HomeMy WebLinkAbout04-4780TUCKER 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,
KRISTA K. BAER
47 West Pomfret Street
Carlisle, PA 17013,
Defendant.
COURT OF COMMON PLEAS
CUMBERLAND COUNTY
CIVIL DIVISION
NO.
ENTRY OF APPEARANCE
PRAEClPE 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, Krista K. Baer, 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)
TUCKER AR.Ei~BERG,~ ~
PA kD. No. 67408
111 North Front Street
P.O. Box 889
Harrisburg, PA 17108-0889
Telephone: 717-234-4121
Facsimile: 717-232-6802
72071.1
Attorneys for Plaintiff,
The Legacy Bank
-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,
KRISTA K. BAER
47 West Pomfret Street
Carlisle, PA 17013,
Defendant.
COURT OF COMMON PLEAS
CUMBERLAND COUNTY
CIVIL DIVISION
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
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)
PROTHONOTARY
72070.1
-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,
Plaintiff,
COURT OF COMMON PLEAS
CUMBERLAND COUNTY
v. CIVIL DIVISION
Defendant. :
KRISTA K. BAER
47 West Pomfret Street
Carlisle, PA 17013,
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, Krista K. Baer, is an adult individual with a last known
business 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
Agreement.
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.
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.
Pursuant to the terms of the Agreements, upon the occurrence of an event
-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 demand and default, 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 Commonwealth 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.
~ x 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
Dated:
72072,1
Attorneys for Plaintiff,
The Legacy Bank
-5-
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
KRISTA K. BAER
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.
72045.1
Don Signor, ~cer
The Legacy Bank
CERTIFICATE OF SERVICE
AND NOW, this"~>ck'~~ day of.~L~/~ - -f:~ /- , 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 Requested, postage
prepaid, addressed as follows:
Krista K. Baer
47 West Pomfret Street
Carlisle, PA 17013
72101.1
U.S. Sma]] Business Adnftnistration
UNCONDITIONAL GUARANTEE
SDA Loan #
SBA Loan Name
GP ~28 380 40 09 HBG
HealthCora, LLC
Ronald W. Beer
Kfista K. I~aer
HealthCom, LLC
Lender The Legacy ~ank
Date April 30, 2003
Note Amount 500,000.00
I. GUARANTEE:
Guarantor uncondit/onal/y guarantees payment to Lender of all amounts owing un&r the Note. This Guarantee remains
in effect undl the Note is paid in full. Guarantor must pay all amounts due under the Note when Lender makes written
demand upon Guarantor. Lender is not required to seek payment from any other source before demanding payment from
Guarantor.
2. NOTE:
The "Note" is the promissory note dated Apdl 30, 2003 in the principal amount of
FIVE HUNDRED THOUSAND AND NO/100 Do,am,
from Borrower to Lender, It includes any assumption, renewal, substitution, or replacement of the Note, and multiple
notes under a line of credit.
3. DEFI]'tITIONS:
"Collateral" means any property taken as security for paynmnt 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 Stat~s of Aw~'ica.
SBA Form 14~ (10/98) Previous editions obsolete.
Page
Bankers Systems, ~nc., St. Ctoud, MN
LENDER'S GENERAL POWERS:
Lender may take any of the following actions at any Ii.me, without notice, v, fithout Guarantor's consent, and without
making demand upon Guarantor:
A. Modify the terms of the Note or any other Lo;m Document except to increase the amounts due under the Note;
B, Refrain from talcing any action on the Note, the Collateral, or any guarantee;
C. Release any Borrower or any gaarantor of the Note;
D. Compromise or settle with the Borrower or any guarantor of thc Note;
E. Substitute or release any of tbe Collateral. whether or not Lender receives anything in rem.m;
F. Foreclose upon or otherwise obtain, and dispose of, any Collateral at public or private sale, with or without
adverdseman t;
G. Bid or buy at any sale of Collateral by Lender or any other llenholder, at any price Lender chooses; and
II. Exercise any rights it has, including those in the Note and otber Loan Documents,
These actions will not releas~ or reduce the obligations of Guarantor or create any rights or c]~Srn~ against Lender.
