HomeMy WebLinkAbout04-4779TUCKER ARENSBERG, P.C.
By: F. Stephenson Matthes
PA I.D. No. 67408
111 North Front Street
P.O. Box 889
Harrisburg, PA 17108-0889
Telephone: 717-234-4121
Facsimile: 717-232-6802
THE LEGACY BANK,
2600 Commerce Drive
Harrisburg, PA 17110,
Plaintiff,
W&C REALTY & HOLDINGS, L.P.
47 West Pomfret Street
Carlisle, PA 17013,
Defendant.
COURT OF COMMON PLEAS
CUMBERLAND COUNTY
c v. D ws oN
.o.
ENTRY OF APPEARANCE
PRAECIPE FOR ASSESSMENT OF DAMAGES
AND CONFESSION OF JUDGMENT
TO THE PROTHONOTARY:
Kindly enter our appearance for and on behalf of the Defendant above
named.
Pursuant to the authority contained in the Warrant of Attorney separately
set forth in the Unconditional Guarantee dated April 30, 2003, a true and correct
copy of which is attached as Exhibit A to the Complaint filed in this action, we
hereby appear for the Defendant in this matter, W&C Realty & Holdings, L.P.,
and confess judgment authorized, in favor of the Plaintiff and against the
Defendant, as follows:
DAMAGES ARE ASSESSED AS FOLLOWS:
Unpaid principal balance under the Unconditional
Guarantee dated April 30, 2003 as of
July 6, 2004
Late fees from July 6, 2004
$444,454.49
1,160.76
$445,615.25'
*Together with interest accruing at the rate in
the Unconditional Guarantee from July 6, 2004,
attorneys' fees, and costs of this action (to be determined)
111 North Front Street
P.O. Box 889
Harrisburg, PA 17108-0889
Telephone: 717-234-4121
Facsimile: 717-232-6802
Dated:
71990.1
Attorneys for Plaintiff,
The Legacy Bank
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TUCKER ARENSBERG, P.C.
By: F. Stephenson Matthes
PA I.D. No. 67408
111 North Front Street
P.O. Box 889
Harrisburg, PA 17108-0889
Telephone: 717-234-4121
Facsimile: 717-232-6802
THE LEGACY BANK,
2600 Commerce Drive
Harrisburg, PA 17110,
Plaintiff,
COURT OF COMMON PLEAS
CUMBERLAND COUNTY
v. CIVIL DIVISION
W&C REALTY & HOLDINGS, L.P.
47 West Pomfret Street
Carlisle, PA 17013,
Defendant.
NO.
ENTRY OF JUDGMENT BY CONFESSION
AND ASSESSMENT OF DAMAGES
Pursuant to the Complaint in Confession of Judgment filed in the within action
and the Warrant of Attorney attached hereto, judgment is hereby entered against the
Defendant, jointly and severally.
DAMAGES ARE ASSESSED AS FOLLOWS:
Unpaid principal balance under the Unconditional
Guarantee dated April 30, 2003 as of
July 6, 2004 $444,454.49
Late fees from July 6, 2004 1,160.76
$445,615.25'
*Together with interest accruing at the rate in the Unconditional
Guarantee from July 6, 2004, attorneys' fees, and costs of this action
(to be determined)
71989.1
PROTHONOTARY
-2-
TUCKER ARENSBERG, P.C.
By: F. Stephenson Matthes
PA I.D. No. 67408
111 North Front Street
P.O. Box 889
Harrisburg, PA 17108-0889
Telephone: 717-234-4121
Facsimile: 717-232-6802
THE LEGACY BANK,
2600 Commerce Drive
Harrisburg, PA 17110,
Plaintiff,
W&C REALTY & HOLDINGS, L.P.
47 West Pomfret Street
Carlisle, PA 17013,
Defendant.
COURT OF COMMON PLEAS
CUMBERLAND COUNTY
CIVIL DIVISION
NO.
COMPLAINT IN CONFESSION OF JUDGMENT
Plaintiff, The Legacy Bank (the "Bank"), by and through its attorneys,
Tucker Arensberg, P.C., files this Complaint for judgment by confession pursuant to
Pennsylvania Rules of Civil Procedure 2950-2956 and, in support hereof, states as
follows:
1. The Bank is a national banking association with an address at 2600
Commerce Drive, Harrisburg, Pennsylvania 17110.
2. Defendant, W&C Realty & Holdings, L.P., is a Pennsylvania limited
partnership with a last known address of 47 West Pomfret Street, Carlisle, Pennsylvania
17013.
3. The Defendant executed a certain Unconditional Guarantee on April 30,
2003 (the "Guarantee") pursuant to which the Defendant agreed to, and did, become
unlimited guarantor and surety for all obligations of HealthCore, LLC, (the "Borrower") to
the Bank, including but not limited to, Borrower's obligations to Bank under (i) that
certain Loan Agreement between the Borrower and the Bank dated April 30, 2003 and
all related documents (the "Agreements"). True and correct copies of the Unconditional
Guarantee and Note/Loan Agreements are attached hereto and incorporated herein as
Exhibits "A" and "B", respectively.
4. Defendant, through the terms of the Guarantee, authorized the confession
of judgment against the Defendant.
5. Pursuant to the terms of the Guarantee, the Defendant was required to,
among other things, guarantee and act as surety for Borrower's obligations under the
Agreements.
6. As a result (among other things) of Borrower's failure to pay certain
amounts as and when due under the Agreements, events of default occurred under the
Agreements.
7. Pursuant to the terms of the Agreements, upon the occurrence of an event
of default, the Bank was authorized to declare all amounts payable under the
Agreements to be immediately due and payable.
8. Pursuant to the terms of the Guarantee, upon the occurrence of an event
of default under the Agreements, the Bank was authorized to declare all amounts
payable under the Guarantee to be immediately due and payable.
-2-
9. On or about September 17, 2004, the Bank sent letters to Borrower,
notifying the Borrower of the occurrence of events of default under the Agreements (the
"Default Letters") and declaring the unpaid principal amount of the Agreements, interest
accrued thereon, and all other amounts owing under the Agreements to be immediately
due and payable in full. True and correct copies of the Default Letter are attached
hereto and incorporated herein by reference as Exhibit "C".
