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HomeMy WebLinkAbout10-7759O T EiPF? tai ?i',-, ' I) j1 r liJ Lf-C 17 PL;.7'v?yJ s ?t?a?Sjil?.q Brian W. Carter, Esquire bcarter2walaw.com I.D. No. 204934 Michael E. Adler, Esquire madlerna,wglaw.com I.D. No. 82205 Weber Gallagher Simpson Stapleton Fires & Newby, LLP The Fulton Bank Building 200 North Third Street, Suite 9A Harrisburg, PA 17101 T: (717) 237-6945 F: (717) 237-6949 Manufacturers and Traders Trust Co. Plaintiff vs. Alpine Coal Company, Inc. and Mark J. Rodak Defendants Attorneys for Plaintiff, Manufacturers and Traders Trust Co. Court of Common Pleas of Cumberland County, Pennsylvania : Civil Action - Law : No. CONFESSION OF JUDGMENT UNDER PA. R.C.P. § 2951 Pursuant to the authority contained in the warrant of attorney, a copy of which is attached to the complaint filed in this action, I appear for the Defendants Alpine Coal Company, Inc. and Mark J. Rodak confess judgment in favor of the Plaintiff Manufacturers and Traders Trust Co., and against Defendants Alpine Coal Company, Inc. and Mark J. Rodak as follows: Principal: $ 98,166.76 Interest at 14.90% $ 8,936.37 Authorized Attorney's Fees $ 10,724.31 Other Authorized Items: Late Charges $ 140.00 Total: $117,967.44 a a?l$ Attorney'for Defendants BRIAN W. CARTER, ESQUIRE bcarterAwglaw.com I.D. No. 204934 Weber Gallagher Simpson Stapleton Fires & Newby, LLP The Fulton Bank Building 200 North Third Street, Suite 9A Harrisburg, PA 17101 T: (717) 237-6945 F: (717) 237-6949 MANUFACTURERS AND TRADERS TRUST CO. Plaintiff VS. ALPINE COAL COMPANY, INC. AND MARK J. RODAK, Defendants Attorneys for Plaintiff, Manufacturers and Traders Trust Co. Court of Common Pleas of Cumberland County, Pennsylvania Civil Action - Law No. 10 .-'77 n1 ?u . COMPLAINT CONFESSION OF JUDGMENT UNDER PA. R.C.P. § 2951 1. 2 3 4 Manufacturers and Traders Trust Co. (Plaintiff), with its principle place of business at 1100 Wehrle Drive, Ground Floor, Williamsville, New York 14221. Alpine Coal Company, Inc. (Alpine) is a business with a last known address being 3920 Market Street, Camp Hill, Pennsylvania, 17011. Mark J. Rodak (Rodak) is an individual with a last known address being 25 North 191, Street, Camp Hill, Pennsylvania, 17011. On or about February 9, 2005, Alpine executed a Business Access Line of Credit Note with Plaintiff for $100,000.00. A true and correct copy of the Line of Credit Note is attached as Exhibit 1. This Business Access Line of Credit Note included a Disclosure for Confession of Judgment, a true and correct copy of which is included with Exhibit 1. 5. On or about February 2, 2002, Rodak executed a Continuing Personal Guaranty, which was incorporated into the February 9, 2005, Line of Credit Note, wherein he personally guaranteed and promised to promptly perform Alpine's obligations under the Line of Credit Note. A true and correct copy of the Individual Guaranty is attached as Exhibit 2. The Continuing Personal Guaranty included a Disclosure for Confession of Judgment Guarantor and a true and correct copy of which is included with Exhibit 2. 6. Judgment is not being entered by confession against a natural person in connection with a consumer credit transaction. 7. Judgment has not been entered on the instrument in any jurisdiction. 8. The occurrence of a condition precedent is not required for judgment. 9. An itemized computation of the amount now due is attached as Exhibit 3. 10. The instrument authorizing confession of judgment is less than 20 years old. WHEREFORE, Plaintiff demands the following relief: 11. Judgment be entered in favor of Plaintiff and against Defendants in the amount of $107,24.313. Dated: T)OC 101- 2DIC) Respectfully submitted, Weber Gallagher Simpson Stapleton Fires & Newby, LLP B Bri W.eesquire Attorneys for Plaintiff EXHIBIT 1 &T,Pank MenufechnpraandTraderaTrust Company BUSINESS ACCESS LINE OF CREDIT NOTE February QO% 2005 Pennsylvania BORROWER: ALPINE COAL COMPANY, iNC., a co $100,000.00 Address of residence/chief executive office: 3920 Marko Street, Camp Hilt, Pennsylvania 17011 ennsylvania BANK: MANUFACTURERS AND TRADERS TRUST COMPANY, a New York banking corporation with banking Buffalo, New York 14240 Attention: Office of General Counsel offices at One M&T Plaza. You, intending to be legally bound, hereby agree as follows: 1. Definitions. Each capitalized term shall have the meaning specified herein and the following terms shall have the indicated meanings: a• "Account" means the Business Line of Credit established in your name. b.. "Account Balance" means the total of Loans, Annual Fees, late charges, over-the-limit charges, Interest, amounts posted to and owing under your Account or this Note. C. "Applicable Rate" means the Introductory Rate for the Introductory Period and upon expiration finance charges and any other automatically mean and change to 1.5 percentage points above the Bank's prime rate of interest. ("Prime Rate"). After the expiration of the Introductory Period, any change In the Prime Rate shall be effective on the first day of youtnt hung Period Period shalt In the calendar quarter after such change in the Prime Rate occurs. *See Rider A attached hereto and ma d• "Authorized Person" shall mean, each individually, Mark J. Radek, President. Mention of the Authorized Y r Billing occurring reference only de apart hereof. Purposes oni and we may rely on a person's title to ascertain whether someone Is an Authorized Person, name is for e• "BIlltng Period" means any period of approximately a month at the end of which we compute the amount to be Mined under Person's yourAccount. f "Checking Account" means any commercial checking or NOW account with us which you have requested overdraft protection. t for 9• "Credit Line" means the credit limit for your Account and is ONE HUNDRED THOUSAND DOLLARS led be linked to the e Account for h• "introductory Period" means the period commencing on the date of this Note and ending on the numerically Is no numerically corresponding day, on the last day) of the calendar month that Is AND NO CENTS ($100,000.00). corresponding day (or if ? six months thereafter, I. "Introductory Rate" means the Prime Rate. For the Introductory Period, any change In the Prime Rat such change is published, or If not published, on the date such change is announced by the Bnk. Rate shall be effective on the date ! J. "Line of Credit Check" means any direct loan check that is issued by the Bank for use with your Accou k• "Loan" means any amount of credit obtained under your Account and In any other way including b a nt. 1 to and owing under your Account. Y Line of Credit Check and posted I. "Minimum Repayment Fraction" means 1/36 of the outstanding principal amount of all Loans at the end of the last day any Loan was M. "Periodic Rate" means the Applicable Rate in effect on the day of calculation divided by 365. n. "We", "us", "our", ,ours* and "Bank" means Manufacturers and Traders Trust Company, a New York banking banking office at One M S T Plaza, Buffalo, NY 14240. Attention: Office of General Counsel. i °' 'You", "Your" and 'Borrower' means the person or business who signs below. with Its principal 2. Credit Line and Loans. a• We may make any Loan to you in reliance upon any oral, telephonic writtin good faith believe to be valid and to have been made b en, teletransmitted or other request (the "Request(s)") that we by you or on behalf of you by an Authorized Person. We may act on the Request of any Authorized Person until we have received from you, and had a reasonable time to act on, written notice revoking Authorized Person. Without limiting the generality of the foregoing, you shall be Check, sending us instructions by using an M&T Quick8ank ATM card or Business Check card linked to your ti the authority of such at any Bank electronic facilities, via MST Ont_ine or by any other electronic means If the Checking to have Account a Loan by using a Line of Credit the Checkin Xotection you authorize us to make a Loan and deposit it into the Checking Account, without your notice to or consent, if is our ed to your together Account for overdraft Account uai Checking Account and (t( the din labithfundm t tiions,Checkin j checks, fees or services charges) t you withdraw funds o aka to a transfer alo er I ransfer. The amount of such Loan sha in Account are not all not be less than the difference between (i) the amount of available funds In fi) the amount necessary, to pay the Item presented against the Checking Account or to effecren to pay such item or make the withdrawal or of have to, treat all credits obtained under your Account during any day In ways described In this paragraph as the Checking Account and o liability to you or to any other person as a direct or indirect result of making any Loan pursuant to this paragraph. al or transfer. are can, but will nd all amounts are due upon demand. You hereby waive protest, resentment and notice of any a single Loan. We shall incur ? 