and R. Christopher Zampogna, an adult
individual, in the amount of $167,536.43 plus per diem interest of $30.20833 from
October 1, 2009, until paid in full, including post judgment per contract, plus costs of suit
as follows, itemized below:
Unpaid Principal Amount $ 150,000.00
Interest to September 30, 2009 $ 2,229.17
Late Fees $ 84.34
Contractual Attorney Fees 10.0% $ 15,222.92
TOTAL $ 167,536.43
Per Diem Interest from October 1, 2009
until paid in full including post judgment
per contract, plus costs of suit
$
3
Judgment entered as above.
Dated: September 30, 2009
By:
orrest T. Passerin, Esquire
As Attorney for Defendants
20-536-ARO
2 Aldwyn Lane
Villanova PA 19085-1420
Phone: 610-526-6358
I.D. No. 85897
I
IN THE COURT OF COMMON PLEAS
OF CUMBERLAND COUNTY, PENNSYLVANIA
vs. No.
" -7 ?K( 6 "f, -1erM
Defendants Confession of Judgment
GATOR DEVELOPMENT, LLC,
401 MARKET STREET PARTNERS, LLC,:
PETER J. RUSSO, an adult individual, and
R. CHRISTOPHER ZAMPOGNA,
adult individual
COMPLAINT FOR CONFESSION OF JUDGMENT
Plaintiff, Sovereign Bank, confesses judgment against Defendants Gator
Development, LLC, 401 Market Street Partners, LLC, Peter J. Russo, an adult individual,
and R. Christopher Zampogna, an adult individual, in the amount of $167,536.43 plus per
diem interest of $30.20833 from October 1, 2009, until paid in full, including post-
judgment per contract, plus costs of suit as provided for in those certain note and
guaranties, and in support thereof avers as follows:
Parties
1. The Plaintiff is Sovereign Bank, a corporation organized and existing under
SOVEREIGN BANK CIVIL ACTION
Plaintiff
the laws of the United States of America, and it is registered to do business in
Pennsylvania with offices for the purpose of doing business at Two Aldwyn Center, East
Lancaster Avenue and Aldwyn Lane, Villanova PA 19085-1420.
2. Defendant Gator Development, LLC, is a Pennsylvania limited liability
company whose address is 1520 Market Street, Camp Hill, Pennsylvania 17011
("Borrower").
N
3. Defendant 401 Market Street Partners, LLC, is a Pennsylvania limited liability
company whose principal address is 1520 Market Street, Camp Hill, Pennsylvania 17011
("401 Market").
4. Defendant Peter J. Russo is an adult individual whose principal address is 4
Shoff Court, Mechanicsburg, Pennsylvania 17055 ("Russo").
5. Defendant R. Christopher Zampogna is an adult individual whose principal
address is 5 Saratoga Place, Camp Hill, Pennsylvania 17011 ("Zamaoana").
Count I
SOVEREIGN BANK v.
GATOR DEVELOPMENT, LLC
6. On or about April 13, 2006, Sovereign Bank made available a loan to
Borrower in the original principal amount of $40,000.00 (the "Loan") as evidenced by
that certain Promissory Note dated April 13, 2006, in the original principal amount of
$40,000.00 executed by Borrower in favor of Sovereign Bank and an accompanying
Disclosure for Confession of Judgment (collectively, the "Original Note").
7. The Original Note was subsequently amended, modified and/or supplement
pursuant to the following modification agreements (collectively, the "Note Modification
Agreements"): (A) that certain Note Modification Agreement dated September 29, 2006,
among Defendants, James R. Ridd, an individual (a guarantor and surety subsequently
released from his obligations as a guarantor and surety and hereafter referred to as
"Ridd"), Kevin M. Shook, an individual (a guarantor and surety subsequently released
from his obligations as a guarantor and surety and hereafter referred to as "Shook"), Rory
G. Ritrievi, an individual (a guarantor and surety subsequently released from his
obligations as a guarantor and surety and hereafter referred to as "Ritrievi") and
I a
Sovereign Bank; (B) that certain Second Promissory Note Modification Agreement dated
January 15, 2007, among Defendants, Ridd, Shook, Ritrievi and Sovereign Bank; and (C)
that certain Note Modification Agreement dated February 12, 2009, among Defendants
and Sovereign Bank.
8. Collectively, the Note Modification Agreements, among other things,
increased the principal amount of the Original Note from $40,000.00 to $150,000.00.
The Original Note and the Note Modification Agreements are collectively hereafter
referred to as the "Note." A true and correct of copy of the Note is attached hereto,
incorporated herein and marked as Exhibit "A".
9. As collateral for obligations, debts and liabilities of Borrower to Sovereign
Bank, including, without limitation, the Note, Borrower executed and delivered to
Sovereign Bank that certain Commercial Security Agreement dated June 28, 2006,
whereby Borrower granted a security interest in certain assets of Borrower, including,
without limitation, Pennsylvania Liquor License No. R-15960.
10. Sovereign Bank is the holder of the Note.
11. The Note authorizes confessions of judgment.
12. The Note has not been assigned.
13. The judgment to be entered does not involve a loan defined as a "consumer
credit transaction" in accordance with Annex A. to Title 231, Chapter 2950, Rule
2951(a)(2).
14. Judgment has not been entered on the attached Note in any jurisdiction.
15. The Note is less than twenty (20) years old and no application for a court
order granting leave to enter judgment after notice is required.
I I
16. The Note provides for confession of judgment against Borrower after default
under the Note.
17. Defendant Borrower is in default under the terms of the Note for, among other
things, failure of Defendant Borrower to perform its payment obligations to Sovereign
Bank under that certain Promissory Note dated June 28, 2006, executed by Defendant
Borrower in the original principal amount of $200,000.00, and failure to pay in full all
amounts due under to the Note upon demand.
18. Sovereign Bank has exercised its right to confess judgment pursuant to the
terms of the Note for an amount which Defendant Borrower may become liable.
19. On or about August 5, 2009, Sovereign Bank delivered to Defendant
Borrower, via first class mail and certified mail, return receipt requested, a written notice
of default and demand that all outstanding principal amounts, plus accrued interest and
late fees due under the Note be paid in full, and Defendant Borrower failed to do so. A
true and correct of copy of the Notice of Default is attached hereto, incorporated herein
and marked as Exhibit "B".
20. As a consequence of Defendant Borrower's failure to cure this default,
Defendant Borrower is liable to Sovereign Bank in the total sum of $167,536.43 plus per
diem interest of $30.20833 from October 1, 2009, until paid in full, including post-
judgment per contract, plus costs of suit itemized as follows:
Unpaid Principal Amount $ 150,000.00
Interest to September 30, 2009 $ 2,229.17
Late Fees $ 84.34
Contractual Attorney Fees 10.0% $ 15,222.92
TOTAL $ 167,536.43
Per Diem Interest from October 1, 2009
until paid in full including post judgment
per contract, plus costs of suit
$
30.20833
I I
WHEREFORE, Plaintiff, Sovereign Bank, demands judgment against the
Defendant Borrower in the total sum of $167,536.43 plus per diem interest of 30.20833
from October 1, 2009, until paid in full, including post judgment per contract, plus costs
of suit as authorized by the Warrant appearing in the Note.
Count II
SOVEREIGN BANK
v. 401 MARKET STREET PARTNERS, LLC
21. Sovereign Bank incorporates the above averments as if more fully set forth
herein.
22. In connection with that certain Note Modification Agreement dated
September 29, 2006, among Defendants, Ridd, Shook, Ritrievi and Sovereign Bank, 401
Market executed that certain Commercial Guaranty in favor of Sovereign Bank whereby
401 Market is guaranty and surety for all debts, liabilities and obligations of Borrower to
Sovereign Bank, including, without limitation, all debts, liabilities and obligations of
Borrower under the Note, and an accompanying Disclosure for Confession of Judgment
(collectively, the "401 Market Guaranty"). A true and correct of copy of the 401
Market Guaranty is attached hereto, incorporated herein and marked as Exhibit "C".
23. Sovereign Bank is the holder of the 401 Market Guaranty.
24. The 401 Market Guaranty authorizes confessions of judgment.
25. The 401 Market Guaranty has not been assigned.
26. The judgment to be entered does not involve a loan defined as a "consumer
credit transaction" in accordance with Annex A. to Title 231, Chapter 2950, Rule
2951(a)(2).
I
27. Judgment has not been entered on the attached 401 Market Guaranty in any
jurisdiction.
28. The 401 Market Guaranty is less than twenty (20) years old and no application
for a court order granting leave to enter judgment after notice is required.
29. The attached 401 Market Guaranty imposes the liability against Defendant
401 Market, and, as such, Defendant 401 Market is primarily liable with Defendant
Borrower for the principal and all sums due and owing under the Note upon default.
30. The 401 Market Guaranty provides for confession of judgment against
Defendant 401 Market after default under the 401 Market Guaranty.
31. Defendant 401 Market is in default under the terms of the 401 Market
Guaranty.
32. Sovereign Bank has exercised its right to confess judgment pursuant to the
terms of the 401 Market Guaranty for an amount which Defendant 401 Market may
become liable.
33. On or about August 5, 2009, Sovereign Bank delivered to Defendant 401
Market, via first class mail and certified mail, return receipt requested, a written notice of
default and demand for payment in full of all outstanding principal amounts, plus accrued
interest and late fees due under the Note and, Defendant 401 Market failed to do so. A
true and correct of copy of the Notice of Default is attached hereto, incorporated herein
and marked as Exhibit "B".
As a consequence of Defendant 401 Market's failure to cure this default,
Defendant 401 Market is liable to Sovereign Bank in the total sum of $167,536.43 plus
a 10
per diem interest of $30.20833 from October 1, 2009, until paid in full, including post-
judgment per contract, plus costs of suit itemized as follows:
Unpaid Principal Amount $ 150,000.00
Interest to September 30, 2009 $ 2,229.17
Late Fees $ 84.34
Contractual Attorney Fees (10.0% $ 15,222.92
TOTAL $ 167,536.43
Per Diem Interest from October 1, 2009
until paid in full including post judgment
per contract, plus costs of suit
$
30.20833
WHEREFORE, Plaintiff, Sovereign Bank, demands judgment against Defendant
401 Market in the total sum of $167,536.43 plus per diem interest of $30.20833 from
October 1, 2009, until paid in full, including post judgment per contract, plus costs of suit
as authorized by the Warrant appearing in the 401 Market Guaranty.
Count III
SOVEREIGN BANK
v. PETER J. RUSSO
34. Sovereign Bank incorporates the above averments as if more fully set forth
herein.
35. On or about April 13, 2006, Russo executed that certain Commercial
Guaranty in favor of Sovereign Bank whereby Russo is guaranty and surety for all debts,
liabilities and obligations of Borrower to Sovereign Bank, including, without limitation,
all debts, liabilities and obligations of Borrower under the Note, and an accompanying
Disclosure for Confession of Judgment (collectively, the "Russo Guaranty"). A true
and correct of copy of the Russo Guaranty is attached hereto, incorporated herein and
marked as Exhibit "D".
36. Sovereign Bank is the holder of the Russo Guaranty.
s 7
37. The Russo Guaranty authorizes confessions of judgment.
38. The Russo Guaranty has not been assigned.
39. The judgment to be entered does not involve a loan defined as a "consumer
credit transaction" in accordance with Annex A. to Title 231, Chapter 2950, Rule
2951(a)(2).
40. Judgment has not been entered on the attached Russo Guaranty in any
jurisdiction.
41. The Russo Guaranty is less thanF.iwenty (20) years old and no application for a
court order granting leave to enter judgment after notice is required.
42. The attached Russo Guaranty imposes the liability against Defendant Russo,
and, as such, Defendant Russo is primarily liable with Defendant Borrower for the
principal and all sums due and owing under the Note upon default.
43. The Russo Guaranty provide for confessions of judgment against Defendant
Russo after default under the Russo Guaranty.
44. Defendant Russo is in default under the terms of the Russo Guaranty.
45. Sovereign Bank has exercised its right to confess judgment pursuant to the
terms of the Russo Guaranty for an amount which Defendant Russo may become liable.
46. On or about August 5, 2009, Sovereign Bank delivered to Defendant Russo,
via first class mail and certified mail, return receipt requested, a written notice of default
and demand for full payment of all outstanding principal amounts, plus accrued interest
and late fees due under the Note, and Defendant Russo failed to do so. A true and correct
of copy of the Notice of Default is attached hereto, incorporated herein and marked as
Exhibit "B".
i
As a consequence of Defendant Russo's failure to cure this default, Defendant
Russo is liable to Sovereign Bank in the total sum of $167,536.43 plus per diem interest
of $30.20833 from October 1, 2009, until paid in full, including post judgment per
contract, plus costs of suit itemized as follows:
Unpaid Principal Amount $ 150,000.00
Interest to September 30, 2009 $ 2,229.17
Late Fees $ 84.34
Contractual Attorney Fees (10.0% $ 15 222.92
TOTAL $ 167,536.43
Per Diem Interest from October 1, 2009
until paid in full iut luding post judgment
per contract, plus costs of suit
$
30.20833
WHEREFORE, Plaintiff, Sovereign Bank, demands judgment against Defendant
Russo in the total sum of $167,536.43 plus per diem interest of $30.20833 from October
1, 2009, until paid in full, including post judgment per contract, plus costs of suit as
authorized by the Warrant appearing in the Russo Guaranty.
Count IV
SOVEREIGN BANK
v. R. CHRISTOPHER ZAMPOGNA
47. Sovereign Bank incorporates the above averments as if more fully set forth
herein.
48. On or about April 13, 2006, Zampogna executed that certain Commercial
Guaranty in favor of Sovereign Bank whereby Zampogna is guaranty and surety for all
debts, liabilities and obligations of Borrower to Sovereign Bank, including, without
limitation, all debts, liabilities and obligations of Borrower under the Note, and an
accompanying Disclosure for Confession of Judgment (collectively, the "Zamaosna
1
Guaran "). A true and correct of copy of the Zampogna Guaranty is attached hereto,
incorporated herein and marked as Exhibit "E".
49. Sovereign Bank is the holder of the Zampogna Guaranty.
50. The Zampogna Guaranty authorizes confessions of judgment.
51. The Zampogna Guaranty has not been assigned.
52. The judgment to be entered does not involve a loan defined as a "consumer
credit transaction" in accordance with Annex A. to Title 231, Chapter 2950, Rule
2951(a)(2).
53. Judgment has not been entered on the attached Zampogna Guaranty in any
jurisdiction.
54. The Zampogna Guaranty is less than twenty (20) years old and no application
for a court order granting leave to enter judgment after notice is required.
55. The attached Zampogna Guaranty imposes the liability against Defendant
Zampogna, and, as such, Defendant Zampogna is primarily liable with Defendant
Borrower for the principal and all sums due and owing under the Note upon default.
56. The Zampogna Guaranty provide for confessions of judgment against
Defendant Zampogna after default under the Zampogna Guaranty.
57. Defendant Zampogna is in default under the terms of the Zampogna Guaranty.
58. Sovereign Bank has exercised its right to confess judgment pursuant to the
terms of the Zampogna Guaranty for an amount which Defendant Zampogna may
become liable.
59. On or about August 5, 2009, Sovereign Bank delivered to Defendant
Zampogna, via first class mail and certified mail, return receipt requested, a written
6 11
notice of default and demand for full payment of all outstanding principal amounts, plus
accrued interest and late fees due under the Note, and Defendant Zampogna failed to do
so. A true and correct of copy of the Notice of Default is attached hereto, incorporated
herein and marked as Exhibit "B".
As a consequence of Defendant Zampogna's failure to cure this default,
Defendant Zampogna is liable to Sovereign Bank in the total sum of $167,536.43 plus per
diem interest of $30.20833 from October 1, 2009, until paid in full, including post-
judgment per contract, plus costs of suit itemized as follows:
Unpaid Principal Amount $ 150,000.00
Interest to September 30, 2009 $ 2,229.17
Late Fees $ 84.34
Contractual Attorney Fees 10.0% $ 15,222.92
TOTAL $ 167,536.43
Per Diem Interest from October 1, 2009
until paid in full including post judgment
per contract, plus costs of suit
$
30.20833
WHEREFORE, Plaintiff, Sovereign Bank, demands judgment against Defendant
Zampogna in the total sum of $167,536.43 plus per diem interest of $30.20833 from
October 1, 2009, until paid in full, including post judgment per contract, plus costs of suit
as authorized by the Warrant appearing in the Zampogna Guar ty.
Dated: September 30, 2009 By:
Forrest T. Passerin, Esquire
As Attorney for Defendants
20-536-ARO
2 Aldwyn Lane
Villanova PA 19085-1420
Phone: 610-526-6358
I.D. No. 85897
VERIFICATION
I verify that the statements made in the foregoing Complaint are true and correct
to the best of my knowledge, information, and belief. I further verify that I am a Vice
President of SOVEREIGN BANK, and that as such, I am authorized to make this
Verification on its behalf. I understand that false statements herein are made subject to
the penalties of 18 Pa.C.S. §4904 relating to unsworn falsification to authorities.
SOVEREIGN
DATED:X D 0
s Pesavento
vice
Page 1 of 3
PROMISSORY NOTE S-j &Z N SCQ I - 1'
Borrower: Gator Development, LLC
1520 Market Street
Camp HIM, PA 17011
Lender: sovereign Bonk
Commerdal Banking Division
235 N. 2nd Street
Harrisburg, PA 17101
Principal Amount: $40,000.00 Date of Note: _ ZOO`
PROMISE TO PAY. Gatw Development. LLC ("Borrower") promises to pay to Sovereign Bank I"Lernder"1, or
order, in Nwful money of the
United States of America, the prkucipsl amount of Forty Thousand J& 00/100 Dollars (=40.000.00) or so much as may be outstanding, together
with Interest on the unpaid outstanding prkroipal balance of each advance. Interest shag 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:
This Note is due and payable in full knmediately upon Lender's demand. In addition, Borrower will make monthly payments of all accred
unpaid Interest as of each payment due date. Borrower's fart interest payment is due thirty (30) days from the date of the Note, with all
subsequent payments to be due on the same day of each month thereafter.
Unless otherwise agreed or rmpked by applicable lew, payments will be applied first to any accrued unpaid interest: then to principal: then to
any late charges: and than to any unpaid collection costs. The annual Interest rate for this Note is computed on a 386/360 basis: that is, by
applying the ratio of the annual Interest rate over a year of 360 days, multiplied by the outstanding principal bakeries, multiplied by the actual
number of days the principal balance In 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 index which is the
Sovereign Bank Prime Rate. The Sovereign Bank Prime Rate shall mean the rate per annum from time to time established by Lender as the
Prime Rate and made available by Lender at its main office or, in the discretion of Lender, the base, reference or other rate then designated by
Lender for general commercial loan reference purposes, it being understood that such rate is a reference rate, not necessarily the lowest,
established from time to time, which serves as the basis upon which effective interest rates are calculated for loans making reference thereto.
Ithe "Index"). The index is not necessarily the lowest rate charged by Lender on its bans and is set by Lender in its sole discretion. If the
Index becomes unavailable during the term of this loan, Lender may designate a substitute index after notifying Borrower. Lender win tell
Borrower the current Index rate upon Borrower's request. The interest rate change will not occur more often than each time as and when the
"Index" changes. Borrower understands that Lender may make loans based on other rates as well. The interest rate to be applied to the unpaid
principal balance of this Note will be at a rate of 0.500 percentage points over the Index. NOTICE: Under no circumstances will the interest
rate on this Note be more than the maximum rate allowed by applicable low_
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 Lander 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 agrees not to send Lender payments marked "paid in full", "without recourse% or
similar language. If Borrower sends such a payment, lender may accept it without losing any of Lender's rights under this Note, and Borrower
will remain obligated to pay any further amount owed to Lender. All 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: Sovereign Bank, P. O. Box 12707 Reading,
PA 19612-2707.
LATE CHARGE. If a payment is 15 days or more late, Borrower will be charged 5.000% of the unpaid portion of the regularly scheduled
payment or 610.00, whichever is greater.
INTEREST AFTER DEFAULT. Upon default, including failure to pay upon final maturity, Lender, at its option, may, if permitted under applicable
law, increase the variable interest rate on this Note to 3.500 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 ("Event of Default") under this Note:
Payment Default. Borrower fails to make any payment when due under this Note.
Other Defaults. Borrower 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 to perform any term, obligation, covenant of 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 statement made or furnished to Lender by Borrower or on Borrower's behalf under this
Note or the related documents is false or misleading in any material respect, either now or at the time made or furnished or becomes false
or misleading at any time thereafter.
Death or Insolvency. The dissolution of Borrower (regardless of whether election to continue is made), any member withdraws from
Borrower, or any other termination of Borrower's existence as a going business or the death of any member, the insolvency of Borrower,
the appointment of a receiver for any part of Borrower's property, any assignment for the benefit of creditors, any type of creditor workout,
or the commencement of any proceeding under any bankruptcy or insolvency laws by or against Borrower.
Creditor or Forfeiture Proceedings. Commencement of foreclosure or forfeiture proceedings, whether by judicial proceeding, self-help,
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. In the event of a death, Lender, at its option, may, but shall not be required to, permit the Guarantor's estate to
assume unconditionally the obligations arising under the guaranty in a manner satisfactory to Lender, and, in doing so, cure any Event of
http://columblgaop4/lq/lmagePrinter.aspx?P=1 &L=0&Scale=90 4/1/2009
Page 2 of 3
PROMISSORY NOTE
(Continued) Page 2
Default.
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.
Cure Provisions. If any default, other than a default in payment is curable and if Borrower has not been given a notice of a breach of the
some provision of this Note within the preceding twelve (12) months, it may be cured if Borrower, after receiving written notice from
Lender demanding cure of such default; (1) cures the default within thirty (30) days; or (2) if the cure requires more then thirty (30)
days, immediately initiates steps which Lender deems in Lender's sole discretion to be sufficient to cure the default and thereafter
continues and completes all reasonable and necessary steps sufficient to produce compliance as soon as reasonably practical.
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, 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 Omits 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 (including efforts to modify or vacate any automatic stay
or injunction), and appeals. If not prohibited by applicable law, Borrower also will pay any court costs, in addition to all other sums provided by
law.
JURY WAIVER. Lender and Borrower hereby waive the right to any jury trial in any action, proceeding, or counterclaim brought by either Lender
or Borrower against the other.
GOVERNING LAW. This Note will be governed by federal law applicable to Lender and, to the extent not preempted by fail&* law, the laws of
the Commonwealth of Pennsylvanis without regard to its conflicts of low provisions, This Note has been accepted by Lander in the
Commonwealth of Pennsylvania.
RIGHT OF SETOFF. To the extent permitted by applicable law, Lender reserves a right of setoff in all Borrower's accounts with Lender (whether
checking, savings, or some other account). This includes all accounts Borrower holds jointly with someone also and all accounts Borrower may
open in the future. However, this does not iwkde any IRA or Keogh accounts, or any trust accounts for which setoff would be prohibited by
law. Borrower authorizes Lender, to the extent permitted by applicable law, to charge or setoff ON sums owing on the debt 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.
LINE OF CREDIT. This Note evidences a revolving line of credit. Advances under this Note may be requested orally by Borrower or as provided
in this paragraph. All oral requests shag be confirmed in writing on the day of the request. AN communications, instructions, or directions by
telephone or otherwise to Lender are to be directed to Lender's office shown above. The following person currently is authorized to request
advances and authorize payments under the fine of credit until Lender receives from Borrower, at Lender's address shown above, written notice
of revocation of his or her authority: R. Christopher Zanpogna, Marls¢ng Member of Gator Devebpment, U.C. Borrower agrees to be liable
for all sums either: (A) advanced in accordance with the instructions of an authorized person or IB) 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 fads 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, inkling any agreement
made in connection with the signing of this Note; (BI Borrower or any guarantor ceases doing business or is insolvent; IC) 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.
LINE OF CREDIT RENEWAL. This Note is subject to an annual review. Renewal will be based on Lender's ongoing satisfaction with Borrower's
financial condition.