10. On September 22, 2004, the Bank sent a letter to the Defendant, again
notifying the Defendant that all obligations under the Agreements were due and
payable. A true and correct copy of that letter is attached hereto and incorporated
herein as Exhibit "D".
11. Notwithstanding default and demand, the Borrower and the Defendant
have not paid the full amounts owed to the Bank under the Agreement.
12. Pursuant to the terms of the Agreements, upon the occurrence of an event
of default under the Guarantee, the Bank may appear for and confess judgment against
the Defendant for the amounts due and owing under the Guarantee.
13. Under the terms of the Guarantee, the Bank is entitled to recover from the
Defendant the costs of any suit, including attorneys' fees.
14. Under the terms of the Guarantee, the Defendant agreed that the Courts
of Common Pleas of the Commonweal{h of Pennsylvania and any United States District
Court in Pennsylvania shall have jurisdiction with respect to matters involving the
Guarantee.
-3-
15.
Bank under the Guarantee are as follows:
Unpaid principal balance under the Unconditional
Guarantee dated April 30, 2003 as of
July 6, 2004
Late fees from July 6, 2004
As of July 6, 2004, the amounts due and owing by the Defendant to the
$444,454.49
1,160.76
$445,615.25'
*Together with interest accruing at the rate in the Unconditional
Guarantee from July 6, 2004, attorneys' fees, and costs of
this action (to be determined)
16. The Note and the Guarantee had not been assigned by the Bank.
17. The Bank's claims against the Defendant are not based upon a residential
mortgage and Act 6 does not apply.
18. No judgment has been entered on the Guarantee in any jurisdiction.
19. The confession of judgment provision appearing in each of the Notes or
Guarantee is less than twenty (20) years old.
20. Judgment in favor of the Bank and against the Defendant is not being
entered against a natural person in a consumer credit transaction.
21. Judgment in favor of the Bank and against the Defendant as demanded is
authorized by the confession of judgment provisions contained in the Note and/or
Guarantee.
WHEREFORE, the Bank, as authorized by the Warrant of Attorney
contained in the Note and Guarantee, hereby demands that judgment by confession be
-4-
entered in its favor and against the Defendant, in the amount of $445,615.25, plus
interest accruing after July 6, 2004, plus costs and attorneys' fees and requests such
other and further relief as the Court may deem proper.
i.pER ARENSBERG, P.C.
h tthes
PA"gD. No. 67408
111 North Front Street
P.O. Box 889
Harrisburg, PA 17108-0889
Telephone: 717-234-4121
Facsimile: 717-232-6802
Dated:
71991.1
Attorneys for Plaintiff,
The Legacy Bank
-5-
U.S. Small Business Administration
UNGONDITIONAL GUARANTEE
SBA Loan #
SSA Loan Name
GP 626 380 40 09 HBG
HealthCore, LLC
W&C Realty & Holdings, L.P.
HealthCore, LLC
Lender The Legacy Bank
Date Apd130, 2003
Note Amount 500,000.00
I. GUARANTEE:
Guarantor unconditionally guarantees payment to Lender of all amounts owing under the Note. This Ouarautee remains
in effect until the Not'` is paid in full. Guanmtor must pay all amounts due under the Note when Lender makes wrRten
demand upon Guarantor, Lender is not requirad to seek payment fi'om any other source b~fore demanding payment from
Guarantor.
2. NOTE:
The "Note" is the promissory note dated Apt~ 30, L~03 in the principal amount of
FIVE HUNDRED THOUSAND AND NO/100 Dollars,
from Borrower to Lender. It includes any assumption, renewal, subsdtutiun, or replacement of the Not~, a.nd multiple
notes under a line of credit.
3. DEFINITIONS:
"Collateral" means any property taken as security for payment of the Note or any guarantee of the Note.
"Loan" means the loan evidenced by the Note.
"Loan Documents" means the documents related to the Loan signed by Borrower, Guarantor or any other guarantor, or
anyone who pledges Collateral.
"SBA" means the Small Business Administration, an Agency of the United States of America.
SBA Form 148 (10/98) Previous editions obsolete.
Page 1/5
Bankers Systems, Inc., St. Cloud, MN
4. LENDER'S GENERAL I~DWERS:
Lender may take any of the following actions at an)' time, without notice, without Guarantor's consent, and without
making demand upon Guarantor:
A. Modify the terms of the Note or any other Loan Document except to increase the amounts due under the Note;
B. Refrain from taking any action on the Note, the Collateral, or any guarantee;
C. Release any Borrower or any guarantor of the Note;
D. Compromise or settle with the Borrower or any guarantor of the Note;
E. Substitute or release any of the Collateral, whether or not Lender receives anything in return;
F. Foreclose upon or otherwise obtain, and dispose of, any Collateral at public or private sale, with or without
advertisement;
G. Bid or buy at any sale of CoUateral by Lender or any other lienholdor, at any price Lender chooses; and
H. Exercise any rights it has, including those in the Note and other Loan Documents.
These actions will not release or reduce the obhgations of Guarantor or create any rights or claims against Lender.
5. FEDERAL LAW:
When SBA is the holder, the Note and this Guarantee will be construed and enforced under federal law, including SBA
regulations. Lender or SBA may use state or local procedures for filing papers, recording documents, g~ving notice,
foreclosing liens, and other purposes. By using such procedures, SBA does not waive any federal imm~llity from state or
local control, penalty, tax, or liability. As to this Guarantee, Guarantor may not claim or assert any local or state law
against SBA to deny any obhgation, defeat any claim of SBA, or preempt federal law.
6. RIGHTS, NOTICES, AND DEFENSES THAT GUARANTOR WAIVES:
To the extent per'nutted by law,
A. Guarantor waives ali fights to:
1) Require presentment, protest, or domand upon Borrower;
2) Redeem any Collateral before or a~ter Lender disposes of it;
3) Have any disposition of Collateral adverdsed; and
4) Require a valuation of Collateral before or after Lender disposes of ic
B. Guarantor waives any notice of:
1) Any default under the Note;
2) Presentment, dishonor, protest, or demand;
3) Execution of the Note;
4) Any action or inaction un the Note or Collateral, such as disbursement, payment, nonpayment, acceleration,
intent to accelerate, a..~igament, collection activity, and incurring enforcement expenses;
5) Any change in the fiunncial condition or business operations of Borrower or any guarantog
6) Any changes in the terms of the Note or other Loan Documents, except increases in the amounts due under the
Note; and
7) The.time or place of any sale or oti~r disposition of Collateral.