5. FEDERAL LAW:
When SBA is be holder, the Note and ti'tis Guarantee will be construed and enforced u~nder federal law, including SBA
regulations. Lender or SBA may use state or local procedures for filing papers, recording documents, giving notice,
foreclosing liens, and other purposes. By using such procedu~s, SBA does not waive any federal immunity fi'om state or
local control, penalty, tax, or liability. As to this Guarantee, Guarantor may not claim or assert any local or state law
against SBA to deny any obligation, defeat any claim of SBA, or preempt federal law.
6. RIGIITS, NOTICES, ,MND D1E1;ENSES THAT GUARANTOR WAIVES:
To the extent permi~d by law,
A. Guarantor waives all rights to:
I) Reqrdrepresentmant'protest'ordemanduponBorrow~r;
2) Redeem any Collateral before or after Lender disposes of it;
3) IIave any disposition of CoIlamral advertised; and
4.) Require a valuation of Collateral before or after Lender disposes of it.
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 i~action on the Note or Collator'al, such as disbursements, payment, nonpayment, a~celeration,
intent to anco]orate, assignment, collection activity, and incurnng embrcen~nt expenses;
5) Any change in the financial condition or business operations of Borrower or any guarantor;,
6) Any changes in the mrms of the Note or other Loan Doctm~nts, except increases in tbe amounts due under the
Note; and
7) The time or place of any sale or other disposition of Collateral.
C. Guarantor waives defenses based upon any claim that:
1) Lender failed to obtain any ffaarantee;
2) Lender failed to obtain, perfect, or maintain a security intet~st in any prvp~rey offerecl or taken as Collator'al;
3) Lender or others improperly valued or inspocted the Collateral;
at) The CulIateral changed in value, or was neglected, lost, destroyed' or tmdea-h2sumck
8ankom Systems, Inc., St. Cloud, MN
5) Lander impaired thc Collateral;
6) I~nder c~d not dispose of any of the Collateral;
7) Lender did not conduct a commercially reasonable sale;
8) Lender did not obt~ the fa~ market value of the Coliat~ral;
9) Lender did not make or perfect a claim upon the death or disability of Borrower or any guarantor of the
Note;
10) The financial condition of Borrower or any guarantor was overstated or has adversely changed;
1 I) Lender made coors or omissions in Loan Documents or aams,~U-atiun of the Loan;
12) I~nder did not seek payment from the Borrower, any other gum-anters, or any CoLlateral before demanding
payment from Guarantor:
13) Lender impaired Guarantor's suretyship rights;
14) Lender modified the Note terms, 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 rem~n~ liable for all other amounts;
15) Borrower has avoided liability on the Note; or
16) Lender has taken an action allowed under the Note, this Guarantee, or ocher Loan Documents.
7. DUTIES AS TO COLLATERAL:
Guarantor wil/preserve the Collateral pledged by Guarantor to secure this Guarantee, Lender has no duty to preserve
or dispose of any Collateral.
8. SUCCESSORS AND ASSIGNS:
Under this Guarantee, Guarantor includes hal~s and succeasor~, and Lender includes its succ~sors and assigns.
9. GENERAL PROVISIONS:
SE~A Form 148 (10/98) Previous editions obsolete.
A, ENFORCEMENT EXPENSES. Guarantor promises to pay all expenses Lauder incu. r~ to enforce ti~s Guarantee,
including, but not limited to, attorney's fees and costs.
B. SBA NOT A CO-GUARANTOR. Guarantor's liability will continue even if SBA pays Lender. SBA is not a
co-guarantor with Guarantor. Guarantor has no tight of con,button from SBA.
C. SUBROGATION RIGHTS. Guarantor has no subrogation fights as to the Note or the Collater~fl until the Note is
paid in full.
D. JOINT AND SEVERAL LIABILITY. Ail individuals and entities sigr~g as Guarantor are jointly and several/y
liable.
E. DOCUMENT SIGNING. Guarantor must sign all documents necessary at any time to comply with the Loan
Documents and to enable Lender to acqu/re, perfect, or maintain Lender's lier~ on Collateral.
F. FINANCIAL STATEMENTS. Guarantor must g~ve Lender financial statements as Lendorrequires.
G. LENDER'S 1LIGHTS CUMULATIVE, NOT WAIVED. Lender may exerc4se any of its rights separately or
together, as many times as it chooses, Lender may delay or forgo enforcing any ofi~ rights without losing or
impairing any of them.
OPAL STATEMENTS NOT BINDING. Guarantor may not use an oral statement to contradict or alter the written
terms of die Note or this Guarantee, or to raise a defense to this Guarantee.