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. If any part of this Note cannot be enforced, this fact will not affect the rest of the Note. 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 party 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 JUDGMENT. BORROWER HEREBY IRREVOCABLY AUTHORIZES AND EMPOWERS ANY ATTORNEY OR THE
PROTHONOTARY OR CLERK OF ANY COURT IN THE COMMONWEALTH OF PENNSYLVANIA, OR ELSEWHERE, TO APPEAR AT ANY TIME
FOR BORROWER AFTER A DEFAULT UNDER THIS NOTE AND WITH OR WITHOUT COMPLAINT FILED, CONFESS OR ENTER JUDGMENT
AGAINST BORROWER FOR THE ENTIRE PRINCIPAL BALANCE OF THIS NOTE AND ALL ACCRUED INTEREST, LATE CHARGES AND ANY AND
ALL AMOUNTS EXPENDED OR ADVANCED BY LENDER RELATING TO ANY COLLATERAL SECURING THIS NOTE, TOGETHER WITH COSTS
OF SUIT, AND AN ATTORNEY'S COMMISSION OF TEN PERCENT (10%) OF THE UNPAID PRINCIPAL BALANCE AND ACCRUED INTEREST FOR
COLLECTION, BUT IN ANY EVENT NOT LESS THAN FIVE HUNDRED DOLLARS 18500) ON WHICH JUDGMENT OR JUDGMENTS ONE OR
MORE EXECUTIONS MAY ISSUE IMMEDIATELY; AND FOR SO DOING, THIS NOTE OR A COPY OF THIS NOTE VERIFIED BY AFFIDAVIT SHALL
BE SUFFICIENT WARRANT. THE AUTHORITY GRANTED IN THIS NOTE TO CONFESS JUDGMENT AGAINST BORROWER SHALL NOT BE
EXHAUSTED BY ANY EXERCISE OF THAT AUTHORITY, BUT SHALL CONTINUE FROM TIME TO TIME AND AT ALL TIMES UNTIL PAYMENT IN
FULL OF ALL AMOUNTS DUE UNDER THIS NOTE. BORROWER HEREBY WAIVES ANY RIGHT BORROWER MAY HAVE TO NOTICE OR TO A
HEARING IN CONNECTION WITH ANY SUCH CONFESSION OF JUDGMENT AND STATES THAT EITHER A REPRESENTATIVE OF LENDER
SPECIFICALLY CALLED THIS CONFESSION OF JUDGMENT PROVISION TO BORROWER'S ATTENTION OR BORROWER HAS BEEN
REPRESENTED BY INDEPENDENT LEGAL COUNSEL.
11-1 , -I
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Page 3 of 3
PROMISSORY NOTE
(Continued) Page 3
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.
BORROWER ACKNOWLEDGES RECEIPT OF A COMPLETED COPY OF THIS PROMISSORY 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:
SO N BANK
X
a
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DISCO URE FOR CONFESSION OF `IDGMENT
Declarant: Gator Development, LLC Lender: Sovereign Bank
1520 Market Street Commercial Banking Division
Camp Hill, PA 17011 235 N. 2nd Street
Harrisburg, PA 17101
DISCLOSURE FOR CONFESSION OF JUDGMENT
THE UNDERSIGNED IS EXECUTING ON BEHALF OF DECLARANT, THIS \ DAY OF ?P? 20?1`. , A
PROMISSORY NOTE FOR $40,000.00 OBLIGATING DECLARANT TO REPAY THAT AMOUNT.
A. THE UNDERSIGNED UNDERSTANDS THAT THE NOTE CONTAINS A CONFESSION OF JUDGMENT PROVISION THAT WOULD PERMIT
LENDER TO ENTER JUDGMENT AGAINST DECLARANT IN COURT, AFTER A DEFAULT ON THE NOTE, WITHOUT ADVANCE NOTICE TO
DECLARANT AND WITHOUT OFFERING DECLARANT AN OPPORTUNITY TO DEFEND AGAINST THE ENTRY OF JUDGMENT. IN EXECUTING
THE NOTE, BEING FULLY AWARE OF DECLARANT'S RIGHTS TO ADVANCE NOTICE AND TO A HEARING TO CONTEST THE VALIDITY OF
ANY JUDGMENT OR OTHER CLAIMS THAT LENDER MAY ASSERT AGAINST DECLARANT UNDER THE NOTE, THE UNDERSIGNED, ON
BEHALF OF THE DECLARANT, IS KNOWINGLY, INTELLIGENTLY, AND VOLUNTARILY WAIVING THESE RIGHTS, INCLUDING ANY RIGHT TO
ADVANCE NOTICE OF THE ENTRY OF JUDGMENT, AND THE UNDERSIGNED EXPRESSLY AGREES AND CONSENTS TO LENDER'S ENTERING
JUDGMENT AGA111jrST [DECLARANT BY CONFESSION AS PROVIDED FOR IN THE CONFESSION OF JUDGMENT PROVISION.
INITIALS: !
B. THE UND98MNED FURTHER UNDERSTANDS THAT IN ADDITION TO GIVING LENDER THE RIGHT TO ENTER JUDGMENT AGAINST
DECLARANT WITHOUT ADVANCE NOTICE OR A HEARING, THE CONFESSION OF JUDGMENT PROVISION IN THE NOTE ALSO CONTAINS
LANGUAGE THAT WOULD PERMIT LENDER, AFTER ENTRY OF JUDGMENT, AGAIN WITHOUT EITHER ADVANCE NOTICE OR A HEARING, TO
EXECUTE ON THE JUDGMENT BY FORECLOSING UPON, ATTACHING, LEVYING ON, TAKING POSSESSION OF OR OTHERWISE SEIZING
DECLARANT'S PROPERTY, IN FULL OR PARTIAL PAYMENT OF THE JUDGMENT. IN EXECUTING THE NOTE, BEING FULLY AWARE OF
DECLARANT'S RIGHTS TO ADVANCE NOTICE AND A HEARING AFTER JUDGMENT IS ENTERED AND BEFORE EXECUTION ON THE
JUDGMENT, THE UNDERSIGNED, ON BEHALF OF THE DECLARANT, IS KNOWINGLY, INTELLIGENTLY AND VOLUNTARILY WAIVING THESE
RIGHTS, AND THE UNDERSIGNED EXPRESSLY AGREES AND CONSENTS TO LENDER'S IMMEDIATELY EXECUTING ON THE JUDGMENT IN
ANY MANNER
r
INITIALS: / 'jTTED BY APPLICABLE STATE AND FEDERAL LAW, WITHOUT GIVING DECLARANT ANY ADVANCE NOTICE.
C. AFTER4 A4INC-READ AND DETERMINED WHICH OF THE FOLLOWING STATEMENTS ARE APPLICABLE. BY INITIALING EACH
STATEMENT THAT APPLIES, THE UNDERSIGNED REPRESENTS THAT:
INITI
1. DECLARANT WAS REPRESENTED BY DECLARANT'S OWN INDEPENDENT LEGAL COUNSEL IN CONNECTION WITH THE
5NOTE
2. A REPRESENTATIVE OF LENDER SPECIFICALLY CALLED THE CONFESSION OF JUDGMENT PROVISION IN THE NOTE TO
DECLARANT'S ATTENTION.
THIS DISCLOSURE IS GIVEN UNDER SEAL AND IT IS INTENDED THAT THIS DISCLOSURE IS AND SHALL CONSTITUTE AND HAVE THE
EFFECT OF A SEALED INSTRUMENT ACCORDING TO LAW.
DECLARANT:
GA
Development, LLC
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Gator Development, LLC
Loan #0051824501-18
Page 1
v ereiC7nBaa
NOTE MODIFICATION AGRE NT
?l?oN r 2?1
This Agreement made this 1Z day of Beeember, 2988- by and among, GATOR
DEVELOPMENT, LLC, having an address of 1520 Market Street, Camp Hill, PA 17011 (the
"Borrower"); R. CHRISTOPHER ZAMPOGNA having an address of 5 Saratoga Place, Camp Hill,
PA 17011; PETER J. RUSSO, having an address of 4 Shoff Court, Mechanicsburg, PA 17055;
401 MARKET STREET PARTNERS, LLC, having an address of 1520 Market Street, Camp Hill,
PA 17011 (the "Guarantors'); and SOVEREIGN BANK, a federal savings bank, having an
address of 235 N. 2nd Street, Harrisburg, PA 17101 (the "Lender").
Whereas, on April 13, 2006, the Borrower obtained from Lender arevolving line of credit
evidenced by a Promissory Note in the amount . of Forty Thousand and 00/100 Dollars
($40,000.00) (the "Principal Amount') bearing the same date, which Note was subsequently
increased to the amount of $150,000.00 (the "Note'). The Note is due and payable upon demand
by Lender; and
Whereas, the rate of interest applied to the unpaid principal balance on the Note is equal
to one half percent (.50%) above Lender's Prime Rate, as same may change from time to time
(the "Interest Rate'); and
Whereas, on September 29, 2006, the Borrower executed a Note Modification
Agreement; and
Whereas, on January 15, 2007, the Borrower executed a Second Promissory Note
Modification Agreement; and
Whereas, the outstanding principal balance owing on the Note as of December 12, 2008
was One Hundred Fifty Thousand and 00/100 Dollars ($150,000.00) (the "Outstanding Balance');
and
Whereas, at the request of the Borrower and in agreement of Lender the Note will be
further modified.
Now, Therefore, in consideration of the mutual benefits inuring to Borrower and Lender
and other good and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged and intending, to be legally bound hereby, it is agreed that the Note is hereby
modified as described below.
1. Upon execution of the within Agreement, the Interest Rate applied to the
unpaid principal balance of the Note is hereby amended to Lender's Prime
Rate plus three percent (3.00%), as same may change from time to time.
Guarantors acknowledge and consent to the execution and delivery of this Note
Modification Agreement and hereby ratify and affirm the actions taken therein. The Guarantors
affirm that as of the date herein, the obligations and liabilities under the Guarantees remain
absolute, unconditional and in full force and effect.
All terms of the Note will continue to be fully effective, except to the extent that any of
them are expressly changed by this Agreement. The undersigned Borrower and Guarantors
hereby confirm and acknowledge that they have no defense, counterclaim or setoff, which could
iya
Gator Development, LLC
Loan #0051824501-18
Page 2
affect the enforceability of the Note, and other Loan Documents and hereby reaffirm the validity of
the Note and all other Loan Documents. All initially capitalized terms used herein which are not
otherwise defined herein shall have the meanings ascribed in the Business Loan Agreement
between the Lender and Borrower dated as of April 13, 2006, as the same may have been
amended from time to time thereafter (the "Business Loan Agreement").
CONFESSION OF JUDGMENT: BORROWER HEREBY IRREVOCABLY AUTHORIZES AND EMPOWERS
ANY ATTORNEY OR THE PROTHONOTARY OR CLERK OF ANY COURT IN THE COMMONWEALTH OF
PENNSYLVANIA, OR ELSEWHERE, TO APPEAR AT ANY TIME FOR BORROWER AFTER A DEFAULT UNDER THE
NOTE AS MODIFIED HEREIN AND WITH OR WITHOUT COMPLAINT FILED, CONFESS OR ENTER JUDGMENT
AGAINST BORROWER FOR THE ENTIRE PRINCIPAL BALANCE OF THE NOTE, AS MODIFIED, AND ALL ACCRUED
INTEREST, LATE CHARGES AND ANY AND ALL AMOUNTS EXPENDED OR ADVANCED BY LENDER RELATING TO
ANY COLLATERAL SECURING THE NOTE, TOGETHER WITH COSTS OF SUIT, AND AN ATTORNEY'S
COMMISSION OF TEN PERCENT (10%) OF THE UNPAID PRINCIPAL BALANCE AND ACCRUED INTEREST FOR
COLLECTION, BUT IN ANY EVENT NOT LESS THAN FIVE HUNDRED DOLLARS ($500.00) ON WHICH JUDGMENT
OR JUDGMENTS ONE OR MORE EXECUTIONS MAY ISSUE IMMEDIATELY, AND FOR SO DOING, THIS
MODIFICATION AGREEMENT OR A COPY OF THIS MODIFICATION AGREEMENT VERIFIED BY AFFIDAVIT SHALL
BE SUFFICIENT WARRANT. THE AUTHORITY GRANTED IN THIS MODIFICATION AGREEMENT TO CONFESS
JUDGMENT AGAINST BORROWER SHALL NOT BE EXHAUSTED BY ANY EXERCISE OF THAT AUTHORITY, BUT
SHALL CONTINUE FROM TIME TO TIME AND AT ALL TIMES UNTIL PAYMENT 'IN FULL OF ALL AMOUNTS DUE
UNDER THE NOTE AND THIS MODIFICATION AGREEMENT. BORROWER HEREBY WAIVES ANY RIGHT
BORROWER MAY HAVE TO NOTICE OR TO A HEARING IN CONNECTION WITH ANY SUCH CONFESSION OF
JUDGMENT AND STATES THAT EITHER A REPRESENTATIVE OF LENDER SPECIFICALLY CALLED THIS
CONFESSION OF JUDGMENT PROVISION TO BORROWER'S ATTENTION OR BORROWER HAS BEEN
REPRESENTED BY INDEPENDENT LEGAL COUNSEL.
A separate document entitled "Disclosure For Confession of Judgment" is to be signed by
Borrower and is attached to and made a part of this Agreement.
This Agreement will be binding upon the parties hereto, as well as their successors and
assigns, as the case may be.
Whereof, the parties have set their hands and seal this 1 day of 9eeeml; ,
Attest: LENDER:
SOVEREIGN BA 7,K
By:
BORRO
GATO ENT, C
B
R Chri pher Zam rIT, Managing Member
401 AR TR PARTNERS, LLC
B
R.. opher Zamp na, Managing Member
iya
Page 1 of 1
Gatw Devdwnent, LLC
Loan #0051824501-18
Page 3
DISCLOSURE FOR CONFESSION OF JUDGMENT
?b P'1UZQIZI'k
THE UNDERSIGNED IS EXECUTING ON BEHALF OF DECLARANT, THIS. 12 DAY OF AGWRI GR, eW. A
MODIFICATION AGREEMENT OF A PROMISSORY NOTE DATED APRIL 13, 2000, IN THE ORIGINAL PRINCIPAL
AMOUNT OF $40,000.00, SUBSEQUENTLY INCREASED TO THE AMOUNT OF $150,000.00, OBLIGATING
DECLARANT TO REPAY THE AMOUNT AS STATED THEREIN.
A. THE UNDERSIGNED UNDERSTANDS THAT THE MODIFICATION AGREEMENT CONTAINS A
CONFESSION OF JUDGEMENT PROVISION THAT WOULD PERMIT LENDER TO ENTER JUDGMENT AGAINST
DECLARANT IN COURT, AFTER A DEFAULT ON THE NOTE, WRHOUT ADVANCE NOTICE TO DECLARANT AND
WITHOUT OFFERING DECLARANT AN OPPORTUNITY TO DEFEND AGAINST THE ENTRY OF JUDGMENT. IN
EXECUTING THE MODIFICATION AGREEMENT, BEING FULLY AWARE OF DECLARANTS RIGHTS TO ADVANCE
NOTICE AND TO A HEARING TO CONTEST THE VALIDITY OF ANY JUDGMENT OR OTHER CLAIMS THAT LENDER
MAY ASSERT AGAINST DECLARANT UNDER THE NOTE, THE UNDERSIGNED, ON BEHALF OF THE DECLARANT,
IS KNOWINGLY, INTELLIGENTLY, AND VOLUNTARILY WAIVING THESE RIGHTS, INCLUDING ANY RIGHT TO
ADVANCE NOTICE OF THE ENTRY OF JUDGMENT, AND THE UNDERSIGNED EXPRESSLY AGREES AND
CONSENTS T LENDER' S ENTERING JUDGMENT AGAINST DECLARANT BY CONFESSION AS PROVIDED FOR
IN THE ON OF JUDGMENT PROVISION.
INITIALS:
B. THE UNDERSIGNED FURTHER UNDERSTANDS THAT IN ADDITION TO GIVING LENDER THE
RIGHT TO ENTER JUDGMENT AGAINST DECLARANT WITHOUT ADVANCE NOTICE OR A HEARING, THE
CONFESSION OF JUDGMENT PROVISION IN THE MODIFICATION AGREEMENT ALSO CONTAINS LANGUAGE
THAT WOULD PERMIT LENDER, AFTER ENTRY OF JUDGMENT, AGAIN WITHOUT EITHER ADVANCE NOTICE OR
A HEARING, TO EXECUTE ON THE JUDGMENT BY FORECLOSING UPON, ATTACHING, LEVYING ON, TAKING
POSSESSION OF OR OTHERWISE SEIZING DECLARANTS PROPERTY, IN FULL OR PARTIAL PAYMENT OF THE
JUDGMENT. IN EXECUTING THE MODIFICATION AGREEMENT, BEING FULLY AWARE OF DECLARANTS RIGHTS
TO ADVANCE NOTICE AND A HEARING AFTER JUDGMENT IS ENTERED AND BEFORE EXECUTION ON THE
JUDGMENT, THE UNDERSIGNED, ON BEHALF OF DECLARANT, IS KNOWINGLY, INTELLIGENTLY AND
VOLUNTARILY WAIVING THESE RIGHTS, AND THE UNDERSIGNED EXPRESSLY AGREES AND CONSENTS TO
LENDERS DIATELY EXECUTING ON THE JUDGMENT, IN ANY MANNER PERMITTED BY APPLICABLE
STATE RAL LAW, WITHOUT GIVING DECLARANT ANY ADVANCE NOTICE.
INITIALS:
C. AFTER WAVING READ AND DETERMINED WHICH OF THE FOLLOWING STATEMENTS ARE
APPLICABLE, BY INITIALING EACH STATEMENT THAT APPLIES, THE UNDERSIGNED REPRESENTS THAT:
INITIALS
1. DECLARANT WAS REPRESENTED BY DECLARANTS OWN INDEPENDENT COUNSEL IN
CONNECTION WITH THE MODIFICATION AGREEMENT.
2. A REPRESENTATIVE OF LENDER SPECIFICALLY CALLED THE CONFESSION
OF JUDGMENT PROVISION IN THE MODIFICATION AGREEMENT TO DECLARANTS
ATTENTION.
THIS DISCLOSURE IS GIVEN UNDER SEAL AND IT IS WENDED THAT THIS DISCLOSURE IS AND SHALL
CONSTITUTE AND HAVE THE EFFECT OF A SEALED INSTRUMENT ACCORDING TO LAW.
DEC AN
GA R D EO MEN C
(Seal)
lChplp , Managing Member
rya
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Gator ppvelopment, LLC
Loan #51'$24501-18
Bsbk.
SECOND PROMISSORY NOTE MODIFICATION AGREEMENT
This Agreement made this day of January, 2007 by and between, Gator
Development, LLC, having an address of 1520 Market Street, Camp Hill, PA 17011 (the
"Borrower") and R. Christopher Zampogna, having an address of 5 Saratoga Place, Camp Hill,
PA, 17011, Peter J. Russo, having an address of 4 Shoff Court, Mechanicsburg, PA 17055 and
James R. Ridd, having an address of 3 Charisma Drive, Camp Hill, PA 17011 and Kevin M.
Shook, having an address of 3716 Falkstone Drive, Mechanicsburg, PA 17050 and Rory G.
Ritrievi, having an address of 1019 Tunbridge Lane, Mechanicsburg, PA 17050 and 401 Market
Street Partners, LLC, having an address of 1520 Market Street, Camp Hill, PA 17011 (the
"Guarantors") and Sovereign Bank, having an address of 235 N. 2nd Street, Harrisburg, PA
17101 (the "Lender");
Whereas, on April 13, 2006, the Borrower obtained from Lender a Revolving Line of
Credit evidenced by a Promissory Note in the amount of Forty Thousand and 00/100 Dollars
($40,000.00) (the "Principal Amount") bearing the same date (the "Note"). The Note has a
maturity date due and payable upon Lender's demand (the "Maturity Date"); and
Whereas, the interest rate applied to the unpaid principal balance of the Note is a
variable rate equal to Sovereign Bank Prime Rate, plus a margin of .50%; said rate to change as
and when the Sovereign Bank Prime Rate changes, (the "Interest Rate"); and
Whereas, as security for the Loan, Peter J. Russo, James R. Ridd, Kevin M. Shook and
Rory G. Ritrievi executed and delivered to Lender Commercial Guarantees dated April 13, 2006
(the "Collateral"); and
Whereas, the Note, Guarantees and all other documents and instruments executed in
connection with or relating to the Loan are referred to herein, collectively, as the "Loan
Documents"; and, unless otherwise specified, all defined terms in the Loan Documents will have
the same meaning herein as in the Loan Documents; and
Whereas, on September 29, 2006, Borrower obtained from Lender a Note Modification
Agreement, which Agreement increased the principal amount of the Note and Line of Credit
facility from $40,000.00 to $100,000.00. Borrower executed Lender's form of Commercial
Security Agreement providing Lender with a first lien security interest in all business assets. 401
Market Street Partners, LLC was added as a Corporate Guarantor and is now liable for the
obligation and liabilities of the Borrower to Lender (the "First Modification"); and
Whereas, the outstanding principal balance owing on the Note as of January 10, 2007, is
One Hundred Thousand and 00/100 Dollars ($100,000.00) (the "Outstanding Balance"); and
Whereas, at the request of the Borrower and in agreement of Lender the Note and Line
of Credit facility will be further modified.
Now Therefore, in consideration of the mutual benefits inuring to Borrower and Lender
and other good and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged and intending to be legally bound hereby, it is agreed that the Note and Line of
Credit facility are hereby modified as described below.
Gator Development, LLC
Loan #51824501-18
1. Upon execution of this Agreement, the Principal Amount of the Note and
Line of Credit facility will be increased from One Hundred Thousand and 001100 Dollars
($100,000.00) to One Hundred Fifty Thousand and 00/100 Dollars ($150,000.00) at any time.
Borrower promises to pay to Lender or order, in lawful money of the United States of
America, the principal amount of One Hundred Fifty Thousand and 001100 Dollars
($150,000.00) or so much as may be outstanding, together with interest on the unpaid
principal balance of each advance. Borrower will continue to pay regular monthly
payments of all accrued unpaid interest due as of each payment due date.
Guarantors acknowledge and consent to the Borrower's execution and delivery of this
Agreement and hereby ratify and affirm the actions taken therein. The Guarantors affirm that as
of the date herein, the obligations and liabilities of the Guarantors under the Guarantees remain
absolute, unconditional and in full force and effect.
All terms of the Note will continue to be fully effective, except to the extent that any of
them are expressly changed by this Agreement. The undersigned Borrower and Guarantors
hereby confirm and acknowledge that they have no defense, counterclaim or setoff, which could
affect the enforceability of the Note, and other Loan Documents and hereby reaffirm the validity of
the Note and all other loan Documents.
This Agreement will be binding upon the Parties hereto, as well as their Successors and
assigns, as the case may be. /
In Witness hereof, the parties hereto have hereunto set their hands and seal this
day of January, 2007.
ATTEST:
LENDER:
SOVEBy:
TNESS:
NESS AS TO ALL:
BORROWER:
Gator
R a men LC
B
.. stopher Zan fogna,
Managing Member
Individually
Peter
Gator Development, LLC
Loan #51824501-18
q rNESS:
401
R. Christopher Zampog
Managing Member
LLC
Gator Development, LLC
Loan #51824501-18
Page 1
?8overe1gn Bank
NOTE MODIFICATION AGREEMENT
This Agreement made this -I T y of September, 2006 by and between, GATOR
DEVELOPMENT, LLC, having an address of 1520 Market Street, Camp HUI, PA 17011 (the
"Borrower") and Peter J. Russo, having an address of 4 Shoff Court, Mechanicsburg, PA 17055
and James R. Ridd, having an address of 3 Charisma Drive, Camp Hill, PA 17011 and Kevin M.
Shook, having an address of 3716 Falkstone Drive, Mechanicsburg, PA 17050 and Rory G.