C. Guarantor waives defenses based upon any claim that:
1) Lender failed to obtain any guarantee;
2) Lender failed to obtain, perfect, or maintain a security interest in any property offered or taken as Collateral;
3) L~nder or others ~mproperly valued or inspes~d the Collateral;
4.) The Collateral changed in value, or was neglected, lost, destroyed, or underinsured;
SBA Fo~rn 148 (10/98) Previous editions obsolete. Page
B~nkers Systems, Inc., St. Cloud, MN
5) Lender h:npalred the Collateral;
6) Lender did not dispose of auy of the Coliateral;
7) Lender did not conduct a commercially reasonable sale;
8) Lender did not obtain the fair market value of the Co[lateral;
9) Lender did not make or perfect a claim upon the death or disabihty of Borrower or any guarantor of the
Note;
10) The financial condition of Borrower or any guarantor was overstated or has adversely change&
I 1) Lender made errors or omissions in Loan Documents or ~adra~n~t~ation of the Loan;
12) Lender did not seek payment from the Borrower, any other guarantors, or any Collateral before demanding
payment from Guarantor:
13) Lender impa/red Guarantor's suretyship fights;
14-) Lender modified the Note ret'ms, other than to increase amounts due under the Note. If Lender modifies the
Note to increase the amounts due under the Note without Guarantor's consent. Guarantor will not be liable
for the increased amounts and related interest and expenses, but remains liable for al.! other amounts;
15) Borrower has avoided liability on the Note; or
16) Lender has taken an action allowed under the Note, this Guarantee, or other Loan Documents.
7. DUTIES AS TO COLLATERAL:
Guarantor will preserve the Collateral pledged by Guarantor to secure this Guarantee. Lender has no duty to preserve
or dispose of any Co[lateral.
8. SUCCESSORS AND ASSIGNS:
Under this Oum:antee, Guarantor includes heirs and successors, and Lender includes its successors and assigns.
9. GENERAL PROVISIONS:
A.ENFORCEMENT EXPENSES, Guarantor promises to pay all expenses Lender incurs to enforce this Guarantee,
including, but not limited to, attorney's fees and costs.
B. SBA NOT A CO-GUARANTOR. Guarantor's [lability will euntinue even if SBA pays Lender. SBA is not a
co-guarantor with Guarantor. Guarantor has no fight of eonu-ibutioo from SBA.
C.SUBROGATION RIGHTS. Guarantor has no subrogation ~ghts as to the Note or the Co[lateral until the Note is
paid in fuli.
D.JOINT AND SEVEKAL LLABILITY. All individuals and entities siguing as Guarantor are jointly ~nd severally
liable.
E. DOCUMENT SIGNING. Guarantor must sign ail documents necessary at any time to comply with the Loan
Documents and to enable Lender to acquire, perfect* or 'm~ntaln Lender's liens on Collateral.
F. FINANCIAL STATEM]SNTS. Guarantor must g/ye Lender financial statements as Lender requires.
G. LENDER'S RIGHTS CUMULATIVE, NOT WAIVED. Lender may exercise any of its fights separately or
together, as many times as it chooses. Lender may delay or forgo enforcing any of its rights without losing or
impairing any of them.
H.ORAL STATEMENTS NOT BINDING. Guarantor may not use an oral statement to contradict or alter the written
terms of the Note or th/s Guarantee, or to raise a defense to this Guarantee.
I. SEVERABILITY. If any part of this Guarantee is found to be unenforceable, all other par~s will remain in effect.
J. CONSIDERATION. The consideration for this Guarantee is the Loan or any accommodation by Lender as to the
SBA Form 148 (10/98) Previous e~lt~ons obsolete. Page 3/5
Bankers Systems, Inc., St Ctoud, MN
10, STATE-SPECIFIC PROVISIONS:
WARRANT OF AUTHORITY TO CONFESS JUDGEMENT. Upon default, in addition to all other remedies and rights available to
you, by signing below I irrevocably authorize the prothonotary, clerk, or any attorney to appear in any court of record having
jurisdiction over this matter and to confess judgment against me at any time without stay of execution. I waive notice, service of
process, and process. I agree and understand that judgment may be confessed against me for any unpaid principal, accrued
charges due on this Note, plus collection costs and reasonable attorneys' fees up to 15 percent of the judgement. The exercise of
the power to confess judgment will not exhaust this warrant of authority to understand that my property may be seized without prior
notice to satisfy the debt owed. I knowingly, intentionally, and voluntarily waive any and all constitutional rights I have to
pre-deprivation notice and hearing under federal and state laws and fully understand the consequences of this waiver.
B~ lning immediatal'
[sta K. Beer, Me7
' below, I agree to the terms of the CONFESSION OF JUDGEMENT section.
Date
Date
S~A Fo~n 148 (10/98) Previous editions obsolete. Page 4/5
Bankers Systems, inc., St. Cloud, MN
11. GUARANTOR ACKNOWLEDGMENT OF TEP. MS.
Guarantor acknowledges that Guarantor has read and u~.nderstands the significance of all terms of the Note and th.is
Guarantee, including a21 waivers.
12. GUARANTOR NAM-~(S) AND SIGNATURE(S):
By signing below, each individu~ or entity becomes obligated as Guarantor under this Guarantee.
HealthCore, LLC, General Pert~ler
April 30, 2003
April 30, 2003
SBA Form 148 (10/98) Previous a~itions ~so~ete.