SEVERABILITY. If any part of this Guarantee is found to be unenforceable, ~ other parts wi~ remain ia effect
CONSK)ERATION. The consideration for th/s Guarantee is the Loan or any accommodation by Lender as to the
Ban~ers S',/stems, inc., ~. Cloud, MN
I0, 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 f irrevocably authorize the prothonotary, clerk, or any attorney to appear in any court of record having
jurisdiction over this matter and to confess iudgment against me at any time without stay of execution, I waive notice, sea, ice 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 knowingty, intentionally, and voluntarily waive any and a~f constitutional rights ] have to
pre-deprivation notice and hearing under federal and state laws and fully understand the consequences of this waiver.
By signing immediately below, I agree to the terms of the CONFESSION OF JUDGEMENT section.
Date
Date
SBA Form 14~ (10/~8) Previous editions obsolete. Page 4/5
Bankers Systems, Jno., St. Cloud, MN
I 1. GUARANTOR ACKNOWLEDGMENT OF TERMS.
Guarantor acknowledges that Guarantor has read and understands the $ignificanc~ of ail terms of the Note and th/s
Guarantee, including all waivers.
12. GUARANTOR NAMe(S) AND SIGNATURE(S):
By signing below, each individuai or entity becomes obligated as Guarantor under this Guarantee.
Apd130, 2003
April 30, 2003
SBA Form 148 (10/98) Previous editions obsolete.
Page 5/5
Bankers Systems, Inc,, St. Cloud, MN
SBA Loan # GP 626 380 40 09 HBG
SBA Loan Name HealthCore, LLC
Date April 30, 2003
Loan Amount ' 500,000.00
Interest Rate WSJ Prime + 2.75%
HealthOore, LLC
Operating
Company
Lender
The Legecy Bank
U.S. Small Business Administration
NOTE
1. PROMISE TO PAY:
Iff remm for the Loan, Borrower pmrnises to pay to the order of I.,~nder the amount of
FIVE HUNDRED THOUSAND AND NO/100
interest on the unpaid pnncipal balance, and all other amounts required by this Note.
2. DEFINITIONS:
"Collateral" means any property taken az security for payment of this Note or any guaxantee of this Note.
"Guarantor" means each person or entity that signs a guarantee of payment of this Note.
"Loan" means the loan evidenced by this Note.
:eLoan Documents" means the documents related to this loan signed by Borrower, any Guarantor, or anyone who
pledges collateral.
"SBA' means the Small Business Administration, an Agency of the United States of America.
SBA Form 147 (06/0;~02) Version 4.1
Page 1/6 '
Bankers Systems, Inc,. St. C{°ud, MN '
3. PAYMENT TERMS:
Borrower must make all payments at the place Lender designates. The payment 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 lean application, plus 2.75%. The initial interest rate must remain in effect until
the first change period begins.
Borrower 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 the date of initial
~disb. ume, me.z'tLo~bJs_b[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 witl 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 Borrower 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~ly 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 payable 7 years from date of Note.
Late Charge: If a payment on this Note is more than 10 days late, Lender may charge Borrower a late fee of up to
5% of the unpaid portion of the regularly scheduled payment.
Loan Prepayment:
Notwithstanding any provision in this Note to the contrary:
Borrower may prepay this Note. Borrower may prepay 20 percent or less of the unpaid principal balance at any
time without notice, if Borrower 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.
SBA Form 147 (06/Q:3/02) Version 4,1
Page 2J6
Bankers Systems, Inc., St. Cloud, MN
4. DEFAULT:
Borrower is in default under this Note if Borrower does oot 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. Defauks on any other loan with Lander;,
C. D~as n~t preserve~ ~r acanunt t~ Lend~r' s satisfact~~n fcr~ any ~f the C~liateral ~r its proceeds;
D. D~es n~t disc~se~ ~r any~ne ac~ing ~n thek beha~f d~es n~t ~sc~se~ an~ material fact te Lender or SBA;
E. Makes, or anyone acting on their behalf makes, a materially false or misleading representation to Lender or SBA;
F. Defanlts on any loan or agreement with another creditor, if Lender balieves the defauh 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;
1. Ha~ a receiver or liquidator appointed for any part of their business or property;
J. Makes an assignment for the benefit of creditors;
K. Has any adverse change in ~nancia~ cunditi~n ~r businass ~peratien that Lender belleves may materia~~y affect
Borrower's ability to pay this Note;
L. ~e~rgan~zes~m~rges~c~ns~lldates'~r~therwisechanges~wnersbip~rbusinessstm~turewith~utLender'spri~r
written consent; or
M. Becomes the subject of a civil or criminal action that Lender believe~ may materially affect Borrower's ability to
pay this Note.