Ritrievi, having an address of 1019 Tunbridge Lane, Mechanicsburg, PA 17050 and 401 Market
Street Partners, LLC, having an address of 1520 Market Street, Camp Hill, PA 17011 (the
"Guarantors") and Sovereign Bank, having an address of 235 N. 2nd Street, Harrisburg, PA
17101 (the "Lender");
Whereas, on April 13, 2006, the Borrower obtained from Lender a Revolving Line of
Credit evidenced by a Promissory Note in the amount of Forty Thousand and 00/100 Dollars
($40,000.00) (the "Principal Amount") bearing the same date (the "Note"). The Note has a
maturity date due and payable upon Lender's demand (the "Maturity Date"); and
Whereas, the interest rate applied to the unpaid principal balance of the Note is a
variable rate equal to Sovereign Bank Prime Rate, plus a margin of .50%; said rate to change as
and when the Sovereign Bank Prime Rate changes, (the "Interest Rate"); and
Whereas, as security for the Loan, Peter J. Russo, James R. Ridd, Kevin M. Shook and
Rory G. Ritrievi executed and delivered to Lender Commercial Guarantees dated April 13, 2006
(the "Collateral"); and
Whereas, the Note, Guarantees and all other documents and instruments executed in
connection with or relating to the Loan are referred to herein, collectively, as the "Loan
Documents"; and, unless otherwise specified, all defined terms in the Loan Documents will have
the same meaning herein as in the Loan Documents; and
Whereas, the outstanding principal balance owing on the Note as of September 11,
2006, is Thirty Thousand and 00/100 Dollars ($30,000.00) (the "Outstanding Balance"); and
Whereas, at the request of the Borrower and in agreement of Lender the Note and Line
of Credit facility will be further modified.
Now Therefore, in consideration of the mutual benefits inuring to Borrower and Lender
and other good and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged and intending to be legally bound hereby, it is agreed that the Note and Line of
Credit facility are hereby modified as described below.
1. Upon execution of this Agreement, the Principal Amount of the Note and
Line of Credit facility will be increased from Forty Thousand and 00/100
Dollars (;40,000.00) to One Hundred Thousand and 001100 Dollars
($100,000.00) at anytime.
Borrower promises to pay to Lender or order, in lawful money of the United
States of America, the principal amount of One Hundred Thousand and
Gator Development, LLC
Loan #51824501-18
Page 2
001100 Dollars ($100,000.00) or so much as may be outstanding, together
with interest on the unpaid principal balance of each advance. Borrower
will continue to pay regular monthly payments of all accrued unpaid
interest due as of each payment due date.
2. Concurrently with this Agreement, Borrower shall execute Lender's form of
Commercial Security Agreement providing Lender with a first lien security
interest in all business assets.
3. Upon execution of this Agreement, 401 Market Street Partners, LLC shall
be added as a Guarantor on the Note and shall be held liable for the
obligations and liabilities of the Borrower to Lender, whether now existing
or hereafter incurred or created and concurrently with this Agreement shall
execute a Commercial Guaranty form, as an additional loan document for
this Loan.
Guarantors acknowledge and consent to the Borrower's execution and delivery of this
Agreement and hereby ratify and affirm the actions taken therein. The Guarantors affirm that as
of the date herein, the obligations and liabilities of the Guarantors under the- Guarantees remain
absolute, unconditional and in full force and effect.
All terms of the Note will continue to be fully effective, except to the extent that any of
them are expressly changed by this Agreement. The undersigned Borrower and Guarantors
hereby confirm and acknowledge that they have no defense, counterclaim or setoff, which could
affect the enforceability of the Note, and other Loan Documents and hereby reaffirm the validity of
the Note and all other Loan Documents.
This Agreement will be binding upon the Parties hereto, as well as their Successors and
assigns, as the case may be.
In Witness hereof, the parties hereto have hereunto set their hands and seal this 2C
day of September, 2006.
Attest:
-id l
LENDER:
SOVEREIGN BANK
Wit
Witness o All: r^
v?
G
Peter . usso, Individually
Gator Development, LLC
Loan #51824501-18
Page 3
Witness: _
*,,Sovereign Banksm
August 5, 2003
VIA REGULAR MAIL AND
CERTIFIED MAIL, RETURN RECEIP'T' REQUESTED
Gator Development, LLC
1520 Market Street
Camp Hill, Pennsylvania 17011
401 Market Street Partners, LLC
1520 Market Street
Camp Hill, Pennsylvania 17011
Peter J. Russo
4 Shoff Court
Mechanicsburg, Pennsylvania 17055
R. Christopher Zampogna
5 Saratoga Place
Camp Hill, Pennsylvania 17011
Re: Indebtedness of Gator Development, LLC (the "Borrower"), to
Sovereign Bank (the "Bank") as guarantied by, 401 Market Street
Partners, LLC, Peter J. Russo and R. Christopher Zampogna
(collectively, the "Guarantors")
Dear Gentlemen:
Responsibility for the loan arrangements between the Bank and the Borrower has
been transferred. All communications from the Borrower and/or Guarantors to the Bank
are to, be addressed to James Pesavento, Vice President, PAl-HNS-03-01, 235
North Second Street, Harrisburg, PA 17101, until fiuther written notice from the
Bank. All terms not otherwise defined herein shall have the meaning ascribed to such
terns in that certain Business Loan Agreement dated June 28, 2006, between the
Borrower and the Bank (the "Loan Agreement').
Reference is made to the Promissory Note of the Borrower (as amended) in the
original principal amount of $150,000.00, dated April 13, 2006, and payable to the order
Forres T. Passerin, Esquire
Sovereign Bank
20-536-COl
One Aldwyn Center
East Lancaster Avenue and Aldwyn Lane
Villanova PA 19085-1420
Telephone: 610-526-6358
E-mail: FnasserinaSovereienBankcom
August 5, 2009
Page 2 of 3
of the Bank (the "Note"). The Bank is the holder of the Note. The Borrower is in default
under the Note in that the Borrower is, among other things, in default of its obligations to
the Bank under that certain Promissory Note of the Borrower in the original principal
amount of $200,000.00, dated June 28, 2006, and payable to the order of the Bank by
failing to make timely payments of principal and interest as they become due thereunder
(the "Default"). This letter constitutes formal notice to the Borrower and Guarantors of
the occurrence of the Default.
Effective as of August 5, 2009, the Bank has elected to increase the rate of
interest charged on the unpaid principal balance of the Note to the default rate of interest
provided for in the Note, which is the Sovereign Bank Prime Rate (as defined in the Loan
Agreement) plus 3.5% per annum (the "Default Interest Rate"). The Borrower may
continue to receive invoices for payments under the Note that do not reflect this change
in interest rate. The failure of the Bank to forward invoices to the Borrower reflecting
payments at the Default Interest Rate is in no event a waiver of the imposition by the
Bank of the Default Interest Rate under the Note as of the date set forth herein.
As a result of the Borrower's default, the Bank has elected to exercise its option to
declare the entire unpaid principal balance of the Note and all accrued and unpaid interest
to be immediately due and payable. As of the date hereof, the unpaid, due and owing
amount to the Bank under the Note is $150;599.04. Demand is hereby made for the
immediate payment in full of all amounts which are due and which may become due
under the Note. The balance due under the Note may increase or decrease as a result of
the receipt of payments and the proceeds of collateral securing the Note and the accrual
of interest, late charges, costs of collection and other fees, costs and expenses. Therefore,
immediately prior to remitting payment, please contact James Pesavento at 717-221-
3886 to obtain final payoff amounts and remittance instructions.
Nothing contained in this letter is intended as a waiver or release of any of the
terms or provisions of the Note, Loan Agreement or of any and all other notes,
instruments or agreements between the Bank and the Borrower and/or Guarantors (the
"Loan Documents"), including, without limitation, the requirement that the Borrower
and/or Guarantors pay on demand any amount so payable under the provisions of the
instrument evidencing the same. The Bank reserves all rights and remedies available to it
under the Loan Documents, and applicable law, all of which are expressly hereby
reserved. No discussions between the Bank and the Borrower and/or Guarantors
concerning this notification, other loan relationships between the Bank and the Borrower
and/or Guarantors, or any other matter shall imply an agreement on the part of the Bank
to waive any of its rights and remedies or to forbear from taking any action authorized by
the Loan Documents or applicable law, whether or not such discussions may be
continuing. The acceptance of any partial payment of any of the obligations of the
Borrower and/or Guarantors to the Bank shall not be deemed a waiver or limitation of
any of the Bank's rights reserved herein as to the full amount of any unpaid balance. Any
delay or forbearance by the Bank in the enforcement or pursuit of any of its rights and
August 5, 2009
Page 3 of 3
remedies under the Loan Documents or applicable law shall not constitute a waiver
thereof, nor shall it be a bar to the exercise of the Bank's rights or remedies at a later
date.
Should you have any questions, please do not hesitate to contact my office.
Very yours,- .
T. P-ASSERM, ESQUIRE
FTP/dm
cc: James Pesavento, Vice President
Page 1 of 4
COMMERCIAL GUARANTY
Borrower: Gator Development, LLC Lender: Sovereign Bank, a Federal Savings Bank
1520 Market Street MAIL CODE 00-571-CM1
Camp Hill, PA 17011 235 N. 2nd Street
Harrisburg, PA 17101
Guarantor: 401 Market Street Partners, LLC
1520 Market Street
Camp Hill, PA 17011
CONTINUING GUARANTEE OF PAYMENT AND PERFORMANCE. For good and valuable consideration, Guarantor absolutely and unconditionally
guarantees full and punctual payment and satisfaction of the Indebtedness of Borrower to Lender, and the performance and discharge of all
Borrower's obligations under the Note and the Related Documents. This is a guaranty of payment and performance and not of collection, so
Lender can enforce this Guaranty against Guarantor even when Lender has not exhausted Lender's remedies against anyone else obligated to
pay the Indebtedness or against any collateral securing the Indebtedness, this Guaranty or any other guaranty of the Indebtedness. Guarantor
will make any payments to Lender or its order, on demand, in legal tender of the United States of America, in same-day funds, without setoff or
deduction or counterclaim, and will otherwise perform Borrower's obligations under the Note and Related Documents. Under this Guaranty,
Guarantor's liability is unlimited and Guarantor's obligations are continuing.
INDEBTEDNESS. The word "Indebtedness" as used in this Guaranty means all of the principal amount outstanding from time to time and at any
one or more times, accrued unpaid interest thereon and all collection costs and legal expenses related thereto permitted by law, attorneys' fees,
arising from any and all debts, liabilities and obligations of every nature or form, now existing or hereafter arising or acquired, that Borrower
individually or collectively or interchangeably with others, owes or will owe Lender. "Indebtedness" includes, without Imitation, loans, advances,
debts, overdraft indebtedness, credit card indebtedness, base obligations, NabNities and obligations under any interest rate protection
spreements or foreign currency exchange agreements or commodity price protection agreements, other obligations, and liabilities of Borrower,
and any present or future judgments against Borrower, future advances, loans or transactions that renew, extend, modify, refinance, consolidate
or substitute these debts, liabilities and obligations whether: voluntarily or involuntarily incurred: due or to become due by their terms or
acceleration; absolute or contingent; liquidated or unliquidated; determined or undetermined; direct or indirect; primary or secondary in nature or
arising from a guaranty or surety; secured or unsecured; joint or several or joint and several; evidenced by a negotiable or non-negotiable
instrument or writing; originated by Lender or another or others; barred or unenforceable against Borrower for any reason whatsoever; for any
transactions that may be voidable for any reason (such as infancy, insanity, ultra vires or otherwise); and originated they" reduced or
extinguished and then afterwards increased or reinstated.
If Lender presently holds one or more guaranties, or hereafter receives additional guaranties from Guarantor, Lender's rights under all guaranties
shall be cumulative. This Guaranty shall not (urdess specifically provided below to the contrary) affect or invalidate any such other guaranties.
Guarantor's liability will be Guarantor's aggregate liability under the terms of this Guaranty and any such other unterminated guaranties.
CONTINUING GUARANTY. THIS IS A "CONTINUING GUARANTY" UNDER WHICH GUARANTOR AGREES TO GUARANTEE THE FULL AND
PUNCTUAL PAYMENT, PERFORMANCE AND SATISFACTION OF THE INDEBTEDNESS OF BORROWER TO LENDER, NOW EXISTING OR
HEREAFTER ARISING OR ACQUIRED, ON AN OPEN AND CONTINUING BASIS. ACCORDINGLY, ANY PAYMENTS MADE ON THE
INDEBTEDNESS WILL NOT DISCHARGE OR DIMINISH GUARANTOR'S OBLIGATIONS AND LIABILITY UNDER THIS GUARANTY FOR ANY
REMAINING AND SUCCEEDING INDEBTEDNESS EVEN WHEN ALL OR PART OF THE OUTSTANDING INDEBTEDNESS MAY BE A ZERO
BALANCE FROM TIME TO TIME.
DURATION OF GUARANTY. This Guaranty will take effect when received by bender without the necessity of any acceptance by Lender, or any
notice to Guarantor or to Borrower, and will continue in full force urvdl all the 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 bender, 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 the Indebtedness which at the time
of notice of revocation is contingent, unNquideted, undetermined or not due and which later becomes absolute, liquidated, determined or due.
This Guaranty will continue to bind Guarantor for all the 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. AN 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 new Indebtedness. This Guaranty shall bind Guarantor's estate as to the 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 shad 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. it is anticipated that fluctuations may occur in the aggro" aunnount of ft Indebtednas
covered by 06 Guaranty, end Guarantor specifically acknowledges and agrees that reductions In ft amount of the Indebtedness, even to zero
dollars 100.001, prior to Guarantor's written revocation of Otis Guaranty shall not constitute a termination of this Guaranty. This Guaranty is
binding upon Guarantor and Guarantor's heir, successors and assigns to long as any of the Indebtedness remains unpaid and even though the
Indebtedness may from time to time be zero dollars 00.001.
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: (A) prior to revocation as set forth above, to make
one or more additional secured or unsecured loans to Borrower, to base equipment or other goods to Borrower, or otherwise to extend
additional credit to Borrower; (B) to niter, 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 we, 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; I0 to determine how, when and what application of
payments and credits shall be made on the Indebtedness; IF) to apply such security and direct the order or manner of sale thereof, including
without &Motion, any nonjudicial sale permitted by the terms of the controlling security agreement or deed of trust, as Lender in its discretion
may determine; (G) 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 qualify in any way the terms of this Guaranty; (8) this Guaranty is
it 11"• III, '1"lili7
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COMMERCIAL GUARANTY
(Continued) Page 2
executed at Borrower's request and not at the request of Lender; (C) Guarantor has full power, right and authority to enter into this Guaranty;
(0) 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, court decree or order applicable to Guarantor; (E) Guarantor has not and will not, without
the prior written consent of Lender, son, lease, assign, encumber, hypothecate, transfer, or otherwise dispose of all or substantially an of
Guarantor's assets, or any interest therein; IF) upon Lender's request, Guarantor will provide to Lender financial and credit information in form
acceptable to Lender, and all such financial information which currently has been, and all future financial information which will be provided to
Lender is and will be true and correct in all material respects and fairly present Guarantor's financial condition as of the dates the financial
information is provided; (G) no material adverse change has occurred in Guarantor's financial condition since the date of the most recent
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 (J) Guarantor has established
adequate means of obtaining from Borrower on a continuing basis information regarding Borrower's fnanclal condition. Guarantor agrees to
keep adequately informed from such means of any facts, events, or circumstances which night 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 FINANCIAL STATEMENTS. Guarantor agrees to furnish Lender with the following:
Annual Statements. As soon as available, but in no event later than ninety (90) days after the end of each fiscal year, Guarantor's balance
sheet and income statement for the year ended, prepared by Guarantor.
Tax Returns. As soon as available, but in no event later than sixty (60) days after the applicable filing date for the tax reporting period
ended. Federal and other governmental tax returns, prepared by a certified public accountant satisfactory to Lender.
All financial reports required to be provided under this Guaranty shall be prepared in accordance with GAAP, applied on a consistent basis, and
certified by Guarantor as being true and correct.
GUARANTOR'S WAIVERS. Except as prohibited by applicable law, Guarantor waives any right to require Lender IA) to continue lending
money or to extend other credit to Borrower; (B) 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 nonection 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; (F) 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-deficiency" 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: (B) any election of remedies by Lender which destroys or otherwise adversely affects
Guarantor's subrogation rights or Guarantor's rights to proceed against Borrower for teirnbursement, including without limitation, any loss of
rights Guarantor may suffer by reason of any law limiting, qualifying, or discharging the Indebtedness; ICi 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; ID) any right to claim discharge of the Indebtedness on the basis of unjustified
impairment of any collateral for the Indebtedness; IE) any statute of limitations, if at any time any action or suit brought by Lender against
Guarantor is commenced, there is outstanding Indebtedness which is not barred by any applicable statute of limitations; or IF) 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 fug 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.
RIGHT OF SETOFF. To the extent permitted by applicable law, Lender reserves a right of setoff in all Guarantor's accounts with Lender
(whether checking, savings, or some other account). This includes all accounts Guarantor holds jointly with someone also and all accounts
Guarantor may open in the future. However, this does not include any IRA or Keogh accounts, or any trust accounts for which setoff would be
prohibited by law. Guarantor authorizes Lender, to the extent permitted by applicable law, to hold these funds if there is a default, and Lender
may apply the funds in these accounts to pay what Guarantor owes under the terms of this Guaranty.
SUBORDINATION OF BORROWER'S DEBTS TO GUARANTOR. Guarantor agrees that the Indebtedness, 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 insoNsncy 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.
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 shell 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 tender 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:
Amerliments. This Guaranty, together with any Related Documents, constitutes the entire understanding and agreement of the parties as
it?" 'r'^ml7
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COMMERCIAL GUARANTY
(Continued) Page 3
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 demand 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 inckude Lender's
attorneys' fees and legal expenses whether or not there is a lawsuit, including attorneys' fees and legal expenses for bankruptcy
proceedings (incuuding efforts to modify or vacate any automatic stay or injunction), appeals, and any anticipated post-judgment collection
services. Guarantor also shall pay all court costs and such additional fees as may be directed by the court.
Caption Headkigs. 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 tender
in the Commonwealth of Pennaytvanla.
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 Lander's attorneys' fees) 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 shad mean ail 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 liability companies, or similar entities, it is not necessary for Lender to inquire
into the powers of Borrower or Guarantor or of the officers, directors, partners, managers, or other agents acting or purporting to act on
their behalf, and any 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 octuagy delivered, when actually received by telefacsimile (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 and shelf 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 the notice is to change the party's address. For notice purposes, Guarantor
agrees to keep Lender informed at all times of Guarantor's current address. Unless otherwise provided by applicable law, if there is more
than one Guarantor, any notice given by Lender to any Guarantor is deemed to be notice given to all Guarantors.
No Waivar by Lander. Lender shall not be deemed to have waived any rights under this Guaranty unless such waiver is given in writing and
signed by Lender. No delay or omission on the part of tender in exercising any right shall operate as a waiver of such right or any other
right. A waiver by tender of a provision of this Guaranty shelf 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 withhold in
the We discretion of Lender.
Successors and Assigns. The terns of this Guaranty shall be binding upon Guarantor, and upon Guarantor's heirs, personal
representatives, successors, and assigns, and shad be enforceable by Lender and its successors and assigns.
Waive Jury. Lander and Guarantor hereby waive the right to any jury trial in any action, proceeding, or counterclaim brought by either
tender or Borrower against the other.
ERROR AND OMISSIONS. In consideration of the loan made by Sovereign Bank, (hereafter referred to as "Lender" to the undersigned, the
undersigned does hereby represent the promise as follows: Upon request made by the Lender, its successors or assigns, the undersigned will
execute such documents as are reasonable to provide assurance to Lender (1) that the obligations undertaken by the undersigned in connection
with said loin will be faithfully performed; (2) that any and all documents and instruments signed by the undersigned in connection with said
loan are accurate statements as to the truth of the matters set forth in them and constitute binding obligations upon the undersigned according
to their tenor; or (3) as to the amount of said ban outstanding from time to time, and the date and amount of payments made in respect to said
loan. Upon request made by the Lender, its successors or assigns, the undersigned WIN re-execute any document or Instrument signed in
connection with said loan or execute any document or instrument that ought to have been signed at or before closing of said loan, or which was
incorrectly drafted and signed, to facilitate full execution of the appropriate documents. AN such requests shall receive the full cooperation and
compliance by the undersigned within seven (7) days of the making of the request set forth above. The failure of the undersigned to comply
with their obligations hereunder shall constitute a default under the documents executed in connection with said loan and shall entitle Lender or
its successors and assigns, to the remedies aveilable for default under the documents executed by the undersigned.
DEFINITIONS. The following capitalized words and terms shall have the following meanings when used in this Guaranty. Unless specifically
stated to the contrary, ail references to dollar amounts shad mean amounts in lawful money of the United States of America. Words and terms
used in the singular shag 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 Gator Development, LLC and includes all co-signers and co-makers signing the Note and all their
successors and assigns.
GAAP. The word "GAAP" means generally accepted accounting principles,
Guarantor. The word "Guarantor" means everyone signing this Guaranty, including without limitation 401 Market Street Partners, LLC, and
in each case, any signer's successors and assigns.
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&A", i,..awds ,
COMMERCIAL GUARANTY
(Continued) Page 4
Guarenty. The word "Guaranty" means this guaranty from Guarantor to Lender.
Indebtedness. The word "Indebtedness' means Borrower's indebtedness to Lender as more particularly described in this Guaranty.
Lender. The word "Lender" means Sovereign Bank, a Federal Savings Bank, its successors and assigns.
Note. The word "Note" means the original promissory note dated April 13, 2006 in the original principal amount of $40,000.00 from
Borrower to Lender, modified of even date to increase the principal amount of the Note from $40,000.00 to $100,000.00; together with all
renewals of, extensions of, modifications of, refinancings of, consolidations of, and substitutions for the promissory note or agreement.
Related Doc rnants. The words 'Related Documents' mean all promissory notes, credit agreements, loan agreements, environmental
agreements, guaranties, security agreements, mortgages, deeds of trust, security deeds, collateral mortgages, and all other instruments,
agreements and documents, whether now or hereafter existing, executed in connection with the Indebtedness.
CONFESSION OF JUDGMENT. GUARANTOR HEREBY IRREVOCABLY AUTHORIZES AND EMPOWERS ANY ATTORNEY OR THE
PROTHONOTARY OR CLERK OF ANY COURT IN THE COMMONWEALTH OF PENNSYLVANIA, OR ELSEWHERE, TO APPEAR AT ANY TIME
FOR GUARANTOR AFTER THE AMOUNTS HEREUNDER BECOME DUE AND WITH OR WITHOUT COMPLAINT FILED, CONFESS OR ENTER
JUDGMENT AGAINST GUARANTOR FOR THE ENTIRE PRINCIPAL BALANCE OF THIS GUARANTY AND ALL ACCRUED INTEREST, LATE
CHARGES AND ANY AND ALL AMOUNTS EXPENDED OR ADVANCED BY LENDER RELATING TO ANY COLLATERAL SECURING THE
INDEBTEDNESS, TOGETHER WITH COSTS OF SUIT, AND AN ATTORNEYS COMMISSION OF TEN PERCENT 110%) OF THE UNPAID
PRINCIPAL BALANCE AND ACCRUED INTEREST FOR COLLECTION, BUT IN ANY EVENT NOT LESS THAN FIVE HUNDRED DOLLARS ($500)
ON WHICH JUDGMENT OR JUDGMENTS ONE OR MORE EXECUTIONS MAY ISSUE IMMEDIATELY; AND FOR SO DOING, THIS GUARANTY OR
A COPY OF THIS GUARANTY VERIFIED BY AFFIDAVIT SHALL BE SUFFICIENT WARRANT. THE AUTHORITY GRANTED IN THIS GUARANTY
TO CONFESS JUDGMENT AGAINST GUARANTOR SHALL NOT BE EXHAUSTED BY ANY EXERCISE OF THAT AUTHORITY, BUT SHALL
CONTINUE FROM TIME TO TIME AND AT ALL TIMES UNTIL PAYMENT IN FULL OF ALL AMOUNTS DUE UNDER THIS GUARANTY.
GUARANTOR HEREBY WAIVES ANY RIGHT GUARANTOR MAY HAVE TO NOTICE OR TO A HEARING IN CONNECTION WITH ANY SUCH
CONFESSION OF JUDGMENT AND STATES THAT EITHER A REPRESENTATIVE OF LENDER SPECIFICALLY CALLED THIS CONFESSION OF
JUDGMENT PROVISION TO GUARANTOR'S ATTENTION OR GUARANTOR HAS BEEN REPRESENTED BY INDEPENDENT LEGAL COUNSEL.