Page 5/5
Bankers Systems, Inc., St. Cloud, MN
SBA Loan #
SBA Loan Name
Date
Loan Amount"
Interest Rate
Borrower
Operating
Company
Lender
GP 626 380 40 09 HBG
HealthCore, LLC
April 30, 2003
500,000.00
WSJ Prime + 2.75%
He&RhCore, LLC
'Eno Legacy Bank
U.S. SmalI Business Administration
NOTE
1. PROMISE TO PAY:
lfi return for the Loan, Borrower promises to pay to the order of Lender the amoum of
FIVE HUNDRED THOUSAND AND NO/100
hnterest on the unpaid principal balance, and all other amount~ required by this Note.
Dollars,
2, DEFINITIONS:
"Collateral" means any property taken a~ security for payment of this Note or any guarantee of this Note.
"Guarantor" means each person or enti~ that signs a guarantee of payment of this Note.
"Loan" means the loan evidenced by this Note.
?~Loan Documents" means the documents reIamd to th~s loan signed by Borrower, any Guarantor, or anyone who
pledges collateral.
"SBA" means the Small Business Administration, an Agency of the United States of Amcdca.
SBA Form 147 (0~/03/02) Version 4.1
Page 1/6
Bankers Systems, thC., St. Ci~ud, MN ' '
3. P~.YMENT TERMS:
Borrower must make ail payments at the place Lender designates. The payme[t terms for this Note are:
The interest rate on this Note will fluctuate. The initial interest rate is 7.500°/° per year. This initial rate is the prime
rate on the date SBA received the loan application, plus 2.75%. The initial interest rate must remain in effect until
the first change period begins.
Sorrower must pay principal and interest payments of $7,547.00 every month, beginning one month from the
month of initial disbursement on this Note; payments must be made on the same day_as t__h.e date o~f init?
~disbJ.~s.ez~LeC_oE.tbis3~l_o.te in the months they are due.
Lender will apply each installment payment first to pay interest accrued to the day Lender receives the payment,
then to bring principal current, then to pay any late fees, and will apply any remaining balance to reduce principal.
The interest rate will be adjusted quarterly (the "change period").
The "Prime Rate" is the prime rate in effect on the first business day of the month in which an interest rate change
occurs, a published in the Wall Street Journal on the next business day.
'~' The adjusted interest rate will be 2.75% above the Prime Rate. Lender will adjust the interest rate on the first
calendar day of each change period. The change in interest rate is effective on that day whether or not Lender
gives Sorrower notice of the change. The initial interest rate must remain in effect until the first change period
begins.
Lender must adjust the payment amount at least a__nnua~lly as needed to amortize principal over the remaining term
of the note.
If SBA purchases the guaranteed portion of the unpaid principal balance, the interest rate becomes fixed at the
rate in effect at the time of the earliest uncured payment default. If there is no uncured payment default, the rate
becomes fixed at the rate in effect at the time of purchase.
All remaining principal and accrued interest is due and payeble 7 years from date of Note.
Late Charge: If a payment on this Note is more than 10 days late, Lender may charge Sorrower a late fee of up to
5% of the unpaid portion of the regulerly scheduled payment.
Loan Prepayment:
Notwithstanding any provision in this Note to the contrary:
Sorrower may prepay this Note. Borrower may prepay 20 percent or less of the unpaid principal balance at any
time without notice. If Sorrower prepays more that 20 percent of the Loan and the Loan has been sold on the
secondary market, Borrower must:
a. Give Lender written notice;
b. Pay all accrued interest; and
c. if the prepayment is received less than 21 days from the date Lender receives the notice, pay an amount equal
to 21 days interest from the date Lender receives the notice, less any interest accrued during the 21 days and paid
under subparagraph b., above.
SSA Form 147 (06/03102) Version 4.1
P~ge 2/6
Bankers Systems, inc., St. Cloud, MN
' 4, DE~:AULT:
Borrower is in default under th~s Note if Borrower does not make a payment when duc under this Note, or if Borrower
or Operating Company:
A. Fails to do anyti-dng required by tk~s Note and other Loan Documents;
B. Defaults on any other loan with Lender;
C. Does not preserve, or account to Lender' s satisfaction for, any of the Collateral or its proceeds;
D. Does not disclose, or anyone acting on their behalf does not disclose, any material fact to Lender or SBA;
E, Makes, or anyone acting on their behalf makes, a materially false or misleading representation to Lender or SBA;
F, Defaults on any inan or agreement with another creditor, if Lender believes the default may materially affect
Borrower's ability to pay this Note;
G. Fails to pay any taxes when due;
H. Becomes the subject of a proceeding under any bankruptcy or insolvency law;
L Has a receiver or liquidator appointed for any para of thek business or property;
J. M~as an assignment for the benefit of creditors;
K. Has eny adverse change in financial anndition or business operatinn that Lender believes may materially affect
Borrower's ability to pay this Note;
L. Reorganizes, merges, consolidates, or otherwise changes ownership or brininess structure without Lender's prior
wrmen consent; or
M. Becomes the subject of a civil or criminal action that Lender belleveg may materially affect Borrower' s ability to
pay this Note.
5. LENDER'S RIGHTS I~ TI--I~RE IS A DEFAULT:
Without notice or demand and without giving up any of its rights, Lender may:
A. Require immediate payment of all amounts owing under this Note;
B. Collect all amounts owing from any Borrower or Guarantor;
C. File sdit and obtain judgment;
D. Take possession of any Collateral; or
E. Sell, lease, or otherwise dispose of, any Collateral at public or private sale, with or without advertisement.
LENDER'S GENERAL POWERS:
Without notice and without Borrower' s consent, Lender may:
A. Bid on or buy the Collateral at its sale or the sale of another lienholder, at any price it chooses;
B. Incur expenses to collect amounts due under this Note, enforce the terms of this Note or any other Lean
Document, and preserve or dispose of the Collateral. Among other things, the expemes may include paymentz
for property taxes, prior liens, insurance, appraisals, environmental remediation costa, and reasonable attorney's
fees and costs. If Lender incurs such expenses, it may demand un-m~diate repayment from Borrower or add the
expenses to the principal balance;
C. Release anyone obligated to pay this Notc~
D. Compromise, release, renew, extend or substitute any of the Collateral; end
E. Take any action necessary to protect the Collateral or collect amounts owing on this Note.
~BA Form 1~,7 (06/03/0;~) Version 4.1
Bankers Systems, Inc., St. Cloud, MN
WI{EM FEDERAL LAW APPLIES:
When SBA is the holder, this Note will be interpreted and enforced under federal law, including SBA regulations.