3nsidered made on the date we post It to the Accunt. p All Loans are discretionary b. You agree all Loans will be for business purposes only and not to request a Loan: (!)which kind in connection with this Note. A Loan is !I e Credit Line; or (ii) as a payment on what you owe to the Bank on the Account or pay any other indebtedness from our affiliates existing now or coming into existence in the future. lfyourAccount Balance ever exo our C i us the excess. you to the Bank or any y redlt Line, you shall immediately 3.178 ardPac-PA 111/01) MA . - - --• ' a. Promise to Pay. For value received, you promise to pay to the order of the Bank on demand, your Account Balance and all fees, charges and Expenses. You can pay your Account Balance in full at any time without penalty, or, you can pay it In Installments. All payments must be in Uniteu'States funds. b. Payments. You shall make payments to us as follows: Minimum Payment. Absent demand for repayment in full, you shall pay, by the due date shown on any statement for your Account, at least the minimum payment shown on the statement. The minimum payment will be the total of. 1. The Minimum Repayment Fraction but at least the lesser of (a) $10 or (b) the outstanding principal amount of all Loans at the end of the Billing Period; H. All charges for annual fees, late-charges, over-the-iimit charges, charges for unpaid checks, dishonored check charges, Expenses, and finance charges posted to your Account during the Billing Period; and Ill. The minimum payment shown on the preceding statement for your Account to the extent that it remains unpaid at the end of the Billing Period. Inclusion in the minimum payment of this item (ill) will not give you any additional time to pay them, and they will remain immediately due. Paying more than the minimum payment will not relieve you of the obligation to pay any minimum payment shown on any future statements for your Account. 4. Default Rate. If you fail to pay any amount under this Note when due, we may in our sole discretion, increase the Applicable Rate to 5 percentage points per year above the otherwise applicable rate per year (the "Default Rate") and any Judgment entered hereon or otherwise In connection with any suit to collect amounts due hereunder shall bear interest at such Default Rate. I 5. Finance Charges. a. Accrual of Finance Charges. Finance charges will begin to accrue on any amount Included in your Account Balance on the day it is posted to your Account. b. Computation of Finance Charges. The finance charge will be figured this way: i (1) Each day in the Billing Period, we will start with yourAccount Balance at the beginning of that day. We will add to it ail Loans posted to your Account that day and subtract from it all payments and credits posted to your Account that day and all charges for Annual Fees, late charges, over-the-limit charges, charges for unpaid Line of Credit Checks, dishonored check charges and finance charges included in your Account Balance after the application of the payments and credits to your Account Balance. The result will be the total of loans included in your Account Balance for that day. (2) Each day in the Billing Period, we will multiply the total of Loans included in your Account Balance for that day by the Periodic Rate in effect on that day for Loans. The result will be the finance charge for Loans for that day. (3) We will add up the finance charges for Loans for all the days in the Billing Period. If your account also acts as an overdraft line of credit fora Checking Account, the loan service charge for advances made to prevent overdrawing your checking account, will remain i for each Loan posted at $1.00 but only for overdraft loans. We may change the overdraft charge from time to time in our sole discretion. c. Maximum Legal Rate. The maximum Interest rate charged under this Note shall in no event exceed the maximum rate permitted by i applicable law (the "Maximum Legal Rate"). Solely to the extent necessary to prevent interest under this Note from exceeding the Maximum Legal Rate, any amount that would be treated as excessive under a final judicial interpretation of applicable law shall be deemed to have been a mistake and automatically canceled, and, if received by us, shall be refunded to you. 5. Fees, Charges and Expenses. You agree to pay on demand (1) all applicable fees and charges as set forth below and as may be changed from time to time at our sole discretion, and (ii) the Expenses as defined below: a. Annual Fee. You Wit pay a non-refundable Annual Fee of $250.00. This is a fee for the convenience of having your Account and not ? r fee you pay in exchange for having a specified amount of credit available under your Account for a specified period of time. This fee will be )filed to your Account each year as long as your Account remains open, whether or not credit is obtained under your Account. b. Late Charges. If the minimum payment shown on any statement for your Account is overdue for 10 or more days, you must pay a late :harge which shall be either of the following as we may select in our discretion (1) $20 or (ii) 5% of such minimum payment shown on a statement ? or your Account; provided, however, that any excess collected by mistake shall be refunded on request, and each such late charge shall be eparetely charged and collected by the Bank. c. Over-the-Limit Charges. If your Account Balance exceeds your Credit Line at any time during any Billing Period, you must pay an I ver-the-limit charge of $20 for the Billing Period. d. Charges for Unpaid Line of Credit Checks. For each Line of Credit Check that we do not pay because you are in violation of, or our paying rat Line of Credit Check would cause you to be in violation of, any provision of this Note, you must pay a charge of $20 for that Line of Credit , heck. e. Dishonored Check Charges. If you use a check to pay any amount owing under your Account and the check is not paid, you must pay dishonored check charge not in excess of the amount permitted by applicable law, f. Expenses. You shall pay on demand, all costs and expenses incurred by us from time to time with regard to this Note (including without natation attomeys' fees and disbursements whether for Internal or outside counsel), negotiating or documenting a workout or restructuring, i preserving its rights or realizing upon any guaranty or other security for the payment of this Note ("Expenses"). Application and Crediting of Payments. a. Application. Payments may be applied in any order In our sole discretion but, prior to demand, we will apply any payment posted to your :count during any Billing Period to your Account Balance at the beginning of the Billing Period In the following order: (1) finance charges for fans, (2) charges for unpaid Line of Credit Checks and dishonored check charges, (3) annual fees, (4) late charges and over-the limit charges, 1 VI I L I it$ aiaternent Tor your Account Tor the preceding billing Period, and (7) new Loans. b. Crediting. Except to the extent required by applicable law; any payment we receive for application to your Account Balance need not be posted ti; your Account or considered to have been made until the fifth day after the date we receive it unless it is (1) made, in United States funds, In cash delivered in person or by account-specific check or money order payable to the orderof the Bank, (2) accompanied by a payment stub for your Account and (3) received by us at the payment address set forth on your statement or at any branch office of the Bank. 8. Bank Records Conclusive. We will maintain on computer, the date and original principal amount of each Loan and your Account Balance. The Account Balance so maintained shall be presumptive evidence of the Account Balance under this Note. No failure by the Bank to make, and no error by the Bank in making, any annotation on any such computer shall affect your obligation to pay the Account Balance or any other obligation hereunder. 9. Setoff. We shall have the right to set off against the amounts owing under this Note any property held in a deposit or other account with us or any of our affiliates or otherwise owing by us or any of our affiliates in any capacity to you or any guarantor or endorser of this Note. Such set-off shall be deemed to have been exercised immediately at the time the Bank or such affiliate elect to do so. 10. Financial and Other Information. If you change the address or mailing address, change the name, organization or ownership of the business, or If there is any unfavorable change in your financial condition you must promptly notify us in writing of the change. Whenever we ask you to do so, you must submit to us business and/or personal financial statements in a form satisfactory to us. 11. Cancellation, Modification, Suspension or Other Limitation. You can cancel your Account at any time by notifying us in writing. The cancellation will not take effect until we receive the notice and have a reasonable time to act on it. The Account is available subject to our continuing review and right of cancellation, modification, suspension or other limitation at anytime and for any reason without any notice to you. The cancellation, modification, suspension or other limitation will take effect immediately unless we decide to have it take effect later. If you cancel your Account or learn that we have canceled it, you must stop using it, prohibit further use of it and return to us all unused Line of Credit Checks. If you learn that we have suspended your Account, you must stop using It and prohibit further use of it. If you learn that we have placed any other limitation on your Account, you must use it only in accordance with that limitation and prohibit its use except in accordance with that limitation. Cancellation of your Account by you or cancellation, modification, suspension or other limitation of your Account by us will not affect any of your obligations under this Note. 12. Line of Credit Checks Our Property. Each Line of Credit Check is and will remain our property and, upon our request, must be returned to us. 13. Statements; Lost Line of Credit Checks. Any statement for your Account will be sent to your current mailing address shown in our records concerning your Account. Any notice you send us concerning any loss, theft or possible unauthorized use of any Line of Credit Check must be sent to MST Bank, P.O. Box 1303 Buffalo, New York 14240-4091. 