EACH UNDERSIGINED GUARANTOR ACKNOWLEDGES HAVING FIEAD ALL THE PROVISIONS OF THE GUARANTY AND AGREES TO ITS
TERMS. FN ADDITION, EACH GUARANTOR UNDERSTANDS THAT THIS GUARANTY M EFFECTIVE UPON GUARANTOR'S EXECUTION AND
DELIVERY OF THIS GUARANTY TO LENDER AND THAT THE GUARANTY WILL CONTINUE UNTIL TERMINATED IN THE MANNER SET FORTH
IN THE SECTION TITLED 'DURATION OF GU,?WAN ?1O FORMAL ACCEPTANCE BY LENDER IS NECESSARY TO MAKE THIS GUARANTY
EFFECTIVE. THIS GUARANTY IS DATED `7? o??"?(11n
THIS GUARANTY E GIVEN UNDER SEAL AND IT IS INTENDED THAT THIS GUARANTY IS AND SHALL CONSTITUTE AND HAVE THE EFFECT
OF A SEALED INSTRUMENT ACCORDING TO LAW.
GUARANTOR:
401
LIABILITY COMPANY ACKNOWLEDGMENT
COMMONWEALTH OF PENNSYLVANIA I
)SS
COUNTY OF ---- "Ianj ?
.?_ A... -9 gn hefers ms kA?A^l I-- &A(1,
the undwaigned Notary Public, personally appeared R. Christopher Zampogns, Managing Mardw of
401 Market Street Partners, I.I.C. who acknowledged himself or herself to be the member or designated agent of 401 Market Street Partners,
LLC, a Limited Liability Company, and that he or she as such a member or designated agate, being authorized to do so, executed the foregoing
instrument for the purposes therein contained by signing the name of the Limited Liability Company by himself or herself as a member or
designated agent.
In witness whereof, 1 hereunto set my hand and official seal.
!nL 8urdr, Nmw Public
My
/ Z!?? -?/ d--,1
Notary in and for the State of M
http://columblgaop4/lq/lmageprinter.aspx?P=1&L=0&Scale=90 4/1/2009
DISC' ISURE FOR CONFESSION Or "UDGMENT
Borrower: Gator Development, LLC
1520 Market Street
Camp HiN, PA 17011
Lender: Sovereign Bank, a Federal Savings Bank
MAIL CODE 60-571-CM1
235 N. 2nd Street
Harrisburg, PA 17101
Declarant: 401 Market Street Partners, LLC
1520 Market Street
Camp Hill, PA 17011
DISCLOSURE FOR CONFESSION OF JUDGMENT
THE UNDERSIGNED IS EXECUTING ON BEHALF OF DECLARANT, THIS DAY OF t f U V 20 lN! A
__Rq f GUARANTY OF A PROMISSORY NOTE FOR 8100,000.00 OBLIGATING DECLARANT TO REPAY THAT AM UNT.
A. THE UNDERSIGNED UNDERSTANDS THAT THE GUARANTY CONTAINS A CONFESSION OF JUDGMENT PROVISION THAT WOULD
PERMIT LENDER TO ENTER JUDGMENT AGAINST DECLARANT IN COURT, AFTER A DEFAULT ON THE GUARANTY, WITHOUT ADVANCE
NOTICE TO DECLARANT AND WITHOUT OFFERING DECLARANT AN OPPORTUNITY TO DEFEND AGAINST THE ENTRY OF JUDGMENT. IN
EXECUTING THE GUARANTY, BEING FULLY AWARE OF DECLARANT'S RIGHTS TO ADVANCE NOTICE AND TO A HEARING TO CONTEST
THE VALIDITY OF ANY JUDGMENT OR OTHER CLAIMS THAT LENDER MAY ASSERT AGAINST DECLARANT UNDER THE GUARANTY, THE
UNDERSIGNED, ON BEHALF OF THE DECLARANT, IS KNOWINGLY, INTELLIGENTLY, AND VOLUNTARILY WAIVING THESE RIGHTS,
INCLUDING ANY RIGHT TO ADVANCE NOTICE OF THE ENTRY OF JUDGMENT, AND THE UNDERSIGNED EXPRESSLY AGREES AND
CONSEN ENDER'S ENTERING JUDGMENT AGAINST DECLARANT BY CONFESSION AS PROVIDED FOR IN THE CONFESSION OF
JUDG N.
INITIA
S. DERSIGNED FURTHER UNDERSTANDS THAT IN ADDITION TO GIVING LENDER THE RIGHT TO ENTER JUDGMENT AGAINST
DECLARANT WITHOUT ADVANCE NOTICE OR A HEARING, THE CONFESSION OF JUDGMENT PROVISION IN THE GUARANTY ALSO
CONTAINS LANGUAGE THAT WOULD PERMIT LENDER, AFTER ENTRY OF JUDGMENT, AGAIN WITHOUT EITHER ADVANCE NOTICE OR A
HEARING, TO EXECUTE ON THE JUDGMENT BY FORECLOSING UPON, ATTACHING, LEVYING ON, TAKING POSSESSION OF OR OTHERWISE
SEIZING DECLARANT'S PROPERTY, IN FULL OR PARTIAL PAYMENT OF THE JUDGMENT. IN EXECUTING THE GUARANTY, BEING FULLY
AWARE OF DECLARANT'S RIGHTS TO ADVANCE NOTICE AND A HEARING AFTER JUDGMENT IS ENTERED AND BEFORE EXECUTION ON
THE JUDGMENT, THE UNDERSIGNED, ON BEHALF OF THE DECLARANT, IS KNOWINGLY, INTELLIGENTLY AND VOLUNTARILY WAIVING
THESE RIGHTS, AND THE UNDERSIGNED EXPRESSLY AGREES AND CONSENTS TO LENDER'S IMMEDIATELY EXECUTING ON THE
JUDGMENT I "NY MANNER PERMITTED BY APPLICABLE STATE AND FEDERAL LAW, WITHOUT GIVING DECLARANT ANY ADVANCE
NOTICE.
INITIALS:
C. AFT R VING READ AND DETERMINED WHICH OF THE FOLLOWING STATEMENTS ARE APPLICABLE, BY INITIALING EACH
STATEM THAT APPLIES, THE UNDERSIGNED REPRESENTS THAT:
INITIALS
1. DECLARANT WAS REPRESENTED BY DECLARANT'S OWN INDEPENDENT LEGAL COUNSEL IN CONNECTION WITH THE
GUARANTY.
2. A REPRESENTATIVE OF LENDER SPECIFICALLY CALLED THE CONFESSION OF JUDGMENT PROVISION IN THE GUARANTY
TO DECLARANT'S ATTENTION.
THIS DISCLOSURE IS GIVEN UNDER SEAL AND IT IS INTENDED THAT THIS DISCLOSURE IS AND SHALL CONSTITUTE AND HAVE THE
EFFECT OF A SEALED INSTRUMENT ACCORDING TO LAW.
DECLARANT:
401 M KET PARTNE , /LLC
By-
401 rket Street Par r (LLC
? moo. w.
Fk-.W Yio. tfq. 700. M Mew M?'rN. -PA O: 11141=4 MN
COMMERCIAL GUARANT elhb ?J
Borrower: Gator Development, LLC
1520 Market Street
Camp Hill, PA 17011
Guarantor: Peter J. Russo
4 Shoff Court
Mechanicsburg, PA 17055
Lender: Sovereign Bank
Commercial Banking Division
235 N. 2nd Street
Harrisburg, PA 17101
CONTINUING GUARANTEE OF PAYMENT AND PERFORMANCE. For good and valuable consideration, Guarantor absolutely and unconditionally
guarantees full and punctual payment and satisfaction of the Indebtedness of Borrower to Lender, and the performance and discharge of all
Borrower's obligations under the Note and the Related Documents. This is a guaranty of payment and performance and not of collection, so
Lender can enforce this Guaranty against Guarantor even when Lender has not exhausted Lender's remedies against anyone else obligated to
pay the Indebtedness or against any collateral securing the Indebtedness, this Guaranty or any other guaranty of the Indebtedness. Guarantor
will make any payments to Lender or its order, on demand, in legal tender of the United States of America, in same-day funds, without set-off or
deduction or counterclaim, and will otherwise perform Borrower's obligations under the Note and Related Documents. Under this Guaranty,
Guarantor's liability is unlimited and Guarantor's obligations are continuing.
INDEBTEDNESS. The word "Indebtedness" as used in this Guaranty means all of the principal amount outstanding from time to time and at any
one or more times, accrued unpaid interest thereon and all collection costs and legal expenses related thereto permitted by law, attorneys' fees,
arising from any and all debts, liabilities and obligations of every nature or form, now existing or hereafter arising or acquired, that Borrower
individually or collectively or interchangeably with others, owes or will owe Lender. "Indebtedness" includes, without limitation, loans, advances,
debts, overdraft indebtedness, credit card indebtedness, lease obligations, other obligations, and liabilities of Borrower, and any present or future
judgments against Borrower, future advances,... loans or transactions. that renew, extend, modify, refinance, consolidate or substitute these
debts, liabilities and obligations whether: voluntarily or involuntarily incurred; due or to become due by their terms or acceleration; absolute or
contingent; liquidated or unliquidated; determined or undetermined; direct or indirect; primary or secondary in nature or arising from a guaranty
or surety; secured or unsecured; joint or several or joint and several; evidenced by a negotiable or non-negotiable instrument or writing;
originated by Lender or another or others; barred or unenforceable against Borrower for any reason whatsoever; for any transactions that may
be voidable for any reason (such as infancy, insanity, ultra vires or otherwise); and originated then reduced or extinguished and then afterwards
increased or reinstated.
If Lender presently holds one or more guaranties, or hereafter receives additional guaranties from Guarantor, Lender's rights under all guaranties
shall be cumulative. This Guaranty shall not (unless specifically provided below to the contrary) affect or invalidate any such other guaranties.
Guarantor's liability will be Guarantor's aggregate liability under the terms of this Guaranty and any such other unterminated guaranties.
CONTINUING GUARANTY. THIS IS A "CONTINUING GUARANTY" UNDER WHICH GUARANTOR AGREES TO GUARANTEE THE FULL AND
PUNCTUAL PAYMENT, PERFORMANCE AND SATISFACTION OF THE INDEBTEDNESS OF BORROWER TO LENDER, NOW EXISTING OR
HEREAFTER ARISING OR ACQUIRED, ON AN OPEN AND CONTINUING BASIS. ACCORDINGLY, ANY PAYMENTS MADE ON THE
INDEBTEDNESS WILL NOT DISCHARGE OR DIMINISH GUARANTOR'S OBLIGATIONS AND LIABILITY UNDER THIS GUARANTY FOR ANY
REMAINING AND SUCCEEDING INDEBTEDNESS EVEN WHEN ALL OR PART OF THE OUTSTANDING INDEBTEDNESS MAY BE A ZERO
BALANCE FROM TIME TO TIME.
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 the 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 the 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 the 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 new Indebtedness. This Guaranty shall bind Guarantor's estate as to the 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. It is anticipated that fluctuations may occur in the aggregate amount of the Indebtedness
covered by this Guaranty, and Guarantor specifically acknowledges and agrees that reductions in the amount of the Indebtedness, even to zero
dollars ($0.00), 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 Indebtedness remains unpaid and even though the
Indebtedness may from time to time be zero dollars ($0.00).
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: (A) 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; (G) 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 qualify in any way the terms of this Guaranty; (B) this Guaranty is
executed at Borrower's request and not at the request of Lender; (C) Guarantor has full power, right and authority to enter into this Guaranty;
COMMERCIAL GUARANTY
(Continued)
Page 2
(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, court decree or order applicable to Guarantor; (E) Guarantor has not and will not, without
the prior written consent of Lender, sell, lease, assign, encumber, hypothecate, transfer, or otherwise dispose of all or substantially all of
Guarantor's assets, or any interest therein; (F) upon Lender's request, Guarantor will provide to Lender financial and credit information in form
acceptable to Lender, and all such financial information which currently has been, and all future financial information which will be provided to
Lender is and will be true and correct in all material respects and fairly present Guarantor's financial condition as of the dates the financial
information is provided; (G) no material adverse change has occurred in Guarantor's financial condition since the date of the most recent
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 (J) 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 FINANCIAL STATEMENTS. Guarantor agrees to furnish Lender with the following:
Annual Statements. As soon as available, but in no event later than one-hundred-twenty 0 20) days after the end of each fiscal year,
Guarantor's balance sheet and income statement for the year ended, prepared by Guarantor.
Tax Returns. As soon as available, but in no event later than sixty (60) days after the applicable filing date for the tax reporting period
ended, Federal and other governmental tax returns, prepared by a certified public accountant satisfactory to Lender.
All financial reports required to be provided under this Guaranty shall be prepared in accordance with GAAP, applied on a consistent basis, and
certified by Guarantor as being true and correct.
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; (B) 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; (F) 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-deficiency" 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; (B) any election 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 limitation, any loss of
rights Guarantor may suffer by reason of any law 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 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.
RIGHT OF SETOFF. To the extent permitted by applicable law, Lender reserves a right of setoff in all Guarantor's accounts with Lender
(whether checking, savings, or some other account). This includes all accounts Guarantor holds jointly with someone else and all accounts
Guarantor may open in the future. However, this does not include any IRA or Keogh accounts, or any trust accounts for which setoff would be
prohibited by law. Guarantor authorizes Lender, to the extent permitted by applicable law, to hold these funds if there is a default, and Lender
may apply the funds in these accounts to pay what Guarantor owes under the terms of this Guaranty.
SUBORDINATION OF BORROWER'S DEBTS TO GUARANTOR. Guarantor agrees that the Indebtedness, 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.
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
COMMERCIAL GUARANTY
(Continued)
Page 3
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 demand 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 automatic stay or injunction), appeals, and any anticipated post-judgment collection
services. Guarantor also shall pay all court costs and such additional 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.
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) 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 liability companies, or similar entities, it is not necessary for Lender to inquire
into the powers of Borrower or Guarantor or of the officers, directors, partners, managers, or other agents acting or purporting to act on
their behalf, and any 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 telefacsimile (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 and shall 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 the notice is to change the party's address. For notice purposes, Guarantor
agrees to keep Lender informed at all times of Guarantor's current address. Unless otherwise provided by applicable law, if there is more
than one Guarantor, any notice given by Lender to any Guarantor is deemed to be notice given to all Guarantors.
No Waiver by Lender. Lender shall not be deemed to have waived 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.
Waive Jury. Lender and Guarantor hereby waive the right to any jury trial in any action, proceeding, or counterclaim brought by either
Lender or Borrower against the other.
ERROR AND OMISSIONS. In consideration of the loan made by Sovereign Bank, (hereafter referred to as "Lender" to the undersigned, the
undersigned does hereby represent the promise as follows: Upon request made by the Lender, its successors or assigns, the undersigned will
execute such documents as are reasonable to provide assurance to Lender (1) that the obligations undertaken by the undersigned in connection
with said loan will be faithfully performed; (2) that any and all documents and instruments signed by the undersigned in connection with said
loan are accurate statements as to the truth of the matters set forth in them and constitute binding obligations upon the undersigned according
to their tenor; or (3) as to the amount of said loan outstanding from time to time, and the date and amount of payments made in respect to said
loan. Upon request made by the Lender, its successors or assigns, the undersigned will re-execute any document or instrument signed in
connection with said loan or execute any document or instrument that ought to have been signed at or before closing of said loan, or which was
incorrectly drafted and signed, to facilitate full execution of the appropriate documents. All such requests shall receive the full cooperation and
compliance by the undersigned within seven (7) days of the making of the request set forth above. The failure of the undersigned to comply
with their obligations hereunder shall constitute a default under the documents executed in connection with said loan and shall entitle Lender or
its successors and assigns, to the remedies available for default under the documents executed by the undersigned.
DEFINITIONS. The following capitalized words and terms shall have the following meanings when used in this Guaranty. Unless specifically
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 Gator Development, LLC and includes all co-signers and co-makers signing the Note and all their
successors and assigns.
GAAP. The word "GAAP" means generally accepted accounting principles.
Guarantor. The word "Guarantor" means everyone signing this Guaranty, including without limitation Peter J. Russo, and in each case,
any signer's successors and assigns.
Guaranty. The word "Guaranty" means this guaranty from Guarantor to Lender.
COMMERCIAL GUARANTY
(Continued)
Indebtedness. The word "Indebtedness" means Borrower's indebtedness to Lender as more particularly described in this Guaranty.
Lender. The word "Lender" means Sovereign Bank, its successors and assigns.
Page 4
Note. The word "Note" means and includes without limitation all of Borrower's promissory notes and/or credit agreements evidencing
Borrower's loan obligations in favor of Lender, together with all renewals of, extensions of, modifications of, refinancings of, consolidations
of and substitutions for promissory notes or credit agreements.
Related Documents. The words "Related Documents" mean all promissory notes, credit agreements, loan agreements, environmental
agreements, guaranties, security agreements, mortgages, deeds of trust, security deeds, collateral mortgages, and all other instruments,
agreements and documents, whether now or hereafter existing, executed in connection with the Indebtedness.
CONFESSION OF JUDGMENT. GUARANTOR HEREBY IRREVOCABLY AUTHORIZES AND EMPOWERS ANY ATTORNEY OR THE
PROTHONOTARY OR CLERK OF ANY COURT IN THE COMMONWEALTH OF PENNSYLVANIA, OR ELSEWHERE, TO APPEAR AT ANY TIME
FOR GUARANTOR AFTER THE AMOUNTS HEREUNDER BECOME DUE AND WITH OR WITHOUT COMPLAINT FILED, CONFESS OR ENTER
JUDGMENT AGAINST GUARANTOR FOR THE ENTIRE PRINCIPAL BALANCE OF THIS GUARANTY AND ALL ACCRUED INTEREST, LATE
CHARGES AND ANY AND ALL AMOUNTS EXPENDED OR ADVANCED BY LENDER RELATING TO ANY COLLATERAL SECURING THE
INDEBTEDNESS, TOGETHER WITH COSTS OF SUIT, AND AN ATTORNEY'S COMMISSION OF TEN PERCENT (10%) OF THE UNPAID
PRINCIPAL BALANCE AND ACCRUED INTEREST FOR COLLECTION, BUT IN ANY EVENT NOT LESS THAN FIVE HUNDRED DOLLARS (5500)
ON WHICH JUDGMENT OR JUDGMENTS ONE OR MORE EXECUTIONS MAY ISSUE IMMEDIATELY; AND FOR SO DOING, THIS GUARANTY OR
A COPY OF THIS GUARANTY VERIFIED BY AFFIDAVIT SHALL BE SUFFICIENT WARRANT. THE AUTHORITY GRANTED IN THIS GUARANTY
TO CONFESS JUDGMENT AGAINST GUARANTOR SHALL NOT BE EXHAUSTED BY ANY EXERCISE OF THAT AUTHORITY, BUT SHALL
CONTINUE FROM TIME TO TIME AND AT ALL TIMES UNTIL PAYMENT IN FULL OF ALL AMOUNTS DUE UNDER THIS GUARANTY.
GUARANTOR HEREBY WAIVES ANY RIGHT GUARANTOR MAY HAVE TO NOTICE OR TO A HEARING IN CONNECTION WITH ANY SUCH
CONFESSION OF JUDGMENT AND STATES THAT EITHER A REPRESENTATIVE OF LENDER SPECIFICALLY CALLED THIS CONFESSION OF
JUDGMENT PROVISION TO GUARANTOR'S ATTENTION OR GUARANTOR HAS BEEN REPRESENTED BY INDEPENDENT LEGAL COUNSEL.
EACH UNDERSIGNED GUARANTOR ACKNOWLEDGES HAVING READ ALL THE PROVISIONS OF THIS GUARANTY AND AGREES TO ITS
TERMS. IN ADDITION, EACH GUARANTOR UNDERSTANDS THAT THIS GUARANTY IS EFFECTIVE UPON GUARANTOR'S EXECUTION AND
DELIVERY OF THIS GUARANTY TO LENDER AND THAT THE GUARANTY WILL CONTINUE UNTIL TERMINATED IN THE MANNER SET FORTH
IN THE SECTION TITLED "DURATION OF GUARANTY-- NO FORMAL ACCEPTANCE BY LENDER IS NECESSARY TO MAKE THIS GUARANTY
EFFECTIVE. THIS GUARANTY IS DATED t,`
THIS GUARANTY IS GIVEN UNDER SEAL AND IT IS INTENDED THAT THIS GUARANTY IS AND SHALL CONSTITUTE AND HAVE THE EFFECT
OF A SEALED INSTRUMENT ACCORDING TO LAW.
GUARANTOR:
(Seal)
Peter .Russo
INDIVIDUAL ACKNOWLEDGMENT
COMMONWEALTH OF PENNSY VAN )
I SS
COUNTY OF )
On this, the `--s day of )?, e -\ , 20 o O , before me V, 6MIM
, the undersigns Notary Public, personally appeared Peter J. Russo, known to me (or satisfactorily
proven) to be the person whose name is subscribed to the within instrument, and acknowledged that he or she executed the same for the
purposes therein contained.
In witness whereof, I hereunto set my hand and official seal.
NOWM Sept
Karen L. Bum, Noloy PW*
M9dla *Sbxp Bore. Wn?Omxw
* QoomsIon Explrea NW.24y 9=
? p
Notary Publi 'n and for the State of `
MPAShU"„".N. -IA GADMUMOMOMFl0111E O C MISM NW
DISCLC JRE FOR CONFESSION OF DGMENT
Borrower: Gator Development, LLC
1520 Market Street
Camp Will, PA 17011
Lender: Sovereign Bank
Commercial Banking Division
235 N. 2nd Street
Harrisburg, PA 17101
Declarant: Peter J. Russo
4 Shoff Court
Mechanicsburg, PA 17055
DISCLOSURE FOR CONFESSION OF JUDGMENT
I AM EXECUTING, THIS DAY OF .200% , A GUARANTY OF A PROMISSORY NOTE FOR
$40,000.00 OBLIGATING ME TO REPAY THAT AMOU T:
A. I UNDERSTAND THAT THE GUARANTY CONTAINS A CONFESSION OF JUDGMENT PROVISION THAT WOULD PERMIT LENDER TO ENTER
JUDGMENT AGAINST ME IN COURT, AFTER A DEFAULT ON THE GUARANTY, WITHOUT ADVANCE NOTICE TO ME AND WITHOUT
OFFERING ME AN OPPORTUNITY TO DEFEND AGAINST THE ENTRY OF JUDGMENT. IN EXECUTING THE GUARANTY, BEING FULLY AWARE
OF MY RIGHTS TO ADVANCE NOTICE AND TO A HEARING TO CONTEST THE VALIDITY OF ANY JUDGMENT OR OTHER CLAIMS THAT
LENDER MAY ASSERT AGAINST ME UNDER THE GUARANTY, I AM KNOWINGLY, INTELLIGENTLY, AND VOLUNTARILY WAIVING THESE
RIGHTS, INCLUDING ANY RIGHT TO ADVANCE- NOTICE- OF-THE-ENTRY OF JUDGMENT, AND I EXPRESSLY AGREE AND CONSENT TO
LENDER'S ENTERING JUDGMENT AGAINST ME BY CONFESSION AS PROVIDED FOR IN THE CONFESSION OF JUDGMENT PROVISION.
INITIALS. 4
B. I FURTHER UNDERSTAND THAT IN ADDITION TO GIVING LENDER THE RIGHT TO ENTER JUDGMENT AGAINST ME WITHOUT ADVANCE
NOTICE OR A HEARING, THE CONFESSION OF JUDGMENT PROVISION IN THE GUARANTY ALSO CONTAINS LANGUAGE THAT WOULD
PERMIT LENDER, AFTER ENTRY OF JUDGMENT, AGAIN WITHOUT EITHER ADVANCE NOTICE OR A HEARING, TO EXECUTE ON THE
JUDGMENT BY FORECLOSING UPON, ATTACHING, LEVYING ON, TAKING POSSESSION OF OR OTHERWISE SEIZING MY PROPERTY, IN FULL
OR PARTIAL PAYMENT OF THE JUDGMENT. IN EXECUTING THE GUARANTY, BEING FULLY AWARE OF MY RIGHTS TO ADVANCE NOTICE
AND A HEARING AFTER JUDGMENT IS ENTERED AND BEFORE EXECUTION ON THE JUDGMENT, 1 AM KNOWINGLY, INTELLIGENTLY AND
VOLUNTARILY WAIVING THESE RIGHTS, AND I EXPRESSLY AGREE AND CONSENT TO LENDER'S IMMEDIATELY EXECUTING ON THE
JUDGMENT IN A MANNER PERMITTED BY APPLICABLE STATE AND FEDERAL LAW, WITHOUT GIVING ME ANY ADVANCE NOTICE.