Lender or SBA may use state or local procedures for filing papers, recurding documents, giving notice, foreclosing
Hens, and other purposes. By using such procedures, SBA does not waive any federal immunity from state or local
control, l~nalty, tax, or liability. As to this Note, Borrower may not clash or assert against SBA any loc~] or state law
to deny any obligation, defeat any claim of SBA, or preempt federal law.
$. SUCCESSORS AND ASSIGNS:
Under this Note, Borrower and Operating Company include the successors of each, and Lender includes its successors
and assigns.
9. GENERA3~ PROVISIONS:
A. Allindividualsandantitiessigningtl'ftsNotearejointlyandseverallyHable.
B. Borrower waives all sttretyskip defenses.
C. Borrower must sign all documents necessary at any time to comply with the Loan Documents and to enable
Lender to acquire, perfect, or maintain Lender's liens on Collateral.
D. Lender may exercise any of its rights sepatately or together, as many times and in any order it chooses. Lender
may delay or forgo enforcing any of its fights without g~ving up any of them~
E. Borrower may not use an oral statement of Lender or SBA to cuntradict or alter the writmn terms of thls Note.
F. If any p~rt of this Note is unenforceable, all other parts rem~n in effect
G. To the extent allowed by law, Borrower waives all Remands and notices in eormeetiun with this Note, including
presentment, demand, protest, and notice of dishonor. Borrower also waives any defenses based upon any claim
that Lender did not obtain any guarantee; did not obtain, perfect, or maintain a lien upon Collateral; impaired
Collateral; or dicl not obtain the fair market value of Collateral at a sale.
Page ~
Banksr~ Systems, Inc., SL Cloud, MN
10. ~TATE-SPECIFIC PROVISIONS:
WARRANT OF AUTHORITY TO CONFESS JUDGEMENT, Upon defauR, in addition to all other remedies and rights available to
you, by signing below I [rrevoc~tt31y authorize the prothonotary, clerk, or any attorney to appear in any court of record having
jurisdiction over this matter and to conless judgment against me at any time without stay of execution, I waive notice, service of
process, and process. I agree and understand that judgment may be confessed against ma for any unpaid principal, accrued
charges due on this Note, plus collection costs and reasonable attorneys' fees up to 15 percent of the judgement. The exercise of
the power to confess judgment will not exhaust this warrant of a~thorit~ to understand that my property may be seized without prior
notice to satisfy the debt owed, i knowingly, intentionatly, and voluntarily waive any and all constitutionai rights I have to
pre-deprivation notice and hearing under federal and state laws and fully understand the consequences of this waiver.
/.B~igning immediately below, I agree to the terms of the CONFESSION OF JUDGEMENT section.
/Je~ine J.~Jerr, Me~nb~r Date
/t~rist~ K. Seer, Meml~r Date
S~A. Form 147 (06/03/02) Vets[on 4. t
Sankers Systems, Inc., St. Cloud, MN
11. BORROWER' S NAME(S) AND SIGNATLIRE(S):
By signing below, :ach individual or entity b¢com:s obligated under this Not: as Bon-owcr.
Hea. lthCore, LI-C
April 30, 2003
April 30, 2003
SBA Fo~rn 147 (06/~3/02) Version 4.1
Page 6/6
Bankers ~ystems, inc., St. Cloud, MN
TUCKER
F. Stephenson Matthes
smatthes@tuckedew,com
September 16, 2004
VIA CERTIFIED MAIL, RETURN RECEIPT REQUESTED
NO. 7002 2410 000t 2367 2348 AND FIRST CLASS MAIL
Jenine J. Kerr
Krista K. Baer
HealthCore, LLC
47 West Pomfret Street
Carlisle, PA 17013
RE:
Promissory Note dated April 30, 2003 (SBA Loan) in Principal Amount of
$500,000 Between HealthCore, LLC and The Legacy Bank
Notice of Default and Demand for Payment
Dear Ms. Kerr and Ms. Beer:
This office represents The Legacy Bank ("Legacy" or "Lender").
Reference is made to that certain Promissory Note dated April 30, 2003 (the "Note") in
the principal amount of $500,000, which was executed and delivered to Legacy by
HealthCore, LLC ("Borrower"). Reference is further made to that certain Commercial
Security Agreement dated April 30, 2003 (the "Security Agreement"), which was
executed and' delivered by the Borrower to Legacy.
The paragraph of the Note entitled "DEFAULT" provides, in p~irt, that Borrower will be in
default if "Borrower does not make a payment when due under, this Note or if Borrower
or Operating Company: la) fails to do anything required by this Note and other Loan
Documents; lb) defaults on any other loan with Lender; lc) does not preserve or account
to Lender's satisfaction for, any of the Collateral or its proceeds; (d) fails to pay any
taxes when due; ...". The Note provides that upon default, Lender may ',la) require
immediate of all amounts owing under this Note; lb) collect all amounts owing from any
Borrower or Guarantor; lc) file suit and obtain judgment; (d) take possession of any
Collateral; or (e) sell, lease or otherwise dispose of any Collateral at public or private
sale with or without advertisement."
Borrower is presently in default for numerous reasons including a failure to make
payments when due on several loan obligations to Legacy, as well as for failing to make
tax payments when due.
Pursuant to the direction of Legacy Bank, we hereby notify you that Legacy Bank
declares the entire balance under the Notes immediately due and payable and demands
immediate payment of all principal, interest, and fees, currently $444,454.49, together
with accruing interest, attorneys' fees and other expenses, This balance is current as of
September 15, 2004, but does not include attorneys' fees and costs. For a complete
breakdown of the same, please contact the undersigned.