14. Notices. Any demand or notice hereunder or under any applicable law pertaining hereto shall be In writing and duly given If delivered to Borrower (at its address on the Bank's records) or to the Bank (at the address on page one and separately to the Bank officer responsible for Borrower's relationship with the Bank). Such notice or demand shall be deemed sufficlently given for all purposes when delivered (€) by personal delivery and shall be deemed effective when delivered, or (11) by mail or courier and shall be deemed effective three (3) business days after deposit in an official depository maintained by the United States Post Office for the collection of mail or one (1) business day after delivery to a nationally recognized overnight courier service (e.g., Federal Express). Notice by e-mail is not valid notice under this or any other agreement between Borrower and the Bank. 15. Stopping Payment of Line of Credit Check. You can order us not to pay any Line of Credit Check even if the Line of Credit Check was signed by someone else. We will not have to follow the order unless it includes (1) yourAccount number, (2) the exact amount, date and number (if any) of the Line of Credit Check, (3) the name, exactly as It appears on the Line of Credit Check, of everyone to whose order the Line of Credit Check is payable and (4) the name, exactly as It appears on the tine of Credit Check, of the person who signed the Line of Credit Check. We Nill not have to follow the order until we have a reasonable time to record it against your Account. We can, but we will not have to, treat more than three orders not to pay a Line of Credit Check as effective at any time. You can cancel any order not to pay a Line of Credit Check even f the order was given by someone also. We will not have to follow the cancellation unless it is in writing and until we have had a reasonable Jme to record it against your Account. We will in good faith try (1) not to pay any Line of Credit Check that we have been properly ordered not o pay and (2) to pay any Line of Credit Check for which an order not to pay has been properly canceled. We may be responsible if we fall to merclse ordinary care to (1) avoid paying any Line of Credit Check that we have been properly ordered not to pay or (2) follow the proper ,ancellation of any order not to pay a Line of Credit Check. We will have exercised that ordinary care if (1) we act in good faith, (2) we have t reasonable system for communicating orders of that type and cancellation of orders of that type to our employees and agents who would be Ikely to receive the Line of Credit Check and (3) we reasonably follow the system as a matter of routine. 16. Changes. Except as set forth below, no change in this Note or waiver of any right or remedy hereunder can be made except in a writing .igned by us. No course of dealing or other conduct, no oral agreement or representation made by us, Bank, and no usage of trade, shall ?perate as a waiver of any right or remedy of the Bank. No waiver of any right or remedy of the Bank shall be effective unless made specifically i writing by the Bank. Except to the extent prohibited by applicable law, from time to time In our sole discretion we can change (1) any term of his Note, (ii) any aspect of your Account and (11) any fee or other charge applicable to yourAccount Including, without limitation, the Annual Fee, he Late Charges, the Over-the Limit Charges, and the Dishonored Check Charges. In connection with any changes due to operational and schnological changes or changes in law, such change shall be effective immediately and otherwise 30 days after notice is given. Your use of ie Credit Line after being provided with notice of any change shall be deemed acceptance of the terms and conditions of such change. 7. Miscellaneous. This Note, together with any related loan and security agreements and guaranties, contains the entire agreement between ou and the Bank with respect to the Note, and supersedes every course of dealing, other conduct, oral agreement and representation previously Lade by us. AA rights and remedies of the Bank under applicable law and this Note or amendment of any provision of this Note are cumulative nd not exclusive. No single, partial or delayed exercise by the Bank of any right or remedy shall preclude the subsequent exercise by the Bank It anytime of any right or remedy of the Bank without notice. You agree that in any legal proceeding, a copy of this Note kept in the Bank's nurse of business may be admitted into evidence as an original. This Note is a binding obligation enforceable against Borrower and its uccessors and assigns and shall inure to the benefit of the Bank and Its successors and assigns. If a court deems any provision of this Note _3__. yU11u01 olmuuva l1 IPJVulfll0 01/u 101111111110 00 applu1111ata. 18. Joint and Several. If there is more than one Borrower, each of them shall be jointly and severally liable for all amounts which become due under this Note and the term "Borrower", "you" and 'your' shall include each as well as all of them. 19. Governing Law; Jurisdiction. This Note has been delivered to and accepted by the Bank and will be deemed to be made in the Commonwealth of Pennsylvania. Unless provided otherwise under federal law, this Note will be Interpreted in accordance with the laws of the Commonwealth of Pennsylvania excluding its conflict of laws rules. BORROWER HEREBY IRREVOCABLY CONSENTS TO THE EXCLUSIVE JURISDICTION OF ANY STATE OR FEDERAL COURT IN THE COMMONWEALTH OF PENNSYLVANIA IN A COUNTY OR JUDICIAL DISTRICT WHERE THE BANK MAINTAINS A BRANCH AND CONSENTS THAT THE BANK MAY EFFECT ANY SERVICE OF PROCESS IN THE MANNER AND AT BORROWER'S ADDRESS SET FORTH ABOVE FOR PROVIDING NOTICE OR DEMAND; PROVIDED THAT NOTHING CONTAINED IN THIS NOTE WILL PREVENT THE BANK FROM BRINGING ANY ACTION, ENFORCING ANY AWARD OR JUDGMENT OR EXERCISING ANY RIGHTS AGAINST BORROWER INDIVIDUALLY, AGAINST ANY SECURITY OR AGAINST ANY PROPERTY OF BORROWER WITHIN ANY OTHER COUNTY, STATE OR OTHER FOREIGN OR DOMESTIC JURISDICTION. Borrower acknowledges and agrees that the venue provided above Is the most convenient forum for both the Bank and Borrower. Borrower waives any objection to venue and any objection based on a more convenient forum in any action instituted under this Note. 20. Waiver of Jury Trial. YOU AND THE BANK HEREBY KNOWINGLY, VOLUNTARILY, AND INTENTIONALLY WAIVE ANY RIGHT TO TRIAL BY JURY YOU AND THE BANK MAY HAVE IN ANY ACTION OR PROCEEDING, IN LAW OR IN EQUITY, IN CONNECTION WITH THIS NOTE OR THE TRANSACTIONS RELATED HERETO. YOU REPRESENTANO WARRANTTHAT NO REPRESENTATIVE OR AGENT OF THE BANK HAS REPRESENTED, EXPRESSLYOR OTHERWISE, THAT THE BANK WILL NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THIS JURY TRIAL WAIVER. YOU ACKNOWLEDGE THAT THE BANK HAS BEEN INDUCED TO ENTER INTO THIS NOTE BY, AMONG OTHER THINGS, THE PROVISIONS OF THIS SECTION. 21. Power to Confess Judgment. BORROWER HEREBY EMPOWERS ANY ATTORNEY OF ANY COURT OF RECORD TO APPEAR FOR BORROWER AND, WITH OR WITHOUT COMPLAINT FILED, CONFESS JUDGMENT, OR A SERIES OF JUDGMENTS, AGAINST BORROWER IN FAVOR OF THE BANK OR ANY HOLDER HEREOF FOR THE ENTIRE PRINCIPAL BALANCE OF THIS NOTE, ALL ACCRUED INTEREST AND ALL OTHER AMOUNTS DUE HEREUNDER, TOGETHER WITH COSTS OF SUIT AND AN ATTORNEY'S COMMISSION OF THE GREATER OF TEN PERCENT (10%) OF SUCH PRINCIPAL AND INTEREST OR $1,000 ADDED AS A REASONABLE ATTORNEY'S FEE, AND FOR DOING SO THIS NOTE OR A COPY VERIFIED BY AFFIDAVIT SHALL BE A SUFFICIENT WARRANT. BORROWER HEREBY FOREVER WAIVES AND RELEASES ALL ERRORS IN SAID PROCEEDINGS AND ALL RIGHTS OF APPEAL AND ALL RELIEF FROM ANY AND ALL APPRAISEMENT, STAY OR EXEMPTION LAWS OF ANY STATE NOW IN FORCE OR HEREAFTER ENACTED. INTEREST ON ANY SUCH JUDGMENT SHALL ACCRUE AT THE DEFAULT RATE. NO SINGLE EXERCISE OF THE FOREGOING POWER TO CONFESSJUDGMENT, OR A SERIES OFJUDGMENTS, SHALL BE DEEMED TO EXHAUST THE POWER, WHETHER OR NOT ANY SUCH EXERCISE SHALL BE HELD BY ANY COURT TO BE INVALID, VOIDABLE, OR VOID, BUT THE POWER SHALL CONTINUE UNDIMINISHED AND IT MAY BE EXERCISED FROM TIME TO TIME AS OFTEN AS THE BANK SHALL ELECT UNTIL SUCH TIME AS THE BANK SHALL HAVE RECEIVED PAYMENT IN FULL OF THE DEBT, INTEREST AND COSTS. Amended and Restated Note. The Borrower acknowledges, agrees and understands that this Note is given in replacement of and in substitution for, but not in payment of, a note dated on or about February 5, 2002 in the original principal amount of $70,000.00 Issued by ALPINE COAL COMPANY, INC. to the Bank (or its predecessor in interest), as the some may have been amended or modified from time to time ("Prior Note"), and further, that: (a) the