5. LENDER'S RIGHTS I1: THERE IS A DEFAULT:
Without ootice or demand and without giving up any of its rights, Lender may:
A. Require immediate payment of all amounts owing under this Note;
B. Collect all amounts owing from any Borrower or Guarantor,
C. File suit and obtain judgment;
D. Take possession of any Collateral; or
E. Sell, lease, or otherwise dispose of, any Collateral at public or private sale, with or without advertisement.
6. LENDER'S GENERAL POWERS:
Without notice and without Borrower's consent, lender may',
A. Bid on or buy the Collateral at its sale or the sale of another lienholder, at any price it chooses;
B. Incur expenses to collect amounts due under this Note, enforce the terms of this Note or any other Loan
Document, and preserve or dispose of the Collateral. Among other things, the expemes may include payments
for property taxes, prior liens, insurance, appraisals, environ.mental remediation costs, and reasonable attorney's
fees and costs. If Lender i_ncors such expenses, it may demand unmediate repayment from Borrower or add the
expenses to the pnncipal balance;
C. Release anyone obligated to pay this Note;
D. Compromise, release, ranew, extend or subslitute any of the Collateral; and
E. Take any action necessary to protect the Collateral or collect amounts owing on this Note.
SBA Form 1 ~7 (06/03/02) Vemion 4.1
Page 3/6
Bankers Systems, inc., St. Cloud, MN
7. WHEN FEDERAL LAW APPLIES:
When SBA is the holder, this Note will be interpreted and etfforced under federal law, including SBA regulations.
Lender or SBA may use state or local procedures for filing papers, recording documents, giving notice, foreclosing
liens, and other purposes~ By using such procedures, SBA does not waive any federal immu~ty from state or local
cuntxol, penalty, tax, or liability. As to th~s Note, Borrower may not cliRm or asser~ against SBA any local or state law
to deny any obligation, defeat any claim of SBA, or preempt federal law.
8. SUCCESSORS AND ASSIGNS:
Under this Note, Borrower and Operating Company include the successo~ of each, and Lender includes i~ successors
and a~signs.
9. GENERAL PROVISIONS:
A. All individuals a~d entities signing this Note are jointly and severally liable.
B. Borrower waives all suretyship defenses.
C. Borrower must sign all documen~ necessary at any time to comply with the Loan Doanment~ and to enable
Lender to acquix-e, perfect, or m~intain Lender's liens on Collateral.
D. Lander may exercise any of its tights separately or together, a~ many times and in any order it chooses. Lender
may delay or forgo enforcing any of its right~ without giving up any of them.
E. Borrower may not use an oral statement of Lender or SBA to contradict or alter the written terms of this Note.
F. If any pan of this Note is unnnforeeable, all other parts remain in effect.
G. To the extent allowed by law~ Borrower waives all demands and notices in connection with this Note, including
presentment, demand, protest, and notice of dishonor. Borrower also waives any defenses b~ed upon any claim
that Lender did not obtain any guarantee; did not obtain, perfect, or maintain a lien upon Collateral; impaired
Collateral; or did not obtain the fair market value of Collateral at a sale.
Bankers Systems, Ina,, St. Cloud, MN
10. STATi:~-$P~.CI~[;IC 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 underetand 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 properly may be seized without prior
notice to satisfy the debt owed. I knowingly, intentionally, and voluntarily waive any and all constitutional rights [ have to
pro-deprivation notice and headng under federal and state laws and fully understand the consequences of this waiver.
~igning immediately below, [ agree to the terms of the CONFESSION OF JUDGEMENT section.
/Jehina J..[ierr, Member Date
j/'~.dst~. K, Beer, Mem~r Date
Form 147 (06/03~02) Version 4.1
Page 5/6
B~nkers Systems, thc., St, Cloud, MN
11. BORROWER'S NAME(S) AND SIGNATURE(S):
By signing b~Iow, ~ach individual or ~ntity b~cemes obligated under this Not~ as Borrower.