Tucker Arensberg, P.C. 111 North Front Street RO. Box 889 Harrisburg, PA 17108 w'~w,tuckerlaw.cQrn
~ ~ p. 800.257.4-121 p. 717.234.41
TUCKER AREN
Jenine J. Kerr
Krista K. Baer
September 16, 2004
Page 2
Payment should be made by cashier's check or wire transfer to The Legacy Bank, 2600
Commerce Drive, Harrisburg, PA 17110. The Legacy Bank reserves all rights and
remedies that it has under the Note, any other loan documents executed in connection
with the Note, any other loan documents by the Borrower, any third par[y obligor, any
pledgor, any guarantor and/or at law or in equity.
Thank you for your immediate attention to this realtor.
Very truly yours,
i!eC*KER ARENSBERG, P.C.
phenson Matthes
FSM/dth
CO;
71852.1
Jenine J. Kerr
Ronald W.'Baer
Krista K. Baer
W&C Realty & Holdings, L.P.
HealthCore of' Maryland, LLC
HealthCore of Ohio, LLC
TUCKER AREN
F. Stephenson Matthes
smatthes~tuckedaw.com
September 22, 2004
VIA FACSIMILE, CERTIFIED MAIL, RETURN RECEIPT REQUESTED
NO. 7002 2410 0001 2367 2782 AND FIRST CLASS MAIL
W&C Realty & Holdings, L.P.
47 West Pomfret Street
Carlisle, PA 17013
RE:
Guaranty of Promissory Note dated April 30, 2003 (SBA Loan) in
Principal Amount of $500,000 Between HealthCore, LLC and The Legacy
Bank
Notice of Default and Demand for Payment
To Whom It May Concern:
This office represents The Legacy Bank ("Legacy" or "Lender").
Reference is made to that certain Promissory Note dated April 30, 2003 (the "Note") in
the principal amount of $500,000, which was executed and delivered to Legacy by
HealthCore, LLC ("Borrower"). Reference is further made to that certain Commercial
Security Agreement dated April 30, 2003 (the "Security Agreement"), which was
executed and delivered by the Borrower to Legacy. Reference is further made to that
certain Unconditional Guaranty dated April 30, 2003 (the "Guarantee"), which was
executed and delivered to Legacy by W&C Realty & Holdings, L.P. (the "Guarantor").
The paragraph of the Note entitled "DEFAULT" provides, in part, that Borrower will be in
default if "Borrower does not make a payment when due under this Note or if Borrower
or Operating Company: (a) fails to do anything required by this Note and other Loan
Documents; (b) defaults on any other loan with Lender; (c) does not preserve or account
to Lender's satisfaction for, any of the Collateral or its proceeds; (d) fails to pay any
taxes when due; ...". The Note provides that upon default, Lender may "(a) require
immediate of all amounts owing under this Note; (b) collect all amounts owing from any
Borrower or Guarantor; (c) file suit and obtain judgment; (d) take possession of any
Collateral; or (e) sell, lease or otherwise dispose of any Collateral at public or private
sale with or without advertisement."
Borrower is presently in default for numerous reasons including a failure to make
payments when due on several loan obligations to Legacy, as well as for failing to make
tax payments when due, By letter dated September 16, 2004, Legacy declared the
Borrower to be in Default under the Note and made demand for immediate payment in
full of all amounts due and owing under the Note.
Pursuant to Section 1 of the Guarantee, Guarantor agreed to pay all amounts due under
the Note when Lender makes written demand upon the Guarantor for payment.
Tucker Arensberg, P,C. 111 North Front Street RO. Box 889 Harrisburg, PA 17108 www,tuckedaw.com
p. 600.257.4121 p, 717.234.4121 f. 717.232.6802
TUCKER AREN
W&C Realty & Holdings, L.P.
September 22, 2004
Page 2
Pursuant to the direction of Legacy Bank, we hereby notify you that Legacy Bank hereby
makes demand for payment of the entire balance under the Note pursuant to the
Guarantee and demands immediate payment of all principal, interest, and fees, currently
$444,454.49, together with accruing interest, attorneys' fees and other expenses. This
balance is current as of September 15, 2004, but does not include attorneys' fees and
costs. For a complete breakdown of the same, please contact the undersigned.
Payment should be made by cashier's check or wire transfer to The Legacy Bank, 2600
Commerce Drive, Harrisburg, PA 17110. The Legacy Bank reserves all rights and
remedies that it has under the Note, any other loan documents executed in connection
with the Note, any other loan documents by the Borrower, any third party obligor, any
pledgor, any guarantor and/or at law or in equity.
Thank you for your immediate attention to this matter.
Very truly yours,
TUCKER ARENSBERG, P.C.
F. Stephenson Matthes
FSM/dth
cc: Jenine J. Kerr
Ronald W. Baer
Krista K. Baer
HealthCore, LLC
HealthCore of Maryland, LLC
HeaithCore of Ohio, LLC
TUCKER ARENSBERG, P.C.
By: F. Stephenson Matthes
PA I.D. No. 67408
111 North Front Street
P.O. Box 889
Harrisburg, PA 17108-0889
Telephone: 717-234-4121
Facsimile: 717-232-6802
THE LEGACY BANK,
2600 Commerce Drive
Harrisburg, PA 17110,
COURT OF COMMON PLEAS
CUMBERLAND COUNTY
Plaintiff,
CIVIL DIVISION
W&C REALTY & HOLDINGS, L.P.
47 West Pomfret Street
Carlisle, PA 17013,
NO.
Defendant.
VERIFICATION
Don Signor hereby states that he is a Loan Review Officer of The Legacy Bank,
and verifies that the statements made in the foregoing Complaint In Confession of
Judgment are true and correct to the best of his knowledge, information and belief. The
undersigned understands that the statements made therein are made subject to
penalties of 18 Pa. Cons. Stat. Ann. §4904 relating to unsworn falsification to
authorities.
Dated:
71993.1
The Legacy Bank
CERTIFICATE OF SERVICE
AND NOW, this --~ day of ~ ,2004, I, Dawn T. Heilman,
Legal Secretary to F. Stephenson Matthes, Esquire, for the firm of Tucker Arensberg,
P.C., hereby certify that I have this day served a true and correct copy of the within
document, by mailing same by U.S. Mail, Certified Return Receipt, postage prepaid,
addressed as follows:
W&C Realty & Holding, L.P.
47 West Pomfret Street
Carlisle, PA 17013
Dawn T. Heilman
72101.1
TUCKER ARENSBERG, P.C.