obligations of the Borrower as evidenced by the Prior Note shall continue in full force and effect, as amended and restated by this Note, all of such obligations being hereby ratified and confirmed by the Borrower; (b) any and all liens, pledges, assignments and security Interests securing the Borrower's obligations under the Prior Note shall continue in full force and effect, are hereby ratified and confirmed by the Borrower, and are hereby acknowledged by the Borrower to secure, among other things, all of the Borrower's obligations to the Bank under this Note, with the same priority, operation and effect as that relating to the obligations under the Prior Note; and (c) nothing herein contained shall be construed to extinguish, release, or discharge, or constitute, create, or effect a novation of, or an agreement to extinguish, the obligations of the Borrower with respect to the indebtedness originally described In the Prior Note or any of the liens, pledges, assignments and security interests securing such obligations. Preauthorized Transfers from Deposit Account. If a deposit account number is provided in the following blank Borrower hereby authorizes the Bank to debit available funds in Borrower's deposit account # with the Bank automatically for any amount which becomes due under this Note or as directed by an Authorized Person, by telephone. Acknowledgment. Borrower acknowledges that it has read and understands all the provisions of this Note, including the Confession of Judgment, Governing Law, Jurisdiction and Waiver of Jury Trial, and has been advised by counsel as necessary or appropriate. Tax ID/SS# 23-2572537 ALPINE , By: J. R s t Signature of Witness: Typed Name of Witness: FOR BANK USE ONLY Authorization Confirmed: I requlr Per Credit Policy anus Section 4. 15. 1 U. paragraph RIDER A . , Rate Reduction for Business Access Line of Credit Note ("Note") You have executed and delivered to us a Business Access Line of Credit (the "Note"). This Rider is attached to and made a pan: of the Note. Unless defined herein otherwise, all capitalized terms in this Rider shall have the same meanings as in the Note. The Note provides for an Introductory Rate and, after the expiration of the Introductory Rate, for the applicable rate to automatically increase to a higher standard Interest rate (the "Standard Rate"). You have agreed that the payments due under the Note shall be made by an automatic deduction from a designated Bank business checking account (the "Designated Account"). In exchange for keeping the average available balance In the Designated Account equal to or greater than $10,000 and for having your payments made by automatic deduction, we have agreed to have the Standard Rate under the Note reduced by 0.5 percentage points (the "Rate Reduction") subject to the following: • Once the Introductory Rate has expired, the Standard Rate will be reduced by the Rate Reduction until the occurrence of one or more of the following events (any, a "Termination Event"): (€) the average available balance In the Designated Account for the Introductory Period, and for each six month period thereafter, fails to be equal to or greater than $10,000; (€€) payments under the Note via the automatic deduction described above are terminated, suspended or modified for any reason whatsoever, Including, without limitation, the closing of the Designated Account or the revocation of authorization for the automatic deduction; (III) you fail to pay when due (whether upon demand, by acceleration or otherwise) any amount due under the Note or that you have otherwise defaulted on your obligations under the Note or your agreements with us or any of our affiliates; or (N) you commence, or have commenced against you, any proceeding or request for relief under any bankruptcy, insolvency or similar laws now or hereafter in effect in the United States of America or any state or territory thereof or any foreign jurisdiction or any formal or informal proceeding for the dissolution or liquidation of, settlement of claims against or winding up of your affairs. • Upon the occurrence of any Termination Event, the Rate Reduction shall automatically terminate without further notice to you and interest thereafter shall accrue at the Standard Rate. Any default rate under the Note shall be based on the Standard Rate without the benefit of the Rate Reduction. Our failure to terminate the Rate Reduction upon the occurrence of any Termination Event shall not be deemed a waiver of our right to do so or your obligation to pay interest at the Standard Rate (or default rate, if applicable) from the date of the Termination Event even if payments are accepted after the Termination Event and calculated using the Rate Reduction. FOR BANK USE ONLY Authorization Confirmed: r required per e y anus on 4. 15.1 , paragraph DISCLOSURE FOR CONFESSION OF JUDGMEN7- M&T AWL BORROWER Manuincturem and Traders Trust Company Pennsylvania Undersigned: ALPINE COAL COMPANY, INC., a corporation organized under the laws of Pennsylvania Chief executive office/principal residence: 3920 Market Street, Camp Hill, Pennsylvania 17011 Sank: MANUFACTURERS AND TRADERS TRUST COMPANY, a New York banking corporation with banking offices at One M&T Plaza, Buffalo, New York 14240 Attention: Office of General Counsel (the "Bank") The Undersigned has executed, and/or Is executing, on or about the date hereof, the following documents, instruments or other agreements (collectively, the "Document(s)"), under which the Undersigned is obligated to repay monies to the Bank: A promissory Note in the original principal amount of $100,000.00 by the Undersigned to Bank dated February, 2005. A. The Undersigned understands that the Document(s) contain a Confession of Judgment provision that would permit the Bank to enter judgment against It in court, after a default on the Document(s), without advance notice to it and without offering it an opportunity to defend against the entry of judgment. In executing the Document(s), being fully aware of its rights to advance notice and to a hearing to contest the validity of any judgment or other claims that the Bank may assert against it under the Document(s), the Undersigned 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 the Bank's entering judgment against it by confession as provided for in the Confession of Judgment provision. B. The Undersigned further understands that In addition to giving the Bank the right to enter judgment against it without advance notice or a hearing, the Confession of Judgment provision in the Document(s) also contain language that would permit the Bank, after entry of judgment, to execute on the judgment by foreclosing upon, attaching, levying on, taking possession of or otherwise seizing its property, in full or partial payment of the judgment. In executing the Document(s), being fully aware of its rights to advance notice and a hearing after judgment is entered and before execution on the judgment, the Undersigned is knowingly, inteAigently and voluntarily waiving these rights, and the Undersigned expressly agrees and consents to the Bank's executing on the judgment, in any manner permitted by applicable state and federal law. C. The Undersigned certifies that a representative of the Bank specifically called the Confession of Judgment provisions in the Document(s) to the attention of the Undersigned, and/or that the Undersigned was represented by legal counsel in connection with the above documents. D. The Undersigned hereby certifies: that its annual income exceeds $10,000; that all references to "the Undersigned" above refer to all persons and entities signing below; and that the Undersigned received a copy hereof at the time of signing. Dated: FebruaryCV? , 2005 ALF By: CLS-1a9(8)-PA (11/01) MA I Original - Sank 12/ EXHIBIT 2 Ma ? Manufacturers and Traders Trust company CONTINUING GUARANTY (PERSONAL) Pennsylvania GUARANTOR: Mark J. Rodak DOC-jETY DATE -/.Q 25 North 19th Street, Camp Hill, Pennsylvania, 17011 BORROWER: ALPINE COAL COMPANY, INC. 3920 Market Street, Camp Hill, Pennsylvania 17011 BANK: MANUFACTURERS AND TRADERS TRUST COMPANY, a New York banking corporation with banking offices at One M&T Plaza, Buffalo, New York 14240 Attention: Office of General Counsel 1. Guaranty. (a) Guarantor, intending to be legally bound, hereby unconditionally guarantees the full and prompt payment and performance of any and all of Borrowers Obligations (as defined below) to the Bank when due, whether at stated maturity, by acceleration or otherwise. As used in this Guaranty, the term "Obligations" shall mean any and all obligations, indebtedness and other liabilities of Borrower to the Bank now or hereafter existing, of every kind and nature and all accrued and unpaid interest thereon and all Expenses (as defined below) including without limitation, whether such Obligations, indebtedness and other liabilities (1) are direct, contingent, liquidated, unliquidated, secured, unsecured, matured or unmatured; (ii) are pursuant to a guaranty or surety in favor of the Bank; (ill) were originally contracted with the Bank or with another party (including obligations under a guaranty or surety originally in favor of such other party); (iv) are contracted by Borrower alone or jointly with one or more other parties; (v) are or are not evidenced by a writing; (vl) are renewed, replaced, modified or extended; and (vil) are periodically extinguished and subsequently reincurred or reduced and thereafter Increased. Guarantor will pay or perform his or her obligations under this Guaranty upon demand. This Guaranty is and is Intended to be a continuing guaranty of payment (not collection) of the Obligations (irrespective of the aggregate amount thereof and whether or not the Obligations from time to time exceeds the amount of this Guaranty, if limited), independent of, in addition and without modification to, and does not impair or in any way affect, any other guaranty, indorsement, or other agreement in connection with the Obligations, or in connection with any other indebtedness or liability to the Bank or collateral held by the Bank therefor or with respect thereto, whether or not furnished by Guarantor. Guarantor understands that the Bank can bring an action under this Guaranty without being required to exhaust other remedies or demand payment first from other parties. (b) Guarantor acknowledges the receipt of valuable consideration for this Guaranty and acknowledges that the Bank is relying on this Guaranty In making a financial accommodation to Borrower, whether a commitment to lend, extension, modification or replacement of, or forbearance with respect to, any Obligation, cancellation of another guaranty, purchase of Borrowers assets, or other valuable consideration. 