HealthCore, LLC
Apd130, 2003
Apdl 30, 2003
SBA Form 14-7 (06/03Y~) Vemlon 4..1
Bankers Systems, Inc,, Bt. Cloud, MN
TUCKER ARENSBERG
Attorneys
F. Stephenson Matthes
srnatthes@tuckedaw, com
September 16, 2004
VIA CERTIFIED MAIL, RETURN RECEIPT REQUESTED
NO, 7002 2410 0001 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. Baer:
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 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; (al 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 "(al 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 (el sell, lease or otherwise dispose of any Collateral at public or pdvate
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 $444,454.49, together
with accruing interest, attorneys' fees and other expenses. This balance is current as of
September 15, 2004, but does not include attorneys' fees and costs. For a complete
breakdown of the same, please contact the undersigned.
Tucker Arensberg,
North Front Street RO. Sox 889
800.257.4121 p. 717.234.4121
Harrisburg, PA 17108
f. 71 ~.'.~2.6802
www. tuckedaw, com
TUCKER ARENSBERG
Attorneys
Jenine J. Kerr
Krista K. Baer
September 16, 2004
Page 2
Payment should be made by cashier's check or wire transfer to The Legacy Bank, 2600
Commerce Drive, Harrisburg, PA 17110. The Legacy Bank reserves all rights and
remedies that it has under the Note, any other loan documents executed in connection
with the Note, any other loan documents by the Borrower, any third party obligor, any
pledgor, any guarantor and/or at law or in equity.
Thank you for your immediate attention to this matter.
Very truly yours,
T~CkER ARENSBERG, P.C.
F. S~phenson Matthes
FSM/dth
CC:
71852.1
Jenine J. Kerr
Ronald W.' Baer
Krista K. Baer
W&C Realty & Holdings, L.P.
HealthCore of Maryland, LLC
HealthCore of.Ohio, LLC
TUCKER ARENSBERG
Attorneys
F. Stephen$on Matthes
sm att hes@t uckedaw.com
September 22, 2004
VIA FACSIMILE, CERTIFIED MAIL, RETURN RECEIPT REQUESTED
NO. 7002 2410 000t 2367 2812 AND FIRST CLASS MAIL
Krista K. Baer
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 Krista K. Baer. (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, RC. 111 North Front Street P.O. Box 889 Harrisburg, PA 17108 www.tuckerlaw.com
p. 800.257.4121 p. 717.234.4121 f. 717.232.6802
TUCKER, AREN
Krista K. Baer
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
HeaitCore of Maryland, LLC
W&C Realty & Holdings, L.P.
HealthCore of Ohio, LLC
HealthCore, LLC
Tucker Arensberg, RC. 111 North Front Street I~O. Box 889 Harrisburg, PA 17108 www~tuckerlaw.com
p. 800.257.4121 p. 717.234.4121 f. 717.232.6802
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,
KRISTA K. BAER
47 West Pomfret Street
Carlisle, PA 17013,
Defendant.
COURT OF COMMON PLEAS
CUMBERLAND COUNTY
CIVIL DIVISION
NO.
AFFIDAVIT
COMMONWEALTH OF PENNSYLVANIA
SS.
CUMBERLAND COUNTY :
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,,'~.oar~eview Officer
The Legacy Bank
Sworn~ t~ ~and subscribed before me
tl ~ day of September, 2004.
-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
CUMBERLAND COUNTY
Plaintiff,
v. CIVIL DIVISION
KRISTA K. BAER
47 West Pomfret Street
Carlisle, PA 17013,
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/of the United States
of America, to the best of his knowledge, information and belief./'
Don Signor, ~fficer
The Legacy Bank
~Pu~b i~to and subscribed before
day of Sep_/t~mber, 2004.
b~y C, onmisaoo F. xptr~ .~e~. e, 3a~'
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,
v. : CIVIL DIVISION
KRISTA K. BAER
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 bel~f the income of the
Defendant is in excess of $10,000.00 per year. __
Don Signor, Loaf{ Rev'~v Officer
The Legacy Bank
Sw_or~.~ and Subscribed before me
t ay ofS. eptembe 2004.
l~ry Public
72048.1
Nc~;~a[ Sea~
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,
KRISTA K. BAER
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 :
SS
CUMBERLAND COUNTY
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 corre~ to the best of his
knowledge, information and belief, ~ ~
Don Signor, LoafCRevi~'Officer
The Legacy Bank
.. nd Subscribed before me
?tember, ~0~
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
KRISTA K. BAER
47 West Pomfret Street
Carlisle, PA 17013,
Defendant.