INITIALS: =
C. AFTER HAVING READ AND DETERMINED WHICH OF THE FOLLOWING STATEMENTS ARE APPLICABLE, BY INITIALING EACH
STATEMENT THAT APPLIES, I REPRESENT THAT:
INITIALS
1. i WAS REPRESENTED BY MY OWN INDEPENDENT LEGAL COUNSEL IN CONNECTION WITH THE GUARANTY.
2. A REPRESENTATIVE OF LENDER SPECIFICALLY CALLED THE CONFESSION OF JUDGMENT PROVISION IN THE GUARANTY
TO MY ATTENTION.
D. I CERTIFY THAT MY ANNUAL INCOME EXCEEDS $10,000; THAT THE BLANKS IN THIS DISCLOSURE WERE FILLED IN WHEN 1 INITIALED
AND SIGNED IT; AND THAT I RECEIVED A COPY AT THE TIME OF SIGNING.
THIS DISCLOSURE IS GIVEN UNDER SEAL AND IT IS INTENDED THAT THIS DISCLOSURE IS AND SHALL CONSTITUTE AND HAVE THE
EFFECT OF A SEALED INSTRUMENT ACCORDING TO LAW.
<DE
(Seal)
Peter J.
4 LASER MO W WNy. V.. 6.30.00.004 Cw. NrW R?unai,l Eo1uNw?w Mro. 1997. 2W6. M NWO %__d. - ?A 6:I000UM111101Ciglll1071FC Tb11JM MI-0
COMMERCIAL GUARANT`
Borrower: Gator Development, LLC
1520 Market Street
Camp Hill, PA 17011
Guarantor: R. Christopher zampogna
5 Saratoga Place
Camp Kill, PA 17011
Lender: Sovereign Bank
Commercial Banking Division
235 N. 2nd Street
Harrisburg, PA 17101
CONTINUING GUARANTEE OF PAYMENT AND PERFORMANCE. For good and valuable consideration, Guarantor absolutely and unconditionally
guarantees full and punctual payment and satisfaction of the Indebtedness of Borrower to Lender, and the performance and discharge of all
Borrower's obligations under the Note and the Related Documents. This is a guaranty of payment and performance and not of collection, so
Lender can enforce this Guaranty against Guarantor even when Lender has not exhausted Lender's remedies against anyone else obligated to
pay the Indebtedness or against any collateral securing the Indebtedness, this Guaranty or any other guaranty of the Indebtedness. Guarantor
will make any payments to Lender or its order, on demand, in legal tender of the United States of America, in same-day funds, without set-off or
deduction or counterclaim, and will otherwise perform Borrower's obligations under the Note and Related Documents. Under this Guaranty,
Guarantor's liability is unlimited and Guarantor's obligations are continuing.
INDEBTEDNESS. The word "Indebtedness" as used in this Guaranty means all of the principal amount outstanding from time to time and at any
one or more times, accrued unpaid interest thereon and all collection costs and legal expenses related thereto permitted by law, attorneys' fees,
arising from any and all debts, liabilities and obligations of every nature or form, now existing or hereafter arising or acquired, that Borrower
individually or collectively or interchangeably with others, owes or will owe Lender. "Indebtedness" includes, without limitation, loans, advances,
debts, overdraft indebtedness, credit card indebtedness, lease obligations, other obligations, and liabilities of Borrower, and any present or future
judgments against .Borrower, future advances, loans _or transactions that renew, extend, modify, refinance, consolidate or substitute these
debts, liabilities and obligations whether: voluntarily or involuntarily incurred; due or to become due by their terms or acceleration; absolute or
contingent; liquidated or unliquidated; determined or undetermined; direct or indirect; primary or secondary in nature or arising from a guaranty
or surety; secured or unsecured; joint or several or joint and several; evidenced by a negotiable or non-negotiable instrument or writing;
originated by Lender or another or others; barred or unenforceable against Borrower for any reason whatsoever; for any transactions that may
be voidable for any reason (such as infancy, insanity, ultra vires or otherwise); and originated then reduced or extinguished and then afterwards
increased or reinstated.
If Lender presently holds one or more guaranties, or hereafter receives additional guaranties from Guarantor, Lender's rights under all guaranties
shall be cumulative. This Guaranty shall not (unless specifically provided below to the contrary) affect or invalidate any such other guaranties.
Guarantor's liability will be Guarantor's aggregate liability under the terms of this Guaranty and any such other unterminated guaranties.
CONTINUING GUARANTY. THIS IS A "CONTINUING GUARANTY" UNDER WHICH GUARANTOR AGREES TO GUARANTEE THE FULL AND
PUNCTUAL PAYMENT, PERFORMANCE AND SATISFACTION OF THE INDEBTEDNESS OF BORROWER TO LENDER, NOW EXISTING OR
HEREAFTER ARISING OR ACQUIRED, ON AN OPEN AND CONTINUING BASIS. ACCORDINGLY, ANY PAYMENTS MADE ON THE
INDEBTEDNESS WILL NOT DISCHARGE OR DIMINISH GUARANTOR'S OBLIGATIONS AND LIABILITY UNDER THIS GUARANTY FOR ANY
REMAINING AND SUCCEEDING INDEBTEDNESS EVEN WHEN ALL OR PART OF THE OUTSTANDING INDEBTEDNESS MAY BE A ZERO
BALANCE FROM TIME TO TIME.
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 the 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 the 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 the 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 new Indebtedness. This Guaranty shall bind Guarantor's estate as to the 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. It is anticipated that fluctuations may occur in the aggregate amount of the Indebtedness
covered by this Guaranty, and Guarantor specifically acknowledges and agrees that reductions in the amount of the Indebtedness, even to zero
dollars ($0.00), 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 Indebtedness remains unpaid and even though the
Indebtedness may from time to time be zero dollars (50.00).
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: IA) 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 after, 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; (G) 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 qualify in any way the terms of this Guaranty; (B) this Guaranty is
executed at Borrower's request and not at the request of Lender; (C) Guarantor has full power, right and authority to enter into this Guaranty;
COMMERCIAL GUARANTY
,
(Continued) page 2
(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, court decree or order applicable to Guarantor; (E) Guarantor has not and will not, without
the prior written consent of Lender, sell, lease, assign, encumber, hypothecate, transfer, or otherwise dispose of all or substantially all of
Guarantor's assets, or any interest therein; (F) upon Lender's request, Guarantor will provide to Lender financial and credit information in form
acceptable to Lender, and all such financial Information which currently has been, and all future financial information which will be provided to
Lender is and will be true and correct in all material respects and fairly present Guarantor's financial condition as of the dates the financial
information is provided; (G) no material adverse change has occurred in Guarantor's financial condition since the date of the most recent
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 (J) 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 FINANCIAL STATEMENTS. Guarantor agrees to furnish Lender with the following:
Annual Statements. As soon as available, but in no event later than one-hundred-twenty 0 20) days after the end of each fiscal year,
Guarantor's balance sheet and income statement for the year ended, prepared by Guarantor.
Tax Returns. As soon as available, but in no event later than sixty (60) days after the applicable filing date for the tax reporting period
ended, Federal and other governmental tax returns, prepared by a certified public accountant satisfactory to Lender.
All financial reports required to be provided under this Guaranty shall be prepared in accordance with GAAP, applied on a consistent basis, and
certified by Guarantor as being true and correct.
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; (B) 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; (F) 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-deficiency" 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; (B) any election 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 limitation, any loss of
rights Guarantor may suffer by reason of any law 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 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.
RIGHT OF SETOFF. To the extent permitted by applicable law, Lender reserves a right of setoff in all Guarantor's accounts with Lender
(whether checking, savings, or some other account). This includes all accounts Guarantor holds jointly with someone else and all accounts
Guarantor may open in the future. However, this does not include any IRA or Keogh accounts, or any trust accounts for which setoff would be
prohibited by law. Guarantor authorizes Lender, to the extent permitted by applicable law, to hold these funds if there is a default, and Lender
may apply the funds in these accounts to pay what Guarantor owes under the terms of this Guaranty.
SUBORDINATION OF BORROWER'S DEBTS TO GUARANTOR. Guarantor agrees that the Indebtedness, 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..
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
COMMERCIAL GUARANTY
(Continued)
Page 3
signed by the parry or parties sought to be charged or bound by the alteration or amendment.
Attorneys' Fees; Expenses. Guarantor agrees to pay upon demand 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 automatic stay or injunction), appeals, and any anticipated post judgment collection
services. Guarantor also shall pay all court costs and such additional 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 ggvemed 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.
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) 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 shalt 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 liability companies, or similar entities, it is not necessary for Lender to inquire
into the powers of Borrower or Guarantor or of the officers, directors, partners, managers, or other agents acting or purporting to act on
their behalf, and any 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 telefacsimile (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 and shall 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 the notice is to change the party's address. For notice purposes, Guarantor
agrees to keep Lender informed at all times of Guarantor's current address. Unless otherwise provided by applicable law, if there is more
than one Guarantor, any notice given by Lender to any Guarantor is deemed to be notice given to all Guarantors.
No Waiver by Lender. Lender shall not be deemed to have waived 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.
Waive Jury. Lender and Guarantor hereby waive the right to any jury trial in any action, proceeding, or counterclaim brought by either
Lender or Borrower against the other.
ERROR AND OMISSIONS. In consideration of the loan made by Sovereign Bank, (hereafter referred to as "Lender" to the undersigned, the
undersigned does hereby represent the promise as follows:. Upon request made by the Lender, its successors or assigns, the undersigned will
execute such documents as are reasonable to provide assurance to Lender (1) that the obligations undertaken by the undersigned in connection
with said loan will be faithfully performed; (2) that any and all documents and instruments signed by the undersigned in connection with said
loan are accurate statements as to the truth of the matters set forth in them and constitute binding obligations upon the undersigned according
to their tenor; or (3) as to the amount of said loan outstanding from time to time, and the date and amount of payments made in respect to said
loan. Upon request made by the Lender, its successors or assigns, the undersigned will re-execute any document or instrument signed in
connection with said loan or execute any document or instrument that ought to have been signed at or before closing of said loan, or which was
incorrectly drafted and signed, to facilitate full execution of the appropriate documents. All such requests shall receive the full cooperation and
compliance by the undersigned within seven (7) days of the making of the request set forth above. The failure of the undersigned to comply
with their obligations hereunder shall constitute a default under the documents executed in connection with said loan and shall entitle Lender or
its successors and assigns, to the remedies available for default under the documents executed by the undersigned.
DEFINITIONS. The following capitalized words and terms shall have the following meanings when used in this Guaranty. Unless specifically
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 Gator Development, LLC and includes all co-signers and co-makers signing the Note and all their
successors and assigns.
GAAP. The word "GAAP" means generally accepted accounting principles.
Guarantor. The word "Guarantor" means everyone signing this Guaranty, including without limitation R. Christopher Zampogna, and in
each case, any signer's successors and assigns.
Guaranty. The word "Guaranty" means this guaranty from Guarantor to Lender.
COMMERCIAL GUARANTY
(Continued)
Page
Indebtedness. The word "Indebtedness" means Borrower's indebtedness to Lender as more particularly described in this Guaranty.
Lender. The word "Lender" means Sovereign Bank, its successors and assigns.
Note. The word "Note" means and includes without limitation all of Borrower's promissory notes and/or credit agreements evidencing
Borrower's loan obligations in favor of Lender, together with all renewals of, extensions of, modifications of, refinancings of, consolidations
of and substitutions for promissory notes or credit agreements.
Related Documents. The words "Related Documents" mean all promissory notes, credit agreements, loan agreements, environmental
agreements, guaranties, security agreements, mortgages, deeds of trust, security deeds, collateral mortgages, and all other instruments,
agreements and documents, whether now or hereafter existing, executed in connection with the Indebtedness.
CONFESSION OF JUDGMENT. GUARANTOR HEREBY IRREVOCABLY AUTHORIZES AND EMPOWERS ANY ATTORNEY OR THE
PROTHONOTARY OR CLERK OF ANY COURT IN THE COMMONWEALTH OF PENNSYLVANIA, OR ELSEWHERE, TO APPEAR AT ANY TIME
FOR GUARANTOR AFTER THE AMOUNTS HEREUNDER BECOME DUE AND WITH OR WITHOUT COMPLAINT FILED, CONFESS OR ENTER
JUDGMENT AGAINST GUARANTOR FOR THE ENTIRE PRINCIPAL BALANCE OF THIS GUARANTY AND ALL ACCRUED INTEREST, LATE
CHARGES AND ANY AND ALL AMOUNTS EXPENDED OR ADVANCED BY LENDER RELATING TO ANY COLLATERAL SECURING THE
INDEBTEDNESS, TOGETHER WITH COSTS OF SUIT, AND AN ATTORNEY'S COMMISSION OF TEN PERCENT 110%) OF THE UNPAID
PRINCIPAL BALANCE AND ACCRUED INTEREST FOR COLLECTION, BUT IN ANY EVENT NOT LESS THAN FIVE HUNDRED DOLLARS (8500)
ON WHICH JUDGMENT OR JUDGMENTS ONE OR MORE EXECUTIONS MAY ISSUE IMMEDIATELY; AND FOR SO DOING, THIS GUARANTY OR
A COPY OF THIS GUARANTY VERIFIED BY AFFIDAVIT SHALL BE SUFFICIENT WARRANT. THE AUTHORITY GRANTED IN THIS GUARANTY
TO CONFESS JUDGMENT AGAINST GUARANTOR SHALL NOT BE EXHAUSTED BY ANY EXERCISE OF THAT AUTHORITY, BUT SHALL
CONTINUE FROM TIME TO TIME AND AT ALL TIMES UNTIL PAYMENT IN FULL OF ALL AMOUNTS DUE UNDER THIS GUARANTY.
GUARANTOR HEREBY WAIVES ANY RIGHT GUARANTOR MAY HAVE TO NOTICE OR TO A HEARING IN CONNECTION WITH ANY SUCH
CONFESSION OF JUDGMENT AND STATES THAT EITHER A REPRESENTATIVE OF LENDER SPECIFICALLY CALLED THIS CONFESSION OF
JUDGMENT PROVISION TO GUARANTOR'S ATTENTION OR GUARANTOR- HAS BEEN -REPRESENTED "BY INDEPENDENT LEGAL COUNSEL.
EACH UNDERSIGNED GUARANTOR ACKNOWLEDGES HAVING READ ALL THE PROVISIONS OF THIS GUARANTY AND AGREES TO ITS
TERMS. IN ADDITION, EACH GUARANTOR UNDERSTANDS THAT THIS GUARANTY IS EFFECTIVE UPON GUARANTOR'S EXECUTION AND
DELIVERY OF THIS GUARANTY TO LENDER AND THAT THE GUARANTY WILL CONTINUE UNTIL TERMINATED IN THE MANNER SET FORTH
IN THE SECTION TITLED "DURATION OF. UARANTY% NO FORMAL ACCEPTANCE BY LENDER IS NECESSARY TO MAKE THIS GUARANTY
EFFECTIVE. THIS GUARANTY IS DATED_ THIS GUARANTY IS GIVEN U L AND IT IS INTENDED THAT THIS GUARANTY IS AND SHALL CONSTITUTE AND HAVE THE EFFECT
OF A SEALED INS ACCOR G TO LAW.
(Seal)
INDIVIDUAL ACKNOWLEDGMENT
COMMONWEALTH OF PENNSYLVANIA )
) SS
COUNTY OF )
On this, the ` day of K b I & 20 y before me ? ? 1-?CN ?-- 0*
the undersigned tary Public, personally appeared R. Christopher 2ampogna, known to me (or
satisfactorily proven) to be the person whose name is subscribed to the within instrument, and acknowledged that he or she executed the same
for the purposes therein contained.
In witness whereof, 1 hereunto set my hand and official seal.
COMMMWEALTH OF PEN YLVANIA
SAaf Notary Public in and for the State of
Karen L. Sulch, Nplary Pubb
MedWOM&M Bono, Ca r barlsw Courrty
My emnk" Expires Nov. 24,2W9
LASER PRO W?nP, Vr. 5.30.00.pW CRRr. 11"6n! fi"ndY BoWtlsnt, Rrc. 1lR7, mob. AMINO 6-d.
O:%D000"1IR0\CqtK%9m."C TR•/tms M-6
DISCO ,JRE FOR CONFESSION OF . OGMENT
Borrower: Gator Development, LLC
1520 Market Street
Camp Hill, PA 17011
Lender: Sovereign Bank
Commercial Banking Division
235 N. 2nd Street
Harrisburg, PA 17101
Declarant: R. Christopher Zampogna
5 Saratoga Place
Camp Hill, PA 17011
DISCLOSURE FOR CONFESSION OF JUDGMENT
1 AM EXECUTING, THIS DAY OF , , 200, A GUARANTY OF A PROMISSORY NOTE FOR
$40,000.00 OBLIGATING ME TO REPAY THAT AMOU T.
A. I UNDERSTAND THAT THE GUARANTY CONTAINS A CONFESSION OF JUDGMENT PROVISION THAT WOULD PERMIT LENDER TO ENTER
JUDGMENT AGAINST ME IN COURT, AFTER A DEFAULT ON THE GUARANTY, WITHOUT ADVANCE NOTICE TO ME AND WITHOUT
OFFERING ME AN OPPORTUNITY TO DEFEND AGAINST THE ENTRY OF JUDGMENT. IN EXECUTING THE GUARANTY, BEING FULLY AWARE
OF MY RIGHTS TO ADVANCE NOTICE AND TO A HEARING TO CONTEST THE VALIDITY OF ANY JUDGMENT OR OTHER CLAIMS THAT
LENDER MAY ASSERT AGAINST ME UNDER THE GUARANTY, i AM KNOWINGLY, INTELLIGENTLY, AND VOLUNTARILY WAIVING THESE
RIGHTS, INY RIGHT TO-ADVANCE-NOTICE-OF THE--ENTRY--OF JUDGMENT, AND-I-EXPRESSLY AGREE-AND-CONSENT TO
LENDER'S AGAINST ME BY CONFESSION AS PROVIDED FOR IN THE CONFESSION OF JUDGMENT PROVISION.
INITIALS:
B. I FURTHER ND THAT IN ADDITION TO GIVING LENDER THE RIGHT TO ENTER JUDGMENT AGAINST ME WITHOUT ADVANCE
NOTICE OR A HEARING, THE CONFESSION OF JUDGMENT PROVISION IN THE GUARANTY ALSO CONTAINS LANGUAGE THAT WOULD
PERMIT LENDER, AFTER ENTRY OF JUDGMENT, AGAIN WITHOUT EITHER ADVANCE NOTICE OR A HEARING, TO EXECUTE ON THE
JUDGMENT BY FORECLOSING UPON, ATTACHING, LEVYING ON, TAKING POSSESSION OF OR OTHERWISE SEIZING MY PROPERTY, IN FULL
OR PARTIAL PAYMENT OF THE JUDGMENT. IN EXECUTING THE GUARANTY, BEING FULLY AWARE OF MY RIGHTS TO ADVANCE NOTICE
AND A HEARING AFTER JUDGMENT IS ENTERED AND BEFORE EXECUTION ON THE JUDGMENT, 1 AM KNOWINGLY, INTELLIGENTLY AND
VOLUNTARILY WAIVING THESE RIGHTS, AND 1 EXPRESSLY AGREE AND CONSENT TO LENDER'S IMMEDIATELY EXECUTING ON THE
JUDGMENT IN A M ER PERMITTED BY APPLICABLE STATE AND FEDERAL LAW, WITHOUT GIVING ME ANY ADVANCE NOTICE.
INITIALS:
C. AFTER HAVING READ AND DETERMINED WHICH OF THE FOLLOWING STATEMENTS ARE APPLICABLE, BY INITIALING EACH
STATEMENT THAT APPLIES, I REPRESENT THAT:
INITI
1. I WAS REPRESENTED BY MY OWN INDEPENDENT LEGAL COUNSEL IN CONNECTION WITH THE GUARANTY.
2. A REPRESENTATIVE OF LENDER SPECIFICALLY CALLED THE CONFESSION OF JUDGMENT PROVISION IN THE GUARANTY
TO MY ATTENTION.
D. I CERTIFY THAT MY ANNUAL INCOME EXCEEDS $10,000; THAT THE BLANKS IN THIS DISCLOSURE WERE FILLED IN WHEN I INITIALED
AND SIGNED IT; AND THAT I RECEIVED A COPY AT THE TIME OF SIGNING.
THIS DISCLOSURE IS GIVEN UNDER SEAL AND IT IS INTENDED THAT THIS DISCLOSURE IS AND SHALL CONSTITUTE AND HAVE THE
LASER PRO Lr dk f• V- 0.70.00.004 CW. Hwj. R WWW SeWMS. I . 1981. 100{. N
Rly.q RnavM. • PA 0:1000Wy/110%PRL1L'p70.PC 71411704 PIFf
IN THE COURT OF COMMON PLEAS
OF CUMBERLAND COUNTY, PENNSYLVANIA
SOVEREIGN BANK
Plaintiff
VS.
GATOR DEVELOPMENT, LLC,
401 MARKET STREET PARTNERS, LLC,:
PETER J. RUSSO, an adult individual, and
R. CHRISTOPHER ZAMPOGNA,
an adult individual,
CIVIL ACTION
No.
Defendants Confession of Judgment
Commonwealth of Pennsylvania
County of Delaware
AFFIDAVIT OF NON-MILITARY SERVICE
Before me, a Notary Public for Delaware County, Pennsylvania, personally
appeared Forrest T. Passerin, Esquire, Attorney for the Plaintiff in the above entitled
case, who being duly sworn or affirmed according to law deposes and says, that the
Defendant Gator Development, LLC, is not in the military service of the United States of
America, that he has personal knowledge that the said Defendant's last-known address is
1520 Market Street, Camp Hill, Pennsylvania 17011.
Sworn and aijbscribed before
me this day of September,
20099
otary Public
My Commission expires:
GN w
777
orrest T. Passerin, Esquire,
As Attorney for Plaintiff
20-536-ARO
2 Aldwyn Lane
Villanova PA 19085-1420
I.D. No. 85987
COMMONWEALTH OF PENNSYLVANIA
Notarial Sea]
Jennifer Devine, Notary Public
Radnor Twp., Delaware County
My Commission Expires Feb. 16, 2011
Member, Pennsylvania Association of Notaries
IN THE COURT OF COMMON PLEAS
OF CUMBERLAND COUNTY, PENNSYLVANIA
SOVEREIGN BANK
VS.
Plaintiff
GATOR DEVELOPMENT, LLC,
401 MARKET STREET PARTNERS, LLC,:
PETER J. RUSSO, an adult individual, and
R. CHRISTOPHER ZAMPOGNA,
an adult individual,
CIVIL ACTION
No.
Defendants Confession of Judgment
Commonwealth of Pennsylvania
County of Delaware
AFFIDAVIT OF NON-MILITARY SERVICE
Before me, a Notary Public for Delaware County, Pennsylvania, personally
appeared Forrest T. Passerin, Esquire, Attorney for the Plaintiff in the above entitled
case, who being duly sworn or affirmed according to law deposes and says, that the
Defendant 401 Market Street Partners, LLC, is not in the military service of the United
States of America, that he has personal knowledge that the said Defendant's last-known
address is 1520 Market Street, Camp Hill, Pennsylvania 17011.
Sworn and kubscribed before
me this5O' day o ,
2009
N ary Public
My Commission expires:
COMMONWEALTH OF PENNSYLVANIA
Notarial Seal
Jennder Devine, Notary Public
Radnor Twp., Delaware County
My Commission E)ires Feb. 16, 2011
Member, Pennsylvania Assoriailon of Notaries
i
SOVE GN B
Foss T. Passerim, Esquire,
As Attorney for Plaintiff
20-536-ARO
2 Aldwyn Lane
Villanova PA 19085-1420
I.D. No. 85987
IN THE COURT OF COMMON PLEAS
OF CUMBERLAND COUNTY, PENNSYLVANIA
SOVEREIGN BANK
Plaintiff
vs.
GATOR DEVELOPMENT, LLC,
401 MARKET STREET PARTNERS, LLC,:
PETER J. RUSSO, an adult individual, and
R. CHRISTOPHER ZAMPOGNA,
an adult individual,
CIVIL ACTION
No.