2. Continuing, Absolute, Unconditional and Unlimited Guaranty. This Guaranty is irrevocable, absolute, continuing, unconditional and general without any limitation. 3. Guarantor's Waivers & Authorizations. (a) Guarantor's obligations shall not be released, impaired or affected in any way including by any of the following, all of which Guarantor hereby waives (i) any bankruptcy, reorganization or insolvency under any law of Borrower or that of any other party, or by any action of a trustee in any such proceeding; (II) any new agreements or obligations of Borrower or any other party with the Bank; (iii) any adjustment, compromise or release of any Obligations of Borrower, by the Bank or any other party; the existence or nonexistence or order of any filings, exchanges, releases, Impairment or sale of, or failure to perfect or continue the perfection of a security Interest in any collateral for the Obligations, (iv) any failure of Guarantor to receive notice of any intended disposition of such collateral; (v) any fictitiousness, incorrectness, Invalidity or unenforceabiiity, for any reason, of any instrument or other agreement which may evidence any Obligation; (vi) any composition, extension, stay or other statutory relief granted to Borrower Including, without limitation, the expiration of the period of any statute of limitations with respect to any lawsuit or other legal proceeding against Borrower or any person in any way related to the Obligations or a part thereof or any collateral therefor; (vii) any change in form of organization, name, membership or ownership of Borrower or Guarantor; (viii) any refusal or failure of the Bank or any other person prior to the date hereof or hereafter to grant any additional loan or other credit accommodation to Borrower or the Bank's or any other party's receipt of notice of such refusal or failure; (ix) any setoff, defense or counterclaim of Borrower with respect to the obligations or otherwise arising, either directly or Indirectly, in regard to the Obligations; or (x) any other circumstance that might otherwise constitute a legal or equitable defense to Guarantors obligations under this Guaranty. (b) Guarantor waives acceptance, assent and all rights of notice or demand including without limitation (i) notice of acceptance of this Guaranty, of Borrowers default or nonpayment of any Obligation, and of changes in Borrower's financial condition; (ii) presentment, protest, notice of protest and demand for payment; (iii) notice that any Obligations has been incurred or of the reliance by the Bank upon this Guaranty; and (iv) any other notice, demand or condition to which Guarantor might otherwise be entitled prior to the Bank's reliance on or enforcement of this Guaranty. Guarantor further authorizes the Bank, without notice, demand or additional reservation of rights against Guarantor and without affecting Guarantor's obligations hereunder, from time to time; (i) to renew, refinance, modify, subordinate, extend, increase, accelerate, or otherwise change the time for payment of, the terms of or the interest on the Obligations or any part thereof;(ii) to accept and hold collateral from any party for the payment of the any or all of the Obligations, and to exchange, enforce or refrain from enforcing, or release any or all of such collateral; (III) to accept any indorsement or guaranty of any or all of the Obligations or any negotiable Instrument or other writing intended to create an accord and satisfaction with respect to any or all of the Obligations; (iv) to release, replace or modify the obligation of any indorser or guarantor, or any party who has given any collateral for any of all of the Obligations, or any other party in any way obligated to pay any or all of the Obligations, and to enforce or refrain from enforcing, or compromise or modify, the terms of any obligation of any such Indorser, guarantor or party; (v) to dispose of any and all collateral securing the Obligations in any manner as the Bank, in its sole discretion, may deem appropriate, and to direct the order and the enforcement of any and all indorsements and guaranties relating to the Obligations in the Bank's CLBA361175-PA (11198) JC sole discretion; and (vi) to determine the manner, amount and time of application of payments and credits, if any, to be made on all or any part of the Obligations including, without limitation, if this Guaranty Is limited in amount, to make any such application to Obligations, if any, in excess =of the amount of this Guaranty. (c) Notwithstanding any other provision in this Guaranty, Guarantor irrevocably waives, without notice, any right he or she may have at law or in equity (including without limitation any law subrogating Guarantor to the rights of the Bank) to seek contribution, Indemnification or any other form of reimbursement from Borrower or any other obligor or guarantor of the Obligations for any disbursement made under this Guaranty or otherwise. 4. Termination. This Guaranty shall remain In full force and effect as to each Guarantor until actual receipt by the Bank officer responsible for Borrower's relationship with the Bank of written notice of Guarantor's intent to terminate (or Guarantor's death or Incapacity) plus the lapse of a reasonable time for the Bank to act on such notice (the "Receipt of Notice"); provided, however, this Guaranty shall remain in full force and effect thereafter until all Obligations outstanding, or contracted or committed for (whether or not outstanding), before such Receipt of Notice by the Bank, and any extensions, renewals or replacements thereof (whether made before or after such Receipt of Notice), together with Interest accruing thereon after such Receipt of Notice, shall be finally and irrevocably paid in full. Discontinuance of this Guaranty as to one Guarantor shall not operate as a discontinuance hereof as to any other guarantor. Payment of all of the Obllgatons from time to time shall not operate as a discontinuance of this Guaranty, unless a Receipt of Notice as provided above has been received by the Bank. Guarantor agrees that, to the extent that Borrower makes a payment or payments to the Bank on the Obligations, or the Bank receives any proceeds of collateral to be applied to the Obligations, which payment or payments or any part thereof are subsequently Invalidated, declared to be fraudulent or preferential, set aside or otherwise are required to be repaid to Borrower, Its estate, trustee, receiver or any other party, including, without limitation, under any bankruptcy law, state or federal law, common law or equitable cause, then to the extent of such repayment, the obligation or part thereof which has been paid, reduced or satisfied by such amount shall be reinstated and continued in full force and effect as of the date such initial payment, reduction or satisfaction occurred, notwithstanding any contrary action which may have been taken by the Bank in reliance upon such payment or payments. As of the date any payment or proceeds of collateral are returned, the statute of limitations shall start anew with respect to any action or proceeding by the Bank against Guarantor under this Guaranty. 