NO,
AVERMENT OF DEFAULT
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 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 Guarantee as of Jul,y76, 2004.
Don Signor, Lo~
£-
The Legacy Bank
Sw, oL.n to and subscribed before me
~o~i.a~lic.~ iday of September,~~004.
72050.1
cr~yo~ Ha,m~, ~ ~ I
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
KRISTA K. BAER
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 to the best of his knowledge,~.information and
belief. /~/ ~ce'
Don Signor, L r
The Legacy Bank
Swam to and subscribed before
/n~~da~of Se~
N6t~_ry Public
72051.1
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,
KRISTA K. BAER
47 West Pomfret Street
Carlisle, PA 17013,
Plaintiff,
COURT OFCOMMON PLEAS
CUMBERLAND COUNTY
CIVIL DIVISION
NO,
Defendant. :
ACT 105 OF 2000 NOTICE
A JUDGMENT HAS BEEN ENTERED AGAINST YOU BY CONFESSION OF
JUDGMENT,
PURSUANT TO 42 PA. C,S.A. §2737.1, IF YOU WERE INCORRECTLY IDENTIFIED
AS A DEFENDANT IN THE COMPLAINT IN CONFESSION OF JUDGMENT, YOU MAY BE
ENTITLED TO COSTS AND REASONABLE ATTORNEY FEES AS DETERMINED BY THE
COURT.
YOU MAY TAKE ACTION TO STRIKE THE JUDGMENT BY FOLLOWING THE
PROCEDURE IN RULE 2959 WHICH IS AS FOLLOWS:
Pennsylvania Rule of Civil Procedure 2959 - Striking Off Judcjment.
(a)(1) Relief From a judgment by confession shall be sought by petition. Except as
provided in subparagraph (2), all grounds for relief whether to strike off the judgment or to open it
must be asserted in a single petition, The petition may be filed in the county in which the judgment
was originally entered, in any county to which the judgment has been transferred or in any other
county in which the sheriff has received a writ of execution directed to the sheriff to enforce the
judgment.
(2) The ground that the waiver of the due process dghts of notice and hearing was not
voluntary, intelligent and knowing shall be raised only
(i) in support of a further request for a stay of execution where the court has
stayed execution despite the timely filing of a petition for relief from the judgment and the
presentation of prima facie evidence of a defense; and
(ii) as provided by Pennsylvania Rule of Civil Procedure 2958.3 or Rule 2973.3.
(3) If written notice is served upon the petitioner pursuant to Rule 2956.1(c)(2) or Rule
2973.1(c), the petition shall be filed within thirty days after such service. Unless the defendant
can demonstrate that there were compelling reasons for the delay, a petition not timely filed
shall be denied.
(b) If the petition states prima facie grounds for relief the court shall issue a rule to show
cause and may grant a stay of proceedings. After being served with a copy of the petition the
plaintiff shall file an answer on or before the return day of the rule. The return day of the rule
shall be fixed by the court by local rule or special order.
(c) A party waives all defenses and objections which are not included in the petition or
answer.
(d) The petition and the rule to show cause and the answer shall be served as provided
in Rule 440.
(e) The court shall dispose of the rule on petition and answer, and on any testimony,
depositions, admissions and other evidence. The court for cause shown may stay proceedings
on the petition insofar as it seeks to open the judgment pending disposition of the application to
strike off the judgment. If evidence is produced which a jury trial would require the issues to be
submitted to the jury the court shall open the judgment.
(f) The lien of the judgment or of any levy or attachment shall be preserved while the
proceedings to strike off or open the judgment is pending. ~
TUC R N .
111 North Front Street
Dated and Served: P.O. Box 889
September ~_, 2004 Harrisburg, PA 17108-0889
By Certified Mail Telephone: 717-234-4121
Return Receipt Requested Facsimile: 717-232-6802
Attorneys for Plaintiff,
The Legacy Bank
72068.1
-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
CUMBERLAND COUNTY
Plaintiff,
CIVIL DIVISION
KRISTA K. BAER
47 West Pomfret Street
Carlisle, PA 17013,
NO.
Defendant.
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.
72069.1