By: F. Stephenson Matthes
PA I.D. No. 67408
111 North Front Street
P.O. Box 889
Harrisburg, PA 17108-0889
Telephone: 717-234-4121
Facsimile: 717-232-6802
THE LEGACY BANK,
2600 Commerce Drive
Harrisburg, PA 17110,
Plaintiff,
W&C REALTY & HOLDINGS, L.P.
47 West Pomfret Street
Carlisle, PA 17013,
Defendant.
COURT OF COMMON PLEAS
CUMBERLAND COUNTY
CIVIL DIVISION
NO.
AFFIDAVIT
COMMONWEALTH OF PENNSYLVANIA
CUMBERLAND COUNTY
SS.
Don Signor, being duly sworn according to law, deposes and says that he is a
Loan Review Officer of The Legacy Bank, that he is duly authorized to make this
affidavit on behalf of Plaintiff; that the facts set forth in the foregoing Complaint In
Confession Of Judgment are true and correct to the best of his information and belief;
and that the Guarantee (as defined in the Complaint) which is attached as an Exhibit to
the Complaint In Confession Of Judgment is a true and correct copy of the original
executed by the Defendant.
Don Signor, L~er
The Legacy Bank
71994.1 Dame~ Be~, No~y Pul:~c
-2-
TUCKER ARENSBERG, P.C.
By: F. Stephenson Matthes
PA I.D. No. 67408
111 North Front Street
P.O. Box 889
Harrisburg, PA 17108-0889
Telephone: 717-234-4121
Facsimile: 717-232-6802
THE LEGACY BANK,
2600 Commerce Drive
Harrisburg, PA 171'10,
COURT OF COMMON PLEAS
CUMBERLAND COUNTY
Plaintiff,
W&C REALTY & HOLDINGS
47 West Pomfret Street
Carlisle, PA 17013,
CIVIL DIVISION
NO.
Defendant.
AFFIDAVIT OF NON-MILITARY SERVICE
COMMONWEALTH OF PENNSYLVANIA
CUMBERLAND COUNTY
SS
Before me, the undersigned Notary Public, in and for said County and State,
personally appeared Don Signor, Loan Review Officer of The Legacy Bank, Plaintiff
herein who, as an authorized representative thereof, being duly sworn according to law,
deposes and says that the Defendant is not in the military service o~the United States
of America, to the best of his knowledge, informat~/~ and b~
Don Signor, L~oan R~l'ew Officer
The Legacy Bank
Sw_~rn t~;~__dO and subscribed before
ay of Septe er, 200?.
TUCKER ARENSBERG, P.C.
By: F. Stephenson Matthes
PA I.D. No. 67408
111 North Front Street
P.O. Box 889
Harrisburg, PA 17108-0889
Telephone: 717-234-4121
Facsimile: 717-232-6802
THE LEGACY BANK,
2600 Commerce Drive
Harrisburg, PA 17110,
Plaintiff,
W&C REALTY & HOLDINGS, L.P.
47 West Pomfret Street
Carlisle, PA 17013,
Defendant. :
COURT OF COMMON PLEAS
CUMBERLAND COUNTY
CIVIL DIVISION
: NO.
AFFIDAVIT OF NONAPPLICABILITY OF
GOODS AND SERVICES INSTALLMENT SALES ACT
COMMONWEALTH OF PENNSYLVANIA
CUMBERLAND COUNTY
SS
Don Signor, being duly sworn according to law, deposes and says that he is a Loan
Review Officer of The Legacy Bank; that he is a duly authorized representative of Plaintiff; that
the Complaint In Confession Of Judgment does not arise out of a retail installment sale,
contract, or account, as defined under the Goods and Services Installment Sales Act, 69 Pa.
Stat. Ann. {}1101, et seq.; and that the foregoing facts are true and correct to the best of his
knowledge, information and belief. ~ ~
Don Signor, Loah Revery Officer
The Legacy Bank
Swor~ t,~ and Subscribed before me
~day of September, 20,,04.
TUCKER ARENSBERG, P.C.
By: F. Stephenson Matthes
PA I.D. No. 67408
111 North Front Street
P.O. Box 889
Harrisburg, PA 17108-0889
Telephone: 717-234-4121
Facsimile: 717-232-6802
THE LEGACY BANK,
2600 Commerce Drive
Harrisburg, PA 17110,
COURT OF COMMON PLEAS
CUMBERLAND COUNTY
Plaintiff,
CIVIL DIVISION
W&C REALTY & HOLDINGS
47 West Pomfret Street
Carlisle, PA 17013,
NO.
Defendant.
AFFIDAVIT OF INCOME
COMMONWEALTH OF PENNSYLVANIA
CUMBERLAND COUNTY
SS
Don Signor, being duly sworn according to law, deposes and says that he is a
Loan Review Officer of The Legacy Bank; that he is a duly authorized representative of
Plaintiff; and that to the best of his knowledge, information and belief t~e income of the
Defendant is in excess of $10,000.00 per year. /'
Don Signor, Loar~evie~)fficer
The Legacy Bank
Sworn to and Subscribed before me
/.~X'-day of September, 2004.
N'~tary Public
TUCKER ARENSBERG, P.C.
By: F. Stephenson Matthes
PA I.D. No. 67408
111 North Front Street
P.O. Box 889
Harrisburg, PA 17108-0889
Telephone: 717-234-4121
Facsimile: 717-232-6802
THE LEGACY BANK,
2600 Commerce Drive
Harrisburg, PA 17110,
COURT OF COMMON PLEAS
CUMBERLAND COUNTY
Plaintiff,
W&C REALTY & HOLDINGS, L.P.
47 West Pomfret Street
Carlisle, PA 17013,
Defendant.
CIVIL DIVISION
NO.
AVERMENT OF DEFAULT
COMMONWEALTH OFPENNSYLVANIA
CUMBERLANDCOUNTY
SS.