5. Expenses. Guarantor agrees to reimburse the Bank on demand for all the Bank's expenses, damages and losses of any kind or nature, including without limitation costs of collection and actual attomeys' fees and disbursements whether for internal or external counsel incurred by the Bank In attempting to enforce this Guaranty, collect any of the Obligations including any workout or bankruptcy proceedings or other legal proceedings or appeal, realize on any collateral, defense of any action under the prior paragraph or for any other purpose related to the Obligations (collectively, "Expenses"). Expenses will accrue interest at the highest default rate in any instrument evidencing the Obligations until payment is actually received by the Bank. 6. Financial and Other Information. Guarantor shall provide annual personal financial statements and any other financial Information requested by the Bank inform satisfactory to the Bank. Guarantor represents that his or her assets are not subject to any liens, encumbrances or contingent liabilities except as fully disclosed to the Bank in such statements. Guarantor warrants that all information Guarantor gives to the Bank at anytime is correct, complete and not misleading. Guarantor resides at the above address and will notify the Bank officer named above immediately in writing upon any change In address. Guarantor understands this Guaranty and has satisfied himself or herself as to Its meaning and consequences and acknowledges that it has made its own arrangements for keeping Informed of changes or potential changes affecting the Borrower including the Borrower's financial condition. 7. Security; Right of Setoff. As further security for payment of the Obligations, Expenses and any other obligations of Guarantor to the Bank, Guarantor hereby grants to the Bank a security Interest in all money, securities and other property of Guarantor in the actual or constructive possession or control of the Bank or its affiliates Including without limitation all deposits and other accounts owing at any time by the Bank or any of Its affiliates in any capacity to Guarantor in any capacity (collectively, "Property"). The Bank shall have the right to set off Guarantor's Property against any of Guarantor's obligations to the Bank. Such set-off shall be deemed to have been exercised Immediately at the time the Bank or such affiliate elect to do so. The Bank shall also have all of the rights and remedies of a secured party under the Uniform Commercial Code in effect in the Commonwealth of Pennsylvania as of the date of this Guaranty in addition to those under this Guaranty and other applicable law and agreements. 8. No Transfer of Assets. Guarantor shall not transfer, reinvest or otherwise dispose of his or her assets in a manner or to an extent that would or might impair Guarantor's ability to perform his or her obligations under this Guaranty. 9. Nonwaiver by the Bank; Miscellaneous. This Guaranty is intended by Guarantor to be the final, complete and exclusive expression of the agreement between Guarantor and the Bank. This Guaranty may be assigned by the Bank, shall Inure to the benefit of the Bank and its successors and assigns, and shall be binding upon Guarantor and his or her legal representative, successors and assigns and any participation may be granted by the Bank herein In connection with the assignment or granting of a participation by the Bank in the Obligations or any part thereof. All rights and remedies of the Bank are cumulative, and no such right or remedy shall be exclusive of any other right or remedy. This Guaranty does not supersede any other guaranty or security granted to the Bank by Guarantor or others (except as to Guarantor's Waiver of Subrogation rights above). No single, partial or delayed exercise by the Bank of any right or remedy shall preclude exercise by the Bank at any time at its sole option of the same or any other right or remedy of the Bank without notice. Guarantor expressly disclaims any reliance on any course of dealing or usage of trade or oral representation of the Bank including, without limitation, representations to make loans to Borrower or enter into any other agreement with Borrower or Guarantor. No course of dealing or other conduct, no oral agreement or representation made by the Bank or usage of trade shall operate as a waiver of any right or remedy of the Bank. No waiver or amendment of any right or remedy of the Bank or release by the Bank shall be effective unless made specifically in writing by the Bank. Each provision of this Guaranty shall be interpreted as consistent with existing law and shall be deemed amended to the extent necessary to comply with any conflicting law. If any provision nevertheless is held invalid, the other provisions shall remain in effect. Guarantor agrees that in any legal proceeding, a copy of this Guaranty kept in the Bank's course of business maybe admitted into evidence as an original. Captions are solely for convenience and not part of the substance of this Guaranty. 10. Joint and Several. If there is more than one Guarantor, each Guarantor jointly and severally guarantees the payment and performance In full of all obligations under this Guaranty and the term "Guarantor" means each as well as all of them. Guarantor also agrees that the Bank CE8.136/175-PA (11/98) JC need not seek payment from any source other than the undersigned Guarantor. This Guaranty is a primary obligation. Guarantor's obligations hereuncer are separate and Independent of Borrower's, and a separate action maybe brought against G uarantorwhether or not action Is brought =ar joined against or with Borrower or any other party. 11. Notices. Any demand or notice hereunder or under any applicable law pertaining hereto shall be In writing and duly given if delivered to Guarantor (at fts address on the Bank's records) or to the Bank (at the address on page one and separately to the Bank officer responsible for Guarantor's relationship with the Bank). Such notice ordemand shall be deemed sufficiently given forali purposes when delivered (i) by personal delivery and shall be deemed effective when delivered, or (fi) by mail or courier and shall be deemed effective three (3) business days after deposit in an official depository maintained by the United States Post Office for the collection of mail or one (1) business day after delivery to a nationally recognized overnight courier service (e.g., Federal Express). Notice by e-mail is not valid notice under this or any other agreement between Guarantor and the Bank. 12. Governing Law; Jurisdiction. This Guaranty has been delivered to and accepted by the Bank and will be deemed to be made in the Commonwealth of Pennsylvania. Unless provided otherwise under federal law, this Guaranty will be interpreted in accordance with the laws of the Commonwealth of Pennsylvania excluding Its conflict of laws rules. GUARANTOR HEREBY IRREVOCABLY CONSENTS TO THE EXCLUSIVE JURISDICTION OF ANY STATE OR FEDERAL COURT IN THE COMMONWEALTH OF PENNSYLVANIA IN A COUNTY OR JUDICIAL DISTRICT WHERE THE BANK MAINTAINSA BRANCH AND CONSENTS THAT THE BANK MAY EFFECTANYSERVICEOF PROCESS INTHE MANNER ANDAT GUARANTOR'SADDRESS SET FORTH ABOVE FOR PROVIDING NOTICE OR DEMAND; PROVIDED THAT NOTHING CONTAINED IN THIS GUARANTY WILL PREVENT THE BANK FROM BRINGING ANY ACTION, ENFORCING ANY AWARD OR JUDGMENT OR EXERCISING ANY RIGHTS AGAINST GUARANTOR INDIVIDUALLY, AGAINST ANY SECURITY OR AGAINST ANY PROPERTY OF GUARANTOR WITHIN ANY OTHER COUNTY, STATE OR OTHER FOREIGN OR DOMESTIC JURISDICTION. Guarantor acknowledges and agrees that the venue provided above is the most convenient forum for both the Bank and Guarantor. Guarantor waives any objection to venue and any objection based on a more convenient forum In any action Instituted under this Guaranty. 13. Waiver of Jury Trial. GUARANTOR AND THE BANK HEREBY KNOWINGLY, VOLUNTARILY, AND INTENTIONALLY WAIVE ANY RIGHT TO TRIAL BY JURY GUARANTOR AND THE BANK MAY HAVE IN ANY ACTION OR PROCEEDING, IN LAW OR IN EQUITY, IN CONNECTION WITH THIS GUARANTY OR THE TRANSACTIONS RELATED HERETO. GUARANTOR REPRESENTS AND WARRANTS THAT NO REPRESENTATIVE OR AGENT OF THE BANK HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT THE BANK WILL NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THIS JURY TRIAL WAIVER. GUARANTOR ACKNOWLEDGES THAT THE BANK HAS BEEN INDUCED TO ENTER INTO THIS GUARANTY BY, AMONG OTHER THINGS, THE PROVISIONS OF THIS SECTION. 14. Power to Confess Judgment. GUARANTOR (Mark J. Rodak) HEREBY EMPOWERS ANY ATTORNEY OF ANY COURT OF RECORD TO APPEAR FOR GUARANTOR AND, WITH OR WITHOUT COMPLAINT FILED, CONFESS JUDGMENT, OR A SERIES OF JUDGMENTS, AGAINST GUARANTOR IN FAVOR OF THE 13ANKOR ANY HOLDER HEREOF FORALLAMOUNTS DUE HEREUNDER, TOGETHER WITH COSTS OF SUIT AND AN ATTORNEY'S COMMISSION OF THE GREATER OF TEN PERCENT (10%) OF SUCH AMOUNTS OR $1,000 ADDED AS A REASONABLE ATTORNEY'S FEE, AND FOR DOING SO THIS GUARANTY OR A COPY VERIFIED BY AFFIDAVIT SHALL BE A SUFFICIENT WARRANT. GUARANTOR HEREBY FOREVER WAIVES AND RELEASES ALL ERRORS IN SAID PROCEEDINGS AND ALL RIGHTS OF APPEAL AND ALL RELIEF FROM ANY AND ALL APPRAISEMENT, STAY OR EXEMPTION LAWS OF ANY STATE NOW IN FORCE OR HEREAFTER ENACTED. INTEREST ON ANY SUCH JUDGMENT SHALL ACCRUE AT THE DEFAULT RATE SET FORTH IN ANY OF THE DOCUMENTS EVIDENCING THE OBUGATIONS OF BORROWER. NO SINGLE EXERCISE OF THE FOREGOING POWER TO CONFESS JUDGMENT, OR A SERIES OF JUDGMENTS, SHALL BE DEEMED TO EXHAUST THE POWER, WHETHER OR NOT ANY SUCH EXERCISE SHALL BE HELD BY ANY COURT TO BE INVALID, VOIDABLE, OR VOID, BUT THE POWER SHALL CONTINUE UNDIMINISHED AND IT MAY BE EXERCISED FROM TIME TO TIME AS OFTEN AS THE BANK SHALL ELECT UNTIL SUCH TIME AS THE BANK SHALL HAVE RECEIVED PAYMENT IN FULL OF ALL AMOUNTS DUE HEREUNDER. 