Defendants Confession of Judgment
Commonwealth of Pennsylvania
County of Delaware
AFFIDAVIT OF NON-MILITARY SERVICE
Before me, a Notary Public for Delaware County, Pennsylvania, personally
appeared Forrest T. Passerin, Esquire, Attorney for the Plaintiff in the above entitled
case, who being duly sworn or affirmed according to law deposes and says, that the
Defendant Peter J. Russo is not in the military service of the United States of America,
that he has personal knowledge that the said Defendant's last-known address is 4 Shoff
Court, Mechanicsburg, Pennsylvania 17055.
Sworn and,,ubscribed before
me this-3".
his-3" _ day of September,
2009
ary Public
My Commission expires:
COMMONWEALTH OF PENNSYLVANIA
Notarial Seal
Lmy ennifer Devine, Notary Public
adnor Twp., Delaware County
om mission Expires Feb. 16, 2011
Member, Pennsylvania Association of Notaries
q ,
As Attorney for Plaintiff
20-536-ARO
2 Aldwyn Lane
Villanova PA 19085-1420
I.D. No. 85987
SOVEREIGN BAN
4
orrest T. Passerin Es uire
IN THE COURT OF COMMON PLEAS
OF CUMBERLAND COUNTY, PENNSYLVANIA
SOVEREIGN BANK
CIVIL ACTION
Plaintiff
vs.
No.
GATOR DEVELOPMENT, LLC,
401 MARKET STREET PARTNERS, LLC,:
PETER J. RUSSO, an adult individual, and
R. CHRISTOPHER ZAMPOGNA,
an adult individual,
Defendants Confession of Judgment
Commonwealth of Pennsylvania
County of Delaware
AFFIDAVIT OF NON-MILITARY SERVICE
Before me, a Notary Public for Delaware County, Pennsylvania, personally
appeared Forrest T. Passerin, Esquire, Attorney for the Plaintiff in the above entitled
case, who being duly sworn or affirmed according to law deposes and says, that the
Defendant R. Christopher Zampogna is not in the military service of the United States of
America, that he has personal knowledge that the said Defendant's last-known address is
5 Saratoga Place, Camp Hill, Pennsylvania 17011.
Sworn andiubscribed before
me this S ° day of September,
2009
otary Public
My Commission expires:
Qorrest REIGN K
. Passerin, Esquire,
As Attorney for Plaintiff
20-536-ARO
2 Aldwyn Lane
Villanova PA 19085-1420
I.D. No. 85987
COMMONWEALTH OF PENNSYLVANIA
Notarial Seal
Jennifer Devine, Notary Public
Radnor Twp., Delaware County
My Commission Expires Feb. 16, 2011
Member, Pennsylvania Association of Notaries
a
Dated: September 30, 2009 By:
Forrest T. Passerin, Esquire
As Attorney for Defendants
20-536-ARO
2 Aldwyn Lane
Villanova PA 19085-1420
Phone: 610-526-6358
I.D. No. 85987
IN THE COURT OF COMMON PLEAS
OF CUMBERLAND COUNTY, PENNSYLVANIA
SOVEREIGN BANK
CIVIL ACTION
Plaintiff
vs.
No.
GATOR DEVELOPMENT, LLC,
401 MARKET STREET PARTNERS, LLC,:
PETER J. RUSSO, an adult individual, and
R. CHRISTOPHER ZAMPOGNA,
an adult individual,
Defendants Confession of Judgment
Commonwealth of Pennsylvania
County of ?%U Pk c n
AFFIDAVIT OF DEFAULT AND BUSINESS TRANSACTION
James Pesavento, being duly sworn according to law, deposes says he is Vice
President for Sovereign Bank, Plaintiff, herein; that he is authorized to make this affidavit
on plaintiffs behalf, that a true and correct copy of the note and guaranties containing the
warrant of attorney upon which judgment is confessed are attached to the Complaint filed
in this action as Exhibits "A", "C", "D" and "E" that the note and guaranties constitute
business transactions between plaintiff and defendants; that judgment is not being
confessed against individual persons in connection with a consumer credit transaction;
and that Defendants are in default under the note and guaranties for the reasons set forth
in the Complaint.
Sworn a d subscribed before SOVEREIGN BANK -
me this7?day of ,
2009 °?>?'? B
a esavento
Vice Pre ' ent
Notary Public
My Commission Expires
-(, -c ?-,P '.? (o r 9 OI O
COMMONWEALTH OF PENNSYLVANIA
Notarial Seal
Debra A. Sunday, Notary Public
City Of Harrisburg, Dauphin County
My Commission Eacpires 1-926,2010
Member, Pennsylvania Association of Notaries
IN THE COURT OF COMMON PLEAS
OF CUMBERLAND COUNTY, PENNSYLVANIA
SOVEREIGN BANK CIVIL ACTION
Plaintiff
VS. No.
GATOR DEVELOPMENT, LLC,
401 MARKET STREET PARTNERS, LLC, :
PETER J. RUSSO, an adult individual, and :
R. CHRISTOPHER ZAMPOGNA,
an adult individual, .
Defendants Confession of Judement
NOTICE UNDER RULE 2958.1 OF
JUDGMENT AND EXECUTION THEREON
NOTICE OF DEFENDANT'S RIGHTS
TO: Gator Development, LLC
1520 Market Street
Camp Hill, Pennsylvania 17011
A judgment in the amount of $167,536.43 plus per diem interest of $30.20833 from
October 1, 2009, until paid in full, including post-judgment per contract, plus costs of suit
has been entered against you and in favor of the Plaintiff without any prior notice or
hearing based on a confession of judgment contained in a written agreement or other paper
allegedly signed by you. The sheriff may take your money or other property to pay the
judgment at any time after thirty (30) days after the date on which this notice is served on
you.
You may have legal rights to defeat the judgment or to prevent your money or
property from being taken. YOU MUST FILE A PETITION TO STRIKE OR OPEN
JUDGMENT THEREBY SEEKING RELIEF FROM THE JUDGMENT STATING ALL
GROUNDS FOR RELIEF IN A SINGLE PETITION 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 AND CANNOT AFFORD ONE, GO TO OR TELEPHONE
THE OFFICE SET FORTH BELOW TO FIND OUT WHERE YOU CAN GET LEGAL
HELP.
Pennsylvania Lawyer Referral Service
Pennsylvania Bar Association
P.O.Box 186
Harrisburg, PA 17108 I
1-800-692-7375
Dated: September 30, 2009 By:
Forre9f T. Passerin, Esquire
As Attorney for Defendants
2 Aldwyn Lane, 20-536-ARO
Villanova PA 19085-1420
Phone: 610-526-6358
I.D. No. 85987
IN THE COURT OF COMMON PLEAS
OF CUMBERLAND COUNTY, PENNSYLVANIA
SOVEREIGN BANK CIVIL ACTION
VS.
Plaintiff
No.
GATOR DEVELOPMENT, LLC,
401 MARKET STREET PARTNERS, LLC, :
PETER J. RUSSO, an adult individual, and :
R. CHRISTOPHER ZAMPOGNA,
an adult individual,
Defendants Confession of Judement
NOTICE UNDER RULE 2958.1 OF
JUDGMENT AND EXECUTION THEREON
NOTICE OF DEFENDANT'S RIGHTS
TO: 401 Market Street Partners, LLC
1520 Market Street
Camp Hill, Pennsylvania 17011
A judgment in the amount of $167,536.43 plus per diem interest of $30.20833 from
October 1, 2009, until paid in full, including post-judgment per contract, plus costs of suit
has been entered against you and in favor of the Plaintiff without any prior notice or hearing
based on a confession of judgment contained in a written agreement or other paper allegedly
signed by you. The sheriff may take your money or other property to pay the judgment at
any time after thirty (30) days after the date on which this notice is served on you.
You may have legal rights to defeat the judgment or to prevent your money or property from
being taken. YOU MUST FILE A PETITION TO STRIKE OR OPEN JUDGMENT
THEREBY SEEKING RELIEF FROM THE JUDGMENT STATING ALL GROUNDS FOR
RELIEF IN A SINGLE PETITION 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 AND CANNOT AFFORD ONE, GO TO OR TELEPHONE THE
OFFICE SET FORTH BELOW TO FIND OUT WHERE YOU CAN GET LEGAL HELP.
Pennsylvania Lawyer Referral Service
Pennsylvania Bar Association
P.O.Box 186
Harrisburg, PA 17108 1
1-800-692-7375 / / /i I
Dated: September 30.2009 By:
Forrest/r. Passerin, Esquire
As Attorney for Defendants
2 Aldwyn Lane, 20-536-ARO
Villanova PA 19085-1420
Phone: 610-526-6338
I.D. No. 85987
IN THE COURT OF COMMON PLEAS
OF CUMBERLAND COUNTY, PENNSYLVANIA
SOVEREIGN BAND CIVIL ACTION
Plaintiff
VS. No.
GATOR DEVELOPMENT, LLC, .
401 MARKET STREET PARTNERS, LLC, :
PETER J. RUSSO, an adult individual, and :
R. CHRISTOPHER ZAMPOGNA, .
an adult individual,
Defendants Confession of Ju ent
NOTICE UNDER RULE 2958.1 OF
JUDGMENT AND EXECUTION THEREON
NOTICE OF DEFENDANT'S RIGHTS
TO: Peter J. Russo
4 Shoff Court
Mechanicsburg, Pennsylvania 17055
A judgment in the amount of $167,536.43 plus per diem interest of $30.20833 from
October 1, 2009, until paid in full, including post-judgment per contract, plus costs of suit
has been entered against you and in favor of the Plaintiff without any prior notice or hearing
based on a confession of judgment contained in a written agreement or other paper allegedly
signed by you. The sheriff may take your money or other property to pay the judgment at
any time after thirty (30) days after the date on which this notice is served on you.
You may have legal rights to defeat the judgment or to prevent your money or
property from being taken. YOU MUST FILE A PETITION TO STRIKE OR OPEN
JUDGMENT THEREBY SEEDING RELIEF FROM THE JUDGMENT STATING ALL
GROUNDS FOR RELIEF IN A SINGLE PETITION 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 AND CANNOT AFFORD ONE, GO TO OR TELEPHONE THE
OFFICE SET FORTH BELOW TO FIND OUT WHERE YOU CAN GET LEGAL HELP.
Pennsylvania Lawyer Referral Service
Pennsylvania Bar Association r
P.O.Box 186
Harrisburg, PA 17108 y
1-800-692-7375
Dated: September 30.2009 By:
Forr t T. Pa seen, Esquire
As Attorney for Defendants
2 Aldwyn Lane, 20-536-ARO
Villanova PA 19085-1420
Phone: 610-526-6358
I.D. No. 85987
IN THE COURT OF COMMON PLEAS
OF CUMBERLAND COUNTY, PENNSYLVANIA
SOVEREIGN BANK CIVIL ACTION
Plaintiff
VS. No.
GATOR DEVELOPMENT, LLC,
401 MARKET STREET PARTNERS, LLC, :
PETER J. RUSSO, an adult individual, and :
R. CHRISTOPHER ZAMPOGNA,
an adult individual,
Defendants Confession of Judement
NOTICE UNDER RULE 2958.1 OF
JUDGMENT AND EXECUTION THEREON
NOTICE OF DEFENDANT'S RIGHTS
TO: R. Christopher Zampogna
5 Saratoga Place
Camp Hill, Pennsylvania 17011
A judgment in the amount of $167,536.43 plus per diem interest of $30.20833 from
October 1, 2009, until paid in full, including post-judgment per contract, plus costs of suit
has been entered against you and in favor of the Plaintiff without any prior notice or hearing
based on a confession of judgment contained in a written agreement or other paper allegedly
signed by you. The sheriff may take your money or other property to pay the judgment at
any time after thirty (30) days after the date on which this notice is served on you.
You may have legal rights to defeat the judgment or to prevent your money or
property from being taken. YOU MUST FILE A PETITION TO STRIKE OR OPEN
JUDGMENT THEREBY SEEKING RELIEF FROM THE JUDGMENT STATING ALL
GROUNDS FOR RELIEF IN A SINGLE PETITION 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 AND CANNOT AFFORD ONE, GO TO OR TELEPHONE THE
OFFICE SET FORTH BELOW TO FIND OUT WHERE YOU CAN GET LEGAL HELP.
Pennsylvania Lawyer Referral Service
Pennsylvania Bar Association
P.O.Box 186
Harrisburg, PA 17108
1-800-692-7375
Dated: September 30, 2009 By:
Forrgrt T. Passel"in, Esquire
As Attorney for Defendants
2 Aldwyn Lane, 20-536-ARO
Villanova PA 19085-1420
Phone: 610-526-6358
I.D. No. 85987
0 Air
IN THE COURT OF COMMON PLEAS
OF CUMBERLAND COUNTY, PENNSYLVANIA
SOVEREIGN BANK
CIVIL ACTION
Plaintiff :
vs. No.
GATOR DEVELOPMENT, LLC,
401 MARKET STREET PARTNERS, LLC, :
PETER J. RUSSO, an adult individual, and
R. CHRISTOPHER ZAMPOGNA,
an adult individual,
Defendants Confession of Judgment
NOTICE OF FILING JUDGMENT
( ) Notice is hereby given that a judgment in the above-captioned matter has been
entered against Gator Development, LLC, 401 Market Street Partners, LLC, Peter
J. Russo and R. Christopher Zampogna in the amount of $167,536.43 plus per
diem interest of $30.20833 from October 1, 2009, until paid in full, including
post judgment per contract, plus costs of suit on the day of ,
2008.
( ) A copy of all documents filed with the Prothonotary in support of the within
Judgment is/are enclosed.
Alf
Prothonotary Civil Div. IR
By:
If you have any questions concerning the above case, please contact the following party:
Forrest T. Passerin, Esquire (I.D. No. 85987)
Attorney for the Plaintiff
20-536-ARO
2 Aldwyn Lane
Villanova PA 19085-1420
Telephone: 610-526-6358
Notice sent:
(This Notice is given in accordance with Pa.R.C.P. 236.)
Gator Development, LLC
1520 Market Street
Camp Hill, Pennsylvania 17011
401 Market Street Partners, LLC
1520 Market Street
Camp Hill, Pennsylvania 17011
Peter J. Russo
4 Shoff Court
Mechanicsburg, Pennsylvania 17055
R. Christopher Zampogna
5 Saratoga Place
Camp Hill, Pennsylvania 17011
W
IN THE COURT OF COMMON PLEAS
OF CUMBERLAND COUNTY, PENNSYLVANIA
SOVEREIGN BANK CIVIL ACTION
Plaintiff
vs. No.
GATOR DEVELOPMENT, LLC,
401 MARKET STREET PARTNERS, LLC, :
PETER J. RUSSO, an adult individual, and
R. CHRISTOPHER ZAMPOGNA,
an adult individual, :
Defendants Confession of Judgment
SECTION 2737.1 NOTICE
Pursuant to 42 Pa. C.S. § 2737.1, attached hereto are written instructions
regarding the procedure to follow to strike the confessed judgment entered against you.
Please be further advised that if you have been incorrectly identified and had a
confession of judgment entered against you, under 42 Pa. C.S. § 2737.1 you are grititled
to costs and reasonable attorney's fees as determined by the Court.
Dated: September 30.2009 By:
Arrest T. Passeri, Esquire
As Attorney for Defendants
20-536-ARO
2 Aldwyn Lane
Villanova PA 19085-1420
Phone: 610-526-6358
I.D. No. 85987
` s i
Pa. R.C.P No. 2959
PURDON'S PENNSYLVANIA STATUTES AND CONSOLIDATED
STATUTES ANNOTATED PURDON'S PENNSYLVANIA CONSOLIDATED
STATUTES ANNOTATED PENNSYLVANIA RULES OF CIVIL PROCEDURE
CONFESSION OF JUDGMENT FOR MONEY.
Current with amendments received through December 1, 2003.
Rule 2959. Striking Off or Opening Judgment; Pleadings; Procedure
(a) (1) Relief from a judgment by confession shall be sought by petition.
Except as provided by subparagraph (2), all grounds for relief whether to strike off the
judgment or to open it must be asserted in a single petition. The petition may be filed in
the county in which the judgment was originally entered, in any county to which the
judgment has been transferred or in any other county in which the sheriff has received a
writ of execution directed to the sheriff to enforce the judgment.
(2) The ground that the waiver of the due process rights of notice and
hearing was not voluntary, intelligent and knowing shall be raised only
(i) in support of a further request for a stay of execution where the
court has not stayed execution despite the timely filing of a petition
for relief from the judgment and the presentation of prima facie
evidence of a defense; and
(ii) as provided by Rule 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.
r 0• 0
(b) If the petition states prima facie grounds for relief the court shall
issue a rule to show cause and may grant a stay of proceedings. After being served with a
copy of the petition the plaintiff shall file an answer on or before the return day of the
rule. The return day of the rule shall be fixed by the court by local rule or special order.
(c) A party waives all defenses and objections which are not included
in the petition or answer.
(d) The petition and the rule to show cause and the answer shall be
served as provided in Rule 440.
(e) The court shall dispose of the rule on petition and answer, and on
any testimony, depositions, admissions and all other evidence. The court for cause
shown may stay proceedings on the petition insofar as it seeks to open the judgment
pending disposition of the application to strike off the judgment. If evidence is produced
which in a jury trial would require the issues to be submitted to the jury the court shall
open the judgment.
(f) The lien of the judgment or of any levy or attachment shall be preserved
while the proceedings to strike off or open the judgment are pending.
.. !1
RLED-Q `^E
OF THE ° " H,`N NARY
(?7,
2009 OCT 29 Pi 1: 56
r.izY
a? a
`7JWzce- maZ;?
Sheriffs Office of Cumberland County
R Thomas Kline
Sheriff
Ronny R Anderson
Chief Deputy
Jody S Smith
Civil Process Sergeant
Edward L Schorpp
Solicitor
a yttr a cuitibrrr
QFflCE -r ERIFF
FILED-0-IcICE
OF THE c 0T;--n\!OTar4y
2009 Noy -4 A-1-11 11: 04
jN TY
Sovereign Bank
vs.
Peter J. Russo
Case Number
2009-7481
SHERIFF'S RETURN OF SERVICE
11/02/2009 03:07 PM - Michael Barrick, Deputy Sheriff, who being duly sworn according to law, states that on
November 2, 2009 at 1507 hours, he served a true copy of the within Confession of Judgment and
Complaint in Confession of Judgment, upon the within named defendant, to wit: Peter J. Russo, by
making known unto himself personally, at 5006 East Trindle Road Mechanicsburg, Cumberland County,
Pennsylvania 17055 its contents and at the same time handing to him personally the said true and correct
copy of the same.
11/02/2009 03:07 PM - Michael Barrick, Deputy Sheriff, who being duly sworn according to law, states that on
November 2, 2009 at 1507 hours, he served a true copy of the within Confession of Judgment and
Complaint in Confession of Judgment, upon the within named defendant, to wit: R. Christopher
Zampogna, by making known unto Peter Russo, Attorney for defendant at 5006 East Trindle Road
Mechanicsburg, Cumberland County, Pennsylvania 17055 its contents and at the same time handing to
him personally the said true and correct copy of the same.
11/02/2009 03:07 PM - Michael Barrick, Deputy Sheriff, who being duly sworn according to law, states that on
November 2, 2009 at 1507 hours, he served a true copy of the within Confession of Judgment and
Complaint in Confession of Judgment, upon the within named defendant, to wit: Gator Development, Inc.,
by making known unto Peter Russo, Officer at 5006 East Trindle Road Mechanicsburg, Cumberland
County, Pennsylvania 17055 its contents and at the same time handing to him personally the said true anc
correct copy of the same.
11/02/2009 03:07 PM - Michael Barrick, Deputy Sheriff, who being duly sworn according to law, states that on
November 2, 2009 at 1507 hours, he served a true copy of the within Confession of Judgment and
Complaint in Confession of Judgment, upon the within named defendant, to wit: 401 Market Street
Partners, LLC, by making known unto Peter Russo, Officer at 5006 East Trindle Road Mechanicsburg,
Cumberland County, Pennsylvania 17055 its contents and at the same time handing to him personally the
said true and correct copy of the same.
SHERIFF COST: $85.00 SO ANSWERS,
November 03, 2009 R THOMAS KLINE, SHERIFF
DA(pTKy Sheri f
Acceptance of Service
I accept the service of the Confession of Judgnent and Complaint in Confession
of Judgnent (Docket # 2009-7481)
(on behalf of R. Christopher Zanpogna and
certify that I am authorized to do so.)
1 i?-I C)
Date
Authorized Agent
5006 E. Trindle Road Mechanicsburg. PA 17055
Mailing Address
Acceptance of Service
I accept the service of the Confession of Judgment and Complaint in Confession
of Judgment (Docket # 2009-7481)
(on behalf of Gator Development, Inc. and
certify that I am authorized to do so.)
Date Authorized Agent
Acceptance of Service
I accept the service of the Confession of Judgment and Carplaint in Confession
of Judgment (Docket #2009-7481)
(on behalf of 401 Market Street Partners, LLC
certify that I am authorized to do so.)
NI ('j- 4 01
Date
and
Authorized Agent
5006 E. Trindle Road Mechanicsburg, PA 17055
Mailing Address
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
SOVEREIGN BANK,
Plaintiff ) Civil Action No. 09-7481
V. ) Confession of Judgment
C- Y
401 MARKET STREET PARTNERS, LLC, ) - .
GATOR DEVELOPMENT, LLC, and ) rn R. CHRISTOPHER ZAMPOGNA,
N)
Defendants )
-rte;
PRAECIPE
Please mark Plaintiff's judgment to the use of PNL New Era, LLC, as follows:
PNL New Era, LLC
2100 Ross Avenue
Suite 2900
Dallas, Texas 75201
SOVEREIGN BANK
Dated: February 2013
*Aey Goodman, Esq uire
o. 62689
Lane
20-536-ARO
Villanova, PA 19085-1420
Attorneys for Plaintiff
+q5a Pa AT T%J
?? 708
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY,PENNSYLVANIA
PNL NEW ERA,LLC,Use Plaintiff )
Plaintiff/Petitioner ) Civil Action No. 09-7481
V. ) Confession of Judgment
401 MARKET STREET PARTNERS,LLC, )
GATOR DEVELOPMENT,LLC,and )
R. CHRISTOPHER ZAMPOGNA, ) r
..�
Defendants/Respondents ) =� =
<_' co
and ) <
CAPO ASSOCIATES,LLC, CJ2 GROUP,LLC,)
GUIDO GROUP,LLC and GATOR
DEVELOPMENT GROUP,LLC, )
Additional Respondents )
PLAINTIFF'S PETITION FOR THE ISSUANCE OF A CHARGING ORDER
AGAINST R. CHRISTOPHER ZAMPOGNA PURSUANT TO Pa.R.C.P.3118
Plaintiff, PNL New Era, LLC, assignee of Sovereign Bank,by and through its attorneys
Lesavoy Butz & Seitz LLC, respectfully petitions this Honorable Court pursuant to Pa.R.C.P.
3118 for a charging order against Defendant R. Christopher Zampogna's economic interests in
CAPO Associates, LLC, 02 Group, LLC, Guido Group, LLC and Gator Development Group,
LLC:
1. The Petitioner is Plaintiff, PNL New Era, LLC, with an address of 2100 Ross
Avenue, Suite 2900, Dallas, Texas 75201.
2. Petitioner is the assignee of all rights, title, and interest of Sovereign Bank in the
instant action and judgment. A true and correct copy of the Praecipe marking Sovereign Bank's
judgment in this matter to the use of Petitioner is attached to this Petition as Exhibit A.
1
3. Respondent R. Christopher Zampogna is obligated to Petitioner on the instant
judgment, which was entered on October 29, 2009, in the amount of$167,536.43, plus interest
at the rate of$30.20 per day from September 30, 2009 (the "Judgment").
4. The amount due on the Judgment is $201,541.63 as of October 31, 2012,
calculated as follows:
Judgment $ 167,536.43
Plus interest to 3/15/13* $ 38,082.20
TOTAL $ 205,618.63
*per diem= $30.20
5. Additional Respondent CAPO Associates, LLC ("CAPO") is a Pennsylvania
limited liability company with a registered address at 5 Saratoga Place, Camp Hill, PA 17011.
6. Additional Respondent 02 Group, LLC ("CJ2") is a Pennsylvania limited
liability company with a registered address of 1520 Market Street, Camp Hill, PA 17001.