Don Signor, being duly sworn according to law, deposes and says that he is a Loan
Review Officer of The Legacy Bank, that he is a duly authorized representative of Plaintiff; that
the Defendant executed the Guarantee (as defined in the Complaint), true and correct copies of
which are attached to the Complaint; that the Defendant is in default under the Guarantee; and
that there is $445,615.25 due and owing under the G~/~rantee as~
Don Signor, LoarCRevie~;)fficer
The Legacy Bank
, o and subscribed before me
ay of September,,2p04.
TUCKER ARENSBERG, P.C.
By: F. Stephenson Matthes
PA I.D. No. 67408
111 North Front Street
P.O. Box 889
Harrisburg, PA 17108-0889
Telephone: 717-234-4121
Facsimile: 717~232-6802
THE LEGACY BANK,
2600 Commerce Drive
Harrisburg, PA 17110,
COURT OF COMMON PLEAS
CUMBERLAND COUNTY
Plaintiff,
CIVIL DIVISION
W&C REALTY & HOLDINGS, L.P.
47 West Pomfret Street
Carlisle, PA 17013,
NO.
Defendant.
AFFIDAVIT OF COMMERCIAL TRANSACTION
COMMONWEALTH OF PENNSYLVANIA
CUMBERLAND COUNTY
SS
Don Signor, being duly sworn according to law, deposes and says that he is a
Loan Review Officer of The Legacy Bank; that he is a duly authorized representative of
Plaintiff; that the underlying transaction relative to this Complaint In Confession Of
Judgment is a commercial transaction edge, i~fformation
to the best of his knowledge, i rmation and
belief.
Don ~Lo
'g o, ~,ad'Revi~y~'Officer
The Legacy Bank
Sworn to and subscribed before
li~c~ day~ of Sol,ember, 2004.
TUCKER ARENSBERG, P.C.
By: F. Stephenson Matthes
PA I.D. No. 67408
111 North Front Street
P.O. Box 889
Harrisburg, PA 17108-0889
Telephone: 717-234-4121
Facsimile: 717-232-6802
THE LEGACY BANK,
2600 Commerce Drive
Harrisburg, PA 17110,
Plaintiff,
W&C REALTY & HOLDINGS, L.P.
47 West Pomfret Street
Cadisle, PA 17013,
COURT OF COMMON PLEAS
CUMBERLAND COUNTY
CIVIL DIVISION
NO.
Defendant.
ACT '105 OF 2000 NOTICE
Pennsylvania Rule of Civil Procedure 2959 - Strikinq Off Judgment.
(a)(1) Relief From a judgment by confession shall be sought by petition. Except as
provided in subparagraph (2), all grounds for relief whether to strike off the judgment or to open it
must be asserted in a single petition. The petition may be flied 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
vo(untary, intelligent and knowing shall be raised only
YOU MAY TAKE ACTION TO STRIKE THE JUDGMENT BY FOLLOWING THE
PROCEDURE IN RULE 2959 WHICH IS AS FOLLOWS:
PURSUANT TO 42 PA. C.S.A. §2737.1, IF YOU WERE INCORRECTLY IDENTIFIED
AS A DEFENDANT IN THE COMPLAINT IN CONFESSION OF JUDGMENT, YOU MAY BE
ENTITLED TO COSTS AND REASONABLE ATTORNEY FEES AS DETERMINED BY THE
COURT.
A JUDGMENT HAS BEEN ENTERED AGAINST YOU BY CONFESSION OF
JUDGMENT.
(i) in support of a further request for a stay of execution where the court has
stayed execution despite the timely filing of a petition for relief from the judgment and the
presentation of prima facie evidence of a defense; and
(ii) as provided by Pennsylvania Rule of Civil Procedure 2958.3 or Rule 2973.3.
(3) If written notice is served upon the petitioner pursuant to Rule 2956,1(c)(2) or Rule
2973.1(c), the petition shall be filed within thirty days after such service. Unless the defendant
can demonstrate that there were compelling reasons for the delay, a petition not timely filed
shall be denied.
(b) If the petition states prima facie grounds for relief the court shall issue a rule to show
cause and may grant a stay of proceedings. After being served with a copy of the petition the
plaintiff shall file an answer on or before the return day of the rule, The return day of the rule
shall be fixed by the court by local rule or special order.
(c) A party waives all defenses and objections which are not included in the petition or
answer.
(d) The petition and the rule to show cause and the answer shall be served as provided
in Rule 440.
(e) The court shall dispose of the rule on petition and answer, and on any testimony,
depositions, admissions and other evidence. The court for cause shown may stay proceedings
on the petition insofar as it seeks to open the judgment pending disposition of the application to
strike off the judgment. If evidence is produced which a jury trial would require the issues to be
submitted to the jury the court shall open the judgment.
Dated and Served:
September .-~, 2004
By Certified Mail
Return Receipt Requested
(f) The lien of the judgment or of any levy or attachment shall be preserved while the
proceedings to strike off or open the judgment is pending.
TU~R ARENSBERG, P.C.
F. ~tephenson Matthes
PA'[~. No. 87408
111 North Front Street
P,O. Box 889
· Harrisburg, PA 17108-0889
Telephone: 717-234-4121
Facsimile: 717-232-8802
Attorneys for Plaintiff,
The Legacy Bank
71986.1
-2-
TUCKER ARENSBERG, P.C.
By: F. Stephenson Matthes
PA I.D. No. 67408
111 North Front Street
P.O. Box 889
Harrisburg, PA 17108~0889
Telephone: 717-234-4121
Facsimile: 717-232-6802
THE LEGACY BANK,
2600 Commerce Drive
Harrisburg, PA 17110,
·
COURT OF COMMON PLEAS
CUMBERI_~ND COUNTY
Plaintiff,
W&C REALTY & HOLDINGS, L.P.
West Pomfret Street
Carlisle, PA 17013,
Defendant.
C,V,L ,V,S,ON
NO.
NOTICE
Pursuant to Rule 236 of the Supreme Court of Pennsylvania, you are hereby
notified that a JUDGMENT BY CONFESSION has been entered against you in the
above-captioned proceeding. Copies of all documents that have been filed with the
Prothonotary in support of the Confession of Judgment are attached hereto.
If you have any questions concerning this Notice, please call, F. Stephenson
Matthes, Esquire, at (717) 234-4121.
71988.1