15. Guarantor acknowledges that It has read and understood all the provisions of this Guaranty, Including the Confession of Judgment and Waiver of Jury Trial, and has been advised by counsel as necessary or appropriate. Dated: February L 2002 FOR PURPOSES OF THIS AGREEMENT "OBLIGATIONS" IS NOT LIMITED TO PRESENTLY EXISTING INDEBTEDNESS, LIABILITIES AND OBLIGATIONS. Witness (b a loy o ST Bank): X ?WrVi White CUB-13&175-PA (1 t/98) JC GUARANTOR: COMMONWEA TH OF PENNSYLVANIA ACKNOWLEDGMENT 'COUNTY OF _U , m 1 SS. 10A &n On the I &-;t- day of February, in the year 2002, before me, the undersigned, a Notary Public In and for said .Commonwealth, personally appeared Mark J. Rodak, personally known to me or proved to me on the basis of satisfactory evidence to be the individual whose name is subscribed to the within said Instrument and acknowledged to me that he/she executed the same in his/her Notatf at by his/her si nature n the instrument, t e Individual, or the person upon behalf of which the individual acted, executed capacF--- the InP blic 010 A. 11211M My 106MMISSIM Expires Da 19, 200 CLO-1361178-PA (11198) JC DISCLOSURE FOR CONFESSION OF JUDGMENT Me AAIL GUARANTOR Menufactumm and Trade?6 Trust Company Pennsylvania Undersigned: Mark J. Rodak, an individual Chief executive officelprincipal residence: 25 North 19th Street, Camp Hill, Pennsylvania, 17011 Sank: MANUFACTURERS AND TRADERS TRUST COMPANY, a New York banking corporation with banking offices at One M&T Plaza, Buffalo, New York 14240 Attention: Office of General Counsel (the "Bank") The Undersigned has executed, and/or is executing, on or about the date hereof, the following documents, Instruments or other agreements (collectively, the "Document(s)"), under which the Undersigned Is obligated to repay monies to the Bank: A guaranty of the obligations of ALPINE COAL COMPANY, INC. to the Bank dated February _1 2002 A. The Undersigned understands that the Document(s) contain a Confession of Judgment provision that would permit the Bank to enter judgment against it in court, after a default on the Document(s), without advance notice to it and without offering it an opportunity to defend against the entry of judgment. In executing the Document(s), being fully aware of Its rights to advance notice and to a hearing to contest the validity of any judgment or other claims that the Bank may assert against it under the Document(s), the Undersigned 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 the Bank's entering judgment against it by confession as provided for In the Confession of Judgment provision. B. The Undersigned further understands that in addition to giving the Bank the right to enter judgment against it without advance notice or a hearing, the Confession of Judgment provision in the Document(s) also contain language that would permit the Bank, after entry of judgment, to execute on the judgment by foreclosing upon, attaching, levying on, taking possession of or otherwise seizing its property, in full or partial payment of the judgment. In executing the Document(s), being fully aware of its rights to advance notice and a hearing after judgment Is entered and before execution on the judgment, the Undersigned Is knowingly, intelligently and voluntarily waiving these rights, and the Undersigned expressly agrees and consents to the Bank's executing on the judgment, in any manner permitted by applicable state and federal law. C. The Undersigned certifies that a representative of the Bank specifically called the Confession of Judgment provisions in the Document(s) to the attention of the Undersigned, and/or that the Undersigned was represented by legal counsel in connection with the above documents. D. The Undersigned hereby certifies: that its annual income exceeds $10,000; that all references to "the Undersigned" above refer to all persons and entities signing below; and that the Undersigned received a copy hereof at the time of signing. Dated: Fe x `776"1 - Witness: >< Print Name: CLB-169(%PA (3/88) JC I Original - Bank 1 EXHIBIT 3 ITEMIZED COMPUTATION OF THE AMOUNT NOW DUE Principal: $ 98,166.76 Interest: 14.90% $ 8,936.37 Authorized Attorney's Fees $10,724.31 Other Authorized Items: Late Charges $140.00 Total: $117,967.44 Brian W. Carter, Esquire bcarterkwglaw.com I.D. No. 204934 Michael E. Adler, Esquire madler@wglaw.com I.D. No. 82205 Weber Gallagher Simpson Stapleton Fires & Newby, LLP The Fulton Bank Building 200 North Third Street, Suite 9A Harrisburg, PA 17101 T: (717) 237-6945 F: (717) 237-6949 Manufacturers and Traders Trust Co. Plaintiff vs. Alpine Coal Company, Inc. and Mark J. Rodak Defendants Attorneys for Plaintiff, Manufacturers and Traders Trust Co. Court of Common Pleas of Cumberland County, Pennsylvania : Civil Action - Law No. 10-770 c'iJ AFFIDAVIT OF NON-MILITARY SERVICE Brian W. Carter, Esquire, being duly sworn according to law, deposes and says that he is an officer of Plaintiff Manufacturers and Traders Trust Co.; that he is authorized to make this Affidavit on behalf of Plaintiff; and that, to the best of Plaintiff's knowledge, Defendant Alpine Coal Company, Inc. is not in the Military Service of the United States, nor any State or Territory thereof or its allies, as defined in the Soldiers' and Sailors' Civil Relief Act of 1940, as amended. The Affiant further verifies that the facts set forth in the foregoing are true and correct to the best of my knowledge, information, and belief; that I understand false statements herein are made subject to the penalties of 18 Pa. C.S. § 4904 relating to unsworn falsification to authorities. Date: kDI 10, 2010 B ' It er, Esquire Attorney for Plaintiff Brian W. Carter, Esquire bcarter@walaw.com I.D. No. 204934 Michael E. Adler, Esquire madlerkwglaw.com I.D. No. 82205 Weber Gallagher Simpson Stapleton Fires & Newby, LLP The Fulton Bank Building 200 North Third Street, Suite 9A Harrisburg, PA 17101 T: (717) 237-6945 F: (717) 237-6949 Manufacturers and Traders Trust Co. Plaintiff vs. Alpine Coal Company, Inc. and Mark J. Rodak Defendants Attorneys for Plaintiff, Manufacturers and Traders Trust Co. Court of Common Pleas of Cumberland County, Pennsylvania Civil Action - Law NO. 16 - 7 -7 AFFIDAVIT OF NON-MILITARY SERVICE Brian W. Carter, Esquire, being duly sworn according to law, deposes and says that he is an officer of Plaintiff Manufacturers and Traders Trust Co.; that he is authorized to make this Affidavit on behalf of Plaintiff; and that, to the best of Plaintiff's knowledge, Defendant Mark J. Rodak is not in the Military Service of the United States, nor any State or Territory thereof or its allies, as defined in the Soldiers' and Sailors' Civil Relief Act of 1940, as amended. The Affiant further verifies that the facts set forth in the foregoing are true and correct to the best of my knowledge, information, and belief; that I understand false statements herein are made subject to the penalties of 18 Pa. C.S. § 4904 relating to unsworn falsification to authorities. Date: 'D26 . In, 20107 ? ?-? I "I arter, Esquire Attorney for Plaintiff Brian W. Carter, Esquire bcarter@wglaw.com I.D. No. 204934 Michael E. Adler, Esquire madler(a)w,glaw.com I.D. No. 82205 Weber Gallagher Simpson Stapleton Fires & Newby, LLP The Fulton Bank Building 200 North Third Street, Suite 9A Harrisburg, PA 17101 T: (717) 237-6945 F: (717) 237-6949 Manufacturers and Traders Trust Co. Plaintiff vs. Alpine Coal Company, Inc. and Mark J. Rodak Defendants Attorneys for Plaintiff, Manufacturers and Traders Trust Co. Court of Common Pleas of Cumberland County, Pennsylvania Civil Action •- Law No. /0- 775- 9 cM ? AFFIDAVIT Brian W. Carter, Esquire, being duly sworn accord to law, deposes and says that he is authorized to make this Affidavit on behalf of Plaintiff, Manufacturers and Traders Trust Co.; that the facts set forth in the foregoing Complaint for Confession of Judgment are true and correct to the best of his knowledge, information, and belief, and that the Exhibits attached to the Complaint are true and correct copies of the originals. The Affiant further verifies that the facts set forth in the foregoing are true and correct to the best of my knowledge, information, and belief; that I understand false statements herein are made subject to the penalties of 18 Pa. C.S. § 4904 relating to unsworn falsification to authorities. Date:, 1r) T ?i in - B ' ;arter, LEsquire Attorney for Plaintiff Brian W. Carter, Esquire bcarter@wglaw.com I.D. No. 204934 Michael E. Adler, Esquire madlergwglaw.com I.D. No. 82205 Weber Gallagher Simpson Stapleton Fires & Newby, LLP The Fulton Bank Building 200 North Third Street, Suite 9A Harrisburg, PA 17101 T: (717) 237-6945 F: (717) 237-6949 Manufacturers and Traders Trust Co. Plaintiff vs. Alpine Coal Company, Inc. and Mark J. Rodak Defendants Attorneys for Plaintiff, Manufacturers and Traders Trust Co. Court of Common Pleas of Cumberland County, Pennsylvania Civil Action •- Law No. d - l 7 6-9 PRAECIPE FOR ASSESSMENT OF DAMAGES TO THE PROTHONOTARY: Please assess damages now due on the judgment in this action against Defendants Alpine Coal Company, Inc. and Mark J. Rodak: Principal: Interest at 14.90% Authorized Attorney's Fees Other Authorized Items: Late Charges $ 98,166.76 $ 8,936.37 $10,724.31 $140.00 Total: $ 117,967.44 Brian W. Carter, Esquire Attorney for Plaintiff Attorney I.D. 204934 The Fulton Bank Building 200 North Third Street, Suite 9A Harrisburg, PA 17101 (717) 237-6945 bcarternu wglaw.com JUDGMENT AND ASSESSMENT OF DAMAGES I assess damages as above and judgment is entered for Plaintiff Manufacturers and Traders Trust Co., and against Defendants Alpine Coal Company, Inc. and Mark J. Rodak in the amount of $117,967.44 plus interest after judgment at