7. Additional Respondent Guido Group, LLC ("Guido") is a Pennsylvania limited
liability company with a registered address of 3800 Market Street, Camp Hill, PA 17011.
8. Additional Respondent Gator Development Group, LLC ("Gator") is a
Pennsylvania limited liability company with a registered address of 1520 Market Street, Camp
Hill, PA 17011.
9. Upon information and belief, Respondent Zampogna owns economic rights in
CAPO, 02, Guido, and Gator(collectively, the "Additional Respondents") which are
severable and separate from his membership interests and governance rights in the Additional
Respondents.
10. Based on the foregoing, and in order to obtain payment of the Judgment from
against Respondent Zampogna, Petitioner is entitled to the entry of a charging order against
Respondent Zampogna's economic rights flowing from his membership interests in the
2
Additional Respondents. See Zokaites v. Pittsburgh Irish Pubs, LLC, 962 A.2d 1220, 1225-27
(Pa. Super 2008), appeal denied, 601 Pa. 697, 972 A.2d 523 (2009).
11. Based on the foregoing, Petitioner is entitled to the issuance of a charging order
directed against the Additional Respondents requiring and compelling the Additional
Respondents to pay over to Petitioner all monies which may come due and owing to Respondent
Zampogna, arising out of, relating to, or connected with his membership interest in the
Additional Respondents, including any return of his investment in the Additional Respondents,
as well as any distributions and/or returns thereon or related thereto.
WHEREFORE,Plaintiff respectfully requests the entry of an Order of this Court in the
form attached hereto issuing the charging order sought herein, together with additional relief as
the Court deems just and appropriate.
LESAVO BUT S LLC
Jack . Seitz, Esquire
Atto ey No. 3702
Zach n, Esquire
Attorney No. 91119
One Windsor Plaza
7535 Windsor Drive, Suite 200
Allentown, PA 18195
(610) 530-2700
Attorneys for Plaintiff
3
CERTIFICATE OF SERVICE
I, Zachary J. Cohen, Esquire, certify that on this?�� day of March, 2013, I served a
copy of the foregoing Petition via U.S. Mail, postage pre-paid to the following:
401 Market Street Partners, LLC Gator Development, LLC
c/o R. Christopher Zampogna, Member c/o R. Christopher Zampogna, Member
5 Saratoga Place 5 Saratoga Place
Camp Hill, PA 17011 Camp Hill, PA 17011
R. Christopher Zampogna CAPO Associates, LLC
c/o R. Christopher Zampogna, Member c/o R. Christopher Zampogna, Member
5 Saratoga Place 5 Saratoga Place
Camp Hill, PA 17011 Camp Hill, PA 17011
02 Group, LLC Guido Group, LLC
c/o R. Christopher Zampogna, Member c/o R. Christopher Zampogna, Member
5 Saratoga Place 5 Saratoga Place
Camp Hill, PA 17011 Camp Hill, PA 17011
Gator Development Group, LLC Joseph K. Goldberg,Esquire
c/o R. Christopher Zampogna, Member 2080 Linglestown Road
5 Saratoga Place Suite 106
Camp Hill, PA 17011 Harrisburg, PA 17110
Zachary . ohen, Esquire
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY,PENNSYLVANIA
PNL NEW ERA,LLC,Use Plaintiff )
Plaintiff/Petitioner ) Civil Action No. 09-7481
V. ) Confession of Judgment
401 MARKET STREET PARTNERS,LLC, )
GATOR DEVELOPMENT,LLC,and )
R. CHRISTOPHER ZAMPOGNA, )
Defendants/Respondents )
and )
CAPO ASSOCIATES,LLC, CJ2 GROUP,LLC,)
GUIDO GROUP,LLC and GATOR )
DEVELOPMENT GROUP,LLC, )
Additional Respondents )
CERTIFICATION OF (NON)CONCURRENCE OF COUNSEL
I, Zachary J. Cohen, Esquire, hereby certify that there is no opposing counsel of record in
this matter, and accordingly, no concurrence need be sought, however, counsel for Respondent
R. Christopher Zampogna, Joseph K. Goldberg, Esquire, who is not of record, indicated that he
does not concur in the relief sought by this Petition.
LESAVOY BUTZ& SEITZ LLC
Jack M. Se' , Esquire
Attorney o. 37026
Zachary . Cohen, ire
Attorney 19
One Windsor Plaza
7535 Windsor Drive, Suite 200
Allentown, PA 18195
(610) 530-2700
Attorneys for Plaintiff
VERIFICATION
hereby state and verify that I am a otn G!�,e r of
the plaintiff/petitioner organization, and that I am authorized to make this verification on behalf
of said organization; and that the facts set forth in the foregoing Petition are true and correct to
the best of my knowledge, information and belief.
I understand that false statements herein are made subject to the penalties of 18 Pa..C.S.
§4904 relating to unsworn falsification to authorities.
PNL NEW ERA, LLC
Date: Ci Q- Z 3 , 2012
I''I an as e�
EMILY R. REEVES
Notary Public.State of Texas
My commission Expires
��''% December 15, 2015
EXHIBIT A
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY,PENNSYLVANIA
SOVEREIGN BANK, )
Plaintiff ) Civil Action No. 09-7481
V. ) Confession of Judgment -
401 MARKET STREET PARTNERS,LLC, ) ,
GATOR DEVELOPMENT,LLC,and ) ry
R.CHRISTOPHER ZAMPOGNA, ) r—
Defendants iz
PRAECIPE
Please mark Plaintiff's judgment to the use of PNL New Era,LLC, as follows:
PNL New Era, LLC
2100 Ross Avenue
Suite 2900
Dallas,Texas 75201
SOVEREIGN BANK
Dated: February to , 2013
*Aevy Goodman,E squire
No. 62689
Lane
20-536-ARO
Villanova,PA 19085-1420
Attorneys for Plaintiff
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY,PENNSYLVANIA
PNL NEW ERA,LLC,Use Plaintiff,
Plaintiff Civil Action No. 09-7481
V. Confession of Judgment
401 MARKET STREET PARTNERS,LLC,
GATOR DEVELOPMENT,LLC,and
R. CHRISTOPHER ZAMPOGNA, ICU
r'r 3;0
Defendants co
r-T
CD -0
=X
PRAECIFE FOR ENTRY OF APPEARANCE
TO THE PROTHONOTARY:
Please enter our appearances on behalf of the Plaintiff, PNL New Era, LLC.
LESAVOY BU Z LLC
Jack M. Seitz quire
0
Attorney No.Seitz,
"j'L
Zachary J. ohen, Esquire
Attorney N . 91119
One Winds P Plaza
t
7535 Windso five it 200
Allentown, PA 18195
(610) 530-2700
Attorneys for Plaintiff
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY,PENNSYLVANIA
PNL NEW ERA,LLC,Use Plaintiff )
Plaintiff/Petitioner ) Civil Action No. 09-7481
V. ) Confession of Judgment
401 MARKET STREET PARTNERS,LLC, )
GATOR DEVELOPMENT,LLC,and ) c
R. CHRISTOPHER ZAMPOGNA,
r,r: -0 fn
Defendants/Respondents ) rte- ' �6
-t ca 6
and
{ r
C",
CAPO ASSOCIATES,LLC, CJ2 GROUP,LLC,) °-
GUIDO GROUP,LLC and GATOR ) -
DEVELOPMENT GROUP,LLC, )
Additional Respondents )
ORDER
3�a
AND NOW,this day of + , 2013, upon consideration of the attached
Petition, it is hereby Ordered that:
1. a Rule is issued upon the Respondents and Additional Respondents to show cause
why the petitioner is not entitled to the relief requested;
2. the Respondents and Additional Respondents shall file an answer to the petition
within twenty(20) days of service;
3. the Petition shall be decided under Pa.R.Civ. P. No. 206.7;
4. depositions shall be completed within days of this date;
an i3
5. a hearing shall be held on in Courtroom �"
of the Cumberland County Court of Common Pleas, R;00 A. w-
6. the Petitioner shall provide notice of entry of this Order to Respondents and
Additional Respondents.
BY THE COURT:
LLC
J
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
PNL NEW ERA, LLC, Use Plaintiff, :
Plaintiff :
: NO. 09-7481
v. .
. CIVIL TERM
401 MARKET STREET PARTNERS, •
GATOR DEVELOPMENT, LLC and R. :
CHRISTOPHER ZAMPOGNA, an adult : Confession of Judgment
individual,
•
Defendants/Respondents : - ^;
and r , ; ;_
tn4 r ;r,
CAPO ASSOCIATES, LLC, C2J �.. - ., f
GROUP, LLC, GUIDO GROUP, LLC '‹`-_
and GATOR DEVELOPMENT GROUP,
LLC,
Additional Respondents
ORDER
AND NOW, this ON day of April, 2013, upon the unopposed request of counsel
for Respondents to change the date of the hearing set in this matter,
IT IS HEREBY ORDERED that the hearing in this matter previously set for June
20, 2013, is hereby rescheduled and shall be held on Friday, June 28, 2013, at 1:45
p.m. in Courtroom 2 of the Cumberland County Courthouse.
BY THE COURT:
M. L. Ebert, Jr., J.\ i\k. L- f/Ijk
-r-s ' 6 e// .•. �- -
! i
r
Joseph K. Goldberg, Esquire
2080 Linglestown Road, Suite 106
Harrisburg,PA 17110
(717) 703-3600
jgoldberg @ssbc-law.com
PA ID#46782
--------------------------------------
IN THE COURT OF COMMON PLEAS, CUMBERLAND COUNTY, PENNSYLVANIA
SOVEREIGN BANK,
Plaintiff/Respondent _
NO. 09-7481
V. r�M
CIVIL TERM 3 177
GATOR DEVELOPMENT, LLC, 401 �� �,
MARKET STREET PARTNERS, LLC,
and R. CHRISTOPHER ZAMPOGNA, Confession of Judgment —' r,., A`}C
an adult individual,
Defendants/Petitioners
V.
PNL NEW ERA LLC,
Additional Respondent
PETITION TO HAVE JUDGMENT
MARKED SATISFIED RELEASED AND DISCHARGED AS TO ALL DEFENDANTS
AND
FOR RULE TO SHOW CAUSE
NOW COME Defendants, Gator Development, LLC, 401 Market Street Partners,
LLC, and R. Christopher Zampogna, by and through their attorney, Joseph K. Goldberg,
who Petition the court pursuant to 42 Pa. C.S. § 8103(d) to direct the Prothonotary to
mark the judgment against them entered in this case satisfied, released and
discharged, and in support thereof aver as follows:
PARTIES
1. Petitioners are Gator Development, LLC, 401 Market Street Partners,
LLC, Pennsylvania limited liability companies, and R. Christopher Zampogna, an adult
individual, all Defendants in the above-captioned case, against whom judgment was
entered.
2. Respondent Sovereign Bank was the Plaintiff in the above-captioned
case, which obtained the judgement against Petitioner.
3. Respondent PNL New Era, LLC, is the assignee of the judgment obtained
by Sovereign Bank against Petitioners.
FACTUAL AVERMENTS
4. On October 28, 2009, Respondent Sovereign Bank entered judgment by
confession in this case against-Petitioners and Defendants, in the amount of
$167,536.43, plus per diem interest at the rate of$30.20833 from October 1, 2009, and
costs of suit.'
5. The confessed judgment was authorized by the terms of a commercial
loan transaction between the parties, as set forth in the Complaint for Confession of
Judgment and Exhibits attached to the Complaint.
6. As security for the loan, Defendants gave a mortgage to Respondent
Sovereign Bank on real property they owned, located at 401 and 403 Market Street,
New Cumberland, Cumberland County, Pennsylvania. The mortgage is recorded with
'Judgment was also entered against Peter J. Russo as a guarantor, but that
judgment was included in a bankruptcy proceeding filed by Mr.Russo and, upon
information and belief, is no longer enforceable against him.
2
the Cumberland County Recorder of Deeds in Book 1957, Page 810. The property is
identified as Tax Parcel No. 25-24-0813-046.
7. Also on October 28, 2009, Plaintiff obtained judgment by confession
against the same Defendants in Civil No. 09-7443. That case also involved a
commercial loan to the same borrower and with the dame guarantors as in the instant
matter.
8. The loan in Case No. 09-7443 was also secured by the same real
property by means of the same mortgage referenced in paragraph 6, above.
9. To satisfy the judgment against Defendants in Case No. 09-7443,
Respondent Sovereign Bank obtained a Writ of Execution for a Sheriff's Sale of the
aforesaid real property.
10. Prior to the Sheriff conducting the Sale, Sovereign Bank filed a Praecipe
in this case assigning the judgment "for the use of Respondent PBE Companies, LLC.
11. The Sheriff's Sale was conducted on September 8, 2010.
12. Respondent PBE Companies, LLC, was the successful bidder and took
title to the real property.
13. The bid price was not sufficient to satisfy the amount of the judgment,
interest and costs.
14. More than six (6) months have passed since the aforesaid sale of the real
property.
15. No Respondent, nor any other person, has filed a petition to fix the fair
market value of the real property.
16. Although the property taken and sold was done so by a Writ issued in
3
another proceeding, all parties to that action are identical to the parties in this case, and
the real property at issue was security for the loans underlying the judgment in this
matter an in Case No. 09-7443. Therefore, the court should treat the sale as if it were
also conducted for the purpose of satisfying the judgment in the instant case. Doing
otherwise would result in unjust enrichment on the part of Plaintiff and its use
assignees.
17. Pursuant to 42 Pa. C.S. § 5522, the time for filing a petition to fix the fair
market value of real property purchased by a secured party at a Sheriff's Sale has
expired.
18. Pursuant to 42 Pa. C.S. § 8103(d), Petitioners are entitled to the entry of
an Order by the court directing the Prothonotary to mark the judgment in this case
satisfied, released and discharged as to all Petitioners and Defendants.
WHEREFORE, Petitioners pray that this court issue a Rule upon Respondents
to show cause, if any they have, why the court should not grant this Petition, and for the
entry of a final Order directing the Prothonotary to mark the judgement in this case
satisfied, released and discharged as to Petitioners and Defendants.
Res,,p itted,
2 Jos K. Goldb , Esquire
orney ID No. 782
2080 Linglestown Road, Suite 106
Harrisburg, PA 17110
(717)703-3600
Date: ZV 3-13
Attorney for Petitioners
4
VERIFICATION
I, R. Christopher Zampogna, personally and on behalf of all other Respondents,
hereby state that I have reviewed the foregoing Petition and verify that the facts set
forth in the document are true and correct to the best of my personal knowledge,
information and belief; and that this statement is made subject to the penalties of 18
Pa. C.S. § 4904 relating to unsworn falsification to authorities.
Dated: q1 3/3
?�STOPHER17POGNA
CERTIFICATE OF SERVICE
I, the undersigned, hereby certify that on theg day of 6 , 2013, 1
served a copy of the foregoing, by first-class mail, postage prepaid, upon the following:
Zachary J. Cohen, Esquire
Jack M. Seitz, Esquire,
Lesavoy Butz & Seitz, LLC
One Windsor Plaza
7535 Windsor Drive
Suite 200
Allentown, PA 18195
Attorneys for Sovereign Bank, PBE Companies, LLC and PNL New Era, LLC
os h oldberg, E q ire
Joseph K. Goldberg, Esquire
2080 Linglestown Road, Suite 106
Harrisburg,PA 17110
(717) 703-3600
jgoldberg@ssbc-law.com
PA ID#46782
--------------------------------------
IN THE COURT OF COMMON PLEAS, CUMBERLAND COUNTY, PENNSYLVANIA
SOVEREIGN BANK,
Plaintiff
NO. 09-7481
v.
CIVIL TERM
GATOR DEVELOPMENT, LLC, 401
MARKET STREET PARTNERS, LLC,
and R. CHRISTOPHER ZAMPOGNA, Confession of Judgment S;
an adult individual, M CD X-
Defendants/Respondents
and
5(5
CAPO ASSOCIATES, LLC, C2J
CO
GROUP, LLC, GUIDO GROUP, LLC
and GATOR DEVELOPMENT GROUP,
LLC,
Additional Respondents
RESPONDENTS' ANSWER
TO PETITION FOR THE ISSUANCE OF A CHARGING ORDER AGAINST R.
CHRISTOPHER ZAMPOGNA PURSUANT TO PA. R.C.P. 3118
Respondents, by and through their attorney, Joseph K. Goldberg, answer the
Petition of Plaintiff seeking a charging order as follows:
1. Admitted.
2. The averments of paragraph 2 are conclusions of law to which no
response is required.
3. Denied. To the contrary, Plaintiff has failed to credit Respondent
Zampogna properly for the funds obtained by liquidating collateral. Alternatively, the
averments, are denied, as the judgment against Respondent Zampogna is satisfied as a
matter of law.
4. Denied. To the contrary, for the reasons set forth in paragraph 3, above,
no money is due on the referenced judgment.
5. Admitted.
6. Admitted.
7. Admitted.
8. Admitted.
9. Denied as to Gator Development Group, LLC. To the contrary,
Respondent Zampogna's entire interest in that LLC are owned jointly with his wife and
are not severable. The remaining averments; are conclusions of law to which no
response is required.
10. Denied as to Gator Development Group, LLC, as Respondent Zampogna
has no such rights which are severable, as they are joint with his wife. The remaining
averments are conclusions of law to which no response is required.
11. The averments of paragraph 11 are conclusions of law to which no
response is required.
2
WHEREFORE, Respondents respectfully request that Plaintiff's Petition be
denied.
Respectfully submitted,
K. Goldb g, Esquire
orney ID No 46782
2080 Linglest wn Road, Suite 106
Harrisburg, PA 17110
(717)703-3600
Date: Attorney for Respondents
3
VERIFICATION
I, R. Christopher Zampogna, personally and on behalf of all other Respondents,
»SwQr �a
hereby state that I have reviewed the foregoingfPetition and verify that the facts set
forth in the document are true and correct to the best of my personal knowledge,
information and belief; and that this statement is made subject to the penalties of 18
Pa. C.S. § 4904 relating to unsworn falsification to authorities.
Dated:
C ST R ZAMPOGNA
CERTIFICATE OF SERVICE
I, the undersigned, hereby certify that on the Aay of , 2013, 1
served a copy of the foregoing, by first-class mail, postage prepaid, upon the following:
Zachary J. Cohen, Esquire
Jack M. Seitz, Esquire,
Lesavoy Butz & Seitz, LLC
One Windsor Plaza
7535 Windsor Drive
Suite 200
Allentown, PA 18195
Attorneys for Sovereign Bank, PBE Companies, LLC and PNL New Era, LLC
Goldberg, E qui e
SOVEREIGN BANK, IN THE COURT OF COMMON PLEAS OF
PLAINTIFF/RESPONDENT CUMBERLAND COUNTY; PENNSYLVANIA
V.
GATOR DEVELOPMENT, LLC, 3 -�
401 MARKET STREET PARTNERS, mO4 rn
LLC, AND R. CHRISTOPHER �
ZAMPOGNA, AN ADULT INDIVIDUAL
DEFENDANTS/PETITIONERS ,,. F,
V. rt
PNL NEW ERA, LLC
ADDITIONAL RESPONDENT NO. 09-7481 CIVIL
ORDER OF COURT
AND NOW, this 30th day of April, 2013, upon consideration of the Petition to
Have Judgment Marked Satisfied, Released and Discharged as to All Defendants,
IT IS HEREBY ORDERED AND DIRECTED that:
1. A Rule is issued upon the Respondents to show cause why the Petitioners
are not entitled to the relief requested;
2. The Respondents shall file an Answer to the Petition within 30 days of this
date;
3. The Petition shall be decided under PA.R.C.P. NO. 206.7;
4. Depositions, if any, shall be completed within 45 days of this date;
5. Argument/hearing on the matter shall be held on Friday, June 28, 2013, at
1:45 p.m. in Courtroom No. 2 of the Cumberland County Courthouse, Carlisle,
Pennsylvania;
6. Notice of the entry of this Order shall be provided to all parties by the
Petitioner.
By the Court,
M. L. Ebert, Jr., J.
/d'oseph Goldberg, Esquire
2080 Linglestown Road
Harrisburg, PA 17110
ck Seitz, Esquire
One Windsor Plaza
7535 Windsor Drive
Suite 200
Allentown, PA 18195
bas
��O
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY,PENNSYLVANIA
PNL NEW ERA,LLC, Use Plaintiff
Plaintiff/Respondent Civil Action No. 09-7481
V.
401 MARKET STREET PARTNERS,LLC, Confession of Judgment
GATOR DEVELOPMENT,LLC, and
R. CHRISTOPHER ZAMPOGNA, C=
M
Defendants/Petitioners ==M
PLAINTIFF'S ANSWER TO PETITION TO HAVE
JUDGMENT MARKED SATSIFIED,RELEASED
AND DISCHARGED AS TO ALL DEFENDANTS E3
Plaintiff, PNL New Era, LLC, assignee of Sovereign Bank, by and through its-Atot4?�ys
Lesavoy Butz& Seitz LLC, opposes Defendants' Petition to Have Judgment Marked Satisfied,
Released and Discharged as to All Defendants:
1. Admitted
2. Denied. Sovereign Bank("Sovereign") is not a respondent in this matter and is no
longer the holder of the judgment at issue in this case; to the contrary, the judgment has been
marked to the use of PNL New Era, LLC, and Sovereign no longer has rights in connection with
the judgment.
3. Admitted
4. Admitted, although the docket speaks for itself and respondent need not reply to
petitioner's description of the judgment.
5. Admitted, although the documents and exhibits speak for themselves.
6. Denied as stated. Respondent admits the judgment in this case was entered on a
note that originated at $40,000 but was increased to $150,000 (the "$150,000 Sovereign Loan").
In addition to the $150,000 Sovereign Loan, Respondent admits that Sovereign also made the
following loans: (A) a $200,000 loan (the "$200,000 Sovereign Loan") to Gator Development,
LLC ("Gator"), guaranteed by the record owner of the mortgaged real estate -- 401 Market
Street Partners, LLC ("401 Market LLC"); and(B) a $340,000 loan to 401 Market LLC
guaranteed by Gator (the "$340,000 Sovereign Loan"). It is admitted that 401 Market, LLC,
conveyed two separate mortgages to Sovereign Bank to secure the $200,000 Sovereign Loan and
the $340,000 Sovereign Loan. It is admitted that the mortgage securing the $200,000 Sovereign
Loan is recorded in Book 1957, Page 801. It is denied that the $200,000 mortgage recorded at
Book 1957, Page 801 secured the $340,000 Sovereign Loan or the $150,000 Sovereign Loan (the
Loan at issue in this case). Respondent demands strict proof at the hearing of all averments not
expressly admitted in this reply.
7. Admitted as to the entry of judgment. The allegations and issues in the case are
set forth in the filings of record and Respondent need not reply to Petitioners' characterizations
of those filings.
8. Denied. Respondent denies that the loan in case no. 09-7443 (the $200,000
Sovereign Loan) was secured the mortgage that also secured the loan at issue in this case (the
$150,000 Sovereign Loan). Respondent demands strict proof at the hearing of all averments not
expressly admitted in this reply.
9. Denied as stated. It is admitted that Respondent obtained a writ of execution in
Connection with the $ $200,000 Sovereign Loan in case no. 09-7443 and foreclosed on the
$200,000 mortgage securing that particular loan. Respondent denies it foreclosed on the separate
mortgage securing the $340,000 Sovereign Loan or on any mortgage other than the $200,000
2
mortgage securing the $200,000 Sovereign Loan. Respondent demands strict proof at the
hearing of all averments not expressly admitted in this reply.
10. Admitted.
11. Admitted only that a sheriff's sale took place in a different case on a mortgage
that did not secure the loan at issue in this case. Respondent demands strict proof at the hearing
of all averments not expressly admitted in this reply.
12. Admitted only that Sovereign's subsidiary was the successful bidder at a sheriff's
sale that took place in a different case on a mortgage that did not secure the loan at issue in this
case. Respondent demands strict proof at the hearing of all averments not expressly admitted in
this reply.
13. Admitted, to the extent this paragraph alleges that the actual bid was less than the
amount of the judgment in Case No. 09-7443 (plus interest and costs).
14. Admitted.
15. Denied as stated. It is admitted that no petition fixed the fair market value has
been filed. Respondent denies any such petition was required in order to protect the claims at
issue in this case.
16. Denied as stated. Respondent denies the allegations in paragraph 16 because they
state conclusions of law. Should a reply be deemed necessary, Respondent submits that because
the sheriff's sale was conducted in another proceeding in foreclosure of another mortgage
securing a different loan, Respondent was not obligated to file a petition to fix the fair market
value of the property pursuant to the Pennsylvania Deficiency Judgment Act, 42 Pa.C.S. Section
8103(a), in order to preserve its claims in this case. Petitioners' contentions are contrary to and
totally unsupported by the law of Pennsylvania.
3
17. Denied. Respondent denies the allegations in paragraph 17 as conclusions of law
18. Denied. Respondent denies the allegations in paragraph 18 as conclusions of law
WHEREFORE,Respondent respectfully request that the Court deny all of the relief
requested by Petitioners and dismiss the Petition, with prejudice.
LESAVOY BUTZ & SEITZ LLC
Ja . S i z, Esquire
ttorney No. 37026
Zachary J. Cohen, Esquire
Attorney No. 91119
One Windsor Plaza
7535 Windsor Drive, Suite 200
Allentown, PA 18195
(610) 530-2700
Attorneys for Plaintiff
4
CERTIFICATE OF Sc.'r,EMRVICE
I, Jack M. Seitz, Esquire, certify that on this'" day of May, 2013, I served a copy of
the foregoing Reply via U.S. Mail, postage prepaid, to the following:
Joseph K. Goldberg, Esquire
2080 Linglestown Road
Suite 106
Harrisburg, PA 17110
20 113
Date J S it , Esq.
PNL NEW ERA, LLC IN THE COURT OF COMMON PLEAS OF
Plaintiff/Petitioner CUMBERLAND COUNTY, PENNSYLVANIA
V.
GATOR DEVELOPMENT, LLC, 401
MARKET STREET PARTNERS, LLC,
and R. CHRISTOPHER ZAMPOGNA, CIVIL ACTION - LAW
an adult individual,
Defendant/Respondents
and
CAPO ASSOCIATES, LLC, C2J
GROUP, LLC, GUIDO GROUP, LLC,
and GATOR DEVELOPMENT GROUP, :
LLC,
Additional Respondents : NO. 09-7481 CIVIL TERM
ORDER OF COURT
AND NOW, this 28th day of June, 2013 , the facts of this
case having been stipulated to, IT IS HEREBY ORDERED AND DIRECTED
that the parties shall file briefs in support of their positions on
or before July 31, 2013 .
By the Court,
M. L. Ebert, Jr. , J.
Zachary J. Cohen, Esquire 0
One Windsor Plaza
7535 Windsor Drive
Suite 200 -v3 w —�
Allentown, PA 18195 �m c n3u
Attorneys for Sovereign Bank, cZ� r-- C,
PBE Companies, LLC and PNL New Era, LLC -<> ca
oseph K. Goldberg, Esquire bC�, _
2080 Linglestown Road, Suite 106 ? C.;
Harrisburg, PA 17110 ' �
CA
Attorney for Respondents
-< c t
:vae
J
PNL NEW ERA, Use plaintiff : IN THE COURT OF COMMON PLEAS
Plaintiff : OF CUMBERLAND COUNTY,
: PENNSYLVANIA
v.
•
: CIVIL ACTION - LAW
401 MARKET STREET PARTNERS, : CONFESSION OF JUDGMENT
LLC, GATOR DEVELOPMENT, LLC, :
and R. CHRISTOPHER ZAMPOGNA, : No. 09-7473 Civil Term
an adult individual,
Defendants
•
•
and
•
•
CAPO ASSOCIATES, LLC, CJ2
GROUP, LLC, GUIDO GROUP, LLC and :
GATOR DEVELOPMENT GROUP, LLC, :
Additional Respondents
PNL NEW ERA, Use plaintiff : IN THE COURT OF COMMON PLEAS
Plaintiff : OF CUMBERLAND COUNTY,
PENNSYLVANIA
v. •
•
401 MARKET STREET PARTNERS, : CIVIL ACTION — LAW
LLC, GATOR DEVELOPMENT, LLC,
and R. CHRISTOPHER ZAMPOGNA, : CONFESSION OF JUDGMENT
an adult individual, •
•
Defendants
and
•
CAPO ASSOCIATES, LLC, CJ2
GROUP, LLC, GUIDO GROUP, LLC and
GATOR DEVELOPMENT GROUP, LLC,
Additional Respondents •
IN RE: PETITION TO HAVE JUDGMENT MARKED SATISFIED, RELEASED AND
DISCHARGED AS TO ALL DEFENDANTS AND FOR RULE TO SHOW CAUSE
ORDER OF COURT
AND NOW this 25th day of November, 2013, after consideration of the Petitions
to Have Judgment Marked Satisfied, Released and Discharged as to All Defendants
and for Rule to Show Cause in the above-captioned cases, Petitioner's Response,
hearing held on July 28, 2013, and after review of the parties' briefs;
IT IS HEREBY ORDERED AND DIRECTED that the Petition to Have Judgment
Marked Satisfied, Released and Discharged as to All Defendants is GRANTED in Case
No. 09-7473. The Prothonotary is directed to mark the judgment in case 09-7473
satisfied, released and discharged as to Petitioners and Defendants.
IT IS HEREBY FURTHER ORDERED AND DIRECTED that the Petition to Have
Judgment Marked Satisfied, Released and Discharged as to All Defendants is DENIED
in Case No. 09-7481.
By the Court,
M. L. bert, Jr.,
/Jack Seitz, Esquire
Attorney for Plaintiff r' r
x
One Windsor Plaza u' "' . .
7535 Windsor Drive
-c-
Suite 200
Allentown, PA 18195 $, } '
Joseph Goldberg, Esquire
Attorney for Defendants
2080 Linglestown Road
Harrisburg, PA 17110
�VplGs wow fe" i// 7/3
PNL NEW ERA, Use plaintiff : IN THE COURT OF COMMON PLEAS
Plaintiff : OF CUMBERLAND COUNTY,
: PENNSYLVANIA
v.
•
: CIVIL ACTION - LAW
401 MARKET STREET PARTNERS, : CONFESSION OF JUDGMENT
LLC, GATOR DEVELOPMENT, LLC,
and R. CHRISTOPHER ZAMPOGNA, : No. 09-7473 Civil Term
an adult individual,
•
Defendants
•
•
and
•
•
CAPO ASSOCIATES, LLC, CJ2
GROUP, LLC, GUIDO GROUP, LLC and :
GATOR DEVELOPMENT GROUP, LLC, :
Additional Respondents
PNL NEW ERA, Use plaintiff : IN THE COURT OF COMMON PLEAS
Plaintiff : OF CUMBERLAND COUNTY,
: PENNSYLVANIA
v. •
•
401 MARKET STREET PARTNERS, : CIVIL ACTION — LAW
LLC, GATOR DEVELOPMENT, LLC, •
and R. CHRISTOPHER ZAMPOGNA, : CONFESSION OF JUDGMENT
an adult individual, •
•
Defendants •
: No. 09-7481 Civil Term
and •
•
CAPO ASSOCIATES, LLC, CJ2 •
GROUP, LLC, GUIDO GROUP, LLC and
GATOR DEVELOPMENT GROUP, LLC,
Additional Respondents •
3
OPINION AND ORDER OF COURT
Ebert, J., November 25, 2013 —
Procedural History and Statement of Facts
This matter involves three separate loans made by Sovereign Bank to
Defendants related to the purchase and operation of a restaurant in Cumberland
County. The borrower for all three loans was Gator Development, LLC. The guarantors
for all three loans were 401 Market Street Partners, LLC, R. Christopher Zampogna,
and Peter J. Russo. Mr. Russo's obligation has been discharged through his
bankruptcy proceeding.
In June 2006, Sovereign Bank made a $200,000 loan to Defendants. Sovereign
Bank made an additional loan in June 2006 to Defendants in the amount of$340,000.
In April 2006, Sovereign Bank made a $40,000 loan to Defendants, which was later
increased to $150,000. The loans were secured by a mortgage on real estate owned by
Gator Development, LLC and by a liquor license.
Defendants defaulted on the loans in 2009. Sovereign Bank confessed judgment
against Defendants for all three loans in October 2009. For the $200,000 loan,
judgment was entered in the amount of$185,867.28 (Case No. 09-7443). For the
$340,000 loan, judgment was entered in the amount of $378,920.69 (Case No. 09-
7473). Judgment was entered in the amount of$167,536.43 for the $150,000 loan
(Case No. 09-7481).
Sovereign Bank obtained a writ of execution for the Sheriff's Sale of both the
liquor license and the real estate for Case No. 09-7443. Sovereign Bank assigned its
rights and interests in that case to PBE Companies, LLC. The Sheriff's Sale of the
4
liquor license took place in Dauphin County on August 25, 2010. Plaintiff's predecessor
was the successful bidder on the liquor license. The parties have stipulated that the fair
market value of the liquor license at the time of sale was $225,000. Plaintiff never filed
a petition to fix the fair market value of the liquor license nor provided the Sheriff with a
receipt indicating the amount of credit to be applied to the judgment.
The Sheriff's Sale of the real estate took place on September 8, 2010, in
Cumberland County. As of that date, the judgment balance in Case No. 09-7443 was
$182,091.66. Plaintiff's predecessor was also the successful bidder on the real estate.
Plaintiff also failed to file a petition to fix the fair market value of the real estate. As
stipulated by the parties, a subsequent private sale of the real estate took place on
December 22, 2011, resulting in net proceeds to Plaintiff in the amount of $77,199.26.
The sale of the liquor license and the sale of the real estate were both conducted under
the caption of Case No. 09-7443.
Sovereign Bank assigned its rights and interests for the remaining two Cases
Nos., 09-7473 and 09-7481 to PNL New Era, LLC. The parties have stipulated that the
judgment balance, as of December 22, 2011, was $455,557.25 for Case No. 09-7473,
and $192,058.83 for Case No. 09-7481. Defendants had also filed a Petition to Have
Judgment Marked Satisfied, Released and Discharged as to All Defendants in Case No.
09-7443. Both parties agreed that the judgment in that case should be satisfied and the
Petition was granted on June 20, 2013, completely satisfying the judgment for Case No.
09-7443. The parties have filed several motions in these cases, including the Petitions
to Have Judgments Marked Satisfied, Released and Discharged now before the Court.
5
Discussion
Defendants urge this Court to satisfy the remaining judgments for Case Nos. 09-
7473 and 09-7481 because Plaintiff did not follow the proper procedures under the
Deficiency Judgment Act and the Rules of Civil Procedure. Defendant argues Plaintiff
did not file a petition to fix the fair market value after the Sheriff's Sale of the liquor
license; such a petition would have shown that the fair market value was above the
judgment amount in Case No. 09-7443 and would have completely satisfied that
judgment. The sale of the real estate then continued in Case No. 09-7443, even though
that judgment should have already been satisfied by the sale of the liquor license.
Defendants argue they then lost the benefit of selling the real estate to satisfy another
judgment. Defendants maintain that the sale of the real estate was improper and
therefore Plaintiff obtained no title to the real estate and the judgments should be
satisfied.
Plaintiff argues that the security for the three loans should be treated separately,
even though it is the same property, because it was recorded separately. Plaintiff
maintains it was not required to file the petition to fix the fair market value in Case No.
09-7443 in order to preserve available claims in the remaining two cases. Plaintiff
further argues that the sale of the property for one judgment has no bearing on the other
judgments. Plaintiff has agreed, and urges this Court, to apply $120,107.71, the credit
obtained from the sale of the real estate, to reduce the judgment in Case No. 09-7473 to
$335,449.54.
6
Instead of merely reducing one of the remaining judgments, this Court has
determined that fully satisfying only the judgment in Case No. 09-7473, with the
judgment from Case No. 09-7481 remaining, is the most equitable solution. Therefore,
for the following reasons, the Petition to Have Judgment Marked Satisfied, Released
and Discharged is granted for Case No. 09-7473 and denied for Case No. 09-7481.
The Deficiency Judgment Act, 42 Pa.C.S.A. § 8103, requires that any judgment
creditor who purchases real property in connection with a Sheriff's Sale petition the
court to fix the fair market value of the real property sold if it was not sufficient to cover
the deficiency. 42 Pa. C.S.A. § 8103(a); see also Western Flour Company v. Alosi, 264
A.2d 413, 415 (Pa. Super. 1970). To ensure that the judgment debtor is receiving full
credit, a judgment creditor is also required to have the property evaluated and fix the fair
market value before proceeding against other property owned by the judgment debtor.
Western Flour, 264 A.2d at 415. If a judgment creditor fails to file such a petition, it is
assumed that the debt has been paid in full and the judgment debtor may petition to
have the judgment marked satisfied. 42 Pa. C.S.A. § 8103(d); see also Resolution
Trust Corp. v. Hook, 1993 U.S. Dist. LEXIS 21328, *4 (W. D. Pa. 1993).
Furthermore, Pennsylvania Rule of Civil Procedure 3133 provides that when
plaintiffs who are judgment creditors purchase property at a Sheriff's Sale, they should
provide to the Sheriff a receipt indicating the amount of credit to be applied to the
judgment. The Sheriff uses these receipts in order to distribute the proceeds of the sale
accordingly. See Pa.R.C.P. 3136(c)-(d).
In Western Flour, the plaintiff executed a sale of real property and failed to
comply with the Deficiency Judgment Act and have the fair market value fixed. Western
7
Flour, 264 A.2d at 414. The plaintiff then executed a sale on a second piece of property
in the same judgment. Id. The plaintiff obtained both properties in the sale. Id. at 415.
The court set aside the sale of the second property, finding that there was a
presumption the first sale completely satisfied the judgment because plaintiff failed to
follow the Deficiency Judgment Act. Id.
In Resolution Trust, the plaintiff obtained four judgments against defendants.
Resolution Trust, 1993 U.S. LEXIS at 21328 at *1. The plaintiff executed the sale of
real estate for the most junior lien and purchased the property at the Sheriff's Sale. Id.
at *2. The plaintiff did not file a petition to fix the fair market value or otherwise
determine the value of the property. Id. at *2. The court held that the sale did not
stretch to satisfy the other senior loans just because the plaintiff had failed to value the
property. Id. at *6. However, the court did find that equitable principles applied and
opened the judgment to determine the value of the real property so that the defendants
would receive all the credit they were entitled to. Id. at *7-8.
While Western Flour and Resolution Trust are both instructive in this matter,
neither case deals with the specific issue in these cases. More specifically, Western
Flour only contemplates one judgment entered against the defendants. On the other
hand, Plaintiff in the instant matter obtained three separate judgments against
defendants. Therefore, the second sale of the real estate would be better used towards
satisfying another judgment and not merely set aside. Furthermore, it would be
impractical for this Court to set aside the Sheriff's Sale of real property that occurred
over three years ago and has been subsequently resold.
8
Similarly, while Resolution Trust contemplated multiple judgments, similar to the
instant matter, the court was not faced with the sale of more than one property securing
those judgments. Therefore, once the value of the property is determined in Resolution
Trust, it will be practical to merely apply any credit toward another judgment. However,
in the instant matter, merely applying the credit to Case No. 09-7473, as Plaintiff urges,
would not be entirely accurate. If, for example, Case No. 09-7443 was satisfied by the
sale of the liquor license, as it should have been, the sale of the real estate would have
been conducted under Case No. 09-7473. Based on the fact that Plaintiff failed to file a
petition to fix the fair market value after the first sale of the liquor license, there is a
strong assumption that Plaintiff would have also failed to file this petition for the sale of
the real estate, which would have had the effect of completely satisfying the judgment in
Case No. 09-7473. See Resolution Trust, 1993 U.S. Dist. LEXIS 21328 at *4. It is for
this reason that this Court determines in equity, the judgment in Case No. 09-7473 to be
marked satisfied.
In light of the fact that Resolution Trust held that the execution sale of property
made under one judgment could not satisfy all judgments between the parties, this
Court determines that the judgment in Case No. 09-7481 will not be marked satisfied.
Defendants borrowed and/or guaranteed these loans, knowing they would have to be
paid back. Furthermore, Defendants were provided notice of the Sheriff Sales and
could have filed a petition to have the judgments marked satisfied much earlier, when
this Court would have been in a better position to deal with the improper sale of the real
estate. Instead, Defendants have waited almost three years after the sales to file these
petitions, long after the liquor license and real estate were resold to a third party.
9
In light of general equitable principles and in the interest of fairness to both
parties, the Petition to Have Judgment Marked Satisfied, Released and Discharged as
to All Defendants is granted for Case No. 09-7473 and is denied for Case No. 09-7481.
Accordingly, the following order will be entered:
IN RE: PETITION TO HAVE JUDGMENT MARKED SATISFIED, RELEASED AND
DISCHARGED AS TO ALL DEFENDANTS AND FOR RULE TO SHOW CAUSE
ORDER OF COURT
AND NOW this 25th day of November, 2013, after consideration of the Petitions
to Have Judgment Marked Satisfied, Released and Discharged as to All Defendants
and for Rule to Show Cause in the above captioned cases, Petitioner's Response,
hearing held on July 28, 2013, and after review of the parties' briefs;
IT IS HEREBY ORDERED AND DIRECTED that the Petition to Have Judgment
Marked Satisfied, Released and Discharged as to All Defendants is GRANTED in Case
No. 09-7473. The Prothonotary is directed to mark the judgment in case 09-7473
satisfied, released and discharged as to Petitioners and Defendants.
IT IS HEREBY FURTHER ORDERED AND DIRECTED that the Petition to Have
Judgment Marked Satisfied, Released and Discharged as to All Defendants is DENIED
in Case No. 09-7481.
By the Court,
M. L. Ebert, Jr., J.
10
Jack Seitz, Esquire
Attorney for Plaintiff
One Windsor Plaza
7535 Windsor Drive
Suite 200
Allentown, PA 18195
Joseph Goldberg, Esquire
Attorney for Defendants
2080 Linglestown Road
Harrisburg, PA 17110
11
PNL NEW ERA, LLC, Use plaintiff, : IN THE COURT OF COMMON PLEAS
Plaintiff/Petitioner : OF CUMBERLAND COUNTY,
: PENNSYLVANIA
v.
: CIVIL ACTION — LAW
401 MARKET STREET PARTNERS, : CONFESSION OF JUDGMENT
LLC, GATOR DEVELOPMENT, LLC,
and R. CHRISTOPHER ZAMPOGNA, : No. 09-7481 Civil Term
Defendants/Respondents
•
and
•
•
CAPO ASSOCIATES, LLC, CJ2
GROUP, LLC, GUIDO GROUP, LLC and :
GATOR DEVELOPMENT GROUP, LLC, :
Additional Respondents
IN RE: PLAINTIFF'S PETITION FOR THE ISSUANCE OF A CHARGING ORDER
AGAINST R. CHRISTOPHER ZAMPOGNA PURSUANT TO Pa.R.C.P. 3118
ORDER OF COURT
AND NOW this 25th day of November, 2013, upon consideration of Plaintiff's
Petition for the Issuance of a Charging Order Against Respondent R. Christopher
Zampogna in CAPO Associates, LLC, CJ2 Group, LLC, Guido Group, LLC, and Gator
Development Group, LLC, pursuant to Pa.R.C.P. 3118, after reviewing the briefs filed
by the parties, and after hearing held on June 28, 2013,
IT IS HEREBY ORDERED AND DIRECTED that the Petition is GRANTED in
favor of Plaintiff and against all additional respondents except Gator Development
Group, LLC.'
The parties have stipulated that Defendant Zampogna's interest in Gator Development Group,LLC is owned as
entireties with his wife and therefore a charging order cannot be issued against that company.
IT IS HEREBY FURTHER ORDERED AND DIRECTED that a charging order is
hereby entered in favor of Plaintiff and against Defendant Zampogna and all Additional
Respondents, with the exception of Gator Development Group, LLC, transferring and
assigning to Plaintiff all of Defendant Zampogna's economic and financial rights and
entitlements with respect to his membership in CAPO Associates, LLC, CJ2 Group,
LLC, and Guido Group, LLC;
IT IS HEREBY FURTHER ORDERED AND DIRECTED that without limiting the
generality of the foregoing, Respondent Zampogna and CAPO Associates, LLC, CJ2
Group, LLC, and Guido Group, LLC, are barred and precluded from paying any monies
to Respondent Zampogna by way of return of investment, distribution on his capital
account, or any other distributions to said Respondent, arising out of, or relating to, or
connected with his membership interests in CAPO Associates, LLC, CJ2 Group, LLC,
and Guido Group, LLC, and instead, all such money shall be paid to Plaintiff until the full
amount of the judgment owed in this proceeding is satisfied.
IT IS HEREBY FURTHER ORDERED AND DIRECTED that Plaintiff shall
provide notice of the entry of this Order to Respondents and Additional Respondents.
By the Court,
\\ \-tN
I
V
M. L. Ebert, Jr., U J.
Jack Seitz, Esquire
Attorney for Plaintiff W —`
One Windsor Plaza
7535 Windsor Drive ,c_
Suite 200
;7) ---' _
Allentown, PA 18195 t -6-
vC)
C- N mat
rt
Joseph Goldberg, Esquire
Attorney for Defendants
2080 Linglestown Road
Harrisburg, PA 17110
pka, led lib."7//3
SOVEREIGN BANK, : IN THE COURT OF COMMON PLEAS
Plaintiff : OF CUMBERLAND COUNTY,
: PENNSYLVANIA
v.
: CIVIL ACTION - LAW
GATOR DEVELOPMENT, LLC, 401 : CONFESSION OF JUDGMENT
MARKET STREET PARTNERS,LLC,
PETER J. RUSSO, an adult individual, : No. 09-7481 Civil Term
and R. CHRISTOPHER ZAMPOGNA, an :
adult individual
Defendants •
•
IN RE: PETITION OF R. CHRISTOPHER ZAMPOGNA TO CONFORM JUDGMENT
TO GUARANTY DOCUMENTS
ORDER OF COURT
AND NOW this 25th day of November, 2013, upon consideration of the Petition of
R. Christopher Zampogna to Conform Judgment to Guaranty Documents, the briefs
filed by the parties, and after hearing held on June 28, 2013;
IT IS HEREBY ORDERED AND DIRECTED THAT the Petition is DENIED.
By the Court,
\\1\1\‘._1_4\___
M. L. Ebert, Jr. (-)J.
im,
Jack Seitz, Esquire r EN) 73 ra,
Attorney for Plaintiff
One Windsor Plaza -v ;-w-
7535 Windsor Drive zc
Suite 200 na
Allentown, PA 18195
/Joseph Goldberg, Esquire
Attorney for Defendants
2080 Linglestown Road
Harrisburg, PA 17110
C'o,0;cs "Jed l��.7/j
/cam
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
PNL NEW ERA, LLC,
Plaintiff
v.
401 MARKET STREET PARTNERS, LLC,
GATOR DEVELOPMENT, LLC, and
R. CHRISTOPHER ZAMPOGNA,
Defendants
Civil Action No. 09-7481
Confession of Judgment
PRAECIPE TO RELEASE JUDGMENT AS TO R. CHRISTOPHER ZAMPOGNA
To the Prothonotary:
Please indicate on your records that Plaintiff hereby RELEASES Defendant
R. Christopher Zampogna from Plaintiff's judgment.
This is not a satisfaction of judgment. Plaintiff's release of R. Christopher Zampgona is
WITHOUT PREJUDICE to and does not affect Plaintiff's right to enforce its judgment as to the
other Defendants.
LESAVOY e . Z : EITZ LLC
Jack M. S
Attorn
Zach. y J. Co n, Esquire
Atto ' o. 91119
One Windsor Plaza
7535 Windsor Drive, Suite 200
Allentown, PA 18195
(610) 530-2700
Attorneys for Plaintiff
oosk 44,P so -A
C1L141vulo.
CERTIFICATE OF SERVICE
I hereby certify that on May ((I , 2014 I served a true and correct copy of the foregoing
praecipe via first class mail upon:
Joseph K. Goldberg, Esquire
2080 Linglestown Road
Suite 106
Harrisburg, PA 17110
R. Christopher Zampogna
5 Saratoga Place
Mechanicsburg; PA 17011
LESAVOY BUTZ & SEITZ LLC
Jack M. Sei
Attorney
Zachar
Attorn
, Esquire
o. 37026
J. Cohe
y No.
119
squire
One - • sor Plaza
7535 Windsor Drive, Suite 200
Allentown, PA 18195
(610) 530-2700
Attorneys for Plaintiff