the statutory rate. Dated:-/ 1- (7- f& By: Prothonotary of Cumberland County Brian W. Carter, Esquire bcarter@wglaw.com I.D. No. 204934 Michael E. Adler, Esquire madler ?wglaw.com I.D. No. 82205 Weber Gallagher Simpson Stapleton Fires & Newby, LLP The Fulton Bank Building 200 North Third Street, Suite 9A Harrisburg, PA 17101 T: (717) 237-6945 F: (717) 237-6949 Manufacturers and Traders Trust Co. Plaintiff vs. Alpine Coal Company, Inc. and Mark J. Rodak Defendants Attorneys for Plaintiff, Manufacturers and Traders Trust Co. Court of Common Pleas of Cumberland County, Pennsylvania : Civil Action •- Law : No. 16 . -77 S5 NOTICE UNDER RULE 2958.1 OF JUDGMENT AND EXECUTION THEREON NOTICE OF DEFENDANTS' RIGHTS To: Alpine Coal Company, Inc. and Mark J. Rodak: A judgment in the amount of $117,967.44 has been entered against you and in favor of the Plaintiff without any prior notice or hearing based on a confession of judgment contained in a written agreement or other paper allegedly signed by you. The sheriff may take your money or other property to pay the judgment at any time after thirty (30) days after the date on which this Notice is served on you. You may have legal rights to defeat the judgment or to prevent your money or property from being taken. YOU MUST FILE A PETITION SEEKING RELIEF FROM THE JUDGMENT AND PRESENT IT TO A JUDGE WITHIN THIRITY (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 OR CANNOT AFFORD ONE, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW TO FIND OUT WHERE YOU CAN GET LEGAL HELP. Lawyer Referral Service of the Cumberland County Bar Association Cumberland County Bar Association 32 South Bedford Street Carlisle, PA 17013 Telephone: (717) 249-3166 Attorney for Plaintiff: Brian W. Carter Weber Gallagher Simpson Stapleton Fires & Newby, LLP The Fulton Bank Building 200 North Third Street, Suite 9A Harrisburg, PA 17101 T: (717) 237-6945 F: (717) 237-6949 bcarterkwglaw.com Brian W. Carter, Esquire bcarter@wglaw.com I.D. No. 204934 Michael E. Adler, Esquire madler@wglaw.com I.D. No. 82205 Weber Gallagher Simpson Stapleton Fires & Newby, LLP The Fulton Bank Building 200 North Third Street, Suite 9A Harrisburg, PA 17101 T: (717) 237-6945 F: (717) 237-6949 Manufacturers and Traders Trust Co Plaintiff vs. Alpine Coal Company, Inc. and Mark J. Rodak Defendants Attorneys for Plaintiff, Manufacturers and Traders Trust Co. Court of Common Pleas of Cumberland County, Pennsylvania : Civil Action - Law : No. 775-? NOTICE OF FILING JUDGMENT (X) Notice is hereby given that a judgment in the above-captioned matter has been entered against you in the amount of $117,967.44 on 0AX--. 1 , 201 (X) A copy of all documents filed with the Prothonotary in support of the within judgment are enclosed. Prothonotary Civil Division By: If you have any questions regarding this Notice, please contact the filing party: Name: Brian W. Carter, Esquire Attorney for Plaintiff Address: WEBER GALLAGHER SIMPSON STAPLETON FIRES & NEWBY, LLP The Fulton Bank Building 200 North Third Street, Suite 9A Harrisburg, PA 17101 T: (717) 237-6945 F: (717) 237-6949 (This Notice is given in accordance with Pa. R.C.P. 236.) Notice sent to: Alpine Coal Company, Inc. Mark J. Rodak: 3920 Market Street 25 North 19'h Street Camp Hill, PA 17011 Camp Hill, PA. 17011 RECEIPT FOR PAYMENT ------------------- ------------------- Cumberland County Prothonotary's Office Receipt Date 12/17/2010 Carlisle, Pa 17013 Receipt Time 11:57:08 Receipt No. 252574 MANUFACTURERS AND TRADERS TRUS (VS) ALPINE COAL COMPANY INC Case Number 2010-07759 Received of PD BY BRIAN W CARTER ATTY BB Total Non-Cash..... + Total Cash......... + Change ............. - Receipt total...... _ 27.50 Check# 2118 .00 .00 $27.50 Distribution Of Payment Transaction Description Payment Amount JDMT/CONFESSION 14.00 CUMBERLAND CO GENERAL FUND TAX ON CONFESS .50 BUREAU OF RECEIPTS AND CONTROL SATISFACTION 8.00 CUMBERLAND CO GENERAL FUND AUTOMATION FEE 5.00 CUMBERLAND CO AUTOMATION FUND $27.50 SHERIFF'S OFFICE OF CUMBERLAND COUNTY Ronny R Anderson Sheriff Jody S Smith Chief Deputy Richard W Stewart Solicitor ??tr of ?'ttrl,l,rc/446 ?r- FILED-OFFICE OF THE PROTHONOTARY 2011 JAN 2b AM 10: 0 ! CUMBERLAND COUNTY PENNSYLVANIA Manufacturers and Traders Trust Co., I Case Number vs. Mark J. Rodak 2010-7759 SHERIFF'S RETURN OF SERVICE 01/19/2011 01:50 PM - Ryan Burgett, Deputy Sheriff, who being duly sworn according to law, states that on January 19, 2011 at 1350 hours, he served a true copy of the within Complaint and Notice, upon the within named defendant, to wit: Mark J. Rodak, by making known unto himself personally, at 25 N. 19th Street, Camp Hill, Cumberland County, Pennsylvania 17011 its contents and at the same time handing to him personally the said true and correct copy of the same. SHERIFF COST: $41.50 January 20, 2011 RYAN BURGETT, OEM ry SO ANSWERS, RON R ANDERSON, SHERIFF n CountySuite Shentf Teeasolt Ins: SIRLIN LESSER & BENSON, P.C. By: Jon C. Sirlin, Esquire Identification No.: 17498 :123 South Broad Street, Suite 2100 Philadelphia, PA 19109 (215) 864-9700 ,Attorney for Garnishee MANUFACTURERS AND TRADERS TRUST CO v COURT OF COMMON PLEAS COUNTY OF CUMBERLAND vs. ALPINE COAL COMPANY, MARK J. RODAK and NO. 10-7759 PNC BANK, GARNISHEE ANSWERS TO INTERROGATORIES IN ATTACHMENT TO: MANUFACTURERS AND TRADERS TRUST CO., Plaintiff No. 2. Account titled Alpine Coal Co. Inc., and an account titled Mark John Rodak have been restricted pursuant to this Writ. Pursuant to the terms and conditions of the deposit agreement between the bank and the depositor, the bank claims a priority lien in, and a right of set-off against the account consisting of $100.00 Legal Processing Charge. Pursuant to 42 Pa.C.S.A. Section 2503, a garnishee's attorney fee in the minimum amount of $350.00 is authorized and will be deducted from the attached funds. After allowing for the general monetary exemption under 42 Pa.C.S. § 8123 and after the deductions set forth above garnishee admits to holding a balance of $1,067.14 before deducting garnishee's attorney's fee. 3. - 6. No. 7. (Q) If you are a bank or other financial institution, at the time you were served or at any subsequent time did the defendant have funds on deposit in an account in which funds are deposited electronically on a recurring basis and which are identified as being funds that upon deposit are exempt from execution, levy or attachment under Pennsylvania or federal law? (A) No. 8. (Q) If you are a bank or other financial institution, at the time you were served or at any subsequent time did the defendant have funds on deposit in an account in which the funds on deposit, not including any otherwise exempt funds, did not exceed the amount of the general monetary exemption under 42 Pa.C.S. § 8123? (A) No. Dated: -?? VERIFICATION The undersigned hereby verifies that I am an authorized representative of PNC Bank, N.A.; that the statements made in the foregoing Answers to Interrogatories are true and correct to the best of my knowledge, information and belief and that these statements are made subject to the penalties of 18Pa. C.S. s4904, relating to unsworn falsification to authorities. RE: Manufacturers and Traders Trust Co vs. Alpine Coal Company and Mark Rodak DOCKET NO.: 10.7759 Theresa A Dusch Team Lead, Garnishment Processing Position DATE: January 24, 2013 Lit-233946.1 MANUFACTURERS AND TRADERS TRUST CO.: COURT OF COMMON PLEAS COUNTY OF CUMBERLAND Vs. ,3 =M r. ALPINE COAL COMPANY,MARK J. RODAK : NO. 10-7759 7,0 i and .�c �C-1 3 PNC BANK,GARNISHEE ATTORNEY I.D.# -n . . co USER TO SATISFY JUDGMENT AGAINST GARNISHEE TO THE PROTHONOTARY: Kindly mark the judgment entered against the Garnishee, PNC Bank, in the above matter, satisfied upon payment of your costs only. R, T-163, --SARAH A. ELIA +� Attorney for Plaintiff Dated: 4q.50 POWtT/ &a sup B P-*-786 SHERIFF'S OFFICE OF CUMBERLAND COUNTY Ronny R Anderson iw•� Sheriff atstixxr t tirarafi�� � ;_ T t aE PROTHONO fAt Y Jody S Smith r Chief Deputy ". 2063 AUG 30 AM 10: 26 Richard W Stewart -: CUMBERLAND COUNTY Solicitor OMC 6 Of THE WERIFF PENNSYLVANIA Manufacturers and Traders Trust Co., Case Number vs. Mark J. Rodak(et al.) 2010-7759 SHERIFF'S RETURN OF SERVICE 01/09/2013 11:49 AM- Dennis Fry, Deputy Sheriff,who being duly sworn according to law, states that on January 9, 2013 at 1149 hours, attached as herein commanded all goods, chattels, rights, debts, credits, and monies of the within named defendants,to wit:Alpine Coal Company and Mark J. Rodak , in the hands, possession, or control of the within named garnishee, PNC Bank, 2148 Market Street, Camp Hill, Cumberland County, Pennsylvania, by handing to Sean O'Malley, Teller Manager, personally three copies of interrogatories together with three true and attested copies of the writ of execution and made the contents there of known to him. The writ of execution and notice to defendant was mailed on January 10, 2013 to Alpine Coal Company at 3920 Market Street, Camp Hill, PA 17011 and also to Mark J. Rodak at 25 N 19th Street, Camp Hill, PA 17011. 08/29/2013 Ronny R. Anderson, Sheriff,who being duly sworn according to law, states this writ of execution is returned as ABANDONED. No action on writ in over 6 months. Attorney did receive$ 1,067.14 from bank garnishment. SHERIFF COST: $127.01 SO ANSWERS, c �Z ,August 29, 2013 RONNY R ANDERSON, SHERIFF (c)CountySuite Sheriff,Teleosoft,Inc.